NEW JERSEY EQUITY REPORTS, VOLUME X. STOCKTON, II, REPORTS OF CASES ARGUED AND DETERMINED IN THE COURT OF CHANCERY, AND, ON APPEAL, IN THE COURT OF ERRORS AND APPEALS OF THE STATE OF NEW JERSEY. JOHIST P>. STOCKTON", Reporter. VOLUME II. SECOND EDITION WITH REFERENCES SHOWING WHERE THE CASES HAVE BEEN CITED, FIRMED, OVERRULED, QUESTIONED, LIMITED, ETC., DOWN TO VOL. XXX IX, N. J. LAW REPORTS (x VROOM), AND VOL. XXV111, K. J. EQUITY REPORTS (l STEW.), INCLUSIVE. By John Linn, Esq., of the Hudson Co. Bar. JERSEY CITY: FREDERICK I). LINN & CO. i8S6. J CHANCELLOR DURING THE PERIOD OF THESE REPOKTS, HON. BENJAMIN WILLIAMSON. JUDGES OP THE COURT OF ERRORS AND APPEALS. EX OKFICIO JUDGES. HON. BENJAMIN WILLIAMSON, CHANCELLOR. " HENRY W. GREEN, On. JUST. SUP. COURT. ELIAS B. D. OGDEN, " LUCIUS Q. C. ELMER. " STACY G. POTTS, DANIEL HAINES, MARTIN RYERSON, PETER VREDENBURGH, ASSOCIATE JUSTICES OF SUP. COURT. JUDGES SPECIALLY APPOINTED. HON. THOMAS ARROWSMITH, JOHN M. CORNELISON, " JOHN HUYLER, JOSEPH L. RISLEY, CALEli II. VALENTINE, " MOSES WILLS. 778386 A TABLE OF CASES EEPORTED IN THIS VOLUME. A. Ackerraan ads. Uogencamp 2C7 Adams v. Hudson County Bank 535 Andrews v. Farnham and Smith 91 Andrews ads. Kearney 70 Armour v. McKelway . .ll." Armstrong ads. Warbass 203 13. Baldwin v. Van Vorst 577 Birdsall v. Colie 03 Blair v. Ward [19 Brakely v. Sharp 206 Brown ads. Wallace .808 Bryan ads. Cornish 140 c. Cam man ads. Hartwell 1 28 Cargill ads. Lee 331 Carle ads. Williams 5-fci Chamberlain ads. Williamson 37!) Clapp ads. Ely 178 Clark ads. Xorris 51 Clark v. Johnson 287 Cole, T. Totts 67 Colie ads. Birdsall 6! Colton ads. Terhnne 21 Cooper ads. Little.. 27H Cornish T. Bryan 140 Coryell ads. Holcombe 393 Cox ads. Dunham . . . .437 TABLE OF CASES. D. Davison ads. Halsted 290 Doughten v. Gray 323 Doughty ads. Doughty 347 Doughty v. Doughty ib Doughty v. King 396 Dunham v. Cox. . . 437 E. Ehlers ads. Heyde 283 Ely ads. Clapp 178 F. Farley v. Woodburn 96 Farnham and Smith ads. Andrews 91 Fisler v. Porch 243 Flagg v. Vandoren and Bonnell 82 G. Garret v. Stilwell 313 Gibbons ads. Whitehead 230 Gifford v. New Jersey Railroad and Transportation Company 172 Gilbert ads. Lathrop 344 Glover v. Powell 211 Grandin v. Reading 370 Gray ads. Doughten 323 II. Halsted v. Davison 290 Harker v. Irick 269 llartwell v. Camman 128 Henderson ads. Miller 320 Heyde ads. Ehlers 283 Hildreth v. Schillinger 196 Hoagland ads. Veghte 45 Hogencamp ads. Ackerman 267 Holcombe v. Coryell .392 Holcombe v. Holcombe's executors 284 Holcombe ads. Holcombe's executors ib Holmes v. Stout 419 Hornor v. Leeds 86 Uubbell ads. Johnson.. ..332 TABLE OF CASES. K Hudson County Bank ads. Adams 535 Hunt v. Hunt et al 315 Hunt et al. ads. Hunt ib I. In the matter of Daniel Vanauken 18G Jrick ads. Barker 269 J. Johnson ads. Clarke 287 Johnson v. Hubbell 332 Jones ads. Naughright 298 K Kearney v. Andrews 70 King ads. Lucas 277 L. Lathrop v. Gilbert , 344 Lee v. Cargill 331 Leeds ads. Horner 68 Lippincott v. Ridgway 164 Little v. Cooper 273 Lucas v. King 277 Lutheran Church v. Maschop 57 M. Martin v. Righter 510 Maschop ads. Lutheran Church 57 McKelway ads. Armour 115 Medara ads. Sheridan 469 Miller v. Henderson 320 Morris Canal ads. Plum 256 Morris and Essex Railroad Company v. Newark 352 K Naughright ads. Jones 298 New Jersey Railroad Company ads. Gifford 172 Newark ads. Morris and Essex Railroad Company 352 Nicholls v. O'Neill y$ Norris v. Clarke ...51 TABLE OF CASES. o. Obert ads. Obert - :~::;~. .90 Obert v. Obert ib O'Neill and wife ads. Nicholls 88 P. Pacific Mutual Insurance Company ads. Yard 480 Paterson Savings Bank ads. Peoples Bank 13 Paul ads. Young 401 Peloubet ads. Ward 304 Peoples Bank v. Paterson Savings Bank.. 13 Plum ads. Morris Canal 256 Porch ads. Fisler 243 Potts ads. Cole 67 Powell ads. Glover 211 E. Reading ads. Orandin 370 Receivers of Peoples Bank v. Paterson Savings Bank.. 13 Ridgway ads. Lippincott 164 Righter ads. Martin 510 s. Schillinger ads. Hildreth 196 Scudder v. Stout : 377 Sharp ads. Brakely 206 Sheridan v. Medara 469 Shreve v. Shreve 385 Shreve ads. Shreve ib Sims v. Sims 158 Sims ads. Sims ib Snover v. Snover 261 Snover ads. Snover ib Speer v. Whitfield and Jeroloman 107 Stilwcll's executors ads. Garret 313 Stout ads. Holmes 419 Stout ads. Scudder 377 Stout v. Vankirk and Cruser 78 T. Terhune ads. Colton 21 Trenton Water Power Company ads. Woodruff 489 TABLE OF CASES. V. Vanauken, Daniel, in the matter of... 183 Vandoren and Bonnel ads. Flagg. 82 Vankirk and Cruser ads. Stout 78 Van Vorst ads. Baldwin .77 w. Wallace v. Brown 308 Warbass v. Armstrong. 263 Ward and Cook ads. Blair 119 Ward v. Peloubet. 304 Whitehead, executor, v. Gibbons 230 Whitfield and Jeroloman ads. Spear 107 Williams v. Carle 543 Williamson v. Chamberlain 373 Woodburn ads. Farley 96 Woodruff v. Trenton Water Power Company 489 Y, Yard v. The Pacific Mutual Insurance Company 480 Young v. Paul 401 Yule v. Yule 133 Yule ads. Yule... ...ib CASES CITED. A Admrs. of Schenck v. Outtrell, 1 Gr. C. 301 48 Agar v. Fairfax, 17 Ves. 533 99 Alderson's Assignees v. Temple, 4 Burr, 2240 19 Amler v, Araler, 3 Ves. 583 382 Atkinson v. Leonard, 3 Bro. 0. 318 140 Aylett v. Ashton, 1 Mylne & C. 105 , ,. .,, 416 B. Balanno v. Lunley, 1 Ves. & Beam, 224 415 Ball T. Montgomery, 2 Ves. Jun. 195 145 Barnes v. Mawson, 1 Maul. & S. 77 136 Benedict T. Lynch, 1 J. C. 376 583 Birmingham v. Kirwan, 2 Scho. & Lefr. 452 54 Blaines Lessee v. Chambers, 1 Serg. & R. 169 209 Blinaan v. Brown, 2 Vern. 232 100 280 Bloxom v. Peel, 2 W. Blac. 999 478 Boehm v. Wood, Sur. & Russ. 344 140 Bogardus v. Trinity Church, 4 Paige, 178 85 Boggs v. Varner, 6 Watts. & S. 469 434 Bolles v. Wade, 3 Gr. 458 81 Bond v. Hopkins, 1 Sch. & Lef. 413 349 Boyle v. Adams, 6 Ves. Jun. 594 85 Bracebridge v. Buckley, 2 Priors Ex. R. 216 285 Brandlyn v. Ord, 1 Atk. 571 429 Brakely v. Sharp, 1 Stock. 10 209 Brown v. Edsall, 1 Stock. 256 275 Broome v. Monk, 10 Ves. 605 390 Brownsword v. Edwards, 6 Ves. Rep. 247 86 Bumpeer v. Platurn, 1 Johns. Ch. 219 429 CASES CITED. XIH Burton v. Slattery, 3 B. C. P. 63 585 Bush v. Golden, 17 Conn. 594 436 Butler v. Stevens, 26 Maine 484 436 C. Chambers' Exrs. v. Tulane. 1 Stock. 146 236 Chapman v. Albany & S. R. R. Co., 10 Barb. 369 359 Cheeseborough v. Millard, 1 J. C. 414 127 Christie's Case, 5 Paige 242 195 Cockson v. Cook, Cro. Jac. 125 506 Cogler v. Cogler, 1 Ves. Jun. 94 140 Colby v. Kinniston, 4 New Hamp. 262 427 Colluison v. Colluison, 18 Ves. 352 141 Commonwealth v. Breed, 4 Pick. 460 225 Compton v. Richards, 1 Price 27 209 Cose v. Smith, 4 J. C. 271 102 D. Daniels v. Davison, 16 Vesey 249, 17, ib. 433 4$t' Dartmouth College v. Woodward, 4 Wheat. 518 229 Davis v. Blunt, 6 Mass. 487 427 Dawson v. Dawson, 7 Ves. 173 140 Den v. Baldwin, 1 Zab. 43 526 Denton v. Denton. 1 J. C. 36t 140 Dey v. Dunham, 2 Johns. C. 1^2 438 Doe Ex. Dem. Wells v. Scott, 3 Maule & Sel. 300. 389 Dows v. McMichael, 6 Paige 144 8J Duker. Page, 2 G. C. 154 426 E. Edgerton v. Peckham, 1 1 Paige 352 583 Etches v. Lance, 7 Ves. Jun. 417 II J Byrev. Diiepain, 2 Ball & B. 290 426 F. Fletcher v. Peck, 6 Cranch. 87. 2C9 Fortesque v. Hannah, 19 Ves. 71 336 Franklin v. Frith, 3 Bro. C. C. 433 % G. Gelston & Schenck v. IToyt, 1 J. C. 543 276 Gestv.Flock, 1 G. C. 115 382 CASES CITED. Gfibson v. Gibson, 17 E. L. & E. R. 352 56 CKiion v. Knapp, 6 Paige 43 126 Graham v.. Birkenhead Co., 2 Mac. & Gor. 146. 176 Grant v. Chase, 17 Mass. 443 210 H. Halifaxv. niggins. 2 Ves. 134 586 Hall v. Smith. 14 Vesey 426 426 Hamilton v. Camtmngs, 1 J. C. 517 151 Hamilton v. Elliott, 5 Serg. & R, 375 508 Harding v. Glover, 18 Ves. 281 66 Harman v. Fisher, Cowp. 124 19 Harrison v. Sterry, 5 Cranch. 301 18 Hart v. Ten Eyck, 2 J. C. 62 249 Hartwpll v. Camman, Cro. Jac. 150 131 Hazard v. Robinson. 5 Mason's Rep. 272. . , 208 Hazard v. Robeson, 3 Mason's Rep. 48 209 JIrricl: v. Powell, 9 Ala. 409 .430 Herbert v. Wren, 7 Cranch. 379 50 Hewlins v. Shippam, 5 Barn. & Cres. 210 210 Hill v. Cook, 1 Ves. & Beam 175 390 Howe v. Earl of Dartmouth, 7 Ves. 147 390 Hutchinson v. Tindall, 2 Green's C. 357 . .249 I. Inhabitants of Springfield v. Conn. River R. R., 4 Cush. 63 361 Irvin v. Ironmonger, 2 Rus. & M. 591 391 Izard v. Ex. of Izard, 1 Dessau 116 . .336 J. Jackson v. Burgot, 10 Johns. 462 434 Jackson v. Jackson's Ex., 2 G. C. 113 264 Johnson v. Jordan, 2 Mete. 234 209 Jolland v. Sfainbridge, 3 Ves. 478 433 Jones v. Smith, 1 Hare 65 434 Jones v. Martin, 3 Anst. 882 . .336 K King v. Montague, 4 B. & C. 596 224 L. Law v. Ford, 2 Paige 310 64 CASES CITED. XV LeNeve v. LeNeve. 1 Ves. Sen. 64 438 Leonard v. White, 7 Mass. 8 209 Lewis v. Maddocks, 6 Ve. Jr. 160 336 Linton, Assignee, v. Bartlet, 3 Wil. 47. 19 Logan v. Wienholt, 7 Blighs 53 337 Lord Inchiquin v. French Ambl. Kept. 33 237 Lord Walpole v. Lord Oxford, 3 Ves. 402 336 Liibier v. Genow, 2Ves. 579 285 Lupton v. Lupton, 2 J. C. 625 162 M. Martin v. Van Schaic, 4 Paige 479 64 Mayor of Lynn v. Turner, Cowp. 86 224 McMeehan v. Griffing, 3 Pick. 149 428 48. Paterson Savings Bank. to the conclusion that it is incumbent upon them at once to close the doors of the bank, and abandon the objects for which the institution was incorpo- rated, the cashier may lawfully meet all demands made upon it, up to the moment the bank suspends payment, and all such payments are valid. But he cannot, while he is dealing out to importunate creditors their legal de- mands with one hand, with the other, place the assets of the bank in his pocket for absent friends and favorites. The diligent creditor may acquire rights which the law will not disturb, but there is a distinction between a Voluntary preference of a creditor by the debtor, and a payment forced from him by an importunate creditor. (So where one of the directors of the bank puts a note in his pocket to deliver to a creditor, for the purpose of giving him a preference, to which he was not entitled by any diligence of his own, it was held not to be a payment in the usual course Of dealing. The assignment and transfer of promissory notes, in contemplation of the in- solvency of an incorporated company, is declared by the act to be utterly null and void as aon a farm, which the testator devised to his son. who was the executor; and the will directed the legacy to be paid in tbree ainiril instalments without interest, and directed tin- executor to invest the same, and apply the interest to the support and education of the legatee, until she should arrive at the age of twenty-one years, at which period the principal was to to paid; and Hubsequently the executor mort- gaged the farm, it was held thai the legacy was a subsisting lien on the pre- mise*, notwithstanding a final settlement of the executor in the Orphan* Court, in which he had prayed allowance for the legacy ; the executor could not release the land by simply charging the legacy to himself. The nill made the legacy a hen upon the land until it WHS actually paid. Nor was the land released by a marriage settlement, in which the executor was made 22 CASES IX CHANCERY. Receivers of Peoples Bank t>. Paterson Savings Bank. a trustee to secure to the legatee her separate estate free from the control and liability of her intended husband, when there was nothing in the settlement to show that it was the intention of the parties, by that deed, to release the land, and to take the personal security of the executor for the legacy, and the legal con- struction of the deed did not necessarily produce that effect. It was apparent that the money had never been received to pay the legacy, that it existed in no other way than as* a debt due to the legatee, secured upon the lands of the executor, and while that debt and security bed been assigned to the trustee with power to change the security, it never was in fact changed. The executor and trustee, in such a c ise cannot interpose that trust deed as a defence against a claim of the legicy as a lien upon the land. An attorney has no right to give up the security of his clients, unless he receives actual payment, or is specially authorized to do so; but where there is evidence enough of the acquiescence of the client in the agreement, it maybe inferred that a solicitor had special authority. A debt of reeorl cannot be released by parol. How far a declaration that a decree was satisfied, would bind a party against one who upon the faith of it has advanced money, is another question. The assignee of the executor made an arrangement to sell the farm, that money enough should be raised to discharge the decree, so that a clear title iright be given te the man who should loan the money. Bat the understanding hnd not been carried out, nor the decree discharged, although the parties sup- posed it was. The lien in such case cannot be postponed to a subsequent encumbrancer, unless it can be shown that, by some act of those claiming under the execution, he has been induced to loan his money upon a false security. Honest efforts on the part of those having claims umier a decree to secure their deb:, consistent with the fact, that the debt was acknowledged due, and was secured by the decree, do not prove that they released their security or abandoned their rights under the decree. The bill charges that J. C. Schenck, deceased, being indebted to James Bishop in the sum of $6000 for money lent, executed to J. B. a bond and mortgage, to secure the same, on a tract containing 157 acres of land in the township of West Windsor, in the county of Middle- sex ; that J. B. assigned the said bond and mortgage to the complainant ; that complainant filed his bill in this court on the said mortgage, and on the 15th of December, 1846, obtained a decree. to sell the mortgaged premises, issued an execution thereon, and caused the same to be sold, and, on the 10th day of May, 1847, himself became the purchaser, at the sheriff's sale, for the sum of $8000, and received a deed from the sheriff ; that under the deed Terhune v. Col ton. he went into the possession, and still possesses the same ; that at the time he purchased, he had not the slightest intimation of any prior lien or encumbrance, and supposed there was none, until he was surprised to find the pro- perty advertised for sale under an execution out of this court, issued on the 21st of February 1837, in a cause in which Caleb Johnson and Enoch Johnson were complain- ants, and John C. Schenck, Asa S. Colton and Margaret his wife, William Schenck and Isaac Story, executors of James Stoddard, deceased, were defendants, directed to the. sheriff of Middlesex, commanding him to make sale of the same tract of 157 acres, and out of the proceeds of sale to pay first, to Asa S. Colton and wife $1724.38, to William Schenck the like sum, being the amount due on their legacies secured on the said premises ; second, to pay complainant Caleb Johnson $4904, and to the com- plainant Enoch Johnson $2697.20, being the sums secured by their mortgages ; third, to pay unto Caleb Johnson $2441, due on his mortgage ; fourth, to James Story, ex- ecutor, $2642.06 on his mortgage. That the said sale was advertised by A. W. Brown, late sheriff of the county of Middlesex, under the direction of Asa S. Colton and William Schenck, two of the de- fendants in the suit mentioned. That the legacies referred to were legacies bequeathed to the said Margaret and William by the will of their grandfather, Joseph Schenck, bearing date 19th of Feb- ruary, 1822. Joseph Schenck devised to his son, the said John S., his homestead place, containing about 256 acres, including the premises in question, and several lots of land. lie also made some bequests of personal property, and in consideration of the said devises and bequests, he directed him to pay to Margaret and William the sum of $1953 equally between them, in three equal annual payments. Other legacies were given to William and Margaret, and the executors were directed to place out at interest the amount of all the legacies given them, and apply the interest to 24 CASES IN CHANCEKY. Ter'uune v. Colton. their support and education,, until they arrived at the age of twenty-one years, when the principal was to be paid them. John C. Schenck and his brother, E. C. S., were appointed executors, but J. C. S. alone acted. Jos. S., testator, died 9th November, 1822. The bill further charges that the complainant does not know what payments on account of said legacies of $1953 were made between the tune when the same became payable and the year 1833, but that the interest was ap- plied as directed. That in 1833, a marriage took place between the said Margaret and the said Asa S. Colton, and before it was solemnized, a marriage settlement was entered into be- tween the said A. S. C. and M. S. and J. C. S., bearing date on the 18th day of February, 1833 ; that the com- plainant has no copy of the instrument, but believes that by the said deed of trust, the whole amount of principal and interest due at that time to the said Margaret on ac- count of said legacy was, by her, with the consent of her intended husband, transferred to the said J. C. S., as her trustee, and to be held by him for her sole and separate use. At this time the said trustee was a man of large O property and undoubted credit. The bill insists, that ad- mitting the legacy to Margaret to have been originally a lien on the premises in question, yet that it ceased to be so from the time of the execution of the said deed oi trust ; that the whole of said legacy was in fact paid by J. C. S. to the said Margaret, and received by him as trustee and from thenceforth was no longer a lien ; that the, money was borrowed of Caleb and Enoch Johnson aftei this, and ^the mortgage executed to them on the land as free from encumbrance; that the said C. J. and E. J., relying upon the assurances of the said J. C. Schenck, that it was so free, loaned him the sum of $6200, of which C. J. furnished $4000 and E. J. $2200, and took said mortgage to secure the payment upon the said 157 acres of land, being the same property now advertised for sale FEBRUARY TEEM, 1854. 25 Terhune v. Colton. by sheriff Brown. And on the 4th day of June, 1833, the said J. C. Schenck made another mortgage to the said Caleb Johnson to secure $2000 on the same land. That a bill was filed on the 7th day of March, 1836, by the Johnsons on their mortgages ; that A. S. Colton and wife and William Schenck were made parties defendants, but entering no appearance or filing no answer, a decree pro confesso was taken against them ; that an answer was put in by the said J. C. Schenck, insisting that the said legacy of $1950 was a charge upon the said mortgaged premises, and entitled to priority of payment over the mortgages of Caleb and Enoch Johnson. The answer was filed October 14th, 1836. On the 19th March pre- ceding the said J. C. S. made an assignment for the benefit of his creditors; that before any evidence was taken in the cause, and while the said C. J. and -E. J. were preparing to resist the claim of the said legacies, an agreement was entered into between the said C. J. and E. J., on the one hand, and the said J. C. Schenck, A. S. C. and wife, and W. Schenck, on the other, by which it was agreed that a decree should be made in the said cause de- claring the said legacy to be a lien upon the said mort- gaged premises, and entitled to be first paid out of the same, and that an execution should issue in conformity with the said decree, but that the moneys arising from the sale of the said mortgaged premises should be applied, in the first place, to the payment of the several mortgages of the said C. and E. J. and the costs of the said suit, and the residue to the payment of the said legacy : said agreement was .in writing, and bears date the 6th of Fe- bruary, 1837, and was signed by R. S. Field, solicitor of the complainants, Samuel R. Hamilton, solicitor of J. C. Schenck, and James S. Green, solicitor of the said A. S. Colton and wife and William Schenck. That on the 7th February, 1837, in pursuance of fiaid agreement, a decree was made and an execution issued to the sheriff of the county of Middlesex, being the same VOL. n. c 26 CASES IN CHAKCERY. Terhune u. Colton. execution under which the premises in question are now advertised for sale. Upon receiving said execution, the sheriff advertised the premises for sale on the 12th of May, 1837 ; and the bill charges that on the 30th day of March, 1837, the said execution was settled by the parties, and a new arrangement made between them ; that, in the mean- time, Isaac Story, the assignee of J. C. S., had advertised for sale the homestead farm of the said J. C. S., contain- ing 256 acres, and including the premises in question ; and, on the said 30th of March, the same was purchased by John Gulick for the sum of $67, subject to encum- brances ; that this purchase was made by John Gulick for the benefit of J. C. S., and with the intention of subse- quently conveying the property to him ; that, on the same day, a mortgage was executed by the said Gulick to James Bishop on 157 acres of land, being part of the said home- stead farm, to secure the payment of $5969.46 ; that the said mortgage was made cotemporaneously with the set- tlement of the said execution ; that the arrangement was this : the said Bishop was willing to take a mortgage on the said 157 acres, provided it could be cleared of all ex- isting encumbrances, which could only be effected by a satisfaction of the execution issued out of Chancery afore- said ; that with the money advanced by Bishop, together with other moneys raised by the said John Gulick, the whole .amount due the Johnsons and their costs were paid, and the sheriff 's execution fees. The bill further states that in what way the legacy due Margaret and William was satisfied and arranged, the complainant, at this distance of time, and in consequence of the death of J. C. S., has not been able to ascertain ; that in reference to the said "William Schenck, the com- plainant believes that the amount due him w r as secured by certain bonds and mortgages executed to him by the said J. C. S., which were afterwards paid up, with the ex- ception of a small balance of 96.24, for which he received in payment a note of the said J. C. S.; that prior to the FEBKUAEY TEEM, 1854. 27 Terhune v. Colton. settlement, the said W. S. had presented to the assignee his claim ; that exceptions were filed in the Court of Com- mon Pleas, upon the ground that it had already been paid, and the exceptions were sustained, and the claim disal- lowed. The bill charges, that, in 1839, the said John Gulick conveyed to the said J. C. S. the said farm of 256 acres, including the premises in question, and that thereupon the said James Bishop agreed that the bond and mortgage of the said J. C. S. should be substituted in place of the bond and mortgage previously executed to him by the eaid John Gulick, as aforesaid ; and accordingly, on the 28th of June 1839, the said John C. Schenck executed to the said James Bishop his bond and mortgage for $6000, which was afterwards assigned to the complainant, the said J. C.- S. assuring the said James Bishop that there was no incumbrance whatever upon the said premises prior to the said mortgage ; that the execution out of Chancery had been settled, and that the said legacy was no longer a lien upon the said property. The prayer of the bill is, that this court, by its or- der and decree, may perpetually restrain the said Asa S. Colton and Margaret his wife and William Schenck from proceeding to enforce the said execution by a sale, &c. ; that they may be decreed to have no right or interest in the said premises by virtue of the said decree and execu- tion, and that the sheriff may be restrained from selling ; and that the complainant may have such other and further relief in the premises as the nature of the case may re- quire, &c. The bill was answered by Asa S. Colton and wife and William Schenck. They deny that there was any arrange- ment made, with their consent, as to settling the decree or execution, and aver, that if any such settlement was made, it was without their knowledge or consent. They declare that the whole amount is due them on the decree. They deny the authority of their solicitor to make for 28 CASES IN CHANCEBY. Terhune t>. Colton. them the agreement alleged to have been made respecting the entry of the decree. H. S. Field and W. L. Dayton, for complainant. C. Parker and A. 0. Zdbriskie, for defendants. THE CHAHCELLOB. I do not see anything in this case to justify me in going behind the decree of this court of the 7th of February, 1837. No one can question it, except a party to that decree, or some one whose rights are im- paired by it. If its object was to defeat creditors who then had existing claims, or to protect the property of the mortgagor from future creditors, such creditors would be at liberty to impeach it. The complainant does not claim under any party to the decree. His lien upon the mort- gaged premises was acquired subsequent to it. He does not impeach it for fraud mistake or accident ; on the contrary, the bill admits that the decree was entered in good faith between the parties. Nor is there anything connected with the suit, or the manner in which the de- cree was entered, or in the claims upon which it was founded, to justify the court in refusing to protect and enforce the rights of the respective parties under the de- cree. The rights of the complainants under it are not controverted ; but it is the claim of Asa S. Colton and his wife, and of William Schenck, that is questioned. But as this a case of great interest and importance to the complainant, and as he must be an innocent suf- ferer and remediless, if he cannot obtain relief in this suit, it may afford him some satisfaction to know that the court has not neglected to give due consideration to every feature of the case, presented by his counsel with an abil- ity which, in a doubtful case, would have commanded success. What then was the claim, upon which that part of the decree in favor of the Coltons and of William Schenck FEBRUARY TERM, 1854. 29 Terhune v. Colton. was founded ? Joseph Sclienck, the grandfather of Mar- garet Colton and William Schenck, bequeathed to them, by his will, two legacies, one of $3547, and another of $1953. The testator made this last legacy a lien upon his homestead farm which he had devised to his son John C. Schenck. The will directed the legacy to be paid in three annual instalments without interest, and his executors, John C. Schenck and Elias T. Schenck, to invest the same, and apply the interest to the support and education of the legatees until they should respectively arrive at the age of twenty-one years, at which periods their respective proportion of the principal was to be paid them. John C. Schenck mortgaged one hundred and fifty-three acres of the homestead farm (the whole farm embracing two hundred and fifty-three acres) to Caleb and Enoch John- son, for about $8200. The Johnsons filed their bill to foreclose their mortgages, and made the Coltons and Wil- liam Schenck parties defendants in the suit, alleging that they claimed some lien by virtue of the legacy of $1953 under the will of their grandfather. John C. Schenck, only, answered the bill, and he set up the legacy as a subsist- ing lien, alleging that no part of it had been paid. The complainants filed a replication. The parties then, by their respective solicitors, entered into the agreement in writing, and in conformity to this agreement the decree was made. It is now said that the legacy was not, at that time, a lien on the mortgaged premises, and that not decree should have been entered for it. That this legacy had not at that time been actually paid is beyond dis- pute. How, then, had the land been released from the en- cumbrance ? First ; it is said that the settlement of John C. Schenck, as executor, in the Orphans Court, operated to release the land. In the final settlement of his accounts, John C. Schenck prayed allowance for this legacy, and it was charged to him as executor; it is insisted, that by this settlement, the land was released. In the account, 30 CASES IN CHANCEKY. Terhune v. Colton. which I have before me, this legacy is not allowed. If there is an exhibit showing this allowance, it has escaped me. But admitting that such settlement was made, how does it operate to release the land from this legacy ? The will directed that the legacy should be invested, and the interest appropriated for the benefit of the legatees ; and it secured the payment of the legacy by making it a lien upon the land. Could John C. Schenck discharge the land by simply charging the legacy to himself as execu tor ? If he could, the land was no security for the legacy ; and the legatees had nothing better than the mere person- al security of the executor. The will makes the legacy a lien upon the land until it is actually paid. Suppose the executor had prayed allowance for payment of a debt owing by the testator at the time of his decease, could he plead, or set up in any way, such an account as payment or settlement in a suit brought against him for that debt ? Much less could he, when he was the debtor, by any such act change the character of the debt, or its security. But, besides, Margaret and William Schenck were then infants. Under such circumstances, whatever the ac- counts of the executors before the Orphans Court may show, they cannot be permitted to operate, in the slight- est degree, to the prejudice of these defendants. Again, it is insisted that the marriage settlement be- tween Margaret Schenck, Asa S. Colton, and John C. Schenck, operated as a legal release and discharge of the mortgaged premises from the said legacy. The object oi that settlement was to make John C. Schenck a trustee, in order to secure to Margaret her separate estate free from the control and liability of her intended husband. The question is whether there is anything in the settle- ment to show that it was the intention of the parties, by that deed, to release the land, and to take the personal security of John C. Schenck for the legacy, or whether the legal construction of the deed must necessarily pro- duce that effect ? The deed, after reciting particularly the FEBRUARY TERM, 1854. 31 Terhune v. Colton. character of the legacies, then recites further as follows : "And whereas the said Margaret Schenck, one of the children of the said William C. Schenck, deceased, hath attained the age of twenty-one years, and hath had a full settlement with the said John C. Schenck, acting execu- tor of the said Joseph Schenck, deceased, on which set- tlement there appears due to the said Margaret Schenek the sum of $4256.92 from the said John C. Schenck, ex- ecutor as aforesaid ; and whereas a marriage is agreed upon and intended to be shortly solemnized, by and be- tween the said Asa S. Colton, of the first part, and the said Margaret Schenck, of the second part, and upon the treaty of the said intended marriage it was agreed upon, and that the said Margaret Schenck should assign, trans- fer, or otherwise convey, the fortune to which she is en- titled under and by virtue of the last will and testament of Joseph Schenck, deceased, her grandfather, or from any other source whatever, unto the said John C. Schenck, upon the trusts herein after expressed and declared of and concerning the same." Margaret then formally as- signs to John C. Schenck all and any sum and sums of money which she was entitled to under the will of Joseph Schenck, deceased, and all the property which at law or in equity she was entitled to, to have, hold, take, and re- ceive the same in trust for the said Margaret until her intended marriage; and immediately after the solemni- zation thereof, to place out the same at interest on bond and mortgage, or otherwise, as the said John C. Schenck might think best, and to change and alter," &c. I have referred to all the parts of this deed upon which the complainant relies to show the intention of the par- ties, and. the legal effect of the deed upon the question in controversy. I do not see anything in the deed to show that it was the intention of the parties that its mere exe- cution should deprive Margaret Schenck of the then ex- isting lien upon the land for her legacy. Nor do I consi- der that such is the legal construction or effect of the 32 CASES IN CHANCERY. Terhune v. Colton. deed. The deed recites that there had been a settlement between the parties, and that a certain sum was found due from John C. Schenck to Margaret Schenck. There was no payment of the amount due, but it was merely ascertained by the settlement what that amount was. All her claim, both at law or in equity, she assigns to John G. Schenck, as her trustee. She assigned the legacy, and the security for that legacy. Because the trustee was the owner of the fund which was the security for the debt, did the assignment of the debt and security to him, as trustee, release the security? Unquestionably, if another person had been created the trustee, the assignment to him of the debt would not have released the lien until the debt was actually paid. If it can be shown that John C. Schenck, in pursuance of his trust, did invest the trust fund on bond and mortgage in good faith in pursuance of the trust deed, then the land provided by the will would have ceased to be a security on the legacy, because such investment would have been a payment of the legacy to Margaret Schenck, or to her trustee, which is the same O * ' \ ' thing. It is apparent that the money was never raised to pay that legacy ; that it existed in no other way than as a debt due to Margaret Schenck from John C. Schenck, secured upon his land, and that while that debt and secu- rity were assigned to John C. Schenck, as trustee, with power to change the security, it never was in fact changed. In equity, John C. Schenck would never be permitted to interpose that trust deed as a defence against a claim of the legacy as a lien upon the land. The fact, that this lien was subsequently transformed into a decree in Chancery by the consent of all the parties to this deed, was notice to any subsequent creditor of John C. Schenck, as to the intention of the parties to the deed, and places such cred- itor in a situation no better than that of John C. Schenck himself, as to all the rights involved in that instrument. These were all the questions that appear to have been in controversy between the parties in the suit upon which FEBRUARY TERM, 1854. 33 Terhune v. Colton. the decree was founded. They were considered as fair matters of controversy. The claims of the mortgagees, and of the legatees, were both meritorious. All who had any interest in the questions involved were represented, and the controversy was compromised. The decree is tinal and conclusive between all the parties to it, as well as all persons claiming under them, unless it is impeached for fraud, or can be shown that there was some mistake which a court of equity ought to rectify. The next position taken on behalf of the complainant is, that the decree has been satisfied. Before examining this part of the case, however, it is proper that I should not overlook a matter of much controversy between counsel on the argument the validity and effect of the agreement upon which the decree was entered. On be- half of the complainant, it was contended that the decree must be enforced according to the terms of the agreement. On behalf of the defendants, counsel insisted that the agreement is not binding on their clients, because their solicitor had no authority from them to make it, and be- cause it was not within the scope of his retainer, as their solicitor, to enter into such an agreement on their behalf. I think the solicitor had not the power to enter into an agreement, by which the lien of his clients upon the mortgaged premises was postponed in payment to a sub- sequent encumbrance. He had no right to do it for a pe- cuniary consideration, nor in consideration that it pre- vented further controversy in the suit. An attorney has no right to give up the security of his client, unless he receives actual payment, or is specially authorized to do so. Tankerdey v. Anderson, 4 Dess. 44. The authorities are numerous and very unifonn against the authority of an attorney, without special authority, to enter into an agreement of this kind. But I think there is evidence enough of the acquiescence of the defendants in the agreement to infer that the solicitor had special authority 34 CASES IN CHANCEKY. Terhune v. Colton. to enter into it, to make it binding on the defend- ants. The defendants deny all knowledge of the agree- ment ; but many years have transpired since it was made, and it may have escaped their recollection. They settled another important suit under it, involving a much larger amount of money, and it is difficult to conclude, under all the circumstances, that in the subsequent transactions the agreement was studiously concealed from them. If so, it was a fraud upon them. But certainly their conduct shows, and particularly their willing acquiescence in the wishes of their uncle, John C. Schenck, that there could have been no object in concealing from them this agreement. But I cannot perceive that this is a question of any moment in the case. The defendants do not seek to enforce the decree in any manner which is a violation of, or inconsistent with that agreement. The complain- ants in that suit have been paid their debt ; they have no further interest in the agreement. The complainant in this suit has not, as I can see, any rights which can be protected under it. If the property was sold under the decree, the complainants were to be first paid. They have been paid without a sale of the mortgaged premises. If the property is now sold under the decree, the com- plainants in that suit have no debt to be satisfied out of the proceeds, nor does the complainant contend that he is to be subrogated to their rights. Has this decree been satisfied ? If it has it must have been by actual payment, or by the receipt of some speci- fic thing given and received in satisfaction, or by release. A release is not alleged ; nor is there any evidence of the defendants having received any specific thing in satisfac- tion of their claim. As to payment, the bill states " that. in what way the legacy due Margaret and William was satisfied, the complainant, at this distance of time, and in consequence of the death of John C. Schenck, has not been able to ascertain, but that it was considered settled FEBKUAKY TEEM, 2854. 35 Terhune v. Colton. between the parties, and that with that understanding a loan was made on the encumbered premises, which the present mortgage of the complainant represents." The testimony of Mr. Green and of Mr. Field is that they understood that the decree was settled by the par- ties, and that John C. Schenck represented it to be settled. But no one says that either Colton, or his wife, or Wil- liam Schenck, was a party to that understanding. No one says that either of them was present when any such un- derstanding was had, or that they assented to it. "Was there any one authorized by them to bind them by such an understanding ? Mr. Green was their solicitor, and he says he had no communication with either of them upon the subject. He was not authorized to bind them in such an agreement. Nor could John C. Schenck bind Colton and wife, although he was Mrs. Colton's trustee. Situated as he was, the common debtor of all the parties to the de- cree, for him to have executed an actual release without receiving payment or satisfaction would have been a fraud, and such release would have been void. How, then, caii this court, upon the allegation of the most respectable witnesses that they understood the decree was settled, and that such was the general understanding of the par- ties, declare this decree satisfied, when it appeals that these defendants were not present at such an arrange- ment, and in the absence of all proof that they were cog- nizant of such an understanding ? But it is said that theii future conduct showed an acquiescence in this under- standing, and that they had relinquished their rights under the decree. It is not pretended that any memorandum in writing was made as to any arrangement or understanding, nor can any witness tell the terms of any arrangement, either verbal or written, upon which such an understanding was founded. The declaration of Colton and wife, that the decree was satisfied, would not bind them. A debt of record cannot be released by parol. How far such a de- 36 CASES IN CHANCEKY. Terhune v. Colton. claration may bind a party as to one who upon the faith of it has advanced his money, is another question. The docket of the sheriff is appealed to as evidence of the settlement. On the 30th of March, 1837, Mr. Field, as the solicitor of the complainants in that suit, gave to the sheriff a receipt for $10,203.99, in full of the princi- pal and interest due the complainants. On the 22d of Sep- tember following, Mr. Green made the following entry, at the request of the sheriff : " 1837, Sept. 22d. Stay fur- ther proceedings on the above decree, as respects Asa 8 Colton and Wm. Sclienck, till further orders. Jas. S. Green, their solicitor." Mr. Green says he considered the decree as settled, and that is the reason why the entry was made. But the receipt itself will not bear such a construc- tion. He does not say he was authorized by his clients to enter satisfaction. His general authority, as solicitor, did not authorize him to settle that execution in any way, ex- cept by receiving the money. The receipt he gave in- volved him in no such responsibility as a receipt for the satisfaction of the decree would have imposed upon him. The solicitor having no authority to enter satisfaction, if the entry he did make could be construed to have that effect, he would be responsible to his clients for the amount due them on the execution. Such a construction cannot be put upon it, and it could not have been so intended by the solicitor. That entry is evidence, that at that time the execution was not settled, and that the solicitor was not willing to give the sheriff a receipt to that effect. There is another matter in connection with the receipts in the docket. On the 30th of March, 1837, the date of Mr. Field's receipt, the homestead farm of John C. Schenck was sold by his assignee, under the general as- signment made by Schenck, for the benefit of his credi- tors. The sale was made subject to this decree and exe- cution, and the property was purchased by William Gu- lick for $67. On the same day the mortgage was exe- cuted to Bishop, on the 157 acres of the homestead, for FEBRUARY TERM, 1854. 37 Terhune v. Colton. $5969,46. The bill alleges that the mortgage was made cotemporaneously with the settlement of the execution. Mr. Green, in connection with this subject of the sale, says, " The arrangenent, as I recollect, was, that the assignee should sell, and John Gulick become the purchaser j that mo- ney enough should be raised to discharge the decree, so that a clear title might he given to the man who should loan the mo- ney, and that idea was carried out" Was this done on that day? Was this arrangement carried out'? Was there mo- ney enough raised, or borrowed, to discharge that decree ? Such, undoubtedly, was the intention of the parties. And this accounts for it, why it was that Colton and William Schenck were not there, and were not consulted about the arrangement. If the settlement had been completed, as contemplated, and money enough raised to discharge the decree, their assent was not necessary. Only part of the arrangement was earned out. Money enough was raised on that day to discharge a part of the decree, and it was discharged. It appears to me that this evidence shows conclusively that the decree was not settled on thai day ; that it was understood it should be, but that the understanding was not carried ont. It was the disap- pointment of this expectation that led to all the embar- rassments and misunderstanding that followed. John C. Schenck undoubtedly intended to pay off the decree, and subsequently made every effort to do so. If he did not succeed, the defendants are not to have their liens post, poned to , subsequent encumbrancer, unless it can be shown that, by some act of theirs, he has been induced to loan his money upon a false security. But for the complainant, it is further contended, that by the subsequent conduct of the Coltons and William Schenck, they abandoned their rights under the decree. It is asked, why was this decree allowed to sleep for eleven years? John C. Schenck was dead. No mere respect, or kind feelings for their uncle, could have induced the defend- ants to acquiesce in this delay. The only answer given is, that VOL. ii D. 33 CASES IN CHANCEKY. Terhune v. Colton. they did not know what their rights were. I can only say, that the evidence and the character of the whole transac- tion, satisfy me that this fact should not prejudice the de- fendandts. Let us examine the specific acts of the de- fendants relied upon as evidences of the abandonment of the decree. First ; as to William Schenck. It is said he presented his claim to the assignee of John C. Schenck, and that it was passed upon by the court and rejected by the court. The only evidence respecting this is an exhibit showing an order made by the court upon exceptions filed to the claims of certain creditors. The order declares, " the claim of John C. Schenck, as executor of Joseph Schenck, for the legacy of William Schenck of $4843.11 ; the claim of Enoch Johnson of $2646.23 ; the claim of Caleb Johnson of $15,583.88 : the claim of Isaac Story, executor of James Stoddard, deceased, of $2566.32, having been paid out of the real estate, the court order that the same be not allowed. This order shows that William Schenck was no party to the proceedings ; that he did not himself present the claim, but that it was presented by John C. Schenck, as executor. William Schenck, then, is neither bound by the adjudication of the court upon his claim, nor can he be prejudiced by the fact, that his claim was presented. But if he had presented the claim himself, that circum- stance would not have prejudiced his rights under the decree. The Orphans Court might probably have turned him over to his lien upon the land, unless he would con. sent to release it for the benefit of the creditors at large. As to Asa Colton and wife's acts under the assignment of John C. Schenck. In August, 1836, six months prior to the decree, John C. Schenck, as trustee, presented a claim to his assignee for the amount of $4843.11. This amount included the legacy in question, and also the other legacy given to Margaret by the will of Joseph Schenck. To the claim presented, John C. Schenck annexed his affidavit ; and on the same paper, Asa Colton and wife FEBKUAKY TEEM, 1854. 39 Terhuce v. Colton. made their affidavit that the sum claimed was due, as stated in the account. On the 1st of November, 1837, John C. Schenck received a dividend on the claim, as presented, of $486.73, and in the receipt he gave for it, calls it " the first dividend on the claim of Asa S. Colton and wife, which I receive as their trustee. August 31, 1841." John C. Schenck, as trustee, received from the assignee $685.30, and gave a receipt for it "in full of the second and last dividend of said Schenck's estate upon final settlement." The receipt of these dividends did not operate in law as a release of the lien upon the land. It was not contended that the lien was at all affected by the statute under which the assignment was made. But it was said that these proceedings show that the decree had been abandoned. Such was not the legal effect of those acts of the parties. If such was their intention, they have a right to repent of it, and no one can question that right, unless he can show some other legal or equitable discharge of the debts than can be inferred merely from these acts. But the argument was presented in a more forcible manner as to the abandonment of the decree. Admit, it is said, that no one of these acts referred to amounts to a legal or equitable discharge of the decree, it is proved that there was an understanding that the decree should be con- sidered satisfied, and all these acts together show that Asa Colton and wife and William Schenck acquiesced in that understanding. These acts all show one thing most incon- testably, and it is this, that if any one ever understood the decree was satisfied, no one understood or supposed that the debt secured by it was paid or settled. All these acts, which are now brought up in judgment against the defendants, as evidences against them, were nothing more than honest efforts on their part to secure their debt. They are all consistent with the fact, that the debt was acknowledged due, and was secured by that decree. They do not prove that these defendants, without any con- sideration, released the only security which they had for 40 CASES IN CHAKCERY. Terhune v. Colton. their debt, and that, too, without taking any evidence that the debt itself was still in existence. Had this been a question in which Colton and wife, William, and John C. Schenck, only were interested, I cannot think a contro- versy could have arisen upon the evidence in this case as to the rights of the defendants to enforce the decree. It is the hardship of the complainant's situation that has ex- cited a sympathy, which has given an importance to these various circumstances that they would not otherwise have possessed. It is said, however, that the complainant stands in a very different position from that of John C. Schenck. True, he does. But let iis see whether his equities, as against these defendants, are superior to those of John C. Schenck. I shall examine this part of the case in the most favor- able light it can be viewed for the complainant. I shall consider him as standing in the place and stead of James Bishop, and entitled to all the equity which Bishop could have claimed under his mortgage. On the 30th of March, 1837, the amount of the lien on the decree first to be satisfied was $10,203.99. On that day, this amount was paid off, and on the same day James Bishop advanced to John Gulick, who had purchased, and then held the equity of redemption in the premises em- braced in the decree, $5969.46. It is alleged that this money was appropriated to pay, in part, the first lien on the decree. This was not proved, but may, I think, be admitted without affecting the controverted question. John Gulick gave to Bishop his bond, to secure the money he had advanced, and a mortgage upon the premises. The bill charges, that on the same day the execution upon the decree was settled between the parties, and a new ar- rangement made between them ; that the mortgage from Gulick to Bishop was made cotemporaneously with the settlement of the execution. Then the bill states, " tJie arrangement that was made, as FEBRUARY TERM, 1854. 41 Terhune v. Colton. your orator is informed and believes was this : the said James Bishop was willing to take a mortgage upon the said 157 acres of land provided it could be cleared of all existing encumbran- ces. 1 his could only be effected by a satisfaction of the exe- cution issued out of the Court of Chancery, and then in the hands of the sheriff. With the money thus obtained from the said James Bishop, together with other moneys raised by the said John Gulick, the whole amount of principal and interest due to tJie said Caleb and Enoch Johnson was paid, together with the costs of the said suit and the sheriff's execution fees. In wJiat way precisely the legacy of the said Margaret Colton and William Schenck, and the amount due to them under the execution was satisfied and arranged, your orator at this dis- tance of time, and in consequence of the death of the said John C. Schenck, has not been able to ascertain. It was an arrange- ment, however, to which the solicitor of the said Asa S. Colton and Margaret his wife and William Schenck, and also John C. Schenck, the trustee of the said Margaret Colton were parties, and with which they were entirely satisfied." It thus appears that Bishop advanced his money under the belief, and with the understanding that the Chancery execution was satisfied and arranged, and the property free from encumbrances. It turns out, however, that the execution was not satisfied, and that although the parties supposed it was, there was a misunderstanding upon that subject. The question is, are these defendants responsible for the misunderstanding ? "Was anything done by them to mislead Bishop, and which makes it inequitable that they should be permitted to enforce their execution ? The bill does not allege that the defendants took any part in the proceedings, or that they, or either of them, ever held out to Bishop, or any one else, that the execution was satisfied or arranged. It charges the arrangement was satisfactory to the defendants' solicitor. lie had no powc > to enter into any arrangement to satisfy the decree, ex- cept upon a receipt of the money due upon it. He Cv>m- pleted all the arrangements he was authorized to make, D* 42 CASES IN CHANCERY. Terhune v. Cotton. and that was not to enter satisfaction, but to give a stay of the execution. When Bishop advanced his money, that decree was before his eyes open and unsatisfied ; he had actual notice of it, and of the large amount due upon it ; he chose to advance his money upon a vague under- standing that the execution was satisfied. If he relied upon the mortgaged premises for his security, he was guilty of a negligence which meets with no favor in this court. He had not the promise even, of a reliable person, that the encumbrance should be satisfied ; and so vague was the understanding upon which he relied, that neither himself, or the three other individuals who participated in the arrangement, can tell what the terms of the arrange- ment were. The result of it was, that the decree and exe- cution were considered satisfied. There is no principle of equity which will justify the court in saying to these defendants, as between them and Bishop, your conduct was such, in permitting Bishop to advance this money, that you must be postponed to a future encumbrancer. Have the defendants, since Bishop advanced his money, done anything to prejudice his security, or the rights of any person claiming under it ? The mere delay has not prejudiced any right. If they delayed to enforce their rights under the decree, they have been vigilant in their endeavors to secure their debt. The subsequent acts of the defendants, so far from prejudicing, have benefited the complainant. The substitution of the bond and mort- gage of John C. Schenck for those of John Gulick was an act for which the complainant is alone responsible. My conclusion is, that the complainant has not made out a case to justify me in enjoining the defendants from proceeding to enforce their execution. There must be a reference to a master to take an account of the amount due the complainant upon the decree and execution, after crediting upon the same such payments as have been made thereon. There are one or two observations, which it appears to FEBRUARY TERM, 1854. 43 Terhune v. Colton. me proper that I should make, in reference to taking the accounts, in order that both parties may be fully apprized of the views of the court upon the whole case. The bill alleges that William Schenck's interest was satisfied by certain bonds and mortgages, which were af- terw % ards paid up, with the exception of a small balance of $96.24, for which he received in payment a note of* John C. Schenck. The evidence is clear that the bond and mortgage given by John C. to William Schenck, of the 7th of August, 1837, for the sum of $3283.40, was in payment of what is called the Slayback legacy, and has no connection with the legacy in question. This is proved by Mr. Green's docket ; and the correspondence of the amount of the bond and mortgage with that due on the legacy, with the correspondence of dates, place this mat- ter beyond dispute. As to the appropriation of payments made by John C. to William Schenck, and of which no special appropriation has been made between the parties, whether they are to be applied upon the decree or upon other claims of William against John C. Schenck, is left an open question for the master, the parties being at lib- erty to take such additional evidence as they may see proper. In reference to the payments to be allowed on the amount decreed in favor of Asa S. Colton and wife, there is more difficulty. It appears, from the evidence now in the case, that if all the payments made were credited upon the decree, it would be satisfied. Colton and wife allege that they had another claim against John C. Schenck for the Slayback legacy, and that the payments made, or a part of them, have been appropriated upon that claim. For the Slayback legacy, there was a decree in favor of Asa S. Colton and wife for $3187.82, and in favor of Wil- liam Schenck for $3187.82. The prior encumbrances amounted, on the 21st July, 1837, to $8840.47. The pro- perty was sold under and by virtue of the decree, and the net proceeds of sales amounted to $12,889.50. William 44: CASES IN CHANCEKY. Terhune v Cohon. Schenck's interest in that decree was liquidated by the bond and mortgage before referred to. This left in the hands of the sheriff more than money enough to satisfy the Colton's claim, with a surplus of upwards of 'five hun- dred dollars in his hands. On the 2d of August, 1837, the sheriff paid to the solicitor of the Coltons and William Schenck $3419.75, and the solicitor gave him a receipt, as having received that amount in part of claim of Asa S. Colton and William Schenck. On the same day the sheriff paid to John C. Schenck $629.08, surplus money in his hands. William Schenck's claim being satisfied by the bond and mortgage, Colton and wife were entitled to receive the amount paid to the solicitor, which was sufficient to satisfy their claim. The Slayback legacy was paid and extinguished, and Colton and wife could have no further demand for it upon any one, except upon their solicitor. If John C. Schenck afterwards became indebted to them, they must show such indebtedness : if they can- not, any payments afterwards made must be appropriated to the payment of their claim upon the decree in question. I have not overlooked the fact that John C. Schenck af- terwards received the dividends from the assignee for slaims presented on behalf of Colton and wife. But there is nothing in the receipts which John C. Schenck gave for the dividends, nor in any other exhibit, to show that these dividends .were upon anything except the home- stead legacy. The claim filed did, it is true, embrace both legacies ; but that claim was presented in 1836, a year be- fore the Slayback legacy was paid by the sale under the decree. It is very certain, if Schenck did receive a divi- dend on that legacy, it was a fraud upon the other credi- tor ; for that legacy had been paid, and could not be re- vived again in any shape. It was suggested that the solicitor paid over the money he received to John C. Schenck. There is no evidence of this. If he did, it did not revive the debt due upon that decree. If he paid it with the consent of Colton and wife, it created a new FEBRUARY TERM, 1854. 45 Veghte v. Hoagland. debt from John C. Sehenek to them. How he could get a dividend on it, I cannot conceive. This whole matter is open to further investigation before the master. CITED in Grtde v. Van Vale*, 10 C. E. Gr. \fl ; Blauvelt v. Van Winkle 2 Slew, 110. VEGHTE vs. HOAGLAHD. To Justify this court's interfering with an award, it must be shown there was frau'l, mistake, or accident. The Accident must be such as to have deprived the party of the benefit of a bearing or of some substantial right ; the fraud must amount to corrupt on, partiality, or gross misbehavior in the arbitrators : and the mistake, if in law, tuu&t be a plain one, upon some material point affecting the case. If a matter of fact, it mart, in general, be such as tho arbitrator himself would admit, such aa a miscalculation in an account, and the like. Where the bill sta'ed "the award was not for damages which in the opinion of the said arbitrators had accrued subsequent to the said twenty-second day of October, in the year 1847,'' And which alone were suomitted to them to be arbitrated, the testimony of the arbitrators themselves was held to be conducive upon it. A complainant cannot invoke the aid of a court of equity on the ground that an award was illegal, because not in pursuance of the submission. When it appears, by the bill itself, that the parties mutually agreed to the course pursued by the arbitrators in the matter complained of, it would be against equity nnd good conscience to permit the complainant thus to repudiate hi* own act*. Tliis was a bill filed to stay the collection of a judgment on an award, and to set aside the award. By an article of agreement under seal, dated July 23d> 1838, it was covenanted, between II. V. Hoagland, the plaintiff, and A. Vcghtc, the defendant, that Veghte, who was about to construct a mill, and to erect a mill dam, the dam to be partly on the land of Mr. Hoagland, sprne of which would bo in consequence covered with water, should have permission to enter upon the land for that purpose ; that Veghte would pay all the damages which should result from the exercise of the license and author- ity so given, to be appraised by two disinterested persons 46 CASES IK CHANCERY. Veghte v. Hoagland chosen by the parties, and in case of their disagreement, by an umpire chosen by the arbitrators, whose award, or that of any two of them, should be final and conclusive between the parties. Two successive appraisements were made under this agreement, by arbitrators chosen by the parties, the first dated 13th of October, 1845, the second dated 22d October, 1847, by which the further sum of $55.50 was also awarded for damages sustained by the mainte- nance of the dam subsequent to the first award. These Bums were paid accordingly. Hoagland, supposing he had sustained additional injury subsequent to the second award, the parties again chose arbitrators. The two arbitrators having called in an um- pire, and the three so chosen united in an award, dated November 2, 1849, by which they awarded the further sum of $77.88 to be paid by Yeghte to Hoagland. This award specified that part of the said sum of $77.- 88 was assessed by them on lands which former arbitrators had valued in their assessment and award at $60 per acre, we, the present arbitrators, considering and estimating the difference between the interest of said moneys, so as- sessed and awarded as aforesaid, and the value of the crops which said lands would have produced to the said Hoagland, if 'not so damaged, to be $15.88 ; and for all other damages, we do assess the sum of $62.50. On this award, Hoagland brought an action of debt before a justice of the peace, and received judgment for the full amount of the award. An appeal was taken to the Court of Common Pleas, who struck out the said sum of $15.88. Hoagland took the matter np to the Supreme Court by certiorari (see 3 Zdb. 92), which court affirmed the judg- ment of the Common Pleas. The complainant then exhibited this bill, praying that the said award be set aside, and the defendant enjoined from enforcing his judgment at law. FEBRUARY TERM, 1854. Veghte v. Hoagland. The injunction was granted. The cause now came up for final hearing upon pleadings and proofs. G. H. JSrovm, for complainant. R. S. field, for defendant. THE CHANCELLOR. One complaint made against the award is, that it purports to be in pursuance of a sub- mission, wliich, upon a legal construction, contemplates only one award upon the matters submitted, " and that to be final and conclusive between the parties." It is insisted that the award is therefore illegal, because it is not in pursuance of the submission, and ought not to be enforced. Waiving the consideration whether this is not a legal question, which ought to have been determined by the legal tribunal, when this award and the parties were there, how can the complainant invoke the aid of a court of equity on this ground, when it appears, by the bill itself, that when the first arbitrators met, the parties mutually agreed that the arbitrators should make an assessment of the damages in question only from the time of the erec- tion of the mill dam to the date of the report ? When, subsequently, the parties selected other arbitrators, who awarded damages arising after the date of the first report, and then selected a third set of arbitrators, for the pur- pose of assessing the damages and making an award, who the complainant now says had no legal authority to make any award at all, it would be against equity and good conscience to permit the complainant thus to repudiate his own acts. He agreed, by his solemn acts, to be bound by the award. The parties mutually agreed to this mode of settling their disputes. They have given their own construction, thus far, to the written agreement thus en- tered into ; and, as far as proceedings have been had by their mutual consent, that consent will bind them, at al] events, in this court. The bill states that Hoagland 48 CASES IN CHANCEKY. Veghte v. Hoagland. alleged, that since the date of the second award, he had sustained damages by reason of the erection of the mill dam ; and that, in order to give full satisfaction, the com- plainant agreed to the selection of arbitrators, and to sub- mit to them the question of damages subsequent to the date of the second award. In pursuance of this agree- ment, the award now complained of was made. What are the objections to the award ? The bill shows, and about this there is no dispute that the arbitrators were selected to estimate and assess the damages and loss sustained by Henry V. Hoagland, by reason of the erec- tion of the mill dam, from the 22d day of October, 1847, (the date of the second award) until the 22d day of No- vember, 1849. There is only one specific ground of com- plaint stated in the bill. It is, that the amount awarded was not for damages which, in the opinion of the said ar- bitrators, had accrued subsequent to the said 22d day of October, 1847, but that they took into consideration, and made their award of damages principally upon matters which had been submitted to the former arbitrators,! and for which full damages had been awarded and paid. There is no othei* ground of complaint stated. The complainant must maintain this issue, or he cannot be relieved. To justify this court interfering with an award, it must be shown there was fraud, mistake or accident. The ac- cident must be such as to have deprived the party of the benefit of a hearing or of some substantial right ; the fraud must amount to corruption, partiality, or gross mis- behavior in the arbitrators ; and the mistake, if in law, must be a plain one upon some material point affecting the case; if a mistake of fact, it must, in- general, be such as the arbitrator himself would admit, such as a miscalcu- lation in an account, and the like. 2 Stores Eq. J. 1451; Adm?r of Sohenck v. Cwttrell, 1 G. C. JR. 301. In this case, there is no accident alleged which inter- fered with the complainant's rights, or has been the occa- sion of injustice. The arbitrators committed no mistake, FEBRUARY TEEM, 1854. 49 Veghte v. Hoagland. as to the law. They did not assume that, by law, they had a right to go beyond the date of the second award. And yet it is alleged that they did go beyond that date ; and it is upon this ground that the interference of the court is invoked. If this is so, then the arbitrators made a mistake, and they unintentionally included damages they did not intend. From the very nature of the mistake alleged, it must be one unintentional on the part of the arbitrators, one which can be readily pointed out to them, and made plain and palpable. The bill states the mis- take to be a plain one. In the language of the bill, " the award was not for damages which in the opinion of the said arbitrators had accrued subsequent to the said twenty- second day of October, in the year eighteen hundred and forty-seven, and which alone were submitted to them to be arbitrated." This, then, is the only issue made by the bill, whether in the opinion of the arbitrators, the dam- ages they awarded were not subsequent to the date of the second award ? From the very nature of the issue, the testimony of the arbitrators themselves must be conclusive upon it. William A. Voorhees, one of them, says he does noi think they went behind the prior awards in making any allowance of damages. Ralph Voorhees, another one, says, " I do not remember that we allowed damages for anything prior or beyond the two years. I am not certain that we did not." Joseph Thompson, the other arbitrator, says, " I am satisfied that we did not, and did not intend to allow for any damages prior to the last award. We did not allow for any items of annual damage which had been allowed, except what is embraced in the first item." He further says they had both prior awards before them, and did not " intend to assess any damages where they under- stood permanent damages had been assessed. The arbi- trators were examined with great minuteness as to the several items which made up their award. It is very clear that, in their opinion, they did not make any mistake. VOL. n. E 50 CASES IN CHANCEKY. Yeghte v. Uoagland. They are unwilling, after a thorough examination, to ad mit that any mistake was made. Is there a mistake shown, so clear, so self-evident, that it is apparent they wilfully persist in refusing to acknowledge what any candid, sensi- ble man ought to admit ? There was considerable evidence taken upon the point, and there possibly is room for a Difference of opinion as to whether some of the items of damage embraced in the last, may not have been included in one of the prior awards. But whether these damages did accrue prior to the date of the second award, was a matter which, by the parties, was submitted to the judg- ment of these three men, and with that judgment this court has no right to interfere. It was insisted, by the complainant's counsel, that it was apparent, from the evidence, that some of the items of damages allowed were not proper subject matters of damages. But this is not an issue made by the pleadings. If it were, I could not interfere. What were, and what were not, proper matters to be adjudicated upon as dam- ages, were submitted to the discretion of the arbitrators. An error in judgment on the merits is no ground why this court should interfere with the award. It was said by counsel that this was an important cause for the complainant, because it involved the question, whether the articles of submission between the parties did not, in terms, embrace both the prospective, as well as actual damages occasioned to the defendant by the erection of the mill dam. But I am not called upon to decide that question. If the defendant should demand further dam- ages, and the complainant should see proper to join the defendant in selecting men to determine upon his demands, the complainant must submit to their determination. Should he refuse to arbitrate, then the defendant must re- sort to some other tribunal, who will determine as to the effect and the extent of the submission and award hereto- fore made between the parties. The award must stand, and the bill be dismissed with costs. FEBKUAKT TEEM, 1854. 51 Norris v. Clark. JOHN D. NORRIS, sole executor of Noah Clark, deceased, vs. ELIZABETH M. CLARK and others. Dower is a legal right, which is favored both in law and equity. To debar the widow of this right, and put her to an election between her dower and a bequest in the will, there must be some express declaration of the testa- tor excluding her from her right, or it must be clear, by implication, that such was his intention. In this case the words were, " I give, devise, and bequeath to my beloved wife, Elizabeth M. Clark, six hundred dollars, at the end of six months after my decease, and my gold watch, which she carries, and the silver teaspoons, the two sets of window blinds in the back room, and the hal lamp, which she brought me at or after our marriage ; and her acceptance of the above gift shall for ever exclude her from any further demands on my estate." It was insisted that the acceptance of the gift excluded the widow from any further demand, only against the personal estate ; that the legacy was to be paid her by the executor, and that against that estate out of which the legacy was to be paid she was excluded from any further demands. It was held, that if the other parts of the will gave no further indication of the testator's intention, this construction might prevail But as the testator had put both real and personal estate in the hands of the executor for disposition, and disposed of his whole estate, real and per- sonal, through the executor, the person to pay the widow the legacy, and the disposition was inconsistent with the widow's enjoyment of her legal right, it was the clear and manifest implication, from the whole will, that the testator did intend the gift to be in lieu of dower, and did not by the use of the word "estate " mean personal estate only. The bill was filed to compel Elizabeth M. Clark, the widow of Noah Clark, the complainant's testator, to elect between her dower and a legacy in the will. Elizabeth M. Clark, by her answer, insists that she is entitled to the legacy as well as her dower. The will is as follows : "In the name of God, amen. I, Noah Clark, of the township of Springfield, in the county of Essex, and state of New Jersey, being in good health, sound mind, and disposing memory, for which I thank God, who has so favored me, and duly considering the mortality of my body, and knowing that it is appointed for man once to 52 CASES IN CHANCEKY. N orris v. Clark. die, and the time when very uncertain, do make and pub- lish this my last will and testament. First, of all. I give and recommend my soul into the hands of God, who gave it ; my body I commit to the earth, to be buried in a christianlike and decent manner, at the discretion of my executor, and as touching such worldly estate wherewith it hath pleased God to bless me with in this life, I give and dispose of in the following manner. Second. I direct that all my just debts and funeral charges be paid. Third. I give, devise, and bequeath to my beloved wife, Elibabeth M. Clark, six hundred dollars, at the end of six months after my decease, and my gold watch, which she carries, and the silver teaspoons, the two sets of window blinds in the back room, and the hall lamp, which she brought me at or after our marriage ; and her acceptance of the above gift shall for ever exclude her from any fur- ther demands on my estate. Fourth. I give, devise, and bequeath to my eldest daughter, Mary P. Smith, the interest or dividend of twenty shares of my bank stock in Elizabeth State Bank, whom I hereby authorize to receive and receipt for the same, and no other person. Fifth. And at Mary P. Smith's decease, I give and be- queath the interest or dividend of the above named twenty shares of bank stock to be equally divided between Eliza- beth Stephens and Benjamin C. Crane, to be receipted for with their own hands, and no other person. Sixth. I give, devise, and bequeath to my grand daugh- ter, Abigail O. Crane, the interest or dividend of seven- teen shares of bank stock in the above said bank, to be receipted for with her own hand, and no other person ; and if either Elizabeth C. Stephens, Abigail O. Crane, or Benjamin C. Crane should die not leaving a lawful heir, in that case their interest and benefit in my estate shall descend to the survivors or survivor of the longest FEBRUARY TEEM, 1854. 53 Norris v. Clark. liver. And at the death of my three grandchildren, Eliza- beth C. Stevens, Abigail O. Crane, and Benjamin C. Crane, I give, devise and bequeath the twenty shares of bank stock last mentioned to be equally divided amongst the lawful heirs, the children of the three that is then living at the decease of the last of the three ; and if these should leave no lawful heirs, then and in that case I order that the twenty shares be divided as the surplus according to the last section of this my will. Seventh. I give, devise and bequeath two thousand lollars to my daughter, Elizabeth S. Morris. Eighth. I give, devise and bequeath to my daughter, Permelia C. Hedges, two thousand dollars. Ninth. I give, devise, and bequeath to my grand daughter, Mary Permelia Clark, of St. Francisville, if she should arrive at the age of eighteen years, five hun- dred dollars. Tenth. I give, devise, and bequeath to the Bible So- ciety of New York one thousand dollars on the follow- ing condition : that the directors thereof shall furnish the whole value of that sum in Bibles, and by and under the direction of said society, the Bibles shall be sent, at their discretion, to any place or country where they shall not and afford the highest price ; the amount and pro- ceeds shall be returned, and remitted to the society again, which society shall again furnish its value in Bibles, and again send them to the best market, and so continue to furnish the worth of the proceeds until the world is fur- nished with Bibles, or until the whole sum is lost in defi- ciencies ; and said society shall be under obligations to report once a year the number of Bibles furnished and sold, and the state of the fund at the end of each year, through the Missionary Herald at their own yearly report, a copy of which shall be sent my executor. Eleventh. I order and direct the remainder of my ob- ligations, my house and lands, to be converted, with the aioveables, into money, and divided amongst my heirs, as E * 54 CASES IN CHANCEKY. Norris v. Clark. follows : one-third part to be put out at interest, secured by bond and mortgage, the interest of which shall be paid to Abigail O. Crane and Elizabeth C. Stephens, during their lives ; and if either should have lawful children, they shall receive the principal, with the uncollected in- terest that may remain; and one-third part to Permelia C. Hedges, and one-third part to John D. Norris, for his services in settling my estate. Twelfth. I constitute and appoint John D. Morris my sole executor, whom I authorise to execute my will, and do all things pertaining to my estate. In witness where- of, I have hereunto set my hand and seal, January fifth, one thousand eight hundred and forty-nine." A. C. M. Pennington, for complainant. W. K. McDonald, for defendant. THE CHANCELLOR. The question is, was the legacy to the wife in lieu of dower ? It is true dower is a legal right, which is favored both in law and equity. To debar the widow of this right, and put her to an election between her dower and a bequest in the will, there must be some express declaration of the testator excluding her from her right, or it must be clear, by implication, that such was his intention. The authori- ties will be 'found in 2 Williams on Ex. 889, and the notes, and in 1 Hop. Husb. and wife 57T ; 2 Rop. Leg. 530. See, also, Stark et al. v. Henton et al., Saxton 224. The rule, as laid down by Lord Redesdale in Birmingham v. I&rwan, 2 Selio (& Lefr. 452, has been always recognized : " It is to to be collected from all the cases, that as a right to dower is in itself a clear legal right, an intent to exclude that right by voluntary gift must be demonstrated, either by express words or by clear and manifest implication. If there be anything ambiguous or doubtful, if the court cannot say it was clearly the intention to exclude, then the averment FEBKUAKY TEEM, 1854. 55 Norris v. Clark. that the gift was made in lieu of dower, cannot be sup- ported; and to make a case of election that is necessary, for 9 gift is to be taken as pure until a condition appear. Thi. I take to be the ground of all the decisions." T!ie principle upon which the court will act is well set^ed. The difficulty is in its application, and has given rise to conflicting decisions. In this case the devise is, " I give, devise, and bequeath to my beloved wife, Elizabeth M. Clark, six hundred dol- lars, at the end of six months after my decease, and my gold watch, which she carries, and the silver teaspoons, the two sets of window blinds in the back room, and the hall lamp which she brought me, at or after our mar- riage ; and her acceptance of the above gift shall for ever exclude her from any further demands on my estate." It is insisted that this does not amount to an express declaration excluding the right of dower, and that the acceptance of the gift excludes the widow from any fur- ther demand only against the personal estate ; that the legacy is to be paid her by the executor, and that against that estate, out of which the legacy is to to paid, she is excluded from any further demands. If the other parts of the will gave no further indication of the testator's in- tention, this construction might prevail. Although in the case of Boynton v. Boynton, 1 Brown? 8 Rep. 447, where the testator had given to his widow, in the event of her mar- rying again, one hundred pounds a year, as the full be- nefit she was to derive from his estate, the Lord Chan- cellor said, "By these expressions, I rather think he in- tended his estate should be quite clear of her," and he so decreed. And also in Warburton v. Warburton, 23 E. C. L. R. 416. But see Parker v. Sowerly, 27 E. C. L. R. 154. But I think it appears, by clear and manifest implication from the whole will, that the testator did intend the gift to be in lieu of dower, and did not, by the use of the word " estate," mean personal estate only. In the first place, he puts his whole estate, botli real 56 CASES IN CHANCEKY. Norr s v. Clark. and personal, in the hands of his executor for disposi tion; and the whole will shows that, by the use of the word estate, he means both real and personal estate. There can be nothing, then, in the idea that the executor has control only of the fund out of which the legacy is to be paid, and that the estate in the hands of the execu- tor should be regarded as different and distinct from that out of which the widow has her dower. In the next place, the testator disposes of his whole es- tate, real and personal. He disposes of it through the ex- ecutor, the person to pay the widow the legacy ; and the disposition is inconsistent with the widow's enjoyment of her legal right. The testator directs his house and lands, which it is admitted is all the real estate of which he died seized, to be converted into money, and the mo- ney divided as therein directed. To allow the claim of dower would disappoint the will. The disposition of the testator's property is such as to leave no fund for her claim of both. Vallareal v. Lord Galway, Ambler 683. I think it is clear that the testator intended his executor should sell only his real estate free from encumbrance. If such was his intention, he intended that the gift to his wife should bar her of her dower. In the case of Herbert and others v. Wren and ot/iers, 7 Cranch 379, Marshall, C. J., says, " The clause, too, directing the residue of his estate to be sold for the payment of debts, is indicative of an expectation that the property stood discharged of dower, and is a complete disposition of his whole estate. The testator appears to have considered himself as at liberty to arrange his property without any regard to the encumbrance of dower." But in the case of Gibson v. Gibson, 17 E. L. & E. E. 352, the Yice Chan eellor did not give much weight to a like clause in the will, as a question of the widow's right to her dower. If it is proper to consider the relative value between the legacy and the dower, there is nothing in it repugnant to this construction. The legacy is about the value of the FEBKUAKY TEEM, 1854. 57 Lutheran Church v. Maschop. dower, as would appear from the pleadings. I think there is something, too, in the fact that the widow has no other demand against the estate than her right of dower. This is admitted by the answer.. As the legacy was for ever to exclude her from any further demand on the es- tate, what demand did the testator refer to, if not the de- mand of dower? The widow must make her election. CITED in Freeland v. Mandeville, 1 Stew. 563, 5C4. THE GERMAN EVANGELICAL LUTHERAN CHURCH AND CON- GREGATION OF THE CITY OF NEWARK, CONNECTED WITH THE EVANGELICAL LUTHERAN MmisTERruM OF THE STATE OF NEW YORK AND ADJACENT PARTS, AND JOHN FREDER- ICK Pi EL and others vs. GEORGE FREDERICK MASCHOP and others. This court his no rifrht to institute an inquiry into the doctrines or mode o worship of any religious society, except such inquiry shall become absolutely necess >ry for the protection of trust property. Nor wou'd it be justified in issuing an injunction to enjoin a clergyman, who without any pretence of right, should take upon himself to trespass upon a con- gre_rati >n, by entering their pulpit, and promulgating bis peculiar religious doctrlnsn. The court has no authority to enjoin a mere trespasser without shadow o right. The court cannot grant an injunction to allay the fears and apprehensions of indi- viduals. TYey must show the court that the acts airainit which they ask pro- tection are not only threatened but will, in probability, be committed to their injury. THE CHANCELLOR. The above corporation was organ- ized under the general act entitled, " An ast to incorpo- rate trustees of religious societies." After thoir organi- zation, Samuel II. Conger and wife conveyed to them a lot of land in the city of Newark, upon which they erected a house of worship. The deed of conveyance was upon the following trust : " to have and to hold the said pro- 58 CASES IN CHANCEKY. Lutheran Church v. Masohop. perty as an Evangelical Lutheran Church for ever, in which the doctrine of the Augsburg Confession and Lu- ther's Smaller Catechism shall be taught and adhered to ; and provided, that if flecessary, the privilege of preach- ing in the English language, besides the German, shall be granted to the rising generation, until such a time that a separate church can be provided for an English con- gregation, so, however, that the Germans shall always have the right to select their time for worship ; and pro- vided, further, that the said party of the second part shall not, by deed, mortgage, or by any other ways or means, alienate, dispose of, or otherwise charge or encumber said property, excepting the mortgage now given to Samuel H. Conger to secure part of the purchase money of said premises. And provided further, that in case these condi- tions be violated, then any one or more regular members shall have the right of applying to the Evangelical Lu- theran Ministerium of the State of New York and adja- cent parts with which the congregation is connected, to take possession of, hold, and keep said property in trust for carrying out the above named purposes ; and in case said conditions be violated, and no appeal made to the said Evangelical Lutheran Ministerium of the State of New York and adjacent parts, then the officers of said ministerium shall constitute a board of trustees, with full powers to secure said property for the above named pur- poses." At the time of the organization of the society they adopted a constitution, or rules and regulations, for the congregation. By this constitution the seniors and war- dens, seven in number, are the trustees, and, as such, have the control of the property of the church. The pas- 'tor of the church must be a regular clergyman connected with some evangelical Lutheran synod in the United States of America: his salary is fixed by mutual agree- ment, and he is elected to his office for such a term as he and the congregation may mutually agree upon. In case FEBRUARY TERM, 1854. 59 Lutheran Church v. Muschop. he is accused of immoral conduct, the seniors and the wardens shall examine the accusation, and if it prove to be founded, they shall bring it before the congregation, upon which the votes of two-thirds of the members hav- ing a right to vote shall be sufficient to discharge him from his office ; if there are not two-thirds, but a majority against him, the matter may be submitted to the synod. The pastor is elected by a majority of votes, on the recom- mendation of the church council. In the year 1841, George F. Maschop, one of the de- fendants, was elected the pastor of the congregation for a term of years not expired. The bill alleges that about a year ago, he commenced a systematic effort to lead the congregation to adopt practices in church worship, which are not approved or practised by those churches which are connected with the Evangelical Lutheran Ministerium of the State of New York and adjacent parts, among which practices was the use of lighted candles during the service in the church in the daytime, the use of the wafer at the sacrament of the Lord's supper, auricular confession, the use of the sign of the cross, and such Romish practices as are disapproved by the evangelical branch of said denomi- nation. The bill further charges that the said Maschop has endeavored to induce the congregation to dissolve their connection with the ministerium of New York, and to form a connection with the Buffalo Synod ; that he is ar >i- trary irf the exercise of his office, and that he has withdnv m from the synod of New York, and connected himself w th the Buffalo synod ; that in consequence of the said cond ict and practices of said Maschop, the congregation, in J ily last, gave him notice that the congregation would not re- tain him as their pastor after three months from that time. They complain that he refuses to discontinue his services as such pastor, and that he intends, by the introduction of new members into the congregation, entertaining reli- gious views corresponding with his own, to wrest the said church property from the purposes to which it was devoted. 