CORNELL UNIVERSITY LIBRARY 3 1924 088 299 213 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/cu31924088299213 REPORTS CASES ADJUDQED IN THE itouvt of €^^ a.nttv Si NEW-YORK. BY WILLIAM JOHNSON, CO0IISELLOR AT LAW. VOL. L "-, CdNTAJNING THE CASES PKOM MAKCH, 1814, TO DECEMBEB,! 1815, INCLtrSITE. SMGJON-B EDITION, REVISED AND GORBEGTED.' ANNOTATED, BY STEWART EAPALJE. KEW YORK : BA]SrKS & BROTHERS,, LAW PUBLISHERS', No. 144 NASSAU STREET. ALBANY: 475 BROADWAY. 1883. - .. - NAMES 01* THE CHANCELLORS OF THE STATE OP NEW YORK, SINCE 1776. ROBERT R. LIVnsraSTON, Esq., appointed October 17, 1777. JOHN LANSING, Jun. Esq., appointed October 38, 1801. JAMES KENT, Esq., appointed Vebruamj 25, 1814. SOUTHERN DISTRICT OP NEW YORK, ««.■ BE IT REMEMBERED, That on the eleventh day of Jannaty, A.D. 1830, in the flfty- fonrth year ot the Independence of the United Slates of America, William Johnson, of the said dislrict, hath deposited in this oSace the title of a book, the right whereof he claims as author in the^wotds following, to wit : "Reports of Cases adjudged in the Court of Chancery of New York, by Wiluam Johnson, Counsellor at Law. Vol. I." In conformity to the act ot the Congress of the United States, entitled " An act for the encouragement of learning, by securing the copies of maps, charts and books, to the authors and proprietors of such copies, during the times therein mentioned ;" and also, to the act entitled " An act supplementary to an act entitled An act for the encouragement of learning, by securing the copies of maps, charts and books, to the authors and proprietors of such copies daring the times therein mentioned, and extending the benefits thereof to the arts of designing, engraving and etching historical -and other prints." FREDERICK J. BETTS, Clerk of the Southern District qfNew York. Entered according to Act of Congress, in the year one thousand eight hundred and fifty-eight. By BANKS & BROTHERS, in the clerk's office of the district court of the southern district of New York. Entered according to act of Congress, in the year one thousand eight hundred and eighty-three, Br BANKS &, BROTHERS, the office of the Librarian of Congress at Washington, PREFACE. The system of Equity forms a most valuable portion ( f that noble inheritance of Law and Liberty derived from our ances- tors. A Court of Equity, as distinct from the Courts of Law, is to be found in the earliest records of our juridical history. It was one of the first acts pf the Assembly, after the people of the colony were admitted to a share in the legislative power, to de- clare that there should be a Court of Chancery, which should hear and determine all matters of Equity, and be esteemed the Supreme Court of the Colony.* Though the Governor and his Council refused to concur with the Assembly, it was not owing to any difference of opinion be- tween them, as to the necessity or utility of such a Court, f The erecting of a Court of Chancery, afterwards, by an ordinance of the 2d September, 1701, to consist of the Governor and Council, rendered 't extremely unpopular ; and frequent, but fruitless at- • Vid. Smith's Hist, of J^ew-York, (Carey's Ed.) 87, 88. 113, 113. t " A Court of Equity," says Smith, (Hist, of New-Tork, 274. 276.) " is abaolotely neces sary : but whether private property ought to be in the hands of the Goifernor, I leare it to tthers to determine." In 1752, the officers of the Court were two masters, two clerks, one examiner, a regi» ter, aird a sergeant at arms. 3 i PREFACE. tempts were made by the Assembly tt destroy the Court. It continued to be held under that ordinana , though little business appears to have been transacted in it until its organization, in March, 1778, under the Constitution of the State. Since thai period, the business of the Court of Chancery has continued t(i increase, and it has enjoyed, equally with the other Courts, the public confidence and favor. That its decisions should not before have been made public in an authentic and durable form, has been matter of surprise, con- sidering the spirit of public discussion and freedom of inquiry which pervade every branch of our government, and which re- quire that every thing that concerns the community should not only be generally known, but fully anderstood. By an act of the legislature, passed the 13th April, 1814, it has been made " the duty of the reporter, from time to time, to > report and publish such decisions of the Court of Chancery, as the Chanciellor of the State shall deem of sufficient importance to be reported and published." In compliance with this direction, the present volume has been prepared with all the diligence and at tention prompted by the respect due to a command emanating Irom such high authority. The plan of works of this nature has been too long established by usage, and sanctioned by general approbation, to permit any attempt at innovation. In extracting from voluminous pleadings and proofs, the facts of each case, it has been the endeavor to bt/ as concise as possible, consistently with that perspicuity so es PREFACE. 5 sential to the easy and right understanding of the judgment o1 the Court. Some apology or explanation may be expected foi the almost entire omission of the arguments of counsel. Though considerations of personal convenience might have been sufficient to prevent that steady and constant attendance on the Court, in- dispensable for that purpose ; yet the omission has not been ovi^ing to a vi^ish to avoid any labor or exertion, however severe and arduous, which might be necessary to a faithful performance of duty. It has been the result of a deliberate judgment, con- firmed by the opinion of persons entitled to very great respect, and which, if necessary, might oe supported by the highest legal authority. It is certainly to be regretted that so much learning and eloquence as are often displayed in the argument of causes, should be, in a great measure, lost; but works of this kind are not adapted to their entire preservation, and they must suffer much mutilation by the process of abridgment. As, in the course of time, also, these judicial annals become, unavoidably voluminous, the convenience of the profession seems to require that every thing not essential to the main object of such histories - should be omitted : and in the present instance, it is hoped that any omission of this sort will be less felt, from the very full discussion and examination of all the points and authorities, by the Court, in pronouncing its decision. These judgments are given exactly as they were delivered in writing, so that all danger of error or misapprehension, in this respect, is entirely avoided. In them 's to be found all that is valuable in these reports, which are w)W' 6 PREFACE. offered to the profession, for whose use they are prinsipolly in tended, with that hope of a favorable reception from its candoi and liberality, which the indulgence so long shown to the author naturally leads him to entertain. To each case is prefixed an abstract of the points decided ; and a copious Index is subjoined to the work, by which every point may, by an easy reference, be found. As soon as the number of cases decided shall be sujBScient for the purpose, a second volume will be prepared and published without delay. New-Yobk, St^embtr 6, 1816. 6 TABLE THE CASES REPORTED *^* The letter v. follows the name of the plaintiSl Alexander, Parkist v 394 Andrews, Matter of 99 Arden v. Arden. 313 , Souverbye v 240 , Sterry v 62. 261 Astor V. Romayne 310 B. Ballou, Murray v 566 Barker v. Elkins 465 Barrow v. Rhinelander 550 Bedell v. Bedell 604 Beekman, Frost v 288 , Stevens v 318 Benedict v. Lynch 370 Belts V. Betts 197 Bissell, Sanford v 383 Blachly, Wiser v 437. 607 Blair, Herrick v 101 Bogart V. Perry 52 Boyd V. Dunlap 478 V. M'Lean 582 Bradwellu. Weeks 206. 352 Brown, Sills v 444 Bruraley v. Panning 501 Brumly v. West Chester Manufac- turing Company 366 Brush, Smith v 459 Bumpus V. Platner. 213 Bunn V. Winthrop 329 Cable, Moore v 385 Caines v. Fisher 8 , Verplanck v 57 Capron, Lansing v 617 Carter v. United Ins. Co 463 Cheesebrough v. Millard 409 Codwise, Gelston v -, 189 Connecticut v. Jackson 13 Cooper, Stevens v.. 425 Croton Turnpike v. Ryder 611 Cummings, Hamilton v 517 D. Day, Haight v 18 Denton v. Dentoii 364. 441 V. Jackson. 526 Dickey, Morrell v 153 Douglass V. Wiggins 435 Dunlap, Boyd v 478 Dunscomb v. Dunscomb 508 E. Eagleson v. Shotwell 536 Earl V. Grim 494 Eastburn v. Kirk 444 Eddy, Lansing ».. 49 Elkins, Barker v^ 465 Ellison V. Mofiat 4f 7 TABLE OF CASES. F. Fanning, Brumley v 501 Fisher, Caines v.. : 8 Franklin v, Robinson 157 Frost V. Beekman 288 G. Garson v. Green 308 Gelston V. Codwise 189 and Schenck v. Hoyt.. . . 543 Genet v. Tallmadge 3. 561 Gill V. Lvon 447 Grant, Parker v..... 434. 630 Gray v. Thompson 82 Green, Garson v 308 j;. Winter 26. 60. 77 Grim, Earl v .'.. 494 H. Haight V. Day 18 Halsey, Nicholson i; , . • 417 Hamilton w. Cummings... 517 Handy, Hine, v 6 Hart, Simpson v 91 Hays, Movan v ". 339 Hazard, Seymour v 1 Herrick v. Blair 101 Hine v. Handy. . .' 6 Hoffman v. Livingston 211 Hoyt, Gelston and Schenck v.. . 543 Huntington, Trustees of, NicoU v. 166 Lansing v. Eddy 4S V. Capron 617 Livingston, Ten Broeck v 357 , Matter of 436 , Hoffman v 211 Long V. Majestre 202. 305 Lowry, Smith and Mead v. 320 Lynch, Benedict v 370 -, Stoughton V 467 Lyon V. Tallmadge 184 , Gill V 447 M. Mann v. Mann's executors 231 Manning v. Manning 527 Majestre, Long v ..... 202. 305 Marks w. Pell 594 Methodist Church v. Jaques. .65. 450 M'Lean, Boyd v 582 Millard, Cheesebrough v. 409 Mix «. Mix 108. 204 Moffat, Ellison v 46 Moore v. Cable 385- Monell, Woods v 502 Morrell v. Dickey 153 —, Woods V 153 Morris v. Mullet 44 Moses «. Murgatrjyd 119. 473 Movan v. Hays 339 MuUett, Morris v 44 Murray, Shotwell v 512 V. Ballou 566 Murgatroyd, Moses v 119. 473 J. N Jackson, C6nnecticut v 13 , Denton v 526 Jaques, Methodist Church v . 65. 450 Nicoll, Matter of 25 V. Trustees of Huntington, 166 Nicholson v. Halsey 417 K. Kane v. Vandenbergh 11 Kingston, Trustees of, v. Tappen 368 Kirk, Eastburn v 444 8 Parisien, Williamson v 389 Parkist v. Alexander 394 Parker v. Grant 434. 630 TABLE OF CASES. S> Parkhurst v Van Courtlandt. . . . 273 Pell, Marks c 594 Perine v. Sn'aine 24 Perry, Bogart v 52 Phillips V. Thompson 131 Platner, Bumpus v 213 Pomeroy v. Pomeroy 606 "owell, Tupper v 439 Tallmadge, Lyon v 184 Tappan, Trustees of Kingston v . 368 Ten Broeck v. Livingston 357 Thompson, Gray v 82 , Phillips V 131 Thurman, Roosevelt v 220 Travis v. Waters 48. 85 Tupper V. Powell 439 R. Radley v. Shaver 200 Rathbun, Rogers v 367 Rhinelander, Barrow v 550 Reigal ». Wood 402 Robinson, Franklin v 157 Roosevelt v. Thurman 220 Rogers v. Rathbun 367 Roiiiayne, Astor v 310 Ryder, Croton Turnpike v 611 Sanford v. Bissel 383 Schieffelin vl Stewart 620 Servant v. Arden 62 Seymour v. Hazard 1 Shaver, Radley v 200 Shotwell V. Murray 512 ' ■■■ , Eagleson, v 536 Sills V. Brown 444 Simpson v. Hart 91 Smith V. Brush 459 and Mead v. Lowry 320 Southwick, Matter of 22 Souverbye v. Arden 240 Stevens v. Beekman 318 ' V. Cooper 425 Sterry v. Arden. 62. 261 Stewart, Schieffelin v 620 Stoughton V. Lynch 467 Swaine, Perine v 24 T. Tabele «. Tabele 45 Tallmadge, Genet v 3. 561 Vol. I. 2 U. Underbill v. Van Courtlandt 500 United Ins. Co!, Carter v 463 Van Buskirk, Woodworth v 432 Vandenbergh, Kane v 11 Van Courtlandt, Underbill v 500 , Parkhurst and others v 273 Van Rensselaer, Wendell v.... 344 Verplanck v. Caines 57 w. Waters, Travis v 48. 85 Weeks, Bradwell v 206. 325 Wendell v. Van Rensselaer. .... 344 , Matter of 600 West Chester Manufacturing So- ciety, Brumly v 366 Wiggins, Douglass v 435 Wilkin V. Wilkin , Ill Williamson v. Parisien 38C V. Williamson; 488 Winter, Green v 26. 60. 77 Winthrop, Bunn v 329 Wiser v. Blachly 437. 607 Wood, Reigal v 402 Woods V. Morrell 103 V. Monell 502 Woodhull, Wooster v 539 Woodworth v. Van Buskirk 432 Wooster v. Woodhull 539 9 In Chancery, June 20, 1816. Ordered, That whenever a defendant shall cause his appearance to bo entered, but shall not cause his answer to be filed in due time, an appli- cation may thereupon be, made to the chancellor (without previous notice) by petition, stating the circumstances, for an order, that the de- fendant answer the plaintiff's bill in such time, after service of a copy of the order for that purpose, as the chancellor shall direct, or, in default thereof, that the bill be taken pro confesso. And, if the defendant shall not answer within the time limited by such order, a rule for taking the bill pro confesso may be entered, as of course, on filing an affidavit of the service of a copy of the said rule. CASES tojnnoEn m scjjc eotttt oe etiattt^tj? STATE OF NEW-YORK. JAMES KENT, Esq., CHANCELLOR. Seymour against Hazard. 1814. A writ of ne exeeU reptMica cannot be granted for a debt due aud Seymodr recoverable at law. It is applied only to equitable demands. And it Hatard seems, that it must not only be an equitable demand, but one iu the nature of a debt actually due. THE bill, which was for a ne exeat, and sworn to March March 3 3, 1814, stated, that the defendant, on the 22d of October, 1813, purchased of the plaintiff a house and lot of ground in Hillsdale, for 3,300 dollars, and for which he gave the plain- tiff seven promissory notes, and a mortgage on the premises tc secure the payment ; that possession of the premises was immediately given to the defendant ; that one of the notes would become due on the 15th of ^j;rj7 next ; that on the 20th of January last, the defendant clandestinely *left the [ * 2 ] premises, having put another person, a poor man, in posses- sion ; that the defendant declared that he was about to re- move out of the state, and did not mean to pay the notes. It was also stated, that the defendant owed the plaintiff more than thirty dollars, and secreted himself to avoid the process r law issued for the recovery of that sum. The plaintiff rayed a writ of ne exeat, that the defendant be compelled to ;ive security, in the sum of 7,000 dollars, not to leave the state. jE. Williams, for the plaintiff. The Chancellor. The writ of ne exeat cannot be granted for a debt due and recoverable at law. As a general 11 2 CASES IN CHANCERY. 1814 rule, it is applicable only to equitable demands, (Dickenh >„^,.-\.-^!^ iiep. 82. 154. 503. 609. Amh.lb. 2 Atk. 210. 10 Vesey, Gk«e* jun. 165.) [.jllLdge. This objection applies equally to the debt of thirty dollar.* as to the demand on the notes; and there is a further ob- jection to granting the writ, as it respects the notes, that none of them appear to be due ; and there must be not on^ an equitable demand, but one in the nature of a debt actu- ally dufi, (Cook V. Ravie, 6 Vesey,jun. 283.) (a) (li) Vide Shaftoe v. Shaftoe, (7 Vesey, jun. 171.) Jones v. Sampson, (jS Vcsfy,jvn. 593, 594.) De Mandevitte v. De Mandeville, (10 Vesey, jun. 6?.) Haffey v. Haffey, (10 Vesey, jun. 261 .) 18 *The Children of E. C. Genet, by him as their guardian, against Tallmadge, administrator, &c. [Followed, post *156.] A father, who has been appointed guardian to his infant children, by the Court, and has given competent security under the act, (sess. 36. c. 75.,) and approved security to account to his children, on their coming of age, is entitled to receive legacies and distributive shares belonging to them. But as father, or guardian by nature merely, he would not be allowed to receive legacies,' &c. belonging to hia children. PETITION for the payment, to the father, as guardian tr his children, of the sum of 17,166 dollars and 76 cents, already paid into Court, by the defendant, as administrator of George Clinton, deceased, for and on account of the distrib- utive share of that estate due the petitioners, who are minors. The father (E. C. Genet) was appointed guardian to his children by this Court, in September, 1812, and gave the se- curity required. Van Vechten, (a,tlorney-general,) for the petition. T, A. Emmet, contra, on behalf of the administrator. The Chancellor. There is one objection to the demand of the petitioner, which must prevail. The statute of sess. 36. c. 75. {I N. R. L. p. 314.) declares that every person entitled to any legacy or distributive share, shall, at the lime of payment or delivery, give bond in double the sum de- manded, with two sufficient sureties, to the executor or ad- ministrator, to refund, &c. if assets should fail for the pay 12 CASES IN CHANCERY. 3 ficnl lit debts, &,c. No such bond is tendered, and the ap- 1614. ^.Ucalion, on that ground, must fail. v^.^'-x.--**-^ But if this objection be removed, (as it probably may,) the Gemkt Dfitilioner, in his character of guardian, is entitled to *the tai-lmadb*. money ; though, in his character of father, or guardian by na- [ * 4 1 ture merely, it seems that he would not be. There has, how- ever, been considerable doubt and discussion in the books, even on this point — how far a legacy due to minors could be safely paid by the executor to the father of the legatees; but the better opinion is, that the payment would be at the risk of the executor. The oldest case I have met with, on this subject, is that of Holloway v. Collins, (1 Ch. Cas. 245.) in which the lord keeper held, that a payment, by the ex- ecutor, of a legacy to the father of an infant legatee, was a good payment, though the father afterwards became insolvent. But, as it appeared that the executor had taken a bond of indemnity, he was held, in that case, to have paid at his own peril. Afterwards, in the case of Strickland v. Hudson, (3 Ch. Rep. 88.) it was said, that the master of the rolls would never allow a child's legacy to be paid to the parent, upon any security whatever ; and yet, in that case, on a bill against the executor, by the father, as next friend and guardian, his children's legacy was decreed to be paid to him, on his giving security to pay over the same when his children came of age. The case of Dagley v. Tolferry (1 P. Wms. 285. 1 Eq. Cas. Abr. 300. pi. 2. Gilbert's Eq. Cas. 103.) has been referred to, in the late cases, as a leading one on this point. It was there decided, by Lord Chancellor Cowper, that the payment, by the executor, of a legacy to the father of a minor was ill, and the executor was decreed to repay the legacy, under circumstances of extreme hardship, and after the father had become bankrupt. The lord chancellor seemed to consider it as a rule of the Court, that the parent was not to receive the children's legacies, though he was, by nature, guardian to his children. But this case was questioned by Lord Hardwicke, in Philips v. Paget, (2 Atk. 80.) and he said that the rule was there laid down too strictly ; that in all cases where executors pay infants' legacies to fathers, they shall be paid over again. In Cooper v. Thornton, *(3 1*51 Bro. 96. 186.) the master of the rolls observed, in allusion to the above cases, that, in early times, the payment to the father of a legacy to the child was held good, but that since Dagley v. Tolferry, the idea of the Court had been otherwise. He said that the rule was laid down very harshly in that case, though he did not mean to interfere with the doctrine ; and he decided the case before him upon its special circum- stances ; but the counsel referred to a decision in the ex- chequer, in 17S6, in the case of Cunningham v. Harris, in 13 5 CASES IN CHANCERY - 1&14. which the rule was declared to be firmly settled, that a legacy >_^— ^^...^ to an infant cannot safely be paid to the father. HiNE In all these cases, the question seems to have been, Ji'heth- Hardv ^^ ^ legacy to a minor could safely be paid to the father, as father, or natural guardian merely, and it does not appear to be any where denied, that a guardian, duly appointed by the competent authority, was authorized to receive legacies and distributive shares belonging to his ward. On this point, I do not see that any doubt can arise. The statute of this state, to virhich I have already referred, contemplates a recov- ery at law, by the guardian, of legacies and distributive shares, on giving approved security to account to the infant on his coming of age. A guardian is, by the general nature of his trijst, entitled to the possession and care of the personal, and of the rents and profits of the real estate of the mfant ; and I do not feel myself at liberty to deny to the guardian, on any terms whatever, the possession of this distributive share. But it appears that the security given by the petitioner, when appointed guardian, is not quite adequate ; and, though his claim may be imposing, when we consider that he unites the characters of natural and of legal guardian, yfet I think the security must be increased to, at least, 10,000 dollars more, before the petition can be granted. Let it therefore be referred to a master, to ascertain and report proper and competent security to the administrator, 1 • 6 J *under the statute, and additional security to the infants, to the amount of, at least, 10,000 dollars, and all further direc- ' tion is, in the mean time, reserved. HiNE against Handy. A creditor is not allowed to make it a condition of a loan, that he shall receive a compensation Jbr his services ia procuring the money: and if the amount of such compensation is included in the security gives for the loan, the Court will, on the debtor's paying into Court the amount reported to be due by a. master, after deducting the sum charged for such services, grant an injuuctiou to stay any proceedings on the mortgage. BILL for an injunction to stay the sale on two mortgages, under a power of sale contained in them. The plaintiff de- posited with the register the amount which he admitted to be due. The bill charged usury, but which was denied in the answer. It appeared, from the answer, that the plaintiff had agreed to pay the defendant for his trouble and expenses, 14 CASES IN CHANCERY «? m going froin Oneida county to Schoharie, to procure the 1314 money loaned ; and that the amount of this compensation >,^-s^— i^^ was liquidated, ana agreed to by the parties, at 15 dollars, Hikk which sum, with 4 dollars and 25 cents for the trouble of the hasdt defendant in going to Vtica to see the writings executed, was included in the first bond and mortgage. The expense of the writings was also included. And in the second bond and mortgage, a similar charge of 1 dollar and 25 cents, for the trouble of the defendant, was included. The Chancellok. The bill charges usury in the bonds and mortgages, and the charge is denied in the answer, and the consideration of the bonds and mortgages fully set forth. *The proof exhibited by the plaintiff is not sufficient to coun- i * ^ 3 tervail the answer. The only question is, whether the Court ought to permit the charge of 19 dollars and 25 cents, included in the first bond, for time and expenses of the defendant in procuring the money, to stand. And the same point arises as to the 1 dol- lar and 25 cents included in the second bond. This Court is always jealous of collateral demands and ad- vantages claimed by a creditor, as a condition of the loan of money. They have a tendency to usury and oppression. On this ground it is, that a mortgagee cannot originally stip- ulate for a collateral advantage, as that the interest, if not paid at the end of the year, shall be converted into principal, or that the mortgagee shall be a receiver of the rents and profits, with a commission. ( Chambers v. Goldwin, 9 Vesey, jun. 271. Scott V. Brest, 2 Term Rep. 238.) The actual expenses of the writings ought to be paid. But to allow the creditor to make it a condition of the loan, that he shall receive a compensation for his services, in procuring the money, and to include that compensation ip. the security, is against sound principle, and tends, most manifestly, to oppression and usury, if it is not usury in itself The amount of the sum here charged is of no moment ; but the principle involved is important. I shall, therefore, decree tliat it be referred to a master to ascertain the amount of the bonds, after deducting 19 dollars and 25 cents from the original sum in the condition of the first bond, and 1 do'- lar and 25 cents from the original sum in the condition of the second bond ; and that, on the plaintiflf's paying into Court sufficient to make up the amount in addition to the sum al- The cm/* of ih.. ready deposited, an injunction issue. defendantwere, * • "^ however, order- ed to be paid by September 3, 1814. Afterwards, on the coming in of the Se bttedVi" master's report, a question was raised as to tne costs ; and the injanc«on°' *his honor Ordered, that the plaintiff pay to the defendant [*81 15 CASES IN CHANCERY. 1814. his costs to be taxed, together with the amoont reported by -^-v— ^-^ the master to be due to the defendant. Caihes V. F aHER. Cornelia Caines (by her next friend, George Caines) against Fisher & M'Lachlan. [See 2 Johns. Ch. 348.1 If a defendant, after an appearance, will not answer, the bill will be taken pro confesso. Where the bill is for relief only, and states suffi- cient ground, it is not necessaiy to prosecute a party to a contempt and sequestration, before taking the bill pro confesso. If, after appearance, no answer is put in, according to the rules of the Court, the defendant will be ordered to file his answer by the first day of the next term, or that, on proof of service of the order, the bill wjll be taken pro corifesso. apn. i5tii, THIS was an application to the Court, by petition,, that me commissions issued to take the answers of the defendants, in England, be returned, in a short time, or that the bill, as against them, be taken pi-o confesso. The bill was filed on the 30th of July, 1808 ; an appear- ance was entered by the two defendants, being aliens resident abroad, on the 23d of November, 1808, by Mulligan, as their solicitor. It was alleged that notice of this appearance was served on the plaintifPs solicitor ; but the knowledge of the fact was denied. On the 15th o( August, 1809, an order was granted, that the defendants appear and answer in nine months, or that the bill be taken pro confesso, and that the order be pub- lished eight weeks in two gazettes. On the 29th of October, 1810, the order was made absolute. On the 6th oi Novem- Der, 1810, on the petition of the solicitor of the defendants, commissions were granted to take the answers of the de- [ * 9 J fendants, one of whom resided in London, and the *other in the island of Bermuda, and the commissions were ordered to be returned without delay. On the 25th of February, 1811, the order, of the 29th of October, 1810, for taking the bill pro confesso, was vacated for irregularity; and on the 26 th of August, 1811, a motion of the plaintiffs, for vacating the two last orders, and for re establishing the order of the 29th of October' 1810, was de- nied, with costs. An appeal from the order was brought in September, 1811, but afterwards withdrawn. 16 CASES IN CHANCERY. 9 On the 14th of March last, an order of this Court was ob- ip-4. tained, requiring the defendants to show cause (20 days after v_^-s^-«i^ personal service of the order on their solicitor) why the order Cainei of the 25th of February, 1811, should not be set aside, and f„„„ the original orders, thereby vacated, be restored. Henry, for the defendants, showed cause. Vaiies, contra. The Chancellor. If the defendant, after appearance, will not answer, but stands out to a contempt, the bill will be takin pro confesso. This is the general rule and practice of thr Court; (1 Harris. Ch. Pr. 274 — 277.) and it is essential te justice, for otherwise the plaintiff never could have the benefit of his suit ; and, as was observed in the case of Haw- kins v. Crook, (2 P. tVms. 556.) and afterwards by Lord Hardmcke, in Davis v. Davis, (2 Atk. 21.) it is consonant to the rules and practice of Courts of law. Lord Hwdwicke was inclined to think, that after an insufficient, as well as after no answer, a bill might be taken pro confesso. There is no doubt of the existence and necessity of the practice, but the English course is to prosecute the party to a con- tempt and sequestration, before the bill is thus to be taken against him by default. I do not, however, perceive any good reason for going this length, before the rule for taking the bill pro confesso is granted. If an answer be essential, *as in bills for discovery, an answer must be compelled by [ * 10 ] the process for contempt ; but there is no need of this when the bill is for relief, and states sufficient ground. All that is wanting is the admission of the facts ; and if the defendant has appeared, and will not answer, he ought to be concluded in the same manner as he is by a neglect to plead to a dec- laration at law. The authority of this Court to prescribe rules for taking bills pro confesso, or to entitle the party to a decree or order by default, is expressly recognized by the statute of 1813, (1 N. R. L. 491.) in the present case the defendants have had very great in- dulgence. The bill was filed, and an appearance entered, in 1808, and to this day the plaintiff has been striving to obtain an answer, or for a decree. Any further delay, without some good cause, cannot be permitted. The Court has competent power to bring this case to a hearing, and from the authorities referred to, and from the reason of the thing, especially as the defendants ^re not within the power of the Court, I think the proper course would be to take the bill -pro confesso. There is no reasonable excuse for this delay. A commission to take tie answer of the defendants was awarded in 1810: Vol. I. 3 17 ja CASES I..V CHANCERY. gj4_ one of them resides in Bermuda, and the other in England ..^-s,,-^ We cannot listen to the suggestion that war intervened Kane twenty months afterwards; and this is the (.nly excuse offered. I shall, therefore, adopt a rule for this case, and which I mean to apply hereafter to other cases of appearance and no answer ; that the defendants file their answer by the first day of the next term, or, on proof of the due service of this rulfj the bill will be taken pro confesso. Rule accordingly. ' Vandeh- BITRQH. .[ * 11 ] *Kane against Vanderburgh and others. An injunction to stay waste will be granted, though there is no siii ' pending, and though no action can be maintained against the tenant at law. April 26th. THE bill, which was for an injunction to stay waste, stated that Abraham Tenbroeck, being seised in fee of the premises devised them in fee to his daughter, Margaret, who devisea them to her sister, Elizabeth Schuyler, for life, remainder to her children living at her death, and in default of such chil- dren, remainder to the children of her brother, Dirck Ten- broeck, in fee. After the death of the two testators, Eliza- beth Schuyler, and her husband, released her interest to the plaintiff. Elizabeth is still living, but without issue ; and the defendants are tenants from year to year. The bill further stated, that actions of ejectment were intended to be brought against the defendantSj who had been served with notices to quit, which would expire on the 1st May next ; and it charged, also, " that the defendants, by themselves, and others hired by them, are daily committing great waste on the premises, by cutting down large quantities of valuable wood and tim- ber, for sale, and carrying the same to market, to the great and irreparable injury of the land, and of the estate of the plaintiff." No answer had yet been put in to the bill. Woodworth, for the defendants, now moved to dissolve the injunction, for want of sufficient matter stated in the bill. Henry, contra 18 CASES IN CHANCERY. 1 1 The Chancellor. The waste is explicitly and sufficiently 1814. charged in the bill to support the injunction. Nor is it es- -_<*-n/'-^w sential to this remedy that there should be an actual lis *pen- Kane dens in a Court of law. There are numerous cases in Chan- Vanueb- cery, as Lord Hardwicke has frequently observed, (Perrot v. bubgh. Perrot, 3 Atk. 94. Robinson v. Litton, 3 Atk. 210. Far- [ 12 ' rant v. Lovell, 3 dtk. 723. Garth v. Cotton, I Ves. 556.) in which the Court has interposed to stay waste, by the tenant, where no action can be maintained against him at law. Thus, where there is lessee for life, remainder for life, re- mainder in fee ; the mesne remainder-man cannot bring waste, nor the remainder-man in fee, but Chancery will inter- pose and stay the waste. So Equity will, in many cases, restrain waste, though the lease contain the clause without impeachment of waste, and which takes away the remedy at law, as where this power is exercised in an unreasonable manner, and against conscience. {Aston V. Aston, 1 Ves. 264. Strathmore v. Bowes, 2 Bro. •iS.) Chancery goes greater lengths than the Courts of law in staying waste. It is a wholesome jurisdiction; to be liberally exercised in the prevention of irreparable injury, and depends on much latitude of discretion in the Court. The tenant for life is here suffering injury to his own inte- rest, and he, by his tenants, is doing great injury to the, in- heritance, which it i^ his duty to prevent. He is bound to stop the mischief, or he responsible himself. To suppose that an ejectment must be actually commenced before the injunc- tion can issue, is certainly an error ; this would be placing the operation of waste beyond the reach of control during the period of the six months' notice. Indeed, the notice to quit may be considered as the commencement of an adverse pro- ceeding at law, and puffcient to bring the case within the spirit of the decision in 1 athrop v. Marsh, (5 Ves. 259.) Motion denied, with costs. 19 13* CASES IN CHANCERY. 1814. coNHECTicuT *rp^^ State OF CONNECTICUT ttgainst Jackson. Jackson. [Followed, 6 Johns. Ch. 314. See 3 Edw. !K; ai&pOBt *628.1 Interest upon interest, of compound interest, is neyer aliewed, unless in special cases; as where there is a settlement of accounts between the. pai-ties after interest Las becotne due, or there has been an agreement for that purpose subsequent to the original contract ; or a master's report, computing the amount of principal and interest, has been confirmed. April 29ih. THE report of the master, to whom it had been referred to compute the amount of principal and interest due on the bond and mortgage executed by the defendant, contained a calculation allowing compound interest, or interest upon in- terest, without any special agreement of the parties, or any settlement of accounts, (a) [ * 14 ] * Sedgwick, for the plaintiff, moved that the report be con firmed. The Chancellor. This allowance of compound interest is inadmissible, and the report must be sent back to the mas ter for correction. There are cases in which interest is con sidered as changed into principal, and permitted to carry (o) The calculation of the master was as follows : Bond, , $25,000 Interest to 5th March, 1806, , 2,262 50 $27,262 50 1806, March 5th, paid 1,220 $26,042 50 Interest to 1 1th March, 1806, is 2 months and 6 days, 286 46 $26,328 96 11th March, 1806, payment, 834 64 $25,494 32 Interest to the ]5th June, 1808, 2 years, 1 month, and 4 days, 3,203 86 $28,698 18 1808, 15th June, payments of May and July 458 96 $28,239 22 Interest to the 12th October, 1808, being 3 months and 27 days, .550 64 $28,789 86 1808, 12th October, payment, 850 $27 939 80 Interest to this day, (£pril 22, 1814,) 5 years, 6 months, and IC days 9,266 61 Amount due, ,. $37,206 47 20 CASES IN CHANCERY. 14 interest; as where a settlement of accounts takes place after 1814 interest has become due, or an agreement is then made that v_^-s^,-«i»_, the interest due shall carry interest, or the principal and in- Comhectico- terest are computed in a master's report, and the same is jacksok confirmed. But, except in some such special cases, interest upon interest is not allowed, and the uniform course of the decisions is against it, as being a hard and oppressive exaction, and tending to usury. Even an original agreement, at the time of the loan or contract, that if interest be not paid at the end of the year, it shall be deemed principal, and carry in- terest, will not be recognized as valid. Such a provision would not amount to usury, so as to render the contract con- nected with it illegal and void at law ; (ie Grange v. Ham- ilton, 4 Term Rep. 613. 2 H. Black. 144.) but this Court, certainly, and, perhaps, a Court of law, would not give effect to such a provision. It will be useful to look into the decisions on this question of compound interest. As early as the case of Davis v. Higford, 4 Car. I. (I Chan. Rep. 15.) the Court laid down the rule that interest upon interest was not allowed ; and that has been the general language of the Court of Chancery down to this day, with but few exceptions. In Smith v. Pemberton, 17 Car. II. (1 Chan. Cases, 67.) an exception was allowed in favor of the assignee of a mortgage, and the amount of the principal and interest, really and bona fide due, and paid by him, was al- lowed to carry interest. The entire sum was considered as principal. But this case was afterwards overruled in Potter v. Hubbell, 24 Car. II., (2 Chan. Rep. 44. 3 Chan. *Rep. [ * 1^ j 43.) for it was there decided, by Lord Chancellor Shaftes- bury, assisted by the Judges Vaughan and Rainsford, that the assignee of a mortgagee ought not to be in a better condition than the mortgagee and no interest was allowed but on the original principal sum. Afterwards, in Maccles- field V. Fitton, 36 Car. II., (1 Vern. 168.) the Lord Keeper expressed his disapprobation of this precedent, and said that the allowance of interest on interest, in the case of an as- signee of the mortgagee, was reasonable. It does not appear, however, that he ventured to overrule it, though, in the sub- sequent case of Gladman v. Henchman, (2 Vern. 135.) such interest was allowed ; and the loose dicta in the ancient books are contradictory on the point. (1 Chan. Cas. 256. I Freeman's Rep. 303. 2 Freeman's Rep. 142.) Perhaps, therefore, it may be considered as a doubtful question, on the ground of these ancient authorities, whether the assignee of a mortgagee, on a bill to redeem, be not entitled to inte- rest on the whole sum which hj paid. Nor are the imper- 21 15 CASES IN CHANCERY 1814. feet cases, in the reign of Charles II., uniform or ccnsistent. •,,^-^^-^ even on the general question whether compound interest can CoMSECTicuT be allowed, for the dicta are both ways. (2 Chan. Rep. 148, Jackso Bradbury v. Bucks. 2 Chan. Cases, 147, Howard \. Har ris. 1 Chan. Cases, 256, 'Chamberlain v. Chamberlain. 2 Freeman's Rep. 142, Anonymous, in favor of, and 2 OA«m. Cases, 153, Ranelagh v. Thornhil, against such interest.) But those cases are too loose, and imperfectly reported, to he deemed of authority ; and the cases since the English revolution, in 1688, have established, beyond controversy, the general rule which has been mentioned, and those cases are so well reported, and have the sanction of such eminent names, as to be entitled to confidence. ' In Chesterfield v. Cromwell, in 1701, (1 Eq. Cos. Abr. 287. B.) Lord Keeper Wright admitted the general rule, that interest could not carry interest, but held that, in some cases, it would be injustice not to regard the interest due as principal ; as where the defendant's mother, with her assent, 1*16 1 *(she being near of age,) stated an account of the interest long in arrears, and the account was fair, and the settlement necessary for the infant's maintenance. In Brown v. Bach- ham, 1720, (1 P. Wms. 652.) Lord Chancellor Parker ques- tioned whether, if the mortgagor ever signed an account, ad- mitting so much due for interest, it would make the interest principal, as it did not show an agreement for that purpose, and he thought a writing would be requisite. And in Waring V. Cunliffe, (1 Fes. jun. 99.) Lord Thurlow said, tliat he found the Court of Chancery in the constant habit of thinking that interest ought not to carry interest, and ihat he must overturn all the proceedings of that Court, if he allowed it. In short, Chancery will not allow compound interest, unless where there is the settlement pf an account between the par- ties after the interest has become due ; or there has been an agreement for that purpose, subsequent to the original con- tract, or where the master's report, computing the sum due for principal a'nd interest, is confirmed ; for it is then in the nature of a judgment. (Mosely, 27. 246. 2 Ves. 471. 1 P- Wms. 652.), The cases and language in the books are clear in acknowledging the rule, that even an agreement made at the time of the original contract, to allow interest upon interest, as it should become due, is not to be supported. {Lord Ossulston v. Lord Yarmouth, 2 Salk. 449. Case of Sir Thomas Meers, cited in Cases Temp. Talbot, 40. and 1 ^tJc. 304. Lord Eldon, in Chambers v. Goldioin, 9 Ves. 271.) This review of the current of decisions shows the existence of the general principle, and the exceptions and limitations by which it is attended. And though creditors will be very 22 CASES IN CHANCERY 10 apt to think, with Lord Thurlow, that there is nothing unjust 1814. in compeUing a debtor, who neglects to pay interest when v_^>~v— ^^ It becomes due, to pay interest upon that interest, yet the Conhecticui wisdom of our law has ordained otherwise. The Roman law jiCKsoK was constant in its condemnation of compound interest. Nullo modo ush.ra usurarum a debitoribus exiganiur, *et [ * 17 veteribus quidem legibus consiitutum fuerat, &c. (^Code 4. 32. 28. Voet. Com. ad P and. lib. 22. tit. 1. pi. 20.) And it appears to me that this provision in the law is not destitute of reason and sound policy. Interest upon interest, promptly and incessantly accruing, would, as a general rule, become harsh and oppressive. Debt would accumulate with a ra- pidity beyond all ordinary calculation and endurance. Common business cannot sustain such overwhelming ac- cumulation. It would tend also to inflame the avarice, and harden the heart of the creditor. Some allowance must be made for the indolence of mankind, and the casualties and delays incident to the best regulated industry ; and the law is reasonable and humane which gives to the debtor's infirmity, or want of precise punctuality, some relief in the same infirmity of the creditor. If the one does not pay his in- terest to the uttermost farthing, at the very moment it falls due, the other will equally fail to demand it with punctuality. He can, however, demand it, and turn it into principal, when he pleases ; and we may safely leave this benefit to rest upon his own vigilance or his own indulgence. Hu- berus says, that neither the law of benevolence, nor of pub- lic utility, will permit interest upon interest. Sed lex chari- tatis et publica utilitatis non patitur, ut mutui debitor, qui in mora solvendi usuram, oh angustiam, rei pecuniaria dtprehen- ditur, nova usura adfligatur, qua re families ad incitas redi- guntur; ideoqui legibus sub pcena infamia prohibetur. Imo nee si consenserit debitor, ut usura commissa in sortem trans- feratur, vel obligationi principali adjiciatur, licita est usura. {Prcelec. Juris. Rom. lib. 22. tit. 1. 6.) The rule for casting interest, when partial payments have Rule far cast- been made, is to apply the payment, in the first place, to the ^g^,^ '"TrtSl discharge of the interest then due. If the payment exceeds pa^^eutJ'^'^K the interest, the surplus goes towards discharging the prin- "*'*''■ cipal, and the subsequent interest is to be computed on the balance of principal remaining due. If the payment be less than the interest, the surplus of interest must not be *taken [ * 18 ] to augment the principal ; but interest continues on the former principal until the period when the payments, taken together, exceed the interest due, and then the surplus is to be applied towards discharging the principal ; and interest is to be computed on the balance, as aforesaid. 23 are !b CASES IN CHANuERY. 1314 Let the master, therefore, take back the repoit, and cor- rect the calculation, (a) IIaight V. Dav. (a) Vide Baphael v. Boehm, (11 Vesey,jun. 93.) In the case of Lewis's ex ecutor V. Bacon's legatee, (3 Hening and Munford's Rep. 89 116.,) where ae interest account was stated, and a balance struck, a(»d carried to the debit of the party in a new account^ and interest charged on the balance, the Supreme Court of Appeals, in Virginia, held it to be compound inteiest, and refused to allow it. Haight and others against Day and otheru. [Reviewed, 4 Paige 853. See 1 Edw. 366; 4 Johns. Ch. 356.] Where an act of the legislature, for the incorporation of a bank, appointed certain conwmsioners^ for the special and sole purpose of receiving subscriptions, and they were directed "to apportion the excess of shares among the several subscribers, as they should judge discreet and proper ;" it seems, that Chancery vcill not interpose, to stay all proceed- ings, under the act, by an injunction, on a bill charging that the com- missionerF. in the exercise of their discretion, acted partially and im- properly, where the charge of bad faith is fully repelled by the an- swer. It seems, that where a statute gives to certain persons a discretion in a par- ticular case, and for a special purpose, a mistake of judgment, in that case, cannot be reviewed and corrected by the Court. - May 2d. THE bill on which an injunction had been granted, filed 21st of May, 1813, recited the act of the legislature, passed the 26th of MarcA, 1813, (sess. 36. ch. 80.) for the incor- poration of the Catskill Bank. The plaintiffs were sub- scribers. All the subscriptions amounted to 36,432 shares. The number of sha.res to be subscribed, exclusive of those to be subscribed by the bank of Hudson, was limited to 6,0( ; • 19 J and the commissioners were to apportion the *excess among the sev«ral subscribers, as they should judge discreet and proper. The bill charged that the commissioners proceeded to apportion the excess, and arbitrarily, and against the con- sent of Isaac Dubois, one of the commissioners, and a plain- tiff, assigned the 6,000 shares prescribed by the act, among themselves, their relations, and favorites, &c. ; and that the apportionment was made corruptly and fraudulently, «.i^ and receive the proceeds, and to pay Pat'i ick Heathy all Greek moneys then due, or that might hereafter become due to him,^ WiN^TER. fro™ William Green, in any manner whatever ; and the bal- ance in trust for Green. Heatley afterwards advanced a sum to pay off the mortgage to the trustees of Governor Liv- ingston. Winter proceeded to foreclose the mortgages on the lands, which were sold, except two lots, by the master, under de- crees for that purpose, subject to prior encumbrances, to the defendant, Joseph Winter, for 7,000 dollars, in trust for Heatley, to whom there were then due above 10,000 dollars. On the 13th of August, 1805, the defendant executed a deed of trust, reciting, among other things, that William Green, being indebted to Patrick Heathy, oi London, had given him a lien on lands purchased of the executors of [ • 29 ] * Scott, and had assigned to the defendant, in trust, to secure Heathy, certain mortgages on land purchased by Green from the representatives of Livingston, &c., and part of which lands had been sold under those mortgages, and pur- chased by the defendant, for the benefit oi Heatley ; and the defendant, therefore, covenanted and agreed with Heathy that he, and his heirs, would stand seised of those lands, in trust, to sell the same, in such small parcels, and for such prices, and on such terms of credit, as should be most bene- ficial to Heatley, or as he should in writing direct ; provided, that it should be lawful for the defendant, with the approba- tion of C. S., N. P. and R. M., or any two of them, or the survivors, if given in writing, to sell so much of the said lands as might be necessary " to reimburse himself of all such mon- eys as he might advance, pay, or expend in execution of the trust ;" or to discharge the notes, &c., which he might give to discharge the prior mortgages of Green : the defend- ant, also, further covenanted, that, " upon payment of such sums of money as might justly be due to him, in relation to the execution of his trust, or that he might advance or be come liable," he would, upon request of Heatley, &c., con vey to Heatley the lands, or the proceeds thereof, after de- ducting as aforesaid ; and that he would also assign to Heat- ley the bonds "and securities taken by him, the defendant, and which might remain " after his said advances and responsibil- ities were secured and satisfied." The deed of trust further provided, in case any dissatisfaction should arise as to an} matter or thing relating to the trust, the same should be submitted to the determination of C. S., N. P. and R. M. whose decision, or that of any two of them, or of the survi- vor of them, should be conclusive; and that, in case the de- fendant should die, or become incapable of executing the 32 CASES IN CHANCERY. 29 trusts, the property should vest in R. P., to the same 1814. uses, who should, out of the lands, or the proceeds thereof, s^^-^^-*,^ pay to the defendant " all his real bona fide charges, advances grees and responsibilities." Wintek. *Hmtley, afterwards, on the 8th oi August, 1806, assigned r * 30 ] over all his interest in the trust, to his sister Mrs. Green, •■ for her life, and to her separate use, independent of her hus- band, and with power to dispose of the same among the chil- dren ; and from that time ISJrs. Green has been the cestuy que t"Ust. It appeared, also, that the defendant executed another dec- . laration of trust, stating that the purchase of lot No. 74, in Cosby's manor, and the Oriskany farm, under a decree, was to be considered as made and held under the above trust. In June, 1809, the plaintiffs filed their bill against the de- fendant, and supplemental and amended bills, in October and December following, stating, among many other things, the facts above mentioned, and charging the defendant with va- rious breaches of trusts, &c. To these bills answers were put in by the defendant. On the 8th of June, 1811, by consent of the parties, an order of reference was made in the cause, to Morris S. Mil- ler, Abraham Varick, jun. and Charles Broadhead, or any two of them, to take an account of the receipts and pay- ments, and responsibiUties of the defendant, concerning the matters in issue, making him all just allowances ; and that, in taking such account, the referees were to proceed on the same principles and evidence as would be proper before a master ; and they were directed to state, specially, all mat- ters of fact. The referees met in August, October and December, 1811, having adjourned twice, at the request of the defendant, to give him an opportunity to produce his accounts, vouchers and evidence. Have completed their report, about the 1st oi March. 1812, the referees caused a copy to be delivered to the counsel of each of the parties, and appointed a day for the parties to appear before them, to hear their report, and make their objections. At the day appointed, on the request of the defendant's counsel, the referees *adjournedto [ * 3 1 J a further day, to give the defendant time to make his objec- tions. At such further day, the counsel for the plaintiffs appeared, and stated various objections to the report ; but no person appeared on the part of the defendant. The report of the referees was signed by them the 21st of April, 1812, and filed in Court. This report, with the documents accompanying it, was very voluminous. Such parts as are material to the under- standing of the decision of the Court, are as follows . Vol. I. 5 33 Green V, Winter. 3! CASES IN CHANCERY. }8i4. That on the 1st of January, 1811, the defendant had re- ceived on the trust estate, viz. : On sales of land f 25,739 73 On sales which failed, 460 00 On bills of exchange, . , 3,277 60 Oi Christopher Roberts,saA oihexs, 165 55 On rents, 2,311 56 On stock, hay, and grain, &c 1,789 00 .$33,743 44 Interest on the above sums, , 10,239 55| $43,982 99 And that the defendant had entitled himself to the foUove- ing credits, viz. : On the real estate, $14,336 80 Paid to Temperance Green, &c 1,255 47 For surveys, 167 75 For taxes, , 177 58 For law charges, 4,195 11 Costs relative to the Gore, 170 11 Costs in suits against Bennet, «fec 520 14 For commissions, 3,516 37 For time and expenses, 1,589 52 For improvements, 6,018 22 For stock, hay, grain, &c 2,885 50 * 32 ] *0n Bayside ferm 1,699 88 $36,532 67 Interest on the above sums, 9,406 56 $45,939 23 The referees rejected, from the account of the defendant, various sums for commissions, brolcerage, interest, compensa- tions for time, travelling expenses, losses, postages, clerk hirt, ' law charges, which, with the interest thereon, amounted to about 19j000 dollars. And they allowed him, under the head of commissions, 10 per cent, on sales of land ; 7 per cent, on moneys received on contracts which failed ; and 2J per cent, on the amount received on bills of exchange. Among the laiv charges allowed by them, was 500 dollars, as a general retainer, besides numerous particular fees, and bills of costs. The charge allowed for costs of suits against Bennet and 34 CASES IN CHANCERY. 32 others, were on judgments, as in case of nonsuit, for not 1814. bringing on the causes to trial, pursuant to notice, at the Ot- -^x-n.-->»iw- sego circuit, in June, 1809 ; the defendant not having attend- Grekst ed the circuit, the causes went off. Winter. Both parties, being dissatisfied with the report, exhibited and filed their exceptions in August, 1812. The exceptions, on the fart of the plaintiffs, were eight in number ; and in substance as follows : 1. That the general retainer of 500 dollars as counsel; the costs in the suits against Bennet and others, and sundry bills of costs, fees, &c., amounting in the whole to 18,668 dollars and 5 cents, ought not to have been allowed. 2. That none of the charges for commissions ought to have been allowed, nor his time and travelling expenses, except for actual disbursements and expenses. 3. That no part of the sum allowed for improvements, building mills, houses, making roads, &c., ought to have been *atlowed, except, perhaps, the costs of necessary re- [ * 33 | pairs, amounting to about 700 dollars. 4. The allowance for stock, hay, grain, &c., ought not to have been made^ as those charges could not concern the trust estate. 5. That the defendant having refused to exhibit, though required to do so, to the referees, an account of the rents, profi^ts, and leases, he ought to have been charged with such rents and profits, as they would have reasonably produced without neglect or wilful default, which would have been seven or eight hundred dollars; and, also, that he ought to be charged with waste and destruction of wood and timber, to the amount of 1 ,000 dollars. 6. That as the defendant had caused the Bayside farm, in Queen's county, which had been purchased for the resi- dence of Mrs. Green and her family, out of the proceeds of the trust estate, and conveyed to P. Heatley, subject to a mortgage of the purchase money, to be sold under the mort- gage, and thereby broke up the establishment of Mrs. Green and her family, which had occasioned a loss of more than 4,000 dollars ; and had purchased a judgment against Wil- liam Green, on which he took out an execution ^ and caused it to be levied on the furniture and other personal property on the farm, and sold, and which he had before purchased a.S trustee for Mrs. Green, and been allowed for, he ought to have been charged with this stock, &c. and the costs, in addition to the loss produced by his causing the sale of the farm, &c. 7th and 8th exceptions not being particularly noticed in the opinion of the chancellor, it is unnecessary to stste them. 35 Hi CASES IN CHANCERY. 1814. The defendant made thirty-seven exceptions to the report , ._i,i-^ ,-,,^ but as most of them related to charges, resting wholly on Green matters of fact and evidence, it is necessary, here, to state rtTiNTER °"^y ^^^ t^° following : ^ 1. Because the referees rejected about 19,000 dollars, in- cluding interest, from the sums charged in the defendant's [ * 34 ] *account, and which were duly proved, and did not state the matters of fact specially relating, thereto. 2. Because the referees have reported concerning a mort gage given by William Green, and his wife, to Isaac Ogden and Philip I. Hoffman, for securing two bonds ; when, at the time of the reference, the defendant had no interest in them, and he so informed the referees, and he made no charge against the trust estate on account of the mortgage or bonds ; but that if it was a proper subject for the referees to report on, they have not credited the amount paid for the mortgage, by about 350 dollars. After a postponement of a hearing of the argument on the exceptions, on the petition of the defendant, they were again set down for argument in January, 1813, when the defend- ant petitioned to have the report referred back to the same referees on the exceptions, and the petition was postponed for the next term. He then appHed for a further postpone- ment of the argument and decision on the petition and ex- ceptions, which being denied, he declined arguing the excep- tions ; and on the 20th of January, 1813, the late chancellor made a decretal order, overruling the defendant's exceptions, and allowing those of the plaintiffs, and confirming the report in other respects. On the 22d of January, an injunction was issued to restrain the appellant from intermeddling with the trust estates. Pursuant to the decretal order of the 20th of January, 1813, an account was taken before a master, before whom the plaintiffs appeared, but the defendant neglected to at- tend ; and the master, on the 8th of February, reported the sum of 20,510 dollars and 1 cent due to the plaintiffs. In £pril, 1813, the defendant gave notice of a petition for a hearing .on his exceptions, which had bepn overruled, and a rehearing on his petition for a re-reference of the re- port to the same referees. In August, 1813, the chancellor ordered a hearing, in the nature of a rehearing of the excep- tions and the petition, on payment of certain costs. • f * 35 ] *0n application of the defendant, the hearing was put off; and in April, 1814, the cause came on to be heard before the present chancelloi, when the exceptions and petitions were all argued at the same time. Pendleton, for the plaintiffs. 36 CASES IN CHANCERY. 3S larison, for the defendan . 1814. The Chancellor. This case is brou^tit to a hearing on exceptions taken on each side, to the report of the referees. The defendant is charged as a trustee, and this trust appears in the declaration of trust, executed by the defendant on the 13th oi August, 1805. The objects of this trust are to be kept steadily in view in the examination of this case. The whole subject matter in controversy depends upon the construction of it, and the principles by which it is governed. I shall first consider the principal exceptions taken on the part of the defendant. [Most of the exceptions relating to charges depending al- together upon fact and evidence, it has been thought unne- cessary to state the observations of his honoron those points.] It is objected, that the defendant, having exhibited an ac- count of payments to 19,000 dollars, the referees rejected about 17,000 dollars of the same. The question is not as to the fact of the payments, but whether they were made on account of the trust. I think they were properly rejected. They were payments to W. Green, and may be just as against him. The trust was created for the benefit of P. Heathy, and was afterwards transferred to Mrs. Green and her children. Payments to W. Green were clearly dehors the trust, and not chargeable upon the trust fund. There is no sufficient evidence that Mrs. Green authorized *these pay- [ * 36 ments to her husband ; and having but a life estate herself, she could not have authorized them, to any extent, beyond the requisite support of herself and children. As far as the referees could determine them to have been advances on the trust account, they allowed them, to the amount of about 2,000 dollars. The Court cannot allow any such misapplication of the trust fund, even to the husband of the cestuy que trust. (Thayer v. Gould^ 1 Atk. 615. 2 Atk. 245.) If the hus- band had applied the payments to any specific trust purpose, the trustee might have been entitled to the benefit of such application ; but we have no evidence of any such appropri- ation. The facts stated in the report are conclusive against the claim of the defendant, in respect to the mortgage given by Green and his wife to Ogden fy Hoffman. It appears that this mortgage was executed in July, 1794, on part of the trust estate, to secure the payment of two bonds ; that the mortgage was not registered until after a conveyance to Sands Sf Lothrop ; that, after judgment was entered on the 3- 36 CASES IN CHANCERY. 1814. bonds, the defendant bought in the same, in January, 1810, >■-*— v.^-.»i_- at a discount, and issued execution against Green. The de- Green fendant refused to answer before the referees whether he l.ad WiKTER '■^^ mortgage as a lien on the trust estate. This purchase ought, justly, and upon all sound principles of equitable policy, to enure to the benefit of the trust, and not to the benefit of the trustee. A trustee is not permitted to use the information he gains as trustee, by purchasmg m for himself. It would be an extremely wrong thing, as the lord chancellor said in Norris v. Le Neve, (3 Atk. 37.) The principle is the same as to buying in the trust estate, or buying securities upon it. A trustee cannot act for his own benefit, in a contract on the subject of the trust. {Morre* V. Paske, 2 Atk. 52. Forbes v. Ross, 2 Bro. 430.) The ob- ject of the rule is to keep trustees within the line of their duty. A Court of Equity watches the conduct of a trustee 1 * 31 ] with jealousy ; and if he compounds debts or mortgages, *or purchases them in at a discount, he shall not be suffered to turn the speculation to his own advantage. (3 P. Wms. 249. n. (a.) 1 Salk. 155.) The objections taken on the part of the plaintiffs to the report, involve much more inoportant considerations than those I have been examining ; because they principally refer to the general rights and duties of a trustee. 1st. The plaintiffs object to the allowance of a number ol charges, for costs, accrued to, or paid by the defendant in execution of the trust, amounting, in the whole, to 1,863 dollars and 5 cents. I think they may all be deemed just charges and allowances, except the first charge of 500 dol- lars, for " a counsel fee as a general retainer." This is clearly inadmissible. The trust was a voluntary undertaking for the benefit of Heathy, and voluntarily continued for the ben- efit of his sister and children. The trustee is entitled to a liberal indemnity for his expenses and responsibilities incurred in the due and faithful execution of the trust ; but he cannot demand compensation beyond what may be founded on the positive agreement of the party. The declaration of trust contains no stipulation, or provision, for such compensation. It is cautiously worded throughout, and speaks only of al- lowances for all his " advances and responsibilities." The trustee cannot, therefore, charge any thing more than what is understood, in the language of this Court, by just allow- ances I am obliged, therefore, not only to reject this general retainer, but also to admit the force of the 2d Exception to the commissions of 10^ and 7, and 2^ per, cent, allowed in the report. The 4 dollars a day, for his tirne and expenses, may be allowed on the ground of a fair in- aemnity ; but I cannot go further, without shaking the hes.\ 38 CASiLS IN CHANCERY. 37 settled principles, in respect to the nature and character of 1814 the duties of a trustee. Nothing can be stronger or more -*^v—*^ explicit, than the uniform language* of the English Court of Greeh Chancery upon this point, or, if I were even free *frora the vvinter. weight of authority, I should hesitate greatly before I under- f * 38 ] took to question the policy or-wisdorn of the rule. We find the principle advanced as early as the time of Lord Nottingham, in the case of How v. Godfrey, 30 Gar. II. {Rep. temp. Finch, 361.) in which the defendants, as guardians, "demanded 201. for their care and pains in man- aging the trust." The chancellor decreed, that they should have their costs and charges, and all just allowances, but not any thing for their care or pains. And in the next year, in the case of Hethersell v. Hales, (2 Ch. Rep. 83.) we find the same distinguished lord chancellor making a liberal al- lowance to a trustee, under the head of " charges and ex- penses in managing the trust;" thereby not only settling the general rule, but also defining the limitations by which it was to be governed. The same doctrine has been con- tinued through all the books, down to this day, whatever might be the nature of the trust, or the relative character of the trustee. (Palmer v. Jones, 1 Vern. 144. Bonithon v. Hockmore, 1 Vern. 316. Scatter good v. Harrison, Mosely, 128. Read v. Snell, 2 ^tlc. 643. Godfrey v. Watson, 3 Aik. 517. In the Matter of Annesley, a lunatic, Amh. 78.) In one of the latest cases, Fearns v. Youngs (10 Ves. 184.) Lord Eldon admits, that where a trustee has fairly expended money by reasonably taking opinions, and procuring di- rections necessary to the due execution of the trust, he was entitled to such charges under the head of just allowances. In Robinson v. Pett, (3 P. Wmi. 249.) Lord Talbot declares the reasons of the rule refusing an allowance to a trustee for his care and trouble, viz. that, under that pretext, the trust estate might be loaded and rendered of little value; and, also, because of the great difficulty there might be in settling and adjusting the quantum of such allowance, as one man's time might be more valuable than that of another, and that the rule was no hardship upon the trustee, since the accep- tance of the trust was of his own choice. In another *case, [ *39] Ayliffe V. Murray, (2 Atk. 58.) Lord Hardwicke observed that Chancery looked upon trusts as honorary, and a burder upon the honor and conscience of the trustee, and not under- taken upon mercenary motives, though a fair and open bar- gain with the cestuy que trust, for compensation, would be admissible. 3. The same principle supports the exception to the al- lowance of 8,482 dollars 69 cents, including interest, for expenditures for improvements of tV.e trust estate, as by 39 39 CASES IN CHANCERY. 1814. building houses and mills, clearing land, making roads, &,n _^~^,-,|^^ These expenses were not within the purview of the trust. Green which went only to authorize the defendant to sell the land, ^- to raise money to pay oflf the encumbrances, and to restore the residue of the estate. The referees report that the im- provements were made in good faith, but that, in general, they were of no real or substantial value to the trust property These charges appear to be still more exceptionable than those under the head of compensation ; and to tolerate such wide deviations from the nature and terms of the trust would be creating a most dangerous precedent. It would be placing trust property in the greatest jeopardy, and, perhaps, encum- ; bering it with burthens too grievous to be borne. I cannot, therefore, admit of any allowances under this head, but such as may justly be considered as reasonable reparations or re- pairs, and these do not appear, from the report, to exceed much, if any, the sum of 700 dollars. JVor is this point left without a clear and explicit sanction in the decisions of the Court of Chancery. It is the established doctrine, that a trustee can only be allowed for necessary expenditures (^Fountttine v. Pellet, 1 , Ves. jun. 337.) and the cestuy que trust has always his option to take, or refuse, the benefit or loss of the unauthorized act of his trustee. (^Harrison v. Harrison, 2 Alk. 120. 2 Bro. 656—8.) The case of Bos- tocJc V. Blakeney, (2 Bro. 653.) is quite analogous to the present. That was a trust to purchase land, and the land was purchased, and money expended in repairs and improve- I • 40 ] ments ; *and though the improvements were substantial and lasting, the chancellor would not admit of such a misapplica- tion of the funds of the trust. It must be, and always has been, the anxious wish of a Court of Chancery, to save a trustee from harm while acting in good faith ; but a misapph- eation of the trust property, by going out of the trust, can never be permitted to injure the cestuy que trust, without his assent. (2 P. Wms. 453. 3 AlTc. 441.) 4. The next exception on the part of the plaintiffs, is equally well taken. ' The report slates that the defendant paid, on account of the trust estate, for stock, hay, farming utensils, &c., 3,729 dollars 37 cents, including interest and that, on the purchase and resale of stock for the farir. such as cattle, hogs, &c., he lost 1,300 dollars, and f(/r which the report states the defendant was entitled to a credit. It appears further, that while the reference was pending, the defendant sold stock, farming utensils, &c., and refused to render an account, and that when examined before the ref- erees, he said it was a question whether this agricultural stock was trust property, and that, if he was allowed the cost ot it, he would credit the sales, and declined further to an 40 CASES IN CHANCERY. 40 swer about the sales. The whole of this account, both debtor 1814. and creditor, ought to be struck out of the report, and not to \_^-s^-^,^ be taken into the computation of the balance due. It was a Geeek Imsiness altogether out of the trust; as much so as if the wintkr defendant had engaged in commercial or manufacturing busi- ness on the estate. 5. Another objection by the plaintiffs is, that the defend- ant ought to have been charged with such rents as the report states that the trust estate would reasonably have produced ; inasmuch as the defendant refused to exhibit to the referees, though repeatedly called on for the purpose, a statement of leases, or other contracts, for renting the farms belonging to the trust estate. This appears to me to be perfectly just, under the circumstances of this refusal, and the defendant ought to be charged with such reasonable *rents, from and [ * 41 I after his assumption of the trust, in those cases in which the report states what would be a reasonable rent, and except in the special cases already mentioned. 6. The last objection relates to what is termed the Bay- side farm, on Long Island. It appears that the defendant agreed to purchase this farm for Mrs. Green, and to pay for the same out of the proceeds of the trust estate ; that he purchased it in March, 1806, and gave his bond and mort- gage ; that when the bonds fell due, the defendant refused to pay for the same, and caused the mortgage to be fore- closed, and also a suit in ejectment to be instituted, by means of which Mrs. Green was obliged to abandon the farm. The referees report, that the defendant had paid, on account of this farm, 6,751 dollars 44 cents, and had re- ceived, on the sale of it, 4,315 dollars 78 cents, and they charge the costs of the suits, and the loss on the sale of the farm, to the trust estate. The question is, on whom this heavy loss ought to fall ; on the defendant, or on the cestuy que trust ? Here was a trust voluntarily undertaken by the defendant, and he refused, eventually, to pay for the farm, according to his original undertaking, out of the trust estate, when he either had funds in hand to pay, or the means in his power to raise them. It appears to be an inequitable proceeding on the part of the defendant, and no just reason is given for the non-fulfilment of the trust. The farm had, in 1807, been conveyed to Heatley, subject to the mortgage. The conduct of the defendant, in suffering the farm to be taken for the debt, and in buying a judgment against William Green, and seizing, under it, the personal estate in posses sion of Mrs. Green, on that farm, (which facts are specially set forth in the report,) has strongly the appearance of a de- ' sign to coerce tht cestuy que trust to some undue accommo- dation. I am, accordingly, of opinion, that this exception. Vol. I. 6 41 4J CASES IN CHANCERY. 1814. ought to be allowed, so that the loss on the farm, and iht s„^,-^,,-^_ costs of the suits, may not be chargeable to the trust estate. Gkek;^ *I have thus finished an examination of the numerous ex- rt'iNTEK ceptions, taken on the one side and on the other, to the re- r * 40 ] port of the referees, and if my conclusions may seem rigor- ous towards the defendant, it is because I found myself ne- cessarily led to that result, by the facts in the case, and the known and settled principles of equity, in respect to the re- sponsibility of a trustee. Those principles will appear all important to the community when we consider the necessity of strict guards upon the powers of trustees, to whom are usually confided the interests of those who are incompetent ' to help themselves, and who are thrown, destitute and feeble, upon the protection of others. Individual hardship had bet- ter be endured in a particular case, by a strict adherence to rule, than to tolerate a relaxation, which might be produc- tive of great public inconvenience. I shall, therefore, direct the report of the referee? to be referred to a master, to state an account upon the basis of that report, but subject to such variations and corrections as I have herein suggested. The following order was thereupon entered : " That the third exception of the defendant be allowed, so far only as respects the sum of three hundred dollars, therein stated by the defendant, and in the report, to have been .paid by him to James Battles, to rescind a contract therein men- tioned, for the purchase, by him, of certain lands from the defendant, as trustee for the plaintiffs, or some of them, whereby the lands became again vested in the said Winter, as trustee, in the same manner as other parts of the said trust estates, and that the said Josejph Winter be allowed the said sum of three hundred dollars, with interest thereon ; and that all the other exceptions of the defendant^ to the re- port of the said referees, be overruled. " And in relation to the exceptions taken by the plaintiffs to the report, it is further ordered, the first of the said ex- ^ * 43 ] ceptions be allowed, as far as respects the sum of *five hun- dred dollars, and the interest thereof, allowed in the report, to the trustee, as a retaining fee, which sum is not to be allowed to him on the account herein directed to be taken ; and that the first exception, so far as it relates to all other costs and charges therein objected to, be disallowed ; and that the costs and charges (except the said five hundred dollars, and interest) be allowed to the trustee, on taldng the said amount ; that all the other exceptions taken by the plaintiffs to the report be allowed, except as follows, viz. : "1st. That in relation to the rents and profits chargeable against the defendrnt, as trustee of the estates mentioned in 42 CASES IN CHANCERY. « the report, he shall, for the rents of the Oriskany farm there -1314. in mentioned, for the years 1809, 1810 and 1811, be charged ^^^v..-*^ only with the sums stated in his accounts, filed with the said Gkeen report, to have been received by him for those years ; and that, wJteb m relati )n to the rents and profits of the same farm for other years, and of the remaining parts of the trust estates, the de- fendant shall account and be charged with what might rea- sonably have been obtained for the same, from the time he took charge of the said trust estates to the date of the report, which account is to be taken according to the facts therein stated, iind interest allowed on them from the respective pe- riods when the same would have been receivable, in the manner interest is calculated in the report on the debits and credits therein mentioned. "2dly. .That the defendant shall be allowed the sum of one thousand seven hundred and seventy dollars, and interest stated in the report ; to be allowed the said trustee for his time arid expenses in and about the execution of the trust, and no more, " And it is further ordered and decreed, that it be referred to Mr. Hansen, one of the masters of this Court, to, take and state an account of the amount due to the plaintiffs from the defendant, Joseph Winter; and that, in taking such ac- count, the master proceed according to the report of the *referees, and the facts therein contained, subject to the va- [ * 44 riations and alterations herein directed, in relation to the ex- ceptions and parts of exceptions herein before mentioned, as allowed or varied ; in relation to which, he is to be gov- erned by the said exceptions, and the said alterations and variations thereof, as part of this order for taking the said account. " And it is further ordered, that the costs upon the said exceptions be allowed to the prevailing party, where they have been allowed, and to the opposite party, where they have been disallowed, to be taxed by the master ; and that the sum taxed in favor of the pe.;ty having the smallest sum, be set off against the amount taxed in favor of the other party, and that the balance be paid." 43 44 CASES IN CHANCERY 1814. Tabele ri.BF.Lz. Morris and another against Mullkti and others It is too late, after two terms have intei-vened, and the decree is signed, to move for a retaxation of costs. [Followed, 3 Johns. Cli. 117.] May 18th. PENDLETON, for the defendants, moved for a retaxa- tion of the costs in this cause. The notice for taxation was of the 17th of August last ; and was received on the morning of that day, too late to attend before the master. No application for retaxation was made at the subsequent terms, in August and October ; and the de- cree in the cause was made up and signed in October last. Ris^gs, contra. Per Curiam. The application comes too late, and must be denied. Motion denied. * 45 ] *Tabele against Tabele and others. pjistingnished, 5 Johns. Ch. 458.] Where, on a bill of foreclosure, the wridow of the mortgagor was made a party, and answered, and submitted to the decree of the Court, she was held entitled to the use of one third of the surplus proceeds of the sale of the mortgaged premises, remaining in Court, after satisfying the mortgage debt, as her equitable dower ; and to her costs, to be paid out of the other two thirds. And the one third was -ordered to be put out at interest, by the aSsistant register, for her benefit. nay i8ih. WILLIAM TABELE died in July, 1808, intestate, and indebted on a promissory note to the plaintiff; and John Tabele, his partner, died in 1810, intestate and insolvent; and the firm of John and William Tabele was indebted to the plaintiff. The widow of William Tabele took out letters of admin- istration on his estate, and has fully administered the assets. In 1806, William Tabele, and his wife, mortgaged his separate property to Thomas Gardner, for a debt, which mortgage has been foreclosed in this Court ; and the widow and heirs, who were made parties to the bill, appeared, an- 44 CASES IN CHANCERY. 45 swerel, and submitted to the decree. The mortgaged prem- 1814. ises were sold under the decree,, and the debt paid ; and the v_^-n.,-»w> costs of the widow, in her answer to the bill of foreclosure, Tabele were paid out of surplus proceeds of the sale. Tabelk. The plaintiff now applied to the Court for payment of his debt out of the surplus moneys, after first satisfying the mortgage. The widow claimed her dower in the surplus, but, after deducting her third, the remaining two thirds would not be sufficient to pay the plaintifTs demand, if the costs received by the widow were not charged upon her third. *Riggs, for the plaintiff, contended, 0iat the costs of the [ * 46 J widow's answer ought to be charged on her third of the surplus proceeds of the sale. Boyd, contra. The Chancellor. The widow is entitled to the use of one third as the surplus moneys, afler satisfying the mortgage debt, as her equitable dower ; the same arising out of the real estate, in which she would have been entitled to her dower, at law, subject to the mortgage. As she was necessarily made a party, and by her answer, submitted to the Court, she was entitled to her costs out of the two thirds of the surplus moneys then in Court, with- out prejudice to her claim of dower out of the gross amount of the surplus. The costs are not to be charged on her dower fund. The one third of the surplus must be put out at interest by the assistant register, and the interest f>aid to the widow. 45 46 CASES IN CHANCERY. 1814. El.LISOK V. MorATT. Ellison, survivor, &c., against Moffatt and others, representatives of Moffat. [Applied, 4 Johns. Ch. 217,] A bill filed in 1809, for an account as to' transactions before and at the commencement of the American-wax, was dismissed on the ground of the staleness of the demand ; 26 yeai-s 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. Mai) isth. THE plaintifT filed a bill, in 1809, against the defendants, as the executors, heirs, and devisees of Thomas Moffat, de- ceased, for an account, stating an agreement, under seal, dated in April, 1769, between John and William Ellison I * 47 1 *and the testator, by which they agreed to furnish the testa- tor with a store of goods, which he was to sell on certain terms ; and the agreement was to continue for three years. In April, 1772, the agreement was renewed for six years and it was unexpired when the American revolutionary wai broke out, in 1775, and interrupted ihe business. The par- ties lived in the county of Orange. J. &f W. Ellison took the goods remaining unsold, and the books. The object in taking the books was said to be, to prevent the debts being paid in continental money. They returned them to Moffat, at the end of the war, and after some of the debts had been collected by J. ^ W. Ellison. Moffatt died in 1805, and in October, 1808, the books were rede;livered to the plain- tiffs, by the executors. By the books, it appeared that the testator had received debts as late as in the year 1791. Tlie bill charged that the executors had offered to pay 2,500 dol- ars, which was refused. The answer stated, that the executors were unable to state an account, having no books nor vouchers for that purpose ; that they were ready to deliver over the bonds, notes, &c., which were in their hands, when required ; that the execu- tors did make such an offer of payment in satisfa.ction of the plaintiff's demand ; but that it was made under a belief that nothing was due, and with a view to purchase peace, and to avoid the expense of litigation with rich men, which the es- tate of the testator was unable to bear ; and they insisted on the staleness of the demand, and that it was barred by Ittpse of time. Risgs, for the defendants, moved to dismiss the bill, on the ground of the staleness of the demand. He cited 2 Vesey, jun. 1 1 . Ray v. Bogart, 2 Johns, Cas. 432. 46 CASES IN CHANCERY. i' S. Jones, jun., contra, cited Button's Rep. 109. 2 Vesey, 1814. 483. s'^*-' Tratis *The Chancellok. The parties lived in the same county, waters. and, without accounting for the delay, the plaintiff suffered r * ^g a period of 26 years to elapse, from the termination of the American war, to the time of filing his bill. The offer made by the executors being for peace, and without any recogni- tion of the justness of the demand, and being rejected by the plaintiff, cannot affect the question. It would not be sound discretion to overhale accounts, in favor of a party who has slept on his rights for such a length of time ; especially, against the representatives of the other party, who have no knowledge of the original transactions. It is against the principles of.public policy, to require an ac- count, after the plaintiff has been guilty of so great laches. The bill must be dismissed on the ground of the staleness cf tie demand; but without costs. Travis and others against Waters. [Affirmed, 18 Johns. BOO.] A rehearmg rests in the discretion of the Court, and is not granted on a decree for costs only, unless under special circumstances. RIGGS, for the defendant, moved for a rehearing on a my .8ta, oecree of last October, for costs, on the usual certificate of counsel, and on an affidavit stating the grounds of the alleged grievance and error ; that costs of an action of ejectment, at law, had been allowed, though not asked for on the argu- ment of the cause ; and that costs which had accrued before the death of the testator, had also been allowed, though his personal representatives were not before the Court in their representative character. *Henry, contra, contended that a rehearing rested in the [ * 49 ] discretion of the Court, and was not of course ; (3 P. Wms. 8. Amb. 91. 1 Har. Ch. Pr. 647—652.) and that it is not granted on a decree for costs merely. (Dickens's Rep. 594. 1 Bra. ( C. 141. n.) The Chancellor. The general rule is as stated by the counsel for the plaintiffs ; but a rehearing is usually granted, 4" 19 CASES IN CHANCERY. 1814. if there be colorable ground for the application. Even in >.^'~v--"»— - cases of decrees for costs only, there are exceptions to tr.a Lansing general rule ; and it is so admitted in one of the cases re* KfiDY. ferred to. The facts alleged in the petition for a rehearing, in this case, are such as to render it proper and expedient that the case should be reconsidered. Motion granted. Lansing against J. and T. Eddy. [Followed, 2 Johns. Ch. S32.2 An injunction will not be granted tt Stay a sale under an execution on the ground that the judgment has been fully paid and satisfied ; Sot the party has a prompt and adequate remedy at law. Nor will it be granted on the charge of usury, and the party seeks a dis- covery of the usury, and a ruturn of the excess beyond the lawful in - terest ; for the usury would have been a good defence at law ; and iic reason was given why the defendant did not seek the discovery while the suit at law was pending. Chancery will not relieve against a judgment at law, unless the defend- ant was ig(iorant of the fact in question pending the suit, or it could not be received as a defence. June 2d THE bill, which was for an injunction, stated, that the plaintiff, as security for Jacob I. Vanderheyden, and with him, gave a promissory note for 511 dollars and 70 cents, on the 14th of March, 1811, to John Eddy. That judgment ( * 50 ] *was recovered on the note, in the Supreme Court, against both the makers, in October term, 1811, on which a Ji. fa was issued immediately thereafter. Vanderheyden died in- solvent, the 6th of April, 1813, and the property was ad- vertised for sale, under the execution, on the 6th of June ir)stant. On the 21st of July, 1812, the plaintiff paid the sheriff, on the^. /«., one hundred and fifty dollars, and on the 7th of March, 1814, he paid to T. Eddy, the assignee of the judgment, 74 dollars ; on the 16th of March, 100 dollars ; and on the 25th of March, 1814, 400 dollars, amounting to 724 dollars, on the judgment. The bill further stated, that the above-mentioned note was given to take up a former note, between the same parties, which former note was also given to take up another note ; and that the original note was for a loan of money to Van- derheyden, on which John Eddy had exacted usurious inter 48 Eddt. CASES [N CHANCERY. 50 est. That before, or after the commencement of the suit in 1814. the Supreme Court, John Eddy assigned the note, or judg^ >_<*~\/— *i_-- ment, to his brother, Tisdale Eddy ; and that, in the begin- Lansiko ning of the year 1812, T. Eddy exacted, and received of the plaintiff, a note for fifty dollars, for forbearance and delay of execution, and which note he still holds. The plaintiff prayed for a discovery, as to all the above charges, and for an injunction to stay the sale under th>» execution. » Foote, for the plaintiff. The Chancellor. The injunction can only be granted upon one of these two grounds : ] . That the plaintiff has already fully, paid and satisfied the execution ; 2. That he seeks for a discovery of usury in the debt, and to obtain a return of the excess beyond the principal sum loaned, to- gether with the lawful interest. 1. If the execution has been paid, the sale can be stopped *by a judge's order, and there is no need of the in- * 51 J terference of this Court. The remedy at law is prompt and adequate. 2. Nor does there appear sufficient cause for allowing the writ on the other ground. The first impression is, that the plaintiff comes too late even for the aid of this Court. He was sued, at law, nearly three years ago, and it does not ap- pear but that he was as well acquainted with the transaction then as he is now ; and why was not the discovery sought for pending the suit at law ? The usury would have been a good defence to the aption. The general rule is, that this Court will not relieve against a judgment at law, on the ground of its being contrary to equity, unless the defendant below was ignorant of the fact in question, pending the suit, or it could not have been received as a defence. If a party will suffer judgment to pass against him by neglect, he can- not have relief here for a matter which he might have availed himself of at law. (Lee and Uxor v. Boles, 2 Ch. Cas. 95. Williams v. Lee, 3 AiTc. 223. Scott v. Scott, Mich. 1769,' cited in 1 Hall's Law Journal, 305. Le Guen v. Governeur and Kemble, 1 Johns. Cas. 436.) Lord Hardwicke says, it must appear that the defendant was ignorant, at the time of the trial, of the fact which renders the verdict at law contra- ry to equity ; and even then, Chancery will not relieve where the defendant submits to try it at law first, when he might by a bill of discovery have come at the fact, by the plaintiff's answer, before trial at law. There may be cases, perhaps, in which this general rule would be subject to some modification, but, generally, where Vol. I. 7 49 51 CASES IN CHANCERY. 1814 ^ party has neglected his means of defence at law, Equitj ,_^,^-„„,-^_x will not interfere ; and the present case has certainly sa BoGART strong an appearance of neglect, that I do not feel warrant p "■ ed to allow the injunction. ^""^ Motion denied *52] *BoGART against Ferry and others. [Affirmed, 17 Johns. 351. Followed, 4 Paige 581, 588, 619.] The 4th section of the statute of Uses, (sess. 10. ch. 37. 1 M". R. L. 72 j rendering lands liable to execution against the cestuy que use, or cestui que trust, applies only to those fraudulent and covenous trusts, in whioh the cestuy que «»e, or trust, has the whole real beneficial interest in the land, and llie trustee the mere naked and formal legal title. A judgment, at law, is not a lien on a mere equitable interest in land; and the execution, under it, will not pass an interest \yhi<;h a Court of law cannot protect and enforce. A., being seised of land, agreed to sell and convey the same to B., for a certain sum, part of which was to be paid down, and the residue in three annual instalments : and A. was to execute a deed to B., on his paying the second instalment, and securing the residue by mortgage. B. paid the part down, and entered into possession, but neglected to pay the instalments ; and more than two years after they had become due, and payable, B. assigned the contract to S., who took possession of the land, and made valuable improvements thereon ; and S., without performing the contract with A.j assigned it, and all his interest, to P., with knowledge, however, of a judgment existing against S., before • such assignment. It was held, that the mere right, in equity, of S., as assignee of B., against A., on the contract for the sale of the land, was not the subject of lien, or judgment and execution. jur^ 15th. JOHN ATKINSON, being seised in fee of lot No. 98, in Junius, on the 4th of June, 1804, by a written contract, agreed to sell to T^ewis Birdsall, parts of the lot, or 296 acres, at 4 dollars per acre ; 400 dollars of the purchase money to be paid down, and the residue in three annual payments ; and a deed to be executed and delivered, on payment of the second instalment, with a mortgage for the residue of the purchase money. Birdsall paid down the 400 dollars, and, on the 20th of September, 1804, paid Atkinson the further sum of 172 dollars. Birdsall went into immediate posses- sipn of the land, under the contract ; and soon after con- tracted to sell 200 acres to Asa Smith, (one of the defend- ants,) who agreed to pay the balance due on the contract • 53 J to Atkinson, and took possession of the land *so purchased, and erected a dwelhng-house thereon, and made large ard valuable improvements. Richard Harison recovered a judg- 50 CASES IN CHANCERY. 53 meat against Smith, in the Supreme Court, for 450 dollars, iei4. of debt, which was docketed the 19th of October, 1808. In <^^-v— *.^ A-pril, May or June, 1809, Smith contracted to sell the 200 Bogart acres to Perry, for above 2,000 dollars, who agreed to pay off per„y the balance due to Atkinson, and to pay the residue to Smith, when the judgment of Harison, and any other judg- ments binding the premises, were paid off; and gave his note payable accordingly. The bill charged, that Perry, when he purchased of Smith, had full knowledge of Harison's judgment. Soon after this purchase, and before the 28th of May, 1809, Birdsall sold to Perry his contract with Atkinson, and Perry imme- diately surrendered it up to Atkinson, paid him 1,050 dol- lars, the balance due, and took a conveyance, in fee, from Atkinson, for the 296 acres ; the legal title having remained m Atkinson until the time of this conveyance. On the 25th of October, 1808, a test. fi. fa. was issued, on the judgment of Harison, against the property of Smith, by virtue of which, Birdsall, who was then sheriff of the county of Seneca, sold the 200 acres at public auction, to the plaintiff, Bogart, who was the highest bidder, and exe- cuted a deed to him, under the judgment and execution, dated August 1, 1809. On the 18th of September, 1809', the plaintiff tendered to Perry 1,063 dollars and 40 cents, in full of the money paid to Atkinson, and demanded a deed. On the 9th of May, 1811, Perry sold to John Van Tuyl, (one of the defendants,) the whole 300 acres for 5,000 dol- lars, who paid down 1,000 dollars, the residue being payable in future instalments. The bill alleged, that Van Tuyl purchased with full knowledge of all the preceding facts. On the 26th of July, 1811, the plaintiff tendered to Van Tuyl 1,215 dollars, and demanded a deed for the 200 acres, which was refused. *The bill was taken, jpro confesso, against Smith. [ * '''4 3 Van Tuyl, in his answer, denied all knowledge of the facts charged in the plaintiff's bill. Perry, m his answer, admitted most of the facts stated in the bill. He admitted that Smith, on or about the 1st of April, 1809, sold to him the 200 acres, &c., and that he agreed to pay the balance to Atkinson : that he paid 65 dollars down to Smith, and, afterwards, on the 24th of May, gave Smith his note, but he denied that it was intended to provide against Harison's judgment. That soon after he purchased of Smith, he purchased the contract of Birdsall, and gave it up to Atkinson, though, when he purchased of Smith and Birdsall, the contract with Atkinson had become forfeited for non-paj'ment. The contract was surrendered 51 M CASES IN CHANCEKY. 1814. to Jlikmson, the 28th of May, 1809, Apd in July following, v,„*-«v'-^ he received a deed, and paid the baJance due to A. He BoGAKT admitted the sale on fi. fa. the 1st of August, 1809, to P£BRY tl^^ plaintiff, for 30 dollars, and the tender made to him the 18th of September following ; but he denied any knowledge of Hanson's juflgment, until after he made lus contract with Smith, and had entered into possession of the 200 acres, and had paid Smith 65 dollars. Birdsall deposed, that in 1808 and 1809, he was sheriff of the county, and had frequent conversations, when sheriff, with Perry, respecting the fi. /«., in favor of Harispn, against Smith. That such conversation was " a considerable time previous to the purchase made by Perry, of the 200 acres of Smith, and that Perry often conversed with him, before the purchase, as to the propriety of making it." Another witness stated, that }ie heard Perry say, in the early part of May, 1909, after he had taken possession of the land, that there were judgments against Smith, which he was afraid would give trouble. The note given by Perry to Smith, which was exhibited, dated the 24th of May, 1809, was for 885 dollars, to be paid " when all judgments I * 55 1 ^against said lot, No. 9P, in Junius, are settled, respecting the said 200 acres," d^c. E. Williams, for the plaintiff. Heriry, costra. The Chancelloe. If a question of notipe was material in this case, I should have no hesitation in deciding that Perry, when he took an assignment of Smith's interest, was chargeable, not only with cpnstructive notice of Harison'i judgment, by means of the docket of the judgment, but with notice in fact. It does not appear to me, however, that Per- ry is to be affected by the notipe, because Smith had no interest in the land on which the judgment could attach, or the execution operate. When Perry purchased, neither Birdsall, nor his assignee, had performed the contract with MMnson. There had been not only a default in paying the instalments, but nearly two years hafl elapsed after the last instalment had been due ; no reason appears in the case for this gross default ; arid if Atkinson had insisted on the failure, it is not certain that Birdsall, or his assignee, would have been entitled to a spepific performance of the contract. But the mere right in equity, tha^; Smith, as assignee of Bird- sail, might have had against Atkinson, under the contract, was not the subject of the judgment and execiition, as " real estate." No case has gone that length, and though an equity 52 CASES IN CHANCERY. 53 of redemption has been held Uable to a sale ori a fi. fa., ( Wa- 1314. ters V. Steioart, 1 Gaines's Cases in Error, 47.) yet that was s_^-^-s,-<„ in a case in which the mortgagor was still in possession, Bogaht and before any foreclosure of the mortgage, and on grounds p^rky peculiar to the case of a mortgage, in which the mortgagor is regarded, at law, as well as in equity, as the real owner of the land. It is oti the same principle, that the interest of the mortgagee, before possession taken on foreclosure, is not subject to sale on execution. (^Jackson v. Willard, 4 Johns. *Rep. 41.) The provision in our statute of uses, (1 N. R. [ * 56 ] L. 74.) rendering lands liable to execution against the cestuy que trust, has no application here ; for that provision was taken from a branch of the English statute of frauds, and it relates only to those fraudulent and covenous trusts, in which the cestuy que use has the whole real beneficial interest,- and the trustee only the naked formal legal title. The statute, accordingly, provides, that, on such sales, the land shall be held and enjoyed, " freed and dischafged of aU encumbrances of the trustee ;" which provision shows, that the statute cannot apply to this case. If the contract had been fulfilled, so as that Smith had bieen entitled to a dfeed, when the judg- ment was obtained, and the sale made to Perry, the statute might have applied, and there would have been reason and fitness in the application. But, upon the facts in this case, I cannot perceive any in- terest in Smith whidh could be sold under the execution. Perry purchased only an equitable chose in action, and if, from the circumstance of part payment by Birdsall, and of Smith's possession and improvements, under the implied as- sent of Mleinson, a specific perfofmance rhight haVe been en- forced ; yet above half of the purchase money was unpaid, and the equitable interest of Smithy in the land, at the time of the judgnient, could not have exceeded' the propor- tion between the amount of the original consideration, and the sum actually paid, which was lesk than half of the pur- chase money. But judgments arid executfons at law were not intended by the statute to reach, nor have they been considered in practice as touching, such complicated and delicate interests. There is no more objection to this exemption than to that of ckoses in acfiofi, in general, and it is well known that they are not the Sttfeject of sale on execution. There must be either a real estate, or an interest known and recognized at law, or an equitable title within the purview of the provision- in the statute of uses^ tb which I have alluded, ot an execu- ti6ri at law will not reach it. A judgnient a;t law is not a lien on a *mere equitable interest in land, and the e.tecutioij f * 57 J 53 57 CASES IN CHANCERY. 1814, under it will not pass an interest which a Court cf law can ^^^--s,,-^^ not protect and enforce. Vkkplark I am, accordingly, of opinion, that the plaintiff has not en- Ca7kes titled himself to call the defendant. Perry, to account for the amount of his sale to Van Tuyl, and that the bill ought to be dismissed with costs. Bill dismissed. Verplank and others against Caines and his Wife [Approved, a Edw. S87. See 58 Cal. 29.J A demurrer to a bill in equity must be fbunded on some dry point of law which goes to the absolute denial of the relief sought. If the demurrer is bad in part, it is bad in toto. The appointing a receiver rests in the sound discretion of the Court; and forms no ground for a demurrer to a bill praying for the appointment. jiine i5ih THE bill Stated, that Gulian Verplank was seised, at the time of his death, of real estate in the counties of Delaware, Sullivan and Dutchess; that, on the 16th of October, 1792, V. made a will, devising all his real and' personal estate to his wife, (now the wife of Caines,) for life, and after her death, to such of his children as should be then living ; and appointed his wife executrix, aijd John Johnston and Fran-- cis Upton, executors of his will, with power to them, or any two of them, to sell any part of the said real estate which they might think proper. The testator died in November, 1799, leaving his children, the plaintiffs, his heirs and devi- sees, in remainder, of his real and personal estate. In pur- suance of the power in the will, John Johnston, one of the executors, and the executrix, sold parts of the real estate, and toolr bonds and mortgages for the security of the pur- chase money. In May, 1802, the executrix intermarried with the defend- ant, Caines ; and, in consequence of which, some of the *58 ] bonds and mortgages came into his possession, or under his control ; and he had received some of the principal moneys due thereon, for which he had refused to give any account to the plaintiffs. The bill prayed for a discovery of the payments made by the purchasers, the amount of them, and when made, distin- guishing what had been received for interest, and what for principal ; and that all the said bonds and mortgages might 54 CASES IN CHANCERY ^i be assigned to John Johnston, with power to receive the 1814. moneys, and to pay the interest thereon, annually, to the de- x.<*~v-^w- fendants, during the Ufe of the wife, or that some other fit Verpiank person be appointed receiver of the moneys, &c. Caines The defendants demurred to so much of the bill as sought a discovery of the sums received by the defendants for inter- est, and to that part which prayed for the appointment of a receiver, &c. Pendleton, for the plaintiffs. (2 Atk. 387. 389. 3 Ves. jun 253.) Caines, contra. (9 Johns. Rep. 611. Mitford's PI. 102. 136. Cooper's Eq. PI. 166. 2 Ves. 247.) The Chancellor. The defendants are not bound to ac- count for, or, perhaps, to disclose the amount of interest which has been received by them, as the plaintiffs have no right to the same. The interest belongs exclusively to the defendants, under the will of the former husband of Corne- lia Caines, and is a substitute for the rents and profits of the lands sold. But the defendants admit, in their answer, that they have received part of the principal due on the sales of the real estate of the testator, and for this they are account- able ; and it may form ground for the interference of the Court in appointing a receiver. The exercise of this power must depend upon sound discretion, and in a case in which it must appear fit and reasonable, that some indifferent per- [ * 59 son, under approved security, should receive and distribute the issues and profits, for the greater safety of all the parties concerned. Such a question is not ripe for decision until the hearing, and it cannot be the ground of a demurrer, at least, upon the facts charged in this bill. A demurrer, as Lord Loughborough observed, in the case of Brooke v. Hew- itt, (3 Ves. jun. 253.) must be founded upon some certain and absolute proposition, destructive to the relief sought for. It must be founded upon some dry point of law, and not on circumstances in which a minute variation may incUne the Court either to grant, or modify, or refuse, the application. The demurrer is, as to this object, clearly bad ; and the rule seems to be settled, that a demurrer is not like a plea, which can be allowed in part : it cannot be separated ; and if bad in part, it is void in toto. {Earl of Suffolk v. Green, 1 Atk. 449. Huggins v. York Buildings, 2 Atk. 44. Dor- mer v. Fortesque, 'i Atk. 282. Baker v. Pritchard, 2 Atk. 389. Baker v. Mellish, 1 1 Ves. jun. 70.) Lord Eldon says, that where a demurrer is to be overruled for gener ttlity, it depends upon t e leave of the Court, whether the 55 59 CASES IN CHANCERY. 18] i. defendant shall put in another demurrer more limited; or, ^.>r-v,,,-*»_/ perhaps, the defendant, during the pendency of the argu- grees ment, may apply for leave to amend, when the demurrer ap pUes to part of the bill only. Under these ei planations, he admits and enforces the general rule. Demurrer overruled Winter. [ * 60 ] *Gbeen and others against Winter. Where a, trustee was restrained, by injunGtion, from interfering with the trust estate, and aTecciw appointed by the Court, and it became neces- sary to bring suits at law, to recover the possession of lands, and col lect moneys belonging t» the trust estate ; the Court, on application of the cestuif qm trmt, ordered the receiver to bring the suits in the name of the ti-ustee, on giving security to indemnify the trustee, on account of such suits ; and that the receiver should hold the possession of the lands recovered, and moneys received by him, subject to the further order of the Court. Junt 20ih. THE petition, in this case, stated, that the defendant, in 1809, contraeted to sell to Jacob Multer 50 acres in lot No. 45, in Goshy's manor, (held by defendant in trust for plaintiffs, see S. C. ante, p. 26 — 44.) for 750 dollars, with interest, payable in seven annual instalments, the whole of which, with the interest, except for one year, remained unpaid ; that G. W. Mwfrcty was appointed, by this Court, a receiver of all moneys due to the trust estate, in trust for the plaintiffs. Multer was wholly unable to perform his contract, and had assigned it to one Finster, who was able, but refused to pay : that an injunction was isstfed, in Janu- ary, 1813, prohibiting the defendant from interfering with the trust estate, ot receiving any moneys thereon, of which persc»iatl notice was^ given to Finster, and public notice thereof given in the Utica Gazette ; that there is no way of eafereing the payment of the money due on the contract, but by an action' of ejectment ; that the declaration of trusty executed by the defendant, provided, that if he should be- come incapabte of executing the trust, the same should be vested in Rickafd Piatt or his assigns ; that the defendant is now eonfined on, execution, and Flalf has assigned over the trust to- Cteorge W. Murray ; that many parts of the trust estate are in possession of mere occupants, and adverse 56 GASES IN CHANCERY. *ei ♦claimants; and some of the tenants of the defendant hold 1814. The plaintiffs prayed that Murray might be authorized to Greek commence actions of ejectment on the title of the defendant, wihtzb. as trustee, to recover the trust estate, in the cases mention- ed, and to recover the lot sold to Multer, unless he, or those claiming under him, should, within a limited time, pay the amount due on the contract, and give a mortgage for the residue ; and that, on such payment, Murray should be au- thorized to give a deed. Pendletony for the plaintiffs. Uarison dnd Baldwin, contra. The Chancellor. Some person ought to be authorized to act in this case, for the security and benefit of the trust. The defendant cannot act ; for if the trust has not passed into the hands of Murray, yet the injunction restrains the defendant from acting ; and the special ord^r of the Court seems requisite, to authorize Murray, in the character of receiver, to institute actions of ejectment. (3 Bro. G. C. 86. 1 Vesey,jun, 164.) No injury can arise to the defendant in granting the appli- cation, since Murray will be required to give security to indemnify the defendant, on account of any suit which he may institute in his name; for that is the course in such cases ; (2 Aik. 213.) and he will have the possession of the lands to be recovered, as well as the moneys he may re- ceive, in the case of Multer, subject to the further order of the Court. On these terms, the motioa is granted. Motion granted. Vol I. 8 57 62* CASES IN CHANCERY. 1814. TERRY *£|Qgj,j^^ Sterry, and Louisa Ann, his Wife, againsi '*''"'^'' Arden and others. Eliza B. Servant, survivor, Sec, against Arden and others. lEeversed, 1 Cow. 743, 744 n.] In two causes against the same defendant, depending on the same facts, the plaintifTs were respectively witnesses for each other ; and after publication had passed, and the causes had been set down for a hear- ing; the defendant filed cross bills for discovery, on the ground tha.* the witnesses had not fully and satisfactorily answered one of the cross interrogatories. A motion made to put off the hearing of the causes, until answers were put in to the cross bills, was refused, it being too late for such an application, and the answers not appearing to be evasive. It seems that a cross Mil must be filed before publication is papsed in the first cause. June 20ih BILLS Were filed for an account of rents and profits, &g of two lots of land, conveyed by James Arden, the defend ant, to J)e Witt Clinton and others, in trust, for the plain tiffs, Louisa Ann and Eliza, who are the daughters of the defendant, Arden, by deeds delivered to them, the. 25th of December, 1805, and, afterwards, in 1807, re-deUvered by them to their father, and in 1809, deposited, by him, with Clinton. Louisa Ann married with , the plaintiff, Sterry, in December, 1809. The defendant, Arden, then sold the lot to Philip Verplanlc. Rules for publication were passed in the cause, about the 1st of Mizy last; and the cause was set down for hearing, on due notice, at the last May term, and continued over to this day. *•* , Cross bills were filed by the defendant, Arden, on the 9th of June instant, stating the circumstances under which the tweeds in controversy were made and delivered ; and that the plaintiff, Louisa Ann, and her sister Eliza, who was a plaintiff in another bill, in this Court, on a similar deed, were * 63 ] *witnesses for each other ; and that the plaintiff, Louisa Ann, had evaded the question put to her on the first cross inter- rogatory, and had not given a satisfactory answer to the same ; and, in order to obtain a fuller discovery on that point, the cross bill was filed. The first cross interrogatory was, " Have you ever heard the defendant, in the presence of the plaintiff, about the time of signing the deed, or at any other time, and when, declare that the property was intended for the use of the plaintiff, after the death of the defendant, and not before : and that 58 CASES IN C HANGER y. 63 he was to take the rents and profits during his life, or words 1814. in substance thereto ; and that, in case she married without \^^~-^y~^^ his consent, the deed was to be void ?" Step «y V. Akdzs. Harison and Emmett, for the defendants, now moved to postpone the hearing of the causes, until answers were put in to the cross bills. They cited Cooler's Equ. PI. 85. Riggs and Griffin, contra. They cited Wyatfs Pr. Reg. 60. 86. The Chancellor. This is an application to the discre- tion of the Court, like the application to put off a trial at law ; and if I could perceive any thing like evasion in the deposition alluded to, I should feel strongly inclined to grant the motion ; and, especially, considering that the plaintiffs, in the two suits, are witnesses for each other, and have simi- lar interests, depending upon the same point, in litigation. But I do not discover any just ground for the charge of in- tentional evasion, in the answer to the first cross interrogato- ry. The interrogatory was quite general, and not pointed to any particular conversation or declaration of the defend- ant, as to the limitation of the deed. The answer of one of the plaintiffs, Eliza B. Servant, states a conversation and declarations of the defendant, on the matter in question, and the time when, and declares, that was all she remembered relative *to the matters inquired of in that interrogatory, and [ * 64 ' that further thereto she could not depose. The other plain- .iff, Louisa Ann Sterry, states, that the first time she ever had any idea that the conveyance of the property, in the in- tention of her father, was accompanied with any condition, or restriction, was in January, 1809, on the delivery of the deed to Mr. Clinton ; and she details what declarations of the defendant were then made ; and adds, that further to that interrogatory she could not depose. The omission to add a more particular and pointed nega- tive of any further knowledge on the subject, so as to meet the very words of the question, was probably the act of the examiner, since the 29th rule of the Court, as published in .Tune, 1809, directs the examiner, after taking the deposition ) what the witness can depose, to add one general clause, idicating that to the remainder of the interrogatory the wit- less cannot depose. If the answers to the interrogatory have not the appear- ance of evasion, it is not a sufficient cause for granting the motion, that the answers are not quite satisfactory, and that a more direct and particular denial of any recollection or knowledge of other and further declarations of the party, 59 64 CASES IN CHANCERY. 181 ».^ was an appeal to the Court of Errors, and the decree was af- Travis firmed, (a) The original plaintiff, afterwards, died, (13th waieih of August, 1812,) and the suit was revived in favor of the present plaintiffs, who are the heirs and devisees of Ezekiel Travis ; and two of them executors of his last will. By a decretal order of the 23d January, 1813, the suit was ordered to stand revived, and the master, as before, was directed to take an account, and the balance, if any, to be paid, and the conveyance to be executed ; and that further directions be reserved until the coming in of the report. The master made his report, in May following, which was confirmed ; a small balance was reported to be due to the defendant, on the tender of which, with the interest, a con- veyance was ordered, by a decree of the 3 1st of May, 1813. This decree being silent as to costs, an application was made, in September, for costs, and,'on the 8th October, costs were decreed, by the late chancellor, including, as well the costs of the original suit as of this suit, and of the ejectment suit, as well as of the feigned issues tried at law. In May last, a rehearing was ordered upon the question of costs. Henry, for the plaintiffs. 1. To show that costs follow the justice of the demand, in equity, as well as at law, he *cited Roberts v. Kniffer, 2 Atlc. 112. Blackburn v. -Greg- , * ST '• son, ] Bro. C. C. 424, 425. 2. He contended, that the decree of the 18th of October, 1808, was a final decree, reserving only the question of costs. 3. He insisted that the rule that costs die with the per- son, if applicable to the plaintiff on a bill of revivor, is appli- cable only where there is a decree for costs alone ; not where there is also a duty decreed to be performed. (2 Ves. 580 3 Atk. 772.) 4. As to any objection that the personal representatives of Ezekiel Travis are not before the Court, that is matter of form, and is a reason for letting the cause stand over, until they are technically made parties, as executors. But it is expressly alleged in the bill, that two of the plaintiffs are the executors of Ezekiel Travis, though it is not alleged that they proved the wilj. jRi^g-i, contra, contended , 1. That the decree of Octo- (o) Vide 9- JoAjw. iJ^. 450. 77 in CASES IN CHANCERY. 1814. ^*''' 1808, was interlocutory, and that of the 31st of Mat/, ^^^^-^^"^^^ 1813, the final decree, in the cause ; and that being silent as Travis to costs, they are gone. S6, if interest is not reserved by WatJers t^® decree, the Court cannot give it. (Hale v. Greenbarik, Dickens's Rep. 370.) 2. As Ezekiel Travis died before any decree for costs was made in his favor, they are lost, as costs could not be de- creed after his death. It is a general rule that, if costs are not taxed, they die with the party. {Kemp v. Mackrell, 2 Ves. 580. 3 Ves.jun. 195.) 3. But if the costs are recoverable, the parties entitled to those costs, which accrued during the lifetime of Ezekiel Travis, are not before the Court. They are recoverable by the executors only, not by the heirs and devisees : and the plaintiffs are not befpre the Court in the character of ex- ecutors. (3 Johns. Rep. 543. 1 Dickens's Rep. 16. 2 Dickens, 768.) [*88] *4. But if the executors were properly before the Court, they could not recover the costs, for the reasons already aU leged ; so that there can be no reason for staying the pro- ceedings until they should appear as executors. 5. On no principle whatever ought the costs of the eject ment to be recovered ; as the defendant put the plaintiff to unnecessary costs, by defending, the suit on the grounds which could not be supported. The Chancelloe. The first objection to the decree of the 8th of October, 1813, for costs, was, that the question ol costs was not reserved in the decree of the 31st oi Moy pre- ceding, and that as the decree was silent as to costs, and wa? a final decree, they were gone or waived, and could not af- terwards be awarded, unless on application for a rehearing, and for opening the decree, which was not attempted. I have no doubt that the decree of May, 1813, is to be regarded as the ^^naZ decree in the cause. It was made upon the coming in of the master's report, ascertaining the lands to be conveyed, and the balance to be previously paid. It was the final fend and closing of the controversy, and was analogous to a final, as contradistinguished from an inter- locutory, judgment at law. The decree of October, 1808 cannot be so regarded, for though the right 'to a specific performance was declared generally, yet the extent of that right, and the conditions upon which it was to depend, were not ascertained. The plain reason of the thing, the obvious meaning of the term, and the definitions in the books of practice, all concur to show that the decree of the 31st of May, 1813, and no* the decree of the 27th of Odobet 78 CASES IN CHANCERY. 88 1808, was the final decree in the cause. (1 Har. Prac. 1314 622.) ^ -.-^- Being a final decree, and being silent as to costs, they Tkavis were undoubtedly lost ; as much so as if they were omitted ^^terj to be awarded, and incorporated in a final judgment at law. This is the settled rule ; and Lord Northington, in the case of Herle v. Greenharik, (I Dickens, 370.) said, that even *interest is lost, unless it be reserved by the decree on hear- [ * 89 ing the cause on the coming in of the master's report. 2. But even if this technical objection did not exist, it is contended, that as EzeMel Travis died as late as the 13th of August, 1812, but before any decree of costs was made, the right to costs became extinct by his death ; and the rule, at law and equity, is said to be the same in such cases, and that the costs die with the person. (^Lloyd v. Powis, Dick- ens, 16. 2 Ves. 580. and 461. White v. Uayward. Hall V. Smith, 1 Bro. 438.) I have examined the books on this point, and have not met with a case allowing costs, under such circumstances, to the representatives of the party. The general rule is even more rigorous than this, for if the party die before costs be taxed, though they be decreed, they are gone. (2 Ves. 461.) Lord Hardwicke, in Kemp v. Mackrell, (2 Ves. 580. 3 Atk. 811. S. C.) said, that this was a hard rule, as it turned on the distinction, whether the costs were taxed or not, and the right was as certain before taxation as after ; and accord- ingly in Morgan v. Scudamore, (3 Ves.jun. 195.) the chan- cellor established the rule, that where the plaintiff dies after a decree for costs, and before taxation, they may be recov- ered by his representatives, by a decree for revivor. The same principle had been admitted and acted upon by Lord Hardviicke, in Blower v. Morrets, (3 Atk. 772.) The onl^ point, in all these cases, was, whether costs already decreed, but not taxed before the death of the party, were recover- able ; but the question is not so much as agitated any where, whether there be any ground for a claim for costs if the party die before they have even been decreed or considered. 3. This objection, therefore, is decisive as to the costs that had accrued in the lifetime of Ezekiel Travis : But if this difficulty was not in the way, there would still be another and a third difficulty to be surmounted, and that is, that the personal representatives of Ezekiel Travis, who, if any, would have *been the persons entitled to these costs, are not [ * 9C before the Court. The bill of revivor is by the heirs and devisees, in tie capacity of heirs and devisees; and although two out of the ten plaintiffs are stated in the bill of revivor to be executors of Travis, yet they are not alleged to have proved the will, or to have tak<>n upon themselves the trust, nor 79 Waters. 90 CASES IN CHANCERY. 1814. ^^^^ ^^^y revived the suit in that capacity ; and we can only ^„,^-s,^-^y know them in the character in which they appear before the Travis Court. (2 Diclcens, 768. 3 Johns. Rep. 552.) For these reasons, and upon either of the grounds I have suggested, I am of opinion that the plaintiffs are not entitled to a decree for the costs that had accrued in the Hfetime oJ EzeMel Travis, and, for the reason first mentioned, they are not entitled to the costs that have accrued since. Upon a view of the whole merits of this controversy, I do not think there is any cause to regret the application and operation of the general rule. The parties to the original contract, and which was the source of all this long and expensive liti gation, were both in default, in slumbering for many years over the non-execution of the contract, and not calling for its prompt performance, nor doing all that was incumbent on each party respectively to do, , to entitle him to a fulfil- ment. The tendency of such delays, is always to obscure the truth and certainty of transactions, and to render the performance doubtful and diflScult. It is consonant to the dictates of justice and good policy, that each party should be made to feel the inconvenience of such neglect, de- faults and delay, by being subjected to the payment of his own costs ; and this has frequently been the course of the Court in such cases. (Radcliffe v. Warrington, 12 Ves. 335. Wynne v. Morgan, 7 Ves. 202.) Costs denied, (a.) (a) Affirmed, on appeal, March. 27tb, 18X5, ride 12 Johns. Rep. 500 80 CASES IN CHANCERY. *9l 1814. *SiMPS0N against J. Hart. v. [Reversed, 14 Johns. 63. Approved, 1 Paige, 47. Followed, 8 Johns. Ch. 232; Hart 7 Id. S89.] Judgments, not only in the same Court, but in different Courts, may be set off against each other, at law ; and the powers of Courts of law, in allowing such set-off, does not depend upon statute, but on the general jurisdiction of the Court over its suitors. 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 circum- stances of the case, refused to allow it, this Court refused to sustain a bill filed for an injunction and a set-off. A decision of a Court of competent jurisdiction, being res judicata, is conclusive and binding on all other Courts of concurrent jurisdiction. THE bill stated, that the plaintiff recovered judgment in July I5tb. the Mayor's Court of the city of New-York, in December, 1813, against the defehdant and E. Hart, for 4,585 dollars and 43 cents damages, for certain assaults and batteries ; that, afterwards, in the same term, the defendant, /. Hart, recovered judgment against the plaintiff for 500 dollars damages for certain assaults and batteries ; that on the 8th of January last, the plaintiff obtained an order to stay pro- ceedings in the said causes, and applied, on due notice, to the Mayor's Court to have the damages in the last-men- tioned cause deducted from the damages recovered in the first cause, on an affidavit, stating the existence of several unsatisfied judgments against the defendant, prior in date to the judgment obtained by the plaintiff against him and E. Hart, on one qf which the execution was returned nulla bona ; that the motion to the Mayor's Court, to allow the deduction by way of set-off, was denied ; that several unsatisfied judgments, against E. Hart, now exist, prior in date to that of the plaintiff, and that the present defendant is now in prison on a ca. sa. The plaintiff prayed for an injunction, to stay proceedings in the cause of the defendant against him ; (which was granted ;) and that so much of his judgment might be set off against the defendant's judgment. *The answer admitted the substance of the facts stated in [ * 92 j the bill, and added, that the recorder, on the motion for a set-off in the Mayor's Court, with a full knowledge of all the facts that appeared in evidence on the trial, and after con- sidering all the legal and equitable reasons arising out of the case, denied the motion. The defendant admitted the judg- ments against him, as alleged, and that he was in prison ; and that judgments vi^ere existing, as alleged, against E. Hart, his father, but said that they had been entirely, or in great part, paid off; and that he did not believe that E. Hart was insolvent. Vol. I. 11 81 92 CASES LN CHANCERY. 1814 WiMns, for the defendant, now moved to dissolve the '.-<^-s/-^_' injunction staying the defendant's execution at law. He SiMpajN cited 2 Black. Rep. 869. V. T A. 'Emmet, Colden, and RiTcer, contra. They con- tended that the bill set out facts not before the Court below; viz. the insolvency of the defendants ; that the decision in the Court below was not, therefore, in the legal and techni- cal sense, res judicata. If the plaintiff had no remedy in this Court, the decision of the Court below would be conclusive, and without appeal. Now, it would be dangerous and op- pressive to permit every county Court to exercise equitable powers, in matters of set-off, without appeal. A summary decision on a motion, in this way, was not that res judicata which could be pleaded in bar. They cited 2 Wash. Rep. 36. 255. 260. Free, in Ch. 233. Vent. 351, 352. 1 Ves. 323.326. 13 F0«. 180. 2 Fero. 146, 147. 2 Esp. Rep. 627. 3 Bl. Com. 388. 1 Burr. 394. 2 Atk. 603. Cooper's Eq. PI. 267. 269. 5 Ves. 610. 614, 615, 616, 617. 2 Caines's Rep. 40—51. 56. 7 Term Rep. 455. 7 Ves. 14,15. 19.21. Finch's Rep. 412. Vauh-v. Sherry and others. Harison, in reply, contended, that Courts of common law exercised the equitable power of setting off judgments, long [ * 93 j *before the statutes, and before our revolution. It was a power inherent in the Courts of law, from the reason and justice of the thing. The case of Vaulx v. Sherry, was anomalous, and the cases cited from Virginia, consider it as founded on a refusal of justice' at law. There is no pre- cedent for such a power in a Court of chancery, as is now claimed. Anciently, it is true, there were instances of a Court of chancery relieving against an oppressive verdict; but that practice ceased as soon as Courts of law became more liberal in granting new trials. Courts of chancery now refuse to interfere, because the parties have complete remedy at law. If the plaintiff had applied to this Court, in the first in- stance, his bill would have been sustained ; but he elected a Court of law, and, having made his election, he must be bound by the judgment of that Court. There is no new equity in this case. (1 Johns. Cas. 436.) In Lechmere v. Hawkins, (2 Esp. Cas. 627.) Lord Kenyon meant no more than that, if the party could not be relieved in a Court of law, he might seek relief in a Court of equity. So, in the present case, if the recorder had refused the application, as not within the jurisdiction of the Mayor's Court, the party might apply here 82 CASES IN CHANCERY. 93 The Chancellor. This is a motion to dissolve the iii- 181 4. junction, and it necessarily involves the consideration of ^.^i— s,^-«»^ the main question arising upon the pleadings, viz. whether, Simpsos after the decisii )n in the Mayor's Court, disallowing the set- jj^^t. off, this Court ought now to interfere, and direct the judg- ment obtained by the defendant to be deducted from the amount of the judgment obtained by the plaintiff against the defendant and his father, Ephraim Hart. it is admitted that the question of the set-off was raised in the Mayor's Court, upon the motion of the plaintiff, and that, upon a consideration " of all the legal and equitable reasons" arising out of the case, the motion was denied. *There are no additional facts stated in the bill, and con- [ * 94 ] fessed by the answer, which can materially affect the merits • of the question . The prior judgments against Ephraim Hart, were not shown on the application in the Mayor's Court, though the party had it in his power to have done it ; but the existence of these Judgments, when shown, does not afford any new and distinct ground for equitable relief, since they only form an additional item of testimony, going to the same point with that before introduced, and which was the insecurity of the plaintiff's debt. We have then, here, the same question, resting on the same principles, as the one considered and decided in the Mayor's Court ; and It is certain that the Mayor's Court had competent jurisdic- tion over it. In Barker v. Braham, (2 Black. Rep. 869.) decided some time before our revolution, the English Court of C. B. per- mitted a judgment of the K. B. to set off against a judg- ment in the C. B. so as to narrow the execution to the bal- ance. That case admitted and sanctioned the equitable and salutary jurisdiction of the Courts of common law, in cases beyond the letter of the statutes of 2 & 8 G. II. Sub- sequent cases, in the English Courts, hav.e confirmed this doctrine, and carried it into effect. It has been observed, that the power of setting off judgments, not only of the same, - 'Ut of different Courts, did not depend upon the statutes of iCt-off, but upon the general jurisdiction of the Court over its suitors, and that it was an equitable jurisdiction, and frequently exercised. (Montagu on Set-offs, 6. Mitchill v. OldfieU, 4 Term. 123. Glaister v. Hewer, 8 Term, 69.) The same principle has been often recognized, and acted upon, by the Supreme Court of this state. (3 Caines, 190. 1 Johns. Rep. 144. 3 Johns. Rep. 247.) It is very clear, then, fi'Dm these authorities, that the Mayor's Court had a full, established, and rightful cognizance of the relief sought by the present bill . and it must have been exercised accord- 83 94 CASES IN CHANCERY. 1814. '"g ^^ *^^ impression which that Court received of th<; jus- v_<,-v^.— ^^ tice and equity of the case. Simpson *The plaintiff elected to seek his relic f in the Mayor's „ ^^^. Court, upon the very point now raised by the bill. He had r * 95T '^'^ choice, whether to apply to that Court, or to this, in the first instance. That Court had concurrent equitable cogni- zance of the question, and this Court is now, in eflect, called upon to review the case, when it has, confessedly, no such appellate jurisdiction. The general principle is,' that the decision of a Court of competent authority, or a res judicata, is binding and conclusive upon all other Courts of con- current power. It is a principle, which pervades not only our own, but all other systems of jurisprudence, and has be- come a rule of universal law, and is founded in the soundest policy. {Dig. 44. 2. & Voet. ibid. Kaims's Equity, vol. 2. 367.) • It springs from that comity which is due from one • Court of concurrentjurisdiction, in the given case, to another ; and from the necessity of putting an end to litigations which have been once heard and decided, and of preserving mu- tual harmony, respect and confidence between the several tribunals concerned in the same administration of justice. These considerations have struck my mind with great force, and I have been induced to examine the cases which have been supposed to intimate a different doctrine. In the long course of judicial decisions, cases will sometimes appear, which seem, at first sight, to contravene the best settled rules. This arises as often from imperfect and inaccurate reports of cases, as from any other cause. But, on this sub- ject, I find no modern case, in which chancery has taken cognizance, on the same grounds, of the very point which another Court, of competent authority in the case, has con- sidered and decided. Whenever the bill has been sustained, it has always been upon some new matter of equity, not arising in the former case, or for some relief, to which the powers of the Court of law were not fully and effectually adequate. Thus, in the annuity case, on which much stress was laid by the plaintiffs counsel, {Bremley v. Hollani', 5 Ves. 610.) it was urged, that the application at law had [ * 96 ] been merely upon *the manner upon'which the considera- tion was paid, and had no reference ' to the new and clear objection then raised. It was further observed, that the summary application to a Court of law, was given, by the statute, in specified' cases only, and that it was not intended to shield the grantee from another application, on different grounds ; in short, that the K. B could not exercise the ju- risdiction prayed for by the bill The master of the rolls pursued in the same train of remark in giving his opinion, 84 CASES IN CHANCERY. 96 aiitl .ibsxwqd, that the plaintiff was not to avail himself of igi4 any objection that was the ground of application to the K. B., ^.^^-^.y~<^ and that the bill sought to set aside the annuity, not on the Simpso* ground on which the K. B. was called on. It was, doubt- hakt. less, for these reasons that the lord chancellor, when the case came, afterwards, before him, on appeal, (7 Ves. 3.) said that he had laid out of the case the applications to the K. B. , As to the dictum of Lord Kenyan, in Lochmere v. Haw- Icins, (2 JEsp. Rep. 626.) it may want some explanation, but, as it stands, it does not appear to touch the point before us. It does not apply to the case where a Court of law, having equitable jurisdiction in the case, liad actually exer- cised it, and the unsuccessful party had resorted to chancery for relief; but it was only applicable to a case in which a Court of law would not, or could not, assume cognizance of the matter of defence. Nor do the dicta of Lord Hardwicke and Lord Thurlow, (1 Ves. 327. 7 Ves. 19.) which were also cited upon the argument, amount to any thing more than the general remark, that the jurisdiction of Courts of law, over the case o( prof arts of lost deeds, and of the con- sideration of a deed, and of accounts, does not destroy the ancient jurisdiction of chancery in matters of that kind. But dicta are never to be relied on when repugnant to established principles, and nothing would be more dangerous to the law, as a science, than to set up loose, extra-judicial sayings, as a just ground of decision. The case of Hart v. Lovelace, (6 Term Rep. 471.) shows, in a more authentic shape, the real *opinion of Lord Kenyon, on the effect of the exercise [ * ^^ j of concurrent powers. That was also a case respecting a memorial under the annuity act, and it had been before the Court of Chancery. This induced Lord Kenyan to remark, that he had " some difficulty in his mind respecting the de- cree in chancery ; that if the question had been brought before that Court, and had received a judicial decision, he should have thought himself bound by it, as being, the judg- ment of a Court having competent jurisdiction over the sub- ject matter. But the proceedings there were diverSo intuitu ; this suit had a diflferent object in view, and the question be- fore the K. B. did not arise in that Court." The other judges expressed themselves to the same effect. Before Courts of law were in the exercise of their present liberal jurisdiction over the subject of new trials, the parties were frequently forced into equity, to be relieved from op- pressive verdicts. (3 Blaclc. Com. 388. Vauh v. Shelley, Rep. temp. Finch, 412.) Since, however, that jurisdiction has been well established, and freely exercised, on equitable, as well as legal grounds, the party failing in his application 85 97 CASES IN CHANCERY 1814 ^^ ■'^'^ fo*" ^ P^^ trial, will not be relieved in equity, at least, v^*--s,,--«_, ujion the same merits already discussed, and fully within Simpson the discretion of a Court of law. Where Courts of law and HvRT. equity have concurrent jurisdiction over a question, and it receives a decision at law, equity can no more re-examine it than the Courts of law, in a similar case, could re-examine a decree of the Court of Chancery. In the case of Bateman V. Willoe, (1 Schoales fy Lefroy, 201.) we have the opinion and decision of so high and respectable an authority as Lord Redesdale, on the subject now under consideration. A ver- dict was obtained, at law, against the plaintiff, which he considered unjust, and having failed in his application for a new trial, on account of a defective notice of the motion, he sought relief in equity; but the bill was dismissed, and Lord Redesdale said, that he could not find any ground [ * 98 whatever for a Court of equity to interfere, because *a party liad not brought evidence which was in his power at the tri- al, or because he had neglected to apply, in due time, for a new trial. " There are cases," he observed, " cognizable at law, and also in equity, and of which cognizance cannot be effectually taken at law, and, therefore, equity does some- times interfere ; so, where a verdict has been obtained by fraud, or where a J)arty has possessed himself, improperly,' of something, by means of which he has an unconscientious advantage at law, which equity will either put out of the way, or restrain him from using: but without circumstances of that kind, I do not know," says Lord Redesdale, " that equity ever does interfere, to grant a trial of a matter tahich has already been discussed in a Court of law, a matter capa- ble of being discussed there, and over which the Court of law had full jurisdiction." But, upon the principles of -the present bill, application might be made to this Court, in most cases, where a motion for a new trial had been denied in a Court of law. The settled doctrine of the English chancery is, not to relieve against a judgment at law, on the ground of its being contrary to equity, unless the defendant below was ignorant of the fact in question pending the suit, or it could not have been received as a defence; (Williams v. Lee, 3 Atlc. 223.) this was also the doctrine of the Court of Errors, in the case of Le Guen v. Gouverneur &f Kemble, (1 Johns. Cos.- 436.) This case is one of the strongest, against the interference of this Court, that could well be presented, for the party is not seeking relief against any laches, or mistake, or fraud ; but he is seeking for a review of his case, after faiUng in a voluntary application to the equitable powers of the Mayor's Court, on the very point now submitted, and after that appli- 86 CASES IN CHANCERY. 99 cation had been received, heard and denied. If this fresh 1814. attempt could be sustained, there would be no equality of ^..^^v-"^-- light between the parties. The remedy would not be re- Simpson ciprocal, for if the set-off had been allowed in the Mayor's habt; *Court, it will not be contended that the defendant could r * 99 " have been reheved here against it. The principle that a matter, once considered and decided by a competent power, shall not be reviewed, by any other tribunal having concur- rent power, except in the regular course of error or appeal, does not rest upon the mere technical form of the decision. That would be too narrow a ground : decisions in the case of new trials do not appear upon record, and they are also decisions resting in sound discretion. It is the unfitness, and vexation, and indecorum, of permitting a party to go on successively, by way of experiment, firom one concurrent tribunal to another, and thus to introduce conflicting decis- ions, that prevents the second inquiry ; and it ought to be observed, as an answer to much of what was said against the incompetency of the Courts of Common Pleas over such questions, that if this mode of review was to prevail, it would apply as well to the case of an unsuccessful appli- cation to the Supreme Court, as to any of the Courts be-: low it. The motion to disso ye the injunction is, accordingly, granted. CASES IN CHANCERY. Matter of Andrews. ^n the Matter of IcHABOi Andrews, an Infant. A surrogate has power to appoint a guardian, but has no jurisdiction over him as a trustee. Chancery has the same superintendence and control over guardians bj statute, or testamentary guardians, as it has over guardians in socage. July 25ih. THE petition of Sarah Gilbert stated, that she was mother of the infant, who was born in October, 1807, and that in December, 1808, Justus Gilbert, the second husband of the petitioner, was, by the surrogate of Cayiigtt county, appointed [ * 100 ] *guardian to the infant, and by virtue of that appointment possessed himself of the real and pergonal estate of the infant. That in January, 1812, Justus Gilbert absented himself from the petitioiier in a secret manner, and enlisted in the army of the U. S. for five years. That he is now on the western frontier, and has converted to his own use the personal es- tate, and the rents and profits of the real estate, and has lately attempted to dispose of the real estate ; and that he is in habits of extreme intemperance, &c. ; and thaf the infant is a charge on the petitioner; who prayed foi relief, &c. The facts in the petition were sworn to. The Chancellor. Though the guardian was, in this case, appointed by the surrogate, under the act of 1813, (iV. R. Laws, vol. 1. 454.) he is as much under the super intendence and control of this Court, as if he had been ap- pointed by it in the first instance. The power of the sur- rogate extends only to the appointment of the guardian ; he has no general jurisdiction over him as trustee. That pow- er remains unimpaired in this Courtj and every guardian, however appointed, is responsible here for his conduct, and may be removed for misbehavior. It has repeatedly been declared, that a testamentary or statute guardian is as much under the superintendence of the Court of Chancery as the guardian in socage. (^Beaufort v. Berty, 1 P. Wms. 704. JSyre v. Countess of Shaftsbury, 2 P. Wms. 107. Rouch v. Garvar, 1 Ves. 160.) I shall, therefore, direct a reference to a master, to ascertain the truth of the allegations contained in the petition, and to report thereon. Rule accordingly. 36 CASES IN CHANCERY. *101 1814. Herrick *Herrick against Blair and Blair. blmr. Arbitrators, after a witness had been sworn and examined, and they were left alone to deliberate on their award, called the witness again, and, without the knowledge or presence of the parties, examined him as " to matters material to the controverey, 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 non-performance of the award, was refused. Awards cannot be impeached, or set aside, unless for corruption, ])ar- tiality, or gross misbehavior in the arbitrators, or for some palpable mistake of the law or the fact. THE bill Stated, that, on the 31st of March last, the par- juiy Kit ties to the bill submitted their matters in difference,* relative to a lease of five acres of land, at Greenbush, from the plain- tiff to the defendants, for five years, &c. to three arbitrators, and entered into arbitration bonds accordingly ; that the ar- bitrators met, and heard the parties and their proofs ; and after the arbitrators were left alone to deliberate, they called before them a witness who had been already sworn and ex- amined ; and, without the Knowledge, or consent, or pres- ence of the parties, examined the- witness " to matters ma- terial to the controversy, of which he had given testimony before, and about which the arbitrators differed, as to what he testified on the former hearing." That the award was in favor of the defendants, and awarded the plaintiff to pay to them 100 dollars, which he had refused to do ; and had been sued at law on the arbitration bond. The plaintiff prayed for an injunction to stay the suit at law, and for gen- eral relief. Champlin, for the plaintiff, moved for the injunction, and cited 6 Fes. 70. The Chancellor. There was nothing done, in this case, by the arbitrators, from which misconduct can be inferred. *They only called a witness before them, who had been al- * 102 ready examined in the presence of the parties, to explain his testimony, concerning which the arbitrators differed. It is not alleged, nor is it to be inferred, that the witness deposed differently, as to any fact, from what he meant to have tes- tified, and to have been understood, on the first examina- tion. The case does not come up to that of Walker v. Fro hisher, (6 Ves. 70.) for there the arbitrator, after he had told the parties that the hearing was closed, and had dismissed Vol. I. 12 89 10-2 CASES IN CHANCER!. 1814. them, examined three more persons on the part of the dc ^.^"-N,--...^ fendant, and when no person was present on the part of the iIerrick plaintiff. This was unfair, partial, and a gross misconduct, jjj,^ and contrary to all the principles of a just proceeding. There is no analogy between that case and this ; and to in- terfere and set aside the award upon an . irregularity, (even admitting it to be one,) so slight and immaterial as the one now set up, would be contrary to the general doctrine of the Court in respect to awards. The uniform language of the cases is, that an award cannot be impeached but for corrup- tion, partiality, or gross misbehavior, in the arbitrators, or for some palpable mistake of the law or the fact. The ar- bitrators are judges of the parties' own choosing ; their pro- ceedings and award are treated with great liberality, and even a mistake upon a doubtful point, often will hot open an award. These principles have been declared and assert- ed in a series of decisions, all going to the same point, and containing a weight of authority not to be resisted. (Earle V. Stacker, 2 Vern. 251. and Pitt v. DawTcra, cited, ibid. Cornforth v. Geer, 2 Vern. 705. Ives v. Medcalfe, 1 AtJc. 63. Bidoul V, Pain, 3 Atk. 486. Tittenson v. Peal, 3 Atk. 529. Anon. 3 Atk. 644. Hawkins v. Colclough, 1 Burr. 274. Knox v. Symmonds, 1 Ves. Jun. 369. Mor- gan V. Mather, 2 Ves. jun. 22. Chace v. Wesimore, 13 East, 357.) The injunction is, accordingly, denied. 90 CASES IN CHANCERY. *'103 1314, Woods *WooDS against Morreli. and others. MoRRitt. [Adhered to, 3 Johns. Oh. 302. Followed. 