- : borrow, this book will plr.ns not deface it with pon or pencil narks. THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW GIFT OF Jchr B Surr G.W. and Wm Hellyer REPORTS OF CASES ADJUDGED IN THE COURT OF CHANCERY OF NEW YORK. COUN8ELLOB AT LAW. VOL. III. CONTAINING THE CASES FROM OCTOBER, 1817, TO DECEMBER, 1818, INCLUSIVE. THIRD EDITION, REVISED AND CORRECTED. ANNOTATED, BY STEWART RAPALJE. NEW YORK: BANKS & BROTHERS, LAW PUBLISHERS, No. 144 NASSAU STREET. ALBANY: 475 BROADWAY. 1883. 5397 v, 3 Entered according to Act of Congress, in the year one thousand eight hundred and seventy-three, BY BANKS & BROTHERS, in the Office of the Librarian of Congress at Washington. Entered according to act of Congress, in the year one thousand eight hundred and eighty-three, BY BANKS & BROTHERS, in the office of the Librarian of Congress at Washington. TABLE THE CASES REPORTED. %* The letter v. follows the name of the plaintiff. A. Anderson, Roberts v 371 Astor, Gardner v 53 Aymar v. Roil', 49 B Barrow v. Rhinelander, 120. 614 Beach, Haines v 459 Beekman v. Peck, 415 v. Waters, 410 Berry, Thompson v 395 Boyd v. Murray, 48 Bradish v. Gibbs, 523 Bradford v. Kimberly, 431 Brown v. Rickets, 63. 553 c. Catlin v. Harned, 61 Codrington, Cumberland, Duke of, v 229 Clason, Cooper v 521 Consequa v. Fanning 364. 587 Cooper, Young v 295 v. Remsen, 382 v. Clason, 521 Cook v. Mancius, 427 Cumberland, Duke of, v. Codrington,. 229 3 609366 TABLE OF CASES n Dale, Williamson v 290 Decouche v. Savetier, 190 Demarest v. Wynkoop, 129 Dcpau v. Moses, 349 Dennis, Mills v 367 Denning v. Smith, 332. 409 Duncan v. Lyon, 351 Dunkley v. Van Buren, 330 Dunn j Ferine v 508 E. Eaton, Pendleton v 69 F. Fanning, Consequa v 364. 587 G. Gardner v, Astor, 53 Gihbs, Bradish v 523 Gillet, Schoonmaker v 311 Goodrich v. Pendleton, 384. 520 Gray v. Murray, 167 Green, M'Kay v 56 , Phelps v 302 H. Ilains v. Beach, 459 Hanks, Matter of, 567 Harnecl, Catlin v 61 Halsey, Stackhouse v '. 74 Hodgson, Kirk v 400 Tlubbs, Livingston v 124 J. Jaques, Methodist Episcopal Church v 1. 7" 4 TABLE OF CASES. K. Kane, Livingston v 22 1 Kauman, Messonnier v 3. 66 Kimberly v. Sells, 467 , Bradford v 4;H King v. King, '>'>! Kirk v. Hodgson, 400 L. Lansing v. M'Pherson, 424 , Whipple t; 612 Lawrence v. Dale, 23 Lewis v. Lewis, 519 Livingston v. Livingston, 51. 148 v. Hubbs, 124 v. Kane, 224 v. Newkirk 312 Reade v 481 Lyon, Duncan v 351 M. Mancius, M'Intyre v 45 , Cook v 427 Mason v. Roosevelt 627 Mattocks v. Tremain, 75 Morrill, Shepherd v 423 Messonnier v. Kauman, 3. 6(5 Methodist Episcopal Church v. Jaques, 1. 77 M'Intyre v. Mancius, 45 M'Kay v. Green, 56 M'Kinnan v. Thompson 307 M'Menomy v. Murray, 435 v. Roosevelt, 446 M'Pherson, Lansing v 424 Moody v. Payne, 294 Mills v. Dennis, 367 Morris v. Parker, 297 Moses, Depau v 349 Murray, M'Menomy v 435 Murray, Boyd v 48 , Riggs v 16C , Gray v 167 v. Toland, 569 1'ABLE OF CASES N. Newkirk, Livingston v 312 Nicoll v. Roosevelt, GO o. Olcott, Tripler v 473 P. Parker, Morris v 297 Payne, Moody v 294 Pearsall, Rayner v 578 Peck, Beekman v 415 Pendleton v. Eaton, 69 :, Goodrich v 384. 520 Perine v. Dunn, 508 Phelps v. Green, 302 Q- Quackenboss, ex parte, 408 R. Rayner v. Pearsall, 573 Reade v. Livingston, 481 Remsen, Cooper v 382 Rhinelander, Barrow v 120. 614 Ricketts, Brown v 63. 553 Riggs v. Murray, 160 Roberts v. Anderson, 371 , Matter of, 43 lloff, Aymar v 49 Roosevelt, Nicoll v 60 , M'Menomy v 446 , Mason v 627 s. Salisbury, Matter of, 347 Sanger v. Wood, 416 Savetier, Decouche v 19C 6 TABLE OF CASES. 7 Schatzel, Woodward v '112 Schoonmaker v. Gillet, 311 Sells, Kim berly v 4(57 Sharp v. Sharp, 407 Shepherd v. Merrill, 423 Sherwood, Troup v 558 Shottenkirk v. Wheeler, 275 Smith, Denning v 332. 4()'J v. West, 303 Stackhouse v. Halsey, 74 T. Tremain, Mattocks v 75 Thompson, M'Kinnan v 307 . Berry, 395 Tripler v. Olcott, j 473 Toland, Murray v 569 Troup v. Sherwood, 558 V. Van Bergen v. Van Bergen, 282 Van Buren, Dunkley v 330 w. Waters, Bcekman v 410 West, Smith v 363 Wheeler, Shottenkirk v 275 Whipple v. Lansing 612 Woodward v. Schatzel, 412 Wood, Sanger v 416 v. Wilkins, 65 Williamson v. Dale, 290 Wilkins, Williams v 65 Wynkoop, Demarest v 129 Y. Young v. Cooper, 7 CASES ADJUDGED IN ar 9 e at NEW-YORK JAMES KENT, ESQ., CHANCELLOR. METHODIST EPISCOPAL CHURCH and others against 1817. JAQUES and others. METHO. EPIS CHURCH v. JAQUES. Where the fund was clear, and the rights of the respective parties as- certained, the Court directed, pending the account, a part of the mon- eys to be paid to the solicitor of infant plaintiffs, towards further de- fraying the past and future expenses of the suit, and the interest on the residue of the portion coming to such infants, to be paid, as it accrued, to their mother, for their necessary maintenance and edu- cation. PETITION, stating the substance of the pleadings and October i. decretal orders and sales, and other proceedings in this cause, and that the cause now stands on exceptions to the master's report, and that the defendant threatens to prosecute this cause further by appeal, and that all the plaintiffs stand in need of pecuniary aid, to enable them to carry on this ex- pensive litigation, and that the infants, who are plaintiffs, are in want of moneys for their necessary maintenance and edu- cation, and stating that a large sum of money is now in court, accumulating in the hands of the assistant register, and that one third of it belongs, of right, according to the said decretal orders, to the trustees, *and one third of it to the [ * 2 ] infants, and the other third to the defendant J. D. Jaques; and praying that one third of the said funds in the hands of the assistant register, to the credit of this cause, may be paid to the said trustees, and a reasonable portion of one other third, to the solicitor and counsel of the said infants, towards VOL. Ill 2 9 2 CASES IN CHANCERY. Ifcil7. * ue P as t an( i future expense of this cause, and that the in- x^^-^-^x come and produce of the residue of the said third part; may METHO. EPIS. be appropriated towards their requisite maintenance and education, and that a receiver may be appointed, to take the securities, and collect the debts due to the estate of Mori/ Jaques, deceased, for the benefit of the parties to this suit, who are her residuary legatees, &c. litggs and Harrison, for the petitioners. They cited Roun- dell v. Currer, 6 Vesey, jun. 250 ; Shortbridge' 's case, 12 Vesey, 28, and 13 Vesey, 92 ; showing that moneys have been paid out of Court to the parties, when it was ascertained, as it is here, that the moneys asked for will be coming to them, &.c. T. A. Emmet, contra. THE CHANCELLOR directed, that the third part of the pro- ceeds of one third part of the sales of the real estate, in the petition mentioned, be paid to the trustees, and that out of the stock and funds in Court, one third part be placed to the credit of the infants, and that 1,000 dollars be paid thereout to their solicitor, towards the past and future expenses of the suit, and that the interest and income of the residue of the said one third part be paid, as it arises, to their mother, for their necessary maintenance and education. Order accordingly. 10 CASES IN CHANCERY. *3 *MESSONNIER against KAUMAN, GOMPERTS. and others. 1817. G. assigned a cargo and tne proceeds, &c. to K. in trust, for the benefit of K. and M., but M. was to be Jirst secured and satisfied for his ad- vances to G., to enable G. to pay certain bills accepted by him, drawn and negotiated by M., to pay for the cargo, &c. G. and K., after- wards, with the assent, as they alleged, of the agent of M., but with- out the knowledge or consent of M., cancelled the deed of assignment, which was dated the 7th of February ; and executed another deed of assignment, on the 28th of February, to K. and S., in trust, to pay M. and K., and certain other creditors named therein ; and in case the fund proved insufficient to pay all the debts specified, that then it should be distributed ratably, between M., K., and the other creditors named, in proportion to their respective demands ; and the fund eventually proved insufficient to pay all the debts specified in the second assignment : Held, that the cancelling of the first assignment by G. and K, was fraud- ulent, as regarded the plaintiff", M., who was, therefore, entitled to the full benefit of that assignment, and must be first and exclusively paid, out of the fund, his whole demand ; and that the second assignment, so far as it was inconsistent with the first, or as to the right of the plaintiff* to be first paid, was void. THE bill was filed by the plaintiff against Gompert S. Gomperts, Israel B. Jacobs, and Seixas Nathan, partners in trade at New- York, under the firm of Gompert S. Gomperts and Co., Joseph Kauman, S. Jones, jun., and certain creditors of G. S. G. and Co. The bill stated, that on the 12th of December, 1810, G. Seixas, the agent of G. S. G. and Co., ap- plied to the plaintiff, (who is a merchant residing at Balti- more,} to aid him, by his credit and endorsements, in loading the ship Eastern Star, then at Baltimore, which the plaintiff consented to do. The agent of G. S. G. and Co. accordingly drew five bills of exchange, at 60 and 90 days, amounting to 14,090 dollars, and another bill for 904 dollars, for dis- bursements and commissions, on G. S. G. and Co., in favor of the plaintiff, and endorsed by him, which six bills were accepted by G. S. G. and Co., and the vessel sailed on her voyage with a cargo purchased with the aid of the five bills. Before any of the bills became payable, the defendant Kauman, in behalf of G. S. G. and Co., by *letter, dated January 31st, iSll, ap- plied to the plaintiff, and in their name promised that if the plaintiff would forward the necessary funds to K., to enable him to take up the bill for 904 dollars, payable the 5th of February, and the bills for 4,000 dollars, and 1 ,900 dollars, payable on the 14th and 20th of February, G. S. G. and Co. would regard the claim of the plaintiff as privileged ; and K. 11 Octoter I [*4 4 CASES IN CHANCERY. 1817. offered, in their name, as security, to make over to the plain v^^-x^^x tiff the outward cargo, and the return cargo, or proceeds oi MESSONKIER the ship Eastern Star, with the policies of insurance, &c KAUMAH ^ ne P^" 1 ^^ m n ' s answer, promised to accede to this pro- posal, provided G. S. G. and Co. would make over to him the ship, as well as the cargo, &c., to secure his whole claim, or all the bills, amounting to 14,985 dollars, with interest, and in the mean time, to prevent delay, the plaintiff author ized K. to take up the bill for 904 dollars, and to draw on the plaintiff for the amount, at sight, which was done, and the sum paid by the plaintiff accordingly. That afterwards, K., by letter, dated the 6th of February, 1811, after he had advanced the 904 dollars to G. S. G. and Co., informed the plaintiff, that he (K.) was endorser for them, and that the transfer of the cargo and proceeds was preparing for the joint benefit of K. and the plaintiff, and that G. S. G. and Co., de- clined including the ship in the assignment ; and to induce the plaintiff to acquiesce in the change of the terms of secu- rity before offered, he expressed his opinion that G. S. G. and Co. could now go on to meet their engagements. That on 7th of February, 1811, G. S. G. and Co. assigned to K. the cargo and proceeds of the ship Eastern Star, with the policies of insurance, for the benefit of K. and the plaintiff. That on the 9th of February, the plaintiff forwarded to K. 5,900 dollars, to take up the bills, payable on the 14th and 20th of February, endorsed by the plaintiff, and accepted by G. S. G. and, Co. That when those sums were forwarded to K., the plaintiff did not know whether the assignments were [ * 5 ] made, and instructed *K. not to deliver the remittances, ex- cept upon the transfer of the ship, cargo, and proceeds, with the policies, &c. That when he found the transfer was for the joint benefit of K. and himself, he wrote to K. on the 12th of February, stating his objection, and that he must be fully secured, and on those conditions only did he consent to part with his funds. That K., by his answer, dated 14th of February, assured the plaintiff that he might consider himself completely secured by the transfers made by G. S. G. and Co., and that the claim of the plaintiff was to be first satisfied. The plaintiff, being satisfied with this assurance, wrote to K., on the 19th of February, to that effect ; and on the 14th of March, 1811, at the request of G. S. G. and Co., and of K., he remitted to K. 8,100 dollars, to take up the remaining bills, thereby becoming a creditor of G. S. G. and Co. to 14,985 dollars. That the cargo of the Eastern Star arrived safely at Lisbon, and was sold for above 30,000 dollars, chiefly for bills on the British government, which were paid ; and the proceeds had come, or might have come, to the hands of the plaintiff, and that the ship returned to New-York, with a cargu 12 CASES IN CHANCERY. of salt and cocoa, which K. received, and sold for 3,000 dol- 1817. Jars, and had also received, or might have received, the freight. The bill further stated, that the moneys so received by K. had not been applied to the benefit of the plaintiff; but Gr. KAUMAN. S'. G. and Co., and K., (combining with the other defendants, to deprive the plaintiff of the benefit of the transfer of the 7th of February,) had executed, on the 28th February, 1811, another deed of assignment to the defendant K., and to Jones, of the cargo, proceeds, and freight of the Eastern Star, in trust, to pay the expenses of the trust, and to reimburse themselves ; then to pay the plaintiff what he had advanced, or should advance, to G. S. G. and Co., under the agreement aforesaid; and to pay j.,and the other defendants, their ad- vances and responsibilities, being about 8,182 dollars and 50 cents, and to pay the defendant * Jacobs a debt of 12,800 dollars ; and that if the property assigned was not sufficient for all these purposes, then to distribute the same, ratably, among the plaintiff and the defendants, according to the amount of their respective debts. The bill charged, that this deed of trust, as far as regarded the property before assigned to the use of the plaintiff, and to entitle him only to a ratable proportion with other credit- ors, was fraudulent and void ; that K. was a trustee for the plaintiff under the deed of the 7th of February, and had no right or authority to give it up, or cancel it, or to do any act to impair the rights of the plaintiff, who was entitled to be first paid out of the property. The bill further stated, that on the 13th of February, the plaintiff sent Lewis PascauJfto Neiv-York with all the cor- respondence between the plaintiff and G. S. G. and Co., and K., and expressing his dissatisfaction with the letter of the 7th of February ; and with the intent that P. should procure transfers of the ship, cargo, and proceeds, with the policies, &c., to the exclusive use and benefit of the plaintiff. That, after the departure of P., the plaintiff received the letter of K. of the 14th of February, assuring the plaintiff, that he was to be first secured and paid, by that deed ; to which the plaintiff replied, on the 19th of February, expressing his sat- isfaction, and requesting that the deed might be recorded ; and wrote letters to G. S. G. and Co., and K., expressing the object of sending on P. ; so that all further authority of P. was at an end by the acquiescence of the plaintiff in the as- surance of K. as to the deed of the 7th of February ; and that if, as the defendants pretended, the surrender of the deed of the 7th of February, and the provisions of the second deed of the 28th of February, were approved of by P., as the agent of the plaintiff, P. had no authority for that pur- pose, the object for which he was sent no longer existing ; 13 CASES IN CHANCERY. 1817. and if he did give such sanction to the second deed, it was pro ^^-^~^~/ cured by imposition *and deceit, as the defendants must have MESSONNIEK known, after the letter of the plaintiff of the 19th of Febru- KAUMAN. ar #> expressing himself satisfied with the deed of the 7th of February, that P. had nothing further to do for the plaintiff or authority to act for him. That K., by a letter dated the 20th of February, stated to the plaintiff, that P. and K. had agreed to a new transfer of the property to K. and Jones, in trust, for all the creditors ; and that the deed of the 7th of February was, therefore, null ; to which the plaintiff, by two letters of the 24th of February, and received by K. the 26th of February, expressed his dissent, and adhered to the deed of the 7th of February, with the explanations of K. of the 14th of February. That the cancelling the deed of the 7th of February, and the execution of the deed of the 28th of February, was after K. had received the plaintiff's two letters of the 24th February, and without his consent, and he has never ratified those acts ; and that if any thing has been said or done by the plaintiff to that effect, it has been procured by imposition. The bill then charged various misrepresenta- tions by K. to the plaintiff, as to the debts, &c. of G. . G. and Co., and which the plaintiff showed to be the result of design on the part of G. & G. and Co., and K., to mislead and deceive the plaintiff, and to induce him to remit the 8,182 dollars to take up the remaining bills. That none of the property assigned by the deed of the 28th of February was available, except the bill of exchange taken for the out- ward cargo, and the proceeds of the homeward cargo ; and that K. received out of the proceeds, &c. above 30,000 dol- lars, which he had applied to his own use ; and that the plaintiff had not received any thing under the deed of the 7th of Febru- ary, nor had any pro rata payment been made to him by Jones or K., under the deed of the 28th of February ; and that K. had become insolvent, and was totally unfit to be a trustee. The bill prayed, that an account might be taken between [ * 8 ] *the parties ; that the deed of the 28th of February, so far as it interfered with the deed of the 7th of February, might be declared to be null ; and that the plaintiff might have the full benefit of the deed of the 7th of February, and be first paid out of the property transferred by that deed ; that any pay- ments to any of the defendants, under color of the deed of the 28th of February, so far as the same were inconsistent with the deed of the 7th of February, and the letter of K. of the 14th of February, might be deemed to have been paid in fraud of the plaintiff; and that the moneys might be paid over to the plaintiff by such of the defendants as had received them ; and that K., on the coming in of his answer, might be ordered to bring into court all moneys or securities, or other 14 CASES IN CHANCERY. property received or possessed by him as trustee under the deed of the 7th of February, or of the 28th February; and for general relief, &c. MESSONNIEB V. The answer of Kauman (and which, by consent, was re- ceived as an answer for the other defendants) admitted that G. S. G. and Co. confirmed the negotiation with the plaintiff, by Seixas, their agent ; that the bills drawn by him were en- dorsed by the plaintiff, and accepted by G. S. G. and Co. ; and that the ship arrived at Lisbon, with a cargo purchased with the five bills ; that the plaintiff paid all the expenses, &c., which were partly secured by the bill for 904 dollars ; and that the plaintiff did all this business for the usual com- mission, without any lien on the cargo, or collateral security. That in the latter part of January, 1811, G. S. G. and Co. stated to the defendant, that they were embarrassed, but solvent, and urged him to write to the plaintiff for his aid in taking up the three first bills, (amounting to 6,800 dollars ;) and that he should remit the money to the defendant ; and that they would look on his, the plaintiff's, as a privileged debt ; and that he should not suffer ; and they offered to the defendant the cargo and proceeds, and policies and freight, to secure the plaintiff *for such advances and payments. [ * 9 ] That the plaintiff, by a letter of the 25th of January, informed the defendant of his endorsing the five bills, and requested his advice as to the safety of G. S. G. and Co. That, on the 3 1 st of January, the defendant, by letter, applied to the plaintiff for G. S. G. and Co. ; and the plaintiff, by his answer of the 2d of February, said he should take up two of the bills, and requested the defendant to pay the third, of 904 dollars, immediately, and to procure a cession of the ship, cargo, and policies, as security for the 14,985 dollars, with interest. That the defendant applied to G. S. G. and Co., who said the ship was not at their, disposal, and that they considered the security to be given to extend only to the advances to be made by the plaintiff, and offered to the defendant, who was also an endorser, to assign to him the cargo and proceeds, &c., to secure the plaintiff the reimbursement of the remit- tances for the three bills, and for security of the defendant ; and said that they expected themselves to be able to meet the other bills, payable in March. That the defendant, and G. S. G. and Co., agreed to such assignment. That on the 6th of February, he informed the plaintiff of the agreement ; and on the 7th of February, the cession was made, which did not cover the outward cargo, and the security extended only to the February bills. That this deed of cession was soon after given up to G. S. G. and Co. That the plaintiff, by his letter of the 6th of February, complained of them, and in- 15 9 CASES IN CHANCERY. 1817. sisted on a cession of ship, cargo, and proceeds, and, at the v^^-^-^x same time, promised to remit for the February bills. The MESSONNIER defendant admitted the correspondence between him and the K v - plaintiff, as stated in the bill. That he received from the plaintiff, on the llth of February, 5,900 dollars to pay the February bills, with orders not to apply the money, until the plaintiff was fully secured to the amount of all such remit- tances, and for all his responsibilities for G. S. G. and Co. [ * 10 ] He admitted, also, the explanation of the deed of *cession of the 7th of February, made in his letter of the 14th of Febru- ary, that the defendant was to have the surplus only, after payment of the demands of the plaintiff. That the defend- ant considered that G. S. G. and Co. had complied with their engagement, and that the security extended only to the Feb- ruary bills, and he, therefore, paid those bills with the money remitted to him by the plaintiff. That Pascaulf arrived in New-York the 17th of February, as the authorized agent of the plaintiff, and applied for a renewed security to the plain- tiff alone, and to cover all his responsibilities, which wa% re- fused; that he then demanded that the property assigned should be applied exclusively to the benefit of the plaintiff, which was refused ; but the defendant was willing to agree to it to the extent of the three bills, or 6,800 dollars, but G. S. G. and Co. refused, and proposed to make an adjustment with the plaintiff and the other creditors, whose debts were honorary, and entitled to a preference ; and in consideration that the plaintiff would take up all his endorsed bills, and the former assignment be annulled, that they would assign the balance of the ship, and policies of insurance on another ship, and the proceeds of the cargo aforesaid, and other property, for the benefit of the plaintiff and others. That. P., as agent of the plaintiff, agreed to this proposal, and such assignment was, accordingly, executed on the 28th of February, with a schedule of the debts secured, &c. That the defendant, thereupon, with the assent of P., gave up to G. S. G. and Co. the first assignment, which was cancelled, and P. agreed to the payment of the first three bills, and that the plaintiff should take up the March bills. That certain changes in the property to be assigned were made with the assent of P. The answer set out the assignment of the 28th of February, and stated, further, that G. S. G. and Co. became insolvent about the 28th of February, and applied for the benefit of the insolvent act in May, and obtained their discharge in [*11] August, *1811. That their debts, exclusive of those provided for by the assignment, amounted to 40,000 dollars ; and their property, not included in the assignment, was very inconsid- erable. The defendant further stated, that the deed of the 7th of February was cancelled with the assent of P., undei 16 CASES IN CHANCERY. 11 an impression that the assignment of the 28th of February 1817. would be more beneficial. That the plaintiff would not have \^r^~*+-s been entitled to any preference to the defendant under the MESSONSIER first deed, notwithstanding any stipulation of preference by KAUMAN the defendant ; nor would the plaintiff have been entitled to payment of more than the three first bills ; and that the as- signment of the 7th of February was of no force, as the plaintiff did not agree to it, but claimed security for all the five bills, and that he should be first paid, which was repug- nant to the terms of the deed. That P. assumed to be the general authorized agent of the plaintiff, and the defendant was warranted to treat with him as such. The defendant denied all fraud in procuring the assent of P., or that the as- signment of the 28th of February was fraudulent. He ad- mitted that the plaintiff, on the 14th of March, sent him 3,100 dollars to take up the two last bills; and stated, that P. came again to New- York, in May, 1811, as agent of the plaintiff, and was informed of, and approved of every thing that had been done, and claimed only a ratable pro- portion under the deed of the 28th of February. That, on Ihe 29th of May, the defendant informed the plaintiff of a deficiency in the fund; and that the deed of the 7th of Feb- utary was given up to be cancelled before the plaintiff's letters ( f the 19th and 24th of February were received, expressing his dissent to the arrangement ; and that the plaintiff did not express his dissent to the surrender of that deed until after the defendant had entered on the execution of his trust under the second deed. That the plaintiff was under no misappre- hension of his rights, and did not make the advance of the 8,100 dollars under any ignorance of facts, or of his rights. *The defendant admitted that he had received, under the [ * 1 2 assignment of the 2Sth of February, 3,132 dollars and 48 cents, from a sale of part of the outward cargo, 14,977 dol- lars for the British government bills, and 3,61 5 dollars besides, and had paid certain sums to the custom-house, and to cer- tain other creditors, before he knew that the plaintiff had claimed the fund exclusively, and which sums, so paid, he prayed might be allowed, and a commission of five per cent., to him. He admitted the right of the plaintiff to a propor- tional dividend, pro rata, with the other creditors named ; but only for the three first bills, or 6,800 dollars. The assignment of the 28th of February, recited that the defendant Kauman, and other creditors, who were severally named, and the plaintiff, had made advances and incurred responsibilities for G. & G. and Co., and that the plaintiff had agreed to take up the bills payable in March, amounting to 8,182 dollars and 50 cents. That G. G. and Co. had as- signed the ship Eastern Star, and the policies of insurance, VOL. Ill 3 17 12 CASES IN CHANCERY. 1317. * B- Jacobs, and also the policy of insurance on another v^-~xx-^x ship, to secure to Jacobs 12,800 dollars; and that the surplus MESSONSIER was to be for the benefit of the persons named in this assign- ment. The cargo of the Eastern Star, and proceeds, and KAOMAN. ,...,. . . . . _ . . policies of insurance, and the other property specified in a schedule, were then assigned in trust ; 1 . To pay the ex- penses of the trust ; 2. To pay the plaintiff the sums he had, or might advance for G. S. G. and Co., and to pay K. and the other creditors named, and pay Jacobs any deficiency in the security for his debt. 3. In case there should be a de- ficiency in the fund so as not to pay all the creditors named, including the plaintiff, in full, then all of them, including the plaintiff, were to be paid pro rata, according to the amount. The material part of the evidence consisted in the cor- respondence between the plaintiff and Kauman, the substance * 13 J of which is stated in the opinion of the Court. *PascauIf was examined as a witness for the plaintiff, and Seixas Nathan (who was concerned in the house of G. S. G. and Co.) for the defendants : their evidence, in several particu- lars, was contradictory. It was admitted that Jones, though a trustee, had done no act, nor received any funds, under the assignment of the 28th of February ; and that he never saw or heard of the assignment of the 7th of February, until after the execution of the second assignment. That the creditors of G. S. G. and Co., and who are defendants, insist on the benefit of that assignment. The cause came on to be heard on the 18th of June. T. A. Emmet, for the plaintiff, insisted (1.) on the assign- ment of the 7th of February, and that the plaintiff was fully secured thereby for the whole of his demand, with interest, in preference to the debt of Kauman. 2. That Kauman, having delivered up that deed of assign- ment to be cancelled, without the concurrence of the plain- tiff, and contrary to his direction, the cancelling of it was a breach of trust, and, as regards the plaintiff, was fraudulent and void ; and that the deed ought still to be considered as existing and in force, for the benefit of the plaintiff, and to the extent of his demand. 3. That it was not competent to the defendants, or either of them, to destroy the plaintiff's right to be first satisfied out of the property so assigned for the plaintiff's benefit. 4. That the general assignment of the 28th of February, 1811, so far as it purports to transfer the property comprised in the first assignment, is inoperative and void, as against the plaintiff's prior security, and a fraud on him. 5. That the assignment of the 28th of February was never assented to by the plaintiff; and any apparent acquiescence 18 CASES IN CHANCERY. in it, on his part, was the result of misrepresentations *on the part of K., and of the plaintiff's ignorance of its provis- ions, and his own previous rights. 6. That under the general assignment, so far as it may be deemed valid and operative, the plaintiff is entitled to be paid pro rata with the other creditors named, on the whole amount of his advances. 7. That the defendant Kauman, on account of his mis- conduct and breach of trust, was responsible to the plaintiff for his whole debt. S. Jones, jun., for the defendants, contended, 1. That the deed of the 7th of February, 1811, was never perfected and made absolute and binding on the parties ; but if it was bind- ing, the plaintiff was entitled, out of the funds assigned, to no more than a reimbursement for his advances to G. S. G. and Co., to enable them to take lip the bills payable in Feb- ruary. 2. Th it the deed of the 7th of February, 1811, if of any force, was relinquished and annulled by the mutual consent of the parties. 3. That the deed of the 28th of February, executed by G. S. G. and Co., was accepted by the plaintiff as his secu- rity for his advances. 4. That F. Pascaulf was the agent of the plaintiff, and had competent authority to act for the plaintiff, in the prem- ises, and that his acts bind the plaintiff. 5. That the cancelling of the deed of the 7th of February was agreed to by Pascaulf, the agent, and his act afterwards acquiesced in by the plaintiff. 6. That the deed of the 28th of February was agreed to by the agent of the plaintiff; and the same was afterwards confirmed and adopted by the plaintiff. 7. That part of the fund, having been parted with by Kauman, the acting assignee, under the deed of the 23th of February, after the recognition thereof by the plaintiff, and before notice of any objection on his part, it is now *too late to call it in question, or to set up the deed of the 7th of February. 8. That the deed of the 7th of February having been can- celled, and the property and funds therein mentioned being assigned to, and vested in, K. and J., by the deed of the 28th of February, for the benefit of the plaintiff and other credit- ors, the deed of the 7th of February cannot now be set up to the prejudice of the creditors provided for by the second deed. THE CHANCELLOR. The decision of this case depends upon the question, whether the plaintiff is entitled to be paid 19 1817. ^~NX~^ MESSONNIER v. KAUMJH [*15] October I. 15 CASES IN CHANCERY. 1817 under the assignment of the 7th of February, in exclusion ol V**-N/-^X the other creditors ; or whether, that deed being duly can- MESSONNIER celled, he can only come in for his pro rata dividend, under K *U V MAN. the trust of the 28lh of February, 1811. The assignment of the 7th of February was from G. S. G. and Co. to Kauman, for the benefit of l{. and the plaintiff, of the proceeds of the cargo of the ship Eastern Star, on the outward voyage, and of the policies on the cargo and freight. Tt was an assignment under hand and seal. This assignment does not specify the particular debts for which the assignment was made. It is general, and would, of course, entitle the assignees to hold the property as a security for all their then existing demands and responsibili- ties. It would entitle the plaintiff to hold the property in pledge for his reimbursement and indemnity, in supplying the cargo of the ship, and endorsing the five bills of exchange which had been drawn on G. S. G. and Co., and accepted by them. The plaintiff had an equitable pretension, superior to that of any other creditor, (for none had then acquired any actual legal lien,) to be indemnified out of the proceeds of the very cargo which he himself had furnished. If we attend to the history of the facts which led to this assignment, we shall find that the plaintiff claimed it, and expected it to be [ * 16] made for his *benefit exclusively, and to the extent of his whole demand. The proposition came from the debtors themselves. A letter from K., of the 31st of January, 1814, mentions, that G. S. G. and Co. had applied to him to procure from the plaintiff aid to enable them to take up the three February bills ; and what did they promise as a consideration for this aid ? They said that they would then look upon the plain- tiff's claim as a privileged one, and that, in no case whatever, would they suffer him to be injured by them; and they of- fered, as a security for his advances as above stated, to make over to him the proceeds of the outward cargo, with the policies. The offer in this letter is a little equivocal, and if not designed as security for his whole demand, would be apt to mislead the plaintiff, especially considering him as a foreigner not well versed in the import of terms in our language. It promises him, in the first place, that his claim shall be privi- leged. This would lead any person of ordinary understanding o suppose they meant his whole debt, and especially when they added that he should never suffer by them. But, after- wards, they offer the proceeds as security for his said ad- vances, which, perhaps, strictly considered, would apply only to the special aid then called for. The plaintiff, however, construed the offer in a larger sense. By his answer of the 20 CASES IN CHANCERY. 10 2d of February, he accedes to the proposal, but evidently 1817. understands the proposal to be, that the ship, as well as -^^^^^^ cargo, was to be assigned, and that the assignment was to MESSONSIER cover his whole demand of 14,985 dollars, with interest. KAUMAS. He clearly mistook the terms as to the ship, but he had color for the latter construction. Kauman, by his letter of the 6th of February, appears to have communicated the answer of the plaintiff to G. S. G. and Co., for he says, that they cannot assign the ship, (and gives the reason,) but that they were about executing, in due form, the transfer of the cargo, poli- cies, and proceeds. Nothing is said as to what extent of demand *the assignment is to cover. It is only added, that [* 17 ] it was to be for the joint benefit of the plaintiff and K. This silence of G. S. G. and Co., on the 6th of February, after they had been duly apprized of the plaintiff's understanding of their proposal, and after they had corrected it, as to the ship, and only as to the ship, is decisive of their assent to his de- mand, that the assignment should cover his whole responsi- bility. I consider K., in this transaction, to have been as much the agent of G. S. G. and Co. as of the plaintiff. He was their mutual agent ; and when the assignment was made, on the 7th of February, and in general terms, without desig- nating any particular part of the plaintiff's claim to which it was to be confined, the construction is no less just than legal, that it covered his whole responsibility, to the amount of the 14,985 dollars. Here, then, the plaintiff acquired a right vested and absolute, by the assignment of the 7th of February, and nothing but some subsequent act of his, done freely, and with an understanding of all his rights, could deprive him of that legal security. But the plaintiff, when he came to be duly informed of the contents of the assignment, was dissatisfied that K. had taken it, not for the plaintiff alone, but for their joint benefit, and this led to some correspondence between them. This difficulty was, however, soon removed ; for Kauman, in his letter to the plaintiff, of the 14th of February, says, that the plaintiff was perfectly safe ; for though the transfer was in their joint names, yet it was intended only to secure the sur- plus to K., after the plaintiff was secured tJie whole amount of his claim,. We are next to see whether the plaintiff subsequently deprived himself of the benefit of this assignment. As it then stood, it was for the security of his whole demand, to be first and exclusively paid. This was precisely his declared object from the beginning ; and it is scarcely possible to be- lieve, that he would afterwards, intentionally and ^freely, [ * 18 / part with this great and just advantage, for a pro rata divi- dend, under the deed of the 28th of February. 21 18 CASES IN CHANCERY. 1817. The letters from the plaintiff of the 6th, 9th, 12th, 13th *^**~^s~^s and 14th of February, all speak the same language. They MESSONNIER all show his clear and decided intention to have the assign- KAUMAN nient as a cover for his whole demand, and to make that assignment a condition of his furnishing funds to take up the February bills. His object in sending on his friend Pas- caulfwas for explanation, while he was under the impression that the assignment was not for his exclusive benefit. This appears from his letter to Kauman of the 19th of February, in which he says, that the explanation given by K. that he was only to come in for the surplus, after the demands of the plaintiff were satisfied, superseded the necessity of send- ing on Pascaulf. It is worthy of notice, too, that, in this last latter, he relies upon the assignment of the 7th, and wishes to have it recorded, so as to give it due validity. The arrival of P. at Neiv-'York opens a new scene in the history of this transaction, in which the deed of the 7th of February is, some how or other, and certainly not with the consent or knowledge of the plaintiff at the time, put out of existence, and the plaintiff left to look for his indemnity, as a pro rata creditor only, under the deed of trust of the 28th of February. The plaintiff, by letter of the 14th of February, informs G. S. G. and Co., that the assignment of the 7th of February was not what was agreed- to, as it ought to have been in his name only, for the whole of his demand, and that he sent on his friend P., in order to settle the business in his name, to their mutual satisfaction, and he trusted that G. S. G. and Co. would give him the satisfaction he had a right to expect. This letter, it is admitted, contains all the powers of P., who was a Frenchman of advanced age, and so little versed in the English language, that an interpreter was requisite to explain [* 19] part of the conversations. *This is proved by Nathan, a witness for the defendant. Tt is pretty evident that the mission of P. was to obtain such security as the plaintiff had looked for under the deed of the 7th of February, which security he had discovered, by the explanatory letter of Kauman, of the 14th of February, (the same day on which the plaintiff had sent on P.,) did really exist under that assignment. If P. was to settle the business to their mutual satisfaction, the settlement was to depend upon their mutual ratification. That letter never authorized P. to give up a vested right under the deed of the 7th of February, until some new security was actually given, equiv- alent in its effects, or. at least, satisfactory to both parties ; and, certainly, when the letter of the 1 9th of February to K. was received, (which must have been, according to the course of the mail, on the 20th of February,} it superseded alJ 22 CASES IN CHANCERY. 19 further negotiation with Pascaulf. The plaintiff had then ratified the assignment of the 7th of February, and I consider every communical ion to_fiT. as equal to a communication with G. MESSOMXIEK & G. and Co., for he was as much their agent as the plaintiff's, K\UM \K in the whole negotiation. At what precise time the assign- ment of the 7th of February was given up by K. to G. S. G. and Co., to be cancelled, does not distinctly appear. If it was done before the new assignment was executed on the 28th of February, it was done with too much precipitation. No prudent man would part with one security until the substitute was prepared and executed. The defendant's witness, Seixas Nathan, says, that the new assignment was executed when it bore date, which is on the 28th of February ; and this was probably after P. had left New-York > on his return to the plaintiff. Yet it is singular, if not astonishing, to learn how G. S. G. and Co., and K., had arranged matters as early as the 20th of February. By a letter to the plaintiff of that date, Kauman says that G. S. G. and Co. wish to pay all their creditors alike, and refuse any new transfer to the plaintiff alone, and that he and P. *had already called on [ * 20 ] Mr. Jones to consult and agree about a new assignment to pay the plaintiff, with a number of other creditors, ratably. This letter was eight days before any new assignment was executed ; yet Kauman says, the first transfer, by this arrange- ment, was rendered, null and void. This letter was also written six days after K. had agreed that the deed of the 7th of February was for the prior and exclusive benefit of the f laintiff, and that he was only to take the surplus ; and it was written long after G. S. G. and Co. had declared that the plaintiff's claim should be privileged, if he would furnish remittances to take up the February bills. It appears to me, that G. S. G. and Co. had, by this time, discovered that the assignment of the 7th of February was inconvenient to them, ~ ,7 i though it had answered one of their objects, viz. the receipt of funds of the plaintiff to take up their February bills. It appears to me, also, that Kauman had become dissatisfied with his explanation of the 14th, that the plaintiff was to be first paid, and was the willing instrument of G. S. G. and Co. in destroying that assignment. Why declare so prematurely, that the first transfer had become null and void ? and why not arrest all this new arrangement, after the receipt of the plaintiff's letter of the 19th of February, saying that he was satisfied with the transfer ? The answer of Kauman, which is also the answer of G. S. G. and Co., says, the deed of the 7th of February was destroyed before the receipt of the letter of the plaintiff, of the 19th of February. Such a premature destruction of it is, in my judgment, a very strong mark of fraudulent design. 23 20 CASES IN CHANCERY 1817. P- says, that he was informed, on his arrival in New-York t ^*~^~+^/ by K., that the deed of the 7th of February was destroyed. MESSONNIER He denies that he had any authority to cancel that deed, or that he ever consented to it, or ever saw it, or that he ever IVAUMAN. < i TT saw or knew the contents of the second assignment. He never had or assumed any authority, and was only sent, as a friend of the plaintiff, to receive payment, or to take security [ * 21 J for the plaintiff singly. Seixas Nathan (who was *at that time one of the house of G. S. G. and Co.) contradicts the testimony of P. in several particulars, and says P. did agree to the deed of the 2Sth, and to the surrender of the first deed, and did act as the authorized agent of the plaintiff. There are several circumstances in the testimony of Nathan which affect its credit. He admits that P. left New- York for Baltimore the latter end of February, and, therefore, he probably left it before the execution of the second deed. He says that Mr. Jones asked P. if he was willing that all that had been done should be considered as void; and he said he was, and that the deed of the 7th was afterwards destroyed ; and yet Mr. Jones confesses that he never saw or heard of the deed of the 7th of February, until after the execution of the deed of the 28th of February. I cannot resist the impression, that the deed of the 7th of February was surreptitiously and fraudulently cancelled, by arrangement between G. S. G. and Co. and Kauman, and that Pascaulfwas not duly authorized, and never consented to destroy that deed, and that the plaintiff never gave his free and voluntary assent to it. The plaintiff, by his two letters of the 24th of February, insists on adhering to the deed of the 7th, and expressly dissents from the new arrangement, and expresses himself with the true feeling and just indignation of a man on whom the grossest imposition had been practised. His acquiescence, afterwards, in the destruction of the first, and in the substitution of the second assignment, was the acquiescence of despair, and a submission to destiny. If the thing be not practicable, says he, (that is, to be secured according to his original expectation and demand,) 1 must at last submit. In one of these letters, he says, he will not provide for the March bills, without the security of the 7th of February; and yet, in a letter of the 1st of March, K. informs him that G. S. G. and Co. hinted that unless he would [ * 22 J provide for these March bills, he would not *be considered a privileged creditor. This was an unjust threat and cruel sarcasm to an injured creditor, whom they had made the victim of their intrigues, and whom they held in a kind of dure'ss. To talk of the plaintiff's free and voluntary ratifi- cation of the second assignment, and surrender of the first, 24 CASES IN CHANCERY. 22 is idle and absurd. Every thing that he said afterwards was 1817. extorted from him by necessity. His letter of the 26th of \^*^s~*^s March speaks of his ratable share of the proceeds ; but in MESSONNIEK his letter of the 13th of April, he requests payment out of KAUMAN the proceeds, if not of the whole, at least of part of his demand ; and in his letter of the same date, to G. *S". G. and Co., he claims from them the payment of his advances out of the proceeds. These letters cannot conclude him from re- sorting to his title under the deed of the 7th of February. They were written under mistaken impressions, that his rights had been sacrificed and lost, beyond redemption. His dis satisfaction and constant uneasiness, under the pressure of the impositions practised upon him, are very apparent from those very letters ; for, in that of the 13th of April to Jones and Kauman, he extends his demand to the whole of the pro- ceeds, and so he does in his letter, of the same date, to G. G. and Co. My opinion, accordingly, is, that the plaintiff is entitled to the full benefit of the assignment of the 7th of February, 1311, and in preference to the defendant Kauman; and that he is to be first and exclusively paid, out of the property therein assigned, to the extent of his whole demand, and that the deed of trust of the 28th of February, 1811, so far as it is inconsistent with the provisions in the deed of the 7th, or with the right of the plaintiff to be paid as aforesaid, is, and ought to be, null and void. That the plaintiff may take such an order of reference as the nature of his case may seem to require. That the defendant Kauman account for the pro- ceeds, under that assignment, with costs of suit, and that the bill, as to the defendants Gompert * Gomperts, Israel B. ( * 23 ] Jacobs, and Seixas Nathan, be dismissed without costs; and that the bill, as to the other defendants, viz. Samuel Jones, /MM., and the defendants who are creditors, be dismissed with costs, to be paid out of the surplus funds, (if any,) after the tJ.)mand of the plaintiff has been previously paid. Decree accordingly. VOL. III. 4 25 CASES IX' CHANCERY. 1817. ^-v >* LAWRENCE v. DALE. October I, [*24] LAWRENCE and others against DALE and others. [Affirmed, 17 Johns. 437.] Where two persons are joint proprietors of certain patent rights and privileges, as for navigating vessels by steitm, one of them, on the mere ground of such joint interest or concern, is not responsible for any special contract, or undertaking, entered into by the other with any assignee of such right or privilege, not connected with the enjoy- ment and exercise of their common privilege under the patent. Where one party intends to abandon or rescind a contract, on the ground of a violation of it by the other,,he must do so, promptly and decidedly on the first information of such breach. If he negotiates with the party, after knowledge of the breach, and permits him to proceed in the work, it is a waiver of his right to rescind the contract. The defendants conti acted with the plaintiffs to be responsible for the perfect construction and performance of certain steam-boats, to be built on the river Ohio, so that they should carry one hundred tons burden, and run four miles an hour in still water : Held, that the plaintiffs could not, after the boats were built, rescind the contracn ... their part, and recover back the money advanced by them to the uc- fenclants, on the alleged ground that the boats drew too much water to navigate the river, without having first put the fitness of the boats to navigate the river, in the manner agreed on by the parties, to the test of experiment. THE bill, which was filed on the 28th of November, 1815, stated, that the late Robert Fulton, deceased, (whose ex- ecutors, Harriet Dale and William Cutting, were made defendants,) in his lifetime, about the llth of February, 1809, and the 9th of February, 1811, obtained certain patents, for applying the power of steam to the purposes of Navigation, in which patents the late Robert R. Livingston was equally interested, by virtue of an agreement, entered into between them, in 1802, (set forth in the bill,) and, also, by one or more assignments of the said patent rights, from Fulton to Livingston, and supposed to be in the power of the defendants, Edward P. Livingston and Robert L. Livinsgton ; and that in consequence thereof, and by virtue of certain arrangements between them, they became copartners, and equally concerned, in the construction and employment of steam-boats, and in all undertakings and establishments therewith connected; and that they erected, at their joint expense, and for their joint benefit, workshops, &c. in the state of New-Jersey and elsewhere, for building and repairing steam-boats : and, particularly, did erect such workshops and buildings, on their joint account, at or near Pittsburgh, in the state of Pennsylvania, for the purpose of building steam- boats to navigate the Ohio and Mississippi, and other waters communicating with those rivers. That the said copartners. in the beginning of the year 1813, jointly published and 26 CASES IN CHANCERY. 24 circulated proposals, throughout the United States, inviting 1817. persons to form companies and establish steam-boats on the ^*^^*^ navigable waters of the United States, under the patents of LA\\K>;NH: the said copartners, &c. And one or more companies DALE. having been formed, for the purpose of navigating the Ohio and Mississippi, below the falls, the said copartners, at their work-shops, at or near Pittsburgh, actually built, by their own workmen and engineers, and under the superintendence of their agents, the steam-boats required for -the use of the companies so formed, who, however, furnished the requisite funds. That Robert R. Livingston died on the 23d of February, 1813, and all his rights and privileges in the said copartnership became vested in his widow, and his two sons- in-law, as the husbands of his surviving children, and subse- quently, after the death of their mother, in October, 1813, in the said Edward P. Livingston and Robert L. Livingston, defendants, who thereafter possessed and enjoyed all the [ * 25 right, interest, and property, of the said R. R. L. deceased, in the said copartnership. That the principal, if not ex- clusive, management of the concerns of the said copart- nership, after the death of the said R. R. L., devolved on the said Robert Fulton, who became the active partner, and conducted the same for the joint benefit, and upon the joint responsibility, of himself and of the said representatives of the said R. R. L. That for their joint benefit, and in order to connect with the line of steam-boats running from Louis- ville to New- Orleans, another line of steam-boats, to run above the falls of the Ohio, from Pittsburgh to Louisville, the said Fulton, to facilitate the formation of a company for that purpose, employed Benjamin H. Latrobe as an agent, who issued the proposals set forth in the bills, with the consent and approbation of F. and the defendants E. P. L. and R. L. L., who were, then and afterwards, equally concerned with F. in the property and concerns of the said copart- nership, and received a proportion of the profits thereof; which proposals were, soon after, accepted and agreed to by some of the plaintiffs, and others, who formed themselves into a company to carry the same into effect, and sub- scribed the same, with the sums paid by them respectively, upon a printed copy of the said proposals. That the said E. P. L. and R. L. L. knew of the said proposals, and must have consented to, and approved of them, as they never gave any notice whatever of their disagreement to them, or of their unwillingness to be bound by them. That of the one hundred shares specified in the first articles, eighty-seven were subscribed in New-York, by certain of the plaintiffs, whose names were set forth in the bill; and the thirteen rsmaining shares were reserved by Fulton, with the intention 27 26* CASES IN CHANCERY. 1817. t na * they should be subscribed for by persons resident m s_ - ^ x/ ~>^x Pittsburgh and its vicinity, and that any facts in regard to LAWRENCK them are unknown *to the plaintiffs. That the plaintiffs DALE. P a ^ * Fulton, as the acting partner, not only the full amount of their respective subscriptions, but a large sum of money over and above the same, to which they were induced, after considerable progress had been made in building the steam- boat, for the purpose of adding to the original plan a. freight- boat, to be towed by the steam-boat, upon the plan and at the solicitation of F. That in consequence of this alteration of the original plan, a more formal agreement was entered into between F. and E. P. L. and R. L. L., of the first part, and the plaintiffs, of the second part, dated the 7th of January, 1815, which was executed only by Fulton, of the one part, and several of the plaintiffs, who represented 56 shares ; but which, as the bill stated, was to be executed, as soon as convenient, by E. P. L. and R. L. L., and the rest of the plaintiffs. That the plaintiffs, in proportion to their respective interests, advanced to F., as acting partner, in divers sums, and at various times, which were particularly set forth in the bill, to the amount of 33,660 dollars, over and above the sums subscribed by them, and had also expended 100 dollars in obtaining an act of the legislature of Pennsyl- vania, in favor of the plaintiffs and F. and E. P. L. and R. L. L. That in February, 1815, F. died, leaving his wife and William. Cutting, his brother-in-law, two of the defend- ants, trustees of his estate, and guardians of his children, under his will, made on the 13th of December, 1814, and that the widow had since intermarried with the defendant Dale. That the said steam-boat had never been completed, and that it would require about 15,000 dollars for that pur- pose. That she has been built in an unskilful and unwork- manlike manner, and is, moreover, from her great draught of water, wholly unfit for the navigation contemplated in the proposals, and would be, therefore, if completed, of no use to the plaintiffs. That in consequence thereof, and of the lapse of a great portion of the exclusive privilege of the * 27 ] patentees, by which their *hope of remuneration is greatly diminished, the plaintiffs are unwilling to make any further advances under the agreement ; and they insisted that they ought not to be called on to make further advances, but have a right, in consequence of the defaults of Fulton and L. in their lifetime, and of the defendants since their deaths, to apply for a dissolution of the contract, and for a repay- ment of their money. That the plaintiffs had, in consequence of those defaults, made a demand in writing of the defend- ants, of the repayment of the principal and interest of the money advanced, and waiving any claim to damages. 28 CASES IN CHANCERY. 27 The bill charged that the defendants were not only jointly 1817. interested in the patents, but in the different shops and build- ^^^^^^ ings for constructing steam-boats, and especially in those at LAWRENCK Pittsburgh ; and to show this joint interest, the bill set forth Dj ^ E articles of an agreement between F. and E. P. L. and R. L. L. in July, 1814, expressly recognizing their joint interest and concern, under the agreement of the 10th of October, 1802, between F. and R. R. L., and referring also to the boat building by the defendants, or their agents, for the plaintiffs. That Latrobe was the agent of all the patentees, in publishing the proposals, and acted with their knowledge and approba- tion ; and the stipulation that the boat should be built under the direction and responsibility of the patentees was a mate- rial inducement to the plaintiffs to form the company, and to engage in the boat. That before any advances were made by the plaintiffs, the proposals by Latrobe were read by E. P. L. and R. L. L., who knew that the plaintiffs were acting on the faith of those proposals, but never made known their disapprobation, or disavowal thereof; and that even if La- trobe and Fulton acted without the authority of E. P. L, and R. L. L., yet their silence and concealment of the fact was, under the circumstances, fraudulent, and rendered them responsible to the full extent of the proposals. *The bill prayed that the defendants might be decreed to [ * 28 j refund to the plaintiffs all the moneys advanced by them, with interest and damages ; that the executors of Fulton might admit assets sufficient, or render a true account of the same; that the plaintiffs might be relieved from the perform- ance of the covenants contained in the proposals, or in the agreement of the 7th of February, 1815, and that those propo- sals, and that agreement, might be cancelled, and that the partnership formed thereby might be dissolved, and for gen- eral relief. The answer of the executor and executrix of Fulton ad- mitted the material facts stated in the bill. E. P. L. and R. L. Livingston also put in their answer, in which, among other things, they denied that the work- shops and establishments at Pittsburgh, as stated in. the bill, were erected and owned by Fulton and R. R. L., but thev have heard, and believe, that they were erected by the Mis- sissippi Company, or their agent, and are now owned, or have been sold, by them; and that the boats for the purpose of navigating the Mississippi and Ohio, below the falls, were built, as they believe, by the company or their agents, and not by the agents and workmen of Fulton and Livingston. That if Fulton took upon himself to employ agents or workmen for the purpose, so as to become responsible for their skill and fidelity, they are satisfied that he did it without the knowledge 29 28 CASES IN CHANCERY. 1817. or approbation of R. R. Livingston, in his lifetime, so as to ^^-^~*^s create no responsibility therefor on his legal representatives ; LAWRENCE and they denied that they had incurred any such responsibility y^'j. by any act or consent of theirs, or by any act or omission of > n't. >n, by their approbation or authority. They admitted that part of the funds for the construction of the said boat or boats was furnished by the companies, but they stated that there was a deficiency which was supplied by, or on the credit of Fulton, in the first instance, but in which they, by a subsequent | * 29 ] arrangement, became interested with Fulton, *and the amount of which advances was still due to them and to his estate. That the defendants were, in a great measure, ignorant of the acts and transactions of Fulton, in relation to steam-boats in other places ; and they insisted that if he had entered into such engagements and responsibilities as are stated in the bill, they are in no respect personally liable therefor, except so far as they may be so, as a necessary consequence of their interest in the patents and exclusive grants relative to steam- boats and the construction and employment thereof; and they positively denied that they, or Mary Livingston, to their knowledge, ever did, directly or indirectly, authorize Fulton so to act, or to enter into any such negotiations or contracts as are stated in the bill ; and they denied that Latrobe ever was employed by them, or by Fulton, with their consent or knowledge, as agent for the purposes, and with the powers, mentioned in the bill, or in any way to make them answera- ble to the plaintiffs for his acts. They admitted, however, that they had heard that F., or some person for him, but who they did not know, had issued proposals to establish, by means of a company, a steam-boat on the Ohio above the falls ; but never having seen them before they were issued, nor since, unless transiently, and without examination, in print, and having no copy of them, they could not speak with cer tainty as to them. That they did not know when they were issued and circulated, but if at the time stated in the bill, it was before they were interested in steam-boat rights and property ; and so they could not be bound by such proposals. They denied that they were ever consulted at all in relation to such proposals, or that the said Mary Livingston, to their knowledge or belief, was consulted, or had any personal knowledge of, or ever, in any way, assented to them. They denied all personal knowledge of the formation of the com- pany, by the plaintiffs, under the said proposals, though they [ * 30 ] had heard *of, and believed the fact ; and they denied all agreement with the plaintiffs, or either of them, or by F., never having given him any authority, expressly or tacitly, to bind them, in any manner, to the terms of the said proposals or agreement, or for the appointment of an agent at Pitts 30 CASES IN CHANCERY. 30 burgh, or elsewhere; and they denied having known or 1817. adopted the said proposals before the formation of the said ^^-^~**-s company ; and they admitted that they had never expressed LAWRENCK any disapprobation of the proposals, or taken any measure to caution the plaintiffs, or others, that they did not intend to be bound thereby, &c. That they were ignorant of the in- ducement which led to the agreement of the 7th of January, 1815, stated in the bill; that they were never, at any time, consulted on the subject, nor did they or any person, by their authority, ever consent to execute that agreement, nor were they ever requested so to do ; and that they were not, there- fore, bound to fulfil the same, as parties thereto. They ad- mitted their joint interest with F., or his representatives, to the amount of two thirds of the interest of R. R. L., in the rights, privileges, and property of steam-boats, in the lifetime of Mary Livingston, and in the whole of that interest since her decease. That the machinery for the boats, as they are informed and believe, was made in new work-shops, erected at or near Pittsburgh, by the Ohio Company, or their agent, Latrobe, in which work-shops, the said defendants never, to their knowledge or belief, had any interest. That Latrobe never was the agent of the said defendants, unless he could be made their agent without their knowledge or consent, ex- cept so far as they may have been interested in the said steam and tow-boats of the plaintiffs, in consequence of their being part owners of the patent rights and privileges. The material parts of the evidence are sufficiently stated in the opinion delivered by the Court. *The cause was argued in July last, by T. A. Emmet and J. L. Riker, for the plaintiffs, and by Riggs, S. Jones, jun., and Baldwin, for the defendants. The cause stood over for consideration, and the following opinion was, this day, delivered by the Court. THE CHANCELLOR. The representatives of Fulton, and the two Livingstons, place their defence on very different grounds. The latter deny that Fulton had any authority to bind them, in whatever responsibility he may have incurred in his negotiations with the complainants. I shall first consider the demand as it respects the defend- ants Edward and Robert Livingston. 1. The only part of the printed proposals issued by La- trobe, in the spring of 1813, which contains any thing like a special covenant, is in the 3d and 4th articles, in which it is declared, that the boat shall be calculated to carry freight, and shall be built under the immediate direction of the pat- entees, who shall appoint an agent at Pittsburgh for the 31 [*31J (A cber 1. 31 CASES IN CHANCERY. 1817. purpose, and that the patentees were to be " responsible for v^^vx-^x the perfect construction and performance of the boat." In LAWRENCE the agreement which was afterwards made and executed v - between Fulton and a majority of the company, in respect to their shares, the same engagement, with some additions, was entered into, so far as Fulton was concerned. He was to be responsible for the perfect construction and performance of the boats, so as to carry at least 100 tons burden, and to run at least four miles an hour in still water. The whole grava* men (if any) to be deduced from the pleadings and proofs, appears to me to consist in the failure of the engagement as to the construction and performance of the boat. The Livingstons deny that Latrobe was their agent, or that he made these proposals by their authority, assent, or knowledge. They equally deny any authority in Fulton to bind them by such a contract. [ *32] *The great point in the case is, whether there is evidence of any such authority existing at the time, or of any subse- quent recognition of it. The contract of partnership entered into between the late Robert R. Livingston and Fulton, on the 10th of October, 1802, does not appear to contain any power that touches the case. That contract provides for the construction of a pas- sage-boat, moved by the power of the steam-engine, to be used on the Hudson, and that the patent for such a boat should be taken in the name of Fulton, and the property thereof equally divided, and also the emoluments of it ; and that the number of boats, offices, and agents, should be aug- mented or diminished, as the parties should think proper, and that if either party should die within the 14 years, or before the termination of the patent, his heirs or assignee should be considered an active partner. This was a very special partnership, and certainly con- tained no power in one party to bind the other, by a cove- nant as to the construction of boats to be built by third persons for their own use, under a patent license. This was the only instrument declaring the association between Livingston and Fulton, during the lifetime of the former. But, afterwards, on the 25th of July, 1814, there was a new agreement between Fulton and the two represen- tatives of Robert R. Livingston, deceased. That agreement recited that they were sole proprietors and acting partners in the rights and privileges of steam navigation, for which patents had been issued, and divers statutes passed in favor of the parties, in pursuance of the agreement of October, 1802, and that they were desirous to modify the articles, as to the Hudson river, and to explain their rights in certain particulars, leaving the articles in force , in other respects 32 CASES IN CHANCERY. *33 The parties to that agreement, in the 7th and 8th articles of 1817. it, entered into certain stipulations, which referred to the <^^-~^~^, personal services rendered *by Fulton, in the concerns of the LAWRENCE general establishment, and in superintending the making and DA V ^ completing the steam-boats then building, viz. one for the Mississippi, one for the Ohio, and two for the Hudson; and the 7th article evidently contemplated, that the profits of those personal services would have been a joint concern without the modification there agreed to. The plaintiffs aver, that the boat alluded to in those arti- cles, as building on the Ohio, was the one in question in this case, and the answer of the representatives of Fulton admits the fact, and the answer of the others does not deny it. They admit that the article may allude to their interest in those uoats, as part owners of the patent rights and privi- leges. But if it does, what then ? The Livingstons had an interest, no doubt, under their articles of 1802, in all emolu- ments resulting from the patents for steam navigation,, and the sales and licenses under them ; and the personal service? alluded to in those articles were, no doubt, those bestowed on subjects and property in which the parties had a common interest. But did that interest bind them to Fulton's con- tracts for building boats ? I think it would be dangerous to push to this extent the authority of each partner under the articles of 1802, or the modification made, or construction given to them, by the agreement of 1814. A joint interest in a patent may exist in full force, and yet have no connec- tion with a special covenant to construct a boat for the ben- efit of an assignee. Such a power is no necessary part of the joint concern. The Livingstons may have an interest in all the branches of steam navigation arising under the patents, and even in the personal services of Fulton bestowed on their common concern, without being bound by his special under- takings. There must be some other authority to bind them than what is to be deduced from the articles of 1802. The modification, in 1814, gave no new power to each partner. This was clearly not within its intention. It only regulated *their then existing interests. A covenant to superintend the [ * 34 building of a boat for the benefit of a company, was quite a separate transaction. It had no more connection with the enjoyment and exercise of their community of privileges under the patent, than if there had been a covenant to pro- cure the wood and iron for the boat, or to superintend the navigation, and freight, or cargo, of her, when in service. The price of a license to build and use a steam-boat, may enure to the defendants jointly ; so if an interest be reserved in the boat in connection with the purchasers, that interest might be joint. These are plain partnership rights, which VOL. III. 5 33 34 CASES IN CHANCERY 1817. are intelligible to all. But if, upon the sale, the purchaser v.^^^-.^x should have contracted with Fulton, as he would with a LAWRENCE shipwright, to build the boat, or as a captain to navigate her DALE. afterwards, would any person have naturally conceived that such a contract was also a partnership business, and bound equally all persons interested in the patent ? These are, in their nature, personal, not partnership concerns, arid to make the partnership liable, a special agreement from the part- ners must appear. There must be some authority beyond the mere circumstance of partnership, to bind the Livingstons to this covenant. Though Latrobe subscribed his printed proposals as agent for the Ohio steam-boat, and for the patentees, there is no evidence that the Livingstons ever authorized or acknowl- edged his agency. He was the agent of Fulton, and of him only. Not a witness traces any act or confession to the Liv- ingstons, that contains the least recognition or acknowledg- ment of any authority from them, either in Latrobe or Fulton, to issue those proposals, or to carry them into effect. Those witnesses who understood or believed that the Livingstons were jointly concerned in circulating, or in avowing or in acting under those proposals of Latrobe, do not give us a single act or confession of theirs, to warrant the conclusion or belief. The expenses were defrayed by Fulton, and the [ * 35 ] drafts were all upon *him. He declared to Hoffman, a clerk of the defendants, that the Livingstons were not interested in the expenses of that boat, and they told that witness the same thing. The only circumstance from which they could possibly be charged is, that, knowing of those proposals, they preserved silence, without giving notice to the plaintiffs, or to the public, that they were not bound by Fulton's engage- ment. But what reason had they to presume that any person was in an error on that point ? We have no evidence that the plaintiffs were imposed upon by that silence. The knowl- edge of the contract is not traced up to the Livingstons, at any very early period of it. They had no interest whatever in the patents, when the proposals issued, and were made known in March, 1813. The interest of the late Robert R. Livingston was then vested, by will, in his widow. This will and its contents the defendants were called upon by the bill to disclose, and it is decisive that the proposals of Latrobe could not have been their proposal. Their existing rights did not accrue until October, 1813, and by that time the company was formed, and Latrobe, as Fulton's agent, had commenced the building of the boat. The case has no anal- ogy to those in which silence is construed into tacit assent, and as evidence of imposition. These defendants never came 34 CASES IN CHANCERY. 35 in contact with the operation. They were never consulted 1817. or applied to on the subject. These two defendants were ^*r-^~*^ well known to most of the plaintiffs, and accessible to them LAWRENCK almost daily ; and yet, while this contract between the plain- D^ LE tiffs and Fulton was made, and was carrying into operation with great expense, and much correspondence and negotia- tion, for the space of two years, not one solitary communica- tion was made from either of the plaintiffs to them. The plaintiffs dealt with Fulton exclusively, and took no notice of these defendants ; yet they now contend that those defend- ants were parties to their contract, and equally responsible *\vith Fulton. I do not think that the plaintiffs are entitled [ * 36 ] to complain of silence. 2. But admitting that the Livingstons were bound equally with Fulton, the next point to be considered is, Were the plaintiffs entitled, under the circumstances of the case, on the 25th of April, 1815, to abandon the boats, and to call upon the representatives of Fulton to refund the moneys they had expended, with interest ? The plaintiffs cannot justify their attempt to rescind the contract from any delay in the progress of the work ; for after the death of Fulton, they assumed the business themselves, and directed CooJce, their agent, to press on the work with all diligence, and to start the boats as soon as possible. This is what one of the plaintiffs writes, on the 29th of March, 1815, as secretary to the company, after stating that the company had met and taken a view of the whole case. It is also to be observed, that there was no time limited, in any contract on the subject, for the completion of the boats. Nor does it appear to me that the plaintiffs can be permit- ted to set up the extraordinary expenses incurred under the agency of Latrobe, as a justifiable cause for rescinding the contract. There is some explanation given of the cause of an excess, far exceeding the original calculations of the plaintiffs and of Latrobe, in the fact, that the then exist- ing war had rendered labor and materials, especially iron, extremely dear. This is so stated by one of the witnesses. But though I can readily suppose the plaintiffs were afflicted by their mistaken calculations of the expense, and that there was very justifiable cause for removing Latrobe, yet I do not perceive any specific engagement of Fulton on this point. He was to be responsible for the construction, but not for the expense of the boat. And when the plaintiffs, by their reso- lution of the 9th of September, 1814, requested the discharge of Latrobe, and he was accordingly discharged, and another agent, *agreeable to them, appointed, the plaintiffs may be [ * 37 J considered as renouncing their right to rescind the contract, on the ground of his extravagant expenditures. Above all, 35 37 CASES IN CHANCERY. 1817. are * ne y precluded from this objection, by their new agree v^^-x^^^ ment with Fulton, on the 7th of January, 1815, and which LAWRENCE was signed by a majority of the plaintiffs in interest. They DALE. therein acknowledge that the expenses had then exceeded, by 12,000 dollars, the original capital stock, and yet they deter- mine to persevere on a new plan, and with still increasing expenses. I see no ground on which they could justifiably abandon the contract, unless it should be for a breach of it, as to the construction of the boat. There is no other specific engage- ment by Fulton, either in the printed proposals of Latrobt, or in the articles of agreement of January, 1815, which they can allege to have been broken. The boat, according to Latrobe's proposals, was to be built under the direction of the patentees, who were to appoint an agent for that purpose, and who were to be responsible for the perfect construction and performance of the boat. Ful- ton assumed these proposals as his own, and recognized La- trobe as his agent in making them. He was, consequently, responsible to the company for the fulfilment of this contract ; and how was it performed ? An agent was appointed for the purpose, and the building of the boat commenced at Pittsburgh, under his agency, in October, 1813. We hear no more of the business, until July 10th, 1814, when Fulton wrote a letter to Latrobe, (for I have looked at every paper without nicely weighing its com petence, in order to inform myself of every fact,) and in that letter he acknowledged that a boat was to be built, in the best possible manner, to suit the waters of the Ohio, arid that Latrobe had misapplied funds, by building shops, when Fulton had them of his own. In September following, the company met, and insisted that Latrobe should be discharged, and say [ * 38 ] that they would not ^advance any more funds until he was discharged. It was, accordingly, done ; and the great head of complaint was his expenditures, and not the construction of the boat. David Cooke was appointed his successor, and the steam-boat was launched at the time Latrobe was dismiss- ed. The work then goes forward, and, for any thing that ap- pears in the case, to the satisfaction of both parties, until the 7th of January, 1815, which forms a new and important epoch in the history of the business. A majority in interest of the com pany, and Fulton, enter into a new agreement, in which, for the first time, the company appear to assume form and sub- stance as a regular copartnership. We cannot doubt but that they possessed, at the time, all the knowledge that be- longed to the subject. They knew what had been previously expended, and how extravagantly it had been expended, (if extravagant at all,) by Latrobe, and they knew the apparent 36 CASES IN CHANCERY. size and construction of the boat, and that she was already 1817. afloat. It cannot be supposed that they were ignorant of all this ; and they must have known, as well as Fulton, the depth of the waters of the Ohio, for this was a matter of public notoriety, and was a knowledge essential to the business they had assumed. They, then, armed with this information, enter into a new and very special agreement with Fulton, in which it was contemplated, no doubt, that the other defend- ants would become parties. This agreement recites the sub- stance of the former proposals of Latrobc, under which the company had formed themselves and hitherto acted, and it declares that the building of the boat had been changed in plan, so as to add thereto a freight-boat, to be towed ; and, notwithstanding the expenditure then made of 37,000 dollars, they agree to advance the further moneys requisite to finish the boats, and they preserve the responsibility of Fulton, for the perfect construction and performance of the boats. I cannot but be of opinion, that this new agreement super- seded, altogether, the claims of the parties under the *vague [ * 39 and undefined terms of the printed proposals. It was the substitution of a new and formal contract to that preliminary arrangement, in which the plaintiffs, for the first time, appear distinctly as a regular associate body. They adopted the boat as she then was ; and the question is, whether there was a failure in the construction of the boat, in the April following, so as to warrant the plaintiffs to rescind or abandon the contract, and call for the return of their money. The articles in January seem to have defined the meaning of the engagement to be responsible for the perfect con- struction and performance of the boats, by adding thereto these words, so as to carry, at least, one hundred tons burden, and run, at least, four miles an hour in still ivater. Nothing is here said as to her draught of water. CooJce says she drew three feet of water when empty. This fact must have "been known when the agreement in January was made. There is no doubt that the parties adopted the plan of the tow- boat, to meet and avoid the inconvenience of the weight and draught of water of the steam-boat ; for Butler testifies, that in 1814, or 1815, Fulton suggested the plan of the tow-boat, because it was ascertained that the steam-boat, with her cargo, would draw too much water for the Ohio. But, considering the covenant without any such accom- panying explanation, and as meaning, by a perfect con- struction and performance, a boat suitable to the waters of the Ohio between Pittsburgh and Louisville, the question occurs, Have not the plaintiffs adopted the boat as it was ? and are they not precluded from saying she was too large ? The difficulty and uncertainty of navigating on the Ohio, 37 39 CASES IN CHANCERY. 1817. seems to. have occurred from the beginning. The original ^*~^~^/ proposals of Latrobe contemplated that the boat would LAWRENCE " lie by " in July and August, on account of the lowness ol DALE. tne wa ter, and that she would not make more than five o. f * 40 1 * s ^ x tr ip s > eacn wav > during the year. The parties were, accordingly, when they subscribed these proposals, duly apprized of this difficulty, and of the inevitable interruption of the navigation ; and all their contracts must be construed in reference to that navigation as it was then known and declared. The lamented death of Fulton occurred soon after the execution of the agreement in January, and the plaintiffs then took into their own hands the care of finishing the boat, and pressed on the work, with zeal, until the 26th of April, 1815, when, in consequence of information re- ceived from Stoudenger, they came, suddenly, to the reso- lution, that the steam-boat would not answer, and that the contract was, consequently, void, and demanded repayment of their money. What information they had received, which satisfied them the boat would not answer, is not stated. Nothing is shown to have existed then, which was not known to them six months before ; and the only complaint in the letter announcing the resolution to abandon, relates to the expense. All the information we have, on the head of the failure of the contract in respect to the construction of the steam- boat, (for there is no complaint of the tow-boat,) is derived from the three witnesses at Pittsburgh. Frisbie, who under- took to finish the carpenter's work of the boat, thinks the former work not quite so good as his own, though it would have borne inspection, and the boat was a little hogged in launching. CooJce says the boat was, upon the whole, pretty well built, and better than t*he well-known Hudson river boats, Car of Neptune and Paragon ; and that the machinery was good. There is, then, no real objection to the workmanship of the boat, to justify the relinquishment of the contract ; and when the plaintiffs said she would not answer, they most certainly had no such imperfection in their view. It was the depth of water she drew to which they alluded. [ * 41 ] *Frisbie says, that the boat, according to her original plan or contrivance, would have drawn too much water to have rendered her fit or convenient for the navigation intended for her ; that she might have made one trip in the spring, and one in the fall ; and, if ready when the waters were high, have made several trips in the year. Rowe speaks to the same effect Cooke says, that the boat drew three feet when empty, and when loaded would have drawn four feet ; and that she could have navigated the Ohio, except in very dry 38 CASES IN CHANCERY. 41 seasons, or in winter, and could have run, on an average, six iS17. months ; but he admits that a boat, to navigate to the best ad- ^r- v^s vantage on the Ohio, ought not to exceed three feet draught. LAWRENCE The answer to this testimony is, that the parties knew, U^LE. when the boat was launched, in September, 1814, what water she would draw when empty. They modified the contract, and altered their plan in January following, to suit that draught of water, by adding the tow-boat ; and I cannot see what right or equity they have to complain now of the original construction of the boat. If they intended to have abandoned the boat for that cause, they should have done it when she was launched, and when an, accurate judgment could have been formed, and probably was formed, as to the water she was to draw. Instead of that, they go on and adopt her as she was, and continue their work upon her, and, afterwards, vary their original plan to meet the size and weight of the vessel. The construction of the boat was the same then as when they gave up the contract. But there is a material defect of testimony on the point of the navigation of the Ohio. Frisbie says he is not well acquainted with that part of the Ohio between Pittsburgh and Louisville, and he speaks from the information of others. Roive says, also, that he is not well acquainted with the waters of the river; and all that Cooke knows seems to be from inquiries of others. There is the same want of *precise and certain knowledge on this subject, in the case [ * 42 ] before us, as there was when Latrobe issued his proposals, and gave his opinion as to the facility of the navigation of the Ohio. We have no chart, or soundings of the river, or testimony of men accustomed to navigate it. We have no actual experiment to inform us how far the boat was adapted to the river. There is no fraud set up in this case, as a reason for re- scinding the contract. There were no representations as to expense, however innocent and however mistaken the calculations, but what the plaintiffs, with full knowledge of the fact, and of all the circumstances, have, again and again, waiv.ed ; and if the boat was of so large a construction as to render her, in a great degree, unfit for the use intended, they should have taken their stand on the discovery of that con- struction, which discovery was made known to them, (as far. at least, as it is now made known,) when the vessel was launched. If the law allows a party to abandon a contract while in Jieri, he ought, at least, to act promptly and decidedly, on the very first discovery of the breach. If he negotiates with the party afterwards, and permits the work to go on, he certainly waives all right to abandon. There is not a cause to contradict this doctrine, which is founded on 39 W CASES IN CHANCERY. 1817. tne plainest principles of justice; and if there had been nc v^x- v-**^ waiver, nor adoption of the boat, I should still think the in the Matter of testimony of the boat's unfitness for the Ohio too imperfect. ROBERTS. to justify so extraordinary a measure as the absolute renun- ciation of the entire contract. Having carried the work so far, I think they ought to have brought the question of the fitness of the boat to the waters to the test of experiment. It does not appear, to this moment, but that the steam-boat, with the aid of the tow-boat, might have performed as many trips in a year as was in contemplation of the original pro- posals. Instead of waiting for a trial, the plaintiffs, in a moment of despair, and duly admonished of the fallacy and [ * 43 ] *danger of such speculations, give up the contract, and leave the boats to be sacrificed on execution, and now call upon this Court to decree the repayment of their money from the representatives of Fulton. I feel and regret their misfortune ; but I cannot transfer that misfortune to others, without better evidence than this case affords. The bill, as to all the defendants, must, consequently, be dismissed ; and as to the two Livingstons, it must be dismissed with costs. Decree accordingly. In the Matter of ROBERTS, a Lunatic. [Applied, 7 Paige 267; 9 Id. 403, 442. Criticised, 6 Daly 51.] A commitee of a lunatic is entitled to an allowance, by way of com- pensation for his services, in receiving and paying out moneys, within the equity of the statute, (sess. 40. ch. 251.) authorizing this Court tc make a reasonable allowance to guardians, executors, and administra- tors, for their services. Rule as to the rate of allowance to guardians, executors, and adminis- trators. Octobers. PETITION of Nehemiah Alien, the committee of the lunatic, praying for an allowance for compensation, and accompanied with a master's report, stating the account of the committee, and that he had received 1,906 dollars, and paid out 1,158 dollars, in small sums, and that five per cent, on the whole sum paid out and received would be a reasonable allowance. E. W. King, for the petitioner, contended, that the case was within the equity of the act of the 15th of April, 1817, (sess 40. ch. 251.) which declares, "that it shall be lawful 40 CASES IN CHANCERY. 43 for the Court of Chancery, in the settlement of the accounts of guardians, executors, and administrators, on petition or otherwise, to make a reasonable allowance to them for their in the Matter of services, as such guardians, executors, or ^administrators, ROBERTS. over and above their expenses, and that, when the rate of such allowance shall have been settled by the chancellor, it shall be conformed to in all cases of the settlement of such accounts." THE CHANCELLOR thought the case within the equity of that statute, and adopted the following rate of compensation, as reasonable, it being higher than the allowances to the masters and registers in this Court, in respect to the receipt and payment of moneys, and yet not so high as to inflame the cupidity of such trustees, viz. Five per cent, on all sums received and paid out, not ex- ceeding 1,000 dollars (i. e. 2 1-2 percent, for such sums received, and 2 1-2 per cent, for such sums paid out.) Two and an half per cent, on any excess, between 1,000 dollars and 5,000 dollars. One per cent, for all above 5,000 dollars. This allowance would accordingly produce, on an estate of 10,000 dollars, the sum of 200 dollars, viz. The 1st, $ 1,000 $50 Rule of allow- ance to euar- 2d, 4,000 100 dians, efecu- 3d, 5,000 . ... 50 tors > Md ad ministrators. $ 10,000 $ 200 N. B. On the 16th of October, 1817, a general rule was passed, establishing the above allowance to guardians, ex- ecutors, and administrators. VOL. III. 6 41 45* CASES IN CHANCERY. 1817. <*-N/-^ M'lNTYRE V. MANCIUS. October 2. [*46] *M'!NTYRE and others against MANCIUS AND BROWN. [Reversed, 10 Jolius. 592.] In a bill of discovery for matters material to the defence of the party, in a suit at law against him, the nature of the defence at law must be stated, otherwise this Court will not grant an injunction. PETITION of the plaintiffs, stating that they were pros ecuted at law in the Supreme Court by the defendants. That the cause was put at issue on the 17th of June last. That the cause is noticed for trial at the Circuit Court, to be holden at Albany on the 7th inst. That the plaintiffs filed their bill for a discovery of matters therein specified, on the 29th of July last. That the defendants entered their ap- pearance on the 30th of July. That the six weeks expired on the 10th of September, and the defendants did not answer, but on the 23d of September, filed a demurrer. That the answer will furnish discovery material to their defence, and without which it would be unsafe to proceed to trial. Prayer for an injunction. The bill for discovery stated, in substance, that the plaintiffs, without interest, and for accommodation of Dow and Menzies, endorsed their note for 4,000 dollars in blank. That the note passed to the defendant M. as his property. That they have a good and perfect defence to the note, and that the other defendant, B., is a material witness for them, and had not, when the suit was brought, and has not now, any interest in the note. That the suit has been brought by M. under the blank endorsement, in the name of both de- fendants, with full knowledge of the materiality of Broivn's testimony, and with the sole view of depriving the plaintiffs of his testimony. That there are facts exclusively in his knowledge, which cannot be proved aliunde, and that D. and M. are insolvent. The defendants *demurred to the bill of discovery, and stated, as special causes of demurrer, that the plaintiffs have not set forth the nature of their defence at law, and do not show that the discovery sought is necessary, or would be material. Van Buren, (Att. Gen.) for the petitioners. He con- tended, that it was not necessary in the bill to state the nature of the defence at law. That this Court is not to judge of the materiality of the discovery, any further than to see that it is not obviously frivolous. (1 Bro. 95. and 3 Bro. 155. Bishop of London v. Fytche, and Rendow v. Wyatt.} That it is competent and material to show, upon the trial 42 CASES IN CHANCERY. 46 that one of the plaintiffs at law has no interest in the suit; 1817. (Bwkland v. Tankard, 5 Term Rep. 578.) and that the blank endorsement made no difference. That B. might be a witness at law, if it appeared he had no interest in the suit, though he was a party on record. That the application, by petition, is proper, and that the Court would restrain the process at law, until answer. (Appleynard v. Seton, 16 Vesey, 220.) Henry., contra, objected, that the plaintiffs were not en- titled to the assistance of this Court, inasmuch as they had not stated in their bill the nature of the defence at law, to enable this Court to determine whether the discovery should be enforced. This was indispensable, and it rested in the knowledge of the party. (1 Johns. Ch. Rep. 302. 548. Cooper's Eq. PL 60. Mitf. 52.) If the defence was, that the note was forged by one or both of the defendants, or that it was given for money won at play, or for usury, the discovery could not be compelled. ( Cooper's Eq. PL 202, 3, 4, 5, 6, 7. 1 Afk. 539. 1 Bro. 97. 14 Vesey, 59. 65. 1 Johns. Rep..361. 439.) The demurrer, though joint, is good as to the defendant M. (Cooper's Eg. PL 1133. 8 Viner, 403. 440.) *The answer of Brown could not be material as respects * 47 ] M., nor impair the action as to him. A demurrer lies, if the discovery does not appear to be material. (Cooper's Eq. PL 198, 199.) The defendants are also charged with a conspiracy to de- prive the plaintiffs of Brown's testimony, and on that ground are not bound to disclose. Brown is also charged with maintenance, in lending his name to carry on a lawsuit ; and a bill for that discovery may be demurred to. (Cooper's Eq. PL 204. note m.~) THE CHANCELLOR. There is no sufficient equity set forth October z in the bill, to entitle the plaintiffs to the aid prayed for. The nature of the defence at law ought to have been stated. For any thing that appears on the bill, the discovery called for may be utterly useless or frivolous, or it may be to enable the defendants at law to convict the plaintiffs of a crime, or to subject them to a forfeiture. It is not improbable that the defence at law is usury, and then the assistance of this Court would be obtained, without a previous offer to do the present defendants justice, by paying the sum equitably due. The plaintiffs cannot be entitled to the process of this Court, to stay the action at law, unless some clear and certain equity appears upon their bill ; and unless they show a right to a discovery, they show no equity. The Court ought not to 43 47 1817. "^s^ ' BOYD v. MCUKAY. *48] CASES IN CHANCERY. compel a discovery, when the object or purpose of it is kept concealed. I am bound to exercise a sound discretion in the application of the powers of the Court, and this cannot be done, if I am not possessed of the facts to enable me to judge of the materiality of the discovery. I ought not to rely ex- clusively upon the party's own opinion, that the disclosure would be proper and material. On this single ground, then, of a want of disclosure by the bill, of the purpose *for which the discovery sought is to be used, the motion for an injunc- tion is denied. Motion denied. BOYD AND WICKHAM against MURRAY. Where the bill charges an executor or trustee with abusing his trust, &c., an injunction will not be awarded in the first instance, but a receiver may be appointed. October! THE bill charged that Jacob Watson, by will, appointed John Murray one of his executors, and who alone acted. That he left a large real and personal estate, and gave the executors powers and directions relative to the distribution of the estate. That the executor confounded the estate with his own, and made no dividends or distribution. That he died, leaving the defendant his executor, who is acting in the same manner, and is in failing circumstances, and makes no dividend, &c., and abuses his trust, &c. The plaintiffs are assignees of some of the legatees. Prayer for an injunction, prohibiting the defendant from intermeddling with the estate of Jacob Watson, or the rents, &c., by collecting, receiving, selling, letting, &c. Caines, for the plaintiffs. He cited 12 Vesey, 4. 13 Vesey 266. 2Aik. 213. 3 Bro. 621. 2 Bro. 158. THE CHANCELLOR. The appointment of a receiver is quite a distinct question from that of an injunction. The cases cited principally relate to a receiver under such circum- stances. A receiver can act. He is a substituted trustee. * (9 ] But after injunction no person can act, and what *are to be- come of the rights of other legatees, and of debtors and creditors? They cannot demand, or receive, or pay, for there is no representative of the estate. The power of the 44 CASES IN CHANCERY. 49 executor is wholly suspended. Such an extraordinary meas- 1817. ure as an injunction, in the first instance, going to the whole v^~s/-^^ power of the executor, seems not to be conformable to pre- AYMAR cedents, and might be very injurious. Motion denied. P. AYMAR AND ELIZA ANN, an Infant, by the said PETER, her next Friend, against W. L. ROFF. Where a man was married to an infant under 12 years of age, who im- mediately declared her ignorance of the nature and consequences of the marriage, and her dissent to it, the Court, on a bill filed by her next friend, ordered her to be placed under its protection, as a ward of the Court, and forbade all intercourse or correspondence with her by the defendant, under pain of contempt. THE bill stated that the plaintiff Eliza A., the infant, was October 10. the daughter of Peter A., and under 12 years of age. That in August last, the infant, with her mother, went from the city of New- York to Staten Island, and boarded with Mrs. Roff. That the infant there became acquainted with the defendant, son of Mrs. Roff, who was about 23 or 24 years of age. That on the 27th of September last, the defendant proposed to the infant to go to a minister and be married. That the infant, then being under 12 years of age, and ignorant of the duties which the marriage, if legal, would impose, and con- sidering the matter as a frolic, agreed, and went with the defendant to the house of Robert F. Randolph, a Baptist minister, residing on Staten Island, by whom the ceremony of marriage was on that day performed. That the infant immediately returned to her mother, and *the plaintiff P. [ * 50 A. took her and her mother back to New-York. That the said infant was then under 12 years of age, being born on the 30th of September, 1805. That as soon as she was informed of the duties of the marriage state, and what it was in her power to do, she did, on the said 30th of September, in the presence of Thomas Bolton, a master in chancery, and of several other persons, declare her dissent from the marriage, and her unwillingness to be bound by it, and her election to live under the protection of the plaintiff; and this declaration was reduced to writing, and signed by the infant, and attested by the master and others. That when the infant made the declaration, neither of her parents was present nor any of her relations ; but she made the same voluntarily ; and she 45 50 CASES IN CHANCERY. 1817. now repeated the declaration, and declared her dissent from v^^-v *^/ the said pretended marriage, and disavowed the same. Thai AYMAR no meeting or intercourse of any kind had taken place be- itoJF. tween the infant and the defendant, since the said marriage. Prayer for a subpoena, and that the infant may be placed under the protection of the Court, as its ward, and that the defendant be restrained, by the order or process of the Court, from holding any conversation, or having any intercourse or correspondence, with the said infant, and for further re- lief, &c. The bill was sworn to by the plaintiff Peter, and subscribed by the infant, in the presence of the master. D. S. Jones, for the plaintiff. The following order was made by the Court : " On reading the bill, and on motion of Mr. D. S. Jones, of counsel for the plaintiffs, and the said infant being ex- amined in Court, and repeating the same declaration : Or- dered, that the said Eliza Ann Aymar be placed under the protection of this Court as a ward thereof, and that the de- [ * 51 ] fendant refrain from holding any conversation, *or from having any intercourse or correspondence with the said Eliza, so long as this order remains in force, under the pain of incur- ring a contempt." N. B. No further order was asked for in this case, so that nothing further was done, in the first instance. It appears, however, from the cases referred to in Eyre v. Countess of Shaftsbury, (2 P. Wms. Ill, 112.) that the parson and all other agents concerned in the marriage of infants, without the consent of their guardians, have been committed. 46 CASES IN CHANCERY. 51 C. LIVINGSTON and others against P. J. L VINGSTON. [Overruled, 24 N, Y. 130; 13 Wend. 200.] To a bill by several tenants in common of an estate in Jamaica, against their co-tenant, for an account of the profits, &c., it is not sufficient for the defendant to plead that the title to the estate may be brought in question, and suggesting that he has an exclusive title to the whole, and ought not, therefore, to be sued in this Court. The defendant ought to set forth his title affirmatively, that the Court may deter- mine whether the suit ought to be stayed, until the title is established at law. IN 1772, Henry Livingston, of the island of Jamaica, de- vised an estate in that island to his four nephews, Philip L., P. P. L., Walter L., and the defendant, in fee, as tenants in common. The testator died in February, 1772, having ap- pointed the four devisees his executors. P. P. L. proved the will, and managed the estate for the proprietors, until his death, in 1789, having, however, previously disposed of his share of the estate to Robert C. Livingston, in fee. After the death of P. P. L-, the defendant took upon himself the management of the estate, and appointed agents to superintend it, and to receive the profits ; and the propor- tions *of the net profits were, for several years, regularly received by the proprietors. R. C. L. died in 1794; Walter L. in 1798, and Philip L. in 1809, leaving the defendant the sole surviving devisee and executor. Since the death of Philip L., the defendant has prevented the plaintiffs, who are the legal representatives of the other three tenants in common, from receiving their respective shares of the profits of the estate, and has refused to exhibit any account thereof, pretending that he is entitled to the whole estate. The bill was filed, to compel him to render an account, and to pay to the plaintiffs their several proportions of the proceeds of the estate, and for general relief, &c. The defendant, without answering the bill, pleaded, that inasmuch as the title to the estate may be involved in the controversy, and which can only be tried by the laws of Ja- maica, he ought not to be sued in this Court for the matters set forth in the bill, and submitted whether he was bound to answer it. Robinson, for the plaintiffs. T. A. Emmet, for the defendant, contended, that the plain- tiffs must first establish their title at law, before they applied to this Court. He cited 1 Afk. 525. 543. 1 Vesey, 232. 234. 446. 3 Vesey, 352. 1 Amb. 428. 1 Madd. Ch. 74. 47 1817. LIVINGSTON v. LIVINGSTON Oitoher CASES IN CHANCERY. Harison, in reply, said, that the defendant, having entered as tenant in common, was concluded from setting up a pretend- LIVINGSTON ed claim to the whole estate ; for it could be nothing but a pre- tence. He ought to answer and set forth the nature of his exclusive title, and what the laws of Jamaica are. (Penn v. Baltimore, 1 Vesey, 444.) 1817. LIVINGSTON. THE CHANCELLOR. This case is not brought within the principle contended for by the defendant's counsel. The 53 ] *bill charges that the plaintiffs are seised in fee of their re- spective shares of the estate in the island of Jamaica, and that they have, until lately, received their proportion of the income of the estate, which has been for a long time under the management of the defendant, and that he now neglects or refuses to account, under some pretence of right or title to the whole estate. The mere suggestion of such pretence is not sufficient to defeat the plaintiffs' right to an account. If the defendant has any title, in exclusion of the plaintiffs, he must set it forth affirmatively, and it will then be in time to discuss the question, whether the suit ought to stay, until the title is established by the local tribunals in the island of Jamaica. The bill avers a seisin in fee by the plaintiffs, as tenants in common, and that the exclusive title set up by the defendant in conversation, is mere pretence ; and so I shall intend it to be, until the title is shown to this Court. Plea overruled, (a) (a) Vide M'Intyre v. Mancius, ante, page 40. CASES IN CHANCERY 53 1817. GARDNER, Administrator of GARDNER, against ASTOR. [Applied, 6 Johns. Ch. 395.] ASTOH. Where the equitable and legal estate are united in the same person, the former is merged in the latter ; as where the owner of an equity of redemption pays off a subsisting mortgage, and takes an assignment of it, it will be intended that he does it to exonerate his estate from the encumbrance, and that the mortgage is extinguished, unless it is made to appear that he has some beneficial interest in keeping the le- gal and equitable estates distinct. ON the 20th of August, 1800, Daniel R. Durning execu- October is. ted a bond and mortgage in fee to Evert Bancker, for se- curing the payment of 2,500 dollars, in one year. *In 1801, all the right, title and interest of Durning in the [ * 54 ] mortgaged premises were sold by the sheriff, under a fieri facias, issued on a judgment against D. at the suit of Joseph Winter, for 7,661 dollars and 37 cents, to Philip Brasher, who was the highest bidder, for 4,933 dollars and 17 cents. Brasher, who acted as the agent of Winter in purchasing at the sheriff's sale, on the 19th of December, 1801, released and conveyed the premises to Winter ; and the deed was recorded the 8th of June, 1808. Bancker, the mortgagee, on the 5th of November, 1800, assigned the bond and mortgage to his son Christopher, who died soon after, having made his will, and appointed R. Strong and A. Bancker his executors. On the llth of De- cember, 1806, Winter paid off the bond and mortgage to the executors of C. B., and took an assignment thereof, by which he became possessed of the legal and equitable interests in the premises. Being so seised and possessed of the premises, Winter, on the 10th of January, 1811, sold and conveyed the same, in fee simple, to the defendant, J. J. Astor. for the consideration of 7,500 dollars, with full covenants of seism, again^i, encumbrances, for quiet enjoyment, and warranty, which deed was duly recorded on the 15th of January, 1811. Winter, by an assignment dated the 6th of March, 1810, transferred the bond and mortgage to Charles Gardner, (who died intestate ine 21st of December, 1811,) as security for a bond of 3,500 dollars, dated the 22d of January, 1810. This assignment was not acknowledged until the 28th of January, 1811, and was not recorded. The defendant, in his answer, averred that he purchased the premises of Winter, absolutely, for a good and valuable consideration, and under the assurance of W. that there was no encumbrance thereon, and without any knowledge or sus- picion of the assignment of the mortgage t (Gardner* and with the full assurance and belief that Winter had a good and VOL. III. 7 *$ 55* CASES IN CHANCERY. 1817. perfect title to the premises; and that he *verily believet ^tr-^-*^/ that the assignment from W. to G., though dated prior to the GARDNER deed from W. to the defendant, was, in fact, executed subse- ASTOR quently to the defendant's deed. The cause was heard on the bill and answer. D. B. Ogden, for the plaintiff. Harison, for the defendant. THE CHANCELLOR. This cause is brought to a hearing upon the bill and answer, and I am, therefore, to take the answer as true. Winter, in December, 1801, purchased the equity of re- demption in the mortgaged premises, and he shortly afterwards paid off an outstanding mortgage, and took an assignment of it, and thereby united in himself the legal and equitable estates, or the whole interest in the land. The question is, whether the encumbrance was not, by that act, extin- guished. In Forbes v. Moffatt, (18 Vesey, 384.) a mortgagee of land afterwards took the equity of redemption by will, and it was held to be a question of intention, declared or pre- sumed, whether, in taking the estate, he meant the charge to sink into it, or to continue distinct from it. The charge, said the master of the rolls, had always been held to merge, when it was indifferent to the party in whom the interests had united, whether the charge should, or should not sink. In the present case, the intention of Winter was to extin- guish the mortgage. It was paid off by him, and it was many years after that redemption before he undertook to sell and assign the mortgage as a subsisting encumbrance. I am very apprehensive, that the sale or assignment was made with unwarrantable views. It bears date, indeed, in March, 1810, but it was not acknowledged until after the sale of the land to the defendant, in January, 1811, for a full price, and with full covenants of warranty. The answer [ * 56 ] *avers a belief that the assignment was subsequent to the deed to the defendant, and there is no proof to show when the assignment was actually made. There is no reason appearing from the case, why the two estates should have been kept distinct in the hands of Winter, and we have seen to what abuse it may lead. Un- less some beneficial interest for keeping up the distinction clearly appears, we ought rather to adopt the ordinary and natural conclusion, that when the owner of the equity of redemption pays off a subsisting mortgage, he does it to exonerate his estate. We ought, as a general rule, to follow 50 CASES IN CHANCERY. 50 the principle, that in the union of the equitable and legal 1817. estates in the same person, the former is metged and ^^s-*^ extinguished. M'KAT Bill dismissed, without costs. GR^KK. M'KAY GREEN and others. [Referred to, 88 N.T. 511. Reviewed, 1 Paige 419 n.] The personal estate of an intestate is the primary fund for the payment of debts, and is to be first resorted to by the creditor, at law. He can only come into this Court for an account and discovery of assets, and on the ground of a rus< in the executor or administrator to pay debts ; not for a sale of real estate, on d supposed equitable lien, arising from the money advanced by him having been applied to purchase the land. Whether a creditor, in an ordinary case, and without some special cause, can come into this Court to collect his debt from an executor or administrator, or merely to enforce a ratable distribution of assets ? Qucere. THE bill stated, that J. W. Green, in 1807, contracted to purchase a house and lot in New-York, and, wanting five hundred dollars for the purpose, applied to the plaintiff for his assistance to raise the money, representing to him that he would mortgage the premises, as security, for any advances that the plaintiff might be obliged to make. That *the plaintiff, in confidence that the premises would be a security to him for his engagement, endorsed a promissory note, made by Green, the 16th of October, 1807, for 500 dollars, payable in 60 days, for the purpose of raising that sum to complete the purchase by Green, who, by means of the note, procured the money, and having completed the purchase, received a deed for the premises, of which he took possession, and about the 1st of January, 1808, and before the note became due, died intestate, leaving a widow and children, defendants. That Green made no provision for the payment of the note, and his personal property was wholly insufficient to pay his debts. That the note fell due the 19th of January, 1808, and the suit was brought, by the holder, against the plaintiff, as endorser, and a judgment recovered far 598 dollars and 94 cents, which the plaintiff paid, on execution, the 5th of February, 1808. Letters of administration were granted to his widow, Margaret Green, defendant. The bill charged, that the sum of 500 dollars, so received by the intestate, Green, by means of the note endorsed by 51 October is. r * 57 J 57 CASES IN CHANCERY. 1817. the plaintiff, for the purpose of making the purchase, gave *^~^~^s the plaintiff a Ken, for the amount, on the premises ; and thai M'KAY Green, in his lifetime, and the defendants, since his death, GREEN. are so ^ ar trustees of the property for the benefit of the plaintiff. The bill prayed, that the premises might be sold, and the plaintiff paid out of the proceeds, and for general relief. The defendants, in their answer, denied any knowledge of the note, or of any agreement by Green that the premises were to be held as security, or of the suit against the plain- tiff. They admitted that Green made the purchase, and took possession of the property, on the 1st of May, 1807, and that the personal property was insufficient to pay his debts. Some proof was taken in the cause, but it did not show that the plaintiff endorsed the note under any assurance, [ * 58 1 *at the time, that the land should be held as a security, but merely that the intestate,, in his last illness, promised to give the plaintiff a 'bond and judgment for his security. The deed to Green was dated the 1st of May, 1807, and ac- knowledged the 12th of December, 1807. The note was dated the 16th of October, 1807, and was payable in three months. Green died the 18th of January, 1808. S7os5on, for the plaintiff. Baldwin, for the defendant. THE CHANCELLOR. The plaintiff endorsed the note of the intestate, upon his personal credit, and there was no promise, at the time, of any real security, nor any thing in the transaction to imply one. The notion that the plaintiff had an equitable Ken upon the land, because the note he endorsed was applied in part payment of the purchase money, is entirely without foundation. Nor is the bill framed for an account of assets, or so as to entitle the plaintiff to proceed, in this Court, as a creditor. The personal estate is the first and primary fund for the payment of debts, and the plaintiff ought to have resorted, at law, to that fund. He can only come here for an account and discovery of assets, and on the ground of a trust in the executor or administrator to pay debts. . (3 Aik. 572. 1 Sch. and Lef. 262.) The bill was not in- tended for that purpose, but only to enforce a sale of the land, by reason of the supposed lien. I doubt whether a creditor ought to come into this Court, in an ordinary case, and without some special cause, to collect his debt from an ex- ecutor or administrator. It would seem not to be enough to state that he is a simple contract creditor, for this would invite all suits against executors in this Court. The ordinary anil proper, as well as the cheaper and easier remedy, is at law. 52 CASES IN CHANCERY. * The resort here is only in special cases. In Gilpin v. 1817. *Southanpton, (18 Ves. 469.) Lord Eld*n said, that ever -^^-*^- * since he had known the Court, suits had been allowed against M-*KAY executors, or, rather, by executors in the name of a creditor, against themselves. The reason was, that as executors had vast powers of preference at law, the Court had not disap- proved of their coming, in the shape of an application by a creditor, in order to give a judgment to all the creditors, and to secure a distribution of the assets, without preference to any. When once the decree was made, it was impossible to permit a creditor to go on at law. But as considerable inconvenience arose from this practice, Lord Eldon intro- duced the rule, that where the answer did not state what the assets were, the executor should be called upon to state them by affidavit, before the injunction issued. I am not sufficiently informed, or prepared, to assume the entire and exclusive jurisdiction of suits against executors and administrators, merely for the purpose of enforcing a ratable distribution of assets. It is, indeed, the dictum of Sir James Mansfield, (1 Campb. N. P. 148.) that the cred- itors of a deceased insolvent may always be compelled, through the medium of a Court of equity, to take an equal distribution of the assets. He said it was only necessary for a friendly bill to be filed against the executor or administrator to account, after which the chancellor would enjoin any of the creditors from proceeding at law. This opinion came from a judge of very high authority, and who had great experience in chancery practice ; but he admitted, that the lawyers in the Court of K. B. were not aware of this rule. Without having formed any decided opinion, one way or the other, on this subject, it is sufficient to observe, in this case, that the bill was not intended or adapted for any such general purpose ; and it must be dismissed. Bill dismissed. 53 60* CASES IN CHANCERY. 1817. *~v~^. NlCOLL V. ROOSEVELT October 14 61 *NICOLL and others against E. ROOSEVELT and others. Where one of several defendants dies, the plaintiff cannot file a new) original bill against the representatives of the deceased party and the others, but a bill of revivor only against such representatives. Even if he might elect to file a new bill, he cannot do so where an answer has been put in by the party, since deceased BILL for a discovery against the executors of Cornelius C. Roosevelt, and Peter R. Ludlow and wife, for an account of moneys arising from the sale of parts of the real and personal estate of Samuel Nicoll, deceased, which had come into the hands of C. C. R., and for the payment of the amount, &c. Plea, that the plaintiffs, in the lifetime of C. C. Roosevelt, to wit, on the 4th of April, 1812, exhibited their bill against him, and P. R. Ludlow and his wife, to have an account of the same matters as are set forth in the present bill, and for general relief. That C. C. Roosevelt put in his separate answer to that bill on the 27th of August, 1812, which was not excepted to ; and afterwards died, having made his will, and appointing the defendants his executors. That the said suit is still pending in this Court, except so far as it may have abated by the death of C. C. Roosevelt ; and that the plaintiffs ought to revive it, as against the defendants, his personal representatives, so far as related to any right or claim of the plaintiffs against him at the time of his death, whereby the answer of the said C. C. Roosevelt would form part of the record, and the defendants have the benefit thereof, in their defence, as his personal representatives; whereas the present is a new original bill of the plaintiffs, which takes no notice of the former bill and answer, &c., but seeks a discovery and account from these defendants, as executors, as though the former bill had not *been filed, nor the answer of the said C. C. Roosevelt put in thereto. And the defendants, insisting on their plea in bar, prayed judgment, &c. J. Emott, for the plaintiffs. G. Griffin, for the defendants. 463. 3 Afk. 486. He cited 1 Veni. 308. THE CHANCELLOR. The plea ought to be allowed ; for, instead of an original bill, there ought, in this case, to have been a bill of revivor against the representatives of Roost' 54 CASES IN CHANCERY. ( veil, who had already filed his answer, of the benefit of i817. which they ought not to be deprived. The statute (1 N. R. ^*-^-** L. 488.) does not require or permit the suit to be abated in CATLIN case of the death of one of the defendants. Perhaps the HARNED. plaintiff may, in certain cases, be entitled to elect between a new bill and a bill of revivor, according to the dictum in the cases referred to ; but it would not be reasonable in this case, after the defendants had answered. Leave to amend the bill, on payment of costs. CATLIN against HARNED and others. Where, on a bill to foreclose a mortgage, a subsequent mortgagee, or judgment creditor, who is made a party defendant, answers and dis- claims, he is entitled to costs against the plaintiff, to be paid out of the fund, if that is sufficient, and if not, to be paid by the plaintiff; he not having applied to such defendant, before suit brought, to release, or otherwise disclaim. BILL to foreclose a mortgage, executed by J. Harned < ktober is. and his wife, to the plaintiff. The mortgagors answered, admitting *the facts, and consenting to a foreclosure. Two [*6'J of the defendants, who had obtained judgments against /. Harned, subsequent to the plaintiff's mortgage, suffered the bill to be taken against them, pro confcsso. J. IV., a sub- sequent mortgagee, and G. C., a subsequent judgment cred- itor, answered separately, admitting the facts charged in the plaintiff's bill, and disclaiming ; and the only question was, whether they were entitled, on theff disclaimer, to costs against the plaintiff. Slosson, for the plaintiff. C. W. Graham, contra. THE CHANCELLOR. The defendants who have disclaimed are entitled to costs against the plaintiff, to be paid out of the fund, if sufficient, to satisfy the demand of the plaintiff and their costs ; and if not sufficient, then to be paid by the plaintiff. They were not called upon nor requested to dis- claim, by release or otherwise, before suit brought, which application to them would, probably, have saved the necessity 55 62 CASES IN CHANCERY. 1817. of making them defendants. A very slight refusal or neglect, ^r~- v~^-s on the part of these defendants, might be sufficient to deprive BKOWN them of costs ; but without fault, and even ignorant, as the FICKETTS judgment creditor may be supposed to be, of the mortgage, they ought not to be sent out of Court without their costs. But the allowance of costs at all to these defendants, is attended with some difficulty, if those costs are eventually to fall on the plaintiff; for he was under the necessity, as it is generally understood, of making the subsequent encum- brancers parties. In Harikey v. JfaTson, cited by Cooper, in his treatise of pleadings, (p. 311.) it appears that a sub- sequent mortgagee, who had disclaimed, was denied costs. It is a question on which different opinions may be entertained but where the parties stand equally fair, in every respect, I [ * 63 ] think, that the plaintiff, *the actor, who brings the other into the Court, ought to pay the expense. Order accordingly. BROWN against RICKETTS and others, Executors. Publication is passed in a cause, by filing a certificate of the clerk of thu entry and expiration of the previous rules, with the register or assist- ant register, and entering a rule with him to pass publication. Either party who has examined witnesses may give rules for publication, but the rule for publication can be entered only by the party who has given the previous rules. The defendant cannot pass publication on the plaintiff's rules, nor vice versa. Get btr H THE defendants' solicitor entered a rule with the clerk on the 22d of March, 1817, giving three weeks to the plaintiff to produce witnesses ; and on the 12th of April, 1817, he entered another rule, for the plaintiff to show cause why publication should not pass in three weeks. After the expi- ration of the time, he took no further step in the cause, and did not pass publication ; which is done by procuring the clerk's certificate of the entry and expiration of those rules, and filing it, and entering the rule for publication with the register. The plaintiff's solicitor then entered the rule himself with the register, to pass publication, and set down the cause; and now moved to bring on the cause for hearing. The counsel for the defendants objected that the cause was not ready for hearing, and that publication has not duly 56 CASES IN CHANCERY. 63 passed. He contended, that the opposite solicitor could not 1817. do it upon the defendants' rules, and could only pass publi- ^^^^^^^ cation upon his own rules. As the cause now stood, the de- BROWN fendants' solicitor might go on and examine ^witnesses, and R IC KE TTS he might have good reasons for not passing publication. f * 64 1 Burr, for the plaintiff. Riggs, contra. THE CHANCELLOR was of opinion that the objection was well taken, and that the cause was, consequently, not ready for hearing. In one of Lord Coventry's rules (Beames's Or- ders in Chancery, p. 96.) it was declared to be the course of the Court to permit the .party to examine witnesses until publication. There is no doubt that either side, who has ex- amined, may give rules for publication, but the defendant cannot give them, until the plaintiff has been in default. (Newland's Practice, p. 143.) Publication cannot pass but by rule to be entered with the register or assistant register. This has been frequently declared by orders in the English chancery to be the practice; (Beames's Orders, p. 319. 333. 336.) and it is the practice here. The passing publication being founded on the previous rules for publication, it , can only be done by the party procuring the rules. They are connected parts of one act, and it would be unfit and unpre- cedented for the defendant to pass publication upon the plain- tiff's rules, when he is only entitled to proceed with his rules, on the plaintiff's default. Motion denied. VOT HI 8 57 CASES IN CHANCERY. October 15 1817. MESSONNIER *WlLLIAMS OgaiHSt WlLKINS and Others, ExCCUtOFS ol KALMAN. BRUSH. A plaintiff, suing in forma pauperis, and recovering a legacy against ex- ecutors, is entitled only to the actual costs or expenses of the suit, to be paid out of the assets. It rests in the discretion of the Court to order pauper or dives costs, ac- cording to the circumstances of the case. THE plaintiff sued in forma pauperis, and recovered a legacy of 200 dollars, with interest. The executors had re- fused to pay the plaintiff, because the will directed the money to be put out at the discretion of the executors, and they ap- prehended that the plaintiff, who was born a slave, and eman- cipated by the will, would, waste the money. The question was, whether the plaintiff was entitled to costs. THE CHANCELLOR said the cases had been reviewed in Rat- tray v. George, (16 f^esey, 232.) and there was found to be a great variety of contradictory decisions upon the subjects of pauper costs, and the result was that the Court had a discre- tion in each case. Here was no very unreasonable delay in the executors, and the plaintiffs ought not to recover dices costs, but only the actual expenses of the suit, to be paid by the executors out of the assets. Order accordingly. [ * 66] *MESSONNIER against KAUMAN. [Followed, 3 Johns. Ch. 351.] An appeal is only a stpy of the proceedings in the first instance, and the party in whose favor the decree is, may, with have of the Court, pro- ceed, notwithstanding the appeal ; and, on motion for that purpose, the Court, after an appeal filed, ordered a reference to a master to ascertain the precise sum due by the defendant, with interest ; and that the defendant bring the amount into Court within 30 days after confirmation of the report, or that he gives security to be approved of by a master, to perform the decree, or such decree as might be awarded against him on the appea 1, or that execution issue, notwith- standing the appeal. Octobet 16. AN appeal to the Court for the Trial of Impeachments and the Correction of Errors, from the decree lately pronounced in this case, (a) having been filed, 53 (a) Vide S. C. ante, page 3. CASES IN CHANCERY. (JO T. A. Emmet, for the plaintiff, now moved for leave to 1817. complete the decree, by a reference to a master to ascertain ^*-^~^s the precise sum due, by computing the interest on the amount MESSO.NMI K decreed to be paid; and that the defendant be directed to bring the sum reported into Court, within 30 days from the confirmation of the report, to be invested in public stock for the benefit of whom it may eventually concern; or that the defendant, within that time, give security, to be approved by a master, to perform the decree aforesaid, or the decree that shall be awarded against the defendant upon appeal, or that execution issue notwithstanding the appeal. flan'so??, contra. THE CHANCELLOR. It is very just and reasonable that the motion should be granted. The decree, in this case, is for a large sum of money due to the plaintiff; and as the defend- ant is not held to bail in this Court, and as the decree is not like a judgment at law, a Hen on hand until *seizure, it is [ * 67 ] necessary, and is loudly demanded by justice, that the plain- tiff should have some security for his demand, pending the appeal. It appeared, from the pleadings and proofs, that the defendant was himself a foreigner ; a more reasonable case for security cannot well be conceived. There is nothing, at present, to hinder the defendant from withdrawing himself and his property from the reach of the process of the Court. If the Court has any power, at all, in the case, it is indispen- sable that it should now exercise it. The case is within the reason of the statute, which requires security on writs of error from judgments in personal actions at law, in order to render the writ of error a supersedeas to an execution. It is proba- ble that this cause cannot be brought to a decision in the Court of Appeals during the next session, and the plaintiff's debt may be exposed to much jeopardy, and, probably, to total loss, by the delay. If, after great, persevering and ex- pensive efforts to obtain justice, a decree can be baffled, and the defendant escape, in this way, it may be truly said of a successful plaintiff, Tu victrix ploras. In England, an appeal to the House of Lords is no stay of proceedings in chancery, or of execution, without the special order of the chancellor ; and such an order, we may be as- sured, would never be granted in a case like this, until the sum recovered was placed in a state of security. Thus, in Willan v. Wittan, (16 Vesey, 216.) on motion to stay pro- ceedings until the appeal should be heard, the party offered to bring the money into Court, to be laid out for the party who should be ultimately entitled ; and the same course had been pursued in other cases. In Monkhouse v. Corporation 59 67 CASES LN CHANCERY. 1817. f Bedford, (17 Vesey, 380.) on a decree by a mortgagee, v^^^v^ ^_x the Court refused to suspend execution pending an appeal. MESSONNIEK unless the money was brought into Court, and the interest KAUMAN an( * costs P a *^ to tne plaintiff, on his undertaking to refund, if the decree should be reversed. So, also, in the case of [ * 68 ] Way \. Foy, (18 Vesey, 452.) the chancellor ^allowed the plaintiff to take a legacy decreed to him, notwithstanding the defendant had appealed, on his giving approved security to refund, if the decree should be reversed. There is no doubt, therefore, that the effect of such a motion as the present one would be a matter of course in the English chancery, before the appeal could be allowed to op erate as a supcrsedeas. I see no reason, nor any objection, against the possession and exercise of equal power in this Court. In Green \. Winter, (1 Johns. Ch. Rep. 77.) the question was discussed and considered ; and I concluded that it rested in the discretion of this Court to determine when, and how far, a party might have liberty to proceed, notwithstanding an appeal. The same point was raised, and the same conclusion drawn, in Bradwell v. Weeks. (1 Johns. Ch. Rep. 325.) I observed, in those cases, that it was well understood and established in the Courts at law, (2 Term Rep. 78 ; 4 Term Rep. 436 ; and the cases cited in the notes,) that it rested in the discretion of those Courts to determine when a writ of error was a supersedeas. The statute requiring bail on writs of error (which was copied from the statutes of 3 Jac. I. and 16 and 17 Ch. II.) only went to declare, that without bail in the given cases, a writ of error should not be a supersedeas, and it left the discretion of the Courts, as to when error should be a supersedeas, unimpaired By an order of the English House of Lords, of 1807, (15 Vesey, 184.) it was declared that, "for a very long course of years," Courts of equity had been in the habitual practice of proceeding, notwithstanding appeals ; and that, " according to the present practice of the House of Lords," appeals do not stay proceedings, without an order of the Court of Equity for that purpose, or a special order of the House of Lords. The resolution of the House of Lords further adds, that " such a practice cannot be departed from without introducing conse- [ * 69 quences the most oppressive to *the suitors in Courts of equity, and the utmost inconvenience in the administration of justice in such Courts." This practice of the House of Lords was declared to be found- ed on a very long course of years ; and, indeed, as early as 1697, we find, in the case of Homer v. Popham, (Code's P. C. 1 .) an instance in which the Court of Chancery proceeded in a cause pending an appeal, and this in stance was, in that case, made known to the House of Lords. In February, 1 786, the 60 CASES IN CHANCERY. 69 Court of this state, for the Trial of Impeachments, and the Cor- 1817. rection of Errors, declared, by a general rule. " that on appeals, ^^x-xx-^x^ the practice of the Court shall be conformable to that of the PENDLETOH House of Lords in England, when sitting as a Court of appeal, until further order." Motion granted. N. PENDLETON against EATON and others. Where both parties are equally innocent, and both are endeavoring to avoid a loss caused by another, costs will not be awarded to either party as against the other. THE bill was filed in October, 1810, by the plaintiff, a mort- October a*. gagee, to compel the mortgagors to come to an account, and pay the plaintiff the amount due on the mortgage, and redeem the same, or be foreclosed of all equity of redemption. The mortgage, dated the 17th of February, 1804, for a tract of land in Greene county, was executed by Amos Eaton and Abel Eaton, defendants, to the plaintiff, to secure the payment of 13,500 dollars, being the amount of the purchase money of the same land conveyed by the plaintiff to them, and payable in three equal instalments, at *five, six, and seven [ * 70 ] years ; and as further security, they executed a judgment bond to the plaintiff, on which judgment was entered up the 18th of February, 1814, and Abel E. also, as additional security, executed a mortgage to the plaintiff on his farm in Columbia county, but which was afterwards released, on receiving the interest due to the 1st of May, 1806, and the bond and mort- gage of M. Dorr, the purchaser of the farm. The bill stated that 13,412 dollars now remained due, for which the mort- gaged premises were a slender security ; that the mortgagees neglected to make payment, but combining with one M. Eaton, J. Beach, and others, they set up certain pretended releases of parts of the premises, and receipts of the plaintiff, which the plaintiff alleged were forged, and which were par- ticularly described ; and that, under color of these releases, A. E. had sold and mortgaged to the defendants various parts of the premises. In June, 1811, William Edgar, a defendant, in his answer, stated that he lent Amos Eaton, in January, 1810, three thousand dollars, for which he took his bond, and a mortgage on part of the premises mortgaged to the plaintiff, on the 61 70 CASES IN CHANCERY. 1817. advice of counsel that the land was unenci mbered ; that h r \^r~^s-*+~s was entirely ignorant of the transaction stated by the plain- PKNDLETON tiff in his bill, and insisted on the lien on that part of the EATON premises mortgaged to him. The cause was at issue, as tc %rtgagee. He had no concern with a greater portion of the matter in the bill, in which nineteen other defendants were charged. He answered, by setung 62 CASES IN CHANCERY. up his mortgage fairly taken, and denying all knowledge of 1817. Any fraud in Amos Eaton, in procuring the releases which S^-N^-H*^ *appeared upon record, and which showed the land to be PENDLETON free from encumbrance when he took his mortgage. There EATOH can be no just ground for charging Edgar with costs in the original suit. He has done nothing which he had not a right to do. But he filed a cross bill ; and under the circumstances of the case, he was justified in doing it. After his answer to fhe original bill, Pendhton should either have dismissed it, as to him, or gone on to establish his allegations, and to make manifest his prior and better title. Instead of doing so, he resorted to his judgment at law, and proceeded to sell the very land covered by the conflicting mortgages. By this means, he drove Edgar, by necessity, to resort to a cross bill, and to stay the sale by injunction, until the merits of the original suit had been discussed and settled. That cross bill was not properly a bill to redeem. That was not its character or object. It was to stay the execution at law, and to insist. on the validity of his claim under Edgar's mortgage. The great prolixity and expense of the answer to the cross bill, and of the proofs taken in the cross cause, were matters of the defendant's own seeking in that cause. The whole suit was forced upon Edgar, by the act of the original plaintiff, and Edgar ought not to be charged with the expenses of it. Suppose the original plaintiff had gone on to proof and hear- ing, in the original cause, and obtained the decree which he finally obtained, there would have been no equity in con- demning Edgar in the costs of the suit. He was brought into Court innocently, and he had a right to stand upon his mortgage, until the falsity of the releases was made out. The cross bill does not alter the equity of the question of costs, as it would have stood, if there had been no cross bill ; for it was the act of the original plaintiff in quitting his suit after the defendant's answer, and resorting to his execution at. law, that rendered Edgar's bill necessary. Nor do I think that the offer mentioned in the answer *to the cross bill alters the case. Edgar was bound to [ * 73 J accept of a composition, and leave the question of title and right between them undecided. That was a matter resting in his discretion, and cannot enter into the consideration of the case, as it stood upon actual litigation ; and, besides, the answer being put in issue, there is no proof which I have seen of this offer. Upon the whole, both parties are equally innocent, and have been equally struggling to avoid a loss ; and I cannot, according to the course and practice of the Court, punish either party with costs, as against the other. There is another fact in this case, which is import? nt, as to 63 73 CASES IN CHANCERY. 1817. tne question of costs. The costs of the original plaintiff v^^-x, ^x' ought to be charged upon the fund which was in contest. STACKHOUSE That is the proper subject of the charge ; and I have no HALSEY evidence that it is not fully adequate to satisfy the plaintiff's debt, interest, and costs. The plaintiff elects to foreclose the equity of redemption, by which he takes the subject to himself, by a strict and technical foreclosure, instead of selling it under the direction of the Court. I have no ground, then, in 'the absence of positive proof, for any other presumption than that the land is sufficient for all the purposes for which it ought to be charged. Ordered, that neither party in either suit have costs, as against each other. *STACKHOUSE against HALSEY. Where the statute directs the advertisement for the sale of mortgaged premises to be published " once a week for six successive months," lunar, not calendar months, are intended. BILL to set aside a sale of mortgaged premises, under a power contained in the mortgage. The cause was submitted on the bill and answer. Wyman, for the plaintiff. Maxwell, for the defendant. The single point was, whether the words of the statute directing the advertisement of the sale " once a week for six successive months," meant calendar or lunar months. THE CHANCELLOR ruled that lunar months were under- stood here, and in all cases, in statutes, where months are mentioned ; and there is nothing in particular to indicate that calendar months were intended, in contradistinction to the other. The cases of Lacon v. Hooper, (6 Term Rep. 224.) and of Talbot v. Linfield, (1 Wm. Black stone' s Rep. 450.) were referred to. (a) (a) Vide Lor'mg v. Hailing, 15 Johns. Rep. 119. S. P. Leffingwell v. Pier point, 1 Johns. Cases, 100. Jackson v. Clark, 7 Johns. Rep. 217. 64 CASES IN CHANCERY. *75 1817. MATTOCKS y f *MATTOCKS against TREMAIN and others. TREUAIH To entitle a party to a writ of ne exeat, his debt or demand must be satisfactorily ascertained ; a mere declaration of belief of the existence and amount of his claim, is net sufficient ; there must also be a positive affidavit of a threat or purpose of the party against whom the writ is prayed, to go abroad ; and that the debt would be lost, or at least in danger, by his departure from the state. It seems that a writ of ne exeat will not be granted, on petition and mo- tion only, without a bill previously filed. THE petition of the defendant Tremain stated, that he October 2i was payee of a note of the plaintiff's to him, for 2,272 dol- lars, and endorsed it to the other two defendants, who thereupon arrested the plaintiff, at law, but did not hold him to bail, owing to the representations of the petitioner of his solvency, &c. That the plaintiff filed his bill against all the defendants, for an injunction to stay the suit at law, on the ground that he had never given such note, and the injunction was granted. That the petitioner is informed and believes, that the plaintiff is selling off his property, and is about to remove out of the state. That by the said bill, the plaintiff at law seeks a discovery, and account of the petitioner. That the note was given on a partnership account, and the plaintiff owes the petitioner 2,000 dollars on the partnership accounts, beyond the amount of the note, and for which claim he has no redress at law, the same not being as yet liquidated. Prayer for a writ of ne exeat. The petition was sworn to on the 21st of October, 1807. G. Caines, for the defendant, moved for the writ of ne exeat. THE CHANCELLOR. There are difficulties arising upon this petition. 1. In the first place, the demand of the petitioner is not *sufficiently ascertained. The old rule was, that stating the [ * 76 J belief of the balance of an account was sufficient ; but Lord Eldon, in Amsinclc v. Barklay, (8 Vesey, 597.) said he should, in future, pause upon such a general statement, unless facts or declarations, as the ground of that belief, were given. I do not say that such a dictum is sufficient to form a new rule ; but the nature of this case requires something more than a general declaration, that the plaintiff owes him 2,000 dollars beyond the amount of the note, which he admits was given on a partnership transaction. Why should VOL. III. 9 65 76 CASES IN CHANCERY. 1817. * ne no ' e be gi ven f r P ar t only of the demaid? It is evi ^^^-v^^x dence that no more is admitted by the plaintiff to be due, MATTOCKS and it is so far evidence of a settlement ; and the bill filed by tne 1^^ claims a balance due him. In such a pecu- liar case, there must be something more than the general declaration of belief. 2. The evidence is not sufficient of the plaintiff's intention to go abroad. It is a belief derived merely from information ; and this seems to refer only to the fact that the plaintiff is disposing of his property. There ought to be a positive affidavit of a threat or purpose to go abroad. (.Efc/ies v. Lance, 1 Vesey, 417. Oldham v. Oldham, 7 Vesey, 410. Jones v. Alephsin, 16 Vesey, 470. Percy v. Powell, cited in Beams' 's " View of the Writ of Ne Exeat," p. 25. MS. case of Mr. Bell.} So, also, the affidavit ought to have stated, that the debt would, at least, be endangered by the departure of the plaintiff. (7 Vesey, 417. 8 Vesey, 33.) There are several facts set forth in the petition which have nothing to do with the case. The plaintiff is sued, at law, by the other two defendants ; and with that fact, or the demand upon the note, I have, at present, no concern. The application is only on behalf of the petitioner, and he has no other ground for the writ than the balance due to him on the account, and his affidavit is too defective, for the reasons I have stated. |"#77"j *3. It may, also, be a question whether the petitioner ought not to have filed his bill, to entitle him to the writ The settled rule is, that the writ cannot be granted on pe- tition and motion, without a bill previously filed. (Ex parte Bruncker, 3 P. Wms. 312.) Possibly, the defendant may move for the writ upon the plaintiff's bill, seeing his demand may be liquidated, settled, and recovered under the present bill. The difficulty, however, is, that the plaintiff may abandon, or dismiss his bill, on payment of costs ; and the writ should not rest upon a bill which the party suing out the writ cannot control. Motion denied. 66 CASES IN CHANCERY. 71 1817. METHO. Kris The Trustees of the METHODIST EPISCOPAL CHURCH and others against JOHN D. JAQUES and others. o [Reversed, 17 Johns. 548. Criticised, 22 N. Y. 240. Denied, 2 MacArthur (U. S.; 290. Reviewed, &4 N. C. 070.J Where the husband is permitted, by the wife, to have the management of her separate property, secured to her by a marriage settlement, to receive rents, &c., very strict proof of his having paid to, and settled with her, during her lifetime, for the sums received, is not required ; but, from the confidential nature of the connection, the most favorable presumptions are indulged towards him. He cannot, however, claim money received by him for a judgment debt due to the wife, on the ground of the mere parol declarations of the wife, contrary to the terms of settlement. A feint covert, with respect to her separate property, is to be considered as a feme sole, to the extent only of the power given to her by the marriage settlement. Her power of disposition is not absolute, but sub modo, to be exercised according to the mode prescribed in the deed or will under which she becomes entitled to the property. Therefore, If she has a power of appointment, by will, she cannot appoint by deed; or when she is empowered to appoint by deed, the giving a bond, or note, or parol promise, without reference to the property, or making a parol gift of it, is not such an appointment. So, when it is said in the settlement, that she is to receive from the trustee the income of her property, as it may, from time to time, be- come due, she has no power, by anticipation,^ dispose, at once, of all that income. *No exception can be taken to a report of a master, unless the objection * IS ] was made to him previous to his signing his report. A party, in an account before a master, under the head of general ex- penses, is not to be allowed any thing, without specifying particulars. Where one party produces a paper to charge the other, the opposite party may use it in his discharge ; but it does not follow that each party is entitled to the same credit. Where the discharges are inaccurate in some instances, and are destitute of precision and certainty, as to place and circumstance, the whole may be rejected. Costs on exceptions to a master's report are allowed to each party, on the exceptions in which they have each, respectively, prevailed. The mistake of the master is not like the error of a judge, and is no rule as to costs. THIS cause was brought to a hearing, on the pleadings October i,z. and proofs, in June, 1815, (Vide S. C., vol. 1. p. 5. and p. %nb'n 450.) The decree of the Court, the 27th of June, 1815, settled the principles on which an account was to be taken between the parties ; and an order of reference was, there- upon, made to a master, to take and state the account according to the directions there given. It being subse- quently discovered that some of the property advertised for sale, under the decree, had been mortgaged, further di- rections were given to the master,* by an order dated the 5th of October, 1815. In pursuance of these orders, the 67 78 CASES IN CHANCERY. 1817. master proceeded in taking the accounts, and continued v^'-v^-^x until March, 1816, when he died without having completed METHO. Ens. them. On the 29th of April, an order was made trans- CHURCH ferring the reference to another master, who made his repon JA^UES. the 10th of April, 1817. The plaintiffs took exceptions to this report. On motion of the defendant's counsel, the master was ordered, on the 8th of September, 1817, to deliver certified copies of the minutes of testimony taken, and of the vouchers produced before him. (S. C. vol. 2. p. 543.) Oct. l, 2, 3, 4. The cause wis brought to a hearing in October last, on the exceptions to the master's report, being eighteen in number. Harison and Riggs, for the plaintiffs. T. A. Emmet, for the defendant. [ * 79 ] *It is not thought necessary, or useful, to state the report and evidence at large, nor to note the decision of the Court on those exceptions which related merely to matters of facts. The material facts, as well as the nature of the other excep- tions, and the points decided, will sufficiently appear from the following opinion delivered by the Court. Second exception. That the master charged the defendant with the rent of the premises adjoining Broadway and Crosby street, from the 1st of November, 1810, to the 1st of May, 1812, being 615 dollars, with interest, without allowing the defendant to be discharged therefrom, as being received by him for and on account of his wife, and paid or otherwise accounted for, and settled with her in her lifetime. THE CHANCELLOR. The defendant admitted, before the master, that he had received the rent in question, and had given his receipts for it ; and it was proved by Usher and his wife, that the defendant had applied for the rents from the Where the hus- tenant, and signed the receipts. The objection to the al- ^(Th ' S th P e 'wife l wance is? tna t he had paid the money over to his wife. to have the The proof in support of that allegation, was derived from the management of testimony of Margaret Steivart, \vho says, that she lived with her separate es- __ T J i T-T T i -i i i rate, to receive Mrs. Jaques, when Usher hired the house, and that sometimes strict & roof "or" s ^ e rece i ye d the rent from Usher, and sometimes the defend- nis having paid ant received it, and paid it over to her, and that she was wkh^er Tn'his P resent > several times, when Mrs. Jaques received the rent, lifetime, 'for the and also when the defendant paid it over to her. She heard ETot w^rea'- Mrs ' J a( l ues ask tne defendant if he had gotten the rent from am, from the Usher, that she wished him to give it to her. Confidential na lure of the connection, the most favorable presumptions are indulged towards him. 65 CASES IN CHANCERY. 79 II is said that the most entire reliance is not to be placed 1817. 3n the accuracy of Miss Stewart's testimony, as her narrations ^^-~^~*+-' were a little variable and inconsistent, and her memory not METHO. Ens the most regular. But in a case of this kind, it *does not CHURCH require the strongest proof to protect the husband ; and it JAQUES. ought to be observed, that the character of this witness stands [ * 80 ] unimpeached, and that she was the confidential friend of Mrs. Jaques. The rent in question was part of the proceeds or income of the wife's estate, and the presumption is, that the wife was satisfied, and that her husband had duly ac- counted to her for the rent. Unless we reject Miss Stewart'* testimony entirely, we must draw this conclusion. I admit, that, as between strangers, a more strict and severe proof would be required ; but the books teach us that the greatest liberality is shown, and the most favorable presumptions in- dulged, when the husband is permitted by the wife to be con- cerned in the management of the income of her separate estate, as it occasionally accrues. Exception allowed. Third exception. That the master has charged the de- fendant with all sums of money which appeared to have been possessed or claimed by the wife during her marriage, and which came into his hands, without consideration or regard, whether such sums were comprehended in the deed of mar- riage settlement, or produced by the sale, change or transfer of some part of the settled property, instead of taking an ac- count of all her personal estate at the marriage, and secured to her by the settlement, and permitting the defendant to discharge himself by accounting therefor. THE CHANCELLOR. This exception is generally to the mode of accounting before the master, and it is a sufficient answer to it, that it was not taken before the master. The mode adopted was acquiesced in. It would be oppressive, and render cases of reference a grievous burden, if a party might be permitted to lie by with an objection of that kind, until the accounts had been taken, after a tedious *and ex- [ * 81 J pensive investigation. In this very case, it was stated at the bar, that there had been upwards of fifty-seven distinct hear- ings before the master. Few suitors would be willing to en- dure the repetition of such a reference, and they ought not to be compelled to submit to it, unless the necessity and No exceptions justice of it be very apparent. The rule of practice is founded Treport^o" ' in much good sense, that no exceptions are to be taken to a master, unfess report which were not made before the master had signed were madeto the report ; for the master might have allowed the objections, h i m previous 10 and have saved the parties unnecessary expense, as well'as ""' 69 SI CASES IN CHANCERY. 