60 CASES IN CHANCEKY. Lutheran Church v. Maschop. The bill further alleges that the trustees committed the charge and custody of the church premises to one Henry W. Yanss, in order that he might prevent the said Maschop from the further use of the said church ; that the trustees applied to the sexton for the keys of the church, but he refuses to deliver them ; that the said trustees, the complainants, attempted to lock up the church, according to a vote of the board, but that two of the trustees, who are in the minority, resisted, and would not suffer the trus- tees of the church to take possession ; and that said Mas- chop and his friends threaten, that if the trustees take possession of the church property, they will forcibly re- take possession of the same. The complainants pray that the defendants may be enjoined and restrained from in- terfering with the legal posession of the said pro-perty by the complainants, or from, in any manner, preventing the complainants from taking charge of and controlling the said property, and from taking any action or measures whereby the present members of the said congregation shall be disfranchised of their right to vote, and that the said trustees may by no action of the said church be de- prived of any of their official functions and powers, and that the said trustees may have access to the books and seal of the church. This court has no right to institute an inquiry into the doctrines or mode of worship of any religious society, except such inquiry shall become absolutely necessary for the protection of trust property. If property is given to a particular denomination of Christians adhering to certain doctrines and forms of worship, and an attempt is made to pervert the property to any use, religious or otherwise, different from that to which the donor devoted it, it is the duty of the court to restore the property, and to protect.it in its original use. To do this, it frequently becomes necessary for the court to inquire into the pecu- liar tenets and doctrines of different societies claiming the property under the same trust. It is not the province FEBRUARY TERM, 1854. 61 Lutheran Church v. Maschop. of the court, in pursuing such an inquiry, to decide which doctrines are correct, but which society maintains the doctrines, to support and promulgate which the donor de- dicated the property. The doctrines and ceremonies of the Evangelical Lu- theran Church were very fully and ably discussed upon the argument ; and, on the part of the defendants, an ef- fort was made to show that the ceremonies, which the bill complains the pastor had introduced into the congre- gation, were not inconsistent with the Ausbergh Con- fession or the teaching of Luther's Smaller Catechism. After giving to the case the best consideration in my . power, I do not think it one in which the court is called to decide upon the religious belief or ceremonies of the society or of any of the individuals connected with this controversy. The complainants are in possession of the property in question. Their right to the property as trustees, under the deed, is not disputed. It is not alleged that the de- fendants claim the property adversely to them. The Rev. Mr. Maschop, as their pastor, introduced into the church certain ceremonies, which the complainants allege have a Romish tendency, and are opposed to the precepts and practices of the Evangelical Lutheran Church, to main, tain the doctrines and ceremonies of which the donor granted the property. The complainants thereupon dis- solved the connection existing between the congregation and Mr. Maschop, as their pastor, and gave him notice to discontinue his services. This, for the purposes of this ar- gument, it must be assumed, they had a right to do. The bill does not allege that the defendants question this right ; but the complaint is, that notwithstanding all this, Mr. Maschap still intrudes himself upon the congre- gation, and that he is making efforts to displace porno of the complainants as trustees. The effect of an injunction in this case will be to prohibit Mr. Maschop from intrud- ing himself into the church, and officiating there as a VOL. H. F 62 CASES EN" CHANCEKY. Lutheran Church v. Maechop. clergyman. Mr. Maschop, assuming the allegations of the bill as true, has no better right to officiate in that church than any other clergyman. This court would not, there- fore, be any more justified in issuing an injunction to prohibit Mr. Mascop's preaching in the church, than it would be to enjoin a clergyman of any other denomina- tion, who, without any pretence of right, should take upon himself to trespass upon this congregation, by en- tering their pulpit and promulgating his peculiar reli- gious doctrines. According to the bill, Mr. Maschop is a mere trespasser, without the shadow of right. This court has no more authority to enjoin such a trespasser than it has to enjoin an intrruder into another's private domicile. But the bill further alleges, that by the constitution of the church, the pastor is required to be connected with some evangelical Lutheran synod of the United States; that Mr. Maschap is not so connected, but has united him- self with the Buffalo synod. No misconduct of Mr. Maschop can justify the interference of this court. The congrega- tion have already deposed him as their pastor for such alleged misconduct. The real difficulty now is, that he will officiate in spite of such deposition. The bill further alleges, that Mr. Maschop intends to take measure to deprive such members as are opposed to him of their right to vote, and compel such members to take pews, and contribute to his support, or else to be . disfranchised of any right to vote in matters affecting the church property, and so to depose the present trustees, and thereby obtain undisputed possession of the church for his own purposes. The court is asked to interfere to prevent this. From anything that appears upon the face .of this bill, these apprehensions of the complainants are . entirely groundless. The court cannot grant an injunc- : tion to allay the fears and apprehensions of individuals ; they must show the court that the acts against which they ask protection are not only threatened, but will, in probability, be committed to their injury. How can the FEBRUARY TERM, 1854. 63 Blrdsall c. Colie. Rev. Mr. Maschop depose such members as are opposed to him, or compel members to take pews, or deprive them of their right to vote or turn out of office the present trustees ? As the pastor of the congregation, he possessed no power to accomplish any of those objects. Being dis. robed, as he is, of all such official authority and influence, it cannot well be conceived, if any such purposes are rne_ ditated, how he can effect them. If it should be answered., he may convert a majority of the congregation to the adoption of his doctrines, and by this means gain his ends, I can only say, this court has no power for any pur- pose, or under any circumstances, to prevent any indivi- dual from teaching any religious doctrine he pleases. I can see no ground to justify the interference of the court The complainants are in the full possession and enjoyment of their property. If the defendants trespass upon that possession, the complainants must redress them- selves against such trespasses in the courts of law in the ordinary mode. CITED in Cot T. Petfrs, J Beat. 42; Randall v. Uortll, 2 C. E. Or. 346; Sitgko^ner . Wtitsenborn, 5 C. E. Gr. 177; JBichardt v. Bui-man, 65 Ji. C. (Norlk Carolina. 16. JAMES II. BIBDSALL vs. JAMES "W. COLIE. Where a copartnership is not deterrainnble at will, and the court i* resorted to for the purpose, a receiver will be appointed of course The reason is, that whatever justifies the court in decreeing a dissolution, establishes the propriety of appointing a receiver. But when a partnership Is dissolved by mutual consent, or determined by the wil' of either party, a Court of Chnncpry will not, as of coarse, without any reason, ex- cept that each is the wish of one of the parties interested, assume the control of the business, and place it in the hands of a mere stranger. The court will appoint a receiver wherever it shall appear that it is necessary to do so in order to protect the interest of the prrtiea. Complainant filed his bill praying a dissolution of part- nership, an account, and receiver. The hill charges im- proper conduct on the part of the defendant, the partner. 64 CASES IN CHANCERY Blrdsall v . Colie. Defendant answered, denying all charges of improper conduct, &c. L. C. Crrover, for complainant. Runyon, for defendant. THE CHANCELLOR. The complainant asks that the part- nership existing between himself and the defendant may be dissolved by a decree of this court ; that the defendant may be decreed to account, &c., and that a receiver or re- ceivers may be appointed. The ground upon which the interference of the court is asked is misconduct on the part of the defendant in managing the partnership busi- ness. The answer is a satisfactory denial of all the charges as to misconduct, and the explanations given show an attempt on the part of the complainant to embarrass the partnership and to defraud the defendant. The impres- sion made by the bill and answer is very unfavorable to the complainant. But, on behalf of the complainant, it is insisted that he is entitled to the injunction, and to have a receiver, although the defendant may be chargeable with no mis- conduct. The terms of the copartnership were in parol, and the period of its existence not limited. It was, of course, de- terminable at the will of either party. The complainant, gave no notice of his wish to determine it, until he de- clared it by exhibiting his bill. The broad ground taken is, that where such a copartner- ship exists, either party may at any time file his bill ask- ing for a decree of dissolution ; and that, being entitled to such a decree, the injunction and receiver follow of course. The authorities relied upon are, Law v. J*brd, 2 Page 310; Martin v. Van Schaic, 4 Page 479. These cases are very briefly reported, and I do not think FEBRUARY TERM, 1854. 65 Birdsall u.*Colie. can be relied upon to sustain the principle as broadly as it is contended for on behalf of the complainant. Where the copartnership is not determinable at will, and the court is resorted to for the purpose, then it follows that a receiver will be appointed of course. The reason is, that the misconduct, or breach of trust, or the neces- sity, whatever it may be, which justifies the court in de- creeing a dissolution, establishes the propriety of appoint- ing a receiver. But that, whenever a partnership is dis- solved by mutual consent, or determined by the will of either partner, a Court of Chancery will, as of course, and without any reason, except that such is the wish of one of the parties interested, assume the control of the business, and place it in the hands of a mere stranger, appears to me a rule which, in its general application, would work great injustice, and which I am not willing to adopt. Many a solvent partnership would terminate in insolvency, if its affairs were suddenly committed to the hands of a stranger unacquainted with the intricacies of its business, the situation of its assets, and the character of its debtors. Why, of course, should an honest and com- petent man, for no other reason than to gratify the whim, caprice, or ill-nature of another, with whom he had been connected in business, be suddenly deprived of the man- agement of his affairs, and be subjected to the delay and exp.;:/* of a protracted settlement in this court ? In ** -ilaon v. Greenwood, 1 Swanston 480, Lord Eldon says, "When a partnership expires, whether by the death of the parties or by ettluxion of time, without special pro- vision as to the disposition of the property, in all these eases, to which I may add the bankruptcy of a partner, the partnership is considered, in one sense, as determined, but in a sense also as continued, that is continued till all the affairs are settled : and, as in the ordinary course of trade, if any of the partners seek to exclude another from taking that part in the concern which he is entitled to take the court will grant a receiver, so in the course of wind- 66 CASES IN CHANCEKY. BirdsaU c. Colie. ing up the affaire after the determination of the partner- ship, the court, if necessary, interposes on the same prin- ciple." The Lord Chancellor does not state the appoint- ment of receiver as a matter of course, but that the court will so interpose where there is a necessity for it. Chancellor Kent (vol. 3, 63, of his Commentaries), speak- ing of the consequences of dissolution, says, "But until the purpose of finishing the prior concerns be accom- plished, the partnership may be said to continue ; and if the object fie in danger of being defeated by the unjustifiable acts or conduct of any of the partners a court of equity will interfere, and appoint a manager or receiver to conduct and settle the business." In Harding v. Glover, 18 Yes. 281, a motion was made for a receiver after a dissolution of partnership. The re- ceiver was appointed on the ground of misconduct. But the Lord Chancellor said, " I have frequently disavowed, as a principle of this court, that a receiver is to be appoint- ed merely on the ground of a dissolution of partnership. There must be some breach of duty of a partner or of the contract of partnership." I had occasion to examine the authorities on this point in the case of Renton v. Chaplain and Carter (1 Stock. 62,) and the conclusion was, that the court ought not to assume the control of partnership affairs, unless some ne- cessity for its doing so . was made manifest. Upon the principles of that decision, the complainant is not entitled to the injunction and receiver, as prayed for. The complainant is entitled to an account; the defend- ant is at liberty, at any time during the progress of the suit, to apply for a receiver, and the court will appoint a receiver whenever it shall appear that it is necessary to do so in order to protect the interest of the par-ties. FEBRUARY TERM, 1854 67 Cole v. Potts. LEWIS COLE vs. "WILLIAM POTTS. One who enters into the possession of lands as tenant, And claims title and possession by virtue ot a subsequent parol agreement, partly carried into execution, must establish the contract, by competent proofs, to 1 e clear, definite, and unequivocal in all its terms ; and the acts upon which he relies as part p_>rfonnanee must be precise and certain, and referable exclusively to th3 contract. Payment ot the purchase money, or a part of it, is not such a part performance aa will take tbe case out of the statute. If he relies upon possession as part performance, he must show, by unequivocal proof* that th- tenacy was abandoned, and that his possession as a tenant was changed into that of a vendee, under the specific contract he is seeking to enforce. Upon filing his bill, the complainant obtained an in- junction restraining the defendant from prosecuting an action against him to recover the possession of certain premises described in the bill. The cause now came on for final hearing upon pleadings and proofs. S. R Hamilton, for complainant. M. Beasley, for defendant. THE CHANCELLOR. The foundation of the complainant's right to relief rests entirely upon the parol agreement, al- leged to have been made between Edward "W. Potts and himself, respecting the premises which are the subject -of this controversy. That agreement is stated in the bill to have been this: that Edward "W. Potts was the owner in fee simple of the premises and the complainant in possession as his tenant; that such tenancy had existed for about four years, during which time the complainant had been in the service of Potts as a tanner ; that Potts became in arrear for wages in about three hundred dollar*, which was the estimated value of the premises ; and that, in payment, and satisfaction of the arrear of wages so due and owing, 68 CASES IN CHANCEKT. Cole v. Potts. and of other good and valuable considerations him there- unto moving, he, on or about the fourth day of Septem- ber, 1830, bargained, sold, and delivered unto the com- plainant the land and premises in fee simple, and then and there put him in full possession thereof, as the owner. The bill alleges, that from that time up to exhibiting his bill of complaint, the complainant has been in possession, as the owner, has paid the taxes, and has put improvements on the premises. The answer is a full denial of the complainant's equity, and his case is not sustained by the proofs taken. The complainant relies upon a parol agreement, partly carried into execution. He must establish the contract, by competent proofs, to be clear, definite, and unequivocal in all its terms ; and the acts upon which he relies as part performance must be precise and certain, and referable exclusively to the contract. In both particulars, the com- plainant has failed. First, as to the contract. The witness relied upon to prove the contract is Abner Cole, the complainant's son. He was the only witness present at the time it was made. He says, " I recollect the time Edward Potts was prepar- ing to go to the South the last time ; it was in the fall ; it was on a Saturday night, in the office in front of the yard : my father said to Edward Potts, I would like to settle be- fore you go away ; Mr. Potts said to him, Lewis, are you going to stay on, and keep the house ; my father said to him, I don't know, sir, I don't know how we stand. He then said to my father, you have got the house near about paid for now, and you can work on till spring ; and then, in the spring, I'll be back again ; but if I never come back again, that house is yours." It is very clear this is not proof of the contract set out in the bill, and in fact it is on contract at all. It was only an offer, on the part of Mr. Potts, to sell complainant the house ; and so far from the complainant's accepting the offer, he never recalled or modified his reply, that he did not know whether he FEBEUAKY TEEM, 1854. 69 Cole v. Potts. would take the house. No price was named ; no terms were fixed; there was no agreement made, which this court can enforce under any circumstances. There are other witnesses, who certify that they heard Mr. Potts say lie had sold complainant the house ; but the nearest any of them come to any terms upon which the sale was made is, that the price was to be two hundred and forty, or two hundred and fifty dollars. Again, as to the proof of the execution of the contract upon which the complainant relies, the evidence falls very far short of proving any acts which the court can recog- nize as sufficient for that purpose. As to the payment of the purchase money, it depends upon the fact, whether there were any unsettled accounts between the complain- ant and Edward Potts, and whether Potts owed the com- plainant anything. It is not shown that they had any settlement, nor are the accounts between them exhibited. But satisfactory proof upon this point would not take the case out of the statute. Payment of the purchase money, or of a part of it, is not such a part performance as will take the case out of the statute. Story's Eq. J. 760. As to the possession. If a party relies upon possession as part performance, he must show that he enjoyed that possession under the contract. If he came in as a tenant, he must show by unequivocal proof, that the tenancy was abandoned, and that his possession as a tenant was changed into that of a vendee under the specific contract lie is seeking to enforce. In this case the bill admits that the complainant was .in possession as the tenant of Potts, and there is no proof as to how or when that ten- ancy was changed. But the proof in the cause is most satisfactory, that the complainant was not in possession as vendee. It is proved that for more than sixteen years, lie lias been the tenant of the defendant, and that during that whole period he has paid the rent. lie has ac- knowledged this tenancy in every possible way. lie lias taken receipts from time to time from the defendant, as his 70 CASES IN CHANCERY. Kearney v. Andrews. landlord. He has sent individuals to the defendant to negotiate for a purchase of the property. His property has been distrained by the defendant for rent, and sold. I cannot see that the complainant has the least claim to have his possession protected by the court. The injunc- tion must be dissolved, and the bill dismissed with costs. LAWRENCE KEARNEY and others vs. SOLOMON ANDREWS, THE INHABITANTS OF THE CITY OF PERTH AM BOY, and others. This court will not assume a jurisdiction to try the lawful election of officers and the validity of ordinances of corporate bodies upon the mere allegation that the complainants are holders of real estate in a city, and that the value of their property is directly involved in proceedings which are going on and threatened, and that the proceedings are useless, and will tend to de- preciate their property in value. The power of filling vacancies being incident to a corporation, it has the right, by its by-laws, to prescribe the manner in which such vacancies shall be filled, provided it is not inconsistent with the design of the charter. The city council of Perth A mboy have no right to elect its own members ; the law declares that the members constituting the city council shall be elected by the electors of the city by ballot. The city council cannot con- fer this authority elsewhere, nor can they usurp it themselves. The provisions in the act to incorporate the' city of Perth Amboy, that the oaths of office should be taken and subscribed within ten days after the election, is directory only, and an alderman and members duly elected did not forfeit their offices by their neglect of being sworn in within ten days after their election. An ordinance of the city of Perth Amboy r which ordained that the streets be graded and regulated, but did not specify how, nor refer to maps, profiles, or to any order or proceeding by or under the authority of the council, by which it could be ascertained how the grading was to be done, was held to in violation of the rights of the land owners in the city, and unlawful, as they could not comply with its requirements, and the act, if they did not do so within two months, deprived them of the privilege of doing it themselves. But although the ordinance is illegal, the court will not grant an injunction simply on the ground of the illegality of the ordinance. The injury must be specified, and so pointed out that the court can see it must be the inev i- table consequence of the act threatened and complained of. FEBRUARY TEEM, 1854. 71 Kearney v. Andrews. C. Parker, for motion. James S. Green, contra. THE CHANCELLOR. The object of the bill is to restrain the defendants, under certain alleged ordinances of the city council of " the Inhabitants of the City of Perth Amboy," from altering the grade of the streets and high- ways of the city of Perth Amboy, mentioned in the said ordinances ; and also to enjoin the treasurer of the city from paying to any member of the city council any money, by way of compensation for any services which they, in their official capacity, may render the said city, and to de- clare the said ordinances void. The complainants insist First, that the said ordinances are illegal, and should be held and declared void, because they were passed in vio- lation of the statute from which the corporation derives its corporate powers. The act to incorporate the City of Perth Amboy was passed the 27th of February, 1844. It repealed an old act, incorporating the said city, of 1781, except the ninth section thereof. Among other officers of the said city, the act declares there shall be a mayor, a recorder, three aldermen, and six members of common council ; that these officers shall, before they enter upon the duties of office, respectively take and subscribe the oath or affirma- tion of allegiance to this state, and an oath or affirmation that he will faithfully, impartially, and justly perform all the duties of such office, BO far as in him lies, and that such oath or affirmation shall be so taken and subscribed within ten days after the election ; that the said officers shall be elected by ballot, by the electors of the said city, on the second Monday of April annually, from among the citizens residing therein ; that the mayor, recorder, aldermen, and common council, or the major part, of whom the mayor or recorder shall be one, shall constitute 72 CASES IN CHANCERY. Kearney v. Andrews. a city council, which shall have power to meet on their own adjournments, and the whole legislative authority shall be exclusively vested therein ; provided, no ordinance or by-law be passed, altered, or repealed, without the consent of a majority of all the members thereof. It thus appears that the city council is composed of eleven members ; that all legislative authority is exclusively invested in them ; and that no ordinance or by-law can be passed, altered, or repealed, without the consent of six of the members. At the meeting at which the ordinances in question were passed, there were six members only present, the mayor, one aldermen and two members of common council, who were, it is admitted, regnlarly elected at the annual meet- ing, and sworn into office, and one Robert Freeman, who assumad'to act as an alderman, and Cornelius White, who assumed to act as a member of the common council. It is insisted that neither Freeman nor White had any right to act in their assumed capacities ; that Freeman was not an alderman, and that White was not a member of the common council ; and that, consequently, the ordinances were passed in violation of the law, which requires all or- dinances to be passed by a majority of the city council. At the annual city election, three aldermen and six members of the common council, the number designated by the charter, were duly elected.. One of the aldermen and one of the members of the common council, so elec- ted, neglected to take and subscribe the oaths or affirma- tions required within ten days after the election. The city council thereupon passed a resolution to fill these vacancies, for the reason of such neglect, on the part of the members elected, in not taking their oaths of office. Freeman and White were then elected to fill the vacancies, and were sworn into office. Their election was unlawful. There is no mode designated by the charter by which vacancies are to be supplied. The power of filling va cancies being incident to a corporation, (Angell & Ames, FEBEUAEY TERM, 1854. 73 Kearney v. Andrews. c. 83, Kyd 79 ; 2 Kent 277), it has the right, by its by-laws, to prescribe the manner in which such vacancy shall be filled, provided it is not inconsistent with the design of the charter, and does not infringe its provisions. Newling v. Francis, 3 T. R. 189. But the city council had no right to declare who should be the electors. No authority is, by the charter, given to that body to elect its own members ; and, by the common law, there is no such incident appertaining to it, as a constituted body, under the charter which cre- ates it. The law declares that the members constituting the city council shall be elected by the electors of the city by ballot. The city council cannot confer this authority elsewhere, nor can they usurp it themselves. If the power to supply vacancies is incident to this corporation, it must be exercised by the body at large. They only have the power to elect their officers when no other mode is designated." The power of election reposed in a select body may be only of certain officers ; and one class of officers may be made eligible by one select body, and another class by a different. And if it is declared by the charter by whom some officers may be elected, and no provision is made for the election of others, the others must be chosen, of course, by the body at large, by virtue of their incidental authority." Angell & Ames mi Cor. 92, and Ib. 89. " The power of electing both officers and members being inci- dent to every corporation, it is not necessary that such power should be expressly conferred by the charter. And if the power is not expressly lodged in other hands, (as, for instance, in a body of directors) it must be exercised by the company at large." " Tke power of election, or the supplying of members in the room of such as are re- moved by death or 'otherwise, is said to be a power inci- dent to and necessarily implied in every aggregate corpo- ration, from the principle of self-preservation. But it seldom happens that an opportunity is afforded for the ap- plication of this principle, because the power of election must be exercised under the modification of the charter VOL. n o. 74 CASES IK CHANCERY. Kearney v. Andrews. or statute, of which the^ corporation is the mere creature, and which usually prescribes the time and manner of corporate elections, and defines the qualifications of elec- tors." 2 Kenfs Com. 293. It does not follow that because such power to fill vacan- cies is incident to the corporation of " the Inhabitants of the City of Perth Amboy," therefore the " city coun- cil," a board of officers of that corporation, in whom certain powers of the body corporate are specifically and exclusively vested, are authorised to supply a vacancy in the office of mayor, or alderman, or member of common council, because, virtute qfficii, they compose the body of officers who are designated the " city council." I am of opinion, therefore, ,that Freeman and "White were not lawfully members of the city council. It fol- lows that the ordinances were not lawfully passed, and can- not be lawfully enforced, as they were not passed by a majority of all the members of the body, which is in direct violation of a provision of the act of incorporation. It was further insisted, that the election of Freeman and White was unlawful, for another reason, that there were no vacancies in the respective office of alderman and member of common council ; that the act, in pro- viding that the oaths of office should be taken and sub- scribed within ten days after the election, was directory- only ; and that the alderman and member duly elected did not forfeit their offices by their neclect of being sworn in within ten days after their election. The council in my judgment, are right in this con- struction. The neglect to take the oath of office did not ipso facto vacate the office. The officers elected would have been legally qualified to discharge their duties of office, had they been sworn in after the expiration of the ten days. But an officer of a corporation (unless there is some provision to the con- trary) may resign his office, or he may refuse to act ; and in either case, his office may be declared vacant, and his FEBRUARY TERM, 1854. 75 Kearney v. Andrews. place supplied. If, therefore, he is required to take an oath of office, and he neglects to do it within the time prescribed by law, while such neglect does not ipso facto vacate his office, the body of which he is a member may declare the office vacant upon the ground of his refusal or neglect to assume its responsibilities in the mode di- rected by law. But the second principal ground upon which the com- plainants rely is, that it is unlawful for the defendants to enforce these ordinances, because they establish no grade for the streets, and because no such grade was in fact established by the council, either by the ordinances or otherwise. By the tenth section of the act entitled, ; 'An act to regulate the laying out of streets and highways in the city of Perth Amboy; and the grading and improvement of the same," it is enacted, " that it shall and may be law- ful for the city council of the said city to make and esta- blish ordinances and regulations for the levelling, grading, regulating, paving, curbing, flagging, or gravelling of the streets and sidewalks of the said city ; to require the work to be done by the owner or occupants of lots front- ing or adjoining such streets, and to be superintended by a commissioner appointed for that purpose, who, under the direction of the said city council, shall prescribe the manner in which such work shall be done ; and if the owner or legal representative or guardian of the owner of any lot in front whereof the street or walk shall, by such ordinance or regulation, be directed to be levelled, paved, curved, graded, regulated, flagged or gravelled, shall neglect to comply with such ordinance or regulation witin two months after the passage and publication of the same, it shall be lawful for the city council to cause the work to be done, agreeably to the ordinance, for such person so neglecting, and to cause a particular account of the work to be rendered to them, and recorded in their minutes, and properly filed," fec. The act then provides 76 CASES IN CHANCERY. Kearney v. Andrews. the manner of notifying the owners of such lots of the amount, and of the time and place to make payment, and of selling such lots at public auction, if default be made in the payment of the sum assessed or allowed for the work done. And it gives the option to the city council, instead of selling the lots, to prosecute the owners thereof in a suit at law, and to recover the amount paid by them for the work. Upon the face of the ordinance of the 31st of August, 1853, and which is the one against which relief is sought, no grades are fixed for the streets. It is ordained that the streets to be graded and regulated, but how graded or regulated, is neither specified in the ordinance, nor, by the ordinance, is any reference made to maps, profiles, or to any order or proceedings, by or under the authority of the council, by which it can be ascertained how the grading is to be done. Indeed, it is admitted by the an swer, that at the time this ordinance was passed, no grades for any of the streets had been established, nor had any preparation been made to establish them ; and all that the city council has done since, in reference to the matter is to approve of a map which the commissioner had made, and order the same to be paid for out of the city treasury. How could any owner of a lot, in front whereof the street, by such ordinance, was directed to be graded and regulated, comply with its requirement? And yet, if he did not do the grading and the work required within two months after the passage of the ordinance, he was de- prived of the privilege of doing it himself ; a privilege, which to him might be valuable, but at all events, which the statute secured to him. To enforce this ordinance, under such circumstances, against any land owner of the city is in violation of his rights, and is unlawful. But although the ordinance is illegal, for the reasons assigned, the question remains, whether the complainants are entitled to the injunction of this court prayed for in the bill. FEBRUARY TERM, 1854. Kearney v. Andrews. This court is not the propor tribunal to determine the validity of an election of an officer of a municipal corpo- ration, nor of an ordinance of such corporation. If a par- ty's rights are invaded, and an injury threatened to his property, the court may, in a collateral way, inquire into the legality of the proceedings under color of which the injury is threatened, and may interfere for his protection, !But the injury must not be remote or contingent. It must be direct and apparent, so that the court may see the ne- cessity of interfering to prevent it. The court has no au- thority to interfere simply on the ground of the illegality of the ordinance. It may interfere to protect an indivi- dual whose property is attempted to be invaded under color of its authority. These complainants claim the protection of the court because they " are holders -of real estate in said city, and the situation and value of the property of each of them is directly involved in the said proceedings going on and threatened; and b33ause, in most cases, the proceedings going on are really useless, and will tend to depreciate their property in value." If the court can interfere on' these grounds, then the owner of land within the jurisdiction of a municipal cor- poration may qnestion, in this court, the validity of any ordinance of the corporate authorities respecting any real estate within its limits, because the value of his property may be affected by it. This would be assuming a juris- diction to try the lawful election of officers and the vali- dity of ordinances of corporate bodies upon too slight grounds. How are " the situation and value of the pro- perty of each of these complainants directly involved in these proceedings ?" The mere allegation, amounting to a speculative opinion only of these complainants, is not sufficient for the court to act upon. The injury must be specified, and so pointed out that the court can see it must be an inevitable consequence of the act threatened and complained of. The complainants do not show that 78 CASES IN CHANCEKY. Stout v. Vankirk. the land they own is situated upon any of the streets or- dered by the ordinance to be graded. They do not show that their property is invaded, or how the situation or value of their property is affected or " directly involved." They also allege that, as taxpayers of the city, they are entitled to protection ; that the ordinance being illegal, the city council cannot enforce the remedy given by the statute against the owners of property fronting on such streets as shall be graded, and that, consequently, the ex- penses will fall upon the city at large and all its taxable inhabitants. But can this court assume jurisdiction in order to protect the complainants against any such remote and uncertain injury as this ? These land owners may not refuse to do the work, or, if they should, they may not question the remedy against them. In either event, the apprehensions of the complainants will not be realized. There are some other questions involved in the plead- ings, but with the view I have taken of the points already considered, I deem it unnecessary to notice them. I would suggest, whether the corporation of " the In- habitants of Perth Amboy" is a proper party to this bill, and whether " the city council" is not a necessary party. There is no complaint made against any act of the corpo- ration. It is the proceedings of the city council that are complained of. The motion for injunction is denied with costs. CJTBD in Paret v. Bayonne, 10 Vr. 564. JACOB STOUT vs. BENJAMIN VANKIRK, ABRAHAM CBTTSEB, and others. A Judgment creditor, or his assignee, cannot, after the judgment has been paid in any way, give it vitality against the judgment debtor, and, of course, not against his creditors. The assignee takes it subject to all the equities between the original parties. Nor can the debtor himself, after he has paid the judgment, in any way revive FEBKUAKT TEEM, 1854. 79 Stout v. Vankirk. it against a bonttfide mortgage or judgment creditor, who had a lien at the time of payment, or acquired prior to the act of the debtor, by which it is sought to affect his lien. Payment by the debtor operates for the benefit, and as a release in favor of creditors having liens on the same fund bound by the judgment. S. R. Hamilton^ for complainant. M. Beasley, for defendant, A. Cruser. THE CHANCELLOR. The bill is filed for the foreclosure and sale of mortgaged premises. Tne only matter of dis- pute is between the complainant and Abraham Cruser, who sets up a judgment prior in date to the mortgage. The mortgaged premises formerly belonged to Benja- min Vankirk. While he was the owner, Samuel Terhune recovered against him the judgment in question. Subse- quent to the judgment, Vankirk executed the mortgage now held by the complainant. The mortgage was given to secure the payment of $500. It was executed by Vankirk and wife to Charles H. Stout, on the llth of May, 1846. On the next day, Charles H. Stout paid off the judgment, which was a lien on the mortgaged premises, and took an assignment of it from Samnel Terhune. The title to the mortgage and the judgment thus became united in Charles H. Stout. Charles H. Stout sold both the mortgage and judgment to the complainant for a full consideration, The mort- gage was formally assigned, by endorsement under hand and seal, and the bond was delivered with the mortgage to the complainant. There was no assignment of the judgment. The reason given by Charles H. Stout, why it was not assigned, is that the squire did not know how to draw the assignment. But, he says, it was "paid," by him, over to his brother, with the bond and mortgage. The proof is very satisfactory that the complainant was the bonafde owner of both the bond and the mortgage, and that he paid for them the full amount due upon them. 80 CASES IN CHANCERY Stout v. Vankirk. The bond, the mortgage, and the assignment of the judg- ment from Terhune to Charles H. Stout were all in the possession of the complainant, as the evidences of his ownership. In March, 1849, Benjamin Yankirk and Theodore H. Reed agreed to exchange some land between them, but the judgment held by complainant being a lien upon Vankirk's property, he could not give a clear title. It was agreed that the judgment should be satisfied by Reed's conveying his lot to Jacob Stout. In conformity to this arrangement, Yankirk and wife conveyed his lot to Theodore H. Reed ; Reed conveyed his lot to Jacob Stout, the complainant, and Charles H. Stout, instead of cancelling the judgment, released to Reed the premises conveyed to him. The next we find of the formal assign- ment of the judgment executed by Terhune to Charles H. Stout (and which assignment all the parties seemed to regard as a kind of title deed) is in the hands of Benja- min Yankirk, the judgment debtor. All these facts are very satisfactorily proved, and the whole evidence esta- blishes, beyond a question, that the debtor paid the judg- ment in the exchange between himself and Reed. Subsequent to this, Charles H. Stout, by his assignment under his hand and seal, assigned the judgment to Abra- ham Cruser, who now sets it up, and claims priority over the complainant's mortgage. A judgment creditor, or his assignee, cannot, after the judgment has been paid in any way, give it vitality against the judgment debtor, and, of course, not against his creditors. The assignee takes it subject to all the equi- ties between the original parties. If, then, Charles II. Stout had assigned the judgment to Cruser, and received from him the consideration, it would have been a fraud on the part of Stout. The sufferer would be Cruser, and not the debtor or any other third innocent party. Nor can the debtor himself, after he has paid the judg ment, in any way revive it against a bona fide mortgage FEBRUARY TERM, 1854. 81 Stout v. Vankirk. or judgment creditor, who had a lien at the time of pay- ment, or acquired prior to the act of the debtor, by which it is sought to affect his lien. Payment by the debtor operates for the benefit, and as a release in favor of creditors having liens on the same fund bound by the judgment. Bolles v. Wade and others, 3 Gr. 458. Whether, therefore, Cruser purchased the judgment of Charles H. Stout or of Benjamen Vankirk, can make no difference, as far as the rights of the complainants are con- cerned. In neither case can the judgment be interposed to affect his mortgage. But, in justice to Charles H. Stout, the case ought not to be left here. The evidence shows that no fraud is to be imputed to him, and that if Cruser is a sufferer, he has no one to blame but himself and Benjamin Vankirk. Charles H. Stout did not receive one farthing for the assignment. Cruser does not pretend, in his answer, that he paid the money to Stout. He alleges he paid the money to Vankirk, who delivered to him the assignment. If the statement of the transaction in the answer is true, Vankirk obtained the money from Cruser through fraud and false pretences. Mr. Cruser cannot be regarded as en- tirely innocent in the transaction. Both the Stouts were within his call. If he had have made application to either of them, as he was bound to do, he would not have be- come involved in the difficulty. He chose to rely upon the assurances of Vankirk, and he must submit to the consequences. It is true Vankirk produced an assign- ment from Stout to Cruser, which, on the face of it, was an assurance, upon Stout's part, that everything was correct. But Vankirk acted as Stout's agent in procuring that as- signment. The evidence shows he procured it fraudu- lently. It is right, therefore, as between these parties, that Cruser should be the sufferer. The complainant's mortgage is entitled to priority over the judgment. If there are no other creditors whom rights are affected, an account may be taken on the judg- 82 CASES IN CHANCEKY. Flagg v. EonnoL ment. As Cruser paid the money to Yankirk, it is equit- able that, as between them, the judgment should stand as valid. WILLIAM FLAGG et al., executors of Isaac Y. Yandoren, vs. SETH BONNEL and others. If the defendant interposes a plea in bar to the whole bill, and the complain- ant does not reply, but is disposed to question its validity, instead of the complainants demurring to it, the defendant must set it down for argu- ment, and this answers to the demurrer at law. If the plea should be decided not to be good, the defendant must answer the bill ; if it is sus- tained, the complainant must reply to it. When he does reply and takes issue, the determination of that issue is final The bill alleges that James Price, William Flagg, and Henry M. Price were partners in trade, and became em- barrassed in their business; that James Price was seized in fee of valuable real estate in New Brunswick, and that, without any consideration therefor, he conveyed it to Seth Bonnel, one of the defendants, to the end, and with the intent and purpose, to hinder, delay, and defraud the creditors of the said James Price and of the said partner- ship; that several judgments, for large amounts, were recovered against the said partners, and executions issued thereon, and returns made of no goods or lands to satisfy the same ; that the said judgments were assigned to Isaac V. Yandoren, the complainants' testator, and are still un- satisfied. The bill prays that the said deed may be de- clared fraudulent and void, and be set aside, as against the said judgments, and that -the defendant, Seth Bonnel, may make a full discovery, . Gummere, for defendant, Redmond. 116 CASES IN CHANCERY. McKelway r. Armour. M. Beasley for defendant. Armour Jos. S. Green, for defendant, Mrs. Harrison. THE CHANCELLOR. The facts of this case will be found in 4: Hoist. Ch. JR. 322, Potts v. Armour, reported by mis- take as Potts v. Arnow. That bill was filed for a different purpose from that of the present one. The decision, how- ever, involved the same equities as exist here. That bill was dismissed, for want of prosecution, upon the failure of the complainant to amend his bill, the Chancellor having decided that to be ne'cessary, although this does not appear in the case as reported. The object of the present bill is to relieve the com- plainant from the embarrassment of having erected a valu- able dwelling house, by mistake, on the land of the de- fendant, Armour. The prayer of the bill is, that the deed from Redmond to Armour may be so reformed as to ex- clude the lot upon which the complainant has erected his buildings, and so as to embrace a lot of the same dimen- sions adjacent thereto, which, it is alleged, was intended by both grantor and grantee, as the lot to be conveyed, or that Armour may be decreed to take the improvements upon equitable terms. If the mistake was in the deed from Redmond to Ar- mour, the court has power to correct the mistake ; and parol evidence is admissible for the purpose of showing the mistake. It forms one of the exceptions to the gene- ral rule, which excludes parol evidence offered to vary a written contract. It will be perceived, by the Chancellor's opinion in 4 H. O. R. 323, that he considered the evidence before him as satisfactorily establishing the mistake to be in the deed from Redmond to Armour. If I could reach the same conclusion from the evidence, I should have no hesita- tion in adjusting the equities of the parties according to the principles laid down by him in that case. Redmond's FEBKUAEY TERM, 1854. 11? McKelway v. Armour. testimony does prove the mistake to have been there be- yond a doubt. But Redmond is not a competent witness. Both the complainant and Armour hold under Redmond's warranty. Redmond first conveyed the lot to Armour, and wan-anted the title. Afterwards, with like warranty, Redmond conveyed to Cook, through whom the com- plainant derived his title. If, by this suit, the first deed is so reformed as to convey a different lot of land, it re- lieves Redmond from the consequences of having war- ranted to Cook title to the same lands, which before he had conveyed to Armour. If the complainant succeeds in this suit, it relieves Redmond from his warranty ; if the complainant fails, then Redmond must respond to Cook, or to the complainant, who holds under him, for a breach of warranty. His interest is not balanced. He will be di- roctly benefitted by the complainant's success in this suit. Sotting aside the testimony of Redmond, I cannot say that the evidence is sufficient to establish the mistake to have been in the deed to Armour. Armour denies it in his answer. He declares that he purchased the very lots which Redmond conveyed to him, and that there was no mistake. There is no positive evidence to conflict with this statement in Armour's answer. The complainant re- lies upon circumstances, but they are susceptible of an interpretation quite as consistent with another hypothesis. But it is proved, beyond all doubt, that the complainant erected his improvements on this lot by mistake: he sup- l>osed that it was the lot next that belonged to Armour. Armour labored under the same mistake. He lived in the vicinity ; he saw the complainant progressing, from day to day, witli these improvements. If he knew this to be his lot, his silence was a fraud upon the complainant ; but this is not pretended. He admits that lie did not suspect the erections to be upon his lot, until some time after their erection, when by actual measurement, to his sur- prise, he discovered the mistake. Under such circum- stances, it would be most unjust to permit Armour to 118 CASES IN CHANCERY. McKelway v. Armour. take these improvements, and to send the complainant away remediless. It is very true, as was urged upon the argument, the com- plainant is the most to blame in this matter. A diligent examination of the deed to Armour, and an actual measure- ment of the land, would have decided the difficulty. But it was a vacant lot of land, plotted out upon a map only, and the mistake was one which might occur to the most careful and diligent man. The fact of Armour's standing by, and participating in the mistake, is an important feature in the case. In adjusting the equities of the parties, a decree should be made, which, while it relieves the complainant, must put Armour to as little inconvenience as possible. I have concluded, therefore, to offer Armour the privi- lege of taking the improvements at a value to be ascertained upon equitable principles by a master ; or, if he prefers it, to order a reference to a master to ascertain the value of the lot, and to decree a release to the complainant upon his paying the valuation. Twenty days will be allowed Armour to make his selection of these offers, if he desires it. Should he decline selecting either of them within the time limited, I shall order a decree to the following effect : that Red- mond convey to Armour lot No. 32 free and clear of all encumbrances, and that Armour release to complainant lot No. 34. As between the complainant and Armour, this will be just and equitable, for it appears, by the evidence, that lot 32 is more valuable than lot 34. As to Redmond, he admits this to be correct, and agreeable to his original intention, and tenders himself ready to do this. As to Mrs. Harrison's mortgage, I cannot put her to any hazard. I will decree her mortgage to be a lien on lots 32 and 33, but ( lot 34 must stand to make good any deficiency. CITED in Durant v. Bacot, 2 Beas. 20. FEBEUAEY TEEM, 1854. 119 Blair v. Ward. JOHN I. BLAIB and JAMES BLAIB vs. SAEAH WABD, THOMAS COOK, et al. Sarah Ward executed two bonds to her son J. L. Ward, and at the same time a mortgage to secure the same on three tracts of land. Ward, on 1st De- cember, 1847, assigned these bonds to complainants, and on the same day executed and delivered to complainants, as collateral security, a mortgage on three tracts of land. This mortgage included the land in the Sarah Ward mortgage, together with some other land. All the said lands had descended to J. L. W., as the heir of his father. The land included in the Sarah Ward mortgage had been conveyed to her by J. L. W., and a mort- gage given to secure the purchase money. Complainants find on the re- cord a deed made by J. L. W. to Thomas Cook, embracing a portion of the land embraced by the collateral mortgage ; but this deed was not recorded until the 18th of January, 1848, whereas the mortgage to complainants was recorded on 9th December, 1847. Defendants insisted that complainants had notice of conveyance to Cook at the time of the execution of their mortgage, and relied on the testimony of John L. Ward, one of the de- fendants, who was examined, subject to exception. Held, that there being no question as to Cook's having lost his priority by any mere neglect on his part to record his deed with proper diligence, that Ward was interested in the event of the suit, and was therefore not a competent witness. Where a mortgagee has released lands, primarily liable for his debt, to the prejudice of another mortgagee, who has a lien upon a part only of the lands embraced in the first mortgage, the court may prevent the first mort- gagee from enforcing his mortgage upon the portion of the land common to both mortgages until he deducts from his debt the value of the land re- leased. But the mortgagee will not be liable to such consequences, unless he has knowingly and wrongfully prejudiced the rights of the other mort- gagee. He must have knowledge of the other mortgagees' rights. If he releases without notice, he is not to be a sufferer. If the other mortgagee wishes to protect himself, he must give notice of his rights. The statute does not make the record notice for any suoh purpose. The bill alleges that, on the 15th day of November, 1847, Sarah Ward executed her two bonds, one of $1500 and one of $1000, to her son, J. L. Ward, and at the same time a mortgage to secure the same on three tracts of land 1st, of 10 acres, 2d, of 2 acres, and 3d, of 10 acres, and that, on the 1st December, 1847, the said J. L. W. assigned the said bonds, the one of $1500 to John I. Blair, and the other of $1000 to James Blair, and the said mort- 120 CASES IN CHANCERY. Blair v. "Ward. gage to J. I. B. and J. B. to secure them $2500, which on that day they had advanced to J. L. W. ; that, on the , same day J. L. W., executed and delivered to the com- plainants, as collateral security, and to secure any defi- ciency upon the two bonds by the nonpayment of the same, a mortgage of $2500 on three tracts of land 1st, lot of 4 acres, 2d, lot of 20 acres, and 3d, lot of 1 acre ; that the collateral mortgage includes the land in the Sa- rah Ward mortgage, together with some other land. All the said lands had descended to J. L. W., as the heir of his father. The land included in the Sarah Ward mort- gage had been conveyed to her by J. L. W., and the mortgage of $2500 given to secure the purchase money. The bill further alleges, that Daniel Crane held a mort- gage of $2000, dated July 15, 1846, given to him by Icha- bod B. Ward, the father of J. L. W., and which covers the 1st and 2d lots in Sarah Ward's mortgage and the 1st and 2d lots in the collateral mortgage. The bill further alleges, that the complainants find on the record a deed made by J. L. W., to Thomas .Cook, em- bracing the 1st and 2d lots in the collateral mortgage ; but that this deed was not recorded until the 18th of January, 1848, whereas the said mortgage to J. I. B. and J. B. was recorded on the 9th of December, 1847 ; that the complainants had no notice of the deed to Cook, and they insist it is void, as against their said mortgage. The bill further states, that on the 23d December, 1847, Daniel Crane released to Thomas Cook the lot conveyed to him, and insists that if T. Cook's conveyance is valid as against their collateral mortgage, then that Daniel Crane must be postponed on his mortgage, to the Sarah Ward mortgage, to the amount of the value of the lot released. Sarah L. Ward and Thomas Cook separately answered the bill, and the principal defence set up is, that the Blairs had notice of the conveyance to Cook. A. Whitehead, for complainants. FEBKUAKY TEEM, 1854. 121 Blair v. Ward. D. A. Ha/yes, for Daniel Crane. F. T. Frdinghusen, for Thomas Cook. The Chancellor. There are two important questions involved in this controversy. First. Is the conveyance to Thomas Cook void and of no effect as against the mortgage executed by John L. Ward to the complainants ? Second. If that conveyance is not void as against the mortgage, must Daniel Crane's mortgage of $2000 be postponed in payment to the Sarah Ward mortgage as- signed to the complainants, to an amount the value of the premises which Daniel Crane released from his mort- gage ? As to the first question. Thomas Cook's deed bears date, and was acknowledged, prior to the date and ac- knowledgement of the complainant's mortgage, but was not recorded until more than six weeks after the mort- gage was placed on record. By the record, then, the deed, as declared by the statute, is void and of no effect as against the mortgage. But the defendants insist that the complainants had notice of the conveyance to Cook at the time of the execution of their mortgage, and this is the controverted point between the parties. To establish this fact, the defendants rely upon the testimony of John L. Ward. lie is the only witness that testifies upon this point. lie is a defendant in the suit, and was examined under an order of the court, subject to any exception that might be taken at the hearing. The complainants interpose the objection to his evi- dence, that he is not a competent witness on account of interest. In looking into the competency of this witness, it is proper to remark, that there is no question between the parties as to Cook's having lost his priority in conse- quence of any mere neglect on his part to record his deed VOL. ii. L 122 CASES IN CHANCERY. Blair v. Ward. with proper diligence. When Ward executed the mort- gage to the complainants, the contract between Ward and Cook was not completed. Cook had not the control of his deed, so as to have it in his power to record it until after the execution of the mortgage. If Ward when he executed the mortgage to the complainants, did not no- tify them of the deed he had executed to Cook, he com- mitted a fraud in executing the mortgage, and that fraud operated to the injury of Cook. If he did notify the complainants, then their lien is subject to Cook's convey- ance. Under these circumstances, is Ward interested in the event of this suit ? If the complainant's mortgage is established as a lien upon the premises embraced in Cook's deed, then Ward is liable upon his warranty to Cook. But if the complainants are not successful, Ward is not in any way legally responsible to them. They have got his mortgage, but it is without covenants. It is only as collateral, and to secure any deficiency in the payment of Sarah Ward's bonds. John L. Ward is not personally liable for any such deficiency. He did not guaranty the bonds. It is thus apparent that it is Ward's interest to defeat the complainants in this suit, for if they recover, it involves him in a pecuniary loss. My opinion is there- fore, that Ward is interested in the event of this suit, and is not a competent witness. I regret this conclusion, be- cause my mind was perfectly satisfied from the evidence of Cook, corroborated by circumstances confirming his evidence, that the complainants had such notice of Cook's conveyance, that they should not be permitted to enforce their lien against the premises embraced in his deed. But satisfied, as I am, of Ward's incompetency as a witness, I have no option as to the admission of his testimony. However much I may regret the effect in this case, a plain rule of law compels me to reject the evidence of the witness. But the counsel of Thomas Cook insisted that the FEBEUAEY TERM, 1854. 123 Blair r. Ward.. equities existing between these parties are such, that the court ought not to permit the complainants to enforce their mortgage against the property conveyed to Cook ; that the consideration money paid by Cook was appropriated to the payment of liens having priority over the complainant's mortgage, and of which the complainants had notice, and subject to which they took their mortgage ; that the com- plainant ought not to have the benefit of Cook's money in paying off prior encumbrances, and be permitted to take the land, also, to pay off their own. The facts proved are not such as to give to the defendant, Cook, the benefit of the argument. It is rather singular that Cook did not frame his answer with a view of deriving the full benefit of this feature of his case, if the facts would sustain him. I have no doubt, from what is before me, that Cook might have put in a defence, and proved it, so as to have secured the full benefit of this argument. But, in his answer, he neither states how he paid the purchase money, nor for what purpose it was appropriated. Daniel Crane holds a mortgage originally executed to secure the payment of $2000. The consideration of it was for money loaned to Ichabod C. Ward, the father of Thomas L. Ward. At the time of its execution, the title to all the land in question was in Ichabod C. Ward. The complainants admit, in their bill, that they knew of the Crane mortgage, and took their mortgage subject to that encumbrance. The purchase money agreed to be paid by Cook, for the land conveyed to him, was $1108.18. He paid in cash $608.18, and for the balance, $500, he exe- cuted his bond to Daniel Crane, and, to secure it, gave a mortgage upon the land. As to this $500, the equities between the parties are very plain. The court would never permit the complainants to foreclose their mort- gage under such circumstances, and leave Cook to pay his bond to Crane, and thus allow the complainants the benefit of that payment. Crane has credited this $500 on his bond and mortgage, and, in consideration of it, he 124 CASES IN CHANCERY. Blair t>. Ward. executed a deed of release to Cook. The complainants are not entitled to the benefit of this release. Daniel Crane's mortgage must stand for its full amount for his own benefit, as well as for the relief of Thomas Cook. This is equitable. The complainants have no right to complain of it, for they took their mortgage subject to the $2000 mortgage. This matter is entirely within the control of the court, and they will adjust the equities between the parties. The com- plainants claim the land as their own. To compel Cook to pay the purchase money, and then give the complainants the land, would be unjust, and in violation of every prin- ciple of equity. As to the $608.18, the cause was argued upon the as- sumption that this money was appropriated to pay off the debts of Ichabod C. "Ward, which were a lien upon the mortgaged premises entitled to priority over the com- plainants' mortgage. It was insisted that to this amount Cook should be substituted in the place of those cred- itors. Independent of the consideration, whether the pleadings are so framed as to justify the court in making a decree in conformity with this view, it is sufficient to say, that there is no evidence to show that there were any such debts which were a lien upon the premises. And, besides, it is not shown that the money was appropriated for such purpose. Zenas S. Crane, the only witness who testified touching the payment of the money, says that he counted the money in the presence of Thomas L. "Ward and Timothy "Ward, the administrator, and that it was paid to one of them. The presumption is, that the money was paid to Thomas L. "Ward, and there is no evidence to rebut this presumption. I am of opimon, therefore, that the conveyance to Cook is subject to the complainant's mort- gage ; but that the mortgage of Daniel Crane must stand for its full amount, so as to relieve Cook from the payment of his bond of five hundred dollars, which is held against him by Daniel Crane. If the view I have taken is correct, then the question FEBEUARY TERM, 1854 125 Blair v. Ward. as to the effect of Daniel Crane's release, as between him- self and the complainants, is of no moment. But as this question was very fully discussed upon the argument, and the parties may see proper to take the opinion of another court upon the case, it may be more satisfactory that I should give my judgment on this question. Upon the assumption that Cook's deed is valid as against the complainants' mortgage, Daniel Crane's mort- gage covering not only the other lands embraced in the complainants' mortgage, but the premises conveyed to Cook, it is insisted that, according to the equities existing between these mortgagees, the complainants have a right to throw Crane's mortgage upon Cook's land, before Crane can resort for payment to the land which is common to both mortgages; and that Crane, having voluntarily re- leased the land, which was exclusive as to his mortgage, he has thus disturbed the equities existing between the parties, and, as a consequence, must be postponed to the value of the land released. The general principle is not denied, that if A, as the owner of 100 acres of land, mortgages all of it to B., and subsequently 50 acres of it to C., A will be compelled, by a court of equity, to resort to the 50 acres not em- braced in C's mortgage before he can have recourse to the land common to both mortgages. This principle of equity is not confined to the original owner and his im- mediate grantees, but is applicable to all future aliena- tions of the land, as long as it can be applied, without in- jury or manifest injustice, to any of the parties in interest. It follows, that if any of the parties wrongfully disturb these equities, so as to deprive another of his just rights, it is a wrong which he cannot commit with impunity ; and a Court of Chancery will adjust the equities between the parties, whenever it attains jurisdiction so as to enable it to do so. But this is a principle of equity to be applied as each case arises, according to its circumstances, and for the purpose of doing equity between the parties. It is not 126 CASES IN CHAtfCEKY. Blair v. Ward. an inflexible rule of law, which a party has a right to ask may be applied without regard to the circumstances of the case or its consequences upon third parties. The court will never put in jeopardy the interest of the first encum- brancer by applying this principle. It will refuse to do so where it can be seen that such will be Us effect. Where a mortgagee has released land primarily liable for his debt, to the prejudice of another mortgagee, who has a lien upon part only of the lands embraced in the first mortgage, the court may prevent the first mortgagee from enforcing his mortgage upon the portion of the lands common to both mortgages until he deducts from his debt the value of the land released. But the mortgagee will not be liable to such consequences, unless he has knowingly and wrongfully prejudiced the rights of the other mortgagee. He must have knowledge of the other mortgagee's rights. If he releases without notice, he is not to be a sufferer. If the other mortgagee wishes to protect himself, he must give notice of his rights. The counsel of the complainants insisted that the record fur- nished him with such notice. But the statute does not make the record notice for any such purpose, nor is it rea- sonable that it should be noticed. If this is so, every mort- gagee, before he takes a step to secure his own rights, must resort to a search of the record to ascertain how his act will affect the rights and interest of others. I can find no case going to this extent. In Guion and others v. Knapp and others, 6 Paige 43, the Chancellor says, the conscience of the party who holds the encumbrance is not affected, unless he is informed of the existence of the facts upon which this equitable right depends ; or he has a sufficient notice of the probable existence of the right to make it 'his duty to inquire, for the purpose of ascertaining whe- ther such equitable right does in fact exist. If, therefore the prior purchasers are so negligent as to leave the holdei of the encumbrance to deal with the mortgagor, or with a subsequent grantee of a portion of the premises, undei FEBRUARY TERM, 1854. 127 Blair . Ward. the erroneous supposition that the lands conveyed to the prior purchasers still belongs to the mortgager, the mort- gagee will not lose his lien by executing a release to one who happens to be a subsequent grantee. In the case of CJieesebormtgh v. MUlard 1 J. C. R. 414, where a judgment creditor claimed this equity against a mortgagee who had released, Chancellor Kent says the mortgagees were not hound to search for the judgment, and the record was no constructive notice to them ; and as this rule of substitu- tion rests on the basis of mere equity and benevolence the creditor who has thus disabled himself from making it is not to be injured thereby, provided he acted without knowledge of the other's rights, and with good faith and just intention, which is all that equity in such case re- quires. In the present case, the bill does not charge that Daniel Crane had notice of the complainant's mortgage. The circumstances attending the transaction in regard to his release were not such as to put any prudent man upon inquiry to ascertain whether there were subsequent en- cumbrancers, whose rights would be prejudiced by his re- lease. On the contrary, they were such as would reason- ably lead him to the conclusion that no one could be pre- judicially affected by his act. I do not think that the re- lease should operate in any manner, to the embarrassment or injury of Daniel Crane's rights under his mortgage. Let there be a reference to a master, to take an account of what is due on Daniel Crane's mortgage, without de- ducting the 500 bond and mortgage credited as a pay- ment on his bond ; and also to take an account of the amount due on the complainant's mortgage. And let the decree be so drawn as to sell the land conveyed to Cook, to make up any deficiency after the sale of the other lands embraced in the mortgages. CITED m Vanorden v. Johnson, 1 3/cCar, 878 ; Hoy v. Bramhall, 4 C. S. Or. 571; Ward's Exr's. v. Hvyve, 10 C. E. Gr. 3U8 ; Hilis Admr'*, v. McCarter, 12 C. E. Or. 47. CASES ADJUDGED EC THE COURT OF CHANCERY OF THE STATE OF NEW JERSEY, MAY TEEM, 1854. SAMUEL S. HAKTWELL vs. ALBEKT CAMMAN and others. A deed may convey a distinct inheritance in mines, the fee to the land remain- ing in the grantor. When not severed from the general title to the lands, they will pass with the lands without being expressly mentioned in the deed. Construction of a deed conveying mines and minerals, and the respective rights of grantor and grantee. By a conveyance of "mines and minerals" the grant does not embrace any- thing in the mineral kingdom, as distinguished from what belongs to the ani- mal and vegetable ; nor is such a grant confined to any one of the subordi- nate divisions into which the mineral kingdom is subdivided by chemists. Where a term of art is used which has a popular signification among scientific men,.paro testimony is admissible to ascertain the technical and proper use of the term, but such testimony is not admissible to show that the parties to the writing placed upon the term used any limited or definite mean- ing. When parol testimony admissible to dispel a doubt upon the true sense and meaning of the words. Broom's Maxims. Parol testimony sometimes admitted ex necessitate, and when the ambiguity in an instrument is created by extrinsic evidence, it may be removed by the same. Apaint stone, which is found in strata below the surface of the soil, and dis- tinct from the ordinary earth, and worked by the ordinary means of min- ing, will pass under the terms mines and minerals. MAY TEEM, 1854. 129 Hartwell v. Camman. The bill alleges, that one Thomas A. Hartwell did, by deed dated on the 2d of February, 1846, convey to Albert Camman certain mining rights and interest in certain pre- mises in said deed described, and that T. A. H., on the 23d of June, 1847, by deed of that date, did sell and convey to the complainant and to his heirs and assigns for ever the same tract of land with full warranty, excepting out of the same the right of mining so conveyed to the said A. C.; that previous to this conveyance, there had been many ex- periments made for copper ore, supposed to abound in the premises ; that shafts had been sunk and worked for cop- per ore within a few hundred yards, and that no other mineral had been sought for on the said premises ; that the said conveyance from T. A. H. to A. C. was made in contemplation of, and with reference to the character of the range of hills as a deposit of copper ore ; that in the latter part of the year 1850, the said A. C. discovered upon the surface, and just below it, a hard substance like red shale ; that he had it analyzed, and in December, 1851, commenced digging and excavating said substance, and grinding the same into paint, and disposing of the same ; that said C. procured the stock of a company, called the South Branch Mining Company, and, on the 17th of Sep- tember, 1851, conveyed to the said company all his mining rights in the premises aforesaid, and afterwards obtained from the legislature a change of the name of the said com- pany to that of " the President and Directors of the Bridge- water Paint Manufacturing Company "; that the said com- pany have dug out, and ground into paint, and sold large quantities of the same, and threaten to continue said operations. The prayer is, that the said defendants may bo restrained by injunction from digging and removing from off the said premiies the said stone from which paint is manufactured, or for any other purpose, save in such in- considerable quantities as might be necessary and inci- dental to ordinary mining for ores and minerals, usually and properly so called ; and that they may be distrained 130 CASES IN CHANCERY. Hartwell v. Camman. from disfiguring and destroying the surface of the said premises to any greater extent than would be proper and necessary in mining for such minerals and ores. To this bill, the defendants filed a joint and several answer. The principal allegations of the bill are admitted, except that Camman denies that at the time of his pur- chase he had in contemplation copper ore only, or any particular mineral. And the answer insists that this paint stone is a mineral within the meaning of the term, as it is used in the deed. The answer further alleges, that the excavating of this material has been carried on with the consent of the complainant ; that he aided in the organ- ization of the company, and became an original stock- holder to the amount of fifty shares, which stock he still retains. On filing the bill, a temporary injunction was granted by the master, which was dissolved upon the coming in of the answer on motion. Both parties having taken their proof, the cause came up for final hearing. Gorton and W. L. Dayton, for complainant. G. II. Brown and J. S. JVevius, for defendants. THE CHANCELLOR. As to the construction of the deed from Thomas A. Hartwell to Alfred Camman, in refer- ence to the interest which passed to the grantee, I have no doubt it was intended to convey to Camman an estate of inheritance in the mines. The words used are appro- priate to the conveyance of such an estate, and such is the legal construction to be put upon the instrument. Such an estate in Camman is not inconsistent with the general title to the lands in which the mines are situated remaining in Hartwell, the grantor. The mines may form a distinct possession, or inheritance, from the lands. They are capable of living, and of being made the subject of MAY TEEM, 1854. 131 Hartwell v. Camman. ejectment. Comyn v. Kyneto, Cro. Jac. 150 ; Barnes v. Mawson, 1 Maul and S. 77. When not thus severed from the general title of the lands in which they are situate, they are part of the lands or demesnes themselves, and will pass with the lands, without being expressly men- tioned in the conveyance. The deed under consideration is in the usual form of a deed of bargain and sale. Tn the premises of the deed, the language of the grant, and description of the thing granted, is "doth give, grant, bargain, sell, and convey, unto the said party of the sec- ond part, his heirs and assigns for ever, the right, title, and interest in and to all mines and minerals opened, or to be opened, with free ingress and egress to the same for the purpose of mining in all its various branches, of, in, and to the following described tract of land," &c. The language of the habendum and tenendum is as follows : " To have and to hold all and singulai the interests, rights, and privilege of mining in and to the said lands and prem- ises unto him, the said Albert Camman, his heirs and assigns for ever." Then the covenants, that the grantor is the rightful owner ; that the premises are unencum- bered ; that the grantor hath full power to grant, and that he will warrant and defend. Then follows this ex- planation or qualification : " This agreement and this con- veyance is upon this condition, that the said second party is not to have any right or privilege to said premises, other than for general mining purposes ; that neither said second party, his heirs or assigns, shall cut, damage, or destroy any wood or timber on said premises, except it shall be actually necessary so to do for mining purposes, and in that case to pay a reasonable compensation to the said party of the first part, his heirs and assigns, for tho same." This condition, as it is called, neither contradicts, or is it repugnant to the estate before granted. The estate was clearly one of fee simple in the mines. The condi- tion neither lessened, enlarged, or qualified that estate. It was nothing more than a further expression of tho 132 CASES IN CHANCERY. Hartwell v. Caminan. intention of the parties, that nothing was intended to pass by the deed except the " mines and minerals," and that the general title to the lands remained in the grantor. Albert Caminan subsequently conveyed the estate which he took in the mines and minerals to the defend- ants, " the President and Directors of the Bridgewater Paint Manufacturing Company," and they are now en- titled to the enjoyment and to all the benefits of that estate. If such be the correct construction of the deed, then the position taken by the defendants' counsel, that Thomas A. Hartwell retained no further or other interest in the land except that reserved to him as to the wood and tim- ber, and that he, or his assignee, has no right to carry away from off the land for his own benefit, this substance which has given rise to this controversy, even if it is not embraced, in what was conveyed to Camman, cannot be maintained. Camman took the estate in all the mines and minerals, and has a right to the possession of them and to their enjoyment, and to anything necessary and incidental to that enjoyment. The title to the lands where those " mines and minerals " are found remained in Hartwell, and he and his assignee are entitled to the enjoyment of everything else appertaining to those lands except the " mines and minerals." If the material, then, which the defendants are carrying away, and converting to their own use, is a " mineral " which passed by the deed, the complainant cannot interfere with the right of ownership which the defendants are exercising. If it is not a " min- eral," in the sense intended by the parties, then the com- plainant has rightfully invoked the aid of this court, and he himself is entitled to the enjoyment of the material, and may enter upon the land, and collect and convert the material in it to his own exclusive use. Did this material pass with the estate conveyed to Camman ? If it is embraced within the terms " mines and minerals " it did, otherwise it did not. MAY TEEM, 1854. 133 Hartwell v. Camman. I admit that I have experienced very great embarrass- ment in giving an answer to this question satisfactory to myself. Perplexed with doubts, I found I could only ex- tricate myself from difficulty by making most of the maxim, " The words of an instrument shall be taken most strongly against the party employing them." Co. Litt. 36, a. By the use of the terms " mines and minerals," it is clear the grantor did not intend to include everything embraced in the mineral kingdom, as distinguished from what be- longs to the animal and vegetable kingdoms. If he did, he parted with the soil itself. Such a construction would be inconsistent with, and repugnant to the whole tenor of the grant. Nor can I see any more propriety in confining the meaning of the terms used to any one of the subordi- nate divisions into which the mineral kingdom has been subdivided by chemists, either earthly, metallic, saline, or bituminous minerals. By his bill, to complainant en- deavors to confine the terms to a more restricted sense, or definition, than either one of these subordinates ; for he claims a construction should be put upon the words, by the aid of circumstances surrounding the parties, and re- lating to the subject matter of the grant at the time the grant was made ; and by a construction thus derived, he confines the terms not to the metallic* ores, but, more lim- ited still, to copper ore alone. As to the extent to which parol testimony is admissible in giving an interpretation, or proper definition, to the words used here, I have no difficulty. Where a tenn of art is employed, or a word connected with some depart- ment of the natural world, which has become technical and popular in its use among scientific men and men of letters, a court, when called upon to give a construction to such words, may avail itself of parol testimony to as- certain the technical and popular use of the word. But parol testimony is not admissible, under any circum- stances, to show that the parties to an instrument of writ- VOT. u. M 134 CASES IN CHANCEKY. Hartwell v. Camman. ing under seal placed upon a particular word or phrase ology which controls the whole effect and value of the writing, any limited or definite meaning for the purposes of that particular instrument. Where the construction depends upon the definition to be given to any particular words, and there is an ambiguity created from the man- ner of their use, and in such use the words cannot be said to have any popular or technical scientific moaning, or the learned differ as to such meaning, then the only re- course left is to adot>t the next most comprehensive mean- ing not excluded by the expressed or plain intention of the parties. This is a salutary mode of construction, for, as Mr. J. Blackstone remarks, the principal of self-preser- vation will make men sufficiently careful not to prejudice their own interest by the too extensive meaning of their words, and hereby all manner of deceit in any grant is avoided ; for men would always affect ambiguous and in- tricate expressions, provided they were afterwards at liberty to put their own construction upon them. 2 Bid. Com. 380. No extrinsic evidence is admissible for the pur- pose of showing that the grantor intended to confine the words " mines and minerals " to copper ore only. If the grantor can do this, then it follows he may, by parol evi- dence, show that the parties fixed an arbitrary meaning to words upon which tne whole efficacy of the deed depends, contrary to their natural and ordinary import and popular acceptation. But the complainant may introduce parol evidence to show the scientific and popular meaning of the words "mines and minerals" under an exception to the general rule. Where any doubt arises upon the true sense and meaning of the words themselves, or any diffi- culty as to their application under the surrounding circum- stances, the sense and meaning of the language may be investigated and ascertained by evidence deJwrs the in- strument itself ; for both reason and common sense agree that by no other means can the language of the instru- ment be made to speak the real mind of the party. Brooirts Legal Maxims 266. MAY TEEM, 1854. 135 Hartwell v. Caruman. In this case parol evidence is admissible ex necessitate. The ambiguity is created by extrinsic evidence, and it may be removed in the same manner. The allegation is, that the defendants are removing from the complainant's soil a particular substance or material. The answer is, that the defendants have a right to remove it, because it was conveyed to them under the terms " mines and min- erals." The complainant rejoins, that those terms did not? include the substance in question. The parties must therefore give evidence as to the character of the material, and they may show that it is or is not embraced in the scientific and popular use of the terms employed by the grantor. The character of the substance, or stone paint, as the wit- nesses call it, is given in the bill, and the correctness of the description there given is admitted by the answer, and con- firmed by the evidence. It is a substance resembling in gen- eral appearance red shale, so soft as to be easily cut with a knife when first excavated, but differing in appearance and quality from the surrounding earth. It is found in irregular strata, or boulders of various sizes. It hardens when exposed to the air, and when broken up and ground it is used as a paint, and is valuable for that purpose. The manner in which it is procured from the earth, and its particular loca- tion below the surface, are particularly described by a wit- ness, who was the foreman in carrying on the works. They commenced working in an old shaft, which had been used for raising copper ore. As they proceeded with the excava- tion, the dip of the paint stone was about one foot in eight or ten, perhaps a litttle more. At the point of the pit oppo- site to the side at which the excavation was commenced the paint stone was from eighteen to twenty feet from tho surface of the earth. The work was carried on by making regular mine shafts of timber, one of which was extended about fifty-six feet in length, and penetrated aboil* twelve feet in the mountain beyond the open pit. Other pits were made very similar in character. The stratum of the paint 136 CASES IN CHAJSCEKY. Hartwell v. Common. stone in the largest pit was found to vary from six to fifteen feet in thickness. The stratum was uniform, increasing in thickness as progress was made into the mountain. It does not crumble like red shale, but goes of in square pieces. It is ground in a mill, and is then fit for use, as a paint, by mixing it with oil. Its value is from twenty to thirty dollars per ton. Professor Doremus is the only scientific witness exam- ined. He says, " it may be called an argillaceous sandstone, allumina and silica being the prominent ingredients it is not an ore of iron. This comes under the head of argilla- ceous rocks. I wish to distinguinsh these classes from ores or metalliferous rocks. The position of this paint material, as it lies in the mountain, is not in veins, but in strata. The extracting of this material, as I saw it there, would not be called mining." 1 think I have extracted all the facts from the whole case which can shed any light upon this investigation. The analysis only establishes the fact, that this is not a metalliferous ore. If the terms " mines and 'minerals" used in the deed, could, by any fair construction, -be con- Ined to metallic substances, the question involved would be of easy solution ; for the metallic property found in this paint stone is so small, that for the purpose of ex- tracting the metal is of no value. But I do not think the terms should be confined to the metals or to metallic ores. I cannot doubt, if a strata of salt, or even a bed of coal had been found, they would have passed under this grant. Can this stone paint, then, be fairly and naturally em braced in the term " mineral ?" It is a body \vhich is des- titute of organization, and which naturally exists within the earth. It is below the surface; distinct from the ordi nary earth. It is in strata, and is worked by the ordinary means of mining. And although Professor Doremus says that it is not in veins, but in strata, and that he would not call the mode of extracting it mining, yet this test of his MAY TEEM, 1854. 