8 Paige IW. See S Johns. Ch. 348; 3 Paige 108.] Exceptions to an answer for impertinonce as well as, insuflSciency, are made in writing, and referred, at tlie same time, to the master, and are disposed of together. (This is different from the practice of the Court of Chancery in England.) The best rule to ascertain whether the matter be impertinent, is to see whether the subject of the allegation could be put in issue, or be given in evidence between the parties. Vn answer ought not to go out of the bill, to state what is not material or relevant to the case stated in the bilL Long recitals, stories, con- versations, and insinuations tending to scandal, are impertinent. So, facts not material to the decision are impertinent, and, if reproachful, are scandalous. Sut if the plaintiff will put impertinent questions, he must take imper- tinent 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 details. The defendant must answer directly and precisely to every material allegation in the bill, and not by way of a negative pregnant. The charges are not to be answered literally; but the defendant must confess or traverse the substance of each charge positively, and with certainty. Particular and precise charges must be answered particu- larly and precisely, and not generally, though the general answer may amount to a full denial. If a fact is charged to be within the defendant's personal knowledge, he must answer positively, and not to his remembrance or belief; and as to facts not within his own knowledge, he must answer as to his information and belief, not as to his information or hearsay, without stating his belief one way or the other. THE bill stated, that William TV. SacJcett, being indebted iu,j 27ti. to the plaintiff, on the 30th of July, 1812, conveyed to him certain lots of land in the town of Newburgh, in Orange county, in trust for all his creditors. The plaintiff, at the same time, made a declaration of trust, that the plaintiff wa« to sell parts of the land unencumbered, and to pay off en- cumbrances, and then to pay the debts, and return the sur- plus to Sacicett. The plaintiff took possession of the land and leased it. There was a mortgage on the land^ to Wil- liam, Lawrence, and a prior judgment, of October, 1811, in favor of Austin If Andrews, who assigned it to the defendant, Morreli, on the 10th of January, 1812, for a less sum. [ * 104 J 'here was also a judgment in favor of E. Griswold, of fune, 1812, another in favor of Duryee^ Heyer, docketed . n August, 1812, who refused to receive payment and assign it. Executions were issued on the judgments, and the sheriff was required to sell in parcels ; but on February 1813, he sold all the premises together, on all the judgments , and declared the sale to be subject to all encumbrances 91 .04 CASES n CHAVCERy. 181 4. Morrell and Weller, defendants, by their attorney, Sleight one of the defendants, purchased the property, at the sale of the sheriff, for 1,200 dollars ; and a conveyance was ac- cordingly executed to them. The bill charged fraud in the sale, on the part of the defendants, with a view to defeat the trust. Actions of ejectment were brought by the defendants, under the sheriff's deed. A suit, by Lawrence, on his mortgage, was pending in chancery at the time of the sherifTs sale. The defendants put in separate answers, which are not necessary here to be stated. Numerous exceptions were taken to each of the an- swers, some for insufficiency and others for impertinence. On a reference to the maistfer, the exceptions were generally allowed by him, and exceptions were taken, on the part of the defendants, to the master's report. The cause came on to be heard on the exceptions to the report. It was objected on the part of, the defendants, that it was not the course and practice of the Court to make exceptions in writing to answers for impertinence, and especially joined with other exceptions for insufficiency ; that exceptions for impertinence were first to be disposed of before the answer was to be questioned for insufficiency. They cited 1 Har Ch. Pr. 310. 324, 325. 14 Ves. 535, 536, 537. Burr, for the defendants. P. A. Jay, for the plaintiff. [ * Ids ] *The Chancelloh. The English practice is not to make formal and special exceptions in writing, in the first instance, to an answer, for scandal or impertinence, as is done for insufficiency ; but on a suggestion, by motion, of such matter, the answer is referred to a master to look into, and if he certifies against the exception, the plaintiflfmay except, in writing, to the report, and specify the particular parts which are scandalous or impertinent ; and this reference for impertinenoe must precede one for insufficiency. I find, however, thai a different practice prevails here in this Court, and instead of a loose and general suggestion, the party does, in the first instance, what he eventually may be obliged to do under the English practice, and the objections to the an- swer, as well for impertinence as for insufficiency, go at once to the master, and are disposed of together. I do not per- ceive any strong objection to this mode of practice, which ought to induce me to interfere and change it. It may save time ; for it admits of but one reference to the master, in stead of two, and by reducing the exceptions to writing, and CASES IN CHANCERY. J 05 Specifying the parts that are deemed impertinent, there is 1814. greater precision and certainty in the proceeding. v-^-n.-"*-' With respect to the merit of the exceptions, I would first, Woots generally, observe, that from the short experience I have morrsli. had in this Court, it appears that much tedious discus- sion and delay have arisen from what are deemed defective or impertinent parts of an answer. The general rules on this subject are founded in good sense and sound justice, and they cannot be too well understood, nor too strictly en- forced ; the neglect of them will always receive disapproba- tion. If answers are to be made the vehicle of recrimina- tion, or of matter of mere history, or inducement, or scandal, not pertinent to the case, and only useful to excite prejudice, the character of pleadings, in this Court, would be degraded. And if the defendant is not compelled to a full, frank and explicit disclosure of ^very thing properly required of hira, and resting in his knowledge, information or belief, one of *the most salutary ends of the jurisdiction of this Court [ * 106 [ would be defeated. 1. As to impertinent matter, the answer must not go out of the bill to state that which is not material or relevant to the case made out by the bill. Long recitals, digressions, stories, conversations, and insinuations tending to scandal, are of this nature. Facts not material to the decision, are im- pertinent, and if reproachful, they are scandalous ; and, per- haps, the best test by which to ascertain whether the mat- ter be impertinent, is to try whether the subject of the alle- gation could be put in issue, and would be matter proper to be given in evidence between the parties. If, indeed, the plaintiff will put impertinent questions, he must take the an- swer to them, though it be impertinent ; but it will depend upon the reason of the thing, and the nature of the case, how far a general inquiry will warrant an answer leading to de- tail. The Court will always feel disposed to give the an- swer a liberal consideration, on this point of matter irrelevant, and to consider whether it can have any real and proper in fluence upon the suit, having regard to the nature of it as made by the bill. {Cooper's Treatise, 318. Mitford, 248 Peck v. Peck, Mosely, 45. St. John v. St. John, 11 Ves 526.) The case of Smith v. Reynolds, {Mosely, 69.) gives us a sample of matter, which was at the same time imperti- nent and scandalous. The plaintiff filed his bill to be re- lieved against a stale bond, and mentioned the fact of a sub- sequent bond, which he had somehow lost, and by reason of which, he was obliged to sue the defendant in chancery, and had recovered. The defendant, in his answer, said, that he did not believe that the plaintiff had lost the bond 93 106 CASES IN CHANCERY. 2gj4 last miiitioned, but believed that he had frauaulently con- ^,_^„^,,-^ cealed or destroyed it; and the chancellor, very properly, Woods held, that the defendant had denied what was not mate- Mo RE L '''^'' ^""^ ^^^^ ^^^ plainti-ff did not require him to answer; OBRELL. ^^^ ^^^^ ^^ j^^j g^^^ ^^^ ^^ ^j^g ^^^y purely to reflect on the plaintiff. I * 1 07 ] *2. With respect to the sufficiency of the answer, the gen- eral rule is, that to so much of the bill as is material and necessary for the defendant to answer', he must speak di- rectly, without evasion, and not by way of negative preg- nant. He must not answer the charges merely literally, but he must confess or traverse the substance of each charge positively, and with certainty ; and particular precise charges must be answered particularly and precisely, and not in a general manner, even though the general answer may amount to a full denial of the charges. Indeed, as Lord Eldon ob- served, the policy of the proceedings in this Court is, that a general denial is not enough ; but there must be an answer to the sifting inquiries upon the matter charged. If a fact be charged which is in the defendant's own knowledge, he must answer positively, and not to his remembrance or be- lief; and as to facts not within his knowledge, hp must an- swer as to his information or belief, and not to his informa- tion or hearsay merely, without stating his belief one way or the other. {Bohun's Cur. Can. 111. Tfyatfs P. Reg. 13, 14. 1 Har. Ch. Prac. 302, 303. Mitford, 246, 247. Coop- er's Equ. PI. 313, 314.) 3. In the application of these general principles to the exceptions before me, the task is easy, because, by applying the case to the rule, it will readily be perceived that most of the exceptions are well taken for impertinence and for insufficiency. I shall not go into particulars. The excep- tions allowed are noted, and they, for the most part, speak for themselves. Most of what was said by the defendant, Morrell, for instance, concerning the history of a voluntary •deed of trust from SacJcett, to him and others, was irrelative to the Subject matter of the bill, viz. _the fraudulent sale, and purchase under the execution ; and it is, at the same time, replete with insinuations and reflections against the plaintiff. I accordingly allpw twenty-five of the expeptions taken to the answer of Morrell, and ten of those taken to the [ * 108 ] *answer of Welter, and nineteen of those taken to the answer of Sleght. The following exceptions to the answer of George Morrell are allowed, viz. the 2d, 3d, 6th, 7th, 9th, lllh, 12th, 14th, 16th, 17th, 19th, 21st, 22d, 25th, 26th, 27th, 2Sth, S'Jth, 31st, 32d, 33d, 34th, 35th, 36th, and 37th. 94 CASES IN CHANCERY. lOS T.ie 'ollowing exceptions to the answer of Hiram Weller 1814. aie alhwed, viz. the 2d, 4th, 6th, 7th, 8th, 9th, 10th, 12th, v,<^s,-w 13th, 14th. M^'x The following exceptions to the answer of Solomon Skght ^^^^ are allowed, viz. the 1st, 2d, 3d, 4th, 7th, 8th, 9th, 10th, nth, 13th, 14th, 15th, 16th, 17th, 18th, 19th, 20th, 24th, and 25th. The question of costs is reserved. Exceptions allowed. Isabella Mix against M. P. Mix. [Distiiigiiislied, 2 Paige 457. Followed, post ♦363.] Pending a bill by a wife, for a divorce, to which the defendant had de- murred, and before a hearing on the demurrer, on the petition of the plaintiff, setting forth that she was abandoned by the defendant, and wholly destitute of all means of support, and for carrying on the suit, the Court, under the circumstances of the case, ordered an allowance of thirty dollars a month, to be paid by the defendant to the plaintiff, monthly, or to the register, for her use, until the further order of the Court. THE petitioner stated, among other things, that she was My 28* a native oi England, and, on the 9th of October, 1808, in- termarried, in that country, with the defendant, a citizen of the United States. The defendant dissipated her fortune, to the amount of more than 3,000 pounds sterling ; and they came together to the United States, in June, 1809, and re- turned again to England, in January, 1810, where the de- fendant left her, in June, 1810, destitute of the means of support, and returned to the United States. Before leaving *her, the defendant had treated her with great cruelty and [ * 1 (l9 barbarity, &c. In the summer of 1813, she followed the defendant to the United States, and in December, of that year, they cohabited together in New-York, for a few days, when he abandoned her again, refusing her all aid or sup- port. Being informed that he led a dissolute and adulterous life, she exhibited a bill of divorce, in this Court, in April, 1814, to obtain a dissolution of the marriage, on the ground of his adultery, and for general relief. The defendant ap- peared and demurred to the bill. The petitioner further stated, that she was exposed to great distress for want of support, and was totally destitute of the means necessary to carry on her suit ; that the de- 95 109 CASES IN CHANCERY. 18M. fendant is an officer in the navy of the United States, and y^^-.^~^^ receives upwards of 70 dollars a month, for his pay and Mix emoluments, and praying that he might be ordered, forth- j^^i,'^ with, to pay her 500 dollars, to enable her to prosecute her suit, &c. The facts stated in the petition, were sworn to the 20th of July, instant. Burr, for the petitioner, cited 2 Burn's Eccles. Law. 43.3 — 436. Oughton's Ordo Judiciorum, 306. tit. 206. 309. sect- 7. 2 Dickens's Rep. 498. 582. Cro. Car. 16. Rodman, contra. The Chancellor. The statute gives this Court juris- diction over divorces, a vinculo matrimonii, for adultery, and' over divorces, a mensa et thoro, for cruelty, only in the case of parties of a certain designation and description, [a) f * 110 *(2 N. R. L. 197. s. 1 and 10.) Whether this be one of those cases in which the Court is authorized to interfere and sustain the inquiry, remains yet to be ascertained. As the defendant has put in a demurrer to the bill, it would seem to be premature to make any order touching the main- tenance of the wife, founded on the main subject matter of the bill, until the demurrer is disposed ^of. Perhaps, the Court has no cognizance of the case, for the purpose of di- vorce. The bill goes for a dissolution of the marriage, on the charge of adultery, and in such cases the decree of di- vorce, under the statute, precedes a further decree or order for an allowance to the wife. But if no divorce can, or ought to be decreed, perhaps the bill may be sustained for alimony. The statute declares, " that whether the Court shall decree a separation from bed and board, or not, it may make such order and decree, for the suitable support and maintenance ■of the wife and children, or any of them, by the husband, or out of his property, as the nature of the case may re quire." The petition states a case requiring immediate re lief, as to support, and the existence of the relation of hus band and wife must be deemed to be admitted. Though it would appear, from some of the cases referred to, and par- ticularly those in Oughton and Dickens, that the Courts, after the fact of the marriage is admitted, do allow to the (ffi) The first section of the act makes it lawful, in cases where adultery is committed by husband or wife, " they being the inhabitants of this state at the time of committing such adultery, or when the marriage shall have been solemnized, or taken place within this state, and the party injured, an actual resident in this state, at the time the adultery is committed, and at the time of exhibiting the bill, to exhibit a bill for a divorce," «&c., a vinculo, &c. And the nth section provides, in the like circumstances, in case of cruelty and inhuman treatment, that a bill may be exhibited for a divorce, a mensa, &e 96 CASES IN CHANCERY. HO wife a sum for carrying on the suit, as well as for interme- 1814. diate alimony, and though I rather apprehend that this is a -,^,«i-v,/^«w^ general rule, and applies whether the wife is plaintiff or de- Wilkin fendant, in a suit with the husband, (FourneVs Traitc de -wilkin I'Adultere, 365.) yet I do not ^ink I ought to go so far in this case, when even the jurisdiction of the Court, over the question of divorce, remains unsettled. The plaintiff ought to set down her cause for hearing, upon the demurrer. I am willing, for the present, and under the circumstances of this case, to direct a monthly allowance of 30 dollars , to the plaintiff, to be computed from the 20th inst. (being the *date of the petition.) and to be paid monthly by the defend- [ * 1 1 1 ] ant, to the plaintiff herself, or to the register, or assistant register, of this Court, for her use ; and that this allowance continue until the further order of the Court. Rule accordingly. Wilkin and others against Wilkin. [Applied, 1 Edw. 270. Followed, 8 Barb. Ch. 404. See 3 Johns. Ch. 305.] If a bill, besides the usual prayer for general relief contains a prayer foi specific rfelief, the plaintiff is entitled to other specific relief, so far a. it is consistent with the case stated in the bill. The Court will not sustain a bill for a partition, where the title is denied, or isliot clearly established ; biit the bill wilhbe retained, to give the plaintiff an opportunity to establish his title at law. THIS case arose on a rehearing, against a decree of the August 29ii, late chancellor, dismissing the bill. The bill stated, that the plaintiffs are the children and. heirs at law of William Wilkin, deceased. John Wilkin their grandfather, before the 29th of July, 1752, purchased' of the widow Phillipse, and her children, a lot of land, (now in Orange county,) of about 500 acres, paid part of the purchase money, and entered into possession, but had no deed. He owed Jacobus Bruyn 200 pounds. On the 29th of July, 1562, he made his will, and among other things, devised as follows : " I do give, devise, and bequeath, unto my four sons, by name, John, George, Joseph and Jason. and to their heirs and assigns forever, all that lot of bOO acres of land, or thereabouts, and the farm whereon I live with the appurtenances, by me purchased of *widow Phil- [ * 1 12 ] lipse, and her children, and for which I have no conveyance Vol.. I. 13 97 12 CASES IN CHANCERY. 1814, from them yet ; the one half thereof to my said son John, »— «»-\^^^_^ his'heirs and assigns, and the other half thereof unto nly Wilkin said three sons, George, Joseph and Jason, their heirs and WiLKijt assigns ; nevertheless, it is my will, and I do order and di- rect, that my said four sons, John, George, Joseph and" Ja- son, shall pay for the same, to Jacobus Bruyn, the sum of two hundred pounds, with interest, &c., the one half to be paid by my said son John, and the other half by my other three sons, George, Joseph and Jason, each one equal third part thereof." The testator ' died in possession, soon after making his will, leaving William Wilkin, his eldest son and heir at law, father of the plaintiffs and James Wilkin, and the four younger sons above named. The remainder of the purchase money was paid by the executors to the widow Phillipse. and her children, who, on the 20th March, 1753, according to the desire expressed in the will, conveyed the premises to Jacobus Bruyn, in fee, in trust for the four younger sons above named, on their paying the_200 pounds due him, &c. The four sons were in possession at the date of this deed, and continued in possession, occupying in common, for sev- eral years after. In 1764, the ybwr sons, being in possession, made partition according to their rights under the will, and executed mutual releases ; and, having paid to Bruyn the 200 pounds, &c., he, on the 8th of July, 1769, conveyed to them in fee, to hold according to the will. George, one of the four sons, sold his share to one Gilles- pie, in fee. John and Joseph continued in possession until . their deaths; but whether they and Jason (the defendant)/ occupied separately, according to the partition, or in, com- mon, the plaintiffs could not say. Joseph died in October, 1773, intestate, and without issue ; and JoAw.died the 18th of September, 1775, intestate, and without issue. The eldest brother, William, father of the plaintiffs, died in No teember, 1787. F*J13J *The plaintiffs claimed, under their father, the shares of John and Joseph, under the partition, alleging that the four brothers above named were seised in common, and that they are entitled to a moiety, and a third of a moiety, of the land. The defendant refused to let them into possession of their shares, &c. or to execute releases to them, pretending that the four brothers were joint tenants, and denying the parti- tion. The plaintiffs commenced an action of ejectment, which was at issue ; but the will of their grandfather, the deed of the widow Phillipse and her children, and the deed i ' of Bruyn, and the evidence and releases respecting the par- tition, being in the possession, or control, or knowledge of the defendant, the plaintiffs could not proceed in the action , 98 CASES IN CHANCERY. 113 at law, without the aid of this Court, to compel a discovery 1614. and possession of the said deeds, and the execution of proper •\_^--v— «,-• releases, &c. And the plaintiffs prayed for a discovery ; Wilkim and that the possession of the deeds might be delivered to wilkin. them ; and that proper conveyances might be executed by the defendant; and that the plaintiffs might be relieved according to equity, and as the nature of the case might require, &c. The defendant, in his answer, admitted many of the facts stated in the bill ; but he denied that any partition was ever made, or any releases executed in pursuance thereof, ex- cept it might be as to the share of George, sold to Gillespie. He stated that the brothers lived together, and that no act > was done by them to sever the possession, and that they had not accounted together ; that the defendant and his brothers always considered the land as held in joint tenancy, and lived in uninterrupted harmony together ; th^t since the death of his brothers, he had considered the land as his own, and had made valuable improvements on it. Several witnesses were examined on both sides, and their depositions read at the rehearing, but it is deemed unneces- sary to state the evidence. *S. Jones, jun., for the plaintiffs, contended; 1. That the [ * 114 ! devise to the four sons constituted them tenants in common, and not joint tenants ; and that the shares of John and Joseph descended to the plaintiffs, as their heirs at law. Both Courts of equity and law leali in favor of tenancies in com- mon. (2 Atk. 55. 2 Bl. Com. 180. Co. Litt. 180. a. 190. b. 183. b. Litt. sect. 299. 1 Salk.211.) In joint tenancy the interests of all the tenants must be equal; if they are uweg-MaZ, it is a tenancy m common. {Cro. Eliz. 33. Co. Litt. 193. a. Com. Dig. Estate. K. 2.) Here John, most clearly, had an undivided moiety of the whole. The other moiety was, also, held by the other three sons in common. The last clause in the will directs the three to pay the one half of the debt, which was the consid- eration, each one equal third part thereof. The payment Ixiing to be made by the owners, in distinct sums, and not in one aggregate sum, showed that they were tenants in common. (1 Vem. 353. 3 AtJc. 372. 730. 734. 3 P. Wms. 158.) 2. The deed from Bmyn, of the 9th of July, 1769, gave the sons no other or different estate in the premises than they already had under the will of their father. 3. There is sufficient evidence to show a partition among the f)ur brothers. 4. If th,-ro is pot sufficient evidence, yet the Court ought 99 114 CASES IN CHANCERY. 1814 ^'^ ha\e sustained the bill, and awarded a commission fo; ,^,.^^^^ partition. (Amh. 236. Cooper's Equ. PI 134, 135.) Wilki:j Though there is no special prayer for a partition, yet, ,y ^- under the general prayer for reUef, the plaintiff is entitled to any relief consistent with the allegations in tlie bill, equally as if it were particularly asked. (^Amb. 236. 12 Ves. 48. 62, 63. 2 Aik. 3. 141.' 13 Fe«. 119, 120.) A partition may be by parol. (And. 50. Co. Litt. 250. 1 Lev. 103. 6 Co. 12.) Harison, contra, contended ; 1 . That this was a joint ten- [*]15] ancy, *at least as to the moiety held by the three sons. If it were considered a tenancy in common, and one of the three sons had died under age, the estate would have gone to the heir at law, which would have been contrary to the evident mtention of the will. 2. The three sons had a right to call on Bruyn to convey to them an estate, either in joint tenancy, or tenancy in common, as they might elect. If the deed gave a different estate from the will, it would prevail, and must be construed independently of the will. (4 Cruise's Dig. 457 — 459. tit. 32. ch. 24. s. 49,50, 51.) The habendum in the deed is, to hold according to the will ; some doubt may, therefore, exist as to the true con- struction of the deed. The intention of the parties, so far as it may be collected from their declarations, was that it was an estate in joint tenancy. 3. The joint tenancy was never severed. There is no evidence of any partition. It is true that parol evidence of a partition is good, if the possessions of the parties have gone with the partition, and been held according to it. But that is not the case here : and a joint tenancy cannot be dissolved by parol. ( Co. Litt. 187. a. 169. a.) 4. This is properly a bill for a discovery, to which the plaintiffs are entitled. But having obtained that discovery, they must go on to prosecute their suit at law. Under a prayer for geheral relief, they can obtain that relief only which is consistent with the specific relief asked. (2 Aik, 141. 3 Atk. 132. 2 Ves. 225. 1 Ves.jun. 426 13 Ves. 114. 118. 2 Atk. 325.) Where particular and general relief are prayed, the latter cannot be more extensive than the former, nor different in Its nature. 5. It does not appear that the plaintiffs are the heirs of the person last seised ; nor is there any allegation of a seisin mWilliam Wilkin. The plaintiffs cannot entitle themselves [ * 1,16 ] to partition, until their title is clearly established, *and they ought to be sent to a Court of law for that purpose 100 CASES IN CHANCERY. fifi Parties in this Court, as well as at law, must recover secun 1814. dum allegata et probata. ^_*»-s^-«w If tenants in common are entitled to favor, yet their Wilkin claim, in this instance, is destroyed by the great lapse of wiLxif time. This is a strong additional reason why the parties should be left to their legal remedies. A Court of law is the proper /orMm to try the facts, as to the partition and le- gal title, and whether the title is not barred by the statute of limitations. Riggs, in reply, insisted, that the bill ought, at any rate, to be retained ; the prayer for discovery was sufficient to prevent its jjeing dismissed. Besides, if the bill was defec- tive, the plaintiffs were entitled to have it amended. The bill ought to be supported as to the discovery, at least ; and, as an ejectment is pending, the bill should be retained, until the trial at law had ascertained whether there ought to be a partition. The seisin of one tenant in common is the seisin of all There is no evidence of an actual ouster ; nor of a disseisin of William Wilkin, the son of John. If any of the plaintiffs are entitled to relief, it is sufficient to sustain the bill. The Chancellor. This was not strictly a bill for par- tition. It was a bill for discovery and for carrying into ex- ecution a partition, charged to have been formerly made. The defendant denies the title of the plaintiffs, and denies the fact of any partition. The parties have taken testimony on this point, and the plaintiffs have failed in the proof of their allegation, that a partition was formerly made, and still more in the designation of the specific portions assigned to each of the brothers. There is no evidence on the point, on which the Court can act. It is, then, contended, that the bill is to be sustained for the purpose of awarding a commission to make partition, and that, although the spe- cific prayer, in the bill, is for the delivery of possession, and for *the execution of proper conveyances according to the [ * 1 17 ; partition charged, yet that, under the general prayer for re- lief, a partition de novo may be decreed. With respect to this point, I apprehend "the rule to be, that though the bill contain, as usual, a prayer for general relief, and, also, a prayer for specific relief, that the plaintiffs may have other specific relief, provided it be consistent with the case made by the bill. This was the rule laid down by Lord Erskine, in Hiern v. Mill, (13 Ves. 110. 120.) and it seems to be agreeable to the principle formerly assumed by Lord Hardwicke. {Grimes V. French, 2 Atk. 141. Dormer v. Fortescue, 3 Atk. 132.) There does not appear to be any objection, in this instance, 101 ,17 CASES IN CHANCERY. 1814. to the application of the rule, on the ground of surprise or v.jt>-x.-<»^' prejudice ; for one object of the bill, and of the specific Wii.KiN prayer, is partition not, indeed, a partition entirely new, Wilkin. ^^^ the complete execution of the one alleged to exist already in some imperfect degree. If, therefore, there was no ques- tion about the plaintiff's title, I think I should have no doubt about the propriety of awarding a partition ; for it would then be a relief perfectly consistent with the case made. But the title of the plaintiffs is denied, and the bill states, that the plaintiffs had conjmenced an action of ejectment at law, which was then at issue. The jurisdiction of chancery, in awarding partition, is not only well established by a long series of decisions, which are noticed by Mr. Hargrove, (iV. 23 to Lib. 3 Co. Lit.) but it has been found, by experience, to be a jurisdiction of much public convenience. (^Calmady V. Calmady, 2 Ves. jun. 570.) The Court, however, does not sustain a bill of partition, unless the title be clear ; and, in the case of The Bishop of Ely v. KenricJc, (^Bunb. 322.) the bill for partition was dismissed because the title was denied. In another case, {Cartwright v. Pultney, 2 Atk. 380.) Lord Hardwicke observed, that where there were suspicious cir- cumstances in the plaintiff's title, the Court would leave him to law ; and, from several cases, it appears to have been the [ * US ] course of the Court, when the question *of title, on a bill for partition, was in issue, to give the plaintiff a reasonable opportunity to try his title at law, and, in the mean time, to preserve the bill. {Bliman v. Brown, 2 Vern. 232. and the observation of the master of the rolls, in Parker v. Gerard, Amb. 236.) This appears to me to be the most advisable course in the present case. The questions on the title oi the plaintiffs, are strictly legal questions, as, whether the estate created by the will, and by the deed, was an estate in joint tenancy, or in common, and whether the plaintiffs are heirs of the person last seised. It may, also, be made a question at law, as has been suggested, whether the defend- ant be not protected, from the claim by the statute of lim- itations ; this last consideration renders it still more proper that the plaintiffs should first be required to establish their title at law, before they come here for a partition. I shall,: therefore, alter the decree heretofore made, for dismissing the bill with costs, and shall retain the bill, and leave the cau.se" open until after the next Circuit Court, to be appointed and held in the county of Orange, when either party will be at liberty to move in the cause for such further order or decree as the case may require; and all further questions are, in the mean time, reserved. A similar course was pursued^,' in a case mentioned in note 1. to Goodright v. Wells, {Doug'. 773.) where the master of the rolls would not decide *^ 102 CASES IN CHANCERY. HS legal question, but retained the bill for a twelvemonth to en- i814. able the plaintiff, in the mean time, to assert his right at v,_<-v^^- law. Moses Rule accordingly. mvsg1tb.otid *MosES and others against Murgatrotd and others. [ * 119 ] [s. c. post *473.] Property held in trust, does not pass to the representatives of the trus- tee ; but as long as it can be traced and distinguished, it enures to the benefit of the cestvy que trust. Where a trust is created for the benefit of a person, without his knowl- edge at the time, he may, afterwards, affirm the trust, and enforce its performance. Collateral securities to creditors are considered as trusts for the better protection of their debts, and equity will see that their intention be fulfilled. Where an assignment is, on the face of it, general, yet if it be admitted to be different in its purpose, or for a specific security, poroi evidence is admissible to show the real intent of the parties. The administrator of a mortgagor is not, as svdi, entitled to the surplus money arising from the sale of the mortgaged premises ; but it is con- sidered as pait of the real estate, and goes to the heirs, and will be assets in their hands. And where the heirs were before the Court, by their parent, it was oi'dered to be distributed, as equUMe assets, among all the creditors, pari passu. But as the creditor has a remedy at law against an equity of redemption, it is questionable whether, btfore a sale of the mortgaged premises, it could be deemed equitable assets. Assets may be partly legal, and partly equitable, and the Court will dis- criminate in the distribution of them ; following the rule of law, as to the legal assets, so as to prevent confusion in the administration of the estate ; but directing the equitaUe assets to be applied ratably among all the creditors, without preference. THE bill stated, that Samuel G. Ogden, on the 16th of August igti December, 1805, being indebted to Isaac Moses &f Sons, plaintiffs, in the sum of 12,412 dollars and 40 cents ; to Jo- seph Kauman, plaintiff, in the sum of 5,891 dollars and 34 cents ; and to Obed Smith, also plaintiff, in the sum of 2,523 dollars and 90 cents ; for goods purchased of them, and shipped on, board a ship, called the Emperor, gave to the plaintiffs, Moses ^ Sons, four promissory notes, pay- able in six months, to Samuel Murgatroyd, and endorsed by him ; to Kauman, three notes, endorsed also by Murgatroyd, payable in six, seven, and eight months ; and to Smith, one ' note, endorsed by Murgatroyd, for the amount of their re spective debts. 103 120* CASES IN CHANCERY. 1814. *To indemnify Murgatroyd, and, also, Govehieur fy Kern- v,^*.— ^,-.,_ hie, for advances and responsibilities, Ogden about the same Moses time, by deed, assigned to them so much of the coffee, ''• arising from a debt due to Ogden from the government of Hayti, as should be laden on board of the ship Jianperor, belonging to Ogden, and which was expected tp arrive at New- York from St.^ Domingo. As a special security to Murgatroyd, against his endorsements of the notes, Ogdin, on the 12th of February, 1806, executed to Murgatroyd another deed of assignment of 100,000 pounds of coffee, or other goods of the value of 20,000 dollars, on board of the Emperor, parcel of the return cargo, the proceeds of the outward cargo to Hayti. Before either of the notes became due, Ogden became insolvent, and notice of the non-payment of the notes was given to Murgatroyd, the endorser, who assured the holders that the notes should be paid out of the property so assigned to him by Ogden, as soon as the ship arrived ; and relying on this assurance, the holders forbore to commence suits on the notes. In July, 1806, the ship arrived at New-Yorlc with a valuable cargo of coffee and other goods. On the 3d of Augmt, 1806, Murgatroyd died intestate, and the de- fendant, Thomas Murgatroyd, administered on his estate. Ogden having assigned parts of the cargo to other creditors, it was agreed among all the parties conceriied, and by Thomas Murgatroyd, the administrator of Murgatroyd, deceased, to submit the rights of the respective claimants to arbitration. On the hearing before the arbitrators, Thomas Murgatroyd, the administrator, claimed to be entitled to the benefit of the security, intended by the assignments from Ogden, to the amount of the notes which he was holden to pay by reason of the endorsements of the intestate. On the 2d of October, 1806, the arbitrators made an award, directing the distribu- tion of the cargo among all the claimants, who acquiesced in the award, and received their proportions. The sum re- ceived by Thomas Murgatroyd, the administrator, amounted, ' * 121 ] *besides charges, to 19,000 dollars. While the arbitration was pending, the plaintiffs made repeated applications to Thomas Murgatroyd, for payment of the notes, and were always referred by him to the issue of the arbitration, when the notes should be paid ; and, after the award, he promised to pay the notes out of his proportion of the cargo, as soon as it was sold. One of the notes, to Moses fy Son^ was paid by the administrator, and one of the notes, to Kauman, was paid by the intestate, in his lifetime, but the other noles remain nnpaid. After the award, the administrator sold part of the cargo, but refused to pay the plaintiffs, alleging, that the intestatf 104 CASES IN CHANCERY. 121 And incurred other responsibilities for Ogden, which ought 1814. first to be secured. ^^^^-v.^-^-^ The widow of S. M., the intestate, afterwards intermarried Moses with G. Storm ; and T. M., the administrator, confessed a murgItr.jtd judgment to her, as executrix of S. Stevenson, for 57,766 dollars and 13 cents, and pleaded that judgment, and a de- ficiency of assets, in bar of the demands of the plaintiffs. The plaintiffs alleged that this judgment was confessed-, and kept on foot, per fraudem ; or, if it was not, still it ought not to be paid, as Mrs. Storm was not a creditor of Ogden, or, if she was, she had no Ken on the property. By an agreement between the plaintiffs and defendants, th6 property received by the administrator, under the as- signments of Ogden, and remaining in his hands unappro- priated, amounting to 11,500 dollars, was placed in the hands of C. Wilkes, in trust, subject to the final order and decree of the Court in this cause. The intestate, S. M., died seised of real estate of consid- erable value at Harlaem, which came to the possession of his heirs ; and which was under mortgage to one Lawrence, who filed a bill in May, 1807, to foreclose, and the property was afterwards sold by a master for 7,500 dollars, but no deed given. The administrator had applied, in April, to the surrogate, on the ground of a deficiency of personal as- sets, and obtained *an order, on the 12th of June, 1807, for [ * 122 ] the sale of the real estate of the intestate, and the proceeds to be brought into the hands of the surrogate, to be distrib- uted according to law ; but the surrogate suspended the proceeding on the order, and consented to the order of sale by the master, with a view to secure the surplus moneys arising from the mortgaged premises. The bill of the plain- tiffs called for an account, &.C., and that the inoneys arising from the sale of the cargo might be applied to the payment of the notes, and not to the payment of the intestate's debts generally ; and that the surplus proceeds of the mortgaged premises might be distributed equally, without a preference of the judgment.' T. Murgatroyd, in his answer, admitted that the notes were given and endorsed, and the protest and notice to the endorsee ; that the first assignment, by Ogden, of the 20th oi December, 1805, was a quantity of coffee, particularly des ignated, but denied that it was made specifically to secure the endorsements, or notes, but was intended as a security against all the engagements by S. M. for Ogden ; that the second assignment, of the 12th of February, 1806, did not relate to any specific liability, but was a general security, like the other, for all advances and responsibilities on ac- count of Ogden; that the only specific security given by Vol. I. 14 105 122 CASES IN CHANCERY. 1814. Ogrfen, was of the yrej^A^ of the ship, which was assigmjc ^.^,1-^^-,^ on the 4th of May, 1806, and when the ship arrived, Ogden Moses himself received the freight, and became insolvent, so that n, , \-, none of it came to the hands of S. M. or of the administra- tor. He denied that the intestate ever admitted that the assignments were specifically to secure the endorsements, or that he promised to pay the notes out of the proceeds. He admitted that Ogden made other assignments of goods expected in the ship tkiperor, to other creditors ; that the arbitrators awarded as alleged by the plaintiffs ; that he ejx- hibited the three assignments to the arbitrators, and claimed, under them, to be allowed for all the responsibilities and [ * 123 ] payments *of the intestate for Ogden, amounting to 31,276 dollars and 50 cents, including the endorsements, a note of 5,000 dollars, and a check of 5,000 dollars ; but he denied that he made any claim on account of the notes, more than for any other item. He admitted that all parties acquiesced in the award, and 'that he received under it, out of the as- signment, 16,270 dollars and 55 cents; but denied that he had promised to pay the notes out of the proceeds. He ad- mitted the payment of one of the notes to Moses, which had bepn negotiated to J. R. Livingston, but said that it was paid in expectation of receiving the freight, and not under the idea that the notes had any preference on the cargo. That he had refused to pay the notes out of the money he had received, because he had other demands against Ogden, to wit, a note dated the 14th of January, 1806, for 5,000 dollars, for advances made to him by the intestate, and a check of Ogden, dated the 10th of April, 1806, for 5,000 dollars, which was unpaid ; to satisfy which demands, he insisted he had a right first to apply the proceeds, and also to reimburse himself the sum paid to /. R. L. for the note, and also the amount of the note to Kauman; that the intes- tate, as administrator, with the will annexed, of Susannah Stevenson, appropriated to his own use the sum of 57,766 dollars and 13 cents, and for that balance the defendant confessed the judgment to Susan Storm, &c., the devisee un- der the will of Mrs. Stevenson, which was entered up the 22d of December, 1806 ; which judgment was bona fide, and had been pleaded by him, as stated in the bill ; and he de- nied that it was fraudulent, or done under the indemnifica- tion of any person whatever ; and he insisted that he was bound by law, to consider all the proceeds in his hands as assets, to be applied, in the course of administration, accord ing to the general rules of law; and that he was, therefore bound to apply all the property of the intestate, in his hands m satisfaction of that judgment. The defendant admitted, that the amount of the properly 106 CASES IN CHANCERY. 123 in the hands of C. Wilkes was 11,150 dollars and 50 tents, 1&I4. *the whole of which he claimed as assets. The defendant s.,>>->,^-«fc^ admitted the existence of the mortgage stated in the bill, Moses and the suit and sale, but said that the sale had been since MonoATRoru vacated, but for what reason he did not know. r ^ 124 ' Garret Storm, and Susan, his wife, (formerly Susan Mur- '- gatroyd, widow of the intestate,) Charles Wilkes, and Wil- liam Lawrence, put in their joint and several answers, in which the principal facts, as stated in the answer of T. Mur- gatroyd, were admitted. Samuel G. Ogden, the assignor, who was examined as a witness, stated, that all the notes given to the plaintiffs were for goods purchased of them ; and shipped in the Emperor, on the voyage to Hayti ; that before Samuel Murgatroyd, the intestate, consented to endorse the notes, the witness promised to secure him, by the assignments ; and that he made the assignment of the 12th of February, 1806, for the purpose of securing S. M. against the said endorsements ; and that, as S. M. afterwards expressed fears as to the suffi- ciency of the security, the witness, in May following, assigned to him the freight ; that the assignment made by him, on the 16th of December, 1805, had no reference to the notes, but was intended as a general security; that the note of 5,000 dollars, and the check for the like sum, were not in- cluded in the security provided by the assignments of the 12th oi February, and of May, 1806, but were intended to be secured by the one in December preceding; that, "he al- ways considered that S. M. understood, and was impressed, that the assignments of the 12th of February and 14th of May, 1806, were made specifically to secure the said endorse- ments, and no other notes." J. G. Bogart, another witness, deposed, that he applied to T. M., the administrator, to pay one of the notes, and he promised to pay it out of the proceeds of the cotton and coffee, which, he understood from T. M., were assigned to iS*. M., the intestate, to secure him against the said endorse- ments. * J. Wilkes, the notary, who demanded payment of the [ * 1 25 j notes from iS. M., testified that the intestate told him, that they would be paid on the arrival of the ship, which had leen assigned to him by Ogden, as security for his endorse- .lents. D. A. Ogden also deposed, that he understood from S. M., about the time the notes became due, that he had received from Samuel G. Ogden, as collateral security for the payment of the notes and of all responsibilities of the same nature, an assignment of property ; that T. M., the ad- ministrator, admitted to him, that the assignment of the I2tli of February, 1806, was made to secure the payment 107 125 CASES IN CHANCERY. 1814. of the notes, for which he, tS. M., had become liable for S. ^^.r-s,""-^ tr. Ogden ; and the impression of the witness was, that T. Moses M. Said he should apply the proceeds of the coffee to the MoRGATKorD Payment of the notes, to secure which the assignment was made. Harison and Hoffman, for the plaintiff's, contended, that the evidence fully established the fact that the assignment of the I2th of February, 1806, though absolute on the face of it, was given and intended only as a security for the notes due to the plaintiffs ; that it was a settled principle that a specific fund, assigned to pay a debt, should be always so applied ; and, as long as the fund could be traced, the trust must follow, and attach to it. (1 Equity Cas. Ah. 93. K. pi. 5. Bac. Ab. Obligation, (B.) 168. Kip v. Banh of New-TorTcj 10 Johns. Rep. 63.) Where a deed is, on the face of it, contrary to the intent bf the parties, it is, prima facie, fraudulent, and parol evi- dence is, therefore, admissible to show the intent ; and it was admitted, on all hands, that the assignment, though general, was intended as a specific security. In Neilson v. Blight, (1 Johns. Cas. 205.) it was decided that where a trust was created for the benefit of a person, though without his knowledge at the time, he might affirm [ ' 120 ] the trust, and enforce its execution. There could be *no doubt as to the equity of the case ; and it was equally clear, that the surplus moneys in the hands of the administrator arising out of the sale of the real estate, were equitable assets An executor, though entitled to the surplus of the persona estate, cannot take the proceeds of the real estate. An equity of redemption is equitable assets ; and on the princi- ple that equality is equity, a Court of equity will always en- deavor to make equitable assets, by disregarding all prefer- ences among the creditors. (3 Bac. Ab. 58. 1 S^llc. 79. s. 1.) This Court, then, ought to lay hold of the fund, and distribute it ratably among all the creditors. Wells and CoWen, contra, contended, that the plaintiff's had no equity, in preference to the infant children of the intes- tate. The principal object of the plaintiffs, in coming into this Court, was to set aside the judgment, on the allegation of fraud; but that allegation had been fully disproved, and the judgment shown to be bona fide. The plaintiffs seelf to alter the legal distribution of the assets in the hands of the administrator, and, on some pre- text of equity, to gain a preference over the judgment cred- itor, and against the infant children of the intestate. The administrator had a right to confess the judgmejitj and 103 C'AiSES IN CHANCERY. I'ifl thereby give a preference ; but the plaintiffs insist that there 1814. are certain liens and trusts which ought to change the legal -_^-v— ^^ destination of the property. The credit was given to the Mose3 personal responsibility of the intestate, as endorser, and to mokgItroyd Samuel G. Ogden, as maker of the notes. The plaintiffs did not look further, and further they ought not to be allowed to go. The intestate was to be indemnified, for lending his pame and money to Ogden, by the assignments. Third per- sons, not privies to an assignment made for the benefit of S. M., and now claimed for his children, ought not to take that benefit. *The note and check, which are to be refunded, will nearly [ * 127 ] absorb all the ndoney the administrator has received : and this Court can distribute only the surplus that may remain, after deducting what had been advanced by the intestate. The assignments of the 20th of December, and 12th of February, are both general; but that of the 14th of May is a specific security. The answer expressly denies that the assignment of the 12th oi February was specific. Can parol evidence be admitted to contradict, or alter the operation of that assignment ? Parol trusts are void by the statute ; and to permit parol evidence, in this case, would be against the policy of the statute, and of dangerous consequence. The answer denies all the allegations on which the plaintiffs rest their claim to the interposition of this Court. The evidence, in a great degree, confirms the answer, that the assignments of December and February were general, and intended to cover all the responsibilities of the intestate for Ogden. The assignment of the freight, in May, being intended to be spe- cific, was so expressed. Where a general assignment is given by way of security, and without any specific destination, it may be applied by the assignee to any debt or demand due to him, at his elec- tion or discretion. . Again, there is no color of equity for considering the sur- plus money in this Court, on the sale of the mortgaged prem- • ises, as equitable assets. This Court will not consider it- self as ancillary to the surrogate ; and because, by chance, the money has come into this Court, decree according to the rules of the surrogate's Court. The proceedings before him were abandoned, and the surplus ought then to be distrib- uted according to the rules of law. The Chancellok. The plaintiffs found their claim to the proceeds of the cargo, assigned by Ogden to S. Murga- troyd, on the 12th of February, 1806, as being property held by the intestate, in trust, for the payment of their notes. *It this be once conceded or ascertained, as a matter of fact, [ * 128 1 109 128 CASES IN CHANCERY. 1814. the conclusion follows, of course, that the proceeds were not >^<*-s,,-*w^ assets in the hands of Thomas Murgatroyd, the administra- Moses tor, for the general creditors of his intestate, but they existed MuBGATROTD ^^ ^^^ hands subject to the trust. The cases of Deering v. uBGAraoTD. jig^^^^gfg^^ Q g^ij^^ qg p]_ j_^ ^jjjj q( J[ip V. The Bank oj New-York, (10 Johns. Rep. 63.) show that property held in trust does not pass to the representatives of the trustee dis- charged of the trust, but, if it can be traced and distinguish- ed, it shall enure to the benefit of the cestuy que trust. The assignment to Samuel Murgatroyd was absolute on the face of it ; but it is admitted by the answer of the ad- ministrator, and supported by all the proof in the cause, that the assignment was made, and taken by him, as a se- curity or indemnity merely ; this fact being admitted, the party interested has aright to go into parol proof to explain the extent and object of the security. The admission of parol proof, to show the intent, becomes indispensable. The defendant, (the administrator,) in his answer, admits the as- signment to be different from what it purports to be. It does not, therefore, truly express the intent of the parties ; and parol evidence is, then, clearly admissible to show that intent. The deed was false on the face of it, by the admis sion in the answer, but that admission does not go to impeach the general fairness of the transaction ; the differ ence between the deed as expressed, and the deed as in tended, may have arisen from mistake, or ignorance, or ac cident ; and it becomes necessary, in order to attain justice, that the Court should let in parol proof to discover, and carry into effect the real intention of the parties in creating the security. I have no doubt, then, of the competency of the parol Droof in this case ; and the weight of that proof goes to es- tablish the fact for which the plaintiffs contend, that the as- signment was made to indemnify S. Murgatroyd against the r * ]-29] endorsement of the notes in question. This appears *froin the evidence of Ogden, who made the assignment, and who testifies that he made it for that specific purpose, and for no ■ other, and that he always considered that 5. Murgatroyd, the assignee, so understood it. This appears, also, from the testimony of /. G. Bogart, and of D. Jl. Ogden, who state, that they understood the same from the administrator, Thomas Murgatroyd ; and it further appears, from the evi- dence of Wilkes, that when he demanded payment of the notes of the intestate, he! admitted, in respect to the ship; an assignment to him, by Ogden, as security for his endorse ments. We have, then, a very full and explicit admission of the fact from all the parties concerned ; from Ogden,, wno made the assignment; from Samuel Murgatroyd, the as- 110 CASES IN CHANCERY. 1^9 signee ; and frjm Thomas Murgatroyd, his administrator, 1814. and one of the defendants. ■..^-v^*!.^ I shall then consider this fact as well made out, viz. that Moses the assignment of the 12th of February, 1806, though ab- ji^jjoIjrotd solute on the face of it, was intended, by the parties to it, to be a security only to the intestate for his endorsement of the notes in question. This being the case, the plaintiifs, as holders of the notes, are entitled to the benefit of this collat- Bral security, given by their principal debtor to his surety : and the case of Maure v. Harrison, (1 Eq. Ab. 93. K. 5. Mich. 1692.) is directly to this point. These collateral se- curities are, in fact, trusts created for«the better protection of the debt ; and it is the duty of this Court to see that they fulfil the design. And whether the plaintiffs were apprized, at the time, of the creation of this security, is not material. The trust was created for their benefit, or for the better se- curity of their debt, and when it came to their knowledge, they were entitled to affirm the trust, and to enforce its per- formance. This was the principle assumed in the case of Neilson v. Blight, (1 Johns. Cas. 205.) The plaintiffs are, accordingly, entitled to the exclusive appropriation of the 11,150 dollars and 50 cents, in the *hands of Charles Wilkes, with the interest thereon, towards * 130] the payment of their notes. The next question is, whether the surplus moneys now in this Court, and arising on the sale of the lands mortgaged to Lawrence, shall go to the administrator for distribution, where they will be absorbed by the judgment confessed,' or whether they shall be distributed under the direction of this Court, pro rata, among all the creditors, as equitable assets. The administrator is not, as such, entitled to this surplus ; it is part of the real estate, and goes to the heirs, and would be assets in their hands. The heirs appear to be infants, and their mother, Susan Storm, is before the Court in the character of a creditor, in behalf of her children, and Tiold- ing a judgment confessed by the administrator. I am in- clined to consider the moneys in question as equitable as- sets. It was held, in Plunlcet v. Penson, (2 Atlc. 290.) that the equity of redemption of a mortgage, in fee, forfeited in the lifetime of the mortgagor, was equitable and not legal assets ; and the same doctrine was held by the master of the rolls, in the case of Sir Charles Cox's creditors, (3 P. Wms. 341.) But as the creditor has a remedy at law, with us, against an equity of redemption, it might be doubted wheth- er it could be deemed equitable assets while unsold ; but after it is converted into money, under the decree of this Court, I think the money is to be treated as equitab.e assets ; for the creditor must come here for relief, as the money is 111 130 CASES IN CHANCERY, 1814. placed under the jurisdiction of the Court. In Freenoult \ >_^-N^-.^^ Dedire, {IP- Wms. 429.) it was said, that where the estate MosKs descends to the heir, it is legal assets, but if the heir sell the MuBCATKOYD. '^"*^ beforc suit, it then becomes equitable assets. The general doctrine is to encourage, as much as possible, tjie; idea of equitable assets, because equality in the payment ol debts is equity, and the rule of distribution, in chancery, is founded on principles of natural justice. Assets may he partly legal and partly equitable, and the Court will, in such [ * 131 ] case, discriminate, and direct that such as *are legal be ap- plied in a course of administration, and such as are equita- ble, be applied pari pqssu. This was done in North v. Cox, (3 P. Wrrii. 344. n. 3.) In the distribution of legal assets this Court follows the rule of law, to prevent confusion in the administration of the estate ; but whenever the assets are considered as equitable, then it is well and uniformly settled, that they are to be distributed among all the credi- tors, pro rata, without giving preference. Morris v. Bank of Ihgland, (2 Cas. temp. T. 218.) I conclude, then, that the surplus moneys now in Court are to be treated and distributed as equitable assets ; and as no objection was made to the want of proper parties before the Court, the decree must be entered accordingly ; 1. That the plaintiffs are entitled to the 11,150 dollars and 50 cents, in the hapds of' Mr. Wilkes: and, . 2. That the surplus moneys, arising upon the sale of the mortgaged premises, ought to be distrihulied as equitable as sets, ratably among all the creditors. 112 CASES IN CHANCERY. 131 1814. G Phillips against Thompson and others. Phillips [Commented on, Hoffm. 131. Explained, 4 Johns. Ch. 561: Followed, post *28-l. See' t,„„,J[' „, 103E1. as3.] IHOMPsoir declarations of a peraon, not a party in interest, nor a party to the suit, and who is a witness in the cause, are not competent evidence. 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. A contract made by an owner of land with the commissioners, under the act relative to draining the drowned lands in Orange county, (sess. 30. ch. 25.) by which they were allowed to use each bank of the river WaUkM, &c., which they might find necessary, in removing all ob- "tructions, and in deepening and widening the river, &,c., and to use, occupy, and enjoy the same, and for which they were tp pay a com- pensation to the owner for the damages, and who agreed to allow them to cut a canal through his lands, is a contract concerning an interest in lands, within the purview of the stjitute of frauds. To entitle a party to take the case out of the statute, on the ground of part *performance of the contract, he must make out, by clear and sat- [ * 132 1 isfactory proof, the existence of the contract as laid in his bill. And the act of part performance must be of the identical contract set up by him. It is not enough that the act is evidence of som^ agreement, but it must be unequivocal and satisfactory evidence of the particular agreement charged in the bill. The commissioners, under the act above mentioned, had no right to use the lands of the plaintiff, or to remove or destroy his property, with- out a valid and legal contract with him for that purpose, or until com- pensation had been made and tendered to him, according to the act. And' where a bill, filed agamst the commissioners to compel a perform- ance of a parol contract to compensate the party, could not be sus- tained, on the ground of its not being a valid contract within the stat- ute of frauds ; yet this Court retained the bill, and awarded an issue of quantum damni/katus, to assess th^ damages sustained by the plain- tifi; by the acts of the defendants, as the plaintiff had sustained an in- jury for which he ought to be compensated, and for which he had no remedy, or, at best, a doubtful and inadequate one, at law. August 29lli. THE bill, which was filed in July, 1809, stated the act of My sth, 6ih the legislature, passfed the 6th of March, 1807, entitled « an '"^^'^Zi'^ll,fu^ act to raise moneys to drain the drowned lands in the county of Orange," (sess* 30. ch. 25.) By the first section of the act, three inspectors were appointed to determine the num- ber of acres belonging to each owner of the tract of drowned lands, which, in their opinion, might be benefited in remov- ing the obstructions and straightening the river Wallkill, and the two streams which fall into it, in that tract ; and to determine the proportion that each owner should pay, per acre, of any sum of money to be raised for the purpose, and to make a roll thereof, &c. By the 4th section. John Townsend, George D. Wickfiam, Peter Toivnsend, Mosei Phillips, and William Thompson. were appointed commissioners, with full power to remove all obstructions out of the Wallkill, &c. ; to deepen, widen and Vol I. 15 113 kS:^ CASES IN CHANCERY. 1814. sti-aighten the same, &c. ; and further, to use and occupy a v_»-s^-^^ sufficient proportion of the lands adjoining each bank of the Phillips river, On which they may find it necessary to lay the rocks, Thompson, stone, earth, &c., which they may have occasion to take out of the same, &c. ; and that the commissioners, and their I * 133 ] *successors, might contract with the owners of the lands so to be used, for the damages which they might sustain by reason thereof; and in case of disagreement, the damages were to be assessed by three indifferent freeholders, to be mutually chosen for the purpose ; and if the owners should refuse or neglect to choose the appraisers, the commission- ers might apply to the Orange Court of Common Pleas, who were empowered to appoint the appraisers. By the 11th section, the commissioners, or their succes- sors, or a majority of them, if necessary, in exercise of their powers, &c., might remove or destroy any mill or mill dam, or any other erection or improvements, owned by any per- son or persons, on the said river, &.C. And that all persons sustaining damage or injury, by the exercise of the powers granted to the commissioners, &c., should receive indemiiity and compensation for such damage or injury ; the commis- sioners, &c. and the persons sustaining the damage or inju- ry, might treat and agree on the sums to be paid as compen- sation, &c. ; a!nd in case of agreement, the commissioners were directed to pay the sums agreed on out of the moneys coming into their hands under the act ; but in case of disa- greement between the parties, &c., the persons claiming com- pensation might apply to the chancellor, or one of the judges of the Supreme Court, who was directed to appoint five rep- utable and disinterested freeholders of the county, to de- termine the sum, or sums, which ought to be paid as com- pensation, &c. And it was made the duty of the commis- sioners to pay the sums, so determined on as compensation, out of any moneys coming to their hands, &c., to the per- sons entitled to such compensation ; and that until such sums should be paid, they should carry interest, and be a lien on the lands intended to be benefited by the draining afore- said, in the nature of a mortgage ; and that the said lands might be proceeded against in a Court of chancery, as mort- gaged premises, as nearly as the nature of the case would * 134 J *admit, and might be sold to raise the sum or sums to be paid. The bill further stated, that the plaintiff, at the time of passing the act, was owner of land, a dam, and mills,, on the outlet of the Wallkill; that the commissioners, named in the act, took upon themselves the burthen of their trust, and determined that the plaintiff's dam must be lowered, and a canal cut down to the same, through the lands of the plain 114 CASES IN CHANCERY. 134 Uff; that, about the 23d of May, 1807, the c ftmmissioners 1814. and the plaintiff agreed, that the plaintiff should lower his dam four feet, by the 1st of May, 1808, and should allow the (lommissioners to cut a canal through his lands, and that the commissioners should pay to him, as a compensation, &c. 6,000 dollars, and the sum of 800 dollars more, if he should lower the dam by the 1st of July, 1807 ; that, in pursuance of this agreement, the commissioners, in the course of the year 1807, cut the canal, but did not request the plaintiff to lower his dam before the 1st of July ; that he lowered it four feet, according to his agreement, in April, 1808 ; that the three inspectors appointed by the act, made an estimate of the number of acres of each owner benefited by the operation, and what sum each ought to pay for such benefit, and filed the same according to the direction of the act; that the commissioners proceeded to assess the said owners of lands, and collected large sums of moiiey, enough to pay the plaintiff the sum of 6,000 dollars, when due ; and for which sum the plaintiff has a lien on the said lands, in the nature of a mortgage ; that the defendants were elect- ed commissioners, pursuant to the act, and acted as such, in 1809, the time of filingthe bill, &c. The plaintiff prayed a discovery of the moneys collected, the names of the owners of the lands, and a description of the lands bound by the lien ; and that the defendants might be decreed to pay to the plaintiff the 6,000 dollars, &c. Two of the defendants, Jennings and Bradner, who were elected commissioners after the alleged agreement with the *plaintiff, demurred to the discovery, and answered to other '' * 1 35 ] parts of the bill, denying the original agreement; and stating that the lands were occupied without the consent of the plain- tiff; and that, in the spring of 1808, the commissioners low- ered the dam, intending to pay a compensation for all dam- ages ; and that the mills were previously burnt, &c. The defendants, Thompson and Peter Townsend, two of the original commissioners, and who continued in office, in their answer, admitted the ownership of the land by the plaintiff, &c. ; that the commissionerg determined to lower the dam, but the plaintiff denied their power to do so ; that they consented to treat with the plaintiff, and received his written propositions, by which he offered, in consideration of 6,000 dollars, to permit the canal to be cut through his lands, and lower his dam four feet by the 1st of May, 1808 ; and that if he might have the right to raise it one foot, when the water was only one foot above the dam, he would accept 4,000 dollars, or 2,500 dollars, if he might raise it three feet, and erect a new dam when the draining was completed ; and that, if he should lower his dam four feet by the 1st of 115 135 CASES IN CHANCERY. 1814. "^"^yi 1807, he should receive the further sum of 800 doUaiij ._,»->„,— ».^ That before the propositions ttere considered by the com' Phillips missioners, a majority of them had entered into a verba' •r„«Jicn« contract with Peter Toivnsend, one of the commissioners, to InUtVlraUin. n t t • ' I'll i execute a large part of the draming, which he agreed to peri form in 1 807, for the sum of 54,000 dollars ; but this work could not be done, unless the plaintiff lowered his dam four feet; and the commissioners, therefore, agreed to accept the proposal of the plaintiff to lower his dam by the 1st of July, 1807, and entered into a verbal agreement with Mm for that purpose ; and the plaintiff, in consideration of 6,800 dollars, agreed to permit the canal to be cut, and to lower his dam by the 1st of July, 1807. That this agreement was precise and positive as to the time the dam was to be low- ered, and there was no other agreement, nor any agreement as to lowering the dam by the 1st of May, 1808. That on [ * ld6 ] the suggestion of Moses * Phillips, one of the commissioners; and father of the jrfaintiff, the parties agreed to reduce the contract to writing, and Moses Phillips, for that purposOj applied to David Mason, to have the agreement in writing, and ready for execution at a meeting of the commissioners to be held in June, 1807, for that purpose. At that meet- ing, a majority of the commissioners, at the instance of W. Wickham, a large proprietor of the lands, abandoned the agreement, and changed the plan of operations. No written contract was presented to the commissioners or signed by the parties. That under the new plan of operations, Mosis Phillips, one of the commissioners, as chief superintendent, took possession of the ground, with the express or implied assent of the plaintiff, and with a mutual understanding that compensation should be made ; but they denied that any thing was done by the commissioners in pursuance, or in part performance, of the verbal agreement ; and that, if any such thing was done by Moses Phillips, it was without the assent, intent or knowledge of the rest of the commissioners. That one of the defendants, Thompson, told the plaintiff that the commissioners did not mean to adopt the agreement: that the plaintiff lowered his dam in April, 1808, but the mills, before that time, were burnt down. That the damage in taking down the dam was inconsiderable ; that the assess- ments made on the owners amounted to 26,506 dollars, all of which sum, except 8,000 dollar's, had been expended, and that the defendants had no means of collecting the 8,000 dollars, but by a sale of the lands assessed. That the ver- bal agreement, set forth by the plaintiff, is void by the statute of frauds, &c. The answer of George D. Wickham, another defendant, agreed substantially as to the facts stated in the answer of 16 CASES IN CHANCERY. I3t Thompson and Townsend, except that he dissented from 1B14. the agreement with the plaintiff and with Townsend. He -^^-n,.-^*^ denied that the commissioners took possession under the Phillips agreement; but that they took possession after the first of thompso». *July, 1807, after a failure of the plaintiff to perform, and [ * 137 ] under a mutual understanding of compensation, &c. The following is the substance of such parts of the evi- dence as it is thought material to state. A witness, Moses Phillips, (one of the commissioners,) on the part of the plaintiff, stated, that on the 24th of May, 1807, the commissioners admitted to him, that they had made the agreement as set forth by the plaintiff; and that Thompson, the president, and Peter Townsend, the secre- tary, afterwards admitted the same. Lemuel Judson, another witness, proved the confession of Peter Townsend, in May, 1807, that such an agreement had been made, and that all the commissioners, in June, admitted the same, and that Thompson, afterwards, in July or August, and in December, 1807, admitted the same thing. Moses Phillips, jun. also proved the confession of Thompson, in July, 1807, and in May, 1809, that such an agreement had been made with the plaintiff. Henry W. Phillips proved the confession of John Town- send, one of the Commissioners, in May, 1807, to the same effect. John Kinney deposed, that the commissioners admitted, in September, 1807, that the plaintiff was to lower his dam four feet the next spring. Several witnesses proved the occupation of the ground by the commissioners, the digging the canal, &c. in the autumn of 1807, and in 1808. On the part of the defendants, a witness, John Townsend, who was a commissioner, proved a verbal agreement with the plaintiff, that he was to have 6,800 dollars, if the dam was lowered by the Ist of July, 1807, and that the contract was to be reduced to writing. He also proved the contract with Peter Townsend, which was to be executed by the 1st of January, 1808, and which was also to be reduced to writing. Another witness, Jam,es Moore, proved a verbal contract *with Peter Townsend, in May, 1807, which was to be [*138] performed by the 1st of January, 1808 ; and that to effect it, it was necessary that the dam of the plaintiff should be lowered four feet. He stated, that the agreement with the plaintiff was as set forth in the answer of Thompson and Townsend, and that it was made to enable Peter Townsend to proceed in the execution of his agreement, and that both agreements were to be reduced to writing in June ; that the 117 138 CASES IN CHANCJIRY. ^314_ plaintiff confessed to him that he was bound to lower hii ■^i*— s.— ^i_' dam by the 1st of July, and that after the meeting, in June, Phillips the plaintiff said that he was not bound to lower his dam, Thompson- unless the commissioners secured to him 6,800 dollars, and said they were to pay him that sum, provided he lowered the dam by the 1st of July. The witness stated, that the contract with Townsend was abandoned at the meeting of the comrnissioners, in June. Joseph Jefferson also deposed, that he understood from the plaintiff, in the fall of 1807, that the dam was to be lowered prior to the operation of Townsend's contract ; and that the plaintiff was to receive 6,800 dollar^:. William Townsend, a witness, stated, that, at the meeting of the commissioners, in June, he heard Moses Phillips say, that he had taken great pains to have the contract with the plaintiff completed, and that he had employed D. Mason to draw it, and complained, of the impropriety of the commissioners refusing to ratify it. He understood, at that meeting, that the contracts were abandoned, in consequence of the opposition of Wickham. D. Mason deposed, that, in June, 1807, Moses Phillips and Peter Townsend requested him to take minu|tes of the contract with the plaintiff, in order to reduce it to writing ; and that he took the minutes according to their directions as ' commissioners ; that the dam was to be lowered, by the plaintiff, by the 1st of July, for 6,800 dollars. Minutes of the contract with Toivnsend were taken at the same time, and for the same purpose, and were to be executed by the [ * 139 ] *parties. The minutes were taken on the day of the meeting of the commissioners, in June ; but the contracts were not completed and furnished by him, in consequence of the advice of Wickham. The minutes taken by Mason, which were exhibited, stated the contract as set forth in the answer of the defendants. Two other witnesses stated, that, at the meeting in June, they understood that the contracts were abandoned. There was a cross bill, also, filed and pending. The cause coming on to a hearing, several preliminary motions were made by the counsel, on each side, to suppress parts of the testimony taken before the examiner as incom- petent, and, for that purpose, they entered into a laborious examination of the answers of the witnesses, on each side, to the interrogatories both direct and cross. Many parts of ' the depositions were struck out, as amounting only to hearsay evidence, or to a loose and general understanding and belief. And in the course of this discussion, it was moved, on the part of the, defendants, to suppress the whole testimony of Moses Phillips, the plaintiff's father, on the lis CASES IN CHANCERY. 13S giound of misbehavior in his answers to the 6th, 8th, and ]814. lOth cross interrogatories. ^^-n^-^^ To oppose the motion, the certificate of the examiner Phili.ii-s was read, exculpating the witness, and showing that the Thompson. defect, appearing in the answers, was not owing to the want of a full disclosure by the witness, but to the mode of taking ,J"'Serai'- me answer down, in which the examiner, in endeavoring to ior of awimesi follow the spirit of the 29th rule of June, 1806, may have iS,''^?,^"/™^';;'^',': aimed at too much brevity. The following authorities were also cited by the plaintiff's counsel, to show the practice in the case of defective answers given by witnesses, viz. Wyatt's Prac. Reg. 419. 172. 1 Sol. Guide, 275, 276. 1 Har. Prac. 489, 490. 514. 519, 520. 542. Dickens, 288. 358. 2 Ves. 106. J. Radcliff and Riggs, for the plaintiff. T. A. Emmet and Robinson, for the defendants. *The Chancelloh. The motion to suppress the depo- [ * 140 ] sition of the witness is denied, as the charge of misbehavior juiyiih. is done away ; but if it should be deemed material, hereafter, in the discussion of the merits, to have a more full and perfect answer from the witness, the Court will direct a further examination of him, on those interrogatories, either before the examiner, or in open Court. The cases cited show, that either course may be adopted, in the discretion of the Coui;t, the better to inform its conscience ; and if a further deposition be taken, it need not be published, nor a further argument had, unless the justice of the case should seem to require it. " The counsel for the defendants then raised an objection to the answer of Moses Phillips, jun., one of the plaintiff's witnesses, to the 4th direct interrogatory, because he de- tailed the declarations of Moses Phillips, one of the com- missioners under the act, but not a defendant. The Chancellor. The declarations of a person who JuiyiA. is not a party in interest, nor a party to the suit, and who ?!!L'fJ"'°"f,°l is a witness in the cause, are clearly not competent evidence ; party m inier- and that part of the deposition must be suppressed. to'tiTe'suit^MS who is a witness The counsel for the plaintiff then moved, that the answer jJ'of^^oT'e'tem of the plaintiff to the cross bill, filed on the part of the evidcnc"'"' ^" defendants, be read, on the ground that the cross suit was to be considered as brought on to a hearing concurrently with this, which, they said, was the usual and proper course ; 119 Thompson. ,4(1 CASES IN CHANCERY. 1814. and for this they cited Wyatt's Prac. Beg. 218. Coojj.Tt. s.^^f'^.y-^ Ch. PI. 87. And they also insisted, that the counsel foi Phillips the defendants having, yesterday, raised the question, as to the competency of the deposition of Peter Townsend, in the cross suit, as evidence in this suit, and taken the opinion of the chancellor, who decided that the deposition was inad- missible ; the motion to the Court, for its opinion on that question, implied that both suits were on hearing together. [ * HI ] *But the defendants' counsel denied that they had moven to bring on the cross suit to a hearing ; and insisted that without their motion, it could not be considered as before the Court. , July 8ih. ' The Chancellor. It is not material to the decision of the present question, whether the cross suit is to be deemed as regularly brought on to a hearing, or not ; for the plaintifl cannot read his own answer to the bill of discovery, in the cross suit, unless the defendants choose first to produce it in 4 plaintiff can- evidence. The plaintiff cannot testify for himself, unless a iioi read his own ^}jg instance, and on the call of the defendants; and it ' ;nis\vpr tn a. hill ' ' IS )i discovery, in for the defendants to determine, whether the answer is to be ' r™*= ="",; '" admitted as evidence in this cause or not. The motion is, i'videiice,unless , /. i • i ihc defendant therefore, denied. : honses first to (iroduce it. _ . ^ , _ i n i i ■ ■/*• /ii^y9th. In arguing on the merits, the counsel for the plaintiff entered into a minute examination of the evidence, and contended, that the contract, as stated in the bill, was fully proved ; that it had not been rescinded, and had been carried into execution on both sides ; that it was no objec- tion that the defendants had no funds in their hands, as they might be directed to collect the money according to the provisions of the act. Tliat this case could not be brought within the statute of frauds ; there was no grant, assignment, or surrender, or sale of any interest in lands. It was a mere easement. A grant of a right of way is not within the statute ; and if this agreement was within the statute, it was taken out of its operation by the part performance. The entry of the de- fendants on the ground, and digging the canal, was a part performance. They cited I SchoaJe fy Lefroy's Rep. 22. 40, 41, 42. I Vesey, 221 . Sugdm^s Law of Vendors, 71 — 85. 3 Atk. 503. Pre'c. in Ch. 560. For the defendants, it was insisted, that, if there was a valid contract, the plaintiff had a clear remedy at law, under the statute ; that no contract, as stated by the plaintiff, had been shown :; Ifee contract, in the alternative, as alleged by 120 CASES IN CHANCERY. *142 *Mni, and on which he grounds his application for relief, was peremptorily denied in the answer. There was a great and irreconcilable contradiction in the eyidence. The witnesses of the defendants were disinter- ested. Three of the defendants, in their answers, deny the contract set up by the plaintiff. If a defendant denies a fact charged in the bill, it requires two witnesses to coun- tervail his answer. So, according to the sense and spirit of the rule, if there are two defendants, each denying the same fact, it requires four witnesses to countervail, their answers. {Mortimer v. Orchard, 2 Ves. jun. 243.) The confession of one defendant, binds him only. (^Wyatt,23. 188. But see 1 Dickens, 24. 12 Vesey, 355.) The evidence of Mason and his minutes, are conclusive as to the contract. But, whatever the contract was, it was abandoned in June, 1807 ; and being in fieri, and not completed, or reduced to writing, the defendants had a right to abandon it (6 East, 602.) Again, the commissioners were bound to pursue the directions of the act, strictly. They had no authority to enter into such a contract. The act never intended, nor contemplated a personal suit or demand. There can be no 'personal decree in this case. A decree under an illegal contract will not bind the land, which was ultimately to pay, and this Court cannot force an assessment on the land. Again, the case is within the statute of frauds. (Roh. on Frauds, 126. advertis. p. Hi 6 East, 602.) The answer peremptorily denies the agreement and it is not competent to prove the agreement aliunde. (6 Vesey, 12. 2 Bro. Ch. Cas. 559. Dickens, 664.) No part perform- ance will be sufficient, unless that part performance was in pursuance to the contract, and was such, that the non-ful- filment of vhe contract would be a fraud. (1 Bro. Ch. Cai. 480. Mtford Arg. Loft, 808, 809. 7 Vesey, 341. 1 Vesey. 221. 2 Bro. Ch. Cas. 563. 3 Atk. A. *Ambl. 586. 2 Bro. Ch. Cas. 561. 566. Arguendo. Sugden's Law of Vend. 83, 84., (3d ed.) 1 Schoale If Lefroy, 41.) Part of the contract was clearly within the statute, even if the agreement as to lowering the dam was not. If a contract is void in part, by the statute, it is void in toto. (Anst. 420. 525. 7 Term Rep. 281. Sugden's Law of Vendors, 64.) The cause stood over for decision, on the merits, to this day. The Chancellor. The object of this suit is to obtain a JiscpVery of the funds under the control of the defendants, as commissioners, and to compel them to perform, on their part, the parol contract set forth in the bill. The contract Vol. I. 16 121 1814. Phillips V. Thompson [ * 1 13 Ausvsi 29ti Phompson. 143 CASES IN CHANCERY. 1814. is denied in the answers, and the statute of frauds is al^o ^_^-.^^.,^ insisted on, and much testimony has been taken on each Phillips side, in respect to the contract, and to its part performance. 1. The first question that naturally arises upon the case is, whether the contract, as charged, was a " contract or sale of lands, tenements, or hereditaments, or any interest in, or concerning them," within the 4th section of the English, or the 11th section of our statute of frauds, (sess. 10. ch. 44.) The commissioners, under the apt stated in the case, (sess. 30. c. 25.) were authorized " to remove any obstructions, dam, or erection, mill or improvement, in or across the Wallkill, at the outlet of the drowned lands, and to use and occupy a sufficient proportion of lands adjoining eacfi bank of the river, on which they might find it necessary to lay the rocks, stone, earth, gravel, or other substance, which they might have any occasion to take out of the same; and to take, use, occupy, and enjoy the same, for the pur- poses aforesaid, and to contract with the owner for the damages," &c. Under this authority the contract is alleged to have been made, and possession of the lands of the [ * 1 44 ] *plaintiff taken ; and I think it must be considered as a contract concerning an interest in lands, within the purview of the statute of frauds. I lay it down preliminarily, as a clear principle, that the commissioners had no legal right to u&e and enjoy the lands of the plaintiff", or to remove or destroy his property, with- out a contract with him, and his assent for that purpose, or until compensation had been made or tendered, as the act provided. The latter was not done, and, therefore, a valid contract was necessary to give them the right. The statute, under which the commissioners acted, men- tions that they were " to contract," or to treat and agree, " with the owner, for the damages or compensation, and to pay the amount." The nature and form of the contract is not defined in the act, and it must be understood to mean a contract valid by the existing laws of the land. The statute, most certainly, did not intend any unnecessary interference with established principles. The owner must be a pefson of competent age and ability to contract, and the contract, to be binding, must have the requisite form and substance. It must be subject to the same rules and construction as all other contracts of the same nature. Thus it has been decided, (Simonds v. Catlin, 2 Caines, 61.) that when a statute authorizes a sale of lands, it means a sale with the customary solemnities, and by deed or note, in writing, according to the direction of the statute of frauds. , It was said that the right granted to the commissioners, bv the contract charged, was an easement only, and not 122 CASES IN CHANCERY. »44 svithin the act. I have looked into, the books; and with ]814. respect to a right of entry on land for a temporary and ^^--v--^»^ special purpose, and which is sometimes treated as an ease- Phillips ment, there are very subtle distinctions, and much apparent TuoMrsoK. contradiction in the cases. Thus, a sale of timber growing, or of potatoes in the ground, and which had done growing, has been held to be a sale not within the statute of frauds. {Anon. 1 Lord. Raym. 182. Parker v. Stanilard, 11 East, 362 ) But a *sale of grass growing, or of turnips growing, [ * 145 ] was the sale of an interest within the act. [Crosby v. Wadsworth, 6 East, 609. Emmerson v. Heelis, 2 Taunton, 38.) In one case in the K. B., rather imperfectly reported, (J¥ood V. Lake, Sayer, 3.) it was held, that a parol agree- ment for liberty to stack coals on land for seven years, was but an easement, and not an interest, and so not within the statute. I mean not to meddle with the above cases, except so far as to observe, upon the last, which has some bearing upon this, that it is justly liable to all the observations against its authority, made by Mr. Sugden, {Law of Vendors, 3d Lond. ed. 56.) and that the agreement, thereby stated, seems to have been equally within the words, and within the mischief of the act. The contract, in this case, -elated to an interest to be acquired in the land itself, and o such a possession, for the limited purpose, as would en'itle the commissioners to an action of trespass or ejectment for any injury or interruption to the possession. They wer( lo have the use and enjoyment of the land. Unless the contract reached to an interest in the soil, the objects ol ''he act could not be answered, and would be exposed, at aJ times, to be defeated. The privilege of erecting a mill dam on the bank of a creek, was held, in the case of Jackson v. Buel, (9 Johns. Rep. 298.) to be an interest for which an ejectment would lie, because an interest was given in the soil, not only for erecting the dam, but for possessing it. So, a contract for the sale, and delivery of possession, has been held to carry with it an interest in the land, and to ' come within the statute. (Howard v. Easton,'! Johns. Rep. 205.) With respect to the word tenement, it has been held to reach not only to. corporeal inheritances, but to rights annexed to, and to be enjoyed as part of the inher- ;ance ; such as rents, tolls, estovers, commons, piscary, &c., or these all savor of the realty. {Co. Litt. 200.) If we resort to either branch of the clause of the statute of frauds, the contract seems to be within it. The use of the outlet of the Wallkill, and its *banks, for the purposes declared, [ * 146 : and the enjoyment of that use, by the commissioners and their successors, was to be as permanent as the improvements intended. The provision was for a public and lasting object, 123 146 CASES IN CHANCERY. 1814. ^^^ if the outlet was not kept clear and unobstructed, the ._<»-^,^— *_^ lands to be improved might again be overflowed. PHiLLfts 2. But the plaintiff alleges a part performance of the Thompson. Contract, to take the ease out of the statute. The an- swers deny the agreement, and any part performance in pursuance of it. This has led the parties into much parol pi oof; and unless the plaintiff has clearly established the contract, as charged, and also a part performance of the same contract, he has not entitled himself to the relief sought. The proof of the existence of this contract, as charged in the bill, consists of the depositions of Mosses FhilUpsi^ father of the plaintiff, and one of the original commissioners, of Moses Phillips, jun., Lemuel Judson, Henry W. Phillips and John Kinney, who all prove various confessions of the different commissioners, with whom the plaintiff contracted, of the making of the contract as charged. On the other hand, there are the answers of the defendants, denying any such contract, and the depositions of John Townsend, James Moore and Joseph Jefferson, proving a different contract, and one conformable to that alleged in the answers, and which was to be reduced to writing. There are, also, on the part of the defendants, the depositions of William Town- send and David Mason, proving the application of Moses Phillips, in behalf of the plaintiff, to David Mason, to take minutes of the contract with the plaintiff, and to reduce it to writing, to be executed, by the parties respectively, at the meeting of the commissioners in June, 1807. The minutes so taken by Mason are an exhibit in the cause, and they re- late to a contract as set forth in the answer, and do not ap ply to the contract charged in the bill. The testimony, as ' * 147 ] it respects the quantity of the proqf on each side, *may be considered as nearly balanced ; but there are intrinsic cir- cumstances arising out of the nature of the testimony, which inclines the balance in favor of the defendants. The answers of the defendants, who Were the original contracting parties, and who were selected by the legislature, for their judgment and character, to execute this public trust as commission- ers, who have no personal interest in the quefstion, and vcho must be presumed to have full knowledge of the contract intended to be made by them, are entitled to, and cannot but receive, very great consideration, in estimating the rela- tive weight and credit of testimony. The original mmutes of Mason, the attorney, taken down at the time, from the mouth of Moses Phillips, the father and agent of the plain- tiff, for the express purpose of reducing the contract to writ' ing, and preparing it for execution, ought to have a more preponderating influence than the fallacious memory of wiC- !24 CASES IN CHANCERY. HI nesses speaking several years afterwards; Written proof, of 1814. that kind, always outweighs parol proof, in judgment of law, o«-«-^-^^ as well as by its power to produce conviction. Philups The plaintiff has, accordingly, failed in making out, by xhompsof. clear and satisfactory proof, the existence of the contract as laid. The evidence on the part of the plaintiff, in support of the allegation of part performance of his contract, as charged in his bill, consists, principally, of the testimony of John Kinney, Gabriel N. Phillips, John Bdsuin and Thomas Waters, proving that the commissioners entered on the land, and conunenced the canal, in the autumn of 1807, and con- tinued working at it in the year ensuing. The defendants admit this fact, and, also, that the plaintiff lowered his dam four feet in April, 1808 ; but they say that the entry and occupation of the land was made with the express or implied assent of the plaintiff, and under a mutual understanding that a compensation was to be made, but not the specific compensation now claimed. There is, likewise, proof, that- at the meeting, in June, the commissioners refused to exe-^ cute the contract *set forth in the answers, and, consequent- [ " 1 48 ] ly, that no contract was signed ; there are, also, other facts in proof, from which we are necessarily led to infer, that this refusal must have been known at the time to the plaintiff As the contract, whatever it was, rested in parol, and had not been consummated, nor any act done under it, the com- missioners clearly had a right to avail themselves of the locus penitentia, and reject it. It does not follow, then, as a neces- sary consequence, that the subsequent entry of the com- missioners, in the autumn of that year, was in pursuance of the contract charged, nor is it to be reasonably presumed, after that refusal, provided any other good reason can be as- signed for that entry. The real motive is obvious, indepen- dent of the contract ; it was in pursuance of their public trust, and to carry their powers into effect. The 11th sec- tion of the act seems evidently to contemplate an entry and exercise of power, being previous to the settlement of com- pensation ; and the 4th section is far from being very clear and explicit on that point. Though I consider it to be a fundamental principle of law, and of good government, that private property cannot be taken away for public purposes, without just compensation, and that, until that is made, the party aggrieved would be entitled to his legal remedy ; yet it was very natural that the commissioners should consider the provisions of the act as sufficient for their entry, in the first instance, and that it was safe, or expedient, to leave the question of compensation as a subject of future arrangement with the plaintiff, either by agreement, or by assessment under 12D 148 CASES IN CHANCERY. 1814. the qct. The grounds upon which the entry was made, as ..^^-^.^^-^^ stated by the commissioners in their answer, appear to me Phillips to be extremely probable. The entry was, at least, no very ^ ^- decisive and unequivocal evidence of a part performance of the identical contract set up by the plaintiii. It was cer- tainly not such an act done, to use Lord HardwicJce's words, "as could be done with no other view or design than to per- form the agreement." It would be extravagant to maintain I * 149 ] this, when we consider the *authority and objects of the trust under which the commissioners acted. It is not sufficient that the entry and use of the land is evidence of some agreement.' It must be satisfactory evi- dence of the particular agreement charged, or it will not take the case out of the statute. It is well settled, that if a party sets up part performance, to take a parol agreement out of the statute, he must show acts unequivocally referring to, and resulting from, that agreement; such as the party would not have done, unless on account of that very agreement, and with a direct view to its performance ; and the agreement set up must appear to be the same with the one partly performed. There must be no equivocation or uncertainty in the case. The ground of the interference of the Court is not simply that there is proof of the existence of a parol agreement, but that there is fraud in resisting the completion of an agreement partly performed. These principles have been recognized in a se- ries of decisions. Lacon v. Mertins, 3 AtJc. 4. Gunter v. Halsey, Amh. 586. Niven v. Belknap, 2 Johns. Hep. 587. Frame v. Dawson, 14 Ves. 386. Clinan v. Coolce, I Schoak Sf Lefroy, 41. Lindsay v. Lynch, 2 Schoale ^ Lefroy, 1.) These adjudications will fully justify me, by their strong and pointed application to this case, in denying to the plaintiff the execution of the agreement contained in his bill. He has failed in satisfactory proof of his agreement; he fails, also, in showing such acts of performance as are necessarily to be imputed to that agreement, and cannot reasonably be imputed to any other cause. This case, like many others, shows the utility of the statute of frauds, and the danger of relaxing the sanction of its pro- visions. I agree with those wise and learned judges, who have declared that the Courts ought to make a stand against any further encroachment upon the statute, and not to go one step beyond the rules and precedents already established. 3. -But here arises another and serious question, whether [ * 150 ] *the bill ought to be dismissed. It is certain that the plain- tiff has sustained injury by the act of the commissioners, and is entitled to compensation ; and the defendants admit, that they entered upon his land and dug the canal, under his ex 126 CASES IN CHANCERY. 150 press or impRed assent, and with a mutual understanding that iei4 compensation should be made. How is the p.aintiff, then, >^^-s^-.*^ to obtain compensation ? He cannot, perhaps, for the low- Phillips ering of his dam, in the mode provided by the Uth section, thommos. for it was his own voluntary act, not that of the commission- ers ; and he might meet with insuperable difficulties in an action of trespass at law, for entering to cut the canal, as the entry appears to have been with his assent, and seven years have elapsed since it was made. This case, then, presents peculiar and strong claims for the interference of this Court, in securing to the plaintiff a due and adequate compensation. In Clifford v. Brooke, (13 Ves. 131.) the bill could not be. sustained on the ground of fraud or mistake, and the relief prayed for was in the nature of damages. The chancellor observed, that if, in dismissing the bill, he were to exclude the ■plaintiff from all remedy, he should ■pause upon the decis- ion ; but he concluded that the plaintiff might bring an ac- tion at law for his damages. I have no doubt of the juris- diction of this Court over this case, and that it can cause the damages to be assessed, either by a reference to a master to in- quire into, and report them, or by an issue of quantum dam- nificatus. The case of Denton v. Stewart, before Lord Ken- yon, when master of the rolls, was to this effect. (1 Fonb. 3S. n. y. and 165. n. b. and 1 Ves. jun. 329.) That case was, afterwards, approved and followed by Sir William ■ Grant, in Greenaway v. Adams, (12 Ves. 395.) In both those cases, which were bills for specific performance, the defendant had put it out of his power to perform the con- tract, and the Court retained the bills, and referred it to a master to assess the plaintiffs damages. This appears to me to be a case under similar circumstances, and as proper • as any that can arise for the Application of the principle of [ * ^51 ^ those decisions. Justice demands that the plaintiff should have relief, and I am apprehensive he would be remediless without the aid of this Court. The cases are numerous in which the Court of Chancery has caused damages to be as- sessed, either by an issue or by a master, at its discretion. (2 Fonb. 441. Hedges v. Everard, 1 Eq. Cas. Ahr. 18. pi. 7. Cuid v. Rutier, 1 F. Wms. 570. Errington v. Aynesly, 2 Bro. 341.) I believe the more usual course, where the damages are not a matter of mere computation, is by awarding an issue, and, under the circumstances of this case, I deem it the more advisable method. I shall, accordingly, retain the bill, and award an issue of quantum damnificatus, to assess the damages which the plain- tiff has sustained by the entry and acts of the commissioners, and by his own act in lowering his dam, which was a conse- quence of their directions ; that the issue be tried at the 127 151 CASES IN CHANCERY. 1S14 Orange circuit, and that all further questions be reserved ,.,^-.^^,•1,,^ until the return of the postea on such issue. Phii.ups After the damages are assessed, I apprehend no difficulty V. in finding means to enforce payment. It is made the duty HOMPsoK. ^^ .^1^^ commissioners to assess and pay the damages to be sustained. It is part of their trust, and the sum becomes a lien on the lands that are to contribute. — The following decree was, thereupon, entered : " That the plaintiff ought to receive, from the defendants in this suit, or their successors in office, the damages sustain- ed by, and compensation due to, him, by reason of lowering his mill dam across the Wallkill, in the bill mentioned, a< the time the same was done ; and, also, by reason of the defendants, their predecessors, or successors in office, enter ing upon, using and occupying the lands of the plaintiff, for digging a canal, and otherwise, as the same may have been used for the purpose of draining, or to facihtate and assist in draining, the drowned lands, in the pleadings mentioned. But, inasmuch as it does not satisfactorily appear to the [ * 152 ] *Court, that any agreement has been made by and between the parties, as to thb amount of such damages and compen- sation, to the end, that the same may be satisfactorily ascer- tained, it is further ordered, adjudged and decreed, that au issue be made up between the parties, to ascertain, by the verdict of a jury of the county of Orange^ the amount of such damages and compensation ; that the said issue be tried at the next, or any subsequent circuit in the said county : that, for the purpose of forming a proper issue for the as- sessment of the damages and compensation, to which the plaintiff is declared to be entitled as aforesaid, the plaintiff shall declare, in assumpsit, that the defendants promised to pay him as much as he reasonably deserved to have for his said damages and compensation, or to that effect; and to which declaration, the plea shall be non assumpsit; on the trial, the plaintiff shall not set up any agreement between him and the defendants, or their predecessors in office, as to the amount of damages and compensation ; and the defend ants shall admit their assumption to pay the plaintiff so much as he reasonably deserved to have as damages and compen- sation, for lowering his mill dam, by the defendants' request, and for their accommodation, as commissioners for draining the drowned lands, and for the defendants, or their prede- cessors, or successors in office, entering upon, using and oc- cupying the lands of the plaintiff, as aforesaid ; and the jury are to allow, in their assessment of damages, interest upon the amount of the damages they may find, for such damages and compensation, from the times when the several acts were done, for which the plaintiff is declared to be entitled 128 CASES IN CHANCERY. 153 to damages and compensation as aforesaid, to the time of 1814. rendering th(S verdict ; and that all further directions be re- v^,*-s,.-i»_/ served until the said issue shall be tried, and the postea re- Morrell turned to this Court' Dicket. *MoRiiELL and others against Dickey. [ * 153 ] [Followed, 67 How. 209, 813; 1 Edw-. 189; 7 Johns. CH. 47.] S. being about to sail on a voyage to the Wesl-Indies, where he after- wards died, addressed a letter to M., containing the following clause : " A thousand accidents may occur to me, which might deprive my sisters of that protection which it would be my study to afford ; arid, in that event, I must beg that you will attend to putting them in pos- session of two thirds of what I may be worth, ap])ropriating one third to Miss C. and her child, in any manner that may appear most prop- er." This was held to be a valid will, especially after 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. Courts, in this state, do not take notice of letters testamentary, or letters of administration, granted abroad, or out of the state.. Nor can a per- son appointed a guardian to an infant, in another state, be entitled to receive from the administrator, here, the legacy or portion of the infant. The guardian must be appointed here, and give competent security, to be approved of by this Court, before the payment of the infant's money will be ordered. On a bill, by a legatee, whei-e the defendant submitted to, and asked the direction of the Court, his costs were ordered to be paid out of the fund. WILLIAM L SWAN, of Charleston, S. C, being about August zm to sail, as supercargo, on a voyage to the West Indies, wrote a letter, dated Netv-Yorlc, August 31,1810, addressed to John Magrath, which, among other things, contained the follow- ing clause : " My dear friend, a thousand accidents may oc- cur to me, which might deprive my sisters of that protection which it would be my study to afford; and, in that event, I must beg' that you will attend to putting them in possession of two thirds of what I may be worth, appropriating the re- maining part to Miss C****, and her child, in any manner that may appear most proper." Swan arrived at the Ha- vana, and was there taken sick, and died, in the autumn of 1810, unmarried, and without lawful issue, leaving personal Vol. I. 17 129 153 CASES IN CHANCERY. 1814. property to the value of about 8,000 dollars, over and above ■wi*— v^-^^ all debts, &c. ; part of which had been collected, *and had MoRRELL come into the hands of the defendant, a citizen of New- Yorlk DicKET. Magrath, to whom the testamentary letter was addressed, r * 154 1 declined the executorship, and refused to take out adminis- tration on the estate of Swan. In consequence of which, the defendant, on producing the letter of Swan to the sur- rogate of the city and county of New- York, before whom it was fully proved as the last will of Swan, on the 21st of June, 1813, letters of administration, with the will annexed, were granted to the defendant, of the personal estate of Swan in this state. Miss C. having afterwards intermarried with Morrell, and residing in Philadelphia, with her son, Willimn, she, with her husband, and her infant son, by S.', as his next friend, filed their bill, in this Court, against the defendant. The bill further stated, that the sum of 1 ,634 dollars and 38 cents, part of the personal property of W. t. Swan, deceased, had come to the hands of the defendant, as administrator; that Barbara Morrell, one of the plaintiffs, had been appointed by the Orphan^ s Court oi Philadelphia, guardian to her said infant son. That she and her son were each entitled to receive their moiety of the one third of the money in the hand^ of the defendant, on giving security, by bond or otherwise, to the administrator, as required by the laws of this state ; that they had offered such security to the defendant ; but the defend- ant objected, that he was advised that the appointment of Mrs. M. by the Orphan's Court o( Philadelphia, as guardian to her infant son, was of no force or validity in this state, and that he could not; therefore, safely pay over the infant's share to his mother, or any othet- person, without the special order and direction of the Court ; that the plaintiffs, if the Court thought it necessary, were willing to become guardians to the infant, according to the rules of this Court, and prayed to be appointed guardians, on giving the requi- l • 1 55 " site security ; that the defendant had, also, *objected to pay- ing any definite proportions of the property to Mrs. M., or her' son, because the share of eacti, by the said will, was in- definite ; and that although Magrath had a discretionary power to allot their separate proportions, the defendant, as administrator, had no such discretion The defendant, in his answer, admitted the facts staled in the bill, and submitted himself to the order and direction of the Court. The cause was submitted, by consent, to the Court, on the bill and answer. 130 CASES IN CHANCERY. I5a Mel'Mlf, for the plaintiffs. 1S14. Emmit, for the defendant. Morkell DiCKET. The Chancellor. This is an amicable suit, bj the p^iiitiffs, as legatees, in and by the last will of William I. Swan, deceased, against the defendant, as administrator with the w?H annexed, and the case is submitted upon bill and answer 1. The first point is as to the right of the plaintiffs (the mother and son) to the legacy, and the extent of that right. The will was in the form of a letter addressed to John Ma- grath, at the time when the testator was setting out on a voy- age from New- York to the West-Indies, where he died ; and it contained the following clause : " A thousand accidents may occur to me, which might deprive my sisters of that protection which it would be my study to afford ; and, in that event, I must beg that you will attend to putting them in possession of two thirds of what I may be worth, appro- priating the remaining third to Miss C******, and her child, in any manner that may appear njost proper." It is admit- ted that the two plaintiffs, Barbara and William, are the mother and child alluded to in the will. There is no doubt that the paper must be received and treated as a will, and that the plaintiffs are each entitled to an undivided *moiety of [ * 156 ] one third of all the estate of the testator. This, indeed, seems to be a point conceded by the case ; and the probate of the paper as a will, by the surrogate of New- York, is conclusive ; it being the judicial act of a competent Court. (3 Term Rep. 125. 1 Vesey, 287. 2 Atk. 324.) 2. Admitting the right, the next point is, whether the plaintiff, Barbara, has entitled herself to the portion of her infant son, as she has not been appointed guardian, nor given security, under the authority of this state, but applies as guardian appointed by the Orphan's Court of Philadelphia. It is well settled\ that wd cannot take notice of letters testa- mentary, or of administration, granted abroad, and that they give no authority to sue here. This is not only the law in England, but it has been very generally adopted in this country. ( Tourton v. Flower, 3 P- Wms. 369. Lee v. Bank of England, 8 Ves. 44. Goodwin v. Jones, 3 Tyng's Rep. 514. Riley v. Riley, 3 Day's Rep. 74. Fenwick v. Ad- ministrators of Sears, 1 Cranch, 259.) This case is within the reason of that rule ; and the security taken in the Or- phan's Court of Philadelphia may not be adequate to reach the property lying within this state. This Court must judge, itself, of the security, before it directs the payment of the infant's money. The defendant would not be justified in 131 156 CASES IN CHANCERY. 1814. Daying the infant's money to the plaintiff, on the ground thai '.^^--v^.w^ she was the mother of the legatee. I had occasion, lately, MoRKELL to consider this point, in the case of Genet v. TaUmadge.-f It Dickey. '* ^'^'x ^^ ^^'^ character of guardian, duly appointed here, I ^„te^ p. 3. upon requisite security, that she can entitle herself to receive the legacy of her son. My opinion, accordingly, is, that she is entitled, in her own right, to a moiety of the third of the testator's estate, and that the defendant, after deducting his taxable costs oj this suit out of the one third of the sum of 1,614 dollars and 38 cents, admitted to have been received by him, be decreed to pay a moiety of the residue thereof to the plaintiff, Bar- bara, As the defendant is not in default, and has only [ * 157 ] *sought the direction of this Court in a case proper for it, he ought to receive costs out of the fund ; («) and this is the course of the Court in such cases. ( Whojjham v. fVingfieldi, 4 Ves. 630.) As to the remaining moiety of the third, bar longing to the child, that must be paid into Court, to the register, or assistant register, to abide the order of the Court ; and when the plaintiff, Barbara, is appointed guardian here, and gives the competent security, the money will be paid over to her. Decree accordingly. (a) Vide amU, 45, TmbtU v. Tabdt 132 CASES IN CHANCERY. 15 1814. Fr,\nklin and others againsfW.l. and S. Robinsois The plaintiff and defendant were joint owners of a ship and cargo, on a voyage from JS/ew-York to Batavia, and back; 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 dollars, "out of the proceeds of any cargo the ship may bring from Batavia, or to deliver him part of such cargo, to that amount, at the cuiTent market price, on its arrival at JVcuj-rorfe,at his option." The ship, on her return voyage, from necessity, put into St. Kills, where the vessel was condemned as un- sea worthy, and sold with the cargo, and the proceeds remitted, by the supercargo, to JVeto-Forfc. The defendant having caused 8,000 doUai-s of the sum stipulated to be paid to him by the agreement, to be insured, as his commissions, he recovered the amount, in a suit at law, of the underwriters, as for a total loss, on the ground that he had no remedy on the agreement against the plaintiff, his compensation being payable only out of a particular fund, which depended 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 management of the concern ; and it was held, that the defendant was not entitled to any allowance, on a qv/mtum meruit for his ser- vices, merely on the ground that the contingency had never happened on which his specific compensation, for the same service, was to de- pend ; nor was he entitled to any compensation for his services at St. Kitts, as he still acted in character of supercargo, and the sales there were substituted *for a sale in JVew- York, on which,by his special agree- ment, he was to receive no commission. Joint owners, or partners, are not entitled to charge each other for services rendered in the care and management of the joint property, unless there is a special agree- ment for that purpose. [*158J THE plaintiffs were joint owners, with the defendants, of August Z9ui. the ship Mary, and her cargo, on a voyage from New-York to Batavia, and back. TV. I. Robinson, one of the defend- ants, who were partners in trade, engaged to go out in the ship as supercargo, and an agreement was, thereupon, madC' and executed between the parties interested, as follows: " We, the subscribers, owners of the ship Mary, having eiigaged William I. Robinson, as supercargo, on her intended voyage from here to Batavia, and possibly to Canton, have agreed, in consideration of his undertaking and executing the duties of his trust, to pay him 10,000 dollars, out of the proceeds of any cargo the ship may bring from Batavia, or to deliver him part of such cargo, to that amount, at the current mar- ket price, on arrival here, at his , option. But if the ship should proceed to Canton, and the letter of credit, with which he will be furnished, should be availing, we, in that case, agree to pay him 1 2,500 dollars, as above, otherwise, he is to receive no more than 10,000 dollars, the same as if the voyage out hal terminated at Batavia. New-York, 21st 133 158 CASES IN CHANCERY. 1814. of March, 1798." Signed by the owners, and by the de >.^*-x^-i^_/ fendants. On this agreement were the following endorse* FKAKKtm ments : — " I agree to undertake the management of the (J "■ business committed to my care, as within, on the terms specified. W. I. Robinson." " We agree, in consideration of the sum to be paid Wil- liam, I. Robinson, as herein specified, to take upon ourselves the trouble of the management and sale of the return cargo from Batavia or Canton, free of commission, subject to the , direction of a majority of the owners of the ship Mary. Wm. &/■ S. Robinson." Before proceeding on the voyage, William I. Robimon procured insurance, to the amount of 8,000 dollars, on the [ * l.'>9 ] commissions *stipulated to be paid to him by the above agree- ment, and, afterwards, recovered the amount of the sum so insured against the insurers. He proceeded on the voyage described, and arrived at Batavia, where a return cargo was purchased, with which the vessel set sail for New-York; and during her voyage back, was compelled, by stress of weather, to put into St. Kitts, where, on a survey, the ship was found unseaworthy, and condemned ; and the laws of the island prohibiting the reshipment of the cargo in another vessel, it was sold there, under the direction of William I. Robinson, by merchants, who were paid a regular commission on the sale, and he re- ceived and remitted part of the proceeds to the defendants, who, afterwards, received other parts of the proceeds. The vessel was also sold at St. Kitts, and purchased in by Wil- liam I. Robinson, for the account of the owners ; and she was, afterwards, repaired, and brought to Neiv-York, and there sold, and the money received by the defendants. The plaintiffs demanded of the defendants an account of the pro- ceeds of the vessel and cargo, and a payment of the respec- tive proportions to which they were entitled ; but the defend- ants have refused to account and pay to the plaintiffs the proportions demanded, alleging their right to retain the sura of 10,000 dollars, the compensation agreed to be paid to Wil- liam I. Robinson, according to the contract above mentioned. The plaintiffs insisted, that this compensation was to be paid only on the event of the arrival of the vessel with the return cargo frorp Batavia to New- York ; and that event having never happened, William I. Robinsonwas not entitled to that, nor any other sum ; and, moreover, that he had re- covered for a total loss, on the policy of insurance on the commissions specified in the contract. The bill prayed for an account ; and the payment of the proportions of the ves- sel and cargo, to which the olaintiffs were entitled ; and fof relief. 134 CASES IN CHANCERY. *16C' *The defendants, in their answer, admitted that the cargo 1814. was sold by merchants at St. Kitts, under the directions, and with the assistance of William I. Robinson; but they denied that the usual and customary commissions on such occasions were allowed or paid to the merchants. The dt^fendants alleged, that William I. Robinson advised the plaintiffs, by letter, of the situation of the vessel and cargo at St. Kitts and staid there,. for the purpose of effect- ing- a sale of the property, collecting and securing the pro- ceeds, and acting for the interests of the concerned, as cir- cumstances might require. That the vessel was sold for 4,700 dollars, and purchased by William I. Robinson, for the benefit of the owners, and he churged on that sum the ordi- nary commission of 5 per cent. That it being impractica- ble to sell the cargo, without taldng bills of exchange on London, he employed factors, who guarantied the payment of the bills for 2J per cent. That the usual commission at St. Kitts was 5 per cent, on sales, and 7^ per cent, with a guar- anty of the debts. And the defendants claim the 5 per cent., for the agency of William I. Robinson, in the sale of the cargo. The proceeds of the sales of cargo anjounted to 164,447 dollars, of which 28,112 dollars was invested in rum, sugar and molasses, and sent to New-YorJc ; and the residue, in bills, remitted to London ; on which the defendants claimed a commission ;of 2i per cent. The defendants admit, that they sold the vessel at auc- tion, and passed the net proceeds, ded.ucting 3J per cent, commission, to the credit of the concern. They also charge one half "per cent, commission, for effecting insurance pf the cargo shipped from St. Kitts Xo New-York, and 2^ per cent., on amount ofduti.es paid by them. The defendants further alleged that a large proportion of the hills of exchange, so remitted to London, were protested for non-acceptance and non-payment; in consequence of which it became necessary for them to open a correspond- ence *with merchants at St. Kitts and London, in order to [ * 161 obtain payment of the bills ; that in some instances, the bills were paid with damages, and in other cases, new biUs were taken, which were again protested ; that the defendants have collected 120,000 dollars of the bills, and 5,843 doUars still remain unpaid ; and they have been, for eight years past, diligently engaged in effecting the payment of the said bills, maintaining a correspondence, by letters, with mer- chants and others, in Eurqpe and the West-Jndies, for that purpose, &,c. ; and as a compensation for their services, they charge the concern 4,000 dollars, or at the rate of 500 dol- lars per annum, for.eight years ; that they have rendered an account of the proceeds of the vessel and cargo to the plain- 135 161 CASES IN CHANCERY. 1814. <^'ffs, apd have paid over to the plaintiffs their just and full -..^-s^-^^y proportions of all moneys which have come to their handi Franklin from the sale of the ship and cargo, reserving only, as secu- RoBiKsos. "tyjand indemnification ofthepaymentoftheir claims against the concern, for the services rendered by them, in and about the management of their business, as above mentioned, the sum of 10,000' dollars, which they hold, and insist that they are entitled to hold until they are paid for their services as so claimed. The cause being at issue, on a general replication, was brought to a hearing before his honor the late chancellor, who, in October last, pronounced the following decree: " That the charge made by the defendants for compensation, or allowance, by way of salary, as the representatives and agents of the concern in the ship Mary, in the pleadings mentioned, for maintaining and conducting the correspond- ence mentioned in the answer, and, also, all allowance foi commissions on the purchase and sale, by them, or either oi them, of all, or any part of the goods and merchandise men- tioned in the answer, as, also, on the sale of the ship Mary, mentioned in the pleadings, except as herein afterwards is directed, be wholly disallowed by the master in taking the I * 1 62 ] account hereinafter directed ; and it is further *ordered, ad- judged and decreed, that it be referred to one of the masters of this Court, to take and state an account between the plaintiffs, respectively, and the defendants ; in which ac- count the defendants shall be charged with all moneys re- ceived by the defendants, or either of them, as the agents or agent, factors or factor, or as part owners of the ship Mary, and her cargoes, mentioned in the pleadings, as well what they, or either of them, received on the sale of the ship Mary, as, also, what tKey, or either of them, may have re- ceived on account of the cargo of the ship on her return voyage from Batavia, and which have not been accounted for with the plaintiffs. And it is further ordered and de- creed, that in taking the accounts, the defendants be al- lowed reasonable commissions for the sale and disposition ■of the return cargo of the ship Mary, at St. Christophers, as mentioned in the pleadings in this cause, the amount of which commissions, so to be allowed to the defendants by the master in taking the account, is to be ascertained by him in manner following, that is to say, by ascertaining what, no- cording to the usage and custom of merchants in such casos^ or otherwise, was earned by, or ought to be allowed unto, the defendant, William I. Robinson, for his services as supers cargo of the ship Mary, on her outward voyage from New- York to Batavia, and for disposing of the outward ca>-gc of the ship Mary, at Batavia, and for procuring, and cansins! 136 CASES IN CHANCERY. IG'i to be laden on board of the ship Mary, at Batavia, the re- 1814. turn cargo, which was brought in her to, and sold or disposed ^-.^n^^^i^ of at, St. Christophers, as in the pleadings and proofs men- Fhajiklhi tioned, at the time the services were performed, as if no other kobTx-son services had been performed by him. And by ascertaining what, according to the custom of merchants, or the usages established at St. Christophers in such cases, or otherwise, was earned by, or ought to be allowed to, the defendant, fVilliam I. Robinson, as commissions for his services as a factor or commission merchant, for selling the return cargo of the ship Mary, at St. Christophers, as in the pleadings *and proofs mentioned, at the time the services were per- [* 163 formed, exclusive of guarantying the payment of the money on such sale. And, then, by crediting the defendants with such portion of the sum of 10,000 dollars as the services at St. Christophers, calculated as aforesaid, shall bear to the amount or value of the services rendered by the defendant, JVa.'iam I. Robinson, as supercargo of the ship in the voyage, before her arrival at St. Christophers, calculated as aforesaid. And that all other just allowances be made to the defendants, on taking the account, for actual disbursements for account of the plaintiffs (if any) in transacting the business at St. Christophers as aforesaid, or afterwards. That the master be authorized to examine the parties, or any of them, under oath, in taking the accounts, as he shall see fit and proper ; and that the master may report specially, as to any of the matters which may be brought before him, on taking the accounts hereby ordered, if required by either party, and he shall think it reasonable so to do ; and that all further directions be reserved until the coming in of the master's report." On the application of the plaintiffs, a rehearing was di- lected by the present chancellor. On the rehearing, the cause was argued by Riggs and Boyd,^ for the plaintiffs, and Harison and T. Li. Ogden, for the defendants. , The Chancellor. It appears, by the contract between tne parties, of the 21st oi February, 1798, that 10,000 dollars were stipulated to be paid to the defendant, W. I. Robinson, m lieu of all compensation and commission, for his services as supercargo upon the voyage, and for the services of him, and his partner Sylvester Robinson, for the management and sale of the return cargo. It further appears, that the defend- ant, W. I. Robinson, caused 8,000 dollars of this sum to be insured, and that, upon the loss of the voyage, he sued the underwriters, and recovered. His right of recovery depend- ed *on the question, whether he was entitled to demand of f * 164 1 Vol. I. 18 137 164 CASES IN CHANCERY. 1814. the plaintift's the sum stipulated by the cOJitract : and it was v_^-x,--^_^ decided, in the first instance, by the Supreme Court, and Franklih finally, on error, by the Court in the last resort, (2 Cainesh, RL-EiNsoH. Rep. 357. 1 Johns. Rep. 616.) that he had no remedy upon the contract with the plaintifis, because the money was made payable out of a specified fiuid, and that fiind depended on a contingency which had never ha.ppened. We are, then, to consider it as the settled law of this case, that the defend- ants cannot set up a claim .under the contract ; and the poiiit then is, whether they are entitled to a quantum meruit for their services, or for any part thereof, precisely as if no agreement had ever been made. ,i It is evident, from the variation in the accounts, rendered^ by the defendant, W. J. Robinson, that he rested his de- mand for compensation, for his services at St. Kitts, entirely upon his contract. In Jiis first account, (exhibit No- 5,) he charges the plaintiffs with the J0,000 dollars. This was prior to his recovery against the insurers, and when his claim against them was resisted, on the ground that he had not lost his claim under the contract. Afterwards, in his ac- count, (exhibit No. 6,) and which was exhibited after the recovery against the underwriters, he omits this charge alto- gether ; and. this fact is of great force to show the defendant's > own sense of the foundation of his claim. But without con- sidering this waiver as absolutely binding, I cannot find any just principle upon which the claim for commissions, set up by the defendants, can be admitted. It seems to be inconsistent with the object and intention of the parties, in making the contract, to allow the idefendr.' ants to recover on a quantum meruit, merely because the contingency had not occurred on which the extraordinsry and specific allowance for the same services was made to depend. This would be giving the defendants an undue ad- vantage, not consistent with equality and justice between the parties. The benefit of the contingency may haue 1*165] *been an inducement for the allowance. The parties to the contract were joint owners of the ship and cargo ; and the defendant, W. I. Robinson, in his character of part owner, was not entitled to charge for his services, except upon the ground of the special agreement. I know of no. case which entitles one partner to such an allowance against another, without an agreement. The case of Thornton v. Prodar, (1 Anst. 94.) evidently proceeds upon this principle. Each joint owner, in taking care of the joint property, is taking care of his own interest, and the law never undertakes to measure and settle, between partners, their various and unequal ser- vices bestowed on the joint business. This must be left to be regulated by contract. But the defendant, W. I. RoUn • 138 CASES IN CHANCERY. I61i son, bestowed his services as supercargo, in which trust and 1814. character he had been placed by the, whole concern; and, in ^^.^^^..^^-^ that character, he can look only to the agreement. His Nicoli. duty, as supercargo, continued at St. Kitts, and until the trdstees o» cargo, intrusted to his charge, or the proceeds of it, had ar- HnNriNOTon rived at New- York ; and for the purpose of compensation, the sales at St. Kitts may be considered as substituted for the sales at New- York, and they were to be made free of commission. This -case must, therefore, be referred to a master, to take and state an account between the parties, under the direc- tions contained in the decretal order of the 14th of October last, except that, in addition to the claims of the defendants, or either of them, disallowed by that order, the claim for commissions on the sale and disposition of the return cargo of the ship Mary, at St. Christophers, be also disallowed ; and (hat all further directions be reserved until the com- ing in of the master's report. Decree accordingly. *NicoLi<, an infant, by his guardians, &c., [ * 166 against The Trustees, &c. of the Town of Huntington. The peculiar state of property, and the oppressive nature of the litiga- tion at law, as to the title, affords a proper ground for the equitable . jurisdiction of this Court. And the party may either come into equity, first to have his title tried at law, under its superintendence, or he may have the title established at law, before he comes to this Court ; and where the title is once established to the satisfaction of the Court, either upon its own view of *he testimony, or by verdict on one or more issues, awarded at its discretion, it will declare in whom the right exists, by a decree, and protect that right by a perpet- ual injunction. But jf the plaintiff from his own case, does not show enough, or fails to make out a title, by evidence, his bill will be dis- missed without awarding an issue. The patent to William Mcoll, of the 4th of June, 1688, of certain islands on the south side of Long hland, does not extend to Captree Island, Oak Island, and Grass Island, Costs, in equity, do not always follow the event of the cause ; but are awarded or not, according to the justice of the case, in the sound dis- cretion of the Court. And where a plaintiff had probable cause for seeking the aid of the Court, but failed in establishing his tRle ; but the defendant showed none or no better title to the property in dis- pute, the bill was -iismissed without costs on either side. THE hill, which was filed in May, 1306, stated that let- •'■«"« 2i-27th, «ers patent were granted, on the 4th of June, 1688, to Wil- ^t ^"^^ 139 166 CASES IN CHANCERY. 1814. ^**'"* ^icoll, the ancestor of the plaintiff, "for all those islands ._^--sx— »,^ and small isles of sandy land and marshes, or meadow Nicoi.L ground, with the appurtenances, situate, lying, and being Trostef.s of *^" ^^^ south side of I^ong Island, between the Inlet, or Gm^ iiuNTiNOTON. commonly called Huntington Gut; and the lands of the said 'Nicoll, at a certain river called Conetqunt, in the bay, or sound, that is, between the firm land oi Long Island and the beach, together with all and singular the lands, meadows, marshes, moors, waterponds, hawking, hunting, fishing and fowling, and all the rights, profits, hereditaments and appur- tenances, to the said islands, isles, and premises belonging, or in any wise thereto appertaining." r * 167] *That the islands, so granted, are known by the names of Fire Island, Captree Island, Oalc Island and Grass Island, the three last of which are the subject of controversy in tlie cause. The patentee took possession of the islands, and transmitted them, by descent, to the great grandfather of the plaintiff, who. was seised thereof in 1745. In Augmf. 1778, he made his will, and devised the islands to WillicM Nicoll, the grandfather of the plaintiff, for life : remainder to the father of the plaintiff, for life ; remainder to the first son of the plaintiffs father, in fee tail; and, afterwards, died. The plaintiff's grandfather entered on the premises, under the will, in 1780, and continued in possession until his deatii, in 1796. The plaintiff's father then entered as tenant for life, and continued in possession until his death, in 1799, when the plaintiff, then en ventre sa mere, became seised of the premises in fee tail, and which was converted into a fee simple, under the will, by virtue of the s(ct abolishing entails. (See Stedfast y. Nicoll, 3 Johns. Cas. 18.) That the premises in question, from the remotest period, until about twenty or thirty years ago, were merely resorted to for fishing and fowling, with or without the permission of the owners , that they are incapable of being inhabited or enclosed, being at a coiisiderable distance from the main land of Long Island ; that they produce large quantities of grass and herbage, and have lately become valuable ; that, for forty years, and upwards, the ancestors of the plaintiff used the islands, as owners thereof, by leasing the same, and giving permission to persons to cut the grass ; that the lands of the plaintiff, at Conetqunt river, (between which, an_l^~^,-^^ the limits of the town, on the north, and enlarges them on NicPLL the south ; and the defendants admit that this patent does Trustee? of ^^^ cover the premises. This patent was, in law, a surren- Hdktingtoh. der of the two former patents ; and if so, there must be ap end of the title of the defendants. (20 Fin. Ab. Surrender, 125. s. 5. 128.8.9,10. 129. s. 11,12. 131. s. 25.29. 6 Co. 69. b. 10 Co. 67. b.) If the defendants have no title, the plaintiff, having shown a possession, must prevail. ; That from the evidence in the cause, no further issue or trial could be necessary to enable the Court to decide ir [ * 175 ] *fayor of the plaintiff. But if any issue should be directed, it ought to be so framed as to inquire into the title of the defendants, as well as that of the plaintiff; for if neither party had a title, the property was in the state ; and this re- sult would have great influence as to awarding costs. But it is enough for the plaintiff to show a possession, or color- able title. For the defendants, it was insisted, that this was not a case of original equity jurisdiction. It was strictly matter of legal cognizance, of which chancery entertains jurisdiction inci- dentally, in order to prevent suits becoming an instrument of oppression by means of endless litigation, but which a Court of law has no power to prevent. However clear and uncontradicted the evidence may have been, this Court could not decree, without directing an issue at law. The suit is in the nature of a bill of peace. There have been two verdicts, one for each party. One verdict is not suffi- cient to decree in favor of the plaintiff. (4 Bro. P- C. 692 —700.) 2. The third patent was not a surrender of the fee granted by the first and second. There can be no surrender of a fee, by implication. This is applicable only to lesser estates which can be merged in a greater. (Co. Lilt. 337. b. 4 Cruise's Dig. 152. tit. 32. ch. 9. s. 1. 4. 6. PerMns, 585. 20 Vin. Ab. 123. pi, 5. 144. pi. 3.) iugust Sib The cause stood over for decision to this day, whefl the following judgment was pronounced by the Court : The Chancellor. The foundation of the bill is the legal right of the plaintiff to the three islands in dispute ; and his claim to the assistance of this Court arises from the pecu- liar state of the property, and the oppressive nature of the litigation which it involves. His case states a proper ground of equitable jurisdiction, and if the title he sets up was suf- ficiently established at law, before he came here, or waJ 146 CASES IN CHANCERY. *nt *8ince established to the satisfaction of this Court, either upon is 14. its own view of the testimomy, or by verdict, upon one or v.^—,,-.*.... more issues, to be awarded to its discretion, it would then be Nicoli. the duty of the Court to declare that right by decree, and trustees oi protect it by injunction. But, on the other hand, if the title Hd»i ikgtdk of the plaintiff fails, on investigation, and I shall be satisfied, from all that appears in the case, that is not well founded, it would then be useless to put the parties to the expense of another feigned issue. The bill would have no real ground of support, and ought to be dismissed. i have accordingly been led to direct my first and prin- cipal attention to the testimony bearing on the plaintift''s title. His title rests upon the construction and location of the patent of 1688, to William Nicoli, his ancestor. There was no possession of the islands by any person, except oc- casional entries, and these were not so exclusive, steady and certain, as to amount to evidence of right, and to supersede the necessity of paper title. The words of the patent are easily and obviously satisfied according to the present physical state of that part of the country, without reporting to the pretensions of the plaintiff. Indeed, it is impossible to cast the eye upon any modern and accurate map of Long Island without being struck with the impression, that the plaintiff's construction of his patent, is violent and unnatural ; and nothing can reconcile us to it, but satisfact6ry proof that the beach on the south side of that island has undergone some great change since the date of the patent. There is a cluster of low islands, or small isles, which are separated by water, when the tide is full, but not so when the tide is down, and which are called Fire Maud, or Fire Islands, and they lie between a very noted and large inlet, or gut, and the lands of Nicoli. It is admitted, on all sides, that they are included in the patent ; and if that gut was in esse, at the time of the patent, it would seem, very naturally, to have been the one intended. *The words of the patent are, "all those islands, and small [ * m isles, of sandy, land and marsh, or meadow ground, with the appurtenances, situate, lying, and being, on the south side of Long Island, between the inlet or gut, commonly called Iluntington Gut, and the lands of the said Nicoli, at a certain river called Conetqunt," &c. If the above inlet, now existing and generally known by the name of Fire Island Inlet, be the one referred to in the patent, by the name of the " gut, commonly called the Huntington Gut," it puts an end to the plaintiff's claim. To this pomt a great part of the testimony in the cause has been directed. On the pait of the plaintiff, several witnesses have been examined to 147 177 CASES IN CHANCERY. 1814. prove that, for the last 40 or 50 years, or as long as they cap .v-«»-N,--^»_/ well remember, this Fire Island Inlet has been known by NicoLL the several names of Fire Island Inlet or Gut, the Greal Tru-tees of ^''^' ^^(^oU's Gut, or Nine-Mile Gut; but not by the name HuKTiNGTOK. oi Huutington Gut. The testimony of Garret Kettletas, Israel Howell, Jacob Willet, Isaac Thompson, Daniel Jarvis^ Epenetus Wood, Daniel Vdall, and Richard Udall, goes tv this fact. On the other hand, there are several witnesses examined on the part of the defendants, who testify to the same length of time, and that Fire Island Inlet was known, as well by the name of Huntington Gut, or Huntington East Gut, as by the other names above mentioned, .This appears from the testimony of Luke Ruland, Moses Wicks, Caleb Saxton, James Pearsall, Gilbert Wickes, Joseph Ru- land, Joseph Ketcham and Arthur Dingee. There may be a few more witnesses on one side or the other, whose testimony has some relation to this point; but it is unneces- sary to be more particular. The weight of this testimony, v\^' respect to the name, is on the side of the defendants, from: this circumstance, that the witnesses on that side speak af- firmatively, as to a fact within their knowledge, of the name of Huntington Gut, or Huntington East Gut, and the plain- tiffs witnesses can only speak negatively of their having no knowledge of any such name so applied. But, after alii [*178] *there is much uncertainty in the attempt to designate the gut, by the shifting and changing names used within the. last fifty years. The patent goes back 125 years, and speaks of the name then commonly given to the inlet. The plaintiff has, however, proved affirmatively, by seve- ral witnesses, as Garret Kettletas, Isaac Howell, David Willet, John Arthur and Epenetus Wood, that there was formerly a gut to the westward of the islands in dispute, and now filled up, which was called Huntington Gut. On the other hand, it is proved by Caleb Saxton, Gilbert Wickes, Joseph Ketcham and Richard Udall, that Gilgo Gut (and which now appears on the maps to be west of the town of Huntington) was anciently known by the name of Huntington West Gut, or Huntington Gut ; and one of them said it had been called Huntington West Gut by old whale- men, who have been dead forty years ; rnd another said, tiiat the temporary gut, opposite Cedar Island, was called llun tington West Gut, as contradistinguished from Fire Island Inlet, which was called Huntington East Gut. With respect to this intermediate gut, between Fire Island Inlet and Gilgo Gut, (the two plain and noted in- lets, which, and none other in that quarter, are known to modern times and modern maps,) it appears to have been very temporary, and soon disappeared. The whole testi- 148 CASES IN CHANCERY. 178 moiy concerning it is loose tradition, and involved in dark- 1814. ness and fable. Jacob Seaman says, that about fifty years >w^-n,'-.»^ ago, the ocean broke through the beach, between Fire Island Nicoll Gut and Gilgo Gut, with great violence, and formed what trcsteeb o» was called Cedar Island Gut, but which in a few years was Huntinotok filled up, and gone. Isaac Thompson speaks, also, but loosely, of a gut called Huntington Gm^, between Cerfar and Oak Islands, now disappeared ; and he says, that within his memory, the water has several times broke through the beach, and that the inlets afterwards closed up. Though several of the plaintift"s witnesses have designated one of these intermediate and temporary guts, as having been *kno\vn by the name of Huntington Gut, yet, I think, we [ •■ 179 ] must be governed by mere conjecture, in fixing on any of these transient inlets, as the inlet intended by the patent of 1638. Why should we be seeking, through the most vague and contradictory traditions, for some extinguished inlet, which may enable the plaintiff" to embrace islands lying far west, and collateral to his lands, when we have, in front of his farm, a large inlet of unknown antiquity, which includes between it and his lands the little islands lying against or opposite his lands, and which so readily corresponds with the words of the patent? But it is contended, that even Fire Island Inlet, though now nine miles wide, did not exist at the date of the patent. If this be really so, we are then reduced to the necessity of exploring in the dark for the inlet in question. The bill admits, that it is now difficult to ascertain the one intended. To prove the commencement o{ Fire Island Inlet since 1688, the testimony of John Arthur and Richard Udall is relied on. The first witness says, that he always understood, from a boy, (and as he said this in 1770, and was then seventy- four years old, he must refer back to within thirty years of the patent,) that Fire Island Inlet broke through after Nicoll settled there, and that it used to be called the New Gut. The other witness says, that old Mr. Willis toIJ him, that he had been informed by his ancestors, that Fire Island Gut hioke through in the winter of 1690, or 1691, in a storm. This, at best, is improbable, and rests on founda tions too weak. The sudden existence of such a grand inlet as that, known in the memory of the oldest witnesses by the names of the Great Gut and the Nine Mile Gut, anc which was a passage for privateers during the revolutionary war, must have been ascertained with much greater histori- cal certainty ; for it would have been regarded as a remark- able phenomenon in the natural history of the country. The inlet may, probably, have extended itself gradually towards the west. Several of the witnesses attes*> to this, and the 149 180* CASES IN CHANCERY. 1814. fact *applies equally to GilgoGut; but this progress must v.^*-^^— .^^ have been very gradual, for Isaac Thompson, who lived op- NiooLL posite Fire island Inlet ioriy-mne. years, says, only, that from Trdstees of *^^ appearances and changes within his knowledge^ he thinks HiiNTiKGTos. it quite probable that, formerly, the east shore of the gut was as far eastward as the end of Fire Island. If this was, so, then the description in the patent applied most precisely! to the Fire Islands, and to them only. The patent to William Smith, in 1693, is a most impor- tant item of testimony, in the consideration of this question of fact; with me, it has all the preponderance so justly due to written, over parol proof, especially when we are referring to times far beyond the memory of man. That patent was for lands bounded west on East Conetqunt river, and east on Mastick river, and down on each side to the main sea, with the islands in the bay, " from a certain gut, or inlet, west- ward, commonly called Huntington East Gut, to a place on the beach, eastward, called Cuptuange, being- the west I bounds of Southampton ; the beach and bay being:, twenty- four miles east and west." The present Chief Justice, wha tried the feigned issue heretofore awarded in this cause, on the point whether the title of the three islands was in the plaintiff, certified, that this patent to Smith was offered in evidence upon the trial, and was located by parol proof; and that it appeared that the gut^ in the patent to Smith, called Huntington East Gut, was the same with the one mentioned in the pleadings and testimony in this cause, by the name of Fire Island Inlet ; and that running west from the west bounds of Southampton, the twenty-four miles would termi nate some distance to the east of Fire Island, making the probable width of the gut, at the date of the patent, from three and a half to five miles, being nearly the width of NicolVs land on tuong Island. He further certified, thai he told the jury, if Huntington East Gut, in the patent to Srnith, was the same with Huntington Gut, in the patent to Nicoll, the islands in question were not included in his - « 181 1 *patent, and that he was of that opinion, and so told the jury, who accordingly found a verdict for the defendants. This patent to Smith does away all pretence of the creation of Fire Island Inlet, by some violent action of the sea, since 1688 ; for, if it existed in 1693, and was then a familiar pas- sage, " commonly called Huntington East Gat," it is quite certain it was not " the new gut," suddenly brought into existence by a storin, within the two ot three preceding years. From this view of the case, I am perfectly satisfied that the patent to Nicoll does not extend to Captree, Oak, and Grass Islands, and there is no need of any further issue 50 CASES IN CHANCERY. 