1817. tne Court unnecessary trouble. (2 Harrison's Prac. 146 v^^^i^x Wyatt's P. R. 380, 38 1 .) This rule is not departed from, ex- METHO. EPIS cept in special cases, such as that of Pennington \. Muncas- OHURCH j er ^ ^j Maddock's Ch. Rep. 555.) in which the general rule JA^UES. was emphatically admitted. The defendant, in his discharges exhibited to the master, stated that he claimed to be discharged from all moneys not comprehended in the marriage settlement, or not produced by the sale, change, or transfer of some part of the property included therein. If he has been charged with any prop- erty not so included or so produced, it is for him to show it, and not to object, in general, to the mode of accounting. T believe it is not pretended, that he is to be responsible beyono. the estate which his wife owned at the date of the marriage settlement, and the income or produce, or results of it. The claim set out in the beginning of the defendant's discharges, was not a distinct objection to any particular mode of ac- counting, provided that claim was tolerated. Exception disallowed. Fourth exception. That the master has charged the de- fendant with 1,208 dollars, 26 cents, as received by him for the leasehold estate in Warren street, sold under Heyle's f * 82 J mortgage, and purchased by Wilmerding, though *that was the money of the defendant himself, and grew out of his own proper funds. THE CHANCELLOR. The defendant admitted, in his answer, that he received this money, and never paid it to his wife ; and he admits that it arose out of part of the property mort- gaged by Heyle to his wife. To understand the nature of this exception, we must look into the whole complicated operation of the defendant under the mortgage, and the judgment which Mrs. Jaques had upon the property of Christian M. Heyle. The defendant admits, in his answer, that his wife held a mortgage of Heyle to 3,430 dollars, on two lots in- Warren street, and one lot in Murray street, and that she had also a judgment bond against him to 2,772 dollars, 75 cents. One of the lots in Warren street, was a freehold estate, and the other lot in Warren street, and the lot in Murray street, were leasehold etates. He admits, also, that, in the summer of 1806, his wife was sued on a note which her former husband, Wm. Alexander, had given to Heyle, and which had been assigned to Robert Murray, as a security for the payment by Heyle for the leasehold estate in Murray street ; that he paid tha* note, to 493 dollars, 15 cents, out of his own propei 70 CASES IN CHANCERY. 82 moneys, and took an assignment of that lease as his security 1817. for the repayment. This was a very suspicious transaction \^r^s~+^ on the part of the defendant. He admits that his wife's per- METHO. EPIS sonal estate, in that very summer, was 1,466 dollars, 16 cents This was independent of all her real estate ; yet he paid off a note against her with his own proper moneys, and took an assignment of a lease as a security for his reimbursement. It appears to me that the fact of his discharging the note with his own moneys is incredible, and still more so that he should require security for the repayment. But he goes on, and states, in his answer, that, while engaged in settling that business, he discovered that Trinity Church held a *mortgage, f * 85 for 1 12 pounds, 12 shillings, from Heyle, for one of the Warren street lots, and which was prior to his wife's mortgage. He then, without disclosing the discovery to his wife, buys in that mortgage, also out of his own proper moneys, and takes an assignment of it to himself. He discovered further, that one Wagner had a mortgage on the other lot in Warren street, and that mortgage he also pays off with his own proper moneys, and takes an assignment of it to himself. He says further, that, to secure himself, and to obtain possession of the rents, he mentioned these mortgages to his wife, and she then placed in his hands the securities, by mortgage and judgment, which she held against Heyle, " desiring him to do the best he could," and apply the proceeds, both principal and interest, to family expenses, and to repairs on her prop- erty. Such is the defendant's narration of this transaction, and if he had (as he says he had) the entire confidence of his wife, and all the influence resulting from that confidence, and if he assumed and exercised (as he avers he did) a con- siderable agency in the management of her property and money transactions, then certainly such trafficking for his own benefit, under the mask and in the performance of his trust, as agent, was altogether unwarrantable. Having thus attached the prior liens in himself, and ac- quired the unlimited discretion over his wife's subsequent debts and encumbrances, he proceeded to consummate his speculation. By agreement with Heyle, he gets into pos- session of the rents of all the lots, and comes to an account and settlement with Heyle, by which it would appear that Heyle owed him, upon all his combined demands, 8,026 dollars, 97 cents. He next commenced two suits in equity to foreclose the mortgages, and by an amicable reference, under an agreement with Heyle, 7,218 dollars, 26 cents, was reported due by the master ; and all of it was due to him. he says, because " he had advanced as much as the wife's mortgage and judgment for family expenses." A *sale took [ * 84 place under the decree, and the leasehold property in 71 84 CASES IN CHANCERY. 1817. Warren street was purchased by Wm. Wilmerding, and tht v_^ s^-*^/ money paid into Court, and afterwards received by the METHO. Ens. defendant, and this is the money now in question under this CHURCH fourth exception. JAQUES. But ic proceed with the story ; the other freehold property in Warren sireet, and the leasehold property in Murray street, were both purchased by the defendant ; the one for 1 ,520 dollars, and the other for 4,500 dollars, and the purchase moneys, in both cases, set off in part of the claim of the defendant against Heyle. The leasehold property in Murray street the defendant, afterwards, sold to his brother Robert Jaques, one of the defendants, for 2,000 dollars, and who admits that he knew, when he purchased, of the manner in which the defendant had acquired his right and title. The defendant says, that he reported to his wife what he had done, and she was satisfied and acquiesced. He says, also, that he never paid or accounted to her for the moneys arising upon the sale, otherwise than by applying what Heyle owed her as she directed. How far Mrs. Jaques was satisfied, may be inferred from what she declared to Alexander Clark, in the autumn subse- quent to these sales, when she said that she felt uneasy respecting her husband's conduct relative to her estate and property, and that he and his brothers were doing things which she thought injurious to her interest. She certainly thought that the defendant was acting for her, and not for himself, in the business of these mortgages ; for she told Heyle that she and the defendant had been selling some of her property, in order to buy up the prior mortgages. By the decree of the 27th of June, 1815, I considered those purchases as made by the defendant, as trustee for his wife, with her moneys, and that the land equitably belonged to her. If the land was hers, the moneys resulting from the sale of those lands equally belonged to her. It was * ^ r > ] ^equally trust money. The exception is in the face of that decree, and unless that decree was erroneous, the exception must fail. The money paid by Wilmerding did not grow out of defendant's own proper funds. There is decisive proof of this from the admissions of the defendant in his answer. He gives, at the end of his answer, what he terms a just and true account of all the money and property received by him from the 1st of August, 1806, out of property belonging to his wife, and one item of the moneys so received is the oalance due her from Heyle, amounting to 8,026 dollars, 97 cents. This is the precise sum which, in another part of his answer, he says, was due on a settlement with Heyle, after he had purchased in, with his own proper moneys, the otit- 72 CASES IN CHANCERY. 85 standing encumbrances, and taken in hand those of his wife. In one part of his answer, he admits the whole of that sum to be his wife's property, and in another part, that a consid- erable part was of his own proper moneys. Such incon- sistency and contradiction shake the credit of the defendant's allegations in his own favor; and it seems to me impossible to doubt, that the moneys arising from the sale of the mortgaged premises belonged exclusively to his wife. The conclusion is, that this money paid by Wilmerding belonged to the wife, and the pretext of the defendant, that it was agreed between him and his wife, according to his first answer, that he should receive H.eyle's money, towards reimbursement of the sums expended by him on her account, or, according to the second answer, that he was to apply it to family expenses, and to repairs, is altogether inadmissible. There are witnesses who testify to similar declarations of the wife ; and the claim of the defendant to the part of Heyle's mortgage money contained in this exception, as being his own proper moneys, is probably founded on some such alleged parol gift or agreement with the wife. In this view, the exception is also repugnant to the decree *of the 27th of June, 1815, by which no allowance was to be made, except in special cases, out of the principal or capital of the wife's personal estate, for family expenses, on the foot of any general agreement. As several of the exceptions look to this point, it may be expected that I should give the subject a more extended consideration. The counsel, while upon these exceptions, cited several cases ; in respect to the wife's power of dispo- sition over her separate property, and the requisite evidence of it. The counsel for the defendant referred to 2 P. Wms. 82, and 4 Viner, 130 ; and the counsel for the plaintiffs to 10 Vesey, 586, 2 Vesey, jun., 498, and 1 Maddock's Treatise, 377. 380. At the first glance at the authorities, they appear to be full of contradiction and confusion. It is to be observed, that by the decree under which the account was taken, the defendant was only to account for the principal, and not for the interest or dividends on his wife's personal estate, received by him during the coverture. The agreement with the wife, as set up by the defendant, was, that the family expenses were to be borne out of the income of her estate ; and I am not aware that the defendant is, in fact, charged with any part of that income. He was even to be allowed for an appropriation of principal, when founded on special directions in the given case, and appar- ently for her benefit. Any greater latitude, would deprive a wife of the protection which the marri ige settlement, and the creation of a trustee, threw around her, and which pro- YOL. III. lu 73 1817. ^v~^ METHO. EPIS CHURCH v. JtQUES. [*86] The question as to the power of a feme covert over her sepa- rate property, settled to her separate use / and the manner of its execution, examined. 86 CASES IN CHANCERY. 1817. tection the law allowed her to assume. It would be exposing v^^-v^^/ the wife to the acts, machinations, and undue influence, which METHO. EPIS. the general dominion and power of the husband must greatly CHURCH facilitate. The question here is, whether the defendant is JAQUES. authorized to set up a title to the large debt of his wife against Heyle, founded on parol declarations of the wife. The settlement in this case was made with all due form [ * 87 ] *and solemnity, and the husband became a party to the deed. It was made immediately previous to the marriage, and the defendant voluntarily acceded to the marriage contract, upon the express conditions contained in the settlement, and he was bound in good faith to the observance of them. The Terms of the deed recited that " he had agreed not to intermeddle with, or "eiT aSeSettle " ^ ave anv rig* 1 *' tit- 6 or i nterest , either at law or in equity, to any part of the rents, issues, profits or proceeds of her prop- erty, real and personal, (and which was mentioned in general terms in the deed,) but it was to continue, remain, and be to her, or to such uses as were in the deed of settlement ex- pressed." After this recital, the deed conveys her estate, real and personal, (and which is again, and in more particular terms mentioned,) to Henry Cruger, in trust for her, and upon her marriage, to the use of such persons and uses, and subject to such provisions, as she, with the concurrence of her husband, should, by deed, or by will, without his consent, give, limit, direct, and appoint. In default of such directions, &c., then to the trustees, " in trust to permit her to hold and enjoy the same, and receive and take the rents, issues and profits, and that her receipts should alone be sufficient dis- charges, from time to tim,e, to the end that the same should not be subject to the control, debts, intermeddlings or engagements of her husband, but should be to her only use, benefit, and disposal." The defendant ought to be precluded, by this deed of settlement, from claiming any part of his wife's estate, founded on any parol agreement or gift of the wife ; and he sets up no other. The object of the settlement was to protect her against his debts, control, or interference, and .he intention is too manifest to be mistaken. A Court of equity will certainly protect the wife in the enjoyment of the property, according to the settlement. Her disposition of the property was to be by deed, in concurrence with her [ * 88 ] husband, or by will, without it ; and her receipts *were to be, " alone," sufficient discharges, from time to time, of her title to the rents, issues, and profits. To allow the husband to set up contemporary, or subsequent parol agreements, con- fessions, or gifts, would be allowing him to contradict and defeat the settlement. It would be, at once, exposing tht wife to all that undue influence, and that marital " inter 71 CASES IN CHANCERY. 8a meddling and control/' which the settlement was intended 1817. to prevent. v-*^v^*^- These marriage settlements are made to secure to the MKTH<>. EPIS wife, and her offspring, a certain support in every event, and " ! RC to guard her against being overwhelmed by the misfortunes, or unkindness, or vices, of the husband. They usually proceed from the prudence and foresight of friends, or the warm and anxious affection of parents. If fairly made, they ought to be supported, according to the true intent and spirit of the instrument by which they are created ; and I am very unwilling to admit that, notwithstanding the cautious language of this settlement, the wife was to be deemed to have absolute dominion over the property, as a feme sole, and not bound by the prescribed form of disposition. A Court of equity will always carry the intention of these settlements into effect, when that intention is explicit and certain. The Court will not suffer the grant to be defeated, or the intention of the settlement to fail. This is the general principle that pervades the cases, however discordant they may be in the application of their doctrines, or however perplexingly subtle in their distinctions. Now, if the mean- ing of the settlement in this case was, that the wife could only dispose of her estate, real or personal, by deed or will, or bar herself of the rents, issues, and profits, by her re- ceipts, how can the Court uphold the husband in setting up a parol disposition, or gift, and especially as against the very settlement to ivhich he ivas a party ? If the instrument contains a prescribed form of disposition, I do not see why it is not as available as if the *deed contained a proviso r * 89 ] against any other mode of disposition. It is a question of intention and construction merely. In this case, the settle- ment was a condition precedent, and the husband married upon that condition of settlement. Justice and good faith require that the wife should not lose, nor the husband acquire, that separate use of the property, unless in the mode prescribed. These interests which married women are per- mitted to take for their separate use, are creatures of equity ; and equity may modify the power of alienation according to the intention of the settlement, which is to secure a separate and certain provision for the wife, free from the control ot her husband, and not to be parted with except in the mode and under the checks prescribed. If the technical rule of aw, that when a person is owner of property, he takes it with all its incidents, and that every restraint on alienation is repugnant to the ownership, be applied to these settlements, they may be abandoned at once, as delusive, for the most guarded proviso against alienation would be void. But I am 75 69 CASES IN CHANCERY 1817. notable to perceive any objection to a fair construction oi \^r~*^s~*+-s these instruments, nor to a decided support of them ac- METHO. EPIS. cording to their object and intention, without suffering CHURCH ourselves to be embarrassed by such technical rules I wish JAQHES. that I felt myself more at liberty than I do to pursue this course, for the weight of authority seems to impede it ; yet 1 apprehend the cases are too unsettled and contradictory to afford any certain conclusion on the point. They are. certainly, in favor of the position, that a married woman is considered in equity, with respect to her separate property, as a feme so/e, and is held to have an absolute dominion oi power of disposition over it, unless Aer power of disposition be restrained by the deed or will under which she became entitled to it. The next question then is, When does the deed restrain her ? I think she is to be deemed restrained, in the present case, to the modes of disposition mentioned, and [ * 90 ] that her *husband cannot set up any other less solemn alienation against her. Here, also, the weight of book authority, and especially of the writers who have treated on this branch of the law, is against this conclusion : they seem to hold, that there must be an express restriction upon alienation, either absolutely, or in some other mode than the one mentioned, or the wife will not be bound. But if the intention be equally clear and certain in the instrument in question, why should more explicit language be required ? The intention evidently was, in this, as it is in most other cases of property settled to a married woman's separate use, *Jiat the interest should be unalienable, except in the mode provided. Then why should not the Court give effect to that intention? There is no sufficiently uniform and un- ruffled current of authority to prevent it. It may not be amiss to examine the adjudged cases, in respect to this power of disposition in the wife over her separate property settled to her separate use. There is instruction to be gathered on the march, though the path be dreary. In Powell v. Hankey and Cox, (2 P. Wm. 82.) the wife, before marriage, and with the consent of her intended husband, conveyed her real estate to such .uses as she, during coverture, should appoint, and she assigned her bonds and mortgages to her separate use : during coverture, and for the course of ten years, she constantly permitted her husband to receive the interest of her bonds and securities, without any complaint, either to the debtors or to her trustees. In a suit by her, after her husband's death, it was held, that as to the interest so received, every reasonable intendment was to be made against the wife, and her consent to her husband's receipts of such interest was to be presume^, 76 CASES IN CHANCERY. 96 and he had probably received and lived upon it as a gift, 1817. But his estate was held accountable for any part of the ^r^,^^/ principal which had been received. METHO. Ens This rule was followed in the decree in the cause now *before me, and the case is an authority for the allowance of JAQUES. the second exception, and equally so against the claim to any [ * 91 ] part of the principal of the wife's estate, as advanced under ihis fourth exception. The cases of Squire v. Dean, (4 Bro. 326.) Smith v. Camelford, (2 Ves. jun. 698.) and Brodie v. Barry, (2 Ves. and Beam, 36.) equally show that the wife may authorize the husband, in any informal manner, to receive the income, profits, or dividends of an estate settled to her separate use ; and her consent that he should receive them for the purposes of the family will even be inferred from the fact of his having actually received and applied them, from time to time ; and that presumption will stand good, until destroyed by proof to the contrary. While the presumption of her assent re- mains, the husband's estate will not be held to account, at least for more than one year's income so received ; but there is some discordance, among the cases, whether an account of the income of the wife's estate can be taken against the husband, even for one year, when he has been permitted by the wife to receive the income, and has applied it to family purposes. The cases of Powell v. Hankey, Squire v. Dean, and Smith v. Lord Camelford, already cited, and Dalbiac v. Dalbiac, (16 Vesey, 126.) seem to be against such an allow- ance ; but the cases of Toivnshcnd v. Windham, (2 Vesey, 7.) Peacock v.Moiik, (Ibid. 190.) and Parties v. White, (11 Vesey, 225.) are in favor of it. The same rule applies upon settlements of pin money, where the wife has permitted the arrears of pin money to accumulate, without demand, and the husband, in the mean time, has maintained her. (Thomas v. Bennet, 2 P. Wms. 340. Countess of Warwick v. Edwards, 1 Eq. Cas. Abr. 140. pi. 7. Lord Hardwicke, in 2 Vesey, jun. 7. 190. Fowler v. Fowler, 3 P. Wms. 355.) In respect to these cases of income and pin money, the leaning of ine Court has oeen too mucn against me wire, *and the presumption of her consent too freely indulged. [ * 92 J Lord Macclesjield observed, in one of the cases, (2 P. Wms. 82.) that "it was against common'right that the wife should have a separate property from her husband, and, therefore, all reasonable intendments were to be admitted against her." He also observed, that though the wife was kept in awe, and hindered from making her demand, by reason of her husband's temper, yet she might have com- plained to her trustees, and even if there was no other person 77 CASES IN CHANCERY. 1317. MGTHO. EPIS. CHURCH v. JAQUKS. [*93] than her husband of whom to demand her allowance, she would be concluded if she made no demand, even if she probably might be afraid to do it. In one other of the cases, (3 P. Wms. 355.) Lord Talbot says, that though the husband settles an annuity in trust for his. wife's separate ule, yet if he provide her with '" clothes and other necessaries," it will, for the time, be a bar to any demand for arrears. Such strong aversion to the wife's independent enjoyment of her separate estate, manifested so early in the history of the cases, may have given a permanent tone and color to the doctrines of the Court ; and, perhaps, the language of these cases will not now be thought to be founded in equity and justice. The doctrine of Lord Talbot did away all the beneficial effect of the settlement ; for if the mere supply of necessaries (which the husband was bound at all events to furnish) be a bar to the provision, the settlement becomes utterly nugatory. It is as idle as it would be ducere sulcos in jjulvere. In Norton v. Turville, (2 P. Wms. 144.) the wife, before marriage, with consent of her intended husband, con- veyed an estate to her separate use, and during coverture she borrowed money upon bond. Her separate estate was held liable, after her death, for this bond, though it was admitted that the bond was void, and the giving of it was certainly not within the purview of any disposition of her estate, any more than if she had become bail, or bound in recognizance. The decision *was utterly irreconcilable with any known principle ; for if she was to be deemed a font, sole, it could only be as to the control and disposition of her separate estate, and the giving of the bond was no such act. It is said, in some subsequent case, that the wife had the power of appointment by deed or will ; and as the separate estate is here stated to have been " a trust estate for the pay- ment of debts," it is probable she made it so by will, and then the decision stands on good ground. Lord Hardwicke was also disposed to carry the wife's power of disposition over her separate estate, settled to her separate use, to a dangerous extent, and inconsistent, as I humbly conceive, with the policy and the intention of the provision. In Ridout v. Lewis, (1 Afk. 269.) his lordship stated it to be a general rule, that if the wife suffered her husband to receive what she had a right to receive to her separate use, and they continued to cohabit together, it implied a consent in the wife to submit to such a method ; and he said she might come to an agreement with her husband in relation to any thing she was entitled to separately. This was the case of an annuity settled by the husband upon the wife ; and here the presumption of her consent was rebutted, and her 78 CASES IN CHANCERY. 93 husband's estate held to account for short payments, for 1817. several years. ^^~^~**-' There is nothing peculiar in this case, though Lord METHO. EPU Hardwicke did not explain the nature of the agreements the wife might make with the husband, nor under what guards JAQUES and checks, if any, they were to be made. The dictum is too loose to be of any weight. But in Stanford v. Marshall, (-2 Atlc. 69.) a trust of real estate was created for the benefit of daughters, and the rents and profits appropriated for their separate use, whether sole or covert, and to be paid to whom they should appoint. They became surety in a bond with their husbands for their debts, and the rents and profits of the trust estate were held responsible *to the creditor, be- [ * 94 ] cause the daughters had an absolute power over them, and could create any lien on them. This was decided at the rolls, and the principle was correct, that the daughters had the power to assign the rents and profits, by mortgage or otherwise ; but there is no reasoning to show that the wife could create a lien on the rents and profits, by giving a bond for her husband's debt. The bond was null and void, and had no reference to the separate estate. The principle had no application to the case. In another case, ( Cleric \. Miller, 2 Aik. 379.) a married woman, having a separate estate, promised to pay her husband's workmen ; and the master of the rolls there doubted whether her bare promise, by parol, could bind her lands. It is difficult to perceive upon what reasoning or doctrine the bond, or parol promises, of a. feme covert, could for a moment be deemed valid. She is inca- pable of contracting, according to the " common right" men- tioned by Lord Macclesjield ; and if investing her with separate property gives her the capacity of a feme sole, it is only when she is directly dealing with that very property. The cases do not pretend to give her any of the rights of a feme sole, in any other view, or for any other purpose. In Allen v. Papivorth, (1 Vesey, 163, and Belt's Supple- ment, p. 88.) the wife, on a bill by her and her husband, submitted, that the profits of her separate estate should be applied to pay her husband's debts, and Lord Harilwicke held her bound by that submission ; and that, as she had the power to receive the profits o. an estate to her separate use, and to appoint them as she pleased, the bill and submission were equivalent to an actual appointment. In that case there was no mode of exercising the power prescribed ; and perhaps this mode by bill, when her free consent can be ascertained, may be deemed as safe and expedient as r ny other mode of appointment. In Ellis v. Atkinson, and Clarke v. Pistor, (3 Bro. 347. note,) and Chesslyn v. Smith, (8 Vesey, 183.) the profits 79 95* CASES IN CHANCERY. 1817. *f stock were settled to the separate use of the wile, an x^rf^-v^x as she should designate in writing ; and her consent, signified METHO. EPIS. by a bill filed jointly by her and her husband was deemed CHURCH sufficient. Yet even here the cases are contradictory, or else JAQUES. they are separated by very subtle distinctions, for in Black- wood v. Norria, (cited in Cas. temp. Tallot, 43.) where a wife had 4000 pounds devised in trust for her separate use, ,he master of the rolls would not, on a bill by husband and wife, allow the trustee to pay to the husband, though the wife was in Coutt and consenting. The only question, in Peacock v. Monk, (2 Vescy, 190.) was, whether the wife could make a will of real property purchased by her during coverture ; and there is no decision that affects the general question ; but Lord Hardwicke said that the wife might dispose of her separate personal estate, by act in her life, or by will, though nothing was said in the marriage settlement as to the mode. The nature of the act is not here explained, and he probably meant by deed, as contradistinguished from a will ; but he went further with his dicta, and said, that the wife could charge her separate estate by her bond. The cases that have occurred on this point have been considered. Mere dicta are dangerous guides ; and if listened to as authority, they become very prejudicial to free investigation and accurate science. When any great principle of law is under discussion, it is safest to recur only to the decision of adjudged cases, and to confine them to the point in controversy. In Grigly v. Cox, (1 Vesey, 517.) there was a marriage settlement of an estate, in trust for the wife, to receive the rents and profits for her separate use, and as she should direct and appoint. There was no form of appointment mentioned. She, by deed of appointment, sold part of the estate to a tn; r d person, without consulting her trustee, and with the concurrence of her husband. Lord Hardwicke held the pur- [ * 96 ] rhase to be valid, and the consent of the *trustees not neces- bary. He laid down the rule of the Court to be, that where any thing is settled to the wife's separate use, she is consid- ered as a feme sole, and may appoint in what manner she pleases, and that her trustees need not join unless made necessary by the instrument ; and that the wife might make an appointment in favor of the husband, if fairly procured, without improper influence, by ill, or by extraordinary good usage, to induce her to it. The answer of the wife in that case (see Belts Supple- ment, p. 218.) averred, that she had executed the deeds by the threats and compulsion of her husband, but the answer was not supported by proof; yet this very defence admon- ishes us of the danger of allowing the wife to act without the 80 CASES IN CHANCERY. 90 aid of her trustee, who was created for her protection, and 1817. who constitutes, perhaps, the only sufficient shield against ^^-x^**^ the undue, secret, and powerful influence of the husband. METHO. Ens In the next case of Pawlet v. Deleval, (2 Vesey, 1563.) the CHURCH subject of the wife's power, in the disposal of her separate JAQUES. property, came again in discussion. The wife, by an agree- ment with the husband upon the marriage, had property vested in trustees for her separate use. During the coverture, she and her husband called in the money, and by two deeds executed by them and the trustee, they recited the fact of the property being in trust for her separate use, and that it was subject to her direction and appointment, ivithout any particular form prescribed, and that the husband and wife had agreed to receive the money and discharge the trustee. The money was paid to them, with the approbation of the trustee, and reinvested in the husband's name, and the trustee dis- charged. The husband continued to receive the interest afterward during his life, and the wife, as his executrix, after his death, by various acts, affirmed the transaction. Lord Hardwicke held her barred ; but in the long and elaborate opinion which he delivered, he relied on the confirmation she had given when a widow ; *and " it is very clear," said. Lord [ * 9* Rossi/In, in a subsequent case, " that the chancellor, in this case, did not entertain the idea that a married woman, having separate property, was, to all intents and purposes, placed on the same footing as a. feme sole." He mentioned the agree- ment to vest the property in the husband as being under their hands and seals, and that the trustee was an executing party. There were several observations made in the course of this opinion by way of illustration, which formed no part of the decision. Thus, he said, he knew of no determination re- quiring the intervention of a trustee, or a judicial consent in Court, to enable the wife to dispose of her separate property to her husband, and that there were instances where the wife, by acts in pais, had parted with her property to her husband, and also where they had pledged a part of it for his debts. But he admitted, that if the circumstances required by the trust had not been pursued, the Court might disregard the disposition. These are the material cases on the subject in the time of Lord Hardwicke; and though these decisions have been considered as controlling the better judgment of Lord Thur- low, and as binding Lord Eldon to allow the wife a power of disposition beyond the policy and intention of the settlement, yet it is to be observed, that not one of them gives the wife a right of disposal contrary to the form of appointment pre- scribed by the instrument ; and it would seem that these de- cisions have been cited in support of doctrines which they can VOL. III. 1\ 81 97 CASES IN CHANCERY. 1817. ^v*. METHO. EPIS CHURCH v. JAQUES. [*98] never be made to sanction. The most objectionable parts of those cases are not decisions, but extrajudicial dicta. There is one decision of Lord Hardwicke which ought not to pass unnoticed, because he was there induced to maintain the limited powers of the wife, contrary to the language of the former cases. I allude to the case of Caverley v. Dudley and Bisco, (3 Atk. 541.) where an estate, *real and personal was settled, in trust, to pay the produce thereof to the wife for life, for her separate use, exclusive of her husband, and she borrowed money on an annuity for her life granted out of that estate. The chancellor held, that " it was not the intention of the grantor that the wife should anticipate the produce of her estate, by raising money upon it, and words should have been thrown into it to restrain her from doing it ; but as there were no such words, she might raise money by way of loan, but not by way of annuity for her life, as it was too large an anticipation." This decision is evidently inconsistent, for it must have been as much against the intention of the settle- ment that she should anticipate the produce of the estate by loan, as by an annuity ; and Lord Eldon, in Jones v. Harris, (9 Vesey, 494.) pointedly condemns such arbitrary dealing with a contract. In Newman v. Cartony, (3 Bro. 347, note, and 568.) there was a stretch beyond any of the preceding decisions ; for the wife had a legacy given for her sole use, with a power of ap- pointment by will, and in default, to her executors ; and Lord Bathurst ordered the money to be paid to the husband, with her consent. The note of the case is extremely imperfect, and we are left to infer that it was the case of a bill filed, and a consent given in Court. But the objection to the case is, that the grantor had prescribed the mode of appointment, by will, and the mention of a particular mode excluded others. The property was intended to be unalienable, except in the mode prescribed ; and what right had the Court to defeat the settlement ? The argument in support of the decision may be, that the wife had an absolute gift, with all the rights of owner, as a feme sole, and that the restriction on her right of disposition, except by will, was inconsistent with that right, and void. This argument proves too much ; for it would de- stroy all the express limitations and provisoes thrown into these settlements ; and, besides, such a technical legal *ob- jection is inapplicable to the views with which these provisions are considered, and the purposes for which they are upheld in equity. The case of Hulme v. Tenant (1 Bro. 16.) was the one that first brought the subject of these settlements before Lord Thurlow. A leasehold and freehold estate had, on a mar- riage settlement, been conveyed to trustees, to receive and 82 CASES IN CHANCERY. 99 pay the rents and profits to the wife for her separate use, and 1817. to convey the estate itself to such use as she, by deed or will, \^*-^~+^ should appoint. The wife joined in a bond for her husband's METHO. EPIS debts, and on a bill filed by the obligee, seeking to enforce C U RCH the bond against the wife's separate estate, Lord Bathurst JAQUES. dismissed it; but on a rehearing before Lord Thurloiv, he sustained the bill, and directed an account of the rents and profits of the leasehold estate of the wife, for the purpose of satisfying the bond. He would not touch the freehold estate. Lord Eldon said, (9 Vcsey, 188.) that this was a prodigiously strong case, though it was afterwards shaken. It cannot be considered as very strong, on the ground of authority, for the preceding chancellor was of a different opinion, and made a different decree in the very case. In giving his opinion in that case, the lord chancellor held that a feme covert, acting with respect to her separate property, was competent to act, in all respects, as if she was a. feme sole; yet this rule does not appear to be consistent with what he says, in this same case, when he holds that it is different where the consent of the trustees is made essential. He maintain- ed, that a Court of equity would make a, feme covert bound to the whole extent of her separate estate for her personal engagements ; yet he admits that her bond was void, as such, and that there could be no personal decree against her, and that he could not touch her real estate, by ordering her to execute the power of appointment, to satisfy her personal engagement. The great difficulty which the chancellor had in granting the *remedy, and the necessity he felt of stopping [ * 100 short of entire relief, arose from the innovation which had been made upon the principle of these settlements. The whole decision was perplexed and inconsistent. The giving the bond had nothing to do with an exercise of power over the separate estate, and was no execution of a power of ap- pointment. If it was, it ought to have bound the land, as well as the rents and profits; and if the wife's bond, having no reference to her estate, or power over it, be available, she may equally bind herself by all possible personal engagements, as much as a feme sole, to the extent of her property. But Lord Thurlow, afterwards, in Ellis v. Atkinson, (3 Bro. 347, note, and p. 565 ; Dickens, 759, S. C.) paused upon the consequences of this doctrine, and doubted very much whether, upon a settlement in trust that the interest of money in the funds be paid 'nto the hands of the wife, or as she should, by writing, from time to time, appoint, he could even accept of the wife's consent in Court, on a bill by hus- band and wife, to carry into effect an agreement of theirs, by a sweeping disposition, by deed, that the interest for their ioint lives should be paid to the husband. However, after 83 100 CASES IN CHANCERY. 1817. METHO. Ens. CHURCH v. JAQ.UES. [M01J [ * 102 ] several hearings and long consideration, he made the deereo in pursuance of the wife's deed, and her consent in Court. This case was by no means so strong as that of Hulme v. Tenant ; and upon the principles of that decision, there could have been no hesitation. But here the appointment of the interest was to be from time to time; and the intention un- doubtedly was, that the power was to be exercised occasion- ally upon the dividends as they should grow due, and not by way of anticipation upon the whole at once ; and if that in- tention had prevailed, instead of the technical rule of law, which holds such qualification upon the power of disposition to be inconsistent with absolute ^ownership, the decision in that case must have been different. The same point arose again, in Pybus v. Smith, (3 Bro. 340. 1 Vese$,jun. 189. S. C.) In that case, there was a settle- ment after marriage of real and personal estate, in trust, to pay the rents and dividends, as the wife should, in writing, from time to time, direct; and in default thereof, to pay them into her own hands, for her separate use. She and her hus- band, by deed, conveyed the property, by a general sweeping appointment, to her husband's creditors, as a security for his debts. On a bill by the creditors, Lord Thurlow carried the deed into effect, but he professed to act upon the authority of the prior cases, and directly against his own inclination and judgment. He said, that " if the point was open, he should have thought that a feme covert, who had a separate estate, should not part with it without a judicial examination ; " and he wished, to adopt the principle that, " so far forth as the instrument, creating her separate estate, makes her propri- etor, so far she was a feme sole ; and if she had pledged the estate, according to her power, the trustees must hold it to the uses she appoints." He said, further, that " if the trust was to pay the rents and profits to her, upon any instrument signed by her since the last pay day, an instrument signed before would not do." Yet he concluded that h,e had gone too far on a former occasion, and that if the feme covert " saw what she was about," the Court must support her alienation. I cannot see the propriety of holding the Court, forever thereafter, bound by a decision made on principles confessedly false, or pushed " too far." It is admitted, in this case, again and again, that the wife has no power over the estate but what the instrument gave her; and this is a doctrine intelligi- ble, just, and sound. " If it was the intention of the parent," he observes, " to give a provision to a child in such a way that she cannot alienate it, *he saw no objection to its being done ; but such intention must be expressed in clear terms." This was making the whole question turn upon a fair con- struction of the deed of settlement, and rather than give these 84 OASES IN CHANCERY. 102 words, from time o time, an operation according to the sense, 1817. in consequence, perhaps, of the embarrassment created by v_ - -^--*^. these decisions, Lord Thurloiv, in Miss Watson's case, caused METHO. EPI.I these words, and not by anticipation, to be inserted in the deeds of settlement, as a bar to these improvident and sweep- ing dispositions, by the wife, of all her future interest in the provision. (1 Rose, 200. 11 Vesey, 221.) And Lord El- don, in a recent case, (Jackson \. Hobhousc, 2 Meriv. 483.) said, that Lord Tkurlow adopted this proviso against the wife's assigning her interest by any mode of anticipation, after struggling hard, for a long time, to bring the wife into a situation consistent with the manifest intention of the settler ; and he held such a proviso valid, and so did Lord Alvanley. This proviso has been followed ever since, and it was supported by Lord Eldon in the case referred to. We come next to the case of Sockett and wife v. Wray, (4 Bro, 483.) which overturned much of the doctrine of Lord Thurlow, and which, on many accounts, merits all our attention. The settlement was of stock, in trust, and by a deed, to which the husband and wife were parties, to pay the dividends to the wife for her separate use, and with power in her to dispose of the stock by will. The husband and wife, by bill, sought to compel the trustees to sell the funds, and pay the money to the husband. The master of the rolls (Lord Alvanley) held that the wife could not waive the benefit of the settlement, and give the capital away ; and that she could only dispose of it in the mode provided by the settlement, which was by will, being an act ambulatory and revocable in her lifetime. He held, that the wife had no disposing poiver but what teas given her *by the deed, and he meant to ques- f * 103 tion the decision in Neivman v. Cartony, and Hulme v. Ten- ant, E'lis v. Atkinson, and Pybus v. Smith. This case has been much doubted since, and it would seem to have been directly overruled by Sir Wm. Grant, in Heathy v. Thomas, (15 Vesey, 596.) for it was there held, upon a parallel settlement and power, that the wife had an absolute interest, and might bind the estate by her bond, and was not confined to the will, which was the mode prescribed. But it appears to me, with great respect for the contrary author- ity, that this decision of Lord Alvanley was founded on sound principles of equity and policy, and applicable to the case. So, in Hyde v. Price, (3 Fesej/,437.) where the husband had settled an allowance, for their joint lives, on the wife, by way of separate maintenance, Lord Alvanley would not permit the wife to grant an annuity out of the dividends, for that would defeat the intention of f ,he instrument, and leave the wife with- out a maintenance. I do not know that this last decision has ever been questioned, yet it seems to rest on the same princi- 85 1 03 CASES IN CHANCERY. 1817. METHO. EPIS. CHUROH v. JAQUI;S. 104] pie as the other, of giving effect to the intention of the in- strument, and to the policy and utility of the provision ; anc the wife had, in equity, as clear and stable an interest in these dividends, as she could have had in any other property, by settlement. Lord Rosslyn has, in several instances, pursued the same course of reasoning and decision, and dissented entirely from the extreme length to which Lord Thurlow had pushed the disposing power of the wife. In Milnes v. Burlc, (2 f- r esey, jun. 488.) he observed, that he did not assent to the position in its full extent, that where a married woman had separate property, she was, to all intents and purposes, to be considered a feme sole. This doctrine had been carried a great deal further than it was meant, and he did not think it ought to be applied to transactions with her husband, for that would throw down *all the guards which the maxims of the common law, and the prudence and care of the Court, had established, with regard to trust estates, in equity, and the influence of husbands. He said, that Paw- let v. Delaval was the only case arising directly upon a gift between husband and wife ; and there Lord HardicicJce placed the validity of it essentially upon the confirmation of the wife after her husband's death. In Whistler v. Newman, (4 J^esey, 129.) Lord Rosslyn went more largely and freely into the consideration of this perplex- ed and litigated subject. The settlement, in that case, was of stock, the property of the wife, in trust, to pay the dividends into the hands of the wife during her life, for her separate use, free from the debts, intermeddling or control of the husband, and that her receipt alone should be a sufficient discharge, and after her death, to the use of the husband for life, and then to her children, or according to her appointment by will. The trustees, at the request of the wife, sold the estate, and paid the money to the husband, taking his bond of indemnity, to which the wife was a witness. The husband died insolvent, and the widow and children, by bill, sought to compel the trustees to replace the stock, and pay the dividends to the widow from the hus- band's death. It was contended, on one side, (and Sir John Scott was one of the counsel who so contended,) that, according to the decis- ions of Lord Thurlow, the wife was competent to deal with that property as a. feme sole, by becoming surety for her hus band's debts, or by making him a present of the whole fund ; while, on the other side, it was contended, that it was not within the provisions or intention of the settlement, that she should assign the whole fund. Il is to be observed, that here was no mode of disposition 96 CASES IN CHANCERY. *105 or appointment of her life estate mentioned, and the case i817. does not 3 therefore, come up to those where a mode of ap- ^^^^^^^ pointment is mentioned. But the chancellor considered *the METHO. EPIS act of the trustees a gross breach of trust ; for they were con- ' HI ^ KC stituted to guard the wife against the influence of the husband. JAQVEU. He considered that the act of taking a bond of indemnity, and getting the wife's consent by making her witness the bond, was an iniquitous desertion of their duty. It was considered that the wife had no power in that case to assign the stock itself, or the principal. The chancellor took occasion to ob- serve, that the doctrine in Hulme v. Tenant took away all protection from married women, and made trusts for their oenefit of very little importance ; that if this rule in that case, and in Pybiis v. Smith, and Ellis v. .Atkinson, was to be pushed to its full extent, a married woman having trustees, and her property under the administration of chancery, was infinitely worse off, and more unprotected, than she would be if left to her legal rights, which the husband cannot, proprio marie, affect. Her legal rights could not be" taken from her, (as was attempted in that case,) without a formal deed, or by implication and inference from conversations and conduct. Upon Pybus v. Smith, it would be the vainest act to make a settlement. Lord Rosslyn evidently considered, that there was a great difference between a dealing between the hus- band and the wife, or between a creditor and the wife, in respect to her separate interest, and that the same strictness might not be necessary in the latter case. He thought, that if a creditor, dealing with a married woman, had got any legal hold of her property, equity might leave the legal right undis- turbed, but would certainly never assist or improve it. The last case on the subject before Lord Rosslyn, was that of Mores v. Huish, (5 Vesey, 692.) in which the wife had a life interest given to her in the rents of a freehold estate, without any power of appointment, otherwise than that the same were to be solely at her disposal. She joined with her husband in' securing an annuity to a purchaser, upon these rents, who took the security, contrary to the ^remonstrance [ * 106 of the trustee. The bill was filed by the purchaser against the trustee, and the chancellor refused to aid him, and doubt- ed whether a trust to receive rents, and pay them, from time to time, was a trust to pay by anticipation. This decision arose from Lord Rosslyn's reluctance to sanction these im- provident and sweeping dispositions of the wife ; but the case was clearly overruled in Essex v. Atkins, (14 Vesey, 542.) ^n the doctrine, that if the wife acts freely, she can bind her separate property, without the assent of the trustees, unless the instrument giving her the property render that assent necessary . 87 106 CASES IiN CHANCERY 181 /. WETHO. EPIS. CHURCH v. JAQUES. 107] Under such restrictions, and amidst such confusion ana alternation of authority, stood the disposing power of the wife when Lord Eldon succeeded to the great seal. I do not intend to fatigue myself with entering minutely into the consideration of all the dubious and contradictory cases and opinions to be found since that time, and shall notice only ? few of tie most material and prominent decisions. The law of the Court will be found to be ultimately settled, that the terms of the instrument are to govern, and the intention of the settlement, with its restrictions, is to prevail. In Sperling v. Rochfort, (8 Vesey, 164.) there was a bill by husband and wife against trustees, to be permitted to give up her interest for life in a trust fund ; but as the estate was not settled to her separate use, the question on the extent of the wife's power over her separate estate secured by a settlement, did not arise. The chancellor, however, took occasion to observe, that upon all the cases together in respect to the wife's power, it was impossible to know the result, and that those before Lord HtirdwicJce's time went very much to the extent, that to all intents, as to separate property, the wife was to be considered a feme sole. In Hulme v. Tenant, the bond was nothing like the execution of a power, and yet Lord Thurlow held it a sufficient indication of the wife's in- tention to bind *her. So, in Pybus v. Smith, the property was guarded by those terms which are thrown into the settle- ment for her protection, and yet Lord Thurlow most reluc- tantly allowed the wife's disposition for the benefit of her husband's creditors. There was the same reluctance, but the same decision, in Ellis v. Atkinson. In such strong language did his lordship expose the in- justice and unreasonableness of the decisions of Lord Thur- low ; and he added, that though he could not reconcile all that was said by Lord Rossi yn, in Whistler v. Newman, to former cases, he wished the law might turn out for the pro- tection of married women, to the extent in which it is there represented. In Rich v. Cockell, (9 Vesey, 369.) stock was settled in trust to pay the proceeds for the sole and separate use of the wife as she should direct, and that her receipt was to be a sufficient discharge to the trustee. The power of disposition, whether by deed, will, or other writing, was not determined in that case ; and Lord Eldon said, that it was settled, in Ftttiplace v. Gorges, (1 Vesey, jun. 46. 3 Bro. 8.) that the wife had a power of disposition by will, as incident to such an interest, though as to other property she cannot make a will without her husband's assent. He thought she might have a power to dispose by an instrument not amounting to a will. He did not specify what other instrument would be 83 CASES IN CHANCERY. 101 sufficient, though a gift to the husband could not be inferred 1817. without clear evidence. The learned counsel insisted, that v^*-^~^_, the Court would, at least, require some declaration in writing. METHO. EPIS Again, in Jones v. Harris, (9 Vesey, 497.) Lord Eldon con- CHURCH sidered it to be an open question, and one doubtful, and de- JAQUKS serving of a very full review, whether the separate property of SL feme covert might be charged in a different form from that prescribed by the instrument, on the ground that she was to be considered, to all intents and purposes, as a feme sole. *h v/ill be recollected, that the settlement in the case before [ * 108 ] me prescribed the mode of disposition to be by deed or will, and that the husband has set up, in his own favor, a disposi- tion by parol ; I have, accordingly, adopted the advice given by this eminent judge, and have endeavored to give "a full review " of the cases ; and they have produced an entire con- viction, in my mind, that such a parol disposition, or any other different from the one prescribed, is, and ought to be, inadmissible. In the above case, there was nothing said about a power or mode of disposition. So, in Wagstaffv. Smith, (9 Vesey, 520.) there was the like settlement of dividends of stock upon the wife, without words of direction, appointment, control, or restraint ; and the master of the rolls held the power of disposition to be incident, that the wife might make such disposition as she pleased, and, therefore, her assignment, to secure an annuity with her husband, was established. Sir Wm. Grant, in that case, observed, that there were cases in which the question was, whether the absolute prop- erty, including a power of disposition, was intended to be given, or whether there was an intention to limit the wife to a per- sonal gift, without a power of disposition. The principle ad- mitted in these remarks, that the intention of the instrument of settlement is to prevail, is solid, and it is all that we con- tend for ; but it must be confessed, that the cases make dis- tinctions on this point too refined to be useful, and so subtle as to be dangerous. Mr. Sngden, in his excellent " Treatise of Powers" (p. 114.) complains of this subtlety, and says that it is almost impossible for a practitioner to advise confidently on any case where the very words have not received a judi- cial determination. We have a sample of this species of discrimination in Richards v. Chambers, (10 Vesey, 580.) where property was settled in trust for the sole and sep- irate use of the wife for life, and if she survived her husband, then to her ^absolutely ; but if not, then as she by deed or [ * 109] will should appoint. She executed an appointment in favor of her husband, and they both applied to the Court to have it confirmed The master of the rolls held that she had a VOL. III. 12 89 109 CASES IN CHANCERY. 1817. contingent interest, in the event of surviving her MKTHO. EPIS CHURCH v. JACQUES. [* 110] husband. which she could not give up while in a state of coverture She had an estate for life, with a contingent interest in fee and a power to dispose of that interest, by deed or will. He said, " that the wife, while sui juris, means to make a provision for herself in the event of her surviving her husband. Such are the terms upon which alone she chooses to contract, while in a condition to exercise her free and unbiased judgment. She wishes to put that out of her reach, and secure it frorr the effect of the influence and solicitations to which she ma) be afterwards exposed. Why should a Court of equity, pro- fessing to watch over the interests of married women, say that a woman about to marry should not be allowed to secure to herself this kind of protection, arising from a legal incapacity to act ? " " The husband can have no claim of right to her interest, with his concurrence created for her benefit." It appears to me, that this reasoning condemns many of the cases we have reviewed, and goes to sanction all that Lord Alvanley and Lord Rossyln have said on the subject, and to bear against many of the subsequent decisions of this same master of the rolls. In Parker v. White, (11 Vesey, 209.) the subject came again before Lord Eldon, and was much discussed. The chancellor disclosed the impression which he had received, as early as the case of Whistler v. Newman; for he says, that he then thought the law settled by the cases of Ellis v. At- kinson, Pybus v. Smith, Huhne v. Tenant, Peacock v. Monk, &c. In that case, an estate was conveyed in trust, for the use of the wife for life, solely and separately, free of her husband, *&c., and in trust, after her death, to such persons as she should by will appoint, and in default thereof, she had an eventual reversion in fee. The husband, wife, and trustee, united in a deed conveying her life estate, and the husband and wife, afterwards, levied a fine of the estate, and she de- vised it to the purchaser. On a bill by her to set aside these conveyances, charging a want of consideration, and the con- duct of the husband, the sale was established as to her life estate and reversionary interest ; but her will was set aside. and the trustee held guilty of a breach of trust. In discussing the case, Lord Eldon observed, that it was extremely important, that the power of the wife over her sep- arate estate should be, once for all, well decided, and that his mind ivas in great distraction upon the subject. He admitted that Lord Thurlow felt' a very strong inclination to control the unlimited power of the wife, and that his reasoning, in Pybus V. Smith, was unanswerable, if the point had been open. He seemed to think, that, upon true principle, if the settlement 90 CASES IN CHANCERY. 110 made the, wife so far a feme sole, yet that the nature and ex- 181* tent of her capacity ought to be collected from the terms of v^-v ^^> the instrument from which she derives that capacity. It is to METHO. KIM* be regretted, that his lordship did not feel himself at liberty to follow such a plain and unanswerable argument; for the JAQUES wife, in that case, having a power by will to appoint after her death, the instrument evidently intended that she should ex- ercise her power over that part of her interest in no other way ; expressio unius est exclusio alterius. Lord Eldon continued to observe, in that case, that informal instruments, and acts of different sorts, had been held a sufficient evidence of the wife's intention, and that it was no objection, if the disposi- tion is to satisfy the debt of the husband, or be a gift to him ; and he concluded, that the decision in Whistler v. Newman was inconsistent with all the declarations of the Court, for a century. *With the highest respect for the learning of Lord Eldon, [ * 1 1 I J 1 have not been able to perceive sufficient evidence of the historical accuracy of some of these dicta. I do not know in what case the wife's disposition of her separate property was admitted, where there was not some pretty formal and authentic evidence of her intention ; and the decision of Lord Rosslyn was not such a lawless departure from all precedent. The wife, in the case he alluded to, had a mode prescribed, as to the disposition of the stock after her death, viz. by will ; and yet she sold the whole at once, for the benefit of her husband. This was, indeed, contrary tc Newman v. Cartony ; but that case had been overruled by Socket v. Wray. Lord Eldon uniformly admits the true principle to be with Lord Rosslyn, and that Lord Thurlow always thought so, and that the point was unsettled, confused, and distracting. Why, then, may we not .decide according to sound principle, and place the rights of the wife on a safe and durable foundation ? In a series of cases decided by Sir Wm. Grant, the doc- trine has been maintained, that the wife had a disposing power over her separate property, without examination, and without the assent of trustees, when the instrument of settle- ment did not restrain her, and that the power extended as well to her reversionary interest as to that in possession. But in some of these cases, I apprehend, the doctrine has been applied, when a fair construction of the instrument did not seem to warrant it ; and the decisions of that very able and enlightened judge appear to me to be a little inconsistent with each other, or to be founded on distinctions not easily to be perceived. Thus, in Witts v. Daivhins, (12 Vesey, 501 .) the trust was to pay the profits of land to her appointment, 91 Ill CASES IN CHANCERY 1817. from time to t:~ne; yet she was allowed to make a sweeping ^^-^-*^/ appointment, by sale, at once, of her whole life interest. So, METHO. EPJS. in Sturgis v. Corp, (13 Vesey, 190.) there was a trust to ?ay CHURCH an d apply the dividends of stock into her proper hands, tor JAQUES. her *separate use, after the death of A., and she was allowed f * 112] to sell this reversionary interest in the lifetime of A. This was, to all appearance, a mere personal interest, over which no such power existed ; and so Sir Wm. Grant had held, in Hovey v. Blakeman, cited by him in Wagstaffv. Smith. (9 Vesey, 524.) The two decisions are irreconcilable ; and Mr. Sugden thinks, that if Hovey v. Blakeman had been recon- sidered, the decisions would have been otherwise. I think, with that writer, that one of the cases was erroneously decided; but I should differ from him in the selection of the case. Again, in Brown v. Like (14 Vesey, 302.) there was a trust to pay dividends to the wife for life, for her separate use, and her receipts, from time to time, to be good ; yet her sweeping power of appointment was established. In Heatly v. Thomas, (15 Vesey, 596.) there was a like trust, with a special power to dispose of the principal by will, and yet her bond was enforced against her separate estate. The like de- cision was made in Bullpin v. Clarke, (17 Vesey, 365.) where the trust was to pay the rents into her hands, or as she should appoint, and they were held bound to a creditor in satisfaction of her note, though the note had no reference to her settled property, and was not, by any reasonable intendment, an appointment under the power. But in Lee v. Muggeridge, (1 Vesey and Beame, 118.) where the trust was to pay the rents, as the wife should by writing direct, during the joint lives of her and her husband, and to her use in fee, if she should survive him, and if he survived her, to the use of such persons as she should by will direct, and no power of disposition over it, during the coverture, was mentioned, the master of the rolls held, that the income only, and not the capital of her separate estate, could be bound by the bond. The last case I shall mention is that of Francis v. fVig- zell, (1 Haddock's Ch. Rep. 258.) which arose on a bill for a specific performance of an agreement of husband and [ * 1 3 ] *wife to sell, she having separate property. I cite the case only for the opinion of the vice-chancellor, in which he lays down this proposition ; that " a feme covert, having separate property to her own use, may, generally speaking, dispose of it as a feme sole ; but if the instrument by which she acquires it, prescribes any particular mode by which she must part with it, her disposition of the property must be according tc the terms of such instrument." Now, this declaration, if it be 92 CASES IN CHANCERY. 113 worth any thing, brings the point back again to the doctrine 1317. of Lord Ahantey. Sit modus lasso viarum. v^^-v^^^ I apprehend, we may conclude, (though I certainly do it METHO. EPI. with unfeigned diffidence, considering how great talents and CHURCH learning, by a succession of distinguished men, have been JAQUKS exhausted on the subject,) that the English decisions are so floating and contradictory as to leave us the liberty of adopting the true principle of these settlements. Instead of holding that the wife is a feme sole, to all intents and purposes, as to her separate property, she ought only to be deemed a A feme covert, feme sole, sub modo, or to the extent of the power clearly jj^ h ^'parale given by the settlement. Instead of maintaining that she property, is to has an absolute power of disposition, unless specially re- jl^^l^ihe strained by the instrument, the converse of the proposition extent only of would be more correct, that she has no power but what is l^er^by' The specially given, and to be exercised only in the mode pre- marriage set- scribed, if any such there be. Her incapacity is general ; power'' of dis- and the exception is to be taken strictly, and to be shown in position is not every case, because it is against the general policy and ^J,^ to i"e immemorial doctrine of law. These very settlements are exercised M- intended to protect her weakness against her husband's ^ode" prcscri- power, and her maintenance against his dissipation. It is a bed in the set- protection which this Court allows her to assume, *or her [*114] friends to give, and it ought not to be rendered illusory. tiement. if she ._.. i & i i 11 i " as a power of 1 he doctrine runs through all the cases, that the intention appointment by of the settlement is to govern, and that it must be collected Wltt > . sh . e , caimot f i ,. , TTTI appoint by dear, from the terms of the instrument. When it says she may if she has a appoint by will, it does not mean that she may likewise P wer to a P; i J i , , . . , -iii- poult by deed, appoint by deed : when it permits her to appoint by deed, it the giving .1 cannot mean, that giving a bond, or note, or a parol promise, bond ' . r note> . . _ ' ' . r . ' or parol prom- without relerence to the property, or making a parol gift, is ise, without ref- such an appointment. So, when it says that she is to re- erence to the r i i /. J , property, 01 ceive trom her trustee the income of her property, as it, making a parol from time to time, may grow due, it does not mean that she gift ofit, isnoi . . '. J curate in some instances ; that they have no precision or certainty, as to place or circumstance ; that we have evidence of the allowance of part on other proof, and of the positive injustice of other parts ; and we are justified, and bound, upon all sound principles, to reject the whole. The whole exception is, accordingly, disallowed. A question will arise as to the disposition of the costs Costs, on ex- ?i i- mi 11 / i i i ^ ceptions to a upon these exceptions. The allowance of costs is, no doubt, master's report, discretionary in this, as in other cases; but, I think, it will, are allowed to . ill i i i ' r 11 ^i i eacn P ar 'y on upon the whole, be most equitable and just to lollow the rule the exceptions which I have adopted in other cases, arising upon exceptions j" which 1he y /-i r i /-? r * A ~,~, rVr j /-IT TJ llave resrec- to reports, (1 Johns. Ch. Rep. 44. 77. 2 Johns. Ch. Hep. tivel/ 223.) and allow to each party the costs on the exceptions in ed - 95 - r ^ .17 CASES IN CHANCERY. 1817. which he has been successful. The idea that a party oughl v^^-x^**^ not to pay costs for the mistake of a master, has been so MKTHO. Ens. often controlled, on this very subject of exceptions, as to CHURCH form no safe and certain guide. We have a statute of this JAQUES. state, (laws of N. Y. sess. 38. ch. 96. $ 13.) which allows The mistake costs on reversal of a judgment in error ; and I perceive, that not ifke'thefe* the Court of Errors, on the reversal of decrees of this Court, ror of a judge, awards costs of the appeal to the appellant. However we and is no rule . ,1 r I- r ' i j. T ^i i as to costs. mav regret the application 01 costs to such cases, yet, 1 think, it would be carrying our scruples to a great length, to con- sider every report, in every case, of a master, as partaking so much of the nature of a judicial determination, that the party defending its errors, under exceptions, ought to be protected from costs. This is, certainly, not the established doctrine of the Court. Thus, in the case of The Corporation of Burford v. Lenthall and others. (2 Aik. 551.) there were exceptions to a decree of the defendants, as commissioners of charitable uses, and of these, thirty-nine were allowed, and four dis- allowed. Lord Ch. Hardwicke took time to consider the question of costs, and gave to the exceptants costs upon [* 118] *those exceptions in which they had prevailed, and to the respondents costs in those where they had prevailed. This is a strong decision, and perfectly applicable, in principle, to ine present case. The decision of the commissioners was much more solemn and judicial than that of a master's report. The statute of 43 Eliz. ch. 4, which authorized the ap- pointment of commissioners to inquire of the gift of lands and goods to charitable uses, directed that their orders, judg- ments and decrees should be certified into chancery ; and that Court was directed to take such order for the due execution thereof as should seem fit. The statute further provided, that any person aggrieved by any such decree, might apply to the Court of Chancery, and the Court was to annul, alter, or enlarge the order, judgment and decree, ac- cording to equity, and award costs of suits, in its discretion, against such persons as should complain without just cause. This is all the statute provision in the case ; yet Lord Hardwicke adopted the rule of costs which I have mentioned, and which he found to be according to the established practice of the Court. There are many cases of reference for mere irregularity, where a party has not been allowed costs for a successful exception to the report; yet even there the chancellor held. (3Atk. 234. anon.} that they might, in special cases, be allowed, notwithstanding the master had reported in favor of the other party. The case of Bromfield v. Chicester, (Amb. 464.) is another strong instance in which costs have been allowed ta 96 CASES IN CHANCERY. 118 a party prevailing in his exception to a master's report. 1817. Lord Northington allowed costs here, after the point had ^*-*^^-+^/ been twice discussed, and the cases respecting references for METHO. EPIS irregularities cited and reviewed ; and he insisted that the allowance was just in that case, and that it was a matter JAQ-ES. resting in discretion. I know of no instance which more strikingly illustrates this doctrine than the order of Lord Nottingham, (vide Beame's Orders, p. 261.) making even the party prevailing *on exceptions to a master's report, pay costs in certain [ * 1 1 9 ] cases. I might, perhaps, properly enough, refuse costs on either side in this case ; but to make the defendant pay costs where his exception was not well taken, and not to allow him costs when he prevailed, would appear to me to be an unequal rule. The exceptions, in this case, were generally of grave import, and founded on plausible grounds ; and I have con- cluded it would operate most justly to adopt the rule which I formerly declared between these very parties in this same case ; and I do it the more readily, as I find that Lord Redes- dale (1 Sch. Sf Lef. 241.) established it as a general rule of his Court, that where some exceptions were allowed, and others were disallowed, on a reference to a master, the plain- tiff was to have the costs of the exceptions disallowed, and the balance to be struck and paid by the party from whom it should appear to be due. (o) A decretal order was, thereupon, entered, that the 2d, 6th, 7th, 10th, and 13th exceptions, together with so much of the 8th exception as related to the sum of 250 dollars, therein mentioned, and so much of the 12th exception as related to the sum of 75 dollars, therein mentioned, be allowed as well taken ; and that the residue of the said exceptions, and parts of exceptions, be disallowed. That the defendant, John D. Jacjues, be allowed his costs for the said 2d, 6th, 7th, 10th, and 13th exceptions, and that the plaintiffs be allowed their costs for the residue of the said exceptions, except the 8th and 12th ; *and that for these two last exceptions, neither party [ * 120 ] be allowed costs as against the other ; and that the costs to be taxed for the defendants be discounted from the costs to be taxed in favor of the plaintiffs ; and that the report be re- committed to the master to be amended, in conformity to this decretal order. fa) In the case of Dawson v. Busk, (2 Maddock's Ch. Rep. 184.) there were ten exceptions taken to the answer, and the master reported the answer sufficient. On exceptions being taken to his report, some of them were al- lowed, and some disallowed ; and the vice-chancellor, after reviewing the authorities, ordered the deposit, which had been made with the register, on taking the exceptions to the report, to be divided ; and this appeared to have keen the practice in several cases which were cited. VOL. III. 13 97 120 CASES IN CHANCERY. 1817. HARROW November n [*121 ] BARROW and others, Assignees of PRIOR, against J. RHINELANDER. [Reversed, IV Johns. 548.] A decretal order of reference to a master to state the account between the parties, was made in September, 1815, and the parties appeared, from time to time, before the master until the 16th of October, 1817, when they were nearly ready fur a final hearing before him ; and then the defendant presented an appeal from the decretal order, dated the 16th of October, 1817. On petition and motion of the plain- tiff, the Court ordered the master to proceed in taking the account, and to complete and file his report, notwithstanding the appeal. THE petition of the plaintiffs stated, that this suit had long been pending, and that on the 29th of September, 1815, the Court decreed, (vol. 1. p. 550.) that the accounts between the plaintiff and the bankrupt, on the one part, and the defendant, on the other, should be opened from the 29th of November, 1790, and that it should be referred to a master to state the said accounts, according to certain principles and directions in the decree mentioned. That in pursuance of such decretal order, James A. Hamilton, one of the masters of the Court, proceeded in taking and stating the accounts. That the ac- counts were extensive, and somewhat complicated, involving many large sums of money, and some questions of consider- able difficulty, but that owing to concessions and admissions, almost all the matters of any considerable moment, in number or amount, were disposed of and settled by the solicitors on each side. *That such admissions were reduced to writing, and signed by the respective solicitors, and filed with the master the 1st of May last. That a small number of notes, bonds, &c.. brought in question, were left to the decision of the master, and all the matters remaining in dispute were re- duced to certain specific points. That the plaintiffs were thereupon prepared for a final hearing before the master, on the matters not disposed of as aforesaid. That various meet- ings of the parties were had, when, on the 1st of September last, at a meeting of the parties before the master, and when the plaintiffs were ready to go to a final hearing, the defend- ant prayed for further time to take testimony, and the de fendant's counsel then appointed and agreed on the 23d of September last, as the time when all the testimony should be taken and closed, and that they then would be ready to go to a final hearing before the master, and the respective so- licitors subscribed a memorandum to that effect, on the minutes kept by the master. That on the 23d of September, the counsel for the plaintiffs appeared, and the final hearing was 98 CASES IN CHANCERY. . 121 adjourned to the 1st of October, when the parties met, and 1817. on the representations of the defendant's solicitor and coun- '^^ ^~^~s sel, it was finally agreed that further time be allowed the de- BARROW fendant and his counsel, until the 16th of October, that time being named at the instance of the solicitor and counsel for the defendant, as sufficiently remote for a full preparation by them. That on the 16th of October, the parties again met before the master, and application was again made, on the part of the defendant, for an indefinite postponement of the final hearing ; but the master denied the motion, and ordered on the argument, when the solicitor for the defendant ten- dered an appeal from the decretal order of the 29th of Sep- tember, 1815, to the Court for the Trial of Impeachments and Correction of Errors, which appeal was dated the said 16th of October. That from a full and perfect view of the accounts, so far as the same have been agreed to, *or admit- [ * 122 ted, there will be due the plaintiffs, if stated up to the present , time, 20,000 dollars and upwards, exclusive of all sums in controversy, and of the notes, bonds and securities still unde- termined. Prayer, that the plaintiffs may be permitted to proceed in the taking and stating their said account before the master, and that the defendant may be ordered, on the completion thereof, to bring into Court, within a reasonable time, the sum which may be found due, or that he may be compelled, within a reasonable time, to give security for what may ultimately be adjudged due to him. This petition was sworn to by one of the plaintiffs. There was a special report of the master annexed to the petition, stating the material facts set forth in the petition, in respect to the progress of the cause before him H. Bleecker, for the petition. J. V, Henry, contra. He read an affidavit of the defend- ant, stating that his answer was filed on the 29th of June, 1805. That on the 6th of June, 1814, an order for publica- tion was entered. That by an agreement before the hear- ing, the plaintiffs abandoned all claim for the defendant's not collecting the moneys due on the securities for money, except as to those in the agreement mentioned, and that the defend- ant was not to be charged with moneys on securities, the payer of which was insolvent on the 4th of July, 1801. That in the course of the proceedings before the master, the plaintiffs, by agreement, abandoned the said claim. That the securities, which the plaintiffs still insist the defendant ought to be charged with, amount to 11,449 dollars, 10 cents, besides in- terest, though the defendant has never received any money whatever thereon. That be has several material witnesses, 99 123* * CASES IN CHANCERY. 1817. whose testimony he has not been able to procure, for wan v^*-^ *_- of time, though he has been busily employed for the purpose ; BARROW that *his witnesses reside in different states. That he is will- ln & to P rocee d m the reference, notwithstanding the appeal, provided he be permitted to complete the examination of his witnesses. THE CHANCELLOR. This case presents as strong an in- stance of the abuse of the right of appeal as can well be imagined. It would seem, from the offer contained in the latter part of the defendant's affidavit, that the appeal was interposed merely for delay, and because the defendant was not indulged in a further and unlimited time to procure his testimony. After a long and tedious discussion before the master, and when the cause was ready for a final hearing before him, the defendant interposed his appeal. The de- fendant was led to appeal from the decretal order for a reference, because the master refused a further adjournment. If the master had acted improperly, the defendant would have had relief, on application to this Court, on the coming in of the report. If the defendant was dissatisfied with the original decretal order, he ought to have appealed at the time, and not lain by, and suffered all this intermediate delay, trouble, and expense. If the appeal was to operate as a suspension of further proceedings before the master, and the master should happen to die, or be out of office, before the cause could be heard and decided in the Court of Errors, all that had been done before him would be lost. A cause might thus be protracted through whole generations, and until the patience and the resources of suitors had become exhausted. We may apply to this case the observations of Montesquieu. On en voit la correction ; metis on voit encore les abus de la correction meme. I cannot order that the defendant give security for the amount that may be due, because, until the master's report has been received and confirmed, I have nothing by which * 124 ] to guide my judgment. It will be sufficient, at present, *to grant so much of the motion as to allow the master to pro- ceed and finish his report, notwithstanding the appeal. After the report is made, brought into Court, and confirmed, it will be in season for the plaintiffs to make further application for leave to proceed, if they can then show a necessity for it. Order accordingly, that the master proceed in the refer ence to the completion and filing of his report, (a) (a) Vide Messonnier v. Kauman, ante, p. 66. 100 CASES IN CHANCERY. 124 1817. LlVINGSTOV LIVINGSTON against HUBBS and others. [Approved, 4 Bann. & A. (TJ. S.) 341. Followed, 18 Blatchf. (TJ. S.) 122. Referred to, 28 Miiin. 255. See 2 Bann. & A. (U. S.) 257.] A bill of review, on matter of fact, is not allowed to be filed, unless on oath of the discovery of new matter or evidence, which has come to light since the decree, or, at least, since publication, and which could not possibly be had, or used, at the time publication passed. Newly-discovered evidence, which goes to impeach the character of witnesses examined in the original suit, or of cumulative witnesses to a litigated fact, is not sufficient. The matter of fact, newly discovered, must be relevant, and materially affecting the ground of the decree. A bill of review will not be allowed, unless the decree has been per- formed by the party seeking the review ; but where he is in execu- tion for the non-payment of the money and costs awarded to be paid by him, and which he is unable to pay, it seems that leave to file a bill of review will not be denied, on the mere ground of non-per- formance of the decree. PETITION of the defendant Hubbs, for leave to file a bill of review. After stating the substance of the original bill and answer, and evidence on which the decree was made, (vide S. C. vol. 2. p. 512.) the defendant stated, that since the decree, he had discovered that several of the witnesses of the plaintiff, who had, in their testimony, contradicted the statement in his answer, had mistaken the land in question, and had testified respecting lands adjoining *thereto, or had confounded it with the adjoining lands, so [ * 125 that their evidence was irrelevant ; and that, by the fraud- ulent combination of the plaintiff, and his agent, Paul Sultz, several other of the witnesses who were examined had been shown a different tract of land from the one in controversy, and of greatly inferior value ; that W. Kerr, who deposed that he was a commissioner of taxes, and had not assessed the land in question on account of its inferior quality, was never a commissioner of taxes, but had been convicted of forgery ; and that from the certificate of the clerk of the commissioners, it appeared that the premises in question had been taxed as land fit for cultivation ; and that other of the witnesses examined were persons of bad fame, and unworthy of credit; all which was unknown to the defendant H., until since the decree. That since the decree, he had pro- cured the tract of land in question to be surveyed, and that several respectable and intelligent persons had visited it, and declared it to be as represented by him to the plaintiff. That the defendant is now in execution for 250 dollars, and the costs awarded by the decree That the ground of the de- cree was, that the land had been represented to the plaintiff 101 125 CASES IN CHANCER1. 1817. * be f good qualit} 7 and fit for cultivation, when, in fact, >^r-^~*^ it was not. LIVINGSTON Prayer for leave to bring in a bill of review, to obtain a HUBBS reversal or modification of the decree. Various documents, and several affidavits, were annexea to the petition. Affidavits on the part of the plaintiff were, also, read, in opposition to the motion. H. J5/eecfcer, /?wrr, and Bracket, for the petition. They cited 1 Ch. Cos. 42, 43. Mitf. PL 66. 71. 78, 79. 4 Fewy, 186. 211. 8 Vesey, 438. 465. Bohun's Ch. 382. 2 Freem. Rep. 172. 1 Fern. 117. Cooper's PL 89. 91. 1 Harris. Pr. 171. 1 Vesey, 435. 3 Burrow, 1771. 1 Bos. fy Pull. 427. 2 Caines's Rep. 224. [ * 126 ! * Sampson and Mackay, contra. They cited 1 Harris. Prac. 138, 139. 143. 187. Wiser v. Blackly, (2 Johns. Ch. Rep. 488.) THE CHANCELLOR. The question, whether the repre- sentations of the defendant Hubbs, as to the quality of the tract of land in Pennsylvania, and mentioned in the plead- ings, were true or false, was one of the matters of fact, in issue, in the cause. The defendant was charged, in the bill, with gross misrepresentations on that point, and the charge was denied in the answer, and put at issue. The defendant's attention was called to the very fact, and he was bound to use reasonable diligence in bringing forward his proof on that point. The necessity of a reasonably active diligence, in the first instance, is imposed upon parties, and a bill of review is not to be sustained merely to accumulate testimony. This is the clear and necessary doctrine of the Court. (Youngs v. Keighly, 16 Vesey, 398.) The rule of Lord Bacon, as declared in his Ordinances, No. 1, (and Lord Eardwicke says the rule has never been departed from,) is, that a bill of review, upon matter of fact., must be upon special leave of the Court, and upon oath of the discovery of " new matter, or evidence which hath come to light after the decree, and could not possibly be had or used at the time when the decree passed." If the party might have used the new proof when the decree was made, it is not a sufficient ground for a bill of review. There is no newly-discovered evidence, in this case, but what might have been had, with ordinary diligence, in the first instance. The defendant might have had the lands surveyed, and viewed, and located, and the question of the assessment and payment of taxes established, as well before publication passed in the cause, as since the decree. There never was a more lame and feeble attempt to support a bil 102 CASES IN CHANCERY. *127 of review, on the ground of newly-discovered evidence. 1817. Most of the testimony goes to the credit of the witnesses ^^-^^-^.^ ^examined on the part of the plaintiff; but the credit of LIVINGSTON witnesses is not to be impeached after the hearing and HUBBS decree. Such applications for an examination to the credit of a witness are always regarded with great jealousy, and they are to be made before the hearing. ( White v. Puss ell, 1 Vesey and Beame, 151.) There would be no end of suits, if the indulgence asked for, in this case, was to be permitted. The nature of the newly-discovered evidence must be dif- ferent from that of the mere accumulation of witnesses to a litigated fact. In Taylor v. Sharp, (3 P. Wms. 371.) the lord chancellor spoke of such new matter as a receipt, re- lease, &c., and observed, that unless the relief was confined to such new matter, it might be used for vexation and oppres- sion, ^and for the cause never to be at rest; and in a case already referred to, Lord Eidon observed, that a party was not, indeed, bound to know every thing which he could have discovered ; for instance, he might not be held bound to look into a box for instruments which no human prudence would have suggested. The language of these cases show strongly the nature and strictness of the rule as to newly-discovered proof. It seems not, indeed, to be requisite that the new matter should have come to the party's knowledge after the decree, according to the letter of Lord Bacon's rule. It is sufficient if it be discovered subsequent to publication. (Amh. 292. 3 Atk. 26.) 2. But it must be a matter of fact materially relevant and pressing upon the decree. This was the doctrine in Bennet v. Lee, (2 Atk. 529.) in Morris v. Le Neve, (3 Afk. 26.) and in Young v. Keighly. The facts set forth in this case, as newly discovered, do not appear to me to be material to the merits of the cause. The fraudulent combination between Baldwin and Hubbs, to impose upon the plaintiff, is still equally apparent. Hubbs was acting under the influence of his own interest, when he acted as ^arbitrator. That inter- [ * 123 ] est was founded on his previous agreement with Baldwin, and his umpirage was founded in corruption. The purchase of 1 35 acres, which formed part of the tract of land in ques- tion, was done in furtherance of the same fraudulent combi- nation ; and I think the weight of evidence is still decisive, that his representations of the quality of the land were false and fraudulent. The very certificate which he now produ- ces from George Palmer, shows the tract of land to be almost worthless, for it states the tract to be on the side and top of a mountain : that about one third part may be cultivated, and that the soil is thin. The other two thirds would seem to be 103 128 CASES IN CHANCERY. 1817. stones and worthless, except that some part of the timber might v^^-^^-^^x do for sawing. The new proof now exhibited would not altei LIVINGSTON the merits of the case, nor remove the conclusion already HOBBS drawn from the pleadings and original proofs ; that the pro- ceeding by which the exchange of the land in Brooklyn, for the Pennsylvania land, was effected, was a fraud of Hubb? and Baldwin, practised upon the plaintiff. I think the weight of evidence would still be, that the witnesses had not mis- taken one tract of land for another. Either of the grounds I have mentioned appears to me to be sufficient to resist the application. It was, also, one of Lord Bacon's rules, that no bill of review was to be allowed, except the decree had been first performed, as if it be for money, that the money be paid ; and this rule we find to be afterwards declared and acted upon. (2 Bro. P. C. 24. note. Wiser v. Blachli/,2 Johns. Ch. Rep. 491, and the cases there referred to.) But where the party is in execution under the decree, and unable to pay, (as is the case here,) I should rather conclude that the non-payment of the money is not an insuperable obstacle ; and so it seems to have been under- stood. (1 Fern. 117. 264.) I shall, therefore, dismiss this petition, with costs. They are awarded when the application has no colorable support. [ * 1 29 ] (3 Aik. 32.) By an ordinance of Lord Hardwicke, *in 1741, no bill of review, for newly-discovered evidence, was to be permitted without a deposit of 50 pounds to answer dam- ages and costs, if the Court should award any. Prayer of the petition denied, with costs. 104 CASES IN CHANCERY 129 1817. DEMAREST DEMAREST and Wife against WYNKOOP and others. WYXKOOP. [Reviewed. 1 Paige, 71.] Twenty years possession by a mortgagee, without any account or ac- knowledgment of a subsisting mortgage, is a bar to all equity of re- demption, unless the mortgagor can bring himself within the proviso in the statute of limitations, the construction of which is the same in equity as at law. The disability that entitles the party to the benefit of the proviso, must be existing at the time the right first accrues ; so that, if during the ten years allowed to an infant, a subsequent disability, as cov- erture, arises, the time continues to run notwithstanding such sec- ond disability. Suceessive or cumulative disabilities are not within the policy or settled and sound construction of the statute. (Lfeme covert may mortgage her separate property for her husband's debts ; so she may also execute a valid power to sell the property, in case of default, pursuant to the statute. A sale of mortgaged premises at public auction by a surviving executor of the mortgagee, according to the statute, is a complete bar to the equity of redemption. And where the sale was regular and fair, but the deed of the executor pro- duced, was dated nineteen years after the time of sale, it was presumed that a deed was duly given at the time, and lost, and that the one produced was executed for greater caution. But, as between the parties, where there is no intervening right, such a deed will take effect, by relation, from the time of the conclusion of the bargain and sale, especially in a Court of equity. (n a mortgage, by husband and wife, of the wife's separate estate, the wife may, if she choose, reserve the equity of redemption to the hus- band alone, who may sell and dispose of it. Where a plaintiff had color of claim, though barred, in the opinion of the Court, by lapse of time, his bill was dismissed without costs. BILL filed October llth, 1815, for the redemption of a October 6 7, mortgage. Philip Minthorn, in March, 1756, died seised of Q > a ' ld Decem ~ :i tract of land in the out-ward of the city of New- York, leaving a widow and nine children. By his will, he devised all his estate to his widow, for life, and after her decease, *to [ * ] 30 ] his children in fee. Hannah, one of the daughters, married fl'icrt Banta, and on the 29th of October, 1765, Johanna, the widow of the testator, conveyed to the children all her inter- est in the estate. By indenture of partition, executed the 30th of October, 1765, between the children and their hus- bands, reciting the will of their father and the release of their mother, and that they were seised as tenants in common, and had divided the land into lots, and that Wiert Banta, and Hannah, his wife, had drawn three lots, marked No. 2, the other eight parties, in consideration of five shillings, &c., bar- gained, sold, released and confirmed unto the said Wiert Banta and his wife the said three lots, to have and to hold the same, to the said Wiert Banta, and Hannah, his wife, ihralty. The like deed VOL. III. 14 " 105 130 CASES IN CHANCERY. 1817. was execu ted by each of the parties to the others, with cove- v^^-^^-^fc^x nants and warranty. DEMAREST Wiert Bcmta and his wife, by a deed of mortgage dated WVNKOOP the 29th of ^" flrc *> 1771 ' reciting the seisin of P. M., his death, and the will, release and partition, mortgaged the said three lots, No. 2, to Gabriel Ludlow, to secure the payment of three hundred pounds, with interest, in one year from the date thereof. The mortgage contained the usual power of sale, in case of default, and the overplus arising from the sale, after paying the debt, &c., was to be pud to Wiert Banta, his heirs, executors, administrators, <~ assigns. No part of the principal or interest was ever paid by the mortgagors ; and G. L., the mortgagee, died the 20th of December, 1773, hav- ing made his will the 5th of February, 1771, and appointed four executors. After his decease, Daniel Ludlow, one of his children, as devisee, heir, or legal representative, became legally possessed of the mortgage. Wiert Banta, and Hannah, his wife, had three children, Hannah, Frances, and Catharine. Hannah married one Al- nngton, and lived on one of the lots so mortgaged, during the revolutionary war, and afterwards left this country, with [ * 131 ] her husband, and died without issue. Frances married * Nich- olas Nagel, now living in New- Jersey. Catharine died in 1782, leaving the plaintiff, Hannah, her only child and heir at law, then about one year old, and who, afterwards, at the age of 19 years, married the plaintiff John Demarest, and claimed a moiety of the premises, subject to the equity of redemption of the said mortgage. Hannah, the wife of W. B., died in 1786, and the defend- ants, in their answer, alleged, that being seised under the par- tition, as joint tenants by entireties, W. Banta, as survivor, be- came seised of the equity of redemption in fee. On the 7th of May, 1788, W. Banta, Nicholas Nagel, and Frances, his wife, who was described as the only child of the said Wiert Banta, for the consideration of 125 pounds, con- veyed the mortgaged premises to Daniel Ludlow, in fee. The deed contained full covenants of title, and against all encumbrances except the mortgage. Daniel Ludlow made an endorsement, under his hand and seal, on the deed, cove- nanting that no action should be brought against W. B., his heirs, &c., for the money secured by the said mortgage, it being only Tcept on foot to protect the title. The defendants, in their answer, charged that the 125 pounds was then the full value of the equity of redemption. On the 28th of January, 1791, Robert Cromeline and Sam- uel Verplarik, the two surviving executors of G. Ludlow, by virtue of the power contained in the mortgage, advertised the premises for sale, at public auction, on the 1st of August^ 106 CASES IN CHANCERY. 131 1791, pursuant to the statute. R. C. in the mean time died, 1817. and the premises were sold by S. V., the surviving executor, ^*r~^~**^ at auction, according to the notice, to Daniel Ludlow, as the DEMARE^-I highest bidder, for 320 pounds, who thereby became entitled \VYNKOOI- to a conveyance ; but whether a deed was then executed, and afterwards lost or mislaid, did not appear; but the defendants, in their answer, set forth a deed from & V.,the surviving ex- ecutor, &c., to *Daniel LuJlow, dated the 2d of April, 1810, [ * 132 | which they insisted was a perfect bar to the equity of redemp- tion, if any existed. Daniel Ludlow was in the actual possession oi the prem- ises, from the time he purchased the equity of redemption of Banta, until the 17th of May, 1790, when, by a deed, reciting that, by sundry mesne conveyances, he had become seised of the premises, in fee simple, he conveyed the same, in fee, to Petrus Stuyvesant, with full covenants as to title. Stuyvesant continued in quiet possession of the premises until the 15th of April, 1803, when, by three several deeds, he conveyed the premises, in three several parcels, to Jacob Boerum and A. Wynkoop, and the other defendants, in fee. J. B., on the 20th February, 1805, released his moiety to the defendant Wynkoop. The plaintiffs claimed the equity of redemption to a moiety of the premises mortgaged, the whole of which they averred to be worth sixty thousand dollars, exclusive of improvements That the defendants have been in possession of the rents and profits for several years, which were more than sufficient to extinguish the principal and interest of the mortgage, but re- fused to render an account, &c. The bill prayed for an ac- count, and for general relief, &c. The defendants, in their answer, denied all knowledge or notice of any right, title, or claim, of the plaintiffs to the property, and stated that they were informed, and verily be- lieved, that the equity of redemption has been released to D. L., who had become entitled to the mortgage, and that the equity of redemption had been foreclosed. That, considering themselves absolute owners of the property, they have kept no accounts of the rents and profits, which, however, they allege would fall far short of the amount due on the mortgage, if the same were redeemable ; and they insisted on the length of possession, *connected with the other circumstances, as [ * 133 full bar to all right or equity of redemption by the plaintiffs. The cause came on to be heard in October last, and was argued by D. B. Ogden and S. Jones, jun., for the plaintiffs, and by Harison, T. A. Emmet, and Slosson, for the defendants. The counsel for the plaintiffs insisted on the following points : 107 133 CASES IN CHANCERY. 1817. ! That by the partition deed between the children of v^^-x/- 1 ^-' Philip Minthorne, deceased, Hannah, the wife of W. Banta, DEMAREST became seised in severally of the estate which she before WYNKOOP ne ^ m common with the other children. (8 Johns. Rep. 168. 1 Afk. 165.) 2. That the fee being in Hannah, the wife of W. Banta, her heirs have a right to redeem the mortgage, unless the equity of redemption has been foreclosed ; but no act has been done which can defeat their right to redeem. 3. That the length of time, in this case, cannot operate as a bar against the plaintiffs ; the plaintiff Hannah having been constantly under legal disabilities. (Smith v. Burtis, 9 Johns. Rep. 174. 181. 2 Fern. 377. Free, in Ch. 116.) For the defendants, the following points were insisted on : 1. That the deed of the 30th of October, 1765, between the parties of the first part, and Wiert Banta and his wife, operated as a bargain and sale, to W. B. and his wife, of the premises in question, by which they took an estate in fee, by entireties ; which estate, on the death of Hannah, survived to W. B. and his heirs. (4 Cruise, Dig. tit. 32. ch. 8. s. 19. Co. Litt. 200 b. 189 a. 190 b. 5 Com. Dig. 166. Co. Litt. 169 a. 18 Fin. 305. 2 Johns. Rep. 288. 4 Johns. Rep. 61. 3 Vesey, 690.) 2. That the pecuniary consideration expressed in the deed was sufficient to raise a use to the bargainee, which being once raised, the declaration of that use must govern ; and the hus- ' * 134 ] band and wife had an undoubted right to limit *the uses of her estate as they might agree ; and, besides, the estate, pre- vious to partition, belonged to them jointly, by purchase from tne widow of P. M., so far as respected her interest, the ad- vance for such purchase being, no doubt, made by the hus- band. That the considerations stated excluded the idea of a trust on the part of the husband for the wife ; but even if there was a trust, it was not charged in the bill, nor a spe- cific execution of it sought ; and, moreover, it could not be enforced against an innocent purchaser relying on the legal title. (3 Johns. Rep. 432. 2 Vent. 35. Harg. Co. Litt. 123. n. 8. Sounders on Uses, 313. 315. 4 Cruise, 194. tit. 32. ch. 12. s. 31. 2 Afk. 74. Bro. tit. Coverture, pi 477. 2 Sound. 180. 1 Mod. 290. 1 Sid. 466. 2 Co. 57. 2 Comyn's Dig. Baron and Feme, (B. 2.) 2 Cruise, 508. tit. 18. ch. 1. s. 35. 5 Term Rep. 652.) 3. That the mortgage by W. B. and his wife to Daniel Lud- low reserved to the husband the entire equity of redemption. As, after her death, the husband had full power to redeem, and was entitled to the surplus money, his release to D. L. gave a perfect title, and extinguished the equity of redemption. 10S CASES IN CHANCERY. 1,34 4. Admitting that the equity of redemption had not been conveyed to D. L., or barred by any of the conveyances men- tioned, the sale by the executors of G. L., the mortgagee, under the power, was a complete bar and foreclosure, accord- ing to the statute. After a lapse of 23 years, coupled with the uninterrupted possession, the Court will intend, that a deed was executed at the time, and presume a notice to have been regularly given, pursuant to the act. (Bergen v. Bennet, 1 Caines's Cases in Error, 1.) 5. The plaintiffs are barred by the statute of limitations. Mrs. Demarest came of age as early as 1802, when, at least, the statute began to run against her husband, who was bound to pursue his remedy within ten years after her disability as an infant ceased ; and that this was equally *a bar to the wife, who is only protected during the continuance of her first disability. 6. That the length of time connected with the adverse possession, and the circumstance of the defendants being bona Jide purchasers, for a valuable consideration, without notice, is a complete bar to the relief sought by the bill. (2 Fesey, jun. 454. 2 Freeman, 24. 2 Vern. 158. Finch, 102. 1 Johns. Ch. Rep. 219. 300. 1 Ch. Rep. 286. 2 Vent. 340. 2 Fern. 418. 3 AtJc. 235. 3 P. Wms. 287. note. 1 Johns. Cas. 213. 6 East, 80.) 7. That the defendants are not liable to account ; and as the bill does not seek to redeem, but merely claims to have the premises discharged from the mortgage, on the ground that the debt is extinguished b } the perception of the rents and profits, there is no ground on which the Court can give relief. (7 Vesey, 541. 4 Bro. C. C. 521.) The cause stood over for consideration until this day, when the following opinion was delivered by 1817. DEMARKST v. WXMtOOP. [*135 December 3. THE CHANCELLOR. This is a suit to redeem a mortgage, executed as early as 1771. Persons claiming an estate, in fee, under the mortgage, have been in possession of the mort- gaged premises since May, 1788, or 27 years before the filing of the bill. Several objections have been taken to the suit. 1 . The length of possession is set up, and relied upon, in the answer, as a bar to the claim. It is a well-settled rule, that 20 years' possession, by the Twenty-can mortgagee, without account or acknowledgment of any sub- p ssess101 ' v v a . . * . & . J mortgagee is a sisting mortgage, is a bar to a redemption, unless the mort- bar to the equi- gagor can bring himself within the proviso in .the statute of |7 n of redem P limitations. This proviso saves the rights of infants, feme coverts, &c., if they bring their action within ten years after iheir disability removed. The analogy between the right to 109 136* CASES IN CHANCERY. 1817. redeem in this Court, and the right of entry at law, is pre \^t*^~*^/ sumed complete and entire throughout, so that tne *mortga- DEMAREST gor who comes to redeem, after the 20 years, must show wv>. V v- himself within one of the exceptions that would save his entry \VliSAUUr. . 11 i-i i 11 iii-iit to re- or ^ectment at law ; and he must, likewise, show that he bem in equity, had filed his bill within 10 years after his disability ceased. i^ d "f faw, e a" T he cases wmcn I have looked into, and to which I now naiogous. refer, are uniform in support of this just and necessary rule ; The construe- an( ^ the construction of the statute is the same here as at law. tion of the stat- The same limitations are adopted, with the allowance of the ti^nshf the same same time for disabilities. (Jenner v. Tracy, note to 3 P. in equity as at Wms. 287. Belch v. Harvey, ib. and in app. No. 12 in Silgrfen'* Law of Vendors, 3d edit. Lord Kenyan, in Bonny v. Ridgard, cited in 17 Vesey, 99. Lord Camden,'m 3 Bro. 639. note. Anon. 3 Aik. 313. Aggar v. Picker ell, 3 Aik. 225. Lord Rosslyn, in Lytton v. Lytton, 4 Bro. 458. Hodh v. Haley, 1 J^esey fy B. 536. Reeks v. Postlethwaite, Cooper's Eq. Rep. 161. Bairon v. Martin, id. 189. Moor v. Cable, 1 Johns. Ch. Rep. 385.) In this case, Daniel Ludlow, who claimed the mortgage, took a deed, in fee, on the 7th of May, 1788, from Banta, one of the mortgagors, and from Nagel and his wife, who was one of the heirs of Banta's wife, the other mortgagor. From that time, we are to consider the representative of the mortgagee in possession, claiming to hold the land, not in trust, or mortgage, but adversely, and in his own right. At that time, the plaintiff, Hannah Demurest, was an infant of the age of seven years, and entitled to all the equity of re- demption which she now sets up. She was of age in 1802, and her bill was not filed until 1815 ; so that not only the 20 years had elapsed since the mortgagee's possession, but the 10 years since her disability of infancy ceased. She had then lost her equity of redemption by lapse of time. It is true she has not had 20 full years free of disability, to redeem, bui she has had 10 years free of disability, and more than 20 years in the whole have elapsed; and this is all that the [ * 137 ] statute allows. For this *purpose I may refer to the ob- servations which I made in the Supreme Court, in the case of Smith v. Burtis, (9 Johns. Rep. 181.) and which appear to me to be founded on a sound construction of the statute of limitations. The party has, in every event, 20 years to make his entry ; and if under disability during any part of that time, he has 1 years, and no more, after the disability ceases. It may so happen that the 20 years, and more, will elapse during the disability, and then 10 years will be after- wards allowed cumulatively ; or the disability may cease, so far within the period of the 20 years, as to allow of only 20 years in the whole, though part of that period be covered by 110 CASES IN CHANCERY. 137 the disability. This construction does not give to pc rsons 1Q17. laboring under disability the same number of years after they ^^-^~^s become of competent ability, as it allows to other persons DEMAKEST who were under no such disability. Such is the policy, and \V Y NJCOOP. the very language of the statute ; for it did not mean, as in the ease of the limitation of personal actions, that the party should, at all events, have the full period of time after the dis- ability had ceased, because the words of the act are explicit, that the extension of the time of making the entry beyond the twenty years, is in no case to exceed ten years after the dis- ability is removed. This is also the amount of the doctrine ontained in the case of Doe, ex dem. George, and Frances, I* is ivife, v. Jesson, (6 East, 80.) for there the whole period, from the time that the right descended or accrued, to the time of bringing the suit, was but 27 years, and above eight of the first years of that time had been consumed by an ac- knowledged disability ; yet the right of entry was held to be tolled by lapse of time. In the case of Belch v. Harvey, one of the cases above re- ferred to, the cause was ended by consent of parties, after argument ; but Lord Talbot, who had studied the case thoroughly, then observed, that if he had made a decree, his opinion would have been, that after the disability *of infancy [ * 133 ] was removed, the time fixed for prosecuting, in the proviso, which is ten years, should also have been observed. The proviso, as he said, contained an exception of several cases out of the purview of the statute, and if the parties at law would v\vail themselves of the proviso, they must take it under such restrictions as the legislature hath annexed to it, and that is, to sue within ten years after the impediment ceases. Lord Talbot also adds, " Why should not the same rule govern in equity ? I think there is great reason that it should. The persons who are the subject of the proviso are not dis- abled from suing ; they are only excused from the neces- sity of doing it during the continuance of a legal impediment : therefore, when that difficulty is removed, the time allowed for their further proceeding should be shortened. If they would excuse a neglect under the first part of the proviso, should they not do it upon the terms on which such excuse is given ? " But another difficulty may be started in this case : during the infancy of the plaintiff, a second disability ensued, by means of her marriage ; and it has been made a question, whether a succession of disabilities, thus closing on each other, can be permitted as an excuse within the statute. Upon one construction, she would have the whole period of her coverture, and ten years afterwards. Ill 138 CASES IN CHANCERY. 1817. I am clearly of opinion, that the party can only avail hirn- ^^-^^^^ self of the disabilities existing when the right of action first DEMAREST accrued. WYNKOOP. ^ several disabilities exist together at the time the right oi The disability action accrues, the statute does not begin to run until the which entitles a part y has survived them -all. (1 Plowd. 375.) But the party to the ben- -< T r -i \ entofiheprotn- case ot Uoe v. Jcssoti, already referred to, is an authority to so in the statute s how that cumulative disabilities cannot be allowed. There of limitation. ,...., . . . . . . , must exist when the disseisin happened when the right owner was an infant; the ng_htof ac- an( j ] ie died in infancy, leaving his infant sister his heir; and lion first Etc* crues. the Court of K. B. held, that she was bound, *notwithstand- [ * 139 ] ing her infancy, to bring her ejectment within ten years after the death of her brother, as more than 20 years had, in the whole, elapsed since the death of the person last seised. The policy of the statute of limitations is, to quiet posses- Successii-e or sions, and extinguish dormant claims. There is much wis- abiiitie^'are not ^ om m tne g enera l provision, and though Courts of equity within the poll- are not within the letter of those statutes, they have generally constructioTof fIl we d tnG ru l e > an d held equitable rights concluded by the the statuie. same bar, and subject to the same exceptions. If there are instances to the contrary, they are special cases, as those of direct trusts, or as that of Bond v. Hopkins, (1 Sch. &/ Lef. 413.) where lapse of time was attempted to be set up manifestly against conscience, or where there is fraud in the transaction. (1 Johns. Ch. Rep. 594.) If disability could be added to disability, claims might be protracted to an indefinite extent of time, and to the great injury and oppression of the country. According to an expression of Lord Eldon, " a right might travel through minorities for two centuries." It would be impolitic, as well as contrary to established rule, to depart from the plain meaning and literal expression of the proviso in the statute of limitations. We cannot well mis- apprehend the meaning of the legislature. The party bring- ing himself within the proviso, must be, " at the time such r~>' i n whom the right attached when the fine was levied ; that DIMAREST public tranquillity was more to be favored than the nonage P. ^ an m f ant j an( l tnat ^ infancy, closing on infancy, was to be allowed in succession, " the matter might possibly be de- layed many hundred years ; " that the statute intended to limit a certain time for the first right, and which was not to be exceeded by exposition or equity, though particular persons might suffer by it ; " that the public repose was more to be regarded than the private convenience of any particular per- son, whether he be an infant, or of unsound mind, or in other degree ;" that if a disability terminates, and a party, within one month thereafter, becomes disabled by a new disability, as imprisonment, unsound mind, &c., and so continues all the five years, or, if at the end of the first month of the five years, he dies, leaving an infant heir, the statute continues to run, notwithstanding the subsequent disability. The great principle of this case, that the disability within * 142 ] *the proviso must exist when the right of entry accrues, and that a subsequent disability is of no account, was recognized and confirmed in Doe v. Jones. (4 Term Rep. 300.) Lord Kenyan said, that one uniform construction of all the statutes of limitation had prevailed down to that moment, and that " it would be mischievous to refine, and to make nice distinc- tions between the cases of voluntary and involuntary disabil- ities, (as one of the counsel, without any sufficient warrant, had attempted,) but in both cases, when the disability is once removed, the time begins to run." It runs, said another of the judges, notwithstanding any subsequent disability, eithei voluntary or involuntary. The case of Doe v. Shane, M. 28. G. 3. (cited in the note to 4 Term Rep. 306.) is, also, a very strong case on this point. The plaintiff, against whom a fine was set up in bar, was of sound mind when the fine was levied, but he became insane about two years afterwards ; and the question was, whether the time continued to run against him while he was in that state. Erskine, for the plaintiff, found the current of authorities so strong against him, thav he would not pretend to argue the question, and the K. B. said the point was too plain to be disputed, and the rule for a nonsuit was made absolute. The doctrine of any inherent equity creating an exception as to any disability, where the statute of limitations creates none, has been long, and, I believe, uniformly exploded. General words in the statute must receive a general construc- tion ; and if there be no express exception, the Court can create none. It was agreed, without contradiction, in Stowelv. Zouch, (Plowd'. 369. b. 371. b.) that the general provision in the statute of fines would have barred infants, 114 CASES IN CHANCERY 142 feme, coverts, and the other persons named in the proviso, 1817. equally with persons under no disability, if they had not been s^^v^^ named in the exception or saving clause. So, in Dupleix v. DEMARES-> De Roven, (2 Vern. 540.) the lord keeper thought it very \ VYN V KOOP reasonable, that the statute of limitations should *not run r * 143 ' when the debtor was beyond sea ; but there was no saving in the case ; he could not resist the plea of the statute. The same doctrine is declared, in explicit and impressive terms, by Sir Wm. Grant, in Beckford v. Wade, (17 Vesey, 87.) and who refers to the opinion of Sir Eardly Wilmot, in Lord Bucking hamshire v. D rury, (Wilmot'' s Opinions, 177. s. 194.) and to the decisions in the common law Courts, (Hall v. Wybourn, 2 Salk. 420. Aubry v. Fortescue, 10 Mod. 206.) that though the Courts of justice be shut by civil war, so that no original could be sued out, yet the statute of limitations continued to run. The opinion of Lord Redesdale, in Hovenden v. Anncsley, (2 Sch. fy Lef. 630. 640.) and of Lord Manners, in Med- licott v. O'Donnett, (1 Ball and Beatty, 156.) are remarkably elaborate in tracing the authorities, and in enforcing the duty of a Court of equity to render entire obedience to all the provisions of the statutes of limitations. Before I leave this point, I ought to notice the case of Lamar v. Jones, (3 Harris and M 1 Henry's Rep. 328.) . in which the late chancellor Hanson, of Mart/land, adopted the English rule, and held that the equity of redemption was barred after 20 years' possession by the mortgagee, without interest paid, or an account, and when the lapse of time was relied on in the answer, and ten years had expired after the disability had ceased. This would have been a case perfectly in point, but it was reversed on appeal, on the ground that the Court of Chancery in England had not adopted that part of the statute of limitations which allows only ten years to infants, after they come of age, to bring their actions, and the Court of Appeals considered what Lord Talbot had said in Belch v. Harvey as only a dictum. But I apprehend, that the opinion of Lord Talbot, formed as it was, after argument, and ready for delivery, has all the weight due to his very enlightened judgment. Lord Camden, in Smith v. Clay, (3 Bro. 639. note.) cites that very case and opinion. .. . ' -i i , me, is a valid convey upon condition, she may prescribe the terms ; and it [ * 145 ] is fit and convenient that the mortgagor *should be able to bar to the equity con f er the ppwer. It is one that is recognized and regulated of redemption. , ,. 11111 i'i by statute, and is supposed, and has always been deemed, to be incident to the power to mortgage. It was held, in Wotton v. flefe, (2 Saund. 177.) that if baron and feme grant land belonging to the wife, by fine, with covenant of warranty, and the grantee be evicted by paramount title, covenant lies, after the husband's death, againet the wife, upon the warranty. This shows that the wife may deal with her land, by fine, as if she was a. feme sole ; and it is a much stronger case to hold her bound by the covenant of warranty than by the power to sell. A mortgage The power, in this case, was duly executed by the foreclosure 6 ^ executors, without the heirs of the mortgagee. The power chattel, and' per- in question was given to the mortgagee, his heirs, executors, & c -> an( i a mortgage interest, before foreclosure, is consid- ered in this Court as a chattel interest, and personal assets, and belongs to the executor. Though the technical fee may descend to the heir, he takes it in trust for the persona! 116 CASES IN CHANCERY. 145 representatives (Thornbrough v. Baker, I Ch. Cos. .83. 1817. Tabor v. Grover, 2 Fern. 367. .Fwfc v. Fisk, Free, in ^*r~-^~*>. Chan. 11. See also 2 Fern. 193. 1 -4*fc. 605.) DEMARE&T The sale was in 1791, and one of the children and heirs \WNKOOP. of the mortgagee had, previously, in 1788, taken a release of the equity of redemption from Banta, and Nagel and wife. If the equity of redemption resided in either of them, at that time, there is no pretence for the present suit ; if it did not, but was in the plaintiffs, then this purchase was no extinguishment of the mortgage debt. The purchase by Daniel Ludlow was of the equity of redemption. The testimony is sufficient, that six months' notice of the sale was given in one of the public papers ; and if the proof was lame on this fact, yet the doctrine in Bergen v. Benne.t (1 Caines's Cases in Error, 1.) would cure it. *It was there [ * 146 J held, that, after a lapse of sixteen years, a mortgagee is not to be heard to question the regularity of the notice of sale ; and that every apparent defect was to be supplied by intendment. The sale is proved by the auctioneer, but no deed from A deed exe- the executor is produced, except one, executed for greater ^^^Jtee'n caution by the executor, nineteen years after the sale, and years after a which presumes a deed to have been executed at the time, ttrfue'o '* and lost. er in a mort- As between the parties themselves, and where there is no f^if u' n s her intervening right repugnant to the deed, I do not perceive being no inter- the objection to the retrospective operation and effect of the ^AnSihvConn deed produced. A deed will, in many cases, have relation will, after such back to the time of the conclusion of the bargain and sale. p re sume thai "a (Jackson v. Bull^ I Johns. Cas. 81.) This will be more deed was given especially admitted in this Court, which often considers what sate, 16 when ii ought to be done as done, and will compel the specific u s^ to havc c j j been done, and execution of deeds. had beeil ^ The defendants are bona fide purchasers, for a valuable consideration, under the title of Daniel Ludlow, the pur- chaser at such sale. They appear not to be chargeable with notice ol any outstanding equity in the plaintiffs; and I am of opinion that, independent of the bar arising from the lapse of time, the plaintiffs are concluded by the execution of the power contained in the mortgage. There is no pretence or allegation of fraud in this case, and though the plaintiff was an infant when the sale was made, she was, notwithstanding, barred of her equity ; and if she was not, yet ten years had elapsed after her disability removed. The statute has no saving clause for persons laboring under n ^f re ma S J' 1 ! 1 1 717 disability, but it is peremptory that no sale under such power no exception, shall be defeated to the prejudice of any bona fide purchaser, mak e C no " in favor of any person claiming the equity of redemption, favor of i 117 none 147* CASES IN CHANCERY. 1817. Where the statute makes no exception, the Court, as I have v^^-v^-^^x already shown, can make *none on the ground of any in- DEMAREST herent rquity applicable to infants. WYIHCOOP Thoigh Ludiow, the purchaser at the sale, might be Though a pur- chargeable with notice of facts (if any then existed) fatal chaser at a to his title, yet a bona fide purchaser under him is noi char'^eabLVith affected by his notice. This is the settled rule. (Jackson notice, yet a \, Given, 8 Johns. Rep. 141.) chaser Bunder 3. There was a third objection, to which I think weight him is not af- might be attached. The husband was to redeem the uotice. y ' S mortgage by paying the bond, and in case of sale, the surplus was to be rendered to him. If it be the true con- struction of the mortgage deed, that the equity of redemption was intended by the wife to be reserved to the husband alone, it seems that he may take it, and, of course, dispose m a morteaffe f ^> as ne did m this case ; and the reservation will be by husbancf and good, if fairly procured. (Penne v. Peacock, Cos. temp. wife's separate Tallot, 42. Brcnd v. Brend, 1 Fern. 213.) But as I am estate, the cqui- not quite satisfied in such a construction, and of the evidence tfoi^ma^be^e- ^ suc ^ an intention, I have chosen to place this case entirely served to the on the other points, and I shall consequently dismiss the bill, frdtta benny There were other objections raised to the suit, on which dispose of it. I give no opinion. There has been some doubt in my mind, how I ought to uispose of the costs ; but considering the special circum- stances of the case, and that the plaintiffs were in some degree recommended to apply to this Court, in the opinion which was given against them on the ejectment at law, (8 Johns. Rep. 168.) I have concluded, that the bill ought to be dismissed, without costs. It is not usual to give costs, where the unfortunate claimant has color of claim, and is Beainst*a C p"ab. barred by lapse of time. Costs were accordingly refused to tiff having color \^ Q defendants, in Hovenden v. Annesley, and in Lamar v. barrecn>y'iapi Jones, to which I have already referred. Independent of rf time, the lapse of time, here we e colorable grounds for discussion Bill dismissed, without costs. CASES IN CHANCERY. *148 1317. LlVlNGSTC* *P. H. LIVINGSTON, sole acting Executor of P. P. L IV:NGSTW. LIVINGSTON, against LIVINGSTON and others. In marshalling assets, the estate descended to the heir is to be applied to he payment of debts before the estate devised, unless devised spe- cially to pay debts. After making his will, the testator conveyed his share of the real estate under the will of his deceased father, and which made part of the testator's real estate devised to his children, to trustees, to pay the debts of his father, and then in trust for the devisees of his father, and their representatives ; held, that this subsequent conveyance, being for the mere purpose of paying debts, was not a revocation of the will, beyond that particular purpose ; but the trust, as to the residue, is for the devisees, and not for the hen's of the testator. Where the personal estate is insufficient for the payment of the testa- tor's or intestate's debts, a Court of Probates, under the act for that purpose, may sell the real estate of which the testator, or intestate, died seised ; but not lands held in trust for the testator. The heir is not entitled to contribution from the devisee, towards the satisfaction of creditors. , Nor does equity help a pecuniary legatee to throw a debt against the personal estate upon a devisee of land. But different devisees, in respect to a charge on all the estate devised, must contribute, on a deficiency of assets, in proportion to the value of their respective interests; as to pay an annuity to the widow of the testator, or debts of the testator, remaining unsatisfied after the per- sonal estate, and all the real estate, undevised, had been exhausted. THE bill, filed in January, 1803, stated that Philip Philip October Hand Livingston, father of the plaintiff', being seised of real and December ^~ personal estate, in the island of Jamaica, and in this state, in April, 1784, made his will, by which, after giving his wife, in lieu of dower, 1000 pounds, his plate, furniture, &c., and an annuity, or rent charge of 600 pounds sterling, payable out of all his estate in Jamaica, and elsewhere, during her life, in half-yearly instalments, bequeathed to his seven children, and to such others as might afterwards be born, each 4000 pounds sterling, to be paid to them, re- spectively, when they came of age, &c. ; all which legacies were to be paid, and made payable out *of, and chargeable [* 149] on, his real and personal estate in Jamaica, exclusively, and not on any other estate. The will directed, that his children should be brought up and educated at the charge of his estate, until their legacies were due and payable ; and authorized his executors, appointed for the island of Jamaica, to sell all his real estate and slaves, out of the parish of St. Mary's ; to complete a loan of 8,500 pounds of H. A. fy Co. of London, by a mortgage on his estate, or to borrow elsewhere a sum not exceeding 10,000 pounds sterling, and 119 I4) CASES IN CHANCERY. 1817. to mortgage his estate in St. Mary's, for the repayment. Aft ^.^--v-'-^^' the residue of his estate in Jamaica, real and personal, he LIVINGSTON gave to the plaintiff in fee, with remainder over, in case he died under age, and without issue. And all his estate else- / i * i i / T -IT i i where, out of the island of Jamaica, he devised to his seven children, and such as should be afterwards born, as tenants in common, the plaintiff, being his eldest son, to have three shares, and the other children one share each. Five persons were nominated and appointed his executors, for the island of Jamaica, and to be guardians of his children, &c. there ; and four executors were nominated executors in New- York, for his estate out of Jamaica, and to be guardians of his children and their estates out of that island ; and each of his sons, on arriving at full age, was to become an executor generally. After making his will, the testator removed to Neiv-York, where he resided until his death, in 1787. At the time of making his will, he was considerably indebted, and after- wards, before his death, contracted other considerable debts. At the time of his death, the testator was entitled, by the will of his father, P. L. of Neiv- York, and by descent, to some parts of his father's estate. The testator, and three other devisees of his father's estate, in 1784, conveyed their shares and proportions of the estate of P. L., deceased, to some person, in fee, to the use of Isaac Roosevelt, Robert C. Liv- [ * 1 50 ] ingston, and the testator, in *trust, to pay the debts of the said P. L., deceased, and then "in trust for his devisees, and their representatives." On account of the infancy of Henry A. L., son of Abra- ham L., a deceased son, and devisee of -P. L., an act of the legislature (a) was passed, vesting the estate of P. L., deceased, in Alexander Hamilton, Brockholst L., John H. L.. and Thomas Jones, as trustees, in fee. The bill charged that, after the payment of the debts, the said trustees became seised, as to one undivided part of the residue of the real estate of P. L., " in trust for the testator. (P. P. L.} or his legal representatives ; " but whether the will of the testator was revoked as to such part of P. L.'s estate . the plaintiff submitted to the Court. The will was proved in Jamaica, and in New-York, and the plaintiff is the sole siting executor there and here. The bill further stated, that the plaintiff had applied all the real (a) The preamble to this act, passed the 25th of February, 1785, states the prayer of tne testator. P. P. L., for the act, to be. that the estate should be conveyed " in trust to convey the residue of the real estate (if any) to the several persons interested therein, according to the proportions they are en- titled to of the same." The act which operated on the real estate, declares that the residue is to go " to the persons, and in the manner and proportions, specified and expressed in the deed of trust," &c. CASES IN CHANCERY. 150 and personal estate, excepting the St. Mary's, towards pay- 1817. raent of the testator's debts, and had executed a mortgage \^^~^~++^ on the St. Mary's estate, for 10,000 pounds sterling, borrowed. LIVINGSTON That the funds proving insufficient, he applied, in the year LIVINGS-FOX 1794, under the statute of this state, to the Court of Pro- bales, and obtained an order to sell the testator's real estate in A 7 . Y. for the payment of the debts. That under this order, he had sold all the real estate of the testator in this state, and which had been purchased since the making of the will, and that the proceeds were still insufficient to pay the debts. That the debts of P. L. having been discharged, and the trust, above mentioned, survived to John H. L. and 13. L., defendants, they were now seised of the real estate of P. L., in trust, *as to one undivided part, for the legal [* 151 ] representatives of the testator (P. P. L.} That the plain- tiff has paid to his brothers and sisters their several legacies of 4000 pounds sterling each, and has paid the legacy of 1000 pounds to the widow, and the annuity of 600 pounds, for 14 years, during her life, she being now deceased. That, wishing to discharge all the debts of the testator, the plaintiff had applied to the said trustees, to convey to him the pro- portion of the estate of P. L., deceased, held by them in trust for the testator, or his legal representatives, which they refused to do, alleging, that the estate of P. L. ought not to be applied to pay the debts of the testator, or the annuity to his widow, but that the same ought to be paid out of the testator's estate in the parish of St. Mary's, devised to the plaintiff. The bill prayed for an account of all the debts owing by the testator, at his death, and of his real and personal estate, and of the application thereof by the plaintiff; and that the remaining assets of the testator may be applied in payment of his debts ; and particularly, that the proportion of the estate of P. L., deceased, might be declared liable to the debts of the testator, before the estate in Jamaica, devised to the plaintiff: and that the trustees might be decreed to con- vey the part so held by them in trust for the testator ; and that part of the annuity payable to the widow might be charged on the real estate in New-York ; and the plaintiff be indemnified, &c. The defendants, John H. L. and B. L., by their answer, filed August 29, 1803, admitted, that the testator, at the time he made his will, was entitled, under the will of his father, P. L., to five twenty-fourth parts of the real and per- sonal estate ; that the debts, except a claim of C. L.. had been discharged, and that they stood seised of five twenty- fourth parts of the residue of that estate, to the use of the legal representatives of the testator, &c. VOL. III. 16 121 152* CASES IN CHANCERY. 1817. The other defendants answered, in 1806, admitting most *ol v^^x^-^^ the facts charged in the bill ; but denying that the plaintiff LIVINGSTON had paid the legacies to his brothers and sisters, and insisting LIVINGSTON. tnat ^ e estate of P. L. was not liable for the testator's debts, exclusively of the estate devised to the plaintiff; and they submitted whether the true estate was liable, at all, to the payment of the debts, or to contribute to the annuity to the widow. Replications were filed, but no witnesses were examined on either side. The cause was brought to a hearing on the pleadings, on the 14th of October, 1817. Harison and B. Robinson, for the plaintiff, and Wells, for the defendants. The cause stood over for consideration until this day, when the following opinion was delivered by his honor THE CHANCELLOR. The great object of the bill is to con vert the real estate held by two of the defendants, in trust, for the legal representatives of Philip P. Livingston, deceased, and of whom the plaintiff is executor, into assets, for the payment of the debts still outstanding against that testator's estate. The bill does not state the amount of the outstanding debts, nor who the creditors are. tt only avers that the assets already applied for the purpose, have proved " utterly insufficient for the payment and discharge of the testator's debts." Here appears to be scarcely sufficient ground upon which the Court ought to be called upon to act. The plaintiff, however, wishes to make the trust estate chargeable with the debts, (whatever they may be,) to the exemption of the real estate in the island of Jamaica, which was devised exclusively to himself. It is contended, that the trust estate descended [* 153 ] undevised to the *heirs at law, and is, therefore, to be first chargeable ; and also, that it is included in the order of the Court of Probates, directing the testator's real estate to be sold for the payment of debts. I shall waive, for the present, any difficulty as to the want of explicitness and precision in the bill, and proceed to con- sider the question whether the plaintiff has any equity to en- title him to charge the trust estate in exclusion of his own. in inar shotting j. The general doctrine of the Court, in marshalling assets, < iaie Lord H. in Forester v. Leigh, Amb. 172.) 1 apprehend, however, that none of this doctrine on which the counsel for the plaintiff seemed to rely, has any application to the case. The trust estate in question did not descend undevised to the heirs at law, but it passed under the testator's will, as part of his residuary estate out of the island of Jamaica. The testator owned the property in question when he *made his will, and devised a certain residuary estate (of which [ * 154 J this formed a part) to his seven children, in unequal propor- tions. He afterwards, with other devisees of the testator's father, conveyed this property to certain persons, in trust to pay the debts of his father, from whom he derived the estate, and then in trust for his father's devisees and their repre- sentatives. In other words, he conveys his interest in his father's estate, in trust, to pay his father's debts, and when that purpose is effected, the remainder to be held in trust for himself. An act of the legislature was, afterwards, passed, to carry this trust more completely into execution, and the preamble to that bill states the prayer of the petition of the testator and others to have been, that the surplus, if any, should be conveyed by the trustees to the several persons in- terested therein, according to their respective proportions. The idea is uniformly kept up that the remainder of the property so conveyed in trust, was to return, and to be held and en- joyed as before. The act itself declares, that the residue was to go to the persons, and in the manner and proportions specified and expressed in the deed, in trust. The bill itself states, and the answers admit, that the trustees held the residuum of the estate belonging to the testator, in trus ,for the testator of his legal representatives. 123 154 CASES IN CHANCERY. 1817. This conveyance in trust was no revocation of the will, ^**~^~^/ beyond the mere purpose of paying the debts, because there LIVINGSTON was no alteration of the estate beyond that purpose. LIVINGSTON. ^ was tne c ^ ear an d manifest intention of the conveyance, and other acts in trust, to appropriate the property in pay- ment of debts, and to have the surplus restored to its former state and condition, without other or further alteration. Tii^ rules respecting these partial revocations, are deducible from a series of determinations of great judges in equity. The ques- tion of revocation has been much agitated, and laboriously dis- cussed ; but there is no one who has spoken with more clear- [ * 155 ] ness, or treated the *subject with more ability, than the master of the rolls, in Harmood v. Oglandcr. (6 Fesey, 199.) He has reviewed all the cases, and given us the collected result of his uncommon diligence and learning. A subsequent It is a settled principle in equity, that if a conveyance is rTe^ator 6 'm on ^ ^ or a P art ' a " purpose of introducing a charge, and trust, for ' the does not affect the interest of the testator, beyond that pur- debtT^and the P ose > ^ ^ s OI ^J a P ai "tial revocation of the will, and equity residue for the will hold the party a trustee, not for the heir, but for the testator, and d ev isees. A devise is not revoked in equity, by a mortgage such persons 3.3 * o o would have held in fee, or a conveyance in fee, for the payment of debts. The the same before mortgagee is a trustee for the devisee, and the devisor con- Ihe conveyance, . & & , ., , . , n / is not a revoca- tinues owner as betore, subject to the mortgage, bo, alter turn of his will a Devise if a conveyance be made in fee, in trust to sell and beyond such ' J special purpose, pay debts, and the surplus ot the personal estate to the tes- tator and his executors, and the surplus of the lands to him and his heirs, this is no revocation in equity ; and so it has been determined. If, after the debts are paid, the trustee conveys to the testator and his heirs, that is no revocation ; and if the estate should descend to the heir, he would be only a trustee for the devisee. This has been so held by Lord Harclwicke and Lord T/mrJoiv ; and the principle is settled. So, if the testator dies without taking back the legal estate, equity has only to decide to whom the beneficial interest be- longs, and it holds the party a trustee for the devisee, and not for the heir, and directs a conveyance. When the testator, after making his will, conveys his estate in trust for the payment of debts, the estate is still, in contemplation of equity, in him substantially ; and though the mode amounts to a revocation at law, (for a Court of law has nothing to do with the purpose,) yet, subject to the debts, he remains, in equity, master of the estate, and the will continues to operate i ipon his interest. If he calls for a conveyance of the legal estate, his heir is a trustee for the devisee ; and if he does f * 156 } not, but dies in the mean time, his trustee holds for *the de- visee, for his equitable interest still continued. (6 f^esey, 218 223.) 124 CASES IN CHANCERY. The doctrine thus laid down by Lord Ahanley may also be collected from a series of other decisions. (Hall v. Dench, 1 Fern. 329. Vernonv. Jones , 2 Fern. 241. Oglev. Cook, reported in 3 ,4i?A". 746. 2 5ro. 592. Jackson v. Parker, Amb. 687, and the general observations of Lord Hardwicke, in Parsons v. Freeman, 3 ^4^Ar. 748, and in Sparrow v. Hard- castle, 3 -4^r. 805. Lord Rosslyn, in Bridges v. Dutchess of Chandos, 2 Vesey,jun, 428, 429.) In the prior case of W^7- Zirtws v. Owens, (2 Vesey,jun. 599,600.) Lord Alvanley had explained, in the same way, the principle, which he shows was evidently established by Lord Hardwicke, in Parsons v. Freeman, " that wherever the estate is modified in a manner different from that in which it stood at the time of making the will, it is a revocation ; but wherever the testator remains, after a conveyance for a mere particular purpose, as the pay- ment of debts, seised of the same estate, and disposable by the same means, without any fresh modification, there is no revocation." 2. As I have considered that the estate in question was property devised, not descended, one main ground of the bill has failed, unless the estate can be considered as bound by the order of the Court of Probates, and that it is proper for this Court to lend its aid in carrying that order into effect. The order of the Court of Probates was made on the 28th of April, 1795, and that Court was authorized, on the appli- cation of executors or administrators, to examine the account of the personal estate and debts of the testator or intestate, and if it should find the personal estate insufficient, and that the same had been applied toward payment of the debts, the Court was directed to order " the real estate, whereof such testator or intestate died seised," to be sold, &c. (Act of the 4th April, 1786, ch. 27. s. 6.) *This was a special and newly-created power over the real estate of the debtor, nd I think the obvious and reasonable construction is, that it was to be confined to the legal estate. The seisin here .neant, is a legal seisin, and it could not have been the policy or intention of the statute to have given such a summary power over trusts, which cannot be reduced to possession, without the aid of a Court of equity. Such an interest, resting in equity only, and charged with complicated, arid, perhaps, uncertain and unascertained burdens, is not the fit subject of a public sale. The value of the interest may not be susceptible of a ready and accurate estimation. It would lead to sale on mere speculation, and to a sacrifice of the subject. The case of an-equity of redemption is by no means analogous. The case rests on grounds peculiar to a mortgage ; for the mortgagor, while in possession, and before foreclosure, (and 125 1817. I'he Court of Probates. where the personal es- tate is insuffi- cient for the payment of th debts of the tes- tator or intes- tate, cannot, at the instance of the executor or administrator, [ * 157 | order the sale of lands held in trust for the tt., tator ; his pow er under the aci is over the legai estate, or thai of which the tes tator or intes- tate died seised 157 CASES IN CHANCERY. 1817. ^ e decisions have gone no further,) is regarded at law, as **^e-*^-^-/ w ell as in equity, as the real owner of the land. In this very LIVINGSTON case, how could a purchaser know what to bid upon the LIVINGSTON equitable interest remaining in the testator, after the debis for which the trust had been created were discharged ? He had no means of knowing whether there would be any, and if any, what residuum of interest resulting to the testator, after the trust had fulfilled its object. It is perfectly clear, that a mere equitable interest, like the one in this case, was not within the purview of the statute, or the jurisdiction of the Court of Probates. The great object of the bill has, then, failed. This trust estate is no more liable, in equity, to the outstanding debts, than the estate in Jamaica. The devisees, in the one case, (who are all the children,) have as much equity as the plain- tiff, who is the devisee in the other. 3. There is another prayer in the bill, which is for indem nity ; and that part of the annuity payable to the testator's widow may be charged upon the trust estate. [* 158] , *The widow's annuity, though not her legacy, was made chargeable upon all the testator's estate in Jamaica, and else- where ; and it is admitted that the plaintiff has paid the an nuity as charged in the bill. The heir is The heir is not entitled to contribution from the devisee contrfbution tO towards satisfaction of creditors. This was so declared by from die devi- Lord Hardwicke, in Palmer v. Mason, (1 Atk. 505.) and in satisfaction St of the case, already cited, of Galton v. Hancock. Nor will the cred : tors. Court interfere and help a pecuniary legatee, to throw the ty heip e a eq pe- debt against the personal estate, upon the devisee of land, euniary leg-atee for their equities are equal. (5th resolution in Haslewood v. debt against the Pope.} But here is a case arising between different devisees, personal estate i n respect to a charge, to which their lands were equally "eeof land. 6U " bound by the will, and it is just, that the whole real estate should contribute, in due and ratable proportions. Thus, in But different Carter v. Barnadiston, (1 P. Wms. 505. 509. 521.) two 8pect eeS 'to n "a manors were devised, the one to A. and the other to B., and charge on all a ll the real estate was charged by the will, with payment of the estate devi- ., , , , , , ' /. . sed, must con- the debts. There was a mortgage debt upon one of the tribute, on a manors, and Lord Ch. Cowver held, that the devisee of the deficiency of .1 IT, j. -i A - i_ i i assets, in pro- other was bound to contribute, proportionably, to the pay- portion to the rnent of that mortgage, because the right of contribution was value of their , -77 mi i j i j r respective in- gwen by the will. The same rule was declared in Long v. lerests Short, (1 P. Wms. 403.) in the case of two specific devi sees of land. The lord chancellor said, it would equally disappoint the intention of the testator, to defeat either devise, by subjecting it to the testator's debts ; and there- fore he held, that on a deficiency of assets, both estates I2fi CASES IN CHANCERY. 158 must contribute, in proportion to the value of their respec- 1817. live premises. ^-*^^~^-s The will, in the present case, is silent as to the debts ; and LIVINGSTON it appears to be very equitable, that -the debts remaining after L IVIN C' STO N. the personal estate, and after the undevised real estate, is where debts exhausted, (and which is alleged to be the fact in this case,) remain unsatis- should be borne, in ratable proportions, by all *the devisees, c r , C gn "j according to the quantum and value of their respective in- persona i estate, terests. This case comes within the principle of those decis- and all the real riM i u iU j !_.. it. I estate not de- ions. Ihe law charges the debts upon the real estate. vise( j are ex . I shall, accordingly, declare, that the trust estate is not, in hausted, the de- equity, chargeable with the outstanding debts, any more than j^e U p '"Ihe the Jamaica estate, and that it is not bound by the order of deficiency of the Court of Probates mentioned in the bill; that the trust estate, however, ought to contribute ratably with the estate tum and value in the island of Jamaica, belonging to the plaintiffs, to the ive interests? 6 " discharge of their debts, and to the payment of the annuity to the testator's widow. There must, accordingly, be a reference to a master, to take and state an account of the debts owing by the testator at his death, and of his real and personal estate, and of the application thereof, and the pay- ments which have been made, and of the debts which still remain unpaid, their nature and amount, and how secured ; and that the master take and state an account of the amount of the annuity of 600 pounds a year, mentioned in the will, paid by the plaintiff, and the times when, and the interest thereon from each respective payment, and also the amount of the legacies due to the respective defendants, and of the interest thereon, from the time that the legatees respectively came of age ; and that the master certify the amount and proportion that each devisee, as well the plaintiff as the de- fendants, is to contribute towards the payment of the said annuity and of the said outstanding debts, having due regard to the respective. values of the estate in the island of Jamaica, belonging to the plaintiff, and of said trust estate, and to the proportion of interest which each of the dev- isees has in said trust estate ; that the defendants John II. and B. L. account before the master for the rents, issues, and profits of the trust estate, in the proportion that 5 bears to 24, and that the master make them all just allowances properly chargeable, in such proportion, together *with their [ * 1(50 q . reasonable expenses, (if any,) in the defence of this suit, exclusive of the taxable costs, and that the question of costs and the question relative to the release of the said trust estate by the said trustees, and all other questions, be reserved until the coming in of the report. Order accordingly. 127 160 CASES IN CHANCERY. 1817. R \ GGS RIGGS and others against J. B. MURRAY. MURRAY. This Court, notwithstanding an appeal filed in the cause, may, in its dis- cretion, award execution for the sum decreed to be paid by the de- fendant, unless he brings the amount, with the costs, into Court, within a certain time given for that purpose, to abide the event of the appeal, &c., or give security, to the satisfaction of a master, to pay the amount of the principal, interest and costs, on the affirmance of the decree, or such part thereof, as may be payable on the decree of tho Court above, on the appeal. Decembers. THE petition of the plaintiff stated the decree in this cause, (vide vol. 2. p. 565.) of the 30th of September last, by which the defendant was decreed to pay to the plaintiffs 81,836 dollars, 37 cents, with interest and costs. That on the 17th of October last, the defendant filed an appeal from that decree to the Court for the Correction of Errors, &c. That the costs have not been taxed ; and that the sum decreed, with interest, amounts to 89,000 dollars, exclusive of costs, and for which the plaintiffs have no security. That, the plaintiffs apprehend that the cause cannot be brought to a hearing at the next sessions' of the Court of Errors ; in which case, a delay for more than a year will take place, during which time, the plaintiffs " apprehend the occurrence of circumstances by which the whole, or the f*161] greater part of the sum decreed to the plaintiffs, will *be lost to them and the creditors for whom they are assignees in trust, even if the decree should be affirmed." The plaintiffs, therefore, prayed for an order that the plaintiffs' solicitor may proceed and have their costs taxed, and that the plain- tiffs may have execution for the sum decreed, &c., unless the defendant shall, within a reasonable time, to be given for that purpose, not exceeding 20 days, bring the principal, interest, and costs, into Court, to abide the event of the appeal, or give security, to be approved of by a master, to pay the amount of the decree, and costs, on affirmance, or sucn part thereof as shall be payable on affirmance, &c. The petition was sworn to by one of the plaintiffs. Henry, for the plaintiffs, now moved for an order pursuant to the prayer of the petition ; and in support of this motion, iAte,p. 66. he relied on the case of Messionier \. Kauman,^ and on the facts stated in the petition. Van Vechten and Pendleton, for the defendant, read the affidavit of the defendant, as to the merits of the decree ; and they opposed the motion on three grounds : I . That 128 CASES IN CHANCERY. 161 the appeal suspended all the powers of the Court in regard 1817. to the cause, so that it had no jurisdiction to proceed in it, ^t^^*+^ or to award execution, after the riling of an appeal. RIGGS 2. That the decree was founded in a mistake as to the MURRAT amount of the sum due. 3. That the special circumstances of the case showed that there was no equity in the application, or necessity for it, even if the matter rested in discretion. THE CHANCELLOR. The first point has been repeatedly decided in favor of the power of this Court; and for this purpose, I refer to the case of Eden v. Winter, derided in 1814, (1 Johns. Ch. Rep. 77.) to BradweU v. Weeks, *decided in the same year, (1 Johns. Ch. Rep. 325.) and to [ * 162 " the cases of Mesaionier v. Kauman,-\ and Barrow and others \ Ante, p 66 v. Rhinclander,$ decided in October and November last. $ Ante, p. 120. I cannot open the point again without destroying all con- fidence in the uniformity and stability of the principles and practice of the Court ; and I shall think it my indispensable duty to continue to exercise the authority I have so repeatedly declared, whenever the occasion shall appear to render it just and expedient, until I am admonished of my error, or directed otherwise by a more competent power. The opinion which I have formed, upon the most mature deliberation, is, that it rests in the discretion of the Court, to determine when, and to what extent, the mere fact of filing an appeal shall be a supersedeas to all further proceedings. In a variety of cases which may occur, it will be found essential to the security of private right, that this Court should possess authority to proceed, notwithstanding the appeal. Some of the reasons pressing upon the justice of the Court, are mentioned in the several cases to which I have referred, and they might easily be enlarged. This power exists to the fullest extent in the English Court of Chancery, and I have never been able to discover any thing in the constitution, or law of the land, that has abridged, in this respect, the powers of this Court. Its origin is as pure, its trusts as sacred, and its ends as beneficial, as those on the model of which it was formed. Why, then, in matters of private right, should it have a diminished jurisdiction ? The power in question is no im- pediment to the right of appeal. It was never so intended. It does not obstruct the exercise of that right, in the remotest degree. Its operation is only to prevent those abuses and frauds which might be committed under the mask of an appeal, to the infinite discredit of the administration of justice. The party can prosecute his appeal with equal facility, though it be not allowed to work a supersedeas, as to every ^particular in the given case. If he succeeds on the [* 163] VOL. III. 17 129 163 CASES IN CHANCERY. 