137 Hartwell v. Camman. would exclude salt from the class of minerals ; for salt, too, is found in strata, and not in veins, and is obtained by shafts, and by the same mode of operation by which this material is extracted from the earth. It is valuable for its mineral properties, and, by a cheap and easy process of grinding, is converted into a merchantable article adapted to the mechanical and ornamental arts. It is embraced in the definition given by men of science to the term min- eral." In BakeweWs Mineralogy, page 7, it is said " the term mineral, in common life, is generally applied to de- note substances dug out of the earth or obtained from mines." In CleavelancTs Mineralogy, page 1, the defini- tion is given thus : " Minerals are those bodies which are destitute of organization, and which naturally exist within the earth or at its surface." My conclusion is, that this paint stone passed by the grant, and that the defendants have a right to excavate and remove it, and to convert it to their own use. The position which the complainant occupies in this cause before the court, is one which entitles him to no- thing more than strict right. The defendants, " the Pre- sident and Directors of the Bridgewater Paint Manufac- turing Company," were organized for the very purpose of procuring this paint stone from the premises and prepar- ing it for market. Camman conveyed to them, for these purposes, the estate which had been granted to him by Thomas A. Hartwell. The general title to the land had been conveyed by Thomas A. Hartwell to the complain- ant, Samuel Swan Hartwell. The complainant became an original stockholder, to the amount of fifty shares, in the company, and still continues to hold those shares. At the commencement of the undertaking, it was a matter of doubtful experiment whether this paint stone could be made a valuable article of merchandise. AVhile a matter of uncertainty, this complainant was a partner, contribut- ing himself and in encouraging others to contribute, to do that which he now complains is an invasion of his free- M* 138 CASES Es T CHAKCEEY. Yule v. Yule. hold. Tie gave a construction to the grant by his own acts, and encouraged others to expend their money to make this property valuable. There is another ground upon -which the complainant asks the interference of the court on his behalf. He com- plains that the defendants are disfiguring, removing, and destroying the surface of the premises to a greater extent than is necessary for proper and ordinary mining pur- poses. The evidence does not sustain the allegation. Only one-third of an acre of the surface of the ground has been removed. The value of the land damaged is about eighty-three cents, and that of the wood about three dollars. The bill must be dismissed with costs. MAEY YULE vs. PETER YULE. Upon a bill filed for alimony only, the court may make an order for a ne exeat before alimony is fixed. Th affidavit of the wife alone is sufficient to support the order. The affidavit need not state, in so many words, that the defendant is about leaving the state to avoid the jurisdiction of the court; it is sufficient, it the facts seem to show that the defendant's departure will defeat the com- plainant's claim, or that the defendant is leaving the state for that purpose. The affidavit should show that the defendant intends going abroad. It must be positive as to this point, or to his threats or declarations to that effect, or to facts evincing it, or circumstances amounting to it. In some cases it will be sufficient if the intention of the defendant's going abroad is sworn to upon information and belief; but the writ should not be issued in a doubtful case. The debt, or, in a case between husband and wife, the duty, should be certain. The husband was about moving from Newark to the city of New York, and upon his insisting that the wife should go with him, she left her husband's house, and filed her bill. She is not entitled to select her own place of residence, and under such circumstances to an order for alimony. The Court of Chancery has no power to decree alimony, except as incident to divorce, except in the single case provided for by the 10th section of the statute. MAY TEEM, 1854. 139 Yule v. Yule. The complainant's bill is for alimony. On filing the bill, an order for a tie exeat was made. The defendant an- swered the bill. Mr. Keasbey, for the complainant, now moved to discharge the order for ne exeat upon the follow- ing grounds. First. Ne exeat will not be allowed until aKniony fixed. Coglar v. Coglar, 1 Ves. 94 ; Shaftoe v. Shaftoe, 7 Ves. 171 ; Dawson v. Dawson, Ib. 173. Second. The affidavit is insufficient, inasmuch as it is only made by the wife, and that upon belief merely, and does Jiot attest that the defendant is about departing the state of New Jersey in order to avoid the jurisdiction of the court. JZtches v. Lance, 7 Ves. jun. 417 ; Jones v. Alephsin, 16 Ves. 470 ; Arnsink v. HarJday, 8 Ves. 599 ; Sedwick v. Watkins, 1 Ves. 49. Third. The answer is a denial of the allegations upon which the order was made. Fourth. This is a bill for alimony only, based upon cruel treatment. There is no prayer for divorce. The bill can- not be sustained. Laws of N. J. 924, 10. Mr. Bradley, in reply, cited Denton v. Denton, 1 J. C. R. 364, 441 ; Gilbert, administrator, and Mary E. Laineer, v. Colt, 1 Hopk. 496 ; Mitchell v. Brench, 2 Paige 617 ; Hoffman's Ch. P. 96 ; 1 Barl. C. P. 655. TUB CHANCELLOR. Mary Yule filed this bill against her husband, Peter Yule, for alimony. It is a bill for alimony only ; there is no prayer for divorce. The bill prays for a ne exeat. There is no affidavit annexed to the bill, except an application for the order of ne exeat was made. To sup- port the motion, the bill and the annexed affidavit was relied upon. A ne exeat was ordered. The defendant has answered the bill, and now moves to discharge the order. Several grounds are relied upon to sustain the motion. First. That the complainant is not entitled to the writ intil alimony is fixed. The authorities referred to, Cogler 140 CASES IN CHANCEKY. Yule v. Yule. v. Colger, 1 Ves. jun. 94 ; Shaftoe v. Shaftoe, 1 Ves. 171 ; and Dawson v. Da&son, Jo. 173, very fully sustained this objection. But in Denton v. Denton, 1 J. C. JR. 364, the Chancellor, upon the exparte application of the wife, or- dered a ne exeat prior to a decree for alimony. And upon an application to discharge the order (1 J. C. J%. 441) upon this ground, the Chancellor reviewed the above, and other authorities, relied upon to sustain the objection, and overruled them, after examining the principles upon which the decisions were put. The Court of Chancery, in this state, has uniformly followed the decision of Denton v. Denton, and the question must be considered, therefore, as settled. Second. It is objected that the affidavit of the wife, as to the intention of the husband's leaving the state, is in- sufficient; that the affidavit is founded upon her belief only ; and it is further objected, that the affidavit of the wife, alone, is not sufficient to warrant an order for the writ. It is true, in Sedwick v. Walkins, 1 Ves. jun. 49, the Lord Chancellor refused a ne exeat where the affidavit of the wife, alone, was offered to support the motion. But the case was virtually overruled in Shaftoe v. Shaftoe, 7 Ves. 171 ; and in the case of Denton v. Denton, the order was made upon the affidavit of the, wife alone. The sufficiency of the affidavit is further objected to, because it does not allege that the defendant is about leaving the state to avoid the jurisdiction of the court. In Etches v. Lance, 7 Ves. jun. 417, the Lord Chancellor asks the question, " Must not something more positive be sworn as to the facts of his going abroad, or declaration ; and ought not the affidavit to state that he is going to avoid the jurisdiction of the court ?" But such an alle- gation is not necessary, if the facts stated show that the defendant's departure will defeat the complainant's claim, or that he is leaving the state for that purpose. cehm v. Wood, Tur. & Buss. 344 ; Atkinson v. Leonard, 3 Bro. C. MAY TERM, 1854. 141 Yule v. Yule. R. 318. In Toirdinsan v. Harrison, 8 Ves. 32, the Lord Chancellor expressed some doubt whether the affidavit was sufficient, not alleging that the defendant was going abroad to avoid the demand. But, upon being reminded by Mr. Leach (amicus curice) of the search for precedents, when the question was asked by Lord Eldon, and the re- sult of that investigation, the order was made. Another objection to the affidavit is, that it states the belief only of the complainant as to the intention of the defendant's departing the state. The objection is not well taken in point of fact. The affidavit states that the de- fendant threatened the complainant, that he would aban- don her without making any provision for her support, and that he intended to take with him another woman ; that he had then his goods packed, and, as she Relieves, with the intention of leaving the state of New Jersey, and leaving the complainant and her infant child perfectly destitute." The affidavit should show that the defendant intends going abroad. It must be positive as to this point,, or to his threats or declarations to that effect, or to facts evincing it, or circumstances amounting to it. 1 Barb. C. P. 649. I think the affidavit sufficiently precise in the particulars required. In some cases it will be sufficient if the intention of the defendant's going abroad is sworn to upon i information and belief. CoUinson v. Collinson, 18- Ves. 352. The court should exercise a sound discretion in ordering this writ. It should not be issued in a doubt- ful case. The debt, or, in a case between husband and wife, the duty, should be certain, and the intention of de- parture beyond the court's jurisdiction should sufficiently Appear. There is no technical form in which these par- ticulars need be stated. It is sufficient if they appear by proper proof before the court. The debt need not appear by affidavit. It is sufficient if established by a master's report, as in the case of Coliinson v. CoUinson, before re- ferred to. Third. It is insisted that the answer and the accom 142 CASES IN CHANCEKY. Yule . Yule. panying affidavits show a case which renders it improper for the court to interfere with the liberty of the defend- ant. The bill alleges, in general terms, that the defendant abused and ill-treated the complainant in the most cruel and inhuman manner. The only specification of sucli abuse is, that he accused the complainant of infidelity to her marriage vows, and refused to provide her and her infant child with the necessaries of life. The defendant, denies that he ever refused to .make a suitable provision for the maintenance and support of his wife and child, and alleges that he has always provided for them, and fur- nished them with the necessanes and comforts of living suitable to their station in life. He does not deny the faj of having accused her of infidelity to her marriage vows. But, as to this particular, tn bill itself is very meagre. "Whether this charge was made in the presence of a third person, or was the mere ebullition of angry feelings, made in an excited altercation between the parties, is not stated. The occasion, and the circumstances under which the charge was made, would very materially affect the aggra- vation of the offence. But the defence made by the de- fendant, as to the allegation of his intention to abandon his wife and child, and to depart from the state for the purpose of avoiding his legal responsibility to provide for them, is satisfactory, and entitles him to have the ne exeat discharged. The defendant has for a long time been a foreman in an extensive tailoring establishment in the city of Newark. About ten months prior to filing the bill, the establishment removed its place of business to the city of New York ; and the defendant, although keeping house with his wife in the city of Newark, was obliged to go daily to New York to discharge his duties as fore- man. Finding this inconvenient and expensive, he Deter- mined to remove to New York, and made his arrange- ments accordingly. His wife refused to go with him ; and npon his insisting, she actually abandoned her home in Newark, and took up her residence with a neighbor. The MAY TERM, 1854. 143 Yule v. Yule. complainant went to New York, and pursued his business there ; but before going, left in the hands of a friend some money, to be applied for the support of his wife and child. Subsequently, on coming out to Newark to look after his property, he was arrested upon this writ of ne exeat. I have not stated the defendant's case as strong as it is made by the answer and affidavits. For a Court of Chancery, under such circumstances, to undertake to restrain the liberty of a husband, in order to compel him to support his wife, would be adopting the wildest notions of the most sanguine enthusiasts in favor of women's rights. What is left us of the principles of the common law re- specting the relationship existing between husband and wife, this court must adhere to. The husband is bound to provide a proper maintenance for his wife, but she must share his fortunes under his own roof. If she seeks another shelter for her own pleasure or convenience, it must be at her own expense. Whatever may be done elsewhere, this court, while any discretion is left to it in administering the laws, will not countenance a relaxation of any of those wholesome rules which make the mutual dependencies between husband and wife, and child, the best security for the peace and happiness of them all. The fifth, and last ground upon which the defendant relies to have the order discharged, is also well taken, that the bill is for alimony founded upon extreme cruelty, and that in such a case this court has no jurisdiction to decree alimony, except as incident to a divorce ; and as that is not asked fbr, the complainant is not entitled to relief. The general proposition is contended for, that this court can grant alimony only as incident to divorce. Bishop on Marriage and Divorce, 551, to 561, after dis- cussing the doctrine, and referring to the numerous au- thorities bearing upon it, says, " It is upon this principle," the principle just stated by the author, that the law casts upon the husband the duty suitably to maintain the wife, according to his ability and condition ; " that, as a gene- CASES IN CHANCERY. Yule v. Yule. ral proposition, a decree for separation in favor of the wife must be accompanied or followed, if she ask it, by a decree for alimony. And upon the same principle rests the bettor and general doctrine, which we have already discussed, that no conrt can grant alimony when that is the only thing sought ; because in the nature of the case, an adjudication that the wife may live separate from the husband, is a necessary foundation for an adjudication that he shall pay her a separate support. The jurisdiction of this court in cases of divorce and alimony is prescribed by statute. The third, fourth, and eighth sections of the statute (R L. 923, 924-,) specify the grounds upon which the court may assume jurisdiction. The ninth section (R L. 924) enacts, "that when a di vorce shall be decreed, the court may take such oruei touching the alimony and maintenance of the wife, and also touching the care and maintenance of the children by the husband, as from the circumstances of the parties and the nature of the case shall be fit, reasonable, and just." The tenth section of this statute specifies a single ease in which it declares it shall be lawful for the court to order alimony, without connecting such order with a decree for divorce, andthat is in a case where the court is not authorized by statute to decree a divorce, vis. where the husband, without any justifiable cause, shall abandon his wife, or separate himself from her, and refuse or ne* gleet to maintain and provide for her. Admitting that there is nothing in the statute itself to prohibit the court from making a decree for alimony alone, in those cases specified' in the sfatute where the court may decree di- vorce and alimony as incident to it, we are then thrown back upon the question as a matter of principle, whether the court ought, except in cases expressly authorized by statute, to decree alimony, except upon a decree for di- vorce, as a necessary foundation for it. The weight of au- thority, as has been before stated, is against the jurisdic- tion. Al'.iongh we have no express adjudication in this MAY TEEM, 1854. 14ft Yule v. Yule. court upon the point, the opinion of the Chancellors in cases which have been decided, not however turning upon that point alone, would seem to incline in favor of the doctrine, as I have stated it. In Melony v. Melony, decided by Chancellor "Williamson, in 1828, a decree was made for alimony. The bill was filed for divorce and alimony. But the case was brought within the provision of the tenth section of the statute. The Chancellor says, "I think it sufficiently proved that the complainant has offered to re- turn and live with the defendant, and that he refuses to live with her, and neglects to provide for her, or to main- tain her according to his circumstances and situation in life." In the case of Miller v. Miller, Saxton 389, the mas- ter, sitting for the Chancellor, after citing Bail v. Mont- gomery, %Ves.jun. 195; in which Lord Thurlow says, "I take it to be the established law, that no court, not even the ecclesiastical court, has any original jurisdiction to give a wife separate maintenance," goes on to say, " But in thisxstate, I consider this court has original jurisdic- tion." And he then cites the tenth section of the statute to sustain his opinion. The present case is not within the tenth section of the statute. The husband has not abandoned his wife, or separated himself from her, nor refused or neglected to maintain and provide for her. She, as the bill admits, left his home, and abandoned him. With the view I have taken respecting the jurisdiction of the court, I think I may safely conclude, that it is at least extremely doubtful whether the complainant is enti- tled to the relief she seeks by her bill. As the court ought not, in a case of doubt, to order a ne exeat, I consider tin's objection to the jurisdiction of the court, for the purposes of this argument, to be well taken. CITED in Rockwell v. Morgan, 2 Dean. 121; Anshutz v. Anshutz 1 C. E. Or. 165; MacDonough v. Qaynor, 3 C. E. On 250; Anonymous, 9 C. E. Or. Iflt YOL- n. N 146 CASES IN CHANCEKY. Cornish r. Bryan. DAVID B. CORNISH Vs. ISAIAH BRYANT et al. This court has the power to order a bond or other instrument to be deli vered up to be cancelled, and the court may properly exercise the power, although the grounds upon which the jurisdiction of the court is invoked may con- stitute a valid defence at law against the writing. An assignee of a bond, takes it subject to all the equities which existed at the time of the assignment, between the obligor and obligee. But if A executes to B his bond, and takes, as a consideration for it, B's pro- missory note at ninety days, if B assigns the bond to C, before the note becomes due, A cannot resist the payment of his bund in the assignee's hand on the ground of a failure of consideration. The bill alleges, that on or about the 3d day of June, 1853, Edward Mumford was engaged, in the city of Phila- delphia, in the business of vending tickets, entitling, or purporting to entitle, the holders thereof to a passage from the city of New York to California, representing himself to be the accredited agent of the proprietors of certain lines of steamships for the conveyance of passen- gers between the places aforesaid; that the complainant was desirous to secure a passage from New York to San Francisco, and for that purpose applied to Mumford for the purchase of a passage ticket ; that upon such applica- tion, Mumford demanded of him, as the price of such ticket, one hundred and eighty dollars, and that the com- plainant, being unprovided with cash, proposed to Mum- ford to execute to him a bond conditioned for the pay- ment of two hundred dollars, to be secured by a mortgage On certain real estate belonging to the complainant, situ- ate in the city of Camden, in this state ; that Mumford refused this proposition, but at the same time proposed to Bell the complainant a ticket for a conveyance from New York to San Francisco, at the price of one hundred and sixty dollars, and to give him the sum of one hundred dollars in money, and an acknowledgment of the receipt by him, the said Mumforcl, from the complainant of the further sum of three hundred dollars, and that the com- MAY TEEM, 1854. 147 Cornish tJ. Bryan. plainant should execute and deliver, in turn to Mumford, the complainant's bond conditioned to pay six hundred dollars, vis. three hundred dollars in one year, with inte- rest, and three hundred dollars in two years, with inte- rest, and a mortgage on the Camden lands, to secure the said bond ; that Mumford represented that the bond and mortgage in such case should be held good for three hundred dollars only ; that the receipt of three hundred dollars would always remain as a discharge for so much of the bond ; that he wished the bond and mortgage to be six hundred dollars for his own convenience, and that he would not furnish the ticket on any other terms ; that the complainant, confiding in Mumford, did, on the 3d of June, 1852, execute and deliver to M. a bond and mortgage to secure $600, according to the terms afore- said, and upon the delivery thereof, received from M., as the only consideration therefor, the sum of one hundred dollars in money, together with a receipt, signed by M., for the sum of $300, and a memorandum in writing, that he would furnish the complainant, in the city of New York, a passage ticket from said city to San Francisco by a steam ship, to sail from New York on the ninth of June then next ; that in pursuance of said arrangement, complainant went to New York to receive his passage ticket, and sail for California, and remained in New York until after the sailing of the steamer of the said 9th of June, and made frequent demands upon M. for his ticket, but which M. neglected and failed to furnish ; that, on the 14th of same month of June, complainant called upon M., in the city of Philadelphia, and paid back to him, at liis request, the said sum of one hundred dollars, so re- ceived from him as aforesaid, and, upon like request, sur- rendered and delivered to M. the memorandum agreeing to furnish the passage ticket, and also delivered up to said M. the receipt for three hundred dollars, the said money, ticket, and receipt being the whole and only con- sideration for the bond and mortgage ; that at that time 143 CASES IN CHANCEKY. Cornish v. Bryan. complainant demanded the bond and mortgage, when M. replied, that they were not conveniently at hand, or in the actual possession of him, the said M., and he, the said M., thereupon executed and delivered to complain- ant, and prevailed on him to accept, a bond, in the pen- alty of $1200, conditioned for the payment of the instal- ments and interest mentioned in the condition of the bond and mortgage from complainant to M. acknowledg- ing the receipt of the money received by the bond and mortgage, and covenanting to make good all payments on account thereof, and to take up and release the com- plainant from the said bond and mortgage as soon as pos- sible, and at the same time M. delivered to complainant a receipt for said $600 and an undertaking to pay off said bond, and which bond and receipt the complainant re- ceived as temporary security for the surrender of the bond and mortgage ; that between the day of the date of the said bond and mortgage and the 26th day of the same month of June, Mumford assigned and delivered the said bond and mortgage to the other defendant in this suit, Isaiah Bryan, of the city of Camden afore- said, and that afterwards, to wit, on the said 26th day of June, the said mortgage was put upon record, and that B. now claims from complainant the money due on the bond and mortgage ; that complainant has lately dis- covered that the said M. never was the accredited agent of any line of steam ships, and had no authority to sell passage tickets by any line of conveyance from the own- ers thereof, or for any other person authorized therefor ; that complainant is a man of color, ignorant of the form s of business, and particularly of the nature and effect of the bond and mortgage so executed by him, as aforesaid, to M. ; that he is advised by counsel that the said bond and mortgage are fraudulent and void, and ought to be delivered up to be cancelled ; that E. M. threatens, if the money, as it grows due on the bond and mortgage is not paid, he will commence suit upon them. MAY TEEM, 1854. 149 Cornish v. Bryan. The prayer of the bill is, that the said bond and mort- gage may be declared null and void, and that the same may be delivered up to be cancelled ; that an injunction may issue, &c., and that the complainant may have such further and other relief, &c. Josiah Bryan answered this bill. He states that he is the bona fide assignee of the said bond and mortgage ; that it was assigned to him on the 8th day of June, 1853, and was by him delivered for record on the 26th of the same month ; that the consideration paid by him to E. M. was $550 in cash, and that he took the assignment without any notice of any of the facts or circumstances alleged by the bill of complaint in reference to the trans- action. No answer was put in by Edward Mumford, he having left the country shortly after the transaction. Proofs were taken on the part of the complainant, and exhibits made on both sides. Barker Gummere and W. L. Dayton, for the complain- ant, insisted First. That the bond and mortgage were procured by artifice and fraud, and are therefore void. Second. That the assignee took the assignment of the bond and mortgage subject to all the equities existing be- tween the obligor and obligee. Shannon v. Marselis et al. t Saxton 425, and cases there cited. Third. That the obligee paid and satisfied the bond and mortgage to the obligor before having any notice of the assigment. Statutes of New Jersey 801. Fourth. That the relief prayed for is proper to be granted by this court. Hamilton v. Cummings, 1 J. C. It. 517. James B. Dayton, for defendant. The remedy of the complainant is complete at law, and tlie court ought no.t to grant the relief asked for by the bill. 150 CASES IN" CHANCERY. Cornish v. Bryan. Minshaw v. Jordan 3 B. C. 18 ; Ryan v. Macmaih, 3 Bro. 15 ; Newman v. TF*fo0r, 2 T 7 ^. /im. 483 ; Franco v. J50- fcw, 3 Ves. 363 ; #ray v. Mathias, 5 Fes. 286. Bryan is an innocent holder without notice of any fraud. Ther.e was no fraud. The complainant made his bargain with his eyes open, and his ignorance and stupidity ought not to prevail in depriving the defendant of his money. After complainant discovered the alleged fraud, he waived it, and took Mumford's bond in full consideration. He cannot now set up the fraud. Story on Contracts, 314, 315 ; Lyon v. Richmond, 2 J. C. JR. 51 ; Starrs and Brooks v. Barker, 6 J. C. R. 166. He paid the bond and mortgage, if he did pay them, with full knowledge of the assignment. Mumford told him he did not have them. THE CHANCELLOR. The prayer of the bill is, that the bond and mortgage executed by Mumford to Cornish, and by Cornish assigned to the defendant, Bryan, may be de- clared null and void, and may be decreed to be delivered up to the complainant, and be cancelled. This relief is resisted upon several grounds. First. The power of the court is questioned. Second. Upon the ground that the allegations of the bill, respecting fraud in procuring the execution and de- livery of the bond and mortgage, are not sustained by the proofs. Third. That the defendant, Bryan, is a bonafide as- signee, without any notice as to the consideration upon which the bond and mortgage were executed, and that his rights ought not to be affected by the transactions between the original parties. Fourth. That whatever payment, or satisfaction of the bond and mortgage, was made by the complainant to Mumford, was after the assignment, and under circum- stances to charge the complainant with notice of the as- signment. MAY TEEM, 1854. 151 Cornish u. Bryan. And lastly. That the bond delivered by Mumford to Cornish was a new consideration for the bond and Mort- gage, and was received as such by the complainant, with i'uii knowledge of the alleged fraud ; and that he is thereby estopped from setting it up against the defendant, Bryan, who is a bvtiajide assignee. The power of the court to order a bond, or other in- strument, to be delivered up to be cancelled, has been too frequently exercised to be now called in question.- The authorities were very carefully examined by the Chancellor in Hamilton against Gummings, 1 J. C. R. 517, and the propriety of the court exercising such power in particular cases vindicated. " This court has the power to order a bond or other instrument to be delivered up to be can- celled, whether such instrument is or is not void at law, or whether it be void on the face of it, or by matter shown by the proofs in the cause ; but the exercise of this power rests in the sound discretion of the court, and is regulated by the circumstances of each particular case." The mere fact, that the grounds upon which the juris- diction of this court is invoked may avail the party in an action at law, and constitute a valid defence by plea, or otherwise, is not a sound objection to the court's exer- cising this power. If a party holds an obligation which ought to be cancelled, and persists in holding it for the purpose of harassing the obligor with a suit, he ought not to be permitted to select his own place, time, and circum- stances for such prosecution. Where a suit at law is com- menced, and the defence at law is complete, then that is a good objection for this court's refusing to change the forum of litigation. Where, too, the defence is of a cha- racter plain and palpable, and within the command of the party at any time, this court ought not to encourage a re- sort to an expensive litigation in a Court of Chancery. In all cases, the court must exercise a sound discretion, arid be regulated in its action by the propriety of the par- ticular case before it. The case made by this bill is one 152 CASES IN CIIANCEBY. Cornish v. Bryan. entitling the complainant to relief. The grounds upon which he insists the bond and mortgage should not be enforced, while they might protect him against a recovery in any action at law brought against him, are of a charac- ter to render a defence at law embarrassing and hazard- ous. Besides, if the complainant's allegations are true, the mortgage ought not to remain an encumbrance, or at least a blemish, upon his title. His only remedy to relieve himself of the embarrassment which this mort- gage might. occasion him, and of the serious injury to his title, is by a resort to this court. I think the complainant is rightly before this tribunal, and should be relieved, if he has sustained his case by proof. As to the bond and mortgage having been procured from the complainant by the artifice and fraud of Mum- ford, if the complainant's right to relief turned solely upon this question, his case could not be sustained. The allegations of the bill in this particular are not proved. The important charge, that Mumford fraudulently as- sumed to be the agent of a line of steamers between New York and San Francisco, with power and authority to vend tickets for passengers, is not made satisfactory by the evidence. He was openly acting as such agent in the city of Philadelphia. It is not pretended he assumed such authority for the mere purpose of imposing upon the complainant. The only evidence of his want of authority is the fact, that upon the complainant's calling at the office of the company in the city of New York, for whom Mum- ford assumed to act, some one at the office denied that Mumford was an agent. There might have been reasons existing at the time when inquiry was made for denying his agency. It was on the eve of the sailing of the steamer, at a period when, it is a matter of notoriety, the demand for passages could not be supplied. But it is unnecessary to speculate upon this matter. Satisfactory proof was within reach of the complainant. If Mumford was not an agent of the company, some one connected with the MAY TEEM, 1854. 153 Cornish v. Bryan. company should have been called as a witness to establish the fact. The proof as to the particulars of the transac- tions which took place during the negotiation of the par- ties respecting the bond and mortgage, does not corres- pond with the allegations of the bill in every particular. According to the testimony of Eli Hopkins, the whole transaction was this : the complainant applied to Mum- ford for a ticket, and offered to give him a mortgage on his house and lot in Camden for three hundred dollars. He wanted Mumford to give him a ticket for one hundred and eighty dollars, and the balance in money for the mortgage. Mumford refused, and said he would not take a mortgage for less than six hundred dollars. It was then agreed between them that the bond and mortgage should be given for six hundred dollars ; that Mumford should give complainant a ticket for a passage from New York to California, at the price of one hundred and eighty dol- lars, pay him in cash one hundred and twenty dollars, and give him a receipt for $300, which receipt would be good at any time as a payment for that amount on the bond and mortgage. The witness does not state that Mumford used any artifice, or even persuasion, to induce the complainant to make the arrangement. He delibe- rately entered into this arrangement. Mumford gave him one hundred dollars in cash, a memorandum for the ticket, and a receipt, as agreed upon, for the three hundred dol- lars, and the complainant delivered to Mumford the bond and mortgage. Thus far there was no fraud in this trans- action, unless Mumford assumed his character as ticket agent for the fraudulent purpose of procuring the com- plainant to execute the papers ; and upon this point, as I have already remarked, the evidence is not satisfactory. The next question is, as to the rights of llyan under his assignment. What, then, were the respective rights of the original parties at this crisis in the transaction ? The bond and mortgage had been delivered. The complainant had re- 154: CASES IN CHANCERY. Cornish o. Bryan. ceived a valid consideration for them of two hundred and eighty dollars, one hundred of which was in cash, and for the remaining one hundred and eighty dollars, he took a memorandum, or order for the delivery of a passage ticket from New York to California, in a steamer to sail from the city of New York on the then 9th day of June. On the 8th day of June, Mumford assigned the bond and mortgage to the defendant, Ryan. Ryan took the bond subject to all the equities which existed at the time of the assignment between the obligor and obligee. On the 8th of June, it was a good and valid obligation in the hands of the obligee for two hundred and eighty dollars. By the assignment, all his title and interest passed, and became vested in his assignee. That interest was not affected by the subsequent failure of the obligee to furnish the pas- sage ticket. The assignment was executed on the 8th of June. The ticket was to be furnished on the ninth. If this part of the consideration had failed while the bond re- mained in the hands of the obligee, an equity to have that amount deducted from or credited on the bond, might have arisen. But no such equity can attach to the bond in the hands of a bonafide assignee. If A, executes to B. his bond, and takes, as a consideration for it, B's prommis- sory note at ninety days, if B. assigns the bond to C. be- fore the note becomes due, A. cannot resist the payment of his bond in the hands of the assignee on the ground of a failure of consideration. And upon the same princi- ple, the complainant could not resist the payment of his bond to the amount of this two hundred and eighty dollars, on the ground that so much of the consideration had failed. The assignee was a ~bona fide holder of the bond and, as such, was entitled to recover of the obligor two hundred and eighty dollars, even if he had notice of the whole transaction between the obligor and obligee. But a further ground upon which the complainant asks relief is, that the bond has been fully paid and satisfied, and that such payment was made to Edward Mumford, MAY TERM, 1854. . 155 Cornish v. Bryan. the obligee, without the complainant's having notice of the assignment. If this is so, the bond is satisfied, ac- cording to the provision of the statute. /Statutes of New Jersey 801. The evidence on this point is full and satisfactory. After the 9th of June, the complainant leturned from the city of New York baffled and disappointed in his efforts to procure his ticket for a passage to OaT forma. The only in- ducement for which he had executed the bond and mort- gage had failed. He at once sought for Mumford, for the purpose of rescinding the contract and procuring a return of his obligations. On the 12th of June, he had an inter- view with him in the presence of two companions, Eli Hopkins and Henry Graham, who, also, had received from Mumford a like memoranda or tickets with that which the complainant had received, and who, in like manner, had been disappointed. Hopkins thus details what took place between the parties. As the order of the occurrence is of some importance, I give the language of the witness. " We demanded our money. He then paid Henry Graham his one hundred and eighty dollars ; then he asked David Cornish (the complainant) to pay him the one hundred dollars he had paid him. David paid him ; and then he paid me back my one hundred and eighty dollars. I received part of the same money which David paid him. After David paid him the one hundred dollars, of course he gave him up the check and receipt for three hundred dollars. Then David said, now I want to have this thing settled right away. I have given you up your check. I have given you up your receipt. I have given you up your money. Now I want you to give me up my mortgage. His reply was, " David, I have not got your mortgage just here, but I will have it for you in the course of a few days, or as soon as possible." The statement of the witness is corroborated by Henry Graham. Mumford then gave complainant a writing acknowledging the pay- ment in full of the bond and mortgage. The evidence 156 . - CASES IN CIIANCEKY. Cornish v. Bryan. clearly shows that the complainant paid the bond in full without notice of the assignment ; and that when he re- turned the consideration, there was no ground for suspi- cion that the. papers were not then in the actual posses- sion of Mumford. This constitutes a valid defence against the bond under the statute. I have been somewhat em- barrassed, as to this part of the case, from the fact, that the bill does not directly charge that the complainant satisfied the bond without having notice of the assignment. I admit that I have been obliged to give a very liberal con- struction to the bill to enable the complainant to avail himself of this ground of relief. I have felt myself jus- tified in doing so to reach, what appears to me after a careful review of all the circumstances, the real merits and equity of the case. The defendant must be the suf- ferer, but he cannot be said to be an innocent sufferer. He has involved himself in this difficulty by his own laches, and by reposing undue confidence in a man who, up to the time of the assignment, was a total stranger to him. He bought the bond and mortgage within five days after their execution, and before the mortgage was re- corded, at a discount of fifty dollars. He did not have the mortgage recorded until the 26th of June ; and, instead of giving notice at once to the complainant of the assign- ment, he preferred reposing upon his confidence in Mum- ford. He thus exposed both himself and the complain- ant to MurnfordV dishonesty, and the law makes the de- fendant the sufferer. But, on behalf of the defendant, it is insisted that the instrument of writing, which was executed and delivered by Mumford to the complainant on the 14th of June, when the consideration of the bond was returned to Mum- ford, is an affirmance of the existence and validity of the bond and mortgage. I do not see how such a construction can be given to the instrument. After the complainant had returned the consideration, and Mumford had refused to deliver up the papers, the complainant demanded secu- MAT TEEM, 1854. 157 Cornish v. Bryan. rity for their delivery. Mumford then executed a writing in the nature of a bond with a penalty of twelve hundred dollars. The condition recites the bond and mortgage, that the complainant had not made use of the money, and wished to pay the full amount in advance for principal and interest. It then declares as follows : "I, the said Edward Mumford, bind myself, my heirs and executors, to pay said instalment, and relinquish the same, having received the full sum of six hundred dollars and costs from the said David B. Cornish on account of his mort- gage, hereby discharging the said David B. Cornish from any payment or sums of money that may come due on the same, and to stand make goodany payment that may come due on account of the same, or to any other person or persons whatsoever, the said Edward Mumford binds himself to take up the said mortgage, and give the said David B. Cornish a release in full as soon as possible." Whether the complainant would have been justified in returning the consideration he had received for the bond, or in paying the bond upon the receipt of such a paper, and could, after doing so, have protected himself against the payment of the bond in the hands, of an innocent holder, is a question different from the one we have to solve in the case before us. He had satisfied the bond, not upon condition that Mumford should ej^cute this pa- per, but he had satisfied it unconditionally, under the im- pression and belief that the bond was at the time in the hands of the assignee, and would be forthwith delivered up to him. The paper can be looked upon in no other light than as an acknowledgment that the bond and mort- gage had been satisfied, and as an indemnity to the com- plainant against any use of them to the complainant's in- jury. That such was the intention of the parties is evi- dent ; and such intention is not inconsistent witli a strict legal construction of the instrument. I shall, therefore, decree that the bond and mortgage be delivered up and cancelled. The decree must be with- YOL. IL O 158 CASES IN CHANCEKY. Sims v. Sims. out costs. There is no evidence that the complainant no- tified the defendant, before instituting this suit, of the grounds upon which he claimed relief, or that the defend- ant had any knowledge of the complainant's equities. CITED in Andrews v. Torrey, 1 McCar. 358; Bush and Howard v.Cushman, 12 C. E. Gr. 134; Brown v. Kahnweiler, 1 Stew. 314; DeWitt v. VanSickle, 2 Stew. 212. HEDGE T. SBIS vs. GEKRIS SIMS, executor, and others. The personal estate is the only fund for the payment of legacies, unless a contrary intention appears in the will. Where a legacy is made an express charge upon the land, if the personal es- tate in the hands of the executor is sufficient to pay the legacy, and the ex- ecutor squanders the estate, the legatee cannot resort to the land. The land is debtor for the legacy only, and not for the misconduct of the executor. Where the executor has in his hands funds sufficient to pay all the legacies, and after paying some of them, squanders or misapplies the residue of the fund, the legatees unpaid cannot resort to the others for contribution ; the legatees who have received payment are entitled to the benefit of their dili- gence. When there is -an original deficiency of assets, the rule is different ; and the rule may have a different application when there is a participation in misapplying the assets between the executor and such legatees as are paid their legacies. The intention of the testator is the essence of ademption of a legacy. When an advancement is relied upon as an ademption, two facts must be estab- lished, the advancement and the intention of the testator that it should be in satisfaction, or a substitute for the bequest. In some cases, e^iity raises the presumption, and parol testimony is then ad- missible, not to raise, but to confirm a presumption. S. A. -Allen, for complainant. C. S. Green, for defendant. 'THE CHANCELLOR. The object of the bill is to collect a legacy due the complainant under the last will of his .father, James Sims. >, Gerris Sims, one of the defendants, is the sole surviving executor of the will, and he and the other defendants are devisees in possession of real estate devised to them by the testator. After setting out the .the .bill states, that the executor, in the year 1850, MAY TERM, 1854. 159 Sims v. Sims. settled the estate in the Orphans Court of the county of Salem, and that, by such settlement, a balance was found in his hands, as such executor, of seven hundred and eighty-two dollars and eighty-seven cents, and that he ap- plied that money towards the payment and satisfaction of a certain legacy due him under the will, and refuses to pay the legacy of seven hundred dollars, by the will be- queatl;ed to the complainant. The bill charges that the executor is in failing circumstances, and tljat he has dis- posed of all the personal estate of the testator ; that the other defendant's, as devisees under the will, have taken possession of the lands of the testator devised to them respectively, which constituted all the real estate of the testator. The bill further charges, that the defendants have respectively received of the executor's legacies which they were entitled to under the will, and insists that if the testator's personal estate is not sufficient, by reason of an application thereof to the payment of any debts and legacies to pay the complainant's legacy, then he is entitled to have the whole of said legacy, or the ratable proportion thereof, raised by a sale of proportionable parts of the real estate of the testator devised to, and in the possession of the defendants. The bill charges that the testator's real estate is made by the wiil, chargeable with the complainant's legacy, and that the defendants, having been paid their respective legacies out of the personal es- tate, they must each of them contribute, in a proper ratio, to the payment of the complainant's legacy. The prayer is, that the complainant may be decreed en- titled to his legacy, and that it may be paid out of the personal estate, and if that is deficient, then that it may be paid out of the testator's real estate. The bill was answered by three of the defendants, Ger- ris Sims, the executor, and John and Smith Sims. The answer admits that the executor paid off all the debts of the testator, and all the legacies, except the one to the complainant. It admits the settlement in the Orphans 1GO CASES IN CHANCERY. Sims v. Sims. Court, and the balance found in the hands of the execu- tor, as stated in the bill of complaint ; that the executor appropriated the sum of five hundred dollars to the pay- ment of a legacy due him, and that a balance was left in his hands of two hundred and eighty-two dollars and eighty-seven cents, which was the whole residue of the personal estate after the payment of debts and legacies. The answer then states, that the complainant was entitled to the one-eighth of this residue, and that he brought suit for it against the executor, and recovered a judgment, which was paid. The defendants admit that they are in possession of real estate devised to them by the will, and claim the same as devisees. The answer further alleges, that shortly after the testator made his will, the complain- ant being desirous of erecting a dwelling house upon the part of the real estate of the testator which by his said will he had devisep to the complainant, received from the testator an advancement of seven hundred dollars, in full payment and satisfaction of the legacy mentioned in the will, and appropriated the same for the purpose of erect- ing a dwelling house on the land so devised to him by the will of his father, and which land, at his father's death, became vested in the complainant, as such devisee. The complainant filed a replication, and the cause was heard upon the pleadings and proofs. Admitting all the facts contained in the bill to be true, the complainant is not entitled to relief against any of the defendants, except the executor. The bill seeks to charge these defendants upon two grounds : First. That the lands which they are in posses- sion of as devisees are charged with the payment of the pecuniary legacies. Second. That if the lands are not chargeable by the terms of the will, the complainant has a right to call upon the defendants for contribution, on the ground that their respective legacies have been paid in full, and the executor having misapplied the funds in his hands, and being insolvent, the complainant has no MAY TEEM, 1854. 161 Sims r. Sims. other resource for the satisfaction of his legacy. I have been unable to discover anything in the will to make the complainant's legacy, under any circumstances, a charge upon the real estate. The bill specifies no particular clause or part of the will upon which the complainant relies for this purpose, nor was any pointed out on the argument. The personal estate is the only fund for the payment of legacies, unless a contrary intention appears in the will. The real estate is not charged with the payment of lega- cies, unless the testator expressly declares such to be his intention, or unless such intention can be inferred from the language of the will, or from the disposition the tes- tator makes of his property. In this will, such inten- tion is not declared, nor can it be inferred from the general tenor of the will, or from the disposition the tes- tator has made of his property. But if the legacy had oeen made an express charge upon the land, the complain- ant would not, upon the facts stated in his bill, be entitled to relief against these defendants. It appears that, after the executor had paid the defendants their respective lega- cies, there remained in the executor's hands siiffipient per- sonal estate of the testator to satisfy the complainant's legacy. That fund the complainant was entitled to. That the executor has squandered the fund, and become insol- vent, gives to the complainant no relief against the lands devised to the defendants ; and upon this principle, that the land is debtor for the legacies only, and not for the misconduct of the executor. Roper on Legacies 498 ; 1 P. Wms. 505 ; 3 Ball <& Beatty 39 ; 5 Yes. 736. Nor is the complainant entitled to call upon the?e de- fendants to refund any portion of the personal estate which they received from the executor in payment of tlu-ir legacies. It is admitted that, after their legacies were paid, there remained in the hands of the executor sufficient assets to discharge the complainant's legacy. If this is BO, the complainant must resort to that fund. If the ex- ecutor has squandered it, and is insolvent, it is the inis- o* 162 CASES IN CHANCERY. Sims v. Sims. fortune of the complainant, and not the fault of the de- fendants. Their diligence has secured the payment of their legacies. There is no reason why they should stand security for the executor. A legatee, under such circum- stances, is entitled to the advantage of his diligence. If there had been an original deficiency of assets, the case would be different. But the bill expressly charges, that after the executors had paid the other defendants, there remained still in his hands more than assets enough to pay the complainant. Lupton v. Lupton, 2 J. C. R. 625 / Walcott v. Hall, 2 Bro. 305. The following cases lay down the rule, and show the distinction between a legatee and creditor. (Anon.} 1 P. Wms. 495 ; (Anon.} 1 Vern. 162 Hardwick v. Myno, 1 Ans. 112. It is true, if these defend- ants had any participation with the executor in the mis- application of the assets, a very different question would be presented. But although this was suggested in the argument, the bill does not put the complainant's right to relief upon this ground, nor is there such proof as would warrant such a conclusion. As to these defendants, therefore, upon the pleadings, the complainant is not entitled to relief, and, as to them, the bill must be dismissed. As against Gerris Sims, the executor, the complainant is entitled to a decree against him, unless he has established by proof the defence set up in his answer, that the testator, after making his will, satisfied the legacy. To establish this issue in his favor, this defendant has poved that the testator, after the execution of the will, advanced to his son, the complainant, seven hundred dol- lars; that the testator declared that such advancement was in satisfaction of the legacy, and that since the testa- tor's death the complainant has himself declared that the testator paid him seven hundred dollars in lieu of the leg- acy. The evidence to establish the fact is conclusive and satisfactory, and the defence set up must prevail, unless the objection interposed by the complainant, to wit, that MAY TEEM, 1854. Sims v. Sims. the parol testimony is inadmissible, can avail the com- plainant. The intention of the testator is the very essence of ademption. Two facts, therefore, must necessarily be es- tablished, the advancement, and the intention of the tes- tator that such advancement was in satisfaction, or a sub- stitute for the bequest. In the instance of parent and child, equity raises the presumption that the legacy is intended as a portion, whether the will so expresses it or not. If afterwards the parent advance a portion to the child, the legacy is satis- fied, the advancement and the legacy being for the same purpose. Parol testimony is admitted therefore, not to raise, but to confirm a presumption. Roper on L. 272-3-4:, and cases there cited. In 2 American Lead. Cos. 435, the cases are collected, and the admission of such testimony seems to be very firmly settled upon authority. In Ores- ley's Eq. Ev.) 213, it is said the 'reason is shortly this : If a person who has inserted in his will a legacy for a par- ticular purpose, afterwards executes that purpose himself in his lifetime, he is presumed to have intended to cancel the legacy, which is consequently held to be adeemed. Secondly, a father leaving a legacy to a child, is presumed to have intended it for the particular purpose of fulfilling his moral obligation of portioning that child. It follows that parol, or any other kind of extrinsic evidence, may be adduced to prove that he did or did not, intend that legacy as his child's portion, or that he did or did not, intend to cancel it. In this case, it only became necessary for the executor to offer parol evidence, in answer to that which . the com- plainant introduced to rebut the presumption which was in favor of the executor, that the legacy was satisfied by the advancement. The case was with the defendant with- out his being obliged to resort to such evidence. If it was proper for the complainant to overcome this presumption by parol, it was equally proper for the defendant to resort 164 CASES IN CHANCERY. Lippincott v. Ridgway. to the same kind of testimony in reply. In either event, excluding the evidence or admitting it, the executor is entitled to a decree in his favor. This course came up on a rehearing ; and upon a review of the case, I do not think the burthen of the whole costs of the suit should fall upon the complainant. The former decree, made by the late Chancellor, was, if my views are correct, erroneous. It was the result, I think, of a misap- prehension of the case, which arose from the manner in which the case was submitted, the real points in contro- versy not having been presented to the court . The bill must be dismissed with costs, not including the cost upon the first hearing, or that attending the opening of the first decree. WALLACE LIPPINCOTT and others vs. AQUILLA S. RIDGWAY and REBECCA ZILLY. Hope Cowperthwait, by her will, directed her trustees to pay a certain fund, as follows : "unto such of the brothes and sisters of my daughter Hannah and their children ; and in such proportion as may said daughter H. shall, by her last will and testament, or writing in nature thereof, signed by her hand, and attested by two credible witnesses, direct and appoint. This language gives to the donee a discretion as to a selection between the objects named. After the language quoted above, follows "my will being that my said daughter shall in such case have power to dispose of the same among her brothers and sisters,and their children, in such proportions as she may think fit, but to no other person or persons whatsoever." This limited the power of appointment, and entitled each of the brothers and Bisters of Hannah Lippincott to a portion of the fund. J. P. Bradley, in support of demurrer. A. Browning, contra. THE CHANCELLOR. The question in controversy arises upon the tenth item, or clause, in the will of Hope Cow- MAY TEEM, 1854. 165 Lippincott v. Ridgway. perthwait, late of the county of Burlington, deceased. The clause of the will is as follows : " Fourth. I give and bequeath unto my son "Wallace, and my grandson, Aquilla S. Ridgway, and to the survi- vors of them, and to the executors, administrators, and assigns of such survivor, the remaining equal fourth part of the rest, residue, and remainder of my personal estate, whatsoever and wheresoever, upon and for the trusts, in- terests, and purposes, and with and subject to the powers and proviso herein after mentioned and expressed of and concerning the same, that is to say upon trust, that they, the said Wallace Lippincott and Aquilla S. Ridgway, and the survivor of them, and the executors, administrators, and assigns of such survivor, shall place the said last men- tioned one-fourth part of my personal estate at interest upon good and sufficient security, and shall pay all the interest that shall arise thereon yearly, as it shall become due, to my daughter, Hannah Lippiiicott, so long as she shall live. And also in trust, to pay unto my said daughter, Hannah Lippincott, so much of the principal money of the said last mentioned fourth part as my said daughter Hannah shall from time to time, by writing under her hand, and attested by two credible witnesses, require of the said trustees. But in the event that my daughter Hannah shall marry, then it is my will that the in- terest and principal money, above directed to be paid to her be paid into her own hands, for her sole and separate use, and her receipt, notwithstanding her cover- ture, shall be a sufficient discharge to the said trustees there- for. " My intent being that the same shall in no wi.se be subject to the contracts, debts, or control of any husband the may marry. " And from and immediately after the decease of my said daughter Hannah, in case she shall marry, and have children living at her death, or descendants of such chil- dren, then it is my will that what shall remain undisposed 166 CASES IN CHANCERY. Lippincott u. Ridgway. OT. of the said last mentioned fourth part of the residue oi my personal estate, with its accumulated interest, shall belong to, and vest in the children of my said daughter Hannah, equally between them, if more than one, to be paid to them as they respectively attain the age of twenty- one years. But if any child of my said daughter Hannah shall die before bearing issue living at the time of the death of the said Hannah, then such issue shall stand in the place of their deceased parent, and take that parent's share, and if more than one, equally between them. " But in case my said daughter Hannah shall die with- out any child, or descendants of such child, living at her death, then it is my will that the said trustees do pay such part of the last mentioned fourth of the residue of my personal estate as may remain undisposed of at the time of the death of my said daughter Hannah, with its accu- mulated interest, unto, such of the brothers and sisters of my said daughter Hannah, and their children, and in such proportions as my said daughter Hannah shall, by her last will and testament, or writing in nature thereof, signed by her hand, and attested by two credible wit nesses, direct and appoint : my will being that my said daughter Hannah shall in such case have power to dis- pose of the same among her brothers and sisters, and their children, in such proportions as she may think fit, but to no other person or persons whatsoever. And in case my said daughter Hannah shall die not leaving any child at her death, or descendant of such child, and without having made such appointment and disposition of what shall then remain undisposed of, of the said last mentioned fourth part of the residue of my personal estate as she is above empowered to make, then it is my will, and I do hereby direct the said trustees to pay the same unto the brothers and sisters of my said daughter Hannah in equal proportions, the share of such of the sisters, however, as shall then be married, to be paid to their trustee for their separate use, free from their husbands' control, the chil- MAY TEEM, 1854 16T Lippincott v. Ridgway. dren of any deceased brother or sister to stand in the place of his, her, or their parent, and take that parent's share equally between them, if more than one." The one-fourth part of the residue of the personal estate of the testatrix amounted to the sum of nine thou- sand two hundred and eighty-nine dollars. This sum, to- gether with considerable interest which had then accrued thereon, the executors paid over to Aquilla S. "Ridgway, as surviving trustee, who held the same during the life- time of Hannah Lippincott. Hannah Lippincott died in the year 1849. She made no disposition of the trust fund during her lifetime. She drew from the hands of the trus- tee a part of the interest only. It is alleged that, at the time of her death, the principal money, with the accumu- lated interest in the hands of the trustee, amounted to the sum of twenty-five thousand dollars. Hannah Lippincott left a will, which had been subscribed in the presence of two witnesses. By her will, after reciting therein, in part, the bequest of Hope Cowperthwait of the undivided fourth part of her personal estate in the said trust, and that the whole of the said one-fourth part of the said re- sidue then remained undisposed of, and had been largely increased by interest, and remained in the hands of Aquilla S. Ridgway, as surviving trustee, did, " of and concerning the said one-fourth of said residue, and accumu- lated interest thereon, give, order, direct, limit, and ap- point, that the said Aquilla S. Ridgway, trustee as afore- said, should pay to Rebecca Zilly, out of said residue and accumulated interest, the sum of one hundred dollars, and should retain all the residue thereof to and for his own use." Rebecca Zilly, one of the defendants, is the only sur- viving sister of Hannah Lippincott. The complainants, Mary S. Ilaines, Wallace Lippincott, and Sarah Ann Pan- coast, are the only children of Wallace Lippincott, de- ceased. Aquilla S. Ridgway, the defendant, is the only child of Martha Woolston, deceased, who was a sister of 168 CASES IN CHANCERY. Lippiiicott v. Ridgway. Hannah Lippincott. The complainants are entitled to one-third part of the fund in dispute, if Hannah Lippin- cott has failed to execute the power conferred upon her by the will of Hope Cowperthwait. These facts are stated by the bill. They are to be assumed as true, upon the de- cision of the case upon bill and demurrer. But a single question is involved, whether the will of Hope Cowperthwait gave to Hannah Lippincott the power of exclusive appointment, by last will, as to her brothers and sisters, and their children ? The donee's construction of the power was, that it did ; and with that view, she has attempted to execute it. At her decease, she left one sister her surviving, two nieces, and two nephews. To the two nieces, and to one of the nephews, she appointed no part of the fund. She has exercised the appointment as an exclusive one. The complainants contended, that all the objects of the appointment referred to are entitled, by the power of appointment, to some substantial portion of the fund, and that not having received it, there is a de- fective execution of the power, and that the fund must be distributed as Hope Cowperthwait directed it should be in the event of Hannah Lippincott's dying not leaving any child, and without having made such appointment and disposition of the fund by last will as she was em- powered to do. The intention of the donor of the power must be car- ried out. As there is nothing before the court from which that intention can be ascertained, except the seventh item or clause of the will, that must be our only guide in seek- ing for the intention. There are no technical rules to em- O barrass the court in giving a construction to this power. There are numerous authorities in the books where con- structions have been given to powers of appointment very similar to the one before us. Most of them are collected in Sugden on Powers, 5, 561. The difficulty in this case has arisen from the fact, that the donor, after creating a power free from ambiguity or doubt, proceeded herself to MAY TEEM, 1854. 169 Lippincott v. Ridgway. declare what she intended by that power, and which in- tention was at variance with the power previously created by the natural and plain import of the language employed. In the first place, she directed her trustees to pay the fund " unto such of the brothers and sisters of my daughter Hannah, and their children, and in such proportions as my said daughter Hannah shall, by her last will and tes- tament, or writing in nature thereof, signed by her hand, and attested by two credible witnesses, direct and ap- point." If the will had stopped here, no difficulty could have arisen. It is manifest that a discretion is given to the donee, as to a selection between the object named, the appointment was to be made unto " such " of the brothers and sisters and their children, as she should di- rect and appoint. This language created an exclusive power of appointment. But it was said that the appoint- ment was to be made to the objects named in " such pro- portions" as the donee should direct and appoint., and that the words " such proportions" could not be applicable, if only one of the objects named could be selected. But the phraseology must not be taken in detached parts. If the language had been " unto such of the brothers and sisters of my daughter Hannah, and their children, in such pro- portions as she by last will shall direct," her discretion would have extended to the proportions only. But the language being to such of the brothers and sisters, &c., and in such proportions as she by last will shall direct," the discretion of the donee is not limited to the proportions, but extends to the objects of the appointment also. In Wollen v. Tanner, 5 Ves. jun. 218, the language of the power was " unto and amongst all such child or children of Susannah Wollen (wife of Thomas Wollen the elder, and daugther of Elizabeth Winter,) in such parts, shares, and proportions, manner and form, as James Winter should, by any deed or deeds, &c., direct, appoint," &c. Not only the word all was urged as an argument against an exclusive appointment, but the words parts, shares, and VOL. ii. p 170 CASES IN CHANCERY. Lippincotfc v. Ridgway. proportions. The Chancellor said, the fault of the plain- tiff's argument is, that they stop at the word " all." They mnst go on, and finish the sentence ; and then it is " all such child or children as he shall appoint." It was further argued, that an exclusive appointment would not answer the language " unto such of my brothers and sisters ;" that the language is imperative that a brother must have some of the fund and a sister some ; and that if the donee could appoint exclusively to a brother, the in- tention of the donor would be defeated, because the "sisters" as well as brothers, are included in the Ian guage used. But it is impossible to give this force and effect to the conjunction " and" without depriving the word " such" of all pertinence in the sentence. In the case of Swift on the demise ofHuntley and wife v. Gregson 1 T. It. 432, under the power of appointing a real estate " to the use of such child and children, and for such estate and estates and purposes as the husband should appoint," and in default of appointment the estate was limited to the use of all and every child and children of the marriage in fee, the word or was read for and, and an exclusive ap- pointment was held to be good. But in this case the donor has chosen to give her own interpretation to the language used, and has declared the construction to be put upon the power. This she had a right to do. Her language is, " my will being that my said daughter shall in such case have power to dispose of the same among her brothers and sisters, and their children, in such proportions as ehe may think fit, but to no other person or persons whatsoever." It was argued on behalf of the defendant, that this was not intended to qualify or 1 imit the power of appointment previously conferred, but was meant only as a more emphatic designation of the objects to which the appointment was to be confined. But the language is too direct and unequivocal to admit of this construction. She used the word among her brothers and sisters, which is inconsistent with an exclusive ap MAY TEEM, 1854. 171 Gifford v. N. J. Railroad Co. pointment, standing, as this word does, without any quali- fications of its natural import and signification. The po- sition of the word " such" in the sentence confines the direction of the donee to the proportions. She in fact de- clares, that when she used the word such in the preceding sentence, she meant it to qualify "proportions" and not the objects of the appointment. My opinion therefore is that the power lias not been properly executed, and that the brothers and sisters of Hannah Lippincott were, each and all of them, entitled to a portion of the trust fund under an execution of the power. Hannah Lippincott having failed to execute the power, the surviving trustee must pay the trust fund to the complainants and Rebecca Zilly in equal proportions, in conformity to the directions of the will of Hope Cowperthwait. The demurrer must be overruled with costs. ARCHER GIFFORD vs. THE NEW JERSEY RAILROAD AND TRANSPORTATION COMPANY and others- A court of equity will interfere on behalf of a single stockholder, if he can show that the corporation are employing their statutory powers, funds, &c., for the 'accomplishment of purposes not within the scope of their institution, and an injunction in such cases will be granted. But it is well settled that, acting within the scope and in obedience to the provisions of the constitu- tion of the corporation, the will of the majority, duly expressed at a le- gally constituted assembly, must govern, The legislature may give additional powers from time to time, to corporations ; and acts of the corporation, in pursuance of such authority, are binding, un- less they conflict with vested rights or impair the obligation of contracts. By the supplement to the charter of the Newark and Bloomficld Railroad Com- pany, passed March 150th, 18.W, 3, it is enacted, that nothing in the sup- plement contained shall be construed to impair, in any manner, any rever- sionary interest or vested right which the state, or any incorixn-aed company or companies, or any individual may possess under the charter of the Bridge Company. This Provision is also, in effect, contained in the constitution. A stockholder of the Bridge Com]>any has a vested right in tho value of his 172 CASES IN CHANCERY. Gifford v. N. J. Railroad Co. stock and interest in the franchise of exclusive tolls, and, as amU?/ > to This, an interest in the exclusive right of building bridges over the rivei 4 fossaic and Hackensack. Any act of the incorporation impairing these rights of astookholdtfkVJ without his consent, either express or implied, would not be binding on him under the above provisions, except in a proceeding authorizing the taking of pri- vate property for public uses upon making compensation. But long acqui- escence will be considered as equivalent to a consent, and whatever ground of equity an individual stockholder may have had, a counter equity may arise from lapse of time. The supplement to the Newark and Bloomfield Railroad Company does not contravene the article of the constitution of this state, which declares that every law shall embrace but one object, and that shall be expressed in the title, as the objects in the statute are parts of the same enterprise, and have a proper relation to one another. The complainant filed his bill for an injunction to re- strain the New Jersey Railroad Company from building a bridge, on the ground that it would impair his vested rights, as a stockholder in a bridge company, and depre- ciate his stock. The case is sufficiently stated in the ad visory opinion of Robert Vanarsdale, esq., master, called to advise with the Chancellor in the case. THE MASTER. The New Jersey Railroad and Transporta- tion Company, by their charter, March 7th, 1832, were au- thorized to construct their road from New Brunswick to some convenient point on the Hudson river opposite the city of New York, also to purchase the turnpike roads and bridges on the route of their railroad, and all or any of the stock of such companies, and to construct such bridges over the Passaic and Hackensack, with the consent of the Bridge Company, as might be necessary for the enjoying the privileges of the act of incorporation. November 21st, 1832. The New Jersey Railroad Com- pany agreed with the proprietors of the bridges over the rivers Passaic and Hackensack to buy the stock of such of the stockholders of the latter company as desired to sell at $150 per share, and were permitted to constnict a passage way over said rivers, either alongside of or over said bridges, so as not to interrupt the travel over the same. MAY TERM, 1854. 173 Giffordrc. N. J. Railroad Co. Of the 1000 shares of stock of the Bridge Company, 932 were purchased by the New Jersey Railroad Company, and ten more are held, by several individuals, in trust for the Railroad Company. Bridges were constructed, in pursuance of said agree- ment, over the Passaic and Hackensack, and have been used to the present time by the Railroad Company for the purposes of their road. The Morris and Essex Railroad, which terminates at Newark, connects, also, at that place with the New Jersey Railroad, and thence the company's trains of cars pass over the latter road to Jersey City. March 20th, 1852. The Bloomfield Railroad was char- tered, and by a supplement, passed February 4th, 1853, they were authorized to construct a bridge over the Passaic river, and connect with a branch with the New Jersey Railroad, by agreement with the latter company. The New Jersey Railroad Company were also, by the same supplement, authorized to build such bridge and branch road, the river to be crossed at a point not less than 200 yards above the turnpike bridge on said river. October 13th, 1853. The New Jersey Railroad Company agreed with the Morris and Essex Railroad to build, with the consent of the Bridge Company, a bridge over the Passaic river, at the foot of Division street, and a branch road connecting with their main road, so that the trains of the Morris and Essex Railroad could pass witli their locomotives, without detaching them as heretofore, and' passing through Newark with horses to the New Jersey Railroad junction. December 30th, 1853. The Bridge Company, at a meet- ing for that purpose, gave their consent to the New Jer- sey Railroad Company to build the bridge in question by a vote of all the stockholders present at the meeting. The complainant,. who is a stockholder in the Bridge Company and the owner of ten shares of stock, having inistaken the hour of the meeting, did not reach the place of meet- p* 174 CASES IN CHANCERY. Gifford v. N. J. Railroad Co. ing until after the adjournment, and offered a written pro- test against the proceedings of the meeting, which was not received, on the ground that the meeting had ad- journed. The complainant files his bill for an injunction to re- strain the New Jersey Railroad from building the bridge, on the ground, that it will impair his vested rights, as a stockholder in the Bridge Company, and depreciate his stock. It is a bill filed by a single stockholder, dissenting from the act of a majority of the corporation. It is well settled, " that a court of equity will interfere on behalf of a single stockholder, if he can show that the corporation are employing their statutory powers, funds, . Ely. existing indebtedness, and to secure such further credit as the defendants would give him for goods, and such ad- vances in money as they might make him for his accom- modation, to secure them by a confessed judgment ; that after considerable negotiation, it was agreed that Park- hurst should confess a judgment for ten thousand dollars te the defendants, in consideration of his then indebted- ness of three thousand and sixty-two dollars and ninety- iive cents, and that the defendants should advance to him money and goods from time to time, as he should desire the same, to the amount of the difference between the sum last named and the sum for which the judgment was to be confessed ; that to carry out this arrangement, the defendants gave to Parkhurst their note for six thousand nine hundred and fifty-seven dollars and six cents, as a security to him for their making the advances, and for giving credit for goods, as agreed between them, with the understanding, that as advances were made, and the goods delivered, corresponding endorsements should be made on the note ; that under this arrangement the judgment was confessed, and the defendants advanced Parkhurst in cash five thousand nine hundred and sixty-five dollars and seventy-two cents, and in goods two hundred and thirteen dollars and seventy-five cents, making, with the original indebtedness, the sum of $9242.42. On behalf of the complainants, it is insisted First. That the character of the transaction, as revealed by the answer, justifies a well founded belief that the judgment was conceived in fraud, and was designed for some fraudulent purpose, and therefore the court should retain the injunction and afford an opportunity for further investigation. Second. That the judgment was confessed in contra- vention of the statute, and it is therefore void in toto, or if not in whole, then as to all except the sum of $3062.95, the amount of indebtedness actually due from Parkhurst at the time the judgment was entered. MAY TERM, 1854. 183 Clapp v. Ely. I can see no reason to doubt, from anything that ap- pears on the face of the answer, but that the defendants took their judgment in good faith to secure a debt hon- estly due them, and to protect them in such further ad- vances they might make to their debtor. It is not alleged in the bill that Parkhurst was in failing circumstances at the time ; and what inducement the defendants could have had to enter into a scheme with Parkhurst to com- mit a fraud upon his creditors, is left to conjecture. The charges in the bill, as to a design of the defendants to defraud Parkhurst, by breaking their agreement with him as to make advances, and in enforcing the judgment and execution, so as to embarrass and ruin of him, are de- nied by the answer ; and there is, I think, enough in the whole case to corroborate the answer in this respect, and to justify me in giving to it the most implicit confidence in this particular. The fact, that in less then ten days after their judgment, the defendants were obliged to advance the sum of fifty-eight hundred dollars and upwards, in order to protect the very goods upon which they had a levy, for their security, and that in less than ten days after that Parkhurst confessed the judgments to the complain- ants, show that Parkliurst's case was beyond any relief the defendants had engaged to afford him. Again. AVas the judgment confessed in contravention of the statute ? and if it was, is that' any ground for the interference of this court in aid of the complainants ? Here is a judgment of a court of law, whether con- fessed before a judge at chambers or in open court does not appear ; but that it is a judgment of a competent tri- bunal, is not denied. The statute declares, " that no judg- ment shall be entered in any court of record of this state on a warrant of attorney to confess judgment, or by the defendant appearing in person in open court and confess- ing the same, unless the plaintiff, or his attorney, shall produce, at the time of confessing such judgment, to the court, judge, or justice, before whom the judgment shall 184: CASES IN CHANCERY. Clapp. v. Ely. be confessed, an affidavit of the plaintiff, his attorney or agent, of the true consideration of the bill, bond, deed, note, or other instrument of writing or demand for which the said judgment shall be confessed ; which affidavit shall further set forth, that the debt or demand for which the judgment is confessed is justly and honestly due and owing to the person or persons to whom the judgment is confessed, and that the said judgment is not confessed to answer any fraudulent intent or purpose, or to protect the property of the defendant from his other creditors." It is said that the defendants in this case could not have made affidavit required by the statute ; that a judg- ment cannot be confessed for future advances, because the plaintiff cannot swear "that the debt is justly and honestly due and owing," and that, therefore, this court ought not to allow the defendants to enforce their judg- ment to the prejudice of the complainants. It does not appear that there was any affidavit in this case. Suppose there was not, the judgment is neither void as to the par- ties to it, nor void or fraudulent as to third persons. It is a valid judgment, and must be respected as such by all courts, until it is set aside by a competent tribunal. This court has no right to impeach its validity on such a ground. The only ground of jurisdiction in this court to interfere with the judgment, is that it is fraudulent. To detect the fraud, the court may go behind the proceedings, and may test the consciences of the parties to it, and declare it fraudulent, if the debt for which it is confessed is not an honest one, or if it is confessed for any fraudu- lent intent or purpose. But this court cannot declare the judgment void as against creditors, simply because the judge or court has suffered it to be entered up in viola- tion of the statute. If the court, or judge, has in this case allowed a judgment to be entered up, for the pur- pose of securing future advances to be made by the plain- tiffs in the judgment to the defendant, this court has no right to say that the court of law erred in judgment, and MAY TEEM, 1854. 185 Clapp v. Ely. that the judgment is void and fraudulent as against other creditors. It is the conscience of the party which this court is to test, and not the legality of the judgment, or t~ correct the error of the court of law. If it is said, that the judge or court had before them an affidavit, which in terms complied with the statute, but which the discovery n }w made shows was untrue, and that this court can now do, for the purposes of this suit, what the court of law could not do, look behind the affidavit, my answer is, it does not appear but that the affidavit, if there was any, disclosed the' very facts contained in this answer, and that the court did adjudicate that a judgment might be con- fessed for just such a demand as the plaintiff in the judg- ment had against the judgment debtor. If the judgment was not confessed for any fraudulent purpose, if it was confessed bona fide, this court ought not to interfere with the plaintiffs in the judgment collecting what is due upon it. I think the defendants are entitled to the benefit of their judgment, and that it must stand for the full amount of the advances they made upon it. To this extent the judgment must be dissolved ; but as the proofs may show that the amount claimed by the defendants is not all due to them, they must give security to refund any part of the amount realized which may be found not to be due. Let an order be made directing the sheriff to sell, and to pay over to the defendants the sum of nine thousand two hundred and forty-two dollars and forty-two cents, with interest and costs, taking from the defendants suffi- cient security to refund any part of the same, if upon the final determination of the case, the whole of that amount may be ascertained not to be due to them. CASES ADJUDGED OT THE COURT OP CHANCERY OF THE STATE OF NEW JERSEY, OCTOBER TERM, 1854. In the matter of DANIEL YANATTKEN, an alleged lunatic. A person on trial under a commission of alleged lunacy has a right to be present at the trial to make his defence, by himself or counsel, and to ex- amine witnesses. In case of confirmed and dangerous madness, notice may be dispensed with, but then only by the express order of the court. No specific time is fixed by the practice of the court. It must be a reasona- ble notice. A notice given on Saturday, of the execution of a commission on Tuesday following, is insufficient. But when the alleged lunatic appears upon such notice by counsel, and makes no objection, but consents to an adjournment for a future day, the insufficiency of notice is thereby waived. The court, however, will relieve the petitioner, if through inadvertence or mistake he has been prejudiced, but not unless such mistake or prejudice clearly appears. The oath of his counsel, that he was prejudiced, without stating in what particular, is not enough. Exceptions stated to the general rule, that the opinion of a witness is not competent evidence to go to the jury. The charge of the commissioner to the jury in this case given, and ruled to be correct. Whether the alleged lunatic may traverse the inquisition, is a matter ad- dressed to the discretion of the court, and if upon a review of the evidence there exists a reasonable doubt as to the correctness of the finding, the traverse should be allowed. OCTOBER TERM, 1854. 1ST Vanauken, an alleged lunatic. A mere failure of memory and decay and feebleness of the intellectual facul- ties are not evidences of that unsoundness of mind which will justify a jury in finding a man a lunatic. To warrant this, they must be such as to im- port a total deprivation or suspension of the ordinary powers of the mind. The question, what constitutes unsoundness of mind considered. A petition for a traverse should not be sworn to by the lunatic. But the court should be satisfied that it is in truth the petition of the alleged lunatic. Ordered, in this case, that the petitioner be produced before the Chancellor for examination, to ascertain whether he understood the character of the petition, and desired to traverse. On the 20th of April, 1854, a commission, in the nature of a writ de lunatico inquirendo, issued out of this court, directed to James Lain, Moses Dunning, and David Thompson, esquires, directing them to inquire into the alleged lunacy of Daniel Vanauken. On the 13th of May, the commission was executed, and the jury found that the said Daniel Vanauken was, at the time of taken the in- quisition, a lunatic and of unsound mind, and that he had been in the same state of lunacy for the space of three years then last past. Twenty-one jurors were sworn. Twenty signed the return. On the 9th of June, the alleged lunatic filed the follow- ing petition : In Chancery of New Jersey. In the matter of Daniel Vanauken, a person found to be a lunatic and of unsound mind. To the Honorable Benjamin "Williamson, Chancellor of Kew Jersey. The humble petition of the said Daniel Vanauken showeth : That by an order made in this matter, on the twentieth day of April last, it was ordered that a commission in the nature of a writ de lunatico inquirendo should issue to in- quire of the lunacy of your petitioner, the said Daniel Van- auken. That by the inquisition taken on the execution of the said commission, on the ninth, twelfth, and thirteenth 188 CASES IN CHANCEKY. Vanauken, an alleged lunatic. days of May, instant, it was found that your peti< oner was a lunatic and of unsound mind, and that he had been in that condition for the space of three years then next pre- ceeding and upwards. That your petitioner is advised that the finding of the jury upon such inquisition was against evidence and con- trary to law, and your petitioner is greatly aggrieved and prejudiced by the issuing of the said commission and. the return of the said inquisition, and that your petition 2r is of sound mind, and perfectly competent and sufficient for the government of himself and his property. And your petitioner would state the following excep- tions to the said commission, and the proceedings the) eon, which exceptions he is advised are good and sufficient in law. First. Because no sufficient notice of the time and ] lace of executing the said commission was given to your peti- tioner, the notice having been served on Friday evening, the fifth of May, of the execution of the commissk n on Tuesday, the ninth of May, in the morning, being only two entire days, exclusive of Sunday, by means whereof your petitioner, residing at a considerable distance from counsel, had not sufficient time and opportunity to prepare his defence. Second. Because the commissioners allowed as evidence, on the execution of said commission, against the objection of your petitioner's counsel, the opinions of witnesses, who were not medical men or experts in questions of lunacy, as to the lunacy of your petitioner, and his competency to transact business, without confining the testimony of said witnesses to facts. Third. Because the commissioners charged the jury, that enfeeblement of the memory w r as included in the term lu- nacy, and if made out was sufficient to support a finding of lunacy. Fourth. Because the said commissioners charged the jury, that the term lunacy included dementia, . and that if OCTOBEK TEEM, 1854. 