NEW JERSEY EQUITY REPORTS. H. W. GKEEN, I. S^. ^ ?0 rM, 1 REPORTS OF CASES DETERMINED IN THE Court of Chancery OF THE STATE OF NEW JERSEY, From January, 1838, to October, 1841, inclusive. VOL I. BY HENRY W. GREEN, Reporter. SECOND EDITION. Wrrn RICFEBENCES SHOWING WHERE THB CASES HAVE BSEX CITED, ArT O EKBULED, QUESTIONED, LOOTED, ETC., DOWN TO VOL. 38, N. J. LAW REPOBTS (9 VKOOM), AND VOL, 27, N. J. EQTT. REPOBTS (12 C. E. GEEEN), INCLUSIVE. BY JOHN LINN, ESQ., OF THE HUDSON COUNTY BAB. JERSEY CITY: FREDERICK D. LINN & CO. 1886. Tins volume contains the Opinions delivered in the Court of Chancery since the appointment of the present Reporter. Item- braces the Opinions of Chancellor PENNINGTON from the com- mencement of his term of office to the close of the last year. The previous volume of the New-Jersey Chancery Reports, by Mr. Saxton, closes with the opinions delivered at July term, 1832. The cases from July term, 1832, to October term, 1837, inclusive, remain unpublished. It was the design of the Re- porter to have published those opinions before the publication of tho present volume, in order that the Reports might have been furnished to the profession in a regular series. But the execution of that purpose has been prevented by the impossibility of pro- curing in season all the opinions delivered during that period which it was deemed important to publish. A large portion of tli3m are now in the hands of the Reporter, and will be pub- 1'shed as soon as the requisite number can be obtained to com- plete the volume. The law authorizing the appointment of the Reporter in Chancery, directs the publication, also, of cases decided in the Prerogative Court of this state. The few cases decided in that court which were deemed of sufficient interest to warrant their publication, are included in the present volume. TRENTON, 30th April, 778378 CASES REPOETED IN THIS YOLUME. The letter v. follows the name of the plaintiff Allen, exparte, . . 888 Allen, Dickey v. 40 Allen's adm'r v. Woolley's ex'rs, 209 Allen's cx'rsDare's adm'rs v. 288,415 Andruss, Goble v. . 66 Autcn, Howell's ox'rs v. , 44 B Bailey v. Stiles; ."""^ 220 Bassett v. Johnson, . .154 ] Jerry v. Van Winkle's ex'rs, 269,890 Bonnell, Crana v. , . 2G4 Bowen v. Vickers, . . 520 Brittan, Chetwood v. . 438 Erookfield v. Williams, . 841 Brnen v. Crane, . . 347 Buck, Torrey v. . . .866 Burns, Faulks v. |f . 250 Cammack v. Johnson, , 163 Champion, Flanagin v. . ,51 Chester v. King, . . 405 Chetwood, Miller v. . .199 Chetwood v. Brittan, . 438 Clevenger, Edgar v. . . 258 Corey v. Voorhies, . . 5 Coster v. The Monroe Manu- facturing Co. . 467 Cose v. nalsted, . . .811 Coykendall v. Rutherford's ex'x .... 860 Craip, Penn v. . . . 495 Cramer, Read's adm'rs v. . 277 Orane v. Bonnell, . , 264 Crane, Brucn v. , . 847 Curtis, Phelps v. . . . 387 Cuttrell, Schcnck's adm'r v. 297 Dare's adm'rs v. Allen's ex'r 288,415 Decamp v. Decamp, . . Deraeritt, Neville v. . . Dickey v. Allen Donnington's adm'r v. Mitch- ell's adm'x . . t Drake, Read v. . . Dummer, Whiter. , Darling, Hazen v. . . Dyer, Wetmore v. 294 321 40 243 78 C27 133 386 E Edgar v. Clevenger, . . 258 Eldridge's adm'rs, Garwood v. 145, 290 Elizahcth-Town and Somervillo Railroad Co., Ross v. . 423 Ely v. Perrine, . . . 306 Exparte, Van Vorst's heirs 292 " Allen, . . . 888* Faitoute's ex'rs v. Haycock, 105" Faulks v. Burns . . 250 Flanagin v. Champion, . . 61 Flax and llemp Manufactur- ing Co., Grosvenor v. . 453 Flock, Gest v. . . . 1( 8 Frazee v. Inslee, . ' . 239 VI, TABLE OF CASES. G Gars-cod v. Eldridge's adro'rs.* 145, 290 (lest v. Flock, ... 108 Goble v. Andrnss, . . 66 Graecen v. Graecen, . . 459 Crosveuor v. The Flax and IIouip Manufacturing Co. . 453 H IT allied, Ccxe v. . . 311 Ilartshorne v. Hartshornc, . 349 Ilatficld, Ross v. . . 363 Haycock, Faitonte's ex'rs v. . 105 Iliizen v. Burling, . . 133 lloagland v. Hoagland, . 501 u v. Latourette, . 254 llowell's ex'rs v. Auten, . 44. I&J Inslec, Frazce v. . . 239 1 V.IRS, Layton v. . . . 387 Johnson, Bassett v. . . 154 " Camuaack v. . .163 King, Chester v. . 405 Latonrctte, Hoagland v. Lay too v. Ivans, . . " I illy v. Quick, . Ixnibat, V reel and V, . , I.wve v. Williairson, , Lowmason, Vliet v. . , M Manners v. Manners, . , 884 Mrltthewsv. Roberts, . . 338 McEwtn, Van Waggoner v. 412 Me cely, Stillwcll v. . 805 Alcrwin v. Smith, . . 182 Miller v. Miller, . . 139 " v. CLetwood, . . 199 Mitchell's adm'x, Donning- ton's udoi'r v. 243 Mxmroe Manufacturing Co. Ccstor v N Neafie, Woodhull v. . . Neville v. Demeritt, ^ . O Oakley v. Faterson Bank, " v. O'Neill, . Outor.lt v. Van Winkle, Paterson Bank, Oakley Penn v. Craig, . , Perrine, Ely v. . Phelps v. Curtis, Pittenger, Robeson v. Price v. Smith, . Q Quick, Lilley v. a m 467 409 821 El 73 287 613 173 4.95 396 387 57 516 [97 Read v. Drake, . . 78 Read's adm'rs v. Cramer, . 277 Richmond v. Richmond, . 90 Riggins, Seaman v. . .214 Roberts, Matthews v. . 338 Robeson v. Pittenger, . . 67 Ross v. Ilatficld, . . 363 " v. The Elizabeth-Town and Somerville Railroad Co 422 Rosscll, trustee, Trenton Banking Co. v. . .492,511 Rutherford's ex'x. Coyken- dall v. 360 S Salter v. "Williamson, . 480 Schenck's adm'r v. Cottrell, 297 Scamon v. Riggins, . .214 Smith, Price T. . . 516 44 West v. ... 309 u Morwin v. . . 182 Snowhill v. Snowhill's ex'r, . 80 TABLE OF CASES. ViJ. Ptiles. Bailey v. . bt ill well v. McNeely, Striker, WJiitenack v. Taylor v. Thomas, . . 106 Torrey v. Buck, . . . 366 Trenton Banking Co., v. ttoodruff, . . . .117 Trenton Banking Co , v. liossell, trustee, &c. 492, 511 Van Riper v. Van Ripers ex'rs, 1 v. Williams . 407 VanWnggoner v. McEwen, . 4 1?/ Van Winkle, Outcalt v. . 513 VauWiukle's ex'rs, Berry v. 269,390 VanVorst's heirs, exparte, . 292 Vickers, Bowen v. . . 520 Vliet v. Low mason, . . 404 Voorhees, Corey v. . . 6 Vreeland v. Loubut . 104 "West v. Smith, ... 309 Wetmore v. Dyer, . . 38f Wliite v. Duminer, . . 627 Whitenack v. Stryker, . . 8 Williams, B rook field v. . 341 Van Riper v. . 407 Williamson, Low v. . . 82 Salter v. . . 4SO Woodhnll v. Neafie, . . 409 Woodruff, Trenton Banking Co. v. . 117 Woolley's ex'rs Allen's adm'rs v. 209 CASES CITED IN THIS VOLUME Alagcr v. Rowley, 6 Ves, jr., 749 Am'er v. Amler, 3 Vcs. 583 Askew v. Odcnheimer 1 Bald. 3SC , B Budccley v. Bruce 4 Paige 98 Bailey v. Wright, 18 Vesey 49 . Barrow v. Bispham, 6 Ilalst. 119 . Bates v. Dclevan, 5 Paige 307 Bedell v. Bedell, 1 Johns. Ch. C04. . Belts v, Betts, 1 Johns Ch. 198 . Billings v. Brooksbank, 19 Vcsey 505 B'mgham v. Bingham, 1 Vc- fioy sen. 126 IJlmint v. Bestland, 15 Ve- sey 515 . . . . Bottle v. Bluudcll, Ccopers Eq., 136 . Brodorick v. Brodrrick, 1 P. I Wms.239 . Bmnpusv. Platncr, 1 Johns. Ch. 213 . Burtis v. Hopkins, Adm'rs Cad man v. Homer,* 18 Ve- Boy 11 Campbell v. Western, 3 Paige 138 . Champion v. Brown, 6 Johns < h. 402 .. Cliaso v. Lincoln, 8 Mass. Copper v. Weils, Saxt. 10 Coster v. Murray 6 Johns. Ch. 522 . 212 Cumberland v. Coddingten. 74 3 Johns. Ch. 261 858 115 Curtis v. Curtis, 2 Brown Ch 620 : . 3:6 238 D Davis v. Dinmoody, 4 Tern 356 Rep. C78 . 101 Docoucho v. Savctier, 3 249 Johns. Ch. 216 . . : 212 DcMantort v. baunders, 20 526 E.C.L. 410 . . 1C9 Den v. Vancleve, 4 Wash. 526 C. C. 267 85 Deu v. Zellers, 2 Ealst. 154 195 93 Denton v. Stewart, 1 Cox 258 .... 275 142 DeRiemcr v. DeCantillon, 4 Johns. Ch. 88 . : 286 232 Devan v. Fowler, 2 Paigo 402 . . , ir.s 286 Dixon v. Parker, 2 Vesey sen. 225 .... 263 421 Douglass v Sherman, 1 Paige Ch 858 906 231 Duncan v. Dodd, 2 Paige 69 216 380 C 477 Earl of Clarendon v. Ilors- 489 Icy, 1 P. Wins. 447 , 345 Elliott v Collier, 3 Atkyns 526 . 247 Evnns v. Llewollen, 2 Brown's Ch. 151 . . . : ,. 286 207 Esparto Coster, 2 Johns. Oh. 503 . . . 151 301 Esparto Hamper, 17 Vescy 410 169 256 Esparto Ilodgkins, 19 Ve- sey, 294 . . . 1P.9 232 Exparto Lay ton, 6 Vesey 276 438 i . . 170 TABLE OF CASES CITED. IX. Expnrte Norfolk, 19 Vesey 4J6 . . . .169 F. Finch v. Earl of Wincbel- sea, 1 P. Wins. 282 . 257 Fotherby v. Pate, 3 Atkyns 605 .... 74 French v Chase, 6 Greenl. 1C6 . 170 G. Ceo v. Spencer, 1 Vernon, 35 .... 286 Glass v. Oxonham 2 Atkyns 121 ... 74 Goodrich v. Pemlleton, 8 Johns Ch. 887 . . 212 Green v. Smith, 1 Atkyns 572 . . . 256 Greenaway v. Adams, 12 Ves.jr. 395 . , 275 n. ITarney v. Ilarncy,! P.Wms. 125 ... . 126 Hatch v. Cobb, 4 Johns. Ch. 559. . . . 275 Iltuvkins v. Hawkins, 10 Eng. C. Ch. 2 249 Herbert v. Tuthill'a Ex'rs. 1 Saxt. 14 ... 114 Herrick v. Blair, 1 Johns. Ch. 101 ... 301 Holland v. Prior, 8 Con. En ? .Ch.487 . . 75 Howell's Ex'rs. v. Anten. 1 Green Ch. 44 831 J. Jackson v. Fuller, 4 Johns. 215 . . * 519 James v. Johnson, 6 Johns. Ch. 420 . . 266 Jewson v. Monlson, 2 Atk; 420 ', ' . . ' . 516 Johnson v. Gere 2 Johns. Ch.547 . . . 4i3 Jcncs v. Clark, 20 Johns. 60 . fil9 K. KempshaL v. Stone,5 Johns. Ch. 194 .. . Kane v. Bloodgood, 7 Johns. Ch. 90. ... Ketcham v. Evertson, 18 Johns. 363 . . King v. Berry's Ex'rs. . King v. Morford et al. Saxt. 274, 281 . . Lechmere v. Brazier, 2 Jao. & W. 286 . . Leggett v. Dubois, 2 Paige Ch. 212 . . . Lilly v. Quick, 1 Green Ch. 97 ... Lord v. Baldwin, 6 Pick, 348 .... Lord Carrington v. Payne, 6 Vesey, 4L1 . . Lyon v. Richmond, 2 Johns Ch. 60 M, iohn9. 275 212 5-5 487 203 402 366 126 170 232 150 Mai in v. Malin, Ch 238 ... 807 Marks v. Pell 1 Johns. Ch. 598 ... 266 McKircher v. Hawley, 16 Johns. 288 . .519 Mcrwin v. Smith, i Green Ch. 182 .819,497 Miller v. Chetwotxl, i Green Ch. 1 99 . 403 Miller v. Miller, 6 Johns. Ch.91. . . 93 Miller v. Wack, \ 8a.-rt. 2i4 ii!6 Mitford v. Mitford, 9 Vesey 87 ... 5i6 Mohawk Bank v. Atvatci-2 Paigo Ch. 60 . . 319,334 Moody v. Payne, 2 Johns. Ch. 548 . . 168 Morris' Ex'rs. v. Swartwoat 2i6 Mortlock v. Butler, lO Ve- Bcy, 292. . . 207 Moss v. Gallimore, Dong. 279 .... 519 TABLE OF CASES CITED. Mullett v. Hook, 22 Eng. COM'. Law. 259 . 170 Wundy v. Mundy, 2 Ves. jr, 128 . . . . 356 Newland v. Champion, 1 Vesey sen, 105 O Palmer v. Fletcher, 1 Lev- inz 122 ... Perry v. Wright, 1 Cond. Oh 188 Pearson v. Morgan 2 Brown Ch. 389 . Phillips v. Thompson, 1 Johns, Ch. 131 . , Pope v. Biggs, 9 Barn and Cress 245 . . R 74 Osgood v. Franklin, 20 Johns Oh. 21 . 115 62 153 d80 275 519 21G Regua v. Rea, 2 Paige 339 Rich v. Jackson 4 Brown C. C. 519 . . . . 207 Robinson v, Cropsev 2Edw Ch. 138 .... 266 I odgcrs v. Rodgers, 1 Paige 426 .... 171 Rodman v. Zilley, Saxt 326 208,402 Roffey v. Shnllcross, 4Madd, 227 . 402 Roosevelt v. Gardner, 2 Pen- ning, 791 . 47 Roosewell v. Pryor, 6 Mci. 116 .... 63 Russell v. Austin, 1 Paige 193 .... 339 Scheiflin v. Stunrt, 1 Johns, Ch. C25 .... Bclmykr v. Iloyle, 6 Johns Ch. 190 421 Seymour v Delancey, 6 Johns Ch. 226 . . . .402 Shannon v. Marseles, Saxt . 426 : 413 Slee v. Manhatten, Co. 1 Paige 56 a 266 Bonders v. Vansyckle, et al 3Halst313 . . .518 Squib v. Wyn, 1 P. Wins. 3,8 . . . . . 247 Starr v. Ellis, 6 Johns. Ch. 395 . . ' . 33G Stevenson, et al v. Black, Saxt. 342 . . . 197,33 Stewart v. Stewart 7 Johns Ch. 229 .,. 247,24'J Stem's v. Barker, 6 Johns. Ch. 170 . . . . 150 f-'tory v. (Mine, 12 Mass i57 C4 Strong v. Stewart, 4 Johns. Ch. 167 , . 206 Stewart v. Stewart, 7 Johns. Ch. 229 ... . 131 Swaine v. Perrine, 5 Johns. Ch. 488 . . 356 Taylor v. Fields, 4 Ves. 396 168 The Ordinary v. RoHnson, 1 Halst. 195 ... 127 The Ordinary v. Snook, 5 Halst. C5 . 130 The People v. Dunlap, 13 Johns. 440 . . .185 Thompson v. Brown, 4 Johns Ch. 625 . . . .138 Tice v. Annin, 2 Johns. Ch. 125 ... 350 Tiernan v. Wilson, 6 Johns Ch. 411 . . 196,497 Tittcnson v- Peat, 3 Atkyns 526 . . . .301 Tonlmin v. Steel, 3 Merriv. 221 . . ' , . . 152 Town v. Needham, 3 Paige. Ch.553 . . .345 Trenton B'k'g Co. v. Wood- ruff, 1 Green Ch. 292 . 292 Trower v. Newcomc, 8 Merriv. 704 . . 208 TABLE OF CASES CITED. XI. Underbill v. Van Cortlandt 2 J. Ch. 301 . . 301 V. Van Alst v. Hunter, 5 Johns. Ch. 148 . . 160 Van Bergen v. Van Bergcu, 3 Johns. Oh. 237 64 Van Epps v. Sehencctady, 12 Johns. 436 . . 525 Van Epps v. Van Deusen, 4 Paigo, 64 . . 516 Van Vechten v Terry, 2 Johns. Ch. 238 . 307 Vceder v. Foada, 3 Paiga 07 .. . 208 W. 'Waring v. Ward, 7 Ves. jr. 337 . . 3B8 Watt v Watt, 3 Ves.jr.244 247 Wildman v. Wildrnan, 9 Ves. 174. . . .421 Wilkinson v. Parish, 3 Paige 653 .. . . 36G Williams v. Williams 9 Mod. 299 . . 74 Williamson v. Williamson, 3 Johns. Ch. 290 . 216 Winch v. Winchester, , 1 Vcs. &Beam 878 . 207 Woods v. Monell 1 Johns. Ch. 502 , . 197,319,497 Wyndham v. Chetwood, . 1 Burr, 424 . . 131 Y. Youle v. Richmond, Saxton, 637 * 268 CASES ADJUDGED ft THE COURT OF CHANCERY OF THE STATE OF NEW-JERSEY. JANUARY TEEM, 1838. WILLIAM PENNTNGTON, Esq., CHANCELLOB,. JAMES VAN RIPER and PHILIP VAN RIPEB v. ADRIAN RIPER and ABRAHAM VAN RIPER, executors of PTTTLTP YAK RIPER, deceased. A legacy will be presumed to be a satisfaction of a demand against the testa- tor, where there are no circumstances showing a different intention. The general rale, that a legacy will be deemed a satisfaction of a debt dne from the testator to the legatee, is not favored, and applies only whore no presumption to the contrary can be drawn from the face of the will. Where the testator by his will directs the executors " to pay all his jast debts;" where the legacy is payable when the legatee arrives at age and whero the debt is in a measure unliquidated, the legacy .is no satisfaction of the debt. A present debt can never be satisfied by a contingent legacy. THE bill was filed by the children and next of kin of Abraham P. Van Riper, for the recovery of their distributive share of his estate. It charges, that Abraham P. Van Riper died intestate ; that his estate came to the hands of Philip Van Riper, one of his administrators ; that Philip Van Riper afterwards died, having executed his last will and testament, and appointed the defendants CASES IN CHANCERY, Van Ripers v. Van Riper's Executors. his executors. The bill prays an account, and a decree for the clear residue after the payment of debts. The answer admits the material allegations of the bill, but insists that the claim of the complainants was satisfied by certain devises and legacies to them, contained in the last will of the said Philip Yan Riper. The only question submitted to the court was* whether the de- vises and bequests in the will operate as a bar to the complain- ant's demand. Frelinghu'ffsen, for defendants, cited 6 Ves. 369 ; 3 P. TF. 353 ; 4 Ves. 464; 3 Ves. 535 ; 2 Vemon, 484; 2 Aik. 521-2; 3 Aik. 67, 97-8 ; 2 Brown's Chan. 352, 530 ; Preston on Le- gacies^ 342-7 ; 4 Madd. 420. P. Dicker son, for complainants, cited 2 P. W. 55 3 ; IP. TF. 410 ; 1 Esp. Rep. 187-8 ; 1 P. IF. 300 ; 1 Afk. 428 ; 6 Ves. 238 ; 3 Aik. 96, 98 ; 2 Aik. 300 ; 4 Ves. 383 ; 3 Aik. 65 ; 2 Ves. sen. 636 ; 2 Salic. 508 ; 1 Dess. 314; 3 Ves. jr. 466. THE CHANCELLOR. Abraham P. Yan Riper died in the year ' 1822, intestate, leaving considerable personal estate, and more than sufficient for tho payment of his debts ; and leaving also the complainants, his next of kin, entitled to the same. Philip Yan Riper, the father of Abraham P. Yan Riper, and James I. Post, took out letters of administration upon the estate of Abraham P. Yan Riper, made and filed an inventory and appraisement there- of, and otherwise took the charge and settlement of the same ; but both died without rendering any account, or finally settling up the business. The bill charges, that Philip Yan Riper was the active man in the management of the business, and collected considerable sums of money, which ho never paid over to the complainants. Philip Yan Riper died in the year 1834, leaving a Last will and testament, and therein appointed the defendants executors thereof ; who proved the said will, and took upon themselves the execution thereof. Tho bill seeks an account ] of the defendants as such cxpcutors, of the estate of Abraham P. i JANUARY TERM, 1838. Van Ivipers v. Vau lliper's Executors. Van Riper in the hands of their testator, and prays a decree for the payment to the complainants of the clear residue of the estate of their father, Abraham P. Van Riper, as upon such account shall appear to be due to them. The defendants have answered* admitting these facts ; but insist, that by the will of Philip Van Riper, he devised to the complainants certain lands, and also be- queathed to each of them a legacy of five hundred dollars. That these legacies greatly exceed the amount due the complainants from Philip Van Riper, as the administrator of their father ; and that, by the said will, the complainants are made residuary le- gatees, each, of one equal fi fth part of the testator's estate. It is insisted, that these several devises and bequests to the com- plainants, and particularly the legacy of five hundred dollars to each of them, are in satisfaction of the complainants' demand in this cause ; and I am desired by counsel to decide this question alone. The general principle is well settled, that a legacy will be presumed to be a satisfaction of a demand against the testator. This is the rule where there are no circumstances in the case, or ipon the face of the will, showing a different intention. The -ale is founded on the presumption that such was the intention of the testator. For the general rule, I refer to Preston on Le- qacics, 339, 342, and 347 ; 6 Vesey, 321 ; 3 Peere Williams, 353 ; 2 Vemon, 484 ; 2 Atkyns, 521-2 ; 3 Atkyns, 68, 97. "While the general rule of ademption is thus well settled, and as I think a very proper and just one in many cases, it is very observable that courts do not favor it much, and have refused to extend it any further than to the simple case of considering it as satisfaction where no presumption to the contrary can be drawn from the face of the will. This disinclination to the rule is mani- fested in what is said by the court in the cases just referred to in Peere Williams and 3 Atkyns. They seem not only willing, but desirious of laying hold of any circumstances to take the case out of the general rule. The lord chancellor, in the last case cited, nses this strong language : " In later cases the court have said this doctrine has been carried too far, for legacies naturally CASES IN CHAKGERT, Van Ripers v. Van Riper's Executors. imply a bounty ; and therefore though the court of late have not altogether disavowed this doctrine of satisfaction, yet they have been very inclinable to lay hold of any circumstances to distin- guish the latter from former cases." In 1 Aikyns, 428, it was held that a devise of land could not be taken in satisfaction for money. In 1 Peere Williams, 410, which is a strong case on this subject, the lord chancellor took the case out of the general rule, (which was fully admitted), on the ground that the will directed "all the testator's debts and legacies to be paid." In 1 Esp. Cases, 188, lord Kenyon ruled that a legacy was never deemed a satisfaction of an unliquidated demand ; and in 2 Atkyns, 300, it -was held, that the fact of the legacy being con- tingent took the case out of the general rule. While I admit the force and propriety of the general rule, as I have stated it, and of the exceptions which have from time to time been taken, in looking into the will now before the court I have no hesitation in arriving at the conclusion, that the devises and bequests there made to the complainants, were never intended by the testator as a satisfaction of the demand made in this ac- tion. In the first place, the testator in express words directs his ex- ecutors to pay all his just debts. In the second place, in the de- vise to the complainants of the lands, the will directs the division to be made between thorn when Philip should arrive at age, when he was to take possession of his share ; and in like man- ner with James, when he should arrive at age ; and in the mean time the executors to receive the rents, and out of his estate generally to give them a good common education and trades. The five hundred dollars was not to be paid to them till they se- verally arrived at age. All the cases agree, that a present debt can never be satisfied by a contingent legacy. Nor can there bo any reasonable presumption that this testator ever intended to pay a demand due at the time, by legacies to be payable at a fu- ture day. The debt may also be considered in tin's case in a measure as unliquidated ; lie had never settled his accounts aa JANUARY TERM, 1838. Van Ripers T. Van Riper's Executors. administrator. They are all open to tliis day, and it seems from the answer of these defendants, that they have considerable diffi- culty in ascertaining how much the balance due is. This case is in my judgment made stronger, from the fact, that the debt due by the testator was not in his own personal right, but as the representative of another man's estate. From all these circum- stances, it would be going too far, and pressing the rule beyond its proper limits, to consider the provisions made in this will in the light of a satisfaction to the complainants. I shall therefore direct a reference to a master, to state an ac- count, as prayed by the bill. CITED in Pdrie v. Voorhees Ear., 3 C. E. Or. 291, ASHBEL ~W. COEEY V. "WlLLIAM T. VoORflI3 ttTld CHASLE8 F. YOORHEES. It is requisite that the party obtaining an injuucti m uso due diligence in ex- pediting his cause ; and if the complaint is guilty of gross neglect in pro- ceeding with his suit, the injunction will be dissolved. It is no ground for the dissolution of an injunction, that the subpcena could not bo eerved ; nor, that the injunction itself was served illegally, or without the jurisdiction of the court. Upon a motion t > dissolve an injunction on the ground that tho subpoena hH not been served, the sheriff's return to the subpcena is conclusive, and can- not, be contradicted by affidavits, u..less collusion be shown between the sheriff and the complainant or his solicitor. Tuis bill, which was for an injunction, was filed on the 26th of August, 1837, and contained the usual prayer for a subpoena. A 6ubpO2na had been issued, returnable to the term of October, 1837, and returned by the sheriff of Essex, that the defendants could not be found in his county to be served with process, with the usual affidavit of non-residence. At the same term an order of publication was made. An injunction, pursuant to the prayer of the bill, had been issued and served upon the defendants ia the state of New- York. CASES IN CHANCERY, Coroy v. Yoorhies. It. Van Arsdale, for the defendants, now moved to dissolve the injunction, .and in support of his motion read the affidavits of the defendants. He also cited 1 Grant's Ch. Prac. 70, 329 ; 1 Ed- ward? a Rep. 631 ; 1 Price's Rep. 92 ; 3 Brown's Chan. Rep. 470; 18 Vcsey, jr. 471; Hoisted? 8 Dig. 178; 1 Vcs. and B. 419 ; 4 Paige, 439, 425. The grounds of the application sufficiently appcarin the opin- ion of the chancellor. A. WJiiteJiead, contra. THE CHANCELLOK. H. Van Arsdale, in behalf of the de- fendants, moved to dissolve the injunction issued in this cause, on three grounds : 1. Because the defendants had never been served with a subpoena : 2. Because the injunction was served out of this state and in the state of New- York ; and 3. Because the original injunction was not shown to the party at the time of the service. As to the first ground : According to the English practice, a subpoena is required in many cases to be served before the appli- cation for an injunction can bo made, and in fact will not then be allowed until answer or default in the party in not appearing. In all such cases, it becomes very imporsant to know that tho subpcena has been issued and served. Under our practice injunc- tions are issued on filing tho bill, and before issuing a subpoena or waiting for an answer. Tho only requirement which the court can make on the party obtaining the injunction, is, that ho "use due diligence in expediting his cause. Nothing could work greater injustice, than to allow a party to obtain an injunction, and then let his cause sleep. It was accordingly decided bj chancellor "Williamson, at April term, 1829, (see a reference to this case in IlalstecFa Digest, ] 78), that a party must take out a subpcina on taking out an injunction, and that ho would dis- solve an injunction if that practice was not adopted. The same rule would apply to any other case of gross rtcgjoct on tho port of the complainant to progress in his suit. JANUARY TERM, 1838. Corey v. Yoorhies. In the present case, it is agreed by counsel on the argument, that the bill was filed on the 26th day of August, a subpoena taken out returnable to the next stated term of the court, and returned by the sheriff of the county of Essex that the defen- dants could not be found in his county to be served with process, with his affidavit in the usual form of their being absent defen- dants residing in the state of iNe" w-York ; and that an order of publication was made at the term to which the subpoena was re- turned. What could the complainant have done more ? The defendants have severally made affidavit that they have not been served with a subpoena ; and one of them, that since filing the bill he has repeatedly been in the county of Essex. These affidavits do not vary the case. The return of the sheriff should be conclusive for the present purpose, unless some collusion is shown to exist between the sheriff and the complainant or hia solicitor, which is not pretended. Besides, all that the defendants swear to may be perfectly true, and the sheriff never have seen the defendants in his county or been able to make personal ser- vice on them or either of them. I cannot, therefore, as the com- plainant seems to have done all in his power to progress with his suit, according to the practice of the court, sustain the motion on the ground that the subpcena was not served. As to the second and third reasons, they cannot lay the foun- dation for dissolving an injunction. If the in 'unction has been served out of the jurisdiction of the court, and in a manner not conformable to the settled practice, that may all be very proper to urge on a motion for an attachment fora contempt in case of disobedience to its requirements, but cannot be a reason for set- ting aside the injunction and order. There are cases where the party will be considered in contempt when the injunction was r.ot regularly served, provided they were present in court at tho time it was ordered, or had other certain knowledge that the same had been ordered. The motion therefore must bo denied. CITED In West v. Smith, 1 Gr. CTi.310; Lroicnv. Fulla; 2 Lear, 274; Iloag land c. Tdus, 1 Me Cart, 82. TFTTC PREROGATIVE COURT, JANUARY TERM, 1838. WILLIAM PE1TNINGTOW, Esq., ORDINARY. JOSEPH Y. WHITENACK and HENKT "WnrrENACK v. URIAS' STKYKEB and JOHN H. YOORHIES. The preTimption of law is in favor of testamentary capacity, and ho who insists on the contrary has tho burden of proof, except where insanity in the testator has been shown to exist at a time previoits to the execution of the will ; in that case the onus is shifted, and the party offering the will is bound to show that it was executed at a lucid interval. The time of the execution of the will is the material period to which the court must look o ascertain the state of mind of the testator ; and although it is competent evidence to show the stite oi tho testator's mind at any tims pre- vious or subsequent to tho execution of the will, yet such proof is always liable to be overcome by natisfictor/ evidence that Ihe testator, at the time he executed the writing, had the possession of his faculties. The testamentary witnesses, their opinions, and the facts they state as occur- ring at the time of the execution of tho writing, are to be particularly re- garded by the court. The opinions of witnepges other than the testamentary, as to tho capacity of the testator, are to be received as tho slightest kind of evidence, except BD far a* those opinions are based on facts and occurrences which are detailed before the court. Witnesses nre to state tho fact .; and it is the business of the court, from those facts, to pronounce the opinion, upon settled rules and guides, whether the testator is competent or not. \ JANUARY TERM, 1838. Whitenack v. Slryker anil Voorhies. Old age, failure of memory, and oven drunkenness, do not of themselves necessarily take aw.iy a testator's capacity. Ho may be ever so aged, ve y infirm in body, and in habits of intemperance, uiid yet in the eye of tlie law possess that sound mind necessary to a disposition of his estate. It is not indispensable that the party offering a will or codicil for ^robato pro- duce all the witnesses, provided those produced prove its duj and legal exe- cution. . The witnesses must attest tho will at the request of the testator, but it is not necessary that the testator should openly make the r quest. His acquies- cence when the witnesses ore called in for that purpose by anotuer, is suffi- cient. Upon a question of capacity, au inquisition of lunacy is competent but not conclusive evidence. In cases of doubt, requiring full investigation, costs before tho orphan's court and also the costs of appeal, with reasor able couusel fees on tho hearing , will be directed to ba paid oat of tb.3 testator's estate. i i THIS case came before the court upon an appeal from the decree of the orphan's court of the county of Somerset. On tho death of Abraham Whitenack, of said county, three writings were presented to the surrogate for probate ; one purporting to be the last will and testament of Abraham "Whitenack, bearing date the 23d day of March, 1830 ; one purporting to be a codicil to that will, bearing date the 31st day of August, 1833 ; and another, purporting to be a second or further codicil, bearing date the llth day of August, 1835. A caveat against the probate of any of the said paper writings, was filed by Unas Strykcr and John II. Voorhies, sons-in-law of the testator, and the respondents in this court. Many witnesses were examined before the orphan's court, counsel were heard, and at January term, 1837, a decree of that court was made, admitting the paper writing purporting to be the last will and testament to probate, and rejecting both the codicils. The orphan's court further directed the costs to be paid out of the testator's estate. The decision of the orphan's court s to the will was acquiesced in, but an appeal was taken from that decision so far as it relates to the two codicils. The question came before this court upon the validity of the first and second codicils. 10 PREROGATIVE COURT, Whitenack v. Stryker and Voorhies. Frelinghuysen, for appellants. In investigating the question of testamentary capacity, the time of executing the will is principally to be regarded, and tho testamentary witnesses are the most important. 4 Wash. C. C. R. 262, 268; 11 Ves. jr. 11; 19 7foW,494; 5 Cond. Ecdes.Rep. 411 ; 1 Ibid, 47; 2 Hid, 371 ; 3 StarJs. Ev. 1707, n. 2. The presumption of law 13 in favor of capacity, and against fraud. 4 Wash. C. C. R. 2G9; 1 Swmb. 122: 1 Ibid, 132, sec. 5, C. Old age, of itself, will not render a testator incompetent ; nor drunkenness, unless he be at the time under its immediate influ- ence. 3 Stark. Ev. 1703, n. 1 ; 5 John. Oh. Rep. 153. Failure of memory is no ground of objection to a testator's ca- pacity, unless it extend to a knowledge of his family and friends. It is enough that the testator understands the business in which lie is engaged. 3 Stark. Eo. 1705, n. 1 ; 8 Mass. 371 ; 3 Serg. andR. 267; 2 Phill. Ev. 191; Swinb. 187, 164, sec. 10 and 11; 2 Southard, 675; 4 Wash. C. C. R. 267. A man may by fair argument or persuasion induce another to make a will in his favor. 3 Stark Eo. 1707, n. 1. The influence to impair a will must be coercivo and forcible. 8 Cond. Eccles. Rep. 254; 1 Hid, 336; 2 Law Library, 200, 202, Wyatfscase. The inquisition of lunacy against the testator is not conclusive cs to lib capacity to make a will. Higlimorc on Luna'jy, 34} 3 Stark. 1702, n. 1, 1707. The mere opinions of witnesses, other than tho testamentary witnesses, are not to bo regarded. 3 Stark. 1707, n. 2. TT. Thomson and Ilartwell, for respondents, contra. They cited Rev. Laws, 221, sec. 3; Hid, 7, sec.~2; 2 Law Library, 203, (She 1 ford on Lunatics;} Ibid, 4, 180; Phill. Wo. 434; 2 Bl. Com. 282, in notes; 2 Law Library, 162, 9 ; C John. Ch. 375 ; 2 Law Library, 70, 41 ; 3 Mass. 371 ; Be&a Hcd. Jur. 300-7, 3oO TERM, 1838. 11 Wbitenack v. Strvker and Voorhies. They insisted that the inquisition must be overcome by proof. 5 Hals. 217. That all the attesting witnesses must bo examined, and it must appear that they subscribed as witnesses, at the request of the testator. 2 Chitty's Bloc. 302-3 ; 3 Stark. Ev. 1692. NoWMt) in reply. THE ORDINARY. The principles of kw applicable to cases of this character have become well settled, and it is very impor- tant to adhere to those rules which long experience has fully tested to be wise, in considering so important a question as that of the capacity of a testator. The following general rules and principles (and which are all that are- necessary to be ascertained for the purposes of tliis cause) may, I think, be considered as well settled. In fact, upon the hearing there seemed to bo no difference among the counsel as to the general principles of lavr, but the case turned mainly on the evidence. The first principle is, that the presumption of law is in favor of capacity, and that he who insists on the contrary has the burden of proof, except where insanity in the testator has been shown to exist at a time previous to the execution of the will ; in that case the onus is shifted, and the party offering the will is bound to show that it was executed at a lucid interval. 2. That the time of the exe- cution of the will is the material period to which the court must look, to ascertain the state of mind of the testator ; that although it is competent evidence to show the testator's mind at anytime previous or subsequent to the execution of the will, yet such proof is always liable to be overcome if it be satisfactorily shown that the testator, at the time ho executed the writing, had the possession of his faculties. 3. That of all the witnesses the tes- tamentary witnesses, and their opinions, and the facts they state as occurring at the time, are to be particularly regarded by the court. They are placed around the testator for the very purpose of attesting, after his death, to the circumstances under which BO solemn an instrument is executed. 4. That the opinions of 12 PREROGATIVE COURT, Whitenack v. S rvker aud Voorhies. witnesses other than the testamentary witnesses, as to the capacity of the testator, are to be received as the slightest kind of evi- dence, except so far as those opinions are based on facts and oc- currences which are detailed before the court. It is most evident, that if the mere opinion of a witness as to the testator's capacity was to prevail, it would become necessary for the court to become acquainted with the witnesses themselves ; for while the view of such a question which a man of strong clear mind and know- ledge might take, would be very important, that of another of a different character would have very little weight. Besides, it will be found that eveiy witness has a standard of capacity of his own, and he judges all cases by that rule. "Witnesses are to State the facts, and it is the business of the court from those facts to pronounce the opinion, upon settled rules and guides, whether the testator is competent or not. And 5. That old age, failure of memory, and even drunkenness, do not of themselves necessa- rily take away a testator's capacity. He may be ever so aged, very infirm in body, and in habits of intemperance, and yet in the eye of the law possess that sound mind necessary to a dispo- sition of his estate. These principles will be found to be fully supported, and moro at large, in the following cases : 4 Washington dr. Ct. J2e- pwte, 262, 9 ; 11 Vesey, 11 ; 5 Cond. Ecdes. Rep. 411 ; 1 IUd y 47 ; 2 Ibid, 371 ; 1 Swinb. 122 ; 5 John. Ch. 158-9 ; 2 Phil- lips on Evidence, 191 ; 8 Mass. 371. Holding myself bound by these rules, and which must ap- prove themselves to the judgment of every man, I come to consider the main question in the cause : "Was the testator, at the time lie executed the two codicils in question, of sound and dis- posing mind and memory ? The iirst witness whose evidence I shall consider, is Nicholas Williamson. He is a witness to both the codicils, and a neighbor of the testator. He says the testator executed the first and second codicils in his presence, and in the presence of the other subscri- bing witnesses; that he frequently called to sec the testator as a neighbor, and never perceived his mind failed him. He cannot JANUARY TERM, 1838. 13 Whitenack v. Stryker and Voorhies. say whether ho was sent for, or came in accidently at the time of executing the first codicil. The testator informed him that he had been to Somerville and consulted governor Yroom about making a codicil to his will, and not having the will with him, the governor told him that he would write a codicil and send him. lie handed to witness the copy of the codicil which the governor had drawn, and requested him to draw one according to that form, which he did at once, and having first read it to the testator asked him if it was right, and he said it was. He said the governor told him if there was room enough on the will, he might write the codicil on it, if not it might be written on a sep- arate paper and annexed to it. The testator explained to him his redfcons for making this first codicil. One of his executors was dead, and another he wished changed. He wanted Henry JWhitenack in the place of judge Stryker. He said judge Stryker had not used him well ; that he had requested the judge to do some business for him which he had not done, and further that he had not paid that respect to him which he thought was due him. Tho witness says ho had considerable conversation with testator on that occasion ; he seemed impressed that if judge Stry- ker was continued executor, things would not work well with his estate. They talked about the revolutionary war. Testator told him that when the enemy were at Brunswick he acted as pilot to scouting parties ; that the enemy found it out, and he dare not stay at home at night. lie says he expressed himself rationally. "Witness says testator was as sane as when they were young men together. He appeared to understand perfectly the situation and circumstances of his family, and the disposition of his property. Testator wrote his own name to the first codicil, and pub- lished and declared the same as his 'codicil. Witness tliinks Mr. Baird came for him when second codicil was executed. That testator, about a week before, had told witness he meant to alter his will as it is altered in the second codicil ; that lie meant to have it done by a lawyer, as it was important to his family. Ho then stated his reasons ; that he had an estate lie had worked hard for, and he could not bear to sec it squandered in the way 14 PREROGATIVE COURT, Whitonack v. Stryker and Voorhies. he saw it was going by his sons-in-law. That the way they were going on, they would spend all in a short time. He wished his daughters to have a living, and his estate to go to his grand- children in remembrance of what he had done. He dwelt on the idea that his sons-in-law wanted to make him out an idiot. Testator evinced no want of understanding. Said^e had been advised to cut off his sons-in-law, but he would not. They were all his children. The sons-in-law had used him ill, but he want- ed to distribute his property equally among his children. At the time of executing the second codicil, witness says testator repeat- ed the same things. At the execution of the second codicil, it was read to testator by the witness, and he was asked if it was as he wanted, and he said it was. Testator then signed. At that time witness says testator had his reason as well as ever, or he should never have witnessed the codicil. There was conside- rable conversation. Witness knew testator near fifty years, and lived within a mile of him for thirty years immediately preceding his death. He went to see him often ; for the last eight or ten years, every three or four months. Testator was poor in bodily health for the last years of his life ; was subject to the asthma. He was close in money matters. Witness drew leases of lands for testator every winter down to the one preceding his death. He dictated the terms very accurately ; he did so to the last. He was a man who could see a great many faults in others. The witness took charge of the will and codicils at request of testator. He said he lived among strangers. Witness always considered testator as competent to transact his worldly business. The next witness is Albert Saums ; who states, that he saw testator execute the first codicil ; that it was done in his presence, and in that of the other subscribing witnesses, and at the timo it purports to have been executed. The three witnesses were pre- sent at the time. He was asked by Mr. Williamson (the last vitness) to witness the will. The testator said that one of his exe- cutors would not do business^ or him when bo was alive. Witness vas there about half an hour. Testator published and pronoun- ced the writing to bo his codicil. Witness says he worked on the JANUARY TEftH, 1838. 15 Whitt-nuck T. Strykcr and Voorhu 8. la-m where testator lived. Testator would walk round and talk wiLli him often. The first codicil was executed the first season witness worked there. Testator talked about ordinary matters, a id appeared to have his reason. Mr. Williamson read codicil to testator. Witness would have been willing to transact any business with testator. On one occasion he set witness right in regard to placing a beam in the cider house, and gave his reasons for it. Witness worked there two seasons, and the first codicil was made about a week after he first came there. Testator was careful to prevent waste on the place. Testator was close in his dealings. lie has known him twelve or fifteen years. Witness cannot say he ever thought the old man's mind failed him. At the time of executing the first codicil testator was as well as usual, walking about the room. These are the only witnesses examined to the first codicil. They are both agreed in their testimony, and clear as to capaci- ty. They state many facts, and give a rational account of tho manner of its execution. The third witness, Carney llynear- Bon, was not produced as a witness, and by the papers no reason is assigned for his not being produced, though something was Slid on that subject by counsel on tho argument. . It was insist- ed by the caveators that this codicil could not be proved without the production of all the witnesses. I cannot think it indispen- sable to produce all the witnesses, provided those produced make out a due and legal execution of the will. It would certainly have been open to the caveators to have produced him, could they have varied the case by so doing. It was also contended, that the witnesses must attest tho will at tho request of the testa- tor. This is certainly time ; but it is not necessary to make out that request, that the testator should openly make the request. If it be done by his cheerful acquiesencc when tho witnesses arc called in for that purpose, as in this case, by the friend of tho testator, who had first completed the writing, and was himself a witness, it is sufficient. John Atkinson is a witness with Nicholas Williamson (\vho?e evidence has already been considered) to the second codicil. Ho 16 PREROGATIVE COURT, Whitenaek v. Stryker and Vocrbies. states that it was executed in his presence, and that of the othci subscribing witnesses, at the time it bears date. Joseph, the tes- tator's son, came for him. Testator was laboring at tho timo under a fit of the asthma. Mr. "Williamson read paper to testa- tor. "Witness lived, for twenty last years, within a quarter of a mile of testator, and has known him thirty-five years. Has been in the habit of seeing and talking with him often. Testa- tor, at the tune this codicil was executed, was asked if lie want- ed to hear the original will read ; he said yes, and it was road to him. When the codicil was read to him, Mr. "Williamson ask- ed him if it was all correct as he wished it, and he said it was. Before witness attested the paper, he asked testator his reason for making the change. He said his sons-in-law were spending his property, and he wished his daughters and grand-children to have some benefit from it. "Witness talked no further at that time with testator, 1^ut he appeared to him to understand what he was about. There was a codicil presented to testator a few days before, but he refused to sign it, saying it was not right. This was the one brought by Mr. Vroom. Testator always ap- peared to understand his affairs. Witness staid with testator sometimes all night. Considered him capable of making bar- gains, and always understood his own interest. Cornelius M'Colm. This is the third witness to second codi- cil. This witness sustains the other witnesses as to the execu- tion of this codicil. lie was called there by Joseph, but Joseph did not remain in the room at the time of the execution. He was there about half an hour. Has known testator thirty years, having lived all that time about one and a half miles from him. Says ho has been afflicted at times, as long as he has known him, with the asthma. At intervals he would be quite smart. Witness considers testator, at the time of executing this codi- cil, as capable of making a will and disposing of his property as lie ever was. The witness stated a number of families Joseph must have passed by in coming for the witness, living between his house and testator's. These are tho subscribing witnesses to the second codicil with JANUARY TERM, 1838. 17 Whitenack v. Stryker and Voorbies. Nicholas "Williamson. They all agree in the main facts in the manner of the execution, and in the capacity of the testator. They are neighbors, familiar with him and his ways of thinking and acting. It is very rare that you will find witnesses corrobo- rating each other more fully in every particular, than those to these two codicils. In further support of the two codicils, Benjamin Young is pro- diiced as a witness. He says he knew the testator eleven years ; saw him and had frequent conversations with him the last four years of his life sometimes once or twice a week. When he talked with him, lie appeared to have his mind. This witness gives a particular account of borrowing money of testator, and all that passed in July, 1835, showing a complete understanding in him of the whole business, and of the different standing of banks. He speaks of his son renting a farm of testator, and many things that were said at the time, and the conversation about the terms that took place. This was in the spring of 1834.. That testator gave directions how the farm should be worked. That he insisted on it as the best plan in making fence, to have the bark on the rails. He relates a conversation between testator and Urias Stryker, his son-in-law, in which they disputed about the loan of money. He says his son-in-law, on that occasion, called the testator, for not letting him have more money, a liar,, and a damned liar. He speaks confidently of testator's capacity,, and says he never discovered that testator's mind failed him. . The witness states that the conversation took place about the money, whan Urias Stryker abused testator, in prescnca of John Huff, John Miner, and others, in the evening, at the testa-- tor's house. He further states, that ho since spoke to Mr. Miner about that conversation, and he remembered it. He further states, that he waa at testator's funeral, and that Mrs. Yoorhies,. the testator's daughter, made an attempt to burn the will, and Urias Striker said, burn it up ; but it was finally rescued by Mrs. Henry Whitenack. Nothing could be more confirmatory of the testator's capacity than the whole of this witness's testimony. It is very particu- 18 PREROGATIVE COURT, Whitenack v. . tryker and Voorhies. Jar, relates to a great many circumstances, and such as go, to show a full understanding in the testator in relation to business transactions. But his testimony is impeached by the caveators on the ground that Miner and Huff, two of the persons stated by him to have been present at the time that Urias Striker is said to have called the testator a liar, deny that they >were present. They certainly do deny being present at any such conversation, and the caveators are entitled to all the benefit arising from this contradiction. They claim, however, that his whole evidence should be disregarded, because in this particular he has clearly stated what is disproved. I cannot think this would be just. While it certainly does take from that reliance which you would place on an accurate witness, yet it is not an impossible thing that the most honest man might speak truly of any particular transaction, and yet be utterly mistaken, from want of recollec- tion, as to the persons present at the time. If a witness was corrupt, it is hardly to be supposed he would expose himself by naming persons as present at any particular transaction, whon he knew they were at hand and might be called as witnesses to contradict him. James "W. Todd is also called to state from memory some discrepancies in the evidence of this witness in this cause and when he was sworn on the first inquisition, which had taken place sometime previously ; yet they will be found not to IK) on very material points. On the whole, I cannot discard this testimony, but am disposed to receive it with all that just allow- ance which the contradictions made to it are fairly entitled to. Samuel B. TJpdyke, another witness in support of the will, speaks of being present at the loaning of fifteen hundred dollars by the testator, in which he spoke of the security he must have, preferring personal security to bonds and mortgages, as they were taxed ; but as this witness states no time when this took place, much of its force is lost. Samuel Saums, another witness, says he has known the tes- ' V tator for twenty years, and has lived within three-quarters of a mile from him. He occupied testator's distillery. This witness relates some conversations of ordinary character that he had f . om JANUARY TERM, 1838. 19 Whitennck v. Stryker and Voorhies. lime to time, showing mind in the testator, and some of them in the year 1833. He fully corroborates the evidence of Benja- min Young as to what took place at the testator's funeral, in the attempt to burn the will, by Mrs. Voorhies. Abraham D. Baird testifies, that he has lived within a mile of testator for the last sixteen years, and during the last six years of his life had frequent conversations with him. Says testator was a singular sort of man. In 1832 he paid off a note to testator, who counted the money as accurately as any body. Has heard him speak of his family with tenderness. He considers testator competant to make a will, except under very severe spells of the astlima. This witness also speaks of the occurrence at the fune- ral, in the attempt to burn the wilL He was present at the time the second codicil was written, and said it was not right, and he . would not have it put to his wilL He said he meant to have an additional codicil, and gave as a reason that if his sons-in-law spent money as they did in his life-time, what would they do when he was dead. William Gray testifies, that in 1835 he lived in the house with testator, and had conversations with testator, though not a great deal. He lived there eight months, and saw him two or three times a day. This witness never considered him a man without his reason. George A. Vroom testifies, that he saw testator four or five times after the first inquisition, and conversed with him each time. He drew the second codicil. On the 8th of August, 1835, he went to testator's and got his instructions for drawing it. When he came in he asked testator if he knew him. He said he did not. When he mentioned his name, he asked him if he was a nephew of old colonel Yroom. Witness said he was his grr.nd- son. Testator said he knew colonel Yroom very well. He then talked about altering his will. Said he wished to fix it so that lu's grand-children could have an equal share of their mothers' property. Testator gave him instructions for drawing the codicil. Said he wished his property out of the hands of his sons-in-law. Witness asked testator if he had any money out at Somervillc. 20 PREROGAT1YE COURT, Whitenack v. Stryker and Voorhies. He said yes, with Mr. Mann. "Witness then asked him if -Mr. Gore had not the money. He said yes, and Mann was the sure- ty. He talked to him about his pension money, and asked if ho should like to have some of it. He said he was like a blind man, he would rather see than hear tefi of it. He was there near an hour, and talked with him on various subjects. ' The next day he returned with the codicil, and was reading it to him, when testator stopped him, and said it was not according to his direc- tion. "Witness says he then recollected it was not drawn accord- ing to his direction. He took it away, and drew it over, and sent it to him. "Witness has no doubt of testator's competency. Jo- seph was not in the room : he came for him. He took him fifty dollars in gold, which he requested witness to keep for him. This closes the testimony in support of the codicils, and a stronger case, standing by itself, I confess can hardly be made. All the testamentary witnesses (five in number) that have been examined, concurring in testator's capacity at the time, sustained by so many others who were his neighbors, and relating facts showing a rational mind, and those witnesses unimpeached ex- cept as to Benjamin Young. I now proceed to examine the evidence in opposition to the codicils. There has been a mass of evidence taken, of which I shall feel bound to notice here only so much as bears on the ques- tion of capacity. The first witness is James D. Stryker. This gentleman drew the original will in 1830, and was named one of the executors. He is very clear as to testator's capacity at that time. He uses this strong language : " I don't think that I entertained the least doubt of his testamentary capacity at the time the will was executed." He says he complained much about his children, which was a habit with him. The testator's difficulty scorned to be to reconcile matters between his two sons. Sometime after writing the will, the witness went to take testator's examination upon an application for a pension. Then his memory, he says, appeared to be entirely gone. He complained of his want of memory. He thinks then he was not capable of doing business JANUARY TERM, 1838. 21 ' Whitenack v. Strykcr a d Voorbi s. from want of mind and memory together. This was in 1832. lie could not recollect the name of any officer under whom he served. On further examination, witness says, testator did not show any incapacity except what arose from want of memo- ry. Abraham went for witness to write the will. It is most manifest, that this witness places himself mainly on want of memory in the testator ; for by the very conversation he had with him, his complaining of his want of memory, all prove he had reason and understanding. In fact, the witness expressly says, the incapacity he speaks of arose from want of memory. This witness, it seems, at the very time of which he speaks, must have administered the oaths to him on his application for a. pension. lie speaks of " taking his examination." Would a witness of the high character of this gentleman, administer 101 oath to a man not understanding the subject ? I have too high an opinion of his character to entertain any such belief. Besides, this very witness, on the first day of February, 1834, writes a letter to testator, which is made an exliibit in this cause, treating him as a man of understanding and capacity. Would he write such a letter to one without his reason ? I think not. In fact, the witness in his examination says, that when he went to 1 testa- tor's to transact the business stated in that letter, the testator un- derstood well enough what he was about. Mrs. Catharine Van Arsdale. This lady relates many strange occurrences during the period of Abraham's (testator's son's) sick- ness. That he would get up in the night, come to witness's bed, sometimes two or three times of a night, and say the millennium had come. That the devil had him chained to the floor and was heaping hay on him. That the world was on fire. Seemed dis- tressed and alarmed. He talked about witches. That Ann (his daughter-in-law) was a witch, and had come in through a small place in the window. That it rained fire and brimstone. He said there was a dreadful noise, and bid her listen : she did so, ' and there was no noise. She further states, that she was at tes- tator's after the will had been sent for from judge Stryker's. Tes- tator told her, Joseph had sent old Nicholas Williamson to judge 22 PKEKOGATIVE COURT, Whitenack v. Stryker and Voorhies. Stryker for the will, and had brought Atkinson along with him* Testator frequently spoke about dividing his property equally among his children. This witness considers the testator as fail- ing since 1823. Says he would tell over the same story again. That he never went to bed in twenty years, but slept out of bed owing to his disease. After 1823 thinks him unfit to do busi- ness. She says he had understanding enough to-know he waa not fit to do business. Sometimes he seemed to understand his own interest and duties, and then appeared deranged. He would say every thing was dying off, he was afraid his cattle would die off. Testator was worried about Abraham's sickness : he sat by Lim most of the time : was company for him. She says she would not call her uncle (the testator) a crazy man; she would call him a feeble man. Testator's children quarrelled among themselves. They sometimes had rough conversation with their father. She gives it as her opinion that testator was not able to make a will since 1820. The impression is very clear from the evidence of this witness, that at times the testator's mind was out of order, wholly unfit to transact business. Nothing could more fully show it, than some of his conduct as related by this witness. His feeble health, old age, the dreadful disease with which he was afilicted, and his immediate affliction in the sickness and death of his son Abraham, with whom he lived, seemed to overpower his facul- ties, and for a time, it is most manifest, prostrated liis reason. I cannot think this is shown by this witness to have been any thirg more than temporary. It is quite obvious, that the opinions of this witness are quite too sanguine. She considers testator in- competent to make a will, or do any business, for ten years be- fore the will of 1830, and yet that will lias been sustained, ac- quiesced in by all parties, and upon clear testimony. Mary Saums speaks of testator in 1834. Sometimes he ap- peared more rational than at others. Ho said it was no use for him to cat any more : that ho should not live above a day or two. lie after this ate very heartily. He stated as a reason why ho should die, that he was very dry. JAmTAKY TEEM, 1838. 23 Whitenack v. Stryker and Voorhies. The whole amount of this evidence would go to prove a wan- dering mind in the testator at times, and yet again, according to the whole account, he would talk rationally. He spoke sensibly of the death of Mr. Yoorest that old men, if they took to drink were soon taken off. Joseph Whitenack says, Joseph told him he meant to get judge Stryker out of the will. Testator is represented as a man in the habit of running down his children, and complaning of their spending money. This witness is unwilling, clearly, to say whether in his opinion testator was competent in .1831, 1832 and 1833, to transact business. He says it's a hard question. He should not hardly think him competent. He was forgetful ; sometimes he appeared rational, and then he would forget Ho places his objection on the ground of his forgetfulness. In his best days he says testator had a curious way with him. The whole of this witness's testimony is rather equivocal as to his opinion about testator's capacity. He either really doubts himself, or is unwilling to be committed on the subject Henry V. Staats says, he has lived since 1822 within a quar- ter of a mile of testator. The first he observed the old man's mind to fail was in 1830, or the fall before. From 1829 to 1834 did not think him competent to make a will disposing of his ex- tensive property. At Abraham's sickness his mind was gone. He would come out of the house with a night-cap and apron on, and this was one reason he thought him incompetent. He would say his children cursed him. He thinks the old man knew what property he had, but did not know the value of it. He valued it too low. This witness never had dealings with testator, nor was present when he dealt with others after 1830. Henry llnrder had known testator forty years, Spaaks of seeing him once, but at what time ho does not say, at Kelly's mills, when he said his family used him ill, and said he had ruin- ed them all. "Witness thought ho had failed, but not altogether lost his reason. He appeared to have "lost liis resolution, Xho old man, on another occasion, appeared to by TUider a delusion, 2-1- PREROGATIVE COURT, Whitenack v, Strykerand Voorhies. that all was going to destruction. He did not think him compe- tent to make a will after lie returned into the neighborhood. His mind was more deranged by spells. He talked to witness about the Jews being God's chosen people : now, he said, the Metho- dists were. He wished he had died some years ago, and gave as a reason, he would not have so many sins to answer for. Ho would sometimes talk rationally. He had strange imaginations. He always knew the witness. Since 1830 does not think him competent to make a will. This witness believes testator under- stood the relation in which the different members of his family stood to him, and to each other. Spoke of once drawing him out of the mud with his team. This witness very clearly shows a wandering at times in tes- tator's mind. He mentioned many facts. At Abraham's death he says he did not appear to be himself. Abraham J. Yan Doren knew testator thirty-five years. In 1833, being the assessor, he called on testator for his property to assess, and he said he had none. His evidence is confined prin- cipally to one fact. I understand, from the whole case, that the old man had before this put out his property, and that his sons and sons-in-law occupied it. He meant they should pay the taxes. I cannot think this evidence bears on the case as much as counsel seemed to suppose. The testator evidently meant to get clear of the tax if he could. "William "W. Hall speaks of sitting up four or five nights with testator in 1832 or 1833. He talked about his property. That he wished each to have an equal share. Said he was not com- fortable, and asked him if he could not get some aged woman to come and take care of him. The whole conversation of this witness, as related by him, instead of making against the testator's capacity, in my opinion makes directly in its favor. It seems rational, and just such as a man circumstanced as testator was, would make. John Huff knew testator for thirty years, and lived within three quarters of a mile from him. He complained of his chil- dren, that they did not do well. Said his property would be JANUARY TERM, 1838. 25 Wbitenack v. Stryker an 1 Voorhies. gone in four years. Says he spoke of his boys in a manner they did not deserve. lie ascribed much of his conversation to imagina- tion. Has heard him say he meant to do as well by one child as another. From 1830 till his death he did not consider him com- petent to make a will. Abraham died in 1831 or 1832. Has not seen testator so often since that event, but frequently before that. Believes he knew his farms and the property he owned, and for a part of the time apprehended justly the relationship existing between the different members of his family. The rea- son of the witness for thinking testator incompetent was his affliction in body and mind. He seemed to have no mind of his own ; he was childish. He says he believes he understood his own interest. It is very evident that this witness believed testator incompe- tent to make a will ; but his reasons for that opinion are based on no very satisfactory foundation, so far as they are stated in his evidence. Abraham Quick speaks of his being at testator's in 1832, during Abraham's sickness. He then complained that every thing was going wrong. He refers to some papers respecting a road, which he requested him to take charge of. This witness says, " I don't pretend to say that the old man was or was not capable of disposing of and managing liis property." Jacob R. Schenck. This witness is much relied on by the caveators. He relates a conversation with testator during Abra- ham's sickness, from wkich he inferred his mind had failed him. He said that he was exhausted from old age. That he held but little conversation with him, for the reason that he considered him incapable of holding one. Says testator talked much about his property being spent, and complained of the extravagance of his son's wife. He says he never saw him commit any ridicu- lous or extravagant action. His test, he says, of testator, was pretty much confined to one conversation ; lie made up his mind from what he then saw and heard. This witness evidently made up his mind at once against tes- tator's capacity, and after that gavo himself no further thought 26 PREROGATIVE COURT "Whitenack v. SLryker and Voorhies. about it. He speaks of linn as miserly in his disposition. The time of Abraham's sickness, it would seem from all the evidence, was the worst period with the testator, and this is the time to which this witness refers. William T. Davis made shoes for the family. Latterly he observed testator was not as rational as formerly. From being a politician he turned to complaining of his family. In 1833, the old man was quite childish by spells. Talked strange. He re- lates a course of conversation at this time, clearly showing that his mind wandered. He spoke of Prime as the proprietor of the farm. He fretted about every thing going wrong : called the stills balloons, and said they were building castles in the air. At times, he says, he would talk quite rational. From 1832 till his death, he would not think him capable of doing any business of importance. He does not think that testator was crazy, but that his health and age and family affairs had destroyed his mind. He knew his farms, and where they lay, and complain- ed that Joseph could not make a living off the farm he was on. He thinks he knew the nature of the relationship between the different members of his family. He would answer questions sometimes correctly, and sometimes not. No evidence more clearly than this, shows that testator was very different in the state of his mind at different times. There are several other witnesses on the part of the caveators, but they are by no means as full or circumstantial as the above, nor do I perceive that they at all vary the general complexion of the case. They establish, beyond all doubt, from the year 1830, periods when the testator's mind, from the tenor of his conver- sation, was wandering, and at other times rational. After the most careful examination of all the evidence on the part of the caveators, I can come to no other conclusion, than that the testator was, during the last years of his life, from 1830, at times affected in his mind ; and I am equally clear, from the same evidence, that during the same time he had lucid intervals. Many of the witnesses speak of his talking at times rationally, and for an hour together : that he was in an especial manner JANUARY TERM, 1838. 27 Wbitenack v. Stryker and Voorhies. affected at the time of Abraham's death. The general charac- ter of the testator seems to have been, an inordinate attachment to property a love of money. This led him to complain, as he left active life, that his sons, and all around him, mismanaged ; and his great fear seemed to be that they would all come to want. Taking this view of the evidence on the part of the caveators, in connexion with the very decided character of that on the part of the executors, I can bring my mind to no other conclusion, than that the weight of evidence is in favor of the capacity of the testator at the tunes he executed the first and second codicils. No witness meets the direct proof of capacity at the tune, except it be by general opinion. Another ground was taken by the counsel for the caveators ; that the testator made these codicils under an improper influence. I can see no just ground in the evidence, for this charge. It is lawful, and every way proper, for a son to advise with, and in- fluence by fair argument and reason, a father. It is natural that they should have more or less influence with liim. I cannot see any threats made by the sons towards the father, to induce the making of these codicils. Joseph and Abraham both went, at different times, after persons to write the papers, but I observe they did not even remain in the room at the times they were dic- tated or executed. Tf the testator had been unfit to dispose of ihis property, or do any business, as some of the witnesses sup- pose, how is it possible he could have dictated these wills ? And would these sons, if they had had the entire control of him, have eft him at the very moment when it was most essential for them o be present ? I should be very far from supposing the testator, .o be a man likely to be controlled. I should, from the evidence, rather suppose ho was obstinate and self-willed. At all events, there is no sufficient evidence to sustain the ground of improper influence. . From looking into the will and codicils themselves, there seems to bo no great motive for the sons to have used thb influence to obtain the provisions made by the two codicils. The great ob- 28 PREROGATIVE COURT, '\Yhitenack v. btryker and Voorhi-S. ject of one was, to change the executors, and of the other, to place the property for the daughters in tnipt. They gained no- thing themselves worthy of making use of such extraordinary and fraudulent means. Neither do I see any thing on the face of these papers improper or unreasonable. They carry the im- press of a rational, just and fair man. In the view which I have thus taken of this case, I am met by two inquisitions which have been taken in reference to this very testator, on commissions issued out of the court of chancery, one bearing date the 80th day of May, 1834, and the other the 1st day of January, 1836. By the first, the testator was found at the time of taking the same, a lunatic enjoying lucid inter- vals, and that he had been so for thirty months prior thereto. By the second, the testator was found to be of unsound mind, and mentally incapable of managing his affairs, and that he had been of unsound mind since December, 1832. Thess inquisi- tions are not pretended to be conclusive on the case ; but it is claimed for them, that they are entitled to all that respect which is due to the opinions, thus expressed, of so large a number of the most respectable citizens of the county of Somerset. This is perfectly correct. They are entitled to all the respect which any men acting on the subject before them, could possibly have. Some of the jurors I know, and I respect no men among us more. Their business and mine is very different. They have decided, from the general character of the testator, that he was incompetent to manage his business ; it is my duty to decide whether, at the times he executed two instruments of writing, he was of sound mind. "With the first inquisition I am fully agreed. That affirms that the testator had lucid intervals. In truth, it is not quite certain that the jurors on the last inquisition would have been willing, from a view of the whole evidence, to have said the testator had no lucid intervals. I should have very little doubt that these very jurors would, one and all, upon this evidence, agree with me, that this testator was, at times, disor- dered in his mind during the last years of his life, and at tunes psrfcctly rational. JANUARY TERM, 1838. 29 Wiiitenack v. Stryker and Voorhies. It would have given me much pleasure, could I have agreed v/ith the judges of the orphan's court who decided this cause. It is a case not without its difficulties, and while I know those gentlemen fully discharged their consciences in the decision they made, it is my duty now to see that -I acquit mine. I therefore reverse the judgment of the orphan's court of the county of Somerset, so far as it rejects the first and second codi- cils, and direct probate of the same to be made ; and affirm it, so far as it directs the costs to be paid out of the testator's es- tate. Considering this a case of some doubt, and well worthy of receiving a full investigation and decision, I direct the costs of tliis appeal, with reasonable counsel fees on the hearing before this court, to be taxed by the clerk, to be paid out of the tes- tator's estate. CITED in Vananker., Matter of, 2 StarTc, 192; Hunt v. Hunt, 2 Sear, 163; Tangcr r. Skinner, 1 KeCart. 335 ; Turner v. Cbecnemann, 2 McCart. 45. CASES ADJUDGED IS THE COURT OF CHANCERY OP TEE STATE OF NEW-JERSEY. APBIL TEEM, 1838. ANDREW SHOWBILL and others, heirs at law of JAMES E. SNOWHILL, deceased, v. The sarvmng Executor of KEBEO OA SNOWHILL, deceased. Where an act of the legislature authorizes a gnardian to make sale of the real estate of his ward and directs the proceeds out of the Bale to be put at Interest for the benefit of the ward, without making any provision for thu disposition of the fund in the event of the infant's death ; upon the death of the infant, intestate, the proceeds of such sale will go to his heirs at law; pursuant to the statute regulating the descent of real estate, and not to his next of kin. This court will give to a decision of the court of appeals made in the fame cause, its fair and just legal effect. Where a decree of the chancellor, allowing a general demurrer is reversed in the court of appeals, and the demurrer overruled, the court of appeals should direct the r cord and proceedings in the cause to be remitted to the court of chancery. Where the real estate of an infant is sold by the guardian, (by virtue of an act of the legislature,) the guardian, or her representatives, may retain BO much of the money arising from the sale, to satisfy a claim of the guardian in her own right, ns the land would have been liable for in case it had no; been sold. The chosea in action of the wife, survive to her on the death of her husband, unions he reduce th( m into possessions during his life. What will constitute a reducing of a chose in action of the wife into posses, sion, BO us to deprive her of the claim as survivor? Qu, APRIL TEilM, 1838. Siiowhill ct al. v. Executor of Snowhill. A legacy to a married woman is a chose in action, and governed by the same rule (as to survivorship) as all other choses in action. THE facts of the case fully appear in the opinion of the chancellor. , for complainants. I. H. Williamson and Watt, contra. The land of the infant having been sold by virtue of an act of the legislature, and converted into money, must be considered as personal property, and go to the next of kin. There is no equity between the heirs and the personal representatives : they must take the property as they find it. 3 Brown's Ch. Hep. 515 ; SVesey, 303. The court of chancery may direct the land of an infant to be converted into money, or money into land, for the benefit of the ward. The legislature may exercise the same power ; and where the conversion is made by lawful authority, there is no equity between the heir and the personal representative. 2 Ves.jun. 77 ; 3 John. Ch. Rep. 347, 370 ; 3 Brown, 510. And where the property is changed by the act of God, the heirs and personal representatives must take the property as they find it ; so where the conversion is by the wrongful act of a stranger, not a breach of trust. 3 Dessaus. 21 ; 1 Ves. jun. 4GO. It is only in cases of breach of trust by the guardian or trus- tee, and where the property is converted by him without lawful authority, that the court will consider money turned into land, as money, and e converso. 1 Vemon, 435 ; Ambler, 706, 419 ; 1 Fonb. 82, note B.; 2 Eden 1 8 Rep. 148, 154, note; 3 P. W. 99, 101. The land of James E. Snowhill having been sold by the guardian, by virtue of an act of the legislature, and converted into money, must go to the next of kin. This question is still open before this court, notwithstanding the decision of the court of appeals. That court merely over- 32 CASES IN CHANCERY, . Suowhill et nl. v. Executor of Snowhill. ruled the demurrer. At law the decision would have been final, but in this court the party may set up the same matter in his answer. A new case is presented by the answers of the defendants, different from that decided by the court of appeals. Rebecca Snowhill, the guardian, is entitled to have her legacy bequeathed by her father, paid out of the real estate of the infant. George Snowhill never reduced tne legacy into possession : it survives, therefore, to his wife, and her personal representatives are entitled to it. The giving of a legacy to a debtor's wife, does not discharge the debt. A legacy may satisfy a creditor's claim, but can never cancel a debt due to the testator. Clancy on the Rights of Women, 2, 3, 4, 101, 111 ; 3 Ves. jun. 469 ; 9 Ves. 98-9. A legacy to a married woman is a chose in action, and rests on the same principle. Law Library, No. Dec. 1S37 ; Ward on Legacies, 33; 11 Viner, 377, sec. 8; 2 Dickens, 491; Clancy, 109. It is necessary that the husband should do some act to reduce the legacy into possession, or it will survive to the wife. 9 Ves. 173; 12 Ves. 49G; 16 Ves. 413 ; 2 Madd. 133; 5 Ves. 514; 2 Green's Rep. 516, 262; 2 Kent's Com. 137-8. The land descended from George Snowhill to his son James, charged with the debt due to the estate of Matthias Mount. Had the land remained unsold, the legatee would have been entitled to her legacy. The heirs at law claim the money as land; they must take it subject to the incumbrance. The sale under the act did not affect creditors. Mrs. Snowhill, the legatee, was ignorant of her rights. This court will relieve against her mistake. 1 Cond. Eng. Chan. Rep. 541, 283; 1 P. W. 354; Mosely, 364; 3 Swanston, 186. Her representatives may retain the amount of the legacy out of the money in their hands, not as an offset. 2 P. W. 128, 298; 4 Vcs. 763; 5 Madd. 28 APRIL TERM, 1838. 33 Snowhill et al. v. Executor of SnowhilL E. Van Arsdale, in reply. The question as to the right of the heirs over the personal rep- resentatives to receive the proceeds of the sale of the land, has been settled by the court of Appeals. This court must give eff ect to the decision of the higher tribunal. It is the constant practice of the court of chancery, to preserve the rights of inheritance on the sale of an infant's property. 11 Ves. 278 ; 2 Story's E%. 585 ; 6 Ves. 6, 7. The legacy to Rebecca Snowhill was virtually reduced into possession by her husband, and did not survive to the wife. He owed the estate, the legacy was in his hands, and he had a right to retain it. Vesey, 101. TUB CHANCELLOR. George Snowhill died in the year 1824, intestate, seized in fee of one undivided half part of a tract of land in the county of Middlesex ; leaving a widow, Rebecca Snowhill and one child, a son, James E. Snowhill, his sole heir at law, an infant of tender years. The legislature of New-Jersey, on the petition of Rebecca Snowhill, who had been appointed guardian of her son James, on the 15th of December, 1826, passed an act authorizing the said Rebecca Snowhill to sell the said lands belonging to her son, and which descended to him as heir at law of his father ; and directed the proceeds of such sale, after de- ducting the expenses incident thereto, to be put at interest ; one third part of such interest to be paid to Rebecca Snowhill, as the widow of George Snowhill, and the remaining two thirds for the use of the said James E. Snowhill. This act made no provision for disposing of the fund arising from this sale, in the event of James E. Snowhill's death, but left ah 1 parties to their rights at law and in equity. On the 3d day of April, 1827, Rebecca Snowhill conveyed the aforesaid lands, upon a sale made under said act, to John II. Disborough, for three thousand five hundred dollars, and took a bond and mortgage upon the same lands as security for the purchase money. After the passing of this act, and after the sale made under it, James E. Snowhill died, intes- tate. The complainants, as the heirs at law of the said James 34 CASES IN CHANCERY, Snowhill et al. v. Executor of Snowhill. E. Snowhill, after his death, filed their bill in this cause, against Rebecca Snowhill and John II. Disborough, in their lifetimes, claiming the money arising from this sale, and setting out the case as here stated. To this bill, the defendants severally filed a general demurrer, denying the equity of the complainants' bill. These demurrers were argued before chancellor Yroomj who sustained the demur- rers, and directed the bill to be dismissed. From this decision the complainants appealed to the court of appeals ; which court, after argument, reversed the chancellor's opinion, directed the demurrers to be overruled, and remitted the record and proceed- ings in the cause to this court, to be proceeded in according to law, and the practice of the court. I am very clear as to my duty under this decision. I must give to it, without any reference to my own judgment, its fair and just legal effect. It is a decision, in the same cause, of a court of the highest authority in the state. In fact, I should not think it proper to express an opinion on the subject, considering this part of the case as already settled. Can there be any doubt as to the legal effect of that decision ? The facts stated by tho bill, are admitted by tho demurrer. The plain question upon the bill and demurrer was, whether the heirs at law of James E. Snowhill, upon the case 'made by the bill, were entitled to the money arising from the sale of his lands. The decision estab- lished that right. Had no new question been made by the an- swers, I should have done nothing more with the cause, than to have made a reference to ascertain the amount of the money in the hands of Rebecca Snowhill, to the end that a final decree might have been made, directing the same to be paid over to tho complainants. As to form, the decree of tho court of appeals was strictly correct. That court could not with propriety, upon a general demurrer, have done any thing else than send back the cause. They did not mean to conclude the parties from setting up in tbcir answer any new ground of defence they might have. Any new (matter, therefore, which is disclosed by the defendant's an- APRIL TERM, 1833. C5 Suowaill et al. v. Executor of Snowhi'.l. swer, and not set out in the bill, is fairly before the court, and must now be settled. On the argument, I allowed counsel to go into the whole case, not because I had any hesitation as to the plain path of my duty on this part of the subject, but be- cause, at the breaking of the cause, I could not foresee what bearing it might have on the new matter set up by the answer. Pending the proceedings thus far, Rebecca Snowhill died, and the answer is filed by "William "W. Conoyer and Charles G. M ? Chesney, as her surviving executors. By that answer it is alleged, that George Snowhill, in the year 1811, purchased of Matthias Mount, the father of his wife Rebecca, his homestead farm, for five thousand dollars, which farm he afterwards ex- changed with William "W. Conover for the lands which he left at his death, and which were subsequently sold under the afore- said act of the legislature. That George never paid this money, but gave ' his five bonds, each for one thousand dollars, and a mortgage on the same premises, to secure the purchase money. That Matthias Mount died, leaving a last will and testament, and making his two daughters, Mrs. Conover and Mrs. Snow- hill, residuary legatees of his estate ; and that the principal part of this estate consisted in the debt due from George Snowhill. That George died, leaving a large sum duo on those bonds, which is still unpaid, and without ever having reduced into possession the legacy left his wife, under the will of her father. The defendants, under these circumstances, insist that the lega- cy survived to Mrs. Snowhill, the widow of George, and that, as her representatives, they have a right in equity to retain the money sought to be recovered by the complainants in this action, or as much as may be necessary to satisfy this legacy. That, as the complainants ask the aid of a court of equity to establish their demand, they must first, in the language of the Lav,-, do equity. That, as these very lands descended from George Snow- hill to his son, they were subject to his debts, and would, if remain- ing unsold, have been liable to pay the bonds due from George to the Mount estate, out of which money this legacy is due. That the court will make the fund arising from the sale of the 6 CASES IN CHANCERY, Snowhill et al. v. Executor of Snowhill. lands, answer the same purposes of justice that the lands must have done if not sold. And especially, that they will not with- draw the money out of the hands of a party who has so strong a claim in equity to retain it. There is great force in this position, and it will be found by the cases, that courts of equity have been very liberal on the subject of retaining money under like circumstances. Therule is established, that a party must do right himself, before the court will extend its hand to his relief. The cases on the subject of retaining money, have gone so far, as to enable an executor to retain money, when not due di- rectly to the party, but to a trustee for the party. 2 Peere Wil- liams, 299; lUd, 129; 4 Vesey, 764; 5 Madd. 32. I agree, from a full consideration of the cases on this subject, that ilebecca Snowhill may retain so much of the money arising from the sales of the lands, under the act of the legislature, as those lands would have been liable for to her, in case they had not been sold. It would be most unreasonable to withdraw it from the hands of her executors, until a claim of that character was satisfied. This raises several important questions : 1. Has Ilebecca Snowhill any claim for the lagacy under the will of her father? 2. Does George Snowhill owe any thing to the estate of Matthias Mount? And 3. Could Rebecca Snowhill, if she have any claim, have required payment from the lands of her son ? Upon the first point, it is quite certain, that by the will of Matthias Mount, she is made a residuary legatee, and that such estate consisted of a debt due from George Snowhill. I can see no act done by George Snowhill reducing this legacy into poc- session, and if not, the right survived to his wife on his death. In 2 Green's Hep. 264 and 516, it is clearly settled in our own courts, that the choses in action of the wife survive to her at the death of her husband, unless he reduce them into possession during his life. This is settled law. What will constitute a re- ducing of a chose in action of the wife into possession, so as to do \ rive her of the ckim as survivor, has often been made a question, tnd the cases are not very clear. It would seem to be one rule, APRIL TERM, 1838. 37 Snowhill et al. v. Executor of Snowhill. tliut lie must do some act, by wliich he need not join his wife, in an action to recover it. But I am not called upon to settle this question. It is certain the husband must do something : in tho present case he does not appear to have taken a single step in reference to this legacy. He brought no suit ; he made no change in tho character of the demand ; he does not appear ever to have troubled himself about it in any way. This was, no doubt, ow- ing to the fact, that the legacy could only be paid out of the money he owed himself to the testator. He probably acted on the idea, that if demand was made of him for the payment of his bonds, he would gain a credit for the amount of his wife's legacy. Had he made such an arrangement with the represen- tatives of Mount, and had the credit made on his bonds, the claim of his widow must have been gone. But he did nothing : h ;> left it as he found it at the testator's death ; and I cannot, Vvithout violating well-settled principles of law, hold it in any other way, than that at his death, the right of his wife to this bgcicy survived to her. His personal representatives could have maintained no action for its recovery. A legacy to a married woman is a chose in action, and must be governed by the same rule as all other choses in action. Clancy's Rights of Women, 10D ; 2 Dickens, 491. The next question is, whether George Snowhill owes any taing to the estate of Matthias Mount ? And upon this subject I find considerable difficulty, from the manner in which this busi- ness has been conducted. It is very difficult to discover the truo ctate of the case. Most of the parties have died, and it was never contemplated that the rights of parties would require any further investigation on this subject. The executors named in the will of Matthias Mount, never acted ; but letters of adminis- ' tration, with the will annexed, \vcrc granted to T7illiam AT. Con- over, who in December, 1822, filed an inventory of tho estate, consisting, v,*ith the exception of a email note of thirty-five dol- Lrs jir.inst Francis Larrieon, entirely of the bonds of Gcorga Enov.-lrill ; nmoimtinrj, with interest, to six thousand one hundred and tliirt v-one dollars and ten cents. Cue of the bonds had been 38 CASES DT CHAXCEKY, Snowhill et al. v. Executor of Sno. \hill. given up by tlie testator in liis life-time, which left f our bonds, each of one thousand dollars, and which, with interest, made the aforesaid sum. One of these bonds, by an en d orsement upon it, appears to have been paid off, except six dollars and sixty-three cents. There is upon each of these bonds an endorsement, signed by "William "W. Conover and Rebecca Snowhill in the following words : " February 17, 1835. The within bond settled and di- vided, agreeably to the will of Matthias Mount." What this en- dorsement means, has given rise to much speculation, and I con- fess it is very difficult to understand. If it was intended to dis- charge the bonds entirely, why not cancel them at once ? But they are kept alive ; and it must be remembered, that William "W. Conover, at this very time, was the administrator with tho will annexed, of Matthias Mount, and also interested, in right of his wife, in the bonds, as a legatee under his will. Amidst so much uncertainty, I am compelled to place that construction on these endorsements, which appears to me nearest the truth. My belief, from all the evidence, is, that William W. Conover and Hcbecca Snowhill settled absolutely and entirely all the claims of William W. Conover with the estate of George Snowhill, and by that settlement the bonds were not paid off or cancelled, but each party was to have an equal interest in those bonds. They constituted the whole estate of Matthias Mount, in which they r;crc equally interested as residuary legatees. They therefore nso tho expressions " settled and divided the within bonds." Tho ] nymcnts made, were probably by the board of Mr. and Mrs. Mount, who lived with George after he purchased the farm. At all events, it stands endorsed as a payment, and must be so con- sidered. I consider, therefore, George Snowhill as indebted to the estate of Matthias Mount, for the face of the four bonds, with in- terest, deducting the payments which arc endorsed thereon. The third point to bo considered, is, whether Rebecca Snow- hill could have required payment of her legacy from the lands of her son James, had they not been sold? Upon this there can be no difficulty. The lands descended to James the son, subject to the payment of the debts of his father, and upon a suit brought APRIL TEEM, 1838. 3D Snowhill et al. v. Executor of Snowhill. must have satisfied those debts. The money, when collected, must have been applied by the representatives of Mount accord- ing to the provisions of his will. I decide this cause on the matters set up in the answer, up- on the single ground, that the representatives of Rebecca Snow- hill, who are called upon to pay over to the complainants monies in their hands, have a right in equity to retain so much of those monies a3 will satisfy a legacy due her, and which the landrf out of which that fund has arisen, were bound to pay. It is clear, that she was bound first to apply the personal estate of George Snowhill, before any of his lands could be reached, in payment of his debts. By the settlement of her accounts in the orphan's court, it eeems she had a balance in her hands of one thousand six hundred and six dollars and seven cents. That sum must, therefore, be first applied towards satisfying her legacy. Having thus settled the principles on which 1 consider myself bound to decide tliis case, there must be a reference to a master to ascertain and report. 1. The amount in the hands of the surviving executor of Re- becca Snowhill, on the eale of the lands of James E. Snowhill, under the act of the legislature, after making the allowances authorized by that act. 2. The amount due her for her legacy, under the will of her father, Matthias Mount, deducting therefrom the personal ea&to of George Snowliill in her hands. 3. The amount due from George Snowhill on his said bonds. And I reserve all other equity to the coming in of the mas- ters report. It will be observed, that I have taken no notice of that part of the case upon which much labor has been expended in taking the evidence, going to show that George Snowhill made improvements on the place he purchased of Matthias Mount, and on the other hand, that he never paid for the place, but re- ceived it, with all the stock, directly from the family of his wife. In the view I take of the case, all these facts can make no dif- ference, lie purchased the lands, and took a deed for the same 40 CASES IN CHANCERY, Suowhill et al. v. Executor of Snowhill. He died seized in fee in his own right, and it cannot vary the case, whether he bought of Matthias Mount, or a stranger to him and his wife. Kule accordingly. WILLIAM DICKEY v. DANIEL K. ALLEN. The allegations of an answer not responsive to the charges in the complain- ant's bill, must be snstained by proof. The answer can be of no avail without it. Where the bill alleges the existence of a partnership, and prays an account of the partnership transactions ; an allegation in the answer, that by an agreement between the partners, on the dissolution of the partnership, the complainant was to pay all the debts of the firm, is new and independent matter, not responsive to the charges in the bilL The circumstances, that the complainant, on the dissolution of the firm, con- tinued the business ou his own account ; that he sold out the stock on hand at the dissolution, in the course of this business ; that the complainant, after the dissolution, said that the store belonged to him ; and that, from the manner of the sale of tho stock on hand , it was manifest he never could account ; are not sufficient to establish the agreement, or to sustain the allegation of the answer. The allegation, that one partner agreed to pay all the debts of the firm, should be clearly established. TUB bill charges, that the complainant and defendant, by verbal agreement, became partners in trade, on the 20th of April, 1821, and continued partners until the 5th of April, 1824, when the partnership was dissolved by mutual consent. That each partner had an equal interest in the concern, each advan- cing the same amount of capital ; being equally liable for all losses, and entitled to an equal share of the profits. That since the dissolution, Allen had received a large amount of money due to the firm, and that considerable sums of money were still due from the partnership. That an action had been commenced in the supreme court of New-Jersey, by Allen against Dickey, for five thousand dollars, for the recovery of several promissory notes COTD in Oberlev. Larch, 3 G E. Gr. 351 ; Lurch v. Oberk, Id. 675-580 APEIL TEEM, 1833. 