1817. appeal, he .will, of course, annul what has been done in the v^~ x/->^x mean time, and be reinstated in all his rights. RIGGS The Court exercises its discretion so far only as to prevent MURRAY impending injury, or actual abuse, by the intermediate delay It permits no proceeding after an appeal, except in special cases founded on the reason and necessity of the thing. Thus, in the case of Green \. Winter, already referred to, (in which the learned counsel, who now contends that I have no such power, then strenuously contended that I had,) I refused to permit the master to proceed to lake an account under a decretal order appealed from, because I saw no necessity for taking such a step. On the other hand, in the ) Ante. p. no. case of Barrow v. Rhinelander,^ the parties had proceeded, for a long time, under the order of reference, and had brought the laborious investigation almost to a conclusion, when the defendant most vexatiously interposed an appeal. I did not interfere with his appeal, but I directed the refer- ence to be completed. That case very strikingly illustrates the utility and necessity of the discretion which is claimed. The appeal was there avowedly for delay, and it would be degrading to the character and justice of the country, if a party could, at any time, by his mere veto, (for the appeal is only filing a formal notice in the register's office,) suspend all the functions of this Court, in the given case. If the Court has no discretion, and no power, after the appeal is filed, a party might safely inform the Court, at once, that he appeals for delay, and that he intends to exhaust his adver- sary, or to depart with his property, before the appeal can be dismissed. The Courts of law have declared that they have a discretion on the subject, and although a writ of error cannot be brought until final judgment, which is a lien on the land, and although the defendant is held to bail at law, { * 164 ] yet if it appear by the party's confession, or *otherwise, that the writ of error is for delay, the judges have declared that they would not stay execution. The second point is equally untenable, for upon this ap- plication, the decree must be assumed to be correct. If there has been a mistake in the sum taken from the master's report, (which cannot be conceded.) the proper remedy was by application for a rehearing. The merits of the decree cannot now be opened or discussed. The third ground is the only one to be considered. There is no immediate danger of loss from delay, but it is apprehended that, in the course of a year or more, there may and will be an occurrence of circumstances by which the sum decreed, or the greater part of it, will be lost. If I am to be governed by those circumstances, they ought to have been fully stated ; but without them, I can readily believe that a 130 CASES IN CHANCERY. 164 large debt, left for a long time in adverse hands, without any 1817. real or personal security, may become endangered by the \^^~^~^.^ ordinary vicissitudes of business and the casualties of time. RIGGS 1 presume that there are not many cases of a decree for the payment of money, in which the bringing of the money into Court, or security for the payment of it, has not been made a condition of granting an application to stay proceedings pending an appeal. Decrees are often complex and multifarious in their provisions. In a great variety of them, no such payment or security could or would be required, and the proceedings would stay, as of course. This may be a reason why the statute has not made any general provision for security on filing appeals from final decrees, as it has on error from judgments at law. There is much difficulty in undertaking to inquire into the pecuniary circumstances of a party, in order to determine how far danger may exist. There is no certain rule for the discretion. In the case of a bill of review, it was provided by a rule, as early as Lord Bacon's time, that if the decree was for the payment of money, the money must be *paid, [* 165] before the bill of review could be admitted. This is a rule of the Court which has not been departed from, unless it be to substitute security for the money, instead of the money itself. (Savil v. Davey, 1 Ch. Cos. 42. Creiv v. Liddel, 2 Bro. P. C. 24. note.) The rule there is general, and applies to every decree for the payment of money. Perhaps the rule here ought to be pretty uniform, and not leave the discretion too much open and arbitrary in each case. This is a decree, simply and absolutely, for the payment of money : it comes completely within the principle declared in Mes- sonier v. Kauman, and the party swears to the apprehension of danger. But the necessity of immediate security is certainly not pressing, and the plaintiffs have conducted themselves with a remissness in the prosecution of the suit that showed their confidence in the pecuniary stability of the defendant. I shall, therefore, give to the defendant all the indulgence, as fo time, that his counsel has requested ; and I am the more readily induced to do this, as he may wish to have an oppor- tunity to take the opinion of the Court of Appeals on this very point ; and I shall, intentionally, afford him that facility, (>y extending the time to the 1st of March. It is, accordingly, ordered, that the solicitor of the plain- tiffs be at liberty, at any time, notwithstanding the appeal, to have the costs of the suit taxed against the defendant. And _t is further ordered, that the plaintiffs be at liberty to issue execution for the 81,836 dollars, 97 cents, with interest 131 165 CASES IN CHANCERY. 1817. thereon from the first day of July, 1816, and costs to be v^^-v^-^x taxed against the defendant, according to the course and RIGGS practice of the Court, unless the said defendant shall, on or MURRAY before the 1st day of March next, at his election, either bring the said principal, interest, and costs into Court, and deposit the same with the register, or assistant register, to abide the event of the said appeal, and the further order of this Court. [ * 166 ] or give real or personal ^security, to the amount of the said principal and interest, to be approved of by Thomas Bolton, one of the masters of this Court, to pay the said principal, interest, and costs, on the affirmance of the decree, or such part thereof as shall be payable according to the decree on the appeal; and in case execution shall issue as aforesaid, the officer be directed to bring into Court, and deposit with the register, or assistant register, the moneys that may be collected thereon ; and the register, or assistant register, is directed, in case the moneys be deposited, either by the party or by the officer, as aforesaid, to place the same at interest, by vesting it in government stock, for the benefit of whom it may eventually concern. Order accordingly. IV. B. There was an appeal from this order to the Court of Errors ; and after the chancellor had assigned his reasons to the Court of Errors, for the order, the point was argued in connection with the merits of the cause upon the other appeal ; but the Court of Errors gave no opinion on the appeal from this order. Pending the argument on the other appeal, the counsel for the appellant applied to the chancellor to enlarge the time for giving the security under this order, and he accordingly enlarged it to the 1st of May - and, in the mean time, the decree on the merits was reversed. The power of the Court, as declared in the above case, there- fore, remains unshaken ; and it is understood, that the judges of the Supreme Court, as far as they had considered the question, concurred in opinion with the chancellor on this point. 132 CASES IN CHANCERY. *JiH 1317 GRAY *GRAV, Executrix of GRAY, against 3. B. MURRAY. MURRAT [Approved, 11 Paige 14.] G. was engaged by M. as a supercargo of a ship, on a trading voyage from New- York to Madeira, the Cape of Good Hope, Madras, and Calcutta, and thence back to New- York : by the written instructions? to G., by which much was confided to his judgment and discretion, he was to receive, as a compensation for transacting the ! isiness, two and a half per cent, of the value of the property brought home for the account of M., arising from the proceeds of -the outward cargo, de- ducting duties, &c., and to have his reasonable expenses, while on the voyage, paid out of the cargo ; and to be allowed, also, Jive per cent., or one twentieth part of the net profits, on its termination. G. performed his duty from New-York to Madeira and to the Cape of Good Hope, but was taken sick at the latter place, and obliged to leave the ship, and died on his return homeward in another vessel ; having first appointed at the Cape, B. and B. (one of whom had been a clerk of M., and particularly recommended to G.'s attention,) his sub- stitutes, as supercargoes for the remainder of the voyage, agreeing to pay them, for their services, out of his commissions. The ship pro- ceeded to Madras, and from thence returned to New- York, where the homeward cargo was delivered to M., who cleared a considerable profit on the voyage, B. and B. having faithfully performed their duty as supercargoes in the place of G. It was held, that the legal repre- sentatives of G. were entitled to the full compensation stipulated, as for the completion of the voyage. Where G., being about to depart from New-York on a voyage to the East Indies, gave an order for insurance on his life, to the amount of 3,000 pounds sterling, which was accepted by the insurance company in London, and the agents of M., who undertook to complete the business, paid the premium for one year, and received the policy for that amount, to continue for 10 years, at the election of G. But M., afterwards, alleging that there was a mistake, without the knowledge or consent of G., procured this policy to be cancelled by the insurers, and another policy to be executed by them for 450 pounds, the differ- ence of premium being refunded by the insurers. It was held, that M., by thus procuring a valid and existing contract of insurance to be cancelled, substituted himself for the insurers, and was answerable to the legal representative of G., who died within a year, for the amount insured by the original policy, after deducting the premium. BILL, filed 12th of July, 1811, stating, that in June, Octobers, u& 1807, the defendant, being owner of the ship Egeria, and Decembe >' li having loaded her for a trading voyage from New- York to Madeira, from thence to the Cape of Good Hope, thence to Madras, thence to Calcutta, and from thence back to New-York, he hired the plaintiff's testator, to go as ^supercargo on the voyage, and by his letter of instructions, [* 163 ] dated the 27th of June, 1807, he instructed the testator, that the voyage was undertaken, in consequence of a contract made by the defendant, with the house of Phelps, Page, and Co., in Madeira, by which he was to ship a cargo, chiefly provisions, to them, and to receive there a cargo of 400 133 168 CASES IN CHANCERA. 1817. pipes of wine ; that, after the testator had received (in board **^~^~+^ the cargo of wine, he was to proceed with it to Calcutta, GRAY touching first at the Cape of Good Hope, and there dispose MCRR\Y ^ as muc h f the wine as he could, at the prices to be authorized by P. P. fy Co. That he was next to stop at Madras, and there, if he could, make further sales of the cargo. That his outward voyage was to terminate at Cat* cutta; and from thence to return to New-York, with the investment of the outward cargo. That the defendant, in his said instructions, stipulated to allow and pay the testator two and a half per eent. on the proceeds of the return cargo at New-York, and Jive per cent., or one equal twentieth part of the clear profits of the voyage, upon the arrival of the ship at New-York. That the testator sailed on the voyage described, as supercargo, in June, 1807, and proceeded to Madeira, where he placed the outward cargo in the hands of P. P. fy Co., and received on board a cargo of wines. That, in consequence of his great exertions and trouble, his health became impaired, and P. P. fy Co., in consequence of the testator's exertions, were induced to allow him, out of their own separate funds, two and a half per cent, on the sale of the wines shipped. That, proceeding on the voyage, the testator touched at the Cape of Good Hope, for the purpose of selling part of the cargo, if found advisable. That the master of the ship, a man addicted to liquor, and of bad passions, gave information that the ship was engaged in some improper trade ; in consequence of which she was seized and detained there nine weeks. That the health of the testator, from constant anxiety and fatigue, became [ * 169 ] *worse; and being, in consequence, unable to pursue the voyage, he exhibited his instructions to James C. Baehr and John Bryan, (the former of whom had been brought up in the counting-house of the defendant, and went out on the voyage, and the latter a gentleman of acknowledged ability and integrity, whom he met with there,) and appointed them to act in his place, as supercargoes, giving them a copy of his instructions, and engaging to pay them a specific sum for their services out of his own commissions upon the voyage. That the ship proceeded on her voyage to Madras, where the residue of the wines were sold. That, on the arrival of the ship at Madras, it was currently reported and believed, that a rupture had taken place between Great Britain and the United States ; and the supercargoes so substituted, after consulting their friends, deemed it imprudent to proceed to Calcutta, and that it would be most for the interest of all concerned to return direct to New- York, where they arrived, accordingly, in December, 1808. That the commissions upon the sales of wines, so allowed the testator by P. P 134 CASES IN CHANCERY. 169 $f >., amounted to 1,238 dollars, 34 cents, and were 1817. invested by B. and B. in India goods, on account of the ^*~^~+.^' testator. That the return cargo was sold at New-York, for GRAY above 90,000 dollars, and the profits of the voyage to the MURRAV defendant amounted to above 40,000 dollars. That the defendant was perfectly satisfied with the conduct of the testator while he acted as supercargo, and with that of his substitutes B. and B. That soon after the departure of the ship from the Cape of Good Hope, the testator embarked for Boston, and died on the passage, having made his will, and appointed the plaintiff, Robert Hamilton, of Baltimore, and George W. Murray, of New- York, his executors ; that the two latter having renounced the appointment, the plaintiff became the sole acting executrix. That the testator was at considerable charge and expense, while in the service of the defendant, as supercargo, before embarking, *and during the [ * 170 ] voyage, and paid large sums on his account, the particulars of which were stated in a schedule annexed. That the tes- tator never received any part of the compensation agreed to be paid to him by the defendant, except some trifling sums. That the testator, before he sailed from New- York, by an application in writing to the Pelican Life Insurance Company of London, procured an insurance on his fife, for the sum of 3,000 pounds sterling, for one year ; that the premium was paid by the testator, and the policy, duly executed by the company, and binding on them, was transmitted to the de- fendant, who, pretending that the policy was cancelled soon after it was made, and in the lifetime of the testator, withholds it from the plaintiff, and refuses to account for the money due thereon, in consequence of the death of the testator within the year. That if the policy has been cancelled, it has been by the defendant, without any authority, and without the knowledge or consent of the testator. That the defendant refuses to reimburse the moneys paid, laid out, and expended for him by the testator, and his expenses, and refuses to make the compensation for his services, or to pay the plaintiff the proceeds of the investment of the com- missions allowed him by P. P. fy Co., or to deliver up the policy of insurance, &,c. Prayer for an account, &c., and that the defendant de- liver up the policy, or if cancelled, to pay to the plaintiff the amount of the sum insured, with interest from the death of the testator ; and for general relief. In January, 1812, the defendant demurred to so much of the bill as sought compensation for services subsequent to tne testator's leaving the ship, and commissions on sales, if any, of the cargo, and as sought an account of the proceeds of the cargo, or commissions, or for the sale of wines under 13: 171* CASES IN CHANCERY. 1817. an y contract with P. P. fy Co., and payment for money v^ ^~+^s advanced by the testator before the voyage, &c. GRAY *The answer of the defendant to the residue of the bill de- MURRAY n ^ et ^ l ^ at tne on a ir o a ~ lor and his substitutes gratis. The testator was prevented, and was tore- by the act of God, from rendering all the services of the voyage ceive > as a C 9'"- i T ,1,1 1 pensation of his in his proper person. 1 am aware that the common law was services, two harsh on this point ; but I cannot believe there is any such and a half P cr . , . , l . , . , , . f . . > cent, on the pro- principle either in the marine law, or in the law of this Court, ceedsoftheout- The general rule of the common law is, that if a contract Mwdcaigo,and be undertaken, and partly, but not entirely, performed, the ore twentieth of the not profits of the voyage, un its termination. He fell sick, during- the outward voyage, and left the ship, having appointed anolae supercargo in his place for the residue of the voyage, and agreed to pay him out of his own commissions It was held, that the legal representatives of G., who died on his return home, were entitled to the full compensation stipulated, the ship having successfully performed the voyage, and which produced a large profit to M., and the substitute of G. having faithfully performed his duty, as supercargo. 141 1.79 OASES IN CHANCERY. 1817. P art y cannot recover his wages or hire, as for a partial per- *^r~^~*^s formance of it, pro rota. (Cowntess of Plymouth v. Throg* GRAY morton, 1 *SWfr. 65.) Thus, in Cutter v. Powell, (6 Term M ^- J?ep. 320.) the defendant gave a note, promising to pay the plaintiff's intestate, 30 guineas, provided he proceeded, con- tinued, and did his duty, as second mate in the ship, on a voyage from Kingston to Liverpool. The intestate entered on the voyage, did part of the service, and died on the passage. It was held by the K. B., that the plaintiff was not entitled to recover either upon a quantum meruit.. be- cause the express contract did away all implied ones, or upon the express contract, because it was not fulfilled. The performance was a condition precedent, and it was an entire contract. But in this very case, light breaks in from another quarter, to console us for the severity of the doctrine. If the party hired, wilfully or voluntarily abandons his contract, after a part performance, as in McMillan v. Vanderlip, and Jennings v. Camp, (12 Johns. Rep. 165. 13 Johns. Rep. 94.) there is equity in denying him a ratable compensation ; but we are speaking of cases in which the party was pre- vented from an entire performance, by the act of God ; and in the cases cited from the Term Reports, the Court admitted, that if the commercial usage had been to recover in such case ratably, that usage would have controlled their opinion. ' * 180 ] The old rule was, that if a servant agreed to receive *large wages, on condition of serving a whole year, and he died in the middle of the year, his representatives recovered nothing. But it was admitted, in that case, that they now recover pro- portionably, because the servant is understood to be hired, with reference to the general understanding on this subject, which is, that he shall be entitled to ratable wages, though he be disabled from serving the whole year. In Chandler v. Grieves, (2 H. Black. 606. note,} it was certified to the C. B., to be the admiralty usage, that if a seaman be disabled in the course of the voyage, he was entitled to wages for the whole voyage, though he had not performed the whole. But Mr. Abbott (Treatise on Ship- ping, p. 355, 356.) says, there is no general decision on the subject in our law books ; and that in certain foreign ordi- nances, to which he refers, it is not clear whether the payment of seamen's wages, on the death of a seaman during a voyage, is to be understood of a sum proportionable to the time of his service, or of the whole sum that would have been earned, if he had lived to the end of his voyage. In Sims v. Adm. of Jackson, (1 Peters' 's Adm. 157.) it was decided, in the Circuit Court of the United States, for Pennsylvania, that full wages for the entire voyage were due D the representative of a seaman, hired for the whole voyage, 42 CASES IN CHANCERY. 180 at 30 dollars per month, and who died when it was only half 1817. perfoimed. The decision was grounded on what was un~ x^^-v^--.*^ derstood to be the usage of the English admiralty, and the GKAY decision in the laws of O'leron. But, afterwards, in Natter- MURRAY strom v. Smith, (2 HaWs L. Jour. 359.) the District Court of Massachusetts, after an able and learned review of the marine law, dismissed a claim for wages of a seaman beyond the time of his death, when the engagement ivas by the month. These cases are not exactly analogous to the one before me ; but my object is to show the spirit and liberality of the marine law on the subject. *Cleirac, in his commentary on the Judgments of Oleron, [# 181 ] (Judgmens d* Oleron, art. 7.) mentions, that the Spaniards, in their West-India trade, had a custom, that if a seaman fell sick, he must provide a substitute or lose his wages ; but that by the ordinances of Charles 5th, if a seaman died on the outward voyage, his representatives were entitled to a moiety, and if on the homeward voyage, to his entire wages ; and he says, this was according to the Consolato del Mare. By the provisions of that celebrated Code, if a mariner died on his outward voyage, his heirs were entitled to a moiety of his wages, and if he had received all his wages before his death, his heirs were entitled to retain the whole. (Consulat de la Mer, par Boucher, ch. 129.) The ordinance of Leivis 14th (art. 13. and 14. des Loyers des Matelots, and Valin, Ibid.} makes the discrimination already alluded to, when a seaman dies, between an engagement by the month, and for the voyage, and gives only ratable wages in the first case, but entire wages in the latter, if he dies on the return voyage. There is another part of the 14th article* of the ordinance,' quite applicable, in principle, to the point before me. If the seaman engages for a proportion of freight or profit, his entire portion shall be recovered by his heirs, provided he died after the voyage was commenced. " And can it be just, that the seaman who dies shortly 'after the departure of the ship, and has rendered very little service, should take the same portion of the freight or profit that he would have been entitled to, if he had served out the voyage?" To this question, Pothicr answers, (du Louage des Matelots, No. 193.) that he would not have received but such a proportion of the freight or profits, as a compensation, however inadequate, for his services, though accidents had prolonged the voyage for a great length of time ; and it is therefore reasonable, that his heirs should receive the entire part when his term of service has been abridged by his death. *lf, in addition to these liberal usages of the marine law, [ * 182 ] and which, I apprehend, are to be met with in the maritime law of all commercial nations, we attend to the special cir- 143 182 CASES IN CHANCERY. 1817. cumstances of this case, and consider that the entire services ^*r~^-^^s of the voyage have been rendered by the supercargo, and his GRAY agents, competently and discreetly selected by him ; that they M v - acted under his appointment, and looked to him exclusively for payment : that they conducted the voyage to a prosperous issue, by which a large profit was produced to the defendant ; that he approved of their conduct, and never questioned either the necessity or wisdom of the substitution ; and that he had since intimated that a commission was due, there can scarcely remain a doubt, under all these considerations, that the plaintiff is entitled, ex &quo et bono, to the stipulated compensation. But the plaintiff claims, not only the compensation men- tioned in the instructions, but, also, the two and a half per cent, on the sales of the wine, in pursuance of the agreement of the 5th of August, 1807, between Phelps, Page, and Co.. and the testator. This agreement was ac- cording to the allowance contained in the first proposals of the defendant to Phelps, Page, and Co., of the 27th of December, 1806, and their answer of the 14th of February following. It was an allowance which the defendant had procured for, and in the name of the supercargo, for the voyage in contemplation, and before he had selected the testator for that trust. It was, in the first instance, under his control, and for his benefit. He had a right to make such contract as he pleased, with the future supercargo, in respect to the compensation he was to receive ; and I am inclined to think that the testator could claim no more, or other compensation for his services, throughout the voyage, than what is specified in the instructions. The language of the instructions is very precise, and the two and a half per cent., there allowed, must be understood as including [ * \S3 ] all the commissions of the supercargo. Those ^commissions were to arise out of the proceeds of the outward cargo; and it, is not to be supposed that a further commission of two and a half per cent, on the sales of the outward cargo, was in contemplation. The silence of the instructions on that point, and their express and precise declaration of what was to be the nature and amount of the compensation, preclude any such inference. I am of opinion, therefore, on this point, that the de- fendant is entitled to the credit which he claims by his an- swer, of 1 ,230 dollars, as being part of the profits of the voyage. 2. The next point in the case is, whether the plaintiff is entitled to recover the amount insured by the policy } cancelled by the defendant without authority. There is some difference of opinion between the par 144 CASES IN CHANCERY. I J;J ties, as to the origin and motive of the insurance on the 1817. testator's life. ^*~^~* - The defendant says he was desirous of being indemnified GUAY for h's advances on account of the testator, by an insurance on his life, as well as on his commissions ; and that he, ac- cordingly, suggested it to the testator, who acquiesced, and told the defendant, before he sailed, that he had applied, for that purpose, to the agent of the London Insurance Office. A witness, (James B. Murray,} present at the conversation between the defendant and the testator, s.iys, the sum was iot exactly fixed, but it was mentioned to be between 2 and 3,000 dollars ; and that it was understood between them, Miat the testator was to fix the sum at the agent's office, and \he defendant to pay the premium. On the other hand, it is in proof by another witness, G.^e'mg about I '.wge W. Murray,) that as a friend to the testator, he first j-.g^^J* suggested to him a policy on his life, for the benefit of his ordered insnr- *family , and he went with the testator to the agent's office, [ * 1 &4 ] .vhere orders for the insurance were given. That he prom- *< to be made ., v * on his life to the .sed the testator, the day he sailed, to see that the policy was amount of spoo completed, and to take care to have the premium paid. That pounds sterling. 1-1 i-i -i i f i i i a ' K ' - / "- u der- aiter the ship had sailed, he informed the defendant, that ti.e took to pay the testator had ordered an insurance on his life, to which the p remium an . d . . . have the busi- delendant replied, that he would write to his correspondents ness completed, in London, that if the risk was taken, to complete the insu- d his agent m '. 7 7 / T -i j London obtain- rance according to the orders oj the testator, and to pay the ed a policy for premium, provided the witness would agree to leave the ^ akTTne policy in his hands. premium for The orders given by the testator are in proof, and the afterwards af amount of the insurance was three thousand pounds ster- teging there wds ling, written at large, and repeatedly, by the testator. He order^withwu declared, therein, his object to be, to secure to his wife and the knowledge children, in the event of his death, a certain sum, and that ^[e^P 1 ^! when the terms were known, the agent of the office was camellia and to communicate with George W. Murray, who was author- 1^,^',"^^. ized by him. All this appears by the testimony of Charles other policy u> Murray be exerilte a for miin ay. 450 pounds ster- We cannot possibly be mistaken as to the great and lead- ling. G. hav- ing motive of the testator, in procuring an insurance on his on^'year'''^/ life, nor can we be mistaken as to the amount of the sum was liei.i 'to he which he intended to insure. It is very clear, also, that hls^a^repre' when the defendant, afterwards, undertook to cancel this (tentative forth* policy, on the ground of mistake in the sum intended by the o^m'a*] policy* testator, he assumed a fact which did not exist. which had beea The defendant professed to act, throughout the whole transaction, under the impression that the testator had no premium? other object in ordering the insurance, than the defendant's indemnity for the advances which ne might make. In this VOL. III. 19 14r> 184 CASES IN CHANCERY 1817. he was, also, mistaken. That indemnity might have had ,^^-v^-^^y some influence with the testator, but his governing motive, GRAY according to his own solemn declarations, and according to MUKR\Y tne testimony of G. W. M., was of a higher, more pressing, F * 185 I ant ^ more interesting nature, since it was to secure *some provision for the future support of his wife and children. I think the conduct of the defendant shows, very strongly, that the life insurance was not explicitly and precisely under- stood, at the time, to be solely or principally for his in- demnity. On the first of July, (the day of the departure of the ship,) he writes to his Lonaon correspondents, to have insurance effected on the supercargo's commissions, to secure his advances. Why omit at that time any mention of the other policy ? The testimony of George W. Murray shows that it was after the testator had sailed ; and when he men- tioned to the defendant the orders which the testator had given, that the defendant proposed to take the business into his own hands, and to pay the premium, provided he could have the policy as a security. He accordingly writes to Mullett and Co., on the 15th of July, that as a further security, the testator had forwarded orders to insure his life ; and he directs them to complete the business, and take the policy into their hands, and adjust the premium, and charge it to him. The witness George W. Murray was under engagement to the testator to pay the premium ; and this interference and assumption of the business, by the defendant, was vol- untary, and to answer his own purpose. Having undertaken to do the business, in pursuance of the orders of the testator, in the stead of George W. Murray, he was bound to do it well and faithfully, according to those orders : and having performed it, he was concluded and bound by the act of performance. The orders of the testator were received and accepted at the London Pelican Office, and the insurance made, the policy delivered, and the premium duly paid by the agents of the defendant, in pursuance of his letter of the 15th of July. All this is proved by the three witnesses, in London. (Charles Murray, Jenkins Jones, and Frederick Mullett.} It became, then, a complete and executed contract. The [ * 186 J *right was vested and fixed, and there was no error or mistake in the case. The next part of the history of this case relates to the act of cancelling the policy, by the directions of the defendant. The answer states, that on the 7th of November, and before any reply was received from his London correspond- ents, the defendant went, with George W. Murray, to the agent's office in New- York, and there discovered that the testator had insured his life, to the amount of 3,000 pounds 146 CASES IN CHANCERY. '136 sterling; and that an answer, favorable to the application, 1817. had been received. He states, further, that not knowing v^^-^-x^ that the testator had any other object beyond the defendant's GRAY indemnity, and deeming the premium high, and considering MURRAY. it would be for the interest of the testator, he ordered the insurance for 2,000 dollars only. It appears, also, by his letter to his correspondents, of the 7th of November, that he ordered 450 pounds sterling to be insured, and drew for the premium, and directed them to nold that policy, and the one on the commissions, for him. It is a little singular that in tnis letter, as well as in the one to the plaintiff, of the 13th of November, the defendant was silent as to the amount of the insurance in the orders of the testator, and which orders he knew had been accepted. His answer does not pretend that the sum named by the testator was contrary to any contract or understanding be- tween them, but only that, as the premium was high, and as he did not know that the testator had any object beyond the defendant's interest, he thought it for the interest of the testator, to reduce the policy from 3,000 pounds sterling to 450 pounds sterling. He says that he did this with the advice of George W. Murray. Whether he did, or did not, is immaterial, for the contract of insurance had passed, at that time, beyond the power of recall, by either of them. But George W. Murray declares, that he gave him different advice. When *the [* 187 j defendant told him the sum was so large, that he was sure it was a mistake, and talked of cancelling the policy, the witness advised him to have reference to the original order of the testator, before he took any step. But the defendant waited for no such reference, and he, afterwards, told the witness, that he had taken upon himself to cancel the policy. It appears, that on the 17th of November, he received the answer of his correspondents to his letter of the 15th of July, in which they state, that the testator had directed an insurance to 3,000 pounds, and that the office had accepted Uie risk, and that they had paid the premium, and charged it to him. Then follows his reply of the 19th of November, declaring that the policy for 3,000 pounds was a mistake, and must be returned in toto, and no further sum to continue than 450 pounds ; and his letter, also, to the plaintiff, of the 10th of December, announces to her the mistake, and his conviction of it. This last letter to the plaintiff shows that the defendant assumed a very bold and arbitrary control over the policy of her husband, and without regard to any interest but his own. He tells her, he understood that her husband only contemplated insuring 2,500 dollars, and that 2.000 147 187 CASES IN CHANCERY. 1817. dollars would cover his advances ; and that he took the liberty v^^-xx ^^/ of acting as he thought best for the interest of her husband , GRAY and had limited the sum to 2,000 dollars, and had directed MURRAY ^ e ^ rst Ph cv to ^ e cancelled. The policy was, accordingly, cancelled under his orders, and by his agents, Thomas Mullett and Co. ; and it was con- sented to be cancelled, and the premium returned by the Pelican Insurance Office, under the impression and belief communicated to them by the defendant, that the 3,000 pounds had really been mistaken for 3,000 dollars. But if the mistake had existed, why did the defendant depart from the testator's intention, and reduce the policy from 3,000 to [ * 1 83 ] 2,000 dollars ? His interference with the contract *of the testator, was not only without authority, but it appears to me to have been rash and unjust. In the close of the correspondence on this point, by the letter of Thomas Mullett and Co., of the 22d of December, they state that they had corrected the alleged mistake, and obtained the consent of the insurance office to cancel the 3,000 pounds policy. But they observe, by way of rebuke, that it was " rather singular " the defendant had never before mentioned " the sum." By this interference, on the part of the plaintiff, to pro- cure the destruction of a valid and executed contract, I think he has substituted himself for the insurers, and is answerable to the plaintiff for the value of the original policy, after deducting the premium. The pretence of fraud in the testator, by representing himself as sound, when he was not sound, is an inadmissible defence. The answer of the de- fendant states, that the health of the testator was indifferent when he sailed, and the defendant doubted of his life ; yet we hear of no scruple, or objection, on this ground, when the defendant was urging the testator to have his life insured, and when he was himself an assumed agent to effect it. If the health of the testator was sufficient for a policy to in- demnify the defendant, it was sufficient for a policy to provide for his own family. The defendant was, at least, duly apprized of the state of the testator's health, and he, in the character of a substituted insurer, is bound by his own knowledge. But there is no sufficient evidence of the fact, that the testator was of an unsound constitution. The momentary indisposition and despondency, mentioned by James B. Murray, is of no material consequence. As to any supposed acquiescence on the part of the plain- tiff, and binding on her, it is evident that she assumed the statements of the defendant to be correct. It is a well- established, as well as a most reasonable principle, that to constitute a confirmation, the party confirming must be 148 CASES IN CHANCERY. "fully apprized of his rights. (Ca?m v. Cann, I P. fVms. 1817 732. Roche v. O'Brien, 1 Ball and B. 339.) ^^^ I shall, accordingly, decree, that a reference be made to a GRAY master, to take and state an account between the parties, Mui ' lRAT and that in taking such account, the defendant be charged with the commission of two and a half per cent., and with the reasonable expenses and disbursements of the testator on the voyage, and with the five per cent., or one twentieth of the net profits, according to the tenor of the allowance mentioned in the letter of instructions from the defendant to the testator. That the defendant be credited with the com- missions of two and a half per cent, on the sales of the wine, to 1,230 dollars, and that these commissions be considered us constituting, part of the net profits of the voyage, at its termination. That the defendant be charged with the amount of the policy in the pleadings mentioned, for 3,000 pounds sterling, with interest thereon, from the time that the knowl- edge of the testator's death was received by the defendant, and be credited with the premium thereon, to 254/. 5s. That in stating the said account, no notice be taken of the subsequent policy which the defendant procured without authority. That the proofs already taken in the cause, be received as evidence before the master, a.id that the question if costs, and all further questions, be reserved, until the coming in of the report. Decree accordingly. 149 190* CASES IN CHANCERY 1817. DECOUCHE SAVETIER. *DECOucHE and others against SAVETIER and ^thers. [Distinguished, 2 Sandf. Oh. 45. Explained. 7 Johns. Ch. 123. Followed. 3 Edw 547. Overruled, 19 Huu 513, 510; 7 Johns. Ch. 90.] Rights dependent on the nuptial contract, are governed by the lex lay contractus. A contract of marriage, executed in Paris, between French citizens, contained a clause (donation mutuellc] by which the parties mutually gave to each, and the survivor, all the estate and property, acquired, or purchased, or belonging to either, at the time of his or her death, to be enjoyed by the survivor exclusively: the husband, afterwards, abandoned his wife, and came to reside in New- York, where he lived many years, having acquired a large personal estate, and died intes tate, without lawful issue, leaving his wife living in France : Held, that the wife, as survivor, took all the estate, under the donation, ac- cording to the law of France, to the exclusion of the relations of the husband ; and that her legal representatives, after her decease, were entitled to the whole, including not only what originally entered into communaute under the contract, but the separate property intended, in case of issue living at the death of either, to go to the children, as well as the joint increase of the common stock, during the life of the intestate, and the increase thereof, since his death, in the hands of the administrator. No lapse of time is a bar to a direct trust, as between trustee and cestui que trust. Therefore, an administrator, being a trustee, cannot set uo the statute of limitations in bar to the next of kin, or persons entitled to the distribution of the assets. But where a person takes possession of property in his own right, and is afterwards, by matter of evidence, or construction, changed into a trustee, lapse of time may be pleaded in bar. An executor cannot plead the statute of limitations in bar to a legacy, though he may against a creditor. The time of limitation of actions depends on the lexfoti, and not on the lex loci contractus. December 20 THIS was an amicable suit, brought for the purpose of obtaining the sanction of this Court to a compromise of the controversy between the parties, some of whom were iniants, and, therefore, not legally bound by their voluntary assent to the settlement proposed. The bill, which was filed September 3, 1817, stated, that on the 24th of January, 1787, Claude J. F , then of the city of Paris, contracted marriage with Madelaine *S' , of the same place, and were then and there married. Previous to the marriage, and in contemplation thereof, marriage articles (im contrat de ma- 1 * 191 1 riage) were executed by *them, the 22d of January, 1787, before public notaries, in due form, and by the consent of parents, &c., and by which they stipulated as follows : " That there shall be a community of property between them, ac- cording to the custom of Paris, which is to govern the disposition of the property, though the parties should here after settle in countries where the laws and usages are 150 CASES IN CHANCERY. 191 different or contrary: (a) That neither of the parties shall 1817. be bound by the debts or hypothecations of the other before the marriage, but such debts are to be paid out of the property of the contracting party only. That C. J. f\ (the husband) declares that his property consists of two thousand livres, in merchandise, goods, and cash, arising from his thrift and economy. The uncle of M. S. (the wife) settles on her in dowry, or marriage portion, in advance or anticipation of the future inheritance of her father and mother, six hundred livres ; her parents to contribute each one half thereof, and which sum the uncle declares he has received from her parents, and has paid it to C. J. F. (the husband.) The wife, as a further marriage portion, advances fourteen hun- dred livres, consisting of chattels and ready money, the proceeds of her own thrift and economy, and which last sum C. J. F. (the husband) agrees to be chargeable ivith, in consequence of the marriage. That of the goods of the parties, there shall be placed in common Jilt hundred livres, and the residue, with what shall be acquired thereafter, by succession, gift, legacy, or otherwise, shall be in severally, to the person to whom the same shall come, and the represent atives of that person exclusively, in the line of representation. (A) That C. J. F. (the *husband) endows and settles on M. S. (his wife) one thousand livres, to be enjoyed by her, as soon as she shall be entitled to dower, and to remain and be the property of the children of the marriage. That the survivor shall take, per preciput, (c) out of the common property, before any distribution, such articles of furniture as the survivor shall choose, according to appraisement, without regard to the sale price, or the amount in ready money, at the election of the survivor. That if any of the chattels held in sever alty shall be disposed of during the marriage, they shall be replaced, pursuant to custom, and the remedy for the same shall follow the nature of, and rules which regulate, real property, and shall belong exclusively to the one entitled. That the wife and her children, on re- nouncing all the said common property, may resume all that she brought into the common fund, together with whatever shall devolve upon her during her marriage. That if the () " Les futurs epoux seront communs en biens, suivant la Coutume de Paris, qui regit la dit communaule et en reglera le partage, encore que, par la suit, ils fassent leur demeures ou des acquisitions en pays ou les lois et usages seroient contraries, aux quelles ils derogent expressment par ces pre- sentes." (6) " Des biens des futurs epoux, il en entrera de part et d'autre, en com- munaute une somme de cinq, cents livres, et le surplus, ense aible ce qui lieur viendra par la suita, par succession, donation, legs, ou outrement, leur eraet derneurera propre en aux leur de cote et ligne." Cc) Vide Pothier, Trait de la Comm. p. 1. ch. 3. s. 2. art. 7. s. 1. Ferriere ur 1' article 229 de coutume de Paris, s. 2. Code Napoleon, art. 1515. 151 192 CASES IN CHANCERY. 1817. w ^ e renounces, she may take back, besides her stipulated dowry, the preciput, or the stipulated sum, aforesaid, and the whole to be clear of debts, or hypothecations, by virtue oi tne sa *d community of goods, and from which she shall be discharged and indemnified by her husband, &c. That the said parties mutually give to each, and to the survivor, all the estate and property acquired or purchased and belonging to either party, at his or her death, to be enjoyed by the survivor exclusively. This donation, not to take place, if at the death of the party first dying, there should then be children living of the marriage ; but if any such children should afterwards die, the donation to resume its force, (a) [*193] *That the parties continued to live together until 1792, and during that time had two children, both of whom died during the lifetime of their mother, and in infancy, and without making any disposition of their property. That, in 1792, C. J. F.,the husband, left M., his wife, and refused to cohabit with her ; and abandoning her and the family, he left France, with a woman who took her name and personated her, and went to Martinique ; from thence the) came to the United States, and settled in Neiv-York, where he established himself, as a jeweller. The woman who so accompanied him from France, passed as his wife, and the) cohabited together until his death. During their cohabitation, they had several children, (defendants,) all of whom are liv- ing, the eldest being of age, the second nineteen years, and the third fifteen years of age. The husband died on the 10th of June, 1810, intestate, possessed of a personal estate in money, goods, and securities for money. On the 21st of June, 1810, letters of administration were granted to M. ., (the woman who so personated the wife,) who possessed her- self of the personal estate, appropriated the one third there- of to her own use, procured herself to be appointed guardian of her children, and retained the other two thirds, as their distributive share. On the 19th of March, 1812, the said administratrix made her will, and gave all her estate equally to her three children, and made the defendants (S r and (a) " Us se font donation mutuelle et reciproque, en la meilleure forme et maniere que donation puisse valoir et avoir lieu, 1'un a 1'autre, et au survi- vant d'eux ce accepte par les S. et Demoissella, futurs epoux pour le dit sur- vivant de tous les biens, meubles et immeubles. acquetes, conquetes proprts et autres qui pourront appartenir au premier mourant, au jour de son deres, a quelque somme que letous puisse monter, et en quelque endroit qu' ils soir lit situes ; pour enjouir par le dit survivant entoute propriete et comme de chose lui appartenante, a compter du jour du deces du dit prem; T mourant. " Cette donation n'aura neanrnoins point lieu, si au jour du deces du di' pre mier mourant, il y avoit des enfans existantes nes ou a naitre du <;.'t innr' igo inais s'il y eii avoir et qu' ils vinssent, par la suiti . a deceder, ou faire profes sion en religion, en minorite ou majorite, avant d'avoir valablement dispose, alors la dit donation, dont 1'effet n'auroit ete que suspendue. reprendva la force et vertu, comme s'il n'eut janiais existe d'enfants du dit manage." 152 CASES IN CHANCERY. *!{.)-! -u) her executors, with directions to convert her estate 1817. into money, to educate the three children, and pay them their \^^~^~^. Respective portions, when they came of age or married. On DECOUCHE the 28th of March, 1812, the said administratrix died, and g AVK v TIER her executors possessed themselves of the goods, &c. in her possession, and have been appointed guardians to her children. That on the 30th of March, 1816, M. F., the real wife died at Lyons, where she had continued to live with her mother, after her husband had abandoned her. She died intestate, leaving M. A. S., her mother, the plaintiff, living, who, by the laws of France, and the legal effect of the said marriage contract, is entitled to four sixteenths of all the estate of the said M. F., her daughter, at her death. The plaintiff C. S. is brother of the wife, and is entitled to three v'.ittenths of her property. J. S., (plaintiff,) her brother, M. B., (plaintiff,) her sister, A. I. B., the sister's husband, (plain- tiff,) and P. B. and F. B., children of a deceased sister, (plaintiffs,) in right of their mother, are respectively entitled to three sixteenths each, of the estate of the said deceased M. F., &c. That the defendants, who are executors and guardians as aforesaid, have possession of goods and money, and securi- ties, which were in possession of the administratrix, and which belonged to her said husband, to the amount of thirty-five thousand dollars. That the eldest child of the administra- trix, who was of age, had received no more than what was necessarily expended on his education. The bill prayed that the defendants, as executors and guardians, may be compelled to account with the plaintiffs, for the property so in their possession. The answer of the defendants, filed the 4th of August, 1817, admitted the facts charged in the bill. They stated that the husband made all his property, as a jeweller, while he lived with his assumed wife, in New-York. That she transacted all the mercantile business, as he -could not read nor write, and was totally ignorant of the English language That she was chiefly instrumental in the acquisition of the ^property of which he died possessed, and considerably in- [ * 195 J creased it after his death ; the inventory, in 1810, being only 26,000 dollars, while that of 1812 was 35,000 dollars. That the children by the assumed wife were treated by their father as his legitimate offspring. And the defendants submitted to tne Court, whether the plaintiffs were not barred, by the lapse of more than six years since the death of the husband in 1810, without making any claim, as well as by the lapse of time since the husband separated from his wife ; and if VOL. III. 20 153 195 CASES IN CHANCERY. 1817. no *-> whether the meritorious services of the assumed wife to v^-s^^x her husband, during his life, and to the estate, since his death, DECOUCHE do not entitle her and her children to a share of the estate, SAVETIER. as P artner > ag en t, or servant. The plaintiffs had offered to accept of a moiety of the property, in satisfaction of their claim, which went to the whole of the assets in the hands of the defendants ; and all the parties who were of legal age assented to the compro- mise ; but two of the defendants being infants, application was made to the Court for its sanction. The chancellor, on the 6th of September, 1817, ordered it to be referred to a master, to examine and report whether the proposed compro- mise was for the interest of the infant children or not. On the 14th of October, 1817, the master (J. /. Drake) made a special report, in which he stated that the amount of property left by C. J. .P., at his decease, was 26,307 dollars and 3 1 cents ; and that the real wife died in a public hospital, at Lyons, intestate ; and that the plaintiffs, by the laws of France, are entitled to her property, in the proportions stated by the plaintiffs. But after examining the marriage contract, and discussing the several questions which arose on its con- struction and effect, he concluded that the plaintiffs, as rep- resentatives of the wife, are entitled only to about 1,200 dol- lars, or 6,650 livres, under the contract, and that, therefore it would not be for the interest of the infants to accept of the proposed compromise. That even admitting that the wife, [ * 196 ] as widow, *would have been entitled to the moiety of her hus- band's property, had she claimed it, yet she was not entitled to the property acquired, afterwards, by the mother of his children, nor, under these circumstances, to interest; and he seemed to think that the statute of limitations was a bar to the claim of the plaintiffs ; and, on the whole, he concluded that it was not for the interest of the infants to accept the proposed compromise. for the plaintiffs, contended, that they were entitled to all the personal property of which C. J. F. died possessed, and to all that had been added to it by the adminis- tratrix, since his death ; and consequently, that the proposed compromise, by which the one half was relinquished in the defendants, was for the interest of the infant children. The rights of the claimants, as heirs of M. F., so far as they arise out of the marriage contract, must depend on the law of France. That contract was not only made in France, and with a general view to the law of that country, but the first article expressly stipulates that it shall be governed by the custom of Paris, although the parties should, afterwards 154 CASES IN CHANCERY. 196 fix their domicil, or acquire property, in countries where the 1817. laws and usages may be different, and which laws or usages s^*-^^-^^ the parties expressly renounce. DECOUCHE The hx loci contractus is, therefore, to oe investigated. It is not a question of natural equity, but of positive institu- tion. The rules of the common law of England, or those which have been adopted or established by our legislature, and the decisions of our Courts, can afford no light on the subject. The Court must determine the question as if it were sitting in Paris. Though the master, in his report, seems to admit that the lex loci contractus is to govern, he has not deemed it neces- sary to ascertain what that law is. It is not probable that the royal notaries of Paris, who *are a body of men distinguished for their learning, intelli- r * \ 97 gence, and probity, would have drawn up a contract contain- ing stipulations so superfluous and contradictory as the report suggests. The apparent discrepancy in the different articles, ought rather to be imputed to the difficulty of translating from one language to another, technical terms, which have no prototypes in our laws, institutions and manners. It is a principle of universal law, according to Pothier, (Trait, des Oblig. n. 92.) that in the interpretation of contracts, their terms ought to be construed in a sense which will give them effect, rather than in a sense in which they would have no effect. The master is mistaken in supposing that the donation mutuelle, in the last article of the contract, embraces only the property held en communaute, and amounting, in 1787, to about one thousand livres, and does not extend to the prop- erty held as propre to each of the contracting parties. The stipulation of propres (or severally, as it is translated) is not to be confounded with substitution, or perpetual entail- ment, to which it bears no analogy. Chancellor D'Aguesseau, in 1741, by an ordinance, which was submitted to all the par- liaments of the kingdom, prescribed the mode of entailing property which was not to make part of the communaute, upon the heirs. This regulation would have been followed by the notaries who drew the contract, if that had been their intention. Pothier (Traite de la Communaute, n. 105.) de- fines the term propre, when used in matters of communaute, as meaning that which is not common, or which does not enter en communaute. But though the 1 ,500 livres advanced by the husband and wife, respectively, did not irrevocably enter into la commu- naute, as was the case with the 500 livres, advanced by each, yet. by a fiction of law, the 3,000 livres were confounded with the communaute, so long as it subsisted, and the husband had 155 (98* CASES IN CHANCERY. 1817. tn e "ght of disposing of this sum, in his lifetime, ad s^.*^^-*^ nenda onera matrimonii. Those propres *are termed in the DECOUCHE French law, propres fictifs de communaute, or propres conven- SAVETIER tionelles ; and Pothier, in his treatise, (n. 325, 326.) show? the power of the husband over them. The only effect, there- fore, of this stipulation in the contract would have been, that on the decease of C. J. F., leaving lawful children, as heirs (de ligne) they would have taken 1,500 livres from the amount, of the entire communaute, before the distribution of the gene- ral mass; and his widow would also have taken an equal sum. As he left no lawful children living at the time of his death, the clause of donation mutuelle was brought into ope- ration, the effect of which is to give to the survivor all the property possessed by the party dying, at the time of his de- cease. Had there been no such clause, the propres would have been extracted from the communaute, before any parti- tion, and would have descended to the heirs lineal and col lateral (aux lews de cote et ligne) of the respective parties. (Pothier, Trait, de la Comm. n. 329.) The contract provides that the restitution of the propres, (le remploi des propres,) if any shall be aliened during the marriage, shall be made according to the custom, and the party who is entitled thereto, or his or her heirs, shall have a remedy in the nature of a real action. (Vide Pothier, Trait, de la Comm. n. 585.) The donation mutuelle, then, clearly includes the 3,000 livres of propres fictifs de la communaute ; and expressly all the property, (meubles, et immeubles, acquetes, conquetes, pro- pres et autres,) which either party might possess, at his or her decease, whatever might be the value, or wherever situated. The propres are included in the donation nominatim; and the import of this term, as well as the words of this stipulation, are explained by Pothier, with his usual precision and perspicuity. (Trait, de la Comm. n. 226. n. 340.) [*199] *There is, then, no discrepancy between this stipulation and the subsequent donation mutuelle; and, as the children of the marriage are dead, both clauses may have their full operation and effect. To see what part of the property, belonging to the hus- band at the time of his death, the wife is entitled to, under the communaute, connected with the donation, we must inquire what, by the custom of Paris, was the. nature and extent of the communaute. According to Pothier, this communaute includes all the property of the parties existing at the death of the party first dying, except as excepted, by the custom or the contract. (Ibid. n. 168.) The property of which the husband, in this case, died possessed, in 1810, is included in the communaute. 156 CASES IN CHANCERY. 191) oy the custom, and is not excluded by the contract. That 1317. property did not come to him by succession, donation or leg- v^^-x^-^x acy ; but was the fruit of his commercial industry, exercised DECOUCHK upon the personal property which formed the capital of the communaute, (properly so called,) and the propres fatifs de communaute. It is settled, that the interest and profits of the propres, (les fruits des propres,} acquired during the marriage, enter into, and make part of the communaute, even though the parties, after putting a specific sum into commu- naute, reserve the residue as propre, and also what may be acquired by succession or otherwise. (Pothier, ibid. n. 204.) In the present case, there being no children of the mar- riage surviving, both the propres and the communaute, (strictly so called,) and all the fruits and. profits thereof, are absorbed in the universal and irrevocable donation between the parties, with which the contract concludes. The word " autrement" is not to be extended, so as to destroy the effect of the stipulation as to the propres. It meant only to refer to such property as should be acquired by a title of the same class with those specified, such *as succession, legacy, donation, or some other lucrative title. [ * 200 J (Pothier, ibid. n. 323. n. 324.) The condition, then, on which the term propres had an ephemeral existence, having been satisfied, and as the prop- erty left by the husband did not come to him by succession, legacy, donation, or any other similar title, but consisted of the original capital of the communaute, (literally so called,) and the propres Jiciifs de communaute, and the fruits of his industry exercised on that capital, the whole must be inclu- ded in the general donation mutuelle. Donations par contrat de manage are regarded with great favor and benignity in the French law. They are valid without any actual delivery of the things, and extend to future acquisitions, as well as to property then in posses- sion, and are irrevocable during the coverture ; and all the property possessed by either party at his or her decease, may be delivered to the survivor, without ceremony. (Lau- rierc, sur le Coutume de Paris, torn. 2. p. 330. Code Civil, art, 1082, 1083. 1086, 1087.) Our statute of distributions has nothing to do with this case. The law of the country where the wife was domiciled at her decease, must govern the inheritance of the personal property to which she was entitled, on the death of her husband. Huberus Protect, torn. 2. Z. 1. tit. 3. De conflicts legum, 9. p. 540.) (a) (a) " ./Yore tantum ipsi contractus ipstn que nuptite certis locis rite celebrate ulique pro justis et validis habentur, sed etiamjura el ejfecta contractuum ntp- tiarumque in us locis recepta, ulique vim suarn oltinebunt." 157 ii()0 CASES IN CHANCERY. 1817. The plaintiff* 8 claim as heirs of M. F., ab intestate, ac .^^-^^-^^ cording to the laws of inheritance in France. The de.fend- DECOUCHE ants claim as legatees under the will of the pretended M. F., SAVETIER w ^' nav irig no rights over the property herself, could impart none to others. Personal property follows the law of the place where the intestate is domiciled, in whatever place that property may happen to be situated. (Huber Pra.le.ct. torn. [ * 201 ] 1. 278. /. 3. tit. 13. de succes. ab infest. *collat. (a) This is the established doctrine of law recognized in the Courts of all countries. The collateral heirs of C. J. F. have " no part or lot in this matter." They knew, that, by the laws of their own country, they could assert no claim to what their ancestor had irrevocably conveyed to another, in 1787. They have not, therefore, appeared as parties ; and having no interest in the subject of controversy, it was not neces- sary to make them parties to this suit. Having shown that the plaintiffs are legally entitled to all the property left by C. J. F. at his decease, it will be no less easy to show that they are, also, entitled to all the additions made to that property since his decease. The authorities on this subject are equally clear and explicit ; that the heir who has established his right to the succession, has a right to demand of the person who has obtained possession of the estate, on the death of the intestate, not only the property, as it existed at his decease, but every thing which it has produced since, or which in any manner appertains to it. (Dig. lib. 5. tit. 3. 1. 29. s. 3. (6) Pothier, Trait, du Droit de Propriete, n. 400, n. 401, Haber. Prcelcct. torn. 2. 755. lib. 5. tit. 3. de Hare d. petit, s. 14. Pothier, Pandect. Just, in Nov. Ord. Digest, torn. 1. p. 186.) Whether the possession of the defendants is bona fide or mala fide, can make no difference as to their obligation to restore every thing belonging to the succession claimed * 202 ] *by the plaintiffs, as the legal heirs. (Pothier, ibid. n. 426.) The most favorable character in which they can be viewed, is that of a negotiorum gestor, in which character, perhaps, they would be entitled to compensation out of the profits made of the property of the intestate. Another objection has been stated by the master. It is (a) " Sapefit ut diversum jus succedendi ab intestato in locis, ubi iefunctus habuit domicilium, atque in us locis, ubi bona sita sunt, obtineat, tcuoitatur se- cunclum utrius loci leges succcssio regenda sit. Communis et recta sententia est, in rebus immobilibus servandum essc jus loci, ubi bona sunt sita ; quia cum partem ejusdem territoriifaciunt, diversce jurisdictionis legibus adfici non pos- sunt ; verum in mobilibus nihil esse causcn, ali.ud quam jus domicilii sequamur ; quia res mobiles non habent affectionem versus territorium, scd ad personam patris familias duntazat ; qui aliud quam quod in loco domicilii obtinebat, vo- luisse videri non potest." (6) " Non solum ea qua: mortis temporefuerunt, sed etsi qucepo tf '" a ia"m.cnt* nare ditati accesscrunt, venire in harreditatis pctitionem." 158 CASES IN CHANCERY. 202 alleged that the statute of limitations of this state is a bar, at 1817. law and in equity, to the assertion of the rights of the plaintiffs. x_^~v~w It cannot be denied, that the recovery must be sought, and DECOUCHI the remedy pursued, according to the lex fori. (Nash v. SAVETIEB. Tapper, 1 Caines's Rep. 402. Rugglcs v. Keeler, 3 Johns. Rep. 263.) But if it had not been so determined by the Supreme Court, in the cases cited, it might have been con- tended, that a statute of limitations did not fall within this rule, but is as much a discharge of the contract as an insolvent or bankrupt act, and, therefore, was to be applied according to the lex loci contractus. One of the learned judges of the Supreme Court of the United States seemed to incline to that opinion, in the case of ReimsdyJc v. Kane, (1 Gallis, Rep. 371. 376. per Story, J.) decided in the Circuit Court of the United States ; and he grounded himself on the author- ity of Casa Regis. (Decis. 130. s. 33. Decis. 179.) (a) By the French law, the claim of the plaintiffs would only be barred by the longest prescription, which is thirty years. (Lauriere sur la Coutume de Paris, torn. 1. 374, 375. Code Civil, art. 78922622281.) The parties, by their contract in this case, stipulate to oe bound by the law of France, wherever their domicil or property may be. Even Hubcrus, who originated the dis- tinction between the lex fori and the lex loci contractus, and says, that the former is to control as to real property, admits, that in case of a marriage contract, the latter may prevail even as to real property situated in other countries. *(Hub. Pralect. torn. 2. p. 540. 1. 1. tit. 3. sec. 7. p. 541. [ * 203 j sec. 9.) And he considers the plea of prescription as an- nulling and discharging the contract. " Debitum ex vi legis abolitum." (Ib. p. 1477. 1. 44. s. 2. tit. 3.) Pothier, also, in his treatise of Prescriptions, after stating the general rule, that the lex loci rei sitce is to be applied to prescriptions as to real property, says, that movable property is governed by the law which governs the person of the owner, that is, by the law of the place where he is domiciled. (Trait, de la Prescription, part 2. art. 5. n. 251.) Again ; the marriage contract is a specialty, being under a notarial seal ; and though the present action arises inci- dentally on this contract, yet it has the same time as the principal action on the sealed instrument. (Cole v. Saxby, 3 Etp. N. P. Rep. 160. per Lord Kenyan.} This is in the nature of a writ de rationabili parte bonorum at the common law, or of the petitio hereditatis of the c'vil law, the former of which, is not bound by the statute (a) " Ratio est, quia statutum intelligit semper disponere de cor.tractibus fac- tis intra et non extra territorium suum." 159 203 CASES IN CHANCERY. 1817. f limitations, (Gttfton, 109.) nor the latter by the prescriptio longi temporis. (Code, lib. 1. tit. 3. s. 7.) Sampson, contra. The master has reported against the proposed compromise being for the interest of the infants, on two grounds: 1. That neither M. S., nor her legal rep- resentatives, is entitled to any part of the proper or separate estate of C. J. F., deceased ; 2. That if they were so entitled, their right has become barred by lapse of time. The plaintiffs supposed that the master had mistaken the import of the marriage contract; and they obtained the opinion of an eminent French jurist (Count Real} in support of their own conclusions against that of the master. They express great surprise that the master should have so mis- conceived the meaning of the contract, and suppose it to be owing to an inexact translation. But when it is considered [ * 204 J that the learned and logical Pothier *has written two vol- umes to explain la communaute to his countrymen, in their own language, it is not surprising that a stranger to the language and laws of France should find some difficulty in understanding the terms of the contract. It is said, that the word " propres," when used in relation to communaute, has a meaning widely different from its ordinary acceptation ; and that " acquets," and " conquets," which, on all occasions, are regarded as synonymous, are here used in direct opposition. It would be equally, if not more difficult, for the most learned and able French lawyer to understand an English marriage settlement, and all the corollaries, from the rule in Shelly's case. It is unnecessary to attempt any explanation of the various terms used in this contract. They are all fully commented on by Pothier, and all their modifications, and the various exceptions and derogations, are stated by him in his treatise de la communaute. The master conceives that the two principal clauses, the one called the stipulation or reservation de propres, and the other the donation mutuelle, are repugnant to each other. and that the latter should be, therefore, rejected, on the principle that the first clause in a deed is to prevail, and this last clause giving what is already disposed of, is nugatory. After mentioning how much shall enter into the part- nership, (la communaute,} the stipulation is, that " the residue, with whatever may accrue to the parties by succession, gift, legacy, or otherwise, shall be in severally to that party to whom the same shall come and belong, and to the repre- sentatives of that person exclusively." It is agreed that this is not a donation, but a reservation, which gives to movable property the quality of real ; a 160 CASES IN CHANCERY. 204 quality, however, ephemeral, and to last no longer than until 1Q17. the event happens, for which it is meant to provide, when *^r~^~ ^.^ it ceases to be realfatifor propre. It is, no doubt, a clause DECOUCHF. inserted for the benefit of the children of the *marriage, and g v - to prevent the parents of the opposite line from succeeding ,- % ^^ ^ to any part, until a failure of all the children of the marriage ; so that they first succeed to each other, and the last child is to have the whole, and the surviving parent nothing ; be- cause, in having the quality of real property which never ascends, and extended by the term aux leurs, the children would all, in succession, have the benefit of it. But when the last child dies, the rule of paterna paternis, materna maternis, ceases ; and the property, again becoming movable, no longer follows the artificial direction, but the surviving parent succeeds to it, as the property of his child. But. then, what is to be the effect of the additional terms de cote et ligne, unless it be, that the property shall go to collaterals, in failure of children of the marriage, and not to the opposite line ? It is, indeed, not easy for an untutored mind to comprehend how so plain a clause should be of so little avail, that a subsequent clause, without a new consid- eration, should abrogate it. The authority of Pothier him- self, (tie la Communaute, n. 329.) which has been cited, shows, that, had it not been for the subsequent clause of donation mutuelle, the same property that is to go to the survivor would have descended to the heirs, lineal and collateral, of the respective parties, under the general de- scription, aux lews de cote et Ugne, excluding from the paternal proprcs the maternal line, and vice versa. Is not, then, the clause of donation mutuelle repugnant to the first stipulation, which reserved this property, so excepted from the communaute, to the side and line, paterna paternis, materna maternis ? The counsel for the defendants cannot but feel great diffidence in urging conclusions so different from those of the learned counsel for the plaintiffs, and of the eminent jurists he has invoked to his aid. But aside from the legal subtilties of the French jurisprudence, the conclusion of *the master would appear quite satisfactory and just to a [ * 206 ] person of common sense or of ordinary understanding. It is said, that the construction given by the master would make the reservation an entail, without any of the forms prescribed by the ordinance of Chancellor D' Aguesseau. But the reservation would not amount to a substitution, if a substitution be, as it is called, an entail ; for, according to Pothier. the quality of realisation would cease as soon as the property vested in the first collateral, as it would, if a simple stipulation of propre have ceased upon the first par- VOL. Ill 21 16 J CASES IN CHANCERY. 1817. tition between the children and surviving parent; or, if auot '~^^s-^~/ siews, when the last child should have succeeded, and died PECOUCHE without issue, and without making any disposition of it. SAVETIER Again ; the master thinks that, as all the property C. J. F. left must have come to him alone and individually, being so long separated from his wife, and that, as it did not come to him by succession, donation, or legacy, it must have come "otherwise;" and, if so, it was, by the stipulation, his own proprefatifreal, by virtue of the term "otherwise." But Pothier is again cited to show that the word " autrement" upon which this question mainly turns, has, in this stipulation, a restricted, or, as it is called, a categorical sense, and applies only to such objects as are in a similar predicament with those expressed, namely, succession, donation, legacy. There is clearly no mistake in the translation of the word autrement. The plain English is " otherwise ; " and to so plain a word the master has given the obvious meaning, that is, what should come in all other ways, or in any other way or manner. If the master has mistaken this matter, it is no discredit to his judgment ; for he is not the first who has conceived that this clause was to have the effect of a substitution, as- [ * 207 ] suring to the family of the stipulating party all the ^movable property which came from that line. (See Pothier, Hid. n. -339. n. 352.) It must be owned, we think, that the meaning given to the word " autrement" savors much of refinement ; but as the whole of this clause is discussed by Pothier, it is only neces- sary to refer again to that writer, and leave the question to the better judgment of the Court. Next, as to the bar of prescription by the statute of limita- tions or lapse of time. Our statute (1 N. R. L. 184.) has no saving clause for plaintiffs beyond seas. The plaintiffs' counsel reluctantly admits that it has been decided by the Supreme Court, in the cases which he cites, that the statute of limitations, which is the lex fori, is to be the measure of the time of prescription. This is sufficient here. To go further would be a useless waste of time and of learned research . But it is said, that this contract is a specialty, or in nature of a specialty, and is, therefore, barred, or not prescribed by legal presumption, in less than twenty years. The authority (or this argument is no more than an intimation of Lord Ken- yon, an obiter dictum of that judge, at circuit ; and the case before him is very unlike the present. The argument derived from analogy to the writ de ratio- nabiK parte bonorum is still more feeble. That was a writ by the custom of certain counties ; and the custom of the county 162 CASES IN CHANCERY. 201 served for it, as in the case cited, the county of Nottingham. 1817. Tile reason of the judgment in that case was special; namely, \^r-~^**^ that it was an original writ not found in the register, and not DECOUCHE mentioned in the statute, as one of the actions to be barred by six years ; for though the plea was non detinet, the action was not detinue ; and in this case, the true test is to be found whether this contract is a specialty, namely, whether it would be declared on as such. (Hutt. 169.) It is not denied, for the point is settled by the case of Bond v. Hopkins, (1 Sch. fy Lef. Rep. 429.) that if the *equi table title is not sued for, within the term that would [ * 208 . bar a legal title of the same nature, the Court of Equity will not relieve; or, in other words, that the bar at law is a bar in equity. Tlie plaintiffs' claim, if any thing, is for a distributive share ; and the statute of distributions (1 N. R. L. 313.) gives the remedy by debt, detinue, or account, as the case may require. The counsel then proceeded to cite and comment on the various authorities to be found in the books, as to limitations or prescriptions, particularly in relation to trusts and frauds : Smith v. Clnj, Ambler, 647. S. C. 3 Bro. Ch. 639. notes. Lacon v. Briggs, 3 Aik. 107. 3 Freeman, 55. 2 Eg. Abr. 578. 10 Vesey, 93. S. C. 2 Maddock's Ch. 241. 1 Mitford, PL 213. 1 Ch. Cas. 102. 1 Sch. 8f Lef. 109. 1 Salk. 154. in notes. Gift. Eq. Rep. 228, 229. Collins v. Good- hall, 2 Vern. 235. Vin. Abr. Limitations, T. note. Levellier v. Mackworth, S. C. Eg. Cas. Abr. 589. pi. 8. Parker v. Ash, 1 Femora, 257. Smallman v. Lord, 2 Aik. 71. Town- ?end v. Toivnscnd, 1 Bro. C. C. 554. Beckford v. Wade, 17 Vesey, 87. 10 Mod. 206. 1 Madd. Ch. 79. 441. 2 Madd. Ch. 84. 113, 114. There was no fraud in the conduct of the administratrix, the mother of these children, for when she joined her destiny to that of their father, she may have supposed him unmar- ried. Fraud is attended with concealment ; and an intent to cheat is of its essence. Had C. J. F. been wealthy, and she, knowing him to be a husband and a father, had formed the design to rob his children of their inheritance, it would have been a gross fraud. But she found him poor, and by her faithful industry and good management, she made him rich. Under the peculiar circumstances of the case, every presump- tion ought to be indulged in favor of her innocence. Admitting that time does not bar a direct trust, as between the trustee and the cestui que trust, yet the cases *cited show [ * 209 ] that where a party has slept on his rights so long as to mani- fest an acquiescence, a Court of equity will be passive, and will not lend its aid to afford him relief. A Court of equity, 163 209 CASES IN CHANCERY. 1817. independent of the statute, has its own rules, as to rejecting V^^NX-^.X stale demands, and discouraging laches and neglect. DECOUCHE SAVETIER. THE CHANCELLOR. This is an amicable suit for the pur- pose of settling, under the authority and sanction of this Court, the controversy subsisting between the parties. The facts upon which the plaintiffs rest their claim and the defendants their defence, are not in dispute. They are dis- closed and admitted by the pleadings. A proposition was made by the plaintiffs for a settlement, upon terms deemed honorable and beneficial to the parties. The claim went to the whole of the assets which came to the possession and were in the hands of the defendants, as executors, and the proposition was to accept of a moiety of this property in satisfaction of the claim. All the parties who were compe- tent to give their assent, agreed to the proposition. But as two of the defendants were infants, the sanction of the Court was requested, and an order of reference was accordingly made to a master, to examine and report, whether, in his opinion, the terms of the proposed compromise were for the interest of the infants. The master has reported, that it would not be for the in- terest of the infants to accept of the terms, and he has as- signed his reasons at large. In his opinion, the claim of the plaintiffs to the whole, or even to a moiety of the property in question, could not be sustained, if the cause was brought to a hearing. The parties have again submitted the case upon the plead- ings and the master's report ; and their counsel have argue I the claim upon the merits extremely well. The question is [*210] still, whether the demand has such foundation *and extent as to render the acceptance of the terms advisable. The plaintiffs are the lawful representatives, under the French law, of M. S., the true and lawful wife of C. ,7. F. She died in France, in 1816, a widow and intestate, and the law of that country governs the inheritance of the personal property to which she was entitled at the time of her death. It is a settled principle, that the descent of personal property, wherever situated, must be taken from the country of the intestate's domicil. Mobilia personam sequuntur, immobilia situm. (Hub. Prtelec. torn. 1. 278. lib. 3. de Success, ab. Int. Collat. Bempde \. Johnstone, 3 F'esey, 198. Somerville v. Somerville, 5 J^esey, 750. Bruce v. Bruce, 2 B. fy- Puller, 229. note. Desesbats \. Berquier, 1 Binney, 336.) There can be no doubt, then, that the plaintiffs are entitled to all the right to the personal property of C. J. F., deceased, which existed in his widow, at her death. Her representatives claim the whole of his personal prop- 164 CASES IN CHANCERY. -210 srty, by virtue of the marriage contract of 1787. If that marriage contract was out of the question, or could be waived, the plaintiffs would be entitled, under our statute of distribu- tions, to a moiety of the personal estate of F., inasmuch as he died intestate, without lawful issue. The claim, to a certain extent at least, under the marriage contract, or the claim under the statute of distributions, must prevail, unless barred by the statute of limitations. I shall consider the claim in all these points of view ; and though I shall be obliged to differ from the master in the construction of the marriage contract, as well as on other points in the cause, it is no more than justice to him to declare, that I have perused his report with much respect. It affords evidence of the ability, diligence, and zeal, with which he discharged his duty. 1. The marriage contract was executed with the requisite formalities, and was, doubtless, valid by the laws of*Franci. It declared that the custom of Paris should govern the dispo- sition of the property of the parties, though they should there- after settle in countries where the laws and usages were different or contrary. The construction of the contract was thus made to depend upon the lex loci contractus ; and without this pro- vision in the contract itself, there would be no doubt of the general principle, that the rights dependent upon nuptial contracts are to be determined by the lex loci. (Hub. de Conflict. Legum, lib. 3. <> 9.) The contract is set forth, at large, in the bill, and con- tains three important stipulations : 1 . The general declaration that there should be a community of property between the parties, according to the custom of Paris ; 2. The special exception as to part of the property, brought into common stock, and which exception declares, that of the goods of the parties, (4,000 livres,) there shall be placed in common, by each party, five hundred livres, and the residue, with whatever else shall be acquired thereafter, by succession, gift, legacy, or otherwise, shall be in severally, to that person to whom the same shall come or belong, and the respective representatives of that person, exclusively, in the line of representation of the person to whom the same shall come ; 3. A general donation to the survivor, in case either should die, without issue living. The parties mutually give, in the most available manner, to each other, and to the survivor, A'hich is in like manner mutually accepted, all the estate and property; movable and immovable, acquired or purchased, to them in any ways belonging, and which shall belong, in any way or manner, to that party who shall first die, and from the day of the decease of such party, and of whatever amount the same may be, and wherever situated, to be 165 1817. [*211 ] Rights depend- ent upon nuptial contracts are to be determined by the lex loci 211 CASES IN CHANCERY. 1817. enjoyed by the survivor as his or her several property exclu- v^,* s/-^_x sively, from the day of the decease of the party who shall DECOUCHE first die. The donation was not to take place, if, at the day SWETIER. f the decease of the party first dying, there should be chil- I" * 212 I dren *then living, born of the marriage ; but if, nevertheless, there should have been children, who afterwards should have died, or entered into religious profession before they had made a valid disposition of their rights, then the donation, of which the effect would have been thus suspended, will resume its force as though there had never been any children of the marriage. French ron- Notwithstanding the general declaration in the first part riag. r " f *he contract, that there should be a community of gopds between the parties, according to the custom of Paris, yet immediately after, there is a provision, that out of the 4,000 livres, mutually and equally advanced, there should be, by each party, 500 livres placed en communaute, and the residue should remain propre, according to the second stipulation which I have noted. To a person unacquainted with the provisions and terms of the French law, it would appear that the first clause was, in a great degree, repealed by the second. By the one, their goods were to be common, arid by the other, only one fourth part were to enter into community. But the contradiction is only apparent, and the subsequent intermediate stipulations in the contract form only a branch of this same peculiar socicte de liens qit'un homme et une femme contractcnt lors- gii'ils se marient. They may be considered as appurtenant to the ordinary convention of the community, according to the custom of Paris ; and their object was to withdraw a portion of the property from its destiny under the community, in order to make a certain provision, in the event of either party dying leaving children of the marriage. But the death of the husband, without lawful issue, rendered the special stipulations inapplicable and useless. There is to be no sub- tractions or deductions and divisions of property in this case, seeing that no issue survived. The term propre, when used in relation to matters in community, has a different meaning from that applied to it [*213] *when used in other matters of law. It is used for the separate property of the parties respectively, as contradis- tinguished from that which is placed in community, strictly so called. Parties often stipulate, in their contract of mar- riage, under the community system, that the residue of their property shall be separate. (Le surplus de leur biens scront proprc.} If it be personal property or movables, it is called propres conventionneJs, or propres Jictifs ; and the husband may alienate that property, during the coverture : it is, in 166 CASES IN CHANCERY. 213 many respects, confounded with the other goods, strictly in 18)7. community, and may be applied ad sustincnda onera matri- monii. (Pothier, Traite de la Communaute, n. 105.316 326. Argou, Just. torn. 2. p. 7784.) SATI%* The 3,000 livres were to remain, in this case, separate or propre. If alienated, they were to be replaced pursuant to custom. This stipulation in the contract, in respect to the restitution on the death of the husband, of the price of that kind of property alienated during the coverture, is well known, and appears, like the other special stipulations in this contract, to be almost a formula in the nuptial contracts creating the communaute de biens. But there appears to me (and which arises, no doubt, Donate mu from the imperfect knowledge which I have on this subject) to be still a contrariety between that part of the contract which declares that the propres conventionnels, or le surplus, should go aux leur de cote et ligne, and the mutual donation (donation mutuelle] at the conclusion, which gives all the property of the parties, (tons les biens, meubles et immeubles, acquetes, conquetes, propres, et mitres?) at the death of cither, to the survivor, in default of children living. I should have supposed, from the explanation given in the books, of the terms de cote et ligne, that the collateral heirs of the children dying without issue, and of the side and line of the parent first dying, would have taken that separate property, or propres fictifs de la communaute, *So I read Pot/tier and [ * 2 4 "] Argou. (Traite de la Com. No. 329. List, au Droit Fran. torn. 2. p. 78 82.) The donation mutuelle is, however, tu operate upon all the property, wherever situated, of which the party may die possessed, and the survivor takes it all, except in the single case of children living, or who may have disposed of the same. This sweeping clause is explicit and peremptory, and certainly controls the descent of the prop- erty to the collateral heirs of the children. Those donations frequently enter into the contract of marriage, and the parties can give to each other whatever property they shall possess at their decease : the French law recognizes such donations, and holds them valid and ir- revocable, without being accompanied with delivery or pos- session. (Argou, liv. 3. ch. 14. des donat. fait, par contrat de manage. Pothier, Trait des donat. entre vifs, sec. 2. art. 4. Code Civil, No. 1082, 1083. 1087.) This donation was in full operation at the death of the husband, in 1810; and the casus fcederis occurred, for he died without issue living of the marriage. His wife, as survivor, took all his personal property, under the donation, which embraced not only the property which originally en- tered into community, but that which was kept separate as 167 4 . CASES IN CHANCERY. 1817. propres conventionnels. It was a stipulation, as \ve have seen, which the parties were not only competent to make, but which seems to be familiar to the French law. The original f un( l which constituted the coumunaute, and the propres jictifs which were kept separate, formed, aggregately, the capital from which all the subsequent property was produced by the industry of the husband. The joint increase entered into the common stock of the communaute, by the general rule ; and had it not been so, this increase would have been reached by the universality of the donation. I conclude, that the plaintiffs are entitled, on the true construction and operation of the marriage contract, to all * 215 ] *the personal property belonging to C. J. F. when he died. But I give this opinion with distrust and diffidence, owing to a very imperfect acquaintance with the French law, and more especially with this curious and complicated branch of it; and I should not have hazarded any remarks on the sub- ject, if I had not felt myself urged by duty. Nor will it be improper to mention here, that an opinion of Count Real, on this very marriage contract, has, by the arrangement of the council, been submitted to my inspection ; and his able explanation of the French law I have found supported by the authorities referred to ; and it has much increased my confidence in the conclusion which has been drawn. With respect to the net produce, or increase, of that property, since the death of the intestate, the plaintiffs are entitled to it, also, after the reasonable charges are deducted. It was property held in trust for the widow, and for their benefit, as the legitimate cestuij gue trusts. This appears, also, to be the general doctrine in the books. Dig- 5. 3. 20. 3. Pothier, Traite du Droit de Propriete, n. 400 406. Hub. Pralec. lib. 5. tit. 3. de Hered. Pet. 14.) If the plaintiffs are entitled, under the marriage contract, as representatives of the surviving widow, to all the personal estate left by C. J. F., they are not barred from asserting the claim, by lapse of time. 2. The person, under the name of M. F., to whom letters of administration on his estate were granted, in June, 1810, succeeded to the possession of the property, not in her own right, but expressly as trustee for the party having right. That party was, in this case, the true and lawful widow of C. /. F. under the marriage contract, or that widow and the next of km, under our statute of distributions. She took the prop- erty into her hands as administratrix. This was a direct and express trust, and she could not have set up the statute of * 216 ] limitations, as a bar to the widow *and next of kin. It would be unjust for the person who takes possession of the property of the intestate, under the authority of law, quo 168 CASES IN CHANCERY. 216 administratrix, to be at liberty, after six years' possession, to 1817. set up the statute of limitations, as a bar to the cestuy que ^^~^~^_/ trusts. All the cases admit, that no time bars a direct trust, DECOUCHE as between trustee and cestuu que trust. The settled rule is, 11111 i c i 11 SAVETIER. (and so it was recently declared by the master 01 the rolls, No j , { in Cholmondeley v. Clinton, 2 Merivale, 360.) that so long as time is a bar to a trust subsists, the right of a cestuy que trust cannot be barred * s beTwewMhe by the length of time during which he has been out of pos- trustee ami ces- session, and that he can only be barred by barring and ex- iu y ( i ue trust - eluding the estate of the trustee. This general rule applies to this case ; for an administrator is a trustee for the party entitled by law. His very office is a trust, and he can take in no other capacity. Lord Hardwicke said, (2 Vesey, 482.) that executors and administrators were, to many purposes, considered, in chancery, as trustees. There is a class of cases which admit a reasonable time to be But where a a bar ; but these are cases in which a party is turned into a S^"sion la ^rf trustee by matter of evidence merely, and who took possession property m his originally in his own right, and was, prima facie, the owner. ^ a ^^. li ^ Thus, in Bonny v. Ridgard, (cited in 4 Bro. 130. 138, and in by matter of 17 Fesey, 97.) the fraudulent purchaser of a leasehold estate ^Smclion, r from an executor, was not permitted, by Lord Kenyon, to be changed into a turned into a trustee for the children of the testator, in con- ^"Time may P be sequence of the great lapse of time between the purchase pleaded in bar. and the filing of the bill. So, in the cases of Andrew v. Wrigley,a.ndBeckfordv. Wade, (4 Bro. 125. 17 Vesey, 87.) the suits were brought to disturb purchasers, on the ground of fraud, and to turn them into trustees, by construction ; and the Court held, that in these cases of a possible, eventual trust, depending upon proof, length of possession was, and ought to be, a bar, upon the principle of the statutes of lim- itations. But these cases have no relation to suits against *the very executor or administrator, by the next of kin, or [*217] other person entitled to the distribution of the assets. The executor, though he may plead the statute, as against a cred- itor, (Webster v. Webster, 10 Vesey, 93.) can never plead the statute of limitations as a bar to a legacy. ( Vide the cases in 1 Johns. Ch. Rep. 316.) Where even a trust estate is An execmoi created by will to pay debts, such a trust is held not to be Se^statotc C of within the statute of limitations. (Norton v. TurviU,^,P. limitation m bar Wins. 145.) The true ground of the equitable jurisdiction though he'mat over executors and administrators, in compelling the payment against a creu of legacies and distributive shares, is, that they "are trustees for those purposes. This is the declared doctrine in Farring- ton v. Knightly, and Wind v. Jekyl. (1 P. Wms. 249. 572.) The statute of distributions, say the books, was intended as the will of the intestate, and the succession to personal estate VOL. III. 22 169 217 CASES IN (JHANCEll\. 1817. is as much fixed as the title of the heir to the real estate at ^^~^~+^s common law ; and on the ground of the trust in the adminis- DKCOUCHE trator, chancery assumed the power of compelling distribu- SAVETIER ^ on as soon as the statute was passed. (Winckebteo v. An adnvinis- Nordoffe, 2 Rep. in Ch. 367. Matthews v. JSewby, 1 trator, being J^em. 133.) le^up'the^tat- I am not prepared to say that the statute of limitations ute of limita- might not be set up by the persons to whom the administra- th 48.) says, that the decisions there had formerly \-^-~v-^-x been fluctuating on the point, but that the latest cases had DECOUCHE made their own law of limitation the rule of their judgment ; SAVETIER an< ^ tn * s s ^ e ^ tne q uest i on ne considers to be founded on the better reason. Lord Kaimes, (Principles of Equity, vol. 2. p. 353.) speaks with peremptory decision, and says, "It ought never to be made a question ; for our own prescription must be the rule in every case that falls under it." The same rule is, also, declared, in equally explicit terms, by Voet, in his Commentaries on the Pandects. (Com. ad Pand. lib. 44. tit. 3. <> 12.) Si praseriptioni implendce. alia prcefinita sint tempora in loco domicilii actoris, alia in loco ubi reus domicilium fovet, spectandum videtur, tempus, quod' obtinet ex statuto loci, in quo reus commoratur. The counsel for the plaintiffs also referred to a passage in Pothicr, (Trait, de la Prescription, No. 251.) to show that the law of prescription, of the plaintiff's domicil, ought to govern ; but I apprehend that Pothier alludes only to the various and unequal periods of limitation prevailing in the different provinces of France, of which he gives examples in the section succeeding the one cited. He was not speak- ing of foreign rules of limitations, extra territorium. Pothicr has, again and again, recognized (Trait, des Ob. No. 642. 654. 684.) the distinction admitted in so many authorities., that a plea of the time of limitation does not extinguish the debt, but only bars the remedy. The French law of pre- scription, like ours, appears to be intended to apply to, and govern, directly and positively, all persons whomsoever, who cannot bring themselves within one of the exceptions. (Trait, de la Prescription, No. 247. Code Napoleon, No. 2251.) My opinion, accordingly, is, that the plaintiffs are entitled * 221 ] *to the whole of the property in question ; and that the proposition, on their part, to divide the property with the unfortunate children of C. J. F., who are defendants, is very beneficial to the latter, and ought to be accepted. 3. I am of opinion that the proposed compromise is, also, beneficial in another view of the case. The widow might have waived her rights under the mar- riage contract, and have sued for her moiety of the personal estate of her husband, under our statute of distributions. I see no impediment to her right of election. The contract was for her benefit ; and to waive it was yielding her title to the whole, and accepting of a part. It is said, (Inst. an droit Francois par Argou, torn. 2. p. 30.) that upon the dissolution of the community, by the death of the husband, the wife, or her heirs, may renounce or accept her rights under it. The representatives of the husband would surely be estopped, in J72 CASES IN CHANCERY. 22 i this case, from setting up the marriage contract as a bar to her claim to a distributive share. That contract was made and intended for the connubial state ; and to give it the due effect, the parties ought to have continued faithful to each other; instead of which, we find that the wife was deserted by the husband, in 1792, after he had formed an adulterous connection : his lawful wife was left without protection and support ; and, after a great number of years, she ended her life in an hospital. It is not for the representatives of such a husband to set up, in bar of a distributive share, under our statute, a marriage contract which he had thus violated and abandoned. If the widow might have waived her benefits under the contract, and have resorted to her title at law, her representatives, who have succeeded to her rights, are entitled to the same privilege. If the demand was now of a moiety of the personal estate, under the statute of distributions, there could be no bar to the claim, for we have already seen that the acZmVt- istfratfn'r, holding that moiety in trust, could not have *inter- [ * 222 ] posed that statute. If the statute runs at all in such a case, it can only commence from the time that the defendants succeeded to the property, under an assumed right, as owners by virtue of her will. It may be said here that the statute gives an action at law of debt, detinue, or account, to any person entitled to a dis- tributive share. This is a recent provision,f and was no t VM. i R. doubt intended for the ease and favor of the persons entitled ^} K 'l^ d 8 ^ to distributive shares. But I should apprehend it was not ck. 74. r. is. the intention of the legislature, by that favor, to abridge the j^ -f A} ' nL ' long-established remedy which legatees and the next of kin possessed in this Court. It could hardly have been intended, that executors and administrators might violate their trust, and appropriate the estate to themselves, if the legatees, or next of kin, had not made their demand within the short period of six years. Such a new and alarming relaxation of the powers of this Court over such trustees, is not to be pre- sumed, and could not have been intended. I admit the general principle., that if the equitable and legal titles so far correspond, that the only difference between them is, that the one must be enforced in equity, and the other at law, the equitable title must be acted upon in the same time that the legal should be, or it will be barred. But this rule is where there is no subsisting trust; and Lord Manners men- lions that circumstance, as forming an exception to the rule which he so emphatically lays down. (Medlicott v. O'Donel, 1 Ball and Beatty, 166.) Courts of equity are not within the words jf the statute of limitations : that statute is adopted and applied, by the discretion of this Court, to suits 173 222 CASES IN CHANCERY. 1L17. m equity? tnat are analogous to those in which it is applied v- ^- N/ ^_x at law. But it has been always the doctrine of the Court DECOCCHE that legacies are not within the statute of limitations. SAVETIFR (^orlctr v. Ash, 1 Vern. 256.) The same reason applies to distributive shares, and with equal force. They are [ * 2.J3 ] considered in, at least, as strong a *light as debts by spe- cialty, and are not barred, except under the same prescription, arising from lapse of time, that would bar a bond. Within that time, I should not be willing to protect an executor or administrator from the payment of a legacy or distributive share, when he admits the trusts and admits the assets, and sets up only the lapse of time. The demand is founded on documents partaking of the nature of a record, as the probate in the one case, and the inventory in the other. The principle on which the Court proceeded, in Pomfret v. Windsor) (2 Ves. 472.) was that the statute of limitations affords no protection to an adminis- trator against the party calling for his distributive share, though, no doubt, an administrator, as well as an executor, may plead the statute against a creditor of the estate, as was done in 3 Aik. 70. They are only responsible in the pecu- liar character of trustees, and to the extent of that character, in respect to legatees and the next of kin, and in some other special cases. If the plaintiffs, then, are entitled to claim the distributive share of the wife, they could recover interest upon it, at least after one year from the intestate's death, seeing that the assets were appropriated by the administratrix to the purposes of business, and yielded great profit. This recovery, however, would not exceed, and would probably fall short of, a moiety of the property now offered to be divided between the parties to this suit. But it is to be observed, that if the marriage contract is laid aside, the next of kin of C. J. F. would be entitled to the other moiety of his estate, which would sweep away the whole from these unfortunate children who are now before the Court. The terms of compromise are therefore beneficial, as well as fair, in this point of view, so that, quacunque via data, the terms ought to be accepted. I shall, therefore, declare, that it is for the interest of the [ * 224 ] infants that one equal moiety of the property in the *posses sion of the two defendants, who are executors and guardians, after deducting therefrom their reasonable expenses and costs. *n the defence of this suit, be paid to the plaintiffs, in full satisfaction of their claim, and that the residue of the costs be borne by the parties respectively. Order accordingly 174 CASES IN CHANCERY 224 1817, LlVINGSTCX B. LIVINGSTON against KANE and others. K/N* i creditor filed a bill to set aside, or to obtain relief against, a judgment confessed by his debtor in the Supreme Court, on the ground of fraud, and obtained an injunction to stay all proceedings on the judgment; and while the suit was pending in this Court, he proceeded at law, and recovered judgment against his debtor, and issued execution there- on, under which the property of the debtor was advertised for sale. The Court refused to dismiss the bill, on the petition of the defendants, but ordered the plaintiff to make his election, either to stay his execu- tion at law during the continuance of the injunction, or consent to have the injunction dissolved; and the plaintiff refusing to make an election, the injunction was forthwith dissolved. PETITION of the defendants, stating that the plaintiff, in December & behalf of himself, and such other creditors of the defendant James Kane as should come in and contribute to the expense of the suit, on the 27th of August last, filed his bill against the defendants, for relief, &c. That an injunction was, on the same day, issued, enjoining the defendants, (except J. 7T.) not to proceed to execution on a judgment mentioned in the said bill, against the estate of the said J. K., nor to a sale on any execution already issued. That all the defendants answer- ed the bill on the 20th of September ; but the plaintiff, not- withstanding the said suit and injunction, has prosecuted his suit at law in the Supreme Court against J. K., and is pro- ceeding, under an execution, to sell the real estate of J. K., and had advertised *it for sale in Albany, on the 31st of De- [ * 225 ccmber instant. The defendants prayed that the plaintiff might be compelled to elect to proceed in this Court, or in the Supreme Court, and that, in the mean time, all the pro- ceedings be stayed ; and that if the plaintiff should elect to proceed in this Court, that he be restrained from proceeding at law ; but if he should elect to proceed at law, or should not make his election within eight days, &c., that then the bill should be dismissed, with costs. It appeared from the pleadings in the cause here, that John Kane and James Kane were indebted to the plaintiff, by two several bonds, one dated the 27th of October, 1814, for 20,000 dollars, and the other for 15,600 dollars, dated the 1 1th of April, 1815, on which the plaintiff had commenced separate actions in the Supreme Court. That John and James K. had stopped payment, and were believed to be insolvent. That James K., on the 10th of May last, confessed a judg- ment in the Supreme Court, infavor'of the other defendants, Charles Kane, Oliver Kane, and Dirck Van Schelly ne, for 450,000 dollars, which judgment the plaintiff charged to be 175 225 CASES IN CHANCERY. fraudulent and void, inasmuch as it gave those defendants an unjust preference over the other lonafide creditors of James LIVINGSTON K., or if not void on that account, the judgment was for a KANE much larger sum than was really due to them, and was con fessed for the purpose of enabling them, at the sheriff's sale under an execution, to purchase, for a very inadequate con- sideration, all the real estate of James K., which was worth, in their estimation, more than 500,000 dollars ; and that the plaintiff believed that these defendants were not actual cred- itors of James K. at the time the judgment was confessed, but were only under some responsibilities for him, and that to an amount, far less than the judgment. The plaintiff prayed that the defendants (except James Jf.) might be decreed to enter satisfaction of the judgment, if it should appear to be [ * 226 ] fraudulent, and if not, that they might not be *permitted to recover on it more than what was really and fairly due to them, so as to make the least possible sacrifice of the real estate of James K., and also for an injunction, which was granted. The ansivers of the defendants stated, that the judgment against James K. was taken and entered up in good faith, and for bona fide debts and responsibilities ; that a small part of the consideration was for debts due to them in- dividually, and the greater part for and in behalf of cestuy que trusts, or creditors of James K., for whom they had be- come sureties. The supplemental bill of the plaintiff, filed the 24th of October last, stated, that the plaintiff had obtained and enter- ed up judgment in the Supreme Court on the two bonds of James Kane to him ; that he had issued executions on the judgments, and delivered the executions to the sheriff of Albany, who had levied on the real estate of James Kane, and advertised it for sale. An affidavit of the plaintiff was read, stating, that on the 18th of October last, John and James Kane agreed with the plaintiff that he might issue executions against their property, on the said judgments, and that under that agreement the executions were delivered to the sheriff of Albany. Henry, in support of the petition. He cited 1 liar. Pr. 261. Mitf. PL 200. Cooper's Eq. PL 276. 1 Vesey,jun. 591. 2 Turner, Ch. Pr. 615. R. Sedgwick, contra. He cited 3 P. Wms. 90. 2 Aik. 119. 1 Vesey,jun. 159. 2 Fern. 32. THE CHANCELLOR. This is not the ordinary case of an election. The plaintiff is not prosecuting the defendants here and at law, " for one and the same matter or demand," 176 CASES IN CHANCERY. according to the language of the books in such cases He has no suit at law existing against any of the *defend- ants, except James Kane ; and his counsel admit that his name is used in the suit in this Court, pro forma merely, and is willing to have it struck out of the record. The suit at law is a judgment against James Kane, for a debt not in dispute, and the plaintiff is endeavoring to raise the debt by execution. The object of the suit here is to set aside as fraudulent a prior judgment, which the defendants, as cred- itors of James Kane, have obtained against him. The integ- rity or validity of that prior judgment is not questioned in the plaintiff's suit at law ; nor does any proceeding under the plaintiff's judgment at law necessarily disturb it. But the hardship of the case consists in this, that the defend- ants are restrained by the plaintiff's suit here, and the injunc- tion which he has procured, from pursuing their execution on their judgment at law, while he is continuing his remedy there, and seeking advantages, by an intermediate sale of the debtor's property. If that property be personal, he gains, by the sale of it, a direct advantage over his rival creditors, whom he has, in the mean time, held fast by process from this Court. If the real estate be sold, he gains the legal title under his junior judgment, and will be enabled to take possession of the lands, and to enter upon the enjoyment of the rents and profits. Such advantages ought not to be o-ained by means of the process of this Court. The plaintiff ought to be content to let the defendants have an equal chance with him at law, or else to suspend his execution also, until the question of fraud, which has been raised by the bill, and denied by the answers, shall have been decided. I have no nesitation, therefore, in putting the plaintiff to his immediate election, either to stay his execution at law, or to have the injunction dissolved. But I do not perceive the necessity or the propriety of going further, until the cause has been brought to a hearing. I see no reason why the defendants should insist, also, upon the dismissal of the bill. The plaintiff is not trying *the va- [ * 228 ] lidity or consideration of their judgment, by any suit at law : he appears to me to have a right to continue his inquiry here until the cause shall have been brought to a regular decision. In Barker v. Ditmaresque, (2 Aik. 119.) Lord Hardwiclce distinguished that case from one to which the ordinary rule t o elect applied, and he allowed the plaintiff to proceed at law to judgment against the administrator for the debt, and, at the same time, to proceed in chancery for the discovery and account of assets. The principle on which the suit at law and the suit in equity, at the same time, for the same cause, is prohibited, is the " double vexation," as it is expressed in VOL. III. 23 177 <>23 CASES IN CHANCERY. 1S17. Lord Bacon's rules on this subject; and by one of Lord v^^-s^-^^ Clarendon' 's rules, a suit pending at law for the same mat LIVINGSTON ter, was a good plea in bar to the suit in chancery. So, KANE m ^'l cncr v - Reed, (1 Ball and Beatty, 318.) Lord Manners, in explaining the reason of the rule on Ifois subject, and which now requires an election instead of a ptea, observes, that " it would be utterly inconsistent with the ends of justice to permit a party to proceed in this Court, and at law, at the same time, for the same demand; for the jury may find a verdict one way, and the master make a report a different way, which would occasion such a clashing of jurisdiction as never could be endured." It is quite apparent, from this ex- planation and history of the rule, that the present case is not within it, to the extent of requiring the bill to be dismissed There is no " double vexation" by the continuance 'of the suit here. I shall do no more, therefore, under the present motion, than to call upon the plaintiff to elect and agree, forth- with, either to stay his execution at law during the continu- ance of the injunction, or that the injunction be dissolved. The question of costs upon this application, and all other questions, will be reserved until the hearing. The following rule was entered : " Ordered, that the plaintiff, by his counsel, forthwith elect and agree either to [ * 229 ] *stay his execution at law, in the said petition mentioned, during the continuance of the injunction heretofore issued in this cause, or that the said injunction be dissolved. And the said plaintiff, by his counsel, having declared before the chancellor, that he should not consent or elect to stay the execution at law : It is thereupon further ordered, that the said injunction be dissolved ; and the question of costs upon this application, and all other questions, are reserved until the hearing." 178 CASES IN CHANCERY. 229 1317. CUMBERLAND THE DUKE OF CUMBERLAND and others against COD- CODRIH'GTOH. RINGTON and others. [Referred to, 4 Johns. Ch. 139; 9 Paige 451, CGI.] Where a person takes a conveyance of land subject to a mortgage, cove- nanting to indemnify the grantor against the mortgage, and having paid off part of the encumbrance, dies intestate, the land is the prima- ry fund to be resorted to for payment of the residue, and the heir cannot throw the charge upon the personal representatives. if the purchaser has even rendered himself liable, at law, to the mort- gagee, or creditor, for the payment of the debt, this circumstance will not be sufficient to change the natural course of assets ; there must, also, be proof of strong and decided intention to subject the personal estate to the charge. By an express direction in his will, or by disposition, or language equiv- alent to an express direction, the purchaser may throw the charge upon his personal assets. if the purchaser, having subjected his personal estate to the charge, dies, and the land descends to his heir, who is, also, his personal represent- ative, although the personal funds of the ancestor, hi the hands of the heir, were liable for the debt, yet, on the death of the heir, his person- al assets are not the primary fund for payment. IN the beginning of the year 1791, Sir William Pulteney, December si. for himself, and for Wm. Hornby, and Patrick Colquhoun, purchased of Robert Morris, of Philadelphia, a large tract of land in this state, called, in the case made by consent of par- ties, the " Genesee Tract," in which Sir William was inter- ested in three fourths ; but as he and the other purchasers *were aliens, a conveyance was not made to them. After the [ * 230 sale, the proprietors of the tract duly appointed Charles Wil- liamson, a Scotchman, their agent, who removed to this coun- try, became naturalized, and procured from Morris and his wife an absolute conveyance of the tract to himself, in fee. Having thus obtained the legal title, Williamson entered into a variety of extensive speculations, both in relation to the Gcncsee Tract, and other objects, by which he became greatly involved in debt, and his drafts upon his employers, which they had, for several years, been in the habit of paying, in- creasing greatly in amount, they refused any longer to ac- cept his bills, and attempted to bring his agency to a final set- tlement, and to obtain a division, and conveyances of the land from him, as they were, at this time, enabled to hold real estate, by virtue of an act of the legislature of the 2d of April, 1793. This act, however, was limited, in its duration, to three years, and Williamson refused to convey their respec- tive proportions to the different proprietors, except on the payment, from each, of very large sums of money. To ob- tain a conveyance, and to prevent the land from being sold 179 230 CASES IN CHANCERY. 1817 ky the creditors of Williamson, on the judgments which thej would have obtained in the suits against him, Robert Troup, one of the defendants, who was employed by Sir W. as his agent in this transaction, induced Williamson to convey the CODRINGTON TT ^ ,. . , . . * lands to Sir W., for a nominal consideration, but upon cer- tain terms, by deeds, which were delivered as escrows, and persuaded Williamson's creditors to stay proceedings in their suits, until it could be known whether Sir W. would accede to those terms, which were, to pay Williamson a large sum for his services as agent, and to assume the payment of his debts, several of which were secured by mortgages on the premises conveyed. The deed of conveyance, immediately after the habendum, contained the following clauses : " Sub- ject, nevertheless, to the operation and charge of all mort- gages heretofore executed by the said C. Williamson, and now [ * 231 ] existing as liens on the said ^parcels, or tracts of land, and premises hereby granted and released, or any parts or part thereof. And upon the express condition, nevertheless, that the said Sir W. Pulteney, his heirs and assigns, shall ratify, confirm, and carry into effect, in like manner as the law would require the said C. Williamson and his heirs to do, in case this present grant and release were not made, all and each of the leases, contracts, agreements, or covenants, of whatso- ever nature, at any time, or times, heretofore made, or enter- ed into, by the said C. W., with any persons, or person, whomsoever, of or concerning the same parcels or tracts ot land and premises hereby granted and released, or intended to be granted and released, or any parts or part thereof." Sir W. accepted the terms which had been proposed, and accordingly, executed two indentures, bearing date, respec tively, the 23d of July, 1801, which were received by William son as a full compliance with the conditions of the escrow. By one of these indentures, Sir W. covenanted witt- Williamson, that he, Sir W., and his heirs, executors, arc- administrators, should, and would, from time to time, and *t all times thereafter, well, truly, and sufficiently indemm'v. and save harmless, the said Williamson, his heirs, &c., from all actions, &c., by reason or on account of two bonds and mortgages, dated, respectively, the 1st of December, 1796. executed by Williamson and Thomas Morris to Andrew Craigie, each conditioned for the payment of 25,000 pound. New-York currency, with interest, on or before the 8th of October, 1806 ; and from another bond and mortgage, dated the 2d of September, 1800, conditioned for the payment of 10,000 dollars, in three years from the date, with interest, executed by Williamson and Dudley Walsh to George Wray ; and on account of the balance due on another bond and mortgage, dated the 13th of January, 1796, executed by 180 CASES IN CHANCERY. Williamson to John Joy, for the payment of 30,000 dollars, 1817 with interest. *A settlement having thus been made with Williamson, he was suspended in his agency, to which the defendant Troup was duly appointed, by letter of attorney, and made several payments on account of the principal and interest due on the bonds and mortgages above mentioned ; one of those to Andrew Craigic, having been by him assigned to Bossinger Foster, and the other having been purchased by Sir W., in London, at a discount. In May, 1805, Sir W. died intestate, leaving a daughter, Henrietta Laura Pulteney, Countess of Bath, his only child, who succeeded to all his real property, us heiress at law, and took out administration, in Great llritain, on all her father's personal estate in that country. The countess had previously married with Sir James Pul- teney, one of the defendants in the original bill in this cause, but by the marriage contract, had reserved to herself the absolute control and disposal of the estates, real and personal, which she might acquire, with power to make a will. Troup was duly appointed by the countess her agent, and took out letters of administration on the personal property of Sir W., in this state. He also proceeded, with the approbation of the countess, to make payments on account of the before- mentioned bonds and mortgages, and entirely discharged those executed to Joy and Wray. Bossinger Foster, the assignee of one of the bonds and mortgages to Craigie, died some time in the year 1805 ; and in October of that year, a correspondence was commenced by the defendant Mary Foster, his widow and administratrix, with Troup, in relation to the payment of the interest due on the bond and mortgage assigned to her husband, which continued between Troup and Mrs. Foster's agent, until November, 1807, and resulted in an engagement by Troup, in the lifetime of the countess, in his character both of administrator and agent, to pay the principal and interest due on the bond and mortgage, out of the proceeds of the Pulteney estates, as fast as they should come *to his hands, f * 5!3 provided Mrs. Foster would forbear to prosecute for the recovery of the debt. With this engagement Mrs. Foster rested content, and did accordingly forbear to prosecute : but as she seemed to be greatly in want of the balance due to her, and the proceeds of the estate came in but slowly, Troup conceived that he would not be able eventually to pay the debt out of these proceeds, within the period that might be limited by Mrs. Foster's exigencies. Under this impression, in October and November, 1807, he wrote to the countess, requesting permission to draw bills upon her ; but these, and his subsequent communications on the subject, were not 181 233 CASES IN CHANCERY. answered by the countess, or her agent m England, as srtrf was, at the time, in an ill state of health, and incapable of ~?UMBERLAMD attending to business, and afterwards died, in July, 1808, ^ODRINGTON w 'thout issue, having made her will, by which she gave her personal estate to Sir Thomas Jones, (who was one of the defendants in the original bill, but is since deceased,) to the defendant Codrington, and another person, in trust, and appointed them her executors ; but the two former only undertook the execution of the will, and her real estate descended to Sir John Lowthcr Johnstonc, as her heir at law, who was plaintiff in the original bill, but is since deceased. In August, 1808, after the death of the countess, and before it was known to him, Troup procured his own notes for 30,000 dollars to be discounted at one of the banks in the city of New-York, and paid that amount on account of Mrs. Foster's, bond and mortgage, and for the payment of the residue, drew a bill, for 11,000 pounds sterling, upon the countess, in favor of H. Waddington, of London, one of the firm of J. Waddington and Co., of Neiv-York. The bill was confided to J. Waddington and Co., to be remitted by them to H. Waddington for acceptance and payment, under an agreement, that when it was paid in London, Mr. Troup should be at liberty to draw on H. Waddington for [ * 234 ] *the amount. On its arrival in London, the bill was neither accepted nor paid, owing to a dispute between the personal and real representatives of the countess, the former contending that the balance due on Mrs. Foster's bond and mortgage was payable out of the mortgaged premises ; and the latter, that it was a charge on the personal assets of the countess. The agency both of the real and personal estate was continued in Mr. Troup, by the respective representatives. In consequence of the death of Sir John Lowthcr Johm,toi:c, the original plaintiff, and two of the defendants, after pub- lication had passed, and before the cause was set down for hearing, the suit was abated ; and a bill of rcvivor was filed by the Duke of Cumberland, Earl Manners, Lord Allavay, and Masterton Ure, the present plaintiffs, who are the devisees of Sir J. L. Johnstone. Troup, by his answer to the bill of revivor, admitted that he had sufficient assets to pay the mortgage debt, should the Court decree it to be paid out of the personal estate. Harison and Hoffman, for the plaintiffs. It cannot be disputed, but that if the debt in question had been originally contracted by Sir W. P., or the countess, the real repre- sentatives would have been entitled to the relief which they now seek, unless a contrary inference could be deduced from the will of the countess ; but no such inference is in this case 182 CASES IN CHANCERY. 234 pretended. (QFonbL Tr. Eg. 290.) Nor is it contended, that 1817. they can transfer the burthen to the personal representatives, ^*^,s-^, unless circumstances can be shown to warrant the inference, CUMBERLAND that it was the intention of the original parties to make the CODRI GTOS debt their own. (2 Fonbl. Tr. Eq. 291.) The intention of the party from whom both the funds proceed, is the gov- erning principle. (Pockley v. Pockley, 1 Fern. 36.) If it were a debt of his own contracting, he must manifest his intention to exempt his personalty, the primary fund for payment : if it were *the debt of another, he must do some [ * 235 ] act evincing his design to regard it as his own, and disturb the natural course of the two species of assets ; otherwise, the heir who takes the estate, takes it with the burthen to which it was subjected. Upon these acknowledged prin- ciples, Courts of equity have uniformly proceeded, or pro- fessed to proceed ; and where an estate has been purchased subject to a mortgage, and the purchaser remains entirely passive, the land continues to be charged with the debt ; but neither the executor nor heir of the purchaser is liable for the satisfaction of it. Such, however, is not the present case, for Sir W. and the countess of Bath have not been wholly passive. The first circumstance which presents itself, as evidence of their intention in relation to this debt, is the covenant of indemnity executed by Sir W. to Williamson ; a circum- stance, however, which is admitted not to be, of itself, sufficient to shift the burthen from the land ; and such has been the determination in a variety of cases. (Evelyn v. Evelyn, 2 P. Wms. 591. Tweddett v. Tweddell, 2 Bro. Ch. Cas. 152.) All these cases, however, presume a volun- tary purchase of property, supposed to be equal, and more than equal to the debt, and, in England, producing rents or income more than adequate to the growing interest. In this instance, Sir W. was compelled to assume the payment of the debt, without any calculation that the land was an adequate fund for the purpose, in order to obtain the land ; and it was natural for him and his agent to conclude that he was substituted in the place of Williamson, and was thence- forward to be regarded, not as a surety, but as the principal in the transaction. It is not asserted that an erroneous conclusion as to a legal point, is binding upon the party ; but it is conceived, that where his situation is to depend upon his own intention, the way in which he himself must have viewed that situation, is irrefragable proof of his in- tention : such was the decision in Pockley *v. Pockley, [ * 236 ] which has been a leading case on the subject. There, the testator, by his will, considered the debt as his own, and 133 236 CASES IN CHANCERY. having so considered it, the law inferred that his personal estate was the proper fund for its discharge. That Sir Wm, CUMBERLANE did assume the mortgages mentioned in the condition of the escrow 3 i g apparent, from the large payments which were made by his agent, without compulsion, out of his personal estate, on account of those debts. If this case stood alone upon the circumstances which took place in the lifetime of Sir W., it will be found as strong as that of Belvedej-e v. .RocA/brt, (6 />Vo. P. C. 520.) which, though it may seem to have been shaken by subse- quent decisions, yet is in perfect harmony with Parsons v. Freeman, (Amb. 115. 5. C. 2 jP. fFwzs. 664. n.) where the deed of purchase contained a clause, " that the principal money, with the interest thereof, from a certain day, was to be paid and discharged by the purchaser, out of the consid- eration money in the deed expressed." Equivalent, and more than equivalent, to that clause, is Sir Wm.'s acceptance of the escrow, and, consequently, of the conditions on which the estate was to vest ; and this must be deemed an express agreement to make the debt in question his own. After the death of Sir JF., Mr. Troup, who administered on his personal property in this country, fully discharged two of the boids and moitgages, and paid the interest accruing on jFWer's mortgage ; nor were any objections made on the part of the countess, who allowed his accounts in which these payments were charged. Nay, more ; in her corre- spondence with him, she refers to future payments to be made, " according to the arrangement with Williamson" and inquires, if he can furnish funds in America, to the amount, or how much must be drawn from England ; and neither she, nor her agent, in their correspondence, intimates that the [ * 237 ] land would be resorted to as the source *from whence the debt was to be satisfied. Mr. Troup, too, engaged to Mrs. Foster, to discharge the debt in question out of the personal estate, as fast as it came to his hands, either in the course of his administration or of his agency for the countess. He has, therefore, plainly assumed the debt on her behalf, and designated the very fund out of which it was to be paid. In consequence of this engagement, he obtained forbearance from the creditor ; but the personal property here was in- sufficient to meet the demand : he, therefore, borrowed money from the bank, and drew bills upon the countess a measure which he was well authorized in taking, by the knowledge that he had of the intention of the countess and her father ; though it is not pretended that it would alone be sufficient to change or affect the rights of the parties. Upon the whole, they contended, that from the acts of Sif 184 " CASES IN CHANCERY. . 237 W. P. and the Countess of Bath, it must be necessarily jg| - ( inferred, that they meant to make this mortgage a debt of <^r~v*^s their own. If so, the representatives of the real estate are CUMBERLAND entitled to the relief sought by the bill. (Woods v. Hun- f 1 O T7 10rt\ V tingford, 3 Ves. 130.) T. A. Emmet and Wefts, contra. Had Sir Af. P., in- stead of acquiring an estate subject to a mortgage, himself been the original mortgagor, and died, as he did, intestate, it is not to be doubted but that, according to the law of England, his personal estate, that being the fund primarily liable for the payment of debts, would have been held to satisfy the mortgage in ease of the heir. Nor is it denied that such is the law of this state : it has been so long and so well settled in England, that it must be regarded as adopted by us, and ingrafted in our own jurisprudence. This, however, is obvious, that the rule is founded upon principles foreign from the nature and genius of our govern- ment. Its origin may readily be traced to that policy, which, by giving the preeminence *to real property, seeks to cherish [ * 238 ] the landed aristocracy of the country a policy natural and proper under a system of government like that of Great /Britain, but directly hostile to the spirit of our own. These considerations, though they will not, perhaps, authorize the Court to break through what has hitherto been considered the law both of this country and of England, cannot fail to manifest the impropriety of extending a rule, which owes its observance with us to the mere weight of authority, and not to the intrinsic principles of natural justice, or the peculiar nature of our political institutions. The Court will, there- fore, not be disposed to extend its favor to the heir at law, any further than it will be compelled by decisions which it may deem obligatory. As the mortgage in question was not originally executed by Sir W. to secure a debt of his own, the case does not fall within the rule referred ta, which only applies to the debts of the ancestor himself, from whom both the funds are derived. The rule in England, applicable to cases like the present, is, that the personal estate of a stranger to an encumbrance on the property which he acquires subject to that encumbrance, is not liable for its exoneration, unless he has adopted the debt, and made it his own ; " the same," says Lord Ahanley, in Woods v. Huntingford , (3 Ves. 131.) "as if he was the original mortgagor." This adoption must be certain and anequivocal ; for, as Lord Alvanhy observes in the same case, the Court has been extremely " anxious not to make that inference, unless where it is perfectly clear and obvious." If so much caution be expressed in an English tribunal, VOL. III. 24 185 CASES IN CHANCERY. 1817. where the doctrine of exoneration is avowedly founded on V^X-N^ ^^ the principle, that " in questions between heir and executor, CUMBERLAND the heir and real estate are favored," per Lord Hardivicke CODRINGTON. m Parsons v. Freeman, (Amb. 115.) how much should that I * 239 ] caution be increased, in the tribunals of a country, the *laws and political institutions of which, so far from cherishing this principle, are directly opposed to it ! In this cause, two questions present themselves : 1 . Did Sir W. P. make the mortgage debt in controversy his own personal debt? 2. Was this done by the Countess of Bath. after his decease ? Unless the one or the other of them did it, the relief prayed for cannot be obtained. A purchaser of a mortgaged estate may. undoubtedly, make himself, or his personal funds, liable for payment ; but this is a question of intention, and, according to the emphatic language of Lord Thurlow, there ought to be " a demonstration of such inten- tion." (Billinghurst v. Walker, 2 Bro. Ch. Cas. 608.) It may not be easy to deduce, from the variety of decisions on the subject, a fixed, invariable criterion of intention; yet it is suggested, with confidence, that to constitute an adoption, the purchaser must render himself responsible, at law, to the mortgagee, to pay the debt ; or must expressly recognize it in his will, treating it as his own, and directing its payment, in like manner with his other debts. The covenant of in- demnity executed by Sir W., on which, taken singly, the op- posite counsel do not seem much to rely, connected with auxiliary circumstances, has been urged by them as proof of an adoption ; but their conclusions are not borne out by the facts, and the facts show that the real property was con- sidered, by Sir W. and his daughter, as' the primary fund out of which payments were to be made, and that, subsequent to the conveyance from Williamson, during all their lifetime, whatever payments were made on account of the mortgages, were made, it is true, out of the personal estate, but that personal estate consisted of the avails of the land. The very form of the covenant of indemnity argues strong- ly, that it was not the intention of Sir W. to make the mort- gage debts his own. Had he intended more, less equivocal [ * 240 ] marks of his intention would have been exhibited. *Such a covenant does not amount to an assumption of the debt ; the whole current of authorities shows, that even an express covenant with the vendor, by a person purchasing land sub- ject to a mortgage, to pay off the encumbrance, is not effect- ual to charge his personalty ; and there are many cases to prove, that even a covenant subsequently entered into with the mortgagee or his assignee, can have no higher efficacy (Evelyn v. Evelyn, 2 P. Wins. 664. and note. ibid. Bil Kntrhurst \. Walker, 2 Bro. Ch. Cas. 604. Tankervilh \ 186 CASES IN CHANCERY. 240 Faivcet, Id. 57. Clinton v. Hooper, 3 Bro. Ch. Cos. 211. 1817 Butler v. Butler, 5 Vesey, 534.) Butler v. Butler wiil oe ^^-^.^.^ found to be a very strong case to this point. CUMBERLAND The authorities are conclusive to show that neither pay- COOKING-FOX. ment of a part of the principal, or of the interest, is an adoption of the debt, notwithstanding a covenant to pay ; whereas here, there is only a covenant of indemnity. In Perhyns v. Bayntun, (2 P. Wms. 664. n.) there was a pay- ment of part of the principal. In Shafto v. Shafto, (Ibid.} the interest was paid. In Bittinghurst v. Walker, (2 Bro. Ch Cos. 604.) a case precisely resembling the present, one debt was paid off, and the interest of the other. Matthew- son v. Hardiviclce (2 P. Wms. 665. n.) is still stronger, for the devisee of lands charged with debts and legacies, paid them all off, except a legacy for which he gave his note ; yet Lord Ahanley held, that this only made the personal estate a collateral fund. So, again, in Basset v. Percival, (2 P. Wms. 664. n.) where the heirs gave a bond for the debt of the testator, Lord Kenyon, master of the rolls, determined that the real estate was the original debtor. Yet, in the two last cases, the devisee in the one, and the heirs in the other, had made themselves personally responsible at law. Pockley v. Pockley, (1 Vern. 36.) cited on the other side, is inapplicable to the present question, for there the testator, by will, expressly appointed the debt to be paid *out of his f *2 personal estate ; and that was the ground of the decision. The owner of real estate subject to a mortgage, may satisfy it, either from his personal property, or out of the real estate itself, 'from the rents and profits, or by sales. Being the owner of both funds, he can, during his lifetime, apply which he pleases to the discharge of the debt, and has power to direct which should, after his death, be appropriated to that purpose. Had the testator, in his will, said nothing about the mortgage, it is clear that the heir must have taken the land cum onere, and that the personal estate could never have been applied to his relief. But he chose that the suc- cessor to his real property should have it free from the debt with which it was charged, and he, therefore, directed his executors to do what he might himself have done, that is, to pay off the encumbrance from his personal estate. In Parsons v. Freeman, (Ambl. 115.) referred to by the opposite counsel, although it is very open to criticism, yet Lord Hard- tvicke places his decision on the ground that the purchaser had covenanted to pay the mortgage ; he had not merely covenanted to indemnify ; it is, therefore, not analogous; be- sides, it will not be easy to reconcile it with prior and subse- quent cases, in all of which, and some of them, too, were de- cisions of Lord Hardivicke h'mself, although a covenant had 187 .Ml CASES IN CHANCERY. 1817 keen given to pay off the encumbrance,- it was yet he.id thai ^r~~^~+^ the land was the primary fund, and that the purchaser had CUMBERLAND not made the debt his own. (Evelyn v. Evelyn, 2 P. Wins. 659. Leman v. Newnham, 1 Vesey, 51 . Lacam v. Merlins, Id. *' 312. Lewis v. Nangle, Ambl 150. A C. 2 P. Wms. 664. n. Forrester v. Leigh, Ambl. 175. S. C. 2 P. Wms. 664. n. Ancaster v. Mayer, 1 5ro. CA. Cos. 454. Shafto v. Shafto. Basset v. PercivaL Matthewson v. Hardwicke, 2 P. Wfos. 664. n. Billinghurst v. fFa/frer, 2 J5ro. Cft. Cos. 604. .Bwf- /r v. Butler, 5 Vesty, 534. Tweddell v. Tweddell, 2 f?ro. CVL COT. 101.) [ * 242 ] The case of Belvedere v. Rochfort, (6 #ro. P. C. 520. *2d ed. by Tomlins, vol. 5. p. 299.) so far from militating against the principles contended for on the part of the defendants, assumes them throughout as settled law, and proceeds on the ground that a legal liability to pay the mortgage debt had been created by the purchaser : it is in the application of those principles that its correctness may be questioned. But that case, were it uncontradicted by later decisions, ought rather to be regarded as standing on its own particular cir- cumstances, than as forming a general rule. It presented an instance of persevering oppression and injustice, at which our feelings revolt, and was peculiarly calculated to awaken, in the minds of those who determined it, sympathies too powerful to be repressed, by a cold and rigid rule of law, had such stood in the way. One can scarcely imagine a case abounding with stronger temptations to pass the limits of strict judicial right, in order to attain substantial justice. When a case precisely similar again occurs, which, it is to be hoped, for the honor of our nature, never will, then it may be resorted to as a precedent. It is sufficient, for the present purpose, to say, that if there be any thing in that decision hostile to the arguments advanced for the plaintiffs, it was expressly overruled by Lord Thurlow, in Tweddell v. Twed- dell, which has ever since been considered, in England, the standard authority on the subject, and is uniformly recognized as such by all the subsequent decisions. (Billinghurst v. Walker, 2 Bro. Ch. Cos. 604. Woods v. Hunting ford, 3 F'esey, 128. Butler v. Butler, 5 Vesey, 534.) If there were no act on the part of Sir W. which amount- ed to an adoption of the debt, still less has the countess indi- cated that intention. The proceedings of Mr. Troup, in paying off the debts from the money arising from sales of the land, were, no doubt, approved of by her, for such had been the course sanctioned by her father, and which she had intimated her design to pursue. This was no evidence of a [ * 243 ] determination to resort to her *personal fund, for the discharge of the mortgage. She had succeeded alike to her father's 188 CASES IN CHANCERY. 21' real and personal property, and might appropriate which she 1817. pleased to the purpose. As to the payments which have \^*^/-~ *^ been made, they cannot be recalled, and so far the heir is en- CUMBERLANE titled to the benefit of them ; but they confer no right to call CODKIN'CTOK for a continuance of them, or an extinguishment of the bal- ance out of the personal estate. This point is established by the cases already referred to. The correspondence between the countess and her agent certainly denotes no intention to assume any liability ; or, if it can be so construed, it was founded on a misapprehension of Sir W?s engagement, and, having never been carried into effect, can in no way vary the rights of the present parties. The engagement by Mr. Troup to Mrs. Foster, to pay the principal and interest of the bond and mortgage which she held, out of the proceeds of the Pulteney estates, as fast as they should come to his hands, on condition of forbearance to prosecute, has been adduced as evidence of adoption. If this agreement were, in other respects, valid, still it is too vague and uncertain to be operative. It neither appears how, or for what time, Mrs. Foster was to forbear to prosecute. But the engagement is substantially bad. There is no ev- idence that Mr. Troup had authority to render the countess personally liable. He had no power as agent ; and as ad- ministrator, he could not subject the personal estate in his hands to the payment of a debt for which the intestate had never made himself personally responsible. Unless this was originally the debt of Sir fF., no engagement by Mr. Troup, as his administrator, could have any effect ; and that it was not his debt has already been shown. Supposing Mr. Troup to have had authority to make the engagement, as agent for the countess, it was then a promise that she should pay the debt of another, for which a certain real estate was pledged as collateral security. To make it obligatory on the principal, *a precise and specific agreement in writing became neces- [ * 244 j sary, which should distinctly express the terms of the contract, and the consideration on which it was founded. (JVain v. Walters, 5 East's Hep. 10. Sears v. Brink, 3 Johns. Rep. 214.) Besides, no contract, however formal, founded upon forbearance to prosecute, could be binding on the countess, unless, as the heiress of Sir W., she had been liable for the payment of the debt, at law. To make the promise of an heir good, in consideration of forbearance, the heir must be liable at law to pay the debt. {Barber v. Fox, 2 Sound. 136.) Hence, whether Mr. Troup be regarded as agent or admin- istrator, he had no power to make the contract ; or, if he had, that power has not been legally executed. In respect of the money borrowed, and the bills drawn by Mr. Troup, those offered no indication of an intention in the 189 244 CASES IN CHANCERY. 1817. countess to charge herself with the debt. The right to v^^-^-^^ make the loan is not now in controversy ; and althc ugh the CUMBERLAND drawing the bill might well be justified by the high confidence CODKINGTON deservedly reposed in Mr. Troup, by his principal, yet it was, strictly and legally, an unauthorized act, as is evident from his own letters to the countess and her agent in England; and the cautious and guarded manner in which he proceeded, instead of selling the bill, and at once receiving the amount, shows that he himself viewed it in no other light than as an experiment. The act of aa agent wholly unauthorized, like this, can impose no responsibility on the principal. There is one general answer which may be given to the various acts, whether taken individually or collectively, that have been urged as proofs of adoption, and which, if the principle contended for, on the part of the defendants, be correct, is decisive of the question. It is this, that those acts do not constitute an adoption of the mortgage debt, either by Sir W. or the countess, because they gave no right [ * 245 J of action at law against either, and because Sir W., *who died intestate, could not, by will, have recognized and di- rected the payment of it ; and this could not have been done by the countess, whose will, executed before the death of her father, is necessarily silent on the subject. To constitute an adoption, there must have been a direct liability at law to pay the debt to the mortgagee or the holder of the mortgage. This principle is distinctly laid down by Lord Thurloiv, in Tweddell v. Tweddell, and was the foundation of his decision. " It is a clear rule," says he, " that the personal estate is never charged in equity, when it is not at law ; and if not charge- able at law, there is no principle or case in this Court to warrant its being chargeable in equity, contrary to the order of the law." It is this legal liability that alone gives a Court of equity the right of marshalling assets. " The rule of marshalling assets," says his lordship, in the same case, " is, that it must be a debt affecting both the real and personal estate." If the personal estate were not liable at law, how can a Court of equity throw a charge upon it ? Whence is such a power derived ? Unless there was a liability at law. the debt is clearly not the debt of the person owing the estate, but of another ; and the statute of frauds declares that no man shall be answerable for the debt of another, unless by an agreement or note in writing, and duly signed. How, then, can a Court of equity, where no fraud is pre- tended, burden one man with the debt of another, when he has contracted no legal obligation, executed no agreement, note, or memorandum in writing, in defiance of the statute upon uncertain, vague, and equivocal acts, obnoxious to misconstruction and misrepresentation, and precisely those 190 CASES IN CHANCERY. 213 jvhich the statute was designed to invalidate? The rule 1817. contended for is a safe and salutary one ; it tends to that v^x~s/-.^> certainty which is the great object of law, and affords a CUMBERLAND definite guide to ascertain the intention of a party. Many CoDR1 N KGTOX of the cases cited show that even a legal liability to pay the debt of another, will not, of itself, make it *the party's own, [ * 246 ] and subject his personal estate to the payment of it, in the first instance, unless it was coupled with an intention, that such should be the consequence : yet it is evident, that if that intention cannot exist without the liability, there is, at least, one ingredient which becomes indispensable to form an adoption ; and thus we obtain a standard to ascertain the intention, which otherwise would be left in utter uncertainty, ;md dependent on no one fixed or settled principle whatever. The necessity of a legal liability is, in pursuance of the doctrine in Tweddett v. Twedddt, recognized in the subse- quent cases. ( Woods v. Huntingford, 3 Ves. 127. Butler v. Butler, 5 Ves. 539. Waring*. Ward, 1 Vcs. 332. The Earl of Oxford v. Lord Rodney, 14 Ves. 417.) Harison and Hoffman, in reply. The counsel for the defendants, admitting the rule of law, both in England and this country, to be, that the personal estate is the primary fund for payment of debts, yet, by attributing that rule to a disposition to cherish a landed aristocracy, and by holding it up as inconsistent with the intrinsic principles of natural justice and the spirit of our political institutions, have en- deavored to induce the Court to view the principle with a jealous eye, and to extend it no farther than it might feel itself bound by decisions which it considered as obligatory. In reply to these observations, it may be answered, that the principle does not owe its origin to the cause assigned, for it applies to land in gavelkind, as well as to other species of real property. It formed part of the law of England, on the 19th of April, 1775, and consequently remained a part of the law of this state. It has been well settled, by a series of decisions in England; and the decisions of the English Courts, until the period of our revolution, upon every Dart of the law applicable to our situation, became as binding upon us as upon those Courts themselves. *But their sub- * 24** j sequent decisions are not, intrinsically, of any binding authority. If they are wholly independent of, or vary from, anterior decisions ; if founded upon statutes which we do not acknowledge, or which differ from our own, they are not entitled to the slightest consideration. Our Courts are not to follow them through all their turns and windings, but must adhere to the legal maxims in existence whe i our revolution took place ; and the only use that can properly 191 247 CASES IN CHANCERY. 1817. ke m& de of late adjudications, is to admit and follow thorn, s^rf^-x"-^/ when they are the deductions of right reason from pre- CuMBERLAM) established principles. CODKINGTON Had the mortgage in question been originally the debt ol Sir W. or the Countess of Bath, it follows, of course, that the Court would direct it to be paid out of their personal estate ; but it is distinctly admitted, that it was not, originally, the debt of either of them, and that, in consequence of certain artificial reasoning, so subtle as almost to escape the notice of the understanding, a distinction has prevailed between a debt of that description and one which the party himself created. That the heir or devisee of real estate charged with a debt of the former kind, may have the aid of the personal property for his exoneration, it is necessary that what was not the child of the party by nature, and at its birth, should become so by adoption. In other wordsj he should manifest an in tention to make the debt his own ; and such is the language of Lord Thurloiv, in 2 Bro. Ch. Cos. 60S. The counsel for the defendants do not, indeed, openly deny this doctrine ; but then they contend for some invariable criterion of in- tention, and have taken upon themselves to fix that criterion. Had a rule existed like that which they lay down, it is truly extraordinary that those very accurate writers, Fonblanque, and Coxe, should not have known it. They say, that the purchaser should appear to have intended to make the debt his own, and they mention certain circumstances as not alone [ * 248 ] sufficient to manifest such intention, but they *no where assert that the infallible criterion of intention was to be sought only in the circumstances to which the counsel for the defendants have referred. Why should those circumstances exclude all other evidence of intention ? But unless they do, the rule contended for on the opposite side must be too narrow, and is too weak a foundation to support the structure that has been raised upon it. Let us suppose that the purchaser, having a sum of money in the hands of his steward, should give him a precise order to discharge the mortgage with it; can it be doubled that, if the purchaser were to die suddenly after giving the order, this would be a sufficient demonstration of his intention to make the debt his own, and to pay it out of the personal estate ? Yet the creditor might be no party to the order, ami consequently have acquired no other right of action than what he previously possessed, that is, the right of suing by actionof ejectment, or by bill in equity. Again; letussuppose that the purchaser should execute a deed to a younger son, or to a collateral relation, reciting that he had made the pur- chase subject to a mortgage, which, nevertheless, he considered as his own debt, and meant to discharge it out of his personal 19'2 CASES IN CHANCERY. 