181 lo inform and satisfy my judgment. I have given the 1314. plaintiif the benefit of the testimony excluded on the issue ; s.^^-^^-*.^ for I have taken it all into consideration in forming my Nicoti. conclusion. Trhstebs o» I have not placed reliance on the evidence which the Hohtihgtow plaintiff has given, of the use and possession of the islands, because, as I have already observed, (and the fact appears abundantly in the testimony,) the islands are not capable of any other possession, occupancy, or real use, than occasional and periodical entries to cut the grass and sedge ; and the testimony as to this use, is quite as strong, if not much stronger, in favor of the defendants. Several witnesses liave testified to the claim and Use of the islands, by the pi lin'.iff and his ancestors, from the time of the lease to i1 iiudl and Smith, in 1768, down to the time of fiUng the b,ll ; but as many, and, perhaps, more witnesses, testify to a s milar claim and occupancy, during the same periodj by the (1 .'cntiants, and those claiming under the town of Hunting- to'i, tite result is, that possession must be adjudged to be- lon^f to, and to be in, the party who has the right; and as ihe plaintiff has no title, he has no lawful possession. The equity of his bill has totally failed. It cannot be material whether the title set up by the de- fendants be good or not, as to the point of the dismissal of *the bill. If they have no title, yet the bill must be dis- [ * 182 ] missed, because the plaintiflf has no title, and, consequently, no equity to support his case. But it is a very different, question, whether the bill shall be dismissed with or without costs. On this question, I have felt some embarrassment.. Costs are always discretionary in this Court. They are awarded, as iprd HafdwicTce has observed, (2 Aik. 552.)' not from any statute authority, but from conscience,, and ex arhitrio boni viri, as to the satisfaction due on one side or the other. A general denial "of costs, in all cases, would be holding out encouragement to great vexation, without any recompense, and therefore, costs usually follow the justice of the case ; but they do not always follow the event of the cause. There are cases in which costs have been denied, though the plaintiff failed, when he had probable cause of suit. (Trethewy v. Hoblin, 2 Ch. Cas. 9.) So, where infant heirs revived a cross bill, and entered into very long and expensive examinations, to set aside a deed, and failed, yet costs were denied against them, as they had probable cause to contend. (^Shales v. Sir John Barrington, 1 P. Wms. 481.) In the present case, it strikes me that the plaintiff had probable cause to come here. His ancestors had maintained a long and steady claim to the islands in dispute, and had 151 i82 CASES IN CHANCERY. 1814. leased one of them as early as the year 1768. He had alsQ ^.t^-^^-^n,,^ succeeded at law in an action of trespass, tried at the Svf- NicoLL folk circuit, in which he had alleged a seisin in himself, and Trustees of ^^^ defendant had alleged a freehold in Huntington, and on UusTiNGTON. the traverse of the defendant's title, the issue .had been found for the plaintiff. Other trespass suits between the parties were still pending ; and, with respect to the merits of the case, as it appears before this Court, the defendants, when brought in, deny the plaintiff's title, and set forth the patents under which they claim an exclusive title to the premises. The issue awarded here was upon the title of the plaintiff, but the defendants' title was brought into view, I * 183 ] and to the notice of *the Court, by the pleadings ; and on the trial of the issue, and on the argument in this Court, the learned judge, before whom the cause was tried, certified, that he gave it as his opinion to the jury, that the patents under which the defendants claimed did not cover the islands in dispute. I do not wish to give any decided opinion on that point. When a cause resolves itself into a dry legal question, the proper forum for the determination of it is a Court of law, and I only notice that title here incidentally, as it serves to guide me in the exercise of a suitable discre- tion as, to costs. It is admitted that the last patent to Huntington does not touch the islands. If the defendants have a title, it is under their first patent, of 1666, and the terms of it are ex- tremely vague as to the southern boundary, and the better opinion is, that it. is limited, in breadth, to the "nine several necks of meadow ground ;" if that be so, the premises are excluded. These necks are undoubtedly to be taken in continuity. Ad proocimum antecedens fat relatio: It i? a general principle, in the construction of written instru- ments, that a particular specification will exclude things not , specified. But, whatever doubts might have existed under. this patent, I consider them as removed by the last patent of 1694, which- was granted on the petition of the inhabitanis of Huntington, and was intended as a substitute for the pre- ceding patents, "so as that the limits and bounds of their town should not be as above mentioned, but as hereafter ex- pressed." The clear definition and location of the southern boundaries of their town, by this last patent, certainly con- cludes the inhabitants of Huntington from resorting to the vague and indefinite description of the former patents, even if we suppose, in opposition to the usage under our govern- ment, that there are technical difficulties in the way of a legal surrender to government of an estate in fee. If, then, the plaintiff had probable cause for instituting his suit, and the defendants have been litigating against his claim 152 CASES IN CHANCERY. 1S3 without any better claim or title on their part, I think it forms 1814. - *a very reasonable case for the denial of costs on either s;de. v-.rf«->v^*i-^ It is a case of mutual error. y"" Bill dismissed without costs. Tallmadge. [*184 1 Lyon & Brockway against Tallmadge and others. [Applied, 1 Edw. 53. VReversed, 14 Johns. SOI.] Where a bill, on demun'er, is dismissed for want of equity, on the merits of the case, as stated, leave to amend the bill will not be granted. Amendments are granted only where there is some defect, as to parties, or some omission, or mistake, of a fact or circumstance, connected with the substance of the case, but not forming the substance itself) or where there' is some defect in the prayer for relief. THE bill stated, that Brockway was imprisoned on a ca. Augvit soik sa at the suit of Tallmadge and others ; that Lyi t ^ ^^ ^'''• Brockway, and the defendant, Dewey, as surety, gave to Richmond, sheriff of the county, one of the defendants, a bond for the liberties of the gaol. Tallmadge &/■ Co. brought an action against the sheriff, for the escape of the defendant from the gaol liberties, which was tried in June, 1811, and the jury, under the direction of the judge, found a verdict for the plaintiffs. It appeared on the trial, that Brockway returned within the liberties- before suit brought. A case having been made and argued, before the Supreme Court, judgment was given thereon, for the plaintiffs, in May, 1812; and the case having been, by consent, turned into a special verdict, a writ of error was brought to the Court for the Correction of Errors. Lyon and Dewey under- took to defend the suit brought against the sheriff for the escape, and employed counsel for that purpose ; and, to in- demnify the sheriff, confessed judgment on the bond which had been given for the gaol liberties. Tallmadge and others offered to relinquish the judgment which they haa *obtained against the sheriff, for the escape of Brockway, if [ * 185 J the sheriff would assign to them the judgment confessed to him on the bond given for the gaol liberties. The sheriff informed the plaintiffs and Dewey, the person who gave the bond, of this proposal, and that he should accede to it, un- less they would deposit the money, or give further security for his indemnity, which they were unable to do ; and the sheriff, in September, 1813, against the wishes, and without the assent, of the plaintiffs and Dew '.y, assigned the judg- Vou I. 20 153 TiLI. MADGE 185 CASES IN CHANCERY. 1814. meiit he had obtained against them on the said bond, to v_^i'-.^,-..^^ Tallmadge & Co., who thereupon released the judgment they Lyon had obtained against the sheriff for the escape ; and which prevented the further prosecution of the writ of error, brought on that judgment. That T. Mumford, as attorney for Tallmadge fy Co., applied to Lnjon, and representing to him the danger of having the payment of the whole judg ment fall on him alone, if there should be any delay, obtain ed the consent of Lyon, that execution should immediately, issue on the judgment; and an execution was accordingly issued against the plaintiffs and Dewey, and levied on theii real and personal estates, which were sold by the sheriff, at auction, for an inconsiderable sum. The plaintiff, IajoIi, alleged, that Dewey, being displeased at Lyon's having con sented to the issuing the execution, had associated himself with Tallmadge and others, the plaintiffs in the suit at law, and had become hostile to the plaintiffs, and unwilling to do any act favorable to the plaintiffs, or unfavorable to the defendants, with whom he had rhade his peace. That the proceedings in the siiit had been stayed by an order of the Supreme Court, but he, Lyon, apprehended that steps would be speedily taken to dispose of his property under the exe- cution ; that the question as to the liability of the sheriff for the escape, where the prisoner returned before suit brought, had been brought before the Court of Errors, in a similar case ; and the judgment of the Supreme Court, in Tillman f.: * i86 ] Lansing, on which the Court reliedin giving judgment in *the suit of Tallmadge and others v. Richmond, had been reversed. The bill, then, stated some agreement that the case of the plaintiffs should be brought within the last decision of the Court of Errors ; and there was a prayer for general relief, and for an injunction to stay all proceedings, by the defend- ants, on the judgments at law. , There was a general demurrer to the bill. Gold, for the plaintiffs, cited 10 Johns, itep. 509. 549 563. Pothier oh Oblig. par, 4. c. 3. s. 6. Hinde's Ft. 17. Barton's Suit in Egu. 40. 2 Atlc. 3. 13. Vesey, lU. 2 P. Wms. 156. 3 Atk. 755. Dickens, 533. Cooper's Eg. PL 129. 139. Miiford, 4. 2 Johns. Cas. 1. 2 Powell on Cont. 163, 164. 2 Fesey, 159. 3 Vesey, jun. 253. Riggs, contra. Augiist 30th. The Chancellor. There is no equity appearing dii the face of this bill. The assignment of the judgment against Lyan and Dewey, to Tallmadge and others, and the release of the judgment against Richmond, are not charged as fraudu 154 CASES IN CHANCERY, 186 ent acts, :,r done with a fraudulent intention. The very iai4. jtate of t;6 case repels any possible presumption of fraud, v^^-v/-^-' Richmond gave notice to the plaintiffs of the proposition Ltos made to him, and required of them the deposit of the sum, tallmaoqi. for which he stood charged, so as the more effectually to indemnify him : that was not done. He then required ad- ditional security : that was not given ; and he told the plain- tiftb- that he should make the assignment, if this effectual indemnity was not given. There was no concealment or fraud in the case ; but due notice was given of his intention. Nor was it an unreasonable or oppressive demand on the part of Richmond. He stood charged with the escape by the judgment of the Supreme Court ; and Lyon and Dewey stood *behind him, and were bound to save him harmless. He had [ * 187 ] d right to be acquitted and discharged from all hazard, and was not bound to permit a litigation to go on in his name, and at his risk. He had a right, at any time, to relieve himself from the burthen of the risk, and of the Htigation, by placing t)ie surety in his place, with' all his means of defence. It was a right founded on a clear fundamental principle of equity. This he offered to do, and asked only a deposit of the sum for which he stood charged ; or, if that could not be done, that he should receive additional security. There is no hardship, or injustice, or fraud, imputed to Richmond, either by any averment, or by the facts stated in the bill. But the biiradmits, that, after all this was done, the plaintiff con- sented that the assignees should issue execution on the judg- ment confessed. If ever the maxim applied, it does here, that volenti non fit injuria. With a knowledge of all the facts, and as the last act in the history of the case, the plain- tiff consents to have his, and his co-sureties' property charged in execution, and sold for the payment of the debt. This consent is alleged to have been obtained upon the repre- sentations of Th. Mumford, as counsel for the defendants ; but Mumford is no party to this bill, and is not called upon to answer to the truth of those representationsj nor are these representations even charged as being untrue, or made with any fraudulent intention. The bill, therefore, does not contain any gravamen, or equity. There is nothing that the defendants need to an- swer. The bill must be di sraissed with costs. Gold, for the plaintiff, thep moved for leave to amend the bill Riggs, contra. The Chancellor. The motion for leave to amend the Augmt sim bill, is not founded upon any specified omission or imperfec- 155 188* CASES IN CHANCERY. 1814. tion. *The -demurrer was decided upon the merits, and on s^^-v"*.-^ the ground that lue bill contained no equity. A .generSi Gelsios leave to mend would be the same as leave to make a new OoDwisE. '''"j ^nd I think the indulgence of amendments is not to be carried so far. If the bill be found defective in its prayer for relief, or in proper parties, or in the omissiOti' or mistake of some fact or circumstance connected with the substance of the' case, but not forming the substance itself, the amendment is usually granted. But the substance of the bill must contain ground for relief There must be equity in the case^ when fully stated, and correctly applied to the proper parties, sufficient to warrant a decree. HerejS as I have already observed, the substance of the bill is de ' fective. The plaintitf gives a plain and candid statement of his case, and it cannot entitle him to relief, for the reasons as- signed in pronouncing the decree. In the absence of author- ity, I should deny this motion ; because, as far as the do(>) trine of amendments can be reduced to general rules, or principle, it is against it. But there are cases which goverri' the present one. In Napier v. Effingham, (2 P- Wmi. 401.) Lord Ch. King observed, that there was not any precedent, in this Court, of an amendment to a bill in a part wherein it has been dismissed upon the merits ; and in a case before Lord i Talbot, and which is cited by Mr. Cox, in his notes to P. Williams, (2 P. Wms. 300.) the chancellor observed, that, after a demurrer to the whole bill allowed, the bill was regularly out of Court, and there was no instance of leave to amend it. Motion denied, with costs. ' [ • 189 ] *D. Gei.ston against Codwise, Morris; Mowatt, and others. [Followed, 4 Johns. Ch. 304.] On appeal froiti this Court, the decree or order of the Court for the Correction of Errors becomes, to this Court, the law of the case ; and the party can have no other, or furthei relief, than what is adminis- tered by the decree of the Court above. Btpt, 3d. THE bill gave a, summary of the suits and proceedings of Codwise and others against Sands and others, of whom the plamliflF was one, and on a petition presented to this Court by , Getston, the order of the Courts thereon, and the decree of 156 CASES IN CHANCERY, 1S9 the Oourt for the Correction of Errors, on appeal. Itisunne- 1814. cessary to detail the voluminous proceedings in these causes. v^.*-n^-*_^ The substance of them is to be found in the reports. (10 Gel^ston Johns. Rep. 507 — 524.) Ccjdwise The material facts are, that certain real estates of Comfort Sands, a bankrupt, at Brooklyn; and in Pme and Cedar streets, in New-YorJc, the conveyances of which, by the bankrupt, had been set aside as fraudulent, were ordered to be sold by the master, and the money brought into Court, to be distributed among the creditors of Sands. The plain- tiff, a judgment creditor, pending an appeal in the original suit, (4 Johns. Rep. 636.) presented his petition, stating his judgment as a lien on the real estate of Sands, and praying an order for the payment of the amount, after the satisfaction o(' prior encumbrances ; the hearing of the petition was de- fined until the fund was brought into Court. Pursuant to the decree of the Court above, the moneys were ordered, on the 25th of June, 1808, to be paid over^to the assignees of tiie bankrupt. In March, 1809, the bill, as it regards Gelston, and his petition, were Reard, and the bill dismissed, with costs. *In I'e^ruary, 1810, Gelston presented another ^e^i^jow, [*190] stating mistakes in drawing up the decree, in ordering his judgment to be paid, according to its priority, in preference to the general creditors, nor the priority of the liens to be ascertained and settled ; and because the decree made no order or direction allowing or dismissing the former petition ; and he, therefore, prayed a rehearing on those two points : and this petition for a rehearing was, on the 12th of Septem- ber, 1810, dismissed with costs. The Court for the Correc- tion of Errors, in March, 1812, on appeal from this decision, as well as on a cross appeal from the decree of the Court, in September, 1809, dismissing the bill against Gelston, ordered the cross appeal to be dismissed, with 100 dollars costs, and the decree of this Court to be affirmed : and that Court, " further considering that the moneys arising from the real estate, formerly of Comfort Sands, in Brooklyn, in the plead- ings mentioned, and which are now in the Court of Chan- cery, or may hereafter he brought therein, ought (after paying costs, &,c.) to be applied to the payment and satis- faction of the judgment creditors of Comfort Sands, whose judgments were docketed previously to the bankruptcy of Comfort Sands, according to the priority of the time of docketing, in preference to the other creditors of Comfort Sands ;" " ordered, adjudged, and decreed, that the order of the Court of Chancery, of the 12th of September, 1810, be, and the same is hereby reversed ;" and it further " order ed, that the cause be remanded to the Court of Chancery, to the end, that the Court may direct aa inquiry, &c., and 157 190 CASES IN CHANCERY. 1814. what judgments remain open, unsatisfied of record, against ^-^s^-'^.^ Comfort Sands, and which were docketed previous to his Gelstok becoming a bankrupt, and the amount thereof respectively, Cod WISE, and the' order, in point of time, in which they were docketed j and that the Court of Chancery, after deducting the costs, &G., and, also, the amount due on all the judgments stand- ing open and unsatisfied of record, against Comfort Sands, [ * 191 ] and which were docketed *prior in point of time to the judgment obtained by David Gelston, shall cause the residue, if any, to be applied to the satisfaction of the judgment of David Gelston, together with the interest." _ , " And further, that on the inquiry as to the judgments against Comfort Sands, docketed previous to the judgment in favor of David Gelston, which may be directed by the Court of Chancery, the fact of the prior judgments remain- ing open and unsatisfied of record, and satisfaction not voluntarily confessed before the master, shall be conclusive against David Gelston, as to the amount to be retained, in preference to the satisfaction of his judgment." The bill further stated, that certain of the judgments standing unsatisfied on record against Sarids, prior to the judgment of Gelston, had been paid, or discharged, or ought not to be considered as liens, for reasons stated ; that the as- signees had sold other real estates of Comfort Sands, the proceeds of which had come to their hands : and that the assignees had obtained out of Court, the proceeds of the sales, by Mr. Hildreth, the master, amounting to above 28,000 dollars ; but when applied to, had refused to pay the amount due to the plaintiff on his judgment, on the pretence that the decree only directed the payment to be made out of such moneys as were then in Court, or might thereafter hi brought in; and that they having obtained the moneys pre- vious to this decree, they were not bound to apply the game to the payment of the judgment, though they well knew that the amount was more than sufficient to pay all the judgments unsatisfied of record prior to the plaintiff's judgment; and that the plaintiff was, therefore, compelled to file his bill against the defendants, in the nature of a supplemental bill, to have the full benefit of the decree ; and he prayed for a discovery; and that the principal and interest of his judgment might be paid to him out of the moneys received by the defend- ants ; and for general relief. [ * 192 ] *The defendants, in their answer, stated, that, in May, 1812, on the remittitur to this Court, from the Court of Errors, the plaintiff applied for, and obtained, an order of this Court, referring it to a master, to take an account of what Codwise and others had expended, &c. for costs, fcc; what judgments remained open and unsatisfied of record 158 CA ,i:t3 IN CHANCERY. i92 against Comfort Sands, docketed before his bankruptcy, and their priority in point of time. And directions were given, conformable to the decree of the Court above, as to the judgments remaining open, and unsatisfied of record, unless codwisi voluntarily confessed to be paid ; and directed the master to report thereon with all convenient speed ; and it was there- upon decreed, that the said decree of the Court above should be carried into effect in this Court. And the de- fendants insisted, that inasmuch as this Court, and the Court above, did not order the moneys in the hands of the as- signees, or of the master, to be brought into Court, to answer the demand of the plaintiff, but restricted him for payment, to the money then in Court, or thereafter to be brought into Court, arising from the sales of the BrooMyn estate ; and as the said decree has been procured by the plaintiff himself, he can have no equitable relief, beyond the scope of that decree, which, and the order of reference to the master, being in full force, are, they insisted, a bar to the plaintiff's demand, and the relief sought by his bill. The defendants, also, answered the other matters charged in the bill ; and the cause being put at issue, sever?,! wit- nesses were examined ; but it is unnecessary to state the evidence here. Pendleton and S. Jones, jun., for the plaintiff. They cited Mitford's PL 86, 87. Cooper's PL 99, 100. 4 Johns. Rep 538. 10 Johns. Rep. 507. 520. 522. Harison and Riggs, contra. They cited Mitford's PL 79 —82. 3. P. fVms. 371. Cooper's PL 88, 89. 3 Atk. *809. f * 199 | QVesey, 511. 1 CA. Gas. 43, 44. 2 Fesey, 232. 2 Atk ■349. 1 P. Wms. 723. Cas. temp. Talk 201. 2 Atk. 107 Forest. Rep. 65. The Chancellor. This bill is founded on the decree of Sept 3d the Court for the Correction of Errors, of March, 1812, (10 Johns. Rep. 523.) which declared, that the moneys arising from the real estate of Comfort Sands, at BrooMyn, and which were then m the Court of Chancery, or might there- ufter be brought in, after paying the costs and charges of l^dwtse and o'hers, ought to be applied to pay the judsr- nient creditors of Sands, whose judgments were docketed prior to his bankruptcy, according to priority, in preference to his other creditors. The bill accordingly calls for a dis- covery of the state of those several judgments, and the amount due thereon ; and that the defendants may pay the plaintiff the amount of his judgment, out of the moneys 159 lyy CASES IN CHANCERY. 1814. arising from the proceeds, generally, of all the real estates ol >_rf»-v,-«»^ Sands. Gelstou But the decree went further, and prescribed, specially, the CoDwisE. terms of the relief afforded to the present plaintifi". This Court was to direct an inquiry as to the costs and charges of Codwise and others, and as to the judgments which were , docketed prior to the bankruptcy of Sands, and remained unsatisfied of record ; and that those costs, and the unsatis- fied judgments of record, prior in point of time to that of the plaintiff, were first to be deducted from the particular fund so appropriated to pay the plaintiff. The decree further di- rected, that, upon such inquiry, the fact of prior judgments remaining unsatisfied of record, and of which satisfaction was not voluntarily confessed before the master, was to be conclusive upon the plaintiff, as to the amount to be retain ed, in preference to his judgment. Upon these terms, and in obedience to that decree, an in quiry was directed by this Court; and the plaintiff, finding that this course would not exactly meet his wishes and pur- f*194] pose, *has filed the present bill, which is not strictly a bill to carry the decree of the Court above into execution, but is more like a bill of review, to correct the alleged imperfef.tion of that decree. The bill seeks relief out of the procpcds of all the estate of Sands, without confining himself to the proceeds of the Brooklyn estate ; and it seeks for a discovie- ry of the payment of the judgments by other means than the record, or the voluntary confession of the party ; and it seeks for payment from moneys not then in chancery, nor - afterwards brought in, but which had been previously, appro- priated by the officers of the Court. In all these respects, the bill seeks for relief ieyond the terms of the decree, though that decree was obtained on his own motion, and on his own appeal. The defendants, accordingly, in their answer, among other things, insist, that the plaintiff is limited to the terms of that decree, and the order made, in this Court, to carry it into effect ; and this they insist on as a bar to thi| suit, especially as that decree is in full force, and was obtained by the plain- tiff's own seeking. It struck me, at the very threshold of the argument, thai the terms of that decree were the law of this Court, and that no decree can be made here, or relief given to the par- ties in that suit, in variation from that decree. The more I have since reflected upon the case, the more I am impressed with the conviction that this is a solid principle, and one well grounded in reason and authority. It is the acknowledged doctrine of a Court of review, to 160 CASES iiN CHANCERY. 19^ give such decree as the Court below ought to have given ; iQlt and when the plaintiff below brings the appeal, the Court s«,»-s^^*-' above not only reverses wha* .s wrong, but decrees what is Gelstok right, and models tbe relief according to its own view of the codwisk. ends of justice, and the exigencies of the case. The act organizing the Court for the Correction of Errors, declares, that " on appeals from any decree or order of the Court of Chancery, the Court above is authorized and required, finally, *to' determine the same, and all matters concerning it ; and [ * 195 ] to reverse, affirm, or alter the decree or order, and to make such other decree, or order, therein, as equity and justice shall require." The Court above acts, therefore, on appeals, in the given case, with all the plenitude of a Court of equity of original jurisdiction ; and the special terms of the decree, whatever they may be, become, to this Court, the law of that case, and no other, or further relief, can be administered to ■he party. Were it otherwise, there would be no such thing as a final end to litigation, and suits and decrees, on the same subject matter, would be multiplied so as to become embarrassing, inconsistent and oppressive. It is infinitely better that de- crees, in the last resort, however inconvenient or incomplete in their particular provisions in the particular case, should be acquiesced in, and finally close the controversy, than that they should be permitted to be amended, or extended by new original bills between the same parties, on the same sub- ject matter. Such a precedent as the one now sought for, would tend to fix a character of dangerous instability and uncertainty on the administration of justice. It may sometimes become impossible, from accidents, rce, on the ground of adultery, is taken pro con, fisso, or the defendmt, in his answer, admits the adultery charged, and a reference is made to the master, under the third section of the act concerning divorces, (2 JV. R. L. 197, 198.) to take the proof of the adultery, and to report thereon, &c. by the proof to be taken by the master, is meant legal proof generally ; and he may, therefore, receive proof of the confession of the defendant, wh.'ch must, how- ever, be connected with and supported by other proofs, before the Court will decree a divorce a vincvlo matrimonii. But, by the 51st rule of the Court, June, 1806, evidence of the confes- sions of the defendant is not admissible at all, on a feigned issue award- ed to try the fact of adultery. Whether this rule has not gone too far in rejecting this species of proof altogether.' Qucere. THE plaintiff filed a bill for a divorce against the defend- Srpt. stk. ant, her husband, charging him with adultery and cruel usage. The bill was taken pro confesso, for want of an an- swer ; and a reference was made to a master to report tiie facts, and his opinion thereon. The master reported, 1. Cruel usage by the defendant, of his wife. 2. Evidence of adultery, in his opinion satisfac- tory, *and that the evidence consisted of the testimony of [ * 198 three witnesses. The first witness testified, that he had been at houses of ill fame in New-York, once or twice, with the defendant, but did not stay long, and that he never saw the defendant alone with any woman, at such places, nor does he know that he slept at any such house, or that he had criminal intercourse with any woman. That the defendant once told him he had the bad disorder, and by which he un- derstood him to mean the venereal disease. Another wit- ness testified, that the defendant confessed to her he had the venereal, and took it from a girl at New-Yorlc, and that he had had a child by a certain other girl. She, also, proved ucts of cruelty. The third witness, also, proved acts of cruel usage. n. Jones, for the plaintiff, moved for a confirmation of the report on the facts t.ierein stated, and for a decree of divorce a vinculo, &c. The Chancellor. The Courts have gone no further on the trial of the issue on a bill of divorce, than to receive proof of the confessions of the party as competent testimony, ■when connected with other proof . (Doe v. Roe, 1 Johns. Cas'. 25.) But, bv the 51st rule of this Court, in June, ISOSJ such evidence is not now admissible at all, on a feigned issue' 163 Bktts. 198 CASES IN CHANCERY. 1814. to be awarded, to try the fact of adultery. It might be qucR ^-^•-v^fGSTON. HoFFMAif LlVINGSTOK Where a motion on some interlocutory matter in a cause, has been ouce heard and decided on, it cannot be repeated unless on a new ground. It is not enough that additional evidence is offered by the affidavits, of the matter urged in support of the former motion ; nor can affida- vits be received on such motion to aid the answer of the defendants. If the answer denies all the equity of the bill, the injunction to stay pro- ceedings, at law, will be dissolved of course ; otherwise, it will be con- tinued until the hearing : and where it may be necessary to ascertain any matter of fact, for the information of the Coim, it must be on an issue at law, awarded for that purpose. VAN VECHTEN, for the defendant, moved to dis- Sept. I9ih solve the injunction heretofore issued in this cause, so far as to suffer the defendant to go to trial for so much of the land in the plaintiff's possession as was not included in the farm, as possessed by Hendrick Hoffman, in December, 1784. He read the affidavits of Simon Melius, Caleb Finch, and Robert Thompson, a surveyor, to show that there was a considerable part of the land in the plaintiff's possession not included in tjie old farm. Henry, contra, objected on the following grounds : 1 . That a similar motion was made, and denied, the 6th of August, 1810. 2. That the defendant is not entitled to produce affida- vits in addition to his answer, in support of such a motion. 3. That a permission to go to trial at law, and not by an issue under the direction of this Court, is asked for in respect to a part of the subject matter in controversy. The Chancellok. There is weight in all the objections. The same interlocutory motion, on the same matter, ought not to be repeated, without the existence of some new *ground. The former motion, on the same point, was heard, [ * 212 ' discussed and decided ; and there would be great vexation if the same motion can be repeated. But it is said that the affidavits present new matter. They are intended,^however, only as additional evidence of the matter urged in support of the former motion ; nor is it usual or proper to introduce affidavits (taken, necessarily, ex parte) to aid the answer, on such a motion. The plaintiff is not permitted to traverse and contradict the answer by affidavits ; but the injunction is dissolved, of course, if the answer denies all the equity in the bill. If the answer is not sufficient, of itself, to support the motion, the injunction ought to be continued to the bearing. i73 PLATNKB iil2 CASES IN CHANCERY. 1814. When tht Court has jurisdiction of the case, and tne i,^*-^,,-,^^ . answer is not sufficient to dissolve an injunction staying. BuMPus proceedings at law, there ought not to be a trial of any part of the matter in controversy, but such as shall be awarded, for the information of this Court. When it becomes neces- sary to ascertain what was the extent of the farm, as occu- pied by Hendrick Hoffman, in December, 1784, this Court will take the proper measures for that purpose. The rights of the parties cannot be ascertained until the hearing,, and, until theri, it would be inconvenient, and might be dangerous, : to permit any interference at law. Motion denied, with costs. . 1*213] *N. I. & S. BuMPUs against Plainer, Bay, and Underwood. [Followed, 3 Edw. 43; 3 Id. 126; S Jolina. Ch. 521; 2 Sandf. Oh. 348. Eeviewed, 58 Wis. 515. See Clarke 578.] Where A. conveyed land to B., by deed, with covenants of warranty, and B. executed to A. a bond and a mortgage, to secure the paymenl of part of the purchase money, B. cannot be relieved against the mortgage on the ground of a failure of consideration, for want of , title in A., possession having been taken by B., under the deed, and' there being no eviction at law, under a paramount title ; and, more especially, in a case where, the bond and mortgage haying been as- . signed to C, B., in consideration of forbearance, executed a new bond and mortgage to C, for the same premises, will relief be denied against the assignee for a valuable consideration, without notice of any fraud, or failure of consideration, in the creation of the original debt. A purchaser, without notice, from one who has fraudulently purchased, is not aflected by the fraud. And a purchaser, with notice to himself, from one who purchased without notice of the fraud, may protect himself under th« fiis' purchaser. Stpt.i'h. THE bill, which was for an injunction, stated, that Plat:.,. Tier, pretending to have a title to lot No. 28, in the Frcema-, son's Patent, on the 30th of December, 1794, sold and, ^ conveyed it to N. &/■ I. Bumpus, foi 1,788 dollars, of which the sum of 100 dollars was paid down, and a bond and; mortgage taken for the residue, since which the sum of 450 , dollars had been paid on the bond. The deed contained'* the usual covenant of warranty. N. &f I. Bumpus. after- wards, sold 100 acres of the land to Simeon Bumpus, tho other plaintiff. The defendant, Bay, procured from Pldihei . 174 CASES IN CHANCERY. 213 an assignment of the bond and mortgage, without any 1914, consideration ; and then prevailed on the plaintiffs, N. &r I s^,*-^-'-**-' Bumpus, to execute a new bond and mortgage, on cancelling Bdmpus the old, for the balance due, 1,519 dollars and 87 cents, j.^^^^-^^^ which were executed the 22d of June, 1799. The bill alleged, that, about that time, Plainer, being suspected of forgery, was prosecuted for certain forgeries, and convicted and sentenced to the state prison; that the pretended deed from Allen MBougall, the *original grantee, to Plainer, for [ * 214 the lot of land, was forged ; that one Ehenezer Belknap, and one Seth Turner, were concerned with Plainer in his frauds and forgeries, which was well known to Bay at the time of his procuring the bond and mortgage, and he well knew the title to be suspicious. That Bay, in February, 1810, sold and assigned the bond and mortgage to the defendant, Nathan Underwood, who knew, at the time, that the pre- tended title of Plainer to the land was false ; that MBougall, long before the pretended deed to Plainer, had conveyed the lot to John Weaiherwax, in pursuance of a trust, existing for that purpose, att he time of the grant ; that Weaiherwax gave a mortgage of the premises to Fountain and others, in England, dated the 2d of March, 1773, who, afterwards, assigned the same to John Thurman, of this state, late deceased. The bill prayed an injunction against the pro- ceedings of Underwood, on the bond and mortgage, &-c. The answer of Plainer admitted the sale, &c. by him ; but he averred that MBougalVs deed was genuine, and executed for a valuable consideration, and the title good ; that if he ever assigned the bond and mortgage to Bay, it was without consideration, and for the sole use of him, Plainer. Bay, in his answer, admitted the assignment from Plainer ; and alleged that he gave Seth Turner the full amount of the bond and mortgage ; that he did not know that Platner's title was invalid. He took the assignment from Plainer for greater security, believing that Turner was the owner of the bond and mortgage ; no consideration was paid to Plainer, and the assignment was made while he was in gaol. The assignment from Turner was upon the sale to him of certain lands in the Minisink Patent, of which Bay was the owner ; and he was told, and believed, that Plainer authorized Turner to sell the bond and mortgage ; and when Plainer made the assignment, he did not pretend that the sale by Turner, to him, was without authority. He heard *o{ Plainer being prosecuted for forgery, about 6 months [ * 215 ' before the assignment by Plainer to him. Underwood, in his answer, admitted the sale and assign- ment of the bond and mortgage, to him, by Bay, on the 27th 175 ai5 CASES IN CHANCERY. 1814. of February, 1810, but said it was for a fair and valuable consideration. He said that he had no knowledge to fnduce a belief that the deed to Plainer was forged ; that the pos- session of the plaintiffs and others had -been heldJ|^r twenty years, and were now held under that deed, or tne title of Plainer; that he was induced to purchase the bond and mortgage, from the advice of counsel that Thurman's claim was groundless. Elijah Snow, a witness, deposed, that, in 1793, he was at the house of Plainer, and told him that the occupants on the Freemason's patent wished to discover the owners. Plainer said he did not know that he ever had any concern with the lands in that patent, but would endeavor to find out the owner. Afterwards, in the same year, the witness again saw Plainer, who said he knew all about it, and pro- duced MDougall's deed. The witness informed the plain- tiffs, and other settlers, of these circumstances, and the plaintiffs went and purchased of Plainer, That Plainer told him, about 10 years ago, that Bay had got the bond and mortgage withouthisconsent, and without consideration. The witness saw Bay, 14 or 15 years before, in Herkimer county, when he said that he. had come up to get the bond and mortgage exchanged, and, for that purpose, would give a longer time of payment. The witness suggested to him a suspicion that the deed to Plainer was forged, having heard that Plainer was lately convicted of forgery, and Bay answered, that it looked rather suspicious. Bay told the plaintiffs, that he had got the bond and mortgage for a debt Plainer owed him, and offered them further time of payment, to change the bond and mortgage. About that time he * 1 5 ] communicated to the defendant. Underwood, all *the sus- picious circumstances above mentioned, relative to Platner's deed. Another witness stated, that he heard Plainer, in 1796, or 1797, tell I. Bumpus, one of the plaintiffs, that the title from MDougall was good ; and tl^at, in 1798, or 1799, Bay said the same to the plaintiffs; and that he had pur- chased the bond and mortgage of Plainer for a valuable consideration, and applied to the plaintiffs to change them. It was proved, also, that Plainer had declared, within 3 or 4 years, that his title from MDougall was good, and that Bay had got the bond and mortgage from him, when in trouble, for nothing; that Bay, at that time, said he had sold his bond and mortgage to Underioood, at a discount, to be collected at his own risk. It was further proved, that in 1803, ejectment suits were brought by Thurman against the plaintiffs, and that the counsel informed them that the deed to Plainer was a forgery 176 CASES IN CHANCERY. 216 and advised them not to produce it. After one trial, in 1814. whicH the defendants succeeded, on the ground of a pre- -^^^^^.^-^-^ .sumption of payment, a compromise took place. Bompds On tijA part of the defendants, it was proved, that the platnek plaintiffs nad lived on the premises for more than 20 years, and the witness always understood that they held posses- sion under Plainer' s title ; that no other title was ever mentioned, except that and Thurman's, who failed in his ejectment, in 1803. William Hay testified, that the bond and mortgage were taken by his father, (one of the defendants,) on a contract for the exchange of lands with Turner ; his father letting Turner have lands in the Minisirik patent for land in Esperanza. The plaintiffs exhibited a deed from MDougall to Weatherwax, in 1771, and the mortgage from Weatherwax, in 1773. Gold, for the plaintiffs. *Kirkland, contra. [ * 217 ] The Chancellok. I have not been able to discover any principle arising out of the facts, in this case, that will enable me to set aside the bond and mortgage given by the plaintifis to the defendant, Bay. The ground taken in support of the bill, is the failure of consideration : 1. Because the title, derived from Plainer, was founded on a forged deed from MDougall to Plainer : 2. If not, yet that there was a prior conveyance from MDougall to Weatherwax. 1. The allegation of forgery is, not proved, and, probably, would never have been made, if Plainer had not been con- victed of some other forgery, in 1799, and which was seve- ral years after he had sold to the plaintiffs. But we are not authorized to declare the deed a forgery, on mere suspicion, nor because Plainer was convicted of forgery, in another case, totally unconnected with this. The deed appears to have been proved before a master, by a subscribing witness, in 1797, or two years before the plaintiffs contracted with Bay. They purchased with knowledge of several circum- stances, now put forward as grounds of suspicion ; for those circumstances were known to Elijah Snow, in 1793, and by him told to the plaintiffs, before they took their deed of Plai- ner, in December, 1794. When the bond and mortgage, originally given to Plainer, were given up and cancelled, in 1799, and a new bond and mortgage (being the same now in question) executed to Bay, he appears to have been the assignee of the original bond and mortgage, without the Vol. I 23 ' 177 Platser. 817 CASES IN CHANCERY. knowledge of any fact to impeach them, and to nave pur chased them for a valuable consideration. There is no sueh knowledge brought home to him by any proof in the case. He alleges, in his answer, that he purchased tiie bond and mortgage, hona fide, and for a valuable consideration ; and his averment must be taken for truth, until it is duly dis- proved. The consideration is supported by tlie deposition j * 218 ] of William Bay, and the fact is not contradicted. *Tbe bond and mortgage were renewed upon his giving furtner time of payment, and there does not appear to have been any undue practice in procuring them. If the assignment from Plainer, or his agent, was unduly procured, it is a ques- tion to be settled between Plainer and Bay, in the present suit, not between Bay and the plaintiffs. 2. The failure of consideration, because MDougaU \izA no title when he conveyed to Plainer, does not appear to be sufficiently ascertained. It is said to be very difficult to ex- tract from the books, what the rule of equity is upon this point of failure of consideration, after the agreement is exe- cuted ; (1 Fonb. 363.) but, I apprehend, it may be safely said, that there is no case of relief on this ground, when possession has passed and continued, without any eviction at law, under a paramount title. Plain,er conveyed to the plaintiffs, with a covenant of warranty, and he is bound to defend their title at law ; and non constat, that he is not able and willing to do it. There was a case under Lord Notting- ham, (2 Ch. Cas. 19. Anon.) in which the purchaser was relieved from the payment of the purchase money ; but he had already lost the land, by eviction, under a better title. If the title fails, in this case, the plaintiffs can resort to the covenants in their deeds for their indemnity. I consider an eviction at law an indispensable part of the plaintiffs' claim to relief here, on the mere ground of failure of consideration. The proof is, that they have been in possession of the land ever since the purchase from Plainer, (and which was near twenty years ago,) under that title, and no other. It would appear, indeed, from exhibits in the cause, that MDougall, under whom Plainer claimed, had previously sold to one Weaiherwax, whose estate was afterwards forfeited to the people of this state. That may be the better title, but i* cannot be tried here upon this bill. The people are no party lO this suit, and the presumption is ripening fast against that f * 219 ] title,' from the lapse of time since it accrued, *which was during the revolutionary war. It is impossible for me to know what legail, or what valid, defence may be set up against it. Perhaps there may be none, but the present application is clearly premature; audit would be without precedent, and dangerous in principle, to atrest and bar the 178 CASES IN CHANCERY. 2J9 recovery of the debt, while the purchaser is still in posses- 1814. sion under the purchase deed, and there has been no evic- ^_*»-n^— o-' tionatlaw. ... ^"V"" Theme is another, and a very strong ingredient, in this platsee case, that forbids relief. I allude to the fact, that several years after the purchase from Plainer, and enjoyment of the land, the plaintiffs took up the original bond and mortgage, and gave new ones to Bay, the assignee, in consideration of forbearance. He stands in the light of an assignee for a valuable consideration, without notice of any fraud, or want of consideration, in the original creation of the debt. He has, therefore, strong claims against the interference of the Court against him. Such purchasers are especially protect- ed in their subsequent contracts. Thus, where A. gave a usurious note to B., who sold it to C. for a valuable consid- eration, without notice of the usury, and A. took up the note, and gave a bond to C. for the amount, it was held good. The substituted security was not liable to the charge of usury, which vitiated the original security. ( Cuthbert v. Haley, 8 Term. Rep. 390.) On the same principle, a pur- chaser, without notice from a fraudulent purchaser, is not affected by the fraud. (Jackson v. Henry, 10 Johns. Rep. 185.) The maxim, in these cases, is, in jure non remota causa, sed proocima spectatur. I have considered this case, all along, as if Bay was still owner of the bond and mortgage, and have not deemed it material to examine, as to any notice with which Under.wood^ the present holder of the securities, might be charged. It is a well-settled rule of this Court, that a man who is a pur- chaser, with notice himself, from a person who bought with- out notice, may protect himself under the first purchaser. *The reason is, to prevent a stagnation of property, and [ * 220 ] because the first purchaser, being entitled to hold and enjoy, must be equally entitled to sell. {Lowther v. Carleton, Cases temp. Talbot, 187. 2 .^tJc. 139. 242. Harrison V. Forth, Free, in Ch. 51. Brandlyn v. Ord, 1 Atk. 571. Mertins v. Jolliffe, Amb. 313. Sweet v. Southcote, 2 Bro. 66.) I am, accordingly, of opinion, that the bill, as to all the defendants, must be dismissed, with costs. Bill dismissed. 179 320 CASES INCHANCERTt 1814. [ * 221 ] Vciober 3(1. Roosevelt and others against Thukman Thurman aminst Roosevelt and others. Where a cause is referred, by consent of parties, under an order ot Court, and the referees, who were two lawyers and a merchant, wars to decide all questions in dispute between the parties, as well matters of law as of fact ; and a question of law, as to a will, put in issue by the pleadings, and discussed before the referees, was decided uy them ; it seems this Court will not interfere with the award, unless a grosg and palpable mistake is shown. The words of a will are to be construed according to their natural sense, unless some obvious inconvenience or incongruity would arise from such construction. T., by his last will, after giving to his nephews, R., JV., S., iStc, each 1,000 pounds, as they came of age, devised two houses and lots, " with every right agreeable to the deeds of the same," to R., to be delivered to him as soon as he came to the age of 21 years ; and if he died " before he came to age and without male issue," he devised the same to J\r., " to be delivered to him as soon as he comes to the age of 21 years." "The first possessor, as soon as his first male child shall come to the age of 21 yeai's, it is my will that the right of the said houses be to him, his heirs and assigns, forever ; but not to be dis- posed of before his eldest son comes to age ;" whoever gets the houses, to have no claim to the 1,000 pounds, before left him, but his share to be equally divided with the other legatees. R. aiTived at the age of 21 years, biit had no issue. *It was held that, by the words " dying without male issue,'' R. took an estate tail, by thei English law, or an estate in fee under our statute; that the fee vested in R., on his attaining the age of 21 years or having male issue, either event being sufficient for that purpose.' That 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 re- striction on the power of alienation, and being repugnant to the nature of the estate, was void. THE plaintiffs, Nicholas Roosevelt, and Elisabeth Gil- christ, wife of Robert Gilchrist, and the defendant, Thur- man, are the nephews and niece of John Thurman, deceased, and his only surviving devisees and heirs at law ; and the defendant is the only surviving executor of the last will and testament oiJohn Thurman, who died in 1809. His will was dated in 1769. These were original and cross suits. The bill, in the first cause, was filed against the executor for an account as to his administration of the estate ; to settle some questions of law arising on the will ; and to obtain a discovery as to the title deeds, and the estate of which the testator died seised. The cross bill was to obtain a discovery, from the de- fendants, of the state of their accounts with the testator ; 180 CASES IN CHANCERY. 221 and for a settlement thereof, which it appeared had been laU. accompUshed. . ^^^s/—^^ By his will, the testator devised as follows : " I give to Roosevelt each of my brothers' and sisters' children, John, Ralph, THnRMin. Lucretia' and Elizabeth; to my sister Elizabeth, her chil- dren, Nicholas and Elizabeth ; to my sister Letty, her son, Samuel; to each of those children above named, as they come of age, 1,000 pounds; but should my estate, exclu- sive of the fast estate hereinafter named, not be sufficient to pay those legacies, they are to receive an equal portion of whatever their share shall be, share and share alike ; should any of them die before they come of age, that share is to be equally divided among the survivors. I give the *corner house I now live in, to my brother Francis's son, my [ * ^22 ] nephew Richardson; also, the house next dooi, where Jo- seph Cox now Uves, together with the ground, and every other building on the said corner lot, and the lot next it, adjoining Mr. Dunscomb's, whereon the house stands where- in Mr. Cox lives, with every right, agreeable to the deeds of the same, to be given him as soon as he comes to the age of 21 years; but should Richardson die before he comes to age, and without male issue, I give, as before described, the two lots and buildings to my , brother Ralph, his son, Ralph, my nepheW, to be delivered to him as soon as he comes to the age of 21 years. If both die before they come to age, and without male issue, I give, it to my nephew, John, Ralph's son. If all die before age, and without male issue, I give it, as before described, to my sister's son, Nicholas Roosevelt, to be delivered to him as soon as he comes to the age of 21 years. The first possessor, as soon as his first male child shall come to the age of 21 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 by him before his eldest son comes of age." " Whoever getjs the houses, to have no claim to the thousand pounds before left him, but his share to be equally divided among the surviving children before mentioned. The residue and remainder of my estate, whether real or personal, to be equally divided among my brothers' and sisters' children, to be paid them as they come of age." Richardson and John both died in the lifetime of the testator. Ralph, the next devisee over, entered, and took possession, on the death of the testator ; he is advanced in years, and has had no male issue. Thurman, in his bill, among other things, charged that he was the person described in the will of the tiestator, as Ralph, his nephew, son of his brother Ralph ; and that, by the death of Richardson, and by virtue of the said will, &c. 181 222 CASES IN CHANCERY. 1814. ^^ ^^^® entit.ed to an estate of inheritance in fee simple,, ab ..^^•■^y^^^ solute, of and in the two houses in the said will mentioned. ■ Roosevelt *The causes were referred, under an order of this Court ; Thurman ^^^' °" *^® ^^^^ oi January last, the referees made a report, I * 223 1 *^ P^'^* °^ which exceptions were taken by the plaintiffs in the first suit : 1st. That the referees, although the question could not fairly arise until the death of Ralph Thurman, the defend- ant, without male issue, who should attain the age of twenty^ one years, have decided that he took an absolute estate, in fee, in the premises ; and that, if that question could arise^ it was decided, by the referees, incorrectly. The 2d, 3d, and 4th exceptions were, that the referees make no award respecting sundry debts due to the testator, and divers bank shares and cattle which belonged to -the tes- tator, and are enumerated in the schedule annexed to the an- swer of the defendant to the original bill, and which matters, it was contended, were submitted to the referees for their determination, under the order of reference. The last exception was, that the referees had made no award as to the disposal of any personal property of the tes- tator, not enumerated in the schedules annexed to the an- . swer, which might, after filing the answer, come to the knovpl- edge of the executor ; whereas they ought to have awarded and directed that the same should be duly collected, and from time to time accounted for, by the executor, according to the will of the testator. Harison and Robinson, in support of the exceptions. Riggs, contra. For the plaintiffs, it was contended, that the intention of the testator was to govern in the construction of the will, and that, to discover that intention, the whole will must be taken together. (2 Bl. Com. 381. n. 13. 1 Vesey, 169. 1 Vesey,jun. 268. 270. 2 Vesey, jun. 105.) * 224 ] *That if the will had stopped at the words " if he die be- fore he come of age, and without male issue," it must be admitted that Ralph would take an estate tail under the English law, or an estate in fee under our statute ; but this was restricted by the subsequent clause, limiting the estate on condition that his first son comes of age. This clause manifestly showed, that the testator intended that the > estate should go over to his nephew", Nicholas Roosevelt, unless Ralph had a son who arrived at full age. ( Cro. Eliz 525. Talbot's Cas. 44. 1 Bro. 147.) This restriction is ' not to be rejected as repugnant to the will, for it is perfect- 182 CASES IK CHANCERY. -224 ly consistent with it ; and it was intended for the benefit of 1314. Roosevelt. To support this intention of the testator, the v_»->^^^«^ word " and" is to be read or. {Talbot's Cos. 44. 3 Atk. Roosevelt. 283. 4 Vesey, 311. 227. 3 Vesey, 103. 8 Finer, 181. thurmah. pi. 7. 182, pi. 11, 12. 15, 16. 186, pi. 51. 1 P- Wtns. 54. n. 1.) If the word " and " is not construed disjunctive- ly, the intention of the testator, that the first taker should arrive at the age of 21 years, without regard to his issue, and the provisions of the will, would be defeated. For the defendant, it was insisted, that, as the question now raised was put at issue by the pleadings, and was left to the decision of the referees, by the order of reference en- tered by the consent of the parties, it was now too late to object that the decision of the question was premature, after it had been argued and discussed before the referees. That all the other exceptions are not founded on any thing now before the Court, and no objections on those points were made before the referees ; and it was, therefore, too late and irregular to raise them here. The defendant, however, was willing that all assets that should come into the defendant's hands, subsequently to his answer, should be duly accounted for in the course of administration ; and the counsel for the plaintiffs expressed themselves satisfied that a saving to that effect should be inserted in the decree. *As to the construction of the will, it is said, that Ralph [ * 225 ] was to have an estate in fee, if he attained the age of 21 years, or had male issue ; and that, if he had such issue, he could not sell until his son was of age. A legacy of 1,000 pounds is devised to him, and is not that to be disposed of until after his death? It is admitted that he had a life es- tate ; is he, then, to lose the legacy, and get only a life es- tate ? Roosevelt is to have half of that legacy, and yet claims the fee after his death. Such was not the intention of the testator. He meant, undoubtedly, that the Vvhole of his estate should be settled when the devisees came of age. The word " and" is not to be read or, to carry the estate over ; the words create an estate in fee, or an estate in tail, in Ralph. An estate tail arises by implication, where the devise over is to the blood of the devisor, not where it is to a stranger. (Talbot's Cases, 1. 2 Vern. 324. 766. 8 Vin. Devise. 1 P. Wm. 605. Resol. 4. 1 Atk. 432. 2 Vesey, 243. 247, 248. Ambl. 355. 358. 385. 4 Term Rep. 82. 5 Term Rep. 335.) The Court will carry a general intent into effect, though it may defeat a particular intent. ( White bread v. St. John, 10 Ves. 152—154.) The restriction in the latter clause is repugnant to the es '83 22b CASES IN CHANCERY. 1814. *^'^5 before given in the former parts of the will, and a re- .^t—s^"*^^ straint upon alienation, and ought to be rejected as void. Roosevelt -p ^- The Chancellor. The last exception taken to the re- port was disposed of by arrangement between the counsel, It was agreed, on the part of the defendant, Thurman, that the decree should contain a provision, that the assets wJiich might subsequently come to the hands of the defendant, as executor, should be duly accounted for in the course of ad- ministration, and . this was all the security required on the part of the plaintiffs. As to the 2d, 3d, and 4th exceptions, they relate to some small matters of account said to have been omitted by the referees ; and there is nothing before * 226 ] *the Court to enable me to judge of the truth and force o( these exceptions. The objection to any such alleged omis- sions, ought to have been made to the referees on the making , up of their report. There remams for consideration the first, and which was the only material exception taken. This exception is, fhat the referees have determined that the defendant, Thurman, is entitled to an estate in fee in the two houses and lots mentioned in the report, whereas, they were not called on to decide this point, and, if they were, they ought to have decided it differently. It was suggested upon the argument, and, I think, not de- nied, that this point of law was raised, and discussed on both sides, before the referees. If this be so, it is now too late for the plaintiff to object to the jurisdiction of the referees over the question ; and it appears to have been a point put in issue by the pleadings, and proper for the consideration of the referees ijnder the submission. By the original bill, the defendant, Thurman, was called on, as executor, to account, among other things, for the rents and profits of the real es- tate whereof his testator died seised; and, by the answer, he sets up an absolute title in himself in fee, under the will, to the two lots which are the subject of discussion, and de- nies that he is accountable for the rents and profits of them. The reference was made, by consent, to one merchant and two gentlemen of the bar, with directions to state an account, and to debide on all questions in dispute between the par- ties, " as well matters of law as of fact." I have no doubt, therefore, that the question, of law, on the title of Thurmanlo the two houses and lots in New-Torlc, was in issue, and prop- erly embraced by the submission. After the parties have chosen to submit a point of law to gentlemen of the profession, it may be doubted whethei %ue Court ought to permit the discussion to be renewed here, without showing a case of gross and palpable mistidce. In 184 CASES IN CHANCERY. 22e thiti case, however, a reservation appears in the rule of sub 181 4. mission, by which the report was declared to be liable to v_^~v-*«-' ♦exceptions by either party, as a master's report would be. Roosetelt This reservation may have been intended to be confined to that thurmah. part of the submission which was the ordinary subject of refer- r # 227 I ence to a master, and this is, perhaps, the better construc- tion of the rule. But I do not wish to construe the rule rigorously, in this case, nor to deprive the- parties of a resort to the opinion of the Court on the question of law arising upon the will : and I shall only observe, that after such a reference as the one before us, the objection should be sup- ported upon pretty clear and solid grounds. As Richardson, the first devisee, and John, a devisee named subsequent to the defendant, died in the lifetime of the testator, their names may be considered as struck out of the will. The devise then is of the two houses and lots, "with every right agreeable to the deeds of the same, to be delivered to the defendant as soon as he comes to the age of 21 years; and if he di&^ before he comes to age, and without male issue," then the devise over was to his nephew, the plaintiff, Roosevelt. If the" will had stopped here, it seems to be conceded that the defendant would have taken an estate in fee, or an estate tail, under the English law, which by our statute is now turned into an estate in fee. The construction is plausible, that by the devise of the lots, "with every right" belonging thereto, under the deeds, the whole interest of the testator therein passed. He gives the houses with the ground, and every other building, and every right, agreeable to the deeds. The words are not free from ambiguity ; if he meant by them only a description of his estate, and not of his entire interest therein, yet the lim- itation of" dying without male issue" made it an estate tail. This construction of those words appears to be well settled. Wkitingv. Wilkins, 1 Bulst. 219. 8 Viner,'2.U. pi. 11. 4th Resolution, in 1 P. Wms. 605. 2 Bro. 558. 578. Boe v. Applin, 4 Term Rep. 82. Benn v. Slater, 5 Term Rep. 335. Stanley v. Leonard, Amh. 355.) The fee *vested on [ * 228 ] his attaining the age of 21, or having male issue. Either event was sufficient; for the word and, m. the devise, is not here to be read or, but is to be taken in its natural and grammatical sense. The case of Boe v. Jessep, (12 East, 288.) is to this very point ; and it was there held, that the words in a will are to be construed according to their natural sense, unless some obvious inconvenience, or incongruity, would result from so construing them. Why should we, as Lord Ellenborough observed, read or for and, and give the estate over, upon the happening of one only of the events, Vol. I. 24 185 ThurmAk. Q28 CASES IN CHANCERY. 1814. when no inconvenience would ensue by construing the- v_«-v— .fc^ word in its natural sense. In the case referred to, the de- , RoosETELT vise was to a natural son; "and if he die before 21, and without issue," then to the testator's father and the mother of the son; and, on a different construction, if the son had;' happened to die before 21, leaving issue, that issue could not have taken. So here, if Thurman had died under age, and - had left issue, the .reading the word and as or, would have ■, disinherited that issue as to the devise, and this could hardly, i have been the testator's meaning. To prevent such a result^i-ij the Courts have frequently reversed the rule by turning or into and. (2 Ves. 249.) But the principal difficulty has arisen from the subsequent part of the will, in which it is declared that " the first pos- sessor, as soon as his first male child should come of age, it is my will that the right of the said houses be to him, his heirs and assigns, but not to be disposed of by him before his eldest son comes of age." It is contended, on the part of the plaintiffs, that here is an executory devise engrafted ■ on the preceding fee ; and, on the part of the defendant, that it is only a temporary restriction intended by the testator upon the power of alienation, and that the restrictron is so far void as being repugnant to the nature of the estate. It appears to me, on an examination of the will, that the latter is the sounder construction. The limitation over, to ' [ * 229 ] Roosevelt, is upon the event of the defendant's dying *underi,ri age, and without male issue. There is no provision for the remainder over, on the event of the first male child dying under age, and the omission shows that the testator could not have had in contemplation the case of a limitation over, except upon the event of the nephew himself dying under age and without such issue. The will also directs, that " whoever gets the houses" shall have no claim to the 1 jOOOZ. legacy, but his share shall go to the other relations ; and, as the defendant takes the houses upon either construc- tion, he loses his legacy. It is not probable, when we recur to the known value of such a pecuniary legacy, at so early a period as the date of the will, that the testator intended that any estate in those two houses, short of a fee, should be a substitute for it. If we compare the several provisions in the will, it seems to have been the testator's general de- sign, that all the legacies and grants should vest at the age of 21. Thus, the pecuniary legacies of 1,000?. are to be paid as the legatees respectively come of age, and these very lots are to be given to the devisee (and three were named in succession) when he comes of age. So the limitation over is to vest when the plaintiff is of a^e ; and all the residue of the estate, real and personal, is to be divided, and paid tc 186 CASES IN CHANCER Y. 22? the residuary legatees at the same period. The existence 1814. of an executory devise, in this case, is not, then, in further- _<»-s^-«w ance of the uniformly declared intentions and policy of the iuosetelt wil". The idea of an executory devise is, where the testa- thukman tor gives absolutely to one, and, upon the happening of an event, gives the same estate to another. But here is no de- signation of the person who is to take, by way of executory devise, if the defendant should die without any male child being of age. It is not the plaintiff, Roosevelt, for the event had long bsfore happened, and must have happened, upon which the limitation to him was determined ; and he has, in consideration thereof, his share (being here a moiety) of the legacy, which the defendant lost on taking the estate. In short, the general scope or design of the will was to fix and *close all the interests, as soon as the objects of the testator's [ * 230 bounty came of age ; and this last strange and perplexed provision was not_ intended in favor of Roosevelt, (for it has no allusion to him,) but it seems to have been meant as a check to an improvident waste, or alienation of the estate, by the defendant, during the early part of his life ; and being an intention inconsistent with the rules of law, it must be rejected. I am, accordingly, of opinion, that the exceptions be over-^ ruled, and with costs, as to all, except the last ; and that the report be confirmed, with a prc^'sion in the decree as to future assets. Decree accordingly, (a) (a) Vide Campbell v. Tweinlow, (1 Price's Excheq. Rep. 81.) where the Court of Exchequer, in Englnjid, refused to interfere with the awt rd of a bar- rister at law, to whom the cause had been referred, both as to la w and fact, though the point of law decided by him waa, at least, doubtful. 18- 231 » CASES IN CHANCERY. 1814. Mask *MAN^ and others against The Executors of Mapn Executors and Others. [Afflrmed, 14 Johns. 1. Followed, 8a N. Y. 103, 106.] ' Parol evidence is inadmissible to supply or contradict, enlarge oi vary the vFordS of a will, or to explain the intention of the testator, except there is a latent ambiguity arising dehors the Will, as to the person of subject meant to be described ; or to rebut a resinUing trust. Where the testator bequeathed to his wife cdl the rest, residue and re- mainder of the moneys belonging to his estate, at the time of his decease, it was held that the word moneys must be underetood, in its legal and popular sense, to mean gold or silver, or the lawftd 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 pramisson/ note*, bonds and mortgages, or other securities ; there being nothing in the will, itself, to show that the testator intended to use the word in that extended sense. THE plaintiffs, as heirs and residuary legatees of David Mann, deceased, filed their bill against the widow and ex- ecutors. The testator, by his will, dated March 9, 1802, after directing his debts to be paid, and a legacy to his niece, Mary ' Connel, to be paid out of his personal estate, devised to his wife, and to her heirs and assigns forever, in fee, cer- tain lands and real estate, therein described ; and, also, be queathed to her all the rest; residue and remainder of thi moneys belonging to his estate at the time of his decease; and, also, his negro slaves, horses, stock, furniture, &c., de- claring that what he gave to her should be in lieu and bar oi her dower ; and exonerated his brother, Michael, from the payment of all moneys which he should owe to the testator at the time of the testator's decease ; and gave to his niece, Mary Holford, 500 dollars, to be paid out of the moneys arising from the sale of the residue of his real estate. Tlie testator also devised to the children of his brother, Michael, and his daughter, Mary, and to the children of his brothers, George and Matthias, and their heirs, &c., " all the rest, residue and remainder of his estates, real and personal, or [ * 232 ] *the moneys arising from the sale thereof, equally to be divided between them, share and share alike." And he empowered his executors to sell the residue of his real estate, &.c. ; and appointed his wife executrix, Daniel D. Tomplcins, Esq., Henry Brevoorf, Esq., and James Berian, executors of his will. The bill further stated, that the testator was seised in fee of divers other lands, beside those devised to his wife and died so seised, in July, 1811, and possessed of a coH' siderable personal estate, over and above the moneys belong ing to hini, and beside the articles bequeathed to his vfif^ and the money due from his brother, Michael^ viz. bonds, 188 CASES IN CHANCERY. 232 mortgages and other securities, and outstanding debts. That 1814. the executors have possessed themselves of the personal es-- ^..^-s,— *.^ tate of the testator, and have taken the rents of the real es- Mann tate before the sale thereof, and of the other parts of the KjEcoTORi real estate not sold. The plaintiffs prayed for a discovery of Mann and account of the personal estate, and of the rents and profits of the real estate, and particularly of the outstanding debts due to the testator at the time of his decease. Tlie defendants, in their answer, admitted the fact stated in the bill, and made the discovery called for. They stated that they had sold all the real estate, except the land spe- cifically devised, and had divided the proceeds according to the directions of the will ; that the personal property, exclu- sive of money, choses in action, and the specific/ legacies, amounted to 1 ,968 dollars ; that the testator left in cash, 500 dollars, and in bonds, mortgages and notes, to the amount of 13,735 dollars and 80 cents, and that not only all the money, but all the bonds and securities, had been al- lowed to be retained by the widow of the testator, the ex- ecutors supposing that they passed to her, under the clause in the will, devising to her " all the rest and residue of the moneys belonging to the testator's estate " And this pre- sented the only point in the cause, nameiy, wnether the widow is entitled to the securities, under the will, or whether *they do not go, as part of the residue of the estate, to the [ '* 233 J plaintiff. Several witnesses were examined on the part of the de- fendants, to shovv the intention of the testator. Harison and Robinson, for the plaintiffs, contended, 1. That parol evidence was inadmissible to explain the mean- ing of the testator, and ought to be suppressed ; and, to this point, they cited Talbot's Cases, 240. Brown v. Sel- wyn, and n. 2 Freeman's Rep. 62. Str. Rep. 1260. 2 Vesey, 217. 4 Vesey, 616. 2 P. Wms. 420. 3 P. Wms. 51. 353. 4 Bro. P. C. 180. (old edit.) 1 Atk. 558. 2 Atlc. 373. t 2. That the word " moneys" does not include choses in action; and to this point were cited 1 P. Wms. 575. 579. 1 Eq. Cas. Abr. 201. 2 Vernon, 688. 747. Ambler, 641. Bac. Mr. tit. Legacy, (B. 3.) 1 Vesey, 187. 273. 3 Atlc. 232. T. A. Emmet, contra, insisted, that the words, " rest and residue of the moneys belonging to the estate," meant some- thing more than the cash in hand at the time of the testator's death; that it had been decided in England, that banTc notes, m the desk of the testator, would pass as money, and that 189 236 CASES IN CHANCERY. 1814. explanation, could have had no operation. But in that case >..^-s^-^^ as there was sufficient to satisfy the devise according to the Mann Ordinary meaning of the description, collateral evidence, to Executors show that the testator meant to use the description in a OF Makn. more extensive sense, w^as rejected. There was a similai decision in Doe v. Brown, (II East, 441.) and the two cases are strong in respect to this point. My conclusion is, that the parol proof cannot be received or permitted to enter into the consideration of the case ; for it will readily be admitted, that to serve the particular pur- pose, or meet the supposed hardship, of an individual case, we ought not to break in upon the established principles of law. The observation of Lord Talbot, in one of the cases referred to, contains the true and wise doctrine on this sub- ject, that it is better to suffer a particular mischief than a general inconvenience. The only question, then, in this cause, is on the construc- tion of all the will itself. I do not perceive, from a perusal of the will, any reason for construing the word moneys beyond its popular and legal meaning. It means gold and silver, or the lawful cir- culating medium of the country. (^Co. Litt. 207. a.) It may be extended to bank notes, when they are known and approved of, and used in the market, as cash. Perhaps it [ * 237 ] would be *proper to extend the term to money deposited in bank, for that is cash, and considered and used as cash placed there for safe keeping, in preference to the chest of the owner. It was mentioned by the counsel, in the recent English case of Hotham v. Sutton, (15 Vesey, 319.) that, under a bequest of " money," money and bank notes, in the possession of the testator, or at his banker's, will pass, and nothing else ; and they said it had always been so consider- ed ; and the chancellor observed, that stock never passed by the word money. Beyond these bounds the word cannot be extended, unless it be accompanied with explanalioiiF showing that the testator alluded to other property than his cash, and defining that property as money at inteies,t, on bond and mortgage, or money in the public funds. If he uses the word absolutely, without any such accompanying qualification, or reference, it cannot be construed beyond its usual and legal signification, without destroying all certainty and precision in language, and involving the meaning of the will in great uncertainty. The difficulty would be to know what precise check to give to the force of the term, after we have once moved it from its seat ; vires acq^drit eundo. Shall it be confined to any particular species oi description of choses in action ? or shall it embrace, pro- miscuously, every species of debt and security— book debts, 192 CASES IN CHANCERY. 231 notes, bonds, mortgages, judgments, turnpike, manufac- 1814. turing, insurance, bank, and national stock ? or must we go ^..^^^-^.^ into a difficult inquiry to ascertain which of these securities Mann was taken for cash lent, and which for goods or lands sold, exjcdtors or services rendered, and which as a compensation for torts of Makn. or other causes of action ? It appears to me that it would contravene the rules of law, and the policy of the statute, and be of dangerous consequence, to depart from the com- mon and fixed meaning of the word moneys, and which meaning the testator must be presumed to have understood ; especially as the bequest will still be effectual and produc- tive. The cases of Rose v. Bartlett, (^Cro. C. 292.) and of Day V. Trig, (1 P. Wms. 286.) *may be cited to show, that [*238 where a will can have effect, words are not to be strained to enlarge the will ; and that a lease for years will pass, under a devise of all my lands, if the testator had no fee simple estate; and this, in order to prevent the devise from being void ; but if he had an estate in fee, the chattel interest will not pass. The testator, in the present case, understood how to explain the word moneys, when he meant to de- signate other property than his cash in hand. He uses it, repeatedly, in the subsequent parts, of the will, but it is always with a clear and certain reference to the subject matter to which it is to be applied ; as when he discharges his brother Michael "from the payment of all moneys which he shall owe me at my decease ;" and when he bequeaths to the children of his brothers the remainder of his estate, " or the moneys arising from the sale thereof." There is a settled distinction, on this subject, of the con- struction of wills, between cash or money, and choses in ac- tion ; and this increases the difficulty of the attempt which has been made to confound them. Thus, cash will pass by a bequest of movables ; but the better opinion, according to Godolphin, (Orphan's Legacy, p. 417. s. 9.) is, that money at interest will not so pass, because it is a debt, and not cash. So, a devise of goods and chattels, in such a place, will not include a bond being there, as it has no locality ; but it will include cash, and also bank notes, because they are consid- ered quasi cash. (Chapman v. Hart, 1 Ves. 271. Moore V. Moore, I Bro. 127. Fleming v. Brook, 1 Schoale 8f Le- ,froy, 318.) Nor is there any reason to infer, from the will, that due provision is not made for the widow, without permitting her to sweep away, under the denomination of money, all the notes, bonds and mortgages belonging to the testator. The testator gives to her, in fee, his dwelling-house and six acres of land lying on the Bowery road, in the city of New-York. He also gives to her, in fee, two other lots inJhe same place, Vol. I. 25 193 236 CASES IN CHANCERY, 1814. explanation, could have had mo operation. But in that case <^.^-v^,-,fc^ as there was sufficient to satisfy the devise according to the Manh ordinary meaning of the description, collateral evidence-, to Executors show that the testator meant to use the description in a OF Makn. more extensive sense, was rejected. There was a similar decision in Doe v. Brown, {\\ £a«f, 441.) and the two cases are strong in respect to this point. My conclusion is, that the parol proof cannot be received or permitted to enter into the consideration of the case ; for it will readily be admitted, that to serve the particular pur- pose, or meet the supposed hardship, of an individual case, we ought not to break in upon the established principles of law. The observation of Lord Talbot, in one of the cases referred to, contains the true and wise doctrine on this sub- ject, that it is better to suffer a particular mischief than a general inconvenience. The only question, then, in this cause, is on the construc- tion of all the will itself. I do not perceive, from a perusal of the will, any reason for construing the word moneys beyond its popular and legal meaning. It means gold and silver, or the lawful cir- culating medium of the country. (Co. Litt. 207. a.) It may be extended to bank notes, when they are known and approved of, and used in the market, as cash. Perhaps' it [ * 237 ] would be *proper to extend the term to money deposited in bank, for that is cash, and considered and used as cash placed there for safe keeping, in preference to the chest of the owner. It was mentioned by the counsel, in the recent English case of Hothapi v. Sutton, (15 Vesey, 319.) that, under a bequest of " money," money and bank notes, in the possession of the testator, or at his banker's, will pass, and nothing else ; and they said it had always been so consider- ed ; and the chancellor observed, that stock never passed by the word money. Beyond these bounds the word cannot be extended, unless it be accompanied with explanation." showing that the testator alluded to other property than his, cash, and defining that property as money at inteaes,t, on bond and mortgage, or money in the public funds. If he uses the word absolutely, without any such accompanying qualification, or reference, it cannot be construed beyond its usual and legal signification, without destroying all certainty and precision in language, and involving the meaning of the will in great uncertainty. The difficulty would be to know what precise check to give to the force of the term, after we have once moved it from its seat ; vires acquirit eundo. Shall it be confined to any particular species or description of choses in action ? or shall it embrace, pro- miscuously, every species of debt and security— book debts, 192 CASES IN CHANCERY. 237 notes, bonds, mortgages, judgments, turnpike, manufac- 1814. turing, insurance, banlt, and national stock ? or must we go v_^->./.-^^ into a difficult inquiry to ascertain which of these securities Mann was taken for cash lent, and which for goods or lands sold, executors or services rendered, and which as a compensation for torts op Mann. or other causes of action ? It appears to rae that it would contravene the rules of law, and the policy of the statute, and be of dangerous consequence, to depart from the com- mon and fixed meaning of the word moneys, and which meaning the testator must be presumed to have understood ; especially as the bequest will still be effectual and produc- tive. The cases of Rose v. Barthtt, {Cro. C. 292.) and of Vay v. Tng, (1 P. Wm.s. 286.) *may be cited to show, that [*238 vvliere a will can have effect, words are not to be strained to ervlarge the will ; and that a lease for years will pass, under a devise of all my lands, if the testator had no fee simple estate ; and this, in order to prevent the devise from being void ; but if he had an estate in fee, the chattel interest will not pass. The testator, in the present case, understood how to explain the word moneys, when he meant to de- signate other property than his cash in hand. He uses it, repeatedly, in the subsequent parts, of the will, but it is always with a clear and certain reference to the subject matter to which it is to be applied ; as when he discharges his brother Michael "from the payment of all moneys which he shall owe me at my decease ;" and when he bequeaths to the children of his brothers the remainder of his estate, " or the moneys arising from the sale thereof." > There is a settled distinction, on this subject, of the con- sti-uction of wills, between cash or money, and choses in ac- tion ; and this increases the difficulty of the attempt which has been made to confound them. Thus, cash will pass by a bequest of movables ; but the better opinion, according to Godolphin, (Orphan's Legacy, p. 417. s. 9.) is, that money at interest will not so pass, because it is a debt, and not cash. So, a devise of goods and chattels, in such a place, will not include a bond being there, as it has no locaUty ; but it will include cash, and also bank notes, because they are consid- ered quasi cash. (Chapman v. Hart, 1 Ves. 271. Moore V. MoOre, 1 Bro. 127. Fleming v. Brook, 1 Schoale ^ Le- ^froy, 318.) Nor is there any reason to infer, from the will, that due provision is not made for the widow, without permitting her to sweep away, under the denomination of money, all the notes, bonds and mortgages belonging to the testator. The testator gives to her, in fee, his dwelling-house and six acres of land lying on the Bowery road, in the city of New-York. He also gives to her, in fee, two other lots inJhe same place, Von. I. 25 193 239* CASES IN CHANCERY 1814. SOUVEKBYE V. Ardek. *containing an acre and a half; and he further gives her all his household furniture, horses, farming stock, &c. The expression of all the rest, residue and remainder of the money? &c. belonging to his estate, leaves the question of construc- tion precisely the same as if those words had not been used, for the question still occurs, What Were his moneys ? The words rest, residue, &c., seem to be without use or mean- ing, as there used, for there were no moneys, previously alluded to, except the 1,000 dollars bequeathed to his niece, Mary ; and that sum was to be paid, at large, out of his personal estate; and it is not contended that the word "moneys" can have such an extensive sense. The result of my opinion is, that the executors must ac- count to the plaintiffs for the bonds, mortgages and notes left by the, testator ; and a reference must be made to a master, to take and state an account between the parties, in which the defendants must be allowed for whatever pay- ment and expenses are justly chargeable to the property ; and be chargeable with all the securities aforesaid ; and the question of costs, and all other questions, to be reserved until the coming in of the report.' Decree accordingly, (a) (a) This case, which was decided the 27th pf September, 1815, has teen printed out of its chronological order ; it should have followed the case of Woods V. Monell, (post, p. 507.) The error, however, is not deemed of suffi- cient importance, to compensate the trouble and expense of correction. [ * 240 ] *SoCvERBYE and Wife against Arden and others. [Followed, 2 Sandf. Oh. 406. See post *266, 336.] Declarations of the intention, or understanding, of a grantor, different from the intent apparent on the face of a deed, or of conditions an- nexed to it, to be effectual, must be made at the time of executing it. 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. So, a mistake in drawing a deed must be clearly proved. If a deed has been duly delivered in the first instance, the subsequent custody of it, by the grantor, will- not destroy the effect of the delivery. A deed may be delivered to a third person, as the servant, or bailee, of the grantee, and such delivery will be valid. A voluntai-y settlement, fairly made, is -always binding, in equity, upon the grantor, unless there be clear and decisive proof that he never parted, nor intended to part, with the possession of the deed ; and, if he retain it, there must be other circumstances beside the mere fact of his retaining it, to show that it was not intended to be absolute. October 3il, THE plaintiff, Eliza Bouquet, and her former husband, Vital Antoine Servant Grangiac, filed their bill against 194 CASES IN CHANCERY. 24fl ■ James Arden, De Witt Clinton and Richard D. Arden, to 1814. compel a conveyance, to the plaintiffs, of a lot of land in the city of New-York, and, also, for an account. The bill charged that the defendant, James Arden, and Eliza, his wife, the father and mother of the plaintiff, Eliza Bouquet, in the year 1804, conveyed to De Witt Clinton and Richard D. Arden, a certain house, warehouse and lot of land, extending from Greenwich street into Washington street, in trust for the said Eliza Bouquet ; that the deed was duly acknowledged by the grantors, and at, or about, the time of the execution of it, delivered to the trustees. It was further stated, that Eliza Arden died about the 4th of August, 1806 ; and that Eliza Bouquet, on or about the 26th of January, 1809, married with Grangiac , and that the trustees had paid to James Arden, or permitted him to receive, the rents and profits of the trust estate, of which they refused to render the plaintiffs an account, or to pay *them what was due thereon, or to let them into possession [ * 241 of the estate, and the receipt of the rents and profits. The defendants each put in a separate answer. James Arden stated, that on or about the 25th of November, 1809, he was seised in fee of and in a certain messuage and tenements, and that he, and his wife, Eliza, being minded to make some provision for their daughter, the plaintiff, came to a resolution to execute a deed or conveyance, for the said messuage and tenements, in such a way that the same should not, after his decease, vest in her absolutely, so as to be at her disposal, but tha,t the same should go to her chil- dren, if she had any living at her decease, and, if not, return to his family. He further stated, that it was not then, nor ever was, his intention, or design, to part with the possession of the said lots, or to give up the rents and profits thereof, nor to vest the estate in such a manner as that it should go to the plaintiff, Eliza Bouquet, even after his decease, in case she married against, or without, his consent or approbation. The defendant applied to a counsellor at law. to draw a deed conformable^ to this his intention, which he supposed was drawn accordingly. The deed was upon the following trusts; that is to say, upon trust and confidence, that EHza Bouquet should stand and be seised of the premises thereby granted, for and during her natural Ufe ; in further trust and confidence, that in case Eliza Bouquet should die, leav- ing lawful issue, that then the trustees, Richard D- Arden and De Witt Clinton, should stand and be seised of the prem- ises in trust, for such child, or children, of the body of Eliza Bouquet, lawfully to be begotten, in fee simple ; and for want of such children, then in trust for all, and every the person, or persons, their heirs and assigns, forever, as should be en- 195 241 CASES IN CHANCERY. 1814. titled to the same by the laws of the state of JScw- York, in >..,.»-s,-^_^ case he, the said James Arden, had died intestate, and the SouvERBTE deed had never been made. The deed was executed in the ^ ^- . presence of two witnesses, and the defendant says, that he I * 242 1 thinks it probable, *and believes, that he and his wife may have used the formal words of delivering the deed ; but that neither of the trustees of Eliza Bouquet were present at the execution of it, and that it was not acknowledged by him, or his wife, before an officer authorized to take the acknowl edgment thereof. The deed remained in the possession of the defendant until about the 6th of January, 1809, 'when, it being expressed to him that his daughter, and her sister, foi whom he had made a similar provision, entertained some ap- prehension that the deed, in case of his death, might be lost or destroyed, he consented to place the same in the hands' of De Witt Clinton, for their benefit ; that he accordingly dehvered this deed, with another deed, intended for the ben- efit of his other daughter, to Clinton; and, at the time of the delivery, stated to him, in the presence of his present? wife, and both his daughters, that it was to be explicitly un- derstood that the income of the property should enure to him during his life ; and that if either of his daughters should marry without his consent or approbation, that the deed, mtended for her benefit, should not operate, or be of use, oi to that effect, according to his best recollection and belief; and these expressions, he supposed, were sufficient to create a conditional delivery of the deed, to take effect only after his decease. The, defendant further stated, that the yearly value of the estate was about 1,500 dollars, which he had received, ever since the date of the deed, to his own use', paying taxes, &c., causing the premises to be insured, and paying the premium of insurance. .Richard D. Arden, in his answer, does not profess to state any thing from his personal knowledge; but as far as his answer goes, it is in confirmation of that of James Arden. De Witt Clinton, in his answer, stated, that on or about the 6th of January, 1809, he, at the request of the defendant, James Arden, went to his house, and when there, Arden in formed him, that he had requested him to call, with a view I * 243 ] *of depositing in his hands two ^several deeds, for the benefit of his daughters, Louisa and Eliza; and that, thereupon, Arden, in the presence of his wife and daughters, delivered . to him two deeds, one for each of his daughters ; the deeds were enclosed in one envelope, which was labelled, or en- dorsed, ns follows : " Two deeds, viz. one to Louisa Am , Arden, and one to Eliza Bouquet Arden, each for one lot of ground in Greenwich street, through to Washington street, ] lo Bichard D. Arden and De Witt Clinton, Esqrs., in trust, * 196 CASES IN CHANCERY. 2i;* .805." Immediately before, or at the time of the delivery, 1314. Arden stated, in the presence of his wife and daughters, that .,^^--,/-«^ the property intended for each of his daughters was worth Souverevp upwards of 21,000 dollars, and that the annual rent was 1,500 AnriEri. dollars ; and that he wished it to be explicitly understood, that the income of the property should enure to him, during his life ; and that if either of his daughters should marry with- out his approbation, that the deed intended for her benefit should not operate. Both the daughters acquiesced in the declaration or arrangement, that the rents of the property should enure to James Arden during his life ; but neither of them acquiesced in the declaration or arrangement, that, if either of them should marry without his approbation, the deed intended for her benefit should not operate. There was no cei'tificate of acknowledgment upon the deed. The de- fendant denied that any application had been made to him, by the plaintiffs, relative to the property, or the rents and pro.ats, or to an account thereof, or the receipt and application thereof; and stated, that shortly after the marriage of the plaintiff, Eliza Bouquet, with Grangiac, the defendant, James Arden, requested him to deliver up the deed to him, and offered to indemnify him from any pecuniary loss in conse- quence thereof; but this he refused to do. . After the cause was at issue, Grangiac died, and it was then continued in the name of Eliza Bouquet, the surviving *plaintiff, and after her marriage with the plaintiff, Souverhye, [ * 244 | in their joint names. It appeared from the evidence, that the deed in question, together with one for the benefit o{ Louisa Ann Arden, (after- wards Sterry,') was executed on the 25th o{ December, 1805, in the bedroom of Eliza Arden, who was then confined by sickness ; and it is expressly stated, by several witnesses, that Eliza Bouquet and her sister Louisa were present. The plaintiff, Eliza Bouquet, married Grangiac on the 22d of January, 1809, and it was the general opinion of the wit- nesses, from the notoriety of the subject in the family, that he knew of the settlement which had been made by Arden on his daughter. Alexander BleecTcer, who was one of the subscribing wit- nesses to the two deeds, {A. J. Hamilton, who was examined, was the other,) stated, that he did not remember reading, or iiearing them read, and that they were not put into the hands of the plaintiff, and Louisa, but that they were taken by James Arden, and that he did not know what became of them after- wards. He, however, said, that his recollection was faint as to the circumstances attending the execution ; and Agnes D. Braine, who was alsp present, said, that James Arden read 197 244 CASES IN CHANCERY.. 1814. the two deeds aloud vn succession, and after they were exe -^-^—Nr-^^ cuted, gave them to Eliza Arden, his wife. SouvEKBYE Louisa Ann Sterry testified, that Eliza Arden, her moiher, Akden. previously to her death, used frequently to express a very anxious wish to her father, James Arden, that he would exe- cute deeds making a settlement on the plaintiff and witness, and often urged him to have the two deeds in question signed, and that when the same was done, her mother expressed very great satisfaction on the subject, and said that she was very happy that they were thus handsomely provided for. The witness further testified, that at the time when the deeds were executed, James Arden handed to the witness, and her sister, the plaintiff, their respective deeds, which they laid upon the ledge of a case or wardrobe standing in the room. [ * 245 ] *The witness soon after took and locked up her own deed in her own bureau, but the plaintiff's deed remained in the same place until after the death of her mother ; while it- re- mained there, her father used to come into the room, which the witness and her sister occupied as their bedroom, to get papers which he kept locked up in the lower part of the case or wardrobe, and upon seeing the plaintiff's deed lying upon the ledge, he observed, that it was careless to leave it so ex- posed, whereupon the plaintiff soon afterwards locked it up. The witness stated, that she delivered her deed to her father for safe keeping, and supposed that her sister, the plaintiff, had done the same, or that it was taken by her consent for that purpose. The witness further stated, that at the time the deeds were delivered to Clinton, her father said that she and the plaintiff must marry with his consent, and that she; the witness, immediately replied, " Oh no, I will not agree to that," or words to that effect, and supposed that her father did not speak seriously. The witness said, that neither she nor her sister supposed that the property would be forfeited by their marrying without their father's consent. Agnes D. Braine, a witness before mentioiied, testified, that, when the deeds were executed, Arden gave them both to his wife ; but the witness, after the death of Mrs. Arden, frequently saw the deeds lying on the ledge of the case be- fore mentioned in the bedroom of the plaintiff, Eliza Bou- quet, and her sister Louisa, and was present when they com- pared their deeids together, Louisa reading aloud her deed, and the plaintiff and witness at the same time looking over the other ; they then laid down the deeds carelessly in the same place. The witness further stated, that, afterwards, while the witness was sitting with the plaintiff and her sister in the same room, James Arden came into the room, and took some papers out of the lower part of the case, and seeing the deed* 198 CASES IN CHANCERY. 245 n question lying as before mentioned, said, " Girls, how can 1814. i/ou be so careless with your deeds ?" to which Louisa answered v_<*-n,-->»_' that they were safe enough *there, when he replied, " If you SonvERBTE do not know how to take care of them, I will do it for you," or ABrEs. words to that import, and Louisa replied, " So do," or " So r* 246 1 you may," or words to that effect, whereupon Arden took them out of the room, but what became of them afterwards the wit- ness did not know. The witness also testified, that one day afterwards the plaintiff observed to her father, that she was fearful he had given the deeds to Richard Arden, (one of the defendants,) and that if he had, Richard was not too good to burn them. Arden said he was surprised she should imagine any such thing ; that Richard had not got the deeds : whereupon Louisa expressed a wish that he would put them into the hands of De Witt Clinton to keep, to which he re- plied, that he would do so, if that would make her content. Elizabeth Talbot testified, that before the death of Eliza Arden, the witness visited her in her bedroom, when she pointed to some papers on the desk or secretary, as being the deeds to her daughters, which the witness took up, and looked at what was written on the back of them, but does not now recollect what it was. Richard D. Arden was examined as a vvitness on the be- half of James Arden, under an order of the Court, and stated, that he saw the deeds shortly after the execution of them, and before the death of Eliza Arden, in the before-men- tioned case or secretary, where he understood, and believes, they were left by James Arden at the time ; that the case consisted of an upper and lower part, the upper part being something like a clothes' press, or wardrobe, and the lower part consisted of drawers, the upper one of which being drawn out, and the front part let down by moans of a spring, formed a secretary or place for writing, and keeping papers ; that it was in the secretary part that he saw the deeds both before and after the death of his mother ; that the keys of both parts of the case had been left with the plaintiff, and her sister Louisa, after the death of their mother, by her re- quest, and that they, being in possession of *the keys, had [ * 247 ] access to the deeds, and might have taken them into their hands while they remained in the room, but that neither of them had possession of them other than as a clerk might be said to have possession of papers, which were accessible to him by means of their being open or exposed in the office or house where he should be employed. James Arden, after- wards, took the deeds from the bed room, and deposited them in his desk, in his office, being the same place where they were kept aftor they were drawn, and before they were signed. J 99 i>47 CASES IN CHANCERY. i814. -^* ^*^^ Clinton was also examined under an crder of tht v_^-v^-^w' Court, in behalf of the defendant, James Arden, but his dep SoDVERBTz osition was, in effect, the same as his answer, and, therefore Akden '^ ^^^ necessary to be stated. A considerable part of the evidence consisted of the dec- larations of James Arden, and Eliza, his wife, as to the intent with which the deeds were executed, and was also intended to prove that his daughters knew of, and acquiesceil in the condition^. S. Jones, jun., for the plaintiff. 1. The deed was duly delivered to the plaintiff, at the time its execution was wit nessed. A deed may be duly executed, though the grantor takes it back into his custody ; the title passes, and the deed cannot be avoided, but by matters subsequent. (13 Vin. M. (K) 22— (L) 24. pi. 3. Cro. Eliz. 7. Shelton's case.) 2. The delivery to Clinton was absolute in law. There can be no conditional delivery of a deed, except as an escrow. Now, it could not be an escrow, for it was a delivery to the party herself, that is, to her trustee, for her. (Noy's Rep. 6. Hobart, 246. 9 Co. 137.) Again, why execute the deed, if he did not mean to deliver it ? 3. There is not sufficient evidence of a parol agreement al the time ; and if it was made out with sufficient certainty, i' was void. The conditions relied on were not made at the [ * 248 ] *time of the first execution of the deed ; these conditions were after thoughts of the grantor. The nature of the deed is attempted to be altered and qualified by parol proof, whiclj is clearly against every principle of law. The deed is abso- lute on .the face of it: as a bargain and sale, it operates by way of use. Such a reservation, if contained in the deed, would have made it v6id. The subsequent agreement is a parol reservation of a life estate. A person may, by will, transfer the fee after his death, but he .cannot do it by deed, unless there is some previous estate. The condition is re- pugnant to the grant, and must avoid it. (2 ^nd. 64. Pop- ham, 49. Moore, 687. Cro. Eliz. 344. Siderf. 32.) If the grantor had died, after the delivery to Clinton, and before the marriage of his daughter, it would have been a valid deed. Thei subsequent condition depended on the will of the grantor solely. It was a power of revocation, at his pleasure, and resting in parol. Again, this agreement, or condition, was void by the statute of frauds, (1 H. Bl. 289. 3 mis. 215. Cowp.41. iFesey, 317. 3 1^7-0.168. Str. 1261. Bl. Rep. 1249. 4Bro.5U. 5 Ven. Contract, (G) pi. 26.) To allow a solemn deed to be defeated by parol proof of a subsequent condition, would be of dangerous consequence 300 CASES IN CHANCERY. 24& (2 ^*. 383. I Vesey,jun. 241. Sugd. Law of Vend. QS, 1814 89, 90;) • -.,^N/-^ The defendant cannot, by his answer, correct a mistake Soov^EBrz in his deed. If he could show a mistake, and wished it to aeden. be corrected, he should have filed his bill for that purpose. Again, a delivery to a cestuy que trust, is a good delivery of a deed. (Jenk. Cent. 195, pi. 2. 13 Vin. Ah. 22. pi. 12.) A deed of bargain and sale operating by way of use, the use must be in the grantee ; for a use in the bargainee will net feed a use to the bargainor ; though deeds which operate by way of transmutation of possession may admit of a differ- ent doctrine. (Jackson v. Myers, 3 Johns. *Rep. 388. San- [ * 249 ] ders on Uses, 129. Dijer, 155. a. 1 Co. 136. b. 137. a.) There is no provision, in this case, for the estate going over, in case the condition was not performed. Harison and Harris, contra, contended, 1. That there was no delivery of the deed, at the time of its execution, in 1805. The answer, which is equivalent to the oaths of two witnesses, denied the delivery. The intention of the grantor, to annex the condition to the delivery, was manifest ; and a dee4 may be delivered on conditions. The statute of frauds does not apply to such a case. The only delivery, if any, was in 1809, to Mr. Clinton; and the condition of that delivery is fully proved. The defendants being called on to account, and acting defen- sively, may give parol evidence. (14 Vesev, 519. 7 Vesey, 219. 6 Vesey, 332, 333, 334. 1 Vesey," AbQ.) Though the rule might be otherwise, if the defendant was seeking an execution of the agreement. (4 Vesey, jun. 519. 2 Vesey, 219.) There was no ground of equity on which this Court can interfere to help the plaintiffs, at least, during the lifetime of the father. No rents were due at the time the bill was filed, and none ever came to the hands of either of the trustees. They were competent witnesses, being made defendants for form sake only. Clinton fully proves that the condition of the delivery to him, that Arden was to have the rents and profits during his life, was fully assented to by the daughters. The very fact of this delivery, in 1809, is evidence that the deed had not been delivered before. In the case of Villers v. Beaumont, (1 Vern. 100.) the party was not to have possession during life. The casts of voluntary settlements are those in which they were to take place after death. Where a deed is deposited with a trustee, in trust, to receive the rents and profits during his life, there is no case Vol. I. 26 201 250* CASES IN CHANCERY. 1814. *where ^a Court of equity will force a trustee to account, contrary to the terms of the trust. Though, at law, the delivery would take effect, free from these conditioijs, yet, in equity, it will be otherwise, and the trustee will be considered like a third person at law, in the case of an escrow, and the terms of the delivery of the deed be supported. Where a party comes into equity, to com- pel a trustee to perform, the Court will look at the intent, and not compel a trustee to act against the intent of the parties. The defendants may show the intent, as to the conditions, in equity; and so far, as ground of equitable relief, they may show the mistake, in not inserting the conditions in the deed, agreeably to the instructions given to the counsel for that purpose. The real sense and mean- ing of the parties must prevail here, and the Court will not deprive the grantor of the rents and profits during his life,, contrary to that intent. A consideration of one dollar, will make a resulting trust enure to the grantor, in a deed of bargain and sale. This Court may, in its discretion, relieve against a volun- tary deed. (Free, in Ch. 84.) Riggs, in reply, insisted, that the. sealing and formal execution of the deed, was the perfection of the act ; and the burden of proof lay on the grantor to show, clearly, thai there was no delivery, at the time, contrary to the face of the deed. (JVheelwright v. Wheelwright, 2 Tyng's Ma^. Rep. 447.) Arden, in his answer, did not pretend that there was any explanation given to the witnesses, at the time of the execu- tion of the deed, of any terms or conditions different fiom what appeared in the deed itself. If any such conditions were intended, it was the duty of the grantor to explain them to the witnesses at the time. The evidence of the two subscribing witnesses, is strong and conclusive as to the solemn execution and delivery of the deed, without any * 251 ] terms *or explanation of the grantor, being declared or expressed. The mother of the grantee died in August, 1806, . and until that time, the deed was in a drawer, under tlie power and control, if not in the actual custody, of the grantee The parol evidence was inadmissible ; it was against the statute of frauds. A trust cannot be created by parol. The Chancelloe. Several points have been raised re- spectmg the deed mentioned in the pleadings. 1. It is contended, on the part of the plaintiffs, that the. deed was perfected by the sealing and delivery, on the 25th of December, 18D5, and that the estate then passed and 202 CASES IN CHANCERY. 251 rested m the grantees, for the uses and purposes therein 1814 ieclared. -.--^^v-^— ' In my opinion, this allegation is fully and effectually sup- SonvEEBT» ported by the proof. Akdes The answer of the grantor, to this point, js, " that he and his wife signed, and, as he believes, sealed the deed, at or about the time it bears date, in the presence of two witnesses ; and he thinks it probable, and believes, that he and his wife may have used the formal words of delivery." He says, further, that he had applied to Abraham Skinner to draw the deed, so as not to part with the possession and profits of the lot during his life, and so as that the same should never vest in the plaintiff, his daughter, if she should marry without his consent and approbation ; that he supposed the deed was so drawn ; and that it remained in his possession and power from the time it was so signed and sealed, until the delivery to Mr. Clinton, in January, 1809. The first reflection that arises upon this answer is, that it does not aver or pretend that any explanation was given to the witnesses, or to the plaintiff, or others, at the time of 'he execution of the deed, of the understanding or intentions jf the grantor, as to its operation. It was his duty to have spoken then, and to have declared his intention, if he had any, inconsistent with the natural *and necessary result of that solemnity. The general prin- [ * J52 ciple of law is, that the formal act of signing, sealing and delivery, is the perfection and consummation of the deed, and it lays with the grantor to prove clearly that the appear- ances were riot consistent with the truth. The presumption is against him, and the task is upon him to destroy that presumption, by clear and positive proof, that there was no delivery, and that it was so understood at the time. If he understood, or supposed, that the deed was drawn confor- mably to his views, (as he asserts,) there was no need of any check to a complete and valid delivery, and he must have intended such delivery, as the deed would always have carried within itself the evidence of his intentions. I should conclude, therefore, from the answer alone, that there was a delivery of the deed, in judgment of law, in December, 1805. If there was a mistake in the drawing of the deed, the defendant had not undertaken to show it. He has not examined Skinner, who drew the deed, and he does not say that he had not perused the deed before he signed it. The presumption is irresistible that he must have known of its contents, and being of competent capacity to do business, he is justly chargeable with that knowledge. The mistake must be clearly and strongly proved, before the Court can correct a deed or writing. (1 Fes. 317. 3 Bro. 454. 6 Ves 333, 334.) 203 252 CASES IN CHANCERY 1814. 'i'1^6 evidence of the execution of the deed consists (/ ^.^^v-— ^w-- the testimony of four persons who were present, and three SouvERBYE of whom were subscribing witnesses. Bleecker and Ha7ik\ Arden. ilton attest to the execution of the deed in the usual way^ and that they subscribed to it as witnesses. There was no condition, quahfication or explanation made. It was on a Christmas day, in the bedroom of Mrs. Arden, where she was confined by sickness : Blescker says he understood the purport of the deed, though his recollection is faint as to the circumstances respecting the execution, and he does not remember reading, or hearing it read. Mrs. Braine was f * 25.') ] also present, and saw *the deed executed ; and she recollects that the grantor read the deed aloud at the time. Mrs, Sterry was also present, and saw the deed executed, and heard the company congratulate her and her sister on the present of the deed ; and Mrs. Arden also expressed great satisfaction. These are all the witnesses who were present at the exe- cution of the deed, who have been examined in the cause;, and as there was no explanation given, or conditions annexed,',' contrary to the natural and legal import of the deed, the proof of the due execution of it, so as to pass the estate; , must be deemed to be full and absolute. If an act, so authentic, can be impaired by mental reservations, at the time, or by subsequent loose and idle conversations, there would be no safety in ordinary transactions, and no certainty in legal solemnities. There has been a good deal of examination and inquiry as to the custody of the deed from the time of its execution, ; until the actual delivery of it to Clinton, in 1809. This inquiry does not appear to me to be very important ; for, whatever may have been the fact, as to the custody of it from ]605 to 1809, it cannot affect the operatioi] of the deed, provided it was duly dehvered in the first instance, so as to become valid in law. But these inquiries into the subsequent his- tory of the deed, tend rather to confirm than weaken the • direct and positive proof of the first and absolute delivery. We have seen that the defendant alleges, in his answer, that the deed continued in his possession and power. One of the subscribing witnesses {Bleecker) says, that, to the best of his recollection, the deed was not put into the iiandsj of the grantee, but was taken by the grantor. Mrs. Braiim-% says, that it was delivered, by the defendant, to his wife.iB This fact is perfectly consistent with Bleecker's recollection. Mrs. Sterry says the deed was handed by the defendant to her sister, the plaintiff, and laid by her on the ledge, or projection of the case, or wardrobe, in the room ; and sha proves that it remained in that open place until after Mrs 204 CASES IN CHANCERY. *2&1 *Ar Jen's death, which was ia August, 1806. That the 1814. defendant frequently came into the room for papers, which \.^-s^~-»^ he kept locked up in the lower part of the case, and once Bouferbte made mention of tlie careless situation of the deed. Mrs. ardes Braine, who spent a considerable part of her time at the house of the defendant, the summer after Mrs. Arden's death, proves the same fact about the situation of the deed, and the censure of the defendant upon such carelessness. Mrs. 'Talbot mentions a circumstance attending a conversation with Mrs. Arden, the summer she died, which corroborates the testimony of the other two witnesses as to the manner in which the deed was kept. The testimony on the part of the defendant (/. Arden) is not in contradiction with the above history of the deed. Richard D. Arden saw the deed before the death of his mother, in the case or secretary in her bedroom, and he says, that the plaintiff and her sister had the keys of the room after their mother's death, and at her request, and that the deeds remained for a considerable time in the bed- room, after his mother's death, when the defendant took both the deeds, and put them in his deslc in his office helow, where they had been after they were drawn, and before they were signed. Mr. Clinton states, in his answer, that when the defendant (J. Arden) delivered the deeds to him, they were enclosed in one envelope, and endorsed, " Two deeds, viz. one to Louisa, and one to Eliza B. Arden, each for one lot, &.C., to Richard D Arden and De Witt Clinton, in trust, 1805." The conclusion, from all this testimony, is, that the grantor had not the custody and possession of the deed, until some time after the death of the mother of the plaintiff; but that the deed was in the actual possession of the plaintiff, or of her mother, as her agent and bailee. I am perfectly satisfied of the truth of this conclusion. If we recur to the adjudged cases, and to the acknowl- edged rules of law on this subject, they will be found in *favor of the valid operation of this deed, whether the j " WB ] actual delivery was to the plaintiff or to her mother. This is much stronger, and attended with more circumstances of a due delivery, than Shelton's case. {^Cro. Eliz. 7.) In that case, the deed was sealed in the presence of the grantee and others, and was read, but not deUvered ; nor did the grantee take it, but it was left behind in the same place ; and yet, in the opinion of all the justices, it was a good grant, for the parties came together for that purpose, and performed all that was requisite for perfecting it, except an actual delivery ; being left behind, and not countermanded, it was held to be a delivery in law. In the ancient authorities, and 205 Arden, 255 CASES IN CHANCERY 1814. ^* '^ ''"'® when the execution of deeds was subjected to v^,.-^^^-*.^ great technical formality and strictness, it was admitted, thai SonvEKBVE if A. execute a deed to B. and deliver it to C, though he does, not say to the use of B., yet it is a good delivery to B.^ if he accepts of it, and it shall be intended that C. took the deed for him as his servant. (Paston, J. Year Book, 3 H. 6. 27. A. and Anon, cited in 13 Finer, 23. K. pi. 12. J ) The case of Taw v. Bury, (2 Dy. 167. b.) is a strong determination on this point : A. delivered a deed to B. to deliver over to C. as his deed ; B. did so, and C. refused to accept the deed, and it was, accordingly, left with him by B. It was held to be the deed of A., and enuring to the benefit of C. by the first delivery, and before any actual delivery over to the party ; and that the subsequent refusal of the party could not undo it as a deed from the beginning. To the same purpose is Alford and iea's case, in 2' Leon. 110. • It is not to be understood that mere formal words of delivery will, in all cases, bind the party, and render the deed absolute. If it be declared, or agreed, at the time of execution, that the deed is not to pass out of the possession of the grantor, until certain conditions are complied with, the deed will not operate until certain conditions are fulfilled. This has been so ruled at law, in the cases of Jackson v. Dunlap, and of the Derby Canal Company v. Wilniot, Q '2561 Johns. *Cas. 114. 9 East, 360.) and there is much good sense and equity in the decision. But if there be no sucli agreement or intention made known at the time, and both parties are present, and the usual formalities of execution take place, and the contract is, to all appearance, consummated, and the deed is left in the power of the grantee, or in tlie custody of his particular friend, without special instruction'-, there is no case to be found in law or equity, in which such a delivery is not held binding. A voluntary settlement, fairly made, is always binding in equity upon the grantor, unless there be clear and decisive proof, that he never parted, nor intended to part, with the possession of the deed ; and even if he retains it, the weight of authority is decidedly in favor of its validity, unless there be other circumstances, beside the mere fact of his retaining it, to show it was not intended to be absolute. This will appear from an examination of a few of the strongest ca^Rs on each side of the question. In Naldred v. Gilham, (1 P. Wins. 577.) the aunt made a voluntary settlement upon her nephew, then an infant of only four years old, and both parts of the deed were kept in her own possession, and, some years aflerwards, she made a different settlement on another nephew. The circum* 206 CASES IN CHANCERY. 256 stances attending the execution of the deed do not appear, iSi4. but Lord Macclesfield refused to estabhsh the first settlement, -..^^^^-^^^ and concluded, not only from the fact of her keeping the Souvkiibyk custody of both parts of the deed, hut from several other a^ot.^ circumstances, that it was a case of surprise and imposition in fnaking the first settlement absolute without power of revocation"; and in a case which I shall presently mention, Lord Hardwicke said, that this decision was not applicable to every case, but was dependent upon particular circum- stances. In Cotio7i V. King, (2 P. tVms. 358.) the mother made a volunt9.ry settlement, in trust for her children, and delivered the duplicate deeds into the hands of her attorney and agent, " with a strict charge that he should not part with them ;" and no *other person was privy to the transaction, [ * 257 j and Lord Chan. King held the settlement not binding. Again, in Ward v. Lant, (Prec, in Ch. 182.) the father executed a voluntary bond to his daughter, without any condition, and payable immediately ; but he always kept it by hirn, and it was proved to have been his intention that no use should be made of it, and that it was only to protect him from taxes, and it was, accordingly, set aside. It is easy to perceive that there is no analogy between these cases and the present ; and yet they are, perhaps, as strong as any to be met with in favor of the failure of the settlement. There are other cases which show, affirmatively, that the mere retention of the deed by the grantor is not sufficient to defeat it. In Clavering v. Clavering, (2 P'ern. 473.) a voluntary deed dl settlement, in trust, made in 1684, always kept by the grantor in his custody, and never pubHshed, and found, after his death, among his papers, was held to control a sub- sequent settlement, in 1690. The lord keeper said, that though the first settlement was always in the grantor's cus- tody, that did not give him a power to resume the estate ; and he referred to Lady Hudson's case, where a father, having' taken displeasure at his son, made an additional jointure on his wife, but kept it in his power ; and being afterwards recon- ciled to his son, cancelled the additional jointure, and died ; and his wife was allowed, after his death, to recover on the cancelled deed. The decree of the lord keeper was after- wards affirmed in the house of lords. (1 Bra. P. C. 122.) The decision in Boughton v. Boughton, (1 AtJc. 625.) was to the same effect, and Lord Hardwicke made it, with the case o[ Naldred v. Gilham full in his mind. He held that a roluntary deed, formal as to its execution, and without a power of revocation, and kept by the grantor uncancelled, was not to be defeated by a subsequent will. He went still further, in the case of Johnson v. Smith, (1 Ves. 314.) The 207 Ardtx. 25s* CASES IN CHANCERY. 1814. father, in that case, assigned all his *bonds, and other se v_<»-^,,-^^ curities, to his natural daughter ; but the deed was never de- Sf iivEBBYE livered to her, but put, by him, among his own writings, and he continued to deal with the securities as his own. He afterwards executed a bond to the daughter ; and the chan- cellor, after his death, put her to her election, between the deed of assignment and the bond. I am accordingly of opinion, that the deed in question was duly executed, in December, 1805, so as to pass the estate ; ,and that it was not, and could not be, defeated by any subsequent acts or declarations of the grantor. A vol- untary settlement, without power of revocation, cannot be revoked. (Villers v. Beaumont, 1 Vern. 100. Bah' v. Newton, 1 Vern. 464.) It becomes, then, unnecessary to examine and decide on the force and effect of such a delivery as that made to Clinton, in 1809. ' If a deed be duly exe- cuted, in the first instance, so as to take effect, any subse- quent delivery is null and void. {Co. Lit. 48. 6.) The plaintiffs ought to be let into the possession, and the defendant, James Arden, to account for the rents and profits, from the time of the marriage of the plaintiff with Servant, the 22d of January, 1809, when she ceased to be supported in the family of the defendant ; and let a reference be made to a master for that purpose ; and all other questions are, in the mean time, reserved. The following decree was thereupon entered : " That the deed of convey&nce from the defendant, James Arden, and Eliza, his then wife, to the defendants, De Witt Clinton and Richard D. Arden, bearing date the 25th of November, 1805, mentioned and set forth in the pleadings and proofs in this cause, was duly executed and delivered by James Arden, and Eliza, his then wife, on the 25th of De- cember, 1805, so as to pass the estate and interest in the messuage and premises therein described, to the defendants, De Witt Clinton and Richard D. Arden, and to vest the [ * 259 ] same in them, to the uses, and upon the trusts, therein *men- tioned ; and the deed of conveyance is hereby declared valid and effectual, in the law, accordingly. And it is further I ordered, adjudged and decreed, that the plaintiflfs, Saint Martin Souverbye and Eliza Bouquet, his wife, in right of Eliza Bouquet, be forthwith let into the possession of the premises mentioned and described in the deed ofconveyance from the defendants, James Arden, and Eliza, his then wife, to the defendants, De Witt Clinton and Richard D. Arden, bearing date the 25th of November, 1805, and into the per- ception of the rents and profits thereof, in arrear, and unpaid, and hereafter to accrue and become payable, or that Do Mti ii08 Ardek. CASES IN CHANCERV. 259 Clinton and Richard D. Arden be immediately let into the 1814. possession thereof, as trustees, upon the trusts, and to the \^^~s,^*>,^ uses, in the deed expressed and declared, of and concerning Souterbte the same. And in case Be Witt Clinton and Richard D. Arden, or the survivor of them, shall take possession of the premises, they, or the survivor of them, shall receive and take the rents and profits thereof, in arrear and unpaid, and which shall hereafter accrue, and become payable, in trust for, and pay over the same, from time to time, to Saint Mar- tin Sowverbye, and Eliza Bouquet, his wife, in right of Eliza Bouquet, during their joint lives, and to Eliza Bouquet, during her life, if she shall survive Saint Martin Souverbye, her husband ; or they, De Witt Clinton and Richard D. Arden, and the survivor of them, shall permit Saint Martin Souverbye, and Eliza Bouquet, his wife, in right of Eliza Bouquet, to take the rents and profits during their joint lives ; and that Eliza Bouquet is to take the same, during her life, if she shall survive her husband ; and after the death of Eliza Bouquet, one of the plaintiffs, the rents and profits of the premises shall be received, paid and applied, accord- ing to the uses and trusts in the before mentioned deed of conveyance, bearing date the 25th of November, 1805, limited and declared. And that the trustees, or the survivor of them, and any other person then claiming an interest therein, under *the deed of conveyance, shall be at liberty to apply to this [ * 260 Court, for its direction in that behalf. And it is further ordered, adjudged and decreed, that the defendants, De Witi Clinton and Richard D. Arden, shall, within twenty days after notice of this decree, cause the deed of conveyance to be acknowledged, or proved, and recorded, according to law, for the greater safety of the title of the plaintifTs in this cause to the premises therein contained, and all others who may be- come interested therein. And it is further ordered, adjudged and decreed, that the plaintiffs, during their joint lives, and Eliza Bouquet, after the death of Saint Martin Souverbye, her husband, if she shall survive him, shall be at liberty to use the names of the trustees, or the survivor of them, and to have the use of the deed of conveyance, for the purpose of prose- cuting at law, or taking any reasonable measures to obtain the possession of the premises, and for receiving the rents and profits thereof, according to their, and her rights to the same, as herein before declared and adjudged. And it is further ordered, adjudged and decreed, that the defendant, Jamss Arden, account with the plaintiffs in this cause, f6r the vents and profits of the premises, from the 23d of January, 1809, and that it be referred to one of the masters in chan- cery to take the account accordingly ; and that in taking the account, the master charge James Arden with the rents of the Vol. I. 27 209 2G0 CASES IN CHANCERY. 1814 premises deceived, orwhich, without wilful default, might have ^_*-^,-^^ been received for the same ; and that the master make all just Stekry allowances to James Arden, for taxes and repairs ; and that . ^- the master who shall take the account, report thereon, to the Court, with all convenient speed. And it is further ordered, that the question of costs, and all further directions, be reserved until the report shall come in. [ * 261 ] *Sterry and Wife against Arden and others. [Affirmed, 12 Johns. 536.] A voluntary conveyance, ■^ntenlled as a settlement for a child of the grantor, is void, as against a subsequent purchaser for a valuable con- sideration, with only implied notice of the previous deed, by the statute of frauds. But such deed may become valid by matter ex post facto, as by some valuable consideration intervening. Marriage is such a valuable consideration ; and, therefore, if the grantee in a voluntary deed, gains credit by the conveyance, and a person ia induced to marry her, on account of the provisions made for her in the deed, such conveyance, on the marriage, ceases to be voluntary, and becomes good against a subsequent bona Jide purchaser for a valuable consideration. And it makes no difference vyhether any particular marriage was in contemplation at the time of the voluntary setdenient, or not. yctoherZA. LOUISA ANN, one of the plaintiffs in this case, and one of the daughters of James Arden, and Bobert Sterry, her husband, filed their bill to obtain the benefit of a conveyance made to the defendants, Richard D. Arden, and De Witt Clinton, in trust for her, by her father, James Arden and for an account. The circumstances attending the execution and delivery of this deed are the same as those stated in the preceding case, in regard to the deed to the plaintiff's sister, Eliza B. Arden; and which it is, therefore, unnecessary to repeat. The circumstances peculiar to this case, stated in the bill, were, that on the Wihoi December, 1809, the plaintiffs mar- ried, and had a child born, which is still living. That the plaintiff, Bobert Sterry, when the marriage took place, un- derstood, and believed that Louisa Ann had a benefic.al in- terest in the trust premises, according to the conveyance. That James Arden fraudulently executed a deed of convey- ance of the trust premises to the defendant, Philip Verplank, a relation, who, knowing the interest of the plaintiffs in the premises, fraudulently accepted such deed, and claimed to 210 CASES IN CHANCERY. ^* hold the premises by virtue thereof: they, James Arden and 1814. *Philip Verylanlc, thereby intending to defraud the plain- s^-^v—w/ tiflfs, and defeat the deed in trust for Louisa Ann, and the sterrv estate thereby created. - That the pretended deed to Ver- ardes. flank was dated the 11th of December, 1809, and expressed j- * 262 ] to be in consideration of a large sum of money paid, by him, to James Arden; but that, in fact, the deed was not exe- cuted on that, but on some subsequent day, and fraudulent- ly dated anterior to its actual delivery ; and that, if, in fact, it was executed on the 11th oi December, 1809, it was so ex- ecuted and accepted, at an hour subsequent to, and with full knowledge of the marriage of the plaintiffs ; and that the consideration, mentioned in the deed to Verplanlc, was never truly paid, or secured by him to James Arden, from the proper funds of Verplank. James Arden, in his separate answer, stated, in relation to the sale to Verplank, that considering himself, in consequence of Louisa Ann's marriage without his consent, as the abso- lute owner of the premises, he did, on or about the 11th of December, 1809, sell and convey the premises to the defend- ant, Verplank, for the consideration of 16,000 dollars, paid to him by Verplank, on the delivery of the deed ; and that the deed was executed on some day between the 1 1th and 14th of December, 1809, but on which day he did not recol- lect ; but it was after the intermarriage of the plaintiffs. Verplank, in his answer, stated, that before the execution of the deed from Arden to him, he had heard that Arden had made some provision for his daughters, out of property situated in Greenwich street, but viho informed him he could not recollect, and was wholly ignorant of the circurr stances attending such provision, or the manner in which such set- tlement was made. That at the time the deed from Arden to him was executed, he had no knowledge or notice, that the premises conveyed to him had been previously conveyed to the trustees, on the trust, as stated in the bill of the plaintiffs ; that he purchased the premises for *16,000 dollars, and that, [ * 263 J on or about the 11th of December, 1809, he received the deed ; that for several months prior to the execution and delivery of the deed to him, he was in treaty with Arden for the purchase of the premises, and the terms of purchase were partly agreed on, at least one month prior to the 11th of December, 1809; and that, at the time of the execution of the deed to him, he had no knowledge, to the best of his recollection, of the intermarriage of the plaintiffs ; that he could not recollect the precise day on which the deed to him was executed, but is positive that it was executed between the llth and 14th oi December ; that he actually paid the whole consideration mentioned in the deed, and has ?)nce the execa- 211 S63 CASES IN CHANCERY. 1814. ^^^^ tnereof. received the rents and profits of the premises is v_,ir-s,-«fc^ question, to his own exclusive use ; that he married the niece Sterry of James Arden; and he insisted, that the prior deed, in Arden. trust for ZfOw'sa Aiin, was voluntary, and void, by virtue oi the act, entitled, " An act for the prevention of frauds." It was proved that the plaintiff, Robert Sterry, knew, pre vious to the marriage, of the settlement which had been made upon the plaintiff, Louisa Ann, and that the premises were worth about 20 or 21,000 dollars. (S. Jones, jun. and Riggs, for the plaintiffs, contended, that the purchase of Verplanlc, though for a valuable considera- tion, if made with notice of the prior voluntary settlement, was void. Though there may be some color of equity, that a bona fide purchaser, without notice, and for a valuable con sideration, the vendor being in possession, should be prefer- red to a prior voluntary settlement, yet there is no such equity in his favor, where he purchases with notice of the prior settlement. Policy does not require, in that case, that there should be such a preference, and it would be unjust. The Stat, of 27 th Eliz. speaks only oi fraudulent, not volun tary conveyances. And such a construction ought not to be given to the statute, as would defeat a iprior voluntary I * 264 ] *settlement, in favor of a purchaser with notice of it. Where the voluntary deed is fair, legal and honest, at the time, it will not be defeated by any subsequent matter, unless by the act of the grantee, or where the rights of a purchaser, in equity, require it. A purchaser, with notice, is not a bona fide purchaser. He attempts, "knowingly, to defeat the vested rights of other and innocent persons. The only three cases in England, decided since the year 1776, which go to sanction a different doctrine, ought not to be received as authority here, especially when it is not denied that they are against principle, and not founded on a true construction of the statute. The cases in favor of voluntary settlertients are numerous, and a summary of the law on this subject may be found in the opinion of Lord Ellenborough, in the case of Doe, ex dem. Ottley, v. Manning, (9 East, 59 — 63.) These cases all go to show, that volun- tary conveyances may afford presumption of fraud, yet they are not absolutely void at common law, or under the statute, as against a subsequent purchaser. (See Sir Ralph Bory's case, 1 Vent. 193. Jenkins v. Kemis, Hard. 398. 1 Lev. 150. Lavender v. Blackstone, 2 Lev. 146. Garth v. Mow, 1 Keb. 486. Style, 441—446. Gilb. Law of Evid. 201 (245.) 2 fVils. 357. Cowp. 434- 705. 2 Bl. Com. 300, 301. 1 rer7i. 364. 3 Atk. 238.) Love and affection are a good consideration for a conveyance, and the dead, 212 ' CASES IN CHANCERY. 264 in this case, is most clearly honest and. meritorious. (2 i£i4. Buht. 225.) '■^^' The English judges, in late decisions, have regretted that Sterri a different doctrine has prevailed; but they thought too arpf.n. mucii property was held under it to allow them to decide differently ; though, if the case were res intsgra, they would have given a different construction to the statute, and sup- ported these honest family settlements. (1 FonbJ. Eq. 269, 270. n. g. Sugden's Law of Vend. 433. 1 Bay's S. C. Rep. 173.) *This Court is not embarrassed with any such difficulty ; [ * 265 , and ought to disregard a rule so repugnant to principle, arid to the good sense and sound construction of the statute. That Verplarik is chargeable with notice of this prior deed, there can be no doubt. Notice may be actual or con- structive, and what is enough to put the party on inquiry, is sufficient notice. (1 Atk. 489. 2 Atk. 54. 174. 2 Bro. 291. 1 Ch. Cas. 28. 259. 2 Vesey,jun. 440. 2 Ch. Cas. 246. 1 Foribl. Eq. 271. Ncwlund on Contracts, 54. Sugden's Law of Vend. 498.) Again, the marriage of the plaintiff intervening prior to the purchase, it is to be presumed to have been an induce- ment to the Settlement, and forms a consideration, ex post facto, which makes the conveyance valid and effectual, as if given, originally, for a valuable consideration. {Sugden's Law of Vend. 436, 437. 1 Sid. 133. Skinner, 423. 1 East, 95. 10 Johns. Rep. 185. 9 Vesey, 190. 9 East, 69. 5 Vesep, 862. Bac. Abr. Frauds, (C) Newland on Contracts, 404. Roberts on Fraud. Con. 195. Prec. in Ch. 275.) Harison and Harris, contra, contended, that there was no delivery of the deed, and that it having been retained by the father in his possession, it was inoperative. (1 P. Wms. 577.) The deed, in this case, was purely voluntary ; it is proved that the one dollar, mentioned as the consideration, was never paid. Then, Verplank, being' a bona fide purchaser for a valuable consideration, without notice, the prior volun- tary deed is void as against him. Verplank, in his answer, denies that he had notice, and no notice, in fact, has been proved. A mere rumor or report, of the kind stited, is not sufficient to charge a party with notice. The grantor had been in continued possession since the date of the deed, for four years, and Verplank had a right to consider him as the owner. The case of Ottley v. Manning, *(9 East, 69.) is [ * 266 J conclusive on the point, and there are numerous cases to the same effect, which prove, incoiitestably, that it is the estab- 213 26fi CASES IIV CHANCERY. igj4 lisIjeJ rule in England, that a voluntary conveyance, undei v,^*-^.,,^ the statute of the 27 Eliz., is fraudulent against a subsequent Stekkt purchaser for a valuable consideration. (TotkiWs Rep. 257, 258. 1 Ch. Rep.. 78. 2 Vesey, 10. Woodie's case, cited Cro. Jac. 158. 2 5/. iiep. 1019. Cowj). 279. 2 jBro. 148. 4 ^os. fy PwZZ. 332. , 2 Taitn^. jRep. 82. 4 Cntwe, Deerf, ^iV. 32. ch. 22. s. 29—32. Sugden's Law of Fend. 2d ed. 432.) The cases cited to the contrary are chiefly loose dicta,, and the opinion of Lord Mansfield, in Chapman v. Emery, (Cowp. 279.) was prior to his dictum in Cadogan v. Kennat, and in Doe v. Rouiledge. Lord Ellenborough, in Ottley v. Manning, does not deny that this is the construction of the statute, but is inclined to think that the statute itself ought to have been different. The marriage, in this case, did not render the considera- tion, of the prior conveyance, valuable. Being against the consent of the grantof, it could be no inducement to him in making the settlement. The marriage could be no benefit or comfort to him, when against his will. Such a marriage cannot change the original character of the conveyance. Again, it is not proved that Sterry knew of the convey ance before the marriage ; if he did, he must be presumed, also, to have known of the conditions annexed to the deed ; and, then, he married subject to the effects and consequences of those conditions. The Chancellor. The same questions arise in this case iAnte,p.Z'ia. as in that of Souverbye and wife v. J. Arden and others,^ on the delivery of the deed. The two deeds were drawn and executed together, and their history is, in all respects, the same. The proof, then, in each cause, is the same, to every essential purpose ; and though Bleecker, one of the subscribing witnesses to each deed, was not examined in this last case, yet his testimony, and that of the other witnesse« I *267 ] *in the other cause, applies equally to the execution and dis posal of deeds, and it was averred upon the argument, that the depositions in each cause were, by consent, to be read in the other. Whether this be so, or not, does not appear to be in any way material ; for I consider the proof taken in this cause to be the same, in effect, as that in the other, and quite sufficient to establish the delivery of the deed, in 1805. We have, in this case, the additional deposition of R. I. Livingston, who states, that he saw the deed in possession of Louisa, the grantee. The opinion which I have already given in the other case, would then apply to, and govern this, was it not for a new matter of defence set up by Ver- plank, who claims to be a subsequent bona fide purchaser 214 CASES IN CHANCERY. 2G7 This necessarily leads me to the consideration of two very 1814. important points arising out of this case: v_<»->.r->w/ 1. Whether the voluntary conveyance tc the daughter Steer? was fraudulent and void, under the 3d section of the act of aedek the 26th of February, 1787, [s. 10. c. 44. and which is the same, precisely, as the statute of 27th EUz. c. 4.] as against a subsequent purchaser for valuable consideration ; and, if so, then, 2. Whether the intervening marriage of the plaintiffs, be- tween the settlement and the purchase, did not restore the first deed, and give it value and validity. , 1. I shall consider Verplank as a purchaser for a valuable consideration. He gave 16,000 dollars in cash, and, though it may have been a very cheap purchase, there was not such inadequacy of price as to justify an inference of fraud. I shall, also, consider him as a purchaser without actual notice of the settlement upon the plaintiff. He declares in his answer, that he had no knowledge or notice of the convey- ance of 1805, when he purchased, and there is not proof to contradict this answer. But I hold him chargeable with constructive notice, or notice in law, because he had informa- tion sufficient to put him upon inquiry. He admits that, before the execution of the deed, he had heard that the grantor had made some provision for his daughters out of property in Greenwich street ; and there is no evidence in the *case, that the grantor owned any other property in that street, [ * 268 ' except the lots included in the settlement. Here, then, is the case of a fair voluntary conveyance, made by a father to his daughter, he not appearing to be indebted at the time, and a subsequent sale made by him, with intent to defeat that settlement, but made for a valuable consideration, and to a purchaser chargeable only with notice in law. The ques- tion arising on this first point is definitively settled, in England, by determinations of a recent date in the four great Courts at Westminster ; and it is impossible not to feel all the respect which is justly due to decisions of so much weight and authority. {Evelyn v. Templar, 2 Bro. 148. Doe, ex dem. Oitley, V. Manning, 9 East, 59. Doe v. Martyn, 4 Bos. fy Pull. 332. Hill V. The Bishop of Exeter, 2 Taunt. 82. Doe V. Hopkins, in the Excheq. cited in 9 East, 70.) The voluntary deed is considered fraudulent and void against the subsequent deed, and it is held to be immaterial whether the purchaser had, or had not, notice of the prior deed ; and it was an old settled rule, decided in Gooch's case, (5 Co. 60.) that notice to a purchaser, of a fraudulent deed, was of no consequence, as it was still void. It has been suggested, that this is a principle settled m England since our revolution ; but it appears to me that the 215 268 CASES m CHANCERY. 1814. ^^^^ cases ha\e declared no new doctrine, and have only ftl- v_.*-s.,-.«,_^ lowed the rule as they found it, long before settled by a Stekky series of judicial decisions of too much authority to be there> Arden shaken. In the laXe casein East's Rep., hordEUenborough\is in delivering the opinion of the K. B., gave a full and accu- rate view of most of the cases on both sides of the question, from the time of the statute of Elizabeth ; and no one who examines that opinion attentively, and, especially, if he also inspects the original cases referred to^ can well hesitate as to the correctness of the conclusion drawn by the Court, that " the weight, number and uniformity of the authorities, in favor of the rule as there decided, do very much prepon- derate." It cannot be expected that I should attempt to go over, ^*269] *in detail, the numerous cases which have been so ably ar- ranged and reviewed, and so fairly stated in the opinion re- ferred to. I shall content myself with merely alluding to them, and with the remark, that those cited in favor of the position, that the voluntary deed is only, prima facie, fraud- ulent as against the subsequent purchaser, are, generally, mere dicta, and not solemn adjudications upon the point. In favor of the voluntary settlement^ are Sir Ralph Bovy's case, 1 Vent. 193. Jenkins v. Kemeshe, Hard. 398. 