41 Lickey v Allen. which were connected with and formed a part of the partnership transactions : that no settlement had been made of the partner- ship transactions ; and that the defendant was indebted to the complainant, upon the partnership account. Tho bill prays an account, and an injunction to restrain proceedings at law. The answer admits the partnership and the dissolution, as charged in the bill ; but insists, that upon the dissolution, it was agreed between them, that Allen, the defendant, should retire from the firm ; that Dickey should take all the stock and proper- ty of the firm, collect all monies due to the partnership, and pay all the partnership debts : that in pursuance of the agreement, Dickey had taken possession of all the partnership property, and had collected large sums of money due to the firm. The answer further insists, that the notes, for the recovery of which an action at law had been commenced, were justly duo from Dickey to Al- len ; and that nothing was due to the complainant upon the part- nership account. Admits that no settlement had taken place of the partnership accounts ; but insists that the agreement mado between the partners, at the dissolution of the copartnership, was a sufficient and final settlement of all the partnership trans- actions. An injunction to stay the proceedings at law, had issued upon the filing of the bill, which remained in force at the hearing. Depositions had been taken by both parties, and the cause came before the court upon bill, answer, replication and proofs. P. Dickerson*, for complainant. A. WJdtehead and /. H. Wttliamson> for defendant. THE CHANCELLOR. The complainant in this case, seeks to have a settlement of a partnership, existing, as he alleges, by a ' verbal agreement between him and the defendant, in a store at Paterson, from April, 1821, to April, 1824 a period of about three years. As connected with this partnership, there are sun- dry notes, given by the complainant to the defendant, amounting 7 42 CASES IN CHANCEEY, Dickey v. Allen. to a very considerable sum of money, and now in a train of prosecution ; which suit the complainant has obtained an injunc- tion to stay the proceedings in. These notes, it is alleged, were given on account of the partnership, and ought not to be prose- cuted until the partnership accounts are settled, and it 13 ascer- tained upon the foot of that account how much, if any thing, is due and owing by the complainant to the defendant. The defendant's answer admits the existence of the partner- ship, but denies that he is bound to account, on the ground that, at the dissolution of the firm, it was agreed between the complain- ant and defendant, that the defendant should retire from the firm; that the complainant should take the stock on hand, receive all the debts due to the company, and pay all the debts due by the company. In short, that the defendant was to be absolved from any further liability, as between him and the complainant, for or on account of the said firm. If this statement be made out in such form as this court can say it is true, it must be conclusive on the case ; for under such a bargain, there can be no reason for the complainant's calling on the defendant to account, since he took upon himself the whole responsibility of settling the business of the company, without any recourse to his copartner. But this allegation, though ex- pressly and fully made by the answer, is not sustained by any positive proof in the cause. Indeed, there is no direct evidence cither way on this subject. What, then, must be the effect of the defendant's answer ? If this be matter responsive to the charges in the bill, the defendant, in the absence of any contra- dictory evidence, will have the full benefit of such answer : if it be not responsive, he must sustain that part of his case by proof, and the answer can bo of no avail without it. I am clearly of opinion that this part of the answer is no way responsive to tho bill. The bill charges the existence of the partnership, the ac- counts of which are unsettled. To have denied the partnership would have been a response to the bill ; but that is admitted, and new and independent matter, about which no charge is made in the bill, to wit, that the complainant promised to pay all tho APRIL TERM, 1838 43 Dickey v. Allen. debts liimself, at the dissolution of the firm, is set up as a reason why the defendant is not bound to account. This is the same as if the defendant had been charged with making his bond and mortgage to the complainant, and he should by way of answer, allege that he had paid it. This would show a good reason why 1:0 account should be had in respect to that debt, but he must fcustain that part of the case by proof. The answer, therefore, however true it may be in point of fact, cannot sustain this de- foncc without proof. I have said already, that this part of the case was not sus- tained by any positive or direct proof ; but it is contended, that there arc facts and circumstances incidentally appearing in the case, wliich prove that the complainant did make the agreement Ect out in the answer. The principal facts relied on, are, that at the dissolution, the complainant continued the business on his own account : that he sold out the stock on hand in the course cf this business : that complainant stated to the clerk, Abraham liyerson, after the dissolution, that the store belonged to him ; r.nd that, from the manner of the sale of the stock on hand, it was manifest he never could account. These and other circum- stances of a like character, are relied on. But they come very far fihort of establishing so important a matter, as that one part- ner stipulated to pay all the debts of the firm. A matter of as grave consequence as this, should not be made out upon mere conjecture, founded on certain occurrences of this character, but should be clearly established. On the other hand, it was said with much force, is it not strange, if such was the contract, so important in its character, closing the whole business as between the parties, that there is no writing to show it not even the cleric or a single witness to prove it ? It is stated in the evidence of Mr. Ryerson, the clerk, that the business was conducted in a loose way. It did not appear to have been a very heavy concern for these parties, and nothing would be more uncertain than to draw any very important inferences from the manner in which r.ion conducted their business, who seem to have gone into the iirm without iny agreement in writing, and to have closed with- 44 CASES IN CHA^CEET, Dickey v. Allen. out any evidence of the terms or manner in which the same was finally adjusted. I am, therefore, well satisfied that that part of the defendant's answer, that Bays the complainant bound himself to settle up the partnership debts without recourse to the defendant, is not sustained by any proof on which the court can with propriety rest its judgment. But it is further contended by the defendant, that if an ac- count must be taken of the partnership, the notes on which he has brought his suit ought not to be brought into that account. It is manifest from the answer, that most of the money for which those notes were given, went to pay the debts of this firm. The parties differ mainly in this. The complainant says, the notes, or some of them, were given as memoranda, showing how much the defendant had advanced for the firm ; while the defendant contends, that being still liable to the creditors of the firm, he lent the money to the complainant to pay the debts with, and took his notes for the amount. The statements arc very different, yet they show that the notes relate to the debts of the firm. Upon the whole, I shall order an account to be taken of the partnership, according to the prayer of the bill ; with leave to examine into and report how far the notes stated in the bill wero connected with the partnership, and should be taken into the ac- count in such settlement. Order accordingly. Executors of ANDREW BOWELS, deceased, v. THOMAS AUTEN and others. flhe maker of a promissory note, is a competent witness to prove it usu- rious. An objection to the competency of a witness ought to be made at the time oi taking the desposition ? Qu. To constitute usury, under the statute of New-Jersey, there must be a oonfrod in violation of the act. APRIL TEEM, 1833. 45 Executor? of Ho well v. An ten o' al. If a party agree to lend money at a legal rat) of interest, and after com- pleting the contract, ami receiving the borrower's obligation f&r the money, withhol ds a part of the amount loaned, in violation of the agreement of the parties, the obligation it not thereby t ilutad wi;h tr.ury, alihoagh the mo- ney bo withheld by the lender as a premium for tho loan. Tae oblig tion, in such c.ise, i* a valid security f jr the amount actually ad- vance! upon it, but no more. The borrower will be entitled to a credit for the amount withheld in violation of the Agreement TUE bill is filed for the foreclosure cf a mortgage made by Thomas Auten, one of the defendants, to Andrew Ilowell in his life-time, and for the sale of the mortgaged premises. The answer admits the bond and mortgage, but insists that they arc usurious and void. The facts relied upon as proving the usury, sufficient- ly appear in the opinion of the chancellor. T. Frelinghuysen, for complainants, contended, 1. That the answer contained a specific charge of usury. The transaction charged as usurious, must be proved as stated in the answer. 3 Stark. 1521 : 3 Term Rep. 531 ; 2 Shower, 329 : 1 Sdw. N. P. 4GG. 2. A party to a note is not competant to prove it usurious. 14 John. R. 270 ; 17 Mass. 122. 3 The case proved does not constitute usury. Hartwell, for defendant, in reply, It is sufficient to prove the charge of usnry substantially as laid. 3 StarL 1522 ; 1 East. 195 ; 4 Burr. 2251 ; 2 Sound. P. and E. 5GO. It is too late to object to the competency of the witness. Tho objection should have been made at the time of taking the de- position, when his interest might have been released. 2 Stark. 755 ; 10 Hod. 192 ; 2 Stark. 750. The contract being tainted with usury, the mortgage is void, and the bill must be dismissed. 2 John. Cas. GO ; 5 Law Lib. 70 ; 5 Term Rep. 537. THE CHANCELLOR. Tin's bill was filed by Andrew Howcll in his life-time, for the foreclosure and sale of the premises con- 46 OASES IK Executors of Howell v. An en et al. talned in a mortgage bearing date the fourth day of March, 182,4, made by Thomas Auten to him, to secure the payment of a bond of that date between the same parties. The bill is in the usual form. Thomas Auten has filed his answer, admitting that he gave the complainant the bond and mortgage on which the suit is brought ; but says, that one Augustus F. Cammann, his neighbor, being pressed for money, informed him of his situation, and that Andrew Howell would lend it to him, if the said Thom- as Auten and one John Miller, would become security for the payment thererof . That he consented to become security for one thousand dollars ; after which Andrew Howell called upon him with a note, signed by Augustus F. Cammann and John Miller^ bearing date the first of February, 1822, payable in one year, to the order of the said defendant, Thomas Auten, for one thou- sand dollars, which he indorsed. That after indorsing the said note, having some other dealings with Andrew Ho well, by which he became indebted to him, and having sustained losses to a con- siderable amount, Andrew Howell required him to execute to him the bond and mortgage before stated, as well for the monies he owed him as for the amount of the said note on which he was the endorser. This he did with reluctance, and not until he was threatened with a prosecution for the money. The defendant then states, that sometime after the execution and delivery of the said note, the precise time he cannot state, but believes- it was in the spring of the year he executed the aforesaid bond and mortgage, he stated to Andrew Howell that Cammann objected to the payment of the one thousand dollar note, and meant to set up the plea of usury : that he charged him, Andrew Howell, with taking twenty-one per cent, for the loan of the thousand dollars for a year ; and that all the money he had received was seven hundred and ninety dollars. That Andrew IIowcll said he did not think he had taken twenty-one per cent. : that it was not more than one hundred dollars in all. The defendant then concludes his answer by saying, that he cannot positively say tlint the said Andrew IIowcll, at the time of the execution and delivery of the thousand dollar note, took from Cumiuaim twc APRIL TERM, 1838. 47 Executors of Howel! v. Anton ct al. hundred and ten dollars for the forbearance of the said sum of one thousand dollars for one year, but 'believes and charges tJie same to be true. He then insists, that the bond and mortgage are usurious and void under the statute. To this answer a replica- tion has been filed, putting the cause at issue, and depositions taken. It is very evident that the defendant himself has no personal knowledge of the transaction, but relies on believes the in- formation given him by Mr. Cammann. He answers in a guard- ed manner, and with great propriety. The single question raised by these pleadings, is, whether the bond and mortgage is tainted with usury ? If so, I can have no alternative but to declare them void. But before I can do this, seeing that such a result is highly penal in its character, destroy- ing the whole demand of the complainants as founded on the bond and mortgage, I ought to be well satisfied that the case proved comes within the true construction and meaning of the act against usury, and the proof from the mouth of competent wit- nesses. I have already stated that the defendant, by his answer clearly relies on information received from Augustus F. Cam- mann ; and when I examine the evidence, I am equally clear that the defendant must rely on the evidence of the same person to sustain his cause. This witness is objected to by the complainants, first, because his name appears as one of the makers of the thousand dollar note, and it is against public policy that a man shall be allowed by his own evidence to destroy a negociable instrument on which his name appears. If this was a new question, it would present matter for grave deliberation, for I confess I have ever felt a great reluctance to the admission of such a witness ; but since the case of IZosevelt v. Gardner, in 2 Pennington, 791, I consider it settled that this objection cannot, alone, exclude the witness. The practice has been, and so I consider the rule settled in New-Jersey, that the witness is competent. But this objection cannot apply to the prefient case. This action is not founded on the note. That was 43 CASES IN CHANCERY, Executors of Howell v. Autcn ct al. gireii up to tlic party at tlic time tlie bond and mortgage were executed on which the present action is brought. The second objection is more serious, on the ground of in- terest. It seems that this witness is the only party really inter csted in the loan of the thousand dollars. The defendant, Auten, is only security for Camrnann, and I can perceive no- good rea- son why a recovery on this bond and mortgage will not make him directly liable to Autcn for the money. With this strong impression on this point against the competency of the witness, I incline still to allow his testimony, letting the objection go to his credit rather than to liis competency. I do so from a desire to settle the case on its merits, as more satisfactory to all the parties, and because no objection was raised to the witness at the time he was sworn, when, as was truly said by the defendant's counsel, it was in their power to have released the witness, and thereby made him competent. I am, then, to examine this case upon the whole evidence, the most material of which is that of Augustus F. Cammann. The first section of the statute against usury, provides, " that no person shall, upon any contract, take directly or indirectly, for loan of any money, wares, &c., above the value of seven dollars for the forbearance of one hundred dollars for a year." This is a case under the old law, prior to the 4th of July, 1824. The sotond section provides, " that all notes, bills, bonds, mortgages, &c., made for the payment of any money so to le lent, on which a higher interest is reserved or taken, shall be utterly void." It is clear, that to constitute usury, there must be a contract in vio- lation of the act. In 2 Saunders on Pleading and Evidence, 493, it is said, " To constitute usury under the act, there must bo a contract with an unlawful intent to take illegal interest." And in 1 Camp. 149 ; " it must be shown that there was a con- tract or agreement for usurious interest : for if the interest appear to have been reserved by mistake, or upon an error in computa- tion, the contract will riot thereby be avoided." It has also been held, that tho contract must be tainted with usury in concoction and any subsequent corrupt contract will not invalidate it. APRIL TEKM, 1838. 49 Executors cf Howell v. Ant*, n et nl. 1 East. 95. A bond made upon a legal contract, to cany only legal interest, if one party should pay a higher rate of interest than the law allows, and the other party should receive it, would not thereby become void, for the plain reason, that it was no part of the original contract. Taking these principles as true, and giving full credit to the testimony of Mr. Cammann, I cannot Bee how this contract can be made out to be usurious. From his own case, there was no contract between him and Andrew Howell ever made, by which he was to pay more than the legal interest for this money. Being in want of money, Cammann applied to Andrew Howell for it, and was told by him that if he would give his note with one John Miller, and endorsed by Thomas Auten, that he could raise the money on it. That such note, for a thousand dollars, was accordingly made and handed to Andrew IIowelL No mo- ney, it would seem, was paid until after the note was executed and delivered to Andrew Howell. "What were the terms of the contract ? Was Howell to have any thing beyond the legal in- terest for the loan of the money ? This is the material question. The witness answers it explicitly. Referring to the note, ho says, " there was nothing but common interest for the considera- tion." This is the language of the witness, and he afterwards explains the meaning of the word common interest, as used by him in this expression, to be legal interest. Throughout his whole evidence, he complained of the treatment of Andrew Howell, in not paying him the whole of the thousand dollars, as a breach of good faith ; not as a withholding, upon any express or implied contract at the lending of the money that he might do so, but as being contrary to both. "We have, then, this case. Howell agrees to lend Cammann, upon his note with security, one thousand dollars. By the contract, he was to be charged no- thing but the legal rate of interest. Ilowell pays him a part of the money by a Mr. Hoagland at one time, being two hundred and fifty dollars, and a part at another time, but withholds, con- trary to good faith, a part of the money. Is this usurious with- in the meaning of the statute ? Ilowell is clearly indebted to 8 50 CASES IS CHANCERY, Executors of Howell v. Autcn et al. Cammann for the money lie withholds. In other words, he haa a note for more money than he is entitled to. This, as it ap- pears to me, is the whole case. The witness further states, that he asked Mr. Howell about the item of two hundred dollars, and told him it was too much interest for him to pay ; to which Howell replied, that money was very scarce, and could not be got without it. Does not this very conversation show, that the withholding of that money was in bad faith, and against the agreement of the parties ? Might not Cammann, upon this case, have recovered this money from Howell ? But the witness says, Howell retained this money as a premium for raising the thou- eand dollars. If he did, it was not by virtue of the original con- tract, as the witness expressly swears. I consider this case the same, as if the name of John Tannest had not been on the note at all. I have no doubt the real transaction was between Cam- mann and Howell, and I shall protect the defendant in this ac- tion from paying any tiling more on this note than Howell ad- vanced, with the interest thereon, that being the good faith of the contract ; but I cannot declare the same usurious, not coming, in iny judgment, within the provisions of the act. This is no case of cover to usury, for the witness declares the contract to have been a fair and just one. There appears to have been other transactions between these parties, and wluch were blended in the settlement of the note. Cammann thought proper, contrary to the usual course of busi- ness, to give tho noto first, and depend on Ilowell's paying him the money afterwards. The evidence of James Cain relates to a conversation he had with Ilovrcll on this subject, in 1827. He went to see him. about a note of Stephen Perrinc. This must have been after Cam- mtnm had set up usury in this case, as the defendant, in his an- swer, says it was in the spring of 1824 that he told Howell that < ::imanu meant to set up the plea of usury against the note. Tho amount of tins conversation with Mr. Cain, was, that the Perrinc note was turned into this Cammann note; and Ilowell said he meant to wait the result of this suit before he disposed of APEIL TERM, 1838. * 51 Executors of Howell v. An ten et al. that claim, for he did not know but they might lose the money on account of usury. But he adds, as a reason for this appre- hension, that Cammann was a strange kind of man, and there woe no knowing what he might say. This evidence no way var CG the case. Upon the whole case, therefore, I am of opinion, that the con- tract on which the bond and mortgage in this case were given, was not usurious within the meaning and true construction of the statute on that subject, but that the same are a valid security to the extent of the money advanced by Howell on the same to Cammann, and of the liabilities of Cammann which were set- tled thereby. I shall direct a reference to a master, to ascertain the amount due on the same, in conformity with this opinion, with direction to allow the defendant a credit for any part of the thousand dollars which was never paid or accounted for by An- drew Ilowell to Augustus F. Cammann on the loan. [Nora. The decree in this cause was appealed from by Thomas Auten, one of the defendants ; and at May term, 1839, the decree of the chancellor was unanimously affirmed by the court of appeals.] CITED in Neville v. Demeritt, 1 Gr. eh. 334; Ware v. Thompson's Ad., 2 Beas. 67; Hobolcen Build. Asso. v. Martin, Id. 431 ; Smith v. Sol- lister, 1 MeCar. 155; Lee. v. KirlcpatricTc, Id. 266; Aubte's Ad. v. Trimmer, 2 C. E. Gr. 246. JOHN FLANAGIN v. FEDERAL CHAMPION and JESSE EL BOWEN. On a bill filed against C. and B., as partners, the declarations of 0. are not admissible against B. to prove tbe partnership. The declaration of oiu> partner is only admissible against the other, after the fact of tho partnership id established. The declarations of one partner, made after the dissolution of the partner, ship, arc not admissible to charge his copartner.* THIS cause came before the chancellor for final hearing, upon the bill, answer, replication, and proofs. Jesse II. Bo wen alono NOTE. This rnle prevail* in New- York, and the weight of American au- thority is in conformity with it Hackley v. Patrick, 3 Johns. 536; TTafden 52 CASES IN CHANCERY Flanigan v. Champion and Bowen. answered. The charges of the bill, the nature of the defence, and the evidence relied upon by the respective parties, so far as are necessary to a clear understanding of the case, appear in tho opinion of the chancellor. Jeffers, for complainant. Wall, for defendant. THE CHANCELLOR. The complainant is a merchant in the cit} of Philadelphia, who, during the summer and fall of 1833, sold goods to a considerable amount to Federal Champion, who was a storekeeper at Gravelly Run, in the county of Gloucester, in this state. Shortly after selling these goods to Federal Cham- pion, he failed for a large amount ; and upon investigating his course of conduct for some time previous to his failure, and par- ticularly on finding the extent of his recent debts, no doubt re- mained on the mind of the complainants of his fraudulent con- duct. His conduct after this failure, in trifling with his creditors, by abortive attempts at settlemcnt,was well calculated to strength- en this belief. The complainant has entered up a judgment against Federal Champion for his demand, or a part thereof, and taken out execution against his property. Standing as a judgment and execution creditor of Federal Champion, the com- plainant has filed his bill, as well in his own behalf as in behalf fi al v. SherburM it al. 15 Johns. 42 i ; M'dchtll v. Roulstone et al. 2 Hall, 361 ; Shelion v. Cocke et al. 3 Muf. 101 ; forks v. IVe'ford and Co. i Zlunf. 215 ; Walktr tt al. v. Dubemj, 1 Marshal, 180. But it seems tho English rulo ia otherwise. After t* dissolution of partuer- ubip. the admission of one partner will bo binding uponhin copartners, if itrelato to a transaction which occured during its continuance ; although in matters which have subsequently nrisen, tho admission of one partner ia not evidence* to cbargo tie other members of the firm. Wupd v. "Dradtllck 1 Taunt. 1C1 ; Eoani v. Drummond, 4 Esq. N. P. C. 1 9 ; Pritchanl v. Drop r, 1 7?uss. )efore the court ; for " each executor may pos- e?cs Borne distinct part of the personal estate." The whole rea- LOII given for making them parties, is having assesta in their hands, which in tho present case is expressly denied. The next case cited, is that of Holland v. Prior, from 8 Con- densed English Chancery Reports, 487. This, is a very long opinion, ;unl reviews most of the cases on the subject. The bill v/as filed p/jainst the executor of the administratrix with the will annexed, and against the administrator de bonis non of the ori- ('iiu:l testator. And the question was, whether any other party could bo made defendant llir.n the administrator de ban-is non. The court decided that they might, upon tho ground that the iiryt administrator had received assets, and tho bill prayed that Lcr executor might r.ecount for and pay over the amount of such 76 CASES IN CHANCEKY Goblo v. Andruss et al. assests. The chancellor states the case in his own language, thus : " The question is, therefore, whether the executor of an administrator, who had received assets of the per son represent- ed by her, can be made a party to a suit instituted by the credi- tors of that person." These assets being, or not being, in the hands of the deceased representative, make the difference in the cases now cited and that before the court. Besides, it will be found in this last case, that the court is furnishing the com- plainant with an excuse for having made these parties, and pre- supposes throughout that they had assets in their hands. The case, as now presented, stands upon a demurrer to the bill. Every charge, therefore, which is there well pleaded, is 'admitted. The charge, that all the assets are in the hands of the defendant, I consider material, and well pleaded. But it is insisted that there is a difference in this case from those cited from the books, inasmuch as here was- a decree of the orphan's court establishing a joint liability in the executors. I cannot think this decree makes the liability any more joint than it was before. They were jointly liable before, as well as since the decree. The decree only ascertained the amount due, leaving the liability the Bamc as before, joint, and leaving wholly undetermined and open, as between the parties themselves, what part of the estate each executor had. It would be a dangerous doctrine, that a settle- ment by two executors in the orphan's court, and a decree estab- lishing the amount in their hands, should, as between themselves, be conclusive that each at the time had half of the estate. Such decree, in my opinion, has no euch effect. It ascertains the amount in their joint hands, for which they are jointly liable, but open to be settled as to the amount each has in his hands at the time. This, therefore, cannot vary the question. , There is a charge in the bill, that the complainant had receiv- ed one hundred and forty dollars from the defendant, Isaac An- druss, in the life-time of her husband, on account of her legacy, and it is insisted that this is a reason for making the representa- tives of her husband a party. I cannot see how this can be, for at all events this complainant agrees to give the defendant a ere- APKIL TERM, 1838. 77 Goble v. Andruss ct ul. dit for so much paid her on account of her legacy, and if so, that is enough for all the purposes of this suit. It was further pressed, that this defendant was desirous of bringing all parties before the court, that they might be bound by the decree, and in case of payment, that he might be protect- ed and indemnified ; also that the accounts of the two executors might be settled in this action. These are all matters fair in ar- gument, and I make no question are insisted on from a belief that they are important to the defendant's interests. From the view which I take of the question, I cannot say the complainant is bound, according to authority and the settled practice of the court, to make the parties to his suit now asked for, upon the bill as now framed, however great a convenience it might be for the defendant. The demurrer, therefore, must be overruled, with costs, and the defendant put to his answer. Demurrer overruled. ADVDMXD UT THE PREROGATIVE COURT, APRIL TERM, 1838. SAMUEL READ v. AMOS H. DRAKE. The appeal given to the prerogative court by the twenty-seventh section of the act, entitled "An act to ascertain th power and authority of tho ordinary and his surrogates, to regulate the jurisdiction of the prerogative court, and to estublis ) an orphan's court in the several counties of thu state," passed June 13th, 1820, (Rev. Laws, 784,) authorizes the ordinary to look into the met its of the decision made by the orphan's court in granting letters of guardianship, and to affirm or set abide and change the appointment made by the orphan's court, as the ordinary shall think the legal and just rights of the parties require. la coses of disputed claims to the right of guardianship, the depositions taken at the hearing should be reduced to writing by the surrogate, and be sent up with the papers on the appeal. Whether depositions are taken and sent up or not, the ordinary may, in his dis- cretion, allow further depositions to be taken on notice, before the surro- gate, to be used on the hearing of the appeal. By the twenty-eighth section of the net of the 13th of June, 1820. (Rev. Laws, 784,) the mother or next of kin are given a clear preference, and are entitled, if they desire it, to the appointment of guardian for minors under fourteen years of nge, and cannot be passed by except upon some satisfac- tory objection made and sustained before the court. THIS cause came before the court upon appeal from a decree of the orphan's court of the county of Warren, appointing Amos II. Drake guardian of the persons and estates of Sally Ann Drake and Maria Drake, minors under the age of fourteen years. The parents of the minors were both dead. At February term, APRIL TERM, 1803. 70 Bead v. Drake. 1837, Samuel Read, the maternal grandfather of the minors, applied to the orphan's court, pursuant to the provisions of the statute, to be appointed guardian of the said minors. At the same term, Elizabeth Swayze, (formerly Elizabeth Drake,) the paternal grandmother of the minors, together with several of their paternal uncles and aunts, made application to the said court, for the appointment of Amos H. Drake, a paternal uncle of the minors, as their guardian. Both .applications came on for hearing before the orphan's court at the same time, and evidence was adduced by both parties. Objections were made to the ap- pointment of Read as guardian, principally on the ground that he had been the acting administrator of the estate of George W. Drake, (who was the father of the said minors,) and that the friends of the minors were dissatisfied with the account of his administration as settled in the orphan's court ; alleging that it did not contain a full statement of the estate, and that a large amount of property was kept back and unaccounted for. The orphan's court, upon the hearing, rejected the application of Read, and appointed Amos H. Drake guardian of the mi- nors. From this decree Samuel Read appealed ; and by his petition of appeal, prayed that the decree of the orphan's court might be reversed, and that he should be appointed guardian, bearing nearer of kin to the minors than the said Amos II. Drake. Af- ter filing his petition, on the 16th of May, 1837, the appellant obtained an order of the prerogative court, that both parties have leave to take depositions before the surrogate of the county of Warren, upon ten days' notice, to be used upon the hearing of the appeal. Much testimony wag taken in pursuance of this rule, by the parties, which was objected to on the hearing by the respondent as incompetent, on the ground that the evidence be- fore the orphan's court should have been reduced to writing by the surrogate, and sent up to the prerogative court ; and that the appeal should be heard and decided upon that evidence alone. The cause was heard upon the petition, answer, and proofs. 80 PEEKOGAT1VE CO (JET, Head v. Drake. Frelinghuysen, for appellant, insisted, 1. That Drake is one degree further removed in kindred from the minors, than the appellant. 2. That as between kindred in equal degree, the male should be preferred to the female. 3. That guardianship ought to be granted to one to whom the lands of the minors could not descend. 4. That the complaint against Read, the appellant, upon which he was excluded from the guardianship, was frivolous. He cited, R&o. Laws, 7S4-5, sees. 27, 28 ; Consets on Courts, 216, 5, sec. 3 ; 5 Cranch, 281-3 ; 7 Cranch, 22. 107, 122 ; Griffith's Treatise, 198. H. W. Green, for respondent, in reply, insisted, 1. That the authority of the orphan's court, under the statute, in the appointment of Guardians, was discretionary. 2. That that discretion having been exercised, after a delibe- rate hearing, in the presence of all the parties, upon full evi- dence, this court will not disturb the decree except for manifest error. 3. That if the orphan's court assign improper reasons for the exercise of their discretion, this court will reverse their decree ; but will not presume an improper reason, if none is assigned* Eldridge and wife v. Lippincott, guardian, Coxe, 397. 4. That the depositions taken by the surrogate since the hear- ing before the orphan's court, were incompetent, and ought to be overruled. THE OKDINAET. Upon the above case I decide as fol- lows : 1. That by the twenty- seventh section of the act, entitled, "An act to ascertain the power and authority of the ordinary and his surrogates, to regulate the jurisdiction of the prerogative court, and to establish an orphan's court in the several counties of this state," (Rev. Laws, 784,) the appeal given to the pre- rogative court authorizes the ordinary to look into the merits of APEIL TEEM, 1838. 81 Read v. Drake. the decision made by the orphan's court in granting letters of guardianship, and to affirm or set aside and change the appoint- ment made by the orphan's court, as the ordinary shall thi Jc the legal and just rights of the parties require. 2. That in cases of disputed claims to the right of guardian- ship, the depositions taken at the hearing should be reduced to writing by the surrogate, and be sent up with the papers on the appeal ; and that, whether depositions are taken and sent up or not, the ordinary may, in his discretion, allow further deposi- tions to be taken on notice, before the surrogate, to be used on the hearing of the appeal. 3. That by the twenty-eighth section of said act, the mother or next of kin are given a clear preference, and are entitled, if they desire it, to the appointment of guardian for. minors under fourteen years of age, and cannot be passed by, except upon some satisfactory objection made and sustained before the court. 4. That in the present case, I see no satisfactory reason to pass by the next of kin, who on all hands is admitted to be the appellant. 5. That the decision of the orphan's court of the county of Warren be reversed ; that the lettters of guardianship granted to Amos II. Drake be set aside, and that such letters be granted to Samuel Head, the appellant, being the next of kin to the minors, who are under fourteen years of age, upon his giving bond ac- cording to law. The following decree was thereupon made : This appeal coming on to be heard at a special term of the prerogative court, held at Trenton, before his excellency William Pennington, governor of the state, and ordinary in the same, on Wednesday, the sixteenth day of May, in the year of our Lord one thousand eight hundred and thirty-eight, in tho pre- sence of Theodore Frelinghuysen, of counsel for the appellant, and of Henry W. Green, of counsel for the respondent ; and the matters therein having been read and considered, and after tho arguments of counsel heard, the ordinary was of opinion that 82 PREROGATIVE COURT, Bead v. Drake. the said Samuel Read, was the next of kin to the said minors. Sally Ann Drake and Maria Drake, and that no sufficient rea- son appeared to pass by him in the choice and appointment oi guardian for the said minors. It is therefore ordered, adjudged and decreed, that the said decree of the orphan's court of the county of "Warren, appealed from in this cause, appointing the eaid respondent guardian of the said minors, be, and the same is hereby reversed and set aside : and it is further ordered, that letters of guardianship be granted to the said Samuel \Read, ap- pointing him the guardian of the said Sally Ann Drake and Maria Drake, and that said letters be issued from the preroga- tive office of this court, on the terms provided by the statute in such case made. On motion of William C. Morris, proctor for the appellant. CITED in Albert v. Perry, 1 McCar, 540. Bayers Ad. v. Sayre, 1 C. E. Or. t 508. ISAAC LOWE v. WILLIAM H. WILLIAMSON". What constitutes testamentary capacity, or the " sound and drepoeing mind and memory " essential in a testator. The mere opinions of -witnesses (other than the testamentary), unsupported by facts, are entitled to no weight. The influence acquired over a testator by kind offices, unconnected with any fraud or contrivance, cau never, alone, be a good ground of setting aside a will ; such influence is lawful and proper. The influence thus acquired, though exerted over a testator above eighty years of ag\ whose bodily faculties are impaired, and who, without good reason, entertains feelings of hostility to his family, cannot invalidate the will. ON the 15th of July, 1833, WiUiam II. Williamson exhibit- ed to the surrogate of the county of Somerset, for probate, a paper writing, purporting to be the last will and testament of John D. Lowe, late of the township of Hillsborough, in said county. Isaac Lowe, a brother of the said John D. Lowe, hav- ing filed a caveat against the probate of the said instrument, the cause was brought to hearing before the orphan's court of said APRIL TERM, 1838. 83 Lowo v. Williamson. county of Somerset. That court, after hearing testimony and counsel upon both sides, by their decree, bearing date on the 26th of March, 1835, admitted the said writing to probate as the will of the said John D. Lowe, and directed that the costs of suit should be paid equally by the parties. From this decree the caveator appealed, and by his petition complains that " the said decree is erroneous, contrary to law, and against the evidence." The respondent, "William II. "Wil- liamson, having filed his answer to the petition of appeal, the cause came on. for hearing before the ordinary, at January term, 1838. The material facts and circumstances adduced in evidence, and relied upon by the respective parties, as far as necessary to an understanding of the case, are stated in the opinion of the ordinary. P. L Clark and Frelinghuysen, for appellant, insijtod that the testator was not competent to make a will, 1. Because he was destitute of testamentary capacity. 2. By reason of monomania a delusion of mind as to his family, under which he labored. 3. From improper influence exercised over him by the de- visee. They cited 3 Stark. 1702, n. ; 2 South. 455 ; 3 Stark. 1737, n.4; Swinb. 78; 6 Coke, 23, .; 1 Pctos C. C. 12. 104: 1 Chitty's Med. Jur. 352; 13 Vcsey, 89; 3 StarL 1703, 8; 5 Johns. 158 ; 2 Yeates, 48 ; 2 South, CGO ; Cooper's Med. Jur. 340, 8; 8 Mass. 371 ; 9 Yesey, 185; 11 Ibid, 11 ; 7 Sety. andR.W', 8 /&#, 573. JIartwett and Wall, for respondent, in reply, cited, opinion, of chief justice Ewing in the case of MaxweWs will / opinion of Vroom, ordinary, in the case of Harris's will; Whitenack v. Strykcr, ante, p. 8 ; 1 Cond. Ecdes. Rep. 336 ; 3 lUd, 254 ; Shelf ord on Lunatics, 339, 318 ; Bootes Med. Jur. 380 ; 4 Wash. C. C. Rep. 262; 2 South. 674. 84: PREROGATIVE COURT, Lowe v. WilliamFon. THE ORDINARY. The will of John D. Lowe, bears date on the Gth day of August, A. D. 1831, and he died in the month of July, 1833. The instrument on its face is plain and simple, requiring no extraordinary effort of mind to prepare or under- stand. After providing for the payment of his debts, authority is given to his executor to sell his personal estate .first, and if that be not sufficent, then his real estate to discharge them. lie then gives all his estate, real and personal, to "William II. Wil- liamson, whom he makes his sole executor, requiring that he shall maintain and support his (the testator's) wife, if she survive him, in a manner suitable to her age and infirmities during her natural life ; and he charges such maintenance and support upon his real estate. This is the whole will. The devisee and executor, "Wil- liam H. Williamson, is a stranger to the family of the testator, being no way allied to him by blood or marriage. It cannot be . matter of wonder that the immediate relations, those to whom the estate, according to the course of nature, would have gone, should feel, and feel sensibly, this disposition of the property. It furnishes with me an additional motive to look into the casa with care. There are a variety of circumstances appearing by the evi- dence, which meet this part of the subject, and account, in somo measure, for the will The testator had no children. His wife, like himself, was aged and infirm. He had, with or withoui sufficient cause, long estranged himself from his family. Through a course of years, so far from manif esting any tiling of that affection and regard which would naturally be looked f oi from a man toward his nearest relatives, he was full of expres- sions of hostility towards them all. lie seemed to entertain the opinion, that they looked down upon him. There was little or no intercourse between him and his family. He frequently tri- umphed in the idea that his brothers would bo mad when they found they got none of liis property. Ho had made other wills. In the last, made many years before his death, he gave none of his property to liis family, but to a young man a relative of his wife. All these circumstances are very strong, and furnish tho APRIL TERM, 1838. Lowe v. Williamson. motives which actuated the testator in the disposition of his pro- perty. I am very far from seeing any thing in the evidence to joetify this hostility towards his relatives, but that he entertained these feelings for a long course of years is abundantly proved. His habits of gross intemperance would certainly have excused even a relative from any close association. lie made by his will provision for his wife ; and it is worthy of remark, that although the devisee (Mr. Williamson) was a stranger to the blood of the testator, yet he evidently had a strong attachment for him. They had lived together for several years, and the testator had received great kindness and attention from him in his declining years, and not only himself but his wife also. The testator spoke fre- quently of his kindness ; and it must be conceded, that although a man of strong prejudices, he was not insensible to offices of kindness and attention. When the testator offered to give his estate to others, which he did on several occasions, it was gene- rally, if not always, coupled with the condition, that they would come and live with him, and take care of him and his wife. These are all matters proper and necessary to be borne in mind, when considering the unnatural character of the provisions of die will. Three grounds are taken against the will : 1. Incapacity. 2. That the testator had a delusion of mind as to his family. 3. That improper influence was exercised in its procurement. What constitutes " a testamentary capacity," or in other words ' a sound and disposing mind and memory," has been repeated- ly settled in this court. The correct and settled construction is contained in the case of Den. v. Vancleve, in 4: Washington's Circuit Court Reports, 207-8. The language used by the judges in that case, I find repeated in almost every case since, r.nd must be taken now as the received definition and meaning of the above terms. The language is, " lie (the testator) must, in the language of the law, be possessed of a sound and dispos- ing mind and memory. lie must have memory. A man in whom this faculty is totally extinguished, cannot be said to pos- se s understanding to any degree whatever, or for any purpose. 86 PREROGATIVE COURT, Lowe v. Williamson. But his memory may be very imperfect ; it may be greatly , im- paired by age or disease ; he may not be able, at- all times, to recollect the names, the persons, or the families, of those with whom he had been intimately acquainted ; may at, times ask idle questions, and repeat those which had before been asked and an- swed; and yet his understanding may be sufficiently sound for many of the ordinary transactions of life. He may not have sufficient strength of memory and vigor of intellect to make and to digest all the parts of a contract, and yet be competent to di- rect the distribution of his property by will. This is a subject which he may possibly have often thought of ; and there is pro- bably no person who has not arranged such a disposition in his mind, before he committed it to writing. The question is not so much what was the degree of memory possessed by the testator, as this Had he a disposing memory ? Was he capable of recol- lecting the property he was about to bequeath, the manner of distributing it, and the objects of his bounty ? To sum up the whole in the most simple and intelligible form, were his mind and memory sufficiently sound to enable him to know and to understand the business in which he was engaged at the time when he executed his will 2 " In the opinion of chief justice Ewing and justice Drake, on the will of John Maxwell, sitting for the ordinary (Yroom) in this court, after quoting the above language of judge Washing- ton, they say, " we shall, on the present occasion, adopt in sub- stance the doctrine laid down by judge Washington, as the pro- per exposition of the terms, sound and disposing mind and me- mory, and the correct standard of testamentary competency and capacity. Wo find it perspicuous, wo believe it sonnd, and wo learn it was received and approved by the ordinary in the recent case of the appeal on the will of Taccy Wallace" Chancellor Yroom, in the case of the will of Adam Snyder, says, in refer- ence to this same opinion of judge Washington, " In the case of Tacey Wallace's will, decided in this court in January, 1831, and in the case of John MaxweWs will, decided in this court in October, *1831, by chief justice Ewing and justice Drake, APRIL TERM, 1838. 87 Lowe v. Williamson. sitting for the ordinary, the law as laid down in the authorities above cited, is considered as the law of the land, and the court has so held it in subsequent cases." The law, therefore, on this subject, is well settled in this court. [After a minute examination of the very voluminous evidence touching the testator's capacity, which is here omitted, the ordi- nary proceeds ] If the mere opinions of witnesses were to govern, it would bo impossible to decide this cause. They are nearly divided on that point. But it is singular to remark, that many witnesses in this cause, while they repeat again and again their opinion against the testator's capacity, state no single fact upon which such an opinion can rest : nay, in many cases, the conversations which they relate, and the testator's whole conduct, would seem to havo been perfectly rational. The testator was eighty years of age, very deaf, and his eye-sight defective. It was no strange thing, that under his circumstances, many should havo been impressed with a firm belief of his incompetcncy to transact any business. This was no doubt strengthened by the fact, that he was much in the habit of depending on his wife. She appeared to control every thing. From a careful examination of the facts related, not placing my dependence on the mere opinions of the witnesses, I can come to no ether conclusion, than that the testator had mind and memory sufficient to execute the will in question. All tho subscribing witnesses, and tho writer of the will, with many other witnesses, agree that he had ; and the general course of his conversation, when sober, shows no such prostration of his mental powers as will justify mo in setting aside this will. It will be remarked, that there is no pretence of derangement; but tho ground assumed is, that his long habits had gradually so enfee- bled his mind, that he was not competent to discharge so solemn a duty as tho making of this will. Some views were presented by the counsel of the caveatora of an imposing character, but a strict examination of the evidenco Lowe v. Williamson. will not enable me to sustain them. Among these, there was one which at the time made a strong impression on my mind, viz. that the condition of the testator's mind was such, so enfee- bled by age, by drunkenness, and general infirmity, that he was an easy prey to any man who might flatter his prejudices. I cannot, however, find the evidence strong, enough to believe that he was thus deluded. The manner of executing the will, the time taken, the apparent reluctance on the part of Williamson to go after Mr. Manners, all are at war with such an attempt. Could this testator, by any flattery, have been induced to make a will in favor of his relatives ? If not, then he had mind and will to act on this subject. His course was uniform. IIo rJways said he would not give his property to his relatives. As to the argument derived from the influence- acquired over the tes- tator by kind offices, that alone can never be a good ground for setting aside a will, unconnected with any fraud or contrivance. So far as that went in the present case, I consider it creditable to Williamson and his family. They did take good care of these old people, and if that circumstance has had, as it no doubt had, an influence on the testator's mind in making this will, it was lawful and proper. I cannot see any such improper influence exerted over the testator as to affect this case. It was further urged, that the testator was under a species of derangement or delusion as to his relatives : that ho took up a prejudice without cause. I have before said, that I find no good reason for li.Is hostility, but it is plain that the testator had such feelings towards them. There was no intimacy with them. They visited him very little. lie had an idea that they looked down upon him, and was no doubt jealous of their superior standing. There was, then, no delusion, but a reality in the fact, that there existed no cordiality between him and his rela- tives. It was of long standing ; not sudden and accidental, but abiding. Upon the whole case, I am constrained to say, that I see no ood ground for refusing tho probate of this will. I therefore affirm the decision of the orphan's court of the county of Som- APRIL TERM, 1838. 89 Lowo v. Williamson. ereet in all respects, and direct each party to pay his own costs on this appeal. The following decree was thereupon made : " This cause having been heard and debated before this court, in the presence of the counsel of the respective parties, at the term of January last, and the court having taken time to con- sider thereon ; whereupon, and upon inspecting and considering the proofs, depositions, and exhibits, and the paper writing pur- porting to be the last will and testament of the said John D. Lowe, deceased ; the court is of opinion that the said testator, John D. Lowe, at the time of making and executing the said last will and testament, was of sound and disposing mind and memory, and possessed sufficient testamentary capacity to make and execute the said last will and testament, and that probate thereof ought to be granted in due form of law. It is thereupon at a prerogative court held at Trenton, on tin's ninth day of April, A. D. 1838, ordered, adjudged and decreed, that the de- cree of the orphan's court of the county of Somerset, be in all things affirmed, and that the said will be admitted to probate, and further, that each party pay his own costs on this appeal." AD/TTDOED IN THE COURT OF CHANCERY OF TEE STATE OF NEW JERSEY. JULY TEEM, 1838. JANE KICIIMOND v. WALTER M. RICHMOND. There is no fixed general rale by -which to graduate the allowance for alimo- ny, but every case must depend very much on its own pecuMar circum- stances. The allowance will not be graduated solely by a regard to the actual rents and profits of the defendant's estate at the time ; nor by the actual wants of the complainant. The defendant's property must be estimated by its value at the date of the master's report, and not by its value at the time of filing the bill. Does the statute of New- Jersey (Rev. Laws, 6G8, sec. 9) authorize any fur- ther process to enforce a decree for the alimony and maintenance of the wife, and the maintenance of the children, than a sequestration ? Qit. Where, upon a decree for a divorce, the children are placed by the court un- der the charge of the mother, the allowance for their maintenance will bo Bucli that the children may bo fully maintained in a manner corresponding with the condition in life of the father. The court, in placing the children under the charge cf the mother, mean to impose upon her no burden of a pecuniary character. It seems that this court has the power at any time, on a change of circum- stances, to vary the allowance for alimony, by increasing or diminishing it. Tins bill was for a divorce, upon the grounds of extreme cruelty and adultery. It prayed a decree for a divorce from tho bond of matrimony : that the complainant might have the care, JULY TEEM, 1838. 91 Richmond v. Richmond. custody and charge of the persons of her children, and the su- perintendence of their education ; and that the defendant should pay to the complainant a reasonable allowance for her support and alimony, and for the support, education, clothing and main- tenance of her children. Oa the 13th of October, 1837, the court divorced the parties, a vinculo matrimonii, for the cause of adultery in the defend- ant, and placed the children under the care and management of the complainant. By that decree, a reference was made to a master, to inquire into the circumstances and condition of the said parties, and the circumstances and condition of the said children, and into all the matters touching the amount to be al- lowed the complainant for alimony, and for the support, clothing and education of the children. The master reported fully on the whole case, and returned the evidence upon which his report was founded. He estimated the value of the defendant's estate, both real and personal, at the time of filing the bill, over and nbove his debts, at nineteen thousand and sixty dollars. This consisted almost entirely of real property in the city of New- Lrunswick. Ho made no report of the amount of the annual rents and profits of the estate, but reported that there should be allowed to the complainant, for her alimony and maintenance, the interest on six thousand five hundred dollars annually, which at six per cent, would be three hundred and ninety dollars ; and for the support, education and clothing of the children, being three in number, the sum of four hundred and eighty-two dol- lars annually making in all, for the allowance to the complain- ant and her three children, eight hundred and seventy-two dol- lars a year, payable half-yearly. The master further reported, that in making the allowance for the alimony of the complainant, he was guided by analogy to the right of dower of the wife, and to her interest, according to the statute of distributions, in the personal estate, if the husband died intestate. To this report various exceptions were filed by the defendant, principally upon the ground, that the allowances made by the master were too large. Additional depositions were taken, which, 92 CASES IN CHANCERY, Richmond v. Richmond. together with the written statements of the parties themselves, were, by consent, read upon the hearing. The cause came on for hearing upon the exceptions, and it was particularly desired by the parties that the chancellor should give directions for a final decree, withoutaxef erence back, i event, to the master. ,~ Adrainand I. H. Williamson, for defendant, cited, Ch. Rep. 604 ; C Hid, 92 ; Law Library, No. 39 ; 3 PhUL 387 : 3 Cond. Ecdes. Rep. 153 ; Rev. Laws, 668. N&oiuSy for complainant, contra. TITE -CryLNCELLOK. I have looked carefully into the books to see if there was any fixed, general rule for allowances of this character, and had I found one, would cheerfully have followed it. I can find no such rule, none has been furnished me, and indeed it would be impossible to frame one which would work justly in all cases. Certain rules have, indeed, been laid down from time to tune, so as to form some guide ; still, every case must depend very much on its own peculiar circumstances. It is urged, that the actual rents and profits of the defendant's estate at the time, are the only matters to be looked at, and the allowance must be graduated by them. This would be a most uncertain guide, with the changes to which we are continually exposed. The rents of property like that owned by the defend- ant, will vary much in the course of a single year. This year they may be, and probably are in fact, much lower than they were last year, and the year before ; and in the course of a year they may again rise. A party, too, might from design suffer his property to go untcnanted, or in so negligent a condition as to render it an undesirable occupation, and thereby discourage appli- cations to liirc. This rule is, however, especially insisted on, as the statute on the subject of alimony, (Rev. Laws, 668,) it is said, does not authorize any further process to enforce a decree in this case than a sequestration of the defendant's personal ea- JULY TERM, 1838. 93 Richmond v. Richmond. tate, and the rents and profits of his real estate. If this were undeniably true, it would be mere matter of inference, and by no means conclusive. But I think it may be well questioned, whether the power of the court is limited to such sequestration for enforcing the decree ; for the statute, after giving this power of sequestration, adds these words : " or to enforce the perform- ance of the said decree or order by such other lawful ways and means as is usual, and according to the course and practice of the court of chancery." In the case of Bedell v. Bedell, in 1 Johns. Ch. Rep. G04:, no general rule is laid down, but an al- lowance is made of the full amount of the defendant's annual income for the support of the complainant and one child six years of age. In Miller v. Miller, G Johns. Ch. Rep. 91, while it is stated that the ecclesiastical courts allow for alimony the third, or at least the fourth, of the annual income of the real estate, yet it is very evident that the chancellor fixes a SUTO on the ground of its reasonableness in tho given case. The defendant's property must be estimated at the time of the report of tho master ; for in case of a long-contested suit, to go back to the time of filing the bill, might lead the court into great error. Nor will it answer to be guided by the actual wants of the complainant. They may exceed the amount which the claims of cqu.il justice to both tho parties may warrant, and in fact might work an injury to the true interests of the whole fam- ily, by consuming the estate, and breaking down all incentives to exertion on the part of the defendant. Whatever rules may obtain as to the allowance for the wife, the children should be fully maintained in a manner correspond- ing with the condition in life of tho defendant. The court, in placing them under the charge of their mother, meant to impose no burthens upon her of a pecuniary character. I shall, therefore, exercise the best discretion on the whole case of which I am capable, and make such allowances as appear right in view of the circumstances and condition of this family. It must be borne iii mind, that additional light has been thrown on this case since the master made his report, by new 94: CASES IK CHANCERY, Richmond v. Richmond. evidence, and the statement in writing of the parties themselves, received by consent, and which varies and considerably reduces the estimate of the defendant's property. The Smiley property, which is estimated by a brother of the defendant, doctor Rich- mond, (on whose evidence, from the relation in which he stands to the parties, and the means of his information, I place great confidence,) at three thousand five hundred dollars, and by an- other witness, Mr. Zabriskie, at five thousand dollars, has since been sold under execution at the reduced price of one thousand eight hundred dollars. This is, no doubt, owing to the peculiar embarrassment of the present times, and forms no safe criterion. Yet it all shows how uncertain must be the estimates of real es- tate in the fl actual ing state of the times. The debts of the de- fendant are also considerably larger than the master had supposed, as appears by the admissions of the parties themselves. The old homestead, as it is called, cannot for the present yield any bene- fit to the defendant, as his mother has a life interest in it, al- though now an aged woman In view of all these circumstances^ there ia good reason for reducing the allowances made by the master. I am quite willing, and consider it my duty, to allow this complainant and her children all that the case will warrant. I shall allow the com- plainant, for her alimony and maintenance, the sum of two hundred and fifty dollars annually, and to each of the children, for their support and education, the sum of one hundred and thirty dollars annually, making in all the sum of six hundred and forty dollars payable in half-yearly payments, from the date of the iinal decree. My impression, from looking at the statute, is, that this court has the power at any time, on a change of circumstances, to vary this allowance, by increasing or diminishing it; as the act speaks of " such maintenance and allowance as to the said court shall, //v?ra time to time, seem reasonable and just." And in. the case before referred to, in 6 Johns. Ch. Rep. 92, I find such was the impression of chancellor Kent, on the words of the statute of the etatc of Ncv.--York, which in that respect is the same as JULY TERM, 1838. 95 Richmond v. Richmond. ours. I shall embrace in the order for the allowances here made, therefore, that either party be at liberty to apply, upon a future change of circumstances in the parties, or either of them, for such variation or modification of this order touching said allow- ances, as those future circumstances may dictate to be just. The following decree was accordingly entered : " It is ordered, adjudged and decreed, that the defendant, "Wal- ter M. Itichmond, pay to the complainant, Jane Richmond, or to her order, during her natural life, or until the future order of this court to the contrary, the annual sum of two hundred and fifty dollars, payable half yearly ; that is to say, the sum of one hundred and twenty-five dollars on the thirtieth day of October, and one hundred and twenty-five dollars on the thirtieth day of April, in each and every year, commencing with the day of the date hereof, the same being considered and deemed a suitable allowance, having regards to the circumstances of the parties re- spectively, for her support and maintenance ; and that the de- fendant, "Walter M. Richmond, do within thirty days after ser- vice upon him or his solicitor, of a copy of this decree, give such reasonable security for the payment of said annual sum of two hundred and fifty dollars, as shall bo approved of by George P. Molleson, esquire, one of the masters of this court, for the punc- tual payment of said sum, at the times above specified; and upon his neglect or refusal to give such reasonable security as shall be required by said master, within the time so specified, or upon his default, and that of his surety, in case such surety shall be given, to pay such annual sum at the times when by this de- cree the same may fall due, as above mentioned, that the com- plainant be at liberty to apply to this court to award and issue process for the immediate sequestration of the defendant's per- Bonal estate, and the rents and profits of his real estate, and to appoint a receiver thereof, according to the statute in such case made and provided, or such other process as this court may, un- der tl:e circumstances, deem equitable and just, and may be consistent with the power and authority of the court. 96 CASES IN CHAXCEET, Richmond v. Richmond. "And it is further ordered, adjudged and decreed, that the I former order of this court, touching a monthly allowance to the i said complainant, for her own support and that of her children, be deemed to have ceased as to any further allowance from and after the date of this decree. j "And it is further ordered, adjudged and decreed, by the said chancellor, pursuant to the power and authority vested in this court, and to tho statute in such case made and provided, that the eaid defendant, "Walter M. Richmond, pay to the said com- plainant, Jane Richmond, or her order, until the future order of this court to the contrary, tho further annual sum of three hun- dred and ninety dollars, payable half-yearly, that is to say, the sum of one hundred and ninety-five dollars on the thirtieth day of October, and the sum of one hundred and ninety-five dollars on the thirtieth day of April, in each and every year, commencing with the day of the date hereof, the same being deemed a fit and just allowance for the care and maintenance, education and clothing of her said children, having like regard to the circum- stances and condition of the oaid defendant, and the age and condition of the said children, and for the support, education, clothing and maintenance of said children. And that the said defendant give such further reasonable security as shall in like manner be approved of by the said George P. Molleson, esquire, master as aforesaid, for the punctual payment of the said last mentioned annual sum of three hundred and ninety dollars at the times above specified, which security shall be given within thirty days after the service of a copy of this decree on said de- fendant or his solicitor. And on his neglect or refusal to give such reasonable security as shall be required of him by the said master, within the time so limited, or upon default of said defend- ant and his surety to pay the said last mentioned annual sum, at the times and in the manner last above mentioned, that the said complainant be at liberty in like manner to apply to this court to award and issue process for the immediate sequestration of the property and estate of said defendant, to enforce such pay- ment, or for such other process as may by said court be deem- JULY TERM, 1838. 97 Richmond v. Richmond. ed proper, and shall be consistent with the power and authority of this court. . " And it is further ordered, adjudged and decreed, that this de- cree shall, from the date thereof, be a lien upon the personal and 'real estate of said defendant, in the state of Kew Jersey, and ; that a copy thereof be forthwith served upon the said defendant or his solicitor ; and that either party be at liberty to apply, upon a future change of circumstances in the parties, or either of them, for such variation or modification of this order and decree, touch- i ing the said allowance for alimony and maintenance, and for the support, education, care and clothing. of said children, as such future circumstances may dictate to be just and equitable. " And it is further ordered, adjudged and decreed, that the said defendant pay to the said complainant all her costs which have accrued in the prosecution of this suit, to be taxed by the clerk of this court, and that the said complainant have execution therefor, according to the course and practice of this court : and also, that the said complainant be at liberty to apply to this court for any further order and direction that may be necessary and proper, to carry into full effect this decree." Jons LILXT v. MOSES QDICK. Where a lost mortgage has been established, by a decree of the court, as a val d and subsisting incnmbrance, the subsequent finding of the mortgage in the hands of a third person, cancelled, without farther evidence, will not vary the case nor induce the court to alter the decree. Tearing off the seals of a mortgage, or even its entire destruction, by an tm- i authorized person, will not cancel it. It must be cancelled by consent of the owner. Tins was a bill of review. On the 10th of July, 1824, Mo- 'ses Quick, the defendant in this cause, filed a bill in the court of chancery of New-Jersey, for the foreclosure of a mortgage given to him by George Johnson and Eliza his wife. The bill 14 98 CASES IN CHANCERY, Lilly v. Quick. charged, that the mortgage bore date on the 17th of March, 1813, and was given to secure the payment of a bond bearing even date, given by Johnson to Quick, in the penal sum of two thousand dollars, conditioned for the payment of one thousand dollars, with interest, on the first of May, 1814, and that it was duly acknowledged and recorded. The bill further-charged, that the bond and mortgage had been mislaid and lost, and could not be found : that the principal, together with a large arrear of in- terest, remained due to the complainant ; and that the mortgage had become absolute at law. It further charged, that John Beaumont had? recovered ,a judgment, which was a lien upon the premises, subsequent to the complainant's mortgage, and that the equity of redemption had been conveyed from Johnson the mortgagor, and by sundry mesne conveyances had become vest- ed in John Lilly, who was made one of the defendants in the bill. The bill contained the usual prayer .for foreclosure and sale of the mortgaged premises. To this bill, George Johnson and John Lilly filed a joint and eeveral answer, whereby they admitted the giving of tho bond and mortgage, as charged in the bill, but insisted that, on tho 19th of June, 1815, Johnson and wife sold and conveyed the mortgaged premises, subject to Quick's mortgage, to one Caro- line Branham, for one thousand four hundred and fifty dollars; that subsequently Johnson, in pursuance of an agreement be- tween him and said Caroline Branham, gave his note to Quick, (the complainant,) for the balance due on his bond, took up the bond and mortgage, and cancelled them by tearing off his own and his wife's name ; that he intended to take the mortgage to the office to be cancelled of record, but that it was mislaid by accident and could not be found. It is further alleged in the answer, that Lilly was afterwards employed by Caroline Bran- liain as her agent, to see that the mortgage was cancelled ; that he saw the mortgage in Johnson's possession cancelled ; and that Quick repeatedly admitted that the mortgage had been taken up, .and promised Lilly that it should be cancelled upon the record. The cause came on for final hearing before chancellor Yroom, JULY TERM, 1838. CO Lilly v. Q ,ick. upon the bill, answer, replication and proofs ; and it appearing to the chancellor that the bond and mortgage were duly executed, that a part of the monies intended to be secured thereby still remained unpaid, that the bond and mortgage had been lost or destroyed, and another bond and mortgage made by Johnson to the complainant on other property which proved to be unavail- ing, but that the complainant had not agreed to give up his ori- ginal mortgage, or to relinquish his lien upon the mortgaged premises ; and that the taking of the subsequent bond and mort- gage was not an extinguishment of the lien and incumbrancc of the original mortgage upon the premises therein mentioned ; on the ICth of October, 1839, a final decree was made, estab- lishing the original mortgage as a valid and subsisting lien upon the premises therein contained. John Lilly, one of the defendants, obtained an order for re- hearing in said cause, and also by permission of the court filed a bill of review, on the ground of the discovery of new matter since the decree in the original cause. The matter was heard upon the order for the reliearing, and also upon the bill of review, at the came time. Simpson, and TFeT&zmsow, for complainant. THE CnjuffCELLOE. Chancellor Vrooin, at October term, 1830, made a decree in favor of Moses Quick, upon a bill filed by him, establishing us a valid and subsisting lien, a mortgage given by the defendants, George Johnson and wife, to the complainant, the equity of redemption in which mortgage that bill sought to foreclose, John Lilly, one of the defend- ants, feeling liimsclf aggrieved by tho decision of the chan- cellor, filed a petition and obtained the order of the court for a rehearing in said original cause, lie also, by permission of the court, instituted this suit, to review the decree made in the original action, on the ground of new proof which had 100 CASES DT CHANCERY, Lilly v. Quick. come to light after the decree was made. I am to consider.the case, then, upon the order for a rehearing in the original action, and upon the bill of review, which presents the whole subject at a single view. The case turns upon a question of fact. The bond and mort- gage, which are the subjects of controversy, the complainant alleges he lost or mislaid ; while the defendant insists they were given up by him to be cancelled. As the evidence shall satisfy the mind on this disputed matter, so must the decision of the court be. Chancellor Yroom has gone carefully over all the evi- dence, and given it a very fair and just consideration. I have be- stowed on the evidence, and the opinion of the chancellor, all the care and attention in my power, and I do not see how it is pos- sible to come to any other conclusion upon the case as it stood before him, than that at which he arrived. As that opinion is a very full one, going into the evidence minutely, it would be la- bor lost to repeat the views there expressed. From the whole evidence, I have come to the following con- clusions : 1. That the mortgage was never in good faith given up by the complainant to bo cancelled. He no doubt repeatedly declar- ed his willingness to have it cancelled, if Johnson would pay off the debt to Ilolcomb, which was then the only difficulty in the way. It would be out of the ordinary course of events to sup- pose, that a man who had become bound for the debts of anoth- er, and had the caution to require as his indemnity a mortgage on his property, would relinquish that security voluntarily, and that without taking at the time even a note or any other evidence of the debt due him. Such might have been the case, but it is altogether improbable. 2. The evidence of George Johnson is no way satisfactory. Upon the cross-examination it is manifest that his recollection of the whole transaction is very little to be depended on. He ad- mits that when the mortgage was given up, he, Johnson, agreed to take up the bond and mortgage of Ilolcomb. He says he im- mediately tore the names almost off the papers, and yet when JULY TEKM, 1838. 101 Lilly v. Quick. the papers are found, no part of the names are torn off at all. He says, too, that he then thought tearing off the names was sufficient to destroy it. This witness then admits, that about six months after this, Quick became uneasy, and he gave him other security, that Quick came to his house several times to find the old mortgage. If that mortgage was really cancelled, what could have made him so anxious about it ? The truth is, I have do doubt, that Johnson had the old mortgage, but never upon the fair agreement of the complainant, unconditional, that it should he cancelled. As to giving the new security, nothing could be more natural. He had lost his papers, and he no doubt considered the loss of the papers as fatal that there was an end to that security, and he called for other. This would not defeat his claim on the old mortgage unless it was so agreed, and that upon all the authorities cited. The security was of no higher character, and unless expressly taken with an understanding that the first should be put an end to, cannot affect it, even though the complainant at the time may have supposed all se- curity under it was gone. I was struck with the evidence of Elnathan Stevenson, a witness called by the defendant, on this subject This gentleman was called upon to write the new bond and mortgage which were given by Johnson to Quick in 1821 ; and complainant then said he had held a mortgage, but it was lost, or could not be found, or something to that effect. He says this new mortgage was taken in place, as he understood, of the other. But was it understandingly and plainly agreed by Quick to relinquish any claim he might have on the old mortgage ? No witness says so. 3. 1 consider the distinct and plain acknowledgment in writing made by George Johnson, at the office of Mr. Saxton, as im- portant. This is the main witness relied on by the defendant to prove that these papers were cancelled, and yet by that paper, on the 5th of January, 182-i, he declares, in a formal instrument of writing, drawn up and executed under his hand and seal, in the presence of two witnesses, that he is informed and believes that the said bond and mortgage have been lost or mislaid, and 102 CASES IX OI1ANCET.Y, Lilly v. Quick. were in full force and effect as a security for the sum of five hun- dred dollars. This writing was signed just before the original bill was filed, and after the second bond and mortgage were drawn by Elnathan Stevenson. I see no circumvention or fraud in obtaining this paper. The complainant had learnt that tho loss of a mortgage was not a loss of the security, -if that fact could be proved, and before fining a bill he obtained the acknow- ledgement of the mortgagor that it was, as he believed and was informed, lost or mislaid, and was at all events in full force. The subscribing witness, Mr. Bartles, declares that the paper was read over to Johnson before it was executed, and that ho witnessed it at his request. On his examination, Johnson pro- fesses not to know what he signed at Mr. Saxton's office. IIo .recollects its being read over to him, and upon the paper being again shown and read in his hearing on his examination, he says that is something like what was said at the time he signed it. "When he stated in the paper that the mortgage was lost, he says, he did not mean Quick had lost it, but that it was lost after it came into his possession. What reliance can be placed on this witness, upon such contradictory statements ? To say tho least, it is not that kind of evidence upon which an important decree of this court should be founded. This paper has been objected to, however, by doctor Lilly's counsel, because it was signed by Johnson after Lilly's title to the property was acquired, and there- fore cannot affect his interest. It must be recollected that John- son is the witness of tho defendant, Lilly, and this paper is, therefore, competent^ if for no other purpose, to contradict tho statement now made by the witness, and to showthat he has held different language on this subject at different times. 4. That although it is not necessary that I should be able to satisfy myself how, or when, tliis mortgage came out of com- plainant's hands, so long as I am clear that he never gave it up to be cancelled, yet it would be very desirable to do so. It is most probable, to my mind, that the papers were lost at the time men- tioned in the testimony of Andrew "Wilson. The parties had both been drinking ; they went to stay at Johnson's all night, JOLT TERM, 1833. 103 Lilly v. Quick. and it is quite probable they could not Lave told in the morning with precision what Lad taken place the night before. Johnson, in his evidence, declares it was at his house that the mortgage was given up to him. Being thus satisfied with the decision made by the chancellor in the original cause, it remains to see what effect is to be given to the new proof discovered since the decree. That proof is no- thing more nor less than finding the mortgage itself, in the hands O ^-> O C? ' of Asher Lambert. This gentleman has been examined, and states that he found the mortgage in the same situation in which ho exhibits it, among the papers of Cornelius Coriell, deceased, upon whose estate the witness administered. He saw it first in 1824, but not thinking it of any consequence, never mentioned it to docter Lilly until the May preceding the time of his exam- ination. How this mortgage came among the papers of Mr. Co- riell, does not appear from any thing except hearsay evidence, which was properly objected to, and must be overruled. Tho only other witness examined under the bill of review, is Emley Holcomb. His testimony sheds no light on the case as I can per- ceive, stript as it must be of mere hearsay evidence. There is nothing new, therefore, in the case, except the finding and pro- duction of the mortgage ; but how it came at Mr. Coriell's does not appear. "When the mortgage is produced, the seals are torn off, but the signatures remain on it. We are left as much in tho dark as ever. The tearing off the eeals, by an unauthorized person, will not cancel it, nor indeed its entire destruction. It must bo given up and cancelled by consent of the owner. Tho mortgage Las long been out of his possession, and the same hand that would improperly retain a lost instrument, could take off tho seals. In fact, Johnson swears that he tore the names off Lim- .self. I make no question that Mr. Coriell received the paper fairly so far as he was concerned, but for what object, or from whom, is not shown. It would be natural to look for a paper of this kind, given up to be cancelled, in the hands of the mort- gagor, especially if he took it up ; but here it is found in the hands of a stranger. 104 CASES IK CHANCERY, Lilly v. Quick. I am clearly of opinion, upon the whole case, that the weight of evidence is in favor of the mortgage, and that it has been rightly adjudged a valid and subsisting lien on the mortgaged premises. Upon the original suit, therefore, I see no reason to disturb the decree mado by chancellor Yroom ; and as the bill of review shows no new matter which can vary this result, this bill must be dismissed with costs. Bill dismissed CITED in Trenton BTcy, Co. v. Woodruff^ 1 Gr. Ch. 326 ; Harrison's Ad. v. Johnson. 3 C. E. Gr. 43-1 ; Freeholders of Middlesex v. Thomas, 5 0. E. Gr. 42 ; Dudley v. Bergen, 8 G. E. Gr. 400. STEPHEN VREELAND v. JOSEPH LOUBAT and FRANCIS COTTENETT. The mortgagor having disposed of the equity of redemption, and having no interest in the mortgaged premises, is not a necessary party to a bill for foreclosure. THE bill in this cause was filed for foreclosure of the equity of redemption, and sale of the mortgaged premises. The de- fendants were the purchasers of the equity of redemption, the mortgagor having disposed of his interest in the premises to them. The mortgagor rras not a party. The defendants demurred for want of parties. The cause came on for hearing upon the de- murrer. I. H. Williamson, for complainant. J. D. Miller, for the defendants. For the complainant it was contended, that the mortgagor, having parted with his intertst in the premises, was not a neces- sary or proper party to the bill. The proceeding is in rem. Ho cannot with safety bo made a party. If it appear upon the face of the bill that the mortgagor has no interest, ho may demur ; if otherwise, he may answer, showing that he has no interest, and subject the complainant to costs. JULY TERM, 1838. 105 Vreeland v. Loubat et al. THE CHANCELLOR. It has been usual to make the mortgagor, who has parted with the equity of redemption, a defendant to a bill for foreclosure, but he is not a necessary party. The pro- ceeding is in rem. An account may be taken without him. There is no reason why he should be made a party. The demurrer must be overruled, with costs. CITED in Bruen v. Crane, 1 Gr. ch. 348 / Whittemore v. Coster, 3 Gr eh. 438 ; Savings Ass. v, Vandervere, 3 Stock, 383 ; Harrison's Ad. y. Johnson, 8 C. E. Gr. 425. Executors of FATTOUTE v. HAYCOCK et al. On a bill for foreclosure, against infants and others, whero any of the de- lendants have answered, the complainant cannot enter a rule of course to refer the cause to a master, except by consent of sach defendants as have answered, or their solicitor. THIS was a bill for foreclosure. Part of the defendants were infants. One of the other defendants had answered, and a de- cree, pro confesso, was made against the others at the last term. At the same term, the clerk of the court was appointed guardian ad litem for the infant defendants. An appearance for the in- fants had been entered by the guardian, and a rule of course entered in the clerk's book to refer the cause to a master. Tho master had made his report, and the cause was now set down for final hearing. E. Van Arsdale, for the defendant who had answered, ob- jected to the hearing, and contended that the proceeding was irregular, no consent in writing having been made by the defen- dant against whom a decree had not been made. He referred to Rule 1C. A. Armstrong, for the complainant, in reply. THE CHANCELLOR. The hearing cannot come on. The rule of reference having been entered without the consent of the defen- dant who has answered, the proceeding is irregular. The former 106 CASES IN CHANCERY, Executors of Faitouto v, Haycock et al. rule must be vacated, and a rule now entered, referring the cause to a master. TAYLOR et al. v. GEORGE C. THOMAS et aL Notice of argument left at the solicitor's dwelling-house, in his absence, is good service. No;ice good, though dated on Sunday. Exceptions to the roaster's report must be filed \nthia iglit days. THIS cause was set down for a final hearing upon a master's report. The report was filed June 9th, 1838, Exceptions to the report were filed on Monday, June 18th, nine days after filing the report. On the same day, notice of final hearing was left at the dwelling-house of the solicitor of the defendants, during his absence at Washington. The notice was dated on Sunday^ though served on Monday, W. Hoisted, for the defendants, objected to the hearing 1. Because the notice was illegal, being dated on Sunday. 2. Because the service was irregular. 3. Because the exceptions to the master's report had not been disposed of. lie insisted that there was no rule of the court requiring ex- ceptions to be filed within eight days. That if such rule exists, yet where the eight days expire on Sunday, exceptions filed on the ninth day are in time. That if exceptions were filed a day too late, a strict rule of practice ought not to be enforced to the prejudice of the defend- ants' rights. THE CHANCELLOR. The notice of hearing is good, and the service regular. The exceptions to the master's report are filed too late ; nevertheless, if I were satisfied of merit on the part of the defendants, and that the exceptions wcra not intended for JULY TEEM, 1838. 107 Taylor et al. v. Thomas et al. delay, I would let them stand. As it is, the exceptions must be overruled, and the hearing come on. By consent, the causo was heard upon exceptions to the re- port, and upon final hearing. At this term the chancellor adopted thft following GEITERAI RULE: JSTo other causes will be heard at a special term, except such as are set down by consent of parties, unless ortherwis especially ordered by the court. A demurrer will not be overruled at a spe- cial term, nor will parties be permitted V) use a special term tc expedite a cause out of the usual courre t YuxlsMs by consent. O A S E S ADIUDOED nr THE COURT OF CHANCERY OF THE STATE OF NEW-JERSEY. OCTOBEB TEBM, 1838. JOHN GEST v. SAMUEL FLOCK et au Where a testator by his will devises his lard to tho nse of his wife for life, and directs that it shall bo sold upon the marriage or death of the wife, and the youngest child coming of age upon the death of the testator the fee rests in the heirs. Whether under the will the executors hare the power of making sale or not, unless tho lands are devised to them, they must befora the sale descend to the heirs ; and having so descended, the heirs have the power to transfer their interests in the lands, BO far, at least, as to entitle the alienee to all their rights, whatever disposit on may afterwards be made of them. Where a party has obtained a decree of foreclosure, under which the mort- gaged premises have been sold, it is too late to question the validity of the mortgage. It is not a substantial objection to a deed, that the acknowledgement bears date before the deed itself. The true date may always be shown. Where a sale is directed to be made of lands, and the same person is entitled to the lands that would take the money in case of a sale, and the per oa entitled elects to take land, a court of equity will not disturb that election or compel a sale. Tbe giving of a mortgage by the person entitled, is a dear election on his part to take land. Tho assignee of an hen*, or person claiming an interest under a will, baring an opportunity of acquiring a full knowledge of the cordition of the estate, OCTOBER TERM, 1838. 109 Gest v. Flock et nl. will stand in no bettrr pituaiion iu asking the interposition of this court, I than the heir or legatee himself, BILL filed January 15th, 1835. It states, that Hendrick Schenck, being seized in fee simple and possessed of certain real and personal estate, situate in the township of Lawrence, in the county of Hunterdon, "by his will, bearing date on the 13th of June, 1810, among other things, gave, devised, and bequeathed as follows : " Item I give and bequeath to ray wife the use of all my lands and tenements, during her natural life, she making no waste or destruction thereon ; but if she should marry after my decease, my will is that she receive from my estate the lega- cy which she brought, which was three hundred and fifty pounds ; and then my will is that my wife move off the premises, and the farm then to be rented out until the youngest child comes to the age of twenty-one years. Item In case iny wife accepts the said bequest in lieu of her dower, my will is, that after marriage, if it should so happen, the land still not to be sold until the youngest child comes of age, and then as soon as may be convenient. And also my will is, that immediately af- ter my wife's decease, or as soon as may be, all my estate, of every description, be sold, and the money arising therefrom to be equally divided amongst my children, except as will hereaf- ter appear ; to Robert D. Schenck, Susan Schenck, Catharine Schenck, Eliza Ann Schenck, share and share alike ; and to my son Albert Schenck, one hundred dollars more than any one of iny other children." That on the 28th of July, 1810, the tes- tator died, seized and possessed of the said real and personal es- tate, and leaving his said will unrevoked and in full force. That James Hughes and Henry Dye, the executors therein named, proved the will, and exhibited an inventory and appraisement of the personal estate, amounting to five hundred and twelve dol- lars and ninety-six cents. That the testator left surviving him, the five children named in his will, to wit, Robert D., Susan, Catharine, Eliza Ann and Albert, and his widow, Margaret Schenck. That the widow accepted, in lieu of her dower, the clevises and bequests made to her in the will ; receiving the per- 110 CASES IK CHANCERY, Gestv. Flock et al. sonal property, and entering into possession of the lands de-vised to her. That she never married after the death of the testator. That she died about the first of April, 1831 ; and that Albert, the youngest child, attained the age of twenty-one during the life-time of his mother. The bill further states, that the said Albert Schenck, on the 12th of March, 1831, in consideration, among other things, of six hundred and forty-one dollars, to him in hand paid by the complainant, executed to the complainant a deed of assignment of all that part, share, proportion and dividend of the personal and real estate of the said Hendrick Schenck, which theretofore became due, or which might thereafter descend or become due and payable to the said Albert ; which said deed was afterwards duly acknowledged and recorded in the clerk's office of the coun- ty of Ilunterdon. It insists that the executors, after the death of the widow, and the youngest child's attaining the age of twenty- one years, were bound by the will to sell the lands as soon as it could conveniently be done, and to dispose of the proceeds ac- cording to the direction of the will, and also to account to the legatees or their lawful assigns, for the rents and profits accruing after the death of the widow. That the lands of which the tes- tator died seized were valuable : that the executors might at va- rious tunes have disposed of them advantageously ; and that they ought EC to have done, and have paid Albert's share to the complainant. The bill further charges, that Samuel Flock, one of the de- fendants, is in possession of the lands of which the testator died seized, under pretence of title thereto, and that he refuses to ac- count to the complainant. The bill prays, that the executors may be compelled to exe- cute the trust reposed in them by said will, and in particular, to' sell all the testator's real estate, and to pay Albert's share to the complainant ; also to account for all the rents and profits received, or which might and ought to have been received therefrom, since the death of Margaret, the widow of the testator, and to pay Albert's share thereof to the complainant. That Flock, the oth- OCTOBER TERM, 1838. Ill Gt st v. Flook et nl. er defendant, may be compelled to discover by what title lie claims the premises, and to account for the rents and profits while in his possession, since the death of the said widow. The executors neglected to appear or answer, and a decree, pro confcsso, was taken against them. Samuel Flock, alone, answered the bill. The answer admits, with few exceptions, the material facts charged in the bill ; but states, that the personal estate of the testator proving insufficient to- pay his debts, a part of his real estate was sold for that purpose by his executors, under an order of the orphan's court of the county of Ilunterdon, and that the Baid defendant became the purchaser thereof. That Margaret Schenck, the widow of the testator, under the devise to her in the will of Ilendrick Schenck, remained in possession of the residue of his real estate, consisting of a farm of about ninety- six acres. That being so in possession of said real estate, and the said Albert Schenck having attained the age of twenty-one years, the said Margaret and Albert, on the 14th of October, 1814, by deed of mortgage, conveyed all their right, title and interest in the premises to the said Samuel Flock, to secure to him the payment of a bond of four hundred dollars, with interest, bearing even date, given by the said Margaret and Albert to the said Samuel Flock. That the said mort*are having been ac- *-> o \j knowledged, was duly recorded in the clerk's office of the comity of Iluntcrdon. The answer further states, that the principal and interest of the said mortgage remaining unsatisfied, the said Samuel Flock obtained a decree of this court, bearing date on the 2d of Janu- ary, 1821, for foreclosure and sale of the said mortgaged prem- ises, by virtue of which decree the premises were afterwards sold by the sheriff of Iluntcrdon, struck off to said Samuel Flock for a sum less than the amount due upon the mortgage, and con- veyed to him from the sheriff, by deed dated the 10th of May, 1821. That the said Samuel Flock had subsequently procured, for valuable considerations, from all the other children and heirs of Ilendrick Schenck, releases of all their interest in the said 112 CASES IN CHANCERY, Gest v. Flock et al. real estate, by virtue whereof he became seized in fee of the whole of the said real estate, and remained in the peaceable pos- session thereof, from the date of the sheriffs deed so as aforesaid made to him. The answer insists that the lands, upon the death of the testator, descended to his children and heirs at law ; that they had full power to mortgage, release or convey the same ; that a complete title at law and in equity had become vested in the defendant ; and that the executors were not bound, nor had they any power to proceed to a sale of the said real es- tate. It denies all combination and confederacy. Depositions having been taken by both parties, the cause came on for hearing at July term, 1838, upon bill, answer, replication and proofs. Wilson and Southard) for complainant. JL W. Green and I. H. Williamson, for defendant. THE CHANG ELLOE. The complainant claims to be the own- er, and entitled, under an assignment and transfer, of whatever interest Albert Schenck took under the will of his father, Hen- drick Schenck, deceased. Samuel Flock, the defendant, also claims to bo the owner, and entitled to the same interest, under a mortgage made to him many years before by Albert Schenck, which mortgage ho foreclosed, and under a sale became the pur- chaser of the premises. Whether this interest of Albert Schenck ,in his father's will, was of such a character or not, as to pass by this mortgage, is really the turning question in the cause. It involves the true construction of the will of Uendrick Schenck. The testator, Uendrick Schenck, died in thff year 1810, leav- . ing real and personal estate. The real estate consisted of a farm situated in the township of Lawrence, in the county of Ilunter- don, (now Mercer), in this state. The will, after making cer- tain bequests which aro immaterial for our present purpose gives the use of all tho testator's lands to his wife during her natural life unless she marry again, when she is to leave the farm, and it OCTOBER TERM, 1838. 