189 Vanauken, an alleged lunatic. the first degree of dementia, to wit, that arising from loss of memory, was made out, it was sufficient to make out the case without evidence of a want of proper manage- ment of jour petitioner's person and property. Fifth. Because the evidence taken on the execution of the said commission proved nothing more than a partial failure of memory, mere forgetfulness, and did not prove a failure of judgment or of reasoning faculties of your petitioner, nor any improper management of your peti- tioner's person or property, and the finding of the jury was contrary to law and evidence, unnecessarily affecting the rights and liberty of your petitioner. Your petitioner therefore prays your honor, that he may be at liberty to traverse the said inquisition, and that such traverse may be tried in the Supreme Court of this state, and in the county of Sussex, or that a new commission may issue in the premises, or that your honor will be pleased to make such further or other order herein as to your honor may seem meet. And your petitioner will ever pray, &c. Dated May 31st, 1854. DANIEL YANAUKEN. The case was elaborately argued by M. Ryereon^ for petitioner. James Wifeon, contra. THE CHANCELLOR. The petitioner, who is the alleged lunatic, asks that the inquisition taken may be set aside, and a new commission issued ; or in case this should be refused, that he may be permitted to traverse the inquisi- tion. There are several reasons assigned in the petition for setting aside the inquisition. I will examine them briefly in their order. First. Because there was not sufficient notice given to 190 CASES IN CHANCERY. Vanauken, an alleged lunatic. the petitioner of the time and place of executing the com- mission. The alleged lunatic has a right to be present at the ex- ecution of the commission, to make his defence by him- self or counsel, and to examine witnesses. The effect of a finding against him is to deprive him of the control of his property and of his personal liberty. Such consequences cannot follow, except upon the verdict of a jury ; and no such verdict should be permitted to pass against any man without affording him an opportunity of defending him- self; except in extreme cases, when such notice would be nugatory. In cases of confirmed and dangerous madness it may be dispensed with, but then only by the express order of the court. IZusseVs case, 1 Barb. C. R. 39. In the case of Whitenack, 2 Green? s C. R. 252, it was decided that reasonable notice of the time and place of taking of an inquisition of lunacy should be given to the alleged lunatic ; and that the want or defect of notice is not aided by his appearing before the jury, and attempting a de- fence. The specific time to which the party is entitled to notice is not fixed by any rule or by the practice of the court. It must be a reasonable notice, such as will give to the party a fair opportunity of preparing his defence. If the notice in the particular case has been so short as ac- tually to deprive the petitioner of this opportunity, he ought not to be concluded by a finding against him. In this case the venire was issued on Friday, the fifth of May, returnable on the following Tuesday. Notice was served on the petitioner the day after the venire was issued. This notice was entirely insufficient, and would be deemed so even without an affidavit showing that the party had been prejudiced by it. But on the ninth of May, the pe- titioner appeared by counsel. No objection was made to the notice, and, by mutual consent, there was an adjourn- ment to the 17th of May. The petitioner, by his counsel, having consented to the adjournment without making any objection to the notice, thus fixed his own time, and OCTOBER TERM, 1854 Vanauken, an alleged lunatic. ought not now to be psrmitted to avail himself of the in- sufficiency of the notice, unless the court can see that, through some inadvertance or mistake on his part, the petitioner has, by the limited time afforded hkn for pre- paring his defence, been prejudiced at the hearing. Mr. Sheppard, his counsel, swears that he verily believes that had the same Daniel Vanauken had a longer time to pre- pare his defence than the two days that was given him, he could have made a more successful defence before the jury ; and he judges so from facts that have come to his knowledge since the trial, and from information that he has received from the said Daniel Vanauken, in talking with him since the trial. Now the notice was served on the sixth of May, and the hearing commenced on the 13th of that month, so that instead of the petitioner having only two days he had six, exclusive of Sunday, to pre- pare his defence. He had two counsel present before the jury, and all the time they asked for was granted them. The objection, under the circumstances, is not well taken. Another objection is made as to the manner in which the commission was executed, that the commissioners, against the objection of counsel, allowed as evidence the opinions of witnesses, who were not medical men or ex- perts, as to the lunacy of the patitionsr, and as to his com- petency to transact business. The general rule is, that the opinion of a witness is not evidence to go to a jury. There are exceptions to the rule. In matters of science and trade, a person skilled in the particular science or trade may not only speak as to facts, but may give his opinion in evidence; and even further than this. A medical man is not only permitted to give his opinion as to the state of a patient whom he has seen, but he will be permitted, after hearing a detail from other witnesses of the symptoms, to give his opinion of the nature and character of suclf symptoms. To these may, I think with propriety, be added a further exception. 192 CASES IN CHANCERY. Vanauken, an alleged lunatic. that the opinion of a witness is admissible where its pro- priety is apparent from the nature of the case. As in the case of insanity, a witness may state facts, may give the look of the eye, and the actions of a man, but unless he is permitted to tell what they indicate, or, in other words, be permitted to express an opinion, he cannot convey to the mind distinctly the condition of the man that such acts and looks portray. As rebutting testimony, it is cer- tainly competent to ask a witness whether, in his opinion, the subject is not of sound mind ? The weight or value of an opinion is a very different thing from its admissibility as evidence. Unless the witness gives facts upon which his opinion is founded, then such opinion ought not to be admitted as any evidence. I believe such has been the rule adopted by the courts in New Jersey. In the case of WJiitencbck v. /Stryker and Vborhees, 1 G. C. JR. 8, where a will was contested on account of the incapacity of the testator, the opinions of witnesses were admitted as evi- dence. The Chancellor, in laying down the principles of law to govern that case, remarks : " that the opinions of witnesses, other than the testamentary witnesses, as to the capacity of the testator, are to be received as the slight- est kind of evidence, except so far as these opinions are based on facts and occurrences which are detailed before the court." In the case of Sloan v. Jfaxwett and others, 2 G. C. R. 563, Chief Justice Ewing, who, as master, sitting with Justice Drake, gave an advisory opinion to the Chancellor, says : " The mere opinions of witnesses are entitled to little or no regard, unless they are sup- ported by good reasons, founded on facts which w r arrant them, in the opinion of the jury. If the reasons are fri- volous or inconclusive, the opinions of the witnesses are. worth nothing." In this case the commissioners permitted witnesses who had been long acquainted with the petitioner to give their opinions as to the soundness of his mind, and to detail the facts and circumstances within their own knowledge OCTOBER TERM, 1854. 193 Vanauken, an alleged lunatic. upon which such opinions were based. I do not think they erred in admitting such evidence. A further exception stated in the petition is, because the commissioners charged the jury, that enfeeblement of the memory was included in the term lunacy, and if made out was sufficient to support a finding of lunacy ; and because they also charged the jury, that the term lunacy included dementia, and that if the first degree of demen- tia, to wit, that arising from loss of memory, was made out, it was sufficient to make out the case, without evi- dence of a want of proper management of person and property. The exception would be a good one, if it were true in point of fact. The affidavit of Mr. Thompson, one of the commissioners, is before me. He states that the charge was reduced to writing by himself, and that, with the ap- probation of the other two commissioners, he delivered the same to the jury. He says, " the jury were referred to the account given in Dean's Medical Jurisprudence of the symptoms existing in the different degrees of senile dementia, as there arranged, and which had been referred to by the counsel of Daniel Vanauken, and were told that it was not necessary that all the characteristics of demen- tia, mentioned by the author arising in the four different degrees of dementia, should concur at the same time in one individual, in order to constitute dementia. The jury were further charged, that the term lunacy included both classes of mental alienation, mania and dementia, and that if the jury believed, from the evidence, that such unsound- ness of mind existed in the case of Daniel Vanauken as rendered him incapable of managing his affairs, and that this unsoundness was caused by dementia, or other mental alienation, they might find him a lunatic and of unsound mind." This charge violates no principle of law, and the exception, therefore, is not well taken. I can see no just cause for setting aside the inquisition on account of any- thing that occurred in the execution of the commission. VOL. n. K 194: CASES IN CHANCEKY. Vanauken, an alleged lunatic. The petitioner further asks, that he may be permitted to traverse 'the inquisition, and this is the only question remaining to be disposed of. It is addressed to the sound discretion of the court ; and, if, upon reviewing the case as it is before me, a reasonable doubt is raised as to the petitioner being a lunatic, the traverse should be allowed. The evidence that was taken before the jury was not reduced to writing ; but the affidavits of the witnesses who were examined have been since taken, and I presume the case, as it appeared before the jury, is fairly pre- sented. The petitioner is an old man, nearly eighty years of age. lie is the owner of a large farm in the county of Sussex, which he has occupied and carried on for many years. This appears to have been his only occupation and business. If he is of unsound mind, it is the effect of old age. His mind has not been shattered by any disease which has affected his body, or by any shock proceeding from accident or misfortune of any kind. The witnesses all speak of his failure of memory, and deduce their opin- ions simply from this criterion. He seems to have been actively engaged upon the business of his farm up to the time of taking the inquisition. There is evidence of his transacting business with his neighbors, in which he ex- hibited ordinary prudence and judgment. He has had the control of his property, and been associating with his relatives and neighbors, and yet there is no evidence of his disposing of any of his property indiscreetly, or of entering into any engagements showing a want of judg- ment. Although a number of witnesses express the opin- ion that he is incapable of managing his affairs, yet no one instance is given by any of them showing such inca- pacity. The reasons they give for their opinions are founded upon the mere fact of a partial failure of mem- ory. This defect the old man seems to be aware of him- self. He has mind enough to be sensible of this defect, and to acknowledge it. A mere failure of memory and OCTOBER TEEM, 1854. 195 Vanauken, an alleged lunatic. decay and feebleness of the intellectual faculties are the natural concomitants of old age. They are not the evi- dences of that unsoundness of mind which will justify a jury in finding a man a lunatic. To warrant this, they must be such as to import a total deprivation or suspen- sion of the ordinary powers of the mind. " Being non compos, of unsound mind, are certain terms in law, and import a total deprivation of sense : now weakness does not carry this idea along with it ; but courts of law un- derstand what is meant by non compos or insane, as they are words of a determinate signification." Ex parte JSurn- stay, 3 Afk. 168. Old age has evils enough, without add- ing to the misfortunes which usually accompany it. To deprive an old man of the control of his property, is to strip him of the only means he has left of commanding that respect and attention which is all that renders his life endurable. A court should exercise great care to see that mere old age and its attendant infirmities are not made the pretexts for establishing that unsoundness of mind which will deprive a man of his liberty and his prop- erty. In England the jurisdiction of the court is more extensive. The statute 11 Geo. 4, and 1 William 4, c. 60, gives a power to issne a commission of lunacy in all cases where an individual is incapable of managing his affairs, although he be neither an idiot, nor a lunatic, nor of un- sound mind, in the strict sense of these terms. I am willing, under all the circumstances of this case, to afford a further opportunity for investigation, if the petitioner is really desirous of a traverse, and has mind enough understandingly to make such a request of the court. This petition is signed by Daniel Vanauken, but is not sworn to by him. I think it is proper that such a petition should not be under oath. But the court should be satisfied that it is, in truth, the petition of the alleged lunatic. He should be capable of understanding the na- ture and object of the petition. Christies caxc, 5 Paige, 242; Shel.on Lun. 118; 1 Collins on Lun. 172. I shall 196 CASES IN CIIANCEKT. Hildreth v. Schillinger. direct the petitioner to be brought before the court, in order that a private examination may be had for the pur- pose of ascertaining whether he understands the object of the petition, and desires a traverse. If the distance of the petitioner's residence from the court makes this incon- venient, I shall direct the examination to be made by some discreet master of the court. CITED i Collins, Matter of, 3 C. E. Gr., 255, DANIEL HILDRETH et al. vs. ISAAC SCHILLEIS-GEE et al. E. E. went to the office of S., a scrivener, who drew her will, and after it was executed, S., at the request of E. E., put it in his private secretary with his private papers for safe keeping. To the knowledge of S., the will was never sent for, or taken away by E. E. , and during frequent conversa- tions between E. E. and S., the will was spoken of. E. E. dies, and S., upon searching for the will, finds it gone from the place where he deposited it, and upon search cannot find it. He states, under oath, that he believes the will to have been clandestinely taken from his secretary ; held, that the presumption is that this was the last will of E. E., and unless that pre- sumption is overcome in some legal way, will be established. The evidence in this case stated, and the reasons given for the conclusion, that the evidence does not overcome the presumption in favor of the al- leged paper being the last will of E. E. There is no reason for the court submitting the question of fact, whether a will has been cancelled, or surreptitiously destroyed, to a jury, where the evidence is such as to create no embarrassing doubt in the mind of the court. The bill was filed, on the 20th of August, 1852, by Daniel Hildreth and Ann his wife, George Bennet and Priscilla, his wife, against Isaac Schillinger and Jane his wife, in order to establish the will of Elizabeth Eldridge, late of the county of Cape May, deceased. The bill charges, that the decedent died seized and possessed of real and personal estate of the value of about two thousand dol- lars; that in the month of May, 1851, the. said Elizabeth made her last will and testament in writing, and signed and published the same in the presence of three subscrib- OCTOBER TERM, 1854. 197 Hildreth r. Schillinger. ing witnesses, and attested' in the manner prescribed by law for devising real estate. The bill sets out a copy of the will, by which it appears that, after ordering all her just debts and funeral ex- penses to be paid, she did give and bequeath to her daughter, Jane S. Schillinger, one of the defendants, a legacy of five dollars ; to her daughters, Ann Hildreth and Priscilla Bennett, two of the complainants, her house and farm, situate in the neighborhood of Fishing creek, in the county of Cape May, New Jersey, equally between them, and to their heirs and assigns for ever ; but in case her said daughter Priscilla should die without lawful heirs of her body, and the said house and farm not being other- wise disposed of at her 'death, then in that case she gives and bequeaths her said daughter P's part, or moiety, to her husband, George Bennett, one of the complainants, dur- ing his natural life, and at his death gives the same moiety to the heirs of the said Ann Hildreth : all her personal estate she gives equally to her daughters, Ann and Pris- cilla. She appoints her two sons in law, the complainants, executors. The bill charges that the said will was drawn by Ezfcji.cl Stevens, an experienced scrivener of Cape May, was executed at his office, and that the said Elizabeth re- quested him to keep the will safely until called for ; that Stevens, in the presence of the said Elizabeth, folded the said will in an envelope, and endorsed on the same " Mrs. Elizabeth Eldridge's last will and testament," and then placed it in his secretary with other valuable papers, and locked the same up ; that the said S. frequently saw the said envelope afterwards where he put it ; that the said Elizabeth departed this life on or about the 24th day of June, 1852 ; that after her decease, the said Stevens went to his secretary to get the will, and deliver it to the ex- ecutors therein named, and could not find it ; he found all the other papers safe, and in the place where he had left them, but the envelope containing the will could not be found ; that he immediately searched and examined all 198 CASES IN CHANCEKY. Hildreth v. Schillinger. his papers, but in vain. The bill charges that the said will has been surreptitiously and clandestinely spoliated, and either destroyed or concealed, and suppressed or lost, so that the same cannot be produced and proved according to the statute of this state. The bill further shows that Elizabeth Eldridge inherited all the real estate of which she died seized of her father ; that before her marriage, and while young, she had a daughter, the said Ann, one of complainants ; that she afterwards married Jacob Eld- ridge, and by him had two daughters, Priscilla, one of the complainants, and Jane Schillinger, one of the defendants ; that for many years before the decease of the said Eliza- beth, there had been an estrangement between her and her daughter Jane ; that she complained frequently of Jane's ill-treating her, and frequently declared her deter- mination not to leave her said daughter anything ; that after the execution of the will, and before the death of the said Elizabeth, one Jacob Schillinger, a son of the said Jane, had, or pretended to have, businctL with the said Ezekial Stevens, and was at the office of said Stevens when said Stevens was from home, and alleging that he wanted some papers which said Stevens had drawn for him, requested that the secretary in which the said will was placed should be opened ; and the family of the said Stevens, having the key, opened the said secretary, and thus the said Jacob had a full opportunity of abstracting and committing a spoliation of said will, and that, so far as complainants have any knowledge or belief, no other person who had any interest in the will had access to the place where it was kept. The bill prays that the said will may be set up and es- tablished as the last will of E. E. ; that the said Ann Hill- dreth may be decreed to hold one half part of the said real estate, and one half the personal, according to the terms of the said will ; that Isaac S. and wife be decreed to release, &c., and that the defendants may be perpetually enjoined from setting up any claim, and from prosecuting OCTOBEE TEEM, 1854. 199 Hildreth v. Schillinger. any action, &c., as heirs at law of the said E. E., for the said lands so devised, &c., and for further relief, f his two daughters, that if the defendant would provide for the said James for the residue of his life, and would pay such debts and liabilities as were then outstanding against him, and would pay off and discharge the expenses of his burial after death, that he, the said James, would assign to the defendants the said bond and mortgage, which pro- position the defendant in good faith and with good and proper intentions accepted, and thereupon and on the same the assignment was made. The defendant alleges in his answer, that from the time of the assignment to the time of the death of said Abbott, he, the defendant, provided for him suitable and sufficient board, clothing, and other necessaries and comforts of life, and paid off and discharged sundry debts and liabilities of the said James Abbott, and is now ready and willing, and at all times has been ready and willing, to pay off and discharge any other debts and liabilities of the said James Abbott (if any there be) ; and also paid off and discharged all the ex- penses of his funeral, and has, in all other respects, kept and performed the said agreement on the part of him, the defendant. The answer admits that James Abbott made the will dated prior to the assignment, but alleges that, after mak- ing the said assignment, having no property, he desired and intended to destroy the will, and for that purpose, on the Tth of April, 1851, said Abbott executed an order upon John Harding, who had the custody of the will, as follows : OCTOBER TEEM, 1854. 247 Fisler v. Porch To Mr. John Harden. Please to let the bearer have that will of mine in your possession, as I have made some other alteration, and I do not wish that will to have any effect. Yours with respect, his Witness present, JAMES >very much weakened by the fact that the witnesses whom : he appeals to for corroboration do not sustain him. Jacob Davis says, that in a conversation with him, he ' told defendant he, witness, understood he owned the bond ; lie replied he did not. He said he had a power of attor- OCTOBER TEEM, 1854. 255 Fisler v. Porch. ney from his grandfather to collect it, and that he could not let him up. He said distinctly, he did not own the bond, but he said nothing further in explanation than that he had a power of attorney from his grandfather to col- lect it. No one but defendant and witness were present at this conversation ; it took place some three years be- fore the evidence was given. Witness never repeated the conversation to any one before giving his evidence. When I remark, that at the very time this conversation is alleged to have occurred, there was a contest going on in refer- ence to the boYid, and that the defendant was then actu- ally claiming it as his own, it is a reasonable conclusion that the witness misapprehended the defendant ; and as the witness gives only the impression made upon him, which was three years previous, we may withold any re- liance upon his testimony without at all impeaching his integrity. The only other witness upon whom the defendant relies is John G. Baker. John G. Baker testifies to a conversa- tion between himself and defendant, when the defendant made declarations in reference to the bond inconsistent with his being the absolute owner of it. But Mr. Baker does not occupy a position to entitle him to the credit of a disinterested witness ; and I think a remark like this may be made of witnesss without casting any. shade upon his character. Where he is interested in the event of a suit, though an interest which does not exclude him as a witness, yet where he entertains inimical feelings of long standing towards the party against whom he is called, where there is a feeling existing between them relating to the very matter in controversy, and where the witness is taking an active part in the suit, such a witness, no mat tor how exalted his character, is not entitled to the credit of a disinterested witness. He sees things and judges ol things through a distorted medium, and it is natural that false impressions should be made upon his mind, which do not bear any more resemblance to the truth, but are 256 CASES IN CHANCERY. Plum et al v. The Morris Canal and Banking Co. et al. rather deepened With their original coloring after years have passed away and the cause of controversy still ex- isting. Mr. Baker's position is a peculiar one. There is an angry contest existing between him and the defendant in reference to the bond, the subject of this suit. The de- fendant has a judgment against him and a levy upon his property : the witness claims that he has an account against James Abbott, which ought to be allowed him, and deducted from this judgment ; the defendant refuses to allow it. The witness procured Joseph Fisler, the com- plainant, to take out letters of administration for the very purpose of insituting this suit and settling the account which the witness has against the estate : the witness' son married the complainant's daughter. I have thus adverted to all the material evidence bear- ing upon the issue in this case, and I am in doubt where the truth of the case lies ; I am in doubt as to whether the assignment was intended as an absolute one, or as a mere authority to enable the defendant to collect the mo- ney. Here is a doubtful matter of fact, one peculiarly fitted for a jury to try. It is the right of the court to di- rect an issue in such a case, and I feel it is my duty to do 'so in this. CITED in Mitter v. Gregory. 1 C. E. Gr. 275; Carlisle v. Cooper, 6 C. E. O. R. 590. STEPHEN H. PLUM and others vs. THE MOKKIS CANAL AND BANKING COMPANY and THE MAYOK AND COMMON COUN- CIL OF THE CITY OF NEWARK. Two complainants with distinct causes of action, alleging distinct injuries, cannot unite in the same bilL To authorize them to join as complainants, their cause of action must be the same, the injury the same, and they must be entitled to the same remedy. The city of Newark has authority, by its charter, to grade and regulate its public highways; the owners of property adjacent to such improvements have no legal claim upon the city for incidental damages. In the exercise of its chartered powers, the city has no right to occupy or appropriate private property without making compensation, nor would its OCTOBEK TERM, 1854. 257 Plum et al v. The Morris Canal and Banking Co. et al. authorities be permitted to do any wanton or unnecessary damage, direct or incidental, to any individual's property. But the mere discretion of the city authorities cannot be interfered with, or in any manner controlled by this ourt, so long as that discretion is exercised within its appropriate and legal limits. W. Pennington, for complainants. F. T. Frelinghuysen^ for defendants. THE CHANCELLOR. The complainants are the owners of dwelling houses and lands situated in Washington and Plane streets, in the city of Newark. Their bill alleges that the Canal Company constructed their canal through the city of Newark, and erected bridges over the canal where it crosses Washington and Plane street, more than twenty years ago ; that the complainants have constructed and arranged their houses so as to adapt them to the height of the bridges, as they were originally erected ; that many of the said houses and lots were subjected to great damage by the original construction of the bridges requir- ing the streets to be filled up so as to make the passage over them natural and easy, by which the location of the complainants' lots were made much lower, and thus greatly damaged. The bill further alleges, that the complainants have un- derstood and believe that recently some arrangement has been entered into between the Canal Company and the city of Newark, by which the city have stipulated, at the expense of the city, to raise the said bridges some two feet higher than they now are ; that the raising of the said bridges two feet above their present height, or any higher than they now are, will work a great and irrepara- ble injury to the property of the complainants, and will constitute a nuisance; that the manner in which the said bridges have already been constructed has obliged the road leading to the same to be tilled up, in order to pass the bridges; and that still further to rai.se the bridges, 258 CASES IN CHANCEKY. Plum et aL v. The Morris Canal and Banking Co. et aL will require the road to be filled up, so as to bury and ma- terially and irreparably injure the complainant's property. The bill prays the defendants may be enjoined from raising the bridges above their present elevation. The defendants have answered the bill. They admit that an agreement has been made between the city and Canal Company, for the latter to maintain the bridge in contro- versy ; they aver their right to make the agreement under a law of the state ; the city of Newark admits that, under their authority, the bridges are about being raised ; they deny that they are to be raised two feet above their present height, but allege they are to be raised one foot only ; they deny that the street is to be filled up, so as to bury the complainants' property ; they aver that they do not intend to interfere with the sidewalks, and that no injury will be done to the complainants ; they claim the right, under the city charter, to alter the grades of the public highways without compensating the owners of adjacent lots for inci- dental damages. This bill cannot be maintained by the present complain- ints. They are improperly joined in the same bill. The complaint is, that the defendants are elevating above their, present height the bridges in "Washington and Plane streets. Samuel Smith is the owner of the property on Plane street. The bridge in Washington street in no manner affects his property. His complaint is, that he is damaged by the defendants heightening the bridge *in Plane street, where his property is located. It is manifest, therefore, that he cannot maintain a suit against the defendants in reference to anything they may contemplate doing with the Washing- ton street bridge. Linn Adams, another complainant, is the owner of three houses and lots of land in Washington street. But what complaint has he against the defendants for inter- fering with the Plane street bridge? None at all. His damage, if any, is sustained by raising the bridge in Washington street. If, then, Samuel Smith has any cause of action against the defendants, it is for raising the Plane OCTOBEE TEEM, 1854. 259 Plum et al. v. The Morris Canal and Banking Co. et aL street bridge. If Linn Adams has any cause of action, it is for raising the Washington street bridge. Here, then, are two complainants, with distinct causes of action, alleg- ing distinct injuries, uniting in the same bill. To au- thorize them to join as complainant, there cause of action must be the same, the injury the same, and they must be entitled to the same remedy. Suppose, in the investigation of this cause, it should appear that the defendants have a 'right to elevate the bridge in Washington, but not the one in Plane street ; then Linn Adams is entitled to redress, but not Samuel Smith. The defendants' defence against one complainant may rest upon entirely different grounds from that against the other. But as the complainants claim the right to amend their bill, in order to obviate this objection, it may save expense to the parties to look into the merits of the controversy. By the original act of incorporation, the Canal Company is required to make good and sufficient bridges wherever the canal crosses any public road, and to keep the same in repair. Undpr this act, the Morris Canal Company con- structed the bridges which are the origin of this suit. By an act of the legislature of 1845, entitled, " An act rela- tive to bridges over the Morris canal," the proper officers of any city are authorized to contract with the company for the maintenance and repair of any bridges in the city, and the city is compelled, after such contract, to keep in repair and maintain the bridges embraced in the contract the same as other bridges belonging to the city. Under this act of the legislature, the city and the Canal Company entered into an agreement, by which, for a suf- ficient consideration, paid or secured by the company to the city, the duty of the future maintenance and repair of the bridges over the canal, where it crosses the public highways of the city, devolve upon the city of Newark. The city of Newark is therefore invested witli the same power and control over these bridges as it has over other bridges within the city limits. If, then, the city has the right to elevate or lower other bridges of the city, and so 2GO CASES IK CHANCEKY. Plum et al. v. The Morris Caiial and Banking Co. et al. to grade and regulate the public highways as to make the bridges accessible arid convenient as public thoroughfares, its right to do this in reference to the Washington and Plane street bridges cannot be denied. The right to regu- late the public highways of the city is conferred upon the city authorities in express terms by the charter. But the defendants' counsel insists, that if the city has the right to raise these bridges, it must first compensate the complainants for the injury they sustain by the exercise of this right. If the complainants are entitled to such com- pensation, then the city has no right to regulate the grade of any street within its limits without compensating the owners of adjacent property for the damage they may sus- tain. For this court to enforce such a principle would be embarrassing, if not totally suspending the most important public improvements of the city. The city has authority, by its charter, to grade and regulate its public highways. The owners of property adjacent to such improvements have no legal claim upon the city for incidental damages. In the exercise of its chartered powers, the city has no right to occupy or appropriate private property without making compensation, nor would its authorities be per- mitted to do any wanton or unnecessary damage, direct or incidental, to any individual's property. But the mere discretion of the city authorities cannot be interfered with or in any manner controlled by this court, so long as that discretion is exercised within its appropriate and legal limits. The bill charges, that the raising of the bridges and filling up the streets will necessarily " bury up " the com- plainant's property. Against such a wrong, the complain- ants would be entitled to the protection of this court. This allegation the defendants deny. The answer states, that it is the intention of the defendants to raise the car- riageway of the street one foot only, commencing at the hight of one foot at the canal, and overcoming that ele- vation by a gradual slope, at a distance of twenty-five OCTOBER TERM, 1854 261 Snover v. Snover. feet, in the middle of the street, and that the sidewalks will not be interfered with at all. As this is the only ground for the interference of the court, and is fully denied by the answer, the injunction must be denied, and the bill be dismissed with costs. CITED in SlcKinlij v. Chosen Freeholders of Union Co., 2 Stew., 169. DELILAH SNOVER vs. SAMUEL SNOVER. Chargss of adultery are improper in a bill which prays for a divorce a mensa et thoro only. So much of the evidence as related to acts of adultery suppressed. Sherrard and W. L. Dayton, for complainant. D. A. Depue and J. S. Nevius for defendant. THE CHANCELLOR. The bill prays for a divorce from bed and board. He charges specific acts of adultery, be- sides setting out sufficient acts of extreme cruelty to en- title the complainant to relief on the latter ground. The evidence taken is very voluminous, and a very large por- tion of it relates to acts of adultery committed by the defendant with individuals other than those named in the bill. As the bill prays for a divorce a mensa et thoro only, the charges of adnltcry were improperly introduced into the bill. The defendant, however, answered the bill, and the cause having been put at issue, the parties proceeded to take their testimony. At the hearing on behalf of tli3 defendant, it was moved that so much of the evidence as relates to acts of adultery ought to be suppressed. The complainant has not sought relief in this court for a dis- solution of the marriage bond on the ground of adultery. The gravaman of her bill is extreme cruelty, and she ask* the relief provided by the statute for such a grievance. This question has been more than once decided in this court, and upon these authorities the evidence must be 262 CASES IN CHANCERY. Snover v. Snover, suppressed. I observed on an examination of the depo- sitions, that the evidence, when offered before the master, was objected to. Laying aside this evidence, there is abundance in the case to entitle the complainant to the de- cree she asks for. The bill prays also for alimony. There is no need of referring this matter to a master, as I have all the evi- dence before me which would enable the master to deter- mine the amount proper to be allowed. The defendant is a cripple, having but one of his arms. He has considera- ble real estate, which, however, is not very productive. The complainant has a legacy secured to her of $1,200. It appears to me that, under the circumstance, an allow- ance of two dollars and a half a week would be proper. The defendant must pay the taxed costs of this suit. The costs of the suppressed evidence must be deducted. An additional allowance of fifty dollars for counsel fees will be allowed. There are eight children. The youngest is a little girl of seven years of age, and it is proper she should be pro- vided for. The defendant's counsel objected to any inter- ference with the children. It is true the bill does not pray any decree in reference to their provision or disposition. But their situation is before me, and the decree to be made in this case respecting the parents affects their wel- fare. It is the duty of the court to protect such of them as require its care. Looking at the character of the case, I think it is proper that the youngest child should remain with the -mother, and that the father should pay a proper sum for her support. Seventy-five cents a week will be allowed for that object. All these allowances are subject to the order of the court, from time to time, upon the application of either party. Payment must be made quarter yearly by the defend- ant. If the parties cannot agree upon the security, there must be a reference to a master. OCTOBER TERM, 1854. 263 "Warbass v. Armstrong. MARTHA M. WARBASS vs. JAMES B. ARMSTRONG and others. The rule of the common law is undoubtedly well established, that a trustee, executor, or administrator shall have no allowance for his care or trouble. The Court of Chancery, independent of any statute law or local custom, has, with few exceptions, adopted this rule. In New Jersey the rule is different. Executors, administrators, guardians, and trustees are allowed compensation by statute, and the principle upon which allowance is to be made is regulated by statute. The statute declares it shall be made with reference to their actual pains, trouble, and risk in settling the estate, rather than in respect to the quantum of the estate. The commissions are a compensation for the faithful discharge of duty. Where a testator gave discretion to trustees to sell land, and directed that, if sold, the proceeds should be invested in good landed security ; held that it the funds arising from the sale had been in the hands of the trustees, and had remained so for a long period without any security, that they had violated their duty as trustees, and were not entitled to commissions. Trustees who did not invest according to the terms of the trust compelled to pay the co.sts of the suit, the complainant having been driven into litiga- tion to establish the amount of the trust fund. J. Linn and M. Ryerson, for complainant. J). TJwmpson and J. Wilson, for defendants. THE CHANCELLOR. The exceptions to the master's report all relate to the subject of commissions. It is insisted that trustees are not entitled to compensation for services ren- dered in the performance of their trust : and again, if they are entitled to such compensation, the allowances made in this case are too large, and in other respects not proper. The rule of the common law is undoubtedly well estab- lished, " that a trustee, executor, or administrator shall have no allowance for his care and trouble," as it was laid down by Lord Talbot in Robinson v. Pitt, 3 P. Wins. 249. The Court of Chancery, independent, of any statute law or local custom, has, with few exceptions, adopted this rule. In New Jersey the rule is different. Executors, ad- ministrators, guardians, and trustees are allowed compeii- 264: CASES IN CHANCEBY. Warbass v. AnAstrong. sation by statute, (Laws of AT. Jersey 214:, 26,) and the principle upon which allowance is to be made is regulated by statute. The statute declares it shall be made with reference to their actual pains, trouble, and risk in settling the estate, rather than in respect to the quantum of estate. It is true, in the case of The State Sank at Elizabeth v. Marsh and Edgar (Sax. 288), the Chancellor declared the general principle to be well settled, that trustees are not entitled to compensation for services rendered in the per- formance of their trust, without adverting to the fact, that such rule did not prevail in this state. But in that case the interlocutory decree, upon which the master's report was based, allowed commissions to the trustees : and in the same opinion the Chancellor did not decide that the commissions should be disallowed, but he reduced them from six per cent., which was the amount allowed by the master, to four per cent. In the case of Jackson v. Jack- son's ex's (2 G. C. R. 113), the same Chancellor expressly recognizes the right and power of the court to make an equitable and just compensation to trustees for their ser- vices. The only remaining question is, whether the allowances made by the master are proper ? As to the allowance of $151.15 on $3023.11, I think it was properly made by the master, and that it is reason- able. The evidence was satisfactory to show, that at the attempt at settlement, on the llth of April, 1844, it was ad- mitted that this was the amount of the trust fund in the hands of James B. Armstrong, one of the defendants, but it was not admitted that he then relinquished his claim to commissions. Nor can I see any propriety in his being required to do so. He had the management of the trust fund, which was by the will left very much to the discre- tion of the trustees for twenty years previous to that pe- riod, and the evidence shows that it was during that time of considerable trouble to him. It is true $100 of the fund was lost ; but under the circumstances, no court OCTOBER TEEM, 1854. 265 Warbass r. Armstrong. would hold him responsible for the loss. His sister, the cestui que trust, was a married woman. The trustees, in the mode of investment, had consulted and followed the advice of the cestui que trust and her husband, and I think very properly. The loss was occasioned by the compli- cated arrangements in payment of property purchased for the cestui que trust, made by herself and husband. I do not think that the exceptant has any reasonable ground of complaint on account of this allowance. The further sum of $81.27, allowed for the disburse- ments of the fund after the llth of April, 1840, is a very moderate allowance, provided under the circumstances the trustee is entitled to anything. v O The trust fund was originally in real estate. It was so left by the testator. He directed by his will, which cre- ated the trust, that the lands so devised should be man- aged and controlled in such way and manner as the three trustees, or a majority of them, should think best and most for the advantage of his daughter, the complainant, and either to rent or sell the same, or any part thereof. He directed that if sold, the proceeds should be invested " in good landed security." On the llth of April, 1844, the fund, amounting then to $3023.11, was in the hands of James B. Armstrong. The bill charges, that the com- plainant then requested the defendants to invest the trust fund in the manner directed by the will. If that fund has not so been invested during this long period, but the trus- tees have seen proper to permit it to remain in the hands of one of the trustees without any security, then they have violated their duty as trustees, and are not entitled to commissions. The commissions are a compensation for their faithful discharge of duty. Jackson v. Jackson, rV, 2 G, C. It. 113. James B. Armstrong states, in his answer, that the fund is invested. It does not appear there was any inquiry about the matter before the master. He simply states, in his report, that there was no evidence before him that the VOL. n. z 266 CASES IN CHANCEKY. Warbass v. Armstrong. fund was invested. There may be some misapprehension upon the subject, as I can hardly suppose the defendant would have alleged that the fund was invested, if it were not so. If the trustee desires an opportunity of showing that the fund has been invested since 1844, I will give him that opportunity ; otherwise the commission since the last named period must be disallowed. The defendants must pay the costs of the suit. The complainant has been driven into this litigation to esta- blish the amount of the trust fund. The result shows that, independent of the commissions, the complainant is entitled to upwards of $600 more than the defendant, James B. Armstrong, the gnly one who has answered, ad- mits to be due. If this discrepancy arose from an honest difference of opinion between the parties involving some principle proper for judical inquiry, the litigation in such case ought not to be at the expense of the trustees. Such is not the case in the present instance. Upon authority, the defendants must pay the costs. Newton v. Bennet, 1 Bro. C. C. 359 ; Franklin v. Frith and others, 3 Bro. C. C. 433. On the ground, too, that the trustees did not invest according to the terms of the trust, they should be com- pelled to pay the costs. In Seers v. Hind, 1 Ves. 294, the Lord Chancellor says, " When I am obliged to give in- terest against executors as a remedy for a breach of trust, costs against them must follow of course." And in Piety v. Stace, 4 Ves. jun. 620, the executor kept the fund, and used it for his own benefit contrary to his trust. He was decreed to pay interest and costs. CITED in Frey v. Frey, 2 C. E. Gr. 75; McKnight v. Walsh, 8 C. E.Qr. 148 OCTOBEK TERM, 1854. 267 Hogencamp v. Ackerman. WILLIAM S. HOGENCAMP vs. CORNELIUS ACKEKMAN et al. If a defendant submits to answer, the general rule is, he is bound to answer every immaterial, as well as material statement of the bill. Where a bill is filed for the correction of a mistake in the execution of a bond and to restrain the defendants from taking advantage of the mistake in cer- tain suits at law, the defendant may set up, as a defence against the com- plainant's right to relief, that the bond was procured by fraud. THE CHANCELLOR The master was wrong in sustaining the second exception to the answer. The bill alleges that the complainant, by virtue of the execution in his hands, levied upon the goods and chattels and personal estate of the said A. J. Brown, then in his possession. This allegation the defendants were bound to answer, not merely affirmatively or negatively, but circum- stantially. It was fairly within the scope of a fair and in- genuous answer to the charge for the defendants, if they denied that the property was Brown's, to state whose it was. And when the bill further charges that the property was in the possession of Brown, the defendants were not confined merely to admitting or denying the fact, but if admitting it, were at liberty, but perhaps bound to state the circumstances of the possession. The question is not how far all this may be material to the real issue ? If a defendant submits to answer, the general rule is, he is bound to answer every immaterial as well as material statement of the bill. This part of the answer, so far from being impertinent, appears to me pertinent and proper. Third exception. Tin's exception, as far as it relates to the recital of pleadings in the Supreme and circuit courts, was properly sustained by the master ; but not as to what the exception characterizes " as long digressions and con- versations in regard to the giving the bond," This part of the answer relating t) the giving of the bond is pro- per, for the reasons which I shall givo in differing from 268 CASES IN CHANCERY. Hogencamp v. Ackerman. the master in his report upon the next, and fourth excep- tion. Fourth exception. The defendants admit the mistake in the bond, but they set up and allege that the bond was procured from them by fraud, and they set out at large and circumstantially the alleg ed fraud. If the defendants could set up fraud, it was necessary they should set it out circumstantially ', or else it would avail them nothing. The master takes the broa(j. ground that the defendants could not set up fraud at all. T.bie bill alleges, that on a certain day, the defendants executed to the complainant their joint and several bond ; that in the execution of the bond, a mistake was made, which will embarrass or defeat a recovery at law. The bill asks re- lief, and that the mistake may be corrected. Why may not the defendants set up, as a defence against the com- plainant's right to relief, that the bond was procured by fraud ? Ought this court to grant a party relief as to any matter in which he is a fraud doer ? The master says the bill is filed to correct a mistake in a sealed instrument as to the time of docketing a judgment in the Supreme court, and to restrain the defendants from taking advantage of the mistake in certain suits at law, and for no other pur- pose. True this is the only purpose. But ought the com- plainant to have his purpose answered, if the defendants can show that the bond in which the mistake occurred was fraudulently procured by the complainant ? Ought the court to make such a bond good, so that the complain- ant may enforce it at law ? The master further says, -"that when a suit is com- menced in a court of law having full jurisdiction of the matter, with full power to try and determine the right of property, and the question of fraud involved in said suit, the Court of Chancery would not interfere, and take juris- diction of the case, especially when not called upon so to do by either party, and that the Court of Chancery should only correct the mistake, and restrain the defendants from taking advantage of the same." OCTOBER TEEM, 1854. 269 Harker v. Irick. The Court of Chancery has now jurisdiction of the cause at the solicitation of the complainant. True, the complainant commenced his suit in a court of law, and that court may try the fraud, if the defendants set it up as a defence. The complainant has filed his bill here, not to recover his money on the bond, but to correct the mis- take. He calls upon the defendants to answer why the mistake should not be corrected. They answer, because the bond was procured fraudulently. It is a good answer, and a good defence to the relief. It would be gross in- justice for this court to make a decree against the defend- ants, and in favor of a wrongdoer, if the bond was fraud- ulently procured. The defendants may set up, at law, the defence of fraud against the complainants recovering the money due on the bond. They may set up, in this court,, the fraud when the complainant is seeking to correct a mistake in the instrument, in order to make the instru- ment available as a legal one. If the bond was procured by fraud, a court of equity ought not to help the com- plainant in his suit at law. The fourth exception was not well taken, and I think the master erred in sustaining it. Fifth exception. This exception was properly sustained, by the master. CITED in Free/and v. N. J. Stone Co., 10 C. E. Or. 143. CHARLES II. HARKER, surviving administrator of Josepfr Kirkbride, deceased, vs. WILLIAM H. IRICK and others. If a person becomes surety for one as administrator, who at the time is a debtor to the estate and is insolvent, and is never able to discharge such in- debtedness, such surety is not bound for such a delinquency of his principal. He is only bound for the faithful performance of his duties as administra- tor. If, under such circumstances, the administrator should, in the settlement of his accounts with tho court, charge himself with the debt, mid the accounts should be passed in such a shape as to bind the surety for the debt, tho surety would be relieved, upon application to the proper tribunal, from such responsibility. Z* 270 CASES IN CHANCERY. Harkeru Irick. But if at the time the surety assumes his responsibility, the administrator owes the estate, and is solvent and able to pay, the amount of the debt will be considered, in law and equity, as so much money in his hands as admin istrator at that time, and consequently the surety will be responsible for it T. L. JV. Stratton and W. L. Dayton, for complainants. R. D. Spencer and A. Browning, for defendants. THE CHANCELLOR. Job Irick, late of the county of Bur lington, deceased, left, at the time of his death, three minor children. He left a will, and appointed his brothers, William Irick and John S. Irick, and his brother in law, "William Ridgway, his executors. They were also left by the will guardians of the minor children. They took upon themselves the execution of the will, and they assumed the guardianship of the minor children, entering into bonds, as required by the statute, for the faithful discharge of their duties as guardians. Their respective duties, both as executors and as guardians, were discharged by them separately. As guardians, they gave separate bonds, and as executors and guardians, they settled separate accounts with the Orphans Court. In the term of February, 1842, of the Orphans Court of the county of Burlington, William Ridgway made a final settlement of his accounts as executor, showing a balance in his hands of $4792.06. In November term, 1843, he settled his accounts in the same court as guar- dian, and charged himself with the balance found in his hands as executor, by his account as settled. The account, shows a large balance due from the guardian. Joseph Kirkbride was the security on William Ridg way's bond as guardian. William H. Irick, one of the minor children, after arriving at age, caused a suit to be instituted in the Supreme Court on this bond. Joseph Kirkbride is deceased. This bill is filed by his administra- tor. It charges, that the accounts settled in the Orphans Court by William Ridgway, both as executor and as guar- dian, are erroneous, and are a fraud upon his security, OCTOBEE TERM, 1854. 271 Harker v. Irick. and asks the interference of the court for his protection. The bill has been answered by all the defendants, and the cause set down and brought to a hearing upon the bill and answers. As the positive fraud charged in the bill is fully denied, and the supposed errors specified satisfactorily explained by the answers, it was admitted on the argumeut, that the controversy between the parties is reduced to a matter of one single item charged in the accounts against the guardian. At the time of the death of Job Irick, "William Ridgf- way was indebted to him on a bond, on which there was due, at the time Ridgway settled his accounts as executor, the sum of $2926. In his settlement as executor, he charges himself with this amount ; and, as, in his settle- ment of his account as guardian, the balance found against him as executor was charged to him as guardian, his surety upon these proceedings stands responsible for this amount. This bond was, at the time of the settlement, in tne hands of William Irick, a co-executor, and it still remains in his hands uncancelled. The complainant sub- mits, that whatever may be the effect of these settlements and proceedings in the Orpans Court, as between Wil- liam Ridgway and the other executors or the minor chil- dren, that the same do not bind Joseph Kirkbride, the surety, for the amount of the bond ; but that Joseph Kirk- bride, in becoming surety for William Ridgway as guar- dian, became surety for such moneys only as came to his hands as such guardian, and not surety for the individual debt on the bond of Ri dgway to Job Irick. If a person becomes surety for one as administrator, who at the time is a debtor to the estate and is insolvent, and is never able to discharge such indebtedness, such surety is not bound for such a delinquency of his princi- pal. He is only bound for the faithful performance of his duties as administrator. It could be no breach of trust or delinquency in duty for the administrator not to do what 272 CASES IN CHANCERY. Harker v. Irick. is beyond his power and control to perform. If under such circumstances, the administrator should, in the set- tlement of his accounts with the court, charge himself with the debt, and the accounts should be passed in such a shape as to bind the surety for the debt, the surety would be relieved, upon application to the proper trib- unal, from such responsibility. It would be a frand upon the surety to exact the debt from him, whether the ad- ministrator did or did not, by his mode of accounting, contemplate a fraud. But if, at the time the surety as- eumes his responsibility, the administrator owes the es- tate, and is solvent and able to pay the amount of the debt, will be considered in law and equity, as so much monoy in his hands as administrator at the time, and, consequently, the surety will be responsible for it. It is the duty of the administrator to collect the debts of the estate without de- lay ; and certainly any delay which places the debt he him- self owes the estate in jeodardy, and results in its loss, is a gross violation of his duty as administrator. Let us apply this principle to the present case. At the time of the testator's death, "William Ridgway owed him a debt upon a bond. It was due and payable. He assumed the duties of executor, and settled his accounts in the Orphans Court. At the time of this settlement he was able to pay. The evidence of the debt was in the hands of one of his co-executors, William Irick. What was his duty as to this debt in accounting as executor ? The statute makes the debt assets in his hands, and makes it his duty to account for it in the same manner as any other part of the personal estate. Elm.er 599 26. It is true the evidence of the debt was in the hands of a co- executor ; but he could not bring suit upon it, for the debt was not denied. The debt was properly accounted for by William Ridgway. Nine months after this, Ridgway ac- counted with the court as guardian. The balance in his hands, as shown by his account as executor, belonged to as guardian. The moment he accounted as executor, OCTOBER TERM, 1854. 273 Little v. Cooper. and the balance due from the executor to the guardian was ascertained, that balance was in his hands as guardian. If not then, when was it to be considered in his hands as guardian ? The mere formality of his transferring it from one account to another, crediting himself as executor, and charging himself as guardian, could not certainly be ne- cessary. But if any formality of the kind was required, it was fulfilled in the settlement of his accounts as guar- dian. He then charged himself with this balance, exhibited it to the court, and the court decreed upon it. If any for- mality was required, this was surely enough. It was his duty to charge himself with this balance. It was so much in his hands as guardian. He was solvent at the time, and all pretence that there was any fraud practised or contem- plated in order to charge the surety, is denied by the answer. The only question is, who shall be the losers by the pre- sent insolvency of the guardian, his surety or the minor children ? Mr. Kirkbride was one of the appraisers of the personal property of Job Irick, and he appraised this debt as good in the hands of the executors. It is because the guardian has not faithfully discharged his duty, that he is unable to account to his wards. It was for such unfaith- fulness that his surety became responsible. The bill must be dismissed. As it is a 'bill filed by an administrator, and as there are some circumstances which I have not alluded to, in connection with the* account*, which call for explanation, let the decree be made witl*- out costs. CITED in Ordinary v. Kershaw, 1 McCar. 529. THOMAS LITTLE vs. MATTHEW H. COOPER and others. The Court of Chancery in this state has never adopted the principle, that be- cause its jurisdiction has once rightfully attached, it will retain the cause, an a matter of right, for tho purposes of complete relief. See Brown tt at. v. EdsaU etal.,l Stockton 256. 274 CASES IN CHANCEKY. Little v. Cooper. All bills in the court are, in their nature, bills of discovery. Some are bills for discovery purely. When the subject matter is one which is properly cognizable at law only, and adequate relief can be given there, a Court of Chancery frequently takes jurisdiction, in order that a discovery may be had on the oath of a party, or to compel the production of papers and documents. The end for which the jurisdiction of the court was invoked having been attained, the party seeks his redress in the proper tribunal sit law. A mere bill of discovery cannot properly pray for relief. Where, upon the facts stated, the relief prayed for by the bill is proper, the bill is somo- thing more than a mere bill of discovery. This was a motion to dissolve, upon bill and answer. M. Ryerson moved to dissolve the injunction, and con- tended 1st. That the answer denies the equity of the bill. 2d. That the bill is one of discovery only, and the bill being answered, the injunction must be dissolved of course. The bill, it is true, prays for relief. It might have been demurred to on that account. Cited Eden 134, note 4 ; 2 Story's Eq. 881 ; 3 Dan. C. P. 1844 ; Woodcock v. King, 1 Aik. 286 ; Weymouth v. Boyer, 1 Ves. jun., 416 ; Burnett and another, adm?rs, &c., v. Saunders, 4 J. C. R. 503 ; Gel- ston and ScJienck v. Hoyt, 1 J. C. R. 543 ; 1 S. Eq. P. 73, 74 ; 8. E. PL 324 ; 9 Paige 580 ; W. & D. Seymour and others v. J. Seymour and others, 4 J. C. R. 409 ; 2 Hoist. C. R. 210. A. B. Woodruff, contra. THE CHANCELLOR. The injunction was granted to stay the proceedings of a suit in the Supreme Court, which Matthew H. Cooper, one of the defendants, had com- menced against the complainant, as the endorser of a pro- missory note. There are nine defendants in the suit. The bill was filed, and the injunction granted, on the 14th of December, 1852. The complainant has answered the bill, and so also lias "William R. Winans. The answer of Winans was not put on file until March 2d, 1854. This OCTOBER TERM, 1854. 275 Little v. Cooper. delay was owing to the fact of the defendant, Winans having left the State of New Jersey and removing to St. Petersburg, Russia, prior to the filing the bill of com- plaint. The facts upon which the injunction was granted, and which constitute the gravamen of the case, are within the knowledge of the defendant, Winans. They are of a cha- racter to make the continuance of the injunction by the court dependant upon his answer. His answer, and that of Cooper, the complainant are before me. I do not perceive that the answer of any of the other defendants are at all necessary. The defendant, Cooper makes this motion to dissolve ; he has a right to be heard upon these answers, on his motion to dissolve. On behalf of the defendant it is insisted, that the an- swer being in, the injunction must be dissolved, because the bill is one of discovery merely. Upon the assumption that the bill in this case is purely a bill of discovery, as distinguishable from a bill of discovery and relief, the principal as laid down is correct, according to the esta- blished practice of this court. I have had occasion to ex- amine this matter heretofore, in the case of Brown et al. v. Edsall and others, decided in October term, 1852, 1 Stockton 256. I will only repeat what was said in that case. The Court of Chancery in this state has never adopted the principle, that because its jurisdiction has once right- fully attached, it will retain the cause as a matter of right, for the purposes of complete relief. All bills in the court are, in their nature, bills of discovery. Some are bills for discovery purely. When the subject matter is one which is properly cogni/.able at law only, and adequate relief can be given there, as where damages are to be ascertained or titles to land tried, and in cases of mere trespass, a Court of Chancery frequently takes jurisdiction, in order that a discovery may be had on the oath of a, party, or to compel the production of papers and documents. The end for which the jurisdiction of the court was invoked having 276 CASES IN CHANCERY. Little v. Cooper. been attained, the party seeks his redress in the proper tribnnal at law. Where a suit has been commenced at law, the defend- ant may be entitled to a discovery from his adversary, and may resort to this court to obtain it. But if he seeks to change the forum of litigation, and prays for relief as well as discovery, the subject matter must be one which ap- propriately belongs to equity jurisdiction. His bill must show a case of manifest propriety in this court's retaining the cause. Fonblanque and Cooper lay it down, that " the court, having acquired cognizance of the suit for the pur- pose of discovery, will retain it for the purpose of relief in most cases of fraud, account accident and mistake." So, if it is plain that adequate relief can be given, and at the same time a multiplicity of suits be prevented, the court, having obtained jurisdiction, will go on and give the proper relief. The present bill was not filed as a bill of discovery merely. It has not the essentials of a pure bill of dis- covery. It is true it alleges that the complainant cannot safely go to trial in the action at law, because the facts constituting his defence are, as far as he knows, or has been able to learn, almost wholly, or the principal part thereof confined to the knowledge of the defendants. But when a bill seeks discovery in aid of a court of law, it must appear that the aid is necessary, and the discovery material to the defence, and that it is not in the power of the party to prove them by witnesses. Gelston and Sohenck against Soyt, 1 J. O. JR. 543. In the suit at law, the com- plainant could have availed himself of the testimony of Winans as well as he can in this court. It was not a dis- covery from the plaintiff that the defendant in the suit wanted, but the evidence of a third party. The injunction was not granted upon this ground. The bill was filed to be relieved against a frand, which it alleged the defend- ant in the suit at law, combining with the other defend- ants in this suit, was attempting to perpetrata. It prays OCTOBEE TEEM, 1854:. 277 - Lucas v. King. for a specific relief, which a court of equity only can grant, to wit, that the defendants might be decreed to deliver up to the complainant a certain promissory note, which the bill alleges was paid by the note upon which the suit at law was brought, and which was held by the defend- ants, or some of them, to be improperly enforced against the complainant. There are other circumstances of fraud charged, more particularly upon Winans, which go to affect the note in the hands of Cooper. If the answers had admitted the facts, the court would have granted the relief by ordering the original note to be delivered up, and a perpetual injunction against prosecuting the suit at law. Tins shows that the bill was something more than a mere bill of discovery. A mere bill of discovery cannot properly pray for relief. Upon the facts stated, the relief prayed for by this bill is proper. But I am of opinion that the bill in this case is fully and fairly answered, and its equity denied. After the very severe criticism upon the answer of Winans by the com- plainant's counsel, I feel it my duty to examine the an- swer with more than ordinary care. It is true the answer is unskilfully drawn. It is not entitled to less credit on that account. In every important particular, it accompa- nies the denial of the matter alleged with facts and cir- cumstances substantiating the denial. If the answer is true, the amount of the note in suit is due to Cooper, and the complainant has no defence at law or equity against a recovery. CITED in Hoppock's Exrs. v. United JV. J. R. ft. and Can. and Penna. R. R. Co. 12 C. E. Gr. 200. JOHN LUCAS and others vs. WILLIAM KINO and others. Whoro a bill prays for partition, and tho defendants deny complainant's title, if tho title in dispute is an equitable one, it is the duty of tho court to nettle it. If it is a le^al title, the court may dismiss the bill, or may re- tain the cause, ami afTord tho party an opportunity of settling his title at law. But the bare denial of tho complainant's title is no obstacle to tho court's pro VOL. IL 2 A- 278 CASES IN CHANCEKY. Lucas v. King. ceeding. The defendant must answer the bill, and if lie sets up a title adverse to the complainant, or disputes the complainant's title, he must discover his own title. If when the titles are spread before the court upon the pleadings, the court can see there is no valid legal objection to the complainant's title, there is no reason why the court should not proceed to order the partition. But where there were serious questions, both of law and fact, involved in the controversy between the parties as to the title, the court retained the bill, and gave the parties an opportunity of settling the title at law. The bill states, that, on the 12th of January, 1812, Ben- jamin Carman conveyed, by deed of bargain and sale in fee simple, to the said Lucas and Elizabeth Carman, their heirs and assigns, certain lands, in the bill particularly de- scribed, in consideration of the sum of $6000 ; that Theo- dosia Lucas died July 1, 1821, leaving the complainants her heirs at law ; that, in 1815, Elizabeth Carman married one William Idell ; that Idell and wife occupied, with Theodosia Lucas, the lands in question until Theodosia's death, and after her death with complainants, and up to 20th August, 1828, when Elizabeth Idell died ; that at her death Elizabeth Idell left one child, Emily, who has mar- ried with one William King. The bill prays partition. William King and Emily his wife answer the bill. They deny that, by the conveyance to Theodosia Lucas and Elizabeth Carmen, they took the estate as tenants in com- mon, but allege that the said deed, having been made on the 16th of January, 1812, that by the statute then in force the said deed created an estate in joint tenancy, with a right of survivorship, incident -thereto, and that, on the death of Theodosia Lucas, Elizabeth Carman took the whole estate. In further answering, the defendants deny that Eliza- beth Carman, after the death of Theodosia Lucas, occu- pied the premises in common with the complainants, but say, that Elizabeth Carman, after the death of Theodo- sia Lucas, and after her marriage and up to the time of her death, had the sole use and enjoyment of the said OCTOBEK TEEM, 1854. 279 Lucas v. King. premises, claiming them as her own property ; and that, since her death, her daughter Emily and her husband, the defendants, have used and enjoyed them. They further say, that when the deed was made by William Carman to Theodosia Lucas and Elizabeth Carman, to wit, on the 16th of May, 1812, the said^ Theodosia and Elizabeth gave to William Carman their bond, in the penal sum of $13,000, conditioned to pay $6000, with interest from date, on or before the 16th day of May, then next ensuing, and a mortgage upon the premises to secure the payment of the said bond ; that while the said Elizabeth was in the sole occupancy of the said premises, after the death of Theo- dosia Lucas, 26th December, 1822, the said Benjamin Car- man released and quit-claimed unto the said Elizabeth Idell all rights, actions, and demands whatsoever, both at law and in equity, which he then had against her on the bond and mortgage aforesaid ; that afterwards, on the 12th September, 1826, the said Benjamin Carman, for value received, did assign, set over, and transfer the before mentioned bond, and all moneys due and to become due thereon and the said mortgage, unto the said Elizabeth Idell, her executors, administrators, and assigns. The an- swer further states, that the said Elizabeth was, from the time of the death of the said Theodosia Lucas, and from the time of the marriage of the said Elizabeth, in 1810, in the undisputed and sole possession of the said premises, claiming and using them as her own property, and re- mained so in possession until she died, in 1828 ; that after the assignment of the said bond and mortgage, she be- came invested with all the rights of a mortgagee in pos- session as against the complainants, if they had any title in the premises ; that since the death of the said Elizabeth, the defendants, King and wife, have been in the undis- turbed possession of said premises, claiming it as their own property, and that the same has been claimed by him- self, the said William King and wife, and by her mother, for more than thirty years, and they pray the panic benefit 280 CASES IN CHANCERY. Lucas v. King. of the statute of limitations, as if they had formerly pleaded the same; that daring all that period the complainants resided in the neighborhood, and knew the defendants claimed the premises as their own, and yet never made any demand of the possession. The complainants filed a replication. Proofs were taken on both sides, and the cause argued upon the pleadings and proofs. W. Halstedy for complainants. W. L. Dayton, for defendants. THE CHANCELLOR. The only relief the bill prays for is, that there may be a partition of the land and premises therein described between the parties. The defendants deny the complainants' title. If the title in dispute is an equitable one, it is the duty of this court to settle it. If it is a legal title, the court may dismiss the bill, or may retain the cause, and afford the party an opportunity of settling his title at law. Alnat on Partition 101 ; Bliman v. J3rown, 2 Vern. 232 ; 1 Story's Eq., note 1, 650. I do not understand, however, that the bare denial of the complainants' title is any obstacle to the court's pro- ceeding. The defendant must answer the bill, and if he sets up a title adverse to the complainant, or disputes the com- plainants' title, he must discover his own title, or show wherein the complainants' title is defective. If when the titles are spread before the court upon the pleadings, the court can see that there is no valid legal objection to the complainants' title, there is no reason why the court should not proceed to order the partition. The first ground taken by the defendants illustrates this principle. The defendants deny that by the deed of conveyance from Benjamin Carman to Theodosia Lucas and Elizabeth Carman, the grantees took an estate as tenants in com- OCTOBER TERM, 1854 281 Lucas v. King. mon. They were evidently under a misapprehension as to the date of that deed, and supposed that it was subse- quent to the act of the 4th of February, 1812. The an- swer insists that the grantees, by that deed, took as joint tenants. If so, then the complainants have no title, be- cause the pleadings admit that Elizabeth Carman survived Theodosia Lucas, and that the complainants claim title by virtue of this deed under Theodosia Lucas, as her heirs at law. The deed, in fact, bears date several months sub- sequent to the passage of the act. The act of February 4, 1812, declares, " that no estate after the passage of the act shall be considered and adjudged to be an estate in joint tenancy, except it be expressly set forth in the grant or devise creating such estate ; that it is the intention of the parties to create an estate in joint tenancy, and not an estate of tenancy in common." The deed in question grants the estate to Theodosia Lucas and Elizabeth Car- man, their heirs and assigns, for ever. They took the estate, therefore, as tenants in common, and upon the death of Theodosia Lucas, her estate descended to the complainants, as her heirs at law. Upon a question of legal title so plain as this, there can be no propriety in denying the complainants the relief they seek, until they shall establish their title at law. But there are other serious questions, both of law and of fact, involved in the controversy between these parties as to the title. Both parties claim under Benjamin Car- man. The defendants claim and set np an adverse posses- sion of more than thirty years. The complainants insist that the possession was not adverse, but that if the de- fendants and those under whom they claim have been in possession the length of time alleged, the possession was not adverse, but was the possession of a tenant in com- mon, and under the same title by which the complain- ants claim. Botli parties have taken testimony upon this point, and the settlement of it involves important ques- tions of law and fact. 2 A* 282 CASES IN CHANCERY. Lucas v. King. There is another question of controversy. When Ben- jamin Carman gave to Theodosia Lucas and Elizabeth Carman a deed for the premises, they executed to him their joint and several bond to secure the payment of six thousand dollars, and to secure its payment executed a mortgage on the premises. The defendants allege that, on the 27th of December, 1822, Benjamin Carman, under his hand and seal, executed a release to Elizabeth Car- man, by which he released to her all actions, rights of ac- tions, and demands whatsoever upon the said bond of $6000, and that, on the 12th September, 1826, while she was in the possession of the premises in controversy, Benjamin Carman, under his hand and seal, assigned and transferred to her the mortgage and mortgaged premises, and that the possession has been held under this mort- gage ever since ; that, by the statute, the equity of re- demption is barred, and that the estate is absolute in the defendants, who have held under this mortgage for more than twenty years. In answer to this, the complainants say, that the release to Elizabeth Carman operated in law as a release to both obligors ; that by it, the debt was ex- tinguished, and that the mortgage being only security for the debt, the release of the debt released the premises for the mortgage, and that, consequently, the subsequent assignment of the mortgage created, no title to the mort- gage or mortgaged premises as against Theodosia Lucas, under whom the complainants directly claim title. I have stated enough to show that the complainants are not entitled to a partition until the title is established at law. I shall retain the bill to give the complainants an op- portunity of settling the title at law, if they express a desire to continue the suit for that purpose. CITED in Carlisle v. Cooper, 6, C. E. Or. 590. OCTOBER TEEM, 1854. 283 Heyde v. Enlers. CLAUSE H. Y. D. HEYDE and wife vs. HANS EIILERS. The witnesses, by whom the defendant endeavored to prove that he paid part of the purchase money for the property in dispute, relied upon conversa- tions had with the complainants and upon declarations, they had made. The evidence was not satisfactory, and the conversations and declarations admitted of a different construction. Held, that as the defendant had the opportunity of stating, in his answer, when, where, and how he paid any part of the purchase money, that the answer amounted pretty much to a confession of the case made by the bill. P. Bentley and A. 0. Zabriskie, for complainants. Hittyer for defendant. THE CHANCELLOR. The only question in controversy is one of fact, was the property in dispute purchased with the money of Mr. Heyde ? The evidence in the cause raises some doubt whether some considerable portion of the purchase money was not the defendant's ; but taken in connection with the answer, and all the circumstances connected with the purchase, and the manner of payment of the consideration, my mind has been entirely relieved of all doubt as to the real truth of this case. The only pretence which the defendant, from the testi- mony, can set up, is that he paid $500 of the purchase money. The witnesses, by whom it is endeavored to prove this, rely upon conversations had with the complainants, and upon declarations they have made. Their evidence is very unsatisfactory, and the conversations and declara- tions to which they testify admit of a different construc- tion from that which the witnesses put upon them. The defendant had the opportunity of stating, in his answer,, when, where, and how he paid any part of the purchase money. The answer amounts pretty much to a confession of the case made by the bill. 284: CASES IN CHANCERY. Holcombe v. Holcombe's executors. There are some moneys which the defendant has ad- vanced in connection with this property, and these should be allowed him. As he has denied the trust, he is not entitled to any compensation for services. Let there be a reference to a master, with directions to allow the defendant all payments made by him in refer- ence to the property, and all accounts properly chargeable against it, and to ascertain what payments the complain- ants must make in order to relieve the defendant from any liabilities he may have incurred. CAROLINE HOLCOMBE, by her guardian, vs. THE EXECUTORS OF JOHN HOLCOMBE, deceased. Depositions taken on a preliminary matter, after bill filed, and before the time had expired for any further pleading, were permitted to be read on the final hearing, so far as they were relevant to the matters in issue, and which were involved in the preliminary matter. After the bill was filed, and before the time had expired for any further pleading, a preliminary matter arose upon the petition of the complainants, involving in a measure, the merits of the case as presented by the bill. A refer- ence was made to a master, and witnesses were examined, both by the complainants and defendants, upon notice. The examination was conducted in the usual way upon direct and cross-examination. Upon the evidence so taken, the matter submitted by the petition was decided. The defendants then answered the bill, and issue was taken by replication. Joseph F. Randolph now moved for an order allowing the depositions taken to be read on the final hearing. W. Hoisted, contra. 285 Holcombe v. Holcombe's executors. THE CHANCELLOR. The testimony was taken in this suit, and between the present parties. Jt is true it was taken before issue, and prior to the answer being put in. But it was taken upon matters involved in the allegations of the bill, and which the defendants must necessarily have admitted or denied by their answer. The evidence was taken .upon notice. The defendants were present by their counsel, and had the benefit of cross-examining the witnesses. It is not shown now how the defendants can be prejudiced by permitting the evidence to be read on the hearing. Upon bill and cross-bill, where there are the same par- ties, and the evidence is applicable to the issues in both suits, in a hearing upon the cross-bill, the testimony taken in the original suit will be admitted. The court, however, will not permit testimony taken in the original suit, not relevant to the issue in that suit, to be read, although it is relevant to the issue made by the pleadings to the suit in the cross-bill. It was so decided in Underhill v. Van Cortlandt, 2 J. G. R. 355. The reason given in that case by the Chancellor, is that the opposite party is not sup- posed to have cross-examined the witness with any other view except as to the issue upon which the evidence was taken. In Lubier v. Genow (2 Yes. 579), upon bill and cross-bill, depositions were taken in the original suit : the original bill was dismissed. The depositions were permitted to be read in the suit upon the cross-bill, although the original bill was dismissed. I can see no valid objection to permitting the depositions to be read, so far as they are relevant to the matters now in issue, and which were involved in the controversy in which they were taken. Let an order be made to read the depositions, subject to all just exceptions. 286 CASES IK CHANCERY. McEwen v. McEwen. RACHEL McEwEN vs. HENRY McEwEN. After petition for divorce, on the ground of abuse and ill treatment, motion to allow a counsel fee and maintenance pendente lite refused against a party who had been declared a lunatic by the court. The order implies a default and neglect of a moral obligation on the part of the defendant, which cannot be imputed to a lunatic. Henry McEwen, the defendant, was found a lunatic, by inquisition, dated August 31, 1854, which found that he had been a lunatic " for one year last past and upwards." The complainant filed her petition for divorce August 26, 1854. The grounds alleged for divorce are abuse and ill treatment. The abuse and ill treatment is alleged to have taken place at various times, and in particular in October, 1841, and in March last. Mr. James Wilson now moved, on behalf of the com- plainant, that an order be made to allow a counsel fee and maintenance pendente lite. THE CHANCELLOR. I think- it would be improper to make the order. It would be made against a party who has been declared a lunatic by this court. The order implies a de- fault and neglect of a moral obligation on the part of the defendant. This ought not to be imputed to a lunatic. The embarrassment in enforcing such an order is also an .objection to making it. The motion is denied. OCTOBER TERM, 1854. 