24b estate; can there be a doubt of this being a sufficient dem- 1817. onstration to adopt the debt, although there was no covenant with the creditor to pay the money, or with the grantee to disencumber the property ? Certainly, these acts would be CODRINGTOM. far more clear and decisive than any thing in Parsons v. Freeman, or Lord Belvedere v. Rochfort ; yet they are acts falling within neither branch of the rule proposed by the opposite counsel. So far from recognizing the doctrine of an invariable test, the master of the rolls, in Woods v. Huntingford, (3 Ves. 132.) speaking on this subject, says, " It is very unpleasant for a judge, where an inference is to be drawn from equivocal acts, and the facts upon which the decision turns are distin- guished by such nice lines." And after ^mentioning some [ * 249 ] of the particular circumstances of the case, he adds, " I cannot collect that Lord Thurlow said, a man cannot make a. debt his own without an express declaration." Hence it appears, that if there be no express declaration, the intention to adopt may be inferred, if a fair examination of circum- stances will justify the inference. It is true, that a mere covenant or bond of indemnity, ex- ecuted by the purchaser to the original mortgagor, has been held, whimsically enough, not to be, in itself, a sufficient in- dication of intention to adopt the debt ; whimsically, because, in reality, where the purchaser executes such an instrument, ho makes his personal estate, though circuitously, yet in every Court, liable for the debt. It is not necessary that the real estate should be at all resorted to. A recovery being had against the original debtor, he can immediately recover over from the purchaser, who must pay the amount, without refer- ence to the value of the mortgaged premises. If, then, this were a new point, it would be most consonant to reason to hold that a bond or covenant of indemnity was itself an adop- tion ; and though, from the weight of authorities, this circum- stance cannot alone be relied upon as evidence of intention, yet it may well be used to fortify others of greater impor- tance ; and Lord Alvanhy, in Butler v. Butler, (5 Ves. 538.) intimates, that " if it was a new case, and he was called upon to decide the point for the first time, he might have been of another opinion." The facts in the present case, although some of them, singly, may possess little weight, yet when taken collectively, they are sufficient to carry conviction. Juncta valent. Thus Lord Cowper, in Flowyer v. Livings- ton, (1 -P. Wms. 272.) observes, " that where several circum- stances concurred, which, though each of them singly might not be of force to bar the redemption, yet all of them, jointly together, were strong enough to prevail over it." *As to the several cases anterior to our revolution, relating [*250 ] VOL III. 25 193 250 CASES IN CHANCERY. 1817 * ^is subject, none of them affect or overrule the decision ^r-^~-+*_s of Lo"d flardivicke in Parsons v. Freeman, which has been CUMBKRLAND so much criticised by the opposite counsel, and which if it CODRIWGTON be law, it is hardly possible to say, that even upon the origi- nal agreement, Sir W. F.'s personal estate did not become the primary fund for the payment of this debt: that case shows, too, that Lord Hardwicke considered neither a liability at law, nor a declaration by will, as essential to the demonstra- tion of the purchaser's intention. As to the decisions subse- quent to the year 1775, it is sufficient to say, that if they vary from the law as previously established, they are of no authority. Belvedere v. Rochfort was a decision before our revolution, made in the last resort, by the highest tribunal in the British empire, and must be regarded as law in this coun- try. It is true that Lord Thurlow has expressed a dissatis- faction with it, and has endeavored, as far as he could, to over- rule it. But it is difficult to perceive how his lordship, sitting as judge in an inferior tribunal, could overrule the decision of a superior Court. The case before the Court contains at least as strong, if not stronger circumstances, demonstrating the intention to adopt the debt, than any in that case. It is a known rule, which has a bearing upon the question, that where the real estate has once sustained the charge, it is not to be a second time burthened. (1 Salic. 153. 1 P. Wms. 518.) The real estate in this case has borne the charge ; for it is from the proceeds of it that payments have been made. All the reasoning of the opposite counsel, founded upon the statute of frauds, is inapplicable and falla- cious. It may have been introduced ad captandum, but can- not seriously be relied upon. December 31. The cause having stood over for consideration, the follow- ing opinion was, this day, delivered by the Court. [ * 251 ] *THE CHANCELLOR. The question in this case, between the heir at law and the personal representatives of the Coun- tess of Bath, is, which of them shall pay a certain mort- gage debt. Charles Williamson, in 1801, had in himself the legal title to the part then remaining unsold of what is called, in the case, the " Genesee Tract," and he held it as a trustee foi Sir William Pulteney. It had become expedient that Sir fV. P. should be invested with the legal title, but Williamson re- fused to convey, except upon certain terms. The terms were, that Sir W. P. should pay him a large sum of money, as a remuneration of his services as agent, and should assume the payment of certain debts against Williamson, and the mortgage debt in question was one of them. This debt arose on the purchase of lands lying west of the Gencse.e river, 194 CASES IN CHANCERY. 251 from Andrew Craigie, in 1796, and the bond and mortgage 1817. were given by Williamson to Craigie, to secure part of the V^~N/~>^ purchase money. The equity of redemption which William- CUMBERLAND son had in the mortgaged lands, was conveyed along with the other lands to- Sir W. P., who had complied with the terms of settlement proposed by Williamson by the execution of two cer- tain indentures. Those indentures specify precisely the man- ner in which the mortgage debt was assumed, and we have no evidence of any other agreement. By one of the indentures, Sir W. P. covenanted with W. to indemnify and save him and his heirs, executors, &c., harmless from all suits and demands, by reason of the bond and mortgage. After this settlement, Mr. Troup succeeded as agent for Sir W. P. in respect to his American estates, and with competent powers to manage them, and in the lifetime of Sir W. P., the agent paid a large arrearage of interest on the bond and mortgage, and no objection was made to the payment. Sir W. P. died intestate ; and the first and leading point in the case is, whether Sir W., by any or all of the above *facts and circumstances, made the mortgage debt his own, [ * 252 ] so far as to render his personal estate, in the hands of his personal representative, chargeable, as the primary fund to be applied to the payment of that debt, in exoneration of the land. The rule appears to be, that, as between the representa- As between lives of the real and personal estates of Sir W. P., the land IjTCs^f^reai is the primary fund, and is to be first applied; and the per- and personal es- l / , . j , . r tale,- the land sonal estate is only to be resorted to as auxiliary. i s tne primary I think it can be easily shown, that this is now the settled fund to pay otf English rule of equity upon such a state of facts. In Shafto v. Shafto, (note 1 to 2 P. Wms. 664.) which was decided by Lord Thurlow, in 1786, the devisee of land subject to a mortgage executed by the testator, covenanted with the ou-ner of the mortgage, that the estate should re- main a security for the debt and interest, with an additional one per cent, of interest. The question was, whether the personal estate of the devisee, who had died in the mean- time, should not pay the debt and interest, or, at least, the arrears of interest, with the additional one per cent. But the lord chancellor was clearly of opinion, that the person- al estate ought not to discharge the mortgage, for the land was the primary fund, and that the interest must follow the nature of the principal, and that the contract for the ad- ditional interest was, also, in the nature of a real charge. Lord Kenyan, as master of the rolls, laid down the same rule, about the same time, in the case of Tankerville v. Fawcct. (2 Bro. 57.) He there declared, that "where an estate 195 CASES IN CHANCERY. 18L7. descends, or comes to one, subject to a mortgage, although *^^^s- ^^ the mortgage be afterwards assigned, and the party enters CUMBERLAND into a covenant to pay the money borrowed, yet that shall not kind ms personal estate." In that case, the devisee of land having, voluntarily, and very honorably, charged a simple contract debt of the testator upon the land devised, and died, \ * 253 ] the question was, whether his personal *estate should exon- erate his real, of this debt. It was held not to be the proper debt of the devisee, and that his personal estate was not to oe charged. Both these cases contain much stronger acts of the substi- tuted debtor than the oiie before me. But in Tweddzll v. Tweddell, (2 Bro. 101. 152.) Lord Thurlow examined the subject more at large, discussed the point with his customary boldness and sagacity, and declared the rule of equity with a certainty and precision which have rendered his decisions a leading authority in all the subsequent cases. In that case, A. purchased the equity of redemption, in an estate under mortgage, and agreed with the mortgagor to pay, as part of the consideration for the purchase, the mort- gage debt, to the son and heir of the mortgagee, and the residue of the consideration money to the mortgagor. He also covenanted with the mortgagor, that he would pay the mortgage debt to the heir of the mortgagee, and would in- demnify the mortgagor and his representatives from the mortgage. On a bill by the devisee of A. to have his personal estate applied in discharge of the mortgage, it was urged upon the argument, that where the real estate was, from the nature of the contract, primarily liable, it should be first applied ; and that though covenants are added, yet, if they are meant as collat- eral securities to the land, they could not have the effect of altering the fund. The chancellor held, in that case, that the personal estate of A. was not bound to exonerate the real ; and he said it was a clear rule that the personal estate is never charged in equity, where it is not at law ; that there was no principle, or case, in that Court, to warrant its being chargeable in equity contrary to the order of the law ; that the grounds upon which former cases had been decided, ap- plied to that case ; that the rule of marshalling assets was, that it must be a debt affecting both the real and personal [ * 254 ] estate ; that, *in that case, the personal estate never was liable by an action against the party, and so he thought as to the case of Rochford v. Belvedere, though the House of Lords had held the personal estate liable ; that the buyer here took the land subject to the charge, but the debt, as to him, was a real, not a personal debt ; that his contract with the mort- gagor was only that the debt should not fall upon him, and 196 CASES IN CHANCERY. 254 it was a mere contract of indemnity, and he would have 1817. been bound, without any specific contract to indemnify him. ^r~^~+^ This case is very much in point; and if the rule of equity CUMBERLAND be correctly stated, it puts an end to the present discussion. CODRINGTOH. It is indeed a much stronger case than the present, for here is no stipulation with the seller to pay to the owner of the mort- gage the mortgage debt, as being part of the consideration money ; and here is no express covenant to pay the mortgage debt. Here is only a naked and dry covenant of indemnity. If I was to question the case of Tivedddl v. Tweddett, it would not be from any presumed error in the principle, but from a doubt of its application. When the indentures be- tween the mortgagor and purchaser recited an agreement, by which A. had agreed to pay out of the purchase money, to the son and heir of the mortgagee, the principal and inter- est due on the mortgage, being 2,153 pounds, and the resi- due of the purchase money, being 1,345 pounds, to the mortgagor, it might be a question whether the son and heir could not have sued at law for that money, as so much re- ceived for his use. It has been held, that if one person makes If one pcrsor a promise to another, for the benefit of a third person, that |^ k t e s 3,^")." third person may maintain an action at law on that promise, for the benefit (Button and Wife v. Poo!, 2 Lev. 210. 1 Vent. 318. T. { *"** Jones, 103. Starkey v. Mill, Styles, 296. Martin v. Hind, may maintain Cowp. 437. Marcliington v. Vernon, 1 B. fy Putt. 101. l ?i!K note. Lord Alvanley, in 3 B. &/ Putt. 149, and note, ib. Schermerhorne v. Vanderhcyden, 1 Johns. *Rep. 140.) But [ * 255 ] the great value of this case consists in the principle it has so fully and explicitly declared. As Lord Kent/on observed in another cause, " The use of cases is to establish principles; and if the cases decide different from the principles, I must follow the principles, not the decisions." In the next decision of Lord Thurloiv, which followed some time after, (Billinghurst v. Walker, 2 Bro. 604.) he pushed his doctrine to the utmost length. The rectory of F. was held by a lease for lives, subject to a charge of 2,200 pounds to Martha Vernon. It was conveyed, by the owner of the lease, to George Woodroffc, subject to the same charge, and to a charge of 900 pounds to one Pert/; and in the indenture by which it was conveyed, (and to which Martha Vernon was a party,) he covenanted to pay the charge to Martha Vernon, as well as the other charge. He discharged the debt to Pery, and, afterwards, gave a bond to Martha Vernon to pay the interest of the 2,200 pounds during her life, and the principal at his death. After repeated renewals of the lease, G. W. died, having devised the rectory to two of the defendants, and appointed two others of the defend- 197 255 CASES IN CHANCERY. 1817. ants his executors. The charge being called in and paid to s - ^-- N/ ^w_^ a legatee of Martha Vernon, by the executors of G. H\, the CUMBERLAND defendants were called on by the plaintiffs, as pecuniary CODRINOTOK. l e g atees of G. W., who were unpaid, to have the 2,200 pounds replaced by the devisees of the rectory, and paid over to them. But the defendants insisted that, in conse- quence of all these transactions, this charge had become the personal debt of G. W. This was a very strong case in favor of the doctrine set up, in that instance, by the defendants. There was not only a covenant by G. W., the purchaser of the lease, subject to the debt, to pay the debt, and a covenant in the same instru- [ * 256 ] ment to which the creditor, or owner of the ^charge, was a party ; but there was, afterwards, a bond given to her, altering and extending the original time of payment. This would seem to have amounted to that "demonstration of t!:o intention " requisite to make the debt a personal obligation. But it was held, that giving the bond was not sufficient ; that it was merely a collateral security, which did not vary the nature of the charge, which continued primarily a debt upon the estate ; and the defendants were, consequently, decreed to pay over the money. It was admitted that G. W. made himself personally liable to the creditor, but still it did not throw the charge on his personal estate, because there was not a demonstration of such intention. So that it seems not to be sufficient that the stranger, who takes the estate subject to a debt, should become legally responsible to the creditor, unless that responsibility be accompanied with evidence of an intention to assume the debt, as a personal debt of his own, and detached, as it were, from the land. The case of Mcttthcson v. Harchvicke, (note to 2 P. Wms. 664.) was decided about the same time with the one I have just considered, by Lord Kenyon, as master of the rolls. The testator there devised an estate to A. and B. in fee, charged with the payment of debts and legacies. A. paid all the debts and legacies, except one legacy of 1 00 pounds, for which he gave his note to the legatee, and died. It was admitted that he had paid off the other encumbrances, with a view of easing the estate from them altogether ; but the note there was held to be merely a collateral security, and that the devised estate was the primary fund for the pay- ment of it. The question in these latter cases seems to be, not merely whether the purchaser has rendered himself liable at law to a suit by the creditor, but which estate is to be deemed the [ * 257 ] primary fund, and which only the auxiliary. *When a man gives a b-^nd and mortgage for a debt of his own contracting, 198 CASES IN CHANCERY. 257 the mortgage is understood to be merely a collateral security 1817. for the personal obligation. But when a man purchases, or v_**~\^^> has devised to him, land with an encumbrance on it, he be- CUMBERLAND comes a debtor only in respect to the land ; and if he promises CODRINGTON to pay it, it is a promise rather on account of the land, which where a man continues, notwithstanding, in many cases, to be the primary gives a bond fund. The same equity which in other cases makes the for u IS o-wu personal estate contribute to ease the land, as between the dcbt > the mort- real and personal representatives, will here make the land ^toiiateraTse^ relieve the personal estates. There is good sense and justice curity. But if in the principle ; and I feel the force of the doctrine, that it fewee oHand requires very strong and decided proof of intention, before encumbered, the Court can undertake to shift the natural course and order Mreonaliy""'^- of obligation between the two estates. We have already bie to thecredi- witnessed the tenacity with which the Court adheres to the t |)e lami^Tfar natural order of the funds, when a stranger comes in and as relates to the Xakes the encumbered land ; and the books arc full of cases, ^setsf 'i" g the on the other hand, which subject the personal estates pri- primary fund marily, and as " the natural fund," to the payment of debts unless P acoJ originally contracted by the party, and even though the debt lrary , inl j cnt be should be created by mortgage, without either bond or cov- enant. (I P. Wins. 291. Free, in Ch. 7. 61. 3 P. Wms. 358. 1 Vesey, 251. 2 Atk. 430. 1 Bro. 454.) I proceed to the casa of JVoods v. Huntingford, (3 Ve- sey, 128.) in which Lord Ahanley brings the subject into discussion. R. H. had mortgaged land to raise money for the use of his son John. The land was afterwards conveyed, subject to the mortgage, to the use of John, who joined with his father in a covenant for the payment of the money. The land was next reconveyed to A*. H., who covenanted to discharge the mortgage, and afterwards borrowed a further sum from the mortgagee, and made a new mortgage for the entire debt. The question was between the heir *and personal f * 258 j representatives of R. H., which estate should bear the debt. It is difficult to perceive a point in the case; and the master of the rolls was clearly of opinion, that R. H. had made the debt his own, though it was primarily the debt of his son in equity, and of himself and his son at law. He properly adds, that if these facts were not sufficient to make the debt his own, a man never could make a debt his own, without express declaration. He was very careful not to contradict, in any degree, the principle established in Twcdclell v. Tweddell, which was a very governing case. In that case, there was no communication with the mortgagee, but only a covenant of indemnity, and he did not by that act take the debt upon himself personally. 199 258 CASES IN CHANCERY. 1817. ^ n B u rt er v - Cutler, (5 Vesey, 534.) the case of Tweddell V^^-N^*^ v. Tiveddoll is again recognized and followed by the mastei CUMBERLAND of the rolls. This was the purchase of an equity of re- CdDRiNGTON demption, and an agreement with the vendor to pay the mortgage debt of 2,000/., and, also, 1,000/. to the vendor: but here, likewise, there was no communication with the mortgagee. It was admitted, that Tweddell v. Tweddell was in point, and that the mortgage debt remained primarily chargeable upon the real estate. It was not the proper debt of Butler, the purchaser, and he could not have been per- sonally sued by the mortgagee. Lord Alvanley collected from the decisions, that if a man purchases an estate subject to a charge, and does no more than covenant with the vendor that he shall be indemnified, it is not his debt, except in respect to the estate ; and the estate, and not his personal property, must bear it. He admitted that the purchaser might have been liable circuitously to the vendor for his indemnity, but he said the decree would have been then for sale of the estate. The case of Waring v. Ward (5 Fesey, 670. 7 Vesey, 332.) is still more interesting; for it gives the opinion of Lord Eldon on this much litigated question. [ * 259 ] *In that case, the testator had purchased an estate subject to a mortgage. He borrowed the sum of 20,000/., and gave a new bond and mortgage for it, and thus made a new and different contract with the mortgagee. The heir was decreed to be exonerated by the personal assets of the testator from the payment of that sum, because the real contract was only secondary, and the personal was the primary contract. Nothing can be clearer than the conclusion in this case ; but Lord Eldon gave his view of the general doctrine. He observed, that the rules on the subject were extremely clear, and that the principle upon which the personal estate was first liable in general cases was, that the contract was primarily a personal contract, and the land bound only in aid of the personal obligation to fulfil the personal contract. That upon the transfer of a mortgage, not originally the personal debt of the party, by adding his personal contract, he will not make his personal estate liable, in the first in- stance. That Lord Thurlow carried the doctrine to this extent, viz. that if the purchaser of the equity of redemp- tion covenants to pay the mortgage debt, and also to raise the interest from four to five per cent. ; yet, as between the real and personal representatives of the purchaser, the additional interest was not even primarily a charge upon the personal estate, for it was incident to the charge. That, even independent of a covenant of indemnity, the purchaser 200 CASES IN CHANCERY. 259 >f an equity of redemption is bound to indemnify the vendor 1817. against any personal obligation., to pay a debt charged on an s^^-v-^.^ estate of which he had become the owner. That the case CUMBERLAND of Tweddell v. Tweddell went upon the principle, that the (^ DRI K' GT ojf debt due to the mortgagee was never a debt directly from that person whose personal assets were sought. That, if Lord Thurlow was right upon the fact, the case was a clear authority that the purchase of an equity of redemption will not make the mortgage debt the debt of the purchaser. That in *his hands, it is the debt of the estate, and a mortgage [ * 260 1 interest, as between his representatives. In the case of The Earl of Oxford v. Lady Rodney, (14 Vesey, 417.) the testator purchased an estate subject to a mortgage, and paid the consideration remaining for the vendor, beyond the mortgage, to the vendor, and then cov- enanted directly with the mortgagee to pay him the mortgage debt. The question arose between his heir at law and personal representatives ; and Sir Wm. Grant, the master of the rolls, took occasion to observe, that it was not very easy to reconcile Tweddell v. Tweddell with the principle estab- lished by Lord Hardwicke in Pardons v. Freeman, viz. that where the mortgage money was taken as part of the price, the charge becomes a debt from the purchaser. But he admits that Lord Thurloiv's principle was right, if the real result of the facts in that case was, that the contract of the purchaser never gave any direct and immediate right against himself to the mortgagee, and was only a contract of indemnity to the vendor against the mortgage. This- case differed materially from that of Tweddell v. Tweddell, for there was a direct contract with the mortgagee, and in that case there was no dealing with the mortgagee. Though Sir Wm. Grant declares, that Tweddell v. Tiveddell is now to be looked upon as an authority to the extent to which it goes, yet he seems to intimate that an inconsistency existed between that decision and what Lord Thurloiv said in Billinghurst v. Walker, " that if the charge was part of the price, then the personal estate was liable." I cannot understand this observation of Lord Thurlow, nor see the importance of the criticism. The mortgage debt is always part of the price, unless there be an agreement that the vendor should take up the encumbrance. The purchaser-, wherever he covenants to indemnify the vendor, takes the land cum onere : this is the clear understanding of the parties, md the value of the encumbrance will, of course, *be de- [ * 261 ] ducted from the real value of the land. In TineddeU v. Tiveddell, the charge was part of the price, and that part of the price the purchaser was to pa^ to the mortgagee. This VOL. III. 26 201 261 GAMES O CHANCERY. 1817. was * ne case ? a ^ s j m Butler v. Butler, yet Lord Alvanlei, ^*~^~+~s takes no notice of that distinction. In the very case of CUMBERLAND Billinghurst v. Walker, the charge was, in one sense, part of the price, for the land was conveyed to the testator as a mar- CODRINGrON. . r '. r i r < i i i riage portion tor his wife, after deducting the encumbrances which the testator was to pay. All sales of equities of redemp- tion, where there is no express agreement to the contrary, pass the estate with the encumbrance ; and the purchaser will always withhold the amount of the encumbrance from what is deemed the value of the land, and he pays only the res- idue to the vendor. The only question in all these cases is, whether a right of action at law does not accrue to the mort- gagee, when the amount of the mortgage debt is distinctly marked and separated from the price to be paid to the vendor, and by agreement between vendor and vendee, is left in the hands of the latter for the use of the mortgagee. It was held in Nelson v. Blight, (I Johns. Cos. 205.) that wiiure a trust where a trust was created for the benefit of a third person, is created for though without his knowledge at the time, he may affirm the the Iwmentofa - . ' * third person, trust, and enforce its execution ; and it it be to pay money, though without } ie ma y enforce its execution at law. This doctrine was his knowledge. . _. . ___ ,-, ttn r i r ^/^\ he may after- again affirmed in Weston v. Jaarfcer; (12 Johns. Hep. 2/o.) wards affirm it, anc | j t n j n k the same principle is to be met with in 7 and enforce the , execu tion of it. Cra 11 Cfl , 71. This series of cases, which I have thus examined, shows, very conclusively, that by the English equity system, as it has been declared received for the last thirty or forty years, the purchase of the equity of redemption, in this case, by Sir W. P., with a covenant of indemnity to Williamson, the mortgagor, against the mortgage debt, did not make the debt nis own, so as to render his personal assets the primary fund [ * 262 ] to pay it. The cases all agree *that no covenant with the mortgagor is sufficient for that purpose. There must be a direct communication and contract with the mortgagee ; and even inui is not enough, unless the dealing with the mortgagee be of such a nature as to afford decided evidence of an intention to shift the primary obligation from the real and personal fund. The cases of lived Jell v. Tweddell, and Butler v. Butler, contained covenants with the mortgagor to pay the encumbrance, and that was not sufficient. The cases of Shafto v. Shafto, Bullinghurst v. Walker, and Mat- theson v. Hardwicke, contained a communication and contract with the mortgagee, to pay the debt, and even that was not sufficient. In Tankerville v. Faivcct, the devisee voluntarily assumed a simple contract debt, and charged it on his land, and that was not sufficient. It required such a special deal ing as in Woods v. Huniingford, and Wiring v. Ward } and 202 CASES IN CHANCERY. -262 Oxford v. Hodney, by which the original contract seems to 1817. have been essentially changed, and lost or merged in the -^.x-^-^.,' new and distinct engagement with the mortgagee. It was CUMBERLAND clear, from the res gesta in these latter cases, that the party C ODRI GTOS taking the encumbered estate meant to take upon himself the debt, absolutely, and at all events, as a personal debt of his own. So far from being liable to difficulty, it appears that the decision in Tweddell v. Tweddell did not go so far as other cases had done ; and it is only peculiar in laying dowi us a test, whether there was or was not a direct per- sonal dealing and contract with the mortgagee, by which the debt was assumed. But we are told that no English authorities since 1775 are of binding authority, and that our Courts are not to vary with the opinions, or perhaps caprice, of English tribunals. It is true, that we are not to be bound by their errors, nor do we feel subdued by their authority ; but we can listen with instruction to their illustration and application of the principles of the science. " Far from me and from my friends be such frigid philosophy," or such unreasonable *pride, as may turn us with indifference or disdain from the [ * 263 decisions and the wisdom of other nations. It is to be recollected, that we have very little domestic precedent in matters of equity to guide us. A question of this kind has, probably, never before arisen in our own Courts. We must resort for information to the Courts of that nation from which our jurisprudence, as well as the best of our institutions, are derived; and we can do it with uncommon advantage. Within the last forty years, the principles of law, as taught in their Courts of equity, have been cultivated with great talent, and methodized and explained with great success. During that interval of time, their Courts of equity have had a succession of learned men to preside in them, who have shed light on this portion of municipal law, and en- riched it with their wisdom. It cannot, I presume, be seriously expected, or even wished, by the liberal counsel who argued this cause, that I should confine my researches to the more loose, inaccurate, and scanty repositories of equity learning of a date prior to our revolution, and that I should shut my eyes upon the improvements and lights of the present age. Within the period I have referred to, I may be permitted to mention, without meaning any invidious comparisons, that we have the results of the vast labors and eminent discretion of Lord Eldon, and are equally instructed by the enlightened judgment of Sir Wm. Grant, and the great diligence and accurate learning of Lord Alvanley. Within the same period we have, also, to borrow a portrait 203 263 CASES TN CHANCERY. 3817 from Gibbon, "the majestic sense of Thurloiv, and the skilfu\ ^^^s~*^s eloquence of Wedderburne." Least of all ought a complain! CUMBERLAND to be made against the application of the 'existing English law to this case, for the parties litigant are British subjects, CODRINGTON. ., --1-171 i / i r i- resident in England, and several of them or very distin- guished rank. It will, however, be found, upon further inquiry, that these [*264] later decisions are not introductory of any new rule *or principle of equity, but are only the application of principles long antecedently known and declared. This I will now undertake to show ; for I admit that the parties are entitled to have the case decided according to the existing law of this Court, though that law should happen to be different from what is now understood to be the rule at Westminster Hall. To begin with Pockley v. Pockley, (1 Fern. 36.) which came before Ch. Nottingham, in 1681. The testator, in that case, had purchased an annuity out of mortgaged lands, and taken an assignment of the mortgage to protect his purchase ; and, by his will, he directed the mortgage debt, among others, to be paid out of his personal estate. The question was between the representatives of the personal and real es- tates; and the chancellor directed this debt to be paid out of the testator's personal estate, by reason of the express direction in his will. This case shows, that, at that early day, the purchase of land, subject to a mortgage debt, did not make the debt personal ; and that it required an express dec- laration, by will, to charge the personal assets with it. But I cite the case principally for the observations made by the counsel upon the argument, and which may be considered as evidence of the rule as then understood. The counsel observed, by way of illustration, that if a man purchased an equity of redemption, he must hold the land subject to the debt ; but the debt never charged his person, nor did it, in any sort, become his proper debt. So, again, in Coventry v. Coventry, (9 Mod. 12. 2 P. Wms. 222. Str. 596.) Earl Gilbert had an estate for life, with power to settle a jointure on his wife ; and he covenanted to settle lands according to the power, and died before the power was executed. The plaintiffs brought a bill against the heir to have a specific execution of the power. Lord Macdesjield, with the assistance of two judges, held, "that the assets of [ * 265 ] Earl Gilbert should not *come in exoneration of the settled estate ; for wherever assets are brought in exoneration, there the debt originally charged the personalty. The covenant remained as a real lien on the settled estate, and there could be no application of the personal estate, since there wat no debt of which the peisonal estate was to be exone*t \ 204 CASES IX CHANCERY. 26i Here the general principle pervading all the subsequent I8l7. cases was strongly and distinctly declared. ^*r~^-+*~ In Bagot v. Oughton, (1 P. Wms. 347.) the ancestor CUMBERLANE mortgaged his estate, and died. His daughter and heir mar- r,,,,,,^,' i r i i f ' 111 I ill L-ODR1NGTO1I. ned Jo., who, by fine, settled the estate on her and her hus- band, and he joined in an assignment of. the mortgage, and covenanted to pay the money. It was held, by Lord Ch. Coivper, that the personal estate of the deceased husband was not liable to be applied in ease of the mortgaged prem- ises ; for the covenant was only an additional security for the satisfaction of the lender, and was not intended to alter the nature of the debt. That case goes as far as any of the modern cases. The husband had there become jointly seised of the estate, and he deals with the mortgagee, by his personal covenant to pay, and still the order of the funds was not affected. The subsequent case of Evelyn v. Evelyn (2 P. Wms. 659.) is equally strong, and it had great sanction: it adhered to such strictness, in preserving the original character of the two funds, as even to shake the resolu^n of Lord Thurlow. In that case, G. E. mortgaged the land for 1,500/., and his son G. E. afterwards covenanted ivith the assignee of the mortgage to pay the money. He succeeded to the premises, by settlement, after the death of his father, and died intes- tate. The question was, whether his personal estate should be applied to pay off the mortgage executed by his father, in consequence of the covenant he made. It was held, by Lord Chancellor King, assisted by the chief justice of the K. B., and the master of the rolls, that *the son's personal [*266 j estate was not to be charged, for it was still the father's debt, and the covenant of the son was to be considered only as a surety for the land, which was the original debtor. Lord Thurlow, in Ancaster v. Mayer, (I Bro. 454.) seemed inclined to think, that, in that case, the son, by his covenant, had made the debt his own ; and he supposed the idea of the Court must have been, that the covenant was by way of ac- commodating the charge, and not of making the debt his wn. But there are so many cases, and even some decided oy Lord Thurlorv, in which a mere bond or covenant to the mortgagee will not, of itself, and without other circumstances, shift the charge, that I see no ground for surprise at this commanding decision. In Leman v. Neivnham, (1 Vesey, 57.) the same decision was given. An estate descended to a son, encumbered with a mortgage, and he covenanted with the assignee of the mort- gage 10 pay it, and died. It was held, by the master of the rolls, on the authority of the cases of Bagot v. Oughton, 205 266 CASES IN CHANCERY. and Evelyn \. Evelyn, thai the personal estate of the son was exempted, and that it was still the ancestor's debt. CUMBERLAND We come next, in the order of time, to the case of Par- -ODRINGTUN sons v. /: VeeTOOM, (Amb. 115. 2 P. Wms. 664. note.) which seems to have been much relied on by the counsel for the plaintiffs, though I cannot perceive that it disturbs, in any material degree, the general current of authority. % The case is very loosely and imperfectly reported ; and if Lord Hardwickc is not made to speak with the precision with which he usually thought, it must be imputed to the deficiency of the case, which gives us no facts, and a very brief note of an opinion. He says, that if the ancestor has done no act to charge himself personally, the heir at law must take the es- tate cum onere. So, if one purchase the equity of redemp- tion, with usual covenants to pay off the mortgage, he knows of no determination upon such a case, but is inclined to think *267] the heir could not come to have *the estate exonerated. Then he adds, that such was not the case before him, which was an agreement vyi^i the vendor for the purchase of an estate for 90/., of MJpch he agreed to pay 86/. to the mort gagee, and 4/. to the vendor ; and he thinks, in that case, the words were sufficiently strong, by express contract to pay, to show an intention to make the debt his own, and the heir was entitled to the application of the personal estate. I have already observed, that such a special agreement between the purchaser and seller of the equity of redemption, by which the mortgage debt is considered as so much money left in the hands of the purchaser for the use of the mort- gagee, would seem to be sufficient ground for a suit at law by the mortgagee. If so, this case is directly within the principle of Tweddell v. Tweddell; and Lord Thurloic is said (3 Vesey, 131.) even to have approved of that decision. But the case is certainly of no use to the present plaintiffs, as Lord Hardwickc admits, that the purchase of an equity, with covenants to pay off the mortgage, does not make the debt personal ; and in the case before me, it is again to be repeated, there is nothing more than a covenant of indemnity. I have no doubt, that if we were in possession of all the facts in that case, we should discover some special circumstances which took it out of the general rule. As it now stands, it is re- pugnant to most of the cases which preceded and followed it. The mere covenant ivith the vendor to pay the mortgage debt does not shift the charge from the fund primarily liable. Most of the cases do not give that effect even to a covenant with the mortgagee. There must be circumstances in ad- dition to the covenant. Lord Hardwiclce himself so decided, shortly after the case of Parsons v. Freeman. Thus, in L( \rii 206 CASES IN CHANCERY. 267 v Wangle, (Ami. 150. 2 P. Wms.QQ^. note.) an estate came 1817. to the wife encumbered with a mortgage debt. The husband x^ v-^.-x borrowed money, by bond and mortgage on the wife's estate, CUMBERLAND and she joined in the mortgage, *as the money was partly CODRINGTON. for the husband's use, and partly to discharge her debts, dum r % ogg i sola. The husband gave a bond, and also covenanted to pay the whole moneys secured by the mortgage. But Lord Hard- uicke considered the land as still the primary fund, and he would not compel the husband to exonerate the land. He presumed the intention was otherwise. Fore, tcr v. Leigh (Amb. 171. 2 P. Wms. 664. note.) is a strong decision of Lord Hardwicke to the same effect. The testator purchased several estates subject to mortgages, with regard to one of which he covenanted to pay the mort- gage money ; and as to another estate under the mortgage, he purchased only part of it, and he and another purchaser covenanted to pay their respective shares, and indemnify each other. It was held, as between the legatees of the personal and the devisee of the real estate, that these covenants did not make the mortgages personal debts of the testator. That was not the purpose of the covenants. But the case of the Earl of Belvedere v. Rochfort (6 Bro. P. C. 520.) is thought to have established a rule much more favorable to the heir than that declared in many of the cases, and the counsel for the complainants seemed to place much reliance upon its application, as well as upon its authority. The case was this: Hug-hes, in 1706, mortgaged lands in Ireland to Proby, to secure a debt of 450 pounds, with in- terest. In 1707, H. sold his equity of redemption to Lord Rochfort for 900 pounds, and in the covenant of warranty, he excepted the mortgage ; and the deed stated that the mort- gage debt and interest were to be paid and discharged by Rochfort out of the consideration of 900 pounds. On the back of the deed there was also endorsed a receipt for the 900 pounds, in this manner, viz. "450 pounds on the per- fection of the deed, and 450 pounds allowed on account of the mortgage." *Lord Rochfort never paid the debt; and in 1726, he *269] made his will, and gave a large personal estate to his wife ; and he also devised the mortgaged premises to her for life, and then to his eldest son, George Rochfort, in fee, subject to certain debts and legacies. He declared that his wife was to hold the land devised to her, free of the mortgage debt and every encumbrance, during her life ; and he directed that his son George should pay the interest of that mortgage debt out of other lands devised to him. After giving some pecuniary legacies, he bequeathed the rest of his personal estate after 207 269 CASES IN CHANCERY. 1817. payment of all his just debts, and all his real estate, to his son S^^^N/-^^ George, and made him sole executor. CUMBERLAND George, the son, proved the will after his father's death, CODRINGTON ^^ ne kept down the interest on the mortgage debt, but never paid the principal. His mother, also, released to him her life estate in the mortgaged premises. In 1730, he made his will, and gave small annuities to his younger sons ; the mortgaged premises he gave, according to such estate as he had therein, to his youngest son, William Rochfort ; and he gave the principal part of his estate, real and personal, to his eldest son, Robert, afterwards Earl of Belvedere. The pro- vision for the youngest son, and the other children, was very small. The estate left to the eldest son was immense. After the death of George, the elder brother, whose income, at that time, was 3,800 pounds sterling a year, refused pay- ment of principal or interest of the mortgage debt charged on the land devised to the youngest, brother ; and the younger brother, being under straitened circumstances, and with an increasing family, was unable to keep down the interest, and at last, in 1739, the mortgage was foreclosed ; but the estate, by the humane indulgence of the creditor, was not sold under the decree until the year 1756. The younger brother, at last, filed his bill against the executors of his father, (of which his elder brother was one,) and of his grandfather, to have [ * 270 ] the mortgage debt *paid out of the personal assets, in ease of the land devised to him. The bill was originally filed in 1749, in the Court of Chancery in Ireland, and the final decree was pronounced by Lord Ch. Lifford, in 1770. The lord chancellor decreed, that the mortgage debt was to be considered the debt of Lord Rochfort, the grandfather, al the time of his death ; and that his personal estate, in the hands of his son and heir, George, and which since came to the hands of his grandson, Robert, Earl of Belvedere, was liable to the payment of that debt, in exoneration of the real estnte devised to William, the plaintiff. This decree was affirmed, on appeal, by the House of Lords. The simple narration of this case is exceedingly calcu- lated to enlist the feelings in favor of the decree ; and every person would naturally be tempted, by the interest and pathos of the story, to press every circumstance to the greatest extent for the relief of the younger brother. But hard cases often make bad precedents, and it is certain that this case has never since been regarded as a safe and sound authority. Lord Thurlow rejected it, though he was one of the counsel for the respondents upon the appeal. Lord Alvanlcy says, there are many difficulties occurring against the judgment, 208 CASES IN CHANCERY. 2"JO and he does not rely upon it; and Lord Eldon and Sir IVm. 1817. Grant take no notice of it in their criticisms and discussions \^X-~N/-**_^ on this much agitated subject. CUMBERLAND It is impossible to know upon what precise grounds the decree was placed by the House of Lords. The counsel for the respondents relied upon the fact contained in the deed of the purchase of the equity of redemption by Lord Roch- fort, that the mortgage debt was expressly ascertained, and set apart, and left in the hands of the purchaser, to be by him paid to the mortgagee. Lord Lifford seems to have considered this fact as decisive evidence, that Lord *Rochfort [ * 27] ] made the debt his own personal debt, and this, probably, was the ground of his decree. If it was considered that an action of law might have been brought by the mortgagee upon the affirmance of this trust, then the case would corne directly within the principle of Tweddell v. Twedddl. But the counsel for the respondents urged other reasons, founded on the will of the original purchaser, as if he had there made the debt chargeable on his personal assets. If that was the fact, then the case fell within the decisions in Pocklcy v. Pockley, and of numerous other cases to the same purpose. There is strong ground for this construction, as the testator gave the mortgaged premises to his wife for life, free of this encumbrance ; and he directed his son and executor to pay the interest of that debt out of other lands devised to him. If he intended, or expected, that the mortgage debt was to be paid in the lifetime of his widow, (and he had no right to expect the contrary,) then the testator certainly intended it should be paid out of his personal estate ; and this conclusion is the more inevitable, since he gave the residuary personal estate to his son, after the payment of all his just debts. But the counsel for the respondents urged other grounds, also, in favor of the decree. They urged the will of George Rochfort, the son, (and father of the parties to the suit,) as decisive evidence of his intention, also, that the mortgage debt was to be paid out of the personal assets of his father or of his own. He gave specific estates to his other younger sons, and gave the rents and profits of certain lands, in- cluding the premises, for the maintenance of his younger sons, until they were 25, and he then gave the mortgaged premises, and them only, to his youngest son. He must have intended it as a beneficial devise, and which could not be the case with the encumbrance upon it ; for that eventually swallowed it up. Which of these grounds were taken by the Court in the last resort, whether it was the original agreement at the *lime of the purchase, or the will of the grandfather, or the * 272 ] VOL. III. 27 209 272 CASES IN CHANCERY. 1817. W 'H f the father, cannot be ascertained. We have not the v^^-s^-^^x reasons either of Lord Ch. Lifford, or of the Court of Ap- CUMBERLAND peals ; and the case may perhaps be considered as turning CODRINGTON u P n the construction of a will, and its very special provisions. A case so peculiar, and so destitute of precision, cannot surely be received as an authority here, when it is no longer regarded as such by the tribunals of the country in which it was pronounced. The result of the cases seems to be, that as to wills, the The purcha- testator may, by express directions, charge such an encum- Sfec^onTm^s brance upon his personal assets, or, even without express will, may throw words, he may do it by dispositions and language that are brance u^wohe tantamount ; as if, for instance, the continuance of the charge personal assets, primarily on the land would be repugnant to some of the ' J iy a djsposi- p rov i s i ons j n the will, and defeat them. As to other acts of llOIlS (111 1.1 13,11- * .,...,,. guage equiva- the purchaser in his lifetime, in order to charge his personal press Direction" est ate as the primary fund, he must make himself, by contract, personally and directly liable at law for the debt to the owner of the encumbrance ; and even a covenant or bond for the purpose will not be sufficient, unless accompanied with circumstances showing a decided intention to make thereby the debt personally his own. There is, then, no pretence, on any ground, or, indeed, from any case, to charge the personal assets of the estate of Sir W. P. with the mortgage debt. He died intestate, and the Countess of Bath succeeded to his whole estate, real and personal, as his only child. The next question is, whether the personal estate of the Countess of Bath is to be charged with this debt, or whether it must not be left as primarily chargeable upon the land which descended to her heir at law. In my opinion, there is as little ground in this case, as in the other, to shift the charge from the real to the personal estate. [ * 273 ] *The will of the Countess of Bath does not touch the case ; and the inquiry is, Did her acts in her lifetime create the charge on her personally? I do not perceive a single act of hers creating any respon- sibility from her to the owner of the mortgage debt. She wished to pursue the course marked out by her father, and to make her American estates exonerate themselves, by the progressive sales, from the debts charged upon them. She seems to have acquiesced in the acts of her agent, in keeping down the interest of the debt in question ; but what is thaC to the point ? She owned all the funds, both real and per- sonal, and her property was liable, according to the nature of the charges, for all the debts : no inference can be drawn, one way or the other, as to the matter before us, from hei 210 CASES IN CHANCERY. 273 general desire to discharge all the debts upon her estates. 1817. The cases I have been reviewing require some decided and ^^~^~*^ marked act of assumption of the very debt in question, by CUMBERLAND making it a debt of primary personal obligation. The only communication from her, or act of hers, on this subject, is her letter to Mr. Troup, of the 15th of February, 1806. But that letter is not to the owner of the mortgage. It is di- rected to her agent, and contains nothing more than an anxious inquiry as to the competency of her American funds to meet the debt. The letter bound her to nothing : it is not so strong an act as the covenant of indemnity entered into by her father. When Mr. Troup afterwards made an agreement with Mrs. Foster, as owner of the mortgage, to pay the same, in consideration of forbearance to prosecute, "out of the proceeds of the Pultcncy estates under his ad- ministration and agency," he did an act for which no authority is to be found in the case. In his capacity of administrator An executor, of Sir W. P., he had no authority to bind his personal assets, r r , c^inloTbhTd for a debt not chargeable upon them before ; and as general the personal as agent for the Countess of *Bath, he was not authorized to sets 'r #"0741 bind her personally for a debt chargeable only on the land no t chargeable descended to her as heir. "P on th em be- lt would be dangerous to the relation of principal and A' general agent to infer such authority from loose general circum- a ent , cannot .I'ui r xU bind his princi- stances, susceptible 01 other constructions. pa i personally Even if the personal estate of Sir W. P. had been bound f( J r ^ a debi for the debt, that fact would not have bound the personal the^iand 6 cie'- cstate of his daughter, after a second descent cast, because scenJed to hi* it was never her personal contract. This was so said in p Cope v. Cope, (2 SafJc. 449.) and by Lord Eld on, in Waring v. Ward, (1 Vesey, 336.) Upon the whole, there appears to be less colorable ground for charging the personal estate of the Countess of B. than for charging that of her father ; and my conclusion from the whole case is, that the bill must be dismissed. The following decree was entered: "This cause having been submitted upon a case agreed to by the parties, and upon the arguments of counsel thereon, as well on the part of the defendants as of the complainants, and due deliber- ation being thereupon had, and it appearing that the com- plainants are not entitled to the personal estate, either of the late Sir Wm. Pultency, or of the late Countess of Bath, in the pleadings mentioned, in exoneration of the land from the mort- gage debt in question : It is thereupon ordered, &c., that the complainants' bill be dismissed, and that no costs be charged by either party as against the other." Bill dismissed. 211 275* CASES IN CHANCERY 1819. ~s others against WHEELER ana others. WHEELER. A judgment creditor, other than the mortgagee, may sell the equity ol redemption on execution. Though a judgment at law may be impeached, in this Court, for fraud, yet this Court will never interfere with a judgment at law on tlwj ground of irregularity ; but the record of the judgment, and exe- cution and title under them, are a conclusive bar in equity. It be- longs to the Court of law, exclusively, to inquire into the regularity of its judgment. It seems that a Court of law will not set aside a judgment, after a lapse of 20 years, on the ground of irregularity. Nov. 12 and THE amended bill, filed the 16th of August, 1814, stated, it' C 81 i8i8 and amon g other things, that Abraham Skinner, on the Sth of May, 1783, executed a mortgage of a farm, of which he was then seised, in Amejiia, in Dutchess county, to Joel Harvey, jun., to secure the payment of certain bonds. Part of the money was paid by A. S., in his lifetime ; and he continued in possession of the premises until the Sth of February, 1787, when he died, -leaving six infant children, from one to ten years of age. Chauncey iS., a son, died intestate, in 1805, leav- ing three children, plaintiffs. Joel, another son, died intestate, and without issue, in 181 1 ; and Thomas was a lunatic, and his committee, with the three daughters and their husbands, were, also, plaintiffs. The heirs of A. S. remained in pos- session of the premises, after his death, until 1789, during which time, Persis S,, his widow, had the management of the estate, as guardian to her children. On the Sth of July, 1789, she, as widow and guardian, released 53 acres, part of the mortgaged premises, to Thomas Thompson, who took pos- session, and which has since been held under that release. Three of the infant children of A. S. continued to reside on the residue of the mortgaged premises until 1799. The widow, who married W. Bishop, the 10th of September, 11 89, [ * 276 ] continued *to reside on the residue of the premises, until 1799, when Noah Wheeler took possession under claim of title. Six of the defendants have held possession under the persons who so entered, and have received the rents and profits, stated to be of the value of 500 dollars per annum, since 1799, to the present time. The bill charged, that they committed waste on the premises. J. Harvey, the mortgagee, died about the 10th of December, 1795, and his executors were made defendants. Thomas Thompson died in 1795, intestate, and his administrators were, also, defendants. The bill further stated, that the defendants denied the right 212 CASES IN CHANCEP.Y. 276 i)f the plaintiffs to redeem, asserting their title, &c. Prayer, 1818. that the defendants may account for the rents and profits, and waste committed, and that the plaintiffs may be let in to redeem, &c. The answer of the defendants stated, that Joel Harvey WHEELER gave one of the bonds of A. Skinner to his son-in-law Thom- as Thompson ; and to secure the payment of it, A. S. } on the 8th of March, 1786, gave to T. T. a judgment bond for 226 pounds, payable the 1st of October. The plaintiffs alleged that A. S. was insane when he gave the judgment bond ; but this was denied by the answer. On the llth of April, 1 787, judgment was entered up on the bond, for 452 pounds debt, and ll. 3s. 6d. costs, on which a fi. fa. was issued, re- turnable in April term following, which was returned by the sheriff, endorsed, " I have levied to the value of 5 pounds, and not sold; for want of buyers ; which execution, the defend- ants stated, was actually levied on the mortgaged premises. On the 28th of April, 1787, a writ of venditioni exponas was issued, reciting the fi. fa., return, &c., which 'writ was made returnable on the last Tuesday of July : That the sheriff, for want of goods and chattels, sold all the right of A. Skin- ner in the mortgaged premises, to 208 acres and three quar- ters, for 23 pounds, and to 54 acres, for 71 pounds; and on the *3d of December, 1787, the sheriff executed a deed to [ * 277 ] T. T., set forth in the answer, and which recited the Ji. fa., its return, &c., the venditioni exponas, &c., by virtue of which he sold the land on the 20th of July to T. T. as the highest bidder : this deed also recited the mortgage by A. S. to Har- vey, and that he had afterwards released the 54 acres to A, S. The defendants insisted, that by the sheriff's sale, the equity of redemption passed to T. T., and that whether the judg- ment and execution were irregular or erroneous, were ques- tions of law exclusively, and to be determined by the Supreme Court, in which the judgment was rendered. That the plaintiffs had applied to the Supreme Court to set aside the judgment and execution for irregularity, on the grounds stated in their bill, which was refused. The defendants dis- claimei all title to 53 acres ; and they stated, further, tha*t, in 1795, the executors of Joel Harvey, jun., filed a bill in this Court against Thomas Thompson to foreclose the equity of re- demption; and that, prior to the 28th of July, 1795, a decree was passed for the sale of the mortgaged premises, except the 53 acres ; and that, on the 28th of July, 1795, a venditioni exponas issued to the sheriff, to sell the mortgaged premises, which were sold on the 15th of October, 1795, at auction, for 100 pounds, except the 53 acres, to R. De Cantillon, to whom E deed was executed, which was set forth in the answer. 213 277 CASES IN CHANCERY. 1818. That Harvey assigned one of the bonds to E. D., defendant another to R. De Cantillon, and another to James S. Smith t who, on the 15th of September, 1796, purchased the widow'u right of dower, and all other right under T. Thompson ; and WHEELER, on the 17th of June, 1797, they sold 209 acres to the defend- ant, N. Wheeler, for 2,500 dollars, who occupied the same until July, 1813, when he conveyed the same to his three sons, defendants. John Lloyd, a witness, aged 81 years, testified, that he was the deputy sheriff, who received the execution and the f * 278 ] *venditioni exponas ; that he did not sell the real estate of A. S., there being goods enough to satisfy the execution. It appeared that A. S. died in February, 1787, and that judgment was not entered on the bond and warrant until the 12th of April following; and the plaintiff insisted that the judgment was therefore void, and no lien on the equity of redemption ; that the execution was not pursuant to the form prescribed by the 7th section of the act of the 19th of March, 1787, and was void, and gave the sheriff no authority to sell; that the plaintiff did not levy on the premises before the return day of the execution, nor did he return that he had levied on any lands, &c. That no such writ of fi. fa. had issued as was mentioned in the venditioni exponas, and that the vend. exp. was issued and tested after the death of A. S., and did not conform to the statute ; and that for these reasons the sale was void. The cause was brought to a hearing on the 12th of No- vember last. Cady, for the plaintiff. P. Ruggles, contra. Jin. 6, 1818. THE CHANCELLOR. This is a bill filed by the hei;s of Abraham Skinner, a mortgagor, to redeem. The defendants have raised several objections in bar of the demand. The first, and perhaps the only objection which it will be requisite to consider, is the sale of the equity of redemption under a judgment and execution at law against Skinner, in favor of Thomas Thompson. The equity of redemption in the mortgaged premises was purchased at such sale by Thompson, and the premises are now held, partly under deeds from him, and partly under a foreclosure of the mort- [ * 279 ] g a e j an d a sale under a decree of this *Court against Thompson, in whom the equity of redemption resided. The defendants have given in evidence the judgment ir 214 CASES IN CHANCERY. 279 the Supreme Court, entered by confession, as of January 1818. term, 1787, against Skinner, in favor of Thompson, and a sheriff's sale by execution, under that judgment, of all the mortgaged premises, in July, 1737, and a sheriff's deed to Thompson, the purchaser, of the date of the 3d of Decem- \VHEELKR. her, 1787. Unless the plaintiffs can avoid the force and effect of that judgment, execution, and sale, there is an end of their claim. It is not to be made a question, whether a judgment cred- itor, other than the mortgagee, may not sell the equity of re- demption, on execution at lav/. The validity of such a sale has received a sanction in our Courts that is not now to be shaken. But the counsel for the plaintiffs has undertaken to show, that the judgment, and the proceedings under it, were irregular and void. He has detected so much apparent irreg- ularity, that, probably, he might have succeeded in an appli- cation to the Supreme Court, if he had made it in due time. The application was, indeed, made in February term, 1811, (7 Johns. Rep. 556.) upon affidavits, disclosing all the facts upon which the judgment and the proceedings under it are now assailed. I remember the case ; and I remember, also, the decision which, in the name of the Court, I pronounced in the cause, " that after the lapse of 20 years, no judicial proceeding whatever ought to be set aside for irregularity." I am now called upon, sitting in this Court, to do the same thing, in effect, by disregarding the title under the judgment, and letting in the plaintiffs to redeem. It is now upwards of thirty years since that judgment was rendered, and sale made ; and the force of the application is not only still fur- ther weakened by time, but is also made to a tribunal which has no jurisdiction over the question of irregularity *in a [ * 280 ] judgment at law. The difficulty is truly stated in the answers of the defendants, that " whether the judgment and execution are irregular or erroneous, are questions exclusively at law." As long as the judgment and execution remain in force, and are not set aside at law, they must be received in this Court as of legal validity. A judgment at law may be impeached in this Court for fraud ; but there is no case in which equity has ever under- taken to question a judgment for irregularity. The power of a Court of law is always exercised, in such cases, in sound discretion ; and the relief is frequently granted upon terms. This Court cannot impose any such terms, or take any sur> cognizance of the case ; and the title set up under the judg- ment and execution must be received here as a conclusive bar. The case of Baker v. Morgan, (2 Doiv's Rep. 526.) 215 CASES IN CHANCERY. Z5HOTTEN- KIKK 1813. decided in the English House of Lords, in 1814, lays down the same rule ; and the doctrine coming from such masters of equity as Lord Redcsdale and Lord Elclon, is undoubtedly to be considered as correctly declared. If there had been WHEELER, any case warranting the interference of chancery with an ir- regular judgment, they would have known it. In that case, a recovery in ejectment was impeached after the lapse of 25 years, as null and void, on the ground of irregularity ; and it was declared by them,, that they had never heard before of equity trying a proceeding at law for irregularity. Lord El- don said, " he could not imagine how, upon a bill filed in 1806, equity ought to trust itself to examine, as the ground of decree, whether a judgment in 1781 was regularly ob- tained." If the judgment and execution cannot be set aside, or questioned, on the gcound of irregularity, we surely cannot now go into parol proof, upon this case, whether there was a sale of the mortgaged premises. We have the sheriff's re- * 281 ] turn to the venditioni ex-ponas, that he had sold of *the goods and chattels, lands and tenements, of Abraham Skinner, to 1151. 3s., and that he had no more property in his bailiwick whereon he could levy the residue of the debt. That vendi- tioni exponas recited, in form, and in extenso, the return en- dorsed on the previous Ji. fa., by which it appears, that the sheriff had levied on the goods and chattels, lands and tene- ments, and that they remained unsold for want of buyers. We have, lastly, the sheriff's deed of December, 1787, reciting the process of execution, the seizure or levy, the return, and the subsequent process and sale, on the 20th of July, 1787, of the mortgaged premises to Thomas Tlwmpson. After such official and authoritative documents, can we now listen to the deposition of a former deputy of the sheriff, who is up- wards of 80 years of age, and who undertakes to say, from memory, that the goods and chattels of Skinner were sold under the execution and judgment, but not the lands and tenements? It would be impossible to suggest testimony more dangerous in itself, more contrary to rule, and more palpably inadmissible. I am, accordingly, of opinion, that the plaintiff's bill be dismissed, with costs. Bill dismissed. 216 CASES IN CHANCERY. *A. VAN BERGEN against H. VAN BERGEN. [Followed, Hopk. 419.] A. Court of chancery does not interfere to prevent or remove a private nuisance, unless it has been erected to the annoyance of the right of another, long previously enjoyed. It must be a case of strong and imperious necessity, or the right previously established at law, before the party is entitled to the aid of this Court. Though a person has a right to erect a mill where he pleases on his own ground, yet he must so exercise that right as not to interfere with the existing rights of others. If Jl. erects a new mill in such a place, or so near the mill of B., that an artificial dam, before erected by B., causes the water to flow back on A?s mill and obstruct its movement, it seems that Jl. has no right to complain of the dam of B. as a nuisance. BILL filed, December 5th, 1816. It stated that the plain- NOV. n and tiff being seised, as tenant in common with the defendant, ^ * 817 > ^ of about six acres and a half of land, and two certain falls of water and mill-seats, including the ground requisite for the erection and convenience of mills, together with a grist-mill, erected on the easternmost or lower mill-seat, on the north side of the Coxsackie Creek, and the privilege of erecting mills, raceways and dams, on and across the said creek, and using the water for such purposes, he, on the 8th of Decem- ber, 1808, entered into an agreement with the defendant, for a partition of the premises ; and they, accordingly, divided the same into two parts, and the westernmost half of the six and a half acres, together with the upper fall and mill-seat, were set off and released to the plaintiff, and the easternmost half, together with the lower fall and mill-seat, and the grist- mill erected thereon, to the defendant. That the part of the defendant being of greater value than the part of the plaintiff, the defendant, in consideration thereof, agreed to convey to him 31 acres of land in the Coxsackie patent. That, in 1809, the plaintiff erected a saw-mill and dam, on the creek, within his premises, and that by reason of *its [ * 283 j overflowing the lands of P. R. Vandenbergh and others, he was sued at law, and a verdict recovered against him for 120 dollars, (a) That the plaintiff, afterwards, removed, and re- built his mill and mill-dam, twenty-two feet lower down on the creek, within his premises. That the defendant, in the summer of 1816, erected a dam three feet and a half high, on the upper part of the fall contiguous to his mill, by means of which, he has caused the water to flow back and obstruct (a) Vide 13 Johns. Rep. 212 VOL. III. 28 217 5283 CASES IN CHANCERY. 1818. ^e operation of the plaintiff's mill. That the fall of the de^ *r^^~*^ fendant's mill is twenty feet high, formed of rocks, and the 'AN BERGEN depth of water at, and just above the fall, in a dry season, i? AN BERGEN. no ^ ^ ess ^ nan ^ or ^ feet, and the defendant can have a full supply of water for his mill, without such a dam as he has erected, and without obstructing the plaintiff's mill. That the defendant had notice of the plain tiff' j intention to remove his mill and dam, when the defendant erected the said dam. That the plaintiff gave notice to ihe defendant of the obstruction to the plaintiff's mill, occasioned by the defendant's dam, and requested him to remove it, which he has refused to do. That the injury occasioned to the plain- tiff, by the defendant's dam, is permanent, and precludes all hope of any adequate reparation at law, and must lead to numerous lawsuits. That the erection of the said dam by the defendant is contrary to the intent and meaning of the said releases in partition ; that it impedes the use of the plaintiff's mill, and the defendant has an abundant supply of water, at all seasons, without any such dam, or obstructing the plaintiff. Prayer, that the defendant may be required, within a rea- sonable time, to remove his said dam, and not obstruct the operation of the plaintiff's mill, by any erections below, by throwing back the water, &,c. The deed of the defendant to the plaintiff released to him the land, " together with the fall of water in the said creek, * 284 ] and the privilege of the same, and the free use of *any mill or mills, which may, hereafter, be erected in or upon the said creek and fall of water, so that the parties of the first part (defendant and wife) shall not so raise the mill-dam now erected below the said falls, as to make the back water impede any mill which may be erected, as aforesaid, by the plaintiff." The answer of the defendant, filed the 1st of March, 1817, stated, that he was tenant in common with the father of the plaintiff, of the premises described in the bill, and, in 1804, agreed with him to divide them, in the manner described, and under that agreement, the parties entered into posses- sion ol their respective parts in severally ; that on the 8th of December, 1808, to confirm that agreement, and carry it into effect, the plaintiff and defendant executed releases to each other for their respective parts. That the grist-mill mentioned was erected twenty years ago, by the defendant and the plaintiff's father, and they, at the same time, erected a dam on the top of the fall where the dam is now erected, of the height of above four feet, which continued until 1810, when it was carried away by a freshet. That r 218 CASES IN CHANCERY. 281 Ihe time the releases were executed, the dam on the top of 1818. the lower fall was, at least, three feet, and the dam and mill- pond were, as they had been a long time before, used as ap- pertaining to the mill. That when the plaintiff', in 1809, erected the saw-mill and dam mentioned in his bill, the dam on the top of the fall, erected by the defendant and the plaintiff's father, was remaining of the same height as before mention- ed, and the water then caused to flow back and form a pond to the foot of the upper fall, and upon part of the bed of the river released to the plaintiff's father. That when the dam of the defendant was carried away by the freshet, one A. Van Allen was tenant of the mill, &c., and without the consent of the defendant, erected another dam resting upon the first step of the fall, one foot lower down the creek than the former dam, and raised about two feet above the level *of [ * 235 the top of the fall ; and the water, by that means, formed a pond on part of the bed of the creek included in the prem- ises of the plaintiff. That this last dam was carried away, and the defendant, in the autumn of 1816, erected another dam on the top of the fall, where the dam built by him and the plaintiff's father originally stood. That the last dam does not raise the water more than twelve inches above the top of the fall, and is two feet lower than the dam erected before, and which stood there when the partition was made. That when the defendant erected the last dam, he had no notice of the intention of the plaintiff to remove his saw-mill and dam lower down. That when the defendant was building the last-mentioned dam, the plaintiff was informed of it, and shown how high it was to be built, and approved of it. The defendant admitted, that, by means of the last-men- tioned dam erected by him, the water flows back upon the wheel of the plaintiff's newly-erected saw-mill, and wholly impedes its operation. That the fall of the defendant is about 20 feet high, formed of rocks, making a natural dam of such a height as to form a basin of water of considerable depth, a few rods west of the top of the fall, and in some places to the depth of 10 feet, &.c. The defendant denied that he had, at all seasons, an abundance of water, without an artificial dam, or without obstructing the operation of the plaintiff's mill. That to ob- tain the necessary supply of water for his mill, at any season >^**^~+>~' an d he told Hoffman, who acted as agent for the executors, WILLIAMSON " that he would show every reasonable indulgence for the DALE payment of what remained still due." The agent understood from this assurance, that the plaintiff would not compel a sale of the property, but would wait a reasonable time. It further appears, that the agent afterwards called upon the plaintiff's solicitor, and " stated to him the promise made by the plain- tiff, of not pressing the estate, and the plaintiff's declaration to him, that he did not want money at that time ; that the solicitor replied, that, at all events, the advertisement for the sale of the property must be continued, which would put the estate to considerable expense, and which, the agent said, the estate would pay." The agent states further, that the soli- citor said, he would represent the conversation to the plaintiff, and " that he had no doubt the plaintiff would be satisfied therewith, and consent that the property should not be sold, and that he would advise the plaintiff to wait, and not have the property sold." These different conversations were report- ed to the executors, and they were induced to believe that the property would not be sold ; and by that means, they were sur- prised by the sale, and were not prepared to meet it, as they otherwise would have done. Notice of the sale was, indeed, [ * 292 ] left at the *agent's office the day before, or on the day of the sale ; but he was out of town, and did not receive it in time. There is no imputation of any unfair intention in the plain- tiff or the solicitor, or of any unfair conduct at the' sale ; but I think that, under the circumstances, the defendants were innocently misled, without any culpable negligence imputa- ble to them. The sale ought, therefore, to be opened upon terms. I wish it to be distinctly understood, that I interfere in this case on the ground of surprise, and that I do not lay any stress upon the alleged inadequacy of the auction price. Such a ground alone, unattended with other circumstances, is not sufficient. (Livingston v . Byrne, 11 Johns. Rep. 566.) I may add further, that the surprise here is not of the most striking kind, and the case for relief, on that ground, is pushed to the utmost verge of an admissible interference. The practice of opening biddings at the master's sales, which prevails in England, has not prevailed here ; and I do not proceed in this case upon the ground of that practice. If it ought to be adopted, this case is not brought within it ; for here is no offer of any specified advance price. The Court, under that practice, require the deposit of a reason- able advance on the laid, together with the purchaser's ex- penses. (1 Vesey, jun. 453. 4 Fesey, 700. 6 Vesey 224 CASES IN CHANGER*. 292 466. 51<5. 7 Pesey,420. 8 Vesey, 214. 14 Vesey, 151. 1 Vesey \Q\=( fy B. 361. 3 Vesey fy B. 144.) From what fell from Lord ^^-^ Eldon, in White\. Wilson, (14 Vesey, 151.) it is questionable, WILLIAMSON whether the practice of opening biddings as freely as they do DA^*. in England be not productive of more injury than good. He says, that " half the estates that are sold in the Court are thrown away upon the speculation, that there will be an op- portunity of purchasing, afterwards, by opening biddings. 1 ' But here is a surprise, which Lord Eldon admits to be suffi- cient to open biddings, even after confirmation of the mas- ter's report. *It is a surprise "generated by the party's own [ * 293 J conduct." It was the language of the plaintiff and his soli- citor which unintentionally put the defendants off their guard, and led to a sale without their expectation or knowledge, and contrary to their intention. The purchaser, who stands fair before the Court, is entitled to be paid his costs and expenses, to be allowed Jay a master, on the liberal principle of the allowances of costs between solicitor and client. I shall, accordingly, direct, that the sale be set aside, on the defendants' paying, upon demand, the purchaser's costs and expenses, including the costs of this application ; and that the plaintiff be at liberty to cause the mortgaged premises to be again exposed to sale, on giving the usual three weeks' notice in one of the daily papers in the city of New-York, of the time and place of sale. The following order was entered : " Ordered, that the sale be set aside, on condition that the defendants pay to Elbert Anderson, the purchaser, upon demand, his costs and ex- penses attending the purchase, and including his costs of this application, to be taxed upon the principle of the allowance of costs and expenses as between solicitor and client. And it is further ordered, that if the said condition be complied with, the plaintiff be at liberty to cause the mortgaged prem- ises to be again exposed to sale by a master, on giving the usual three weeks' notice in one of the daily papers in the city of New-York, of the time and place of sale; and that the costs and expenses of the former notice and sale on the part of the plaintiff, be included in the expenses of the suit, and be chargeable, with the other costs of suit, upon the mortgaged premises ; and that a copy of this order be forth- with served on the solicitor for the plaintiff, and also on the purchaser, or his counsel." VOL. III. 29 225 294* CASES IN CHANCERY. 1818. *-v-x MCCOY v. PAYNE January 20. [*295] t Ante, p. 68. *MOODY against A AND H. PAYNE. Where the rule to show cause why publication should not pass hu been enlarged by an order for that purpose, at the instance of the de- fendants, and that order has expired, publicttion may pass without entering a further rule with the register, as is the practice, in ordinary cases, on the expiration of the rule to show cause. If, after publication has so passed, the substance of the testimony taken on a material point, upon which further testimony is sought, has been disclosed to the defendant, it is too late to move to open or en- large the rule, on affidavit. MOTION to enlarge the publication ; 1. Because no order to pass publication had been entered ; 2. On affidavits, that a material witness resided at Detroit, and that the defendants had not taken out a commission in season, for the reasons detailed in the affidavits. The motion was opposed on the ground, 1. That after witnesses had been duly examined on the part of the plain- tiff, a rule to show cause why publication should not pass had been entered and had expired ; and that before its expiration publication had been enlarged, on the application of the de- fendants, to a period also expired, and publication had since been made; 2. On affidavits, denying the merits of the application, and that the defendants had no just cause or excuse for their delay. Henry, for the motion. Van Buren, (attorney-general,) contra. He cited Wyatfs P. R. 355. 2 Johns. Ch. Rep. 432. THE CHANCELLOR said, that after the rule to show cause why publication should not pass had expired, the regular practice would have been to have entered a rule with the *register, that publication pass ; and so the practice was un- derstood in Brown v. Ricketts.^ But this case formed an exception to that practice. After the rule was given to pass publication, and before it had expired, the same was enlarged by order ; and when the time limited by the order expired, publication passed, in consequence of that order, and without the necessity of a further rule. Such is the practice laid down in the books, and which must prevail, in the absence of 226 CASES IN CHANCERY. any special provision, or any settled course of practice to the contrary. (Wyatfs P. R. 355. 1 Harr. Ch. Prac. 448.) The plaintiff was regular in the course he pursued, and the motion fails upon the merits. The facts suggested as an excuse for the defendants' delay are contradicted, and they are left without any excuse. It also appeared, that the sub- stance of the testimony taken on a material point, upon which further testimony is sought, had been disclosed to the defend- ants, at their request. The doctrine in Hamersly v. Lambert, (2 Johns. Ch. Rep. 432.) as to opening and enlarging publi- cation, applies to the case. Motion denied. 295 1818. ^v'"^ YOUNG v. COOP KB. YOUNG and Wife against COOPER and others. Under the act for the partition of lands, where the proceedings are hi this Court, it is not necessaiy for the parties to execute mutual re- leases to each other, according to the partition ; but the final decree of the Court, that such " partition shall remain firm and effectual forever," &c., is sufficient. THE report of the commissioners assigned and empow- ered to make partition of the real estate, in the pleadings mentioned in this case, was read, filed, and confirmed. *By the report, and the maps accompanying it, it appeared that the commissioners had made partition, and allotted and set apart, to each of the parties, by metes and bounds. Riggs, for the plaintiffs, suggested a doubt, whether it was necessary, under our act, to pursue the course of the English chancery, by which the parties were decreed to release and convey to each other, according to the partition ; and he re- ferred to 2 Sch. fy Lef. 372, as showing the English rule. THE CHANCELLOR thought it unnecessary, under the 17th section of the act, sess. 36. ch. 100, which declares that all partitions made under, and in virtue of, proceedings had in the Court of Chancery, shall be firm and effectual forever ; and that the final decree of the Court for or upon the partition, &c., shall be binding and conclusive, as absolutely as if such partition, &c. had been made in a Court of law, &c." There is no doubt that, by the English practice, the parties execute mutual conveyances, settled by a master. 227 January 23 [ * 296 296 CASES IN CHANCERY. 1818 The decree, in this case, therefore, was, " that the said pai- v^-^-^, tition remain firm and effectual forever, and that the said parties MORRIS respectively hold and enjoy, in severalty, the said portions of tne P rem i ses set apart and allotted to them as aforesaid." [ * 297 ] *MORRIS AND Mo WATT, Assignees of C. SANDS, against S. D. PARKER. [Applied, 11 Paige 237. Approved, 3 Edw. 103. Distinguished, 5 Johns. Ch. 248; 3 Paige 107, 116. When a defendant answers, that he has not any knowledge or informa- tion of a fact charged in the plaintiff's bill, he is not bound to declare his belief one way or the other. It is only when he states a fact upon information, or hearsay, that he is required to state his belief or unbelief. Where certain documents are set forth, historically, in the stating part of the bill, the defendant must answer to the fact of the existence of such documents, according to his knowledge, or his information and belief He is not bound to answer to the facts contained, or stated, in such documents, unless particularly stated, distinct from the documents. Where the defendant answers, that he " is utterly and entirely ignorant " as to the fact to which he is interrogated, it is sufficient. January 23. ON appeal from the master's report, allowing exceptions to the answer of the defendant. The material facts charged in the bill, or to which the de- fendant was interrogated, and his answer to which was except- ed to, as evasive and unsatisfactory, are sufficiently stated by the Court. Rtggs, for the plaintiffs. T. Sedgwick, -contra. THE CHANCELLOR. The first exception to the answer is, that the bill having set forth a certain petition to have been presented to the Circuit Court of the United States, for the district of New-York, by James Bingham and Benjamin Stokes, as assignees of John Jones Waldo, a bankrupt, and the contents of the said petition ; the defendant, in answer to that part of the bill, said he had not any " knowledge or information " as to the truth or falsehood of the several alle- [ * 298 ] gations charged to have been contained in that *petition, with- out stating what his belief was concerning the same. It is not necessary even to look into the bill and answer, to pronounce this exception unfounded. It appears, upon the 228 CASES IN CHANCERY. 298 very face of it, not to have been well taken. When a de- 1818. fendant answers, that he has not any knowledge or informa- ^^-^s~*+^ tion of a fact charged, he answers sufficiently, and is not MORRIS bound to declare his belief. He is not to be supposed to p AR V K KR have any belief, one way or the other. The rule requiring a defendant to state his belief, is when he states a fact upon information or hearsay. In such case, he must add his belief, or unbelief, of the report or information. But when he has neither knowledge nor information as to facts stated by the plaintiff, he is not bound to say more. It would be very un- reasonable to compel a defendant, who knows nothing, and has heard nothing on the subject, except from the plaintiff's bill, to declare what his opinion or belief is of the plaintiff's veracity. It is sufficient for him to say, that he does not know, nor has he heard or been informed of, the facts charged in the bill, save by the bill itself; and that he, thereupon, leaves the plaintiff to make proof of these charges as he shall be advised. This exception is not well taken in another point of view, and one which was urged by the counsel for the defendant. The petition mentioned in the exception is set forth in the stating part of the bill as one of the facts composing the his- tory of the plaintiff's case. The contents of the petition are hot stated as distinct, independent facts ; but it is stated, that Bingham and *SifoA:es presented- a petition to the Circuit Court, containing such and such allegations. The exhibition of the petition is the only fact properly stated ; and all that the defendant could be called on to answer was, whether such a petition, with such contents, was not presented. He was not bound to answer to every fact stated in that petition, any more than he was bound to *answer to every fact contained [ * 299 j in the act of Congress, which is also set forth, at large, in the bill, or to answer to every allegation contained in the answer of Bingham and Stokes, to the bill filed against them in the Circuit Court, which answer is, also, substantially set forth in the bill, in this case. The petition, the act of Congress, and the answer of Bingham and Stokes, are all set forth, histor- ically, as matters of fact, in the stating part of the bill : the defendant was bound to answer to the fact of the existence of such documents, according to his knowledge, if he had any; if not, then according to his information and belief ; and if he had neither knowledge nor information, he was bound to say so, and no more. If the plaintiffs deemed the facts set forth in the petition of Bingham and Stokes, or in their answer, material to their case, they ought to have stated those facts, as facts distinct from the documents in which they were contained, and then they might have required a distinct and particular answer. 229 299 CASES IN CHANCERY. 1818. This first exception is, accordingly, overruled. .^-^-^^ The second exception is, that the defendant, by his an MORRIS swer, says he had heard that a commission of bankruptcy PARKER was i ssue( ^ m England, against John J. Waldo, together with his partners, Joseph Waldo and John Francis, and that he was declared a bankrupt ; but he does not state, according to his knowledge, information and belief, when the commission of bankruptcy issued, and when J. J. W. was declared a bankrupt. The third exception is nothing more than the second exception, in extenso ; and it would have given more sim- plicity to the case, if they had been consolidated. This exception is, also, that the defendant does not state, as to his information and belief, when John Jones Waldo was first declared a bankrupt, and what estate and effects he then had or claimed, and who were his assignees, and when, and to whom, his estate was assigned. [ * 300 ] *The bill sought discovery as to these facts, and charged that the defendant refused to discover when and where John Jones Waldo first became a bankrupt, who were his assignees, and to whom his estate was assigned, and when and by whom ; and special interrogatories were pointed to those facts. The only inquiry is, Has the defendant sufficiently an- swered as to those facts ? He says, he has heard, that a commission of bankruptcy was issued in England, against John Jones Waldo, together with Joseph Waldo and John Francis, all of whom were part- ners, as he has heard and believed, and carried on trade in England, under the firm of Waldo, Francis and Waldo, and that the two last were residents in England when the com- mission of bankruptcy issued, and John Jones Waldo was not in England, but in the United States, when the said commission issued ; that he never appeared, and was de- clared a bankrupt in his absence ; and as to the time when the said commission issued in England, or as to the pro- ceedings thereon, further than he has been informed and set forth aforesaid, the defendant is utterly and entirely ignorant, and, therefore, cannot set forth, or discover, more particularly than he hath herein before done, when and where the said John Jones Waldo first became a bankrupt, or what estate and effects he had, or claimed right or title to, or had or claimed any interest in, when he became a bankrupt, or who were chosen assignee or assignees of his estate and effects, or to whom, or when, or by whom, his estate and effects, rights, claims, and credits, were conveyed or assigned, &c. If the exception had been, that the defendant states thai 230 CASES IN CHANCERY. 300 he had heard that a commission of bankruptcy issued in 1818. England against Waldo, without stating his belief one way ^**-~^^~' or the other of that hearsay, the exception would have been MORRIS well taken. But that is not the point of the second or third P^ER exception. They do not find fault with the answer *in the r % QQI admission of the fact of a commission having issued. Such an exception would indeed have been too nice and hyper- critical ; for it is apparent, that the defendant, all along, assumes, and means to admit, the fact of the commission. The objection is, that he does not answer according to his knowledge, information, and belief, when such a com- mission issued, what the estate the bankrupt then had, and to whom and when it was assigned. But these exceptions are founded on erroneous deductions. The defendant does declare all he can or ought to be asked to declare, when he says that he is " utterly and entirely ignorant " of the time when the commission first issued, and what estate Waldo had, and when and to whom it was assigned. He avers his absolute ignorance of all these facts, and therefore cannot answer to them. He states what he has heard as to the com- mission, and so far there is no exception : he then says, " As to the time when it issued, or as to the proceedings under the commission, farther than he has before set forth, he is utterly and entirely ignorant." His ignorance is total as to the time, and it is equally absolute as to any proceedings other than those he has particularly set forth. After this, what use can there be in requiring a further answer? The defendant may, indeed, have acquired more knowledge since he put in his answer ; but this I am not to suppose. So, per- haps, by making inquiries in Boston, where he resides, and certainly by sending to England, he may, if required, gain the requisite information. But a defendant ought not to be required to obtain information, so as to meet the plaintiff's wishes, and thereby become his agent to procure testimony. He is to answer as to what he knows, or has been informed of, when called upon to answer ; and, certainly, if the de- fendant's mind remains with only his former knowledge and information, then it would be impossible for him to answer more particularly as to the time, and as to the other matters contained in the *exceptions, without the admission of palpable [ * 302 J perjury in his first answer. No person can be more anxious than I am to procure, to every proper inquiry in a bill, an explicit, frank and full answer ; and I am exceedingly jealous of every thing that looks like evasion. My mind, on this subject, was fully de- clared in Woods v. Worrell (1 Johns. Ch. Rep. 107.) But, on the Dther hand, I am not inclined to indulge in too much 231 302 CASES IN CHANCERY. 1818. severity of criticism in weighing the force of every word and v^^-v*^ sentence, in an answer, unless I perceive some design to evade PHEI.PS a sifting inquiry. My impression, on reading the present GREEN answer, is, that it is not liable to any well-founded objection as to the matters complained of; and the exceptions are, con- sequently, overruled. The question of costs is reserved. Exceptions overruled PHE.LPS against W. GREEN, and sixteen other De- fendants. If any doubt arises on a bill for a partition, to the extent of the undi- vided rights and interests of the parties, the usual course is, to direct a reference to a master to inquire and report on them, as the estate and interest of the parties must be ascertained before a commission is awarded to make partition. But where the title is suspicious, or liti- gated, it must first be established at law before this Court will in- terfere. Where the plaintiff's right to one undivided moiety was admitted by all the defendants claiming the other moiety, but they differed among themselves as to their titles and interests, some of the defendants claiming the whole moiety in fee, and the others claiming and enjoy- ing separate portions of it, and asserting a freehold estate therein, the Court ordered partition to be made between the plaintiff and all the defendants, aggregately ; dividing the premises into two equal moieties, so as to give one moiety to the plaintiff in severally, and -leaving the other moiety to be divided between the defendants, on a further ap- plication to the Court, when their conflicting claims should have been established at law; the plaintiff, in the meantime, to pay his own costs of suit, and the expenses of the commission, reserving the ques- tion as to the defendants' proportions of costs, until such further ap- plication. January 31. BILL for the partition of land. The plaintiff stated that, * 303 J being seised in fee of an equal and undivided moiety *of lot No. 2, in the second allotment of the Oriskany patent, con- taining 740 acres, he, on the 12th of September, 1803, took possession of the westerly half part of the premises, the easterly half being in possession of some or all of the defend- ants. That he has since continued in possession of the westerly part, and made great improvements thereon. That there are various conflicting claims as to the other moiety of the lot. That Joseph Winter was seised thereof, in trust foi Patrick Heathy, who, by doed, dated August 8, 1806, re- 232 CASES IN CHANCERY. 303 leased his right to Temperance Green, for her life, with power, 1818. by her will, to appoint uses and trusts among her nine chil- x - ^- N/ ^ fc _ x dren, defendants. That two of the children are infants. PHELPS That by a decree of this Court, of the 5th of October, 1815, GREEN J. W. was ordered to release to Mary and Henry Green, in fee, and in trust, &c., all the lands held by him, in trust, &c. That the six. defendants last named severally possess parts of the eastern half of the lot, claiming the same in their own right, as tenants in common with the plaintiff. That all the defendants possessing the eastern half have made extensive improvements. That partition of the lot can be made so as to save the plaintiff his improvements, and do justice to all the persons interested. That the defendants refuse to come to. a parti- tion, and the six last-named defendants refuse to show their title deeds, and the plaintiff is uninformed of their interests in the lot. The plaintiff prayed, that all the defendants may state what interest they have in the lot ; that the last six may produce their deeds under which they claim, for the inspec- tion of the Court, and that the lot may be decreed to be di- vided between the plaintiff and such of the defendants as have an interest therein,- so as each one may have his im- provements, if the lot can be equitably divided in that man- ner ; that a commission may issue for that purpose ; and that all proper parties *may join in executing to each other all ne- [ * 304 ] cessary deeds and conveyances, &c. The answer of William G. and Temperance G., and their children, admitted all the facts stated by the plaintiff, and consented to a partition, claiming the other undivided moiety, and stating, that H. G. and M. G. were seised thereof, in trust, &c. That the six defendants last named are in possession of their moiety, but that they have no right or title. The answer of five of the other defendants admitted the title of the plaintiff, but set up an estate for three lives, as to 200 acres, in their several possessions. They denied all knowledge of the title of the other defendants, and consented to a partition, whenever the Court should determine their re- spective rights. The answer of the last defendant admitted the plaintiff's title, and set up a life estate in 150 acres, in his possession, and consented to a partition, &c. General replications were filed to the answers ; but MO witnesses were examined on either side. S. Ford, for the plaintiff. Gold and Sill, for the defendants, W. and T Green and their children. VOL. III. 30 233 304 CASES IN CHANCERY. 1818. PHELPS W. A. Duer and H. R. Storrs, for the six other defendants GREEN. THE CHANCELLOR. When the question arises on a bill for a partition, as to the undivided rights and interests of the parties, the usual course is to direct a reference to a master to inquire and report. The Court must first ascertain the estate and interest of the parties respectively, before the commis- sion to make partition can be awarded. This course was followed in Agar v. Fairfax. (17 Vesey, 533.) But this is [ * 305 ] a peculiar case, and that course cannot *well and safely be pursued. The plaintiff's right to an undivided moiety of the lot is admitted, and all the defendants are consenting to a partition, so far as respects the division of the lot into equal moieties. The dispute is between the defendants, as to their title and interest to the other moiety. Six of the defendants are in possession, claiming and enjoying separate portions of that moiety ; and they set up a freehold .estate in the same The remaining defendants, who are not in possession, claim the whole of that moiety, by a present vested interest in fee. It is not proper that such a controversy should be tried by a reference. It is a question of legal title, and should be settled at law. In Wilkin v. Wilkin, (1 Johns. Ch. Rep. 111.) it was understood, that if the title was doubtful, or disputed, it must be first established at law, before partition was to be made ; and in that case the question was referred to a Court of law. Partition is matter of right where the title is clear, but not otherwise. If the title be suspicious, a Court of equity, as the vice-chancellor observed in Baring v. Nash, (\Vesey and Beames, 557.) may well pause in directing par- tition. The reference seems to apply, not to the case where the title is litigated, but to cases of doubt and difficulty, as to the extent of the undivided interest of the respective claimants. It appears to me, therefore, that, in this case, the partition ought to be confined to the right of the plaintiff, and to that of the defendants, considered aggregately ; and that, as to the conflicting claims between the defendants, they ought to be settled at law before any turther partition be made. The costs of the partition must, in such case, in the first instance, fall upon the plaintiff; for, until the rights and interests of the defendants are ascertained, they cannot justly be called upon to contribute. The English rule as to costs on partition seems now to be, (17 Vesey, 558.) that no costs are given until the commission ; and that the costs of issuing, execu- ting, and confirming the Commission, are borne by the parties, in proportion to the value of their respective interests, and ^ Costs on par- that there should be no costs of the subsequent proceedings. But the practice in this Court is, to charge the costs of the 334 306] titicn. CASES IN CHANCERY ,306 suit upon the parties respectively, in proportion to the value 1818. of their respective rights ; and this rule is adopted by analogy s^^-s/-^/ from the statute, which gives the like costs on the proceeding PHELPS in partition in the courts of law. GREEN A decree was accordingly entered, declaring that, " it ap- Decree. pearing, by the admission of all the defendants, that the plain- tiff is entitled, in his own right, in fee, to one equal undivided moiety of lot No. 2, in the 2d allotment of Oriskany patent, and that he has been in possession of the westerly half of the said lot since 1803, and has made valuable improvements thereon and it further appearing, that the other equal un- divided moiety of the said lot is claimed by the several de- fendants, who set up a title to unequal interests, and advance conflicting claims, inasmuch as the defendants Mary Green and Henry Green claim a present interest in fee to the whole of the said moiety, in trust, &,c., and inasmuch as the six de- fendants last mentioned in the bill claim to have freehold estates, or other interests, in and to the said undivided moiety ; and it further appearing, that the six defendants aforesaid are in possession, in pursuance of their claim, of this easterly half of the said lot, and have made valuable im- provements thereon, and that as between each other there are no conflicting claims either as to title or possession ; and inasmuch as all the defendants consent to a just and equitable partition, quantity and quality relatively considered, exclusive of improvements, and the eleven defendants first named in the bill expressly consent that the westerly half of the lot be allotted to the plaintiff, according to a just partition as aforesaid : Ordered, fyc., that partition of the lot be made into two equal moieties, by metes and bounds, quality and quantity relatively considered, exclusive *of improvements, [ * 307 j and that one moiety be assigned to the plaintiff; and if it can be done consistently with a just and equal partition as aforesaid, that the lot be so divided as that one moiety shall include the improvements and possession of the plaintiff, and that such moiety be assigned to the plaintiff. Ordered, also, that a commission issue, &c., and that the moiety allotted to the plaintiff be held and enjoyed by him in severalty, and that, when the conflicting claims of the defendants shall have been settled at law, they be at liberty to apply to this Court, on the foot of this decree, to have further partition of the other moiety of the lot, according as their legal rights shall appear; and that the question as to what proportion or part of the costs ought to be borne by the defendants or eitner of them, be reserved until such application ; and that, in the meantime, the plaintiff pay his own costs of this su t, and the costs of executing the said commission. 235 CASES IN CHANCERY. 1818. <*~\^~^ M'KlNNON v. THOMPSON, February 5 308 M'KINNON against THOMPSON and others. A testator must have a legal or equitable title in the land devised, at th time, otherwise nothing passes by the devise. A subsequently-ac- quired title will not pass by it. Where a devise fails for want Of title in the devisor, the devisee wil. not be relieved out of other parts of the estate, though the devisor had a judgment which was a lien on the land. ON the coming in of the report of the master in this cause, before whom the defendants were decreed to account, a question was raised on the report. It appeared that the tes- tator, by his will, dated the 12th of March, 1806, after de- vising several parts of his real and personal estate, added the following clause : " I do will and direct, that the rents, issues and profits of my house and lot of ground in * Mulberry street, now under lease, shall be received by my executors herein- after named, until the determination of said lease, in what- ever way the same may be determined, and such rents, issues and profits shall be applied to the maintenance and educa- tion of my said grandchildren, John and Catharine, and after the determination of said lease, the said house and lot shall be sold by my executors hereinafter mentioned, at such time and in such manner as they may deem expedient, who shall make such deeds, releases, or other assurances in the law, to the purchaser or purchasers thereof, as may be advised ; and the avails thereof I do direct them to pay to my said grandson John and granddaughter Catharine, or the survivor of them, when they shall severally attain the age of twenty-one years ; and in case of the death of my said grandson and granddaughter, without leaving lawful issue, that the avails shall be paid to my said nephew, and the children of John Reid, before mentioned, equally, and their assigns." In a subsequent part of the will, the testator made this residuary devise : " I do will, bequeath and devise all the residue of my real and personal estate, to my son Neill, and my grandchildren John and Catharine, their heirs and assigns, and to the survivor and survivors of them equally." The facts relative to the house and lot above mentioned, appeared, from the master's report, to be as follows : On the 30th of March, 1806, the testator was seised in fee of the said house and lot, and on that day, conveyed the same to his daughter, the wife of Ignatius Redmond, in fee ; that on the 12th of August, 1809, Redmond confessed a judg- ment to the testator, to secure the payment of a debt of 2,500 236 CASES IN CHANCERY. 308 doJars ; that nothing was ever paid upon the judgment ; that, 1818. -)ii the 12th of October, 1809, Redmond and his wife duly ^*~^~*^ conveyed the house and lot to George White, who, on the M'KINNON 13th of October, 1809, reconveyed it to Redmond, in fee; THOMPSON. that, *on the 28th of October, 1809, a mortgage on the lot r * QQQ i from Redmond and wife to J. Kelso. to secure 750 dollars, was registered, and the mortgage debt remained unsatisfied ; that Redmond's wife died the 26th of October, 1809, and Redmond himself on the 14th of February, 1810; that, after Redmond's death, the testator took possession of the house and lot, and received the rents, and continued in possession until his death ; and that, shortly before his death, which was in 1816, he leased the house and lot for 14 years. The plaintiff is the testator's son mentioned in the residu- ary clause ; the defendants are the executors ; and the bill was for an account. By a decree of the first of September, 1817, the defendants were directed to account to the plain- tiff for one third of the residue of the real and personal estate, and upon such accounting, the master considered the judg ment debt against Redmond as personal estate. A question was raised, between the parties, upon this re- port, to whom belonged the judgment debt, or the house and lot on which it was a lien, at the time of the will. Van Wijck, for the plaintiffs, contended, that the defend- ants must account for the judgment debt against Redmond, as part of the residuary personal estate, of which one third was given to the plaintiff, and the residue to the two grand- children ; and that the devise of the house and lot, or the proceeds of the sale thereof, to the two grandchildren, was null and void, inasmuch as the testator had no title to the house and lot when the devise was made. Baldwin, for the devisees, contended, that the intention of the testator was clearly declared, that the house and lot, which the testator must have substituted for the judgment debt charged upon it, and considered it as his own, should go exclusively to the grandchildren. *THE CHANCELLOR. The devise of the house and lot was [ * 310 ] null and void, inasmuch as the testator had no legal or equi- table title to it at the date of the devise. The judgment debt was a lien, but gave no title ; even that lien could not have been enforced by execution against the land, except on a deficiency of goods and chattels. Redmond may have had personal property, at the time, sufficient to satisfy the judg- ment. But that circumstance is not material. A devise is 237 310 CASES IN CHANCERY. 1313 in the nature of a conveyance, or an appointment of a specific ^^-^x-*^ estate, and nothing passes, but what the testator owned at M'KINNON the time of the devise. No rule is better settled than that THOMPSON ^Inch declares, that the testator must have a legal or equitable title in the land devised at the making of the will, or nothing will pass. A title subsequently acquired is of no avail. All that Courts of equity have done, is to consider an equitable interest founded on articles for a purchase, and which equity would enforce, as real estate which will pass by a devise. But here it is also requisite, that the agreement to purchase should exist prior to the devise. (Longford v. Pitt, 2 P. 7Fw. 629. Greenhill v. Greenhill, Free, in Ch. 320. Pot- ter v. Potter, 1 Fesey, 437. Lord Rosslyn, in 2 Vesey,jun. 427. Lord Eldon, in 7 Fesey, 147, 399.) Where a devise thus fails for want of a title at the time, the Court cannot re- lieve the devisee out of other parts of the testator's estate. A deficiency in a specific legacy (and every devise is neces- sarily specific) is never supplied in that way. The gift to- tally fails. (Ashton \.Ashton, Cases temp. Talbot, 152. 2 Fesey, 569. S. P.) Nor can the devise of the house and lot be considered or allowed to operate as a bequest of the judgment debt. There is no color for such a construction, and no necessary connection between the one subject and the other. If that was the testator's intention, it may be said quod voluit non dixit. The plain result of the case is, that the devise, as to [ * 311 1 the house and lot, is void, and the defendants *must account to the plaintiff for the one third part of the judgment debt. Decree accordingly. CASES IN CHANCERY. 31J 1818. SCHOONMAKER against GlLLETT. GlLLETT. On affidavits of a breach of an injunction to stay waste, and of personal service of a copy of the affidavits, and notice of the motion, an at- tachment was ordered to bring up the defendant to answer for the contempt. THE defendant was, on the 7th of January last, served February 10, with an injunction to stay waste. On the 2d of February inst.. he was served with a notice on the part of the plaintiff, that the Court would be moved on the 9th inst. that he stand committed to prison for breach of the injunction ; and he was at the same time served with copies of the affidavits of Charles, Ely, and of the plaintiff, stating, that, on the 3d inst., a son of the defendant was cutting and felling trees on the prem- ises, in sight of the defendant, who saw it, as was believed ; and that the defendant, at the same time, was requested not to cut the timber, and replied, that he would cut the timber. H. Bhecker, on the above affidavits, moved for an attach- ment to bring up the defendant. He cited 2 Harr. Pr. 268 t Neivland's Prac. 101. No opposition was made. THE CHANCELLOK, on the authority of the case of Anger- stein v. Hunf, (6 Vesey, 488.) and on the due service of the affidavits and notice, ordered, that an attachment issue to the sheriff to bring the defendant into Court, to answer for the contempt. CASES IN CHANCERY. . LIVINGSTON and others against NEWKIRK and his Wife. After-acquired lands do not pass by a will previously made. An equitable interest in land, founded on articles of agreement for the purchase, will pass by a subsequent devise ; and if there be no de- vise, it will descend to the heir ; and the executor must pay the pur chase money, for the benefit of the heir. Where a deed to the testator comes into possession of the executor, who does not produce it, or account for its loss, the most favorable intend- ment, as to its contents, will be made for the benefit of the heir. If an executor or administrator pays debts out of his own moneys, to the value of the personal assets in hand, he may apply those assets to reimburse himself; and by such election, the assets become his own property. If an executor be directed to sell land, it seems, that he cannot retain it, as he may personal assets. But if the personal assets prove insufficient, and the executor has paid debts, out of his money, to the value of the land, he may, if the land is ordered to be sold, retain the proceeds for his own indemnity. The order of marshalling assets, towards the payment of debts, is, to apply, 1. The general personal estate ; 2. Estates specifically and ex- pressly devised for the payment of debts, and for that purpose only ; 3. Estates descended ; 4. Estates specifically devised, though generally charged with the payment of debts. January 2G THE bill, the 26th of November, 1812, stated, that letters and ebmary paieni were grante d t h e 8th of July, 1790, to John Earnest Pier, for lot No. 6, in the township of Marcellus. In 1791, Pier sold the lot to Peter Schwjlcr for thirty pounds, and by writing under his hand and seal, sold and conveyed, or cov- enated to sell or convey, the said lot, for the consideration aforesaid, to P. S., in fee, and delivered the deed to him. P. S., on the 24th of November, 1786, made his will, and de- vised the residue of his real and personal estate, after payment of his debts, to his wife, Gertrude, in fee. P. S. died with- out issue, on the 4th of January, 1792, without altering or republishing his will. His wife, as sole executrix, proved the will, and took possession of all the estate, and his books and papers, among which was the deed, or covenant, as the plaintiffs alleged, for the said lot. The plaintiff C. L. is [ * 313 ] the only *sister of P. S., the testator, and J. C. and W. C. his only brothers and heirs at law. The plaintiffs alleged, that G. S., the widow, and executrix, for the fraudulent purpose of defeating the plaintiffs, as devisees, obtained a release from Pier to her, for the said lot, and afterwards destroyed or suppressed the said deed or covenant to the testator ; that 240 CASES IN CHANCERY. 313 she, in 1794, married the defendant N., who fraudulently ad- 1818. vised or approved the measure. The bill prayed for general ^**~^-+^/ relief, &.C. LIVINGSTON The defendants, in their answer, admitted the letters patent, and that an instrument in writing, of some kind, was executed between Pier and P. Schuyler, relative to the lot, but they did not recollect, and had no means of ascertaining, the precise date, or the nature and terms of the instrument ; and they believed that the instrument was lost or destroyed, but they were ignorant when or how it was destroyed, or what had become of it. The defendant G. (Mrs. JV.) said that, soon after the death of P. S., she found the said instru- ment among his papers, and showed it to C. J. Y., and re- quested his opinion on it, and he informed her, that it was of no effect ; that she thereupon, at the solicitation of Pier, on the 31st of August, 1792, agreed with him for the pur- chase of the lot, and took from him a conveyance in fee for the consideration of thirty pounds, which she paid to him. That when she married P. S., she was seised of a large real estate, which he sold, during the coverture, and applied the proceeds to his own use ; and that the land so sold exceeded in value the estate of which P. S. died seised, after payment of his debts. That P. S., who died the 4th of January, 1792, having duly made his will, dated November 4, 1786, on his death-bed directed the defendant N. to transcribe his will, in order to a republication of it, and the defendant brought the will to P. S,, and told him that it was as fair as he could write it; that, at the request of P. S., he read it in the presence of three credible witnesses, and P. S. declared it to be all right; that he *meant that his wife should have [*314] all his estate ; and directed N. to put the will under cover and preserve it. On her examination, taken under the act to perpetuate testimony, on the 1 9th of March, 1812, she said, that she did not know whether the writing from Pier was a covenant or a deed ; but after her husband's death, she took it to C. /. Y., who told her that she had not better pay P., unless he would execute a deed. That she offered P. the writing, when he executed the deed to her, and he left it with her. That she paid P. thirty pounds in flour, wheat, and money, and that he executed the deed to her, in pursu- ance of the original agreement, which was in 1791. The defendants, in their answer, stated, that they had paid debts of the testator, P. S., to the amount of 8,951 dollars, 4 cents, of which a schedule was annexed, and had borrowed money, on their credit, for that purpose, for want of assets ; and they believed that there were other debts remaining unpaid, and unascertained. That the whole real and personal estate VOL. III. 31 241 314 CASES IN CHANCERY. 1818. of P. S. was not equal to the debts so paid. That on the \^*-^~*^/ 29th of September, 1808, they sold the said lot in parcels, to LIVINGSTON six different persons, for 2,900 dollars, and had given deeds, NEW*" i and taken bonds and mortgages for the purchase money, about half of which had been paid ; and that this was done with the knowledge of James Cochran, one of the plaintiffs, before whom, being then a master in chancery, the mortgages were acknowledged. Several witnesses were examined on the part of the defend- ants. Pier testified that he sold the lot to P. S. for 30 pounds, a small part of which was paid in cash, and the residue in grain, from time to time, and that he executed a writing under seal to P. S., which he understood to be a deed for the lot. That, after the death of P. S., being told that the writing he had given was not good, he called on the defendant G. N., and offered to execute a good deed; and [ * 315 ] another deed was drawn, which she executed. *That neither of the defendants paid him any thing for this deed, nor has he received any consideration for the lot, other than what was paid to him by P. S. ; that he has never seen the deed by him to P. S. since it was executed ; that he executed the second deed because he was told the first was not good. A. G., a witness, testified, that the real estate of P. S., at his decease, was worth about 4,000 dollars, and his personal estate 823 dollars ; that the real estate consisted of a farm of 200 acres, in Palatine, in the county of Montgomery. By the will of P. S., his debts were charged on his real estate, and his widow, who was sole devisee and executrix, was authorized to sell it. J. V. Henry, for the plaintiffs. Van Vechten, contra. THE CHANCELLOR. 1. The first question upon this case is, whether the plaintiffs were not, upon the death of Peter Schuyler, entitled, as his heirs at law, to lot No. 6, in Marcellus. Lands ac- The will of the testator was made on the 24th of November, ?a U tor e , d aAer a ma- 1786 > and ^ was not afterwards altered or republished with king' his will, the solemnities required by law. The will, therefore, did not, " 1 It. and could not, affect lands subsequently acquired. non ton p. 310. M'Kin- It appears from the pleadings and proofs, that the testator, ' omp ~ after making his will, purchased, or contracted to purchase, the lot in question, and that he received from John Earnest Pier, the original patentee of the lot, either a conveyance in fee, or a covenant on the part of Pier to convey the lot, foi 242 CASES IN CHANCERY. 315 a valuable consideration. According to the testimony of 1818 Pier, a formal deed in fee was executed and delivered by ^,^-v^-^x him to Schuyler, and the consideration of 30/. paid. The LIVINGSTON defendants admit, that an instrument in writing of some kind J\* EU V KU was executed and delivered, but they cannot *recollect the r # gig i nature or terms of it. The defendant Mrs. Newldrlc, who was the widow of the testator, and his sole executrix, admits, that she found such an instrument among the papers of the testator, after his death, and that she took it to counsel to obtain an opinion thereon. She further admits, that the in- strument is lost or destroyed, though she cannot tell when or how, and that she took a deed in fee to herself from the patentee, and paid him the original price. The patentee says, that he re-executed such a deed to her, because he was told the first writing was not sufficient ; but he denies that he ever received any further consideration, or any payment from her. In an examination of Mrs. Newkirk, taken de bene esse, under the act of the 19th of March, 1812, to per- petuate testimony, she admits, that when Pier executed the deed to her, she offered him the original writing, but that he left it with her. Whether the writing in question was a conveyance of the An equitable lot, or only an agreement to convey, does not appear to me funded "on^ to be material. An equitable interest founded upon articles tides of agree- for a purchase, and which a Court of equity will specifically m u e r " has ^ r ^jj enforce, is real estate which will pass by a devise made sub- pass by a sub- sequently ; and if there be no such devise, will descend to anTIf ^here^be the heir, and the executor must pay the purchase money for no devise, it will the benefit of the heir. (Greenhitt v. Greenhill, Prec. in Ch. c . end an ^ 320. Longford v. Pitt, 2 P. Wms. 629.) But in this case I executor must have a right to conclude that an absolute conveyance in fee ^ase money for was executed by Pier to the testator. Here was a writing the benefit of which came to the possession of the defendants, and upon the heir- which the executrix took advice, and which writing stood in Where an m- the way of her interest under the will, and which she does leaJ^being" eT not now produce. She does not account for its loss. I will, ther a d eed for therefore, give the most favorable intendment as to its con- ta"or, ' tents, for the benefit of the heir. This is the settled doctrine nant to convey in the books ; and it is founded on the maxim of law, that his "exeaarut omnia presumuntur in odium spoliatoris. (Hudson v. Arundel, ajld devise^, Hob. 109. 2 P. *Wms. 748. 5. C. Dalston v. Coatsworth, 1 P. Wms. 731. Lord Hardwicke, in 1 Vesey, 235.) The exist- ence of the instrument, and which Sir Joseph Jekyll said, in she . does nof r TI TT? mj^-> mf.i-v / i 11 ^i produce, nor ac- 2 r. Wms. 748. 750, was fundamental to a decree on the count for its point, is admitted. We have also the direct and positive lo ^- the , Coi ' n ft i i i will make the testimony of the grantor, that the instrument was not merely mos t favorable intendment, aj to its contents for the benefit of the heii\ 243 317 OASES IN CHANCERY. 1818 an agreement to convey, but an actual conveyance of the lot ^^-v-^y My conclusion, accordingly, is, that lot No. 6, in MarceUua, LIVINGSTON descended, on the death of Peter Schuylcr, to the plaintiffs, NEWARK. as n ^ s heirs at law, and that they became seised in fee. 2. The next point in the case is, upon what principles, and to what extent, the defendants are to account to the plaintiffs for the value of the lot. By the will of the testator, he directed that his debts should be paid out of his personal estate, and if that should prove deficient, that the deficiency should be supplied out of his real estate ; and the executrix was authorized to sell so much of it as should be requisite for that purpose. He then gave all the residue of his estate, real and personal, to his wife, in fee, and made her sole executrix. The defendants state, in their answer, that the debts against the estate, and paid by them, amounted to 8,951 dollars and 4 cents, of which they have annexed a list ; and that they have expended large sums of their own money for that purpose. They state further, that the whole real and personal estate of the testator was not equal to the debts which they have paid ; and they have furnished proof that the per- sonal estate of the testator did not exceed 823 dollars, and that the real estate, exclusive of the lot in question, did not exceed 4,000 dollars in value. They state further, in their answer, that upon establishing the title of the executrix under the patentee, by a trial at law, they sold the lot in parcels for 2,900 dollars ; and they have given proof of such sales, and of the amount of the consideration given for one of the parcels. [ * 318 ] *If a reference is to be had to ascertain these facts with more precision, it is previously necessary to determine to what extent the executrix is to be held responsible. if an execu- The rule is well established, that if an executor or admin- irator' pay"' out istrator pays, out of his own moneys, debts to the value of of his own moii- the assets in hand, he may apply the assets to his own use, vaTueof theVe^ tow& rds satisfaction of the moneys he has expended. (Ploivd. sonai assets in 186. a. Dyer. 2. a. 187. b. S. Touch. 454. 464. 1 Sound. 307. aStieas"^ Off. of Mrs, p. 89, 90.) The assets, by such election, be- to his own use come absolutely his own property. This rule has always fectfo'n 8 of Sa n;s ^ een applied to the personal assets ; and it is said (Dyer. moneys so ex- 2. a.) that if the executor be directed to sell the lands, he C v nd s e u d c 'h f]" d ; cannot retain it in hand, as he may personal assets, because the assets the direction of the will is that it be sold. This case seems to P ut tne distinction altogether upon the testator's intention ; if an execu- and if the personal assets prove deficient, and the executoi tor be directed to sell land, it seems that he cannot retain it as ne may personal assets. But if the personal assets should prove in sufficient, and the executor has paid out of his own moneys debts to the value of the land, he may, i! the land is ordered to be sold, retain the proceeds for his indemnity. 244 CASES IN CHANCERY. 318 pays out of his own moneys, to the value of the land, there does not appear to be any solid ground for the distinction. If this Court was to direct the lands to be sold in such a 'case, it would certainly allow the executor to retain for his indemnity. The object of the will, and the ends of justice, are equally attained, if the value of the real as well as of personal assets, be faithfully applied in discharge of the debts. But in this case, the lot in MarceUus was sold, as soon as it was cleared of adverse claims ; and the plaintiffs have no further interest in the question than to see to the due appli- cation of the proceeds of that sale. If the executrix was bound to apply, in the first place, the lands devised to the discharge of the debts, or if the lands devised and the lands descended were to bear, equally and ratably, the charge of the debts, then the inquiry before a master will be necessary to ascertain, with certainty, the amount of the debts, the payments which have been made, and the value of the lands devised. If the allegations in the answer should turn out. to be *supported by proof, as to points where further proof is necessary, then there will be nothing coming to the plaintiffs, and the object of their bill will fail. It cannot, for a moment, be maintained, that the plaintiffs are entitled to hold the land descended, or the pro- ceeds of that land, free of the charge of paying the debts. I am of opinion, that the land descended to the plaintiffs is to be applied to the discharge of the debts, on failure of the personal estate, before the lands devised to the widow ; and that the latter are to be applied, only so far as may be requi- site to make up the deficiency. The order of marshalling assets towards payment of debts, is to apply, 1. The per- sonal estate ; 2. Lands descended ; 3. Lands devised. This is the general course, and every departure from it may be . , s , '. 11 considered as an exception to a general rule. This order of marshalling assets was declared by Lord Talbot, in Pitt v. Raymond, (cited in 2 Aik. 434.) and again in Chaplin v. Chaplin, (3 P. Wms. 364.) In the latter case, he held, that where the testator was indebted by bond, and devised part of his real estate to his three daughters, and suffered another part to descend undevised to his son and heir at law, that the lands descended must be liable for the bond debt, before the land devised ; for by applying the land devised to pay the debt, the will would be disappointed. It is too well settled to be questioned, that the personal estate is to be first applied to the payment of debts and legacies, and that a mere charge on the land will not exonerate the personal estate, nor any thing short of express words, or a plain intent in the will of the testator. (Ancaster v. Mayer, 1 Bro. 454. JVatson v. Brickwood, 9 Vesey, 447.) 245 IS 18. LIVINGSTON NEVV K, RK [ * 319 ] The order of payment of debts ' , L , TI ' e personal estate ; 2. Lands de- 319 CASES IN CHANCERY. 1818. The doctrine I have stated is not only thus well supported x_^~. ^~**~/ by authority, but it has been applied to cases precisely like LIVINGSTON the present. NEWKIRK. In Galton v - HancocTc, (2 Afk. 424. 427. 430. Ridge- \ * 30 I w^' 5 *Rep- 301. S. C.) the testator, seised in fee of an estate, borrowed money upon mortgage, and then made his will, anu " after all his just debts were satisfied," he devised the estate mortgaged, and also an estate for lives, to his wife, and made her sole executrix. He, after making his will, purchased the reversion in fee of the life estate, and died. The bill was filed by the heir at law, against the widow, insisting that the estate descended was not liable to pay the mortgage debt. But Lord Hardwicke decreed otherwise. He decided, after much consideration, and on a rehearing, that the widow was entitled to have the mortgage upon the estate devised to her exonerated out of the real estate descended to the heir. Every devisee was said to be in the nature of a purchaser, and the heir was not entitled to contribution against a pur chaser. He thought " the case not hard upon the heir, be- cause the testator clearly intended to give away the whole estate from the heir, and because it was an accident merely, which threw a part of it upon him, viz. the ignorance of the testator that it was necessary, after purchasing in fee of the estate, pour outer vie, to publish the will, to make it to pass to the widow. This case is, in many respects, strikingly analogous to the one now under discussion. The difference is, that, in Galton v. Hancock, the real estate was not expressly made chargeable with the debts on failure of the personal ; nor was the exec- utrix authorized to sell it. But the devise there was after all his just debts were satisfied, and part of the estate devised was charged with a mortgage debt ; yet the burden of discharging that very debt was thrown upon the land descended, in exon- eration of the land devised. The case of Wride v. Clark, decided by Sir Thomas Sewcll in 1765, (Dickens, 382. 2 Bro. 261. note,) approaches still nearer, in all its circumstances, to the one before me. The testator, in that case, charged all his real and personal estate [ * 321 ] with the payment of his debts, and *subject thereto ; he devised his real estate to his wife, in fee, and appointed her sole ex- ecutrix. He afterwards purchased other lands, which de- scended undevised to the heir at law. The debts exceeded the personal estate, and the master of the rolls decided that the descended estate should be applied previous to the de- vised estate. So, in Dames v. Topp, (2 Bro. 259. note,) the same rule received the sanction not only of the same mastei of the rolls, but of Lord Thurloiv. In that case, the testator j seised of real estates in fee, subject to a mortgage, by his wil 246 CASES IN CHANCERY. 32J made all his real and personal estate chargeable with tLe pay- 1813. ment of his debts and legacies, and, subject thereto, devised -^^-x^^y his real estates to L., and made him executor. After making LIVINGSTON the will, the testator purchased other real estate, and died, NEW-KIRK leaving two sisters, to whom the real estate, purchased after the will, descended. The master of the rolls directed that the persona] estate not specifically bequeathed be first ap- plied in payment of the debts and legacies, and that the de- ficiency due to the mortgagee and other specialty creditors, should be raised out of the real estate descended ; and if that was insufficient, then the deficiency to be made good out of the real estates devised and charged with the payment of debts. This decree, on appeal, was affirmed by the lord chancellor. It would be in vain to search for cases more completely applicable ; and it is impossible to distinguish the present case, in any material degree, from those which have been cited, and which must be regarded as the established law of the Court. In Donne v. Lewis, (2 Bro. 257.) which was subsequent to the above cases, an exception was made by Lord Thurlow to the operation of the general rule, under special circum- stances, forming that exception, and which circumstances have no existence in the present case. The testator devised lands in trust, to sell and pay debts ; and in case the trust estate should not be sufficient, *that [ * 322 ] the deficiency should be charged on the five several estates specifically, and very particularly, devised to his five children, each estate to bear one fifth part of such deficiency. The testator purchased another estate after making his will, and died. The question was, whether the testator was to be consider- ed as giving an absolute direction out of what fund the pay- ment should come, or merely as arranging the property he had at the time of making the will, without any view of ex- empting 01 favoring any property he acquired afterwards Lord Thurlow went at large into the consideration of the Lord Thur- subject, and reviewed the preceding cases. He said his idea t^'the'order 1 ^ of the order of affecting assets, was, 1. The general person- marshalling ' of al estate; 2. Ordinarily speaking, estates devised for the pay- Swmei* ' f? ment of debts ; 3. Estates descended ; 4. Estates specifically debts, devised, even though they are generally charged with the payment of debts. The chancellor brought the case then before him under the second head ; and it is evident that he meant to be under- stood, by estates, under that head, estates specially devised, for the express and particular purpose of paying debts, and 247 322 CASES IN CHANCERY. 1818. n t merely estates generally charged with the payment of v^*-v^^x debts ; for those estates fell under his fourth division. He LIVINGSTON declared, in the case, that the rule was settled, that a bare NEWKIRK. charge of the debts upon the land would not do ; and he said the only question that could reconcile all the cases was, Were the terms of the will only a general indication, that the testator meant to subject his property to his debts, or did he mean more, and to make a particular provision for the pur- pose ? In the case before him, the will went further than in Davies v. Topp. The testator meant to charge an estate specifically, and that intention could not be executed, with- out exempting the estate descended ; and, therefore, his lordship, after admitting^ the authority of Wride v. Clark, and Davies v. Topp, decreed, that the debts must be paid out of the trust estate, and then out of the devised estates ex- ' * 323 ] pressly *and particularly pointed out in aid of the trust fund. The question in this case was truly between the descended estate and the trust fund, specially bequeathed for payments of debts ; for the testator had declared, that the deficiency of that fund should be supplied, by the contribution of the five chil- dren ; and, therefore, as to the point of the case, they were to be taken as one fund. This decision was no more than what Lord Hardwicke had declared in Powis v. Corbet, (3 Aik. 556.) that where a testator created a particular trust out of particular lands, and, subject to that trust, devised them over, the devisee could take no benefit but of the remainder ; and in such a case the heir at law stood in a better situation than the devisee. Since the time of Lord Thurlow, the question was brought before Lord Alvanhy, as master of the rolls, in Manning v. Spooner, (3 Vesey,jun. 114.) and all the authorities on the point of marshalling assets, as between the heir and devisee, were reviewed and discussed. In that case, the testator devised his real estate to trus- tees, to be applied " in payment of such of his debts and legacies as the residue of his personal estate should prove deficient in paying." After making the will, he purchased other lands, and died. The question raised was, whether the descended estate became liable for the debts before the appli- cation of the fund to arise from the devised estate under the trust in the will. The master of the rolls, in delivering his opinion, observed, that the question depended entirely upon the point, whether there was a specific gift of any part of the estate for the purpose of paying the debts, or whether it was only a general charge for the purpose. That the case of 248 CASES IN CHANCERY. 223 Donne v. Lewis was determined upon principles that had i313. been constantly acted upon since, and which must govern aF 1 s^^^-v^^x such cases. That the order of application to debts was, 1. LIVINGSTON The general personal *estate, unless exempted expressly, or NEWARK by plain implication ; 2. Any estate particularly devised for <- # 034 i the purpose, and only for the purpose, of paying debts; 3. Estates descended ; 4. Estates specifically devised. That fey* opinion oii the question, in every case, where the contest is between an t t ie same c i ues estate descended and an estate alleged to be provided for the debts, is, whether it be a general charge, or any part of the estate be selected, for the express purpose of paying the debts. That if part be selected for that purpose, that part is to be applied before the descended estate, whether the testator had the descended estate before he made his will or not. That Lord Thurlow, in considering the prior cases, was clearly of opinion, that the question was, whether the testator had select- ed any part of his estate, which it was his will should be first applied, or whether the charge was only to subject his estates to the payment of his debts. Taking this rule for his guide, Lord Ahanley held, in that case, that the real estate devised was specially appropriated as a fund to pay the debts, and for no other purpose, and that the heir was not to be called upon in that case, until the appropriated fund had become ex- hausted. This construction of the rule is in perfect conformity with the doctrine in all the preceding cases ; and the rule is stated with such accurate deduction, and with such clear pre- cision, as to remove all doubt on the subject. There is no contradiction among the cases. Lord Thurlow seemed to admit that they were all consistent with each other, and rested on one simple principle. The law on this point was, afterwards, brought into repeat- ed discussion before Lord Eldon ; and though he appeared to Lord Eidm subject the cases to criticism, and to suggest doubts and dif- p"i nt * he ficulties, and though some of his remarks are wanting in the requisite precision, he undoubtedly left the rule where it was settled by the former decisions. In Hanuood v. Oglander, (6 Vesey, 199. 8 Vesey, 106. S. *C.) the testator charged all his estates with the payment of [ * 325 ] his debts ; and subject thereto, he devised all his real estates to his wife for life, with remainders over in fee ; and he di- rected, that as soon after his death as conveniently might be, part of his real estate, ivith the exception of another part catted Canefield, should be sold for the payment of his debts, and that the devisees thereof should join in the sale. The principal question in the case was, whether the will was not subse- quently revoked, as to a part of the real estate called the fee- VOL. III. 32 249 325 CASES IN CHANCERY. 1818. farm rents ; and, if so, then another question was, whether *^r-^-^s these fee-farm rents, descending to the heir at law, would LIVINGSTON not be primarily applicable to the debts, as descended estates, NIWKIRK before estates devised. The chancellor was of opinion, that the will was partly revoked, and that the fee-farm rents descended to the heir, and were not to be first applied to the discharge of the debts. He understood Lord T/mr/oto's doctrine, in JJonne v. Lewis, to be, that, if there was any thing in the will that went beyond a mere charge, and pointed out a particular mode or means, it would save the descended estate. That Lord A1- vanley, in Manning v. Spooner, did not express the opinion of Lord Thurlow, and that, as he understood Lord Tkurlow, and the law ever since, the first fund applicable was the per- sonal estate not specifically bequeathed ; 2. Land devised for the payment of debts, not merely charged, but devised or ordered, to be sold ; 3. Descended estates ; 4. Lands charged with the payment of debts. That the distinction was between charging all the real estate with the debts, and proceeding so much farther as to propose the mode in which the debts were to be paid. In that case, he observed, the will charged the debts, first in general words, then in special words, and directed a sale, and expressly stated the parties who were to join in the sale. It was a devise, therefore, to persons, coupled with a devise to them for sale for payment of debts. He ad- mitted the distinction was thin, and seemed to doubt of its [ * 326 ] soundness ; *but being settled, he thought it better to abide by it. Some of Lord Eldon's expressions in this case appear to be too much at large ; and they would seem, on the first impres- sion, to control the opinion of Lord Alvanley, and to limit the doctrine in the former cases ; but when we come to attend closely to the facts upon which his lordship decided, it will be found, that there is no variation in the rule. The will here contained a special direction to apply a designated portion of the devised lands to the payment of the debts. The appro- priation was of a specific part, to the exclusion of another part. It was in exclusion also of the personal estate ; for the direction was to sell the part assigned for the debts, " as soon as conveniently might be after the testator's decease," and the parties in interest, as devisees, were directed to join in the sale. No doubt could well exist of the testator's intention, under such a special provision, and marked with this strong circumstance, that other real property which he had at the time was exempted from the application. Here was a crea- tion and designation of a particular fund for the debts, and the devisees of that fund wero made trustees for that purpose. Here ivas a devise of lands for the purpose of sale to pay 250 CASES IN CHANCERY. 326 debts, and the case, therefore, fell within the range of the ex- 1818. ception to the general order of marshalling assets, and which exception was admitted, as we have seen inPowis v. Corbet, Donne v. Lewis, and Manning v. Spooner. In Milnes v. Slater, (8 Vesey, 295.) Lord Eldon gave a still more mature opinion on the subject. The testator, in that case, directed that his debts and lega- cies should be paid out of his personal estate ; but if the same should prove deficient, he then directed that the deficiency should be supplied according to a particular provision for the purpose, in which, after giving some legacies and a devise of a life estate in part of his lands to his *wife, he devised all [ * 327 the residue of his real and personal estate to trustees, to raise, by mortgage thereon, a sufficient sum to pay the residue of the debts and legacies, and then to settle the same estate to cer- tain declared uses. The testator purchased other real estate after making his will, and died. One question was, whether the estates descended were applicable in ease of the estates devised. Lord Eldon said, that the true question, according to Lord Thurloiv, was, whether the testator meant only to behave honestly, which is all a general charge, imports, or whether, beyond that honest conduct in creating a general charge for the security of his creditors, he meant also to create a particular fund for payment of his debts. In Powis v. Corbet, a particular term was raised for the discharge of the debts, which was held sufficient to warrant the application of the lands comprised in it, before the descended estates. His lordship admitted, that the circumstance of the devisor having other estates which he does not touch, goes a great way to show, that by ordering the debts to be paid out of the devised estates, he does not intend the application of those which descended ; but he said, the case was very different where he had no land at the time of the devise, except the land devised, and afterwards, by descent or purchase, acquired other lands. He considered that, upon the authority of all the pre- ceding cases, the rule must now be considered settled, that whatever may be the ordinary application, if there be a real fund created for the discharge of debts, that will be applied first, when the question arises between the heir and devisee, either as to estates which the devisor had at the time, or which he acquired afterwards. He meant by a real fund created, the same as one selected, according to Lord Alvanley's expression ; and that it was " the creation of a particular fund " that entitled the heir to say the descended estate was exempt. He declared repeatedly that k was the ere ition or raising of a particular fund or interest for the debts that 251 328* CASES IN CHANCERY. 1818. required *that fund to be applied, in exoneration of the de- v^^-s^-^^x scended estate, and that such a. particular fund was created LIVINGSTON by the will in that case. ^ we test tne P resent case by all these examples, it will evidently appear, that there is no creation of any particular fund set apart for the debts, so as to form an exception to the general rule of this Court in marshalling assets. The will here went no further than to make a general charge of the debts upon the whole estate, real and personal, and to show that the testator meant to be honest, by charging the real estate with the debts, in default of the personal, and to clothe the executrix with the ordinary powers for that purpose. The direction was general, that if the personal estate should not be sufficient, the deficiency was to be supplied " out ol the real estate ; " and the executrix was authorized " to sell the same, or so much thereof as should be necessary to make up the deficiency." The direction was to her as executrix, and not a charge upon her as devisee. In her latter character, he gave her the residue of the estate, after the debts were paid, which was the same thing, in substance, as the devise in Galton v. Hancock, where the devise of the land was after all the just debts were satisjled, or the devise in Wride v. Clark, and in Davies v. Topp, which charged all the estate with the payment of the debts, and then, subject thereto, devised it. The general authority to sell in this case does not fall within the meaning of any expressions rather indef- initely used by Lord Eldon; for they were to be applied to the cases before him, where a special fund was marked out for the debts, and a duty thrown on the devisee, qua devisee, or trustee, to apply that particular fund. To allow this case to break in upon the general rule, which was established as early as the time of Lord Talbot, would be to unsettle and destroy that rule altogether. It would be to allow the heir (certainly, in this case, contrary to the testator's meaning ; for [ * 329 ] the ineffectual attempts to republish *the will, show clearly that he never meant to die intestate, or to withhold any part of his estate from his wife,) to impair or defeat the object of the testator's bounty. It results, then, from the rule which I have thus deduced from the cases, that the debts of Peter Schuyler are to be charged, 1. Upon his personal estate ; 2. Upon the lot No. 6, in Marcellus, which descended to the plaintiffs, and was afterwards sold by the executrix ; 3. Upon the estate devised to her. If any credit is to be given to the answer, and to the testimony of two of the witnesses, ( Gray and Beardsley,} the debts not only exhausted the personal estate, but, also, the 252 CASES IN CHANCERY. 329 proceeds of the lot ; and a reference to a master for further 1818 inquiries on the subject would be useless to the plaintiffs. ^^~-^~ L^ If it should appear, by the master's report, that the debts LIVINGSTON paid are equal to, or exceed, the value of the personal estate N v> and the amount of the proceeds of the lot, the bill will be dismissed. The plaintiffs may have a reference, however, if they wish, to pursue the inquiry, under the principles which I have laid down ; but it will be at the peril of costs. I shall, accordingly, declare, that the lot in Marcettus men- tioned in the pleadings, descended, as undevised real estate, to the plaintiffs, as heirs at law ; and that the defendants must account for the price for which they sold the lot, in 1808. That upon such accounting, they are to be charged with the value of the personal estate of the testator, which came to the possession of them, or either of them, and to be credited with debts of the testator, which they had paid ; and if the debts paid are found to be equal to, or exceed the value of the personal estate, and the proceeds of the said lot, the defendants are to be no further charged ; but the master is to report accordingly, to the end that the bill may be dismissed. But if the debts paid do not exhaust the personal estate, or if, *having exhausted it, they do not ex- [ * 330 | haust the proceeds of the sales of the said lot, then the master is to report the amount of such sales, or of the balance of such sales, as the case may be, remaining unexhausted, to- gether with interest thereon, from the time of such sales up to the date of the report. And unless the plaintiffs shall, within 40 days from the date of this decree, signify their election, by notice to the solicitor of the defendants, to pro- ceed with the reference, the bill shall then stand dismissed without costs. Decree accordingly, (a) (a) Vide Livingston v. Livingston, ante, p. 143, and Duke of Cumberlznd and other* v. Codrington and others, ante, p. 229. 253 330 CASES IN CHANCERY. 1818. ^-v~>* DUNKLEY V. VANBUREN. t'tvruary 26. DUNKLEY against VAN BUREN and others. [Reviewed, 100111.279.] On a bill to foreclose a mortgage, the mortgagee is confined to his rem- edy on the mortgage. The suit cannot be extended to the mort- gagor's other property, or against his person, in case the property mort- gaged is not sufficient to pay the debt for which it is pledged. The mortgagee's further remedy is at law, where he may sue at th- same time, on his bond, or on the covenant to pay the money ; and after a foreclosure of the mortgage in equity, he may sue on his bond, at law, for the deficiency. It seems that a subsequent suit at law, to recover the remainder of the debt unsatisfied by the sale of the mortgaged premises, does not open the foreclosure and revive the equity of redemption. BILL to foreclose a mortgage given to secure the payment of a bond. The bill was taken pro confesso, and the master reported the amount of the bond debt, with the interest due, and unpaid. Cowdrey, for the plaintiff, suggesting that the mortgaged premises were probably insufficient to pay the debt, moved, *that, in addition to the usual decree, directing the premises to be sold by a master, a further provision, that, in case of a deficiency, the defendant V. B., the original mortgagor, pay the remainder of the debt by a given day, or that execution issue therefor against his other property, or against his body. THE CHANCELLOR. The motion must be denied. The party, on a bill to foreclose a mortgage, is confined in his remedy to the pledge. Such a suit is not intended to act in personam : it seems to be generally admitted in the books, that the mortgagee may proceed at law on his bond or cov- enant, at the same time that he is prosecuting on his mort- gage in chancery ; and that after foreclosure here, he may sue at law on his bond for the deficiency. (Lord Redesdale, in 1 Sch. and Lef. 176. and 13 Vesey, 205. Aylct v. Hill, Dickens, 551. Took's case, Dickens, 785. 2 Bro. 125. Perry v. Barker, 13 Vesey, 198. Dashwood v. Blythway, 1 Eq. Cas. Abr. 317.) It is supposed in some of the cases, that the subsequent suit at law for the remainder of the debt left unsatisfied upon the sale of the mortgaged premises, opens the foreclosure and revives the equity of redemption. Whether that be so, is not now to be discussed ; though, if the point was before me, I should be much inclined to agree in opinion with Judge Story, in Hatch v. White, (2 Gallis. Rep. 152.) that there is no just foundation for the doctrine; 254 CASES IN CHANCERY. 331 and I should especially doubt of its application in the case 1818. of a judicial sale under the decree. It is sufficient to ob- ^^^^-^^ serve, that the present suit is the ordinary bill to foreclose, DENNING and was not intended to supply, at once, the place of a suit at law upon the bond, and a suit in equity upon the mort- gage. If that was the operation of it, and if such was the course of the Court, the discussion in the above cases would never have arisen. Motion denied. *DENNING and others against SMITH and others. [ *332] [Distinguished. 6 Johus. Ch. 333; 3 Sandf. Ch. 57. Followed, 6 Johns. Ch. Ill; 3 Paige 398.] Though, by the act authorizing the loan of moneys, &c., (sess. 31. ch. 216.) the mortgagor, after a default of payment, loses all equity of redemp- tion, and the commissioners become seised of an absolute estate in the premises, yet the commissioners are trustees for the people to the amount of the mortgage debt and interest, and, for the mortgagor, in respect to the surplus ; and the mortgagor, as well as the people, has a right to demand of the commissioners a faithful execution of the trust. The notice of sale, according to the true construction of the act, must continue to be fixed up at three public places, and be advertised in a public newspaper of the county, from eight days after the 4th Tues- day of May, to the third Tuesday of September^ or the time of sale. And where, on a default of the mortgagor, the commissioners caused the mortgaged premises to be sold, without giving due public notice of the sale, pursuant to the act, and under circumstances denoting fraud and collusion, on the part of one of the commissioners, the sale was set aside, and the deed executed by the commissioners or- dered to be delivered up to be cancelled ; and the proceedings in an action of ejectment brought by the purchaser, to be stayed by a per- petual injunction. BILL, filed 22d of September, 1815, stating that the January 21 plaintiff William Denning, on the 6th of February, 1812, ^ &tfarch9 - obtained a judgment in the S. C. against Henry Persen, on a bond conditioned for 777 dollars and 79 cents. That H. P. and his two sons, A. and J., being indebted to the plaintiff, Joseph Klein, in 400 dollars, gave him a mortgage on lot No. 11, and part of lot No. 14, containing 125 acres, situate in Cairo, in Greene county ; and the mortgage was recorded the 13th of February, 1812. That J. K. had also a judg- ment against them docketed the 1st of February, 181 2, for 255 332 CASES IN CHANCERY. 