113 Gest v. Flock et al. is to be rented until the youngest cliild comes of age. The widow never married, and died in the year 1832. The impor- tant clause in the will is the sixth, and is in the following words " In case my wife accepts the said bequest in lieu of her dower, my will is that after marriage, if it should so happen, the land still not to be sold until the youngest child comes of age, and then as soon as may be convenient ; and also my will is, that imme- diately after my wife's decease, or as soon as may be, that all my estate, of every description, be sold, and the money arising therefrom to be equally divided amongst my children, except as will hereafter appear : to Robert D. Schenek, Susan Schenck, Catharine Schenck, Eliza Ann Schenck, share and share alike ; and to my son, Albert Schenck, one hundred dollars more than any one of my other children." It will be remarked in this clause, that the testator does not devise his estate to his executors, nor does he nay by whom it shall be sold. It is a general direction to sell it, upon the mar- riage or death of his wife, and the youngest child coming of age. The object in selling, is plainly nothing more than to distribute, the proceeds among the testator's children. What became of the testator's estate at his death ? His widow had the life estate, but in whom did the remainder vest until the sale, in the executors or heirs ? It clearly vested in the heirs. Where there is no de- vise of the lands to the executors, but a naked power is confer- red upon them to sell, until such sale takes place the right vests in the heirs. The question, whether the executors were the per- sons intended by the testator to make the sale, or whether that power belonged to the heirs, as would be the case in tho absenco of any express or implied appointment of the executors for that purpose, does not appear to me material, in the present case, to be settled. Whether the executors had tin's power or not, unless the lands are devised to them, they must in the mean time descend to the heirs, and having BO descended, they havo tlio power to transfer their interest in them, at all events, so far as to entitle the alienee to all their rights, whatever disposition should afterwards be made of them. Herbert v, &?r of Tutr 1C 114 CASES IK CHANCERY, Gest v. Flock et al. hilly 1 Saxton, 141 ; 11 Vesey, jun. 496 ; 1 Gainers Cases in Error, 16. Had the complainant, under his assignment, been clearly en- titled to Albert's interest in his father's estate, and the executors denied their power to sell, in that event the settlement of the question, whether they had power or not, must have been im- portant ; and my decided impressions are, that upon a fair con- struction of the will, the power to sell is conferred on the execu- tors, but coupled with no interest which can prevent the legal title from vesting in the heirs at law. But the executors have not appeared or answered, and the bill, as to them, has been taken, pro confesso. The only controversy now is with the de- fendant, Flock, upon the validity of his mortgage. The disputes which have arisen upon the question, whether executors have a mere naked power to sell, or a power coupled with an interest, have been to decide whether if one of the ex- ecutors die, the survivor could sell. At common law it is well settled, that a surviving executor may sell on a power coupled with an interest, but not on a mere naked power. The statutes of this state, in Rev. Laws, 226 and 605, have settled with us that question, by giving the surviving executor in all cases pow- er to sell, where the will directs a sale of lands by executors. But the complainant's counsel object to the validity of Flock's mortgage, from matters appearing on its face. 1. Because it bears date the 14th of October, 1816, and yet the acknowledge- ment purports to have been made prior to that time, and on the 14th of June, in the same year. 2. Because of certain erasures and obliterations. It is a sufficient answer to these objections to say, it is now too late to take them, since the defendent has established the validity of this mortgage by a decree of this court, under which he became a purchaser at the sheriffs sale. This decree was obtained against Albert Schenck himself, and that ten years before the complainant pretends to have had any interest in the questions. There is, however, nothing substantial in the objections themselves. A mistake in the date of a deed will not destroy it ; the true date, the time of its actural execu- OCTOBER TEEM, 1S88. 315 Gest v. Flock et al. tion, may always be proved. It is manifest no fraud was in- tended, as the paper could never have been examined without being detected. The erasures are made so as to leave the parts erased plainly to be read. The erasures were of words of sur- plusage. It would seem, also, from the bill, that the complainant be lie ved Al bert to be under twenty-one years of age at the time of executing the mortgage ; but the answer and proof in the cause establish, beyond a doubt, that he was of full age. I consider the mortgage, therefore, good, and that Albert had such a vested interest at the time as might be passed by it, in the hinds of his father. There is another view of this case equally fatal to the com- plainant's pretensions. "Where a sale is directed to be made of lands, and the same person is entitled to take the lands that would take the money in case of a sale, and the party elects to take lands, a court of equity will not disturb that election, or compel a sale. Osyood v. J^ranklin, 2 John, C/t Hep. 21; Amlcr v. Amler, 3 Vesey, 583. The giving of the mortgage by Albert, was a clear election on his part to take land, and up- on no principle can that election be now disturbed. This elec- tion, it appears, was not only made by Albert, but by the whole of the testator's family ; for they all conveyed their shares to the defendant, Flock, about the same time he purchased Albert's fihare at sheriff's sale. If the complainant can defeat the sale of Albert's share, I see nothing to prevent any other member of the family now from milking a similar transfer, and thus deprive the defendant of his entire interest in the lands. The complainant's assignment bears date in 1831, fifteen years after the date of the mortgage ; and whether it was a cash purchase, or taken as security for an antecedent debt, can make no difference. From the evidence, it would seem, the complain- ant was desirous to make it appear as a cash purchase ; for the witnesses to the assignment say they saw the money handed over. This was, no doubt, mere form ; for in the body of the assignment itself, it purports to be taken "in payment and satis- faction of certain debts and demands which he holds against the 116 CASES nsr CHANCERY, Gest T. Flock et al. said Albert Schenck." In either case, the transaction was fair and just on the part of the complainant. With this assignment, standing in the place of Albert, the complainant calls upon the executors, in this suit, to account to him for the testator's estate, and asks a decree compelling them to sell the lands embraced in the mortgage of Flock. Flock purchased and went into posses- sion, under the sheriffs sale, in 1821. Under these circum- stances, is there any equity in the prayer of the complainant ? Why should this court interpose its power to compel a sale of these lands by the executors ? And for what purpose ? To de- prive the defendant of land which he purchased in good faith, and for valuable considerations, and give the proceeds to the com- plainant, who can upon no principle be placed on better ground than the defendant. The fact that Flock had recorded in tho office of the clerk of the county, all his conveyances for the pro- perty, and had been for so many years in the peacable posses- sion, was enough to put the complainant on inquiry, and afford- ed ; him a fair opportunity, before taking the assignment, to in- vestigate the whole situation of the estate. It must be borne in mind, that this application does not come from a creditor of the testator, seeking a just demand against that estate, but is an ef- fort by an assignee of one of the heirs, under an assignment made in 1831, by the aid of this court, to compel a sale of the testator's lands, for the purpose of giving such assignee the pro- ceeds of such sale, and to defeat a bona fide purchaser of those lands under a mortgage made by this same heir, as far back as the year 1816. Such an exercise of the power of this court would work manifest injustice and wrong. With the opportunity afforded the complainant to acquire a full knowledge of the con ^ dition of this estate, I can place him in no better situation than Albert himself would stand in if he was asking the interposition of the court. He knew he had long since conveyed to the de- fendant, Flock, and received his money for the land. After that, it must indeed be a stern necessity that would induce any court to aid him in defeating the title of one purchaser of his property, OCTOBER TERM, 1838. 117 Gest v. Flock etal. end that, too, for the purpose of getting twice paid for the same buds. In every view which I have been able to take of this case, whether upon the dry question of the right of Albert to mortgage the remainder vested in him under the will of his father, or upon the right of the heir to elect to take land instead of money, or upon the general principles of equity and common justice, I can BCC no ground for disturbing the defendant, Flock, in the enjoy- ment of his estate in the lands in question. As to him, therefore, the bill must be dismissed, with costs. CITED in Drew v. Snowhill, 3 Zab, 450; Scudder v. Stout, 2 Stock, 362 ; FluJce v Flule\ Exrs. 1 C. E. Gr. 480 ; Eomain v. Hendrichori Exrs. 9 C. E, Gr. 237. THE TRENTON BANKING COMPANY v. THOMAS L. WOOD- BUFF and others. That ckuse in the charter of the Trenton Banking Company which declares " That the paid corporation shall not directly or indirectly, deal or trade in any thing except bills of exchange, promissory notes, gold or silver bullion, or in tiie sale of goods which shall be the produce of its lands," was design- ed to rcslr.iin the company within its legitimate sphere of banking, and to prevent their embarking in other kinds of business. The company mar, nevertheless, receive and hold bonds and mortgages by way of security for debts due the corporation ; and in the absence of proof to the contrary, the court will presume that the corporation came into possession of such secu- rities 1 iv, fully, and within the scope of their chartered powers. Where a bonl and mortg.ige are bequeathed to a feme covert, for her use free from the debts or control of her husband, and the husband of the legatee being the obligor in th* bond, nnd also an executor of the will, cancels each bond nnd mortgage, without paying the same, such cancellation ia a gross fraud, not only upon the estate committed to his charge, but also up on the rights of the wife, against the effects of which this court will inter- fere for Lcr protection. Eut it seems that in such case, when the testator Lad by the very act of constituting h.s debtor an executor, placed it in his power to practice a fraud upon innocent parties, the court will not inter- pose to protect the rights of a wifr, by cs ablishing the cancelled mortgage to t e prejudice of subsequent mortgages without notice. The mere lict of the destruction of a bond or other instrument, without au- tUority, can never be set np against ihe right of him who has the beneficial interest. 118 CASES IK CHANCERY, Trenton Banking Co. v. Woodruff et. al. It is one of the plainest and most common grounds cf equity jurisdiction, to guard innocent parties, ami especially married woman and infants, against fraud and imposition. Such protection will be afforded to a married woman against her husband. The cancellation of a mortgage on tie record, is only prima facie evidence of its discharge, and leaves it open to the party making such allegation, to prove that it was made by accident, n.istake or fraud. On such proof being made, the mortgage will be established, even against subsequent mortgages without notice. The rule is now well settled, that a trust, either of real or personal estate, may bo created by a direct gift or bequest to the use of the wife, without the in- tervention of trustees, so as to prevent the husband's enjoyment of the es- tate ; nnd equity will sustain such trust, and declare the husband a mere trustee for the use of the wile. A trustee cannot transfer a trust estate to his own use, nor will he be permit ted to make any profit, gain or advantage to himself, out of the tra^t estate in his h aids. . , A notice to the cashier is notice to the bank. He is the authorised agent of the corporation for all purposes within the sphere of their business, A husband cmnot be a witness for his wife, on a question touching her sepa- rate estate. Where the defendants in a cause, by their answer, setup a cancelled mortgage as a subsisting lien upon the mortgaged premises meutiorcd in the bill of complaint, it is incumbent on them to show that the money wns not paid, and thati the cancellation was made wrongfully. The complainants are not bound to prove the fact of payment. J?he awarding of an issue rests in the discretion cf the court, and the powei should bo sparingly exercised. On tlio 24th of September, 1832, tlic complainants filed a bill for foreclosure, against Thomas L. "Woodruff and Ann, his wife, George Woodruff and Zachariah Kossell, trustees of the said Ann Woodruff. The bill states, that on the second day of March, 1821, Thomas L. "Woodruff and Ann his wife, to secure the pay- ment of a bond bearing date the same day, given by Thomas L. Woodruff to Zachariah Rossell, for one thousand seven hundred dollars, payable on the 2d of March, 1822, with interest, exe- cuted to Rossell a mortgage upon the undivided half-part of a house and lot on the north side of Second-street, in the city of Trenton, which said mortgage was duly acknowledged and re- OCTOBER TEEM, 1S3S. 110 Trentou Banking Co. v. Woodruff et al. corded in the clerk's office of the county of Ilunterdon, on thfc day of its execution ; and on the 28th of January, 1832, was assigned by said Rossell to the complainants. That the said Thomas L. Woodruff and Ann his wife, " in order to secure the payment of all and every promissory note then drawn or there- after to be drawn by the said Thomas L. Woodruff, and endors- ed by Elias D. "Woodruff, and discounted at any bank in the state of New-Jersey," executed to the said Elias D. Woodruff, a mort- gage upon the same premises, bearing date on the 17th of Octo- ber, 1823, which was duly acknowledged, and on the 28th day of the same month of October was recorded in the clerk's offico of the county of Ilunterdon. That the said Thomas L. Wood' ruff afterwards drew two promissory notes, amounting to fivo thousand four hundred dollars, which were endorsed by the said Elias D. Woodruff, and discounted by the complainants, for tho use of the drawer, the proceeds of which were received by him. That on the 10th of October, 1834, Elias D. Woodruff died ; and that on the 25th of August, 1827, the last mentioned bond and mortgage were assigned, bygone of his executors, to tho complainants. That on the 1st of September, 1820, the said George Woodruff obtained a judgment in tho supreme court of New-Jersey, againt Thomas L. Woodruff, for five thousand nine hundred dollars, and costs : and that on the 18th of May, 1832, Zachariah Rossell, trustee of Arm E. Woodruff, also ob- tained a judgment against Thomas L. Woodruff, for fourteen thousand three hundred and thirty-seven dollars and twenty-one cents, and costs ; both of which judgments arc liens upon the mortgaged premises. The bill sets forth no other incumbranccs: it alleges that the said bond and notes remain unsatisfied, and prays a decree in the usual form. . The answer of Ann E. Woodruff, and Zachariah Rossell, her trustee, filed on the 9th of March, 1833, admits tho material allegations contained in the bill, and by way of defence, states, that Ann E. Woodruff was the only child of Israel Carle, who being seized and possessed of a large real and personal estate, bj Ins last will and testament, bearing date on the 10th day of 120 CASES DT CHANCERY, Trenton Banking Co. r. Woodruff et al. April, 1822, among other things, gave and devised all his real estate to the said Ann E. Woodruff during her life, and after her decease, he gave all his real estate in the township of Trenton to her two sons, Israel C. "Woodruff and Aaron D. Woodruff, in. eeveralty, in fee simple ; and in the event of tho death of either of his said grandsons, he gave his share to the said Ann E. Woodruff, in fee. lie also devised and bequeathed all the resi- due of his estate, real and personal, to the said Ann E. Wood- ruff, her heirs and assigns, " but neither that nor any other part of his estate, to be subject to the debts or failure of her tJien or any future husband ; '' and of his said will the testator appointed his wife, Lydia Carle, and his son-in-law, Thomas L. Wood- ruff, executors ; who duly proved the same, and took upon them- selves the execution thereof. The answer further states, that the said Thomas L. Wood- ruff, in order to enable him to pay for the mortgaged premises in the complainant's bill mentioned, borrowed of the said Israel Carle, in his life-time, three-thousand dollars, and to secure the payment thereof, executed to^the said Israel Carle his bond, bearing date on the 2d day of March, 1821, in the penal sum of six thousand dollars, conditioned for the payment of the sum of three thousand dollars, in one year, with interest ; and that, as a furcher security for the payment of the said debt, the said Thomas L. Woodruff, and Ann his wife, executed to the Baid Israel Carle a mortgage upon the premises described in the bill of complaint, bearing even date with the said bond. That tho said mortgage was duly acknowledged, on the same day, before Klias D. Woodruff, one of the masters of the court of chancery, which said Elias D. Woodruff is the mortgagee in the second mortgage in the complainants' bill set forth, and was also a sub- scribing witness to tho bond and mortgage given to Israel Carle ; and that the said mortgage, on the 15th day of May, 1821, was duly recorded in tho clerk's office of the county of Hunterdon. That after the death of the said Israel Carle, his executors caus- ed an inventory and appraisement of his estate to be made, amounting to fifteen thousand two hundred and eleven dollars OCTOBEE TERM, 1838. 121 Trenton Banking Co. v Woodruff taL and ninety-six cents, in which was included the said bond and mortgage given by Woodruff and wife to Israel Carle the wholo principal and interest of which then remained due and unpaid. The answer further states, that the second mortgage set forth in the complainant's bill, was in reality given to secure the com- plainants against any loss, or liability to loss, by reason of dis- counting the several notes therein mentioned, and was delivered by Elias D. Woodruff, the mortgagee, to the complainants, or their lawful ofiiccr, on the 6th of November, 1823 ; and that at the same time, Pearson Hunt, esquire, the complainants' cash- ier, gave a receipt signed by himself, in the following woids, to wit : " Trenton, Nov. 5th, 1823. llcceived of Elias D. Wood- ruff, a mortgage executed by Thomas L. Woodruff and wife to Elias D. Woodruff, bearing date October 17th, 1823, and re- corded 28th day of October, 1823, in vol. 10 of mortgages, pages 123 and 4, clerk's office of the county of Ilunterdon. I also admit notice from Elias D. Woodruff of prior incumbrances to Z. Rossell and I. Carle." The answer then charges, that at the time of the execution of the second mortgage mentioned in the complainants' bill, given by Thomas L. Woodruff and Ann- his wife to the said Elias D. Woodruff, and at the time that the said mortgage was delivered by Elias D. Woodruff to the complain- ants, the said E. D. Woodruff and the complainants well knew, and each of them had lawful notice, that the prior mortgage given by Thomas L. Woodruff and Ann his wife to the said Israel Carle, was due and unpaid, and in full force ; and that as well because of its being first executed and recorded, as because the said Elias D. Woodruff and the complainants had duo and lawful notice thereof, the said mortgage became and was enti- tled to priority over the second mortgage mentioned in the com- plainants' bill. That the whole amount of principal and interest of the said bond of three thousand dollars, was still due and ow- ing to the estate of the said Israel Carle, and in equity belongs to the said Ann E. Woodruff, free from the debts or failure of her husband. That the said mortgage is entitled to priority over the second mortgage mentioned in the complainants' bill ; and 122 CASES IN CHANCERY, Trenton Banking Co. v. Woodruff et al. that, if the same has been cancelled or discharged, it has been done without payment or satisfaction, and unlawfully and ine- quitably, and that the said cancellation is inoperative and void. The answer further states, that the said Thomas L. Woodruff was the president of the Trenton Banking Company, and being such president, without receiving any payment or satisfaction of the said bond and mortgage, so as aforesaid given by him to the said Israel Carle, and being the acting executor of the said Is- rael Carle, and a debtor to the estate, and while the said bond and mortgage were due and subsisting, without the knowledge or approbation of the said Ann E. "Woodruff, endorsed a receipt up- on the said mortgage, acknowledging the payment of the money due theron, and cancelled the same ; which cancellation was fraudulent as regards the rights of the said Ann E. "Wood- ruff. That the said Thomas L. Woodruff got into his possession all the assets belonging to the estate of the said Israel Carle deceas- ed, so as aforesaid bequeathed to the said Ann E. Woodruff free from his debts and liabilities, amounting, on the 1st of Septem- ber, 1827, after the payment of all debts and funeral and testa- mentary expenses, to fifteen thousand four hundred and seventy- four dollars and twenty-five cents ; and being otherwise unable to secure the same to the said Ann E. Woodruff, did, together with his wife, (the said Ann E. Woodruff,) by deed dated the first day of February, 1832, convey unto the said Zachariah Rosscll, whatever was given, devised or bequeathed to the said Ann E. Woodruff, by the will of her father, the said Israel Carle, deceased, whether in possession, remainder or expectancy ; in trust, nevertheless, for the sole and proper use and benefit of tho said Ann E. Woodruff, during her natural life, so that the same should not J)C in any wiso subject to, or liable for, the debts, fail- ures, contracts or liabilities of her present or any future husband, and upon divers other trusts in flio said daad contained ; which said deed was duly acknowledged, and on the 14th day of Feb- ruary, 1832, was recorded in tho clerk's office of the county of Tlunterdon. OCTOBER TEEM, 1838. 123 Trenton Banking Go. v. Woodruff et al. Tho answer further insists upon the priority of the mortgage given by Thomas L. "Woodruff to Israel Carle, over the second mortgage mentioned in the complainant's bill, and assents to a sale of the mortgaged premises for the purpose of paying the in- cumbrances in the order specified. The complainants filed their replication, putting the cause at issue ; and the cause came on for hearing at July term, 1838, upon the bill, answer, replication and proofs. Ann E. Woodruff, and Zachariah Rossell, her trustee and next friend, on the 21st of April, 1834, filed a cross-bill against the complainants in the original cause, praying, among other things^ an injunction to restrain them from proceeding at law to recover possession of the mortgaged premises. Under this cross-bill an injunction was issued, and various proceedings had, not material to the points involved in the opinion of the chancellor. Wilson and Southard, for complainants. Wall and Williamson, for defendants. TUB CIIANCELLOE. Thomas L. "Woodruff, being the owner in fee of a moiety of a house and lot of land in the city of Tren- ton, exectaed, in conjunction with his wife, on that property three mortgages. The first bears date the 2d of March, 1821, and is made to Zachariah Rossellj to secure the payment to him of a bond of the same date, for one thousand seven hundred dollars. This mortgage is recorded on the same day it bears date. The second mortgage bears the same date with the first, and is made to Israel Carle, to secure to him the payment of . three thousand dollars. This mortgage is recorded on the 15th , day of May, 1821. The third mortgage bears date on the 17th October, 1823, and is made to Elias D. "Woodruff, to secure to him the payment of any notes which he then had or might thereafter endorse for his brother Thomas, and wliich should bo discounted at any bank in the stato of New-Jersey. Theso mortgages were all given in good faith, and no objection is raised CASES IN CHANCERY, Trenton Banking Co. v. Woodruff et al. against them at their inception. Nor is any question made as to the priority of the first named mortgage to Zachariah Kossell. That mortgage was first recorded, and the answer admits its priority. The first and third mortgages have been assigned to the complainants, who file the bill in this case to foreclose the equity of redemption in the mortgaged premises, insisting that all the principal, and large arrears of interest, are due on the first mortgage, and that there is due on the second mortgage the amount of two promissory notes for large sums, endorsed by Elias D. "Woodruff, and fairly embraced within the terms stated in the condition of the same. The bill does not mention the existence of the second mortgage, but prays a foreclosure and sale of the premises to satisfy the two mortgages belonging to the complain- ants as the only Kens on the property. The counsel of the defendants, on the argument, raised an objection to the right of the complainants, under the terms of their charter, to-cnforce the payment of the first mortgage. This objection arises from the language of the ninth rule in the thir- teenth section of the act incorporating " The Trenton Banking Company," which declares that " the corporation shall not, di- rectly or indirectly, deal or trade in any thing except bills of ex- change, promissory notes, gold or silver bullion, or in the sale of goods which shall be the produce of its lands." The object of this provision was, no doubt, to restrain the company within tho legitimate sphere of banking, and to prevent their branching out into any other kind of business. That this company might se- cure a debt by accepting the transfer of tliis kind of security, was not, and cannot be denied. There was, then, authority for this bank in this way, at least, to become lawfully the assignees of this mortgage. No allegation is made by the answer, nor is it at- tempted to be proved, that the bank came iuto possession of these securities other than within the scope of their chartered powers. Under such circumstances, the only legal or just inference which can bo drawn, is, that the parties came lawfully to be the owners of this bond and mortgage. The main question, however, in the cause, arises upon the an- OCTOBER TEEM, 1838. . 125 Trentou Banking Co. v. Woodruff et al. ewer of Mrs. "Woodruff, the wife of the mortgagor, and Zacha- riali Hossell, her trustee ; and it discloses a mortifying and pain- ful state of facts. It seems that Israel Carle, the owner of the second mortgage, was the father-in-law of Thomas L. Woodruff, and died in a little more than a year after receiving this mortgage, and by his will gave the residue of his estate (which embraced this bond and mortgage) to his daughter, free and clear of her husband, or his debts, and appointed his widow, and the said Thomas L. "Woodruff, his eon-in-law, his executors. The alle- gation is that "Woodruff, availing himself of his situation as ex- ecutor of his father-in-law, upon coming into the possession of his own bond and mortgage, without a dollar being paid, endorsed on the bond that it was paid, and cancelled the mortgage of record ; thereby defrauding his own family of the provision which a fa- ther's kindness had made for his daughter. That such endorse- ment was made on the bond, and that the mortgage was cancel- led on the very day on which the will was proved, is clear from the proofs in the cause, but under what circumstances such can- cellation took place will be further considered hereafter. I shall for the present consider the case upon the supposition that the cancellation was made without any payment, without stopping to enquire how that fact stands upon the proofs in the cause. As between the parties themselves, that is, Thomas L. "Woodruff and the trustee of his wife, the power of tliis court, as well as its duty, to interpose in behalf of a wife, or any other cestui que trust, and arrest the evil arising from so gross a fraud, cannot be questioned. The mere fact of a party destroying a bond or other instrument without authority, can never be set up against the right of him who IKIS the bcncn'cial interest. It may create embarrassment in making the proof, but if the facts arc established, ho will be reinstated in his rights. It ir one of the plainest and most common grounds of equity jurisdiction to guard innocent parties from frauds and impositions, and particularly married women and infants. This will be done, even against the husband. It has been settled in this court, that the cancella- tion of a mortgage on the record is only priina facie evidence of 126 CASES IK OHANCEEY, Trenton Banking Co. v. Woodruff et al. its discharge, and leaves it open to the party making such alle- gation, to prove that it was made by accident, mistake or fraud. On such proof being made, the mortgage will be established, even against subsequent mortgagees without notice. Miller and Stiger v. Wack and others, 1 Saxton, 214 ; Lilly v. Quick, ante, page 97. That part of the will of Mr. Carle which embraces the bond and mortgage in question, is in the following words : " I give, devise and bequeath unto my said daughter, Ann E. "Woodruff, her heirs and assigns, all and singular the residue of my estate, real and personal, but neither this nor any other part of my es- tate to be in any wise subject to the debts or failure of her present or any future husband." It was not denied, that this clause cre- ated a clear trust in favor of Mrs. Woodruff. There was at one time great doubt expressed, whether a trust, especially of personal property, could be created, by a direct bequest to the use of a wife, so as to prevent the husband's enjoyment of the estate, without the intervention of trustees ; but the rule is now well settled, that equity will sustain such trust, either of real or personal estate, and declare the husband to be a mere trustee for the use of the wife. Clancey on Rights of Married Women, 36-8 Hartley v. Harney, 1 Peere Williams, 125 ; 2 Peere Williams, 79,816. "What right, then, had the husband to destroy and cancel these instruments without their payment ? He stood in the relation of a trustee to his wife. Even in his character of executor, he had no"such right : it was a gross fraud upon the estate committed to his charge. A trustee cannot even transfer a trust estate for his own use. 2 Paige, 202. Nor will he be allowed to make any "profit, gain or advantage" to himself out of a trust estate in his hands. Schieffln v. Stuart, 1 John Ch. Hep. 625. In- deed, the books are full of cases showing the arm of a court of equity extended as a protection and shield against the fraud and imposition of trustees. It was asked with force, on the hearing, how this trustrcc could defend himself on a bill filed against him, alleging these frauds? He could not, upon any prin ciple. OCTOBER TERM, 1838. 127 Trenton Bankin T Co. v. Woodruff ct al. As between the parties themselves, I can hardly suppose any question would etfrer have been raised. The case is too palpable, and forces the same conclusion upon the common sense of every man. But the establishment of this mortgage must materially affect the complainants, who claim to be mortgagees without no- tice. If this be so ; if they have really taken their last mortgage ignorant of the one now disputed, they have a strong claim for the consideration of the court ; for as at present advised, I should not feel willing to interpose in a case where the testator had, by the very act of constituting his debtor an executor, placed it in his power to practice a fraud on innocent parties. The question then of notice to the complainants, becomes most important. That Elias D. "Woodruff, the person to whom the complainants last mortgage was made, had notice of the existence of the dis- puted one, is manifest. lie is one of the subscribing witnesses to its execution, and the person before whom the same was acknow- ledged. The disputed mortgage bears date on the 2d of llarch, 1821 : the cancellation took place on the 22d of July, 1822 ; and yet we find, on the 5th of November, 1823, more than fifteen months after such cancellation, the then cashier of tho bank gave a receipt of the following tenor : " Trenton, Xov. 5th, 1823. Received of Elias D. Woodruff, a mortgage executed by Thomas L. Woodruff and wife to Elias D. Woodruff, bearing date Oct. 17th, 1S23, and recorded 28th day of October, 1823, in vol. 10 of mortgages, pages 123 and 4, clerk's office, county of Ilunterdon. I also admit notice from Elias D. Woodruff of prior incumbrances to Z. Rossell and I Carle. (Signed) Pear- eon Ilunt, cashier." This paper, if genuine, must have a strong bearing on this cause. It declares, explicitly and plainly, that at the time of receiving their last mortgage, the cashier was in- formed of the existence of this disputed mortgage, and that it was then a prior incumbrance. This was long after the cancel- lation. The information is also stated to have been received from Elias D. Woodruff, the very man from whom they received this mortgage, and who, from the whole evidence, appears to have known of the existence of the one now disputed, as he witness- 128 CASES IK CHANCEKY, Trenton Banking Co. v. Woodruff et al. ed its execution, and acknowledged it as one of the masters of this court, and who, in his certificate of acknowledgment, de- clares that he made thg contents of the mortgage known to tho parties. The signature of the cashier to the paper is admitted, but the body is not in his hand-writing. The latter clause of the receipt, admitting notice of the two prior incumbrances, is char- ged to have been interlined. There is no evidence of such inter- lineation, except what is drawn from the inspection of the paper itself. I have examined it carefully, and feel bound to say, that I do not see ground for such belief. At all events, there is nothing in the appearance of the paper itself that would justify me in declaring it a forgery. I receive it, therefore, as a genuine pa- per, and take it as it reads. A court must be well satisfied of the facts of forgery, before it can undertake to predicate upon it any important result. It is also insisted, that if genuine, still this paper is no notice to the bank. A notice to a cashier is notice to a bank. This must be the rule, Otherwise it will be impossible to get on in the ordinary course of business. There is no officer so directly intrusted with its concerns, especially the details of business, as the cashier. He is the authorized agent of the com- pany for all the purposes within the sphere of their business. If the individual who signed that receipt as cashier, was now alive, he might possibly place the subject in a different light ; but in tho absence of any explanation beyond what the paper itself affords, I can only take it as its very words import, that lie received the last mortgage with a knowledge of the two prior incum- brances. The receipt is dated the 5th of [November, 1823, and yet it seems the assignment of this last mortgage was actually not nade to the bank until after tho death of Elias D. Woodruff, whose executor made the assignment on the 25th of August, 1827. Some speculation has grown out of this apparent incon- sistency. I do not see that this can in any view vary the case. In any event, the receipt shows a notice at its date. Cut the dif- ficulty, it appears to me, may be easily solved. Tho mortgage ultimately to stand as a security to the bank. Elias I). OCTOBER TEKH, 1838. 129 Trenton Banking Co. v. Woodruff et aL Woodruff was the endorser to the bank, and reposing, as well lie might, confidence in the cashier, it is not unreasonable to suppose he placed the papers in his hands to wait events as they might arise, respecting the notes he had so endorsed. After thv death of Mr. "Woodruff, it occurred properly enough to the cash icr that these papers should be assigned, and the executor accord ingly assigned them. The only evidence on this part of the case as far tis I can perceive, is that of Mr. Titus, the present cashier and that, as he declares himself, is not very distinct. lie ro members that about the time, or shortly after the mortgage was given by Thomas L. Woodruff to Eliza D. Woodruff, he saw the disputed mortgage. Thomas L. Woodruff brought it into the bank, and handed it to Mr. Hunt, the cashier. There had been some discussion whether it had been discharged : it was wrote upon it that it had been discharged. He states that the mort- gage was brought to satisfy Mr. Hunt that it had been dischar- ged, as Ue understood. In his cross-examination, he says, he did not hear the purport of the conversation between Mr. Hunt and Mr. Woodruff at the time ho saw the Carle mortgage hand- ed him. This witness seems rather to infer that Yv^oodruff brought the mortgage there to satisfy Mr. Hunt it was cancelled, than to give what the conversation was, for he says he did not know the purport of their conversation. This conversation must have taken place about the time of giving the receipt, for he says it was about the time or shortly after the mortgage was given by Thomas L. Woodruff to Elias D. Woodruff. That mortgage was given on the 17th of October, 1823, and the re- ceipt is dated the 5th of November thereafter. If Mr. Hunt had,, as it seems he had, received the mortgage subject to the other- two, and there was a discussion about one of them being can-, celled, and that too after Mr. Carle's death, by the execu'tor, who. was also the maker of the instrument, there was, surely, enough to have put the bank on enquiry. If they did not mean to hold this mortgage subject to the one of Carle, he should, and I think would, have taken up and varied the receipt which he had given. The recollection of what transpired, is not sufficiently distinct in ICO CASES IK CHANCEKY, T enton Banking Co. v. Woodruff et c.l. the witness, to overcome the plain written declaration of the cashier, made at or about the same time, that he took the mort- gage subject to the other two. . It is very manifest, the bank did not at this time rest its se- curity for the loans made to Thomas L. "Woodruff, on this mort- gage. They had the endorsement of Elias D. Woodruff, and he took the mortgage for his protection. Afterwards, upon his death, they obtained this assignment, as the only means left by which they could get their money. I consider, therefore, that the bank had full notice of the existence of this mortgage, and recognized it as a valid prior incumbrance to their own, long after the time of its alleged fraudulent cancellation ; and that they cannot, un- der such circumstances, stand in any other better or situation than the party himself could, in resisting the present effort of the trustee to establish this lien on the property. That trustee is now Mr. Ilossell, who has by the act of the parties been intrust- ed with the whole estate of Mrs. Woodruff derived from her fa- ther. It will not do for us to be led away by our strong disap- probation of the conduct of the husband, to disregard the rights of his family. Nor should we allow ourselves to be influenced by the possibility ^ that, through the indulgence of his wife, he may again reap the actual enjoyment of this money. If o, it will be contrary to the express trust. It will be as well the duty as the safety of the trustee, to see that the funds are applied ac- cording to the terms of the trust. Thus far my decision proceeds upon the presumption that Thomas L. "Woodruff never paid off this bond and mortgage. To ascertain this fact by any evidence on which to rest, has been my great difficulty in the cause. The answer sets up the mort- gage. This is the first we hear of it. There can be no doubt that the allegations in the answer setting up new matter, and that affimatively, must be sustained by proof. 1 /Saxton, 230; G Johns. Rep. 559. 560. This is the settled rule. "Wo then look into the depositions, and find that of Thomas L. Woodruff himfjclf, one of the defendants, much relied on. lie was exam- ined by an order of tho court, subject to all legal exceptions. IIo OCTOBER TERM, 1838. 131 Trenton Banking Co. v. \Vojdruffet uL is tho husband of Ann E. Woodruff, in whose behalf ho is calk ed. lie is clearly an inadmissible witness. Is a civil action a husband cannot be a witness either for or against his wife. He cannot be a witness for his wife, from a strong bias in her favor, and from their interests being the same. He cannot be a witness against his wife, as being opposed to the legal policy of marriage. Nor can the husband be a witness for his wife in a question touching her separate estate. Tke cases cited on the argument fully sustain this objection. Davis v. Dinmoody, 4 Term Rep. 673 ; Wyndham v. Chetwood, 1 Burrow, 424 ; Stuart v. Stv<~ art, 7 Jo/ins. Ch. Rep. 229. The deposition of this witness must be rejected, and for all purposes. It was urged that the complainants were bound to show this mortgage paid off. This is not my view of the case, nor is it the view taken in the case in 1 Saxton, before cited. The re- cords show the mortgage cancelled, and the papers, when pro- duced, show on the bond and mortgage an endorsement by the executor that they are paid, and the mortgage has the seals taken off. Under such circumstances, it belongs to the defendants to show that the allegations in their answer are tme, to wit, that Thomas L. Woodruff never paid the money on this mortgage, but against right made the endorsement on and cancelled the pa- pers of record. It is further said, that the mortgage could not have been paid, as Woodruff could not be both payer and re- ceiver. Suppose it proved that on the 22d of July, 1822, the day the payment is endorsed, that Thomas L. Woodruff, out of his own funds, discharged a debt against the estate of Israel Carle for an amount equal to this bond and mortgage, and hav- ing done so, made this endorsement and cancellation. He then \vonld be both payer and receiver, and yet the transaction wouH be honest, and the cancellation right I have looked carefully through the complainant's answer to the cross-bill to see if any admission was there made on this part of the case, but I find none. How, then, do the defendants prove the most essential part of the answer, that Thomas L. Woodruff never paid thif 132 . CASES IN CHANCERY, Trenton Banking Co. v. Woodruff et al. * bond and mortgage, but fraudulently cancelled them ? Resting here, there would be a total failure in the proof. There are, however, some very strong reasons for believing that he never did pay the money. In the first place, the pay- ment purports to have been made on the very day the will was proved, and before it is usual with executors to perform any im- portant business of the estate. It is hardly to be supposed that liis first act, at so early an hour, would be to pay oil so large a debt. In the second place, there is no trace of any payment be- ing made at that time on account of the Carle estate. And in the third place, the receipt of Mr. Hunt, cashier, recognizes the mortgage as a valid and prior incumbrance, more than a year alftcr the alleged payment. There are facts both ways on this question, open to construc- tion and inference, but of themselves not sufficiently conclusive iii my view to found a decree, without the intervention of a jury. Tho matter to be established lays at the foundation of the whole cause, and upon which the conscience of the court should be well informed. There is, in my view, but one safe and correct course, and that is to direct an issue to ascertain the single fact, whether Thomas L. Woodruff ever paid, or not, this bond and mortgage to the estate of Israel Carle. My private views on the subject not growing out of the proofs of the case, cannot be allowed to operate : they may be founded in great error. The power of the court to direct this issue, in a case like the present, is recognized in all the books, and i& expressly author- ized by oar statute. The power rests in discretion, and I agree should be sparingly exercised. Nothing but imperious necessity would induce me to take this course. In a case very like the present, on the first hearing, in 1 Saxton, 206, cliancellor Williamson ordered an issue. In New-York it has often been done. 1 Johns. Cases, 436 ; 6 Johns. Ch. I2ep. 256. Tho cross-bill and answer disclose no new fact, and need not receive any separate consideration. The object of that bill was to injoin the complainants from proceeding in an ejectment to obtain possession of the mortgaged premises. ., OCTOBER TERM, 1838. 133 Trenton Banking Co. v. Woodruff et al. It appeared to me proper, as the case was f ullj argued, to ex- amine it on its merits. If it shall result in a verdict declaring the bond and mortgage to have been paid by Thomas L. "Wood- ruff, the claim of the defendants must end there ; if, that it was not paid, then the mortgage must be established and be paid in the order of its original priority. Let an issue be made up upon the single question, whether Thomas L. "Woodruff ever paid, in whole or in part, the bond and mortgage of Israel Carle, to be tried in the supreme court, on the part of the defendants, with leave to use on that trial the pleadings and depositions in the case, subject to all legal objec- tions to the competency of the witnesses, or the legality of their, evidence unless the complainants shall on their part waive the necessity of any further proof on the point. The question of costs and all other matters are reserved. Issue awarded. CITED in Dock v. Elizabeth Steam Mfg. Co. 5 Vr. 817; Black v. Lamb, 1 Seat. 113 ; Bell v. Fleming's Ears. Id. 494; Black v. Shreve, 2 Beat. 478 ; Banta v. Vreeland, 2 Me Car. 107; Marshman v. Conklin, 2 C. K Or. 288 ; Cramer v. Reford, Id. 384 ; Harrison's Ad., v. John- *m, 3 C. K Or. 434; Freenoldcrs of Middlesex v. Thomas, 5 C. & Or. 42 ; Blauvelt v. Ackerman, Id. 149 ; Carlisle v. Cooper. 6 C. E. Or. 590; Dudley v. Bergen, 8 0. E. Gr. 400. AAEON HAZEN v. CnAErry DUELING, Administrator of JOHN DUELING, deceased, and others. The condition of an administration bond, under the statute of New-Jersey, i not restiictcd merely to the rendering of on account, but is designed t se- cure a faitliful admin stration of the estate. J- is a part of the condition of such a bond, that the administrator shall faith- fully apply the asse s to the payment of the debts ; aud the non-payment of judgment obtained against the administrators may be assignedas a breach of the condition. After the return of nulla bona upon an execution against the administrators, the administration bond is forfeited, ar.d the surety has a right to satisfy tha execution with or without suit upon the bond. Bncb payment is not voluntary, and the party making it may recover it back from the party for whose benefit it was made. A surety in nn administration bond, having satisfied an execution against th estate of the intestate, becomes a creditor of the administrators iu their own right, having paid money for their joint account His remedies n gainst ttu m should be exhausted, before this court can interfere in his behalf to reach the assets of the intestate. 134 CASES IN CHANCERY, Hazen v Darling et al. Con relief be had in this court against the representatives of one of two jo nt debtors, without making the other joint debtor a party, and showing by a return of nutta bona that the money could not be recovered against h*r at law? Qu. It seems, that where the bill charges that one of two joint debtors is insolvent, tho court, especially in favor of a surety, will sustain ;he bill against the representatives of the other. Upon a decree for an account, upon a bill filed by a creditor against an admin- istrator, the account cannot bo taken for the benefit' of the complairian t a'one, but must be for the benefit of all such credit rs as choose tocome in before the master. A decree of this court is a judgment from its date in favor of all the creditors, and they are entitled to be paid rateably unless they have some legal pri- ority. THE pleadings in this case present the following state of facts. John Durling, of the county of Sussex, in the year 1811, died intestate ; and his widow, Charity Durling, and John Tillman, took out letters of administration upon the estate, and gave a bond for the faithful discharge of their duties as such adminis- trators under the act, with the complainant and Amos Shiner as sureties. Jesse Baldwin, having a claim against the intestate, prosecuted a suit in the supreme court of this state against the administrators, and upon the several pleas of the general issue and the statute of limitations, obtained a judgment in the term of November, 1825, for two hundred dollars damages. On this judgment execution was issued to levy the amount, of the goods and chattels of the intestate, in the usual form, to the sheriff o.i the county of Warren ; who returned the same nulla tiona. Af- ter this return, the plaintiff in the said judgment obtained an order from the ordinary for prosecuting the administration bond, and actually commenced and was proceeding in said suit, when the defendant, Hazen, paid the amount due on Jesse Baldwin's judgment, with the costs of thcsuit on the administration bond. Shiner, the co-surety with the complainant, and John Tillman, one of the administrators, are both dead. The complainant, hav- ing thus paid money on the administration bond, as surety for these administrators, filed this bill against Charity Durling, in OCTOBER TERM, 1838. 1C5 ILi/i'ii v. Durliug et al. her character of administrator of her husband, John Darling, and also against the administrators of John. Tillman, the deceas- ed administrator, praying to recover the amount so paid by him, iirst, out of the estate of John Durling, in the hands of Charity Durliug, his surviving administrator, if there be any such estate, and if not, then from the estate of John Tillman, in the hands of his administrators. Charity Durling did not answer, but allowed a decree pro con- fesso, to be taken against her. The administrators, of Tillman answered, and the cause was submitted upon the pleadings and proofs, without argument. J. W. Miller, for complainant. 1. II. Williamson, for defendants. THE CHANCELLOR. The first and most obvious question to be settled in this cause is, whether the administration bond was forfeited. If not, then the complainant paid the money volun- tarily, and the foundation upon which he has based his suit is gone. In the case of the Archbishop of Canterbury v. Wills, 1 Salk. 3 1C, it was held by Holt, chief justice, that the condi- tion of this bond was answered by rendering an account, and was not intended to be a security for the payment of the debts : that a creditor had no right to prosecute this bond, and assign for breach the non-payment of a debt to him. That this should over have been held as a compliance with the terms of the bond, is indeed strange, when the condition requires the administrator not only to account, but " well and truly to administer " the es- tate according to law. Chief justice Spencer, i i the case of 77^? People v. Dunlap, Y&'Jolm*. Rep. 440, has placed this sub- ject, in my opinion on the true ground. In that case there was a judgment and execution by a creditor of the intestate against the administrators, and a return, as in tins case, of nulla lona, and the very point, was raised on the authority of the eae-c in Salkehl, that it was no part of the condition of the lx>wl that 13G CASES IN CHANCEKY, Hazen v. Durling et al. the administrator should pay the debts ; but the judge declared it was, and held it to be a good assignment of a breach in the bond. The chief justice also refers, in that opinion, to other au- thorities, settling the case I think clearly, and upon the only rational and sound, principles. After the return of nulla l>ona on the execution against the administrators, the bond was for- feited, and the surety had a right to pay it with or without suit. The administrators of Tillman were requested to pay it by the complainant, but declined having any thing to do with it ; the surviving administrator did not do it, and the complainant went forward and paid it. The payment cannot be considered as vol- untary, but compulsory, and made after a forfeiture of the bond. I am not ignorant that the supreme court of this state have considered this subject, in the case of The Ordinary v. Robinson and others, 1 Hoisted, 195, and in the case of The Ordinary v. Snook and others, 5 Hoisted, 65. Those cases were designed to settle the course of practice in a suit on an administration bond. They do not deny the doctrine that a creditor may sue the bond, but decide that he cannot assign as a breach the non-payment of his debt. The breach assigned must be, that the administrator has not made a true and perfect inventory, or has not administered the estate according to law. Under this last breach, the not paying the debts of the intestate are embraced. These cases relate to tho forms of proceeding in the common law courts on the adminis- tration bonds, and are not designed to vary in any way the general principles of law relating to the liabilities of parties un- der them. I see nothing in these cases that looks like a denial that a creditor may, in proper form, obtain his remedy on tho bond, and that it is a security to him as well as to the next of kin. In tho case now before me, the suit on the bond is evidently brought under the decision in 1 Hoisted. The breaches assiern- o o cd are, for not filing an inventory, for not administering the es- tate according to law, and for not making a just and true ac- count of the administration. The bill charges that sufficient assets came to tho hands of the administrators of Durling to pay all his debts. The answer admits that ho loft a considerable OCTOBER TERM, 1838. 137 Ilazeii v. Darling et nl. personal estate, but professes to be ignorant of tlie amount. The proofs in the cause show a balance unadministered in the hands of the administrators of two thousand eight hundred and sixty- four dollars and forty-two cents, on the settlement of their ac- counts in the orphan's court. In adjudging, therefore, this bond to have been forfeited, there is no conflict with the decisions be- fore referred to. The complainant is a creditor of Charity Durling and John Tillman in their own right, as having paid money for their joint account. His remedies against them should be exhausted, before this court can interfere in his behalf, to reach the assets of John Durling, the first intestate. If it had been shown that the com- plainant had sought in vain, by suit, to get his money from those, from whom he had a right and was bound to seek it in the first instance, I will not say a bill might not have been so framed as to follow the assets of the first intestate : but until such remedies are sought, I cannot see how relief can be asked in this case. So far, then, as this bill prays an account from the sur- viving administrator of John Durling, of the assets of that es- tate, the bill must be dismissed, but without costs, as she has not appeared or incurred any expenses in the case. I have had much doubt whether the remaining branch of the bill, praying an account against the representatives of Tillman, ought to be sustained, without making Charity Durling a party in her own right, and showing that the money could not be re- covered against her at law, by a return of nullalona. I do not find any case expressly so declaring, but I do find such to be the practice. The right of coming into equity upon the plain case of a creditor against executors, though it has sometimes been done, has been questioned unless there existed some special circumstan- ces calling for the interference of the court. The right has been sanctioned upon the pica of discovering assets, and lord Hard- wickc, in 2 Atk. 3G3, said that ho would not, where Hie parties were thus before him, turn them round to a court of law, for the sake of the expense. Chancellor Kent has sanctioned the genera] doctrine in a very able opinion, in the case of Thompson v. 10 J38 CASES IN CHANCERY, Hazen v. Darling et al. Brown, 4 John. Ch. Hep. 625. That was the case of a creditoi of a firm, (a simple contract creditor,) and the bill was filed against the surviving partner, against whom they had exhausted their remedies at law by a return of nulla bona, and against tLe representatives of the deceased partner. The bill was sustained, and there was a decree against the representatives of the deceased partner. But there were in the case some peculiar circumstances which called for the aid of the court. It would have been more proper to have made Charity Burling a party in her own right, after exhausting the remedy at law ; but it is charged in the bill, and sustained by the evidence, that she was insolvent ; and under such circumstances, and especially in favor of a surety, I have come to the conclusion that the bill should be sustained so far as it prays an account against the ad- ministrators of Tillman. This account, upon well-settled authority, cannot be taken for the benefit of the complainant alone, but must be for the benefit of all such creditors as may choose to come in before the master. A decree of this court is a judgment from its date in favor of all the creditors, and they are entitled to be paid rateably unless they have some legal priority, For the rule on this subject, I refer to the case in 4 Johns. Ch. Rep. G25. I shall order a reference to a master, to ascertain the amount duo the complainant for monies paid by him on the.aforesaid admin- istration bond, and the amount due to all other the creditors of J. Tillman, deceased, who shall come ii} and contribute to tho expenses of this suit ; and that the master report the nature of euch claims, whether by judgment, mortgage or otherwise ; and that the master give reasonable notice, in his discretion, for all such creditors to come in by a certain day. Also, that he take c.:i account of the personal estate of the intestate which hath come to the hands of the said administrators, what is the situa- tion of Gaid administration, and whether they have fully admin- is :crcd or not. All other and further directions are resorvcd. Order accordingly. OCTOBER TERM, 1838. 139 Miller v. Miller. JONATHAN "W. MILLER v. MARTHA MILLER. The admissions of a party on a charge of adultery, are not, as a general rale to be received with much faith. They are competent pooof of the ch .rge ou y when connected with other evidence. It is not necessary that it should be postively proved that a confession of guilt by the wife was made through fear; it may be inferred from the gene- ral conduct of her husband toward her. JONATHAN "W. MILLER, on the first day of April, A. D. 1834, filed a petition, under the act of 13th December, 1824, for a divorce from his wife, Martha Miller, charging her with adultery. The cause was heard upon the petition, answer, and proofs. The facts and circumstances relied on, sufficiently ap- pear in the opinion of the chancellor. Hartwdl and /. II. Williamson, for -petitioner. FrdingUuysen, for defendant. TJIE CHANCELLOR. This is a petition for a divorce under the act of 1824. The cause alleged is adultery. The parties lived together, as man and wife, nearly seventeen years, and had a family of five children. The petitioner states, that shortly after his marriage, from a variety of circumstances, as well as from expressions made by his wife, he was induced to believe her unfaithful to him ; but out of regard to his children, and from fear of the disgrace which would follow a public disclosure of her conduct, he continued to reside with her until the year 1828, when she made to him a confession of her guilt with a jxirticular person, and he separated himself from her. The an- swer of the defendant denies the charge made in the petition, that she had been unfaithful to her marriage vows, but admits that on one occasion she did, from fear of her husband and threats of personal violence, confess that she had had criminal connexion with the person stated in the petition, but that in tho 140 CASES Df CHANCERY, Jiiller v. Miller. same conversation she again denied it, and has ever since and still does deny on her part any charge of criminal conduct.' This answer is not under oath, and could not be, under the provisions of our statute. The whole case turns upon the truth or falsity of these charges, and of this issue the petitioner holds the affirmative. There is only one witness to the fact of adultery offered by the petitioner. That witness is Abraham Anderson. His evidence if to be relied on, proves the case clearly and explicitly. lie states, that in February, 1828, in the morning, after breakfast, he saw the defendant, with "William I). Williamson, in the act of adultery : that Mr. Miller was at home, and breakfasted with his family the same morning : that the house in which the act is alleged to have taken place, was about twenty or thirty feet from the dwelling-house ; and that the road to the barn runs between the two. This witness is a laboring man, working sometimes in one place and sometimes in another ; at one time in Somerset county, at another in Middlesex, and at another on the canal. At this time he is, and at the time of his examination he was, in the employ of the petitioner. There is much in the testimony of this witness, standing nlonc, to create distrust in my mind. The story is of a most unnatural character. That these parties should have committed such an act, under such circumstances, in the day-time, when Mr. Miller was at home, and within twenty or thirty feet of tho dwelling, where they must have been exposed to certain detec- tion, is almost beyond belief ; tin's, too, by a man who then lived with tho family as a teacher, and who, as we may suppose, could have secured a far more favorable opportunity for the ac- complishment of such a purpose. lie says they were in tho house from fifteen to twenty minutes. Tho witness never com- municated it to any person but a negro man, and gives as his 'reason for not telling Mr. Miller that lie had no witness but tho negro. lie never told Mr. Miller down to the very moment of his examination, though he made two memorandums of what he saw at the time, and kept them in his trunk. These memo- OCTOBER TERM, 1838. 141 Miller v. Miller. randums are not exhibited by him. One he gave to the solicitor for the petitioner. This gentleman says, that a paper containing the substance of what the witness has stated, was handed him ; but still it is not produced. He was not bound, certainly, to do so ; but to remove any imputation of fraud in the witness, it might legally and properly under these circumstances have been shown and offered to the. opposite party to use if they thought proper. But I mean to draw no unfavorable inference from this circumstance. Why this man should have made two memoran- dums of this occurence, and yet never have mentioned it to Mr. Miller, I cannot understand. I confess my incredulity in such statements, especially from a witness who from his own ac- count of the matter has no stronger claim to the confidence of the court. It would really be a strange case if this petitioner, who had entertained suspicions for seventeen years, could find no other persons than this man as it would seem a stranger to make proof of misconduct in his wife. "William D. Williamson, the person with whom the adultery is alleged to have been committed, is examined as a witness by the defendant, and in the most positive terms denies the charges made. He uses this strong language on the subject : " Witness never had any improper connections with Mrs. Miller on the hearth, in the room, nor near it, nor in any other place, either by word t act or deed" Thus the only positive evidence of the fact of adultery, is as positively denied by the very man charged with the act. There is gross and palpable perjury in the one or the other of these witnesses. There is no mode by which the evidence can bo reconciled. I am not called upon to say, nor is there any way by which I can say, with whom the crime rests. I confess, my leliefis, that the last witness speaks the truth. Tiie whole story is improbable on the face of it, and is against tlvat character for virtue, which Mi's. Miller appears from the ev- idence to have sustained among all her neighbors for her wliolo life. AM attempt is made to impeach Mr. Williamson, on the ground of his religious belief. Two reputable witnesses have clearly 142 CASES IN CHAXCEEY, Miller v. Miller. shown Ills disbelief of some of the leading doctrines of the church at this day, and that he ridiculed attending religious worship on the sabbath. This evidence, while it affects the character of the witness in his general views on religion, and would constitute, as it seems it did with those gentleman, a good reason against placing their children under his instruction, is not sufficient to destroy his competency as a witness. The conversation of the witness with jndge Howell was of a controversial character a dispute about doctrines and tenets and it is true that the wit- ness exhibited a reckless feeling on these subjects. I do :iot find that he ever denied the existence of a God, or a future state of rewards and punishments. Upon evidence like this, with a witness stating so improbable a story, and that contradicted so explicitly, it cannot be expected that I should be willing to ground a decree of divorce. There is, however, another view to be taken of this case. The defendent has admitted her guilt to her husband. In her answer she declares that she did admit it, but it was done in fear of her husband, and under threats of personal violence, and that she recalled her words in the same conversation. The cause of the petitioner is evidently rested much on this admis- sion. When asked by captain Tuttle, at the time the articles of separation were signed, respecting this admission, the defendant did not deny it as she might have done at that time for it rest- ed between lier and her husband alone but frankly declared she had made die admission, but that it was false, and she would not make it again for her life. These admissions arc not to bo rc-ccivcd, as a general rule, with much faith. They are compe- tent when connected with other proof, but not without. Hefts v. ftctts, 1 Johns. Ch. Rep. 198. The reason assigned is, that there is great danger of collusion between the parties, or of con- fessions Icing extorted. They must and ought to bo received witli jealousy. In the present case there is no reason to believe that there is any collusion ; but is there not, from the M'holc case, the strongest ground for believing that they have been induced by fear? There is, I admit, no positive evidence under what OCTOBER TLTtM, 1838. 143 Miller v. Miller. circnm stances they were made. But why was the admission re- called in the same conversation ? "Why did the defendant say to captain Tuttlo that she would die before she admitted it again? Tho whole character of the petitioner, and his conduct towards Ilia wife, leaves a strong impression on my mind that she has stated the truth in her answer, that she made the admission from fear of her husband. A great many witnesses have been exam- ined, tho neighbors of theso parties. They one and all speak of ]\Irs. Miller as a woman of good and virtuous reputation as subdued wotnan and several of them speak of her as being in fear of her husband. lie is shown to have treated her often rudely, even to blows, and to have left her in tears. Ilis temper 13 represented as hasty, easily put out, and jealous. His own petition declares that he was jealous of her from the first. In- stead of asserting her rights, and taking her own part, she al- ways yielded, and sunk down under his bad treatment. It is not necessary that it should be positively proved that she made the confession under fear : it may be inferred from the general conduct of her husband toward her. Great allowance must be ui-dc for a woman situated as Mrs. Miller was. She ought never, it is true, to have been forced into so indiscreet a course. She was evidently broken down and disheartened. She did, howev- er, correct her error on the spot, but it was too late. Her hus- band seized upon the admission, and has never yielded his grasp. But the parties agreed to separate, and captain Tuttle, with his wife, who was the sister of Mrs. Miller, were sent for. On that occasion Mrs. Miller was willing to give up every thing. Sli3 then signed articles of separation, and left her home, with no other than the nominal provision of one dollar. Is this the course of conduct to be looked for in a hardened woman 2 Had this-bccn her character, she would have insisted on the uttermost farthing. She gave up every thing. She declared her inno- cence and said she signed the articles freely. She acted, in my judgment, like a broken-hearted woman. It is stated by one of the witnesses, that afterwards, at tho 144 CASES IN CHAKCEEY, Miller v. Miller. Baskenridge church, he asked captain Tuttle whether he believ- ed these stories about Mrs. Miller; and he answered that he did not that he believed she was an innocent woman. "Whether, therefore, I look at the positive proof by which this case is attempted to be sustained, at the admissions made by the defendant, or at the general circumstances connected with it, I see no ground for divorcing these parties on the present applica- tion. After carefully reading and examining the whole evidence, I feel bound to declare my decided impressions to be, that the defendant, Mrs. Miller, is the injured party. The evidence does not satisfy me that she has committed adultery. The pe-titioi\ must be dismissed, with costs. Petition dismissed, N"oxE. An appeal was taken by the complainant from the decree in this cause., The appeal was argued at May term, 1839, and the decree of the chancellor affirmed, with costs.] CASES THE COURT OF CHANCERY OF THE STATE OF NEW-JERSEY. JANUARY TEEM, 1839. SAMUEL GABWOOD v. The Administrators and Heirs of WILLIAM ELDEEDGE. S. G. having purchased of the owner certain real estate, subject to two mort- gages, and a judgment, applied the whole of the purchase money to the- satisfaction of the mortgages, being the first iucumbrauces, aud caused, them to bo cancelled and discharged of record. Held, that a purchaser un- der the judgment, took the property clear of the incutnbrancj of tho mort- gages, uiid that 8. (1 was entitled to no relief in equity. It is a well settlel general principle, teat equity will not relieve from the con-, sequences of an act fairly done on a full knowleJge of the facts, thouqh un- der a mistake ofth law. Ignoranlia leg s neminem excusat, .s the general, rule as we'.l in equity as at law. But whera ft mistake has taken place in the facts as well as tho law or where some suppression of the truth, fraud or contrivance has be, -a practise!., equity will interfere. The person paying off a mortgage can be substituted in th? place of the mort- gagee, only, where the mortgage is taken up by a third person, and not. where it is satisfied by the mortgagor himself. A cancellation of a mortgage, and a discharge of record, unless effected, thron h fraud, accident or mistake, is an absolute bar aud discharge of the* mortgage. THE bill in this cause was originally filed by Samuel Gar- wood, against William Eldridge in his life-time. Eldridge hav- 20 140 CASES IN CHANCERY, Garwood v. Adm'rs of Eldridge. ing died intestate during the progress of the cause, the suit was revived against his administrators and heirs at law. The bill charged, that Josiah Smith, being seized in fee of a house and lot of land, containing between nine and ten acres, situate in the county of Burlington, on the 27th of February, 1810, exe- cuted, together with his wife, to "William Hive and John Evans, the executors of John Smith, a mortgage upon said premises, to secure the payment of a bond for throe hundred and seventy dollars, given by Josiah Smith to said executors, bearing date on the 26th day of February, 1810. This mortgage was re- corded on the 9th day of March, 1810, and passed with the bond to Zebedee Wills and Isaac Haines, by assignment, on the 10th day of June, 1817. On the 29th day of April, 1815, Josiah Smith and wife exe- cuted to Aaron Engle, a second mortgage upon the same prem- ises, to secure the payment of a bond of six hundred and fifty dollars, given by Smith to Engle, which was recorded on the 19th day of May, 1815. On the Cth day of January, 1824, Josiah Smith and Mary his wife, in consideration of five hundred dollars, sold and con- veyed the said premises to the complainant. This deed contain- ed a covenant of general warranty, and was recorded on the 27th day of January, 1824. The complainant, in pursuance of an understanding with Josiah Smith, paid to Wills and Haines, in satisfaction of their mortgage, one hundred and forty dollars, and to Aaron Engle, on account of his mortgage, three hundred and sixty dollars, being the residue of the purchase money. The contract for the purchase of the land was made by the complain- ant with Smith on the 151i day of March, 1823, and the exe- cution of the deed was delayed, by the infancy of Smith's wife, until the 6th day of January, 1824. At the time of the pur- chase the mortgages were valid and subsisting liens upon the property, the amount due upon them exceeded the whole pur- chase money, and Smith assured complainant that there wcro no other liens upon the promises. On the 30th day of May, 1822, a judgment was entered up JANUARY TERM, 1839. 147 Gnrwood v. Adm'rs of Eldridge. in the inferior court of common pleas of the county of Burling- ton, in favor of the defendant, William Eldridge, against Josi- r.h Smith, upon a bond with warrant of attorney to confess judg- ment, given by Smith to Eldridge, in the penalty of one thon- eand dollars, conditioned for the' payment of five hundred dol- lars on demand, with interest. A writ of fieri facias was issued upon this judgment, and on the 13th day of April, 1834, the land of Smith which was included in the mortgages above mentioned, was sold by the sheriff, under said execution, and struck off to William Eldridge, for three hundred and thirty dollars. A deed in pursuance of the Bale, was executed by the sheriff to El- dridge on the 19th day of April, 1824. The bill charged, that the complainant was ignorant of 13- dridge's judgment at the time of entering into the contract and talcing the deed from Smith ; that Eldridge was informed of complainant's contract, and also of the execution of the deed by Smith; that Eldridge never informed complainant of liis judg^ mcnt, but encouraged him to make the purchase ; that Eldridge Icncw of the existence of the mortgages upon the property; that complainant paid the purchase money toward the satisfaction of those mortgages, and that he caused one of them to be cancelled of record on the 27th of January, 1824, and the other on the 14th of April, 1S24; that Eldridge delayed proceeding on his execution until the mortgages had been discharged ; that com- plainant was ignorant that by causing the mortgages to be can- celled and discharged, the judgment would become a lien upon the premises, being prior to the complainant's deed, or that he ought to have taken an assignment of the bonds and mortgages to himself, to guard against the judgment of Eldridge. The bill further charged, that the bond given by Smith to Eldridge was given as an indemnity against loss by reason of liis Ixj'mg security for Smith as constable; that the monies ad- vanced by Eldridge had been repaid, and his judgment satisfied, prior to the sheriffs sale ; that Smith was wholly insolvent, so that complainant had no remedy upon the covenants in his deed; and that Eldridge had commenced an action of ejectment 148 G irwood v. Adm'rs of Eldridge. at law, for the recovery of the premises, under his title derived from the sheriff. The bill prayed that the mortgages might be established and confirmed as existing liens and incumbrances upon the premises for the amount of principle and interest paid by complainant, with interest from the date of payment ; that an account might be taken of the amount, and Eldridge decreed to pay the same, or that the complainant might stand sized in the place and stead of the mortgages, and have a degree for foreclosure ; or that El- dridge's deed might be ordered to be delivered up to be cancelled, and he restrained from proceeding at law. An answer was filed by the administrators and the heirs at law, admitting the mortgages, judgment, sheriffs sale, and the eject- ment, as charged in the bill, bt denying the satisfaction of El- dridgc's judgment, and all fraud upon his part, and insisting upon the legal rights acquired by Eldridge under the eherifi's deed. The cause was heard at October term, 1838, upon the bill, fuoswer, replication, and proofs. Watt, for complainant. Kinsey and H. ~W. Green,, for defendants. THE CHANCELLOR. A short statement of facts will present every thing in this case necessary for its decision. Josiah Smith, being the owner in fee of a lot of land of between nine and ten acres, in the county of Burlington, executed with his wife a mortgage on the same, on the 26th of February, 1810, to the executors of John Smith, to secure a bond for three hundred and seventy dollars. Sarah Jones was- also a party to this mort- gage, and there was embraced in it a lot belongingto her. This bond and mortgage was assigned finally to Zcbedee "Wills and Isaac lEames. On the 29th of April, 1815, Josiah Smith and his wife made a second mortgage on tho eamo premises, to Aa- ron Englc, to secure a bond for seven hundred and fifty dollars, ELeso mortgages were both placed on record in the county of JANUARY TERM, 1838. 149 Garwood v. Adm'rs of Eldridge. Burlington, shortly after their execution. On the 6th of Janu- ary, 1824, the mortgaged premises were conveyed by Josiah Smith and wife, the above stated mortgagors, to the complain- ant, for the consideration of five hundred dollars. This money was applied to the payment of the two mortgages on the pro- perty, on which there was then due about five hundred dollars ; upon which, by the consent of both parties, they were discharged and cancelled of record. William Eldridge obtained a judgment against Josiah Smith in the inferior court of common pleas of the county of Burling- ton, on the 30th of May, 1822, and issued execution thereon to the sheriff of that county, returnable to the term of August thereaf ter. This judgment, although long subsequent to the date of the cancelled mortgages, was prior to the complainant's deed, and therefore at law bound the property free and clear of incumbrances. By virtue of this execution the sheriff, shortly after the complainant's purchase, and on the 19th of April, 1824, sold and conveyed the aforesaid premises to William Eldridge, the plaintiff in the execution, for three hundred and thirty dol- lars. From the evidence of John Crispen, the only witness ex. ainincd on this subject, it would seem that the price paid by the complainant was a full and fair consideration for the premises ; and from Eldridge's lying still with his execution, from August, 1822, until after the complainant had discharged the mortgages, as well as from the price paid by him at the sheriffs sale, it is to be presumed that the property would have brought nothing beyond the incumbrances. Under these circumstances, the complainant asks the inter- ference of this court. At law, it is quite certain, he is without remedy ; for although he may have been, as he alleges, without actual notice of the Eldridge judgment at the time he purchas- ed, yet he had constructive notice by the record, and unless the power of tliis court is sufficient to grant relief, the complainant will have lost the five hundred dollars with which he paitl off the mortgages, and Eldridge will have received on his purchase the exclusive benefit thereof. There is then, to my mind, a natural 150 CASES IN CHANCERY, Garwood v. Adm'r.s of Eldridge. justice in the complainant's case, to which I should be disposed to extend relief, if I could do so without disturbing well estab- lished principles. The first ground upon which this relief is asked, is, that the complainant cancelled these mortgages unwittingly, and without a knowledge of the legal effect of that act. It is not from any mistake or want of knowledge of facts, but of the law ; for as to the existence of the judgment, he had, or might have had full knowledge, by using the ordinary and proper precaution of examining the public records. " Ignorantia legis neminem excusat" is the general rule, as well in equity as in law. This rule is not without its exceptions, and it would seem those ex- ceptions are not by any means well settled. The American cases have been strenuous in supporting the general rule, from the great danger of opening a door for so common a pretence. It has been decided that a court of equity could not relieve an obligee when he released one joint obligor, supposing the other to be bound. In the case of JLyon and (mother v. Richmond and others, 2 John. Ch. Hep. GO, the chancellor says : " The courts do not undertake to relieve parties from their acts and deeds fairly done on a full knowledge of facts, though under a mistake of the law. Every man is to be charged at his peril with a knowledge of the law. There is no other principle which is safe and practicable in the common intercourse of mankind.'* The same principle is afterwards recognized in the case of Storrs v. Earlier, 6 John. Ch. Rep. 170. Many of the cases in wliich exceptions to this general rule have been allowed, are those in which a mistake in the facts, as well as the law, has taken place, or some suppression of the truth, fraud or contrivance in the party. In such cases, there can bo no doubt, it is the pe- culiar province of this court to interpose. This whole subject, with a reference to the cases, will be found ably and fully dis- cussed in 1 Storifs Equity, 121 ; in which it will be found, that able judge is tenacious of adhering to the general principle. In 'die present case, I cannot bring myself to believe that the complainant acted under any misapprehension of the law. Ho TERM, 1839. 151 Garwood v. Adm'rs of Eldridge. had purchased the property ; and his plain course, believing as he alleges he did, that the property had no other liens upon it than the two mortgages, was to take them up and cancel them. There is no fraud proved on the part of Eldridge, the judgment creditor. He was not bound to give any more information of the existance of his judgment, than the records of the court furnish. It was the result of carelessness and neglect in the party not to have examined at the proper office for the liens on the property. It is asking too much of the credulity of the court, to believe that a man competent to the transaction of business, and buying pro- perty, should not understand the law upon tearing off the seals and cancelling mortgages of record. It is far more natural to suppose that the complainant, believing these the only incum- brances, intended to relieve his property from them by their dis- charge and cancellation. Upon this ground, therefore, I must deny the complainant the relief here sought. The remaining ground taken by the complainant is, that he should be placed in the situation of the mortgagees ; in other words, that new life and action should be given to those instru- ments, so that they may stand now in the complainant's hands as subsisting liens on the property. There are cases, undoubt- edly, in which courts of equity have, after the discharge of a bond and mortgage, substituted the person who took them up in the place of the mortgagee, and kept them alive. Tliis was expressly recognized in the case of Coster, expartc, 2 John. Ch. Rep. 503. These cases are where the bond and mortgage are discharged by a third person, and not where they are takea up by the obligor himself. In fact, in the case just cited, the chancellor declined making any order for assigning the bond and mortgage, because it had been paid off by the obligor himself. In the present case, the bond and mortgages can hardly be said to have been taken up by a stranger they were virtually taken up by Smith himself. This was done with the purchase money for which he sold the land, and that money extinguished the incuinbnmccs. Smith's deed covenants against al 1 i ncumbrances, and obliged him, therefore, to have them discharged. In such 152 CASES IN CHANCERY, Garwood v. Adm'rs of Eldridge. cases, the courts have refused to interfere. Toulmin v. Steele, 3 Merriv. 221; Parry v. Wright and others. 1 Cond. Ch. Rep. 188. The complainant purchased the property, subject of course to all incunibrances ; and if by his own neglect in exam- ining the public records, he has found himself embarrassed by this judgment, it is his own fault. Was it his intention to can- cel the mortgages? I have no doubt it was. He meant to ex- tinguish the incumbrances ; and should they now be reinstated, it would be against the express intention of the parties. What right has this court to bring to life obligations which Smith him- self, the obligor, has taken up and caused, by the understand- ing of all parties, to be cancelled on the public records ? The complainant purchased only the equity of redemption of Smith in these lands, and he was as much bound to see that the judg- ment was removed as the mortgages. There is nothing in the case looking like fraud or improper concealment of the Eldridge judgment, or mistake in cancelling the papers, but a mere neg- lect of complainant in not examining the records. To interfere in such a case, and put tne complainant in the place of the mort- gagees, would introduce, in my opinion, a dangerous precedent, and encourage parties in the grossest negligence. Should this course be taken, what shall be done with the purchase by El- dridge ? By reason of the property being freed from all ineum- brances, he paid three hundred and thirty dollars for his pur- chase. Is he to lose this money ? Suppose another had pur- chased, could he be affected by it ? And if not, can the plain- tiff in the execution, standing as the purchaser, be any other- wise affected? It must be borne in mind, too, that the complainant not only neglected to have an assignment of these bonds and mortgages made to him, and had the seals torn off as evidence of their being discharged, but caused them to be cancelled on the public records. Our statute (Revised Laws, 464) declares such can- cellation of record, when the mortgage has been redeemed, paid nnd discharged, to be an absolute bar and discharge of the- same. I am aware that this statute has been held repeatedly JANUAEY TEEM, 1839. 153 Garwood v. Adm'rs of Eldridge. not to apply to a case where such cancellation may have taken place through fraud, accident or mistake. In the present case, the cancellation was made without either fraud, accident or mis- take, but with the consent and understanding of all the parties. After the best reflection on this part of the case, and from look- ing into the authorities, I am constrained to think it would be an improper exercise 01 the jurisdiction of the court, to grant the relief asked. The remaining point in the case relates to the Eldridge judg- ment. The complainant alleges that it has been paid off. There is some evidence to that effect. It seems to have been given as an indemnity, and I am willing to have this subject more fully inquired into. I shall, therefore, direct a reference to a master, to ascertain and report whether the Eldridge judgment has been paid, when, and under what circumstances. The question of costs, and alJ other matters, are reserved. Order accordingly. CITED in Bentley v. WMttemore^ 0. E #r. 874, OASES ADJUDGED IS THE COURT OF CHANCERY OF THE STATE OF NEW-JERSEY. APRIL TEEM, 1839. JOSEPH BASSETT and others v. WILLIAM JOHNSON and others. Tho object of an issue at law is to inform the conscience of the court ; and if th court can be satisfied that substantial justice has taken place, the ver- dict will not bo disturbo >. on mere technical grounds. The judge before whom the issue is tried, should not only return tho postea, but go further, and furnish to this court a fair statement of the trial. Hi j certificate has always its weight. It is not necessary that the rep rt of the judge should state the evidence and give a mimito history of t :o trial. All that can be required of him is, th..t ho state the general character of the ev.den. e offered, tlio part objected to, and t e decision made upon those objections, with his charg ) to tho ju y. If any difficulty exist in relation to the report of tee judge, tho court will not for this cause nlonc grant a new trial, but will ca 1 on the judge for an ad- tional report of the case. Where the issue to be determined is, \vhether the erection of a cert in dam "has seriously and permanently affected and injured tho me idows of the complainants lying above it," it is not competent on the trial for the de- f ndant to prove that if (ho d.tm were completed, th& injury complainei of would bo remedied. Upo:i amotion for a nsw trial of an issue at law, it cann t bo objected that tho issue formed is not broad onougli, andth.it other inquiries ought lo hav been iuvol ed in it. An i jury may bo permanent, in the sense of the term used in the issue, without continuing for ever. APRIL TERM, 1838. 155 Biibsett et al. v. Johnson et al. On a motion for a new trial, the defendants cannot complain that tho i-sue was tried by tho justice beforo whom the jury was struck, if they permitted tho jury to be struck and the trial to be had without objection. TIIE bill in tliis cause was filed on the 17th of July, 1835, for an injunction to restrain tho defendants from " obstructing Salem creek, or erecting a dam or stopping therein, and from impeding the flow or fall of the tides in said creek, and from al- tering the same in any manner whatever." The bill charged, that the defendants were engaged in erecting a dam in Salem creek ; that the dam prevented the draining of the meadows of the complainants lying above it, and rendered them useless, caus- ing them to be overflowed, &c. Before granting the injunction, the chancellor directed a copy of the bill to bo served on the defendants, and notice of the ap- plication be given. The motion for the injunction was argued on the 23d of July, 1835, both parties using cxparte affidavits upon the healing ; and on the 8th of August, 1835, the injunc- tion was allowed. Tho defendants having answered, moved to dissolve the in- junction, but the motion was disallowed. At January term, 1836, the testimony having been closed, the cause was heard before chancellor Yroom, upon the bill, answer, replication and proofs ; and on the 8th of April, 183C, the chancellor denied the motion to dissolve tho injunction, and directed an issue, as fol lows : " It is ordered, adjudged and decreed, and the chancelloi by virtue of tho power and authority of this court doth order, adjudge and decree, at the instance and upon tho motion of tho complainants by their said counsel, that a feigned issue be form' cd in the supremo court of judicature of New-Jersey, and tried in the ordinary manner, between tho said Joseph Bassett, Thomas Sinnickson and John Sinnickson as plaintiffs, and Isaac John- son and "William Johnson as defendants, by a jury of tho county of Salem, at tho next circuit court to be holdcn in said county, to inquire, ascertain and determine, by the verdict of said jury, whether tho erection of the dam by tho defendants, mentioned ia th6 pleadings of this cause, has seriously and permanently 150 CASES IN CHANCERY, Bassett et al. v. Johnson et al. affected and injured the meadows of the complainants lying above it ; and that either party may notice the cause for trial ; , and the defendants in the issue may carry down the record by ! proviso, in order that the trial may be had at the ensuing cir- cuit ; and that a special jury will be- ordered by this qourt on the application of either party, subject to the preference given to the plaintiffs by the rules of the supreme court ; and that copies of the depositions, certified by the clerk of this court, be read and received in evidence on said trial, as rebutting evidence or as original evidence, in case the witnesses who testified to the samo be dead, or from sickness or other sufficient cause be unable to attend said trial ; and that no new witnesses shall be produced at said trial, without giving ten days' notice of the intention, with the name, addition and place of abode of such witnesses ; and that all further directions be reserved until the said issue shall be tried, and the postea returned to this court." The issue was tried in the Salem circuit at June term, 1838, before the honorable John Moore White, one of the justices of the supreme court, by a struck jury, who found the issue affirm- atively, in favor of the complainants. Upon the coming in of the postea, with the judge's certificate, &c. at July term, 1808, the defendants obtained a rule to show cause why the verdict should not bo set aside and a new trial granted. The cause was argued at the January term, 1839. The reasons relied upon by the defendants for granting a new trial, sufficiently appear in the opinion of the chancellor. Jejfers, for defendants. A. L. EaJdn, contra. In case pending in this court, when- ever it becomes material to ascertain a particular question of fact, and it cannot bo safely decided upon the evidence produced, the chancellor will direct that the question be tried before a jury in a court of common law, that their verdict may inform and satisfy the conscience of the court. Elm. Dig. 58, sec. 33 ; Rev. APKIL TEEM, 1839. 