287 Clarke v. Johnston. GRACE T. CLARKE and others vs. ALEXANDER M. JOHNSTON and others. This court has concurrent jurisdiction with the Orphans Court in the settle- ment of accounts of executors and administrators. It may assume this jurisdiction to the exclusion of the Orphans Court in any case where the ends of justice may seem to require it. If any progress has been made in the Orphans Court in the settlement of an account, the Court of Chancery ought not to interfere with that tribunal, unless there is shown some good cause for its doing so. James Wilson, for complainants. W. L. Dayton,, for defendants. THE CHANCELLOR. The complainant, Grace T. Clarke, is the mother of Doctor John T. Clarke, deceased. Eliza- beth Cowen, Phebe Augusta Clarke, and Virginia Clarke (who, with the husband of Elizabeth Cowen, are the other complainants in the cause,) are sisters of the deceased. They have filed this bill against the defendants for an ac- count of the estate of Doctor Clarke, which came into the hands of Caroline Johnston,, as the administratrix of Doctor Clarke. She being the widow of the deceased, took out letters of administration before the surrogate of the county of Mercer. Afterwards she intermarried with the defendant Alexander M. Johnston. The bill alleges that there has been great delay in the settlement of the estate, and that although two years had then elapsed since letters of administration were issued, the administratrix had not exhibited any accounts for settlement. The defendants, in answering the bili, give an account of all the effects that had come to the hands of the ad- ministratrix and an account of the disbursements. As a reason why the estate has not been settled, the defend, ants state that there is a trust fund belonging to the 288 CASES ES T CHANCERY. Clarke v. Johnston. estate, which is held in the state of Pennsylvania by the Girard Life Insurance and Annuity and Trust Company of Philadelphia, which they allege, through the inter- ference of the complainants, has not come to the hands of the administratrix. They submit to account under the direction of this court. The complainants filed a replication. One witness only was examined. The object of taking his testimony was to show the fact, alleged in the answer, that it was through the interference of the complainants that the trust fund mentioned had not been paid over to the administratrix. The only question before the court, at this time, is whether the defendants must be decreed to account. On behalf of the defendants, it is insisted, that an ac- count ought not to be decreed, because letters of admin' istration were taken out before the surrogate, and the Or- phans Court has therefore jurisdiction of the cause. This court has concurrent jurisdiction with the Orphans Court in the settlement of accounts of executors and ad- ministrators. It may assume, this jurisdiction, to the ex- clusion of the Orphans Court, in every case where the ends of justice may seem to require it. If any progress has been made in the Orphans Court in the settlement of the accounts, the Court of Chancery ought not to interfere with that tribunal, unless there is shown some good cause for its doing so. This was the view taken by the Chan cellor in the case of Salter et al. v. Williamson, admimstra* tor, (1 G. C. R. 480), and I think a correct one. In the present case, the administratrix has done no more than to take out letters before the surrogate. She has not even filed an inventory of the estate. By putting in an answer, the settlement of the estate has progressed much further than it has in the Orphans Court. We have the inventory, the appraisement, and an account of the dis- bursements. There is manifest propriety, under these cir- cumstances, in this court's continuing the cause. This being the case, the complainants, as a matter of 289 OCTOBEE TERM, 1854. Clarke r. Johnston. Bourse, are entitled to an account. Under our statute, as the next of kin of the deceased, they are entitled to one half of the estate. On the argument, the question was very fully discussed, as to who is entitled to the trust fund, and as to whether the defendants can have a decree for distribution, so as to draw all the estate out of the hands of the administratrix before the right to that fund is determined. But these questions cannot properly come up now. The only ques- tion at present is, must the administratrix account ? And as to this there can be no doubt. The question of distribu- tion is distinct from the present, and comes up in another stage of the cause. There must be a reference to a master, with the usual de- cree for that purpose. CITED in Frey v. Demarest, I C. E. Gr. 239 : Search's Admr. v. Search^ Admr's 12 C. E. Or. 140. VOL. u. 2a CASES j ADJUDGED IS THE COURT OF CHANCERY OF THE STATE OF NEW JERSEY, FEBKUAKY TEEM, 1855. WILLIAM HALSTED vs. JOHN DAVISON et al. At law, a judgment and execution constitutes no lien upon a mere equitable interest. A court of equity may aid the judgment creditor in reaching that interest, and secure to him' a pref erence ; to which by diligence he has entitled him- self. A judgment and execution creditor cannot subject a property, in which an equitable interest had been secured to his debtor by declaration of trust, to the payment of the judgment debt. Where there has been no fraud in the transaction, no property of the debtor covered up by it, no creditor in- jured ; where the debtor has never paid any part of the consideration money,, or ever had any legal title to the property in question. If the debtor had ever paid any money upon the property to the extent of such payment, the court might subject the property to the execution, on the ground of its being the debtor's own earnings. As a general principle, when an execution creditor has acquired an equitable lien, it cannot be destroyed or impaired by the voluntary act of the debtor or his trustee. An equitable lien may be lost by negligence and unreasonable delay. W. Hoisted and 0. S. Hoisted, for complainant. W. L. Dayton, for defendant. FEBRUARY TERM, 1855. 291 Hoisted v. Davison. THE CHANCELLOR. On the first of March, 1832, John Davison and Garret D. Wall entered into a verbal agree- ment, by which Garret D. Wall agreed to let Davison into the possessson of the Fithian mill, as it is called, in the city of Trenton, upon the following terms : Davison was to fit it up as a paper mill, and pay as rent the sum of three hundred dollars yearly. Wall agreed, that if at any time Davison would pay, or secure to be paid, as the purchase money, the sum of five thousand dollars, then that he, Wall, would convey to him the mill. It was agreed that whatever machinery was put in the mill should remain there as security for the rent. Davison went into possession, and expended some three or four thousand dollars in putting the mill in operation. On the 23d of February, 1841, Wall, at the request of Davison, conveyed the mill to the defendant, Henry P. Welling, for the consideration of $5000, which Welling secured by his own bonds and by mortgages on the pre- mises. On the 23d of March, 1841, Welling executed to Davison a deed of trust, by which, after setting out the conveyance from Wall, the manner of securing the pur- chase money, that it was expressly agreed between Wel- ling and Davison, at the time of the purchase, that if the said Davison should well and truly pay and satisfy tho bonds and mortgages given by Welling as the considera- tion, or indemnify and save harmless the said Welling from all loss and damage by reason of his liability upon the same, &c., he, the said Welling, would hold the said premises in the following trust : first, that the said Davi- son should enjoy the premises, for his natural life, for the consideration of one dollar annually, that in case of the death of the said Davison, the said premises should be sold at public sale, and the proceeds applied first, to tho payment of any balance of principal and interest which might remain due upon the said bonds and mortgages, and any costs, &c., incurred by said Welling in conse- quence of his liability ; second, to pay to Lathrop & Irwiii 292 CASES IN CHANCERY. Halsted v. Davison. all such debts which might, at the time .of the death of said Davison, be due from him to them, or either of them ; third, to pay all debts which might at the time of the death of said Davison be due to any person or persons of the city of Trenton; fourth, the surplus, if any, to be paid over to the widow and children of said Davison. Therefore it was . declared, that the said Welling did ratify and confirm the said agreement, and did hold the said property, &c., in trust, &c. In 1846, this declaration of trust was destroyed by the mutual consent of the parties. It was destroyed in con- sequence of Davison's hopeless insolvency, and the mani- fest impossibility of his fulfilling the conditions which entitled him to the benefits of the trust. The complainant is a judgment and execution creditor of Davison. The object of the bill is to subject the mill property to the payment of the judgment debt. In the first place, it is alleged, that the conveyance to Welling was fraudulent, nd was made to him for the purpose of defrauding Davison's creditors. If this is so, the property must be subjected to the payment of the complainant's judgment and execution. The court may do this with or without remunerating Welling for his ex- penditures, as shall be deemed equitable under the cir- cumstances and most consonant with justice. If the evidence is such as to establish actual and direct fraud, then the conveyance should be declared absolutely null and void ; but where it is only constructively fraudulent, it will stand as security, so far as to reimburse and in- demnify the grantee. I do not think the evidence will justify the conclusion, that the transaction between Welling and Davison was a fraud as to Davison's creditors. Davison was an old man, and, as appears from the business transactions between him and the complainant, without means to do business. He had been carrying on the same business in another mill through the aid of the complainant, the result of FEBRUARY TERM, 1855. 293 Halstedr. Davison. which was an indebtedness to the complainant of up- wards of three thousand dollars. When he rented this mill of Wall, under an agreement that he was to have a title when he paid or secured $5000, he had just been sold out by the sheriff, and the complainant then had a judg- ment against him of upwards of $3000. After having been in possession of the mill some nine years, his embar- rassment had greatly increased. The whole period seemed to be a continual struggle to keep the wheels of the mill in motion. The complainant had recovered an- other judgment, of upwards of $1100, for a new debt, contracted by Davison in his efforts to carry on' the paper mill. The complainant had taken out six executions against his debtor, and there can be no doubt but that what Davison stated in his testimony is true, that he hardly had sufficient to buy bread, and would have suf- fered but for the kindness of some of his friends. In this condition he was informed by Wall, that he, Wall, was embarrassed, and must have the property settled for in some way. Davison could not buy the property, for he h id not the means to buy his daily bread. He was thus compelled to abandon the purchase. It was under such circumstances that the defendant, Welling, purchased the property ; and after giving his own personal obligations for the purchase money, executed to Davison the declara- tion of trust. Davison then made another struggle for li fe. He could not make enough to pay the rent or keep the mill running. He says he did not make enough to pay the hands. In 1816, lie owed Welling upwards of six hundred dollars for rent. Welling had, in the mean time, made large advances of money to refit the mill with ma- chinery, and had paid debts for Davison to an amount exceeding $2000. At this time, $5000 was as much as the mill and machinery were worth. Thus it appears that the creditors had lost nothing, but that Welling had ac- tually embarrassed himself in endeavoring to help Davi- son, and put him in a way to pay his debts. In the midtt 2i* 294 CASES IN CHANCEKY. Hoisted v. Davison. of these embarrassments, another judgment was about to be entered up against the old man, and it was said that the declaration of trust might make trouble. Davison went to his principal creditor, the complainant, and con- sulted him in reference to the declaration of trust, and the complainant told him there was a question whether a judgment creditor might not sell his interest in the pro- perty. It was then that the declaration of trust was destroyed. I cannot see any fraud in this transaction. It really seems to have been a matter of charity, upon the part of Welling, to afford to Davison some way of living. No cre- ditor was injured by it. There was no property of Davison covered up in the name of Welling. Davison never had any title in the property, nor did he ever pay one cent towards the consideration money. If Davison had origi- nally paid any part of the purchase money, or if, after the conveyance to Welling he had paid it, or by expenditures had enhanced the value of the property, there might be seme foundation for the charge of fraud. There was no- thing done by either of the parties that looked like a dis- position to defraud a creditor. The complainant was the principal creditor. Nothing was concealed from him. No creditor was defrauded, or could be defrauded by the transaction. It is true the motive for giving up the decla- ration of trust was the anticipated difficulty from judg- ment creditors. But if such difficulty was apprehended, was it not right and reasonable that Welling should be re- lieved from further trouble ? Davison was a mere volun- teer, and it was a matter of duty, as well as of right, that he should not unnecessarily involve an innocent person who had befriended him. But the complainant asks relief upon another ground. He says Davison had an interest in this property ; it was held in trust for him, and that that interest the complain- ant is entitled to have applied to satisfy his execution. Davison never had the legal title to this property. At FEBKUAKY TEEM, 1855. 295 Hoisted v. Davison. law, a judgment and execution constitutes no lien upon a mere equitable interest. A court of equity may aid the judgment creditor in reaching that interest, and secure to him a preference to which by his diligence he has entitled himself. On the 16th of May, 1829, the complainant recovered judgment against Davison. In May, 1834, he caused an execution to be levied upon all the defendant's interest in the mill. "What interest did the defendant then have ? He was then the tenant of Wall, who had agreed with him, that if he would pay him $5000, he should have a legal title to the property. I said the agreement was a verbal one, but tho evidence leaves it uncertain. But ad- mit it was in writing, and was an agreement the specific performance of which the defendant could enforce. Ad- mit that the plaintiff in the judgment could have come into a court of equity and have taken the place of the de- fendant, and have acquired his interest by enforcing the specific performance of the agreement, for I am not dis- posed at this day, when the legislature is aiding by law, in every way, execution creditors to reach the property of their debtors, to shorten the arm of this court in favor of a creditor asking its assistance. Then, what equity had the execution creditor? He certainly had no more than the debtor himself. The debtor had not paid a dollar ; ho had not paid up his rent even; so that he was not in fact in a position to demand a specific performance. Were Wall's hands tied up by the execution? Was he to see this property crumble to ruin before his eyes, and because he had agreed to convey the property upon certain condi- tions, which had never been performed, wait the pleasure of the execution creditor to assume the position of tho alleged vendee? The complainant slept over his rights for nine years, and then Wall conveyed the property to Welling. He then delayed six years longer before he filed his bill. A court of equity will exercise a sound legal discretion in decreeing a specific performance. To deter- 296 CASES IN CHANCERY. Halsted v. Davison. mine that this execution is entitled to the interest which Davison had in the property, I must declare that Wall had no right to make the sale to Welling, and that the complainant's delay of fifteen years was reasonable. This would not only be aiding the creditor, but be making the interest of all others subservient to his, no matter at what sacrifice. Wall had a perfect right to make the convey- ance, and by it the complainant lost all equitable lien, if he had any, in the property by his negligence and delay. But the complainant obtained another judgment in 1836, and caused an execution to be issued upon it in 1842, and an alias execution in 1846. The first execution was issued while the declaration of trust was in existence ; the second execution was issued after the declaration was destroyed. The complainant insists that the destruction of the declaration did not impair his rights, which had be- come vested. As a general principle, where an execution creditor has acquired an equitable lien, it cannot be de- stroyed or impaired by the voluntary act of the debtor or of his trustee. When Welling took the deed in 1832, he paid the con- sideration money. He executed a declaration of trust to the effect, that if Davison would repay him the purchase money with interest, and indemnify him for all costs, charges, and expenses, then that Davison might hold the property during his life at an annual rent of one dollar; that at Davison's death Welling would sell the property, and pay certain specified debts, and the surplus he would hold for the benefit of Davison's wife and children. The complainant knew of this trust. Davison remained in possession for six or seven years. He was not only unable to reimburse Welling, but allowed upwards of one thou sand dollars interest money to accumulate. He contracted debts to an amount of upwards of two thousand dollars, which Welling was obliged to pay. Welling, for his own safety and security and for the preservation of the pro perty, was compelled to make expenditures of upwards FEBRUARY TERM, 1855. 297 Halsted v. Davison. of six thousand dollars upon it. The creditor stood by from 1842 to 1846. He sees Davison abandon all hope of retaining any interest in the property. He waits until August, 1847, and then files this bill. I repeat again, the aspect of this case would be changed if any of Davison's money was in the property. But he was a mere volunteer, and had not advanced a dollar in the creation or preser- vation of the trust. Buf; again, the trust not being void and fraudulent as to creditors, the complainant can only claim the interest of the debtor in trust. What is that interest ? It is nothing more than the privilege, after the trustee, is re- imbursed, of holding the property during life at an annual rent of one dollar, But this the complainant is unwilling to take. He claims the whole property after the trustee's claims upon it are satisfied. As the trustee had a right to create the trust, the trust property being the creature of his own funds the creditor, if he can take at all, must take iu conformity to, and not in violation of the trust. I do not mean to countenance the idea, that a man who is embarrassed in his circumstances may enter into busi- ness, and purchase property, and make arrangements for its future security by covering it up in the nature of a trust. That raises another question, one we have already considered, a question of fraud. If the debtor had ever paid any money upon this property, to the extent of such payment the court might subject the property to the ex- ecution, on the ground of its being the debtor's own earn- ings, to which his creditors are entitled. There is no evidence in the case to justify the belief that this property would bring enough to reimburse Wel- ling for his outlays. To subject him to an account under such circumstances, in the effort to reach any equitable interest Davison might have, would be oppressive, and I can see nothing in the case to warrant it. As to the personal property, in regard to which the com- plainant asks the interference of the court, if it belongs 298 CASES IN CHANCEKY. Jones v. Naughright. to the complainant as owner, as he has endeavored to show, no aid of this court is required ; the complainant has his remedy at law. In any view I have been able to take of the case, I do not see that the complainant is entitled to relief. This bill must be dismissed with costs. SAMTJEL JONES vs. JOHN NATTGHRIGHT and others. A debtor has a perfect right to prefer a creditor, and he may make that pret- ence by a mortgage, as well as by any other mode of security. The mort- gage will be a valid encumbrance on the premises. , Money for which a judgment is confessed may be honestly due, and yet the judgment not bona fide. If it was confessed not for the purpose of securing the debt, but as a fraudulent cover to the property, and to protect it from another creditor, it should be set aside as fraudulent, But to establish the fraud in such a case, the proof of it should be clear and satisfactory. It would require very strong and convincing circumstances unexplained to jus- tify the inference that a judgment was fraudulent, when it was proved, beyond doubt, that the debt was justly and honestly due. The bill was filed on the 6th of May, 1851. John Naugh- right answered the bill. The other defendants did not answer. Depositions were taken on both sides. The case made by the bill is this : On the 3d of March, 1848, John Frone and wife executed a mortgage upon certain lands in the county of Morris, the subject of this suit, to secure the sum of $400. On the 4th of March, 1848, John Frone confessed a judg- ment in the Circuit Court of the county of Morris for the sum of $573.52, to Eve Frone, his mother. The said land was sold by the sheriff, and was purchased by Eve Frone, for the sum of $300 over and above encumbrances. In May, 1848, the complainant recovered a judgment against the said Frone for $359.50 and $28.30 costs of suit, and under his judgment, caused the sheriff to sell the same premises, and became the purchaser thereof. On the 8th FEBRUARY TEEM, 1855. 299 Jones v. I^aughright. of December, 1848, Eve Frone conveyed the premises to the defendant, John !Naughright, in consideration of the sum of $100, subject to the mortgage given by Frone to John Naughright for the sum of $400, and also subject to a mortgage given by Frone to John Sharp, to secure a debt of $600. The bill admits the validity of the Sharp mortgage, but alleges that the mortgage by Frone to Naughright is fraudulent, and was made to defeat the com- plainant, as a creditor of Naughright. It also charges, that the judgment confessed by John Frone to Eve Frone was fraudulent and void as against creditors, and was con- trived between said John Frone, Eve Frone, and John Naughright, and to prevent the complainant from collect- ing his said debt of the said John Frone ; and it charges, that the sale by Eve Frone to John Naughright was a pre- tended sale, made at the procurement of John Frone, and without any consideration. The bill prays that all these conveyances may be set aside, as fraudulent as against him, except the Sharp mortgage, which he offers to pay, and that the defendants be decreed to deliver up to the court the possession of the premises. T. Little, for complainant. H. A. Ford andJ. W. Miller, for defendant. THE CHANCELLOR. The complainant, under a judgment and execution in his favor against John Frone, purchased about forty acres of land in the county of Morris, and the same was conveyed to him by the sheriff of the county. The defendant, John Naughright, holds a mort- gage on the same property to secure the principal sum of six hundred dollars and Interest, which was given by John Frone to John Sharp, and which was afterwards assigned to John Naughright. John Naughright holds, also, another mortgage on the same premises, executed to him by John Frone to secure the principal sum of $400 and interest. John Frone confessed a judgment subsequent to these mort 300 CASES IN CHANCERY. Jones u. Naughright. gages, to his mother, Eve Frone, for the sum of $573.52 of damages, and $20.02 costs of suit. Under this judg- ment, the same property was sold by the sheriff, and was purchased by Eve Frone for the sum of $300, and she took the sheriff's deed. Yery shortly after, Eve Frone conveyed the property to the defendant, Naughright, for the consideration of one hundred dollars. The complain- ant's deed and judgment, under which he holds, are sub- sequent in point of time to both mortgages, and also to the judgment confessed to Eve Frone and to the deed under which Naughright holds. The bill alleges that the mortgage by Frone to Naughright, and the confessed judgment, and the deed from Eve Frone, are fraudulent, and were contrived by John Frone, Eve Frone, and John Naughright to defraud the complainant, as a creditor of John Frone, and to protect and cover up the property. The answer of John Naughright is a full denial of the charges of fraud made in the bill. The burthen of proof is, therefore, upon the complainant, and the only question is, whether the fraud is made out by the evidence ? And first, as to the alleged fraudulent mortgage. The allegation of the bill is, that at the time the mortgage was executed, John Frone was not indebted to the defendant, but that the defendant was at that time security for John Frone for $250, and that the mortgage was made to in- demnify the defendant against any loss or damage he might sustain as such security, and that no damage or loss has been sustained by the defendant. The defendant satisfactorily proves, that prior to the execution of the mortgage, he was security for debts of Frone to the amount of the consideration of the mort- gage, and that he paid those debts, and that the debts were bonafide debts, and which, as security, the defendant was bound to pay. There is no evidence offered by the complainant to sustain his bill in this particular. He does prove, that at the time the mortgage was executed, the defendant knew of the existence of the complainant's FEBRUARY TERM, 1855. 301 Jones v. Naughright. debt against Frone. This fact in no wise impeaches the defendant's mortgage. He had a perfect right to secure himself in this way, although he knew at the time that the complainant was prosecuting his claim at law, and that the effect of it would be to defeat the complainant in realizing his debt. A debtor has a perfect right to pre- fer a creditor, and he may make that preference by a mortgage, as well as by any other mode of security. The mortgage is valid subsisting encumbrance upon the prem- ises. As to the judgment. The bill charges, that at the time the judgment was confessed, Eve Frone was a very aged and infirm woman, and was living in the family of her son John, and was dependant upon her children for her support and maintenance ; that at the time the judgment was confessed, her son did not owe her the money, but that the judgment was concocted by John Frone, John Naughright, and herself, for the purpose of fraudulently covering up the property of John Frone ; that the judg- ment was not confessed at the request of the said Eve Frone, but by the solicitation of her son and John Naugh- right. As further evidence of the fraud, it is alleged that the property, both real and personal, was struck off to her upon the bids of other persons, but not at her request ; that after the sale, John Frone remained in possession, and that she purchased the real estate for the sum of three hundred dollars over and above the encumbrances, and immediately afterwards sold it for the sum of one hundred! dollars. I think it is very clearly proyed that the sum for which the judgment was confessed was a debt justly and honestly due and owing from John Frone to his mother, and that the circumstances upon which the complainant relies to make out that the judgment was not fyona fide are so ex- plained as not to warrant that conclusion. It is proved by a witness examined by the complainant, that Eve Frone sold an interest in some land which she VOL. ii. 2 302 CASES IN CHANCERY. Jones v. Naughright. held in the state of New York for $1800 ; that the wit- ness, as her attorney, collected for her of this money be- tween - eight and nine hundred dollars ; that John Frone was largely in debt, and that the witness, at the request of Eve Frone, paid out all this money to liquidate these debts, except about one hundred dollars ; that the judg- ment was confessed to secure this money, and that the witness made up the account for the attorney, to enable him to prepare the necessary papers for the judgment. It was argued, by the complainant's counsel, that the money thus paid out by her attorney was intended by Eve Frone as a gift to her son, and was made to assume the character of a debt, contrary to the original intention of the parties, merely to defraud the complainant. But there is no evidence to warrant this conclusion. The mo- ney had been advanced but a short time previous, and the pecuniary circumstances of Eve Frone were not such as to justify such generosity. The complainant, by virtue of the judgment and execution he subsequently recovered against John Frone, sold the personal property, which Eve Frone purchased under her judgment and execution. She realized nothing from the real estate, in consequence of the encumbrances upon it, and she died in the poor- house of the county. As to the judgment not being confessed at her request, it is proved, by the attorney, that she was present, and advised with him in reference to it, and that, at her re- quest, he bid for the real estate, and had it struck off in her name. It is true John Frone remained in possession after the sale ; but this is sufficiently explained by the fact that his mother was living with him. It was perfectly consistent with the ~bonu fides of the transaction, the mother and son living together, that the son should continue in the control and management of the property. The subse- quent sale of the property for $100, after purchasing it for $300, is explained from the circumstances of there being heavy encumbrances upon the property, the interest of FEBRUARY TERM, 1855. 303 Jones v. Naughright. which Mrs. Frone was unable to keep down. A foreclo- sure was inevitable, and she therefore made the best bar- gain in her power with the mortgagee. It is true, as was insisted, that the money for which the judgment was confessed might have been honestly due, and yet the judgment not bonafide and that if it was con- fessed not for the purpose of securing the debt, but as a fradulent cover to the property, and to protect it from another creditor, it should be set aside as fraudulent. But to establish the fraud in such a case, the proof of it should be clear and satisfactory. The fraud must be proved. It would require very strong and convincing circumstances, unexplained, to justify the court to infer a judgment fraudulent, where it was proved, beyond a doubt, that the debt was justly and honestly due. Such was not only the fact with this debt, but it was a meritorious debt, and John Frone would have been perfectly justifiable in secur- ing it, even without the solicitation of his mother. The case made out by the evidence is nothing more than the ordinary one of a debtor preferring one creditor to another. There was considerable evidence offered to show that the consideration paid by John Naughright to Eve Frone for the real estate was inadequate. This evidence was proper, as bearing upon the allegation, that the judgment was used as a means only to protect the property, and get it beyond the reach of the complainant's judgment. But the testimony is very conflicting as to the value of the property, some witnesses testifying that the property was worth less, and others more, than the defendant gave for it. The difference, as to the value set upon the pro- perty, shows that no inference of fraud ought to be drawn from inadequacy of the consideration. 304: CASES IN CHANCERY. Ward v. Peloubet. JOHN WARD and others vs. ALEXANDER O. PELOUBET and others. CONSTRUCTION OF WILL. " I give and bequeath unto nay beloved wife, Susan Ward, all my property, 1 both real and parsonal, to be disposed of in such manner as she may think ' proper for the benefit of the family ; it is my wish that my youngest daugh- ' ters, Mary and Caroline, shall have an education equal to my daughter ' Phebe, and my two sons, Sydenham and John, to be educated and fully 'prepared to enter college, or the study of a profession; but provied either ' of them should not choose to have such an education, the one who does ' not to be made equal in property to the expense of educating the other, ' in which case the mother is to be judge, or in case of her decease my ex- ' ecutors, whom I shall appoint. After the children arrive at age, I leave it ' discretionary with Susan, my loving wife, what donation to make them ' out of the property, and in case of her decease or marriage to be left with ' the executors, whom I shall hereafter name, but in every respect I wish ' them made as near equal as can be." Testator appointed his wife, his brother and brother in law executors. The wife alone proved the will, the others renounced. Held, that Susan Ward took the property in trust for herself and children while she lived and remained his widow ; that the property was to be used for their mutual benefit, " in sucha manner as she might think proper," ex- cept in the particular specified by the testator, and so that in every respect the children should have an equal share of his property. That Susan Ward had no right to dispose of the property in question by will, that it belonged to the children by the will of their father, and is to be di- vided among them equally. W. Pennington, for complainants. Amzi Dodd, for defendants. THE CHANCELLOR. The determination of this case de- pends upon the construction of the will of Enos Ward, deceased. The will is brief, and as every clause of it has a bearing upon the question involved, I give it at length. " First. It is my will and I do order that all my just debts and funeral expenses be duly paid and satisfied as soon as conveniently can be after my decease. 2d, I give and bequeath unto my beloved wife Susan Ward all my FEBKUAKY TEEM, 1855. 305 Ward v. Peloubet. property both real and personal to be disposed of in such manner as she may think proper for the benefit of the family it is my wish that my youngest daughters Mary and Caroline shall have an education equal to my daughter Phebe, and my two sons Sydenham and John to be educated, and fully prepared to enter college or the study of a profession, but provided either of them should not choose to have such an education the one who does not, to be made equal in property to the expense of educating the other, in which case the mother is to be judge, or in case of her decease my executors whom I shall appoint. After the children arrive at age I leave it discretionary with Susan my loving wife what donation to make them out of the property, and in case of her decease or mar- riage to be left with the executors whom I shall hereafter name, but in every respect I wish them made as near equal as can be. Lastly, I hereby appoint my loving wife Susan "Ward, my brother Joseph P. Ward, and my brother in law John Sydenham executors, &c., and guardians to my children during their minority." The testator left considerable real and personal estate, which went into the possession of Susan Ward. She alone proved the will, the other persons named as execu- tors having renounced. The testator died on the twenty- fourth day of January, eighteen hundred and twenty- eight. On the fourth of August, eighteen hundred and fifty-two, Susan Ward died. She left a will, by which she disposes of. the eastate which came to her by the will of her husband as follows : " The estate of my husband Enos Ward which he left me in charge, and all my pro- perty, both personal and real, except that herein previ- ously disposed of to be divided among my five remaining children, viz. Phebe Pelonbet, wife of A. O. Pelonbet, Sy- denham T. Ward, Mary E. Grummon, wife of Robert M. Grummon, John Ward and Rhoda Ward, excluding my daughter Hannah Peloubet, now deceased, and the heirs of her body." 2 o* 306 CASES IN CHANCEKY. Ward v. Peloubet. Thus it will be seen that, by the will of Susan Ward, one of the children was excluded from any portion of the estate of Enos Ward, deceased, remaining in the hands of Susan "Ward. The question is, what estate did Susan Ward take under the will of her husband, and what in- terest, if any, had the children in that estate ? On behalf of the complainant, it is contended, that Susan Ward took an absolute estate, and had a right to dispose of the property without any regard to the wishes of her husband, as expressed in his will. In the case of Raikes v. Ward (1 Hare 445), the lan- guage of the will was : " I gave to my dear wife Marianne all my moneys, security for money, goods, chattels, and personal estate whatsoever, to the intent that she may dispose of the same for the benefit of herself and our children, in such manner as she may deem most advan- tageous." The Vice Chancellor decided that the wife did not take an absolute estate. He reviews a krge number of authorities bearing upon the question. The cases may also be found cited in 1 Jannan 332. I have no difficulty in determining the estate which Susan Ward took under the will of her husband, and the authorities are such as to cause no embarrassment in giving a construction to the the will. The testator gives his estate, real and personal, to his wife. But he does not stop here. He expresses the pur- pose for which he gives it to her, " to dispose of in such manner as she may think proper for the benefit Xff the family." The language, "in such manner," if not ex- plained, might give her an unlimited control over the property. But the testator immediately proceeds to qualify this language, and to limit its natural import In doing so, he makes use of the expression " it is my wish." Taken in connection with what follows, this language is to be construed the same as if he had said, it is my will. He directs how the property shall be expended in the education of his children, and his intention is manifest FEBRUARY TERM, 1855. 307 Ward t>. Peloubet that they should be equally benefitted in his property. For, after directing how two of his sons should be edu- cated, he declares, " that in case either of them should not choose to have such education, the one who does not, to be made equal in property to the expense of educating the other, the mother to be the judge, or in case of her decease, my executors." When the testator, therefore, uses the language "to dispose of in such manner," he means to leave the disposal of the property discretionary with the wife, except in particulars in which he has made a disposition of it. Again. The testator t disposes of the property at the death or marriage of his wife : " After the children arrive at age I leave it discretionary with Susan my wife what donations to make them out of my property." This, standing alone, would look like a discretion to the wife to make such donations to the children as she pleased, and dispose of the residue at her pleasure. But then fol- low immediately a clause giving, in case of the death or marriage of the wife, this same discretion to the execu- tors. Then the testator concludes his wish, or will, re- specting the property in the emphatic language, " but in every respect I wish them (my children) made as near equal as can be." It appears to me plain that it was the intention of the testator to give the property to his wife, in trust for her- self and children while she lived and remained his wi- dow ; that the property was to be used for their mutual benefit, " in such manner as she might think proper," except in the particulars specified by the testator, and so that in every respect the children should have an equal share of his property. I am of opinion, therefore, that Susan Ward had no right to dispose of the property in question by will ; that it belongs to the children, by the will of their father, and is to be divided among them equally. CITED in Van Duyne v. Van Duynf, 1 McCar. 400. 308 CASES IN CHANCERY. "Wallace v. Brown. ELIZA B. WALLACE vs. JOHN W. BBOWN, surviving execu- tor, and others. A. employs B., as his agent, to purchase a house for him. B. makes the pur- chase, takes the deed in his own name, and pays his own money for it. A. cannot compel B. to convey. It is within the statute of frauds, which requires the contract to be in writing. In order to take the case out qf the statute, on the ground of part performance, two things are requisite, the terms of the contract must be established by proofs to be clear, definite, and unequivocal, and the acts relied on as part performance must be exclusively referable to the contract. The disposition of courts at the present day is to limit, rather then extend exceptions to the statute. B. Gummere and M. Heasley, for complainant. Jno. C. Ten Eyck, for defendant. THE CHANCELLOR. Abraham Brown purchased the pro- perty in question of Thomas McClintock for $3500. He took the deed in his own name, and paid his own money for it. The complainant alleges that he purchased the property for her. She proves, that at the time he negotiated the purchase, he told Mr. McClintock he was purchasing for the complainant, and that after he received the deed, he said the property belonged to the complainant. If from these facts it is a fair inference that Abraham Brown made a parol agreement with the complainant to purchase the property for her, yet a bill for specific performance could not be maintained upon such an agreement. It is within the statute of frauds, which requires the contract to be in writing. A. employs B., as his agent, to purchase a house for him ; B. makes the purchase, takes the deed in his own name, and pays his own money for it. A. can not compel B. to convey. 2 /Story, 1200, note 1. But the complainant replies upon part performance. She alleges that Abraham Brown put her in possession under FEBRUARY TERM, 1855. 309 Wallace v. Brown. the agreement ; that she put large repairs on the property, and that she subsequently paid upon the agreement, in different payments, a large part of the purchase money. The answer admits that the complainant entered into the possession of the property immediately after its purchase, and has continued in possession ever since. It admits the amount of the payments alleged in the answer, but denies the parol agreement, and sets out the writing, dated in 1840, signed by Abraham Brown, and which the answer alleges was found among the testator's private papers, and insists is the agreement upon which the payments were made. The defendants tender themselves ready to perform this agreement. Between the alleged parol agree- ment and this writing there is a difference of $500, as to the amount of the purchase money to be paid by the com- plainant. This difference has given rise to this suit. As the matter stands, the only question is, whether the defendants shall be decreed to convey upon the terms Mr. Brown purchased of McClintock, or upon those specified in the writing found among Mr. Brown's papers ? In order to take the case out of the statute, on tne ground of part performance, two things are requisite. The terms of the contract must be established by proofs to be clear, definite, and unequivocal, and the acts relied on as part performance must be exclusively referable to the con- tract. Whenever those principles are departed from, the statute is violated, and one of its main objects, the pre- vention of setting up pretended agreements, and then supporting them by perjury, is defeated. To establish the parol agreement in this case, the complainant relies, in part, upon Mr. Brown's declaration to a third 'person, that he was purchasing for the complainant, and upon the im- mediate possession and part payment of the purchase money, as the evidence of the part performance of the agreement. Now, from this mere declaration of Mr. Brown, the court is asked, not only to presume the existence of a contract between the parties, but to conjee- 310 CASES IN CHANCERY. Wallace v. Brown. ture the terms of that contract, to wit, that Mr. Brown was to convey to the complainant upon the same terms as he purchased of McClintock. And as to the possession, as there is no evidence whatever upon what contract or terms the complainant took the possession, the court is to presume, also, that the possession is referable exclusively to the contract. There are cases to be found when courts have undertaken to frame contracts for the parties, ex ceguo et J)ono^ where none existed. These cases have been overruled, however, by many recent authorities ; and there is a disposition in courts at the present day, in which I strongly participate, to limit, rather than extend exceptions to the statute. The reason given why mere possession, where the terms of contract are clearly proved, and the possession shown exclusively to refer to the contract, has been adjudged sufficient to take the case out of the stat- ute, appears to me very unsatisfactory. To determine any act a part performance, it is essential that the act should be one prejudicial to the party seeking the bene- fit of it ; for the principle upon which courts execute the contract is to pi event the commission of a fraud with impunity. The act of possession is said to be prejudicial in this way. The party in possession may be sued as a trespasser and for the profits of the land, and if he could not give the parol agreement in evidence he would be without protection. But it appears to me the propriety of permitting a party to defend himself by making the parol agreement admissable, may well be admitted with- out admitting the necessity, in order to prevent fraud, of permitting a party, as an actor in court, to enforce the specific performance of such an agreement. This matter, however, is settled by many well adjudged authorities. None have gone so far as I should be obliged to go in this case, should I declare the declaration of the party already referred to, and the mere possession, as it existed, suffi- cient to establish the terms of the agreement, and its part performance, so as to justify a decree for the complainant. FEBKUAKY TERM, 1855. 311 Wallace v. Brown. But in addition to the possession, the complainant proves repairs to an amount of upwards of six hundred dollars, and payment of mpre than three thousand dollars in mo- ney. There is sufficient evidence to show that the repairs were made by the complainant, not as tenant, but as claim- ing to be the owner of the house, and that the payments were made on account of the purchase money. The com- plainant insists they were made upon a parol agreement between the parties, the terms of which were the same as the terms of purchase between Brown and McClintock. The defendants do not deny the object or character of the repairs and payment, but do deny that they were made upon the contract, as alleged in the bill, and insist that they were made in pursuance of the writing set out in their answer. If this was an ordinary agency merely of Mr. Brown, acting in the purchase on behalf of the complainant, why did he take the deed in his own name, and why was it that no payment was made until four years, and then again until more than eleven years after Mr. Brown ad- vanced his money ? These circumstances are explained by showing that Mr. Brown was a friend of the complain- ant always ready to aid her and relieve her when in trouble, and that the complainant had not the means to pay the purchase money. But these explanations -destroy every presumtion, which the complainant might otherwise be entitled to, that Mr. Brown acted in the purchase as the mere agent of the complainant, and that on that account she, as the principal, is entitled to the benefit of the terms of purchase made by the agent. The whole evidence conclusively shows that Mr. Brown did not purchase as the mere agent of the complainant. If he did not, then the complainant totally fails to prove any parol agreement, the terms of which can in any way be ascertained ; and if no agreemcjit, the terms of which can be ascertained, is proved, the court cannot make one 312 CASES IN CHANCEKY. Wallace v. Brown, for the parties- The declaration of Mr. Brown, which is the only evidence the complainant adduces, was to the effect, that he was acting as the complainant's agent. This being disproved by all the subsequent dealings of the parties, there is not a particle of evidence to show any parol agreement, and no guide to ascertain the terms of such an agreement. If, then, the complainant is entitled to a specific per- formance, it is upon the agreement admitted in the an- swer. The complainant objects to the admission as evi-* dence of the paper produced and signed by Mr. Brown. It is alleged to be a paper made by the adversary, and the existence of which was not proved to be known to the complainant. If the parol agreement had been distinctly proved, and its part performance, so that the court could have felt justified in making a decree upon it, then the admissibility of this writing would have been important. The question would then have been, which agreement of the two should be performed ? But since, according to the view taken the complainant is not entitled to a spe- cific performance of the alleged parol agreement, and can only have a decree upon the agreement as it is ad- mitted in the answer, the question raised as to the admis- sibility of the evidence is unimportant, as far as the com- plainant is concerned. I deem it proper to say that I think there is evidence enough of a circumstantial charac- ter to justify the conclusion, that the terms of the writing produced as the evidence of the terms upon which the complainant was entitled to have the property, were re- cognized by the complainant, and that Mr. Brown accept- ed the payments upon those terms, and no other. The complainant may have a decree for specific performance, if she is willing to comply with its terms, as set out in the answer. An amendment of the bill is not necessary. Dan. Ch. P. 513, 514 Story E. P. 394. There was a misunderstanding between the parties. They both acted in good faith, and no blame can properly FEBRUARY TEEM, 1855. 313 Garret v. Stilwell's executors. be attached to either. The only question of doubt with me is as to the costs. If when the defendants were called upon for the deed, and the tender made them, they had placed their refusal upon the ground that they were only bound to perform upon the terms of the writing, and had tendered themselves ready to perform upon tfiose terms, I should be unwilling to make a decree in favor of the complainant, except upon her payment of all the costs of this suit. But from all the light I can derive from the evidence, it appears that the defendants refused absolutely to convey, alleging merely that there was more money due. There is no evidence that they stated the amount they demanded, or expressed any willingness to convey upon any terms. By their answer, they tender themselves ready, but do not aver that they were ready until the com- plainant was obliged to institute this suit. The decree will be made without costs. CITED in Ryno v. Darby, 5 C. E. Gr. 234. GARRET and others vs. JOSEPH R. STILWELL'S EXECUTORS and others. Joseph M. Stilwell and Joseph R. Stilwell were the administrators of Benja- min Stilwell. They were both deceased. The bill called upon the execu- tors of Joseph M. Stilwell for a resettlement, and to account for the estate of Benjamin Stilwell, and to pay complainants their distributive share. Held, that if they were entitled to a distributive share, they could not call upon the executors of a surviving administrator for any such account; that the executors did not represent the estate of Benjamin Stilwell. Benjamin Stilwell, at his death, left his brother, Joseph R. Stilwt'Il, and two sisters surviving him. The complainants were the heirs at law and next of kin of Joseph R. Stilwell. Held, that as they stood in the place of Joseph R. Stilwell, they had no right to complain of his fraudulently using what they claimed through him. W. iralstcd, for complainants. Cannon and W. L. Dayton, for defendants. VOL. n. 2 D 314 CASES IN CHANCERY. Garret v. Stilwell's executors. THE CHANCELLOR. The complainants cannot maintain this bill. They seek relief, alleging themselves to be the heirs at law and next of kin of Benjamin Stilwell, de- ceased, and, as such, claim the one-third part of the dis- tributive share of his personal estate and the one equal third part of his real estate. Joseph H. Stilwell and Jo- seph R. iStilwell were the administrators of Benjamin Stilwell. The bill alleges that the administrators fraud- ulently administered the estate ; that they exhausted the personal estate in the payment of false claims, and then fraudulently procured an order of the Orphans Court of the county of Burlington to sell the real estate, and used the proceeds of the sale in fraudulently paying other ille- gal claims. Joseph M. Stilwell and Joseph R. Stilwell are both deceased. The representatives of Joseph R. Stil- well are not before the court, but the bill calls upon the executors of Joseph M. Stilwell, one of the administrators of Benjamin Stilwell's estate, for a resettlement, and to account for the estate of Benjamin Stilwell, and to pay the complainants their distributive share of that estate. It is manifest, if the complainants are entitled to such distributive share, they cannot call upon the executors of a surviving administrator for any such account, and for the very plain reason, that the executors do not represent the estate of Benjamin Stilwell. The defendants have no more to do with those accounts than the complainants themselves have. But the complainants have no more right here, in the capacity of next of kin and heirs at law of Benjamin Stil- well, than the defendants have as personal representatives of his estate. The complainants show, by their bill, that they cannot claim in that capacity. Benjamin Stilwell, at his death, left his brother Joseph R. Stilwell and two sisters surviving him. The complainants are the heirs at law and next of kin of Joseph R. Stilwell, and if there is any estate of Benjamin Stilwell which Joseph R. was en- titled to, the complainants must claim through him, and FEBRUARY TERM, 1855. 315 Hunt 17. Hunt. as his heirs and next of kin. They now allege, by their bill, that Joseph R., through whom they claim, and his co-administrator squandered their intestate's estate. One- third of it belonged to Joseph R. S til well, through whom they claim. How can the complainants complain of his fraudulently using what they claim through him ? The complainants stand in the place of Joseph R. Stilwell, and their right to maintain this suit is no better than Joseph R. Stilwell's would have been had he been here as complainant. The foundation of their bill is, that the property they claim belonged to Joseph R. Stilwell. He had a right to do what he pleased with his own. It is just like a son calling the executors of his father to account for the property which his father had squandered, on the ground, that if the property had not been squandered, it would have come to him as the next of kin. What an extraordinary exhibition would have been made if Joseph R. Stilwell had filed a bill against the executors of his co-administrator, calling upon them to respond for a fraud which he, Joseph R. Stilwell, had committed in conjunc- tion with his co-administrator? And yet these proceed- ings exhibit just such a case. There are many other objections fatal to the complain- ants, but it is really treating the case too seriously to no- tice them. The bill must be dismissed with costs. WILLIAM E. HUNT vs. M. F. HUNT et al. A testator gives and bequeaths all his property in trust for the payment of certain annuities and legacies, and then says, " And to ray two aforesaid daughters I give and bequeath the residue of all my estates, real and per- sonal. Held, that the legal title to the residue passed by the will to the daughters. That the annuities and legacies were a charge upon the estate, but when they were satisfied the estate was discharged of all trusts. 316 CASES IN CHANCERY. Hunt v. Hunt. W. L. Dayton, for complainant. E. H. Grandin, for defendants. THE CHANCELLOR. The testator, by his will, disposes of his estate as follows : I give and bequeath to Col. Thomas Cadwalader and Philemon Dickinson, both resi- dents of Trenton and its vicinity, and of the county of Mercer, all my property, real and personal, in trust for the following purposes : First to pay all my debts as soon as convenient ; second, to allow my housekeeper, Ann Drake, twenty-four dollars yearly, during her natural life, payable half-yearly, and one quarter's wages in advance immedi- ately after my decease also my other hired dornetics ten dollars who shall be with me at the aforesaid time. To my son Israel Clarke three hundred dollars yearly paid in quarterly instalments and to my son Nicholas Bellville Clarke the same provided he the said Nicholas makes no demand of my estate, and prefers no claim, legal or other- wise, for monies said to be left him by his grandfather Nicholas Bellville, in which case this annuity shall cease, determine, and end, and shall be paid to my daughters Susan Elizabeth Hunt and Annie B. Clarke. And to my two aforesaid daughters I give and bequeath the residue of all my estates real and personal, together with the re- version of the two annuities left to my two sons after their decease. To my grandson James Clarke Hunt, the reversion of Ann Drake's annuity after her decease. And I hereby constitute, &c. The debts and legacies have all been paid. The annui- tants are all dead, except Ann Drake, and the annuities due them were all paid up to the time of their decease. William E. Hunt, the complainant, married Susan Eliza- beth Hunt. She died leaving four children surviving her. The complainant has since married Annie B. Clarke, the other daughter of the testator. The executors and trus- tees named in the will have since the testator's death been in the receipt of the rents and profits of the real estate of FEBEUAEY TEEM, 1855. 317 Hunt v. Hunt. the testator. The complainant, by this bill, calls upon the executors to account for the rents and profits. It is really an amicable suit to determine the true construction of the will. The counsel who drew the bill seemed to be under the impression that the legal title to all the real estate of tes- tator was vested in the executors, and that after the pay- ment of the annuities, the executors still held the estate as a trust estate for the benefit of the testator's daugh- ters, Susan Elizabeth Hunt and Annie B. Clarke. And under this idea, the complainant only asks, by his bill, that he may have the rents and profits of that portion of the estate which was given to his former wife Susan Elizabeth, claiming these rents and profits as tenant by the curtesy in the trust estate. But it appears to me very clear that there was no trust estate created by this will for the benefit of the daughters, and that whatever they take under the will is by direct gift from the testator. It is true the testator " gives and bequeaths " to Col. Thomas Cadwalader and Philemon Dickinson all his property, real and personal, but for what purposes ? He specifies those purposes. They are the payment of certain annuties and legacies. But after these arcj named, he does not then create a trust estate for the benefit of his daughters. After the fulfil- ment of the trust, there remains a residue to be disposed of. The testators gives it direct to his daughters without any intervention of trustees. His language is, " and to my two aforesaid daughters I give and bequeath the re- sidue of all my estates, real and personal." Over this re- sidue these trustees have no control. The estate given to the daughters does not partake of the nature of a tr,i.f. Suppose the will was, " I give all my estate, real and per- sonal, to Col. T. C. and P. P. in trust to pay A. D. four 2D* 318 CASES IN CHANCERY. Hunt c. Hunt. hundred dollars, and all the rest and residue of my estate, real and personal, I give and bequeath to my two daugh- ters, S. E. H. and A. B. C." In such case, it certainly would be very clear that legal title would pass to the daughters, subject to the payment of the $500. These annuities and legacies are nothing but a charge upon the estate. When they are satisfied, the estate is discharged of all trusts, and the legal estate passes, by virtue of the devise and the express language of the will, to the two daughters. The will gives nothing to the trustees for the benefit of the daughters. What it gives to the daughters it gives them direct. " To my two aforesaid daughters, I give and bequeath the residue," &c. The rights of the husband, therefore, in this estate are the rights which a husband has in an estate of fee simple of his wife. The complainant jure mariti, as the husband of Susan E. Clarke, is entitled to all the residue of the personal estate of the testator and of all the rents, issues, and pro- fits of the real estate in the hands of the executors at the time of her death ; and, as tenant by the curtesy, he takes a life estate in the residue of the real estate which belonged to her under her father's will, and, as such, may dispose of it during his life. As the husband of Annie B. Clarke, the complainant ia entitled to all the residue of the personal estate of the testator, and of all the rents, issues, and profits of the real estate in the hands of the executors, except such as had been paid to her previous to her marriage. The com- plainant is entitled to an account as soon as the trusts of the will are performed, or properly secured by a decree of this court. All the legacies have been paid, and all the annuities are extinguished, except that of Ann Drake. This is an annuity of twenty-four dollars a year, the re- vision of which now belongs to James C. Hunt. There are more than funds sufficient in the hands of the executors to secure this annuity. FEBKUAKY TEEM, 1855. 319 Hunt u. Hunt. There must be reference to a master to take an account of the personal estate and of the rents of the real estate of the testator now in the hands of the executors, making all just allowances, and to state what sum will be sufficient to remain in the hands of the executors as a principal to secure the annuity to Ann Drake. CASES ADJUDGED IN THE COURT OF CHANCERY OF THE STATE OF NEW JERSEY, MAY TEEM, 1855. JOHN MILLER vs. MAKT HKNDEESON et al. M. D. W., A. P. W., C. W., and M. W. entered into an agreement with G. D. A. to convey to him a tract of land for $400. G. D. A. paid down $150 on the agreement, and was to have a deed on the payment of the balance of the money. G. D. A. assigned the agreement to J. C., as security for the payment of a note of $150. J. C. died, leaving several children her heirs at law, and a will, with one J. H. executor. The heirs at law of J. C. as- signed the agreement, for the consideration of $200, to C. "W., one of the original parties to the agreement. C. W. then assigned the agreement to the complainant. M. D. W., A. P. W., and C. "W., three of the parties to the original agreement, died, leaving M. W., another party to the agree- ment, surviving. The bill is filed against M. W. and W. P. S., the executor of C. W., for a specific performance. The heirs at law of J. C. had no right to assign the agreement. She held it merely as a mortgage security, and her interest in it passed, at her death, to her executor, and not to her heirs at law. The bill does not show that the heirs of J. C. could make any title to the agreement. M. W. and A. P. W., original parties to the agreement, being dead, their heirs at law should be parties to the suit. G. D. A., the party of the second part to the original agreement, being dead, his personal representative should be a party to the suit. G. D. A., having assigned the agreement only as collateral for a debt, retained an interest in the agreement. MAY TERM, 1855. 321 Miller v. Henderson. Where the mortgagee assigns the mortgage absolutely to a third person, ha is not a necessary party to a foreclosure suit. But if the assignment is not absolute, then he is a necessary party. The bill is filed to compel the specific performance of an. agreement. The defendants filed a general demurrer to the bill. Sufiicient of the case appears in the opinion of the Chancellor to understand the points decided. 3. Beasley, in support of the demurrer. W. Hoisted, contra. THE CHANCELLOR. The demurrer is well taken on seve- ral points. The original agreement was made on the 31st of May, 1834, and purports to be between Mary D. "Wright, A. P. Wright, Charles Wright and Mary Wright, heirs at law of Joshua Wright, deceased, of the one part, and George D. Abrahams of the other part, by which the par- ties of the first part agree to convey to the party of the other part a lot of land containing five acres, for the con- sideration* of eighty dollars an acre. On the making of the agreement, Abrahams paid down one hundred and fifty dollars. The deed was to be made when the residue of the purchase money was paid. On the 13th of September, 1836, Abrahams endorsed on this agreement his prommissory note, by which he agreed to pay, to the or- der of Jemima Chambers, three hundred and fifty dollars, with interest, twelve months after date ; and he then as- signed to her all his interest in the said agreement, to se- cure the payment of the said note, the said assignment to be void when the note was paid. In 1838, Jemima Cham- bers died, leaving several children, and one of them an infant. She left a will which was proved by Joseph Ilow- ell, the executor thereof. On the 21st of May, 18-41, the children of Jemima Chambers, then of age, and the one an infant, by her guardian, for the consideration of two hundred dollars, 322 CASES IN CHANCEKY. Miller v. Henderson. assigned the said agreement to Charles Wright, one of the original parties to the same. On the 13th of March, 1852, Charles Wright, for the consideration of $200, assigned the said agreement to the complainant. Mary D. Wright, Aaron P. Wright and Charles Wright are dead. The bill does not state who are their heirs at law. The bill is filed against Mary Henderson, formerly Mary Wright, the only surviving party to the original agreement. She afterwards married one Henderson, who is deceased. There is but one other defendant, William P. Sherman, the executor of Charles Wright. There is no one before the court to represent Mary D. and Aaron P. Wright. According to the case made by the bill, the complain- ant does not show himsslf entitled to maintain this suit. He claims title through the heirs at law of Jemima Cham- bers, who assigned the agreement to Charles Wright. The bill ought to show what right these heirs had,to assign the agreement. Jemima Chambers held it merely as a mort- gage security. At her death it belonged to her personal representative, and not to her heirs at law. She left a will. Her interest in the agreement passed to Joseph Howell, her executor, unless specifically disposed of by the will. Her heirs at law could no more convey a good title to the agreement than could a perfect stranger to the transaction. On this ground the demurrer is well taken. The bill is defective for want of parties. Mary and Aaron P. Wright are not represented before the court. At their death, their respective interest in the land de- : scended to their heirs at law, and those heirs should be 'made parties. The bill does not state who they are. It may be that the defendant, Mary Henderson, is the sole heir to . each of the deceased parties to the agreement. This, however, is mere conjecture. If it is so, the bill is .defective, for the reason it does not show this fact. Abrahams is dead, and his personal representative MAY TERM, 1855. 323 "Wilson v. Gray. should be a party to the suit. Abrahams did not assign his interest in the agreement absolutely to Jemima Cham- bers. It was a conditional assignment, and he retained an interest in the property assigned. Where the mortga- gee assigns the mortgage absolutely to a third person, it is not necessary that the mortgagee should be a party to the suit for the foreclosure and sale of the mortgaged pre- mises. But if the assignment is not absolute, but the mortgagee retains an interest in the mortgage security, then he is a necessary party, because he is interested in the suit, and particularly in taking the account of what is due on the security. For the same reason, Abrahams' per- sonal representative should be before the court. CITED in Ackerson v. Lodi Branch R. R. Co., 1 Stew. 543. DOUGIITEX and WILSON vs. GRAY, assignee, et al. M. K. and TV", made an assignment for the -benefit of creditors. On the per- sonal property assigned there was a mortgage, the bona fides of which was not disputed. The assignee having sold the property, and converted it into money, the mortgagee, or person claiming under him, has an equit- able lien on the proceeds of sale for the payment of the mortgage. The interest of a mortgagee in personal property, where the possession re- mains with the mortgagor, and before condition broken, cannot be taken' in execution as the property of the mortgagee. A mortgagor's interest in personal property is the subject of execution and sale, a mortgagee's inter- est is not. In New Jersey, the same doctrine prevails as to the respective rights of mort- gagor and mortgagee of personal projxnty, and as to the character of their respective interests, as governs mortgages of real property. A judgment and execution creditor of the mortgagee may file a bill of dis- covery against an alleged fraudulent assignee of the mortgagee, and if the ossignment is fraudulent, the creditor is entitled to the mortgage fund. The statute avoids all difficulty which might have existed to a creditor'* maintaining his bill for a discovery as to property not subject to execution. An assignment may be fraudulent although it was made for a valuable con- sideration. If the purchase was not bona fide, but was made to defraud creditors, the assignment is not valid, although an adequate consideration was given. Under the circumstances, the court drclared the assignment good only so far as to reimburse the assignee for the actual advan by him. 324 CASES IN" CHAKCERY. Wilson v. Gray. The bill alleges, that on or about the 3d day of May, 1853, Benjamin M. McMurtrie, Julius King, and Peter Williamson were partners, doing business in Gloucester City, in this state ; that they became indebted to the com- plainant in the sum of $567. TO, for which they gave their note at three months ; that on the 5th day of December, 1853, the complainant recovered judgment on said note against the drawers thereof, issued execution thereon, and caused a levy to be made on certain personal property, in the said bill afterwards mentioned as mortgaged to the said Peter Williamson, and also assigned to Philip J. Gray, as assignee ; that on the 1st of August, 1853, Williamson retired from the firm, having sold his interest to the other partners, for the sum of about $2000, and took as security a mortgage on all the property and effects belonging to the said partnership being in Gloucester City, their then place of business, which mortgage was dated the 15th of August, 1853, and recorded on the 17th day of August, 1853. The bill charges, that this mortgage vested the le- gal estate of the property so mortgaged in the mortgagee, Peter Williamson ; that Williamson pretends, that on the 17th day of December, 1853, he assigned the said mort- gage to James Molyneux, for paying a debt for money lent and advanced to said Molyneux to him and various other debts by said Williamson then owing to sundry persons, in consideration of the release of said debt of said Moly- neux and of the further sum of $764.10 paid, but that the complainants had no notice or knowledge of said assign- ment. The bill charges the assignment of the mortgage to be fraudulent, to defeat the claim of the complainant ; that the assignment, if made at all, was on the 17th of Decem- ber, after the judgment and levy of the complainant, and is therefore subject to the same ; that the property mort- gaged was the machinery with which the firm carried on business, and that after Williamson withdrew from the firm McMurtrie and King carried on the same business, MAY TEEM, 1855. 325 Doughten v. Gray. and continued in the use of the same machinery and pro- perty mentioned in the mortgage until about the 8th of October, 1853, when they became embarrassed, and made a general assignment of all their partnership to Philip J. Gray; that said Gray, as such assignee, on the 14th of December, 1853, after the complainants' judgment and levy, and previous to the assignment to Molyneaux, sold the property to assigned, and realized from such sale about the sum of $10,000, which he now holds for the benefit of the creditors. The bill charges, that the assig- nee's sale was made with full notice of the said mortgage, and judgment, and levy, and insists that the legal estate 'of the said personal property, by virtue of said mortgage, was vested in said Williamson, and that the said mort- gage is a lien upon the funds in the hands of the said as- signee, which funds now represent the said mortgaged property ; and that the mortgage is entitled to priority of payment out of the proceeds of sale, and that by reason of his judgment and execution against "Williamson, as well as McMurtrie and King, and the levy upon the inte- rest of the said Williamson in the mortgage property prior to the assignment, the complainant has a right to have his judgment and execution satisfied out of that part of the funds in the hands of the said assignee due to said Williamson or James Molyneaux on the said mortgage. The bill further insists, that if the complainants are mis- taken as to their lien on the mortgage property, by virtue of the legal rights which Williamson had therein, then they insist, that the assignment to Molyneaux being fraudulent, they have, by virtue of the statute, a right to a discovery from Williamson, and to receive from the assignee, out of the moneys due from the assignee to Williamson on his mortgage, sufficient to satify their judgment execution. Philip J. Gray, the assignee, filed his answer to the bill He admits all the allegations of the bill, except that he denies having any knowledge of the mortgage at the time of the assignment to him ; and he also denies knowledge Vol. n. 2E 326 CASES IN CHANCEBY. Doughten v. Gray. of any fraud in the assignment, and submits his rights as assignee to the decision of the court. James Molyneaux also filed his answer. He alleges that the bond and mortgage were assigned to him on the 17th day of December, 1853 ; that the consideration of the assignment was the sum of $175, for money before that time lent and advanced by him to Williamson, and also the sum of $764.10, paid by him to Williamson in cash ; that the purchase of the said bond and mortgage was bona 'fide ; that at the time he had no knowledge of the judgment of the complainants, or any suspicion of it : he particularly and fully denies any fraud, or that the as- signment was made to him except in good faith and for any other than the consideration stated. THE CHANCELLOK. The first question to be determined is, whether the bond and mortgage made by McMurtrie and King to Peter Williamson are bonafide securities, and entitled to priority of payment out of the funds in the hands of the assignee, Philip J. Gray. The bill does not question the bona fides of the bond and mortgage. On the contrary, the equity of the com- plainant is founded on the validity of these securities. Nor does the assignee question their validity. We must assume, therefore, that the dissolution of the partnership existing between McMurtrie, King and Williamson was in good faith, and that the bond and mortgage were exe- cuted honestly, and as a fair consideration to Williamson for his interest in the concern ; and that the withdrawal of Williamson from the firm, and the assumption by Ben- jamin McMurtrie and Julius King of the partnership debts, was made honestly and without any intention to defraud either the complainants or any other creditor of the firm. From the character of these pleadings, we are relieved from considering to what extent subsequent lona fide creditors are affected by a chattel mortgage such as this, when the property is suffered to remain in the cus- tody and use of the mortgagor. When the assignment MAY TERM, 1855. 327 Doughten o. Gray. was made to Gray, the mortgage was a valid and subsisting lien upon the property assigned. The assignee having sold the property, and converted it into money, the person who can legally claim under the mortgage has an equitable lien upon the funds in the assignee's hands for the payment of this security. The next question is, who is entitled to the mortgage fund ? James Molyneaux claims it by virtue of his assign- ment. The complainants claim it on two grounds : first, by virtue of a legal and equitable lien, which they insist is superior to the right of the assignee, admitting his assignment to be valid ; and secondly, they contend that the assignment is fraudulent, and under that aspect of the case insist, that as judgment creditors of Williamson, they have a right to a discovery of his assets in the hands of the assignee of the mortgage, and to have the mortgage money appropriated to the payment of their debt. The complainants recovered a judgment against Mc- Murtrie, King rted in the numerous authorities referred to by the counsel and court in the report of the last named ca-^e. I have examined more fully this branch of the case, because it was very fully argued by counsel ; and for the purpose 360 CASES IN CHANCERY. Morris and Essex Railroad Co. v. City of Newark. of showing that no fair inference can be drawn against the right, set up by the complainants, from the fact that their charter provides no mode of compensation to land owners adjacent to public highways. But the charter of the company does expressly provide for the mode in. which public highways, are to be used by them in the con- struction of their road, and imposes a duty upon the com- pany in appropriating them to such use. Immediately after providing the mode by which lands of individuals may be acquired and taken, it is enacted, " that it shall be the duty of the company to construct and keep in repair good and sufficient bridges or passages over or under the said railroad or roads, where any public or other road shall cross the same, so that the passage of carriages, horses, and cattle on the said road shall not be impeded thereby." There is no other provision in the charter respecting the land which the company is to take and occupy for the purposes of their road. It will thus be seen that ample provision is made for the company's taking private pro- perty, and in reference to their crossing public highways. Whence do they deprive their right to occupy the public highways longitudinally, and thus appropriate themtotheL* own use ? Their authority must be found, if anywhere, in their act of incorporation. It is not expressed- in thj act ; and if it can be derived from it all, it must be b / implication. Is any such right to be implied from th) charter, which clothes the complainants with all the legal power they possess ? The complainants are authorized t ) construct a railroad from Morristown to Newark. That was the object of their incorporation; and it is manifest, from the whole act, that it was the intention of the legis- lature to confer all the powers necessary to enable the corporators to cany out the object for which they were incorporated. I do not think that, because the legislature intended to confer upon the company all the powers neces- sary for them to carry out the object for which they were incorporated, they are therefore necessarily clothed MAT TEEM, 1855. 361 Morris and Essex Railroad Co. r. City of Newark. with all powers to meet that necessity, and that where not expressed^ such powers are to be derived by implication. In a limited sense, the proposition is true. It is true, as a general proposition, when the power sought to be implied does not take away or impair the legal rights of individ- uals or of any other corporation. Suppose the general power had been conferred to construct a railroad from Morristown to Newark, without anything being said as to the occupation of land, or the mode of acquiring it, the power to /told land for the purpose would llow as a neces- sary implication from the character of the franchise ; but the power to take the land without the consent of the laud owner would not be implied, even irrespective of the con- sideration of any constitutional difficulties that might be interposed. In the case of The Inhabitants of Springfield v. The Connecticut River Railroad Company ( dishing* s Rep. 63), to be found in 1 American Railway Cases 572, the Supreme Court of Massachusetts held, that " an act of the legislature, which authorizes the construction of a rail- road between certain termini, without prescribing its pre- cise course and direction, does not prima facie confer power to lay out the road over and along an existing public highway ; but is competent for the legislature to grant such authority, either by express words or by neces- sary implication : and such implication may result either from the language of the act, or from its being shown by an application of the act to the subject matter, that the railroad cannot, by reasonable intcndment, be laid in any other line." I am unwilling to adopt this principle as broadly as it is laid down. I yield an assent to the reason- ing of the court, much more readily than to the conclu- sions deduced from it. The same court say, " Had it been intended that r.filroad companies, under a general grant, should have power to lay a railroad over a public highway longitudinally, which ordinarily is not necessary, wo think ' that would have been done in express terms, accompanied with full legislative provisions for maintaining such bar- VOL. n. 2 ii 362 CASES IN CHANCERY. Morris and Essex Railroad Co. v. City of Newark. riers and modes of separation as would tend to make the use of the same Toad, for both modes of travel, consistent with the safety of travellers on both. The absence of any such provision affords a strong inference that, under general terms, it was not intended that such a power should be given." In this charter, the legislature have expressly provided for the use of public highways, where the same are crossed by the railroad, and have protected the public in their ordinary use and enjoyment of the same. And yet it is contended, that from this same act, an im- plied power is derived to use the public highways in a manner which may be totally destructive of their ordi- nary public use. In other words, the legislature have been guilty of the absurdity of express legislation to pro- tect the public from a lesser evil, and while so doing have left room for the implication of a power to inflict the same evil, but in a greater magnitude. If nothing had been said in the act of incorporation as to crossing of public highways, that power would have been derived from implication, because it is impossible to construct a railroad from Morristown to Newark without such crossing. The same necessity for occupying public highways longitudinally does not exist, and must, from the nature of the case, have so appeared to the legislature. And yet they are not willing to leave the power of crossing public highways to mere implication. There was less necessity for legislative action with reference to crossing public highways ; and yet upon this they have legislated. It shows that the whole subject was in the mind of the legislature ; and for that reason, I think, we should not too readily draw any pov~er regarding it by mere implication. The legislature of the state has conferred upon certain corporate bodies the control and supervision of the public "highways. Those bodies are responsible for the proper maintenance and repair of these ways. They may be arraigned before the criminal tribunals of the land for a MAY TEKtt, 1855. 3G3 Morris and Essex Railroad Co. r. City of Newark. neglect of duty in the execution of the trust committed to them. These provisions are made for the benefit of the public, and for its protection. The public have rights in the public highways of the state, which can be impaired or interfered with by nothing short of authority conferred by the sovereign power of the state itself. That authority must be expressly given ; or if conferred by implication, it must be a necessary implication, such as will necessarily and naturally flow out of the law from whence it is de- rived, not a necessary implication to be whittled down into a reasonable intendment, and then to become a mere matter of expediency, and then to be resolved into a mere question of dollars and cents. The right is not given by this charter in express terms, and I do not think it can be implied from any of its pro- visions, which will authorize this company to appropriate for the purposes of their railroad more than one half mile of the principal public highways of Newark, without the consent of the appropriate public authorities of the city. I do not think that the company can occupy these streets without such consent, even upon the principle of con- struction as to legislative grants, as laid down by the court in the case of The Inhabitants of Springfield v. The Connecticut River Railroad Company. In that case, the court referred it to three commissioners to consider and report upon an examination and survey of the country between the termini of the road, whether it was, by fair and reasonable intendment, necessary to lay out and construct the road upon and along Front street, in the town of Springfield, or either of the public highways in Cabot ville, or not. The only object of such a reference is to give in- formation to the court. No inquiry need be instituted in this case to ascertain the fact, whether it was, by fair and reasonable intendment, necessary to occupy Broad and Center streets, in the city of Newark, in order to enable the complainants to intersect with their railroad the railroad of the New Jersey Railroad and Transportation Company at 364: CASES IN CHANCERY. Morris and Essex Railroad Co. v. City of Newark. .Newark, or at Elizabethtown, in the county of Essex, or between those places. Any one acquainted with the gene- ral face of the country knows that it is practicable to make such intersection without occupying longitudinally any of the public streets of Newark. Being of opinion that the complainants have no right, by law, to occupy Broad and Center streets for their road, it is unnecessary for me to consider another question, argued by counsel and made by the pleadings, whether the company did make and file the location of this part of their route in conformity to their charter, and the eifect upon their rights on account of a neglect to do so. The next important inquiry is, whether the defendants gave their consent for the use of these streets by the com- plainants, and as to the extent and effect of such consent, if given. In the statement of their case by their bill, the com- plainants do not allege that they ever asked the consent of the defendants for the use and occupation of their streets ; nor is it alleged or insisted that any such consent was proffered or given in express terms. It is admitted that no express consent was given. But the complainants allege and insist that such consent is to be implied from various facts and considerations, which are specifically set forth in the bill. We will examine them in the order in which they are stated. First, it is alleged that, at the time of determining upon, and locating the road, and of constructing the same in Broad and Center streets, no objection was made to the same on the part of the public authorities of the city of Newark ; and that having stood by and seen the complain- ants expend their money, and making no objection, the defendants are estopped from denying the complainants' right to the easement which they claim. In the case of Rerick v. Kern (14 Serg. (& R. 267, 262,) it was held, "that an executed license, the execution of which has involved the expenditure of money or labor, MAY TEEM, 1855. 365 Morris and Essex Railroad Co. v. City of Newark. is regarded, in equity, as an executed agreement for valu- able consideration, and as such will be enforced, even when merely verbal, and relating to the use or occupation of real estate." " So, if a party having a title to an estate should stand by, and allow an innocent purchaser to ex- pend money upon the estate, without giving him notice, he would not be permitted by a court of equity to assert that title against such purchaser, at least not without fully indemnifying him for all his expenditures." 1 Story's q. J.. 385. The complainants are not entitled to any protection in a court of equity by the application of these principles to their case. There was no license given, either by parol or in writing, nor can any fraud be inferred from the fact, that the defendants did not interfere, but stood by in silence while the complainants expended their money in the construction of their road upon the public highways. The same principal of law is applicable to the complain- ants, in their encroachment upon and use of the high- ways as to individuals. An individual erects a portico, or court yard fence, or awning posts, upon the street, or en- croaches upon it with his building. He cannot set up a legal right to continue them there permanently, on the plea that the public authorities did not interfere with their erection. He placed them there with full knowledge of his rights, subject to the paramount right of the public. To ascertain how far the complainants can set up the silence or acquiescence of the defendants as a construc- tive fraud, so as to entitle them to the principle, as stated by Mr. Justice Story, we must look at the circumstances which induced such silence and acquiescence. The de- fendants admit that they did not remonstrate, and give the reasons why they did not. The city of Newark had then a small population, in comparison with its present num- ber. The wants of the city for its public thoroughfares have since then greatly increased ; large expenditures have been required in paving and grading the streets to VOL. n. 2 n* 366 CASES IN CHANCERY. Morris and Essex Railroad Co. v. City of Newark. meet the growing necessities of tlie public ; sewers are demanded and other conveniences, to which streets in a city are properly and legally appropriated. The complain- ants occupied the streets subject to all these contingencies. When this road was originally constructed, it was of no serious detriment to the public. The fact, that the public authorities did not interfere while the inconvenience was tolerable, ought not to be construed into a fraud, on their part, to deprive them of their rights. The indulgence which they have shown the complainants ought not, by a court of equity, to be construed into a wrong. It is shown that the defendants have submitted to the inconveniences occasioned by the railroad, until the complainants have provided themselves with another intersection of the New Jersey railroad in the city of Newark, and are thus in the enjoyment of all the privileges the original charter was designed to confer. Without the road through the pub- lic streets of Newark, the complainants are in the enjoy- ment of a railroad from Morristown intersecting the road of the New Jersey Railroad and Transportation Company in the city of Newark. In addition to these considera- tions, the complainants themselves show that the road through these streets was not designed, and has never been used as the main line of their railroad, but only as a temporary track or spur, to their main road. They have never used it with locomotive power, nor have they ever asserted their right to do so ; and they admit it is not now used in any way for the conveyance or transportation of passengers. But the complainants set up other acts of the defend- ants as evidences of an acquiescence, on their part, to the : right now claimed. They say, in their bill, that they have .always conformed to the requirements of the common council of the city of Newark, or of their agents, in re- spect to the manner of keeping said track ; that they have been required from time to time, to pave between the .rails, .and for a space on each side outside of said rails ; OCTOBER TERM, 1855. 