1 Lev. 150. Lavender v. Blackstone, 2 Leiv. 1461 Garthtv. Mois, 1 Keh. 486. Anon. Sty. 446. Gilbert's Law of Ev. 201. Standon- v. Charlwood, MSS. cited 9 East, 64. Loid Mansfield, m Cadogan v. Kennett, Gowp. 434. and in Doe V. Routledge, Cowp: 708. 710. In favor of the subsequent purchaser, are Woodie's case, cited in Cohille- v. Parlcer, Gro. Jac. 158. Prodgers-v: Langham, 1 Sid. 133. White v. Hussey, Free, in Ch. 14. Tonkins v. Ennis, 1 Eq. Gas. Abr. 334. pi. 6. White v. Sansom, 3 Atlc. 419.. Townsend v. Windham, 2 Ves. 10. Roe V. Mitton, 2 Wih. 356. Goodright v. Moses, 2 Bl. Rep. 1019. Chapman v. Emery, Gotvp. 278. Lord Kenyan, in JVmmm V. Wilsmore,8 Term, 528. There are, however, some cases which are not mentioned in the opinion delivered by Lord Ellenborough, and which, as it seems to me, give' additional weight to the opinion which has been adopted. Thus, in Walker v. Burrows, (1 Atk. 93.) Lord Hardwicke) observes, " It has been said, all voluntary settlements are void against creditors, equally the same as they are against subsequent purchasers, under the statute of 27 Elis. clu 4i but this will not hold;" and he afterwards adds, "But, upon the statute of the 27 Eliz., which relates to purchasers, there, indeed, a settlement is clearly void, if voluntary, that isj not for a valuable consideration, and the subsequent pur- chasers shall prevail to set aside such settlement." Again, 216 CASES IN CHANCERY. 269 « Vpion V. Basset, y/Mich was shortly after the statute, {Cro. 1814. hlliz. 445.) there was an evident admission and understand- ^^^'-^^■-^^ ■ng of all the judges, *that a voluntary conveyance was void, Stekkt under the 27 Eiiz., against a subsequent bona fide purchaser auden. for valuable consideration. The case of Taylor v. Stile is r * ^iq '[ cited by Sugden, p. 483, as being decided in chancery, in '- 1763, and in which Lord Northington held it to be clear, that a subsequent purchaser for valuable consideration, though with notice, should set a=ide a voluntary settlement ; and Mr. J. Baihurst said, he kni^w that Lord Hardwicke had determined so in twenty instances. , In Douglass v. Waad, (1 Ch. Cas. 99.) the Court of Chancery set aside a voluntary conveyance as fraudulent against a subsequent purchaser, and though the Court are reported to have said, " that all voluntary conveyances , are, prima facie, to be looked upon as fraudulent against purchasers, unless the contrary be made to appear," yet the decree was conforma- ble to the principle contended for by the purchaser, for it set eiside the voluntary conveyance as fraudulent, though nothing appeared but the want of valuable consideration to make it so. It is, also, worthy of notice, that, in the original text of the treatise of equity, published in 1737, and of which Fonblanque is the editor, (1 Fonb. 268.) the same doctrine is explicitly laid down. In short, the principle set up in favor of the purchaser, has been so long and so well established, by a series of authoritative decisions, supported by the most eminent judges, that I feel, bound by them, whatever doubts I might have had upon this construction of the statute, if I had been at liberty to follow my own reflec- tions. When a principle has taken such deep root, and re- ceived such uniform support, it belongs to the legislature, and not to the Courts of justice, to suppress or destroy it. It has been observed, that the present defendant was not a purchaser with actual notice of the deed of settlement. He does not, therefore, come within the exception for which some have contended. Doubts have been frequently ex- pressed, whether the better construction of the statute would not have been to support the voluntary conveya V. Vas Cort LAKDT. [ * 287 ] [ * 288 ] courriged the plaintiffs to possess and improve the lo ;, under some vague assurance that he would, eventually, ease oi sell to them, he ought not now to avail himself of the benesfit *of their improviements, without inaking ^nem com- pensation. The uncultivated state of most part of the land, when the defendant first gave sanction to the possession of the plaintiffs, and the uncertainty, at least, of any redress at law for their improvements, are additional considerations for re- taining the bill; and in this view, perfect justice can be done to both parties, consistent with the principles of equity and law. I shall accordingly correct the decree heretofore pro- nounced in this case, and shall direct a reference to a master, to take and state an account between the parties ; and that, in taking the same, he charge the plaintiffs with the rent, il any, in arrear, and with what shall appear to be a reason- able rent for the time the same was not agreed on by the parties; and that he make to the plaintiffs a reasonable al- lowance for beneficial and lasting improvements made by them upon the land; (a) and that he take the necessary proofs for that purpose, and report with convenient speed ; and that all other questions be, in the mean time, reserved. " It is ordered, that the former order made in this cause, on the 20th of December last, and the other orders and de- cree made in the cause, subsequent to the day last aforesaid, and previous to the order for rehearing, be set aside. And it is further ordered, that it be referred to Walter King, Esq., one of the masters of this Court, residing in Oneida county, to take and state an account between the parties ; and that, in stating the same, he be directed to charge the plaintiffs with the rent, if any, in arrear, and for sdch time as the rent was not agreed on by the parties, that he charge the plaintiffs with what shall appear to be a reasonable rent ; and that he be directed to make the plaintiffs a reasonable allowance for beneficial and lasting improvements *made by them upon the' premises ; and that, in taking such ac- count, the depositions and exhibits in the cause may be used by the parties ; and that they be at libei ty to produce other proof, which the master, in that case, is io return with his report. And all further questions to be reserved. Until the coming in of the report." !230 (o) See a Bimilar order, 2 Schoale ^ Lefroy, 513. CASES IN CHANCERY. 288 1814. Frost and others against Beekman. [Keversed, 18 Johns. 541. Distingaished, 13 Hnn 474, 480. Followed, 5 Jolins. Ch. SBD. See 78 111. 1S3.1 Where a deed was deposited by the grantor with W.', as an escrow, to be delivered to the grantee, on liis producing a mortgage executed and recorded, and a certificate of the clerk of no encumbrances on record, and W., on receiving the mortgage and certificate of registry, &c., delivered the deed to the gra.itee, and the grantor received the mort- gage, &c. from W., and treated it, afterwards, as a valid mortgage ; he was held to be concluded from denying the delivery of the deed, on the ground that the wife of the mortgagor had not acknowledged the mortgage, and that the mortgage was erroneously registered for less than the true sum. A deed, delivered as an escrow, takes effect only from the time of the performance of the condition, and the actual delivery to the grantee ; except in cases where a relation back to the first delivery is necessary to give effect to the deed, or to the intermediate conveyances of the grantee ; but not as between third persons. The registry of a mortgage, given to secure three thousand dollars, but, by 'iie mistake of the clerk, registered for three hundred dollars, is no- tid to subsequent honafde piu-chasers, to the extent only of the sum expressed in the registry. But actual notice of the true sum contained in the mortgage, is sufficient as to all purchasers, or payments, subsequent to the time of such notice. A party claiming relief in equity as a bonajide purchaser, must, positive- ly and precisely, deny all notice, though it is not charged. THE bill in this cause, which was filed in April, 1808, stated, that Frost, one of the plaintiffs, and Martin Goddard, then deceased, in August, 1803, agreed to purchase of Henry Corl,jun.^ lot No. 33, in the town of Marcellus, con- taining '600 acres; that, on the 19th of . September, 1803, *Corl conveyed 200 acres, part of the lot, to Frost, for which Frost paid him, in August, 1803, 300 dollars, and, on receiving the deed, 700 dollars more ; that Corl, in Septem- ber, 1805, pursuant to the agreement, conveyed half of the residue of the lot to Frost, and half to Martin Goddard, and the deeds were duly recorded the 15th of September, 1807. On receiving the last-mentioned deeds, Frost and Martin Goddard gave their promissory notes to Corl, for the pur- chase money, and which notes Corl assigned to others. In September, 1807, Frost sold the 200 acres of fend, first con- i^eyed to him, to Jesse Kellogg, one of the plaintiffs ; and Martin Goddard sold and conveyed his interest in the lot to Eli Goddard and Philo Goddard, two of the plaintiffs. That the plaintiffs discovered on the records, in the office of the clerk of the county of Onondaga, a mortgage from Corl to John K. Beekman, the defendant, dated May 6th, 1803, registered the 9th of September, 1805, to secure the sum of 300 dollars, payable on. the 6th of May, 1808, with «31 Frost V. Beekmav. October 3d [*289 BiSEXMAIT. i89 CASES IN CHANCERY. ]814. interest; on discovery oi' which mortgage, Frost applied to, ^*«-s,-«^^ the defendant, and offered to pay the sum of 300 dollars, Feost and interest, which was refused ; and to the surprise of Frost, the defendant stated the mortgage in fact to be to secure the sum of 3,000 dollars, which sum he demanded, saying there was a mistake in the registry as to the sum. That Frost had no knowledge or suspicion of the mortgage, at the time of the deUvery of either of the deeds from Corl to him ; nor had, as he believed, Martin Goddard any knowledge of it at the time of the dehvery of the deed to him; and that Frost and Martin Goddard have sold and conveyed the lands as aforesaid, without any knowledge or suspicion of any other mortgage, than one for 300 dollars. That the interest of the plaintiffs ought not, therefore, to be affected by the mortgage beyond the sum of 300 dollars iex- pressed in the registry ; that valuable improvements have been made on the lot, since the purchase from Corl; that the defendant is advertising the lot for sale under the mort- [♦'290] g^Sj *for the purpose of raising the sum of 3,000 dollars, &c. And the plaintiff's prayed an injunction to stay all further proceedings on the part of the defendant, &c. The answer of the defendant stated, tha:t in May, 1803, he had a good title to the lot in question, which he agreed to sell on the 6th of May, 1603, to Corl, for 3,000 dollars, , payable the 6th of May, 1808, with interest. The agreement^, was by parol ; but the defendant promised to execute a deed,'!" and sent it to R. Westcrlo, of Albany, as an escrow, to be de- livered to Corl when he should produce to Westerlo a mort- ; gage of the lot, to secure the purchase money, duly executed by him and his wife, and registered according to law, and a certificate of the clerk that there was no other mortgage on the lot registered. That the defendant, accordingly, on or about the 6th oi May, 1803, signed and sealed a deed for the lot to Corl, who, at the same time, drew a mortgage to be executed by Corl and wife, which was approved of by the defendant ; and the defendant deposited his deed with tfes- terlo, as an escrow, to be delivered to Corl on his producing the mortgage and certificate as aforesaid. That, in September, 1805, as the defendant was informed by Westerlo, Corl pr(,- duced, and delivered to Westerlo, a certificate of the clerk .)/ Onondaga, dated September 9th, 1805, that there was no mortgage of the premises on registry in this office, and mat Corl had left in his office, that day, a mortgage executed by him and his wife, to BeeTcman, for the premises, to secure the payment of 3,000 dollars, &c. That, shortly after, Corl de- livered to Westerlo the mortgage, for securing the suui of 3,000 dollars, dated the 6th of May, 1803, purporting to be executed by Corl and his wife, acknowledged by Corl the 232 casp:s in chancery. 2iX^ 7th of September, 1805, and registered the 9th of September, 1814. 1805 ; and that Westerlo, on receiving the mortgage and car- >_^-n,^*»_> tificate, delivered up the deed of the defendant to Corl; but Frost the defendant insisted that such delivery was not valid, be- bexkhan cause the conditions, on which the deed was to be delivered, were not performed *by Corl, as the mortgage, though pur- [ * 29 1 { porting to be signed by the wife of Corl, had not been ac- knowledged by her. That Corl having absconded long be- fore the day of payment, and no person appearing to satisfy the mortgage, the defendant caused the lot to be advertised for sale under the power contained in the mortgage ; that the defendant had no knowledge of the facts stated in the bill; that in September, 1807, he first discovered that the clerk, in registering the mortgage, had inserted 300 instead of 3,000 dollars; and he charged, that the plaintiffs pur- chased without any reference to the registry ; and that he hoped to prove, that the plaintiffs and Martin Goddard had previous notice of the mortgage, &c. The defendant admitted that improvements had been made on the lot, but to what extent or value he was ignorant. It was proved, on the part of the plaintiff, that Corl ab- sconded in the summer or autumn of 1803, and that his wife died in July or August, 1806. The sale of the lot to Frost and Martin Goddard, by Corl, as stated in the bill, was proved. One of the witnesses, Samuel Whitney, stated, that in Sep- tember, 1807, he discovered the mortgage of the defendant on record, and communicated the fact to the sons of M. Goddard, which he believed was the first notice Frost or Goddard had of it. Tvvo other Witnesses, Russel Taylor and Nathan Healy, stated that the deeds from Corl to Frost and Goddard, were given in September, 1806, when the arti6les of agreement for the same land were given up to Corl. Frost gave two notes, of 420 dollars each, to Corl, who had given a receipt for 130 dollars paid before, and in February, 1806, CorZ received 140 dollars. Rufi^ Lawrence stated, that he paid Corl, for Martin Goddard, at two different times, 460 dollars, and Goddard also gave Corl a note for 300 dollars. The notes of Frost and Goddard, to the amount ol 700 dollars, were, afterwards, seen in the hands of Matthev Trotter, to whom they had been assigned, and who gave them up to Frost and Martin *Goddard, and took new notes, payable to himself, for the [ * 292 ] same amount. It appeared that the deed from Corl to Frost, for 200 acres, was dated September 19, 1803, for the consid- eration of 1,000 dollars, acknowledged the 11th o( April, 1805, and recorded July 3, 1805 ; and the deed for 207^ acres, from Corl to Frost, was dated September 1, 1805, ac- knowledged the 13th of September, 1806, and the 15th of Vol. I. 30 23.3 Keekman. 292 CASES IN CHANCERY. 1814. September, 1807, for the consideration of 1,0)0 dollars; and N_^-s^-«i_^ the deed to Martin Goddard was acknowledged and record- Frost ed at the same time. The deed from Frost to Kellogg, of 200 acres, for the consideration of 2,000 dollars, was dated the 21st of September, 1807, and acknowledged and record- ed on the same day. There was also a deed from Kellogg to Frost, dated the 6th of July, 1808, for 200 acres, for the consideration of 2,000 dollars, acknowledged oi. the 7th of July, 1808, and recorded the 13th of May, 1809 The deed from Martin Goddard to Philo Goddard was dated the 24th of November, 1807, for 50 acres, for the consideration of 400 dollars, but was not recorded; and the deed from Martin Goddard to Eli Goddard, was for 100 acres, dated also the 24th o( November, 1807, for the consideration of 700 dollars. It appeared, also, from the exhibits, that the deed, from BeeJcman to Corl was dated the 5th oi May, 1803, acknowl- edged the 11th of December, 1804, and recorded the 15th of September, 1806 ; and that the mortgage, from Corl to Beekrnan, was dated the 6th of May, 1803, acknowledged the 7th of September, 1805, and recorded the 9th of Septem- ber, 1805. It was proved that valuable improvements had been made by the plaintiffs on the land. One witness stated the value of them to be 2,891 dollars. Westerlo, who was a witness for the defendant, deposed, that, in October, 1804, he received a letter from the defend- ant, dated 26th of September, 1804, in which the defendant says, he sends therewith the deed, bond and mortgage, of Corl, the first executed by the defendant, and to be delivered [ * 293 "* *to Corl, provided he pays the balance, &c., and has the mortgage, after executing it, put on record in Onondaga, and Drings the clerk's certificate that there was no mortgage or en- cumbrance thereon. That the witness delivered to Corf the deed, on his producing the mortgage and certificate, which was some time after the witness received- the deed, but the exact time he could not recollect. That the certificate of the clerk was dated the 9th of September, 1805, and the cer- tificate of the registry of the mortgage was of the same date ; and the acknowledgment of Corl, of the mortgage, was on the 7th of ^ej tember, 1805. Gold, for the plaintiffs, contended, that the only legal evi- dence of the conditions to be performed by Corl, before the deed was to be delivered to him, was the letter of the de fendant to Westerlo, and that it did not expressly require the acknowledgment of the mortgage by the wife of Corl. The conditions were satisfied by the delivery of the mortgage and certificate to fVesterlo. Besides, the acceptance, by the de '234 CASES IN CHANCERY. 293 fendant, of the mortgage, and his acquiescence therein for so 1814. long a t'ime, and advertising the premises for sale under the v,.«— v/-^-^ mortgage, kmounted to an adoption and ratification of the Frost construction given by Westerlo to the letter, and of his acts bkekmas in pursuance of it, so that the defendant w^as es,topped from making any objection to the due delivery of the deed to Corl And especially, since the death of Mrs. Corl, in August, 1806, the possibility of any claim of dower was re- moved, so that the defendant could not be prejudiced by the omission of her acknowledgment. Again, the conditions on which the deed to Corl was de- posited with Westerlo, having been performed, and the deed deUvered to Corl, the title to the land vested in him, by re- lation, from the date of the deed, so as to support the inter- mediate sales by Corl to Frost and Goddard ; but even if it should be considered as taking effect only from the time of the delivery by Westerlo to Coi-l, it would still enure to sup- port the previous sales to Frost and Goddard. (1 Johns. *Cas. 81. Shep. Touchst. 56, 51, 5S. 4 Cruise's Dig. tit. [ * 294 32. ch. 11. sect. 55. 1 Tern Rep. 600. Sir W. Jones, 459. 1 Ld. Raym. 729. 10 Vin. Ah. 360. pi. 7. Sir. 818. 1 Johns. Rep. 230.) The mortgage of the defendant was not duly registered, and it can operate as notice only so far as it was registered. The act (1 N. R. L. 372.) expressly provides, "that no mortgage, nor any deed, conveyance, or writing, in nature of a mortgage, shall defeat or prejudice the title or interest of any honajide pui'chase of any lands, &c., unless the same shall have been duly registered as aforesaid;" and, in the previous section, (s. 1.) the register is required to enter the names of the mortgagors and mortgagees, the dates of the mortgages, the mortgage money, time of payment, descrip- tion of lands mortgaged," &c. The registry act would op- erate as a snare to purchasers, if an erroneous registry was to be regarded as notice of the true deed. No purchaser would ever think of looking further than the record for the sum for which the mortgage was given. (1 Schoale 8f Le- froy's Rep. 130. 156. Amb. 678. 2 Equ. Cas. Ahr. 609. Sugden's L. of V. 467. 469, 470. 2 Schoale ^ Lefroy, 64. Newland on Cont. 509, 3 Cruise's Dig. 348. tit. 32. Deed, c. 21. s. 11. Str. 1064. 4 Vesey, 389. 1 Caines's Cases in Error, 120, Per Spencek, J.) Bona fide purchasers for a valuable consideration are especially protected in this Court, particularly against latent equities. Emott, contra, insisted, that there had been no valid de- liver) 'if the deed from Beekman to Corl. There was no 235 294 CASES IN CHANCER V. 1814. acknowledgment of it by the wife, and, until every conditio^ v^i^-^,-*^' was fully performed, there could be no delivery. {Shep. Frost Touchst. 59 Perkins, s. 142. 4 Com. Dig. 159.) Beekman. I^ ^^'^ mortgage was not duly registered, then the condi- tion was not performed. If it was duly registered, then there was notice; so that, quacunque via data, the plaintiffs [ * 295 ] *have no equitable title to relief. Estopeh are odious, an^ there is no estopel in this case. If there was any delivery of the deed, it was after the 9th of September, 1805. There was no need of any registry, as respected the original purchasers, who purchased heioxe the existence of the mortgage. The doctrine of relation is for the protection of right, and is never allowed to the injury of third persons. (3 Co. 35. I. 36. a.) A delivery is never made to have retrospect to the date of the deed, so as to work a wrong to innocent pur- chasers. There can be no such relation back as to collateral acts. It must, i;i many cases, be absurd to apply this docrj trine of relation to an escrow. The registry, in this case, was sufficient notice to all sub- sequent purchasers. (2 Johns. Rep. 510. 10 Johns. Rep. 374. 2 Vesey, 441. 13 Vesey, 120. 14 Fesej/, 433.) A notice is sufficient, before the execution of the deed to the purchaser. (2 Atk. 632.) So, it is sufficient, if before the money is paid. (2 Atk. 630. 3 AtJc. 304. 3 P. Wms. 306.) Again, though notice is not charged, yet it must be ex- pressly denied by the purchaser. The plaintifTsj in their bill, ought to have explicitly negatived all notice at the time the deeds to them were executed, or when they paid the money. (1 Vern. 179. 3 P. TVms. 244.) The plaintiffs have not denied notice, nor shown a want of notice by their proofs. The fact of improvements made, has no application to this case. The defendant wants only his money, and the Court ought to direct that the 3,000 dollars be paid in a reasonable time, or the equity of redemption be foreclosed. Frost gave notes to Cci, and there is no proof that the purchase money has evej been paid. The witnesses, Healy and Cole, show their interest, aiid their depositions ought, therefore, to be rejected. ;, Thp whole proofs show that iTeZZo^^ never paid the 2,000 dollars [ * 296 ■) *for the purchase. At any rate, he had notice of the mot\.-\ gage before payment, and that is sufficient as to nim. The Chancellor. This case has 'led to the discussion oi several important- questions. 1. The first in order is, whether the deed from Beekman 236 CASES IN CHANCERY. 29fi to Corl was duly delivered, and at what time, so as to pass 1814. the estate. -._^— ^,— «».^ The deed must be taken to have been duly delivered from Frost the time it was handed to Corl by Westerlo, with whom it beekmah had been deposited as an escrow. The exact time of this delivery does not appear, but it may be safely fixed as early as the 1st of October, 1805, for it must have been after, and shortly after, the registry of the mortgage on the 9th of Sep- ■ tember preceding. The letter from Beekmah to Westerlo, containing the conditions, upon the fulfilment of which the deed was to be deUvered, did not expressly, or by any neces- sary intendment, require that the mortgage should have been previously executed by Corl's wife. It mentioned only, that Cod was to have " the mortgage (after executing it and the bond) put on record." The agent of the defendant accept- ed of the mortgage as sufficient, without such acknowledg- ment, and the defetidant afterwards received the mortgage from Westerlo without objection, though the want of ac- knowledgment by Corl's wife must have appeared from the mortgage itself. The wife died in the summer of 1806, and the defendant cannot be permitted, under the circumstances of the case, to question the validity of the delivery on the ground that the wife was not a party to the mortgage. Nor can he be heard to say, that the mortgage was not " put on record," so as to defeat the delivery of the deed. The clerk's certificate of the registry was all that the letter to Westerlo could have intended. It was not expected that the agent would go into the county of Onondaga to inspect the registry himself The certificate upon the mortgage was accepted by Westerlo, and from him *by the defendant, as [ * 297 ^ sufficient evidence of the registry. The defendant has thus affirmed the delivery of the deed; by accepting the mortgage, with the evidence accompanying it of a performance of the conditions on which the delivery of the deed was made to depend. He ought to be concluded from denying the de- livery, especially as agaiilst third persons who have acquired interests under it ; and this conclusion is the more just and necessary, when we consider that the defendant has neveir ceased, even since the discovery of the mistake in the registry, to treat the mortgage as valid. Every deed takes effect from the delivery ; and the rea- sonable inference from the transaction, is to consider the deed as operating only from the time of the performance of the condition, and the actual delivery to the grantee. This is the general rule, as stated by Perkins, (sect. 138.) and it IS only to be controveried when justice requires a resort to fiction. In Butler and Baker's case, (3 Co. 35. b. 36. a.) ii was resolved, and the law had, indeed, been so understood 237 i't/7 CASES IN CHANCERY. 1814. lo"g before, (Bro. tit. non est factwm, pi. 5.) ihat a deejj ^.^^-^^-^_^ delivered as an escrow, and afterwards to the grantee, shall Frost relate back to the first delivery, when that relation is neces- liEEKMAH ^^''y ^^ g'^^ effect to the deed, as if the grantor, being a feme sole, should marry, or if the grantor, whether a feme sole or not, should die between the first and second delivery/ but that, in other cases, as where it would avoid a lease, it shall not have that relation, but shall operate according to the truth of the case from the second delivery. The fiction of carrying the deed back by relation, is resorted to from necessity, to prevent injury, and to uphold the deed ; or, as it is expressed in the case frorn Coke, "in such case for necessity, and ut res magis valeat quam pereat, to this intent, by fiction of law, it shall be a deed ab initio, and yet iij truth, it was not his deed until the second delivery." In that case it was likewise resolved that, as to collateral acts, there should be no such relation at all. > [ * 298 ] *In the present case, there is no necessity of resorting to this fiction of relation, as between the parties to the bill. It would operate unjustly upon the defendant, for it would be defeating his mortgage altogether, so far as respected the first deed from Corl to Frost, which was recorded in July. 1805. If the question was between Corl and the persons to whom he sold, the deed ought to relate back, so as to give effect to his intermediate grants, and prevent him from defeating them. This is the amount of the doctrine in Jackson v. Bull, (1 Johns. Cas. 81.) But here is a struggle between innocent persons, to avoid a loss, and we ought not to resort to fiction to help one as against tins other. The transaction must be left to rest upon its simple and naked truth. I conclude, then, that the deed to Corl took effect from its delivery to him, about the first of October, 1805. Another and a more interesting question, is respecting the extent and effect of the registry of the defendant's mortgage, as notice to purchasers. It was a mortgage for 3,000 dollars, and, by mistake, the registry was only for 300 dollars. This mistake is the whole cause of the controversy. The registry of The mortgage act of the sess. 24. ch. 156. declared, a mortgage is among Other things, that the registry of a mortgage ghou'd qne'nr purfha^ Contain, not, indeed, the mortgage at large, but "the essential parts of the mortgage, and among other specified parts, " the mortgage money, and the time, or times, when paya- ble." To this register all persons whomsoever, at proper seasons, are at liberty to have recourse ; ancj the act declared that mortgages were to have preference, as to each other, according to the times of registry, and that " no mortgage should defeat or prejudice the title of any bona fide put- 238 fers. CASES IN CHANCERY. 298 chaser, unless the same should have been duly registered, 1814. as aforesaid." This registry is notice of the mortgage to \,^-s^-^^y all subsequent purchasers and mortgagees ; and so the act Feost was construed, and the law declared, by the Court of Errors, beekVan. in the case of Johnson v. Stagg, (2 Johns. Rep. 510.) *The English authorities on this point do not, therefore, r * 299 J govern the case. The language of those authorities, un- doubtedly, is, that the registry is not notice, though thai doctrine is much questionedj and the point seems still to be floating and unsettled. {Bedford v. Backhouse, 3 Eq. Cas. Abr. 615. pi. 12. Wrightson v. Hudson, E. 609. pi. 7. Morecock v. Dickins, Amb. 678. Laiouche v. Dunsany, 1 Schoale &f Lefroy,l51. Sugden,{Bd Lond. ed.) 524 — ^7. Com. Dig. tit. 32. Deed, ch. 21. s. 11.) The only question with us is. When, and to what extent, is the registry notice ? Is it notice of a mortgEige unduly registered ? or is it notice beyond the contents of the registry ? The true construction of the act appears to be, that the The registry registry is notice of the contents of it, and no more, and that i^/notice°on^to the purchaser is not to be charged with notice of the iheextent othe contents of the mortgage, any further than they may be 'he^c|is^y .'' " contained in the registry. The purchaser is not bound to attend to the correctness of the registry. It is the business of the mortgagee, and if a mistake occurs to his prejudice, the consequences of it lie between him and the clerk, and not between him and the bona fide purchaser. The act, in providing that all persons might have recourse to the registry, intended that as the correct and sufficient source of infor- mation ; and it would be a doctrine productive of immense mischief to oblige the purchaser to look, at his peril, to the contents of every mortgage, and to be bound by them, when different from the contents as declared in the registry. The registry might prove only a snare to the purchaser, and no person could be safe in his purchase, without hunting out and inspecting the original mortgage, a task of great toil and difficulty. I am satisfied that this was not the intentiori, as it certainly is not the sound policy, of the statute ; nor is it repugnant to the doctrine contained in the books, that notice to a purchaser of the existence of a lease, is notice of its contents. {Taylor v. Stibbert, 2 Ves. jun. 437. Hiern v. Mill, 13 Ves. jun. 118. 120. Hall v. Smith, 14 Ves. jun. 426.) In that case, the *party is put upon inquiry, [ * 300 ] und he must make it, or abide the consequences. The decision, in Jackson v. Neely, (10 Johns. Rep. 374.) was made upon the same principle : and it was held that the recital in a deed of a letter of attorney, by which it was made, was notice to the purchaser of the existence of such a power. But here the statute did not mean to put the 239 300 CASES IN CHANCERY 1814. party upon further inquiry. The registry was intended tc s_^-N/-«»_, contain, within itself, all the knowledge of the mortgage Frost requisite for the purchaser's safety. Bkekman. The question does not necessarily arise, in this case, how far the unauthorized registry of a mortgage, as one made, ed"regSi''y°o7a fo"" instance, without any previous legal proof, or acknowl- morigage, or edgment, would charge a purchaser with notice of the wluioui^'" any mortgage. The better opinion, in the books, seems to be, previous proof that it would not be notice, and that equity will not interfere meT^woa\dnii, i" favor of an encumbrancer, wBen he has not seen that his ii scents, be no- mortgage was duly registered. (^Sugden's Law of Vend. qolnrpureh:: 527. 1 Schoak ^ Lefroy, 157. Hiester v. Fortner, 2 »er- Binney, 40.) But here every thing was done that could have been previously required of the mortgagee. The mort- gage was duly presented for registry, and he was not bound to inspect and correct the record. This was the exclusive business and duty of the clerk, and there is no reason why the registry should not operate as notice, to the amount of the sum mentioried therein ; and, indeed, so far the obligation of the registry is admitted by the bill. I conclude, therefore, that the registry was notice to purchasers, to the amount, and only to the amount, of the sum specified in the registry. We are next led to consider how far relief can be granted to the defendant consistently with these principles. Equity gives Whatever claims the defendant may have to favor, arising againsra'pur^ from the misfortunc attending his case, yet it is an estab- chaser for a lished rule, in equity, to give no assistance against a pur- ^deration wiih- chaser for a valuable consideration, without notice. ( Wallwyn out notice. v. Lee, 9 Ves. 24.^) He has equal claims upon the equity [ * 301 ] of *the Court. But, whenever actual notice of the true sura in the mortgage can be brought home to the purchaser, he is from that time, so far as the .former purchase is left incomr plete, either as to the deed on the one hand, or as to payments on the other, bound by the prior equitable lien, and all subsequent payments, by him, are made in his own wrong, so far as the rights of the mortgagee are concerned. Notice of an As soon as notice is received, it arrests all further proceed XTa'fffariher '"^^ towards the Completion of the purchase and payment. proceedings to- and, if persisted in, they are held to be done in fraud of the "iet?on"'of°T ^qu't^ble encumbrance. {Wigg v. Wigg, 1 Atk. 384. purchase" or Story V. Lord Windsor, 2 AtTc. 630.) Thus, in TourvUle v. S™' "'^ ""^ ■^"**^' (3 -f- ^^^- 306.) it was held, that where a man purchases an estate, and pays part, and gives a bond for the residue, notice of an equitable encumbrance, before payment, though after the giving of the bond, was sufficient to stop payment, and to entitle the obligor to relief, in equity, against the bond. Again, in Hardingham v. -Nicholh, (3 240 CASES IN CHANCERY. 301 A.ik. 304.) it was ruled to tbe same effect, that, it the 1814. purchaser for a valuable consideration had not paid the v_^-s^-«i.^ money when notice of the lien was received, though it Feost was secured to be paid, the plea of such a purchase was not BEixMih good against the plaintiff's title. There can be no doubt as to the rule of equity in thi? case, and the only difficulty is, to determine from what time the plaintiffs are to be charged with notice of the mistake in the registry of the mortgage. Frost and M. Goddard are to be treated as bona fide purchasers, without notice. It is so averred in the bill, and there is no proof to contradict it. The last deeds from Carl to them, though bearing date in September, 1805, were acknowledged in Septeniber, 1806, and are proved, by the witnesses on the part of the plaintiffs, {Heahf and Taylor^ to have been executed in September, 1806. At that time, as Frost avers, they had no notice, in fact, of the registry, though they were chargeable with notice, in law ; and when the notice, in fact, not only of the registry, but of the *mistake in the registry, came to their knowledge, is left to [ * t'02 ] be inferred from circumstances. They have not thought proper to disclose the precise time, and the obscurity in which this fact is left by the plaintiffs, authorizes the pre- sumption that they may have known it sooner than they are willing to declare. The bill does not state at what time the discovery was made of the registry, but only that, "on such discovery," Frost applied to the defendant, to pay him the 300 dollars, and was then first informed of the mistake. One of the witnesses (Whitney) would lead us to conclude that the first actual knowledge which the parties had of the registry was in September, 1807 ; and it was in September and November, 1807, as appears by the acknowledgments upon the deeds, that Frost and Martin Goddard sold to the other plaintiffs. I think that actual notice of the true mortgage ought to be fixed on Frost and Martin Goddard, as early, at least, as September, 1807. The purchasers from them, who are the other plaintiffs in the bill, make no averment of being bona fide purchasers, without notice of the true mortgage. They are perfectly silent on the fact of notice, and the biU is rather equivocal on this point, even as to Frost. He only says, that he and Martin Goddard alienated " without any knowledge or suspicion of any . encumbrance, except the mortgage registered as aforesaid.'" In all cases in which a party sets up his title to relief in equity, as a bona fide purchaser, he must deny notice, though it be not charged. (3 P. Wms. 244. n. Bodman v. Van Den Bendy, 1 Vern. 179.) It is a general rule in pleading, that whatever is essential to the right of the party, and is necessarily within his knowledge, must be positively and Vol. I. 31 241 302 CASES IN CHANCERY. J 814. precisely alleged; and the plaintiffs, coming in the chaiactei v..^,,-^^,-i^_^ of bona fide purchasers, were bound to state, affirmatively, Frost the equity of their case ; if they will not aver the fact, that J, "■ they were purchasers without notice, we are not bound to presume it. The fact rests in their own knowledge. In [*303] Gerard v. Saunders, (2 Fes, jun. 454.) *the defendant pleaded a purchase for a valuable consideration, without notice ; and Lord Loughborough held, that he was bound to deny, fully, and in the most precise terms, every circumstance from whence notice could be inferred. One of the deeds to Frost, for 200 acres, was dated in 1803, and recorded in 1805, prior to the mortgage; and whatever payments were made upon that purchase before Frost was chargeable with notice of the true mortgage, though made prior to the time of the delivery of the de- fendant's deed to Corl, ought equally, with subsequent payments, to be protected against any further sum than that contained in the registry of the mortgage. Frost cannot be in a worse situation by paying money before CorPs title was perfected, than if he had paid it immediately after. As a bona fide purchaser without notice, an^ so long as that character is preserved, he is not bound beyond the sum in the registered mortgage ; and though no prior transaction between Corl and him could gain a preference over the mortgage as registered, because Corl had no title until the delivery of the deed to him, in consequence of that registry, yet, when the delivery took place, the prior deed to Frost, and the prior record of it, operated, instantly, so as to protect Frost's title from that time,. and to render him a bona fide purchaser, except as to the registered mortgage. It follows, of course, that all prior payments made by him, became equally effectual, subject to the same limitation. A contrary rule would work odious injustice. The subject of the payments requires this further expla nation : and payments to the endorsee or assignee of Corl, before notice, are the same as payments to him ; and if any part of the debt created by the purchasers, or either of them, had been duly transferred, so as to vest the interest in the assignee ; and if either Frost or Goddard, before notice, had changed the debt in the hands of the assignee, by giving new notes or obligations to the bona fide holder, he ought to be allowed for this as payment, because he has [ * 304 ] extinguished *so much of the old debt, and become absolutely bound to the new creditor. I shall, accordingly, direct a reference to a master, to state an account upon these principles, and to report what may have remained due from Frost and Goddard, on the 1st of October, 1807; and whatever that balance may be, it is 242 CASES IN CHANCERY. 30-1 justly subject to the defendant's mortgage, and must be 1814. appropriated in part satisfaction of it before the land can be -^.^-sy"^^- relieved. Frost V. Beckhah " Ordered, adjudged and decreed, that it be referred to one of the masters of this Court, residing in the county of Onondaga, to ascertain and report what sum or sums of money were actually paid to Henry Corl, or to his endorsee or assignee, duly authorized to receive the same, by Josiah Frost and Martin Goddard, respectively, before the first day of October, 1807, on any purchases mentioned in the pleadings in this cause, and made by them, or either of them, fi-om him, prior to that date, of lands in lot No. 33, in the township of Marcelhis ; and that the master distinguish between such payments as were made for principal, and such payments as were made for interest. That he also ascertain, and report specially, whether any, and what part of tiie debts arising on such purchases, were transferred by Henry Carl, for a valuable consideration, and were dis- charged in the hands of the bona fide holder, prior to that period, by Josiah Frost and Martin Goddard, or either of them, by new notes or obligations ; or, if not discharged, of which they had received notice from the assignee before that period. And the master is further directed to state an account of the moneys due on the respective purchases, for principal and interest, after deducting the payments which may have been made, and the parts of the debts discharged or assigned, with notice as aforesaid. And the master is further ordered and directed to ascertain and report the amount of the principal and interest due on the mortgEige *given by Henry Corl to the defendant, according to the * SOf) | true sum mentioned in the mortgage, and, also, according to the sum mentioned in the registry thereof ; and in taking the accounts aforesaid, the depositions and exhibits in the cause may be used by the parties ; and they are to be at liberty to produce further proof, which the master is also to report; and all further questions are in the mean lime reserved." 243 305 CASES m CHANCERY. 1814. ^°^° Long against E. L. Majestre, (Administratrix of Ma^istke. Wm. Majestre, deceased,) and Tardy. A creditor filing a bill 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 delator, or in some other special case. As >vhere A. and B. carried on trade, as partners, with the funds of A., in the narne of B., and, without any dissolution of the partnership, or rendering any 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 bill agp.inst his administratrix, and C.j his surviving partner, for a discovery and account; and C. demurred to so much of the bill as sought an account from him of the transactions and profits of the part- nership between him and the intestate, and of the personal estate of the intestate in his hands : the demurrer was overruled. October 3a. THE plaintiff stated in his bill a large claim against the estate of William Majestre, deceased, and alleged, that be- ing a merchant at Marseilles, in France, he entered into partnership with the intestate, who was a merchant in Newr Yorjc, in the year 1807 ; that the intestate brought no funds into the capital of the house, but carried on trade solely with, the funds of the plaintiff, and in his own name, but for the partnership account, but had rendered no account to the plaintiff; and had, without the consent of the plaintiff, or any dissolution of their copartnership, afterwards, entered [ * 306 ] *into partnership with the defendant, Tqr-dy, and had carried fill the funds of the plaintiff, in his hands, into the last co partnership, and used them tfierein, until his death, in 1814 ; and the plaintiff, therefore, claimed to be entitled to the whole share of the intestate in the last partnership. The bill also alleged, that a great part of the persopal estate of the intestate had come into the hands of Tardy, and, among other things, prayed that Tardy might be compelled to set fprth a full and true account of the partnership transactions between him and the intestate, and of the profits, &c. ; and that he might set forth and declare whether the intestate did not leave a considerable personal estate in his hands. The defendant, Tardy, demurred to so much of the bill as called for the discovery of the above facts, &c. T. A. Emmet and Harris, for the plaintiff. Burr, contra The Ch iNCELLOE. It is, no doubt, the general rule of this Court, that the creditor filing the bill against the ex- 244 CASES m CHANCERY. .3^ ecutor, cannot make a debtor of the estate a party, foi this 1814. would be taking the business out of the hands of the execu- Iv-.*-n/-^»_x tor, and would lead to confusion in the administration of Lohg the estate, as every creditor would then be entitled to such majestrk a bill against every debtor. The same cases, however, ad- mit that there are exceptions to the rule, as -where the ex- ecutor is insolvent, or there is collusion between the execu- tor and the debtor, or where there is some other special- case not exactly defined. {Vtterson v. Mair, 2 Veiey, juh. 94. Ahager v. Ro'teley, 6 Ves. 748. Burroughs v. Elton, 1 1 Vesr. 29.) As there is no suggestion of insolvency in iAe administrator, or of collusion, this case does not fall within those exceptions. But the strotig objection to the demurrer is, that this is a special case, not within the reason of the general rule. It is more like the case of one partner call- ing *the othei" to account ; for, taking the charges in the [ * ?0T 1 bill to be? true, as we must do in judging of the demurrer, the plaintiff was tli6, ce'stay que trust, for whose use, and with whose money, the intestate carried on trade with the defend- ant : and, as Lord HarAwicke observed, in Newland v. Champion, (1 Ves. 105.) the case of partnership is very different froni the other cases, and tliere were many instances where the surviving partner of a deceased debtor was made a party, so that there might be an account of the personal estate entire. And he said, in that case, that though there was no suggestion of collusion' between the surviving part- ner and the representative of the deceased, yet the bill was not demurrable to, aiid ah account Was accordingly directed between the creditor of the deceased partner and the survi\ar. In this case, it appears to nie, independent of all authority, that the plaintiff, upon his bill, is most fitly entitled to call froin the defendant a full account of the lat- ter copartnership, and that he can obtiain such" an account from no other source so fiilly and effecflially as from the defendant. Tardy. The demtiixer i^, accordingly, overruled^ with costs. Ifecree accordingly. 245 308* CASES [N CHANCERY. 1814. Garsoh V. ' Greek. *Garson against Green and others. [Distingmehed, 56 Iowa 131. See 1 Paige 30; 9 Bradw. (Dl.) 448.] A vendor has a lien on the estate sold, for the piirchaae mbney, ■whila the estate is in the hands of the vendee, and when there is no contract by, which it may be implied that the lien was not intended to be re- served. Prima facie, the purchase money is a lien, and it lies on the vendee to show the contrary: and the death of the vendee does not alter or defeat the lien. Nor does the taking a promissory note for the purchase money affect the lien ; and, if part be paid, the Ken is good for the residue ; and the vendee is a trustee for what is unpaid. October 7ih. THE bill' Stated that the plaintiff sold to James Green, now deceased, intestate, in his lifetime, the one undivided third part of a house and lot of ground, of which the intestate was seised of two undivided third parts, in fee ; and for which he was to pay the plaintiff 700 dollars, 200 dollars in cash, and the residue in 55 days, for which he was to give his promissory note; that on the 2d of December, 1807, the plaintiff executed and delivered a deed to the intestate, for the plaintiff's undivided third of the premises, and the intes- tate paid him the 200 dollars, and gave him a promissory note, dated the 1 2th oi December, 1807, for 500 dollars, pay- able in 55 days after date. Before the note became due, the intestate died, leaving Margaret Green, defendant, his widow, who took out letters of administration on his estate, and the other defendants, his heirs at law. The administratrix having refused to pay the note, the plaintiff brought an action at law against her, to which she pleaded pZene administravii ; and the plaintiff, being unable to prove assets in her hands, took judgment for assets in fu- turo, to the amount of 535 dollars and 19 cents, and the costs of suit. The plaintiff alleged that the intestate died seised of the house and lot above mentioned, and other real estate in New-York, and left considerable personal estate, which came into the hands of the administratrix. [ * 309 ] *The bill, as to the administratrix, was, under the order of the Court, taken pj-o confesso. The other defendants, by their guardian, answered, and admitted the sale by the plain tiff to their father, the intestate, and that he owed to flie plaintiff the amount of the note ; but whether it was for part of the consideration money for the house and lot, they were ignorant. The material allegations in the bill were proved by the witnesses. 246 CASES IN CHANCERY 309 Slosson, for the plaintiff. 1&14. Blake, contra. Gabsoh V. T • • 1 n 1 Gkeeh. The Chancellor. It is very evident, from the proof, that the note was given in part payment of the considera- tion for the sale, by the plaintiff, of his undivided third part of the house and lot mentioned in the pleadings ; and there is no evidence that the vendor did not mean to trust to the estate sold, as a pledge for his money. It is a well-settled rule, (G Ves. 483. 759, 760. 1 Schoale Sf Lefroy, 132. 1 Bro. 420. Sugden, ch. 12. p. 352.) that the vendor has a lien on the estate for the purchase money, while the estate is in the hands of the vendee, and when there is no contract that the lieu by implication, was not intended to be reserved. Prima facie, the purchase money is a hen on the land, and it lies on the purchaser to show that the vendor agreed to rest on other security. The death of the vendee does not alter the claim ; for, as Lord Redesdale observed, in a like case, {Hughes v. Kearney, 1 Schoale &/• Lefroy, 132.) " the heir cannot be permitted to hold what his ancestor uncon- scientiously obtained ; and is not a thing unconscientiously obtained when the consideration is not paid ?" Taking a note for the purchase money does not affect the vendor's lien ; and if part be paid, the lien is good as to the residue, and the vendee becomes a trustee as to that which is un- paid. (Blackburn V. Gregson, 1 Bro. 420.) The *failure [*310' of the personal estate is sufficiently shown in the first in- stance ; and there is nothing to gainsay it ; and I shall, ac- cordingly, decree a sale of the one third of the house and lot, towards satisfaction of the note. Decree accordingly. 247 ,ilO CASES IN CHANCER/. 1814 AsTOR against Romatne and others. ROMAVNZ. [Eeferred to, 9 Paige 292.] Sale of mortgaged premises, under a decree, wiU not be postponea mereJy on account ofi the existence of war ; war, as a general calamity, not being sufficient to justify the Court in interrupting the regular ad ministration of justice, and the collection of debts. But if it sheuM be made satisfactorily- to appear, that there was any in, mediate or impending calamity ov'er the city, or place, where th« mortgaged premises were situated, which .would cause a. suspensibn' of all civil business, the Court would interfere, and postpone the sale. A- sale of mortgaged premises was postponed for six weeks, to give-, the mortgagor an opportunity to comply with the proposal of the mort- gagee, such, delay being equally beneficial to both parties. Btpt. 23d ana MOTION, on the pajt of the defendant, to postpone the- Oct 11th. master's sale of mortgaged premises on affidavit of the de- fendant, Romayne, stating that the bill was filed in March, 1811, that, in the latter part of the year 1812, the defendant agreed ta relinquish alL opposition to the suit, and to give the plaintiff a decree, by consent,, for ^38;595 75, provided he would wait until the 1st day of Septemier,A8i4, for pay- ment ; and a. decree was entered in pursuance of that agree- ment. That the agr«ement was made under the firm per- suasion: that the war would; have speedily ceased, and that; if the defendant should not be able to raise the money out of the property mori!^age(^ the, property would rise in value That he hasibeen disappointed, and' the plaintiff bad adver tised the property for sale on the 26th. instant ; and that the 1*311 I plaintiff and themaster *have" refused to postpone tbie; sale; That the deponent verily believedi the property mortga^xl. for the debt would be worth, in: ordinary times, ^45,000j but in the present critical and alarming state of affairs in New-' York, could not be sold for half its value. It appeared that the notice given of the motion was four days short of the time required by the rule of the Court. Van Vechten, for the defendant, cited the case of Alex- ander Macomb, at the suit of Corp, Ellis and Shaw, in which there was a sale of a large real estate, in and near Neiv-York, advertised for the 18th of July, 1810, and the day for the sale had been fixed by consent ; but the de- fendant, on due notice, petitioned the chancellor for a post- ponement of the sale, on the ground that most of the moneyed purchasers of land were in the country, and that the season of the year was most unfavorable ; and though the motion was opposed by counsel for the plaintiffs, the chancellor, by a special order of the 14th of July, 1810, postponed the sale to the 2d Monday in November following. He als« 248 CASES IN CHANCERY. 311 cited 4 Brtf. 1071—2. 113 — 172, and 2 Powell on Mortgages, 1814. The Cha-ncello». The case of Cocker v. Beavis, (1 Ch. Mep. 134, and 1 Ck, Cas. 61.) shows that chancery has enlarged the lime for the performance of a decree, though that decree was entered by consent, on a bill to redeem a mortgage, and the time of payment was fixed by the decree. In that case, the default of the patty was not wilful, but arose from necessity, growing out of the civil war. There' is some analogy between that case and this ; and in another case, of hmoord v. Claypool, (1 Ch. Rep. 13&.) the Court enlarged the time, after the enrolment of the decree, six months, to pay the mortgage money. I do not know that those cases have been acted upon in modern times, and the application, in this case, is defective, being on short notice : *the most I am willing to do, is to direct the master to post- pone the sale from the 26th instant to the second Monday in October, to give the defendant an opportunity of applying regularly to the Court. ♦ ASTOB V. Ro>fATN£. [*312 S. Jones, jun., for the defendants, on an affidavit read on oitoia-Uth. the former motion, and several other affidavits to the like effect, now moved for a postponement of the sale for six months. He cited 2 Equ. Cases, Abr. 609. S. C. 15 Vin. Ab. 476. (z. 2.) 2 Powell on Mortgages, 311. Barm. Rep. 221. Harison and Bobinson, contra It appeared that the plaintiff had offered to the defendant to wait two or three years for the principal, if the defendant would pay him arrears of interest. The ofier was now repeated by the plaintiff's counsel, who stated that the rule for the decree, which was entered by consent, contained a stipulation by the defendant, that he would not apply to the Court for delay. The Chancellor. The esstfence: of the vi^ai*, as a gEnerai calamity, will not justify Courts in interfering to inteitupt' the regular administration of justice, and the col- lection of debts. The onlyplausible ground of the motion is the special state of the dty of New- York, in which the prop- erty is situated, and the sale to be made. If there were sufficient evidence ofthe existence of any immediate calami- ty, present, or impending over the city, such as invasion by the enemy, or extreme sickfaesis; which would suspend all civil business, the Court otighf to interfere and' postpone the sale. Biit such a case does not exist; The apprehensibn of datiiger Vol. I. 32 249 The existence of war as a gen- eral calamity, 15 ^o reason Tor postponing a sale of mort gaged preiti ises,undera<]c cree. But an imme- diate calamity, as invasion, or sickness, pres- ent, or impend- ing" over the place where the pTemises ar.c sit- uatedj so as to produce a sus- pension^ ot all civil business, wouldjustifythc Court in post- poning the sale ,{12 CASES IN CHANCERY. 1814. fro™ the enemy is too slight, from any thing that has bepa ^^^-v^.->^ shown to the Court, to warrant the granting the motion to Ardeh any considerable extent. If the sale be postponed a few, Ardes weeks, to give the defendant an opportunity to comply with *313 1 tfie offer *of the plaintiff, it is as much as I feel authorized,, to allow. This delay may be equally beneficial to both par- '; ties : the plaintiff is not in distressed circumstances, since he " willing to wait for years, on payment of his interest. It nust also be admitted, that the state of the city of New-Yorlc^,^ 'or some weeks past, under apprehension of invasion, an^ . which apprehension has not yet entirely ceased, deserves' some consideration, and renders a delay of a few weeks de-'| sirable. In that time, business may become more quiet and regular, and more and better purchasers will probably appear. Sale postponed for eight weeks. Executors of J. J. Arden against The Executors or J. Arden. August 29th and October 13th. [*314] In a suit between the representatives of a father, and the representativeSi of his son, where all the matters in controvei'sy 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. Thujgh the statute of limitations is no bar to a legacy, yet the Court, in regard to very stale demands, will adopt the provisions of the statute, in the exercise of their discretion. Though a lapse of 30 years affords a presumption that a legacy has been paid, yet that presumption naay ' be repelled by circumstances. ^ Where a testator directed his executors to sell his real estate, to pay debts and legacies, in case of 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 per-'^ sonal estate was insufficient, the Court directed a master first to ascer- tain and report whether the executors had duly administered all the assets, before recourse could be had to the land, or determining, whether the devisees in remainder were to be brought in. JACOB ARDEN, the defendants' testator, being seised and possessed of considerable real and personal estate, on the *15th of April, 1778, made his last will, by which he gave to his son, the plaintiffs' testator, a legacy of 200Z., payable three months after the testator's death ; and he also' gave a legacy of lOOZ. to his daughter E., and, for want ol 250 CASES IN CHANCERY. 314 cash to discharge the said, legacies, he directed and empow- ]814. ered his executors to sell any part of his estate they might s„^-v„— ^_/ think best, for that purpose. Ardem The estate of the defendants' testator was indebted to the xaotn plaintiffs' testator, for 52 dollars and 36 cents, on account, and for three several bonds, executed by J. Arderl, in 1766, 1767, and 1771, to several persons, and by them assigned to Jaiob J. Arden, in 1787, and 1793, the amount of which, with interest to the 19th of October, 1804, was 1,152 dollars and 35 cents. It was admitted, by the plaintiffs, that lOOL, part of the legacy, had been paid ; but they claimed, as due to them from the defendants' testator, the sum of 2,261 dollars and 6 cents. The, plaintiffs' testator made his will in June, and died in July, 1801. The plaintiffs, in their bill, charged that the defendants refused to give an account of the real and personal estate of their testator, pretending that there was not enough to satisfy the debts and legacies, &c., and that they had no power to sell the real estate, &c. The bill prayed relief, &c., and for ah account, and that so much of the real estate of the defend- ants' testator as might be necessary to pay and satisfy the plaintiffs' claim, might be sold, &c. The answer of the defendants admitted all the ma,terial facts stated in the bill, except the amount of the "debt claim- ed. On the 17th of May, 1813, there was an order of refer- ence to a master; to take an account, and to ascertain and report upon all the matters contained in the pleadings, and, Dy consent, to examine the parties on oath, and all witness- es produced on either side. On the 14th of January, 1814, the master made a report that there was due to the plaintiffs, upon the legacy, bonds, and several accounts mentioned in the pleadings, the sum of *1,435 dollars and 89 cents, accordmg to the schedules an- [ * Sip nexed to his report. To this report the defendants made the following excep- tions : 1. That no credit was given to the defendants for lOOi. stated to have been received, on the 15th of July, 1796, by the plaintiffs' testator, from James Delancey, with interest. 2. That no credit was given for 151. due to the defendants* testator, for house and rent, for S., at H., in 1782. 3. That no credit was given for 336?., for board of plam- tiffs' testator, his wife and children, from 1775 to 1782; 4. Nor for 36/., paid by the defendants' testator for a substitute in the army, for the plain tifis' testator, in 1776; 5 Nor for 1925 dollars, the amount of certificates of 251 :n5 CASES IN CHANCERY. 1814. pa'"t of the estate of the defendants' testator, th<6 inventory v_^~s^-s;i> of which was taken by one of the plaintiffs ; Ardek 6. Nor for 61., for barn rent, &c. in 1782 ; Ari)en '''• Nor for 3?. 2s., for articles furnished plaintiffs' testatoi in 1784. 8. Because Th. Arden, jun. was examined as a witness before the master. 9. Because the legacy, after a lapse of 30 yearsj ought to have been presumed to have been paid. The plaintiffs excepted to the report, because the defend- ants' testator had been credited for a butcher's stall 100?. instead of 111. These exceptions were reserved until the final hearing, of the cause. R. RiJcer, foi? the plaintiffs. Burr, contra'. T&E ChancelloA. The validity of the charges speci- fied- in the exceptions, depended upon the proofe before the master ; and' I see no sufficient reason to interfere with Ms report, in respect to either of those charges' which have not [ * 316 ] *been allowed. Some of thism were not supported by proof, and others do not appear ever to have been made ar^d in- tended, by the defendants' testator, as debts to be refunded by the son. » The transactions referred to are stale and' ancient, and the more loose and difficult to unravel, because they were family dealings, and concerns between the father and son. It would be hazardous to sift too nicely such charges. The master was directed- to take aft account, and' the parties have had a full and fair hearing before hini, as well with their proofs as with- their allegations. The demands- on the part of the plaintiffs were chiefly founded on unquestionable vouchers, sueh'as the will and- the bonds ; aiid the only ob- jection to them arose from the presumption of payment, founded on the lapse of time. But the^' charges', brought forward ort'the part of the defendants-, were destitilte of any real accuracy and authenticity, and seem to have been sel up more for the purpose of embarrassiiig; the countier claims, than from any real sense of their soHdity. The objection to the demands of the' plaintiffs, oh the ground' of time, is', prima fxsbie, of great weight. Aftef a lapse of 40 year^i ahd' when the representatives- of the rtal and pergonal estate were all dead, the presumption of p^y- ihent of a legacy was suffered to prevail,. though the' parties 252 CASES IN CHANCERY. 316 were admitted to make proof to repel the presumption; but 1814. it was not sufficient. {Jones v. Turhwrvilh, 2 Vesey, jun. v,^*~n^-%^>' 11.) And, in a subsequent case, the master of the rolls Ard£k thought that 35 years would be sufficient to bar a legacy, on Ajuits the presumption of satisfaction. (2 Vesey, jun. 272, Pick- enng v. Stamford.) There is lio legal bar by force of the statute of limitations to a legacy. It cannot be pleaded ; but still the Court, justly averse to giving countenance to very stale demands, adopts the provisions of the statute as a guide in the exercise of its discretion. {Higgins v. Craw- ford, 2 Vesey, jun. 571. Prince v. Heylin, 1 Aik. 493. Stackhouse v. Barnston, 10 Ves. 466 — 7.) In the present case, however, the presumption of payment, both as *to the [ * 317 j legacy and the bonds, is sufficiently repelled. The execu- tors, who were to pay the legacy, are alive, and parties to the suit ; and one of them expressly admits, that only one moiety of the legacy has been paid ; and he also admits the payment of interest, from time to time, on the bonds, and that they are still due. In addition to this answer of one of the defendants, he has been examined before the master, under ' the order of reference, and his credit submitted to inquiry. In this case, and upon these proofs, we must take the admission of the only competent executor ; and it will not do to set aside these admissions on mere surmise of some collu- sion. The question, on the fidelity of the defendants, as trustees, is not now in issue ; and it is averred, and so I should infer, (as the objection has not been raised until now,) that the examination of Th. Arden was by consent, and at the instance, and for the benefit of the other defendant ; and if the legacy and bonds are due in any part, interest thereon follows as of course. The exceptions were, accordingly, disallowed, and the report confirmed. As the cause was set down for final hearing, as well as upon the exceptions, another point submitted was, whether a decree for the sale of the real estate ought to be made. The prayer in the bill was for a sale of so much of the r«al estate as should be necessary to pay the debt, and the answer of the defendants admitted the insufficiency of the personal, and the sufficiency of the real estate. The debts were not charged upon the real estate ; but the executors were directed, in case' the personal estate failed, to sell so much of the real estate as should be requisite to pay the legacies. An objection was made, that the devisees were not parties. The cause coming on again, upon this last point, it wag October isik referred back to the master, to ascertain and report whether the executors had duly administered all the assets. This iJ53 317 1814. Stevins V. Beekman 1*318] CASES IN CHANCERY. was necessary to be ascertained, before recourse could b« had to the land, or before it was requisite to determiije *whether the devisees in remainder, after the termina- tion of the life estate of one of the executors, were to he brought in. Order accordingly, (a) (ffi) Note. The question of parties was not, afterwards, agitated, as certain lands were directed to be sold, which the executors had purchased after the testator's death, and with his funds, u Stevens against Beekmat^ and others . [Adhered to, 7 Johns. Ch. 333.] £ An injunction is not allowed, in order to prevent tjie repetition of a iretr pass, in entering and cutting down timber, on land of which the plain- tiff is in possession as owner, and has adequate remedy at law for tM trespass. Though, it sqeras, an injunction may be allowed in a case of trespass, under very special circumstances. t; October idih MOTION for an injunction on a bill, stating that the plaintiff, on the 20th of March, 1806, purchased by deed,iin fee, for a valuable consideration, of Jacob Glen, certaiii lands therein described, in the county of Saratoga, and ad- joining Glen's Falls. That before the purchase, the plain- tiff, for 20 years and upwards, had been in the quiet pos- session of the greater part of the premises, as tenant to Glev, and of the residue for about 3 or 4 years. That Glen had good right and. title to sell. That the plaintiff had con- tiilued, and still was in possession as owner. That about 3 or 4 years ago, the defendant (BeeTcvtan) brought an action of ejectment against the plaintiff, for tiie south or west part of the premises, and which suit had nevtr been brought to trial. That Beekman had no title. That the other two defendants, /. and G. Lumnendall, deriving, of pretending to derive, a title under Beekman, had entered on the premise?, ,and cut down timber, and taken it away, without permission ; ( * 319 ] *and that the part of the premises on which such waste was committed, was principally, if not exclusively, valuable on account of the timber. That the two other defendants were still continuing to cftmmit waste on the premises, and the plaintiff was apprehensive that the defendants would continue to do so, unless restrained by this Court. The plaintiff, therefore, prayed for aniniunction against a repetition of the 254 CASES IN CHANCERY. 3)9 ^trespass, and that the defendants may account for the timler 1814. already cut. v_<*-v'-^_^ The bill was sworn to, and with an accompanying afSda- Steten" vit, that the two last defendants were poor. Beekjuw J. V. N. Yates and Burr, for the plaintiff. , The Chancellor. This is a case of an ordinary trespass upon, land, and cutting down the timber. The plaintiff is in possession, and has adequate and complete remedy at law. This is not a case of the usual application of jurisdiction by injunction ; and if the precedent were once set, it would lead to a revolution in practice ; for trespasses of this kind are daily and hourly occurring. I doubt, exceedingly, whether this extension of the ordi- nary jurisdiction of the Court would be productive of public convenience. Such cases are generally of local cognizance ; and drawing them into this Court would be very expensive, and otherwise inconvenient. Lord Eldon said, that there was no instance of an injunction in trespass, until a case before Lord Thurlow, relative to a mine, and which was a case approaching very nearly to waste, and where there was no dispute about the right. Lord Thurlow had great difficulty as to injunctions for trespass ; and, though Lord Eldon thought it surprising that the jurisdiction by injunction was taken so freely in waste, and not in trespass, yet he proceeded with the utmost caution and diffidence, and only allowed the writ in solitary cases of a special nature, and where irreparable damage might be thei consequence, if the act con- tinued. *It has also been allowed in cases where the tres- [ * 320 ] pass had grown into a nuisance, or where the principle of multiplicity of suits among numerous claimants was applica- ble. {Mitchell V. Dors, 6 Ves. 147. Hansen v. Gardiner, 7 Ves. 305. Smith v. Collyer, 8 Ves. 89.) There is the less necessity for the interference of this Court, since the statute (N. R. L. vol. 1. 525.) makes the cutting down timber a misdemeanor punishable by fine and impris- onment, and also gives the party injured treble damages. There is nothing in this case so special and peculiar as to call for this particular relief, and especially, when I am not justified by any established practice and precedent. Motion denied. 255 320 CASES IN CHANCERY. 1814. Smith V. LowBV. October L6th. [ * J21 ] Smith and Mead against LowRr. [Followed, 3 Jolms. Ch. S32. See post *4S3.} An injunction will not be granted to stay proceedings at law, on a judg ment, on the grouiyd that the defendant at law was prevented, by pub. lie business, from making due preparations for, and attending at, the trial ; and that the plaintiff had, on the evidence of one witness, whom he had suborned to swear falsely, recovered a verdict for a much larger suni in damages than he was justly entitled to ; and iiat line Supreme Court had refused to grant a new tiial in the caflse. THE bill, which was for an injunction, stated, that in May, 1811, the plaintiffs contracted to deliver to the defendant, in satisfaction of a debt of 675 dollars, owing to him, 140 barrels of salt, at Portland, on the southerly side of lake Erie, on the 1st of September, 1812. That war intervening with Great Britain, and obstructing the communication between the salt works at Onondaga and that place, the parties agreed that the contract should be satisfied by the payment of 100 dollars in cash, and a quantity of hats, > *and the residue in salt, to be delivered at Lewistown, in Niagara county, at the market price. That the plaintiffs were ready to perform the contract, but that the defendant was not ready to receive. That the defendant, afterwards, sued Smith, in the Supreme Court, on the contract first made, and the cause was brought to trial at the Onondaga circuit, in June, 1814. That Smith, for some weeks previous tO' the time of trial, being engaged in public business, in trans- porting public stores from Oswego Falls to Sacketfs Har- bor, could not be allowed to quit the public service, to prepare for the trial, so that due preparation, on his part, was not made. That, at the trial, the present defendant proved, by one witness, that on the 1st of September, 1812, he sold 18 bushels of salt, at Portland, for 12 dollars a barrel ; and, on this evidence, a verdict was found for the plaintiff" in that suit, estimating the salt at that rate, for above 2,000 dollars That Smith, at the last August term of the Supreme Court applied for a new trial, on affidavits of seven witnesses re siding' at Portland, that the price of salt, in that place, in September, 1812, was 8 dollars a barrel; that the village was small, and half the quantity contained in the contract would have overstocked the market ; but the Supreme Court refused to grant a new trial, merely to enable the party to diminish the damages. That, since the trial, 1he plEuntiffs have discovered that the witness produced by the present defendant, at the trial, was procured by subornation and corruption ; that the defendant procured the witness, as his 256 CASES IN CHAN(;ERY. 321 a^ent, to make a pretended sale of 13 bushels of salt, to a 1814. purchaser, suDsiituted by the defendant for that purpose, at -._rf»-v^>*»_^ the rate of 12 dollars a barrel, which sale was not bona fide, Smith bui collusive ; that the same 18 bushels were purchased at lowrv, Portfcrti,, about the 1st of September, 1812, at 8 dollars per barrel. That h fi. fa. had been issued on the judgment of the Supreme Court ; and the plaintiffs prayed an injunction, &c. *GoU, for the plaintiffs. [ * 322 ] The Chancellor. This is not a case in which the October i6ik. Court can interfere with the verdict and judgment at law. The plaintiff, Smith, was in public employment for some weeks previous to the trial ; but he was, at the time, in or near the county of Onondaga, and he had an attorney and counsel employed to attend to his cause ; and it does not appear that any application was made, on his part, to the Circuit Court, to postpone the trial. He must have known, or he was bound to know, that he was sued upon the origi- nal written contract mentioned in his bill, and that the price of salt, at the place of delivery, on the 1st of Septem- ber, 1812, would be a matter of inquiry at the trial. He may, therefore, be considered, from his own statement, as having voluntarily gone to trial on the question of damages, as to the value of the salt, and the application for a new trial was not on the ground of irregulafity or surprise, but on the dis- covery of testimony, to prove the damages excessive. The only new ground of equity set up is, that, since the applica- Mon for the new trial, he has discovered that the testimony uf the witness, who proved upon the trial the price of salt at Portland, was procured by subornation and perjury, and that his testimony was founded upon a fictitious sale, con- trived for the occasion. But the general rule at law is, that !i new trial is not to be granted to give the party an oppor- tunity to impeach the credit and integrity of a witness. (Duryee v. Dennison, 5 Johns. Rep. 248.) This case re- solves itself into a mere question of excess of damages, arising from the want, as the bill expresses it, " of due prep- aration" when the plaintiff went to trial. The fraud al- leged in procuring the testimony of the witness could have been sufficiently repelled and defeated by the testimony of the witnesses since procured, as to the true state of the market, and the true price of salt at Portland, at the time fixed by the contract for the delivery. The plaintiff. Smith, had ex- cessive *damages g'ven against him, at' the rate of 12, in- [* 32S ] stead of 8 dollars a barrel for salt, merely because he went to trial unprepared. The cases of relief in equity, against Vol. I. 33 25"? 223 CASES IN CHAIN CERY. 1814. judgments at law, founded in fraud, lire, when the fraud goes .,.^-v—w^ to the whole judgment, and not to the mere excess of dam- Smith ■ ages in a case properly sounding in damages ; and when LowBY. ^^^ fraud could not have been met and defeated at the trial. It would be setting a precedent most inconvenient to the public, for this Court to interfere in a case like this, of the alleged perjury of a witness, on a question as to the amount of damages, and to provide for a new trial when an applica- tion for a new trial has already been denied at law, and when Courts of law exercise a most liberal and equitable discre- tion on the subject of new trials, and when the injury com- plained of is, in a great degree, to be imputed to the party's own want of preparation. Applications to this Court for a new , trial, after a verdict at law, are very rare in modern times, since Courts of law exercise the same jurisdiction, and to the same liberal extent. In the late case o{ Bateman v. Willoe, (1 Schoale ^ Lefroy, 201.) Lord Redesdale observed, that "a bill for a new- trial was watched by equity with extreme jealousy, and it must see that injustice has been done, not merely through the inattention of the parties ; and he held it to be unconscien- tious and vexatious, to bring into a Court of equity a dis- cussion which might have been had at law." Even iii the old cases, and before new trials were much known and used at law, the Court of Chancery proceeded with great caution in awarding a new trial at law. In- Curtis v. Smallridge, (1 Ch. Cas. 43. 2 Freeman, 178.) the bill was he reliel against a recovery in trover; and though it appeared that the recovery was unjust, and had so been admitted by the plaintiff in law, yet, as it did not appear that the defendant at law was prevented by accident from having his witnesses at the trial, the master of the rolls would not grant a new trial [ * 324 ] for the neglect of the party, and so dismissed *the bill. In Tovey v. Young, [Free, in Ch. 193.) the bill for a new trial at law was dismissed, though the plaintiff had discovered, since the trial, that the principal witness against him was interested ; and the lord keeper observed, that "new matter may, in some cases, be ground for relief, but it must not be what was tried before ; nor, when it consists in swearing only, will I ever grant a new trial, unless it appears by deed or writing, or that a witness, on whose testimony the verdict was given, was convicted of perjury." And Lord Hardwickt, in Richards v. Symes, (2 Atk. 319.) refused a new trial on the suggestion that the party was not apprized of a particu- lar evidence, and, therefore, not prepared to meet it. Tht chancery cases have generally agreed in granting a new trial at law, on the discovery, since the trial, of a receipt or ac quittance in full of the demand, ("the master of the rolls, in 258 CASES IN CHANCERY. 324 The Countess of Gainsborough v. Gifford, 2 P. fVms. 424. 1814. Hennell v. Kelland, 1 Eq. Cos. Mr. 377. and 2 Vern. 437., v^.^>,.^^i^ cited ib. Williams v. Lee, 3 ^ft. 223.) But since the de- Bbadwxll cision in the K. B., in Marriot v. Hampton, (7 Term Rep. we^ks. 269.) this doctrine seems to be overruled, on the broad ground that there must be an end of litigation ; and it may be questioned whether equity would now interfere, even in this case, after the refusal' by a Court of law. I find that so early as the case of Sewell v. Freeston, (I Ch. Cos. 65.) the Court of Chancery refused assistance where the defendant at law had written a letter which the plaintiff could not prove at the trial, and which would have discharged him. Upon the whole, it appears to me that, under the circum- stances of this case, the plaintiff is not entitled to the inter- ference of this Court to stay execution on the judgment, and that the motion for an injunction must be denied. Motion denied. *W., J. & B. Bradwell, infants, (by their guardian [ * 325 J and next friend,) against Weeks. Infants cannot, by their solicitor or counsel, petition the Court to be re- lieved from the necessity of depositing the sum required by the rules of Court, on entering their appeal from a decree ; but must, as in all other cases, appear by their guardian ov next friend. The 37th Rule of this Court, made June 7th, 1806, requiring the party appealing from a decree or order of this Court, to deposit 100 dollars with the register or assistant register, to answer for costs, &c., is an equitable and salutary rule, intended to prevent delay and abuse. PETITION of the three infant plaintiffs, with their Noi.mberith names subscribed by A. Burr, their solicitor and counsel, stating, that, on the 31st of May, 1814, they exhibited their bill, claiming the whole personal estate of John Bradwell, their deceased uncle ; tnat, " by the derree of this Court, one tb!rJ of the personal estate was directed to be paid to cer- tain persons who were of kin to the deceased, but subjects of Great Britain, and resident in England;" that they deem ihe decree to be erroneous, and wish to enter their appeal ; but that, by the rules of this Court, they are required first to deposit with the register the sum of 100 dollars ; that the plaintiffs cannot command that sum ; and, as the appeal will not occasion delav, they prayed leave to appeal without 259 325 CASES IN CHANCERY. 1814. making such deposit. (Vide S. C, and the decnie of the >_rf»-s^,^-.,,.^ Court, ante, p. 206.) Bradwell Weeks Burr, for the plaintiffs. Riggs, contra. < The Chancellob. The objections to the motion appra*' to. be well taken. [*326] *1. The plaintiffs, beirig infants, cannot act by solicitor in this instance more than in the other proceedings iii tAe suit. The suit was commenced and conducted for them by their guardian and next friend, and no reason appears why the guardian is dropped in this application. It is against the course and order of the Court, and not conducive to the se- , curity of the rights of the parties. The infants should act under the advice and discretion of their guardian or next friend, and the opposite party has, in- such case, a responsi- ble person for costs. The decree is inaccurately stated in the petition ; but as a true copy was annexed, the mistake was capable of cor- rection. 2. As a new petition, in the name of the guardian, might hereafter be preferred, it will be convenient to the parties that I should now consider the fitness of the application upon its merits. The 37th rule of the 7th of June, 1806, requires that the party appealing from a decree or order of this Court, should deposit lOO dollars with the register or assistant register, to answer the costs, if he shall not prosecute the appeal with effect ; and, in default, " proceedings shall thereupon be had, as if such appeal had not been made." If this be a rule just and reasonable in itself, and one which the Court had authority to make, I see no sufficient reason for dispensing with it in this particular case. The practice of the Court ought to be settled and uniform. The object of the rule was to prevent the abuse of suing out appeals for the mere purpose of delay, without any bona fide intent of prosecuting them to effect, by subjecting the pafty, at all events, to the payment of the costs, which his appeal necessarily produces. The practice with us is to lodge the appeal in the register's office ; and the Court above is not considered as possessed of the jurisdiction of the cause, until the petition of appeal has been presented to them, and which cannot be until they are in session. Without this I * 327 ] *deposit, a cause might be delayed in this Court during the who^e vacation of the Court of Errors (which is generally from A;pril to Fehruary,) and the appeal be then abandoned 260 CASES IN CHANCERY. .J'2T without any means of affording indemnity for the costs in 1814. the mean time accrued. The Court above cannot award -..^,,^-^.^~-,^ costs unless they are possessed of the cause, and that cannot Brahwel' be until the petition of appeal is presented to that Court, and w'et'ks. filed. If an appeal, then, be lodged in the register's ofiice, according to our practice, and, perhaps, soon after the ad- journment of the Court for the Correction of Errors, it must rest in the discretion of this Court to determine, in the first mstance, whether that appeal shall be a stay of proceedings. The most intolerable abuse would otherwise arise under the practice of appeals ; for, as Lord Eldon observed, if a peti- tion, even to stay proceedings in a cause, were refused, the party would have nothing to do but to appeal from that or- der, and thus carry his point. There must, then, as I had occasion lately to consider, in the case of Green v. Winter,f t ■4"'-e, r- '^ be a power and a discretion in the chancellor, as there is, on error, in a Court of law, (Entwistle v. Shepherd, 2 Term Rep. 78. Kem-pland v. Macauley, 4 Term Rep. 436.) to de- termine, in the first instance, upon the operation of the appeal, and to what extent, and upon what points, it shall stay proceedings. The object of the rule was to prevent the abuse of lodging an appeal in the register's oifice, and delay- ing the cause, and putting the officer to the expense of making out the requisite transcripts, and the opposite party to the expense of preparing to meet the appeal, and then abandoning the appeal before it had ever been duly pre- sented to the Court above, by which means that Court could not award costs. After the Court above has become pos- sessed of the cause, so as to do justice between the parties, by preventing delay and awarding costs, the necessity of the deposit ceases. The object of the rule is not to restrain appeals, (for this Court does not pretend to any such power,) but merely to *pre- [ * 329 " vent a stay of proceedings without the deposit; and, in this view, it is a just and salutary rule, and within the ordinary powers of the Court. I nave conversed with my predecessor, who made the rule of 1806, and he gives the view of it which I have stated : he says he found a similar rule existing when he came into this Court, which was made by Chancellor Livingston, in the early history of the Court. After such a sanction and usage, it would not be becoming in me to reject the rule at once, as unfit and illegal. I ought to be taught its incon- venience by experience, or become persuaded, upon the fullest consideration, of its illegality. The practice of requiring deposits of money to meet costs, is common in the English chancery. A rehearing will not be granted without a deposit of 201. {Our. Can. 343. 261 323 CASES IN CHANCERY. 1814. Wyitfs P. R. 369.) nor a billof review with put a deposit — -'-N^-'"*-' ofSOZ. ; (^Gil/iert's Forum Romanum, 186.) anc 1 yet a rehear- Bkadwkll ing and a review are remedies to which the party aggrieved vvej-ks. has as perfect a right as he has to an appeal. The statute organizing the Court of Errors, and which grants the appea., is not to be construed so strictly as to preclude all checks upon the abuse of appeals ; for, to prevent the abuse is in furtherance of the due exercise of the right. The statute is as much binding upon the Court above, as upon this Court, and if it renders the rule of this Court illegal, it would equally prohibit any similar rule in the Court above ; and yet I presume it will hardl) be contended that the Court above has not competent power to regulate the practice on appeals, and to require of the appellant even security for costs on filing his appeal. In the English house of lords, there is a standing rule of the 26th of January, .1710, that the appellant shall, in 8 days after the appeal is received, give security by lecognizance in, 200L to pay costs, if the decree be affirmed ; and I have no doubt that the Court for the Correction of Errors, in this state, is competent to make a similar rule. It has always been supposed that it had au- [ * 329 ] thority, *as a necessary incident to its jurisdiction, to ren- der its practice conformable to that of the house of lords in England, when sitting as a Court of appeal ; and such was the declared sense of the Court, by its 6th rule, of February, 1786. Upon the whole, it appears to me that the rule in ques- tion is fit and proper to prevent the .abuse of appeals, by suing them out merely to gain time, and avoid costs; and that it ought to continue until this Court is better advised of its unfitness, or until the Court above shall hava made some other or further rule on the subject. Motion denied. 262 CASES IN CHANCERi. 329 1815. J3uNN and others against Winthrop and others. [Relied on, 1 Sandf. Ch. 261.] iV voluntary conveyance or settlement, though retaine" by the grantor, in his possession, until liis death, is good. As between the parties, a voluntary actual transfer, by deed, of a chattel interest, is valid, without any consideration appearing. In regard to chattel interests, an agreement under seal iinporta a consid- eration at law. And a voluntaify bond, or deed of a chattel interest, will be supported in equity, without consideration. A cestto) que trust, though a mere volunteer, and the limitation without consideration, is entitled to the aid of this Court ; but the rule is oth- erwise where the party seeks to raise an interest by way of trust, on a covenant or executory agreement. Provision for the mother of a bastard, and for her infant, is a sufficient consideration to support a bond, or a deed of personal chattels, made by the father of the child for that purpose. I'late used in the family passes under a devise or conveyance of " house- hold goods and furniture." THE bill in this case stated, that Thomas Marston, de- ceased, being seised of a large real and personal estate made his will, on the 27th of July, 1808, by which he de- vised parts of his real estate to his grandchildren, and made *some of the defendants his executors. The testator died January 11, 1814. Hannah Curry, one of the plaintiffs, separated from hei husband, John Curry, and, by articles, dated July 3, 1802, mutually entered into between them, by means of William Bunn, plaintiff, as trustee, with sureties, she was allowed to live separate from her husband, and enjoy all her estate and property, to her sole and exclusive use. Mary Bunn Marston, an infant, also one of the plaintiffs, was the natural child of the testator and Hannah Curry. For about 18 years previous to the death of the testator, Hannah Curry resided in his house, and had the care and management of his family, as his housekeeper, the testator being upwards of 70 years of age at the time of his death. The testator repeatedly declared his intention to make provision for Mrs. Curry, and his infant daughter by her , and from motives of gratitude towards her, for hei" long and faithful services, and a sense of moral obligation to pro- vide for her daughter, the testator did, on the 26th of Feb- ruary, 1811, make and execute a deed, by which he grant- ed and conveyed to the defendant, Winthrop, a house and lot of ground in the city of New-York, free from ground rent, during the term for which the testator held the prem- ises, to receive the rents and profits, and apply the same to the support and maintenance of Mrs. Curry during her nat- ural life ; and, after her death, he granted and conveyed 263 Busk V. Winthrop 1815. January I6ih. [*330] WlNTHROP. 330 CASES IN CHANCERY. 1815. the premises to his natural daughter, Mary Bun: Manioli^< _^~v.-^_^ her heirs and assigns; and by the same instrument, the tea.j BuNN tator further gave to Mrs. Curry, " so much of his furniture and household goods, then in his house, as she could think sufficient towards furnishing a house in a genteel style ;" and all the residue of his furniture and household goods He gave to the said Mary Bunn Marston. This deed, duly signed, sealed, and delivered, by the tes- tator, in presence of two witnesses, was, by him, enclosed, under cover, with his last will, and was found so enclosed, [ * 331 ] *after his death, by his executor, Winthrop, who delivered the same to Mrs. Curry. Winthrop, the defendant, is the only acting executor. The furniture and household goods continued in the house of the testator until his death ; and he left a large real and personal estate, over and above pll his debts. That the defendants object to the deed in favcr of Mrs. Curry, alleging it to be of no validity as a deed, for want of delivery to the grantee ; and because the testator retained the possession of the goods ; and that it is also in- valid as a testamentary disposition, there being no words to show a testamentary intent. The bill charged that the phtt, in the house of the testator, was used as part of the furni- ture, and prayed that the defendant, Winthrop, might elect to accept or decline the trust declared in the deed.; and that if he should decline, that he might be directed to bring the lease into Court ; and that the Court would appoint a trustee; and that the defendant, W^jnitArop,be directed to furnish an inventory of the plate, furniture, &-c. ; and th^t the Court would decree the instrument above mentioned valid as a deed or testamentary disposition, &c. That the plaintiff, Mrs. Curry, be at liberty to elect and take her portion of the furniture, &c. ; and that the residue be de- livered to the guardian of the infant, Mary Bunn Marston, or otherwise be disposed of for her benefit, &c. The defendants, in their answers, admitted the facts stated in the bill, and the execution of the deed ; but they denied its operation or validity, or that it was delivered by the tes- tator, unless its remaining in the manner stated in the bill amounted, in law, to a delivery ; and the defendant, ?f*nMro^) expressly refused to accept the trust, or act as trustee ; and he annexed to his answer a copy of the inventory of the household furniture of the testator, including his plate ; and it was admitted that the testator left a clear estate of the value of 160,000 dollars, over and above all debts and en- cumbrances. *332] *Slosson, for the plaintiffs, contended, 1. That the deed was a valid settlement, and a revocation, wo fonfo, of th« 264 CASES IN CHANCERY. 332 'vill; that -such a voluntary settlement is good; that the 1815. possession of the deed by the grantor, until his death, did <^,^-s^-*^ not invalidate or defeat it. ( Villers v. Beaumont, 1 Vernon, Buns 100. Bale v. Newton, id. 464. Boughton v. Boughton, 1 Yy,g.f„[jf,, Atk. 625. Barlow v. Heneage, Free. Cli. 211. Clavering v. Clavering, 2 Fernon, 473. S. C. Free. Ch. 235. 1 Bro. F. a 122.) 2. That if the deed was not valid as a- voluntary settle- ment, it was good, at least, as a testamentary disposition, in the nature of a codicil to the last will and testament of the grantor. (^Ousely v. Carroll, and Spargold v. Spargold, cited and commented on by Lord Hardwicke, in Ward v. Turners, 2 Ves. 440. Rigden v. Vallier, 2 Ves. 252—258. Feacock v. Monk, 1 T^es. 127. 1 Swinburn on Wills. Fowell's ed. note, p. 74. part 1. sec. 10.) 3. That the plate passed under the general words " house- hold goods and furniture." , (Roper on Legacies, ch. 16.) Harison, for the defendants, did not deny the general doctrine as to voluntary settlements, but contended that, in all the cases cited, the voluntary deed was good on the face of it ; and that no instance could be cited where a mere voluntary conveyance, not valid at law, had been made valid in equity. (1 Fanbl. Equity, 339. et seq.) In this case, there was no legal consideration for the deed, to make it avail to the cestuy que trust. The claims of Mrs. Carry were liot of that meritorious nature to give legal effi- cacy to the deed ; and her daughter could not, in law, be so considered the daughter of the testator, as to create the L'onsideration of natural love and affection to support a cov- enant against him or his representatives. (Free, in Ch. 475. 2 Fes. 182.) As it respected the leasehold estate which this instrument was to convey, it was not a bargain and sale, for want *of a [ * 333 valuable consideration ; it was not a covenant, in the nature of a covenant to stand seised, because there was no legal relationship between the grantor and cestuy que trust ; it was no demise, for there was no reversion or rent reserved ; it was not an assignment of the term, for the assignee must hold subject to the rent. As to the donation of the house- hold furniture, it derived no additional validity from the deed ; it would be equally good if it had been hy parol. In either case, a delivery is necessary to consummate a gift. The testator might have revoked it when he pleased, and liis representatives cannot be bound where the testator was at liberty. As to any possession by Mrs. Curry, it could be only that of a servant, which is a possession for the master. {2 Vesey. 438.) Vol. i. 34 265 WiNTHROP. 333 CASES IN CHANCERY. 1815. ^t '® ^^^ denied that a will, or codicil, may be in the font) : ^^.^-sy^ of a deed ; but, then, it must appear, from the face of the • BuNN iijstrument itself, that it was intended to opera !e after the death of the party ; or, in other words, that it was testa- mentary. Such was the case of Peacock v. Monlc;. but the i plaintiff did not claim under a will, and unless the convey- ance was established as a valid deed, he could not recover. ■. The face of the paper itself does not contain any feature of , a testamentary disposition. But whatever may be its com- plexion, this Court cannot establish it ; nor can the plaintiffs ' found any claim on it, as a testamentary disposition, until it has been proved in the Court of the surrogate. To that Couft, with the right of appeal to the judge of probate, and to the Court of Errors, is committed, exclusively, the power of determining every thing appertaining to the proof of a will, and every part of it relating to personal property! '^ Even in cases of fraud, so peculiarly within the jurisdiction of this Court, if relating to obtaining of wills of personal estate, resort must be had to that tribunal which, in testa- ' mentary causes, exercises the power and jurisdiction of the spiritual Courts. (2 Vernon, 8. 76. 1 Fonbl. Equ. 12. 2 * 334 J Fonbl Equ. 379, 380.) The plaintiffs have, therefore, *mis- taken their remedy ; and should this Court even think that the paper ought to be regarded as a testamentary disposi- tion, it ought to dismiss the bill, without prejudice. '■' Slosson, in reply, said, there was a well-settled distinc- tion between deeds for the conveyance of land and those' for the transfer of chattel interests. The former, operating only by creating a use, and the transmission of the posses- sion to the use, required a consideration to create the use, and blood or marriage is necessary consideration in a cove- nant to stand seised, for chancery will not aid a mere volun- teer, by decreeing a specific performance of a covenant. But if the estate passed by the conveyance at law, equity will support it against the donor, as much as if the most , solid equivalent had been paid. {Villers v. Beaumont, 1 Vernon, 100.) Now, a mere voluntary conveyance of a chattel interest in land, or of personal property, as between the parties, there being no fraud or imposition, is valid. A consideration' in such a case is not requisite to be shown, where the contract IS under seal, and the estate executed. This is different from a mere promise or gift, by parol, without consideration, and unaccompanied with delivery, and which is properly de- nominated a nudum pactum. But the mere defect of consid- eration is not the true objection to its validity; but because the law requires a consideration as evidence of the deliberate 266 CASES IN CHANCERY. 334 assent of the promissor; and this assent may be evidenced 1815. by the solemnities with which the contract is made. The <_,*^„--*i^ solemnity of sealing imports a consideration, or, more prop- ' Bknn erly, it precludes the obligor, except in cases of illegality or winthrop. fraud, from averring the want of a consideration. So, cove- nant at law lies on a sealed instrument, and this Court will decree the payment of a voluntary bond. (1 Fonhl. c. 5. s. 1. note (a.) Hard.' 200. 1 Eq. Cas. Ab. 84. 3 Johns. Rejp. 491. 3 P. Wins. 222.) Where a delivery is not essential to transfer the right of property, the solemn execution *of [ * 335 the deed is sufficient. (1 Fonbl. Eq. 338. Plowd. 308.) Tt is to be observed, that the plaintiffs do not seek to estab- lish a defective conveyance, but to prevent a failure of the trust for want of a trustee. (3 P. Wms, 222^ But we contend that, in regard to. Mrs. Oarry, her long services, as well as the reparation and atonement due to her from the intestate, formed a valuable and meritorious consid- eration for the conveyance ; and this is strengthened, also, by the consideration that it was intended as a provision for the child. Numerous cases might be cited, in which past se- duction was held a valid consideration to support a provis- ion for the mother and child. (2 P. fVms. 434. Cas. temp. Talb. 153. Ambler, 520.) Though the blood of an illegitimate child is not sufficient in law to raise a use, yet a use may be declared in favor of a bastard, in esse. (^Co. Litt. 123. a. n. 8.) Again, here is a conveyance coupled with a trust, which, in itself, is a consideration, as it requires an act to be done by the trustee. The grant in this case is not a demise of a term by the owner of the fee, but a transfer by the lessee. We insist, for this reason, that this is a valid conveyance at law, which this Court will not suffer to be defeated by the acts or neg- ligence of the trustee. The Chancellor. The object of the bill is to seek per- formance of the trust created by the deed of the 26th of .February, 1811, by having a competent trustee provided, who will execute it, and by carrying the provisions, in favor of the plaintiffs, into effect. This has led the counsel into a discussion touching the validity of that deed, and how far a Court of equity ought to interfere to aid it. After a consideration of the case, I am induced to coii- clude, that there is no well-founded objection to a decree in support of the subject matter of the bill. *The instrument is good, as a voluntary settlement, though [ * 336 1 retained by the grantor in his possession until his death. There was no act of his, either at the time or subsequent to 267 i536 CASES IN CHANCERY. 1815. the execution of the deed, which denoted an intention cot) s^^-s^-.w trary to that appearing upon the face of the deed. TJi^' Bu.NN cases of Clavering v. Clavering, (2 Vern. 47.3. 1 Brtil Pj w.NTHuop ^- ^^^0 °^ Boughton V. Boughton, (1 ^^J:. 625.) and'of Johnson v. Smith, (1 Fes. 314.) I had occasion lately to ■ /i«te, p. 251. consider, m me cause of Souverhye and wife v. Arden,-\ aiid they will be found to be authorities in favor of the valiiiity and operation of deeds of settlement, though retained by the grantor, under circumstances much less favorable 'to their effect than the one now under consideration. Nor do I think that the want of some good or valuable consideration appearing on the face of the deed ought to preclude this Court from lending its assistance. There is no rule of the Court against giving effect, as between the parties, to a voluntary actual transfer, by deed, of a personal or chattel interest, without any consideration appearing. The rul^'I- apprehend, is directly otherwise, as to personal property, whatever it may be as to real estate. It was said by the chancellor, in Bold v. Corbett, {Free, in CA.,84.) to be dis- cretionary, in a Court of equity, whether it would aid a vol- untary conveyance where there was no remedy at law; and' by looking into the earlier cases, it would seem that there was much floating and unsettled opinion on the question how far equity would help a defect in a voluntary convey-' ance of real property, or decree specific performance in the case of a voluntary covenant. (1 Ch. Rep. 84. Wiseman v.- Roper, 2 P. Wms. 467, 8. Randal v. Randal, 2 Vej£ 365. n. 1 Vern. 100, Villers v. Beaumont.) With resped,' however, to chattel interests, an agreement under seal im- ports a consideration at law. In Beard v. Nuthall, (1 Verni- 427.) a bond, though voluntary and without consideration, was supported by a decree ; and the master of the rolls, in [ * 337 J 3 P. Wms. 222., spoke to the same effect as to a *voluntary bond. But it will be sufficient, on this subject of aidifrg' voluntary agreements, to recur to the distinction declared by' Lord Eldon in Ellison v. Ellison, (6 Ves. 662.) as being one which reduces this point to something like established rule. If you want, according to that distinction, the assist- ance of chancery to raise an interest by way of trust, oii a covenant, or executory agreement, you must have a valuable or meritorious consideration : for the Court, will not constr-' tute you cestui/ que trust, when you are a mere volunteeti' and the claim rests in covenant, as a covenant to. transfer stock. But if the actual transfer be rnadej the equitable in- terest will be enforced; for irhe transfer constitutes the rela- tion between trustee and cestuy que trust, through voluntary and without consideration. To the same effect was the observ^-* lion of Sir Joseph Jelcyll, in Lcchmere v. Earl of Carlisle, (3 268 C4SES IN CHANCERY. dSl P. Wms. 222.) that every cestuy que trust, though a volun 1815. teer, and the limitation without" consideration, was entitled \,^-^,-««^ to the aid of a Court of equity. Buns The deed in question, in this case, was an actual creation ^vutthrop. of the trust and transfer of the specified interest ; and no doubt can arise under the above distinction, even ^ indepen- dent of the operation of the instrument as a deed, that this Court ought to give it effect and performance. If it was necessary to go further on this point, I should be induced to say, that the facts appearing in the bill and an- swer amount to proof of a consideration. One of the plain- titfs is an infant and natural child of the grantor; and the other is the mother of the child, who had resided in the house of the grantor, having the charge of his family for as much as fifteen years prior to the date of the instrument, and while the grantor was, during that time, passing from the age of 55 to that of 70 years. It appears to me that, under these circumstances, the grantor, a man of very large fortune, was bound, in reason and justice, to make compe- tent provision for the mother and the child. Past seduction has been held a valid consideration to support a covenant for pecuniary reparation; *and the innocent offspring of [*338] criminal indulgence has a claim to protection and support, which Courts of equity cannot, and do not, disregard. It may he truly said, Non obtusa adeo gestamus pectora. In the cases of the Marchioness of Annandale v. Harris, (2 P. Wms. 432. 3 Bro. P. C. 445.) of Cray v. RooTie, (Cases temp. Talbot, 153.) and of Cary v. Stafford, (Amb. 520.) settlements by way of voluntary bond, covenant, or deed, as the prcemium pu- dicititB, were established, and a specific performance decreed. I have no doubt that the plate, in the use of the family, is embraced by the words household goods and furniture. (Roper on Legacies, vol. 2. 239. 249 — 255., where the authorities are collected.) I shall, accordingly, decree, that the plaintiff, Hannah Curry, elect, in the presence of a master, such portion of the household goods and furniture (plate included) as shall be deemed sufficient by her, with the approbation of such master, towards furnishing a house n a genteel style, having due regard to her circumstances and condition in life. That the lease alluded to in the said itistrument be deposited with the assistant register ; and that the residue of the furniture and household goods be delivered >yer to the guardian of Mary Bunn Marston, to be pre- served for her use ; and that, until further order, the as- sistant register take charge of the rents and profits of the house and lot mentioned in the said instrument, and apply the same as therein directed Decree accordmgly, 269 339* CASES IN CHANCERY. 1815. MovAN *MovAN and wife against H ^ys. jj ^Ys. [ReTiewed, 1 Sandf . Ch. 38.] The assignees of an insolvent, who had obtained his discharge und^i the insolvent act, must be parties to a bill, brought to enforce the exe- cution of an agreement, or trust, relative to his estate, existing prior Sp his assignment. A re-assignment to the insolvent, by his assignees, of all the residuary interest in his estate, made without the assent of the creditors of thfi insolvent^ interested in the residuum, is void. ,,, Parol evidence is inadmissible to support an agreemetjt set up in coiita- diction to a deed. Where no trust appears on the face of a deed, nflr any manifestation or evidence of it by writing, parol evidence is inad- missible to show the trust. Jan. iGih. THE plaintiffs, by a deed, dated the 5th of January, 1799, conveyed to the defendant, in fee, a house and lot-in New- York, for the consideration of 2,500 dollars, subjecttb two mortgages ; one to T. Gardner, for 600 dollars, and one to John Jones, for 650 dollars : the deed was in the usual form, with full covenants and warranty, except as to the mortgages specified, and was duly acknowledged by the grantors, and recorded the 16th of July, 1801. The defendant, on the 5th of January, 1799, executed a mort- gage of the same premises to the plaintiffs, for securing'ttf; sum of 1,248 dollars arid 50 cents, with interest, in "oiie year, which was in the usual form, with a power of sale', &c. &c. ; was acknowledged the same day, and recorde3 July 13, 1810. ' The plaintiffs, in their bill, alleged that the plaintiff,-jE. Movan, being desirous to raise the sum of 1,200, dollars, it was agreed that he should make 20 promissory notes, each for the sum of 60 dollars ; each payable three months afWr the other, and that the defendant should endorse them; and that, as security to the defendant, he should make the above conveyance in fee, to the defendant, and as a cou/it^t security, take a mortgage from him, which agreement wos ' *340 ] *carried into effect, by executing the deed and mortgage above mentioned, and making and endorsing the not^s. That the defendant immediately took possession of the premises so conveyed to him, and was in receipt 6f the rents and profits, which amounted to 375 dollars per annum. That the first four notes which became due, were paid by the defendant with money furnished to him by the plaintiff, Movan, for that purpose ; and the other sixteen notes were taken up successively by the defendant, and paid out of thfe rents and profits of the house and lot so conveyed to hiift That since the notes have been paid, the defendant refused to deliver up the deed, or to reconvey the premises, or to 270 CA^ES IN CHANCERY. ;i4(J account for tne rents and profits, after deducting the notes 1815. so paid by him, &Ci : and the plaintiffs prayed that the de- »>.^-n/— ».^ fendant might be decreed to deliver up and cancel the Movan deed, or reconvey the premises, and account for the rents iiIVs. and profits, &c. The answer of the defendant denied the agreement stated in the bill, or that any such notes, relative to the premises, or the price of the conveyance, were endorsed by him; and he denied that the deed was executed in pursuance of any such agreement, or delivered in trust, or on any condition, or with any promise to be void, or subject to any right of redemption, but was executed upon a fair and ab- solute purchase, for the consideration expressed, and with- out any condition or trust whatever. That the defendant has paid off and discharged the two mortgages with which the premises were charged ; that he actually paid the whole consideration money of 2,500 dollars ; that, to secure a part of it, at the time, to wit, the sum of 1,248 dollars and 50 cents, he executed the mortgage of the premises, which he had paid off and discharged, though, by mistake, the mort- gage was left in the hands of the plaintiff, and the regis- try was uncancelled. That, in part of the consideration money, he made and delivered to the plaintiff 20 promissory notes for 60 dollars, payable at different times ; but one of *the notes was for a different sum, and they amounted in * 341 ] the whole to 1 ,248 dollars and 50 cents, all of which he had paid with his own money, either to the plaintiff, or to those to whom he had passed them, and most of them to the as- signees of the plaintiff, who had been discharged under the insolvent act. That on receiving the deed, he took posses- sion of the property, and received the rents and profits as his own ; that he kept no account of the annual income, but it did not exceed 300 dollars per annum. The defendant, also, insisted on the benefit of the statute of frauds, against any parol agreement, or trust, set up by the plaintiffs; and, also, that the plaintiff, iMo«n!w, .having issigned all his property under the insolvent act, and obtain- ed his discharge, on the 14th oi August, 1799, that discharge was a bar to this action. It is unnecessary to state any portion of the mass oi parol evidence taken in the cause, it being regarded by the Court as wholly inadmissible. Among the deeds and exhibits, read at the hearing, was a power of attorney to K. Movan, from his assignees, dated the 16th of January, 1804, to recover all the debts and demands due to them as assignees of his estate, &c. ; and a grant and assignment, for the consideration of I dollar, dated 16th of June, 1807, from the same assignees, to the 271 341 , CASES IN CHANCERY. 1815. plaintiff, E. Movan, of all their right, as afssignees, to the residuum of his estate, &c. Movan V. Hats. T. A. Emmet and Anthon, for the plaintiffs Riggs, cpntra. The Chancellok. The objection is well taken that the assignees of Movan are not parties to the bill. The interest claimed by the bill passed to the assignees, and though they afterwards re-assigned to Movan all the remaining interest r*342] of his estate, yet, unless it was done, which does not *ap- pear in this case, with the assent of all the creditors of ' Movan, having an interest in the estate so assigned in trust, it was a manifest breach of trust, and cannot be regarded^as valid. But admitting the bill to have been brought by the as- signees, (and, on this assumed poin,t, to save litigationyniy opinion is requested,) yet, as the agreement set up in the bill is denied by the answer, and is contradictory to the deed from the plaintiffs to the defendants, it cannot be supported by parol proof. The statute of frauds is in direct contra- diction to this attempt to erect and support a trust by parol evidence. The words of the act are, (act of February 26, 1787, s. 12.) that "all declarations or creations of trusts of any lands shall be manifested and proved by some writ- ing, signed by the party enabled by law to declare such trust, or else they shall be utterly void." No doubt the dis- tinction is a just one between an agreement and a trust under the statute of frauds, and that a trust need not, like an agreement, be constituted or created by writing. It is sufficient to show, by written evidence under the party's hand, the existence of the trust. It is sufficient that the trust be manifested and proved by writing, as by a letter ac- knowledging the trust. (3 Ves. jun. 707. 12 Ves. 74.) But the. difficulty is, that here is no manifestation, in writing, of any such trust as is charged in the bill. The writings ihow nothing but a plain absolute deed, in fee, from the plaintiffs to the defendant, for the consideration of 2,500 dollars, and with covenants of warranty ; and a plain mort- gage, in the ordinary form, from the defendant and his wife to the plaintiffs, with the usual power to sell, and made to secure the payment of a bond for 1 ,248 dollars and 50 cents, •oayable in one year thereafter. The deed and mortgage both bear date the 5th of January, 1799 ; and though the deed was recorded in July, 1801, the mortgage was not regis- tered until July, 1810. To permit such a clear, intelli- gible, and ordinary transaction, to be changed, by parol proof 272 CASES IN CHANCER V^. • *343 nto the *special trust and agreement set up by the plaintiffs, 1815. (and which is the ground of the bill,) would be, in effect, to ■..^,^~^-~^^ repeal that part of the statute of frauds to which I have re- Wfndell ferred. The rule is well established in this Court, as well vah Rehss» as at law, that parol evidence is inadmissible to disannul or laek. substantially vary a written agreement, except upon the ground oi mistake or fraud. The cases of Irnkam v. Child, (1 Bro. 9^i.) and of Hare v. Shearwood, (1 Ves. jun. 241. 3 Bro. 168.) are not unlike to this ; those were cases of an attempt to support, by parol evidence, an agreement to re- deem, as having accompanied the grant of an annuity ; and the attempt was overruled as being in contradiction to the deed. The case of Hutchins v. Lee, (1 Atk. 447.) on which some reliance seemed to be placed, is not in opposition to this doctrine ; for there, as Lord Hardwicke observed, all the appearances of an intended trust were upon the face of the deed, and there were declarations and recitals in the deed, consistent with the trust set up, and evidence, or a manifes- tation of it, and therefore the parol evidence was consistent with the deed, and proper to avoid the fraud which was in- tended. I should doubt extremely of the sufficiency of the parol proof, if it were admissible ; but, without deciding upon its force, I hold it to be utterly inadmissible, as being contrary to the statute of frauds ; and the bill must, consequently, be dismissed, with costs. Decree accordingly. ^Executors and heirs of Wendell against Killian [ * ,'{44 ] Van Rensselaer. CDistingnished, 88 N. T. 823, 338. Reviewed. 12 Otto (U. S.) 76. See 6 Johns. Ch. 168, 228.] A deed by a client to his attorney and scrivener, for the consideration of affection and friendship, 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 confidence on the one side, and undue influence on the other, there being no evidence of imbecility or inca- pacity in the grantor, nor of fraud or imposition by the grantee ; nor of that relationship between the parties, which might imply the exist- ence of an undue influence. Where a person, having a conveyance of land, keeps it secret for several years, and knowingly suffers third persons, afterwards, to purchase parts of the same premises from the grantor, who remained in posses- sion, and was the reputed owner, and to expend money on the land, without giving any notice of his claim, he will not be permitted, after- wards, to assert his legal title against such innocent and honajuk pur chasers.* Vol. I. 35 273 344 CASES IN CHANCERY. 1815. Wendell V. Vah Kensse- LAER. Sept. 6, 1814, and Jan. 16, 1815. 1*345] 1 THE bill in this cause stated, that Philip Wendell, on the 8th of December, 1808, died seised of real estate, &c. in the city of Albany, part of which consisted of a lot of ground in Court street ; 10 acres of land, called WendeWs pasture, and lots No. 3. and No. 2., on the east side of Bea- ver street. By his last will, he authorized his executors to receive the rents and profits of his real estate, to lease the same, and, out of the rents and profits, to support his chil- dren, &c. That the defendant pretends to have some claim to the above-mentioned property. That the testator, with the knowledge of the defendant, and after the existence of his pretended claim, conveyed one of the lots on Beaver street to C. R. &f G. Webster, with covenants and warranty, &c. ; and they, with the knowledge of the defendant, made valuable improvements thereon ; and that the defendant had brought an action of ejectment for the lot in Court street. The bill prayed for a discovery of -the defendant's title and claim to the premises, &c. ; and that the title of the plain- tiffs *may be quieted in all the estate of which the testator died seised, &c. and for an injunction, &c. The defendant, in his answer, admitted that the testator died possessed of considerable real estate, &c., and made his will, &c., as stated in the bill : that the testator, long before his death, was in the actual and notorious possession of the lot in Court street, and the lots in Beaver street, and of somt parts of the pasture : that the part of the pasture cleared by the defendant is vacant, except some ice houses thereon. That the testator, in 1807 or 1808, conveyed the whole or a part of the pasture to Stewart Lewis, but without the knowledge of the defendant, as he was ignorant thereof until after the testator's death ; and he denied that the testator had any but a life estate in the premises. That the testator, on the 9th of July, 1792, contracted and agreed, with the defendant, " for the natural love and affection towards his friend," the defendant, " and for the further consideration thereinafter mentioned," to convey to the defendant, his heirs and assigns, forever, in fee, the one half of the pasture, &.c. ; lots No. 2. and 3., in Nail alley, subject to a lease to Elisl.a Crane, and the lot in Court street, &e. ; Provided, the defendant, or his heirs or assigns, pay to the testator, or ■ his heirs, 940Z. within two years ; and it was agreed by the parties, that if the testator conveyed the premises to the defendant, the testator was to have the use and income thereof during his natural life. This con- tract was proved by the subscribing witness, before a mas- ter, the 28th of March, 1809. The defendant also en- dorsed on the instrument, that on the 17th of March, 17f)4, the testator had executed a release to him of tHe lot in '274 CASES IN CHANCERY. 344. Court street; and that on the 6th of August, JT94, the 1815. testator had executed a deed to him, for the residue of the ^^.^^^'-'^^^ property mentioned in the contract. The defendant stated, Wendell that W. Yates, the subscribing witness, was a clerk in his y^^^ rensse. office ; and he set forth the deed of the 17th of March, 1794, laer. at large, which contained the following recital: "Whereas *I have made an agreement with my friend, K. K. Van [ * 346 ' Rensselaer, respectmg a lot of ground sitiiate in Court street, &c., in consideration of 1,500 dollars, paid to me; and whereas I am to be permitted to take, during my life, the rents of the said lot, in case I should build a house or houses on the same, and to let it as I think proper ; and whereas I am to receive at the rate of twenty pounds a year, during my life, from the said Killian, ' his heirs or assigns ; and having no children, and possessing a large estate, sufficient to provide for my brothers' and sisters' children, with a desire to comply with the request of my friend and relation, I am inclined to convey as follows." The remainder of the deefl was in the ordinary form, for the consideration of 1,500 dollars, with covenants against encumbrances and warranty. This deed, in the handwriting of the defendant, was executed in his office, in presence of a, clerk, and two witnesses re- > siding in Washington county, then present, but since dead. That the defendant gave the testator a note for the 1,500 dollars, payable in six months, which he afterwards paid. That, before giving this note, he had lent the testator money, for which he held his notes, and when the defendant's account was settled, the testator's notes were set off" against it, and the balance paid in cash, and a receipt in full was endorsed on the note of the defendant. That,' in further performance of his contract, the testator gave the defendant another deed, dated August 6th, 1794, for lots No. 2. and No. 3., in Beaver street, and the pasture, or hay land, which are described by metes and bounds; but the quantity of acres was not mentioned. This deed, which was set out at length, was absolute in its terms, with a covenant of warranty, and purported to be for the consideration of 340/. .■ it was in the handwriting of the defendant, and executed in his office, in presence of his clerk, and a neighbor, and was proved by the clerk, before a master, the 21st of April, 1809. That the defendant gave a note to the testator for the 340?., payable *in two months, which he paid when it became due, and took [ * 347 ] the receipt of the testator endorsed thereon. That in the winter of 1794, a difficulty arose between the parties respecting the bounds of the land in Wendell'^ pas tare, and the two lots in Nail alley, (Beaver street,) as there was no survey or map of the premises ; and on the 17th of March, 1794, the testator proposed to convey tie lot in 275 347 CASES IN CHANCERY. 1815. Wendell Van Rensse- laer. [ » 348 ] Court street immediately, and extend the time of payment, under the contract, for 6 months ; and to have the pasture surveyed, and give a deed for it, if the defendant would pay him interest on the 940Z., for two years ; and the defendant agreed, instead of the interest on the 940/., to give the tes- tator an annuity of 20Z. for life, and which was accordingly secured by the recital in the first deed. That the descrip- tion of the property, in the deed of the 6th of August, 1794. was taken from that given by the testator. That the con- tract and conveyance were all obtained in good faith, and for a valuable consideration, actually paid, and after the tes- tator (who was a bachelor) had offered to convey to the defendant his whole estate, for an annuity, which the defend- ant had declined. The defendant denied all fraud, or impo- sition, or ill practices, in obtaining the deeds. He admitted that the sale to C. R. fy G. Webster, of the lot in Beaver Street, and the improvements thereon, were known to him , but, from a conversation with G. W., he supposed it was a different lot, or No. 1. That he paid the testator the annuity of 20/., until March, 1799, and produced the receipts, which specified 20Z. for rent. That he refused to pay it, after wards, until the testator should have the pasture land, and the lot in Nail alley, surveyed and laid out. A great number of witnesses were examined on both sides, whose depositions, with the exhibits, were read at the hear :ng. Among the exhibits was a lease from the testator to John Ogle, dated the 1st of May, 1793, for 16 years, for lot No. 3. (one of the lots mentioned in the contract of the 9th of July, 1792, and in the deed of the 6th of Augmti *1794,) which was a printed blank, filled up in the hand- writing of the defendant, and its execution witnessed by the defendant and his clerk. Also, a lease from the testator to Ogle, for 19 years, of lot No. 4., executed at the same time, and filled up and witnessed in the same manner. There were several other leases for lots No. 7. and 9. filled up, and witnessed in the same manner, by the defendant. It was stated by several witnesses, that, after the deeds to the defendant, the testator leased and disposed of parts of the property, and that the writings were drawn by the defendant as his lawyer. That at the date of the contract, and of the deeds, the defendant was the confidential friend of the testator, and transacted business for him, as his lawyer and conveyancer. That the testator was ignorant of the forms of business, close in his dealings, and of a suspicious temper, except towards those in whom he confided, and in whom he placed implicit and unbounded confidence; and that the premises conveyed to the defendant were worth three times the amount of the consideration in the deeds. 276 CASES IN CHANCERY. « 1? It appeared, also, that after the contract with the defend- 7.3 15. ant, and conveyances to him, the testator made a contract •-.^^^-.^^•'■^^ for the sale of part of his grounds, called Wendell's pasture, Wendeli. with one Tollman, part of which ground was comprised in y^^ r^nsss the deed to the defendant ; and that he, afterwards, sold and laer. conveyed the same property, or a part thereof, to Stewart Lewis ; that a dispute about the properly arose between the testator, Tallman, and Lewis, which was public and well inown to the defendant ; and the controversy was, after- wards, with the knowledge of the defendant, settled by ref- erees ; so that Tallman became entitled to part of the land sold by the testator to Lewis ; and as an equivalent there- for, the testator conveyed part of the pasture, now claimed by the defendant, to Lewis, who has built upon the ground, and made improvements thereon, under the eyes of the de- fendant, who gave no notice of any claim, nor made any objection to what had been done. *Harison and Riggs, for thu plaintiffs, [ * 349 ] Henry, for the defendant. The cause was brought on to a hearing, when Henry, for ^«p«- G'h, I814. the defendant, objected, preliminarily, to proceeding in the 7^^ general cause, for want of proper parties. The bill was filed for dis- ali^ersonrilH covery of the defendant's claim to lands owned by the testator '^fested lo be in his lifetime, and of which he had conveyed part by deed, tile sui^^isTon" with covenants of warranty, to Charles R. and G. Webster, fined 10 panics and to R. Gill and D. S. Lewis, and had died seised of involved in ihe the remainder ; and the bill prayed to be quieted in their '^^"^' ™'* '*''." right as representatives. The objection was, that the above iyrbe""ffccied purchasers were not parties, and that the rule was, that all ''^ '¥ decree. ^ persons having a right or interest concerned, or who may convenience"' be affected by the decree, ought to be made parties, so that '^'^^^v j"'' one decree may finally settle all the rights and interests pe^^ed ^ wii'h'. involved in the controversy, and prevent further litigation, whenitbecoinps cult or incoQ Riglfs and Harison, contra. These purchasers have no ™"'«°'- interest in some of the lands covered by the defendant's deeds, and claimed by the plaintiffs ; and they have no in- terest in the estate whereof Philip Wendell died seised, and which alone is the subject of t'le bill. The Chancellor. The only interest involved in this suit, is that belonging to the representatives of Philip Wen- dell, deceased. Persons who purchased of Wendell in his lifetime are not concerned in this suit. They may have an interest in the point or question litigated, viz. whether the 277 Van Rbnsse LAER. 349 CASES IN CHANCERY. 1815. needs of the defendant, covering their lands as well ng the v^,^-^^-^ lands of the' plaintiffs, be valid ; but that circumstance alone Wendell will not render them necessary parties. If all persons interested in lands covered by the defendant's deeds (and which deeds the plaintiffs controvert) were to be made par- ties, it would be very inconvenient. They may be numerous, [*350 ] *as the lands lie in a populous part of the city of Albany)- and on that principle a suit involving a question on the validity of some of our largest patents would require all the inhabitants on them to be made parties. The general rule, requiring all persons interested to be parties, ought to be restricted to cases of parties to the interest involved in the issue, and necessarily to be affected by the decree. It is, besides, a rule adopted for convenience merely, and is dis- pensed with when it becomes extremely difficult or incon- venient. (Adair v. The New River Company, 1 1 Ves. 429.) The interest now in contest is that whereof Wendell i.s alleged to have died seised ; and all persons concerned in that interest are plaintiffs, and that is sufficient. If relief is to be granted, it will, of course, be so modified as not to affect the interest of others. The objection is overruled. The cause was then argued, on the merits, at great length ; but the points and authorities are so fully discussed in the judgment pronounced by the Court, that it >s thought unnecessary to state the arguments of counsel. in. 16, 1816. The cause stood over for decision until this day, when the follovving opinion was delivered by the Court. A deed from The CHANCELLOR. The deeds Set up by the defendant li^mev '" and ^ere taken and kept under such circumstances as very counsel yviii not naturally to have excited great distrust in the testator's heirs ; ofe "ground^ of and it must be confessed that they have been viewed with any implied ex- jealousy by the Court. I cannot, however, perceive any infloence ""lior Sufficient ground, or select any solid principle, upon which unless fraud or I can Set them absolutely aside, as unduly or fraudulently Kn."™ ^^ obtained. The parties, at the time, did not stand in such relation to each other, as necessarily to render the deeds invalid, on principles of utility or policy, flowing from such relation. The defendant occasionally did small business, as a scrivener, for the testator ; but these deeds were not pro- cured or given by way of remuneration or bounty, fot [ * 351 J antecedent kindness ; *they were purchases made, or pur- porting and shown to have been made, for a valuable, if not a full consideration. There was no connection, at the time, between the parties, that would justly imply the existence ol undue influence, or the fraus innexa clienti ; and the cases to which I have been referred, (2 Ves. ,281. 2 Schoale ^ 2T8 CASES IN CHANCERY 35 Lefroy, 492. 2 F'>. jun. 199. 9 Vcs. jnn. 292, 12 Ves. 1815. j««. 371. 13 Ves. jun. 136. 14 Fes. jun. 91. 273.) of x..-.i-N,.-i^ undue influence arising from particular relations between Wendell parties, do not seem to apply. Nor have I been able to y^j, ressse discover any fraud or imposition practised upon the testator. laer. The evidence will not warrant the conclusion that the tes- tator was too ignorant, or too weak in understanding, to make valid contracts. All the proof in the case shows that he was ia the constant habit of dealing, in regard to his property, with the public at large, with ordinary discretion and sagacity. Though the testator may have placed a very strong, and even blind confidence in the defendant, it does not appear that such confidence was excited by any undue arts, or by any relationship between the parties, which will authorize this Court to interfere. The bargain seems to have been incautious and injudicious on the part of the testator, if we consider it as a mere pecuniary transaction between strangers dealing at arms length ; but it is not to be helped for that cause. The case is not of that gross and extrava- gant kind, like those of Hugunin v. Baseley, and of Purcell V. MNamara, (14 Ves. 91. 273.) in which the impresfeionof folly and ignorance on one side, and of undue and over- bearing influence on the other, was irresistible. It is, howev- er, a case of so peculiar an aspect, that if I had been able to discover the least scintilla of fraud or imposition on the part of the defendant, in procuring the deeds, I should readily have interposed and annulled the transaction ; but I see no such imposition ; and as between the parties themselves, I conclude that the deeds must be permitted to stand. *The defendant was to pay the testator an annuity of 20?. [ * 3 52 for life ; and this annuity has been suspended since March, 1799, by a refusal, on the part of the defendant, to pay. The deed of the Court street lot, given in March, 1794, recites such an agreement, and the possession of that lot ought not to be taken from the representatives of the testa- tor, until the arrears of that annuity, up to the testator's death, are discharged. I shall, accordingly, retain the injunction, until the amount of those arrears be ascertained by a master, and paid to the executors of Wendell, or are brought into Court. With respect to the lands contained in the deed of Au- gust, 1794, it appears that most of them were conveyed by the testator to third persons, for valuable considerations, and by deeds of warranty, subsequent to tlie date of the deed to the defendant ; and it becomes a very important question, whether, under the circumstances of this case, the Court can permit that deed to operate, except upon lands of which the testator died in possession,- and which he had not 279 .«2 CASES IN CHANCERY. 1815. conveyed since the deed of 1794. Perhaps I cannot takt ■^^^.f^s^",,^^ any effectual step, under the present bill, to silence or extim Wendell guish the claim of the defendant to the lands conveyed by VinRensse- the testator, though covered by the deed of August, 1794; LAER. but as the merits of the question are so fully before me, it may be convenient to the defendant that I should express an opinion on the point. The deed of the 6th of August, 1794, has no recital, and is a plain deed, in fee, of all the testator's interest, present and future, although, by the contratjt of the 9th of July, 1792, (and of which this deed was; as the defendant admits, in part performance,) the testator was to retain a life estate in the premises. The deed is inconsistent with that reservation, and does not truly express the intent and meaning of the parties ; for all the evidence shows, that the original agree- ment was never varied on this point, and we find that a life estate was actually enjoyed by the testator. When a deed, as the lord chancellor said, in Walt v. Grove, (2 Schoale [ * 353 ] *<^ J^flfroy, 492.) is shown to be false in a material point, it A (Iced, false in cannot have the credit due to unimpeached testimony. It "o^oiCTUifedto ™"^t '^e reformed, and be set aside, in whole or in part, and full credit. on such terms as justice may require. In this case, however, as the grantor, notwithstanding the absolute nature of the deed, continued to enjoy the land unmolested down to the time of his death, there was no bad faith as between the parties to the deed ; and the false language of it is a material circum- stance only when we come to consider the fairness of the transaction as respects the world, and the weight due to the deed upon purchases made by third persons from the grantor, since its execution. It was not only a deed untrue on its face, but it was carefully concealed from the knowledge of the world ; and throughout all the transactions between the parties, there was an intentional secrecy as to the contract of 1792, and the deeds of 1794. By this means, false colors were held out to the world, and the public were permitted to consider the property as belonging to the testator, and to treat with him as the absolute owner. The various pur- chases from the testator, made by Stewart Lewis, by the Web- sters, by the Gills, by Turner, and by Tallman, conclusively establish this fact. The defendant, in his answer, admits it to be probable, that an opinion very generally prevailed, and was entertained by the inhabitants of Albany, that ti)e testator continued owner of the land, between the date of the deed and his death. The purchases made from him, from lime to time, of parts of the premises, were matter of public notoriety ; the various and great improvements going oh under those purchases were in full view from the very resi dence of the defendant ; and his knowledge of these pnr 280 CASES IN CHANCERY. 353 chases is, in some instances, admitted or proved; yet, from 1815. 1794 to 1808, he preserved a studied silence, arid gave no s_^-n^-^_' notice to those purchasers, or to the world, of his title. After Wekdeli. this, he cannot be permitted to start up with a secret deed, y^^ Rensse (in itself of such doubtful credit,) and take the land laek. from bona fide purchasers under the testator. Having, *ror such a length of time, suffered the public to deal with [ * 354 the testator as the real owner, he cannot now be permitted to question, or disturb, any title which has thus been pro- cured by his tacit assent. There is no principle better established in this Court, nor one founded on more solid considerations of equity and public utility, than that whicn declares, that if one man, knowingly, though he does it pas- sively, by looking on, suffers another to purchase and expend A person look money on land, under an erroneous opinion of title, without j-"? ™ *^other making known his claim, he shall not afterwards be permit- to purchase and ted to exercise his legal right against such person. It would ^^\^i S"om be an act of fraud and injustice, and his conscience is bound disclosing, or by this equitable estopel. Qui tacet, consentire videtur. yf c'lafm ^ihe Qui potest et debet vetare, jubet. (The East-India Com- land, will not be ■pany v. Vincent, 2 Atk. 83. Banning v. Ferrers, 1 Eq. Pardl'lo'^en Cas. Abr. 356. pi. 10. Gilbert's Eg. Cas. 83. Raio v. ins legal luL Potts, Free, in Ch. 35. Hunsden v. Cheyney, 2 Vern. 150. ^["f p^tha' and the case of Dr. Amyas, there cited. Styles v. Cowper, ser. 3 Atk. 692. Jackson v. Cator, 5 Ves. 688. Dann v. Spur- rier, 7 Ves. 231.) . Though the right of the party, whx) thUa misleads, third persons by his silence, be merely a reversion- ary interest, subject to a life estate in the person whom he suffers to act with the property as owner, yet, as appears from several of the cases, the application of the principle is the same. The following decree was entered : " That the deed of conveyance in the pleadings and proofs mentioned, from Philip Wendell, deceased, to the defendant, bearing date the 6th day of August, 1794, for two certain lots of ground therein described as Nos. 2. and 3., situate in the first ward of the city of Albany, fronting the new street called Wendell street ; and for a piece of pasture, or hay land, therein also described, as situate in the first ward of the city of Albany, has become, and is, void and inoperative in law, as far as the same deed comprehends, or relates to, lands and premises therein mentioned and described, *or thereby intended to be conveyed, and which the said [ * 355 ' Philip Wendell, deceased, in his lifetime, after the day of the date of the said deed, conveyed to any other person or persons, bona fide, for valuable consideration. And it sat- isfactorily appearing to this Court, from the pleadings and Vol. I. 36 281 355 CASES IN CHANCERY. 1815. proofs in the cause, that Philij) Wendell, deceased,. in his.. ..^f'S/—^^ lifetime, and after the 6th of August, 1794^ conveyea, as Wendell aforesaid, in fee simple, to third persons, all the lands and ■r J' premises in the aforesaid deed mentioned and described, and Van KF.NSSE* S' 1 • 1 1 • 1 xr ' ' T./ER. thereby mtended to be conveyed, exceptmg lot No. 2., fronting on the street called Wendell street : Whereupon, it is further ordered, adjudged and decreed, that the defendant,,^ Killian K. Van Rensselaer, shall execute and deliver to the plaintiffs in this cause, a release, sufficient, in the law, to release, exonerate, and discharge the plaintiffs, as the real, and personal representatives of Philip . Wendell, deceased",, from the covenant of warranty, in the deed of conveyance contained ; and from all covenants, expressed or implied; in the said deed of conveyance, which would, or might, render the plaintiffs, any, or either of them, as real or personal representatives of Philip Wendell, deceased, liable to the defendant, his heirs, executors, administrators, or assigns, for the title of the lands and premises in the deed mentioned: and described, or thereby intended to be conveyed, except a« to lot Jio. 2., and from all damages in consequence of a fauure \A such title ; and that the form of such release be settled by it master in chancery, in case the parties disagree respecting the same. And it is further declared, adjudged' and decreed, that the deed of conveyance, from Philip, Wendell, deceased, to the defendant, of the 6th of August^ 1794,' and the cbvenants therein contained, as far as regards lot No. 2., remains in full force, as it respects the plaintiffs in this suit, any, or either of them. And it is further ordered, adjudged and decreed, that the other deed of conveyance, in the pleadings and proofs mentioned, from [ * 356 ] Philip Wendell, deceased, to the defendant, *bearing date the 17th of March, 1794, for a certain lot of ground therein described, as situate adjoining Court street, in the first ward of the city of Albany, is unimpeached, and remains effectual according to the tenor thereof, and is hereby declared to be established against the plaintiffs ; and to the benefits whereof the defendant shall be entitled, to take effect as hereafter mentioned, and hereafter to be provided for and decreed. And it is further ordered, adjudged and decreed, that the plaintiffs are entitled to, and do recover and receive from the defendant, the annuity or yearly sum of 50 dollars, which, it appears from the pleadings and proofs in the cause, the defendant agreed to pay to Philip Wendell, during his life, and which yearly sum 'the defendant paid to Philip Wendell, up to the 17th of March, 1799, and no longer. And for the purpose of ascertaining what is due to the pla/itiffs for the arrears of the annuity, or yearly sum, it ia further ordered, adjudged and decreedj that it be referred 282 CASES IN CHANCERY. 35fl to a master in chancery, to take and state an accoirU thereof, 1815. from the llth of March, 1799, until the 8th of December, v^-^,-^, 1 808, when Philip Wendell died ; and that the master, in Ten Br'oeck taking and stating the account, compute and allow interest 1.^y^^^srov on each of the yearly sums, from the time the same ought to have been paid until the report ;^ and that the master, also, take an account of the rents and profits of the lot of ground and premises, situate adjoining (Jourt street, in the first ward of the city of Albany, which have been received by the plaintiffs, Barent Bleeclcer and Sanders Lansing, as executors of the last will and testament of Philip Wendell, deceased, from the decease of PAi'/ip Wendell; and in taking such account, the master shall make all just allowances for improvements, permanently useful, made upon the last men- tioned lot of ground, by Philip Wendell, in his lifetime, after the 17th of March, 1794, and which now remain ; and that he, also, make all just allowances for improvements perma- nently useful, repairs and taxes, or other necessary and proper expenditures by the plaintiffs upon, or on account of, the lot *of ground and premises, since the decease of Philip [ * 357 \ Wendell; and that the master report thereon with convenient S'peed. And it is further ordered, that the injunction issued in this cause be continued until the master's report shall come in, and till further order; and that the question of costs, and all further directions, be reserved for the further consideration of the Court." Ten Broeck against W. T. Livingston. [Applied, 6 Paige, 414.] Where a deed, in fee, contained a reservation of the right of " cutting and hewing timber, and grazing 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, especially where it appeared that the premises had been enclosed for above 30 years, and the right, during that period, had not been claimed or exercised. Such rights may be lost by long negligence and disuse ; and presump- tions of their release, or discharge, are favored for the sake of quieting possessions. •Where A. contracted to convey to B., " by a good and valid conveyance in law," a farm, which was originally parcel of a large tract of land granted by the proprietor of a manor, to the ancestor of A., in fee, "yielding and paying to the grantor, his heirs and assigns, the yearly rent of ten shillings?" the proportion of which quit rent on the farm was 54 cents a year ; the existence of the quit rent being known to B. at the time of the contract, it was h dd that the existitig of such an 283 357 CASES IN CHANCERY. 