157 Bftssott ct al. v. Johnson ot nl. 494, sec. 37 ; Bldkds CJi. 319 ; I N&uol. 350 ; 2 Madd. 476 ; 1 Saxton, 205, 215, 427, 433. The form of the issue is settled by order of the conrt, and di- rects the particular-matters which sliall be produced or allowed in evidence. Lldkds Ch. 319 ; 1 Newl. 351. After repeated hearings, wherein the matter came up in every possible shape, the chancellor, before directing tho issue, remark- ed, " That the meadows of the complainants were seriously af- fected, was proved before the injunction was granted, and the weight of evidence confirms it." " The meadows were not co much injured since the dam lias settled." " It is a fact (i. e. the injury) the decision of which, under all the circumstances, is peculiarly proper for the decision of a jury ; and if the fact be once ascertained, whether the erection be or be not a nuisance, there will be but little difficulty in settling the case." "We must yield to the conviction that the chancellor was well apprized of every part of the case, before he settled by his order the particular matters which should be produced or allowed in evidence. Notwithstanding all this, we are met with the com- plaint of the defendants, " that the judge overruled the issue ; the depositions of deceased and absent witnesses were only allowed to be read piece-meal ; that part relative to complainant's remedy was rejected ; that their offers to show the state of the dam, and that the completion of it would benefit the meadows, were not allowed ; that the water ran over the dam ninety feet wide, two to two and a half feet deep, which would not be, if the dam was completed ; and that the meadows were not properly ditched." If the judge did reject such evidence, he most assuredly did right, and the defendants were wrong in offering it, and com- plaining of such rejection. The only possible question or matter that by the rules of law, of practice, or common sense, can be tried or proved, is the issue. "What is an issue f "A single, certain and material point, is- suing out of the allegations or pleadings of plaintiffs and defen dants." 2 Tidd's Pr. C65. " A mere issue of fact, is whero 158 CASES IN CHANCEEY, Trenton Banking Co. v. Woodruff et til. both parties rest the fate of the cause upon the truth of the fact in question." 3 1. Com. 315 ; Jac. LOAD Diet, title, Issue. When the parties had agreed upon the point, that single point only was to be tried, whether the fact was so, and not the mere speculative opinion, &c. how it would be, or what would be the effect on the meadows if the dam was different, or was com- pleted. The complainants came prepared to prove the issue, on their part, to wit, the fact of the injury, and not to combat the ideas or fancies of consequences. Such evidence could not be legally admitted. " The evidence is governed by the pleadings in all cases ; it being necessary to prove what is put in issue, andno more." Tidd, 734:. " The jury are only sworn to try the matter in issue between the par- ties, so that nothing else is properly before them." B.N.P. 298. " The sole end of evidence is to ascertain the disputed fact or point in issue one side or the other and no evidence ought to bo admitted to any other point." 1 Ph. Emd. 126, [131,] 140, [147.] " As the business of trial is to ascertain the truth of the allegations put in issue, no evidence is admissible which does not tend to prove or disprove the issued joined." 1 Stark Eo. 387. The judge was bound to confine the evidence to the single certain point in issue, to wit, whether the erection cf the dam by the defend ants has seriously and permanently injured the mea- dows of the complainants lying above it. Whether the dam erected has injured ; not what would be the consequences of an alteration, amendment or completion of that dam ; not matters of opinion, but a fact ; not effects and consequences, but matters done, past, executed. Tho question was plain : Ha/oe the meadows been injured by the erection of the dam ? To put this matter at rest, however, let us look at the chancellor's order. He ordered that a feigned issue should be formed in the supreme court, and tried in the or- dinary manner, &c. " by a jury of the county of Salem, to in- quire, ascertain and determine, by the verdict of said jury, whether the erection of the dam by the defendants, mentioned in the pleadings of this cause, has seriously and permanently APRIL TERM, 1839. 150 Bussatt ot nl. v. Johns in ot ai. r.flcctcd and injured the meadows of the complainants lying above it." What dam ? The dam mentioned in the pleadings, as it wag then, April 8th, 1836 ; not how it would be. The very fact ol offering evidence to prove that the meadows would not be injured if the dam was completed, is an admission, prima facie, that they aro injured by that dam. Another ground of objection was, " because the defendants were not permitted to read the bill and answer." The chancellor ordered the depositions of the deceased and absent witnesses to be read in evidence, and in such cases the bill, answer, &c. are not permitted to be read. BlaMs Ch. 319 ; 2 Madd. 477. And further : " The court would not permit the law author- ising J. D. to erect the dam, nor his grant to defendants, John- sons." If the right had been the qusstion, then, perhaps, they might complain ; but their right tc dam the creek is neither questioned or doubted. Such a grant has been repeatedly de- cided to be constitutional, (2 Peters, 245, 251, 7 Ibid, 243 ; 3 Story's Com. 250, c&raesenti" The third objection, is to the charge of the judge. The lead- ing object of the charge, which I have carefully examined, is to draw the attention of the jury to the issue before them and the matters necessary for them to determine. After stating the issue, he explains the meaning of the words affected or injured, and of the words serious injury and permanent. Nothing could be moro proper, nor do I see any thing io complain of in the plain meaning conveyed by this charge. The explanation given by i,hc judge to the word " permanent," was most criticised on the /.rgumcnt j but it is surely correct to say that an injury may be permanent, in the sense of the word used in the issue, without continuing for ever. This was all that was intended to be ex- plained. The injury to be permanent, it is repeatedly stated, must be something more than a mere temporary inconvenience ; it must be lasting. Many cases are put, showing a permanent injury, though not continuing for ever, as the common one of cutting down an orchard, although a new one might be planted v/hich might in process of time be even better than the one cut down. I can see nothing in this charge likely to draw the jury from the true question before them, but by its tenor and fair con- struction it was calculated to confine their minds to the very point it was intended they should settle. The fourth objection is, that the jury was struck before the justice who tried the cause. It is a sufficient answer to this ob* jection, that the defendants, by striking the jury and proceeding to trial without objection, have waived their rights now to com- plain. After going to trial without intimating any difficulty on APRIL TEEM, 1839. 103 Dassttt et nL. v. Johnson ot a!. this subject, it would bo against all rule now to allow them to avail themselves of sucli an objection. The last objection is, that the deposition of Benjamin Gris- cum, taken in 1821, was not received as evidence. That depo- sition could have no bearing on the issue, and was properly re- jected. I see notliing in any of the reasons assigned which will, in my judgment, justify me in ordering any further trial of this issue. The case seems to have been fairly settled after a very tedious in- vestigation, and should put an end to the case as far as the issue io concerned, and especially so as the judge who tried the cause is satisfied with it. The motion f or-a new trial must therefore be denied. Motion denied, with costs. . CITED in Black v- Lamb, 1 Beas. 113. JIuon CxsniAcK v. WILLIAM JOHNSON, jun. and others. -\ equity the creditors cf a partnership have a right to be first paid oat of (he partnership property, in preference to the creditors of the individual part- ners. After the debts of a firm ere satisfied, the residue of the property belongs to the individual partners, and can then, and then only, be applied to tho pay- ment of their individual creditors. Whether an iujauc ion ought to issue upon a bill for an account of the part- nership, to restrain the sheriff, upon an execution at law against one of th psriners, from soiling the partnership property ? Qu. As respects third persons, a different rale prevails in regard to silent partner- ships from that which obtains in tho case of open partnerships. At lv-, (he visible partner, if sued alone, cannot plead in abatement, that he hua a dormant partner; and a creditor m ly at hiselcction sue either the visi- ble partner alone, or join any latent partner ho may discover. Those funds shall be liable (to the claim of a creditor) on which the credit is given. In an open partnership, the credit is given to the firm, and to the goods they are possessed of, and a partnership creditor sha.l be first paid oat of them ; bat if the partner be unknown, the credit is given to the visible partner only, and the goods in his possession are supposed to be hU own ; 1C4 CASES IN CIIAKCEK1-, Cammack v. Johnson et al. ind in such case, the discovery of the latent partner cannot give any prefer* ence to a partnership creditor. As between the partners themselves, 'there seems to be no reason to make any distinction in their rights, whether any are dormant or not ; but us to bo public, it is necessary to prevent injustice towards creditors that this differ- i nee should be observed. The execution creditor (in the case of a silent partnership) has his remedy complete against all the efforts of the visible partner, and again3t all the effects which belong to him and his dormant partner, as partners, and it make3 no difference whether the debt was contracted by the debtor on tho partnership account or on his individual account. If the bill of complaint charges the existence of a partnership, without stating its character, an answer by the defendants that the partnership is dormant and unknown to them, is responsive to the bill, and need not be sustained by proof. 1 ho power of dissolving injunctions, as well as of gran ting them, must ne- cessarily rest much in the discretion of the court, and should be exercised in such way as to prevent the restraints by injunction from working unne- cessary delay and injustice ta parties. This court will not sustain an exception to a judgment at law on the ground of irregularity. Receivers, being officers of the court, are at all times entitled to, and must receive, its advice anJ protection. THE corjplainant's bill, filed on the 24th of February, 1838, charges, that the complainant and "William Johnson, jun., in May, 1833, entered into partnership in the business of manu- facturing leather, in the city of Newark. By the terms of the partnership, they were to be equal partners and sharers in the profits of said business, and equally liable for all losses. The business was to be conducted in the name of William Johnson, jun. The partnership continued up till the time of filing the bill, and became liable for a large amount of debts contracted by tho partnership, which are entitled to be first paid out of the part- nership funds. That during the continuance of tho partnership, the said William Johnson, junior, beoame largely indebted on his own individual account, arising out of transactions not connect- ed with tho business of said partnership. That the said John- son, having wrongfully possessed himself of all the partnership JULY TERM, 1838. 105 Cam mack v. Johnson et al. property, exercised entire control over it as if no partnership ex- isted ; and after having so become possessed of the partnership effects, he confessed three several judgments, which were entered up against him in the supreme court ; one in favor of John E. Kcan and Abraham Coates, for two thousand nine hundred and eighty-seven dollars ; one to Robert C. Stoutenburgh, Elihu Day and Alvan Heddeii, for two thousand five hundred and seventy- four dollars and forty-seven cents ; and another to the said Ro- bert C. Stoutenburgh, Elihu Day and Alvan Iledden, for one thousand four hundred and thirty-seven dollars and fifteen cents. That executions were immediately issued upon all the said judg- ments, and put into the sheriffs hands at the same time, with the understanding and direction to the sheriff that neither was to bo considered as having the priority over the others, but that each was to be entitled to a rateable proportion of the proceeds of the sales. That the sheriff had advertised the stock of the said part nership, so being in the possession of the said William Johnson, junior, for sale on the 26th day of February, 1838, (being tw days after the filing of the bill.) That from the fact of sai Johnson having the entire charge of the books, the complaina was unable to tell what proportion of debts due from said fi were included in said judgments, and what proportion consisted of debts due from said Johnson individually and arising out of transactions unconnected with the business of the partnership but the complainant believes, and therefore charges, that a large proportion of the amount of said judgments consists of debts and liabilities arising out of transactions of the said Johnson discon- nected with the business of said partnership, and for which the said partncrsliip is in no way liable. That after the levy under said executions, the said Johnson made sales of the partnership property so levied on, to the amount of nine hundred dollars, as deponent is informed and believes to be true. The bill prays an account of the partnership dealings and transactions, and the appointment of a receiver to receive and collect the partnership debts and monies, to the end that tho same may be applied to the payment of the partnership debts ; 166 CASES IN CHANCERY, Cammack v. Johnson et al. and that the books, accounts, vouchers and securities of the part- nership may be placed in the hands of a master, so that the com- plainant may have access to them. It also prays an injunction against Johnson to restrain him from collecting or receiving any of the partnership debts, or from selling any of the partnership property ; and also an injunction restraining the plaintiffs in said executions, and also the sheriff of the county of Essex, to whom the same were directed and delivered, from proceeding to a sale of the partnership property so levid on as aforesaid, until the further order of the court. To this bill the usual affidavit was annexed. On the filing of the bill, an injunction was issued as prayed for, and an order made, appointing receivers of the partnership property, and also appointing one of the masters of the court to receive and take charge of the books, accounts, vouchers and securities of the said partnership, the parties to have access to the same when necessary. On the 5th of June, 1838, Robert C. Stoutenburgh, Elihu Day and Alvan Hedden, filed their answer to the bill of com- r^int ; to which exceptions having been filed, the said defend- ants, on the 29th of August, 1838, filed a further answer. By their answer they state, that they lived in Newark had repeat- edly transacted business with "William Johnson, junior, in his in- dividual name : that having become indebted to them, lie con- fessed judgments in their favor, as is charged in the bill of com- plaint ; upon which judgments executions were issued and leviea rja.de upon the property in Johnson's possession. They deny all knowledge of the partnership, and state that they never heard of its existence until after the filing of complainant's bill. AVilliam Johnson, junior, also filed his several answer to tho bill. No answer was filed by John E. Keen and Abraham Coatcs, the other defendants. The cause came on for hearing at January term, 1839, upon the application of Robert C. Stoutenburgh, Elihu Day and Al- van Hedden, to dissolve the injunction issued in the cause, and to vacate the order appointing receivers, so far as respects the said APRIL TERM, 1839. 1C7 Cammock v. Johnson et ul. Stoutenburgh, Day and Hedden. The motion to dissolve was heard upon the bill and answer. A. Wfdtefiead and I. II. Williamson, for defendants. O. S. Hoisted and Elias Vanarsdale, for complainant. THE CHANCELLOR. This is a motion in behalf of the de- fendants, Stoutenbnrgh, Day and Co., to dissolve the in junction heretofore issued in this cause, and to vacate the order appointing receivers. The questions which arise on this motion are import- ant in themselves, and must have, in any result to which I may come, a strong bearing on the rights of the parties ; I feel it my duty, therefore, to state fully the grounds of my opinion. The injunction was granted upon the case made by the bill alone. But that, the complainant and William Johnson, junior, were stated to be partners in the manufacture of leather, and co have been so from some time in May, 1833 : that they were to share equally in the profits and losses of the business, and had incurred a large amount of debts, which were entitled to be iirst paid out of the partnership property. The bill further charged, that one of the partners, William Johnson, junior, had become largely indebted on his private account; had possessed himself wrongf ully of the partnership effects, and in his own name con- fessed judgments for a large amount to certain persons, r.nd among the rest to Stoutenburgh Day, and Co.; upon which ex- ecutions were issued, and the property of the h'rm advertised by the sheriff for sale within two days from the time of presenting the bUl ; and that a large proportion of said judgments were for the individual debts of Johnson, and in no way connected with the said partnership. Upon this outline of facts, verified by the complainant, the injunction was issued, and as I still think, properly. The case presented a strong claim for the interference of the court. Tho partnership was supposed to be one of an ordinary character ; and the rule is well settled that in equity the creditors of a partner. 168 CASES IN CHANCERY, Cammack v. Johnson et al. ship have a right to be paid first out of partnership property, in preference to those of the individual partners. The complainant also had a clear interest in insisting that the property of the firm should not go to discharge the debts of his copartner, until all the demands against the firm were satisfied. After the debts of a. firm were satisfied, the residue of the property belongs to the indi- vidual partners, and can then, and then only, be applied to the payment of their individual creditors. This principle will be found fully recognized in the case of Tat/lor v. Fields, 4 Ves. 396; and in the case of JDeveau v. Fowler, 2 Paige, 402. A question has indeed been made, whether an injunction ought to issue to stay an execution at law against one of the partners from Belling the partnership property, for the reason, that such sale could only reach the interest of such partner, which must of course be in the residue, after discharging all the partnership debts : in other words, because the sale could only place the purchaser, as to the property, in the same situation that the de- fendant in the execution was prior to such sale. Chancellor Kent, in the case of Moody v. A. and II. Payne, 2 Johns. Ch. Hep. 548, refused to interfere in such case ; but in 1 Story's fyuity, 628, it will be seen, that learned author reviews this decision, and takes the opposite side of the question, insisting that it is a proper case for injunction. His reasoning is very strong, especially as applicable to personal property. lie says, " It may be extremely difficult to follow the property into the hands of various vendees ; and their lien may perhaps be dis- placed, or other equities ariso by intermediate bona fide sales of the property by the vendees, or purchasers without notice ; and the partners may have to sustain all the chances of any super- vening insolvencies of the immediate vendees." For these rea- sons, to prevent multiplicity of suits and irreparable mischiefs, he js in favor of restraining the sale altogether. "When such men differ, it is indeed difficult to decide; though I confess the reasoning of justice Story, as applied to the case of chattels, ap- pears to mo extremely forcible and just. In the very case now under consideration, to allow the sheriff to go on and sell every APEIL TERM, 1838. 1C9 Cammack v. Johnson et cl. hide of leather to different persons, would render it utterly im- possible for the partnership creditors to get at their rights. But this question need not he decided here, as the defendants pro- ceed on different grounds, and claim the right of selling this property freed from the partnership debts. Stouienburgh, Day and Co. have answered the bill, and by that answer they state, that although they reside and carry on business in the same place, and have had for many years past considerable business with "\Villiain Jolmson, junior, they never knew or heard of the said partnership until the complainant filed his bill in this cause. They state many matters, but those which are important are, that the said partnership was not public or known ; that the complainant kept it a secret ; and particular- ly, that the business was conducted in the individual name of William Johnson, junior, This places the whole case in a new aspect ; and it will be seen that, upon well settled principles of law, a very different rule obtains in silent from that in open partnerships : I mean as respects the public. If men carry on business without any con- cealment as partners, they are dealt with accordingly, and cred- itoi-s understand to whom and upon what property they give tlifir credit ; but to allow a silent, unknown partner, the right of rising up at any tune and embarrassing the claims of others, would work manifest injustice. There would be no safety in business if this might be done. After dealing with a man under the idea that he was Tarrying on business on his own account, and prosecuting demands to judgment and execution, if a secret partner may then, for the first, announce the fact of his being a member of the firm, and claim all the rights of an open partner, there would be no security in trade. At law the-visible partner, if sued alone, cannot plead in abatement that he has a dormant partner ; and a creditor may, at his election, sue cither the visi- ble partner alone, or join any latent partner ho may discover. Iloflfjkinson exparte^ 19 Vesey, 294; Norfolk cxparte, 19 i -y, 436 ; De Mautort v. Saunders, 20 English Com-. Law, 410; Hamper expatfe, 17 Vesey, 410; Latjton e 170 CASES IX CIIAXCEKY, Cammack v. Johnson et al. parte, 6 Vesey, 438 ; Mullet v. Hook, 22 English Com. Law, 259. The case of Lord v. Baldwin, cited on the argument from C Pickering's Rep. 348, reported in 7 American Com. Law Rep. 235, is a very strong case on this whole subject, and the reasoning of chief justice Parker is most satisfactory. The pro- ceeding was in attachment, and therefore reached the property at once ; and the court, although they fully recognized the rule in open partnerships that the creditors of the firm must be first paid, denied any such rule in the case of dormant partners. The true principle is, in. my opinion, laid down in that case ; that those funds shall be liable on which the credit is given. In an open firm, the credit is given to the firm and to the goods they are possessed of, and a partnership creditor shall be first paid out of them ; but if the partner be unknown, the credit is given to the visible partner only, and the goods in his possession are supposed to be his own, and in such case the discovery of such latent partner cannot give any preference to a partnership creditor. As between the partners themselves, I see no reason to make any distinction in their rights, whether any arc dormant or not ; but as to the public, it is not only highly proper, but necessary to prevent injustice towards creditors, that this differ- ence should be observed. The case of French v. Chase in C Greerileaf, ICG, is still stronger. It was there held, that the prior right of a partnership creditor to be paid out of the common property in preference to a separate creditor of either of the part- ners, does not exist in the case of a dormant partnership. Upon a careful examination of the cases on this subject, as well as from their reason and propriety, I am clearly of opinion that the execution creditor has his remedy complete against all the effects of the visible partner, and all the effects which belong to him and his dormant partner as partners, and that it makes no differ- ence whether the debt was contracted by the debtor on partner- ship account or on his individual account. The cases cited arose on disputes between creditors ; but in tho case before me, the complainant, who asks the aid of the court, APRIL TERM, 1839. 171 Cammack v. Johnson et al. i ; himself the dormant partner ; and surely, if creditors cannot claim the appropriation of partnership effects for payment of their demands first, there is less reason for doing so at tho instance of the silent and unknown partner. The step is voluntary with him. 1I choose to place himself in this position, and it is far more just that he should suffer by it (however much that is to be regretted) than innocent traders who have beed kept in the dark as to the true condition of things by his act. Upon the creditors of the firm, there is no other hardship than that which occurs continually when one creditor is preferred by his debtor over an- other. The law authorizes this preference if obtained by way of judgment, and it is practiced every day. Had there been no partnership, they must have been postponed in their demands by je judgments and executions; and there is no good reason v.-hy tho discovery of a partner at this late day, should, in jus- tice and eqiuty, change the rights or remedies of any of tho creditors. Lut it is said by the counsel of the complainant, that the court cannot rely on the defendants' answer to make out this partner- ship as dormant and unknown to them ; that this is not matter responsive to the bill, but new, and must be proved. I am refer- red on this point to the case of Rodgers and others v. Hodgcrs and otJiers, in 1 Paige, 426. There the fraud on which the equity rested was not stated to be in the knowledge of the defen- dants ; they were representatives of the party charged with the fraud, and they answered only as to their knowledge and belief . In this case the matters stated in the answer arc within tho knowledge of the defendants. The answer may indeed bo said to be a response to the bill. The existence of the partnership ia charged in the bill, but of what character is not stated, nor even that any publicity was ever given to it. The answer meets this charge, by declaring that tho first they ever heard of any partner- ship was by tho bill, and by denying that they had themselves any knowledge of it whatever. There is a very important fact stated in the bill and repeated in the answer, that tho business was conducted in the name of William Johnson, Junior, one 172 CASES IN CHANCERY, Cammack v. Johnson et al. of the partners. In one case, cited from 7 American Com. Law Rep. 234, it was held that every partner was to . be con- sidered as dormant, unless his name was mentioned in the firm or embraced under general terms as the name of one of the firm. T^ithout going the length of that case, the fact that the business was conducted in the name of one of the partners, without even the addition of the word " company," is a strong corroboration of the facts stated in the answer, and was in an especial manner calculated to blind tho eyes of the public. This judgment was obtained in February, 1838, and the de- fendants' amended answer was filed in August last, since which time no depositions have been taken, or any steps to bring the cause to a hearing. The power of dissolving injunctions, as well as that of granting them, must rest, necessarily, much in tho discretion of the court, and should be exercised in such way as to prevent the restraints by injunction from working unnecessa- ry delay and injustice to parties. Entertaining no doubt, from the whole case, of the truth of the answer in this important par- ticular, and after carefully examining the charges made in the bill, and believing the law of the case to be with the defendants, I cannot think it right to continue this injunction until the ac- counts between these partners are settled. They have acquired a preference by their executions at law, which, after a full hear- ing, I believe them entitled to. The answer meets the equity of the bill. In addition, the answer of William Johnson, junior, has been read by both the parties on the argument, in which ho states, that the partnership was designedly carried on in his name to prevent tho public from knowing that the complainant had any interest in it ; and that the connection was a matter entirely between themselves, and 1 unknown, as he believes, to any of the dealers and creditors of the firm. An exception was taken on tho argument to the judgments oi Stoutenburgh, Day and Co. They are not charged in tho bill to bo fraudulent, nor is there any thing in the case to show them to be so. How far they arc liable to exceptions from irregularity, it is not tho province of this court to decide. If any objection APRIL TERM, 1839. 1T3 Giimmack V. Johnson < t al. is to be made to them on that account, the court in which they were entered is the proper tribunal in which to seek the redress. The injunction must, therefore, be dissolved, so far as it stays proceedings on the two executions at law in favor of Stouten- burgh, Day and Co., with costs. The receivers wiJlbe directed to restore to the sheriff the property taken from him on which he had levied, upon being legally discharged and receipted for tho same ; and the sheriff will restore to the receivers any surplus in his hands, after satisfying those executions. As there will, in this case, remain other property in the hands of the receivers, and they will have further duties to perform, any additional or- der respecting them is unnecessary. Being the officers of tho court, they are at all times entitled to, and must receive, its ad- vice and protection Injunction dissolved. CITKD in Linford v. Linford, 4 Dutch., 118. CHARLES OAKLEY v. The President, Directors and Company of the PATEESON BANK. On a proceeding against a company, under the sixth section of the act en- titled "An act to prevent frauds by incorporated companies, "passed Febru- ary IGth, 1829, the great nnd primary fact to be ascertained, is the insol- vency of ihe company. That lays nt the foundation of tho whole procce '- ing, and unless satisfactorily made out, the court has no right to inter- pose. The provisions of the seventh section of the act, arc not to be understood as restricting the court to any particular mode of proof in ascertaining tho insolvency of a bank, but as superadding certain tests which shall in all cases constitute full evidence of such insolvency. A bank may bo insolvent, without any of the events happening which are stated in the seventh section of the act; and although some of those marks of insolvency may Lave occurred, yet the bank may, upon further proof, be shown to bo sound and safe. Tho court may act upon tho tests given in this section, or they may go further and look beyond them, if they see reason to do so, in coming to a satisfac- tory conclusion as to the solvency or insolvency of tho company. A bank without fun Is for the redemption of its notes, and depending on indi- 174 CASES IN CHANCERY, Oakley v. Paterson Bank vidual resources and exertions to provide funds for the redemption of its no'.es, rather than upon the immediate ability of the institution i-iself, is insolvent within tha true intent and meaning of the act. Tae net requires that the bank should be at all times prepared to discharge all demands presented for payment: and it can never be freed from the charga of insolvency upon any supposed ability of realizing from its means enough to pay its debts at a future day. The act entitled "An act to restrict the circulation and discounts of the Pater- son Bank for the time being, " passed February 1st, 1838, did not exempt tl at bank from the operation of the general act of February 16th, 1829. The authority of appointing receivers of an incorporated company, under the act of February ICth, 1829 is a delicate one, and should be cautiously exer- cised. It by no merns follows, that, because an injunction is granted, re- ceivers should be appointed. That one of the directors is indebted to the bank ; that he is security for hia son, who was formerly cashier, and that he is using means to avoid respon- sibility in that i espect, and that there is division and discord in the board of directors, affords ns just ground for divesting the board of the property and vesting it in receivers. In the appointment of receivers, the court will not rest upon affidavits stating, as matters of belief, that great frauds have been committed against the bank, without stating by whom committed, or in what those frauds consist. Under the statue, the complainant may, upon any new state of facts, renew his application for the appointment of receivers. ON the 18th of Febmaiy, 1839, Charles Oakley filed his bill of complaint against the President, Directors and Company of the Paterson Bank, for an injunction and the appointment of receivers, under the act, entitled, "An act to prevent frauds by incorporated companies," passed February 16th, 1829. The bill, after referring to the act of incorporation, and the several other acts relating to the bank, and stating generally the time and mode of its going into operation and transacting its business, charges that the principle part of the capital of the bank had been lost by enormous loans to Benjamin Rathbun, of Buffalo : that about twenty-seven thousand dollars had been loaned by L. S. R., the late cashier, without the knowledge of the board, to an agent of Rathbun, which was to have been secured by an assignment from Rathbun to certain of his creditors ; but that the claim of the bank for that sum was contested, on the ground APRIL TERM, 1839. 175 Oak >y v. P. terson Hank. that the late cashier had taken usurious interest. That L. S. R., tlic lato cashier, had given bond as cashier in five thousand dol- lars, with A. R., his father, as security ; which bond was in the 1 uuids of D. K. A., one of the directors of said bank. That the circulation of the bank had been reduced to two thousand five hundred dollars. That the bank claims a large amount against said A. K., who is one of the directors ; and that said A. R. is endeavoring to obtain from the board of directors an order for the sale of all the claims of the bank against Rathbun, amounting to ninety-eight thousand dollars, for the inadequate sum of two thousand dollars, in order that the said A. R. may be relieved from his liability as security on said bond of L. C. R., the late cashier. That there are no funds in the bank to meet the bills of the bank. That on the 18th or 19th of February, 1839, bills of said bank were presented at the counter of the bank, to the president, who was acting as clerk, in the presence of the cash- ier, and payment thereof demanded, within the usual and proper hours of business; and that payment thereof was then and there refused, the president answering that they had no funds. That the bank then stopped payment, and have not since that time paid any of their bills, although they have been frequently presented for payment. That the bank has refused to redeem the same in any way ; and that there are no assets of the bank from which money to any amount can be realized, except from the said claims against Rathbun and A. R.; and that com- plainant is a large stockholder. The bill prays an injunction, and the appointment of receivers for the purposes specified in the act. All the material charges of the bill, excepting that the bank had refused to redeem its bills and had stopped payment, and that complainant is a stockholder, arc made upon the informa- tion and belief of the complainant. The bill is accompanied by an affidavit of the complainant in the usual form, and also by an affidavit of the cashier of the bank, stating that the bank had refused to redeem its bills when presented at the counter and payment demanded during the usual hours of business, the presi- 17G CASES IN CHANCERY, Oakley v. Paterson Bank. dent saying they liacl no funds, and that the funds of the bank are exhausted. Upon filing the bill, an injunction was issued, as prayed for. The cause came on for hearing on the 14th of March, on the ap plication for the appointment of receivers, and also upon a mo- tion, on the part of the defendants, to dissolve the injunction. It appears that affidavits were taken and used on the argument, but the affidavits are not on file, nor does it appear whether they were taken exparte or upon notice, or in pursuance of an order of the chancellor. The opinion was delivered on the 18th of March, 1839. A. S. Pennington and E. Vanarsdale, for complainant. DicJcerson and I. H. Williamson, for defendants. THE CHANCELLOR. This is a proceeding under the act en- titled, " An act to prevent frauds by incorporated companies," passed 16th of February, 1829. No question can be raised as to the general powers of the court to interfere with corporations, for the whole structure of the bill confines it to a case under the statute, and the jurisdiction of the court must, therefore, be derived from that source alone. The sixth section of the said act authorizes the chancellor, whenever any incorporated company shall bec'ome insolvent, up- on the application of either creditor or stockholder, to restrain by injunction such company from the further exercise of any of the privileges or franchises granted by its charter. The great and primary fact to be ascertained, is the insolvency of the com- pany. That lays at the foundation of the whole proceeding, and unless satisfactorily made out, the court has no right to in- terpose. I do not understand the provisions of the seventh section of the act, as restricting the court to any particular mode of proof, in ascertaining this important fact in the case of a bank, but as snpcradding certain tests, which shall in all cases constitute full evidence of such insolvency. It was seen that in the case of APRIL TERM, 1839. 177 O.ikl' y v. Patersou Bank. bank, it might bo very difficult to obtain such a knowledge of its afrairs us to enable the court to say whether it was actually insol- vent or not ; it was, therefore, thought expedient cxplicity to state what Icind of proof should be deemed sufficient for that purpose. A bank may be insolvent without any of the events happening which arc stated in the seventh section ; and, although sonio of those murks of insolvency may have occurred, yet the bank may, upon further proof, bo shown to be sound and safe, Tho court may net npon the tests given in this section, or they may go fur- ther and look beyond them, if they see reason to do so, in coming to a satisfactory conclusion as to the solvency or insolvency of the company. In the present case, there is abundant reason for declaring this company insolvent within the meaning of this act, as well upon the tests given in the seventh section, as upon the whole case dis- closed by the evidence. By the oath of the cashier affixed to the bill, ho declares the funds of the bank to be exhausted, and tint they have had no funds since the 19th of February last. The bank has refused recently, in two or three instances, to pay its notes when presented. It is said, however, that as one of the di- rectors had promised to furnish private funds f or the redemption of the notes of the bank, some others of the directors, to try whether he had done. so, embraced an opportunity when ho was in the "bank to have these bill presented by a third person. This being a stratagem to ascertain another fact, might with propriety be disregarded, as not being such a presentation and refusal as is contemplated by the act. But going behind the form of the transaction, it discloses a state of things wliich proves beyond all doubt that the bank was without funds, and depending entirely on the private funds of the directors. It is plain that the directors have been in the habit of depending more on their individual resources and exertions to provide funds for the redemption of the notes of the bank, than upon the immediate ability of the institution itself. But for these exertions, it must have long since ceased to pay, and been put an end to. That a bank thus cir- 24 173 CASES IK CHANCERY, Oakley v. Paterson Bank. cmnctanced is insolvent within the true intent and meaning of the act, I entertain no doubt. Every provision in the act calls for the bank being at all times prepared to discharge all demands presented for payment ; and it can never be freed from the charge of insolvency upon any supposed ability of realizing from its means enough to pay its debts at a future day. It is insisted, however, in this case, that by the act of the let of February, 1838, this particular bank was placed in a dif- ferent position from other institutions, and exempt from the ope- ration pf the act on which this suit is founded. I do not so con- cider it. There is nothing in the title or preamble, or in the enacting clause, that can lead to such a conclusion. The re- turns made to the governor by the different banks in this state, under a particular law, at a time of great depression and alarm in the money market, opened to the public the true condition of the banks, and among others of the Paterson bank. It was Been that their funds were locked up. And to avoid embar- rassment to the public, the sole design of the act was to prohibit further issues and discounts. So far as it went, it was a partial injunction by legislative enactment, and can never, by any forced construction, have been intended to prohibit the chancellor from going further, in case the company come within the scope of the former acts regulating banking companies. It would have been strange indeed, if the very embarrassments of a com- pany, as shown by the exhibit they made, should have induced the legislature to exempt them, by a particular act, from the op- eration of a law, the object of which is to guard the public against injuries arising from their insolvency. This company must, therefore, stand in my judgment, as all other companies, no way relieved by the act of 1838 from the operation of the general act under which this suit was instituted ; and, by the evidence, it is shown to be insolvent within the true intent and meaning of that act. I am now moved, under the eighth section of the aforesaid act, to appoint receivers to take charge of the effects and wind up the concerns of this bank. This I am authorized to do, " if APRIL TERM, 1830. 179 Oakley v. Patersnn Bank. f ho circumstances of the case and the ends of justice require it* This authority is a delicate one to be exercised, and I thought proper, before ctoing eo, to hear counsel, and to be possessed of tho whole case. The effect of appointing receivers is to tako the property out of the hands and control of those persons to whom the ctockholders (and in the present situation of the bank they ere the persona principally interested) have confided it. After the best reflection in my power to bestow on tho subject, I have come to the conclusion that receivers ought not to be appointed. It by no means follows, that, because an injunction is granted receivers should be appointed. They are independent questions. Circumstances may call for the suspension of tho operations and business of a bank, while the directors then in charge of its affairs may be in no respect implicated, and they may be of all others the best calculated to wind up its concerns, and that with the least expense to the parties in interest. There is one redeeming feature in tho case of this bank, vrhich has made a strong impression on my mind as to the con- clusion I ought to como to. When Rathbun failed, in August, 183C, he was indebted to this bank in ninety-eight thousand dol- lars, and the circulation of tho bank was one hundred and two thousand nine hundred and eighty-three dollars. The directors then went to work to pay off its debts ; and in November, 1837, reduced the amount of its circulation to twelve thousand four hundred and seventy-four dollars. This amount was then in- creased, as is alleged, under the influence of the complainant, to forty-six thousand seven hundred and ninety-three dollars. Since that time, the directors have gone on again and reduced the circulation, until it is admitted on all hands to amount at this time only to about two thouscnd five hundred dollars. The complainant has principally paid off his debt, which was large, Rial I find no charge any where made that tho directors have misapplied any of the funds. They appear, on the contrary, from the results, to have assiduously exerted themselves to pay off the debts of the bank. That the exorbitant loans to Hath- bun were improvident, and brought this bank into great embar- 180 CASES IN CHANCERY, Oakley v. Paterson Bank. rassment, cannot be doubted ; but in doing justice to all parties, I feel bound to declare my conviction, that the conduct of the di- rectors since that event, so far as disclosed by the evidence, shows i meritorious determination to maintain the credit of the bank at all hazards. Do the ends of justice, under such circumstances, require, cither for the interest of the creditors or stockholders, that they should be displaced and other persons substituted in their stead ? Could any men hare gone further in liquidating the demands against the bank ? Have they done else with the funds than apply them in the proper manner to pay the debts ? Could they have done more to realize the assets of the institu- tion ? Judging from the evidence, I am bound to answer all these questions in the negative. But it is said that Abraham Reynolds, one of the directors, is indebted to this bank ; that he is security for his son, who was formerly cashier, and that he is using means to avoid his re- sponsibility in that respect. This he denies in his affidavit. At most he is but one of the directors ; and it would be going a great way without evidence to suppose, that a majority of the directors, and those largely interested in the stock, were uniting with him in a plan to defraud the company, and that, too, against their interests. It is also said, and truly, that there is division and discord in the board of directors. Is this any just ground for divesting the whole board of the property ? How often, if such ground was sustained, would the interference of the court bo sought ? The majority, in all such cases, must rule. Every man who takes stock in a company, agrees that such should be the result. I cannot, therefore, make this alone a foundation for interfering. In some of the affidavits, it is stated, as the belief of the per- sons making them, that great frauds have been committed against the bank ; but by whom committed, or in what these frauds con- sist, is not stated. This is too general for the court to rest upon. There is only one other matter to which I will advert, n ; a reason iirged for appointing receivers; and that is, the proposed plan for selling out the whole claim against Rathbun for two APRIL TERM, 1839. 181 Oakley v. P.it.rson B nk. thousand dollars. This may or may not be a wise step, accord- ing to circumstances, and of which I have no materials up- on which to form a judgment. There is a fact, however, con- nected with this matter, worthy of being stated, viz ; that while the measure has been broached at the board, it has not yet been adopted, and the stockholders have been consulted on the sub- ject by order of the board. This does not, to my mind, look like a designed fraud. Upon the whole case, I am constrained to think, that in the exercise of that discretion with which the act in question has in- vested me, this case does not call for the appointment of receiv- ers upon the facts as at present disclosed before the court, and I shall accordingly decline making such appointment. As to the injunction, that must, as a matter of course, be so modified afl to authorize the receipt by the directors of the dues of the bank, and the payment by them of its debts. As to any further modi- fication, it must be upon notice. It will, under the statute, be in the power of the complainant upon any new state of facts, to apply again for the appointment of receivers, which I hope the prudence and correct conduct of the' directors will give no just occasion for. The question of costs is reserved. Order accordingly. CITED in Goodheart v. Har. Mng. Co. 4 Sal. Ch. 77 ; Bawmley v. Trenton Mut. L. and F. Int. Co. 1 Stock 850 ; Niehol v. Perry Pat. Arm*. Co., 8 Stoclc 126. CASES ADJUDGED TT . THE COURT OF CHANCERY OF THE S1AIE OF NEW-JERSEY. JULY TERM, 1839. MART MEKWIN and others v. ISAAC SMITH, Sheriff, and others. T e general rule is, that when nn in junction has been obtained upon the com- plaint's affidavit alone, and a motion is made by the defendant, upon filing bis answer, lo dissolve the injunction, affidavits cannot be read upon the ar- gument of the motion eiihfr in support of the bill or a-iswcr. The rule artm'ts of exceptions. In cases of waste, affidavits are adm ssible ia support of the bill, to prove acts of waste. IJut affidavits will not be admitted in support of allegations contained in tbo bill, and not expressly denied by ho answer. The practice of this court is ia conformity with the rule adopted by the supreme court of the United States, viz : that the allegations of the b',11 will be taken as true when th^y are not met and denied by the answer ; and if the answer does not full/ meet thj case disclosed by the bill, the injunction will be sustained. Where new matter is contained in the answer, not respons've to the bill, which is relied upon as a ground for setting aside the injunction, the complainant may read affi-lavits in contradiction of such new matter. On tho hearing of a motion to dissolve an injunction, upon the defendant's answer to the bill, tho charges in the bill, uuless met by the answer, are to bo taken as true, and the allegations in tho answer are entitled to tho same credit. A technical denial of tho complainant's bill will not in all cases dissolve the JULY TERM, 1809. Merwin et al. v. Smith ct al. injunction: that must rest in the soun 1 discretion of the- court, and depend on tho peculiar character and circumstances of each case. Judgment and execution creditors of a defendant m execution, whose pro- perly has been Bold by tho sheriff, slanJ in a position which fully entitles them to bo heard upon an application for relief against tho sheriff's salo ; and if tho sale is in any respect illegal, it may be set asido at their in- stance. Whcro tho sheriff's advertisement, after specifying sundry parcels of land to bo Bold by do shcr ff, adds, "together with all his (the defendant's) other real estate in tho county cf Atlantic, of whica a more particular description will bo given oa tho day of sale," it seems that tho advertisement is defect- ive, r.n-1 iasnQcient to authorize tho sale of any lands except those specified in tho advertisement Somo description, by which the property may be known, though imperfect ia itse'-f, is necessary. The discretion confided to the sheriff as a public officer, in selling property, mu^t not be unnecessarily or hastily i-tcifered \vith, nor w.thout tlio charge.! (gainst Lis conduct) being sustained by indisputable evidence. A sale by a sheriff, upon execution, in one parcel, of a large quantity of tho def:nd- ant'o properly, which is readily susceptible of division, can never be justified upou any other ground than as being tho best mode for making it bring the mo t money. A properly may bo FO circumstanced one part so dependent 0:1 the other as to require a calo in large parcels; but tho goncr.il rulo is, that it must b sold i:i different parcels if plainly divisible. A sheriff cannot require security of a duly authorized agent of the plaintiff in execution, for tho performance cfhis contract, nor car. ho rcfuso tho bid of such agent for want of the required security .. The exercise of tho sheriff's discretion must be a legal one, and so controlled as to work no injustice or oppression. A sheriff may refuse to take the bid of m irresponsible man, or o" any ore . when ho ia well satisfied that the sale could only be embarrassed by accepting it. Tins was an injunction bill, tiled on the 10th of January, 1839, by Mary Merwin and James B. Longacre, of Philadel- phia, and Joseph Moser and Andrew Merwin, of Brooklyn, in tlio state of New- York, against the sheriff of the county of At- 1 intic, and seven others, purchasers of real estate at a sale mado by the said sheriff under executions against Joseph E. "West. The bill charges, that on the 19th of November, 1838, Marj 184 CASES IN CHANCERY, Marwin et al. v. Smith efc al. Merwin entered up in the inferior court of common pleas of the county of Atlantic, a judgment against Joseph E. "West, upon a bond with warrant of attorney to confess judgment, condition- ed for the payment of six thousand dollars. That Longacre, Moser and Herwin, the other complainants, on the same 19th of November, entered up in the said court a similar judgment against -the said Joseph E. "West, upon a bond given to them, conditioned for the payment of nine thousand dollars : and that writs of fieri facias de bonis et terris, duly issued upon each of the said judgments to Isaac Smith, sheriff of the said county of Atlantic, by virtue whereof the complainants acquired a lien upon all the real estate of the said West, in the said county : which executions still remain unsatisfied. That at the time of the delivery of the said executions to the sheriff, there were in his hands three executions issued out of the said court of com- inon pleas, upon three several judgments against the said "West, amounting together to about nine hundred and fifty dollars ; and one execution issued out of the supreme court of New-Jersey, upon a judgment against the said "West, for about two thousand live hundred dollars all of which were entitled to priority over the complainants' executions. That the sheriff, by virtue of .the eaid writs of execution, or some of them, had set up advertise- ments of the sale of "West's real estate, as follows : " By virtue of sundry writs of fieri facias, issued out of the court of common pleas of the county of Atlantic, will be exposed to sale at public vendue, on &c., at &c., all the real estate of Joseph E. West, viz : No. 1. The villiage of Catawba and improvement whereon the said West now lives : " and after thus specifying six tracts, the .advertisement concludes, " together with all his other real estate in the county of Atlantic, a more particular description of which will be given on tho day of sale." The bill, after setting out the advertisement at length, and also the advertisement in- serted in the newspaper, which is similar to the foregoing, ex- cept that it states that the property was to be sold " by virtue of executions issued out of the common pleas of the county of At- lantic, and out of the supreme court" states that the sale JULY TERM, 1839. . 185 Merwiu et al. v. Smith et al. was adjourned from time to time until the 2 7th of December, 1S39, when the property was exposed to sale, subject to certain conditions, which are set forth in the bill. That there was an- nexed to the said conditions,, an inventory and description of the real estate to be sold, specifying eleven different tracts and parcels of land, and that no other description was given. That one Jo- seph "W.Gaskill, of said county, attended the said sale as the agent of the complainants, and before the commencement of the sale exhibited to the sheriff his written power of attorney for that purpose, duly executed. That tract No. 1 was cried off to Daniel E. Estell, for six hundred and ninety dollars. That there was upon and within that tract, as sold by the sheriff, a saw-mill, eight two-story frame dwelling-houses and lots of land, a large and elegant mansion-house and out-buildings which were erected at an expense exceeding ten thousand dollars; a store-house, blacksmith's shop, wheelwright's shop, lime-kiln, lime-house, landing, two wharves, a fishery y a grist-mill seat and water power, and about twelve hundred and eighty acres of land, in- cluding three hundred acres of timber land. That at the time of the sale the tract was worth at least twenty-five thousand dollars ; and that after the sale the purchaser boasted that the wood alone upon it was worth sixteen thousand dollars. The bill further charges, that the other ten tracts enumerated in the sheriff's in- ventory furnished on the day of sale, were successively sold ; that the description of said tracts was defective ; that in regard to some of them, the persons bidding did not know which of seve- ral different tracts was offered for sale : that under the description of fifty acres on Gravelly Run, and three hundred and fifty acres on the head of Gravelly^Run, the sheriff sold all the claim of said West to all the cedar swamp on Gravelly Run, for twelve hun- dred and fifty dollars ; that "West owned no separate tracts of cedar swamps on Gravelly Run, but that the tracts so sold were part of an entire tract of six thousand acres ; that the said tracts were sold without any specification of metes or bounds, of desig- nating any monuments by which the limits thereof could be as- certained; and that aince the sale the sheriff has run off and 25 183 CASES IN CHANCERY, Merwin et si. v. S.uitLi et al. caused to be surveyed eight hundred acres of cedar swamp, te- ing a part of said tract of six thousand acres, and that he is about to execute a deed therefor ; that the said cedar swamp is valuable, the timber on a single acre, in some parts of the swamp, being worth more than was bid for the whole tract. The bill further charges, that Gaskill, the agent of the com- plainants, was the highest bidder for each and every of the said, tracts : but that the sheriff, although Gaskill was a freeholder and resident of the county, unlawfully and causelessly refused his bid, and struck the property off to others who were not the highest bidders. That the title to the land sold is undisputed, and that it was sold free of incumbrances, except a mortgage of six thousand dollars upon the Catawba tract. That the whole amount of said sales was about three thousand four hundred and forty dollars, insufficient to satisfy the sheriff's fees and the exe- cutions prior to the complainants', under which the sale was pre- tended to be made. That the residue of West's real estate was of little value ; and that if the sheriff's sales were carried into effect, the plaintiff's executions would be utterly defeated. That the Catawba tract was susceptible of division into a variety of lots and parcels, marked by distinct and obvious bounds ; and that a small part of it, if fairly sold in separate parcels, would have been sufficient to satisfy all the executions in the sheriff's hands, under which the sale was pretended to be made. That the real estate sold by the sheriff was wantonly sacrificed by his illegal conduct in conducting said sale : that it did not bring one tenth of its value; and that the complainants, through their agent, were willing to have bid, and would have bid but for the illegal conduct of the sheriff, the whole amount of the incum- brances on said real estate. That the property was advertised only upon the executions issued out of the common pleas ; that the amount of said executions was less than one thousand dol- lars, and that eight of the said tracts were sold after that amount was realized. That the sheriff intends to execute deeds pursu- ant to the pretended sale, and the purchasers are about to take possession. JULY TERM, 1839. 1ST Menviu et al v. Smith et ul. The bill prays that the sheriff may be restrained from exe- cuting a deed to any of the purchasers ; that the purchasers, their servants and agents, may be restrained from entering upon or taking possession of any part of the premises struck off to them respectively at said sale, and from exercising any act of ownership over the same ; that the sales may be set aside as fraudulent and void ; that any and every deed made under color of said sale before the service of the injunction, maybe delivered up to be cancelled, and the purchasers to whom such deeds have been delivered may be decreed to release their interest in the premises acquired under the sale, with covenants of warranty H ruinst their own acts. The affidavit of two of the complain- ants is annexed to the bill, verifying particularly several of the material charges of the bill as true of their own knowledge. On iiling the bill an injunction was granted by one of the mas- tors of the court, pursuant to the prayer of the bill. On the 27th of February, 1839, all the defendants filed a joint and several answer to the complainants' bill. The answer r.tates, that the real estate of West was lawfully advertised by the .sheriff, under the writs issued both out of the supreme court and common pleas of Atlantic. That at the sale a more partic- ular description of the lands was given, the sheriff having pro- cured the best description he could of the same : that the tracts were so described that they could readily be distinguished; and t'.iat the said tracts were severally struck off to the highest bid- ders. That Joseph W. Gaskill, about the commencement of the sale, exhibited to the sheriff a paper purporting to be a power of attorney from the complainants and Charles P. Moses and Wil- liam B. Willis, authorizing said Gaskill to buy at said sale as their agent, but whether genuine or not the defendants are igno- rant ; that the sheriff read the paper, and stated to Gaskill that the persons whose names were subscribed to the paper were strangers to him ; that, as he was informed, most of them lived out of the state, and that he could not take Gaskill's bid under that power of attorney without some security that he would com- ply with the conditions of the sale, but that if he would procure 188 CASES IN CHANCERY, Merwin et al. v. Smith et al. proper security liis bid would be received. That Gaskill was a man of little or no estate, real or personal ; that he had lately failed, had been a resident in the county of Atlantic but a short time, and whil e there had been employed as an agent of West ; that he was not a man of sufficient property to answer his bid. That the Ca- tawba tract was principally pine land, most of which had been cut off ; that the improvements upon it, as alleged in the 'bill, were either entirely fanciful, or were but of little value ; that the whole was subject to a mortgage of six thousand dollars, upon which large arrears of interest were due, and for the fore- closure of which a bill had been filed and was then depending in this court ; and that at the time of the sale Gaskill publicly proclaimed that he held a lease upon said premises for two years. That the Catawba tract sold for its fair value ; if sold in separate parcels it would not have brought so much, and in the opinion of the sheriff it was the best mode of selling the tract ; that it ought to have been sold in no other way, and that at the time of the sale, Joseph W. Gaskill, the agent of Joseph E. West, re- quested that it should be sold altogether and as one tract. That West's cedar swamp on Gravelly Run was a tract well known by that name, the limits of which were sufficiently defined by the nature of the swamp ; the cedars growing only in the swampy ground, so that the outer lines of the swamp are visible and dis- tinct lines ; that it was represented by West as consisting of two surveys, one made for fifty acres and the other for three hundred and fifty acres ; that it was offered by the sheriff as all West's cedar swamp on Gravelly Run, said to consist of two tracts, one containing fifty acres more or less, and the other three hundred and fifty acres more or less, and struck off to Treen for twelve hundred and fifty dollars. That the description given of the property at the sale was intelligible and understood by all who attended the sale ; that the title was in doubt, and other circum- stances affected the sale of the swamp and deterred persons from bidding as they otherwise would have done. That the cedar swamp sold has since been surveyed, and found to contain be- tween seven and eight hundred acres ; and that the survey so JULY TERM, 1839. 189 Merwin et nl. v. Soaith et nl. mado contains tlic land sold by the sheriff, and none other. That a sufficient intelligible description was given of all the tracts sold ; that each of them was fairly struck off to the high- est bidder ; that Gaskill bid for none of the tracts except the first, and that he was not the highest bidder for that. That the sale was conducted by the sheriff in good faith, and expressely denies that it was made fraudulently and illegally on his part. The answer further states, that on the 12th day of January, 1839, at twelve o'clock, noon, tho purchasers attended at the time and place specified in tho conditions of sale for the delivery of the deeds, and that between the hours of twelve and two the deeds were delivered to the several purchasers in pursuance of the sale, rjid that the purchase money was likewise paid on that day, prior to the service of the writ of injunction ; that the purchasers r.ro now in possession of the premises, and that being so vested with tho title and possession the injunction cannot divest them of the same. Tho answer further denies all fraud, unfairness or illegality in conducting said sale, but states that the same was in all things fair, legal and just ; and whether the sale was legal and vested tho title in the grantees, were questions of law which could be tried in a court of law ; and that the complainants should be left to procure their redress in that tribunal. The answer was sworn to by all the defendants, in the usual fqrm. Tho cause was heard at April term, 1839, upon the applica- tion of tho defendants to dissolve the injunction upon the answer of tho defendants to tho complainants' bill. Upon the hearing, the complainants' counsel offered to read in evidence certain affidavits, copies of which have been served upon the defendants' solicitor six days before the hearing. Wilson, for defendants, objected, and insisted that the affida- vits could not be read in contradiction to the answer. Ho cited, Rcrkely v. Brymer, 9 Vesey, 355 ; Norway v. Rowe, 19 Vesey, 148 ; Clapham v. WJtite, 8 Vesey, 35 ; Eden on Injunctions, 79; Hoffman v. Livingston, 1 John. Ch. Rep. 211; East- 190 CASES IN CHANCERY, Menvin et al. v. Smith et al. burn et al. v. Kirk, 1 Ibid, 444 ; JBoberts v. Anderson, 2 202. II. W. Green and Vroom, contra, contended that the affida- vits were admissable. They insisted, 1. That the rule in regard to the admisibility of affidavits upon a motion to dissolve, was not settled. The court exercised a discretionary power respecting it. Peacock v. Peacock, 10 Vesey, 51. 2. That affidavits were admissible in cases of waste or irre- parable mischief. That the case disclosed by the bill was anala- gous to a case of waste, and that the mischief sought to be pre- vented by the injunction was irreparable. Langston v. Boyl- ston, 2 Vesey, 102 ; Hanson v. Gardner, 7 Vesey, 305 ; Eden on Injunc. 79 ; Easfburn et al. v. Kirk, 1 John. Ch. Hep. 444 ; Peacock v. Peacock, 16 Vesey, 49 ; Gibbs v. Cole, 3 P. W. 254. 3. That the affidavits were admissable in support of the alle- gations in the bill which are not denied by the answer. Smythe v. Smythe, 1 Swanst. 252 ; Eden on Injunctions, 236, note f '/ Hid, 80 ; Hoisted 's Dig. 243, s. 5. The rule does not apply to allegations in the bill of which the defendant in his answer professes ignorance, and neither admits nor denies. There the bill on the motion to dissolve an injunction is taken as true. But where an answer is attempted and partially made, without an express denial ; where the answer gives color to a denial, or raises a doubt about the allegations of the bill, affidavits in sup- port of the bill may be read. 4. That the affidavits were admissible in denial of new mat- ter contained in the answer, not responsive to the bill. The an- swer alleges that the deeds were delivered and the money paid prior to the service of the injunction ; that the defendants were seized and possessed of the land prior to the service of the in- junction, and that their seizing and possession cannot be divested by the writ. JULY TERM, 1839. 191 Merwio et al. v. Smith et al. /. II. Williamson, in reply. The general principle is clear, that affidavits cannot be read in support of the bill, where the defendant relies upon his answer alone in support of his motion. The motion is to dissolve the injunction for want of equity in the bill. If the answer is evasive, or does not deny the whole equity of the bill, the injunction must be continued. It has been decided by the supreme court of the United States, that on a motion to dissolve an injunction, all tne material alle- gations of the bill not fairly met and answered, are to b3 taken as true. Young v. Grundy, 6 Cranch, 51. In Westminster Hall, on the other hand, they are not taken as true, but affida- vits are admitted to prove them. The practice of the supreme court of the United States is adopted in this state, in the state of New- York, and generally in the United States. All the material allegations of the complainant's bill are suffi- ciently answered, according to the practice of this court. As to their own acts and deeds, the defendants answer positively ; as to the acts and deeds of others, according to their belief. The reason why the affidavits cannot be received is, that the defendant is entitled to the protection of lu's conscience, and upon this motion the truth of the answer cannot be tried. The court will not decide whether the bill or answer be true. Clapham v. White, 8 Vesey, 35. Mere inadequacy of price is no ground for setting aside the sheriffs sale. Affidavits in support of the bill upon that ground alone would be immaterial upon this argument. Williamson v. Dale, 3 John. Ch. Rep. 292; Liwnyston v. Byrne, 11 J. E. 566. BY THE CHANCELLOR. I am glad of an opportunity to have the rule settled respecting the admiesibility of affidavits on a motion to dissolve an injunction. It is always a subject of difficulty. The general rule is admitted to be, that where an injunction has been obtained upon the complainant's affidavit alone, and an answer is filed by the defendant, and a motion thereupon made 192 CASES IK CHANCEEY, Merwin et al. v. Smith ei al. to dissolve the injunction, affidavits cannot be read either in sup- port of the bill or answer. But there are exceptions to the rule, and the complainants' counsel insist that this case is within the exceptions. The first exception to the rule- which is relied upon is, that in cases of waste or irreparable injury, affidavits may be read in support of the bill to prove acts of waste ; and it is insisted that the case presented by the bill is analagous to waste. But the cases are not analagous. The bill does not charge that any waste or destruction has been committed or threatened. The object of the injunction is not to restrain the defendants from the commission of an unlawful act, but to prevent their obtaining title or possession of property, which has been unlawfully sold by the sheriff. It is not a case of irreparable mischief. The second exception contended for is, that affidavits will be admitted in support of allegations contained in the bill and not expressly denied by the answer. But this exception cannot be sustained. The practice of this court is in conformity with the rale adopted in the supreme court of the United States, viz : that the allegations of the bill will be taken as true, where they are not met and denied by the answer. If the answer does not fully meet the case disclosed by the bill, the injunction will be sustained. The third exception is well taken. "Where new matter is con- tained in the answer, not responsive to the bill, which is relied upon in any way as a foundation for setting aside the injunction, the complainant may read affidavits in contradiction of such new matter. If, therefore, the defendants' counsel intend to rely up- on the new matter contained in the answer, in support of their motion to dissolve the injunction, the affidavits touching such new matter must be heard. The defendants' counsel having intimated their intention not to use the new matter contained in the answer, upon the argument, the affidavits on the part of the complainants were not read, and the case was heard upon the bill and answer only. JULY TEEM, 1839. 193 Merwin ot al. T. Smith et al. Wilson and 1. H. Wittianwon, for defendants, in support of the motion, II. W. Green and Vroom^ for complainants, contra. The defendants' counsel cited, Den ex dem, Inskeep v. Le- cony, Coxe, 39 ; Den v. ZeUers, 2 Hals. 153 ; 7 Hals. 300. The complainants' counsel cited, Rev. Laws, 432, sec. 9 ; Den, v. ZellerSj 2 ZZoZ*. 154 ; Slmonds v. Catlin, 2 Came, GG; TF00ok v, Monett, 1 J0/m. <7A. .Z&p. 502; Tiernan v. G JoAft* Cft. ^?^?. 411 : Saaotorts Rep. 1, 55, 344. TITE CHANCELLOR. I have no hesitation in continuing tho injunction in this cause until the hearing. There is enough in tho facts admitted by the answer itself, to justify that course. The charges in the bill, for the purposes of this motion, are to be taken as true unless met by the answer, and the allegations in the answer are entitled to the same credit. This was the rule established on the argument, and I shall abide by that decision and treat the case accordingly. It by no means follows, that a. technical denial of the complainant's equity, will, in all cases, dissolve the injunction. That must rest in the sound discretion of the court, and depend on the peculiar character and circum- stances attending each case. But independent of these rules, it is manifest from the whole case that the aid of the court is due to the complainants, at least until they have the opportunity of taking the proofs. I shall consider it my duty, on this motion,, to anticipate the decision on the merits no farther than to state my present views on some of the leading points of the case, not meaning thereby to conclude the defendants, if they think pro-- per so to do, from discussing them again on the final hearing. The complainants, being judgment and execution creditors^, stand in a position which fully entitles them to be heard, and if the sale made by the sheriff is in any respect illegal, it may bo set aside at their instance. 26 104 CASES IK CHANCEBY, Merwin et al. v. Smith et al. First, As to the advertisement of the sheriff. Two objections nro token to this : 1. That the one put up in the different town- chips was upon the executions in the common pleas alone, while that in the newspaper at Camden was as well upon the execu- tions out of the supreme court as those in the common pleas. - If this allegation had been true, the result would have been mate- trial, because the property sold was much more than sufficient to satisfy tho executions issued from the common pleas, and it was Bold in different parcels. By the answer I consider this part of the case fairly met : the sheriff says this statement is not true, for he advertised the property on the executions out of both courts, as well by the notices put up in the townships as that in the newspaper ; that the complainants have stated the notice correct- ly from the newspaper, and that the notices put up in the differ- ent townships were " substantially " the same. He then accounts for the one wliich complainants saw put up in the township, by saying that there were some drawn wrong and put up by mis- take, but afterwards corrected. The word " substantially," it is insisted, is too general and evasive ; that the defendant should have gone on and set out particularly what the notice was which he did put up ; but this is too nice a distinction. Taken togeth- er, and giving it a fair meaning and construction, the defendant must be understood as declaring the notices to have been for a sale upon the executions issued from both courts, as well in the newspaper as in the advertisements, and as accounting for the complainant's charge in this respect by the mistake which he explains. This objection, therefore, is answered. But it is ob- jected in the second place to this advertisement, that after speci- fying sundry lots and distinct parcels of property to be sold, the [sheriff adds, " together with all his (the defendant's) other real estate in the county of Atlantic, of which a more particular de- scription will be given on the day of sale ;" and that under such advertisement on the day of sale he gave a more specific descrip- tion, and sold divers tracts of land. As to the lots sold under this description, a serious question is raised whether the law has been complied with. My impressions are so strong against its suffi- JULY TERM, 1839. 195 Mcrwinct al. v. Smith etal. ciency, tliat I would not, as to these lots, think it right to dis- solve the injunction, if the case stood upon this ground alone. IG this, in fact, any notice at all ? The ninth section of the act, entitled, " An act making lands liable to be sold for the payment of debts," makes it the duty of the sheriff to advertise the time r.rid place where the lands, tenements, hereditaments and real estate will be exposed to sale, one of these notices to be put up in tho township where the lands lie. This statute has some sub- stantial object and meaning, and what can be more important than to inform the public what specific property is intended to be sold. A defendant may have many different parcles of land in a county, and unless it be in some way defined, so that the pub- lic may know what is intended to be sold, the great use of the no- tice is gone. I do not know that this question has ever been set- tled in our state courts. In the case of Den v. Zellers, 2 Hal- sted, 154, the judge at the circuit said nothing more than that " a small variance or inaccuracy in the description of the premises could not impeach the sale, when it appeared from the description it was fully understood what property was to be sold." This is an intimation that some description by which the property may bo known, though imperfect in itself, is necessary. My present convictions are, that the advertisement is in this particular de- fective, and not a compliance with the law. Second. As to the manner of conducting the sale. The bill charges, that the sheriff sold in one parcel the village of Cataw- ba, embracing a saw mill and water power which produces an- nually six hundred dollars clear of all expenses, eight two-story frame dwelling-houses and lots of land, eight one-story frame (1 welling-houses and lota of land, a large and elegant mansion- house and out-buildings which cost in its construction exceeecling ten thousand dollars, a large store-house, blacksmith's shop, wheelwright's shop, lime-kiln, two wharves, a fishery, a grist- mill seat, and about twelve hundred and eighty acres of land ; that the property so sold was worth at least twenty-five thousand dollars, and would command that price at a fair public salo; that the whole sold in this way for six hundred and ninety dol 19G CASES IK CHAKCERY, Merw n et al. v. Smith et al. lars only over and above an incumbrance of six thousand dollars ; and that the purchaser has since declared that the wood alone on the land was worth sixteen thousand dollars. This is a strong state of facts, especially when made under the oath of the party, and the manner in which it is met should be well considered. The sale of the entire tract in one parcel is not denied, nor the amount for which it sold ; but it is alleged that a fanciful and imaginary value and description have been given to this proper- ty ; that the mansion-house and property is an entire establish- ment, and that the land is essential to it and must be gold with it ; that the small houses are only residences of laborers and wood-cutters, and that no person would want a part without tli3 whole of the establishment. It is further urged that there was a mortgage on the entire property of six thousand dollars, which rendered it proper that it should be- sold in one lot. I will not decide, at present, on the propriety or impropriety of the sheriff's course on this part of tho-ease, nor indeed should I until tho facts are more fully before me. This- discretion! con- fided to Liin as a public officer, in selling property, must not be unnecessarily or hastily interf erred with, and certainly not with out tho charges being fully sustained by indisputable evidence ; but this wholesale method of disposing of a defendant's property can never be justified upon any other ground than as being the best mod ci for making it bring the most money. A property may, indeed, be so circumstanced, one part so dependent on the other, as to require a sale in large parcels ; but the general rule is, that it must be sold in different parcels if plainly divisible. Woods v. Monelly 1 John Ch. JBep. 505 ; Tiernan v. Wilson, G Ilid> 413. A defendant in execution Las his rights, and his property fc not to be sold under disadvantageous circumstances. In this case, the result of the sale would Beem to have been peculiarly unfortunate ; for the charge in the bill ia plainly made, that the purchaser has boasted that the wood on the premises, for the whole of which lie gave, including the incumbrances, less than seven thousand dollars, is worth sixteen, thousand dollars. This JULY TERM, 1839. 197 Mr rwiu et ul. T. Smith et uL is not met by the answer in any way. I am willing to have the witnesses examined on this part of the case, before the sheriffs title is passed to the purchaser, Third, As to the bid of Gaskill, the agent The facts re- specting him are disclosed by the answer itself. The complain- ants, being execution creditors to the amount of fifteen thousand dollars in the hands of the sheriff, appointed this man their agent, with authority to buy for them in case a sale was made. When he came to act for his principals, he produced his written power of attorney, under their hands and seals, and offered to leave it with the sheriff. The sheriff declined receiving his bid without he gave security. This was the same thing as shutting him out altogether. The consequence was the complainants, who had a deep interest, were in fact unrepresented at the sale. The whole property was sold for a little less than to satisfy the prior execu- tions, and their demands were completely lost. The sheriff had no right, in my opinion, to deny to this agent the privilege of being a bidder for his principals, upon any ground yet exhibited in the cause. He was a freeholder in the county, though for a email amount, and his character no way impeached. He was to tid on the credit of his employers, and not his own. In the case of Stevenson and Woodruff v. Block^ Saxton, 344, it wap held, that a sheriff had no right to insist on any terms at a sale not warranted by law, or to create liabilities which the law does not impose. Can it be that a sheriff may impose these extra terms on a fair agent, fully authorized ? terms which in effect preclude all opportunity of competition for the property, and the party be denied all relief , upon the pretext that it was the sheriff's discretion, and ho may do as he pleases ? This exercise of tho sheriff's discretion must be a legal one, and so controlled as to work no injustice or oppression. Had tliis bidder been allowed, it is not an improbable result that these entire executions might have been satified at this sale. The complainants say expressly they would have bid that amount. I do not intend to say that a sheriff may not refuse to take the bid of an irresponsible man, or of any one when he may be well satisfied the sale could onlj 103 CASES IN CHANCERY, MerwLi et al. v. Smitli et ol. "be embarrassed by taking it. Tko propriety of such a coursa must, however, be always open to be judged of by the evidence. This is a different case. The bidder was an agont representing largo execution creditors, and was to act ou the faith due to them rather than himself. They ware not present, nor were thoy ap- prised that this security would be required. As this objection covers the whole case, it is enough in itself to demand of tho court a continuance of the injunction until it can bo further look- ed into. The fourth and fifth objections urged against this sale, relate to the sale of the cedar swamp and the enormous sacrifice of pro- perty. It is not necessary to express any opinion upon them at present, the case as to the propriety of continuing this injunction having been fully settled by the other points. If it shall turn out, however, finally, that upon a sale by the sheriff of two tracts, one of fifty acres and one of three hundred and fifty acres, it is propos- ed to convey a tract of near eight hundred acres, and that a pro- perty worth rising thirty thousand dollars has been by this whole course of proceeding sold for about tliree thousand five hundred dollars, it will call loudly for the consideration of the court. There is one suggestion made on the argument which should Le noticed ; and that is that Mr. West, the defendant in the exe- cutions, may commit waste with impunity in the event of the in- junction not being dissolved. As this is a mere suggestion, and there is nothing to justify any belief of collusion between him and the complainants, I cannot presume it will take place. Should any such case, however, be made to appear by proof hereafter, it is very easy to apply a remedy, by requiring the complainants to pay off the prior executions, or by dissolving the injunction. It is my intention, pending this controversy, that the property shall not be wasted. Motion for dissolving the injunction denied. CITED in Den v. Pkilhower, 4 Zdb. 790 ; Coxe v. Hoisted, 1 Gr. Ch. 819; Penn v. Craig, Id. 497; Reuton v. Chapin & Carter, 1 Stock. 63; ParkJiurst v. Cory, 8 Stock. 237; Corles v.Lasliley, 2 Me Car. 1 18 ; Vanduyne v. Vanduyne, 1 C. E. Gr. 94 ; Firmstonev, De Camp, 2 C E. Gr. 816; Vreeland v. N. J. Stove Co. 10 C. E. CV. 141); Myer v. Hithop, 12 C. E. Or 144; Holme* v. Steele, 1 Stew. 174. JULY TERM, 1839. J0RK MILLEB v. GEORGE R. CHETWOOD and others. Upon a bill for .specific performance of a written agreement, it is competent f^r the defendant to prove parol declarations made at the time of the con- tract, though not incorporated in the agreement, in order to rebut the com- plainant's equity. The admissibflity -of such evidence depends upon the purpose for which it ia introduced. It is admissibl o for the purpose of defeating the specific per- formance, but will not bo received with a view to having the coulxact per. formed with an abatement of the price. This court, on a bill for specific performance, not being bound to aid the com- plainant unless his claim is founded injustice, will look into all the circum- stances, and s e -whether any fraud was practised at t'.:e time of the sale. If misrepresentations were made at the time, though not in the writing, cal- culated to mislead in any essential particular, the party will be left to his remedy at law. On a bill for a specific performance, the court will grant its aid or not accord- ing to the justice of the case ; and it will never interfere where the party lias practiced any fraud, or been guilty of misrepresentation in any material particular. That the purchaser bought by the lot or parcel and not by the acre, that the land WRS beforo his eyes and subject every day to his observation, can fur- nish no excuse to the vendor for h s misrepresentation. He is bound to do. dare the truth at any rate. BILL filed October llth, 1836, for a specific performance of the following agreement : " Article of agreement made and entered into this seventh day of August, in the year of our Lord one thousand eight hundred and thirty-five, between John Miller, of Elizabeth-Town, in tho county of Essex, and state of New-Jersey, of the first part, and doctor George R. Chetwood, of the same town, county and state, of the second part. This witnesseth, that the said George R. Chetwood hath bought of the said Jolin Miller, for the sum of five thousand dollars, good and lawful money of the United States of America, all that tract and parcel of land lying and being in Elizabeth-Town, in the county of Essex, and state of New-Jersey ; bounded west and north by land of Isaac Jaques, 200 Miller v. Chetwood et al. east by land of the late Thomas Price, deceased, and south by the road leading to Elizabeth-Town Point. The condition of this agreement is, that the above tiamed George K. Chetwood shall pay to the said Miller one thousand dollars on the first day of September next, when the said Miller will give a good deed of said land ; the remaining four thousand dollars to remain on bond and mortgage, with interest from date ; that is, two. thou- sand dollars on the first day of April next, and two thousand dol- lars on the first day of April, one thousand eight hundred and tf lirty-seven. The said Miller has reserved to himself all wood, crops and movables, and has to the first day of May next to take off. said wood, when the possession will be given to the said doctor Chetwood." The cause was brought to a hearing on the pleadings and proofs, on the 29th of April, 1839. EAas Vanarsdale, jun. for complainant, insisted that the court has jurisdiction. 2 Story's Eq. 23, sec* 716 ; 5 Peters' Rep. 2G4 ; Newland on Contracts, 88. Evidence touching the value of the land is irrelevant, because inadequacy of price is not insisted on by way of defence in the answer. Fraudulent representation is the only ground set up in the answer. 1 Simon's Rep. 376> cited in 2 Oond. Enq. Ch. Rep. 191. Fraud will not be presumed. The party setting up fraud must prove it. 8 Peters 1 Rep. 253 ; 2 John. C7ian. Rep. 633 ; Saxton's Rep. 322 ; Sugden on Vendors, 89, 92, 117.. Parol conversations previous to the agreement, are not admis- ciblc. "Whatever may have been said about the quantity of land, as it was not inserted in the agreement, cannot bind the parties. 1 Peters' Rep. 600 ; 4 Taunton, 779 ; 4 Brown's C. C. 518 ; 2 W. Black. 1249. If the purchaser meant to contract for nine acres, he should It: ve provided for it in the agreement. 3 Merivale, 704; 2 Jo'.n. Rep. 39 ; 5 Mass. R. 357. JULY TERM, 1839. 201 Miller v. Chetwood et nl. Had the land turned out to be more than nine acres, the ven- dor could have had no relief. S Cranch, 375. Complainant's counsel also cited 17 Vesey, 25 ; 2 Freeman, 107 ; 4 Kent's Com. 460 ; 6 Paige's Rep. 254. J. J. CJietwood, for defendant's contra. The defendants do not seek the interference of the court. The complainant asks equity, and he must do equity. The defendants rely upon two grounds : 1. Misrepresentation by tho vendor as to the number of acres. 2. The enormity of the price. 1. Tho misrepresentation here is of the essence of the con- tract. It makes a difference of one third to the purchasers. A court of equity will not compel a specific performance where there has been a fraud or concealment as to the number of acres. Winch v. Winchester, 1 Vesey and B. 378; Veeder v. Fon- da, 3 Paige, 98, 99 ; Morttock v. Butter, 10 Vesey, 292 ; Dyer v. Hargrove, Ibid, 507 ; King v. Morford and others, Sax- ton, 274 ; Hodman v. ZrJley et al., laid, 321, 328. /. H. Williamson, for defendants. The complainant asks the relief sought, not as a matter of right, but of favor. A contract may be binding, and yet the court may not think it a proper case to decree a specific performance. Parol evidence is always admissible to meet the equitable matter upon which the com- plainant asks the aid of the court. The important distinction is, whether the evidence is afforded by the complainant or the de- fendant. A defendant will be allowed to prove by parol any- thing which will rebut the equity of the bill. The Marquis Townscnd v. Stangroom, 6 Vesey, 328, 333 ; 4 Brown C. C. 519, n. ; WooUam v. Hearn, 7 Vesey, 211, 218, 219. Misrepresentation, though in a slight degree, is an objection to a specific performance. The party's remedy is by action of covenant at law. Cadmon v. Horner, 18 Vesey, 10 ; Tfo Mechanics' Bank of Alaxandria v. Lynn, 1 Peters, 282-3. This was a representation wilfully made by the complainant. But even if the representation were not made wilfully, the court 27 202 CASES IK CHANCERY, Miller v. Chotwood et al. would not compel a specific performance. Veeder v. Fonda. 3 Paige, 94, 98 ; Hill v. Buckley, 17 Vescy, 398. Again, tins was a hard and unreasonable bargain. The court will not enforce, by its extraordinary aid, these speculating bub- bles, but leave the parties to their remedies at law. It will not interfere in order to enforce these hard bargains even when fairly entered into. Barnadiston v. Lingood, 2 Atkyns, 134 ; Bux- ton v. Lister et al. 3 Afkyns, 386 ; Townskend v. Stangroom, 6 Vesey, 328 ; Mortlock v. Butter, 10 Vesey, 292. The bill ought to be dismissed with costs. If the misrepre- sentation made by the complainant was wilful, costs should be allowed against him. E. Vanai'sdale, for the complainant, in reply. The only de fence set up in the answer, is the deficiency in the quantity of land ; the defendant, therefore, can rely upon no other. The court must be confined to the issues framed by the pleadings. The date may or may not be of the essence of the contract ; in like manner the quantity of land may or may not be of the es- sence of the contract. A refusal of a decree must be for some misrepresentation about that of which is of the essence of the con- tract. 4 Kent's Com. 466. The contract in this case was for the sale of land by certain "boundaries, and not by number of acres or quantity. There is no pretence of deception in the boundaries. The purchaser knew the lot, lived in the same town, and could see it every day. It was the defendants's folly not to have ascertained the quantity. The complainant never had it surveyed. It was done by computation and estimate. The evidence shows it to have been a bargain for the lot, and not for any specific num- ber of acres. Quantity was not of the essence of the con- tract. As to hard cases, they must be so at the time the contract was made : they cannot be made by a change of times. The price, at the time of the contract, was not exorbitant. J[JLY TERM, 1839. 