1818. one thousand dollars ; and he was the assignee of another \^^-^-~*^s judgment against them, docketed the 13th of January, 1812. DENNING for 750 dollars, in favor of J. De Witt. Executions were SMITH. issued on the judgment, in favor of W. D. and J. K., by virtue of which the sheriff seized and sold a parcel of land in Cairo belonging to H. P., and also the lots and parcels above mentioned ; and W. D. and J. K. became the pur- [ * 333 ] chasers at the sheriff's sale, and received *a deed for the same from the sheriff', dated 22d of April, 1812. That on the 15th of December, 1813, W. D. and J. K. sold and con- veyed to the other plaintiffs, .Moses Austin and William Sturgis, the land so purchased at the sheriff's sale, for 3,500 dollars, and received from them mortgages to secure the purchase money. That on the 21st of September, 1814, it was discovered by the plaintiffs, for the first time, that Henry Persen had, on the 5th or 6th of July, 1808, mortgaged one of the lots of land so purchased by the plaintiffs, to two of the defendants, Sioddard Smith and Abraham Hallcnbeck, commissioners for loaning moneys, in the county of Greene, under the act of the Legislature, passed the llth of April, \ Webster's ed. 1808,f for securing the payment of seventy-five dollars, P/392. sess. 31. loaned by the said commissioners to H. P. ch. 216. That, by the 15th section of that act, it was declared, that if any borrower should neglect to pay, yearly, on the first Tuesday in May, or within twenty-two days thereafter, the yearly interest due, the commissioners should be seised of an absolute estate in the land mortgaged, and the mortgagor should be utterly precluded and barred of all equity of re- demption. Yet, as well by the equity of the statute, as by the several provisions of it, in particular, the commissioners are trustees for the beneficial interest of the borrower and his assigns, to whom they are directed to pay the surplus, after the mortgage moneys are deducted. That, by the 19th section of the act, it is declared, that if the mortgagor, his heirs or assigns, should, at or before the sale of the commissioners, pay the mortgage money, payable on the first Tuesday of may preceding, and the costs, the commissioner shall accept thereof, and permit the owner, or his heirs or assigns, to take possession of the land, and hold it until a further default. That, by the 20th section of the act, the surplus money, if any, after paying the mortgage debt and costs, should be paid to the mortgagor, his heirs or assigns. That, by the 17th section of the same act, the [ * 334 ] commissioners are directed, ^within eight days after the last Tuesday of their attendance, aforesaid, yearly, to cause ad- vertisements to be fixed up in, at least, three of the most public places in the county, and in one of the public newspapers, 256 CASES IN CHANCERY. 334 describing the quantity and situation of the lands, and giving 1815. notice that on the third Tuesday in September, they would be v s _^~ x/ ^-x^ sold at the Court-house, at auction, &c. That, by the 32d DEN.NIHG section of the act, on the last day of their meeting yearly, they are to enter whose mortgages are foreclosed, and the number and sums of them, and also enter the orders for, and copies of, the advertisements, for sale, and places at which they are set up, and who set them up, and the names of the purchasers, and the prices, and to whom the overplus belongs. That the plaintiffs, as assignees of the estate of H. P. in the land mortgaged, have an interest in the compliance of the commissioners with these provisions of the act. That the value of the premises mortgaged by H. P. to the com- missioners was three thousand dollars. That the defendants, fraudulently, &c., and in order to devest the plaintiffs of their interest, by surprise, did not advertise the said land, according to the act, by the notice inserted in the newspaper called the CatsMll Recorder; that part of lot No. 14, as described in the notice, contained about fifteen acres ; lot No. 11, which is not mentioned in the notice, contains about 110 acres. That the notice, among other things, stated, " One other tract of land in Canton, now Cairo, part of lot No. 14, containing 125 acres;" that the direction in writing by the defendant Smith, to the printer, was to insert the notice in his paper for three weeks, and put an advertisement on the Court-house door ; and he thought the inside the best, on account of damage. That, in two other notices, the land was described as follows : " One other tract of land situate in Canton, now Cairo, lot No. 11, and part of lot No. 14, near Persen's mills, containing 125 acres, mortgaged by *Henry Persen, 6th of July ;" and one of the said notices [ *335 was directed to be put up on the back of the writing-desk of James M ' Vickar, in his store in Coxsackie ; and the other on the outside of the inner door of the house of Abijah Reed, in Greenville. That no other notices were given by the de- fendants. That at the premises mortgaged there was a toll- bridge, grist and saw mills, a manufactory of cloth, and a distillery, and in the same town, a large village and church. That Greenville and Coxsackie were remote from the premises. That the commissioners conducted the sale in a secret and clandestine manner ; that the front door and windows of the Court-house were shut, and the front door locked. That only two persons were present beside the defendants. That it could not be discovered that any business was transacting in the Court-house, unless the door is open. That the com missioners would not give any information to the two bv- YOL. III. 33 257 335 CASES IN CHANCERY. 1818. standers of the identity and situation of the lot; that they bid only 340 dollars, and the same was struck off to the defendant William Judson. That the commissioners well knew the situation and value of the premises, and the de- fendant Judson attended the sale at their request ; that the said lot was put up for sale out of the order in which it was advertised ; that the commissioners executed a deed for the lot to Judson, who has brought an action of ejectment against the plaintiff Sturgis, which is now pending. Prayer for gen- eral relief, and for an injunction. The defendants, in their answer, denied any knowledge of the debts of H. P. and his sons to the plaintiffs IV. D. and J. K., or of the judgments and mortgage, or the assignment to W. D. and J. K., or of the sale and deed of the sheriff, &c., or when the plaintiffs first knew of the mortgage to the commissioners ; but they averred that J. K. was informed of the mortgage long before the sale. They admitted the loan-office mortgage of the 125 acres of land in Cairo, by H. \ * 33(5 ] P., to secure the payment of 75 dollars with interest. *That the interest due in May, 1814, not being paid, the commis- sioners waited the time allowed by the act, and gave the notice stated in the bill. That the notice on the inside of the Court-house door was more likely to be preserved, and as likely to be seen, as if it had been on the outside. That they did not know that there was any error or defect in the notice published in the newspaper, and that lot No. 11 was omitted by mistake. That the notice was put up in the two usual places, and in the usual manner; and they denied any se- crecy or collusion in the sale ; that A. Cook and J. Bellamy both bid at the sale. That they do not recollect whether the outer door of the Court-house was open or not ; that several persons were present when the sale commenced ; that they gave every information in their power, as to the lot, and the defendant Smith read from the book the description of the mortgaged premises. That the defendant Judson did not attend the sale at the request of the commissioners ; that the sale was conducted in the usual manner ; and they de- nied all collusion with Judson. They admitted the deed to him by the commissioners, and that he had brought an action of ejectment against the plaintiff & Twelve witnesses were examined on the part of the plain- tiffs, who proved the material facts charged in the bill ; and the substance of their evidence is stated in the opinion of the Court /awiory22. The cause came on to be heard in January last. Van Buren (attorney-general) and /. V. D. Scott, foi the plaintiffs. 258 CASES IN CHANCERY. 33tf Van Vechten and Van Dyck, for the defendants. 1&18 The case stood over for consideration to this day, when the following opinion was delivered : THE CHANCELLOR. 1. The first and most essential object Marck9. of inquiry in this case is, how far the provisions of the statute have been disregarded or violated by the commissioners *in [ * 337 ] the sale in question. It will accordingly be necessary to ex- amine all the circumstances of the notice and sale, to ascer- tain this matter of fact. A tract of land in the town of Cairo, in Greene county, of the value of 3,000 dollars, and upwards, was mortgaged to the defendants Smith and Hallenbeck, as commissioners, under the act of the llth of April, 1803, (sess. 31. ch. 216.) to secure the repayment of a loan of 75 dollars. The inter- est of 5 dollars, 25 cents, due thereon in May, 1814, being un- paid, the commissioners, by reason of the default, became forthwith, according to the declaration and words of the act, " seised of an absolute, indefeasible estate in the lands, &c., to the uses in the act mentioned, and the mortgagor, his heirs and assigns, were utterly foreclosed and barred of all equity of redemption." They were directed in such case to sell the lands on the third Tuesday in September following, at the Court- house of the county, and after retaining the principal and in- terest of the mortgage, and the costs, not exceeding 3 dollars, the remainder of the moneys, if any, were to be paid to the mortgagor, his heirs or assigns. The sale was to be made in pursuance of public notice, and the commissioners were directed, in case of such default, and within eight days after the 4th Tuesday in May, " to . cause advertisements to be fixed up, at no less than three of the most public places of the county, describing the quantity and situation of the lands, and giving notice of the sale on the 3d Tuesday in September, by way of public vendue, to the highest bidder ; and they were also to cause such notice to be given in, at least, one of the public newspapers in the county." The seisin of the commissioners, free and clear of the The commis equity of redemption, was, nevertheless, as public agents or j^n^under'th'e trustees for the people of the state, to the amount of the ait, '(sess. si ^mortgage money, and for the mortgagor and his representa- [ * 338 ] lives, in respect to the surplus. The right of the mortga- c h. 216.) are, in gor, and his assigns, to the surplus moneys, notwithstanding * se lh f ^ e r [ a "f the statute bar of the equity of redemption, was explicitly the mortgagor, whereby they became seised of the premises clear of the equity of redemption, trustees fr the people to the amount due en the rcertgage, and for the mortgagor, as to the surplus, in case of sale 259 338 CASES IN CHANCERY. 1818 declared in the act ; and the state and the mortgagor were ^^^-^-^^ equally entitled to demand a due and faithful performance DENNING of the trust, with which the commissioners were thus clothed. SMITH. We must so construe the act as to give effect to all its provisions. The mortgagor, after the default, has no legal, (9 Johns. Hep. 129; 14 Johns. Rep. 362.) and, probably, no equitable title, which can be directly enforced, as against the land itself. But he has a valid and deep interest in the ex- ecution of the commissioners' trust. The state has no in- terest beyond the amount of their loan. All the surplus moneys belong to the mortgagor ; and we are not willing to presume such a fearful and lamentable defect of justice as the case would present, if a mortgagor could not call in ques- tion a fraudulent or irregular sale, by which he was deprived of his surplus. Let us then recur to the proofs, to see in what manner the directions of the statute were complied with. One of the advertisements was fixed up in the village of Greenville, about seven miles northerly from the lands, in the store of Abijah Reed, and another was fixed up on the back of the writing-desk of James M'Vickar, standing on the counter in his store at Coxsackie, about 15 miles easterly from the lands. The selection of these two places does not appear to have been made under the exercise of a sound discretion, and, when taken in connection w 7 ith many other circumstances, it forms a very material item in the mass of testimony, going to impeach the impartiality and integrity of the sale. The act required the notices to be put up in three u of the most public places " in the county : the object, doubtless, was [ *339 ] .to diffuse, as widely as possible, the knowledge *of the sale, and of the cause, and the subject of it. The step was abso- lutely requisite in order to do justice to the parties concerned in the land, and in the moneys to arise from it ; and it was a duty peculiarly pressing in this case, in respect to the mort- gagor, considering the very great disproportion between the value of the pledge and the debt charged, and the general The notice of severity of the provision, foreclosing at once, upon default, the 6 r act Uir to d be a ^ ri S^ and equity of redemption. The commissioners were fixed up iii three bound to use diligence and judgment in selecting the public mean's thafthey pl aces best calculated to bring the notice of sale home to the should be put mortgagor, and to all who were most likely to enter into "pLerbesS! competition for the purchase. cuiated to bring But here the commissioners selected two country stores, of m s e a/e e to 0t the at a ? reat distan ce from the land, while it is proved that the mortgagor, and premises were adjoining a turnpike road, and had, on and ad to all persons who are most likely to att j nd as purchasers. 260 CASES IN CHANCERY. 339 joining them, mills, factories, and a toll-bridge, which rendered 1818. them a place of great notoriety. It is also shown, that Smith, v^^-^^Lx one of the commissioners, had frequently passed by the land, DENNING and must have been acquainted with it. It is very extraordi- nary, that a place of such note as the land itself should not have occurred to the commissioners as very suitable for a notice. Or, if the land should not have been deemed one of the most fit public places, the village of Cairo, which is within the distance of a mile and a half of the premises, was a place of great notoriety. It is at the junction of three turnpike roads, and has a number of stores and taverns, and is the most central village in the county, and where county business is transacted. Why omit such a village as this, so near the lands, and resort to distant places? I apprehend no sufficient reason can be assigned. The third notice was directed to be upon the Court-house door. This place was, no doubt, judiciously selected. It is, in many instances, the place required by statute authority Thus the notice of the sale of mortgaged *premises by the [ * 340 J mortgagee, under a power contained in the mortgage, and the notice given by insolvent debtors, must be fixed upon the outward door of the Court-house of the county; and the notice of the general election of governor and senators is to be given by the sheriffs in the same way. In the very loan office act, under which the sale was made, the commissionera were to fix up notice of their appointment, &c., at the Court- house. But there was a very peculiar direction given as to this notice. In the letter from the defendant Smith to Cros- well, directing this notice to be put up on the Court-house door, lie adds, " The inside, I think, is best, on account of damage ;" and it was, accordingly, affixed up on the inside of the door. There is no evidence in the case of any damage having oc- curred in former cases, by putting the notice on the outside of the Court-house door: it is proved that notices are usually put up on the outside of the door, and we have no proof that they had ever before been put up on the inside. The proof in this case is, that notice on the inside of the door would not be visible when the door is open, (as it no doubt is on all public occasions,) because the door swings against a wall. This concern in a public officer about damage to the notice, and assigning it as a reason for departing, in this particula? case, from the usual, and probably from the universal practice, is a very suspicious circumstance, and looks like premeditated wrong. The act further directed that notice was also to be given in at least one of the public newspapers in the county ; and 261 340 CASES IN CHANCERY. 1818. the notice in this case was directed to be published in the v^^-v^ *^s CafaH// Recorder, for three weeks. DENNING One objection to this notice was the limitation of it to three SM!TH. Weeks ' The act does not prescribe, in express terms, the length of time the notices were to remain fixed up, or continued in [*341 ] the paper. It only declared when they were to be *given. viz. within eight days after the 4th Tuesday in May, and when the lands were to be sold, viz. the 3d Tuesday in Sep- tember. But I think the true construction of the act is, that The notice of the notices fixed up in three public places, were to continue to al t e he^r C ue r con? " fixed U P " until the sale - In a subsequent paragraph of struction of the the act, when a new or resale of the lands is to be made, the continued "fixed ac * requires at least " six weeks' notice " of the sale to be given, UP at three pub- in the manner before directed. This more explanatory pro- he pifbiished'in v "i s i n as to the continuance of the notice was necessary, be- n public news- cause the time of first announcing the notice was not fixed, county, m from and ^ comes powerfully in aid of the construction given to and after the the prior section. If the commissioners might direct the efjht days from n tices to remain fixed up only three weeks, they might, in the fourth Tues- the exercise of their discretion, limit the time to three days. Si y0 thf foi tCd Tne act left no discretion 'with them on this point. The Tuesday of Sep- time when the notices were first to be put up, and the time o "sale! f ' e f sa l e being declared, there was no need of any further pro- Three ^weeks' vision, as the notice was, doubtless, intended to occupy the sufficient. 8 >l intermediate time. In the absence of proof to the contrary, we might presume, that the notices fixed up in the three public places remained up until the sale ; but we have certain proof that the newspaper notice was only for three weeks, by the express direction of Smith. This notice ought to have been commensurate, in point of time, with the others. The words of the act are, that the commissioners shall also cause " such notice " to be given in at least one of the public newspapers ; and it meant a notice that was to correspond, in description and duration, with the notices to be " fixed up " at the public places. If the commissioners had a control over the duration of the newspaper notice, they had equally a control over its commencement ; and it might have been deferred until the day of the sale. " Such notice " here meant the same notice with the others, in every material point, and the duration or length of the notice is always the most material part of it. [ * 342 ] *Having stated the facts as to the time and place of the notice, we proceed next to examine the contents of the notice, as to the description of the land. 262 CASES IN CHANCERY. 342 In the notices fixed up at Greenville and Coxsackie, the \Q\S premises were described as being in Cairo, and as being "lot No. 11, and part of lot No. 14, near Persen j s mills, con- taining 125 acres, mortgaged by Henry Persen" In the other notice, on the Court-house door, and in the newspaper, The notice the premises were described as a tract of land in Cairo, must contain the " part of lot No. 14, containing 125 acres." The name of ^oTgago'r, ami the mortgagor was here omitted, and the lands in lot No. an accurate de- 11 omitted, which contained about 110 acres, while the lands q"antky and in lot No. 14 were but 15 acres. The omission of the mort- situation of the gagor's name, and of the number of the lot in the advertise- a Td to b^soht '' ments in Catslcill, where the agent of the owner under the mortgagor resided, was a most unfortunate circumstance, and is calculated exceedingly to increase our apprehensions. It was also an omission fatal, in any view, to the legality of the notice. Indeed, it appears from the testimony of Samuel Haight, the agent of the plaintiff Denning, that if he had discovered from the advertisement of the commissioners in the newspaper, (and which paper he took,) that the lands mortgaged by Henry Persen were included, he would have satisfied the demand . Upon such notices the sale was made. There were very few bidders attracted by the notice. The sale was made in the lower entry of the Court-house, while the front door and windows were shut ; and when the commissioners were asked for an account of the lands, by one of the solitary by-standers, they referred him to the loan-office books, and gave no further explanation. The lands in question were purchased by the defendant Jurhon, for about 340 dollars ; and it appears, that he came that day from his house in Coxsackie to Catskill, and, proba- bly, for the purpose of such a speculation. *2. All these circumstances combined warrant the con- [ * 343 elusion, that the commissioners grossly departed from the letter and spirit of the act, in the advertisement and sale of the lands. Some subsequent circumstances were pressed upon the argument, as evidence of the disposition or design of the commissioners, or one of them, in this transaction. But I forbear to enlarge on that point. The abuse of trust appears to me to have been too palpable to be denied, and too grievous to be endured. There was a want of due dis- cretion in the selection of the public places, at which two of the advertisements were fixed up. There was an abuse of discretion in putting the notice on the inside of the Court- house door, where it would probably be concealed from the public; and it was so singular and extraordinary a precauti'Wi as to afford an inference of unwarrantable and fraudulent 263 343 OASES IN CHANCERY. 1818. views. There was a defective notice a to time, in being ^*r-^~^/ confined to three weeks, in the CaUkill Recorder, and still DENNING more defective as to description, by totally omitting the men- ^ on ^ one ent ^ re ^> containing the most part of the lands that were sold. And, lastly, the sale itself was attended with singular circumstances, calculated to exclude observation and if the com- competition. There was, upon the whole, so manifest a bu'se'ih'eir 8 *^" v il at ' on f tne intention and directions of the act, and so this Court wili great an injury, in consequence of it, has been inflicted upon either b settirf' sucn f the plaintiffs as were entitled to the surplus moneys, aside the sale, that I cannot bring myself to doubt of the right of the party u"e d mortg g agor to relief - The onl y difficulty consists in settling the mod* to redeem, "or and extent of the relief to be afforded. The sale must comm'isfiouers 6 e ^her be set aside as null and void, and an opportunity af- to account for forded to the plaintiffs to redeem, under the 19th section of De e tween fferC "he *he act, or the commissioners must account for the difference sum for which between the price that the lands sold for, and their actual MU '"sad *hs casl1 value at tne time ' To allow the sale to stand > and to real' value at afford no relief to the plaintiffs, would (as the evidence strikes time. me ^ j eave a gtain on the justice of *the country. Sales of 44 J real property by public officers of one description or another, iiave become so frequent, and have excited such active cu- pidity, and such a spirit of speculation, that there is very great danger of injustice, unless we support strictly the checks and guards provided by law against abuse. I should have no difficulty, if that was the only alternative presented, to hold the commissioners responsible for a breach of trust in the sale of the lands, and make them answei in damages. The case of The Charitable Corporation v. Sutton (2 Atk. 400.) would fully justify me in going to that extent. "I will never determine," said Lord Hardwickc, in that case, " that a Court of equity cannot lay hold of every breach of trust, let the person be guilty of it in a private or public ca- pacity." But I think the more appropriate remedy in this case is, to declare the sale void. It was not a sale under a judgment, or decree of a Court of justice, where the pur- chaser has a right to presume every thing to have been legally done. In Lloyd v. Jones, (9 Vesey, 37.) Lord Eldon seems to have been of opinion, that mere irregularity, without making out a case of fraud or collusion of some sort or other in the purchaser, was not sufficient to affect him. Lord Redesdale, in Bennett v. Hamill, (2 Sch. fy Lef. 566.) adopt- ed the same idea ; but the doctrine was applied in both cases to irregularity in a decree, and those cases have no analogy to the present. Here was a special trust to be executed by the commissioners of loans, for the benefit of the state, and of the party ^ntitled to the surplus ; and all their authority to 264 CASES IN CHANCERY. 344 sell wa:? under the statute prescribing the mode. If the sale 1818 by the commissioners would be valid, upon a short or defec- \^r-^~^s live notice, it would be valid without any notice; and this DENNI. surely cannot be maintained. A special authority must be g v- strictly pursued, and every purchaser is to be *presumed to r * 34 r 1 know that special authority, in this case, for it is contained in j < i i i i . , A special au- the act ; and it he purchases in a case m which that special thority must be authority was not pursued, he purchases at his peril. The slnctl y P ursued > 1 1 1 I 11 TkT 11-1 3n " * pUrClia- notice, which omitted altogether lot Wo. 11, and which was seris presumed put up under an extreme abuse of discretion, if not with a au t |,^" t w ^ fraudulent design, on the inside of the Court-house, was it is given by * before the eyes of the purchaser as he stood in the inside of j^j 1 '^- ^'"ur" the Court-house hall ; and ignorance of the defect and irreg- chases where ilarity cannot be pretended. ^ jj*jjr The most advisable and proper remedy for the case appears is at his peril. o be, to declare the sale void, and to order the deed to be delivered up and cancelled, and to continue the injunction of the action of ejectment. This will be reinstating the parties in their rights, as they stood prior to the sale. The defendant /we/soft does not put himself forward as a bona fide purchaser, without notice of any irregularity. He knew all that the commissioners knew. He only joins with them in their general allegation, that " they did not know that there was any deficiency or error of description, of any kind, in the notice published in the newspaper." But they do not say when they did not know of the defect. Did not Judson know of it before the sale ? That he does not deny. Besides, the ignorance is confined to the newspaper notice ; and it is proved that the same notice was affixed upon the inside of the Court-house door. If. a purchaser wishes to rest his claim on the fact of being an innocent, bona Jide pur- chaser, he must deny notice, even though it be not charged ; and he must deny it positively, not evasively : he must even deny fully, and in the most precise terms, every circumstance from which notice could be inferred. (Cason v. Round, Prec. in Ch. 226. Brace v. Marlborough, 2 P. Wms. 491. See also 1 Johnson's Ch. Rep. 302, and the cases there cited.) *I cannot entertain any doubt of the jurisdiction of the [ * 346 j Court being competent to afford the requisite relief. The jurisdiction is necessary to help the cestui que trusts, who have been defrauded or unduly deprived of the surplus moneys, which were to arise from a fair and regular sale. They were compelled to resort to this Court, as they had no title at law, and the legal title rested in the commissioners, free of the ordinary equity of redemption. They could not nave made any defence at law : all their right was a claim to the surplus fund, on a sale within the statute : so far the VOL. III. 34 265 346 CASES IN CHANCERY. 1818. commissioners were trustees for them ; and in that view the v^^-v^^x plaintiffs have an equitable interest to be protected. To DENNING vindicate that equitable right, the plaintiffs were obliged tc SMITH a PPty to tms Court ; and I conclude, with entire conviction, that the sales by the commissioners, to be valid, must be made in conformity with the act, and that they cannot dis- pense with any of its directions. I shall, accordingly, declare, that the sale in question was made without the due public notice required by law, and under circumstances denoting a fraudulent intent on the part of the defendant Smith, and that it be adjudged null and void ; and that the deed executed by the commissioners to the defendant Judson, be delivered up and cancelled ; and that the action of ejectment in the bill mentioned be perpet- ually enjoined ; and that the defendants Smith and Hallen- beck pay to the plaintiffs their costs of suit, to be taxed. . Decree accordingly. 966 CASES IN CHANCERY. Matter of *ln the Matter of EUNICE SALISBURY, a .uunatic. In the management of a lunatic's estate, the interest of the lunatic is more regarded than the contingent interest of those who may be en- titled to the succession. And the Court, if it be for the interest of the lunatic, will direct timber on the land of the lunatic to be sold. So the real estate may be converted into personal, or personal into real, if for the benefit of the lunatic. PETITION of John Van Vechten, the committee, stating, Ma. ck 9 that the lunatic is seised of a wood lot in Catskill. That proposals have been made to the committee to purchase the wood standing on the west corner of the lot, and which corner contains about five acres. That the offer is 25 dollars per acre for the wood, which, in the opinion of the committee, is very favorable to the interest of the lunatic. That the land is on the side of a hill, and of no value, except for the wood. That the price offered is equal to the value of the land, including the wood on it ; and if cut off*, wood may grow up again, and be of equal value. Prayer for an order to sell the wood, according to the offer. Affidavits of David W. Hart, and of ll^illiam B. Salisbury, in support of the facts stated in the petition, were read ; and the master (Robert Dorian) reported, that it would be for the interest of the lunatic to accept of the proposal for the purchase of the wood, as stated. THE CHANCELLOR. It is settled that the property of a lunatic may be converted from real into personal, when it shall appear to be for the interest of the lunatic, without re- gard to the contingent interests of the real and personal rep- resentatives. The governing principle, in the management of the estate, is the lunatic's interest, not that of those who may have eventual rights of succession. *The statute of 17 ' *348 E. 2. (and which we have re-enacted,) directing that the estate should not be " wasted or destroyed," meant injurious waste or destruction. The words of the English statute are, sine vasto et destructione. There may be cases, as Lord Ross- lijn observed, in which to cut timber on the estate would be no waste. In the case ex parte Broomfield, (1 Vesey, jun. 453.) timber of the lunatic's estate was cut by order of the Court, on the master's report, that it would be for his benefit. (See the opinion of Ch. J. De Grey, cited in 2 Vesey, jun. 75. note, and the opinion of Lord Thurloiv, in the case of 267 348 CASES IN CHANCERY. 1818. B.oomfield: see, also, Oxenden v. Compton, 2 Vesey, jun 69 in which Lord Rosslyn considers this subject very much at large.) So, likewise, the Court may authorize a change of the property of infants from real into personal, and from personal into real, when it is manifestly for the infant's benefit (Notes to the Earl of Winchelsea v. Norcliff, 1 Fern. 483 Lord Hardwicke, in Amb. 419.) In the present case, I am perfectly satisfied, that the timber had better be converted into money, than left standing. The lunatic has been afflicted for a long time. She is not advanced beyond the middle stage of life ; and the timber may grow again fit for use before she dies. The money will be more productive than the timber left upon the land. The case has peculiar circumstances-: I shall, therefore, grant the prayer of the petition. Order accordingly. CASES IN CHANCERY. #349 *DEPAU oo-amstf MOSES and others. 1818 ^-N^-> DEPAU v. MOSES. Vhere the testator devised his real and personal estate to his executors, for the payment of his debts ; on a bill for an account, stating, that the executors refused to distribute the personal estate, and to sell and dis- tribute the proceeds of the real estate ratably among the creditors, aud threatened to transfer it, to secure certain favorite creditors, who were entitled to no preference at law or in equity, the Court granted an injunction to restrain the executors from selling or disposing of the estate. But whether this Court will, in such a case, at the instance of a creditor, compel a ratable distribution of assets by the executors ? Qwcere. BILL stating that the plaintiff sues as well on behalf of Mayii. himself as of the other creditors of Isaac Moses, deceased, who shall come in and contribute to the expenses of the suit ; and that Isaac Moses, together with Moses L. Moses and David Moses, two of his sons, traded under the firm of Isaac Moses and Sons, and became indebted to the plaintiff and others, in divers sums of money ; to the plaintiff in 4,650 dollars, by a promissory note to him, and payable on the 1 5th of April, 1818. That the firm became indebted to various persons, to 200,000 dollars and upwards, and afterwards stopped pay- ment, and became utterly insolvent. That, subsequent to such insolvency, the said Isaac Moses died, on the 16th of April last, leaving Mary Moses his widow, and the other two defendants aforesaid, together with Hyman Moses, Joshua Moses, Maria Levy, (wife of Aaron Levy,) Rebecca Moses, Lavinia Moses, Sally Moses, and Saul Moses, his children, and leaving a will, whereby he devised his real and personal estate to his executors, for the payment of his debts, and particularly of the debts of the firm ; and appointed the three defendants his executors. That the will has not been proved, and is kept concealed by the defendants, and the plaintiff cannot state its contents more precisely. That, by the will, the real and *personal estate was made equitable assets. [ * 350 That the defendants have refused to distribute the personal estate, and to sell and distribute the proceeds of the real estate, ratably among the creditors ; but declare, that they will secure certain favorite creditors, tvho have no legal or equitable priority, and will assign the estate to some trustee for such favorite creditors, in fraud of the other creditors. Prayer, that the defendants may account with the plaintiff and the other creditors, who shaR come in and contribute, and pay them in equal and ratable proportions ; and for an injunction, restraining the defendants from selling or trans- 269 350 CASES IN CHANCERY. 1818. ^-V-* DEPAU V. MUSES. [*351] ferring the real and personal estate, except under the direc- tion of this Court, and that they may be compelled to sell the real and personal estate under such direction, and bring the proceeds into Court, to be applied to the entire or rata- ble payment of the plaintiffs, and such other creditors as shall come in and contribute as aforesaid, and that, until such sales, a receiver may be appointed to receive the rents, issues, and profits, &c. T. A. Emmet, for the plaintiff, moved for an injunction, on the ground that the will made the real estate equitable assets, and that the personal estate was devised for the pay- ment of the debts. Independent of the will, he contended, that equity would enforce equality in the application of assets, and referred to the opinion of Sir J. Mansfield, in 1 Campbell's N. P. 148, and who, he said, was one of the best chancery lawyers in England, in his day. He contended, that equity would equally restrain a creditor from seeking, by legal process, to acquire a preference, and an executor from giving it voluntarily ; that chancery even would consider deeds for the purpose of preferring creditors who had no legal or equitable priority as fraudulent. *THE CHANCELLOR, without giving any opinion on the suggestions of the counsel, thought the bill contained ground for an injunction, and referred to what he had said in the t Ante, p. ; case of M'Kay v. GVem.f Injunction granted. 270 CASES IN CHANCERY. 35, 1818. DUNCAI DUNCAN against LYON. [Approved, 72 Mo. 647; 6 Johns. Ch. 322. Reviewed, 4 Johns. Ch. 13.] After a verdict at law, the party comes too late with a bill of discovery. After a trial at law, or a report of referees, a party cannot have the aid of this Court, unless he can impeach the justice of the verdict or re- port, by facts or on grounds of which he could not have availed him- self before, or was prevented from doing it by fraud or accident, or by the act of the opposite party, without any negligence or fault on his part. A set-off is not allowed where the demand is for uncertain damages arising from a breach of covenant. A Court of equity follows the same general rules as a Court of law, as to set-off. There must be mutual debts to authorize a set-off. Equity has not an exclusive jurisdiction between copartners in matters of account. An action of account lies at law, by one partner, against his copartner ; and it seems, that there is no good reason why that action is not, sometimes, resorted to, instead of a bill in equity. An action of covenant at law lies by one partner against another, where the articles contain a covenant to account. THE bill, filed August 27th, 1817, stated, in substance, that the plaintiff and defendant entered into an agreement under seal, dated the 20th of July, 1809, which was set forth in this bill, and which related to the plaintiff's furnishing timber, &c., which the defendant was to take to Montreal or Quebec, &c., and to pay the plaintiff half the proceeds, &.C., and furnish him with an account thereof, &c. The bill then detailed, at length, the transactions and conduct of the de- fendant, &c., and stated, that the plaintiff, before and since 1809, was a resident at Schenectady, and had no opportunity, from personal inspection, *of becoming acquainted with the [ * 352 ] acts of the defendant. That the plaintiff is willing to come to a fair account with the defendant, and make all just allow- ances ; but the defendant refuses to render to the plaintiff any detailed accounts of his transactions, and has sued the plaintiff at law, in an action of covenant on the agreement, and alleged breaches, &c., to which the plaintiff pleaded the general issue, and gave notice of special matter to be given in evidence, &c. The bill contained a particular interrogatory, that the defendant may discover and set forth a detailed account of all the staves and lumber, &c., and the sales, &c. That the defendant, under an affidavit, that the suit at law would require the examination of a long account, obtained an order of the Supreme Court for a reference, and had noticed the cause for a hearing, before the referees, on the 271 352 CASES IN CHANCERY. 1818. 28th of August, 1817. "That the plaintiff cannot make out v^-v^-^^/ his defence, nor obtain a report of the referees in his favor, DUNCAN from the account of the defendant 'being fraudulently with- LYON held, and from the facts stated, which are essential to his defence and set-off, resting, in a great measure, in the knowl edge of the defendant, and, therefore, not to be made out but from a full discovery of the defendant." Prayer, that the defendant may be decreed to come to a fair' and just account with the plaintiff, and to pay what shall appear to be due to him, and for an injunction to stay proceedings at law, &c The injunction was granted the 27th of August. The answer of the defendant, filed October 21ot, 1817, after giving a minute detail of the transactions, which it is unnecessary to notice, stated, that the plaintiff owed, on the account, 425 dollars and 32 cents, over and above the great damages he had sustained by occasion of the refusal of the plaintiff to perform his part of the contract. That the de- fendant sued the plaintiff at law, in January, 1816, in an action of covenant on the agreement, and assigned breaches [ * 353 ] in *his declaration ; that the plaintiff pleaded and gave notice of special matters of defence ; that the issue was joined in July, 1816; that the Supreme Court ordered a reference of the cause, and the plaintiff nominated one of the referees , that in October term, 1816, another referee was appointed, in the stead of the one chosen by the plaintiff; and in Maij term, 1817, other referees were appointed, one of whom was nominated by the plaintiff. That, on the 7th of August, the cause was regularly noticed for a hearing on the 28th of August, before the referees. That the referees met on that day, and heard the proofs and allegations of the defendant ; that no person appeared on the part of the plaintiff; and the referees reported in favor of the defendant for 2,500 dollars, damages, and delivered their report to him ; that about three or four hours after the report was delivered, the injunction obtained in this cause was served. That, on the hearing before the referees, the defendant gave in evidence a true account of the moneys for which all the timber he had taken from the lands of the plaintiff was sold, &c. ; a true account of the expenses in and about the same, &,c. ; the original covenant between the parties ; the lease to J. S. ; the order of the plaintiff, forbidding the de- fendant to take timber after the lease ; the seizure by J. S. under that order, and prosecutions by him ; and the refusal of the persons employed by the defendant to work, after such prohibition, &c. The defendant, on the 25th of March, 1818, put in a further answer to the plaintiff's bill. 272 CASES IN CHANCERY. 353 Cadi/, for the defendant, now moved that the injunction, heretofore issued in this cause, be dissolved ; and if not, that leave be granted to the defendant to enter up judgment on the report mentioned in his answer, or that the plaintiff bring into Court and deposit a sum equal to the amount reported in favor of the defendant. *He contended, that the equity of the bill was fully denied by the defendant's answer ; and that the plaintiff ought to have made his defence, if he had any, to the suit at law before the referees. This Court cannot award a rehearing before the referees. If the plaintiff wanted a discovery to aid him in his defence at law, he ought to have applied sooner ; that he had been guilty of gross negligence, and if the ref- erees heard the cause ex parte, it was owing to the wilful and inexcusable default of the plaintiff, who had due and regular notice of the time and place of hearing before the referees. That this is not the case for a set-off, as the claim of the defendant was for uncertain and unliquidated damages, arising ex delicto. This Court could not assess the damages. There could be no set-off here in such a case, any more than at law ; but the principles of set-off were the same at law as in equity; that no unliquidated damages could be set off. He cited 1 Johns. Ch. Rep. 320. 432. 465. 2 Johns. Ch. Rep. 228. 552. 1 Madd. Ch. 108. 315. 3 Aik. 223. 1 Cairns' s Rep. 141. 3 Vesey, 248. 1 Vernon, 176. Neivland's Ch. Pr. 100. * /. V. Henry, contra, contended, that this was a case of partnership which repelled every objection to set-off. The injunction issued before the report of the referees ; and the hearing before them was altogether ex parte. That in equity a set-off will be allowed, when it would not be permitted at law. That this is a case of mutual claims, under a partnership agreement, arising from the acts of the parties relative to the ubiect matter of the partnership. It is a case of partnership account, and the breaches of the articles of partnership must be ascertained on a reference to a master, or by an issue. The uncertainty of the damages on the breaches of the part- nership contract, is no objection to the jurisdiction of the Court. Partnership dealings are the proper subjects of equitable interference, and a Court of law will not direct an account to be taken between partners. The jurisdiction *of this Court attached on the filing of the bill. Nothing but gross negligence draws after it a loss, in equity. He cited Montague on Set-off, Append. 68, and notes. 1 Mad. Ch. 75. 3 Bos. fy Pull. 289. Watson on Partner. 60. 7 East, 353. 356. 1 Johns. Ch. Rep. 65. 103. VOL. ITI. 35 273 1818. DUNCAN v. LYON. May II. [ * 354 [*355 355 CASES IN CHANCERY. 1818. LYON. THE CHANCELLOR. The reasons which have been sug gested, or which have occurred to me, for retaining the in- DUNCAN junction, may be arranged under the following heads : 1. That the plaintiff did not make his defence before the referees, and that the recovery is unjust. 2. That his demands against the defendant ought to be liquidated and admitted, by way of set-off against that recovery. 3. That the demands of the parties all arise out of part- nership articles, and ought to be heard together, and adjusted in this Court. 1. The bill was not strictly a bill of discovery, for it had a prayer for relief, and yet the necessity of a discovery would seem to have been the cause and chief object of the bill. It stated, that the plaintiff had been sued at law, and that issue had been joined, and a reference awarded ; and it then added, that he " could not make out his defence, nor obtain a report of the referees in his favor, from the account of the defendant having been fraudulently withheld, and from the facts essen- tial to the defence and set-off resting, in a great measure, in the knowledge of the defendant, and, therefore, not to be made out but from a full discovery of the defendant." This is the language of a bill of discovery ; and I take it for granted, that this plain and avowed purpose was the ground of the allowance of the injunction. But it appeared, afterwards, that the bill was filed too late for such an object, provided the discovery was intended to have been used before the A"er a ver- referees. After a verdict at law, a party comes too late with party^omes'too a bill f discovery. (Barbone v. Brent, 1 Fern. 176.) late with a bill *There is no reason assigned why the bill was not pre- sented before the 27th of August, being only the day before the one for which notice of the hearing at the reference had been given. It now appears, that the referees met on the day appointed, and heard the cause in the absence of the plaintiff; and that they had made their report, and delivered it to the defendant, some hours before notice of the injunction was served. The cause (as it appears from the answer to that part of the bill relative to the suit at law) had been at issue above a year ; and the Supreme Court had, at three different terms, been applied to, in respect to the appointment of referees, and in two instances, one of the referees had been nominated by, or on behalf of, the present plaintiff. The notice of the reference had also been duly given, aa early as the 7th of August, and yet no bill was filed, or ap- plication for an injunction made, until the 27th of August. Here was extreme delay on the part of the plaintiff, in the 274 CASES IN CHANCERY. exhibition of his bill, whether the object of the bill was dis- 1818 covery in aid of the defence at law, or whether it was for -^r-^**+ final relief here. If a party will not apply in due season to DUNCAN this Court, and appears to have had sufficient time, and suf- ficient information to enable him to do it, the case stands precisely on the same ground as if he had applied after the trial or reference at law. It is a settled principle, that a party will not be aided after a trial at law, unless he can impeach the justice of the After a tria. verdict or report, by facts, or on grounds of which he could at , lav ,' ? r re i ! i i i f -if i P ort <" referees, not have availed himself, or was prevented trom doing it by a party cannot fraud or accident, or the act of the opposite party, unmixed ['^Court^un' with negligence or fault on his part. This point has been so less he can im often ruled, that it cannot be necessary or expedient to dis- {^of'tiie vel cuss it again ; and it is one by which I *mean to continue to r * 357 i be governed. In some of the cases in this Court, referred diet or report, to by the defendant's counsel, it was shown to be the rule of j^J^s 8 ' or " the English chancery, and it appears also to have been fre- which he could quently noticed and recognized in the Courts of equity in this j l j^seit^or country. (Marshall, Ch. J., in Marine, Insurance Company v. was prevented Hodgson, 7 Cranch, 336. Chancellor Desaussure, in Winthrop f ^j J 1 ac j and others v. Lane and others, 3 Desaussure' s Rep. 324, 325. dent, or the act Noland v. Cromwell, 4 Munf. 155.) If the principle was to J ar * w f t be materially relaxed, the departure from it, as I apprehend, any negligence would soon be perceived and felt to be a great public griev- t ] ance, by encouraging negligence, protracting litigation, ex- hausting parties, and drawing within the cognizance of this Court the general review of trials at law. There is nothing before me impeaching the justice of the report of the referees. If the suit there was in a case of which a Court of law had jurisdiction, (and which point 1 shall presently consider,) I do not know of any ground entitling the plaintiff to the continuance of his injunction. If there be any sufficient cause for a rehearing, or for setting aside the report, he will have an opportunity of applying to the Supreme Court, which has competent powers for the purpose, as the report has not as yet been made to that Court, and confirmed. I do not think I ought to assume the control of a matter of relief which has previously attached, and fitly belongs to that jurisdiction. 2. The matters of account stated in the bill were not proper subjects of set-off in the action of covenant ; and if the discovery had been obtained in season, I presume it would not have aided the defence. The breaches assigned in the action at law were, that the plaintiff had refused to perform his part of the covenant, in furnishing timber and provisions, 275 358* CASES IN CHANCERY. 1818 & c - and the demand at law was in the nature of redress foi >.^-v^*_^ a wrong or injury committed, and not for a debt due. It DUNCAN rested entirely in uncertain and ^unliquidated damages. LYON. There cannot be a set-off even of a debt against the demand of the plaintiff, unless that demand be of such a nature that it could be set off by a debt, if it existed in him. There must be mutual debts. This is the settled doctrine in the Courts A set-off is of law. (Colson v. Welsh, 1 Esp. N. P. Rep. 378.) Lord where the^de^ Mansfield said, in Howlet v. Strickland, (Cowp. Rep. 56.) mand is for un- that not only the statute, but the reason of the thing, related ge arisinglrom to mutual debts only, and that unliquidated or uncertain a breach of cov- damages, arising from a breach of covenants, were no debts. The same doctrine was held in Weigall v. Waters, (6 Term Rep.} and in Gordon v. Bowne, (2 Johns. Rep. 150.) A Court of The same rule prevails, also, in Courts of equity. The SE^ foU iT! P ract i ce ma yj perhaps, be more liberal in respect to mutual rai rules as a credits, but there is ho case in which a set-off has been allowed, ^"to'set-off^' wnere * ne demand was for uncertain damages arising on a breach of covenant. The Courts of law and equity follow the same general doctrines on the subject of set-off. This appears from the opinion of Sir Thomas Clarke, in Whitdker v. Rush. (Amb. 407.) The cases of Ex parte Stevens, and Ex parte Hanson, (14 Ves. 24. 12 Fes. 346.) only established that, under certain circumstances, there may be a set-off in equity, when there can be none at law ; and as late as the case of Addis v. Knight, (2 Merivale, 121.) it was observed, by the master of the rolls, that in equity, as well as at law, a joint could not be set off against a separate demand. Until the statute of 2 Geo. II. Courts of equity followed the rule of law, and would not allow mutual, unconnected debts to be set off. " If they had done otherwise," said Lord Mans- field, in Green v. Farmer, (2 Burr. 1214.) "they would have stopped the course of law, in all cases where there was a mutual demand." It was the observation of Lord Hard- ivicke, (1 Afk. 237.) that he did not know that a Court of equity had gone further than the Courts of law, in cases of a set-off. [ * 359 J *The doctrine of set-off was borrowed from the doctrine of compensation in the civil law. Sir Thomas Clarice shows the analogy, in many respects, on this point, between the two systems ; and the general rules in the allowance of com- pensation or set-off by the civil law, as well as by the law of those countries in which that system is followed, are the same as in the English law. To authorize a set-off, the debts must be between the parties, in their own right, and must be of the same kind or quality, and be clearly ascertained or liquidated 276 CASES IN CHANCERY. 359 They must be certain and determinate debts. (Dig. 16. 2. 1818. de Compensationibus, Code 4. 31. 14. and Code 5. 21. 1. ^^^^-^_x ErsJc. Inst. vol. 2, 525. 527. Pothier, Trait, des Oblig. No. DUNCAN 587. to 605. Ferriere. sur Inst. torn. 6. 110. 113.) LY V OM Courts of equity, before the statute of Geo. II., (and when There must Courts of law had no power on the subject,) have enforced a be mutual debt* set-off, after judgment of law, where it clearly appeared to S et-oir. have been the intent of the parties, that the one demand should be set off against the other. Lord Macdesfield, in a strong case of this kind, (Hawkins v. Freeman, 2 Eg. Cas. Abr. 10. pi. 10. 8 Finer, 560. pi. 26.) interfered with hesi- tation, and put his interference on the ground of the manifest intent. I observed that the practice might be more liberal in cases of mutual credit;, and for the more accurate understanding of that observation, I would refer to the case Ex parte Deeze, (1 Atk. 228.) in which it was held by Lord Hardwicke, that if a man had a debt due from a bankrupt, and had, at the same time, goods of the bankrupt in his hands, which could not be got from him without the assistance of law or equity, the assignees ought not to take them from him, without sat- isfying his whole debt. Mutual credit was not to be confined to pecuniary demands, but it reached to a case like this, of goods in the hands of the creditor. This case was cited by Ch. J. Gibbs, in Olive v. Smith, (5 Taunton, 56.) as a just decision; and he observed, that this *case, and the doctrine [ in it, had always been supported. Where one party, -being indebted to another, intrusts that other with goods, it was a case of mutual credit ; and the statute of 30 Geo. II. c. 5. has been carried beyond money transactions, and extended to cases of mutual trust. (4 Term Rep. 211.) (a) If the recovery at law is to be taken, under this present motion, as a just recovery, then it would be unreasonable to delay the defendant until the accounts between the parties can be taken and stated, and the balance struck in this Court. One judgment may be set off against another ; but here is a demand on one side raised to a debt certain by a legal as- sessment, and an uncertain claim on the other, depending on a settlement of accounts. Those accounts were not the sub- ject of set-off; and there is no case to warrant me to stay (a) These are bankrupt cases, arising under the statute of bankruptcy, which speaks of mutual credits. The statute of 2 Geo. II. ch. 22. s. 13, which first allowed set-offs at law, speaks only of mutual debts; and the language of our act, previous to the late revision, was, " that if two or more persons, dealing together, be indebted to each other," &c. (L. N. Y. 1 K. and R. 347.) In the revised act (sess. 36. ch. 56. s. 1. 1 JV. R. L. 515.) the words tre " that if two or more persons, dealing together, be indebted to each other, or have demands arising on contract or credit againfl each other." 360 CASES IN CHANCERY. 1818. execution on the one demand until the other is settled, and i n a condition to be set off. It may be a long time before the accounts between these parties can be stated, and the balance struck ; and until that be done, it cannot be known even on which side the balance will fall. The only colorable ground against the motion is, that the demands on each side arise out of partnership articles ; and that the cognizance of the whole case belongs, properly, if not exclusively, to this Court. But, I do not find, that even matters of account between Equity has copartners, belong exclusively to this Court, though, in prac- jrisdiction S be- ^ ce > tnev mav be confined here. Courts of law and equity tween copart- have concurrent jurisdiction in matters of account ; and it is [ * 361 ] conceded, that an action of account at law may *be brought ners in matters by one partner against another. (Co. Litt. 171. a. Montague An action of on Partnerships, vol. 1 . 45.) In that action, the auditors account may be have all the requisite powers, for they can compel the parties brought at la\v . i i .1 i T i by one pjfrtner to account, and to be examined under oath ; and I have not against another, been able to discern any good reason why that action has so pears tcTbeTo totally fallen into disuse, (a) The practice, also, under the good reason statute, of appointing referees in matters of account, is a new why that action *T c i j *. is not resorted power given to our Courts ol law ; and it would seem to ren- te, instead of E der the cognizance of such causes much more suitable for a Court of law here, than in England. This Court has no better mode of settling accounts than by referees ; and it is, in many cases, under the necessity of appointing a merchant, or other skilful accountant, to assist the master in taking and stating the accounts. Lord Hardwicke once said, (2 Aik. 144.) that the House of Lords frequently made such references in matters of account, and he thought it the most proper method in a case then before him. In Chapman v. Koops, (3 Bos. fy Pull. 289.) the undivided interest of one partner was taken on execution, and the C. B. refused to make an order of reference to their prothonotary to take the partner- ship account, and the judges considered that such a step would be assuming equity jurisdiction. In that case, and in such a collateral way, the measure proposed would have been changing the character of the Court ; and, doubtless, it had not the jurisdiction in the mode asked for. But if such a point had directly arisen in the action of account, no such (a) Vide Godfrey v. Saunders, (3 Wils. 73117.) in which Ch. 3. Wilmot said, he was glad to see this action of account revived in that Court. Some of the objections to this old common-law remedy were obviated by the stat. 4 Jinn. . ?h. 16. s. 27, which allowed it between joint tenants or tenants in common, and against their executors and administrators ; and the auditors are empow ered to administer an oath, and examine the parties on oath, touching the matters in question. (1 Selw. JV. P. 1. 1 Bac. Mr. Jlccompt.) The same provisions are to be found in our statute. (Sess. 11. ch. 4. 1 JV. R. L. 90.) 278 CASES IN CHANCERY *362 objection could have been *made, and auditors would have 1818. been appointed. I believe, that the action of assumpsit has x - x~v-^' never been carried further, between partners, than to the case DUNCAN of an account stated, and a promise by one of them to pay L ^ N to the other the balance struck. (Foster v. Allanson,% Term An action of Rep. 479. Moravia v. Levy, 2 Term Rep. 483. note.) covenant lies ai Whether the action of assumpsit may not be further extended, p a a Ttner ^gahTJt (for it is a very liberal and remedial action,) so as to reach, another, where and carry into effect, the general powers of a Court of law, t^ere is'a cove- of settling account, by referees, it is not for me to determine, nant to account. It is sufficient, for the present purpose, that the defendant had a suitable action at law provided for his case, and that the action of covenant mentioned in the pleadings was well brought ; and the cases I have referred to, in the Term Re- ports, admit, that if the parties enter into articles of copart- nership within a covenant to account at stated times, an ac- tion at law will lie upon the covenant. We meet also with And an .?- the same doctrine, applied even to an action of assumpsit, in ^^"ie on^a Penning v. Leckie. (13 East, 7.) That was an action of as- promise in wri- sumpsit on a promise in writing to take part of certain goods, pinner, to take bought by the plaintiff on joint account, and for which they part of goods were to be equally concerned in the profit and loss. It was th^werTio be objected, that this was a partnership, and that no action lay equally con- by one partner against the other ; but the Court said, that profiTanfMos* 1 there were many deeds of copartnership in which the partners covenanted each to advance a certain sum, and that an action at law would lie to enforce the covenant, though there were accounts between them afterwards, which would require un- ravelling in equity. These cases approach, in principle, to the one under dis- cussion ; and though the plaintiff may be entitled to go on, and have an account taken in this Court, yet I see nothing to justify me in interfering in the meantime with the defend- ant's action at law. The motion to dissolve the injuncfon must be granted. Motion grante i. 279 CASES IN CHANCEPvY. *SMITH against WEST. After a cause had been regularly set down for a hearing, on the Ml and answer, the plaintiff was allowed to file a replication, on payment of costs. June 9. [*364 THIS cause was set down for hearing, in September last, by the plaintiff, on bill and answer : but he did not bring it on. The defendant, accordingly, in May last, entered an order, and gave notice that he be at liberty to bring the cause to a hearing, at this time : upon receiving the notice, the plaintiff filed a replication, and put the cause at issue. Griffin, for the defendant, now moved to set aside the replication, with costs ; and that the defendant have leave to bring the cause to a hearing, on the bill and answer. Caines, contra. He read an affidavit of the plaintiff's so- licitor, stating facts, which showed that it was necessary, for the plaintiff's rights, to take proof in the cause,' and explaining why it was before omitted. THE CHANCELLOR. Under the circumstances of this case, the motion cannot be granted. There are, no doubt, fre- quent instances in which the Court has allowed the plaintiff to reply, after the cause had been set down for hearing, on bill and answer. It is a matter resting in discretion. In some* cases, the plaintiff has been permitted to reply, after having gone to a hearing, on payment of costs. (Wyatfs P. R. 375. Donegall v. Warr, 1 Eq. Cos. Abr. 43. pi. 4.) I shall, therefore, deny the motion, on condition that the plaintiff, within four days, pay the defendant's costs arising from the cause being set down for *hearing in September last, and from the proceedings on the part of the defendant in May last. No costs of the present motion to be allowed on either side. Order accordingly. 280 CASES IN CHANCERY. CONSEQUA against FAN? NG and others. [Adhered to, 4 Johns. Ch. 448.] Where a decretal order of reference to a master, to take an account, was made in September, 1817, and in January, 1818, the master, after hearing both parties, made his report, and in June following, the de- fendant petitioned for a rehearing on grounds affecting the merits of the decretal order ; the Court, though the part}' was not entitled to a rehearing, as of course, on account of the delay in making the appli- cation, granted the petition, on the defendant's paying all the costs of reference, under the order, and depositing^/?i/ dollars with the reg- ister, towards the expenses of the rehearing, in case the decree should not be materially altered. On a petition for a rehearing, the party applying must deposit jifty dollars with the register, towards the costs of the rehearing, in case the de- cree should not be materially varied. PETITION by the defendants for a rehearing, conceiving themselves aggrieved by the decretal order of the 30th of September, last ; 1 . Because a ge' eral account was not decreed, but only specifically ; (setting forth the specific directions contained in the decretal order, which was very particular as to the mode of taking the account ;) 2. Because the decree limits the charges, to be made by the defendant, to remittances and payments, applicable to the matters charged, whereby matters of account, to a large amount, viz. 86,000 dollars, were excluded ; 3. Because the defendants are charged with a note given by Obcd Chase to the plaintiffs, for 35,700 dol- lars and 50 cents, OR with goods sold by the plaintiffs to them for that amount, whereas, by the pleadings and proofs, thev are not fully chargeable with that sum, in either shape, but ought only to be charged as for goods consigned; and in *that way the defendants are willing to account ; 4. Because the defendants are charged with twelve per cent., whereas, in case of consignments, they ought not to be charged with greater interest than seven per cent. ; 5. Because the defend- ants are charged with so much of the goods shipped by the plaintiffs on the 25th of November, 1810, in the ship Chinese, &c. &,c. ; 6. Because the defendants are directed to account for the proceeds of 64,828 dollars and 65 cents, deducting only 43,025 dollars and 87 cents, whereas, &c. The defendants, in praying for a rehearing, submitted to pay what costs the Court should direct, in case their complaint proved to be groundless. T. A. Emmet and Brackett, in support of the petition. FANNING June 12. [*365j Riggs, for the plaintiff, offered to read an affidavit of what VOL III. 36 281 365 CASES IN CHANCERY. 1818. to k place before the master, but it was objected to by the defendant's counsel. The Court, however, permitted it to be read. . FANNING. The master's report, dated January 31st, 1818, stated, that the counsel for the parties attended before him ; that he had, in their presence, taken the accounts directed by the de- cretal order, and had charged the defendants, &c., (specifying the charges,) and that he had credited them for all remittances and payments, and with such other allowances as appeared to be just. That the balance due from the defendants, for the principal and interest to the date of the report, was 104,457 dollars and 91 cents. THE CHANCELLOR. The application for a rehearing in this case has been unreasonably delayed. The defendants acquiesced in the decree, by submitting to the reference which was directed by it, and by appearing before the master, and [ * 366 ] making their defence, by way of discharge and *payment, upon the principles contained in the decretal order. After the accounts have been taken and stated, and the master's report made, the petition for a rehearing is now presented, and it goes to the grounds and substance of the decree, in respect to the mode of taking the accounts. The affidavit of the plaintiff's solicitor has been read ; but as far at it relates to the merits of the case before the master, I should think it not admissible, and that, if any information of that kind was wanting, it ought to have appeared upon the report or cer- tificate of the master. As far, however, as the affidavit re- lates to the acts of the defendants, in respect to their con- currence in taking the account, it may be proper ; but even here it was unnecessary, for the master's report contains the fact of the appearance of the defendants, by their counsel, before him, and of their defence. Considering the nature and importance of this case, I am induced to grant the petition ; but then it must be upon con- dition that the plaintiff be indemnified for the expense he has been put to, in taking the account. The decree of the 30th September was so precise and particular, in prescribing the limits, and in settling the mode of taking the accounts, that the defendants are without excuse for their delay. There was a rule of the English Court of Chancery, in 1 1 Geo. I. (Beanies' s Orders, p. 334. 338.) requiring a petition for a re- hearing to be presented within a fortnight after the order pronounced ; and though the Court has, in the exercise of its liberal discretion on this subject, departed from the rule, 282 CASES IN CHANCERY. 366 (Newland's Practice, p. 187.) yet the existence of such a 1818. rule contains a salutary admonition. ^^--v *-> There is, also, a standing rule in the English chancery, CONSEQUA (Rule of 1700 and of 1794. Beames's Orders, p. 316. 459.) FAH IHO . that the party obtaining a rehearing shall deposit with the register 10/. to be paid to the adverse party, if the decree be not essentially varied. This is a useful check upon the abuse of such applications ; and I see no reason *why a similar rule [ * 367 ] of practice ought not to prevail here. After a cause has been regularly brought to a hearing, and argued by counsel, and solemnly considered, a rehearing ought not to be a matter of course, and without costs, as it would tend to harass the party, and protract litigation. I shall, accordingly, grant the motion for a rehearing, on condition that the defendants previously pay the costs of the reference, under the order of the 30th of September last, and also deposit with the register 50 dollars, towards the expense of the rehearing, in case the decree should not be materially altered ; and to be paid over as the Court shall finally direct. I shall follow the practice of requiring a deposit in like cases, hereafter. Order accordingly. 383 367 GASES IN CHANCERY 1818. MILLS DIN. MILLS against DENNIS and others. [Applied, 50 Barb. 342; 9 Cow. 359; 3 Sandf. Cli. 153. Followed, 1 Edw. 448; 5 Johns. Ch. 167; 1 Sandf. Ch. 118. s.p. Clarke 423; 2 Paige 301; 6 Id. 178. There can be no valid decree against an infant, by default, nor on hw answer by his guardian ; but the plaintiff' must prove his demand in Court, or before a master, and the infant will have a day in Court, after he conies of age, to show error in the decree. But if, instead of seeking a foreclosure of the mortgage against the in fant heir of the mortgagor, there is a decree for the sale of the mort gaged premises, the decree will bind the infant. A sale is the most useful course, as being the most beneficial to both parties. But before a decree for the sale, there must be a special report of a master, of the proof of the debt before him, of the amount due, and of what part, if less than the whole, of the mortgaged premises, a sale will be sufficient to raise the amount of debt, and, at the same time, be most beneficial to the infant. June 15 BILL to foreclose a mortgage executed by Isaac Dennis, deceased. The defendants (except one) are the heirs at law of the mortgagor, and two of them represented as infants. The bill was duly taken pro confesso, against all the defend- ants, except the two infants, who appeared and answered by [*368] their guardian, the clerk of the Court, *who was appointed their guardian, for this purpose, by an order of the Court. A reference was made to a master to compute, and report the amount due on the bond and mortgage mentioned in the bill. The cause was then regularly set down for hearing upon the report, and due notice thereof, as respected the infants, was served upon their guardian. G. W. Strong, for the plaintiff, moved for confirmation of the report, and a decree for the sale of the mortgaged premises. THE CHANCELLOR. A decree cannot safely be obtained against an infant, upon the mere fact of taking the bill pro confesso, or upon an answer in form by the guardian, ad litem. The answer in such cases generally is, that the infant knows nothing of the matter, and, therefore, neither admits nor de- nies the charges, but leaves the plaintiff to prove them, as he shall be advised, and throws himself on the protection of the Court. A decree upon such an answer would not bind the infant, and he could open it, or set it aside, when he comes of age. No laches can be imputed to an infant, and no valid decree can be awarded against him, merely by default. The plaintiff, in every such case, ought to prove his demand, 284 CASES IN CHANCERY. 369 either in Court, or before a master ; and the infant is usually 'jntitled to a day to show cause, when he comes of age. It was the ancient, and has been the settled practice of MILLS the Court, that no decree should be made against an infant, D v without giving him a day (which was usually six months) after he comes of age, to show cause against it ; (2 Fern. 232. 342 ; 2 P. Wms. 403.) and he is to be served with process of subpoena, for that purpose, on his 'coming of age. (Bingham on Infancy, p. 115.) But though, in the case of a foreclosure of a mortgage, the infant has his six months to show cause, yet he cannot, then, be permitted *to unravel the [ * 360 ] accounts, nor will he be entitled to redeem the mortgage, by paying what is reported due. He is only entitled to show error in the decree ; and this was declared to be the settled rule by Lord Talbot, in Mattock v. Galton, (3 P. Wms. 352.) and was understood to be the rule in the case of the Bishop of Winchester v. Beaver, (3 Vesey, 317.) If, however, instead of foreclosing the mortgage against the infant heir of the mortgagor, and thereby giving him a day after he comes of age, it be decreed, that the lands be sold to pay the mortgage debt, then it seems to be understood that the sale will bind the infant. (Booth v. Rich, 1 Fern. 295.) So if lands devised to be sold, for payment of debts, be decreed to be sold, the infant has no day, after he comes of age, unless he be decreed to join in the sale. (2 Fern. 429.) The English practice, until lately, has been to fore- close, instead of selling the mortgaged premises. Thus, in Goodier v. Ashton, (18 Vesey, 83.) there was the usual decree of foreclosure against an infant, with a day to show cause, though it was then suggested to the Court, that a decree for a sale would be more advantageous to the infant, as the estate might be mortgaged for less than its value ; and it was said to be the rule in Ireland to direct a sale in all cases, instead of a foreclosure. But the master of the rolls did not incline to make such a precedent against the uniform prac- tice. This course was, however, shortly afterwards, adopted by Lord Eldon, in Mondey v. Mondey, (1 Vesey and Bea. 223.) who said, that, if there was no precedent, (as he be- lieved there was not,) he would then make one ; and he directed an inquiry, whether it would be for the infant's ben- efit, that the estate should be sold. The practice, with us, has been to sell, and not to foreclose, as well where infants, as where adults are concerned. I think this course must generally be most beneficial to the infant, as well as to the creditor ; and there can *be no doubt of the [ * 370 ] authority of the Court to pursue it. The Court may change the estate of infants from real into personal, and from per- 285 370 CASES IN CHANCERY. 1818. sonal into real, whenever it deems such a proceeding most ^^-sx-**-' beneficial to the infant. (Amb. 419. 6 Vesey, 6. 3 Desaus. MILLS S. Ca/-o. Rep. 18. 21.) The proper inquiry in such cases DENNIS w ^ ^ e ' wnetner a sa l e of tne whole, or only of a part, and what part of the premises will be most beneficial ; and this has now become the usual inquiry, even where infants are not concerned, as appears from the case of Brinckerhoffv. Thal- . himer. (2 Johns. Ch. Rep. 486.) The master must not only make a special report on that point, in every case where in- fants are defendants, but the plaintiff must, also, prove his debt before the master, in the same manner as if nothing had been admitted by the answer ; and the master must report such proof, and also the computed amount of the principal and interest due, and to what extent, and of what part of the premises, (if any part short of the whole,) a sale would be sufficient to raise the debt, and at the same time be most beneficial to the infant. Every sale so decreed will be absolute, without any day tc show cause. Decree The following order was entered : " The plaintiff's bill of complaint in this cause having been taken pro confesso, against the defendants, &c., and this cause having this day been brought on to be heard, on the said bill so taken pro confesso, against the said defendants, and upon bill and an- swer, as to the above-named defendants, Thomas Doty,jun., and Elbert Doty, who are infants ; whereupon, after reading a notice of hearing of this cause, and admission of the due service thereof, by the guardian ad litem to the said defend- ants, Thomas Doty, jun., and Elbert Doty; and after reading the said bill and answer, and an affidavit of the solicitor for the plaintiff, proving the regularity of the proceedings in this cause, in taking the said bill pro confesso, against the above- * 371 ] named defendants, *as aforesaid, (which affidavit is filed,) and after hearing counsel for the plaintiff, no counsel appearing for the said defendants, Thomas Doty, jun., and Elbert Doty, the said infants, to oppose the same ; it is ordered, adjudged, and decreed, that it be referred to one of the masters of this Court to take proof of the material facts stated in the plain- tiff's bill of complaint, and particularly whether the bond and mortgage, in the plaintiff's bill mentioned, were duly executed, as therein set forth; and if the said bond and mortgage were duly executed, that the said master compute and ascertain the amount due to the plaintiff for principal and interest thereon : And it is further ordered, that the said master, under the circumstances of the case, in reference to the amount due to the plaintiff for principal and interest on the said bond and mortgage, and the situation, nature 286 CASES LN CHANCERY. 371 and value of the mortgaged premises, ascertain whether a 1818. sale of the whole, or a part only, and what part, of the said <_^~x"-*^ mortgaged premises, would be for the benefit of the said ROBERTS infant defendants ; and that the said master report, on all the ANDERSOK matters aforesaid, to this Court, with all convenient speed. And all further directions are reserved, until the coming in of the said report." ROBERTS AND BOYD against B. AND J. ANDERSON. [Reversed, 18 Johns. 515.] A person who has fraudulently acquired title to land, and fraudulently conveyed it, though by a mere quit-claim deed without covenants, is not a competent witness for his grantee, in a suit brought against him by a person claiming it as a bona fide purchaser. A deposition taken in an ejectment suit at law, brought by the defend- ants against a third person as tenant, to recover the land, the subject of the suit here is not admissible in evidence against the plaintiffs ; it being res inter alias acta. Under the third section of the act to prevent frauds, (10 sess. c. 44. 27 Eliz. ch. 4.) which was intended to protect bona fide purchasers, a purchaser, for valuable consideration, without notice, from a fraudu- lent or voluntary grantee, *will be preferred to a subsequent purchaser, F * 372 for a valuable consideration, without notice. The first purchaser has the preference, whether he takes his conveyance from the grantor or grantee. Under the first section of the statute, (sess. 10. c. 44. 13 Eliz. c. 5.) which was made to protect creditors, a fraudulent conveyance by a debtor is utterly void, as to creditors, unless made for a valuable con- sideration to a bona fide purchaser, without notice of the fraudulert intent. But a bona fide purchaser from a fraudulent grantee acquires no title, by the conveyance, against the creditors of the fraudulent grantor. THE plaintiff, Roberts, being a creditor of William Griffith, J IS who had absconded, obtained from Aaron Lyon, on the 22d of March, 1810, an assignment of a bond, given by G. to.L., and a mortgage given to secure the bond, on part of a lot of ground in JVewburgh, duly registered in May, 1806. The plaintiff R., who paid L. 214 dollars and 25 cents, for the bond and mortgage, took possession of the mortgaged prem- ises, and the house thereon, and the residue of the lot ; and, on the 27th of August, 1810, let the same, by a written lease., to Hector M 'Leod, who took possession thereof, as his tenant. Benjamin Taylor, who had obtained a judgmen* against G. t on the 14th of May, 1808, for 128 dollars and 10 cents, 287 372 CASES IN CHANCERY. 1818. caused the premises to be sold by virtue of an execution, v^^-s^-^.^ issued on that judgment, and the plaintiff *S*. B. became the ROBERTS purchaser thereof, at such sale, for thirty dollars, and received ANDERSON. a deed accordingly. The plaintiff . B. made the purchase as trustee for the plaintiff R. The bill stated that Griffith, being indebted to sundry creditors, and there being suits then pending against him, in order to defraud his creditors, did, on the 20th of January, 1808, convey the said mortgaged premises to Sarah Johnson, for the nominal consideration of 2,000 dollars, and by another deed, he conveyed the other part of the lot to her, for the pretended consideration of 1,500 dollars. That the said deeds were collusive and fraud- ulent, and the said & J., having paid nothing, was a trustee for W. G., and the lands were afterwards reconveyed to him. [ * 373 ] before Isaac Clason obtained a judgment against the *said tS". J. That G. continued to possess and enjoy the premises, as his own, after the conveyance to J. That, in 181 1, the defendants pretended to claim the land under a deed from the sheriff, dated the 1st of January, 1810, by virtue of a judgment at law in favor of Isaac Clason, against S. J., brought an action of ejectment against M'Leod, and obtained a ver- dict, on producing the sheriff's deed, and proving, that, on the 1st of May, 1810, M'Leod took a lease from the defend ants, which was held sufficient to exclude proof of his being the tenant of the plaintiff. That the lease taken by M,, under the defendant, being after he became tenant to the plaintiff, was void, and the attornment fraudulent ; he having actually entered into possession under the plaintiff. The bill prayed, that the conveyances from W. G. to S. J. might be declared fraudulent and void, and that the sheriff's deed to the defendants, and all other deeds from S. J., or any grantee of her, to the defendants, of the premises, or any part thereof, might be declared fraudulent and void, and be delivered up, to be cancelled ; and that all proper parties might release to the plaintiff R. ; and that an injunction issue, und for general relief. The defendants, in their answer, denied any knowledge of the claim of the plaintiff. They admitted the mortgage from G. to Lyon, but averred, that M'Lcod was their law r - ful tenant, on the 1st of May, 1810. They admitted Taylor's judgment and the sheriff's sale to the plaintiff B. They averred that there was no judgment against W. G. when he conveyed the premises to S. J. They denied all knowledge and belief of any fraud in those deeds, but believed that they were executed for good and valuable considerations, paid by, or the amount justly due to, J. They denied any reconveyance by her to W. G., and stated that Isaac 288 CASES IN CHANCERY. *374 1813. ^~-v <^ ROBERTS v. ANDERSON Clason, on the 15th of May, 1809, obtained a judgment against S. J. for 346 dollars and 88 cents ; and that, on the 13th of December, 1809, *the premises were sold by virtue of an execution on that judgment, and the defendant, B. . Anderson, became the purchaser, for one dollar and fifty cents, subject to all prior encumbrances, and the other defendant became a joint owner. That S. J. had executed a mortgage to Daniel Stansbury, for 496 dollars and 88 cents. That William King had some equitable claim on the property ; and the defendants agreed with S. J. to give her 167 dollars for her quit-claim, and also take up the mortgage to Stansbury, and pay W. K. 300 dollars for his claim ; that $. /., accord- ingly, executed a quit-claim deed, dated 21st of March, 1810, to the defendants, who paid her the 167 dollars ; and, on paying 439 dollars and 39 cents, took an assignment of Stans- bury's mortgage ; and on the 23d of March, 1810, on paying 300 dollars, obtained a release from W. K. and his wife. The defendants alleged that they had not heard of the claim of the plaintiffs, until after they had paid the above-mentioned sums, and denied all notice of any fraud, &c. That the defendants have tendered 250 dollars, the amount of the mortgage, to the plaintiff R., who has refused to receive pay- ment. That Alexander Dennison, a tenant of S, J., and Hector M'Leod, on the 1st of May, 1810, took a lease of the prem- ises for one year from the defendants, and became their tenant. The defendants claimed to hold as bona Jide purchasers, without notice, &c. The cause came on to be heard this day. Among the proofs offered to be read, on the part of the defendants, were two depositions ; one of Sarah Johnson, deceased, taken under the act passed the 4th of April, 1807, to perpetuate testimony, which was objected to, as inadmissible, on the ground of her being interested to support the defendants' title: the other, the deposition of Thomas Allen, taken be- fore the clerk of the Supreme Court, in the absence of the recorder of New-York, on the 29th of September, 1812, on the part of the plaintiff in an action *of ejectment depending in the Supreme Court, between James Jackson, ex dem. John Anderson and Benjamin S. Anderson, against Hector M'Leod, (vide 12 Johns. Rep. 182.) which was objected to, because it was not taken in a cause in which the plaintiffs in this suit were parties. THE CHANCELLOR. The deposition of Sarah Johnson, ^ 'fraudulent oefore a master, under the act of the 4th of April, 1807, to lyai quired title perpetuate testimony, is inadmissible, because she was inter- fr au d u | e d n ' t ] y and conveyed it, though by a quit -claim deed, without covenants, is not a compettnt witness for his grantee, in a suit brought against him by a person claiming it as a bona fide purchaser. VOL. III. 37 289 June 19. 375 ] 375 CASES IN CHANCERY. 1818. ested in supporting the title she had conveyed to the defend- s^-v^^x ants - It i g > indeed, stated by the master, that her inteiest ROBERTS had been released ; but no such release is produced, to enable AHDERSON me to J U( *g e ^ ^' nor ^ s an y account given of its loss. It is also true that the defendants state, in their answer, that she had executed to them a quit-claim deed, for which they paid her 167 dollars ; but they say that they had not then heard of the claim of the plaintiffs, and deny all notice of fraud. If, however, k?aroA Johnson possessed herself of a title to the land in question from Griffith, by a fraudulent agreement be- tween them, to cover the property from creditors, as is charged, then she had not, and knew she had not, any valid title, when she conveyed to the defendants, for a valuable consid- eration. She took the land in fraud, and fraudulently re- leased to the defendants ; and if the charges in the bill were established, the defendants would be entitled to an action on the case, in the nature of an action of deceit, against Sarah Johnson, notwithstanding she conveyed to them without cov enants. This is a clear and settled rule of law and equity. (Com. Dig. tit. Action on the Case fora Deceit, A. 8. 1 Salk. 211. Risney v. Sel by, Butler's note to Co. Litt. No. 332. Edwards v. M'Leay, Cooper's Eq. Rep. 308.) (a) She was, [ * 376 ] therefore, directly interested when *she made the deposition, in repelling the charges in the bill, and, consequently, her deposition cannot be received. A deposition The deposition of Thomas Allen, taken before the clerk jectment suit at of the Supreme Court, in the absence of the recorder of law, brought by New-York, on the 29th of September, 1812, on the part of here againsTa the plaintiff, in the cause then depending in the Supreme third person, as Court between " James Jackson, ex dem. John Anderson and cw^'the'iand" Benjamin S. Anderson, v. Hector M'Leod," is inadmissible, the subject of because it was taken in a cause in which the present plain- the suit here is , n- T. . 7. j ,i not admissible tiffs were not a party. It was res inter ados acta, and the evidence present plaintiffs had no opportunity or power to cross ex- pfaTntiff, being amine. It cannot be said, that the present plaintiffs were res inter olios parties to that ejectment suit, by their tenant, Hector M 'Leod ; for the bill charges that M 'Leod had taken a lease under the present defendants, and that the recovery at law was had upon the ground that M'Leod was the tenant of the present defendants; and the answer admits that M'Leod was the tenant of the present defendants. It would be a very extra- ordinary act of inconsistency and injustice, for the defend- ants to assert, and prevail at law on the assertion, that M 'Leod was their tenant, and not the tenant of the plaintiffs ; and then for them to offer an affidavit taken in the cause at law, and have the same received in this suit against the piam- (a) Vide Wardettv. Fosdick, 13 Johns. Rep. 325. Mondlv. Golden, 76.395. 2 Cainis, 193. 1 Fonbl. 366. note. 290 CASES IN CHANCERY. tiffs, on the ground that it was taken in a cause in which the plaintiffs were essentially the party. These depositions being rejected, the cause was argued ROBERTS upon the residue of the testimony produced. . v- S. Jones, jun., for the plaintiffs. Burr, for the defendants. THE CHANCELLOR. There cannot be a doubt as to the operation and effect of the proof upon the question *of fraud. [ * 377 J The two deeds from Griffith to Sarah Johnson were palpa- bly and grossly fraudulent. Even if the deposition of Sarah Johnson had been admissible, it would not have been entitled to credit, in opposition to the mass of testimony clearly establishing the fraud in the conveyances to her, and her knowledge and admission of the fact. The only possible question in the case, as it strikes me, is, whether Sarah Johnson, being a fraudulent grantee, can be the source of legal title in the defendants, assuming them to be bonajide purchasers, for a valuable consideration, without notice of the fraud. It is a rule which we find in the books, (Prodgers v. Lang- Under 27 Eliz. ham, 1 Sid. 133. Andrew Newport's case, Skinner, 423. se^forYvahla" Smartle v. Williams, 3 Lev. 387. Comb. 247. l)oe v. bie considera- Martyr, 4 B. fy Puller, 332.) that a purchaser for a valuable J|^ e> 2JJ"J consideration, without notice, from a voluntary or fraudulent voluntary or grantee, shall be preferred to a subsequent purchaser, for a tee" wiiTbe^pre- valuable consideration, without notice, from the original ferred to a sub- grantor. But these are cases arising under the statute of 27 ser, U for a"vaiu- E!iz., which was intended to protect bona fide purchasers able considera- < .,1 i ,- 1 tion, without against purchasers without consideration, or voluntary gran- notice from tlie tees : this intention is equally fulfilled whether the conveyance original grant- for a valuable consideration comes from the voluntary grantor or grantee. If there be no creditors, the title of the volun- tary grantee is good until there comes a bonajide purchaser from the grantor, for a valuable consideration. Until then, no person's rights are affected ; but when that happens, the deed, as to such purchaser, is to be set aside. If, however, the voluntary grantee shall have sold, in the mean time, to a bona fide purchaser, he is justly to be considered as standing in the grantor's place ; and that what is done by him is done by the grantor, and such purchase will stand *good. Under [*378 ] this statute, the first purchaser for a valuable consideration, Under th whether he takes the conveyance from the voluntary grantor third section of 11 i ^i e /,iii- ^ c .LI. tne s'atu'e foi or grantee, will have the preference ; for the sole object of the the prevention of frauds, (sess. 10. c. 44. 27 Eliz. c. 4.) the first purchaser, for a valuable consideration, whether he takes the con- 'eyancc from the grantor or grantee, will be preferred. 291 378 CASES IN CHANCERY 1818. statute was to protect such purchasers against voluntary con -^* ^~*+~s veyances, which, as to them, are fraudulent. ROBERTS The case before me falls undei the 13 Eliz., which was ANDERSON ma( ^ e to protect creditors from fraudulent conveyances ; and Under the nere a different rule of construction prevails. The original frst section of deed from the debtor to a fraudulent grantee is " utterly frauds ta ' Ut (sess. vo *d " as * o creditors, and as against them, the grantee can 10. ch'. 44. 13 make no conveyance, for he has no title, as against them. fraudulent con* The statute, in its enacting clause, operates on the deed from veyance, by a the fraudulent debtor, and the proviso in the act applies to terly 'vokl r "as ^ a ^- original conveyance from the debtor, and saves it, when to creditors, made to a bona fide purchaser fora valuable consideration. ^"purchaser" Such a conveyance is supported by the proviso, however for a valuable fraudulent the intention of the grantor might be, and the anTwkhoutn'o- contrary impression, which I had once received on this point tice of the fraud- from some of the English cases, without, at the time, adverting ent> to this proviso, and which led me to the dictum in Hildritti v. Sands, (2 Johns. Ch. Rep.} was properly corrected by Mr. J. Spencer, when that cause was afterwards before the Court of Errors. (14 Johns. Rep. 498.) But a /wiaj&fe But though the debtor himself may fraudulently, on his a U frauduient m P art ' convey to a bona fide purchaser, for a valuable consid- gramee, ac- eration, yet his fraudulent grantee cannot ; for it is under- by ir the comiy! stood that tne proviso in the 13 Eliz. does not extend to ance against such subsequent conveyance. The policy of that act would the "fraudulent be defeated by such extension. Its object was to secure Cantor. creditors from being defrauded by the debtor ; and the danger was, not that he would honestly sell for a fair price, but that he would fraudulently convey, upon a secret trust between him and the grantee, at the expense of the creditors. If the debtor sells, himself, in a case where the creditor has no lien, [ * 379 ] and sells for a valuable Consideration, he acquires means to discharge his debts, and it may be presumed he will so apply them. If his fraudulent grantee be enabled to sell, the grantor cannot call those proceeds out of his hands, and the grantee can either appropriate them to his own use, or to the secret trusts upon which the fraudulent conveyance was made. There is more danger of abuse, and that the object of the statute would be defeated, in the one case than in the other. The fraudulent grantee has no title as against the creditors. The deed, as to them, is " utterly void ; " and the subsequent conveyance from him would, as against the creditors, have no foundation. There is, therefore, no analogy between the conveyance of the grantee under the 27th, and under the 13th of Eliz. ; for in the former case he has a good title until a conveyance from him, or from the grantor to a bona fid (, purchaser, takes place ; whereas, in the latter case, his title, as against the creditor, was absolutely void from the begin 292 CASES IN CHANCERY. 3- 9 ning. It would seem to be a very inadmissible proposition, 1818. that the conveyance of a fraudulent grantee can be held valid ^^-^-^ against creditors, when the statute declares the original con- ROBERTS veyance utterly void as against them. ANDERSO* This subject was considered by the Supreme Court of Errors of Connecticut, in Preston v. Crofat, (1 Day's Rep. N. S. 527. note.) I have availed myself freely of the argu- ment in that case, in which it was decided, by the opinion of six judges to two, upon their statute of frauds, which is sub- stantially the same as the statutes of Elizabeth, that a bona fide purchaser, without notice, and for a valuable consid- eration, from a fraudulent grantee, had no title against the creditors of the fraudulent grantor. This may be considered as a decision under the 13 Eliz. ; and it is eminently distin- guished for accuracy of research and closeness of reasoning. The case was discussed at the bar and upon the bench, in an elaborate manner, and with *very great ability ; and though [ * 380 1 I entirely subscribe to the opinions of the majority of the Court, it is not \vithout the highest respect for the talent with which the opposite opinion was supported. In the revision of our statute law, the statutes of the 13th and 27th of Eliz. are connected together in one act, and the provi- soes in these statutes are consolidated in the 6th section of the act ; but I have taken it for granted, as being a settled rule, (and one which was established by the Court of Errors,) in respect to our revised laws, that the construction of those different provisions in connection with the general proviso, remains the same since as before the revision. And if the proviso, as applicable to the 13 Eliz., does not reach the case of a sale by a fraudulent grantee, (and all the judges in the case of Preston v. Crofat concurred in this,) then that decision is a direct and strong authority in this case, notwithstanding the statute of frauds in Connecticut may be destitute of such a proviso. The case before me shows the necessity and wisdom of the rule, which will not allow the fraudulent grantee to con- vey, so as to bind the creditors of the grantor ; for here the title set up is under the judgment of a creditor of the gran- tee, and ii it was to prevail, the creditors of the grantor would be effectually defrauded. The conveyance would enure to the exclusion of their debts, and to the sole benefit of the fraudulent grantee. Independent of the general doctrine, there are special reasons in this case why I think the present defendants cannot protect themselves, as bona fide purchasers, under a sale on execution against Sarah Johnson, the fraudulent grantee. 293 380 CASES -IN CHANCERY. 1813. The plaintiff Roberts was a creditor of Griffith, when ih s^^-v-^^ judgment was entered, and the execution issued against ROBERTS Johnson; and the execution authorized and directed the ANDERSON, sheriff to sell lands, whereof she was seised, on such a day. f*381 1 The statute alludes to a legal seisin, whereas, by *the statute of frauds, she had no seisin, as against the creditors of Griffith. The conveyance to her was, as to them, utterly void ; and judicial sales were not intended to defeat the operation of the statute of frauds. They operate only upon the fair legal title, and not where there is a want of title. The statute provides for the case of an eviction of a purchaser, on exe cution, on account of want of title in the defendant, and purchasers are presumed and understood to be on their guard. In this case the defendants only gave a nominal consideration of one dollar and fifty cents. It was truly a purchase upon speculation, and which could not have been made at such a price, at a bona fide private sale. But what appears to me to be decisive, is the fact, that Sarah Johnson never was in possession, as owner, under the fraudulent deed. There were no false lights held out to de- ceive the world ; and the case is not within the reason and policy of any rule calculate d to protect a bona fide purchaser. Immediately, or very shortly after the execution of the fraud- ulent deeds of December, 1807, Wm. Griffith leased the premises to Denniston, for five years, and he was in possession under that lease when the defendants made their purchase at the sheriff's sale. They are to be presumed to have had notice of this fact existing before their eyes ; and it was suffi- cient to put them upon inquiry, as to the pretended title of Sarah Johnson. They are not entitled to be considered as bona fide purchasers for a valuable consideration, without notice. They had notice, that here was no possession accompanying the deeds, and they paid only a nominal consideration. It is, accordingly, declared, that the two deeds to Sarah Johnson are fraudulent and void ; and that the plaintiffs ought to be quieted against any claim on the part of the defendants under those deeds, by a perpetual injunction. 294 Decree accordingly. CASES IN CHANCERY. *382 *W. COOPER and his Wife against REMSEN and others. A testator, by his will, dated September 25th, 1810, gave to his daughter, during her separation from W. C., her husband, one thousand dollars a year, which he charged on his real estate. W. C. and his wife were living separate when the will was made, but cohabited together in February, 1815, when the testator made a codicil to his will, (changing only the executors,) and also, at his death, but separated immediately after his decease, and continued to live separate until within a short time previous to filing the bill by W. C. and his wife against the ex- ecutors, for the legacy. Held, that the plaintiffs were not entitled to the legacy ; and the bill was ordered to be dismissed with costs. 1818. *^s~*+ COOPEK V. REMSEN. THE bill, which was for a legacy, stated, that Isaac C/ason, June 30. by his will, dated September 25th, 1810, gave to the plaintiff, Mrs. C., his daughter, the furniture he had delivered to her ; and, also, that he gave her, during her separation from the plaintiff W. C., her husband, one thousand dollars a year, which he charged on his real estate; and that, on the 14th of February, 1815, the testator, by a codicil, altered the names of the executors, but made no further change in his will. The bill further stated, that at the time of the decease of the testator, and at the time of making the codicil, the plain- tiffs were living and cohabiting together, in the city of New- YorJc, and that the testator well knew, at the time of making his codicil, and at the time of his death, that the plaintiffs were living and cohabiting together. That immediately after the death of the testator, the plaintiffs separated from each other, and have continued to live separate and apart ever since, until within two months previous to filing of the bill. The defendants having answered, the cause was set down for a hearing, on the bill and answer. R. Sedguick, for the plaintiffs. He cited 2 Pernon, 293. *3 AtTc. 364. 8 Mass. Rep. 178. 180. 2 Fernon, 33. 1 Mod. 300. Bristed, for the defendants, was stopped by the Court. THE CHANCELLOR. It is impossible to maintain this suit upon these pleadings. It is admitted that the plaintiffs had separated, and lived apart when the will was made. This appears from one of the answers, but not from the bill, which only states, " that, at the time of the date of the codicil, and at the testator's 295 [*383 383 CASES IN CHANCERY. 1818. death, the plaintiffs were living and cohabiting together, and ss.^-v**^ that the testator well knew it, and that immediately after the COOPER death of the testator, the plaintiffs separated from each other, REMSEN. an( ^ have continued to live separate and apart ever since, until within two months previous to the filing of the bill.' The bill states no other separation, nor assigns any cause for the one which took place. The inference, then, is, that the plaintiffs separated for the sole purpose of entitling themselves to the legacy. Such an act cannot receive countenance. It was immoral ; and yet the plaintiffs come here to calumniate the memory of their father, by charging him with making a provision for illegal and immoral purposes, and that it was intended to induce the plaintiffs to violate their matrimonial engagement. But I think the provision may receive a better construction. If the parties lived apart when he made his will, as one of the answers admits, the provision may have been humanely intended to provide a suitable maintenance for a deserted child. I can only judge of this case from the facts appearing in the pleadings ; and I shall accordingly dismiss the bill with costs to the defendants, who are executors, with liberty, how- ever, to the plaintiffs, on their suggestion, to amend their bill, within thirty days, on payment of costs. Decree accordingly. CASES IN CHANCERY. 1818. GOODRICH *ll. GOODRICH, Administrator, cum test, annexo, of P. FENDLKTON. MILLER, deceased, against N. PENDLETON. [Approved, 7 Johns. Cb. 133.] A. plea must rest the defence on a single point, creating, of itself, a bar to the suit. A plea in bar of the statute of limitations is bad, unless accompanied by an answer supporting it, by a particular denial of all the facts and circumstances charged in the bill, and which in equity may avoid the statute. As where the bill charged the defendant with fraud, and a breach of trust ; and he pleaded the statute of limitations in bar, and for answer in support of it, denied, in general terms, that he i-eceived the money mentioned in the bill, as trustee, the plea was held bad, and overruled, with costs, and the defendant ordered to answer in six weeks, with liberty to insist, in such answer, on the benefit of the statute. JPHINEAS MILLER, of Georgia, made his will, the llth of December, 1797, appointing Decius Wadsworth, Sam- uel Kellock, and his wife, Catharine Miller, his executors, and aied the 7th of December, 1803. The two executors first named declined to act, and the executrix administered, but did not take out any letters testamentary in this state. At the time of his death, the testator was a creditor of the United States to forty thousand dollars, and upwards, on a contract made for supplying the United States with ship timber. Some controversy having arisen between the execu- trix and the United, States, relative to this debt, the defend- ant, professing great friendship for the executrix, who resided in Georgia, wrote her a letter, dated December 4, 1806, in which he takes notice of that debt, and expressed a belief, that if he were duly authorized, he could obtain the money from the United States, and he, at the same time, enclosed a power of attorney for her to execute. The executrix received the letter, executed the power of attorney, and returned it to the defendant. The power of attorney was dated Jan- uary 30th, 1807, by which the executrix authorized the de- fendant *to demand and receive of and from the United [ * 385 States, the debt above mentioned, being the balance of account as awarded by arbitrators, to give acquittances for he same, and to compound, if necessary, any controversy respecting it, so far as she, as executrix, might lawfully do. The executrix, afterwards, by a letter written by her agent, Ray Sands, from Georgia, to the defendant, requested him not to act under the power, which letter the defendant re- ceived prior to the 26th of March, 1807. The defendant, VOL. III. 38 297 385 CASES IN CHANCERY. 1818. afterwards, in pursuance or under color of the power of ^^-NXV./ attorney, on the 13th of January, 1808, received from the GOODRICH United States 18,328 dollars, 50 cents, for the balance due to PESDLETON. tne estate f tne testator, and as attorney of the executrix, gave a discharge to the United States. The defendant paid over to the executrix 7,960 dollars, 11 cents, but retained the residue of the money so received by him, being 10,363 dollars, 39 cents, against her consent. The bill further stated that the sum so received by the defendant was less than the sum due from the United States to the estate of the testator, and less than could have been obtained before giving the power to the defendant ; that the sum actually received was by way of compromise, and which compromise the defendant was induced to make, not because he considered that sum as the full amount due, but with a view to obtain possession of it, and apply it to his own use. That the executrix, residing in Georgia, and the defendant in New-York, was unable to obtain the sum so withheld from her, by the defendant ; though the sum so received by him was as a trustee for the estate of the testator, and he was liable to account for the same as such trustee. That the executrix died in Georgia on the 3d of September, 1814. That on the 9th of October, 1817, the plaintiff took out letters of administration, with the will annexed, in New-York. That the defendant refuses to account with the plaintiff, for the money so received, or to [ * 386 ] pay it ; pretending that when he received *the power of at- torney as aforesaid, there was a debt due to him from the estate of the testator, and that it was agreed between him and the executrix, when he received the power, that he might retain the amount of his debt out of the moneys to be re- ceived by him. The plaintiff denied any such agreement ; or, if it was ever made by the executrix, it was through igno- rance of her duties, and from an undue confidence reposed in the defendant, who professed his desire, in soliciting the power, to promote her interest. That if any debt was due to the defendant, it was a simple contract debt unsettled, and that the estate of the testator was then indebted, by judg- ments and specialties, to more than the amount of all the assets, which the defendant knew ; and the agreement, if made, would have been a devastavit in the executrix, &-c. The bill prayed that the defendant might be decreed to account with the plaintiff, as administrator, with the will annexed, for the moneys so received by him from the United States, and to pay the same, &c. The defendant, on th6 13th January last, put in a plea and answer. For plea, he said, that every cause of action in the bill contained, accrued above six years before filing tha 293 CASES IN CHANCERY. 386 bill. That after the cause of action (if any) arose, to wit, 1818 in June, 1808, the said C. M., the executrix, was in this state, ^^~^^. and that she, by her will, appointed her daughter, Louisa GOODRICH Shaiv, executrix, who proved the will in Georgia. That the p D v- sum of money, (if any,) received by the defendant, was not received as trustee for the estate of P. M., the deceased tes- tator, or for C. M. as executrix, and, therefore, the defendant pleads the statute of limitations, in bar of the plaintiff's bill. That in support of the plea, and as to so much of the bill as charges that the money received by the defendant was re- ceived as trustee, for the estate of P. M., deceased, and that the defendant was, and is, accountable as trustee, he answers, and says, that he denies that the said money was received by him as ^trustee, but that the same was received by him on [ * 387 ] his own account, and retained by him, at the time of the receipt, for his own use, (being applied by him for the pay- ment of a debt justly due to him from P. M., in virtue of a special agreement between the executrix and him,) and not as trustee. The cause came on to be heard on the plea in bar and the answer in support of it. Hoffman and T. A, Emmet, for the defendant. To show that the statute of limitations, having commenced to run, continued, so as to bar the plaintiff, they cited 2 Afk. 610. 9 Vesey, 71. 76, 10 Vesey, 93. 3 P. Wms. 309. As to the form of the plea, and that a general denial that the de- fendant did not receive the money as trustee, was sufficient in its support, they cited Mitf. PL 212. 217. 2 A'k. 393. 395. 3 Afk. 70. 1 Anst. 59. 97. 6 Vcsey, 584. 586. 14 Vesey, 65. Coop. Eq. PL 226. Riggs and Boyd, for the plaintiff, contended, that the plea was bad, as being double and multifarious, and did not go to the whole bill. They cited 1 Bro. C. C. 404. 3 Anst. 738. 1 Anst. 14. 59. 2 Vesey, 107, 108. 6 Vesey, 17. Gilb. Ch. 58. Coop. Eq. PL 223. 228. 1 Afk. 64. Wyatfs Pr. Reg. 324. Mitf. 177. 3 P. Wms. 143. THE CHANCELLOR. This plea, with its attendant answer, is insufficient. 1. In the first place, it is multifarious, and contains distinct points. It states that the cause of action did not arise within six years, and that the plaintiff was barred by the statute of limitations ; it also states, that the sole acting executrix of Phineas Miller, deceased, made her will, and appointed her daughter. Louisa Shaw, executor and that the daughter had 299 383* CASES IN CHANCERY 1818. proved the will. This last point seems to be wholly uncon v^x^-^x nected with any fact forming the plea *of the statute : if it GOODRICH meant any thing, it meant that the plaintiff was not entitled tc PENDLITON tne cnaracter ne assumed, and that the suit ought to have been brought in the name of Z/otma ^Aaw. No doubt, it may, in certain cases, be a good plea, that a plaintiff, who assumes to be administrator, was not entitled to that trust ; and of this we have an example in Ord v. Huddkgton, cited in Mitford's PL p. 189. But I do not mean to say, that the fact thus stated would, if it had stood by itself, have been a good plea. It is sufficient, however, for the present, to observe, that it is put forward in the plea, as a matter of defence, or it would not have appeared there, and the rule applies, that a plea containing two distinct points is bad. Such a defective plea was overruled by Lord Thurlow, in Whitbreadv. Brockhurst ; (1 Bro. 404.) and Lord Rosslyn afterwards observed, (6 Vesey, 17.) that he would not allow a plea of the statute of frauds, when it was coupled with another defence. Every plea must rest the defence upon a single point, and upon that point create a bar to the suit. Such is the policy and con- venience of pleading, and the party must resort to his answer, if he wishes to avail himself of distinct matters. It is fit and, salutary that a plea, which mixes together different and dis- cordant matter, should be condemned ; for it uselessly encum- bers the record, and serves no other purpose than to produce confusion. 2. But I perceive a more important and stronger objection to the plea. The defendant is charged as a trustee, and with a breach of his trust, and with fraud in the execution of it. These charges formed an equitable bar to the plea of the statute, and they ought to have been fully, particularly, and precisely, denied in the answer, put in as an auxiliary to the plea. The bill contains the following charges, viz. that the testa- [ * 389 ] tor, Phineas Miller, had a large demand against the * United States ; that the defendant, professing a friendship for Catha- rine Miller, the widow and sole acting executrix, and who resided in the state of Georgia, wrote her a letter, in which he takes notice of her demand, and expresses a belief that, if duly authorized, he could obtain the money for her, and, at the same time, enclosed to her a power of attorney to be executed and given to him ; that under that solicitation she executed and sent him the power ; that she afterwards wrote him a letter by her agent, requesting him not to act under that power, and which letter he received in March, 1807 ; that the defendant, acting under color of the power, in Janu- ary, 1808, received from the United States 18,328 dollars 300 CASES IN CHANCERY. 383 and 50 cents, as for the balance due to the testator, which 1818. he received as such attorney and trustee, and in that char- v^^s/-^,' acter gave a discharge to the United States ; that he, contrary GOODRICH to her consent and his duty, appropriated, of that sum, 1 0,368 P END L'ETOK. dollars and 39 cents, to his own use ; that he received the money upon a composition, made by him with the United States, and which he was induced to make, not because he consid- ered the sum received to be the full amount due, but with a view to obtain possession of it, and to apply it to his own use, in discharge of some pretended unsettled debt by simple contract, alleged to be due to him from the testator ; that the estate of the testator was indebted, by judgment and special- ties, to more than all the assets, and which fact was well known to the defendant, and if the executrix had assented to any such appropriation, she would have committed a dcvas- tavit, which the defendant, from his professional knowledge, also knew. Upon such a case, as stated by the bill, and not denied by the ansVver, I might well say, with Lord Hardwicke, in Brere- ton v. Gamut, (2 Aik. 240.) when he overruled a plea of the statute, as not being particular enough, that " the case was of such a nature as entitled the plaintiff to all the favor the Court could show her." *I need not stay to show that the defendant, being charged [ * 390 ] with a fraudulent breach of trust, as an agent or trustee for the executrix, cannot set up the statute of limitations, so long as the trust is admitted. A trustee cannot protect himself by the statute of limitations in a suit brought by the cestuy que trust; it would be a waste of time to look for authorities in support of a principle so well known and established. () The only question that can now be made is, whether the de- f endant has sufficiently met and denied the charges in re- spect to the creation and breach of this trust. He contents himself with denying, in the plea, that the money received by him was received as trustee for the estate of Phineas Miller, deceased, and with denying, in the answer, that the money was received by him as trustee, and with averring that it was received on his own account, and retained for his own use, under some agreement not detailed. We have no denial of the letter professing friendship, and soliciting the appoint ment, nor any denial of the receipt of the letter from the ex- ecutrix, suspending the power, nor of the subsequent receipt of the money from the United States, under a composition made in the injurious manner and for the unjust purposes stated ; nor have we any denial that he gave the United States () Vide Decmtche v. Saretier, ante, p. 190 21G. 301 390 CASES IN CHANCERY. 1Q18. an acquittance or discharge, as attorney for the executrix \^^^-^_/ The defendant cannot be permitted to shelter himself undei GOODRICH the statute, from the responsibility of such grave accusations, PI:NDLETON ky a mere simple denial of the receipt of the money as trus- tee, while he leaves all those facts or charges uncontradicted which establish the existence of the trust, and show that he certainly did receive the money, as such agent or trustee. If such a general denial, without meeting specific charges, was sufficient, every trustee might escape from responsibility, by means of the statute, and be left to his own construction of what was intended by such a denial. But the rules of plead j * 391 ] ing are founded in better *sense, and in stricter and closer logic ; they require the defendant to answer, particularly and precisely, the charges in the bill, which go to destroy the bar created by the statute. The rule is, that the equitable circumstances charged in the bill, and which will avoid the statute, must be denied by the answer, as well as by the general averment in the plea; and the answer in support of the plea (and which is indis- pensable to its support) must be full and clear, and contain a particular and precise denial of the charges, or it will not be effectual to support the plea. The Court will intend that the matters so charged against the pleader, are true, unless they be fully and clearly denied. The facts requisite to render the plea a defence, must be clearly and distinctly averred, so that the plaintiff may take issue upon them ; and the answer in support of the plea must contain particular and precise averments, to enable the plaintiff to meet them, as the object of the answer is to give the plaintiff an opportunity of taking exceptions to the traverse of the facts and circum- stances charged in the bill, which, if true, would destroy the bar set up. These general principles of pleading are laid down in Lord Redesdale's Treatise of Pleading, (p. 212. 214. 236, 237.) a work of great authority on the subject: they are also to be met with in other treatises of established character. (Cooper's Eq. PL 227, 228. Gilbert's For. Rem. 58. Van Heythuysen's Equity Draftsman, p. 443.) They are, indeed, plain, elementary rules, which I should have apprehended could not well be mistaken by the equity pleader ; but we will, for a moment, look into the cases in which they have been declared and applied. In Price v. Price, (I Fern. 185.) the defendant pleaded that he was a bonafide purchaser for a valuable considera- tion ; but there being several badges of fraud stated in the bill, though the defendant in his plea had denied them, yet, because he had not denied them,- by way of answer, so that the \ * 392 ] plaintiff might be at liberty to except, the plea *was overruled. 302 CASES IN CHANCERY. 39S In The Sovi\ Sea Company v. Wymondsell, (3 P. Wms. 143.) 1813. the bill charged fraud, and the defendant pleaded the statute ^^^^i^> of limitations, and denied the matters of fraud ; but as there GOODRICH were some circumstances not fully denied, the defendant was P ND L' ET )jr ordered te answer the bill, with liberty to the plaintiff to ex- cept, and *he benefit of the statute was to be saved to the defendant In Walter v. Glanville, (3 Bro. P. C. 266.) sometime. referred to, to show, that if the matters charged are answered substantially, it will do, the only question was, whether the answer in support of the plea did not fully and particularly (as it did in that case) answer the material charges in the bill. The necessity of such an answer was evidently admitted by the counsel, and by the Court ; and so it must huve been understood by Lord Ch. King, who made the decree appealed from, and who, subsequently, in the case cited from P. Williams, required such a full and particular answer. Lord HardioicJce frequently noticed and supported these rules of pleading. Thus, in Brereton v. Gamul, already cited, the plea of a fine levied and of five years with non-claim was overruled, as not being particular enough. So, in 3 Aik. 70, Anon., the bill charged, that since the death of the intestate, the administratrix had promised to pay the note as soon as she had effects, and the administratrix pleaded the statute of limitations, and that she made no promise. But the chan- cellor held the plea to be too general, as there was a special promise charged ; and he ordered the plea to stand for an answer, with liberty to accept. Again ; in Hildyard v. Cressy, (3 Aik. 303.) the defendant pleaded a fine and non- claim to a bill for a discovery whether the defendant were a bona fide purchaser, for a valuable consideration ; and it ap- pearing that the defendant had not made a complete ansiver, and therefore not properly supported his plea, the plea was ordered to stand for an answer, with liberty to except. In Radford v. Wilson, *(3 Aik. 815.) the defendant put in a f * 393 1 plea of a purchase for a valuable consideration, without notice ; but as the instances of notice charged in the bill were particular and special, it was held that a general denial of notice was not sufficient, and that it must be denied as spe- cially and particularly as it was charged, and the plea was overruled. The modern cases before Lord Eldon contain the same rules. Thus, in Jones v. Pengree, (6 Vesey, 580.) there was a plea of the statute of limitations, and an answer. The former was objected to as multifarious, and as not covering enough ; and the answer was objected to as overruling the plea by an- 303 393 CASES IN CHANCERY. 1818. swering to the very parts to which the plea went, ana as no' \^^s-*+~' -lowering the material charge, which, if admitted, would have GOODRICH laivcn the case out of the statute. It was observed, upon PENDLETON * ne ar g umen t- that the plea ought to go to every thing, ex- cept the charges introduced into the bill to take the case out of the statute, and which it was necessary to answer. The plea was overruled as covering too much, and ordered to stand for an answer, with liberty to except ; and though that case (as well as the one which followed) does not strike me as distinguished either for precision or clear distinctions, yet it is important in this respect, that Lord Eldon adopts and approves of the rule, in the very words of Mitford, " that if any matter is charged by the bill, which may avoid the bar created by the statute, that matter must be denied generally, by way of averment in the plea ; and it must be denied par- ticularly and expressly, by way of answer to support the plea." The reason of the rule his lordship stated to be, that the plain- tiff was entitled, by exceptions, to compel the defendant to an- swer precisely to all the cases put in the bill as exceptions to the statute. In the next case, of Bayley v. Adams, (6 Vesty, 586.) there was a plea of the statute of limitations, supported [ * 394 ] *by an answer, and the decision was, that the plea was not sufficiently supported by the answer, because the charges in the bill were not sufficiently answered. There was a good deal of discussion in that case, on the point, whether the averments meeting the charges in the bill ought to be repeated in both plea and answer ; and two decisions in the Exchequer, (Pope v. Bush, and Edmundson v. Hartley, 1 Anst. 59. 97.) which held, that if both plea and answer met and denied the same charges by the averments, the answer would overrule the plea, were much questioned. I need not now enter into that discussion ; and even the Exchequer cases were de- clared to be confined to awards. It seemed to be admitted, throughout the case, that the answer, at least, must contain a full and particular denial of the charges ; and perhaps the better opinion is, that a general denial will be sufficient in the plea. The result is, that a plea of the statute is bad, unless ac- companied with an answer aiding and supporting it, by a particular denial of all the facts and circumstances charged in the bill, and which form an equitable bar to the plea of the statute. The plea in this case has no such accompany- ing answer, and it must be overruled. The usual order in such cases is, that the plea stand for an answer, with liberty to the plaintiff to except ; but in some of the cases the plea was declared to be overruled, and the defendant ordered to 304 CASES IN CHANCERY. answer, saving to himself the liberty to insist on the statute 1313 in the answer. That is the better course in this case ; for to order the plea to stand for an answer, with liberty to the plaintiff to except, would be prolonging the litigation, as we may take it for granted, from the palpable insufficiency of the plea as an answer, that the plaintiff would except, and the defendant be finally compelled to a fuller answer. I shall, therefore, overrule the plea, with costs, and order *the defendant to answer in six weeks, when he will still have [ * 395 ] the liberty of insisting on the benefit of the statute in his answer Order accordingly. THOMPSON against BERRY AND VAN BEUREN. [Affirmed, 17 Johns. 436. Applied, 9 Paige 166.] Where the plaintiff was sued at law, on notes alleged by him to be usurious, and he suffered a verdict and judgment to be taken against him, without making a defence, or applying to this Court, on a bil] of discovery, in due season, he was held concluded, and not entitled to relief. An assignment of a debt, usurious in its creation, to a third person, who has knowledge of the original transactions, will not cover it from the scrutiny of the Court. And where sufficient ground appeared to support the charge of usury, a reference was ordered to a master, to take an account, &c. THE bill stated that the plaintiff, having become embar- My \ rassed and pressed for money to pay certain debts, made a note, dated March 12, 1807, in favor of John Ward, (a broker,) for 500 dollars, payable in sixty days; and on the 19th of March, he made another note to J. W. for the like sum, pay- able in 60 days, for which he received of J. W. 1,000 dollars, but was obliged to allow him interest thereon, at the rate of two per cent, per month. That the plaintiff was under the necessity of renewing these notes, as they became due, and on such renewal, to allow the same rate of interest ; that the notes continued to be renewed, from time to time, until, by adding the interest to principal, he became indebted to /. W. in the sum of 2,089 dollars, for which he gave his note ; that J. W. was at that time himself indebted to the defendant Berry, by notes, on which usurious interest had been allowed to 13., at the rate of two and a half or three per cent, per rrtunth ; and the plaintiff, in order to satisfy Ward, *and en- [ * 396 J able him to comply with the demand of B., was compelled VOL. III. 39 305 CASES IN CHANCERY 1818. to make another note to Ward, for the said 2,089 dollars, ~^~^s-**~' and to procure it to be endorsed by John E. .RwsseZ ana THOMPSON Edward Childs, which note, so endorsed, was delivered to BERRY. tne defendant Z?.,at his request, in exchange for (lie notes of Ward to B. ; and on such exchange, B. exacted and received, for the thirty days the plaintiff's note had to run, interest, at two and a half or three per cent., and also fifty dollars, ad- vanced by Ward, as a premium for making the exchange of the notes. That on the 1st of November, 1810, the plaintiff made another note for 1,219 dollars, payable three months after date, to Evandcr Childs, being in consideration of the renewal of certain other notes, made at usurious interest. That on the 2d of November, 1811, the plaintiff made another note to E. Childs, for 1 ,976 dollars, payable in 60 days, on which usurious interest was exacted, and given in exchange and renewal of former usurious notes. That interest was paid on all the notes above mentioned, from their inception to their last renewal, at the rate of two and a half or three per cent, a month. That the defendant, to whom the notes were transferred by Childs, had knowledge of the usurious considerations, and did himself receive usurious interest; and that he became possessed of the last-mentioned note, for 1,976 dollars, as being the accumulated amount of prin- cipal and usurious interest, at the rate aforesaid, after many renewals of a note, or original loan, of one hundred dollars, given by Leu-is I. Costigan, to the defendant B., and endorsed by the plaintiff, from motives of friendship. That the plaintiff thus became liable, upon his three notes, to 5,284 dollars and 87 cents. That, prior to the 10th of May, 1811, the plaintiff became indebted to the defendant Van Beuren, (a broker,) in a cer- tain sum, by means of usurious loans, the amount of which the plaintiff could not now ascertain. That E. Childs, J. J. Ward, [ * 397 ] and John E. Russel, were also indebted *to Van Beuren on notes, all of which were founded on usurious loans ; that the defendants, confederating together to get possession of the plaintiff's property, procured, by their attorney, judgments to be entered upon the demands of the defendant B. against the plaintiff, by confession, bond, and warrant of attorney, given as security, amounting to 5,284 dollars and 27 cents, and also an assignment from the defendant V. B. to the defendant Berry, of four judgments against the plaintiff, and against Childs, Ward, and Russel, on their notes or endorsements, and which judgments, at the time of the assignment, were usurious, and well known and understood so to be. between the defend- ants ; and that the defendant B. further exacted large sums for forbearance thereon, particularly the sum of 228 dollars 306 CASES IN CHANCERY. 39- and 34 cents, from the plaintiff, in a note given by him, and 1818. endorsed by T. Colytr. That instead of the plaintiff being ^^-^-^^ indebted to the defendant B. the sums above mentioned, THOMPSON amounting to 6,363 dollars and 41 cents, there would be, if BERRY the account was fairly taken upon their money transactions, and lawful interest only allowed, in every case, upon the sums actually lent, a considerable balance due to the plaintiff. That the defendant B. has caused executions to be issued on the judgments against the property of the plaintiff, which is advertised for sale by the sheriff. The plaintiff waived all forfeiture, and was willing to pay what was legally and justly due, and prayed for an injunction, and for general relief, &c. Several affidavits were annexed, verifying the facts stated in the bill. The defendant B., in his answer, denied all knowledge of the transactions between the plaintiff and Ward, but believed it probable, that certain sums were paid on the renewal of the notes. He set forth, at length, the particulars of the transactions with Ward and the plaintiff, which it is unne- cessary to state here. The answer of Van Beuren also stated the particular transactions as to the notes mentioned ; and that in Sep- [ * 398 J tember, 1810, the notes being unpaid, he commenced suits against the plaintiff, Childs, Ward, and Russel, respectively, as maker and endorsers ; and issues having been regularly joined in the suits, they were noticed for trial at the sittings in New- York, in April, 1811, when inquests were regularly taken, by default, pursuant to notice, and that Childs was a witness for the plaintiff, in three of the causes, and judgments were entered up in the Supreme Court, on the 10th of May, 1811, on the verdicts so found by the jury. Replications were filed, but no proofs were taken on either side. The cause was brought to a hearing on the pleadings. Sampson, for the plaintiff. C. Baldwin, for the defendants THE CHANCELLOR. The plaintiff appears to have been most grievously oppressed, by a series of usurious exactions, and it seems indispensable to justice, that such a victim should be relieved. There is sufficient ground for disre- garding the judgment confessed in January, 1812, and fiw opening the accounts at large, from the very commencement of the dealings ; nor can it be permitted that the usury, ac- cumulated while the plaintiff was in the hands of Ward, 307 398 CASES IN CHANCERY. 1S18. should be covered by the assignment of that debt to the v^^-x,--..^ defendant Berry, who, by his own answer, appears to have THOMPSON had sufficient knowledge of those dealings. The statute BEKRY limiting interest is the old and established law of the land ; and it is the duty of the Court to support it. Usury vitiates every transaction; and even a bonajide holder of the tainted instrument cannot protect himself. The Court has nothing to do with the theories that are now afloat, condemning all [ * 399 ] legal limitations of ^interest. The policy of the law rests with the Legislature, not with the Courts of justice. But I am not prepared to allow, that the wise statesmen and pro- found jurists of every preceding age, have, on this point, been Utility and the abettors of a stupid and barbarous system. Laws against ag ainst usury have uniformly prevailed in all enlightened and com- usHry. mercial nations, ancient and modern ; and this fact weighs heavily against an untried theory. I should doubt whether there be any just analogy between the interest of money and the price of articles of commerce, which is left to regulate iiself. The loan of money creates the interesting relation of debtor and creditor, which has, in all ages of the world, pro- duced fearful consequences ; and to preserve the laws of justice in that relation, has hitherto required the utmost sagacity on the part of government, and the greatest wisdom and firmness in the administration of justice. I should ap- prehend dangerous effects upon the public morals, if creditors were left at liberty to demand what rate of interest they please, and compound interest when they please, without being under any admonition of human laws. I consider the statute against usury to be a check to hard-hearted avarice, and a protection thrown around the necessitous. " Nothing is clearer to my rnind," said that very able lawyer and states- man, Lord Ch. Redesdale, "than that, in a commercial coun- try, the statute of usury ought to be strictly enforced." As to the judgment in favor of Van Beuren, the plaintiff is concluded, and cannot be relieved. He suffered a verdict to be taken against him at law, when he might have pleaded the statute of usury, or, upon certain terms, obtained the aid of a bill of discovery. He neglected to use his means of defence in due season, and it is now too late. The Court accordingly directed a reference to a master to take and state an account between the plaintiff and defend- ant Berry ; and that, in taking the same, all the matters, accounts, charges, dealings and transactions, included in [ * 400 ] *the judgment for 5,284 dollars and 87 cents, confessed by the plaintiff to the defendant Berry, and mentioned in the pleadings, be opened from the time of the first loan from John I. Ward, as stated in the pleadings ; and that the de- 308 CASES IN CHANCERY . Pendant Berry be credited only with the moneys covered by 1818 the said judgment, and actually loaned to the plaintiff, or paid v^x--v-- to or for him, or received by him, together with the lawful KIRK interest thereon, from the times the same were loaned, paid, or received. And it was further directed, that the master make rests, at such times as it shall appear that the accounts were liquidated, or the notes renewed ; and that, for the better taking the accounts, the parties were to be examined on in- terrogatories, and to produce all books and papers in their custody or power, relating thereto, upon oath, before the master, as he should direct. Decree accordingly. KIRK against HODGSON and others. Where copartners in trade engaged a clerk, as book-keeper and cashier, at a fixed salary, for two years, with an understanding that he should have a larger compensation as the business extended and his duties increased ; and during the third year it was discovered that the clerk had overdrawn moneys belonging to the firm, and applied the same to his own use, of which he afterwards rendered a statement ; but a majority of the partners, afterwards, continued him in their employ : Held, that !:e was entitled to an increased compensation for his services after the second year, the fact of continuing him in service, after a dis- covery of his improper conduct, being an admission that he had not forfeited his right to an increased allowance. The act of a majority of the partners of a firm binds the rest. IN 1813, Eastburn, Kirk, and Downes, entered into part- June ift, an* nership as booksellers, and employed the defendant Hodgson Jul y" 2 - as a clerk, and as their book-keeper and cashier, *at a salary I * 401 ] of 500 dollars for the first year, and 600 dollars for every subsequent year ; and he continued in that employment until the filing of the original bill against him, on the 10th of April, 1816, and which stated, that, on the 2d of April, 1816, the plaintiff, K., having examined the books of account, with a view to ascertain the state of the accounts, discovered a large deficiency. That the defendant, on application, made a statement, in which he set forth 3,917 dollars and 84 cents, which he had loaned to himself, and secretly appropriated to his own use, and had not entered the same in the books, &c. The bill also stated, that -H. was about to leave the state, and prayed for a discovery, and an account, and for a writ of ne exeat. On filing this bill, in the name of E., K., and D. } and 309 401 CASES IN CHANCERY. 1818. which was sworn to by K., the defendant H. was held tc v^^-sx-^x' bail in the sum of 2,600 dollars. KIRK Eastburn, who acted for himself, and Doivnes, who wa= HODGS".*. absent, refusing to permit their names to be used as plaintiffs against H., K., on the 4th of May, 1816, filed a supple- mental and amended bill against H., E., and D., in which he charged, that the greater part of the sum taken by H. wa with the privity and connivance of the defendant E., and to deceive the plaintiff; and that H. was induced not to make the entry of the said sum, for the purpose of deceiving the plaintiff as to the state of the partnership funds. That E., claiming to act for himself and D., continues still to employ .ff. as a clerk of the firm, &c. Prayer for a discovery, .and that the defendant E. may be directed to discharge the defendant H. from the employ- ment of the firm, and that a receiver of the property and moneys of the firm may be appointed, and that the defend- ants may come to an account with the plaintiff, &c. The answer of Eastburn admitted the employment of H., as clerk, at a salary of 500 dollars for the first, and 600 dol- [ * 402 ] lars for the next year, with an understanding, ^however, that his salary should be increased with the increase of business, and of his services. That the deficit in the cash account was discovered in March, 1816; but //., being absent, drd not learn, until April 3d, 1816, that the deficit was wholly occa- sioned by the overdrawing of H., who then exhibited a state- ment, by which it appeared, that he had taken, and not charged in the leger, 3,917 dollars and 84 cents, and had taken and charged 653 dollars and 18 cents, making 4,571 dollars and 2 cents ; and had charged his salary for three years at 1 ,700 dollars, and 400 dollars for the board of E., K. and B. The defendant E. denied all knowledge of the moneys but what he derived from the account exhibited by H., and the schedule annexed. He denied all collusion with H., and any knowledge, or even suspicion, of the overdrawing by H., until informed as aforesaid ; and he averred, that no part of the money, so taken by H., was ever applied to the use of the defendant E. That, after the discovery of the fact of its being so taken, he continued H. in the service of the firm, but took the management of the cash concerns in his own hands. That he believed that the morals of H. were not depraved, but that he was led to overdraw from negligence in his private concerns, coupled with the expectation of an increased allowance for his services, rather than from any intention to deceive. That the defendant D. was then in Europe, and had left the defendant E. a full power of at 310 CASES IN CHANCERY. 40S torney, dated 29th November, 1815, to act in his name, and 1818. for him. S^X-N/--*^ The defendant Downes also put in his answer on the' 1st KIRK of June, 1817, which agreed with that of E. HODGSON The defendant H., in his answer, admitted the overdrawing by him, but denied that it was done secretly, or with any fraudulent views, but under circumstances he deemed excu- sable. That he was assured by E. that, after his second year, his salary should be enlarged, as the business extended, and his duties increased ; that the business increased, and his [ * 403 ] services were very great, and that he continued to perform his services from a conviction that he should receive an in- creased compensation ; that he had no idea that he had overdrawn to so large an amount, until in March, 1816, when he discovered it to his astonishment, but believed that the firm would allow him an increase of salary equal to the deficit. That his salary ought to have exceeded 1,000 dollars per annum, and, also, a compensation for extra t services. Several witnesses were examined in the cause, which was & !* brought to a hearing the 15th of June. T. A. Emmet, for the plaintiff. Wdls and Bristed, contra. THE CHANCELLOR. This is a suit by one of the three July t copartners of the late firm of Eastburn, Kirk, and Co., against the other two copartners, and against their clerk and book- keeper. Hodgson, the clerk, is charged with a breach of trust in secret and unauthorized appropriations of money ; and Eastburn, one of the copartners, acting in the name of ' himself and the other partner, Downes, is charged as an ac- complice, and that the moneys were taken with his privity and connivance, and for his use. The defendants have all answered, and proof has been taken. The charges as to the clerk are admitted, but there is no proof of any of the injurious allegations against East- burn; nor have they even been attempted to be proved. There is no ground for any decree as against him, and he is justly entitled to the costs of his defence. It is stated, and admitted, that Eastburn acted in the name and on the behalf of Downes, who was then absent in Europe, and that he thus united in himself the powers of a majority of the firm ; but the charges in the supplemental bill of privity and connivance OP .he part of Eastburn are confined to *him individually, and [ * 404 do no*, refer to his representative character. They are per- sonal accusations ; and though the plaintiff is justly chargeable 311 104 CASES IN CHANCERY. 1818. w ^ costs for having made them, there does not seem to be \^*~^-**-s the same reason why he should pay costs also to the defend- KIRK ant' Dowries. He is not implicated in the allegations, and he Ho V so was ^ necess ity rnade a party defendant, since his agent and partner, Eastburn, refused to permit either of their names to be used as complainants. The only real question in the case is, as to the allowance to Hodgson, and what special directions ought to be given to the master, in taking and stating the account against him. There is no dispute as to the amount of moneys which Hodgson has received, and must account for. It was fully and frankly disclosed by him when the discovery of his over- drawings was first made. It is also agreed, that his certain salary was 500 dollars for the first year, and 600 for each of the two succeeding years ; but there was also encouragement given, and assurances made, of an increase of compensation. The defendants Eastburn and Downes admit, in their an- swers, that there was an understanding with him, when he was employed, that his salary should be increased with the increase of business, and of his services. It is also proved by Eastburn, in his testimony as a witness, that he proposed to the present plaintiff, that Hodgson should have an increase of salary as the business increased, and the plaintiff agreed to the proposition, and this proposal he then communicated to Hodgson. Another witness (/Fm. B. (jtilley) has heard the plaintiff say, that Hodgson ought to have a larger salary. and that the one originally agreed on was inadequate. The same admissions of the plaintiff were also made to Wm. Van Hook. After these acknowledgments of all the partners, and after these assurances originally given to Hodgson, there [ * 405 ] ' can be *no doubt of his claim to a compensation for the two last years, beyond the original stipulated sum. Not only the increase, but the amount of that increase, has also been ascertained and admitted. The witnesses Gilky and Van Hook both think, that the present plaintiff mentioned to them the sum of 1,000 dollars, as the proper salary allow- ance, and Eastburn says also, that the services of Hodgson were worth that sum. The admissions and proof are uni- form and abundant in favor of his great, incessant and labo- rious services, as clerk. A witness examined on the part of the plaintiff (D. D. Arden) says, that there is no general rule about the salaries of clerks in bookstores ; that he thinks 600 dollars " a very moderate " compensation ; that Hodgson devoted 14 hours a day to his duty, and earned 1,000 dollars a year. I have no doubt, therefore, of the just title and equitable claim of the defendant Hodgson to an increased allowance 312 CASES IN CHANCERY. 405 to 1,000 dollars, unless that title and claim have been lost by 1813. his breach of trust. I was strongly inclined to think, upon ^r^s-**^, the argument, that the defendant Hodgson had forfeited that KIRK claim, but upon a more mature examination of the case, I do not now think so. A majority of the firm continued him afterwards in their employment ; and this fact is decisive in favor of the continuance of his rights. It is evidence, also, that he had not forfeited their confidence, and that the over- drawings charged and confessed were not understood by them to be acts of intentional fraud. They csnnot be set up by the firm of Eastburn, Kirk, and Co., against his claim, founded on their promises and acknowledgments, and his services. That firm had a perfect right to continue him, if they thought proper. They were the best judges of the case, under all its circumstances ; and they are estopped from setting up these acts of his, as ground of discharge to themselves from prior and just engagements. It is true that the plaintiff, as one of that firm, did not *agree to continue Hodgson as clerk, but the majority of the [ * 406 ] firm had an equal right to exercise their judgment, and to continue him. The act of the majority must govern in these little communities, as well as in every other, unless special provision be made to the contrary. Where the major part of the part owners of a ship settled an account of the profits, it was held to conclude the rest. (Robinson v. Thompson, 1 Fern. 465.) All that can be required is good faith in the discharge of copartnership duties ; and there is nothing in this case to impeach it. I shall, therefore, direct, that the master allow to the defend- ant Hodgson a salary of 1 ,000 dollars a year, for the last two years, instead of the 600 dollars originally stipulated. With respect to the charges of Hodgson, for boarding the plaintiff, and the defendant Eastburn, and Messrs. B. and /., the master is to inquire whether the whole or what part of these charges has been included in the settlement of the copart- nership accounts of Eastburn, Kirk, and Co., by the arbitrators to whom these accounts were referred, and .to admit such of them as have been allowed by the arbitrators. The master is, also, to be directed to take and state an account of the separate interest of the plaintiff in the balance that may be found due from the defendant H. to the house of E., K., &/ Co., and of the separate interests of the defendants E. and V., and report thereon. Decretal order accordingly. VOL. III. 40 313 407* CASES IN CHANCERY. 1818. v. *SHARP against SHARP impleaded with HARNED. SHARP. \Vherethe widow of a deceased partner filed a bill against the executon of her husband, for a discovery and account of t4ie copartnership es- tate and effects, and the surviving partner demurred to that part of the bill which sought a discovery, alleging that it might subject him to pen- alties under the revenue laws of the United States, but without show- ing how or for what cause he should incur a penalty by a discovery, the Court overruled the demurrer ; such a general allegation not be- ing sufficient to bar the discovery, in the first instance. Wj 2. THIS was a bill by the plaintiff, as widow of Robert Sharp, deceased, against the defendants, as executors of Robert Sharp,, with whom the defendant, John Sharp, was in copartnership at the time of the death of Robert Sharp. The bill was for a discovery and account of the copartnership estate and effects, in which the plaintiff was stated to be interested under the will of her late husband. The defendant, John Sharp, answered parts of the bill, and demurred to so much of the bill as sought a discovery of the nature and object of the trade carried on by the late copart- nership, on the ground that the plaintiff had no interest therein, and that a discovery might subject the defendant, to pains and penalties, under the revenue laws of the United States Caines, for the defendant, and in support of the demurrer. Griffin, for the plaintiff. THE CHANCELLOR overruled the demurrer, and ordered the defendant to answer. He said, that the plaintiff disclosed by her bill that she had an interest in the copartnership prop- erty, and was entitled to a full discovery. There was nothing stated or required, that necessarily led to any forfeiture ; and [ * 408 ] if such a general allegation was sufficient to ^protect a party from making a discovery, it could be used as a pretext in every case. It ought to appear either by the bill, or be stated in the demurrer, why and wherefore a forfeiture would be the consequence of the discovery. In Chauncey v. Tahourden, (2 Atk. 392.) it was shown by the demurrer. How far it might be material or proper to disclose, in much detail, the nature and objects of the commerce carried on by the house, might be a question hereafter. The defendant could no' bar all inquiry, in the first instance. Demurrer overruled. 314 CASES IN CHANCERY. 403 1818. Ex parte irt j. r\ QOACKEN- Lx parte C^UACKENBOSS. BOSS. Application, under the statute, sess. 24. ch. 30. sect. 7. for infant trus- tees to convey, &c., must be by petition, and not on motion ; and the course is to direct a reference of the petition to the master to ex- amine, and ascertain the facts, and report the same, with his opinion. It seems, that if the trust is not in writing, or the infant has an interest, or if it be a doubtful case, the cestuy que trust will be put to his bill. PETITION of the heirs and devisees of John P. Quack- July 9. enboss, deceased, stating that Isaac Hanson, in his lifetime, and at the time of his death, held certain lots of land, and also certain choses in action, in the petition mentioned, in trust for them, and under an express trust created by deed, and that he died, leaving two infant children. Prayer, that those infant trustees might be directed to convey the land, and assign the securities to the petitioners, &c. THE CHANCELLOR. This application is under the 7th section of the act of the 24th sess. ch. 30., concerning idiots, Lunatics, and infant trustees, and which section was copied from the stat. of 7 Ann. c. 19. The statute gives *the juris- [ * 409 J diction of the Court, by petition ; and Lord Eldon, in Evelyn v. Forster, (8 Vesey, 96.) refused to make an order in such a case upon motion merely. If the trust did not appear in writing, or if the infant had an interest, or if it was a doubtful case, the Court has said (ex parte Vernon, 2 P. Wms. 548., and see, also, 2 Vesey, 559.) that it would not interfere, even on petition, but would put the cestuy que trust to his bill. In this case, it is only necessary to ascertain whether the infants be really trustees within the act, according to the allegation in the petition, and the usual course is to order a master to inquire and report. This was done in the case ex parte Pernon, and also in the cases ex parte Benton, and ex parte Burton. (Dickens, 394, 395.) I shall, accordingly, direct, that the petition be referred to one of the masters of this Court, to examine into the matters of fact stated therein, and to report the same, with his opinion thereon, and that he give notice to the guardian or next friend of the infants, of the time and place of such inquiry. Order accordingly. 315 109 CASES IN CHANCERY. 1818. DENNING SUIJH. DENNING against SMITH and others. Where a bill is filed by an executor, for a settlement of his acco'in and for disclosures as to distribution, &c., the defendants are not en- titled, on petition, to an inspection of the accounts and vouchers of the executor, to enable them to answer the bill. July 20. GRAHAM, solicitor for defendant, upon petition, moved, that the plaintiff deposit with the register his accounts and vouchers, as surviving executor of Thomas Smith, who was * 410 ] surviving executor of William Smith. The bill *was for a settlement of his accounts, and for directions as to distribu- tion ; and the object of the petition was, to have an inspec- tion of the papers, to enable the defendants to answer the bill. Riggs, contra, contended, that the motion was unprece- dented, vexatious, and unnecessary; that when they came to the accounts before the master, all the accounts and vouch- ers must be produced and examined. The bill. only requires the defendants to admit what they have received, or deny what they are charged with. Orders have never gone far- ther than to require, before answer, the production of deeds, set forth with a profert. Per Curiam. Motion denied. 316 CASES IN CHANCERY. 