1 Q I - encumbrance, if it was any, was no objection to a decree of Bjieciil^ perfornnance of the contract. ""'''"^''"^■^ Whether such a quit rent, not having been demanded or paid for above Ten Bkokck qq years, will not be presumed to be become extinguished by lapse LiviNosTOK. of time? Qwajre. Janum-y 23d. THIS was a bill for a specific performance of an agree- ment, under seal, made between the parties, on the 22d of December, 1812, by which they agreed to exchange : the farms specified in the agreement, and to execute to each bther "good and valid conveyances in the law of the same," with covenants of seisin and warranty : and they agreed further to refer it to /. R. V. R. and /. C. H., to arbitrate and f * 358 1 *assess the relative value of the farms, and what sum, if any, the defendant should pay to the plaintiff, to render the exchange equal ; and that mutual possession of the respective farms should be delivered on the 1st of April, 1813. The arbitrators made an award, on the 8th of January, 1813, that the defendant should, within four years from the 1st of April, 1813, pay to the plaintiff 10,750 dollars, with interest annually, from that time, and give good security for the payment. The bill further stated, that the plaintiff ' caused his farm to be surveyed ; that the defendant, wishing to get rid of the bargain, offered the plaintiff one hundred dollars to relinquish it which he refused. That before the 1st of ■April, 1813, the defendant brought on the plaintiff's farni rails and boards ; and the plaintiff also expended money on the defendant's farm, in confidence that, the agreement would be fulfilled. Both parties requested an attorney to prepare the deeds ; and the plaintiff executed his deed, and tendered it to the defendant on the 13th of March, 1813; but the defendant refused to perform the agreement, or abide by' the award of the arbitrators ; and the plaintiff again, on the 1st of April, 1813, tendered his deed to the defendant, who refused to accept it. The answer of the defendant admitted the agreement and award, as stated in the bill ; but alleged, that, after the publication of the award, he discovered that Robert Liv- ingston, who owned the plaintiff's farm on the 20th of October, 1694 conveyed to DircTc Wessell, (a) (ancestor of the plaintiff,) for the consideration of 151., a tract of land, including the plaintiff's farm, in fee, the grantee "yielding and paying to the grantor, his heirs and assigns, the yearly rent of 10 ■Jiillings," and with a reservation to the grantor, his heirs ana assigns, forever, of the right of " cutting am hewing timber, and grazing in the premises, that is to say, in (a) This is one instance, among many, of the singular changes w^'''h iia»« taken place iti the names of the Dutch families in tAis state. 284 CASES IN CHANCERY. - *359 thb woods * not appropriated or fenced in." And the defendant 1815. therefore charged, that the plaintiff's farm was subject to ^^rf»-^,'-^ the above rents and reservations ; and that those encum- Ten Broeck brances were unknown to the arbitrators when they made l,visgsio5. their award ; and that all the declarations and acts of the defendant, towards ratifying the contract and award, were iDade and done before he discovered the above encumbrances on the plaintiff's farm. The master to whom it had been referred to report on the titles of the parties, &c., reported the evidence taken before him. It was proved that the farm of the plaintiff had been enclosed or fenced in for above 31 years ; that a small spot of 3 or 4 acres, called the Ogden spot, formerly not fenced in, had been, for several years, improved, and was now fenced in, and in the occupation of the plaintiff. That it was notorious that all the lands in the manor of Livingston are held subject to quit rents ; and that the defendant had frequently said, before the agreement, that he knew of the existence of the quit rent, which was a trifling sum. That the plaintiff had never been called on for any quit rent. That there were 250 acres of woodland on the farm, not cleared, and the right to cut wood had never been exercised. The report also stated, that the quit rent on the farm amounted only to 54 cents a year ; and that, from the manor books, it did not appear that any quit rents had ever been exacted or paid. Henry, for the plaintiff, contended, that the reservation, as to cutting timber, &c., in the title deed of the plaintiff, applied only to lands not fenced in ; and as the whole farm had been enclosed for more than 30 years, there was an end to the reservation. Besides, it was proved that the right had never been exercised during a period of more than 100 years, which had elapsed from the time of making the grant; and it must, therefore, be presumed to have been *extinguished by release. (1 Fonbl Equ. 319. b. 1. ch. 4. f* 3S0 s. 27.,n. 2. \Vern.Z2. '2 Atk. 61 . 632. 3 P. Wms.266. 2 Ves.jun. 583.) The quit rent reserved was apportionable, and the report of the master makes it no more than 54 cents a year. It tests in covenant merely ; and the maxim, de minimis non curat lex, is fairly applicable. Besides, as it has never been demanded, the presumption is that it has been extinguished. {Francis's Maxims, 40. pi. 9. 2 Vent. 351, 352.) E. Williams, contra, contended, that as the plaintiff could not convey a clear and perfect title to all his farm, the defendant was not bound to accept the deed, or to 285 360 CASES IN CHANCERY. 1815. perform the contract on his part. The tender of a good ^_^-,^^-,»^ deed is not enough ; there must be a good title to the whole Ten Bkoecjc of the premises. (2 Johns. Rep. 612.) The plaintiff could l-jviNGSTos. not, in this case, recover damages at law for the non-pertb'm- ance of the contract by the defendant. {Jones v. Gardner, 10 Johns. Rep. 266.) A Court of equity will not, therefore, decree a specific performance. (1 Fonbl. h. 1. ch. 3. s. I.) But is there ground for the presumption, that the rents and reversion have been released ? There can be no adverse possession, in this case, to afford the legal presumption. The plaintiff shows the source of his title, and spreads out before the Court his whole title. The law will not presume a grant or release in such a case. (Hull v. Horner, Cowp, 102.) Mere length of time is riot sufficient ground to create a bar to quit rents, unaccompanied by other circum- stances. A presumption from length of time to support a right, is different from a presumption to defeat a right, as in this case. In Eldridge v. Knott, (Cowp. 214.) where the quit rent was only 2«. and 6d., the Court would not presume a release or extinguishment, from the lapse of time, short of 50 years, the period fixed by the statute of limita- tions. It appeared from the manor books, that rent was paid to 1768, and charged down to 1790. * 361 ] *Henry, in reply, said, that the quit rents reserved in these and similar cases, were intended merely as recognitions of memorial seigniory, not as any beneficial rent. So all tKb colonial grants before the American revolution, from the crown or government, contained reservations of quit rents, as badges of tenure, or acknowledgments of sovereignty; and not with a view on the part of the government to derive any pecuniary benefit from the reservation ; and there was no instance where such quit rents had been demanded by the crown from the colonial patentees. The question, in this Court, is. Can the party make a good and operative title ? The reservation to cut wood and graze applied only to the woods lying in common, and ceased as soon as they were appropriated and enclosed. A pre- scription will run between tenants in common ; and equally gfj between landlord and tenant. There is no evidence of any payment of rent in 40 years, but merely of a charge in the manor books. No suit at law would lie to recover this rent. At aiiy rate, it is a case for compensation, and affords no ground'to refuse a decree for a specific performance. ,'f The Chancellor. The master reports, that the par- ties, respectively, can make a good title to- each other foi 286 CASES IN CHANCERY. 361 ihe premises mentioned in the submission and award. But ]315. the defendant objects to" the goodness of the plaintiff's title, ...^-v-^—' on two grounds: 1. That the lands are charged with an I'en Beoecb encumbrance reserved in the deed of the 26th of October, i^^y^Jarros 1694, from Robert Livingston to Dirck Wtssells, the ances- tor of the plaintiff. By this deed, which was for a tract of land of which the premises were only a part, the grantor re- served to himself, and his heirs and assigns, the right of cutting timber, and of grazing in the woods " not a'ppropriated or fenced in." 2. That the deed contained, also, a reserva- tion to the grantor, and his heirs and assigns, of the yearly rent of ! Os. *1. With respect to the first objection, it appears to me [*363 to be the true construction of the grant, that the reservation ceased and became extinguished, as to the lands belonging to the plaintiff, when those lands were enclosed by fence, arid reduced from the state of common lands to that of spe- cific and exclusive appropriation. It was proved before the master, that excepting the small Ogden spot, which was more recently enclosed, all the plaintiff's farm had been un- der fence for above 30 years, and that the exercise of the rright reserved by the deed had not been claimed or asserted within that period of time. It cannot be supposed to have been the intention of the reservation, that the lands should always continue subject to that servitude, however appro- priated by the owner ; for this would be giving to the grantor a right repugnant to the nature of the grant itself, and to the absolute and beneficial ownership which an estate in fee was intended to convey. By construing the words accord- ing to their obvious and natural sense, we give to the reser- vation a reasonable operation, and one consistent with the interest of the grantee. It was no more than a right of com- mon, and that right is utterly inconsistent with the exercise of the right of enclosure. The plaintiff either had no right to appropriate and fence in the woods, or the right of cut- ting and grazing ceased as soon as the woods were actually and bona fide enclosed. The long disuse of this right, if ever it was used, is evidence of the sense of the parties that the right ceased when the woods were fenced in ; and a ''right of this kind, as well as other rights, may be lost by long negligence and disuse. This was so said in Gateward's case, (3 Leon. 202.) It will let in the presumption of a release, or other discharge, and such presumptions are to be favor- c.ably received in opposition to dormant claims, because they conduce to the quiet of titles, and the security of estates ; and this argument would be entitled to weight, if the construc- tion which I have giv( n to the grant was insufficient or doubtful. 287 LlVINGSTOS. .%3* CASES IN CHANCERY. 1815. *^' '^^^ other objection founded on the quJt rent, cannot v^„r--.,^— ,,_^ be admitted to beset up in this case. 'The covenant that each Ten Broeck party was to make a " good and valid conveyance in the law," will be satisfied if the party can make a good title, suh ject to that portion of the nominal quit rent pf 10*., which might fall upon the premises of the plaintiff. It appears that this reservation of rent was well known to the defendant when he made the contract ; it was a matter, also, of public notoriety, that all the lands in the manor were subject to such a quit rent. It was never, then, within the contempla- tion of these parties, that this rent was to form an obsta- cle to title. The quit rents due to government, under all colonial grants, might as well be set up as an ob- jection to the performance of any covenant to convey. , This rent was declared to be in lieu of all other rents, and was evidently, as the counsel observed, nothing more than the recognition of the manorial seigniory, and which, at that early day, was deemed a matter of some importance. On a due apportionment of that rent,- if it was now to be col- lected, the burthen, or part, falling on the farm of the plain- tiff, would be but fifty-four cents a year. As I do not con sider this rent as forming any obstacle to the mutual good title intended by the contract of the parties, it becomes un- necessary to agitate the question, whether the rent itself has not become extinguished by lapse of time, owing to the presumption arising from the want of evidence of its having been demanded, or paid for, the last 60, if not 100, years. ■ ' I shall, apcordingly, decree a specific performance of the agreement of the parties, mutually to convey. The only remaining point is, whether the defendant is to be charged with interest on the 10,750 dollars, from the first of .4?""*^' 1813. If he is to be so charged, then there ought to be an account taken of the rents and profits of the respective farms for the last two years. But as each party has continued in the possession of their respective original farms, and as the farm of the plaintiff is to be considered as exceeding in value [*364] *the defendant's farm, to the amount of 10,750 dollars, I think it would be just and equitable to leave each party in the enjoyment of the rents and profits which he has hitherto received, and that int3rest on the sum should not commence until the titles and possessions are exchanged. The decree will then be, that the parties mutually convey and deliver possession by the first of April next, and that the defendant pay to the plaintiff, in two years from that day, the 10,750 dollars, with interest, annually, from the first of April next, and give security according to the award ; and that, in tiie mean time, neither party commit waste on the premises oi 288 CASEtJ IN CHANCER?'. oui which ihe) are now in possession ; and that the defendant 1815. pay to the plaintiff his costs of this suit, to be taxed. Decree accordingly. DzNToie V- DZNTOK Mart Denton against S. Denton. Where a wife had filed a bill fur alimony, &c. against her husband, ana it appeared that he had abandoned her without any support, and threatened to leave the state, the Court, on the petition of the wife, granted a writ of rae exeat republica against the husband. Pending a bill for a divorce by a wife against her husband, and before answer,the Court will allow a monthly suiri to the wife as alimony, and also a sura to be paid to her, by her husband, towards defraying the expenses of her suit. THE petition of the plaintiff stated, that, in January last, Feb. 23d. she filed her bill against the defendant, setting forth that she was married to the defendant on the 25th of October, 1795, in this state, and that they were then, and still are, citizens and residents of this state. That on the 20th of April, 1814, the defendant broke up housekeeping, though for years be- fore, his annual expenses for housekeeping were between *4 and 5,000 dollars. That the defendant abandoned the [*365 plaintiff without home or support, and had since treated her with great cruelty and persecution, and denied her all support : that she had no means of living : that the de- fendant was a man of large fortune, and threatened to leave the United States. And she prayed a writ of ne exeat, and a writ of supplicavit,' to restrain the defendant from disturbing her retreat, and for security, and for money to prosecute the suit, and also for a weekly or. monthly allowance. The bill for a divorce was filed, but no answer was yet put in. The facts stated in the petition were supported by affida- vits, from which it also appeared that the defendant was a man of fortune, and worth above 200,000 dollars. T. Sedgwick, for the petitioner, cited 2 Burns's Ecc. Law, 432. Gibson's Codex. 445. 1 Oughton Ordo Jud. 306. 309. Ambler, 63. Sid. 118. 2 Atk. 210. The Chancelloh. The bill filed in this cause states matter properly cognizable in equity. It is as well for alimony as for other relief The allowance of a ne exeat. Vol. \. 37 289 365 CASES IN CHANCERY, 181 5. when the husband threatens to leave the state, and his ivife \^^-^s^-^»~' without any support, is essential to justice, and has been Brumlt granted in like cases. (2 AtJc. 210. Amb. 76. Dickens, 154.) West^hes- From what was said in the case of Mix v. Mix,-f as well as terManhfac. from the cases now cited, the rule appears to be, that me t/««^«T W9 ^'^^ ^^^ ^^ under the necessity of carrying on a suit against her husband, or of defending one against him, is entitled, as well to a reasonable allowance to be paid by the husband for the necessary expenses of the suit, as to an allowance for alimony pending the prosecution. I shall, accordingly, allow the ne exeat, and direct security under it to be taken, in the sum of 25,000 dollars, and shall, also, allow at the rate of 100 dollars per month, for alimony, and the further sum of 250 dollars, to be paid by the defend- ant to the plaintiff, or to- the register, or assistant register, on i * 366 ] her *behalf, towards defraying the necessary charges of the suit, on her part. Brumly against The Westchester County Manu FACTURING SoCIETY. Individual members of a corporation may be called upon to answer to a bill of discovery under oath ; but in that case, the individuals must be named as defendants in the bill. Where a bill was filed against a corporation generally, who put in an answer under their corporate seal, the Court refused, on motion, tn order certain officers of the corporation to make oath to the ansivei so filed. Ffi. 27ih. MOTION, on the part of .the plaintiff, that the answer filed hy the defendants he sworn to by Richard Ward, pres- ident, and John Bonnett, jun., secretary of the said society, and by Philemon Hdlstead and Ichabod Prall, directors thereof. The motion was accompanied with an affidavit of the solic- itor, stating that the bill was filed on the 14th of October last, and that, on the 28th of January last, the answer was filed under the seal of the defendants, and signed by the president and secretary, but not sworn to. Dyckman, for the plaintiff Colden, contra 290 CASES IN CHANCERY. 366 The Chancellor. It does not appear that this is a bill 1815. merely for discovery of writings, as was the case in 1 Vern. 117. ; and if it was, the case would not warrant the motion that the defendants named should swear to the very answer put in, on behalf of the corporation. The principle is es- tablished by that and by other cases, ( Wych v. *Meal, 3 P. [ * 367 ] JVms. 310., and Dummer v. Corporation of Chippenham, 14 Fes. 245.) that the Court will call upon individual mem- bers of a corporation to answer not only with the rest under the common seal, but individually, upon oath ; but in those cases the defendants, whose discovery under oath was sought, were named in the bill as defendants. The application, therefore, in its present shape, must be denied, with costs. Motion denied Rogers against Rathbun. [See post *441.1 On a bill for discovery, on a charge of usury, an injunction will not be granted to stay proceedings at law on the note, or usurious contract, unless the plaintiff tenders, or brings into Court, the money actually lent, and the lawful interest thereon. BILL for an injunction, charging that the plaintiff applied MarrA7tii. to the defendant, on the 16th of March, 1812, for the loan of 500 dollars, and agreed to give him at the rate of 1 1 per cent, interest, and to execute a negotiable note, with Beriah Palmer, as endorser, payable in six months. That the agreement was carried into eflect ; and, on giving the note, the plaintiff paid to the defendant interest, at the rate of 11 per cent, per annum ; that the defendant has commenced a suit on the note in the Supreme Court. The bill called on the defendant to answer to the above charge, and prayed for an injunction and subpoena, and for general relief; and expressly waived all forfeitures to which the defendant might be liable by reason of the premises. The Chancellor. The bill prays for a discovery of the usury charged, and, consequently, to subject the defendant *to a forfeiture at law of his whole debt ; and as the bill [ * 368 does not contain an offer, or tender, of the sum actually borrowed, with the lawful interest, after crediting the eleven per cent, already advanced, the motion cannot be granted. 291 JrtS CASES IN CHANCERY 1815. It is a settled principle, that he who seeks equity, must do y^t^-s/^'*,^ equity ; and if the borrower comes into this Court for reiiel Trustees of against his Usurious contract, he must do what is right, as KiNosTON between the parties, by bringing into Court the money ac- Tappek. tually advanced, with the legal interest, and then tne Court will lend him its aid as against the usurious excess. To compel a discovery, without such offer, would be against the fundamental doctrine of this Court, which will not force a discovery that is to lead to a forfeiture. (Bosaru/uet v. Itmhwood, Cases temp. Talbot, 38. Fitzroy v. Gwillim, 1 Term Rep. 153. Viner, tit. Usury, 315. Chaunceyv. Taheur- den, 2 Atk. 393. Earl of Suffolk v. Green, 1 Alk. 450.) Injunction denied. Trustees, &c., of Kingston against Tappen. A witness who has been examined before a eommissioner, 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. VAN FECHTEN, for the plaintiffs, moved to have the deposition of Moses Gomans, a witness on- the part of the plaintiffs, taken before a commissioner appointed by con- sent of the parties to examine witnesses on both sides, amended, upon affidavit of the witness, stating, that his testimony, as taken down by the commissioner, was materi- [ * 369 ] ally *mistaken, in certain particulars stated, and not truly taken down. /. Hamilton, contra, read the affidavit of the commissioner, that the testimony of Gomans was truly and accurately taken down as he gave it, and distinctly and audibly read to him afterwards, and before he subscribed it. He also read the affidavits of two other witnesses, as to what the witness had declared that he knew before he was sworn. The Chancellor. Here is no suggestion of any tam- pering with the witness, and I am bound to presume there is a mistake or misapprehension on one side or the other. The cases of Griells v. Gansell, and of Darling v. Stanifordt 292 CASES IN CHANCERY 369 (2 P. Wms. 646. Dickens, 358.) show, that re-examina- 1815. tions have been allowed in such cases ; and, in the latter case, the Court took the re-examination from the examiner into their own hands. Let the witness be re-examiued before one of the examiners of the Court. Rule accordingly. *Benedict against Lynch. [ * 370 1 [Distingmehed, Hopk. 630: 11 Paige 357. Ovenoled, 1 Edw. 5; 3 Sandf. 272; 16 Wend. 460.] A bill for a specific performance of an agreement will not be sustained where the remedy is not mutual, or where one party only is bound by the agreement. 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 acquies- ceHce, or subsequent waiver by the other party, the Court will not help the party in default. Where A., in March, 1810, agreed to purchase a farm of B., and to pay 250 doUara in one year ; one third of the residue of the purchase money in one year thereafter ; and the other two thirds in the two successive years; and on the payments being made, B. was to give a deed ; and if he failed in the payments, or either of them, the agree- ment was to be void : and A. entered into possession under the agreement, and made improvements, but made no payments ; and B., in October, 1813, above two years after the first default, supposing the agreement void or abandoned, sold the farm to a third person ; a bill filed by A., in 1814, on a tender of the whole purcliase money, for a specific performance of the agreement, was dismissed with costs. If a deed, afler mentioning a specific consideration, adds, " and for other considerations," it seems, that parol evidence is admissible to show what were those other considerations. THIS was a bill for the specific performance of an agree- Aptt lit ment for the sale of the land. The plaintiff stated, that, on the 28th of March, 1810, he contracted with the defendant for the purchase of land, described in the agreement signed by the defendant, which was as follows : "that it was there- by agreed between the parties, that the defendant sell to the plaintiff a piece of ground, (described therein,) containing 39 acres, at 14 dollars and 50 cents per acre, and upon the following conditions being performed, to wit, that the plain- tiff pay to the defendant 250 dollars in one year; (3Iarch, 1811;) one v— .»_ the plaintiff acquiesced in the sale, and declared that he Benedk.t should abandon the premisfes whether Hills purchased or lynch not. Tliat on the 2d of October, 1813, the defendant con- tracted with Hills for the sale of the premises for 700 dollars; and he paid above 500 dollars of the purchase money. The facts alleged in the answer were proved by the de- fendant's witnesses. The plaintiff proved that the farm was worth more than 20 dollars per acre, and that the improvements on it were worth about 300 dollars, the annual value of which was about 40 dollars. Gold, for the plaintiff. J. Lyndh, for the defendant. The points and authorities are so fully discussed in the judgment delivered by the Court, that it is unnecessary to _ state the arguments of the counsel. The Chancellok. I have considered this case with great attention, and I cannot discover any just principle *arising out of the facts that will warrant a decree for a [ * 373 ] specific performance. The bill is founded on an agreement of the 28th of March, 1810, signed by the defendant only, and by which he agreed to sell to the plaintiff the land in question, " upon the- fol- lowing conditions being performed at the times stipulated, to wit, that the plaintiff should pay the defendant 250 dol- lars within one year; one third of the remainder in, one year thereafter ; one third in the next year ; and the balance in the year following, with interest, annually, upon: all sums unpaid from the date ; and upon his complying with the above payments, with the interest, at the respective times for that purpose above mentioned, the defendant agreed to give a deed ; but if he should fail in them, or either of them, the agreement to be void." Under this agreement, the plaintiff entered into possession, and made improvements, but he made no payments; and in October, 1813, (and which was above two years and a half after the first default,) the defendant, considering the agreement as void or aban- doned, sold the land to another person, and, in February, 1814, the plaintiff filed his bill for a specific performacce. I need not stay to examine how far the objection of a want of mutuality is applicable to this contract, since the 295 .173 CASES IN CHANCERY. 18 15. decision can be placed with more satisfaction upon the m ^^.if-s — «»^ trinsic merits of the case. But the point being stated by Bekk )ict the counsel, I am unwilling to pass it by, without observing ,_, ' J, that it has been ruled in severa-l cases, (Armiger v. Clarke, Bunb. Jll. Bromley v. Jefferies, 2 Vern. 415.) that a bill for a specific performance will not be sustained, if the remedy be not mutual, or where one party only is bound by the agreement. This doctrine received a very clear illus- tration, and an explicit sanction, in a late decision by Lord Redesdale. Ji^Lawrenson v. Butler, 1 Schoale &/■ Lefroy, 13.) Though there are other cases in which an agreement has not been deemed within the statute of frauds, and a specific performance has been decreed} when the contract was * 374 *signed only by the party sought to be charged, (^Seton v Slade, 7 Vesey, 265. Fowle v. Freeman, 9 Ves. 351.) yet the contrary opinion appears, from the most recent de cisions, to be now prevailing. (Champion v., Plummer, 5 Esp. N. P. 240. Huddleston v. Briscoe, 1 1 Vesey, 592.) There was an express stipulation in this contract, tliat if the plaintiff failed in either of his payments, the agreement was to be void. The first question that naturally presents itself is, whether the time Was not here made part of the essence of the contract, and whether the contract did not become void on the failure of the plaintiff to make the first payment, in 1811. Lord TAurfow is said to have intimated, in Gregson v. Riddle, (cited in 7 Ves. 268.) that time could not be made of the essence of the contract even by a positive stipulation of the parties, but there was no decis- ion on that point ; and in other and later cases, (Lhyd v. , Collett, 4 Bro. 469. 4 Ves. 589. n. Seton v. Slade., 7 Ves. 265.) it has been admitted, that the parties may make the time of the essence of the agreement, so that if there be a default at the day without any jiist excuse, and without any waiver afterwards, the Court will not interfere to help the party in default. The case is not analogous to that of a mortgage, where the only object of the security is the pay- ment of the money, and not the transfer of the estate ; and it seems to be conducive to the preservation of good fsuth, and the rights of parties, that if a contract of sale is expressly declared to be vacated on non-performance by a given day, that the Courts should not interfere, as of course, to annul Buch a provision. The opinion of Lord Loughborough, in Lloyd V. Collett, contains a strong and decisive argument upon this point. "There is nothing," he observes, "of more importance than that the ordinary contracts between man and man, which are so necessary in their intercourse with each other, should be certain and fixed, and that it should be certainly known when a man is bound, and when 296 CASES IN CHANCER?. *375 *r.ot. There is a difficulty to comprehend how the essen- 1815. tials wf a contract should be different in equity and at law. ^-^^"s/—^ [t is one thing to say the time is so essential, that, in no case Bekedici in which the day has been by any means suffered to elapse, ltsi-h. the Court would relieve against it, and decree performance. The conduct of the parties, inevitable accident, &c., might induce the Court to relieve. But it is a different thing to say the appointment of a day is to have no effect at all ; and that it is not in the power of the parties to contract, that, if the agreement is not executed at a particular time, they shall be at liberty to rescind it. In most of the cases there have been steps taken." " I want a case," he says, " to prove that where nothing has been done by the parties, this Court will hold, in a contract of buying and selling, a rule that the time is not an essential part of the contract Here no step had been taken, from the day of the sale for six months after the expiration of the time at which the contract was to be completed. If a given default will not do, what length of time will do ? An equity arising out of one's own neglect ! It is a singular head of equity." It would be impossible for me to add to the perspicuity and energy of this reasoning ; and the lord chancellor, in that case, held, that as the vendor had omitted to complete a purchase for six months, being all that time in default, he was considered as having abandoned the contract ; and he said there was no case where no step had been taken by the one party, and the other had immediately, when the time had elapsed, refused to perform the agreement, that a performance had been decreed. It may, th^en, be laid down as an acknowledged rule in Courts of equity, (and so the rule is considered in the ele- mentary treatises on this subject,) {Newland on Contracts, 242. Sug. L. of Vend. 3d Lmd. edit. 268.) that where the party who applies for a specific performance has omitted to execute his part of the contract by the time appointed for that purpose, without being able to assign any sufficient justification *or excuse for his delay ; and when there is [ * 376 I nothing in the acts or conduct of the other party that amounts to an acquiescence in that delay, the Court will not compel a specific performance. The rule appears to be founded in the soundest principles of policy and justice. Its tendency is to uphold good faith and punctuality in dealing. The notion that seems too much to prevail, (and of which the facts in the present case furnish an example,) that a party may be utterly regardless of his stipulated payments, and that a Court of chancery will, almost at any time, relieve him from the penalty of his gross negligence, is very injurious to good morals, to a lively sense of obligation, to the sanctity Vol. I. 38 ag- 376 CASES IN CHANCERY. 181& of contracts, and to the character of this Court. It would beat v^^-v— «»i_' against all my impressions of the principles of equity, to Benedict help those who show no equitable title to relief. Lynch. It may be useful, however, before we come to apply the rules of the Court to the facts in this case, to look more par- ticularly into the cases on the subject of relieving parties from delays in performance of contracts for the sale of land, : It was formerly supposed that the time fixed on for the completion of the contract was quite immaterial; and. there are some cases which have given countenance to this, idea; The case of Vernon v. Stephens, (2 P- Wms. 66*) was a bill brought by a vendee for a specific performance after repeated defaults; but in that case different payments had . been made and accepted, and further time had been given after each default, by agreement in writing ; and the final default, after the last agreemeiit, arose from the death of, the original vendor, and a neglect for some time to take out letters of administration, so that the last default was reason- ably accounted for ; and the case, therefore, proves nothing!) . in favor of a party in default, without excuse, and without a waiver from the ' opposite party. The case of Gibson v. Patterson, (1 Atk. 12.) in which Lord Hardwicke was supposed to have held, that non-performance at the time was ^ • 377 ] *very immaterial, is proved to be most inaccurately reported,/; and that Lord Hardwicke made no such decision in that case, and the fact^ admitted of no such deduction. (4 Ves.'. 689, 690. n. 4 Bro. 491. 13 Fes. 228, 9.) And, indeed, i. in another case, (1 Ves. 450.) Lord Hardwicke lays down the true rule on this subject, when he says, that it is the ' business of this Court to relieve against lapse of time in the performance of an agreement, and especially where the non- performance has not arisen by default of the party seeking to have a specific performance. So it was also held, in the case of Hayes v. Caryll, as early as 1702, (5 Viner, 538. pi. 18.) that where one person has trifled, or shown a back-: wardness in performing his part of the agreement, equity will not decree a specific performance in his favor, especially if circumstances are altered. I do not perceive, therefore, that, in the more ancient cases, there is real ground for the opinion that the time stipulated for the performance of a contract is of no moment in this ' Court ; and I am at a loss to conceive how sach an extrava- gant proposition should ever have gained currency. It is certainly, and very justly, exploded in the modern decisions. In Pincke v. Curtis, (4 Bro. 329.) the suit was by the vendor for a specific performance, and the plaintiff had failed, for near 3 month after the specified day, to complete his title ; but it appeared that the delay arose because the title 298 CASES IN CHANCERY. 37' depended upon the event of a chancery suit, and the vendee 1815. was apprized of this cause of the delay, and acquiesced in it, and was willing to go on with the purchase, and a performance was consequently decreed. The case is not well reported ; (see the note to Sugden's Law of Vendors, p. 278.) but these were the true grounds of the decree, and the chancellor said, that if the vendee had called for the deposit at the end of the lime limited for completing the purchase, and had in- sisted not to go on with the purchase,- the Court virould not have compelled him. The *case of Fordyce v. Ford, (4 [ * 3T8 ] Brq. 494.) is to the same effect. There was a delay short of two months beyond the stipulated time ; but when the abstract of the title was delivered to the vendee, he made no objection, but acquiesced ; and if he had not, said Lord Ahanhy, I should not have decreed a performance ; and the rule now is, that if either party has been guilty of gross negligence, the Court will not lend its aid to complete the contract; and he hoped, he said, that it would not be un- derstood, from that decision, that a man is to enter into a contract, and then to think that he has his own time to per- form it. These were cases of delay on the part of the vendor ; but the rule applies equally to both parties, and the purchaser who neglects his part of the engagement, will be left to his remedy at law, (if he has any,) though he may have paid part of the purchase money. He cannot be suffered to lie by and speculate on the rise of the estate. The cases of Spurrier v. Hancock, and of Harrington v. Wheeler, (4 Ves. 667. 686.) were on bills filed by the purchaser for a specific performance ; and, in the latter case, he had paid part of the purchase money ; but the bill, in each case, was dismissed, on account of his laches, and trifling and unreasonable delay. The observation of the master of the rolls, in Milward v. Thanet, (5 Ves. 720. n.) is very.emphatical on the subject before us. He observed, that Lord Kenyan was the first who set himself against the idea that had prevailed, that when an agreement was entered into, either party might come at any time ; and that it was then perfectly known that a party cannot call upon a Court of equity for a specif- ic performance, unless he had shown hinjself ready, desirous, prompt, and eager. Guest v. Hornfray (5 Vts. 818.) is another strong case on the point. Specific performance was there refused on account of the laches of the plaintiff, who was the vendor. Here the purchaser had been put into possession when the contract was made, but *the question [ * 379 ] was, as the Court said, whether the plaintiff had done enough to show he took all the pains he could to be ready to carry the agreement into effect; and as it did not appear that he 299 379 CASES IN CHANCERY. 1S15 had done all he ought to have done, and though the delaj ,„„.'-v--.^-' was but three months, and the plaintift' had met with an un. Benedict willing purchaser, who meant to get rid of the contract if he ■ >'Ncn could, the bill was dismissed. If, on the other hatid, the circumstances of the case, and the conduct of' the opposite party, will afford ground for a just inference that he has ac- quiesced in the delay, and waived the default, the non-per- formance at the stipulated time will be overlooked, and wiJI be deemed to have been waived by the other party. The cases of Seton v. Slade, (7. Ves. 265.) of Smith v. Bumamj (2 Anst. 527.) and of Paine v. Meller, (6 Ves. 349.) as well, as many others which might be cited, turn upon this distinc tion. From the review which I have taken of the cases, the general principle appears to be perfectly- established, that time is a circumstance of decisive importance, in these conr tracts, but it may be waived by the conduct of the party ; that it is incumbent to the plaintiff, calling for a specifie performance, to show that he has used due diligencej or, if not, that his negligence arose from some just cause, or has been acquiesced in ; that it is not necessary for the party re- sisting the performance to show any particular injury or inconvenience ; it is sufficient if he has not acquiesced in the negligence of the plaintiff, but considered it as releasing him. These principles appear to me to be founded in natural justice, and to be equally conducive to public convenience, and to the maintenance of public morals. . oij I shall cite only one more case, that of Alley v. Deschamfd, (13 Ves. 224.) which was a late decision by Lord Erski^, and which, in all the circumstances of the case, is very anal- ogous to the one now before me. It was a bill in behalf of [ * 380 ] a purchaser for a specific performance ; he *was to pay by instalments, and was put into possession upon the execu- tion of the agreement. He afterwards became embarrassed, and unable to comply with the terms, though he had paid lOOZ. in part satisfaction of the contract. The bill was filed before the last instalment was due. The defendant, in his answer, said, that the contract was considered by him as re- linquished, and that the plaintiff was suffered to continue in possession as tenant. The lord chancellor said, he should take it that the agreement was not abandoned, and that the plaintiff did not, by his own act, consent to rescind it; but, he said, that under the circumstances of the case there was not a color for decreeing a specific performance and that his judgment proceeded upon a plain principle, that a bill for specific performance would not be endured under such circumstances ; that it would be dangerous to permit parues to lie by, with a view to see whether the con- 300 CASES IN CHANCERY. ;18C tract would prove a gaining or losing bargain, and, accora- 1815. ing to the event, either to abandon it, or, considering the _^»-x/-«w lapse of time as nothing, to claim a specific performance ; Benedict that here nothing had been done except the one small pay- ltfch ment towards performance when the purchaser became bankrupt, nor afterwards, until the premises, by a subsequent event, proved to be much more valuable than they were at the time the contract took place. The bill was dismissed with costs, It is impossible not to be struck with the close analogy between that and the case now under consideration. Here the purchaser has paid nothing, but suffered defaults to ac- cumulate, year after year, as if he had forgotten that he was under any obligation to pay ; and if the land had not risen in value within the last two or three years, so as to render the purchases an object of speculation, there is no reason to believe that the plaintiff would ever have attelnpted to raise the money out of the benevolence of his friends. I think that, within the reason and spirit of all the cases, here *was a gross negligence on the part of the plaintiff, that takes [ * 381 away his claim to assistance. The circumstances attending the new agreement between the parties, of the 14th of Ma-rch, 1812, prove, conclusively, that the original contract was expressly abandoned. This agreement, by which the plaintiff contracted with the de- fendant to clear off and fence five acres within one year, does not, of itself, import that the orignal agreement was, or was not, abandoned ; and parol evidence is admissible to explain that- fact, which is collateral to the operation of the instrument, i Such evidence would not vary or qualify the effect of it; it would only go to repel any presumption, or rebut any equity, which might be attempted to be induced from the instrument itself. But there is another ground on which the parol evidence, to which I allude, is competent. This agreement is stated to have been given in consideration of one dollar, arati for various other considerations; and it was admitted by Lord Hardwicke, in the case of Peacock v. Monk, (1 Ves. 127.) that if a deed, after mentioning any particular consideration, adds, and for other considerations, you may enter into proof of these other considerations ; and the same doctrine was alluded to in the case of Maigley v. liaucr, (7 Johns. Rep. 341.) There is no repugnancy, in such a case, between the proof and the deed. It is then proved in this case, by two witnesses, (James Lynch and Mansel Falcot,) that when the agreement was made, the 'defendant, by his agent, stated to the plaintiff, that as he had failed in his contract, the plaintiff must sell the land to some other person ; that the plaintifi" admitted he could not 301 V. BissEi.r.. 381 CASES IN CHANCERY /815. V^y fo"" the land, and that if the defendant would permit him v_<»~v'-.»-^ to remain on the land for one year, he would then abandon Sanford the same, and give up the possession ; and, as a considera- tion for continuing on the land for the year, he .would clear and fence five acres ; and that the writing was given for that purpose. In addition to this testimor y, we have that [*382J oCJosiah Hills, who states, that in * September ^ 1813, he went with Samuel Hills to the plaintiff, and the plaintiff then told him that he could not pay for the land, nor com- plete his purchase, and that he expected to leave the land in the course of the then next winter, and that he was willing to give up the possession, and even offered to sell his claim under the contract for 10 dollars, though without warrant- ing a deed. This was the person who, a few days after, purchased the land of the defendant, and paid most of the consideration money. No doubt this purchase was greatly induced by that conversation ; and the plaintiff, after such continued and gross neglect in not complying with his ori- ginal contract, and after such express abandonment of the purchase, and after such admissions to a subsequent pur- chaser, comes into this Court, without any color of equity, to ask for a specific performance. I shall, accordingly, dis- solve the injunction, and dismiss the billj with costs. Decree accordingly. '383] *SANroRD agai"^* Bissell and others. If exceptions are taken to an answer, and the defendant submits to "the exceptions by putting in a further answer, the plaintifijif he'thinke the second answer not sufficient, should, within a reasonable time, say, three weeks, ohlain an order to refer the answer to the mastqr for insufficiency. And the plaintiff ought, eitherin the orderof reference, or by notice to the defendant, to specify to which of the excepliona the second answer is still imperfect. Where exceptions to an answer were taken in JVovember, and the defend- ant put in a second answer in December, and the plaintip", in March following, obtained a rule of reference to the master, without any notice to the defendant, the plaintiff was deemed to have acquiesced in the second answer, and the order of reference was set aside: And though the second answer was not accompanied with an offer to pay the costs of the exceptions, which the defendant, in such case, IS regularly bound to pay; yet, as the plaintiff nade no objectiOTi,on that ground, nor called on the defendant for the costs, he was pre- cluded from making that objection aflerwards. 30» CASES IN CHANCERY. 38:i 1815. FAN VECHTEN, for the defendants, moved to set v_^-n,-w aside the order of reference entered in tliis cause, on an Sanfort> affidavit, stating, that on the 22d of October last, he filed an bissell. answer in the cause; that exceptions to the answer were April Ut.. filed on the 12th of November; that an answer to the excep- tions, or further answer, was filed on the 8th of December, and notice thereof given ; that an order was entered on the 17th of March last, referring the bill, answers and exceptions, to a master ; that no notice had been given of any step taken by the plaintiff since filing the exceptions, until a summons was given by the master, under the above order of reference. He objected to the reference, first, as being out of time ; and, secondly, as being too general, and not stating which of the exceptions were insufficiently answered. He cited Parker's Analysis of Ch. Practice, 16. 1 Turner's Prac. *Int. 22. 1 Harr. Prac. 31 1., and the 12th and 57th rules [ * ,'/84 ] o{ June, 1806. J. Hamilton, contra. The Chancellor. This is a case in which the defendants submitted to answer the exceptions by putting in a further answer ; and if the plaintiff had conceived the second an- swer insufficient, he should, within a reasonable time, have obtained an order to refer it to a master for insufficiency. The case was not within the letter, but it was within the spirit, of the 12th rule of June, 1806 ; and three weeks would have been a reasonable time. A delay of three months, before a reference is applied for, or any objection made, is certainly out of time ; and the party ought to be concluded, or to be deemed to have acquiesced in the further answer. There is, also, weight in the objection, that the plaintiff has not specified, either in the order of reference, or by notice, to which of the exceptions the second answer is still imperfect. By referring both answers, and the exceptions generally, the other party must be utterly at a loss in what respect he has failed ip his submission. The practice is not to take exceptions to the second answer ; but to state, gen- erally, which of the exceptions is not duly answered, is giving to the defendant reasonable information, without any violation of this rule of practice. The second answer does not appear to have been ac companie't vvitri an offer to pay the costs of the exceptions ; and if a defendant submits to answer the exceptions, he must pay costs. But no objection was made to the answei on this ground. The plaintiff consented to receive it by 303 J84 CASES IN CHANCERY. 1815. including it in the order of reference, and, if he meant to relj •,^-^,y-„^ on the want of his costs, he should have called on the othei Moore party for them. Cable. ^0^^°" g'^'^nted [ * 385 J *MooRE against Cable. [DiBtingulshed, 11 Faige 695.] Possession by the mortgagee, for a period short of twenty years, will noi bar the equity of redemption ; the possession must be an actual, quiet, and uninterrupted possession, for twenty years, or a period sufficient to toll the right of entry at law. A »i.ortgagee or assignee, in possession, is not to be allowed for his im- provements in clearing wild land, but only for necessary reparatiDns,a &c. ; and must account for the rents and profits received by him, • except such as have arisen exclusively from his own improvements. Apriiiih. BILL for the redemption of a mortgage. On the 26th of February, 1789, William Brown, being seised of the premises, lot No. 54. in Smith Sf Graves's patent,' conveyed the same to Joseph Roe, who, for securing the purchase money, reconveyed them to Brown, by mortgage, dated the 27th of February, 1789, and conditioned for the payment of 40/. with interest, on the 1st of May, 1790. On the 28th of October, 1794, the mortgage was assigned to the defend- ; ant, for the consideration of 301., by the brother of Brownl', as his attorney. The heirs of Roe, on the 1st of August,, 1807, sold and conveyed the premises to the plaintiff, with covenants and warranty. It appeared that the defendant entered into actual pos- t session of the premises, by his tenants, in 1800, but had, previous to that time, exercised acts of ownership. He continued in possession until 1808, when he, in conjunction with one Corhin, took a lease from the heirs of Roe. Cor- bin, being in as tenant of the defendant, consented to let in the plaintiflF with him ; and the defendant brought an action, of ejectment, and recovered judgment in 1813, and has since continued in possession, and made improvements, by clearing part of the land, and has received the rents and profits. The plaintiff did not know, until the trial of the [*386] *ejectment, in 1H13, that the defendant held under a mort- gage, and had, in 1807, offered to purchase his interest. S. A. Foot, for the plaintiff. He eited 5 Bac. Abr. (it Mortgage, (E) 2 Cruise's Dig. 140. s. 18. 2 Salk. 450 304 CISES IN CIIANCEllY 386 Henry, for the defendant, contended, that the possession 1815. was to be presumed to be in the mortgagee, after the default v^^-n,'-*^ in May, 1790. (9 Johns. Rep. 604—614.) The remedy Moore in law, after such a length of possession by the mortgagee, CAsr-E would be gone, and so the equity of redemption was lost. (1 Powell on Mortg. 386. 3 P. Wms. 287.) The Chancellor. Two questions are presented by this case. 1. Is the plaintiff entitled to redeem ? 2. Is the defendant entitled to an allowance for the im- provements he made while in possession, by clearing a part? 1. It appears that Cable, the assignee of the mort- gagee, took actual possession of the premises in the year 1800, though he had exercised acts of ownership previous to that time. It does not appear in what those acts of own- ership consisted, nor how long, previous to the time of the actual entry, those acts had taken place. It was in the power of the defendant, as the fact was within his own knov^ledge, to have afforded clear and decisive testimony on this point, and as he has omitted to do it, he is not entitled to the ben- efit of any presumed possession prior to the year 1800. His actual possession, in any view of the case, falls far short of the length of time which has been adopted by the Courts of equity as sufficient to bar the right of redemption. They have taken the period of twenty years of quiet and uninter- rupted possession by the mortgagee, as being the period that, by the statute of limitations, tolls the entry at law; and I believe there is no case to be found in which a less period has been held a bar to the equity of redemption. A length of *time, said the lord chancellor, in Cook v. Arnham, (3 P. [ *3B7 j Wms. 283.) which will not bar an ejectment, cannot bar a bill in equity. And in another case, (Anon. 3 Atk. 313.) Lord Hardwicke held the period of fifteen years (which is ■ precisely the time here) no bar to the redemption, and that the assignee of the equity (as is also the case here) had the same right to redeem as the mortgagor himself. Nor will a mere constructive possession, for 20 years, be sufficient. The Courts require an actual possession by the mortgagee during the period that is to form the equitable bar ; for, as they adapt the rule by analogy to the statute of limitations, it requires the same actual and continued possession to form a bar in equity that is requisite to form a bar at law. The idea suggested by the counsel for the defendant, that as the mortgaged premises were, probably, wild, uncleared lands, possession is to be deemed to have followed the right, and to have been in the mortgagee after default of payment, is not applicable to this case. That fiction was adopted by the Vol. I. 39 305 387 CASES IN CHANCER Y. 1815. Courts to preserve the lands of the true owner, while in their .,.,*— ,,-^^ uncultivated state, from -intrusion and trespass; and ij srooKE would be a perversion of the rule, to make it operate by CiBLE* way of extinguishment of a right. Nothing short of aetual possession for twenty years will, at law, toll the entry of the true owner ; and the equity of redemption, which, in this Court, is the same as the fee at law, ought to be equally protected. The plaintiff, therefore, as assignee of the equity of re- demption, is entitled to redeem. 2. The next question is, whether the dtfendant, standing in the place of the mortgagee, can be allovved for what ihi ciise states as improvements in qlearing part of the lanJ. Such an allowance appears to me to be unpiecedented in the books, and it cannot be admitted consistency with es- tablished principles. The defendant was, in this case, a volunteer. Instead of calling upon the debtor, or foreclos- ing the mortgage, he elected to enter upon uncultivated I * 388 1 *lands, and to exercise acts of ownership by clearing a part. To make the allowance would be compelling the owner to have his lands cleared, and to pay for clearing them, whether he consented to it or not. The precedent would be liable to abuse, and would be increasing difficulties in the way. ol the right of redemption. Many a debtor may be able to redeem by refunding the debt and interest, but might not be able to redeem under the charge of paying for the beneficial improvements which the rnortgagee had been able and willing to make. The English Courts have always looked with jealousy at the demands of the mortgagee, beyond the payment of his debt. In French v. Baron, (2 Atk. 120.) the chancellor would not allow the mortgagee any thing more than his principal and interest, though there was a pri- vate agreement between the mortgagor and mortgagee, for an allowance for the mortgagee's trouble in receiving thq rents and profits of the estate. The same thing was repeated .n the case of Godfrey v. Watson, (3 Atk. 517.) and Lord Hardwicke there said, that a mortgagee in possession was not obliged to lay out money any further than to keep the estate in necessary repair; but if the mortgagee had ex- pended money in supporting the title of the mortgagor when ' it had been impeached, he would allow it. The same doc- trine was maintained in the case of Bonethon v. Hockmore, (1 Vern. 316.) in which it was declared, that no allowance was to be made to a mortgagee or trustee for their care and pains in managing the estate. I shall, accordingly, direct a master to compute the prin, cipal and interest due on the mortgage, down to the first of Januai-^ last, and that, in taking the account, he charge the 306 CASES IN CHANCERY. 383 defendant with the net amount of the rents and profits re- 1815. ceived, except such as shall appear to have exclusively arisen v_i^-n/— ^ from his own expenditures in improvements ; and that he Wn-LiAMsen allow for the expense of necessary reparations, if any, but parisien. not for improvements in clearing part of the land ; and *that he report with all convenient speed: all the other [*389 'luestions are in the mean time reserved. Decree accordingly. Williamson against Jane Parisien, alias dicta, &c. [S€e/wrf*190.] To entitle a party to sustain a bill for a divorce, under the statute, (sesB. 36. ch. 102. 2 JV. jR. i. .197.) be must be an actual and bona Jide inhabitant of the state at the time of the adultery committed, and at the time of exhibiting the bill. Where the plaintifi^ a native of Scotland, married his wife in JVew-York, in 1780, and left her in 1784, and went to the West Indies, and con- tinually resided abroad, excepting only a short visit to A'ew- York, in 1792, until the time of filing his bill for a divorce, in 1813, a period of 28 years ; it was held that he was not an inhabitant of the state, within the words or intent of the act. Though an absence of five years, of one of the married parties, may exempt the other, who marries again, from the pemil consequences of bigamy, under the provisions of the act, (1 A". R. L. 113.) yet the second marriage is null and void ; for nothing but the death of one of the parties, or the judicial decree of a competent Court, can dis- solve the marriage tie. THIS was a bill for a divorce, a vinculo matrimonii, Apriiz^ filed by the husband against his -wife, January 15, 1813, on the ground of adultery. The plaintiff stated, that in the year 1780, then being a resident in New-York, he married the defendant, then Jane Lowndes, an inhabitant of New- York, with whom he cohabited until the year 1784 ; and during their cohabitation had three children by her, two of whom are still living. That the plaintiff, being a mariner, in June, 1784, sailed from New-York for Jamaica, in the West Indies, and, from various causes and accidents, did not return to New-York until 1792. The bill charged that the defendant, in 1791 , committed adultery with Philip Parisien, in New-York, with whom *she pretended to have intermarried about that time, and [*390| still lived in adultery with him; and during such illicit in- tercourse with the said Parisien, has had six children by him, &c. 307 390 CASES IN CHANCERS 1815. The answer of the defendant, filed May 13th, 1813, stated, v.<»-v—^i.^ that the defendant was married in the city of New-York] VViLLiJiMsos in 1780; that the plaintiff cohabited with her about three Pabisieu years, during which time she had two children by -him, when he left her with child by him, which child was born a few weeks after his departure. That the plaintiff remained abroad eight years, settled in the island of Jamaica, acquired wealth,. and lived there in a state of adultery, and had not, since his departure from New- York, in 1784, contributed, in the slightest degree, to the support of the defendant, nor for the maintenance and education of her children. That ; she had, though struggling with great difSculties, by unwea- ried industry, maintained and brought up her children by him, one of whom died at the age of nine years. That the plaintiff took away her eldest son, at the age of 14 years. Concluding that the plaintiff had abandoned her forever, or was dead, as was generally belieVed, she married Parisieli, in 1792, with whom she had since lived in the marriage state, and by whom she had several children. That the plaintiff is a native and subject of Great Britain, having his resi- dence in the island of Jamaica, where he has a house of trade, plantations, and slaves. The cause was heard on the bill and answer, and an order of reference made, the 4th of September, 1813, to a master, to examine and report the truth of the facts set forth in the bill and answer. On the 17th January, 1814, the master made a report ■ of the evidence. The material facts proved are stated in the . judgment of the Court. On the 12th of Octoher, 1814, the cause came on, and was heard, ex parte, and. a decree entered for the plaintiff; but, on petition of the defendant, an order was made, the [ *39l j *31st of Octoher, for a rehearing. And the cause, accord- ingly, was brought on for a rehearing, January 25th, 1815. Burr, for the plaintiff. Van Vechten, contra. The Chancellor. The bill was filed the 15th of Jana- ary, 1813, and the answer, among other things, states, that the plaintiff " has his residence in the island of Jamaica, where he has a house of commerce, with other possessions, and slaves." Upon this bill and answer, a reference, upon the motion of the plaintiff, was made to a master, to inquire into the truth of the facts set forth in the bill and answer, and all questions arising thereon were reserved. Before, then, the question of adultery can be discussed, we muit 308 . ' CASES IN CHANOERY. 391 determine, from the facts stated in the report, whether the 1815. phiintiiT had a residence within this state at the commence- -,-^~v.-^_^ ment of the suit, so as to entitle him to sustain the action. Williamsoti The statute concerning divorces is very explicit on this sub- PiR^JiEN. ject, that the injured party must be " an actual resident in this state at the time of the adultery being committed, and at the time of exhibiting the bill." From the proof taker before the master, it appears, that the plaintiff is a native of Scotland ; that he came to Neio- York during the revolutionary war, and married the defend- ant in 1780 ; that, in June, 1784, he went to the West-Indies, and did not return to New-York until June, 1792 ; that, in the mean time, he was not heard of in his wife's family here, and it was generally supposed he was dead ; that he soon after returned to the West-Indies, though how soon does not certainly appear; that, about 1797, a son of his, by the defendant, went to live with him in the West-Indies ; that, as to his second or last return to this state, it must have been very shortly before the filing of the bill, for one of the wit- nesses says he saw him, for the first time, about two months *before the 13th of October, 1813, but that he understood he [ * 392 . had been here as long as nine months. Another witness saw him since his last return only, about three or four months before November, 1813 ; and a third witness says, that she had not heard of the plaintiff since his first return, until within about a yeay from November, 1813. These wit- nesses are all that speak on the subject of his last return to New-York ; and as they were acquaintances, or connectionSj of the parties, they were the persons who would, probably, acquire the earliest knowledge of his return. Considering that the plaintiff had continually resided abroad from June, 1784, down to near, or about, the time of the filing of the bill, (a period of above 28 years,) with the exception only of the short visit in 1792, I think here is a want of proof of residence in this state within the purview of the statute. The fact of non-residence was put in issue by the answer, and it was the business of the plaintiff to have fi' rnished some direct and positive proof of the time of his retarn, and of the establishment of his residence here. The fact was within his knowledge, and the omission to furnish the proof ought to turn every presumption against nim. His domicil was established abroad, and it is not changed by an arrival here for some temporary purpose, or on a transient visit. The party suing ibr a divorce must have become an inhabitant, and taken up his residence here with a bona fide and permanent intent. There must be the animus manendi, or a train of conduct and acts, showing an 309 392 CASES IN CHANCERY. 1815. intended settlement here, before he can lying himself within v„..^-N,-i*iw^ the policy, as well as the language of the statute. WiLLiAiiisoH The circumstances of ^this case are rather extraordinary, PiwsiEN. The plaintiff, after living with his wife for several years, and having children by her, abandons her while enseint, and goes abroad, and remains for eight years, without giving her either assistance or information. She presumes him dead, and marries again. He returns and discovers it, and, with appa- rent acquiescence, departs again for foreign parts, and con- I * 393 ] tinues *abroad for 20 years ; and he now, at this advanced period of his life, returns and prosecutes his wife for adul- tery, arising from the second marriage, after she has lived with her second or assumed husband, with his knowledge and appa- rent acquiescence, for so many years, and reared up a family of children. The case, on his part, presents a cruel aspect, and I feel no reluctance in being obliged to dismiss the bill; yet no conclusion must be drawn from this in favor of the validity of the second marriage. Though an absence for five years, of one of the married parties, will exempt the other, who marries again, from the penal consequences of bigamy, yet the statute provision goes no further ; and, be- yond all doubt, the second marriage is null and void; no length of absence, and nothing short of death, or the judi • eial decree of some Court, confessedly competent to the case, can dissolve the marriage tie. This is a principlcj I - may venture to say, that pervades the laws of all the Chris- tian nations of Europe. (1 Black. Com. 440. 4 Black. Com. 163, 164. Pothier, Trait du Contrat de Marriage, n. 437. 462—497., Ersk. Inst. vol. 1. p. 109. 1 13. Barrington,, on the Statutes, 401. Voefs Con. ad Pand. lib. 23. fit. 2. de Ritu Nupiiarum, s. 99.) There were other objections suggested to this bill, arising. from the conduct of the plaintiff, and the lapse of time, which I deem very important, but which I need not now discuss, as I find sufficient reason for dismissing this bill simply on the ground of a want of domicil here at the commencement of the suit. Bill dismissed, with costa 310 CASES IN CHANCERY. *394 1815. *Parkist against Alexander and others. ■^ n agent or trustee, undertaking a special business, cannot, on the sul^ jt.ct of that trust, act fop his own benefit to the injury of his principal. If iin agent undertakes to judge whether he may not innocently depart fiom the instructions of his principal, he does it at his peril. The registry of a mortgage js, of itself, notice, in law, to all subsequent purchasers. And, it seems, that the registry of a mere equitMe mortgage or encum- brance, is notice to the subsequent purchaser of the legal estate, so as to entitle such mortgage to a preference. THE bill stated that, in 1 804, William Tucker made a AprU 144k verbal agreement with William Alexander, now deceased, in his lifetime, for a lease to Tucker, in fee, for lot 4., in the village of Little Falls, subject to the annual rent of three poupds. That Alexander then acted as a sub-agent, to make verbal agreements, under Barent Bleecker, who was the attorney in fact of Efllis, the owner of the property, and authorized to make and execute leases in his name. That, a few months after that agreement, the plaintiff purchased Tuckerh right, for three dollars, and took possession of the premises, of which Alexander had notice. That, in 1805, the plaintiff built a house, and made valuable improvements on the lot, and, in 1806, built a barn thereon, and continued to occupy the premises, having expended above 600 dollars in improvements, until the 6th May, 1808, when he sold the premises, &c., to Alexander MKnight, for 550 dollars, and g;ave him a quit-claim deed ; and to secure the payment of the purchase money, took his bond, and a mortgage on the lot, which mortgage was duly registered the 27th of December, 1807. That, at the time of sale, it was explained to M Knight, that the plaintiff held the lot under a parol agreement only for a lease ; but that a lease should be procured from Barent Bleecker to confirm his title. *That, in 1810, the plaintiff requested William Alexander [ * 395 ] to obtain a lease of Bleecker, pursuant to the parotagreement. and Alexander, accordingly, procured a lease from Bleecker to the plaintiff, in fee ; but soon after Alexander discovered that the lease was incorrect in its description of the bounds of the premises, and advised the plaintiff to have the lease returned and corrected. That the pfeintiff accordingly authorized Alexander to surrender the lease, and procure a new one to M'Knight, with the intent thereby to give effect to the mortgage which M'Knight had made to the plaintiff, and Alexander engaged so to d,o,. well knowing all the facts relative to tlie lease. 311 395 CASES IN CHANCERY. 1815. That, at various times, in 1810 and 1811, the plaintiA ^_^— s^-^_^ inquired of Alexander, whether he had obtained the lease to I'ARKisT ' M' Knight, and he answered that he had neglected to do so Ai-exInder. That, in April, 181 1 , a default having been made in the pay- ment of M'Knighfs bond, the plaintiff caused the mortgagecf premises to be advertised for sale, under the power for ihaia purpose contained in the mortgage. That, on the 10th of- September, 1811, about a month before the day of sale, the plaintiff called onAlexander, and offered to take the incorrect lease himself, and get it exchanged for another, as he wished to obtain the new lease to M'-Knight before the day of sale. That Alexander then confessed that he had got the new lease in his own name; and that he had done it for the purpose of securing a debt due to himself from M' Knight. That the premises were sold on the 10th of October, 1811. for 125 dollars, to Thomas Smith, the agent of the plaintiff, who executed a release to the plaintiff, on the 14th of January, 1812. The bill charged that Alexander, in 1811, in violation of his engagement and trust, falsely represented to Bleecker, that the plaintiff requested to surrender the old lease, and that a new lease should be given to him, Alexander, which was done accordingly. That M* Knight is now, and has been for five years past, poor, so that the bond is of little or ' *396 ] *no value, and' the only security the plaintiff relies on is the mortgage. That there was a collusion between MKnight and Alexander to defeat the plaintiff's mortgage. That Alexander died intestate, in February, 1813, leaving a widow, who was adniinistratrix, and several children, his heirs at law, who are defendants. The plaintiff prayed that the lease might be assigned to him, or that the defendants ; should pay off the mortgage and the costs. The flea and ansioer of the widow and children of Alexander stated, that MKnight showed Alexander the deed from the plaintiff, and, in consideration of 700 dollars, (paid partly in cash, and part in satisfaction of an old debt due from MKnight to Alexander,) sold and conveyed the prem- ises to Alexander, by a release, dated the 5th of Januani. 1810. That the purchase was made by Alexander in confi- dence that M' Knight had a right to sell, and that,' before the payment of the money, Alexander had no notice of thi; mortgage, or of any right of the plaintiff to the lot. That the second lease of the lot, dated January 1st, 1810, was obtained by Alexander with the consent of MKnight, and without any notice of the mortgage or claim of the plaintiff That Alexander purchased the lot after he had been directed to. procure the lease ; and that he was first informed of the mortgage after the purchase and payment to M'Knight, anf" 312 CASES IN CHANCERY. 396 alter the plaintiff had advertised the sale underlie mort- 1815. gage. _ V s. . Alexander MKnight, who was also made a defendant, Parkist admitted the purchase of the lot, and the bond and mortgage, aiexakdkr as stated in the bill, and that the mortgage is unsatisfied. He stated that, without any intention to defraud the plaintiff, he sold the lot to Alexander about the 1st oi January, 1810, for 700 dollars, part of which was paid in cash, and the residue was to satisfy a debt due Alexandci , but he made no disclosure of the mortgage. It was proved by several witnesses, that the plaintiff requested Alexander to take back the first lease, and procure a new one, in the name oi M Knight; and that Alexander *promised to do so, and that the reason assigned for having [ * 397 ] the new lease in the name of M'Knight was to save expense. It did not appear that Alexander knew of the mortgage, until the advertisement for the sale of the premises under it. KlrMand, for the piamtifTs. ixold, contra. The Chancellor. The plaintiff is entitled to relief. The intestate was intrusted by him with the agency of procuring a lease in fee of the premises, in the name of Alexander M'Knight, and he promised to perform the trust. Instead of doing this, he, afterwards, purchases the equitable title of M'Knight, and, with the consent of M'Knight, but without the knowledge or consent of the plaintiff, took the lease in his own name. In consequence of this, a mortgage from MKnight to the plaintiff, and which was duly regis- tered prior to the taking of the lease, and prior to the deed of M' Knight, is now attempted to be superseded, by setting up this subsequent legal title in the intestate. This, I think, cannot, and ought not to be permitted. An agent, or trustee, undertaking a special business for another, cannot, on the subject of that trust, act for his own benefit to the injury of his principal. This is a sound and fundamental rule of equitable policy. (JSardwicke \ . Vernon, A Ves. 411., and see the case of Green and others v. Winter,^ May, 1814, t^^-'iP i!>- and the authorities there cited.) The consent of M'Knight alone was not sufficient to authorize this departure from the instructions, for they were given by the plaintiff himself, and accepted as coming from him ; and if the agent under- takes to judge that he may innocently depart from them, for the sake of his own interest, and that the variation car not be material, he does it at his peril. If il turns out that the Vol. I. 40 ;113 397 CASES IN CHANCERY. l8iO. departure will essentially affect the rights of the piincipal, ^,«,«>-~s^-^_^ the agent cannot, surely, establish any conflicting *interest Parkisi of his own upon such departure from his instructions. iLEXANDER ^ ^^^^^ considcr this case, then, as if the lease had been I * 398 I taken in the name of MKnight, and then the question is,, whether the subsequent purchase by the intestate, without, notice of the registry of the plaintiff's mortgage, can defeat that mortgage. This point was settled in the case of Johnson V. Stagg, (2 Johns. Rep. 510.) The registry of a mortgage is, of itself, notice, in law, to all subsequent purchasers, as well as mortgagees ; and they are bound, at their peril, to consult the registry. A contrary doctrine would shake the. foundation of all mortgage security, and lead to every species of fraud. It is, clearly, not the doctrine of the statute,' which declares, that " no mortgage, nor any deed, conveyance;' or writing in the nature of a mortgage, shall defeat or prejudice the title or interest of any bona fide purchaser, &c., unless the same shall have been duly registered." If thiss paragraph does not mean that a mortgage, duly registered, shall be preferred to a subsequent bona fide deed without notice, it is senseless and idle, and worse than idle — it is delusive, and a snare to the unwary. No decisions of the. English Courts, upon the English registry acts, in which there is any variation in the language of the provision, could induce me to change my opinion on the construction of our statute. I had occasion, lately, in the cause oi Frost t^r.fe. p. 2S3 V. Beekman,-f to express this same opinion; and with me the point is absolutely at rest. In this case, and for the purpose of this decision, I con- sider what ought to be done as done, and, consequently, that M' Knight had a legal estate to support his mortgage to the plaintiff. But if the intestate had acted as he did, without any instructions from the plaintiff, and so as to reduce the interest of M^Knight to a mere equitable estate at the time, that he gave the mortgage to the plaintiff, and at the time that he gave the deed to the intestate, I think the better opinion is, that the registry of such equitable mortgage, or f * 399 ] *encumbrance, is notice to the subsequent purchaser of the legal estate. The statute I have cited speaks of any " writing in the nature of a mortgage," and these words may reach to any agreement creating an equitable encumbrance. The design of the statute was, that every purchaser should look to the registry of mortgages, and see whether there was any mortgage, or any writing in the nature of a mortgage, previously executed by the grantor. Lord Hardibicke said, in Hine v. Dodd, (2 Atlc. 275.) that the register act of ^ Anne, c. 20., was notice to all the world, but that the Courts had broken in upon the statute in cases of fraud, 314 ALEXANnKB CASES IN CHANCERY. 399 iiid some of the latest and best writers on the subject ( Cruise's 1815. Digest, vol. 4. 348. Sug. L. of Fend. 3d Lond. edit. ..^^s.,-^ 524 — 8.) admit, that the true construction of the register Parkist acts is to render the registry, even of an equitable encum- brance, notice to all persons, and that the purchaser ought to search, or be bound by the notice. But the decisions, on the subject of tacking one lien to another, as in the cases of Bedford v. Bacchus, and of IVrightson v. Hudson, (3 Eq. Cas. Abr. 615. pi. 12. 609. pi. 7.) are considered, in England, as having given a different construction to the registry acts. This doctrine of tacking has, however, been adjudged, and finally settled, with us, {Grant v. U. S. Bank, 1 Caines's Cas. in Error, 112.) not to apply between registered mortgages; and the force of these decisions is no longer to be regarded. The case of Morecock v. Dickens, {Amb. 678.) decided by I^ord Camden, in 1768, is considered as the leading and decisive authority against the doctrine of constructive notice arising from the registry of a " writing in the nature of a mortgage ;" and he seems to ground his opinion wholly upon the case of Bedford v. Bacchus ; but he manifests, at the same time, a strong reluctance to be bound by such a doctrine. In that case it had been agreed, by deed, between Morecock and Wilson, that a lease of lands to Wilson should stand as a security for 800Z. ; and this deed containing the agreement, was duly registered *under t^e [ * 400 Stat, of 7 Anne. Wihon, afterwards, mortgaged the lands to Dickens for 800Z.,, and delivered him the lease ; but Dickens, at that time, had no notice of Morecock's deed. Wilson became bankrupt, and Morecock filed his bill to be paid the money in preference of the mortgage to Dickens. The question was, whether Dickens, who had got the legal interest, was to be affected with constructive notice arising from the registry of Morecock's deed ? and Lord Camden said, that he considered himself bound by the decision of Bedford v. Bacchus; that a thousand neglects to search had been occasioned by that decision, and, therefore, he could not take upon him to alter it ; that if this was a new question, he should have had his doubts, and that it was- a serious question whether a Court of equity should not say that, in all cases of registry, a subsequent purchaser ought to search, or be bound by the registry. Mr. Sugden says that this decision seems hardly recon- cilable with the general principles of equity, and that it was founded on a mistaken application of the case of Bedford V. Bacchus. But when we consider that the principle of that prior decision is done away with us, and that except this of Lord Camden, and those relating to tacking encum- brances, we have no decisions on the point, and nothing 315 Alexa.ndee. too CASE8 IN CHANCERY. • 1815. ^^^ some extra-judicial dicta, (1 Schoale fy Lefroy, 90. I'ST ^.^>—^,y-'„^ — 160, 161.) I think we are at liberty to give our registry Parkist act such a construction as will best accord with the obvious dictates of its policy. If the plaintiff's claim was, then, to be considered as resting upon a mere equitable mortgage, I should still be of opinion that the registry of that mort- gage gave it a preference to the subsequent legal title of the intestate. I shall, accordingly, give to the defendant, Catharine M. Alexander, as administratrix and guardian, &c., the election, either, within 30 dhys, to assign over to the plaintiff the lease taken in the name of the intestate, or to discharge the mortgage debt, with the costs of the foreclosure ; and, in [ * 401 ] default of *making such election, that the lease be assigned by her, as administratrix and guardian aforesaid ; and that, in either case, she pay the costs of this suit. The following decree was entered : " That Catharine 31. Alexander, one of the above defend- ants, as administratrix of the goods, chattels, and credits of William Alexander, deceased, and guardian to the other defendants, excepting Alexander 31'Knight, within thirty days after being served with a copy of this decree, make her election, either to assign over to the plaintiff, and to his heirs, by an instrument valid in law, all the right, title and interest of the said William Alexander, at the time of his ; death, of, in, or to the lease mentioned in the pleadings in the above cause, bearing date on or about the first day of January, in the year of our Lord one thousand eight hundred and ten, and taken by the said William Alexander, deceased, in his own name, and given for town lot No. 4. in First street, in the village of Little Falls, and accompany the said assign- ment with actual delivery of the lease, or to pay to the plaintiff the principal and interest due on the bond and mort- gage mentioned in the said pleadings, and. executed by Alex- ander M' Knight, one of the defendants, to the plaintiff, and bearing date the sixth day of May, in the year of our Lord one thousand eight hundred and eight, together with ne- cessary costs and expenses of the plaintiff, accrued in ad- vertising and selling the lot under a power contained in the said mortgage ; and, in case the said Catharine M. Alexander shall, within that time, elect to discharge the mortgage debt land costs as aforesaid, and shall signify her election in writ- ing, subscribed by her, or her solicitor, or counsel, and served on the plaintiff, his solicitor, or counsel, or filed in the register's office, it is further ordered, that it then be referred to one of the masters of this Court, residing in Al' bany, Oneida, or Herkimer counties, to ascertain and report 316 • USES IN CHANCERY 401 with al convenient speed, the amount of such principal and 1815. ^interest and expenses as aforesaid; and that upon confir- \.^^~~s/^>»^' mation of such report, the same be paid ; and if no such elec- Reigai, tion be made within the time aforesaid, it is further ordered, wood. adjudged and decreed, that the said Catharine M. Alexander, r * 4Q2 1 immediately after the expiration of the said thirty days, as- sign and deliver the lease as aforesaid. And it is further ordered, adjudged and decreed, that, in either case, the said Catharine 31. Alexander pay to the plaintiff his costs of this suit, to be taxed." A C. F. & G. Reigal against Wood and others. Equity grants relief, not only against deeds, writings, and solemn as- surances, but against judgments and decrees, obtained by fraud and imposition. Wheje an attorney revived, by scire facias, an old outstanding judg- ment, on which but a very small sum, if any thing, was due, and knowing that the land on which the judgment remained a lien, was in the possession of innocent and bona fide purchasers ; and after- wards made use of the judgment to compel the purchasers, who were ignorant of the proceedings under the scire facias, to pay and secure to him a debt he claimed against the person under whom they had purchased ; this Court, on the ground of imposition and undue advantage taken by the attorney, ordered him to refund the money he had so obtained, and set aside the securities he had taken, with costs. THE bill, which was for an injunction, stated, that on the ApjUUin. 23d o( January, 1801, the plaintiffs purchased of John Smith 200 acres of land, in lot No. 54., in the township of ManZiws, for 1,900 dollars. That the land was then subject to a mortgage by Smith to Michael Myers, for 800 dollars, which the plain- tiffs paid to Myers, who agreed that the mortgage might re- main for their use, and to secure their title. The plain- tiffs took possession of the land, which they divided equally between them. That, in June, 1810, the plaintiffs were in- formed that Thaddeus M. Wood, defendant, had *caused the [ * 403 land to be sold, at the sheriff's sale, under a judgment in the name of Daniel Avery, (defendant,) against John Smith and Aaron Wood, obtained 13 or 14 years ago, in the Onondaga Court of Common Pleas, on a promissory note for sixty dollars, for goods sold by Avery, as trustee to one Dickhout, an absconding debtor. That the defendants, T. M. Wood and George Hall, purchased the land at the sheriff's sale. 317 403 C ASES IN CHANCERY. 1815. That the plaintiffs applied to Wood on the subject, who, at • «.^-^,— .»^ first, agreed to accept 40 dollars on the judgtnent, and re- Reigai lease the purchase, but afterwards demanded payment of Wood another judgment against John Smith, in favor of Peter Smith, for 300 dollars, which Wood alone, or in conjunction with two of the defendants, Isaac and John Delamater, had before purchased of Peter Smith. That the plaintiffs, through ignorance, yielded to the terms demanded, and gave Wood their bonds and mortgages on the premises, for 308 dollars, payable in a short time, with interest. The sum being divided into four equal parts, for which four bonds were given, and Wood and Hall released their claim to the land to each of the plaintiffs separately. That, afterwards,, on investigation, the plaintiffs found that John Smith, after the judgment against him, in favor of Avery, had paid the amount of the judgment to John Rappelye, the creditor who had instituted the proceedings against Dickhout, and had paid, in boards, the costs to Wood. That Wood, in order to overreach the purchase of the land by the plaintiffs, had caused the judgment to be revived by scire facias, without the knowledge or consent of Avery or Rappelye ; and that John Smith, being insolvent, aged, and having removed out of the county, did not attend to the suit. That the judgment of Peter Smith was assigned as above mentioned, with an express agreement that the land of the plaintiffs should not be affected by it, and made solely for the purpose of securing and protecting another piece of land claimed by Wood and the Delamaters. That on the revival of the judgment by the scire facias, Wood well knew of the purchase of the [ * 404 ] *land by the plaintiffs, and their settlement thereon : that the plaintiff, Frederick Reigal, has paid off his mortgage to Wood; but the other plaintiffs being unable to pay, Wood has advertised their lands for sale, under the mortgage, and also put their bonds in suit. And the plaintiffs prayed for an injunction to stay his proceedings, and for relief, &c. The answer of Thaddeus M. Wood denied all knowledge of the mortgage to Myers, and of the plaintiffs being in pos- session at the time of the sherifTs sale under the judgment. This defendant also stated, that a judgment was obtained in January, 1789, against John Smith and A. Wood, on notes given to Avery and James Bennett, for 67 dollars and 90 cents damages, and 20 dollars and 81 cents costs. That, ou the 25th of February, 1800, Smith paid 64 dollars on the judgment, and no more. That, in November, \8Q1,b. scire facias was issued to revive the judgment, which was served personally on Smith, who appeared by attorney, and pleaded payment; and, on a trial, in September, 1809, a verdict was found for the plaintiff for 88 dollars and 77 cents, on which a 818 CASES J M CHANCERY. 1^4 judgment was docketed the 17th of November, 1809, and 1813. the costs taxed at 29 dollars and 63 cents. That, in April, x,^-^,--^^- i810, a.fi. fa. was issued on the judgmen^i and, on the 2d of Reioal June, 1810, the lot No. 54.'in Manilas, was sold at the sher- vvood. rff's sale to the defendant, flaZ/, who bid for the defendant, Wood, for the sum of two dollars, and a deed was executed to Hall and Wood. That, on the 10th oi June, 1810, some of the plaintiffs called on Wood, and informed him that they were in possession of the lot, and requested information, which he gave them, and referred them to the records. That they, afterwards, said that they were satisfied that the de- fendant. Wood, could hold the land under his purchase. That, at the request of the plaintiffs, he released the land to them, for the balance due on the judgment against Smith and Wood, the costs of the sci. fa., and his charges for attending the sale and drawing the bonds and mortgages, recording, &c., amounting to 108 dollars, including sheriffs fees, &c., with *the additional sum of 200 dollars, being part of a debt ' * 4.05 ] of 300 dollars, which John Smith owed him. Wood, on his private account, and the plaintiffs gave him their bonds and mortgages for the above amount. That the defendant. Wood, did not pretend to hold the land by virtue of the judgment in favor of Pet/er Smith ; that his offer to release was gratu- itous, considering his title good under the purchase ; and he told the plaintiffs, that he ought to be secured part of his own debt against John Smith, who had become insolvent. That he offered to give up the bonds and mortgages, if the plaintiffs would reconvey the land, and place him and Hall in the situation they were in before. That if John Smith ever paid any thing in boards, it was on his private account, and not on the judgment. John Smith, who was examined as a witness, 77 years of age, and had been blind for the last twelve years, said, that he had paid Wood 64 dollars on the judgment, for which he had a receipt, which he had lost, and, afterwards, paid him the balance, including costs, in boards. He said that the purchase of the plaintiffs, who took possession of the land, and iheir possession, was well known in the vicinity, and the witness told Wood of it before the sheriffs sale ; that he had employed Wood as his attorney in various suits, and paid him all the costs due to him ; that Wood never de- manded payment of any thing until September, 1813; that the sci. fa. was personally served on the witness, who em- ployed I\rman and Sabin, attorneys, to defend the suit, but was never informed of the time of trial, nor did he know of it. George Hail stated, that on the trial of the suit, on scire ^:ias, in 1809, a verdict was taken for the whole amount 319 105 UASES IN CHANCERY. 1815. claimed hy Wood; and a stipulation in writing was giveji, ^_^-^^-«^^ that any receipts which might be produced, of payments on Reigal the judgment against Smith and Wood, should be endorsed 1 Wood. ^n the execution to be issued on the judgment on the scire * 406 1 facias. It appeared, however, from the evidence of *th€ deputy sheriff, that Wood endorsed on the execution de- livered to the sheriff, directions to levy the whole amount, without any deduction. Hall further stated, that he attended the sale, and was resolved to bid up so as to save the debt due him and Wood; that Wood mentioned, at the sale, that Smith had; conveyed the land to some persons, but he did not know who they were. He remembered that Smith paid Wooi some account in boards ; that Wood told the plaintiffs he could hold the land on the purchase at the sheriff's sale, but he only wanted to make himself whole against John Smith. • Sabin, who was attorney for Smith, stated, that Smith, in 1808, being poor and blind, removed to Herkimer; that he wrote to him concerning the scire facias, and Smith answer- ed that the judgment had been paid ; that he was old apd poor, and it would not avail him to attend to it. Gold, for the plaintiffs. Kirkland, for the defendants. The Chancellor. It appears to me, from a view of all the facts and circumstances attending this case, that I am bound to consider the judgment upon the scire facias'as un- duly obtained, and that the defendant cannot, in justice and good conscierice, be permitted to hold any advantage which he may have obtained under it. It is a well-settled princi- , pie, in this Court, that relief is to be obtained not only against writings, deeds, and the most solemn assurances, but against judgments and decrees, if obtained by fraud and im- position. (Barnesly v. Powel, 1 Ves. 120. 284. 289.) Wood, the principal defendant, admits, in his answer, that when he undertook to revive the judgment of Avery &/■ Ben- net v. Smith &/■ Wood, there was but 3 dollars 96 cents of the debt due. His object, certainly, was not that small balance; and it does not even appear that, as to that sum, he had any I * 407 ] *direction to issue the scire facias, from the persons in whose names it was issued, or to whom the money was due. It is evident his object was to secure another and larger demand against Smith, totally unconnected with the judgment, and that, as Smith was iijsolvent, as well as old, blind, and help- less, he sought to secure this demand by a contrivance cal- culated to defeat the title of the unsuspecting purchasers 320 iJASES IN C-HANCERY. 407 holding lands under Smith. It is in proof, that he knew 1815. that Smith had conveyed his interest in lot 54, in Manlius, s^^i^v^-.,^ to third persons; and the inference is irresistible, from his Reigaj. frequent intercourse with that town, that he knew that the woo^. land was in the actual occupation of the purchasers, and had received large and valuable improvements. No notice, however, is given to them, as ter-tenants, of the scire facias. We have reason to presume it was intentionally avoided ; and he is content with a service of the writ on that very old and blind pauper, vvho had neither interest nor disposition to , take care of the suit, and who, about that time, had^ gone or removed to a distant county. A verdict is, accordingly, obtained upon the scire facias, without any opposition from Smith's uninstructed counsel, for the whole amount of the original judgment, though he knew, at the time, that it had long before been nearly, if not entirely discharged. He is- sues his execution, and directs the whole of the judgment to be levied; and the sheriff, under his direction, sells, not upon the premises, but in another town, all the lands of the present plaintiffs, and which had cost them, eight years be- fore, near 2,000 dollars. This sale, as well as the previous proceedings, was unknown to the plaintiffs, and the lands were bid off by a partner of Wood, for his use, at a nominal sum. This partner says, that he bid to save the debt of him and Wood, and which, as it appears, consisted chiefly of an antiquated account of costs and charges, as attorneys for Smith. Having thus acquired a title, Wood imposes terms upon the plaintiffs, as the previous owners of the land. He insists upon the payment of the principal part of his *demand against Smith, and compels them to redeem their [ * 40y j land by giving him bonds and mortgages to the amount of 308 dollars. Smith denies that any part of that demand is due ; and whether it be so or not, the settlement cannot be binding upon the plaintiffs; for the same imposPtion which attended the judgment, also infected this settlement, as it was made by them, totally uninformed of their rights, and in ignorance of the fraud by which the judgment was procured. I think the weight of evidence is, that the whole of the original judgment, costs as well as debt, had long before been satisfied. Smith testifies that he had paid not only the small balance of the debt, but the certs, in boards ; and another witness {Hall) says, that Wood had the benefit of some boards upon some claim which Wood had against Smith; and in the account exhibited by Wood, in this cause, he gives no credit, and makes no mention of the boards. I am of opinion, tjierefore, that Wood cannot be permitted to acquire and hold any advantage whatever under the judg- ment obtained upon the scirs facias, and that the whole pro- VoL. I. 41 321 4US CASES IN CHANCERY. 1815. Chezse- BKOUGH V, MiLLABD. ceeding was an imposition upon the plaintiffs. I shall, ac cordingly, decree, that the bonds and mortgages mentioned in the pleadings be given up and cancelled, and that the money which has been paid upon one of the bonds and mortgages be refunded, with interest ; and that the defend- ant. Wood, pay the costs of this suit; and that the bill, as to the other defendants, be dismissed without costs. Decree accordingly [ * 409 ] .*Cheksebrough and others against Millard and others. Millard and others against Cheesebrough and others. [See 6 Paige 4S, and post *430.] If a creditor has a lien on two different parcels of land, and another creditor has a subsequent lien on one only of the two parcels, and the prior creditor elects to take his whole demand out of the parcel of land on which the subsequent creditor has his Ken, the latter is en- titled either to have the prior creditor thrown upon the other fund, or to have the prior lien assigned to him, for his benefit. So, if a bond creditor exacts the whole of his demand from one of the sureties, that surety is entitled to be substituted in his place, and to a cession of his rights and securities, as if he were a purchaser, either against the principal debtor or his co-sureties. And if the prior creditor has put it out of his power to make the cession, it seems, that he will be excluded from so much of his demand as the surety, or subsequent creditor, might have obtained, if the cession could have been made : But if the prior creditor, who has disabled himself from making the assignment, has acted with good faith, and without knowledge of the rights of the other creditor, he is not to be injured by his inability to make the cession; the doctrine of substitution being founded on mere equity and benevolence. Where a bond, payable in two instalments, was secured by a mortgage on a mill, &c.,' and the debtor, afterwards, gave a second mortgage on six other lots of land, specifically, to secure the payment of the first instalment, but without reference to the first mortgage ; and all the parties, afterwards, by an arrangement between them, declared the second instalment paid, and cancelled the first mortgage, leaving the second mortgage to remain as security for the first instalment ; andat a sale of the six lots, under a subsequent judgment, which was a lien on the equity of redemption, in these lots only,. A. purchased two lots, and B. foiir lots, knowing, at the time, the situation of the mortgage; and B. afterwards purchased the second mortgage, and filed a bill to foreclose : it was held that A. was bound to contrSivte towards the 322 CASES IN CHANCERY. 409 satisfaction of the principal and interest due on the first instalment, 1815 according to the actual relative value of the lots, and not according to ^^^-^ _,J^ the prices for which they were sold at the sheriffs sale. THE following are the material facts on which the con- v. troversy between the parties in the above causes arose,- and Millari.. *will be sufficient to explain the grounds on which the decis- ^ ' ' ion of the Court turned, without a minute detail of the L ■^**^ voluminous pleadings and proofs. On tl^e 22d of December, 1803, Thomas Smith, of Mil- ton, county of Saratoga, executed a bond to Ambrose Mil- lard, (defendant;) and Benajah Millard, for the payment of 3,500 dollars, in two instalments, with interest ; and to secure the payments, he, at the same time, executed a mortgage on certain mill property, in Balhton. Afterwards, on the 17th of March, 1804, Smith, as collateral security for the payment of the first instalment, and the interest on the bond, executed a second mortgage, on six lots of land in the village of Waterford, and about which the present controversy arose. The second mortgage recited the bond, and that the mortgage was given for securing the payment of the first instalment, and interest, but made no mention whatever of the first mortgage. By the endorsements on the bonds and mortgages, it appeared, that, on the 8th of June, 1808, Samuel Bacon, and on the 26th of October, 1808, Benjamin Marvin, also became interested in the bond and securities ; and by some arrangemeiits of the parties, Marvin was, at that time, considered as the owner of the first mortgage, and Ambrose Millard, one of the mort- gagees in the first mortgage, as owner of the second mort- gage. Afterwards, on the 12th oi January, 1809, by agree- ment between all the parties concerned in the two mort- gages, Smith was credited on his bond with the payment of the second instalment, and Marvin discharged the first mort- gage ; and the first instalment which was declared to be unpaid, was left to rest for its security on the second mortgage. The chief object of this arrangement appeared to have been to accommodate third persons. Miller and Taylor, who were in- terested in the mill-property. Before this arrangement, however, was made, John Van Schaick and Myndert Van Schaick,jun., (defendants in the first suit,) had, on the 13th of June, 1808, obtained a judgment in the Supreme Court againt Smith, the mortgagor, which bound his equity of re- demption *in the second mortgage ; his interest in the lands * 411 covered by^the first mortgage having been passed away by him. An execution was issued on the judgment of /. and M. Van Schaick, and the lots included in the second mortgage were sold by the sheriff, in January, 1810; and, at the sher- iff's sale, the plaintiffs in the first suit became the purcha- 323 Chekse- BKOUGH 411 CASES IN CHANCERY. 1815. ^'5'''^ of ^^° ^^ ^^^ 'o*-^' ^''■'^ f"'' knowled^, at th** time, of the existence of the second mortgage, and of tiie discharge a( the first mortgage ; the other four lots were purchased by J. and M. Van Schaick, the plaintiffs in the execution. Mir.LABD. Afterwards, on the 7th of December, 1810, John D. P. Douw, (defendant also in the first suit,) as trustee of th»> joint interest of himself and /. and M. Van Schaick, took from Ambrose Millard an assignment of the bond and second • mortgage, in order to be protected against it ; and proceeded to foreclose the mortgage by advertising the sale of the mortgaged premises at auction, under a power of sale con tained in the mortgage. The plaintiffs in the first suit, who were the purchasers of two of the lots, then offered I)ouw and Van Schaick to contribute to the discharge of the second, mortgage, acaording to the relative value of those lots, esti- mated by the sheriffs sale ; but this offer was refused. The plaintiffs in the first suit, as purchasers of the ^^~v..^«»_/ were competent to make, and it was evidently made in good Cheese- faith, and for their mutual convenience, without any inten- v. tion injurious to others. The first mortgage was, therefore, . Mili-aiih. absolutely discharged, and the second mortgage remained binding as a security, for the first instalment; and it cannot now be questioned, or denied, to be a subsisting encumbrance, unless the purchaser, under the judgment, can show some equitable right, arising out of the circumstances of the case, to be protected from its operation. I admit, as a principle of equity, that if a creditor has a lien on two different parcels of land, and another creditor has a lien of a younger date on one of those parcels only, and the prior creditor elects to take his whole demand out of the land on which the junior creditor has a lien, the lat- ter will be entitled, either to have the prior creditor thrown *upon the other fund, or to have the prior lien assigned to ' * 4 1 3 him, and to receive all the aid it can afford him. This is a rule founded in natural justice, and I believe it is recognized in every cultivated system of jurisprudence. In the English law, it is an ordinary case, that if a party has two funds, he shall not, by his election, disappoint another who has one fund only, but the latter shall stand in the place of the former, or compel the former to resort to that fund which can be affected by him only. {Sagitary v. Hyde, 1 Vern. 455. Mills V. Eden, 10 Mod. 488. Attorney- General v. Tyndall, Amh. 614. Aldrich v. Cooper, 8 Ves. 388. 391 — 5. Trimmer v. Bayne, 9 Ves. 209.) The party Uable to be affected by this election, is usually protected by means of substitution. Thus, for instance, if the creditor to a bond exacts his whole demand of one of the sureties, that surety is entitled to be substituted in his place, and to a cession of his rights and securities, as if he was a purchaser, either against the principal debtor or the co-sureties. This doc- trine of substitution,- which is familiar to the civil law, (Dig. 46. 1. 17. and 36. Voet, h. t. s. 27. 29, 30.) and the law of thosd countries in which that system essentially prevails, (Pothier's Traite des Ohlig. n. 275. 280. 427. 519, 520. 522. Kaims's Equity, vol. 1. 122. 124. Hub. Preelec. Inst. lib. 3. tit. 21. n. 8.) is equally well known in the English chance- ry. In the case, ex -parte Crisp, (1 Atk. 133.) Lord Hard- wicke said, that where the surety paid off a debt, he was entitled to have, from the creditor, an assignment of the se- curity, to enable him to obtain satisfaction for what he had paid beyond his proportion ; and in Morgan v. Seymour, (1 Ch. Rep. 64.) the Court decreed that the creditor should issign over his bond to the two sureties, to enable them to 325 413 CASES IN CHANCERY. iyi5. ^'^'P themselves against the principal debtor. To apply; '^rf'-s^'-^^ then, the general principle to the presf nt case, if the first i;nEE5E- mortgage had not been discharged, and the mortgagee had BiiouGH chosen to enforce the payment of the whole first instalment, MiLLARi;. from the lands covered *by the second mortgage, to the loss, r *4]4 ] perhaps, of the lien of the judgment creditor by the con- sumption of the subject, that creditor, and, probably, the purchaser under the judgment, would have been entitled, either to have turned hjm from 'the path he had taken, or to the aid of the first mortgage, to recover a proportional in- % demnity from the other lands covered by that mortgage. But, in this case, the first mortgage is cancelled, and no such recourse can be had-; and the question which arises is, whether the second mortgage can, in such case, be en- forced ? It appears, from some of the authorities to which I have referred, to be well settled, that if the creditor has put it out of his power to make the assignment, he is, in many cases, to be precluded from so much of his demand as the surety, or younger creditor, might have procured, if the cession could have been made. Repellitur ewceptione ceden- darum actionum. And if the judgment creditor, in this case, had given notice to the owner of the first mortgage, before the arrangement and discharge took place, of the, equity which he claimed and expected, I might, probably, have been inclined to have stayed, to a certain extent, the opera- tion of the second mortgage. But there is no evidence, or even ground for presumption, that, either Mamn or Mi7/arrf,. the owners of the mortgages, knew of the existence of the judgment when the arrangement was made and carried into effect. They were not bound to search for the judgment, and the record was no constructive notice to them ; and as this rule of substitution rests on the basis of mere equity and benevolence, the creditor who has thus disabled himself from making it is not to be injured thereby, provided he acted without knowledge of the other's rights, and with good faith and just intention, which is all that equity in such case requires. {Pothier's Traite des Ohlig. No. 520.) " The other debtors and sureties," to adopt the observations of Pothier, " might, as well as the creditor, have taken care of the right of hypothecation which he has lost; they might I * 41 5 ] summon *him to interrupt, at their risk, the third purchasers, or to oppose the decrees. It is only in the case in which they may have put the creditor in default, that they may complain that he has lost his hypothecation." Nor have Cheesebrough and others any peculiar equity on their part, to entitle them to set up the discharge of the first mortgage as an equitable bar to contribution. They came in as purchasers at the sheriff's sale long after the 326 CASES IN CHANCERY 415 Jischarge had taken place, and with notice of that fact, and of the existence of the second mortgage. They were, ac- cordingly, duly apprized of the condition of the subject which they purchased ; and they had even taken the advice of council, whether the second mortgage was a valid and subsisting encumbrance. And, before the commencement of their suit, they had admitted its validity by ofTering to contribute to its discharge, and actually tendering in money what they deemed their just proportion. Under all these circumstances, they have no equity as against the second mortgage ; and I am of opinion, on every view of the point, that the mortgage is not discharged, and that the owner of it is entitled to have it satisfied out of the lots which it ori- ginally covered. •2. The rule of contribution between the parties, as owners of the different lots, must be the actual relative value of the lots, and this value is to be ascertained by the testimony of witnesses, in preference to estimating it by the price at which they were respectively purchased at the sheriffs sale. Such sales are by no means a sure and certain test of value ; and I see no good reason why we should depart from the better standard, and adopt this precarious one, which is liable to constant variation, and must depend, in a great measure, upon contingencies. The object of the principle of contri- bution is equality in the support of a common burden, and the law upon this point, as Lord CoJce observed in Sir JVm. Harbert's case, is " grounded upon great equity ;" and equity has a regard to the true value, and not one depending upon ♦contingency and speculation. The rumor prevailing at the sale, that the lots might be affected by some voluntary conveyances of the original mortgagor, has been urged as a reason for taking, in this instance, the auction price ; but I do not perceive the force of the argument. The rumor, it is to be presumed, affected, in equal proportion, the price of all the lots, and leaves the general rule just as applicable as before. I shall, accordingly, as the best evi- dence of value, adopt the relative valuations made by the witnesses, J. Van SchoonJioven and Mandeville, and which is as follows, viz : Lot No. 133 # 700 134 2,500 135 300 138 550 139 400 140 300 A reference must, therefore, be made to a master, to com- pute the sum due from the plaintiffs, Cheesehrough and 327 1815. Cheese- BEOUGH V. Millard L*4!e I 416 CASES IN CHANCERY. 1815 others, as purchasers of lots No. 134. and 139, on this ratio , .<»--,,— »i.^ of contribution towards satisfaction of the principal and in- Nicholson terest due on the first instalment of the bond, and also, the "■ costs of advertising under the power contained in the said mortgage. The question of costs, in these suits, is reserved until the coming in of that report. Decree accordingly f*417] *NiCHOLSON against IIalsey and others. Where the legal and equitable estates in land, being co-extensive, unite in the same person, the equitable is merged in tlie legal estate, which descends according to the rules of law. Thus, if the legal estate in fee descend, ex parte matema, and the ejui- tahle estate in fee, ex parte patema, the equitable estate is merged in the legal, and both go in the line of descent of the legal estate. As where A., having paid money for the purchase of land, died before any conveyance was made, and B., afteryvards, took a conveyance of the land, in trust, for the infant daughter of A., to whom he, after- wards, 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. Where a deed has been duly executed and delivered, a subsequent sur- render, or destruction of it, will not devest the estate conveyed by it ApHi ]5ti,, THOMAS NICHOLSON, (the brother of the' plaintiff, John,) and John Cantine, now deceased, made a joint loca- tion on 4,132 acres of land in the township of Cherming ; and before they obtained the patent, Nicholson died, the 4th of January, 1792. A patent was, afterwards, issued to Can- tine for the lot No. 122, containing 4,000 acres, one moiety of which he held as trustee for the heirs of Thomas Nichol- son, deceased, who died intestate, without issue, leaving'his wife Rebecca, enseint of a female child, born in May, 1792, and named Eliza Bradner. Before the 19th of November, 1792, Cantine, by an agreement with the widow, conveyed to her infant daughter, Eliza Bradner, in fee, two parcels of 1,640 acres, and 410 acres, making together about one half of the lot so held in trust by him. By the advice of John Nicholson, father of Thomas Nicholson, deceased, and of Benoni Bradner, father of his wife, and with her consent, the deed was given up to Cantine, and is lost or destroyed ,■ and, instead thereof, Cantine, on the 19th of Nommier I * 418 ] 1792, conveyed to the infant daughter, in fee, for *the 328 Halsev. CASES IN CHANCERY. 41& consideration of 750 dollars, 1,640 acres, part of lot No. 1£15. 12-2, in Chemung; and on the same day conveyed to the v_rf»-^^--«w> Widow 410 acres, parcel of the same lot, in fee, for the con- NicHor.son sideration of 250 dollars. The widow of T. iV., deceased, intermarried with Z. Halsey, by whom she has had five children, all infants, and who are made defendants by their guardian. The infant daughter of T. N. died the 29th of January, 1811, intestate, and without issue, leaving the plaintiff, her eldest uncle, in the paternal line, and, as he alleged in his bill, entitled by right to the inheritance of the said Eliza B., deceased. The plaintiff stated, that he apprehended that, in consequence of the irregular proceeding of Cantine, the plaintiff's succession to the estate was im- peded, and that the same may have descended at law to the children of Rebecca, by her second husband, being the brothers and sisters of the infant Eliza, deceased, of the half- blood. That Thomas Nicholson, in his lifetime, purchased of one Bell, lot No. 26, in Romulus, containing 600 acres, for which he paid 150 dollars, and took a conveyance in fee ; that Bell, having afterwards sold the lot to Wm. Thompson, and a dispute arising between the infant Eliza and Thomp- son, as to the land, Thompson, for the consideration of 100 dollars, executed a release to her of all his claim to the lot The plaintiff charged that the wife of T. N. received of the personal estate of her husband 1,500 dollars, a sum beyond all the property she brought on her marriage. The defendants, in their answers, alleged, that the lands in Chemung, and the lot in Romulus, were purchased with the proper money of Rebecca, the wife of T. Nicholson, advanced to her by her father, before her marriage, and not with the property of her husbaad, who left no estate, except a bond of 400 dollars ; that the substituted deeds were given in order that she might have a part, and under a verbal promise of indemnity to Cantine ; and they insisted, that, notwithstanding those deeds, the infant daughter of T. N. continued seised in fee of the whole 2,050 acres, and that the inheritance de- scended *wholIy to her brothers and sisters of the half-blood. [*4I9 That two of the Onondaga commissioners, on the 10th of September, 1800, adjudged that the title in lot No. 24, in Romulus, was in the infant Eliza- B. Nicholson. That the lot was granted to one Sampson, a soldier, the 9th of July, 1790, who sold the lot to Thompson, the 1 4th of December, 1791, who released on the 2d of April, 1799, to the infant. That her father purchased the lot of one Bell, who obtained a conveyance from Sampson, dated the 26th of March, 1784, when Sampson was an infant, and under age; so that the title of Nicholson was not valid in law ; and that B, Bradner purchased the title of Thompson, for the use of the Vol. I. 42 329 419 CASES IN CHANCERY. 1815. infant, and obtained the iward of the commissioners in hei. ...^-N^— ^_- favor. That the debts cf T. Nicholson, at his decease, Nicholson greatly exceeded his estate, and that the widow had never received any thing for what she brought him on her mar riage. Halsey. Gold, for the plaintifli", contended, 1. That Thomas Nich- olson, having paid for a moiety of the lot in Chemung, was entitled to a conveyancfe ; and, on the day of his death, was vested with an equitable estate in such moiety, subject 'o- the same law of descents as a legal estate. (2 Po'cell on Cont. 56. 3 p. Wms. 211. 1 Eq. Cas. Air. 175. pi. 5. 10 Mod. 515. 2 Vern. 679. 2 P. Wms. 629 1 Vem. 298. 471.) 2. That if moneys, as alleged, had been advanced to the wife of T. N. by her father, as her marriage portion, they were received, by him, in virtue of his marital rights; and, if vested in the lands in question, created no lien in favor of the widow, but the land descended to the heirs of the hus- band, as though the legal title had been vested in him at the time of purchase. (2 Powell on Cont. 93, 94. 2 Vern. 20. 322. Sugden's Law of Vend. 427. 2 Eq. Cas. Ab. 138. pi. 5.) . 3. That the destruction of the deed to the infant, and the subsequent deeds, were unauthorized, and could not alter or f * 420 ] *change the nature of the intestate's equitable estate, or prejudice the rights of the plaintiff as his heir. 4. That the 100 dollars paid to- Thompson, for his claim, to quiet the title, was not the consideration of an original purchase, and cannot affect the title of T. Nicholson, which, according to the evidence, was a valid legal title ; or, if it were questioned, an issue should be directed to ascertain its validity at law. Henry, contra, contended, 1 . That by the execution of the trust, the legal and equitable titles were united, and the trust merged in the legal estate : and, 2. That the Court will not open the descent, so as to separate the legal and equitable estate, and alter the course of descent. This is an attempt, by a collateral relation, to deprive the half-blood of their right. The father did not die seised, for no legal estate ha^ passed. The state could not be a trustee by implication. No person stood seised in trust for him. After his death the patent for the lot issued, and then Cantine became seised ol the moiety in trUst for the daughter, en ventre sa mere. The trustee conveyed this moiety, w fee, to the infant, the cestuy que trust. She was, then, seised in feej and the fee could not be devested by the destruction of the deed, without he; 330 CASES IN CHANCERY. 420 assent. The subsequent deeds were mere nullities. The 1815. trust was executed by the first conveyance, and the rights of •.^<»-n/^^«-' the daughter were vested and fixed in her as a purchaser ; Nicholsoic and having the estate as a purchaser, and not by descent or halset. gift fi:om her father, there could be no doubt on the case. (Cruiie's Dig. tit. Descent, ch. 3. s. 49, 50. Goodright v, ts.C.svii. Wells, Doug, lll.i) J""-^^- Admitting that the purchase money came from the mater- nal grandfather, yet the defendants would have the superior equity. If not, yet, as heirs, their equity was equal; and having the legal estate, this Court will not disturb them. (2 Vernon, 578.) *As to the lot in Romulus, the deed from Thompson was [ * 42J , direct to Eliza B. Nicholson, who thereby became a purcha- ser. But if Thompson had no title which he could convey, then she took by descent ; and the plaintiff, having a com- plete remedy at law, cannot come to this Court for relief. Gold, in reply, insisted, that Cantine, having received the money, was a trustee in the lifetime of T. Nicholson, and that equities descend as real estates ; that the state could be a trustee, as where a contract was made with the land-office, and part of the purchase money paid before the patent issued ; and a mandamus would lie to compel a conveyance on com- pleting the payment. The equitable estate descended to the infant daughter of T. Nicholson, who was entitled to the deed from Cantine on no other ground than as the heir of her father. The case of Goodright v. Wells was dis- tinguishable from the present. It is impossible to say that the estate is not derived from T. Nicholson. The case is, then, within the spirit and meaning of the fourth canon, in the statute of descents. (3 Cruise's Dig. 401. tit. 29. c. 3. s. 54. 56, 57.) An equitable estate will be supported at law. (3 Johns. Rep. 216. Foote v. Cohin.) This Court has jurisdiction in cases of lost or suppressed deeds; and where the Court has acquired jurisdiction for the purpose of discovery, or otherwise, it will retain the suit, in order to do complete justice between the parties, and to prevent useless litigation. {Coop. Eq. PI. 28. 2 Johns. Cas. 424.) The Chancellor. This is a claim to the inheritance made by the paternal uncle of Eliza B. Nicholson, against her brothers and sisters of the half-blood. The statute of descents says, that brothers and sisters of the half blood shall inherit equally with those of the whole blood, unless the inheritance come by descent, devise, or gift, of some ancestor of the person dying seised, in which 331 422* CASES IN CHANCERY. 1815. *case all who are not of the blood of such ancestor are v.,<»-x^-«w excluded. Nicholson EUza B. Nicholson died in infancy, seised in fee of a fiALSEv, moiety of 4,000 acres of land in Chemung, and of the whole of lot No. 24, in Romulus. The testimony is conclusive, that John Cantine, in his lifetime, conveyed to her the moiety of the Chem^ung lands,; This conveyance was afterwards delivered back to Cantine, by her mother, and new deeds taken to the infant and her mother, of the same lands, in separate and unequal portions The first deed is supposed to have been destroyed after it was delivered up, and it cannot now be found. This subse- quent surrender and destruction of that deed could not de- vest the infant of the estate of which she was seised under that deed, and she must have transmitted, by descent, her interest in the same, unimpaired, to her heirs at law. This is a clear and undeniable proposition ; and as she is to be considered as having acquired the legal estate by purchase,' the question is, whether this Court can now, in aid of the lieir, ex parte paterna, take notice of the equitable title to those lands which she inherited from her father, and which was afterwards united with the legal estate by. means of the conveyance from Cantinel It may be laid down as a settled principle, that when the legal and equitable estates (being co-extensive) unite in the same person, the equi- table estate is merged in the legal, and may be said no longer to exist for the purpose of being recognized and acted, upon by this Court. The legal estate is left to prevaif according to the rules of law. The existence and truth of this principle has been frequently declared, both in Courts of law and equity. Thus, in Goodright v. Wells, (:Doug.ni:Y it was acknowledged,, that if the legal interest desceiiff in fee, ex parte materna_ and the equitable interest in fee, ex parte paterna, the equitable estate merges in the legal, and both follow the line through which the legal estate descends ; and the Court held, that after such union, the legal [ • 423 ] *and equitable estates should not open on the death of the person so seised, and be severed for the claim of different heirs. The judges paid, there was no such case in law oi equity, and there was no reason for it ; for- the moment both estates met in the same person, there was an end of the trust, as a man could not be a trustee for himself. And, to use the language of Lord Mansfield, " why should the estates open at his death ? What equity has one set of heirs more than the other ? The legal estate draws the trust after it, and thf. latter is not to be revived so as to make the heir at law ot one denomination a trustee for the heir at law of another denomination, who would have taken the equitable estatei 332 CASES IN CHANCERY. i^l if timt and the legal estate had not united. There is no 1815. room for chancery to interpose, and the rule of law must s_^-n^-*_. prevail." NicHor.son T^ case of Doc v. Putt, cited from the C. B., was con- iiALSEt. sidered by the K. B. as having established the same doc- trine, and to have ruled that the cestuy que trust, taking the legal estate from the trustee, as a purchaser, thereby altered the course of descent. The principle advanced in the case from Douglas's Rep. was aiterwards sanctioned by Lord Thurlow, in Wade v. Paget, (1 Bro. 364.) and by the master of the rolls, in Philips v. Brydges, (3 Ves. 126, 127.) and again, in Selby v. Alston ; (3 Ves. 339.) this last case arose on a bill by the paternal heir, claiming the estate as heir of the equitable title, against the heir on the maternal side, who was in possession, and claimed as the heir to the legal estate. The case is much in point, and presses strongly on the one before us. The Court there held, that after the union of the equitable and legal estates in the same ancestor, the former was absorbed and gone ; and the bill was dismissed because the paternal heir had no equity. The plaintiff, then, under the authority of these cases, and the principle which they so clearly and so rationally estab- lish, has no claim to the assistance of the Court in respect to the Chemung^ lands. There can be no doubt that the *infant cestuy que trust, by means of the conveyance from j^ * 424 j Cantine, the trustee, took the legal estate as purchaser : and, consequently, if the legal and equitable estate, so united by that purchase, were not, afterwards, severed and revived by her own act, and cannot be considered as opening at her death, she must have transmitted the entire inheritance by descent to her brothers and sisters of the half-blood. With respect to the military lot, a single observation ap- pears to me to be sufficient. If the title to the lot was in Thompson when he conveyed to the infant, she took as a purchaser, and the title descended to the defendants, as her heirs at law. But if the title was not in him, and had been previously acquired by her father, then she took by descent, and the plaintiff has a clear title at law, as. her heir, to the exclusion of the half-blood, and :.here is no cause shown for calling in the extraordinary aid of this Court. There is no allegation in the bill of any special ground for coming here to assert a dry legal title. In every view which I have been able to take of this case, I think the plaintiff fails ; and his bill must be' dismissed, with costs Bill dismissed. 333 425* CASES IN CH ^.NCERY, 1815. Stevens *Stevens and Others against Cooper and others COOPEK. jt Cooper and others against Stevens and others . rDistinguislied, 4 Johns. Ch. 77. Followed, 3 Bdw. S30. Commented on, ; , *■ ^ - 1 Sandf. Ch. 429.] Wh&re several lots oi land are mortgaged, the mortgagor, or purchaggi under him, cannot set up a parol agreement, made at the time of the mortgage, that in case the mortgagor sold either of the lotti, the r.ort- gagee would release the lot so purchased from the mortgage, on being paid a certain sum, per acre, by the purchaser. Where six separate lots, or parcels of land, were mortgaged, and the mortgagee, afterwards released four of the lots from the mortgage, leaving the original debt to stand charged on the remaining two, it was held that the two lots were chargeable with their ratable propor- tion only of the original debt and interest, according to the relatiifb value of the six lots at the date of the mortgage Where land is charged with a burden, each part ought to bear no more than its due proportion of the charge ; and equity will compel each part to a just contribution. Ahd a creditor cannot, by any assign- ment or act of his, deprive the co-debtors, or owners of the land, Qf their right of contribution against each other. ' April ziiJ . THE original bill, which was filed April 7th, 1807 stated, that on the 16th of March, 1795, William Coopei conveyed to John Richardson lot No. 98, in Tully; lol No. 88, in Brutus ; lot No. 82, in Camillus ; lot No. 29, in Ulysses; lot No. 72, in Sempronius ; and lot No. 46, in Dryden ; being 2,900 acres of land, for the consideration of 2,-300 pounds, for which a bond and mortgage were given. That, at the time of purchase, it was agreed by Cooper, that on a sale of any of the lots, by Richardson, and the pur- chaser paying to Cooper, at the rate of two dollars per acre, with interest, he would release such lot from the mortgage; that Richardson sold lot No. 82, in Camillus, to William Stevens, who paid to him a sum of money above the two dollars per acre, which he was to pay to Cooper, to whom he made known the purchase and terms of sale, and who recogniz- [ * 426 ] ed *the agreement with Richardson, and promised to release the lot on receiving payment of the two dollars per acre ; that Stevens, and others under him, made valuable improve- ments on the lot, and died March 1st, 1801, leaving the plaintiffs, his widow and children, and heirs at law. On the 20th of July, 1801, the plaintiffs paid to Cooper 600 dollars, who promised to apply it, exclusively, to lot 82, in Camilhs, and gave a receipt accordingly. That the mortgage was transferred to Abij ah Hammond ; that Richardson, after he sold the lot to Stevens, sold lots 98, 88, 29, and 46, above mentioned ; and, in pursuance of the original agreement, obtamed from Cooper a release of these lots from the mort- 334 yjASKii IN CHANCERY. 426 {jage, on giving him a bond and warrant of attorney to 1815. confess judgment thereon, for the amount due, at two •.„<»-%,— ^.^ dollars per acre, and which bond and warrant were received Stetens in discharge of so much of the mortgage. This release, coj^per. which was executed the 24th of October, 1797, stated the mortgage, and that Richardson, being desirous to have part ' of the lots released from the mortgage, had offered ample security ; and as it was reasonable, he, Cooper, in consideration of the security, did release, &.C., reserving the mortgEige in full force against the other two lots, 72 and 82 ; that, at the time judgment was entered upon the bond, Richardson was possessed of sufficient property to satisfy it ; and a failure to collect the amount was owing to the indulgence of Cooper ; that the plaintiffs have since tendered to Cooper, and to Hammond, the residue of the money due on lot 82, at two dollars per acre, if they would discharge the mort- gage, which they refused to do, and have since proceeded to advertise the lot for sale, under the mortgage, &c. Cooper, in his answer, dated the 21st of April, 1808, denied the parol agreement, stated in the bill, between him and Richardson. He alleged, that lot 82 was far more valuable than the other lots ; that, before he made the assignment to Hammond,he would have been willing to have received from Stevens such part of the bond and mortgage as *would have been proportionate to the value of lot 82, [ * 427 ! and to have released the mortgage thereon, and may have so far promised : he admitted the release of the four lots, but denied that it was given under the pretended parol agreement; that, on the 21st of JmZj/, 1801, after the assign- ment to Hammond, which was for 7,500 dollars, the plaintiffs paid him 600 dollars, and he gave a receipt, stating that it was " for interest due on lot 82, in Camillus, mortgaged by him to Richardson, and since assigned, in part, to ji. Ham- mond; of which sum, he paid over to A. Hammond," 550 dollars. Hammond, in his answer, denied any knowledge of the agreement, but admitted that, at the time of the assignment to him, he understood that Richardson had sold the four lots, and that Cooper had released them from the mortgage. The cross bill, filed the IQth of May, 1809, prayed that the heirs, &c. of Stevens might be decreed to pay the 2,320 pounds, and interest, due on the mortgage, or that the lots 82 and 72 might be decreed to be sold, &c. Richardson, in his ansioer, set up the parol agreement, and stated that Cooper released the four lots, on Richardson's paying at the rate of two dollars per acre, pursuant to the agreement. The other defendants also set up the same parol agreement as stated in the original bill. 335 127 CASES IN CHANCERY. 1815. ^^^ parol agreement stated to have been made ut the - .<^-N/--«»-- time of giving the mortgage, was proved by several witnesges Stevens on the part of the plaintiffs. V. Van Vechten, for the plaintiffs, contended, that the parol agreement was valid, as against Cooper and Hammond. It did not contradict the mortgage, vvhich, moreover, was an interest of a personal nature, being a mere incident of the debt. {Newland on Cont. 197. Rob. on Frauds, 274. 3 Johns. Cas. 322.) Hammond took the mortgage subject to all equity existing between the original parties; {Sugden's Law of Vtnd, [*428] *467. 2 Johns. Rep. 595. 4 Vesey,jun. 118. 289. 9 Vesey, 264..) Cooper was his agent, aiiA he must be regarded as a purchaser with notice. (2 Fonbl. 158. s. 4.) Again, Cooper knew of the sale of the lot to Stevens, and had no right to discharge the mortgage from the four lots, and leave the whole debt .charged on the other two ; the lot sold to Stevens, at most, would be liable only to contribute its proportion of the original debt. (5 Vin. Ahr. 561. (A.) pi. 4. 6. 13. 18, 19. 23, 24, 25. 27. 3 Co. 12. Res. 2. 2 Pothier, 18. 3 P. Wms. 98. 1 Ch. Cas. 271. 2 Vem. 117.) At any rate, the plaintiffs ought to be exonerated from the mortgage, on paying two dollars per acre, with interest. Henry, contra, contended, that evidence of the parol agreement was inadmissible, for it was contradictory to the deed, of mortgage. By that deed, each lot was bound for the whole debt. The agreement makes each lot answerablo only pro rata, and thereby substantially varies the written deed. He, then, entered into a minute examination of the parol proof, and contended, that it was contradictory and uncer- tain, and showed how important it was to adhere to the established rule of evidence, which precluded the admission of parol evidence to vary a written instrument. The Chancellor. 1. The plaintiffs in the original suit seek to avail themselves of a parol agreement, alleged to have been made between the parties to the mortgage at the time it was executed, by which each lot was to be bound only for a ratable proportion of the mortgage debt. The mortgage in this, as in ordinary cases, bound every part and parcel of the mortgaged premises for the entire debt ; and if such a parol agreement, as is charged, can be proved and set .up, it goes to vary, essentially, the operation of the mortgage deed. 336 Cooper. CASES IN CHANCERY. *429 *This agreement is proved by Richardson, the mortgagor, 1815. as being concurrent with the execution of the mortgage, and v^^^-s,-^^ part of the original agreement. It is as expUcitly denied by Stevens the mortgagee in his answer. Two witnesses, however, prove subsequent conversations with the mortgagee, in which the agreement was admitted ; but the release executed by Cooper to Richardson, in October, 1797, and accepted by him, is pretty strong evidence that no such agreement was then understood to exist. It is, however, unnecessary to enter into an examina:tion of the weight due to the parol proof, for I am satisfied that the objection, upon the argument, to its admissibility, was well taken. There is no rule of evidence better settled, than that which declares that parol evidence is inadmissible to contradict, or substantially vary, the legal import of a written agreement. Such testimony is not only contrary to the statute of frauds, but to the maxims of the common law ; and the rules of evidence on this, or on most other points, are the same in Courts of law and of equity. (Lake v. • Philips, 1 Ch. Rep. 59. Binstead v. Coleman, Bunb. 65. Parteriche v. Powlet, 2 Atk. 383. Irnham v. Child, 1 Bro. 92. Porimore v. Morris, 2 Bro. 219. Meres v. Ansell, 3 Wils. 275. Preston v. Merceau, 2 Black. Rep. 1249.) The general rule is certainly not to be questioned or disturbed. It ought not to be a subject of discussion. It is as well grounded in reason and policy as it is in authority. Nor does this case come within any exception admitted here to the operation of the rule ; for there is no allegation of fraud, mistake, or surprise, in making or executing the mortgage ; and those, I believe, are the only cases in which parol evidence is admissible in this Court against a contract in writing. (Marquis of Townsend v. Stangroom, 6 Ves. 328. Rich V. Jackson, ib. n.) There is another rule which has some connection with this branch of the law of evidence, and which will, in certain cases, and on certain terms, admit an agreement in writing, *concerning lands to be discharged by parol. But the [ * 430 ] evidence in such cases is good only as a defence to a bill for a specific performance, and is totally inadmissible, at law or equity, as a ground to compel a performance in specie. (Sugden, 109 — 114. 3d London edition, where the cases are collected.) And the rule has no sort of application to this case, which sets up a parol agreement as being part of the original agreement, and the professed object of which is to alter, by substantially restricting, the legal effect and operation of the mortgage. 2. The next and only remaining point in this case is, whether the release by the mortgagee, on the 24th of October, Vol. I. 43 337 430 CASES IN CHANCERY. 1815. 1797, of fair of the lots included in tJie mortgage, does not, v^»-v— i^^ in equity, ratably reduce the power of the mortgage, upon Stetehs the remaining lots, inasmuch as it deprives the owners of Cooper. those lots of their right of contribution as against the lots so released. It is a doctrine well established, that when land is charged with a burden, the charge ought to be equal, and one part ought not to bear more than its due proportion ; and equity will preserve this equality by compelling the owner of each part to a just contribution. (Sir Win. Herbert'' s Case, 3 Co. 14. Harris v. Ingleden, 3 F. Wms. 98, 99.) I need not go at lai^ge into this doctrine. It is perfectly well understood ; and I had occasion recently to examine it in the case of t AMI, ■p. mi. Cheesebrough and others \. Van Schaick and others.^ The Court will likewise compel the creditor to aid this right of contribution, by assigning his bonds and securities to the debtor, or surety, or owner of the land, whom he charges with his whole demand, and they will not permit him, voluntarily, to defeat this right. He owes a duty to his debtors, not to impair their rights as against each other. But here the mortgagee has deprived the owners of lot No. 72 and 82 of this recourse, by previously discharging the other lots ; and he ought not, then, in equity, to charge theni' with a greater burden than they would have been subject to [ * 431 ] upon *the principle of contribution, if no such discharge had taken place. This is a clear and fundamental rule of , justice, which must strike, at once, every discerning mind, and which Pothier has illustrated in his Treatise on Obliga- tions, a work which is founded in sound ethics as well as upon the basis of the civil law. {Traite des Oblig. No. 275. 520.) I shall, therefore, direct a reference to a master to ascer- tain the proportion of the principal sum mentioned in the mortgage, with the interest, that would, as between the owners of the several lots, be ratably chargeable upon each of the six lots contained in the mortgage ; and that, in making such apportionment, due regard be had to the relative value of each lot at the date of the mortgage ; and that he take such proof on this point, as the parties may furnish ; and that he further ascertain and report the pro- portion of the debt that lots 72, in Semjpronius, and 82, in Camillus, would be jointly chargeable with upon such appor- tionment ; and this latter sum, with interest, together with the costs of advertising under the mortgage, and after crediting what has been paid by the plaintiffs, is what thej. ought to be decreed to pay, or that the mortgage be foreclosed Decree accordingly. S3S CASES IN CHANCERY. *43!2 1815. *WooDWORTH against Van Buskerk and Slocum. wood worth Van Bus- TIhs Court will not grant an injunction to stay aji action at law, on an kerf award; on the ground that the plaintiff was surprised by the princi- pal witness for the defendants, swearing falsely before the arbitrators, and that he could have proved the falsehood of the testimony, 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 award. The rule is the same in equity as at law, where a new trial will not be granted, merely to give a party, who has gone voluntarily to trial, an opportunity to impeach the testimony of witnesses, of the object of whose evidence he was apprized beforehand. THIS was a bill for an injunction. It set forth an agree- AprUiQik, ment with the defendants, relative to a quantity of timber to be drawn from the lands of the defendants, and rafted to New- York. The plaintiff settled with the defendants for 666 pieces of timber, but the defendants, alleging that the raft contained 1,000 pieces, brought an action against the plaintiff in the Supreme Court, for the difference ; and the parties submitted the matter to the award of three arbitrators. At the hearing before the arbitrators, W. Overacker was the principal witness for the defendants ; the bill alleged that the witness, before his examination, had repeatedly assured the plaintiff that the raft contained 666 pieces only ; but that he falsely deposed before the arbitrators that it contained 1,000 pieces ; and the plaintiff, being surprised by his evidence, requested of the arbitrators to have another hearing, at a future day, when he would prove, by three witnesses who went with the raft, the falsehood of Overacker' s testimony, and offered to enlarge the time for making the award ; but the arbitrators refused to adjourn for a further hearing, and made an award in favor of the defendants, on the evidence of Overacker, for 250 dollars, on which a suit had been brought in the Supreme Court, against the plaintiff. *Vun Vechten, for the plaintiff. . [ * 433 ] The Chancellok. The plaintiff went to a hearing with- out objection, and was willing to rely upon the testimony of Overacker, the principal witness for the defendants. It is a rule at law, on the subject of new trials, that a party going voluntarily to trial, goes at his peril ; and he cannot have a new trial merely to give him an opportunity of impeaching the testimony of a witness of whom he was apprized before- hand, and of the very purpose for which he was to be called. He must, at least, show that h e had since discovered testi- 339 433 CASES IN CHANCERY. 1815. mony of which he had no knowledge before the trial. (2 s^.^-s^-^'^ Johns. Cases, 819. 5 Johns. Rep. 249. 9 Johns. Hep. 78. 1 Parker WUs. 98. 2 Salk. 653. 2 Binney, 582. n.) There is no rea- Ghant ®°" why an award should be set aside on the ground stated, when a verdict cannot ; and that this Court would not re- lieve, in such case, against a verdict, was fully considered in Ante, p. 320. Smith !f Mead v. Lowry.-\ The reason of tlie rule applies equally in each case, and the same mischiefs would follow from relaxing it. The power of awarding new trials at law, is exercised upon hberal and etjuitable grounds, and this consideration renders the rule drawn from the practice of the Courts of law, the more applicable. There is no chancery case, within my knowledge, that approaches to this. Besides, the arbitration bonds would, probably, have run out before the witnesses from Cayuga could have been procured ; and the defendants were not bound to enlarge the time, and the arbitrators had not the power. Injunction denied. [*434] *Parker and Bliss against Grant and others. [Followed, 1 Paige 435.] The 11th rule of June, 1806, allowing the plaintiff to amend his bill, of course, at any time before answer, plea or demurrer filed without costs, does not apply to the case of a bill sworn to by the plaintiff as an in- junction bill. Mm, Jsi PETITION, by the defendants, to have the bill in this cause, which was an injunction bill, and had been amended by the plaintiffs, taken off the files of the Court ; on the ground, that after the injunction had issued, and after the ' defendants' solicitor had given notice of his appearance, but before he had actually entered it with the clerk, or had put in an answer, the plaintiffs had amended the bill in a mate- rial part, without leave or notice, and without the bill having been resworn to. D. Rodman, in support of the petition. Vaji Vechten, contra. The Chancellok. The 11th rule of June, 1806, ought not to be applied to the case of a bill sworn to by the party It would be like a party meddling with, and altering, his own 340 CASES IN CHANCERY 4S . affidavit on file, without leave ; and it would become difficult, 181 5. and, perhaps, impossible, afterwards, to know to what part of the bill the oath was to be applied. The letter of the rule does, undoubtedly, apply to the case, for it is general m its terms ; and for that reason I shall only direct the amendment to be expunged, and shall suffer the costs of this application to abide the event of the suit. Order accordingly. *Diou&LASS and others against Wiggins and another. [*435 iDJuDction lies to prevent a lessee's making material alterations in a dweUing-honse, by changing it into a warehouse, or store, which would produce permanent injury to the building. THIS was a bill for an injunction, to stay waste. It May i9ih. stated, that the defendants had taken a lease of a dwelling- house in Pearl street, in the city of New-York, for four years, from the 1st of May, 1815; that the lease provided, that the defendants were to lay out 300 dollars in improve- ments, to be approved of by the lessors ; that, against the consent of the lessors, the defendants were converting the whole dwelling-house into a store, and were prostrating par- titions, and cutting through the ceilings and floors in the sec- ond and third stories, and fixing a wheel and tackle in the third story, to raise heavy packages, which would be to the great and constant injury of the building, as the timbers in the third story were weak. Anthon, for the plaintiffs, cited Bonnett v. Sadler, 14 Kes. 526. Amh. 209. Anon, and Bacon, tit. Waste, c. 5. The CHANCKixaR. Let the injunction issue. Motion granted. 341 436* CASES IN CHANCERY. 1815. Matter or ltvinoston. 