203 Miller v. Chetwood et nl. THE CHANCELLOR. The object of this suit is to compel a specific performance of a contract made by the defendant, Georgo R. Chetwood, with the complainant, on the seventh of August, in the year eighteen hundred and thirty-five, for the purchase of a lot of land in Elizabeth-Town. The agreement is in writing, and by it, Chetwood agrees to purchase the land for five thousand dollars. The land is described as " lying and being in Eliza- beth-Town, in the county of Essex, and state of New-Jersey ; bounded west and north by land of Isaac Jaques, east by land of the late Thomas Price, deceased, and south by the road lead- ing to Elizabeth-Town Point." This is the only description of the premises contained in the writing : there are no courses giv- en, nor is the quantity of land stated. One thousand dollars of the purchase money was payable on the first day of September next after the date of the agreement, when the deed was to bo executed, and the remaining four thousand dollars, with interest, to bo secured by mortgage on the premises, payable, two thou- sand dollars thereof on the first day of April then next, and the remaining two thousand dollars on the first of April, eighteen hundred and thirty-seven. The first payment of one thousand dollars has been made, and the remainder is still unpaid. Thero is no difficulty or question made as to the tender of the deed at the time fixed by the agreement ; the legal formalities, in this respect, appeal* to have been complied with on the part of tho complainant. The defence is placed by the answer on a single point ; that the complainant, at the time of negociating tho said contract, and before and at the time of executing the aforesaid agreement, represented expressly to Mr. Chetwood that the said tract of land contained about nine acres, whereas when the deed was tendered it appeared that there was in reality but six acres and sixteen hundredths of an acre being a less quantity by nearly one third than the party supposed he was purchasing. Chetwood declares he would never have purchased and agreed to pay so large a sum for the land, but from a confidence in the truth of the foregoing statement as to the quantity ; that the writing was drawn in a hurry, was intended only as a memo- CASES IN CHANCERY, Miller v Che wood et al randuin of the terms upon which the land was sold, and was not considered at the time as in any degree governing the quan- tity. Upon these grounds the defendants insist that the com- plainant is not entitled to the aid of this court. The first subject of inquiry in this case must be, to ascertain how the facts are ; for these are matters of defence which must be proved. There is no dispute that the actual quantity of land 13 only six acres and fifteen or sixteen hundredths. The deed tendered to the defendant makes it six acres and sixteen hun- dredths of an acre, and Mr. Marsh, a surveyor who has made a calculation of the contents of the deed, makes it six acres and fifteen hundredths of an acre, differing only one hundredth of an acre. From the evidence of Lucy Moore, a witness on the part of the complainant, and a doctor James Bell, a witness on the part of the defendants, (these being the only persons present at the execution of the papers,) the course of the transaction was this : Chetwood applied to the complainant for the purchase of the land, and which it was very evident he was anxious to ob- tain; the price was agreed on, and to bind the complainant the defendant paid fifty dollars, and took a receipt specifying on what account the same was paid. This was done in the presence of Mrs. Moore, at complainant's house, and no doubt, as she says, to secure the purchase. Nothing was said at that time about the quantity of land. Mrs. Moore saw only the first paper signed, being the receipt for the fifty dollars. The parties thinking some further writing necessary, the complainant himself drew up the agreement on which he now rests, of which there are counter- parts, one signed by the complainant and wife, and the other by the defendant, Chetwood. This last agreement must be the one referred to by doctor Bell in his evidence, which he declai was executed at the defendant's office, with whom he was at time studying medicine ; and lie declares that previous to si^ the agreement, "doctor Chetwood asked the complainant the quantity of land was, and complainant said about nine acres.' Upon his cross-examiilation the witness could not be positive that the above conversation about the quantity was before or JULY TERM, 1839. 205 Miller v. Chetwood et al. after signing the paper, but thinks it was before. They had before them at the time the receipt for the fifty dollars, and the agreement. There does not appear to be any conflict between these witnesses : their statements are entirely consistent with each other. It may be all true, that when the receipt for the fifty dollars was signed, nothing was said about the quantity of land, and yet it may have been often stated in the course of conver- sation previously thereto, and have been explicitly referred to when the agreements were exchanged at the office of doctor Chetwood. These are the only witnesses who can speak of what took place directly between the parties, and by that alone, as there is nothing to impeach in any way the testimony of doctor Bell, I should feel fully satisfied that the complainant did in truth rep- resent the quantity of land to be about nine acres. But thero are other strong facts corroborative of this conclusion. The com- plainant declared, about the time of this sale, to several other persons, that there was about nine acres in the tract. lie did so to Meline "W. Ilalsey, to Elijah Kellogg, to Keen Pruden, and to George W. Ilalsted. In fact the complainant, when spo- ken to on the subject by John J. Bryant, said, " he did not know that he told doctor Chetwood that the property contained nine acres, but he might have done so, as he always thought it con- tained nine acres and thought so still." He even went into a calculation to show that he had purchased several parcels, and after selling off parts of the same it left nine acres. All this con- versation, although not carried on in the presence of doctor Chetwood, goes to confirm, or at least to render it highly proba- ble, that the complainant spoke of this land as containing the nine acres. Thus far it would seem like a representation of the quantity made by the complainant under a misapprehension on his part, and particularly so as he derived his knowledge, not from an actual survey of the lot in question, but by a calculation made up from the amount he originally purchased, deducting therefrom the amount he had sold off. But there are other parts of tho 206 CASES TN CHANCERY, Miller v. Clietwo tl ct al. evidence which, to say the least, are embarrassments in thy \yf the English chancery, of opening sales upon an offer made to bid more for the property, without any allegation of surprise or fraud, has not been adopted in this state. To justify the interference of the court, there must be fraud, mistake, or some accident, by which the rights of parties have been affected. Sale set aside when the agoat of an incumbranc r, who^e interests were pre- judiced by the sale, nnd who intended to purchase, was prevented fr m at- tending the sale by accident and by an unintentional mistake of the com- plainant's solicitor. The discretion vested by la*v in the sheriff is a le^al discretion, and the court will not permit such an exercise of it as shall work injustice and wrong. THIS case came before the court upon the petition of John Moir, one of the defendants, to avoid a sale made by the sheriff of Middlesex, by virtue of the execution issued in the cause, for the sale of mortgaged premises. The petition was filed on the 20th of March, 1839. Before the filing of the petition, on the 19th of February, 1839, upon filing an affidavit of the agent of the petitioner, an order was made by the chancellor, whereby it was ordered, that the sheriff of the county of Middlesex should deeist and refrain from executing or delivering any deed for the mortgaged premises, under or by virtue of the sale made by him, until the further order of the court respecting the same. The material facts contained in the petition are fully stated in the opinion of the chancellor. The cause came on for hearing upon the petition and affidavits. A. Whitehead and Veing under the impression, from inquiries made, that the place of sale was between South-Amboy and New-Brunswick, and hav- ing further learned that the steamboat from New- York to South- Amboy did not stop at Elizabeth-Town Point, took the train of cars that pass through Newark about a quarter before ten in the. morning, for New-Brunswick, and from thence set \&\\ in a yrfc. 213 CASES IN CHANCERY, Seaman v. Riggins and Moir. vat 3 conveyance to attend the sale. After pursuing Ms journey ivnd making inquiries on the road, he came to a tavern-house belonging to a Mr. Appleby, though not occupied by him, be- tween New-Brunswick and South-Amboy. When he arrived tlicrc, he found out by a person who happened to have been present at the time of the adjournment of the sale, that the place of sale was at William Applegate's tavern, on the other side, of tlonth-Amboy, and that he had gone out of his way some five or eix rnilys. He then went on, and arrived at the place of sale fit live minutes before two" o'clock, and found that the property had been sold to Mr. John Travers, for and in behalf of William Higgins, the defendant, for four thousand five hundred dollars, a sum about sufficient to satisfy the complainant's mortgage, and cutting off entirely the detendant, John Moir. The sale was fixed for one o'clock, and the property struck off without any other bidder than Mr. Travers, at about half past one. Under this state of facts, John Moir applies by petition to set aside this gale, offering on his part to bid upon a resale the full amount due him and the complainant also. Burnet, the mortgagor in the mortgage of Mr. Moir, is stated to be insolvent ; and unless the relief here asked is granted, the money on this second mort- gage must be entirely lost. No deed has yet been executed by (lie sheriff to the purchaser. The power of the court to interfere in this case is- not denied. It has been frequently done in the state of New- York, and in lliis court. No exercise of the power of the court can be plainer, than that of controlling sales by public officers on its own pro- cess. Williamson v. Dale, 3 John. C7t. Rep. 290 ; Duncan end others v. Dodd and others, 2 Paiye, 99 ; Requa, v. Red and wife, Ibid, 339. In this court, the case of the Etfrs of Gouvemeur Morris v. Swartwout and others, was cited at the bar, though not re- ported. The cases referred to on the argument from the English court, on the subject of the openings of biddings, though not ipplieable to our method of making sales, show ,a very strong disposition to open sales upon the single ground that more can be JULY TERM, 1839. 217 Seaman v. Biggins and Yoir. got for the property. They open the biddings continually, upon en offer made to bid more for the property, without any allega- tion of surprise or fraud. Holding a power over the subject, they do so for the interest of the estate alone. These cases do not apply to sales made with us ; they have never .been adopted either in the state of New- York or in this state. To justify the interference of the court, there must be a foundation laid either fraud or mistake or some accident, by which the rights of par- tics have been affected. In the present case, I have no doubt either as to the power of the court, or its plain duty, to interpose and set aside this sale. The bare statement of the facts show, that an accident on the part of the agent in missing the road, and a mistake wholly unintentional in the complainant's solicitor in naming the house at which the sale was to take place, have occasioned the whole difficulty ; and it would be a reproach on the administration of justice if no remedy could be afforded. Had Mr. Moir, or his agent, neglected his business, there might have been some rea- son against interfering ; but they both have shown diligence, and certainly did intend to be present and to bid, and would have done so but for the accidental occurences which have been stated. I consider the misapprehension under which the agent labored, and honestly so no doubt, as to the situation of the place where the sale was to take place, and the wrong information given him by the complainant's solicitor, as a sufficient ground for inter- ference. Moir was not a mere stranger, who contemplated at- tending the sale as a purchaser, but a party having a deep in- terest, and manifesting in all his conduct a determination to be present, and to bid the amount due him. The property was worth the amount, and his mortgagor was insolvent, he had therefore every motive for such a course. But it is said that it is dangerous to interfere with sheriff's sales; that they have a right, as public officers, to exercise a discretion as to sales, and the manner of conducting them ; and that, if the court will set aside such sales, purchasers will not attend. A sheriff is a public officer, and as such has a certain discretion 29 218 CASES IN CHANCEKY, Seaman v. Riggins and Moir. entrusted to him by law, and with that it is not my intention or desire to interfere ; that discretion must, however, be a legal one, and the court will not permit such an exercise of it as shall work injustice and wrong. Thus far my opinion is formed from rea- sons wholly independent of the sheriff ; and without intending now to charge on that officer in this case a designed fraud, I can never be led to think his conduct in respect to this execution was right. It may have been, and I incline to think it was, more the result of indiscretion than design. He had a large execution in his hands ; he knew that the sale, made as it was, would cut off entirely the second mortgage, amounting to more than three thousand dollars ; he knew that it was the intention of the per- son holding this second mortgage to be represented at the sale ; and he knew the property to be worth the amount of both the mortgages. Under such circumstances, his plain duty was, ei- ther to adjourn the sale, or to have waited until a later hour. In the absence of this party, to strike off the property, in half an hour, when he had until five o'clock, more than three hours, at his disposal, was unnecessary and unreasonable haste. As to the course pursued by Mr. Travers, it is very clear his interest and that of Mr. Kiggins, the purchaser, was one in this transaction. Mr. Kiggins was his relative, and probably has act- ed throughout with a view to befriend Mr. Travers, which he had a perfect right to do. One thing is certain ; Mr. Travers meant to get this property at as cheap a rate as possible, and availed himself of the opportunity which he considered present- ed itself of defeating this second mortgage. At the first day fix- ed for the sale, after learning thai a sale for the amount of the first mortgage would defeat the second entirely, he still pressed the sale of the property, which must then have taken place but for the commendable course pursued by Mr. Williamson. Ho may have excused this course to himself upon the ground that considerable improvements had been put on this propertyby him- self and Mr. Kiggins, and that without such improvements the property would not have been worth the amount of this second mortgage. This consideration, it cannot bo pretended, should JULY TEEM, 1839. 219 Seaman v. Biggins and Moir. enter into this question. Any improvements thus made, Can never be set up as a reason for defeating a bona fide mortgage. The place, too, for the sale, was fixed by Mr. Travers a place every way unfit for such a sale, and only to be excused for the reason that it was near the premises to be sold. The sale made by the sheriff must be set aside, and a new sale made, upon a readvertisement according to law. Each party to pay their own costs on this application. Sale set aside. CitBD T Howel v. Sister, 3 Or. Oh. 270 ; Marlatt v. Warwick, 3 C. E. Or. 123 ; Kloepping v. Stellmacher, 6 G. E. Or. 330 ; Nat. BTc. of Metropolis v. Sprague, Id. 461 ; Wetzler v. Schaumann, 9. C. E. Or. 64; Woodward v. Bttllock, ]2 O. E. Or. 513. CASES ADJUDGED DT THE COURT OF CHANCERY OF TRE STATE OF NEW- JERSEY. OCTOBER TEEM, 1839. WILLIAM BAILEY and others v. WILLIAM STILES and wife, and others. Iii a case of spoliation of a will, equity has jurisdiction, and the will may be established in ibis court In ord r to establish a will in the court of chancery, all the witnesses to the will, if witbiu tbe power or the court, must be examined. But if either of the witnesses be dead, or insane, or without the jurisdiction of the court, the will may be established without the evidence of such witnesses. Under Iho statute of New Jersey, it is requisite, to the due execution of a will to pass real estate, that the testator sign his name in the presence oi t e witnesses. O.i a bill filed to establish a will, under a charge of spoliation, it is not neces- sary to prove that the spoliation was committed by the individual charged in the bill, or by whom it was committed. It is enough if the fact of the spo. Hat ion be established. On a bill filed to establish a will devising real estate, the court may grant relief either by making an iuj nc:ion perpetual, restraining the defendants from prosecuting any suit to disturb the complainants in the possession of theix respective tracts, or by directing a releaso on the part of the defend mts of all their light in said lauds to be made to tho complainants, or by a decroa OCTOBER TEKM, 1839. 221 Bailey et !. v. Stiles et al. establishing the will in all its parts. The last course should be a "opted v. herever the contents of the will can be ascertained. THE bill was filed on the 8tli of January, 1834, by "William Bai- ley, Mills Bailey, Henry Bailey, Charles Bailey, Ebenezer Bailey, and Caroline Bailey children of Benjamin Bailey, late of the coun- ty of Morris, deceased, against William Stiles and Delia his wife, , Abraham Bockover, junior, and Sally Ann his wife, Almira Bailey and Louisa Bailey, in order to establish the will of the said Benjamin Bailey. The bill charges, that the said Benjamin Bailey was, during his life, and at the time of his death, seized in fee of certain mills,and several tracts of land and real estate, in the township and county of Morris ; and being so seized there- of, and being of sound and disposing mind and memory, the said Benjamin Bailey, on or about the 21st day of May, 1S29, made his last will and testament in writing, and signed and pub- lished the same in the presence of three subscribing witnesses, and attested in the manner prescribed by law for devising real estate ; by which said will, the said Benjamin Bailey, amongst other things, did give and devise to the complainants, in fee simple, all his real estate, to the purport and in manner follow- ing ; that is to say : to the said William Bailey he gave and de- vised a certain grist-mill and saw-mill, with the privileges, and a certain lot of land called the Hamilton lot, the wholo containing fifty -three acres. To the said Mills Bailey he gave and devised a certain farm called the Bailey farm, in the said township of Morris, adjoining Abraham Bockover and others, containing about ninety acres ; and certain lots called the Hawkins lot and the Sand-spring lot, containing together about fifty-nine acres. To the said Henry Bailey, a certain farm called the Kesbit farm, in the township of Morris, containing about one hundred andfivo acres ; also, one equal undivided half of tho Swamp-meadow, containing thirty acres in tho whole, adjoining David Lindsley. To the said Charles Bailey he gave and devised a certain farm called the Yanhouten farm, containing about one hundred and twenty-eight acres it being part of tho farm formerly Peter Sharpenstein's. To the said Ebenezer Bailey he gave and de 222 CASES IN CHANCERY, Bailey et al. v. Stiles et nl. vised the homestead farm where the said Benjamin Bailey then lived, containing about sixty-five acres, and one half of the above mentioned Swamp-meadow. To Caroline Bailey he gave and de- vised a certain farm called the Glasby farm, in Morris township, containing sixty acres, adjoining the said Kesbit farm. And the said Benjamin did further, in and by his last will and testament, nominate and appoint the said William Bailey and Mills Bailey, executors of his said last will and testament. That the said Ben- jamin Bailey died on the Gth of June, 1833, without having al- tered, cancelled or revoked his said will, leaving the complainants and Sally Ann, wife of Abraham Bockover, junior, and Delia, wife of "William Stiles, his children, and Almira Bailey and Louisa Bailey his grandchildren, (the children of his son, John Bailey, deceased,) his heirs at law ; and that the said Abraham Bockover, junior, and Sally Ann his wife, William Stiles, and Delia his wife, Almira and Louisa Bailey, severally refuse to join tho complainants in the suit, and are therefore made defend- ants. That the will remained in the possession of the testator, and was kept, locked up in a drawer of his desk in his dwelling-house, until the day of his death. That on the day after the funeral of the eaid Benjamin Bailey, the complainants, William and Mills Bailey, having understood from their father that they were the executors named in his will, went to the desk for the purpose of getting tho will, when they discovered that the lock of tho desk had "been broken open, and also the lock of the drawer in which the will had been kept, and that the will was taken away. That they had repeatedly made diligent search for the will and had not been able to find it, and that it had never been in the possession or under tho control of either of them since the death of the said Benjamin Bailey. That the general contents of the will were known in the fam- ily, their father having frequently spoken of them in his life- time. That Delia Stiles and her husband had expressed thcm- eclves dissatisfied with its contents and threatened to destroy it if they could get hold of it. That on the day of the funeral the said J)clia, under pretence of sickness, refused to accompany tho OCTOBER TERM, 1839. 223 Bai ey et al. v. Stiles et al. family to the funeral, but remained at the dwelling-house of her father, and then and there, as complainants were informed and believe, broke open the desk and carried away the will. That the said Delia, by and with the connivance of her husband, after the death of the said Benjamin Bailey, surreptitiously and clan- destinely took the said will, and have either destroyed or do now conceal and suppress the same, by reason whereof it cannot be produced and proven and recorded in such manner as it other- wise would have been under the laws of this state. That the said Benjamin Bailey, at his death, left sufficient per- sonal estate for the payme*nt of his debts and funeral expenses, with a considerable surplus to be disposed of according to the di- rections of his will, and that the complainants at his death be- came entitled to the several premises devised to them respectively in the said will, subject to the dower of the widow of the said Benjamin Bailey, which right of dower the complainants by their bill acknowldge and profess their willingness at all times to set off the same when requested. That the complainants, on the death of their father, took possession of the said several tracts devised to them in his will, and are now in possession thereof. The bill prays that the said "William Stiles and Delia his wife may be decreed to produce the will of the said Benjamin Bailey, by them or one of them surreptitiously held, or any other will of the said Benjamin Bailey in their or either of their possession, custody or power ; or if the will of the said Benjamin Bailey be lost, destroyed or suppressed, that the true contents thereof may be ascertained, proven or established, under the order and decree of the court : that the complainants may be decreed to hold the several parcels of real estate so devised to them, respectively, and their title confirmed to them, their heirs and assigns, according to the true intent and meaning of the said, will ; that the defend- ants may be decreed to execute and deli ver sufficient deeds of re- lease of their respective rights and claims to the said lands, as heirs at law of the said Benjamin Bailey ; and that they may be perpetually enjoined and restrained from setting up any claim 01 224 CASES 1J* CHAKERY, Bailey et al. v. Stiles et al. demand, or from prosecuting any action, as the heirs at law of the said Benjamin Bailey, for the said lands devised to the com- plainants, or any part thereof. On filing the bill, an injunction was issued by the advice of Elias Vanarsdale, esquire, one of the masters of the court, (the chancellor, Yroom, having been of counsel, in the cause,) pur- suant to the prayer of the bill. Two demurrers were filed to the bill. The first, a general demurrer, for want of equity. The second, by William Stiles and wife, assigning for cause of demurrer, that they could not be called upon to criminate themselves. On the llth of No- vember, 1834, the chancellor, by and with the advice of Elias Yanarsdale esquire, master, overruled the first demurrer with costs, and allowed the second, which extends to so much of the complainants' bill as seeks a discovery from Stiles and wife. The cause came on for final hearing before chancellor Penning- ton, upon the pleadings and proofs, at a special term held in Morris-Town, on the 8th of August, 1839. J. W. Miller, and 1. H. Williamson, for complainants S. Scudder and P. D. Vroom for defendants. J. W. Miller, for complainants, insisted, that the will of Ben- jamin Bailey was, in point of fact, duly executed. If, from the whole evidence, the court is satisfied that the will was signed in the presence of the witnesses, it is enough, although the attest- ing witnesses should deny it. 3 Stark. Ev. 1692 ; JKoscoe's Eo. 74 ; 1 W. Black, 365. That the will was not altered or revoked at the testator's death. That it was destroyed by Mrs. Stiles. That the evi- dence is clear that the will was destroyed, and whether by Mrs. S. or any other person, the complainants are entitled to relief. That the contents of the will are sufficiently proven. If a paper is destroyed by the heirs, the rule in proving the contents ia not as strict as when it is lost by accident. Toller on Etfrs, OCTOBER TEEM, 1839. 225 Bailey et al. v. Stiles et al. 70, 71 ; Burn's EGG. Law, 209 ; 2 Eng. Eccles. Rep. 182 ; 2 Campbell's Rep. 390 ; 1 tfforJfc. Ev. 354, 353, n. 0. ; Lord Raym. 731 ; Saxton, 212 ; 3 Hoisted, 58. The oath of the party, after proving its existence, is evidence of the loss. 1 Gained Cases in Error, 27 ; 16 Johns. Rep. 193 ; G Cowan, 377 ; 12 Johns. Rep. 192 ; 1 Stark. Ev. 349. Complainants are entitled to relief, and that without going to law to establish the will 1 Madd. Ch. Prac. 325-6 ; 3 Atkyns, 359 ; 2 Vcrnon, 380, 561 ; 1 Vesey, sen. 387 ; 1 P. Wms. 731 ; 2 Ibid, 748; 1 John, Cases, 417. In cases of fraud or accident, the court will retain a bill for relief. 1 Fonblanque, 12, 15, in note. I. II. Williamson, for complainants, cited Hobart, 109 ; Mit- ford on Pleading, 159 ; 1 RusseWs Rep. 558 ; 1 Dickens, 32. A witness abroad need not be examined on commission. Lord Carrington v. Payne, 5 Ves. 411 ; 2 Madd. Ch. Prac. 440. S. Scudder, for defendants, contra. The defendants do not deny the jurisdiction of the court, but they insist that here is no spoliation, or suppression, or fraud. There is no proof, though it is so charged in the bill, that Mrs. Styles ever threatened to destroy the will, nor that she feigned sickness. The judgment on the demurrer shows that the charge of spoliation in the bill was improperly there. No inference against her is to be drawn from her not answering. There is no proof that the will was so executed as to pass real estate. The will must be signed in the presence of the witness- es. Rev. Laws, 7, sec. 2 ; Den. ex dem. Compton v. Mitton, 7 Hoisted, 70 ; Den ex dem. MicHe v. Matlack, 2 Ilarr. 86. Though the proof be clear that the will was destroyed, yet if it turns out not to have been executed according to the statute, it will avail nothing as to the real estate. Equity requires as much, nay, more proof of the execution of a lost will, than is required at law. In equity all the witnesses to a will must be examined. Cooper's E^. Cases, 136 ; 2 Madd. Ch. Prac. 440- 30 226 CASES IK CHANCERY, Bailey et al. v. Stiles et al. P. D. Vroom, for defendants. The complainants' case is not founded on a lost paper, but is case of spoliation. This is a novel and rather an extraordinary case. Yery few cases of this nature in the court of chancery are to be found in the books, and no case in New Jersey. The complainants must make out the f actum of the execution. There is prooof of a will, but there is no proof that there was ever one executed according to law to pass real estate. Johnson is a candid observing witness, and he must have" observed it had it been signed in his presence. Being a discreet man, and a sub- scribing witness, his testimony is to be specially regarded. If the will is proved, it must be by a by-stander a mother, and the peculiar friend of the complainants. The testimony of this witness is contradictory and uncertain. The only two witnesses in regard to the execution contradict each other. Can the court on such evidence establish the will against the heir ? It is the rule of this court that the subscribing witnesses must all be produced. In a doubtful case will not the court require the complainants to examine the witness in Ohio, even though it might not be conceded as a universal rule that all the witnesses must be examined ? It is not proved clearly that the will was in existence at the testator's death. The court must say whether the will was taken away by the testator in his life-time, or by Mrs. Stiles. The bill fails unless the charge against Mrs. Stiles is made out. It is not a case for the mere loss of the paper. The loss of a paper is by mistake the spoliation is through fraud. The complainants have failed to make out the contents of the will. The paper found among the papers of David Thompson js not a copy of the will, but turns out to be a mere memoran- dum. The will must be proved. What decree will the court make ? The prayer of the bill is as to the real estate alone. There is seven thousand dollars of the personal estate, what is to be done with that ? Can a will be established for part ? A new will is not to be made for the testator, bnt hia will is to be established ; not a part of the will, but the entire one. OCTOBER TERM, 1839. 227 Bailey et al. v Stiles et al. I. II. Williamson, in reply. The complainants are willing to stand or fall by the charge of spoliation. There is no doubt that a will of some kind was made by the testator ; this is agreed to. "Was the will executed in such manner as to pass real estate ? It is only required that the subscribing witnesses should have been in the room and might have seen the will executed. All that Mr. Johnson says is, that he has no recollection of seeing the testator sign the will. He does not say that ho did not sign it in his presence. He says it may have been signed and I not remember it. Mrs. Bailey, the widow, fully proves the signing. The court is bound to reconcile the testimony of witnesses. The testimony of an affirmative witness outweighs that of many negative ones. Must all the subscribing witnesses to the will bo examined ? Cannot the legal formalities be proved by other witnesses until the testamentary ones arc- called ? At law it is clear you need not bring all the witnesses into court ; why should a different rule exist in equity ? Cooper v. Hlundcll, Coop, Eq. Ca. 138 ; same case, 10 Ves., 505. The way of proving a will in a case of spoliation must not be wholly blocked up. 5 Vescy, 40-i; 9 Vesey, 381. A will may bo proved against the testimony of the instrumen- tal witnesses. Chase v. Lincoln, 3 Mass. 236. If the rule is inflexible that all the witnesses must be exam- ined, this court will let the cciso stand over until a commission can be returned, or order an issuo of devisavit vcl non. Sea- ton's Forms of Decrees, 82. If there has been cpoliation, although not by Mrs. Stiles, the complainants arc entitled to relief. Ii' defendants do not answer then one witness is enough. The answer is evasive. O As to the contents of the will ; a will must bo established to the extent proved, even if you cannot prove tho whole of it. There is nothing more than an application to the court to cstsl)- lish this will so far as relates to the devises. The personal estate was to be equally divided. The court will not refuse aid to de- visees, merely because the whole of tho will cannot bo proved. ZVernon, 216, 441. 228 CASES IN CHANCERY, Bailey et al. v. Stiles et al. The court need not establish the will, but may only continue and make perpetual the injunction against disturbing the devisees. The will need not be established, but only the rights of the com- plainants. If only the complainants' rights are established, any other party may question the disposition of the personal estate. Section's Decrees, 63. THE CHANCELLOR. This is an important cause. The amount of property involved is large, the question arising new with us, and some of the charges made against one of the de- * fondants of a very serious and distressing character. My desire to come to a just and sonnd conclusion, has been in due propor- tion to the magnitude of the case. The complainants are children (five sons and one daughter) of Benjamin Bailey, deceased, late of the county of Morris, in this state. They allege, that their father at the time of his death was seized in fee of a large real estate, which he devised to them i;i the manner therein stated, by his last will and testament, duly executed in the form prescribed by the laws of this state. The v/ill is said to bear date on the twenty-first of May, eighteen hundred and twenty-nine, and the testator to have died on the ei'ith of Jun^ eighteen hundred and thirty-three. They further allege, that their father kept his will locked up in a desk in his own house until his death, immediately after which the lock of the desk and of the drawer in which the will was kept was bro- ken open, and the will taken out and carried away. They further allege, that at the funeral of their father, their sister Delia Stiles, under pretence of sickness, refused to go to the grave, but re- mained at the dwelling, and then and there, as they are inform- ed and believe, broke open the said desk ; and that their said sister, with the connivance of her husband, William Stiles, in this manner clandestinely took the said will, and has either de- stroyed or suppressed and conceals the same. The bill, after stating this charge of spoliation, prays that the defendants may be compelled to produce to this court the said last will and testa- ment, or that the true contents thereof, in case it be lost, destroy- OCTOBER TERM, 1889. 229 Bailey ct al. v. Stiles et 1 1. cd or suppressed, may be ascertained and established by this couit ; or, that tlie complainants may be decreed to hold the seve- ral tracts of laud devised to them according to the will, that the defendants may be compelled to execute to them releases of all their right or claim to the same, and be perpetually enjoined from setting up any further claim or demand for the said lands, or from prosecuting any action for the recovery thereof, and that the title of the complainants to the said lands may be quieted and put at rest. The defendants are two of the testator's daughters with their husbands, and the children of a deceased son, to whom the tes- tator gave no part of his real estate. These defendants met this case in the first instance by two demurrers, one of them denying the whole equity of the bill, and the other as to so much of the bill as charged upon Mrs. Stiles the spoliation of the will, claim- ing the protection of the court as to Mr. and Mrs. Stiles from an- swering, on the ground that such answer might criminate them. The first demurrer was overruled by the court, and the last sus- tained so far as relates to Mr. and Mrs. Stiles. The effect of this decision was to establish in this very case the jurisdiction of the court upon the facts stated in the bill, so far as those facts were well pleaded, and to exempt Mr. and Mrs. Stiles from answering so far as they are charged criminaliter, and that without preju- dice. The question of jurisdiction was considered on the present argument, and properly so, as having been settled by the decis- ion on the first demurrer, which brought up the whole case made by the bill for discussion and settlement. In a case of spoliation the power of this court is too well settled to admit of further question. 1 Jfadd. Ch. Prac. 325-6 ; 3 Athjns, 359 ; 2 Vcr- noii, 380, 561; 1 Vesey, sen. 387; 1 P. Wms. 731; 2 Hid, 748 ; 2 Story's Eq. 671. Taking the power of the court to be established, I proceed to examine and see how far the complainants have sustained them- selves by evidence. 1. The first question, and the one which lies at the founda- tion of all the rest, is, whether Benjamin Bailey left at his death 2CO CASES IN CHANCERY, Bailcv et al. v. Stiles et al. any last will and testament. I do not mean here to speak of tho mode of execution, but did he leave any instrument purporting to be his will ? That he made a will in the year eighteen hun- dred and twenty-nine, there can be no doubt ; it has not been controverted by any person. John Johnson testified, that he wit- nessed the testator's will a few years before his death. It was drawn by David Thompson, witnesssed by him, by Mr. Johnson the deponent, and by Ephraim M. High. William Bailey, one of the complainants, and Mrs. Bailey, the testator's widow, he says, were present. Mrs. Bailey the widow, (who has in le- gal form relinquished all claim under the will and elected to take her dower at common law,) confirms the statements made by Mr. Johnson as to the execution of the will, and agree? with him in most of the attendant circumstances. The answer of the defendants admits, that in or about the year eighteen hun- dred and twenty-nine, without meaning to be particular as to time, they heard that the testator had made a will. There is no evidence that this will was ever cancelled, or in any way modi- fied. Mrs. Bailey says, the testator kept his will in a desk in the entry; it was the same desk in which he kept his most valuable papers, such as bonds and notes. She says she saw the will in her husband's last sickness. He requested that it should be Drought to him, and proposed that his son "William should tako it home with him, and actually gave it to him for that purpose, out afterwards changed his mind, saying it might not look well to take it out of the house, and it was returned to the desk jgain. This was only three or four days before the testator's Jeath. He died on Friday, and on Saturday, the day after, tli3 tridow says she saw tho will. This was the day of tho funeral. On Monday afterwards she went to the desk and found it broken jpen. The lock had been pried off. There were marks on it showing that force had been applied ; and the will was gone, nd she has never seen it since. Upon this evidence it is suffi- ciently proved that there was a will in existence at the testator's leath. 2. The Bcond, and by far the more difficult question to settle, OCTOBER TERM, 1839. 231 Bailey etal v. Stiles et al. relates to ikefactum of the execution of this will. The defend- ants insist, that even if a will is proved to have been made, yet there is no sufficient proof that it was executed in such a manner as to pass real estate under the laws of this state, and especially under the construction placed upon those laws by the supreme court. They deny that the testator signed the will in the pres- ence of the subscribing witnesses. The witnesses, it will be remembered, are David Thompson, who drew the will and who is dead, Ephraim M. High, who has removed to the state of Ohio, out of the jurisdiction of this court, and John Johnson. Mr. Johnson is the only subscribing witness who has been sworn, and before proceeding further it will be proper to dispose of an objection taken by the defendants to any relief being afforded the complainants until they shall have examined all the subscribing witnesses. It is contended that it is a rule of this court, in all cases, that all the subscribing witnesses must be examined on proving the will against the heir. To maintain this position, the case of Booile v. Blundell, in Cooper's Equity Hep. 136, is much relied on. That was an issue of devisavit vel non, directed by the court. After examining one of the subscribing witnesses, the complainant rested his case, saying to the defend- ant that he would make him a present of the other two. Upon a motion for a new trial, the chancellor declared it to be necessa- ry that the complainant should call all the subscribing witnesses before a will could be established in that court. These witness- es he considered not as the witnesses of either party, but of the court. The witnesses appear to have all been in court, and in such case, or what is the same thing, when they are within the power of the court, they must all be examined. I have no doubt that this is the settled rule. But there are exceptions, and must necessarily bo, to the rule requiring tho production of all the wit- nesses ; and it so happens, that the two witnesses not produced in this case, come within the exceptions made in the books to the general rule ; one died, and the other removed beyond the juris- diction of the court. The case first referred to will be found re- ported in 19 Vesey, 505, and these very exceptions to the gene- 232 CASES IN CHANCERY, Bailey et al. v. Stibs et al. ral rule are there stated. See also /Seaton's Decrees, 62 ; Lord Carrington v. Payne, 5 Vesey, 411 ; Billing v. Brooksbank, 19 Yesey, 501 ; Chase v. Lincoln, 3 Mass. 236. The like ex- ception to the rule obtains where the witness becomes insane, or has not been heard of for many years and cannot be found. In the case of a witness being out of the jurisdiction of the court, I am aware there have been different opinions entertained in dif- ferent courts, but I think the true rule is to consider it as coming within the exceptions. Such, as it appears to me, is the weight of authority, and it is more consistent with principle. "Wliat power has the complainant over a witness in another state ? He cannot compel his attendance either before this court or before a commissioner in the state where he may happen to reside. In the case cited from 5 Yesey, it was made a point whether a com- mission should not be sent abroad to examine the witness, and it was held sufficient to prove his handwriting. Had the de- fendants desired so to do, they would have been entitled to take out a commission to examine this witness, but neither party was bound to do so if they were willing to submit the case upon tho other evidence. We must, then, see how the proof stands as taken. John Johnson, a subscribing witness, testifies, that he was present at the execution of the will. He was sent for for that purpose. "William Bailey, the son, Mrs. Bailey, the widow, Da- vid Thompson, Ephraim M. High, and the witness, were present. The testator put his hand on the seal and acknowledged that he eigned, sealed and published it as his last will and testament. He was of sound mind. Mr. Thompson and the deponent signed their names, and Mr. High made his mark, as witnesses, in the presence of the testator. Ho saw Mr. Thompson sign his name and Mr. High make his mark. As to the testator's signing the will in the presence of the witnesses, the deponent answers, he does not recollect seeing him sign his name. He thinks the tes- tator's name was signed to the will when he first saw it. This witness gives a very rational account of the whole matter, and. makes out a complete execution of the instrument, except as to OCTOBER TERM, 1839. 233 Bailey et. al. v. Stiles et al. the signing by the testator, and upon that point lie declares he hiis no recollection of seeing him sign his name. This is the most difficult part of the case. The decision on this subject in the supreme court, requiring the testator to sign his name in the presence of the witnesses, I shall adhere to as the law of this court. The question belongs peculiarly to that court, and its de- cision must control this. This witness, therefore, fails to make out an essential part of the proof, and without further evidence the case must fail. But we have another witness who was present, although not a subscribing one, and her evidence becomes very material. This witness is the widow, Mrs. Deborah Bailey. She is the mother of all these children, and she has released all her claim under the will ; she is therefore a competent witness, and for aught that appears worthy of credit. She recollects the circumstance of her husband's signing the will. She was sitting behind him, hold- ing him up in bed at the time he signed it. At the time he wroto his name to the will, she swears positively that the subscribing witnesses were present. She also proves the reading of the will to the testator, before the witnesses came in. These two witnesses, Mr. Johnson and Mrs. Bailey, it is man- ifest from the depositions, have been pressed by counsel on their examinations very much on this point. It will be seen that they have placed their answers to this part of the case in different shapes, but from a careful and fair view of it all I can give to it no other meaning than this : Johnson answers negatively that he does not recollect seeing the testator sign it, and Mrs. Bailey Bwears affirmatively that he did sign it in the presence of tho witnesses. The rule of law is clear in such case ; the affirma- tive witness must prevail. There is one consideration hero wor- thy of being noticed. The will was executed in the year eighteen hundred and twenty-nine, and the witnesses were examined iu eighteen hundred and thirty-five. A period of six years had passed, and it would be no very strange occurrence that even a subscribing witness should not remember every thing that took place at the time of the execution. Mr. Johnson, although evi- 31 234: OASES IN CHANCEKY, Bailey et aL v. Stiles et al. dently a very accurate witness, and, judging from his testimony, a cautious and just man, had no interest or feeling in this trans- action. The wife of the testator was his nurse, was present, held him up in the bed, and was greatly interested, no doubt, at the time, in all that was passing. This witness not only swears that her husband signed the will in the presence of the witnesses, but states all the circumstances. While the proof is not as full on this point as I could have wished, yet by the rules of law as well as from the whole tenor of the evidence. I must declare the proof in the case to be, that the will was signed by the testator in the presence of the witnesses. The next matter relates to the fact of spoliation. "Was this will in fact, as charged, fraudulently taken away ? That there was a will made, and that it was kept by the testator in a desk in his house, is clear. The widow swears that it was in the desk during her husband's last sickness. Only three or four days be- fore his daath he requested to have it, and she got the key and her son William went and got the will and brought it to his father. He then told William to take it home with him and keep it. As William was going out of the door he changed his mind, and told him it would not look well to have it taken out of the house, and desired him to put it back again. She also cwears that she' saw the will again in the desk the day after her husband- s death. This evidence is uncontradicted, and there u no proof in the whole case of any cancellation by the testator, or that he ever had any intention of so doing. This was on Saturday, the very day the testator was buried. On Monday morning thereafter the will was gone, and all the witnesses agree that there was on the desk marks of its having been broken open. The charge is, that Mrs. Stiles, one of the daughters, for whom a small provision only was mado by the will, while the family had gone down to the grave to bury her father, perpetrated tho act. This is a serious charge, and should be sustained by the clearest evidence before it can be believed. The mind revolts at eo shocking a transaction. She did not go to the grave ; and one witness only, Ira P. Goble, is brought to make out the OCTOBER TERM:, isso. 235 Bailey t-t al. v. Stiles ct al. charge. lie swears that while the family and friends went to the grave he was engaged in carrying chairs up stairs, and while standing at the head of the stairs ho saw this daughter, with a trowel, break open the desk and take out a paper. I do not know this witness, nor has his general character been questioned in tho evidence ; but he stands alone, and there are many grave considerations that enter into the question, so far as the court is concerned, in founding their judgment upon his evidence. lie may indeed speak the truth, and yet he may be so placed by his own conduct, and by the attendant circumstances, as to forbid acting upon his statement. The character of the charge, tho time when the transaction is alleged to have taken place, his in- discretions, if nothing more, in his conversations with others re- specting it, arc all open and must be duly weighed and consider- ed. To stamp with infamy the reputation of a party, with the possibility of her innocence, would be a painful reflection. There is much evidence going to show, that in the position in which ho stood on the stairs the witness could not have seen what lie stated he did see. By varying tho position a little, other wit- nesses declare that he could have seen. One witness, Nancy Conway, swears that she remained at tho house while the mourners went to the grave, and she saw nothing of the trans- action ; and yet it is quite strange that she has no recollection of seeing G oble there at that time at all. Another witness, Stephen Gucrin, swears that he had a conversation with Goble, and ask- ed him if he had seen Mrs. Stiles at the desk at the time of tho f uneral,to which Goble replied he had not. Guerin then told him what he had heard he had said in the neighborhood about Mrs. Stiles taking the will. lie said it was a false report ; that he had said nothing about it, and knew nothing about it. Another wit- ness, Samuel C. Crowell, says he spoke to Goble about Mrs. Stiles breaking open the desk, and about what he had heard he said she had done. Goble said all he knew about it was of no conse- quence. Afterwards he told Crowell he knew no more about it than he did. Upon such a state of facts, I will not say that Mrs. Stiles car- 23G CASES IN CHANCERY. Bailey et al. v. Stiles et al. ricd away this will. The evidence is not satisfactory. But I do not consider it necessary, in this case, that I should be able to designate the person who took away this will, if it satisfactorily appears that it has been carried away fraudulently by any per- son. I have no doubt, and can have none after the evidence of Mrs. Bailey, that a spoliation has taken place. The will was in the desk after the testator's death ; it is now gone, and marks of violence are on the desk, showing the lock to have been broken open. It would be a strange failure in the administration of jus- tice, if the devisees under a will should lose their estate when it was clear that a will had been carried off, from the mere fact that they could not detect the robber. The only remaining point is to ascertain the contents of the will. Here, I must confess, there has appeared less difficulty on investigation than I feared at the time of the argument. The testator had five sons and three daughters living at his death, cud two grandchildren, who were the objects of his bounty. These sons were men approaching the middle of life. The eldest was forty years of age. They all labored under their fa- ther, and he took all the profits. They all lived at horn e except "William. The testator was also the owner of several distinct farms and places known by certain names. Mrs. Bailey says she heard the will read by Mr. Thompson to her husband, and she recollects that he gave to William the grist-mill, saw-mill, and the Hamilton lot. To Henry he gave the Kesbit farm and half the Swamp-meadow. To Mills he gave the old Bailey farm, the Hawkins lot, and the Sand-spring lot. To Charles he gave the Yanhouten place. To Ebenezer he gave the homestead and half the Swamp-meadow. To Caroline he gave the Glasby farm and one hundred dollars. To Mrs. Stiles and Mrs. Bockover, four hundred dollars each, and a legacy of one hundred and fifty dollars to tho two daughters of her deceased son John, John Conway testifies, that ho was a neighbor of the testa- tor, and had a conversation with him about a month bofore his death in relation to his will. He told him that he had xnodo .1 will, arid went on and specified the different parcels that 1\* h\d OCTOBER TERM, 18CO. 237 et al. v. Stiles et al. given the several cliildren, precisely according to the above statement of Mrs. Bailey. But there is far more certain evidence than even this of the contents of the "will. David Thompson, who drew the will, it appears from Mrs. Bailey's evidence, wroto two papers as shc> thinks, and took the first one he drew home with him. He said it was customary to do so, for fear one might be destroyed. Mr. Thompson is dead, and his brother Stephen Thompson, who is his executor, has produced a paper, which lie swears he found among his brother's papers, which is made an exhibit, and is marked Exhibit M. 1, on the part of the complainants. This paper, and the endorsement upon it, are proved to be in tho handwriting of David Thompson ; and by it we find the very same disposition made by the testator of his property, as stated in the evidence of Mrs. Bailey and of Mr. Conway. On this pa- per is this memorandum, in David Thompson's handwriting : " Benjamin Bailey outlines of will, Friday, May 21st, 1829 ; given by him to me ; I wrote the will, and it was executed wit- nesses, David Thompson, - Johnson, - High. High made his mark." Comparing this memorandum with the whole evidence, there can he no reasonable doubt that this paper con- tains the will of the testator. All the particulars agree ; the time, the names of the witnesses, the person who drew the pa- pers, and the fact that High, instead of writing his name, made lu's mark. In looking at this draft of the will, there is no difficulty about the real estate. The devises are all plainly made, and the Eamo is true of the specific legacies. There is some embarrassment in the clause disposing of the residue of the personal property. The clause on this subject directs it to remain in the family for six years, and then to be divided equally among the four young- est eons, Mills, Henry, Charles and Ebenezer. But there is a bracket enclosing at the side this clause, with the words written, " this altered ;" and at the foot of the writing are added the words, " must remember to divide the personal property." As the first clause, which was to be altered, gave the residue to certain of tho 233 CASES IN CHANCERY, Bailey et al. v. Stiles et al. children in exclusion of the rest, and the memorandum at the foot declares that the personal property shall bo divided, it can mean nothing else, upon any fair construction, than that it should be divided among all his children, instead of . a part, as was at first his intention. This I believe to be the true meaning of the clause, and with that construction the whole instrument is perfectly intelligible and plain. At all events, such a view, inasmuch as it favors the defendants, cannot be complained of by them. On this part of the case I refer to the opinion of jus- tice Baldwin, of the supreme court of the United States, in Askew v. Odenheimer, 1 Baldwin's Rep. 390. Entertaining these views of this case, it remains to be consid- ered what relief can be afforded by this court. The court may grant relief in three ways : by making the injunction perpetual, restraining these defendants from prosecuting any suit to disturb the complainants in the possession and enjoyment of their res- pective tracts ; by directing a release on the part of the defend- ants of all their right in said lands to be made to the complain- ants ; or by a decree establishing the will in all its parts. 2 Vernon, 441 ; 1 Dickens, 32 Seatorts Decrees, 63. The last should bo adopted whenever the contents can be ascertained ; and in tho present case, being satisfied on this point, I shall adopt that course. The writing contained in Exhibit M. 1, on the part of tho complainants, must be taken as the contents of the instrument disposing of the residue of the personal property, after paying the specific legacies, among all the children of the testator living at his death. As the spoliation is not proved to have been com- mitted by the defendants, or any of them, the costs on both sides must be paid out of the testator's estate. It has been no easy task to settle all the points of this case. I have done so to the best of my judgment, and, I hopo, in a manner consistent with the truth and justice of the case. Thcro is one view which pervades the whole ; that the testator left a will which has been fraudulently disposed of, and that the complain- ants should not lose the estate which their father intended for them for tho want of that aid which every citizen is entitled to OCTOBER TERM, 1839. 239 Bailey ct al. v. Stiles et r.l. have from the judicial tribunals of his country. It was, indeed, eaid at the hearing, that no great harm could result from a de- cree in favor of the defendants ; it would only leave the caso to the provisions of the law, which disposed of the properl y equally among all the children. But this is not the true view of this caso. Every man has a right to dispose of his property by his last will as he pleases, and the slightest encouragement given to the de- struction of these instruments, from the supposed inability of the power of the court to reach the case, would be in the highest de- gree dangerous and impolitic. Decree accordingly. JOHN FRAZEE v. CHARLES T. INBLEE and wife and SAMUEL CAMPBELL. Whore ft mortgagee intentionally and understandingly cancels his mortgage, and in lieu thereof takes a deed for the same premises, find the mortgagor ixecute.? a second mortgage upon the premises prior to the deed, the first mortgage, iu the absence of fraud, will not be revived, nor the second mort- gagee prevented from reaping the benefit of his priority acquire! by the cancellation of the first mortgage.* BILL for the foreclosure of a mortgage given by Inslee and wife to the complainant. The bill states that the mortgage bears date on the 8th of September, 1836, and that Inslee and wife afterwards, by deed, conveyed the mortgaged premises to Camp- boll, the other defendant. The bill is silent as to the fact of the acknowledgment of recording of cither instrument. Samuel Campbell, in his answer, states, that on or about the 8th of September, 1836, the complainant placed in the hands of one Elias Stansbury, as his agent, a sum of money to be invest- ed on interest. That Stansbury at that time loaned three hun- dred dollars of said money to Charles T. Inslee,and several months afterwards loaned him the further sum of two hundred dol- See GarwooJ v. Adm'rs of Eldridge, ante, 145, 40 , CASES IN CHANCERY, Frazee v. Inslee and Campbe'.l. lars, and at the time of the last advancement the bond and mort- gage mentioned in the complainant's bill were executed. That on the 25th of November, 1836, Inslee and wife executed to Campbell a mortgage upon the same premises, to secure the pay- ment of a bond of seven hundred dollars, then given by Inslee to Campbell, which was acknowledged upon the same day, and recorded on the third day of December ensuing. That at the time of the recording of said deed the premises were unincumbered, and the complainant's mortgage was not on record. That on the 21st of April, 1837, Inslee apph'ed to Campbell, and urged him to pay one hundred dollars, to cancel the bond and mortgage ho held against Inslee, and to take a deed in fee simple for the mort- gaged premises ; that the said Elias Stansbury also solicited Campbell to make this arrangement, urging as a reason, that Inslee was insolvent, and that it would be to Campbell's interest thus to sliift his security. That Campbell agreed to the proposi- tion provided the property was entirely free from incumbrances, which both Inslee and Stansbury affirmed was the case. That on the 21st of April, 1837, the records were searched, and thero was no incumbrance upon the property, excepting Campbell's own mortgage for seven hundred dollars ; and on the same day Inslee and wife executed and acknowledged to Campbell a con- veyance in fee of the premises, which was recorded on the next day. That simultaneously with the execution of the deed, Camp- bell cancelled his bond and mortgage upon the premises. That Stansbury, in procuring the mortgage from Inslee and wife to the complainant, and also in inducing Campbell to cancel his mortgage and take a deed for the premises, acted as the agent of the complainant ; and that Campbell was fraudulently induced to cancel his mortgage. The answer denies all knowledge on tho part of Campbell of the complainant's mortgage ; insists that Campbell is a bona fide purchaser without notice, and that he is entitled to hold the premises by virtue of his deed, clear of the complainant's mortgage ; or that Campbell's mortgage should be revived, and first paid out of the mortgaged premises. OCTOBER TERM, 1839. 241 Frazee v. luslee and Campbell. The cause "was heard upon the bill, answer, replication and proofs. Scudder, for complainant. B. Williamson, for Campbell, one of the defendants. THE CHANCELLOE. The complainant's mortgage bears the earliest date of any of the present incnmbrances on the properly which it covers. It is said to be antedated, but it is not so proved, and if it might be surmised from the attendant circumstances that is docs not carry its true date, yet it does not appear when it was in fact executed. The money for which this mortgage wns given was applied to pay off a previous mortgage held by Samuol Oliver on the property, and the complainant might by assign- ment of such mortgage have been placed as the first incumbrar- ccr. 1 suppose the complainant's was in fact, therefore, the first lien, and was so intended to be. By the neglect of Mr. Stans- bury, the complainant's agent, as he swears, the mortgage was not placed on record until after Samuel Campbell's mortgage for seven hundred dollars, which bears a later date. After the com- plainant placed his mortgage on record, Samuel Campbell can- celled his mortgage of record, and took a deed from Inslce and. wife for the property. This places the parties again as they ori- ginally stood ; the complainant's mortgage first, and Mr. Camp- bell's second. It seems that the complainant's mortgage was received in the office to be registered on the 21st of April, 1837,, at half past ten in the morning, and the mortgage of Campbell! was cancelled and his deed recorded on the next day. The defendant alleges, that his mortgage was cancelled and! his deed taken by the fraudulent management and misrepresen- tation of Elias Stansbury, the complainant's agent. Ilad this been! made out in the proof, I should readily have protected the de- fendant ; but there is, in my opinion, a failure to sustain by evi- dence this part of the case. There is, it is true, an appearance of a studied silence on the part of Stansbury respecting the com- 32 212 OASES IN CHANCERY, Frazee v. Ins'ee and Campbell. plainant's mortgage, and a promptness in putting it on record at the time when lie knew tlie parties were negotiating to sell the land to Campbell ; and I have no doubt he intended, if they did sell, that the complainant's mortgage should stand as a lien on the property. But was all this in any way fraudulent ? He wa) not bound to give information, unless he pleased, that li held in his hands a mortgage ; but he takes it to the public office, and there places it on record, to be seen by everybody. The only act that I perceive Stansbury charged with by the evidence is, that he recommended to Campbell to take a deed. There is no doubt that the mortgage of complainant was at the clerk's office the day before the defendant cancelled his mortgage or took his deed. He examined the records, and it seems the clerk gave him wrong information. He did not, when inquired of, inform him that this mortgage of complainant was left there for record. That it was thorc, however, at the time, I see nothing from the evidence to make me doubt. The clerk's certificate on the back of it savs V it was recorded on the 21st of April. In the absence of any proof of fraud by the complainant, or his agent, when the mort- gage was cancelled intentionally and understandingly by the defendant, and a deed taken for the same property, I cannot upon any safe principle revive the mortgage, or prevent the com- plainant from reaping the benefit of his rights as a first mort- gagee. This would be giving encouragement to negligence, and destroy the value of a public record. It is to be observed, that the defendant has no certificate from the clerk of any search, but the evidence is, that the clerk's deputy told him, upon enquiry, that there were only certain iucumbrances on the property, omit- ting that of the complainant. It further appears, from the testi- mony of Jeremiah Crocheron, that before taking the deed he mentioned to the defendant, Campbell, the existence of this mort- gage that he got his information from Inslee ; to which Camp- bell said, he would run the risk of that, for he had searched. Tliis information, coming directly from Inslee, should, at any rate, have put him on enquiry and more diligent investigation. This enquiry of the clerk was made the day before the mortgage OCTOBER TERM, 1839. 243 Frazee v. Inslee and Campbell. was cancelled, and the mortgage and deed were brought to the office by Campbell himself. He then had a further opportunity to examine the records, had he been disposed so to do. The whole evidence is obscure and uncertain. It is not quite clear from Bigbie's evidence, what part of the day it was on the 21st whether before or after dinner that he saw Mr. Campbell. It might have been before the complainant's mortgage was brought to the office on that day, though I should infer the contrary* As the defendant has failed to sustain his case by sufficient evidence, the complainant is entitled to the ordinary decree on liis mortgage. Decree accordingly. WILLIAM DONNINGTON, Administrator of CAROLINE M. DOW- NING/TON, deceased, and DAVID SANDERSON", v. MARY R. MITCHELL, surviving Administratrix of NATHANIEL MITCH- ELL, deceased, et aL the death of the wife the husband may administer on her estate, and in that ch racter take to himself for his own benefit, jure martii, all her per- sonal property; and in case he dies before he shall have folly administered on such estate, his representatives are entitled to the properly. ' letters of administration upon the wife's estate are granted to the next of kin of the wife, they are deemed as trustees only for the representatives of the husband. icn the property of the wife by marriage agreement, executed before th marriage, is conveyed to trustees, and no disposition is made of the pro- perty in the event of the wife's death before the husband upon the deatk of tbe v. ife the property will go to her husband. The rights of the husband arc not suffered to be taken away unless by exprew terms, and bis rights are as complete in property placed in trust as in any other. BILL for an account and for relief, filed the 4th of February, 1837. It states, that Nathaniel Mitchell, of Elizabeth-Town, CASES IN CHANCERY, Aclm'rs of Donnington et al. v. Adm'ra of Mitchell et al. died about the first of June, 1828, leaving Albert R. Mitchell and Caroline M. Mitchell, his children, and Mary K. Mitchell, hia widow, surviving. That the said Nathaniel! Mitchell died seized of .a valuable real estate, which upon his death descended to Ms children ; and that the said Caroline M. Mitchell, upon tho death of her father, became entitled to one-third of the rents, issues, profits and annual income of tile said real estate, and so continued until her death. That the said Nathaniel Mitchell also died possessed of a large personal estate, amounting, after tho payment of debts and funeral expenses, to fifty thousand dollars ; to one third of which the said Caroline M. Mitchell also becamo entitled on the death of her father. That upon the death of the said Nathaniel Mitchell, the said Mary and Albert, his widow and son, took out letters of administration upon his estate, pos- sessed themselves of all his personal property, entered into tho receipt of the rents, issues and profits of his real estate, and con- tinued to receive and hold the same to their own use. That on the 19th of December, 1830, the complainant, "William Don- nington, intermarried with the said Caroline M. Mitchell, and that thotnarriage relation between them subsisted until her death. That before the marriage between the said "William and Caroline was solemnized, an indenture of three parts, bearing date on tho 18th day of December, 1830, between "William Donnington of the first part, Caroline M. Mitchell of the second part, and llary B. Mitchell of the third part, was executed by the said "William and Caroline, whereby, after reciting that a marriage was intend- ed shortly to be solemnized between them, and that the said Wil- liam had agreed that if tho same should take effect, ho, his cr- ecutors, administrators or assigns, should not intermeddle with, nor have any right, tjtle or interest, in law or equity, in or to any part of tho rents, 4 Issues or profits of the real cstato of tho said Caroline, or to any part of her estate, real or personal, in- herited from her father, but that tho same should always remain to tho said Caroline, or to the uses expressed in said dcod. Tho said William Donnington covenanted and agreed that tho estate, real and personal, of the said Caroline, should, notwithstanding OCTOBER TERM, 1809. 245 Ailm'rs of Donning! on eta], y. Adm'rs of Milchell efeal. the marriage, be accounted, reckoned and taken as a separate and distinct estate of and from the estate of him the said "Wil- liam Donnington, and be in no wise liable or subject to him, or to the payment of any of his debts, but that the same, with the interest and profits thereof, should be appropriated to the purpo- ses in the said deed specified. And the said Caroline, in and by the said deed, conveyed and transferred the whole of her estate, real and personal, to the said Mary R. Mitchell, in trust to pay the rents and interest of the same to the said Caroline, or to vest them in the name of the said Mary, upon such securities as she the said Caroline might direct, in trust for the said Caroline ; and with the assent and concurrence of the said Caroline, to sell and transfer any part of the said estate ; and also in trust that the said estate, and the proceeds and income thereof, should be taken and enjoyed by. such person or persons, and for such uses, as the said Caroline should at any time limit and direct, either by her last will and testament duly executed according to law, or by any other writing signed by her in the presence of two or more credible witnesses. The bill further states, that the said articles of agreement were never executed by the said Mary R. Mitchell ; and insists, that by reason thereof, the said articles of agreement never took effect, and that the same are inoperative and void in law. The bill further states, that the said Caroline died on the the 17th of August, 1836, leaving the said estate, reel and personal, and the rents and interest thereof, undisposed of, without having executed any last will and testament according to law, or any writing signed by her as specified in the said arti- cles of agreement That after the death of the said Caroline, letters of administration upon her estate were granted in due form of law to the said William Donnington ; and that, he being anable himself to prosecute his bill for the recovery of the goods and chattels, rights and credits which were of the said Caroline at her death, and being indebted to one David Sanderson, on the 30th of January, 1837, ho conveyed all his rights as such administrator, in the estate of the said Caroline, to the said Da- vid Sanderson, upon certain trusts in the said deed specified. 246 CASES IN CHANCERY, Adm'rs of Donnington et al. v Adm'rs of Mitchell et al. The bill prays an account of the personal estate of the said Na- thaniel Mitchell, and of the rents and profits of his real estate, from the time of his death until the death of the said Caroline ; and a decree in favor of the complainants for the portion of the said Caroline in the same, and for all her personal estate, and the rents and profits of her real estate, in the hands of the de- fendants. After the filing of the bill, Albert R. Mitchell, one of the de- fendants, died, and the suit was continued against his executors. Separate answers were filed by Mary R. Mitchell, as surviving administratrix of ^Nathaniel Mitchell, deceased, and by the ex- ecutors of Albert R. Mitchell. The answers disclose no new facts. They admit the material allegations contained in the complainants' bill, but insist, that the articles of agreement sign- ed by the said "William and Caroline are valid and operative in law, and that thereby the said William absolutely relinquished all right, claim and interest in the estate of the said Caroline, both real and personal, and covenanted and agreed that the Bame should be her own separate property, free from his control, and that he thereby deprived himself of all benefit and advan- tage to be derived therefrom. The cause was heard upon the pleadings. & Scudder and I. H. Williamson, for complainants. J. J. Chetwood and Frelinghuysen, for defendants. THE CHANCELLOR. There can be no doubt that the complain- ants in this case are entitled, upon the general rule, to an account at the hands of the defendants. The bill was filed by William Donnington, in his Iife-tim3, ai administrator of his wife, fcr in account of her personal estate. He died, and the complain- ants ha^e obtained letter.} of administration of tho husband's es- tate, and also, de lonis non, of tho estate of his wife. On the death of a wife the husband may administer on her estate, and in that character take to himself, for his own benefit, jure mariti, OCTOBER TERM, 1839. 2*7 Aclm'ra of Donnington et al. v. Adm'rs of Mitchell et ol. all her personal property ; and in case ho dies before lie shall Lave fully administered on such estate, his representatives are entitled to the property. If letters of administration upon the wife's estate are granted to the next of kin of the wife, they are deemed as trustees only for the representatives of the husband. Elliott v. Collier^ Atkyns, 526 ; Watt v. Watt, 3 Yes. jun. 14; Stewart v. /Stewart, 1 Johns. Ch. 229; Squib v. Wyn, 1 P. Wms. 378 ; 2 Kent? a Com. 135. All the cases agree on this subject, and as a general rule it was not denied on the ar- gument. It has indeed been made a question, not whether the husband is entitled to the separate estate of his wife, but in what character, whether as next of kin of the wife, or as husband. If ho be entitled, it is not of much importance to discuss in which of these characters he takes. The better opinion, Low- ever, certainly is, that he takes as husband; for, strictly speak- ing, he cannot bo said to be of kin to the wife. This subject, with a reference to the cases, will be found fully discussed and settled in the case just cited from 7 Johns. Ch. 229. But this rule, it is equally clear, must and will be controlled by any legal instrument which shall make a different disposition of the wife's estate. Prior to his marriage, the complainants' intestate and his wife did enter into articles respecting her sepa- rate estate, and the whole case turns upon the true construction of that instrument. The father of Mrs. Donnington died a few years prior to her marriage, and left to his family, consisting of his wife and two children, a very considerable estate. The marriage agreement was signed by these parties just before their marriage ; and while there arc some general expressions in it which look like a total abandonment of all claim on the part of the husband to any in- terest in the estate, yet it manifestly was intended to guard against the husband and his creditors only during the coverture. There is no disposition made of the property in the event of the wife's death before her husband, but that is reserved for the fu- ture appointment of the wife, and she died without making a my such appointment. 248 CASES IN CHANCERY", Adm'rs of Donnington et al. v. Adm'rs of Mitchell et al. The instrument is dated on the 18th day of December, 1830, the day before the marriage was solemnized ; and after stating that Nathaniel Mitchell died intestate, leaving certain real estate, which is therein described, to his family, as well as personal pro- perty, which had never been divided, and that a marriage was about to be solemnized between the parties, it was further reci- ted, that William Donnington, the intended husband, had agreed that if the marriage should take place, then, notwithstanding the marriage, the said William Donnington, his executors, ad- ministrators or assigns, should not intermeddle with or have any right, or title, or interest in the same, (using very strong words,) but that the same should remain to his intended wife, or to such uses as should be therein afterwards expressed. The said Wil- liam Donnington covenants that all the said estate shall be reck- oned and taken as a separate and distinct estate, and be no way liable to him or to the payment of his debts, but shall be dispos- ed of as therein after mentioned. Caroline M. Mitchell, the in- tended wife, then conveys all her estate to her mother upon cer- tain trusts, and it is to these trusts that we are especially to look. The whole instrument, as well in the recital as the covenants on the part of the husband, point to these for the future direction of the estate. By this trust it is declared, that all the said estate, and the income thereof, shall go to such persons, and for such, uses, as the said intended wife shall at any time during her life direct, either by her last will and testament in writing duly exe- cuted according to law, or by any other writing whatever signed with her hand in tho presence of two or more witnesses. The disposition of tho property after the wife's death, remained to be made by the wife, either by will or other writing, and none such was ever made. Who, then, is entitled to the personal es- tatefor that alono can be the subject of enquiry here the next of kin of the wife, or the husband ? The wife has an es- tate in the hands of trustees, undisposed of. It belonged to her jit her death, and must, in the absence of any disposition of it, go to her husband. The rights of tho husband, it will be seen, arc not suffered to bo taken away, unless by exprcssa term, and OCTOBER TERM, 1839. 249 AJm'rs of Donuington et al v. Adm'rs of Mitchell et nl. his rights arc as complete in property placed in trust as in any other. The case of Stewart v. Stewart, in 7 Johns. Ch. 229, before cited, is very much like the present, and it was held to Lave been only a provision during coverture, and that the hus- band was entitled, at the death of the wife, to the estate. That was a conveyance to trustees, subject to the future disposition of the wife by will or other writing, and no such writing was ever executed. There were in that case two important facts mili- tating against the construction placed upon the "writing by the court, which do not exist here. The recitals declared that the intended wife desired to provide for herself and her children, but this was not in the granting part of the deed, and further, the husband released all his marital rights over the property. See also on this subject, Clancy on Bights of Women, 11, and G26, note D.; Bailey v. Wright, 18 Vesey, 49 ; Hawkins v. Hawkins, 10 English Cond. Ch. Rep. 2. It would have been very easy, had it been the intention of the parties, to have declared the trust in favor of the next of kin, or in some other manner to have shown a determination to exclude the husband. No such trust having been declared, nor indeed any disposition whatever made of the property after the death of the wife, I can consider this instrument only as a provision during coverture, leaving the rights of all parties, on the death of the wife, to be settled by the law. It leaves the estate as if no set- tlement had been made. Some objections were stated on the argument to the settle- ment, wliich did not, I confess, strike me as being well founded ; but it is unnecessary to examine them, because, taken as a valid deed, it no way, in my opinion, impairs the rights*of the husband. I shall direct an account to be taken by a master, of the per- Bonal estate of the wife, and of the rents and profits of her real estate to the time of her death. Order accordingly. [An appeal was taken by the defendants from the decree in this cause, which is still pending undecided.] 250 CASES IK CHAKCEKY, JOHN FAULKS v. MICHAEL BURNS.! The parties to a deed, in a case not affecting third persons, maybyagr-e- ment cancel if, if it be not recorded ; but the party destroying the .nstru- ment must in all cases show his authority for so doing. THE bill states, that on or about the 29th of September, 1836, the defendant, being seized in fee of a lot of land in Elizabeth- Town, agreed to sell the same to the complainant for four hun- dred dollars. That the lot was conveyed by Elihu J. Crane and wife to the defendant, by deed dated on or about the 16th of May, 1836. That the defendant, through his agent, Sylvanus Iloyt, proposed to the complainant, that the deed from Crane and wife to the defendant, not having been recorded, should be delivered up to the complainant, and that a deed should be exe- cuted from Crane to the complainant ; to which arrangement the complainant assented. This agreement having been made known by the defendant, or his agent Sylvanus Iloyt, to Crane, the said Crane and wife, by deed dated the 29th of September, 1836, conveyed the said lot in fee to the complainant. That the last mentioned deed was duly executed and acknowledged by Crane and wife, and by them delivered to the complainant, and at the same time the defendant, through his agent Iloyt, deliv- ered to complainant the deed from Crane and wife to the com, plainant ; and upon the delivery of said deeds the complainant paid the purchase money, (which was a full consideration for the premises,) and entered into possession, and still remains in the actual possession of the said premises, and has erected improve- ments thereon to the value of five hundred dollars. The bill further states, that the defendant has commenced an action of ejectment against the complainant in the supreme court, for the recovery of the premises ; and prays an injunction to restrain the defendant from proceeding at law to recover the premises, and also that the defendant may be decreed to execute to the complainant such conveyance as may be requisite to perfect his title to the premises. OCTOBER TERM, 1839. 251 Faulks v. Burns. The defendant, by his answer, admits that he became seized of the premises in question as stated in the complainant's bill, and that his deed had not been recorded. That lloyt called on him, urged him to sell, and stated that he could procure a pur- - chaser for the premises ac four hundred and twenty-live dollars ; and that the defendant agreed that if Hoyt would obtain a pur- chaser at that price, he, the defendant, would execute a deed for the premises. That the deed from Crane to the defendant for the premises, was placed in Hoyt's hands, as evidence to persons wishing to purchase, of the defendant's title, and for no other purpose. The answer expressly denies that Hoyt was the agent of the defendant, that he was ever authorized to deli ver a deed for the premises or to receive the purchase money, or that he had any authority from him except to iind a purchaser for the premises at four hundred and twenty-iive dollars. It also denies that the defendant ever informed Elihu J . Crane, either person- ally or by agent, of any such agreement ag is alleged in the complainant's bill, or that he ever requested Crane to execute a deed to the complainant ; that he ever received the purchase money for the premises, or consented that the complainant should take possession thereof or make improvements thereon. Tho answer states that the deed from Crane to the defendant was cancelled without his authority, knowledge or consent, insists that his title cannot thereby be divested, and admits that an ejectment has been commenced for the recovery of the premises. The cause was heard upon the bill, answer, replication and proofs. B. Williamson and S. Scudder, for complainant. I F. B. Chetwood, for defendant. THE CHANCELLOB. In the year 1836, during the rage for speculation in building lots, the defendant made a purchase of a lot in Elizabeth-Town. The deed was never recorded. Tho bill charges, that during the same year the complainant pur- 252 CASES IN CHANCERY, Faults v. Burns. chased this same lot of Sylvaims Hoyt, the agent of the defend- ant, who cancelled the deed made to the defendant, and got tho grantors to make the conveyance directly to him. The answer admits that the defendant was called on by Hoyt, and informed that he could procure a purchaser for the lot, and that he let him take the deed for the purpose of satisfying any person desirous of purchasing that he had the title ; but it is denied that he was au- thorized to make a sale of the premises, or to cause the defend- ant's deed to be cancelled. The defendant brought an ejectment in the supreme court to recover the possession of this lot, and upon the filing of this bill an injunction was issued, which is sti'l in force, restraining the defendant from further pro333dinj i.i that suit, and from instituting any other suit for the same object. The complainant now seeks to have that injunction made per- petual. There can be no doubt that the parties to a deed, in a case not affecting third persons, may by agreement cancel it if it be no- recorded. This may in some cases become necessary to correct some mistake, or to prevent wrong being done ; but such course is not advisable, as tho party destroying the instrument must in all cases show his authority for so doing. The only question here is as to the authority of Hoyt. If ho was authorized, as the complainant charges he was, his acts bind his principle ; if not, the whole transaction is void and a fraud on the defendant. Tho evidence is all on one side ; the defend ant resting his case alone on the insufficiency of the complain- ant's evidence. Thomas Gibbons Trumbull testifies, that he sold the premises to the defendant : that the contract was made with Hoyt for him. Ho never had any deed himself, but the legal title was in Elihu J. Crane, who made the deed. Charles Odling testifies, that Hoyt was much engaged at Elizabeth-Town in the buying and selling of lots. That lie went to the city of New-York with tho complainant after the defendant had commenced his ejectment suit, and stopped at defendant's. On that occasion the defendant eaid Hoyt was his agent in Elizabeth-Town: that he had bought OCTOBER TEEM, 1839. 253 Fanlks v. Burns. the property and sold it to the complainant, and had got the mo- ney, and that he could not get it of him : that if he could not get tho money of Hoyt he would get it of complainant. They were speaking of the lot in question in this suit. Elihu J. Crane testifies, that he first made a deed to defendant for part of the premises involved in this cause, at the request of Mr. Trumbull and Mr. Iloyt ; afterwards, at their instance, that deed was can- celled, and a new one made to the defendant for the whole pre- mises ; and afterwards, at the instance of Mr. Hoyt, this deed was cancelled and a new one made to the complainant. This was done, as Iloyt stated, to save the trouble of going to the defendant who lived in New- York. The defendant afterwards told the witness that he had received twenty-five dollars from Iloyt on the sale made the complainant, as the profits. Jacob G. Crane testifies that the complainant, since his purchase, has put buildings on the premises to the value of three or four hundred dollars : that Iloyt was a large dealer and speculator in lots at Elizabeth-Town, and bought and sold extensively for people in New- York. William II. Price testifies, that he was at the de- fendant's, who keeps an oyster-house in New- York, with Elihu J. Crane. The conversation came up respecting the deeds in- volved in this case. Crane asked the .defendant if he had re- ceived any money from Iloyt ; he said he had received twenty- five dollars as a premium for tho lots he sold complainant. The defendant further stated, that Iloyt had wanted to be his agent in buying some property on the hill at Elizabeth-Town, but that he had been caught in the trap once and he did not want him to get him into another ; that ho had got the upper hand of him once, and he did not want him to do it again. From this evidence, uncontradictcil as it is, tho agency of Iloyt in this transaction is fully made out. The evidence shows fur- ther, that Iloyt received the money on this sale, and has become embarrassed in his circumstances. The defendant has probably suffered by trusting to Hoyt, which has occasioned this wholo difficulty. Some objections were stated to the competency of Elihu J. Crane, but the evidence is so full without his testimony 254 CASES IN CHANCERY, Faulks v . Burrn. tliat it is unnecessary to examine into them. As the complainant lias now a deed which conveys to him the legal title, the only relief he can want is to make the injunction perpetual. Such decree will accordingly be made, with costs. Injunction perpetual, with costs. JOHN S. HOAGLAND v. PETEB LATOUEETTE and Jomr LATOURETTE. The vender of an estate, from the time of his contract, is a trustee for the purchaser; and the vendee, as to t'ue money, is a trustee for tho vendor. If a p'rson who h:is contracted to Bell land, sells it to a third person, tho se- cond purchaser, if he have notice at the time of his purchase of the previ- ous contract, will bo compelled to convey the property to tho first pur- chaser. Being a purchaser with notice of the equitable title of the vendee under the contract, ho stands in the place of the vendor, and is liable to the earn* equity. A judgment creditor, with notice, can stand in no better situation than a pur. chaser. Articles mxde for a valuable consideration, and the money paid, will in equity bind the estate and prevail against any judgment creditor mesne between the articles and tho conveyance; but tho consideration paid must be somewhat adequate to the thing purchased. If the vendee bo a creditor cf tho vendor, aud his design in purchasing ba to pave his debt, and this be known to the second purchaser, equity will regard the purchase money as paid the moment the contract is complete, and a sub- sequent judgment will not attach upon the purchase money in tho hands of the vendee. A judgment creditor mtsne between the articles and the conveyance, will bo restrained by pcrpotaal injunction from enforcing hia judgment against tho estate. BILL for an injunction, filed the tenth day of November, 1837. On filing the bill an injunction was issued as prayed for. John Lotourctto alone answered the bill. A decree, pro confesso, was taken against the other defendant. Tho cause was heard upon OCTOBER TERM, 1839. Hoagland v. Latourette et nl. the pleadings and proofs, at July term, 1839. The facts of the case are stated in the opinion of the chancellor. n. W. Green, for complainant. P. D. Vroom, for defendant. Cases cited for the complainant. 1 Sugden on Vendors, 211, 539; 1 Attyns, 572; 6 J. C. It. 403; 10 Modern, 518; 2 Eq. Co. Ab. 32 ; 2 Vesey, 437 ; 16 Vesey, 249 ; 17 Vesey, 433 ; 15 Vesey, 329 ; 1 P. W. 278, Cases cited for the defendant. 1 ^. Ca. Ab. 320 ; 3 J)ess. 74; 2 TFflwA. (7. C. R. 69; 1 Pa^?, 128, exparte H&vce; 1 P. W. 282 ; 3 Fey, 576 ; 2 F^r/w^, 565 ; 4 P Stillwell v. M'Noely. In the case before me, the title on which the defendant rests la well known, and no discovery is wanted for that purpose ; but the object of the complainant is to set aside as fraudulent a deed on which he claims title. Nor do I see the application of the cases, that a bona fide purchaser without notice will be protected f rora answering in reference to his title. The complainant purchased, probably, with knowledge of the defendant's title, and took hia deed with the intention of questioning the defendant's deed, and thereby saving his debt. This lie had a right to do. As to making the bank a party, as urged by the defendant, I see no propriety in so doing. In this suit there is no controversy with the bank. If the deed given to the defendant is not valid, it must be so declared, but no decree can be had against the bank. Upon the merits, therefore, there is no reason why the defend- ant should not answer ; but on the first exception, as to parties, the demurrer must be sustained, with costs. Demurrer sustained, with costs. CITED in Willinlcv. Mer.*Loan& Itlcg. Co-, 3 Or. Cft.897; Allen'i Bn. v. Roll. 10 C. E. Gr. 165. JOSEPH E. WEST v. ISAAC SMITH, Sheriff of Atlantic. Whore the complainant omits to have the subpoena served and returned at the term to which it is in ule returnable, the injunction ..'ill be dissolved. It is not essential that a subpoena bo served by the sheriff or coroner. It may be Kerved by a private person, but in such case an affidavit most b made of the manner and time of service, and upon the return of the -writ a rale mast I e taken on the defendant to plead, answer or demur, at or before the next stated term of the court, A BILL was filed in this cause for an injunction to restrain the defendant, as sheriff of the county of Atlantic, from selling certain real estate of the defendant under or by virtue of execu- tions at law in the sheriff's hands. The bill was filed on the 9th day of November, 1839, and an injunction pursuant to the 310 CASES IN CHANCERY, West v. Sxith. prayer of the bill allowed and served. At the same time a sub- poena was issued, returnable to January term, 1840, which was never served. Prior to the April term, and before notice was given of the present motion, a new subpoena issued, returnable to April term, 1840, which was returned served. Wilson, for defendant, now moved to dissolve the injunction, for the neglect of the complainant in proceeding with his suit. ) for complainant, contra, stated that on filing the bill a subpoena was issued and delivered to the complainant to be served, but that the writ was against the sheriff, and there were no coroners in the county, so that the subpoena could not be flerved. THE CHANCELLOR. The injunction must be dissolved. The complainant has not proceeded with his suit as he ought to have done. A subpoena in chancery need not necessarily be served by a sheriff or a coroner. It may be served by any other competent person ; but in such case there must be an affidavit of the man- ner and time of service, and upon the return of the writ a rule must be taken upon the defendant to plead, answer or demur at or before the next stated term of the court. It is certainly proper, in all ordinary cases, that the process of the court should be serv- ed by the sheriff or other officer known to the law, but the court has repeatedly sanctioned the service of its process by a private person. * Injunction dissolved, with costs. See cose of Corey v. Voorhies et ai ante, page 5. CITED in Lee v. Cargill, 2 Stock. 832 ; Brown v. Fuller, 2 Beaf, 274; SchcOe V. Schmidt, ] a/cCar.81-271. APRIL TERM, 1840. 311 DANIEL "VV. GOXJS v. GEOBGE AV. HALSTED and others. On on application, by petition, verified by the affidavit of the party, to sol asu'c a sale, tho material f.scts alleged ia tho petition must bo proven. Tho affidavit of tlio I iirty, cxcei>tcstDfact8 peculiarly within his own knowledge, most bo supported by other evidence. It fa noi necessary tV>.at nclvcrticcmcnts of tho BR!O of real cstato by a sheriff cr ci master in, chancery, should bo signed by llu officer with his own proper signature. Whether tho officer's na'iio is signed to tho advertisement by Liinsetf, cr printed, or signed by another is immaterial. In cither case it LJ a virtual signing by tho officer. Whore a sale by a sheriff or master is adjourned, no publication of the adjourn- ment is necessary. \Yhcro a sale is advertised for n specified dny Idweeu the Aour of twzloe and fi'-.c o'clock in the afternoon, and the property is sold iu pursuance of such advertisement, tho ecle will not bo eet asice although (hero is a propriety and convenience in ^specifying a particular hour between twelve and fira o'clock for the sale. Nor will a sale by an officer be set aside because the terms of sale nre unusual- ly btrict or severe, if tho circumstances of tho case call for rigid measures. and no design is manifested to oppress or injure tho defendants. Where a tract of land is divided into distinct parcels, it must bo sold in that way. ON the llth of April, 1840, the defendants filed their petition for relief against a sale made by a master in chancery, by virtue of an execution issued out of this court, upon a decree for tho foreclosure of a mortgage and sale of tho mortgaged premises. All the defendants in tho original cause, consisting of tho mort- gagor, and of subsequent incumbrancers and purchasers of parts of the premises, joined in the petition, which was verified by tho affidavit of one of the petitioners. On filing the petition an order of the court was made requiring the complainant to show cause on the 25th of April, instant, before tho chancellor at Newark, why the said sale should not be set aside and a new sale ordered, and that in the mean time the master should desist from exe- cuting a deed to any of the purchasers at said sale. Affidavits \vere taken on the part of the complainant upon notice, to bo 312 CASES IK CHANCERY, Coxe v. Hoisted ct al. used on tlie argument. No affidavits were taken on the part 01 the defendants. Upon the coming on of the hearing, the counsel of the defendants read the petition, without offering any evi- dence aliunde of the matters therein alleged. H. W. Green, for complainant, declined offering any evidence, and insisted that the facts alleged in the petition were unsupport- ed by evidence, and that the application of the -defendants must bo denied. W. Hoisted and L H. Williamson, for defendants, contra, insisted that it was not necessary to offer further proof in sup- port of the application ; that the petition verified by affidavit was prima facie evidence of all the facts contained in it, and would be taken as true until overcome by proof on the part of the complainant. BY THE CHANCELLOR. The defendants seeic relief agaimt a sale made under the process of the court, upon the ground that the sale was irregular and illegal. The allegation must bo sus- tained by evidence. The petition, verified by the affidavit of tho party, is a foundation for the rule to show cause, and will of course be read upon the argument of the rule ; but it is not com- petent evidence, unsupported by other proof, of the charges therein contained, except as to matters peculiarly and exclusive- ly within the defendant's own knowledge. The petitioners are the actors upon this motion. They are bound to make out their case as stated, and cannot call upon the complainant to support the sale, until they have offered some evidence to i:npeach it. Upon the case as it now stands, I cannot grant the motion. As the defendants' solicitor has acted under a different impression as to the rule of practice, I am willing to grant time, if desired, for the defendants to take affidavits in support of the motion. Upon the application of the defendants' counsel the hearing was thereupon postponed until the seventh of May, with leave APHIL TEEM, 1840. 