410 BEEKMAN and others against WATERS and others. [Followed, 1 Paige 425.] The plaintiff, on petition, after answer, and exception to the answer, may amend his bill, by adding new charges and new parties, upon payment of costs, if a new or further answer be required; and the plaintiff must amend the office copies of the bill taken out by the de- fendants who have appeared, and who are entitled to six weeks, within which to answer the amendments. In case new defendants be added to the bill, the plaintiff may have pro- cess ofsubpwna, and proceed against them in the usual course. RIGGS, for plaintiffs, on petition founded on affidavit, moved for leave to amend his bill, after answer and excep- tions to the answer submitted to be answered, by adding new charges and new parties. W. Duer, contra. *THE CHANCELLOR thought that the plaintiff, upon the reasons shown, was entitled to the motion, and that the only question was as to the terms. The bill may be amended after answer, according to the 15th and 17th rules of this Court. It is allowed in England, upon payment of a fixed sum for costs, as 20s., 405., or 3/. ; (2 Bro. 291. Dickens, 58. Newland's Pr. 81.) but we have no such practice; and if a new or further answer be required, it ought to be upon payment of costs to be taxed. The following order was entered : " Ordered, that the plaintiffs be at liberty to amend their bill, by adding such other parties defendants as they shall be advised, and by in- troducing such further statements and charges as they shall deem necessary ; and that, when such amendments shall be made, and the plaintiffs shall have amended the copies of the bill already taken out by the defendants who have ap- peared and answered, that the defendants shall answer such amendments within six weeks thereafter, and after service of a copy of this order on their solicitor, or, in default, that the bill, as amended, be taken pro confesso against them, and an order for that purpose may be entered ; that such amend- ments shall not prejudice the injunction issued, nor invalidate the order for taking the bill pro confesso against two of the defendants ; that, with regard to such new defendants as may be added to the bill, the plaintiffs may have process of sub- poena against them, and proceed thereon as usual." J17 1818. *-NX-*<* BEERMAN v. WATERS. August 3 [*4ll 412* CASES IN CHANCERY 1818. *-v^^ WOODWARD v. SCHATZELL. August 17. [*413 *WOODWAKD against SCHATZELL and others. [Followed, 2 Paige 619.] A writ of ne exeat repubhca may issue against a foreigner, or citizen of another state, and on demands arising abroad ; but the writ will be discharged on the defendant's giving security to abide the decree. To sustain the writ, sufficient equity must appear on the face of the bill. Mere apprehension that the defendant will misapply funds in his hands, or abuse his trust, is not sufficient GARR, for the plaintiff, moved for a writ of ne exeat and injunction. The bill stated that on the 1st of September, 1815, the plaintiff and Alexander Cranston of Neic-York, Andrew Al- exander of Belfast, in Ireland, and the defendant S. of Lexington, in Kentucky, entered into partnership for the pur- pose of transacting mercantile business in Kentucky. That the plaintiff was to receive one third of the real profits. That large sums were advanced by the other two partners, and 13,000 dollars by the plaintiff. That the plaintiff con- ducted the business, part of the time, in Kentucky, and the defendant & part of the time. That the defendant . dis- solved the partnership on the 24th of September last, on the previous request of the other partners. That the defendant S., in October last, sold at auction partnership effects to the amount of 11,500 dollars, on six months' credit. That the defendant . closed the accounts in the Kentucky banks, and transferred the partnership balances to his own credit. That the partnership owned other large property standing in the name of the defendant S. That the defendant S. designs to retain the sole use and control of the partnership effects , that he will be unable to respond, if the effects should be mis- used, and not duly applied ; and that he intends to delay closing *the accounts, and ivill withhold from the plaintiff his just share. Prayer for a ne exeat, and for an injunction restraining the defendant S. from further interfering with the effects, &c. Affidavit that the defendant S. intends to depart for Ken tucky, and is indebted to the plaintiff in 12,000 dollars. THE CHANCELLOR. As the defendant is a resident in Kentucky, and as the transactions upon which the demand of the plaintiff is founded, took place there, it might be made a question whether the ne exeat ought to apply to the case. Lord Eldon, in Dick v. Swinton, (1 Fes. fy Bea 371.) observed, that " this writ was a most powerful instru 318 CASES IN CHANCERY. 413 ment; and he never applied it without apprehension." But ]818. upon a review of the cases, I think the jurisdiction and prac- \^^~v~^y tice of the Court are settled in favor of the writ, when applied WOODWARD even to the case of foreigners, and to demands arising abroad. SCHA T ZIXL Lord Thurlow observed, in Atkinson v. Leonard, (3 Bro. Ch. Cas. 222.) that Lord Northington thought this process ought not to be extended to foreigners ; yet, in that very case, Lord Thurlow allowed it, in favor of one inhabitant of the island of Antigua against another ; and he afterwards, upon argument, consented to discharge the writ, on condition that the defendant gave sufficient security to abide the decree. So, also, in a much earlier case, (IVhitehead v. Marat, Bumb. 183.) the Court of Exchequer obliged a defendant, who was a foreigner, to give security to abide the decree until answer and further order. The writ was also allowed to one foreigner against another, in De Carriere v. De Calonne, (4 Ves. 577.) but Lord Rosslyn admitted, that it was " very delicate to interfere as against foreigners, whose occasions or misfortunes had brought them here, by an application of this writ to *them ; " and he thought it ought to be simply a case of equity, [ * 414 ] affording no ground to sue at law. Lord Hardwicke is stated to have said, in Robertson v. Wilkie, (Amb. 111. Dickens, 786. S. C.) that it was a reason with him not to grant the writ where the defendant lived out of the kingdom, and the transaction was on the faith of having justice where he resided. But in that case, the parties were partners, and the plaintiff resided in London, and the defendant in Minorca; and the balance of accounts was sworn to, and the ne exeat allowed, and afterwards discharged, on the defendant giving security in a mitigated sum to perform the decree. These cases are all decidedly in favor of the writ, or its substitute, security to abide the decree. So, again, in Roddam v. Hethcrington, (5 Vesey, 91.) the ne exeat was allowed in favor of a resident in England against a resident in the West Indies, upon a demand arising there ; and the counsel for the defendant would not raise the ob- jection that the defendant resided abroad, because, as they observed, Lord Thurlow, in Atkinson v. Leonard, after a considerable discussion, had overruled that objection. In Howdcn v. Rogers, (1 Ves. fy Bea. 129.) the writ was granted against a defendant resident in Ireland, who came to England only for a temporary purpose ; and though the de- mand arose in Ireland, Lord Eldon said he could not " dis- tinguish that case from Atkinson v. Leonard, and several subsequent cases, from the West Indies, from Scotland, and from Ireland. The question was, whether he had any dis- 319 414 1818. ^v * BEEKMAN v. PECK. [*415] CASES IN CHANCERY. cretion to refuse the writ a question upon which he was bound by those decisions ; and the utmost he could do for the defendant's relief, was to discharge him on giving security tc abide the decree." The real point, then, in this case, is, whether the plaintiff shows sufficient equity on the face of his bill to sustain the writ ; and I incline to think he does not, and that a *proper case ought to be made out to my entire satisfaction. The defendant has strictly done nothing which he was not au- thorized to do as a partner ; and though the plaintiff appre- hends that the defendant may misapply the funds and abuse his trust, yet no such acts have actually taken place, and the accounts have not been settled. It does not appear to me that the mere apprehensions of the plaintiff will warrant the ne exeat, or even the injunction restraining the defendant from interfering with the partnership accounts and effects. Motion denied. BEEKMAN against PECK. [Applied, 7 Paige 512; 8 Id. 180.] A decree entered by default, and enrolled, was set aside, on motion, on payment of costs, the plaintiff having been previously served with notice of the motion, and copies of the affidavits, on which it was in- tended to be made August is. A DECREE, by default, was entered in June last, and enrolled. Sherwoad, for the defendant, now moved to set aside the decree, on affidavits, showing that the defendant had merits, and that the answer was filed in June last, and that the delay in filing the answer arose from unavoidable circumstances The solicitor for the plaintiff had been duly served with copies of the affidavits, and notice of the motion. Wood-worth, contra, objected to the application by motion and contended that it ought to be by petition ; and he further objected, that the decree had been enrolled, and \ lat the delay was not sufficiently accounted for. [* 416 ] *THE CHANCELLOR was of opinion that the application in the shape of a petition was riot indispensable, and that the 320 CASES IN CHANCERY. 41 (J plaintiff, by means of the previous notice and service of copies 1818 of the papers, had all the requisite information. The motion \^*-^~*+-<> was granted, on payment of the costs of the default and sub- SANGER sequent proceedings ; and the injunction, which had been WOOD made perpetual in the decree, by default, was continued until further order. SANGER and others against WOOD. Where the plaintiffs sued the defendant on his contract at law, and, a few days before the trial of the cause, discovered facts amounting to a fraudulent concealment by the defendant, but proceeded to take a verdict for the amount claimed, on which judgment was entered up ; and they, afterwards, filed their bill, in this Court, for relief against the contract, on the ground of the fraud ; Held, that by going to trial, and taking judgment, the plaintiffs had made their election of their remedy at law ; and the remedies at law and equity being inconsis- tent, they were bound by that election. Any decisive act of the party, with knowledge of his rights, and of the fact, determines his election, in the case of inconsistent remedies. THE bill stated, that in April, 1812, the plaintiffs and de- J 29, and fendant, by purchase at a sheriff's sale, were tenants in com- ug ' ' mon of a moiety of a grist-mill, saw-mill, and carding-machine, and about 40 acres of leasehold estate adjoining thereto, in lot 98, in Manlius, and the proportions of interest of each were stated in the bill, those of the plaintiffs amounting to- gether to 2,128 dollars and 48 cents, and that of the de- fendant to 1,203 dollars and 50 cents. The defendant was owner of the other moiety, and it was agreed that he should take charge of, and demise the estate. On the 1st of Octo- ber, 1812, the defendant demised the whole to Wm. Warner, for two years, at a rent of 700 dollars per annum, one year's rent being paid in advance. * Warner soon after absconded ; [*417j and on the 30th of November, 1814, the defendant, with the assent of the plaintiff, sold the premises to Jonathan Jones, Jacob B. Merrick, and Charles MerricJc, for 6,500 dollars, payable by instalments in ten years, with interest, and the purchasers took possession of the premises. The bill further stated, that the defendant represented to the plaintiffs the impossibility that the purchasers would ever pay for the prop- erty, and the plaintiffs were thereby induced to sell their in- terest in the premises to the defendant, for 866 dollars, being less than half of the amount at which it had been valued ; VOL. III. 41 321 417 CASES IN CHANCERY. 1818. an d the parties signed a memorandum of this sale on the ^^-^~**-<' 4th of September, 1815, in which it was agreed, that all rents SANGER due from Warner, or for the premises, or recoverable from WOOD. Jones and Merricks, on rescinding the sale to them, should be divided between the parties, in the same manner as if the sale had not been made ; and " if the sale to Jones and Mcr ricks could be enforced, it is to be. " That the plaintiffs have lately discovered, that before, or about the time the first instalment on the sale to Jones and Merricks became due, in the autumn of 1815, Jones offered to the defendant to make payment of the 6,500 dollars, in window-glass, at the wholesale price, and to give good security for that amount, with interest. That W. Soulden and Co., by letter, offered the defendant security to perform any terms of payment Jones should make, payable in window-glass ; and on the 16th of February, 1816, the agreement was re- duced to writing, and executed by the defendant, and W Soulden and Co., by which the latter covenanted to pay the defendant 6,500 dollars, and interest, then amounting to 7,000 dollars, in window-glass, at the wholesale price ; viz 1,400 dollars in hand, and the like sum yearly, for four years with interest ; and to give his bond, and a mortgage on the premises, as security ; and that, to indemnify W. Soulden and Co., it was agreed between the defendant and Jones, (who f*418] had become solely interested *in the purchase by him and the Merricks,} that the defendants should convey the prem- ises to IV. Soulden and Co., and the defendant exonerated Jones from any claim for the purchase money, or for the use and occupation of the premises, from the time of the sale to Jones and Merricks, in 1814, to the 16th of February, 1816. That the defendant received the 1 ,400 dollars of W. Soulden and Co., on the contract. That the defendant concealed from the plaintiffs that he had obtained any security from W. Soulden and Co. for the moneys due, on the sale, to Jones and Merricks; and on the 29th of April, 1816, applied to the plaintiffs to carry into effect the contract of sale of the 4th of September, 1815, on the ground and pretence that the contract of sale to Jones and Merricks had failed. That the defendant was then bound, by his situation and agency, to have made a full disclosure to the plaintiffs of the subsisting contract with W. Soulden and Co., and of his agency therein ; but the plaintiffs were left in ignorance of the fact, and were led to believe, from the prior representations of the defend- ant, that all prospect of payment from Jones and Merricks was hopeless ; and that the matter remained in the same situation as on the 4th of September, 1815 ; and the plaintiffs executed a release, dated 29th of April, 1816, to the defend 322 CASES IN CHANCERY. 418 ant, ot all their interest in the premises, under the agreement 1818. of the 1st of April, 1812, upon the terms of the agreement ^*~~ vw^ of sale of the 4th of September, 1815. That, continuing in SANGER ignorance of the defendant having obtained the security from . VVOOD IV. Soulden and Co., the plaintiffs sued the defendant at \a.w, for the moneys due under the agreement of the 29th of April, 1816, and the cause was tried at the Madison circuit, in 1817. That, a few days before the trial, the plaintiffs obtained some information of the fraud of the defendant, in suppressing ail information of the security given to him by W. Soulden and Co., and the plaintiffs, at the trial, offered to prove the facts above stated, to establish the fraud; but the *judge before [*419] whom the cause was tried, was of opinion, that the plaintiffs' remedy was in chancery, and directed a verdict to be taken for the plaintiffs, for the balance of rent received by the de- fendant of W. Warner, being 116 dollars and 6 cents, due the plaintiffs, and for the sum of 866 dollars, mentioned in the agreement of the 29th of April, 1816. That the plain- tiffs waive all claim at law to the moneys so recovered, ex- cept for the rent, and submit their claim to the Court ; and vrayed, that they may be relieved from the release made by them to the defendant, and be let in to the benefit of the secu- rity given by W. Soulden and Co. to the defendant ; and that the defendant may account for all sums received by him, or reserved on any lease of the premises, &c. The defendant, in his answer, denied that he was ever the agent of the plaintiffs, in relation to the premises. He admitted, that on the 30th of November, 1816, he agreed to sell the premises to /., M., and M. for 6,500 dollars, payable in instalments, with interest, and that the contract comprises the whole interest of all the parties ; but he denied that he made this agreement with the assent of the parties, or either of them ; or that he made it as agent of the plaintiffs ; but icted in his individual capacity, and covenanted to lease the premises for the remainder of the term which he and the plaintiffs had in the same, and that the plaintiffs should exe- cute the lease. The defendant alleged, that the inability of /., M., and M. to perform their contract was known to the plaintiffs ; and that the plaintiff G. proposed a division and sale of the premises, on the ground of that inability ; and that the property was, accordingly, advertised for sale, at auction, by all the parties ; and the defendant, as the highest bidder, purchased it at 2,705 dollars ; and the parties, after- wards, executed the memorandum of the agreement of the 4th of September, 1815. That he never received any pay- ment of /., M., and M., nor any rent; that, conceiving that *the plaintiffs had no interest in the contract with W S. &/ [ * 420 323 420 CASES IN CHANCERY. 1818. **~N/-*^ SANG KB. v. WOOD. June 29. August 24. Co., he did not inform them of it ; and denies any fraudulen intent or concealment, &c. The cause came on to be heard on the bill and answer ; and was argued by Wells, for the plaintiff, arid Riggs, for the defendant. THE CHANCELLOR. If the plaintiffs had done uothing to affirm the contract of the 29th of April, 1816, after the agreement between the defendant and W. Soulden and Co. had come to their knowledge, I should have been strongly inclined to relieve them from that contract. It is true, the allegation of fraud, and of any direct and authorized agency, on the part of the defendant, is denied in the answer ; and we have no other proof in the case but such as the answer and the documents mentioned in the pleadings afford. But, from those documents, I am induced to think, the defendant was bound to have disclosed to the plaintiffs, in April, 1816, his prior dealings with Soulden, as well as the new agree- ment with Jones, of the January preceding. The relationship between the parties arising under the original contract of 1812, and the agency which the defendant, in fact, assumed in the management and disposition of the entire interest of all the parties, imposed upon him the duty of a frank and full disclosure of the whole case, when the parties came to a final conclusion of their concern, in April, 1816. If the contract, of the 4th of September preceding, had been defin- itive and absolute, then the defendant would not have been under any obligation to disclose his subsequent negotiations with Jones and with Soulden, who came in to assist Jones, But that contract of sale was not absolute, for it was expressly declared, that, in case the sale to Jones and Merricks could be enforced, it was to be, and the contract in that case to be void. The plaintiffs ought to have been informed what Jones had since done, and what Soulden had since promised, so *that they might have exercised their judgment on the question, whether the original agreement could have been enforced, and how far the substitution of Soulden and Co. was a mere continuation (as I think it was) of the original agreement. For these reasons, I should have been inclined to have relieved the plaintiffs. The case, however, as it appears before me, is not of a very gross kind, or one presenting claims for any extraordinary indulgence In my opinion, the plaintiffs may justly be considered as having elected to take their remedy at law under the contract of April, 1816. The bill states that the plaintiffs sued at law under that last contract, and which was, of course, in affirmance of it ; and 324 CASES IN CHANCERY. 4 that, a few days before the trial at the Madison circuit, they 1818. discovered the fraud now set up as a ground to rescind that ^*-^~* contract. And yet, notwithstanding that discovery, they go SANGER to trial in the suit on that contract, and take a verdict for the moneys due from the defendant under it, and, afterwards, judgment is entered up by them on that verdict ; and, in April last, they even apply to this Court for leave to take out execution at law on the judgment so recovered. The last motion was, indeed, made on the ground that it might not prejudice their rights in this suit ; but I am induced to think they had already waived those rights by their previous pro- ceedings. The suit at law, and the action here, are incon- ktent with each other, since the one affirms, and the other leks to disaffirm, the contract in question. It is probable th i amount of the judgment may have been already collected, and the plaintiffs could not, for a moment, be permitted to keep the moneys recovered under that contract, if they should succeed in their bill to have it annulled. In a case where the remedies sought are so absolutely repugnant to each other, the plaintiffs ought to have made their election at on ;e, after they came to the knowledge of the facts. If they meant to have disannulled the contract of April, *1816, then it was vexatious, as well as useless, to have gone on to A triul, and judgment and execution. They had no right to iry the experiment how much they could recover at law under 'ho contract, (for the bill admits the suit at law was brought upon that agreement,) before they elected to waive it, and then, retaining their verdict and entering judgment at law, apply to this Court to set the contract aside. This proceed- ing would be giving the plaintiffs a double advantage, and is unreasonable and inadmissible. Any decisive act of the party, with knowledge of his rights and of the fact, determines his election in the case of con- flicting and inconsistent remedies. If he take out a com- mission of bankruptcy, he cannot sue the bankrupt at law, for that would be again superseding the commission. (Ex parte Ward, 1 Atk. 153. EC parte Lewes, 1 Atk. 154.) So, charging a party in an execution at law after a commis- sion issued, is an election to take the remedy at law, and the party must abide by it. (Ex parte Warder, 3 Bro. 191. Ex parte Cator, 3 Bro. 216.) So, again, if a party seeks relief in equity by bill waiving a forfeiture at law, though he fail in obtaining relief, he cannot afterwards insist on the forfeiture at law. (1 Sch. fy Lef. 441.) There cannot be any doubt of the principle, that equity will not relieve a party fully apprized of his rights, and de- liberately confirming a former act. The doctrine has been 325 42'2 CASES IN CHANCERY. 1818 again and xgain declared. (3 P. Wms. 294. note E. &,c. v^^-^-^, 1 Atk. 344. 1 Ball and Beatty, 340.) And I consider the SHEPHARD going to trial in the action at law, and especially the entry MERRIL f judgment afterwards upon the verdict, as a decided con- firmation of the settlement in April, 1816. I shall, accordingly, dismiss this bill ; but from the opinion which I have formed upon the merits of the transaction, 1 am not willing to charge the plaintiffs with costs ; and I shall consequently, dismiss the bill without costs. Order accordingly. [*423] *SHEPHARD against P. AND J. MERRIL. After publication passed, and cause set down for hearing, the plaintiff will not be allowed to amend his bill, by adding new charges ; but may file a supplemental bill, on payment of the costs since publication. August 21 PETITION of plaintiff, stating the gravamen intended to be set forth in the original bill. That upon the hearing the chancellor denied relief to the plaintiff upon the bill as framed, but granted a rehearing. That the mistake in the agreement set forth in the bill was not stated, and praying for leave to amend the bill, so as to set forth the mistake, or to exhibit a supplemental bill for the purpose. Gold, for the plaintiff. Storrs, contra. THE CHANCELLOR. It is a settled rule of practice, that a bill defective in its charges cannot be amended after pub- lication, and cause set down, and especially after hearing, by adding new charges. Such defects can only be supplied by a supplemental bill. (Goodwin v. Goodwin, 3 Atk. 370. Jones v. Jones, 3 Atk. 111. Vide, also, 3 Atk. 133. Coop- er's Eq. PL 73. 333, 334. Newland's Pr. 82.) Leave tc file a supplemental bill in this case is granted, on paying tc the defendants their costs subsequent to the rule for passing publication, (a) 326 (a) Vide Beekman v. Waters, ante, p. 410 CASES IN CHANCERY. '424 1818. LANSING v. M'PHERSOH *LANSING against M'PHERSON and others. A. decree taken pro confesso on a bill for a foreclosure of a mortgage, after a sale, and a delay of more than six months, will not be set aside, unless under very special circumstances. But the sale was opened, the defendant, who was bound to make good any deficiency on the sale, offering 50 per cent, more than was bid, on condition of his depositing that advance with the register, in eight days, and paying the expenses of the former sale. VAN BUREN, attorney-general, for the defendant M., August 31. moved that the biddings mentioned in the petition be opened, and the premises sold again ; the defendant offering to give 50 per cent, more than was bid at the former sale. The petition stated, that Win. N. Capon, (defendant,) being indebted to petitioner, and Samuel M. Lockwood, (de- fendant,) in 1,890 dollars, executed a bond and mortgage to them ; that S. M. Lockwood assigned his interest therein to the petitioner, M'Pherson; that the bond and mortgage were exchanged by the petitioner for another mortgage to the plaintiff, and were duly assigned to plaintiff; that the plaintiff filed a bill to foreclose the mortgage, and the petitioner was made a party defendant ; that, understanding he was made a party for form only, he made no defence ; that the mortgaged premises were sold, and purchased by the plaintiff for 240 dol- lars ; that he understands that the plaintiff intends to apply for a decree against him for the residue of the mortgage money ; that the decree of sale was on the 22d of January, 1817; that the master's sale has not been confirmed, and no report thereof made, or deed executed, and the master is dead ; that the property was originally purchased by the petitioner and Lockwood for 700 dollars ; that Spencer Stafford, offered to pay the debt, on two years' credit, and it was refused ; lhat he did not know, until lately, that the plaintiff, by his bill, *prayed for a decree against him for the deficiency of the [ * 42? money, if any, to arise from the sale of the mortgaged prem- ises ; that he has a good and substantial defence on the merits, as he is advised, against such claim. Prayer, that the order for taking the bill pro confesso be vacated, so far as it respects the claim for the deficiency ; and that the petitioner be admitted to his defence, and that the biddings be opened, he offering to give 50 per cent, advance on what was bid. The attorney-general cited Sugden's Law of Vendors, 37, 38 ; and 1 Johns. Ch. Rep. 539. 327 425 CASES IN CHANCERY. 1818. Henry, contra, read an affidavit of the plaintiff, stating v^^-sx-^-x that the mortgage assigned to him by M'Phcrson was for LANSING another mortgage, and cash paid by the plaintiff for the dif M'PHERSO ference ', and the guaranty of M Pherson was endorsed on the mortgage assigned, by which he warranted the premises to be worth 1,311 dollars 45 cents, and engaged to be re- sponsible for the deficiency, if any, in case the mortgage was foreclosed ; that Stafford had it in his power, under an order of this Court, in November, 1815, to have paid the debt ; that the mortgaged premises were sold by a master, on the first of May, 1817, for 325 dollars, and bid for by the plaintiff; that m" 1 Pherson is in embarrassed circumstances, and the re- covery of the difference under the guaranty will be endangered by delay. THE CHANCELLOR. The defendant M' Pherson applies for two things ; 1 . that the decree taken pro confesso against him be set aside, on the ground of misapprehension, and that he has a good and substantial defence in respect to the claim against him for any deficiency which may arise on the sale of the mortgaged premises ; 2. that the sale be opened upon the terms he proposes. As to the first point, the delay has been too long to justify [ * 426 ] *the indulgence, without a very special case made. There must be strong ground, as Lord Eldon observed, in Knight v. Young, (2 f^esey and Bea. 184.) for opening a decree of this sort. The defendant ought to have stated the nature of his defence, for the plaintiff produces his very engagement to supply the deficiency endorsed upon the mortgage when he assigned it. This part of the motion must be denied. But I think the sale can be opened without any inconve- nience or injury in this case ; and justice would seem to re- quire it, especially in favor of a defendant who offers to give 50 per cent, in advance of the purchase money, and who is bound to supply the remainder of this debt unsatisfied by the sale. The plaintiff was here the purchaser, and the sale has not been confirmed, nor the deed executed. Sale opened, on condition that the defendant M' Pherson deposit with the register, within eight days, an advance of 50 per cent, on the sum of 325 dollars, which was bid by the plaintiff, and on his paying the plaintiff the expense he in cur red of the former sale. Decree accordingly. 328 CASES IN CHANCERY. *427 1818 *CooK AND KANE against MANCIUS AND VISSCHER. COOK MANCIUS \ plea in bar naming certain judgment creditors, not parties to the bill, without stating, affirmatively, that they ought to be made parties, is good ; but if the plea simply state facts from which it may be inferred, that other parties are necessary, without naming them, or averring that they are necessary parties, it is informal and bad. A plea should rest the defen :e on a single point; but though it should be multifarious, yet, if it d scloses facts which form a fatal objection to the bill, as the names of necessary parties, it will be suffered to stand, with liberty to the plaintiff to amend his bill, by adding the parties, on payment of the costs of the plea and subsequent proceedings, but not of the useless matter in the plea. THE bill stated, that the plaintiff C., having a judgment, September **. in trust for the plaintiff K., in the Supreme Court, against the defendant F., docketed the 9th of July, 1817, the sheriff, on an execution issued on that judgment, and other execu- tions on prior judgments, (but which had since been paid,) against V., sold, on the 24th of July, 1818, the right of y. to a piece of land in IVatervliet,of 140 acres, of which V. was seised, subject to a mortgage, to the defendant V., for 10 dollars ; that the defendant M. was present at the sale, and declared himself the owner, thereby preventing other persons from bidding. That, on the 22d of May, 1810, before the purchase of the premises by V., Garret G. Van Zandt, being seised thereof, executed a mortgage of the same to Henry Ostrom, to secure 2,785 dollars, which .mort- gage was foreclosed in this Court, and a decree for a sale made the 25th of May last. That, after the 9th of July, 1817, and before the sale, on the 24th of July last, the de- fendant V., in order to defraud the plaintiff K. of the amount of the said judgment in favor of the plaintiff C., sold the ' premises to the defendant M., without consideration ; and by deceitful representations to the solicitor and counsel of O., procured the decree for the sale of the premises, which directed, that, on *the sale, the surplus, after satisfying the [ * 428 1 mortgage debt, should be paid, over to the defendant V. That the premises were sold by a master, on the 25th of July last, under the decree, to the defendant M.,for 2,000 dollars, and the sum of 1,080 dollars was the balance, including costs due on the mortgage. That the defendant M. had notice of the judgment against V., and that the same was unsat- isfied ; and on the day of sale, the plaintiff C. offered to pay to the master the amount due on the mortgage, which was Defused. That the defendant M. did not pay the master the VOL. TIL 42 329 126 CASES IN CHANCERY. 1818. 2,000 dollars bid by him, but only 1,080 dollars due on the ^r^s-^-s mortgage, with costs ; and that M. acted as the agent of V^ COOK and to defeat the demand of the plaintiff against V., pur- MANCIUJ chased the land, under an agreement with V., that the residue of the 2,000 dollars, after deducting the mortgage, should be deducted from the consideration agreed to be paid for the premises, in case he should be obliged to pay that residue to the plaintiff; and that the defendant V. never has received from M. the residue of the purchase money. Prayer, that the defendants may pay into Court the 920 dollars, being the surplus of the purchase money, after deducting the 1,080 dollars due to )rom, or, on their refusal to do so, that they may be decreed to convey to the plaintiff C. the mortgaged premises, and pay the costs, &c. The defendants put in separate pleas in bar, stating, that before the bill of the plaintiffs was filed, to wit, on the 25th of May, 1818, in the suit of //. Osfrow v. CremV G. Van Zandt and Wife, Lyman Standford, and the defendant V., a decree was enter'ed for the sale of the mortgaged premises by a master, on six weeks' notice, and that out of the pro- ceeds the master pay the mortgage debt and costs ; and " that the residue of the moneys, if any, be paid to the de- fendant V. ; " that, in pursuance of this decree, the master sold the premises on the 21st of July, 1818, at auction, to [ * 429 ] the defendant M., for 2,000 dollars ; *and on the 22d of July, executed a deed, and reported to this Court the pro- ceeding and sale, and that the amount of the debt and costs on the mortgage had been received from the purchaser to 1,080 dollars, and paid to the plaintiff in that suit, and that the residue of the purchase moneys had been paid over by him to the defendant V. That in May term, 1817, C. D. Cooper recovered a judgment in the Supreme Court against the defendant F"., for 138 dollars 51 cents; that in January term, 1816, the corporation of the city of Albany recovered a judgment against V. for 662 dollars 26 cents, docketed the 2d of November, 1816. That in May term, 1817, the said corporation recovered a judgment against V. for 233 dollars and 27 cents ; and that John B. Visscher recovered a judgment against the defend- ant V. for 305 dollars and 60 cents, docketed 10th of May, 1817. And the defendants pleaded and averred, that the said judgments are in force, and wholly due and unpaid, and pleaded the same in bar. The pleas were sworn to. The question arose on the validity of these pleas fV. Hale, for plaintiffs. 330 CASES IN CHANCERY. 429 J. V. N. Yates, for the defendants. ISIS THE CHANCELLOR. The substance of the plea is, tha COOK the bill does not contain proper parties, and it discloses facts ... . . r , r r ,: . 1-1 MANCIUS. snowing that there are judgment creditors interested in the surplus moneys, and who have a prior claim to that of the plaintiffs. The plea only states the facts from which we are to infer that further parties are necessary, and then, instead of saying affirmatively, that additional parties are necessary, the defendants say they are not bound farther to answer, and plead those facts in bar. Such a plea was held to be in- formal, and leave was given to amend it, in Merreivether v. Mcllish. (13 ^"es. 435.) *But in that case the parties were [ * 430 not named at all. Here the prior judgment creditors are named, and the objection would seem, then, to be confined to the mere want of form in not stating, in so many words, that those judgment creditors are necessary parties. This I do not think material, and that branch of the plea is, there- fore, good. But the preceding part of the plea sets forth the decretal order for the sale of the mortgaged premises, and the proceedings by the master. This is distinct matter, and contrary to the rule of pleading, which will not allow multifarious matter in one plea, but requires that the defence in a plea should rest on a single point. If the object of this was to show that Ottrom, the plaintiff in the suit upon the mortgage, ought also to have been a party, there was no necessity for stating all the proceedings by the master. The fact might have been briefly stated, without encumbering the plea with such a detail of matter, and which must have been inserted for other purposes than merely to show that Ostrom ought also to have been a party. Nor was it necessary that Ostrom should have been a party to this suit, for he cannot be affected in interest, since the object of the suit is only to procure the surplus moneys arising upon the sale, and with which Ostrom can have no concern. He is not charged with any act whatever that is put forward as a ground for relief. But though the plea be censurable for the multifariousness of its matter, it nevertheless discloses a fatal objection to the bill, as it now stands, and I am not inclined to overrule it altogether. The judgment creditors mentioned in the plea must be made parties ; for their claim to the surplus may be better than that of the plaintiffs, and the plaintiffs cannot obtain a decree for it, until they are heard. I shall, there- fore, let the cause stand over, with liberty to the plaintiffs to amend their bill by making those creditors parties ; and it must be upon the payment of the costs of the pleas and the subsequent proceedings ; but in *taxing the costs, the de- [ * 431 ] 331 131 CASES IN CHANCERY. 1818. fendants are not to be allowed for any part of those pleas ^^~^s~^/ that relate to the proceedings in chancery, or the proceedings BRADFORD by and before the master. The defendants are to be entitled to tne usua ^ ^ me to answer the bill when amended. Order accordingly. BRADFORD against KIMBERLY AND BRACE. One joint partner is not entitled, as against the others, to a compensation for his greater or more valuable services, in regard to the common con- cern, unless there be a special agreement to that effect. But, where the several joint owners of a cargo appoint one of the part owners their agent, to receive and sell the cargo, and distribute the proceeds, he is entitled, under such special agency, to a commission, or compensation, for his services, as a factor, or agent, in the same manner as a stranger ; and as such factor, or agent, he may retain the goods, or their proceeds, as security, not only for his advances, dis- bursements, or responsibilities, in regard to the particular property, but for the balance of his general account. June 18 and IN August, 1813, the defendants, Adijah Weston, Benjamin 9,andSep<.28. jjMENOMY and the trustees to sell the lands, and deduct out of sales, - In the modern case of Fell v. Brown, (2 Bro. 276.) there HAIKS was a bill by a second against a first mortgagse to redeem ; BEACH but as the heir of the mortgagor, who was dead, was absent, and the personal representatives not before the Court, Lord Thurlow ruled, that there was a want of parties, and that the mortgagor, or his heir, must be a party, because he is inter- ested in taking the account, and that the natural decree was, that the second mortgagee redeem the first mortgagee, and that the mortgagor redeem him, or stand foreclosed. The , same rule was afterwards laid down in Palk v. Clinton, (12 Vescy, 48. 59.) and the master of the rolls in that case avoided the general question, whether it was necessary to make all encumbrancers parties, and only decided that you could not agitate the question of redemption as between two mortgagees, without making the mortgagor a party. In the case of The Bishop of Winchester v. Beavor, (3 Vesey, 314.) the subject was fully discussed. That was a bill by the first mortgagee against the mortgagor, and the second mortgagee, to foreclose, and the answer of the mortgagor stated a. judg- ment against him, between the first and second mortgages. The second mortgagee objected at the hearing, that the judg- ment creditor was not a party, and it was urged, on his part, that a judgment creditor had aright to come to foreclose, as a mortgagee ; that in all bills of this kind there was an inter- rogatory, whether there were any, and what encumbrances, and if the answer stated any, the practice was to make them parties ; that all judgment creditors and mortgagees must be parties, because interested in the account to be taken, but that judgments confessed by the mortgagor pendente lite would not be regarded. The master of the rolls admitted, that a judgment confessed after a bill filed, would not create any equity, and observed, that the general course of the Court, *and the practice, almost without exception, had been to [ * 464 make all encumbrancers parties, for they had a right to re- deem ; and the practice was founded on the gross injustice that would otherwise ensue in allowing the mortgagor to re- deem his equity, when a subsequent encumbrancer was en- titled to it. He ordered the cause to stand over until the judgment creditor was made a party, but still felt unwilling to lay down the rule absolutely, that the Court was bound to insist upon all encumbrancers being parties. One of the points in this case, on which Lord Alvanley gave an opinion, was again considered and established in The Bishop of Winchester v. Paine (11 Vesey, 197, 198.) where it was held not to be necessary, on a bill to foreclose, 357 464 CASES IN CHANCERY. 1818. to ma k e encumbrancers, who became such pendente lite, parties. But this very case strongly implies, that all othei encumbrancers, not within that exception, must be parties. ^ ne necess ity f making the subsequent encumbrancers parties, or holding their rights unimpaired, appears to be much stronger, and is indispensable to justice, in cases of decrees for sales, according to our practice ; for otherwise the mortgagor would take the surplus money, or the cash value of the equity of redemption, and defeat entirely the lien of the subsequent creditor. But their rights cannot be % destroyed in this way, and the purchaser will take only a title as against the parties to the suit, and he cannot set it up against the subsisting equity of those encumbrancers who are not parties. This is the necessary doctrine resulting from the cases which have been mentioned ; and that of Sherman v. Cox (3 Ch. Rep. 46.) is still more in point. R. mortgaged his estate to S., and then to P., and then to the plaintiff, and then to B., who buys in the first two mortgages. The plain- tiff brings his bill against the mortgagor and B., and no pro- ceedings were had, but B. had notice of the plaintiff's title. Then, B. files his bill against the mortgagor, who was in pos- [ * 435 ] session. He *had a decree and an account, and time to set the mortgagor to redeem or be barred. The time expired, and the mortgagor was foreclosed of his equity, and B. then sold his right to the defendant, and the plaintiff, who had not been a party to B.'s bill of foreclosure, brings his bill to re- deem, and the defendant pleads his purchase of the equity of redemption, which had been barred. The question was, whether the plaintiff, who was no party to the bill of fore- closure, ought to be let in to redeem ; and Lord Nottingham declared it was a question of election between one inconve- nience and another. He admitted it was "extremely mis- chievous" to the mortgagee to make all persons parties who had interest, but that he would be finally consoled in having his principal, interest, and costs. But he said, if the plaintiff should not be relieved in that case, " it would be an irrepara- ble loss and ruin, and he thought trouble and pains less pre- judicial than ruin and total loss." So he overruled the plea, but said that the account stated should stand, unless collusion was shown. This last point, as to the account not being opened, had been so ruled before, in Needier v. Deeble, (1 Ch. Cas. 299.) and the general doctrine established in this case appears to me to be well founded, and to have been handed down unimpaired to this day. In a recent case before the House of Lords, ( Gore v. Stacpoole, 1 Doiv. 31.) Lord Eldon said, that, in order to make a foreclosure valid against all claimants, he who had 358 CASES IN CHANCERY. 465 1818 HAIHES [ * 466 J the first estate of inheritance must be brought before the Court, and that the intermediate remainder-men ought to be brought before the Court, to give them an opportunity of paying off the mortgage. The case of Mondey v. Mondey (1 Vesty and Bca. 223.) shows the modern practice on tne point. That was a bill against the infant heir of the mort- gagor, and against prior mortgagees, praying that the plain- tiff might be permitted to redeem the prior mortgages, and the heir decreed to redeem the whole, and that such of *the defendants as were subsequent mortgagees, might redeem the plaintiff, or that the property be sold, and the money applied to discharge the encumbrances according to priority, and the surplus, if any, secured to the infant heir. The usual refer- ence was made to take an account of the moneys due to the several encumbrancers, and to ascertain and report their sev- eral priorities, with the usual directions for the subsequent encumbrancers to redeem the prior, in the usual course, &c. After such a long and uniform practice of the Court, making every encumbrancer existing at the filing of the bill a party, and seeing it is founded on such weighty reasons of justice, there can be no hesitation as to the right of the plaintiffs in the present case to redeem. A reference must accordingly be had, to ascertain the amount due to the plaintiffs upon their bond and mortgage ; and the amount of the debt ascer- tained and declared in the decree in the former suit, and the value of the permanent and useful repairs made by the defend- ant Field on the mortgaged premises since his purchase, and prior to his plea, and that the master report, &.c. Order accordingly. [In the case of M'Kinst ry v. Mervin and others, the plain- Apriormon tiff owned a bond and mortgage, registered the 13th of May, ^ ee '^ vh " u h ( ] as i 1815, and the defendant owned a bond and mortgage upon men't against the same lands, registered the 14th of March, 1816, and the ^bs^SeWn plaintiff owned a judgment against the mortgagor, docketed date to a scc- llth of November, 1816, and under which he had sold, and j f&^ become the purchaser of the mortgagor's equity of redemp- sale of the tion. Under these circumstances, the plaintiff filed his bill ST'jSLSjj to compel the defendant, by a day certain, to discharge his purchase! the mortgage and judgment debts, or *be foreclosed. The de- [*467 ] fendant, in his answer, offered to discharge the mortgage equity of re- debt of the plaintiff, and the costs, but this was not accepted. notTon^WH The case being submitted, upon the bill and answer, the filed a s ainst the CHANCELLOR (September 10th, 1818) held, that the lands gee^on^dfhe second mortga- gee to pay off the judgment as well as the first mortgage, or be foreclosed. The encumbrances are tc be paid off according to the order of time in which the respective liens attached. 359 467 CASES IN CHANCERY. 1818. bound by the encumbrances in the pleadings mentioned, N^^-N, >w^ were chargeable, (1.) for the mortgage debt of the plaintiff HAINES (2.) for the mortgage debt of the defendant, (3.) for the BEACH judgment debt of the plaintiff, and that the debts were to be paid according to the order of time in which the respective liens attached, and that the plaintiff was not entitled to re- quire of the junior mortgagee to pay the judgment debt before he could redeem. It was, accordingly, decreed, that it be referred to a master, to compute the amount of principal and interest due on the first mortgage, and that the defendant pay the same, with interest and costs, in six months from the confirmation of the report, or be foreclosed. The six months was the usual allowance in such cases of bills for a strict foreclosure. (1 Haddock's Ch. Rep. 287. 17 Vesey, 382. 407. Coopers Eq. Rep. 28. 2 De.ausseur's S. C, Rep. 144.) [See 7 Paige 511.] 360 CASES IN CHANCERY 461 1818. KlMBERLT KIMBERLY against SELLS and others. SE!'LS [Explained, 9 Paige 626.] Inhere there is a general demurrer to the whole bill, filed for discovery and relief, and the plaintiff is entitled to an answer to any part of the bill, the demurrer will be overruled. 1 bonajide purchaser, in possession of an estate, is entitled to a discovery of the grounds on which his title is sought to be impeached by the defendants, who had revived a judgment against the person from whom the plaintiff derived his title, and which he alleged had been satisfied, and had issued execution, under which the sheriff had levied on the estate, and advertised it for sale. BILL stated, that John Bedient and Walter Hubbel, who June zy ana were partners in trade, owned lots 38, 39, and 42, *in Gold Sep street, in the city of New-York. That W. H. died on the I- 12th of September, 1803, intestate, seised of a moiety of these lots, leaving a widow and two sons, (defendants.) That, under proceedings in partition in the Supreme Court, under the act relative to partition, the lots were sold at auction, on the 30th of August, 1804, and John Bedient became the purchaser. That J. B., who sued for the partition, .as tenant in common of a moiety, stated, in his petition, that the widow had her dower, and each of the sons one fourth of the lots. The sale was made by commissioners under the order of the Court, and was confirmed by the Court. That the widow, on the 3d of November, 1804, released her dower. That /. B., being so seised of the entire fee, on the 9th of December, 1805, executed a mortgage to Ezekiel Robins, of lot No. 38, to secure the payment of 2,500 dollars ; and on the 13th of March, 1806, executed a mortgage to Stephen B. Munn, of lots 39 and 42, to secure the payment of 4,000 dollars ; and, afterwards, on the 8th of April, 1807, sold the three lots at auction, subject to the mortgages, to Ezekiel Robins, for 7,793 dollars. That, on the 20th of June, 1807, Ezekiel Robins executed a mortgage on lots 39 and 42, to Rem Martense, to secure the payment of 2,500 dollars, and on the 9th of December, 1807, sold and conveyed all the three lots, for 6,300 dollars, to Timothy Savage, subject to the mort rage to R. Martense; that Savage and his wife, on the 18th of April, 1808, mortgaged part of the premises to Stephen B. Mann and three other persons, to secure the sum of 3,874 dollars and 56 cents ; and, on the 9th of September, 1811, sold lot No. 42 to Wm. Knapp,\vho agreed to pay half the money due on the mortgage from Robins to Martense. That, on the 7th of March, 1815, the plaintiff purchased of Vox. III. 46 361 468 CASES IN CHANCERY. 1818. *-^~+* KlMBERLY V. SELLS. [ * 469 ] [*470] Savage lots 38 and 39, for 7,000 dollars, subject to the two mortgages, and the plaintiff paid to Munn, who had become solely interested in the mortgage to him and others, 4,559 dollars and 93 cents, and took an assignment *of that mort- gage; and that, on the 19th of June, 1815, John Bedient and his wife mortgaged lot 42 to the plaintiff for 1,000 dollars, and the mortgage was on the same day duly registered. That the plaintiff,' after the purchase, took possession of lots 38 and 39, and remained possessed of his mortgage on lot 42. The bill further stated, that John Sells, after the sale of the three lots to Robins, as above mentioned, recovered two judgments against John Bcdient for partnership debts ; and not obtaining satisfaction of John Bedient, he filed a bill against the widow and children of Hubbel, and Bedient, and the administrators of Hubbel, to have his debt satisfied out of that estate, and the same was satisfied out of the estate of Hubbel; and an order of this Court was obtained, upon petition of the representatives of Hubbel, directing the two judgments to be assigned to them. That these judgments being revived by scire facias, in the name of Sells, adminis- trator of Hubbel, but under direction of the widow and sons of Hubbel, and Bedient having been discharged under the insolvent act, these representatives and his assignees, (defend- ants,) combining to injure the plaintiff, and impeach his title to the said lots, have caused writs of fieri facias to be issued at law, in the name of Sells, on the judgments so revived, against the lands whereof .7. Bedient was seised the 9th of May, and the 24th of October, 1807, by virtue of which ex- ecutions, the sheriff had levied on lots 39 and 42, and adver- tised them for sale ; the defendants pretending that there had been paid out of the estate of W. Hubbel more than its just proportion of the partnership debts, and that the whole of what had been so paid ought to be refunded, and that the lands of which Bedient was seised at the time of the judg- ments, are, notwithstanding his assignment and* discharge under the insolvent act, liable to contribute a moiety, if not the whole of the judgments in favor of Sells ; that Bedient was seised of the premises at the time of the judgments, and of his ^discharge ; and that the sales to Robins by Bcdient were fraudulent, and the mortgages to Robins and Munn also fraudulent, or were kept on foot by fraud, &c. The plain- tiff insisted that the judgments had been satisfied, and ought to be discharged, and not to be made use of by the repre- sentatives of Hubbel. That, to entitle those representatives to any recourse upon the judgments, they ought, by an ac- count to be taken in the premises, to establish a balance to be due from Bedient to Hubbel; and that, if any such balance 362 CASES IN CHANCERY. 470 should be proved, they ought to look to Bedient for contri- bution of his proportion, and come in with his creditors for a ratable proportion. The bill charged, that the sale to Robins was bona fide, and for a valuable consideration, and that the mortgages were bona fide ; but that if they were otherwise, the plaintiff had no knowledge thereof, and was a bona fide purchaser, without any notice, belief, or suspicion of fraud ; and that his title cannot, therefore, be impeached. That, although the plaintiff is advised that his title cannot be defeated by the threatened sale under the judgments, yet it may involve him in lawsuits, and greatly impede his use and disposition of the property. That, being a bona fide purchaser without notice, he is entitled to a discovery of the grounds on which his title is sought to be impeached, before such sale takes place, and has a right to come into this Court to have his title quieted and established. Prayer, accord ingly, for a discovery by the representatives of W. H., for general relief, and an injunction. The injunction was issued the 29th of July, 1817. There was a general demurrer to the bill, by the repre- sentatives of Hubbel. S. Jones, jun., for the plaintiff. Burr, for the defendants. *THE CHANCELLOR. The demurrer in this case is general, and goes to the whole bill. If )he plaintiff be entitled, either to the discovery or the relief, then the demurrer, by going to the whole bill, must be overruled, for if void in part, it is void in toto. The doctrine on this point was settled in the Court of Errors, in 1798 and 1799. (Le Roy v. Veeder, 1 Johns. Cos. 423. Laight v. Morgan, 1 Johns. Cas. 429.) The plaintiff claims and possesses certain houses and lots, as a bona fide purchaser and mortgagee for a valuable con- sideration, without notice or suspicion of any defect of title, and he seeks a discovery of the grounds upon which some of the defendants are proceeding to sell that property, by execution at law against John Bedient. This claim to a dis- covery rests on the fact of his being such a purchaser, in possession, under a title deduced from Bedient prior to the judgments upon which the defendants are proceeding, and that Bedient was since regularly discharged under the insol- vent act, and that the sale intended would expose him to ex- pense, and injure the character of his title. There is much equity in the call upon the defendants to 363 1818. Juste 29 September 28 [*471 471 CASES IN CHANCERY. 1318. disclose the grounds of their claim ; for, if they are permitted v.^-x,--^^/ to sell while that is doubtful and unknown, who would buy '( KiMBERLr Probably, no person would be induced to bid, but on mere SELLS speculation, or for a nominal sum. If the plaintiff was duly apprized of the claim, and on what it rested, he might be induced to pay the demand under the judgments, in order to save himself from total loss. But neither he, nor any other person, can exercise their judgments with any discretion on the subject, so long as this new claim of the defendants is not known or understood. The discovery seems to be ne- cessary to render the sale beneficial to the parties concerned, and to prevent injurious speculations upon the property. The plaintiff is admitted, by the demurrer, to be an innocent [ * 472 ] purchaser, *for a valuable consideration, without notice ; and he has pretensions to the discovery which Bedient, or any party to the original transaction, cannot advance. The question, at present, is not on the trial of title. It is only for a discovery of the nature and grounds of that title ; and the discovery may, perhaps, satisfy the plaintiff' of its good- ness and validity, or it may present a case of legal title to be tried and established at law, before relief can be obtained here. This case does not appear to come within those decisions which have refused such a discovery. The plaintiff is not a mere stranger, seeking, by a fishing bill, the discovery of another's title, nor a rival claimant standing only on equal ground. The cases of Adderley v. Sparrow, (Hil. 1779. Redesdale's Tr. 154.) and of Buden v. Dove, (2 Pesey, 445.) are very briefly reported, without any detail of facts ; and they have, probably, no application to the special circumstances of this case, in which a particular equitable claim to discovery is shown from the character of the plaintiff, as a bonafide purchaser and possessor, and the proceeding of the defend- ants in attempting to sell the land of the plaintiff as the land of another. The case of Metcalf v. Harvey, (1 Vesey, 248.) fully au- thorizes the present bill. In that case, the bill was not only that there might be an interpleader, but also a discovery of the defendant's title to the possession of an estate ; and it contained a prayer for an injunction to stay proceedings in ejectment on the part of the defendant. As to the prayer for the injunction, the chancellor observed, that " The question came to this, whether any person in possession of an estate as tenant, or otherwise, may not bring a bill to discover the title of a person bringing an ejectment against him, to have it set out and seen ; and he was of opinion he might, to enable him to make a defence in ejectment." In that case, the de- fendant demurred to the whole bill for discovery as well as 364 CASES IN CHANCERY. *17 relief, *e.nd as the plaintiff was held to be entitled to the dis- ISlS. oovery, the demurrer was overruled. v^^v ^, It is not necessary, at present, that we should go the whole KIMBERLT length of this decision ; but it warrants, and more than war- rants, the bill in this case. So, in a much later case, ( Weller v. Smeaton, 1 Cox, 102.) the bill stated the plaintiff to be lessee of a mill, and that the defendant had erected works on the water above, which obstructed the mill, and the prayer was, that the plaintiff might be quieted by injunction. There was a demurrer to the relief, but the case states that " a full discovery was obtained." Without, therefore, giving any opinion, at present, as to the relief, I conclude that the plaintiff is entitled to an answer to the bill, and the demurrer is, consequently, overruled. Demurrer overruled. 365 473 CASES IN CHANCERY. 1818. TRIPLER OLCOTT. TRIPLER and others against OLCOTT AND LORD. Where F. made a bill of sale of a ship, then on her voyage, and of freight to be earned, to L., which was absolute on the face of it, and L. sent to O., the master of the ship, a copy of the bill of sale, with a power of attorney, and instructions to him as to the disposition of the property, and O., considering L. as the owner from that time, acted as his agent, and afterwards accounted to him for the proceeds of the freight, &c Held, that O. was not accountable to F. as having a resulting trust, though some of the letters from L. to O. incidentally mentioned that the bill of sale was intended to secure C. certain advances and responsibilities ; there being no fraud or collusion between L. and O. BILL staled that Tripler and Craig, plaintiffs, were part- i* . m s in trade in the city of New- York ; and that the plaintiff Fanning was owner of the ship Zephyr, of the value of 28,000 dollars, then on a voyage from New-York to Nantz, with a freight to be earned, amounting to 31,000 ^dollars, and being indebted to the defendant Lord, on three promis- sory notes, amounting to 2,569 dollars, in order to secure the payment of the same, on the 22d of December, 1812, by deed, assigned the said ship and freight to the defendant Lord, on the express agreement, that after L. was paid his debt and interest, he should hold the ship and surplus freight to the use of F., and subject to his order. That after the arrival of the ship at L* Orient, and the freight had been earned, F., being indebted to the plaintiffs Tripler and Craig, in the sum of 10,000 dollars, on the 10th of September, 1813, as- signed to them the ship or proceeds thereof, and the surplus freight, after paying L., &c. That, relying on this assign- ment, T. &f C. had assumed to pay out of the proceeds, remaining over and above their debt, a debt due from F. to the City Bank, amounting to 6,000 dollars. That, soon after this last assignment, to wit, on the 18th of December, 1813, F. executed another assignment to T. &/ C., reciting the former assignment of the 10th of September, the objects of which had been executed, and that T. &/ C. had been paid the 10,000 dollars by F., and that they had since lent F. other sums of money ; to secure the payment of which, and of other sums to be lent and advanced, F. assigned the said ship and the homeward freight, and all the interest of F. in the same, in whose hands soever the same might be. This as- signment was absolute, with the usual power of attorney. The defendant O. was master of the ship during the voyage, and continued to be master, until she was captured on hei 366 CASES IN CHANCERY. 474 homeward voyage. That, at the time of the last assignment, 1818. T. fy C. had paid F. 1,200 dollars, and had since paid him -_^~s/~>^y 1,400 dollars, and F. now owed T. fy C. 2,800 dollars, ex- TRIPLER elusive of the sum due the City Sank- That the defendant QLCOTT //., after the ship arrived in France, applied to F*. for direc- tions respecting the disposal of the ship and freight ; and jp. instructed L. not to risk any part of them, or of the proceeds, upon the homeward voyage, unless well insured ; and that, on the 9th of * August, 1813, F. gave directions to L. to [*475] vrite to his agents in France to that effect, and L. afterwards said that he had given such orders. That the outward freight was paid to O., as master, and agent for L. That O. was employed as master, by F., as sole owner, and at the time he received the homeward freight, he knew that F. was interested therein. That Z/. was informed of the two last assignments to T. fy C., and of their advances and responsibilities for F. ; but had given such orders as induced O. to act as if T. ^ C. had no interest in the ship and freight. That O. remitted 14,000 dollars of the outward and homeward freight to L., in bills of exchange which are retained as due to L. and O. That O. sailed from France to New- York, with freight and other property of the plaintiffs, and embarked part of the out- ward freight in- another ship, without insurance ; and in con- sequence of capture, the security of the plaintiffs therein has been lost. The plaintiffs charged, that there is due to them, out of the proceeds of ship and freight, under the last assignment, 40,000 dollars. That O. received of the homeward freight 3,320 dollars ; that if the freight out and home had been insured, as it might have been, in France, the plaintiffs would have been entitled to 25,000 dollars ; and if the ship had also been insured, to 40,000 dollars. That the defendants have left the plaintiff F. charged with the payment of a premium of insurance on the outward voyage, of 11,000 dollars, the greater part of which he had paid. That the defendant O. threatened to depart out of the state. Prayer, that the defendant O. may be compelled to give security not to depart out of the state, and that the defendants may account, &c. The plaintiff made affidavit, that there would be found due to the plaintiffs, from the defendants, on a set- tlement of accounts, 20,000 dollars, in relation to the freight, &c. A ne exeat was granted the 12th of December, 1814, marked 10,000 dollars. *Olcott, in his answer, admitted that jP. was owner of the [ * 476 ] ship, &c. That he, O., took command of her on the 12th of November, 1812, and was employed by F. as owner; that he acted as master under F. until after his arrival in France. 367 476 CASES IN CHANCERY. 1818. That, on the 25th of February, 1813, he received a le'tt. x - '-v-^_^ from L., dated the 23d of December, 1812, enclosing a copy ol TRIPLER a bill of sale of the ship, freight, and proceeds, to L. ; and, OLCOTT also, a power of attorney from L. to act for him. That, from that time, he considered L. as the owner, and acted as agent of L. in respect to the ship, freight, and proceeds, and in con- formity to the letters and instructions of L. That the pro- ceeds of the outward freight were received by him as the agent of L. And he insisted, that he was accountable only to L. for his agency. That he would not have accepted the agency, distinct from his office as master of the ship, had he supposed that either of the plaintiffs, and not the defendant L., was interested in the property. That, he was first in- formed of the two assignments to T. ^- C. on his arrival at New-York, in October, 1814. That, by his agreement with F. } he acted only as master ; and the further interest and concern of jP. were intrusted by him to a supercargo, V. Sheldon, who acted as supercargo arid agent of F. until O. received the letters of L., with the bill of sale and power of attorney, with instructions as to the proceeds of freight, &c. The defendant O. further stated, in his answer, the contents of the letters of L., of the 23d and 29th of December, 1812, and 20th of January, 1813, and of his instructions, and of all the transactions by him as agent. That, in the letter of the 29th of December, 1812, L. stated that the bill of sale was on account of the failure of Fanning and Coles, and for the purpose of paying custom-house bonds, and to save friends. That, in October, 1813, he received a letter from .L., dated the 16th of August. 1813, saying, that he took the ship and freight as security for about 6,000 dollars, and to [ * 477 ] cover a demand of Carey *of about 1500 dollars, and feared he should lose all, unless the property was insured in France. That, in October, 1814, the defendant and L. rendered to each other their respective accounts of all their transactions and concerns, on which there was a balance due to the de- fendant O. of 1,028 dollars and 86 cents. Evidence was taken in the cause, which was brought to a hearing, as to the defendant O., in June last. June 22 and 23. Riggs and Baldwin, for the plaintiffs. T. A. Emmet and Wells, for the defendants. September 28. THE CHANCELLOR. This case was brought to a hearing on the part of the defendant Olcott, and we are only to discuss the case as it regards him. Two of the plaintiffs (Tripler and Craig) have not shown 368 CASES IN CHANCERY. 477 any right or title whatever to an account, for they have not 1818. proved the assignment charged in the bill to have been made v^^-v^-^. by Fanning to them on the 18th of December, 1813. This TRIPLE* assignment is the only foundation of their claim, and it is not OLCOTT admitted by the answer. We must recur to the resulting trust of Fanning, as the only existing right shown on the part of the plaintiffs. The bill of sale from Fanning to Lord was absolute upon its face, and no resulting trust appears. Nor is there proof of the express agreement charged in the bill. The evidence, that the bill of sale was intended to be qualified, and not absolute, appears from the two letters of Lord to Olcott, of the 29th of December. 1812, and the 16th of August, 1813. In the one, he says, that the bill of sale arose from the failure of Fanning and others, and was for the purpose of paying custom-house bonds, and to save friends ; and in the other he states, that he took the ship and freight as security for about 6,000 dollars, and to cover a demand of one Carey for 1,500 dollars. These were ^representations entirely contrary [ * 478 ] to the statement in the bill of the agreement between Fanning and Lord, made on the delivery of the bill of sale. Nor do the two accounts given in the letters correspond with each other, and they were mentioned to Olcott rather incidentally, and without any full, precise, and satisfactory explanation of the trust. They were not intended to form any rule or guide to Olcott's conduct, and he could only look to Lord as the owner. The authentic evidence which he had of any right or title in the property, was the bill of sale and the letter of attorney ; and he could not, and did not, recognize any other title, interest, or authority. A resulting trust, mentioned in this incidental and obscure manner, and es- pecially when attended with the clear title and positive acts and instructions of Lord as owner, did not, probably, attract any attention from Olcott; and he says, in his answer, that he considered Lord as the sole owner, and as having the exclusive interest, and that he would not have accepted of any agency for any other person, distinct from that of master of the ship. On his return to the United States, in October, 1814, he duly accounts to and with Lord ; and the question is, whether he is bound to account also to Fanning. It does not appear to me, that Olcott could, with safety or propriety, have dealt with any other person than Lord. He had no business or concern with the dealings between Lord and Fanning, and the loose hints communicated to him by Lord were of no use. It would be equally dangerous and inconvenient, in the business and affairs of the world, to VOL III 47 369 478 CASES IN CHANCERY. 1818. deny, that Olcott could not definitively and safely account Vs^-s^^x with Lord, under the circumstances of this case. If there TRIPLER had been fraud and collusion charged and proved between OLCOTT. n * m an( ^ Lord, in the settlement, to the prejudice of the known rights of others, it would have presented a very dif- ferent question. But no such allegation or proof exists; [ * 479 ] Fanning must look to Lord, and cannot look beyond *him, for an account of the management and proceeds of the property Assigned to him in trust. It is stated to have been held in Pollard v. Doivnes, (2 Ch. Cas. 121.) that where a trustee made a letter of attorney to !?. to manage and receive the rents and profits of land, and *S". afterwards accounted to the trustee for his agency, he was, after the death of the trustee, and on a bill by the cestuy que trust, directed to account to him. That case is so destitute of all facts and circumstances requisite to a clear understanding of the principle and the application, that it can scarcely be regarded as an authority. It may be, that there was a collusion between the trustee and the agent, or that the agent had notice from the principal not to account with the trustee, or that the trust had expired at the time. It is impossible to be maintained, that if an agent duly and fairly accounts with his immediate and au- thorized principal, that he is bound, in all cases, to account over again to the person standing behind his immediate prin- cipal. This would be a doctrine not to be endured ; there must have been something in the case cited which does not now appear, and which gave it a special direction. Lord Eldon, in Beaumont v. Boultbee, (7 Vesey, 605. 610. 617.) laid down this rule, that an account settled between an under and an upper agent, without vouchers, and upon mere con- fidence, was not to be considered as settled against the principal, without allowing him the liberty to surcharge and falsify those accounts. But, in that case, it appeared that the under steward (as he was termed) was employed both by the upper steward and the principal, and the liberty given to the principal went no farther than to surcharge and falsify ; and that was founded on the extraordinary and unusual mode of accounting which had been adopted in that case. Under such checks and limitations, there can be no doubt that the party ought to account again to the person who has the ultimate interest. But when no special circumstances [ * 480 ] *appear, and there is no fraud, then I apprehend the gen- eral rule to be otherwise, and that it was truly declared in Clavering's case. (Prec. in Ch. 535.) The plaintiff in that case was entitled to several collieries of value, and his guardians or trustees, during his minority, 370 CASES IN CHANCERY. 4SO had appointed the defendant an agent to manage the same, 1S18. with a salary which they had increased as they saw occasion, x^^-v^-^,^ He passed his accounts regularly with the trustees or guar- TRIPLER dians, every half year; and they, from time to time, passed OI/OTT and allowed those accounts. The plaintiff, being of age, filed his bill, not only against the trustees or guardians, but the agent, to have a general account. The agent pleaded the accounts themselves, and the plea was held good, for he was but a servant to the trustees ; and as they had authority to employ him, they had the same to discharge him and allow his accounts, and he had nothing at all to do with the plain- tiff ; that if it were otherwise, none would ever be concerned in an infant's affairs, and the plaintiff would suffer no sort of mischief by it ; for he was at full liberty to go through the whole account against the guardians or trustees, and they were only and immediately responsible to him, and would be so for 'the embezzlements of the servants they employed. In the cases referred to, the character of the trustee, and the relationship between him and the principal, were, no doubt, distinctly known and declared. But in the present case, Fanning had clothed Lord with the absolute legal title, and held him out to the world, and suffered him to deal with others, as the real and absolute owner. Upon every just and safe principle, the settlement between Olcott and Lord ought to be absolute ; it ought not to be opened by Fanning; nor the defendant Olcott called on to account de novo with him, except upon the ground of fraud and collusion ; and that is not the ground taken in this case. *I am, accordingly, of opinion, that the bill, as to the de- [ *481 ] fendant Olcott, be dismissed, with costs. Bill dismissed, accordingly. 371 481 CASES IN CHANCERY. 1818. READE LIVINGSTON. READE, Administrator of READE, against LIVINGSTON and others. [Affirmed. 4 Johns. Ch. 450. Applied, 5 Cow. 67; 10 W. Va. 98. Criticised. 8 Cow. 406; 8 Edw. 61, 62; 2 Paige 58. Overruled, 24 N. Y. 623. See 2 Edw. 201; 8 Paige 164; 11 Id. 594.] A settlement after marriage, in pursuance of a parol agreement entered into before marriage, is not valid ; aliter, if made in pursuance of a written agreement prior to the marriage. Though a settlement after marriage recites a parol agreement entered into before marriage, it seems, that it is not, therefore, valid against creditors. A voluntary settlement, after marriage, by a person indebted at the time, is fraudulent and void against all such antecedent creditors ; and that without regard to the amount of the existing debts, or the extent of the property settled, or the circumstances of the party. But, with regard to debts, arising subsequent to the settlement, it seems, that the presumption of fraud, arising in law from the party being indebted at the time, may be repelled by circumstances ; as, that the antecedent debts were secured by mortgage, or were provided for in the settlement. And if the presumption of fraud is not so repelled, it seems, that subse- quent creditors may impeach the settlement, by showing antecedent debts sufficient in amount to afford, reasonable evidence of a fraudu- lent intent ; for, as on the one hand, showing an antecedent debt, however small or trifling, is not sufficient to make the settlement fraudulent and void, so, on the other, the subsequent creditor, to im- peach it, is not obliged to prove that the party was absolutely insolvent at the time. June 16, 17, IN 1800, H. G. Livingston was indebted to the intestate, j) nd who brought an action against H. G. L., and recovered a judgment in the Supreme Court, for 6,000 dollars and 42 cents, debt, and 92 dollars and 50 cents, costs, which was docketed the 7th of August, 1807. During this time, as the plaintiff alleged, H. G. L. owned real property to the value of above 40,000 dollars ; but his personal estate was insufficient to pay this debt. On the 7th of December, 482 ] *1805, H. G. L. executed a deed to G. Aspinwall, defend- ant, (for the consideration of 5,000 dollars, expressed.) of certain lands, being 5,483 acres in the county of Ontario, a lot of land in the city of New-York, and a farm in Dutchess County, IN TRUST, to convey the same to such persons and for such uses, and in such manner, as Ann, his wife, by any act or deed in writing, or by will, should direct and appoint ; and in default thereof, then in trust for her heirs, to be con- veyed to them by the trustee ; and in trust, that the said Ann . should be permitted to take and receive the rents and profits to her separate use, and her separate receipt to be a sufficient discharge, &c. ; which deed the plaintiff alleged to be vol- 379 CASES IN CHANCERY. 482 untary and fraudulent, and made with a view to defeat the 1818. ntestate and other creditors. \~*r~^s-*+-/ The trustee, afterwards, conveyed part of the lands to REAI.E bona fide purchasers, the proceeds of which had been re- L, V , N V Q STOH ceived by the wife, or cestuy que trust; and the plaintiff alleged, that the residue remaining in the trustee, was worth above 40,000 dollars; that, on the 12th of July, 1809, IL G. L. paid part of the debt due to the intestate, but that there now remained due on the judgment, 3,072 dollars, and there was no visible property of H. G. L. out of which the same could be paid or satisfied, except the lands so held by 6r. A., in trust, and that the wife refused to direct the pay ment out of those lands. The bill, which was filed the 29th of January, 1816, prayed, that G. A. might be directed to sell and convey so much of the land, undisposed of, as might be sufficient to pay the balance due the intestate, and for other relief, &c. The defendants, H. G. L. and his wife, in their answer, admitted, that, in 1800, there were unsettled accounts be- tween him and the intestate, which, by a rule of the Supreme Court, were referred to referees, who, in August term, 1807, reported the sum of 6000 dollars and 42 cents, due to the intestate, for which judgment was rendered *in his favor, [ * 483 \ with costs. That //. G. L. was seized of the lands men- tioned in the bill at the time of the judgment, but not before he became so indebted to the intestate, particularly as to the lands in Ontario, which were unimproved. He denied that the lands mentioned in the bill were worth near the sum of 40,000 dollars, but admitted that the lands mentioned in the deed of trust comprised the greatest part of his real estate. He stated, that when he executed the deed, he was actually worth 40,000 dollars, and that his debts did not amount to 10,000 Collars ; and he denied that the deed was executed with any fiaudulent intent. He alleged, that prior to, and in contemplation of his marriage, and in consideration of such marriage, he agreed with V. N., the father of his wife, that, in case of the marriage, he would settle upon her and her children 30,000 dollars ; that he was then worth 80,000 dollars ; and that, afterwards, at the particular instance of V. N., and in compliance with his agreement, he executed the deed. He admitted the balance due to the plaintiff, as charged. He stated, that for several years after the judg- ment, he resided at Harlaem, and had horses and carriages and a well-furnished house, and that the plaintiff might have obtained satisfaction out of his personal property. That he is now worth but little, having been confined to his bed for Iht last ten years, and expended nearly all his estate ; that 373 183 CASES IN CHANCERY. 1818. tne lands conveyed in trust have not produced sufficient to ,^-v^^x defray the ordinary expenses of his wife and five children. READE The wife, in her answer, insisted, that as her whole life had LIVINGSTON. f a ^ en a sacrifice to the unfortunate condition of her husband, and having five children to support and educate, the deed could not be considered as made with any fraudulent intent ; and that it was the delay of the plaintiff in enforcing the payment of his debt, that had caused the injury of which he complained. | * 484 ] *It was proved that, in 1794, H. G. L. owned a farm al Red Hook, which he bought of the intestate for 10,000 dol- lars, and which he afterwards sold to E. Kane, for 1 ,000 dol- lars in cash, and about 7,000 acres of new land, at two dollars per acre, part of which lands were comprised in the deed of trust. That, previous to 1807, H. G. L. built a house at Harlaem, on the land of V. N., which cost about 8,000 dol- lars, which was afterwards sold, and the money paid to V. N., on account of the debts of H. G. L. V. Nutter stated, that his daughter was about 16 years of age, in 1791, when she married H. G. L., who was then sup posed to be affluent ; that just before the marriage, the wife of the witness informed him that H. G. L. had promised, if they would consent to the marriage, to settle 30,000 dollars on their daughter, after the marriage. That the witness after- wards reminded H. G. L. of his promise, who answered the witness that he need not be uneasy, that he had made such a promise, and intended to fulfil it. Another witness also proved the admission by H. G. L. of his having made the promise of settlement on his wife. That H. G. L., who died in the summer of 1817, was bed-ridden and helpless during the last ten years of his life. That, in 1807, his personal property was not worth more than 1 ,000 dollars, and he pos- sessed no real estate free from encumbrance. It appeared that the debt due the intestate originated in two bonds dated October 31st, 1794, one for 1,000 pounds, and the other for 1,510/. 17s. 4rf., and which were given for the farm at Red Hook, purchased by H. G. L. of the intestate. June ic, 17, P. Ruggles, for the plaintiff. and 18. T. A. Emmet, and M. & WiTkins, for the defendants. [ * 485 ] *The cause stood over for consideration ; and the follow- September 28. ing opinion was, this day, delivered by the Court. THE CHANCELLOR. This case turns upon the validity of 374 CASES IN CHANCERY. 485 the conveyance by Henry G. Livingston to Gilbert Aspin- 1818 wall. ^*~^"*^ The bill charges, that Livingston was indebted to John READE Reade, the plaintiff's intestate, as early as the year 1SOO, in v - 6,000 dollars, and that, in August term, 1807, Reade obtained a judgment against H. G. L., for upwards of that sum, and that 3,072 dollars of it remains unpaid. That by deed, dated the 7th of December, 1805, H. G. L. conveyed his lands, to the amount in value of 45,000 dollars, to Aspinwall, in trust for his wife, and that he had no other property to satisfy the balance of the judgment. The answer of H. G. L., and of his wife, admitted that, in 1800, there were sundry unsettled accounts between the parties, and that they were finally, by rule of Court, referred to referees, and that the judgment upon such reference was rendered, as charged in the bill ; they admit further, that the lands included in the deed to Aspinwall, composed the greater part of the real estate of H. G. L., though they deny the lands to be of the value charged. H. G. L. states that, prior to his marriage, and with a view to it, he agreed with his wife's father to settle on her, and her children, 30,000 dollars, and that the deed was executed in pursuance of that agreement. He -admits the sum of 1,392 dollars and 92 cents to be still due upon the judgment, and that Reade might have obtained satisfaction out of his personal estate ; and he declares, that he was then worth little or no property, though, at the time of his marriage, he was worth 80,000 dollars. It appears, by the proof taken in the cause, that the judg- ment was founded upon two bonds dated in the year 1794 ; that the consideration of them was a farm sold by Reade to H. G. L., and that with the proceeds, or *by the exchange * 486 ] of that farm, H. G. L. procured the greater part of the lands included in the deed of settlement. That he was married as early as the year 1791, and that at the date of the judgment he owned personal property to 1,000 dollars ; but it does not appear that he possessed any real property free from encum- brance. Valentine Nutter, the wife's father, says, that his wife, Mrs. Nutter, informed him, just previous to the marriage, that H. G. L. had promised to settle 30,000 dollars on his daughter, and that H. G. L. frequently, after the marriage, had admitted the promise, and at last, at the repeated request of the witness, executed the deed. The deed to Aspinwall contains no reference to, or recital of, any previous agreement ; but it is simply a deed in fee, for the consideration of 5,000 dollars, and in trust to convey the lands, and the rents and profits thereof, as the wife of H. G. 375 486 CASES FN CHANCERY. 1818. L., by deed or will, should direct; and, in default of such v^^-s,^^/ direction, in trust for her heirs. READE I have stated, perhaps, as much of the pleadings and proofs LIVINGSTON. as mav De requisite to a full understanding and discussion of the important legal questions involved in the case. H. G. L. owed the very debt now in question, at the time of the settlement of his real estate upon his wife; and a great part of the lands so settled were purchased with prop- erty procured by that same debt. The deed of settlement was not made until 1 4 years after the marriage, when it is admitted, that, in the mean time, his estate had diminished one half. It had no reference or allusion to any ante-nup- tial contract, nor is there any evidence in writing of such an agreement. Upon such a state of facts, my earliest impressions were against the soundness of the defence ; and I apprehend, there is not a case to be met with that gives any colorable support to such a settlement against such a creditor. But after the [ * 487 ] elaborate argument which has been made in favor *of the deed, I have considered it due to the counsel, as well as to the im- portance of every question of this nature, to look into the cases, and to give to every topic of argument a careful in- vestigation. The settlement was a voluntary one. There was no portion advanced by, or on behalf of the wife, nor was it founded on any ante-nuptial contract duly ascertained, or on any other valuable consideration. The only attempt at any support of that kind, is the parol promise stated in the an- swer of H. G. L. to have been made by him previous to his marriage, and which is mentioned also by some of the wit- nesses. There are several reasons why I think the settlement cannot derive any aid from that parol agreement. The proof of the agreement consists only of parol decla- rations and confessions of H. G. L., made after his marriage. All that Mr. Nutter knows beyond those confessions, is from information given to him by his wife. We have no proof in writing, or from any person present, of any agreement made prior to the marriage, and in consideration of it. The proof, such as it is, is extremely loose. The answer of H. G. L. states, that he agreed, prior to the marriage, with his wife's father, to settle on her and her children 30.000 dollars ; but Mr. Nutter does not pretend that any such agreement was made with him. The agreement, as the answer states, was also to settle that sum on the wife and her children ; whereas the deed gives the entire and absolute disposal of it to the wife. The amount was to be 30,000 dollars ; whereas the deed was of a large quantity of land, being the greater part 376 CASES IN CHANCERY. 437 of his real estate, without any certain defined value ; and he 1818. only denies its value to be 40,000 dollars. The settlement s^-^-*^x and the agreement do not, therefore, correspond with any READE precision, and hot being made until fourteen years after the LlvIN g' STOM marriage, and having no allusion to it, every intendment in favor of the settlement as being the performance of a *prior agreement seems to fail. In Lavender v. Blackstone, [ * 488 ] (2 Lev. 146. 27 Car. II.) there was a parol promise by an infant on marriage, to settle an estate when he came of age, and though the Court considered such a parol promise might be good, (it being before the existence of the statute of frauds,) yet the K. B. held, in that case, that " the settlement not being made until three or four years after he came of age, and not being made directly, according to the promise, it should not be presumed to be made in performance of the promise, without a direct proof to that purpose ;" and it was held, in that case, to be fraudulent. If the present case had, therefore, arisen prior to the A settieu.cm statute of frauds, I apprehend it would have been deemed f n fl pu r ae g of a fraudulent settlement in regard to the existing creditors, a parol agree- nom the want of a sufficient connection in point of time, ^o before m^ and of correspondence in point of proof, between the settle- "age, is not ment and the alleged agreement. And, if it did correspond, the proof of the agreement is defective. To support such a settlement upon no other proof of the prior agreement than the declarations of the husband during coverture, would be to overturn the statute of frauds, and to produce the most lax and dangerous doctrines. Every fraudulent debtor might easily render such doctrines subservient to his views, for he has only to declare that he makes such a settlement in consequence of a prior agreement, and he can then transfer all his estate to his family, and defraud his creditors. But this cannot be the sound rule, and we ought, at least, to require, from the person setting up the settlement, direct and certain proof of the agreement, independent of these interested and suspi- cious declarations of the party himself. A settlement after marriage, in pursuance of a valid But a settle- agreement before marriage, may be good and binding. This "*" ^ade'Tu was so admitted in the cases of Jason v. Jervis, (1 Vern. pursuance of a 234.) and Ramsden v. HyUon, (2 Vesey, 304.) *And in [ * 489 ] the case of Griffin v. Stanhope, (Cro. Jac. 454.) and in Sir ^"U^S Ralph jBoui/'s case, (1 Vent. 193.) a settlement after marriage, fore marriage. in pursuance of a piior parol agreement, was held good. 1SS ' But these were cases prior to the statute of frauds, (29 Charles II.) which renders void all parol promises, in consid- eration of marriage ; and, therefore, since the statute, it has been determined, that the agreement, to be valid, must be in VOL. III. 48 377 489 CASES IN CHANCERY. 1818. writing. Thus, in Montacute v. Maxwell, (1 Str. 236. 1 \^^-*^~**~' P- Wms. 618.) the wife filed her bill to oblige her husbaud READE to settle her own estate to her separate use, setting forth a LIVING'STON. P ar l promise before marriage to do it. The defendant pleaded the statute of frauds as to any parol promise ; and Lord Ch. Parker allowed the plea, and observed, that the Court could not take cognizance of such a promise, without " breaking the very words and intention of the statute." He thought, however, that if the husband, after marriage, had, in writing, admitted the former agreement, it might have been material, and a sufficient consideration to support a subse- quent promise in writing. In the case of fiundas v. Dutens. (1 Vcsey,jun. 196.) this point was much discussed. In that case there was a settlement of the wife's property after mar- riage, reciting a parol agreement before marriage, to settle her property, and settling it in pursuance of that agreement, and a bill by the creditors to set aside the settlement. On the part of the plaintiffs, it was contended, that there was no such agreement as was alleged ; and if there was, that the parol agreement was void under the statute. The lord chancellor thought that a suit after marriage on a parol agreement for a settlement upon marriage, and on the ground of part performance, would not do, because the statute is so explicit ; and he adds, " but is there any case where, in the settlement, the parties recite an agreement before marriage, in which it has been considered as within the statute ? " Sir John Scott, who was then solicitor-general, did not think it ( * 490 ] would be good, and the chancellor *said " he would be glad to hear how the counsel would support the settlement." The cause went off on another point ; and the case, though containing no decision on the question, is, as far as it goes, rather an authority against the validity of a settle- ment after marriage, though it contains a recital of a prior parol agreement. It seemed to be admitted, that the parol agreement, as such, was null, and that if it had any effect, it derived it entirely from the recital of it in the deed. Afterwards, in Randall v. Morgan, (12 Vesey, 67.) the master of the rolls alludes to the dicta in this case, and observes, that the effect of a settlement, with such a recital, and supposing the parol agreement to have had actual ex- istence, appears not to have been decided; but he doubted, extremely, whether a letter after marriage, referring to a parol promise before marriage, would bind ; for " the promise being in itself a nullity, producing no obligation, a written recog- nition after the marriage would give it no validity." Sir Wm. Grant may not have recollected an anonymou case in Precedents in Chancery, p. 101, where a settlemen 378 CASES IN CHANCERY. 490 after marriage, recited to be in consideration of a portion 1818. secured, was held to afford a presumption of a previous *^^~^~+*s agreement. But such a loose note of the decision is scarcely READE worth observation as an authority, and is not to be compared L lvIN e' ST05 with any opinion of this distinguished judge. It ought here to be noticed, also, that the case of Dtwt^cw v. .Dutercs, is a little differently reported in 2 COT'S Cases in Chancery, p. 235. ; and Lord Thurlow is there made to say, that the settlement, with a recital of a prior parol agreement, was valid, but that if it was not so, the plaintiffs had no equity against the fund which they sought. We cannot say, from this report of the case, on which ground the bill was dismissed, nor does it even appear whether *the creditors [ * 491 ] were prior or subsequent to the settlement. A case so uncertain and so variously reported, can be of no material use or authority. Roberts, in his Treatise on Fraudulent, Conveyances, p. 243, seems to think it settled, that proof of a parol agreement be fore marriage will support the subsequent settlement against the claims of creditors and purchasers. And yet, he says, it cannot be denied that such parol agreements are within the statute of frauds, and have no legal obligation, and are without legal remedy, " and no proof can be admitted to give them a substantive validity." There are, however, he con- tinues to observe, " many instances, both at law and in equity, of their influence on the construction and efficacy of written agreements ! " A writer that will dictate in such a heedless and inconsistent manner, is not to be regarded ; and though I think that all questions of this kind ought to be decided upon principles to be deduced from a critical examination of adjudged cases, and are not to rest upon the loose observa- tions and speculations of elementary writers, yet I may, in this instance, refer to the able and excellent treatise of Mr. Atherley on Marriage Settlements. He says, (p. 149.) that the doctrine cannot possibly be sustained, that a settlement after marriage can rest its validity, as against creditors, on a mere parol agreement before marriage ; for the agreement can only be proved by parol evidence ; and to admit such evidence would be inconsistent with the spirit and design of the statute of frauds. I doubt much whether a post-nuptial settlement can be Thc g |ia s- 1111-1 1-1 f i rr tlement after held valid as against creditors, by the mere force and effect marriage, re- of a recital in it of a prior parol agreement. The weight of ' ^cement 7 *^ authority, as well as the reason and policy of the case, I tcred into be- should be inclined to think, are against it ; but whatever may ff r tJ?* r SS ii 1*1 /Y 11 seems, nidi be the rule in that case, it is sufficient to observe, that the set- it would not, therefore, b valid against jreditora 379 492* CASES IN CHANCERY. 1818. tlement in question has no .recital, and is not attended with v^^-^^-^^x any written recognition whatever of any prior *agreement. READE There is not a single case that gives countenance to such a LIVING'STON. sett l ement - The decision in Beaumont v. Thorp (1 Ves. 27. Belt's Supp. S. C.) seems to be completely in point. That was a settlement in consideration of a marriage already had, and, as Lord Hardwicke observed, " without recital of any articles before the marriage, and so on the face of it voluntary." He declared it fraudulent against creditors, under the statute of Eliz., as the party was indebted to the plaintiff when he made the settlement. A voluntary If the settlement be considered, as I think it ought to be, marriage, by a unconnected with any ante-nuptial agreement, the simple ques- person indebted tion then is, whether such a voluntary settlement after marriage, at the tune, is , . , ,, , ., ,- , . , fraudulent and by a party indebted at the time, be not, as against such void against creditors, absolutely fraudulent and void. I think this question can be most satisfactorily answered in the affirmative ; but the manner in which it has been argued, imposes on me the necessity of reviewing the cases. As early as the case of &haiv v. Standysh, (2 Vern. 326.) the distinction on the subject of voluntary conveyances seems to have been taken and understood, between creditors exist- ing at the time of the conveyance, and subsequent creditors, and that it was clearly void as to the former, though not as of course against the latter. This was so advanced upon ar- gument in that case ; and, perhaps, it was a distinction of common law growth ; for it was agreed in Tivyne's case, (3 Co. 83. a.) that an estate made by fraud shall be avoided only by him who has prior right ; but he who hath subsequent right shall not avoid it. But in the Exchequer case of St. Amand v. Bar- bara, (Comyn's Rep. 255.) a settlement was made upon a child by a party indebted by bond, and who afterwards be- came also indebted by bond. It was admitted as a doubtful point, whether, if the party had not been indebted at the time, the settlement would have been fraudulent as against [ * 493 ] the subsequent Creditors ; but as the party was indebted at the time, the settlement was void against debts contracted after- wards, and all the bond creditors were allowed to come in as against the settlement. If the rule was otherwise, it was said in this case, that the same result would follow in another way ; for the subsequent bond creditors would be permitted to stand in the place of the prior bond creditors, and the assets be so marshalled as to satisfy all. Lord Talbot considered it a doubtful point, and forebore an opinion, in Jones v. Marsh, (Cases Temp. Talbot, 63.) whether a voluntary settlement, without consideration, would be held fraudulent as against a subsequent creditor of many 380 CASES IN CHANCERY. years afterwards. But though there might be doubts on the 1318. point at that day, it seems to have been long since settled, \^*-^~^, that if the party be not indebted at the time, and has no READ*. fraudulent views, a subsequent creditor cannot impeach a LIVINGS! prior settlement, on the mere ground of its being voluntary. This point was fully explained by Lord Hardwicke in Russel v. Hammond, (1 Aik. 15.) where, speaking of voluntary conveyances, he says, he has hardly known a case where the person conveying was indebted at the time, and the settle- ment not deemed fraudulent; but the conveyance is not fraudulent where the party making it is not indebted at the time. Subsequent debts will not shake such a settlement, unless there be some badge of actual fraud, as a continuance in possession. The observation of the chancellor, that " he had hardly known a case," would imply, that there had been cases in which a voluntary settlement was held good, even though the party was indebted at the time. But it is sufficient to observe that no such case appears; and we cannot place great reliance on the report, as to the precise words used by the Court; especially as Lord Hardwicke speaks, in othei cases, without any such qualification. *In Stileman v. Ashdown, (2 Aik. 477.) Brown v. Jones, (1 [ * 494 ] Aik. 190.) Wheeler v. Caryl, (Amb. 121.) and Hylton v. Biscoe, ( Ves. 304.) Lord Hardwicke defined what were good settlements after marriage, as against creditors ; and he held those good which were made in consideration of a portion paid at the time by, or on behalf of the wife, or in consideration of an agreement by articles before marriage. Such settlements are of equal validity with those made before marriage, in con- sideration of marriage, and which, it is agreed, are good, even though the party be then indebted. (Nairn v. Prowse, 6 Vesey, 759. Campion v. Cotton, 17 Vesey, 271, 2. George v. Milbanke, 9 Vesey, 193.) But he said, if the settlement after marriage was in consideration of marriage only, it was voluntary and fraudulent against creditors ; and though he was not even indebted at the time, yet if he made the settle- ment with a view to a future indebtedness, it was equally fraudulent. So, in Ward v. Shallet, (2 Vesey, 18.) he admits a settlement after marriage, in consideration of a portion ad- vanced, or in consideration of the wife parting with a con- tingent interest secured by her husband's bond, before mar- riage, to be good ; but still he qualifies the admission by saying, there must be no " fraud or great inadequacy." All the cases assume the position to be undeniable, that the husband must not be indebted at the time of the settle- ment. They leave no possible doubt on the point. In Mid- 381 494 CASES IN CHANCERY. 1818. dlecome v. Marlow, (2 Atk. 519.) Lord Hardwicke held a ^r-^~*+-s post-nuptial settlement good, " there being no proof of the READE husband being indebted at the time ; there was not so much LIVINGSTON as a sin ^ e creditor." The settlement in this case was also very reasonable, it being only of the personal estate received from the wife. So, again, in Taylor v. Jones, (2 Atk. 600.) a settlement after marriage on the wife and children was held fraudulent, as to creditors, under the 13th Eliz. ; and this [ * 495 ] case is worthy of notice *for the doctrines which it contains. The settlement was held to be fraudulent, as well in respect to creditors after, as before the settlement, for the debtor continued in possession of the property settled ; and the stat- ute of Eliz. was held to extend equally to the subsequent creditors who were delayed or defrauded. It was further observed by the master of the rolls, " that it was not material, in that case, what the circumstances of the father were at the time of the settlement, any farther than as evidence to show, if he was in indigent circumstances, that it was made with an intent to commit a fraud." This case contains also a just observation on the sympathy which is usually excited, or attempted to be excited, in these cases, in favor of the objects of the settlement. " I have always," observes the master of the rolls, " a great com- passion for wife and children ; yet, on the other side, it is possible, if creditors should not have their debts, their wives and children may be reduced to want." In Walker v. Burroivs (1 Atk. 93.) Lord Hardwicke ad- mitted, most explicitly, that if the party was indebted at the time, the voluntary settlement was void ; and he admitted, with equal certainty, that if the party was not indebted at the time, or immediately after the execution of the deed, (which would be evidence of intentional fraud,) the pro- vision for the wife and children would not be affected by subsequent debts. But if the feet of indebtedness at the time be established, then it was held, that " it would have run on so as to take in all subsequent creditors." Mr. Mad- dock (1 Madd. Ch. Rep. 420. note.) says he has seen a MS. note of this case, and that it agrees with the printed report ; and this case may be considered as establishing the doctrine, as far as the decision of Lord Hardwicke could establish it, that indebtedness at the time will defeat a post-nuptial vol- untary settlement, and that if it be set aside in favor of a j * 496 ] creditor at *the time, all the subsequent creditors are let in on the principle of equal apportionment, or marshalling of assets. Lord Hardwicke 's decisions are all consistent on this in- teresting subject. 382 CASES IN CHANCERY. 496 Th-rs, in White v. Sansom, (3 ^fr. 410.) it was a doubtful 1818. point whc'her the plaintiff's debt accrued until after the s^-v x^ settlement and on that doubt the bill was dismissed. In READE Beaumont v. Thorp, already cited, the settlement was by a v - i i .L j L .Lif .. i -i LIVINGSTON. man mder/ted at the time ; and it was set aside ; and all the specialty creditors, before and after the settlement, were let in. So, in Lord Townshend v. Wind ham, (2 Veszy, 1.) Lord Hardivicke expressed himself in the most explicit and decided manner. He said, that he took it, that a man "actually mdebted, and conveying voluntarily, always meant to defraud creditors." I understand him to mean here, that this was 'he conclusion of law, which was not to be gainsayed ; and he said he knew of no case where a voluntary conveyance to a child by a man indebted at the time, was not set aside for the benefit of creditors ; but he said, that a voluntary conveyance, without any badge of fraud, and by a person not indebted at the time, would be good, though he afterwards became indebted. He spoke strongly in favor of the supe- riority of the claims of creditors over family provisions, and observed, that '" though an unfortunate case may arise in respect to children, for whom parents are bound by nature to provide, it is impossible to say, the consideration in respect of them is of so high a nature as that of paying just debts, and, therefore, the Court never preferred them to just cred- itors." In Fitzer v. Fitzer, (2 Atk. 511.) Lord Hardwicke asked the attorney-general if there was an instance in that Court where a conveyance from husband to wife, without any pecuniary consideration moving from the wife, had been held to be good against creditors. *The same rules and distinctions are declared and enforced * 497 ] throughout the subsequent decisions. In Stephen v. Olive, (2 Bro. 90.) a settlement was made after marriage, by a person not indebted except in 500 pounds, secured by mortgage on the settled estate ; and the master of the rolls held, that a settlement after marriage, in favor of a wife and child, by a person not indebted at the time, was good against subsequent creditors ; and he refused to grant relief in this case to a subsequent creditor, notwith- standing the settler was indebted at the time, seeing that the debt existing at the time was secured by a mortgage on all the estate settled. And Lord Eldon afterwards, in George v. Milbanke, (9 Vesey, 193.) allows of the same exception, when he says, that if the voluntary settlement contains a provision for the payment of debts then existing, that makes it good against all future creditors. It cannot escape observation, that the only question in these cases was respecting the subsequent creditors. There 383 497 CASES IN CHANCERY. 1818. IS no doubt, in any case, as to the safety and security of the ^.rf^^^-^^x then existing creditor. No voluntary post-nuptial settlement READE was ever permitted to affect him ; and the cases seem to LIVINGSTON. a g ree j tna t the subsequent creditors are let in only in partic- ular cases ; as where the settlement was made in contem- plation of future debts, or where it is requisite to interfere and set aside the settlement, in favor of the prior creditor, or where the subsequent creditor can impeach the settlement, as fraudulent, by reason of the prior indebtedness. But the case of Lush v. Wilkinson (5 Vcsey, 384.) has been much relied upon, as if it gave more strength to the settlement against subsequent debts, than the prior cases seem willing to allow. The settlement in that case was on the wife, after mar- riage, of an annuity charged upon lots subject to two mort gages. The bill was by a subsequent creditor against the [ * 41)8 ] *executor and widow of the husband, to set aside the deed granting the annuity, and charged that the husband was in- debted to several persons, and in insolvent circumstances, at the date of the deed. The answer averred that the hus- band was not insolvent, and that, except the two mortgages, he did not owe above 100 pounds at the time, and that none of the debts were due at his death. It was contended, on the part of the defendants, that there was no evidence of any debt at the time, except the two mortgages, for the plaintiff produced no testimony ; and the opinion of Lord Mansfield, in Doe v. Routledge, (Cowp. 705.) was referred to, in which he considers that the validity of a voluntary settlement depended on the fact whether the settler was indebted at the time. The counsel on the other side admitted the law to be, that there must be a debt at the time. Lord Ahanley, the master of the rolls, then observes, that the plaintiff appeared as a subsequent creditor, and without proving any one antecedent debt, and he comes with a fishing bill, and desires an account and an inquiry, in order to prove antecedent debts ; and the bill was dismissed with liberty to file another. This was the case of a subsequent creditor ; and therefore it does not apply to the case before me, except so far as it assumes, like all other cases, the rule to be settled, that a voluntary settlement never can impair a subsisting debt. But there is a dictum of the master of the rolls in this case which has been thought to be of some moment, where he observes that a single antecedent debt w T ill not do. Every man must be indebted for the common bills for his house It must depend upon this whether tie was in insolvent cur cumstances at the time. 384 CASES IN CHANCERY. 49S Such a loose dictum, one would suppose, was not of much 1818. weight ; especially as there is no preceding case which gives the least countenance to it. Another master of the rolls had before said, in Taylor \. Jones, already cited, that the circumstances of the settler at the time of *the settlement were not material, except as to the question of actual, inten- tional fraud ; and that intention, we know, is never the inquiry in respect to the demands of the prior creditors. If insol- vency can ever be made a question, as to these voluntary settlements, it can only be in respect to the subsequent cred- itors ; and Lord Alvanley was speaking of such a case, and of none other. But even here the cases are numerous to show, that if the settlement be once set aside by the prior creditors, subsequent creditors are entitled to come in, and be paid out of the proceeds of the settled estate. In Kidney \. Coussmaker, (12 Vesey, 133.) the question was on a post-nuptial settlement as against creditors ; and it was insisted, that they were entitled to defeat it, if the settler was indebted at the time ; but there was said to be no proof of a single debt existing at the date of the settlement. Sir Wm. Grant, in giving his opinion, observed, that in Lush v. Wilkinson, the bill was filed for the purpose of affecting the settlement, upon the ground, that the settler was insolvent at the time it was made, and that there was no evidence in support of such a charge, and the bill was dismissed. He said he was disposed to follow the decision of Lord Rosslyn, in Montague v. Lord Sandwich, (July, 1797, cited, ib. p. 148. and 5 Vesey, 386. note,) that the settlement was fraudulent only as against such creditors as were creditors at the time. Lord Rosslyn, in the case referred to, declared a settlement void, as to the creditors, prior to its date. There was no question of insolvency made ; but it was clearly held, by Lord Rosslyn, in that case, (see 12 Vesey, 158. note,) that if the settlement be affected as fraudulent against such cred- itors, the subject is thrown into assets, and all subsequent creditors are let in. The last case on the subject which I shall notice, is that of Holloivay v. Millar J. (1 Mad dock's Ch. Rep. 414.) That was a bill by creditors against the parties to a voluntary Settlement upon a natural child, praying, that the deficiency [*500 J of assets, if any, might be made good out of the settled estate. The plaintiffs were subsequent creditors, and the bill did not state that the party was indebted when the settlement was made. The counsel for the plaintiffs contended, that if it was necessary to show, that the party was indebted at the time, VOL. III. 49 385 500 CASES IN CHANCERY. a reference ought to be ordered for that purpose ; hut it \vas observed, on the other side, that there was no charge in the bill to warrant the inquiry, and that a, man must be indebted, LIVIN ro* anc ^ l al 'g e ty so ? to render the settlement invalid, mere trifling debts in the course of house-keeping would not be sufficient. The vice-chancellor, in giving his opinion, said, that the settler here was not indebted at the time, and that a volun tary conveyance could not be avoided by subsequent cred itors, except on the ground of a fraudulent intent ; for that t was clear, that a voluntary settlement even in favor of a stranger, by a person not indebted at the time, nor meaning a fraud, was good against subsequent creditors. But he said further, that a voluntary disposition even in favor of a child, was not good if the party was indebted ; and he refused an inquiry, whether the party was indebted at the time, because there was no foundation for such an inquiry laid by the bill. .* /oiuntuM The conclusion to be drawn from the cases is, that if the erson* eU indoh/ P art y be indebted at the time of the voluntary settlement, it : .s presumed is presumed to be fraudulent in respect to such debts, and aD ex^ no circumstance will permit those debts to be affected by the isting debts, settlement, or repel the legal presumption of fraud. The ivithout regard . / , , i i i , ,i to their amount, presumption or law, in this case, does not depend upon the or to the extent amount of the debts, or the extent of the property in settle- sett!ed,^rto 6 the rnent, or the circumstances of the party. There is no such circumstances Hne of distinction set up, or traced in any of the cases. The attempt would be embarrassing, if not dangerous to the [ * 501 ] rights of the creditor, and prove an inlet to *fraud. The law has, therefore, wisely disabled the debtor from making any voluntary settlement of his estate, to stand in the way of his existing debts. This is the clear and uniform doctrine of the cases, and it is sufficient for the decision of the present cause. But with re- With respect to the claims of subsequent creditors, there jMtf debt's Se \t IS more difficulty in arriving at the conclusion ; and I am not seems, that the called upon in this case to give any definitive opinion, for frTud^arisino- there are no such creditors before the Court. But since the from the party subject has been examined, I would suggest what appears to being- indebted J , , ,, , ,-11 r r A, J' at the time, may me > at present, but with my mind still open lor lurther dis- be repelled by cussion and consideration, to be the better opinion from the circumstances; , .1 . . t , c f i ^i j as that the exist- cases ; it is, that the presumption ot iraud as to these crca- ing debts are itors, arising from the circumstance, that the party was ^rtgage, or by indebted at the time, is repelled by the fact of these debts a provision being secured by mortgage, or by a provision in the settle- made for them ,, , /. J u * **] j in the settle- nient ; that it no such circumstance exists, they are entitled to impeach the settlement by a bill properly adapted to their purpose, and charging and proving indebtedness at the t ; me, 386 CASES IN CHANCERY. 501 so that their rights will not depend on the mere pleasure of the J 3] 3. prior creditors, whether they will or will not impeach the settle- ^*-x, -*^/ ment ; that the question then arises, To what extent must the REIDE subsequent creditors show a prior indebtedness ? Must they LIVINGSTOB follow the dictum of Lord Alvanley, and show insolvency, or And SM/W- will it be sufficient to show any prior debt, however small, as i" ent .creditors is contended for by Mr. Atherley, with his usual ability, in his the y settiemeat, Treatise on Marriage Settlements? (Ath. Mar. Set. p. 212. on lhe groumf to 219.) I should apprehend, that the subsequent creditors edues's; '"iMie would be required to 20 so far, and only so far, in showing can sllow antc - , , iji ai i i -j ? cedent debts debts, as would be sumcient to raise reasonable evidence ot sufficient in a- a fraudulent intent. To show any existing debt, however mut to atibrd , a . j -. ul /, i i reasonable evi- triiiing and inevitable, (to which every person is, more or dence of a less, subject,) would not surely support a presumption of fraudulent in- fraud in fact; no voluntary settlement in any possible case not 'obliged to could stand upon that construction. *I should rather con- [ * 502 ] elude, that the fraud in the voluntary settlement was an ? how the abs - . f /-i i i A i f - A i lute insolvency inference or law, and ought to be so, as tar as it concerned O f the person existing debts ; but that, as to subsequent debts, there is no making the set- such necessary legal presumption, and there must be proof of fraud in fact ; and the indebtedness at the time, though not amounting to insolvency, must be such as to warrant that conclusion. It appears, in all the cases, (and particularly in Under the 13 the decision of Sir Thomas Planter since the publication of 10.^.44 sfs!) M. Atherlctfs treatise) that a marked distinction does exist, lhere . ' 3 a dis - under the statute of 13 E'iz., between prior and subsequent tween"prior and creditors, in respect to these voluntary settlements; and it is subsequent now settled, that the settlement is not void, as of course, gard to'vohnh against the latter, when there were no prior debts at the time. tar y sett1 *- The law in Massachusetts seems to be laid down according to this view of the subject. In Bennett v. Bedford Bank, (11 Ti/ng, 421.) there was a voluntary conveyance to a son by a father, indebted at the time, but not in embarrassed circumstances, or equal in debt to the value of his property. The debt to the plaintiff did not accrue until several years afterwards. It was held by the Court, that as there was no fraud in fact, the deed in this case was good against the subsequent creditor, " and against all persons but such as were creditors at the time." But there is a case, recently decided by the Supreme Court uf Errors of Connecticut, (Salmon v. Bennett, 1 Day's Conn. Rep. N. S. p. 525.) which lays down a rule somewhat differ- ent from that which I have deduced from the English cases. The question arose in an action of ejectment. The plain- tirf had purchased Virginia lands of Sherwood, in 1794. and paid him the purchase money. In 1809, by a decree in chancery, the sale was annulled, on the ground of fraud, and 3-S7 503* CASES IN CHANCERY. 1818. * ne purchase money decreed to be refunded, on condition ^^-^~+*^/ that the plaintiff executed a release. This was *done, and READE he afterwards, in 1814, levied an execution founded on tha LIVINGSTON, decree, n lands which Shcncood owned in 1794, but which he had conveyed to his son in 1798, in consideration of natural affection only, and which lands the son had, in 1 802, conveyed to the defendant, with knowledge of the deed to the son. It was proved, that when Sherwood executed the deed of gift, he was not indebted to any person, except to the plaintiff, in the manner stated, and that the lands con- veyed did not contain more than one eighth part of his real estate. But it was admitted, that long before the levy of the execution, he had conveyed all his real estate, and was, at that time, destitute of property. One question was, whether the deed to the son, being voluntary, was not fraudulent as against the plaintiff; and as the opinion of the Court was on this point, I need not notice any other. It was also made a question, at the bar, whether the plaintiff was to be deemed an existing creditor at the time of the deed to the son ; but as the Court assumed the fact of an existing indebtedness at the time of the con- veyance, I need not notice that point. The judgment of the Court was in favor of the defendant, and the opinion of eight of the judges, as delivered by the chief justice, was, that a distinction existed in the case of a voluntary conveyance, between the children of the grantor and strangers, and that mere indebtedness at the time will not, in all cases, render a voluntary conveyance void as to creditors, where it is a^provision for a child ; tha.t an actual or express intent to defraud need not be proved, for this would be impracticable in many instances where the convey- ance ought not to be established, and it may be collected from the circumstances of the case ; that if there be no fraudulent intent, and the grantor be in prosperous circum- stances, unembarrassed, and not considerably indebted, and the gift a reasonable provision for the child, leaving ample * 504 ] funds unencumbered, for *the payment of the grantor's debts, the voluntary conveyance to the child will be valid against existing creditors. But if the grantor be considerably in- debted and embarrassed, and on the eve of bankruptcy, or if the gift be unreasonable, disproportioned to his property, and leaving a scanty provision for his debts, the conveyance will be void, though there be no fraudulent intent. And it was concluded, that, under the circumstances of that case, the indebtedness of the grantor, at the time, to the plaintiff, was not sufficient to affect the conveyance to his son. The Court do not refer to authorities in support of theii 388 CASES IN CHANCERY. opinion, and, perhaps, they may have intended not to follow, 1818. strictly, the decisions at Westminster Hall, under the statute ^^^^-^.. of 13 Eliz. I can only say that, according to my imperfect READS view of those decisions, (and by which I consider myself LIVINGS* governed,) this case was not decided in conformity to them ; but I make this observation with great deference to that Court. There may be loose sayings, and mere notes of cases, from which nothing very certain or intelligible can be deduced ; but I have not been able to find the case in which a mere voluntary conveyance to a wife or child has been plainly and directly held good against a creditor existing at the time. The cases appear to me to be upon that point uniformly in favor of the creditor. The vice-chancellor, in Holltway v. Millard, says, in so many words, that "a volun- tary disposition, even in favor of a child, is not good, if the party is indebted at the time." The cases of St. Amand v. Barbara, Fitzer v. Fitzer, Taylor v. Jones, and, indeed, the general language throughout the cases, seem to me to estab- lish this point. So Lord Hardwicke observed, in Lord Townshend v. Wmdham, that " he knew of no case on the 13th Eliz. where a man, indebted at the time, makes a mere voluntary conveyance to a child, without consideration, and dies indebted, but that it shall be considered as part of his estate for" the benefit of his creditors." In a preceding part of the *same page, he said expressly, there was "no such [*505 | case," unless the conveyance was " in consideration of mar- riage, or other valuable consideration ; " and he draws the distinction between prior and subsequent creditors, in saying, that if the voluntary conveyance of real estate, or a chattel interest, was by one not indebted at the time, and was for a child, and no particular evidence or badge of fraud as against subsequent creditors, it would be good. The decision in that case was, that a general power of appointment given over an estate, in lieu of a present interest in it, having been executed voluntarily, though for a daughter, was to be deemed assets in favor of creditors. If the question rests not upon an actual fraudulent intent, (as is admitted in all the cases.) it must be a case of fraud in law, arising from the fact of a voluntary disposition of prop- erty, while indebted; and the inference founded on that fact cannot depend on the particular circumstances, or greater or less degree of pecuniary embarrassment of the party. These are matters for consideration, when we are seeking, as in the case of subsequent creditors, for actual fraud. I apprehend 'I is, upon the whole, better and safer not to allow a party to yield to temptation, or natural impulse, by giving him the power of placing property in his family beyond the reach of 389 505 CASES IN CHANCERY. 1818. existing creditors. He must be taught by the doctrines ol ^*~^~^~s the Court, that the claims of justice are prior to those of READS affection. The inclination of my mind is strongly in favor LIVINGSTON ^ * ne P oncv an d wisdom of the rule, which absolutely disables a man from preferring, by any arrangement whatever, and with whatever intention, by gifts of his property, his children to his creditors. Though hard cases may arise in which we should wish the rule to be otherwise, yet, as a permanent regulation, more good will ensue to families, and to the public at large, by a strict adherence to the rule, than by rendering f * 50G ] it subservient to circumstances, or by ^making it to depend upon a fraudulent intent, which is so difficult to ascertain, and frequently so painful to infer. The effect of these donations, by a debtor, inter vivos, is much discussed by Voet in his Commentaries, on the Digest, lib. 39. tit. 5. De Donationibus, s. 20. ; and he concludes, that the property in the hands of the donee is chargeable with the existing debts of the donor. Ex eo autcm, quod donator competently gaudens bcneficio deducit primo tes alienum, facilis est decisio queestionis, utrum donatis omnibus bonis, ant majore corum parte, donatarius ad 2. (Euvres posth. de Pothier, torn. 6.) The question does not arise, in this case, as to what extent 390 CASES IN CHANCERY. olfi these voluntary dispositions of property can be reached. 1818. Here the land itself exists in the hands of the trustee for ^^-^->^ the wife; and we have no concern, at present, with the READE question, how far gifts of chattels, of money, of choses in LIVINGS* action, of corporate, of public stock, or of property alienated to a bona fide purchaser, can be affected. The debt in the present case was large, and the disposition extravagant, being of the greater part of the real estate ; and we have no evi- dence of sufficient property left unencumbered. Even if we were to enter into the particular circumstances of the case, I should have no doubt of the justice of the creditor's claim. I shall, accordingly, decree, that a reference be had to ascertain the balance of principal and interest due to the plaintiff, and that so much of the lands, included in the con- veyance to Gilbert Aspinwall, as the master shall judge suffi- cient to satisfy that amount, with costs, be sold ; and that the said G. A. be directed to join in the conveyance, &c. Decree accordingly, (a) () In Battersbec v. Farrington, (1 Swanton, 106. 1 Wilson, 88. S. C.) de- cided by the master of the rolls, in February, 1818, it was considered as a point fully established, that a voluntary settlement, without fraud, by a husband not indebted, in favor of his wife and children, was good against subsequent creditors. In this case, no creditor attempted to impeach the settlement, though the suit had been pending five years ; nor was there any suggestion, that the husband was indebted at the time of the settlement. It was further held, that a recital in a post-nuptial settlement of ante-nuptial articles, was conclusive against all persons claiming under the settlement, but not evi- dence against creditors, without other distinct proof; because such a doc- trine would give to every trader a power of excluding his creditors, by a recital in a deed to which they are not parties. This case, which was not Been by the chancellor, at the time his opinion was delivered, confirms every branch of the doctrine contained in the above decision. 391 508* CASES IN CHANCERY. 1818. PERIN *C. & S. S. FERINE against DUNN. V. DCNN. [See 5 Johns. Ch. 489.] A voluntary deed, not delivered to the grantee, and kept concealed from the public for near eighteen years, during which time the grantor re- mained in possession of the premises, as owner, cannot be set up against a third person dealing with the grantor, as owner, although lie may have heard of the existence of the deed, at the time he took his mortgage. But the grantee, being the heir at law of the grantor, has a right to redeem. Advancing money to a poor man, to enable him to prosecute his suit, is not mamtcnance. June 23 and THE bill stated, that Simon Swaim, father of the plaintiff, fytjrtSeptem- Catharine Ferine, and grandfather of the plaintiff, Simon S. Ferine, being seised of a farm in Richmond county, and being about to marry a second wife, the widow Dorothy G., who, having a considerable estate, had, i'n contemplation of the marriage, with the knowledge and assent of S. S., conveyed it to the use of her children, in consequence thereof, and in contemplation of the said marriage, and in consideration of natural love and affection for the plaintiff Catharine, his only child, did, by his deed, bearing date the 14th of November, 1794, convey the farm in fee, with covenants as to the title, &c., to his daughter, the said Catharine, then the wife of Joseph Ferine, since deceased. That . S. soon after mar- ried Dorothy G. That the deed was acknowledged on the 19th of January, 1802, and recorded in the office of the clerk of the county on the 13th of November, 1805. That C. P. and her husband permitted S. S. to continue in possession of the farm, as tenant at will, or sufferance, until 1812, when the plaintiff C. P. and her husband took possession, by putting the plaintiff & S. P. into possession as their tenant, excepting a small part of the dwelling-house, in which S. S. was still permitted to continue with his family. That the tenant, by the directions of C. P. and her husband, has [ * 509 ] *furnished *S. S., gratis, with such reasonable portion of the proceeds of the farm as was thought necessary for his com- fortable subsistence. That when S. S. executed the deed to C. P., he was not indebted, and was possessed of other real estate in Richmond county. That, in consequence of the injurious conduct of S. S. and his wife, in relation to the farm, and their vexatious conduct towards the tenant, the plaintiff C. and her husband brought an action of ejectment, in 1813. against S. S., to recover that part of the dwelling- house in his possession, (which suit abated by the deith ot S. S. in April, 1816.) That on the 28th of December, 1813, 392 CASES IN CHANCERY. r>09 C. P. and her husband filed a bill against S. S. and wife, and 1818. ihe defendant, alleging waste and praying an injunction, ^*^^~++^ &c. (a) That in March, 1814, S. S. filed his bill against FERINE C. P. and her husband, and S. S. P., to set aside the deed Du v NN of the 14th of November, 1794, on the ground of ignorance and fraud, in obtaining possession of it, and praying an in- junction to stay the ejectment suit. That before appearance, the husband of C. died, and the suit was continued against the surviving defendants, who appeared and answered, and the injunction was dissolved. That since filing the bill in December, 1813, and pending that suit, the defendant has fraudulently obtained from & S. a deed of all his real estate, not previously conveyed to C., and a bond for 1 ,000 dollars, and a judgment thereon, and also a mortgage from S. S. and his wife, of the premises before conveyed to C., for better securing the payment of the 1,000 dollars. That the de- fendant, when he took the mortgage, knew of the prior deed of 1797 to C. P., and that & S. P. occupied the premises as her tenant. That no part of the sum mentioned in the bond, judgment and mortgage was, in fact, due to the de- fendant ; but the same were executed fraudulently, in order to defeat the title of C., and to disturb *the possession of [ *510J & S. P. That the defendant issued a fi. fa. on the judg- ment, on which the sheriff sold some household furniture of iS 1 . S. That the defendant directed the sheriff to levy on the real estate conveyed to C. P., which he refused to do, unless indemnified, and returned the execution nulla bona, beyond the personal property sold ; and the defendant, there- fore, brought an action against the sheriff for a false return. That the defendant brought an action of ejectment, founded on the mortgage, against S. S. and S. S. P. ; but his attorney having refused to exchange consent rules, in which C. was to be made defendant, the cause remains pending, which the plaintiffs allege was evidence of fraud between $*. to remain in possession, or that 1813. *he held possession, as tenant, or that C. had any right to the premises, except as heir of S. S. He denied that ( . and her husband ever put the grandson into possession, and alleged that S. S. was in full possession, until the grandson was employed to work on the farm upon shares. That in 1812, the grandson informed S. S. that he was about to be married, and requested permission to live in part of the house, and to work on the farm, for half the produce, as a compen- sation for his labor ; that S. S. acceded to the proposal ; and the grandson, for a year, divided the produce of the farm, and then, in concurrence with C. and her husband, refused any longer to comply with the agreement, and retained all the produce of the farm, and refused all necessary relief and support to S. S., &c. &c. That the defendant, at the re- quest of S, S., cut some firewood for S. S., and the grandson forbade it. and the plaintiff C. and her husband then brought three actions of trespass against the defendant, in the Su- preme Court, and filed a bill in chancery for an injunction to stay waste, and the injunction was issued, saving reasonable estovers. That in December, 1813, a short time before, C. and her husband brought the action of ejectment against S. S. ; and these suits were commenced in order to harass and terrify S. S. into a compliance with their views, and to a surrender of his rights. The defendant admitted, that he obtained from S. S. the bond for 1,000 dollars, dated 7th of February, 1814, and a mortgage and judgment ; but denied that he knew, when he took the mortgage, that the premises had been conveyed to C., and he denied that the grandson was in possession at the time, except as a tenant. That before he ever heard of the deed of 1794, S. S. became indebted to the defendant in a considerable sum, as well as to other persons, on the credit of the farm in his possession. That after the deed became known, three suits were commenced against S. S. for these debts, as well as the other *suits by C. and her husband; [*513 that the defendant applied to S. S. for security for his debt, and S. S. promised to give him a mortgage on the farm, pro- vided he would advance money to supply his wants, and become security to pay the money necessary to defend the suit, &c. That /. P. acknowledged that the deed was given to defeat Dorothy of her dower ; that believing the deed to be fraud- ulent, and being desirous to secure the money due to him. and, also, to assist S. S. in his distress, the defendant agreed to advance such sums, and to pay such further sums for S. S. as would make his demand 1,000 dollars, and take a mort- 395 513 CASES IN CHANCERY. 1818. g a e - That, accordingly, on the 7th of February, 1814, a \^-^-^^ bond was executed for that sum, payable the 1st of April FERINE following, and also a mortgage, which was recorded the 25th Dn \ w of April, 1815, after the death of J. P. That the defendant gave *S*. tS*. a note for 125 dollars, which he has since paid ; and he covenanted to pay the amount of 637 dollars and 41 cents, costs, which *S\ *$'. might be bound to pay, in the suits which C. and her husband had instituted against him, being three suits in the Court of Common Pleas, three in the Supreme Court, and one in Chancery, and also, the costs of the suit in Chancery about to be commenced by S. S. That a very considerable part of the 637 dollars and 41 cents has been paid by the defendant, and he has become absolutely bound to pay the residue of it. That the two sums of 125 dollars, and 637 dollars and 41 cents, together with what S. S. owed to the defendant, amounted to the exact sum of 1 ,000 dollars. That . S. was too poor to retain counsel to carry on his suit, and to obtain the testimony of some of the witnesses. That he, on the 21st of April, 1815, confessed judgment on the bond to the defendant, and an execution was issued, on which personal property was taken and sold, to the amount of 125 dollars and 77 cents, which the de- fendant credited & S., and suffered *S'. S. to use the property, out of compassion. That the defendant directed the sheriff [*514] to *levy on the farm in question, which he refused to do without indemnity, and the defendant sued him for a false return ; that the defendant, afterwards, brought an action of ejectment, which was stayed by an injunction in this cause ; and the defendant then sought to foreclose the mortgage by advertising a sale under the power. That S. S. was fully competent when he gave the bond and mortgage, and exe- cuted them with full knowledge and understanding, and retained his faculties until his death, &c. About thirty witnesses were examined on each side, and a great mass of evidence taken in the cause, some of which was contradictory. The material facts proved, are sufficiently stated by the Court. n _Junt 23, 24, The cause was argued in June last, by Riggs for the 2o, 26, 27, and p] amt jff s . an( j j-jy /%,//{$ an d Baldwin for the defendant. September 28. The cause stood over for consideration until this day. THE CHANCEJ LOR. The plaintiff Catharine seeks to set aside, as void, the mortgage and judgment given to the de- fendant by her father, Simon Swaim ; but if either of them were to be regarded as valid liens, she then prays that an 396 CASES IN CHANCERY. 514 acco/mt may be taken of what is due upon such lien, and 1818. that she may be let in to redeem. s_*~\^^ She rests her claim to set aside the mortgage, &c. on her PF.RIN-E title, as owner of the land, under a deed from her father of Dl ^ y the 14th of November, 1794. The bill was originally against him, as well as Dunn, the mortgagee : but Swaim dying before the answers came in, it was admitted on the part of the present defendant, that the plaintiff Catharine was his only child and heir at law. Her title to the land, subject to the encumbrance, is indisputable. She inherits a title to it as heir, if she had not, before, a title to it by deed. The defendant holds a bond and mortgage executed to him by Simon Swaim, in February, 1814, for 1,000 dollars, *and the main question is, whether that mortgage be a valid [ * 515 lien on the lands claimed by the plaintiff. The judgment which the defendant afterwards obtained, was for the same mortgage debt, and was confessed, in order to facilitate the recovery, and it may be placed out of view in respect to the present inquiry. 1. The first point is, whether the plaintiff Catharine had, at the time the mortgage was taken, a valid title to the land, under her deed of 1794, so as to defeat the claim under that mortgage. The deed of 1794 was executed on the day that Simon Swaim married his second wife, Dorothy, and it was executed a short time previous to the marriage. It was a voluntary conveyance, without any valuablr consideration ; it was con- cealed from the wife, and its object was to cut off her claim for dower, if she should survhe her husband. This deed, as I conclude from the case, was executed under the influence of the plaintiff Catharine and her hus- band, and it was not intended, by any of the parties in in- terest, to go into operation until the death of Swaim. It was not delivered to the daughter, but to one of the subscribing witnesses. It was intended to be, and for upwards of eighteen years afterwards continued to be, a transaction concealed from the world. The grantor continued in possession of the farm, and acted as owner, and was reputed, and had credit as owner, from the date of the deed in 1794, down to the year 1813, when the family quarrel first broke out, and the claim under the deed was first publicly advanced. It will not be necessary for me to go minutely through the volume of testimony which has been compiled in this case. A great part of it might have been spared, for it is idle and useless repetition. My impression is very strong, that the deed was of the character I have mentioned, and was in- .ended by all the parties concerned to be kept secret, *and [ * 516 ] ,397 516 CASES IN CHANGER*. 1818. was studiously concealed from the knowledge of the public s^~^-^^x from the time of its execution, down to 1813. I am equally FERINE clear in my conviction, that the deed was taken into the permanent possession of Catharine's husband, contrary to the intention, and without the consent of the grantor, and that he never intended to abandon the possession, or his right to the enjoyment of the farm. His object, in admitting his grandson into the possession, in 1812, was not that he was to occupy as tenant to Joseph and Catharine Ferine, or either of them, but that his grandson might assist him in the management of the farm, which he felt himself unable to manage, through the feebleness of age. His grandson came in under him, for that purpose, and he was admitted to share equally in the profits, as a compensation for his services. The subsequent efforts on the part of Joseph and Catharine P. and their son, to deprive Simon Swaim of the possession and use of the farm, and to separate him from the society and assistance of his wife, were violent, unnatural, and unjust. I think I do not use epithets that are not well warranted. The case strikes me in this light, after noticing the object and history of the deed, and after reading and comparing the testimony. A voluntary deed executed for such a purpose, and not delivered to the grantee, but kept concealed, and unac- companied with delivery of possession, cannot be set up against any third person dealing with Swaim, as owner. I state this as a clear and obvious principle of law and policy ; and it is perfectly immaterial whether rumors of the existence of the deed did or did not come to the knowledge of such third person. He was not bound to listen to the rumor, nor to give credit to such a deed. Lord Hardwicke considered. (1 Afk. 16.) that a continuance in possession, after a volun- tary deed, was a strong circumstance of fraud. The rule on this subject was correctly stated by Lord Rosslyn, in Bates [ * 517 1 v. Graves. (2 Vesey,jun. *292.) He says, " that where there is a conveyance of an estate, and possession is retained, towards all third persons, the person to whom it is conveyed will not be allowed to be considered as owner, nor will the ownership be devested." The Court of Chancery, according to the cases, (Pulvertoft v. Puhertoft, 18 Vesey, 84; Smith v. Garland, 2 Merrivale 1 s Rep. 123.) will not act in favor of, or help a voluntary conveyance, but will remain neutral in respect to it ; and surely this course will be adopted, when the conveyance has such a fraudulent stamp, and has been so kept and applied as the one in questipn. In this case, the claim under the voluntary conveyance was set up before the existence of the mortgage ; but vhen 398 CASES IN CHANCERY. 51"7 we consider the history of the deed, and the circumstances 1818. under which the claim has been made, the priority of the -^^~v^^ claim cannot give the deed any additional force, as respects FERINE third persons. The grantor never gave possession under the Dl ^ N deed, but, to the day of his death, he resisted the pretension under it, as unjust and fraudulent. Such a deed cannot be permitted to have any operation in this Court, as against the rights of the defendant. It was made, and kept concealed, and then finally acquired, and used for unjust or uncon- scientious purposes. The bond and mortgage ought to be tested by their own intrinsic merits, and not be suffered to be affected by that deed in any possible degree. 2. Putting the deed entirely out of view, the next question is, Upon what terms is the plaintiff Catharine, as heir at law, entitled to redeem ? A great deal oi testimony has been taken respecting the competency of Simon Sivaim to transact business, in February, 1814, when he gave the bond and mortgage to the defendant. My conclusion is, that he was of competent mind and mem- ory, and that he acted knowingly and understandingly, when he executed those instruments. There would be no safe dealing among men, and especially with men in the decline of life, if solemn contracts can *be annulled upon such loose * 518 J and vague opinion as is offered in this case, to prove a want of sanity in the mortgagor. The ordinary infirmities of age, and occasional acts of intemperance, are not sufficient to impeach a deed, when no unfair practices have been used, and especially when it is shown as a positive fact, that the party was competent, and understood himself well at the time. It is, next, urged, that a part of the consideration of the bond was illegal, and founded on the offence of mainte- nance, being for pecuniary assistance given, or pledged, for the costs of the lawsuits in which Simon Swaim was involved. The bond was given partly for moneys due to the defend- ant, and partly for assistance given to Swaim, to enable him to defend himself at law and equity, in the possession and use of his farm. The defendant agreed to pay 637 dollars 41 cents, towards costs of suits, in which Swaim was a party, and he gave a note for that sum to Mr. Wallis. But under the circumstances of the case, at the time, it was so far from being illegal, or amounting to the common law offence of maintenance, that it was a very meritorious and commendable act of charity. The situation of Swaim was one of great distress, and which naturally excited sympathy. He was deprived of credit and resources, and almost cut off from 399 518 CASES IN CHANCERY. 1818. tne common necessaries of life, by the efforts of his daughter N^^-N^-^^ and of her husband and son, to deprive him of his farm, and FERINE separate him from his wife. He might justly have taxed his DUNN daughter with wikindness ; and assistance, at such a crisis, by the son of his wife, was an act of benevolence that must have been most grateful to his feelings. To hold the as- sistance given by the defendant unlawful, would, as Mr. J. Buller observed when speaking of the harshness of the ancient doctrine of maintenance, be " repugnant to every honest feeling of the human heart." It is, accordingly, now [ * 519] held to be the law, (Hawk. PL C. tit. Maintenance, **. 20. 26 ; 4 Black. Com. 134.) that any one may lawfully give money to a poor man, to enable him to carry on his suit ; and that whoever is, in any way, of kin or affinity to ei- ther of the parties, may assist him, or apply to counsel to as- sist him. I shall, accordingly, declare, that the plaintiff cannot be let in to redeem, but on paying the sum due upon the bond and mortgage, and including therein, as a valid part of the consideration, the costs which the defendant has paid, or engaged to pay, for Swaim ; and upon paying, also, the costs of this suit, and the costs of the action of ejectment, brought by the defendant upon the mortgage ; and, also, the costs of he proceeding, under the power to sell, contained in the mortgage. In respect to the judgment and the execution, I shall perpetually enjoin any further proceeding thereon. A reference must, accordingly, be had, to compute the amount due on the bond and mortgage, after crediting the plaintiff with any payments shown to have been made thereon, or with any moneys collected upon the execution. Decree accordingly. 400 CASES IN CHANCERY. 519 1818. LEWIS LEWIS against LEWIS. LKWIS. On a bill, by a husband, for a divorce, the wife will not be allowed ali- mony, nor will the Court, on her motion, order the husband to ad- vance money to enable her to defend the suit, until she has, by her answer, disclosed the nature of her defence. BILL by the husband for a divorce. Burr, for the defendant, on petition by her, moved for Octob- *> : order on the husband for alimony, and for the advance *of money requisite to enable her to make her defence. [ * 520 l She stated, that she had three children, and had lived sep- arate and apart from the plaintiff since 1806, and charged him with cruel usage and with adultery. She had entered her appearance to the suit this day. THE CHANCELLOR denied both parts of the motion. He said, that it was necessary that the wife should previously disclose, by her answer, the nature of her defence ; for as yet it did not appear whether she intended to defend herself against the charge in the bill. And until the facts in the bill were put in issue, he did not incline to allow her alimony ; especially considering the long previous separation of the parties, and that she had not stated that she stood in need of any allowance. Motion denied, (a) (a) Vide Mix v. Mix, 1 Johns. Ch. Rep. 108. Denton v. Denton, id. 364. VOL. III. 51 401 520 CASES IN CHANCERY 1818. *^s~*+ GOODRICH v. PENDLETOH. October 6. [ * 521 ] GOODRICH, Administrator, against PENDLETON. [Referred to, 7 Stew. (N. J.) 492.] A plaintiff suing, in autre droit, is not responsible for costs, unless nuclei special circumstances. The defendant is not entitled to security for costs from a non-resident plaintiff, suing as administrator, especially after a plea. If the non-residence of the plaintiff appears on the face of the bill, and the defendant demurs, pleads, or takes any other step in the cause, or even prays for time to answer, it is a waiver of his right to security for costs. MOTION by the defendant, that the plaintiff, who resides in the state of Georgia, may give security for costs, in 500 dollars, or other sum, sufficient to indemnify the defendant, who will, necessarily, be put to very considerable expense in the defence of the suit. *Riggs and Boyd, contra, on the ground, 1. That the plaintiff sues as administrator; 2. That the defendant has already put in a plea of the statute of limitations, which has been argued and overruled, and the non-residence of the plaintiff appeared on the face of the bill. (Vide ante, p. 384. S. C.) THE CHANCELLOR. Both of the objections are well taken. The plaintiff who sues en autre droit, is not responsible for costs, if he fails, except under special circumstances ; and he ought not to be obliged to enter into personal security, in the first instance. The defendant has, moreover, waived his right to such security by his plea. The rule is, that if the non-residence of the plaintiff appears, on the bill, the de- fendant waives his title to security for costs, if he takes any step in the cause, or even prays time to answer. (2 Vcsey, 24. 10 Vesey,jun.2Sl.} In Long v. Tardy, (1 Johns. Ch. Rep. 202.) a demurrer by the defendant was held to be a waiver. Motion denied. 402 CASES IN CHANCERY. 521 1818. COOPER CO:PER and Wife against CLASON and others. o CLASON. Where a testator, by is will, devised as follows : " I do give, &c. to my daughter E. C during her separation from W. C., her present husband, one thousand dollars a year, which sum is hereby charged upon my real estate : " Held, that a voluntary separation of E. C. from her husband would not entitle her to the annuity, for she can establish no claim on her own violation of conjugal duty. Whether the separation, which is to give effect to the bequest, must not have existed at the time of the testator's death ? Qiwere. THIS cause came on for argument upon the amended bill, Octoier 7 which contained this averment : " That, immediately after the death of the said testator, your orators separated from each other, and lived separate and apart from each *other, [ * 522 1 for more than one year, on account of some unfortunate occurrences which your orators are advised, by their counsel, it is not necessary particularly to state ; but they expressly declare, that such separation did not take place with any view or design, whatever, of obtaining, or securing, thereby, the payment of the said annuity." Some of the defendants, in their answer, denied the fact of such separation, and others admitted it, but were ignorant of the cause. The words of the bill, on which the plaintiffs relied, were as follows : " I do give and bequeath to my daughter Eliza Cooper, during her separation from William Cooper, her present husband, 1,000 dollars a year, which sum is hereby charged upon my real estate." The will was dated the 26th of April, 1810, and the plaintiffs then lived separate ; they afterwards came together, and lived and cohabited together, until after the death of the testator. H. Sedgwick, for plaintiffs. Robinson, Bristed, and'Jm/, for defendants. THE CHANCELLOR said, the case was not essentially different from what it was when presented in June last, (a) Whether the separation must not have existed at the testa- tor's death, to give effect to the annuity, need not be consid- ered, though, probably, that ground would be decisive. But the wife must show, at least, an involuntary separation on her (a) Vide S. C. ante p. 382. 403 522 CASES IN CHANCERY. part, to entitle her to the annuity. It cannot be applied ( and that he would do every needful and proper act to give it validity, appears to be a strange proposition, if not a legal solecism. We contend, that the doctrine of the Court of Equity on this subject is, that the only method by which the ivill of a feme covert of her real estate can be made effectual, even in equity, in favor of a volunteer, is by her conveying her estate to a third person, previous to her marriage, in trust, for such person as she shall, by her will, made during coverture, appoint; or, by raising a use, and reserving to herself a power over it, to be effectuated by such will. (Peacock v. Monk, 2 Vesey, 190.) The counsel for the plaintiff, however, suppose, that the opinion of Lord Uardwicke in Peacock v. MonJc, has been overruled by the subsequent cases of Wright v. Enghfield, and Rippon v. Doweling. In the first-mentioned case, and in Wright v. Cadogan, the legal estate was in trustees, to whom it had been conveyed by the father of the feme covert who made the will. The equitable title descended on her while she was a widow. Before her second marriage, the agree- ment was made, upon the validity of which her will, made during coverture, depended. By that will she devised her equitable estate in the premises to her husband for life, re- * 529 ] mainder to the sons of the marriage in tail *male, remainder to the daughters of the marriage in tail general. The bill was brought by the heir at law to have a conveyance of the legal estate from the trustees, who filed a cross-bill for di rections to whom they should convey. In that case, the feme could not convey the estate to trustees, as that had already been done by her father. Any attempt to make such a conveyance would have amounted merely to a declaration of trust ; and it was held, that the articles before marriage, and her will, afterwards, were equivalent to such declaration. (Per LordCh. Northington, Ambler, 473.) Again; the pro- vision made in that case, by the will of the feme covert, for children, was deemed a meritorious consideration, so that the devisees were not mere volunteers ; and that seems to be the ground on which the devise was supported. In the present case, there is no such consideration, and the plaintiff is a mere volunteer. What further distinguishes that case from the present is, that there the heir at law sought the aid of the Court, to obtain the legal title. Here the plaintiff seeks the aid of the Court to take the legal title from the heirs at law, in whom it is vested. 