4t.j^ ^j^g matter of Mary Livingston, a lunatic. The custody of a lunatic's person and estate, real and personal, may ba committed to the next of kin, or heir at law, June 5ih, PETITION of Alexander Crofts and Mary his wife, stating, that, on a commission, in nature of a writ de luna- iico inquirendo, Margaret Livingston wafe found a lunatic ; that she is the widow of Robert T. Livingston, deceased, and entitled to real and personal estate ; that the petitioner, Mary, is the only child of the lunatic ; that the lunatic is in a state of deplorable helplessness and lunacy, and has been so for many years, and is now, and has been, since the death of her husband, in 1813, in the care of the petitioners. Prayer, that they may be appointed to the custody of her person and estate. Henry, in support of the petition. H. Bleecker, contra, and on behalf of Philip I. Livingston, uncle of the petitioner, Mary, praying for the custody of the person of the lunatic. The Chancellor. I agree with what was said by Lord Macclesfield, in Dormer's case, (2 P. Wms. 262.) that there is no sufficient reason for the old rule against committing the custody of the person and estate of a lunatic to the heir at law. The rule, in many cases under our statute, would take a child from its parent, which would be most unnatural ; and the rule has been held {ex parte Ludloiv, 2 P. Wms. 638.) not to apply to the next of kin entitled under the stat- ute of distributions to the personal estate. The daughter, in this case, is the most fit person to take charge of an aged [ * 437 ] *and afflicted mother ; and the presumption (if one must be indulged) would be in favor of kinder treatment, and more patient fortitude, from the daughter, than from the collateral kindred. I shall, therefore, direct, that the custody of the person and estate of the lunatic be committed to the peti- tioners, on their giving the requisite security. Rule accordingly, (a) (ffi) Vide ex parte Cocknayne, (7 Vesey,mn. 591.) 342 CASES IN. CHANCERY. 431 1815. Wi^ER, an infant, (by her next friend,) against ^'^^^ Blachly and the Executors of Vail. blachly. The general rule, that all persons whose interests may be affected, by the decree must be made parties, is founded on convenience, and subject to exceptions and modifications, according to the discretion of the Court. Thus, a creditor, or legatee of the personal estate, need only make the personal representatives of 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 will be dispensed with. But on a bill against the executors of a guardian, for a breach of his trust, the testator having, by his will, made the timber on his land assets for the payment of his debts, it was held that the devisee of the real estate ought to be made a party, as the whole estate might be- come responsible to the plaintiff THE bill ii^ this cause was filed against Blachly, the Jum I6th guardian of the plaintiff, and against the executors of Vail, who was a surety for the guardian, for a breach of trust by the guardian, and for an account. The cause coming on to be heard, the counsel for the de- fendants objected to the want of proper parties; that as Vail, the testator, whose estate might be made responsible, had, by his will, rendered the timber growing on his land *assets for the payment of his debts, the devisee of his real [*438 J estate ought, therefore, to be made a party. Riggs, for the plaintiff. Baldwin, contra. The Chancellor suggested some difficulty in deducing, from the books, any precise rule on the question of necessary parties. The general rule, he observed, is, that you must have before the Court all parties whose interests the decree may touch, because they are concerned to resist the demand, and to prevent their fund from being exhausted by col- lusion. In Gifford v. Hart, (1 Schoale &f Lefroy, 386.) it was held, that a decree obtained without making parties those whose rights were affected, was fraudulent and void as to those parties. The same doctrine was declared in the house of lords, in Gore v. Stacpoole, (1 Dow's Rep. 18.) in which it was held, that to make a foreclosure of a mortgage valid against all claimants, not only the tenant for life, bu* the remainder-men for life, and in fee, must be brought be fore the Court, to give them an opportunity of paying off the mortgage, if they thought proper. But the general rule is 34a 438 CASES IN CHANCERY. 1815. not of universal application. A creditor, or legatee of the ■^-'"N/--"**^ personal estate, need not make any but the personal repre- WisER sentative of the debtor a party, for the executor is to sustain Blachly. the person of the testator, and to defend the estate for cred- itors and legatees. (1 Ves. 105. 131. 1 Bro. 303.) Lord Loughborough said, this was an anomalous instance, but later cases have created other exceptions to the general rule. On a bill to foreclose a mortgage, Lord Ahanley. thoughi it in- tolerable to insist that all encumbrances should be brought in; (3 Ves. 314.) and the rule requiring the presence of all parties, is said to be a mere rule of convenience, and to pre- vent the Court from doing business by halves ; and that it is subject to modification and discretion ; and that the Court will [ 439] be *satisfied that a sufficient number of the persons inter- ested are before the Court to sustain the question. In Adair V. The New-River Company, (11 Ves. 429.) this point was much discussed, and it was held that the rule was to be dis- pensed with when extremely difficult ; and that in a suit to estabhsh the right of suit to a mill, the Court only requires parties sufficient to secure a fair contest. The same princi- ple governed in Cullen v. Dulce of Q , (15 Ves. 14. n.) where it was held sufficient to bring in the contractors or directors of a private society ; and, in Cockburn v. Thompson, (16 Ves. 321.) the subject was very difflisively discussed, and numerous instances given of a relaxation of the strict rule, that all persons materially interested must be parties. The rule is to be dispensed Vi^ith where it is impracticable, or very inconvenient, as in the case of a very numerous asso- ciation in a joint concern, which is, in effect, a partnership, and not a corporation. The chancellor, however, inclined to think, that, in this case, the general rule ought to prevail, as there was no ne- cessity pressing against it ; and the counsel for the plaintiff readily consented, upon this intimation, to postpone the hearing, in order to bring in the devisee. 344 CASES IN CHANCERY. 439 1815. TOPPEB V. "OWELL TuppER and another against Powell and others. This Court will not aid a plea of usury, at law, by compelling a discoc ery, unless the debtor, in his bill, tendera the sum actually borrowed, with the lawful interest. He must firet do what is equitable on his part, before he can ask the assistance of a Court of equity. THE bill Stated, that the plaintiffs applied to Powell, one •'"'« WU' of the defendants, to borrow 500 dollars, on a note for that sum, payable in 60 days, made by one of the plaintiffs, and *endorsed by the other ; that Powell agreed to discount the L ^^^ I note, and gave the plaintiffs 400 dollars, in money, and a quantity of indigo, amounting to 70 dollars, retaining the residue, or 30 dollars, as discount. That when the note became due, the plaintiff, in order to obtain a delay of pay- ment, made and endorsed two other notes, for two hundred dollars each, payable sixty days after date, which notes, and 120 dollars in cash, they gave the defendants, who, there- upon, delivered up the note for 500 dollars, thereby receiv- ing another sum beyond lawful interest. That the defend- ants have brought actions at law, on the two notes, against the plaintiffs, who prayed for an injunction to stay the suits at law, and for discovery of the usury charged in the bill, •and for relief generally. The defendants demurred to the bill, 1. Because the bill sought a discovery, from the defendants, of certain usurious transactions charged, and to be relieved against the notes, without offering to pay what appeared, by the bill, to be due for principal and legal interest. 2. That the bill seeks a discovery of matters which, if true, would subject the defendants to a forfeiture of the money due for principal and legal interest. 3. That the bill was informal, in not showing that the Court had jurisdiction, or that the discovery was necessary, or useful to the defendants, for their defence against the suits at law. 4. That the bill contabed no equity, &c. Riggs, in support of the demurrer. T. A. Emmet, contra. The Chancellor. This bill must be dismissed, on the ground that the plaintiffs do not tender the sum really bor- rowed, with the lawful interest. This Court will not aid a plea of usury, at law, by compelling a discovery, unless the Vol. I. 44 345 441* CASES IN CHANCERY. 1815. *debtor will first do what is equitable on his part. Tlie case ,,rf»-s^-i>*^ of Rogers v. Rathhun\ is in point ; and \he fourth section 0/ Demton the statute against usury, requiring a discovery in certain Oenton cases, does not apply to a case like the present. t ArUe, p. 368. Bill dismissed, witn. costs. Denton against Denton. On application for a writ of ne exeat repuhlica, by a wife against bet husband, pending a suit for alimony, &c., her affidavit is admissible, the proceeding being ea;;3arfe, and the wife, in that respect, considered as independent of her husband. A writ of ne exeat may be granted prior to any decree for alimony. And the Court, in marking the writ, will exercise a sound discretion, under the special circumstances of the case, having due regard to the rank of the parties and property of the husband, so as to prevent oppression or extortion. Ji.u 22d. WELLS, in behalf of the defendant, moved that so much { Ante, p,364. of the Order of the 23d February last, in this cause,f as directs the issuing of a writ of ne exeat, be discharged ; and that the bond given in pursuance thereof be given up to be cancelled; and that the defendant have leave to depart from this state, either unconditionally, or upon giying security to return with- in some given time. The motion was accompanied with an affidavit of the de- fendant, denying any intention, before or at any time of the order aforesaid, of leaving the United States for Europe; and that all allegations to the contrary were untrue. That it was, however, now necessary for him to go to Europe, on his private business ; and that his intention (if permitted to de- part) is to return as soon as his business is finished ; and that he has no intention, permanently, to reside out of this state ; "" * 442 ] *that the affidavits, on which the order was made, were, in other respects, untrue. In support of the motion it was urged : 1. That the evidence was incompetent, on which the order was granted, being founded on the affidavit of the plaintiff, the wife of the defendant, and which was held to be inadmissible in Sedgwick v. Watkins ; (1 Ves. jun. 49.) and on the affidavit of B. Tucker, stating merely the infor- mation of a third person, that the defendant intended. tc depart the state. 346 CASES IN CHANCERY. ii'i ' 2. That, admitting the evidence to be competent, it was 1815. not sufficient, inasmuch as it was not stated that the defend- ^-^'-v— ^^ ant intended to leave the state, with intent to avoid the Dehiok decree of this Court, touching the claim for alimony, and as dekton. no aUmony had, as yet, been decreed. Golden, contra. The Chancellor. As the application for a ne exeat is ex parte, and as the wife is permitted to sue her husband in this Court, her affidavit, as plaintiff, is admissible, on the same ground as that of any other plaintiff; and process of injunction, and a ne exeat, are, according to the usual course and practice of the Court, obtained on the oath of the party. The case of Sedgwick v. Watkins does not appear to be founded on just principles. For the purpose of carrying on this suit, the wiffe is considered as independent of her hus- band, and she ought to be permitted to enjoy the rights of a •party. In the case of Shaftoe v. Shaftoe, (7 Ves. 171.) the application for a ne exeat was made on the oath of the wife, and no objection was taken ; and the lord chancellor pro- ceeded to consider the merits of the motion, on the strength of her affidavit. The case in 1 Vesey, is, therefore, to be considered as virtually overruled. The case of Shaftoe V. Shaftoe is analogous in another respect, as the motion for a ne exeat was there made prior to any decree of alimony, *and was founded on the information and belief of the [ * 443 ' wife. The great difficulty in these applications, when a suit is pending for alimony, is, that the right to alimony, and the amount of it, is uncertain ; and there is no certain sum for which to mark the writ. This Court has always expressed an inclination to interfere in favor of the wife, if that diffi- culty could be surmounted. Lord Loughborough said he would grant the writ, if he could find a precedent ; and Lord HardwicJce said, the ne exeat had been granted in this single case of aUmony, out of compassion to the wife. (7 Fes. 173. Dawson v. Daivson, 1 Ves. jun. 94. Coglar v. CogJar, 2 Atk. 210. Anon. Haffey v. Haffey, 14 Ves. 261.) It does not appear to me that the difficulty of fixing on a sum is, absolutely, insurmountable. Courts of law ahvays sur- mount it, when the writ is marked for bail in actions founded on torts. The amount of alimony will have a material ref- erence to the rank of the parties, and the property of the husband- The case will always be governed by a sound discretion, arising out of its special circumstances ; and the Court will take care that the writ be not used for oppression or extortion. Under this limitation, the process, in cases 347 U^ CASES IN CHANCERY 1815 like this, when the "ntended departure of the husband ig v_^-~s^'-»w^ clearly made out, appears to me to be essential to justice. Eastehrn I shall, in this case, allow the defendant to depart, on Ki^RK giving security in 10,000 dollars to abide the decree of the Court, or to return within one year after such decree, so as to be amenable to the, process of the Court. Rule accordingly. •444] *SiLLS, Administrator, against Brown and others. On a rehearing, the paity that complains of the decree, and seeks to have it corrected, is entitled to open and close the argument. June 23d. ON a rehearing of this cause, a question arose as to which party was entitled to open the argument; whether it was the plaintiff in the suit, or the party, whoever it was, that ob jected to the decree, and applied for a rehearing. The Chancellor. The party that complains of the decree, in whole or in part, and seeks to have it corrected, is entitled to open and close the argument. Eastburn & DowNEs against Kirk. Afiidavits, ex parte, cannot be read in opposition 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 rela- tive to the partnership concern, or in support of the allegations in the bill. The admission of ex parte affidavits is an exception to the general rule, and is allowable only in waste,or in cases where irreparable mischief might ensue. Juu 23d ON the coming in of the answer, in this cause, a motion was made, by the defendant, to dissolve an injunction restraining the defendant, ^ho was a copartner with the plaintiffs, as booksellers, in the city of New- York, from using 348 CASES IN CHANCERY. 444 the copartnership name, or doing any act whatever on account 1815. of the copartnership concern. .^x-n^-™^ Eastbukk *T. A. Emmet, in support of the motion. Kirk. Harison and Wells, contra. [ * 445 ] The counsel, in opposition to the motion, and in support of the allegations in the bill, offered to read certain affidavits of writnesses taken ex parte ; and to show that the affidavits were admissible in such cases, they cited Gibbs v. Cole, 3 P. Wms. 255. Strathmore v. Bowe, 2 Bro. 89. S. C. Dickens, 673. 1 Ves. jun, 427. Isaac v. Humpage, 3 Bro. 463. S. C. Langston v. Boylston, 2 Ves. jun. 101. Cooper's Eq. Treatise, 154. On the other side, to resist the introduction of the affida- vits, was cited Berkeley v. Brymer, 9 Fes. 355. The Chancellor. The general rule is against the ad- mission of affidavits in these cases, and the instances in which they have been admitted are special, and exceptions to the general rule. Lord Kenyon, when master of the rolls, appears to have doubted the correctness of the prac- tice in any case. They have been admitted in cases of waste, and in cases analogous, resting on the same prin- ciple, and where irreparable mischief might ensue ; and I am aware that partnership cases have been brought within this rule. In one of the cases cited, (2 Bro. 89.) the affida- vits sought to be read against the answer, were the original affidavits on which the injunction to stay waste had been founded, and which the defendant must have had an oppor- tunity to have seen before his answer. In this case, the in- junction was granted upon the filing of the bill, and the answer meets the charges ; but if these affidavits are to be admitted, the defendant, on whom they must operate as a surprise, can have no opportunity to meet them ; for it is well understood, in all the cases, that affidavits cannot be admitted in support of the answer in this stage of the cause ; and the defendant might be condemned, upon the strength of *these affidavits, to a suspension of the exercise of his rights [ * 446 ^ as a partner, until the hearing, without any opportunity or means of vindicating himself This case does not strike mc as very* analogous to the case of waste. The injunction, here, is not to restrain the defendant from committing waste, or doing a positive wrong, but from the exercise of all his rights as partner, from the apprehension that he may abuse them. The allegation of previous abuse is made, on one Bide, by the bill, and denied on the other, by the answer ; 349 446 CASES IN CHANCERY. 1815. and if the answer be full, and a denial of all equity, and oi v_<»-v— «w^ every gravamen in the bill, it must, upon the present motion Gill be taken for true. If the injunction is dissolved, the de- Lyo^ fendant may, undoubtedly, abuse his rights as a partner tc the injury of his copartners; but the case does not seem to contemplate the occurrence of mischief which the law would deem irreparable, and future abuse may be the ground for further application. In the case from 9 Vesey, the chancellor refused affidavits to support an injunction to restrain the negotiation of a bill. To admit the affidavits, in this case, would be to authorize their admission in every other case, ■ and would go to destroy the general rule. • The motion for their admission must be denied, (a) N. B. The motion to dissolve the injunction was afterwards granted, on the ground that the answer was a full denial of the equity of the bill. (a) Vide Peacock v. Peacock, (16 Vesey, 49.) where affidavits were admit- ted after answer, and in support of a motion for an injunction, in a copart- nership case. * 447 ] *GiLL against Lyon and others. Lyon and others against Gill & Willson. [Dietingiiishea, 4 Jonns. Ch. 77. See 5 Id. 242.] A purchaser of a part of lands mortgaged, from the mortgagor, is wk bound to contribute ratably, with a purchaser of the equity of redemp tion, under a judgment subsequently obtained, towards the discharge of the mortgage ; unless the residue of the mortgaged premises prove insufficient to extinguish the debt. Juve 27th. THE following are the material facts in this case : ' On the 9th of July, 1806, Benjamin Willson (defendant) sold and conveyed to John Wells, (defendant,) 163 acres of land, in Oxford, in the county of Chenango, and, at the same time, took a mortgage from Wells, to secure the payment of the purchase money, and which was duly registered on the day of its date. On the 21st of 31ay, 1807, William W. Rodman and others obtained a judgment in the Supreme Court against Wells and one Anos Rood. Robert Cheese' borough and William Cairns also obtained judgment in the same Court against Wells and Rood, both judgments being docketed on the same day, and executions issued at the same time. R. Cheeseborough also obtained a judgment, in 350 CASES IN JHANCERY. 447 the same Court, at the same time, against the same defend- 1815. ants, and issued his" execution thereon. On the 7th of '^..*^s^-«w November, 1807, the plaintiff, and J. Gill, M. Gill, and R. Gill Gill, entered up judgment, in the same Court, by confes- lyom. sion, on a bond and warrant of attorney, against Wells^ on •vhich an execution issued. The land was sold by the sheriff, under the above judgments, for 1,825 dollars, and conveyed to the plaintiff, as the highest bidder, the 18th ol February, 1809. Wells, after the purchase of Willson, and the mortgage, and before any of the above judgments were obtained, sold *parts of the mortgaged premises to David Lyon and others, [ * 440 J (defendants.) The bill of the plaintiff further stated, that Willson was proceeding to foreclose his mortgage, by adver- tising all the lands covered by it, under the power con- tained in the mortgage, pursuant to the statute ; and that Lyon, and the other purchasers from the mortgagor, had refused to contribute with the plaintiff, who had purchased under the judgments, towards paying off what might be due on the mortgage. Lyon and the others, in their answers, alleged, that they paid Wells the full value of the lands so purchased by them, and the deeds contained covenants that the same were free of all encumbrances, &c. ; that the plain- tiff knew of the purchases by them, and of the registry of (;he deeds, befdre he made the purchase at the sheriff's sale ; and that Wells was insolvent, &.c. It is unnecessary to state more of the pleadings and proofs m the cause. The question was, whether the purchasers under Wells, the mortgagor, prior to the judgments, were bound to contribute ratably, with the purchaser under the judgments, to the discharge of the mortgage, and to pay costs, &c. Henry and Emmet, for the plaintiff, Gill, the purchaser under the judgments, cited 5 Viner's Abr. tit. Contribution, ■passim. Baldwin, contra, for Lyons and the other purchasers under Wells, ciied 2 Atk.'44.6. 4 Johns. Rep. 216. The Chancellor. The mortgage ought, justly, to be borne oy the lands purchased by Gill, if sufficient to satisfy it ; and Lyons and the other purchasers from the mortgagor, prior to the judgments, are not bound in equity to bear a ratable proportion of the mortgage debt, unless the residue of the mor^aged premises shall not be sufficient to extinguish It. The doctrine of contribution does not apply as betv/een *I/yons and the other purchasers from Wells, on the one [ * 449 J 351 449 CASES IN CHANOERY. 1815. P^^*) ^""^ ^*^^ ^'^ ^'^^ other, because their equity is not v.^-^,—^ equal. Jjyons and the others purchased for the full value, Methodist and undcr a covenant from Wells, that they should hold Epis. Chukch jjjgjy lands free of encumbrances ; and Gill afterwards pur- Jaques. chased only the. equity of redemption remaining in Wells, and he made it with knowledge of the conveyances to Lyons and others, and hehas, therefore, no just claim to contribution. He purchased the remaining right of Wells, and no more ; and Wells, if he had extinguished the mortgage, would have had no claim for contribution against his own vendee. The case is too plain to need much illustration ; and I shall, accordingly, decree, that the portion of the mortgaged prem- ises purchased by Lyons and others, prior to' the purchase of the residue by Gill, be not sold until the residue shall be found insufficient for the payment of the mortgage debt; and that their lands shall only be .chargeable with the balance due to Willson, after the residue of the mortgaged premises shall have been exhausted. And, in order that Willson may deal justly with his mortgage, as between the several purchasers, I shall further decree, that he be re- strained from seUing the portions of the mortgaged premises purchased by Lyons and others, prior to the purchase by Gill, until he shall have disposed of the re<5idue of the mort- gaged premises, and until those purcJ'asers shall have refused to redeem their portions of the premises, after thirtj. days' notice, to their solicitor, of the insufficiency of the residue of the mortgaged premises to satisfy the mortgage and costs thereon ; and that Gill pay to the plaintiffs, in the suit in which he is a defendant, their costs, to be taxed. Decree accordingly, (a) (a) Vide ante, p. 425. '■ 4.50 ] *T%e Trustees of the Methodist Episcopal Church, in the city of New-York, and others, against J. D. Jaques, R. Jaques, and H. Cruger. Where a deed of marriage settlement was executed in the presence oi witnesses, and laid on the table, and the marriage took place immedi- ately thereafter, in the presence of all the parties ; and the deed, 'with- out any other or more formal delivery, was taken by the wife, the cestuy que trust, and kept in her possession until her death ; this was held, under the circumstances, to be a good and valid deed. A husband is accountable for the personal estate of the wife, secured to 352 CASES IN CIIANCEltr. 450 I er separate use by a deed of marriage settleiueut, and which lias 1815. tome into his hands during the coverture, but not for interest on ,^,__^,~,^-.^^^ moneys he may have received for debts' due to her. The husband is m-thodist also accountable for the rents and profits of the wife's real estate, j;p,g chorcb received by him ;' and lands purchased by him with the moneys of ' y_ the wife, are deemed to be held, in trust, for her, though purcliased Ja(iues in his own name; and a third person, to whom the husband had conveyed an estate so purchased, with' notice of the manner of his acquii-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 estate. , Where, by a marriage settlement, the whole real and personal estate of the wife is secured to her separate use, the husband is, notwithstand- ing, bound to maintain his wife and family during the covertui-e, ana cannot make the expenses a charge on her separate estate ; and the consent, or agreement, of the wift, during coverture, that the expenses should be borne by her separate estate, is null and void. But the husband is entitled to an allowance for moneys expended in necessary reparations of the wife's separate estate, and for any specific appropriation of her property, with her assent or direction, for her benefit, (not beiu^ for the ordinary maintenance of her or his family.) THE bill was for an account of the real and personal es- Ane27th tate of Mary Jaques, deceased, late the wife of the defend- ant, J. D. Jaques, and who was formerly the wife of William Alexander, deceased. It stated, that Mary Jaques, at the time of her intermarriage with the defendant, J. D. Jaques, was seised and possessed of a large real and personal estate, particularly mentioned in the bill ; that, in contemplation of the marriage about to take place between her and J. D. Jaques, *a deed of marriage settlement was made and entered [ *451 ] mto, between Mary, of the first part, John D. Jaques, of the second part, and H. Cruger, of the third part, dated the 25th of September, 1805, by which the said Mary con- veyed all her estate, real and personal, to the defendant, Cruger, to the use or the said 31ary until the marriage should take place, and, from and after the marriage, to the use of such persons, and for such estates, as she, with the concur- rence of her intended husband, should, by deed, attested by two witnesses or by her last will and testament, limit and appoint ; and, until such appointment, to the use of H. Cru- ger, and his heirs, during the life of the said Mary, to enable her to take the profits thereof, free from the control of her husband, and at her absolute disposal ; that, immediately after the execution of the deed, the marriage took place be- tween the parties. The bill alleged that, after the intermar- riage, /. D. Jaques, during the Hfetime of his wife, by art- ful- contrivances, possessed himself of her personal estate, and of the rents and profits of her real estate, and applied the same to his own use, changing the securities for money, and taking new securities in his own name ; and appropriated the money belonging to his wife in purchasing real estate. Vol. I. 45 353 451 CASES IN CHANCERY 1815. the titles to which he took in his own name, and claimed v..rf»-s,^—ifc_^ them as his own ; that, among the securities so held by the Methodist said Mary, was a bond of one Heyl, for a large sum, and a Ens. Church mortgage of two leasehold, and one freehold, estate ; which Jaciues. securities J. D. Jaques having got into his possession, pro- ceeded, in his, own name, and procured a decree for the sale of the mortgaged premises ; that he sold one of the lease- hold estates to a third person for 1,980 dollars, and pur- chased in the other for 1,510 dollars, and conveyed it to his brother, iRohert Jaques, the defendant; and that he also purchased in the fteehold estate, and took a deed in his own name ; which two last estates the plaintiffs claim as part of the estate of Mary Jaques, having been paid for out of her personal estate ; and that, before the sale of the mort- [ * 452. 1 gaged *premises, the defendant, /. D; Jaques, received the rents and profits. That Mary Jaques, intending to execute the power re- served to her by the deed of settlement, did, with the con- currence of her husband, by deed, dated the 12th of Se^p- tember, 1812, convey all her real estates to the defendant, Robert Jaques, in fee, upon trust, that, after her decease, he should sell the same, and out of the proceeds, after pay- ing the expenses, should dispose of the surplus as follows: to wit, one third to the trustees of the Methodist Episcopal Church; one third to the children of Thomas Brown and his wife, in equal shares ; and the remaining third to the defendant, J. D. Jaques. That after the execution of that deed, Mary Jaques, on the 25th of September, 1812, made her last will and testament, by which she gave several spe- cific legacies to the plaintiffs ; the children of Thomas Brown and his wife, to Jane Brown, and others ; and all the residue of her estate she gave, the one third thereof to the plaintiffs, the trustees of the Methodist Episcopal Church ; one third thereof to the plaintiffs, the children of the said Thomas Brown and wife ; and one third to the defendant, J. D. Jaques ; and appointed Paul Hicks and ' Thomas Brown, plaintiffs, and John D. Jaques, defendant, executors of her will. That after the will was duly proved, and the specific legacies paid and delivered, the plaintiffs. Hides and Brown, executors, applied to /. I): Jaques, the co-executor, who had the custody of the papers, securities, and personal effects of the testatrix, to exhibit the same to them, in order that an inventory might be duly made ; but the defendant, /. D- Jaques, refused to do so, unless the plaintiffs would first agree to pay him a demand of about 12,000 dollars, which he said he had paid for maintaining the said Mary Jaques, her horses and carriages, &c. The bill set forth the particulars of the residuary personal 354 CASKS IN CHANCERY. 452 estate of the testatrix, as far as it had come to the knowledge 1815. of the plaintiffs ; and prayed an account of the same, and a s.,«»~n,.-<»,^ ♦discovery of what moneys, or securities for money, belonging Methodist to Mary Jaques at the time of her marriage, had come to ^''"' ^|""»"' the hands of the defendant, /. D. Jaques, and how he had Jaques. disposed of the same ; and also of the rents and profits of the [ * 453 ] real estate received by him ; and that the title-deeds might be brought into Court ; that he might be compelled to sur- render the trust of the real estate, or give security for the due performance thereof; that a receiver of the estates may be appointed, and the defendants enjoined from disposing of any part thereof; and for general relief, &,c. The defendants, in their answers, admitted that Mary Jaques, before, and at the time of her intermarriage with J. D. Jaques, was seised of certain real estates, which they men- tioned ; and was possessed of personal property, consisting of slaves, household furniture, horses, carriages, moneys, secu- rities for money, &c., amounting to about twenty-two thou- sand dollars. That the deed of settlement, of the 25th of September, 1805, was signed and sealed, but that it was never delivered, and, therefore, they denied its validity. They admitted the mortgage of Heyl, and a judgment against him for 2,772 dollars ; and that the mortgage and judgment were put into the hands of J. D. Jaques, by Mary Jaques, to col- lect ; and that he was let into the receipt of the rents and profits of the mortgaged premises ; that /. D. Jaques stated and settled an account with Heyl, the balance of which, on the Ist of July, 1806, was 8,026 dollars and 97 cents. The defendants, also, admitted the sale of the mortgaged prem- ises, and the purchase and conveyances, as stated in the bill, setting forth the particulars of the transaction; that Rolert Jaques had notice, at the time J. D. Jaques conveyed to him the leasehold lot in Murray street, of the manner in which J. D. Jaques obtained title to the. leasehold premises under the mortgage ; and that the lease of the lot in Murray street was renewed, in 1812, for 42 years, and assigned to Robert Jaques ; and that the mortgaged premises purchased in by /. D. Jaques, at the master's sale, were paid for by ♦deducting so much from the sum reported due by the mas- [ * 45-1 ] ter ; and that J. D. Jaques informed Mary, his wife, that he had received the said money from Heyl, or property equiva- lent, with which she appeared satisfied. That J. D. Jaques never paid or accounted to her for the money or property so received and obtained by him. The defendant, /. D. Jaques, admitted that he received 808 dollars and 71 cents, for rents and profits of the mortgaged premises, before the sale, which he had not paid over. That his marriage was kept secret 11 months aftpr it took place, during which 355 154 CASES IN CHANCERY. 1815. time his wife transacted her business by her former namu; x^.„r-s,-^ Mary Alexander ; and he set forth, further, the particular! Methodist of his account of expenses for maintaining her, her horses, Epis.Chdrch j^p^ during her life, and for family expenses, &c. Uques The above statement is thought sufficient to a clear un- derstanding of the decision of the Court, without entering into a detail of the proofs taken in the cause. Riggs, for the plaintiffs. T. A. Emmet and Harris^ for the defendants. The counsel, on both sides, went into a particular exami- nation of the proofs in the cause, and the accounts exhibited. The following are the material points insisted on in the argu- ment. For the plaintiffs, it was contended, 1. That the deed of settlement was valid, and secured to Mary Jaques the whole of the real and personal estate ; that the deed was frequently recognized by J. D. Jaques, during the coverture, and was referred to in her will, of which he was executor, and had acted as such. Though not delivered into the hands of the trustee, but kept by the cestuy que trust, it was, nevertheless, a good deed. (9 Ves.jun. 380.) 2. That a husband is bound to maintain his wife, and \ * 455 ] *that the marriage settlement made no alteration in the rule of law, in that respect ; the defendant, J. D. Jaques, could not, therefore, be allowed to deduct the charges of her maintenance, or the family expenses, from the sums re- ceived out of her personal property, and for which he was accountable. (2^^^. 513.) The wife could make no con- tract with her husband, in this respect, nor vest her separatt) property in him. (2 Ves.jun. 488. 4 Bro. C. C. 409.) 3. That the purchases of the mortgaged premises were made with the money of Mary Jaques, and both J. D. Jaques and Robert Jaques must, in the whole of this transaction, be regarded as trustees for those entitled under her will. The surrender of the old lease, and taking a new one, did not vary the rights of the parties, but the second lessee stands on the same footing as the first. (2 Atk. 74. Sugden's Law of Vend. 444. 427. 9 Vesey,jun. 375.) For the defendants, it was argued, that if the bill could be sustained, an account must be taken before a master ; and the only object for the Court, at this time, would be to settle a few principles, for the guidance of the master in taking the account. The point, as to the purchase of the leasehold, and renewal of the lease, ought to be left on the equity re 356 CASES IN CHANCERY. 455 seived, on the coming in of the report. The principal ques- 1815. tion was, what allowances were to be made to J. D. Jaques s^^»-n,— .»_, "or the maintenance of his wife, and the family expenses. Methodist But if the settlement deed was not valid, as they contended Epis.Chubch it was not, then the bill must be dismissed. There was no jAftUE*. pretence that the deed was ever delivered. There was no proof of a delivery. In Chamberlain v. Stanton, {Cro. Eliz 122.) where a deed was signed and sealed by the defend- ant, and laid on a table, and the plaintiff, afterwards, came and took it up, the Court held it was not the defendant's deed, there being no formal delivery of it. That J. D. Jaques cannot be a trustee of the property purchased by him. Robert Jaques was a fair purchaser, and cannot be held to be a trustee. But on the main point, *how far the defendant, J. D. Jaques, is to be allowed for [*456J the expenses of maintaining his wife and family, the evidence shows conclusively, that it was understood, and agreed by Mrs. Jaques, that those expenses were to be borne by her ; and, her estate ought, therefore, to be made liable for them. At any rate, a husband is not liable to pay interest on the amount of her estate received by him. (2 Vesey,jun. 698. 2 P. Wms. 82, 83.) Thr Chancellor. This case having been brought to a hearing on the pleadings and proofs, it seemed to be a conceded point, that there must be a reference to a master to take and state an account between the parties ; and the object of the discussion was to ascertain and settle the princi- ples upon which the account was to be taken. 1. I. am of opinion, in the first place, that the marriage settlement of the 25th of September, 1805, is to be consider- ed as valid and binding. It was executed by Mrs. Jaques, prior to the marriage, with the usual solemnities, and laid upon the table, in the presence of all the parties to it. It was executed in reference to the marriage, which took place immediately thereafter, and while the deed so remained upon the table. The deed, under these circumstances, is to be ojnsidered as duly consummated ; and it would operate as a fraud upon the wife, and be repugnant to one of the con- siderations of the marriage contract, if the husband could be permitted to set aside the deed, for the want of some tech- nical formality in the delivery. The delivery was here suffi- cient in judgment of law, and the taking of the deed, after- wards, by the wife, into her possession, is to be considered as done with the assent of the trustee, and for safe-keeping, and could not impair its validity. The husband, during the coverture, recognized the deed by being a party to the con- veyance to Robert Jagwe*,' made in pursuance of its provia- 357 456 CASES IN CHANCERY. 1815. ions; and, since the death of his wife, he has recognized i| >„^-%,.^.»_^ by proving and acting under her will, which refers *to that Methodist settlement, and declares the will to be made in pursuance Epis. Chukch _/• -t jAquEs. 2. The deed of settlement being valid, and to be supported f * 457 ] in this Court, the defendant, John D. Jaques, is to account for the whole personal estate of his wife which may have come to his possession. But, considering the confidential nature of the marriage connection, and the agency of the es tate, which usually and almost necessarily results from it, it would be too rigorous to charge the husband with interest on the moneiys which may, from time to time, have been re- ceived. Some of the cases go so far as not to require the husband to account further than for the principal of the wife's separate personal estate, in cases where moneys have been received, and not to account for the interest which he may have received on the debts due to her. {Powell v. Hawkey &f Cox, 2 P. Wms. 82. Squire v. Bean, 4 Bro. 326. Smith v. hord Camelford, 2 Vesey,jun. 698.) This liberal rule I am wiUing to adopt in this case, especially as Mrs. Jaques was very indulgent to her husband as to the management of her estate, without making complaint either to her trustee or to this Court. I shall presume, that such receipts of interest (if any) were expended for the benefit or accommodation of the wife, and shall not impose on the husband the burden of duly accounting for every particular item of such expen- diture. 3. The defendant, J. D. Jaques, is to account for all the rents and profits which he may have received of her real estate, including the leasehold estate, and the freehold estate purchased in by him, under the operation of Heyl's mort- gage. These lands were purchased by him with the moneys of his wife, and the purchases, consequently, enured to her benefit as a resulting trust. The defendant, Robert Jaques, is, also, to account for the rents and profits of one of these estates, purchased by him of J. D. Jaques, and unpaid for. He appears to be justly chargeable with notice of the trust [ * 458 ] *when he made the purchase ; and, consequently, the trust went with the purchase. But, under the circumstances of the case, it would be reasonable, and I direct that either trustee be credited, by the master, in taking the account, with any beneficial and permanent improvements made by him upon the trust estate. 4. No allowances are to be made to the defendant, /. Ji- Jaques, for the maintenance of his wife and family, during the coverture, that being a duty chargeable upon him as husband, and in no respect chargeable upon the wife's sepa- rate estate. Such an allowance would be a fraud uoon the 358 CASES 1J\ CHANCERY. 459 marriage settlement, by which it was expressly declared, that 1815. the husband was not to have any right, or interest, in law or v^^»-v.^«w^ equity, in or to any part of her estate, but the same was to Methodist be subject only to such uses as she should declare by deed, ' ' ' v. and to her separate and only use and benefit. The estate JA^nzs. was not to be subject to his control or engagements ; and, to render it chargeable with the maintenance of her or his family, would be in violation of the settlement, and defeat or impair its provisions. I have not, therefore, paid any atten- tion to the parol proof of the confessions of the wife during the coverture, as to any agreement that the family expenses were to be borne by her separate estate. Such confessions are in contradiction to the solemn contract of the parties, by deed, when they were separately capable of making such a contract ; they must be viewed with the utmost jeal- ousy, as made under improper influence, and cannot be per- mitted to be set up by the husband to impair the rights of his wife under the settlement. The utmost that I can do in this case is, to allow the husband to be credited with any necessary reparations bestowed by him on any part of her estate ; and with any particular specific appropriation of her property, (not being for the ordinary maintenance of her or his family,) which may have been made by her special assent and direction, in the given case, and, apparently, for her benefit. In one case, (4 Bro. 409.) an allowance was *made [ * 459 ] to the husband, out of the wife's separate estate, for extra expenses in her maintenance ; but the burden was there peculiar and extraordinary, on account of mental derange- ment. 5. It would be proper, in this case, and for the benefit of all the parties in interest, that the real estate left by Mrs. Jaques, including the lands so held in trust folr her, should be sold, and the proceeds brought into Court, to the end that the same may be distributed according to the directions in the deed and will of Mrs. Jaques. Let a reference be, therefore, made to a master, to take and state an account, subject to the directions here given ; and let an order be entered for the sale of the real estate, &g; Decretal order accordingly. (a) (a) 8. C. ante, p. 65. 359 459 CASES IN CHANCERY. 1815. Smith Smiih, an infant, (by his next friend), ogAinst Brvsh Rb-'sh- and others. Where the facts charged in a bill are fully denied by the answer, there can be no deuree against the answer, on the evidence of a single witness only, without corroborating circumstances to supply the place of a second witness. And where publication had passed in a cause, without any witnesses being examined on either side, the Court refused, especially after the lapse of more than two years from the time of filing the bill, to opep the rule for publication, on the affidavit of the plaintiff of the discov ery of a witness who would prove a material fact in the cause, denieJ in the answer. Nor would the Court, under the circumstances, award a feigned wiu in the cause, that being a measure of sound discreUon. June 27ili. THE bill, in this cause, was filed January 7th, .1815i. The answer of Brush was put in July 29th, 1812. In [ * 460 ] *March, 1813, a rule was entered to produce witnesses in the cause; and, in January, 1815, publication passed, no witnesses having been examined on either side. The facts stated in the bill were, that Thomas Gibbons, on the 22d of July, 1804, gave to John Smiih, the plaintiff, a note for 5,000 dollars, payable in five years, who endorsed it to Robert Smith, jun., who, in April, 1809, gave the note to Theron Rudd, as security, who, with the assent of Robert Smith, jun., delivered the note to the defendant, Brush. That the note was given by Gibbons for the benefit of the plaintiff, his natural son, which was the consideration ; that Brush brought an action against Gibbons, at law, on the note, on the trial of which Robert Smith, jun., was a witness, and proved the facts set forth in the bill, as to the note; and on which trial a Verdict was found for the plainfiff. That Brush, when he took the note; knew the original con- sideration of the note, and the trust under which it was received ; and that Brush was not a bona fide holder, not having paid a full consideration for the note ; that Gibbons, being willing that the amount of the verdict should be ap- plied under the direction of the Court, had paid the money into Court ; and the bill prayed, that the money might be placed at interest for the benefit of the plaintiff; and that the defendant, Brush, might be enjoined from proceeding at law on his judgment, and for relief generally ; an injunction was issued accordingly. Brush, in his answer, averred, that he paid a good and valuable consideration for the note, which he set forth, and denied all knowledge, at the time he received the note, o< the ori^nal consideration, or purpose, for which the note was CASES IN CHANCKRY. UtO given, or of any trust or confidence between the original 1311}. parties, not having heard of any such allegation, until in vs,>«'-n^-«- ^ November, 1809. Smith A motion was now made, on the part of the plaintiff, to rbuhm. open the rule for publication, on an affidavit stating the dis- covery, yesterday, of a witness, by whom he could prove *that the note was in possession of Robert Smith, jun.^ after [ * 4G1 1 it was due, and that Smith offered it as a pledge for money. T. A. Emmet and Colden, in support of the motion. Boyd and Slosson, contra. The Chancellor. The bill charges the defendant, Brush, with purchasing the note under a knowledge of the consideration for which it was given, and of the trust under which' it was taken by the payee, and deposited with Robert Smith, jun.; and it further charges him with not being a bona fide holder for a valuable consideration. To this charge the answer states, that the note was purchased in April or iWay,- 1809, for a valuable consideration, and the items forming that consideration are particularly mentioned, and amount to 3,550 dollars ; that the note was assigned to him by Robert Smith, jun., it being at that time in the hands of Theron Rudd ; and that, at the time of the assign- ment, he was not informed of the consideration or purpose for which the note was given, nor of any agreement, trust, or confidence, between the original parties, and that the first knowledge of any of these allegations in the bill, was ob- tained in November, 1809 ; that the transfer of the note to him was absolute and unconditional, and the same is solely and exclusively his property. This answer was put in in July, 1812, and the rule to produce witnesses was entered in March, 1813, and publi- cation passed in January last ; and a motion is now made to open the publication, on affidavit of a discovery of a single witness, by whom the plaintiflT undertakes to prove that the note was in possession of Robert Smith, jun., after it was due, and that Smith offered it as a pledge for money. The decisive objection to this motion is, that tht. testi- mony would not be material if produced. It is a well-set- tled rule, that there cannot be a decree upon the (acts charged in the *bill and denied in the answer, upon the deposition of [ * 402 ' a single witness. There must be two witnesses, or con- curring circumstances, to supply the place of a second wit- ness, before there can be a decree against the answer. ( Wal- ton V. Hobbs, 2 Atlc. 19. Pember v. Mathers, 1 Bro. 52.) Here are no circumstances staled, or shown, in corrobora- VoL. I. 46 361 462 CASES IN CHANCERY 1815. tion of what the newly-discovered witness mighi prove. Tho ■v^^-v-i^^ answer is clear and positive, and the defendant, Brush- Cakter stands upon his right to the judgment at la>v, as a bona fide TviT.^Ns. Co. purchaser, without notice, and for a valuable consideration, of negotiable paper before it was due. It was suggested that the evidence of one witness might justify the awarding of a feigned issue to try tho fact of notice, or of a purchase out of time. But that step must rest upon discretion, guided by the special circumstances of the case ; and when we take into consideration the great lapse of time since Brush ob- tained his judgment at law, and put in his answer in this Court, during which period the plaintiff has not been able to furnish any proof; and when we consider, further, that the recovery on the note was strongly resisted on the trial at law, on the ground of forgery, I think it would not consist with the exercise of a sound discretion, to harass the defend-! ant with anotheir trial at law, when he is able to rest upon his defence here. I am, accprdingly, of opinion, that the motion be denied. The cause, then, came on to a hearing, and the bill, as to Brush, was dismissed, with costs. *463] *Carter k. Moore against The United Insurance Company of New-York. A bill filed to recover the amount of a total loss on a policy of insurance, stating no other ground of equitable relief, than that the policy had been assigned to the plaintiffs by the insurers, in whose name it had been effected, and that the insurers refused to pay, was, on demurrer, dismissed, with costs, the plaantiff having adequate remedy at law. June 28ih, THE bill was filed by the plaintiffs, as assignees of a pol- icy of insurance, underwritten by the defendants, for Wil- liam Titus and George Gihhs, on which the plaintiffs claimed payment for a total loss. The insurance was on 500 barrels of flour from Newport to St. Jago de Cuba, on board the Spanish brig Patriota, which was captured by a Carihagena privateer. On the 21st of December, 1814, the policy was assigned by Titus ^ Gibbs to the plaintiffs, in trust, for themselves and other creditors of Titus &/■ Gibbs. The bill charged that the defendants refused to pay the loss, alleging, among other things, that the jilaintiffs had no title to the property insured, which, in fact, belonged to one J . 362 CASES IN CHANCERY. 463 a Spaniard, and not to Titus fy Gihbs. The bill prayed 1815. that the defendants might answer the matter charged in the bill, v_^-^r-^.' and be compelled to pay the plaintiffs the amount insured, Carter as for a total loss. Unit Ins. Ca To this bill the defendants demurred on the following grounds : that it appeared by the bill that the plaintiffs' de- mand, or cause of action, was properly cognizable in a Caurt of law ; as it is not alleged that Titus If Gibhs re- fused to let the plaintiffs make use of their names, in a suit at law ; or that they are, in any way, hindered from prose- cuting at law ; or that they stood in need of any discovery to aid them in such action. *S. Jones, jun., in support of the demurrer. He cited [*464J Marsh, on Ins. 619. 4 Bro. P. C. {Tomlin's edit.) 436. Mosely's Rep. 83. 1 Atk. 457. T. A. Emmet, contra. The Chancellor. The demand is properly cognizable at law, and there is no good reason for coming .into this Court to recover on the contract of insurance. The plain- tiffs are entitled to make use of the names of Gibbs Sf Titus, the original assured, in the suit at law ; and the nom- mal plaintiffs would not be permitted to defeat or prejudice the right of action. It may be said here, as was said by the chancellor, in the analogous case of Dhegetoft v. The London Assurance Company, [Mosely, 83.) that, at this rate, all policies of insurance would be tried in this Court. In that case the policy stood in the name of a nominal trustee ; but that was not deemed sufficient to change the jurisdiction ; and the demurrer to the bill was allowed, and the decree was afterwards affirmed in parliament. (3 Bro. P. C. 525.) The bill, in this case, states no special ground for equitable relief; nor is any discovery sought which'requires an answer. Bill dismissed., with costs. 363 465* GASES IN CHANCERY. 1815. Barker *Barker agaiust Elkins and Simpson. _ *'■ FFoUowea, it Johns. Ch. m] Elkins. ^ . Wliere a defendant, m an action at law, has not used due diligence in • making his defence, or in applying to this Court for a discovery, lo as.sist bis defence, at law, if necessary, he cannot, after a verdicl against him, obtain the aid of this Court to stay the proceedings at law, or to bave a new trial. *«n«29tii. THE plaintiff authorized Michael Connellin, at New-- Orleans, to purchase and ship for him a certain quantity of flour and cotton, and to draw on him for payment. Cnn- nellin, in March, 1812, drew bills on the plaintiff in favor of Elkins at 60 days' sight, which were accepted by the plaintiff, but, afterwards, protested for non-payment. Mkint claimed the amount as holder of the bills. On the return of the protested bills to iVew- Orleans, Connellin, who had the flour and cotton in his possession, assigned them over to the defendants, in trust, to pay the bills and other demands, &c Part of the bills were, afterwards, paid by the plaintiff; and the flbur and cotton so assigned were suflScient to pay the balance due. The defendants sold the flour and cotton without crediting the plaintiff with the proceeds ; and in January, 1813, brought an action at law on the bills against the plaintiff; and, in April, 1813, obtained a verdict against him for 5,606 dollars and 48 cents. Pending the suit at law, Connellin died insolvent. The plaintiff further charged, in his bill, that he h.ad been deprived of the means of obtaining legal testimony to defend the suit at law ; and that the present defendants were insolvent. He prayed for a discovery and account, and an injunction to stay further proceedings on the verdict at law. It appeared that an injunction had been moved for, on a former bill, for that purpose, a few days previous to the trial at law, and was denied ; and that, without dismissing • 466 ] *the former bill, the present bill, with some slight amend- ments, was filed, and an injunction allowed by a master, on the plaintiff's bringing the amount of the verdict into Court. Slosson, for the defendants, now moved to dissolve the injunction, on the ground that the first bill had not been dismissed ; that an injunction had once been denied ; (3 Atk 394.) and that no sufficient equity was stated in the bill. fVells, contra, offered to enter a rule, instnnier, for dis- missing the former bill, with costs. The injunction on the first bill, he said, was denied, because the plaintiff did not sufficiently account for his delay, 'n not applying for it 364 CASES IN CHANCERY. 46fi oefore, or until on the eve of the trial at law. He urged 1815. that, if the injunction was not retained, the plaintiff would v_^-s/— o^ be remediless, as the plaintiffs in the suit at law were STouoHros insolvent. l^^ch. Tub Chancellok. The plaintiff should have made his defence at law, by way of payment, or set-off; ana ne might, perhaps, have called for a discovery in aid of his defence at law. No reason is assigned why he did not call for a discovery, or prepare and defend himself in due season. He has not stated what were the obstacles to a defence at law. A defendant cannot come here for a new trial, when no special ground of fraud or surprise is suggested, and when he neglects', or omits due diligence, and without due excuse, to defend himself in his proper place. This is a fundamental doctrine in this Court. {Le Guen v. Gouverneur &r Kemhle, 1 Johns. Cos. 436. M Vickar v. Wolcott, 4 Johns. Rep. 510. Lansing v. Eddy, decided in this Court, June, 1814.t Smith &r Mead v. Lowry, October, 1814.$ The '^'^•^-^ principle has been so often declared, that it is useless to ' ' ''■ enlarge; and, without resting on minor *objections, the f*467' injunction cannot be retained on the merits of the case. Motion granted, (a) (o) See De Lime v. GlasseU, iH. S/- M. 369. TuTpin v. Thomas, 2 H. ^' M. 139. S. P. Stoughton against Lynch. [3. c. 2 Johns. Ch. 209. Commented on, 2 .Sandf. Ch. 1S6.] Where ai tides oi coparttiereiiip stipulated, that the capital and ptojits of the company should remain in the house, and be employed, during the copartnership, for the benefit of the concern, each party being at liberty to withdraw from the joint funds so much only as was neces- sary for his private expenses ; it was held that neither party had a right to withdraw from the funds money to purchase plate, household furniture, can-iages, horses, &c., but only for family expenses, arid the reasonable education of children, &c. [f one partner withdraws or uses the partnership funds, in his ovwi private trade or speculations, he must account not only for the whregt on the moneys so withdrawn, but for ihe profits of that trade. THIS was a bill for an account between the parties, as JtUyltt, partners in trade. The articles of copartnership were dated the 10th of March, 1783, both parties then residing -^_^ agreed to establish a trading house at New- York ; and the Stooghtok plaintiff was to proceed to New- Yorlc, for that purpose, a« LvHCH. ^^^^ ^^ possible, after the 1st of May, ensuing. The part- nership was to continue for seven years after the plaintiff's arrival in New-York, and then six months after notice, of separation. The plaintiff was to be the active partner, or to take the laboring oar, and the profits were to be equally divided. The capital was to be 7,500 pounds sterling, of which the defendant was to furnish 5,000 pounds, and the plaintiff the residue ; and to pay an interest of five per cent. on his deficiency of capital. The capital and profits to I * 468 ] remain *in the house, and he employed for' the benefit of the concern, during the partnership, withdrawing such part only as may he necessary for private expenses. The defendant proposed to establish himself at Philadelphia. A fair balance of the books of the firm was to be made, signed, and approved by the parties, annually. Neither party was to do business at New-York, on their private account, during the partnership, nor lend any of the capital stock, nor enter into any acceptances, for account of the partnership, without mutual consent, each party doing his best to promote the advantage of the company ; the plaintiff was to carry out to New- York ~l, 000 pounds sterling. The partnership was dissolved in July, 1795. The decretal order of reference, of the 6th of July, 1814, to a master, to take and state an account between the parties, directed the defendant to be charged with interest upoii all such sums of money as he may have drawn out of the copartnership funds beyond the amount necessary for his private expenses. The master, in his report, stated, that the defendant claimed, under the head of charges necessary for his private expenses, (1.) 1,200 dollars, for his family expenses at Bruges, from the 6th of October, 178-3, the day on which the plaintiff commenced business at New- York, to the 1st of April, 1784. (9.) 500- dollars, expenses of removing from Bruges to London, in Jlpril, 1784. (3.) 5,000 dollars expenses in London, from the 1st of April, 1784, to the 1st of April, 1785. (4.) 1,500 dollars, for expenses from that day until the defendant's arrival in New- York, including the passage. (5.) 5,610 dollars, for plate, harpsichord, carriage and horses, and furnishing a house in New-York. (6.) 1,260 dollars, annually, for rent of a house in New- York, from the 1st of Jlpril, 1788, to the 3d of July, 1795. (7.) 1,050 dollars, annually, expenses of educating four children, from 1792 to July 3d, 1795. All these charges were disallowed by the master, and excep'^ons were taken by the defendant 366 CASES IN CHANCERY. *469 *Tiie points diwussed and decided, arose on these exceptipriS, 1815. and for further directions to the master. -.^^-^^^■^^^ Stobghtoi T. A. Emmet, Riggs, D. B. Ogden, and P. J. Munro, lt^ch. for the defendant. Htrison and Wells, for the plain tiif. The Chancellor. The articles of copartnership in- tended to preserve, in a state of progressive accumulation, the funds of the house; and the clause upon which the question before me has arisen, is to be taken strictly. This is evidently the sense' and spirit of the agreement. It is •expressly stipulated, ' that the capital and profits of the company were to remain in the house, and to be employed for the benefit of the concern, during the partnership, with this special exception, that such part only was to be withdrawn, as mifijht be. necessary for private expenses. And to show the care with which the parties guarded the funds from being diverted by either of them, it was further stipulated that neither, of them was to do business at New-York on their private account, nor lend any of the capital stock, or enter into acceptances; but each party was to do his best to promote the advantage of the company. After reading these articles, it is impossible not to view most of the charges which the defendant wishes to include under the special exception as palpably inadmissible. To consider plate, musical instruments, carriage and horses, and the whole furniture of a house, as coming within the permission granted to the parties to withdraw the funds of the house only when necessary for private expenses, is, in my judgment, an unrea- sonable and extravagant pretension. The object of the decretal order, of last July, was, not to exempt from interest all those moneys withdrawn that were not supposed to be employed in land speculations. I then observed, that if th'3 funds so withdrawn had been employed in trade, the party *would have had. to account, not merely for interest, but for * 'Hi j the profits of that trade ; and we find authority for this in Broivn v. Litton, (1 P. Wms. 140.) and in Crawshay v. Collins, (15 Ves. 218.) where the principle is stated, that if one partner trade alone on a joint stock, he shall divide the profits. The least that I could do, in this case, was to make him pay interest on all moneys withdrawn beyond the private necessity expressed in the contract. The interest of the parties as joint traders, the obvious policy and meaning of the contract, and that good faith which is the animating principle in all mercantile associations, unitedly concur in recommending us to view the claims set up by either party, 367 470 CASES IN CHANCERY. 1815. undei the exception, with a jealous and scrupulous eye <^^"s^—,.^ Without such a rule of construction, a partnership^ like the Ktouchto.v present, with all its provisions to preserve the funds of the Lynch. house untouched, might soon languish under the carelessness, or dissipation, or discordant and rival views, of either of the contracting parties. The parties, then, had in view, that funds were to be withdrawn only when necessary for private expenses; and when at any time withdrawn, the party must have done it with a view to that necessity. That must have been the purpose for which they v^ere withdrawn. The more safe and regular way v\^ould have been, to have stated, in each case, the object of the appropriation, so that each party, at the end of every year, when a fair balance of the books, according to the articles, was to be made, signed, and approved, might have known and judged of the requisite appropriation. But it would, perhaps, be too rigorous to require the production of such an original entry to justify every such appropriation ; and I am willing even to presume, that a fair Eind reasonable sum, drawn away in each year, was necessary for the private expenses of each individual partner during that year. Beyond this presumption I cannot go. All the European expenses of the defendant are, therefore, to be laid out of ,the case, because, as I under- [*471 ] stood *from the suggestions of the counsel upon the argu- ment, there was no concurrent, or any thing like cotemporary, appropriations, or drafts, with any presumed reference to those expenses. I am to presume, then, and I do presume and believe, that the defendant never deemed it necessary, at the time, to recur to the permission granted under these articles, to meet and defray those expenses. The idea of including them under this article was an after-thought, arising many years after those expenses had been borne and forgotten. With respect to the moneys drawn out by the defendant, . after his arrival and settlement in t-his country, (and no moneys were called for by him before,) it may be difficult to estimate the allowance that ought reasonably to be made - for necessary private expenses; for so far, and no farther, I can presume the moneys diverted by the defendant within any given year, were applied. It ought to be observed, that the inquiry is, not what the defendant ought to have as suitable to his establishment and fortune, but how much we can fairly presume he thought proper to draw out of the funds of this company for that object. If no money was drawn out, in any given year, by the defendant, I am to presume he elected to support his family, for that year, out of other funds, and deemed it most advantageous that his 368 Lykch CASES IN CHANCER y 471 portion ot tho funds of this company (srid which was, 1815. probably, only a small part of his estate) s.hould continue to .^^^-v.^^.*^ be employed in the business of the concern. On this ground, Stoughtob therefore, I cannot presume, and unless the defendant can furnish the proof to the master, I cannot allow, that any part of the funds of the company were withdrawn to meet the interest of the moneys with which he built the house in which he lived. If the defendant was able to build and occupy such a house with other funds, it is impossible to suppose he thought it necessary to curtail his capital in this company, to pay himself for living rent free in his own house. No prudent man would so abuse and misapply his own funds. *He either withdrew the funds because he wanted them for [ * 472 J actual current expenses, or for some purpose unauthorized by his contract. I am, therefore, of opinion, that the charge of rent was properly rejected by the master. The expense of his family, and the reasonable education of the children, may be fairly presumed to have been supported out of funds drawn from the concern within the year ; and the only charge in the master's report, which, I think, was a proper subject of allowance, to a certain extent, was that of the expense of education of the children of the defendant ; the proper sum which the master is to allow for that education, as well as for the other expenses of the family, must depend upon what shall appear to him to be a reasonable allowance to a person of the defendant's rank and business, and under all the circumstances of the case. This allowance, however, for any given year, is, in no case, to exceed the amount of the moneys drawn out by the defendant within that year. Beyond that sum, I have no ground for any presurnption and allowance ; and if the defendant made no diversion of the funds of the company in any given year, I shall contend, that he elected to let these particular funds flourish, for that year, in the business of the concern, and to support his family out of other parts of his estate less beneficially employed. . The exceptions are, accordingly, overruled, with costs , and the master must have further directions, according, to this opinion. Rule accordingly. Vol. I. 47 3(39 4'; 3* CASES IN CHANCERY. 1815. Moses *Moses and Others against Murgatroyd, M*»RarTKori;. Administrator, &c. An administrator, or trustee, who resists a claim, and litigates bona fdt, from a conviction of duty, and wljiere no intentional default is made to appear, will not, under the circumstances of the case, be charged personally with the costs ; but they must be paid out of the' assets of the intestate! On a rehearing the Court refused to alter tne decree before given in the cause, (see ante, p. 119.) except as to the payment of costs by the ad- ministrator. And the Court refused to order the costs of the admin- istrator of the mortgagor, on the sale of premises mortgaged in fee, to be paid out of the proceeds in this Court. huy 3d. ON a rehearing against the decree of the 29th of August last, in this cause, [ante, p. 119.) the objections to that decree were, 1. Because it was decreed that the amount of the moneys in the hands of Charles Wilkes be paid to the plaintiffs, under their demand, founded on the assignment of the 12th of February, 1806, mentioned in the pleadings; whereas those moneys arose out of the proceeds of the cargo of the ship Emperor, under the two assignments of the 20th of December, 1805, and the 12th of February, 1806. 2. Because it was decreed that the defendants should pay costs. It was, also, urged, on the rehearing, that the costs of the administrator, relative to Lawrence's mortgage, ought first to be paid out of the assets resulting from the mortgage, and the residue only be distributed. T. A. Emmet and Wells, for the defendants. ITarison and Hoffman, contra. The Chancellor. It appears from the pleadings and proofs, that S. G. Ogden made three assignments of prop- I * 474 J erty *to Samuel Murgatroyd. The first assignment was on the 20th of December, 1805. That assignment has not been made an exhibit, or an object of proof, for the defend- ant seems not to have placed any reliance upon it as a mat- ter of defence ; and, therefore, the precise terms of it do not appear. But, from the incidental notice taken of it in the cause, it appears to have been an assignment of a quantity of coffee on board the ship Emperor, and arising out of some old debt due to Ogden from the government of Jffay/i. This first assignment was not made by Ogden, nor accepted by Murgatroyd, as a special security for any particular debt; 370 CASES IN CHANCERY. 474 but was intended as a general security for advances and 1815. responsibilities made or incurred by Murgatroyd on account v„<»~s^-^_^ of Ogden. The next assignment was made on the 20th of Moses February, 1806 ; and though, like the former, it was ji„Rg4TR0Ti! general in its terms, yet it has been shown and decreed to have been made and accepted as a special security for Murgatroyd' s endorsement of the notes stated in the bill. This assignment was of 100,000 pounds of coffee, or other goods of equal value, (or to the value of 20,000 dollars,) on board of the said ship, being the returns of the outward cargo. The third assignment was of the freight of the ship ; but as no part of that freight ever came to the possession of the assignee, it becomes of no consequence in the present case. The ship, with her cargo, arrived at New-YorJc ; and it has been ascertained, under an arbitration acceded to by the parties, that of the proceeds of that cargo, consisting of coffee, cotton, and sugar, the sum of 16,270 dollars and 50 cents came to the hands of the defendant, under the two assignments, without distinguishing whether those proceeds came to hand under the one or the other assignment, though it admitted that a considerable part of the coffee was to be placed to the account of the second assignment. After deducting from those proceeds the amount which had been paid on two of the notes mentioned in the *pleadings, the sum of 11,150 dollars and 50 cents was [*473] placed in the hands of Mr. Wilkes, to abide the decree in this suit. Upon a consideration of the case, under all its circum- stances, it appears to me that the administrator cannot be permitted to protect part of the coffee against the operation of the second assignment ; and that the whole amount of the moneys in the hands of Mr. Wilkes was justly applied, by the decree, to the payment of the notes mentioned in the bill. The amount of coffee claimed, in this case, falls short of the quantity specified in the second assignment ; and it does not appear that the coffee, laden on board, had any distin- guishing mark to designate from what particular source it arose; an J the proceeds of it seem never to have been dis- criminated as belonging to different objects, either by the assignee or his administrator. The coffee must have been, originally, confounded in one entire parcel, and as yielding one entire sum, to be appropriated, generally, to the indem- nity of the intestate, for his engagements on behalf of Ogden. This is the necessary conclusion to be drawn from the case, as the first assignment is not even made an exhibit in the cause ; and the distinction now set up. on the rehearing, 371 ftlURGATROYD. 175 CASES IN CHANCERY. 1815. appears not to have been mi-.de by the intestate, noi relied ^„i.-^^.-,fc_^ on as a material point of defence by the defendant. The Mosj.s first assignment created no special trust in the intestate. It was made for his indemnity at large against existing and future advances and responsibilities for Ogden ; and when the intestate accepted of a second assignment of coffee, on board of the same ship, to a precise amount, and to meet the demands of particular creditors of Ogden, a slight variation in the description of the source from whence the coffee pro ceeded seems not to be sufficient to justify the assignee in disregarding his trust. The safer and better rule is to pre- clude this recent pretension, as dangerous to the fidelity and security of the trust ; and which pretension the intestate, and [ * 476 ] *his representative, may be considered as having successively waivedby their own conduct. In construing the instruments, we are to look to the rights of the parties, as they stood when the second assignment was made and accepted. The two assignments were ' thci acts of the same parties ; and as the second charged the intestate with a special trust, we ought, if possible, to give it full effect, and, if necessary, to make all the coffee on board subservient to that trust, to the speci- fied amount, without inquiring how much proceeded from one source, and how much from another. That addition cannot well be considered, under the peculiar circumstances of this case, as an essential part of the description. The great object and substance of the contract was coffee to a certain amount. The intestate accepted, and assumed to apply to the dis- charge of particular debts, 100,000 pounds of coffee, or to the amount of 20,000 dollars ; and he ought not to be heard in his allegation, that he has coffee sufficient, but that he chooses to apply part of it to other purposes, according to his own discretion, because he can now undertake to show that part of his coffee was purchased from another source, or with other proceeds than those mentioned in the assign- ment. Admitting the fact to be so, yet, while no particular rights of third persons are concerned, (and none were when the second assignment was made,) the specification of the quantity will control the residue of the description, and cover whatever coffee he may have had on board to that amount. Suppose there had been coffee enough on board, but all of ' it the result of the Hayii debt, would the intjstate have gone clear of his trust ? That cannot be admitted. As the parties were competent to bind, by this second assignment, all the coffee on board, and as they intended to bind 100,000 pounds of it, the intestate must, on every sound construction, be answerable, under his trust, /o»- that quantity of his coffee on board, without being permitted to rest on the question, (immaterial in this case,) how, or with what property, hs 372 CASES IN" CHANCERY. 47fi procured it. It lies not in his mouth to impair or defeat his 1815. trust, by *such a refinement, in his own favor ; and, especially, -^^-n,.-,,.<,^-~v'-.,w/ either be entirely suppressed, or entirely supported, with lat- BoTD isfaction and safety. Dun'lip Neither of the deeds have been regularly proved and made exhibits in the cause, though they were produced on the hearing. This is alleged to have arisen from inadver- tence ; and a motion has been made to enlarge publication, for the purpose of proving, formally, the execution of the deeds. Liberty to re-examine witnesses rests in discretion, and is to be governed by circumstances. This is the gene- ral rule; (Wyatt's P. R. 420. 2 Fes. 270. Amh. 585.) but, from the view I have taken of the case, this measure need not be resorted to. There is very considerable proof {'though not the most direct) of the execution of the deeds I * 481 ] *prior to the judgments. If, in fact, they were not so ex- ecuted, the plaintiffs need not have come here, and they are at liberty to pursue their full and perfect remedy at law, by ejectment founded on the sheriff's deed. But assuming the conveyance of the land to have been executed at its date, as the answer'alleges, and which fact appears pretty evident- ly from the testimony of Shurtleff, one of the subscribing witnesses, then the question occurs, To what extent can re- lief be afforded against it? The circumstances of the case are extremely unfavorable:, to the fairness of the transaction ; and to give the convey- ance absolute vaUdity would be attended with the utmosS danger to the rights of property. The very diminished; control which the creditor now has over the person of the debtor, greatly enfeebles the common law remedy of im- prisonment, as a means of coercion to justice; audit be- comes important to guard, with increased anxiety, against every possible contrivance to cover or withdraw property from the payment of debts. The bill of sale of the household fur- niture I consider as absolutely void. The defendants have not made out, in. proof, any consideration on which it rested when it was made, and the fact of the articles being house- hold goods, and continuing in the same possession after, as before the sale, is decisive against its validity. Lord Ellen- borough ruled, in the case of Wordallv. Smith, (1 CampbelVs N. P. 332.) that a concurrent possession with the assignor was colorable, and that there must be an exclusive posses- sion under the assignment, or it is fraudulent and void as against creditors ; and the inducements to the conveyance of the land seem not to have been altogether pure. When the elder Dunlap endorsed the notes upon which the judg- ments ware obtained, it was, no doubt, done with the knowl- edge of ihe son, and the endorsement was accepted by the creditor, under the presumption (no doubt) that he 378 CASES IN CHANCERY, 4S1 was the owner of the real and personal estate of which ha IE 15. was then the visible possessor, and had been for *naany years ^<»-s,-^^ the actual owner. The son was brought up in his father's Boyh family, and taught his trade, and he continued lo reside and iy^^i„f, work with his father until the age of thirty, and, in the r # ^g- i eye of the public, the father's possession of the real and ■■ personal estate remained unchanged. He continued to receive the credit due to the owner of the property, and the son took no step, long after the date of the deed, to prevent the public from resting on a misplaced confidence in the soundness of that credit. He permitted the accounts with merchants, as with Walton, and Root fy Davison, to con- tinue to stand and accumulate in his father's name, and upon the exclusive credit of his father, long after the alleged ex- istence of the transfer of the estate to him. All the wit- nesses concur in the fact, that the father and son continued to reside together, down to the time of issuing the executions, in the same manner as they had always lived when the son was an avowed apprentice, or journeyman, and boarded with his father. In addition to all this, the deeds were never ex- hibited, by proof or registry, or otherwise made known to the public ; but it was a family transaction, very reservedly conducted, and attended with the continuance of the same exclusive, or at least mixed, possession. But the circum- stance that weighs most strongly against the good faith and purity of the motives of the parties, is the fact that the debt of the plaintiffs existed against the father before the date of the conveyance. This appears clearly from the tes- timony of Walton and Leslie, and Thomas Dunlap. Adair was the person for whom the father was surety for the very debt from which the judgments originated ; and when Adair failed, the father complained that it was hard for him to pay the debt, as Adair had deceived him, and that he had offered to pay half of it ; but, as Gardner had refused the proposition, he would not pay. And during the time of this repugnance in the elder Dunlap to pay, the son insisted upon the conveyance of the estate to him. It may be that this was done to give the son the preference as a *bona fide [*4S6 ' creditor, but when so many inauspicious circumstances oc- cur, the claims of the son ought to be established with very great precision and certainty. He is not entitled to the in dulgence of Inuch presumption in his favor. The claim 'of the son, at the date of the deed, consisted of arrears of wages as a journeyman, and of expenditurcb upon the land. 1. His wages for three years and eight months, according to his answer, did not exceed 583 dollars. The fact of his working for that period, after le was of age, and the reason- 379 186 CASES IN OIIANCERY. 1815. ablenesB of the charge at 18 dollars a month, exclusive of -._.*— s^—*-' boarding, is sufficiently supported by proof. SoTTD 2. The charge of repairing the buildings on the lot, prior iiuNLAP. *° *^® summer of 1810, is unsupported by proof. There is no evidence of actual payments, nor any data, by which any can be computed. The testimony, on this point, is perfectly vague ; and, indeed, one of the witnesses, (^TayJer,) who worked in the shop, says, that the buildings, prior to 1810, were erected by the father ; and when we consider that the son, who had been in partnership with that same witness, had stock to the amount of 1,200 dollars, which, in 181Q, he carried to Canada, there is no reason to presume any con- siderable previous expenditure on his father's account. It was incumbent on him to have established the fact, and he has totally failed. But there is no doubt that the son built the painter's shop, on the premises, in the autumn of 1810. All the witnesses concur in this fact; and for that improve- ment he ought to be refunded. It was, doubtless, done under the promise and expectation of a deed ; and the land may be considered as an equitable pledge for his reimburse- ment. The only difficulty is in ascertaining the amount of tliat expenditure. Holland was the carpenter whom he employed to build the shop; and he says "the probable expense was about 800 dollars." This testimony is not sufficiently precise, but it is the best that this case has afforded. I * 187 ] *There was, likewise, the sum of 75 dollars, which the younger Dunlap paid for the purchase of a small addition to the lot from L. Claw ; and, if we deduct from these charges the amount of the goods and chattels which he has wrong fully received, and which were not sold by the sheriff, anil, are enumerated in the bill of sale, and there valued at 343 dollars, the account will stand thus : Wages due, $58.3 Erecting shop, 800 Paid L. Claw, 75 $1,458 Credit on the bill of sale, .... 348 $1,110 This sum of 1,110 dollars is the utmost for which I can, or ought to, permit the deed to stand as a security. I shall, accordingly, allow to the defendant, WilMum Dun- lap, jun., his election, to pay, within 30 days from notice to his solicitor of this decree, the amount of the judgments aeo CASES IN CHANCERY. 4bV apon the four notes mentioned in the bill, together with in- 1815. lerest thereon, and the taxable costs of the plaintiffs, at law, v_,»--v— ^.^ and in this Court; and that the plaintiffs shall, thereupon, WiLHAMson convey to him, in fee, the premises mentioned in the deed -wiLi^ijisoN of the 24th of December, 1810, and dehver into his possession the deeds of their title from the sheriff. But in default of such payment, or tender, that the defendant shall, within 30 days thereafter, convey the premises, in fee, to the plain- tiffs ; and, at the same time, deliver into their possession the deed of the 24th of December, 1810, without being chargea- ble with any previous rents and profits, on condition of a previous payment, or tender, to him, by the plaintiffs, of the sum of 1,110 dollars; and, in that case, neither party shall *have costs as against the other. And if neither alternative [ * 488 ] be complied with, as aforesaid, that then the bill in this cause shall stand dismissed without costs. Decree accordingly. lETER Williamson against Jane Williamson. [See 6 Paige 210.] A decree of divorce, a vinculo matrimonii, though the adulteiy is fully ascertained, is not granted, of course, in all cases. If the husband, subsequently to the adultery, cohabits with his wife, with knowledge of her guilt, it is a remission of the offence, and a bar to a divorce. Lapse of time, also, or a long acquiescence of the husband, without any disability on his part to sue, will be a bar to a prosecution for a divorce. A.S, where a husband having been absent from his wife for eight yearSj in a foreign country, and she, supposing him to be dead,,maiTied another person ; and the first husband, afterwards, returned, and finding his wife cohabiting with her second husband, without taking any ste[)S to obtain a divorce, went abroad and continued absent for twenty years, and then, returned again, and filed a bill for a divorce against his wife who was living with her second husbatid, by whom she had several children ; the Court, though the counsel of both parties consented to a decree, dismissed the bill, with costs. THIS was a bill for a divorce. f The plaintiff stated, that, Juiii nih. in 1780, he was married to the defendant, in the city of Neiv- t See wuiiam York, where they both resided. That at the time of adul- ^mu,'p. sS™"^ tery charged, the plaintiff was, and still is, an inhabitant of, and resident within this state. That during the absence of the plaintifi, on a sea voyage, the defendant, on the 20th of 381 483 CASES IN CHANCERY. 1815. April, 1814, committed adulteify with Philip Par sien.^, and K^go—s^'^'^^ had abandoned the plaintiff,, and since lived witfi the said Williamson Parisian, (SlC. Williamson, The answer of the defendant admitted the marriage with the plaintiff; and that, while the plaintiff was absent, on a foreign voyage, having heard, and believed, he was dead, , * 489 J *she married with Philip Parisien, and had since lived, and still lives, with him as his wife. The master's report stated, that the defendant was the wife of the plaintiff; and that she had, for a long time, co- habited with P. Parisien^ as his wife, and had a child by him, and still lived and cohabited with him; and that the adultery charged was sufficiently proved. A witness, whose testimony was stated in the master's re port, deposed, that the defendant married Parisien some years ago, on a report of the death of the plaintiff, and had since lived with him as his wife, and had a child by him, about four years old '; that the plaintiff returned to New- York about three years before, or in June, 1812, and solicited the defendant to return to him, which she refused to do. The ajidavit of the plaintiff, which was admitted in evi- dence by the consent of the counsel of both parties, stated, that the plaintiff resided in New-York from 1779 to the 29th of June, 1783; that he married the defendant in 1780, and had three children by her ; that he was absent from 'the state from June, 1784, to June, 1792; that, at his departure, he left the sum of 240 dollars with the defendant, and had fre- quently written to her during his absence; that he took with him all his other property, and lost it by shipwreck, which induced him to remain absent until he could earn something for himself and family, which having effected, he returned to New-York, in June, 1792, and found his wife cohabiting with Parisien. This event induced him to depart again from New-York, and he remained absent until Jwne, 1812, when he returned, and has since resided, and intends permanently to reside, here. The bill and answer were filed in June, 1815, on the same day, by consent; and the report of the master, and the affi- davit of the plaintiff, were all submitted to the Court, hy con- sent ; the counsel, on both sides, expressing their v ishes that a /ivorce might be granted. f * 490 J * Tucker, for the plaintiff. Burr, for the defendant. The Chancellor. The plaintiff comes not as a novvi hospes into this Court. It is but a few weeks since I dismiss 382 CASES IN CHANCERY. 490 ed the bill between these very parties,! and a new suit for a 1815. divorce has since been instituted, by consent, and brought to x^^-~v^->«i^ a hearing, according to its regular order, on the calendar ; Williamson and from some negotiation, or accommodation, which does •w,i,Jl„so'« not appear, and to which I mean not to be a party, by giving t Vide ante, p it any facility, a decree of divorce, though strongly resisted 389. in the former cause, appears now to be a matter of consent and solicitude on both sides. The facts have, accordingly, been very sparingly detailed, but those that are shown, ap- pear to me to be quite sufficient to disclose the merits of the case ; and if it had been otherwise, I should not have very wiUingly moved until they had been disclosed. To guard against all kind of improper influence, collusion, and fraud, it is the policy of the law not to proceed upon the ground of the consent of parties to a dissolution of the marriage contract ; and I shall consider this case precisely as if a se- rious controversy existed, and the parties stood adversely to each other, upon their respective rights arising out of the case. It is not for me to say, whether the statute is too severe in applying, indiscriminately, to every case of a divorce for adultery, the prohibition to the party convicted to marry again, though the adultery may have been committed by a remarriage after the absence of the other party for five years, and accompanied with very credible information, or with the presumption and belief, of his death. The eccle- siastical law will not admit any such presumption of death to excuse the guilt of the second marriage, holding it to be no public inconvenience that the wife should remain a widow ; but a very great inconvenience, and a violation of the sanctity of the contract, that she should marry again, *under any circumstances, during the lifetime of her first | * 491 ] husband. (Fournel, Traite de I' Adult, part 1. ch. 6. art. 2. sect. 3.3 In Holland, however, they have guarded against the occurrence of this inconvenience, by a general ordinance authorizing the Courts to allow a second marriage, if the husband is absent for five years without being heard of. (^Voct, lib. 23. tit. 2. de ritu nuptiarum, sect. 99.) But whatever opinion may be entertained of the policy of that provision in our statute, I cannot think the statute intended that the party injured should be entitled to come, at any time, and in every case, and to put the cause on the single dry question, Has an act 'of adultery, in judgment of law, been committed .'' Nothing could operate more unjustly than such a construction. The statute says, that, after the truth of the adultery charged shall have been ascertained, "it shall be lawful for the Court " to decree a dissolution of the marriage. This language may, and ought to be under- stood as leaving to the Court the exercise of that sound "-'iscre- 383 491 CASES IN CHANCERY. 1815. ^^^^ which the nature of the case, and the principles of v^^-.^^-»»^ equit y , might require. The general rules of the English juris- Williamson prudsnce, OH this Subject, must be considered as applicable, Willi' so under the regulations of the statute, to this newly-created branch of equity jurisdiction. It is not to be supposed that the statute intended, in all cases of adultery charged and proved, that the Court should be absolutely bound (no matter under what circumstances) to grant to the prosecutor the effect of a suit carried on for his own benefit. It is to be recollected, that a bill for a divorce is not a public, but a private prosecution, brought at the instance of the party aggrieved, and subject to his control. Cases may be stated oif adultery proceeding from surprise, error, the previous consent of the husband, or followed by his subsequent rec- onciliation, or long acquiescence, in which it is admitted, by all the authorities on this subject, that it would be repug- nant to the principles of reason and justice, that the husband should be permitted to prosecute his wife ; and by the ec- ' * 492 ] clesiastical *law) the husband cannot obtain a divorce for adultery, if the wife recriminates, and can prove infidelity on his part. (^Oughton's Ordo Judiciorum, vol. 1. tit. 214. Burn's Ecclesiastical Law, tit. Marriage, sect. 11. Fournel, Ti-aite de l' Adult, p. 71. 128. Dig. 48. 5. 13.5.) It was observed, in reference to one of the instances I have sup- posed, by the late Ch. J. Parsons, (and it is not in my power to avail myself of more respectable authority,) that it would be unjust and immoral for the husband to claim and enjoy the society of his wife after a knowledge of her offence, and then be permitted to cast her off for that same offence, and dissolve the marriage. (6 Tyng's flep. 147. Anon.) It is, indeed, a general principle, recognized as every where pervading this b^-anch of jurisprudence, that subsequent co- habitation with the wife, with knowledge of her guilt, is a remission of the offence, and a bar to a divorce. I think enough has been said to show, that a decree for a divorce is not to be taken as of course, though the fact of adultery may have existed ; and I cannot but persuade my- self, that when the statute created a jurisdiction in this Court, for the cautious and limited exercise of the power of divorce, it intended that those settled principles of law and equity on this subject, which may be considered as a branch of the common law, should be here adopted and applied. The lapse of time will, also, and on the soundest princi- ples of justice and policy, form another exception to the right of prosecution for a divorce. An acquiescence of five years, without any existing disability, was, by the civil law, and is, by the law of the continental nations who have adopted the civil law, a bar to a prosecution for adultery- SSI CASES IN CHANCERY. 49'^ {Dig. 48. 5. 1. 29. et 31. Voet, h. t. n. 22. J5irf, lib. 44. 1815. 3. n. 7. i«/«e. Fournel, Traite de I' Adult, p. 67.) The x_i.^>v— iw injured party is presumed to have pardoned or remitted the WitiiAMsos offence. We find no certain rule on this point in the Eng- williamsoh lish law, because, since the time of Elizabeth, (see Rye v. *FuHambe, Moore, 683.) divorces, a vinculo, are not granted [ *493 ) for adultery, except by act of parliament ; but a limitation is imposed by the rules of parliament, as by a standing order of the commons, (of the 10th of June, 1773 ; and see the old rule in 8 St. Tri. 35. n.) no bill of divorce for adultery can pass until an action for crim. con. has been prosecuted at law, to judgment, or sufficient cause shown why it has not ; and we know that six years is a bar to such a suit. Long acquiescence will, under out law, bar a prosecution for any other civil injury, and why not for this ? Why may not the Court in this, as in other cases, raise presumptions in bar by analogy to the statutes of limitation ? We may, perhaps, venture to say, that to sustain a bill of divorce for adultery, after the husband (as in this case) has acquiesced under a knowledge of it, for twenty years, would be repug- nant to the institutions of all mankind. In the present case, the husband returned in 1792, and found his wife recently married, in consequence of his long absence of eight years, and presumed death. Why did he not then reclaim her, or prosecute ? He did neither ; but de- parted agajn from this state, and lived continually abroad, for 20 years, acquiescing in this second marriage, and suffering her offence to aggravate and become inveterate. She has had several children, and has spent the best part of her life in connection with her present partner. If ever lapse of time, or long acquiescence, formed a just bar to this kind of pros- ecution, this is one. Can it be fit, or decent, or useful, that, without any reason or apology for this delay, he should now be permitted to come into Court to expose and disgrace this woman ? Most certainly not ; and I shall, accordingly, decree that this bill be dismissed, with costs. Decree accordingly. Vol. I. 49. 385 494* CASES IN CHANCERY. 1815. Earl V. Griu. August 8th. [ * 495 ] *Earl and others against Grim and wife 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 intereai to be annually paid, in equal proportion, to A., B., and C, and the sur- vivors of them, without limitation of time, but was silent as to any further disposition as to the principal or residuum of his real estate ; this was held to be a bequest of the priiicipal as well as the interest; it being appai'ent, from the inti'oductojy, and other clauses in the will, that the testator did not intend to die intestate, in that respect. MARGARET JAUNCEY, of New- York, widow, being possessed of considerable real and personal estate, on the 29th of August, 1798, made her will, the parts of which, material to be stated, were as follows: "My worldly sub- stance I do dispose of as follows : To my step-daughter, Sarah Jauncey, I do give and bequeath such a portion' of my household furniture," &,c. " The rest of my household," &c. " I direct my executors to sell," &c., " and apply the proceeds thereof to the discharge of a debt secured, by mortgage, on my house fronting the street formerly called jSTj?)^ street," &c. "Whereas it hath pleased Almighty God to bless some of my connections with affluence, insomuch, that a share in the property I may leave at my death would not add to their comfort, I have, therefore, concluded to distribute my substance among such of my relations, as, in my judgment, stand most in need of it," &.c. " I do give and bequeath to my said step-daughter, Sarah Jauncey, during the term of her natural life, the use, rents, and profits of my dwelling- house and lot of ground," &c. " fronting the street formerly called King, now Pine street," &c., " in which she has al- ready had one fifth part by right of inheritance from her father," &c. " And, after her decease, it is my will that the said dwelling-house," &c. " shall be sold by my executors," &C., "and the net proceeds, after paying all- charges, shall be *divided as follows : To my nephew, George Peck, one sixth part ; to my nieces, Ann Alstyne, Phoebe Earl, Ann Willi!. and Jane Willis, each one sixth part, and to the survivors of them ; and the remaining sixth part I do give to David Grim, the husband of my niece Mary," &c. " And I do further will and direct, that my executors may, at any time during the life of the said Sarah Jauncey,- with her consent, sell and dispose of the said dwelling-house," &c. ; " and, in such case, the moneys arising from the sale thereof (af\er discharging all encumbrances) shall be put out at interest," &c., " and the interest paid annually to the said Sarah during her natural life ; and, after her decease, the said 386 CASES IN CHANCERY. 495 moneys should be equally divided, as is above directed, and 1815. to the survivors of them." " Whereas the house in which \^^f^^^—^^ I now reside, in Beekman street, is my property, I do will, Earl and direct my executors to rent or sell the same, as they shall q^',^ think fit," &.C. ; " and in case of renting the same, the moneys arising therefrom shall be divided as follows :" (To her nephew and nieces, and to D. Grim, a sixth part each, as directed in regard to the house in Pine street ;) and in case of sale, she directed as follows : " The moneys arising from the sale, after paying all charges, shall be put at interest on good security, and the interest thereof be annually paid, in the proportions above mentioned, to the said George Peck," &.C., " and the survivors of them." And after empowering her exer.utors to execute deeds to purchasers, she added, '•■ My will further is, that the rents due, or to become due, on my house in Beekman street, &c. shall belong to my step-daughter, Sarah Jauncey, until the Jirst day of May next ensuing after my decease ; and if any thing be remaining of my personal estate, after paying off the mortgage, &c., I hereby give and bequeath the same to ray said step-daughter, Sarah Jauncey." And the testatrix appointed David Grim, (the defendant,) William Khinelander, and Nicholas Bayard, her executors. Peck, the nephew, died before the testatrix, leaving two *children. Ann Alstyne died after the testatrix, and before [ * 496 J Sarah Jauncey, without issue. Grim, who was the acting executor, sold the lot in Beekman street, and received the money. The bill charged that the executors refused to sell the lot in Pine street, and to divide the principal of the pro- ceeds of the lot in Pine street, according to the will ; and prayed that Grim might be directed to sell the lot in Pine street, and distribute the proceeds of the sale, and of the lot in Beekman street, according to the directions in the will ; and that he might account, &c. The answer of Grim admitted, and set forth the will ; that the testatrix died in 1800 ; that he acted solely as executor ; that the testatrix was seised, &c., and the death of Peck and Ann Alstyne, as stated in the bill ; that Sarah Jauncey died in 1814; that the lot in Beekman street was sold for 3,580 dollars ; and there remained, after paying debts, 2,000 dollars, which had been put out at interest, and the interest received and paid according to the will ; that the lot in Pine street was unsold : and he submitted to the Court whether the plaintiffs, the legatees, were entitled to the principal arising from the sale of the Beekman street lot, not being advised as to the true construction of the will ; and he duly accounted, &c., and was ready to sell the lot in Pine street, tnd prayed the direction of the Court, «fcc. 387 496 GASES IN CHANCERY 1815. The case was submitted to the Court, on the bjll and >,,*»-v— ^^ answer. Eari. Grim. Wilktns, for the plaintiff. Slosson, contra. The Chancellor. This suit was brought for the pur pose of obtaining the direction of the Court as to the dis- tribution of the proceeds of the lands ordered to be sold by the executors. I * 497 ] *There is no question as to the Pine street property ; the difficulty among the parties has arisen respecting the house and lot in Beekman street. This lot having been sold by the executor, and the net amount, to 2,000 dollars, placed at interest, according to the directions of the will, it is admitted that the legatees' are enti- tled to, the interest, to be paid annually ; and the great po'ht is, whether the principal sum is, also, to be distributed among those legatees, under the will, which directs " the moneys arising from the sale to be put at interest, on good security, and the interest thereof to be annually paid, in the proper tions above mentioned, to the above legatees, and the sur- vivors of them." The will is silent as to any further dis- position of those proceeds ; and yet I am persuaded, from a consideration of the whole will, that the testatrix did not intend to die intestate as to those proceeds. In the intro ductory part of the will, she says, " My worldly substance 1 do dispose of, as follows ;" and, aftervvards, she uses these words, , " Whereas it hath pleased Almighty God to bless some of my connections with affluence, insomuch that a share in the property I may leave at my death would not add to their comfort, I have, therefore, concluded to distrib- ute my substance among such of my relations as, in my judgment, stand most in need of it," &c. And, in the devise of the proceeds of the two lots, she gives the net pro- ceeds of the former lot, out and out, to the same legatees ; and she makes no disposition over of the residuum of her real estate ; for the last clause in the will declaring, that " ii any thing be remaining of her personal estate, after paying off the mortgage," &c., " she gave it to her step-daughter, Sarah Jauncey," alluded only to the personal estate that she left, and not to those houses and lots ; and the clause is, also, to be taken in connection with one in the former part of the will, directing her executors to sell her furniture, plate, &c., and to apply the proceeds to the discharge of a mortgage on the Pine street lot. It was the surplus of those [ • 498 ] *proceeds that the last clawse in the will referred to. The 3S8 CASES IN CHANCERY. 498 moneys arising from the sale of the lot in BeeTcman street I81b. are, therefore, not touched by any residuary devise ; and if ^^^— s,— ^^ •they are not bequeathed by the part of the will now under Eael consideration, the testatrix, as to that principal sum, died q^j^, intestate, contrary to her manifest intent. The introductory part of a will is admitted to have some effect in the construction of the subsequent devises. Lord Talbot, in lbbetso7i V. Beckwith, (^Cases temp. Talbot, 151.) said, that the introduction served to " show that the testator had his whole estate in view; and if the will be general, and taking his words in one sense will make the will to be a com- plete disposition of the whole, whereas the taking them in another sense will make a chasm, they shall be taken in that sense which is most likely to be agreeable to his intent of disposing of his whole estate." But the intention, manifested in the introductory part, is not, alone, sufficient, without an actual devise. It must appear that the testator not only did not intend to die, but that he did not, in fact, die intestate. If, however, it be apparent, from the introductory part, that the testator meant to dispose of the whole of his property, and the expressions in the residuary clause may include the whole, they are to be- taken in the largest sense, in order to correspond with the introductory part. This was the rule adopted by Mr. Justice Buller, in Smith v. Coffin, (2 H. Black. 444.) The interest of the proceeds of the sale of the Beekman street lot is here given to the six legatees, and the survivors of them, without limitation of time. It is an absolute bequest as to the interest ; and is the money, then, to be always kept at interest, so that the legatees, and their representa- tives, may enjoy this interest forever ? There is no suffi- cient reason why this bequest should be limited to the life of each legatee. The better construction is, that this was a bequest, not in joint tenancy, but in common ; for the interest is given to them " in the proportions above mentioned," i. e. *to each one sixth part ; and the words, " and the survivors [ * ifjQ i of them," must be understood, consistently with this con- struction, to refer to such of them as should be living at the testator's death. (Stringer v. Philips, 1 Eq. Cases AK 293. jsZ. 11. IP Wms. 97. n. S. C. Russell v. Long, 4 Ves. 551.) May we not apply to this case the rule acknowl- edged throughout the books, that a devise of the rents and profits of land is a devise of the land itself? (8 Co. 95. b. Cro. Jac. 104. 1 Ves. 170. 523.) In Newland v. Shep- herd, (2 P. Wms. 194.) the testator devised the residue of his real and personal estate to trustees, in fee, in trust, to pay the interest thereof for the maintenance of his grandchildren until the) should come of age, or be married ; and he went 389 199 CASES IN CHANCERS. 1815. no further, nor made any other disposition of his esbite ; ana ^s.rf^-N/^*i_^ yet this was held to pass the absolute property to his grand Uhderhill children, after the age of twenty-one. This case has been Van Cokt- questioned, and, perhaps, very justly ; for there was an ex- r.AHDT. press limitation of the period of the payment of interest to the minority of the childrert ; but, in a case in which there ia no such limitation, I apprehend the decision would be deemed correct. The doctrine in Philips \. Chamberlaine, (4 Ves. 51.) is entirely applicable, and justifies the construction which I am disposed to adopt. In that case, trustees were directed, by will, to pay the dividends and interest of cer- tain stock and funds to the legatees, share and share alike, and the survivor of them, as they attained the age of twenty- one, &c. ; and the master of the rolls said, he had never heard that where the testator gave, forever, and without limitation, the dividends and interest to accrue upon the residue of his personal estate, that it would not carry the whole interest; and he apprehended that where the divi- dends and interest of the residue were given, absolutely, to the trustee, on trust, to pay the interest and dividends to A., from time to time, without any limitation of duration, it would carry the principal, even without the aid of the subseqiient part of the clause. f * 500 ] *The proceeds of the BeeJcman street lot, principal as well as interest, are, therefore, to be distributed by the executor, equally, between the three plaintiffs, Phoebe Earl, Ann Wil- lis, and Jane Willis, and the defendant, David Grim, and the personal representative of Ann Alstyne, deceased. The share o(Ann Alstyne was vested in her, at her death ; and the share of George Peck, who died in the lifetime of the testatrix, went equally to all the surviving legatees. Decree accordingly. A. & T. Underbill against ViN Cortlandt and others. It is not of course to enlarge the rule to pass publication, and it wi.l be refused where there has been great delay : but it was granted, until the plaintiffs had sufficiently answered a cross-bill of the defendants, Augmtt I4ih. A MOTION was made, that the rule to pass publication^ in this cause, be enlarged, until the phintifis had put in 390 CASES IN CHANCERY. 50w and perfected their answer to & cross-bill filed by the de- 1815. fendants. >..<^-n^-.^~s,-*,^ had the sale been in distinct parcels or lots. Woods Sackett, son of the defendant, Sackett, who was sworn as Mjn^'elt a witness for the plaintiff, stated, that the premises, at the time of the sheriff's sale, were worth about 12,000 dollars, and were divided and laid out into lots, to the map of which he referred ; and that, at the time of the sale, they were divided into five separate lots by fences. That he was pres- ent at the sale, and the sheriff declared that he sold by virtue of the three executions in favor of Austin &f Andrews, Griswold, and Duryee If Heyer ; that the plaintiff requested that the premises might be sold in parcelsj and Monell said he did not know him in the business. The sheriff declared that he should sell all the right of Sackett, in the premises ; that the plaintiff informed the sheriff, and those present, of [ * 505 ] his deed, and requested the *sheriff to sell on the first judg- ment only ; that it was generally known at Newburgh that the premises were divided into town lots. D. Wright, another witness for the plaintiff, who was ac- quainted with the premises, and was present at the sale^, said that they had been laid out into building lots, but he did not recollect seeing any cross fences; that the plain- tiff requested the sheriff to sell in narcels, and on the first judgment only ; that Mon'eil, the defendant, said he did not know the plaintiff in the business, and directed the sheriff to proceed and sell all the premises together, under all the judgments ; that Skght gave similar directions to the sheriff. The sale was near by, and 'in view of the premises.' The map, whiph was produced, was dated November, 1812 jP. a. Jay, for the plaintiff. Burr, contra. The Chancellor. The suit is brought" to set aside the sheriffs sale, on the ground of fraud. Thie plaintiff has not made out a case of actual fraud ; and if the sale is invalid, it must be because the premises described in the case were sold contrary to law, by being sold entire, and not in parcels, as the plaintiff requested. I have no doubt of the value and solidity of the rnle, that where a tract of land is in parcels, distinctly marked for separate and distinct enjoyment, it is, in general, the duty of the officer to sell by parcels, and not the whole tract, in one eYitire sale. To sell the parcels feparately is best for the interest of all the parties concerned. The prop- erty will produce more in that way, because it will accom- modate a greater number of bidders, and tends to present 394 CASES IN CHANCERY. 50h odious speculations upon the distresses of the debtor. Nor lSi5. does the officer act within the spirit of his authority, if he ^^-n,->i^ sells more than is requisite to satisfy the execution. To Woods *sell a whole tract, when a small part of it would be sufficient, mohell. or, probably sufficient, for the purpose, is a fraud that ought r * 506 I to set the sale aside. The principle which I have suggest- ed has received a judicial sanction ; [Rowley v. Webb, 1 Binney,61. Executors of Stead v. Course, 4 Crunch, 403. Hewson v. Deygert, 8 Johns. Rep. 333.) and whenever a case comes fairly within the reach of it, I shall very willingly adopt and apply it. But I do not perceive that the circumstances of this case are sufficient to warrant the application of the rule. The plaintiff was present at the sale, and became a bid- der. He requested the sheriff to sell the premises by lots, and not in one entire parcel ; but he produced no map or other description of the ground as laid out in lots. In the deed of trust, under which the plaintiff claimed title, and which had been executed to him by the defendant in the execution, about six months before, the ground was not des- ignated by lots, but was described as a " certain lot, piece, or parcel of land, known and distinguished on a map, &c. as lot No. 34, and the easterly end of lot No* 38, contain- ing three and a half acres, and bounded," &c. And when the plaintiff took possession of this " said tract of land," under his deed, he leased the same as one entire parcel to /. Hasbrouck ; and so it appears to have been enjoyed at the time of the sale. The sale is represented as having been made on the land. To bring the sheriff in default, or to charge him with an abuse of trust, the plaintiff, who was then in possession, and claimed the land, ought, at least, to have furnished the sher- iff with clear and distinct proof of the division of the three acres into town lots, and of the size and description of these lots, and that the same was the act of the owner. So small a tract, and under the occupation of one tenant, will not, without other circumstances, raise the presumption of an abuse of power in the sale. One of the witnesses says, that the premises, at the sale, were divided into five lots, by fences ; but *the other witness, who was also present at the sale, [ * 507 ] says, he does not recollect any cross fences, and if they were then visible, the whole was still in the occupation of one tenant ; those fences could not have been intended for the evidence of any division in pursuance of the map to which the witnesses refer, and which is made an exhibit in the cause ; for by that map, the ground was divided into a great number of small lots ; and it bears date within three months nf the sale 395 507 CASES IN CHANCERY. 1S15. There is another objection which has been suggested ^<-v-«fc^ The sheriff had in his possession, at thti time of sale, execu- DuNscoMB tions on three judgments against the same defendant, two PiiNscoMB. of which were older; and the other younger, than the deed of trust to the plaintiff; and he did not discriminate distinct- ly, at the outcry, that he sold under the oldest execution exclusively ; but it is left to be inferred, that he sold, gene- rally, under those three executions all the right and title of the defendant. There was no concealment in the case of any fact. The executions were all bnown and mentioned, and I do not perceive any abuse of power in this circum^ stance that can affect the sale. It is admitted that the sheriff sold under the first execution. The deied to the pur- chaser mentions , the two first executions, and them only ; and as the first execution would pass all the title of the de- fendant, every bidder knew, or was bound to know, that his title would have been perfect under the sale, subject only to encumbrances prior to the first execution, and of such en- cumbrances every one had the means of knowledge as, well as the sheriff. I see no suflicient ground, therefore, upon which this bill can be sustained ; and it must, accordingly, be dismissed, as to all the defendants, with costs. Decree accordingly. [ 5Uc I *DuNScoMB and others against the Executors of DUNSCOMB. [See post *aS3.] Execiitoi-s and other trustees are chargeable with inferM/, if they havb made use of the money themselves, or havje been negligent, either m not paying over the money, or in not loaning or investing it, so as to rerjder it productive. The time from which interest is to be charged, in case of negligence, varies according to circumstances. Six months from the, time the money was received, is a reasonable period, in most cases, from which to charge interest against the trustee. Where a testator devises his real estate to his daughter, and empowers and directs his executors to sell the real estate, and the daughter mar- ries and has a child, which dies, and the mother also dies before the sale of the estate, leaving a husband, he is entitled, as tenant by the coiirtesy, to have the interest of the money arising from the sale secured and paid to him, during life, in lieu of the rents and profits of the land. Though the general rule is, that executors must pay coats when they pay interest, because they are in default ; yet, where the devisee, or cestuy que tiiist, demand more than he is entitled to receive, and the 39to CASES IN CHANCERY. 50H executor i)roperly submits to the direction of the Court, he will not be 1815. compelled to pay costs. n_^-n^-^/ Ddnscoms THE bill stated, that the plaintiffs are the only surviving j)„„sioMB children and heirs of Andrew Dunscomh, son of Daniel Duns- g^t 27ih. comb, deceased. That Daniel Dunscomb, on the 7th of January, 1795, made his will, and devised the one fourth of all his estate, real and personal, to his son Andrew; and if he died before the* testator, then his share to go to his children, in equal proportions. The testator gave to his executors power and direction to sell his estate, and divide the proceeds according to his will. The executors, on the death of the testator, took possession of the estate, real and personal, and sold the real estate, and received the proceeds, and also the rents and profits before the sale. Andrew, at his death, left five children, two of whom, Catharine and Andrew B., died. Catharine married one West, who is still living, and by whom she had one child, since deceased, ' *without issue. Andrew B. died after his sister, under age, [ * 509 and without issue. The three surviving children, plaintiffs, claim the share that would have come to their father under the will, of which they alleged there remained due to them 1,731 dollars and 84 cents, with interest; and they prayed for an account, and that the executors might be decreed to pay the amount, with interest. The answer admitted the will, the receipt of the rents, &c., the sale of the real estate on the 31st oi January, 1804, that Mrs. West never had actual possession of the real estate before it was sold ; but there was no adverse possession, the possession being actually held by the defendants, as co-de- visees and co-tenants, in common ; that Mrs. West died two days before the sale of the real estate ; and the other persons at the times mentioned in the bill ; that the husband of Mrs. West is still living, and resided', and still resides, out of the state ; that the share of the net proceeds due to Mrs. West, was 1,046 dollars and 36 cents; that on the 23d of April, 1805, the defendants paid to the guardian of the two infant plaintiffs, 3,500 dollars, leaving 685 dollars 47 cents, which the defendants have always been, and are still, ready to pay to the plaintiffs, if right and proper ; that the plain- tiffs are next of kin of Andrew B. Dunscomb, deceased ; that the husband and administrator of Mrs. West cleiimed the 1,046 dollars and 36 cents, being her share, as personal estate ; and the defendants denied the claim, as the real estate was not sold at the time of her death ; that hei hus- band now claims interest on the amount, as tenant by the courtesy, for life, and that the principal ought to be put out on security, for that purpose ; that the plaintiffs do not ac- 391 ^9 CASES IN CHANCERY. 1B15. quiesce in either claim of the husband of Mrs. Weri, and ,.rf^-^,,-^_' the defendants do not know to whom the money can be paw DuNSGoMB with safety. DuHscoMB "^^^ defendants denied that they ought to pay interestt as they had always been ready to pay the principal, wIicij advised or directed by this Court how the same ought to be I * 510 ] *paid ; and they claimed to have their costs allowed to them out of the fund in their hands. The cause was submitted to the Cerurt on the bill and an- swer. Twingj for the plaintiffs. Riggs, for the defendants. The Chancelloe.. 1. The plaintiffs are entitled, of course, to the sum of 685 dollars and 47 cents, and the only point, on this part of the case, is, whether they are en- titled to interest upon that sum, which has lain unproduc- tive for many years in the hands of the defendants. Why it was not paid to the guardian of the plaintiffs, (who was also guardian of Andrew B. Dunscomh, in his lifetime,) and to whom the other portion of the moneys belonging to them was' paid, does not appear. The executors say it has al- ways been kept in readiness to pay to the persons entitled, when demanded. But this is no sufficient excuse. If they had met with any real doubt or difficulty, as to the person authorized to receive, they could have applied to the Court for advice, or brought the money into Court. If the money (as we are at liberty to suppose) has been mingled with their own moneys, it has answered the purpose of credit, and the rule is settled, that executors, and all other trustees,' are chargeable with interest, if they have made use of the money themselves, or have befen negligent, either in not pa;ying the money over, or in not investing it, or loaning it, so as to render it productive. (Treves v. Townshend, 1 Bro. 384. Mocke v. Hai-t, 11 Ves. 58.) The rule is founded in justice and good policy; it prevents abuse, and it indemnifies against negligence. This was also the rule in the civil law, when the guardian was guilty of negligence in suffering the money of the minor to lie idle. Quod si pecunia mansis' set in raiionibus pupilli, prastandum quod bona fide per- '* 511 ] cepisset, *auf percipere potuisset: sedfcenori dare cum potu- isset, neglexisset. {Dig. 26. 7. 58.) The defendants must, in this case, account for interest on the above principal sum ; and as to the time from which in- terest is to be computed, in such a case of negligence in suf- fering the money to lie idle, there does not appear t? tie 398 CASES IN CHANCERY. 511 any absolute rule, and the time must vary according to cir- 1815. cunistances. It would be laying too heavy a hand upon >^^-v.^-«.»_> executors, to charge interest from the moment money was Dhnscomb received. In some cases, executors are allowed a year to di-ks^cq^b look out for some due appropriation of the money, and in other cases it would be unreasonable. Here the executors show no pains or effort to discharge themselves of the money. I observe that six months was the time allowed, in a like case, by the civil law, to the tutor to invest the funds; (Domat, h. 2. tit. Tutors, ch. 3. s. 23. Voet, lib. 26. tit. 7. s. 9.) and if the defendants are charged with interest after six months from the time they received it, it will not be un- reasonable in this case, and I shall accordingly direct it. 2. The husband of Catharine P. West is entitled, as tenant by the courtesy, to the interest of the proceeds of her share of the real estate, which was sold after her death. His right becr^me perfect upon her death, and he was seised in fact, by the seisin and possession of the co-devisees, as tenants in common with her, and claiming only their undi- vided shares with her under the will. It will, therefore, be the duty of the defendants to place the sum of 1,046 dollars and 36 cents at interest, on good real security, or invest it in public stock, and pay the interest thereof to William West, as the same shall from time to time accrue, during his nat- ural life ; and the plaintiffs, and their lawful representatives, will be entitled to the principal, upon his death. The case of Sweetapple v. Bindon, (2 Vern. 536.) contains the rule applicable to this case, allowing the interest of money to be settled upon the tenant by the courtesy, in lieu of the profits of the land. *3. The only remaining point in the case is as to costs. [ * 5! 2 It does not follow, as an inevitable consequence, that execu- tors must pay costs in all cases where they must pay interest ; though the general rule is, that they must pay costs when they pay interest, because they are in default. (1 Ves.jun. 294. 7 Ves.jun. 129. 11 Ves.jun. 61. 582. 13 Ves. jun. 402.) If the demand of the plaintiffs had been con- fined to the sum of 685 dollars and 47 cents, the defendants nught to have paid costs ; but the demand went further, and embraced a larger sum, to which the plaintiffs are not enti- tled until tlie death of the tenant by the courtesy. That de- mand has been successfully resisted, and it was a question properly submitted by the executors to the direction of the Court. Under the circumstances of the case, I cannot allow costs to either party, as against the other. Decree accordingly. 399 612 CASES IN CHANCERY. 181£. Shotwell against Murray. Shotweli, V. Murray. A sale under a second, or junior judgment, is not, of itselij a waiver of the plaintiff's rights under a first or elder judgment. Every person is bound to know the law ; and where there is no mistake as to the fact, but only as to the legal consequence, and that on a collat* eral point, there can be no ground for relief, either by vacating a sale, or by a perpetual injunction against the exercise of the defendant's rights. A., having two judgments, of different dates, against G., issued execution on the second, under which the land of the debtor was advertised for sale by the sheriff. A. was present at the sale, and gave directions, but was entirely silent about the first judgment, and as to any intention, afterwards, to enforce it. B., having some claim to the land, in order to protect his title, became the purchaser at the sheriff 's sale, and re- ceived' a deed, though he previously knew of the existence of both judgments. • B. filed a bill for a perpetual, injunction against A.'s proceeding under the first judgment, on the ground of mistake, or fraud; but the bill was dismissed, with costs. ifep«. 27ih, ON the 8th December, 1807, Munro obtained a judgment in the Supreme Court against Green, which became a lien on * 513 ] *land of Green, in the town of Schuyler, in Herkimer county, being lot No. 50. in Cosby's manor. In August, 1811, a lest. fi. fa. was issued on the judgment, and the lot, with other lands, was conveyed, by the sheriff, to the plaintiff, as the highest bidder, on the 12th of December, 1812. The defendant, afterwards, purchased two judgments against Green., which were duly assigned to him, one of them dock- eted the 24th of April, 1799, and the other, on the 20th of December, 1803; and, in 1813, the defendant issued an ex- ecution on the second judgment, and directed the sheriff to sell the lot in question ; and the same being exposed to sale by \the sheriff, the plaintiff, in order to protect his title, became the purchaser at the second sale, for 2,700 dollars, and re- ceived a deed from the sheriff. The bill further stated, that the defendant attended at the last sale, and bid, and gave directions to the sheriff, but did not then, or at any prior time, make known that he should have any further or other lien on the land after the sale, or that he should again proceed to sell the same under the other judgment; nor did he in any manner declare or intimate, that such sale was made subject to the prior judg- ment of April, 1799, although the defendant, on that occasion, and at other times, admitted that he was the owner of both judgments. The plaintiff alleged, that he purchased the land at the second sale, in full confidence that the premises would, thereby, be exonerated from all further lien, by meana 400 CASES IN CHANCERY. 513 ot the judgments held by the defendant. But the defendant, 1815. however, afterwards, issued an execution on the other juilg- v-^>^v-«w ment, and was proceeding to advertise the land again for sale. Shotwell The bill prayed for an injunction to stay all proceedings on Murray. the second judgment and execution of the defendant ; and that the same might be made perpetual ; and for general relief. The defendant, in his answer, admitted that he was present at the sale, and bid, and gave directions to the sheriff; *and that he did not make known that he should have any [*514] further or other lien on the land ; or that he should again proceed to sell it under the prior judgment; and that • he did not declare, or intimate, that the sale was made subject to the lien of the prior judgment ; but he insisted that he did not thereby relinquish his lien on the prior judgment ; and averred, that the plaintiff knew, at the time, that he was the owner of both judgments, and had applied to him to purchase them. He, also, admitted, that he had 'ssued an execution on the other judgpient, and had directed the sheriff to levy again on the same lot, and intended to proceed in the sale. It was proved that the plaintiff had applied to purchase the judgment of April, 1799, before the same was assigned to the defendant. Riggs and Slosson, for the plaintiff. They cited Livings- ton v. Byrne, 11 Johns. Rep. 555. Heivson v. Deygert, 8 Johns. Rep. 333. Wells, for the defendant. The Chancellor. The question is, whether the de- fendant lost the benefit of the lien of the elder judgment by selling the land under a younger judgnient, without disclosing, at the time of sale, that he held, and intended to hold, the former judgment as a subsisting and valid encumbrance.. The defendant admits that he attended the sale, and gave directions concerning it, and was himself a bidder ; and that he was silent on the subject of the prior judgment. If the lien of that judgment, on the land so sold, be lost or impaired, it must be because his silence amounted to fraud in suffering the plaintiff to purchase under some erroneous impression, which it was his duty to remove ; for it will hardly be contended, that if a creditor has two judgments upon the same land, the mere fact of his selling under the last, is, per se, a waiver of *his rights under the first judgment. But [*515] here was no fraud in the case. The plaintiff admits, in his bill, his knowledge, at the time, of the existence of the former Vol. I 51 401 515 CASES IN CIIAISCEKf. 1815. judgment, and of its assignment to the defendant. The fad >-.»-%,.—<.»_' of his knowledge is also prdved. The allegation of the Shotwell plaintiff is, that he purchased, not in ignorance of the prior Murray judgment, but in confidence that he should be enabled to hold the land free, and discharged from that judgment. Here was, then, no mistake in point of fact. , According to the plaintiff's own showing, he was only under a mistake in point of law ; and that mistake, not being produced by any fraud in the defendant, is not sufficient, of itself, to affect the former Hen, or the validity of the sale. The defendant (as we are at liberty to presume) might have previously commu- nicated to the plaintiff all the requisite knowledge, or he might have been informed by others of the plaintiff's knowledge, and, ha;Ve deemed it useless or impertinent to be reminding him of what he already knew. The case is by no means analogous to that of Livingston v. Byrne, (11 Johns. Rep. 555.) to which the counsel referred ; for there the party had, by public notice, promised a release of his rights to the purchaser ; and the setting up, afterwards, a prior and secret deed of trust, was inconsistent with the notice, and a sur- prise upon the purchaser. It is a decisive fact, in this cafe, that when the plaintiff made the purchase, he knew that such a prior judgment existed, and it was his business to make further inquiry on the subject of that judgment, if such inquiry should become material. It was not incumbent on the defendant to tell the plaintiff that the former judgment would continue to bind the land, notwithstanding the pur- chase, for that was a legal consequence with which the plaintiff must be presumed to have been acquainted. Possibly each party was speculating at the time, the one in buying, and the other in selling, on the supposed ignorance of the other, as to the operation of the sale on the former judgment. In a mor- al point of view, the duty of disclosure of each other's opinion [ * 516 ] was mutual. The defendant *has done nothing that amounts, in judgment of law, to a waiver of his lien, for here was no concealment of a fact of which the other party was ignorant ; and a person cannot be permitted to disavow or avoid the operation of an agreement entered into with a full knowledge of the facts, on the ground of ignorance of the legal conse- quences which flow from those facts. I assume this as a settled principle of law and sound policy. The effect of mistake of the law, in different cases, and under various and special circumstances, has been often and deeply discussed by the writers on the civil law ; and the text of that law, with Cujas and Heineccius, is to be foimd on one side, and Vinnius, Domat, D'Aguesseau, and Pothier, on the other, in respect to the question, whether money paid under a mistake of the law. and with knowledge of the facts, can be recov- 409 CASES IN CHANCERY. 31fi ered back. But this case is even clear of that question. 1815. Here is a purchase feirly made, and, admitting all that is f the Court. But the subsequent cases of Franco v. Bolton, (3 Ves. 368.) and of Gray v. Mathias, (5 Ves. 286.) are calculated to throw doubt once more on the exercise of this power. In the first of those cases, a bond was alleged to have been given for an illegal consid- eration, and the obligee had obtained a verdict at law. The bill was to have the bond delivered up; but it was, on demurrer, dismissed by Lord Loughborough, on the ground, that there was no necessity for the interposition of the Court, as the matter could have been pleaded, and the bond rendered null, at law. In the other case, the bond was void on its face, as appearing to have been given pro turpi causa ; but the Court of Exchequer refused a decree to deliver it up, and principally on the ground of the length and expense of such a remedy in equity, when the defence at law was irrefragable. The Ch. Baron observed, with some sensibility, t06 COMMl.SGS CASES IN CHANCERY. 52] that though equity might have i. concurrent jurisdiction, it 1815. was not fitting, in that particular case, to exercise it, as the v_^— s^-<*^' plaintiiT had a full defence at law ; and it was oppressive to Hamiltom seek, by a long and costly htigation in chancery, to have the bond delivered up, when, by the plaintiff's own showing, it was a mere nullity. In that case, the bond had never been sued at law, and the bill was dismissed, with costs. The equity power was afterwards asserted by Lord Eldon, in Bromley v. Holland, (7 Ves. 3.) and he dwelt much on the question of jurisdiction, and did not concur in the de- cision in Franco v. Bolton. He seemed to think the *ques- [ * 522 J tion had become settled, by a series of decisions, in favor of the authority of the Court to direct instruments to be delivered up, though they might be void at law. He ad- mitted there was some degree of contradiction in the cases, but he inclined in favor of the jurisdiction, even if the question had been res Integra; and though he could not say, if it was clear that no use could be made of the instru- ment, that was ground enough for the equitable jurisdiction, yet " it was not unwholesome that an instrument should be delivered up upon which a demand may be vexatiously made as often as the purpose of vexation may urge the party to make it." In Jackman v. Mitchell, (13 Ves. 581.) the equity jurisdiction was again freely exercised. ■ The bond there was given to secure one creditor the deficiency of a composition, and was never communicated to the other creditors, and had never been put in suit. The bill charged the bond to have been thus taken against the policy of the law, and in fraud of creditors ; and the counsel for the defendant, when speaking of the jurisdiction, observed, that if an instrument was void upon its face, the Court would not assume jurisdic- tion and cancel it, because it was void at law ; and that " there was no instance of a decree for delivering up a bond, ap- pearing upon the face of it to be void." Lord Mdon ex- pressly waived any opinion on that distinction as to jurisdic- tion, but said^that the bond was bad, because it was proved, aliunde, that it was intended to be kept secret ; and he ac cordingly decreed, that it be delivered up, and awarded costs against the defendant. I am inclined to think, that the weight of authority, and the reason of the thing, are equally in favor of the jurisdic- tion of the Court, whether the instrument is, or is not, void at law, and whether it be void from matter appeanng pn its face, or from proof taken in the cause, and that these as- sumed distinctions are not well founded. Jt is every day's practice, as the counsel observed, in French v. Connelly, (2 Anst. 454.) to order instruments to he delivered up, of *which a bad use might be attempied to be made at law, [ * 52y ' 407 523 CASES IN CHANCERY, 1815, although they could not even there entitle the holders to re- s^rfi—s.,-^^ cover. It is, indeed, not very apparent, why a doubt could Hamilton have been started in some of these modern cases as to the CoMMJNGs. general jurisdiction of the Court, when we consider the uni form tenor and language of the more ancient decisions, and which do not appear. to have turned upon the distinction whether the instruments were, or were not, void at law. In Whittingham v. Thornburgh, (2 Vern. 206.^ and Goddart v. Garrett, (ibid. 269.) and De Costa v. iScaridrel, (2 P. Wms. 170.) policies of insurance, procured by fraud, were ordered to be delivered up and cancelled, though t])e fraud was equally a defence at law. And in another case, (Laws. Law, Cases temp. Talbot, 140. 3 P. Wms. 391.) Lord Talbot ordered a bond to be cancelled, and- charged the de- fendant with costs, without deciding whether, ox not, it was good at law. But, while I assert the authority of thisCourt to sustain such bills, I am not to be Understood as encourag- ing applications where the fitness of the exercise of the power of the Court is not pretty strongly displayed. Per- haps the cases may all be reconciled on the general princi- ple that the exercise of this power is to be regulated by sound discretion, as the circumstances of the individual case may dictate ; and that the resort to equity, to be sustained, must be expedient, either because the instrument is liable to abuse from its negotiable nature, or because the defence not arising on its face, may be difficult, or uncertain at law,, or from some other special circumstances peculiar to the case, and rendering a resort here highly proper, and clear of all suspicion of any design to promote expense and litigation. If, however, the defect appears on the bond itself, the in- terference of this Court will still depend on a question of ex- pediency , and riot on a question of jurisdiction. It may, some- times, become essential to the perfect and tranquil enjoy- ment of private right, that this most important branch of equity power should be exercised in the one case as well as { • 5524 ] *m the other ; and it may be here observed, that in the case of Law v. Law, the whole consideration was spread out upon the bond, arid that, as the case is reported in Peere Williams, the Lord Ch. was inclined to consider the bond as void at law as well as in equity ; and yet he cancelled the bond without sending the parties to law. The learned coun- sel, therefore, in Jackman v. Mitchell, a.ppea.rio me to have hazarded too much in their assertion that there was no such case to be found. , The bond now in question comes within that case, for it is good on its face, and'void only from the facts disclosed by the defendant's answer. We can, consistently with the whole current of authority, direct it to be cancelled It is 408 CASES IN CHANCERY. 524 the more proper to do so, because it is, at least, doubtful, 1815. whether the pretended secret trust, under which it was s_^-s,/— >w taken, and the failure of that trust, would be received as a Hamiltox defence at law. My impression is, that it could not. But, comsi'incs in this Court, the evidence furnished by the answer is de- cisive. The defendant holds a bond for 27 years, and says it was given upon a trust which he ought not to disclose, and depends upon a contingency which has never happened, and which he says is only within the reach of possibility. Such a bond cannot be permitted to endure forever, and we can- not recognize any trust which is not disclosed, and is, there- fore, unknown. It is not convenient, or just, that such a bond should continue, with a pretension to the assets in the . hands of the plaintiff. It might embarrass their application, or weaken their security, or poison their enjoyment. It is immoral for a person to retain a bond which is useless to him, and an annoyance to others. This bond must, therefore, be delivered up, and cancelled. 2. The other bond, conditioned for the payment of 60 pounds, and on which a suit is pending at law, is shown, by the proof, to be no longer valid. It bears date on the 27th day of September, 1794, and is made payable on the 29th of the same month; and the answer of the defendant avers that *it was given for a debt justly due on a settlement of ac- [ * 525 | counts, and denies that it was given to indemnify the defend- ant for becoming bail in any suit whatever ; and that the de- fendant was never bail in any suit for the obligor. The an- swer further states that one of the witnesses to the bond is dead, and that William Hill, the other witness, is living, and is a man of good repute. This cause was put at issue, and witnesses examined on each side, and publication passed by consent. In the course of examination, the plaintiff proves, by this same witness, that he was present at the execution of the bond ; and that he, with the other witness, (now dead,) at the same time, attested a receipt given by the defendant to the obligor, showing that the bond was given by way of indemnity to the defendant for becoming bail for the obligor. The receipt is made an exhibit in the cause, and provedby his witness ; and it is of the same date with the bond, and declares that the bond, which it duly specifies, was given as an indemnity to the defendant for being surety for the obligor, in a suit brought against him by one Samuel Wood; and that if the suit was settled and discharged indue time, without any further damage, the bond was to be void. No damage is pretended to have been sustained. The defend ant denies that he ever was bail for the obligor. As the re ceipt goes to contradict the express terms of the bond, and is not under seal, I apprehend it would not be admitted, at Vol. I. 52 409 V. Jackson. 585 CASES IN CHANCERY. 1815. law, as a defence against the payment of the bond^ • id as »^-N,^-^_/- it forms a matter of defence dehors the bondj and is gr id in Dentok equity, it brings the case within the reach of all ) ne decisions in favor of the exercise of the jurisdiction of thiS Court ; and it becomes essential to justice that the Court should interfere and protect the plaintiff from the claim set up at law. I have not deemed it regular to take notice of the sugges- tion of the counsel for the defendant, accompanying his brief, (for the case was, by mutual arrangement and consent, argued on paper,) of a defect in the interrogatories on the [ * 526 ] part of the plaintiff, and of the delay of his soUcitor *to pro- duce the exhibit. There is no motion before me on the subject, nor would it have been in season if it had b^en made ; for even before the last term, publication passed by a rule entered by consent, and the cause was, by t'\e like consent, set down for hearing at the last term. I slvU, accordingly, decree, that both the bonds be delivered up to the register, or assistant register, and cancelled within 20 days after notice of this decree ; and that the defendant b^ perpetually enjoined from prosecuting either of the said bonds at law ; and that the defendant pay the costs which hai ■< accrued in the suit at law, and, also, the costs of this suit. Decree accordingly. Denton and others against Jackson and others. After publication passed, and the cause set down for hearing, the depo- sition of a witness was allowed to be amended, on examination of the witness by the Court, he being aged and very deafj and a mistake made in taking down his testimony by the examiner. Btpt 27ih'. MOTION to expunge some part of the deposition of one of the witnesses, examined on the part of the plaintiff, on a certificate of the examin'jr, that the witness applied to him, a short time before publication was passed, alleging a mis- take in taking down his testimony. The examiner, also, cer- tified, that the witness was very deaf. The cause was set down for hearing ; and the motion now was, that the wit- ness, who was in Court, and appeared to be aged, should ba examined ore tenus by the Court. i Riggs, in support of the motion, cited 2 P. Wms. 646 Dickens's Rep. 677. 410 CASES IN CHANCERY. *527 *IIoffman, contra, objected to any alteration of the original 1815. deposition, and urged that the correction, or explanation, -^.^-s^^-^^ should be made in a supplemental affidavit. Mannikg The Chancellor. Applications of this kind must rest in discretion, and great caution is requisite to prevent abuse. The mistake suggested might easily happen from the age and great deafness of the witness. If the mistake exists, the deposition ought to be corrected, otherwise the witness would appear to contradict himself; and the cases cited ap pear to support this course of proceeding. The motion must be granted. The witness was, thereupon, sworn in Court, and exam ined, andhis deposition amended. MAKtriKQ. Manning and others against The Executors of Manning.* [Seepos«*034.] An executor, or trustee, is not entitled to commissions, or compensation for his services in the execution of his trust. Executors, or trustees, are chargeable with interest on trust moneys ap- plied to their own use. THE testator, Jaines Manning, made his will on the 29th Sq><. 