313 Coxe v. Halsttd et nl. to botli parties to take affidavits to be used upon the hearing. On the seventh of May, 1840, the cause came on for hearing, upon affidavits taken by both parties. It appeared by the petition and affidavits, that the mortgaged premises consisted originally of a farm of about one hundred and thirty-eight acres, situate in the township of Nottingham. That V. II., one of the petitioners, was made a defendant in the bill to foreclose, because he held a subsequent mortgage for one thou- sand dollars upon a part of the premises, consisting of about twenty-three acres. That previous to the filing of the bill of com- plaint, a company was formed for the purpose of improving the mortgaged premises, and incorporated by the legislature of New- Jersey, under the name of the Nottingham manufacturing com- pany, who had purchased the mortgaged premises for sixty thou- sand dollars, payable in the stock of the company. That tire said company had excavated and constructed, upon the twenty- three aero lot mortgaged to the said "W. II., a basin two hundred and thirty feet long by one hundred and thirty feet wide, and made other expensive and valuable improvements on said lot. That the said company had agreed to sell a lot fifty feet front by one hundred feet deep, apart of the said twenty-three acre lot, to J. "W. for six hundred dollars, who had taken possession of said lot and built a lime-kiln thereon. That the said company had also agreed to sell a lot seventy-five feet front by one hundred feet deep, another part of the said twenty-three acre lot, to W. II., who had possession of said lot, and constructed a dry dock and erected a store-house and hay scales thereon at great ex- pense. That all the said improvements were made with the knowledge of the complainant, and without having been forbid- den by him. Twenty days previous to the sale a notice was served upon the master, requesting him to sell the mortgaged premises in nine different lots, five of which were parcels of the twenty-three acre lot. The premises were sold in the manner requested by the defendants, excepting the twenty-three acre lot, which was all sold in one parcel. The premises were eold without Abjection on the part of the defendants,exceptingthc twenty-three 814 CASES m CHANCERY, Coxo v. Halsted et al. acre lot, and wlien that was offered the defendants forbid the sale. The whole of the twenty-three acre lot, with the improve- ments, was sold to the complainant for five thousand dollars, he being the only bidder. By the terms of the sale, each purchaser was required, within half an hour after the premises were struck off to him, to pay one-fourth of the purchase money in cash, or by a check on one of the Trenton banks marked good, and the residue, together with the cost of writing the deed, on the 13th of April then next, when the deed would be delivered. Each purchaser was also required by the conditions to bind himself in writing, at the time of making the first payment, to forfeit the same, if he failed in all things to comply with the conditions of sale. It appeared by the evidence, that part of the twenty-three acre lot had been enclosed in separate parcels, and was occupied by different tenants as farm land ; that roads had been opened and improvements made on other parts of it, wliich however lay in common unfenced, and the bounds of the different lots which had been sold not defined by any visible bounds. The witnesses on the part of the defendants testified that the property was sac- rificed at the sale, in consequence of the terms of the sale being unusually severe, and of the twenty-three acre lot having been sold in mass ; and that if the terms of sale had been usual, or if the twenty-three acre lot had been sold in parcels, as request- ed, it would have brought more than enough to have paid the whole mortgage debt. Witnesses on the part of the complainant testified that the property sold for its fair value. The reasons stated in the petition, and relied upon, on the argument, the set- ting aside the sale, appear in the opinion of the chancellor. W. Hoisted and /. II. Williamson, for defendants, in sup- port of the motion, cited Elmer's Digest, 487, pi. ; lUd 401, pl. 26 ; Ilid4&,pl. 11 ; Ryerson v. Nicholson, 2 Yeatcs, 517 ; Mohawk Dank v. Atwatcr, 2 Paige, C4; Woods v. Monell, 1 J. C. II. 502 ; Rowley v. Browne, 1 Binney, Cl ; Jackson v. Roosevelt, 13 John R. 102 ; JacJcson v. Newton, 18 Join., APRIL TERM, 1840. 313 Coxe v. Halsted ct nl. 7?. 355; 7 GUI and J. 494-512; Merwin et at. v. Smith et al., ante, 196. H. W. Green, contra. THE CHANCELLOB. All the defendants who have any direct interest in the question, have united in a petition that the sale made by the master in this case may be set aside. The salo was made under a fi. fa. issued on the 9th of August, 1839, returnable to the term of October thereafter. The amount to b3 raised by the execution was large, being about sixteen thousand dollars, and the property to be sold consisted of distinct parcels. The master has made two sales on this execution, the first on the 26th of November last, and the second on the 30th and 31st of March last. At the first sale the greater part of the property was purchased by the defendants, who failed to comply with tho terms of the sale, and a resale was therefore rendered necessary. It is the second sale which is now attempted to be set aside ; and that I may be the better understood, I shall consider the several reasons assigned in the order in which they were presented. 1. That the advertisements of the time and place of sale were not signed by tho master with his own proper hand. They were printed notices, containing a description of the property, and the name of the master was printed at tho bottom instead of being written by himself. At this day to sustain an objection of this kind would be too strict a construction of tho act, and create much confusion in the judicial sales of the state. The practice has been different in different counties, but it is quite probablo that as many advertisements are put up with the name of tho officer either printed or signed by another in his behalf, as thero are of those actually signed by himself. The advertisements must be signed by the master or sheriff, so that tho public may understand that they are made by due authority, but whether tho handwriting of the officer is placed to tho paper, or tho sams be done by his authority and direction, cither by printinj or by tho handwriting of another, is not material. In cither case it is 316 CASES IN CHANCERY, Ccso v. Halstetl ct al. virtually a signing by the officer. If disposed to look critically r.t the words of the statute, it would be found that the section of tho act directing a sale, by a master or sheriff, of mortgaged premises, on executions out of this court, does not use the same language with that which directs the course of proceeding on executions from the supreme court. That act provides, that the sheriff shall give notice by advertisements " signed by himself." The act regulating sales oa mortgaged premises, uses this language : " The sheriff, &c., shall give notice by advertisements of the time and place of sale, and proceed in all other respects in the same manner as in case of a writ of fieri facias issued out of the su- preme court against real estate." The words " signed by him- self," arc omitted, and certainly leave the act on this point of very doubtful construction. 2. The master adjourned the sale from the 2d to the 80th of March, without publishing such adjournment in the newspaper. Ilowever expedient a requirement of this kind would be, it is a sufficient answer, that the law makes no provision on tho sub- ject. The publication required by the act only refers to the time and place first appointed for the sale, and not to the adjourned day. That such is its meaning is obvious from the publication be- ing required for four weeks successively prior to the time of sale, and yet an adjournment may be made by the officer for a week or ten days, or for any other time not exceeding one month. The master, however, it seems, did direct advertisements of tho adjournment to bo put up in three public places in the vicinity of the land. This was not required by law, but it evinced a com- mendable disposition to give publicity to the sale. 3. The master advertised the sale for Monday, tho 2d of March, between the hours of twelve and five o'clock in the af ternoon,and not for a precise time within those hours. I would advise every officer to name an hour between twelve and five at which tho sale will commence. There is a propriety and convenience to tho parties and the public in such a course, which should always bo considered, but I do not think it essential to tho validity of tho Bales. Advertisements for sales are generally made between the APRIL TERM, 1840. 317 Coie v. II aisled efr al. hours of twelve and five, without naming any particular hour, and in the absence of any proof of fraud or unfair practice, the sale is good. 4. That the public places at which tho advertisements were put up were not sufficiently scattered, but were too near each oth- er. The land to be sold was in Nottingham township. Two of tho notices were put up in Nottingham, and threo in the town- ship of Trenton. The places appear to havo boon well selected to give publicity to the sale, were in compliance with the law, and there is no foundation for complaint on this point. 5. The terms of sale are complained of as being unusual, se- vere, and destructive to the defendants' rights. This is an im- portant inquiry, and should be well considered. These conditions were, that the purchaser should within half an hour pay one- fourth of the purchase-money in cash, or by a check marked good by one of the Trenton banks ; the residue of the money to be paid at the delivery of the deed on the 13th of April then next. In case of non-compliance with the conditions, the purchaser to forfeit tho first payment and to make good all damages on a re- sale. These are certainly strict terms, but was there nothing in the case calling for rigid measures ? There had been a previous sale made on this execution. The greater part of the purchasers were the defendants themselves, none of whom had complied with the terms of the sale, or offer any excuse for not doing go. The terms of that sale required no payment to be made at the time of sale, but at the giving of the deed, some fifteen days thereafter. The defendants, who were the purchasers, thus failing to take their deeds or pay any money at the time fixed for that purpose, the whole proceeding was of no avail, and the com- plainant was obliged to go over the same process of advertising for t\vo months again, and be thus further postponed in the pay- ment of his debt. When the master came to fix his terms for the second sale he saw the necessity of adopting a course that would prevent another failure, and it was for that reason alone, r.s tho whole case fully shows, and from no desire to oppress or injure the defendants, that he required the payment in cash at 318 CASES IN CHANCERY, Coxe v. Haleted et nl. tlie time of the sale of one-fourth of the purchase money. Un- der the circumstances, I think he was justified in so doing. So far from any disposition being manifested by the master or by the complainant to be oppressive in their course, the whole evi- dence would lead me to think directly the reverse. This execu- tion was issued on the 9th of August. The property was adver- tised first for the 12th of October. On that day it was adjourned, at the request of the defendants, to the 12th of November ; and on that day it was again further adjourned, on the like request, to the 26th of the same month, the day of the first sale. Upon default being made by the purchasers to comply with the terms of sale, the property was advertised by the master again for the 2d of March, and then again, at^the instance of the defendants, post- poned until the 30th of the same month, on which day and the day after the sale took place. Between six and seven months thus passed after the execution was placed in the master's hands before the final sale was made, and every adjournment and de- fault made by the defendants. This does not look like a disposi- tion to oppress the defendants, or to enable the complainant to become the owner of the property. I have no such impression. The complainant wanted his money, and took such steps as he had a legal right to do to procure payment. At the first sale, as the property in the different parcels brought sufficient to pay his debt, he let others become the purchasers; and it is manifest that he became the purchaser at the second sale for the only reason that others would not bid enough to pay his debt, and he thought it more for his interest to buy it in himself than to meet the loss. The master, who is examined by the defendants, says, that in settling the conditions of the sale, h.e was not influenced by the wishes or views of the complainant. He seems to have acted with a correct estimate of the position he occupied as a public officer, bound to do that which under all the circumstances was right in itself, without following the dictation or control of any person. At first he designed to require a payment in cash of one- third of the purchase money, but changed it at the suggestion of the defendants to one-fourth. APRIL TERM, 1840. 319 Coxe v. Hnls'ed et al. 6. That the lot of twenty-three acres should have been subdi- vided and sold in parcels. The general rule is well settled, tint where a tract of land is divided into distinct parcels, it must bs sold in that way. Wood v. Mondl, 1 John. Ch. 505 ; 3L>- hawlt Bank v. Atwater, 2 Paiges Ch. 61. See also the cass of Meroin and others v. Smith and others, in this court. Does this case come within that rule ? This is the important inquiry. After a careful examination of the evidence, and with an earnest desire to protect the defendants from any abuse of their rights, I have come to the conclusion that I cannot disturb this sale upon this ground. There are several considerations which forbid it. 1. The land is not subdivided into distinct parcels so as to free the complainant from embarrassment in attempting to sell it in lots. This twenty-three acre lot was purchased a few years since, when property brought a high price, of the complainant, it being an open field in the ordinary situation of farm lands. The defendants intended to turn it into building lots, and with that view laid streets' across it in different directions and made some improvements upon part of it, by building a basin, store-house and lime-kiln. These streets, however, it seems from the evi- dence, are not laid out according to law, nor in many instances are they even defined by fences. Much of the land lies in com- mon. It is, in fact, one among many of those unfortunate cases in which lands lying in the neighborhood of towns and cities have been set apart on paper for extensive improvements, but which have failed from the embarrassments of. the times, and that, too, with great loss to the purchasers. To oblige a master or sheriff to be bound by such subdivisions of property, would bo attended with great uncertainty, and be a perversion of the spirit and intention of the rule. 2. The decree and execution in this case fixed the order in which the property should be sold, and the sale has been in conf ormity with them. There was great care taken at that time to secure the rights of all parties, and y- tiiaouy will bo excluded. The adinisfibility of the evidence depends on the question, whether the wit- ness lies any interest beyond that of a inero trustee. If ho has any individ- ual conctru iu the case, the evidence is incompetent. Where the interest of a witness may be release i by tho party offering him, and: no objection i.-i made to the witness on his examination, nil objection mado for tho first timo at the hearing will not ba sustained, without giving the parly off Tin; him au opportunity to release that ia 1 . crest and to re-eiainino. tho \vi.ness. Par tiesaro always examined as witnesses, by the rery terms of tho orders, subject to all just exceptions at tbe hearing. But witnesses, not parties,, should bo objected to at the time of their examination. The declaration, I y a witness, of his intention to pay a Bum of money rather than tlio party should lose, will not render the witness incompetent, unloiu he bo legally responsible for the money. An answer, so far aa it ia a response to the bill, will avail tho defendant 42 322 CASES IK CSAKCERY, Neville v. Demeritt et nl. uale it be overcome by the testimony of witnesses; but so fur aa i seta up new matter it must be proved. It ia a rule in equity that au ineumbraaco shall be kept alive or considered ex.iuguished, as will mofet advance the justice of tho case. Where a d ed was delivered through mistake beforo the whole of the purchase money was paid or secured, too grantor was permitted to protect himself ngainst the effects of the mistake, by keeping alive, in tho hands of a trus- tee, au iucumbrance on the premised cror.ttd by himr.olf before the sale, al- though tho dead contained covenants of general warranty, and against all iucumbrar.ccs. BILL for foreclosure, filed April 3, 1838, stated, that the de- fendants, Albert C. Demeritt and wife, on the first day of Octo- ber, 1836, executed to Horace H. Ladd a bond and mortgage to secure the payment of eight thousand dollars, in one year from the date thereof, with interest. The mortgage was upon a house and lot in the city of Newark, and was acknowledged on the 28th day of October, 1836. That the mortgagee, Horace H. Ladd, on the 28th day of November, 1836, assigned the said Ixmd and mortgage to the complainant. That the assignment of the mortgage was duly acknowledged, and was recorded, to- gether with the mortgage, on the 29th day of November, 1S36, in the clerk's office of the county of Essex. That the mortgaged premises were conveyed to said Albert C. Demeritt by William Tnttle and wife, by deed dated the 19th day of February, 1836, for the consideration of thirteen thousand five hundred dollars, by which deed the said William Tuttle covenanted that he was the lawful owner of the said premises ; that at the time of the execution of the said deed, the premises were not incumberec T by any mortgage, judgment, or limitation, or by any incum branee whatsoever, by which the title of the said Albert C. De- meritt to said premises could or might be changed, charged, al- tered or defeated ; that the said William Tattle and wife had good right, full power, and lawful authority to sell and convey the said promises in fee ; and also, that lie the said William Tuttlo would warrant, secure, and for ever defend tho said premises unto the said Albert C. Demeritt, his heirs and assigns, against tho lawful claims and demands of all and every person JULY TERM, 1840. 323 Neville v. Di merit t ct al. and persons, freely and clearly freed and discharged of and from all manner of incumbrances whatsoever. That the said William Tuttle and wife, before making the said deed of conveyance to Albert C. Demeritt, on the 31st day of May, 1834, executed a deed of mortgage upon apart of the same premises, to Edward Blackford, John Agg, Francis G. Blackford and William B. Blackford, to secure a bond given by the said William Tuttle, conditioned for the payment of one thousand dollars with inter- est, on the 31st of May, 183C, which was duly recorded in the clerk's office of the county of Essex, and on the 26th of June, 1835, was assigned, with the bond, to George Douglass. That Douglass, having occasion for the money secured by the said bond and mortgage, called on WiWam Tuttle to pay the same; but that the said William Tuttle, tc preyent a prosecution being commenced against him upon the said bond, and with an intent to defraud the said Albert C. Demeritt and his assigns, and com- pel his assigns to pay and satisfy the said bond and mortgage, contrary to and in express violation of the covenants contained in the said deed made by the said William Tuttle and wife to the said Albert C. Demeritt, and for the purpose and with the inten- tion of setting up the said bond and mortgage as an outstanding valid and existing claim upon the premises therein described, by a combination and contrivance with his son Joseph N. Tuttle, cither directly or indirectly, on or about the 14th of August, 183G, procured an assignment of the said bond and mortgage to be made to the said Joseph N. Tuttle, who still holds the same, and claims by virtue thereof an interest in the mortgaged premises. That the said Joseph N. Tuttlo has not any direct interest in the said bond and mortgage so assigned to him, or in the monies secured thereby, but holds the same as agent or tnu> tee for the eaid William Tuttle, who furnished the means paid to George Douglass as the consideration of the said assignment; j and insists that tho said bond and mortgage should be decreed to bi delivered up to be canceled. The bill further insists, that even if William Tuttle did not funish the means paid as the consideration for said assignment to Joseph N. Tuttle, and the 324 CASES IN CHANCERY, Neville v. Demeritt et al. aid mortgage remains in liis hands a valid and subsisting lieu upon the said mortgaged premises, yet that William Tuttla ought, in order to avoid circuity of action, to be compelled by virtue of the covenants contained in his deed to Albert C. De- meritt, (to the full benefit and protection of which, the com- plainant insists he is entitled,) to satisfy and cancel the said bond and mortgage given by the said William Tuttle and wife, and assigned to the said Joseph ~N. Tuttle, and relieve the mortgaged premises from the same ; or, in case the mortgaged premises should be liable to pay the same, and should not bring sufficient to pay and satisfy the complainant's mortgage, then that William Tuttle should be compelled to pay the amount due upon tho .bond and mortgage given by him and assigned to Joseph !N". Tuttle, if the deficiency arising upon the sale of the mortgaged premises shall amount to that sum, or so much thereof as will gatisfy such deficiency. The bill prays the usual decree for foreclosure and sale of the mortgaged premises ; that Joseph N". Tuttle and William Tuttle may be decreed to deliver up tho said mortgage so given by tho said William Tuttle and assigned to Joseph N. Tuttle, to be cancelled ; that the said William Tuttlo may be compelled to satisfy and cancel the ame,.and re- lieve the said mortgaged premises therefrom, and be decreed to keep and perform the covenants contained in his deed to Albert C. Demeritt ; the complainant decreed to be entitled to the full benefit arid protection of said covenants, and bo protected from and against the eaid mortgage held by Joseph N. Tuttle ; and tliat William Tuttlo may bo decreed to satisfy any deficiency that may arise in satisfying complainant's mortgage by reason of the said mortgage asssigned to- Joseph N. Tuttle. The answer of William Tuttle admits the execution of tho deed from himself and wife to Albeit C. Demeritt, the prior mortgage from Tuttle and wife to- Edward Blackford and others, and its assignment, as set forth in the complainant's bill ; but fttatcs, that on or about the 1st of April, 1835, this defendant, while tho owner and in possession of said premises, agreed witb William T. Voorhics (liis nephew) to sell a part of the mort- JULY TERM, 1840. 325 Neville \. Deraeritt et al. gaged premises described in the bill of complaint to him, for the consideration of two thousand two hundred dollars, to be paid or secured by said Voorhies on the delivery of the deed. That it was understood and agreed between this defendant and said Voorhies, that the lot should be conveyed free and clear of all incumbrances, and that so much of the consideration money to be paid by Voorhies as should be necessary for that purpose, should be applied to the payment and satisfaction of tho said mortgage given by defendant to Edward Blackford and others. That Voorhies and this defendant, having full confidence in each other, the agreement between them was not reduced to writing, nor was any memorandum made thereof. That Voor- khies being unprepared to pay the purchase money, no deed was made to him, but he, with the knowledge and consent of this defendant, took possession of the said lot, and in the summer of 1835 erected thereon and on an adjoining lot owned by Voorhies, two large brick buildings. That at different times during the summer and fall of 1835, Voorhies paid this defendant two hun- dred and eighty-one dollars and sixty-three cents, in part pay- ment of the sum of two thousand two hundred dollars, agreed to be paid as the purchase money of said lot, and for the interest thereon. That in the month of February, 1836, Voorhies in- formed this defendant that he had agreed to sell the said lot, with other real estate, to Albert C. Deineritt, who had agreed to pay to this defendant the remainder of the price stipulated to be paid by Voorhies to this defendant, which then amounted to about two thousand dollars, as follows, viz : to pay one thousand dol- lars in money on the delivery of the deed, and to secure the pay- ment of the remaining one thousand dollars, with interest, in one year, by bond and mortgage upon the said lot, and request- ed this defendant to convey the lot directly to Albert C.Demcritt, which defendant agreed to do when Demeritt complied with the terms above stated. That Voorhies caused a deed for said lot, from this defendant and wife to Demeritt, to be prepared, which was duly executed and acknowledged, and which defendant ad- mits was the same deed as that set forth in tho bill of complaint 326 CASES IN CHANCERY, Neville v. Demerittet al. That said deed was retained by defendant in his hands until D.A.IL esquire, by whom the said deed was prepared, and who defendant believed acted as attorney both for Voorhies and De- raeritt in the tranaction of the business, handed to defendant a bond executed by A.C.Demeritt to this defendant, bearing dale February 19th 1836, conditioned for the payment of one thou- sand dollars in one year from date, with interest half-yearly, and also a mortgage to secure the payment thereof, made and exe- cuted by A.C.Demeritt and wife to defendant, upon the lot de- scribed in the last mentioned deed ; and the said D. A.IT, at the same time requested defendant to hand him the deed of convey- ance executed by defendant and wife to Demeritt, as before men- tioned ; and this defendant being informed by D. A. II. that Voorhies and Demeritt had settled between themselves the mat- ters connected with the transfer of the said real estate, and be- lieving that D. A.H. fully understood the terms upon which this defendant was willing and had agreed to convey said lot, and that he would not deliver the said deed to Demeritt until the sum of one thousand dollars, agreed to be paid on the delivery of tl e said deed, had been fully paid and satisfied, gave the said deed to D. A. H. and received from him Demeritt's bond and mort- gage. That defendant afterwards learned to his great surprise, thatD. A.- II. was ignorant that the said sum of one thousand dollars was to be paid on the delivery of the deed, and that he iliad immediately after the delivery of the deed to him by defen- dant, lodged it in the clerk's oifice of the county of Essex, and caused the same to be recorded according to law. That this de- fendant shortly afterwards gave notice to Demeritt that the deed tad been put on record through mistake, that defendant was en- . titled to receive one thousand dollars before the deed was rendered operative, and requested Demeritt to pay the same, which he ' refused or neglected to do. Admits that the consideration in tho deed from defendant and wife to Demeritt is therein stated to be thirteen thousand five hundred dollars, and that it is expressed to have been paid by Demeritt to this defendant and his wife at the execution of the deed, and that tho receipt thereof is thereby JULY TERM, 1840. 327 Neville v. Demeritt ct nl. acknowledged ; but expressly denies that this defendant ever made any bargain with Demeritt respecting said lot, or that ho ever had any communication with him or any person on his be- half respecting the sale and conveyance of said lot, before tho communication with D. A. H. above referred to ; that ho ha? ever received any consideration for the sale and conveyance of the said lot, other than the sum of two hundred and eighty-ono dollars and sixty-three cents, above stated to have been paid by Yoorhies, and the further sum of twenty-three dollars and thirty- seven cents, interest on the said eum of two thousand dollars, up to the date of the deed from defendant and wif e to Demeritt, and tho further sum of one thousand dollars secured by De- meritt's bond and mortgage to this defendant. States that at the time that Demeritt, while negotiating with Voorhies for the pur- chase of the lot, was apprised that the title was not in him, but in this defendant, that two thousand dollars of the purchase mo- ney agreed to be paid by Voorhies remained unpaid, and that this defendant was unwilling to deliver a title until one thousand dollars should be secured by mortgage, and the remaining ono thousand dollars should be paid in money, which this defendant insisted on receiving to enable him to discharge his mortgage. for one thousand dollars upon the mortgaged premises ; and that the said Demeritt agreed to pay the said sum of one thousand dollars in money, and to execute a bond and mortgage to this defendant upon the said lot, on the delivery of the deed by de- fendanL That at the time of receiving the deed from this defendant and his wife, Demeritt knew of the mortgage thereon previously given by this defendant and Ins wife to Edward Blackford and others, and that the same remained uncanceled, a legal incumbrance upon the said lot. Admits that about tho 4th of August, 1836, this defendant, being called upon by the agent of George Douglass, to whom the bond and mortgage given by this defendant to Edward Blackford and others had been assigned, for the payment thereof, raised the sum of one thousand and forty dollars and sixty-seven cents, the amount of principal and interest due thereon, and thereby procured an as- 328 CASES. DT CHANCEBY, Neville v. Demeritt ct al. signment of said bond and mortgage to be made to his son Jo- seph ~N. Tuttle, and that the said Joseph N. Tuttle holds tho t&id bond and mortgage as trustee and agent of this defendant, and has no direct interest therein or in the monies secured there- by. Denies that the said assignment was by the defendant pro- cured to be made with any fraudulent intent or purpose, but solely to protect himself from loss or injury in consequence of the recording of the deed of conveyance for the said lot through mistake and misunderstanding. Insists that the mortgage exe- cuted by this defendant and wife, and held by Joseph N. Tuttle as trustee for this defendant, is a valid and subsisting lien and incumbrance on the lot of land therein described, and entitled to priority in payment over any mortgage or incumbrance upon the same property created or impose^ subsequent to the registry of the said mortgage. The answer of Joseph !N". Tuttle states substantially tho same matters contained in the answer of "William Tuttle, and admits that he holds the bond and mortgage executed by William Tut- tle and wife to Edward Blackford and others, and assigned to him, as agent or trustee for the said "William Tuttle. After the cause was at issue, an order was made on the application of "William Tuttle, one of tho defendants, for the examination of Joseph "N. Tuttle, a co-defendant, in pursuance of which order tho testimony of the said J. N. Tuttle had been taken and was read upon the hearing. The cause came on for hearing upon the bill, answers of Wil- liam Tuttle and Joseph "N. Tuttle, replications and proofs. E. Vanarsdale, jun. and E. Vanarsdale, for complainant, insisted that J. N. Tuttle was not a competent witness. lie is a party ; he may pay costs or receive them. By his answer he prays for costs : *2Mad. Chan. 316 ; 3 J. C. R. 613; 3 Aik. 401. lie is also a trustee : 2 Brown? s Ch, Cfcwes, 330; 3 Paige, 5G4. That Win. T. Voorhies was also incompetent. He has de- clared that he would pay tho thousand dollars to Tuttle before ho should lose it IIo is also interested, for UQ ia bound to pay Tuttle, uULY TEEM, 1840. 320 Neville v. Demcrilt ct al. The deed from Tuttle to Dementi; is absolute on its face. There was no declaration of a contrary intention at the time of executing it. Declarations of the intention or understanding of ctween "William S. Scars, complainant, and William Ro- berts, jun. and Joseph Ogden, defendants. Upon reading and tiling the petition of "William Roberts, jun., one of the defendant* in this <5anee, it appearing to the court that the bond and niort 340 CASES IK CHANCERY, Matthews v. Roberts. gage mentioned in the complainant's bill of complaint, executed by the said "William Roberts, junior, to the said "William S. Sears, bearing date the seventh day of October, in the year of our Lord one thousand eight hundred and twenty-six, to secure unto tho said "William S. Sears, on or before the seventh day of October, in the year of our Lord one thousand eight hundred and twenty- seven, the payment of the sum of two thousand dollars, with interest thereon at seven per cent, payable semi-anually, have been decreed by the court of appeals in the last resort in all causes of law and in equity, to be usurious and utterly void. It is thereupon, on this sixteenth day of April, in the year of our Lord one thousand eight hundred and thirty-five, ordered, on motion of Henry "W. Green, of counsel with the said "William Roberts, junior, that the said bond and mortgage be delivered up to be canceled." This suit and this decree the defendant pleads in bar of this action. The plea is clearly defective, and must be overruled. "While it is stated as a general allegation, that the suit pleaded was for the same matters embraced in this action, yet when the decree is recited it appears to have been on another matter alto- gether. Although a former decree pleaded in bar need not ap- pear to have been precisely between the same parties with the one to which it is pleaded, it must always appear to have been for the same subject matter. This bill seeks to correct a mistake in the sheriff's return, while the decree stated in the plea shows that a certain bond and mortgage for two thousand dollars, made by Roberts to Sears, and bearing date the 7th of October, 1826, was declared usuri- ous and void, and ordered to be canceled. The plea on its face shows that the subject matter of the two suits are not at all the same, and therefore the one can be no bar to the other. Tho bond and mortgage declared void, is not the same with the one on which the decree in this suit was entered, either in date, amount, or parties. How then can any decree respecting those instruments be set up as a bar to this action ? There is no aver- ment in the plea that the former decree, or the bond and mort- JULY TERM, 1840. 341 Matthews v. Roberta. gage on which the same is founded, were ever in any way merged in those stated in the plea, or that they have any con- nection with each other. From an intimation in the briefs fur- nished rue, I should be led to suppose that the bond and mort- gage set out in the plea were taken as additional security for the same debt with the decree set out in the bill, still the one may be tainted with usury and the other not, or they may be all tainted ; it will depend on the contract. What the facts are do not ap- pear, and therefore that question cannot now be decided. Does this plea state on its face any matter, which if true, would be a bar to this action ? This is the only question now to be settled. As the plea is drawn, it can have no-such effect. If the defendant has a substantial defence which cannot avail him from the inaccurate manner in which his plea is drawn, I am relieved by the consideration that he may claim the full benefit of it by answer. The plea must be overruled with costs, and the defendant allowed forty days to answer. Order accordingly. CITED in, Cummins v. Wir^ 2 Hal. Ch. 88. BENJAMIN F. BEOOKFIELD and others v. POLLY WILLLLMS and others. la cquitv there is no necessity that a partition should be so made as to give each party a share in every part of the property. Each party must have their share in value, which is all that is required. To make the value of the several shares equal, one party may bo reqiired, under certain circumstances, to pay money on his share to those xvho re- ceive a share of less value. An equitable partition may bo made so as to assign that portion of th land oa which the improvements are placed to tho person who has made them. BILL ior partition, filed by the children and heirs at law of Jacob Brookfield, deceased, states, that Samuel Wood, deceased, seized in fee of fourteen acres of land, situate in the town- 342 CASES IN CHANCERY, Brookfield et al. v. Williams et el. ship of Railway, in the county of Essex, by his last will and testament, dated February 1st, 1T92, devised the same to his daughter Phebe, the wife of James Kinsey, during her natural life, and after her decease unto and among her surviving chil- dren ; and after making the said will, and long before the 28th of November, 1811, the said Samuel "Wood died, and the said James Kinsey thereupon entered into the possession of the de- vised premises. On the 28th of November, 1811, James Kin- sey and Phebe his wife, and Samuel Kinsey one of their sons, mortgaged the said fourteen acres to David Ludlow, to secure the payment of a bond given by the said Samuel Kinsey to the said David Ludlow, conditioned for the payment of two hundred and fifty dollars, with interest ; which bond and mortgage, in November, 1816, passed by assignment to the said Jacob Brook- field in his life time, and still remains unpaid. Jacob Brookfield died 1837, possessed of the said bond and mortgage. Phebe Kinsey also died in 1837, having survived her husband, James Kiusey, and had having eight children, all of whom survived the testator, Samuel Wood. The said Jacob Brookfield in his life time became seized by purchase of the shares of five of the children of the said Phebe Kinsey, including the share of Sam- uel, which was covered by the above mentioned mortgage ; which shares, on his death, descended to the complainants, his children and heirs at law. He took possession of the whole of the said fourteen acres many years before his death, by virtue of his mortgage above mentioned, and continued ia possession at the time of his death. At the time he entered into possession it was not the interest of the said Phebe to redeem the mortgage, the amount due thereon exceeding the value of her life estate ; and the annual value of the said land, in the condition it then was, from the time he took possession until his death, was in- sufficient to satisfy the mortgage. At the time Brookfield took possession, there was an old and ruinous dwelling-house and barn on the premises, not in tenantable condition, and not worth repairing ; the fences were old, and the land poor and unculti- vated. Brookfield repaired the fences, manured and improved JULY TEEM, 1840. 343 Brookfield et al. y. 'Williams et al. the land, and erected a new dwelling thereon at a cost of two thousand five hundred dollars, and other buildings at considera- ble expense ; all which are yet nearly new, and in good condi- tion. The bill prays a reference to a master to ascertain the es- tate and interest of the complainants in the said land, the in- creased value thereof by f encing, manuring and cultivation ; tho estate and interest of the defendants, and a decree for partition between the complainants and defendants, saving to the com- plainants the buildings and improvements, and allowing for tha increased value of the lands by fencing, manuring and cultiva- tion ; that a commission inuy issue and commissioners be ap- pointed to make partition ; that all proper parties may join in conveyances agreeably to the partition, and that the parties in- terested may be decreed to pay the costs arising in the cau3D o proportion to their respective interests. The answer of "William Williams and Polly his wife, and Susan "Wiley, (the said Polly and Susan being two of tlio cliil- dren and heirs at law of James Kinsey, deceased,) admits tho title of tho complainants to a part of the premises, and thoir right to partition, and assents to a decree for partition in cuch way as to secure to them their rightful interest in the said lanua and buildings, and in the rents and profits thereof ; but insists that the said Polly and Susan are entitled each to one equal sixth part of the said premises ; that Jacob Lrookficld obtained possession of the land under the right and estate of tho tenant for life ; and that the improvements made by him on tho snid premises, being made during the continuance of the said life estate, are subject to the same rules, and that the defenchnls have the same interest in them, as if they had been made by the tenant for life during the continuance of the life estate. The cause was set down for hearing upon the bill and an- swer. 'Sciiddcr, for complainants. 0. S. Hoisted, for defendants. CASES IN CHANCERY, I ^. < * - Brookfit-ld et al. v Williams et al. THE CHANCELLOR. - The complainants, as heirs at law of Jacob Brookfield, deceased, by their bill ask the aid of this court for a partition of certain lands between them and the defendants. There is no objection made to a partition ; in fact, the defendants by their answer do not deny the complainants' title to a share in the lands, and are desirous that a partition should take place, but the difficulty arises as to the manner in which the same shall be made. The complainants insist that a division should be BO made as to allow them the benefit of certain improvements placed by their ancestor on the lands, while the defendants claim an equal division according to their shares as well in the lands as in the improvements on the same. Tin's is the question, and tho only one now to be settled. The lands consist of fourteen acres, situate at Rah way, in the county of Essex. They were devised by Samuel Wood, the former owner, by his last will and testament, to his daughter, the wife of James Kinsey, during her natural life, and after her death to be divided among such of her children as might be liv- ing at the time of her death. . Samuel Wood died, and his daughter and her husband Kinsey went into possession of the lands, and with one of their sons executed a mortgage on tho same, which came into the hands of Jacob Brookfield by assign- ment, and under which, for non-payment of the monies intend- ed to be secured thereby, he entered into possession of tho pre- mises. Kinsey, the husband, died many years ago, and his wife in the year 1837, having had during their marriage eight children, seven beside the one who joined in the mortgage. Two of these children died before their mother, as is believed, leav- ing the property to be divided among the remaining six, or among those who represented their interests. Four of theso shares were purchased by Jacob Brookfield, and descended to his heirs at law, the complainants ; and the remaining two shares belong to two daughters of Mrs. Kinsey, who are the defendants. This, from the pleadings, would seem to be the situation of the parlies and their interests. After Jacob Brookfield had so entered into possession of tho JULY TERM, 1840. 345 BrookfieU et al. v. Williams ct al. premises under Lis mortgage, and had purchased the shares of the children as before stated, he built a new house and out- buildings on the premises, at a cost of two thousand five hun- dred dollars, and greatly improved the lot by cultivation and by making new fences. There was an old house and bam on tho place, which he pulled down, as they had gone to decay and were much out of repair. There would seem to be no doubt that Crookficld made his improvements with the honest purpose of increasing the value of the property and rendering it more productive, and so far as appears they were made without any opposition or objection from any quarter. His rights were ac- quired in good faith and upon a" fair and full value. Whatever the strict rule may be at law, in this court it is quite certain there is no necessity that a partition should be made so as to give each party a share in every part of the proper- ty. If there be a house and land sufficient to give the house to one and the land to another, it may be so made. It is no object so to set oil the shares as to lessen the value of any part. If there be but a single house, and nothing out of which the shares of the others can be had, then the house must be divided, but otherwise not. Each party must have their share in value, which is all that is required. So also, to make the value equal,one party maybe required, under certain circumstances, to pay money on his share to those who receive one of less value : Earl of Claren- don and others v. JTorsley,!. P. Wins. 447. The principle that an equitable partition may be made, BO as to assign that portion of the lands on which the improvements are placed to the person who has made them, is fully recognized in the case of Town v. Needham, 3 Paige's Chan. Rep. 553. Tho chan- cellor in that case says, " If, therefore, this court should arrive at the conclusion, that Harney was entitled to recover one fourth of the property, there should be a decree for an equitable par- tition, so that tho complainant may have assigned to him that part of the premises on which the buildings have been erected."- Judge Story, in his treatise on Equity, 2 vol., second edition, 610, speaking on this subject, says, " A court of equity does no 45 346 CASES IN CHANCERY, Brookfiel.l et al. v. Williams et al. act merely in a ministerial character, and in obedience to the call of the parties who have a right to the partition ; but it founds itself upon its general jurisdiction as a court of equity, and ad- ministers its relief, ex acquo et bono, according to its own no- tions of general justice and equity between the parties." < I cannot view the case before me (as contended by the de- fendants' counsel) as similar in principle to the case of improve- ments placed on lands by a tenant for life, and then seeking re- muneration at the hands of the remainder man. In this way the estate in remainder might be encumbered so as possibly to defeat it altogether ; for the improvements made might exceed the value of the estate or the ability of the party to pay them. These complainants ask no remuneration for their improve- ments at the hands of the defendants ; but only that the part of the lands on which the house and buildings stand may be assigned to them as their share. This works no injustice to the defend- ants ; whereas a contrary rule would greatly enhance the value of their shares to the injury of the complainants. It must l>e remarked, too, that when these buildings were erected, Brook- field had more than the life estate ; he was the owner of the greater part of the shares of those in remainder. I have found no case where this question has been discussed and settled fully, nor have counsel been able to furnish me with any. The justice of the case, however, strikes me as plain, (and that is mainly to be looked at,) that the complainants shoull be allowed their share in the land on which the buildings erected by their ancestor are located. If the land on which they stand be more than their share, they must make recompense in mo- ney ; but if the remaining lands are sufficient to give the de- fendants their share in value, it must be given out of them. If I am right in the conclusion to which I have come, that the complainants are entitled to the present buildings, it is clear that the defendants are entitled to their share in the value of the old buildings which were pulled down, and as I think, at the time they were pulled down. They are also entitled to their share in the rents and profits from the death of their mother, JULY TEEM, 1840. 347 Brookfield et si. v. Williams et al. when their rights accrued. For the fencing and cultivation, as it properly belonged to the party in possession having the life es- tate to keep them up, I shall make no allowance for them. Before directing a commission to make partition, it will be ne- cessary to have a reference to a master. I shall, therefore, for the present, send the case to a master, to ascertain what are the estates and interests of the complainants and defendants, re- spectively, in the land in question ; what buildings were put on the place by the complainants' ancestor ; what was the value of the buildings pulled down and destroyed by him at the time they were so destroyed, and the amount of the rents and profits from the death of Mrs. Kinsey ; and also, whether the property is so circumstanced that a division can be made by assigning the land on which the buildings are situated to the complainants, and leave sufficient to give the defendants their shares in value out of the residue. All other questions are reserved. Order accordingly. CITED in Olert v. Olert, 1 Hal. Ch. 408; Hall v. Piddack, 6 E. Gr. 814; Polhemtuv. Empson, 12 C. E. Gr. 105. JAMES BEDEN Y. LEMCEL M. CRANE and others. "NYhcre the assignment of a judgment constituting a Hen on mortgaged pre- mises is absolute and unconditional, the assignor is not a necessary parly to a bill for foreclosure. The multiplication of parties should bo avoided whenever they Lave nc in- terest at stake in the cause. BILL for foreclosure. The bill charges, that one William Green had recovered a judgment in the circuit court of the county of Essex, which remained a lien on the mortgaged pre- mises, and that the said judgment had been assigned to one Daniel Price. The assignee of the judgment was made a party to the suit, butthe assignor was not. A demurrer was filed to the bill on behalf of Lemuel M. Crane and others, defendants, assigning for cause of demurrer, that "\Villiam Green, the as- 348 CASES IKT CHANCERY, Bruen v. Crane et al. signor of the judgment, was not made a party. The cause was heard upon the demurrer. W. M. Svudder, in support of the demurrer, insisted, that the assignor as well as the assignee of a judgment must be made a party, for the legal right of action remains in the assignor ; the equitable interest only is transferred to the assignee. He cited Mitfortfs PL ly Jeremy, 179 ; 1 Vesey,jr. 463 ; Ca&vert on Parties, 240 ; Edwards on Parties, 175. 0. S. Halsted, contra. THE CHANCELLOE. The assignor of a judgment assigned is a proper party, but not an indispensable one. I am aware that the cases cited in support of the demurrer, do indeed require the assignor to be made a party in all cases, but the whole subject will be found reviewed in Story's Equity Pleading, 149, and the above distinction taken. Where the assignment is absolute and unconditional, there is no reason for making the assignor a party. It has been decided in this court* that a mortgagor, who has parted with the equity of redemption, is not a necessary par- ty ; and I can see no stronger reason for making the assignor of a judgment a party, than the mortgagor who has parted with all his interests in the lands. The multipication of parties should be avoided whenever they have no interest at stake in the cause ; it can only tend to create expense and embarrassment. The demurrer must be overruled, with costs. Yreeland v. Loubat, ante, page 104. CASES AI\TTTDOEI> ZH THE COURT OF CHANCERY OF THE STATE OF NEW- JERSEY. OCTOBER TEEM, 1840. ANN HARTSHORNE v. WILLIAM HABTSHORNE. It is Bottled at thu diy, that the courts of Jaw and equity hold a cone rrent jurisdiction in relation to dower and partition ; and i i many cases there ia an indispensable necessity for the exercise of this jurisdiction by a court of equ ty. If the 1 'gal title of the complainant be denied, it is in the power of the cou: t to send that question to be Uriel at law, and such is the universal practice. A purchaser of the equity of redemption at a sheriff's sole, takes the property cum onere, and acquires no rights beyond what remain in the mortgagor after satisfying the incumbrance out of the land. The purchaser of the equity of redemption will in no event be permitted to hold the land discharged of the incumbrance ; and if he attempt to make the debt by buying up the bond and mortgage, and recovering the amount unjustly out of the obligor, tho debt will in his hands be considered extin- guished. It seems that the purchaser of the equity of redemption is liable to the extent of the laud purchased, and no further, and that he will at all times be dis- charged upon releasing the land. If the husband before marriage, or in conjunction with tie wife after mar- riage, execute a mortgage, the widow can only hare her dower subject to such mortgage ; and if the mortgage be foreclosed and a sale made, the widow's rights are barred except as to the surplus after s&t sfying the mort- gage. S50 CASES IN CHANCERY, Hartshorne v. Haitshorne. If the purchaser of the equity of redemption take an assignment of the mort- gage; the debt is not thereby merged or extinguished, and the w.dow is en- titled to her dower in the equity of redemption only, subject to the mort- gage. THE bill states that the complainant is the widow of Richard S. Hartshorne, late of the township of Freehold, in the county of Monmouth, deceased. That the said Richard S. Hartshorno in his life time, and during the complainant's coverture, was seized in fee of divers messuages, lands and tenements, in tho said bill of complaint particularly described. That the marriage of the complainant with -the said Richard S. Hartshorne was duly solemnized on the 3d of August, 1820, and that they lived together as man and wife until the death of the said Richard, which occurred in the month of October, 1833. That on tho 25th of April, 1827, judgment was recovered in the inferior court of common pleas of the county of Monmouth, against the said Richard S. Hartshorne, upon which judgment execution was issued j and that by virtue of the said execution certain real estate of the said Richard was sold, on the 5th of January, 1828, subject to all legal and prior incumbrances, for the sum of two dollars, to William Hartshorne and Esek Hartshorne, two of the children of the said Richard S. Hartshorne. That the said Richard S. Hartshorne, prior to hia marriage with the complainant, and on or about the 3d of June, 1808, executed to one Edmund "Williams a mortgage upon the premises sold by virtue of the said execution, to secure the payment of three thousand dollars, which at tho time of the said sale had been paid to the said Edmund Williams excepting about eleven hun- dred dollars, which remained a lien and incumbrance upon said premises ; and that the said mortgage has been assigned by the said Edmund Williams to the said William Ilartshorne, one of the purchasers at the sheriffs sale. That on the 12th of April, 1824, the said Richard S. Ilartshorne and his wife, the com- plainant, executed a mortgage on said premises to Jacob Quack- cnbush, to secure the payment of two thousand two hundred dollars, which at the time of the said sheriffs sale was reduced OCTOBER TERM, 1840. 351 Ilartsliorne v. Hartshorne. by payments to about one thousand six hundred dollars. That the said lust mentioned mortgage has been assigned to one John "W. Holmes, and is paid and satisfied excepting about six hun- dred dollars, which still remains due thereon. The bill further states, that other mortgages upon the said premises were exe- cuted by the said Richard S. Ilartshorne in his life time, which have been paid and satisfied. That on the 2d of May, 1835, the said Esek Ilartshorne and William Hartshorne sold and conveyed a part of the said premises by them purchased at the sheriffs sale, to Daniel Baker ; and on the 24th of December, 1835, the said Esek Hartshorne sold and conveyed his undivided half part of the residue of said premises to the eaid William Hartshorne. That from the death of the complainant's husband she has held and en joyed the mansion house, and refused to deli ver up the possession thereof, and has also refused to re- lease her dower in the said premises, but has requested the samo to be set off to her. That no settlement or provision in lieu of dower having been made for the benefit of the complainant upon or before her marriage with the said Richard S. Hartshorne, sho became entitled upon his death to dower in all the lands of which he was seized in fee at any time during the coverture, and par- ticularly in the lands owned and occupied by the said "William Hartshorne. That nothing has been paid her in satisfaction or in lieu of her dower. The bill prays that the complainant may be decreed to be entitled to her dower in the said premises and also to one-third of the rents, issues and profits thereof, accruing since the death of her husband or her demand of dower ; and that an account may be taken of what is due to her in that be- half, and that the said William Hartshorne may bo decreed to pay the same. That she may be let into possession and receipt of the said rents and profits, and decreed to be entitled to hold and enjoy the same for life, and if necessary that a commission may issue for the purpose of assigning and setting out such dower. To this bill the defendant demurred for want of equity, and also for want of proper parties ; assigning for cause of demurrer 352 CASES IX CHANCERY, Hartshorne v. Hartshorn that it appeared by the said bill that a mortgage upon the said premises was given by the said Richard S. Hartshorne in his life time to Jacob Quackenbush, and by him assigned to John W. Holmes, which still remained unsatisfied ; and also that a part of the premises had been conveyed in fee to Daniel Baker ; yet neither the said Jacob Quackenbush, John W. Holmes, nor Daniel Baker are made parties. The cause came on for hearing upon the demurrer to the bill. P. Vredenburg, in support of the demurrer, insisted, 1. That Daniel Baker, a purchaser of part of the premises sold by the sheriff to William and Esek Hartshorne, and John "W. Holmes, the assignee of a mortgage executed by Richard S. Hartshorne, the husband of the complainant, before her mar- riage, are necessary parties to the bill. , 2. That chancery has no jurisdiction in matters of dower. 3. That the complainant, upon the case disclosed in the bill, ia not entitled to dower. The defendant is a mortgagee in pos- session, and entitled to hold the premises free of dower : Wood- hull v. Re&oes, 1 Harr. 128 ; 4 Kent's Com. 71 ; Harrison v. Eldredge, 2 Hoisted, 401 ; 2 Browrts Chan. 630. Wilson, for complainant, contra. No dower is claimed in that part of the premises conveyed to Baker : he is not, therefore, a proper party to the bill. Holmes, the mortgagee, is not affected in any way by a decree for dower, and is not, therefore, a proper party : 2 Maddoctts Chan. 184 ; 3 P. W. 310. Chancery has concurrent jurisdiction with the courts of com- mon law in cases of dower: 2 Sellon's Prac. 204; Rev. Laws, 399 ; 1 MaddocWs Chan. 242 ; 2 Vesey, jr. 127-8 ; 4 Kenfa Com,. 73; 4 John. Chan. R. 604; 5 Hid, 482; 7 Cranch, 371. The widow is entitled to dower in the equity of redemption, on paying one-third of the mortgage debt,or keeping down one-third OCTOBER TERM, L840. 353 Ilartshorne v. Hurtsborne. of the interest thereon : 2 Grecnleaf, 41 ; 5 Pickering, 146 ; 1 Conn. 559; 12 Serg. and It. 181; 1 Randolph, 344; 6 J. It. 290 ; 7 J. It. 281 ; 15 J. R. 319 ; 1 Swans. 478 ; 2 tf. on Mort. 300, 700; 3 Hid, 1089, rc. 1 ; (J Cowcn, 316 ; 14 Wend. 233 ; 1 Pa^?, 193 ; 1 John. Cltan. R. 45 ; 5 Hid, 452, 491 ; 1 Southard, 260 ; 2 7fo'd, 865 ; 2 e/0A/i. Cttan. 7?. 125. /. //. Williamson, for complainant. Tho complainant does not claim dower in the land owned by Baker. She cannot file the bill against the owners in severalty of all the lands in which she claims dower, but must proceed against, each owner separately. Baker is not a proper party to this bill ; . he has no interest that can be affected by it. Nor is Holmes a proper party. No decision in this suit can affect the mortjagee. This court has jurisdiction of the subject matter of the suit.. In cases of partition and dower, courts of law and equity have concurrent jurisdiction. Where a widow claims dower in an equity of redemption, there arc special reasons for coming into a court of equity. In England dower is strictly a legal right, and the widow is not entitled to dower in a trust estate, or in an equity of redemp- tion ; 1 Fonb. 20 ; 1 Blacks. R. 123. In nearly all the states of the American union, a widow is entitled to dower in an equity of redemption. Eyen in England at this day the court of chancery exercises concurrent jurisdic- tion with the courts of law in cases of dower: 2 Vesey,jr. 122 ;. MUfortfs Plead. 109, 110, 112; 1 Eland's Ch. Rep. 206 .;; 5 John Chan. R. 486 : 7 Cranch, 370, 376. And there is no necessity to allege in the bill of complaint any- special reason for coming into equity to recover dower: 4 Brown?*. Clian. Cos. 294. In the present case there are impediments in the way of pro ceeding at law, which render it necessary for the party to come into a court of equity. There is an outstanding mortgage, which in a court of law might have been set up to defeat the recovery of 46 354 CASES IK CHANCERY, Hartshorne v. Hartshorne. dower. The complainant, moreover, seeks important discoveries ; she could not proceed without the aid of a court of equity. Where the mortgagee has never entered into possession or foreclosed the equity of redemption, the widow has her dower : C J. It. 290 ; 7 Ibid, 273 ; 15 Ibid, 319 ; 4 Kent's Com. 42-34; 5 John. Chan. R. 452. In England an equity of redemption cannot be sold on execu- tion : in New-Jersey it may. By the act of the legislature (Rev. Laws, 431) the sheriff is required to sell all the lands whereof the defendant is seized. Under this statute the equity of redemption is constantly sold. The mortgagor, in New- Jer- sey, is seized of the equity of redemption. The wife joining in the mortgage is only as security for the debt, and the personal representatives may be called upon to pay off the debt and relieve the estate : Harrison v. Eldridge, 2 Jlalsted, 392 ; 1 Blond's R. 228 ; 2 Pow. on Nort. 678. The purchaser of the equity of redemption is bound to pay oil the incumbrances. It is a fraud on his part to attempt to set up the mortgage as a bar to the widow's dower : 2 South, 865. The equity of redemption is all that was sold by the sheriff, and all that the defendant acquired by the purchase : 10 J. R. 431 ; 2 IMsted, 392 ; 5 John. Chan, R. 452. If a man purchase the equity of redemption, a court of equity Trill raise an implied promise to pay the debts on the property : 1 Vesey, 337 ; 3 John. Chan. R. 259 ; 2 lUd, 125. lie is only liable to the extent of the land ; nothing more is pretended : 5 John. Chan. R. 481. The mortgage which the defendant took by assignment was Ills debt to pay, and became merged in his legal title. A court of equity will allow an incumbrance to be kept alive for an hon- est purpose ; but it will consider an incumbrance paid off or not, as will most advance the justice of the case : 1 Harrison, 128; 6 J. R. 395 ; 1 Cowen, 460, 478. Vredenburg, in reply, insisted that the defendant is a mort- gagee in possession, against whom the widow is not entitled to OCTOBER TERM, 1840. 355 Hartsliorne v. Hartshorn'?. dower. The fact of his having purchasad tho equity of re- demption, cannot affect his rights under the mortgage. The complainant can acquire no right by coming into equity, to which she was not entitled at law. THE CHANCELLOR. This is a bill for dower. The com- plainant alleges, that her husband was seized in fee of certain lands in the county of Monmouth, during their coverture, of which she claims to have set off one-third part for her dower. It is stated in the bill, that prior to the marriage, her husband gave a mortgage on the property whereof dower is claimed, for three thousand dollars, on which payments had been made reducing it to eleven hundred dollars, and that such mortgage has been assigned to the defendant. The defendant purchased the equity of redemption at sheriff's sale, and afterwards procured the as- signment of the aforesaid mortgage. The bill further states, that daring the marriage, the complainant and her husband also ex- ecuted a mortgage on the property for two thousand two hundred dollars, which has been reduced by payments to six hundred dol- lars, and is held by John W. Holmes. Other mortgages are set out in the bill, but as they are said to bo paid off anU discharged it is not material to state them here. To this bill there is a de- murrer for want of equity and for want of parties, which presents some questions important to be settled. In the first place, it is insisted that this court has no jurisdic- tion in dower, and that in New-Jersey the remedy is exclusively in the common law courts. Whatever difference of opinion on this subject might at one time have existed, I consider it settled at this day, that in relation to both dower and partition the courts of law and equity hold a concurrent jurisdiction. I had occasion recently to examine a case of partition, and became satisfied not only of the authority of this court over it, but of the indispensa- ble necessity for its exercise. There are cases, and tho one be- fore me was of that character, in which tho parties could nol have had tho proper relief at law. So in dower, in favor of the widow, it is indispensable in many cases for the sake of discove- 356 CASES DT CHAKCEHY, Hurtshorno v. Hartslaorne. ry by tlic oalli of the defendant as to the property, its nature, and the iucumbrances upon it, and sometimes for an account of the rents and profits, that the jurisdiction of this court should bo maintained. If the legal title be denied, it is always in the pow- er of the court to send that question to be tried at law, and such ia the universal practice. This subject has been much discussed, but it should now be considered as settled in favor of the jurisdic- tion, both in England and in this country : Mundy v. Mundy, 2 Vcsey, jr. 128 ; Curtis v. Curtis, 2 Brown's Oh. Cas. 623 ; 1 MaddocJJs Chan. 242 ; Swainev. JPcrrine, 5 Johns. Chan. 12. 488 ; Badqdy v. Bruce and Ilalsey, 4 Paige, 98. The defendant is a purchaser of the equity of redemption in the premises whereof dower is demanded, and has by assign- inent become the owner of a mortgage made by tho husband prior to his marriage with the complainant. On the one side, it ia insisted, that by tliis assignment the mortgage became merged or extinguished when it came into the defendant's hands ; and on tho other, that the defendant is a mortgagee in possession, and the complainant's rights thereby barred. A purchaser of the equity of redemption at a sheriffs sale, takes the property cum onere, and acquires no rights beyond what remain in the mort- gagor after satisfying the incumbranco out of the land. If, by any device or circuity, such purchaser should procure the payment of tho mortgage without a resort to the land, as by suit against the mortgagor or his representatives on the bond, manifest injus- tice would take place ; for ho would then have the property clear of tho very debt subject to which it wa& sold. By such a course; a purchaser, for a nominal sum, might become possessed of a valuable estate, and the mortgagor virtually twice discharge the game debt. This difficulty was presented to chancellor Kent and fully settled by him, ia tho case of Tice v. Anmn,ZJbhns.Ch. 125. Tho ralo ho established in that case was this: If a credi- tor other than the mortgagee sells tho equity of redemption by an execution at law, tho mortgage debt remains undisturbed, and the rights of the mortgagor over and above the mortgage in the property arc rightly disposed of to satisfy his creditors. OCTOBER TERM, 1840. 357 Hartshorne v. Hartshorne. This case presents no embarrassment. But suppose, after the equity of redemption is thus sold subject to the iucumbrance, the mortgagee should prosecute his bond at law, and undertake to sell other property than that contained in the mortgage. Then the chancellor held that a court of equity should either stay such proceedings, or compel the creditor, upon payment, to assign over his debt and security to the debtor, to enable liim to indem- nify himself out of the mortgaged premises. But in the case referred to, there existed a still greater difficulty. The mort- gagee sold the equity of redemption in the mortgaged premises for a part of the debt, and then put it out of his power to assign the securities to the mortgagor by actually assigning them over to the purchaser of the equity of redemption ; and to prevent gross injustice, the chancellor, as the only alternative, held the debt extinguished in the hands of the purchaser. All this pro- ceeds on the idea that the purchaser of the equity of redemption shall in no event hold the land discharged of the incumbrance, and if he attempt to make the debt by buying up the bond and mortgage and recovering the amount unjustly out of the obligor, the debt shall in his hands be considered extinguished. In a case eo circumstanced, this result seems unavoidable to prevent the grossest injustice and wrong. But I do not understand this case as going the length of saying, that a purchaser of the equity of redemption can be compelled, in all cases, to pay off the ante- cedent incumbrances farther than the land itself will discharge them. The purchaser placed himself in a peculiar position, and was attempting thereby to do a wrong ; and the chancellor, to avoid such wrong, held the debt canceled in his hands. There are cases, I am aware, which look like holding the purchaser liable for the debt personally, but I cannot think that such is the true doctrine. It is not necessary for me to decide this question here, but I desire to state my conviction, that the purchaser in liable to the extent of the land purchased, and no further, and that he will at all times be discharged upon releasing the land. There is no privity between the mortgagee and the purchaser, and I cannot see upon what principle he can be reached, except 358 CASES IN CHANCERY, Hartshorne v. Hartsliorue. ft be througli the land which he has purchased. I speak not now of a case where the purchaser enters into special obligation to pay antecedent incumbrances ; all such cases will be governed by the terms and character of the contract ; but of the ordinary purchaser without special agreement, depending on the obliga- tion which the law in such cases imposes. Indeed it is matter of doubt whether it is intended, from the cases, to go farther than the principle as I have stated it. The doctrine proceeds upon the idea that a court of equity, independent of any express con- tract, will raise upon the conscience of the purchaser an obliga- tion to indemnify the mortgagor against his liability on the mort- gage ; but to what extent ? Certainly not beyond the laud pur- chased. This subject will be found discussed in Waring v. Ward, 7 Vesey. jr. 337 ; Cumberland v. Coddington, 3 Johns. Cli. 261; Stevenson and Woodruffs. Black, Saxton, 342. It is every day's practice to sell the equity of redemption by an exe- cution at law, sometimes at the suit of the mortgagee and some- times of other creditors. If a purchaser could be called upon to discharge all the incumbrances on his personal liability, it would greatly embarass these sales, and effectually prevent their being made. But whether this view of the subject be correct or not, and recognizing the decision in 2 Johns. Chan, to which I have r^ ferred, in which the bond and mortgage assigned to the pur- chaser of the equity of redemption was held to be an extinguish- ment of the debt, still, as it affects the right of dower of tho widow in the lands, a new and very different question is pre- sented. It is agreed, that if tho husband before marriage, or in conjunction with his wife after marriage, (the deed being ac- knowledged by the wife, in due form of law,) execute a mort- gage, and it remains in the hands of the mortgagee, tho widow can only have her dower subject to such mortgage ; and when this defendant purchased the equity of redemption, he purchased with the widow's right discharged to that extent on the property. Had the mortgage remained as it then was, in the hands of tho mortgagee, the widow's dower would* have been subject to it, OCTOBER TERM, 1840. 359 Harlshorne v. Hartehorne. and why should it be otherwise now that it is transferred to tho purchaser ? Had a foreclosure and sale taken- place under tho mortgage, the widow would have been barred her rights, except as to the surplus beyond satisfying the mortgage. At her hus- band's death the true claim this widow had was to one-third of the land after the mortgages were satisfied, and nothing more. In the case in 5 Johns. Chan, before cited, it was held that the widow was bound to contribute her ratable proportion towards a mortgage which she had executed with her husband, and which the heir had been obliged to pay off, before allowing her dower in the land. The chancellor in that case says, " To allow her the dower in the land without contribution, would be to give her the same right that she would have been entitled to if there had been no mortgage, or as if she had not duly joined in it. It would bo to give her dower in the whole absolute interest and estate in the land, when she was entitled to dower only in a part of that interest and estate." But the case of Russell v. Austin, in 1 Paige, 193, will be found similar to the one we are now considering. That was a purchase of the equity of redemption at a sheriffs sale, and an assignment to the purchaser of a bond and mortgage made by the husband and wife. It was there argued, that the debt was extinguished and merged by the assignment ; but the court held the widow entitled to her dower in the equity of redemption only, subject to the mortgage. In that case, as in this, the intention of the purchaser not to extinguish the debt was manifest, for in- stead of canceling the securities he had them assigned to him. From every view, therefore, which I have been able to give this case, I cannot think this widow entitled to any thing more than her dower in the lands subject to the outstanding mort- gages, including the one assigned to the defendant. She is en- titled to her dower in the lauds in the possession of the defendant, (upon the case stated in the bill,) upon keeping down one-third of the interest on the amount due on the property. As to the parties, I do not see the necessity of bringing Mr. Holmes before the court. His claim can in no way bo affected 300 CASES IN CHANCERY, Hartshorne v Hartsborne. by any decision here. It is a question entirely between the com- plainant and defendant. The same rule would apply to any other mortgage, and with the more force, if the mortgage has been paid off though not canceled of record. As to Mr. Baker, who purchased a part of the lands, no dower is sought in this action of those lands, and he cannot, therefore, be a necessary or proper party. While, therefore, my opinion is with the defendant on the main question in the cause, yet, as his demurrer is to the whole bill, and the complainant is entitled to her dower in the equity of redemption, and as there is no defect of parties, the demurrer must be overruled with costs. Demurrer overruled. CITED in Thompson v. Boyd. 1 Zdb. 61 ; 64 ; Den. v. Brown, 2 Dutch, 204 ; Dancan v, Smith, 2 Vr. 329 ; Tichenor v. Dodd, 3 Gr. Ch. 457 ; BoUes v. Wade, Id. 400 ; Hinchman v. Stiles, 1 Stock, 363 ; Chiswell v. Morris, 1 McCar. 103 ; 104; Eldridge v. Eldridge, Id. 193 ; Pal- mer v. Carpenon, 2 C. E. Gr. 206 ; Piersonv. Hitchner, 10 C. E. Gr. 334 ; Crowell v. Hospital of St. Barnabas, 12 G. E. Gr. C55. EMA:STJEL COYKENBALL and MARTIN COYKENDALL v. MARY RUTHERFORD, Executrix, &c. of JOHN RUTHERFORD, de- ceased. Whera a testator by his will clevises all his real nnd personal estate to nine persons, named iu the will, in trust for tho purposes therein expressed, ami appoints the sumo persons by riamo executors, with full power to them and toam"jority cf them, and to a majority of the survivors of them, to sell hia Iand3 arid t:> execute deeds for all lands contracted to be sold by the testator in his life time ; if one of tho executors dies iii the life timo of fio testa or. anil all tho others except one refuse to act, the acting executor is authorized under the statutes of New-Jersey to convey the laud. Tins bill was filed hy the complainants to compel the specific performance of a contract entered into by John Rutherford, in liia life time, with the complainants, for the conveyance of a tract of land situate in the comity of Sussex. Tho answer of tho defendant admits all the material facts charged in the bill of complaint, but states that doubts have been suggested by her OCTOBER TERM, 1840. 361 Covkendall v. Rutherford. counsel whether the testator intended, by the power given to his executors in his will, that deeds should be made by any one of his executors who might prove the same ; and also, whether the 'defendant, under the statutes of the state of New-Jersey, is law- fully authorized by the will to execute the conveyance, as prayed for by the complainants. The defendant insists that the com- plainants ought not to require her to execute such conveyance without the decree and direction of this court, and submits to act in the matter under the direction, protection and indemnity of the court. The cause was heard upon the bill and answer. ! D. Thompson, for complainant. 7?. Vanarsdale, for defendant, TUB CHANCELLOR. The only question presented by the bill and answer is, whether Mary Rutherford, the defendant, has the power by the will of John Rutherford, to convey the lands in question. The will bears date the 8th of May, 1833. By it he devises all his real and personal estate to nine persons therein named, in trust, for the purposes therein expressed. lie then appoints the same persons, by name, executors, with full power to them, and to a majority of them, and to a majority of the survivors of them, to sell his lands, and to execute deeds for all lands contracted to be sold by the testator in his life time. There are several codicils to the will, which make no alteration finally as to the executors, except the addition of two more, Archibald Russell and his wife, to the number already named. The facts are so stated in the answer, though it would seem from a copy of the will and codicils accompanying the papers, that the testa- tor revoked the appointment of Robert "Walter Rutherford, one of the executors originally named, by the last codicil, made tho 2d of December, 1839 ; but this cannot vary the question now to be settled. One of the executors, Mary Rutherford Jay, died before the testator, and the rest have neglected to prove the will 47 362 CASES IN CHANCERY, Coykendall v. Rutherford. except the defendant, Mary Rutherford, who has in due form of law proved the will and taken upon herself the execution thereof. At the common law, there can be no doubt, all the executors named must join in the deed ; but the statutes of New- Jersey have altered the common law in that respect, and provided, as I think, for the case here stated, so as to enable the executrix who has proved the will to execute the deed alone. By the act of 1795 it is provided, that where lands shall be devised by will to executors to be sold, or shall be ordered to be sold by executors, and after the testator's death part of such executors refuse or neglect to act, then all bargains and sales of the lands so ordered to be sold, made by such of the executors as shall accept and prove the will, shall be as good and effectual in the law as if all those named in the will as executors had joined in the bargain and sale. By the act of 1815 it is provided, that if by will power shall be given to two or more executors to sell the testa- tor's real estate, and one or more of the executors so named shall refuse to prove the will or die, then, unless it is otherwise ex- pressed in the will, the trust shall vest in the acting executors or the survivor or survivors, who may execute the trust alone. And by the act of 1817 it is provided, that where lands aro de- vised by will to executors to bo sold, or shall bo ordered to be sold by executors, and one or more of them shall die before the testator, and the surviving executors or any of them shall accept the appointment, then all bargains and sales of lands so willed to be sold, made by the executor so accepting, shall bo as good and effectual in the law as if all the executors named in the will had joined in the sale. The act of 1817 provides clearly for the case of the cxecuto* who died before the testator; and the acts of 1795 and 1815 provide for the case of executors neglecting or refusing to provo the will. A doubt has been expressed whether the language of the will docs not show an intent on the part of the testator against allow- ing one executor alone to execute tho trust. I cannot think such OCTOBER TERM, 1840. 3C3 Coykendall v. Rutherford. was his intention, or he would in express terms liave so declared In. fact, the language used would rather imply a determination that there should in no event be a failure in executing the trust. He probably never contemplated that any would decline to act. I consider the power to sell confided to the executors as execu- tors, and not personally. They arc the same persons, it is true, as by the original will are appointed trustees for the estate ; but they are by name also appointed executors, and in that charac- ter directed to sell lands, and particularly to f ulfil the contracts which the testator had entered into. As, therefore, my opinion is that the defendant may legally convey the lands in question, according to the laws of this state, and as by the answer no other obstacle is interposed, but on the contrary the whole case is admitted, the complainants will bo entitled to a decree forthe performance of their contract, and that the defendant execute a deed for the lands accordingly. The costs of both parties to be paid out of the estate of the testator. Decree accordingly. BETSEY Ross v. ZOPILAE HATFIELD and others. The fourth section of the act, cnti lei, "An act to prevent in certain cases tho abatement of Knits a id reversal of judgments," (Rev. Law-; 164,1 a in- tended to apply to cases where 6;/y the death of such de- ceased party, the suit may proceed, being revived against the representatives of the deceased party ; clearly referring to tho case of heirs, executors, or administrators. In such a case, no- thing but the death is to be ascertained. The law fixes who is 306 CASES IN CHANCERY, Ro?s v. Hatfield, et al. the heir or representative, and they cannot deny it. A bill of revivor, therefore, is alone necessary. But if any conveyance has been made, or devise, so that the title as well as the person entitled may be litigated, then it must be set out in a supple- mental bill. The revised statutes of the state of New- York have the same provisions in substance on this subject as ours, and have received the same construction which I have given them : Douglass v. Sherman, 2 Paige's Ch. Rep. 358. These provisions are held to apply only to those cases where by former practice proceedings could be revived and continued by a simple bill of revivor. I refer also, on this subject, to the cases of Lecjgett, v. Dubois, 2 PaiyJs Ch. Rep. 212, and to Wilkinson v. Parish, 3 Ibid, 653. In this case, in my opinion, there must be a supplemental bill filed, before a proper decree can be made against the defendants, cr either of them. And as this is a matter of practice on which there may have been, and indeed from the order obtained it seems there was a different opinion entertained, I shall allow a supplemental bill and bill of revivor to be filed now, on pay- ment of the costs of the hearing. Something was said on the argument that the heirs at law were necessary parties to a supplemental bill in this case, but that question is not now before me, and I must leave it to the complainant to make such parties to her bill as she may be ad- vised are necessary and proper. CITEP is Marlatt v. Warwick & Smith, 4 C. E. Gr. 445. ASA TORRE Y v. ROBERT BUCK and others. A.-I application to the court to compel the specific performtmco of a contract rests in sound discretion, and tho contract will be enforced or not, as shall appear most a ;reeablo to justice and equity. Wbcro, on a contract for tho purchase of real estate between A. and B. , tho deed is made to C. at the request of B. ; on a bill to Bet aside the deed foi OCTOBER TEEM, 1840. 307 Torre v v. Duck et al. fraud, C. will not stnnd in any other or better situation than B. the pur- chaser would h;ive done had the title been made directly to him. The substitution of the name of a third person in the deed in tho p'.ace of the purchaser, and at his instunce, will not place the grantee in the situation of a b asked for an order, directing the master (in whose hands the money was deposited by consent) to pay over the surplus mo- ney to the petitioner, in case it should appear that he was enti- tled to receive it, without the further order of the court. Tun. CHANCELLOR. It is necessary that the master should report to this court, in order that all parties interested may have an opportunity to file exceptions. The final action of this court must be had in the premises, before the money can be paid over Let the order of reference be made in the usual form. Order accordingly. CASEb THE COURT OF CHANCERY OF THE STATE OF tfEW-JEKSEY. APRIL TERM, 1841. ABRAHAM J. BEEKY v. The EXECUTORS OF ISAAC J. VAN "WmKLE, deceased. Where by the terms of a lease it was agreed that the lessee should malco im- provements on the demised premises, at his own costs and charges, and that at the expiration of the term all the improvements BO made should l>o- and remain tho property of the lessor, ha paying to the lessee the valvn thereof (he* improvements are to be valned as they were at the time the lease expired. If tho lessor covenant that the Jessee may, at any time during the term , erect a carding end fulling mill, and any other machinery, npon tho demised premises, and that at the ezpuation of the term all improvements made up- 011 the lot shall bo the property of the lessor, ho paying for the same; tho improvements to be paid for by the landlord are such only as he had pre- viously authorized to be made. THE bill in this cause was filed to compel the specific perform- ance of a covenant contained in a lease, that at the expiration of the term, the improvements made on the demised premises by the lessee, should remain the property of the lessor, he paying the lessee the valne thereof, or satMying him for such improve- APRIL TERM, 1841. 391 Berry v. Ei'rs of Vim V\ inkle. ments.* The cause was heard upon the pleadings and proof a, and at October term, 1839, a reference to a master was ordered, to ascertain the value of the improvements at the termination of the lease, and the amount due the defendants for rent. The master having made his report, exceptions were filed by both parties, and the cause came on for hearing at April term, 1841, upon the exceptions to the report. A. 0. Zdbridde, for complainant. J. Speer, for defendants. Cases cited by defendants' counsel. 2 Kenfa Com. 280 ; Hilliard's AMdg\ 12 ; 9 East. 245, n. ; 4 Cond. Eng. Chan. 7?. 428, 499. THE CHANCELLOR. "When this cause was heard on the pleadings and proofs, the relief sought by the complainant in this court was denied, except compensation for improvements placed on the property during the lease. A reference was directed to a master, to ascertain the value of such improvements as were made within the scope and meaning of the covenants in tho lease, and also the amount of rent due the defendants. Tho master has made his report on these subjects, to which excep- tions have been filed by both parties, and I am now to settlo those exceptions. There arc two important questions on which the parties differ widely, and they run through the whole case. If these are sat- isfactorily settled, it will be seen that much of the difficulty in the cause will be at an end. The first of these relates to tJie time at which tho valuation of the improvements should be made. Upon this subject I am confirmed in the opinion heretofore expressed, that they must bo valued as they were at the time the lease expired. This was a point on which the counsel for the defendants desired an opportu- For the nature of the bill and answer, see ante, page 269. 392 CASES IN CHANCERY, Berry v. Ex'rs of Van Winkle. nity to be further heard ; and I remember well to have assented that he might have the order so drawn as to require the master to report the state of the improvements, as well as the date of the order, as at the expiration of the lease ; and on the final hearing I would adopt the one or the other, as might seem to be proper. Through inadvertence the order was not so modified, but followed the opinion as delivered. I have, nevertheless, thought it my dnty to review that question, and, as I still tliink I can estimate the improvements only as they were at the end of the loase, there exists no necessity for any change in the order as it stands. The lease expired on the 7th of March, 1835, and this bill was filed on the 23d of the same month, a few days afterwards. Tho relief sought, was for compensation for certain improvements placed by the tenant on the premises, which the landlord cove- nanted to pay for. Had not the complainant been entitled to such compensation at the time of filing his bill, ho must havo failed in his suit altogether ; but the court decided otherwise, and there is no propriety in referring the time for fixing this valua- tion to any later period. The lease contemplates a settlement of this whole question at its expiration : then it is that the build- ings are to be examined, and a final adjustment made. Every thing looks to that time. The subsequent controversies between the parties, or any suits they may have brought, cannot vary their legal or equitable rights under the lease. Nor can it be Baid that the order made by a former chancellor, staying proceed- ings in an ejectment brought by the landlord, kept him out of possession after the lease expired. That ejectment was brought to recover the possession before the lease expired, for non-payment of rent, under a clause in the lease ; but he was at liberty after it expired, if any real difficulty existed about the possession, to bring a new action. He never did so, and it would seem quite as probable from the case, that neither party at that time want- ed the possession. However that may be, no new suit was brought. Tho remedies, in case the tenant unlawfully holds over, are ample, and some of them penal in their character. In every view, then, it appears to me that we must value the iin- APRIL TERM, 1841. 393 Berry v. Ex'rs of Van Winkle. ]>rovemcnts as they were when the lease expired, and interest upon the amount must bo carried forward to the date of the mas- ter's report. Another and a still more important consideration, is, to ascer- tain and Bcttlo what are the improvements the defendants are bound to pay for under the lease. The true construction of the writing in this respect is now for the first time presented, though it may be considered the most important question in the cause. It was not made a point on the hearing for instructions to the master in settling the reference, and it is probable at that time the difficulties which have since arisen as to its true meaning T7crc not anticipated. I confess there arc difficulties in its con- struction, and it is no way strange that the master should have felt himself under some embarrassment. The lessor, Mr. Van TTiulilc, (a fanner, I think,) was the owner of a water-power with lands adjoining, and leased them for the term of twenty-one years. At the time, there was an old saw-mill on the premises. The rent reserved was only forty dollars a year. In the lease he makes this covenant : That the lessee and his assigns might, at any time during the demise, at his or their own proper cost, erect " a carding and fulling mill or any other machinery y" and that, at the expiration of the demise, all improvements made upon tlie lot should be the property of the lessor, he paying for the same. The tenant went into possession, erected buildings, put machinery into them, and among the rest built a saw-mill with its appendages. It is clear that the landlord, although he agrees to pay for all improvements placed upon the lot, had refer- ence only to such as he had previously authorized to be made. The tenant had no power to place there what he pleased, and then ask compensation for them. This could never have been the intention of the parties, or they would not have previously specified the buildings the tenant might erect. The words " .ill improvements," which the landlord agreed to pay for, has refer- ence to all such only as by the previous parts of the lease it had been agreed might be placed on the lot. That license extended only to " a carding and fulling mill or any other machinery." 51 394 CASES IN CHANCERY, Berry v. Ex'rs of Van Winkle. As to the buildings, there is no great difficulty. They consist of little else than one carding and fulling mill with their appenda- ges, and the caw-mill. This saw-mill was originally built as a cover to the wheel, and afterwards machinery was placed in it for sawing lumber. The machinery creates the great difficulty. The complainant insists that the lessor was bound to pay for all the machinery there, whether part and parcel of the building or loose and separated from it. And there is some evidence of a portion of the machinery having been carried away, and just before the expiration of the lease brought back and piled up, and this is claimed under the lease. I cannot place such a con- struction on this instrument. The machinery contemplated could have been nothing beyond such as is permanent and essential to the building itself as a carding or fulling mill, with liberty to change it if it became necessary. It was no doubt seen, that it might be desirable to change the course of business, and if so, they had a right to adapt it accordingly, and then the landlord was to pay for the machinery thus substituted. The buildings as erected, may therefore be properly valued, with their perma- nent fixtures, but nothing that is moveable. I know it is diffi- cult to arrive at certainty as to the right limit in ascertaining what is permanent and what not, but that arises from the char- acter of the covenants. It was at best a hard bargain on the part of the landlord, but to declare him liable for any thing and every thing which may be termed machinery, might bring on him utter ruin. I know but one method, and that is, to consider the different items in the master's report, and from the evidence in the cause and the agreement, make such allowance as shall seem to be most agreeable to justice: and I am fully aware that in so doing we cannot arrive at as much certainty as we could desire. The first item in Schedule A. No. 1, is for the wood-work of the buildings, five hundred dollars. This item I shall not dis- turb. Though impressed that it is a liberal allowance, yet it is warranted by the evidence, and the buildings are a fair subject of charge. The second item is for mill-wright work and gear APE1L TERM, 1841. 