3G7 Morris and Essex Railroad Co. v. City of Newark. that when the streets through which said track runs were lately graded and paved, they were assessed large sums of money towards paving, and that such assessments and payments made by them amount to several thousand dol- lars. ]^ow certainly these facts, so far from showing an ac- quiescence on the part of the defendants in the legal right of the complainants, as now asserted, amount to an asser- tion, on the part of the defendants, of their continued control of the streets, and to an admission, by the com- plainants, that they occupied them as a matter of indul- gence, and subject to the control, will, and pleasure of the defendants. The defendants asserted their control over the streets, and the complainants submitted to their au- thority. It is true the complainants lost no legal rights by their submission to the city authorities, and it is equally true that they acquired none, either at law or in equity. The complainants further insist, in the maintenance of the legal right asserted by them, that they have legisla- tive sanction for the occupation of these streets. On the 2d day of March, 1836, the legislature, by a supplement to the original act of incorporation, enacted that the said company be and were thereby authorized and empowered to vary the line of their railroad, as at first surveyed, and recorded in the office of the secretary of state, at such places and points as, in the opinion of their engineer, might best promote the public conveni- ence and the interest of the stockholders. And after- wards, on the 22d day of February, 1838, the legislature passed a further supplement to their original act of incor- poration, and thereby enacted that the said company should have power to make such deviations from the line of their road as, from time to time, the directors thereof might deem expedient and proper. And after making provision for the payment of damages to land owners, the act further declares, that with that restriction and limitation, any deviations and changes theretofore made, 3GS CASES IN CHANCERY. Morris and Essex Railroad Co. v. City of Newark. and coining within the principle of the said act, should be deemed as valid as though the same had been laid down and marked in the original return and survey of said road. By a proviso in the last supplement, it is de- clared that no such deviation, or lateral road, as is autho- rized by that supplement, should be made in the city of Newark without the consent of the common council of the city. I can find no legislative sanction, in either of these acts, to the company's occupying any public highway, without first obtaining the consent of the proper legal authorities having the control of such highway. The act of 1836 was passed before the road was constructed. It authorizes the company to vary the line of their road, as first sur- veyed and recorded in the office of the secretary of state. It neither established the legality of the survey, nor did it authorize the company, in varying it, to take or use property which the original act of incorporation did not authorize them to take. The section of the act of 1838, referred to by the bill, and relied upon by counsel, merely authorizes the com- pany to deviate from the line of their survey, reserving the right to individuals to recover damages for all injuries sustained by such deviation. With the same restriction and limitation, it confirms any deviations theretofore made from the original line of survey and location. It ex- pressly prohibits any such deviation in the city of New- ark, without the consent of the common council of the city. The mere circumstance that the legislature recog- nised the fact, that the road had been located, and that that location had been filed in the office of the secretary <5f state, as the act of incorporation provides, did not legalize that location, or give the company any additional power or rights than were conferred by their original charter. This was not in contemplation at the time the several supplements were passed. The reason of the stat- ute was not because the company had taken or used pub- MAY TERM, 1855. 369 Morris and Essex Railroad Co. v. City of Newark. lie highways, or any other land, which they might not have taken under their original powers. " The reason of the statute; that is the motives wliich led to the making of it, the object in contemplation at the time the act was passed, is a criterion by which to ascertain the true mean- ing of the act. Attention should be paid to the circum- stances, whenever there is a question either of explaining an obscure, ambiguous, indeterminate passage in an act of the legislature, or of applying it to a particular case." /Smith's Com. 491, quoting Puffendorf, who says : " But that which helps us most in the discovery of the time meaning of the law, is the reason of it, or the cause which moved the legislature to enact it." The reason for the passage of the several acts referred to was not because the company had exceeded their power in the appropria- tion of public highways ; nor was it the object of the act, or the intent of the law makers, to sanction any such usurpation of power. The reason of the act and the in- tention of the.legislature are botli clear ; there is no doubt or obscurity as to the objects and purposes of its applica- tion. To construe these laws into a legislative sanction of the appropriation by the company of public highways, is a perversion in the application of the acts to purposes not intended. The assumption, that it was an object of these acts to sanction the construction of the road on the pub- lic streets of Newark, is an admission that the streets were illegally used by the company for that purpose, and is inconsistent witli the pretension, now assumed, of legal right and authority under their original act of incorpora- tion. The Morris and Essex Railroad Company have no right to occupy or use Broad and Center streets, in the city of Newark, in the manner the same are now appropriated by them, without the consent of " the mayor and common council of the city of Newark." The acts of the defend- ants, upon which the complainants rely as establishing such consent, arc not sufficient to draw from them any 370 CASES IN CHANCERY. Grandin v. Reading. such inference. The legislative enactment, upon which the complainants rely as establishing or confirming the right of the company to occupy the streets in* question, will not warrant such a construction. The defendants are therefore entitled to have the injunction dissolved with costs. The order will be made to that effect. CITED in Hinchman v. Pat. Horse R. R. Co., 2 C. E. 80; Atty. Gen. v. . Morris <& Essex R. R. Co., 4 C. E. Gr. 393; Greenwich v. Easton <& Am- boy R. R. 9 C. E. Gr. 224; State, Felix Pros. v. Atlantic City, 5 Vr. 105; State, Hoboken Land & Imp. Co. v. Hoboken, G Vr. 207; State, May. &. Aid. of J. C. Pros. v. Montclair R. R. Co., 6 Vr. 331; N. J. Southern R. R. Co. v. Long Branch Comrs. 10 Vr. 32. P. GRANDIN, executor of Mary McCullough, deceased, vs.. THE ADMINISTRATOR or JOSEPH READING, deceased. Where a person renders services to another, relying solely upon his generos- ity, and expecting to be compensated by a legacy, he cannot, when disap- pointed in such expectation, maintain an action at law for the value of his services. A court of equity will look at aD the circumstances of the case, and will judge from them as to the quo animo with which the services were ren- dered ; and although a reasonable expectation was entertained, which was disappointed, will only allow compensation if it is equitable that such al- lowance should be made. > n old lady, iipwards of eighty-five years of age, lived with her son. She placed money in his hands, from time to time, for investment ; he collected the interest, as it was due, and paid it over to her. This continued for eight years. An allowance for commissions for such services was refused. J. F. Randolph, for complainant. A. Wurts, for defendant. THE CHANCELLOR. After carefully examining all the facts and circumstances of this case, I have come to the conclusion that it is proper and just that an allowance should be made for the board and maintenance of Mary McCullough, during the period of her permanent resi- dence with Joseph Reading. It is true, where a person renders services to another relying solely upon his gene- rosity, and expecting to be compensated by a legacy, he cannot, when disappointed in his expectation, maintain MAY TERM, 1855. 371 Grandin v. Reading. an action at law for the value of those services. Mrs. McCullough, when she went to reside and make her home with Mr. Reading, was nearly eighty years of age. She had between fifteen hundred and two thousand dollars of her own, which Mr. Reading, at her particular request, re ceived into his hands for the purpose of investing for her benefit. In October, 1843, some three years after her resi- dence with Mr. Reading, she made her will, leaving the principal part of her property to her daughter, Mr. Read- ing's wife. In October, 1848, her son came from Ohio, and took his mother home with him. She was then eighty-five years of age. In less than two months she made her will, and in less than four months after died. By the last will, she gives Mrs. Reading a legacy of two hundred dollars, and to her son, the complainant, she gives nearly all the residue of her property. There is no dispute as to her competency to make a will. It is very certain that Mr. Reading expected his wife to be the prin- cipal beneficiary of the testatrix, and he had a right to expect it. The old lady had lived in his house for nearly eight years, and had been kindly and tenderly cared for. At the age of eighty-five, she is carried off to the state of Ohio, and before she had been under her son's roof two months, she makes a will in his favor, and forgets the obli- gatioas she was under to those who had watched over and protected her in her old age. Her age and situation, in relation to the complainant, account for this, without attributing to her the sin of ingratitude. These considera- tions can do Joseph Reading no good, in a legal point of view, but they are of a character to induce a court to look at the claim he sets up with a favorable eye. This old lady was maintained by him for eight years. The law im- plies a contract on her part to remunerate him. To de- prive him 'of the benefit of this implication, the court should be satisfied that lie looked alone to Mrs. McCul- lough's will for remuneration, and intended to rely upon her generosity solely. I am not satisfied from the evidence 372 CASES IN CHANCERY. Grandinu. Reading. that such was Joseph Heading's intention. Mrs. McCul- lough lived with him more than three years without making a will ; and after she did make it, there is evidence of but once when the subject was ever mentioned be- tween them. Mrs. Heading intended that he should be remunerated for the benefits conferred. He has a legal and equitable claim to such remuneration, and I do not consider that there is any evidence of a character to deprive him of his legal rights. But a further claim is set up by the defendants in behalf of their intestate, which is for compensation rendered by Joseph Reading, as the agent of Mrs. McCulloch, in taking care and charge of her business. I am disposed to allow to the defendants all I can in this case, but I do not think this claim can be supported. All the service proved to have been rendered was this. He received her money, and put it out at interest, and accounted to her for the interest .from time to time. It is not shown how this service was rendered. The character of the invest- ments is not shown. Indeed, from anything that appears to the contrary in the case, Mr. Reading used this money in his own business, without making any investment in the name of Mrs. McCullough. Under the circumstances this service was rendered, the law will not imply any ob- ligation on the part of Mrs. McCullough to remunerate Mr. Reading. These services were performed during a period of eight years. If Mr. Reading intended to charge commissions, he should have made the charges, and de- ducted them from time to time, as he accounted with his principal. In taking the account, a proper allowance will be made by the master for the maintenance of Mrs. McCullough during the period she resided with him after the 14th of February, 1840. CITED in Smith v. Smith's adms., 4 Dutch. 216. MAY TEEM, 1855. 373 Williamson v. Chamberlain. WILLIAM "WILLIAMSON and WIFE vs. JAMES P. CHAMBER- LAIN and others. CONSTRUCTION OF WILL. A testator made certain specific devises and bequests to several of his chil- dren. He then gave a life estate to his wife in his real and personal prop- erty not specifically disposed of. He then declared that his real and per- sonal estate, after the death of his wife, unless his wife choose to give up the estate before her decease, should be sold, and divided among certain of his children; and then declares, that if any of his children should die without lawful issue of the body begotten, then his, her, or their share, or legacy, should be equally divided among the survivors, share and share alike. Held, that he used the term survivors with reference to the period when the estate should be divided, after the happening of the event men- tioned in his will, to wit, the death of his wife. Mercer Beasley, for complainants. Alexander Wurts, for defendants. THE CHANCELLOR. Amos Hoagland died in 1807. By liis will, he disposed of his property as follows : " It is my will that my executors shall dispose of so much of my personal property, at public or private sale, as will enable them to discharge the aforesaid debts and funeral clia-rges, and likewise forty dollars, which I give to my beloved wife for her immediate use ; and the remainder of my personal property, if any there be, to remain on my farm. Item. It is my will that my wife Mary shall be entitled to all the rents, issues, and profits of my es- tate, both real and personal, for the bringing up, main- tenance, and education of my children during her natural life or widowhood. Item. I give unto my wife Mary one of the best feather beds, and furniture thereunto be- longing. I also give unto my said wife the largo blue cupboard, and all the linens it doth contain. Lastly. I give unto my said wife a certain negro girl, named Rose, now living with a certain James Lake, to be to her and VOL. ii. 2 i 374 CASES IN CHANCERY. Williamson v. Chamberlain. her heirs for ever. Item. I give unto mj son Jonathan the sum .of one thousand dollars, and to my younger son, Amos, the sum of three hundred dollars ; to my daughter Rebecca two hundred dollars, and to my daughter Mary two hundred dollars, to be to them and their heirs for ever, but not to be paid until my estate, both real and personal, be sold and divided. Item. It is my will that my daughter Hannah, the wife of William "Williamson, shall occupy and have during her natural life full posses- sion, and be entitled to all the rents, issues, and profits of a certain lot of land lying and being in the township of Bethlehem, county of Hunterdon, and state of New Jersey. And after the death of my daughter Hannah, wife oi William Williamson, it is my will that the lot be sold by my executors, and the money arising by the sale of the lot aforesaid to be divided among the children of mj daughter Hannah, the wife of William Williamson, sharo and share alike, as they shall attain to the age of twenty one years. Item. It is my will, and I do enjoin it upoi> my executors, that they take charge of the above said lot of land in Bethlehem ; that there be no abuse of said lot) or timber cut and destroyed for any use whatever, except for the necessary use of the said lot. Item. It is my will that after the death of my wife that all my estate, both real and personal, except my said wife chooses to give up the estate before her decease, be sold, and the money arising by the sales to be divided as follows amongst my several children, named Jonathan, Andrew, Rebecca, Amos, and Mary, to be divided among them and to their heirs for ever share and share alike. Item. It is my will that my daughter Sarah, wife of Jacob Williamson, shall have the use and benefit of one equal share with the rest of my children as long as she shall live, and after her decease the mother's share result to her lawful heirs of her body begotten, share and share alike, as they shall attain to 'the age of twenty-one years. Item. It is my will that if any of my children shall die without lawful HAY TEEM, 1855. 375 Williamson v. Chamberlain. issue of the body begotten, then his, her, or their share or legacy to be equally divided amongst the survivors, share and share alike. Item. It is my will, and I hereby order, that in case the nominal shares of my estate amount to a greater sum than the lot which my daughter Hannah, wife of William Williamson now lives in, then and in such case Hannah shall have a right to an equal share of the overplus more than the value of the lot." The bill alleges that the estate was finally settled many years ago, and was distributed among the several legatees, and that Jonathan Hoagland, who was one of the execu- tors, and also one of the legatees, received and retained, as his distributive share, the sum of $2000 ; that in the year 1851, Jonathan Hoagland died, leaving a consider- able estate, amounting to much more, after payment of . all claims against his estate, than the amout he received from his father's estate. At the time of his death, all his brothers and sisters were dead, except his sister Eebecca Vanfliet and the complainant, Hannah Chamberlain. The complainants claim, by their bill, that Jonathan Hoagland, having died without issue, the share which he received under his father's will must, according to the provisions of that will, be equally divided between the said sisters who survived him. The defendant, who is the executor of Jonathan Hoagland, has demurred to the bill. Upon these pleadings the question arises upon construc- tion of the will of Amos Hoagland. When the testator declared that if any of his children should die without lawful issue of the body begotten, then his, her, or their share, or legacy, should be equally divided among the survivors, share and share alike, he used the term "survivors" with reference to the period when the estate should be divided after the happening of the event mentioned in his will, to wit, the death of his wife. I think that this was manifestly the intention of the testator, looking at the whole will. He had made certain specific devises and bequests to several of his children. 376 CASES IN CHANCERY. \ Williamson, v. Chamberlain. He then gives a life estate to his wife in his real and per- sonal property not specifically disposed of. He then de- clares that his real and personal estate, after the death of his wife, unless his wife chooses to give up the estate be- fore her decease, shall be sold and divided among certain of his children ; and then follows the clause of the will which has given rise to the dispute. After the death of the widow, the estate was settled, and was disposed of according to the directions of the will, and Jonathan re- ceived his share. It was the intention of the testator that when Jonathan received his share, he should take it abso- lutely, and not in such a way as to create a limitation over after his death, in the event of his dying without issue. But whatever may be the constmction of this clause of the will, I do not think that the complainant, Hannah, was intended by the testator to be benefitted, in any event, by the property thereby disposed of. He had before made a devise to Hannah of all the rents and profits of certain real estate, directing the same to be sold at her death, by his executors, and the proceeds divided among the com- plainant's children. He then makes the bequest, which has given rise to this controversy, to his six children, Jonathan, Andrew, Rebecca, Amos, Mary, and Sarah. Then follows the clause, " If any of my children shall die," &c. The testator here referred to the six children just before named. The language is not applicable to the devise before made to the complainant, Hannah, " then his or her share or legacy to be equally divided." Han- nah had no share with her brothers and sisters in the es- tate to be divided after her mother's death. I cannot see, upon any construction of the will, that the complainants have any claim against the defendants. The demurrer is well taken, and the bill must be dismissed with costs. MAY TERM, 1855. 377 Scudder v. Stout. WILLIAM SCTTDDER and WIFE vs. JONATHAN O. STOTTT and others. Where the testator directs a sale of land to be made, and the proceed to be divided among his heirs at law, they may elect to take the lands, and a court of equity will secure to them the benefit of that election. Where all interested had entered into an agreement to divide the real estate itself into such proportions as they deemed just in reference to their re- spective interest in the proceeds, and it appeared that the parties had lived ten years under the agreement ; that the ownership of the property had become so changed that the agreement could not be disturbed without grossly violating the rights of some of the parties to it, and fraudulently depriving them of their property ; that the executors had acquiesced in it, and induced such a state of things as made it a fraud in them to disturb it, the court said, that the plea that such an agreement was illegal because one of the parties was a feme covert, came with an ill grace as a defence on the part of the executors, who had subsequently sold a portion of the property released under the agreement. A.t the time of the execution of the agreement, the husband of one of the parties had been absent six years and upwards. The report was that he was dead: it was so considered by the family. When the executors sold the property, he had been absent sixteen years, and the party was married again. At that time no court of law or equity would have disturbed the agreement on the ground alleged. But although the executors acted in bad faith, and in violation of the rights of those interested in the will of the testator, it does not follow, as a conse- quence of their fraud, that a sale made by them is void, they being author- ized by the will to sell the land, and their being no proof that the grantee* were cognizant of the agreement. Where the purchase money of such sale had been wrongfully paid over to one not entitled to it, the court held complainants entitled to an account, and ordered the money brought into court. M. Beasley, for complainants. TF. Hoisted, for defendants. THE CHANCELLOR. William Smith died in 1823, leaving considerable real and personal estate. The real estate consisted of what may be designated the homestead farm, of about ninety-six acres ; the Sherman farm, of sixty- seven acres ; the Bonham lot, of eight and a half acres ; 2 i* 378 CASES IN CHANCEKY. Scudder v. Stout. and the Waterhouse lot, of six acres. He left his wife sur- viving him, and three children ; a son, Asa, and two daughters, Amy, who was single, and Elizabeth, wife of Jonathan Sutton. He left a will, and by it, made the fol- lowing disposition of his real estate. He gives to his wife and to his son Asa the use of the homestead, until it should be sold by his executors. The Sherman farm and the Bonham farm he authorizes his executors to sell as soon after his decease as they might think proper, and, from the money thence arising, to discharge his debts and the legacies of his will, and whatever should remain over a thousand dollars, to divide equally between his wife and three children, except his daughter Elizabeth Sutton's share, which the executors were to retain until her marriage was dissolved. If she was living when that event happened, she was to receive her share. In case of her death, her husband surviving her, the executors were to pay it to her children. The testator then directs that as soon after the expiration of six years from the time of his decease as his executors should think proper, they should sell all the residue of his estate, consisting of his homestead farm with all such lots of land as might then belong to his estate, and the money thence arising to be divided into four shares, one for his wife, one for his son Asa, one for the use of his daughter Elizabeth, and one for his daughter Amy. The testator gave a legacy of two hundred dollars to his grandson, and appropriated the in- terest of one thousand dollars to be paid yearly to his wife, for her support. These legacies were charged on the Sherman and Bonham farms. Upon the death of his wife, the testator directed that all the property given to her, or for her use, including the thousand dollars, should be equally divided between his three children. In March, 1829, following the expiration of the period after which the executors were authorized to sell the homestead farm, the executors had not exercised the discretion given them by the will to sell any of the real OCTOBER TERM, 1855. 379 Scudder v. Stout. estate of the testator. It had not been necessary for them to do so. The personal estate had paid all the debts, and also the annuity to the widow, up to that time ; and there was left in the hands of the . executor, undisposed of, the sum of eight hundred and eight dollars and seventy cents. This being the situation of the estate, and no one be- ing interested in it but the three children and their mother, they considered that it was for their mutual advantage instead of having the real estate sold by the executors for the sole purpose of distributing among them the proceeds of such sale, to divide the real estate itself among them- selves, in such proportions as they deemed just in refer- ence to their respective interest in the proceeds, agree- ably to the provisions of the testator's will. They did ac- cordingly, on the llth of March, 1829, enter into an agreement, under their respective seals, by which, after reciting so much of the will of the testator as explained the object they had in view, they agreed to divide all the real estate as follows : The widow and two daughters were to release to Asa Smith all their right and title in the Shennan and Bonham farms, and Asa agreed to release to his mother and sisters all the residue of the real estate, subject to the payment of sixty dollars a year to the mother during her life, and at her death the same to be the property of the sisters free of all encumbrances. This agreement was fully carried out by all the parties to it. Shortly after it was entered into, Amy Smith married. She, with her husband, her mother, and sister, executed the necessary releases to Asa Smith, and Asa and his wife executed appropriate releases on their part. They entered into the possession of their respective portions according to the division, and after quietly enjoying such possession for a number of years, and while in possession, Elizabeth, Amy, and Asa Smith died, all of them, up to the time of their decease, satisfied with the family arrangement that had been made, and unmolested in their possession by any one claiming the right to interfere with it. Amy 380 CASES IN CHANCERY. Scudder v. Stout. Smith was married to Jonathan O. Stout, who is one of the defendants in this . suit. They had one child, Mary, who married William Scudder. They are the complain- ants in this suit. We come now to their cause of com- plaint. On the llth of April, 1840, the executors sold all that part of the real estate which, in the arrangement and di- vision, was set off and released by Asa Smith to his mother and sisters. The bill charges that the sale was made at the instigation of Jonathan O. Stout, for the pur- pose of getting that portion of the real estate which be- longed to his wife converted into personalty, and obtain- ing the money as her administrator. It charges that he frequently urged his wife, during her life, to sell her es- tate, which she always refused to do, and that, after her death, he induced the executors to make the sale under the authority of their testator's will. It charges that the executors frudulently connived with Stout to enable him to accomplish his purpose, and, also, that the purchasers who are defendants in the suit, were cognizant of the fraud, and purchased with full knowledge of all the facts. The bill prays that the sale may be declared void, and may be set aside, so far as respects the interest of Mary Scudder, and that she may be decreed entitled to one half of the said real estate sold by the executors, subject to her father's interest as tenant by the curtesy ; or, if more equitable, that she may be declared entitled to the pro- ceeds of the sale, as representing the land, subject to her father's right to the interest during his life, by reason of his marital rights. I have no hesitation in declaring that this sale was not made bonafide by the executors. The sale was a breach of trust, and grossly fraudulent in its consequences as to the rights and interest of Mary Scudder, who was then an infant under ten years of age. Look at the consequences of this sale upon the rights of the parties interested. The Sherman farm and Bonham MAY TEEM, 1855. 381 Scudder v. Stout. lot were charged by the testator with the thousand dollar fund, which was created by the testator for the purpose of securing the annuity to the widow. The executors were directed to sell them for that purpose. They were amply sufficient to secure the object for which the testator had designated them. These lands, in the family arrange- ment, were released to Asa Smith. The executors never disturbed him in his possession. They permitted him to enjoy the full advantage of the agreement. He became insolvent, and the lands were sold as his, by due course of law, for the benefit of his creditors. The executors then sold the lands, which Asa had released to his sisters, and paid over to his administrator one-third of the pro- ceeds of the sale. Thus Asa got not only the two tracts of land released to him, which was all he was entitled to, but one-third of the proceeds of the residue of the testa- tor's real estate. This was a fraud. It was produced by the conduct of the executors. Their proceeding cannot be justified upon any considerations which appear in the case as it is presented. The executors are not here to answer for themselves. Let us see what plea their representatives interpose to justify the course they pursued. They deny that the sale was made at the instigation of Stout, or upon any fraudulent combination with* Stout. This allegation of the bill is not sustained by proof, but the history of the case shows that there was ground for the charge. But the defendants, as the main ground to justify the executors, say, that the family agreement, and the releases to carry it into effect, were not valid in law, because, at the time of their execution, Elizabeth Sutton was a feme covert. It is not denied that if the parties were capable of contracting, the agreement was lawful and valid. When the testator directs a sale of land to be made, and the proceeds to be divided among his hiers at law, they may elect to take the lands, and a court of equity will secure to them the benefits of that election. Rinchart 382 CASES IN CHANCERY. Scudder v. Stout. and wife v. Harrison's Executors, 1 Bald. 179 ; Oest v. Flock et at., 1 Green's Ch. Rep. 115 ; Amler v. Amler, 3 Ves. 583. The plea, that the agreement was not legal because Elizabeth Sutton was a feme covert, comes with an ill grace as a defence on the part of the executors. One of the ex- ecutors drew up the agreement. It is produced, and proved to be in his handwriting. The parties lived ten years under this agreement. They died under it, undis- turbed by these executors. Third parties had, by due course of law, acquired rights under it. The ownership of the property had become so changed that the agree- ment could not be disturbed without grossly violating the rights of some of the parties to it, and fradulently de-- priving them of their property. The executors had ac- quiesced in the agreement, and by their conduct had in- duced such a state of things as made it a fraud in them to disturb it. Admit the agreement was not valid for the reason alleged. No party, who had a right so to do, had questioned it ; and these executors could not be made responsible to any one for any delinquency. It is pre- tended they were responsible to the widow for her annuity. But this is a mere pretence. As she was a party to the agreement, and by it had relinquished her claim upon the executors, under no circumstances could she make them responsible. AVas the agreement invalid ? At the time of its execu- tion, Mrs. Sutton's husband had been absent six years and upwards. The report was that he was dead. It was BO considered by the family. When the executors sold, Mrs. Sutton had been married a second time. Sutton had then been absent sixteen years. At that time no court of law or equity would have disturbed the agreement on the ground alleged. The executors were not justified in selling the property on this ground ; and such an excuse, under the circumstances of this case, can be considered only as a mere pretence. I am bound to say, from the facts be- fore me, that the executors acted fraudulently in selling MAY TEEM, 1855. 383 Scudder v. Stout. the property, for no good reason is given, nor do I see that any ca* be suggested, for their making the sale. But although the executors acted in bad faith, and in violation of the rights of those interested in the will ot the testator, it does not follow, as a consequence of their fraud, that the sale made by them is void. The executors were authorized by the will to sell the land. Their grantees were not bound to know of the agreement made by those who were interested in the lauds to be sold, or to make inquiry for any other disposition of the land than such as the executors, by the will, were authorized to make. The record was not notice to them of the agree- ment. The bill charges that they were cognizant of all the facts. This is not proved. It is true the defendants have not put in any answer denying the charge. It does not follow that because they have not answered, a decree pro confesso must necessarily be taken against them. The court may direct, when the defendants have not answered, a decree pro confesso, or order the complainants to make proof of their case. Other defendants, against whom charges were made which, if true, involved such know- ledge on the part of the grantees, have denied such charges. The complainants have attempted to make the proof, and have failed, These grantees stand before the court as innocent parties, and they are in a position not necessarily involving them in the consequences of a fraud committed by others. I do not think the case is such as will warrant an interference with the title of the grantees of the executors. It remains to determine whether the complainant is entitled to any relief ; and if so, what that relief is. The mother of the complainant, Mary Scudder, was entitled, under the will of her father, to one-third of all the pro- ceeds of his real estate, subject to certain encumbrances imposed by the testator. She made an election, in a mari- ner which by law she had a right to do, by which she be- came entitled, with her sister, to one moiety of the home- 384 CASES IN CHANCEEY. Scudder v. Stout. stead farm. She, her sister, and her brother, were seized in fee of this land as the heirs at law of their father, and their brother released to them, thus making the two ten- ants in common. While thus seized, Amy Smith married the complainant, Stout, who, with her, and in her right, entered into possession of the land. Stout and his wifo were in possession under the family arrangement and agreement. While thus seized, his wife died, leaving the complainant, Mary Scudder, then an infant of tender years, her heir at law. Stout thus became tenant by the ourtesy. The executors then sold the land. Stout took out letters of administration upon his wife's estate, and, as administrator, claims one-third of the proceeds of the sale. On behalf of the complainants, it is insisted that one half of the land sold by the executors belonged to Mary Scud der, as the heir of her mother, and that the executors should be declared trustees holding the proceeds for her b3nefit, subject to remuneration to her father out of the same for interest in the lands, as tenant l>y the curtesy. It appears to me that the rights of the parties turn upon the proper answer to the single question, was Amy Stout, when she died, legally entitled to one half of the home- stead farm under the agreement she had entered into with her brother and sister, or was she entitted in no other right than under the will of her father, and only to one- third of the proceeds after the sale of it by the executors ? I have already expressed the opinion that the agreement was a valid and a legal agreement. If so, one half of the- farm was hers. When she died it descended to her daugh- ter, as her heir at law. If the executors have sold it wrong- fully, and this court cannot redress the injured party by restoring the land, it is equitable that the proceeds of that sale should be secured to her. This court will restore her to her rights, as far as it is able. She was entitled to one half of the land, subject to the right by the curtesy of her father, and the same interest should be secured to her in the proceeds. The defendants say, that one-third of these 385 MAY TEEM 1855. Executors of Shreve v. Shreve. proceeds have been paid over to the personal representa- tive of Asa Smith. If so, such payment was wrongfully made. The executors knew that Asa Smith had received from his sisters all his interest in the real estate of his father, and that, by his deed, he had conveyed to his sisters all his interest in the homestead farm. He was not entitled to any of the proceeds. He had a perfect right to convey his interest to his sisters. The executors, with a knowledge of the fact that he had done so, had no more right to pay any of the proceeds to his personal representative than they had to make such payment to a perfect siranger. It was a .fraud for them to do so. The complainants are entitled to an account for one half of the proceeds of the homestead farm, deducting the one- sixth of the one thousand dollars paid to the representatives of Asa Smith, deceased, and to have the money brought into court, to abide its further directions as to the disposi- tion of the fund. THE EXECUTORS OF JAMBS SHKEVE, deceased, et al. vs. JAMES SHKEVE et al. A residuary disposition will carry all the contingent or reversionary interest which a specific devise shall leave undisposed of. Generally speaking, where a specific devise fails on account of its being void ab initio the prop- erty so devised will go to the heir at law. But if the specific devise dis- pose only of a partial or contingent interest in the lands, leaving an ulterior or alternate interest undisposed of, that would, in the absence of disposi- tion, descend to the heir. Such undisposed of interest will jwss by a gen- eral residuary clause. Every residuary devise of real estate, however general the terms of it, is in its nature specific. As this principle follows from the fact, that the devisor can only devise the lands to which he is actually entitled at the time of making his will, a question might arise, how far, in New Jersey, it should be considered applicable to after nri|uiivd lands, since, by the statute of 1851, the distinction between real and personal estate in this jMirticular u abolished. VOL. u. 2 K 386 CASES IN CHANCERY. Executors of Shreve v. Shreve. Where no directions are given by the testator for the payment of his debts, specific legacies must be appropriated before real estate devised ; but where the testator makes his debts a charge upon his real as well as personal estate, or upon his estate generally, the devisees and legatees must bear their respective share of the burthen pro rata ; and this is the case where the testator commences his will with a general direction that his debts shall be paid. The testator left four daughters, two grandsons, children of a deceased son, his deceased son's widow, and his own wife, the devisees of all his property. He first directs his executors to pay off and discharge all his debts. He gives to his wife, during her natural life, the sole and exclusive use of all his plate, books, &c. To his daughter in law, he devises the sole and ex- clusive use and occupancy and all the rents and profits of the Biddle farm, to be held and enjoyed by her from the time of his decease until the 25th day of March immediately preceding the time when his grandson should arrive at the age of twenty-one years, with the proviso, and upon the con- dition, that his said daughter in law should, within three months after his decease, execute and deliver to his executors a full and absolute release and discharge of all claims and demands she might have against his estate. To bis two grandsons, from the said 25th day of March, he gives the Biddle farm, as joint tenants, with remainder to their issue in fee, and in default of issue to the right heirs of the testator. He also gives to his grandson one third part of his pine lands and cedar swamp. To his four daughters, the testator gives his homestead farm and two-thirds of his pine lands and cedar swamps, with an estate of the same character as that devised to his grandsons. He then devises and bequeaths to his four daughters, to their heirs and assigns for ever, all the rest, residue, and remainder of his estate, to be equally divided among them share and share alike, subject only to the payment of all just claims against him on note, or book of account, funeral charges, testamentary and incidental expenses, and commissions. The testator left one specialty debt, which was a bond debt, the principal of which was $6000, and which was due to his daiighter in law. She re- fused to comply with the proviso under which the devise was made to her, under the will, of the Biddle farm. All the personal estate which passed under the residuary clause had been appropriated to pay the simple con- tract debts, and there was a deficiency. There was no other personal estate, except the specific legacies to the widow. As to the simple con- tract debts, it was admitted that the specific devises must contribute pro rata. Held, that as to the simple contract debts, the interest of the residuary de- visees in the Biddle farm must contribute pro rata with the other specific devises to pay the simple contract debts, but as to the specialty debt, it is not liable to contribution. Decreed that the residuary personal estate be first appropriated to pay the simple contract debts of the testator and ex- pense of settling the estate ; that the specific legacies and devisees contribute pro rata to make up any deficiency ; and as to the specialty debts, the specific devises, except that of the Biddle farm, which fell into the residue, first contribute pro rata to pay the specialty debts, the residuary devise of the Biddle farm being liable only in the event of a deficiency of all other property to pay the specialty debts. OCTOBER TEEM, 1855. 387 Executors of Shreve v, Shreve. J. C. Ten Eyck and W. L. Dayton, for complainants. J. R. Slack and A. Browning, for defendants. THE CHANCELLOR. The decision of the questions sub- mitted in this cause involves the construction of the will of James Shreve, deceased. The whole case turns upon the intention of the testator as to what funds should pay his debts, and in what order they should be appropriated for that purpose. The testator left four daughters, two grandsons, children of a deceased son, his deceased son's widow, and his own wife, the devisees of all his property. He first directs his executors to pay off and discharge all his debts. He gives to his wife, during her natural life, the sole and exclusive use of all his plate, books, house- hold goods, and furniture ; and he gives to her absolutely all his groceries, meat and provision in his house at the time of his death. To his daughter in law, he devises the sole and exclusive use and occupancy, and all the rents and profits of the Biddle farm, to be held and enjoyed by her from the time of his decease until the twenty-fifth day of March immediately preceding the time when his grand- son, James Shreve, should arrive at the age of twenty-one years, with the proviso and upon the condition that his said daughter in law should, within three months after his decease, execute and deliver to his executors a full and absolute release and discharge of all claims and de- mands she might have against his estate. To his two grandsons, from the said twenty-fifth day of March imme- diately preceding his grandson's (James) arriving to the age of twenty-one, he gives the Biddle farm, as joint ten- ants, with remainder to their issue in fee, and in default of issue, to the right heirs of the testator. He also gives to his grandsons one third part of his pine lands and cedar swamp. To his four daughters, the testator gives his homestead farm and two-thirds of his pine lands and cedar swamps, with an estate of the same character as 388 CASES IN CHANCEKY. Executors of Shreve v. Shreve. that devised to his grandsons. He then devises and be- queaths to his four daughters, to their heirs and assigns for eve.r, all the rest, residue, and remainder of his estate, wheresover the same may be found, to be equally divided among them share and share alike, subject only to the payment of all just claims against him on note, or book of account, funeral charges, testamentary and incidental expenses, and commissions. The testator appointed two of his daughters and liis son in law to execute his will. They, together with the other daughters of the testator, have filed this bill against the two grandsons, who are in- fants, and who appear and defend by their guardian. The guardian answered the bill, and the cause conies up on final hearing upon the pleadings and proofs taken. The testator left one specialty debt, which was a bond debt, the principal of which was $6000, and which was due to his daughter in law. She refused to comply with the proviso upon which the devise was made to her, under the will, of the Biddle farm. The devise to her, there- fore, does not take effect, and this debt, which she refused to release, must be paid out of the estate. The other debts were considerable. All the personal estate w r hich % passed under the residuary clause of the will has been appropriated to pay the simple contract debts, and there is a deficiency of about nineteen hundred dollars. There is no other personal estate of the testator, except the spe- cific legacies which he bequeathed to his widow, appraised and valued at eight hundred and seventy-seven dollars. Out of what funds are the remaining simple contract debts to be paid, and the specialty debt before referred to? It is important, in the first place, to ascertain the char- acter of the estate of the testator still unappropriated. We have the specific legacies to the testator's wife, the specific devises to his daughters, the specific devises to his grandsons, and the estate in the Biddle farm up to the twenty-fifth day of March immediately preceding the MAY TEEM, 1855. 389 Executors of Shi-eve r. Shreve. time when the testator's grandson, James Shreve, shall arrive at the age of twenty-one years. "Who is entitled to this estate in the Biddle farm until the period when the gransons take it ? It was devised, by the testator, to his daughter in law, upon the express condition that she would execute and deliver to his executors a full and ab- solute release and discharge of all claims and demands she might have against his estate. She has refused to do this. The estate passed by the residuary clause of the will, by which the testator gave to his four daughters, and to their heirs and assigns for ever, all the rest, residue, and remainder of his estate, wheresoever the same may be found. A residuary disposition will carry all the con- tingent or reversionary interest which a specific devise shall leave undisposed of. Generally speaking, where a specific devise fails on account of its being void ab initio, the property so devised will go to the heir at law. But if the specific devise dispose only of a partial or contingent interest in the lands, leaving an ulterior or alternate in- terest undisposed of, that would, in the absence of dispo- sition, descend to the heir. Such undisposed of interest will pass by a general residuary clause. Poicell on Devises 105-6. In Doe, on the demise of Wells and otJiers, against Scott and another (3 Maule & Sel. Rep. 300) the testator devised all his lands at II. to J. M., his heir at law, his heirs and as- signs for ever, provided that he or his heirs did, within six months after his decease, assure to R. M. and his chil- dren certain copyhold premises ; and in default of such assurance, the testator gave the premises to II. M. for life, and from and after his decease to his children living at the time of his decease, their heirs and assigns for ever, as tenants in common : J. M. and R. M. died unmarried in the testator's lifetime. It was held that this was not a lapsed devise of the whole interest, so as to belong to the heir at law of the devisor, but by reason of the contin- gent interest which remained undisposed of, if J. M. 2K* 390 CASES IN CHANCERY. Executors of Shreve v. Shreve. should not assure, and R. M. should die without children, the residuary devisees to whom was devised all the rest of the devisor's lands, wheresoever situate, were entitled. The undisposed of interest, then, in the Biddle farm passed under the residuary clause to the testator's daughters. It is a specific devise to them, as much so as is the devise of the homestead farm. Every residuary de- vise of real estate, however general the terms of it, is in its nature specific. Powell on Devises 103 ; Howe v. Earl of Dartmoutli, 7 Ves. 147 ; Broome v. Mon~k, 10 Ves. 605 ; Hill v. Cook, 1 Ves. & Beam. 175. As this principle, as the authorities state, follows from the fact that the devisor can only devise the land to which he is actually entitled, at the time of making his will, a question might arise, how far, in New Jersey, it should be considered applicable to after acquired lands ; since, by the statute of 1851, the dis- tinction between real and personal estate in this particu- lar is abolished. No such question, however, is involved in this case. The testator was seized and possessed of all the lands disposed of by him at the time his will was ex- ecuted. The estate then in the Biddle -farm, which passed under the residuary clause, is a specific devise, and must stand on the same footing as the other devises (all being specific) as to payment of debts, unless the testator has de- clared his intention otherwise. Has he done so ? As to the simple contract debts, it is admitted that the specific devises must contribute pro rata ; but as to the special debt, the complainants insist that the testator has exempted the residuary estate, and that the interest in the Biddle farm, which passed with the residue, is not liable to contribution for the payment of this debt. In the first place, the testator charges his whole estate, both real and personal, with the payment of his debts. By the first item of his will, he directs his executors to pay off and discharge all his debts. Having made his debts a burthen upon all his estate, he devises and bequeaths the residue of his estate to his daughters, MAT TEEM, 1855. 391 Executors of Shrere v. Shreve. subject only to the payment of his simple contract debts. The greatest part of this property was subject to the payment of all the simple contract debts, as the primary fund for that object, and the rest of it, upon general principles of law, was subject to contribution with the other specific devises. When, therefore, the testator declared that the residuary estate should be subject only to the payment of simple contract debts, he meant to exonerate it from the burthen, which otherwise it must have borne as a common fund, of other debts. If it is not exonerated from the payment of the speci- alty debt, this intention of the testator will be defeated. I am of opinion, therefore, that as to the simple con- tract debts, the interest of the residuary devisees in the Biddle farm must contribute pro rata with the other spe- cific devises to pay the simple contract debts ; but as to the specialty debt, it is not liable to contribution. The only remaining question is, when and how the specific legacies must be appropriated ? The general rule is, where no directions are given by the testator for the payment of his debts, specific legacies must be appropriated before real estate devised ; but where the testator makes his debts a charge upon his real as well as his personal estate, or upon his estate generally, the devisees and legatees must bear their respective share of the burthen pro rata / and this is the ease where the testator commences his will, with a general direction that his debts shall be paid. 2 Jarmati on Wills 540 ; Irvin v. Ironmonger, 2 Russel & M. 591. As has been already ob- served, the testator in this case charges his whole estate with the payment of his debts. lie commences his will with a general direction to his executors to pay off and discharge all his debts, as soon as can -conveniently be done after his decease. The specific devises and legacies must, therefore, contribute pro rata to pay the simple con- tract debts. Let a decree be made, with directions that the residuary 392 CASES IN CHANCERY. Holcombe v. Coryell. personal estate be first appropriated to pay the simple con- tract debts of the testator, and the expenses of settling the estate ; that the specific legacies and devises contribute pro rata to make up any deficiency required to pay these debts and expenses ; and that as to specialty debts, the specific devises, excepting that of the Biddle farm, which fell into the residue, first contribute pro rata to pay the specialty debts, the residuary devise of the Biddle farm being liable only in the event of a deficiency of all other property to pay the specialty debts. REVERSED. Shreve v. Shreve, 2 C. E. Gr. 487. CAUOLIXE HOLCOMBE, by her Guardian, vs. JOHN CORYELL, and others, executors, &c. On a bill filed on behalf of an infant complainant to compel executors and trustees under a will to account for the estate of the testator which has come to their hands, and for the execution of their trust, complainants are entitled to an account as a matter of course. The testator directs that all the residue of his personal estate, after payment of debts and legacies, shall be invested in productive real estate. This does not authorize the executors to purchase vacant lots, and erect buildings upon them. Such property cannot be considered productive real estate. The testator authorizes his executors to make suitable and convenient im- provements and necessary repairs on the real estate in their possession. This, in connection with the language used as to the purchase of productive real estate, is inconsistent with the idea that the testator meant his execu- tors to purchase vacant lots, and erect buildings upon them. The testator directs the disposition of a surplus, which he contemplates will remain after the improvements made : this hardly comports with the idea that they should use the funds in their hands indiscriminately in the erec- tion of buildings. The testator creates 'two funds with his property. The real estate left by him at his death, with such real estate as the executors are authorized to purchase with his personal property, constitute one fund. The residue of the proceeds of all his real estate, after paying for improvements and re- pairs, is to be kept annually at interest, and this constitutes another fund. MAY TEEM, 1855. 393 JHolcombe v. Coryell. The bill was filed, on behalf of an infant complainant, to compel the defendants, as executors of the will of John Holcombe, deceased, and as trustees under that will, to account for the estate of the testator that had come to their hands, and for the execution of their trust. Randolph and Peter I. Clark, for complainants. W. Hoisted^ for defendants. THE CHANCELLOR. Let a reference be made to James Wilson, esq., one of the masters of this court, to take an account, as follows : first. Of all the personal property of the testator at the time of his death, and charging the executors with the same, as respectively received by them. Second. Of all the personal property which has come to the hands of the executors, respectively, or which, by due diligence, they might have received. Third. Of the rents and issues of the real estate, which have come to the hands of the executors, respectively, or which by due diligence they might have received. Fourth. Of all the real estate of the testator of which he died seized, and stating the annual value of the different parcels thereof, as near as can be ascertained. Fifth. Of all the debts, legacies, and expenses paid by the executors, respectively, in the due administration of the estate, and showing the residue of the personal estate in the hands of the executors, and of which of them, after such discharge. Sixth. Of the investments made by the executors in pro- ductive real estate, if any, witli the residue of the personal estate, as ascertained as aforesaid. Seventh. Of the moneys expended by the said executors, as trustees under the will, in improvements and repairs of the real estate, and the character of such improvements. Eighth. Of the investments, if any, of the rents and profits of the real estate. 89 CASES IX CHAXCEET. Holcombe o. Coryell. Ninth. Of the amount due the estate of the testator, at the time of his death, by John Coryell, after allowing him all just set-off, stating the accounts between the parties. Tenth. Of the amount due the estate of the testator, at the time of his death, by Alexander Coryell, after allowing him all just set-offs, stating the accounts between the parties. Eleventh. To examine and report whether it is for tho interest of the cestui que trust that the conveyance made by Alexander Coryell, dated September 24th, 1853, to the executors and trustees should stand ; and also, whether it is for their interest that the conveyances made by John Coryell to the executors and trustees of the mill property and of the brick houses in Lambertville should stand. These accounts should have been taken on the coming in of the answer. The complainant was entitled to an account, as a matter of course. I do not deem it proper to decide this case finally until such accounts are taken. If these de- fendants, or any of them, have violated their trust, and the court is called upon to remove them for such misconduct, it is important and requisite to have an accurate statement of the accounts, in order that the court may protect, by its decree, the right of the parties interested. There was some argument upon the construction of the will, and it is proper that I should not pass it over without some intimation of my views in reference to it. The testa- tor directs that all the residue of his personal estate, after payments of debts and legacies, shall be invested in pro- ductive real estate. This does not authorize the executors to purchase vacant lots, and erect buildings upon them. Such property cannot be considered as productive real estate. It is unproductive property, made productive after purchase, which cannot be said to be properly within the intention of the testator. By the fourth clause of the third codicil, the testator authorizes his executors to make suitable and convenient improvements and necessary repairs on the real estate in MAY TERM, 1855. 395 Holcombe r. Coryell. their possession. I think this, in connection with the lan- guage used as to the purchase of productive real estate, is inconsistent with the idea that the testator meant his executors to purchase vacant lots, and erect buildings upon them. Tne fifth clause of the third codicil shows that the testator contemplated that, after the improvements made, there would remain a surplus in the executors' hands, and he directs its disposition. This hardly com- ports with the idea that he intended they should use the funds in their hands indiscriminately in the erection of buildings. The payment annually to the complainant is to be made out of the real estate ; and I think it was clearly the in- tention of the testator that the improvements and repairs upon the real estate are to be made out of the rents and profits of the real estate, and not out of the personal estate which he left at his decease ; for he directs specific- ally what payments shall be made out of the personal, and that the residue shall be invested in real estate, and then disposes of it as a separate fund. The testator creates two funds with his property. The real estate left by him at his death, with such real estate as the executors are authorized to purchase with his per- sonal property, constitute one fund. The residue of the proceeds of all his real estate, after paying for improve- ments and repairs, is to be kept annually at interest, and this constitutes another fund. I have ordered an inquiry by the master respecting the properties conveyed by the Coryells to the estate. What course the court may deem proper to take in reference to them, will depend in a measure upon the result of the investigation of the mas- ter. The court may find it necessary to let these convey- ances stand as a security to the estate. SAME CASK. 3 Stock. 2S2, 470, 549; Affirmed 1 Beaa. 289; S. C., 2 Becu. 4KJ.415, 417. CASES ADJUDGED IN THE COURT OF CHANCERY OF THE STATE OF NEW JERSEY, OCTOBER TERM, 1855. DOUGHTY and WILSON vs. JULIUS KING and others. J. K., of the firm of McM., R. & Co., when the firm was in failing circum- stances, conveyed his real estate to F. D. , in trust for his wife. The deed was set aside in favor of the complainants, who were judgment and execu- tion creditors of the firm, on the ground, that from the answer of the de- fendants, and the proofs in the case, it appeared that no consideration was paid, and that it was executed for the purpose of protecting the property from the creditors of the firm. Thomas / Dudley and A. Browning, for complainants. G. S. Cannon and James Wilson, for defendants. THE CHANCELLOR. This bill is filed by the complainants, as judgment creditors of McMnrtrie, King & Co., for the benefit of themselves and other creditors who shall come in and contribute to the expenses of the suit. The ob- ject of the bill is to set aside a conveyance of real pro- perty, which was made by Julius King to Francis Durmot, in trust for King's wife. The complainants have taken out execution, and levied upon this property. It is shown OCTOBER TEEM, 1855. 397 Doughty v. King. that the judgment debtors are insolvent, and have no property out of which the judgment can be satisfied. The bill alleges that the conveyance is fraudulent, and was made to defeat and defraud creditors ; that while it pur- ports to be for the consideration of one thousand dollars, paid by the grantee, no money was in fact paid, and that the deed was executed to McDurmot, and placed upon record without his knowledge or consent, and that when the deed was executed King was insolvent. McDurmot has answered the bill. He admits that the deed was made to him, and put upon record without any consultation with him and without his knowledge, and that he paid no consideration himself, and has no knowl- edge of any consideration having been paid by any one. He says he has a mortgage on the same premises, which was executed to him by King and his wife, in 1852, to se- cure a debt of four hundred dollars. King and wife also answered the bill. They deny that at the time the trust deed was executed, the firm of McMurtrie, King & Co. was insolvent. They admit that McDurmot did not know of the conveyance at the time it was executed, and deny that it was made to defeat the complainants or any other creditor of the firm. They state that the reason McDurmot was not consulted was because he resided at Hoboken, a distance from them, but that they knew him to be their friend, and that they were informed they might use any one's name as trustee. They, f urther say, that at the time of the execution of the deed^, the sum of five hundred dollars, in specie, was then paid by Susan Schultz, the sister of Julia R. King, to the said Julius King, and that, on the twentieth day of September following, the balance of the consideration money was paid, in specie or bills, to the said Julius King by the said Susan Schultz ; that the money so paid was loaned by the said Susan to the said Julia, to be by her lent to her hus- band, on condition that the said Julius King would con- vey the property in question in trust for the benefit of his VOL H. 2 L 398 CASES IN CHANCEKY. Doughty v. King. wife ; that the deed was accordingly executed on the twenty-third of August, and recorded on the twenty- seventh day of August, 1853. The defendants make out a very unsatisfactory case by their answer. In August, the firm of McMurtrie, King & Co. are extensively engaged in business, and although the answer alleges that they were not then insolvent, we find them in one little month failing for a large amount, and not pretending that such failure was occasioned by any unexpected or disastrous loss in their business. In less than two months prioi to the failure, King conveys away all his real estate in trust to his wife, and under very sus- picious circumstances. He selects a trustee, living at some distance from him, without consultation with him, and puts the deed upon record without the consent of the trustee. There is an inconsistency, too, about the consid- eration of the conveyance difficult of explanation. The de- fendants say that the money was loaned to the wife by her sister, on condition that King would make the trust deed. If this is true, who is to repay the sister for the money loaned ? The wife does not owe the debt, for she could not contract it. It is not pretended that the trust property is security for the debt, or was intended to be so by the parties. Julius King, then, is the debtor, and Susan Schultz his creditor. This circuitous way of doing busi- ness is not explained. The account given by the answer of the whole transaction is a very unsatisfactory one, and presents a case of great suspicion. With this unfavorable impression of the case, made by the defendant's own statement, we approach the evidence, and it appears to me to be of such a character as to show the deed fraudu- lent without a doubt. And first, as to the insolvency of the firm of McMurtrie, King & Co. at the time of the execution of the deed. In referring to the fact of the denial of insolvency by the answer, I ought to have mentioned the reckless manner in which the denial is made.- It was a fact about which OCTOBER TERM, 1855. 399 Dotkghty v. King. Mrs. King could certainly know nothing, and as to which no answer was expected from her. And yet Mrs. King denies the insolvency with as much particularity and cer- tainty as if she was perfectly familiar with all the partner- ship business and the pecuniary liabilities of the firm. But I think the insolvency of King and of the firm is satisfactorily proved. Cn the 8th of October, 1853, they made an assignment. Their debts amounted to upwards of $23000, and their assets will not pay fifty cents on the dollar. On the 23d of August previous, the deed was made. They were driven to make the assignment from losses which they had sustained prior to the date of the deed. There can be no doubt of the insolvency of King and of the firm on the 23d of August. It is proved that the firm actually suspended payment in September, and that, in August, King held a conversation with one of the clerks in the store, as to the best mode of the partners se- curing their individual property from the creditors of the firm. To prove the ~bonajuLes of the deed, the defendants offer Sarah Schultz as a witness. As to her evidence, I would remark, in the first place, if it is true, the answer of King and wife is not only evasive but untrue. The answer says, that the one thousand dollars was lent by this witness to her sister, Mrs. King, on condition that King would con- vey the property in trust for his wife. The witness, by her evidence, does not pretend there was any such condition. She says her sister, Mrs. King informed her that her hus- band was about selling the property, and applied for mo- ney to enable her to buy it, and that she advanced tho money as a consideration, for which King and his wife transferred by writing, all Mrs. King's interest in her grandfather's estate, with the understanding that if that interest exceeded a thousand dollars, the witness was to make it up, and if it amounted to less, then Mrs. King was to make the amount good. If this story is true, why did the answer conceal it, and why did it not 400 CASES IN CHANCEKY. Doughty v. King. state the fact of the agreement, which the witness alleges was executed to her by King and his wife ? But the cross-examination of the witness shows that this story cannot be relied upon. It appears, from her statement, that Mrs. King is one of seven children entitled to the property of her grandfather ; that the estate is unset- tled in consequence of the death of the executors, and that no interest has been received from it for the last twenty-two or twenty-three years. The witness says she does not know the amount of her grandfather's estate, be- cause she was never so particular as to enquire ; that when she was a child, she heard her mother say there was in money several hundred dollars. It is evident, from the witness' statement, that this estate, as a security for the thousand dollars, is a mere shadow. There are many circumstances, to which I think it un- necessary to refer, going to show that this deed was fraudu- lently made. As to Julius King's intention and object in making the conveyance, we have the testimony of Theo- dore McMurtrie, a clerk in his store. He says, " Mr. King asked me how a man having property could best secure it from being taken from him for debt. I answered, by mak- ing over his property to his wife, or that I believed that was the way. He asked me if that was really the case. I told him that to the best of my belief it was. He then exclaimed," " slapped his knee /with his hand, and, laugh- ing, went out of the room." I am satisfied from the evidence, that this deed should not be permitted to stand as against creditors. CASES ADJUDGED IN THE COURT OF ERRORS AND APPEALS O F T HE ON APPEAL FROM THE COURT OF CHANCERY, AT NOVEMBER TERM, 1855. Between ABEL YOUNG, appellant, and JOHN RODMAN PAUL, respondent. The complainant applied to the defendant to purchase his farm. After some negotiation, it was agreed between them, that if the complainant would purchase the Butz farm, the defendant would exchange his farm for the Bute farm and a thousand dollars. At the request of complainant, de- fendant went to consult his wife and family ; and on returning, said they would all assent to the arrangement. Complainant then purchased the Butz farm ; and being obliged to leave, authorized his brother, as agent for him, to enter into a written agreement with defendant for the exchange of farms. The agreement was executed, by which it was agreed that com- plainant should convey, free and clear of all encumbrances, the Bute farm to the defendant, and that, on the same day, defendant should convey hia farm to complainant; and complainant agreed to pay the difference of one thousand dollars; the wife expressed herself satisfied with the agree- ment. At the time appointed, complainant tendered his deed, signed by himself and wife, with full covenants, and the defendant tendered a deed not signed by his wifa Held, that as the refusal of the wife to unite with her husband in the con- veyance was owing entirely to the contrivance and fraud of the defendant, who in this way was endeavoring to deprive the complainant of the benefit of a specific performance of the contract, that the court should order the 2L* 402 COUET OF EREOES AND APPEALS. Young v. Paul. agreement performed, and the conveyances to be so made between the parties that the complainant may hold 4n the land which he conveys aii indemnity against any future claim to be set up by defendant's wife. It was objected that the wife was not a party to the bill, and that no decree could be made against her to execute the deed, as she was not a party. But the Chancellor said no decree could be made against her, if she were a party. If she had actually signed the agreement with her husband, it would have been void as to her. A feme covert cannot make any contract, except as to her separate estate. Had the wife been made a defendant, a demurrer, as to her, would have been sustained. It was further said, that the deed tendered was a substantial compliance with the agreement, because it contained a covenant to indemnify the complainant; but it was held that no court would say that a mere personal covenant was sufficient indemnity. A want of mutuality in the contract was urged as an objection against the decree, that the agent who signed for the complainant was not legally authorized; but it is no legal unyielding obstacle to the court's making a decree, that the contract is signed only by one of the parties. It was argued that the decree would in effect force the wife into executing the deed, which should be her free and voluntary act. The Chancellor said, " Upon a careful examination of all the authorities, if the alternative were presented to me of making a decree for specific performance by pro- curing the wife to join in the deed, or to dismiss the bill, I should accept the latter." The power of the court to direct indemnity in such a case cannot be de- nied; it is the proper and natural mode of administering equity between the parties. Cases where the wife's refusal to join was bona fide, and not the result of the husband's interference, or cases where an action for damages would give adequate redress, are not within the ruling of this case, by RYEKSON, J. The controlling equity of the case is, that upon the faith of his agreement with Young, complainant was drawn into the purchase of the Butz farm, and was thus placed in a position from which he could not extricate him- self. He bought the farm not for himself, but for Mr. Young. POTTS, J. The bill alleges that Abel Young, the defendant, is the owner of a farm, supposed to contain one hundred and Beven acres, situated in the township of Oxford, in the county of "Warren, in the state of New Jersey ; that on or about the 14th of December, 1854, the complainant applied to him to purchase his fann ; and that, after some negotia- tion, it was agreed between them, that if the complainant would purchase of J. Elias Butz his farm, of about the same number of acres, the defendant would exchange his farm NOVBEMER TERM, 1855. 40C Young v. Paul. for the Butz farm and a thousand dollars difference ; that at the request of the 1 complainant, the defendant went to consult his wife and family, and, on returniug, said they would all assent to the arrangement ; that the complain- ant then went and purchased the Butz farm ; and being obliged to leave immediately for his home in Philadel- phia, he authorized his brother, as agent for him, to enter into a written agreement with the defendant for the ex- change of farms ; that his brother, as his agent, and the said defendant on the same day, executed an agreement in writing, by which it was agreed, that on the first day of April, the said complainant should convey, free and clear of all encumbrance, the Butz farm to the defendant, and that on the same day the said defendant should con- vey to the complainant the said farm then owned and occupied by the said defendant ; and further, that the said difference in exchange should be $1000, which the said complainant agreed to pay to the defendant. The bill alleges that the wife of the defendant expressed herself satisfied with the agreement ; that on the first of April, the complainant was ready on his part to fulfil the agree- ment, and tendered to the defendant a deed for the Butz farm, signed by himself and wife with full covenants ; and that, on the same day, the defendant tendered to the complainant a deed for his farm, but that the deed was not signed by the wife ; that the defendant pretended his wife could not execute the deed ; that the complainant then offered to take the deed without the wife's joining in the conveyance, provided the defendant would indem- nify him on the Butz farm against any claim of dower which the wife of the defendant might be entitled to hereafter, or by giving hirn other satisfactory security. The bill prays that the said defendant may be decreed specifically to perform the said agreement by a proper conveyance with his wife, or that he be decreed to make compensation for the value of the wife's encumbrance, to be deducted from the purchase money ; or, if more agree- 404 COURT OF ERRORS AND APPEALS. Young v. Paul able to equity, that the covenants of the defendant for encumbrances be declared a lien on the Butz farm, as an indemnity against any right or claim of dower which may hereafter be made by the defendant's wife. The defendant answered the bill, and depositions were taken by both parties. The defence set up will appear fully by the opinion of the Chancellor. The cause was argued in the Court of Chancery, by P. Kennedy and W. L. Da/yton^ for the complainant, and J. H. Norton and James S. Nemus for defendant. At the term of February, 1855, a decree was made in favor of the complainant. From this decree an appeal was taken. The Chancellor furnished the court with the following opinion, as containing the reasons for his de cree : THE CHANCELLOR. There are several grounds upon which the defendant resists a decree for specific performance. I shall notice them in the order in which they were pre- sented on the argument. 1. It is objected that the wife is not a party to the bill, and that no decree can be made against her to execute the deed, as she is not a party to the suit. No decree could be made against her if she were a party. If she had actually signed the agreement with her husband, it would have been absolutely void as to her, and no suit at law or equity could be maintained against her upon such an agreement. A feme covert cannot make any contract, either with or without the consent of her husband, ex- cept as to her separate estate, in respect either to real or personal property. Our late statutes respecting the rights of married women do not affect this principle of the com- mon law. Had she been made a defendant, a demurrer as to her would have been sustained. Worden et al v. NOVEMBER TERM, 1855. 405 Young v. PauL Morris and Wife (2 Q. C. R. 66) ; 2 Kent 141 ; 12 Mad. Ch. 261 ;6 Wend. 13 ; 2 Jac. & Walk. 412. The necessary and proper parties are therefore before the court. 2. That the defendant, on the day specified in the agreement, was ready to perform it, and tendered to the complainant a deed for his farm, which the complainant refused to accept. The defendant was bound to give to the complainant a deed for the farm, free and clear of all encumbrance. The complainant was entitled to a deed executed by the defendant and his wife. A deed executed by the defendant alone was not a compliance with the agreement. The complainant was not bound to take such a deed. This was the deed which was tendered to him. But it was argued that the defendant run no risk by taking such a deed ; that this being a mere exchange of properties, a court of equity would not, under the circum- stances, ever have permitted the wife to claim her dower in both properties. But why not ? The court could not, upon any principle of equity, prevent her taking her dower in the land conveyed by her husband to the com- plainant. It is that very right which she is now main- taining, and which it is contended this court has no right to impair by a decree against her in this case. Suppose she claimed her dower, too, in the land conveyed by this complainant to her husband. That would be a question between her and the heirs at law of her husband, in which this complainant could have no possible interest ; and it is difficult to conceive how any legal or equitable resist- ance could be made to such a claim by reason of anything connected with this transaction. It was further said, that the deed was a substantial compliance with the agree- ment, because it contained a covenant to indemnify the complainant against any future claim the wife might make ; and it is shown that the defendant is a man of pro- perty, and his personal covenant a sufficient indemnity. This is no answer to the objection to such a deed. The complainant offers to take a sufficient indemnity, but no 406 COURT OF ERRORS AND APPEALS. Young v. Paul. court would say that the mere personal covenant was sufficient indemnity against such an encumbrance. 3. A want of mutuality in the contract, is urged as an objection against a decree. It is said, the agent who signed the contract for the complainant was not legally authorized, and so the defendant only was bound by it ; and as the defendant could not, for that reason, compel a specific performance by the complainant, the parties were not mutually bound, and that in such a case a court of equity will not decree a specific performance. There is some conflict of authority upon this point. It was con- sidered by the court in the case of Lanning v. Cole (3 G. C. J?. 229), and some of the authorities are there referred to by the Chancellor. It is evident his leaning was against the objection. He did not decide the point, however, as the case turned upon the other considerations. Most of the authorities on the point are referred to and reviewed by the master of the rolls in Morris v. Mitchell, (2 Jac. & 'Walk. 425). The opinion of the master of the rolls in that case is unsatisfactory. It is not referred to by Chancellor Kent in Benedict v. Lynch (1 J. C. R. 373), although much later than any of the authorities referred to by him. The contract is undoubtedly binding on the defendant at law ; and if the court refuses to compel a specific performance, it is simply on the ground that the want of mutuality renders it more equitable that the party should be left to his legal remedy. It is no legal unyielding obstacle to the court's making a decree, that the contract is signed only by one of the parties. In that sound legal discretion, by which a court of equity exercises this branch of its jurisdiction, it fre- quently does refuse to decree a specific performance of a contract which is not mutually binding on both parties ; not, however, because it is a settled principle that the court will not enforce such a contract, but because that want of mutuality often constitutes an equitable ground for such refusal, as if the party not signing the agrre- NOVEMBER TERM, 1855. 407 Young v. Paul. ment, and therefore not legally bound, takes advantage of his position, and delays its fulfilment till it is ascer- tained whether the bargain is advantageous to him. Now, though the performance of the contract, if he had been bound, could not have been resisted by reason of the delay, yet the court will now consider it good ground enough by reason of the want of mutuality in the contract. But even admitting that, as a general rule, the objection is a good one, there are circumstances in this case which would make it inequitable and oppressive on the com- plainant for the court to enforce it. It is proved, and in- deed admitted by the answer, that the complainant pur- chased the Sutz farm for the sole purpose of carrying out this contract, and that he was encouraged and urged by the defendant to make the purchase. He has made a large expendiiure there, relying upon the good faith of the defendant. To turn him over to the law under these circumstances would not only give him an inadequate remedy, but be permitting the defendant to practice a fraud upon him. The naked question is not therefore presented in this case, whether a want of mutuality is a valid objection against the court's decreeing a specific performance. The conduct of the defendant has been such as to deprive him of the benefit of the principle, if, as a general one, it is recognized in equity. The com- plainant brings himself within the language of Lord Redesdale, in Lawrenson v. Butler (1 Schoalc-s & Lefroy 19), a case always cited to sustain the objection under con- sideration. The complainant, on the faith of this agree- ment, has put himself in a situation from which he could not extricate himself. That circumstance is sufficient to induce a court of equity to give relief. 4. The principal ground upon which a decree is resisted is, that when the agreement was entered into, the defend- ant supposed that his wife would execute the deed ; but since she has resisted all Ins reasonable persuasions, and (by her refusal) it is rendered impossible for him to per- 408 COURT OF EERORS AND APPEALS. Young v. PauL form his contract, the court ought not, under such circum- stances, to make a decree against him to do that which is out of his power to do. In examining the evidence of the case, it is impossible to resist the conclusion, that the defendant has acted in bad faith in this transaction,, and that the unwillingness and refusal of the wife to execute the deed is more in compliance with the wishes of her husband than her own disposition and unrestrained judgment. There is enough evidence to show that the complainant was unwilling to enter into the contract until the wife of the defendant was first consulted, and gave her assent; and that, not- withstanding the denial in the answer, she did assent to the contract. She gave her reasons why she considered the bargain an advantageous one to herself and husband. It is proved that the defendant declared his determination to back out, as he expressed it. His position is not one to ask any favor of the court, or to give him the benefit of a doubtful principle to which fair and upright dealing might justly lay a claim. But the fact is, the wife now refuses to execute the deed ; and it is necessary to its validity that she should sign it, and acknowledge, before the proper officer, that she signed, sealed, and delivered it as her voluntary act and deed freely, without any fear, threats, or compulsion of her husband. If the court decrees a specific perform- ance according to the terms of the contract, the husband must procure his wife to sign the deed in some way, per fas aut nefas, or else take the consequences of disobedi- ence to the order of the court. This then is, in effect, a decree by which the wife is forced into executing a deed. "When she is brought before the proper officer, he certifies to her acknowledgment of its being her free and voluntary ach, when it is notorious that it is the decree of this court, held up to her in terrorem, which must be either obeyed by her husband through her submission, or he be sub- jected to punishment for disobedience. Such a decree is NOVEMBER TERM, 1855. 