408 CASES IN CHANCERY. 529 Lord Northington (Ambler, 473.) refers to the case of 1818. Bramhatt v. Hall, decided by himself a short time before ; ^^^^-^^ and it appear, 1 ?, that the decision in that case was against the BRADISH will, for want of a meritorious consideration. (Ambler, 467.) GIBBS In the report of the case on appeal, Wright v. Cadogan and others, the counsel in favor of the will urge the fact of a previous conveyance, and the meritorious consideration, in support of the devise, showing their opinion to be, that it could not be supported without such considerations. As to the observation of Lord Kenyan, in Doe v. Staple, (2 Term Rep. 695.) on what was said by Lord Hardwicke, in Peacock v. Monk, it is apparent, that either Lord Kenyan's observations have been misunderstood, and misreported, or that his lordship mistook the facts of the case to *which he [ * 530 j referred. The heir at law, in that case, was not decreed to convey ; for the legal estate was, at the time, outstanding in trustees, and the bill was filed by the heir to obtain a con- veyance from the trustees. And Justice Buller, sitting in chancery, in noticing the case referred to, points out the mistake of Lord Kenyon. (2 Bro. C. C. 386.) The case, therefore, of Wright v. Englejield, or Wright . v. Cadogan, does not impair the doctrine of Lord Hardwicke in Peacock v. Monk, as applicable to the case now before the Court. In the case of Rippon v. Dowding, so much relied on by the plaintiff's counsel, the husband, before marriage, gave his intended wife a bond, empowering her, during coverture, to dispose of her real estate, by deed, or by will ; and during coverture, she made a will devising the estate to her younger children, who, afterwards, filed a bill against the heir at law for a conveyance, and obtained a decree. Lord Camden ob- served, it was a mistake to call it a question between volun- teers ; that the wife might have compelled the husband to join with her in a conveyance by fine, during coverture. There was, also, in that case, a meritorious consideration, the provision for younger children ; and stress is laid on the power to dispose by deed, as taking the case out of the general rule as to a power of disposition by a feme covert, by will only. In the case of Barnes v. Erwin and others, (2 Dallas, 199.) there was an ante-nuptial agreement between the husband ;md wife, and a trustee for her ; and she was empowered to dispose of her real estate by deed or will. There were no children by the marriage. The wife, during coverture, made a will, authorizing the executors to sell the estate, and dc vised the proceeds in legacies, one of which was to the heir at law, and the residue was given to her nepheivs, ivho were her nearest relations, which furnished the meritorious consid- VOL III. 52 409 531* CASES IN CHANCERY. 1818. eration to sustain the equity. The chief ju&tice *makes it \^r-^~^, one of the grounds of his judgment, " that the devise was BRADISH not to the husband, nor to his relations, but among the ivtfe's GIBBS nearest of kin ; " clearly implying that a devise to the husband could not have been supported. The case of Doe v. Staple, (2 Term Rep. 684.) which has also been cited, came, afterwards, into the Court of Chancery for decision, under the name of Hodsden v. Lloyd, (2 Bro. C. C. 534.) and in delivering his judgment, Lord Thurlow stated the rule to be, " that with regard to chattels, both real and personal, the husband, by contract anterior to marriage, resting only in agreement, may authorize his wife to make a will ; but in order to make a will of real estate, she must part with the legal estate to trustees, for, by agree- ment, while resting in agreement only, he cannot bind the heirs, but can only bind himself, and the legal estate ought to be conveyed by legal conveyances." In Fettiplace v. Gorges, (3 Bro. C. C.8. 10.) Lord Chancellor Thurloiv says, " The case of Peacock v. Monk supposes that there may be such an agreement as will bind the heir ;" " although when the wife makes a voluntary disposition against the heir, it cannot be carried into execution. But with respect to her personal property, her disposition is good." It is said, in Milnes v. Busk, (2 Vesey,jun. 488.) that a disposition, by a feme covert, in favor of a husband, will not be countenanced by a Court of equity, on account of the undue influence to which she is exposed. It would seem to be the opinion of Mr. Maddock, in his late work, (1 Madd. Ch. 374, 5.) that the true doctrine on this subject is contained in the cases of Peacock v. Monk, Hodsden v. Lloyd, and Fettiplace v. Gorges, as applicable to cases like the present ; and that the cases of Wright v. Englefcld, or Wright v. Cadogan, and Rippon v. Douding, are only exceptions to the rule founded on the peculiar cir- cumstances of the case, and supported by a meritorious con- sideration. * 532 ] *The plaintiff's title is defective on another ground, though it is rather a formal one. As the plaintiff claims under a will, said to be made by his wife, pursuant to a power, until this will is exhibited and proved as such, nothing can be claimed under it. (I Madd. Ch. 331. 2 Atk. 48. 3-4^.156160. 162.) Wells, in reply, insisted, that the plaintiff, in this case, was not a volunteer ; and that marriage was as much a valuable consideration as money. The appointee does not take u*der the power, but under the deed, or instrument creating the 410 CASES IN CHANCERY. 532 power. In the language of the books, he is in under the original deed. (4 Cruise's Dig. 233 235.) The deed was the ante-nuptial contract. It is, in effect, the same as if there BKADISH had been a technical and formal marriage settlement, by GIBBS which it is admitted, that Miss G. might have limited her whole estate to her husband, in case of her death without children. The marriage would be the valuable consideration, on the part of the husband, though he made no settlement on his wife. In both cases, he must claim under a contract made in contemplation of marriage, the consummation of which forms a valuable consideration, and excludes the notion of his being a volunteer. In Rippon \. Dowding, the parties claiming the benefit of the appointment under the marriage settlement, were called by the counsel volunteers ; but Lord Camdcn said it was " a mistake to call them volunteers." Even Lord Hardwicke, in Peacock v. Monk, when express ing his doubts whether a mere agreement between the husband and wife, before marriage, by which the wife was to dispose of her real estate, would bind the heir, suggests, that there was one way in which such an agreement might bind the heir. If, says he, the agreement would enable the wife to come into a Court of equity, after marriage, to compel the husband to carry it into effect, by a proper conveyance, " the question might be, *whether the heir at law is not to be bound [ * 533 * by the consequence of that agreement." This suggestion of Lord PI. is adopted by Lord Camden, in Rippon v. Dowding, and who rests his opinion on that very ground. " The agree- ment," says he, " was made on marriage, and the wife might have compelled her husband to join with her in a fine." And Chief Justice M'Kcan, in Barnes's Lessee v. Irwin, says the same thing ; and he adds that it was an agreement fair and lawful, and founded on a valuable and meritorious con sideration. This is, then, such an agreement as a Court of equity will enforce. The plaintiff, however, is entitled to the convey- ance, not only on the ground of a valuable consideration, but, also, of a meritorious consideration. The counsel for the defendant seems to suppose, that the consideration of an ap- pointment can be meritorious only where children, or rela- tions, at least, are its objects. Yet, in judgment of law, the husband is nearest of kin to his wife. Cases may arise which may excite suspicion of improper influence; as where a wife, in the execution of a power, should devise the whole of her estate to hdr husband, to the exclusion of her children ; and it is to such cases that the observations of Lord Louphborouph* B . . in Milnes v. Busk, are to be applied ; and which were in- tended to impose some qualification on the doctrine laid 411 533 CASES IN CHANCERY. 1818. down by the counsel in argument, that afene covert, with & v_^~ N/ ^^x power reserved over her separate property, was to be ccn- BKADISH sidered, in every respect, as a feme sole. Meritorious con- G ,B' BS- siderations are not known in law, as forming a distinct class from those which are valuable, or which arise from natural love or affection. They can mean nothing more than that they are such as are, in themselves, just and agreeable to moral sense, and as having a natural fitness and propriety. Can any thing be more fit or proper than that a wife should provide for a husband whom she loves, and whom her death might, other- J * 534 ] wise, leave destitute, when *there are no children to interfere with the exercise of her undivided affection ? In Bramhall v. Hall, in which Lord Northington says, (Wright v. Englefield, Amb. 473.) " he would not grant the relief, because there was no meritorious consideration," the wife had made pro- vision for an illegitimate child, at the expense of the lawful heir. In Wright \. Cadogan, the husband took, under the wife's appointment, a life estate, and no objection was made to it, on the ground that the consideration was not meritori- ous. The law on this subject is, in truth, broad and unqual- ified : Whoever is capable of taking an estate by a common law conveyance, may be an appointee. (4 Cruise's Dig. 241. s. 33.) If the husband is an exception to this rule, it ought clearly to be shown by some adjudged case ; arguments of counsel, or inferences from the dicta of judges, afford too slender grounds for the exclusion of a whole class of persons from rights to which they would otherwise be entitled. There is nothing in the work of Mr. Maddock referred to (1 Madd. Eq. 374, 375.) which can justify the conclusion drawn by the opposite counsel ; when, in his note, he refers to Hodsden v. Lloyd, and Fettiplace v. Gorges, he adds, but see Rippon v. Dowding, &c. And Mr. Powell, in his notes to Wood's Conveyancing, (vol. 2. p. 6. Dub. ed.) considers the case of Rippon v. Dowding as having settled the law on the subject. Again ; the ante-nuptial contract, in this case, was executed in duplicate, by each of the parties, under seal. It is, there- fore, technically, a deed. Why is it not. therefore, equivalent to a covenant on the part of Miss G., with the consent of her intended husband, to stand seised of her real estate, to such uses, as she should, by her last will, appoint? It is admitted, that the will or appointment of a feme covert of her real estate would be effectual, even in favor of a volunteer, if, previous to her marriage, a use had been raised, over which she had reserved a power. Now, to raise such a use, it is not requi- * 535 ] site that the estate should *be conveyed to a third person. It is equally raised by a covenant to stand seised of the prop- erty t<> such uses as she might, during coverture, appoint. 412 CASES IN CHANCERY. 53S In Doe v. Staples, the agreement before marriage was not 1818. under seal, for which reason Lord Kenyan says, it could not ** -^~ *^ be considered as a covenant to stand seised to uses ; leaving '^RADISH it to be inferred, that if it had been a deed, it might be such ,. ^ a covenant. So Chief Justice M'Kean, in the case cited from Dallas, says, Why may not the wife's articles of agreement, or deed of 1774, be considered as a covenant to stand seised of her real estate, for she was therein specially mentioned, and also for the use of her will or appointment ? Marriage, which tends to join blood, is one of the considerations held sufficient to validate such a conveyance. It has been suggested, that as the will does not refer to the power, it is not valid. If this objection deserves a serious answer, it is sufficient to refer to the case of Andrews v. Emmot, (2 Bro. C. C. 303.) and the opinion of Heath, J., in Bucldand v. Barton, (2 H. Bl. 139. 6 Co. 17. b. 8 Term Rep. 118.) As to the formal objection, it is enough to say, that the will is stated in the pleadings, and made an exhibit in the cause, with the consent of the solicitors of the parties, that it should be read at the hearing, in the same manner as if it had been duly proved. The objection that the plaintiff is claiming the benefit of his own covenant against the heirs, who are third persons, cannot deserve a moment's consideration; if the reason, nature, and object of the thing is understood. The same objection might equally be made, if trustees had been interposed. THE CHANCELLOR. The question in this case is, whether the plaintiff, by reason of the ante-nuptial agreement, and the subsequent will, is entitled to the aid of this Court, to ^compel the defendants, who are the heirs at law of the wife, [ * 53 G ] and upon whom the legal title to the premises descended, to convey the same to him. I shall confine myself to the consideration of this impor- tant point; and as my conclusion will be in favor of the plaintiff, the discussion of the subordinate points will become unnecessary. This is a dry question, resting entirely on the technical rules of equitable jurisprudence ; and I shall be obliged to examine minutely the authorities which are applicable to the subject, and shall endeavor to extract from them the true principle which ought to govern the case. It is settled that a. feme covert may execute by will, in favor A feme coven of her husband, a power given to her while sole over her j^^hTfevo? real estate. of her husband a power giver to her, while sole, over her real estate 413 536 CASES IN CHANCERY. 1818. I n Rich v - Beaumont, (3 Bro. P. C. 308.) a treaty of ^r-\^^^x marriage was concluded between the appellant and his in- BRADISH tended wife. She then conveyed an estate of which she GIBBS was se i se< i, in trust, and with the declared intent to suffer a recovery, and that the recovery was to enure to the uses and upon the trusts declared ; which were, among others, that the wife should receive the rents and profits for her sole and separate use, for life, exclusive of her husband ; and if she should leave issue, then upon trust, that the trustees should convey to such issue, according to her direction by deed or will, and in default ,of issue, and in case she survived her mother, then to such uses and persons as she by deed or will should appoint. The recovery was suffered, and the mar- riage shortly after took place : the wife, during coverture, had a son, and survived her mother, and made her will, in which, among other dispositions, she gave to her only son the estate, with a reservation in favor of her husband of one half of the profits for life ; she added, that if her son should die during his minority, without lawful issue, that she then devised all her estate to her husband, the appellant, in fee, and she * 537 ] *directed her trustees to convey her trust estate to such uses and purposes as were named in her will. She also gave all her personal estate to her husband, and made him the sole executor, arid died. Her son died in infancy, without issue, and the appellant, apprehending that he was, by the will, entitled in equity to the fee of the estate, and to have a conveyance of the legal estate from the trustees, filed his bill, in 1724, against the heirs of his wife, and against the trustees, praying for a con- veyance of the legal estate. Lord Chancellor King dismissed the bill on the ground that the appellant's remedy, if any, was at law. On appeal from this decree, it was a point assumed^ that if the will was a good execution of the power, it Was well executed in favor of the husband. The objection was, that the power was not well executed by will, because a feme covert's will of land was, by law void. The decree was re- versed, and an order made that the Court of Chancery take the opinion of the K. B., whether the will was a good ap- pointment of the estate. It appears that the Court of Chancery ordered a case to be settled for the opinion of the K. B., and we have no further report of the case. But in Hearh v. Greenbank, (1 Vesey, 305.) and in Peacock v. Monk, (2 Vesey, 190.) Lord Hardwicke cited the case, to prove that a feme covert might execute a power ; and it was stated by the counsel, arguendo, in Marlborough v. Godolphin, (% Vesey 414 CASES IN CHANCERY. 531 64.) that in the K. B., where the case was sent, it was held 1818. a. good appointment. v..** -^~**~> Though this case was, by a very unusual step, referred to BRADISH a Court of law, yet we must understand the decision to have GIBBS been, that the will was a good execution of the power in equity. The case was depending before an equity tribunal, to be decided upon equity principles ; and Lord Hardwicke, in referring to that case, says, that the point had been so determined " in this Court." At law, *such a will is void ; [ * 538 ] and in the very case of Peacock v. Monk, we find a decision of Ch. J. Willes cited, in which it was held, after a consul- tation with the other judges, that the husband could not give power to his wife to make a will of land. This determi- nation meant, and it could only mean, that the devise of a feme covert, though made in pursuance of a power, was, equally with a will made without such power, void in a Court of law. This early case may, therefore, I apprehend, be relied on as a decisive authority in favor of the equitable title of the husband under his wife's will, executed in pursuance of a power created previous to her marriage, and that such a title may be enforced in equity against the heirs at law of the wife. The idea, that the husband is, in such a case, to be deemed a volunteer, seems to be without foundation ; and though it was mentioned by the counsel for the respondents, the de- cision of the Court of Appeals shows that the objection did not apply. But, in that case, the estate of the wife had been conveyed previous to her marriage to trustees, in trust for such persons as she should, by deed or will, appoint. The case is not, therefore, in all respects applicable to the one before me; and the doctrine in Peacock v. Monk is supposed to be fatal to the present claim. The principal question in Peacock v. Monk (2 Vesey, 190.) was, as to the validity of the wife's will of land, pur- chased by her during the coverture ; and the observations of Lord Hardwicke, on which great reliance is placed, were mere dicta, not necessarily arising out of that case, and so they were considered, afterwards, in the case which I shall presently mention, before Lord Northington. Lord Hard- u-icke admitted, that " a woman, on her marriage, may take such a method as to prevent her real estate from going to her heir ; but he doubted whether it could be done but either by way of trust, or of power over a use. Suppose, he says, a woman having a real estate before *marriage, and either be- [ fore or after marriage, by a proper conveyance, (if after 415 539 CASES IN CHANCERY. 1818. marriage it must be by fine,) conveys to trustees, in trust foi \^-^>~*^s herself during coverture, to her separate use, and then in BRADISH trust for such person as she by deed or will should appoint, GIBBS. an d in default of appointment, to her heirs ; she marries, arid makes such an appointment. It is a good declaration of the trust, and this Court will support that trust. So it may be done by her, by way of power over a use, as if she conveyed the estate to the use of herself for life, remainder to the use of such person as she by writing, &c., should appoint, and in default of such appointment, to her own use. This is a power reserved to her, and a /me covert can execute a power. But can a feme covert do this, so as to bar her heir, by a bare agreement, without doing any thing to alter the nature of the estate? Can a woman, having a real estate before mar- riage, in consideration of that marriage, enter into an agree- ment with her husband, that she may, by writing or by will, dispose of her real estate ? This rests in agreement, and if she does it, though it may bind her husband from being tenant by the courtesy, that arises from his own agreement ; but what is that to her heir? She is afejne covert, under the disability of coverture, at the time of the act done ; and if she attempts to make a will, the instrument is invalid. The only question that could arise would be, whether such an agreement be- tween her and her husband would not give her a right to come into equity after marriage, to compel her husband to carry it into execution, and to join with her in a fine to settle the estate on such trust, or to such and such uses. And if it is such an agreement as the Court would decree to be carried further into execution by a proper conveyance, then the question may be, whether the heir is not to be bound by the consequences of that agreement." It is then admitted, in this case, that a wife's will of land [ * 540 ] may be good in equity, by way of execution of a *power, provided the wife, previous to the marriage, conveyed the estate in trust, for purposes to be declared during her cover- ture, by deed or will ; or, provided she previously raised r use, and reserved to herself a power over it. Lord Hard wicke only suggests doubts whether a mere ante-nuptia agreement between husband and wife, while the legal estate remains in her, can give her such a power of disposition To enable a during coverture. It appears to me, that this doubt turns disposc^'of her mor e upon a point of technical formality, than upon any solid real estate, in ground of distinction, or real principle adapted to the interest necessary 'Mlat of families, or apparent to the good sense .and understanding the legal estate should be vested in trustees ; but a mere agreement entered into before marriage with her intended 1ms- bawl, that she should have power to dispose of her real estate, during coverture, will enabh. her to do so. 416 CASES IN CHANCERY. 540 of mankind. Why should not the heir himself, as well as 1818 the formal trustee standing behind him, be bound to give effect ^*~^-^s to the power of appointment reserved to the wife ? BRADISH The case of Bramhall v. Hall (Amb. 467.) first brought u y - up the question upon such an agreement, without any con- veyance by the wife. Articles were entered into between B. and his intended wife, who was then a widow, seised of an estate in fee, by which he covenanted that she should have power, by deed or will, to dispose of her estate, after her decease, to any person whatsoever, and that he would do any act to confirm it. After marriage, the wife, by lease and release, reciting the articles, conveyed her estate to trustees, after her death, to the use of her natural son for life, with remainders over. Lord Northington held, that the wife having the legal estate in her, the conveyance was not good to pass the estate, either as a conveyance, or an execution of the power. This short and very imperfect note of the case, is all we have in the report, and it would seem from it, that the chan- cellor put the objection on the ground of the legal estate not having been conveyed in trust, or to uses. But in the next case that followed it, and decided only a few months after- wards, Lord Northington, referring to this *case, says he was [ * 541 ] of opinion, that there was no meritorious consideration. It was upon this ground, then, that the case was decided, and so it has been viewed by Mr. Sugden, in his accurate " Trea- tise of Powers," (p. 151.) It may then be considered as an authority in favor of an appointment by a. feme covert resting upon an ante-nuptial agreement, and without having, prior to the marriage, parted with the legal estate. If the power had been void, the chancellor would not have recurred to the want of merit, (for so I understand him,) in respect to the object of the appointment or bounty. If the husband had been the grantee, no such objection could have been made, according to the case before Lord Kins' ; and that case, in o o * connection with this, would seem to contain all the principles requisite to support the present bill. But in the case of Wright v. Englefidd, (Amb. 468 ; 6 Bro. P. C. 156. S. C.) which was decided in the same year, and which is more generally known and cited by the name of Wright v. Cadogan, Lord Northington gave the subject a deeper investigation. In this case, marriage articles were entered into between the intended husband and wife ; and the instrument recited the intended marriage, and that it was agreed that the wife's existing estate, which was described to be a copyhold estate of inheritance, and a rent charge for life, together with all VOL. III. 53 417 541 CASES IN CHANCERY. 1818. such estate, real or personal, as might descend or come to v^-s,-*^ her during coverture, should be to her separate use, and to BRADISH be applied as she, by deed or will, should direct. The hus- GIBBS. band covenanted with S. and J5., who were also parties to the same articles of marriage, that her property should be so subject to her disposition, and that he would execute any deed to secure the same to her separate application and use. A moiety of a trust inheritance, of which the legal estate was then outstanding in the defendants as trustees, and of which she had, when the marriage articles were made, a trust of the reversion in fee, descended to her after the marriage, and [ * 542 ] the case *says, that she then became " entitled in fee simple possession " to her rnoiety, subject to the performance of certain trusts. She, afterwards, made her will, and under the power reserved, and to which she referred, she devised her moiety of the inheritance to trustees, to the use of her husband for life, remainder to the sons of the marriage in tail male, remainder to the daughters of the marriage in tail general, and in default of such issue, to her own right heirs. The plaintiff was her only son by a former husband, and the question was between him as her heir at law, and the second husband, and his surviving daughters, who all claimed by ap- pointment under the will and the marriage articles. He filed the bill to have a conveyance from the trustees, and they filed a cross-bill for directions. Lord Northington held, that the will, in connection with the articles, was a good and valid appointment, in respect to the husband, as well as in respect to his children ; and though he is made to say, according to the case in Ambler, that the provision, being for children, was meritorious, yet by the de- cree, the provisions in the will were equally carried into effect in favor of the husband. He said, that "if a woman, before marriage, retains a power over a legal estate, to be exercised by way of execution of a power, she may do it." The heir carried an appeal to the House of Lords, on the ground that the appointment was void as against him, and his counsel insisted, that the only mode of enabling a feme covert to dispose of her inheritance, was by a conveyance be- fore marriage, to uses or trusts, reserving such a power, or else by fine after marriage, with a deed to lead the uses of it, reserving such power to her over the inheritance. They said, that unless one of those methods was taken, her will of real estate was void, and could not bind her heirs, though it bind the husband who was a party to the marriage articles ; that in this case, the power rested only in covenant, | * 543 ] or upon articles between the husband and wife, without *any estate vested in trustees, out of which an appointment by 418 CASES IN CHANCERY. 51 virtue of the power was to enure. The counsel for the le- 1818. spondents, on the other hand, urged, that as the lega estate ^^^^^^ was already in trustees, any formal conveyance would have BRADISH oeen a mere declaration of trust, and the reasonableness of GIBBS. the provision in the will was also urged. The decree was affirmed, and from the argument of the appellant's counsel, (who were no less men than De Grey and Yorke,) it is evident that they did not consider this case as satisfying the rule in Peacock v. Monk, requiring the wife before marriage to convey the estate in trust, or to use, with a power reserved to direct the uses or trusts. Lord Hard- wicke clearly alluded to the solemn act and deed of the wife herself altering her estate before marriage, and by her own free act, raising uses and trusts for future purposes, as being requisite to sustain the power, and so did the distinguished counsel in the above case. Here was no such act of hers, and nothing but simple marriage articles between her and her husband as in the present case ; and if they be sufficient 'in all cases in which the wife is seised of any trust, inherit- ancg or reversion, to support her will during coverture, the farce of the objection is gone. I consider this case, then, as containing the principle, that equity will carry into effect the will of a. feme covert, disposing of her real estate in favor of her husband, and to relatives who are not her heirs at law, provided that will be in pursuance of a power reserved to her in and by the ante-nuptial agreement with her husband. It is said, however, that the conveyance of her estate in re- version would have been only a mere declaration of trust, and, therefore, useless ; but might she not have transferred her interest, equally as if it had been a legal estate, to another person, subject to such uses as she should, afterwards, during coverture, by deed or will declare ? She might have done some act varying her equitable interest, and creating new trusts, so as to have satisfied the scruples in *t.he case of [ * 544 Peacock v. Monk. But this was not done or required in the above case ; and, I think, Lord Kenyan was justified in re- ferring to that case, (see Doe v. Staple, 2 Term Hep. 695.) as evidence that the doubts of Lord Hardwicke had been removed, and that a bare agreement by marriage articles was sufficient to support the will even against the heir ; and Mr. Sugden (Treatise of Powers, p. 151.) cites it as evidence of the same fact. It was said, in the argument of the present case, that Lord Kenyan must have misunderstood the report of the case of Wright v. Cadogan. I should doubt that ex ceedingly. He was very familiar with equity principles and practice, and probably understood the case much better than those who have only the printed reports as a guide ; for he 419 544 CASES IN CHANCERY 1818. na d been several years at the bar when that case was arguea \ ^^v-^x and decided in the House of Lords, and he speaks of the BRADISH very able discussion it received in that house. GIBBS. The case f Rippon v. Dotvding (Amb. 565.) puts the question completely at rest. In that case, a widow was seised of a freehold estate, and previous to her second marriage ; her husband gave a bond empowering her to dispose of her freehold estate, by deed or will, notwithstanding the cov- erture. The wife, afterwards, by will, gave her estate to her younger children in fee, who exhibited their bill against the heir to have a conveyance of the estate. The case of Wright v. Lord Cadogan was cited as being in point for the prin- ciple there determined, which was the performance of the marriage agreement as against the heir. The other side contended, that the case of Wright v. Cadogan differed from the other, inasmuch as in the one case the legal interest was in trustees, and in the other it remained in the wife. Lord Camden held, that though the two cases differed, in respect that the wife had only an equitable interest in the one, and the legal interest in the other, yet the principle of * 515 j determination was the same in both ; and that as *the Court decreed performance of the agreement in Wright v. Cadogan, which was a trust interest, it will do so in this, which is the case of a legal interest. He, accordingly, decreed a conveyance. This decision was made in 1769, and it has never been directly questioned, and certainly not overruled. In Compton v. Collinson, (2 Bro. Ch. Rep. 383, 384, 385.) it was admitted by the counsel for the plaintiff, that if there be an agreement, prior to marriage and in consideration of marriage, that the wife might dispose of her own property, it would have been held good in equity, and the wife would have been competent to have bound herself as to those rights which the marriage gave her, against the heir of the husband. The counsel on the other side, and who represented the heir at law, also admitted, that a covenant before marriage would have given the wife a power to dispose by will. Such language of counsel on each side is very good evidence of the general sense of JVestminster Hall on this point of law, and that the cases in Ambler were received as decisive authority. Nor do I apprehend that there is any thing in Hodgden v. Lloyd, (2 Bro. Ch. Rep. 534.) to weaken the force of this conclusion. In that case, marriage articles were entered into, by which the real estate of the wife was to be settled to the joint use of the husband and wife, and upon the survivor, for life ; and that if she survived him, her estate was to be settled to hei 420 CASES IN CHANCERY. 3-1 own use, and if not, the estate was to be at her own disposal. 1618. On the same day, and previous to the marriage, she made v^^^s/-^. her will, and gave her intended husband all her estate, ab- BRADISM solutely. and made him sole executor. The marriage took J ' 01 T i I GIBBS. place, afterwards, on the same day. bhe died without re- voking or altering the will, and the husband took possession. The question arose between the devisee of the husband and the wife's heir at law. Lord TAwr/oiw held, that articles resting in agreement *gave the husband an equitable estate [ * 5.16 for life ; but that the will was revoked by the subsequent mar- riage. The great point was, whether the will was a good execution of the power. The chancellor said the will was not well made under the power, because the power was to make a will after marriage ; but, in the course of his opinion, there is this observation thrown out, that, " with regard to chattels, the husband, by contract anterior to the marriage, resting only in agreement, could authorize her to make a will ; but in order to make a will of real estate, he must part with the legal estate to trustees, by agreement ; whilst resting in agreement .only, he cannot bind the heir." I believe that Acre is a mistake in the report ; for the observation is directly against the decision in Rippon v. Djwding, which was cited upon the argument, and not ques- tioned by the counsel for the heir at law. They put the objection to the will, on the ground of a revocation by mar- riage, and that it was not in pursuance of the power, because the power referred to an act q/er marriage. Lord Thurlow repeats the same argument ; whereas, if the agreement was insufficient to support a will after marriage, by way of ap- pointment, the case would have been put upon that ground, and have cut short much discussion. Lord Thurlow did not so much as notice the case of Rippon v. Dow ding, which was cited upon the argument, and which he certainly would have done, out of self-respect, at least, if he had meant to question, and much more to overrule it. It ought farther to be observed, that the counsel on each side, in this case, also cited the decision in Wright v. Cadogan, as proving that an agreement before marriage would support a subsequent dis- position ; and the attorney-general (who was afterwards Lord Alvanley) considered it as resolving the doubt of Lord ILtrdwicke, whether a mere agreement, or articles executory, would operate as a conveyance. He stated the rule to be, that there was no distinction in that Court, as to the power of a *feme covert, whether the estate be a legal or a trust [ * 547 estate, and that articles would convey to her a power of disposing of either during her marriage. 547 CASES IN CHANCERY. 1818. The most accurate writers who have discussed this subject, N-X^N,^-^^ such as Sugden, (Treatise of Powers, 151, 152.) Powell, BRADISH (Wood's Conveyancing, by Poivett, vol. 2. p. 6.) andAtherley, GIBBS. (Treatise on Marriage Settlements, p. 336, 7.) consider the doubts of Lord Hardwicke as clearly resolved, or removed, by the subsequent cases which we have been considering. They all unite in opinion, that it is not now necessary that the legal estate should be vested in any indifferent person, as a trustee ; and that if the intended husband should covenant or agree, that the wife might dispose of her estate, it would enable her to do so in equity. " By a mere agreement," says one of them, "when entered into before marriage, a feme covert may dispose, in equity, of her real estate." If such writers are not to be cited as authority, (though Powell was much relied on in a Pennsylvania case,) they are at least good in evidence of the sense of Westminster Hall, and very conclusive evidence that the case of Rippon v. Dowding has never been shaken. The question raised in this case was also fully discussed by the Supreme Court of Pennsylvania; (2 Dallas^ 199; 1 Yeates's Hep. 221. S. C.) and the Court professed to decide the case before them upon the settled principles of the English Court of Chancery. The wife, in that case, before marriage, entered into articles of agreement with her husband and one J. W., by which it was agreed, that her estate should be for their joint use during coverture, and if she should survive him, the whole estate was to remain to her as if no marriage had taken place ; and that she should have power, by will, to dispose of the same *o such persons, and for such uses, as she should see fit. The husband covenanted with J. W. to suffer this power to [ * 548 ] be carried into effect. She ^married without having con- veyed the estate to trustees, and had no issue, and by will devised her estate to her nephews and nieces. The point was, whether the will was sufficient to bar the heir at law. It was held by all the judges, (and the Court then con- sisted of M'Kean, chief justice, Shippcn, Yeates, and Bradford. justices,) that the will operated as a good appointment under the articles, and that the heir was bound without any legal estate being vested in trustees. The cases of Wright v. Cc- dogan, and of Rippon v. Doivding, were considered as gov- erning the case and settling the law ; and the chief justice admitted, that the spirit of the former of those two decisions implied the same doctrine with the latter. The counsel for the plaintiff endeavored to take this case 422 CASES IN CHANCERY. 548 out of that of Rippon v. Dowding, on the ground, that the 1818. devisees there were not volunteers, and that the provision ^*^s-+^> there, for the younger children, was meritorious. BRADISH Two of the cases already examined, sustained the provision GIBBS for the husband ; and if further authority was wanting to show that a provision for him is deemed meritorious, and that he is not regarded as a volunteer, we have it in Sergeason v. Sealey. (2 Aik. 412.) In that case, a widow had a power, under former articles, of disposing of 4,000 pounds, by deed or will, executed in the presence of three witnesses, to any person she should appoint. Previous to her second marriage, she, by articles executed in the presence of two witnesses only, appoints the sum of 2,000 pounds, out of the 4,000 pounds, to be for the use and benefit of her intended husband. The remaining 2,000 pounds she made a voluntary disposition of by will, but did not execute it in the presence of three witnesses. Lord Hardwicke held, that the articles upon the second marriage was a good appointment within the power, and though it was a defective appointment, be- cause of two *witnesses only, yet the Court would supply the [ * 549 ] defect where it was executed for a valuable consideration. But as the appointment of the remaining 2,000 pounds was not for a valuable consideration, but only a voluntary dispo- sition, the defect in not pursuing the power was not to be aided ; and it was, accordingly, as to that last sum, deemed a void appointment. So, Lord Eldon, in Parks v. White, (11 Vesey, 222.) when speaking of the power of disposition of a feme covert over estates settled to her separate use, observed, that " the Court had no difficulty in supposing that a woman, having such an interest, might give it to her husband as well as to any one else. The cases never intended to forbid that ; and if he conducts himself well, I do not know that she can make a more worthy disposition ; though, certainly, the par- ticular act ought to be looked at with jealousy." Indeed, it is a clear point throughout the books, that a married woman, having a power, which is a right to limit a use, may appoint to her husband, in like manner as the husband may appoint to her. (The case mentioned by Crew, Ch. J., in Latch's Rep. 44. Haider v. Preston, 2 Wils. 400. Gilbert's Uses and Trusts by Sugden, 150. note.) In the case of the Meth- odist Episcopal Church v. Jaques,^ (decided in October, 1817,) t Ante, p. 77 in which the power of the wife, over her property, was largely discussed, it appeared, that the gifts to the husband had been constantly sustained ; and the only check to them suggested in the cases is, that they were to be more narrowly inspected, 423 549 CASES IN CHANCERY. 1818. on account of the danger of improper influence. If duty ^^~^~+^ made in pursuance of the power, and at the same time fairly BRADISH made, there is no pretence, in any of the cases, that a gift to GIBBS. * ne husband is not to be supported. There is no ground for the suggestion, that a husbana, who takes under a will founded on marriage articles like those in the present case, is a mere volunteer without consideration. [ * 550 ] The principle is well established, (Marlboraugh *v. Godvlphin, Where a per- 2 Vesey, 78.) that where a person takes by execution of a son takes by the i , i i ,1 .1 , / ,1 , rri execution of a power, he takes under the authority ot that power. Ine power, he takes meaning is, as Lord Hardwicke expresses it, that the person under the au- . i .1 / ,i i tiiority of that takes in the same manner as if the power and instrument ex- power, ecuting the power had been incorporated in one instrument. A husband, in i / 11,1 ,1 , i j i regard to a de- an d as ii all that was in the instrument executing had been vise to him, by expressed in that giving the power. Now, the marriage ar- 1ns wife, in exe- . \ c 11 ,, . P , , putionofapow- tides are founded on the consideration ol marriage, which is IT, is not a voi- a good and valuable consideration ; and the provision in the '"' Marriage is will is founded on the same consideration as if it had been a a good, valua- p ar t of the original ante-nuptial contract. The party who hie, and mento- , , , ,. *,. , ,.,, 1,1 rious considera- claims under the execution 01 a power, makes title under the tion for au ante- power itself. The husband is frequently called the next "rart' 3 '" friend and nearest relation to the wife ; he has a right to ad- minister, and he takes her personal property, according to Lord Thurlow, (3 Bro. 10.) on that ground, and not on that of his marital rights. It is a general rule, that equity will ex- ecute marriage articles, at the instance of all persons who are within the influence of the marriage consideration ; and Lord Macdesfield, in Osgood v. Strode, (2 P. Wms. 255.) consid- ered the husband and wife, and their issue, as all within the influence of that consideration. A late case in chancery (Sutton v. Chctwynd, 3 Merivale. 249.) only held, that a cov- enant, or limitation in marriage articles to strangers, and to a brother, were merely voluntary, and not to be protected and rendered valuable by the consideration of marriage. Though I concur in the intimation of Lord Eldon, that the husband's claim to his wife's bounty is to be closely inspected, and wholly free from symptoms of coercion and undue in- fluence, yet in a fair case, like the present, which has no such imputation, and where there were no offspring to claim a divided attention, I think the wife's bounty is reasonable and just. It springs from the best of human ties, and is founded | * 55 1 ] on the warmest affections of *the heart. There is less danger of improper influence exercised over the wife, in case of an appointment by will than by deed ; because a will, made in execution of a power, still retains all the properties of a will, and is revocable at the pleasure 'of the wife. 424 CASES IN CHANCERY. 551 Nor is there any weight in the objection, that the will IbiS. makes no reference to the marriage articles. It is still in x^-v^-^^ this case a good execution of the power. The rule, as de- BRAPISH clared in Sir Edward Clere's case, (6 Co. 17. 6.) and in many GIBBS subsequent cases. (2 Bro. Ch. Rep. 300, 301,303 ; andBennet Though the v. Aburrow. 8 Pesey. 609.) is. that if a will be made without wi ' 1 do es n . ot r iT ' * 4. refer to the any reference to the power, it operates as an appointment ante-nuptial under the power, provided it cannot have operation without Contract, yet u the power. If the act can be good in no other way than by cuUon of the virtue of the power, and some part of the will would other- p ower . lf llcaa , . . r , . . . ,, have no opera- wise be inoperative, and no other intention than that of tion without the executing the power can properly be imputed to the testator, P ower - the act, or will, shall be deemed an execution of the power, though there be no reference to the power. Here the will can have no effect without the power, not even as to personal property ; and if the power operates upon it at all, it operates equally upon every part of the disposition. My conclusion, accordingly, is, that the plaintiff is entitled The heir at to the relief sought by the bill; and I shall decree that the SidSJSjV defendants execute and deliver to the plaintiff, at his expense, the legal estate a release in fee, to be approved of by a master, of their legal u right and title, as heirs of the testatrix, to the house and lot in the bill mentioned ; and that, as to such of the defendants as have not answered, and may not be within the jurisdiction of the Court, that they be perpetually enjoined from as- serting, or enforcing, their title or claim, as heirs aforesaid, to the same ; and that no costs be allowed by either party as against the other. Decree accordingly. VOL. III. 54 425 652* CASES IN CHANCERY. 1818. KING v. KING. Noi-tmbe 9. *KiNG against KING AND SHARPS, Adminisi rators ol KING. Where administrators sold the leasehold estate of the intestate, and took the promissory note of the purchaser, on a credit, without any secu- rity for the payment of the purchase money, the administrators were held liable to the heirs for the amount, the purchaser having become insolvent. BILL by one of the next of kin, calling on the defendants to account for a distributive share. The defendants having sold the leasehold estate of the intestate, and taken a promissory note of the purchaser on credit, without any security, by mortgage or otherwise, and the purchaser having paid part of the purchase money, and become insolvent before the residue could be collected, the question was, whether the administrators were responsible for the los , H. Bleecker, for the plaintiff. W. Hale, contra. THE CHANCELLOR directed, that the administrators be charged with the whole amount of the purchase money; holding them guilty of negligence in parting with the lease- hold estate without payment or security. 426 CASES IN CHANCERY. *553 1818. BROWN *BROWN against W. & G. RICKETTS, Executors of C. R^ETTS. BREWERTON, deceased. [Commented on, 1 Paige 22; 2 Id. 20. Explained. 1 Paige 419 n. Followed, 4 Johns. Ch. 202.] Creditors and legatees are exceptions to the genera] rule, that all persons interested in the fund must be made parties. Where there are several legacies given, which are to be increased or diminished, as the estate should increase or diminish, one legatee may file a bill in behalf of himself and the other legatees, who may choose to come in, against the executors, for an account and payment. But where the bill is for the residue, all the residuary legatees must be made parties. Where the plaintiff, in his bill, sets up a claim, independent of the will, to part of the property devised in trust to pay the legacies, he must . elect to waive his claim, or wait until it be determined, before he can call for an account or payment of part of his legacy. THE bill, which was filed by the plaintiff, in behalf of Sept. so, and himself, and such other legatees of Catharine Brewcrton, Nov - 9 - deceased, as might choose to come in and contribute to the expense of the suit, stated that C. B., on the 5th of June, 1815, made her will, by which she devised all her estate, real and personal, to her executors, in trust, to sell the same, and out of the proceeds of the rents, profits, and sales of the real estate, in the first ward of the city of New-York, con- stituting one separate fund, to pay debts, and funeral expenses, and also certain legacies which were specified, to near twenty, and among which was one to W. &/ S. Brown, of 3,500 dollars, to be equally divided between them, &c. That if the said fund should prove deficient, or exceed, &c., then the legacies were to be decreased, or increased, in proportion, &c. The testatrix died in June, 1815 ; and the bill further stated, that the testatrix was mistaken as to her being the proprietor of lot No. 27, (part of the real estate directed to be sold,) that the plaintiff believed it to have been the prop- erty of Stephen Richard, and had devolved on the plaintiff as one of his devisees ; the plaintiff prayed, that his rights, if any he had, might be preserved, notwithstanding the bill ; and that he might *not be compelled to make the other leg- [ * 554 1 atees parties. The plaintiff further stated, that the executors of C. B. had proved the will, had possessed themselves of all the real and personal estate of the testatrix, &.C., had received rents, collected debts, and sold property, and re- ceived the proceeds, &c., the amount of which was not only sufficient to pay debts and legacies, but would greatly in- crease the latter, &c. That W. Brown had died, and the plaintiff had become entitled to his moiety of the 3,500 42" 554 CASES IN CHANCERY. 1318. BROWN dollars, no part of which had been paid, &c. Prayer thai the defendants may set forth an account and the disposition of the assets, &c., and may be decreed to pay the plaintiff" the said legacy, &c. The defendants answered, and proofs were taken in the cause, which came on to be heard this day. September so. Burr, for the plaintiff. To show that the plaintiff might sue for himself, and those who might elect to come in as parties, he cited 2 Ch. Cos. 124, 178. Mitf. PL 145. 2 Freeman's Rep. 9. a. 13 Tesey, 397. 16 Fesey, 325. Riggs, contra, insisted, 1. That the defendants being trustees, and the plaintiff claiming as one of the cestui que trusts, he could not support this bill, for want of proper parties, as the other cestui que trusts were neither plaintiffs nor defendants ; 2. That as the bill states, that a lot of land, part of the property devised, and of the fund out of which he seeks payment of the legacy, belongs to him, and not to the estate of the devisor, the bill must be dismissed, or the plaintiff be compelled to elect to claim under the will, and extinguish his pretended claim to that part of the trust estate, before he can call for an account, as a legatee. THE CHANCELLOR. 1. The first objection made at the hearing is a want of proper parties. * 555 ] *It is contended on the part of the defendants, that all the legatees concerned in the fund out of which the 3,500 dollar's claimed by the bill is to arise, ought to have been made parties. This question of parties is frequently perplexing, and diffi- cult to be reduced to rule ; but it is stated in the books, that creditors and legatees form exceptions to the general rule, that all persons interested in the fund must be parties. One creditor, or one legatee, may sue on behalf of himself and the rest, and the others may come in under the decree. The case of creditors is a familiar exception, and the exception as to legatees, not being residuary legatees, seems to be equally well known. In Haycock v. Haycock, (2 Chan. Cos. 124.) there were separate legacies to A., B., and C., and B. sued the execu- tor, who pleaded in abatement the legacy to C., and that by the will, (as in the present case,) the legacies were to be in- creased or diminished as the estate should increase or dimin- ish, and that C. ought to be a party, " for that the account with the plaintiff would not conclude C., and so the defendant would be put to two accounts, and double proof and charge." 428 CASKS IN CHANCERY. 555 The objection was here placed in the strongest point ol 1818. view ; yet it was urged, on the other side, that where legacies \^*~^~ ' were given to divers persons, each alone might sue for his BROWN legacy, and the defendant was ordered to answer. RICKFTTS The same objection was raised by the executor against a suit by one legatee, in the Atto rncy- General v. Ryder, (2 Chan Cos. 98.) and it met with the same fate. It was conceded, by the counsel on each side, in Good v. Blewitt, (13 F'esey, 399.) that bills by creditors and legatees were exceptions to the general rule requiring all parties ; and that one might sue on behalf of himself and the rest ; but it was admitted, that in bills for the residue, all the residuary legatees must be parties, and so it was *ruled in Parsons v. [ * 556 ] Neville, (3 Bro. Chan. Rep. 365.) The same rule, with the same exception, was declared by Lord Eldon, in Cockburn v. Thompson. (16 Fesey, 327, 328.) It seems to be deemed material in these cases of creditors and legatees, that the bill should be stated to be on behalf of the plaintiff, and all the other persons concerned in the sub- ject matter, so that the others may all come in under the de- cree. (Sir J. Strange, in 2 Vesey, 313. Chancey v. May, Free, in Chan. 592. Good v. Blewtt, 13 Vesey, 399.) In Wiser v. Blachly, (1 Johns. Ch. Rep. 438.) the same rule was noticed, that in a bill by a creditor or legatee, it was not necessary to make any other person than the executor or personal representative a party ; and decisions to that effect by Lord Hardwicke and Lord Rosslyn were referred to. There is, consequently, nothing in the first objection. - 2. Another objection is, that the plaintiff, in his bill, ad- vances a claim, independent of the will, to part of the very fund from which his legacy arises, which claim is repugnant to that set up as a legatee. The lot No. 27, mentioned in the will, constituted part of me fund out of which the legacies to the plaintiff and others were to be paid, and the plaintiff cannot have the proceeds of that lot, as a legacy, and yet set up a claim to that lot in his own right, adverse to the title of the testatrix. The claim must be abandoned or disposed of before he can be entitled to the legacy. Noras it sufficient for the plaintiff to claim, for the present, his proportion of the legacy arising out of the residue of the fund, and leave his claim as a legatee on the disputed part of the fund, to abide the future event of the claim. This would be multiplying suits, and might render the defendants liable to another account for his proportion of the proceeds of that lot, after the plaintiff's claim had been determined against him. He must come into Court upon such terms, as that the account *to be taken and decree made [ * 557 ] 429 557 CASES IN CHANCERY. 1818. m tms cause, will determine his entire right as a legatee. v^~v "^ He must either waive his claim, or wait until it be determined. BROWN The Court never will permit a plaintiff to divide an entire RICKETTS. demand into parcels, and to make different suits in succession, when one would be sufficient. The plaintiffmust.be put to his election; and there are some minor points which need not be discussed ; but I will endeavor to embrace in the decree all the points in this case of " entangled equity." Decree. The following decree was entered : " That the complain- ant, within thirty days, release to the defendants, as executors, aforesaid, and for the exclusive benefit of the fund mentioned in the will, at his election, either all his right and title, as a claimant to lot No. 27, in the pleadings mentioned, or all his right and title as a legatee, to any part of the proceeds of the said lot, and execute and deliver such release to the defend- ants, or their solicitor, for, and on their behalf, after the same shall have been approved of by one of the masters of this Court, or that the bill stand dismissed: And it is further ordered, adjudged, and decreed, that in case such release of his right and title, as a claimant of the lot, be given, that it then be referred to one of the masters of this Court, to take and state an account of the said fund, and of the debts and funeral expenses chargeable thereon ; and that the defend- ants, as soon as conveniently may be, after such release shall have been duly executed and delivered, cause the said lot to be sold at public auction, on reasonable previous notice, and that the proceeds arising therefrom be included in the said account : But that if such release of his right and title, as a legatee, be given, that then the said account be taken exclu- sive of the said lot or its proceeds : And further, that in taking such account, the legacy to Paul R. Randall is to be con- sidered subject to the same increase or diminution as the | * 553 ] other legacies ; and the master, in taking the account *of the debts, if any existing, and chargeable on the estate, include the demand of the plaintiff, if any, as a creditor, and that he specially report the proofs and allegations before him in re- spect to such demand ; and in case of such reference, the question of costs, and all other and further questions, are in the mean time reserved." 430 CASES IN CHANCERY. PROUP against SHERWOOD AND WOOD. TROOP v. SHERWOOD. Where, after publication passed, a party files articles, and gives notice of the examination of witnesses to impeach the credit of former wit- nesses, the adverse party may examine witnesses to support the cred- it of his witnesses who have already deposed, and is entitled to a rule to produce witnesses, and pass publication, as in other cases. A copy of articles filed, witn notice of the examination to discredit wit- nesses, must be served on the adverse party, within 14 days after ob- taining a copy of the depositions. And copies of the interrogatories to be administered to the witnesses must be furnished to the adverse party six days, at least, before the day assigned for their examination. It seems, that articles to impeach the credit of witnesses after publication passed, may be filed after the cause has been set down for hearing. The rule of evidence as to impeaching the credit of witnesses who have been examined, should be the same in equity as at law : The inquiry ought to be general, as to the general character of the witness for veracity. But it seems, that on a special application of the Court, the inquiry may be allowed to go beyond the general credit, as to particular facts affecting his character, provided those facts are not material to the matter in issue between the parties. VAN VECHTEN, for the defendants, moved to. pass publication (of depositions taken to impeach the credit of the plaintiff's witnesses) in this cause, instanter. He read the affidavit of S., one of the defendants, and who is solicitor for the other, stating that on the 4th of August last, he first as- certained that publication had passed in this cause ; and he made application to the Court on the 17th of August, for leave to examine other witnesses, which was *denied. That on the 17th of October last, he renewed the application, on affidavits more precise as to facts and dates ; but it was again refused. That about the first of October last, he ob- tained copies of the depositions of the plaintiff's witnesses, and having ascertained facts which induced him to believe that the testimony was untrue in several important particu- lars, he prepared articles to impeach the testimony, and in- terrogatories to several witnesses to be examined, for that purpose, and gave notice of their examination before the examiner, at Utica, on the 30th of October last. That he, this day, proposed to the plaintiffs to consent to have publi- cation pass as to those depositions, so that the defendant might be ready for hearing at the next Court ; but the plain- tiff's solicitor refused his consent, and the cause is noticed for hearing on Wednesday next. 431 Nrsember 9. 559 ] 559 CASES IN CHANCERY. 1818. V an Bar en (attorney-general) and Henry, contra. Thcj v^ *-x' ^x read affidavits, stating, that three witnesses were examined, TROUP on the part of the plaintiff, in July, 1817, and the rule for SHERWOOD. publication passed in December last. That on the 19th of October last, the cause was set down for a hearing on the llth of November instant, and notice thereof served on S., one of the defendants, on the 24th of October. That on the 26th of October, the plaintiff's solicitor received notice that articles had that day been filed, impeaching the plaintiff's witnesses, with a copy of the interrogatories, and notice of the examination of certain persons in Utica, on the 30th of October. The notice mentioned, that the defendants in- tended to examine five witnesses, who were named, to the credit of the three witnesses already examined in the cause. There were six interrogatories, some of which inquired as to all the facts and merits of the cause ; and the articles filed to discredit the testimony of the plaintiff's witnesses, not only stated that the witnesses were of bad character, &c., but [ * 560 ] stated *the particular facts in their depositions which were alleged to be untrue. The counsel for the plaintiff insisted, that the motion ought not to be granted, 1 . Because the notice and copy of the articles were not served within 14 days, according to the 27th rule of the Court : 2. Because the interrogatories were not served six days before the examination, according to the 28th rule of the Court : 3. Because the articles were drawn and served after the cause was set down for a hearing, and notice thereof served : 4. Because the interrogatories were not confined to the character of the witnesses intended to be impeached, but included various material facts in issue between the parties : 5. Because a motion to pass publication on these articles, v.-iihout a previous rule to produce witnesses, would deprive tiie plaintiff of an opportunity to rebut the testimony of the defendant's witnesses, &c. THE CHANCELLOR. The motion on the part of the de- fendants is for a rule to pass publication, instanter. The publication here alluded to does not relate to the testimony taken in chief; for, as to that testimony, publication has passed long ago. It relates to the testimony which is pre- sumed to have been taken within a few days past, before the examiner at Utica, in order to impeach the credit of one or more of the plaintiff's witnesses. There are several objections to this motion : 432 OASES IN CHANCERY. 560 1. It' we were to assume, in favor of the defendants, that 1818 the testimony has been regularly and duly taken, the plain- ^^-^~^, tiff is entitled to a rule to produce witnesses, and to pass TROUP publication, in this case, as in all others. He is at liberty to SaK ^ 0(>1> examine, on his part, to support the credit of his witnesses, and depositions, taken upon such an occasion, *must be pub- [ * 561 lished, as in other cases. The rule is so laid down in the books of practice. (Gilbert's F. Romanum, 148. 1 Ham- soli's Ch. Prac. 511.) The plaintiff is, then, entitled to his successive rules, to produce witnesses, and pass publication, of three weeks each, according to the settled practice of the Court. But, 2. The examination, of which publication is now sought, was irregular; for a copy of the articles filed to discredit the witnesses, together with notice of the examination, ought to have been served on the adverse party within fourteen days after obtaining a copy of the depositions. (Rule 27.) The defendant, who acts for himself, and as solicitor for his co- defendant, admits, that he obtained a copy of the depositions about the 1 st of October, and it was not until after the 26th of October that the articles were filed and the notice given. There has been no application to the Court to enlarge the time in this case, nor does any sufficient reason appear why the rule was not complied with. The consequence is, ac- cording to the language of the rule, that " the cause is not to be delayed on account of such examination ; " and it must be delayed, if we support the examination ; for the plaintiff, * in that case, will be entitled to his rule to produce witnesses. If the examination be supported at all, it must be upon the admission of all the rights of the opposite party. 3. Another objection to the regularity of this examination is, that the interrogatories were not furnished six days before the day assigned for the examination, which was requisite by another settled rule of the Court. (Rule 68.) Either of these grounds are fatal to the motion. It was urged, also, that such a charge could not be made after the cause was set down for hearing. I find, in Russel v. Atkinson, (Dickens, 532.) that the application was held regular, after the cause had been set *down, and, therefore, [ * 562 J I do not place myself, at present, upon that point. But the interrogatories, and the articles impeaching the witnesses, have been produced and commented upon ; and I think the occasion requires, that I should take some notice of the extent to which this inquiry is attempted to be carried. It is plain to perceive, that the interrogatories do go into the merits of the issue, under pretence of examining a* to credit only. This cannot be permitted ; for it would be indirectly VOL. III. 55 433 562 CASES IN CHANCERY. 1818. breaking down those ancient and salutary rules, which re- v^^-s^-^^/ quire the examination on the merits to be closed as soon as TROUP' publication has passed. SHERWOOD. ^ ma y be somewhat difficult to reconcile all the cases, and to define the precise limits within which these special examinations are to be confined. I have endeavored to discover the principle on which they ought to rest. In Gill v. Watson, (3 Aik. 521.) Lord Hardwicke said, that at law you could only examine to the general credit ; but that in equity the witness must be able to answer any par- ticular charge, because, by the mode of the examination, he has time for recollection. The reason assigned is not suffi- cient for the distinction ; and the reporter, Mr. Atkyns, adds, by way of quare, whether there be any such distinction. He says, that Mr. Cappen, an eminent and experienced practitioner, told him, that examinations to the credit were general here as well as at law, and so was the form of the interrogatories. The doubt, in this case, is perfectly warranted by the authority of Baron Gilbert, (Forum Romanum, 147, 8.) who says, that the rule of evidence is the same here in equity as it is at law, and that the inquiry only relates to those crimes, or that general bad character which would disqualify or discredit the witness at law. In Purcell v. MNamnra, (8 Vesey, 324.) the point was, however, considered as unsettled, even after the accession [ * 563 ] *of Lord Eldon ; and it underwent much discussion in that case. The motion there was for leave to exhibit articles as to the credit of a witness, interrogating him as to particular facts, whether he had not been a woollen draper, and insolvent, &c. The counsel against the motion contended, that the only point to which they could examine, was the general one, whether the witness had credit to be believed on his oath, and that there was no instance of liberty given to contradict any fact sworn to in the depositions published. But the counsel on the other side mentioned instances of such examinations going into particulars ; and the nature of those particulars is worthy of notice. In one case, the wit ness had deposed in chief, that she had lived with the de- fendant in the particular capacity of a milk-maid ; and the charge against her credit was, that she did not live with him in that or any other capacity. In another case, the witness had stated, that she was a widow ; and the charge was, that she was a wife to the defendant. It will readily be perceived, that those were cases of a particular solitary fact, although dehors the matter in controversy, and that they had not the 434 CASES IN CHANCERY. 563 remotest connection with each other. The fact stood dis- 1818 tinctly by itself, and no art or stratagem could conduct the \^~^~*+**> inquiry to the forbidden ground of the matter in issue. Lord TRUUP Eldon observed, that if you were to examine as to what was SHERWOOD. material in the cause, under color of examining to the credit, the allegation in favor of such examinations would be made in every case, and would be endless. He, accordingly, con- cluded, that the party was at liberty to examine by general interrogatories to credit, and as to such particular facts only as were not material to what was in issue in the cause. We are to bear in mind, that the case in which this de- cision was made, was only as to the inquiry, whether the ^witness had been a woollen draper, and whether he had [ * 564 ] been insolvent. The rule in this case was implicitly followed in Wood v. Hammerton ; (9 Vesey, 145.) and in Carlos v. Brooks, (10 Vesey, 49.) Lord Eldon explained more at large the princi- ples of his former decision. He said, that the examination, as to credit, was to be confined to general credit, by pro- ducing witnesses to swear that the person is not to be be- lieved upon his oath ; and that if you find him swearing to a matter not in issue, there was no danger in permitting the opposite side to state that such fact was false. He said, that, in Pur cell v. M'Namara, it was agreed to be competent to examine any witness to the point, whether he would believe that man upon his oath ; and in that case the witness went into the history of his own life, and of his solvency, though there was no matter in issue as to his insolvency, or whether he had compounded with his creditors. It was, accordingly, allowed to the other party, by way of affecting his credit, to show, that what he had related of himself, and which had no concern with the cause, was false. The point again came up before Lord Eldon, in White v. Fussell. (1 Fes. &/ Bea. 151.) The defendant had obtained an order for a commission to examine witnesses to the credit of a witness, and as to such particular facts as were not ma- terial to what was in issue. (Vide the order in this case in 2 Fes. fy Bea. 267. note.) The lord chancellor observed, that applications of that kind were always regarded with great jealousy ; that the Court requires that the examination should be only to the credit of the witness, and to facts affecting credit and character only, and those not material to the matter in issue. This case contains an important observation, in that part of the opinion which limits the particular facts to such as affect the credit and character only, and under this limitation, *and after confining the inquiry, as all the cases seem to d >, f * 565 ] 4*5 565 CASES IN CHANCERY. 1818. to some special prominent facts, totally detached from the v^^^-^-^^x cause, I do not know that the rule is very liable to abuse. TROUP In every possible allowance of it, I apprehend we ought to watc h *he application with a narrow scrutiny. I should, however, if the point was res Integra, prefer the simplicity and safety of the old rule of practice, recommer.ded by the counsel in Atkyns, and explicitly laid down by Lord Ch. Baron Gilbert, and confine the inquiry, as at law, to the gen eral character of the witness, as a man of veracity. The vice-chancellor, in Watmore v. Dickenson. (2 Fes. fy Bca. 267.) said, that the only proper question was, whether th 3 witness was worthy of belief on oath. If, however, we take Lord Eldon's rule, limited and regu- lated as it has been by the process of his slow and cautious, but generally unerring, judgment, and apply it to the present case, we cannot hesitate, for a moment, in condemning the interrogatories before us, as palpable violations of the rule. They go at once to the very ground of controversy, and touch the merits of the case. If the examinations were before mo, they would be immediately suppressed. But while the motion must be denied, as well on the merits as on the point of regularity, it becomes a question, whether I ought not to permit an inquiry as to the general credit of the witnesses. The suitable restrictions upon these collateral examinations has never before, within my knowledge, been discussed in this Court. They have been unsettled, until a very recent date, in England, and, perhaps, it may be deemrd reasonable, under these circumstances, to allow the defen 1- ants an opportunity to question the credit of the witnesses. It is, however, rather a matter ex gratia, than founded on any right on the part of the defendants to ask it. Whilsl 1 lay down rules for the future government of the Court, lam [*5(6] very anxious *that these expositions of the law should not operate as a surprise upon the party in the given case. I shall, therefore, allow the defendants to file articles of impeachment de novo, confined to the question of geneial credit, on condition that they be filed by the opening of the Court to-morrow, and that the plaintiff's costs of setting down this case for a hearing at this term, be paid at the same time. It is most reasonable that the defendants should pay these costs ; for the irregular examination in question was conducted contrary to the printed rules of this Court, which they must have had before them. If an inquiry is to be had, it ought to be confined to the general character of the wit- nesses for veracity ; for the affidavit of the defendant states no particular, special, detached facts, proper for a more par ticular examination. When the inquiry is to go beyond the 436 CASES IN CHANCERY. 566 general character, it cannot be of course under me general 1818. rule ; but there ought to be a special application to the Court, v^^^^^^^y so that it may be previously seen whether there be any fit TROUP ground for such an examination. And I understand, by the SHERWOOD case of Mill \. Mill, (12 T^esey, 406.) that the English rule is, that no examination in chief, as to the credit of witnesses, can be had without a special order, upon application, and notice to the party. It would otherwise be deemed an im- pertinent inquiry. I am not informed what has been the practice of this Court on that point. Rule accordingly. 437 567* CASES IN CHANCERY. 1818. Matter of *In the Matter of HANKS, a Lunatic, On a petition by a lunatic to supersede the commission, and to I c restored to his estate, on his recovery, the Court will either order it to be re- ferred to a master, to take proof as to the allegations in tho bill, and to examine the lunatic, if he thinks fit, and to report the proof, and his opinion thereon, or direct the lunatic himself to attend in Court, to be examined by the chancellor. Nmwiter 12. PETITION by the lunatic, stating that he had recovered his sound mind, and praying that he might be restored to his estate. The petition was accompanied with the affidavits of two persons in support of it. M' Manners, for the motion. THE CHANCELLOR. The English practice in such cases seems generally to be for the lunatic himself to attend upon the hearing of the petition, that he may be inspected by the chancellor. (Ex parte Bumpton, Moselcy, 78. Ex parte Ferrars, Id. 332.) The Court is, no doubt, to exercise a sound discretion on the question of superseding a commission, and if serious doubts be entertained of the sanity of the party, the commission may be retained for a time, though the party be restored to his personal liberty, as was done in the case of Ferrars ; or the chancellor may award an issue to ascertain the truth. In the late case of Manistre, (of which the proceedings are given in 2 Collinson on Lunacy, p. 746., and which, I take this occasion to say, is a valuable work, both for doctrine and precedents, on this melancholy subject of the human mind in ruins,) there was an order, on the hearing of the petition of the lunatic, for all parties con- cerned to attend, by a given day, and of which notice was to be forthwith given ; and on the day of the hearing, there [ * 568 ] were twenty affidavits read of *the committee, and phy- sicians, and others, and counsel heard for the petitioner and lor the next of kin. It is difficult to determine when the mind is restored, and the force of the testimony must depend on the circumstances, whether the party has been led to those topics upon which hi$ mind was affected. The disease is often very insidious. I have frequently been visited by lunatics against whom an inquisition has been returned, and a committee appointed Their object was always to complain of the proceeding, 01 438 CASES IN CHANCERY. 569 of the committee; and I have rarely been able, on such cc- 1818. casions, to detect the mental infirmity. Lord Eldon has ^.^-^^ ^^/ observed, that he once, as counsel, succeeded in getting Matter oi Lord Thurlow to supersede a commission, and was satisfied, HANKS from many conferences with the party, that he was perfectly rational. But when he obtained the order of supersedeas, and the party came to thank him for his services, he dis- covered the disorder in five minutes, and regretted all he had done. In the present case, the affidavits do not detail, in a cir- cumstantial manner, the grounds upon which the opinions therein contained are formed, nor do they profess to be the affidavits of medical men. I should prefer, in this case, as the safest course, to refer the petition to a master to take proof as to the allegations in the bill, on giving the committee due notice, and to examine the lunatic, if he should deem it advisable, and to report such proof with his opinion thereon. If it should, afterwards, be necessary, the lunatic can be brought before me. Order accordingly. 439 5(39* CASES IN CHANCERY. 1818. MURRAV v. *JVIURRAY ANI> MURRAY against TOLAND AND MEADE TOLAND. [s. c. 18 Johns. 24. Followed, 2 Edw. 122; 8 Paige 600.] M. and T., being owners, in certain proportions, of goods lying at Cadiz, M. consigned the whole to T., of P., for sale, on their joint account, according to their respective interests ; and T, put the goods, with the invoice and bill of lading, into the hands of B. and Copartners in trade here, to sell. Held, that B. and C. could not retain the proceeds in their hands, to satisfy a demand of B. against M. That T., as part owner, and as factor and agent of M., the other part owner, might maintain an action, in his own name, against B. and C. for the pro- ceeds ; and that the defendants could not set off against the plaintiff' the separate demand of B. against M., especially when that demand was for damages arising from the alleged negligence and misconduct of M., which were the proper subject of a distinct suit, and of legal, not of equity jurisdiction. That B, and C., having received the goods for sale, as agents of T., with full knowledge of his rights, and of the capacity in which he acted, and without giving him notice, at the time, of the claim of B. against M., were not entitled to the aid of this Court in their defence of the suit of T. against them at law. Where the supercargo and agent of a merchant here delivers goods to a merchant abroad for sale, and the agent settles with the merchant abroad, according to the account stated by him, with full knowledge of all the facts, without any fraud or imposition, the principal here is bound by the act of his agent, and is concluded from any further claims against the merchant abroad, especially after having kept the account for several years, without making any objections to it. October [and IN February, 1813, the defendants, Henry Toland, jun., I'er;}. Novem ~ of Philadelphia, and Richard W. Meade, an American citizen, "esiding at Cadiz, were joint owners of 500 pieces of block tin, 236 pieces belonging to T., and 264 pieces to M., then lying in Cadiz. W. L. Hodge, agent of T. at Cadiz, and supercargo of the ship William, agreed with M. to ship the tin on board the William, consigned to T., and the tin was accordingly shipped, and the invoice and bill of lading ex- pressed, that it was consigned to T., of Philadelphia, for the account and risk of M. fy T. in their respective proportions, above stated. The ship with the tin arrived at Netv-YorJc, the 27th of March, 1813, and T. sent to the plaintiffs, John B. Murray and James B. Murray, partners in trade there, the bill of lading and invoice of the tin, with instructions to 570 ] sell it. On the 20th of May, 1813, *John B. M. informed T. verbally, that M. was greatly indebted to him, John B. M., and that he should retain the proceeds of the tin, in part sat- isfaction of his claim ; and by letters of the 31st of May, and 4th of June, 1813, he informed T. that he should retain the proceeds of the tin, to protect him from the violation of a written agreement between him and M., and that a balance 440 CASES IN CHANCERY. 570 of 4,409 dollars and 38 cents was due on the 17th of July, 1818 1810, from M. to him. ^>^~^ Soon after the verbal notice given to T. on the 20th of MURK A 7 May, 1813, T. informed the plaintiffs, that he had accepted T(JI V ANU a bill of M. on him for 300 dollars ; and the plaintiffs charged, that when the first notice was given to T., he had not assumed any responsibilities for M. The bill further stated, that T. had brought an action at law in the Supreme Court against the plaintiffs, as his factors and agents, to recover the proceeds of the tin ; and the plaintiffs set forth a particular statement of the claim of John B. M. against M., and prayed for an injunction against the suit at law, and for general relief, &c. The defendant, in his answer, stated, that when the tin was shipped, M., as his factor and agent, was possessed of a quantity of flour belonging to T., and placed in the hands of M. by H. for sale, which he sold for 662 dollars, but had rendered no account of sales ; and that M. had also collected money for freight belonging to T., to the amount of 1,313 dollars, which he had not remitted to T., but claimed to hold the moneys in his hands belonging to T., as a set-off against the proceeds of M. 's portion of the tin. That T. on the 24th of May, 1813, paid a draft of M. on him, for 300 dollars; anil on the 23d of June, 1813, he paid a bill of exchange, drawn by M., the 5th of May, 1813, for 500 dollars, at 10 days' sight. That these sums were drawn for out of the expected proceeds of the tin. The defendant did not receive any notice of John B. M.'s claim against M., or of his in- tention to retain the proceeds of the tin, until after the tin was in possession of the plaintiffs. *That, afterwards, on [ * 5" 1 ] the 20th of May, 1813, John B. M. informed him of his having a claim against M., and of his intention to retain the proceeds of the tin ; but the defendant did not suppose him t ,'> be serious in that intention, until after his letter of the 3 1st of May. That the defendant did not conceive himself justified, by the letters from J. B. M., in refusing to accept the bills of M., drawn upon the faith of the consignment to the defendant ; that the plaintiffs offered the defendant no indemnity ; that M., being informed of these claims of J. B. M., wrote to the defendant, in September, that if he allowed the plaintiffs to rob him of the proceeds of the tin consigned to the defendant, he should hold him responsible. The de- fendant admitted, that he had sued the plaintiffs at law, for the proceeds of the whole tin, and insisted that the plaintiffs, as his factors, cannot question his title, but are bound to ac- count to him for the proceeds ; and that, at all events, the defendant has a preferable Hen, to the extent of his claims VOL. III. 56 441 571 CASES IN CHANCERY. 1818. against M. That the defendant knows nothing of the trans v^-x^-^x actions between the plaintiffs and M., and that if M. is liable MURRAY to John B. M. for damages, for any violation of contract, il TO/AND ls an unliquidated claim, which cannot be legally s(t off against the proceeds of the tin ; and that if M. is liable a* all, it is to John B. M., individually, and not to the plaintiffs The defendant Meade, in his answer, stated the particulars of the transactions between him and the plaintiff's. It ap- peared that the claims of John B. M. against him arose out of a consignment of a cargo, on board a vessel, called the Charleston Packet, which was under the care of Samuel Lyle, who was on board of the ship, and who consigned it to A/ to be sold for John B. M. It was proved, that Lyle, who was the supercargo of the Charleston Packet, and had the entire direction and manage- ment of it for John B. M., had come to a compromise and f * 572 ] settlement with Meade, relative to it, on the 28th of * October, 1808, according to an account current, annexed to the an- swer of M., under which was the following receipt by Lylt ,>, dated the 29th of October, 1808: "Received of Richard W. Meade an order on Gordon and Co. for 385 casks of wine, which remain at my disposition, for balance of account cur- rent rendered on the 28th instant." Lyle, in his deposition, stated, that the account of M. of the 28th of October, 1808, contained a number of unjust charges, which he specified, and that he was induced, or rather compelled, for reasons mentioned by him, to suffer them to remain in the final ac- count. In the receipt given by Lyle to Gordon and Co., on the 9th of January, 1809, under the order of M., for the 385 casks of wine, and 23 casks, in addition, he says, " which wine I have thought prudent to receive, as part payment of a balance of accounts which M. ought to have paid me in June last, reserving to John B. M. his claim for the amount of all losses and damages sustained by him in consequence of my concerns with R. W. M." October i and 2. Harison and R. Sedgwick, for the plaintiffs. D. B. Ogden and T. L. Ogden, for the defendants. November is. The cause stood over for consideration until this day. THE CHANCELLOR. The bill was filed to stay the suit at law brought by the present defendant, Toland, to recover the proceeds of the goods which he had committed to the plaintiffs to sell. 1. The first point which arises for discussion is, whether 442 CASES IN CHANCERY. the plaintiffs can retain those proceeds, or any {.art of them, against Toland, in consequence of a demand which one of the plaintiffs advances against Meade, who had an interest in those goods. The goods belonged to Meade and Toland, in nearly equal *proportions, and were sent from Cadiz, in Spain, by Meade, consigned to Toland, and the invoice mentioned that they were shipped on account of Meade and Toland, in the pro- portions therein stated. When the goods arrived at New- York, the invoice and bill of lading were sent by Toland to the plaintiffs, with instructions to sell the goods. The plain- tiffs state in their bill, that the goods arrived at New- York, on the 27th of March, 1813, and that about that time Toland sent them the invoice and bill of lading, with instructions to sell, and that on the 20th of May following, they informed Toland that one of the plaintiffs would retain the proceeds, in part satisfaction of his claim against Meade. I presume that the goods were then sold ; and the question is, whether a Court of equity will aid a claim advanced under these circumstances. It cannot be denied that Toland was entitled to demand and receive those proceeds, and to bring an action at law in his own name. There was a privity of contract between the parties. A factor, according to the case of Drinkwater v. Goodwin, (Cowper, 251.) who receives., and is authorized to sell goods, may bring an action to compel the buyer to pay, and " it would be no defence to the buyer, in that action, to say, that a^ between him and the principal, he ought to have the money." The factor has a lien on the price of the goods in the hands of the buyer, for the balance of his account, nnd for his acceptances made upon the faith of the consigns i L In this case, Toland was part owner of the goods, and he held the residue as agent or factor of Meade. He dealt with the plaintiffs jointly, as a commercial house, and there was no privity between him and one of the plaintiffs, in dividually considered. If there could be any set-off allowed in this case, it ought to be of a joint demand of the plain- tiffs, and not of the separate demand of one of them. The plaintiffs assumed, and are responsible for those proceeds in their joint capacity. This fact is, of itself, decisive *against the alleged right to retain. The debt demanded, and the debt to set off, must be mutual, i. e. they must be due to and from the same persons, in the same capacity. But it does not appear to me to be fit, even upon more general grounds, for this Court to aid such a defence ; and the plaintiffs ought to be left to their defence at law, if any 443 1816. Debts set off against each other must be mutual ; that is, they must be due to, a-tl [ * 574 } from the same persons, in the same capacity 574 CASES IN CHANCERY. 1818. they have. The defendant Toland disclosed his rights, and v^ v"-**-' ^e capacity in which he dealt, when he sent the documents MURRAY and instructions to the plaintiffs, and the plaintiffs accepted TOLAND. ^ tne agency conferred by T. without notice of any dor mant claim against Meade, and they dealt with him as theif principal. This claim was kept concealed for two months, before either of them, even verbally, made any pretension. They accepted of the trust as agents of Toland. and good faith requires that they should fully account to him, and to him only. It was for Toland' s principal to interfere, if he had so chosen, to protect himself against Toland. The plain- tiffs had no right to put Toland aside, against, his consent, and to challenge a controversy with his principal. This Court ought not to lend its assistance to a proceeding so re- pugnant to that candor which the parties had a right to require of each other, and to the confidence which was reposed. 2. This ground is quite sufficient to justify a dismissal of the bill, as against Toland. But if we go into the exam- ination of the claim set up against Meadc, there appears to be a decisive objection to it, arising from the settlement made on the 28th of October, 1808, between Meerrfe and Lyle, who acted as the authorized agent of the plaintiff, who advances the claim. There was an account current stated and admitted. Lyle acted upon a full knowledge of all the facts. There is no pretence of any fraud or imposition practised upon him, or that he had not a perfect freedom of action in discussing and settling the account. It was founded upon mutual conces- ' * 575 ] sions. If a person will enter, even into a *hard bargain, with his eyes open, observes Lord Hardwicke, (2 Atk. 251.) equity will not relieve him, unless he can show fraud, or some undue means used. At the foot of this stated account, Lyle. receives and gives a receipt for an order on Gordon and Co., for the balance of the account ; and though he afterwards gives a receipt to Gordon, in full of the order, as though it was only " part payment of the balance of accounts," yet this being an act of his own, long after the acknowledged settlement, it cannot have any effect upon it. The pretence of coercion, or undue influence, exerted over Lyle, is without a shadow of proof. He had applied to the judicial tribunals of Spain for relief; and, then, without waiting for any de- cision, and without any undue cause, he " finally concluded," as he says, to receive from Meadc the balance as stated, " as a measure of prudence," because Meade was considered in insolvent circumstances. There is no evidence of such insolvency existing ; and it is most reasonable that the plain 444 CASES IN CHANCERY. 575 tiff, J. B. M., should be bound by the measure of prudence adopted by his agent, especially as no objection appears to have been made, and transmitted to Meade, by the plaintiff, from the date of the settlement in October, 1808, to the time he resolved to appropriate the proceeds in question, in May, 1813. It has been often held, that if a party receives a stated account from abroad, and keeps it by him for any length of time, (one case says two years,) without objection, he shall be bound by it. (Willis v. Jernegan, 2 Atk. 251. Ticket v. Short, -2 Fesey, 239.) Chancery will not decree an account to be tiken after such a lapse of time, but will leave the party to his remedy at law. 3. If this settlement was not in the way, yet the claims of one of the plaintiffs would not be a proper subject of set-off, for they are founded upon the alleged negligence and mis- conduct of Meade, and these are matters of tort, sounding in unliquidated damages. Such misconduct *is properly to [ * 576 be inquired into, in a distinct suit for that purpose ; and so it was decided in Winchester v. Hackley. (2 Cranch, 342.) It is, also, a subject of legal, and not of equity jurisdiction. Considerable stress was laid, by the counsel for the plain- tiffs, upon what was said by Lord Hardwicke in Shish v. Foster. (1 Vesey, 86.) The doctrine, in that case, was con- sidered as being applicable to this, because the plaintiffs might have difficulty in obtaining satisfaction from Meade, who re- sides in Spain, if the proceeds belonging to him, in this case, were taken out of their hands. But that case is not analogous. The plaintiff there had filed a bill against his former guardian, to set aside a stated account, on the ground of fraud ; and the defendant filed a cross-bill for the specific performance of an agreement for an estate in possession of the plaintiff. The chancellor sus- pended the decree for a specific performance, until the ac- count was taken, as the plaintiff would have been in danger of losing his demand, if the estate had been taken from him, for the defendant had frequently absconded. The cross-bill, in that case, was for equitable aid ; and under the circumstances of the case, the Court applied the rule, that he who would have equity must do it. Whether the rule was properly ap- plied in that case, is at present immaterial, for it is a sufficient objection to the application of the case, that Mcade is not now a plaintiff before this Court asking for relief. But Lord Pla^dwicke, in delivering his opinion, cited the case of " Jacobson v. Hans Towns, or merchants of Almaign" From the imperfect note which he gives of the case, it would appear, that Jacobson had been a lessee of an estate belong ing to the defendants, and the lease having expired, an eject- 445 576 CASES IN CHANCERY 1818. merit had been brought against him at law to recover posses- ^**~^>~^/ sion. He filed a bill in chancery, on the ground that he was MURRAY a creditor in a long account, and that the estate ought not TOL^AND. to-be taken from *him, until he had received satisfaction of r # 577 -j his demand. And though he had no real lien on the estate, an injunction was granted by Lord Macclesfidd , and con- tinued by Lord King, because of '' the difficulty of his getting satisfaction, if the estate was taken from him, as they (the defendants) were a corporation residing beyond sea." This case requires every kind of explanation ; and I am not willing to consider it as an authority, as it now stands. It is not to be found elsewhere ; it is contrary to the principles of the Court, which measures out the same justice to foreigners and citizens ; and it is contrary to the established doctrine in respect to set-offs. It is altogether new, that an unsettled account can be set off against an ejectment to recover pos- session of land, to which the lessor, in the ejectment, has an undoubted title. The only case in which an ejectment has been stayed, until an account was taken, is the case of an ejectment for non-payment of rent, and where the dealings between the landlord and tenant were too complicated for law. The interference of the Court, in that special case, was requisite to determine whether there was any foundation for the ejectment. ( O' Connor v. Spaight, 1 Sch. fy Lef. 305.) But to enjoin a party residing out of the jurisdiction of the Court, from covering possession of land to which he has a title, because the tenant in possession has some personal de- mand against him totally unconnected with a right to the land, would be extraordinary. The ground taken in the case stated was, that it would be inconvenient or difficult for the tenant to obtain his demand from the party residing abroad. Is the Court, then, to hold the land, by way of mortgage, for an uncertain demand sounding in contract or tort, when the parties have created no such lien ? I cannot venture to act upon such a case without more authority. If that was the law or usage of the Court, we should have had better evidence of it than this obscure and solitary allusion to the case of ' * 578] Jacobson v. Hans *Towns. Such a principle would check all suits at law. and extend the doctrine of set-off to every possible case, if it so happen that the plaintiff' at law was not within the jurisdiction of the Court. The inconveni- ence of following a party to his place of residence abroad, does not appear to me to be, of itself, a sufficient ground for departing from the settled doctrines of the Court. The Court cannot be governed by the mere question of comparative convenience. What would be proper, if the party resided in a country where there was no regular law or justice, 01 446 CASES IN CHANCERY 578 where he was absolutely inaccessible, is not a point before 1818 me. A residence at Cadiz is, surely, not such a case ; nor v^-v ^-/ is Spain, with all her infirmity, to be put out of the pale of MJRRAT civilized nations. I shall not enter into the discussion of the charge of mis- conduct in Meade, and which occupies so large a part of the pleadings and proofs in this case. Either of the three grounds I have taken are sufficient to destroy the equity of the bill as against Toland, and the two last of them, as against Meade. The injunction must, accordingly, be dissolved, and the bill dismissed, with costs. Decree accordingly. 447 578 CASES IN CHANCERY. 1818. RAYNER _ v. KAYNER, Administrator, fcc. of SEARING, and others, PKARSALL. -M-J , . against TEARSALL and others. An assignee of an executor, or of the administrator of an executor, cannoi be called to an account by the legatees, where there is no fraud or collusion, even though the assets could be traced and identified. Where an executor put bonds and notes, due to the testator, into the hands of an attorney to collect, and after the death of the executor, the attorney collected the money and applied it to his own use, and * 579 ] became insolvent : Held, that *the estate of the executor was not chargeable with the loss, especially after a lapse of more than six years. Where the administrator of an executor, in his answer to a bill filed by the representatives and legatees of the testator, for an account, &c., sets forth an account, and avers that he had fully administered, &c., and had distributed the surplus, being a trifling sum, the Court re- fused to order a reference to a master for a further account, especially after a lapse of twelve years. September 3d, JOHN SEARING made his will on the 29th of March, J5 r 1795, and appointed William Pearsatt and three other persons his executors. The testator died in October, 1797, and the will was proved by Pearsatt, who qualified as executor, the other persons having refused to act. After giving several specific and pecuniary legacies, the testator directed his estate to be divided into^/bur parts, and gave one fourth of the same to the children of Joseph Baldwin, one fourth to fVittet Rayner, one fourth to the children of George Van Kleeck, and one fourth to the children of Elizabeth Hicks. WiUet Rayner, the children of George Van Kleeck, deceased, and the children of Elizabeth Hiclts, residuary legatees, men- tioned in the will, are the plaintiffs in the suit. The bill charged that the executor. P., collected part of the debts, and sold part of the personal estate, which amounted to more than the pecuniary legacies, and sold part of the real estate ; that the testator left a large real and personal estate, which did, or might, if not for his negligence, have come to the hands of the executor, a schedule of which was annexed. That the executor died intestate, in 1803, leaving a hrge estate, without having paid the legacies, &c., except the bequests to the widow. That Mary Pearsall, the daughter of the executor, administered on his estate, and possessed herself of a large part of the real and personal estate of the testator, and of his books of account, &c., and afterwards married John Woolley, (defendant,) and died in February, 1816, intestate ; that W. possessed himself of the -eal and personal estate of his wife, and of a great proportion of th 448 CASES IN CHANCERY. *580 estate of S., the testator, and has not administered on his IS is. ^wife's estate, nor on the estate of her father, W. P., nor had he or his wife paid the legatees under the will of S., &c. That in July, 1808, the defendant Lavinia Pearsall, widow PJ , AI < AIL of IV. P., deceased, tooK. out letters of administration de bonis non, &c., of the executor of S., and possessed herself of the real and personal estate, or the proceeds thereof, of S., and of his books of account, &c., and also of the personal estate of W. P., the executor, but had not accounted, or paid to the legatees, their legacies, &c., but had put the estate, books, &c., into the hands of the defendant Charles Rapelyea, who had married her daughter Catharine, who held the same, without accounting to the plaintiffs or the other legatees of S. That the surviving executors of the testator, $., having renounced, and his widow having also renounced her right to administer, administration, with the will annexed, was granted to the plaintiff, William Rayner, one of the residuary legatees. That the children of Joseph Baldwin, who are the other residuary legatees, with their father, reside out of the state, and it was unknown whether they were living or dead. Prayer, that the defendants may account, &c., and be decreed to deliver or pay to the plain- tiffs the real and personal estate of the testator, S., or the proceeds thereof, remaining unadministered by W. P. &c., y.nd to deliver the books of account, deeds, &c., relating to .he estate of S., to the plaintiff Rayner, &c., and for general Belief. Wiooflcy, in his answer, stated, that he delivered up to Lavinia P. all the assets which his wife left, as administratrix of W. P., except one third of the furniture, which Lavinia, as ad- ministratrix, delivered to him, and personal property of W, P. to the value of 32 dollars and 71 cents, and that all that property, now in his hands, does not exceed the value of 1 60 dollars ; and he denied that he ever had any other prop- erty of W. P., or any part of the estate of S. The defendant Lavinia P., in her answer, admitted that [ *5S1 ] IV. P. was the acting executor of S., and sold the real and personal estate of the testator, and collected some of the debts ; that in 1799 he sold a farm and meadow, which was all the real estate, for 3,000 dollars ; that the personal estate, except what was bequeathed, was sold at auction, in October, 1797, and November, 1798, and produced 735 dollars and 98 cents ; and that the plaintiff R. purchased to the amount of 118 dollars and 12 cents, which he has not paid. That the schedule referred to in the bill was not correct; and the whole of the property specified did not come to the hands of the executor. That the bonds and notes there mentioned VOL. III. 57 449 581 CASES IN CHANCERY. 1818. were, in 1799 and 1802, put into the hands of an attorney v^-x^-v^x A.. Skinner, for collection, and no part of them has been RAYNER received by the executor, or by his administratrix, M. P., or PEARSALL ^ * ne defendant. That the money due on the bonds and notes was, afterwards, paid to Joseph Winter, an attorney ; and the plaintiff, as administrator of S., sued Winter, and recovered a verdict, in 1813, for 2,302 dollars and 51 cents; and that the plaintiff ought to look to Winter, or the persons who paid him the money, and not the estate of W. P. That a note of W. H. for 60 pounds, 7 shillings, and 8 pence, and a note of S. L. for 12 pounds, which could not be col- lected, are now in the hands of the defendant. Two other notes were assigned to the widow of the testator as part of her legacy. That according to the statement made to the defendant by A. Skinner, the executor, W. P., recovered 50 pounds in 1797, on R. Morrel's bond; and in 1798, 70 pounds for rent. That the defendant knows no more of the assets of the testator, and denies all negligence in the ex ecutor, who died the 20th of May, 1604, intestate. That neither the executor nor his daughter, after his death, ever took possession of the assets of the testator. That she, as administratrix of W. P., collected some moneys due to him, and paid some debt, leaving a balance in her hands of 81 [ * 582 ] *dollars and 8 cents, besides some furniture, of the value of 140 dollars ; that she left furniture to the value of 70 dollars, with W., as the proportion of his wife, the daughter of W. P. That after deducting 25 dollars for her services, the defend- ant paid the residue of the 81 dollars and 8 cents, which were all the remaining assets of W. P., to the defendant jR., who had married the only surviving child, and to whom, also, she delivered the furniture, valued at 140 dollars, half of which had since been returned to her. That, as appeared from receipts in her possession, W. P., as executor, had paid 3,265 dollars and 38 cents, of which a schedule was annexed ; and had retained 37 dollars and 59 cents, for his own debt, and 214 dollars, 72 cents, for moneys expended, as executor, also, 250 dollars for a legacy to him and his brother, and 250 dollars given to him conditionally, the condition having happened. The defendant denied that the plaintiff had ever demanded an account of the administration of Searing's estatf ; and she insisted, that considering the lapse of time since the death of S., W. P. and M. P., she was not bound to render any further account. The defendant R. admitted the receipt of 56 dollars and 8 cents, in money, and the furniture which he received of Lavinia P., in part of the estate of W. P. in right of his wife, the daughter of W. P. ; and he denied all knowledge 450 CASES IN CHANCERY. 532 of the estate of the testator S., and that he ever received any part of it, or of the proceeds, or was ever requested to give any account respecting it. T. A. Emmet, for the plaintiffs. Wells, and J. Riker, for the defendants. THE CHANCELLOR. There does not appear to exist even the shadow of a right of action against the defendant Rapelyca. He married, in 1814, a daughter of Pearsall, *the executor, who had been dead ten years, and he received from his mother-in-law a few dollars in money, and some trifling furniture belonging to the estate of Pearsall, and of which estate she was only an administratrix of assets unad- ministered by the former administrator. There is no real pretension of any collusion between him and any person rep- resenting the estate or assets of Searing. The complainant, Rayncr, was the personal representative of Searing, when the defendant R. married into the family of Pearsall. The defendant R. did not receive the furniture and cash of Lavinia Pearsall as being part of the estate of Searing. There is no proof of such an allegation, or that he had any reason to suspect any connection between what he received, and the assets of the estate of Searing. There is no such identity traced, or pretended, in the property he received. The defendant R. was, therefore, brought into Court without any reasonable cause. It would be most inconvenient, if not unjust, to pursue assets in this way, through successive hands, or a sequel of transfers, when no fraud or collusion exists, even if the assets could be traced and identified. There must be collusion to make the assignee of an executor, and, more especially, the assignee of an administrator of the executor, liable to the legatees of the testator. This is the principle to be found in the books. (Newland v. Champion, 1 Vesey, 106. Lord HardwicJce, in Simpson v. Vaughan, 2 Aik. 33, and 2 Vesey, 469.) The bill as to the defendant Rapelyea must, therefore, be dismissed, with costs. We come next to consider the case of Lavinia Pearsall, the administrator de bonis non of Pearsall, the executor of Searing ; and the principal question in the case is, how far Pearsall was personally responsible at his death. Wm. Pearsall had been the acting executor of Searing, from October, 1797, to May, 1804, when he died, and it is *not until May, 1816, or 12 years after his death, that this suit is brought against his personal representative, and who 451 1818. *~v~+* RAYNET. v. FEARSALL Septeraber 30. [ * 583 1 [* 584 584 CASES IN CHANCERY. 1818. nia y be considered as a representative in the second degree. V^N/-^X Every intendment ought to be made in favor of the executor RAYNER who has been so long dead, and when his immediate admin- PEARSALL istrator has been dead for upwards of ten years before the filing of the bill. A principal matter in contest is respecting certain bonds and notes which Pearsall, the executor, in 1799, put into the hands of Skinner, an attorney, for collection. The attorney says, that suits were brought upon these bonds and notes, and he can give no further account of them, except, that some time after the death of Pearsall, he delivered most of them over to Winter, another attorney. They were collected, or the money received by Winter, to the amount of 1,700 dol- lars, who appropriated it to his own use, and became insol- vent. The present plaintiff, Rayner, has sued Winter for the moneys so collected, and obtained a ve'/dict against him ; and he now seeks to charge the estate of Pearsall with that loss, on the ground of negligence in Pearsall. But the facts and circumstances of the case do not appear to afford any sufficient reason for charging the estate of Pearsall with the loss of the money so recovered and appropriated by the attorney. There was no insolvency of the original debtors. The debts were secure at the death of Pearsall. The debtors were then competent to pay, and they did, afterwards, pay to the attorney. The loss arises from the act of the attorney, long after the death of the executor, and the estate of the executor ought not, surely, to be charged for such subsequent defalcations. It is only responsible for plain and strong acts of negligence or misconduct imputable to the executor him- self. There does not appear to have been any pressing necessity for the immediate collection of the debts. The executor acted with reasonable and ordinary discretion and [ * 535 ] care. He left the debts secure, and it was *not until six years after his death, that the moneys were received by an attorney, who abused his trust. The plaintiff Rayner may charge the loss more properly to his own negligence, in nol taking out letters of administration upon the estate of Searing until seven years after the death of Pearsall. He might at any time have compelled the surviving executors of Searing to act, or to renounce. If the debts collected and wasted by Winter, be put out of the case, it is very evident, that PearsaWs estate has nothing for which it ought justly to be accountable to the plaintiffs, provided the list of payments annexed to the an- swer of Lavinia Pearsall be correct. She avers, in her answer, that they are all supported by " receipts taken in a book, and on small detached pieces of paper, now remaining 452 CASES IN CHANCERY. 5SS in her possession." This, being matter set up in defence, or 1818. by way of avoidance, must be proved ; yet, I observe, that ^^-x^-^x in the statement by the plaintiff's counsel of the balance he RAYNER claims, this schedule of payments by Pearsall, the executor, p EA Rs ALL is assumed to be correct. If it be so, there is an end to the claim, supposing PearsaWs estate not to be chargeable with the moneys collected and misapplied by Winter. The case, at last, resolves itself into this point, whether it be necessary or discreet to subject the defendant Lavinia P. tc the trouble and expense of accounting, by proving all those receipts taken by the executor, considering the obscurity and difficulty which the lapse of time must have thrown over the transactions. The perplexity and hardship of accounting is greatly increased in the case of an administrator de bonis non of an executor of the assets sought to be recovered. There is very good reason to believe, from an attentive examination of the pleadings and proofs, that no bahmce could be found due from the estate of Pearsall, even if an account was to be decreed. And if that should happen to be the case, there is another serious difficulty in the way. Lavinia Pearsall avers, that *she has duly administered the estate of PearsaU, [ * 586 ] left unadministered by the prior administrator, and that she had distributed the small surplus of assets, after payment of the debts, which surplus would hardly pay the expense of the reference. It was only 81 dollars, exclusive of some furni- ture distributed among the representatives of Pearsall. The plaintiff Rayner, who administered upon the estate of Searing in 1811, waited five years, and suffered this distri- bution of the estate of PearsaU to be made, before he filed his bill, and he now calls upon Lavinia P. to account for the administration of Pearsall, as well as of her own, twelve years after his death. In Ray v. Bogart, (2 Johns. Cas. 432.) the Court of Errors confirmed a decree of this Court, dismissing a bill for an account, by reason of delay and lapse of time, and the death of parties, and the probable loss of papers, though the real laches in that case was only for eleven years. The case of Sturt v. Mellish, (2 Atk. 610.) is a strong one to show the unwillingness of the Court to decree an account, when the transactions have become obscure and entangled by delay and time. There is no certain and definite rule on the sub- ject. Each case must depend upon the exercise of a sound discretion arising out of the circumstances. My conclusion is, that in this case it would be oppressive, and without any beneficial result to either party, to order an account to be taken ; I shall, accordingly, dismiss the bill, as to the defend- ant Lavinia P.. without costs ^ ,. , Decree accordingly. 453 587* CASES IN CHANCERY. 1818. OONSEQ.UA FANNING. *CoN,'3EQUA against FANNING and Others. [Referred to, 2 Sandf. Ch. 127. Reversed, 17 Johns. 51*.] On a re- hearing, the cause is open to the party who petitions for the re- hearing, only as to those parts of the decreefcomplained of in the pe- tition ; but as to the other party, the cause is open as to the whole matter. An order of reference, for account, before a master, cannot be more ex- tensive, than the allegations and proofs of the parties. Where the charges in the bill are specific, setting forth the items of the account, with their dates, on an order of reference for an account, the inquiry is not open beyond the special matters charged ; although the bill may contain a general charge at the conclusion, and a prayer for " a full account concerning the premises." In all questions arising between the subjects of different states, each is to be considered as a party to the laws and authoritative acts of his own government. If a merchant abroad sends goods to a merchant here, by his order, or by that of his agent, which are received with the invoice, and accepted without any objection at the time, he cannot, afterwards, object that the articles were overcharged in price. Where a consignee of goods sells some of them on credit, and settles with his consignor, and pays him the full amount, he cannot, after- wards, claim to be reimbursed for any part, on the ground of a bad debt made in the sale ; there being no- fraud or mistake in the settlement. Unsettled accounts do not bear interest. Where a balance of an account is paid without any charge of interest, it cannot, afterwards, be demanded. Interest is payable according to the laws of the country where the debt is contracted and to be paid. Where a Chinese merchant consigns goods to a merchant in New-York, for sale, which are delivered at Canton, to the agent of the JV*eit>- York merchant, who neglects to remit the proceeds to the consignor, the latter is entitled to interest on the amount according to the law and custom of China, being twelve per cent. ^ PETITION for a re-hearing. The bill stated, that the wM*er26. '" plaintiff, a native merchant of Canton, in China, on the 22d of December, 1807, shipped on board the John and James, at Canton, a cargo of teas, valued at 19,837 dollars and 77 cents, and consigned the same to the defendants. Edmund Fanning, Henry Fanning, and Willet Coles, being partners in trade, owners of vessels, and factors and commission mer- chants, to sell for the plaintiff, and which were received by the defendants, as his factors. That, on the 24th of De- [ * 588 ] cember, 1807, the plaintiff shipped on board the *Hope and Atahuatya, teas and nankeens, to the value of 29,135 dollars and 63 cents, and consigned the same to the defendants, for sale, and who received the same as his factors. That the defendants, by their authorized agent, Obed Chase, on the 454 CASES IN CHANCERY. 588 19th of January, 1811, gave the plaintiff a promissory note, 1818. dated at Canton, for 35,717 dollars and 50 cents, payable sixteen months after date, with interest at twelve per cent., which is the lawful and customary rate of interest at Canton, which note is still unpaid, and was given for the goods sold and delivered to the defendants. That, in December, 1809, John Smith Crary and William E. Nexs-en, as lawful attorneys and agents of the defendants, gave, at Canton, a promissory note to the plaintiff, for 39,690 dollars and 63 cents, payable fifteen months after date, with interest, after the same should become due, at twelve per cent. ; which note was unpaid, and seven months' interest due thereon, when the said Crary, as agent of the defendants, gave the plaintiff a note for the interest then due, being 2,910 dollars and 64 cents, payable in twelve months, with interest at twelve per cent., which note is wholly due and unpaid. That, on the 25th of No- vember, 1810, the plaintiff snipped on board the Chinese, teas and cassia, to the value of 64,828 dollars and 65 cents, consigned to the defendants, to be sold, and the proceeds remitted to the plaintiff, and which goods were received by the defendants, as the factors of the plaintiff, and sold. That, on the 29th of November, 1810, the plaintiff shipped on board the Hope, teas and nankeens, to the value of 6,370 dollars and 21 cents, consigned to the defendants to sell, and remit the proceeds, and which were received and sold by the defendants. That by an agreement between the plaintiff and the defendants, in relation to their receiving and selling the goods, so consigned to them as factors, they were to sell the same with all reasonable expedition, and for the best prices, and for a reasonable reward to be retained, and to remit the proceeds, *in specie, to Canton ; and for any unreasonable delay the defendants were to pay twelve per cent, interest, from the time such sales and remittances could reasonably have been made, that being the rate of in- terest where the plaintiff resided, and where the contract was to be fulfilled by the remittances. The plaintiff charged, that the defendants received all the goods so shipped, and sold them, and received the proceeds, and have retained, or wasted them, or lost part by their negligence, and have refused to render an account thereof, and remit the proceeds : That it was the agreement, or course of dealing, between the plaintiff and the defendants, that for all moneys due to him from them, they should pay to him twelve per cent, interest from the time of their default. That, on the 6th of February, 1806, Acors Sheffield, at Canton, gave the plain- tiff a note for 4,080 dollars and 81 cents, payable in fifteen months, with interest, afterwards, at twelve per cent. ; and 455 639 CASES IN CHANCERY. 1818. which note not being paid, the plaintiff, afterwards, on the v^-\^^x 12th of November, 1807, delivered it to the defendant E. F. CONSEQUA for collection, and to account to the plaintiff for the same ; FANNING. tnat &" & received the note, in behalf of the defendants, to collect, and has never accounted to the plaintiff for it, and they have either collected the money, or lost it by their gross negligence, and have refused to account for it, with the in- terest. That the defendants, between 1805 and this time, became indebted to the plaintiff, in various other large sums of money, amounting to 160,000 dollars, for teas and other goods, sold and delivered to them by the plaintiff; and for teas and other goods, consigned, &c. &c. Prayer, that the defendants be decreed to come to a full account with the plaintiff, concerning the premises, and to pay to him what shall be found due, &c. The defendants, in their answer, denied that- they were, at the times mentioned in the bill, general partners in trade ; * 590 ] but admitted that they were jointly concerned in ^shipping, importing, and selling on commission, divers cargoes of mer- chandise, &c. They stated various matters in defence, and various counter claims, by way of deduction and set-off, which it is unnecessary to detail ; the material facts will sufficiently appear from the decretal order and opinion of the Court Decretal order. The cause having been brought to a hearing, on the pleadings and proofs, the Court, on the 30th of September, 1817, made the following decretal order: That it be referred to a master to take an account between the plaintiff and defendants, touching the matters -in the pleadings mentioned ; and that, in taking such account, the master charge the de- fendants with the goods in the pleadings mentioned, shipped by the plaintiff, on the 22d of December, 1807, in the ship John and James, amounting, according to the invoice, to 19,837 dollars, 77 cents, consigned by the plaintiff to the defendants, and by them received to sell and dispose of for the plaintiff; and, also, charge the defendants with the goods, in the pleadings mentioned, shipped by the plaintiff, on the 24th of December, 1807, in the ship Hope, and in the ship Atahualpa, amounting, according to the invoice price, to 29,135 dollars and 63 cents, as for goods consigned by the plaintiff to the defendants to sell for the plaintiff; and, also, charge the defendants with 35,71 1 dollars and 50 cents, upon the foot of a promissory note, in the pleadings mentioned, dated the 19th of January, 1811, given to the plaintiff by Obed Chase, as the authorized agent of the defendants, pay- able sixteen months after date ; or, if the master should be 456 CASES IN CHANCERY. 590 of opinion that Obed Chase was not duly authorized to give 1818. it, that, then, the master charge the defendants with that sum, ^**-^~+^ as for goods sold and delivered by the plaintiff to the defend- CONSKQUA ants, on the 19th of January, 1811, at a credit of sixteen FANNING months ; and, also, charge the defendants with 36,690 dollars, 63 cents, upon the foot of a promissory *note, in the pleadings [ * 591 | mentioned, given the 9th of December, 1809, to the plaintitf, by John Smith Crary and William E. Nexscn, as the author- ized agents of the defendants, payable fifteen months after date ; and, also, charge the defendants with only so much of the goods in the pleadings mentioned, and shipped by the plaintiff, on the 25th of November, 1810, in the ship Chinese, amounting to 64,828 dollars and 65 cents, according to the invoice price, after deducting 43,025 dollars and 87 cents, being so much of the shipment as the plaintiff appears to have assigned to William Baring and others, in the plead- ings mentioned, and that the sum of 21,798 dollars, 78 cents, being the residue of the last shipment, after deducting the assignment to Baring and Co., be charged as for goods con- signed by the plaintiff to the defendants, and by them received to sell for the plaintiff; and, also, charge the defendants with the goods, in the pleadings mentioned, shipped by the plain- tiff, the 29th of November, 1810, in the ship Hope, amounting, according to the invoice price, to 6,370 dollars, 21 cents, as for goods consigned by the plaintiff to the defendants, and by them received, to sell for the plaintiff; and, also, charge the defendants with interest, at the rate of twelve per cent., upon all the items before mentioned, from such times as the said sums ought to have been paid, that is to say, in case of goods sold, from the expiration of the term of credit ; and in case of goods consigned, from the times the proceeds ought to have been remitted, having regard to the course of such dealings ; and in case of promissory notes, from the time of payment therein specified. And, also, charge the defendants with 900 dollars, being so much of the amount of the prom- issory note, in the pleadings mentioned, given by Acors Sheffield to the plaintiff, and by him placed in the hands of the defendants to collect, as was received by the defendants ; and, also, such further sum, as it shall satisfactorily appear to the master, the defendants might have ^received, if they had [ * 592 ] used due diligence in collecting it, with lawful interest, from the time the same was received, or might have been received, as aforesaid. And that the plaintiff be allowed, in such ac- count, all such further sums as shall appear that the defend- ants ought to account for and pay, by reason of any dealings and matters in the bill mentioned, with such interest as the nature of the case, and the course of the dealings between VOL. III. 58 457 592 CASES IN CHANCERY. 1818 CON st QUA V. FANNING. Master's re- port. Objections, [ * 593 ] the parties, shall render just. And that the master make all proper allowances to the defendants for all remittances and payments made by them to the plaintiff, or to others for his use, and by his authority ; and that the master be at liberty to examine the parties, under oath, on interrogatories, and such other witnesses, not already examined, as either party may produce. The master made a report, on the 31st of January, 1818, in which he stated the gross amount of the sales of the cargoes mentioned in the decretal order, and the charges thereon, and the net proceeds thereof, and the amount due from the defendants to the plaintiff; and that he had charged the defendants with the net proceeds of the different con- signments particularly mentioned in the decree, and with the goods sold, and with the amount of the notes ; and that he had charged twelve per cent, interest on the items, except the last, in which the remittance was made in due time ; and that he had credited the defendants for all remittances and payments by them on account of the said consignments and sales, and with all just allowances, and had calculated interest at twelve per cent, on the credits ; leaving a balance due to the plaintiff, for principal and interest, to the date of the report, of 104,457 dollars and 91 cents. The petition for a rehearing stated the following objections to the decretal order : 1. Because it does not direct a general account to be taken between the parties : 2. Because the decretal order limits and circumscribes *the charges to be made by the defendants against the plaintiff, to remittances and payments by them to the plaintiff, and to others, for his use, and by his authority ; and the master has decided, and the defendants cannot be allowed for any charge or matter of account, unless it be shown to be a remittance or payment, specially and specifically applied to one or other of the matters with which the defendants are charged and made accountable by the decree ; by reason whereof, matters of account to a very large amount, and, as the defendants believe, to a sum not less than 86,000 dollars, are wholly excluded from the said account, and the defend- ants are barred from the benefit thereof: 3. Because, the defendants are charged with a promissory note given by Obed Chase to the plaintiff, for 35,711 dollars and 50 cents, or with goods sold and delivered to the defend- ant, to that amount, which, by the terms of the decree, as it relates to the defendants, is substantially the same thing ; whereas, by the pleadings and proofs, the defendants are not justly liable to be charged with the same in either shape ; but only as for gx)ds consigned to the defendants, by the CASES IN CHANCERY. 593 plaintiff, to be sold for his account, and in this way they are 1816. willing to account. ^^-^s-*+^ 4. Because the defendants are charged with interest at CONS* QUA twelve per cent, per annum, upon the items in the decree p AK x mentioned, or notes, or goods sold by the plaintiff to the defendants, and consigned to the defendants to be sold, from the expiration of the credits, in the case of notes and goods sold ; and in the case of goods consigned, from the time when the proceeds ought to have been remitted ; whereas, the de- fendants ought not to be charged with any greater interest in the case of consignments, where the contract was made here, than is allowed by the law of this state. 5. Because the defendants are charged with so much of the goods in the pleadings mentioned, and shipped by *the plaintiff to the defendants, on the 25th of November, [ * 594 j 1810, on board the ship Chinese, as would amount to 21,798 dollars and 78 cents, invoice price, being part of the invoice of 64,818 dollars and 65 cents, whereof 43,025 dollars and 87 cents appeared to have been assigned to Baring and Co. ; which is erroneous, because no part of the said cargo was specifically assigned to Baring and. Co, ; but. another and different shipment made by the plaintiff to the defendants, in a former voyage of the ship Chinese ; and the shipment to Baring and Co. was in 1809, the amount of the invoice of which was the sums last mentioned, and which shipment is not stated in the plaintiff's bill ; but the facts are set forth at large in the answer. 6. Because the defendants are directed to account for the proceeds of the said invoice of 64,828 dollars and 25 cents, deducting only 43,025 dollars and 87 cents, part thereof; whereas, the defendants are bound to account to Baring and Co., or their representatives, for the full sum of 43,025 dollars and 87 cents, whether the invoice- would amount to that sum or not, and the defendants are sued in the Circuit Court of the United States ; and there is reason to apprehend that they will be compelled to account for the full sum, provided there should be a balance in their hands to that amount due to the plaintiff, including the invoice assigned. A rehearing having been granted, the cause was argued Septentber 2! by Riggs for the plaintiff, and T. A. Emmet and Brackett, a for the defendants. THE CHANCELLOR. There is considerable variation in the On a rehear objections made to the decree, as stated in the petition for a ^n\l the par ty who petition. "or the rehearing, only as to those parts of the decree complained of in the petition; but as o the othe party, it is open as to the whole matter 459 595* CASES IN CHANCERY. 1818. rehearing, and in the points on which the cause was re-argued. v^x-x^*^ But I apprehend the rule to be well settled, *that upon a CONSEQ.UA rehearing, the cause, with respect to the party who petitions FINING to renear ) is open only as to those parts of it complained of in the petition ; though, as to the other party, it is open as to tho whole matter of the decree. The rule was so declared by Lord Chancellor Cowper,'m Rawlinsv. Powel, (IP. W*n&. 300.) and it is to be met with in all the subsequent treatises on the subject. I shall, therefore, take up the objections, as they were stated in the petition on which the rehearing was granted. 1 . The first objection is, that the decree did not order a general account to be taken and stated between the parties, and that the decree was confined to the specific charges stated in the bill. The second objection was an amplification of the first, and applied to that part of the decree which directed all proper allowances to be made to the defendants for remittances and payments, without allowing them to go at large into all and every matter of account. The defend- ants now seek, upon the rehearing, for a general account of all transactions between the parties, from the first day of January, 1805, to the filing of the bill. It is a little singular, that this objection should not have been made before the cause went to the master. A whole year elapsed between the time of pronouncing the decree and the coming in of the master's report, taken upon the foot of the decree. It seems not to have been discovered, that such a general account was wanting, until after a large balance had been found and stated against the defendants. But the point is now open for reconsideration, and it will be requisite to examine the pleadings closely, to see what are An order of really the matters in issue. I take it for granted, that the account 6 before or( ^ er f r a reference must be founded upon the pleadings a master, must and proofs, and that it cannot be made more extensive than [he ^pleadings the al ^g atct and the probata of the parties. and proofs, and The bill is founded upon specific charges. There are inTrTexte^stve none of an earlier date than December, 1807. There are r*5961 *various items distinctly set forth, and though the bill, pear than the aiiega- the conclusion, charges, that the defendants were indebted ttons and proofs j n various other large sums of money for goods sold and de- ' wfeAe livered, and for goods consigned for sale, yet this general charges in the charge seems to have been thrown in for greater caution, and setting Spe forth intended only to cover any mistakes and omissions in the items of the ac- particular specification. This is evidently the good sense dates, cTan or- a nd logic of the pleading, and the prayer, that the defendants Jer of refer- ence, for an account, the inquiry is not open beyond the special matters charged; though the bill ma r -ontaiu a ^eneral charge at the conclusion 5 and a prayer " for a full account concerning the premises 460 CASES IN CHANCERY. 51* should come to a full account " concerning the premises," must be applied to the charges in detail, and to which only the defendants were called upon to answer. Neither the answer, nor the proofs, will warrant an in- '. , i i i -11 FANNING. quiry, beyond the special matters charged in the bill. The defendants, after denying all general copartnership, and all joint concern, other than "in the shipment, importa- tion, and sale on commission, of cargoes of merchandise," state, that the plaintiff " had been given to understand that the defendants were willing, on their joint account, to receive teas and other goods to sell on commission for the plaintiff," and that, " with a view to such sales on commission for ac- count of the plaintiff, an agreement was made and entered into by one of the defendants, on their behalf, with the plaintiff." The agreement here referred to, is stated, in the answer, to have been made in October, 1807. This is very decisive proof that the defendants do not entitle themselves, by their answer, to go farther back than the date of the specific charges in the bill ; and any attempt to go farther would only be to involve the charges in question in a laby- rinth, from which nothing could arise but embarrassment and delay. And. indeed, in another part of the answer, after meeting all the charges in the bill, they expressly deny " that they are indebted to the plaintiff, between December, 1805, and the filing of the bill, otherwise than is above stated, for any goods sold or consigned to them. *After giving a very particular answer to every particular [ * 597 ] charge, the defendants give a detail of their counter claims against the plaintiff, and it is to be seen how far they are embraced by the decree. In the first place, they claim commission on disbursements on the teas sold, on account of the plaintiff, and shipped on board the vessels mentioned in the bill, and they also claim for duties guarantied and paid on the teas consigned to them, and for freight of teas- shipped in the ship Chinese, on her second voyage, and the premium for insurance thereon, and for freight of teas shipped on board the Hope, in 1810, and for a further charge of freight of the cargo by the Hope, and for charges of remitting 30,000 dollars in specie. I should apprehend that these charges were all reached by the decree, which could only have intended to make the defendants an- swerable for the net proceeds of the cargoes consigned to them, after making them all just allowances. The petition for a rehearing does not state, nor has it been shown or pretended, that any of those charges were not received, as competent subjects for examination, under the decree. I presume they do not form any part of the ground of com- 461 397 CASES IN CHANCERY. 1818. plaint; nor have the defendants specified the particului ^' only, that "matters of account to a large amount" are excluded. We ought, at least, to have been so far in- formed of what those matters of account consisted, as to have been enabled to form some judgment of their pertinency or application to the subject matter of the suit. It would be an act of great indiscretion, if not of positive injustice, to interfere with a decree upon such a loose and general allegation. There are other counter claims set up in the answer, which seem to be utterly groundless, even if the decree was to embrace them. [ * 598 J #1 . The defendants claim a sum for the difference between ten per cent, per annum, under the agreement which they set up, and the legal interest of this country, on certain notes, the amount of which they were prevented from remitting, for one year, by reason of the embargo. The solid objection to this claim is to be found in the principle declared in Comvay in all ques- y. Gray, (10 East, 536.) that in all questions arising between lions arising be- ,/ f> \ / Trp , * j. i ^jli 77- tween the sub- "* e subjects oj different states, each is a party to the public jects of differ- authoritative acts of his own government, and he is as much ent states, each i j j ./ i yt / j _f 7 is to be deemed incapacitated jrom making the consequences of an act oj his A party to the own state, the foundation of a claim to indemnity upon a laws and au- /. 7- , 7 771 / 7 ^177 7 thoritative acts joreign subject, as he would be, ij such act had been done im- of his own gov- mediately and individually by himself. Lord Ellenborough ernment. . , x , ^ ,, ( , J ~ ,,. , j m said, that this same principle was established in louteng v. Hubbard; (3 B. 8f Puller, 291.) and, indeed, we find the principle declared in every period of the English law, that every subject is to be deemed a party to the laws of his own government. (Bro. Abr. tit. Parliament, pi. 41. Dyer, 23. b. pi. 148. 9 Co. 107. a. Lord Mansfield, in Wadham v. Marlowe, cited in 8 East, 314. note.) The force of this doctrine must be specially felt and acknowledged in this country, where the acts of the government are practically, as well as theoretically, the acts of the representatives of the people. 2. The defendants further claim, in their answer, the heavy sum of 17,085 dollars and 94 cents, for overcharges on teas and nankeens shipped to them in 1809 and 1810, and which sum was over and above what equal qualities of the same articles could have been furnished for, at the time if a merchant t nev were shipped. If the goods, in this case, were con- abroad send J foods to a mer- chant here, by his order, or that of his agent, which are received with the invoice, and accepted without objection at the time, the merchant here cannot, afterwards, object, that the articles were overcharged n price. 462 CASES IN CHANCERY. 596 signed to the defendants to sell on commission, they had no 1818. right to complain of the charge, for it was no injury to them, and the plaintiff was in the exercise of his perfect right. If the goods were sold and delivered to the defendants, why did they accept of them ? Why did their agent at Canton accept of them, in the first instance ? The *invoice always [ * 599 ] accompanied the shipment and delivery of the cargo, and they affirmed the charge, by the acceptance of the goods. The date of the charge, according to the schedule annexed to the answer, is in August, 1812. The pretension is ground- less, in every view ; the charge is too loose and at too late a period to be deserving of credit. It does not even appear, whether the goods were shipped on sale or on consignment, nor is there any specification of particulars, as a particle of proof to give color to the suggestion. 3. Another charge is, that the defendants paid one David Bentock the difference of value of 900 pieces of nankeen, shipped to them as for long nankeens, and sold as such, and which turned out to be pieces of the short kind. The charge is of the date of June, 1811, and there is no proof, either of the defect or of the payment. 4. The defendants further charge near 4,000 dollars for the difference of interest, between 10 and 12 per cent., ex- acted from their agents, Crary and Nexsen, on sundry prom- issory notes paid by them to the plaintiff; and they rely upon an agreement, stated to have been made by Edward Fanning, on behalf of the defendants, with the plaintiff, in October, 1807, by which 10 per cent, interest only was to be charged. The only agreement proved, is one of the 8th of November, 1807, made between the plaintiff and Edtvard Fanning, one of the defendants. It differs materially from the one set forth in the answer, and there is no evidence in the case, that Fanning was authorized to make such an agreement on behalf of the defendants. We have seen that the defend- ants, in their answer, deny any copartnership between them- selves, except for the single purpose of the shipment, im- portation, and sale on commission, of cargoes. One of the copartners, for such a special purpose, had no authority to bind the rest to such an agreement as this, which was clearly not within the scope and purview of the *partnership. Nor [ * 600 does it appear, that the agreement, as proved, was ever acted upon by the parties. It related to a ship, " to be built at New-York, of 350 or 400 tons burthen, for the Chinese trade," and the plaintiff was to furnish one third of the cargo, and the defendants goods for the residue. The de- fendants were to have goods to the amount of 12,000 dollars consigned to them to sell, and they were to retain the net 463 600 CASES IN CHANCERY. 1818. proceeds, free of interest, as long as the ship should continue ^*r-^~*^ in the China trade, and they were to carry the plaintiff's cargo CO.VSEQUA free of freight. G None of these provisions were ever carried into effect; no ship was ever built and put into the Chinese trade, on the foot of this agreement. The plaintiff was, also, to do the business of the ship at Canton, without charging any com- mission, and the defendants were to sell the cargoes of the ship at. New-York, free of commission. The charges, in the answer, of freight and commissions, are directly repugnanl to these provisions, and afford the most satisfactory proof that the agreement was never observed or regarded as binding. The defendants admit, that the lawful and customary rate of interest, at Canton, is 12 per cent.; and all pretence of a claim to be charged a lower rate of interest, on the ground of this agreement, is clearly without foundation. Where a con- 5. A further charge in the answer is, for the plaintiff's sefi" ee soineof proportion of bad debts made by the defendants, on the sale them on credit, of teas on their joint account, to the amount of 2,060 dollars ?he d S coS g no^ and 71 cents. But the answer admits, that the plaintiff had and pays him charged, and had " received payment from them of that lie cannot, U af- sum j " this act certainly closed the inquiry, and the defend- tcrwards, claim ants must be considered as assuming those debts to themselves. to be reimburs- rpi i j u i j T c * ed, for any part, 1 here would be no end in dealings, or saiety to persons. 11 on the ground a charge of this kind was to be indulged, after the debt itself made ^n Ihe na o! been assumed and paid, and when no fraud, or mistake, [ * 601 ] is suggested. It *is easy to perceive how very precarious sale, there being the admission of such a principle would leave the concerns take In' the'set- f the foreign creditor in a distant region of the globe, who Ornv nt. has no means of knowing the debtors, or of guarding against imposition. The same observations apply to another charge for a bad debt on a sale of tea, received 'by the Chinese on her secend voyage, and sold to J. D. Miller. The cargo was shipped in November, 1810, and this charge is of the date of March, 1813, and the defendants admit in their an- swer, that they " paid and settled with the plaintiff for this debt," and, therefore, the claim is to be " reimbursed " 6. The defendants advance another charge of 6,583 dollars and 56 cents, being the difference of market price of certain seal and other skins, shipped by the defendants and consigned to the plaintiff, and received by him from their supercargo, in March, 1807, and for which, they say, the plaintiff " was to allow as good a price in cash as any mer- chant in Canton would give, and that the plaintiff did not allow or account with them but for a very inferior price. 1 ' This cargo was delivered in 1807, and the charge bears date 464 CASES IN CHANCERY. 601 as late as 1812. and admits, that the parties had accounted 1818. together for the skins. To open this inquiry, after the lapse v^^-v^^/ of so many years from the delivery, and after the settlement CONSEQUA which the very terms of the charge imply, would be very FANNING. unusual, and hazardous to the cause of justice. There has not been a particle of proof in support of the charge, and it bears a portion of hardihood in its very features. 7. Another charge in the answer is of the sum of 14,639 dollars and 94 cents, for interest due from the plaintiff, on sundry large sums or balances in his hands, due and unpaid by the plaintiff, from 1806 to 1812. This is a most extraor- dinary, as well as a most extravagant item. Unsettled ac- Unsettled ac counts do not bear interest, as of course, until liquidation, ^""interest" The charge assumes, that the balances were paid in 1812. No interest subsequent to that period is claimed. *Why was [ * 602 ] the principal received without interest, if the latter was due ? Was there ever an account unravelled for such a purpose, after the balance had been received ? There has been no explanation offered; and when would accounts be closed, Where aba j i-,- ,. -r i L -ii j i ance ' an a(> and litigations cease, it such inquiries are to be permitted? couil t i s pa ;d The receipt of the balance is good proof that no interest was th ut . . * due by the course of the dealing, or that it was received, or estTfcannot'be was waived ; and such a presumption must stand good, until mad after put down by contrary proof, of which there is none. 8. The defendants further charge the sum of 12,877 dollars and 51 cents, for freight of the cargo on board the ship Chinese, from Canton to New-York, being the plaintiff's first consignment, together with the further sum of 2,366 dollars and 43 cents, for the premium of insurance and com- missions respecting that cargo. There is no charge in the bill respecting this cargo, which was the one assigned to Baring and Co., and for which the defendants admit in their petition for a rehearing, that " they are bound to account to Baring and Co., or their representatives, for the full amount." They are bound to account only for the net proceeds, and, consequently, these charges for freight, and insurance and commissions, are to be deducted from those proceeds, and these items are to be settled with Baring and Co., -and not with the plaintiff. Nothing can be plainer than this course, and nothing more unreasonable than to make these charges against the plaintiff, after the admission, and the proof that he is not the owner of the cargo, nor of the proceeds. 9. The next charge is 144 dollars and 51 cents, for teas which proved to be of a bad quality, and which the defend- ants had sold for the plaintiff, and which sum " they were obliged to refund by reason thereof." This charge bears date as late as April, 1813, long after all the shipments in VOL. III. 59 465 603* CASES IN CHANCERY. 1818. question, and we have no explanation of the case, nor upon *^^~~.s-~^~s what grounds the defendants were obliged to refund *tha1 CONSEQUA sum, or to whom, or by what authority, or how the sale was FAN-SING conducted, or what assurances, or what sample was then afforded. The charge is equally suspicious and unsupported. 10. The defendants, in addition to all these unfounded charges, state, that the plaintiff purchased of them, in 1807, 2,200 piccols of sandal wood, amounting to 52,800 dollars, and " debited to the plaintiff, and for which he ought to pay, or account to them." The proof that appears to bear upon this charge, is a certificate signed by the plaintiff, and the defendant Edward Fanning, dated the 8th of October, 1807, stating, that the latter had sold to the former a cargo of sandal wood, laden on board the Hope, at the Fegee islands, and soon expected to be delivered, and to be " payable in cash." It would be a little extraordinary, if such a cargo, declared to be payable in cash as early as 1807, should have been delivered, and the payment deferred to this day. The charge does not appear to be announced, at the end of the answer, with the confidence belonging to truth ; and after all the various dealings and payments made by the defendants, and confessed in the answer, I entertain an entire conviction that this charge is unfounded. The answer does not say, that the cargo was not paid for, but only that the plaintiff ought to pay, or account to them. The testimony of Obed Chase relates to a subsequent sale of sandal wood to the plaintiff, in November, 1810; he was also at Canton, in 1807, when the ship arrived from the Fegee islands, and he resided at the same house with Fanning, for fifty days, and they had frequent conversations together, and not a syllable of testi- mony is given of any complaint by Fanning of non-payment. He makes no mention of any such difficulty, nor do we hear a complaint, or a word as to the non-payment for the sandal wood, in 1807, until we meet with the charge thrown in as a make-weight, at the end of the answer of the defendants [ * 604 ] in this cause. The sum was of too great *consequence to have been forgotten, even in the India trade. If that cargo had really never been paid for, it is sufficient to say, that it was a debt due to Fanning, and not to the defendants, for they have expressly renounced, in their answer, all copart- nership concerns, except in the limited terms which have been mentioned. . There are two other specific charges in the answer, which remain to be disposed of. One of them is demurrage of the ship Hope, detained by the plaintiff, and this charge rests upon the testimony of Captain Chase. He says, that when he arrived at Canton^ iu 466 CASES IN CHANCERY. 604 November, 1810, with a cargo of sanJal wood, he was de- tained from the 20th of December to the beginning of January following, in consequence of a dispute between him and Consequa, as to the price, arising from the quality of the wood. It seems, that Chase judged it expedient, or neces- sary, at last, to comply with the terms of the plaintiff, and the time consumed in that dispute the defendants charge as demurrage. Such a charge is without precedent. Demur- rage means a delay, at the instance of a merchant, for further time to load or unload, or to sail with convoy, and for which he covenants to pay a daily sum. The ship Hope was not detained at the instance or for the benefit of the plaintiff. The delay was the consequence of a dispute between the parties, as to the price of an article, and may have arisen as much from the obstinacy or unreasonableness of Chase as of Consequa. The merit of that dispute is not now the point of inquiry. It is certain that the charge, as it stands, is without the shadow of foundation ; nor does the charge and the proof correspond, in any degree. The detention spoken of by Chase, was in 1810, and he says it did not exceed 25 days, and he should suppose 45 dollars a day to be a . reasonable demurrage for the Hop .. The charge (see ac- count, No. 1.) is of the date of August, 1812, and is as *follows : " Demurrage on ship Hope, 44 days, at 150 dol- [ * 60(i ] lars 6,600 dollars." It would really seem as if a number of these groundless charges had been fabricated, after all the business of the parties had terminated, for the mere purpose of imposition. The other charge is for " costs, freight, and expenses of a cow sent to the plaintiff." The receipt of this cow is admitted in a letter of the plaintiff, of the 30th of November, 1810, (being all the proof which we have upon the subject,) in which he says, " I thank you very much for your attention in sending me so handsome a cow and calf." Considering the terms of this acknowledgment, the trifling value of the article, and the extensive business in which the parties were engaged, I should infer, that this cow was intended, and re- ceived, as a gift, and that the defendants had, afterwards, most ungraciously turned it into a charge. It appears, from their account, No. 1., that the date of the charge of the cow is the 31st of December, 1812, and is in these words: "cost, freight and expenses of a cow sent per Chinese, May, 1810, 250 dollars." Here was an interval of above two years and a half, between the shipment of the cow and this extravagant charge ; and the letter of the plaintiff, to which I have re- ferred, contains another and a more explicit act of kindness between the parties, and gives additional force to the con- 467 fi05 CASES IN CHANCERY. 