27iL o? November, 1808, and died the next day, leaving a consid- erable real and personal estate. By the will, his executors were empowered to sell all his real estate, except that on York Island. The defendants all acted as executors, and sold the real and personal estate, aVid collected the proceeds, after paying debts ; and from time to time paid over to the plaintiffs, who are the widow and children of the testator, various sums as part of the estate ; but the plaintiffs charged that considerable moneys still remain in the hands of the de- fendants, *unaccounted for; and, particularly, that each of [*528^, them retains a sum under pretence of its being due for com- missions, or as a compensation for personal services, in ex- ecuting the will, &c. The bill prayed for an account, a,nd general relief. The defendants, in tlieir answer, state, that the testator ivas a merchant of extensive business, and had many out- standing debts, difficult to be collected ; and his children be- ing infants, without a guardian to act for them, the defend- ants liad a great deal of trouble in managing the estate and 411 Manning. 528 ^ CASES IN CHANCERY. 1815. collecting the moneys, &c. That they hod received, on >.,*«— v--**-' account of the estate, 78,598 dollars. and 2'..> cents, and had Manning paid 77,024 dollars and 53 cents, leaving a balance of 1,573 dollars and 72 cents in their hands ; and that there are still some outstanding debts to be collected. That the real es- tate was dispersed in different states, and the charge was in their hands about four years. That the testator left the ex- ecutors no legacy, or any compensation for their trouble ; .and they submitted that they were justly entitled to, and ought to have a commission of two and a half per cent, on 76,701 dollars, of the funds of the estate received and paid out by them; and the like commission on 51,782 dollars, part of the amount received by them. They admitted that Jeremiah Manning and Robert Manning, two of the defendants, had, respectively, used part of the moneys received by them, for which, however, they allowed interest to the estate ; but which, they think, ought not to be allowed. William F. Manning admitted that he retained in his hands 129 dollars and 26 cents, being commissions, of 5 per cent, for his services in taking charge of a farm in Neiv- Jersey, owned by him and the testator jointly. Jeremiah Manning a.dtnitted that he re- tained in his hands 720'dollars and 15 cents, as a compen- sation for his services to January, 1813, besides the interest above mentioned, amounting to 420 dollars and 64 cents. Robert Manning, also, a!dmitted, that he retained 613 dollars and 50 cents, besides the interest due from him of 116 dol- f * 529 ] lars and *50 cents, which amount he claimed as a compen- sation for his services. Slosson, for the plaintiffs. He cited Robinson v. Pett, 3 P. Wms. 249. and Gould v. Fleetwood, ia. n. p. 251. Chetham y . Audley , A Ves.jun. 72. Harvey x. Blakeman, 5 Ves.jun. 696. Baldwin, for the defendants. He cited Bonithon v, Uockmore, 1 Vern. 316. 4 Ves. 75. Brown v. Lilton, 1 P. Wms. 140. 1 Pennington's N. J. Rep. 44. 3 Binney's Rep. 557. 1 Wash. Rep. 250. -Ayliff v. Murray, 2 Jtk: 60. Ellison v. Airey, 1 Ves. 111. Swinburne, 860. 11 Vin. Abr. 483. 1 Vernon, 197. 1 Bro. C. Rep. 359. 12 Ves. 391. 13 Ves. 592. 2 AtTc. 106. 151. 603. Swinburne, 154. 251. 7 Ves. 96, 97. Toller's Law of Executors, 324. The Chancellor. The executors are called on to ren- der an account of their trust ; and they set up a claim to a commission of 5 percent., as a compensation. for their care and: trouble in the management of the estate ; and they, likewise, contend, that they ought not to account for interest 412 CASES IN CHANCERY. &'29 on moneys belonging to the estate, and which they made use 1815. ^ of for their private purposes. ^^^— v-^^ 1. The claim of an allowance has been pressed upon the Mahnino Court with much zeal, as if the denial of it would be ex- makitikg. tremely unjust, and as if this Court was at liberty to deal with established rules just as it pleased. This very point was one that arose in the case of Greer}, v. Winter ;f and it t Ante, p. 26. was, then, considered as a settled rule in the English chan- cery, that no such allowance was admissible, unless it rested upon contract, or was given by the will. The rule there must be the rule here ; for I take this occasion to observe, that I consider myself bound by those principles, which were known and established as law in the Courts of equity in ^England, at the time of the institution of this Court ; and [ * 530 J I shall certainly not presume to strike into any new path, with visionary schemes of innovation and improvement ; via antiqua via est tuia. It would, no doubt, be, at times, very convenient, and, perhaps, a cover for ignorance, or indolence, or prejudice, to disregard all English decisions as of no au- thority, and to set up as a standard my own notions, of right and wrong. But I can do no such thing. I am called to the severer and more humble duty of laborious exami- nation and study. It was Lord Bacon who laid it down as the duty of a judge to draw his learning from books, and not from his own head. This Court ought to be as much bound as a Court of law, by a course of decisions applicable to the case, and establishing a rule. As early as the time of lord keeper Bridgman. it was held that precedents were of authority ; and that it would be " very strange and very ill " to disturb a rule in chancery which had been* settled. (1 Mod. 307.) The system of equity principles, which has grown up and become matured in England, and chiefly since Lord Nottingham was appointed to the custody of the great seal, is a scientific system, being the result of the reason and labors of learned men for a succession of ages. It con- tains the most enlarged and liberal views of justice, with a mixture of positive and technical rules, founded in public policy, and indispensable in fevery municipal code. It is the duty of this Court to apply the principles of this system to individual cases, as they may arise; and, by this means, en- deavor to transplant and incorporate all thnt is applicable in that system into the body of our own judicial annals, by a series of decisions at home. The master of the rolls. Sir Joseph Jehyll, disclaimed any discretionary power in the Court, sometimes ignorantly imputed to it, to follow the private affections, or any arbitra- ry notions of abstract justice, instead of the established maxims of law and equity. Though proceedings in equity 413 5:J0 CASES IN CHANGERS'. 1815. are said to be secundum discretionem honi viri, yet, when ^-«""-N,^^<»-^ *it is as ced, Vir bonus est quis 1 The answer is, Qui con- Manning sulta Patrum, qui Leges, Juraque servat ; (Sir J. Jekyll, in Mansing. 2 P. Wms. 753. See also 3 P. ffms. 411.) and it may, I * 531 1 be laid down as a certain truth, that the English system of equity jurisprudence forms an important and very essentials branch of that " common law," which was recognized in the constitution of this state. If it were not so, this Court would be a dangerous tribunal, with undefined discretion, and without either science oi; authority to guide it. The English decisions are, undoubtedly, the most authentic evi- dence of the English common law ; and the dignity or inde pendence of our Courts is no more affected .by adopting these decisions, than in adopting the .English language ; oi than the independence of France or Holland is wounded' by following, as they do, the civil code of the ancient Romans. Our business, then, as questions arise, is to discover what rule, if any, has been established by the Courts in this state, and if none, then what was the existing rule in the English system of equity at the commencement of our revolution. And while engaged in this inquiry, we are not to blind out eyes against human knowledge, but it is incumbent on us to examine the several authorities, whether they be ancient or modern, whether they be before or since the revolution, whether they be foreign or domestic, which may tend in any degree to ascertain, explain, or illustrate, the point under consideration. When we have been able to deduce from them, with sufficient precision, the true, genuine rule of equity, that rule becomes the law of the case, and the case a precedent for the future, (a) [ * 532 ] *With this explanation on the subject of cases, (and to which I have been led by the language of some decisions in this country,) I return to the point before me, and I think it is not to be denied that the law is settled against the claim of a trustee to compensation. The decisions have remained steady and uniform for a century and a half, and the rule applies not to executors merely, but equally to trustees of every description. The only unsettled point seems to be, ' whether even an agreement with the cestuy que trust, for an {cTj In Bond v. Hopkins, (1 Schoale S^ Lefroy, 428, 429.) Lord RedesdaU observed, " There are certain prinpiples on which Courts of equity act, which arf very well settled. The cases v \iich occur ai'e various, but they are decidi d on fixed principles. Courts ol equity have, in this respect, no more dis retionary power than Courts of law. They decide new cases, as theyai 3e,by the principles on which fprmer cases have been decided, antl may thus .Uustrate or enlarge the operation of those prinuioles ; but the prin ciples are as fixed and certain as the principles on which the Courts of com mon law proceed." 414 CASES IN CHANCERY. 53'i allowanie made after the creation of the trust, or the death 1815. of the es'.ator, would be recognized as binding. " I will v^,*--<^.l^ not say," observes Lord Hardwicke, " that the Court will makuing set aside such an agreement, if fairly and openly made, ,, ^• though there is no instance where the Court has confirrned such a bargain." A trust is regarded, in chancery, as a matter of honor and conscience, and undertaken with humane, or friendly, or charitable, and not with mercenary, views. It is not necessary to go through the cases at large, or repeat what I have said on a former occasion. A gene- ral reference to the authorities must be sufficient. (How v, Godfrey, Rep. temp. Finch, 361. Hethersell v. Hahs, Rep. in Ch. vol. 2. p. 83. Bonithon v. HocJcmere, 1 Vem, 316. Scattergood v. Harrison, Moseley, 128. Robinson v. Pett, 3. P. Wms. 248. Gould v. Fleetwood, n. ib. Ayliffe v. Murray, 2 Atk. 58. The Charitable Corporation v. Sutton, 2 Atk. 406. In the Matter of Annesley, Arab. 78. Ellison v. Airey, 1 Ves. 111. Chetharn v. Lord Audley, 4 Ves. 72. Fearns V. Young, 10 Ves. 184.) The distinction attempted to be raised between a mere executor, and one partaking rather of the character of an agent or baihff, is not apphcable to the case. The distinc- tion might, with equal or more propriety, have beei» made in *How v. Godfrey &f White, which was one of the earliest [ * 533 ' cases, and in which the general rule was estabhshed by Lord Nottingham himself. The defendants, in that case, were appointed by a nuncupative will to take care of the estate for the infant children of the testator, and they took out administration with the will annexed ; and by virtue thereof, and as guardians, they possessed themselves of the whole estate, real and personal. If the idea of acting as agent or bailiff, rather than as executor, was applicable to any case under a will, it would have been so to that, and yet the chancellor rejected their demand of an allowance for their care and trouble. The same distinction was urged, and equally in vain, in Robinson v. Pett, where the services were alleged to be very extraordinary ; but the party still acted under a trust created by will ; and it was in that case /that Lord Talbot laid down the rule in very general and em- phatic terms. He said it had long prevailed, and was a rea- sonable rule, and one which tended to prevent the trust estate from being loaded and eaten up by a charge volunta- rily assumed. It is a rule founded in the same equitable policy of closing the door to temptation, abuse, and fraud, with that other rule forbidding a trustee to become a pur- chaser, for his own benefit, of the trust estate. And if the rule applied with more force and propriety to one kind of trust than another^ I should think it was that of an execu- 415 533 CASES IN CHANCERY. 1815. 'or who gives no security,. and who is selected by reason oi >_*-\,-^_^ some special and sacred confidence, resulting from the ties Mahkimo of kindred or friendship, and charged by the testator, in his Mahning. dying moments, with interests of the nearest human concern, and which he is on the eve of renouncing forever. The re- quest of the testator, in such cases, is the supplication of a friend; — -' ■ Misera hoc tamen unum Exequere—^hi. It appears to be the practice in several, of the United [ * 534 ] *States, to allow a commission of so much per centum to ex- ecutors and other trustees. (1 Wash. Rep. 246. 4 Hen. ^ Munf. 415. 1 Munf. 150. 3 Binney, 457.) But this practice cannot be received here as authority, however, re- spectable the source ; for it is not founded upon any difierent construction of the English law, but upon local usages- or ' statutes, which have confessedly changed the English rule. I am not responsible for the justice of that rule. I only de- clare the law as I find it to be settled ; and if the rule was admitted to be, according to the language of one of the southern? chancery cases, " a monstrous rule," I should not feel myself at liberty to say, as that case does, " so far as I ran go, I shall blot it out forever."(a) It is the province of the legislative, and not of the judicial power, to change the law ; and our constitution has auspiciously declared, that the common law of England (in which I include, of course, the equity system) " shall continue the law of this state, subject to such alterations and provisions as the legislature of this state shall, from time to time, make concerning the same." Nor does the rule strike me as so very unjust, or singular and extraordinary; for the acceptance of every trust is voluntary and confidential, and a thousand duties are re- quired of individuals, in relation to the concerns of others, and particularly in respect to numerous institutions, partly of a private and partly of a public nature, in which a just indemnity is all that is expected and granted. I should think it could not have a very favorable influence on the pru- dence and diligence of a trustee, were we to promote, by the hopes of reward, a competition, or even a desire, for the pos session of private trusts, that relate to the moneyed concerns of the helpless and infirm. To allow wages or commissions for every alleged service, how could we prevent abuse? The infant or the lunatic cannot watch their own interest. Quia eel 416 (a) Miller v. Beverley, 4 Benhing fy Munf. Virg. Rep. 415—419. per Chan illor Taylor. 16 CASES IN CHiiNCERY. *535 *custodiet iposs custodes 1 The rule in question has a sane- 1815. tion in the wisdom of the Roman law, which, equally with v^.*-s^«»_ ours, refused a compensation, and granted an indemnity to Mankin» the trustee of the minor's estate. The maxim in that law ]viASN,„r, was, that lua-um facere ex pupilli iutela tutor nan debet; and the tutor or curator was entitled only to his reasonable and just expenses incurred in behalf of the estate, such as travelling charges, costs of suit, &c., unless a certain' allow- ance was granted by the person by whom he was appointed. Sumptuum, qui hona fide in tutelam, non qui in ipsos tutores fiunt ratio haberi solet : nisi ab eo, qui eum dat, certum sala- rium ei constitutum est. Item sumptus litis tutor reputabit, et viatica, si ex officio necesse habuit aliquo excurrere velprofi- cisci. {Dig. 26. 7. 33. Idem. 26. 7. 58. Idem. 27. 3. 1. 9.) It is probable that this same principle, which we find in some, has been infused into the municipal law of most of the nations of Europe, because most of them have adopted the civil law. (Domat, h. 2. tit. Tutors, sect. 2. pi. 3. sect. 3. pi. 35. Erslc. Inst. b. 1. tit. 7. sect. 31, 32.) The sarrift rule was known in the early ages of the com- mon law, and applied to the guardian in socage. He was entitled only to his allowance for his reasonable costs and expenses, when called to render an account of the guardian- ship of the estate of the ward. {Litt. sect. 123.) And this was the provision in -the statute of Marlbridge, (52 H. III. c^ 17.) declaring the duties jf the guardian in socage, sal- vis ipsis custodibus rationabilibus misis suis. 2. As to the next point, whether the executors shall be charged with interest on the moneys which they admit to have been applied by them to their own use, and on which they had, at one time, admitted themselves to bo chargeable with interest, there does not appear to me to be room for a question either on reason or authority. If the executor applies the moneys of the estate to his own use, he ought to pay interest, because he ought not to make a gain out of the estate ; and it is his duty to manage it for the exclusive *benefit of the cestuy que trust. It is sufficient to refer to [ * 536 ] the cases of Ratcliffe v. Graves, (1 Vem. 196.) Newton v. Bennet, (1 Bro. 359.) and Piety v. Stace, (4 Ves. 620.) to show that this is a settled rule of the Court. I shall, accordingly, decree, that the defendants are not Executors entitled to any commission, and that they must account for aSdforcom- the interest which they have heretofore allowed to the missions and lit- estate ; and that, as they have undertaken, in favor of their o?"tkeir°daim own private claim, to litigate with the plaintiffs upon these were decreed m two points, and which have been long settled in the law, it ^^^ '"'^''' is just that they should do it at their own expense, and be Vol. I. 53 417 536 CASES IN CHANCERY. 1815. chargeable with the costs of this suit ; and this is the practict v,^^-v,-.L^ in such cases. (1 Bro. 359. 3 Bro. 433. 1 Ves. jun. 2Q^ Eaolesos 4 Ves. 620.) Shotwell. Decree accordirgly Eagleson against Shotwell. I^ on applicatiou 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. And if it be impossible to ascertain the cash value of the shares, the com- pany having failed,, 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. (■Mober 6th. WILLIAM EAGLESON, deceased, the husband bf the plaintiff, in June, 1812, being in want of money, applied to the defendant, who agreed to lend him 2,000 dollars, on . bond and mortgage, provided he would take, also, four shares of the stock of the Commercial Insurance Company, at par, or 250 dollars for each share. The bill charged that the stock was then worth only 125 dollars a share, and .was a mere color for a usurious loan ; but the defendant taking advantage of the necessities and weakpess of W. E., the * 537 ] *loan was effected ; and a bond was, accordingly, executed, conditioned to pay the defendant 3,000 dollars, with interest, in one year ; for which a mortgage was given on two lots in New- York ; and the defendant advanced the 2,000 dollars in cash, and transferred the four shares of stock. W. E., on the 14th of June, 1813, by his last will, devised the principal part of his property to his wife, the plaintiff, and made her executrix. The defendant having advertised the lots for sale, under the power contained in the mortgage, the plaintiff prayed for an injunction to stay the proceedings, (which was granted,) and for rehef generally. . The defendant, in his answer, stated, that though he was acquainted with the concerns of the Commercial Insurance Company, he was not able, in June, 1812, to ascertain the value of the stock, as it depended on the result of certain large claims for losses, by seizures under the Berlin and MUari decrees, &c. That he had no communication with W. E.; but Robert Jaqiies applied for the loan of 2,000 dollars, and the defendant offered him that sum. if he would 418 Shot WELL CASES IN CHANCERY. 537 also take four shares of the stock of the said company, at "815. par, otherwise he declined lending the money. That ^.^^-s,^-*^ Jaques, after taking time to deliberate and make inquiry as eaolesok to the value of the stock, acceded to the terms of the loan ; which was, accordingly, effected, the money paid, and the bond and mortgage received, through the hands of Jaques. The defendant denied all design to oppress, or take usury, &c. The cause being at issue, and considerable proof taken, it was set down for hearing in June last, when an order of reference to a master was made. It appeared from the proofs, that the defendant was one of the directors of the Commer- cial Insurance Company, at the time of the loan of the money and sale of the stock. On the coming in of the master's report, the cause was brought on to a hearing. The master (who had been ordered to ascertain and report the cash value of the stock of the * Commercial Insurance Company, on the 27th of June, [ * 538 ] 1812, with the interest from that time, what payments had beenmad(!, and the amount now due, &.c.) reported, that he could not, from any cash sales, ascertain the cash value of the insurance shares ; that, in June, 1812, they were below par, but how much less he could not say. From the proofs taken before him, which he reported, it appeared that the Insurance Company failed some time after the transfer of the shares by the defendant to TV. ,E. He, also, reported some payments for interest and rents received by defendant, who had taken possession of the mortgaged premises. Baldwin, for the plaintiff. Slosson, contra. The Chancellor. It is admitted by the answer, that the sale of the shares at par, was made a condition of the loan of the 2,000 dollars ; and, as the defendant was a director of the insurance company, at the time of the sale, he must have known of the embarrassed circumstances of the company, and that the stock was, at the time, of doubtful credit, and below par. This fact is established by the master's report; and it was oppressive, and tended, to extortion and usury, to make the acceptance of the shares, at par, a condition of the loan. If such contracts are to be supported, the provisions of the statute against usury would be eluded, and become of no avail. Selling stock at 75, to a person applying for a loan of money, when the price of stock, at the time, was only 73, was held, in Doe v. Barnard, (1 Esp. Rep. 1 1.) to bo clearly usurious. It is impossible to 419 538 CASES IN CHANCERY. 1815. ascertain what the shares were worth at the time. There were no sales of them ; and the few whie b have since been made, appear not to have been in the usual and ordinary course of business. They show that the stock never had, afterwards, any market price which approaches, in any degree, near to their nominal value. It is impossitle, then, to fix any I * 539 ] determinate *value on them ; and the only course to be adopted is, to rescind the sale altogether, as being made in fraud of the statute. This course is recommended equally by policy and justice. I shall, accordingly, decree, that the shares be retrans- ferred by the plaintiff to the defendant, and that the mort- gage stand as a security only for the 2,000 dollars, with interest thereon ; and that the defendant be at liberty to proceed to the sale of the mortgaged premises, only for the balance of principal and interest due on the sum actually loaned, together with the costs of such proceeding; and that the defendant pay the costs of this suit, except that part of the inquiry before the master, which related to the rents and profits of the mortgaged premises while in the possession of the defendant, and on which inquiry the defendant has not been found in default. Decree accordingly. Octooer 7th [ * 540 ] WoosTER and others against Woodhull. A defendant, who has suffered the bill to be taken pro confessd, and a decree, by default, to be entered against him, may, under the special circumstances of the case, be let in to a defence, on terms ; it resting in the sound discretion of the Court to i-elieve the party, or not, from the consequences of his default. But where there had been gross negligence on the part of the defendant, and the prinpipal and most material witness of the plaintif}' had died since the bill was filed, the Court refused to relieve the defendant, as opening the decree would produce irremediable injury to the plaintiff. TWE, petition of the defendant stated, that on the 1st of February, 1798, he obtained a judgment, in the Supreme Court, against George W. Cook, for 1 ,600 dollars ; that, in 1813, he sued out execution on the judgment, and was proceeding *to sell the lands of Cook, which were bound by the judgment, situate in Norway, in the county of Herkimer, when the plaintiffs, in August, in 1813, filed their bill in this 420 CASES IN CHANCERY. 6W Court, stating that they were the owners of the land, having ]81b. acquired a title under Cook, since the judgment ; and >_*»-%.,.-««. ■ charging that the judgment had been paid and satisfied ; Wooster that the judgment-had been revived by a scire facias awarded vvoodho ll against, and served upon, CooJc, personally, who is insolvent, and not upon the ter-tenants ; and the bill prayed for a perpetual injunction, &c. That the subpoena to appear, &c., was served on the defendant, who employed a solicitor to appear and prepare an answer for him, and for which the defendant gave him the necessary instructions. That the answer was drawn and sworn to, and had never been filed ; but why it was not done in proper time, the defendant did not know, having recently discovered the fact; that the answer was not sworn to until after the perpetual injunction had been awarded, but before the defendant, or his solicitor, knew of a decree by default ; that the decree was never served on him or his solicitor ; that, a short time before the last June term, he obtained a copy of a decree, which appeared to have been entered by default, the 30th of April, 1814, and by which the defendant was perpetually enjoined from proceeding on his judgment against the real estate of Cook ; that there was no decree for costs ; but, in the autumn of 1814, a taxed bill, to the amount of 90 dollars and 20 cents, was demanded of him, which he paid ; that the judgment of the defendant is legal, and his debt, being 800 dollars, with interest, will be lost, unless the amount can be levied on the lands of Cook ; and that he has a good defence to the bill, (fee. The petitioner prayed that the decree, entered by default, might be vacated, and the defendant be let in to make his defence ; and that the costs which he had paid should be refunded. T. S. Wooster, one of the plaintiffs, in his affidavit, stated, that William H. Cook, the principal, and a very material, *witness for the plaintiffs, who was living at the [ * 541 time the bill was filed, had lately died ; that if the defendant had put in an answer to the bill, according to the course of the Court, the testimony of that witness might have been taken ; and that, if the decree should be opened, great and manifest injustice would be done to the plaintiffs, for want of that testimony. It appeared from the affidavit of the solicitor of the plaintiffs, that the rule for the defendant to appear and answer was entered the 27th of August, 1813, after personal service of the subpoena; on the 21st of October, 1813, the bill was taken pro confesso, for want of appearance and answer, and on the 30th of April, 1814, a final decree was entered; that, on the 1st of October, the costs in the cause were taxed, and the bill presented to the agent of the defendant on the 20th of October, who requested that the 421 541 CASES IN CHANCERY. 1815. decree, by default, might be waived, which was refused, that, soon after, the solicitor of the defendant afphed to have the default waived, saying he had been employed ti- draw and file the answer, but had neglected to do it ; that, on the 5th of November, 1814, the defendant's agent paid the costs ; that he, the solicitor of the plaintiffs, did not know, until Septemler, 1815, that the decree was silent as to the costs. Riggs, in support of the petition, cited 1 Dickens's Rep. 61. 131. 145. 298. ' 2 Dickens's Rep. 782. Ambler, 89. 2 Bro. C. C. 279. fVelh, contra. The Chancellor. The interference of the Court, to relieve a party from the consequences of his default, must depend upon sound' discretion, arising out of the circum- stances of the case. There is no general and positive rule on the subject; and Lord Thurlow observed, in one case, (Williams v. Thompson, 2 Bro. 279.) that if a defendant comes in after a bill has been taken pro confesso, upon any [ * 542 ] Reasonable ground of indulgence, and pays costs, the Court will attend to his application, if the delay has not been extravagantly long. If the indulgence be great and frequent, there is danger of abuse of the precedent for the purposes of delay. This objection struck Lord Hardwicke with much force in the case of Cunningham v. Cunningham ; (^Amb. 89. Dickens, 145.) and he directed precedents to be searched, on a similar application, where the defendant applied for a rehearing, two years after a decree, which, on his not appear- ing at the hearing, had been made absolute. He said it was a question on which side the greatest inconvenience ■would lie ; and he, finally, opened the cause in that case, on payment of the costs of the default, and of all subsequent proceedings. Several other cases were referred to by the counsel who made this motion, in which the party, whether plaintiff or defend- ant, who had made the default at the hearing, and who had, thereby, suffered his bill to be dismissed, or a decree to be made absolute against him, was relieved upon the usual terms, of payment of costs. {Robson v. Cranwell, Dickens, 61 . Kemp v. Squire. Dickens, 131. Fry v. Prosser, Dickens, 298. Ferran v. Waite, Dickens, 782.) I should have been inclined, under these authorities, to have let in the defendant upon terms j but there is one fact in the case, that puts the inconvenience wholly on the other side, and shows, that the gross neglect of the defendant has deprived the plaintifiFs, forever, of very material testimony to 422 OAS3BS IN CHANCERY. 542 support the charge in their bill of the payment of the judg- 1815. ment. This question of payment involves the whole merit -^.^^v,-^^ of the controversy, and, since the default, the principal Gelstow witness in support of the bill has died. Had the defendant ^^^^ put in his answer according to the course and practice of the Court, the testimony of this witness might have been procured. It is impossible, now, to relieve the defendant, without producing irretrievable injury to the plaintiffs. The inexcusable neglect of the defendant might thus be the very means of gaining his cause. Such a consequence cannot *be endured ; and the application to vacate the decree, [ * 543 ] and let him in to_ defend, must be denied. But as the decree was silent as to costs, they were not recoverable, and they have been taxed and taken by the plaintiffs in their own wrong. They must be refunded ; but the plaintiffs are entitled to the costs of this motion ; and such costs are to be first deducted out of the amount paid to the plaintiffs' solicitor, and the balance only returned to the defendant. Order accordingly. Gelston and Schenck against Hoyt. [Approved, 4 Johns. Cli..4il.] A decree of a Court of competent jurisdiction, on the point at issue be- fore it, can only be reviewed in the regular course of appeal. The decree of a Court of peculiar and exclusive jurisdiction, is conclusive on all other Courts. As where a vessel was seized and libelled in the District Court of the United States, as for&ited, for being fitted out, in violation of an act of Congress, to be employed in the service of a foreign state, to wit, that part 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 Cknstophe, with whom the United States were at peace ; and the District Court dis- missed the libel, and ordered the vessel to be restored to the claimant, and refused a certificate of probable cause of seizure ; this decree wag held conclusive as to the lawfulness of the seizure. If a bill seeks discovery, in aid of the jurisdiction of a Court of law, it must appear that such aid is clearly necessary, and the discovery ma- terial to the defence ; for where the facts depend on the lestimony of witnesses, and the Court of law can compel their attendance, this Court will not interfere. It seems that this Court will not sustain a bill of discovery, and an injunc- tion, merely to procure such admissions by the party as might be used in mitigation of damages, in an action of trespass, at law, unless, per- haps, in very special cases. 423 543 CASES IN CHANCLRl. 1815. Gelston V. HoTT. October Mil. j * 544 ] '545] It belongs to the government of the counti_f to d>'clare, whether it win consider a colony that has thrown off the yoke t f the mother country as an independent state ; and, until government has decided on the question, Courts of justire are bound to consider the ancient state of things as remaining unctianged. MOTION to dissolve the injunction granted by the master *in this cause, on the matter of the bill only, and before answer. The bill stated, that Gelston, as collector of the customsi in New- York, and Schenck, as surveyor of the port, on the 10th of July, 1810, seized the ship American Eagle, &c., as forfeited to the United States ; that she was libelled, in the District Court of the United States, for the district of New- York, by the attorney of the United States'; that the libel alleged that the ship, on the 1st of July, 1810, was fitted out and armed, or attempted to be fitted out and armed, with intent that she should be employed in the service of a foreign state, to wit, of that part of the island of St. Domingo under the government of Petion, to commit hostilities upon the subjects of another foreign state, with whom the United States were then at peace, to wit, of that part of the said island und6r the government of Christophe, contrary to the statute, &c. ; (see act of Cong. 5th of June, 1794. Laws of U. S. vol. 3. p. 88. 3 Cong. sess. 1. ch. 50. s. 3.) by reason whereof the said ship became forfeited, &c. That, on the 7th of November, 1810, the defendant put in an answer and claim, under oath, in the District Court, alleging that he was a citizen of the United States, and sole owner of the said ship, &c. ; that he purchased her, bona' fide, for a valuable consideration, and ignorant of any cause of forfeiture, and denied that the ship was fitted out and armed, or at- tempted to be fitted out and armed, with intent to be employed in the service of any foreign state whatsoever. That, on the 12th of August, 1812, the cause was heard before the District Court, and, on the 24th of the same month, a decree was pronounced by that Court,- that the libel should be dismissed, and the vessel and her equipment be restored to the defendant ; and that a certificate of probable cauSe of seizure ought not to be granted. That the defendant, after- wards, brought an action of trespass against the plaintifis, in the Supreme Court of New-York, in which they had laid their damages, by means of the seizure and detention of the vessel, to *200,000 dollars, which cause was then at issue ; the bill further stated, that" James Gillespie, on the 14th of July, 1809, contracted for the purchase of the ship with her then owners ; and that Gillespie, in making the purchase was the agent of Petion, &c. That, by arrangement among the agents, the defendant was to become the ostensible pur- 424 CASES IN CHANCERY. 545 cTiaser of the vessel, instead of Gillespie, but for the use of 1815. Petion; and that, at the time, Petion applied to A. Kane, ^.^-s^— ^_ of Port-au-Prince, for a loan of money, who, by bills drawn Gelstos on New- TorJc, in favor of Daioson, the agent of Petion, jj^;,^ advanced 20,000 dollars, which bills were accepted and paid ; and the sum of 12,800 dollars, part of the money, was paid by Gillespie to purchase the vessel ; that other large sums were advanced, in produce, &c., by Petion, and his agents, towards the equipment of the vessel, &c. That they be- lieved that, by an arrangement among the agents of Petion, the defendant was to become the ostensible purchaser of the vessel, instead of Gillespie ; and the vessel was, accordingly, on the 18th of January, 1810, transferred to the defendant for that purpose ; that the defendant had declared that he purchased the vessel for Petion. The plaintiffs further charged, that the defendant was not the bona fide or only owner of the vessel at the time of the seizure ; but that the vessel was purchased and equipped by Gillespie and the defendant, as agents of Petion, and for his benefit ; and that it was intended that the vessel should be fitted out and employed in violation of the laws of the United States, &,c. The bill, also, contained the usual allegation, that the plaintifis were remediless at law ; and they prayed that the defendant might make full answer and discovery, &,c., and set forth all contracts made by him, or any other person, on his account, with Petion, or any other person, on his account ; and that he be enjoined from proceeding to trial of the suit at law ; and, if the premises be established, that he be perpetually enjoined, &c. *Emmet and Colden, in support of the motion. They [ * 5^6 J cited Imlay v. Sands, 1 Caines, 566. 4 Cranch's Rep. 272. I Edw. Mm. Rep. 1. 2 Bro. C. C. 319. 4 Bra. C. C. 480. Wells and Baldwin, contra. The Chancellor. I have carefully examined and con- sidered the contents of the bill, and I cannot perceive any sufficient ground for retaining the injunction. This is not a bill of discovery, in the strict and technical sense of the term. It is no more a bill of discovery than every other bill seeking relief, and which calls upon the defendant to dis- close, by answer, the circumstances of the plaintiffs' case, as preparatory to such relief. This bill seeks to transfer the jurisdiction of the suit at law to this Court, and to have the merits of the case discussed, and finally decided heie, and the suit at law perpetually enjoined. Vol. 1. 54 425 «46 CASES IN CHANCERY. 1815. The first question that then arises is, w/ietner the bill <.^~s^-^-^^ shaws a right or title to relief in this Court. 1 intimate d an Gelston opinion upon the argument, that the bill failed in showing Yil'^^ any right to relief, and my subsequent reflections have more and more confirmed that opinion. I am concluded, bj the decree of the District Court, that the vessel was not lia^ ble to seizure and forfeiture, under the laws of the United States, and that question cannot be re-examined here, The decree of every Court of competent jurisdiction, on the point in issue before it, can only be reviewed in the reguiar course of appeal ; and, as long as it continues in force, the decree, if it be the decree^ as it is here, of a Court of pecu- liar and exclusive jurisdifction in the case, is conclusive upon all other Courts. It is quite unnecessary, therefore, to con- sider whether the governnients of Petion and Christophe, in the island of St. Domingo, were foreign states, within the purview of the act of congress, under which the seizure was made, because that question becomes perfectly immate- * 547 ] rial, *if we are concluded, by the decision of the District Court, from opening the question of the lawfulness of the seizure. I should have no difficulty, however, if the question was properly before me, in declaring, that, until those chiefs are recognized as independent powers by the government of this country, to whom is intrusted the controlof bur foreign relations, the Courts are bound to look to the ancient state of things, and to regard them as belonging to France. The judicial opinions referred to upon the argument, would, of themselves, very much conduce to put this point at rest. The bill shows, further, that the District Court refused to grant to the plaintiff's a certificate that there was probable cause for the seizure ; consequelitlyj a suit at law for the unlawful seizure was well commenced, and there is no equity charged that can defeat that suit. The discovery is not, then, wtuited for the purpose of final relief here. This Court can grant no such relief. But it is contended, that the discovery, by the defendant's answer, of the matters charged in the bill, may become ma- terial on the tria' at law, in haitigation of damages ; and this leads us to consider whether this bill contains suflScient ground to call for a discovery for such a purpose ; and, if it does, then whether that purpose be sufficient. If a bill seeks discovery in aid of the jurisdiction of a Court of law, it ought to appear that such aid is required. If a Court of law can compel the discovery, a Court of equity will not interfere ; and facts which depend upon the testimony of witnesses can be procured or proved at law, because Courts of law can compel the attendance of witnesses. It is not de- nied, in this case, but that every fact material to the defence 426 CASES IN CHANCERY. 547 at law, can be proved by the ordinary means, at law, without 1815. resorting to the aid of this Court. The plaintiffs did not \_*«-n,-^ / come here for any such aid, and it ought not to be afforded Gelsto-t unless they call for it, and show it to be necessary. I should hott. presume, from the bill itself, that every material fact relative to the ownership of the vessel could be commanded without *resorting to this Court ; and such trials at law are not to be [ * 548 delayed, and discoveries required, when the necessity of such delay and discovery is not made to appear. This would be perverting and abusing the powers of this Court. Unless, therefore, the bit states, affirmatively, that the discovery is really wanted for the defence at law, and, also, shows that the discovery might be material to that defence, it does not appear to be reasonable and just that the suit at law should be delayed. The bill is, therefore, defective and insufficient in this point of view. But supposing the bill did state that the discovery sought for was material to the defence, and could only be procured from the defendant's answer, the question would then oc- cur, whether that discovery would be material in this case. As the bill might possibly be amended, or a new bill framed, so as to meet the point, it will be convenient to the parties to consider the present bill as if it actually contained all those requisite allegations. No discovery sought by the bill can amount to a justifica- tion at law. If it be admitted that there was probable cause for tJ)3 seizure, that probable cause, without a certificate, would be no justification. The rule of law on this point is settled. {Imlay v. Sands, 1 Caines's Rep. 566.) The proof of the facts charged, if material or admissible at all, could only be so in mitigation of damages ; and I think it is a very important question, whether this Court is to sustain bills of discovery and process of injunction, merely for the purpose of procuring admissions that might be used to mitigate damages. I should not incline to admit such a practice in general terms ; it might soon become vexatious and intoler- able. The cases ought, at least, to be special, in which the certain bearing of the proof upon ■ the case ought to appear, and some rule or test afforded by which the pertinency and materiality of the testimony could be ascertained. But ithout attempting, at present, to lay down any general ale on this point, I am not able to perceive how any of the *facts charged in this bill could become material to the de- [ * 549 | *ence in any point of view. The plaintiffs have committed a tort in seizing and detaining the defendant's vessel, and they must answer for the actual damages which ha sustained. How can it affect the question of damages, whether the de- fendant was owner in his own right, or as trustee for another ? 427 549 CASES IN CHANCERY. 1815. Barrow V. Rhihelan- DEK. Whoever may be the person bei eficially interested, as owner, the damages are the same ; and if impartial justice takes place, as we are to presume it will, the amount assess- ed will be the same. The defendant must make out a right or title to the action, or he will not recover ; and whether he recovers for himself alone, or in part, or in whole, for any other person, is a question between him and that person, and not between him and the plaintiffs. I am not to speculate upon facts and circumstances as they might possibly operate upon the feelings and prejudices of jurors. I am only to in- quire and adjudge what facts can, materially, and upon legal principles, control the damages on the trial at law, under the direction of a discreet and intelligent Court. Without some such rule for the exercise of the judgment, we should be left to wander into the region of imagination and dreams. In this view of the case, I cannot perceive that the fact, whether Petion was, or was not, the cestuy que trust of that vessel and her equipment, can be material in estimating the datoages incurred by the unlawful seizure. The moment the trespass is admitted, the recovery is certain, and the rule of damages is the loss of the use, and the deterioration of the vessel. In every view which has been taken of this case, I am, accordingly, of opinion, that the motion to dissolve the in- junction ought to be granted. Injunction dissolved, (a) (a) See ^ppUyard v. Seton, (16 Vesey, 223.) where it is rtJed, that an in- junction to stay a trial at law must be founded on affidavit, stating the belief of the party, that the answer will furnish discovery materiaj to his defence. ' * 550 ] *B ARROW and others, assignees of Prior, a bankrupt, against Rhinelander. [Reversed, 17 Johne. 5S8. See 2 Jolins. Ch. 4S4.] Where a merchant, in embarrassed circumstances, borrowed money, at different times, of his confidential clerk, who took various bonds and securities for such loans, and for which, by agreement, he was to be allowed a usurious interest ; and, during the period of ten years, tha 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 order- ed all the bonds, obligations, and tertlements, to be set aside, and the whole, accounts, at large, to be opened between the parties, from the first commencement of their transactions, there being not only evidence of mistakes and omissions in the accounts, but of oppressicn, 428 Baehow CASES IN CHANCERY. 550 imposition, and undue advantage, taken of the necessities of the prin- 1^13 cipal. The master, in stating the account between the parties, was directed to allow rests therein, at such times as the parties liquidated their ac- counts, and agreed that the interest then due, should be considered as Rhinelak- principal ; and that the clerk should be charged with the amount of der. all the securities, assigned to him, which had been paid, or which he had refused to deliver to bis principal for collection, or which had been lost by his negligence, default, or want of due diligence in collecting them, with interest, &c. EDMUND PRIOR, a merchant in the city o[ New York, became bankrupt, in March, 1802.' The defendant, who was his confidential clerk, and kept his cash and papers, paid and received moneys, sold goods, made entries in the books, &c. ; was retained in his service, as such clerk, from the 29th of November, 1790, to the 1st of May, 1796, and from the 4th of July, 1797, to the 4th of July, 1801. Dur- ing the time the defendant was in the service of Prior, the affairs of the latter became greatly embarrassed ; and the defendant lent him various sums of money, at different times. The bill stated, that, at the request of the defend- ant, no entries of these loans were made in the books ; that, on the 29th of May, 1792, Prior executed to the defend- ant, a bond for 3,200 pounds; and, on the 15th of June, 1792, another bond for 1,966 pounds, which sums, however, *were not admitted ; that, before 1796, Prior paid the de- | * 551 ] fendant 4,000 dollars ; and on the 30th of April, 1796, he and the defendant came to a settlement, when, Prior being unable to pay, the defendant demanded 1 8 per cent, interest, to which Prior assented, and gave his bond to the defendant for 4,174 pounds, the balance then supposed to be due Prior, also, gave a bond and mortgage to the defendant for 2,000 pounds, which was to be endorsed on the other bond, but which was not done ; that, on the 18th of September, 1796, Prior assigned to the defendant, as security, two bonds and twenty-eight notes, amounting to 8,154Z. 3s. 9d., ex- clusive of interest ; and, on the 8th of June, 1798, he assigned to the defendant, as security, five other bonds, and thirty- b^iree other notes, the amount of which was unknown to the ')iaintifrs ; and, on the 4th of February, 1799, he further as- signed to the defendant eight bonds and fifty-two notes, the amount of which was unknown; the counterparts of the as- signments were kept in an iron chest, to which the defend- :int and Prior only had access, and were lost, or taken au'ay by means unknown ; that the defendant took other notes with blank endorsements, and nine watches, for which he refused to account ; that the defendant did not use due diligence to collect or secure the notes, &c., so assigned to him, whereby many of them were lost ; that to secure the 429 551 CASES IN CHANCERY. 1815. usurious interest on the bond of 4,174 pounc\s, Prior, on v.<»-N/— ^.x the 30th of April, 1800, gave a bond to the aefendant for Barrow 1,957 dollars, payable the 30th of May following; and, on Rhinelaw. ^^® ^^^'^ ^^ December, 1800, he gave the defendant another DEB. bond for 4,500 dollars ; to secure which he executed a mortgage to the defendant for 4,805 acres of land in Clinton county; and for which he, the next day, executed to the defendant an absolute deed, in which was expressed a con sideration of 2,100 pounds, though there was no other con- sideration than the debt ; that Prior was in ill health, etri- barrassed, and greatly imposed on and oppressed by tii6 defendant ; that on the 9th of June, 1800, he gave to the [ * 552 ] *defendant a power to transfer 44 shares in the Pennsylvania Population Company, which were worth 3,500 or 4,000 dollars ; that the transfer was absolute, though no consider- ation passed between the parties ; that, in the spring of 1792, Prior found, on balancing his cash account, a deficiency of 1,052Z. 8s. 2d.; and that the cash book, which was kept by the defendant for the four years subsequent, showed great deficiencies; that, in 1801, the defendant said he wanted Prior's books to make out his account ; that he then overlooked them for all the previous time of his clerkship, and made many alterations; that the defendant refused to. account for the securities, the deficiency of cash, and the watches, or to allow for the shares and lots of land, or to give any account of the money really and truly due to him. The bill waived all penalties and forfeitures, and prayed an account ; that the defendant be charged with the value of the shares in the Population Company, and the unaccounted deficiencies, and for the notes, &c., lost by his neglect; that all property on which he has a lien might be sold ; and that he deliver up and cancel the mortgage, assignments, &c., deed for the lands in Clinton, &c. The defendant, in his answer, admitted that he was in the confidence of Prior, and had access to his papers, &c. ; that he was the chief clerk, and usually made the entries in the cash book, and posted the books, though Prior some- times did it, or employed another clerk for that purpose ; liiat Prior directed his mercantile concerns, but was absent from home the greater part of the year 1791 ; that while de- fendant was in his employ. Prior's affairs were deranged, and, during the latter part of the time, greatly embarrassed, and his cash accounts much deranged ; that the defendant com- municated every error to Prior, who used to examine the books ; that the cash and valuable papers were kept in an iron chest, of which the defendant kept one key, and Prior another ; that Prior and his wife, and other clerks^ had access to the chest. He admitted, that, taking a balance 430 CASES IN CHANCERY. *553 *ofthe cash account from the 12th of May, 1792, to the 1915. 30th of May, 1792, there .appeared a deficit of cash of >,^'^v^-.fc^ 1,059?. 8s. 2d., which thd defendant discovered and com- Barrow municated to Prior ; but he denied that the deficiency arose rhihelak from his means, or that Prior, then, supposed so, but he der. believed it was caused by Prior's omitting an entry of the application, or remittance, of certain money received by him oiJ.G.; that there appeared, from the cash book, various other deficiencies, down to the 4th of July, 1801 ; that the overrunnings, however, exceeded the deficiencies in number and amount. Between the 30th of May, 1792, and the 30th of May, 1796, the deficiencies were 3,452 dollars and 4 cents. The defendant alleged, that many of the entries were made by Prior, and his other clerks ; and that the mistakes were imputable to them, and not to the defendant ; and that none of the mistakes, &c. arose from fraud ; and that Prior had acquitted him of all blame in regard to them ; that he was possessed of considerable property in money and securities when he became clerk; that Prior soon ap- plied to him to borrow money; that he frequently lent him money, and asked the legal interest. The first loan of 111. 10s. was the 14th of January, 1796, 46 days after the com- mencement of his clerkship ; that these loans were as regu- larly entered on the books as other transactions ; that, on the 25th of May, 1792, Prior gave the defendant a bond for 3,200Z.; on the 15tho{ June, 1792, another bond for 1,966Z.; and on the 23d of October, 1792, another bond for 960Z.; that, on the 15th of May, 1793, they accounted together, and a balance of 5,962Z. 19s. lid. was found due to the defend- ant; on the 15th of May, 1794, they accounted together, when Prior owed him 5,806?. lis. Id., and gave another bond for that sum, on receiving which, the defendant can- celled the two bonds for 3,200Z. and 1,966/.; that, on the 30th of April, 1796, they accounted together, and a final settlement was made, when Prior signed the account made out by the defendant, fi-om the books, and *gave it to the [.*354j defendant; that they settled, at the same time, as to the bond for 5,806Z. lis. Id., with the interest, which he denied to be usurious, or at the rate of 18 per cent. ; that Prior then agreed to give the defendant security, by bond and mortgage, and executed two bonds, one for 2,000/., and the other for 4,174/. 12s. lid., being distinct parcels of the debt of 6,174/. 12s. lid. ; on receiving which bonds, the defendant gave up the one for 5,806/. lis. Id.; that, on the 18th of September, 1797, Prior assigned to the defendant, as security, two bonds and 28 notes, amounting to 8,514/. 3s. 5d. ; and, on the 18th of June, 1798, 38 bonds and bills, amounting to 10,738/. 16s., were assigned to the defendant to secure the 431 554 CASES IN CHANCERY. 1815. Barrow V, RUINELAN- D£R. [ * 555 ] bond of 4,174Z. 12*. lid.; that these bonds and notes were a confidential deposit, and Prior was to act as the owner of them; that, on the 4th o{ February, 1799, Prior assigned to the defendant eight bonds and 52 notes, 35 of which had been included in the former assignments ; the nominal amount of the securities so assigned being 20,648/. 18s. 9rf., on the same confidential deposit ; that, on the 9th of Febru- ary, 1801, the defendant gave notice of the assignments to the debtors ; and, on the 4th of Jttne, 1801, he forbade any payments to Priot; and commenced collecting the debts, and used due diligence ; and he accounted for the non-collection of several of the debts. The defendant further stated, that, with the consent of Prior, he took from the iron chest sev- eral Loch Navigation shares, but had received no dividend on theni; that, on the 23d of May, 1799, Prior, as further security, assigned to him 44 shares in the Pennsyhariia Pop- ulation Company, which he held as security ; that he took three watches only, for which he charged himself at the sell- ing prices; that, on the 12th of December, 1800, he took Prior's bond for 4,500 dollars, but denied that it was for usurious interest ; that, when interest was payable, it was included in new bonds, and new bonds taken for the princi- pal; that the bond of the 30th of April, 1800, for 1,957 *dollars, was for interest supposed to be due ; that, on the I2th of December, 1800, Prior gave him the bond, arid a mortgage on the Clinton lands, for 4,500 dollars, for interest supposed to be due, and for some payments on the shares in the Population Company. The defendant admitted, that he held tiiese lands as security, though the deeds were ab- solute. He denied that he had kept false accounts, or made alterations in the books of Prior. Prior and his wife, and several other witnesses, were examined. The two former proved an express agreement between the parties, by which Prior was to allow, and did allow, the defendant usurious interest on the moneys loaned, viz. at the rate of one and a half per cent, per rnonth. Various mistakes, also, in the accounts, were proved,' and various instances of an abuse of confidence by the defend- ant. The facts admitted by the answer will be sufficient to show the nature of the transactions between the parties, without entering into a detail of the evidence. The cause was argued by Riggs and Boyd, for the plaintiffs, and T. A. Emmet and Munro, for the defendant. The argument was chiefly occupied m the examination of the answer, depositions, and schedules. To show that the settlements of the account sought to be opened, and that the plaintiffs were entitled to relief, the counsel cited 432 CASES IN CHANCERY. 535 Bosanquet V. Dashviood, Cases temp. Talbot, 37. 2 Schoale 1815 !f Lefroy, 492. 3 P. Wms. 288. 2 Atk. 330. 1 Atk. 352. v^^-.^-^;^,. Talbot's Cases, 111. 5 Fe^ey, 48. 485. 7 Fesey, 599. barrow 8 Vesey, 369. 11 Fesey, 358. 13 Vesevi 47. 2 ^^Ar. «„J-,^ 112. 119. 2jBro. C. C. 47. The counsel for the defendant, to repel the charge of usury, entered into a calculation, showing that the sums loaned, together with compound interest thereon, exceeded the amount of the securities taken. *The Chancellor. This is a strong and peculiar case, [ * 556 ] which calls for relief. There appears to be very great reason to presume an abused confidence. The defendant was the confidential clerk of Prior, and kept his cash accounts, and had free access to all his papers and moneys. From the beginning almost of their connection, Prior was em- barrassed, and had recourse to the defendant for the loan of moneys. This created, at once, a delicate relation between the master and the servant ; and the rapidity with which loans and debts were accumulated, securities exacted, the load , of dependency increased, and blind and necessitous submission yielded, is distressing to learn, even as told in the defendant's answer. There are two witnesses to the charge of usury ; and the attempt made, by the defendant, to get rid of the charge, under the explanation of taking compound interest, is not sufficient. The defendant does not put himself upon the benefit of the settlements made from time to time, but he, in fact, opens the accounts by his answer, and admits that the entries in the cash books were generally made by him, and that they contain the evidence of his loans. There is, also, proof of mistakes and deficien- cies in the cash books, and of alterations. One mistake, for instance, of a charge, by the defendant, of 500/., on the 15th of June, 1792, is not in the books. Other mistakes are alleged and shown ; other instances of abused confidence art! charged, as taking property from Prior, without his assent. In short, there are so many unpleasant and suspicious cir- cumstances attending this case, leading so strongly to an inference of usury, oppression, and fraud, that it appears essential to the honor of the Court, and the ends' of justice, that all these multiplied settlements and obligations should be set aside, and that an acpount, at large, fi-Om ihe com- mencement of their dealings, should be taken and stated. The cases cited by the counsel for the plaintiflf, bear very pointedly upon the circumstances of this case, and show, that there is nothing unusual in granting the relief. Thus, *in Bosanquet v. Dashwood, (^Cases temp. Talbot, 37.) [*557] Vol. I. 55 433 657 CASES IN CHANCERY. 1815. Barrow V. Rhiitzlan DER. * 558 ] a bill was filed by the assignees of a bankruf t, charging the defendant's testator with lending on usury, and that agree- ments for that purpose were made and repeated from 1710 to 1724. It was a case of apparent extortion and oppres sion, and the accounts were ordered to be opened, and the demands reduced to moneys really lent, with lawful interest thereon. So, also, in Vaughan v. Lloyd, cited in 5 Vesey, 48., which was a case of principal and agent, and of abused influence and confidence by the agertt. A variety of deeds and settled accounts were opened, though the accounts had been settled from time to time, and the defendant insisted on the benefit of those settlements. It appeared that several sums of money were charged improperly, and the accounts were impeached in several points, and the defendant was compelled to prove his accounts, though he might suffer ; for the chancellor approved of the doctrine in Piddock v Brown, (3 P. Wms. 288.) that where there are manifest signs of fraud, the obligee ought to be put to the proof of actual payment, and if he suffered, it was owing to his own conduct. The same decision was made in Watt v. Grove, (2 Schaale &f Lefroy, 492.) which was, also, the case of an agent availing himself of the negligence and extravagance ot his principal. Indeed, the taking advantage of a man's necessities is as wrong as taking advantage of his weakness. This is not the case of merely showing mistakes and omissions in a stated account, in which the party is allowed to do no more than surcharge and falsify. Appearances wear a more serious aspect, and the whole account ought to be opened from the beginning, as was done in Vernon v. Vawdy, (2 Atk^ 1 1 9.) after a period of 23 years I do no more in this case than has been repeatedly done in other cases which were not more oppressive in appearance. I shall, accordingly, decree, in substance, as follows, viz. :— " that the accounts between the parties be opened from the 29th of November, 1 790 ; and that it be referred to a master *to state an account ; and that, in doing it, the defendant be credited for all moneys ioaned to Prior, or paid on his account, or received by Prior, belonging to him, between the 29th of November, 1790, and the 4th of July, 1801, with interest on the same, from the time the moneys were re- ceived, or paid, to the time of taking the account; provided, that in stating such account, the master do make rests therein, at such times as it shall appear that the parties liquidated their accounts, and agreed that the interest then due should be considered as principal, and that the interest to be found due at the time of making such rests, and specially agreed to be paid in the particular case, be there- after considered as principal. That, in taking the account, 434 CASES IN CHANCLR\. 55? the master is not to admit, as evidence, any bond or obliga- 1815. tion given by Prior to the defendant ; that the defendant is s_^-S'-^— to be credited for vsrages for the time he served as clerk, at Barrow the rate of 500 dollars a year, with interest thereon, at the rhinkla.n- end of each year ; that he is to be charged with all moneys der. received from Prior, or from his property, or debtors, before he became a bankrupt, or from his assignees since, and with all moneys paid on account of the defendant, with interest vhereon, &c., and with all goods sold by Prior to the defendant, or taken by him, between the periods aforesaid, with interest thereon, from the time the same were payable by the custom of the store ; and with the principal sums due on all such securities taken by the defendant from Prior, without his permission, and of such securities as were assigned to him, and which he refused to deliver to Prior for collection, together with interest, &.c. ; and that he be, also*, charged with all moneys received on the securities assigned, with interest, &c. ; and with the principal and interest of such securities received from Prior, as have been lost by his negligence, default, or want of due diligence in collecting them. And it is further ordered , that the defendant be credited with the moneys paid for costs and charges of collection, or endeavoring to collect, the moneys due on such securities, and *which shall appear to have been [*559] reasonably expended, &.c. ; and, also, with the amount of such moneys as the defendant may have justly paid for taxes, and other necessary charges upon the Population shares, and the lands in the county of Clinton, with interest, &.c. ; and it is further ordered, that the defendant re-assign the Inland L rJc Navigation shares, if he can, or that the master report the value thereof, &c. ; and that he reconvey the lands in Clinton county, and the forty-four Population, shares in Pennsylvania, if he can, or that the master report the value, &.C. ; and it is further ordered, that the master have power to compel the production of books and papers in possession of either party, and that he report, specially, any facts required by either party, and that the question of costs, and all further directions, be reserved. Decree accordingly. At the hearing of the cause,f Emmet, of counsel for the tj^f''^""; . defendant, objected to the deposition of Prior, the bankrupt, hearing^'of l on the ground of his interest, he not having released his cause, and after right to the surplus of his estate. had be^nfinish- ed in part, an Boyd, contra, insisted, that the objection came too late, made'™ ^ the witness having been cross-examined by the defendant, competencyof before the examiner. He further offered to do away the deposition ta 435 559 CASES IN CHANCER Y. 1815. objection, by proving, by a subscribing witness in Court, the \.^.»-v-i^^ execution of a release by Prior to the assignees, dated the Genet 29th of March, 1803, of all his residuum of interest. This Tallmadge. off®'" ^^® opposed, on the ground that there had been no previous notice of it. ken before an examiner, had i- i i • l tt been read, the The Chancellok directed the witness to be sworn. He *e"piaint°ff to observcd that no objection was made to the cobpetency of the orove the exe- witness Until the argument was partly finished, and not until [ * 560 ] *the counsel for the defendant had even made use of the cution of a re- deposition of the witness. And no reason is assigned why ne?s^ of aii^his the party wishes for delay and time, by requiring four days' interest by the noticc of this modo of proving the release. This Court has a witness, viva frequently admitted the examination of a witness, viva voce, voce, without ^t the hearing, for such a specific purpose as to prove an der or notice for exhibit, which had been neglected to be proved before the ""wftnessma examiner. {I Ear. Chan. 594,595.) The regular Vay be examine^^ would have been to have had a previous order for the TOaiioce,atthe purpose, served on the opposite party, four days before the partSr °pur- hearing, so that the party might not be taken by surprise. pose as to prove gy* under the circumstances of this case, some special cause, cxiviuzts wnicii . had not been at least, ought to be shown why such an order, or notice, as proved before g. substitute for it. should now be required. In strictness, IDG cxEiiniiiPr ' . . But the regular the party may be considered as having waived his objection way IS to serve ^q j-jjg competency of Prior's deposition. a previous or- ^ ^ ^ der for that pur- pose, or notice, Witness examined on the opposite parly, four days before the hear- ing [ * 561 ] *Genet and others against Tallmadge and others. Emmet and others against Genet and others. [Followed, 2 Edw. 203.] The father of infant children, who has been appointed their guardian by this Court, is entitled to receive their disirihutive shares coming to them from their grandfather's estate, on giving the requisite security ; but vyhere one of the sureties, before given by tlie guardian, had be- cotne insolvent, the Court refused to order moneys belonging to the infants, and which had been paid into Court by the administrator, to be paid over to the guardian, until other and further security had been given by him. A guardian has no power or control over the real estate of his ward, fur flier than concerns the rents and projits. Where certain commissioners, appointed to make partition of the real es- tate of an intestate, pui-suant to an act of the legislature, sold parts of 436 CASES IN CHANCERY. 56i tho estate, and paid the proceeds into this Court, pursuant to an orde : 1815 for that purjrose, and which had been invested in public slocks, by the assistant register, the Court refused, on the petition of the guardian, ^-''"^^''"'^ ' to order the money paid over, or the stoclcs transferred, to him. Genet IN the first of these causes, the petition of E. C. Genet _ , , „.' ' stated, that, pursuant to an order m this cause, of the 21st of October instant, the defendant, M. B. Tallmadge, as administrator of George Clinton, deceased, had deposited in Court 6,338 dollars and 37 cents, in cash, a promissory note, several certificates of stock, and a power of attorney, as mentioned in the ordet ; that the money, &.c. belong to the plaintiffs, as part of the distributive share coming to them from the estate of George Clinton, deceased ; that the petitioner is guardian of the persons and estates of the plaintiffs, his children, and is desirous to recover the said moneys and stock, &c., as guardian, &c. ; and he prayed accordingly, offering to give such further security as might be deemed fit and proper. I The order of the 21 st of October, referred to in the petition, stated, that, on reading arid filing the consent, signed by the solicitor and counsel of the plaintiffs and defendants, it *v?as ordered, that M. B. Tallmadge deposit [ * 562 ] with the assistant register, the moneys in his hands belonging to the plaintiffs, as part of their distributive share of the estate of George Clinton, deceased, and also a promissory note given by E. C. Genet, to M. Tallmadge, or bearer, dated the 21st of Juli/, 1815, for 1,182 dollars and 42 cents, and to be deposited as so much cash belonging to the plaintiffs ; and, also, several certificates of stock belonging to the plaintiffs, as part of their distributive share aforesaid, to wit ; (specifying the number of shares, and different kinds of stock ;) and, also, a power of attorney, authorizing the assistant register to transfer to the said guardian twelve shares of stock in the Highland Turnpike Company, belong- ing to the plaintiffs, as part of their distributive share, and that such deposit be subject to the order of this Court. To the petition was subjoined a certificate of the assistant register, that all these deposits had been made, pursuant to the order. In the second of the above-mentioned causes the petition of E. C. Genet, as guardian of the persons and estates of the defendants, his children, stated, that by an act of the legislature, passed 12th of March, 1813, the plaintiffs w^re appointed commissioners to make partition of the real estate of George Clinton, deceased ; and that, by another act, passed the 6lh of April, 1814, they were authorized to sell any portion of the estate not fit for partition, and to divide the proceeds among the heirs, &c. That the plaintiffs 437 562 CASES IN CHANCERS 1815. have lately filed their bill, stating that thej had sold paiu v.^-s,,— «^^ of the said real estate; and that the proceeds, to which the Genet defendants are entitled as heirs, were 6,878 dollars and 67 Tallmapge. f^ents. That, pursuant to an order of the 13th of October, instant, the said sum has been deposited in Court. That the petitioner is guardian of the persons and estates of the infants, and asks for the said moneys as guardian, or for the stock to be transferred to him, if invested, &c. Prayer accordingly, with an offer to give such further security as may be requisite. [ * 563 ] *The otder referred to stated, that the plaintiffs filed their bill on the 16th of August, 1815, and which stated the two acts aforesaid, and that, in pursuance of them, certain parts of the real estate had been sold with consent of the heirs; that Elizabeth Tallmadge, wife of M. B. Tallmadge, Maria BeeJcmani the wife of Stephen D. Beelcman, George W. I Clinton, and the above jive defendants, were the heirs of George Clinton, deceased, and that the defendants were entitled to 6,878 dollars and 67 cents, as a fourth of the proceeds of the sales, after deducting costs and charges, &c. ; that the plaintiffs are embarrassed to know to whom to pay the proceeds aforesaid ; that the guardian of the defendants never gave security with reference to any thing more than the rents and profits of the real estate ; that no appearance had been entered to the bill ; that the plaintiffs had prayed for leave to pay the said proceeds into Court, and that the same might be vested in public securities, or otherwise disposed of, as the Court might think proper, and that the commissioners may be ordered to account, from time to time, with the proper officer, and, from time to time, to pay over to the proper officer moneys which may hereafter arise frorri their trust ; and it was thereupon ordered, that the plaintiffs pay over the proceeds to the assistant register, and that the assistant register invest the same in public Stock of the United States, for the benefit of the infants, and the commissioners were ordered to pay the proceeds of future sales to the assistant register, and he to invest the same as aforesaid ; and that the commissioners might account with a master for moneys which might come to their hands as commissioners, and to deposit the balance, as aforesaid, to be invested, as aforesaid. There was a certificate of the assistant register of the dcQpsit of the 6,886 dollars and 85 cents. The Chancellor. The petition relating to the proceeds of the distributive share of the personal estate of George I •564 ] Clinton, deceased, ought to be granted, on further *security being given so as to cover those proceeds. I have had 438 CASES IN CHANCERY, 56-1 occasion,! already, to observe, on the subject of this very 1815. estate, that the guardian was the proper person to be intrusted -v_^'^N,^-«i^ with these proceeds, on giving the requisite security. But Gknet it is a fact of public notoriety, for it has been declared by xallmadoe one of the former sureties himself, in the public prints, t^7!<«,p.3 s i- that there has been a failure of one of the sureties already taken, and who stood bound in the sum of 13,500 dollars for the guardian's fidelity. I must, therefore, require the deficiency of that security to be supplied, as well as the further security to be given, before I can permit any more moneys belonging to the infants to pass into the guardian's hands. But, in respect to the other petition, in which the guardian asks for the proceeds of the real estate of the infants, sold by the commissioners, the claim stands upon very different grounds. It is not the general policy of j;he law that any guardian should have it in his power, under any circum- stances, to dissipate the real estate of his ward. The law never allows him any further control than over the rents and profits. The act of the 24th of March, 1815, authorizing the chancellor to direct, in certain cases, a sale of the real estate of infants, has taken special care that the investment and disposition of those proceeds shall be under the directior of this Court, so as to secure the same to the infant. Tl / private act under which the commissioners sold, in the presMit case, has not made any specific provision touching the proceeds, except, generally, that they should be divided among the heirs according to their respective rights and interests therein. As far, then, as the interest of the minors is concerned, the disposition of the proceeds necessarily devolves upon this Court ; and the most prudent course is to follow the provision of the other act, and to make some order, under the control and discretion of this Court, in respect to the disposition and investment of these proceeds. It is well understood, that the moneys, which are the object of this *petition, are not wanted for the immediate education and [ * 5G5 ] maintenance of the infants, and the investment of them in public stock, drawing a punctual and certain interest, and capable, at any time, of being converted into cash, appears to be as safe and judicious an investment as could at present be made. I see no good reason why these moneys should not remain subject to the investment already pre- scribed by the order of the Court, and the petitioner has not suggested any other advantageous disposition of them, I shall, accordingly, deny the prayer of this last petition, and make the following order in respect to the first : " Ordered, that it be referred to one of the masters of this Court, residing in the city of New-York, to inquire, 439 565 CASES IN CHANCLRY. 1815. ascertain and report the market value, in ca h, of the ■».^i-s^-««»,/ Manhattan Company stock, and Phoenix Insurance stock, and Mdrrat of the nominal value or amount on the face of the Turnpike BAtLon. stock, mentioned or referred to in the above petition; and that he further ascertain and report, on the application of the above petitioner, what person or persons would, in the judg- ment of the master, be competent security, and who are willing to be security, by a bond in the penalty of such sum as 15,000 dollars, and the stbck so ascertained as aforesaid shall jointly amount to ; and with the usual condition for the faithful performance, by the petitioner, as guardian to his infant children, of his said trust, and to account when required. And that the said master further inquire, ascertain, and report, on the like application, on t^e competency of further security to be offered by the petitioner for the like purpose, in the penalty of 13,500 dollars, to supply and meet the deficiency of the former security, heretofore given by the petitioner to that amount, and which hath since proved to be insolvent ; and that he report with all convenient speed ; and all further directions are reserved until the coming in of that report." N. B. The security being offered, and its amount and [ * b66 ] *competency ascertained by Jeremiah I. Drake, the master, it was ordered, on the 8th of November, 1815, that, on filing the bonds, &.C., the proceeds of the distributive share of the personal estate, as in the petition first mentioned, be paid to E. C. Genet, the guardian. Murray and Winter against Bali.otj and Hunt. [Applied, 8 Johns. Ch. 442. Appro%'ed, Id. 161; 8 Paige 18B. Sea Clarkf 589; Hoffim. 153; S Johns. Ch. 155, 101, US; 4 Id. 48; 2 Paige 853; 9 Id. 516.] A lis pendens, duly prosecuted, is notice to a purchaser, so as to affect and bind his 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. A purchaser of A., a trustee, is not chargeable with notice of the trust, by means of the registry of a deed from H. to B., reciting that A. had executed a declaration of the trust. A person claiming as a lonafde purchaser, for a valuable consideration, must deny the feet of notice of a trust, and of every circumstance from which such notice might be infeired. If a purchaser has notice of the trust at the time of purchase, he himseif becomes a trustee, notwithstanding the consideration he has paid. A purchaser of land buys at his peril, and is bound to look to the tide, und to the competency of the vendor. A purchaser of land chargeable with constructive notice only, by meani 440 JUdkrat CASES IN CHANCERY. 56fi of a lis pendens, is not to be chai'ged with costs, there being no actual 1815 fraud, though the purchase is set aside on the ground of the implied fraud. Whether a latent equity in a third person, will defeat a honafide afssignee, without notice of his rights, except It be an assignment by an execu- Ballov tor, which carries, on the face of it, notice of his fiduciary character ? C^tere. THE bill, which was filed in October, (after the 10th,) Nm. i4th 1814, stated, that the plaintiff, Winter, was trustee of Heathy, , for certain lands, including a subdivision of lot No. 26, in Cosby's manor, containing 50 acres. That Winter having failed in the due discharge of his trust, a bill was filed against him, in 1809,f charging him with a breach of such trust; \ Vide Greet and an injunction was issued, enjoining him from acting as ^,^"^'ru' trustee, &c., selling any of the trust estate, or the securities or *funds thereof; which injunction was duly served in r*567J February, 1809, and the injunction published in the Vtica Gazette, in the county in which the lands are situated. That Winter, afterwards, by the order of this Court, was superseded in his trust, and Murray, the other plaintiff, appointed receiver, and authorized to us.e the name of Winter in suits, &c. That Winter, in August, 1810, sold the premises, lot No. 26, to the defendant, Ballou, and took his bond and mortgage for the consideration money, which were afterwards assigned to the defendant Hunt, who, suspecting the authority of Winter, cancelled that bond and mortgage, and took a new bond and mortgage from Ballou to himself The bill charged Hunt with notice that Winter had no authority to sell, without the previous approbation of JV. Pendleton, Robert Murray, and C. Sa7ids. The defendant, Ballou, in his answer, denied all knowl- edge of the suit in chancery, or of the injunction, except the publication of a notice of it, in the Dlica Gazette, in March, 1812. He stated, that he purchased the premises of Winter, in August, 1810, for 950 dollars,'and received a deed the 31st of October, 1810, and gave a bond and mortgage. That, on the 24th of November, 1811, the defendant, Hunt, applied to him, and offered to advance him some money, provided he would secure the same, together with the bond and mortgage given to Winter, by a new bond and mortgage on land in Vtica, which offer he accepted, and Hunt paid him 200 dollars ; and he, thereupon, executed a bond and mortgage to Hunt, for 1,222 dollars and 4 cents, which had since been paid. That at the time of his purchase of Winter, and at the time of giving the bond and mortgage to Hunt, he had no knowledge of the njunction, or of any defect or suspension of power in Winter to sell ; but he admitted that, before he paid the money to Vol. I. 56 441 567 CASES IN CHANCERY. 1815. Htmt, he knew that -iie power of Winter was suspended ; v^^'^v-^w-' but he never received any notice not to pay the n oney to MuKRAY Hunt, and did not suspect that Hunt was not *en(itled to Balloh receive the money, which he paid to him bona fide. I * 568 1 "^^^ defendant, Hunt, also denied all knowledge of the chancery suit, injunction, &c. until the notice published in the Utica Gazette, in March, 1812. He admitted that, on the 3d of Nonewber, 1810, the bond and mortgage oi Ballou were assigned to him, by Winter, with others, which he had agreed to accept in payment of certain shares in glass works, sold to Winter ; that he had not, theUj the least suspicion of any defect of right or title in Winter to the bond, and mortgage ; nor did he make any inquiry as to the title, or how Winter acquired them ; that he paid Winter a full and valuable consideration for the bond and mortgage. That, on the 27 th of November, 1811, he applied to Ballou iox pay- ment of an instalment on the bond ; and as Ballou could not, conveniently, pay, and wanted money, he agreed to lend him a sum, and take a new bond for it, with, the amount of the former bond, and a mortgage on la,nd in Utica. That the new bond and mortgage were paid ofl" and discharged on the 1st of October, 1814. That, in the winter of 1812, he was called as a witness before the referees, in the cause of Green v. Winter, in this Court, and was, afterwards, told that Winter was charged, by the cestwy que trust, vi'iXh the securities taken for the land he had sold, and, among others, with the bond and mortgage given by Ballou. The defendant. Hunt, admitted, that when he cancelled the bond and mortgage of Ballou, assigned to him by Winter, he had heard of a difficulty between Green and his wife, and Winter, relative to the trust; but the nature or extent of it he did not know, nor did he believe that it affected his case, or the acts of Winter, in regard to third persons. The proofs and exhibits in the cause consisted, chiefly, of the pleadings and proceedings in the suit of Winter v. Green, for a summary of which, see ante, p. 26. 44. 60., and the final decree pronounced in that cause, the 5th of [ * 569 ] October, *1815. By that decree, it was ordered, that the defendant ( Winter) should, within 40 days after service of a copy of the decree, execute a release, to be settled by the master, to Mary and Henry Green, in fee, of all the lands which have been conveyed to, or held by him in trust, except the lands which had been sold by him, and the proceeds charged to him in the master's report, of the 1st of April, 1815 ; and M. and H. Green to hold the same, in trust, according to the deed from P. Heatley to Mrs Green of the 8th of August, 1806, &c. And that the defendant, {Winter,) at the same time, assign all bondsj niortgagea, 442 CASES IN CHANCERY. 569 contracts, &c., in his power, relative to his trust ; and that 1815. he be eximined on oath, touching the same, before a master, .«*«-v.-^_' if required ; and that the defendant, within the same time, Mhrbai Say the balance of moneys due on the master's report to balloo. 1. and H. Green, with interest thereon, from the date of the report, and the costs of suit, &c. By the report of the master, of the 8th of February, 1813, it appeared, that Winter was allowed a deduction, or credit, among others, for a sum charged against him in the report of referees, of 1,000 dollars, being the proceeds of the sale of the lot of land to Ballou ; and, after niaking all the de- ductions as directed by the . order of reference, he reported the sum of 20,510 dollars and 1 cent, due from Winter to the plaintiffs, W. and T. Green. Gold, for the plaintiff. ' 'N. Williams, for the defendant, Ballou ; and J. Kirkland, for the defendant. Hunt. For the plaintiff, it was contended, 1. That Hunt, as assignee of Winter, as to the bond and mortgage, must stand in his place, and be subject to the same equity. ( Clute v. Robinson, 2 Johns. Rep. 612. Runyan v. Mercereau, 11 Johns. Rep. 534. Davies v. Austen, 1 Vesey,^jun. 249. *Matthews v. Wallroyn, 4 Vesey, jun. 118. Sugdcn's Law [*5T0] of Vend. 48%) 2. That the pendency of the suit of Green and others, cestuy que trusts, against Winter, since the 30th of June, 1809, with the successive orders of injunction, must operate as notice, and protect the subject matter from all prejudice, from alienations by the trustee. {Walker v. Smalwood, Ambler, 676. Selfe v. Madox, 1 Vern. 459. Preston v. Tabbin, id. 286. Finch v. Newnham, 2 Vern. 216. Garth V. Ward, 2 Atk. 174. Warsley v. Scarborough, 3 Atk. 392. Sugd.en's Laiu of Vend. 494.) 3. The registry of Scott's original deed to William Green, and of Green's mortgage to Heatley, in 1795, amounts to a constructiiie notice of the rights of the cestuy que trusts. The registry is notice to all the world ; and the recital in the ieed of Winter's trust, and the release of Heatley to Green, s notice of the instrument recited from the registry. (John- . son V. Stagg, 2 Johns. Rep. 510. Jackson v. Neely, 10 Johns. Rep. 374.) 4. The rights of the cestuy que trusts being protected by the lis pendens, the premises alienated to Ballou, by the trustee; still belong to them ; or, if they should so elect, they ^ may demand the proceeds of that sale. 443 570 CASES IN CHANCERY. 1815. if the defendants, it was contended, 1. That the de- v-^->v^-i»w^ fendants had no actual knowledge of the pendency of the MoKRAY suit at the time of the purchase ; and if chargeable with Bali.ou. notice at all, it must be an implied or constructive notice. It cannot be denied, that the general doctrine, as to i7npljed fraud, though unknown to the common law, has been adopted in the Courts of equity in England; yet, even there, itiias been received with reluctance, and with a manifesf leaning against it, as an extremely hard rule. {Sugden's L of Vend. 495. 2 Vesey, jun. 454. 3 ^.-*-v.^^^^ a chattel, which has been wrongfully converted, has passed, Mhreat without any notice or demand by the right owner. Ballou. The Chancellor. The purchase, by Ballou, of Winter ^ was made in August, 1810. The lot purchased was held, at the time, by Winter, in trust, for Temperance Green ; and a suit was then, and for a year preceding, had been, pend- ing in this Court by Mrs. Green against Winter, charging him with a breach of trust, and praying that his authority, as trustee, might cease ; and an injunction had been issued and served, enjoining him from any sale, disposition, or use of any of the lands or securities held by him in trust. The plaintiff, Murray, was, afterwards, appointed receiver, with authority to sue ; and upon a reference and report, which took place in the progress of the suit. Winter was found in arrear to the amount of 20,510 dollars ; and the amount of the above sale to Ballou, as being invalid, and not binding on the cestuy que trust, was not allowed as a charge to Winter. By the final decree, Winter was ordered to coiA^ey and surrender to Mary Green and Henry Green, the * * 574 J *persons for that purpose appointed by Mrs. Green, all the property and interest whatever held by him in trust. The suit so commenced against Winter, having been in a course of continued and diligent prosecution, and having been finally conducted to a decree by which the charges in the bill were established, a question arises, and has been discussed in this case, whether the purchase by Ballou, of part of the trust property, pendente lite, is binding on the cestuy que trust. Ballou has, in his answer, denied any knowledge of the suit at the time of his purchase. There is no proof to con- tradict the answer, and it is to be taken for true. But though he had no knowledge of the suit, it is not pretended that he was ignorant of the existence of the trust ; and it is to be presumed, from his silence, that when he purchased from Winter, he knew that Winter held and sold the land, not in his own right, but as trustee. The bill charges, that it was generally known, at the time of the sale, that Winter's authority was questioned. The answer goes no further than to deny any kn wledge if the chancery suit, or of the in- junction, or of any suspension or defect of power in Winter to sell. The answer of Hunt is to the same limited extent; and the probability is, that it was a matter of public notoriety at the timej that Winter held the large real estate in his pos- session as a trustee. It has been said by the counsel for the plaintiffs, that Bal lou was chargeable with notice of the trust, by means of the 446 CASES IN CHANCERY. 574 registry of the deed from Heathy to Mrs. Green, which 1815. recited the declaration of tr jst executed by Winter. This v-^^n.^-*^ deed, containing this recita , was registered on the 9th of Mukrav April, 1810, but I cannot perceive any justice in obUging balloh Ballon to take notice of the contents of that deed- By what clew was he to be directed to look into the deed from Heatley to Mrs. Green 1 He was dealing with H^iWer; and supposing Winter's trust to be, otherwise, totally unknown to him, he might as well be required to examine the contents of every *deed on record. If there had been any deed on record to [ * 575 which Winter was a party, he would have had a specific object and guide for inquiry ; coRca regent filo vestigia. I have, therefore, not thought it reasonable to charge Ballou with a knowledge of the existing trust, by reason of the registry of Heatley' s deed, but rather to infer that knowledge from what is charged in the bill, and from the silence and the strong implied admission in the answer. The inference tirom the answer is decisive. If a party means to defend himself, on the ground that he was a bona fide purchaser for a valuable consideration, without notice of a trust, he must deny the fact of notice, and of every circumstance from which it can be inferred. {Bodmin v. Vandenhendy, 1 Vern. 179. Anon. 2 Vent. 361. 3 P. Wms. 244. n. 2 Vesey, jun. 458. 9 Vesey, jun. 32.) And if notice of the trust existed when the purchase was made, then the general rule is, that the purchaser becomes himself the trustee, notwithstanding any consideration paid ; {Saunders v. Dehetv, 2 Vern. 271. 2 Fonb. 152, 153.), and, though he may not, perhaps, be bound, in most cases, if the sale is fair, to look to the appH- cation of the moneys, yet, if the trust be suspended by pro- cess of the Court, and the sale be made, as it was here, in contempt of that process, the purchaser, with notice, ought not to bei allowed to defeat it. The question of notice of the trust is also material, inasmuch as the purchaser's knowledge of it goes to lessen or destroy the hardship, if any there should be, in the application of the maxim, caveat emptor. If every man purchases at his peril, and is bound to look to the title and the competency of the seller, the duty is the stronger, if he knowingly purchases of one acting as agent or trustee for others ; for then he is bound to look into the validity and the continuance of the authority, and to call for an explanation of the nature and existing circum- stances of the trust. But it will not be ne< essary to rest the cause on this ground. The other point, which has been pressed for consideration, *appears to be altogether conclusive. Admitt ag that BaMou [*576] had no knowledge, in fact, of the suit of Mrs. Green against Winter, when he made the purchase, he is, nevertheless, 447 576 CASES IN CHANCERY. 1815. chargeable with legal or constructive notice, so as to rendei >„<*— ^,-1^^ his purchase subject to the event of that suit. The estab- MuBRAT lished rule is, that a lis pendens, duly prosecuted, and not jUllou. collusive, is notice to a purchaser so as to aiFect and bind his interest by the decree ; and the Us pendens begins from the service of the subpmna after the bill is filed. The counsel for the defendants have made loud complaints of the injustice of this rule, but the complaint was not prop- erly addressed to me ; for if it is a well-settled rule, I am bound to apply it, and it is not in my power to dispense with it. I have no doubt jthe rule will sometimes operate with hardship upon a purchaser without actual notice ; but this seems to be one of the cases in which private mischief must yield to general convenience ; and, most probably, the neces- sity of such a hard application of the rule will not arise in one out of a thousand instances. On the other hand^ we may be assured the rule would not have existed, and have been supported for centuries, if it had not been founded in great public utility. Without it, as has been observed in some of the cases, a man, upon the service of a subpoena, might alienate his lands, and prevent the justice of the Court. Its decrees might be wholly evaded. In this very case, the trustee had been charged with a gross breach of his trust, and had been enjoined by the process of the Court, six months before the sale in question, from any further sales. If his subsequent sales are to be held valid, what temptation is held out to waste the trust property, and destroy all the hopes and interest of the cestuy que trust ? A suit in chan- cery is, in such cases, necessarily tedious and expensive, and years may elapse, as in this case, before the suit can be , brought to a final conclusion. If the property is to remain all this time subject to his disposition, in spite of the efforts of the Court to prevent it, the rights of that helpless portion I • 671 , of the community, *whose property is most frequently held in trust, will be put in extreme jeopardy. To bring home to every purchaser the charge of actual notice of the suit, must, from the very nature of the case, be in a great degree impracticable. The only safe and efficient means of pre- venting such fraud and injustice, is to charge the purchaser with dealing with the trustee at his peril. The policy of the law does, in general, cast that peril upon the purchaser. Caveat emptor is the settled maxim of the common law. It is his business to inquire and to look to the person with whom he deals. If he knows him to be a trustee, then let him inquire of the cestuy que trust, or let him ask at the re- gister's office, whether there be any suit pending against such trust/3e. He can always be safe if he uses due dili- gence ; but the other party has no means of safety beyond 448 CASES iSl CHANCERY. STi his application to the Court. Whatever may be thought of 1815. the rule, it appears to me to be less severe than that ac- v,^<»-^,-^»_/ knowledged rule of the common law, on vi^hich our Courts Mukeat have repeatedly acted, that a conveyance of landj without ballou any warranty or covenant of title, will not enable the pur- chaser to resort back to the seller, even if the title should fail ; {Frost v. Raymond, 2 Gaines's Rep, 188.) and if he has covenants to secure his title, he can seek for no more than the consideration which he has paid, without any al- lowance for the rise in value of the land, or the value of the improvements. {Pitcher v. Livingston, 4 Johns. Rep. 1.) I have said that the lis pendens was, of itself, notice to the purchaser, and it will now be proper to show that this rule is well established in our law. It is no more than an adop- tion of the rule in a real action at common law, where, if the defendant aliens after the pendency of the writ, the judg- ment in the real action will overreach such alienation. It was one of the ordinances of Lord Bacon, laid down for the better and more regular administration of justice in the Court of Chancery, that " no decree bindeth any that cometh in bona fide, by conveyance from the defendant, before *the [ ♦ 578 ] bill exhibited, and is made no party, neither by bill nor order : but where he comes in -pendente lite, and while the suit is in full prosecution, and without any color of allowance or privity of the Court, there regularly the decree bindeth." (Lord Bacon's works, vol. 4. 511.) Here we find the rule declared above two centuries ago, and by the highest authority to which we can appeal ; and it will appear to have received support and application down to this day In the case of Martin v. Stikes, (cited by Lord Nottingham, in his Prolegomena of Equity, and, again, in 11 Ves. 200.) the bill was filed in 1640, and was abated, by death, in 1648 ; and a bill of revivor was filed in 1662, and the purchase was made in 1651, and yet, as the purchase was, by relation of the bill of revivor, made pendente lite, the purchaser was held bound, and by no less a character than Lord Clarendon. I cite this case, not with approbation, but merely to show the great extent to which the rule has been anciently carried. When this very case was, after- wards, in a new shape, brought before Lord Keeper Bridg- man, (1 Cas. in Ch. 150.) he observed, that it was not form, but the substance of a decree, that all are bound by it who come in, pendente lite. The case of Culpepper v. Austin, which was a few years subsequent, (2 Ch. Cas. 115. 221.) is a strong determination on the same point: in that case the testator had conveyed his lands to his executors, in fee, to pay his debts ; and after his death the defendant purchased the lands of the executors for a valuable consider- VoL. I. 57 449 578 CASES IN OHANCERY. 1815. ation. The heir brought his bill, to have the land, on the v—^-x"-"*^ grodnd that the lands were not wanted to pay debts ; and tJie MuRRAi lord chancellor held, that the suit pending between the BiLjlou. ^^i' ^nd the trustee, to. have an account, was sufficient no- tice, in law, without actual notice of the suit, and the party purchased at his peril ; so that if, in the event of the suit, it appeared that the sale was unnecessary and improper, the heir would recover against the purchaser. It turned out, afterwards, that the defendant lost his purchalse, though he [* 579] *had no actual notice of the suit, and though he had pur- chased and paid the same day the bill was exhibited. {Vide, as to this result, what was said by the chancellor in Baens V. Canning, 1 Ch. Cas. 301.) The case of Fleming v. Page and Blaker arose during the time of Lord Nottingham^ (Rep. temp. Finch, 321.) These were purchases made by the defendants for a valuable consideration, but they were made pendente lite, and for that reason the purchasers were decreed to reconvey and deliver up the writings. The same general principle, that all persons who come in as purchasers, penrfenYe lite, though they are no parties to the suit, they and their interests shall be bound and avoided by the decree, is laid down as the known law, in several cases to be found in Vernon, and to which it will be sufficient only to refer. {Preston v. Tuhbin, 1 Vern. 286. Anon. 1 Vern. 318. Goldson v. Gardner, cited iri Self v. Madox, I Vern. 459. Finch v. Newnham, 2 Vern. 216.) If we come down to more modern times, when the prin- ciples of equity may be supposed to have been more highly cultivated, and more precisely defined, we shall find the rule recognized with equal force. Thus, in Sorrel v. Car- penter, (2 P. Wms, 482;) the defendant purchased an es- tate, pendente lite, from one Ligo, after subpoena served on Ligo, and before answer, for the full value, and without any notice of the plaintiff''s title, or actual notice of the suit. This was the strongest case that could be imagined, and under circumstances far more favorable to the purchaser than the present ; and Lord Ch. King said, that it was a very hard case to set such a purchase aside, yet he ad- mitted that such was the rule, and that it was taken from analogy to alienations pending a real action at law. This doctrine came frequently under the review of Lord Hard- vdclce, and he always held that a purchaser, pendente lite, was bound by the decree in the suit. The pendency of the suit was, of itself, notice; and he observed, that the rule was to prevent a greater mischief that would arise by people's pur- [ * 580 J chasing a right under *litigation. {Garth v. Ward, 2 AtTc. 174. Worsley v. Scarborough, 3 Atlc. 392.) Lord Camden, after- wards, enforced the same rule. "I hold it," he said, " as a 450 CASES IN CHANCERY. f)8C general rule, that an alienation pending asuitis void." {Wal- 1S15. fcerv.Smalwood,Amb.616.) I shall conclude this view of the v^«.^x^-*_. English authorities with noticing the observations of the mas- Mdrrat ter of the rolls in the case of The Bishop of Winchester v. balloo Paine, (1 1 Ves. 194.) " He who purchases during the penden- cy of the suit, is bound," says Sir William Grant, " by the de- cree that may be made against the person from whom he derives title. The litigating parties are exempted from the neces- sity of taking any notice of a title so acquired. As to them, it is as if no such title existed. Otherwise, suits would be interminable, or, which would be the same in effect, it would be in the pleasure of one party at what period the suit should be determined. The rule may sometimes operate with hardship, but general convenience requires it." It would be impossible, as I apprehend, to mention any rule of law which has been established upon higher authority or with a more uniform sanction ; and I should have thought it necessary to apologize for. wasting so much time on the point, if I had not found the rule, ancient and stable as it is, questioned and resisted by plausible considerations addressed to the feelings. I may, also, be permitted to add, that as I am without the aid of any public reports, or any distinct knowledge of the decisions of this Court during the time of my predecessors, I am obHged, in almost every case, to re- assert, expound and vindicate the principles of our equity jurisprudence. Many a point is now raised which would, probably, never have been disturbed, if the means had been afforded to learn the doctrines of the Court ; and it cannot be too often repeated, and too deeply impressed, that es- tablished principles in equity can no more be dispensed with than the rules of law, and for this plain reason, that I am not clothed with a dispensing power. *The persons in whose behalf this suit was instituted are, [ * 581 ] consequently, entitled to a conveyance of the land sold to Ballou, equally as if the title had remained in Winter. The suit is, also, against Hunt, the assignee of the bond and mortgage given by Ballou; and the counsel for the plaintiffs ioek either the land or the proceeds of the sale, and appear to be equally willing to accept of either. Hunt purchased the bond and mortgage, as he says, without knowing or in- quiring as to the consideration for which they were given ; and though he took them subject to all the equitable claims of Ballou, yet, as between him and the plaintiffs, the ques- tion may not be the same ; and I think it will be unnecessary for me to decide, at present, whether the doctrine ol this case reaches him, so as to protect from assignment all the bonds and other securities taken by Winter in his character of trustee. 451 581 CASES IN i HANCEjaY. 18/5. This point underwent much discussion in the house of ■»^^N^""^-' lords, in Redfearn v. Ferrier and qtJpers; (1 Dow's Rep. 5fl.) Mdrrat and it was there held, on appeal in a Scotch cq.se, that ^ Ballou. latent equity, in a third person, shall not dc^fe^t a hop.a ji^ assignee of a right without notice, except it be an asg^nr ment by an executor, which carried on the face of it notice • of his fiduciary character. (See p. 54. 59, GO. 66. 72.) The claim raised by the bill against Ballqu, for the land, and against Hunt, for the proceeds of th,^ sale, are inconsist- ent with each other ; for the one annuls, and the other af- firms the sale. The claim to the land is clear of alj difficulty, and comes within all the cases ; and the only use I shall make of the demand in the alternative, for the lands or the proceeds, will be to relieve Ballou, as far as it is possible, from the loss of his improvements, by giving him thealterna- -tive, to convey the land, or keep the land, and pay the amount of the consideration he gave, together with the in- terest thereon. I shall, accordingly, decree, that the defendant, Ballou, within 40 days froiji the service of a copy of the decree, [ *582 ] *convey, in fee, the lot in question to Mary Green and Henry Green, to be held by them, in trust, &c., unless he shall, within that time, elect to pay, and actually pay, or tender to the said trustees, the amount of the bond he gave to Win- ter, with interest thereon, to the date of this decree. As Ballou is not charged with actjjal, and only with con- structive, notice of the suit, here is no real fraud in the case; and though the purchase cannot be permitted to stand, there is equity in not carrying the doctrine of constructive notice in this case so far as to charge him with costs. I shall, there- fore, not award costs to either party, as against the other ; and the bill, as to the defendant, Hunt, must be dismissed! But as there was probable ground for bringing him into Court, and as he has no more real equity to protect him than the other defendant, I shall dismiss the bill, as to him, without costs. Decree accordingly. 452 CASES IN CHANCERY. 5Ha 1815. J. & H. Boyd against M'Lean and Wife. Botd [Followed, 64 Me. 86; 8 Johns. Ch. 409, 601; 11 Paige 576.] JJ'Lean ff A. purchases land with his own money, but the deed is taken in the Dame 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 thx respiting trust is to arise, may be proved by parol, it not being within the statute of frauds. And this parol evidence is admissible, not only against the face of the deed itself, but in opposition to the answer of the trustee, denying the trust ; and that, it seems, after the death of the nominal purchaser. Such evidence, however, is to be received with great caution. THE bill, which was filed in January, 1812, stated, that A""- 14»- the plaintiffs, in March, 1803, entered into articles of agree- ment, in writing, with Thomas Colden, whereby he agreed lo sell to the plaintiffs, in fee, and ,they agreed to purchase, a lot of land in Newhurgh, containing 10 acres, for which *the plaintiffs agreed to pay 1 ,000 dollars in 4 years, with I * ^°" 1 interest from the 1st of May, 1803 ; and Colden agreed that the plaintiffs might take possession, and that he would execute a conveyance, on payment of the money as mentioned. That, in June, 1807, the plaintiffs applied to the defendant for a loan of 1 ,500 dollars, for securing the repayment of which they were to give a bond and mortgage ; to avoid, however, the operation of two judgments against the plaintiffs, which would have a priority to the mortgage, if the conveyance of the lot was made to the plaintiffs, it was agreed that Col- den should execute the deed to the defendant as security for the loan, and that the defendant should reconvey the prem- ises to the plaintiffs, on the repayment of the 1,500 dollars, in four years, with interest.' In pursuance of this agree- ment, the defendant lent the plaintiffs the 1 ,500 dollars, and Colden, being paid the 1,000 dollars, conveyed the land, at the request of the plaintiffs, to the defendant. That, after- wards, the defendant lent the plaintiffs some other small sums of moneys, amounting in the whole to 305 dollars and 50 cents, for which the plaintiffs gave their bond ; that, on the 22d of June, 1811, and before the expiration of the 4 years from the time of the first loan, the plaintiffs called at the house of the defendant, to pay him the whole amount due to him ; and, in his absence, offered to pay his wife 2,500 dol- lars, in specie, being the amount of all the loans, with inter- est, which she refused; and, in August, 1811, the defendant bi"ought an action against the plaintiffs on the bond, and re- fuses to reconvey the land to the plaintiffs, &c. The plain- tiffs prayed that the defendant might come to an account ; arid that, on the plaintiffs paying the amount due to the de- fendant, he might be decreed to reconvey the premises, &c. 453 583 CASES IN CHANCERY. 1815. The defendant, in his answer, admitted the agreement be- ^.^-s,^.*^ tween the plaintiffs and Colden, in 1803, and that the plain- BoTD tiffs took possession under it. But he alJeged that the M'Lean plaintiffs did not perform their part of the agreement, nor pay the 1,000 dollars to Colden, though demanded by him; and [ * 584 J *that the agreement was dissolved, and it was so understood by all parties. That Colden offered to sell the premises for 1,500 dollars, in cash; that the plaintiffs, in June, 1807, ap- plied to the defendant for the loan of 1,500 dollars, in order to make the purchase, and the defendant refused to lend the money ; that the plaintiffs then advised the defendant to make the purchase, which he did accordingly, and paid Colden the 1,500 dollars, and took the deed. That the business of the purchase and payment was transacted by William Ross, as the agent of the defendant. The defendan,t denied any agreement for a loan of 1,500 dollars, or that the plain- tiffs should mortgage the land to secure it ; that he knew nothing of any judgments as stated in the bill of the plain- tiffs, and denied that the deed was taken by him, as a sub- stitute for a mortgage, or that any loan was agreed to; and averred that the conveyance to him, by Colden, was made absolutely, and without any agreement to reconvey, &-c. He admitted that, being urged by the plaintiffs,'and assured by them of their ability to pay soon, he did, about the time of his purchase from Colden, tell the plaintiffs, that if the 1,500 dollairs was paid to him, within two years from the time of the purchase, with interest, he would sell and con- ^ vey to them the land; that this was a mere parol promise; that 1,500 dollars was, at that time, the value of the land; that the plaintiffs were permitted to remain in possession, without any special agreement, and did not "pay, or offer J pay, the 1 ,500 dollars, &c. ; and the defendant insisted on the benefit of the statute of frauds, which avoided the parol agreement, &c. He admitted that the plaintiffs, in his absence, offered to pay to his wife 2,500 dollars, which was refused ; but alleged that no money was shown or counted ; that he afterwards sued the plaintiffs on the bond, &c. Twelve witnesses were examined on the part of the plain- tiffs, and four on the part of the defendant ; but it is unne- cessary to detail the evidence contained in their depositions, I * 585 ] as *the material parts are stated, and the whole weighed by the Court in pronouncing the decree. The cause was argued by T. A. Emmet, for the plaintiffs, and iS. Jones, jun. for the defendant. The counsel for the defendant objected to the competency of the parol evidence, to prove a parol contract, or a result ing trust ; and it was read, subject to all exceptions. 454 CASES IN CHANCERY. 583 For the plaintiffs, It wais'msisted, I. That the 1,500 dollars, 1915 paid to Colden, in June, 1807, was borrowed of the defend- v.^— s^— *^ ant, and received by Colden as the money of the plaintiffs ; Botd and thatj the purchase being made with their money, a result- ml^ean ing trust was created for their benefit. 2. That the defendant took the deed, as a mortgage mere- ly, or by way of security for the loan, and that the plaintiffs, therefore, had a redeemable interest, which was not barred by the non-payment at a particular day. (1 Fonbl. Equ. b. 1. ch. 6. s. 2. p. 292. n. (e.) Newlandon Contracts, 130 —138.) 3. That if the defendant did not intend to take the deed as a trust, he obtained it in fraud. (Roberts on Frauds, 102. 1 Cruise Dig. 485. s. 61.) For the defendant, it was insisted, that the defendant, in his answer, having absolutely denied any loan, or trust, the parol evidence was inadmissible. To admit parol proof of confessions of a defendant, in contradiction to his answer, to recover real property, must be of the most dangerous ten- dency. (^Sugden's Law of Vendors, 415 — 418.) That the answer of the defendant was supported by the evidence of Ross, his agent. That, according to the plaintiff's statement of the parol contract, it was unilateral, on one side only ; there was no reciprocity. That to constitute a mortgage, there must be a defeasance in writing, there being no other way to defeat an absolute conveyance in writing, unless there be fraud ; {Free, in Ch. *426. Str. 236. Talbot's Cases, 61.) but the plaintiffs, [*586J by their bill, having put their case solely on the ground of a resulting trust, ought not to be listened to, on the suggestion of fraud. The charge of fraud is fully repelled by the evi- dence of Ross. The Chancellor. The ground on which the claim of the plaintiffs rests is, that the 1 ,50{> dollars, which were paid to Thomas Colden, in 1807, as the consideration for the purchase of the premises, were the moneys of the plaintiffs, procured from the defendant as a loan, and that the defend- ant took the deed in his own name, by agreement, and be- (■.ame thereby a trustee for the plaintiffs ; and that such a re- sulting trust, being a trust arising " by implication, or con- struction of law," is expressly excepted from the operation of the statute of frauds, {Laws of N. Y. sess. 10. ch. 44. sect. 13.) and may be proved by parol. Two questions arise upon this case, 1. Whether the law be as has been suggested ; and, 2. If the parol proof be ad- missible, whether it be sufficient to establish the fact. 455 586 CASr.« IN CHANCERY. 1815. There is no doubt, that if A. purchases an es ate with his -^-'-^-t^y own money, and the deed be taken in the name of B., a trust Bo*D results, by presumption of law, to A., who advances the M'Lean. nioney. This is a well-known and a universally-adrhitted rule in equity. The point raised is, whether such a result- ing trust be within the statute of frauds, and whether the fact, on which the trust arises, may be shown by parol proof, in opposition to the language of the deed, and even in oppo- sition to the defendant's answer. There are several writers Who have discussed this point. t Sudg. Law Sugdenf says, that the parol proof is clearly admissible ; 119. '" ' ' but that it seems doubtful whethiet it be admissible against t 2 Atk. 160. the answer of the trustee denying the trust. SandersX is note (2.) San- of opinion, that if the consideration money is expressed in Trusts, 127— the deed to be paid by the grantee, parol proof cannot be '3*- admitted, after the death of the nominal pui'chaser, to prove [ * 587 ] *the resulting trust ; but Sugden says, there is no reason or authority for that distinction, and that it may be received ^ On ^^t-of after, as well as- before, his death. Roberts^ goes further, '^"' '' and denies that a confession of the trust, by the nominal per- chaser, can be proved at all by the parol evidence of a third person. If I were to be governed by the weight of these different opinions, I should place reliance upon the judgment of Sugden, as being the most accurate and per- spicuous writer. But, on a question of importance, and lead- ing to, so much discussion, I have felt it to be a duty to look into all the cases; and the conclusion in my miiid is, that I am bound by authority to receive the proof. If the point were res Integra, I should be inclined to agree with , Sir I Anbl 409. Thomas ClarJce, in Lane v. Deightbn,\\ that such evidence is too dangerous in its consequences ; but this objection comes too late, as the rule appears to be well established, and as he obseped, when he was obliged to bow to the authorities, "I must not be wiser than my predecessors." In Cascoigne V. Theviiig, (1 Vern. 366.) which was as early as in 1685, before Sir John Trevor, the master of the rolls, the very point before us arose in its full extent, and the fact i^f the purchase \Vith the money of the plaintiff was charged in tbe bill and denied in the answer, and the statute of frauds was, also, relied on as a defence. After a long debate, the plaintiff was admitted to read his proofs ; and as the evidence consisted only of what had passed in discourses, and been owned by the defendant, and was doubtful, and left some secret in the cause not understood, the bill was dismissed, though without costs. This casu sfettled the principle, and only left a salutary admonition as to the caution with which such proof ought to be examirftd The case of Kirk V. Webh (Free, in Chan. 84.) was some 456 CASES IN CHANCERY. 58: years later, and looks rather unfavorable to the admission 1815, of the parol proof. It appeared, before a master, that part s.i*>*-^x_ of the purchase money laid out by a trustee, in lands, be- Boyd longed to the trust estate ; and the question was, whether, M'Lsan. *upon that proof, the lands so purchased might not be follow- r * 593 1 ed by the cestuy que trust. The decision was against the bill ; but the opinion of the Court (consisting of the chan- cellor, assisted by the master of the rolls and one of the judges) is not reported with any precision or clearness. Mr, J. Powell said, it was 'a case without precedent; and the master of the rolls, who was also against the plaintiff, ob- served, that if it had been plainly proved, that the purchase had been made with the profits of the trust estate, he should have decided otherwise. The particular reasons of the chancellor, and who was no less a character than Lord Somers, are passed over in silence. The case is, therefore, imperfectly reported; and if it were intended to be decided, that trust money laid out in land could not be followed by parol proof, the case has been decidedly overruled, for such an inquiry has been frequently directed, as was done in Lane v. Dighton, (Ami. 409.) and in several cases which are there cited by the master of the rolls. The next case which I shall mention, in favor of the parol proof of a re- sulting trust, is one that arose in 1729, before Lord Ch. King, (ex parte Vernon, 2 P Wms. 548.) He admitted parol proof of acknowledgments by the nominal grantee, that the purchase money was paid by another, and that the grantee was only a trustee, though he had taken the receipt of payment ; and he directed the infant heir of the grantee to convey to the cestuy que trust. Lord Hardwicke re- peatedly, as in the cases of Ryall v. Ryall, (1 AtJc. 59 Avih. 413. S. C.) Willis V. Willis, (2 Atk. 71.) and Lloyd V. Spillet, (2 Alii. 148.) recognized the doctrine, that wheij a purchase was made in the name of A., and the money paid by B., it was the case of a resulting trust whicli was excepted out of the statute of frauds ; and that this fact, from which the trust was to arise, could be established by parol proof. We meet veith the same decision, afterwards, by Sir Thomas Clarke, in Peachy^s case, (cited in Sugden's Law of Vendors, 3d Lohd. edit. p. 462.) as well *as in the [ * 589 j dase of Lane v. Dighton, to which I have already alluded. But in Bartlett v. Pickersgitl, (cited in note to 4 East. 577.) Lord Nofthington makes no distinction, whether the trust vVas, or waS not, denied in the answer ; and this case, and the one in Vernon, would seem to be sufficient to remove any doubt as to the competency of the proof in opposition to the answer. In that case, the defendant bought an estate for the plaintiff, and took the deed in his own name, and Vol. I. 58 457 589 CASES IN CHANCERY. 1815. refused to convey, and in his answer denied any tiust v^»~^,-^,' There was no written agreement in the case, nor was any Boyd part of the purchase money paid hy the 'plaintiff; and, on M'Lean ^^^^ ground, parol proof that the estate was purchased foi the plaintiff, was rejected. The Lord Ch., however, ob- served, " that it was not like the case of money paid by one man, and a conveyance taken in the name of another. If the plaintiff paid any money, or if any fraud was used by the de- fendant, to prevent an execution of the agreement, it would have been a reason with him to admit the evidence." This last case further shows, that the question of loan or no loan is a proper object of inquiry in respect to this trust ; for it was observed, that if the bill charges that the estate was bought with the plaintiff's money, and the defendant should say he borrowed it , of the plaintiff, then the proof would be whether the money was lent or not. In the late case of Lench v. Lench, (10 Ves. 517.) the master of the rolls, Sir Wm. Grant, admitted parol proof of the naked declarations of the purchaser that the purchase was made with trust money belonging to the plaintiff; and he observed, that whatever doubts might have been formerly entertained upon the subject, it was now settled, that money might, in this manner, be followed into the land in which it was invested, and a claim of this sort supported by parol evi- dence. In a still later case, {Finch v. Finch, 15 Ves. 50.) Tiord Eldon speaks of the rule admitting a resulting trust, out of the statute of frauds, as a clear rule, and long established. 1 * 590 ] *To this train of chancery decisions we ought to add, as a circumstance of decisive weight, that the Supreme Courts of this state, and of Pennsylvania, have received and treated the rule in equity which these cases support, as being settled beyond all doubt or contradiction. {Jackson v. Sternbergh, 1 Johnsi Cases, 153. Foote v. Colvin, 3 Johns. Rep. 216. Lessee of German v. Gahbald, 3 Binney's Rep. 302w) I consider myself, therefore, bound by this series of author- ities, and that the parol proof taken in the present case is to be received as competent. , I think there can be no question but that the suit, if it can be otherwise sustained, is brought within sufficient time. The bill was filed within four years and a half from the pur- chase of the defendant, and the plaintiffs have continued in possession. It has no analogy to the case of Delane v. De- lane, (4 Bro. P. C. 258.) where, though the resulting trust was established by parol proof, yet the demand was rejected as stale, there having been an acquiescence of 17 years under a denial of the trust, and possession against it. 2. The next point in the case is on the question of fact as to the sufficiency of the proof to establish the trust. 458 CASES IN CHANCERY. 590 The cases uniformly show, that the Courts have been 1315. deeply impressed with the danger of this kind of proof, as v.^i»— s^-^_/ tending to perjury and the insecurity of paper title; and Botd they have required the payment by the cestuy que trust to be m^lkan clearly proved. In the case of Lench v. Lench, Sir Wm. Grant did not deem the unassisted oath of a single witness to the mere naked declaration of the trustee admitting the trust, as sufficient ; and there were no corroborating circum- stances in the case. He thought the evidence too uncertain and dangerous to be depended upon. It would be easy to multiply instances of the like caution and discretion ; and the only inquiry is, whether here is not convincing and sat- isfactory proof of the loan to the plaintiffs, and, consequently, the payment of the consideration in the deed wiVA their moneys. *The fact of the loan to the plaintiffs, of the 1,500 dollars, [ * 591 to enable them to purchase the lot, and the defendant taking the deed in his own name, merely as a safer security for his reimbursement, is explicitly proved by the testimony of Patrick Burnett, Thomas Golden, and Benjamin T. Case, who all declare that they were present when the parties, being together, made or acknowledged such an agreement. The testimony of Golden, who executed the deed, is equal- ly particular and impressive. He says he went with the plaintiffs to William Ross, the acknowledged agent of the defendant, and that Ross, as such agent, agreed with the plaintiffs, in his presence, that the defendant would lend the 1,500 dollars ; and that the deed should be executed to the defendant, to avoid some debts or judgments against the plaintiffs which might have preference to a mortgage ; and that the defendant only wished the money secured, and that it might rest for two, three, or four years ; and he says he executed the deed upon this understanding of the parties, and gave it to Ross, who, on the behalf of the plaintiffs, paid him the money. Burnett does not specify the time or place, but says he was present when one of the plaintiffs applied to the defend- ant for the loan of the 1,500 dollars, and the defendant agreed to lend, and take the deed in his own name, as a se- curity, in consequence of some bonds or judgments against the plaintiffs. Gase says, that he was clerk to Ross, and was present in his office about the time of the purchase, and when the defendant left 600 dollars, part of the 1,500 dollars, and one of the plaintiffs was present ; and he understood from the parties, at that time, that the loan and purchase were made as is stated by the other witnesses ; and that it was to receive its present modification for the same reason. These three witnesses refer back to the time of making the contract ; and though the general character of Case is somewhat im- 459 591 CASES IN GHANCERY 1815. peached by the testimony of Wiltidm Taylor, yet that tcs v.rf»--s,,-,fc_^ timony is not strong, as Taylor- had but an iinperfeet knowl BoTD edge *of the character of Case ; and Ross says that Cdi'e, M'Leah ^^ *-^^ ^™^ ^^ making the contract, was a clerk in his office. r « ggg i' In addition to the testimony of these witnesses, as to the - original transattion, the confessions of the defendant, to thi same facts, are proved by a numbei- of other witnesses. Feter Bannin testifies to a confession of the defendant, in 1812, of the fact of the loan, and of the taking the deed in his own name, the better to secure the money. Jonathan Jordan proves an acknowledgment of the defendant, in 1810, to the same thing, in substance. Other witnesses proVe con- fessions of the defendant, altogether inconsistent with the allegation that his purchase was an absolute one, and that he never entered into any contract with the plaintiffs by which they were allowed to redeem the land. Feter Hedges heard him say, in 1809, that he wished to take no advantage of the plaintiffs, and wished to save to them the lot; and Edward Griswold heard him say, in 1812, that the plaintiffs, either then or previously, (and the witness does not distinctly recollect which,) had a redeemable interest ; and that he en- tered into the business only to oblige them. In opposition to this mass of evidence, there is the answer of the defendant, expressly denying the loan, and any con- tract with the plaintiffs on the subject, and insisting that the purchase was absolute and unconditional ; and there is, also, the testimony of Mr. Ross, the agent and son-in-law of the defendant, denying, so far as he acted as agent, the loan and the purchase in trust, and asserting that *'>e deed was exe- cuted and received by him as an absoluie deed to the de- fendant, in pursuance of instructions received "by him for that purpose. The defendant, in his answer, does, indeed, admit a parol observation of his to the plaintiffs about the time of the pur- chase, but which made no part of the purchase, nor was in- tended to be of any binding force ; that if the plaintiffs woula pay him the 1,500 dollars, with interest, within two years,, he would convey the land to them. This averment receives, [ * 593 ] *also, some support from the evidence of Tayhr, who testi- fies to a confession of one of the plaintiffs, made in 1810, that when, the defendant purchased the lot, he gave them ' time to redeem, and which time had passed. The weight of the above testimbhy, duly cbmpared, appears to me to be decidedly in favor of the charges contained in the bill ; and there are several corroborating circumstances which are of considerable mbtnent. It is admitted that the plaintiffs entered intd a contract with Colden, for the purchase df the lot, and took possession under Am CASES IN CHANCERY. 5a< that contract; that they failed to make the payment in 1807, 1815. and were, nevertheless, very solicitous to complete the n_^-n^— <»-.^ purchase, and applied to the defendant for a loan of money. Marks So far, the facts are agreed on; and they show a very r^ij^ sufficient inducement to the alleged contract. But the d-fendant denies the existence of the loan, or even any agreement for time to redeem. Why, then, or for what farpose, were the plaintiffs, or one, of them, present at the execution of the deed and the payment of the money ? If they had no concern in the purchase, their presence is unaccountable. The plaintiffs were not only present at the purchase, but they were suffered to continue in possession for five years after the purchase, or down to the commence- ment of this suit, without any agreement for rent, or any demand for use and occupation. These facts are natural, and consistent with the charge in the bill, but utterly inconsistent with the allegations in the answer. I shall, accordingly, decree, that it be referred to a master, to ascertain and report the sum due to the defendant on the loan of 1,500 dollars, with interest, computed from the 24th of June, 1807 ; and on the bond for the payment of 305 dollars and 50 cents, and bearing date the 25th of October, 1808 ; and that the plaintiffs, within 30 days from the con- firmation of the master's report, pay, or tender, tho amount thereof to the defendant, John M'Lean, together with the *costs of the suit at law upon the bond. And that the [ * 594 ] defendant, thereupon, duly execute and deliver a deed, in fee, to the plaintiffs, of the lot of land described in the deed from Colden to the said John M'Lean, as mentioned in the pleadings, with proper and apt words of covenant by the said John against his own acts ; and that he further pay the costs of this suit, except that part which accrued by the issuing of the injunction. Decree accordingly. Marks and others against Pell, devisee and executor of Pell. IDistinguished, 2 Johns. Ch. 601J No length of time is a bar to a redemption of a mortgage, where theie is fraud in the transaction, or where, by the agreement of the parties, at the time, the mortgagee is to enter and keep possession until he is paid out of the profits. Parol evidence is admissible to show that an absolute deed was intended as a mortgage, or that the defeasance has been destroyed by fraud or mistake. 461 594 CASES IN CHANCERY, 1815, Marks But where a bill was filed for an account and for t reconveyance, 3u years after the deed, alleged to be a mortgage, wa' given, during a]i which time the defendant had been in possession, parol evidence of the mere confessions of the defendant, made 17 yijare after the deed, Pell. '•l'^' '' ^^^ taken as security for a debt, was held insutficient. Nov. I4ih. JOSEPH LATHAM, deceased, in his lifetimeT was seised of a house and lot, (No. 318 Water street,) in the city of New-York, and on the 14th of July, 1806, made his will, at Charleston, S. C, by which he gave one half of the lot to his wife, Martha, in fee, one fourth to his son Gilbert, in fee, and if he died unmarried, then to his wife, and one fourth to his nephew, John Latham, and his niece, Mary. Gilbert Latham died unmarried. The widow of the testator * 595 ] married *P. Simpson, who, with the nephew and niece, are plaintiffs. The bill stated, that the testator, in 1785, being indebted to Gilbert Pell, in the sum of 1,500 dollars, agreed to give him a mortgage on the lot in question ; that G. Pell prepared an absolute deed of the lot, which the testator refused to execute, and G. Pell agreed to execute a de- feasance ; that, on the 4th of May, 1788, the testator executed the deed to G. Pell, who gave him a certificate that the deed was to operate as a mortgage to secure the payment of the 1,500 dollars, in ten years, with interest ; that the testator then went abroad and continued many y^fears, leaving all his papers with his uncle, Gilbert Pell, who, immediately there- after, took possession of Ihe lot, and of the rents and profits, and fraudulently destroyed the certificate of defeasance; that G. Pell died in 1 803, and by his last will devised the premises in question lo the defendant, whom he made his executor; that the rents and profits received by G. Pell were more than sufficient to satisfy the debt, and that a large surplus remained in (he hands of the defendant. The plaintiffs prayed a discovery of the rents and profits received, and whether the debt had not been paid and satisfied ; that the defendant might account, and be decreed to reconvey the lot, &c. The defendant, in his answer, admitted the seisin, &c. of Joseph Latham, and his will ; but he denied any title in the testator, since the 4th of January, 1785 He stated, that he did' not know, nor believe, that the testator, J. Latham, was indebted to G. Pell; that he knew nothing of any debt, except that J. L. executed a bond on the 4th of January, 1785, to G. P., for 50 pounds. He denied every allegation relative to the agreement for a mortgftge, and a certificate of defeasance. He admitted, tnat on the 4th of January, 1785, G. PeZZ agreed to purchase the lot for 635 pounds, and took a deed, in fee, for the premises; that G. Fell was uncle of the testator, who, soon after the deed 462 CASES IN CHANCERY. 595 was executed, left the state, and was absent for many years ; 1815. *but denied that he left any papers with G. P. when he went ^^^-v,-*,^ abroad. He admitted that G. P. took possession of the Marks premises, and received the rents, &.C., and died in March or ^^^^ April, ISOZ, having, by his will, dated in December, 1798, r*596 i devised the premises to the defendant, his executor, who had taken possession, &c. The defendant insisted, that the purchase by G. P. was for a valuable consideration, and absolute ; that, if intended as a mortgage, there had been no attempt to redeem since 1785 ; that he found, among the papers of his testator, the bond of J. L. for 50 pounds ; that he could not ascertain the amount of the rents and profits received by his testator, during his life ; that the widow was entitled to one third of the rents, as her dower, which had been paid to her ; that he had paid large sums for assessments, &.C., and for repairs. Stephen Latham, a witness for the plaintiffs, stated, that, in August, 1802, he went with Joseph Latham, who had come to New-Yorlc, from the southward, to his uncle, Gilbert Pell, when a conversation took place between them, in which Joseph Latham asked G. Pell, if the rents of the house and lot in question had not been sufficient to satisfy the boird, and that, if they had not been sufficient, he would endeavor to discharge what was due; that G. P. answered, that the bond had stood a long time, and that it was out of his powe; to give any account of the rents ; that J. L. then told him, that he had promised, when he (J. L.) went away, to keep an account, to charge him for repairs, and credit him with the rents : that G. P. answered, that he had done so for a long time, until, at length, he got tired of it, and, being angry, he threw all the papers into the fire ; and the witness under- stood that the receipt, or defeasance, was one of the papers so destroyed ; but, on being asked if the deed was also destroyed, G. P. answered in the negative ; that /. L. then said, to G. P. that he must recollect that he had given to him (J. L.) an indemnifying receipt, purporting that when the bond was paid, the deed must be given up, all which, the *witness deposed, G. P. acknowledged, and did not con- [ * 591 ] tradict. That G. P. told J. L. that if he would pay 1,000 pounds, he might have the property, but refused to render any account. The witness, also, related a conversa- tion between J. L. and G. P., when the former was about ffoing to Carolina, in which G, P., said, that as J. L. was about going to a sickly place, and might die. and some person might get possession of the receipt, and thereby of the house and lot, that he had better leave the receipt with him, G. P., which J. L. said he would do. Threj other witnesses, examined on the part of the plain- 463 597 CASES IN CHANCERY. 1815. t^ffSj testified to similar confessions and acknowledgments ^,<^-v-^-./ by G. Pell, that the premises belonged "' his nephew J Marks LatKam, and that he, G, Pell, had X^ken them ns security Pe^ll. for a debt. The witness to the deed of the 4th of January, 1785, was examined, who said he did not recollect any deed of defeasance, nor that any thing was said about it. He had some recollection that J. L. was indebted to G. P., and that the deed was executed to him on that account ; but a written memorandum, signed by him the 19th of June, 1804, stated that J. L. owed G. P. 600 pounds, and upwards, and that G. P., fearful of losing the debt, obta,ined the deed from /. L. of a house ; but whether-the sale was absolute and final, or only as security, he could not recollect. The witness was 73 years of agej infirm, and of weak memory. The cause was argued by Hoffman and Anthon, for the plaintiffs ; and by T. A. Emmet, for the defendant. The Chancellor. The bill is in the nature of a bill to redeem a mortgage alleged to have been given in January, •1785, by Joseph Latham to Gilbert Pell. The answer sets up an absolute purchase by a deed in fee, and denies the existence of the mortgage. The plaintiffs undertake to establish the charges in the bill by parol proof. This proof consists of confessions made by Gilbert Pell, that the deed ' * 598 ] *in question was taken and considered by him as a mortgage ; and that he kept an account of the rents and profits for a number of years, and then destroyed all those accounts, together with a certificate in the nature of a defeasance, given by him at the time of the execution of the deed. I am of opinion that the proof is not sufficient to support the bill. My objection is to the nature of the proof It consists wholly of certain confessions made by Gilbert Pell in certain conversations. There is not a single fact, exclusive of those confessions, in support of the charge. Gilbert Pell takes a deed, iij fee, of the lot in question, in January, 1785, and enters immediately into possession. A subscribing witness to the deed is examined, and he is the person who drew the deed. He has no recollection or knowledge of any , certificate, or receipt, or other paper in the nature of a defeasance, though it was understood that Latham was indebted at the time to Pell. This deed was, as he states, freely and understandingly executed ; and it was acknowl- edged, in February, 1785, by the grantor, before a judge of the Supreme Court. Frotn that time to the death of Gilbert PeU,m 1803, he possessed and used the property as owner; 464 CASES IN CHANCERY. 59ri and since his death the defendant, as devisee, has also pos- 1815. eessed and used it as owner. Hereisaperiodof near 30 years, v_*»-n^-^-- in which the premises in question have been enjoyed under Mark- that deed ; and it would appear to me to be very dangerous Yzii. to destroy that title by means of certain parol declarations alleged to have been made by Gilbert Pell, in his lifetime, and which no person now living has the means to contradict. I agree to the doctrine in the cases cited, that it is competent to show, by parol proof, that the deed was taken as a mort- gage, and that the defeasance was destroyed by fraud or mistake ; and I agree further, that length of time is no bar to a fraud, or to redemption of a mortgage, where the mortgagee has treated it all the time as a mortgage, or where it was originally agreed that he was to enter and keep possession until he *was paid out of the profits. (1 Vern. \ * 599 ] 4ia. Free, in Chan. 526. 1 Powell on Mart. 411. Cases temp. Talb. 61. 2 Ves. jun. 84. 1 Day's Rep. 139.) My difficulty is, that there is not the requisite legal proof of any of these allegation? There is not a single voucher or docu- mentin writing, nor a single fact, or act, or deed of Gilbert Pell, that supports the charges. The whole rests on the naked, unassisted confessions of Pell, made to, or in the presence of, certain witnesses, about 17 years after he had been in the peaceable occupation of the premises as apparent owner. It viras once observed in the Supreme Court, (6 Johns. Rep. 21.) that acknowledgments of the party, as to title to real prop- erty, are generally a dangerous species of evidence ; and though good to support a tenancy, or to satisfy doubts m cases of possession, they ought not to be received as evidence of title, as it would counteract the beneficial purposes of the statute of frauds. That doctrine strikes me as just and sound, and principles are es.sentially the same in both Courts. The evidence of the existence and destruction of the receipt, operating as a defeasance, is quite lame, even from the confessions of Gilbert Pell. The proof is rather negative, and proceeds more from his silence than his acknowledgmini. There is another objection to the charge: these alleged confessions were made to Joseph Latham, in 1802; and yet, at the same time, Gilbert Pell refused to render any account, and demanded 2,500 dollars for the lot. This was incon- sistent with his other confession of right and equity in Latham. But why did not Latham, then, prosecute for the ' land? He could have made PeZZ disclose the truth by his answer in this Court. Instead of which Latham, who had already abandoned the lot to Pell for 17 years, goes abroad, and leaves his claim dormant, and dies in 1806 ; and tho claim is now, after many years, and for the first time, brought forward in this Court by his representatives against the Vol, I. 59 466 599 CASES IN CHANCERY. 1815. representative of Pell. It rests entirely on certain conver- sations, which are extremely liable to be misunderstood 61 perverted ; *and yet are very unassailable, as they are sworn to under the cover of time, and the death of Pell. It appears to me that, under all the circumstances of this case, it would be setting a dangerous precedent, to give effect to this stale claim, upon such uncorroborated and loose con- fessions. I shall, accordingly, dismiss this bill, but without costs. Decree accordingly In the Matter of Wendell, a Lunatic I'his Court having the whole jurisdiction, in regard to idiots and luna- tics, it will direct the course of proceeding, on the traverse of the in- quisition returned, in such manner as may be most useful and expedi- ent, so as best to inform its conscience, and afford the safest conclu- sion as to the existence of the fact of lunacy. The lunatic may be brought into Court, after the inquisition is returned, and an inquiry be made, by inspection, or an issue may be awarded to ascertain, by a verdict at law, the existence or continuance of the lunacy. The most usual and proper course is, to have the issue made up and prepared for trial, under the direction of this Coiirt, instead of deliver- ing over the record and traverse, after the attorney-general has join- ed issue thereon, to the Court of law, as practised in England, under the statute of 2 and 3 Edw. VI., which has not been re-enacted ot adopted here. At the time of directing the issue at law, the Court will, if necesiiary, make a provisional order for the care of the lunatic's estate, until the question of lunacy is determined. iVOT, i4tli. ON the 19th of August last, a commission, in the nature of a writ de lunatico inquirendo, was issued, directed to certain commissioners, 10 inquire of the lunacy of A. H. Wendell, of the town of Water Vliet, in Albany county. It was founded upon the petition, &c. of Sow A. Fonda, and Francis Lansing, j'un. The commission was duly executed on the 29tli of August, and it was found that * 601 ] Wendell *was a lunatic, ^.»~s^-^^ vice of a copy of this order, then the order for an issue Bedki l shall be deemed discharged." Bedki.i. *Bedell against Bedell. [ * 604 j On a bill by the wife against 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 yeai-s ; that the plaintiff, in the mean time, should have the custody and care of the child, a daughter; and that the defendant should pay 100 dollars a year, in half yearly payments, one half to be applied to the mainte- nance of the plaintiff, and the other half to the maintenance and edu- cation of the child, it appearing from the master's report that the de- fendant was worth about 3,500 dollars, and his annual income about 100 dollai-s ; and the defendant was directed to pay the costs of this suit. 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. BILL filed by the wife against the husband for a divorce Aoo. nth. from bed and board, for cruel usage, and, also, for a main- tenance, out of the husband's estate, for herself and child. It charged that the parties were married in 1807, and be- tween that time and November, 1813, when the plaintiff abandoned him, the defendant was in the , habitual practice of beating her, and otherwise treating her in a cruel and in- human manner ; and many instances of cruel treatment were specified. The bill charged that the defendant is addicted to intemperance; and that they have one child, a girl, 6 years of age. The answer admitted occasional intoxication, and that he struck the plaintiflf in 1808, and occasionally in 1809, and sometimes in 1811, and treated her with more severity than formerly. The defendant admitted that he turned her out of the house, and struck her, and treated her harsUy in 1813, but it was owing to a belief of an illicit intercourse between her and 71 B., in that year. That when she went away, in 1813, she took away considerable of his property ; and be *stated, particularly, the suspicious conduct of the plaintiff [ * 605 J in respect to T. B. The cause was put at issue, and much testimony taken ; and on the hearing, in June, 1815, a reference was direr'pd to 469 605 CASES IN CHANCERY. 