409 Young v. Paul. against the policy of the law protecting the rights of a wife in the lands of her husband. It is plain to be seen that this mode of alienation might be adopted by an im- provident and oppressive man to strip a prudent wife of all the reliance for her future support. Her refusal to sign a deed would be easily overcome by her husband en- tering into a contract that she shall join him in a convey- ance ; and then a decree of this court is looked to as the instrument of her oppression. She may have firmness enough to resist his unreasonable demand and entreaties, but yield to the persuasion of a decree of this court, which threatens her continued refusal with the incarcera- tion of her husband. Upon an examination of the au- thorities, it will be found that the doctrine is not ag firmly established as a cursory view of them might lead us to suppose. Judge Story (Story's Eq. 732) pointedly and emphati- cally condemns the doctrine, that a court of equity will decree the specific performance of an agreement, by which the husband covenants that his wife shall execute a con- veyance to bar her of her estate, when performance is resisted on the ground of the wife's refusal to join in the deed. The authorities are referred to ; but the author does not give his opinion whether they are such as should lead to the conclusion that the doctrine should be considered as settled by authority either way. The case of Hatt v. Hardy (3 P. Wms. 185-6) was a bill for the specific performance of an award, by which the plaintiff was to pay 10 to the defendant on such a day; and 30 at another day ; and that thereupon the defend- ant should procure his wife to join with him in conveying the premises to the plaintiff and his heirs. The answer did not set up the refusal of the wife. The master of the rolls says, " there have been a hundred precedents, where, if the husband for a valuable consideration covenants that the wife shall join with him in a fine, the court has decreed the husband to do it, for that he has undertaken it, and must VOL. ii. 2 M 410 COUET OF ERRORS AND APPEALS. Young v. Paul. lie by it, if be does not perform it." And yet the note to this very remark of the master of the rolls (note 12, page 188,) leaves it quite uncertain as to the extent to which these hundred precedents carried the doctrine ; " because in all these cases it is to be presumed that the husband, where he covenants that his wife shall levy a fine, has first gained her consent for that purpose. So said by the mas- ter of the rolls in the case of Winter v. Devereux, Trinity, 1723 ; and that the interest in such covenants has been taken to be an inheritance descending to the heir of the covenantee. JSut, after all, if it can be made appear to have been impossible for the husband to procure the concur- rence of his wife (as suppose there are differences between them), surely the court would not decree an impossibility, especially w r here the husband offers to return all the money, with interest and costs, and to answer all the damages." (Note B, referred to). But here is the very point we want precedent for the court's making a decree for the de- fendant to do an impossibility to control the will of his wife and compel her voluntarily to execute a deed ; for the deed is worthless, except done of her free will. There is no difficulty where the defendant does not set up the refu- sal of his wife as a defence. But where the refusal is set up as a defence, and it appears by the evidence that such refusal is the reason why the defendant does not perform his covenant, for this court to make a decree which com- pels the wife to execute a deed, and then to accept it as a free will offering, is carrying the jurisdiction of the court very far. The case of Barry v. Wade (Rep. Temp. Finch 180) I have not seen ; but the book is admitted not to be very reliable authority. In Barrington v. Stone (2 Eq. Abridg. 17, pi. 8,) the decree was, that the husband should pro- cure his wife to join with him in a fine to the plaintiff, ac- cording to his covenant. The answer set up that the wife did not seal the deed, but not her refusal to join with her husband in a fine. NOVEMBER TERM, 1855. 411 Young v. Paul. In Otread v. Round (4 Yin. Ab. 202, pi. 4,) Lord Cowper refused to decree a specific performance of such a cove- nant, the husband offering to refund the purchase money with costs. The case, as cited in Yiner, is as follows : " Husband and wife did, upon a valuable consideration, by lease and release, convey the wife's land in fee, and covenanted that the wife should levy a fine of the same to the use of the purchaser. The wife refused to levy a fine. The plaintiff brought his bill to have his title per- fected by a specific performance of the covenant, and a precedent was cited where a specific performance had been decreed in the like case ; but the Chancellor would not decree a specific performance in this case, because upon such decree the husband could not compel his wife to levy a fine ; and if she would not comply, imprison- ment would fall upon the husband for contempt, which was the ill consequence of the decree in the said cited case." In Emery v. Ware (8 Yes. 505), Lord Eldon refuses his assent to the doctrine carried to the extent of the court's making the decree in the face of the refusal of the wife ; and in Martin v. MitcheU (%Jac. cfe Walk. 418), Sir Thomas Plumer, master of the rolls, decides these points : that a husband and wife, having a joint power of appointment by deed over the wife's estate, agree in writing to sell it, a decree for specific performance cannot be compelled against them ; and under a contract by husband and wife for sale of the wife's estate, the court will not decree him to procure her to join. He remarks, " the point, that the (.ourt should compel the husband to coerce the wife to join with him in the conveyance, was abandoned. The counsel did not urge that that is the law now, and that the husband was to go to prison, if she refuses to concur." Upon a careful examination of all the authorities, if the alternative were presented to me of making a decree for specific performance by procuring the wife to join in the deed, or to dismiss this bill, I should accept the latter. 412 COUKT OF ERROES AND APPEALS. \ Young v. Paul. I am, however, relieved in this case from denying the complainant relief on account of any such embarrassment. The complainant offers by his bill, in case of the refusal of the defendant's wife to join in the deed, to take indem- nity. The power of the court to direct indemnity is denied. The case eminently calls for its exercise, and I do not think it can be denied upon authority or principle. In the case of Milligan v. Cooke (16 Yes. 1), for the plaintiff it was stated, that he desired not a reduction of the purchase money, but an indemnity against the risk, which must not be a personal indemnity, but upon real estate, or by part of the purchase money to be kept in court, the defendant taking the dividends. Lord Eldon said the purchaser was entitled to that ; that the proper compensation was indemnity, by which the loss, if it should happen, would be made good, and if it did not happen, there was no occasion for compensation. A refer- ence was made to a master to settle such security by way of indemnity, as, under all the circumstances of the title, it should appear just and reasonable that the defendant should execute. Upon an intimation of the Lord Chan- cellor, the case was reargued, and the decree was affirmed. I cannot find that, by any subsequent case, the propriety of this decision of Lord Eldon has been questioned. In Balamanno v. Luinley (1 V. & B. 224), Lord Eldon confined the order to compensation, and is reported to have said he did not apprehend the court could compel the purchaser to take an indemnity, or the vendor to give it. He certainly did not mean to question the correctness of the principle upon which he had made the decree in J^fiUigan v. Cooke. The manner in which both those cases are referred to, in a note to Patton v. Brebner and anot/ier, (1 Bligh 67) shows that they were not considered in con flict, or that the latter overruled the former; but that, while it is a general rule that courts of equity will not compel a vender to give an indemnity, there is no inflexi- ble rule or principle to prevent the court's doing it when NOYEMBEK TERM, 1855. 413 Young v. Paul. a proper case presents itself. If there is anything in the reasoning, that a court of equity cannot, upon principle, decree an indemnity because the parties have not con- tracted for it, it would equally apply against the jurisdic- tion of the court to award compensation for any deficiency in the title, quantity, quality, description, or other matters touching the estate. In Graham v. Oliver (3 Bea/o. 124), Lord Langdale says: " There is, however, a very great difficulty in all these cases, and I scarcely know how it can be overcome ; though a partial performance only, it has been somewhat incorrectly called a specific perform- ance. The sentiments of Lord Redesdale on this point, as expressed by him in two cases before him, are strongly impressed on my mind. The court has thought it right, in many cases, to get over these difficulties for the pur- pose of compelling parties to perform the agreements into which they have entered ; and it is right they should be compelled to do so, where it can be done without any great preponderance of inconvenience." In the case before the court, if it is beyond the reach of its jurisdiction to decree indemnity, then it has not the power to do what is manifestly equitable and just between the parties to this contract, and the complainant must submit to a fraud without any adequate means of redress. Indemnity can be ordered in this case, not only " without any great preponderance of inconvenience," but without any inconvenience at all. As the case is presented, it is, the very remedy which suggests itself as the proper and 1 natural mode of administering equity between the parties, and is free from every objection as to hardship or incon- venience. The defendant need not be called upon to give collateral indemnity, but it may be obtained in settling the mutual conveyances to be made between the parties. By the terms of the agreement, the complainant is to convey to the defendant the Butz farm, and pay him one thousand dollars, as the consideration for the premises which the defendant has agreed to convey to the com- 2u* 414 COUET OF EEEOES AND APPEALS. V . Young v. PauL plainant. The wife of the defendant refuses to unite with her husband in the conveyance ; and this refusal is owing entirely to the contrivance and fraud of the defendant, who, in this way, is endeavoring to deprive the complain- ant of the benefit of a specific performance of the con- tract. The court should order this agreement performed, and the conveyances to be so made between the parties that the complainant may hold in the land which he con- veys an indemnity against any future claim to be set up by the defendant's wife. I shall decree a specific performance and a reference to a master, with directions to settle the conveyances ; and if the wife of the defendant refuses to join her husband in a deed, then to direct the conveyances in such a manner as will afford the complainant a complete indemnity in the premises. The appeal was argued by Bradley and Nemus, for appellant. Browning and Dayton, for respondent. The following opinions were now delivered. POTTS, J. I am of opinion that the decree of the Chan- cellor, in this case, should be affirmed. It does substantial justice between the parties, and this is the great end of equity. I see nothing in the evidence to impugn the fairness of the contract. Mr. Young had all the time for .considera- tion that he required. He acted voluntarily. He was well acquainted with the subject matter in respect to which he was dealing ; he knew the value of his own farm, and of the one he agreed to take in exchange for it. The one thousand dollars difference was the sum proposed by him- self. There is no doubt his wife assented to the sale in the first instance. It was not until some time afterwards that COURT OF ERRORS AJSD APPEALS. 415 Young v. Paul. slie changed her mind, and determined not to execute the deed ; whether this was of her own volition, or brought about by the influence of her husband, makes no difference. The decree in no way impairs or affects her rights. The controlling equity of the appellee's case is, that upon the faith of his agreement with Young, he was drawn into the purchase of the Butz farm, and was thus placed in a position from which he could not extricate himself. He bought that farm, not for himself he did not want it -but for Mr. Young. That was distinctly understood beforehand by Mr. Young. The appellee has that farm upon his hands, and a court of law cannot relieve him from it. The decree made by the Chancellor meets and satisfies the equity of the case. It directs performance only so far as the appellant is able to perform a conveyance of the Young farm free of the encumbrance of the wife's dower, if she chooses voluntarily to join her husband in the con- veyance ; subject to the encumbrance, if she declines to do so ; and in the last alternative directs indemnity to be made by Young out of the one thousand dollars and the Butz farm. The objection taken is to the indemnity. Batten, in his recent treatise on the law of specific per- formance, 67 Law Lib. 171, says, " the court will not com- pel a purchaser to take an indemnity, nor a vendor to give it ; and he cites, as his authority, the cases of Balamanno v. Lumley, Aylett v. Ashton, and Patten v. Brabner. Balamanno v. Lumley, 1 Ves. & Beam. 224, is the lead- ing case. It was a bill, by the vendee, for specific perform- ance of a contract for the purchase of an estate. The title was alleged to be defective, and the purchaser moved for a reference to look into the title, and, if found defective, to settle the proper compensation or indemnity, his counsel suggesting that, as to part of the estate, indemnity might be more convenient than compensation. The vendor's counsel objected to indemnity, which, he said, might 416 COURT OF ERROES AND APPEALS. Young v. Paul. prove inconvenient to families ; and Lord Eldon said " lie did not apprehend the court would compel t/te purchaser to take an indemnity, or the vendee to give it" and according- ly confined the order to compensation. This is the whole case. Aylett v. Ashton, 1 Mylne <& Craig 105, was a bill for the specific performance of a contract for a lease. The con- tract was entered into by the wife alone, and in respect to her separate property. It turned out that, as to part of the premises, she had no title. The bill was against her and her husband. The court held that there was no jurisdiction to make a decree against the wife, her trustees not being parties,nor against the husband,he not having signed the con- tract ; and the master of the rolls merely added, at the close of his opinion, that " parties may, no doubt, contract for a covenant of indemnity ; but if they do not, the court cannot compel a party to execute a conveyance and to give an indemnity, "referring, as authority, to Balamanno v. iMmley and Patten v. Brebner, in which last case, reported in 1 JBligh 66, Lord Eldon merely refers to the rule, as stated in the former case. On the other hand, in the case of Milligan v. Cooke, 16 Vesey 1, Lord Eldon, after two arguments and upon full consideration, held that that was a case for compensation, and that the proper compensation was indemnity ; for by this, he said, the loss, if it happened, would be made good, and if it did not happen, there was no occasion for com- pensation. It was a bill for specific performance brought by the purchaser of a leasehold estate. The defect con- sisted in the representation by the particular of a church lease for twenty-one years, with covenants for renewals to sixty-three years, the lease being actually for lives, and the covenants limited and contingent. The consequent uncer- tainty whether any loss would occur, was the controlling reason, why indemnity was decreed instead of compensation. This reason exists in the case before us, and is, in my judg- ment, a solid one. NOVEMBEE TEEM, 1855. 417 Young i?. Paul Compensation settled by the Court of Chancery, or damages assessed at law, might do great injustice, if the wife should not survive her husband, to the vendor, if she should survive him very many years, to the vendee, while indemnity would do certain justice. As to its being an in- convenience to Mr. Young, it will always be in the power of the wife to remove the inconvenience by perfecting the title. It is said, if Young refuses to comply with the direc- tions of the decree of the Chancellor, and is committed for contempt, that will operate to compel the wife to join in executing the deed ; and that this is against principle. But there would be no more compulsion in this than there woull be in a decree that a husband should pay a sum of money, or be in contempt for not doing so, where the wife might relieve him by raising and paying the money out of her separate estate. If Young puts himself in con- tempt at all, it will be not because his wife refuses to exe- cute the deed, but because he refuses to convey and to give indemnity. EYERSON, J. I concur in affirming the decree of the Chancellor, being satisfied that the contract was entered into with fairness and good faith on the part of the com- plainant, after full advisement and deliberation on the part of the defendant, having first consulted his wife, and obtained her full approval and consent, and that her sub- sequent refusal to join in the conveyance resulted from his interference. On the faith of this contract, the complainant purchased the Butz farm and he cannot obtain adequate relief at law in action for damages which would leave him with that farm upon his hands, a farm that he did not want, and purchased only to fulfil his contract. Justice can be done in no other way than by the Chan- cellor's decree, and it will work no wrong to the defend- ant ; his wife having once changed her mind to aid him 418 COURT OF ERRORS AND A PPEALS. Young o. Paul. in the determination of backing out, which he so em* phatically expressed, will probably as readily change back to her first opinion, when he finds it to be to his interest to do so, and join with him in the conveyance ; if she de- clines to do this, her husband will be subjected to no other hardship than what he has brought upon himself by his own misconduct, and which he should bear, rather than deny adequate relief to the complainant. The objection of want of mutuality has no application to this case, and I am well satisfied that in a proper case, such as this eminently is, the Court of Chancery has power to decree indemnity, and ought to do it, rather than allow the defendant to practise what would be a fraud upon the complainant ; while the rights of married women should be protected to their full extent, a husband ought not to be allowed to avail himself of such a plea in a case like this. Not intending to write a formal opinion, it is neverthe- less proper to express concisely my reasons for affirming the decree, lest this case might be made a precedent for cases differently situated, cases where the wife's refusal to join in the conveyance was lona fide, and not the result of the husband's interference, or cases where an action for damages would give adequate redress. ELMEB, J., concurred in the above opinion. Decision affirmed by the following vote : For affirmance Judges COKNELISON, HAINES, OGDEST, RYEKSON, ELMER, HUYLEB, POTTS, YEEDENBUEGH. For reversal CHIEF JUSTICE, JUDGES ARBOWSMTTH, Ris- LEY, VaLENTINE, WlLLS. CITED in Hopper v. Hopper, 1 C. E. Gr. 149 ; Hawralty v. Warren, ? 0. E. Gr. 128 ; Pinner v. Sharp, 8 C, E. Gr. 282 ; Reilly v. Smith, 10 C. E. Gr. 159 ; Lounsbery v. Locander, 10 G. . Gr. 557 ; Peeler v. Levy, 1 (7. E. Gr. 335. NOVEMBER TERM, 1855. Holmes v. Stout. JOSEPH HOLMES and others, appellants, and BENJAMIN STOUT and JOHN WILLIAMS, respondents. To destroy the title acquired by prior registry, it is necessary that the party should have notice of a prior subsisting outstanding title. It is not enough that he has notice that a prior deed has been executed, if the notice con- veys, also, the information that the title is not in existence. The ground upon which the title acquired by a prior registry of a deed is lost, in case of notice to the second grantee of the existence of the prior conveyance, is that it is a fraud in the second grantee to take a deed, knowing or having reason to suspect the existence of the prior title. Unless the information given concerning the existence of the previous con- veyance was of such a character as to taint his conduct with fraud, as against those claiming under the prior title, the .notice cannot affect the validity of his title. Possession is sometimes notice of claim of title sufficient to put a purchaser on inquiry; but it must be an actual possession manifested by notorious acts of ownership, such as would naturally be observed by, and known to the public. Cutting wood occasionally, under circumstances which might be regarded as so many trespasses quite as probably as acts of ownership, is not evidence of such possession. The grantee of a bona fide purchaser without notice is not to be charged with the encumbrance or fraud, although directly known to him before he acquired his title ; otherwise the loss must be visited upon the bona fide purchaser, as he would thereby be obliged to keep the property or to sell it at such a price as would enable his purchaser to discharge the encum- brance or purge the fraud. The case sufficiently appears from the opinions de- livered. The cause was argued in the Court of Chancery, by Peter Vredenburgh and J. F. Randolph, of counsel with complainants, and Daniel B. Ttyall and Garret D. Wall of counsel with defendants. HAINES, C. At the term of January, in the year eighteen hundred and forty-five, a decree was made dismissing the- com- plainants' bill with costs. From this decree an appeal was taken. The Chancellor furnished the court with the following opinion, as containing the reasons for his decree. 420 COURT OF EEEOES AND APPEALS. Holmes v. Stout. HAENES, C. On the twenty-third of August, eighteen hundred and seventeen, Andrew Bell conveyed to John Holmes, jun., a tract of land, of sixty-four acres and four hundredths, in the county of Monmouth, for one hundred and nineteen dollars, and took his note for the money. On the tenth of December, eighteen hundred and seven- teen, John Holmes, jun., conveyed to John Holmes, sen., twenty-two acres, parcel of the lot of sixty-four acres and four hundredths, for fifty dollars. On the twenty-seventh day of August, eighteen hun- dred and twenty-seven, John Holmes, jun., represented to Mr. Bell that he had lost his deed, and that it had not been recorded, and urged him to make out a new deed for the sixty-four acres and four hundredths of an acre lot to his brother-in-law, Eichard Lane. Mr. Bell at that time declined making a new deed ; but on the next day, Holmes, jun., and Lane called upon him, and urged him till he was induced to execute to Lane a new deed for the premises, dated the twenty-eighth of August, eighteen hundred and twenty-seven ; and Lane then paid Mr. Bell sixty dollars on Holmes' note. Part of the money due on the note still remains unpaid. The deed was recorded on the seventeenth of September, eighteen hundred and twenty-seven. In eighteen hundred and thirty, Lane died intestate, and his administrators, by virtue of an order of the Or- phans Court, sold and conveyed the whole premises to Stout and Williams, the defendants, by deed dated the seventh of November, eighteen hundred and thirty-two, and recorded on the twenty-fourth day of November, eighteen hundred and thirty-two. The deed from John Holmes, jun., to John Holmes, sen., was not recorded until after the execution of the administrators' deed to Stout and Williams. The complainants, claiming under John Holmes, jun., now file their bill, and seek a perpetual injunction, to quiet their title, and to set aside so much of the deed from Bell NOVEMBER TERM, 1855. 421 Holmes v. Stout. to Lane as covers the twenty-two acres before conveyed to John Holmes, sen. From the testimony in the case, Lane appears to have been a purchaser for a valuable consideration, and as his deed was duly recorded before the deed from John Holmes, jun., to John Holmes, Sen., his claim to the premises is to be preferred, unless it can be shown that he purchased mala fide, or with notice of the deed to John Holmes, sen. Act of 1th June, 1799, 8, P.at. 399. It is not enough to show that he had notice of the deed from Mr. Bell to John Holmes, jun. Lane purchased of Holmes, jun., and whether the conveyance was made by Holmes or Bell, was, as between them, immaterial. There is no proof of actual notice to Lane, nor of any constructive notice, unless it be under the allegation of possession of the premises by Holmes, sen. Possession is sometimes notice of claim of title sufficient to put a pur- chaser on inquiry ; but it must be an actual possessions manifested by notorious acts of ownership, such as would naturally be observed by and known to the public. In this case there is no evidence of such possession. The premises consist of unenclosed woodland, except about two acres, which are included within the enclosure of an adjoining tract of forty-five acres. Upon it John Holmes, sen., occasionally cut wood, which cutting, under the cir- cumstances, would be regarded as so many trespasses quite as probably as acts of ownership. As to possession being notice, see Daniels v. Davison, 16 Yes. 249 ; Taylor v. Stillert, 2 Yes. 440; Smith v. Low, \ Atkyns 490 ; Allen v. Anthony, \ Merivale 282 ; 2 Fonb. f/j. B. 2, ch. 6, 3; and note (m) ; Hanbury v. Litchfield, 2 Nylne & Keene 629, 632-3 ; Flagg v. Mann, Sumner's R. 486, 554, 555. If Lane, then, were a l)onafid<- purchaser without notice* the sale to. the defendants by the administrators may be good, even though the defendants had such knowledge and notice of all the circumstances of the case. For it is VOL. IL 2 N 422 COUBT OF EEEOES AND APPEALS. Holmes v. Stout. well settled as a general rule, that the grantee of a ~bona fide purchaser without notice is not to be charged with the encumbrance or fraud, although directly known to him before he acquired his title ; otherwise the loss must be visited upon the bonafide purchaser, as he would there- by be obliged to keep the property, or to sell it at such price as would enable his purchaser to discharge the en- cumbrance or purge the fraud. Harrison v. Forth, free, in Ch. 51 ; 2 Fonb. Eq. B. 2, oh. 6, 2 ; Lowther v. Carlton, 2 Atk. 24:2 ; Ferrars v. Cherry, 2 Vern. 383 ; Mertins v. Jol life, Amb. fi. 313 ; Sweet v. Southcot, 2 Brown's Ch, JR. 66 } McQueen v. Farquhar, 11 Ves. 477-8 ; Ingrain, v. Pelham et al., Amb. 153 ; Alexander v. Pendleton, 8 Cranch 462 ; Fitzsimmons v. Ogden, 7 Cranch 2. In this view of the case, it is unnecessary to inquire into the alleged notice to the defendants. The bill must be dismissed with costs. The appeal was argued at June term, 1855, by Joel Parker and J. F. Randolph, of counsel with appellants, and W. L. Dayton, of counsel with respondents. The following opinions were now delivered. GREEN, C. J. The controversy in this cause relates to a tract of 22 acres of land in the county of Monmouth. The parties, complainants and defendants, both claim title under Andrew Bell, who it is admitted was seized in fee of the premises. The complainants claim as heirs at law of John Holmes, sen., who died intestate on the 13th of September, 1831. John Holmes, sen., derived title from Andrew Bell, by means first, of a deed from Bell to John Holmes, jun., dated 23d August, 1817, for 64.04 acres of land, which deed has never been recorded ; and secondly of a deed from John Holmes, jun., to John Holmes, sen., dated 10th December, 1817, for 22 acres. Acknowledged on the 1820, and recorded on the 19th of October, 1827. NOVEMBER TERM, 1855. 423 Holmes v. Stout. The defendants derive title from Andrew Bell, by means of a deed from Bell to Richard Lane, dated and acknowledged 28th August, 1827, for 64.04 acres, and re- corded on the 17th of September, in the same year, and of a deed from the administrators of Lane to the defendants, by virtue of an order of the Orphans Court of the county of Monmouth. The deed from Andrew Bell to John Holmes, jun., under which the complainants claim, never having been recorded, the later deed from Bell to Lane, under which the defendants claim, has acquired the priority by virtue of the registry act, JRev. St. 643, 18, unless either Lane is not, in the language of the act, a bona fide purchaser with- out notice, or unless the priority is lost by fraud. The bill of complainant charges, that the deed from Bell to John Holmes, jun., was fraudulently kept by the grantee from being recorded, and that the subsequent deed from Bell to Lane was procured by a conspiracy and collusion between John Holmes, jun. and Lane, for the purpose of defrauding John Holmes, sen., and those who might hold under him. The bill further charges, that at the time of the conveyance from Bell to Lane, Lane perfectly well knew of the deed from Bell to Holmes, jun., and also of the deed from John Holmes, jun., to John Holmes, sen., and that John Holmes, sen., was then in possession of the granted premises. The bill further charges, that the defendants purchased at the administrators' sale with full knowledge of the complainants' title, and with the view of defeating that title, and of defrauding those claiming under it. The case made by the bill is one of actual fraud against John Holmes, jun., and Richard Lane. That case is not supported by the evidence. There is no proof of actual fraud as against Richard Lane. No proof that when he took title from Bell, he know of the conveyance to John Holmes, sen., or of the existence of any outstanding title 424 COURT OF ERRORS AND APPEALS. Holmes v. Stout. adverse to the title which he acquired by virtue of his purchase and deed. In the absence of proof of actual fraud, the complain- ants nevertheless insists, that the title to Richard Lane has acquired no priority over the complainants' title by reason of priority of registry, because Lane was not a bona fide purchaser for a valuable consideration without notice of the prior deed from Bell to Holmes. The deed to Lane purports to have been made for a valuable consideration. That is sufficient evidence of the payment of the consideration until the contrary is proved. The evidence, so far as it goes, supports rather than im- pugns the recital of the deed. Lane, then in the absence of proof of actual fraud, must be regarded as a bona fide purchaser for a valuable consideration, unless he had notice of the prior title under which the complainants claim. The complainants insist that he had both actual and constructive notice of that title. The evidence shows unequivocally that, at the time of the conveyance from Bell to Lane, Lane was informed that a previous conveyance had been made by Bell to John Holmes, jun. The fact was distinctly and repeatedly stated by Bell, and upon this ground he at first refused to make the conveyance to Lane. But Holmes, to whom that conveyance was alleged to have been made, was present at the time, and denied the existence of any such title. He alleged that he had never received the deed, or if he had, that it was lost. Lane moreover purchased the title of Holmes, jun., and at his instance, took the con- veyance from Bell. He had notice of the prior conveyance sufficient to put him upon inquiry. But what inquiry could he have made that would have been availing ? The very party to whom the prior conveyance was made de- nied its existence, and requested the conveyance to be made to Lane. The prior deed was not upon record, nor was there upon record any deed from Holmes, the first grantee, to any subsequent purchaser. There is certainly NOVEMBEE TEEM, 1855. 425 Holmes v. Stout. strong ground for apprehension that John Holmes, jun., acted fraudulently. It is scarcely credible that he had for- gotten that he had received a deed for the property, and had subsequently conveyed it, by two distinct deeds, to separate parties. But, as has been said, there is no proof in the cause, and no reasonable ground for assuming that Lane knew of these conveyances, or was in any way a party to the fraud. To destroy the title acquired by prior registry, it is neces- sary that a party should have notice of a prior subsisting outstanding title. It is not enough that he has notice that a prior deed had been executed, if the notice conveys, also, the information that the title is not in existence. The ground upon which the title acquired by a prior registry of a deed is lost in case of notice to the second grantee of the existence of the prior conveyance, is that it is a fraud in the second grantee to take a deed, knowing or having reason to suspect the existence of the prior title. All the cases proceed upon this ground. Unless the information given to Lane touching the existence of a previous conveyance, was -of such character as to taint his conduct with fraud, as against those claiming under the prior title, the notice cannot effect the validity of his title. But how can his conduct in taking title from Bell be deemed fraudulent against the owners of the prior title? It was surely not fraudulent as against John Holmes, jun., for he denied the existence of any prior title, and it was at his instance and by his procure- ment that Lane took his title. Nor was it fraudulent as against John Holmes, sen., for of his title Lane had no notice, and no means of acquiring knowledge, had he been put upon inquiry. The remaining inquiry is, whether in the absence of ac- tual notice, Lane had constructive notice of the prior title. It is insisted that the possession of a part of the premises bj John Holmes, sen., at the time of the con- 2N* 426 COUKT OF EEEORS AKD APPEALS. Holmes v. Stout. veyance to Lane is constructive notice to him of the com- plainants' title. The rule in equity is, that whatever is sufficient to put a party upon inquiry is good notice. In Flagg v. Mann, 2 Sumner 554:, Justice Story said, the rule in equity seems to be, that when a tenant or other person is in possession of the estate at the time of the purchase, the purchase? is put upon inquiry as to his title ; and if he does not in quire, he is bound in the same manner as if he had in- quired, and had positive notice of the title of the party in possession. This will be found to be the recognised and well set- tled doctrine of courts of equity. Daniels v. Davison, 16 Vesey 249 ; S. O. 17 Vesey 433 ; 2 Fond. Eq., ch. 6, 3 ; Hall v. Smith, 14 Vesey 426 ; Taylor v. Siilebert, 2 Vesey 440 ; Eyre v. Doepain, 2 Ball & B. 290 ; Duke v. Page, 2 Green, 's Chan. R. 154. The same doctrine is adopted, both by courts of law and of equity, in the construction of the registry acts. The subject underwent a very full discussion in the case of Tuttle v. Jackson, before the Court of Errors of the state of New York. Walworth, C., in delivering the opin- ion of the court, stated the law thus : If ther subsequent purchaser know of the unregistered mortgage at the time of purchase, he cannot protect himself against that con- veyance ; and whatever is sufficient to make it his duty to inquire as to the rights of others, is considered legal notice to him of those rights. Here Tuttle, the person to whom the unregistered deed was given, was in the possession of the premises at the time of the sheriff's sale, and this was good constructive notice to the subsequent purchaser to make it his duty to inquire as to the rights of the person in possession. ****** By our registry acts, the un- registered deed is only void as against a subsequent oona fide purchaser. The rule of equity here is therefore the rule of law ; and whatever would in equity charge the party with notice of the equitable rights of a prior pur- NOVEMBER TERM, 1855. 427 Holmes v. Stout. chaser or encumbrancer, so as to deprive him of the pri- vilege of pleading that he is a Ttona fide purchaser without notice, must in a court of law be sufficient to protect the legal rights acquired under the unregistered decree against the subsequently recorded conveyance. 6 Wend. 226-7. Our own statute (Rev. Stat. 644, 18,) like that of New York, makes the unregistered deed void only as against a subsequent bona fide purchaser. The argument therefore is applicable here. In Norcross v. Wedging, 2 Mass. 508, Ch. Justice Par- sons said : " The provision of the statute for registering conveyances is to prevent fraud by giving notoriety to alienations. But if the second purchaser had notice of the first conveyance, the intent of the statute is answered, and his purchase afterwards is a fraudulent act," (in other words, he is not a bonafide purchaser). This notice may be express, or it may be implied from the first purchaser being in the open and exclusive possession of the estate under his deed. The same principle is declared in Colby v. Kennwton, 4 New Hamp. 262, and in Davis v. Blunt, 6 Mass. 487. Chancellor Kent states the doctrine in a somewhat modi- fied or more guarded form, thus : " The statute of New York postpones an unregistered deed only as against a subsequent purchaser in good faith and for a valuable consideration, and this lets in the whole of the English equity doctrine of notice. * * * The doctrine of notice equally applies, however, as I apprehend, throughout the United States, and it everywhere turns on a question of fraud, and on the evidence necessary to support it. In pursuance of that policy, and in order to support at the same time the policy and injunctions of the registry acts in all their vigor and genuine meaning, implied notice may be equally effective with direct and positive notice, but then it must not be that notice which is barely sufficient to put a party upon inquiry. Suspicion of notice is not suf ficient. The inference of a fraudulent intent affecting 428 COUKT OF EEEOES AKD APPEALS. Holmes v. Stout. the conscience must be grounded on clear and strong cir- cumstances in the absence of actual notice. The inference must be necessary and unquestionable." 2 JZenfs Com. 171-2. .j Every possession will not amount to implied notice. It must be an actual and exclusive possession manifested by notorious acts of ownership, and such as would naturally be observed and known by others. Merely cutting wood or pasturing cattle on unenclosed woodland, repairing the fences, and even removing an old house standing on part of the land, which may be regarded as mere acts of tres- pass as well as of ownership, have been held insufficient. Nor does even actual open notorious possession of the land necessarily and in all cases create a presumption of notice. If, for example, the first purchaser were previously in pos- session as lessee, and after purchase continue in possession as grantee without any actual visible change in the char- acter of his possession, this could not operate as notice to a second purchaser, who knew of the previous possession as lessee, and had no notice of the actual change of title. McMeehan v. Griffing, 3 Pick. 149. The tract in question, with the exception of three and a quarter acres, is unenclosed woodland, in which John Holmes, sen., was accustomed to cut wood. Three and a quarter acres were cleared land, enclosed and in the actual occupation of John Holmes, jun. It appears, how- ever, that owing to a mislocation of the survey, this three and a quarter acres were cleared and enclosed with a fence upon a forty-five acre tract, purchased by John Holmes, sen., of William Holmes many years previously to his purchase of Bell. It was held and occupied as a part of the purchase from "William. Holmes. It was en- closed, and in the open notorious occupation of John Holmes, sen., long before his purchase from Andrew Bell. How is it possible, then, that the possession of this lot by John Holmes, sen., should have been notice to Richard Lane of the conveyance from Bell to Homes? To pre- ]S T OYEMBER TERM, 1855. 429 Holmes v. Stout. sume such notice would be obviously a presumption with- out proof and against probability. There being evidence neither of an actual or presump- tive notice to Richard Lane, or at the time he acquired title of a previous outstanding title acquired from An- drew Bell, Lane is a lona fide purchaser without notice ; and consequently, he had a valid title acquired by priority of registry. The previous conveyance by Andrew Bell to John Holmes, jun., as against Lane, is, by the terms of the statute, void and of no effect. This being the case, it is immaterial whether Stout and Williams, at the time of their purchases, had or had not notice of the title of the complainants. The rule ia well settled, that if a person having notice of a previous outstanding title purchase from one having no notice, the second purchaser may protect himself by want of notice in his vendor ; in other words, the title of the first pur- chaser being perfect, he may transmit a perfect title to his vendee. The rule is obviously necessary to secure to a ~bona, fide purchaser without notice the full benefit of the purchase. Brandlyn v. Ord, 1 Aik. 571 ; Mertins v. Jol- liffe, AmbUr 313 ; Sweet v. Southcote, 2 Bro. Chan. Cos. 66 ; Bumpeer v. Platun, 1 Johns, Ch. 7?. 219 ; 2 Forib. Eq. 148, B. 2, ch. 6, 2, note i. The decree of the Chancellor should be affirmed with costs. POTTS, J. This is an appeal from a decree of the Chan- cellor dismissing the complainants' bill upon the final hear- ing with costs. The bill was filed by Joseph Holmes and others, who claim title to a tract of 22 acres of land in Dover, now Ocean county, being part of a tract which, they allege, Andrew Bell conveyed to John Holmes, jun., and which 22 acres he conveyed to John Holmes, sen., under whom the complainants hold as heirs or purchasers. The de- fendants, Stout and Williams, are in possession of the 430 COUKT OF EKKOKS AND APPEALS. Holmes v. Stout. land under a deed from the administrators of Richard Lane, deceased, who was also a purchaser from Bell. The prayer of the bill is, that the title deed of the defendants may be decreed to be null and void ; may be delivered up to the complainants ; that the defendants may be enjoined against setting up their title to the premises ; and that the complainants' title may be declared good and operative, and an account of rents and profits taken. It appears in evidence that, on the 23d August, 1817, John Holmes, jun., purchased of Andrew Bell a tract of 64.04 acres of land, for the consideration of $119, for which he gave his promissory note, and took from him a deed of conveyance, which was never recorded. On the 19th of October, 1817, John Holmes, jun., sold and con- veyed to John Holmes, sen., 22 acres, being part 'of the same premises, which deed was acknowledged on the 2d Au- gust, 1820, but was not recorded until the 19th October, 1827". On the 27th August, 1827, according to Andrew Bell's testimony, the said John Holmes, jun., in company with Richard Lane, called upon Bell, and said he did not re- 1 collect getting his deed from him, as he could not find it among his papers. Bell told him he was sure he had it, and must search among his papers for it, and if he could not find it by the October term of the court, he, Bell, would bring with him the original return, and do what might be advisable in relation to giving him another deed. The next day John Holmes, jun., and Lane called again on Bell, and prevailed on him to execute a deed to Lane, to whom Holmes said he had sold the land. This deed to Lane was made for the reason that Holmes assured Bell the deed to himself was lost ; and Holmes gave Bell, at :the time, a stipulation in writing under seal, that if the first deed should ever be found, it should not be used as a title paper, but should be cancelled. The object of making the deed to Lane was to save the expense of another con- veyance. Lane paid the consideration money he had agreed rto give for the land, $60, to Bell and it was credited on NOVEMBER TEEM, 1855. 431 Holmes v. Stout. John Holmes', sen., note for $119, which Bell still held. Lane was present at both interviews, and heard all that passed. Lane had his deed recorded on the Ylth September, 1827, a little more than a month before the deed for the 22 acres, from John Holmes, jun., to John Holmes, sen., M'as put on record. The complainants charge, that the execution and delivery of this deed from Bell to Lane, was procured and brought about by a conspiracy and collusion between John Holmes, jun., and said Lane, who were brothers in law, for the purpose of defrauding the said John Holmes, sen. ; that it was with this design that John Holmes, jun., omitted to put his deed of 1817 from Bell on record, and has either destroyed it or keeps it concealed ; that, Lane, when he took the deed from Bell, knew of the prior con- veyances from Bell to Holmes, jun., and also of the con- veyance from Holmes, jun., to Holmes, sen., of the 22 acres parcel of the premises, and also knew that Holmes, sen., was then in possession of the lot. And the com- plainants also charge, that Stout and Williams, when, in 1832, they purchased the tracts of the administrators of Lane, knew of the first deed to Holmes, jun., and of hie conveyance of the 22 acres to Holmes, sen. ; and also knew that Holmes, sen., and his heirs and the complainants had been in possession of the premises ever since the purchase by Holmes, sen., and that they, the defendants, purchased with a view to defeat the Holmes, sen., title, and defraud those who held under him. The defendants, in their answer, deny that Bell ever made any deed for the land to John Holmes, jun., and say, if he did, they never saw it, and never heard that such a deed had been made until after their purchase. They further deny that they ever heard of a deed having been made by John Holmes, jun., to John Holmes, sen., until since the filing of this bill. They deny all fraud and collusion charged against them in the bill, and also deny that John Holmes, sen., or his heirs or the complainants. 432 COUKT OF ERRORS AND APPEALS. Holmes v. Stout. ever had possession of the premises in question ; but, on the contrary, allege that Lane always had the possession during his life, and that they have had the possession since their purchase. There is nothing in the evidence in the cause which goes to establish the charge of fraud and collusion on the part of Richard Lane. Indeed, this ground of relief was not much insisted on by the counsel for the appellants in their argument. But they put their case upon the title derived through John Holmes, sen., and John Holmes, jun., from Bell ; and insist, that though the deed from Bell to John Holmes, jun., has never been recorded, and the deed from John Holmes, jun., to John Holmes, sen., was not recorded until more than a month after that from Bell to Lane ; yet that their title must prevail over the Lane title, because, as they allege, Lane was not a T)ona fide purchaser for a good consideration without notice of the prior unre- corded conveyance. There is satisfactory evidence of the conveyance by Bell to John Holmes, jun., on the 23d August, 1817, of the 64 acres. Bell himself testifies with great positiveness to the fact; and he produces the original return of the tract, made to himself by endorsements, on which it appears that the conveyance was made at that time, and the note for $119 taken as the consideration. He produces tho note dated the 23d August, 1817, with the receipt of the $60 paid by Lane, in 1827, endorsed on it. And a certified copy of the deed for the 22 acres, from John Holmes, jun., to John Holmes, sen., is also produced, dated December 10th, 1817, which recites a conveyance of the 64 acre tract from Bell to Isaac Holmes, jun., though with blanks for the dates. But these deeds were unrecorded at the time that Lane purchased. And if he stands in the situation of " a bona fide purchaser for a valuable consideration, not having notice thereof," within the meaning of the 8th section of the act respecting conveyances (Patersorfs L. 399), which NOYEMBEE TEEM, 1855. 433 Holmes v. Stout. governs this case, he is entitled to the benefit of the pro- vision, that such prior unrecorded conveyances " shall be void and of no effect against " him. Then I. As to the deed from Bell to John Holmes, jun,, of 23d August, 1817. It is clear, from the evidence in the cause, that Lane had notice of the fact, that Andrew Bell had, on the day last mentioned, made a deed of convey- ance of the 64.04 acres to the said John Holmes, jun.; for Holmes went with him to Bell, on the 27th August, 1827, and in his presence and hearing the matter of this deed was talked over ; and although Holmes at first said he had no recollection of having received it, yet Bell convinced him it had been executed and delivered to him. But we must take the whole of what passed in the presence of Lane together ; and we find, that though Holmes, jun., finally admitted he had received the deed, yet he affirmed that he could not find it, that it was lost ; and it was on this account, and to supply the place of the lost deed to Holmes, that the deed to Lane, to whom Holmes said he had sold the property, was made ; and at the same time Holmes stipulated to cancel the lost deed, if found, and that it should never be set up as a title. Of what, then, had Lane notice ? Simply of the fact, that a deed had been executed and delivered in 1817, had been lost or mislaid, and was thenceforth to be considered and treated as a void deed, and to be inoperative as an instrumen't of title. Now fraud, or mala fides, is the ground upon which courts proceed in dealing with these cases of notice. If one takes the title to an estate, knowing at the time that the right is in another, that pome one else has a title, though unrecorded, derived from the party with whom he treats, it is a fraud in him to take advantage of the want of registry to defeat the outstanding title by taking a con- veyance to himself, and is dealt with accordingly. Le JVeve v. Le Neve, 1 Ve#. sen. 64; JoUand v. Stainbridge, '3 Yes. 478; Dey v. Dunham. 2 Johns. Ch. A\ 182; Jackson v. VOL. ii. 2 o 434 COURT OF ERRORS AND APPEALS. Holmes r. Stout. urgot, 10 Johns. R. 462 ; 1 Story's Eq. Jur. 397 ; 4 JTenfs Corn. 171. And so, whatever is sufficient to put a person upon in- quiry is good notice. But, as was well said by the court in Boggs v. Varner, 6 Watts (& 469, 474, "as every presumption is in favor of the subsequent purchaser, when the former owner is guilty of neglect, his title cannot be postponed, except by evidence which taints his conduct with fraud. And this, it is obvious, ought not to be done by testimony in its nature vague and indefinite and leading to no certain results, such as that he ought to have known of the prior title, because he lived near the owner, in the same town, perhaps, or on the next lot ; that he was well acquainted with him, or because the title was well known to others. This may well be true, and yet at the time he pays his money he may be ignorant of any other title than his own. It is not just that inferences should be strained in favor of the person by whose default the mischief has been done. See Jones v. Smith, 1 Hare 55, and cases there cited. In Rogers v. Janes, 8 New Samp. 264, where a vendor exhibited a prior deed for the land to the party about to purchase, and told him, at the same time, that it had never been delivered, it was held that this statement, fortified as it was by the actual possession of the instrument, was not sufficient to put the purchaser on inquiry of the grantee named in the deed, though the deed had in fact been de- livered, and had been handed back to the vendor on the faith of a promise to have it recorded. These cases establish and illustrate the rule, that upon questions of this nature the only proper subject of in- quiry is, whether the second purchaser has acted in bad faith ; for if he had actual knowledge that the property was in some way charged, encumbered, or affected, or the circumstances satisfy the court that he fraudulently turned a~.vay from the knowledge of facts which the res gestcz would naturally suggest to a prudent mind, in order to NOVEMBER TERM, 185o. 435 Holmes v. Stout. avoid nol ice, he is not entitled to the protection of the statute. But the case before us is that of one who pur- chased in the presence of the party to whom the prior conveyance was made purchased not only with the con- sent, but in fiulfilment of an agreement made with the first purchaser, the party who had received the prior deed, and who was then protesting that he had lost it, and stip- ulating to cancel it if ever found, and who, in fact, re- ceived the benefit of the purchase money. There is surely no fry. ad in this transaction, no mischief perpetrated which it wo/; the intention of the statute to prevent. Lane was a pu :chaser, certainly so far as the deed from Bell to John Holmes, jun., is concerned, not having notice within the moaning of the statute. It has been suggested that the nf -tice to Lane, that John Holmes, jun., had once had a deed fzr the land, is decisive, because it apprized Lane of the fact, that, whatever Holmes might say to the contrary, he had had the power, and might have exercised it, of con- veying to somebody else. But the conclusive answer is, that this amounted to neither actual nor constructive no- tice that any such conveyance had been made, and no knowledge of the existence of any such deed is brought home to Lane, nor was any such on record. For II. As to the deed from John Holmes, jun., to John Holmes, sen., it is not pretended that- Lane had any actual notice of that at the time he purchased. There is no evi- dence that Lane had any information or knowledge that John Holmes, jun., had conveyed away the tract, or any part of it, to anybody. All that is in evidence of what was said and done at the time of the purchase was calcu- lated to negative such an idea. We are not at liberty to guess, because they were brothers in law, that therefore Lane must have known of the fact. And even if Lano had, out of abundant caution, undertaken to inquire whether John Holmes, jun., had sold to anybody, there was no clue* to guide him in the inquiry, for there was no 436 COUKT OF ERRORS AND APPEALS. Holmes v. Stout. deed either from Bell or from John Holmes, jun., upon record. It is said that John Holmes, sen., had possession of the tract at the time, and that that was constructive notice. Undoubtedly the possession of the premises by the prior purchaser may operate as a notice, but it must be an open, actual, unequivocal possession, and of a nature to put a purchaser on his guard, and not to mislead him. Bush v. Golden, 17 Conn, 594 ; Butler v. Stevens, 26 Maine 484 ; Henrick v. Powell, 9 Alabama, 409 ; Mecham v. Grijfing, 3 Piek. 149. In the last case cited, it was held, that occasional acts of ownership, by pasturing cattle or removing fences, would not be sufficient, unless they were so far continuous that, if done by wrong under a claim of title, they would lose the character of mere trespasses, and acquire that of disseisin. And the occasional acts of cutting fire-wood on an open unenclosed wood lot is within the same principle, for there is nothing in such an act to distinguish it from a trespass. The tract in question was timber land lying out in common ;' it lay adjoining other unenclosed land of the same description. The only evidence of cutting, up to the time of Lane's purchase, in 1827, is that of Jacob Holmes, who says his father, John Holmes, sen., used to get his fire-wood off of that and the other woodland he owned adjoining it, and was not particular on which part he cut. This is not evidence of such a possession as could operate as a notice of a claim of title. Upon the whole, it is clear that, so far as Lane is con- cerned, his title was acquired in good faith' and without notice. III. The counsel for the appellants, assuming that they had successfully assailed Lane's title, contended that they were entitled to the relief prayed for in their bill against Stout and Williams, the appellees, on the ground, that at the time they purchased the land, in 1832, at a sale made by the administrators of Lane under an order of the NOVEMBEE TEEM, 1855. 437 Dunham v. Cox. Orphans Court, they had notice, both actual and construc- tive, of the Holmes, sen., title. But to this the decisive answer is, that if Lane was a bona fide purchaser without notice of the prior title, it is of no consequence what notice or knowledge either Lane or his grantees may have subsequently received. For the title, thus legally acquired, could not be defeated by any- thing subsequently brought to the notice of either. The registry act would furnish no protection at all, if the title qf a honafide purchaser, not having notice of a prior con- veyance at the time of the purchase, could be affected by any notice afterwards given to him ; and as he could not be, his grantees cannot be. 71 Law Lib. 131 (2 White & Tudor, Cos. in Eq.) ; 1 Story's Eq. Jur. 409, 410. The decree of the Court of Chancery is, in my judg- ment, right, and should be affirmed. Decision affirmed by the following vote : For affirmance CHIEF JUSTICE, Judges AEEOWSMTTH, CORNELISON, ELMEE, HUTLER, OGDEN, POTTS, EISLEY, EYEE- SON, VALENTINE, WILLIAMSON, WILLS. For reversal None. CITED tn Hoy v. Bramhall, 4 C. E. Gr. 572 ; Coleman v. Barklew, 3 Dutch. 359. Between ASA C. DUNHAM, NEHEMIAII DUNHAM and AZA- EIAII W. DUNHAM, appellants, and JAMES B. Cox, re- spondent. That a judgment and execution creditor may maintain a bill in a court of equity to remove out of the way fraudulent encumbrances placed by a debtor upon his property, in order that the property may be appropriated free from such fraudulent encumbrances to the satisfaction of the credi tor's judgmoat, is well established. L> O* 438 COUET OF EREOES AND APPEALS. Dunham v. Cox. When a creditor has by a judgment established his debt, by the statute he ac- quires a lien upon all the real estate of his debtor to satisfy his debt. If the debtor has fraudulently conveyed away or encumbered his real estate, so as to interpose an obstacle which embarrasses the debtor in appropriating it by legal process in satisfaction of his debt, then the creditor may file his bill to remove out of the way such fraudulent conveyance or encumbrance. It is not necessary for him to take out execution upon his judgment. It is, perhaps, most advisable for him to do so ; it may avoid a contest with a subsequent execution creditor. But if it is the personal property of the debtor which the creditor wishes to reach and appropriate to the payment of his judgment, he must take out an execution upon his judgment before he can exhibit his bill ; for it is by the execution, and not by the judgment, that he acquires a lien upon the personal property. It is not enough for the bill to show that the debtor has made a fraudulent disposition of any particular portion of his property to entitle the creditor to the aid of a court of equity ; he must show that such disposition embar- rasses him iii obtaining satisfaction of his debt. Facts must be stated from which, at least, the inference may be drawn that the aid of a court o'f equi- ty is required to give the judgment its legal and full effect. Bill defective on demurrer. On the 3d day of April, 1^50, James B. Cox, the re- spondent, filed his bill in the Court of Chancery of New Jersey against the above named appellants. The bill sets forth, that he (the said James B. Cox), having a just and lawful claim against one Asa C. Dun- ham, of Clinton, in the county of Hunterdon, in said state, amounting to about twelve hundred dollars, of prin- cipal and interest, upon three several promissory notes of the following descriptions, to wit : one note for four hun- dred dollars, bearing date the twenty-third day of Octo- ber, eighteen hundred and thirty-three, made and exe- cuted by the said A. C. Dunham to your orator, and pay- able three months after date. The second note, bearing date the fifth day of November, eighteen hundred and thirty-three, for three hundred dollars, made by one Bray and Taylor to the said Asa C. Dunham, or order, and on the same day endorsed and delivered by the said Asa C. Dun- ham to your orator. The third note, made by the said Bray and Taylor to the said Asa C. Dunham, on the twenty- second day of September, eighteen hundred and thirty- NOVEMBER TEEM, 1855. 439 Dunham v. Cox. two, for four hundred dollars, payable on the fourth day of October then next, and by the said Asa C. Dunham, on the same day, endorsed and delivered to your orator.' Your orator commenced a suit in the Supreme Court of Judicature of said state, in the term of November, eigh- teen hundred and thirty-four, for the recovery of said notes. That afterwards, to wit, at a Circuit Court, held in May, eighteen hundred and thirty-five, at Flemington, in said county, the said Asa C. Dunham, by Alexander Wurts, esquire, his attorney, relinquished the plea by him pleaded in said cause, and consented that judgment should be rendered in said cause in favor of your orator, and against the said Asa C. Dunham, for the sum of one thousand two hundred nineteen dollars and twenty-one cents, be- sides costs to be taxed. And your orator further shows unto your honor, that afterwards, to wit, at a term of the said Supreme Court, held at Trenton on the - - day of May, eighteen hundred and thirty-five, in the term of May, by the consideration and judgment of the said court, your orator recovered against the said Asa C. Dun- ham the sum of one thousand two hundred and nineteen dollars and twenty-one cents, damages, so as aforesaid ac- knowledged, and also the further sum of forty dollars and seventy-eight cents, for your orator's costs and charges by your orator in and about the said suit in that behalf ex- pended, which were adjudged to your orator by the said court, whereof the said Asa C. Dunham is convicted, as appears by the record of the said judgment, now in tho office of the clerk of said court at Trenton, in the said state of New Jersey, or by an exemplified copy thereof, now in the possession of your orator, and ready to be pro- duced when and where this honorable court shall direct, reference being thereunto had will more fully and at large appear, and to which your orator, for greater certainty, prays leave to refer. And your orator further shows unto your honor, that the said judgment, so recovered in manner aforesaid 440 COUKT OF EEEORS AND APPEALS. Dunham v. Cox. against the said Asa C. Dunham, still remaining in full force and virtue and effect, and not satisfied of record nor in any manner vacated, and the said sum of money re- maining due and unpaid, your orator, by his attorney, Thomas A. Hartwell, for the purpose of obtaining satis- faction, of the said judgment, sued out of the said Supreme Court a writ of fieri facias de bonis et terris, tested of the term of May, eighteen hundred and thirty-five, and re- turnable to the term of September then next after, di- rected to the sheriff of the said county of Hunterdon, by which 'said writ the said sheriff of said county of Hunter- don was commanded, that of the goods and chattels of the said Asa C. Dunham, in his county, he should cause to be made the sum of one thousand two hundred and fifty-nine dollars and nineteen cents, damages, to satisfy the said judgment so recovered by your orator against the said Asa C. Dunham as aforesaid ; and if sufficient goods and chattels of the said Asa C. Dunham could not be found in said county, that then the said sheriff was fur- ther commanded, that he should cause the whole, or the residue, as the case might require, of the said damages to be made of the lands, tenements, hereditaments, and real estate whereof the said Asa C. Dunham was seized on the twelfth day of May, eighteen hundred and thirty-five, or at any time after, in. whose hands soever the same might be ; and that the said sheriff should have those moneys before our said justice of the said Supreme Court in the term of September next after, to render to your orator for his damages aforesaid to satisfy said judgment, and that the said sheriff should also have then and there that writ. And your orator further shows unto your honor, that he has been informed, and believes it to be true, that the said writ of fieri facias, before it was delivered to the said sheriff, was duly recorded according to the form of the statute in such case made and provided, directing the said sheriff to levy the said sum of one thousand two hun- dred and fifty-nine dollars and ninety-nine cents, with in- NOVEMBER TEEM, 1855. 441 Dunham v. Cox. terest from the date of the said judgment, besides his fees and charges : and that the said writ, so endorsed, was be- fore the return day thereof, to wit, on the fifteenth day of May, eighteen hundred and thirty-five, delivered to Asa Jones, esquire, sheriff of the said county of Hunterdon, to be executed according to law. And your orator further shows unto your honor, that he has been informed, and believes that the said writ of fieri facias was, in due form of law, returned by the said sheriff into the clerk's office of the said Supreme Court at Trenton, in the term of September, eighteen hundred and thirty-five, with his return thereto, as follows : Nulla- bona. A. Jones, sheriff. Fees 12 cts. as by the said writ, remaining unsatisfied in the said clerk's office at Trenton, by the said sheriff's return thereon endorsed, reference being had thereto, will more fully and at large appear, and to which, or a copy thereof, now in the possession of your orator, and ready to* be produced when and where this honorable court shall direct, your orator prays leave to refer. And your orator further shows unto your honor, that the said judgment has never been paid or satisfied to your orator, or to any person or persons for his use or benefit, nor has he ever derived any benefit from the same ; that the said judgment remains due and owing to your orator, and in full force and effect against the said Asa C. Dun- ham, in no wise vacated, annulled, reversed, or satisfied. And your orator further shows unto your honor, that there is now justly, and equitably and actually, due to your orator upon his said judgment the sum of twelve hundred and nineteen dollars and twenty-one cents, besides the taxed costs, together with the legal interest thereon from the date of the said judgment, over and above all just claims of the said Asa 0. Dunham, by way of set-off or otherwise. And your orator further shows unto your honor, that afterwards, to wit, on or about the tenth day of January, COURT OF ERRORS AND APPEALS. Dunham v. Cox. eighteen hundred and fifty, he caused to be issued out of said Supreme Court, upon his said judgment, a second writ, commonly called an alias fieri facias de bonis et terris, directed to the sheriff of the said county of Hunterdon, tested of the term of January, eighteen hundred and fifty, and returnable to the term of April next after, command- ing the said sheriff, that of the goods and chattels of the said Asa C. Dunham, in his county, he should cause to be made the sum of one thousand two hundred fifty-nine dollars and ninety-nine cents, the damages aforesaid, to satisfy the said judgment so recovered by your orator against the said Asa C. Dunham ; and if sufficient goods and chattels of the said Asa C. Dunham could not be found in the said county, whereof the damages aforesaid might be made, then the said sheriff was further com- manded, that he should cause the whole, or the residue of the said damages, to be made of the lands, tenements, hereditaments, and real estate whereof the said Asa C. Dunham was seized on the twelfth day of May, eighteen hundred and thirty-five, or at any time after, in whose hands soever the same might be ; and that the said sheriff should have that money before our justices of our said Supreme Court at Trenton, on the first Tuesday of April, eighteen hundred and fifty, to render to your orator for the damages aforesaid, and that he should also have then and there that writ. And your orator further shows, that the said last mentioned writ, before the delivery thereof to the said sheriff, was duly recorded according to the form of the statute in such case made and provided, and that, after the same was so recorded, it was delivered to Garret Servis, esquire, sheriff of the said county of Hunterdon, to be executed. . And your orator further shows to your honor, that the said Garret Servis, esquire, sheriff as aforesaid, by virtue of the said writ, made the following levy, to wit : " By virtue of the above stated writ, I have levied on the following property of Asa C. Dunham, viz. 3 stacks of NOVEMBER TERM, 1855. 443 Dunham v. Cox. ivheat, 2 stacks of oats, about 14 acres of green grain in tiie ground, 12 head of cattle (steers), and 190 sheep, sub- ject to all prior legal encumbrances value one dollar. January 18th, 1850. I have also levied, by virtue of the above stated writ on the right and title of the said Asa C. Durham to the following real estate, vis. a tract and parcel of land, situ- ate in the townships of Bethlehem and Franklin, in the county of Hunterdon, adjoining lands now or late of James W. Hope, Robert Foster, and others, containing sixty-nine and a half acres of land, more or less (except- ing thereout four several lots heretofore sold and con- veyed to Michael Hagerty, Alexander Probasco, Joseph Y. D. Stout, and James W. Hope). Also, a certain tract or parcel of land, situate in the townships of Bethlehem and Franklin, , in said county, adjoining lands of Joseph Boss, Daniel parhart, and others, containing ninety-four acres of land, more or less. Also, a lot of land, situate in the township of Bethle- hem, in said county, adjoining lands of Peter Case and others, containing sixty-five hundredths of an acre of land, more or less. Also, a certain lot or parcel of land, situate in the township of Lebanon, in said county, adjoining lands now or late of Abraham Banghart and others, containing eleven acres of land, more or less. Also, a certain lot of land situate in the township of Bethlehem, in said county, adjoining lands now or late of Martha Wilson and others, containing five acres of land, more or less. Also, a lot of land, in said township of Bethlehem, in said county, adjoining lands now or late of Martha AVilson and others, containing twenty-four acres of land, more or less. Also, three lots of land, situate in said townshjp of Bethlehem, in said county, being a part of the bog mea- dow tract, and called lota No. 7, 8, and 9 ; said lot, No. 7, 4M COUKT OF ERRORS AND APPEALS. Dunham v. Cox. containing ten acres of land, more or less ; No. 8, con- taining ten acres of land, more or less ; No. 9, five acres, more or less. Also, a lot of land, situate in Clinton, town- ship of Bethlehem, in said county, containing one and a half acres of land, more or less, being the same conveyed by Robert Foster, jun., to John "W. Bray and John B. Taylor, their heirs and assigns, by deed bearing date the 5tb day of April, 1828. Also, another lot in the village of Clinton, township of Bethlehem, in said county, adjoining the last mentioned lot, containing eight-tenths of an acre of land, more or less, excepting out of the last mentioned two lots of land certain parts heretofore conveyed to John Green and Israel Smith. Also, a certain tract or parcel of land, situate in the township of Clinton, in said county, adjoining lands now or late of David harp, Joseph Fritts, and others, con- taining seventy-seven acres of land, more or less ; all subject to all prior legal encumbrances value one dollar. March 4th, 1850." Reference being had to the said writ, levy, and return will more fully appear, and to which your orator prays leave to refer, if it shall be necessary for him so to do. And your orator further shows, that shortly before, and at the time your orator obtained his said judgment, to wit, in the month of May, eighteen hundred and thirty- five, the said Asa C. Dunham owned and possessed, in his own right, sundry goods and chattels, and was the owner in fee simple of the lands and tenements, with the appur- tenances hereinafter described, lying and being in the said county of Hunterdon. And your orator further shows unto your honor, that the said Asa C. Dunham, being so seized and possessed of real and personal property to the value of six thousand dollars and upwards, to wit, on or about the sixteenth day of September, eighteen hundred and thirty-four, in order to defeat your orator in his said claim, which he NOVEMBER TERM, 1855. M5 Dunham v. Cox. then and still has against him, the said Asa C. Dunham, and in order to protect the said property against the said claim, and to secure it for his own use, combining and confederating with one Azariah "W. Dunham and Nehe- miah Dunham, his brothers, with divers other persons at present unknown to your orator, but whose names, when discovered, your orator prays may be inserted herein, with apt and proper words to charge them in the premises, contriving to injure and oppress your orator in the premises, and under various pretences sold and delivered to the said Azariah "W. Dunham and N'ehemiah Dunham, and to divers other persons at present unknown to your orator, and who now claim the same as their own, large quantities of personal estate of great value, to wit, of the value of one thousand dollars or thereabouts, which property ought in justice to be yielded up by the said Azariah and the said Nehemiah to satisfy the said claim of your orator. And your orator has been informed and believes, and so charges, that the said sale of the afore- said personal property was without any just consideration, and intended to be made for the sole purpose of depriv- ing your orator and others, creditors of the said Asa C. Dunham, of his and their just and honest claims. And your orator further shows unto your honor, that, as he hag been informed and verily believes, the said Asa C. Dunham, on or about the said day and year last afore- said, combining and confederating with the said Azariah "W. Dunham and Nehemiah Dunham, and with divers persons at present unknown to your orator, but whose names, when discovered, your orator prays may be in- serted herein with proper and apt words to charge them in the premises, contriving to oppress and injure your orator in the premises, fraudulently, by his certain deeds of indenture of bargain and sale under his hand and seal executed by and between himself, of the first part, and the said Azariah "VV. Dunham, of the second part, purporting to bear date on the sixteenth day of Septera- VOL. n. z P 446 COURT OF ERRORS AND APPEALS. Dunham v. Cox. ber, eighteen hundred and thirty-four, the first purporting to be for the consideration of two thousand three hundred dollars, and is in the words and figures and in substance following, to wit : " This indenture, made this sixteenth day of September, in the year of our Lord one thousand eight hundred and thirty-four, between Asa C. Dunham, of the town- ship of Kingwood, in the county of Hunterdon, and state of New Jersey, party of the first part, and Azariah "W. Dunham, of the township of Bethlehem, in the county of Hunterdon, and state of ' New Jersey aforesaid, party of the second part ; witnesseth, that the said Asa C. Dunham, for and in consideration of the sum of two thousand three hundred dollars, good and lawful money of the United States of America, to him, the said Asa C. Dun- ham, in hand paid, or secured to be paid, at and before the sealing and delivery of these presents, the receipt where- of he, the 'said Asa C. Dunham, doth hereby acknowledged and discharge him, the said Azariah W. Dunham, his heirs and assigns for ever, hath given, granted, bargained, sold, aliened, enfeoffed, released, conveyed, and confirmed, and by these presents doth, grant, bargain, sell, alien, enfeoff, release, convey, and confirm unto him, the said Azariah W. Dunham, his heirs and assigns for ever, all those several lots, tracts, or parcels of land situate, lying, and being in the township of Lebanon, Kingwood, and Bethleham, in the county of Hunterdon, and state of New Jersey aforesaid, the first of which being the equal undivided half part of all those two lots or parcels of land situate in the townships of Bethlehem and Kingwood, in said county ; the first of which, with the 'buildings, is situate in the townships of Bethlehem and 'Kingwood aforesaid, and is bounded and described as fol- 'lows : Beginning at a corner of land now belonging to .James "W. Hope, at the abutment of an old bridge on the west bank of the South branch of Raritan river, from thence running, &c. COURT OF EEEOES AND APPEALS. 447 Dunham v. Cox. The second of said lots or parcels of land is bounded and described as follows : beginning at a stake on the north side of the New Jersey turnpike-road, and in Cle- ment BonnelTs line ; from thence running, &c, Also, all the undivided half part of all that certain lot or parcel of land situate, lying, and being in the town- ship of Bethlehem, in the county and state aforesaid, and is bounded and described as follows : beginning at a flat limestone rock on the northerly side of the New Jersey turnpike road, corner to a lot belonging to John Green ; from thence running, &c. Also, all the undivided half part of all that certain lot or parcel of land situate, lying, and being in the town- ship of Lebanon, in the county and State aforesaid, and is bounded and described as follows, beginning, &c. And, also, all the estate, right, title, interest, property, claim, and demand whatsoever, either in law or in equity, of him, the said Asa C. Dunham, of, in, and to the said several lots, tracts, or parcels of land, and every part and parcel thereof : to have and to hold all and singular the said several lots, tracts, or parcels of land, with the here- ditaments and premises hereby granted, with the appur- tenances, unto him, the said Azariah W. Dunham, his heirs and assigns, to the sole and only proper use, benefit, and behoof of him, the said Azariah AV. Dunham, hia heirs and assigns for ever. And the said Asa C. Dunham, for himself, his heirs, executors and administrators, doth hereby covenant, grant, promise and agree, to and with the said Azariali W. Dunham, his heirs, executors ad- ministrators and assigns, that at the time of the sealing and delivery of these presents, he, the said Asa C. Dun- ham, is seized in his own right of an absolute .and inde- feasible estate of inheritance in fee simple in the said several premises hereby granted, with the appurtenances, and hath good right, full power, and sufficient authority in the law to grant, bargain, sell, and convey the same to the said Azariah W. Dunham, his heirs and assigns, in 448 NOVEMBER TERM. 1855. Dunham c. Cox. manner aforesaid ; and that it shall and may be lawful for the said Azariah W. Dunham, his heirs and assigns, at all times for ever hereafter, peaceably and quietly to have, hold, use, occupy, possess and enjoy the said premises, with the appurtenances, and every part and parcel there- of,, without the lawful let, suit, action, interruption, or disturbance of the said party of the first part, their heirs and assigns, or any other person or persons whomsoever lawfully claiming or to claim the same ; and that the said premises are free and clear, and freely and clearly acquit- ted and discharged of and from all former mortgages, judg- ments, executions, and of and from all other encumbrances whatever. And lastly, that he, the said party of the first part, and his heirs all and singular, to said lot or par- cel of land, with the heriditaments and premises hereby granted, with the appurtenances, unto the said party of the second part, his heirs, and against him, the said party of the first part, and against all and every other person or persons whomsoever lawfully claiming or to claim the same, shall and will warrant and for ever defend." And which said deed was duly recorded in the clerk's office in the said county of Hunterdon, vol. 58, fol. 457, on the 24th day of September, in the year of our Lord one thousand eight hundred and thirty-four. The second conveyance, purporting to be for the con- sideration of five hundred dollars, is in the words and in substance following, to wit : " This indenture, made this sixteenth day of September, in the year of our Lord one thousand eight hundred and thirty-four, between Asa C. Dunham, of the township of Kingwood, in the county of Hunterdon, and state of New Jersey, party of the first part, and Nehemiah Dunham, of the county and state aforesaid, party of the second part, witnesseth, that the party of the first part, for and in con- sideration of the sum of five hundred dollars, good and lawful money of the United States, to him in hand well -and truly paid by the said party of the second part before. NOVEMBER TERM, 1855. 449 Dunham v. Cox. the sealing and delivery of these presents, the receipt whereof he doth hereby acknowledge, hath granted, bar- gained, sold, aliened, enfeoffed, released and confirmed, and by these presents doth grant, bargain, sell, alien, en- feoff, release, and confirm unto the said party of the second part, his heirs and assigns, all those five several lots, tracts, or parcels of land, situate in the county of Hunterdon aforesaid, herein after mentioned, that is to say : all those three lots of woodland situate in the town- ship of Bethlehem, in the county of Hunterdon aforesaid being part of the bog meadow tract, and called lots No. 7, 8, and 9, the said lot, No. 7, containing 9 acres and eighty-six hundredths of an acre, lot No. 8, containing nine acres and sixty hundredths of an acre, and lot No. 9, containing five acres and twenty-six hundredths of an acre. Also, all those two certain lots of land situate in Clinton, in the township of Bethlehem aforesaid, the first whereof, containing one acre and a half of land, more or less, con- veyed by Robert Foster, jiin., to John W. Bray and John B. Taylor, their heirs and assigns, by deed bearing date the fifth day of April, eighteen hundred and twenty-eight. The second of said lots, adjoining the first, and contain- ing eight-tenths of an acre of land, Samuel Crook and Elizabeth his wife, by indenture bearing date the twenty, ninth day of March, eighteen hundred and twenty-eight, granted and conveyed to the said John "W. Bray and John 13. Taylor, their heirs and assigns, in fee simple, which eaid five several lots, tracts, or parcels of land, the said John W. Bray and Mary his wife, and John B. Taylor and Susan A. his wife, by indenture bearing date the thirtieth day of June, in the year of our Lord eighteen hundred and thirty-four, granted and conveyed to the said Asa C. Dunham, his heirs and assigns, (as by refer- ence to the last mentioned conveyance will more fully ap- pear) excepting and reserving, however, out of the last mentioned two- lots of land certain parts or parcels of the said lots, respective! v, which have been heretofore con- 2 r* 450 COUET OF EEEOES AND APPEALS Dunham v. Cox. veyed to John Green and Israel Smith, and by the said Smith to James W. Hope, and now occupied by the said John Green and James W. Hope, the residue of the said two last mentioned lots, which is hereby intended to be conveyed to the said Nehemiah Dunham, containing, by estimation, one acre and seven-tenths of an acre of land, be the same more or less : together with all and singular the buildings, improvements, ways, woods, waters, water- courses, rights, liberties, privileges, hereditaments, and appurtenances to the same belonging or in any wise ap- pertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof, and of every part and parcel thereof ; and also all the estate, right, title, interest, use, possession, property, claim, and demand whatsoever, both in law and equity, of him, the said party of the first part, of, in, and to the said premises, with the appurtenances : to have and to hold the said lots or parcels of land, with the hereditaments and premises hereby granted, and every part and parcel thereof, with the appurtenances, unto the said party of the second part, his heirs and assigns, to the only proper use, benefit, and behoof of him, the said party of the second part, his heirs and assigns, for ever. And the said Asa C. Dunham, party aforesaid of the first part, for himself, his heirs, ex- ecutors, and administrators, doth hereby covenant, pro- mise, and grant, to and with Nehemiah Dunham, party of the second part, his heirs and assigns, that at the time of the sealing and delivery hereof, he, the said party of the first part, is seized in his own right of an absolute find indefeasible estate of inheritance, in fee simple of and in all and singular the premises hereby granted, with the appurtenances, and hath good right, full power, and suffi- cient authority in the law to grant, bargain, sell, and con- vey the same unto the said party of the second part, his heirs and assigns, for ever, according to the true intent and meaning of these presents. And also, that it shall and may be lawful for the said party of the second part, NOVEMBER TERM, 1855. 451 Dunham v. Cox. his heirs and assigns, at all times for ever hereafter, peace- ably and quietly to have, hold, use, occupy, possess, and enjoy the said premises, with the appurtenances, and every part and parcel thereof, without the lawful let, suit action, interruption, or disturbance of the said party of the first part, their heirs or assigns, or any other person or persons whomsoever lawfully claiming or to claim the same. And that the said premises are free and clear, and freely and clearly acquitted and discharged of and from all former mortgages, judgments, executions, and of and from all other encumbrances whatever. And lastly, that he, the said party of the first part, and his heirs all and singular, the said lots or parcels of land, with the here- ditaments and premises hereby granted, with the appur- tenances, unto the said party of the second part, his heirs, and against him the said party of the first part, and against all arid every other person or persons whomsoever law- fully claiming or to claim the same, shall and will warrant and for ever defend." And which said deed was duly recorded in the clerk's office in the said county of Hunterdon, in vol. 58, fol. 463, on the twenty-fourth day of September, one thousand eight hundred and thirty-four. The third conveyance, purporting to be for the consider- ation of two thousand six hundred and thirty-four dollars and forty-four cents, and is in the substance following, to wit : " This indenture, made this thirtieth day of June, in the year of our Lord one thousand eight hundred and thirty-four, between John W. Bray and Mary his wife and John B. Taylor and Susan Adeline his wife, all of Clin- ton, in the township of Lebanon, county of Hunterdon, and state of New Jersey, party of the first part, and Asa C. Dunham, of the township of Bethlehem, in the county and state aforesaid, party of the second part, witnesscth, that the party of the first part, for and in consideration of the sum of two thousand six hundred and thirty-four dol- 452 COUET OF EKROES AND APPEALS. Dunham v. Cox. . lars and forty-four cents, lawful money of the United States, to them in hand well and truly paid by the said party of the second part, before the sealing and delivery of these presents, the receipt whereof they do hereby ac- knowledge, have granted, bargained, sold, aliened, en- feoffed, released, and confirmed, and by these presents do grant, bargain, sell, alien, enfeoff, release, and confirm, unto the said party of the first part, his heirs and assigns, all those six several lots or parcels of land, situate in the county of Hunterdon aforesaid, herein after mentioned, that is to say : all that tract of land, situate in the town- v t ship of Lebanon aforesaid, adjoining and bounded by lands of David (late Moses) Sharp, the heirs of John J. Lowe, deceased, the heirs of Jacob Kunkle, deceased, John Emery, Joseph Fritts (late John W. Bray), and others, containing seventy-seven acres, more or less, being the same land which John J. Lowe and wife, by deed, bearing date the fifteenth day of April, A. D. eighteen hundred and twenty-six, and recorded in the record of deeds for the county of Hunterdon, in vol. 41, pages 149, &c., conveyed to the said John W. Bray, his heirs and as- signs, in fee simple. Also, all those three lots of wood- land, situate in the township of Bethlehem, and county of Hunterdon aforesaid, being part of the bog meadow tract, and called lots Nos. 7, 8, and 9, the said lot, No. 7, con- taining nine acres and eighty-six hundredths of an acre, lot No. 8 containing nine acres and sixty hundredths of an acre, and lot No. 9 containing five acres and twenty- six hundredths of an acre, being the same three lots of land which William Hum, by indenture bearing date the third day of April, A. D., eighteen hundred and twenty eight, and recorded in the record of deeds for Hunterdon county, vol. 45, pages 42, &c., conveyed to the said John "W. Bray and John B. Taylor, their heirs and assigns, in fee simple. Also, all those two certain lots of land, situ- ate at Clinton, in the township of Bethlehem aforesaid, the first whereof, containing one acre and a half of land, NOVEMBER TERM, 1855. 