395 Berry T. Ex'ra of Van Winkle. ing, three hundred dollars. This item should bo reduced, find I shall, from considering the evidence, place it at two hundred dollars. There can be nothing more uncertain than estimating mill-wright work by the lump. The third item, for screws and box, &c. seventy-four dollars and sixty-three cent?. T reject alto- gether. The fourth item, of one hundred and forty-three dol- lars and forty-two cents, is reduced to one hundred dollars. The fifth item, of fifty dollars and seventy-two cents, is disallowed ; and the sixth item, of two hundred dollars, is reduced to one hundred dollars. Tliis last item, of two hundred dollars, for etonc wall, j. 65, (1st Am. ed.); Rcadv. Consequa, 4 Wash. C. C. R p. 177. Affidavits cannot bo read in support of the answer on a motion to dis- solve, nor, of course, can ihcy 62 substituted for an answ:r. An affidavit of the defendant would rob tho plaintiff of tho benefit of exceptions: 1 Hoffman's Clian. Pr. 361. Nor will an injunction bo dissolved on tho affidavit of one who is not a party: Cliristmas v. Campbell, 1 Ilayw. 123; Thompson v. Allen, 2 Hayw. 151. The rtilo is thus stated by chancellor Williarr.son, in the cnse of Dallas and Carroll v. Jeffers: When on injunction is granted, and a motion made to disso'.va it, tho defendant must rely npo i tho facts stated in the bill, and cannot bring iu affidavits to contradict tho bil 1 , or toprovo that the plain- tiff has by assignment divested 1 imself of h s i terest; ho must come in and answer: llals'.ed's Dig. 212. T. o rule proceeds upon tho ground, that the court will not dispen o with tho answer, to which tho complainant is entitled j from the defendant: Read v. Consequa, 4 Wash C. C. Rep. 179; unless the complainant waives bis right to an answer, when it is competent for tho de- fendant to move to dissolve the injunction upon the merits disclosed by affida- vit; A lor nev- General v. Nic'iol 16 Ves. 310; Vlpin v. Morllock, 2 Meriv. 4.79. No judicial construction lias been given to the late rule of court above cited, (Rules, ix. s. 2.) It is presumed, however, that it will be held to apply only to cases similar to the case reported in the text, where tho defendant seeks by affidavit to contradict the charges in the bill, or to establish bis claim to a dissolution of the injunction. APEIL TERM, 1841. Woodhull v. Neafio et al. ciency with the costs of the second sale ; that the purchaser did fail to comply with the conditions, yet the sheriff, although re- quested by the complainant to resell the property, in compliance with the conditions of the first sale, refused so to do, but after- wards deli vered a deed to the purchaser. The bill further states, that an action of ejectment had been commenced by the pur- chaser for the recovery of the premises ; and prays that an in- junction may issue to restrain further proceedings in said action ; that the sheriffs sale may be set aside, the deed to the purchaser delivered up and cancelled, and a new sale ordered. An injunc- tion issued, pursuant to the prayer of the bill. !N"o answer was filed by the defendants, but affidavits were taken on the part of the defendants to disprove the charges con- tained in the bill. The cause was brought to hearing on motion to dissolve the injunction upon the bill and affidavits taken on the part of the defendants. The only questions involved in the chancellor's decision, were, 1. Whether a motion to dissolve the injunction would be en- tertained before answer filed. 2. "Whether the sheriff was bound by the conditions of hia sale, upon a failure on the part of the purchaser to comply with the conditions, to resell the property on the request of the de- fendant in execution. THE CHANCELLOR dissolved the injunction, holding that the injunction might be dissolved without answer ; and that it was optional with the sheriff, after the failure of the purchuser to cemply with the conditions of sale, either to make a resale of tho property, or to execute the first sale. Injunction dissolved. CITED in Shann v. Jones, 4 C. E. Gr. 254. < '. . f *>.-., . 4:12 CASES m CHANCERY, HALMAon I. VAN "WAGGONEB v. JOSEPH MoEwEN and others. Where a mortgage is given to secure the purchase money of land, an alleg->- tion of an outstanding title against the land purchased, is no objection to a decree of foreclosure, aliter, if the purchaser is evicted or an ejectment actually commenced against him. BILL for the foreclosure of a mortgage, given by Joseph McEwen and wife to the'complainant, to secure the payment of a bond for eleven hundred dollars. The defendant, Joseph JkfcEwen, by his answer, admits the bond and mortgage as set out in the complainant's bill ; but states that they were given to secure the payment of part of the purchase money of the mort- gaged premises, consisting of a lot of land in the township of Bergen, conveyed by the complainant to the defendant, McEwen, by deed dated the twenty-eighth day of August, eighteen hun- dred and thirty-five. That the said lot was conveyed to the complainant by one Aaron Tuers, and that the complainant sold and conveyed to the defendant about thirty-three hundredth:* of an acre of land more than was conveyed to him by Tuers. That at the time of the conveyance of the lot to the complainant, it was enclosed by fences which were understood to be line fences, and to designate the lines of the lot. That before the convey- ance to the defendant by the complainant, the complainant re- moved the fence on the north-east side of the said lot, and about twenty feet, enclosing part of an adjoining wood lot. That about fifteen feet of the rear of the lot is claimed by the heirs of Aaron Tuers, as not included or intended to be conveyed in the deed from Tuers to the complainant. That the lot was pur- chased by the defendant for the purpose of erecting thereon a cotton factory and dyeing establishment, and believing that lie had a lawful title to the said lot, as described in the boundaries in the said deed of conveyance, and as the fences stood at the time of the conveyance, the defendant proceeded to erect on the APRIL TERM, 1841. 413 i Van Waggoner v. SIcEwen et al. premises, at an expense of four thousand dollars, a dwelling, house, cotton factory and dye-house, and to sink a -well. That the land now claimed by the heirs of Aaron Tuers, and to which the defendant believes they have a valid title, will, if recovered, deprive defendant of his well and nearly one-half of the factory ; lliat in addition to the loss of the land, the defendant will bo subjected to great loss by the necessity of removal, and the in- terruption of his business. The answer insists, that no decree of foreclosure should be made, until the complainant procure and convey to the defendant a valid title for that part of the lot claimed by the heirs of Aaron Tuers ; or, that such sum should bo deducted from the amount due upon said mortgage, as will bo sufficient to complete the title, or to indemnify the complain- ant against all loss and damages incurred by the failure of titlo to a part of the premises. The cause came on for final hearing upon the pleadings and proofs. J. D. ,MilUr, for complainant. L. D. Hardenbergh, for defendants. THE CHANCELLOR. The defense set up cannot avail the defendant in this action. Here is no eviction or disturbance of the defendant, or even ejectment brought, and there never may be. If a suit was pending to try the title, or the defendant had been dispossessed, there would be propriety in resisting the fore- closure of the mortgage. This distinction is recognized in the case of Johnson v. Gere, 2 John Chan. P.. 547, and in Shan- non v. MarscUs and others, Saxon, 426. Should the heir of Tuers, hereafter dispossess the defendant, he must resort to his action on the covenants in his deed. This court wil undertake to settle the question of title between the defendant and the heirs of Tuers. The heirs arc not even parties liere, and without first settling that question the defence ect up is of 414 CASES IN CHANCERY, Van Waggoner v. McEwen et al. no avail whatever. The whole case made is nothing more than an allegation of an outstanding title. There must be a reference to a master to ascertain the amount- due on complainant's mortgage. Order accordingly. CITED in Jaques v. Esler, 3 Gr. C%.463; Glenn's Ad. v. Whipple, 1 60; Hill v. Eavison, 5 C. E. Gr. <23&\Hulfi*h v. O^Brien^ Id. 230; Price's Ex. v. Lavatory 12 0. E, Gr. 827. .. ______ :. *iC i^- - ...... CASES ADJUDGED nt THE COUBT OF CHANCERY OF THE STATE OF NEW-JERSEY. JULY TERM, 1841. WILLIAM C. MULFORD and JOSEPH LODGE, junior, two of the Administrators of SAMUEL DAEE, deceased, v. BENJAMIN ALLEN, Surviving Executor of BENJAMIN ALLEN, deceased, and MARY A. DARE. The cboses in action of the wife, whether acquired before or daring the co- verture, not reduced into possession by the husband, survive to the wife. If the husband, before marriage, make a settlement on his wife in considera- tion of her fortune, he will be considered in equity as the purchaser of her fortune, and her choses in action, though not reduced into possession by her husband, will go to his representatives.* THE bill was originally filed in the name of all the adminis- trators of Samuel Dare, deceased, of whom Mary A. Dare, his Accord. Blois v. Hertford, 2 Frnion, 501; Ld. Carteret v. Paschal 3 P. W. 199, note D. But according to the modern cases it ia established that the set- tlement, to be the purchase of the wife's fortune, must either express it to be for that consideration, or the contents of the settlement altogether must im- port that, and plainly import it as much as if it were i xpressed. Per Ld. El- don in Drttce v. Denison, 6 Vesey, 395. See also Carry. Tavlor, \Vtsey t 674; Mil ford v. Mitford,^ Vesty, 87; Beretford v. Hobson, 1 Mad Jock' t J?rf> 199; Blois v. Hertford, 2 Vtrnon 503, note 4; 1 Rtfer on Hush, and Wife, 289, ft sty. 416 CASES IN CHANCERY, Adm'rs of Dare v. Ex'rs of Allen. widow, was one ; but at January term, 1840, the name of Mary A. Dare, who claimed adversely to the complainants, was ordered to be stricken out of the bill as complainant, and she was made a defendant.* The bill states that Benjamin Allen, by his will, dated the 1st of December, 1823, after making provisions for his wife, &c., bequeathed the residue of his estate to be divided equally among his children, and died on or about January 1st 1824. That Benjamin Allen and William Allen, the executors named in said will, duly proved the same, and that "William hath died, leaving Benjamin surviving. That the said Benja- min Allen settled his accounts as surviving executor of the said Benjamin Allen, deceased, in the surrogate's office of the county of Gloucester, exhibiting a nett balance of eighteen thousand four hundred and forty-seven dollars and forty cents in his hands, to be disposed of agreeably to the will of the said testator. That Mary A. Dare, one of the daughters of the said testator, was, at the date of his will and at the time of his death, the wife of Samuel Dare, late of the county of Salem, deceased. That the said Samuel Dare died on or about the 15th day of February, 1 838, intestate, leaving a large real and personal estate, and leaving the said Mary A. Dare his widow. The administration upon his estate was in due form of law granted, by the surrogate of the county of Salem, to the complainants and the said Mary A. Dare. That the said Samuel Dare died seized of a large real and personal estate ; and that the said Mary A. Dare has de- manded and received her dower in the real estate, and will be entitled to one-third of the surplus of the personal estate, amount, ing by estimation to four thousand dollars. That the said Sam- uel Dare was entitled, as the husband of the said Mary A. Dare, under the will of her father, Benjamin Allen, to the sum of t\vclve hundred and twenty-nine dollars and fifty-five cents, only a small portion of which was paid to the said Samuel Dare in hia life time. That the surviving executor of the said Benjamin Allen repeatedly promised to pay the said legacy, and actually paid to the said Samuel Dare, or to his wife Mary for him and * See ante, page 288. JULY TERM, 1841. 417 Adm'rs of Dare v. Ex'ra of Alien. to his use, interest upon the said legacy. That the complainants have applied to him for payment thereof, and that he refuses to pay the eamc. Prayer that the defendants may account, and pay over the legacy, with interest, to the complainants. . The answer of the defendants admits the will of Benjamin Allen, the death of the testator, the probate of his will, tho mar- riage of his daughter Mary to Samuel Dare, the death of Sam- uel Dare, and the right of his widow, Mary A. Dare, to a por- tion of his estate, as set forth in the bill of complaint. And Mary A. Dare, answering for herself, saith, that at tho death of her father, Benjamin Allen, her husband, Samuel Dare, was a man of large estate, and carrying on a prosperous business ; that he informed this defendant that he had no need of the said lega- cy bequeathed to her by her father, that ho would not accept or receive it, or exercise any right or control over it, but that it might remain in the hands of her brother, the surviving execu- tor of her father, for her solo and separate use and benefit, and that the interest accruing thereon might be received by her alono and be appropriated by her to such uses and purposes as sho alone might see proper. That she received from the said exec- utor sundry goods and chattels and payments on account of tho said legacy, and also the interest on the balance thereof, up to the year 1837. That the said interest was so received by this defendant with the knowledge and approbation of her husband, the said Samuel Dare ; that no part of it was paid over to him, but the whole of it was appropriated to such uses and purposes as she saw proper, without any control, direction or authority exercised or attempted to be exercised in relation thereto by tho said Samuel Dare. The defendant, Benjamin Allen, surviving executor as aforesaid, answering for himself, saith, that he mado certain payments on account of the said legacy to the said Mary A. Dare. That a settlement was made with her on the 2Sth of Ocjo- ber, 1828, at which time there remained in his hands a balance of one thousand dollars, upon which she was entitled to interest, and which was paid to her from that time until the 2Sth of Oc- tober, 1837; and that the interest from that time, with the prin- 418 CASES IN CHAKCEKY, Adm'rs of Dare v. Ex'rs of Allen. 'cipal of the legacy, still remains due. That the said Samuel Dare in his life time, as defendant was informed and as he believes, al- ways declined receiving, or having anything to do with the said legacy ; that he left it in the hands of this defendant, for the sole and separate use of the said Mary A. Dare ; and that the interest to accrue thereon, was in like manner to be received by her, and appropriated in such manner, and to such uses and purposes, as she might deem proper, without any control or direction from the aid Samuel Dare. That the several sums of money paid by .this defendant to the said Mary A. Dare, were paid to and for her sole and separate use ; and he utterly denies that he ever paid to the said Samuel Dare, in his life time, any part or por- tion of the said legacy, or of the interest thereon, or that the said Samuel Dare ever demanded the said legacy, or the interest thereon, or that this defendant ever promised to pay him the same. Insists that the said legacy, not having been collected or reduced into possession by the said Samuel Dare in his life time, survives to the said Mary A. Dare. The cause came on for hearing upon the bill and answer ; no replication having been filed, nor any evidence taken by either party. Jcffera, for complainants. MaccuUoch and I. JI. Williamson, for defendants. Cases cited for the defendants : Elmer's Dig. 58, s. 32 ; 1 Roper on JIusb. and Wife, 201, 204, 209 ; Blount v. Bestland, 5 Vesey, 615 ; Wildman v. Wildman, 9 Vesey, 174 ; Nash v. ffash, 3 Maddoctts Rep. 133, 411 ; 3 Levinz, 403 ; 2 Maule and Sd. 393 ; 2 Kent's Com. 136 ; Schuyler v. Hoyle. 5 Johns. Chan. R. 196. THE CHANCELLOR. This case is brought to a hearing on till and answer ; and upon the ordinary rule of the court, as well as by the statute in this state,the answer is to be taken as true. This leaves us in no doubt as to the facts of the case, for they JULY TERM, 1841. Adm'rs of Dar v. Ex'rs of Allen. ore stated by the defendants in a very plain and explicit manner Tl ic bill charges, that Benjamin Allen, by his will, bequeathed to his daughter Mary, one of the defendants, and who was at the time married to Samuel Dare, a considerable legacy, and the amount of which legacy is now claimed by the representa- tives of that husband as belonging to his estate. The bill does not allege that any change ever took place in the life time of the husband in the character of the demand, by giving new securi- ties, or entering into any fresh obligations, but proceeds upon the fact that the executors of Benjamin Allen had paid the husband u part of the money, and repeatedly promised to pay him the residue ; and that, as the legacy accrued to the wife during her coverture, her husband became entitled to it in his own right, without reducing it into possession. The answer is joint and eeveral, by Benjamin Allen, the surviving executor of the tes'.a- tor, and Mary A. Dare, the widow, and it places the facts in & very different light from the complainants' bill. After admitting the legacy bequeathed to Mrs. Dare, and the amount still due on that account in the hands of the executor of Benjamin Allen, Mary A. Dare, the widow, answering for herself, says, that her husband, being a man of large estate and in prosperous business, told her that he had no need of the legacy given her by her fa- ther's will, and that he would not accept or receive it, but i: might remain in the hands of her brother, the executor of hir father, for her sole and separate use ; and that she accordingly let the money remain in the executor's hand?, and receive 1 for Jier own use the interest on it from year to year, with her has- band's knowledge and consent, and always appropriated it to such uses as she pleased, without being controlled by her hu band. And the surviving executor, answering for himself, says that the principal of the legacy still remain:* in his hands ; tjat .he paid the interest annually to Mary A. Dare during her hus- band's life time, down to the year 1837, from which time the .n- tLTcst remains unpaid. That he was informed that Samuel Dar ; declined having anything to do with the legacy. IIo deniee that he paid to Samuel Dare in his life time any portion of CASES IN CHANCERY, Adm'rs of Dare v. Ex'rs of Allen. the said legacy, or ever promised so to do, or that the said Sam- uel Dare demanded it, or any part of it, from him ; and he fur- ther denies that there ever was any conversation between him and Samuel Dare respecting the said legacy. Taking this answer to be true, all pretence of any act on the part of the husband towards obtaining possession of the debt, is done away. So far from being paid a part and promised the residue, it does not appear that one word ever passed between him and the executor respecting it. I suppose, to a man in lu's circumstances, the bequest to his wife, which amounted to twelve or thirteen hundred dollars only, was a matter of no moment ; or, as I am more willing to believe, he might have felt a just pride not to interfere with his wife's patrimony. The case is brought, then, to the single question, whether there was any necessity for the husband to reduce this debt into possession during his life, to enable his representatives after his decease to claim it ? No principle is better settled, than that the choses in action of the wife, not reduced into possession by the husband, survive to her. Embarrassment sometimes arises from not distinguishing between the different kinds of personal proper- ty to which a wife may become entitled. Personal chattels, such as household goods and things moveable, vest in the husband absolutely at the marriage, without the intervention of any court or any act on his part to establish his claim to it. But to her choses in action, such as debts due her by note, or bond, or lega- cy, &c., he has only a qualified interest, and if he fail during hie life to assert and maintain that right, by reducing them into pos- session, if the husband die first, they belong to the wife by sur- vivorship. Nor is there any difference in this principle whether the choses in action belong to the wife at the time of the mar- riage, or accrue during coverture. A distinctic^r-jf this kind has, I find, been etated by counsel in arguments and in some elemen- tary treatises, but the adjudged cases make no difference, and in several of the most important cases the property actually came to the wife during the marriage. The only difference is in the proper parties to a suit for recovering these demands in the life JULY TLULE, 1811. 421 Atlca'n of Daro v. Ex'rs of Allen. time of the husband ; for those rights accruing to the wife before marriage, it -^Guld seem proper that the wife should be joined in tlit cuit v/ith her husband ; but in those accruing during raar- r.agc, she may or may not bo joined, at pleasure. The case of Elount v. Jfestland, cited from 5 Vesey, 515, is one of a legacy made to a married woman. The only question made was, whether under the circumstances the acts of the husband might not be considered as snfficient to perfect liis right in the property, Vat it was adjudged otherwise, and the widow was held to be entitled. So also in the case of Wildman v. Wildman, 9 Ve~ sey, 174, the right accrued during coverture, and the question vr^s, whether the husband had consummated his claim in his life time ; and the court, being of opinion that he had done no act reducing it into possession, decided in favor of the widow. In Schuyler v. Hoyle and wife, 5 John. Chan. J?. 19G, this whole subject is carefully examined, and the cases reviewed. The principle here asserted is fully sustained, and it is shown that it makes no difference whether the wife's interest vests before or after coverture. See also 2 Maddoctts Rep. 133, 2 Maule and . S93, 9 Vcsey, 87. can the complainants derive any advantage from the ad- mitted fact, that Mary A. Dare has received dower in the lands of her husband, and will receive a very handsome share of his personal estate. No suc^i considerations can at all vary her rights in the property in dispute here. Had this husband, before marriage, made a settlement on his wife in consideration of her fortune, he would be considered in equity as the purchaser of her fortune, and her choses in action would have belonged to her husband's representatives without being reduced into possession ; but this rule has no application to property wliich a wife may derive from her husband at his death. As, therefore, Samuel Dare in his life time took no steps to reduce into possession the property in dispute here, it snrvi vcd to his widow, Mary A. Dare, r.nd the complainants have failed to make out a case entitling them to a decree of the court in their favor. The bill must be dismissed, with costs. 422 CASES IN CHANCERY, JOHN Ross and others v. The ELIZABETH-TOWN AND SOM- EKVILLE RAILROAD COMPANY. Where the charter of a railroad company authorizes the construction of the road, but provides that "payment or tender of payment of all damages for Oie occupancy of lands through which the road may be laid cut, shivll be made before the company shall enter upon or break ground in the premises, except for the purpose of surveying and laying out the road, unless the con- sent of the owner or owners of such lands be first had and obtained ;" if tuft company enter upon any land in violation of such provision, for the purpose of constructing their road, without payment or tender of damages, and with- out the consent of the owner, it affords a clear case for the interference of a court of equity by injunction. In such cases it is proper to require notice of application for the injunction to be given, wherever it can be done, and save the complainant from the injury which ho Eetks to avert. The operations of a company in the construction of a great work of pub io convenience, should not be suddenly arrested without notice, unless in a case of urgent and pressing necessity ; yet, where the complainants cannot bo otherwise secured in their rights, an ex parte order for an injunction w.ll be granted. Under the charter of the Elizabeth-l'own and Somerville railroad company, before the company can take the land for the construction of their road, the ilaims of all persons having rights in the laud are clearly to be satisfied, ua well those who have the residuary interest as those having the present estate. The court will refuse its aid, not merely to a party who fraudulently misrepre- sents his title, but also to one who remains silent when duty, candor aud f. iir dealing require him to speak out. INJUNCTION bill, filed May 1st, 1841, by the children and heirs at law of John Ross, late of the county of Somerset, de- ceased, states, that the said John Ross, before and at the time of his death, was seized in fee simple and possessed of a large tract of land, situate in the township of Bridgewatcr, in the county of Somerset, and being so seized and possessed thereof, made and executed his last will and testament in duo form of law to pass real estate, bearing date the 20th day of January, 1808 ; and thereby, among other tilings, after providing for the payment of his debts, gave one-third of the residue of his estate JULY TERM, 1811. Rosa et al. v. E!iz. Town nn I Somerville Railroad Co. to his widow, Martha Ross, during her widowhood ; and to his eons, John, Joseph, Peter, James and William, ho gave each two shares ; and to his three daughters, Sarah, Martha and Esther, he gave each one share of all the residue of his estate, after tho payment of his debts ; and in casp of the death of either of hL children before attaining the age of twenty-one years, he gavo his or her share so dying to the survivors. The will further di- rects, that the estate should not be divided until the youngest child attained the age of twenty-one years. That the testator died in the year 1808, leaving the said will in full force, in no wise altered or revoked, and leaving him surviving eight cliil dren, the devisees named in his will, viz., Sarah, who hath sinco intermarried with Jeremiah Parsells, John Ross, Martha Ross, who married Isaac Staats and afterwards died, leaving ouo daughter, Margaret, who intermarried with Reuben Freeman, Esther Ross, who hath since intermarried with David R. Run- yan, and 'Joseph Ross, Peter Ross, James Ross and "William Ross. That on the 28th day of March, 1808, the executors named in the said will duly proved the same, and took upon themselves the burthen of the execution thereof, and the sai J will was duly recorded in the surrogate's office of the said coa'nty of Somerset. That after the decease of the testator, his widow, the said Martha Ross, with the assent of the devisees named in: the will, remained in the possession and enjoyment of tho de- vised premises, from the death ot I he testator until the year 1823, j when the devisees, by deed of assignment dated the 2d day of 1 April, 1828, assigned and set off to the said widow, Martha Ross, ; as and for her dower in the real estate of the said John Ross, deceased, two certain lots of land, with the appurtenances in the B lid deed particularly described, to hold to the said Martha Ross during her natural life. That from the date of the said assign- ment, the eaid Martha Ross hath remained in possession of the premises conveyed by the said assignment, and hath received the rents, issues and profits thereof. That on the 29th day of May, 1829, James Ross, one of the children and devisees of he| said John Ross, deceased, together with his wife, by deed ol ro j CASES IK CHANCERY, Ross et al. v. Eiiz. Town and Somerville Railroad Co. lease bearing date on the day and year last aforesaid, for the 'consideration of three hundred and sixty dollars, released to his brothers, John, Joseph and William, three others of the devisees in the said will named, all his estate and interest in the premises 'so as aforesaid assigned to the said Martha Ross, for her dower in the real estate of the said testator ; which said release was duly acknowledged, and on the 80th day of May, 1829, was recorded in the clerk's office of the said county of Somerset. j That on the 9th day of -February, 1831, the council and gene- ral assembly of the state of New-Jersey, passed an act, entitled, "An act to incorporate the Elizabeth-Town and Somerville rail- road company ;" by the sixth section of which said act it is enact- ed, that the president and directors of the said company be, and they are hereby authorized and invested with all the rights and powers necessary and expedient to survey, lay out and construct a railroad or lateral roads, from one or more suitable place or places in the village of Somerville, to one or more place or places in Elizabeth-Town, passing as near as practicable through Bound-Brook, Plainfield, Scotch Plains and Westfield, not ex- ceeding sixty-six feet wide, with as many sets of tracks and rails as they may deem necessary ; and it shall be lawful for the said president and directors, their agents, engineers, superintendents, or others in their employ, to enter at all times upon all lands or water, for the purpose of exploring, surveying, levelling or lay- ing out the route or routes of such railroad or lateral roads, and of locating the same, and to do and erect all necessary works, buildings and appendages thereof, doing no unnecessary injury to private or other property : and when the route or routes of Btich road or lateral roads shall have been determined upon, and a survey of such route or routes deposited in the office of the secretary of State, then it shall be lawful for the said company, by its officers, agents, engineers, superintendents, contractors, workmen and other persons in their employ, to enter upon, take possession of,hold,have, use, occupy and excavate any such lands, and to erect embankments, bridges, ferries, and all other works necessary to lay rails, and to do all other things which shall le JULY TERM, 1841. 425 Ross ct al v. Eliz. TOTII and Somervillo Railroad Co. suitable or necessary for the completion or repairs of the said road or roads, subject to such compensation as 13 herein .if tor provided: Provided always, that the payment, or tender of tho payment, of all damages for tho occupancy of lands through -which the caid railroad or railroads may bo laid out, bo made before the raid company, or any person under their direction or employ, chall enter upon or break ground in the premises, except for the purpose of surveying and laying out said road or roads, unless the consent of the owner or owners of such lands be first liad end obtained. And by the seventh section of the said act it is further enacted, that when the said company or its agents cannot agree with the o\vner or owners of such required lands or materials for tho use cr purchase thereof, or when, by reason of the legal incapacity or absence of such owner or owners, no such agreement can be made, a particular description of the land or materials so requir- ed for the use of the said company, in the construction of tho caid road, shall bo given in writing, under tho oath or affirma- tion of some engineer or proper agent of the company, and also the name or names of tho occupant or occupants, if any there be, and of the owner or owners, if known, and their residence, if the same can be ascertained, to one of the justices of tho su- preme court of this state, who shall cause the said company to give notice thereof to tho persons interested, if known and in this ctate, or if unknown or out of this state, to mako pubh'cation thereof, as ho shall direct, for any term not less than twenty days, and to assign a particular time and place for tho appoint- ment of the commissioners herein after named, at which time, upon satisfactory evidence to him of the service or publication of Duch notice aforesaid, ho shall appoint, under his hand and seal, three disinterested, impartial and judicious freeholders, not rcsi- tlcut in the county in which the lands or materials in controversy lie, or the owners reside, commissioners to examine and appraise the said lands or materials, and to assess the damages, upon such notice to be given to the persons interested, as shall be directed by the justice making such appointment, to be expressed therein, u 65 426 CASES IN CHANCERY, H. .. . >T--- ' Ross et al v. Eliz . Town and Somerville Kailroad Co . not less than twenty days : And it shall be the duty of the said commissioners, having first taken and subscribed an oath or affirmation before some person duly authorized to administer an oath, faithfully and impartially to examine the matter in question, and to make a true report, according to the best of their skill and understanding, to meet at the time and place appointed, and proceed to view and examine the said lands or materials, and to make a just and equitable estimate or appraisement of the value of the same, and assessment of damages, and shall be paid by the company for such lands or materials, and damages aforesaid ; which report shall be made in writing, under the hands and seals of the said commissioners, or any two of them, and filed within ten days thereafter, together with the aforesaid description of the land or materials, and the appointment, and oaths or affirma- tions aforesaid, in the clerk's office of the county in which the lands or materials are situate, to remain of record therein ; which report, or a copy thereof certified by the clerk of said county, shall at all times be considered as plenary evidence of the right of the said company to have, hold, use, occupy, possess and en- joy the said lands or materials, or of the said owner or owners to recover the amount of said valuation, with interest and costs, in an action of debt, in any court of competent jurisdiction, in a suit to be instituted against the company, if they shall neglect or refuse to pay the same for twenty days after demand made of their treasurer, and shall, from time to time, constitute a lien upon the property of the company, in the nature of a mortgage ; and the said justice of the supreme court shall, on< application of either party, and on reasonable notice to the others, tax and allow such costs, fees and expenses, to the justice of the BU^- preme court, commissioners, clerks, and other persons perform- ing any of the duties prescribed in this section of this act, as they or he shall think equitable and right, and to order and di- rect by whom the same shall be paid, under the circumstances of the case. The bill further states, that the Elizabeth-Town and Somer- ville railroad company have proceeded to construct a railroad JTJLT TEEM, 1841. 427 Ross et al. v. Eliz. Town and Somarvillo Rxilroal Co. from Eliznbetli-Town to Bound-Brook, and arc now engaged in an effort and attempt to extend the same beyond Bound-Brook to Somerville. That they have not only entered upon the Baid tract of land devised to the children of the said John Ross, and assigned to the said Martha Ross for her life, (and which in tho bill of complaint is particularly described,) for the purposes of ex- ploring, surveying, levelling and laying out tho route of tho said railroad and of locating the same, but under pretence of consid- ering the said Martha Ross as tho owner of said lands, on the SOth day of November, 1840, the said company applied to Joseph C. Ilornblower, chief justice of the state of New-Jersey, as tho complainants have since understood, for the appointment of com- missioners to examine and appraise tho said lands, or so much thereof as the said company may require for the construction of their road, and that upon such application tho following was al- leged to be a particular description of the lands thereby declared to be owned and possessed by the widow Martha Ross, of tho township of Bridgcwater, in the county of Somerset, where tho said lands are situate required for the use of tho said company, for the construction of their said railroad, over tho lands of tho said Martha Ross, who now occupies the same, and for which the company cannot agree with tho said Martha Ross for the pur- chase thereof, to wit: [description by rnetcs and bounds]. That it appears by reference to said proceedings, that tho SOth day of December then next, was assigned by the chief justice for tho appointment of commissioners to examine and appraise said lands so required and to assess tho damages, and tho said com- pany were by the order of tho said chief justice directed to givo .notice thereof in writing to the said Martha Ross, and such no- rtice was accordingly given, and such commissioners were ap- pointed, and authorized by such appointment to examine and appraise the lands so required as aforesaid, and to assess tho dam- ages to be paid by the company therefor, upon notice to bo given to the said Martha Ross. And tho said commissioners, upon proof being made of the service of notice upon tho said Martha Ross only of the time of making such .examination, appraisement and 428 CASES IN CHANCERY, Ross et al. v. Eliz. Town and Somervillo Railroad Co. assessment, did, on the 24th day of February, 1841, report that the sum of thirteen hundred dollars should be paid by said com- pany for the said lands and damages, and that a receipt of the said Martha Ross for the said sum of thirteen hundred dollars is endorsed upon the said proceedings. That no notice having been given to the complainants, or either of them, of the institution and prosecution of the proceedings af oresaid,the same, with the appraisement and estimate of damages, could have been intended to apply only to the life estate of the said Martha Ross. That express notice was given by the said Martha Ross to the agents and officers of the Elizabeth-Town and Somerville railroad com- pany, before the institution of the said proceedings, that sho had only a life estate in the premises, and that the fee was in Ler children ; that no notice was given to the complainants, or either of them, in conformity with the provisions of the said act, of the application to the chief justice for the appointment of commis- sioners ; and that some of the complainants, for themselves and on the behalf of the others, protested before the said commission- era, against their proceeding to mate any valuation or assessment in the premises ; and that the said commissioners were informed by one of the complainants, that the said Martha Ross was not the owner in fee of the said premises. That the injury which will be sustained by the said premises by reason of the construc- tion of the railroad, will be great, permanent and irreparable ; that the house will be rendered untenantable, that all communi- cation between the house and the other part of the premises will be intercepted by the depth of the cut and excavation, that the facilities for entering the barn and stable will be destroyed, and that the buildings will be constantly exposed to the danger of being burnt by fire from passing locomotive engines ; and that it has been generally reported and believed that the defendants aro insolvent and unable to respond in damages. The bill prays that an injunction may issue to restrain the defendants from re- moving fences or buildings, or breaking ground, or making ar,y excavation upon the premises for the purpose of constructing their railroad. JULY TERM, 1341 429 Rosset nl v. Eiiz. Town and Soraerville Railroad Co. Upon filing the bill an injunction was allowed by one of the masters df the court. On the 8th day of May, 1841, on the application of the de- fendants, an order was made requiring the complainants to show cause, on the 21st day of May instant, why the injunction should not be dissolved, and that both parties should be r.t liberty to take affidavits to be used on the hearing. In pursuance of the rule, affidavits were taken by both parties, and the hearing hav- ing been postponed by consent, on the 14th of June the defend- ants filed their answer. The answer admits that John Ross died seized of the premises, having duly executed his will to pass real estate, and that ho died about the year 1808, leaving him surviving his widow and eight children, as set forth in the complainants' bill ; that tho widow was in possession at and after the death of her husband, and has ever since continued in possession. States that on tho 9th day of February, 1831, the council and general assembly of the state of New-Jersey passed an act, incorporating tho Eliza- beth-Town and Somerville railroad company, and that the said company have at very great expense constructed and put in ope- ration the railroad from Elizabeth-Town to Bound-Brook, a dis- tance of twenty miles and a half, and that in order to finish tho road from Bound-Brook to Somerville, as the defendants are by their charter enjoined to do, they by their agents called on Mar- tha Ross, who was in possession of the premises, the road hav- ing previously been located and staked out through the same, to whom the said Martha Ross stated that she was the sole owner of the said premises, and entitled to receive compensation for tho land and damages ; that John Ross, one of tho complainants, and who acts as the agent of the others, expressly stated that tho premises belonged to his mother ; that it was well known to the complainants, before the application to the clu'ef justice for the appointment of commissioners, that the road would cross the premises in possession of the said Martha Rosa ; that before making said application, the company endeavored to make an agreement with the said Martha Ross for the said land and dam- 430 CASES IX CHANCERY, Koss et ill. v. Eliz. Town and Somerville Railroad Co. ages, and for this purpose two officers of the company called upon her, and in the presence of two of her children, the com- plainants John and William Ross, and with their knowledge, en- deavored to agree with her for the same ; and that John Ross, one of the complainants, then represented that the land was his mother's, and manifested much anxiety that the amount to bo paid to her by the company should be amicably agreed upon; that all the complainants well knew that the company were en- deavoring to agree with the said Martha Ross for the said land and damages, without informing the company, or in any way intimating to them, or to their agents, that they had any right in the premises. Admits that the company are engaged in the construction of the road, and that it is located, as set forth in the bill of complaint ; and that the defendants are about to enter for the purpose of constructing their road, and that they made ap- plication to Joseph C. Hornblower, chief justice, for the appoint- ment of commissioners, as set forth in the bill of complaint. States that the said chief justice appointed James Parker, Gideon Ross and "William Stites commissioners, who met upon the pre- mises on the 24th day of February, 1841 ; that one of the com- plainants appeared before the chief justice on behalf of the said Martha Ross ; that several of them appeared before the commis- sioners, and endeavored to prevail on them to allow the said Martha Ross a larger sum for the land and damages. That the said commissioners awarded to the said Martha Ross, as the owner of the said land, thirteen hundred dollars for the land and all damages ; and that the said sum is a large and full price for the fee simple of the land taken by the company and for all damages. That before the defendants attempted to enter on the land, they paid to the said Martha Ross the said sum of thirteen hundred dollars, and took her receipt for the same ; that the said sum was paid to the said Martha with the knowledge of several of the complainants, and without any objection on their jxirt, or any claim of right by them in the premises. That the defend- ants had no knowledge of any person having any interest in the said premises except the said Martha Ross, and that they were JULY TERM, 1841. 431 R^ss et nl. v. Eliz.Town and Somerville Railroad Co. led to the belief that she was the sole owner by the representa- tions of some of the complainants, and that no notice to the con- trary was at any time given by the complainants or any of them. Denies that cither of the complainants protested before the com- missioners ngainst any proceeding towards a valuation, appraise- ment or assessment, but admits that one of the complainants objected, without stating his reasons for so doing. Denies thafc the commissioners were informed by either of the complainants that the premises did not belong to the said Martha Ross. Denies that the injury to the premises will be great or irreparable, and also that the defendants arc insolvent, or unable to respond in damages. The answer, as well as the bill, was accompanied by numerous affidavits, verifying the facts therein stated. The cause came to hearing on the 28th of June, 1841, at a special term held at Newark, upon the rule to show cause why the injunction should not be dissolved. Scott and U. W. Green, for complainants. TJiomson and /. If. Williamson, for defendants. Cases cited by defendants' counsel. Savage v. Foster, 9 Mo- dern, 35 ; Berrisford v. Milward, 2 Atkyns, 49 ; East India Co. v. Vincent, 2 Hid, 83 ; Arnot v. Biscoe, 1 Vcsey, sen. 95 ; Bening v. Brown, 3 Itidgway's Parl. Rep. 518 ; Wendell v. Van Rcnselaer, 1 John. Clian. 12. 350; Iliginbotham v. Bur- net, 5 Hid, 184 ; Storrs v. Baker, 6 Hid, ICO ; Crawford v. Bertholf, Saxton., 4GO ; 17 Wendell, 151. THE CHANCELLOR. By the act incorporating the Elizabeth- Town and Somerville railroad company, the president and di- rectors of the company are authorized to lay out and construct a railroad from Elizabeth-Town to Somerville, and by a supple- ment to the original act they may extend the road to the Dela- ware river. For this purpose, liberty is given to them, their agents and others in their employ, at all times to enter upon any 432 CASES IN CHANCEST, ROBS el al. v. Eliz.Town and Somervillo Railrond Co. landb in tlieir route, for the purpose of exploring, surveying laying oard on the ground 4GO CASES IK Graecen v. Graeceru of extreme cruelty. The parties are now aged people ; the com- plainant beyond sixty, and the defendant beyond seventy years of age. It is nearly forty years since the marriage took place, and the evidence exhibits a melancholy picture of unhappiness in domestic life. It is not a case produced by intemperance, or idle- ness, or extravagance, or dishonesty. The parties in their obli- gations to others seem, as far as can be judged from the case, to have acted like persons of excellent understanding, honest, in their dealings, and very industrious and frugal ; but towards each other there was evidently no bond of affection, and on the part of the husband a fierce, uncontrolable temper. I cannot fail to remark here, that the course taken in the examination of the witnesses, has been calculated rather to confuse and embarrass the case, than to aid the court in coming to a just conclusion up- on its merits. The evidence should have been confined to the specific charges in the bill, whereas it has in reality been little short of a history of all the family quarrels for the last twenty years, a recital at all times disgusting and painful, and never to be resorted to but from the strongest necessity. My purpose will be to examine the charges in the bill by the evidence, and see w'.iether the defendant has exposed himself to the accusation of extreme cruelty, upon which alone the complainant can entitle herself to the relief sought. In point of time, the first and most serious charge to 'be con- sidered is that in relation to Alexander Dawson. The complain- ant alleges that her husband, for the purpose of laying a foun- dation for a divorce from her, negociated a plan with one Alex- ander Dawson, by which he, Dawson, after his wife had gone to bed, was to go in her room and get into her bed, and then wit- nesses were to bo introduced into the room suddenly and detect him in that position. If this charge be true, a more base attempt to ruin the character of his wife could not be conceived of, a^nd should for ever absolve her from all further obligations to him. I have been slow to believe this story, so repugnant to all correct and manly deportment, but I confess my conviction, from the evidence, that it has too much foundation in truth. Alexander JULY TERM, 1841. 461 Graeccn v, Graecen. Dawson swears to it himself, positively, and names two persons whom the defendant told him he had employed as witnesses to stay in the barn. The witness says he promised the defendant three or four different times that he would go to his house for that purpose, but never did go, and finally refused. lie also says he was to receive for this act a pair of oxen worth from eighty to one hundred dollars. The character of this witness for varacity is impeached by several others, and by others again ho is spoken favorably of. I would not give much credence to this story if it depended on the testimony of this witness alone, for I could desire no stronger impeachment of his character than the f .ict that he would suffer himself to be employed in so despicable and dishonorable a transaction. But we have it in evidence from Sophia, one of the daughters of these parties, that her father told her, when speaking of the stories that had been in circula- tion about him, that they were not true except the DawBon story, and then said that he blamed himself for that. The story, ho said, was only true in part, for the proposition was mude by Daw- son to him, and not by him to Dawson, and he regretted he had listened to him. I see very little difference whether the defend- ant made the proposition to Dawson, or suffered Dawson to make such an one to him, and listened to it. He further added, that he finally told Dawson he would not accede to his proposition. To another daughter, Jane, he repeated substantially the same thing, and on another occasion. From the evidence of Julius A. Graeccn, a son and a witness in behalf of the defendant, (al- though drawn from him with manifest reluctance,) it is evident the defendant gave him five dollars to be used to prevent Daw- son from being a witness in this cause ; and Dawson himself says, that he was persuaded not to attend as a witness, and that one Daniel Me Vicker took him to a stone and lifting it up, said, "There is some money for you, but I don't give it to you. This is to keep you from going to Morristown." The two persons whom the defendant named to Dawson as the persons he had employe 1 to stay in the barn to keep watch for him, both declare they were never so employed, and yet a witness by the name of 402 CASES IJS T CHANCERY, Graecen v. (Iraecen. Stephen Sanders swears, that he and another person were em- ployed, at about the time Dawson speaks of, by the defendant, to stay in his barn, under pretence that there was something go- ing on wrong in the house taking away his things by his wife's father was mentioned and that he did stay there until past mid- night. From all this, if any credit is to be given to witnesses, there is too much foundation for the belief that the story Dawson tells is true in all its material parts. Another ground of complaint made in the bill, is actual vio- lence and threats of violence towards the complainant. I am happy in finding the evidence of positive violence insufficient, but that threats have on several occasions been made, and that too under circumstances calculated to alarm the complainant, (espe- cially when made by a man of violent passions,) there can be no doubt. Margaret Alward testifies, that on one occasion, when they were ftt dinner, the defendant came in and said to his wife in a passion, bringing his hand down on the table, " I swear by God I will put the knife through your head, if they hang me for it." She further says, she has heard him more than once threaten to put her or kick her out of doors. The daughter So- phia coniirms the account at the dinner table so far as to recol- lect his bringing his hand down on the table, and his being in a great passion, and hearing the words " if they hang me for it," but being disturbed by the scene she left the table. Sophia also says, that on another occasion, he took the axe from the wood- pile in great anger, and went up to her mother's room with it in his hand, and the witness took hold of him and endeavored to restrain him. She saw him take her mother's cloak and stamp on it, and burn one of her dresses. At another time, the daugh- ter Jane testifies, that she saw her father in a great rage take the axe and chase her mother round the house to a cellar door, and there raised the axe and threaten to split her down. The daugh- ters spoke to him on the subject of his treatment to their mother, and complained to him that she had no peace ; his answer was. that she did not deserve peace, and never should have peace. They represent him as ferocious and ungovernable at times, and JULY TEHM, 1841. 4G3 Graecen v. Graecen. are evidently impressed that their mother was treated bad by their father. They say that during the last year theif mother lived at home, they did not feel it safe to leave her there alone with him, as his conduct manifested so much hatred and dislike to her. Another charge, which seems fully sustained against the de- fendant, is the manner in which he spoke of the complainant to his hands and to her, by calling her his devil, faggot of hell, a Baskenridge hypocrite, &c. Several witnesses confirm this statement. It seems the complainant was in the habit of attend-, ing church at Baskenridge, and was a member of the church there. lie evidently intended to reproach her for her religious sentiments, and would at times refuse her a horse to go to church. When the neighbors took her with them, some of the witnesses say he reproached them for it. In sickness, also, he seems to have neglected his wife shamefully, never going in to see her, and sometimes refusing and objecting to having a physician sent for. There are other instances stated in tho bill, and in the evi- dence, of unjustifiable conduct on the part of the defendant, which it is unnecessary to examine, as I deem what has already been said a sufficient outline of this disgusting history to exhibit the case made by the complainant ; a case which upon its face claims for her the protection of ths court, unless the defendant can in some way defend himself against so serious accusations. Without going minutely into his evidence, it will be proper to consider some of the grounds of defence assumed by him. And first, he alleges that the conduct of the complainant her- self was calculated to excite his passions, and that she and the daughters have conspired against him. I am very far from con- sidering the complainant blameless. She appears to be a woman of spirit and temper, but I can trace in her conduct nothing to justify the treatment she received. It is hardly to be supposed that a woman can receive every indignity at the hands of her husband, and never show resentment. It is human nature, and even if at times her conduct might afford some extenuation of 464 CASES IN CHANCERY, Graecen v. Graccen. her husband's conduct, it can never justify it. The defendant is a farmer of respectable property, and the complainant, as is clearly proved, was a hard-working woman, and contributed her share in accumulating the property and bringing up the family. It was her habit to sell things from the farm, such as butter, and even grain at times, and supply the family with groceries and other necessaries not furnished from the farm. I have formed the opinion from the evidence, that the female branch of this family, both the mother and daughters, had a higher ambition than the defendant, and desired to place themselves in the world on the best footing in their power. For this I would rather com- mend them, and especially as it was done by their individual exertions, rather than by any undue calls upon the defendant. All that part of the evidence, therefore, relating to things taken from the place and exchanged at the stove by the complainant, would seem to fall naturally and properly under this arrangement of the family. It is attempted to fasten a charge upon the complainant of having posted up a notice of an infamous character, at a Mrs. Heath's, impeaching her virtue ; and from the evidence of Juliua A. Graecen I was impressed that it must be so. He says he saw the writing in his mother's possession, which she read to him, and said it would be a fine thing to destroy her character. He says further, that she dressed up a girl by the name of Ruth Cummings in his clothes, and gives it as his impression that she sent the girl to paste it up at Mrs. Heath's gate. This seems very plain evidence, and yet the story on the face of it is un- natural for a sensible woman, as the complainant is reputed to be, for her detection would be certain. Jane, the sister of this witness, however, on her examination, says, that two persons, esquire Dayton and esquire Rickey, were called in at one time to settle some difficulties between the complainant and the defend- ant, when the defendant charged his wife with putting up this notice, and Julius was asked if ho had ever seen the notice be- fore, and lie said he had not and knew nothing about it. If ! true, the fact of the complainant's having placed up a paper of JULY TERM, 1841. 4C5 Graccen v. Graecen. tliis kind at the door of a neighbor of unimpeachable character, would certainly detract much from her own standing ; but while I have no doubt, from the evidence of Mr. Heath and others, that sucn notice was put up, I am by no means satisfied that it was put up by this complainant. There is no proof but that of Julius to fix it upon her, and it seems that on another occasion he denied all knowledge about it. Several of the hands who worked on the place have been ex- amined, and they state, according to their own impressions, which of these parties was most to blame. In general they do not complain that Mrs. Graccen did not make proper provision for them, but they speak unfavorably of her general disposition and temper. Her conduct when she left her husband's house, in taking away household furniture, was certainly in the highest degree improper, and the goods might at any time have been reclaimed by the defendant. It was not a sufficient excuse for so doing, that die had labored with her own hands to procure most that she took, and that her desolate situation required it This may afford some apology, but it would have been far better had she gone away empty-handed, and resorted to the laws of the country for her rights. The charge of combination on the part of the daughters against their father, and in favor of their mother, is not sustained. I see no sayings or doings on their part toward their father, that can expose them to this censure. If they believed their mother bad- ly treated, they had a right to espouse her cause and vindicate her from reproach. They should do so, undoubtedly, in a pro- 1 per form and manner, and for aught that appears it was so done. It is further objected, that many of the transactions referred to are too far back, and should not now be brought forward to prejudice this cause. There is some weight in this objection, and if it were an isolated occurrence long since passed by, on which alone the cause rested, I should think it ought to prevail, and especially so if a different course of treatment had of late years been pursued. But the evidence is, that the bitterness anu 60 4GG Graecen v. Graecen. ill feeling of the defendant towards his wife has not only contin- ued, but been on the increase up to the time of her leaving her home. It is the connexion which exists between the acts of op- pression on the part of this husband in former days and now, showing a series of injustice and wrong on his part, and of long endurance and forbearance on the part of the wife, that gives force and propriety to this evidence. It is objected, that as no actual violence is shown to the person of the complainant, the case is not within the meaning of the statute which authorizes a divorce for extreme cruelty. What are the limits to which the court are confined under this act, it may not be easy to define, and it is not necessary so to do in the present case. I deem the conduct of the defendant as clearly and plainly within the act. In 4 John. Chan.' 189, chancellor Kent says, " That mere petulance and rudeness, and sallies of passion, might not be sufficient, but a series of acts of personal violence, or danger of life, limb or health are." If the conduct of this defendant in the Dawson affair, in raising the axe and threatening to cut down his wife, and continual use of insulting language toward her, are not within the meaning of the act, it would be difficult to find a case that is. It is a case every way much stronger than that in /Saxton, 474, in which a divorce was ordered. As to the notice which the defendant served on his wife after this suit was instituted, requesting her to come back, it can avail him nothing. If she lived there in the unhappy state related by the witnesses, she was noi- bound to return, and I feel well satis- fied the notice was only served to produce an effect on this cause. The defendant did not wish his wife to return ; indeed, he told his daughter-in-law that if she did come back, he would choose what corner of the house to put her in. My view of this whole case is, that I am called upon by every principle of justice to separate these parties. How is this family now situated ? The father remains the sole tenant of his home. The children, four in number, three of them females unmarried, ;and the wife,have left it,and as they 8ay,on account of the conduct JULY TERM, 1841. 407 Graecen v. Graecen. of this defendant. The girls say liis treatment of their mother rendered their life unhappy, and the son, who went there to livo with his wife after his mother left, has also gone, and the very night before he left had, as he says, a scuffle with his father, ia which his father threatened to stab him. One of the counsel of the defendant, indeed, stated on t'.ic argument, that he did not so much object' to the separation, bat protested against any decree for alimony. This would be cruel, indeed, to turn off this old woman, after toiling for nearly forty years on the farm, without a cent. She is now old and unable to procure a support without the assistance of her daughters, who have their own living to make. She is entitled to reasonable ali- mony. I shall, therefore, decree a divorce a mensa ct thoro, for life, between these parties, and refer the question of alimony to a master in the usual form. CITED in Cook v. Cook, 3 Stock. 193; Close v. Close, 9 0. E. ffr. 346; Clo* v. Cltse, 10 C. E. Gr. 527; 528. JOHN G. COSTEE v. The MONROE MANUFACTUELNG COMPANY. Where land is conveyed with covenant of warranty, and the purchasers are evicted from part of the premises, or a judgment in ejectment is recovered ngainst them; on a bill by the vendor for a foreclosure of a mortgage giv*- u f jraportof the purchase money, equity will permit the purchasers, or those claiming under them, to avail themselves of the failure of title as a defence ngainst recovery upon the mortgage; and will either stay the proceeding* upon the mortgage until the damages arising from the failure of title are ascertained by a suit ot law, or will direct an issue, or a reference to a mau- ler, to Ascertain the damages, before decreeing a recovery upon the mort- gage. As a general rule, it will be referral te a master to ascertain the damages, unless the complainant requires a trial at law. Bat if the bill for foreclosure be filed by an assignee of the mortgage withovt notice, will equity, under such circumstances interfere? Quere, A court of equity will, to effectuate justice, settle unliquidated damage*. A covenant of warranty by one of several grantors, made at tho same ti OK with the original deed, and endorsed upon it, will receive the same con- struction as if made in the body of the deed. 4C8 CASES IN CHANCERY, Coster v. Monroe Manufacturing Co. An actual eviction is not necessary to entitle the defendant to his damages on the covenant, provided there has been a trial and judgment in ejectment, though, the court will not act on tho mere allegation that tho title is de- fective. Where one of several grantors, holding one hundred and forty-nine shaers out of sis hundred and eighty-two, in which the premises are held, cove- nants that ho is the owner of the said one hundred and forty-nine shares, and that the Bame aro free of incumbrances, and that the grantor will war- rant and defend the title to the bargained premises to the ex'ent of said shares and no further, and the title to the premises partially fails, the ven- dor is liable on his covenant only in proportion to the nuraberof shares held by him. lu the construction of covenants, it is a settled rule both at law and in equity, to look to the evident meaning of tho parlies. THE bill in this cause was filed for the foreclosure of a mort- gage given bj Francis Mann and wife and John ~W. Berry and wife to the complainant, bearing date on the first day of Febru- ary, eighteen hundred and thirty-one, to secure the payment of twenty thousand dollars. The answer of the defendants, " The Monroe Manufacturing ' O company," admits the bond and mortgage as stated in the com- plainant's bill ; but states, that the mortgaged premises were sold and convoyed by the complainant and others to Francis Mann and John W. Berry, by deed bearing even date with the complain- ant's mortgage for the consideration of twenty-five thousand dol- lars, and that the bond and mortgage mentioned in the com- plainant's bill were given to secure part of the purchase money of said premises : that the premises, prior to the execution of the deed, were declared by tho three owners thereof to be divided into six hundred and eighty-two shares, and that at the time of the said sale complainant held one hundred and forty-nine shares thereof, and was entitled to a like proportion of the consideration money given for the purchase of said premises, which proportion amounted to about five thousand four hundred and sixty dollars : that on the same day, and at tho time of the execution of the deed to Mann and Berry, and before the delivery of tho deed or of the bond and mortgage, the complainant duly executed, under his hand and seal, a special covenant of warranty of the title to JULY TERM, 1841. 403 Cost, r Y. Monroe Manufacturing Co. said premises, endorsed on the deed in the following words : " Know all men by these presents, that I, John G. Coster, one " of the grantors within named, do hereby, for myself, my heirs, " executors, administrators and assigns, in respect of my propor- " tion, being one hundred and forty-nine shares out of the six " hundred and eighty-two shares within mentioned, and of the " like proportion of the consideration monies within mentioned, "but not in respect of the residue of shares or of the said "consideration money, covenant and agree with the within "named Francis Maim and John "VV. Berry, their heirs and te- " signs, that I am the owner of the said one hundred and f orty- " nine shares, and have good right to sell the same in the manner " within mentioned, and that the same are free of all inculn- " brances and that I will warrant and defend the title to the "within premises to the extent of said shares and no further, to " said Francis Mann and John W. Berry, their heirs and as- " signs." Insists, that the covenant was a part of the transac- tion of sale and purchase, that it was intended to be and should be considered as a part of the said deed of conveyance. States, that by deed, dated June 23d, 1834, John ~W. Berry and wife conveyed to James K. Mathews the undivided half part of the premises, machinery, &c., as described in complainant's bill, and that by deed dated September 20th, 1834, Francis Maun and wife conveyed to the said James N. Mathews his undivided half part of the said premises and machinery, &c. subject to the com plaiuant's mortgage : that the said deed from Mann to Mathews contained covenants of quiet possession, against incumbrances of every description excepting complainant's mortgage, and of general warranty : that by means of said conveyances, Matthews became possessed of the entire premises, with the machinery thereon, and that he also received the title deed and covenant executed by complainant. States, that by deed, dated August 22d, 1835, Mathews, for the consideration of thirty thousand dollars, conveyed the premises, with the improvements, to Samuel G. Wheeler, subject to complainant's mortgage, which was ac- counted as part of the consideration money, and that Mathewe 470 CASES IN CHANCERY, Coster T. Mouroe Manufacturing Co. passed to Wheelerthe title deeds and the aforesaid covenant ; and that the deed from Mathews to Wheeler contained full covenants of warranty of title. That when Wheeler purchased the prem- ises, the mills and buildings were out of repair ; that he expend- ed large sums of money in repairing and painting the same, and in purchasing and erecting machinery : that he erected another building upon the premises, which he also stocked with machine- ry, and that by menos of his improvements the property was greatly enhanced in value. That the " Monroe Manufacturing company" is an incorporation created by the legislature of New- Jersey, forinanufacturing cotton and other articles : that their location and seat of business is in Paterson ; that for the purpose of carrying on their business with greater advantage, they pur- chased from Samuel G. Wheeler the property covered by com- plainant's mortgage : that Wheeler and wife, by deed containing full covenants, dated 24th March, 1838, for the consideration of sixty thousand dollars, conveyed to said company the same prem- ises set forth and described in complainant's mortgage and bill, to gether with the mills and improvements thereon : that the prem- ises, at the time of the last mentioned purchase, were understood to be subject to complainant's mortgage, and that the company were to pay off and satisfy the same : that the deed from Whco- ler to the company contained covenants of seizin and warranty against incumbrances, and that all the title papers and the cove- nant of complainant were handed over to the company. That the title of complainant and the other original grantors, was not good for all the premises conveyed by them to Berry and Mann and embraced in complainant's mortgage ; but that their titlo to a part thereof, upon which Wheeler had erected a building and made valuable improvements, (a particular description whereof ia contained in the answer,) was wholly defective : that while tho premises were possessed by Mathews, an action of trespass and ejectment was instituted against him in tho supremo court of New-Jersey, on the demise of " the Society for establishing use- ful Manufactures," for that part of the mortgaged premises de- scribed in the answer: that although tho suit was pending JULY TERM, 1841. 471 Coster v. Monroe Manufacturing Co. against Mathews at the time of the purchase by the company from Wheeler, they were induced by the inquiries he had made respecting the title, and the opinions obtained from his counsel, to believe that his title, derived originally from complainant and others, was perfect and valid for the whole premises, and that they purchased under such belief. States, that after Wheeler purchased the premises and entered into possession, and during the pendency of the said action of ejectment, he had several in- terviews upon the subject with complainant and his counsel ; that he gave complainant notice of the suit, and required him to de- fend the same ; that complainant never denied his liability upon his covenant, but always promised Wheeler to have the matter arranged : that complainant's son and counsel visited Paterson. and had one or more interviews with the governor of said society upon the subject : that upon complainant's request the trial of tho cause was once or of tener postponed, on account of the absence of one of the grantors from the country, upon complainant's iiJ- legation that on his return home the matter should be settled to Wheeler's satisfaction. That once, when the cause was noticed for trial, a written notice informing him of the time and place was previously left at complainant's dwelling house in Kew-York, ' requesting him to defend the title to the property against the claim of the said society : that complainant failed to attend to the cause, and that tlie plaintiff obtained judgment in liis said action ' for the recovery of said premises ; that subsequently a writ of possession was issued, directing the sheriff to give the plaintiff possession of the ground and premises recovered by him : that tho company, having previously purchased the whole premises, including the part for which judgment was recovered by the said society, and being informed that the sheriff was about to dispos- sess them of that part thereof, negotiated with tho society and purchased for five thousand dollars the said piece of land and premises ; which sum was the consideration for the value of the rights of said society in the laud, not embracing the improve- ments made thereon by the company and Wheeler ; and that a conveyance was executed therefor on the 13th of August, 133$, 4Y2 Coster v. Monroe Manufacturing Co. and the money paid. Insists, that an allowance by way of set- off, with interest, should be made from the mortgage debt, equal to the proportion which that part of the premises bore to the whole in respect to the consideration paid to complainant and others up- on the original purchase from them, including the amount se- cured by the mortgage. Charges, that the premises which were defective in title, and for which a recovery was obtained upon a paramount title, constituted a large portion of the whole value of the property conveyed by complainant and others to Berry and Mann ; that the relative value thereof to the residue of the prem- ises, is at least one fifth of the whole, and that the share of the consideration money which should be refunded, with interest, ou account of the defect in the title, will greatly exceed the amount paid to the society, and the interest thereon. States, that Berry and Mathews have left this state, and as they believe do not re- side in the United States, and that Mann is not a resident of New-Jersey ; that Wheeler has become embarrassed, and will be wholly unable to respond to the company on his covenant for any part of their damages in case the whole mortgage debt should be recovered. Insists that in an action at law, complainant would be liable to the company, as assignees of Berry and Mann, upon his covenant of warranty of title, to the extent of the amount of his then interest in the premises, and the like proportion of the whole consideration of the purchase from him and others ; but inasmuch as complainant resides out of this state, and a prosecu- tion upon the said covenant in a foreign state would be attended with embarrassments, the company are willing to take five thou- sand dollars, with interest, the consideration given to the "Society for establishing useful Manufactures" for their conveyance ; or to have that much allowed as a credit on the mortgage debt in dis- charge of the said covenant of complainant ; but they insist that in equity an allowance by way of set-off or deduction ought to be made from the mortgage debt of the amount of five thou- sand dollars, paid to the society, with interest, or a deduction of a rateable proportion of said amount. JULY TERM, 1841. 473 Coster v. Monroe Manufacturing Co. The cause came on for hearing upon the bill, answer, and replication. E. Vajiarsdale, for complainant. E. B. D. Oyden, for defendant. Cases cited by the complainant's counsel. 2 John. Chan. />. 523 ; 2 Brown's Parl. Cas. 134, 136 ; 4 Kent's Com. 475 ; 2 Harrison, 309 ; Jeremy's E%. 486 ; Zevins, 46, 47 ; Dyer, 240; 1 Wendell, 228; 2 Johns. Cas. 203; 2 Bos and. Pull. 13 ; 7 John. It. 380 ; 2 Mass. 437 ; 3 Term Rep. 393, G78 ; 1 lien. Bl. 5G2. TJIE CHAKCELLOK. This bill is filed on a mortgage made by Francis Mann and John "W. Berry to the complainant, to se- cure the payment of twenty thousand dollars. The validity of the mortgage is not questioned, but the defendant claims to have a deduction from its amount for the reasons stated in the answer. By the answer, which is sustained by the proofs, it seems that the mortgage covers what was formerly known as the Bea- ver woollen factory, but latterly the Rutgers cotton factory mills and buildings, and lot of land whereon they stand, in the town of Paterson. This mill, being owned by several persons, was divided by them into shares, and the several parties holding these shares conveyed the property to Mann and Berry, who, as part of the consideration, executed the mortgage to the complainant. The property has been conveyed in the usual and regular man- ner, by Mann and Berry, through several parties, to the defend- ants, u The Monroe Manufacturing company," which company now has the equity of redemption in the premises. The deed to Mann and Berry bears date the first day of February, 1831, (tho same day with the complainant's bond and mortgage,) and is made by the executors of Henry Rutgers, tho executors of Wil- liam Few, Ichabod Prall and wife, Jeroinus Johnson, and the Cl 474: CASES IN CHANCERY, Coster v. Monroe Manufacturing Co. complainant and wife, as parties of the first part. In a recital in the deed, the shares are stated to be six hundred and eighty- two, of which, at the time of the conveyance, the estate of Hen- ry Ilutgers held one hundred and sixty-f our/the estate of William Few one hundred and thirty-five, Ichabod Prall and wife fifty- six, Jcro'mus Johnson one hundred and seventy-eight, and the complainant one hundred and forty-nine. The interest of these parties was distinct, and no way dependant on each other any farther than all share-holders in a joint stock company. Each had an interest to the amount of his shares, and no more. The deed purports and was no doubt made upon the consideration of twenty-five thousand dollars, of which sum the complainant's mortgage constituted twenty thousand dollars, and the remaining five thousand dollars was either paid in cash or otherwise secured. The covenants in the body of the deed are only againsl^the acts of the grantors, for quiet enjoyment and for further assurances ; but there is a separate and independent covenant on the back of the deed for a warranty of title, made by the complainant alone. For a part of the lot conveyed in this deed, the title of the gran- tors turns out to be defective, and an action of ejectment has been brought, the cause tried, and verdict and judgment in favor of the lessor against the title of the grantors in the deed. The ex- ecution was issued and about to be executed for the part recover- ed in the suit, when the defendants, rather than be dispossessed paid the Society for establishing useful Manufactures (the plain- tiffs in ejectment,) five thousand dollars, and took their title for the portion of the premises so declared to belong to them. The defendants now insist that they are entitled to have an abatement on the amount due the complainant on his mortgage, of the damages which they have sustained by the recovery of the Soci- ety for establishing useful Manufactures, by virtue of the cove- nant entered into by the complainant on the back of the deed. This statement of the case will present two questions : 1st, "Whether the defendants can avail themselves of this defence in this action ? and if so, then, 2d, To what extent is the com- JULY TERM, 1S4L 475 Coster v. Monroe Manufacturing Co. plainant bound by his covenant ; or, in other words, what is its true construction and meaning ? 1. Upon the first question, I am, after careful consideration, clearly of opinion, that it is the bounden duty of this court to take notice of a defence of this character, and either stay the suit oa the mortgage until the damages are ascertained by a suit at law, or by directing an issue t settle the liability, or by a refer- ence to a master. To allow the holder of a mortgage to go on and under a decree to establish his claim to his whole demand, v/hcn the defendant shows by the record of recovery against him that a part of the very land for which he gave the mortgage did not belong to the mortgagee at the time he conveyed, and that too against the express covenant of the mortgagee would, I think, ' violate that sound principle of the court which requires that com- pletc justice be done to all parties, and not by halves. Take t his very case, where the title of a part only of the propertyfturns out to be defective. A decree for the whole amount might take from the defendant that portion of the property for which ho has ^ood title, when, if the abatement was made for his loss, it might be in his power to pay off the balance remaining against him, or make such arrangement as to save his property ; and all this c;nbarassmcnt created by the act of the mortgagee in selling property for which he had no title. There is another obvious propriety in this course. The mortgagee may be u/n'jle to pay the damages at the end of a suit on his covenant, ar.cl if so, he (jets the whole of his money on the mortgage, and the entire loss is visited on the purchaser. This must be undo, jtooa as apply- ing only to a case where the original parties arc tofore the court; v/liat view should be taken if the mortgage is a' .signed to other hands, need not here be considered, for the original mortgagee and covenantor is the party now before the court as complainant. I confess I have not been able to find this subject considered in the cases as I had expected, and yet it appears to me GO obvi- ously correct in principle, that I cannot doubt its propriety . The great objection is the difficulty in this court overtaking to scttla 476 CASES IN CHANCERf, Coster v. Monroe Manufacturing Co. unliquidated damages. I know this is a difficulty, and yet in some cases a court of equity will, to effectuate justice, settle damages which are unliquidated. But if this obstacle should be deemed insuperable, still it would constitute no sound objection to the court staying the complainant's recovery on his mortgage until a reasonable opportunity be afforded the defendant to ascer- tain his damages at law, and then allow that amount to be offset. "Wliich of these courses, to ascertain the damages under the covenant, should be pursued, might depend on the peculiar cir- cumstances attending the case, but it would seem to me it should as a general rule be referred to a master, unless the complainant requires a trial at law. If the defendant claims the allowance hero, he should be content with the forms of proceeding in this court, which is by reference to a master. To settle the dama- ges, and thus close the whole controversy in one action, accords well with the familiar principle of a court of equity, of prevent- ing a multiplicity of suits. The fear expressed by the complainant's counsel, that his client might not be protected by a decision here, but be called upon again in a court of law, and by the original parties to the cove- nant, cannot, I think, have any reasonable foundation. This is a covenant to them, their heirs and assigns ; it was made on the same day with, and on the back of the deed, and must re- ceive the same construction as if made in the body of the deed ; and I can view it only as a covenant running with the land to the extent of ttce complainant's interest in that land. The property having been conveyed by regular and lawful convey- ances to the present defendants, they alone are entitled to the benefit of this covenant ; they alone are the party injured ; and having once submitted themselves to the jurisdiction of this court, they cannot, upon any principle, seek for further allow- ance at the hands of another. An actual eviction I do not deem necessary to give a right to the defendant to his damages on his covenant, provided there has been a trial and judgment in ejectment. This, it may be fairly JULY TERM, mi. 477 Coster v. Monroe Manufacturing Co. inferred, was the chancellor's opinion in the case cited by tho counsel for the complainant from 2 John. Chan. 524. Tn that case a purchaser bought under covenants of warranty, and g:ivo his bond arid mortgage for a part of the purchase money. After- wards a suit was brought at law to recover the money on the bond, and an injunction obtained restraining that suit on an al- legation that the title to the land conveyed turned out to be de- fective. The chancellor dissolved the injunction, saying, that before a court of equity could interfere, " a previous eviction or trial at law is as a general rule indispensable." Here has been a trial at law, and no doubt remains on that part of the case. It has been repeatedly held, that the court will not act upon a mere allegation that a, title is defective, it must first be established at law ; and where that is done, and the proof of the proceedings properly made, this court will take notice of them and act ac- cordingly. I refer also, as bearing upon this subject, to Hum- pus v. Plainer, 1 John. Chan. 21 3, and to an anonymous case in 2 Chan. Cases, 19. As between the original parties, then, where a title is shown to be defective in part by a recovery at law, the court will allow the defendant an opportunity to offset the amount of his damages sustained under a covenant, before decreeing a sale of the mortgaged premises under the mort- gage. 2. This view leads me, necessarily, to consider the true con- struction of the covenant entered into by the complainant. The important part of the covenant is as follows : " I, John G. Coster, one of the grantors, in respect of my proportion, being one hun- dred and forty-nine shares out of the six hundred and eighty-two shares, and of the like proportion of the consideration monies, but not in respect of the residue of said shares or of the said con- sideration money, covenant and agree with Francis Mann and John "W. Berry, their heirs and assigns, that I am the owner of the said one hundred and forty-nine shares, and have good right to sell the same in manner within mentioned, and that the sam are free of all incumbrances, and that I will warrant and dofen 473 CASES IN CHANCERY, Costor v. Monroe Manufacturing Co. the title to the within premises to the extent of said shares and no further" The defendants insist that the words in this cove- nant, " to the extent of said shares," although the title to a part only of the premises proved defective, makes the complainant liable to the full amount of his consideration money, and which in this case would cover the whole loss. Such is not, in my opinion, the true construction of this instrument. This would make the complainant liable beyond his own shares, he would clearly answer for the shares of others, when he declares ex- pressly that he covenants only " to the extent of his shares." He does not mean to say any thing more, than that he will protect the purchasers so far as his shares are interested. Had the title to the entire property failed, he must have answered to the full extent, but as it failed partially, he must answer only partially. This is the construction, I think, upon the fair literal interpreta- tion of the words used. But we are not left to so narrow a rule in arriving at the intent of covenants, for it is a settled rule, both at law and in equity, to look to the evident meaning of the par- ties. The intention of the parties is to be carried into effect : Plattfs Treatise on Covenants, 136. That writer says, very properly, " the intention is not to be collected from the language of a single clause in a deed, but from the entire context, and it is immaterial in what part of a deed any particular covenant may be inserted, for exposition must be upon the whole instru- ment, ex antecedentibus et consequentibus, and according to the reasonable sense and construction of the words." The com- plainant did not profess to own beyond a certain number of shades, and his covenant was that he owned those shares, and had good right to sell them, that they were free of encumbran- ces, and to the extent of those shares he would warrant and defend the title of the purchaser. There was no reason why he should go beyond this. There is nothing in the case to sho\7 that he had the slightest interest in the shares of the other grantors, and why should he enter into any obligation as to them ? The fact that the mortgage was made to him for twenty JULY TERM, 1841. 479 Coster T. Monroe Miurafartvrin<; Co. thousand dollars of the purchase money, cannot vary the cast?. Jliat was doubtless the subject of some arrangement between the parties, and can have no bearing upon this question. My attention was properly called, by the counsel of the complainant, to the phraseology used in the covenants in the body of the deed, to show that the grantors had distinct and independent in- terests, and never intended to be bound in any way for each Dther. In the commencement of the covenanting part of tho deed, the language is, " And the said parties of the first part hereby severally, each for himself and his heirs, &c., and. his acts and not jointly nor one for the other, or heirs, &c., of the other, in their respective rights and character, and in regard to their respective proportions, aforesaid, and not one for the pro- portion of the other, covenant, &c." Taking this language w. v th that in the separate covenant made by the complainant at the same time on the back of the deed, which still goes on to staic his proportionate share, and is confined to that, there is no room, in my judgment, to doubt wliat was the intent and meaning of the parties. If four men each own a quarter, and they cove- nant separately for their respective shares, if the whole title is defective, they must respond to the full amount, but if only a part of the property is lost, they are to answer for no more than their share in the part so lost. What, then, was the share of the complainant in that part of the property of which the title proved defective ? The value being ascertained by a compari- son of the part so lost to the purchaser, with the entire property purchased, and dividing such ascertained value into six hundred and eighty-two shares, the complainant is bound for one hun- dred and forty-nine of those shares, and no more. In making this estimate, while the amount paid by the defendant for this land a second time is proper evidence to be considered by the master, it is no way conclusive upon his judgment. lie will x ;c at liberty to vary it if he shall think it right so to do. 1 shall refer the case to a master, to ascertain the amount of damages which the complainant is answerable for to the dc- 480 CASES IN" CHANCERY, Coster v. Monroe Manufacturing Co. fondant on his covenant, in conformity with the construction here given to that instrument, and to report the amount due the complainant on his bond and mortgage, after deducting such amount therefrom, and that he take the evidence down in wri- ting, and send up the same to this court. Order of reference. CITED in Hopper v. Luikins, 3 Gr. Ch. 156 ; Gousc v. Boyle*, Id. 218 ; Glenn's Ad. v. "Whipple, 1 Beat. 51. THOMAS SALTER and others v. JONATHAN D. WILLIAMSON and WILLIAM D. WILLIAMSON. The jurisdiction of a court of chancery over the settlement of accounts of executors and administrators, is too well established at this day to admit of question. The authority conferred by statute upon the orphan's court, in relation to tho Bcttlem ntof accounts of executors and administrators,. was only a cumu- lative remedy afforded to parties, and was never intended to deprive the court of chancery of its jurisdiction. The court of chancery and the orphan's court have on this subject a concur- rent jurisdiction. T7here there nro LO speciiil reasons for going into equity, the orphan's court is the proper tribunal, end should be selected by all parties for settling the accounts of executors and administrators. The fact that a i executor or administrator has exhibited his account in the orphan's court, and that steps have been taken towards a finalsettlement of the account ia that court, will not deprive the court of chancery of its juris- diction over the account. Until tho final decree of the orphan's court, there is no legal impediment to prevent the court of chancery taking cognizance of the case. But where an account has bemi exhibited in the orphan's court, and especially if considerable advance has been made towards tho adjustment of the ac- count, a court of equity will not interfere unless there ctist some substan- tial ro i on for invoking its aid. THE bill states, that Matthias Williamson, late of the county of Essex, was in his life time, and at the time of his death, JULY TERM, 1841. 401 Suiter et aU v, Williamfloii, udm'r. seized and possessed of considerable personal estate : that the said Matthias "Williamson died intestate, on or about the 20th day of March, 1836, leaving the complainants and tho defend- ants, his children and only heirs at law and next of kin, him surviving. That eoon after the death of the said intestate, C. L. \V., one of the complainants, and J. D. W., one of the defendants, obtained grant of letters of administration from th* surrogate of the county of Essex, upon the estate of said intes- tate ; and that at the term of June, 1837, the orphan's court oi the county of Essex revoked the letters of administration grant- ed to the said 0. L, W., by means whereof tho sole administra- tion of the estate of the said intestate devolved upon the said J. D. "W. ; who by virtue of the said letters of administration possessed himself of the personal estate and effects of the said intestate, greatly more than sufficient to satisfy his just debts and funeral expenses* That the said W. D. W. was advanced by the eaid intestate in his life time to a very considerable amount, and greatly exceeding the whole personal estate of tho said intestate at the time of his death : and that the said "W. D. . "W\ was indebted to the said intestate at the time of his death, beyond his proportion of the intestate's personal property as one- of the next of kin, and that the intestate had paid large sums! of money for the said W. D. W. which remained due to the in- tertatc at the time of his death. That in the inferior court of common pleas at the county of Essex, at the term of June, ISIS,, the intestate recovered a judgment against the said W. D. "W.. for two thousand live hundred dollars, which still remains unpaid and unsatisfied, arid wliich became, at the death of the intestate,, a lion upon the portion of the real estate of the said intestate to- which the said W. D. "W. became entitled as one of the heirs at law of the said intestate. That in tho year 1837 the said AV. D. "VV. sold and conveyed to tho said J. D. W. all his right, title and intescst in the real and personal estate of the said intestate, fora sum very inadequate to the value of one seventh of the real and personal estate of tho said intestate, the proportion to which the said W. D. W. was entitled ; and that the said J. D. "W., at the 62 482 CASES IN CHANCERY, Salter etal. v. "Williamson, ndm'r. time he made the said purchase and accepted the conveyance and assignment of the said real and personal estate, had full "knowledge of the existence of the said judgment against the said TV. D. TV. and the lien of said judgment on the said real estate, and of all the other facts and circumstances above set forth. That as soon as the knowledge of the said purchase by J.D.W. from TV. D. TV. came to the knowledge of the complainants, they by their attorney applied to the said J.D.TV. and earnestly solicited him, as the administrator of the said intestate, to cause such legal proceedings to be instituted on the said judgment against the said TV. D. TV. as might be necessary to recover from him the amount due from him to the intestate, or else that the said J. D. TV. having purchased all the interest of the said TV. D. TV. in and to the real and personal estate of the intestate, would account to the complainants in the amount due from the Baid TV. D. TV. to the intestate, at least to the amount of the value of such interest so purchased, deducting his own share thereof ; that instead of so doing, the said J. D. TV. has taken no measures since the death of the said intestate, by execution or seire facias, to enforce the payment on the money due on said judgmentjOr the lien created thereby, but since the said purchase by the said J. D. TV. of the said TV. D. TV., at the term of Sep- tember, 1837, of the supremo court of New-Jersey, the said J. D. TV., as administrator as aforesaid, caused to be instituted against the said TV. D. TV. an action of debt upon the said judg- ment in favor of the said intestate, against the said TV. D. TV., and such proceedings were thereupon had that the said cause is pending at issue and noticed for trial at the next Essex circuit; the object of which proceeding, on the said judgment, the com- plainants are advised, is to relieve the said J. D. TV. and the es- tate purchased by him from the said TV. D. TV. from being an- Bwerable for said judgment. The bill insists that the judgment recovered by the intestate, as aforesaid,against the said TV.D. TV. having become upon the death of the said intestate, a lien upon the real estate of said intestate which descended to the said TV. D. TV., the said judgment should be established and declared to JULY TERM, 1841. 