1815. a master to take an account of the estate of the defendant, v«<*-\^-«»_^ and the value of what was taken away by the plaintiff. Bedell The master's report stated, that the plaiiitiflF had taken Bedell. away personal property to the amount of 300 dollars, and upwards ; and that the estate of the defendant, exclusive of debts and charges thereon, was worth .3,500 dollars, but would not produce an annual income of above 100 dollars. The cause came on to a hearing on the report, and gene- rally on the pleadings and proofs. H. Bleecker, for the plaintiff. Riggs, contra. The Chancellor. Here is enough shown and admitted to justify and require a separation of the parties. But as it is alleged that the defendant is reformed, as to his intemper- ance, and as the parties are young, it is possible that a tem- porary separation will be sufficient for correction and admo- nition. I shall give them an opportunity, at a distant period, of reentering into their duties, and of seeking for mutual consolation and happiness in conjugal life. The statute authorizes a decree of divorce from bed and board, for un- kind treatment, to be forever, or only for a limited time. The charge set up in the answer, of licentious conduct in the plaintiff, in 1813, would, if true, greatly diminish her claim to maintenance ; and if the misbehavior had existed before the first cruel usage on the part of the defendant, it would have destroyed, altogether, any just claim for maintenance. (^fVaiJcyns v. Watkyns, 2 Atk. 96.) But the charge in the answer is very materially weakene.d, and left to rest in doubt and suspicion ; and it is to be observed, that the defendant [*606] *was unkind and cruel, and was in ^.he habit of beating his wife, for years before the charge arose. Under a due regard to the circumstances of the parties, and their future hopes and expectations, I shall decree: That the parties be divorced from bed and board for five years. That the plaintiff be entitled, during that time, to the custody and care of her daughter. That the defend- ant pay 100 dollars a year, in half yearly payments, towards the maintenance of the plaintiff and the child ; and that one half go to the maintenance of the plaintiff, and the othet half towards the maintenance and education of the child and that the defendant pay the costs of this suit. Decree accordingly. 470 CASES IN CHANCERY. 606 1S15. PoMEROY against Pomeroy. poberot [Applied, 4 Paige 93.] PoMERor The 12th section of the act concerning divorces, (sesa. 36. ch. 102. 1 M 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 ofadidtery, though the bill contains, also, a distinct charge of cruel and inhuman treat- ment. It seems, that the charges ofadtdtery and cruel treatment cannot both be contained in the same bill. BILL by the wife against her husband, for a divorce, on a If"*- "•*• charge of adultery, and, also, of cruel usage. /. Hamilton, for the defendant, moved for a rule that the plaintiff cause security for costs to be filed, before the de- fendant be obliged to ansnrer that part of the bill relating to the cruel usage ; he relied on the 12th section of the act concerning divorces. (Sess. 36. ch. 102.) D. Rodman, contra. *The Chancellor said, that if the bill had gone only for * 607 ] a divorce from bed and board, and for cruel usage, the statute referred to would have applied, and the defendant would have been entitled to such security. But though the bill had such a charge, it contained, also, a charge of adultery ; and he doubted whether both charges could be contained in the same bill, since the one charge required an answer on oath, and the other did not, and since a confession of the one charge was conclusive, but not as to the other, and as the decrees were essentially different in the two cases. At any rate, he should look, for the purpose of this motion, to the weightier charge of adultery ; and the defendant was not en- titled to security for costs in such a case, unless, perhaps, under some extraordinary circumstances. The statute did not apply to such a bill as this, but only to a bill simply for a divorce from bed and board. If security be taken, it must be for the costs of the suit at large, and could not be taken for a distinct ingredient in the bill- Motion denied. 471 607 CASES IN CHANCERY. 1815. Wiser V. Blackly. Wiser, an infant, &c., against Blachly and the Ex- ecutors of Vail. [Diatingnished, SI Hnn 816, 317; 69 N. T. 87, 90. See 5 Paige 134.] Where a replication is filed, and a cause set down for Clearing, witlioiit any rule having been entered to produce witnesses, it is a waiver of a replication ; and the defendants are entitled to the benefit of their angwers, as if the cause had been set down on bill and answer. Where a bond, given by a surety for the guardian 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 infant. Where the intentioli is manifest, this Court will always relieve against mistakes in agreements, an*? that as well in the case of a surely as in any other case. isih.' THIS cause coming on to a hearing, H. Bleeckei for the [ * 603 ] *defendants, objected to the hearing, on the ground, that to the answers of the executors replications had been filed, and that no rule had been entered to produce witnesses. Riggs, contra, said, that as the cause was set down for n hearing, without such rule, it was a waiver of the replication and the defendants were entitled to the benefit of the an^ swers, as if the cause had been set down on bill and answer. The Chancellor said, this was the consequence, and the objection was overruled. The bill was filed against the defendant, Blachly, as guar- dian to the plaintiff", charging him witll wasting the personal estate, and the rents and profits of the real estates, belonging to his ward ; and that he was insolvent, &c., and prayed for an account ; and that he be discharged from his trust ; and, also, charging that the testator of the other defendants was surety for the guardian's fidelity, and praying that they might mabe good whatever the guardian is unable to pay of what was due to the plaintiff". The answers admitted the guardianship and security as charged, but the devastavit and the insolvency were denied, though the guardian stated an account of property received by him as guardian ; and the executors insisted that the bond ought to be sued at law, and there only. Some proof was taken in the cause. Riggs, for the plaintiff", contended, 1 . That the guardian had received property, and for which he must account, and that it ought to be referred to a master to take an account, 472 CASES IN CHANCERY. 60a and to report whether he be a fit and proper person to con- 1815. tinue guardian. ^^^-s,--*^-- 2. That the surety was holden, though the bond taken by Wiskr the surrogate was incorrectly taken, and not according to the ^^ J,-^^ form prescribed by the act, (sess. 25. ch. 1 10.) as it was *taken in the name of the people, and not to the infant. That [ * 609 J this Court will correct such a mistake, and enforce the bond according to the agreement and intention of the parties. He cited 1 Ves. 456. 3 Atk. 388. 1 Bro. 269. 1 P. Wms. 60. 277. 334. 2 Chan. Cas. . yed the money belonging to his intestate's estate in his 1815. bus'.ness or trade, whereas the pleadings and evidence in the .^^-~s^-«ii»^ cause do not warrant such a conclusion. Schieffelis V. Van Vechten and H. Bleecker argued, for the plaintiff, in support of the exceptions. They cited 1 Vesey,jun. 99. 2 Atk. 410. 534. 604. Free, in Ch. 254. 1 Bro. 375. 384. 3 Bro. 74. . Henry, contra, cited 4 Vesey, 620. 7 Vesey, 129. 11 Fesey, 59. 99. 12 Vesey, 388. The Chancellor. As the plaintiff took no exception to the testimony taken before the master, and has not shown, by affidavit, what that testimony was, nor called upon the mas- ter to report the facts, I have a right to presume, that the master had sufficient evidence before him to warrant the conclusion, that the plaintiff had used and employed the .Tioney belonging to the estate in his business or trade. The master says, that the fact of the appropriation of the assets by the plaintiff to his own use, appeared from the vouchers submitted in taking the account, and from the examination of the plaintiff. How can I say, then, that this allegation is not correct and true ? I am bound, as the case is now before me, to consider every fact stated in the report to have been duly established by competent proof; and the only real question in the case is, whether the charge of compound interest be proper. It has been settled, by repeated decisions, that executors and administrators are not entitled to any commission for executing their trust ; and it is equally well established, that they must, at all events, pay interest upon moneys of the estate converted to their use. These two points I was led to examine, with much care, in the cases of Dunscomb v. *Dunscomb,-f and of Manning v. Manning,^ and to which it [ * 624 ] will now be sufficient for me to refer. The only point worth t Ante, p. soa considering, is the compound interest which the master has * "**' ■"■ * allowed. No just complaint can be made of the time from which the computation of interest began. The plaintiff was allowed nearly two years to settle the estate, without being charge- able with interest. For a considerable part of that time he had a large balance in hand, and the time was amply suffi- cient, in this case, to close the concerns of the administration, and the debts were all paid within that time, with one or two trifling exceptions. It was the duty of the plaintiff, from that time forward, to have made distribution of the assets, or placed them in a situation to become productive, 483 624 . CASES IN CHANCERY. 1815. ^nd to accumulate for the heirs. He did neither, but cm v_i»-^,^-*»^ ployed the money in his own business, or trade, or in makinj^< ScHiEFFtLiK large loans for his own benefit ; and as he has not disclosed Stewart. (^^ jie~ might have done to the master) what were the profits of the assets so employed, it appears to me, as well on prin- ciple as on authority, that he is justly chargeable with the interest contained in the report. The only way for the plaintiff to avoid this conclusion, was by fairly disclosing what he had made by the use of the money. The Courts were, anciently, quite lax on the subject of these personal trusts, and allowed executors to convert the moneys of the testator to their own use, without any account for interest. This must have been the source of great abuse, and was unjust towards the cestuy que trust. With such a pecuniary privilege, the office of trustee, as Lord Loughborough expressed himself, would be canvassed for This blemish in the English jurisprudence was corrected as early as the case oi Ratcliffe v. Graves, (i Vern. 196. 2 Ch. Cas. 152.) in which the lord keeper held, and, as it is said, against many precedents, that the administrator musi pay interest for the moneys of the estate employed in his own business ; and he laid down this principle, which, runs [ * 623 ] *through all the subsequent cases, that an executor ought not to turn the money to his own private advantage. The rate of interest is not stated ; and, from different reports of that case, it is uncertain whether the mbney was employed by the administrator in trade or in loans. The recognition of the principle was, however, a great improvement ; but the modern cases have felt the necessity of explaining and defin- ing the duties and responsibility of i the trustee with more precision, in order to give greater efficacy to the just and salutary doctrine, that a trustee shall never be permitted to make gain to himself of the trust property. In Newton v. Bennet, (1 Bro. 359.) the executor mixed the testator's money with his own, and applied it in the course of his trade ; and the master, in taking the account, made rests every year, and reported a large balance against the defendant ; and the question was, whether he should pay interest /or the sums, from time to time, in his hands, and it was decreed that he should. In this case I should conclude, that compound interest was allowed, though the making of periodical rests, in taking an account, seems not, of itself, necessary to imply it. Accounts have frequently been di- rected to be taken with annual rests; (2 Atk. 410. 534 o Bro. P. C. 319. old edit.) perhaps to see whether in- terest ought to be charged, or to relieve the defendant in the application of his payments ; and in one instance they were expressly directed to be made without prejudice to 484 CASES IN CHANCERY. 625 the question of interest. (16 Fesey, 97.) Whatever might igis. have been the fact, in the case above cited, it is certain that ._^-s,^-«^ the allowance of compound interest is often essential to carry ScHiErFELu into complete effect the principle of the Court, that no stew'^rt profit, gain, or advantage, shall be derived to the trustee from his use of the trust funds. All the gain must go to the cestuy que trust. This is the true equity doctrine. It secures fidelity, and removes temptation ; and it is the ground of this allowance of annual rests, in the taking of the account, where the executor has used the property, and does not dis- close *the proceeds. The principle was more clearly en- [ * 626 forced in Treves v. Townshend, (1 Bro. 384.) which was the case of the assignee of a bankrupt who suffered the mon- ey of the estate to lie idle for years with his private banker. The chancellor considered money so placed as answer- ing the purpose of credit and trade, and though 4 per cent, was the usual interest of the Qourt, in a case of mere neg- lect to pay, yet it was presumed that the money was worth 5 per cent, to the assignee, and he was held to account for all the gain ; and 5 per cent, interest was, accordingly, de- creed, with costs. The same rule appears in a variety of other cases, (1 Feiey,ywn. 89. 4 Vesey, 620. II Vesey, 58.) in which the increase of interest to 5 per cent, was given to meet a presumed gain. In Pocock v. Reddington, (5 Vesey, 794.) an executor having been guilty of a breach of trust by selling out stock, and dealing improperly with the trust money, the cestuy que trust was allowed the option to have the stock replaced, or the proceeds of the sales, with interest at 5 per cent., or more, if more had been made by it. The observations of Lord Alvanley, in that case, are strong and impressive. The defendant " had very imprudently, and, he must say, very improperly, taken upon himself to lend the money of his ward to his own friends, and upon personal security, and for that purpose he sold out stock," &e. " That was a transaction that it was impossible to permit to pass without animadversion. He had no right to put it in that hazard. No man is justified in putting the property, of which he is trustee, in jeopardy. Therefore, he must an- swer for the money with what he may be supposed reasona- bly to have made ; and if he made more, he must answer for that too." But there are cases which not only contain the general principle, that a trustee using the trust money must account for all the profit of it, but in order to reach that profit when l is not otherwise ascertained, they adopt the very rule of computation contained in the report before us. *In Foster v. Foster, (2 Bro. 616.) the defendant was [ * 627 ' executor of a receiver, and the money was derived from the 485 627 CASES IN CHANCERY. 1815. rents and profits of land ; and the master was directed to v^^^-v,-^^ compute interest, at 4 per cent., on the balance he shi dd ScHiEFFELiK each year find in the hands of the receiver, and, also, of the "Stewart executor. In Raphael v. Boehm (11 Vesey, 92.) the dj rection was to take an account against the executor, whci was a trader, and to compute interest, at 5 per cent., on moneys in his hands from the time he received it, and in such computation to make half yearly rests for the very purpose of allowing compound interest. This was carrying the rule far beyond the present report, and the case led to a full and • able discussion of the whole principle ; and the general rule was sanctioned by Lord Eldon, under the influence of all that caution and anxious inquiry for which he is distinguished. It was declared, in that case, to be the general understanding of the masters, that where rests were directed to be made in taking an account, they were to be made with the view of computing compound interest; and it was admitted by the counsel, who opposed the allowance, that if a trustee had made, or if there were ground to infer that he had made, com- pound interest, or more, he must account accordingly. The chancellor observed, that the charge of compound interest, _ in that case, was consistent with every view of moral justice ; and that the Court would shamefully desert its duty to in- fants, by adopting a rule that an executor might keep money in his hands without being answerable as if he had accumulated. The same rule was, afterwards, adopted by Sir Wm. Grant, in Dornford v. Dornford, (12 Ves. 127.) It would be easy here to show, as was done in that case, the injustice tjj the infants in denying compound interest, and the direct gain that would be permitted to the plaintiff. Thus, in July, 180.5, he had in hand 33,000 dollars of moneys belonging to the estate, and no debts to pay. In July, 1806, he received, (as we must presume.) for the use of that fund, in his trade and by his loans, at least, the simple *628] *interest, or 2,310 dollars. That sum he will, then, retain in his business for nine years, or to the taking of the account, free of interest. The next year, or July, 1807, he receives another year's interest, and will then have in hand, of in- terest, 4,620 dollars, to be used for his own advantage, for eight years, free of interest. The third yeiar he will have in hand near 7,000 dollars, to be retained for seven years, with- out interest, and so on down to the date of the report. The fund, instead of accumulating for the benefit of .the infants, accumulates for his benefit. In this W3f, as Lord Eldon observed, the property would 'be nearly ^»-N^-"w^ quently, denied. Pakker The same motion is now renewed, and accompanied with Gbant. ^n affidavit of one of the defendants, disclosing the merits ol the defence. This is an application to the grace and favor of the Court, to let in a party to defend, after a decree has been regularly entered against him by default. To whom tlie neglect to defend in proper time is to be attributed, I am not able to say, as .the defendants, and their soHcitor, ac- cuse each other of that delay. But I am now put in pos- session of the real defence, and, admitting all that is stated ill the petition, I am of opinion, that the purchase of the ticket was a fraudulent speculation, undeserving of favor. I will not set aside a decree fairly and regularly obtained, to let in such a defence. The motion is, therefore, denied, with costs. Order accordingly. ZMS QV TBE CASSS. INDEX. A. ACCOUNT. Vide Fkaud, 5, 6. Interest, 1. 3, 4. Mortgage, IV. Partnkrship, 3, 4, 5. ADMINISTRATION AND ADMI- NISTRATOR. Vide Executor and Administrator. ADULTERY. 1 Where a bill for a divorce, on the ground of adultery, is taken pro confesso, or the defendant, in his answer, admits the adultery charged, and a reference is made to the master, under the 3d sec- tion of the act concerning di- vorces, (2 N. R. L. 197, 198.) to take the proof of the adultery, and to report thereon, &.c. ; by the proof to be taken by the master, i? meant legal proof generally ; and he may, therefore, receive prbof of the confession of the de- fendant, which must, however, be connected with, and supported by, other proofs, before the Court will decree a divorce a vinculo matri- monii. Betts V. Betts, 197 a But by the 51st rule of the Court, June, 1806, evidence of the con- fessions of the defendant is not admissible at all, on a feigned is- sue awarded to try the fact of adultery. Whether this rule has not gone too far in rejecting this species of proof altogether ? Qutsre. ib. 3 To give the Co'irt jurisdiction to decree a divorce, a viniulo matn- monii, on the ground of adultery, when the marriage was solem- nized abroad, it must clearly and distinctly appear, from the bill, that both parties were inhabitants of the state at the time the adul- tery was committed. Mix v. Mix, 204 4. To entitle a party to sustain a bill for a divorce, he must be an ac- tual and bona fide inhabitant of the state at the time of the adul- tery committed, and at the time of exhibiting the bill. William- son V. Parisien, 389 5. Where the plaintiff, a native of Scotland, married his wife in New- Yorlc, in 1780, and left her in 1784, and went to the West In- dies, and continually resided abroad, excepting only a short visit to New-York, in 1792, until the time of filing his bill for a di- vorce, in 1813, a period of 28 years; it was held that he was not an inhabitant of the state, within the words or intent of the act. ib. 6. A decree of divorce, a vinculo matrimonii, though the adultery is fully ascertained, is not granted, of course, in all cases. Williatn- son V. Williamson, 488 7. If the husband, subsequently to the adultery, cohabits with his wife with knowledge of her guilt, it is a remission of the oiTence, ' and a bar to a divorce. ib. 8. Lapse of time, also, or a long ac- quiescence of the husband, without any disability on his part to sue, 491 f)34 INDEX. will be a bar to a prosecution for a divorce, ih. 9 As, where a husband having been absent from his wife for eight years, in a foreign country, and she, supposing Kim to be dead, married another person; and the first husband, afterwards, return- ed, and finding his wife cohabiting with her second husband, without taking any steps to obtain a di- vorce, went abroad, and continued absent for twenty years, and then returned again, and filed a bill for a divorce against his wife^ who was living with her second hus- band, by whom she had several children ; the Court, though the counsel of both parties consented to a decree, dismissed the bill, with costs. ih. Vide Divorce. AFFIDAVITS. Vide Practice, IV. 16, 17, 18. AGENT. I. An agent or trustee, undertaking a special business, cannot, on the subject of that trust, act for his own benefit to the injury of his principal. Parkist v. Alexander and others, 394 3 If an agent undertakes to judge whether he may not, innocently, depart from the instructions of his principal, he does it at his peril. ib. AGREEMENT. I. Consideration. II. Specific Performance. I. Consideration. 1. In regard to chattel interests, an agreement under seal imports a consideration at law. Sunn and others v. Winthrup and others, 329 2 And a voluntary bond, or deed, 492 of a cha tcl interest) will be sup- ported in equity without consid- eration, ib. 3. A ctstuy que trust, though a mere volunteer, and the limitation with- out consideration, is entitled to the aid of this Court ; but the rule is otherwise where the party seeks to raise an interest by way of trust, on a covenant or executory agree- ment ib. A. Provision for the mother of a bas- tard, and for her infant., is a suffi- cient consideration to support a bond, or a deed of personal chat- tels, made by the father of the child for that purpose. ib Vide Failure of Consideration. Fraudulent Conveyances, 1, 2, 3, 4, 5, 6. II. Specific performance. 5. Where a bill, filed to compel a performance of a parol contract, to compensate the plaintiff for the use of his land, could not be sustained, the contract not being valid by the statute of frauds; yet this Court retained the bill, and awarded an issue of quantum dam- nificatus, to assess the damages sustained by the plaintiff by the acts of the defendants, as the plaintiff had sustained an injury for which he ought to be compen- sated, and for which he had no , remedy, or, at best, a doubtful and inadequate one, at law. Phillips V. Thompson and others, 132 6. So, where possession had been taken of land, and improvements, made under an agreement void by the statute of frauds, for a convey- ance or lease, although an exe- cution of the agreement will not be decreed on the ground of part performance, yet the bill will be retained for the purpose of afford- ing the party a reasonable com» INDEX 633 pensation for beneficial and lasting improvements. Parkhurst and others v. Van Cortlandt, 'UTi 7. A Court of equity will never de- cree performance where the rem- edy is not mutual, or one party only is bound by the agreement. S. C. 282 S. P. Benedict v. Lyncli, 370 8. Where A. contracted to convey to B. " by a good and valid convey- ance in law," a farm, which was originally parcel of a large tract of ground granted by the proprie- tor of a manor to the ancestor of A., in fee, " yielding and paying to the grantor, his heirs and as- signs, the yearly rent of ten shil- lings ;" the proportion of which quit-rent, on the farm, was 54 cents a year; the existence of the quit-rent being known to B. at the time of the contract, it was held that the existence of such an in- cumbrance, if it were any, was no objection to a decree of spe- cific performance of the contract. Ten Broeck v. Livingston, 357 9. Whether such a quit-rent, not having been demanded, or paid, for above 60 years, will not be presumed to have become extin- guished by lapse of time ? Qucs- re. ib. 10. 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, or subsequent waiver by the other party, the Court will not help the party in default. Benedict v. Lynch, 370 11. Where A., in March, 1810, agreed to purchase a farm of B., and to pay 250 dollars in one year ; one third of the residue of the pur- chase money in one year there- after ; and the other two thirds in the two successive years ; and, on the payments being made, B. was to give a deed ; and, if he failed in the payments, or either of them, the agreement was to be void ; and A. entered into posses- sion under the agreement, and made improvements, but made no payments ; and B.j in October, 1813, above two years after the first default, supposing the agree- ment void, or abandoned, sold the farm to a third person ; a bill filed by A., in 1814, on a tender of the whole purchase money, for a spe- cific performance of the agree- ment,was dismissed, with costs, ib. Vide Decree, 1. Evidence, II. 14. Fraudulent Conveyances, S. Jurisdiction, 10. ALIEN. 1. An alien enemy may take personal property by succession, as next of kin, and is entitled to a distrib- utive share, under the act for the distribution of intestate estates ; though he cannot recover it daring a war; but it remains in the hands of the administrator, in trust, for him, until the return of peace. Bradwell and others v. Weeks, 206 2. An alien enemy does not forfeit his right of property. S. C. 208 3. An alien enemy, who is permitted to remain in the country, or who is brought here as a prisoner of war, may sue for his rights. " ib. ALIMONY, Vide Divorce, 1, 2, 3. 5, 6. AMENDMENT. 1. Where a bill on demurrer is dis- missed for want of eq lity, on the merits of the case, as stated, leave to amend the bill will not be granted. Lyon and Brockway v. Tallmadge and others, 184 2. Amendments are granted only where there is some defect, as to parties, or some omission, or mis- takej of a fact, or circumstance connected with the sut stance of 493 636 INDEX ihe case, but not forming the sub- stance itself, or where there is some defect in the prayer for re- lief, ib. 3. The 11th rule of June, 1806, al- lowing the plaintiff to amend his bill of course, at any time before answer, plea, or demurrer filed, does not apply to the case of a bill stoorn to by the plaintiff, as an injunction bill. Parker and Bliss V. Grant and others, 434 ANSWER. Vide Evidence, I. 1. Pleading, HI. APPEAL. 1. An appeal, in the first instance, stays all proceedings in this Court on the matter appealed from ; and if the defendant wishes to proceed, notwithstanding the ap- peal, he must apply to the chan- cellor for leave ; and unless the Court of Errors be at the time actually in session, and have the cause before them, this Co*rt must exercise its discretion as to the propriety of allowing the de- fendant to proceed. Green and others v. Winter, 77 2. 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, &c., relative to his trust. - ib. 3. On appeal from this Court, the decree or order of the Court of Errors becomes, to this Court, the law of tne case ; and the party can have no other or further re- lief than what is administered by the decree of the Court above. Gelston v. Codwise and others, 189 4. A Court of review gives such de- cree as the Court below ought to have given ; and when the plain- 494 tiff below brings the appeal, the Court above not only reverses what is wrong, but decrees what is right, and models the relief ac- cording to its own view of the enjis of justice, and the exigencies of 'the case. S. C. 194 5. The 37th rule of this Court, made June 7th, 1806, requiring the par- ty appealing from a decree or or- der of this Court, to deposit 100 dollars with the register or assist- ant register, to answer for costs, &c., is an equitable and salutary rule, intended to prevent delay and abuse. Bradwell v. Weeks, 325 6. The practice on an appeal is to lodge the appeal in the register's office; and the Court above is not possessed of the jurisdiction of the cause, until the petition of ap- peal has been presented to them, which cannot be until they are in sessiqn. S. C. 326 APPEARANCE. Vide Practice, II. ARBITRATION. Vide Award. ASSETS. Vide Executor and Administra TOR, I. ASSIGNMENT. Vide Evidence, II. 2. ATTORNEY AND CLIENT. Vide Fraud, 1. AWARD. 1. Arbitrators, after a witness had been sworn and examined, and they were left alone to deliberate on their award, called the witness again, and, without the knowl- edge or presence of the parties, examined him as " to matters ma" terial to the controversy, on which he had before given testimony, INDEX. 6Tt but about which the arbitrators differed as to what the witness did testify on the fornaer hear- ing." An injunction to stay a suit at law, on the arbitration bond, for the performance, of the award, was refused. Herriclc v. Blair and Blair, 101 2. Awards cannot be impeached, or set aside, unless for corruption, partiality, or gross misbehavior in the arbitrators, or for some palpable mistake of the law or the fact. ih. 3. Where a cause is referred by con- sent of parties, under an order of Court, and the referees, who were two lawyers and a merchant, were to decide all questions in dispute between the parties, as well matters of law as of fact ; and a question of law, as to a will, put in issue by the pleadings, and discussed before the referees, was decided by them ; it seems this Court will not interfere with the award, unless a gross and palpable mistake is shown. Roose- velt and others v. Tkurman, 221 4. This Court will not grant an in- junction to stay an action at law on an award, on the ground that the plaintiff was surprised by the principal witness, for the defend- ants, swearing falsely before the arbitrators ; and that he could have proved the falsehood of the testimony, if the arbitrators would have adjourned the hearing for that purpose, which they refused to do, though requested by the plaintiff, whooffered to enlarge the time of making the award. Wood- worth v. Van Buskerk and Slocum, 432 B. BARON AND FEME. I. A husband is accountable for the personal estate of his wife, se- cured to her separate use by a deed of marriage settlement, and which has come into his hands during he coverture ; but not :ot interest on moneys he may have received for debts due to her. Methodist Episcopal Church v. Jaqy.es and others, 450 2. The husband is also 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 husband had conveyed an estate so purchased, with no tice of the manner of his acquir- 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 estate. ib. 3. Where, by a marriage settlement, the whole real and personal estate of the wife is secured to her separate use, the husband is, not- withstanding, bound to maintain his wife and family during the coverture, and cannot make the expenses a charge on her separate estate ; and th? consent, or agree- ment, of the wife, during cov- erture, that the expenses should be borne by her separate estate, is null and void. ib. 4. But the husband is entitled to an allowance for moneys expended in necessary reparations of the wife's' sepai-Site estate, and for any specific appropriation of her property, with her assent or di- rection, for her benefit, (not being for the ordinary maintenance of her or his family.) ib. Delivery of a deed of marriage settle- ment, vide Deed, II. 18. Vide Adultery. Divorce. Dower, Marriage. Nb Exeat, 4. Set TLEMENT, 1. BIGAMY. Vid( Marriage. 495 638 I N D E >- BILL OF DISCOVERY. Vide Discovery. BILL OF REVIEW. Vide Decree, 3. BOND. Vide Jurisdiction, 7, 8, 9. c. CANCELLING INSTRUMENTS. Vide Jurisdiction, 7, 8, 9. COLLATERAL SECURITIES. Viile Debtor and Creditor, 4. COMMISSIONS. 1 . The plaintiff and defendant were joint owners of a ship and cargo, on a voyage from New-York to Satmia, and back ; and the de- fendant agreed to go out in the ship as supercargo, and the plain- tiff agreed to pay him, as a com- pensation for the performance of the duties of a supercargo, the sum of 10,000 dollars, " out of the proceeds of any cargo the ship may bring from Batavia, 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 un- seaworthy, and ■ sold, with the cargo, and the proceeds remitted, by the supercargo, to New-York. The defendant having caused 8,000 dollars of the sum stipulat- ed to be paid to him by the agree- ment to be insured, as his commis- sions, he recovered the amount, in a suit at law, of the underwrit- ers, as for a total loss, on the ground that he had no remedy on the agreement against the plain- tiff, his compensation being paya- ble only out of a particular fund, which depended on a contingency that had never happened. On a 496 bill filed against the defendant loi an account, the defendant claimed to retain a certain sum for com- missions and for services iii the sale and management of the con- cern ; and it was held that the defendant was not entitled to any allowance, on a quantum meruit, for his services, merely on the ground that the contingency had never happened on which his spe- cific compensation for the same set- vice was to depend ; nor was he en- titled to any compensation for his services at St. Kitts, as he still acted in the character of supercargo, and the sales there were substituted for a saiein New-York, on which, by his special agreement, he was to receive no commission. Franklin and others v. Robinson, 157 2. Joint owners, or partners, are not entitled to charge each other for services rendered in the care and management of the joint property, unless there is a special agreement for that purpose. ih. COMPOUND INTEREST. Vide Interest. CONSIDERATION. Vide Agreement, I. CONTRACT. Vide Agreement. CONTRIBUTION. 1. Where a bond, payable in two in- stalments, was secured by a mort- gage on a mill, &c., and the debtor, afterwards, gave a second mortgage on six other lots of land, specifically, to secure the payment of the first instalment, but without reference to the first mortgage; and all the parties, afterwards, by an arrangement between them, declared the second instalment paid, and cancelled the first mort- gage, leaving the second mortgage to remain as security for the first 1 M D E X 6.ti> instalment ; and at a sale of the six lots, under a subsequent judg- ment, which was a lien on the equity of redemption in these lots only, A. purchased two lots, and B. four lots, knowing, al the time, the situation of the mortgage ; and B., afterwards, purchased the second mortgage, and filed a bill to foreclose; it was held that A. was bound to contribute towards the satisfaction of the principal and interest due on the first instal- ment, according to the actual relative value of the lots, and not according to the prices for which they were sold at the sheriff's sale. Cheesebrough. and others v. Mil- lard and others, 409 Vide Substitution. 2. Where six separate lots, or parcels of land, were mortgaged, and the mortgagee, afterwards, released four of the lots from the mortgage, leaving the original debt to stand ' charged on the remaining two ; it was held that the two lots were chargeable with their ratable pro- portion only of the original debt and interest, according to the relative value of the six lots at the date of the mortgage. Stevens and others v. Cooper and others, 425 3. Where land is charged with a burden, each part ought to bear no more than its due proportion of the charge ; and equity will compel each part to a, just con- tribution, ib. 4. And a creditor cannot, by any as- signment or act of his, deprive the co-debtors, or owners of the land, of their right of contribution against each other. ib. 3. P. Cheesebrough and others v. Millard and others, 409 5. The Court will compel the cred- itor to aid the contribution, by as- signing his bonds and securities to the debtor, or surety, or owner of the land, whom he charges Vol. I. 63 with his whole demand ; and they will not permit him, voluntarily, to defeat this right. Stevens and others v. Cooper and others, 430 6. A purchaser of part of lands mortgaged, from the mortgagor, is not bound to contribute ratably with a purchaser of the equity of redemption, under a judgment subsequently obtained, towards the discharge of the mortgage ; unless the residue of the mort- gaged premises proves insufficient to extinguish the debt. Gill v. Lyon and others, 447 CORPORATION. Vide Pleading, I. 5, 6. COSTS. I. Costs in general. II. Taxation. III. Security for costs. I. Costs in general. 1. Costs are in the discretion of the Court. Methodist Epis Church and others v. Jaques and others, 77 S. P. Nicoll V. Trustees of Hunt- ington, 166 2. Costs decreed against a trustee who had been guilty of negli- gence. Gray v. Thompson, 82 3. If a final decree is silent as to costs, they are lost, and cannot, afterwards, be ordered to be paid, unless, on a rehearing, the decree has been opened for that purpose. Travis and others v. Waters, 85 4. If a party dies before costs are decreed, they are lost ; the gene- ral rule being, that the costs die with the person ; but if costs have been decreed, and the party dies before they are taxed, they may be recovered by his personal repre- sentatives on a bill of revivor ; but, to obtain the costs, the exec- utors, or personal representatives, must be before the Court express- ly in their character as such ; for if the bill of revivor states the 497 640 INDEX. plaintiffs to be the heirs and de- visees of the party deceased, though some of them, in fact, are executors, yet they can only be known in their former characters, and not as executors. ib. 5. On a bill by a legatee against the administrator, where the defend- ant submitted to, and asked, the direction of the Court, his costs were ordered to be paid out of the fund. Morrel and others v. Dickey, 153 6. Costs in equity do not always follow the event of the cause ; but are awapded, or not, according to the justice of the case, in the sound discretion of the Court. Nicoll v. Trustees of Huntington, 166 7. And where a plaintiff had probable cause for seeking the aid of the Court, but failed in establishing his title; but the defendant showed none, or no better title to the property in dispute, the bill was disriiissed without costs on either side. ib. 8. An administrator, or trustee, who resists a claim, and litigates, bona fide, from a conviction of duty, and where no intentional default is made to appear, will not, under the circumstances of the case, be charged personally with the costs ; but they must be paid out of the assets of the intestate. Moses and others v. Murgatroyd, 473 9. A purchaser of land chargeable with constructive 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. Murray Sf Win- ter V. Ballou S^ Hunt, 566 Vide Dower, I. Executor and Administrator, III. Solicitor. II. Taxation. 10. It is too late, after two terms have intervened, and the decree is signed, to move for a retaxatioa 498 of costs. Morris ar.d another v Mullett and others, 44 11. The costs on exceptions, like costs in all other cases in chancery, are subject to the discretion of the Court. Methodist Episcopal Church and others v. Jaques and others, 66 12. But the general rule is, that if the defendant submits to the excep- tion, the plaintiff has his costs ; and if they be referred to a master, the plaintiff shall have costs on the exceptions allowed,, and the defendant his costs on the excep- tions disallowed, and the balance struck is to be paid. ib: III. Security for costs. 13. Though the 54th rule of the Court, (June, 1806,) where a non-resident 4les a bill, requires that security for costs should be filed; and if the solicitor for the plaintiff pro- ceeds without filing security, he is liable for costs to the amount of one hundred dollars ; yet the Court, if application for that pur- pose is made in due season, that is, before the answer is put in, or the first opportunity after the defendant knows of the fact of the non-residence of the plaintiff, will order all proceedings to be stayed, until adequate security for costs, that is, to a greater sum than 100 dollars, is filed by the plaintiff. In this case, the Court ordered a bond,- with surety, to be executed to the defendant, for 750 dollars, and filed with the register. Long V. Majestre Sf Tardy, 202 14. The 12th sect, of the act concern- ing divorces, (sess. 36. c. 102. 2 N. R. L. 197.) relative to secu- rity for costs to be given by the plaintiff, does not apply where the bill is filed on the ground of adul- tery, though the bill contains, also, a distinct charge of cruel and inhuman treatment. Pomeroy v Pomeroy, 606 INDEX 641 Security for costs on appeal, vide Appeal, 5. Practice, II. COURT OF ERRORS. Vide Appeal. CROSS BILL. Vide Pleading, II. 13. Practice, VII. 27. D. DEBTOR AND CREDITOR. I. A creditor is not allowed to make it a condition of a loan, that he shall receive a compensation for his services in procuring the mon- ey; as the allowing such a de- mand has a tendency to usury and oppression. Hine v. Handy, 6 !l And if the amount of such com- pensation is included in the secu- rity given for the loan, the Court will, on the debtor's paying into Court the amount reported to be due by a master, after deducting the sum charged for such services, grant an injunction (on payment of costs by the plaintiff) to stay any proceedings on the mortgage. ih. 3 The actual expenses of the writ- ings, or securities, are to be paid by the borrower. S. C. 7 4. Collateral securities to creditors are considered as trusts for the better protection of their debts ; and equity will see that their inten- tion be fulfilled. Moses andothers y. Murgatroyd and others, 119 5. A creditor filing a bill against an executor, cannot make a debtor of the estate a party, except where Ihe executor is insolvent, or there is collusion between the executor and debtor, or in some other special case, hong v. Majestre 4- Tardy, 305 6. As, where A. and B. carried on trade as partners, with the funds of A.J in the name of B., and, without any dissolution of the partnership, or rendering any ac- count to A., B., afterwards, with- out the consent of A., entered into a partnership with C, and carried into the new concern all the funds of the former partner- ship; and A., on the death of B., filed a bill against his administra- trix, and C, his surviving partner, for a discovery and account ; and C. demurred to so much of the bill as sought an account from him of the transactions and profits of the partnership between him and the intestate, and of the per- sonal estate of the intestate in his hands: the demurrer was over- ruled, ib. Contribution between co-debtors, &c., vide Contribution. Assets, legal and equitable, vide Ex- ecutor AND Administrator, I. Vide Mortgage. DECREE. 1. 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 and others v. Waters, 85 2. If a final decree is silent as to costs, they are lost, and cannot, afterwards, be ordered to be paid, unless, on a rehearing, the decree has been opened for that purpose. ih. 3. A decree can never be impeached by an original bill ; it can only be questioned by a bill of review. Gelston v. Codwise, - 195 4. A regular decree on the ineiits cannot be set aside on motion ; and it seems, that, where it is sought to set' aside a decree, on the ground of surprise and irregi ularity, he course is to apply by 499 642 INDEX. petition. Radley and others v. Shaver and others, 200 Appeal from decree, aide Appeal. Decree by default, vide Practice, I. DECREE OF THE COURT OF ERRORS. Vide Appeal, 3, 4. DEED. I. Construction, validity, and opera tion. II. Execution and delivery. I. Construction, validity, andoperation. 1. It is a general principle in the construction of written instru- ments, that a particular specifica- tion will exclude things not speci- fied. Nicoll V. Trustees of Hunt- ington, 183 2. Declarations of the intention or understanding of a grantor, differ- ent from the intent apparent on the face of a deed, or of conditions annexed to it, to be effectual, must be made at the time of exe- cuting it. Souverbye and wife v. Arden and others, 240 3. A mistake in drawing a deed must be clearly proved. ib. 4 As between the parties, a volun- tary actual transfer, by deed, of a chattel interest, is valid, without any consideration appearing. Bunn and others v. Winthrop and others, 329 .'>, Plate used in the family passes under a devise or conveyance of " household goods and furniture." ib. 6. A deed false in a material point is not entitled to full credit. Wendell v. Van Rensselaer, 352 7. Where a deed, in fee, contained a reservation of the right of " cutting and hewing timber, and grazing in the woods not appro- priated or fenced in ;" it was held ihat the right reserved ceased as soon as the premises were fenced 500 in by the grantee , espcciallj where it appeared tht t the prem- ises had been enclosed for above 30 years, and the right, during that period, had not been claimed or exercised. Ten Broeck v. Livingston, 357 8. Such rights may be lost by long negligence and disuse ; and pre- sumptions of their release, or dis- charge, are favored for the sake of quieting possessions. ib. 9. Where a deed has been duly exe- cuted and delivered, a subsequent surrender or destruction of it will not devest the estate conveyed by it; Nicholson v. Halsey ondothers, 417 Vide Evidence, II. 9, 10, 11. II. Execution and delivery. 10. 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 and wife v. Arden and others, 240 11. If a deed has been duly delivered in the first instance, the subse- quent custody of it, by the grantor, will not destroy the effect of the delivery. ib. 12. A deed may be delivered to a third person, &s the servant, or bailee, of the grantee, and such delivery will be valid. ift 13. A voluntary settlement, fairly made, is always binding, in equi- ty, upon the grantor, unless there be clear and decisive proof that he never parted, nor intended to part, with the possession of the deed; and, if he retain it, there must be other circumstances be- side the mere fact of his retaining it, to show that it was not in- tended to be absolute. ib. 14. If a defed be duly executed in the first instance, so as to fake effect, any subsequent delivery is null and void. S. C. 253 INDEX. 643 5 ^here a deed was deposited by the grantor with W., as an escrow, to be delivered to the grantee, on his producing a mortgage execut- ed and recorded, and a certificate of the clerk of no encumbrances on record, and W., on receiving the mortgage and certificate of registry, &,c., delivered the deed to the grantee, and the grantor received the mortgage, &c., from W., and treated it, afterwards, as a valid mortgage ; he was held to be concluded from denying the delivery of the deed, on the ground that the wife of the mort- gagor had not acknowledged the mortgage, and that the mortgage was erroneously registered for less than the true sum. Frost and others v. JBeekman, 288 16 A deed, delivered as an escrow, takes effect only from the time of the performance of the condition, and the actual delivery to the grantee ; except in cases where a relation back to the first delivery is necessary to give effect to the deed, or to the intermediate conveyances of the grantee ; but not as between third persons. Frost and others v. Beekman, 288 17. A voluntary conveyance, or settle- ment, though retained by the grantor in his possession, until his death, is good. Sunn and others V. Winthrop and others, 329 18. Where a deed of marriage settle- ment was executed in the pres- ^ ence of witnesses, and laid on the table, and the marriage took place immediately thereafter, in the presence of all the parties ; and the deed, without any other or more formal delivery, was taken by the wife, the cestui/ que trust, and kept in her possession until her death ; this was held, under the circumstances, to be a good and valid deed. Methodist Episcopal Church v. Jaques and others, 450 DEFAULT. Vide Practice, I. DEFEASANCE. Vide MoRTGA(,E, I. 3, DEMURRER. Vide PLE.iDING, IV DEPOSITIONS. Vide Evidence, III. DESCENT. 1 . Where the legal and equitable estates in land, being co-exten- sive, unite in the same person, the equitable is merged in the legal estate, which descends according to the rules of law. Nicholson v Halsey and others, 417 2. Thus, if the legal estate in fee descend ex parte materna, and the equitable estate in fee, ex parte paterna, the equitable estate is merged in the legal, and both go in the line of descent of the legal estate. ib. 3. As, where A., having paid money for the purchase of land, died be- fore any conveyance was made, and B., afterwards, took a con- veyance 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 pur- chase ; 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. ih. DEVISE. 1. T., by his last will, after giving to his nephews, R., N., S., &:.c., each 1,000 pounds, as they came of age, devised two houses and lots, " with every right agreeable to the deeds of the same," to R., to be delivered to him as soon as he came to the age of 21 years^ 501 644 I'N D E X and if he died " before he came to age, a7ifl without male issue*," he dfivised the same to N., " to be delivered to him as soon as he comes to the age of 21 years." " The first possessor, (R ,) as soon as his first male child shall come to th» age of 21 years, it is iny 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 pounds, before left him, but his share to be equally dividec with the other legatees. R. ar- rived at the age of 21 years, but had no issue. It was held that, by the words " dying without male issue," R. 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 21 years, or having male issue, either event being sufficient for that ^purpose. Roosevelt and others v. Thurman, 220 2. That the clause, that the first taker was not to dispose of the estate before his eldest son came of age, did not engraft an execu- tory devise on the preceding fee, but was intended by the testator as a temporary restriction on the power of alienation, and being repugnant to the nature of the estate, was void. ib. DISCOVERY. I. If a bill seeks discovery in aid of the jurisdiction'of a Court of law, it must appear that such aid is clearly necessary, and the discov- ery material to the defence ; for where the facts depend on the testimony of witnesses, and the Court of law can compel their attendance, this Court will not interfere. Gelsion and Schenck ■ t. Iloyt 543 502 2. It seems that this Court will nu sustain a bill of discovery, and an injunction, merely to procure such admissions by the party aa might be used in mitigation of damages, in an action of trespass, at law, unless, perhaps, in very special cases. ib Vide Injunction; II. 7. 12. 14, 15 New trial, 4. Pleading, III. 14, 15, 16 DISTRIBUTION. Vide Alien. DIVORCE. 1. Pending a bill by a wife for a divorce, to which the defendant had demurred, and before a hear- ing on the demurrer, on the peti- tion of the plaintiff, setting f'jrth that she was abandoned by the defendant, and wholly destitute of all means of support, and for carrying on the suit, the Court, under the circumstances of the case, ordered an allowance of thirty dollars a month, to be paid by the defendant to the plaintiff, monthly, or to the register, for her use, until the further order of the Court. Mix V. Mix, 108 2. Where a wife had filed a bill for alimony, &c., against her hus- band, and it appeared that he had abandoned her, without any sup port, and threatened to leave the state, the Court, on the petition of the wife, granted a writ 6f ne exeat republica against the hus- band. Denton v; Denton, 364 3. Pending a bill for a divorce by a wife against her husband, and before answer, the Court will allow a monthly sum to the wif^ as .aUmony, and also a sum to be paid to her, by her husband, towards defraying the expenses of her suit. ib. 4. A divorce will not be decreed on the consent of parties. Williams- son V Williamson, 488 INDEX 645 5 On a bill by the wife against the husband, for a divorce from bed and board, on the ground of cruel usage, and foT 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 defend- ant should pay. 100 dollars a year, in half-yearly payments, one half to be applied to the maintenance of the plaintiff, and the other half to the maintenance, and edu- cation of the child, it appearing from the master's report, that the defendant was worth about 3,500 dollars, the annual income of which was about 100 dollars ; and the defendant was directed to pay the costs of the suit. Bedell v. Bedell, 604 6. Licentious conduct and misbe- havior of the wife, if existing before the alleged acts of cruel treatment by the husband, will destroy her ' claim for mainte- nance, ib. 7. The 12th section of the act con- cerning divorces, (sess. 36. c. 102. 2 R. L. 197.) relative to securi- ty 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. Pomeroy v. Pomeroy, 606 8. It seems, that the charges of adul- tery and cruel treatment cannot both be contained in the same bill. ih. fJivorce a vinculo matrimonii, vide Adultery. DOWER. 1. Where, on a bill of foreclosure, the widow of the mortgagoi' was made a party, and answered, and submitted to the decree of tht Court, she was held entitled tc the use of one third of the surplus proceeds of the sale of the mort- gaged premises, remaining in Court after satisfying the mortgage debt, as her equitable dower ; and to her costs, to be paid out of the other two thirds. Tahele v. To,- bele and others, 4.") 2. Widow of mortgagor is, at law, entitled to dower, subject to thi; mortgage. ib. DROWNED LANDS IN ORANGE COUNTY. The commissioners, under the act relative to draining the drowned lands in Orange county, (ses3. 30. c. 25.) had no right to use the lands of a party, or to remove or destroy his property, without a valid and legal contract with him for that purpose, or until compen- sation had been made and ten- dered to him according to the act. Phillips V. Thompson, 132 E. EQUITY OF REDEMPTION. Vide Mortgage, III. ESCROW. Vide Deed, II. 15, 16. ESTATE. Legal and equitable, vide Descent. Fee simple and tail, vide Devise, 1. EVIDENCE. I. Written evidence. II. Parol evidence to explain, vary or contradict written instru- ments. III. Parol evidence, witnesses, ana examination. I. Wtitte^i evidence. 1. A plaintiff cannot read his own answer to a bill of discovery in a 503 646 1 N D K X cross suit in evidence, unless the defendant chooses first to produce it. Phillips V. Thompson and others, 131 Testimony requisite to repsl denial in answer, vide post, III. 18, 19, 20. Conclusiveness of judgment or decree, vide Res Judicata. II Parol evidence to explain, vary, or contradict written instruments. 2. Where an assignment is, on the face of it, general, yet, if it be admitted to be different in its purpose, or for a specific security, parol evidence is admissible to show the real intent of the parties. Moses and others v. Murgatroyd and others, 119 3. Parol evidence is inadmissible to supply or contradict, enlarge or vary, the words of a will, or to ex- plain the intention of the testator, except there is a latent ambiguity, arising dehors the will, as to the person or subject meant to be de- scribed; or to rebut a resulting trust. Mann and others v. The Executors of Mann, 231 4. Declarations of the intention or understanding of a grantor, differ- ent from the intent apparent on the face of a deed, or of condi- tions annexed to it, to be effec- tual, must be made at the time of executing it. Souverhye and wife ' V. Arden and others, 240 5. 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. ib. I). So, a mistake in drawing a deed must be clearly proved. ib. 7. Where an agreement is reduced to writing, all previous negotia- tions, resting in parol, are extin- guished by the written contract, and cannot be resorted to to help 504 out or explai a ils meaning, Parhhurst and others v. Van Cortlandt, 273 8. 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, ib. 9. Parol evidence is inadmissible to support an agreement set up in contradiction to a deed. Mivan V. Hays, 339 10. Where no trust appears on the face of a deed, nor any manifesta- tion or evidence of it by writing, parol evidence is inadmissible to show the trust. ib 11. If a deed, after mentioning a spe- cific consideration, adds, " and for other considerations," it seems that parol evidence is admissible to show what were those other considerations. Benedict v. Lynch, 370 12. 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 i 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 and others v. Cooper and others, 425 13. The rule that parol evidence is inadmissible to contradict, oi substantially vary, the legal im- port of a written agreement, is the same in Courts of law and of equity. S. C. 429 14. Evidence that an agreement in writing, concerning lands, has been discharged by parol, is good as a defence tu a bill for a spe- cific performance, but is totally inadmissible at law or equity, as a ground to compel a performance m specie. ih INDEX. 64? 15. Parol evidence is admissible to show that an absolute deed was inten lovl as a mortgage, or that the defeasance had been destroyed by fraud or mistake. Marks and others v. Pell, 594 16. But where a bill was filed for an account and for a reconveyance, 30 years after the deed, alleged to be a mortgage, was given, during all which time the defendant had been in possession, parol evidence of the mere confessions of the defendant, made 17 years after . the deed, that it was taken as se- curity for a debt, was held insuffi- cient, ib. Resulting trust, vide Frauds, (Stat- ute OF,) 10, 11, 12. HI. Parol evidence, witnesses, and ex- amination. n Declarations of a person, not a paity in interest, nor a party to the suit, and who ■? a witness in the cause, are not competent evidence. Phillips v. Thompson and ethers, 131 18 Where the facts charged in a bill are fully denied by the answer, there can be no decree against the answer on the evidence of a single witness only, without cor- roborating circumstances to sup- ply the place of a second witness. Smith v. Brush and others, 459 19 And where publication had passed in a cause, without any witnesses being examined on either side, the Court refused, especially after the lapse of more than two years from the time of filing the bill, to open the rule for publication, on the affidavit of the plaintiff of the discovery of a witness who would prove a material fact in the cause denied in the answer. ib. isO. Nor would the Court, under the circumstances, award a feigned issue in the cause, that being a measure of sound discretion, ib. Vol. I. 64 21. After publication passed, and the cause set down for hearing, the deposition of a witness was allow- ed to be amended, on examination of the witness by the Court, he being aged and very deaf, and a mistake made in taking down his testimony by the examiner. Den- ton and ot/iers v. Jackson and others, 52(j 22. Where, on a cause coming on to a hearing, it appears that a wit- ness has misbehaved in his an- swers to the interrogatories, the depositions may be suppressed. Phillips V. Thompson, 140 23. Or, if a further answer to the in- terrogatories be deemed material, the Court may order a further ex- amination of the witness, on the interrogatories, before a master, or in open Court. if 24. Where, at the hearing of a cause, and after the argument had been finished in part, an objection was made to the competency of a wit- ness, whose deposition, taken be- fore an examiner, had been read, the Court allowed the plaintiff to prove the execution 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 purpose. Barrow and others v. Rhinelander 559 25. A witness may be examined, viva voce, at the hearing, for a particu- lar purpose, as to prove exhibits which had not been proved before the examiner. ib. 26. But the regular way is to serve a previous order for that purpose, or notice, on the opposite party, four days before the hearing, ib. 27. 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 5U5 648 N D E X. the examiner, there being no sug- gestion of any tampering with the witness. Trustees of Kingston v. Tappen, 368 Admissibility of confessions on a bill tor a divorce, vide Adultery, 1, 2. EXAMINATION. Vide Evidence, III. EXCEPTIONS. Costs on, vide Costs, II. 11, 12. To answer, vide Practice, III. To master's report, vide Practice, V. EXECUTION. I. Where an execution has been paid, the sale can be stopped by a judge's order ; and this Court will not interfere. Lansing v. Eddij, 50 2 The fourth section of the statute , of uses, (sess. 10. ch. 37. 1 R. L. 72.) rendering lands liable to execution against the cestuy que use or cestuy que trust, applies only to thosei fraudulent sind coyenous trusts, in which the cestuy que trust has the whole real beneficial interest in the land, and the trus- tee the mere naked and formal legal title. Bogart v. Perry and others, .52 3. Where a tract of land is divided into separate and distinct lots and parcels, it is the duty of the sher- iff who has an execution against • the land, to sell it in parcels, and not the whole tract together. Woods V. Monell and others, 502 •1. But, to set a sheriff's sale aside, there must be satisfactory evi- dence of fraud, or abuse of power in the sheriff. ib. 5. A sheriff ought not to sell more than is requisite to satisfy the execution ; and if he sell a whole tract, when a small part of it would be sufficient, or probably sufficient, for the purpose, it is a 506 fraud that ou^ht to set the sale aside. S. C. 505 Priority and lien of executions, vide Judgment, I. EXECUTOR AND ADMINISTRA- TOR. I. Assets. II. Administration and payment of debts and legacies. III. Actions by and against; and costs in such actions. I. Assets. 1. The administrator of a mortgagor is not, as such, entitled to the sur- plus money arising from the sale of the mortgaged premises ; but it is considered as part of the real estate, and ^oes to the heirs, and will be assets in their hands. Moses and others v. Mu^gatroyd and others, 119 2. And where the heirs were before the Court, by their parent, it was ordered to be distributed, as equi- table assets, among all the credit- ors, pari passu. ib. 3. But as the creditor has a remedy at law against an equity of re- demption, it is questionable wheth- er, before a sale of the mortgaged premises, it could be deemed equitable assets. ib. 4. Assets may be partly legal, and partly equitable, and the Court will discriminate in the distribu- tion of them ; following the rule of law, as to the legal assets, sg as to prevent confusion in the ad- ministration of the estate ; but directing the equitable assets to be applied ratably among all the creditors, without preference, ib 5. On a rehearing, the Court refused to alter the decree before given in the cause, except as to the payment of costs by the adminis- trator. S. C. 473 6 An! the Court refused to ordei the sosts of the administrator of INDEX. 649 the mortgagor, on the sale of prem- ises mortgaged in fee, to be paid out of the proceeds in this Court, ib. , Vide post, II. 11. II. Adminislration and payment of debts and legacies. 7. Payment of a legacy, or distribu- tive share, to the guardian, by nature, of an infant, is at the peri. of the executor or administrator, who may be compelled to pay the same over again. Otherwise, where the payment is to a guar- dian appointed by this Court, who has given the requisite security. Genet, guardian, Sfc. v. Tall- madge, administrator. 3 8. Courts, in this state, do not take notice of letters testamentary, or letters of administration, granted abroad, or out of the state. Mor- rell and others v. Dickey, . 153 9. Nor can a person appointed a guardian, to an infant, ia another state, be entitled to receive from the administrator, here, the lega- cy or portion of the infant. ib. 10. The guardian must be appointed here, and give competent secu- rity, to be approved of by this Court, before the payipent of the infant's money will be ordered, ib. 11. Where a testator directed his ex- ecutors to sell his real estate, to pay debts and legacies, in case of a deficiency of the personal es- tate ; and a bill filed by the exec- utors of a legatee and creditor, prayed a sale of the real estate, the executors of the testator having admitted that the personal estate was insuflicient ; the Court directed a master first to ascer- tain and report whether the exec- utors had duly administered all the assets, before recourse cculd be had to the land, or determin- ing whether the devisees in re- mainder were to be brought in. Arden's executors v. Arden's ex- ecutors, 313 Fide Trust and Trustee, II. 12. Ill 20, 21, 22, 23, 24, 25, 26. IV. 29, 30, 31. III. Actions by and against • and costs in such actions. 12. An ■ administrator, or trustee, who resists a claim, and litigates, bona fide, from a conviction of duty, and where no intentional default is made to appear, will not, under the ciicumstances t of the case, be charged, person- ally, with the costs ; but they must be paid out of the assets of the intestate Moses and others V. Murgatroyd, 473 13. The Court refused to order the ' costs of the administrator of the mortgagor, on the sale of prem- ises mortgaged in fee, to be paid out of the proceeds in this Court. ib. 14. Though the general rule is, thai executors must pay costs when they pay interest, because they are in default; yet, where the devisee, or cestuy que trust, de- mands more than he is entitled to receive, and the executor prop- erly submits to the direction of the Court, he will not be com- pelled to pay costs. Dunscomb and others v. Dunscomb' s executors, 508 15. Executors keeping part of a fund for commissions, and litigating in favor of their claim, were de- creed to pay costs. Manning and others v. Blanning's executors, 536 16. On a bill by a legatee agamst the administrator, where the defend- ant submitted to, and asked, the direction of the Court, his costs were ordered to be paid out of the fund. Morrcll and others v. Dickzy, lb3 Vide Debtor and Creditor, 5, 6. Ante, I. 6. Interest, 4. Flead< ING, I 1. 7, 8. 507 650 INDEX EXECUTORY DEVISE. Vide Devise, 2. F. FAILURE OF CONSIDERATION. Where A. conveyed land to B., by deed, with covenants of warrantyj and B. executed to A. a bond and a mortgage, to secure the payment of part of the purchase money, B. cannot be relieved against the mortgage, on the ground of a fail- ure of consideration, for want of title in A., possession having been taken by B., under the deed, and there being no eviction at law, under a paramount title ; and, more especially, in a case where, the bond and mortgage having been assigned to C, B., in con- sideration of forbearance, execut- ed a new bond and mortgage to C, for the same premises, will relief be denied against the as- signee for a valuable considera- tion, without notice of any fraud, or failure of consideration, in the creation of the original debt. Bumpus V. Plainer and others, 213 FEIGNED ISSUE. Vide Adultery, 2. Practice, VI. 22. FORECLOSURE. Vide Mortgage, III. FOREIGN LAWS. 1 Courts in this state do not take notice of letters testamentary, or letters of administration, granted aoroad, or out of the state. Mor- ■ ell and others v. Dickey, 153 2 Nor can a person, appointed a guardian to an infant in another slatp be entitled to receive from the administrator, here, the legacy or portion of the infant. ib. 508 I R AUD. 1. A deed by a client to his attornej and scrivener, for the considera- tion of aflection and friendship, 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 igno- rance and blind confidence on the one side, and uildue influence on the other, there being no evi- dence of imbecility or incapacity in the grantor, nor of fraud or irhposition by the grantee , nor of that relationship between the par- ties which might imply the exist- ence of an undue influence. WendeU v. Van Rensselaer, 344 2. Where a person, having a convey- ance of land, keeps it secret for several years, and knowingly suf- fers third persons, afterwards, to purchase parts of the same prem- ises 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 innocent and bonajide purchasers. ib 3. Equity grants relief not only against deeds, writings, and sol- emn assurances, but against judg- ments and decrees, obtained by fraud and impo-sition. Reigal v. Wood and others, , 402 4. Where an attorney revived, by scire facias, an old outstanding judgment, on which but a very small sum, if any thing, was due, and knowing that the land on which the judgment remained a lien was in the possession of inno- cent and bona Jide purchasers; and afterwards made use of the judgment to compel the purchas- ers, who were ignorant of the pro- ceedings under the scire facias, to pay and secure to him debt ha INDEX, 651 claimed against the person under whom they had purchased; this Court, on the ground of imposi- tion and undue advantage taken by the attorney, ordered him to refund the money he had so ob- tained, and set aside the securi- ties he had taken, with costs. Rdgal V. Wood and others, 402 5. Where a merchant, in embar- rassed circumstances, borrowed money, at different times, of his confidential clerk, who took vari- ous bonds and securities for such loans, and for which, by agree- ment, he was to be allowed a usu- rious interest ; and, during the period of ten years, the parties, from time to time, came to a set- tlement 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 evidence of mistake and omis- sions in the accounts, but of oppression, imposition, and un- due advantage taken of the necessities of the principal. Bar- row and others v. Rhinelander, 550 6. The master, in stating the account between the parties, was directed to allow rests therein, at such limes as the parties liquidated their accounts, and agreed that the interest, then due, should be considered as principal ; and that the clerk should be charged with the amount of all the securities, assigned 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, default, or want of due diligence in collecting them, with ioteiest, &*, Barrow and others v. Rhinelander, 65P Vide Costs, I. 9. Notice. FRAUDS, (STATUTE OF), I. Memorandum in writing, of a» agreement. JI. Part performance and exceptioiu in the statute. I. Memorandum in writing, of an agreement. 1. A contract made by an owner of land with the commissioners, under the act relative to draining the drowned lands in Orange county, (sess. 30. c. 25.) by which they were allowed to use each bank of the river Wallkill, &,c., which they might find necessary, in re- moving all obstructions, and in deepening and widening the river, &c., and to use, occupy, and en- joy the same, and for which they were to pay a compensation to the owner for the damages, and who agreed to allow them to cut a canal through his lands, is a contract concerning an interest in lands, within the purview of the statute of frauds. Phillips v. Thompson and others,^ 131 2. 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 es- sential terms of the contract, ex- pressed with such clearness and certainty, that they may be un- derstood from the writing itself, or some other paper to which it refers, without the necessity of resorting to parol proof Parh- hurst and others v. Van Cortlandt, 273 3. Where an agreement is reduced to writing, all previous negotia- tions, resting in parol, are extin- guished by the written contract, and cannot be resorted to to help out or explain its meaning. ih, 509 65a INDEX. £1. Part performance, and exceptions in the statute. 4. To entitle a party to take a case out of the statute, on the ground of part performance of the con- tract, he must make out, by clear and satisfactory proof, the ex- istence of the contract as laid in his bill. Phillips v. Thompson, 132 5. P. Parlchurst and others v. Van Cortlandt, 284 5. And the act of part performance must be of the identical contract set up by him. ib. 6. It is not enough that the act is evidence of some agreement, but it must be unequivocal and satis- factory evidence of the particular agreement charged in the bill. ib. l.A. contract cannot rest partly in writing, and partly in parol ; and where a part performance is set up to take a case out of the stat- ute, the party is not allowed to resort to parol evidence in aid of the written agreement. Parlc- hurst and others v. Van Cortlandt, 274 8, A part performance will not take a parol .agreement out of the stat- ute, unless the terms of the agreement distinctly appear, or are mads out to the satisfaction of the Court. ib. y. But where possession has been taken of land, and improvements made, under such imperfect agree- ment, though the Court will not grant relief, on the ground of part performance, yet the bill will bo retained for the purpose of afford- ing the party a reasonable com- pensation for beneficial and last- ing improvements. ib. 10. If A. purchase land with his own money, but the deed is taken in the name of B., a tiust results, by operation of law, to A. ; and the fact, whether tl e purchase was made with the n oney of A., 510 on which the lesulting trust is to arise, may be proved by parol, it not being within the statute of frauds. Boyd v. McLean, 582 11. And this parol evidence is admis- sible, not only against the face of the deed itself, but in opposition to the answer of the trustee, de- nying the trust ; and that, it seems, after the death of the nc raina! purchaser. ib, 12. Such evidence, howe\er, is to be received with great caution. ib. Vide Agreement, II. 5, 6. FRAUDULENT CONVEYANCES. 1. A voluntary conveyance, intended as a settlement for a child of the grantor, is void, as against a sub- sequent purchaser for a valuable consideration, with only implied notice of the previous deed, by the statute of frauds. Sterry and wife V. Arden and others, 261 2. But such deed may become, valid by matter ex post facto, as by some valuable consideration inter- vening, ib. 3. Marriage is such a valuable con- sideration ; and, therefore, if the grantee, in a voluntary deed, gains credit by the conveyance, and a person is induced to marry her, on account of the provisions made for her in the deed, such conveyance, on the marriage, ceases to be voluntary, and be- comes good against a subsequent bona fide purchaser for a valuable consideration. ib. 4. And it makes no difference whe- ttier any particular mairiage was in contemplation at the time of the voluntary settlement, or not. ib. 5. A voluntary conveyance is void as against a subsequent purchaser ^for a valuable consideration, with notice S. C 2Pa INDEX 653 6. Where a deed is sougk ; to be set aside, as voluntary and fraudu- lent against creditors, and there is BOt sufficient evidence of fraud to induce the Court to avoid it absolutely, but there are suspi- cious circumstances as to the ade- quacy of the consideration, and fairness of the transaction, the Court will not set aside the con- veyance altogether, but will per- mit it to stand as security for the sum actually paid. Boyd and Suydam v. Dunlap and others, 478 7 And where the plaintiff was a pur- chaser at a sheriff's sale, under a judgment, the Court gave the de- fendant his election to pay the amount of the judgment, interest, and costs, a!nd take a conveyance from the plaintiff; or, in default, to deliver up the deed to be can- ceiled, on receiving from the plaintiff the sura actually ad- vanced by the defendant. ib. 9 There is a difference between an interference actively to compel a party to reconvey or surrender a deed, and a refusal to aid a party who seeks a 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 remedy at law. S. C. 482 9. A Court of law can only decide on the validity of the deed, and cannot modify its relief accord- ing to the equity of the case. ib. (0 A deed, fraudulent in fact, is ab- solutely void, and is not permitted to stand as a security for any pur- pose of reimbursement or indem- nity ; but it is otherwise with a deed obtained under suspicious or unequitab e circumstances, or which is only constructively fraud- ulent. 'i>- G. GUARDIAN. 1. A father, who has been apDointed guardian to his infant children, by the Court, and has given com- petent security to the executor oi adminis'trator, under the act, (sess. 36. ch. 75. s. 18. 1 R. L. 314.) and approved security to account to his children, on their coming of age, is entitled to receive lega- cies and distributive shares belong- ing to them. Genet, guardian, &c, V. Tallmadge, administrator, 3 S. P. Genet and others v. Tallmadge and others, 561 2. But payment by an executor or administrator, to the father, as guardian by nature merely, is at the peril of the executor or ad- ministrator, who may, on the infant's attaining to full age, be compelled to pay the same over again. Genet v. Tallmadge, 3 Vide Morrell and others v. Dickey, 153 3. A guardian appointed by this Court, during minority, continues until the infant arrives at 21, 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 14, to change the guardian appointed by this Court. In the Matter of Nicoll, 25 4. A surrogate has power to appoint a guardian, but has no jurisdic- tion over him as a trustee. In the Matter of Andrews, 99 5. Chancery has the same superin- tendence and control over guar- dians by statute or testamentary guardians, as it has over guardians in socage. ib. 6. Every guardian, however appoint- ed, is responsible to this Court for his conduct, and may be removed for misbehavior. ib. 7. A guardian to an infant, appointed in another state, is not entitled t« 511 i'l INDEX receiv.»! iiotu the administrator, here, ti\^ IftgW/y t*' portion of the infant. Morrdl and others v. Dickey, 153 8. The guardian must be appointed here, and give competent securi- ty, to be approved of by this Court, before the payment of the infant's money will be ordered, ih. 9. Where one of the sureties, before given by the guardian, had be- come insolvent, the Court refused to order moneys belonging to' the infants, and which had been paid into Court by the adminis- trator, to be paid over to the guardian, until other and further security had been given by him. Genet and others Y. Tallmadge and others, 581 10. A guardian has no power or con-' trol over the real estate of his ward, further than concerns the rents and profits. ib. 11. Where certain commissioners, ap- pointed to make partition of the real estate of an inteistate, pursu- ant to an act of the legislature, sold parts of the estate, and paid the proceeds into this Court, pur- suant to an order for that pur- pose, and which had been in- vested in public stocks, by the as- sistant register, the Court refused, on the petition of theguardian, to order the money paid over, or the stocks transferred, to him. ib. 12 Where a bond given by a surety for the guardian 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 infant. Wiser v. Blachly, 607 H. HEARING. Vide Practice, VII. 27. 512 HUSBAND AND WIFE. Vide Baron and Feme. IGNORANCE OF LAW. Every man is to be charged with a knowledge of the law. ShotweU V. Murray 616 INDEPENDENT STATE. 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 governrpent has decided on the question, Courts of justice are bound to consider the ancient state of things as remaining un- changed. Gelston and Schcnck V. Hoyt, 543 IDIOTS AND LUNATICS. 1. The custody of a lunatic's person and estate, real and personal, may be committed to the next of kin, although heir at law. Matter of Livingston, 436 2. This Court, having the whole jurisdiction, in regard to idiots and lunatics, will direct the course of proceeding, on the traverse of the inquisition returned, in such a manner as may be most useful and expedient, so as best to inform its conscience, and afford the safest conclusion as to the exist- ence of the fact of lunacy. Mat- ter of Wendell, 600 3. The lunatic may be brought into Court, after the inquisition is fe- turned, and an inquiry be made, by inspection, or an issue may be awarded to ascertain, by a verdict at law, the existence or continu- ance of the lunacy. ib. 4. The most usual and proper course is, to have the issue made up and ' prepared for trial, under tha INDEX 655 direction of the Court, instead of delivering fivei the record and traverse, after the attorney-gene- ral has joined issue thereon, as practised in England, under the statute of 2 &. 3 Edw. VI., which has not been re-enacted or adopted here. ib. 5. At the time of directing the issue at law, the Court will, if necessa- ry, make a provisional order for the care of the lunatic's estate, until the question of lunacy is de- termined. Matter of Wendell, 600 IMPROVEMENTS. Vide Agreement, II. 6. Baron and Feme, 2. Frauds, (Statute of,) II. 9. Mortgage, IV. Trust AND Trustee, III. 14. 18. INFANT. Vide Guardian. Practice, II INJUNCTION, r. Injunction to stay waste or tres- pass. II. Injunction to stay proceedings at law. III. Injunction for other purposes. IV. Dissolving injunction. I. Iiyunction to stay waste or trespass. 1. An injunction to stay waste will be granted, though there is no suit pending, and though no ac- tion at law can be maintained against the tenant. Kane v. Vanderburgh and others, 1 1 2. An injunction is not allowed, in order to prevent the repetition of a trespass in entering and cutting down timber, on land of which the plaintiff is in possession as owner, and has adequate remedy at law for the trespass. Stevens v. Beekman and others, 318 3. Though, it seems, an injunction may be allowed in a case of tres- pass, under very special circum- stance5. ib- 4 Injunction lies to prevent a les- VoL. I. 65 see's making material alterations in a dwelling-house, by changing it into a ware-house, or store, which would produce permanent injury to the building. Douglass and others v. Wiggi7ts and an- other, 435 5. A mortgagor who has sold his equity of redemption, without taking any security as indemnity against his bond, cannot have an injunction to stay waste against his vendee, on the ground that he will be answerable for what the land may fail to satisfy the mort- gage. JBrumley v. Fanning Sf Devoe, 501 II. Irjunction to stay proceedings at law. 6. An injunction will not be granted to stay a sale under an execution, on the ground that the judgment has been fully paid and satisfied : for the party has a prompt -and adequate remedy at law. Lan- sing V. Eddy, 49 7. Nor will it be granted on the charge of usury, and the party seeks a discovery of the usury, and a return of the excess beyond the lawful interest ; for the usurj would have been a good defence at law ; and no reason was given why the defendant did not seek the discovery while the suit al law was pending. ib. 8. Chancery will not relieve against a judgment at law, unless the de- fendant was ignorant of the fact in question pending the suit, or it could not be received as a de- fence, ib. S. P. Simpson v. Hart, 98 9 Where a Court of common law, after a full consideration of all the circumstances of the case, refused to allow two judgment.^ to be set off, this Court refused to sustain a bill filed for an injunc- tion and a set-oiT. Simpson v. Hart, 91 513 656 INDEX IQ. An ttgunction will not be granted to stay proceedings at law, on a judgment, on the ground that the defendant at law was prevented, by public business, from making due preparations for, and attend- ing at the trial, and that the plain- tiff had, on the evidence of one witness, whom he had suborned to swear falsely, recovered a verdict for a much larger sum in damages than he was justly entitled to ; and that the Supreme Court had refused to grant a new trial in the cause. Smith 4* Mead v. howry, 320 11. The cases of relief in equity, against judgments at law, founded in fraud, are, when the fraud goes to the whole judgment, and not to the mere excess of damages in a case properly sounding in damages; and when the fraud ' could not . have been met and defeated at the trial. S. C. 323 12. On a bill for discovery on a charge of usury, an injunction will not be granted to stay proceedings at law on the note, or usurious con- tract, unless the plaintiiF tenders, or brings into Court, the money actually lent, and the lawful in- terest thereon. Rogers v. Ratli- bun, 367 S. P. Tupper and another v. Powell and others, 439 13. This Court will not grant an in- junction to stay an action at law on an award, on the ground that the plaintiff was surprised by the principal witness for the defend- ants swearing falsely before the arbitrators, and that he could have proved the falsehood of the testimony, 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 award. Woodworth v. Van Buskirk and Slocum, 432 14. Where a defendant, in an action 514 at law, has not used due diligence in making his defence, or in ap- plying to this Court for a discov- ery, to assist his defence at law, if necessary, he cannot, after a verdict against him, obtain the aid of this Court to stay the pro- ceedings at law, or to have a new trial. Barker v. Elkins and Simpson, 465 15. It seems, that this Court will not sustain a bill 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 cases. Oelston Sp Schenck V. Hoyt, 543 Vide Judgment, I. 5. Injunction to stay proceedings for the performance of an award, vide Award. III. Injunction for other purposes. 16. Injunction granted to stay pro- ceedings on power of sale in a mortgage, on payment of costs by plaintiff, and his paying into Court the amount reported to be due by a master. Hine v. Handy, 6 17. 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 pos- session, and when his legal title is not put in doubt. Croton Turnpike Company v. Ryder and others, 611 18. As, where a turnpike company, incorporated with the exclusive privilege of erecting toll-gates and receiving toll, had duly opened and established the road with gates, dtc. ; 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 travellers were enabled to avoid passing through INDEX 651 the gate and paying toll to the plaintiiTs; the Court granted a perpetual injunction to prevent the defendants from using, or allow- ing others to use, such road, and ordered the same to be shut up. Croton Turnpike Co. v. Ryder and others, 611 19. An act of the legislature for the incorporation of a bank, appointed certain commissioners, for the special and sole purpose of re- ceiving subscriptions, and they were directed "to apportion the excess of shares among the several subscribers, as they should judge discreet and proper." A bill was filed, charging inequality and par- tiality in making the apportion- ment, and an injunction granted : the commissioners, in their an- swer, denied the allegation of partiality, and the injunction was dissolved. Haight and others v. Day and others, 18 IV. Dissolving injunction. 20 If the answer denies all the equity of the bill, the injunction to stay proceedings, at law, will be dis- solved of course ; otherwise, it will be continued until the hear- ing ; and where it may be neces- sary to ascertain any matter of fact, for the information of the Court, it must be on an issue at law, awarded for that purpose. Hoffman v. Livingston, 211 21 Affidavits, ex parte, cannot be read in opposition to a motion made, on the coming in of the an- swer, to dissolve an injunction restraining one copartner from using the copartnership name, or doing any act relative to the part- nership concern, or in support of the allegations in the bill. East- burn and Downes v. Kirk, 444 INaUISITION OF LUNACY. fide lDif>TS AND Lunatics, Z, 3, 4, 5 INSOLVENT . 1. The assignees of an insolvent, who had obtained his discharge under the insolvent act, must be parties to a bill brought to enforce the execution of an agreement or trust, relative to his estate, existing prior to his assignment. Movan v. Hays, 339 2. A re-assignment to the insolvent, by his assignees, of all the residu- ary interest in his estate, made without the assent of the creditors of the insolvent, interested in the residuum, is void. ih. INSURANCE. Vide Vi.F.AmNQ, IV. 33. INTEREST. 1. Interest upon interest, or com- pound interest, is never allowed, unless in special cases; as where there is a settlement of the ac- counts 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, computing the amount of principal and interest, has been confirmed. The State of Connecticut v. Jack- son, 13 Vide Barrow and others v. Rhinelan- dcr, 550 2. An agreement made at the time of the original contract, to allow interest upon interest, as it should become due, is not to be sup- ported. TTie State of Connecticut V. Jackson, 14. 16 3. Rule for casting interest where partial payments are made. S. C. 17 4. Where an administrator employed the moneys belonging to his intes- tate's estate, in trade," for his own benefit, of the profits of which ha refused to give any account, the master, in stating an account, after allowing a reasonable time 515 65g INDEX for the settlement of the estate, charged compound interest, mak- ing annual rests in the accounts for that purposjB, which was con- firmed by the Court. Schieffelin V. Stewart and others, 620 JOINT OWNERS. Vide Commissions, 2. JUDGMENT. I. Priority and lien of judgments and executions. [I. Set-off of judgments. I. Priority and lien of judgments and executions. 1, A judgment, at law, is not a lien upon a mere equitable interest in land ; and the execution under it will not pass an interest which a Court of law cannot protect and enforce. Bogart . v. Perry and ,, others, 52 2. A., being seised of land, agreed to sell and convey the same to B., for a certain sum, part of which was to be paid down, and the residue in three annual instal- ments ; and A. was to execute a deed to B., on his paying the second instalment, and securing the residue by mortgage. B. paid the part down, and entered into . possession, but neglected to pay the instalments ; and, more than two years after they had become due, and payable, B. assigned the contract to S., who took posses- sion of the land, and made valua- ble improvements thereon ; and S., without performing the contract with A., assigned it, and all his interest, to P., with knowledge, however, of a judgment existing against S., before such assignment. It was held that the mere right in equity of S., as assignee of B., ; . against A., on the contract for the sale of the land, was not the 516 subject of lien, or jiidgment anu execution. ih. 3. A sale under a second, or junior judgment, is not, of itself, a waiver of the plaintiff's rights under a first or elder judgment. Shotwell V. Murray, 612 4. Where a person purchased under a junior judgment, with notice of the prior judgment, but supposing, erroneously, that the lien of the former judgment was thereby ex- tinguished ; it was held, that every person was bound to know the law; and that, where there was no mistake as to the fact, but only as to the legal consequence, and that on a collateral point, there could be no ground for re- lief, either by vacating a sale, or by a perpetual injunction against the exercise of the defendant's rights ; and that the purchaser took the land subject to the lien of the former judgment. Shotwell v. Murray, 512 5. A., having two judgments, of dif- ferent dates, against G., issued execution on the second, under which the land of the debtor was advertised for sale by the sheriff A. was present at the sale, and gave directions, but was entirely silent about the first judgment, and as to any intention, after- wards, to enforce it. B., having some claim to the land, in order to protect his title, became the purchaser at the sheriflPs sale, and received a deed, though he pre- viously knew of the existence of both judgments. B. filed a bill for a perpetual injunction against A.'s proceding under the first judgment, on the ground of mis- take, or fraud ; but the bill was dismissed, with costs. ib. Judgment relieved against in favor of purchasers, vide Fraud, 4. II. Set-off of judgments, 6. Judgments, not only in the sam* INDEX 650 Court, but in different Courts, may be set off against each other, at law ; and the power of Courts of law, in allowing such setoff, does not depend upon statute, but on'the general Jurisdiction of the Court over its suitors. Simpson V. Hart, 91 7. 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, re- fused to allow it, this Court re- fused to sustain a bill filed for an injunction and a set-off. Simpson V. Hart, 91 JURISDICTION. 1. It seems, that where a statute gives to certain persons a discre- tion in a particular case, and for a special purpose, a mistake of judgment, in that case, cannot be reviewed and corrected by the Court. Haight and others v. Day and others, 18 2. But their power may be controlled, if exercised in bad faith, and against conscience. S. C. 21 3. The jurisdiction of chancery, in awarding partition, is well estab- lished. Wilkin and others v. Wilkin, 117 4. The peculiar state of property, and the oppressive nature of the litigation at law, as to the title, af- ford a proper ground for the equita- ble jurisdiction of this Court. Nicoll V. Trustees of Huntington, 166 5. And the party may either come into equity, first to have his title tried at law under its superintend- ence, or he may have the title established at law before he comes to this Court; and where the title is once established to the sat- isfaction of the Court, either upon its own view of the testimony, or by verdict on one or'more issues, awarded at its discretion, it will declare in whom the right exists, by a decree, and protect thnt right by a perpetual injunction. (7). 6. But if the plaintiff, from his own case, does not show enough, or fails to make out a title by evi- dence, his bill will be dismissed without awarding an issue. ib. 7. This Court has power to order a bond or other instrument to be delivered up to be cancelled, 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 powei rests in the sound discretion of the Court, and is regulated by the circumstances of each particular case. Hamilton v. Cummings, 517 8. Where a bond is good on the face of it, but had been held by the defendant for 27 years, and he admitted that it was given on a trust which he ought not to dis- close, and depended on a contin- gency which had not happened, though it might by possibility happen, the Court ordered the bond to be delivered up and can- celled, ib. 9. So, where a bond conditioned to pay a certain sum, and good on the face of it, and on which a suit at law was pending, and the obligor had a good defence in equity, arising fi-om matter dehors the bond, it was ordered to be de- livered up. ib. 10. Where the intention is manifest, this Court will always relieve against mistakes in agreenients ; and that as well in the case of a surety, as in any other case. Wiser v. Blachly, 607 Jurisdiction in cases of adultery, vide Adultery, 3, 4, 5. Jurisdiction in aid of a Court of law. vide Discovery, 1, 2. Jurisdiction over guardians, vidt Guardian, 5, 6. 517 660 INDEX, Jurisdiction in relation to idiots and lunatics, vide Idiots and Lunatics. LACHES AND LENGTH OF TIME. 1. A bill, filed in 1809, for an ac- count as to transactions before, and at the commencement of, the American war, was dismissed on the ground of the staleness of the demand ; 26 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 knowl- edge of the original transactions. Ellison V. Moffatt and others, 46 2. In a suit between the representa- tives of a father, and the repre- sentatives of his son, where all the matters in controversy were refer- red to a master, the Court refiised to allow the exceptions made to the report ; the transactions being very stale and ancient, and most of them family dealings and con- cerns, and the parties, and their witnesses, having been fully ex- amined before the master. Ar- den's Executors v. Arden's Exec- utors, 313 3 Though the statute of limitations is no bar to a legacy, yet the Court, in regard to very stale demands, will adopt the provisions of the statute, in the exercise of their discretion. ih. 4. Though a lapse of 30 years affords a presumption that a legacy has been paid, yet that presumption may be repelled by circumstances. ib. ,a1 yse of time a bar to a divorce, vide Adultery, 8, 9. I pse of time a bar to an equity of redemption, vide Mortgage, III. , 14, 15, 16. Et vide Agreement, II. 9 518 LEGACY. 1 . Though the statute of limitationa is no bar to 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. Arden's Execu- tors V. Arden's Executors, 313 2. Though a lapse of 30 years af- fords a presumption that a legacy has been paid, yet that presump- tion may be repelled by circum- stances, ib. Vide Executor and Administrator II. 7. 9, 10. LIEN. Vide Judgment, I. Vendor and Purchaser, 1, 2, 3. LIS PENDENS. Vide Vendor and Purchaser, 4, 5, 6, 7. Notice, 6, 7, 8, 9. LOAN. Vide Debtor and Creditor, 1 , 2, 3, 4. LUNATICS. Vide Idiots and Lunatics. M. MARRIAGE. Though an absence of five years, of one of the married parties, may exempt the other, who marries again, fi'om the penal conse- quences of bigamy, under the provisions of the act, (1 N. R. L. 113.) yet the second marriage is null and void ; for nothing but tlie death of one of the parties, or the judicial decree of a com- petent Court, can dissolve the marriage tie. Williamson v. Pari- sien, 389 MARRIAGE SETTLEMENT. Vid^ Baron and Feme. 1 N D t- A. 6(51 MERGER. Vide Descent. MONEY. Uoney means gold or 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 does not comprehend promissory notes, bonds and mortgages, or other securities. Mann and others v. The Executors of Ma^n, 231 MORTGAGE. I. Of the mortgage generally. II. Registry of mortgages. III. Equity of redemption, foreclosure, and sale. IV. Account between mortgagor and mortgagee. I. Of the mortgage generally. 1. Expenses of security are to be paid by mortgagor. liine v. Handy, 7 2. Parol evidence is admissible to show that an absolute deed was in- tended as a mortgage, or that the defeasance had been destroyed by fraud or mistake. Marks and others v. Pell, 594 3. But where a bill was filed for an account, and for a reconveyance, 30 years after the deed, alleged to be a mortgage, was given, during all which time the defend- ant had been in possession, parol evidence of the mere confessions of the defendant, made 17 years after the deed, that it was taken as security for a debt, was held insufficient. ih. Vide Evidence, II. 12. II. Registry of mortgages. i. The registry of a mortgage is notice to subsequent purchasers. Frost and others v. BeeJcman, 298 S. P. Parkiit /. Alexander and others, 394 5. The registry of a mortgage is notice only to the extent of the sum specified in the registry. Frost and others v. Reekman, 299 6. So, the registry of a mortgage given to secure three thousand dollars, but, by the mistake of the clerk, registered for three hundred dollars, is notice to subsequent bona fide purchasers, to the ex- tent only of the sum expressed in the registry. ih. 7. An unauthorized registry of a mortgage, or one registered with- out any previous proof or ac- knowledgment, would not, it seems, be notice to a subsequent purchaser. S. O. 300 8. The mortgagee i.s not bound to inspect the record, and see that the registry is correct : this is the exclusive business and duty of the clerk. Frost and others v. Reek- man, 300 9. Equity gives no assistance against a purchaser for a valuable consid- eration without notice. ib. 10. But whenever actual'notice of the true sum in the mortgage can be brought home to the purchaser, he is, from that time, so far as the former purchase is left incom- plete, either as to the deed, on the one hand, or as to payments, on the other, bound ■ by the prior equitable lien : and all subsequent payments by him are made in his own wrong, so far as the rights of the mortgagee are con- cerned. S. C. 301 11. Notice of an encumbrance stops all further proceedings towards the completion of the purchase, or payment of the money. ib. 12. It seems, that the registry of a mere equitable mortgage, or en- cumbrance, is notice to the subse- quent purchaser of the legal es- tate, so- as to entitle such- mort- 519 662 INDEX. gage to a preference Parhsi V. Alexander and others, 394 III Equity of redemption, foreclosure, and sqle, 13. Injunction granted to stay pro- ceedings on power of sale, on pay- ment of costs by the plaintiff, and his paying into Court the amount reported to be due by a master. Hine v. Handy, 6 14. Possession by the mortgagee, for a period short of twenty years, will not bar the equity of redemp- tion ; the possession must be an actual, quiet, and uninterrupted possession, for 20 years, or a period sufficient to toll the right of entry at law. Moore v. Cable, 385 15. No length of time is a bar to a redemption of a mortgage, where there is fraud in the transaction, or where, by the agreement of the parties at the time, the mort- gagee is to enter and keep pos- session until he is paid out of the profits. Maries and others v^Pell, 594 16 Where a mortgage is given to se- cure a sum, payable in instal- ments, with interest, and, on de- fault in payment of the first in- stalment, a bill is filed by the mortgagee, the defendant will not be allowed to stay proceedings, on bringing into Court the princi- pal and interest due, with the costs which had accrued, unless he also put in an answer, confess- ing the debt, &c. or consent to a decree of foreclosure, to remain subject to the further order of the Court upon a subsequent default. Lansing v. Capron and others, 617 17 And it seems that, in such case, if the subsequent instalments are punctually pajd, the defendant will not be charged with the further losts. ih. i8. Sale of mortgaged premises, un- der a decree, will not be postpon- ed merely on account of the ex- 520 istence of war ; war, as a jjener-. calamity, not being sufficient lu justify the Court in interrupting the regular administration of ju.'-- tice, and the collection of debts. Astor V. Romayne andotliers, 310 19. But if it should be made satisfac- torily to appear, that there was any immediate or impending calamity over the city, or place, where the mortgaged premises were situated, which would cause a suspension of all civil business, the Court would interfere, and postpone ths sale. ih. 20. A sale of mortgaged premises was postponed for six weeks, to give the mortgagor an opportunity to comply with the proposal of the mortgagee, such delay being equally beneficial to both parties ib Contribution between co-debtors, mort- gagors, &c., vide Contribution Dower of widow of mortgagor, vide Dower, 1,2. Surplus remaining after sale, vide EXECUTOE 4.ND ADMINISTRATOR, I. Vide Injunction, I. 5. IV. Account between mortgagor and mortgagee. 21. A mortgagee, or assignee of a mortgagee in possession, is not to be allowed for his improvements in clearing wild land, but only for necessary reparations, &c. ; and must account for the rents and profits received by him, ex- cept such as have arisen, exclusive- ly, from his own improvements. Moore v. Cable, 385 Vide Injunction, I. 5. N. NE EXEAT REPUBLICA 1. A writ of Me exeat republiea can- not be granted for a debt due and INDEX 663 recoverable at law. It is applied only to equitable demands. Sey- mour V. Hazard, 1 2. And it must not only be an equi- table demand, but one in the na- ture of a debt actually due. ih. 3. Where a wife had filed a bill for alimony, &c. against her hus- band, and it appeared that he had abandoned her without any sup- port, and threatened to leave the state, the Court, on the petition of the wife, granted a writ of ne exeat republica against the hus- band. Denton v. Denton, 364 4. On application for a writ of ne exeat republica, by a wife against her husband, pending a suit for alimonyj &c., her affidavit is ad- missible, the proceeding being ex parte, and the wife, in that re- spect, considered as independent of her husband. S. C. 441 5. A writ of ne exeat may be grant- ed prior to any decree for alimony. ib. 6. And the Court, in making the writ, will exercise a sound discre- tion, under the special circum- stances of the case, having due regard to the rank of the parties and property of the husband, so as to prevent oppression or extor- tion, ib. NEW TRIAL. 1. Where a Court of law has refused a new trial, the party will not be relieved in equity, at least, upon the same merits already discussed, and fully within the discretion of a Court of law. Simpson v. Hart, 97 2. A new trial will not be granted, merely to give a party, who has gone voluntarily to trial, an oppor- tunity to impeach the testimony of witnesses, of the object of whose evidence he was apprized beforehand. Woodworth v. Van BusJcirk and Slocum, 432 3. He must, at least, .show, that he Vol. I. 66 had since discovered testimony of which he had no knowledge be- fore the trial. ib. 4. Where a defendant, in an action at law, has not used due diligence in making his defence, or in ap- plying to this Court for a discov- ery, to assist his defence at law, if necessary, he cannot, after a verdict against him, obtain tl e aid of this Court to have a nev • trial. Barker Y. EUdni and Simp- son, 465 Vide Injunction, II. 8. 10, 11, 12. It NICOLL'S PATENT. Vide Patent. NON-RESIDENT PLAINTIFF Vide Costs, III. 13. NOTICE. 1 . A purchaser, without notice from one who has fraudulently pur- chased, is not affected by the fraud. Bumpus v. Platjier and others, 213 2. And a purchaser, with notice to himself, from one who purchased without notice of the fraud, may protect himself under the first purchaser. ib. 3. Equity gives no assistance against a purchaser for a valuable con- sideration without notice. Frost and others v. Beekman, 300 4. Notice of an encumbrance stops all further proceedings towards the completion of the purchase, or payment of the money. S. C. 301 5. A party claiming relief in equity, as a bona fide purchaser, must positively and precisely deny all notice, though it is not charged. S. C. 302 S. P. Murray ^ Winter v. Ballou Sf Hunt, 566 6. A lis pendens, duly prosecuted, is notice to a purchaser, so as to af- fect and bind his interest by tha 521 INDEX decree ; and the pendency of the suit is deemed to commence from the service of the subpoena, after the bill is filed. Murray Sp Win- ter V. Ballou 4" Hunt, 566 7. A purchaser of A., a trustee, is not chargeable with notice of the trust, by means of the registry of I a deed from H. to B., reciting that A. had executed a declaration of the trust. ih. 8. If a purchaser has notice of Jhe trust, at the time of purchase, he himself becomes a trustee, not- withstanding the consideration he has paid. ih. 9. A purchaser of land chargeable with constructive notice only, by means of a lis pendens, is not to be charged with costs, there being no actual fraud, though the pur- chase is set aside on the ground of the implied fraud. ib. iO. Whether a latent equity in a third person will defeat a bona fide as- signee, without notice of his rights, except it be an assignment by an executor, which carries on the face of it notice of his fiducia- ry character? Qumre.. ih. Vide Failure of Consideration. Fraudulent Conveyances, 1. 5. Mortgage, II. PARENT. Vide Guardian, 1, 2. PARTITION. This Court will not sustain a bill for a partition, where the title is de- nied, or is not clearly established ; but the bill will be retained to give the plaintiff an opportunity to establish his title at law. Wil- kin and otliers ii . Wilkin, 111 PARTNERSHIP. I. Where articles of copartnership 522 stipulated, that the i apttal and •profits of the company should re- main in the house, and be em- ployed, during the copartnership, for the benefit of the concern, each party being at liberty to withdraw from the joint funds so much oply 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 fur- niture, carriages, horses, &c., but only for family expenses, and the reasonable education of children, &c. Stoughton V. Lynch, 467 2. And where the partner lived in his own house, a charge for house- rent was disallowed. ih. 3. If one partner withdraws or uses the partnership funds, in his own private trade, or speculations, he must account, not only for the interest on the moneys so with- drawn, but for the profits of that trade. ib. 4. Joint owners, or partners, are not entitled to charge each other for services rendered in the care and management of the joint property, unless there is a special agreement for ■ that purpose. Franklin and others V. Robinson, 15S 5. Where A. and B. carried on trade, as partners, with the funds of A., in the name of B., and without any dissolution of the partnership, or rendering any account to A., B., afterwards, without the consent of A., entered into a partnership vvith C., and carried into the new concern all the funds of the former partnership ; and A., on the death of B., filed a bill against his ad- ministratrix, and C, his surviving partner, for a discovery and ac- count; it was held, that he was entitled to an account from C. of the transactions and profits of the partnership between him and the intestate, and of the personal estate of the intestate in his INDEX 66i hands, Long v. Majestre and Tar- dy, 305 Vide Injunction, IV. 21. Practice, IV. 17. PATENT. The patent to William Nicoll, of the 4th of June, 1688, of certain islands on the south side oi Long Island, does not extend to Cap- tree Island, Oak Island, and Crrass Island. Nicoll v. Trus- tees of Huntington. 166 PENDENCY OF SUIT. Vide Notice, 6. 9 PERFORMANCE. Vide Agreement, II. PETITION. Petition of appeal, vide Appeal. Petition to set aside decree, vide De- cree, 4. PLEADING. I. Parties. II. Bill III. Answer. IV. Demurrer. I. Parties. 1. A creditor, filing a bill against an executor, cannot make a debtor of the estate a party, except where the executor is insolvent, or there is collusion between the executor and debtor, or in some other special case. Long v. Majestre and Tardy, 305 2. The assignees of an insolvent, who had obtained 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, exist- ing prior to his assignment. Movan v. Hays, 339 3. The general rule requiring all persons interested to be made parties to the sun, is confined to parties to the interest involved in the issue, and who must, neces- sarily, be affected by the decree. Wendell v. Van Rensselaer, 349 4. It is a rule of convenience mere- ly, and may be dispensed with when it becomes extremely diffi- cult or inconvenient. ih. 5. P. Wiser v. Blachly and others, 437 5. Individual members of a corpo- ration may be called upon to answer to a bill of discovery under oath ; but, in that case, the indi- viduals must be named as defend- ants in the bill. Brumly v. Westchester Manufacturing So- ciety, . 366 6. Where a bill was filed against a corporation generally, who put in an answer under their corporate seal, the Court refused, on motion, to order certain officers of the corporation to make oath to the answer so filed. ih. 7. A creditor, or legatee, of the per- sonal estate, need only make the personal representatives of 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 will be dispensed with. Wiser v. Blachly and others, 437 8. But, on a bill against the execu- tors of a guardian, for a breach of his trust, the testator having, by his will, made the timber on his land assets for the payment of his debts ; it was held that the devisee of the real estate ought to be made a party, as the whole estate might become responsible to the plaintiff. ih 9. The parties can . only be known in the character in which they appear before the Court; there- fore, if a bill of revivor states t'he plaintiffs to be the heirs and devi- sees of the party deceased, though 523 666 INDEX. some of them, in fact, are execu- tors, yet they can only be known ill their former character, and not as executors. Travis and others V. Waters, 85 II. Bill 10. The general interrogatory, or requisition, in the bill, " that the defendant may full answer make, to all and singular the premises, fully and particularly, as though the same were repeated, and he specially interrogated, paragraph by paragraph, with sums, dates, and all attending circumstances and incidental transactions," is sufficient to entitle the plaintiff to a full disclosure of the whole sub- ject matter of the bill, equally as if he had specially interrogated the defendant to every fact stated in the bill. Methodist Episcopal Church and others v. Jaques and oilier s, • . 65 11. If a bill, beside the usual prayer for general relief, contain a prayer for specific relief, the plaintiff is entitled to' other specific relief, so far as it is consistent with the case stated in the bill. Wilkin and oiaers V. Wilkin, 111 li. The substance of a bill must con- tain ground for relief; and there must be equity in the case, when fully stated, and correctly applied to the proper parties, sufficient to warrant a decree. Lyon v. Tall- madge, 188 13. It seems, that a cross bill must be filed before publication is passed in the first cause. Sterry v. Ar- . den and others, 62 Amending bill, vide Amendment. III. Answer. 4. If a defendant submits to answer a bill of discovery, &c., he must answer fully, except in certain cases, as where the discovery 524 may tend to crirainite him, or where he is a purchaser for a valuable consideration. Method- ist Episcopal Church and .thers V. Jaques and others, 65 15. If the defendant rests himself on a fact, as an objection to a further discovery, it ought to be such %. fact as, if true, would, at once, be a clear, decided, and inevitable bar to the plaintiff's demand. ib. 16. A defendant is bound, in his an- swer, to admit, or deny, all the facts stated in the bill, with all their material circumstances,, with- out any special interrogatories in the bi|l for that purpose. ib. 17. The defendant must answer, spe- cifically, to the specific charges . in the bill, and give the best ac- count he can, so as to enable the , plaintiff, if he calls for an account, to possess materials to state an account. S. C. 76 18. Exceptions to an answer for im- pertinence, as well as insuffi- ciency, are made in writing, and referred, at the same time, to the master, and are disposed of to- gether. (This is different from the practice of the Court of Chan- cery in England.) Woods v. Morrell and others, 103 19. The best rule to ascertain whether ' matter be impertinent, is to see whether the subject of the alle- gation could be put in issue ; or be given in evidence between the parties. ih. 20. Ari answer ought not to go out of the bill, to state what is not ma- terial or relevant to the case stated in the bill. ib. 21 . Long recitals, stories, conversa- tions, and insinuations tending to scandal, are impertinent. ih 22. So, facts not material to the de- cision are impertinent, and, if re- proachful, are scandalous. . ib. 23. But if the plaintiff will put impep- tinent questions, he must take INDEX 66> impertinent answers, [t will de- pend, 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 details. ih. 24. The defendant must answer di- rectly and precisely to every ma- terial allegation in the bill, and not by way of a negati 'e pregnant. The charges are not to be an- swered literally ; but the defend- ant must confess or traverse the substance of each charge positive- ly, and with certainty. ib. 25. Particular and precise charges must be answered particularly and precisely, and not generally, though the general answer may amount to a full denial. ib. 26. If a fact is charged to be within the defendant's personal knowl- edge, he must answer positively, and not to his remembrance or belief: and as to facts not within his own knowledge, he must answer as to his information and belief; not as to his information or hearsay, without stating his belief one way or the other. ib. 27. A party claiming relief in equity, as a bona fide purchaser, must positively and precisely deny all notice, though it be not charged. Frost and others v. Beekman, 288 S. P. Murray Sf Winter v. Ballon Sf ' Hunt, 566 28. Whatever is essential to the right of the party, and is necessarily within his knowledge, must be positively and precisely alleged. Frost and others v. Beekman, 302 29. If a. feme covert, who is a defend- ant, puts in an answer separately from her husband, without leave, the Court, on motion, will quash it. Ferine v. Swaine, 24 Vide Injunction, IV. 20. Exceptions to answer, vide PRACTitjs, III. IV. Demurrer. 30. A demurrer to a bill m equity must be founded upon some dry point of law, which goes to the absolute denial of the relief sought. Verplanck and others v. Caines and wife, ' 57 31 . If the demurrer is bad in part, it is bad in toto. ib. 32. The appointing a receiver tests in the sound discretion of the Court; and it forms no ground for a demurrer to a bill praying for the appointment. ib. 33. A bill filed to recover the amount of a total loss on a policy of in- surance, stating no other ground of equitable relief, than that the policy had been assigned to the plaintiffs by the insured, in whose names it had been effected, and that the insurers refused to pay, was, on demurrer, dismissed with costs, the plaintiffs having ade- quate remedy at law. Carter and Moore v. United Insurance Company, 46!$ POLYGAMY. Vide Marriage. POWER OF SALE IN MORT- GAGE. Vide Mortgage, III. 13. PRACTICE. I. Bill taken pro confesso. II. Appearance. III. Exceptions to answer. IV. Motions. V. Reference to master, report, exceptions. VI Taking testimony, feigned issue, and other intermediate proceedings. VII. Hearing and rehearing. I. Bill taken pro confesso. 1. If a defendant, after an appear- ance, will not answer, the bill will be taken pro confesso. Caines v, Fisher and MLachlan, 8 523 668 INDEX 2. Where the bill is for relief only, and states sufficient ground, it is not necessary to prosecute a party to a contempt and sequestration,be- fore taking the bill pro confesso. ih. 3. Otherwise, where an answer is essential, as in bills of discovery ; there, it must be compelled by , process for contempt. ih. 4 If, after appearance,"no answer is put in, according to the rules of the Court, the defendant will be ordered to file his answer by the first day of the next term, or that, on proof of service of the order, the bill will be taken pro confesso. ih. 5 A defendant, who has suffered the bill to be taken pro confesso, and a decree, by default, to be entered against him, may, under the special circumstances of the case, be let into a defence, on terms ; it resting in the sound discretion of the Court to relieve the party, or not, from the conse- quences of his default. Wooster and others v. Woodhull, ' 539 0. But where there had been gross negligence on the part of the de- fendant, and the principal and most material witness of the plain- tiff had died since the bill was filed, the Court refused to relieve the defendant, as opening the de- cree would produce irremediable injury to the plaintiff. ih. 7. A decree fairly and regularly ob- tained,, by default, for want of answer, will not be set aside to let in a defence founded on a fraudulent speculation. Parlcer and Bliss y. Grant and others, 630 8 The application, in such a case, is to the grace and favor of the Court; and the defendant must show that he is desf rving of favor. ih. II. Appearance 9. Infants cannot, by their solicitor or counsel, petition the.Court to 526 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 friend. Bradwell v. WeeJcs, 325 Vide ante, I. Ill Exceptions to answer, 10. Exceptions to an answer for im- pertinence, as well as insufficiency, are made in writing, and referred, at the same time, to the master, and are disposed of together. (This is different from the prac- tice of the Court of Chancery in England.) Woods v. 3Iorrcll and others, 103 11. If exceptions are taken to an an- swer, and the defendant submits to the exceptions by putting in a fur- ther answer, the plaintiff, if he thinks the second answer not suffi- cient, should, within a reasonable time, say three weeJcs, obtain an order to refer the answer to the master for insufficiency. Sanford V. Bissel and others, 383 12. And the plaintiff ought, either in the order of reference, or by no- tice to the defendant, to .specify to which of the exceptions the second answer is still imperfect, ib. 13. Where exceptions to an answer were taken in November, and the defendant put m a second answer in December, and the plaintiff, in March following, ^btained a rule of reference to the master, with- out any notice to the defendant, the plaintiff was deemed to havt; acquiesced in the second answer, and the order of reference was set aside. ib 14. And though the second answei was not accompanied with an offer to pay the costs of the ex- ceptions, which the defendant, in such case, is regularly bound to pay ; yet, as the plaintiff wade nd INDEX, G69 objection on that ground, nor called on the defendant for the costs, he was precluded from mak- ing that objection afterwards, ib. IV. Motions. 15 Where a motion, on some inter- locutory matter in a cause, has been once heard and decided on, it cannot be repeated unless on a new ground. Hoffman v. Jbiv- ingston, 211 16. It is not enough that additional evidence is offered by the affida- vits of the matter urged in support of the former motion; nor can affidavits be received on such motion to aid the answer of the defendant. ib. 17. Affidavits, ex parte, cannot be read in opposition 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 part- nership concern, or in support of the allegations in the bill. East- burn S^ Downes v. Kirk, 444 18. The admission o{ ex parte affida- vits is an exception to the general rule, and is allowable only in waste, or in cases where irrepara- ble mischief might ensue. ib. IH. A regular decree on the merits cannot be set aside on motion. Radhy ami others v. Shaver and „thcr.i, 200 V. Rfference to master, report, excep- tions. '20. In a suit between the representa- tives of a father, and the repre- sentatives of 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 trans- actions being very stale and an- cient, and most of them family dealings and concerns, and the parties, and their witnesses, hav- ing been fully examined before the master. Arden's Executors v. Arden's Executors, 313 VI. Taking te.itimonr/, feigned issue, and other intermediate proceedings. 21. Where publication had passed in a cau.se, without any witnesses being examined on either side, the Court refused, especially after the lapse of more than two years from the time of filing the bill, to open the rule for publication, on the affidavit of the plaintiff of the discovery of a witness who would prove a material fact in the cause, denied in the answer. Smith v. Brush and others, 459 22. Nor would the Court, under the circumstances, award a feigned issue in the cause, that being ? measure of sound discretion, ib 23. Liberty to re-examine witnesses rests in discretion, and is to be governed by circumstances. Boyd andSuydam v. Dunlap andothers, 483 24. It is not of course to enlarge the rule to pass publication, and it will be refused where there has been great delay ; but it was granted until the plaintiffs had suf- ficiently answered a cross bill of the defendants. Underhill v. Van Cortlandt and others, 500 25. 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 il the cause had been set down on bill and answer. Wiser v. Blach- ly, 607 Examination of witnesses, vide Evi DENCE, III. Vide Injunction, IV. 20. VII. Hearing and rehearing. 26. A rehearing rests in the discretion 527 670 INDEX of the Court, and is not granted on a decree for costs only, unless under special circumstances. Travis and others \. Waters, 4S 27. In two causes against the same defendant, depending on the same facts, the plaintiffs were respec- tively witnesses for each other ; and ailer publication had passed, and the causes had been set down for a hearing, the defendant filed cross bills for discovery, on the ground that the witnesses had not fully and satisfactorily answered one of the cross interrogatories. A motion made to put off the hearing of the causes, until an- swers were put in to the cross bills was refused, it being too late for such an application, and the answers not appearing to. be eva- sive. Starry v. Ardea and others, 62 28. On a rehearing, the party that complains of a decree, and seeks to have it corrected, is entitled to open and close the argument. Sills V. Brown and others, 444 Examination of witness, at the hearing, mrfe Evidence, III. 21 . 23, 24, 2.5. 26. Setting down for hearmg, ante, VI. 2.'> PRESUMPTION. Vide Laches and Length op Time. PRINCIPAL AND AGENT. Vide Agent. PRO CONFESSO. Vide Practice, I. PUBLICATION. Vide Practice, VI. 21. 24- Q. QUANTUM DAMNIFICATUS. Vide Agreement, II. 5. QUANTUM MERUIT. Vide Commissions, 1. 528 R. RECEIVER. 1. The appointing a receiver re.«it3 in the sound discretion of the Court, and forms no ground for a demurrer to a bill praying for the appointment. Verplank and others v. Caines and wife, 57 2. Where a trustee was restrained, by injunction, from interfering with the trust estate, and a re- ceiver appointed by the Court, and it became necessary to bring suits at law, to recover the pos- session of lands, and collect moneys belonging to the trust estate ; the Court, on application of the cestuy que trust, ordered the receiver to bring the suits in the name of the trustee, on giving security to indemnify the trustee on account of such suits ; and that the receiver should hold the possession of the lands recovered, and moneys received by him, sub- ject to the further order of the Court. Green and others v. Win- ter, 60 REFERENCE TO MASTER. Vide Practice, V. REGISTRY. Vide Mortgage, II. REPORT. \^de Practice, V. REPUGNANCY. Vide Devise, 2. RESTRICTION OF ALIEN- ATION. Vide Devise, 2 RESTS. Vide Interest, 4. RES JUDICATA. I. A decision of a Court of compe- tent jurisdiction, be.ing res judi- cata, is conclusive and binding I N D E X •jn on all other Courts of concurrent jurisdiction. Simpson v. Hart, 91 2, A decree of a Court of competent jurisdiction, on the point at issue before it, can only be reviewed in the regular course of appeal. Gelston and Schenck v. Hoyt, 543 3. The decree of a Court of peculiar and exclusiye jurisdiction is con- clusive on all other Courts. ib. 1. As, where a vessel was seized, and libelled in the District Court of the United States, as forfeited, for being fitted out in violation of an act of congress, to be employed in the service of a foreign state, to wit, that part of the island of St. Domingo, under the government of JPetion, 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 re- stored to the claimant, and refused a certificate of probable cause of seizure ; this decree was held con- clusive as to the lawfulness of the •seizure. ib. RESULTING TRUST. Vidt Frauds, (Statute of,) II. 10, 11, 12. ' RETAXATION. Vide Costs, II. 10. S. SALE OF MORTGAGED PREM- ISES. Vide Mortga&e, III. SECURITY. Vide Mortgage. SECURITY FOR COSTS. Vide Costs, III. SETTLEMENT. 1. Where a woman, before her mar- VoL. T. 67 riage, executed a deed, to which her intended husband was a.party, by which she conveyed all her estate, real and personal, to C, in trust, to her use, until her marriage, and then to such per- sons and uses as she, with, the consent of her intended husbind, should appoint, by deed, oi by her last will, without his consent, and the wife retained the deed during life, and executed a deed to her husband's brother, and, also, made a will, disposing of her estate, &c. ; it seems that this deed, though it might not be le- gally valid, on account of some technical objection to its due de livery, would be good evidencf. of the agreement, and binding or; the husband. Methodist Episco- pal Church and others v. Jaques and others, . 65 2. A voluntary settlement, fairly made, is always binding, inequity, upon the grantor, unless there be clear and decisive proof that he never parted, nor intended to part, with the possession of the deed ; and, if he retain it, there must be other circumstances, beside the mere fact of his retain- ing it, to show that it was not in- tended to be absolute. Souverbye and wife v. Arden and others, 240 3. A voluntary settlement, without power of revocation, cannot be revoked. S. C. 258 4. A voluntary conveyance or settle- ment, though retained by the grantor in his possession, until his death, is good. Sunn and (fthers V. Winthrop and others, 329 5. As between the parties, a volun- tary actual transfer, by deed, of a chattel interest, is valid, without any consideration appearing, ib. Vide FitAUDULENT Conveyances, 1, 2, 3, 4, 5. Marriage settlement, vide Baron and Feme. Deed, II. 18. 529 ff72 INDEX SET-OFF OF JUDGMENTS. Vide Injunction, II. 9. Judgment, II. SHERIFF. Vide Execution, 3, 4, 5. SOLICITOR. 1. This Court does not ordinarily, and of course, interfere to compel the payment of solicitors' fees. In the Matter of Southmck, 22 2. Where a commission of lunacy had been executed, and the luna- tic, afterwards, discharged from it J but, on the disease returning, a new committee was appointed, under a new commission ; the Court refused, on the petition of the solicitors who sued out and executed the first commission, to order the first committee to pay their costs ; there being no special reasons for the summary inter- ference of the Court. ib. SPECIFIC PERFORMANCE. Vide Agreement, II. STALE DEMAND. FirfeLACHES and Length op Time. STATUTES CONSTRUED, EX- PLAINED, OR CITED. 1787, Feb. 20. Sess. 10. c. 37. (Use. Execution against cestui/ que use,) 56 , 26. Sess. 10. c. 44. (Frauds. Fraudulent Convey- ances,) 143. 267. 342. 586 1788, Feb. 7. Sess. 11. c. 24. (Po- lygamy,) . 389 1807. March 6. Sess. 30. c. 25. (Drowned Lands in Orange County,) 132 1813, April 5. Sess. 36. c. 56. (Amendment of the Law. Tres- passes,) 320 , 6. Sess. 36. c. 75. (Ex- ecutors and Administrators. Distribution,) 3 53 1813, April 8. Sess. 36. bates. Surrogate. C.79. (Pro Guardian,) 100 36. c. 10. Sess. 36. c. 95. (Chancery,) 10 , 13. Sess. 36. c. 102. (Divorces,) 109. 197. 389. 606 STAYING PROCEEDINGS ON MORTGAGE. Vide Mortgage, 16, 17, 18, 19, 20. SUBSTITUTION. 1. If a creditor has a lien on two different parcels of land, and another creditor has a subsequent lien on one only of the two par- cels, and the prior creditor elects to take his whole demand out of the parcel of land on which the subsequent creditor has his lien, the latter is entitled either to have the prior creditor thrown upon the other fund, or to have the prior lien assigned to him, for his benefit. Cheesehrough and others v. Millard and others, 409 2. So, if a bond creditor exacts the whole of his demand from one of the sureties, that surety is entitled to be substituted in his place, and to a cession of his rights and se- curities, as if he were a purchaser, either against the principal debtor or his co-sureties. ib. 3. And if the prior creditor has put it out of his power to make the cession, it seems that he will be excluded from so much of his demand as the surety, or subse- quent creditor, might have ob- tained, if the cession could have been maile. ib. 4. But if the prior creditor, who has disabled himself from making the assignment, has acted with good faith, and without knowledge of the rights of the other creditor, he is not to be injured by his ina- bility to make the cession; the doctrine of substitution being INDEX 673 founded on mera equity and be- nevolence, ib. And see, as to the same subject, Stevens and others v. Cooper and others, 425 Vide Contribution. SUCCESSION. Vide Alien. SURETY. Vide Substitution, 2, 3. SURROGATE. Vide Guardian, 6. 12. TENANT BY THE COURTESY. Where a testator devises his real estate to his daughter, and empowers and directs his executors to sell the real estate, and- the daughter marries, and has a child, which dies, and the mother also dies be- fore the sale of the estate, and the husband survives, he is enti- tled, as tenant by the courtesy, to have the interest of the money arising from the sale secured and paid to him during life, in lieu of the rents and profits of the land. Dunscomb and others v. Duns- comb's Executors, 508 TIME. Vide Agueement, II. 10, 11. TRESPASS. Vide Injunction, I. 2, 3, 4. II. 15. TRUST AND TRUSTEE. I. How trusts are created, and their incidents. Cestuy que trust, and trust estate. II. Authority and duty of a trustee. III. Trustee's accounts. Allowances to, and charges against, trustee. IV. Expenses and compensation of a trustee. I, How trusts are created, and their incidents. Cestuy que trust, and trust estate. 1. Property held in trust does not pass to the representatives of the trustee, hut, as long as it can be traced and distinguished, it enures to the benefit of the cestuy qut trust. Moses and others v. Mur- gatroyd and others, 119 2. Where a tiust is created for the benefit of a person, without his knowledge at the time, he may afterwards, affirm the trust, and enforce its performance. ib. 3. Collateral securities to creditors are considered as trusts for the better protection of their debts; and equity will see that their in- tention be fulfilled. ib. 4. Where no trust appears on the face of a deed, nor any manifes- tation or evidence of it by writing, parol evidence is inadmissible to show the trust. Movan v. Hays, 339 5. Lands purchased by the husband, 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 husband had conveyed an estate so purchased, with notice of the manner of his acquiring it,, was held to be chargeable with the trust. Methodist Episcopal Church V. Jaques, 450 6. 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. Murray S^ Winter v. Ballou Sf Hunt, 566 7. 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 531 674 INDEX not being within the statute of frauds. Boyd v. MLean, 582 Vide Notice. 11. Authority and duty of a trustee. 8. A trustee cannot act for his own benefit in a contract on the sub- ject of the trust. Cfreen v. Win- ter, 27 S. P. Parldst v. Alexander and others, 394 9. So, a trustee, who purchases a mortgage or a judgment, which was a lien on the trust estate, at a discount, 'is not allowed to turn such purchase to his own advan- tage. Crreen v. Winter, 27 10. But it enures to the benefit of the trust : a trustee is not permitted to use, the information he gains as trustee, by purchasing in for himself; and the principle is the same as to buying in the trust estate, or buying securities up- on it. ib. II Where a trustee agreed to pur- chase and pay for a farm at the request and for the use of the cestuy que trust, out of the pro- ceeds of the .trust estate ; and he purchased the farm, for which he gave, his bond, secured by a mort- gage on the premises ; but when the bond became due, he refused to pay it, but procured a fore- closure and sale of the farm, by the mortgagee, at a loss of above 4,000, dollars; the trustee was held chargeable for this loss, and all the costs of the suits. ib. 12. An executor, administrator, or trustee, is not allowed to make any gain, profit, or advantage, from the use of the trust funds. Schieffelitf v. Stewart and others, 620 Vide Receivek, 2. When chargeable with costs, vide Costs, I. 2. 8. 532 HI. Trustee's accounts. AUpmancc to, and charges against, trustee. 13. 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 titist, to sell the same as H. might di- rect; and "upon payment of such sums as might be justly due to W., in relation to the execution of his trust, or that he might ad- vance or become liable for," to convey to H. the lands and pro- ceeds thereof, and to assign over to H. the bpnds 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 G., to her separate use, for life, 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 cestuy que trust, were not chargeable on the trust fund ; nor, if authorized by T-, could the trustee be allowed the benefit of them, in his account, further than what was actually necessary for the support of hersglf and chil- dren ; unless it appeared that the husband had applied the payments to the specific purposes of the trust. Green and others v. Win- ter, 26 14. 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, &c., such expenses not being within the purview of the trust, which was, to sell the land to raise money to pay off encum- brances, &c., and to restore the residue. He is entitled only ta INDEX 67S necessary expenditures, as for re- pairs, &c. ; and the cestui/ que trust has always his option to take, or refuse, the benefit or loss of the unauthorized act of his trustee, ib. 15. Nor will the purchase and sale of stock, hay, grain, and farming utensils, &c., be taken into the account of the trust estate. ib. 16. Where a trustee, though called on for that purpose, refused to ex- hibit to referees appointed by the Court, by consent of parties, an account of the 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. 26. 17. Where a trustee agreed to pur- chase and pay for a farm, at the request, and for the use, of the cestuy que trust, out of the pro- ceeds of the trust estate ; and he purchased the farm, for which he gave his bond, secured by a mort- gage on the premises ; but when the bond became due, he refused to pay it, but procured a fore- closure and sale of the farm, by the mortgagee, at a loss of above 4,000 dollars, the trustee was " held chargeable for this loss, and all the costs of the suit. ib. 18. A trustee for his wife, and a third person who had purchased of the husband with notice of the trust, were allowed for any beneficial or permanent improvements, made on the estate. Methodist Episcopal Church V. Jaques and others, 450 19. Where an assignee of property in trust for the benefit of the credi- tors of the assignor, having re- ceived the proceeds of the prop- erty in 1801, neglected, for many years, to distribute the fund among the creditors, pursuant to his trust, he was decreed to pay the amount, with interest, from the time he received the money, and all the costs of the suit brought by the creditors. Gray V. Thompson, 83 20. Executors and other trustees are chargeable with interest, if they have made use of the money themselves, or have been negli- gent, either in not paying over the money, or in not loaning 01 investing it, so as to render it prp^ ductive. Dunscomb and others v. Dunscomb's Executors, 508 S. P. Manning and others v. Manning' i Executors, 527 21. The time from which interest is to be charged in case of negli- gence, varies according to cir- cumstances. Dunscomb and oth- ers \. Dunscomb's Executors, 508 22. Six months fi;om the time the money was received is a reasona- ble period, in most cases, from which to charge interest against the trustee. ib. 23. Though the general rule is, that executors must pay costs, where they pay interest, because they are in default ; yet, where the devisee, or cestuy que trust, de- mands more than he is entitled to receive, and the executor properly submits to the direction of the Court, he will not be compelled to pay costs. ib. 24. if a trustee negligently suffer the trust moneys to be idle, he is chargeable with simple interest. Schieffelin v. Stewart and others, 620 25. If he convert the trust moneys to his own use, or employ them in his business or trade, he is charge- able with compound interest. ib. 26. Where an administrator employed the moneys belonging to his in- testate's estate in trade, for his own benefit, of the profits of which he refused to give any account, the master, in stating an account, after allowing a reasonable time for the settlement of the es- tate, charged compound interest making annual rests in the ao S33 676 INDEX. counts for that purpose, which was confirmed by the Court, ib. IV. Expenses and compensation of a trustee, 27. A trustee cannot demand a com- pensation for services, beyond what is founded on the positive agreement of the parties. Green and others v. Winter. 27 S: P. Manning and others v. Manning's , Executors, 527 28. And where a trustee, who was a counsellor at law, was to be al- lowed 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 execution of his trust, yet he was not entitled to a counsel fee, as a general re- tainer, nor for any thing more than what is understood, in the language of a Court of equity, to be " just allowances." Green and others v. Winter, 27 29. A trustee is not entitled to com^ missions on sales of the trust prop- erty, or on moneys received and paid by him, or any compensation for his care and pains in execut ing the trust; but he is entitled to an allowance per diem for his time and expenses of travel, &c. ib. 30. So, an executor is not entitled to compensation unless given by the will. Manning and others v. Manning's Executors, 527 31. Whether an agreement with the cestuy que trust, subsequent to the creation of the trust, or death of the testator, for the allowance of a commission, be valid? Qumre. S. C. 532 TURNPIKE. Where a turnpike company, incorpo- rated with the exclusive privilege of erecting toll gates and receiv- ing toll, had duly opened and established the road, with gates, 534 &.C.-; and certam persons, with a view to avoid the payment of toll, opened a by-road; near the turn- pike, and kept it open at their own expense for the use of the public, by which travellers were enabled to avoid passing through the gate and paying toll to the plaintiffs ; the Court granted a perpetual in- junction to prevent the defendants from using, or allowing others to use, such road, and ordered the same to be shut up. Crofon Turnpike Company v. Ryder and others, . 61 1 u. USE. The 4th section of the statute of uses, (sess. 10. ch. 37. 1 R. L. 72.) rendering lands liable to execu- tion against the cestuy que use, or 'cestuy que trust, applies only to those fraudulent and covenoua trusts in which the cestuy que trust has the whole real and bene- ficial interest in the land, and the trustee the mere naked and formal legal title. Bogart v. Perry and others, 52 USURY. 1 . An injunction will not be granted against a judgment at law, on a charge of usury, where the party seeks a discovery of the usury and a return of the excess beyond the lawful interest ; for the usury, would have been a good de- fence at law ; and no reason was given why the defendant did not seek the discovery while the suit at law was pending. Lansing v. Eddy, 49 2. On a bill for discovery on a charge of usury, an injunction will not be granted to stay pro- ceedings at law on the notes, or usurious contract, unless the plaintiff tenders, or brings into Court, the inoney actually lent, INDEX 67J and the lawful interest thereon. Rogers t. Rathbun, 367 5. P. Jkpper and another v. Powell and others, 439 3. 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, be- low par, the transaction is usuri- ous. Eagleson v. SkotweU, 536 4. And if it be impossible to ascer- tain the cash value of the shares, the company having failed, the sale will be rescinded, and the mortgage taken by the lender or- dered to stand as security only for the cash lent, and the interest thereon. ih. 5. A creditor is not allowed to make it a condition of a loan, that he shall receive a compensation for his services in procuring the money, as the allowing such a demand would have a tendency to usury and oppression, if it be not usury in itself. Hine v. Handy, 6 VENDOR AND PURCHASER. 1. 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 lien was not in- tended to be reserved. Garson V. Green and others, 308 8. Prima facie, the purchase money is a lien, and it lies on the vendee to show the contrary ; and the death of the vendee does not alter or defeat the lien. ih. 3. 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. ih. 4. A lis pendens, duly prosecuted, is notice to a purchaser, so as to affect and bind his interest by the decree ; and the pendency of the suit is deemed to commence from the service of the suhpana, after the bill is filed. Murray Sf Winter v. Ballou Sf Hunt, 566 5. 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. ih. 6. A purchaser of land buys at his peril, and is bound to look to the title and the competency of the vendor. ih. 7. A purchaser of land chargeable with constructive notice only, by means of a lis pendens, is not to be charged with costs, there being no actual fraud, though the pur- chase is set aside on the ground of the implied fraud. ih. Notice to purchasers, vide Mortgage,. II. Notice. Vide Agreement, II. Contribu- tion, 6. VOLUNTARY CONVEYANCE. Vide Agreement, I. Deed, I. 4. II. 13. 17. Fraudulent Convey- ances, 1, 3, 3, 4, 5, 6. Notice, 3. Settlement, 2, 3, 4, 5. w. WAR, Not a ground for suspending the ad- ministration of justice, vide Mortgage, III. 18, 19. WARD. Vide Guardian. WASTE. Vide Injunction, I. WILL. ] . S., being about to sail on a voyage to the West Indies, where he af^ terwards died, addressed a letter to M., containing the following 535 G78 INDEX clause : " A thousan i accidents may occur to me, waich might deprive my sisters of that protec- tion which it would be my study to afford ; and, in that event, I must beg that you will attend, to putting them in possession of two I thirds of what I may be worth, appropriating 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 after it had been proved as the last will of S., by the sur- rogate, and administration granted with the will annexed ; and that C, and her son, were each enti- tled to a moiety of one third ot the personal estate of the testator, m the hands of the administrator. Morrell and otJiersv. Dickey, 153 2. 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 survivors of them, without limitation of time, but was silent as to any further dis- position as to the principal or re-- siduum of his, real estate; this was held to be a bequest of the principal as well as the interest ; it being apparent, from the intro- ductory, and other clauses in the will, that the testator did not in- tend to die intestate in that re- spe6t. Earl and others v. Grim, 494 3. The introductory part of the will has some effect in the construc- tion of the subsequent devises; but the intention manifested in the introductory part is not alone sufficient, without an actual de- vise. S. C. 498 4. But if it be apparent, from the ' troductory part, that the testai i meant to dispose of the whole o( his property, and the expressions in the residuary clause may include the whole, they are to be taken in the largest sense, in order to correspond with the introductory part. ib. 5. The words of a will are to be construed according to their nat- ural sense, unless some obvious inconvenience or incongruity would arise from such construc- tion. Roosevelt and others v. Thurman, 220 6. 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 Ms decease, it was held that the word moneys must be under- stood, 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 depos- ited in bank, for safe keeping ; and not to comprehend promis- sory notes, bonds, and mortgages, or other securities ; there being nofhing in the will itself to show that the testator intended to use the word in that extended sense. Mann and others v. Executors of Mann, 231 7. Plate used in the family passes under a devise or conveyance af " household goods, or furniture." Bunn and others v. WlntJtrop and ^ others, 329 Parol evidence to explain, &c., a will, vide Evidence, II. !) WITNESS. Vide Evidence, III END OF VOLUME 1. 536