1818. struction which I have drawn. The plaintiff, on behalf of ^r~-^s~+^s his son, acknowledges a "very handsome comeshavv," from CONSEQ.UA the son of Edward Fanning ; and he courteously meets the t'A/MNG. civility, by sending " some little comeshaw," in return, and declaring that he should be " very happy to see Mr. Fanning in Canton." Without some farther proof, I should never consent to the charge in question, considering all the circum- stances under which it is presented. I have thus gone through a laborious examination of all the charges which the defendants have specified in their f * GOG ] ^answer, and such of them as are tenable are shown to bo embraced by the terms of the decree. It is not stated, or alleged that any of the charges which are considered to be admissible subjects of inquiry, were excluded before the master ; nor do the defendants show, or specify, the charges which they wish to establish. We have a right to presume that those were deemed the most material and best-founded charges, which are minutely detailed in the answer, and which we have had under review. Can it, then, be fit or discreet, or would it be reasonable or just, after the samples which the defendants have given us, that a general account should be decreed of all matters and claims whatsoever, without any explanation of what they consist, or how they arose, or upon what testimony they rest ? It would be to delay, or defeat justice, by a fruitless and vexatious inquiry. While in this stage of the cause, I may notice, once for all, the charges which have been made, and the philippic pronounced at this rehearing, as well as upon the former argument, against the tyranny and oppression of Coruequa, and the other Hong merchants, at Canton. What was said by Captain Chase (which I shall notice more particularly hereafter) affords the only, but very insufficient, color for the accusation. Judging from the pleadings and proofs in this cause, I should be led to conclude, that the plaintiff was a man " more sinned against than sinning." No general charges, unsupported by specific and pertinent testimony. can have any influence in the case. It may be, that the Chinese, considered in respect to their general manners and morals, are, as I incline to think they are, mean and semi- barbarous ; but I have no doubt that there are numerous individuals among them, who are kind, beneficent, and just. If I am not mistaken, instances of such characters are men- tioned by Bell and Barrotv, in their accounts of the two most interesting embassies that ever went from Europe to [ * 607 ] China. We may *as well suppose Consequa to be of this class as of any other. His letters, which have been read, so far from affording ground for crimination, may rather be 4G8 CASES IN CHANCERY. GOT cited as proofs of a frank and manly character. We have 18 IS. seen, in the case of his son, that he evidently cherishes tender v^^-x^-^,- feelings. He says, indeed, in his letter of the 21st of October, CONSEQUA 1809, that he had charged compound interest on all notes F M ^' H ,. due for above a twelvemonth. This is nothing more than the practice of all those merchants who make annual rests in their accounts ; and we have the authority of very high names to say, that there is nothing intrinsically unjust in such a charge. It is no wonder that the plaintiff' should think so seriously of the failure to pay interest, since the non-payment of interest subjects the debtor, by the Chinese laws, to corporal punishment. (Staunton's Ta Tsing Lew Lee, s. 149.) He, also, in that letter, admits, that he insisted on twelve, instead of ten, per cent. ; yet the answer of the defendants acknowledges that twelve per cent, is the lawful and customary interest of his country. He admits, also, that the agents of the defendants used every exertion and argu- ment to induce him to receive ten per cent. ; but he tells them, " I refused, and would have done the same, had either, or all of you, gentlemen, been present, and made the settlement yourselves." When such a man, from such a people, comes, as a suitor, into our Courts, he ought not to be heard with a mist of prejudice hanging over his name, his character, and his coun- try. His claims should be received with candor, and treated with impartiality. It is no more than common justice ; but the sense of our responsibility cannot fail to be more lively, when we recollect that the people to whom he appeals, are in possession of gifts denied to the Chinese ; I mean the blessings of freedom, and the light of science, and the stin brighter light of the Christian revelation. 2. *The next objection to the decree is, that the defend- [ * 608 ] ants are charged with Chase s note for 35,711 dollars and 50 cents, or with goods sold and delivered to that amount, whereas they are not chargeable with that sum in either shape, and ought only to be charged with the same, as for goods consigned to them, to be sold for the account of the plaintiff, and that, in that way, they are willing to account. The bill charges, that Chase gave the notes as the author- ized agent of the defendants, for goods sold and delivered to the defendants. The answer admits the note, but denies that Chase was the agent of the defendants for that purpose. The defendants farther admit, that the goods, for which Chase's note was given, " were delivered by the plaintiff to them, and were intended by the plaintiff as a sale to them ; " but they say, that upon the arrival of the Hope with that cargo, and before unloading, they entered a protest against 469 608 CASES IN CHANCERY 1818. receiving the goods on their own account, but that they should receive and dispose of them on account of the plain- tiff. The only objection here to the decree is, that the de- fendants are charged with the cargo as sold, whereas they are willing to account for it, as consigned to them. The goods are delivered by the plaintiff to them as a sale, and the plaintiff intends the delivery to be a sale. All this is admitted, and the defendants take them under a protest, thai they receive the goods as a consignment, and not as a sale. The defendants have not proved this protest ; and if they had, it would be about as valid and efficacious as a mental reservation to an oath. Of what use was this protest to the plaintiff, who resided on the other side of the globe ? The acceptance and delivery are correlative acts, and if the plain- tiff delivers for one purpose, as he did in this instance to CAase, for the defendants, and the defendants accept, they accept for that purpose, and cannot take for any other. A different construction would banish all sincerity and probity * 609 ] in dealing. It would enable a party *to take the goods, and set up a consignment or a sale as the cargo happened to come to a falling or rising market. < Such a principle would be equally a reproach to the Court who adopted, and to the party who applied it. Indeed, the answer of the defendants evidently considered this defence as feeble, for they provide a set-off, in case they are liable to pay the amount of the note, and specially insist upon the agreement of Fanning, in 1807, for ten per cent., in opposition to the terms of the note, which are twelve per cent. The answer says, that the cargo of the Hope, in this case, was put on board, at Canton, by the plaintiff, without the consent of Chase, further than the net proceeds of the out- ward cargo. How far the cargo so put on board exceeded, or whether it exceeded at all, the proceeds of the outward cargo, is not stated, or averred. There is no precise evidence of any gravamen, even upon the ground taken by the de- fendants. There is something, however, very improbable, and contrary to the most obvious dictates of common sense, in the charge, that the plaintiff forced any part of the cargo on board of the Hope, without, or against the consent of the captain. Would any reasonable man part with his own property, in this violent . way, against the consent of the purchaser, and trust his goods in this country, without any security but a note extorted from Captain Chase 1 All the transactions of Consequa show more method in his madness. The whole accusation is absurd and incredible. If he did do this preposterous thing, how came the defendants so qui- etly to receive 'the goods? Their very acceptance of the 470 CASES IN CHANCERY. (509 goods in this country denies, or waives the violence of the shipment at Canton. But the testimony of Captain Chase does not warrant the accusation. He does not pretend that the cargo which he received was a coerced delivery to him. All that he complains of is the dispute between him and the plaintiff, as to the price of the sandal wood,*and that he did, "as it Avere from necessity," comply with the terms of the plaintiff, and give the note. Yet to show how very fallacious is his memory, he says, the note he gave was for about 20,000 dollars, payable in 18 months ; whereas, it has been admitted to have been for 35,717 dollars and 50 cents, payable in 16 months. But this point need not be pursued further ; for the petition for a rehearing admits that the defendants are responsible for the goods, to the amount of the note, as for a consignment ; and if, instead of a consignment, the act ought to be deemed a sale, there is an end of the question. 3. Another ground for the rehearing is, that by the decree the defendants are charged, on notes, and goods sold and consigned, with interest, at the rate of 12 per cent., whereas the defendants ought not to be charged, in the case of con- signments, where the contract was made here, with any greater interest than the lawful interest of this state. The answer to this objection is, that it is an acknowledged rule, that interest must be paid according to the law of the country where the debt was contracted, and to be paid, and not where it is sued for. The cases cited by the plaintiff's counsel show this. (See, also, Ekins v. East India Company, 1 P. fVms. 395. and 2 Fomb. Tr. of Ey. 442. 446.) The principle is entirely applicable to the case of consignments. The plaintiff consigns a shipment to the defendants, and the cargo is received at Canton by the agent of the defendants, on their behalf. Canton is then the place where the contract is made, and Canton is the place where the debt is to be paid. The defendants admit, in all the cases of cargoes consigned to them, that they were to receive and remit the proceeds, and the interest for which they are chargeable is upon the sum which ought to have been remitted, and to be computed from the default. There is no difference, in prin- ciple, as to this point, between a sale and a consignment. *The contract is equally made, and the debt equally to be paid in China, in the one case as in the other ; and if we should deny to the Chinese merchant his own legal rate of interest on such contracts, we should be doing him an in justice which he would not meet with from the commercial part of Europe. To refuse to enforce such foreign contracts, 471 C>, (SEQ.UA V. F NNING. [*610i Interest is pay able according to the law of the country where the debt is ccn traded, and to be paid. WbereaCVa nese merchant consigns goods to a merchant in New- York, for sale, which are delivered at Canton, to the agent of the J\lew- York mer chant, who neg lects to remil the proceeds t< the consignor he is entitled to interest on the amount accord- ing to the law of China, being at 1% per cent. *61l 611 CASES IN CK \NCERY. 1818. as to interest, say the English books, would put a stop to all foreign trade. 4. The two remaining objections to the decree relate to FANNING * ne allowance made in favor of the claim of Baring and Co., and it is contended, that there was an error in the decree, in supposing part of the 64,828 dollars and 65 cents, being the second cargo of the ship Chinese, was ever assigned to Baring and Co., and that, notwithstanding that error, a sufficient allowance out of the cargo was not made for that claim. This objection is not very intelligible ; but the counsel for the plaintiff concede, that there is a mistake in the decree, in supposing that the assignment to Baring and Co. was out of the second shipment in the ship Chinese, in 1810, whereas, it was out of the first shipment in 1809, and it was the ad- mission of the counsel himself which led me into this error. The mistake in the decree ought to be corrected in favor of the plaintiff, and not of the defendants. The charge in the bill is for the cargo shipped on board the Chinese, in No- vember, 1810, and consigned to, and received by the de fendants. The answer admits the consignment and deliv- ery, and it sets up the assignment to Baring and Co., of the cargo shipped on board the Chinese on a prior voyage in 1809, and which cargo is not in question in this suit. Instead, then, of making the deduction out of the cargo shipped in 1810, to satisfy the assignment, there ought to have been no deduction, and the defendants should have been ordered to account for the whole of that last cargo. There were two shipments by the ship Chinese. The one in f * 612 ] 1809, amounted to *43,025 dollars and 87 cents, the precise amount of cargo assigned by the plaintiff to Baring and Co. The other, in 1810, amounted to 64,825 dollars and 65 cents, and this is the one of which the plaintiff seeks an account. In consequence of a mistake, the decree gives the plaintiff only one third part, instead of the whole cargo consigned to the defendants, in 1810. The defendants ought to account for the 64,825 dollars and 87 cents, and not merely for the 21,798 dollars and 78 cents. In this respect, the decree ought to be corrected ; but in all other respects, it must re- main as it is, and none of the objections taken to it, in the petition for a rehearing, are well founded. Decree accordingly. 472 CASES IN CHANCERY. 61* 1818. WHIPPLE *WHIPPLE and Wife against LANSING AND VAN RENS- LAKMXQ SELAER. [Followed, 8 Paige 465.] A defendant who u charged by the plaintiff as fraudulently colluding with his co-defendant, in regard to the transactions sought to be im- peached, cannot be a witness for his co-defendant ; especially when he has an interest in the cause, arising from his liability for costs, and his ultimate responsibility, if the charge is proved. And the cause, after issue, having been referred to a master, by consent, to take an account, the witness cannot be allowed to be examined before the master, even de bene esse. THE bill stated that the father of the plaintiff's wife died Nailer so intestate, the 28th of September, 1805, leaving her his sole heir, and widow, since deceased. That the plaintiff and his wife were married in June, 1817. That the intestate left a considerable personal estate, more than sufficient to pay all his debts, and died seised of a large real estate. That on the 28th of October, 1805, the defendant Abraham A. Lan- sing administered on the estate, and on the 28th of June, 1806, upon false representations of the sums due, *and which [ * 613 ] had been paid and received, and of the amount of the debts of the intestate, &c., fraudulentry procured . an order from the surrogate to sell the real estate ; and exhibited an account to the surrogate, in which he charged as paid to the defend- ant Philip P. Van Rensselaer, for moneys due to the firm of Lansing and Van Rensselaer, the sum of 1,706 dollars, &c., which the defendant L. knew was not due or paid, and that the account was false, &c. That the account was fraud ulently made by L., in collusion with the defendant V. R., who was afterwards appointed the guardian of the plaintiff's wife, and has refused to render an account, &c. The defendants put in their joint and several answer, to which there was a replication. An order of reference to a master was entered by consent, to state an account between the plaintiffs and the defendant L., as administrator, and between the plaintiffs and the defendant V. R., as guardian. Petition of the defendant L. for leave to examine the defendant V. R. before the master, as a witness for him, to prove the assets which had come to his hands, and their application. Van Vechlen, in support of the petition. W. Duer and H. Bletcker, contra. VOL. III. 60 473 iJ13 CASES IN CHANCERY. 1818. THE CHANCELLOR. The defendant Van Rensselaer is ^*^-^~*^s charged in the bill as a particeps criminis to the transactions, WHIPPLE or some of them, sought to be impeached. He is called to LANSING sw ear to the truth and to thfc justness of the charges made on his part, and to the payments made on the part of the other defendant, and which are charged as being the result entirely of a fraudulent collusion. If the charge be true, the defendant Van Rensselaer must not only answer in costs, but he loses the advantage of the settlement *he has made with the other defendant, and he will be ultimately respon- sible for the money. He is, therefore, upon the face of the pleadings, not only a particeps criminis, but he has an interest in the result of the cause. He is clearly, therefore, an in- competent witness. The decisions in Dixon v. Parker, (2 Vesey, 219.) Bridgman v. Green, (2 Vesey, 629.) and Downing v. Toivnsend, (Amb. 592.) are to this effect. So, in Murray v. Shadwell, (2 Vesey and Bea. 401.) in which Lord Eldon ruled, that one co-defendant may be examined before hearing, for another, if not interested in the matter to which he is to be examined, it was agreed, that if it turns out that he has an interest in those matters, by reason of his interest in the result, his deposition cannot be read. It would be dangerous to make an experiment in this case, by an order de bene esse. The cause after issue, and without hearing, was, by consent, referred ; and if the master was to take the testimony, it would be difficult to determine on its effect and competence afterwards. It is not like the case of testimony taken before hearing, which can be entirely and safely suppressed, when the hearing comes on, if it should be judged inadmissible. Motion denied. 474 CASES IN CHANCERY 614 1S18. BARROW BARROW and others, Assignees of P^IOR, against R H i. RHINELANDER. n [Keversed iu part, 17 Johns. 538.] Whore a party produces and examines a witness before the master, but neglects to inquire as to a particular item in the account, which the witness alone could explain, he cannot, afterwards, except to the re- port of the master as incorrect, in regard to such item. Where JR., while a confidential clerk of P., took bonds and notes be- longing to P., and without his knowledge or permission, and which he refused to return, or give an account of, he was held answerable for the whole of the *principal and interest due on the securities, with- [ * 61 5 . out any regard to his diligence in obtaining payment, or the subse- quent solvency of the makers ; it appearing that the bonds and notes were good about the time they were so taken by R. A. person who receives bonds and notes as collateral security for a debt, is bound to use due diligence ; and if they are afterwards lost, through his negligence, by the insolvency of the makers, he is chargeable with the amount. Where R. received a bond from P. as a collateral security for a debt, and the obligor offered to pay him the amount of the bond in land, at a certain price, as the only means of payment in his power, which R. refused to accept, although requested to do so by P., and the obligor, afterwards, became insolvent, whereby the bond was wholly lost, R. was held chargeable with the amount of the value of the land so offered him in payment, and which he unreasonably refused to accept. PURSUANT to the decretal order entered in this October 3, a cause, on the 29th of September, 1815, (for which, as well 6 b ' er d as the facts of the case, and the opinion of the Court, see S. C. vol. 1. p. 550. 557. 559.) the master to whom the reference was made, on the 1st of June last, reported a bal- ance of principal and interest due from the defendant to the plaintiffs, of 31,894 dollars and 52 cents ; and that, in taking the account, he had credited the defendant with all moneys loaned by him to Prior, and paid on his account, by his re- quest, and all money which Prior received from others, belonging to the defendant, between the 29th of November, 1790, and the 4th of July, 1801 ; that he had, also, cred- ited the defendant with an allowance for wages, at the rate of 500 dollars a year, &c., and with the sums he reasonably paid for costs and charges in collecting the moneys due on the securities mentioned in the pleadings, and with the sums he paid for taxes on the shares, and on the lands in Clinton ; that he had ascertained that the defendant received divers sums of money from Prior, and also from his property and debtors, before he became a bankrupt, with which he had charged the defendant ; and, also, that the defendant had 475 C-JO* CASES IN CHANCERY. 1818. received divers sums of money from the property and debtors ^^~ ^s~**~/ of the plaintiffs, as assignees, with which he had also charged BARROW *him ; that he had ascertained that Prior had paid divers RHINE'LASI-- sums f money for, and on account of the defendant, with ER. which he had charged him ; and that Prior sold to the de- fendant goods, and that the defendant took goods out of the store of Prior, between the periods aforesaid, with which he had charged him ; and that the defendant took from Prior, before his bankruptcy, without permission, certain securities for money, with the principal sums of which he had charged the defendant ; and that the defendant received certain sums of money on the securities so taken by him, with which he was charged ; and that the defendant refused to deliver to Prior, on demand, for collection, James Hulberfs bond assigned to him by Prior ; but this case was provided for in the stipulation. That he had charged the defendant with the divers sums received on the securities assigned to him by Prior. That the amount of the principal and interest of the securities received from Prior, by the defendant, and lost by his negligence, appeared in the schedule annexed to the report, and with this amount the defendant was charged. That the defendant had redelivered to the plaintiffs the cer> tificates for the Inland Lock Navigation shares. That the lands in Clinton county, when they were conveyed to Prior, were undivided; but had since been divided, and the de- fendant had a title to a share in severally which belonged to Prior, which the defendant offered to reconvey, free of en- cumbrances. That the defendant can reconvey 44-89th parts of the population lands in Pennsylvania, and the con- tracts, bonds and mortgages, being his proportion, and is willing to reconvey, on being indemnified against his covenant and receipt. Various exceptions were taken to the report of the master , six exceptions were on the part of the defendant, which were argued in October last, and are sufficiently stated in the opinion of the Court. [ * 617 ] *Riggs and Boyd, for the plaintiffs. Wells and T. A. Emmet, for the defendant. THE CHANCELLOR. 1. The first exception is, that the master has not credited the defendant with 1,250 dollars, which he claims to be credited for, on the 1st of May, 1793, as the amount of money which Prior assumed to pay him, on account of a bond executed by Andrew Underhill to the defendant. 476 CASES LN CHANCERY. 6H The evidence produced by the defendant, is the exhibit, 1813 (M.) being an account from 1793 to 1795, in which the de- ^^-^~+^ fendant is charged with sundry items, and on the credit side BARROW is an entry in these words, under the date of the 1st of May, R N V- L 1792, (though evidently intended for 1793,) "by Andrew 'ER Underhill, for so much I assumed to pay, 500 pounds;" at the bottom of the account, Prior, by a certificate under his own hand, speaks of " the settlement of the above account." The answer of the defendant states the 500 pounds to have been a loan to Prior. The answer and the books do not agree with the above account. But though there is confusion as to this charge, yet one fact must silence all crit- icism. The defendant, before the master, claimed this debt of 500 pounds, as a sum assumed by Prior for Underhill. The plaintiffs examined Prior before the master, but not as to this charge. He, and he only, could have explained this item in the settled account, if it was not correct as it there stood. By omitting to examine him on this point, the pre- sumption is irresistible, that the account on this head was correct. The exception must be allowed. 2. 3. The second exception is, that the master had re- ported that he had ascertained that the defendant took from Prior, before his bankruptcy, without permission, certain securities for the payment of money ; and the third exception is, that the master had ascertained that the amount *of prin- [ * 618 j cipal and interest of certain of the securities received from Prior, by the defendant, had been lost by the negligence, default, and want of due diligence of the defendant, in collecting or attempting to collect the same. The master was directed by a decretal order, to charge the defendant with the amount due on such securities, for moneys, as were taken by the defendant from Prior, before his bankruptcy, without permission ; and, also, with the amount of such securities for money received from Prior, by the defendant, as were lost by the negligence, default, or want of due diligence of the defendant, in collecting or attempting to collect the same. There can be no possible objection to the reasonableness of the order, and these two exceptions go to the fact, that the master reported that he had ascertained that such occur- rences had taken place. The master was bound by the order to make the inquiry, and to report the truth ; and if any grievance exists in the case, it can only be as to the appli- cation of the discovery. The discovery and the report would otherwise be perfectly harmless. To see the application of the inquiry and of the facts so ascertained, we must have recourse to the 4th and 6th e^pntions. 477 613 CASES IN CHANCERY. 1S18. 4. The 4th exception is, that the master had charged the v^x-s/-*^/ defendant, on the 6th of September, 1796, with 190 dollars BARROW and 4 cents, as and for the balance due on that day, on Seaman and Averts note ; and the r . HIM'. LAND- , '' i ill i i KR. 6. oth exception is, that the master had charged him with 81 dollars and 44 cents, as and for the amount of David Barnuni's note, and had charged him as of the date of the 6th of October, 1801. The bill charged the defendant with a breach of trust, inasmuch as that, having possession of the valuable papers of Prior, he had, without the knowledge or consent of Prior, taken several bonds and promissory notes for the payment of money, and which had never been assigned or delivered ! 519 ] to him, and which he afterwards pretended to *hold as a col- lateral security for the payment of money. The answer to this part of the bill admits that while he was in the service of Prior, the bonds, notes and other valuable papers of Prior were kept in an iron chest, and that he, at sundry times, took from among those papers certain securities for the payment of money, of which the notes in question were a part. But the defendant avers that they were taken with the express permission of Prior, and he denies that he took from among those papers any bond or note whatever belong- ing to Prior, without his previous consent or permission. Here the parties were completely at issue upon this point of fact. The proof in support of the charge consists of the testi mony of witnesses, corroborated by circumstances. Edmund Prior, the bankrupt himself, testifies, that the notes in question were taken by the defendant from his possession, without his knowledge or consent. He says, that they were never assigned, and he missed them in March, 1801, though he concludes that they were taken some time >n the year 1800. He says further, that the defendant re- fused to give him any account of the securities so taken. William Prior, another witness, testifies, that, to his knowl edge, the defendant took away a number of notes deposited in the desk of Prior, and that the notes were missing when the defendant left the service of Prior. That by the di- rection of Prior, he called on the defendant for a list of those securities, and he refused to give it ; but the witness having a list of the missing notes, and mentioning them, the defendant confessed that the greater part of them were in his possession. This positive testimony, accompanied with this refusal, outweighs the answer; especially when we consider the 478 CASES IN CHANCERY. 619 want of credit, which the whole view of the case shows, i? ]S18. deservedly attached to many parts of this answer. *~^~~^~*+~/ It is admitted, that Prior assigned to the defendant se- BARROW curities *to the value of upwards of 16,000 dollars, and that R HIN EL ASD . these notes were not assigned, or endorsed : and why were ER. not these notes regularly assigned, if intended to be delivered ? [ * 620 j The omission affords, of itself, a strong ground of inference, that they were taken without permission. I am entirely satisfied with the conclusion drawn by the master, that these notes were taken by the defendant from the possession of Prior, without his knowledge or consent. It being admitted, and it is indeed abundantly proved, that the makers were solvent on the 4th of July, 1801, so as to take the case out of the agreement of the solicitors, the de- fendant has made those notes his own by such a fraudulent appropriation, and he is justly chargeable with the amount of them. If the case turned on the point of negligence, or a want of due diligence in the collection of the notes, every pre- sumption ought, of course, to be made against the defendant. In odium spoliaioris omnia pr&sumuntur. The testimony is decisive, that this act of spoliation caused the loss of Barnum's note. Prior testifies, that when that note fell due, (which was in the autumn of 1801,) Barnum called upon him to pay it, and as he had not the note in his possession, Barnum refused to pay it, and went away, and has since become insolvent. The defendant states in his answer, that in 1802, he frequently applied by letter to Barnum, for the payment of the note, and that in 1801, he made a personal demand upon Barnum, who refused to pay, because Prior had given him notice not to pay. Barnum, upon his examination, confirms the testimony of Prior, and contradicts the answer of the defendant. He has no recol- lection that the defendant ever applied to him personally for payment, or that Prior ever forbade or requested him not to pay the note to the holder. The tender, by the defendant, of these unassigned and unendorsed notes to one of the as- signees, on the 28th of * April, 1802, was, therefore, an act [ * 621 ] perfectly and most justly unavailing. As to the note of Seaman and Avery, the testimony of Prior would lead us to conclude, that the money was lost from the want of a prosecution in due season. The letter rf Amasa Paine to the defendant, in 1804, shows that Avery was then dead, and died insolvent, and that nothing was to be obtained on the note, and the defendant does not appear to have made any effort towards the collection of this note 479 621 CASES IN CHANCERY. 1818. BARROW v. RlllNKLAND- ER. [*622] until as late as 1804. He was properly chargeable with the amount of those notes. The 2d, 3d, 4th, and 6th exceptions are, consequently, overruled. 5. The 5th exception is, that the defendant is charged, on the 18th of December, 1798, with 6,114 dollars, as and fir the balance due on Samuel Beman's bond, assigned to him by Prior, and which bore date on the llth of April, 1795. The bond of Beman, here referred to, was for 2,055 pounds, and was assigned to the defendant on the 4th of February, 1799, as a collateral security for the debt due from Prior to him. It is in proof, by the testimony of Beman himself, that in the summer of 1802, Beman, by his agent, M. Wheeler, made an offer to the defendant of a tract of land in the town of Hampton, in the county of Washington, containing 1,338 acres, then worth 4 dollars an acre, towards a satisfaction of the bond, and that the defendant might take the land at a fair valuation. This offer the defendant rejected. Wheeler, the agent, confirms this fact, in all its essential parts, and he says, that he further informed the defendant, that Beman said, he should be unable to pay the debt in any other way. It is also in proof, that Williams was employed by Beman to make the same offer, and Williams, who is now dead, told Beman he had made the offer, and that it was rejected. Williams had ^further offered to release, as far as respected that land, the lien of a judgment which he owned, and which was against Beman, and bound the land, provided the de- fendant would accept that land in payment of the bond. The offer, with this additional advantage, was still rejected. It is further in proof, that Williams applied personally, on behalf of Beman, to Prior, and offered to settle the bond, by giving the land, accompanied with a release of his judg- ment upon it, and that Prior, deeming the offer liberal, consented to accept of it. Prior says, that he, then, with tiie assent of one of the assignees, proposed to the defend- ant, that if he would agree to the offer, and accept the land in satisfaction of the bond, the assignees would indemnify him against any loss upon a fair sale of the land. The de- fendant still refused, and the consequence was, that the whole of the land was sold under the judgment, and the debt due from Beman totally lost. It is further in proof, that in the spring of 1802, Beman offered to the defendant 3,000 dollars in land, and 2,000 dollars in obligations, upon the bond, and this offer was also rejected. The point is now, whether the defendant, under the peon 480 CASES IN CHANCERY. liar circumstances of the case, ought not to be responsible 181 for the value of an offer which was so perversely and uncon- scientiously rejected, by means of which refusal, the whole BARROW debt has been lost. i i i f i -i / i KHINELAND- I am of opinion, that the defendant was guilty of a breach ER. of trust in the relation under which he stood to Prior and his assignees. He was bound to exercise a reasonable and equitable discretion, instead of which, his conduct, in this case, was tyrannical, oppressive, and unjust. The defendant had, at the time, extravagant security for what was due him, independent of this bond. He had a mortgage on a house and lot in New-York, and a deed for lands in Clinton county, and population snares, and other personal securities, assigned or assumed, to the amount of upwards of 20,000 dollars, for a debt, not exceeding in *the [ * 623 whole, one fifth of the sum total of that accumulated secu- rity ; and yet, with this abundant security, he would accept of nothing short of the uttermost farthing in money, for Beman's bond, though he was assured by the debtor, that the offer he made was the only means of payment in his power, and though he was solicited by Prior, and by Prior's assign- ees, in the shape of a proposition, calculated to subdue the most obstinate perverseness. The defendant had uniformly endeavored to involve his claims upon Prior, and the amount of his security, in mys- tery and difficulty, the better to conceal the mischiefs of his avarice. He was repeatedly requested by Prior to make an account of his demands, and of the securities of Prior which he held, and he as repeatedly refused. At one time, he said, he would not, because " there were certain circum- stances attached to the business that would render it unsafe for him to render such an account as might endanger the security of his bonds." For the same reason, he refused to give a list of the securities. At last, he appeared to yield to importunity, but said, that he would not be able to make out any such account, unless he had the privilege of using the books of Prior, and to which Prior assented. He then undertook to make out the account, and consumed the greater part of five months in preparing it. He repeatedly refused to make out a list of the securities of Prior in his hands, until, at last, by the particular desire of Robert Bowne ind Wm. Prior, he made a partial list. The same unreasonable and oppressive spirit, which mani- fested itself in this conduct, seems to have pervaded all the transactions of the defendant with Prior, as disclosed in this case. The defendant dealt oppressively and fraudulently with Prior from the beginning; and the rejection of the VOL. III. 61 481 624* CASES IN CHANCERY. offers of Beman, pressed as they were by the most persua- sive motives, was only a continuation of the abuse of trust. BARROW *As the defendant lost the debt of Beman by his refusal * close with any offer that was made ; and as his conduct, in this respect, was a breach of duty resulting from the rela- tion in which he stood with Prior, he ought to be held re- sponsible for the value of the property so rejected and lost. It is said, however, that Beman was insolvent on the 4th of July, 1801, and that this brings the case within the agree- ment of the counsel. I should doubt, very much, whether a case of this kind fell within the meaning of that stipulation. The provision was intended to meet the charge of negligence in prosecution, and to afford a test of the absolute inability of the party to pay at a given time. But here the debtor absolutely offered payment in land, and the question of solvency or insolvency does not arise. There was no objection to the title offered by Beman, accompanied with the offer of the release of the judgment. The refusal of the defendant applied to the subject offered, and not to its value or title. We must as- sume both of them to be as they were stated. If it were now a question as to the solvency of Beman, we have his testimony, that his property was sufficient, on the 4th of July, 1801, to pay all his debts, and that it was the subsequent forced sales of his property which rendered him insolvent. He says, that in calculating on his solvency in 1801, he did not include the partnership debts of the house of Scott, Beman, and Wheeler, because, he says, that Scott had made such arrangements with the creditors, that he was exonerated from the debts of the house. It is said, again, that the bond in question was merged in a subsequent judgment bond which Beman gave to Prior, in 1797, as a trustee for several creditors, and in which judg- ment bond the existing debt to Prior was included. On this last bond a judgment was entered. But in answer to this [ * 625 ] objection, it is to be observed, that all *the parties concerned considered the defendant as having the absolute control of the Beman debt, and all acted upon that assumption. The equity of the case is not, therefore, affected by the subsequent bond and judgment. One bond will not extinguish another, even at law ; and whether the entry of judgment, on the second bond, would do so at law, under the circumstances of this case, need not be discussed. Every person that had an interest in the transaction, the defendant, and Beman and Prior, and the assignees of Prior, all considered the first bond, in the hands of the defendant, as a subsisting debt This was the universal understanding, and the technical ob 482 CASES IN CHANCERY. 625 jection cannot be listened to here, whatever force might be 1818. attached to it in a Court of law: Prior says, that the judg- ^*^^~+^s ment bond was taken in his store when the defendant was BAKROW with him, and he believed the defendant knew it, and that it R HIN E' LAKD was only taken as a farther security. If the defendant was ER. considered by all parties as having the entire control of jBeman's debt, by means of the first judgment, Prior could not deal with Beman, in respect to the offer of the lands, without the privity and consent of the defendant. If he had attempted to extinguish the debt without the knowledge of the defendant, it would have been dealing treacherously with the defendant, and contrary to the act of assignment of the original bond. This assignment, being made a long time subsequent to the judgment bond, was an affirmance by Prior of the subsisting force of the first bond. Nor could Prior accept of the offer of the lands, by reason of another insuperable objection. He was, at the time of the offer, a declared bankrupt, and his property had been assigned to the present plaintiffs. It was for that reason that Prior communicated the offer to them, and obtained the consent of one of them (and which was sufficient for the defendant to act upon) to the composition which was proposed. *The defendant never put his objection to receiving the [ * 626 ] lands upon the ground of the want of a sufficient assent on the part of the assignees of Prior. The presumption of a competent assent is irresistible, from the testimony of Prior, and from the conduct of the defendant. His conduct amounted to an admission of such consent. The letter of Prior to Beman, in March, 1802, has been mentioned as evidence that the original bond was not deemed valid. But that letter cannot be permitted to affect the case. It was written in answer to a letter from Beman, complaining of a suit, in Prior's name, on the bond, and Prior informs him that the suit was without his knowledge, and that the defendant would not give him any satisfaction as to his affairs, and that he could not tell on what ground the bond was assigned to the defendant. Regretting that Beman should be in a situation so embarrassing, he suggests, whether Beman might not plead, in bar of the suit, the judgment bond, as being of later and higher authority. This letter was evidently written in a moment of despair, arising from a view of his injuries and misfortunes. It was on the very eve of Prior's bankruptcy, and the suggestion can have no effect on the uniform tenor of his acts, both prior and subsequent to that time. Upon the whole, as the defendant obstinately refused every proposition, and kept jhe security to himself, until 483 G26 CASES IN CHANCERY. 1818. l-h 6 debt was lost, I think he is not now to be heard to say v^^ v^^_x / am not in fault, or I am not responsible for so great a wastt BARROW upon the estate. The admission of such a plea would be RHINELAND- gi v ^ n g success and security to the most aggravated and obsti- ER. nate violation of the duties of a trustee, and of the plainest principles of equity and good conscience. I shall, consequently, give effect to the most essential part of the master's report on this point, but shall modify it so far as to charge the defendant only with the value of the lands tendered in the summer or autumn of 1802. The value, as [ * 627 ] proved by the testimony of Beman, was *5,325 dollars, and that sum, as of the 1st of September, 1802, is to be substi- tuted to the sum in the report of 6,114 dollars, as of the 18th of December, 1798. As to the costs of the exceptions, the defendant will be entitled to costs of the exceptions taken on the part of the plaintiffs and overruled ; and of the first exception, taken on his part and allowed. The plaintiffs will be entitled to the costs of the second, third, fourth, and sixth exceptions over- ruled, and neither party will be entitled to any costs for the fifth exception, which has been thus modified. Decree ace dingly. 484 CASES IN CHANCERY. 1818. MASON MASON against ROOSEVELT and others. ROOSEVELT. Dn a reference to a master, aged witnesses residing in a distant part of the state, may be examined on interrogatories, before a master in the county where they reside, under the directions of the master before whom the reference is pending ; and examinations so taken may be used on the reference, saving all just exceptions. J. EMOTT, for the defendants, on an affidavit, stating December^. that two witnesses were aged, and could not, without great trouble, inconvenience, and expense, be taken before the master, who resided in a distant part of the state, as wit- nesses, on a reference pending before him, moved for leave to take their examinations before a master, in the county where the witnesses resided. The Court granted the motion ; and ordered, that these witnesses be examined before a master in the county in which they reside, on interrogatories to be approved by *the master before whom the reference is pending, and on [ * 628 ] giving such notice as the said master may direct ; and that the defendants shall have liberty to use such examinations on the reference, saving all just exceptions. END OF THE CASES. 485 [629] 629] *ORDERS OF COURT June 20th, 1816. Ordered, That whenever a defendant shall cause his appearance to be entered, but shall not cause his answer to be filed in due time, an application may thereupon be made to the chancellor (without previous notice) by petition, stating the circumstances, for an order that the defendant answer the complainant's bill in such time, after service of a copy of the order for that purpose, as the chancellor shall direct, or in default thereof, that the bill be taken pro confesso ; and if the defendant shall not answer within the time limited by such order, a rule for taking the bill pro confesso may be entered, as of course, on filing an affidavit of the service of a copy of the said rule. November 1st, 1816. Ordered, That so much of the 47th rule as refers to costs for copies of the masters' reports be repealed, and in lieu thereof, that the masters shall be allowed fees for copies of the draft of their reports furnished to the parties in those cases in which, by the practice of this Court, the master ought to deliver a draft of his report before he signs it, that the parties may take objections ; and that where a master shall take account of an estate, or an administration thereof, or an account between parties in trade, or other account [ * 630 ] under a decree or order, and not *coming within any specific provision in the fee bill, or when extra services shall be ren- dered in the foregoing cases of taking and stating accounts, the taxing masters may make such further allowance as ; under the circumstances, may be just and reasonable, but 486 ORDERS OF COURT. 63C subject to the chancellor's revisal, at the instance of either ORDERS or party in the cause. COURT. October 15th, 1817. In order to obviate the inconveniences arising from the irregular manner in which copies of pleadings, depositions, reports, and other papers, are at present made out, It is Ordered, That in future, the register, assistant register, clerks, masters, and examiners of this Court shall, in the copies of all pleadings, depositions, reports, decrees, and other papers or pleadings filed, or remaining of record in this Court, which they shall make out and deliver to the parties, or their solicitors, to be used in this Court, and in all tran- scripts of the same to be transmitted to, or used in the Court for the Trial of Impeachments and Correction of Errors, dis- tinctly mark and set down in the margin thereof, the number of the page in the original pleading, deposition, report, or other paper, so that all the office copies made out by the several officers of this Court may, in this respect, agree with each other. October 16th, 1817. Ordered, That the allowance settled by the chancellor as a compensation for guardians, executors and administrators, in the settlement of their accounts under the act of the legislature, for receiving and paying money, shall be five per cent, on all sums not exceeding one thousand ^dollars, for [ * 631 receiving and paying out the same ; two and a half per cent, on any excess between one and five thousand dollars, and one per cent, for all above five thousand dollars. June llth, 1818. Ordered, That so much of the 94th rule, of the 1st of November, 1816, as authorizes the taxing master to make allowances beyond the specified provisions of the fee bill, to masters, for extra services, without any previous directions in the case by the chancellor, be repealed. 487 631 ORDERS OF COURT. JOUKT ORDKKS OF July %d, In addition to the 33d printed rule, It 's Ordered, Thai when the complainant shall set down the cause for hearing at the first, or any term after the same is in readiness to be set down, but shall not bring the same to a hearing at such term, nor show any good cause to the Court at the time for not doing so, it shall be considered a default in the com- plainant, so as to authorize the defendant, on making and filing an affidavit thereof, to enter an order for leave to set down the cause in the same manner, or to the like effect, as though the complainant had omitted to set down the cause at the first term, after it was in readiness. July 3d, 1818. Ordered, That whenever a party shall set down a cause for hearing, and give notice thereof, and shall neglect to [ * 632 ] bring the same to a hearing at the term in which it *shall so be set down, or show good cause to the contrary, to the satisfaction of the Court, the opposite party shall be entitled to costs for attendance on the Court upon such notice, to be taxed. November IQth, 1818. In order the better to preserve the orderly and regular practice of the Court, and to give the most authentic evidence of the matters upon which the decrees of the Court are founded, and also to secure to the officers of the Court their just and lawful dues, It is Ordered, that in all cases hereafter brought to a hearing, or submitted without hearing, upon pleadings and proofs, or upon pleadings only, the parties shall furnish to the chancellor for his use, office copies of the pleadings and depositions on their parts respectively to be produced, duly made, examined end certified by the officer in whose custody the originals may be. 488 IND EX. A. ACCOUNT. 1. An assignee of an executor, or of the administrator of an execu- tor, cannot be called to an account by the legatees, where there is no fraud or collusion, even though the assets could be traced and identified. Rayner v. Pearsall, and others, 578 2. Where an executor put bonds and notes due to the testator, into the hands of an attorney to collect, and after the death of the executor, the attorney collected the money, and applied it to his own use, and became insolvent : Held, that the estate of the executor was not chargeable with the loss, especially after a lapse of more than six years. ib. 3. Where the administrator of an ex- ecutor, in his answer to a bill filed by the representatives and legatees of the testator, for an account, &c., sets forth an account, and avers, that he had fully administered, &,c., and had distributed the sur- plus, being a trifling sum, the Court refused to order a reference to a master for a further account, especially after a lapse of twelve years. ib. 4. Where the charges in the bill are specific, setting forth the items of VOL. III. 62 the account, with their dates, DH an order of reference for an ac- count, the inquiry is not open be- yond the special matter charged ; although the bill may contain a general charge at the conclusion, and a prayer for a "full account concerning the premises." Con- sequa v. Fanning and others, 537 5. If a merchant abroad sends goon's to a merchant here, by his or- der, or by that of his agent, which are received with the invoice, and accepted, without any objection at the time, he cannot, afterwards, object that the goods were over- charged in price. ib. 6. Where a consignee of goods sells some of them on credit, and settles with his consignor, and pays him the full amount, he cannot after- wards claim to be reimbursed for any part, on the ground of a bad debt made in the sale; there being no fraud or mistake in the settle- ment, ib. 7. Unsettled accounts do not bear interest. ib. 8. Where a balance of an account ia paid without any charge of inter- est, interest cannot afterwards be demanded. ib. 9. An order of reference for an ac- count before a master, must be founded on the pleadings and proofs, and cannot be made more extensive than the allegations and proofs of the parties. S. C. 595 489 INDEX. Vide BARON AND FEME, 1, 2, 7. IN- TEREST, 3, 4. JURISDICTION, 4. PARTNERSHIP, 3. PLEADING, IV. 20. PRACTICE. USURY, 3. Action of account, vide ACTION, 2. ACTION. 1. If one person makes a promise to another, for the benefit of a third, that third person may maintain an action at law on the promise. Duke of Cumberland and others v. Codrington and others, 254 I. An action of account may be brought at law by one partner against another, and there appears to be no good reason why that ac- tion is not resorted to, instead of a bill in equity. Duncan v. Lyon, 361 U. An action of covenant lies at law by one partner against another, where by the contract there is a covenant to account. Duncan v. Lyon, 362 4. And an action of assumpsit will also lie on a promise in writing by one partner to take part of the goods bought, in which they were to be equally concerned as to profit and loss. ib. 5. An action on the case for a deceit lies against a person selling land, knowing that he had no valid title, although the deed contains no covenants. Roberts and Boyd v. Anderson, 375 Action by a factor in his own name, vide JURISDICTION, 5. ADMINISTRATION. Vide EXECUTOR AND ADMINISTRATOR, II. 490 ADMINISTRATOR. Vide EXECUTOR AND ADMINISTR \TOR AGENT. 1. G. was engaged by M., theownei of a ship, as supercargo on a tra- ding voyage, and was to receive as a compensation for his services, two and a half per cent, on the proceeds of the outward cargo, and five per cent., or one twen- tieth of the net profits of the voyage, on its termination. He fell sick during the outward voyage, and left the ship, having appointed another supercargo for the residue of the voyage, and agreed to pay him out of his own commissions. It was held, that the legal representatives of G., who died on his return home, were entitled to the full compen- sation stipulated, the ship having successfully performed the voyage, and which produced a large profit to M., and the substitute to G. having faithfully performed his duty as supercargo. Gray v. Murray, 178 2. G., being about to proceed on a distant voyage, ordered insurance to be made on his life to the amount of 3,000 pounds sterling, and M. undertook to pay the pre- mium, and have the business com- pleted, and his agent in London obtained a policy for that amcvut, and paid the premium for ' ne year. M., afterwards, alleging that there was a mistake in the order, without the knowledge of G., procured the policy to be cancelled, and the premium re- turned, and another policy to be executed for 450 pounds sterling. G. having died within one year, M. was held to be responsible to his legal representatives for the INDEX amount of the original policy, which had been so cancelled, deducting the premium. S. C. 183 3. A general agent cannot bind his principal personally, for a debt chargeable on the land descended to his principal. Duke of Cum- berland and others v. Codrington and others, 274 i. Where the several joint owners of a cargo appoint one of the part owners their agent, to receive and sell the cargo, and distribute the proceeds, he is entitled, under such special agency, to a commis- sion, or compensation for his ser- vices, as a factor or agent, in the same manner as a stranger; and, as such factor or agent, he may re- tain the goods, or their proceeds, as security not only for his ad- vances, disbursements, or respon- sibilities, in regard to the par- ticular property, but for the bal- ance of his general account. Bradford v. Kimberly and Brace, 431 5. Where an agent has duly and fairly accounted with his immediate and authorized principal, he is not bound to account over again to a person beneficially interested, or standing in the relation of cestuy quc trust to the principal. Trip- ler and others v. Olcott and Lord, 473 6. Where F. made a bill of sale of a ship, then on her voyage, and of freight to be earned, to L., which was absolute on the face of it, and Z.., sent to 0., the master of the ship, a copy of the bill of sale, with a power of attorney and in- structions to him as to the disposi- tion of the property, and 0., con- sidering L. as the owner from that time, acted as his agent, and afterwards accounted to him toi the proceeds of the freight, &c. Held, that 0. was not accountable to jP., as having a resulting trust, though some of the letters from L. to 0. incidentally mentioned, that the bill of sale was intended to secure C. certain advances and responsibilities ; there being no fraud or collusion between L. and 0. ib. 7. Where the supercargo and agent of a merchant here delivers goods O to a merchant abroad for sale, and the agent settles with the merchant abroad, according to the account stated by him, with full knowledge of all the facts, without any fraud or imposi- tion, the principal here is bound by the act of his agent, and is concluded from any further claims against the merchant abroad, especially after having kept the ac- count for several years, without making any objections to it. Murray and Murray v. Toland and Meade, 569 8. A factor who delivers goods to a third person to be sold on account of his principal, may maintain an action at law, in his own name, against such third person, for the proceeds. ib. Vide AGREEMENT, 3. JURISDIC- TION, 5. AGREEMENT. Construction, effect, waiver of, and re- scinding agreement. 1. Where one party intends to aban- don or rescind a contract, on the ground of a violation of it by the other, he must do so promptly and decidedly, on the first information . of such breach. If he negotiates with the party, after knowledge of the breach, and permits him to 491 536 INDEX. proceed in the work, it is a waiver of his right to rescind the contract. Lawrence and others v. Dale and others, 23 2. The defendants contracted with the plaintiffs, to be responsible for the perfect construction and per- formance of certain steam-boats to be built on the river Ohio, so that they should carry one hundred tons burden, and run four miles an hour in still water. Held, that the plaintiffs could not, after the boats were built, rescind the con- tract on their part, and recover back the money advanced by them to the defendants, on the alleged ground, that the boats drew too much water to navigate the river, without having first put the fitness of the boats to navi- gate the river, in the manner agreed on by the parties, to the test of experiment. ib. 3. Where copartners in trade en- gaged a clerk, as book-keeper and cashier, at a fixed salary, for two years, with an understanding that he should have a larger compen- sation as the business extended and his duties increased ; and during the third year it was dis- covered, that the clerk had over- drawn moneys belonging to the firm, and applied the same to his own use, of which he afterwards rendered a statement ; but a ma- jority of the partners afterwards continued him in their employ : Held, that he was entitled to an increased compensation for his services after the second year, the fact of continuing him in service after a discovery of his improper conduct being an admission that he had not forfeited his right to an increased allowance. Kirk v. Hodgson and others, 400 Ante-nuptial agreement, vide BARON and FEME, 15, 16, 17, 18. 492 Where agreement must be in writing vide FRAUDS, (STATUTE OF.) ALIMONY. Vide DIVORCE. AMENDMENT. 1. The plaintiff, on petition, after answer, and exception to the an- swer, may amend his bill, by add- ing new charges and new parties, upon payment of costs, if a new or further answer be required ; and the plaintiff must amend the office copies of the bill taken out by the defendants, who have appeared, and who are entitled to six weeks, within which to answer the amendments. Beckman and others v. Waters and others, 410 2. In case defendants be added to the bill, the plaintiff may have process of subpoena, and proceed against them in the usual course. ib. 3. After publication passed, and cause set down for hearing, the plaintiff will not be allowed to amend his bill by adding new charges ; but may file a supple- mental bill, on payment of the costs since publication. Shephard v. Merrill, 423 Vide PLEADING, IV. 25. ANSWER. Vide PLEADING, III. APPEAL. 1. An appeal is only a stay of pro- ceedings in the first instance, and the party in whose favor the de- cree is, may, with leave of the Court, proceed, notwithstanding INDEX. G31 the appeal : and on motion for that purpose, the Court, after an appeal filed, ordered a reference to a master to ascertain the pre- cise sum due by the defendant, with interest, and that the defend- ant bring the amount into Court, within 30 days after confirmation of the report, or that he gives se- curity to be approved of by a master, to perform the decree, or such decree as might be awarded against him on the appeal, or that execution issue notwithstanding the appeal. Messonier v. Kau- man, 66 2 A decretal order of reference to a master to state the account be- tween the parties, was made in September, 1815, and the parties appeared from time to time, before the master, until the 16th of Oc- tober, 1817, when they were nearly ready for a final hearing before him ; and then the defendant pre- sented an appeal from the decretal order, dated the 16th of October, 1817. On petition and motion of the plaintiff, the Court ordered the master to proceed in taking the account, and to complete and file his report, notwithstanding the appeal. Barrow and others v. Rhinelander, 120 3. This Court, notwithstanding an appeal filed in the cause, may, in its discretion, award execution for the sum decreed to be paid by the defendant, unless he brings the amount, with the costs, into Court, within a certain time given for that purpose, to abide the event of the appeal, &c., or give security to the satisfaction of a master to pay the amount of the principal, interest and costs, on the affirmance of the decree, or such part thereof, as may be payable on the decree of the Court above, on the appeal. Riggs and others v. Murray, 160 APPOINTMENT. Power of, vide BARON AND Ft ME, 4, 5,6. ARTICLES. To impeach the credit of witnesses, vide PRACTICE, V. 14, 15, 16 18, 19. ASSETS. Vide EXECUTOR AND ADMINISTRATOR, I. MORTGAGE, I. 6. 8. 9. 10. ASSIGNMENT. For the payment of debts, vide DEBT OR AND CREDITOR, 1. 7. 10. Of usurious debt, vide USURY, 2. ASSUMPSIT. Vide ACTION, 1. 4. ATTACHMENT. For breach of an injunction, vidi IN- JUNCTION, I. 1. AUTHORITY. A special authority must be strictly pursued, and a purchaser is pre- sumed to know such authority when it is given by a public statute ; and if he purchases where the authority is not pur- sued, it is at his peril. Denning and others v. Smith and other::, 311 493 638 INDEX. B. BANKRUPT. 1. M. Sf S., partners in trade, beM.g greatly indebted in the United States, and in Europe, on the 2d of December, 1799, conveyed cer- tain lands to B. in trust, for the security and payment of certain European or German creditors, until they were paid, or S. should be absolutely exonerated and dis- charged therefrom, by the said creditors, and their demands transferred to M. alone, or S. be otherwise exonerated, acquitted, or discharged therefrom ; and after the said debts should be satisfied, or the said S. be so dis- charged and released, then in trust for M. M. 4* S., having committed an act of bankruptcy in July, 1800, were duly dis- cb'.rged from their debts under the late bankrupt law of the United States, passed April th, 1800. Held, that this was a valid deed, and that the dis- charge of S. from the partnership debts, under the bankrupt law, was not a fulfilment of the con- dition on which the trust for the German creditors was created. M'Menomy v. Murray and others, 435 2. A discharge under a bankrupt law of this country does not discharge the debtor from debts contracted and made payable in Europe, or a foreign country, unless the for- eign creditors come in, and prove their debts under the commission. ib. 3 But even if the discharge under the bankrupt law should be deemed a discharge from any suit in the United States, for debts due to the German creditors of **?.. yet that would not satisfy the 494 terms and conditions of the deed of trust, unless it also operated as a discharge in Germany where the debts were contracted ib. 4. The late bankrupt law did not operate upon acts declared to be acts of bankruptcy, commit- ted prior to the 1st of June, 1800. ib. 5. A conveyance by a debtor of his property to secure a bona Jide creditor, executed prior to the 1st of June, 1800, though made in contemplation of bankruptcy, is valid, not being within the pur- view of the bankrupt law of the United States, of the 4th of April, 1800, which did not go into opera- tion until after the first of June following ; nor is it fraudulent at common law. M'Menomy v. Roosevelt and others, 446 BARON AND FEME. 1. Where the husband is permitted by the wife to have the manage- ment of her separate property, se- cured to her by a marriage settle- ment, to receive rents, &c , very strict proof of his having paid to, and settled with her, during her life- time, for the sums received, is not required ; but, from the confiden- tial nature of the connection, the most favorable presumptions are indulged towards him. Methodist Episcopal Church and others v. Jaques and others, 77 2. He cannot, however, claim money received by him for a judgment debt due to the wife, on the ground of the mere parol declara- tion of the wife, contrary to the terms of settlement. ib. 3. A feme covert, with respect to her separate property, is to be considered as a feme sole, to the extent only of the power INDEX 639 given to her by the marriage set- tlement, ib. 4 Her power of disposition is not absolute, but sub modo, to be exer- cised according to the mode pre- scribed in the deed or will under which she becomes entitled to the property : Therefore, if she has a power of appointment by will, she cannot appoint by deed; or when she is empowered to appoint by deed, the giving a bond, or note, or parol promise, without reference to the property, or making a parol gift of it, is not such an appointment. ib. it. So, when it is said in the settle- ment, that she is to receive from her trustee the income of her property, as it may, from time to time, become due, she has no power, by anticipation, to dispose at once of all that income. ib. <). The question as to the power of a feme covert, over her separate property, settled to her separate use, and the manner of its ex- ecution examined. S. C. 86 7. If a. feme covert, having a sepa- rate estate, secured by settlement, provides by will for the payment of her funeral expenses, the hus- band is not to be charged with them ; otherwise, if no such pro- vision had been made. S. C. 115 8. A feme covert may mortgage her separate property for her hus- band's debts. Demare'st and wife v. Wynkoop and others, 129 0. So, she may also execute a valid power to sell the property, in case of default, pursuant to the stat- ute, ib. 10. In a mortgage by husband and wife of the wife's separate estate, the wife may, if she choose, re- serve the equity of redemption to the husband alone, who may sell and dispose of it. ib. 11. A testator, by his will, dated Sep- tember 2o/t, 1810, gave to his d. ughter, during her separation from W. C., her husband, one thousand dollars a year, which he charged on his real estate. W. C. and his wife were living separate when the will was made, but co- habited together in February, 1815, when the testator made a codicil to his will, (changing only the executors,) and also, at his death, but separated immediately after his decease, and continued to live separate until within a short time previous to filing the bill by W. C. and his wife, against the executors, for the legacy. Held, that the plaintiffs were no! entitled to the legacy, as it was to be inferred that they separated for the sole purpose of entitling them- selves to it, and the bill was or- dered to be dismissed with costs. Cooper and Wife v. Remsen and others, 382 12. And it was, afterwards, held, upon the same clause in the will, that a voluntary separation of the wife from her husband would not entitle her to the annuity, for she can establish no claim on her own violation of conjugal duty. Cooper and Wife v. Clason and others, 521 13. Whether the separation, which is to give effect to the bequest, must not have existed at the time of the testator's death ? Qucere. ib 14. A feme covert may execute, by a will in favor of her husband, a power given or reserved to her, while sole, over her real estate. Bradish ~, Gibbs and others, 5~o 15. Where the wife, before marriage, entered into an agreement with her intended husband, that she should have power, during the coverture, to dispose of her real estate by will, and she afterwards devised the whole of her estate to her husband, this was held a valid disposition of her estate in 495 G40 INDEX. equity ; and the heirs at law of the wife were decreed to convey the legal estate to the devisee. Bradish v. Gibbs and others, 523 10. To enable a feme covert to dis- pose of her real estate in equity, it is not necessary that the legal estate should be vested in trus- tees ; but a mere agreement en- tered into before marriage with her intended husband, that she should have power to dispose of her real estate during coverture, will enable her to do so. S. C. 540 17. Marriage is a good, valuable, and meritorious consideration for an antenuptial contract. S. C. 550 18. A husband, in regard to a devise to him by his wife, in execution of a power, is not a volunteer, ib. Vide DIVORCE. BILL. Vide DISCOVERY. INJUNCTION, II. 2. PLEADING, II. C. COLLATERAL SECURITY. Vide MORTGAGE, I. 7, 8, 9, 10. COMMISSIONERS OF LOANS. Vide LOAN-OFFICERS. COMMISSIONS. 1 A committee of a lunatic is en- titled to an allowance, by way of compensation for his services, in receiving and paying out moneys, within the equity of the statute, 496 (sess. 40. c. 251.) authorizing this Court to make a reasonable allow- ance to guardians, executors, and administrators, for their services In the Matter of Roberts, 43 2. Rule as to the rate of allowance to guardians, executors and ad- ministrators, ib. 3. G. was engaged by M. as a super- cargo of a ship, on a trading voyage from New-York to Madei- ra, the Cape of Good Hope, Madras and Calcutta, and thence back to New- York ; by the written instructions to G., by which much was confided to his judgment and discretion, he was to receive as a compensation for transacting the business, two and a half per cent. of the value of the property brought home for the account of M., arising from the proceeds of the outward cargo, deducting duties, &,c., and to have his reasonable expenses, while on the voyage, paid out of the cargo ; and to be allowed, also, Jive per cent., or one twentieth part of the net profits, on its ter- mination. G. performed his duty from New-York to Madeira, and the Cape of Good Hope, but was taken sick at the latter place, and obliged to leave the ship, and died on his return homeward in another vessel, having first appointed at the Cape B. 4* B. (one of whom had been a clerk of M., and par- ticularly recommended to G 's at- tention,) his substitutes, as super- cargoes for the remainder of the voyage, agreeing to pay them for their services out of his commis- sions. The ship proceeded to Madras, from whence it was thought best, on account of politi- cal circumstances, to return to New-York, without going to Cal- cutta; and on the return of the vessel to New-York, the home- ward cargo was delivered to M., who cleared a considerable profit INDEX 641 on the voyage, B. fy B. having faithfully performed their duty as supercargoes, in the place of G. It was held, that the legal repre- sentative of G. was entitled to the full compensation stipulated, as for the completion of the voyage. Gray v. Murray, 167 4. One joint partner is not entitled, as against the others, to a com- pensation for his greater or more valuable services, in regard to the common concern, unless there be a special agreement to that effect. Bradford \. Kimberly and Brace, 431 5. But where the several joint owners of a cargo appoint one of the part owners their agent to receive and sell the cargo, and distribute the proceeds, he is entitled, under such special agency, to a commis- sion or compensation for his ser- vices as a factor or agent, in the same manner as a stranger. ib. CONSIGNOR AND CONSIGNEE. Vide ACCOUNT, 5, 6. INTEREST, 4. JURISDICTION, 5. CONTEMPT. Vide INJUNCTION, I. 1. MARRIAGE, 1. CONTRACT. Vide AGREEMENT COSTS. I. Costs in general. II. Security for costs. I. Costs in general. 1. Where, on a bill to foreclose a morterage, a subsequent mortga- Vor.. I. 63 gee, or judgment creditor, who is made a party defendant, answers and disclaims, he is entitled to costs against the plaintiff, to be paid out of the fund, if that is sufficient, and if not, to be paid by the plaintiff; he not having applied to such defendant be- fore suit brought, to release, or otherwise disclaim. Catlin v. Harned and others, 61 2. A plaintiff suing mformapauperis, and recovering a legacy against executors, is entitled only to the actual costs or expenses of the suit, to be paid out of the assets. Williams v. Wilkins and ot/iers, 65 3. It rests in the discretion of the Court to order pauper or dives costs, according to the circum- stances of the case. ib. 4. Where both parties are equally innocent, and both are endeavor- ing to avoid a loss caused by another, costs will not be awarded to either party as against the other. Pcndleton v. Eaton and others, 69 5. Where a plaintiff had color of claim, though barred, in the opin- ion of the Court, by lapse of time, his bill was dismissed without costs. Demarest and Wife v. Wynkoop and others, 129 6. Costs in partition, in this Court, are charged upon the parties re- spectively, in proportion to the value of their respective rights. Phelps v. Green and others, 306 7. A plaintiff suing in autre droit, is not responsible for costs, unless under special circumstances. Goodrich v. Pendleton, 520 II. Security for costs. 8. The defendant is not entitled to security for costs from a non-res- ident plaintiff, suing as adminis- r,42 INDEX. trator, especially after a plea. Goodrich v. Pendleton, 520 9 If the non-residence of the plain- tiff appears on the face of the bill, and the defendant demurs, pleads, or takes any other step in the cause, or even prays for time to answer, it is a waiver of his right to security for costs. ib. COVENANT. Vide ACTION, 3 CREDITOR. Vide DEBTOR AND CREDITOR. EXE- CUTION. D. DEBTOR AND CREDITOR. J G. assigned a cargo and the pro- ceeds, &c. to K. in trust for the benefit of K. and M., but M. was to be first secured and satisfied for his advances to G. to enable G. to pay certain bills accepted by him drawn and negotiated by M. to pay for the cargo, &c. G. and K. afterwards, with the as- sent, as they alleged, of the agent of M., but without the knowledge or consent of M., cancelled the deed of assignment, which was dated the 7th of February, and executed another deed of assign- ment, on the 28th of February, to K. and S., in trust to pay M. and K. and certain other creditors named therein ; and in case the fund proved insufficient to pay all the debts specified, that then it should be distributed ratably, be- 498 tween M., K., and the other creditors named, in proportion to their respective demands ; and the fund eventually proved insufficient to pay all the debts specified in the second assignment : Held, that the cancelling of the first assignment, by G. and K., was fraudulent, as regarded the plair- tiff M,, who was therefore entitled to the full benefit of that assign- ment, and must be first, and ex- clusively paid, out of the fund, his whole demand; and that the second assignment, so far as it was inconsistent with the first, or as to the right of the plaintiff to be first paid, was void. Messonier v. Kaurnan, Gomparts, and others, 3 2. The personal estate of an intes- tate is the primary fund for the payment of debts, and is to be first resorted to by the creditor, at law. M'Kay v. Green and others, 56 3. He can only come into this Court for an account and discovery of assets, and on the ground of a trust in the executor or adminis- trator to pay debts ; not for a sale of real estate, on a supposed equi- table lien, arising from the money advanced by him having been ap- plied to purchase the land. ib. 4. Whether a creditor in an ordinary case, and without some special cause, can come into this Court to collect his debt from an execu- tor or administrator, or merely to enforce a ratable distribution of assets 1 QtHzre. ib. 5. Under the first section of the stat- ute of frauds, (sess. 10. c. 44. 13 Eliz. c. 5.) a fraudulent convey- ance by a debtor is *' utterly void," as to creditors, saving a bonajide purchaser for a valuable consider- ation, and without notice of the fraudulent intent. Roberts and Boyd v. Anderson, 378 6. But a bonajide purchaser from a INDEX. fraudulent grantee acquires no title by the conveyance against the creditors of the fraudulent grantor. Roberts and Boyd v. Anderson, 378 7. M. 4* S., partners in trade, being greatly indebted in the United States and in Europe, on the 2d of December, 1799, conveyed certain lands to It., in trust, for the security and payment of cer- tain European or German credit- ors, until they were paid, or S. should be absolutely exonerated and discharged therefrom by the said creditors, and their demands transferred to M. alone, or S. be otherwise exonerated, acquitted, or discharged therefrom ; and after the said debts should be sat- isfied, or the said S. be so dis- charged and released, then in trust for M. M. fy S., having com- mitted an act of bankruptcy in July, 1800, were duly discharged from their debts under the late bankrupt law of the United States, passed April 4th, 1800. Held, that this was a valid deed, and that the discharge of S. from the partnership debts, under the bankrupt law, was not a fulfilment of the condition on which the trust for the German creditors was created. ftFMenomy v. Murray and others, 435 8. A discharge under a bankrupt law of this country does not discharge the debtor from debts contracted and made payable in Europe, or a foreign country, unless the foreign creditors come in, and prove their debts under the commission, ib. 9. But even if the discharge under the bankrupt law should be deemed a discharge from any suit in the United States, for debts due to the German creditors of S., yet that would not satisfy the terms and conditions of the deed of trust, unless it also operated as a dis- charge in Germa ay, where the debts were contracted. ib. 10. A debtor may give preferences to some of his creditors, when no legal lien intervenes, and when it is done fairly, and from honest motives. S. C. 444 S. P. M'Menomy v. Roosevelt and others, 446 11. A voluntary settlement after mar- riage by a person indebted at the time, is fraudulent and void against creditors. Rcade v. Liv- ingston and others, 492 12. A voluntary settlement by a person indebted is presumed fraudulent as against all existing debts, with- out regard to their amount, or to the extent of the property settled, or to the circumstances of the party. S. C. 500 13. But with respect to subsequent debts, it seems, that the presump- tion of fraud arising from the party's being indebted at the time, may be repelled by circumstances ; as that the existing debts are se- cured by mortgage, or by a pro- vision made for them in the settle- ment. S. C. 501 14. And subsequent creditors may im- peach the settlement on the ground of prior indebtedness, if he can show antecedent debts sufficient in amount to afford reasonable evi- dence of a fraudulent intent ; for he is not obliged to show the ab- solute insolvency of the person making the settlement. ib. Vide EXECUTION. MORTGAGE, I, 8, 9, 10. PLEADING, I. 2, 3. DECEIT. Action on the case for, vide ACTION, 5. DECREE. I. There can be no valid decre 499 544 INDEX. against an infant, by default, nor on his answer by his guardian ; but the plaintiff must prove his demand in Court, or before a master, and the infant will have a day in Court, after he comes of age, to show error in the decree. Mills v. Dennis and others, 367 2. But if, instead of seeking a fore- closure of the mortgage against the infant heir of the mortgagor, there is a decree for the sale of the mortgaged premises, the de- cree will bind the infant. ib. 3. A decree entered by default, and enrolled, was set aside on motion, on payment of costs, the plaintiff having previously been served with notice of the motion, and copies of the affidavits, on which it was intended to be made. Beckman v. Peck, 415 Proceeding on decree, notwithstanding an appeal, vide APPEAL. Vide INFANT, 4, 5, 6. PRACTICE, II. 3. DEFAULT. Decree by default, vide DECREE. PRACTICE, II. DEMURRER. Vide DISCOVERY, 3 PLEADING, V. DEPOSITION. Vide EVIDENCE, I. 1 DESCENT. Of equitable estate, vide HEIR, 1. 500 DEVISE. 1. A testator must have a legal 01 equitable title in the land devined, at the time of making the will, otherwise nothing passes by the devise. A subsequently acquired title will not pass by it. M'Kin- non v. Thompson and others, 307 S. P. Livingston and others v. New- kirk and Wife, 312 2. Where a devise fails for want of title in the devisor, the devisee will not be relieved out of other parts of the estate, though the de- visor had a judgment which was a lien on the land. STKinnon v. Thompson and others, 307 3. An equitable interest in lands, founded on articles of agreement for the purchase, will pass by a subsequent devise ; and if there be no devise, it will descend to the heir ; and the executor must pay the purchase money for the benefit of the heir. Livingston and others v. Newkirk and Wife, 312 Devise by wife, under a power re- served in a marriage settlement, or ante-nuptial contract, vide POWER. DISCHARGE. Of bankrupt, vide FOREIGN LAWS, 5. DISCOVERY. 1. After a verdict at law, the party comes too late with a bill of dis- covery. Duncan v. Lyon, 351 2. Where the plaintiff was sued at law on notes alleged by him to be usurious, and he suffered a verdict and judgment to be taken against him without making a de- fence, or applying to this Court on INDEX. a bill )f discovery in due season, he was held concluded, and not entitled to relief. Thompson v. Berry and Van Buren, 395 3. Where the widow of a deceased partner filed a bill against the ex- ecutors of her husband fora discov ery and account of the co-partner- ship estate and effects ; and the surviving partner demurred to that part of the bill which sought a discovery, alleging that it might subject him to penalties under the revenue laws of the United States, but without showing how or for what cause he should incur a penalty by a discovery, the Court overruled the demurrer : such a general allegation not being suffi- cient to bar the discovery in the first instance. Sharp v. Sharp, 407 4. A bonajide purchaser, in posses- sion of an estate, is entitled to a discovery of the grounds, on which his title is sought to be impeached by the defendants, who had re- vived a judgment against the person from whom the plaintiff derived his title, and which he alleged had been satisfied, and had issued an execution, under which the sheriff had levied on the estate and advertised it for sale. Kimberly v. Sells and others, 467 5. On a bill of discovery for matters material to the defence of the party in a suit at law, the nature of the defence at law must be stated, otherwise this Court will not grant an injunction. M'ln- tyre and others v. Mancius and Brown, 45 Vide PLEADING, V. 27. DIVORCE. On a bill by a husband for a divorce, the wife will not be allowed ali- mony, nor /ill the Court, on her motion, order the husband to ad- vance money to enable her to de- fend the suit, until she has, by her answer, disclosed the nature of her defence. Lewis v. Lewis, 519 E. ELECTION. 1. A creditor filed a bill to set aside, or to obtain relief against a judg- ment confessed by his debtor in the Supreme Court, on the ground of fraud, and obtained an injunc- tion to stay all proceedings on the judgment ; and while the suit was pending in this Court, he pro- ceeded at law, and recovered judgment against his debtor, and issued execution thereon, under which the property of the debtor was advertised for sale. The Court refused to dismiss the bill on the petition of the defendants; but ordered the plaintiff to make his election, either to stay his ex- ecution at law during the con- tinuance of the injunction, or consent to have the injunction dissolved ; and the plaintiff' re- fusing to make an election, the injunction was, forthwith, dis- solved. Livingston v. Kane and others, 2'24 2. Where the plaintiffs sued the defendant on his contract at law, and a few days before the trial of the cause, discovered facts amounting to a fraudulent con- cealment by the defendant ; but proceeded to take a verdict for the amount claimed, on which judgment was entered up ; and they afterwards filed their bill in this Court for relief against the contract, on the ground of the 501 616 INDEX. fraud : Held, that by going to trial, and taking judgment, the plaintiffs had made their election of their remedy at law, and the remedies at law and in equity being inconsistent, they were bound by that election. Sangcr and others v. Wood, 416 3. Any decisive act of the party, with knowledge of his rights and of the fact, determines his election, hi the case of inconsistent reme- dies, ib. EQUITABLE ESTATE. Vide MORTGAGE, I. 1. EQUITY OF REDEMPTION. Vide MORTGAGE. EVIDENCE. I. Written evidence. II. Parol evidence, witnesses, and ex- amination. I. Written evidence. \. A deposition taken in an eject- ment suit at law, brought by the defendants against a third person as tenant, to recover the land, the p abject of the suit here, is not ad- missible in evidence against the plaintiffs; it being res inter alias acta. Roberts and Boyd v. An- derson, 371 II. Parol evidence, witnesses, and ex- amination. 2. A person who has fraudulently ac- quired title to land, and fraudu- lently conveyed it, though by a mere quit-claim deed, without covenants, is not a competent witness for his grantee, in a suit 502 brought against him by a peison claiming it, as a bona Jide pur- chaser. Roberts and Boyd v. Anderson, 371 3. The rule of evidence as to im peaching the credit of witnesses who have been examined, should be the same in equity as at law ; the inquiry ought to be general, as to the general character of the wit- ness for veracity. Troup v Sherwood and Wood, 558 4. But it seems, that on a special ap- plication to the Court, the inquiry may be allowed to go beyond the general credit, as to particular facts affecting his character, pro- vided those facts are not material to the matter in issue between the parties. ib. 5. A defendant who is charged by the plaintiff as fraudulently col- luding with his co-defendant, in regard to the transactions sought to be impeached, cannot be a wit- ness for his co-defendant, especial- ly when he has an interest in the cause arising from his liability for costs and his ultimate responsi- bility if the charge is proved. Whipplc and Wife v. Lansing ana Van Rcnsselaer, 6] 2 6. And the cause, after issue, having been referred to a master, by consent, to take an account, he cannot be allowed to be examined before the master, even as a wit- ness de bene csse. ib. Articles to impeach the credit of wit- nesses, vide PRACTICE, V. 14, 15 16, 17, 18, 19. EXECUTION. A judgment creditor, other than the mortgagee, may sell the equity of redemption on execution. Shot- tenkirk and others v. Wheeler anA others, 275 INDEX. Execution notwithstanding an appeal, vide APPEAL, 1, 3. EXECUTOR AND ADMINIS- TRATOR. I. Assets. II, Administration and payment of debts and legacies. III. Actions by and against, and costs in such actions. I. Assets. 1. The personal estate of an intes- tate is the primary fund for the payment of debts, and is to be first resorted to by the creditor, at law. M'Kay v. Green and others, 56 2. He can only come into this Court for an account and discovery of assets, and on the ground of a trust in the executor or adminis- trator to pay debts ; not for a sale of real estate, on a supposed equi- table lien, arising from the money advanced by him, having been applied to purchase the land. ib. 3. Whether a creditor in an ordinary case, and without some special cause, can come into this Court, to collect his debt from an execu- tor or administrator, or merely to enforce a ratable distribution of assets 1 Qiitzrc. ib. 4. A mortgage interest before fore- closure is a chattel and personal assets, belonging to the executor. Demarcst and Wife v. Wynkoop and others, 145 5. In marshalling assets, the estate descended to the heir is to be applied to the payment of debts, before the estate devised, unless devised specially to pay debts. Livingston v. Livingston and others, 148 6. Where the personal estate is in- sufficient for the payment of th testator's or intestate's debts, the Court of Probates, under the ac for that purpose, may sell the rea 1 estate of which the testator or in testate died seised ; but not lands held in trust for the testator. ib. 7. The heir is not entitled to contribu- tion from the devisee, towards the satisfaction of creditors. ib. 8. Nor does equity help a pecuniary legatee to throw a debt against the personal estate upon a devisee of land. ib. 9. But different devises, in respect to a charge on all the estate de- vised, must contribute, on a de- ficiency of assets, in proportion to the value of their respective in- terests ; as, to pay an annuity to the widow of the testator, or debts of the testator remaining unsatis- fied after the personal estate and all the real estate not devised, had been exhausted. ib. 10. Equity will marshal assets de- scended to the heir, in favor of, and for the relief of, specific lega- tees. S. C. 153 11. Where a person takes a convey- ance of land subject to a mort- gage, coven an ting to indemnify the grantor against the mortgage, and having paid off part of the encum- brance, dies intestate, the land is the primary fund to be resorted to for payment of the residue, and the heir cannot throw the charge upon the personal representatives. Duke of Cumberland and others v. Codrington and others, 229 12. If the purchaser has even rendered himself liable, at law, to the mnrl gagee, or creditor, for the pay- mentof the debt, this circumstance will not be sufficient to change the natural course of assets ; there must also be proof of strong and decided intention to subject the personal estate to the charge, ib. 13. By an express direction in his will, 503 648 INDEX or by dispositions, or language equivalent to an express direction, the purchaser may throw the charge upon his personal assets. Duke of Cumberland and others v. Codrington and others, 229 14. If the purchaser, having subjected his personal estate to the charge, dies, and the land descends to his heir, who is also his personal representative, although the per- sonal funds of the ancestor, in the hands of the heir, were liable for the debt, yet on the death of the heir, his personal assets are not the primary fund for payment, ib. 15. An executor or administrator can- not bind the personal assets, for a debt not chargeable upon them before. S. C. 273 (6. The order of marshalling assets, towards the payment of debts, is, to apply, 1. The general personal estate ; 2. Estates specifically and expressly devised for the payment of debts, and for that purpose only ; 3. Estate descended ; 4. Estates specifically devised, though gener- ally charged with the payment of debts. Livingston and others v. Newkirk and Wife, 312 17. If an executor or administrator pays debts out of his own money, to the value of the personal assets in hand, he may apply those assets toreimburse-himself; and by such election, the assets become his own property. ib. Vide MORTGAGE, I. 6. !I Administration and payment of debts and legacies. 18. An equitable interest in land, founded on articles of agreement for the purchase, will pass by a subsequent devise ; and if there be no devise, it will descend to the heir ; and the executor must 504 pay the purchase money for the benefit of the heir. Livingston and others \. Newkirk and Wife, 312 19. Where a deed to the testator comes in the possession of the ex- ecutor, who does not produce it, or account for its loss, the most favorable intendrnent, as to its contents, will be made for the benefit of the heir. ib. 20. If an executor or administrator pays debts out of his own moneys, to the value of the personal assets in hand, he may apply those assets to reimburse himself; and by such election the assets become his own property. ib. 21. If an executor be directed to sell land, it seems, that he cannot re- tain it, as he may personal assets, ib. 22. But if the personal assets prove insufficient, and the executor has paid debts out of his own money, to the value of the land, he may, if the land is ordered to be sold, re- tain the proceeds for his own in- demnity, ib. 23. The order of marshalling assets, towards the payment of debts, is to apply, 1. The general personal estate ; 2. Estates specifically and expressly devised for the payment of debts, and for that purpose only ; 3. Estates descended ; 4. Estates specifically devised, though generally charged with the payment of debts. ib. 24. Where the testator devised his real and personal estate to his executors, for the payment of his debts; on a bill for an account, stating that the executors refused to distribute the personal estate, and to sell and distribute the pro- ceeds of the real estate ratably among the creditors, and threat- ened to transfer it to secure certain favorite creditors, who were enti- tled to no preference at law, or in equity, the Court granted an in INDEX. 649 i to restrain the executors o.n selling or disposing of the estate. Depau v. Moses and others, 349 25. But whether this Court will, in such a case, at the instance of a creditor, compel a ratable distribu- tion of assets by the executors ? Qiicere. ib. 26. Where administrators sold the leasehold estate of the intestate, and took the promissory note of the purchaser, on a credit, with- out any security for the payment of the purchase money, the ad- ministrators were held liable to the next of kin for the amount, the purchaser having become insolvent. King v. King and Sharpe, 552 Liability of estate of executor to lega- tees and representatives of testa- tor, vide ACCOUNT, 1, 2, 3. Til. Actions by and against, and costs in such actions. 27. An executor cannot plead the statute of limitations in bar to a legacy, though he may against a creditor. Decouche and others v. Savetier and others, 217 23. An administrator, being a trustee, cannot set up the statute of limi- tations in bar of the next of kin, or the persons entitled to the dis- tribution of assets. ib. 29. Where a bill is filed by an execu- tor for a settlement of his ac- counts, and for disclosures as to distribution, &,c., the defendants are not entitled, on petition, to an inspection of the accounts and vouchers of the executor, to ena- ble them to answer the bill. Denning v. Smith and others, 409 Vide COSTS, I. 7. II. 8. VOL. III. 64 EXTINGUISHMENT. Of mortgage, vide MORTGAGE, I. 1. F. FACTOR. Vide ACCOUNT, 6. AGENT, 4. 7, 8l INTEREST, 4. JURISDICTION, 5. PARTNERSHIP, 7, 8. FEME COVERT. Vide BARON AND FEME. FORECLOSURE Vide DECREE, 2. MORTGAGE FOREIGN LAWS. 1. Rights dependent on the nuptial contract are governed by the lei, loci contractus. Decouche and others v. Savetier and others, 190 2. A contract of marriage, executed in Paris, between French citi- zens, contained a clause (dona- tion mutuelle) by which the par- ties mutually gave to each, and the survivor, all the estate and property, acquired and purchased, or belonging to either, at the time of his or her death, to be enjoyed by the survivor exclusively ; the husband afterwards abandoned his wife, and came to reside in New- York, where he lived many years, having acquired a large personal estate, and died intestate, without lawful issue, leaving his wife living in France. Held, that the wife, as survivor, took all the estate, under the donation, ac- cording to the law of Frame, to 505 G50 INDEX. the exclusion of the relations of the husband ; and that her legal representatives, after her decease, were entitled to the whole, in- cluding not only what originally entered into communaute under the contract, but the separate property intended, in case of issue living at the death of either, to go to the children, as well as the joint increase of the common stock, during the life of the intes- tate, and the increase thereof, since his death, in the hands of the administrator. Dccouche and others v. Savetier and others, 190 3. The time of limitation of actions depends on the lexfori. and not on the lex loci contractus. ib. 4. The descent of personal property, wherever situated, must be gov- erned by the laws of the country of the intestate's domicil. S. C. 210 5. A discharge under the bankrupt law of this country does not dis- charge the debtor from debts con- tracted and made payable in Eu- rope, or a foreign country, unless the foreign creditors come in, and prove their debts under the com- mission. M'Mcnomy v. Murray and others, 435 6. In all questions arising between the subjects of different states, each is to be considered as a party to the laws and authoritative acts of his own government. Conse- qua v. Fanning and others, 587 7. Interest is payable according to the laws of the country where the debt is contracted and is to be paid. ib. 8 Where a Chinese merchant con- signs goods to a merchant in New-York, for sale, which are de- livered at Canton to the agent of the New-York merchant, who neglects to remit the proceeds to the consignor, the latter is entitled to interest on the amount, accord 506 ing to the law and custom of China, being twelve per cent, ib FORMA PAUPERIS. Vide COSTS, I. 2, 3. FRAUDS, (STATUTE OF.) Memorandum in writing of an agree' ment. 1. A promise in consideration of marriage must be in writing ; and if not reduced to writing before the marriage, the defect cannot afterwards be supplied, so as to impair the intervening rights of third persons. lieade v. Living- ston and others, 488 2. So a settlement after marriage, in pursuance of a parol agreement entered into before marriage, is not valid as against prior creditors. ib. 3. But a settlement after marriage, in pursuance of a valid written agreement before marriage, is good. ib. 4. Though a settlement after mar- riage recites a parol agreement entered into before marriage, it seems, that it would not, there- fore, be valid against creditors, ib. FRAUDULENT CONVEYANCE. 1. Under the third section of the act to prevent frauds (sess. 10. c. 44. 27 Eliz. c. 4.) which was intended to protect bona Jide purchasers, a purchaser for a valuable con- sideration, without notice, from a fraudulent or voluntary grantee, will be preferred to a subsequent purchaser, for a valuable consid- eration, without notice. Roberts and Boyd v. Anderson, 371 I N D E X . 2. The first purchaser has the pref- erence, whether he takes his con- veyance from the grantor or grantee. ib. 3 Under the first section of the statute, (sess. 10. c. 44. 13 Eliz. c. 5.) which was made to protect creditors, a fraudulent conveyance by a debtor is utterly void as to creditors, unless made, for a valu- able consideration, to a bonajide purchaser, without notice of the fraudulent intent. ib. 4 But a bonajide purchaser from a fraudulent grantee acquires no title, by the conveyance, against the creditors of the fraudulent grantor. ib. 5. A debtor in failing circumstances, or insolvent, may, bonajide, pre- fer one creditor to another. M'Menomy v. Roosevelt and others, 440 S. P. M'Menomy v. Murray and others, 444 6. A conveyance by a debtor of his property to secure a bona Jide creditor, executed prior to the 1st of June, 1800, though made in contemplation of bankruptcy, is valid, not being within the purview of the bankrupt law of the 4th of April, 1800, which did not go into operation until after the 1st of June following ; nor is it fraudulent at common law. M'Menomy v. Roosevelt and others, 446 7. A settlement after marriage, in pursuance of a parol agreement entered into before marriage, is not valid. Reade v. Livingston and others, 481 8. Aliter, if made in pursuance of a written agreement prior to the marriage. ib. 9. Though a settlement after mar- riage recites a parol agreement entered into before marriage, it seems that it is not therefore valid against creditors. ib. 10. A voluntary settlement after mar riage, by a person indebted at the time, is fraudulent and void against all such antecedent cred- itors ; and that without regard to the amount of the existing debts, or the extent of the property set- tled, or the circumstances of the party. id. 11. But with regard to debts arising subsequent to the settlement, it seems that the presumption of fraud, arising in law, from the party's being indebted at the time, may be repelled by circumstances, as that the antecedent debts were secured by mortgage, or were pro- vided for in the settlement. ib. 12. And if the presumption of fraud is not so repelled, it seems that sub- sequent creditors may impeach the settlement, by showing ante- cedent debts sufficient in amount to afford reasonable evidence of a fraudulent intent ; for as on the one hand, showing an antecedent debt, however small or trifling, is not sufficient to make the settle- ment fraudulent and void, so, on the other, the subsequent credit- or, to impeach it, is not obliged to prove that the party was abso- lutely insolvent at the time. ib. 13. When a voluntary settlement is set aside as against antecedent creditors, subsequont creditors will be allowed to come in for sat- isfaction of their debts. S. C. 49'T 14. Under the 13th Eliz. c. 5. (sess. 10. c. 44. 3.) there is a distinc- tion between prior and subsequent creditors, in regard to voluntary settlements. S. C. 50 C J 15. A settlement is not void, as of course, against the latter, when there were no prior debts at the time. ib. 16- A voluntary deed not delivered to the grantee, and kept concealed from the public for near eighteen 507 INDEX. years, during which time the grant- or remained in possession of the premises, as owner, cannot be set up against a third person dealing with the grantor as owner, although he may have heard of the existence of the deed, at the time he took his mortgage. Ferine v. Dunn, 508 17. But the grantee, being the heir at law of the grantor, has a right to redeem. ib. Vide BANKRUPT, 1 . 5. H. HEIR. 1. An equitable interest in land, founded on articles of agreement, if undevised, passes to the heir; and the executor must pay the purchase money for the benefit of the heir. Livingston and others v. Newkirk and Wife, 312 2. Where a deed to the testator comes into the possession of the executor, who does not produce it or account for its loss, the most favorable intendment, as to its contents, will be made for the benefit of the heir. ib. Infant heir, vide DECREE, 2. Vide MORTGAGE, I. 12. HUSBAND AND WIFE. Vide BARON AND FEME. I. IDIOT AND LUNATIC. A committee of a lunatic is enti- tled to an allowance, by way of compensation of his services, in 508 receiving and paying out moneys, within the equity of the statute, (sess. 40. c. 25.) authorizing this Court to make a reasonable allow- ance to guardians, executors and administrators, for their services. In the Matter of Roberts, 43 2. In the management of a lunatic's estate, the interest of a lunatic is more regarded than the contin- gent interest of those who may be entitled to the succession ; and ' the Court, if it be for the interest of the lunatic, will direct timber on the land of the lunatic to be sold. In the Matter of Salisbury, 347 3. So the real estate may be con- verted into personal, or personal into real, if for the benefit of the lunatic. ib. 4. On the petition of a lunatic to su- persede the commission, and to be restored to his estate, on his recovery, the Court will either order it to be referred to a master, to take proof as to the allegations in the bill, and to examine the lunatic, if he thinks fit, and to report the proof, and his opinion thereon, or direct the lunatic him- self to attend in Court, to be ex- amined by the chancellor. In the Matter of Hanks, 567 INCUMBRANCE. Vide MORTGAGE. INFANT. 1. Where the fund was clear, and the rights of the respective parties ascertained, the Court directed, pending the account, apart of the money? to be paid to the solicitor of infant plaintiffs, towards further defraying the past a id future expenses of the suit, and the in- terest on the residue of the portion INDEX. 653 coming to such infants, to be paid to their mother, for their neces- sary maintenance and education. Methodist Episcopal Church and others v. Jaques and others, 1 2. Where a man was married to an infant under 12 years of age, who immediately declared her igno- rance of the nature and conse- quences of the marriage, and her dissent to it ; the Court, on a bill filed by her next friend, ordered her to be placed under its pro- tection, as a ward of the Court, and forbade all intercourse or cor- respondence with her by the de- fendant, under pain of contempt. Ay mar v. Roff", 49 3. There can be no valid decree against an infant, by default, nor on his answer by his guardian ; but the plaintiff must prove his demand in Court, or before a master, and the infant will have a day in Court, after he comes of age, to show error in the decree. Mills v. Dennis and others, 367 4 But if, instead of seeking a fore- closure of the mortgage against the infant heir of the mortgagor, there is a decree for the sale of the mortgaged premises, the decree will bind the infant. ib. 5. A sale is the most usual course, as being the most beneficial to both parties. ib. 6 But before a decree for the sale, there must be a special report of a master, of the proof of the debt before him, of the amount due, and of what part, if less than the whole, of the mortgaged premises, a sale will be sufficient to raise the amount of debt, and at the same time be most beneficial to the infant. ib. 7 The Court may change the estate of infants, from real into personal, and from personal into real, when- ever it deems such a proceeding most beneficial to the infant. S. C. 370 INJUNCTION. I. Injunction to stay waste or trespass II. Injunction to stay proceedings a; law. III. Injunction for other purposes. IV. Dissolving injunction. I. Injunction to stay waste or trespass. 1. On affidavits of a breach of an in- junction to stay waste, and of per- sonal service of a copy of the affidavits, and of notice of the motion, an attachment was or- dered to bring up the defendant to answer for the contempt. Schoonmaker v. Gillet, 311 II. Injunction to stay proceedings at law. 2. On a bill of discovery for matters material to the defence of the party in a suit at law, the nature of the defence at law must be stated, otherwise this Court will not grant an injunction. M'ln- tyre and others v. Mancius and Brown, 45 Vide LOAN-OFFICERS, 3. III. Injunction for other purposes. 3. Where the bill charges an execu- tor or trustee with abusing his trust, &.C., an injunction will no' be awarded in the first instance, but a receiver may be appointed. Boyd and Wickham v. Murray, 48 4. Where the testator devised his real and personal estate to his executors, for the payment of his debts ; on a bill for an account sta- ting, that the executors refused 10 distribute the personal estate, and to sell and distribute the proceeds of the real estate ratably among the creditors, and threatened to 509 551 INDEX. transfer it to secure certain fa- vorite creditors, who were enti- tled to no preference at law or in equity, the Court granted an in- junction to restrain the executors from selling or disposing of the estate. Depau v. Moses and others, 349 5. The apprehension of one partner that the other will misapply the partnership funds, and abuse his trust, is not a ground for an in- junction to restrain him from in- terfering with the partnership ac- counts and effects. Woodward v. Schatzel and others, 415 IV. Dissolving Injunction. 6. A creditor filed a bill to set aside, or to obtain relief against, a judg- ment confessed by his debtor in the Supreme Court, on the ground of fraud, and obtained an injunc- tion to stay all proceedings on the judgment ; and while the suit was pending in this Court, he pro- ceeded at Jaw, and recovered judgment against his debtor, and issued execution thereon, under which the property of the debtor was advertised for sale. The Court refused to dismiss the bill, on the petition of the defendants ; but ordered the plaintiff to make his election, either to stay his ex- ecution at law during the contin- uance of the injunction, or con- sent to have the injunction dis- solved ; and the plaintiff refusing to make an election, the injunc- tion was forthwith dissolved. Livingston v. Kane and others, 224 INSURANCE Where (?., being about to depart from New- York on a voyage to the East Indies, gave an order for in- surance on his life to the amount 510 of 3,000 pounds sterling, which was accepted by the Insurance Company in London, and the agents of M., who undertook to complete the business, paid the premium for one year, and re- ceived the policy for that amount, to continue for 10 years, at the election of G. ; but M. afterwards, alleging that there was a mistake, without the knowledge or consent of G,, procured this policy to be cancelled by the insurers, and another policy to be executed by them for 450 pounds, the differ- ence of premium being refunded by the insurers : it was held, that M., by thus procuring a valid and existing contract of insurance to be cancelled, substituted himself for the insurers, and was answer- able to the legal representative of G., who died within a year, for the amount insured by the origi- nal policy, after deducting the premium. Gray v. Murray, 167 INTEREST. 1. Unsettled accounts do not bear interest. Conscqua v. Fanning and others, 587 2. Where a balance of an account is paid without any charge of inter- est, interest cannot afterwards be demanded. ib. 3. Interest is payable according to the laws of the country where the debt is contracted, and is to be paid. ib. 4. Where a Chinese merchant con- signs goods to a merchant in New-York for sale, which are de- livered at Canton to the agent of the New-York merchant, who neglects to remit the proceeds to the consignor, the latter is enti- tled to interest on the amount, ac- cording to the law and custom of China, being twelve per cent. ib. INDEX 653 J. JUDGMENT. I Though a judgment at law may be impeached in this Court for fraud, yet this Court will never interfere with a judgment at law on the ground of irregularity ; but the record of the judgment, and execution, and title under them, are a conclusive bar in equity. It belongs to the Court of law, ex- clusively, to inquire into the reg- ularity of its judgment. Shotten- kirk and others v. Wlicelcr and others, 275 2. It seems that a Court of law will not set aside a judgment after a lapse of 20 years, on the ground of irregularity. ib. JURISDICTION. 1. A Court of Chancery does not in- terfere to prevent or remove a private nuisance, unless it has been erected to the annoyance of the right of another, long previ- ously enjoyed. Van Bergen v. Van Bergen, 282 2. It must be a case of strong and imperious necessity, or the right previously established at law, be- fore the party is entitled to the aid of this Court. ib. 3. After a trial at law, or a report of referees, a party cannot have the aid of this Court, unless he can impeach the justice of the verdict or report, by facts, or on grounds of which he could not have availed himself before, or was prevented from doing it by fraud or accident, or by the act of the opposite party, without any negligence or fault on his part. Duncan v. Lyon, 351 4. Equity has not an exclusive juris- diction between copartners in matters of account. S. C. 360 5. M. 4* T. being owners, ir: certain proportions, of goods lying at Cadiz , M. consigned the whole to T* of P. for sale, on their joint account, according to their re- spective interests ; and T. put the goods, with the invoice and bill of lading, into the hands of B. fy C., partners in trade here, to sell : Held, that B. tip C. could not retain the proceeds in their hands to satisfy a demand of B. against M. That T., as part owner, and as factor and agent of M., the other part owner, might maintain an action in his own name against B. 4* * f r the proceeds ; ana that the defendants could not set off against the plaintiff the separ- ate demand of B. against M., es- pecially when that demand -was for damages arising from the al- leged negligence and misconduct of M., which were the proper sub- ject of a distinct suit, and of legal, not of equity jurisdiction ; and that B. 4* C. having received the goods for sale, as agents of T., with full knowledge of his rights, and of the capacity in which he acted, and without giving him notice at the time of the claim of B. against J/., were not en- titled to the aid of this Court in their defence of the suit of T. against them at law. Murray v. Toland and Meade, 569 Vide DISCOVERY. JUDGMENT, 1. NE EXEAT REPUBLICA. PLEADING, IV. 20. SET-OFF. L. LACHES AND LENGTH OF TIME. 1. Twenty years possessicn by a mortgagee, without any account, or acknowledgment of a subsist* 511 656 INDEX. ing mortgage, is a bar to all equi- ty of redemption, unless the mort- gagor can bring himself within the proviso in the statute of limit- ations, the construction of which is the same in equity as at law. Demarest and Wife v. Wynkoop and others, 129 2. The disability that entitles the party to the benefit of the proviso, must be existing at the time the right first accrues, so that, if, during the ten years allowed to an infant, a subsequent disability, as coverture, arises, the time con- tinues to run, notwithstanding such second disability. ib. 3. Successive or cumulative disabili- ties are riot within the policy, or a settled and sound construction of the statute. ib. 4. Right to redeem in equity, and right of entry at law, are analo- gous. S. C. 135 5. The construction of the statute of limitations is the same in equi- ty as at law. S. C. 136 6. No lapse of time is a bar to a di- rect trust, as between trustee and cestuy que trust. Decouche v. Saveticr and others, , 190 S. P. Goodrich v. Pcndltton, 390 7. Therefore, an administrator, being a trustee, cannot set up the stat- ute of limitations in bar to the next of ';in, or persons entitled to the distribution of the assets. Durwifhr nnd others v. Savetier and otutn, 190 8. But where a person takes posses- sion of property in his own right, and is, afterwards, by matter of evidence or construction, changed into a trustee, lapse of time may be pleaded in bar. ib. 9. An executor cannot plead the statute of limitation? in bar to a legacy, though he may against a creditor. ib. 10. The time of limitation of actions depends on the lexfori, and not on the lex loci contractus. ib. 512 11. Where an executor puts bonds and notes due to the testator, into the hands of an attorney to col- lect, and after the death of the executor, the attorney collected the money, and applied it to hia own use, and became insolvent : Held, that the estate of the exec- utor was not chargeable with the loss, especially after a lapse of more than six years. Rayner and others v. Pearsall and others, 578 Vide COSTS, I. 5. EXECUTOR AND AD- MINISTRATOR, III. 27, 28. PLEAD- ING, IV. 22, 23. LAW. Action at law, vide ACTION. Election to proceed at law or in equity, vide ELECTION. General principle of law, vide FOREIGN LAWS, 6. Foreign, vide FOREIGN LAWS. LEGACY 1. Where there are several legacies given, which are to be increased or diminished, as the estate should increase or diminish, one legatee may file a bill in behalf of him- self, and the other legatees who may choose to come in, against the executors, for an account and payment. Brown v. Ricketts, 553 2. But when the bill is for the resi- due, all the residuary legatees must be made parties. ib. 3. Where the plaintiff, in his bill, sets up a claim, independent of the will, to part of the property de- vised in trust to pay the legacies, he must elect to waive his claim, or wait until it be determined, INDEX. 6 before he can call for an account, or payment of part of his legacy. ib. Vide BARON AND FEME, 11, 12, 13. LEGAL ESTATE. Vide MORTGAGE, I. 1. LEX LOCI. Vide FOREIGN LAWS. LIEN. * Of factor, vide PARTNERSHIP, 8. LIFE. Insurance on, vide INSURANCE. LIMITATION OF ACTION. Vide FOREIGN LAWS, 3. LACHES AND LENGTH OP TIME. Plea of the statute of limitations, vide PLEADING, IV. 22, 23. LOAN-OFFICERS. 1. Though by the act authorizing the loan of money, fyc. (sess. 31. c. 216.) the mortgagor, after a de- fault of payment, loses all equity of redemption, and the commis- sioners become seised of an ab- solute estate in the premises ; yet the commissioners are trustees for the people, to the amount of the mortgage debt and interest, and for the mortgagor, in respect to the surplus ; and the mortga- gor, as well as the people, has a right to demand of the commis- sioners a faithful execution of the trust. Denning and others v. Smith and others, 332 2, The notice of sale, according to the true construction of the act, VOL. III. 65 must continue to be Jfrxcd up at three public places, and be ad- vertised in a public newspaper of the county, from eight days after the 4th Tuesday of May, to the 3d Tuesday of September, or the time of sale. ib. 3. And where, on a default of the mortgagor, the commissioners caused the mortgaged premises to be sold, without giving due public notice of the sale, pursu- ant to the act, and under circum- stances denoting fraud and collu- sion, on the part of one of the commissioners, the sale was set aside, and the deed executed by the commissioners ordered to be delivered up to be cancelled ; and the proceedings in an action of ejectment brought by the pur- chaser, to be stayed by a perpet- ual injunction. ib. 4. The notices of sale required by the act to be fixed up in three public places, mean that they should be put up in those places best calculated to bring home the notice of sale to the mortgagor, and to all persons who are most likely to attend as purchasers. S. C. 339 5. Three weeks' notice is not suffi- cient. S. C. 341 6. The notice must contain the name of the mortgagor, and an accu- rate description of the quantity and situation of the land fore- closed, and to be sold. S. C. 342 7. If the commissioners abuse their trust, this Court will afford relief, either by setting aside the sale, and letting in the mortgagor to redeem, or directing the commis- sioners to account for the differ- rence between the sum for which the land was sold, and its real value at the time. S. C. 343 LUNATIC. Vide IDIOT AND LUN* nc. 513 658 > N D E X. M. MAINTENANCE. Advancing money to a poor man to enable him to prosecute his suit, is not maintenance. Ferine v. Dunn, 508 MARRIAGE. 1. Where a man was married to an infant under 12 years of age, who immediately declared her igno- rance of the nature and conse- quences of the marriage, and her dissent to it, the Court, on a bill filed by her next friend, ordered her to be placed under its pro- tection, as a ward of the Court, and forbade all intercourse or correspondence with her by the defendant, under pain of con- tempt. Ay mar v. Rojf, 49 2. Rights dependent on the nuptial contract are governed by the lex loci contractus. Dccouche and others v. Saveticr and others, 190 3. Marriage is a good, valuable, and meritorious consideration for an ante-nuptial contract. Bradish v. Gibbs and others, 550 Marriage settlement, vide BARON AND FEME, 1, 2, 3, 4, 5, 6, 7. 14, 15, 16. 18. FRAUDS, (STATUTE OF.) Vide FOREIGN LAWS, 1, 2. MARSHALLING ASSETS. Vide EXECUTOR AND ADMINISTRATOR, II. 23. MORTGAGE, 1. 6 8, 9. 10. MASTER. Reference to, vide APPEAI 1, 2. MERGER. Vide MORTGAGE, 7 1. 514 MILL. Vide NUISANCE, 3, 4. MORTGAGE. I. Of the mortgage generally. II. Equity of redemption, foreclosure and sale. I. Of the mortgage generally. 1. Where the equitable and legal estate are united in the same per- son, the former is merged in the latter ; as where the owner of an equity of redemption pays off a subsisting mortgage, and takes an assignment of it, it will be in- tended, that he does it to exon- erate his estate from the encum- brance, and that the mortgage is extinguished unless it is made to appear that he has some benefi- cial interest in keeping the legal and equitable estates distinct. Gardner v. Astor, 53 2. A feme covert may mortgage her separate property for her hus- band's debts. Demarest and Wife v. Wynkoop and others, 129 3. So she may also execute a valid power to sell the property, in case of default, pursuant to the statute. ib. 4. In a mortgage by husband and wife, of the wife's separate estate, the wife may, if she choose, re- serve the equity of redemption to the husband alone, who may sell and dispose of it. ib. 5. A mortgage /nterest, before fore- closure, is a chattel, and person al assets ^iclonging to the exec utor. S C. 145 6. As betv-een the representatives of the 7-sal and personal estate, the lan-( is the primary fund to pay oft a mortgage. Duke of Cumberland and others v. Cod- ringtun and others , 252 INDEX. 7. Where a nan gives a bond and mortgage for his own debt, the mortgage is merely a collateral security. S. C. 257 8. But if a purchaser or devisee of land encumbered, renders himself personally liable to the creditor for payment, the land, as far as relates to the marshalling of assets, is the primary fund for payment. ib. 9. Unless a contrary intent be clear- ly shown. ib. 10. The purchaser, by express direc- tions in his will, may throw the encumbrance upon his personal assets, or by dispositions and lan- guage equivalent to an express direction. S. C. 272 11. A voluntary deed not delivered to the grantee, and kept conceal- ed from the public, for near eigh- teen years, during which time the grantor remained in posses- sion of the premises, as owner, cannot be set up against a third person dealing with the grantor, as owner, although he may have heard of its existence at the time he took his mortgage. Ferine v. Dunn, 508 12 But the grantee, being the heir at law of the grantor, has a right to redeem. ib. i -... Equity of redemption, foreclosure, and sale. 13. Where, on a bill to foreclose a mortgage, a subsequent mortga- gee, or judgment creditor, who if made a party defendant, an- swers and disclaims, he is entitled to costs against the plaintiff, to be paid out of the fund, if that is sufficient, and if not, to be paid by the plaintiff; he not having applied to such defendant before cuit brought, to release, or other- wise disclaim. Catlin v. Horned others, 61 14. Where the statute directs the ad- vertisement for the sale of mort- gaged premises to be published "once a week, for six successive months," lunar, not calendar months are intended. Stackhoust v. Halsey, 74 15. Twenty years' possession by a mortgagee, without any account, or acknowledgment of a subsist- ing mortgage, is a bar to all equi- ty of redemption, unless the mortgagor can bring himself with- in the proviso of the statute of limitations, the construction of which is the same in equity as at law. Demurest and Wife v. Wyn/coop and others, 129 16. A sale of mortgaged premises at public auction, by a surviving ex- ecutor of the mortgagee, accord- ing to the statute, is a complete bar to the equity of redemption. ib. 17. And where the sale was regular and fair, but the deed of the ex- ecutor produced, was dated nine- teen years after the time of sale, it was presumed that a deed was duly given at the time, and lost, and that the one produced was executed for greater caution, ib. 18. But, as between the parties, where there is no intervening right, such a deed will take ffect by relation, from the time of the conclusion of the bargain and sale, especially in a Court of equity. ib. 19. In a mortgage by husband and wife, of the wife's separate estate, the wife may, if she choose, re- serve the equity of redemption to the husband alone, who may sell and dispose of it. ib. 20. And a sale by the mortgagee, or his executors, under a power con- tained in the mortgage, pursuant to the statute, is a valid bar to the equity of redemption. ib. 21. Where the statute makes no ex- ception, this Court will make none, 515 660 INDEX. in favor of infants ; but their equity of redemption is barred by the sale. S. C. 146 22. The practice of the English chan- cery, of opening biddings at the master's sales, has not been adopt- ed here. Williamson v. Dale and others, 290 23. But where the executors of a mortgagee were innocently misled, and induced to believe, that the sale of the mortgaged premises would not take place on the day appointed, there being no culpa- ble negligence on their part, the Court, under the circumstances of the case, ordered the sale to be set aside, on the ground of sur- prise, on the defendant's paying to the purchaser all his costs and ex- penses, and the costs of the appli- cation, though the sale was per- fectly regular and fair, and no unfair intention was imputed to the mortgagee or his solicitor, ib. 24. On a bill to foreclose a mortgage, the mortgagee is confined to his remedy on the mortgage. Dunk- ley v. Van Buren and others, 330 25. The suit cannot be extended to the other property, or against the person of the mortgagor, in case the property mortgaged is not sufficient to pay the debt for which it is pledged. ib. 26. The mortgagee's further remedy is at law, where he may sue at the same time on his bond, or on the covenant, to pay the money ; and after a foreclosure of the mortgage in equity, he may sue on his b'ond, at law, for the defi- ciency, ib. 27. It seems, that a subsequent suit at law, to recover the remainder of the debt unsatisfied by the sale of the mortgaged premises, does not open the foreclosure, and revive the equity of redemption. ib. 28 A decree taken pro confesso, on a bill for a foreclosure of a mort- gage, after a sale, and a delay of 516 more than six months, will not be set aside, unless under very spe- cial circumstances. Lansing v. M'Phcrson and others, 424 29. But the sale was opened, the de- fendant, who was bound to make good any deficiency on the sale, offering 50 per cent, more than was bid, on condition of his de- positing that advance with the re- gister, in eight days, and paying the expenses of the former sale. ib. 30. To a bill for a foreclosure and sale of mortgaged premises, all encumbrancers, or persons having an interest, existing at the com- mencement of the suit, subse- quent, as well as prior, in date, to the plaintiffs mortgage, must be made parties, otherwise they will not be bound by the decree. Haines and others \. Beach and others, 459 31. A prior mortgagee, who had, also, a judgment against the mortgagor subsequent to a second mortgage, and on a sale of the premises under the judgment, had pur- chased the equity of redemption, cannot, on a bill filed against the second mortgagee, compel him to pay the judgment, as well as the first mortgage, or be foreclosed ; but the encumbrancers are to be paid in the order of time in which the respective liens at- tached, ib. 32. A purchaser under a sale, by vir- tue of a decree of foreclosure, will only take a title, as against the parties to the suit ; and he cannot set it up against the sub- sisting equity of those encumbran- cers who are not parties. S. C. 464 Decree of foreclosure, or for a sale against infant heir, vide DECREE, 2. INFANT, 3, 4, 5, 6. Vide EXECUTION. LOAN-OFFICERS INDEX. 66 N. NE EXEAT REPUBLICA. 1 . To entitle a party to a writ of ne exeat, his debt or demand must be satisfactorily ascertained : a mere declaration of belief of the ex- istence and amount of his claim is not sufficient ; there must also be a positive affidavit of a threat or a purpose of the party against whom the writ is prayed, to go abroad, and that the debt would be lost, or at bast in danger, by his departure from the state. Mattocks v. Tremain and others, 75 t l. It seems that a writ of ne exeat would not be granted on petition and on motion only, without a bill previously filed. ib. 3. A writ of ne exeat republica may issue against a foreigner, or citi- zen of another state, and on de- mands arising abroad ; but the writ will be discharged on the defendant's giving security to abide the decree. Woodward v. Schatzell and others, 412 4. To sustain the writ, sufficient equity must appear on the face of the bill. Mere apprehension that the defendant will misapply funds in his hands, or abuse his trust, is not sufficient. 'b. NEGLIGENCE. Agent or trustee personally liable for, vide TRUST AND TRUSTEE, II. NEWLY-DISCOVERED EVI- DENCE. Vide PLEADING, II. 9, 10, 11, 12. NOTICE. 1. Though a purchaser at a public sale be chargeable with notice, yet a bona Jide purchaser undei him is not affected by his notice. Demarest and Wife v. Wynkoop and others, 147 2. A purchaser, claiming as a bona Jide purchaser, must, in his an- swer, positively and precisely de- ny notice, and every circumstance from which it can be inferred, although notice is not charged. Denning and others v. Smith and others, 345 3. A purchaser for a valuable consid- eration, without notice, from a voluntary or fraudulent grantee, will be preferred to a subsequent purchaser for a valuable consider- ation, without notice, from the original grantor. Roberts and Boyd v. Anderson, 377 4. The first purchaser for a valuable consideration, whether he takes the conveyance from the grantor or grantee, will be preferred. S. C. 378 Vide USURY, 2. Notice of sale, vide LOAN-OFFICERS, 2, 3, 4, 5, 6. NUISANCE. 1. A Court of Chancery does not in- terfere to prevent or remove a private nuisance, unless it has been erected to the annoyance of the right of another, long pre viously enjoyed. Van Bergen v. Van Bergen, 232 2. It must be a case of strong and imperious necessity? or the right previously established at law, be- fore the party is entitled to the aid of this Court. ib. 3. Though a person has a right to erect a mill on his own ground, yet he must so exercise that right as not to interfere with the exist- ing rights of others. ib. 4. If A. erect a new mill, in such a place, or so near the mill of B., 517 INDEX. that an artificial dam before erect- ed by B. causes the water to flow back on A.'s mill, and obstruct its movement, it seems that A. has no right to complain of the dam of B. as a nuisance. Van Bergen \. Van Bergen, 282 P. PARTITION. 1 Under the act for the partition of lands, where the proceedings are in this Court, it is not necessary tor the parties to execute mutual releases to each other, according to the partition ; but the final decree of the Court, that such- " partition shall remain firm and effectual forever," &c. is suffi- cient. Young and Wife v. Cooper and others, 295 2 If any doubt arises on a bill for a partition, as to the extent of the undivided rights and interests of the parties, the usual course is to direct a reference to a master to inquire and report on them, as the estate and interest of the parties must be ascertained be- fore a commission is awarded to make partition. Phelps v. Green and others, 302 3. But where the title i& suspicious, or litigated, it must first be estab- lished at law before this Court will interfere. ib. 4. Where the plaintiff's right to one undivided moiety was admitted by all the defendants claiming the other moiety, but they differed among themselves as to their titles and interests, some of the de- fendants claiming the whole moiety in fee, and the others claiming and enjoying separate portions of it, and asserting a freehold estate therein, the Court ordered partition to be made be- 518 tween the plaintiff and all the defendants aggregately ; dividing the premises into two equal moie- ties, so as to give one moiety to the plaintiff in severally, and leaving the other moiety to be divided between the defendants, on a further application to the Court, when their conflicting claims should have been estab- lished at law ; the plaintiff in the mean time to pay his own costs of suit and the expenses of the commission, reserving the question as to the defendants' proportion? of costs, until such further appli- cation, ib. 5. Costs in partition in this Court are charged upon the parties re- spectively, in proportion to the value of their respective rights. S. C. 306 PARTNERSHIP. 1. Where two persons are joint pro- prietors of certain patent rights and privileges, as for navigating vessels by steam, one of them, on the mere ground of such joint in- terest or concern, is not responsi- ble for any special contract or undertaking entered into by the other with any assignee of such right or privilege, not connected with the enjoyment and exercise of their common privilege under the patent. Lawrence and other? v. Dale and others, 23 2. Equity has not an exclusive juris- diction between copartners in matters of account. Duncan v. Lyon, 351 3. An action of account lies at law, by one partner, against his co- partner ; and it seems that there is no good reason why that action is not sometimes resorted to, in- stead of a bill in equity. ib. 4t. An action of covenant at law l '\es by one partner against INDEX 6G3 where the articles contain a cove- nant to account. ib. o. And an assumpsit will also lie, on a promise in writing by one part- ner, to take part of goods bought, in which they were to be equally concerned as to profit and loss. S. C. 362 6. The acts of a majority of the partners of a firm bind the rest. Kirk v. Hodgson and others, 400 *". One joint partner is not entitled, as against the others, to a com- pensation for his greater or more valuable services, in regard to the common concern, unless there be a special agreement to that effect. Bradford v. Kimbcrly and Brace, 431 8 But where the several joint own- ers of a cargo appoint one of the part owners their agent, to re- ceive and sell the cargo, and dis- tribute the proceeds, he is entitled, under such special agency, to a commission or compensation for his services, as a factor or agent, in the same manner as a stranger ; and, as such factor or agent, he may retain the goods or their proceeds as security, not only for his advances, disburse- ments or responsibilities in regard to the particular property, but for the balance of his general account. ib. PATENT. Vide PARTNERSHIP, 1. I. Parties. \. To a bill for foreclosure and sale of mortgaged premises, all encum- brancers, or persons having an interest, existing at the com- mencement of the suit, subse- quent, as well as prior in date tc the plaintiff's mortgage, must be made parties, otherwise they will not be bound by the decree. Haines and others v. Beach ana others, 459 2. Creditors and legatees are excep- tions to the general rule, that all persons interested in the fund must be made parties. Brown v. Rickctts, 553 3. But one creditor, or one legatee, may sue on behalf of himself and the rest, and the others may come in, under the decree. ib. 4. Where there are several legacies given, which are to be increased or diminished, as the estate should increase or diminish, one legatee may file a bill in behalf of himself, and the other legatees who may choose to come in, against the executors, for an ac- count and payment. ib. 5. But where the bill is for the resi- due, all the residuary legatees must be made parties. ib. Plea of other parties, vide post, IV 24, 25. Adding new parties, vide PRACTJCE, I. 1. PETITION. Vide PRACTICE, III. PLEADING. I. Parties. II. Bill III. Answer. IV. Plea. V. Demurrer II. Bill 6. In a bill of discovery for matters material to the defence of the party, in a suit at law against him, the nature of the defence at law must be stated. M'Intyre ana others \. Mancius and Brown, 4.1 7. Where one of several defendants dies, the plaintiff cannot file a 519 664 INDEX. new original bill against the rep- resentatives of the deceased party and the others, but a bill of revi- vor only against such representa- tives. Nicoll and others v. Roose- velt and others, 60 8. Even if he might elect to file a new bill, he cannot do so where an answer has been put in by the party since deceased. ib. 9. A bill of review on matter of fact is not allowed to be filed, unless on oath of the discovery of new matter or evidence, which has come to light since the decree, or at leist since publication, and which could not possibly be had or used at the time publication passed. Livingston v. Hubbs and others, 124 10. Newly-discovered evidence, which goes to impeach the character of witnesses examined in the origi- nal suit, or of cumulative wit- nesses to a litigated fact, is not sufficient. ib. 11. The matter of fact, newly dis- covered, must be relevant, and materially affecting the ground of the decree. ib. 12. A bill of review will not be al- lowed, unless the decree has been performed by the party seeking the review ; but where he is in execution for the non-payment of the money and costs awarded to be paid by him, and which he is unable to pay, it seems that leave to file a bill of review will not be denied, on the mere ground of non-performance of the decree, ib. 13. After publication passed, and cause set down for hearing, the plaintiff will not be allowed to amend his bill, by adding new charges ; but may file a supple- mental bill, on payment of the costs since publication. Shepherd - Merrill, 423 Further as to amendment of bill, vide AMENDMENT, 1, 2. Post, IV. 25. 520 As to bill of discovery, vide DISCOVEEI Bill take yo confesso, vide PRACTICE III. Vide NE EXEAT REPUBLICA, 2. 4. III. Answer. 14. When a defend ant answers that he has not any knowledge or informa- tion of a fact charged in the plain- tiff's bill, he is not bound to de clare his belief one way or the other. Morris and Mowatt v. Parker, 297 15. It is only when he states a fact upon information, or hearsay, that he is required to state his belief or disbelief. ib. 16. When certain documents are set forth, historically, in the stating part of the bill, the defendant must answer to the fact of the ex- istence of such documents, accord- ing to his knowledge, or his in- formation and belief. ib. 17. He is not bound to answer to the facts contained, or stated, in such documents, unless particularly stated, distinct from the docu- ments, if 18. Where the defendant answers, that he is " utterly and entirely ignorant " as to the fact to which he is interrogated, it is sufficient. ib. 19. A purchaser, claiming as bona Jide purchaser, must deny notice, although it be not charged. Den- ning and others v. Smith ana others, 345 Vide post, IV. 22, 23. IV. Plea. 20. To a bill by several tenants in common of an estate in Jamaica, against their co-tenant, for an ac INDEX. 665 count of the profits, Sic., it is not sufficient for the defendant to plead that the title to the estate may be brought in question, and suggesting that he has an exclu- sive title to the whole, and ought not, therefore, to be sued in this Court. The defendant ought to set forth his title affirmatively, that the Court may determine whether the suit ought to be stayed, until the title is established at law. Livingston and others v. Livingston, 51 21 A plea must rest the defence on a single point, creating, of itself, a bar to the suit. Goodrich v. Pen- dleton, 384 22. A plea in bar of the statute of lim- itations is bad, unless accompa- nied by an answer supporting it, by a particular denial of all the facts and circumstances charged in the bill, and which in equity may avoid the statute. ib. 23. As where the bill charged the de- fendant with fraud, and a breach of trust; and he pleaded the stat- ute of limitations in bar; and, for answer in support of it, denied, in general terms, that he received the money mentioned in the bill, as trustee, the plea was held bad, and overruled with costs, and the defendant ordered to answer in six weeks, with liberty to insist in such answer, on the benefit of the statute. ib. 24. A plea in bar naming certain judgment creditors, not parties to the bill, without stating affirma- tively that they ought to be made parties, is good ; but if the plea simply state facts from which it may be inferred that other parties are necessary, without naming them, or averring that they are necessary parties, it is informal and bad. Cook and Kane v. Mancius and Vischer, 427 25. A plea should rest the defence on a single point; but though it VOL. III. 66 should be multifarious, yet if it discloses facts which form a fatal objection to the bill, as the names of necessary parties, it will be suffered to stand, with liberty to the plaintiff to amend his bill, by adding the parties, on payment of the costs of the plea, and sub- sequent proceedings, but not of the useless matter in the plea. ib. V. Demurrer. 2G. Where the widow of a deceased partner filed a bill against the executors of her husband, for a discovery and account of the copartnership estate and effects, and the surviving partner demur- red to that part of the bill which sought a discovery, alleging that it might subject him to penalties under the revenue laws of the United States, but without showing how or for what cause he should incur a penalty by a discovery, the Court overruled the demurrer ; such a general allegation not being sufficient to bar the dis- covery, in the first instance. Sharp v. Sharp, 407 27. Where there is a general demur- rer to the whole bill, filed for dis- covery and relief, and the plain- tiff is entitled to an answer to any part of the bill, the demurrer will be overruled. Kimberty \. Sells and others, 467 TOWER. 1. A feme covert may execute, by will in favor of her husband, a power given to her while sole, over her real estate. Bradish v. Gibbs and others, 53G *2. Where a person takes by the ex- ecution of a power, he takes un- der the instrument containing the power. S. C. 550 3. A husband in regard to a devise to him by his wife, in executiop 521 666 INDEX. of a power, is not a volunteer. S. C. 550 4 A will made in execution of a power contained in an ante-nup- tial contract, still retains all the properties of a will, and is revoca- ble at the pleasure of the wife. S. C. 551 5. Though the will does not refer to the ante-nuptial contract, yet it is a good execution of the power, if it can have no operation without the power. 551 G. The heir at law will be decreed to convey the legal estate to the devisee. ib. Power reserved to a wife in a mar- riage settlement, vide BARON AND FEME, 3, 4, 5, 6. 14, 15, 16, 17, 18. Power in a mortgage, vide BARON AND FEME, 9. MORTGAGE, 11. 14, 15, 16, 17, 18, 19, 20, 21. Vide AUTHORITY. PRACTICE. I. Process and appearance. II. Kill taken pro confesso. III. Petition. IV. Motions and orders. V. Taking testimony, feigned issue, and other intermediate pro- ceedings. VI. H earing and rehearing. VII. Reference to a master report, Exceptions. I. Process and appearance. I. ,Where the bill has been amended, by adding new defendants, the plaintiff may have process of sub- poena, and proceed against them, in the usual course. Beekman and others v. Waters and others- 400 522 II. Dill taken pro confesso. 2. A decree entered by default, "nd enrolled, was set aside, on motion, on payment of costs ; the plaintiff having been previously served with notice of the motion, and copies of the affidavits, on which it was intended to be made. Bccjcman v. Peck, 415 3. A decree taken pro confesso, on a bill for a foreclosure of a mort- gage, after a sale, and a delay of more than six months, will not be set aside, unless under very spe- cial circumstances. Lansing v. M'Pherson and others, 424 Decree by default against infant, vide DECREE, 1, 2. III. Petition. 4. Application under the statute, sess. 24. ch. 30. sect. 7. for infant trustees to convey, &,c., must be by petition, and not on motion ; and the course is, to direct a ref- erence of the petition to the master, to examine, and ascertain the facts, and report the same, with his opinion. Ex parte Quackenboss, 408 5. It seems, that if the trust is not in writing, or the infant has an in- terest, or if it be a doubtful case, the cestuy que trust will be put to his bill. ib. 6. Where a bill is filed by an execu- tor, for a settlement of his ac- counts, and for disclosures, as to distributions, &c., the defendants are not entitled, on petition, to an inspection of the accounts and vouchers of the executor, to en- able them to answer the bill. Denning v. Smith and others, 409 Petition for rehearing, vide post, VI. Vide NE EXEAT REPUBLICA, 2. INDEX. 667 IV. Motions and orders. 7. An application to set aide a de- cree entered by default, need not be by petition, but may be on mo- tion, preceded by service of no- tice, with copies of the affidavits upon which it is founded. Beek- man v. Peck, 415 Rules to produce witnesses and pass publication, vide post, V. 8, 9, 10, 11, 12. 14. Vide NE EXEAT REPUBLICA, 2. V. Taking testimony, feigned issue, and other intermediate proceedings. 8. Publication is passed in a cause, by filing a certificate of the clerk of the entry and expiration of the previous rules, with the register or assistant register, and enter- ing a rule with him to pass publi- cation. Brown v. Ricketts and others, 63 9. Either party, who has examined witnesses, may give rules for pub- lication but the rule for publica- tion can be entered only by the party who has given the previous rules. ib. 10. The defendant cannot pass publi- cation on the plaintiff's rules, nor vice versa. ib. 11. Where the rule to show cause why publication should not pass, has been enlarged by an order for that purpose, at the instance of the defendants, and that order has expired, publication may pass, without entering a further rule with the register, as is the prac- tice, in ordinary cases, on the ex- piration of the rule to show cause. Moody v. Payne, 294 I 2 If, after publication has so passed, the substance of the testimony taken on a material point, upon whicli further testimony is sought, bas been disclosed to the defend- ant, it is too late to move to open ' or enlarge the rule, on affidavit, ib 13. After a cause had been regularly set down for hearing, on the bill and answer, the plaintiff was al- lowed to file a replication, on payment of costs. Smith v. West, 363 14. When, after publication passed, a party files articles, and gives no- tice of the examination of wit- nesses, to impeach the credit of former witnesses, the adverse party may examine witnesses to support the credit of his witnesses who have already deposed, and is entitled to a rule to produce wit- nesses, and pass publication, as in other cases. Troup v. Sherwood and Wood, 558 15. A copy of articles filed with no- tice of the examination to dis- credit witnesses, must be served on the adverse party, within 14 days after obtaining a copy of the depositions. ib. 16. And copies of the interrogatories to be administered to the wit- nesses, must be furnished to the adverse party, six days, at least, before the day assigned for their examination. ib. 17. It seems, that articles to impeach the credit of witnesses after pub- lication passed, may be filed after the cause has been set down for hearing. ib. 18. The rule of evidence as to im- peaching the credit of witnesses who have been examined, should be the same in equity as at law : the inquiry ought to be general, as to the general character of the witness for veracity. ib. 19. But it*seems, that on a special ap- plication to the Court, the inquiry may be allowed to go beyond the general credit, as to particular facts affecting his character, pro- vided those facts are not material to the matter in issue between the parties. it 523 668 INDEX VI. Hearing and rehearing. 20. Where a decretal order of refer- ence to a master to take an ac- count was made in September, 1817, and in January, 1818, the master, after hearing both parties, made his report, and in June fol- lowing the defendant petitioned for a lehearing, on grounds affect- ing the merits of the decretal order, the Court, although the party was not entitled to the re- hearing ns of course on account of the delay in making the appli- cation, granted the petition, on the defendant's paying all the costs of reference under the order, and depositing fifty dollars with the register, towards the expenses of the rehearing, in case the de- cree should not be materially altered. Consequa \. Fanning and otkcrs, 364 21. On a petition for a rehearing, the party applying must deposit fifty dollars with the register, towards the costs of the rehearing, in case the decree should not be materially varied. ib. 22. On a rehearing, the cause is open to the party who petitions for the rehearing, only as to those parts of the decree complained of in the petition ; but as to the other party, the cause is open as to the whole matter. Consequa v. Fan- ning and others, 587 VIT. Reference to a master, report, ex- ceptions. 23. No exception can be taken to a report of a master, unless the ob- jection was made to him previous to his signing his report. Meth- odist Episcopal Church and others v. Jaqucs and others, 78 24 A party, in an account before a master, under the head of general expenses, is not to be allowed any thing without specifying particu- lars, ib. 524 25. Where one party produces a pa per to charge the other the op posite party may use it in his dis charge ; but it does not follow that each part *3 entitled to the same credit. ib. 26. Where the discharges are inaccu- rate in some instances, and are destitute of precision and cer- tainty, as to place and circum- stance, the -vhole may be rejected. ib. 27. Costs on exceptions to a master's report are allowed to each party on the exceptions in which they have each respectively prevailed. ib. 28. The mistake of the master is not like the error of the judge, and is no rule as to costs. ib. 29. An order of reference, for an ac- count before a master, cannot be more extensive than the allega- tions and proofs of the parties. Consequa v. Fanning and others, 587 30. Where the charges in the bill are specific, setting forth the items of the account, with their dates, on an order of reference for an account, the inquiry is not open beyond the special matters charged ; although the bill may contain a general charge at the conclusion, and a prayer for " a full account concerning the prem- ises." ib. 31. Where the plaintiff produces and examines a witness before the master, but neglects to inquire as to a particular item in the account, which the witness alone could ex- plain, he cannot, afterwards, ex- cept to the report of the master as incorrect, in regard to such item. Barrow and others v. Rhinelander, 614 32. Where there were exceptions on both sides, some of which were allowed, and some overruled, and one of the exceptions was modi- fied by the Court, the parties re INDEX. spectively were allowed the costs of the exceptions on wiiich they prevailed, and of those made by the opposite party which were over- ruled ; but costs were granted to neither party on the exception which was modiiied. S. C. 627 33. On a reference to a master, aged witnesses, residing in a distant part of the state, may be examined on interrogatories, before a master in the county where they reside, under the directions of the master before whom the reference is pend- ing ; and examinations so taken may be used on the reference, saving all just exceptions. Mason v. Roosevelt and others, 627 Vide APPEAL, 2. EVIDENCE, II. 12. INFANT, 6. PARTITION, 2. USURY, 3. PRESCRIPTION. Vide NUISANCE. PROCESS. Vide PRACTICE, I. 1. PRO CONFESSO. Vide PRACTICE, II. PUBLICATION. Vide PRACTICE, V. 8, 9, 10, 11, 12. 14. PURCHASER. Vide. AUTHORITY. DISCOVERY, 4. MORTGAGE, I. 8, 9, 10. NOTICE R. RECEIVER. When the bill charges an executor or trustee with abusing his trust, &/c., an injunction will not be awarded in the first instance, but a re- ceiver may be appointed. Boyd and Wickham v. Murray, 48 REDEMPTION, (EQUITY OF.) Vide MORTGAGE. REFERENCE. Vide APPEAL, 1, 2. PRACTICE, VTI REHEARING. Vide PRACTICE, VI. REPLICATION. Vide PRACTICE, V. 13. REPORT. Vide INFANT, 6. RES INTER ALIOS ACT A. Vide EVIDENCE, I. 1. REVIEW. Bill Of, mWcPLEADING.il. 9, 10, 11, 12 REVIVOR. Bill of, vide PLEADING, II. 7, 8 REVOCATION. Of will, vide WILL S. SALE. Of mortgaged premises, vide INFANT, 4, 5, 6. SECURITY. To perform decree, vide APPEAL, I 2, 3. NE EXEAT REPUKI.ICA, 3. For costs, vide COSTS, II. 625 070 INDEX. SEPARATION. Of husband and wife, vide BARON AND FEME, 11, 12, 13. SET-OFF. . A set-off is not allowed where the demand is for uncertain damages arising from a breach of covenant. Duncan v. Lyon, 351 2. A Court of equity follows the same general rules as a Court of law, as to set-off. ib. 3. There must be mutual debts, to authorize a set-off. ih. 4. Mutual debts are such as are due to and from the same persons, in the same capacity. Murray and Murray v. Toland and Mead?, 573 5. Matters of tort, sounding in un- liquidated damages, cannot be set off. S. C. 575 Vide JURISDICTION, 5. SETTLEMENT. Vide BARON AND FEME. FRAUDS, (STATUTE OF.) STATUTES CONSTRUED, EX- PLAINED, OR CITED. 1786, April 4. Sess. 9. c. 27. (Ex- ecutors and Administrators,) 15G 1787, Feb. 26. Sess. 10. c. 44. (Fraudulent Conveyances,) 488. 502 1801, March 20. Sess. 24. c. 30. (Idiots and Lunatics. Infant Trustees,) 147. 408 Sess. 24. c. 25. (Writs of Error,) 68 -, April 7. Sess. 24. c. 74. (Ex- ecutors and Administrators, Dis- tributions,) 222 1 April 8. Sess. 24. c. 183 (Limitation of Actions,) 135. 190 526 1808, April 11. Sess. 31. c. 216 (Loans and Loan-Officers,) 33'J 1813, March 19. Sess. 36. c. 32. (Mortgages,) 74 129 , April 6. Sess. 36. c. 75. (Ex- ecutors and Administrators, Dis- tributions,) -, April 10. Sess. 36. c. (Court of Chancery,) -, April 12. Sess. 36. c. (Costs,) Sess. 36. c. 22 J 95. 61 96. 117 100. (Partition,) 295. 306 1817, April 15. Sess. 40. c. 251. (Compensation to Executors, &c.) STAY OF PROCEEDINGS. Effect of an appeal, as a stay of pro- ceedings, vide APPEAL. STREAM OF WATER. Vide NUISANCE, 3, 4. SUBPOENA. Vide PRACTICE, I. 1 SUPERCARGO. Vide COMMISSIONS, 3. SUPPLEMENTAL BILL. Vide PLEADING, II. 13 T. TRUST AND TRUSTEE. I. How trusts are created* and their incidents. Cestuy que trust, ana trust estate. II. Trustee's accounts. Allowances to, and charges against trustee. INDEX (HI I. How trusts are created, and their incidents. Cestuy que trust and trust estate. 1. No lapse of time is a bar to a di- rect trust, as between the trustee and ccstuy que trust. Decouche and others v. Savetier and others, 216 2. But where a person takes pos- session of property in his own right, and is afterwards, by mat- ter of evidence or construction, changed into a trustee, lapse of time may be pleaded in bar. ib. 3. Where a trust is created for the benefit of a third person, though without his knowledge, he may afterwards affirm it, and enforce the execution of it. Duke of Cumberland and others v. Cod- rington and others, 261 4. Application under the statute, sess. 24. c. 30. sect. 7., for infant trustees to convey, &-c., must be by petition, and not on motion; and the course is to direct a ref- erence of the petition to the master to examine, and ascertain the facts, and report the same with his opinion. Ex parte Quackenboss, 408 5. It seems, that if the trust is not in writing, or the infant has an in- terest, or if it be a doubtful case, the ccstuy que trust will be put to his bill. ib. Misconduct of trustee, and abuse of trust, vide INJUNCTION, III. 3. 4. [I. Trustee's accounts. Allowances to, and charges against trustee. G. Where R., while a confidential clerk of P., took bonds am- notes belonging to P., witho vt his knowledge or permission, which he refused to return or g ve an account ot, he was held aii swera- bUf for the whole of the pj ncipal and interest due on the securi- ties, without any regard to his dili- gence in obtaining payment, or the subsequent solvency of the makers ; it appearing that the, bonds and notes were good about the time that they were so taken by R. Barrow and others v. Rhinelander, Gil 7. A person who receives bonds and notes as a collateral security for a debt, is bound to use due dili- gence, and if they are afterwards lost through his negligence, by the insolvency of the makers, he is chargeable with the amount. ib. 8. Where R. received a bond from P. as collateral security fn- a debt, and the obligor offered to pay him the amount of the bond in land, at a certain price, as the only means of payment in his pow- er, which R. refused to accept, although requested to do so by P., and the obligor afterwards became insolvent, whereby the bond wa.s wholly lost, R. was held chargea ble with the amount of the value of the land so offered him in pay- ment, and which he unreasonably refused to accept. ib. Vide LOAN-OFFICERS, 1. 7. u. USURY. 1. Where the plaintiff was sued at law, on notes alleged by him to be usurious, and he suffered a verdict and judgment to be taken against him, without making a defence, or applying to this Court, on a bill of discovery, in due se;i- on, he was held concluded, and not entitled to relief. Thompson v. Berry and Van Burcn, 393 2. An assignment of a debt, usuri- 527 672 INDEX. ous in its creation, to a third per- son, who has knowledge of the original transactions, will not cover 't from the scrutiny of the Court. Thompson v. Berry and Van Bur en, 395 3. And where sufficient ground ap- peared to support the charge of usury, a reference was ordered to a master to take an account, &,c. ib. 4. Utility and policy of usury. S. C. 399 V. VENDOR AND PURCHASER. Vide. NOTICE. FRAUDULENT CONVEY- ANCE. PURCHASER. VOLUNTARY CONVEYANCE. Vide FRAUDULENT CONVEYANCE, I. 10, 11, 12, 13, 14, 15, 16, 17. w. WARD. WILL 1. After making his will, the testa- tor conveyed his share of the real estate under the will of his do- ceased father, and which made part of the testator's real estate devised to his children, to trus- tees, to pay the debts of his father, and then in trust for the devisees of his father, and their representatives : HM, that this subsequent conveyance, being for the mere purpose of paying debts, was not a revocation of the will beyond that particular purpose, but the trust, as to the residue, was for the devisees, and not for the heirs of the testator. Living- ston v. Livingston and others, 148 2. A subsequent conveyance by the testator, in trust for the payment of debts, and the residue for the testator, and such persons as would have held the same before the conveyance, is not a revoca- tion of his will, beyond such spe- cial purpose. S. C. 155 Will of feme covert, under a marriage settlement, vide BARON AND FEME, 4, 5. 7. 14, 15, 16, 17, 18 3f the Court of Chancery, vide IN- Vide DEVISE. MORTGAGE, I. 10. FANT, 2. WASTE. / J tefe INJUNCTION, I. 1. WITNESS. Vide EVIDENCE, II. PRACTICE, V 14, 15, 16, H, 18, 19. END OF THE THIRD VOLUME. 528 University of California SOUTHERN REGIONAL LIBRARY FACILITY 405 Hilgard Avenue, Los Angeles, CA 90024-1388 Return this material to the library from which it was borrowed. 1 5 zooa LAW LIBRARY OF CALIFORNIA A 001166483 6