483 Salter et al. v. Williamson, adm'r. be still a subsisting lien thereon ; and in case the said lien has been lost or destroyed, that it has been through the gross negli- gence of the said J. D. W. and^by collusion with the said W. D. W., and that the said J. D. W. ought to be charged with the amount due on said judgment, or else that the proceeds ar'sing from the sale of the real estate, advertised to be sold as hereafter stated, which descended from the intestate to the said "W. D. W. as aforesaid, may be declared to be held in trust to satisfy what is due on said judgment. The bill further charges, that the said J. D. "W., as one of the heirs at law of the said intestate, applied to one of the jus- tices of the supreme court of this state for the appointment of commissioners to divide the real estate of the said intestate ; that such commissioners were accordingly appointed on the 17th of February, 1838 ; that a report has been made by said commis- sioners to the said justice that the said real estate could not be divided, whereupon the said justice made an order to sell the same at public auction ; and that the said commissioners, by vir- tue of said order, advertised the same for sale, and that the said sale is advertised to be held on the 28th day of July instant. That the real estate of the intestate consists of various dwelling- houses and farms, and might be sold to a great advantage if sold on reasonable and accommodating terms and credit, but the com- plainants believe that if the said real estate is sold in the present state of depressed prices and pecuniary embarrassments of the country, it must be sold at a great sacrifice ; and that the com- plainants, or most of them, have not the means of becoming purchasers themselves of any considerable part of the said real estate. That the order for the sale of the said real estate, herein before referred to, was made in pursuance of an act of the legis- lature of the state of New-Jersey, entitled, "An act supplemen- tary to the act, entitled, an act for the more easy partition of lands held by coparceners, joint tenants and tenants in common, and the act entitled, an act to ascertain the power and authority of the ordinary and his surrogates, to regulate the jurisdiction of the prerogative court, and to establish an orphan's court in the 484: CASES IN CHANCEKr, Salter et nl. v. Williamson, adm'r. several counties of this state," passed the 7th day of February, 1816 ; by the fourth section of which act it is enacted, That no sale or conveyance of any tract or tracts of land or real estate made by virtue of this act, shall impair, or in any wise affect the rights and interest of any person or persons therein, other than the persons being or claiming to be coparceners, joint tenants 9r tenants in common in the same. That although the complain- ants T. S. and F. B., in right of their respective wives, are ten- ants in common with others in the real estate so advertised to be sold, yet the complainants are advised and insist that the estates and interests of S. II. S. and M. B., the wives of the said T. S. and F. B. respectively, are not liable to be sold by the said com- missioners and converted into personal property, against their will, and that they cannot be deprived of their inheritance with- out their consent, which they have not given and now refuse to give ; and that their rights are also protected by the sixth section. of an act of the legislature of the state of New-Jersey, entitled, "An act granting relief in certain cases against collusive judg- ments and wrongful alienations of land," passed the 2d day of March, 1798. That the said J. D. W. and the said commis- sioners, by virtue of the order for sale made as aforesaid, are proceeding to sell the said real estate, and will sell the same un- less restrained by this court r and insists that no sale of the said real estate ought to be made without saving the rights and estates of S.II.S. and M. B. in and to the real estate descended to them from their father, and without first deciding whether the judg- ment recovered by the intestate against the said W.D.W. is or is not a subsisting lien on the real estate of the said intestate de- scended to the said W. D. W. as aforesaid, and how the money due on said judgment should be paid and satisfied. t That since the death of the intestate the eaid J. D. W. has- been in the re- ceipt of the rents and profits of the whole or a very considerable part of the Teal estate whereof the said intestate died seized, and has never accounted to the complainants therefor, and that he has also the title deeds of the said estate, which the complainants pray he may be directed to produce. Prayer tliat the said J J). JULY TERM, 1841 485 Salter et al. v. Williamson, adra'r. W. and the said commissioners may be restrained by injunction f mm selling any part of the said real estate until the further or- der of the court : that the judgment recovered by the intestate in his life time against the said "W. D. "W. may be decreed to be a lien on the share of the real estate of the said intestate which upon his death descended to the said W.D.W., or that the said judgment may be satisfied out of the proceeds of the sale there- of, or that the said J. D. W. may be charged with the amount due on said judgment : that the estates and interests of S.H.S. and M. B. may be established, and decreed not liable to be sold by the said commissioners : that partition be made of all the real estate whereof the said intestate died seized, among his children and heirs at law, according to the practice of this court, and all necessary conveyances be executed for carrying such partition into effect : that an account may be taken of the rents and profits of the said real estate which have been received by the said J. D. TV., or might have been received by him without his wilful de- fault, and payment decreed of what shall be found due from him on such account to the complainants, according to their respect- ive shares and interests in the same; and that the complainants may have such other relief, &c. Upon filing the bill an injunction issued, pursuant to the prayer of the bill. Separate answers were filed by the defendants. The answer of J. D. W. admits that M. W. died intestate, at the time stated in the bill of complaint, seized and possessed of considerable rcaJ and personal estate, and leaving the complainants and defendants his children and only heirs at law and next of kin him surviving : that administration upon the estate of the intestate was granted by the surrogate of the county of Essex to this defendant and C. L. W.: that the letters to the said C. L. "W. were subsequent- ly revoked, and the sole administration vested in this defendant : that upon the settlement of the accounts of the said C. L. W. as administrator, there was found in his hands a balance of two thousand three hundred and fifty-nine dollars and sixty-one cents, which exceeds his distributive share of the personal estate 486 CASES IN CHANCEKY, Salfcer et al. v. Williamson, adm'r. of the intestate, and which, although demanded, he refused to pay over to this defendant. That this defendant exhibited his accounts as administrator as aforesaid, for settlement, in the or- phan's court of the county of Essex, and exceptions being filed thereto, it was referred to auditors, who reported a balance in this defendant's hands of twelve thousand four hundred and sixty- five dollars and sixty-five cents ; from which one thousand six hundred and fifty dollars ought to be deducted, that amount hav- ing been twice charged against this defendant by the auditors in their report ; which leaves in this defendant's hands the sum oi ten thousand eight hundred and fifteen dollars ancl sixty-five cents, to be distributed to the next of kin of the intestate, ac- cording to law, to one seventh of which this defendant is entitled as one of the next of kin. Admits the indebtedness of "W. D. "W. to the intestate, as stated in the complainant's bill, and that the amount due from the said W. D. "W. to the intestate at his death exceeded the share of the said W. D. "W". in the intestate's estate : that a judgment was recovered by the intestate in his life time against the said W. D. W. for two thousand five hundred dollars debt : that this defendant was advised, that inasmuch as the said judgment was recovered in the common pleas of Essex county, the same was not a lien upon that part of the real estat.) of the intestate which descended to the said W. D. "VST. which was not situated within the said county; and that, by the advice of counsel, he caused a suit to be instituted in the supreme court upon said judgment, in order to create a lien upon the real estate of the said "W. D. W. not within the said county, which is still pending. Denies that the said suit was instituted to relieve the share of the said W. D. W. from the lien of said judgment. Admits the sale by W. D. W. of his share of the real and per- sonal estate of the intestate to this defendant, on or about the 28th day of July, 1837, for which this defendant gave his bond for five thousand dollars, conditioned for the payment to the said "W". D. "W. of twenty-five dollars per month during his life, an:l on the death of the said "W. D. W. fifteen hundred dollars, if guch balance remained in the hands of this defendant, to bo di- JULY TERM, 1841. 437 Salter etal. V. Williamsou. adm'r. vided among the children of the said "W. D. "W.; which consid- eration was more than adequate to the value of said share ; but that, owing to dissatisfaction expressed by some of the complain- ants in regard to the said purchase, this defendant, on the 18tl % day of June, 1838, executed to the said W. D. W. a reconvey ancc of the said share, upon which this defendant's bond, given for the purchase thereof, was delivered up and canceled. Denies that the said purchase was made with a view of relieving the said share from the lien of said judgment, which lien this de- fendant has always admitted and still admits. That the said commissioners can only sell the said share subject to the lien of the said judgment ; and that the said commissioners would 1x5 bound to pay out of the proceeds of the sale of said share, tho amount due on said judgment, to the administrator of the said i.itestate, to be by him distributed among the next of kin, or that the said commissioners would become trustees for the said next of kin, and be bound to pay them their respective shares of the said proceeds. Admits the application by this defendant, as one of the heirs at law of the said intestate, and as a tenant i.i common of the real estate whereof he died seized, to havo p vrtitjon made thereof, and insists upon the right of this defend- ant to have such partition or sale made, and that the consent of the said S. EL. S. and M. B. is not necessary to the making such partition or sale, and that the said commissioners arc authorized by law to sell the said real estate, and to account to the said S. II. S. and M. B. and their respective husbands, for their respec- tive portions of the proceeds of the said sale. Denies that thia defendant has a large portion of the personal estate of tho said intestate, or of the rents and profits of his real estate accrued since his death, in his hands unaccounted for. The answer of W. D. W., the other defendant, admits that ho and the said intestate had large dealings in the intestate's life time ; that the intestate recovered the judgment for two thousand live hundred dollars, specified in the bill of complaint ; but tliat upon a fair settlement of their accounts it would appear that tlio said judgment was satisfied and a balance due to thia defendant. 488 CASES IN CHANCERY, Saltor ot al. v. .Williamson, aclm'r. Denies that any advancement was made to this defendant by the intestate in his life time, but insists that all their dealings were regular business transactions, and that the whole claim of the intestate against this defendant has been paid and satisfied. Ad- mits the sale and conveyance by this defendant of his share in the personal and real estate of the intestate, to the said J. D. W., but insists that the same was bona fide and for a valuable con- sideration, and that the said share has since been reconveyed to this defendant, as stated in the answer of the said J. D. "W. The cause was heard upon the bill and answers ; the only question submitted for the consideration of the court, being, whether the defendant, as administrator, could, under the cir- cumstances of the case, be called upon to account in this court. E. Vanarsdale, for complainants. 0. S. Hoisted, for the administrator, one of the defendants. The other defendant consenting that a reference be made to a master to settle the accounts. Cases cited by the complainant's counsel. Simson v. Hart, 14 John. 7?. 77; 5 JoJin Rep. 167-8 ; 4 Griffith's Law Beg. 1258; Hoisted 's Dig. 296; \ Eq_. Gas. Abridged, 12,5. 9; Dulwich College v. Johnson, 2 Vernon, 49 ; 1 Southard, 191 ; 1 Maddocfc, 584 ; Jeremy's Eq. 504 ; 9 Wheaton, 542 ; Man- uscript Opinions of Chancellor Williamson in Garrdbrant v. Lawrence, and Burtis et al v. Adm'rs of Hopkins, and of cJiancellor Vroom in King- v. Etfrs of JBcrry* THE CHANCELLOR. Matthias Williamson died in March, 1836, intestate, possessed of a considerable personal and real estate, and letters of administration upon that estate were grant- ed by the surrogate of the county of Essex, to* Charles L. "Wil- liamson and Jonathan D. Williamson, two of his sons. Subse- quently, the letters granted to Charles were revoked, and tho sole administration devolved upon Jonathan IX Williamson. JULY TEKM, 1841. 480 Salter et al. v. Williamson, adni'r. The intestate left seven children, three sons and four daughters. This bill is filed by five of the children, as the heirs at law and next of kin of the intestate, against the administrator, for a set tleraent of the accounts of the estate and for distribution : and William D. Williamson, another of the sons, not joining in the action with the complainants, is made a defendant. To this bill the administrator has put in his answer ; and the sole question to be settled at this time is, whether the court will order the ac- count to be taken. The jurisdiction of a court of chancery over the settlement of accounts of executors and administrators, is too well established at this day to admit of question. In many cases it is necessary and important that this power should be exercised. The author- ity conferred by statute upon the orphan's court on this subject, was only a cumulative remedy afforded to parties, and was rev er intended to deprive this court of its jurisdiction. There are no words in the act showing any such intention in the legislature. This court and the orphan's court have on this subject a concur- rent jurisdiction, and the object of vesting this power on settle- ment of accounts of executors and administrators in the orphan's court, no doubt, was, to afford in all ordinary cases a more easy, expeditious, and less expensive mode of closing up estates. Where there are no special reasons for going into equity, the or- phan's court is the proper tribunal, and should be selected by all parties for settling the accounts of executors and administrators. That there are cases constantly occurring, where the limited au- thority of that court is entirely inadequate to reach the many difficulties that arise on the settlement of estates, is within the experience of all. This court has, therefore, always maintained its power to take cognizance of cases of this character, to finally settle the accounts of executors and administrators, and to order distribution among those entitled. The manuscript opinion of chancellor Williamson, in the case of Burte andotfiera v. Tfte Adm'rs of Hopkins, fully establishes this view of the question, and the same doctrine is recognized by chancellor Vroom, in the case of King v. The Etfrs of Berry. Indeed, cases of this 63 490 CASES IN CHANCERY, Saltor et al. v. Williamson, ndm'r. character are continually arising in tlie court. Even where a decree lias finally passed the orphan's court, it may be impeach- ed in this court on the ground of fraud. But I do not suppose it was the serious intention of the de- fendant's counsel to dispute this proposition, but rather to object to an interference in this particular case, after the progress that has been made in the orphan's court. The administrator pre- 82nted his accounts for settlement in that court ; they were refer- red to auditors, who, after a tedious examination, made a report on them, and that report is now standing upon exceptions filed by the complainants or some of them. Until the> final decree of the orphan's court, there is no legal impediment in the way of this court taking cognizance of the case, if they think proper so to do. If the mere fact that an administrator has selected the orphan's court, and taking steps there towards gettinghis accounts adjusted, is to deprive this court of all power and authority in the case, then it must resolve itself into a mere scramble for ju- risdiction. This cannot be the test, but as the jurisdiction of the two courts is concurrent, if one of the parties has resorted to the orphan's court, and especially if considerable advance (as in this case) towards the adjustment of the accounts 'has been made, then, I think, this court should not interfere unless there exist some substantial reason for invoking the aid of a court of equity. It would be a great hardship, after accounts are near being closed, perhaps much time and trouble expended in their adjustment, to allow a party at his mere pleasure to transfer the jurisdiction from that court to this. The only true question, then, in this case is, have the complainants laid a proper foundation for com- ing into this court? After a careful examination of the bill and answer, and re- flecting upon the situation in which these parties are placed, I have come to the conclusion that there are in this case good rea- fonsfor continuing the cause in this court. "With the limited powers of the orphan's court, it would be extremely difficult, if not impossible, to adjust the many questions that arise respecting this estate. The estate itself is large, the inventory amounting JULY TEEM, 1841. Suiter ot ul. v. Williamson, adm'r. to upwards of seventy thousand dollars. All the members of this family, except the administrator, desire the accounts settled here ; for although "William D. "Williamson, one of the brotherr , was made a defendant, yet on the hearing he by his counsel join- ed with the complainants in this wish. There are many chargei in the bill, as to which the complainants are entitled to a dfe- covery from the administrator. The administrator was the con- fidential agent of the intestate in his life time, was in the habit of receiving money for him, transacted much of his business, and was in fact in many instances the only person who kne.Tr the true situation of the intestate's business. lie has conflicting accounts with the estate, and seeks compensation for his agency, and is so interwoven with it as to render a disclosure on his part indispensable. The bill also charges, that advancements were made by the intestate to his children in his life time, and amorij the rest to the administrator, and that sundry checks, which the administrator insists are barred by the statute of limitations, wcro advancements made to him, and that the statute does not apply to a case of that character. Nor do I think it for the interest of (he administrator that the cause should be dismissed from this court. Ho is interested to make disclosures showing the true state of the accounts between him and his father ; he should desire this for the sake of giving to his brothers and sisters that reasonable satisfaction which they are entitled to. The answer lias, I make no doubt, already removed several wrong impres- sions. So far as the accounts have undergone investigation be- fore auditors, the labor will not be entirely lost, as it cannot fail to expedite the examination before the master. Let a decree be taken in the usual form, referring the accounts to a master. CITED in Van Mater v. Sicller, 1 Stock. 433 ; Black ex. r. FAita/J, Id. 585 ; Claris v. Johnston, 2 Stock. 288 ; Frey v. Dtmarat, 1 C. E. Gr t 239; Search'* Ad. v. ScarcVt Ad. 12 C. E. Gr. 140. 492 CASES IN CHANCERY, The TRENTON BANKING COMPANY v. ZACHARIAH ROSSELL, Trus- tee of ANN E. WOODRUFF. Where an issue is awarded by the court of chancery, to be made up in the supreme court, the transcript and postea must be returned to the court awarding the issue, and not to the supreme court. On motion for a new trial of an issue at law, the state of the case, and histo- ry of the trial ordered to be prepared by the solicitor of the party applying for the rule, and submitted to the solicitor of the adverse party for his ex- amination, and in c iso the solicitors are unable to agree, the case to be set- fed by the judge before whom the issue was tried. AT October term, 1838,* a feigned issue was awarded in this cause, to ascertain the fact, whether Thomas L. "Woodruff ever paid to the estate of Israel Carle, in whole or in part, a certain mortgage given bj the said T. L. "W. to the said Israel Carle. The issue, made up in the usual form in the supreme court, was tried in the circuit court of the county of Mercer, at June term, 1841, and a verdict found in favor of Z. Rossell, trustes of Ann E. Woodruff, viz. that the said mortgage had not been paid bj the said T. L. W. The record and postea since the last term had been returned to this court, together with the usual certificate of the judge before whom the cause was tried, that lie was satisfied with the verdict ; and the cause was set down for hearing at the present term, by the solicitor of Z. Rossell, trustee, &c. The cause being moved, J. Wilson, on behalf of the complainants, resisted the hear- ing. He insisted that the cause was not properly before the court : that the issue had been made up in the supreme court, and that the postea should be returned to that court, that the par- ties might have an opportunity of applying there for a new trial. A party dissatisfied with the verdict upon a feigned issue ordered by a court of equity, is entitled to apply for a new trial either at law or to the court which awarded the issue : 1 Arch. Prac. * See ante, page 117. JULY TEEM, 1841. 493 Trenton Banking Co. v. Rossell, trustee, Ac. 317; Tidd, 805; Doe v. Eoe, 1 Johns. Cos. 402; Den v. Fen, 1 CainJs E. 487. Watt and IT. W. Green, contra, cited Vanalst v. Hunter, 5 e707m. C%) authorize 534: INDEX. any further process to enforce a decree for the alimony and main- tenance of the wife, and the main- tenance of the children, than a eequestrutioh ? Qu. '""* *""" id. 6. Where, upon a decree for a di- vorce, the children are placed by the court under the charge of the mother, the allowance for their maintenance will be such that the children may be fully maintained in a manner corresponding with the condition in life of the father. The court, in pbicing tho children under the charge of the mother, mean to impose upon her no bur- den of a pecuniary character, ib. 6. It seems that this court has the power at any time, on a change of circumstances, to vary the al- lowance for alimony, by increas- ing or diminishing it. ' ib. 7. it is not necessary that actual violence be shown, to entitle the party to a divorce on the ground of extreme cruelty . Graecen v. Graecen, ' 459 8. Isolated cases of wrong or cruel- ty of long standing, ou the part of the husband, will not entitle the wife to a divorce, especially where a different course of treat- ment has since been pursued. But evidence of such acts are competent and proper, in con- nexion with more recent acts, to show a series of wrongs and in- juries on the part of her hus- band. ib. % 9. A notice served by the husband on the wife, after the institution of proceedings against him for a divorce, requesting her to return, can avail "othing in his de- fence ill Vide PLEADING, II. 13, 14, 15. CO DOWEJR. Vide JURISDICTION, 1. MORT- GAGE, 10, 23. E. ELECTION. 1. Where a sale is directed to be made of lands, and the same per- son is entitled to the lands that would take the money in case of a sale, and the person entitled elects to take land, a court of equity will not disturb that elec- tion or compel a sale. Gest v. Flock, : . ..V."108 2. The giving of a mortgage by the person entitled, is a clear election on his part to take land. ib. ELIZAbiiTH-TOWN & SOM- ERVILLE RAILROAD CO. Vide COBPOEATIONS. INJUNCTION, 7 EQUITY OF REDEMPTION. Vide MORTGAGE., Ill EVIDENCE. 1. The presumption of law is in favor of testamentary capacity, and ho who insists on the contra- ry has the burden of proof, except where insanity in the testator has been shown to exist at a time previous to the execution of the will ; in that case the onus is shifted, and the party offering the will is bound to show that it waa executed at a lucid interval. Whitenack v. Strykcr, 8 2. The time of the execution of the will is the material period to which the court must look to 'ascertain the state of mind of the testator ; nnd although it is com- petent evidence to show tho state of the testator's mind at any time previous or subsequent to the execution of the will, yet such INDEX. 533 proof is always liable to bo over- come by satisfactory evidence that the testator, at the time ho exe- cuted the writing, had the poses- sion of his faculties ib. 8. The testamentary witnesses, their opinions, and the facts they state as occurring at the time of the execution of the writing, uro to be particularly regarded by the sourt. ib. 4. The opinions of witnesses other v than the testamentary, as to the capacity of the testator, are to be received as the slightest kind of evidence, except so far as those opinions are based on facts and occurrences which are detailed before the court. ib. 6. Witnesses are to state the facts ; " and it is the business of the court, from those facts, to pronounce the opinion, upon settled rules and guides, whether the testator is competent or not. H>. 6- Upon a question of capacity, an inquisition of lunacy is competent but not conclusive evidence, ib. 7. The circumstances, that the com- plainant, on the dissolution of the firm, continued the business on his bwn account ; that he sold out the stock on hand at tiie dis- solution, in the course of this business; that the complainant, after the dissolution, said that the store belonged to h:m ; and that, from the manner of the salo of the stock on hand, it was mani- fest lie never could account; are not sufficient to establish the agreement, that on the dissolution of the partnership the complain- nant was to pay nil the debt* of the firm, or to sustain the allega- tion of the answer. Dickey v. Allen, 40 8. The allegation, that one partner agreed to pay all the debts of tho firm, should be ck-urly establish- ed, ib. 9. The maker of a promissory note, is a competent witness to prove it usurious. HoiMlF$ /x'rt v. Auten, 44 "0. On a bill filed against 0. and B. as partners, the declarations of C. are not admissible against B. to prove the partnership. The de- claration of one partner is only admissible against the other, after the fact of partnership is estab- lished. Flanagin v. Champion, 5 L 11. The declarations of one partner, made after the dissolution of the partnership, are not admissible to charge his copartner. ib. The mere opinions of witnesses, (other than the testamentary,) un- supported by facts are entitled to no weight. Lowe v. Williamson, 82 12. A husband cannot oe a witness for his wife on a question touch- her separate estate. Trenton Banking Co. v. Woodruff, 117 '3. Where the defendants in a cause, by their answer, set up a canceled mortgage as a su bsist- ing lien upon the mortgaged pre- mises mentioned in the bill of complaint, it is incumbent on them to show that the money was not paid, and that the cancellation was made wrongfully. The com- plainants arc not bound to prove the fact of payment. ib. 14. The admissions of a party on a charge of adultery, are not, us a general rule, to bo received with much faith. They are competent proof of the charge only when connecied with otlier evidence. Miller v. Miller. 18'J 536 INDEX. 15, It is not necessary that it shoulu be positively proved that a con- fession of guilt by the wife was raado through fear ; it may be in- ferred from the general conduct of her husband toward her. ib. 1C. Upon a bill for specific perform- ance of a written agreement, it is competent for the defendant to prove parol declarations made at the time of the contract, though not incorporated in the agree- ment, in order to rebut tho com- plainant's equity. Miller v. Chetwood, 199 17. The admissibility of such evi- dence depends upon the purpose for which it is introduced. It is admissible for the purpose of de- feating the specific performance, but will not be received with a view to having the contract per- formed with an abatement of the price. ib. 18. A mere trustee may always be examined as a witness by a co- defendant. If it turns out upon the hearing that he has an inter- est in the cause, his testimony will be excluded. Neville v. De- meritt, 321 19. The admissibility of the evi- dence depends on the question, whether the witness has any in- terest beyond that of a mere trustee. If he has any individu- al concern in the case, the evi- dence is incompetent. ib. 20. Tho declaration, by a witness, of his intention to pay a sum of money rather than the party should lose, will not render the witness incompetent, unless he be legally responsible for the money. ib. l\. The obligor of a bond will not be admitted to prove by parol, that, at the time of giving tho bond, it was agreed that tho obligee should look to another source for payment, and that tho obligor should not bo personally liable. Chetwood v. Britan, 43 8 22. Whatever the contracting par- ties reduce to writing, must bo considered as embodying their understanding at that time. If by fraud, or mistake, or accident, the paper should not contain tho true agreement or the whole agreement, it may be supplied by parol. ib. 23. Evidence will not be admitted of what took place at the time of executing a written agreement, to add to or vary the contract. A written agreement cannot bo varied by parol evidence, unless in cases where there is a clear subsequent and independent agreement, varying the former, ib. 24. But it seems that the objection to varying a written agreement by parol, rests merely on the rules of evidence. If a defendant, by his answer, admits the charge in the bill, that at tho time of executing a bond, it was verbally agreed that the complainant should not be personally liable for tho money, will not equity give relief against a recovery on the bond ? Qu. ib. 25. Proof that part of a loan was advanced in goods or stock, will not throw on tho opposite party the burthen of proving the va- lue of such goods or stock. The person charging tho usury must prove, not only that tha goods or stock constituted part of tho loan, but also that they were put off at a price beyond tlich value. Gromcnor v. Flax and Hemp Manufacturing Co. 453 INDEX. 537 EXCEPTIONS. Vide PRACTICE IV. EXECUTION CREDITOR. Vide DEBTOB AND CKEDITOE. EXECUTORS AND ADMINIS- TRATORS. 1 . Tho decree of the orphan's court upon a joint account rendered by executors, admitting the account to settlement, docs not change the joint liability of the executors. They are jointly liable before as well as after the decree. Goble v. Andruss, 66 2. A settlement in the orphan's court by two executors, and a decree establishing the amount in their hands, are not conclusive that each executor, at the time, had half of the estate. -ib. 8. Such decree only ascertains the amount due, leaving the liability the same as before, joint, and leaving wholly undetermined and open as between the parties them- selves, what part of the estate each executor had. ib. 4. The condition of an administra- tion bond, under the statute of New-Jersey, is not restricted merely to the rendering of an ac- count, but is designed to secure a faithful administration ' of the estate. Hasten v. Durling's adm'r, 133 . It is a part of the condition of such a bond, that the administra- tor shall faithfully apply the as- sets to the payment of the debts; and the non-payment of a judg- ment obtained against the admin- istrators may be assigned aa a breach of the condition. ib. 6. After the return of nullo bona upon an execution aguiost the administrators, the administration bond is forfeited, and the surety has a right to satisfy the execution with or without suit upon the bond. jj. 7. Such payment is not voluntary, and the party making it may re- cover it back from the party for whose benefit it was made. ib. 8. A surety in an administration bond, having satisfied an execu- tion against the estate of the in- testate, becomes a creditor of the administrators in their own right, having paid money for their joint account. His remedies against them should be exhausted, before this court can interfere in his be- half to reach the assets of the intestate. J. 9. Where a testator by his will de- vises all his real and personal estate to nine persons, named in the will, in trust for the purposes therein expressed, and appoints the same persons by name execu- tors, with full power to them and to a majority of them, and to a majority of the survivors of them, to sell his lands and to exe- cute deeds for all lands contract- ed to be sold by the testator in his life time ; if one of the execu- tors dies in the life time of the testator, and all the others except one refuse to act, the acting exe- cutor is authorized under the statutes ot New-Jersey to convey the land. Coykendall v. Ruther- ford's ex'x, 860 10. The jurisdiction of a court of chancery over the settlement of accounts of executors and admin- istrators, is too well established at this driy to admit of question. Salter v. Williamson, 480 11. The authority conferred by sta- tute upon the orphan's court, in 538 INDEX. relation to the settlement of ac- count's of executors and admin- istrators, was only a cumulative remedy afforded to parties, and was never intended to deprive the court of chancery of its juris- diction, ib. 12. The court of chancery and the orphan's court have on this sub- ject a concurrent jurisdiction, ib. 13. Where there are no special reasons for going into equity, the orphan's court is the proper tribu- nal, and should be selected by all parties for settling the accounts of executors and administra- tors, ib. 14. The fact that an executor or administrator has exhibited his account in the orphan's court, and that steps have been taken towards a find settlement of the account in that court, will not de- prive the court of chancery of its jurisdiction over tho account. Until the final decree of the or- phan's court, there is no legal im- pediment to prevent the court of chancery taking cognizance of the case. ib. 15. But where an account has been exhibited in the orphan's court, and especially if considerable ad- vance has been made towards the adjustment of the account, a court of equity will not interfere unless there exist some substantial reason for invoking its aid. ib. Vide ACCOUNT. PLEADING, I. 6. HUSBAND AND WIFE, 6, 7. F. FEIGNED ISSUE. Vide ISSUE. FEME COVERT. Vide HUSBAND AND WIFE. FRAUD. 1. On a proceeding against a com- pany, under the sixth section of the act entitled "An act to pre- vent frauds by incorporated com- panies," passed February 16th, 1829, the great and primary fact to be ascertained, is the insolven- cy of the company. That lays at the foundation of the whole pro- ceeding, and unless satisfactorily made out, the court has no right to interpose. Oakley v. Pater - 173 2. The provisions of tho seventh section of the act, are not to be understood as restricting the court to any particular mode of proof in ascertaining the insol- vency of a bank, but as super- adding certain tests which shall in all cases constitute full evidence of such insolvency. ib. i 3. A bank may be insolvent, with- out any of the events happening which are stated in tho seventh section of tho act; and although some of those marks ol'insolvency may have occurred, yet the bank muy, upon further proof, be shown to be sound and safe. ib. 4. The court may act upon the tests given in this section, or they may go further and look beyond them, if they see reason to do so, in coming to a satisfactory conclu- sion as to tho solvency or insol- vency of the company. ib. 5. A bank without funds for the redemption of its notes, and de- pending on individual resources and exertions to provide funds for the redemption of its notes, rather than upon the immediate ability of the institution itself, is insolvent within tho true intent and meaning of tho act. ib. INDEX. 639 C. The act requires that the hank should he at all times prepared to discharge all demands presented for payment ; and it can never be freed from the charge of insolven- cy upon any supposed ability of realizing from its means enough to pay its debts at a future day. ib. Y. The court will refuse its aid, not merely to a party who frau- dulently misrepresents his title, but also to one who remains si- lent when duty, candor and fair dealing require liim to speak out. oss v. Elizabeth-Town and, Som- ervillo Railroad Co. 422 Vide DEED, 4. HUSBAND AND WIFE, 3, 4. G. GUARDIAN AND WARD. 1. "Where the real estate of an infant is sold by the guardian, (by virtue of an act of the legislature,) the guardian, or her representatives, may retain so much of the money arising from the sale, to satisfy n claim of the guardian in her own right, as the land would have been liable for in case it had not been sold. SnowhilVt Heir's v. Snow- JiiWs Ex'rs, 80 2. By the twenty-eighth section of the act of the 13th of June, 1820, (Itev. Laws, 784,) the mother or next of kin are given a clear pre- ference, and are entitled, if they desire it, to the appointment of guardian for minors under four- teen years of age, and cannot be passed by except upon some satis- factory objection made and sus- tained before the court. Itcadv. Drake, IS .Vide HEIR. H. HEIR When an act of the legislature authorizes a guardian to make sale of the real estate of his ward, and directs tha proceeds out of the sale to be put at interest for the benefit of the ward, without making any provision for the disposition of the fimJ in the event of the infant's deatli ; upon the death of the infant, intestate, the proceeds of such sale will po to his heirs at law, pursuant to tho statute regulating the descent of real estate, and net to his next of kin. SnowhilVa Rein v. Snow- Mlft Ex'rs, , 30 Vide ASSIGNMENT AND ASSIGNEE, 1 . WILL. 5, 6. HUSBAND AND WIFE 1. The choses in action of the wife survive to her on the death of her husband, unless he reduce them into possession during his life. SnowhilPs Heirs v. Snow- hill's Etfri 80 2. What will constitute a reducing of a chose in action of the wi:'e into possession, so as to deprive her of the claim as survivor? Qu. ib. 3. Where a bond and mortgage are bequeathed to a feme covert, for her use, free from the debts or control of her husband, and the husband of the legatee, being the obligor in tho bond, and also an executor in tho will, cancels suc'.i bond and mortgage without pay- ing tho same, such cancellation is a gross fraud, not only upon the estate committed to his charge, but also upon the rights of tho wife, against the effects of which this court will interfere for her protection. But it seems that in 540 INDEX. such case, when the testator had by the very act of constituting his debtor an executor, placed it in liis power to practice a fraud upon innocent parties, the court would nuc interpose to protect the rights of a wife, by establish- ing the cancelled mortgage, to the prejudice of subsequent mortga- gees without notice. Trenton Banking Co. v. Woodruff. 117 4. It is one of the plainest and most common grounds of equity jurisdiction, to guard innocent parties, and especially married women and infants against fraud and imposition. Sucli protection will bo afforded to a married wo- man against her husband. i&. 5. The rule is now well settled that a trust, either of real or personal estate, may he created by a direct gilt or bequest to the use of the wife, without the intervention of trustees, so as to prevent the hus- band's enjoyment of tie estate; and equity wi 1 sustain such trust, and declare the husband a. mere trustee for the use of the wife. ib. 6. On the death of the wife the husband may administer on her estate, and in that character take to himself lor his own benefit jure mareti. all herpersonal pro- perty ; and in caso lie dies before ho shall have fully administered on sucli estate, his representatives are entitled to the property. Donnington' 1 * adrn'r v. Mitchell's adm'x, 243 V. It letters of administration upon the wife's estate aro granted to the next of kin of the wite, they are deemed as trustees only lor the representatives of the hus- band, ib. 8. When the property of the wife by marriage agreement, executed before the marriage is conveyed to trustees, and no disposition is made of the property in the event of tho wife's death before the husband upon tho death of tho wife the property will go to her husband. ib. 9. Tho rights of the husband aro not suffered to bo taken away un- le-s by express terms, and his rights are as complete ia proper- ty placed in trust as in any other. j. 10. The cho?es in action of the wife, whether acquire! before or during tho coverture, notieduced into possession by the husband, survive to the wife. Dare's adm'rs v. Attends ex"r, 415 11. If the husband, before marriage, make a settlement on his wife in consideration of her fortune, he will he considered in equity as the purchaser of her fortune, and her choses in action, though not reduced into possession by her husband, will go to his represen- tatives, ib Vide EVIDENCE, 12. MORTGAGE, I. 10. ASSIGNMENT AND ASSIGNEE, 2, 8. LEGACY, 5. I. INFANT. Vide GUARDIAN AND WARD. IlEIR. INJUNCTION. I. It is requisite that the party ob- taining an injunction use due di- ligence in expediting his cause; and if the compUinaut is guilty of gross neglect in proceeding with his suit, tbo injunction will bo dissolved, Corey v. Voor- hccs, 5 INDEX. 541 2. It is no ground for the dissolution o!' nn injunction, tlrat the subpoe- na could not be served ; nor, that tlie injunction itself was served illegally, or without the jurisdic- tion of the court. ft. 8 Whether an injunction ought to issue upon a bill for an account of the partnership, to restrain the Fheriff, upon an execution at law against one of the partners, from selling the partnership property? Qa. Gamiivick v Johnson, 163 4. The power of dissolving injunc- tions, as well as of granting them, must necessarily rest much in the discretion ofthe court, and should l>e exercised in such way as to prevent the restraints hy injunc- tion from working unnecessary delay and injustice to parties, ib. 5 A technical denial of the com- plainant's bill will not in all cases dissolve the injunction : that must rest in the sound discretion of the court, and depend on the pe- culiar character and circumstances of each case. Mcrwin v. Smith, 182 6. "Where the complainant omits to have the subpoena served and re- turned at the term to which it is made returnable, the injunction will be dissolved. West v. Smith, 809 7. Where tho defendant against whom the gravamen of the chargo rests has fully answered the complainant's bill, the injunc- tion will be dissolved, although other defendants have not an- swered. Vliet v. Lowmaton, 404 8. Where the charter of a railroad company authorizes the construc- tion of the road, but provides that u payment or tender of pay- ment of all damages for the occu- pancy of lands through which the road may be laid out, shall be made before the company shall enter upon or break ground in the premises, except for the pur- pose of surveying and laying out the road, unless the consent of tho owner or owners of such lands be first had and obtained ;'' if the company enter upon any land in violation of such provi. A new trial of an issue directed by this court will not be granted, merely because on the former tri:il the judge misdirected the jury, if upon the whole evidence tlio court is satisfied that the ver- dict is right. Trenton Banking Co. v. Rossell, 611 JUDGMENT AT LAW. This court will not sustain an ex- ception to a judgment at -law on the ground of irregularity. Cam- mack v. Johnson, 163 ViJe DEBTOR & CREDITOR, 1, 2. VENDOI: & PURCHASER, 4-7. JUDGMENT CREDITOR. Vido DEBTOR and CREDITOR. VEX- DOR fend PURCHASER, 4-7. J. JUPylSDICTION (OF CHAN- CERY.) 1. It is settled at this day, that the courts of law and equity hold a concurrent jurisdiction in relation to dower and partition; and in ma- ny cases there is an indispensible necessity for the exercise of this jurisdiction by a court of equity. If thelegal title of the complainant be denied, if, is in the power of the court to send that question to be tried at law, and such is the universal practice. Hartshorne v. Hartshorne, 849 2. A court of equity will, to effect- uate justice, settle unliquidated damages Costirv. Monroe Manu- facturing Co. 467 Vide EXECUTORS AND ADMINISTRA- TORS, 10, 11,12, 14. HUSBAND AND WIFE, 4. LANTLOBD AND TKNANT, 1, 8. PARTITION. SHER- IFF'S SA.I.R, 9 Will I. I* LANDLORD AND TENANT. 1. Upon a bill for the specific per- formance of an agreement contain- ed in a lease, that at tho expira- tion of the term, the improve- ments made on the demised pre- mises by the lessee, shall remain the property ot'the lessor on mak- ing the lessee a fair compensation for the same ; tho court will en- tertain jurisdiction though the bill be purely for compensation and damages, provided n specific performance may be decreed, and the complainant can have ade- quate relief only in equity. Perry v. Van Winkle's rV, ' 2G9 2. The charge for improvements made upon the property by the lessee, tinder the terms of such an agreement, is in equity n lien on the property. i'J. 8. The court will not extend its jurisdiction beyond the claim of the lessee for compensation for valuable and permanent improve- ments put by him upon the de- mised premises, and which pass to the lessor at the expiration of his term; and will not suffer a claim for alleged infringements of the rights, of the lessee during his term, to be drawn in ques- tion, to. 4. Where by tho terms of ft lease it was agreed that the lessee should make improvements on the de- mised premises, at his own costs and charges, and that at the ex- piration of the term all the im- provements BO made should be and remain the property of the lessor, he paying to the lessee the value thereof the improvements are to be valued as they were At the time tho lease expired. Berry y. Van Winkle 1 1 t^rt, 890 INDEX. 6. If the lessor covenant that the lessee may, at any time during the term, erect a carding and full- ing mill, and any other machine- ry, upon the demised premises, and that at the expiration of the term {ill improvements made upon the lot shall be the property of the lessor, he paying for the same; the improvements to be paid for by the landlord are such only as he had previously author- ized to be made. ib. Vide MORTGAGE, I. 11.; LEASE. Yide LANDLOBD AND TENANT. LEGACY. 1. A legacy will be presumed to be a satisfaction of a detnand against the testator, where there are no circumstances showing a different intention. Van Riper v. Van Hiper's ex'rs, 1 2. The general rule, that a legacy will be deemed a satisfaction of a debt due from the testator to the legatee, is not favored, and ap- plies only where no presumption to the contrary can be drawn from the face of the will. ib. 3. Where the testator by his will directs the executors "to pay all his just debts ; " where the lega- cy is payable when the legatee arrives at age, and whero the debt to in a measure unliquidated, the legacy is no satisfaction of the debt. ib. 4. A present debt can never be sat- isfied by a contingent legacy, ib, 5. A legacy to a married woman is a chose in action, and governed by tha same rule (as to survivor- s'.iip) ns all other choses in action. SiowkiWa heirs v. SnowkiU't 30 Vi lo HUSBAND AND WIFB, 3. LESSOR AND LESSEE. Vide LANDLORD AND TENANT. LIMITATIONS STATUTE OF. Vide TBTJST AND TKUSTEE, 3. M. MASTER REFERENCE TO, &c. Vide PBACTIOE, IV. MISTAKE. 1 It is a well settled general prin- ciple, that equity wil not relieve from the consequence of an act fairly done on a full knowledge of the facts, though under a mis- take of the law. Ignorantia legit neminem excusat, is the general rule as well in equity as at law. Garwood v. JEl-dridge's heirs, 145 2. But where a mistake nas taken place in the facts as well as the law, or where seme suppression of the truth, fraud or contrivance has been practised, equity will interfere. ib. 3. It is among the first principles of a court of equity to correct mis- takes and to prevent parties being injured in their property, and es- pecially in their freehold, by any misapprehension or concealment of material circumstances. Read '& adirfrs v. Cramer, 277 4. Where a deed was delivered through mistake before the whole of the purchase money was paid or secured, the grantor was per- mitted to protect himself ngainbt the effects of the mistake, l>> keeping alive, in the hinds of a trustee, an incumbranco on the premises created by himselt be- fore the sale, although tlio deed contained covenants of general warranty, and Jigniiist all incum- brances. Neville v. Dctneritt,ZZ\ INDEX. 645 MORTGAGE. I. Of the Mortgage generally. II. Cancellation of Mortgage III. Equity of Redemption, foreclosure and Sale. I. Of the Mortgage generally. 1. S. G. having purchased of the owner of certain real estate, sub- ject to two mortgages and a judg- ment, applied the whole of the purchase money to the satisfac- tion of the mortgages, being the first incumbrances, and caused them to be cancelled and dis- charged of record. Held, that a purchaser under the judgment, took the property clear of the in- cumbrances of 'the mortgages, and that S. G. was entitled to no relief in equity. Gancood v. El- dridge's adni*r, 145 2. The person pay ing off a mortgage can be substituted in the place of the mortgagee, only, where the . mortgage is taken up by a third person, and not where it is satis- fied by the mortgagor himself. ib. 8. When an absolute deed is ex- ecuted, and by a different instru- ment the grantee agrees to re- convey to the grantor, upon the payment of a stipulated sum with- in a limited period, it is a ques- tion of intention- whether the transaction, constitutes a mortgage or a conditional sole. Crane v, Bonncll, 264 4. To ascertain the intention of the parties, and to aid in the fair con- struction of the instrument, the circumstances attending the transaction may be resorted to. ib. 6. If by the transaction the parties designed to create a mortgage, the time fixed for redemption is immaterial. If once a mortgage, it is always a mortgage. ib. 6. But if the transaction was intend- ed as a sale, with an agreement, for a repurchase within a given time, then that time is material. ib. 7. If it be doubtful whether the particular transaction constituted a mortgage or a conditional sale, equity regards it as a mortgage. ib. 8. The same rule obtains, though the defeasance rests in parol. ib. 9. If the defeazance be made- at a subsequent day, it will relate back to the date of the deed. ib. 10. If the husband before marriage, or in conjunction with the wife after marriage, execute a mort- gage, the widow can only have her dower subject to such mort- gage ; and if the mortgage be foreclosed and a sale made, the widow's rights nrc barred except as to the surplus after satisfying the mortgage. Hartthornt v. Ifartshorne, 349 11. Where a lease is made by the mortgagor subsequent to ihe> mortgage, the mortgagee is not. entitled to an account in equity against the tenant for the rents.. Price v. Smith* 516. 15. Where, a lost mortgage nas been, established, by a decree of the court,, as a valid and subs&iug: incnmbrance, the subsequent, finding of the mortgage in thei hands of a third person,, cancel- led, without further evi>lence,wili not vary the case, nor induce tlio court to alter the decree. Lilly T. Quick, 91 13. It is a role in equity that an in- cumbrance shall be kept alive or considered extinguished, aa will most advance the justice of the ease. Neville v. Demeritt, 821 J4G INDEX. II. Cancellation. 1 4. Tearing off the seals of a mort- gage, or even its entire destriic* tioti by an unauthorized pei'son, will not cancel it. It must be cancelled by consent of the own- er. Lilly v. Quick, 97 15. The cancellation of a mortgage on the record, is only prima facie evidence of its discharge, and leaves it open to the party mak- ing such allegation, to prove that it was made by accident, mistake or fraud. Trenton Banking Co. v. Woodruff, 117 16. On such proof being made, the mortgage will be established, even against subsequent mortga- gees without notice. ib. 17. A cancellation of a mortgage, and a discharge of record, unless effected through fraud, accident or mistake, is an absolute bar and discharge of the mortgage. Gar- wood v. Eldridges adm l rs % 145 18. "Where a mortgagee intention- ally and understaudingly cancels his mortgage, and in lieu thereof takes a deed for the same prem- ise?, and the mortgagor executes a second mortgage upon the premises prior to the deed, the first mortgage, in the absence of fraud, will not be revived, nor the second mortgagee prevented from reaping the benefit of his priority acquired by the cancella- tion of the first mortgage. Frazee v. Inslee, 289 II f. Equity of Redemption, Fore- closure and bale. 19. Where a party has obtained a decree of foreclosure, under which the mortgaged premises have been sold, it is too late to ques- tion the validity of the mortgage. Gettv. Flock, 108 20, A purchaser of the equity of re- demption at sheriff's sale, takes the property cum onere, and ac- quires no 'rights beyond what remain in the mortgagor after sat- isfying the incumbrance out of the land. HarUhorne v. Hart- shornc, 349 2"L The purchaser of the equity of redemption will in no event be permitted to hold the land dis- charged of the incumbrance; and if he attempt to make the debt by buying up the bond and mort- gage, and recovering the amount unjustly out of the obligor, the debt will in his hands be consid- ered extinguished. ib. 22. It seems that the purchser of the equity of redemption is liable to the extent of the land purchas- ed, and no further, and that he will at all times be discharged upon releasing the land. ib. 23. If the purchaser of the equity of redemption take an assignment of the mortgage, the debt is not thereby merged or extinguished, and the widow is entitled to her dower in the equity of redemp- tion only, subject to the mort- gage, ib. 24. Where a mortgage is given for the purchase money of land, con- veyed by the mortgagee to the mortgagor with covenant against incnmbrances, if it appear that at the time of the conveyance the premises were subject to a prior incumbrance, a decree of fore- closure will not be made upon such mortgage until the prior in- cumbrance is satisfied, or the prior incumbrance will, by tho decree, bo directed to be first paid out of tho proceeds of the sale, and the amount deducted from the sum due upon the mortgage. Van Riper v. Williams, 407 INDEX. 647 25. Where a mortgage is given to secure the purchase money of land, an allegation of an outstand- ing title against the land pur- chased, is no objection to a de- cree of foreclosure ; aliter, if the purchaser is evicted or an ejects inent actually commenced against him. Van Wagjoner v. Me Even, 412 26. Where land is conveyed with covenant of warranty, and the purchasers are evicted from part of the premises, or a judgment in ejectment is recovered &guinst them ; on a bill by the vendor for a foreclosure of a mortgage given for a part of the purchase money, equity will permit the purchasers, or those claiming tinder them, to avail themselves of the failure of title as a defence against a recov- ery upon the mortgage; and will either stay the proceedings upon the mortgage until the damages arising from the failure of title are ascertained by a suit at law, or will direct n issue, or a refer- ence to a master, to ascertain the damages, before decreeing a re- covery upon the mortgage. As a general rule, it will be referred to a master to ascertain the dam- ages, unless the complainant re- quires a trial at law. Coster v. Manrot Manufacturing Co. 467 27. But if the bill for foreclosure bo filed by an assignee of the mort- gage without notice, will equity, under such circumstances, inter- fere?^ ib. 28. An actual eviction is not ne- cessary to entitle the defendant to his damages on the covenant, provided there has been u trial and judgment in ejectment, though the court will not act upon a mere allegation that the title is defective. ib. Vide EVIUKKOT, 13. HUSBAND AD WIFE, 3. N. NEW TRIAL. Vide ISSUE, 5, 7, 13. NUISANCE. 1. This court, if a proper case be disclosed, will interfere by in- junction to prevent the obstruc- tion of ancient lights, Itoleson v. Pitteiiger, 67 2. Chancery will interfere by in- junction to prevent or remove a private nuisance, where the nuis- ance has been erected to the pre- judice or annoyance of a right which the other party had long previously enjoyed. ib. 3. It must be a strong and mischiT- ous case, of pressing necessity, or the right roust have been previ- ously established at law, to en- title the party to call to his aid the jurisdiction of this court, id. 4. Where ancient lights have exist- ed for upwards of twenty years, undisturbed, the owner of an ad- f joining lot has no right to ob- struct them; and particularly so, if the adjoining lot was owned by the person who built the house containing the ancient lights, at the time of building, and was subsequently sold by him. ib. 5. Whether this court will inter- fere by injunction to prevent the nuisance, or leave the party to establish his right at law, irmt depend on the particular circum- stances of each case. & O. ONUS PROBANDI. Vide ETIDKHOE. Uour, 5. ORPHAN'S COURT. 548 INDEX. Vide EXECUTORS AND ADMINISTRA- TOES, 1, 2, 3, 1115. PRERO- GATIVE COXTET, 1, 2, 8. ORDINARY. Vide PREROGATIVE COUET. P. PARTIES. Vide, PLEADING, I. PARTITION. 1. In equity there is no necessity that a partition should be so made as to give each party a share in every part of the property. Each party must have their share value, which is all that is requir- ed. Brookfield v. Williams. 341 2 To make the value of the sever- al shares equal, one party mny be required, under certain circum- stances, to pay money on his share to those who receive a share of less value. ib. 8. An equitable partition may be made so as to assign that portion of the land on which the im- provements are placed to the person who has made them. J. 4. Equity is not the proper forum, nor is a bill for partition the pro- per action, for trying the legal ti- tle to lands, Mannert T. Man- ners, 384 B. Wher*, upon a bill for partition the defendants dispute the com- plainants* title, the rule in equity us to retain the suit nntil the complainants shall establish their right at law. -il>. Vide JFEI&DICTION, 1. PARTNERSHIP. 3. In o^nity the creditors of apart- nership have a right to be first paid out of the partnership prop- erty, in preference to the creditors* of the individual partners, Cam- mack v. Johnston, 163 2. After the debts of a firm are sat- isfied, the residue of the property belongs to the individual part- ners, and can then, and then only, be applied to the payment of their individual creditors. '&. 3. Whether an injunction ought to> issue upon a bill for an account of the partnership to restrain the sheriff^ upon an execution at law against one of the partners, from selling the partnership proper- ty, ib. 4. As respects third persons, a dif- ferent rule prevails in regard to- silent partnerships from that which obtains in the case of open partnerships. *'&. &. At law, the visible partner, if sued alone, cannot plead! in abate- ment, that he has a dormant part- ner; and a creditor may at his election sue either the visible partner alone, or join any latent partner he may discover. &, 6. Those funds shall be liable (to> the claim of a creditor) en which the credit is given. In an open partnership, the credit is- given to> the firm, and to the goods they are possessed of, and 1 a partner- ship creditor shall be first paid oub of them but if the partner be unknown, the credit is giveo to the visible partner only, and! the goods in his possession are supposed to bo his own ; and in such case, the discovery of the latent partner cannot give any any preference to a partnership creditor. &, 1. As between the partners them- selves, there seems to- be BO rea- INDEX. 549 eon to make any 'distinction in their rights, whether any are dormant or not; bat as to the public, it is necessary to prevent injustice towards creditors that this difference should be observ- ed, a. 6 The execution creditor (in the case of a silent partnership) has his remedy complete against all the effects of the visible partner, and against all the effects which belong to him and his dormant partner, as partners, and it makes no difference whether tho debt was contracted by the debt- or on the partnership account or on his individual account' ib. PATERSON BANK. Vide CORPORATIONS.; PLEADING. I. Parties. If. Sill. III. Answer. IV. Plea. V. Demurrer. L Parties. 1. A complainant in the suit for the mere purpose of recovering a legacy, is not bound to make the representatives of a deceased co-executor, parties, when he ex- pressly charges that all the assets of the testator are in the hands of the surviving executor ; but such representatives are proper parties whenever such co-executor is charged with having assets, or when fraud or collusion is charg- ed between the executors, or in a case of insolvency. GobU v. An- druss, 66 2. Upon the same principle, debtors to the testator may be made parties, to reach assets in their hands. t'J. B. This is a privilege given to a complainant in the court of chan- cery, to go beyond tho party le- gally bound, to reach assets in the hands of other persona, out ot which his debt ought to be paid. But if such persons have no assets, and there be no other special ground assigned, they are not proper parties. ib. 4. The mortgagor having disposed of the equity of redemption, and having no interest in the mort- gaged premises, is not a necessary party to a bill for force. osure. Vreeland v. Loubat, 104 5. Can relief be had in this court against the representatives of one of two joint debtors, without making the other joint debtor a party, and showing by a return of null/I lona that the money could not be recovered against her at, lawl Qu, Hazen v. Durling's adm'r, 133 6. An administratrix cannot be made a party complainant in a bill with her co-administrators, without her consent, and if ebe claim adversely to the prayer of the bill, tho court, upon motion, will direct her name to be stricken from the bill as a complainant, and to be inserted as a defendant. Dare's admrs y. Allen's cV, 288 7. The general rule, that all par- sons who have an interest in the decree must be made parties, has its exceptions, and will be con- trolled and regulated in the dis- cretion of the court. StillwcU v. McNeely, 305 8. A mere nominal trustee cannot bring a suit in bis own name, without joining his cestui qne trust with him. *4. 9. Where the assignment of a judg- ment constituting a lien on mort- gaged premises is absolute and unconditional, the assignor ia not 550 INDEX. a necessary party to a bill for foreclosure. Bruen v. Crane, 347 10. The multiplication of parties should be avoided whenever they have uo interest at stake in the cause. 11. A mortgagor who has parted with all his interest in the mort- gaged premises, is a proper, though not a necessary party to a bill for foreclosure. Cheater v. King, 405 II. Bill. 12. Where a bill filed against a sur- viving executor for a legacy, charges that the executors ren- dered a joint account to the or- phan's court for final settlement, which was allowed; and also charges that all the assets are in the hands of the surviving exe- cutor, the latter charge is material and well pleaded. Goble v. An- druss, 66 18. A charge of adultery and a charge of extreme cruelty, cannot be united in the same bill. De- camp v. Decamp, 294 24. Nor is it proper to blend in one bill, an application for a divorce, with a prayer for independent relief grounded on charges which require an answer under oath. ib. 15. A bill for a divorce may con- tain a prayer for alimony, and any charge made in the bill re- specting property, which might affect the question of alimony, would be proper. ib. III. Answer. 16. The allegations of an answer Dot responsive to the charges in the complainant's bill, must be sustained by proof. The answer can be of no avail without it. Dickey v. Allen, 40 17. Where the bill alleges the exist- ence of a partnership, and prays an account of the partnership transactions ; an allegation in the answer, that by an agreement between the partners, on the dis- solution of the partnership, the complainant was to pay all the debts of the firm, is new and in- dependent matter, not responsive to the charges in the bill. ib. 18. If the bill of complaint charges the existence of a partnership, without stating its character, an answer by the defendants that the partnership is dormant and un- known to them, is responsive to the bill, and need not be sustained by proof. Cammack v. John- son, 163 19. An answer, so far as it is a re- sponse to the bill, will avail the defendant, unless it be overcome by the testimony of witnesses : but so far as it sets up new mat- ter, must be proved. Neville v. Demeritt t 321 IV. Plea, 20. A former decree pleaded in bar, need not appear to have been be- tween precisely the same parties with one to which it is pleaded, but it must always appear to have been for the same subject matter. Matthews v. Robert*, 333 21. If the defendant has a substan- tial defence which cannot avail him under his plea, from inaccu- racy in pleading, he may claim the full benefit of such defence by his answer. ib. 22. Under the statute regulating the practice in chancery, the defend- ant, under the usual order to an- swer after demurrer overruled, cannot file a plea. White v. Dummer, 627 INDEX. 551 V. Demurrer. 23. A demurrer to a bill in -equity admits every charge in the bill which is well pleaded. Goble v. Andruss, 66 24. Under a general demurrer for want of equity, a demurrer ore tenus made be made for want of parties. StiUwell v. McNeely, 305 PRACTICE. I. Process, Abatement, Bill, Amen- ded Bill. Supplemental Bill, and Bill of Retitor. IL Motions, Orders, Rules, Notice* Service and Publication of. III. Taking Testimony, Affidavits, Objections to Witnesses, and other intermediate proceedings. IV. 'Reference to a Master, Report, Exceptions, &c., Decree. V. Relief now granted. VI. Mo.iey paid into Court, Sur- plus Money. VII. Court of Appeals. I. Process, Abatement, Pill, Amen- ded Bill, Supplemental Bill, and Bill of Revivor. 1. It seems, that where the bill charges that one of two joint debtors is insolvent, the court, especially in favor of a surety, will sustain the bill against the representatives of the other. Hazen v. Durling't adm'r. 133 2. A. general creditor, having filed his bill for relief against a judg- ment confessed by his debtor, as fraudulent, was permitted, after a decree pro confesso against the defendants, and an ex parte hear- ing npou the evidence, to file a supplemental bill, in order to in- corporate in the record the facts, that after the eomflaeneement of his suit in this court, the com- plainant obtained a judgment and sued out execution at law. Ed- gar v. Cletenger, 258 3. Where the complainant omits to have the subpoena served and re- turned at the term to which it was made returnable, the injunc- tion will bo dissolved. West v. Smith, 309 4. It is not essential that a subpoena be served by the sheriff or coro- ner. It may be served by a pri- vate person, but in such case an affidavit must be made of the manner and time of service, and upon the return of the writ a rule must be taken on the defendant to plead, answer or demur, at or before the next stated term of the court. -ib. 5. The fourth section of the act, en- titled, "An act to prevent, in certain cases the abatement of suits and reversal of judgments," (Rev. L'iws t 164.) is intended to apply to cases where by the act of law the cause of action survives. The act is designed to save the necessity of filing bills of reviver, not supplemental bills. Rots v. Satfield. 363 6. If a suit becomes abated, and no- thing but the death of the party is necessary to be established to show the liability of the survivors a bill of revivor alone is suffici- / ent; but where new matter must be shown and proved, there a supplemental bill must bo filed, ib. Where the bill has been sworn to, and an injunction issued and serv- ed, no alteration shall be made in the original bill on file ; but tho amended bill most be engrossed anew, and annexed to the origi- nal. Lay ton v. leans, 367 552 II. Motions, Orders, Rules, Notices, and. Publication of. 7. Upon a motion tc dissolve an in- junction on the ground that the snbprena has not been serv- ed, the sheriff's return to the subpoena is conclusive, and can- not be contradicted by affidavits, unlesc collusion be shown between the sheriff and the complainant or his solicitor. Corey v. Voor- hees, 5 8 Notice of argument left at the solicitor's dwelling-house, in his absence, is good service. Taylor T. Thomas, 106 9. Notice good, though dated on Sunday. &. 10. On tne hearing of a motion to dissolve an injunction, upon the defendant's answer to the bill, the charges in the bill, unless met by the answer, are to be taken as true, and the allegations in the answer we entitled to the van* credit. Menem, v. Smith* 182 11. An order allowing a defendant f> examine his co-defendant as a witness, will always be granted upon a suggestion that the party to be examined has no interest in the cause, leaving the question oi interest to be settled at the bear- ing upon the proofs. Neville T. Demerit, 821 12. Where any of the defendants reside in this state, and arenerved with process, it is not necessary, imliiM under special circum- stances, that the order for the appearance of absent defendants should be published in any news- paper out of the statre. Foreign publication is only required where all of the defendants reside out of th* state. Wetmt*re v. Dyer, an 13. A motion to dissolve an injunc- tion will be entertained before answer filed. WoodhuU v. Ncafie, 409 14. Under the statute of New-Jer- sey regulating the practice in chancery, the defendant, under the usual order to answer after demurrer overruled, cannot file a plea. White r. J)ummer, 627 III. Taking Testimony, Affidavits^ Objections to Witnesses, and other intermediate proceed- ings. 15. An objection to the competency of a witness ought to be made at the time of taking the deposition? Qu. HoweWs ex'rs T. Auten, 44 16. The general rule is, that when an injunction has been obtained upon the complainant's affidavit alone, and a motion is made by the defendant, upon filing his an- swer, to dissolve the injunction, affidavits cannot be read upon the argument of the motion, either in support of the bill or answer. Menem v. Smith, 192 17. The rule admits of exceptions. In cases of waste, affidavits are admissible in support of the bill, to prove acts of waste. *&. 18. But affidavit* will not be ad. mitted in support of allegations contained in the bill, and not ex- pressly denied by the answer. The practice of this court i* in conformity with the rule adopted by the supreme court of the United States, viz. : that the alle- gations of the bill wiJ be taken as true when they are not met and denied by the answer; and if the answer does not fully meet the case disclosed by the bin, the injunction will be sustained, ft. INDEX. 553 19. Where new matter is contained in the answer, not responsive to the bill, which is relied upon as a .round for setting aside the in- junction, the complainant may read affidavits in contradiction of such new trotter. ib. 20. On an application, by petition, verified by the affidavit of the party, to set aside a sale, the ma- terial facts alleged in the petition must be proven. The affidavit of the party, except as to facts pe- culiarly within his own knowl- edge, must be supported by other evidence. COM v. Haltted, 811 21. Where the interest of a witness may be released by the party of* fering him, and no objection is made to the witness on his exam- ination, an objection made for the first time at the hearing, will not be sustained, without giving the party offering him an oppor- tunity to release that interest and to re-examine the witness, N- tiU* v. Dtmtntl, 821 S3. Parties are always examined as witnesses, by the very terms of the order, subject to all just ex- ceptions at the hearing. But wit- nesses, not parties, should be ob- jected to at the time of their ex- amination. H>. S3. A mere trustee may always be examined as a witness by a co- defendant. If it turns out upon the hearing that he has an inter- est in the cause that a decree may be obtained against him. al- though it be for costs only, his testimony will be excluded.* & 24 A complainant will not be or- dered to answer interrogatories which, are not tiled within fifteen days after filing the answer, un- kss a sufficient reason be disclos- ed to excuse the neglect on the part of UM defendant to file his interrogatories pursuant to the rule of the court. Pkelpt v. Curtu, ' 3S7 IV. Efferent* to a Matter. Report^ Exception*, <&. DeorM. 25. On a bill for foreclosure, against infants and other?, where any of the defendants have answered. the complainant cannot enter a rule of course to refer the cause to a master, except by consent of such defendants as have answer- ed, or their solicitor. laitoutSt er'rt v. Haycock, 105 26. Exceptions to the master's re- port must bo filed within eight days. Taylor v. Thomat, 106 27. A decree pro confesso may be taken at any time, after the time limited for the defendant to plead, answer or demur, has expired. It may be taken without notice* and as of course, unless it appear that some prejudice will thereby accrue to the adverse party. Oak- - 28. Where the complainant's mort- gage covers several parcels of land, which are covered by sub- sequent incumbranccs, the decree may direct the whole of the pro- perty to be sold, and the proceeds applied to satisfy as well the sub- sequent incutnbrances as the mort- gage of tho complainant ; and al- though the- complainant's mort- gage is satisfied by the sale of part of the premises, the sheriff may proceed to a sale of the re- mainder to satisfy subsequent in- cumbrances- Ely T. Perrinf, 396 39. But if any of the defendant's mortgages cover more property than the complainant's mortgage, Uie decree cannot direct a asle of that part of the premises nofeov- ered by the complainant's mort- r r-- " 554 INDEX. 30. The decree must not go beyond the relief prayed in the bill, and that is confined to a foreclosure and sale of the premises described iu the bill. ib. V. Relief how granted. 31. On a bill filed to establish a will devising real estate the court may grant relief either by making an injunction perpetual, restrain- ing the defendants from prosecut- ing any suit to disturb the com- plainants in the possession of their respective tracts, or by di- recting a release on the part of the defendants of all their right in said lands to be made to the complainants, or by a decree establishing the will in all its parts. The last course should be adopted wherever the contents of the will can be ascertained. Bailey v. Stiles, 220 32. Bill filed for relief on the ground of fraud; relief granted on the ground of mistake. Bead'* adm^rs v. Cramer, 277 VI, Money paid into Court, Surplus Money. 33. "When the amount awarded to be paid by a railroad company under the act of incorporation, for land taken or damages done by them, is directed by the statute to be paid into the court of chan- cery for the use of the owner or owners of the land, no notice to the company is necessary, of an application by the owners, for an order upon the clerk to pay over the money so deposited. Etparte, Van Vortft heir*, 292 34. An order to pay over the money so deposited will not be made, without a reference to a master to ascertain the rights of tho ap- plicants. '2>. , 35. Where, upon petition for sur- plus money, an order of reference is made to a master, the re aster must make his report, and a final order of the court be made in the premises, before the money can be paid over. Ex parte, Al- len, 388 VII. Court of Appeals. 36. This court will give to & de- cision of the conrt of appeals made in the same cause, its fair and just legal effect. Snowhill'a heirs v. Snowhill'a ex'er 30 37. Where a decree of the chancel- lor, allowing a general demurrer, is reversed in tho court of ap- peals.and the demurrer overruled, the court of appeals shoulddirect the record and proceedings in the cause to be remitted to the court of chancery. ib. Vide INJUNCTION ISSUE. PAETI- TION, 2, 5. PBEIJOOATIVK COUBT. RECEIVERS, 2. PREROGATIVE COURT. 1. The appeal given to the prerog- ative court by the twenty-seventh section of the act, entitled " An act to ascertain the power and authority of the ordinary and his surrogates, to regulate the juris- diction of the prerogative court, and to establish an orphan's court in the several counties of this state," passed June 13th, 1820, (Rev. Laws, 784,) authorizes the ordinary to look into tho merits of the decision made by the or- phan's court in granting letters of guardianship, and to affirm or set aside and change the appoint- ment made by tho orphan's court as the ordinary shall think the legal and just rights of tho parties require. Read v. Drake, 78 2. In cases of disputed claims to the right of guardianship, the depo- INDEX. 552 sitions taken at the hearing ehould bo reduced to writing by the surrogate, and be sent up with the papers on the appeal, ib. 3. Whether depositions are taken and sent up or not, the ordinary may, in his discretion, allow fur- ther depositions to be taken on notice, before the surrogate, to be used on the hearing of the ap- peal, ib. PROBATE. Vide WILL, 1. PROCESS. Vide PRACTICE, I. PROMISSORY NOTE. Vide EVIDENCE, 9. PUBLICATION. Vide PRACTICE, II. PURCHASER. Vide VENDOR AND PURCHASER. R. RECEIVERS, 1. Receivers, being officers of this court, are at all limes entitled to, and must receive, its advice and protection. Cammack v. John- son, 163 2. The authority of appointing re- ceivers of an incorporated com- pany, under the act of February 16th, 182'.), is a delicate one, aud should be cautiously exercised. It by no means follows, that, be- cause an injunction is granted, receivers should be appointed. Oakley v. PaUrson JBank, 173 8. That one of the directors is in- debted to the bank; that ho is security for his son, who was formerly cashier, and that he is using means to avoid responsibil- ity in that respect, and that there is division and discord in the board of directors, affords no just ground for divesting the board of the property and vesting it in re- ceivers, ib. 4. In the appointment of receivers, the court will not rest upon affi- davits stating, as matters of be- lief, that great frauds have been committed against the bank, without stating by whom com- mitted, or in what those fraud* consist. ib. 5. Under the statute, the complain- ant may, upon any new state of facts, renew his implication for the appointment ot receivers, ib. REDEMPTION (EQUITY OF.) Vide MORTGAGE, IIL REFERENCE TO MASTER. Vide PRACTICE, IV. RELIEF. Vide PRACTICE, ^V. REPORT (MASTER'S.) Vide PRACTICE, IV. REVIVOR (BILL OF.) Vide PRACTICE, 1. S. SALE OF LAND. Vide EXEOCTOUS AND ADMINISTRA* TORS, 9. SHERIFF AND SIIEB- IFF'S SALE. MORTGAGE, III. SHERIFF AND SHERIFFS SALE. 1. Judgment and execution credi- tors ot a defendant in execution, whose property lias been sold bj 556 INDEX. the sheriff, stand in a position which fully entitles them to be heard upon an application for re- lief against the sheriff's sale; and if the sale is in any respect ille- gal, it may be set aside at their instance. Merwin v. Smith, 182 2. Where the sheriff's advertise- ment, after specifying sundry parcels of land to bo sold by the sheriff, adds, " together with all his (the defendant's) other real estate in the county of Atlantic, ot which a more particular des- cription will be given on the day ol sale," it secrn? that the adver- tisement is detective, and insuffi- cient to authorize the sale of any lands except those specified in the advertisement. ib. 3. Some description, by which the property may be known, though imperfect in itself, is necessary, ib. 4. The discretion confided to the sheriff as a public officer, in sell- ing property, must not be unne- cessarily or hastily interfered with, nor without the charges (against his conduct) being sus- tained by indisputable evidence. A sale by a sheriff, upon execu- tion, in one parcel, of a large quantity of the defendant's prop- 'erty, which is readily susceptible of division, can never be justified upon any other ground than as being the best mode for making it bring the most money. ib. 5. A property may be so circum- stanced one part so dependent on the other as to require a sale in large parcels ; but the general :nle is, that it must be sold in different parcels if plainly divisi- ble, ib. ft. A sheriff cannot require security of a duly authorized agent of the plaintiff in execution, for the per- formance of his contract, nor can he refuse the bid of such agent for the want of the required secu- rity. & f 7. The exercise of the sheriff's dis- cretion must he a legal one, and so controlled as to work no in- justice or oppression. ib. 8. A sheriff may refuse to take the bid of an irresponsible man, or of any one when he is well satisfied that the sale could only be em- barrassed by accepting it. ib. 9. No exercise of the power of tho court can be plainer than that of controlling sales by public officers on its own process. Seaman v. jins. 214 10. The practice of the English chancery, of opening sales upon an offer made to bid more for the property, without any allega- tion of surprise or fraud, has net been adopted in this state. il>. 11. To justify the interference ot the court, there must be fraud, mistake, or some accident, by which the rights of parties have been affected. ib. 12. Sale set aside when the agent of an incumbrancer, whose inter- ests were prejudiced by the sale, and who intended to purchase, was prevented from attending tho sale by accident and by an unin- tentional mistake of the complain- ant's solicitor. ib. 13. The discretion vested by law in the sheriff is a legal discretion, and the court will not permit such an exercise of it as shall work injustice and wrong. ib, 14. It is not necessary that adver- tisements of the sale of real estate by a sheriff or a master in chan- cery, should be signed by the offi- INDEX. 657 cer with its own proper signature. Whether the officer's name is signed to tho advertisement by himself, or printed, or signed by another, is immaterial. In either case it is a virtual signing by the officer, Coxe v. Halsted, 311 15. Where a salo by a sheriff or master is adjourned, no pub ica- tion of the adjournment is necessa- ry, ib. 16. Where a sale is advertised for a specified day between the hours of twelve and fine o'clocJc in the qfter- noon, and the.property is sold in pursuance of such advertisement, the sale will not be set aside, al- though there is a propriety and convenience) in specifying a . particular hour between twelve and five o'clock for the sale. '&. 17. Nor will a sale by an officer be set aside because the terms of sale are unusually strict or severe, if the circumstances of the case case call for rigid measures, and no design is manifested to oppress dr injure the defendants. J. 18. Where a tract of land is divided into distinct parcels, it must be sold in that way. t&. 19. A refusal by the sheriff to de- liver a deed to the purchaser at a sheriffs sale, when rightfully de- manded, will not absolve the purchaser from his obligation to comply with his contract, if after such refusal by the sheriff the purchaser offer to accept the deed. Ely v. Perrine, 39G 20. Where the complainant's mort- gage covers several parcels of land, which are covered by sub- sequent incumbrances, the de- cree may direct the whole of tho property to bo sold, and the proceeds applied to satisfy as well the subsequent incumbran- ces as the mortgage of the com- plainant : and although the com- plainant's mortgage is satisfied by the salo of part of the premises, the sheriff may proceed to a salo of the remainder to satisfy the subsequent incumbrances. ib. 21. Where the decree and execu- tion are against the wife of the mortgagor, and it. afterwards proves that her right in the mort- gaged premises is not released, a specific performance will not be decreed, although the property was sold subject to all legal prior incumbrauces. *6. 22. The property under such cir- cumstances (to entitle the sheriff to a decree against the purchaser for a specific performance) should be sold with a distinct recogni- tion of the dower right of the wife of the mortgagor. tft. 23. Where by the conditions of a sheriff's salo it is provided that "if tho purchaser do not comply with the conditions, the property shall be resold," tho sheriff is not bound, upon a failure of the pur- chaser to comply with the con- ditions, to make a second sale, though requested to do so by the defendant in execution. Wood- hull v. Neafie, 409 24. It is the duty of a sheriff to sell property plainly divisible in scpor- ate parcels. Yet where a sale is made in violation of this rule, if made with tho approbation of the owner of the property, and if thirteen years have elapsed since the sale, and the property has descended to the heirs of tho pur- chaser, the court will not for this cause alone disturb the title. Penn v. Craig,' 495 Vide Timer AND TRITSTKI, 4, 6. 558 SPECIFIC PERFORMANCE. Vide AGREEMENT. EVIDENCE, 1G < 17. LANDLORD AND TENANT, 1. SHERIFF'S SALE, 21, 22. SPOLIATION. Vide WILL, 7, 10. SUBSTITUTION "Vide MORTGAGE, I. 2. SUPPLEMENTAL BILL. ' Vide PRACTICE, I. SURPLUS MONEY. Vide PRACTICE, VI. T. TENANT. Vide LANDLORD AND TENANT. TESTAMENTARY CAPACITY. Vide CAPACITY. TESTIMONY. Vide EVIDENCK. PRACTICE, III. TRENTON BANKING COM- PANY. Vide CORPORATIONS. TRUST AND TRUSTEE. 1. A trustee cannot transfer a trust estate to his own use, nor will he be permitted to make any profit, gain or advantage to himself, out of the trust estate in his hands. Trenton Banking Co. v. Wood- vff, 117 2. In the case of a direct trust, no time bars the claim as between the trustee and his cestui que trust. Allen's adm'rs v. Wool- ley's ex'rt, 209 8. B. A. executed a power of attor- ney to J. W , and thereby placed her whole property at the dispos- al of the attorney, with full pow- er to collect her choses in action, and to make sale of her goods and chattels, and out of the principal as well as interest of the proceeds to maintain and support her, with a special provision that J. W. should account whenever re- quired. Held, that this is a di- rect trust, to which a plea of tho statute of limitations is not ap- plicable, ib. 4. Where a bill is filed for relief against a sheriff's sale of tho complainant's property, on the ground that the purchaser was the agent of the defendant in exe- cution, and purchased as trustee for him ; it is no objection to granting relief that the trust was not in writing. Hoagland c, Jfoagland, 501 5. Mere inadequacy of price affords no presumption that the property was purchased in trust for the owner. . ib. U. USURY. 1. To constitute usury, under the statute of New- Jersey, there must be a contract in violation of the act. UowelV ex'rs v. Auten, 44 2. If a party agree to lend money at a legal rate of interest, and af- ter completing the contract, and receiving the borrower's obliga- tion for the money, withholds a part of the amount loaned, in vio- lation of the agreement of the parties, the obligation is not thereby tainted with usury, al- though the money be withheld by the lender as a premium for the loan. ib. 8. The obligation, in such case, is a valid security for the amount actually advanced upon it, but no IXDEX. more. The borrower will be en- titled to a credit for the amount withheld in violation of the Agreement. ib. 4. The selling of poods, or stock, or property ot any kind, at a price beyond its value, as part of a loan, by way of cover or pretext for obtaining more than the legal rato of interest, will taint the whole transaction with usury, and destroy the validity of the instruments given for the loan. Gromenor v. Flax, ami Hemp Manufacturing Co. 453 5. Proof that part of the loan was advanced in goods or stock, will not throw on the opposite party the burthen of proving the value of such goods or stock. The per- son charging the usury must prove not only that the goods or stock constituted a part of the loan, but also that they were put off at a price beyond their value. i?>. Vide EVIDENCE, 9. V. VENDOR AND PURCHASER. 1. The vendor of an estate, from the time of his contract, is a trus- tee for the purchaser ; and the vendee, as to the money, is a trustee for the vendor. Hoagland v. Latourette, 254 2. If a person who has contracted to sell land, sells it to a third per- son, the second purchaser, if he have notice at the time of his purchase of the previous contract, will bo compelled to convey the property to the first purchaser, ib. 3. Being a purchaser with notice of the equitable title of the vendee under the contract, he stands in the place of the vendor, and is lia- ble to the same equity. i?>. 4. A judgment crediter, with no- tice, can stand in no better si u- ation than a purchaser. ib. 6. Articles made for a valuable con- sideration, and the money paid, will in equity bind the estate and prevail against any judg- ment creditor mcsne between the articles and the conveyance ; but consideration paid must be some- what adequate to the thing pur- chased, 'ib. 6. If the vendee be a creditor of the vendor, and his design in pur- chasing be to save his debt, and this be known to the second pur- chaser, equity will regard the purchase money as paid the mo- ment the contract is complete, and a subsequent judgment will not attach upon the purchase money in the hands of the vendee. ib. 7. A judgment creditor metne be- tween the articles and the con- veyance, will be restrained by perpetual injunction from enforc- ing his judgment against the es- tate, ib. 8. The owner of a. tract of land, with the boundaries of which he was nnacqainted, caused it to be surveyed, run off into different lots, and a map made, preparatory to a sale at auction. On the day of sale the map was exhibited, and the property sold according to the map. A deed was prepared by the ven- dor, according to the map, lor j one of the lots, sold for a fifteen acre tract more or less; but the ' description afterwards, and be before the execution of the deed, was altered by the vendor, at the instance of the purchaser, who was well acquainted with the premises, and who alleged that the deed as originally prepared did not cover all the land pur- chased by him. The effect of t lie INDEX. alteration in tlie description was to pass twenty-seven acres to the purchaser not included in the plot or map exhibited at the sale, and which the vendor did not know belonged to him. The court de- creed, that the vendee should re- - convey to the heirs of the vendor, all the land exceeding the fifteen acres as described in the map by which the sale was made, and should pay the annual value there- of from the time he took posses- sion under the deed. Read's adm'rs v. Cramer, 277 9. Where, on a contract for the purchase of real estate between A. and B., the deed is made to 0. at the request of B.; on a bill to set aside the deed for fraud, 0. will not stand in any other or better situation than B. the purchaser would have done had the title been made directly to him. Torrey v. Buck, 366 10. The substitution of the name of a third person in the deed in the place of the purchaser, and at his instance, will not place the gran- tee in the situation of a bona fide purchaser without notice. ib. 11. The folly and indiscretion of the vendor can never justify the vendee in obtaining his property without compensation. ib. Vide AGHEEMENT, 9, 10. DEED, 4, 6. MORXOAQE, I. 1, III. W. WARD. Vide GUARDIAN AND WARD. WILL. 1. It in not indispensable that the pnrty offering a will or codicil for probate produce all the witnesses, provided those produced prove its due a*id legal execution. Whitenack v. Stryker, 8 2. The witnesses must attest the will at the request of the testator, but it is not necessary that the testa- tor should openly make the re- quest. His acquiescence when the witnesses are called in lor that purpose by another, is suffi- cient, ib. 3. The influence acquired over a testator by kind offices, uncon- nected with any fraud or contriv- ance, can never, alone, be a good ground of setting aside a will; such influence is lawful and pro- per. Lowe v, Williamson, 82 4. The influence thus acquired, though exerted over a te>tator above eighty years of age, whose bodily faculties are impaired, and who, without good reason, en- tertains feelings of hostility to his family, cannot invalidate the 'will. ib. 5. Where a testator by his will de- vises his land to the use of his wife for life, and directs that it shall he sold upon the marriage or death of the wife, and the youngest child coming of age upon the death of the testator the fee vests in the heirs. Oest v. FlocJc, 108 0. Whether under the will the exe- cutors have the power of ma- king sale or not, unless the lands are devised to them, they must before the s:,lo descend to the heirs; and having so descend- ed, the heirs have the power to transfer their interest in the lands, so far, at least, as to entitle the alienee to all their rights, whatever disposition may after- wards be made of them. ib. 7. In a caso of spoliation of a will, INDEX. 5G1 equity has jurisdiction, and the will may be established in this court. Bailey v. Stilet, 220 8. In order to establish a will in the court of chancery, all the witnes- ses to the will, it' within the pow- er of the court, must be examined. But if either of the witnesses be dead, or insane, or without the jurisdiction of the court, the will may bo established without the evidence of such witnesses. ib. 9. Under the statute of New-Jer- cey, it is requisite to the due exe- cution of a will to pass real estate, that the testator sign his name in the presence of the witnesses, ib. 10. On a bill filed to establish a will, under a charge of spoliation, it is not necessary to prove that the spoliation was committed by the individual charged in the bill, or by whom it was committed. It is enough if the fact of the spo- liation be established. 'ib, WITNESS. Vide EVIDENCE. PRAC- TICE, III. UC SOUTHERN REGIONAL UBRARY FAT* rr ii 1 1 i ii I II | 001 028 834 8