453 Dunham v. Cox. more or less, Robert Foster, jun., by indenture bearing date the fifth day of April, A. D. eighteen hundred and twenty-eight, and recorded in the record of deeds for the county of Hunterdon, in vol. 49, fol. 254, &c., conveyed to the said John W. Bray and John B. Taylor, their heirs and assigns in fee simple, the second of which said lots, adjoining the first, and containing eight-tenths of an acre, Samuel Crooks and Elizabeth his wife, by indenture bear- ing date the twenty-ninth day of March, A. D. eighteen hundred and twenty-eight, and recorded in the record of deeds for the county of Hunterdon, in vol. 45, fol. 44, &e., conveyed to the said John "W". Bray and John B. Taylor, their heirs and assigns, in fee simple (as by reference to the said several conveyances will appear), excepting and reserving, however, out of the said two last mentioned lots, of land certain parts or parcels of the said lots, re- spectively, which have been heretofore conveyed to John Green and to Israel Smith, and by the said Smith to James "W". Hope, and are now occupied by John Green and James "W. Hope ; the residue of the said two last mentioned lots, which is hereby intended to be conveyed to the said Asa C. Dunham, containing, by estimation, one acre and seven-tenths of an acre, be the same more or less. : to- gether with all and singular the buildings, improvements, ways, w r oods, waters, watercourses, rights, liberties, privi- leges, hereditaments, and appurtenances to the same be- longing or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof, and of every part and parcel thereof ; and also all the estate, right, title, interest, use, possess- sion, property claim, and demand whatsoever, botli in law and in equity, of him, the said party of the first part, of, in, and to the said premises, with the appurtenances : to have and to hold the said lots or parcels of land, with the heriditaments and premises hereby granted, and every part and parcel thereof, with the appurtenances, unto the said party of the second part, his heirs and assigns, to the 454 COUKT OF EEEOES AND APPEALS. Dunham v. Cox. only proper use, benefit, and behoof of him, the said party of the second part, his heirs and assigns for ever. And the said John W. Bray and John B. Taylor, parties of the first .part, for themselves, their heirs, executors and ad- ministrators, do hereby covenant, promise, and grant, to and with the said Asa C. Dunham, party of the second part, his heirs and assigns, that at the time of the sealing and delivery hereof they, the said parties of the first part, are seized in their own right of an absolute and indefeasi- ble estate of inheritance of fee simple of and in all and singular the premises hereby granted, with the appurte- nances, and have good right, full power, and sufficient authority in the law to grant, bargain, sell, and convey the same unto the said party of the second part, his heirs and assigns, for ever, to the true intent and meaning of these presents. And also, that it shall and may be lawful for the said party of the second part, his heirs and assigns, at all times for ever hereafter, peaceably and quietly to have, hold, use, occupy, possess, and enjoy the said pre- mises, with the appurtenances, and every part and parcel thereof, without the lawful let, suit, eviction, interruption, or disturbance of the said parties of the first part, their heirs and assigns, and any other person or persons whom- soever lawfully claiming or to claim the same ; and that the said premises are free and clear, and freely and clearly acquitted and discharged of and from all former mort- gages, judgments, executions, and of and from all other encumbrances whatever. And lastly, that they, the said parties of the first part, and their heirs all and singular, the lots or parcels of land, with the hereditaments and premises hereby granted, with the appurtenances, unto the said party of the second part, his heirs, and against them, the said parties of the first part, and against all and every other person or persons whomsoever lawfully claim- ing or to claim the same, will warrant and for ever de- fend." Which said deed was duly acknowledged by the said NOVEMBER. TEEM, 1855. 455 Dunham u. Cox. John "W. Bray and wife, and John B. Taylor and wife, be- fore Nathaniel Saxton, esquire, one of the masters of the Court of Chancery of New Jersey, on the thirtieth day of June, eighteen hundred and thirty-four, and duly recorded in the clerk's office of the said county of Ilunterdon, in vol. 58 of deeds, fol. 675, on the twenty-fourth day of Sep- tember, eighteen hundred and thirty -four. The fourth conveyance, purporting to be for the con- sideration of eight hundred dollars, is in substance as fol- lows : " This indenture, made this seventeenth day of October, in the year of our Lord one thousand eight hundred and thirty-four, between Asa C. Dunham, of the township of Kingwood, in the county of Ilunterdon, and state of New Jersey, party of the first part, and Azariah W. Dunham, of the township of Bethlehem, in the county of Ilunter- don, and state of New Jersey aforesaid, party of the second part : witnesseth, that the party of the first part, for and in consideration of the sum of eight hundred dollars, good and lawful money of the United States, to him in hand, well and truly paid by the said party of the second part, before the sealing and delivery of these presents, the receipt whereof they do hereby acknowledge, hath granted, bargained, sold, aliened, enfeoffed, released, and con- firmed, and by these presents doth grant, bargain, sell, alien, enfeoff, release, and confirm unto the said party of the second part, his heirs and assigns, all that certain lot or parcel of land situate, lying, and being in the township of Lebanon, in the county of Kunterdon, and state of New Jersey aforesaid, and is bounded and described as follows, that is to say, by land of David (late Moses) Sharp, the heii*s of John J. Lowe, deceased ; the heirs of Jacob Hankie, deceased ; John Emery, Joseph Fritts (late John AV. Bray), and others, containing seventy-seven acres of land, be the same more or less, being the same lot or parcel of land which John J. Lowe and wife granted and conveyed to John AV. Bray and Mary his wife, and John 456 COUKT OF EEKOES AND APPEALS. Dunham v. Cox. B. Taylor and Susan Adeline, his wife, granted and con- veyed to the said Asa C. Dunham, by deed bearing date the thirtieth day of June, in the year of our Lord one thousand eight hundred and thirty-four, and recorded in record of deeds for the county of Hunterdon, in vol. 58 of deeds, pages 465, 6, 7 and 8, reference being thereunto had will more fully appear; together with all and singular the buildings, improvements, ways, waters, watercourses, rights, liberties, privileges, hereditaments, and appurte- nances to the same belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof, and of every part and parcel thereof. And also, all the estate, right, title, interest, use, possession, property, claim, and demand whatsoever, both in law and in equity, of him, the said party of the first part, of, in, and to the said premises, with the appurtenances : to have and to hold the said lot or parcel of land, with the hereditaments and premises hereby granted, and every part and parcel thereof, with the appurtenances, unto the said party of the second part, his heirs and assigns, to the only proper use, benefit, and behoof of him, the said party of the second part, his heirs and assigns, for ever. And the said Asa C. Dunham, party aforesaid of the first part, for himself, his heirs, executors, and administrators, doth hereby covenant, promise, and grant, to and with the said Nehemiah Dunham, party of < the second part, his heirs and assigns, that at the time of the sealing and delivery hereof, he, the said party of the first part, is seized in his own right of an absolute and indefeasible estate of inheritance in fee simple, of and in all and singular the premises hereby granted, with the ap- purtenances, and hath good right, full power, and sufficient authority in the law to grant, bargain, sell, and convey the same unto the said party of the second part, ,his heirs and assigns for ever, according to the true intent and meaning of these presents.. And also, that it shall and may be lawful for the said party of the second part, NOVEMBER TEEM, 1855. 457 Dunham v. Cox. his heirs and assigns, at all times for ever hereafter, peace- ably and quietly to have, hold, use, occupy, possess, and enjoy the said premises, with the appurtenances, and every part and parcel thereof, without the lawful let, suit, evic- tion, interruption, or disturbance of the said party of the first part, their heirs and assigns, or any person or persons whomsoever lawfully claiming or to claim the same. And that the said premises are free and clear, and freely and clearly acquitted and discharged of and from all former mortgages, judgments, executions, and of and from all other encumbrances whatsoever. And lastly, that he, the said party of the first part, and his heirs all and singular, the said lot or parcel of land, with the hereditaments and premises hereby granted, with the appurtenances, unto the said party of the second part, his heirs and assigns, and against him, the said party of the first part, and against all and every other person and persons whomso- ever lawfully claiming or to claim the same, shall and will warrant and for ever defend." And which said deed was afterwards, to wit on the 18th of October, 1834, recorded in the record of deeds in the clerk's office in the said connty of Hunterdon, reference being had to said four several deeds of conveyance re- maining of record in said county of Hunterdon, and to which, or to certified copies thereof, your orator begs leave to refer, if it should be necessary for him so to do. And your orator further shows unto your honor, that he has been informed, and believes it to be true, and so charges, that in the yearone thousand eight hundred and thirty-four, or about that time, the said Asa C. Dunham was security for one John "W. Bray and John B. Taylor for about the sum of two thousand five hundred dollars, including a part of the above mentioned claim of your orator, and that, in order to indemnify and save harmless the said Asa C. Dunham, and enable him to pay and satisfy the paid security debts, as well to your orator aft others, the said John "NV. Bray and John B. Taylor and VOL. n. 2 Q 458 COUKT OF ERRORS AND APPEALS. Dunham r. Cox. wives afterwards, to wit, on the thirtieth day of June, eighteen hundred and thirty-four, made, executed, and de- livered to the said Asa C. Dunham their certain deed of indenture, in the words, figures, and in substance herein before mentioned and set forth. And your orator further shows unto your honor, that he has been credibly informed, and believes that the said Asa C. Dunham never paid any of the said security debts of the said John W. Bray and John B. Taylor out of the proceeds arising from the sale of the said lands so con- veyed by them to the said Asa C. Dunham, but, on the contrary, afterwards, to wit, on the sixteenth day of Sep- tember, in the year of our Lord one thousand eight hun- dred and thirty-four, fraudulently and without any con- sideration having been actually paid, sold and conveyed a part of the same to the said Nehemiah Dunham, and the residue thereof to the said Azariah "W. Dunham, who holds the same for the use, benefit, and advantage of the said Asa C. Dunham, and in order to defraud your orator and others, the creditors of the said Asa C. Dunham, and to prevent and hinder him and them from recovering their just and honest claims against the said Asa C. Dunham. And your orator further shows unto your honor, that he has been informed, and verily believes, and so charges, that notwithstanding the said sale of the said personal property, and the said deeds of conveyance for the said real property, by the said Asa to the said Azariah and ~N"e- hemiah, herein before mentioned and described, yet that the said Asa has ever since remained in and had the ac- tual use, control, and possession of the whole of the said property, real and personal, receiving and enjoying the rents, income, proceeds, and profits thereof. And your orator further shows unto your honor, that he has frequently and in a friendly manner applied to the said Asa C. Dunham, Azariali W. Dunham, and ]S"ehe- miah Dunham for the payment of his said judgment, and that they should deliver into the hands of the said sheriff NOVEMBEK TEEM, 1855. 459 Dunham r. Cox. of the county of Hunterdon the said real and personal property so fraudulently assigned and passed over by the said Asa C. Dunham to the said Azariah "W. Dunham and Nehemiah Dunham, by them now held and claimed, and that the said Azariah W. Dunham and Nehemiah Dunham shouH permit the said sale, transfer, and conveyance to be declared null and void, and the said real and personal pro- perty to be sold to satisfy the said claim and judgment of your orator, as in equity and good conscience they ought to have done, and as your orator well hoped they would have done. But now so it is, may it please your honor, the said Asa C. Dunham, Azariah "W. Dunham, and Nehemiah Dunham (brothers), combining and confederating with 'other persons at present unknown to your orator, but whose names, when discovered, your orator prays may be inserted herein, with proper and apt words to charge them as parties defendants hereto, contriving how to op- press, injure, and aggrieve your orator in the premises, wholly neglect and refuse to pay the said judgment, or to deliver into the possession of the said sheriff the said real and personal property, or to allow the said convey- ances to be set aside as null and void, and have and do absolutely and unlawfully oppose the execution of the said writ o fieri facias in the hands of the said Garret Servis, sheriff as aforesaid, and threatened to prosecute him should he make sale of the same. And sometimes thrsy give out and pretend that the said judgment was nover obtained as aforesaid ; and sometimes they give ot and pretend that the said judgment and claim of your orator has been paid off and satisfied ; and sometimes they give out and pretend that the said real and personal property was not transferred by the said Asa to the said Azariah and Nehemiah as aforesaid, and that the same has not been in the use, occupation, and possession of the said Asa since the time of the said sale. And sometimes they pretend that they have not hindered or prevented 460 COURT OF EEEOES AND APPEALS. Dunham v. Cox. the said sheriff in the proper execution of the said writ of fieri facias, the contrary of all which your orator charges to be true. All which actings and doings of the said Asa C. Dun- ham, Azariah W. Dunham, and Kehemiah Dunham, are contrary to equity and good conscience, and tend to the manifest injury and oppression of your orator. In tender consideration whereof, and for inasmuch a& your orator is remediless in the premises at the common law, and cannot have adequate relief except by the aid and interposition of this honorable court, where matters of this kind and of like nature are properly and only cogniz- able and relievable To the end, therefore, that the said Asa C. Dunham, Azariah W. Dunham, and Nehemiah Dunham, and their confederates, when discovered, may, upon their several and respective corporal oaths, full, true, and perfect an- swers make to all and singular the matters and things be- fore stated and charged, as fully and particularly, sentence by sentence, and paragraph by paragraph, as if they were particularly interrogated, with all the attending circum- stances and incidental transactions, and not only to the best of their knowledge and remembrance, respectively, but also according to the best of their understanding, in- formation, hearsay, and belief, severally and respectively ; and more especially that they may answer, set forth, and particularly describe all the personal property belonging to the said Asa C. Dunham at any time between the first day of January, eighteen hundred and thirty- four, and the present time, to wit, the third day of April, eighteen hun- dred and fifty, and the true value thereof ; and if sold and disposed of, to whom the same was so sold and disposed of, and when, for what consideration, and whether the consideration money has been paid or still remains due ancl owing to the said Asa C. Dunham, and if paid to the said Asa 0. Dunham, whether the same was by him ap- plied to the payment and satisfaction of his debts, or for NOVEMBER TERM, 1855. 461 Dunham v. Cox. what purpose it was used, and how disposed of ; and whether, in the year one thousand eight hundred and thirty-four, or some other time, and when, a part of said personal property, and what part, was not, in some way or manner, placed in- the hands of the said Azariah W. Dunham and Nehemiah Dunham, or one of them, in trust or in some other way, for the use and benefit of the said Asa, and whether he has not since that time enjoyed and received the use, benefit, and advantage of the same. And that they may answer, set forth, and discover the real estate belonging to the said Asa C. Dunham, and by him conveyed to the said Azariah "W. Dunham and Ne- hemiah Dunham, as. hereinbefore mentioned, and what disposition has been made of the same, and every part thereof, and when such disposition was made, fully and particularly, and in whose possession the said real estate has been since the first day of September, eighteen hun- dred and thirty-four, and the amount and value of the same'; and whether the said Asa C. Dunham did make any conveyance or conveyances of the said real estate to the said Azariah "W. Dunham and Nehemiah Dunham, or either of them, and what was the true and actual conside- ration paid, to whom, when, and in what manner ; and whether any part still remains unpaid, how much, to whom, and how, whether by bill, bond, note, or other- wise, and when the same is or will be due and payable. And that the said Asa, Azariah "W., and Nehemiah may set out and annex to their answer a copy of every deed, writing, lease, contract, bargain or agreement incident to the sale, use, occupation, and possession of the said real estate between them, and who has enjoyed, used, and occupied and received the rents and profits of the said real estate since the sixteenth day of September, eighteen hundred and thirty-four, and may also set forth for what purpose and object, at whose instance and advice, the said sales of the real estate were made ; that the said Asa may set out the several offers he had for the said real 2Q* 162 COURT OF ERRORS AND APPEALS. Dunham v. Cox. estate, when and from whom ; and may set out and dis- cover the reasons, fully and particularly, why he sold and conveyed the said real and personal estate to the said Aza- riah W. Dunham and Nehemiah Dunham, and to each of them, his brothers ; when the said* bargains were first begun, and when finally concluded between them, the said Asa and Azariah and Nehemiah, and who was pre- sent at such bargain and sale ; and whether the said Asa has not, since the year one thousand eight hundred and thirty-four, rented out said real estate, or the greater part thereof, and what part, to whom, and on what terms ; and whether he has not had an equal or some other portion, and what portion, of the said rents and profits. And that the said Azariah "W. Dunham and Nehemiah Dunham may set forth and answer whether they have reconveyed the said real estate or any part thereof, to the said Asa C. Dunham, or to any other person for him or for his use and benefit, and when the same was done, for what con- sideration, when and how paid or secured, or whether they, the said Azariah W. Dunham and Nehemiah Dun- ham, still hold and claim the same as their own in fee simple ; and whether the said real estate has been encum- bered by judgment, mortgage or otherwise, and, if so, when, to whom, and for what amount the same has been encumbered, and whether the said John W. Bray and wife and John B. Taylor and wife did not make the con- veyance (above set forth and described) to the said Asa C. Dunham at the time or some other time, and when, and for the purpose of enabling him to pay your orator and others, as herein before mentioned, or for some other purpose and what ; and whether the said Asa C. Dunham has, in pursuance thereof, paid any of the said creditors, and, if so, state their names, amounts paid, and when paid ; or whether the said Nehemiah and Azariah "W. still iold the said lands and premises so conveyed by the said J ohn "W": Bray and John B. Taylor in trust for the said wsa, or for your orator, or for whom they still hold the J NOVEMBER TERM, 1S55. 463 Dunham v. Cox. same. And that the said Asa C. Dunham, Azariah W. Dunham, and Nehemiah Dunham may set out in full every agreement, bargain, instrument, sale, or other trans- action relating to the said real and personal estate, whether between the said Asa C. Dunham, Azariah W. Dunham, and Nehemiah Dunham, or between either or all three of them, or some other person or persons at present unknown to your orator, clearly, explicitly, and directly, as if the same was herein set> forth, and they interrogated there- unto ; and that the said defendants, Asa C. Dunham, Aza- riah W. Dunham, and Nehemiah Dunham, or some of them, may be decreed to pay to your orator the amount of his said judgment, interest, and costs, and that the said fraudulent conveyances and sales be set aside and declared void, and the said real and personal property be sold, and the proceeds, or so much thereof as may be ne- cessary, be appropriated to the payment of your orator's said claim. That the said defendants account for the rents, issues, and profits of the said real estate and for the proceeds of the sales of said personal estate by them, or any of them, heretofore made, or that may hereafter be made ; and that your orator may have such further and other relief as the nature of his case may require and as to your honor shall seem meet. May it please your honor, the premises considered, to grant to your orator the state's writ of subpoana, issuing out of and under the seal of this honorable court, to be directed to the said Asa C. Dunham, Azariah "W. Dun- ham, and Nehemiah Dunham, therein and thereby com- manding them, and each of them, on a certain day nid under a certain penalty, therein to be specified, to be and appear before your honor, in this honorable court, then and there to answer all and singular the premises con- tained in this your orator's bill of complaint, and to stand to and abide such order and decree in the premises as shall seem meet and agreeable to equity and good conscience. And your orator will ever pray, e stated from which, at least, the inference may be drawn, tliat the aid of a court of equity is required to give the judgment its legal and full effect. But this bill, so far from stating facts to justify such an 468 COURT OF ERRORS AND APPEALS. Dunham v. Cox. inference, the contrary legitimately flows from such facts as are stated. The bill, it is true, alleges that the defend- ant has conveyed away certain real and personal property for the purpose of defrauding the complainant. It does not specify the personal property any further " than as sundry goods and chattels." It describes particularly the real estate so alleged to have been disposed of. If the bill had stopped here, even without alleging that the defend- ants had no other property out of which the judgment might be satisfied, the complainant might be entitled to the aid of the court from the allegation, that this property had been disposed of, by the defendant for the purpose of defrauding his creditor. But the bill further shows that, by an execution taken out upon the judgment, certain other personal property, in the possession of the defendant, was levied upon by the sheriff. It is true the value of the property is not given ; but the very character of this personal estate is such as shows its value to exceed the amount due upon the judgment. The bill does not pretend that this pro- perty was ever disposed of by the defendant, or that any legal hinderance or impediment has been placed in the way of the sheriff's appropriating it to the payment of the exe- cution in his hands. The bill does not stop here. It shows that the sheriff, by his execution, levied upon nine distinct tracts of land as the property of the defendant. It does not show that there is any encumbrance upon this land, nor give any reason why the sheriff has not sold it to satisfy the judg- ment and execution. Suppose, then, the allegations of the bill to be true with regard to the other personal and real estate of the judgment debtor, that he has fraudulently conveyed it for the purpose of defeating this judgment, if he is still in possession and is the owner of property enough to sat- isfy the judgment, and which has been levied upon, and is at the legal disposal of the sheriff for the purpose, the NOVEMBEK TEEM, 1855. 469 Sheridan v. Medara. assistance of a court of equity is not necessary to aid the complainant in *his legal remedy to obtain satisfaction of his judgment. This is the only ground upon which the jurisdiction of a court of equity can be invoked ; and as the complainant does not show that he stands upon this ground, he cannot maintain his bill. The bill is radically defective. Admitting all its facts to be true, it cannot be maintained. The demurrer is therefore well taken, and the decree of the Chancellor overruling the demurrer must be reversed with costs. Decision reversed by the following vote : For affirmance None. For reversal CHIEF JUSTICE, Judges ARROWSMITH, COR- NELISON, HAINES, HUYLER, POTTS, RISLEY, VALENTINE, VRB- DENBUKGH, WILLIAMSON, WILLS. CITED in Mittnight v. Smith, 2 C. E. Gr. 262; Bigelow Blue Stone Co. v. Magee, 12 C. E. Gr. 393. Between ABRAHAM SHERIDAN et al., appellants, and JOSEPH T. MEDARA et al., respondents. A participation in tho profits of business constitutes a partnership as to third persons: so where the evidence in the cause showed to a reasonable degree of certainty that one was to share in tho profits of a business carried on in the name of another, it established the partnership. Although the business be carried on in the name of one alone, and neither suppose that they are partners, although they did not intend to become partners, and, as between themselves, were not partners, yet the law may hold them liable as jwrtners as to third persons upon an agreement to share in the profits. Where money was loaned at six per cent., but in case the debtor's business succeeded, he was to pay twenty-five per cent., such contract, though usurious as to tho borrower, as to third persons made tho debtor and creditor partners. The objection to a witness on the ground of incompcteney on account of his being a partner, not made until after the direct examination, is not well taken in point of time. A party cannot speculate by waiting to discover VOL. n. 2 K 470 COUKT OF ERRORS AND APPEALS. Sheridan v. Medara. whether the testimony of a witness fs favorable or unfavorable, and then interpose his objection at pleasure. WILLIAMSON, C. This cause was argued in the Court of Chancery, in the term of February, 1855, by Mercer Beasley, solicitor and of counsel with complainants, and Isaac W. Lanning, solicitor and of counsel with defendants. The bill alleges, that one John P. Combs, of the city of Trenton, in the state of New Jersey, being indebted to complainants in the sum of one hundred and seventy-six dollars and thirty-three cents, for certain goods and mer- chandise sold and delivered by them to him, they, on the twenty-fourth day of September, in the year of our Lord one thousand eight hundred and fifty-three, obtained a judgment against the said John P. Combs for the said amount, together with the sum of four dollars, costs of suit, in an action of debt in the Mercer County Circuit Court, and thereupon, on the same day, caused an execu- tion to be issued to the sheriff of the county of Mercer aforesaid, commanding him to levy and make the said debt and costs out of the goods and chattels of the said John P. Combs in his county, and also to do certain other things in the said writ set forth ; that on the twenty-fourth day of September aforesaid, and for a considerable period before, the said John P. Combs was in the possession of a certain stock of ready-made clothing, of about the value of twelve hundred dollars, and which said stock was de- posited in a store in Greene street, in the city of Trenton, in which the said Combs had been carrying on business as a retailer of articles of ready-made clothing ; that the sheriff of the said county of Mercer, to whom complain- ants' execution was delivered as aforesaid, levied the same on the said stock of clothing, on or about the date of the said judgment, and made an inventory of the said stock, and attached it to the said execution, as will more fully appear by the said writ of execution and the said inven- tory, &c., '-hat they have discovered that the said stock of goods was, at the time of the said levy being made, as NOVEMBER TEEM, 1855. 471 Sheridan v. Medara. above stated in their behalf by the said sheriff, subject to a certain execution and levy, and which said last men- tioned execution had been issued out of the Supreme Court of the state of New Jersey, and was founded on a judg- ment entered on the twenty-first day of September, in the year of our Lord one thousand eight hundred and fifty- three, in favor of one Abraham Sheridan against the said John P. Combs for the sum of seventeen hundred and two dollars and fifty-four cents debt, and the sum of four dollars costs of suit, the said judgment being entered on a certain ~bond, bearing date the day and year aforesaid, in the penalty of the said sum of debt aforesaid, and con- ditional for the payment, on demand, of the sum of eight hundred and fifty-one dollars and seventy-seven cents, given by the said John P. Combs to the said Abraham Sheridan ; that the same goods and chattels are levied on by virtue of the execution last aforesaid as are levied on by virtue of the execution issued on the judgment of your orators, and if the same be a valid lien, it is in all respects prior and superior to that of your orators ; that the said sheriff, by force of and in obedience to the command of the said execution issued on the judgment in favor of the said Abraham Sheridan, has advertised according to law the said stock of goods for sale on the twenty-ninth day of September, instant, and complainants believe it is his intention to sell on that day ; that if the said sale takes place, and the proceeds thereof shall be applied, after re- serving to the said John P. Combs, who is a debtor, having a family resident in this state, such portion of the said stock as the laws of this state exempts to the payment of the judgment of the said Sheridan, there will be left little or nothing to be appropriated to the satisfaction of the said judgment debt ; that the said John P. Combs has no other property, cither real or personal, out of which the said sums of money due and unpaid on the judgment of your orators can be levied and made, either in whole or in part, and they further believe that the said John P. 472 COUET OF ERRORS AND APPEALS. Sheridan v. Medara. Combs is altogether insolvent ; that from the information acquired by them, they have reason to believe, and do believe, and therefore charge, that the said judgment above referred to, entered by the said Abraham Sheridan in the said Supreme Court, is altogether fraudulent and void, as against them and the other creditors of the said John P. Combs, and they show, to justify this belief, and charge the following facts : that on or about the of , in the year of our Lord one thousand eight hundred and fifty , the said Abraham Sheridan entered into an ar- rangement with the said John P. Combs to this effect : that they should enter into the business of retailing ready- made clothing in the city of Trenton, and that he, the said Sheridan would find and put in the stock, or the greater part thereof, but should give no personal attention to the said business, neither should his name appear as a party in interest therein ; and in lieu of said advance on the part of the said Sheridan, he, the said John P. Combs, should give his whole time and personal attendance in selling out and retailing the said clothing, the profits to be divided in certain proportions (but in what precise ratio they have not been able to discover) between the two ; that upon this agreement, or some other agreement substantially similar, the said Abraham Sheridan and the said John P. Combs entered on the said business, and car- ried the same on in conformity to said agreement, or with slight variations therefrom, until the entering up of the said judgment in favor of the said Sheridan against the said Combs ; that from the time of entering upon the said busi- ness to the cessation thereof, as above stated, the said Abra- ham Sheridan received his share of the profits of the said joint business, in accordance with his stipulation to that ef- fect ; that on the said twenty-first day of September, instant, or about that time, the said Abraham Sheridan, under the belief that his connection with the said business was un- known, persuaded and procured the said John P. Combs to execute to him the said bond, in the penalty of seven- NOYEMBEK TEEM, 1855. 473 Sheridan v. Medara. teen hundred and three dollars and fifty-four cents, con- ditioned for the payment of the sum of eight hundred and fifty-one dollars and seventy-seven cents on demand, together with a warrant of attorney to enter up judgment thereon, but the only consideration for said bond was, as complainants have been informed and believe, the sum of money which the said stock, or some portion of it, origi- nally cost, and which was purchased as aforesaid by the said Sheridan, as his venture in the said business, and that even this sum, for which the judgment bond was given, was more than the said Sheridan had put into said concern ; that besides his share of the profits of the said business, the said Abraham Sheridan has now in his hands the sum of three hundred and thirty-five dollars, which is part of the earnings of the said partnership, and which the said Abraham Sheridan received from his said part- ner, John P. Combs, for the purpose of paying off some of the debts due from the said partnership, but which he now refuses to appropriate in that way, but holds the same as his own money ; that the said Abraham Sheridan, with great care and contrivance, kept secret his connection with the said business, holding out the idea that the said John P. Combs was solely interested and engaged therein, and that although he knew the said Combs was altogether irresponsible in a pecuniary point of view, he always held out to the public, and particularly to the merchants in Phil- adelphia, that he, said Combs, had property, and could be safely credited. The bill charges that the said judgment entered up on the said bond and warrant of attorney by the said Abra- ham Sheridan against the said John P. Comb.s is void, as against the judgment lien of your orators, and should be Bet aside, or at all events postponed to said lien. The prayer of the bill is as follows : and that the said judgment of said Sheridan against said John P. Combs may be set aside or postponed to that of your orators, or that your orators' judgment may be paid out of the said 2u* 474 COURT OF ERRORS AND APPEALS. Sheridan v. Medara. money in the bands of the said Abraham Sheridan, and that a writ of injunction may be issued out of this honor- able court, directed to said sheriff of the said county of Mercer, the said William Boswell, enjoining him from paying over the proceeds of the sale of the said stock, or any part thereof, to the said Abraham Sheridan, or to any one in his behalf, and commanding him to retain the same in his hands until the further order of this court in the premises, and that the moneys due on the said judgment of your orators may be ordered to be first paid out of the said moneys, and for further relief. At the term of May, 1855, a decree was made in favor of the complainant. From this decree an appeal was taken. The Chancellor furnished the court with the fol- lowing opinion, as containing the reasons for his decree. WILLIAMSON, C. The question is, whether Sheridan was a partner of John P. Combs ? If he was, then the judgment confessed by Combs to Sheridan was fraudulent as against the complainants, who are subsequent judg- ment creditors. It makes no difference as to the rights of the complainants in respect to the judgment of Sheri- dan, that the complainants' judgment is against Combs alone. They are not concluded by this fact from showing that Sheridan was a partner. It is true they contracted their debt with Combs, and obtained judgment against him alone. The complainants allege, that when they ob- tained their judgment, they were not aware of the fact of Sheridan's connection in business with Combs. Sheridan now denies that he was a partner. He procured Combs to confess a judgment to him for advances he alleges he had advanced in the business. If he was a partner, he has no right to appropriate the partnership property to satisfy his judgment to the exclusion of other creditors : it is a fraud upon them to permit him to do so. The partnership is proved by Combs and by H. B. Hutchins. If they are competent witnesses, and their testimony entitled to credit, then Sheridan was a partner, NOVEMBER TERM, 1855. 475 Sheridan v. Medara. and his judgment must be postponed to that of the com- plainants. Their competency is objected to. I think they are both competent witnesses. The objection to Combs is on ac- count of his being a partner. The objection was not well taken in point of time. It was not made until after the direct examination. A party cannot speculate by waiting to discover whether the testimony of a witness is favorable or unfavorable, and then interposes his objection at pleasure. He is bound to make his objection as soon as he is made acquainted with the position of the witness. In this case the defendant knew the position of the witness, as to interest, when he was first put upon the stand. The bill was filed on the ground that Combs and Sheridan were partners. This was the foundation of the suit, and yet the defendant reserved his objection until the com- plainants had closed with the witness. It was then too late to make the objection. But Combs has no interest. Sheridan has a judgment against Combs, and so has the complainants. They are both confessed judgments. Combs cannot question either of them. Both parties are his judgmeut creditors, and the only question involved in this controversy is as to the priority of the judgments. It can make no difference to Combs, whatever may be the result of this suit. One of the judgments will be reduced by the application of his property, and it cannot affect his liability or interest in any way as to which of the two judgments such application is made. Hutchins testifies that he was a partner also, and he is objected to on that account. The objection to this witness was also made too late. I cannot, however, see how he is interested in the result in this case. It can make no difference to him which judgment takes the property. Are these witnesses credible? Their general character is not impeached. It is said that the facts they state are contradicted by other credible witnesses. It is true Combs is contradicted in some particulars. It is proved that he 4T6 COURT OF ERRORS AND APPEALS. Sheridan v. Medara. represented himself as alone interested in the business, and denied that Sheridan was a partner ; but these repre- sentations, are consistent with his whole story. He says that it was the agreement that Sheridan was not to be known as a partner, and that the representations made by him were made at the particular request of Sheridan. He is corroborated by Hutchins and by many circumstances in the case. I do not feel justified in throwing out the testimony of these witnesses. Hutchins is not contra- dicted on any material matter. Both witnesses state facts establishing beyond a doubt that Sheridan was a partner. From the very character of the dealings of the parties, they alone were cognizant of those facts. It is not one single fact to which they testify, but to particulars of various kinds going to establish the point in controversy. These men are well known in the community; they are men of business; they have had large dealings in the community. It can hardly be credited that they could manufacture the story they have told, unless they are men utterly destitute of moral principle, and yet their general character for truth and varacity has not been impeached. I have no right to discredit them ; and, as I said before, relying upon their evidence, the complainants have proved their case beyond a doubt. I am of opinion that the complainants have established the case made by their bill, and that their judgment is en- titled to priority, the complainants' cost of this suit to be first paid out of the fund. The appeal was argued at November term, 1855, by W. Hoisted, for the appellant. M. Beasley, for respondents. The opinion of the court was delivered at the same term, by NOVEMBER TERM, 1855. 477 Sheridan v. Medara. GREEN, C. J. The only point relied upon by the appel- lant for reversal in this case is, that the partnership alleged in the bill to exist between Combs, the defendant in execution, and Sheridan, the appellant, is not sufficiently proved. The rule, that a participation in the profits of business constitutes a partnership as to third persons, is not ques- tioned. The only inquiry is, does the evidence in the cause show to a reasonable degree of certainty that Sheridan was to share in the profits of the business carried on in the name of John P. Combs. If it does, the partnership is established. The fact is expressly sworn to by two wit- nesses, called on the part of the defendant. The competency of these witnesses is not denied. It is insisted, however, that their credibility is impeached by facts stated by them- selves and proved by other witnesses. The fact mainly relied on as impeaching the credibility of Combs is, that he repeatedly stated during the continu- ance of the business, that he was carrying it on alone, and that Sheridan was not a partner. But that fact is perfectly consistent with the integrity and veracity of the witrtess. There was no agreement for a partnership between the parties. The contract in form was a loan of money. Combs was a borrower. Sheridan was a lender. He held a judgment bond for every dollar advanced by him. The business was carried on in the name of Combs. Probably neither Combs nor Sheridan supposed they were partners. They did not intend to become partners ; as between them- selves, they were not partners. The law, indeed, holds them liable as partners to third persons, upon an agreement to share in the profits. But that is a legal consequence uf the contract, of which both partners may well have been, and of which Combs swears that he was entirely ignorant. His saying, therefore, that Sheridan was not his partner, and that he was carrying on business on his own account, ought not to be regarded as any impeachment of his char acter for veracity. 478 COUKT OF ERKOES AXD APPEALS. Sheridan v. Medara. It is said again, that his evidence was prompted by malevolence. He may, and probably did testify under the influence of strong feeling. The same fact may be true of Hutchins, the witness by whom he is principally corrobor- ated. This fact requires that their evidence should be care- fully scrutinized, but will not warrant its rejection as in- credible. Their evidence, moreover, is corroborated by facts and circumstances stated by others. The weight of the evidence is decidedly in support of the case made by the bill. The fact that Sheridan was to participate, in the profits of the business, and consequently his liability as a partner to third persons is sufficiently established. But if the evidence on the part of the complainant be utterly incredible, the case proved by one of the witnesses on the part of the appellant himself establishes his liability as a partner, and the right of the complainant to a decree against him. The case, as proved by the appellant, is that lie loaned the money to Combs, for which he was to re- ceive twenty-five per cent, in case Combs succeeded in business ; in other words, he was to receive nineteen per cent, per annum out of the profits of the business over and above the legal rate of interest. The better opinion is, that such contract, though usurious as to the other party, as to third persons made Sheridan a partner with the borrower, and liable, as such, for the debts of the firm. 2 W. Bloc. 999, Bloxom v. Peel ; 1 Parsons on Con. 134. A court of equity would surely pever penmt Sheridan, himself holding a judgment for his loan, the validity of which is unimpeached, to set up his own usury in avoid- ance of his liability as a partner to the ~bona fide creditors of the concern. There is no such material or essential difference be- tween the allegations and proofs as to prejudice the com- plainants' right of recovery. The material averment in the bill is, that the appellant is liable as a partner of Combs, by reason of his participation in the profits of the NOVEMBER TERM, 1855. 479 Sheridan v. Medara. business. The precise share of profits received by Sheri- dan, or the time of receiving of it, is not material. The decree of the Chancellor should be affirmed with costs. The decision was affirmed by the following vote : for Affirmance CHIEF JUSTICE, Judges AKROWSMITH, IIUYLEE, RlSLEY, VREDENBUBGH, CoBNELISON, HAINE8, POTTS, VALENTINE, WILLS. For reversal None. CITED tn Hargrave v. Conroy, i C. E. Or, 283k COURT OF ERRORS AND APPEALS MARCH TEEM, 1856. Between JOHN YARD, jim., appellant, and THE PACIFIC MUTUAL INSURANCE COMPANY and JOSEPH C. POTTS, president, &c., respondents. Admitting it to be true that the capital stock of an insurance company waa not bonafide paid in, and that the company commenced the business of in- surance in violation of the express provision of the charter, yet this court ought not to interfere with suits brought upon bonds in a court of law for the purpose of aiding the complainants to avoid their payment, where it appears that the bonds were given in payment for the stock of the com- pany, that the complainant received his certificate of stock, and that upon these bonds, as a portion of the capital, the company embarked in business. The question is a legal one, and the complainant may avail himself of it, as far as it is a defence in the suit at law. Upon the ground that it is against public policy to permit the company to enforce a bond given in violation of law, the complainant may have the right to defend himself at law and in equity, and yet not be entitled, as a complainant in this court, to be relieved against their payment. A complainant who invokes the equitable powers of this court will be com- pelled to do equity before he obtains its aid. The charter declared that the capital stock should be actually paid in before it shall be lawful for the said company to commence the business of insur- ance, and the company is authorized to invest its capital in public stocks, bonds, and mortgages, and such other securities as the directors may ap- prove. It appeared that the whole capital was securely invested ; that the subscription to the stock was made in good faith ; that the company went on and insured upon the faith of this capital. It was held that individ- uals who gave their obligations to constitute this capital could not repudi- ate them on the ground that the stock had not been subscribed and paid in. The securities are not void because, instead of going through the for- mality of receiving the money, and then paying it back and taking securi- ties, the directors took the securities without this ceremony. One stockholder in a company, because he has an unsettled account with them, or s^.~ other matter of dispute, has no right to bring a company into this coort to settle all their accounts as a company. MAECH TEEM, 1856. 481 Yard v. Insurance Co. When the complainant does equity, and pays up the installments already as- sessed and the costs of the suit at law, the court will protect him against any assessment not levied upon other stockholders. The case sufficiently appears in the Chancellor's opin- ion. The cause was argued in the Court of Chancery, in the term of October, 1854, by William Hoisted and Mercer Beasley, counsel for the complainants, and William L. Dayton, of counsel for the defendant, upon the pleadings filed. On the eighteenth day of October, 1854, a final decree was made ordering that the complainant's bill be dis- missed, and the injunction dissolved. From this decree an appeal was taken. The Chancellor furnished the court with the following opinion, as containing the reasons for his decree. WILLIAMSON. C. The Pacific Mutual Insurance Com pany hold two bonds of the complainant, one conditioned for the payment of four thousand dollars, and the other conditioned for the payment of two thousand dollars : they are both secured by mortgage. After the day men- tioned for payment, the company commenced an action at law upon the bonds in the Circuit Court of the county of Mercer. Upon filing the bill of complaint, one of the injunction masters, upon application to him, allowed an injunction to issue restraining the further prosecution of that suit. The defendants have answered the bill, and now move to dissolve the injunction. The first allegation in the bill, and one which is made a distinct ground upon which the complainant claims the protection of the court is the following : by the second section of the act incoqx>rating this company, it is en- acted, " that the capital stock of said company shall be two hundred and fifty thousand dollars, divided into shares of fifty dollars each, and that the whole of said VOL. n. 2s 482 COURT OF ERRORS AND APPEALS. Yard v. Insurance Co. capital stock shall be actually paid in before it shall be lawful for said company to commence the business of in- surance." It is further enacted, by the tenth section of the act, that the company may invest their capital and ac- cumulating premiums, from lime to time, in public stocks, bonds, and mortgages, and such other securities as the di- rectors may approve. By another section of the act, four individuals are named as commissioners to open books for the subscription of the capital stock, and are author- ized, as soon as two thousand shares are subscribed, to appoint an hour and place for holding the first election for directors. After setting out the seportions of the act, the bill states that the capital stock was never actually paid in, and that therefore the company had no right to commence the business of insurance ; that in lieu of the cash which the said charter required to be paid for sub- scriptions to the capital stock of the said company, the directors of the said company, in direct violation of the provisions of the second section of the said act, and in fraud of the said act, for the purpose of evading and avoiding the provisions of the said act, took in payment of subscriptions for stock in said company the bonds and mortgages of individuals, and in gross violation of their duty as directors, agreed to receive the bonds and mort- gages of individuals instead of cash, in payment of such subscriptions for stock, and to consider the same as part of their capital stock ; that the complainant, relying upon the representations of Joseph C. Potts, president of the company, that he, the complainant, could lawfully and rightfully pay for any amount of stock which he might subscribe for without paying any money, but simply by giving his bond and mortgage for the amount, and upon the further representation that he, the complainant, would not be called on to pay any money, and that the dividends on the stock would more than pay the interest on his bonds and mortgage, and that the business of the com- pany would be very profitable, was induced to give his MARCH TERM, 1856. 483 Yard v. Insurance Co. said two bonds and the mortgage to the company. The bill further alleges, on this part of the case, that it was agreed between the complainant and Joseph C. Potts, president, that the bonds were not to be paid until the same were required for the purpose of paying the losses which might occur by fire to houses, buildings and pro- perty lawfully insured. It is then alleged that the capital stock of $250,000 never having been actually paid in, the company was never authorized to commence the business of insuring, and that all the policies and contracts of in- surance made by the company are illegal, and that there- fore the company has no right to the bonds of the complainant, for the purpose of paying any losses on such policies or contracts. The bill then alleges that the bonds were given for no other consideration than in payment of the amount of stock which the complainant had agreed to subscribe, and for which stock he received a certificate of the president, and countersigned by the treasurer. The bill alleges, that the complainant never subscribed for any stock on the books of the company, at the time the books were opened for the purpose by the commissioners, and insists that the president and treasurer had no right to issue any certificate of stock, except for such as was regularly subscribed for before the commissioners. The bill concludes this part of the case by alleging that the complainant has been informed, and believes, that no books of subscription were ever opened by the commu*- sioners named 'in the act, and that the whole of the pre- tended subscription was a fraud upon the law, and that Joseph C. Potts, president, had no authority to accept a bond and mortgage for the stock of the company, and that, therefore, the bonds and mortgage are void. These statements of the bill present to us one feature of the complainant's case, and may be disposed of as a distinct ground upon which the complainant relies for equitable relief. Admit it to be true, that the capital stock of $250,000 COURT OF ERRORS AND APPEALS. Yard v. Insurance Co. was not J)ona fide paid in, and that the company did com- mence the business of insurance in violation of the express provision of the charter, ought this court to interfere with the suits brought upon these bonds in a court of law, for the purpose of aiding the complainants to avoid their payment ? In the first place, the question is a legal one, and the complainant may avail himself of it, as far as it is a defence in the suit at law. But, in the second place, if it is a legal defence, it is not one which a court of equity will aid a party in making. The bonds were given in the year 1851, in payment for the stock of the company, and the complainant received his certificate of stock. Upon these bonds, as a portion of their capital, the company em- barked in business. The complainant stood ready to re- ceive the gains of the speculation. He has been disap- pointed ; and now, when called upon to pay his bonds in order to enable the company to meet their losses, he sets up that the company insured upon the faith of his bonds when they should have compelled him to pay the money, instead of receiving his obligations. Now, if it is true that he is not legally liable upon these bonds, upon the ground that it is against public policy to permit the com- pany to enforce a bond given in violation of law, the complainant may have the right, which this court can not deny him, to defend himself at law and in equity upon this ground, and yet not be entitled, as a complain ant in this court, to be relieved against their payment. A defendant may have a good defence, of which, as a defend- ant, he may have the benefit, but of which, as a com- plainant, he could not avail himself, except upon such equitable terms as the court might impose. A complain- ant who invokes the equitable powers of this court, will be compelled to do equity before he obtains its aid. In the case of Green v. Seymour (3 Sand. Ch. It. 285), a case relied upon with much confidence by the complainant's counsel, the court decided that a corporation cannot MARCH TERM, 1856. 485 Yard v. Insurance Co. ei orce a mortgage which it has obtained by a transfer *,aken contrary to the express provision of its charter, and that the mortgagor may avail himself of such illegality, and thereby show that the corporation has no valid title to the mortgage. In that case the defendant, being brought into court, had a right to make the defence, which the court could not refuse him. Had he been the complain- ant, seeking the equitable powers of the court to relieve him, the court might have controlled his case without re- gard to strict law. The principle is a familiar one. Usury is a good defence against the foreclosure of a mortgage ; but if the mortgagee commenced suit upon the bond and mortgage in a court of law, a court of equity will not re- move the case from another jurisdiction to aid a party in such a defence. It would not relieve a complainant in such a case from the usury, without compelling him to do equity by paying the amount actually due, discount- ing the sum usuriously taken. It appears to me that, under the circumstances of this case, the court ought not to interfere with the proceedings at law to aid the com- plainant in the legal defence (if it be one) which he seeks to set up against the payment of his bonds ; or, in other words, the court ought not, upon such an equity, to change the forum of litigation which the adversary has- selected. But is the defence a good one, either at law or in equity ? The charter declares that the capital stock shall bp ac- tually paid in before it shall be lawful for the said com- pany to commence the business of insurance, and the company is authorized to invest its capital in public stocks, bonds, and mortgages, and such other securities as the directors may approve. The object the legislature had in view was to have a bona Jitle capital of $250,000 provided and safely secured for the beneiit of persons who should become insured. If the company had hud the $250,000 paid in, in specie, and had turned around imme- diately, and invested it, it is admitted that the transac- tion would have been in compliance with the charter, and 2s* 486 COUKT OF ERRORS AND APPEALS. Yard v. Insurance Co. that the company might have proceeded at once to the business of insurance. If, then, the capital stock of $250,- 000 was subscribed, and the directors, instead of going through the formality of receiving the money, and then paying it back and taking securities, took the securities without this ceremony, were the provisions of the charter violated, and are all these securities so taken void ? It appears that the whole $250,000 capital was securely in- vested ; that the subscription to the stock was made in good faith ; that the company went on and extensively insured upon the faith of this capital. Should the individ- uals who gave their obligations to constitute this capital be permitted to repudiate them ? In my judgment the complainant cannot be relieved from the payment of his bonds on this ground in a court of equity. But the complainant alleges actual fraud in the procuring of his bonds and mortgage. First. That Joseph C. Potts, the president of the com- pany, represented to him that he might lawfully subscribe for the stock and pay for it in his bonds. This was a mere matter of opinion ; it was the judgment of Mr. Potts upon the law. The complainant had the charter before him. There was no misrepresentation of facts made to the complainant. Second. That Mr. Potts represented that the complain- ant would not be called upon to pay any money, and that the dividends on the stock would more thari pay the in- terest on the bonds, and that the business of the company would be very profitable. The answer admits, in sub- stance, that these representations were made to the com- plainant, but denies that they were made fraudulently. Mr. Potts himself evinced his confidence in his assertions by taking upwards of $15,000 of the stock of the com- pany. This is not such a misrepresentation as will justify the interposition of a court of equity. Story's Eq. 191. If the company, or Mr. Potts, as their lawful agent, had entered into a parol agreement with the complainant that MAECII TEEM, 1856. 487 Yard v. Insurance Co. the dividends of the stock should meet the interest on the bonds, and that his bonds should be paid out of the profits of the business, the obligor could not avail himself of such a contract, either in this court or a court of law. A valid instrument cannot thus be destroyed by parol evidence ; parol evidence for such a purpose would have been inad- missible. Every allegation of actual fraud charged in the bill is negatived by the answer. There is one other ground upon which the complainant asks the interference and protection of the court. The whole capital stock of $250,000 is secured by the bonds and mortgages of different individuals. The company having met with heavy losses, it became necessary to make an equitable assessment upon the respective amounts due from these debtors, in order to enable the company to meet its liabilities. Four assessments, of ten per cent, each, have been made, and out of sixty subscribing stock- holders only six, including in this number the complain- ant, have refused to make payment. The company, on account of the disasters they have met with, have ceased doing business. They are unable to tell what amount will be required upon the bonds and mortgages they hold to meet their liabilities. The complainant asks, first, that an account may be taken in this court of all the concerns of the company, and, as he is liable only to pay his pro- portion -of any losses, that the suit at law may be re- strained until such accounts are taken and such proportion ascertained. But why should the defendants be compelled to settle their accounts in this court ? It would only em- barrass the coihpany, and be a useless expense. One stock- holder in a company, because he has an unsettled account with them, or any other matter of dispute, has no right to bring a company into this court to settle all their accounts as a company. But, second, the complainant insists that all the com- pany are entitled to receive of him is the amount of four 488 COURT OF ERRORS AND APPEALS. Yard v. Insurance Co. instalments of ten per cent., being the same amount re- quired of the other bondholders. At law, the company may enforce the payment of the whole amount due upon the bonds, while, it is true, in equity they are entitled to call for no more than the like assessment they have made upon the other stockholders. "When the complainant does equity the court will protect him. Let him pay up the in- stalments already assessed and the costs of the suit at law, and this court will protect him against any assessment not levied upon other stockholders. The company demand of him nothing more than his equal assessment. They offered, and are still willing to take from him his fair proportion. They ask nothing more. He compelled them to sue on the bonds. He must place himself right in court before it will interfere on his behalf. The injunction must be dismissed with costs. The appeal was argued by Hoisted and Beasley, for appellant. Dayton, for respondent. The opinion of the court was delivered by ELMER, J. "Whatever might be the result if the question was directly before the court whether the company was ever legally organized, it is clear that the appellant cannot now dispute that fact. He gave to them his bonds and mortgages, thus acknowledging them to be a corporate body, and calls them before the court as such. If the pro- ceeding was illegal, he was a party to that illegality, and cannot invoke the powers of a court of equity to aid him in defending himself from the consequences of his own voluntary acts. So far from being against public policy to enforce the payment of the appellant's bonds, public policy requires MARCH TEEM, 1856. 489 Woodruff v. Water Power Co. that it be done, otherwise entirely innocent parties would suffer. The allegations of fraud contained in the bill are distinctly and fully denied in the answer. The money sought to be recovered is required to pay losses incurred in the regular business of the company, and the appellant is required to pay no more of them than his proper pro- portion. Before he can ask relief, he must offer to do what is equitable and just on his part, that is pay the in- stalments assessed on him and the costs of the suit at law. The decree of the Chancellor must be affirmed with costs. Decision affirmed by the following vote : For affirmance CHIEF JUSTICE, JUDGES AREOWSMTTH, RlSLEY, CORNELISON, HAINES RYERSON, ELMEB, OGDEN, VALENTINE, WILLS. For reversal None. CITED in Brewer v. Marshall, 3 C. E. Or. 344. Between PATRICK H. "WOODRUFF and DICKINSON "WOOD- BUFF, appellants, and THE TRENTON WATER POWER COM- PANY, respondents. The owner of a valuable farm, situated on the river Delaware, conveyed to the Trenton Delaware Falls Company, their successors and assigns, a portion of his farm adjoining the river, and across which they had located their main raceway, "subject nevertheless to the following proviso : that if the said main raceway shall not be made on said premises in conformity to the act incorporating said company, the said lands and premises shall revert to the said George Woodruff, his heirs and assigns. And also, that the said party of the second part shall erect, maintain, and keep in good repair, a safe, COM. venient, and substantial bridge across said main raceway, at a place to be designated by the said grantor ; and also cause to be made and kept in order a convenient landing place on the side next the river Delaware, so that wagons may at all times safely pass over the same : and shall also erect and maintain all necessary fences across the said main f-iceway, together with 490 COURT OF EEEOES AND APPEALS. Woodruff v. Water Power Co. fences across the said premises, and shall also permit the said party of the first part to use the said raceway to give drink to his cattle, and also to take ice therefrom to fill his ice-house." The grantees cut the main race way, and it came into the possession of the defendants, as assignees of the grantees, by virtue of several acts of the legislature. The bill alleges that the grantees ! and the defendants have always refused to perform their said covenants and agreements, and prays a specific performance and compensation for the in- jury sustained. Held, 1st, that if the matters mentioned in the proviso of the deed could be legally regarded as covenants, and as such be enforced at law, the court would have no difficulty in declaring them to be covenants relating to the realty and running with the land, and that both the liability to perform them, and the right to take advantage of them, passed to the assignee of the land and of the reversion. Such a construction would not conflict with the principles established in Spencer's case, 5 Coke 16. 2d. That there are no covenants contained in the deed on the part of the gran- tees. A condition is quite distinct from a covenant. The language is ap- propriate to create a condition, and as if to avoid any doubt, the legal con- sequences of a breach or violation of the condition is inserted. Upon covenants, the legal responsibility of their nonfulfilment is, that the party violating them must respond in damages ; the consequence of the nonfulfilment of a condition is a forfeiture of the estate. This court cannot enforce the specific performance in a deed, the nonperform- ance of which works a forfeiture of the estate. The grantor has fixed his own remedy, and can forfeit the estate at his pleasure. \ The bill alleges, that George Woodruff was in his life- time seized and possessed in fee simple of a certain farm, situate in the township of Ewing, in said county, called Oaklands, containing about one hundred and eighty acres, upon which was situate a valuable mansion house and outbuildings, and upon which he resided with his family for many years next preceding his decease ; that the said farm was situate upon the river Delaware, and had an ex- tended front upon and along the same, running down to low water mark, which afforded at all points an easy and convenient access to said river, so that it could be and was much resorted to and used by said George "Woodruff and his family, and persons occupying and using said farm under him, for the purposes of bathing, boating, fishing, watering cattle, and procuring ice in winter, and for other purposes of business and pleasure. And the value of said farm, both as a desirable residence and for the purposes MAECH TEEM. 1856. 491 Woodruff v. Water Power Co. of cultivation, was much increased by its situation upon said river, and the ease and convenience with which the advantages thereof could be used and enjoyed ; that by an act of the legislature of this state, passed on the six- teenth day of Tebruary, in the year of our Lord one thou- sand eight hundred and thirty-one, entitled, " An act to incorporate a company to create a water power at the city of Trenton and its vicinity, and for other pui poses," a company was incorporated, by the name of " the Trenton Delaware Falls Company," for the purposes and with the powers and privileges therein described, and by that name were by said act declared to be a body politic and corpo- rate in fact and in law, and among other things in and by said act mentioned, the said company were thereby em- powered, in order to create a water power, to erect a wing- dam in the Delaware river between the mouth of the As- sanpink creek and the head of Wells' falls, and also to cut a main raceway from said wingdam, in and along and near the bank of said river, to a point below the city of Trenton, and also lateral raceways from said main race- way to the river Delaware ; that the said company was duly organized under the said act, and went into operation under the same, and proceeded to erect and make, and did erect and make said wingdam and said main raceway, and other works, in pursuance of the authority given them in and by said act ; that the route of said main raceway, as laid by the said company, was across that part of said farm of the said George "Woodruff which lay next the said river Delaware, and it was necessary for said com- pany to have a portion of said lands, in order to cut and make said raceway ; that the said company applied to the said George Woodruff to sell and convey to them that part of his said farm which lay adjoining to said river, in order that they might make thereon that part of their main raceway which lay across his said farm, according to the route designated and fixed by said company under their charter, and the said George Woodruff agreed to do 492 COURT OF ERRORS AND APPEALS. Woodruff v. Water Power Co. so for a consideration agreed upon between him and said company, and which is expressed in the deed which he executed to them, as is hereinafter stated, to wit, the sum of three hundred dollars and of certain privileges granted to him, and of certain covenants and agreements to be performed and kept on the part of said company, and in said deed contained, as is hereinafter more fully expressed and set forth ; that in pursuance of said agree- ment, the said George Woodruff and Jean his wife, on or about the twenty-sixth day of January, in the year of our Lord eighteen hundred and thirty-two, did, in and by a cer- tain deed of conveyance, bearing date on the day and year last aforesaid, made between the said George Woodruff and Jean his wife, of the first part, and the said the Trenton Delaware Falls Company, of the second part, in considera- tion of the sum of three hundred dollars, to them the said grantors paid, and of the covenants and agreements in said deed contained, grant, bargain, sell and convey unto the said company, their successors and assigns, in fee simple, the following described portion of said farm, being all that part thereof which lay adjoining and next to the river Delaware, to wit : beginning at low water mark of the river Delaware, at line of lands of John Ti- tus ; thence by said line north, forty-four degrees east, one chain and twenty-five links ; thence north, fifty-nine and a half degrees west, four chains ; thence north, fifty- nine degrees west, two chains ; thence north, sixty-one degrees west, three chains ; thence north sixty-six de- grees west, twelve chains and six links, to Hill's line ; thence by said line south, thirty degrees west, one chain and twenty links to low water mark ; thence by low water mark, the several courses thereof, to the place of beginr ning, containing two acres and sixty-three hundredths of an acre, subject nevertheless to the following proviso and covenants, contained in said deed, and therein set forth, as follows, to wit : " subject nevertheless to the following proviso, that if the said main raceway shall not be made MAECH TEEM, 1856. 493 Woodruff v. Water Power Co. on said premises in conformity to the act incorporating said company, the said lands and premises shall revert to the said George "Woodruff, his heirs and assigns. And also, that the said party of the second part shall erect, maintain, and keep in good repair a safe, convenient, and substantial bridge across said main raceway, at a place to be designated by the said George Woodruff, and also cause to be made and kept in order a convenient landing place on the side next the river Delaware, so that wagons may at all times safely pass over thereon, and shall also erect and maintain all necessary fences across the said main raceway, together with fences across the said pre- mises where the lines of the aforesaid John Titus and Jas- per S. Hill cross the said main raceway, and shall also per- mit the said party of the first part to use the said raceway to give drink to his cattle, and also to take ice therefrom to fill his ice-house, said party of the first part so to use said privileges that no damage shall accrue to said race- way," which said deed was afterwards, and on the day and year last aforesaid, duly acknowledged by said party of the first part, and delivered to the said company, and recorded in the clerk's office of the county of Hunterdon, in which said lands were then situate, and your orators pray leave to refer to said record or to said deed, if the same shall be produced ; that the said company, shortly after the said deed was executed and delivered to them as aforesaid, entered upon and took possession of said lands and premises thereby conveyed to them, and cut and made, through and across the same, the main raceway, which by the said act they were empowered to make from their wingdam to a point below Trenton, as aforesaid, and that said premises have been ever since held and occupied for their own use by the said company; or those claiming under them ; that the said company, having made and erected their said main raceway and other works under their said charter, thereby created an extensive and valua- ble water power, which they used and leased for manu- YOL. n. 2 T 494 COUKT OF EREOES AND APPEALS. Woodruff v. Water Power Co. facturing or other purposes, and that they received from time to time a large income therefrom ; that some time in the year eighteen hundred and forty-three, it was alleged that the said company had become insolvent, and a bill was then filed against them in this honorable court by Andrew Carrigan, one of their creditors, under the act entitled, " An act to prevent frauds by incorporated com- panies," and such proceedings were had thereon that by an order of this court, made in said cause, James Ewing, Thomas J. Stryker, and Philemon Dickinson were ap- pointed receivers of said company, with full powers to sell, convey, and dispose of the real and personal estate, works, and franchises, of said company, according to law, as in and by said proceedings, now on file in this court, and to which . your orators pray leave to refer, will fully and at large appear. And the said receivers did, on or about the twentieth day of February, in the year of our Lord eighteen hundred and forty-four, sell the real estate (including said raceway) and the works and franchises of said company at public sale, to the highest bidder, and did afterwards, and on or about the eighth day of March, in the year last aforesaid, execute and deliver to the pur- chasers thereof a deed conveying to them the said real estate, raceway, works, and franchises in fee simple ; that before the said sale was made, to wit, on the fifteenth day of February, in the year of our Lord eighteen hundred and forty-three, an act was passed by the legislature of this state entitled, " An act to relieve the creditors of the Trenton Delaware Falls Company," whereby it was, among other things, enacted and declared that the purchasers oi the real estate, franchises, and works of said company should hold the said works, franchises, and real estate as , a joint stock company, in the same manne'r as the origi- nal stockholders held the same, provided that they should not extend their capital beyond the limits of the charter, or in any wise contravene the provisions thereof ; and pro- vided further, that after said purchase, the said company MARCH TEEM, 1856. 495 Woodruff r. Water Power Co. should be known as " the Trenton Water Power Company," and by that name might sue and be sued, and have a com- mon seal, and exercise all its corporate powers ; that by virtue of the said last mentioned statute, the corporate name of the said corporation was, upon the sale of the said real estate, works, and franchises by the receivers as aforesaid, changed, from the title given to it, in and by its original cliarter, to the name of " the Trenton Water Power Company," by which last mentioned name the said corporation was thereafter to be known in law, and to sue and be sued, and to exercise all its corporate powers, and that the purchasers of the said real estate, works, and franchises were, under said act, to hold and did hold the same as a joint stock company, in the same manner as the original stockholders held the same. And the said purchasers did accordingly, on or about the second day of January, in the year of our Lord eighteen hundred and forty-four, organize themselves under the name of "the Trenton Water Power Company," and by that name, as a body politic and corporate in law, have ever since claimed, held, exercised, and enjoyed, and do still claim, hold, ex- ercise, and enjoy, subject however to the provisions of the original charter, all the corporate powers of the said cor- poration, and all the real estate, works, and franchises so as aforesaid sold and conveyed by said receivers, and in which is included the real estate sold and conveyed by the said George Woodruff, in manner aforesaid ; that the whole river front, which the said farm of the said George Woodruff, formerly had upon the river Delaware was, by the conveyance by him to said company, of the premises above described, and the making of said main raceway through and across the same, entirely cut off and taken away, and he and all persons holding and using said farm were deprived of all benefits and advantages formerly enjoyed from an easy access to said river ; that the said George Woodruff held and possessed said farm, as the owner thereof in fee simple, from the time of the afore- 496 COUET OF ERRORS AND APPEALS. Woodruff r. Water Power Co. said sale of a part thereof to said company until, some time in the month of September, in the year of our Lord eighteen hundred and forty-six, when he departed this life, leaving a last will and testament, executed in due form of law to pass real estate, and therein appointing his wife, Jean Woodruff, and your orator, Patrick Hous- toun Woodruff, the executors thereof ; that the eaid Jean Woodruff, desiring not to act as executrix of said will, your orator, Patrick Houstoun Woodruff, duly' proved the same before the surrogate of the county of Mercer afore- said, and received from him a grant of letters testament- ary thereon, and took upon himself the execution thereof, as by said letters, bearing date on the fourteenth day of September, in the year of our Lord eighteen hundred and forty-six, now in your orator's custody and ready to be produced, will fully appear ; that in and by said last will and testament, the said George Woodruff devised his said farm unto your orators and their two brothers, Robert J. Woodruff and Thomas M. Woodruff, in fee simple, sub- ject to the life estate therein of his wife, the said Jean Woodruff, who afterwards, in the month of April, in the year of our Lord eighteen hundred and forty-eight, de- parted this life, and to the payment of a certain legacy unto their sister Mary, wife of Charles L. Pearson, which hath since been fully paid and discharged, and that after- wards, and on or about the fourteenth day of October, in the year of our Lord eighteen hundred and fifty-one, the said Robert J. Woodruff and Thomas M. Woodruff, con- veyed all their estate and interest in said farm unto your orator, Patrick Houstoun Woodruff, in fee simple, as by their deed of conveyence to him, bearing date on the day and year last aforesaid, and now in his custody and ready to be produced, will appear, by means whereof your ora- tors are now the owners, in fee simple, of the said farm, and of the estate and interest which said George Wood- ruff had therein at the time of his decease, and they are now in the actual possession and enjoyment thereof ; that MARCH TERM, 1856. 497 "Woodruff v. "Water Power Co. the said George Woodruff, in his lifetime, and your ora- tors and their two brothers, herein before named devisees as aforesaid, have at all times kept and performed all cove- nants and agreements in the said deed from said George Woodruff contained on his and their part to be kept and performed ; that by reason of the matters herein before set forth, and in particular by reason of the contracts and covenants contained in the said deed from the said George Woodruff to the said the Trenton Delaware Falls Com- pany, the said company were bound to erect, maintain, and keep in good repair a safe, convenient, and substan- tial bridge across said main raceway, and also a convenient landing place on the side next the river Delaware, so that wagons might at all times pass over thereon from the said farm of the said George Woodruff, and also to erect and maintain fences across said main raceway and- said pre- mises, so conveyed by said George Woodruff to said com- pany, at the places and in the manner expressed in said deed, and herein before mentioned and set forth. And further, that the name and organization of the said com- pany having been changed, as is herein before set forth, and said company being now known in law by the name of " the Trenton Water Power Company," that the said the Trenton Water Power Company are bound 'to erect and maintain, and keep in good repair, the said bridge, landing place, and fences, and in all things to perform and keep the said covenants and agreements in said deed con- tained ; but neither the said the Trenton Delaware Falls Company nor the Trenton Water Power Company have ever performed or kept said covenants and agreements, in whole or in part, but have wholly failed and neglected so to do. And the said George Woodruff, in his lifetime, fre- quently applied to the said the Trenton Delaware Falls Company and to the Trenton Water Power Company, and requested them to keep and perform said covenants, and to erect and maintain naid bridge and landing place 2 T* 498 COUET OF ERRORS AXD APPEALS. Woodruff v. Water Power Co. and fences in the manner required by said covenants, and in all things to fulfil the requirements thereof, and they frequently promised to do so, but have always failed and neglected to attend to the same. And since the decease of the said George Woodruff, your orators and their bro- thers, herein before named, have, by themselves and their agents, frequently applied to the said the Trenton Water Power Company, and have pointed out the place at which they wished the bridge from said farm across said main raceway to be erected, to wit, at the place opposite to the end of the lane running from the feeder of the Delaware and Raritan canal to the main raceway aforesaid, and have requested said company to perform said covenants and to erect and maintaim said bridge, landing place, and fences, and also to pay them a compensation or damages for the injury sustained from the failure of said company to erect and maintain the same, as by said covenants they were bound to do ; and the said company frequently pro- mised them that they would do so, or if it would be equally satisfactory, that the company would pay your ora- tors and their co-devisees aforesaid, a sum of money in lieu of the performance of said covenants ; but the said company have always failed to keep said promises, and have never erected any bridge, landing place, or. fences upon said premises, nor in any manner performed the said covenants, or any part thereof ; that from the time of the making of said main raceway until the present time, there has been no bridge or fences across said main raceway upon said farm erected or maintained by the said com- pany, either under its former or its present name, and the said George Woodruff and your orators, and all persons holding and using said farm under him or them, have in various ways suffered, and your orators do still suffer, much inconvenience and loss for the want of the same ; that for the want of such bridge and landing place, they have not been able to cross said main raceway from said farm to said river with their cattle, horses and w^agons, as MAECH TEEM, 1856. 499 Woodruff v. Water Power Co. they otherwise might have done, and which would have been of material service to them ; that for want of the fences which said company were bound to erect and main- tain as aforesaid, the said George "Woodruff, in his life- time, and your orators since his decease, have been com- pelled either to make and maintain said fences at their own expense or to suffer their lands to be exposed and open to trespass, and they have experienced much annoy- ance and loss from trespasses by cattle and persons, and have been put to great expense in putting up fences, by reason of the failure of said company to make and main- tain the fences which by their said agreement they were bound to make and maintain as aforesaid ; that the said company, having been frequently applied to, as aforesaid, to keep and perform the said covenants, and having pro- mised to do so, but without in any manner keeping such promise, your orators, together with their brothers before named, who had not then parted with their interest in said farm, did, on or about the fifth day of December, in the year of our Lord eighteen hundred and fifty-one, caused a notice and requirement in writing to be served upon the president of the said the Trenton "Water Power Company, pointing out the place where they wished the said bridge to be built across said main raceway upon said farm, being the same place hereinbefore in that respect mentioned, and calling upon said company to keep and perform the covenants in said deed contained, and to erect and maintain said bridge, landing place, and fences, and to pay unto them damages or compensation for the said company's past neglect to perform said covenants, and the said company thereupon promised to do so, but have wholly failed and neglected to do it; that the full and faithful performance of said covenants by said company, according to the true intent and meaning thereof, would afford your orators a direct access to said river with their cattle, horses, and wagons, and would give them many advantages in the use and enjoyment of their eaid farm 500 COURT OF ERRORS AND APPEALS. Woodruff v. Water Power Co. of which they are now deprived, and would save them from much annoyance and loss, which they have long suffered for the want thereof, and would also increase the market value of their farm, in case they wished to sell the same ; that the said George Woodruff * having, by the deed hereinbefore mentioned, conveyed to said company that part of his said farm therein described for the con- sideration, in part, of having fences kept up and main- tained as aforesaid, and a bridge and landing place built and maintained in good order from his said farm across the main raceway aforesaid, and the said company having taken said land so conveyed to them, and used and enjoyed the same from that time to the present, that the said com- pany were bound to keep and perform said covenants with the said George Woodruff in his lifetime, and are now bound to keep and perform the same with your orators, who are his heirs and devisees, and who now hold and pos- sess the said farm in fee simple, by title derived from him in manner herein before set forth ; and that the said com- pany are also bound to pay to your orators compensation or damages for the past omissions of said company to keep and perform the said covenants, &c. The defendants answered the bill, and evidence was taken on both sides, but the points on which the case was decided sufficiently appear from the above synopsis of the bill. The cause was argued in the Court of Chancery, February term, 1855. J. F. Randolph, for complainants. The complainants are entitled to the covenants in the deed. They are covenants as to realty, and run with the land. Platt on Cov. 523, 529, 232; Spencer's case, 5 Co. Rep. 17 ; 1 Smith's Lead. Cos. 22 ; 5 Halst. Rep. 20. The complainants, as devisees, are entitled to the benefit of the covenants. 2 Bac. Ab. 62. No form of language necessary. The acceptance of the deed is sufficient, although not signed by the party covenanting. MARCH TERM, 1S56. 501 Woodruff v. Water Power Co. The defendants are privies of the Tr.enton Delaware Falls Company, who made the covenants. Cardigan's case, \H. C.R. Spenc. Rep. 659. Complainants are entitled to specific performance and damages. 2 Story's Eq. J. 721 (a) ; Storer v. G. W. Rail- way, 3 Young & Collier 48, 53. As to time. The deed is dated January, 1832, and the bill filed 13th June, 1853. The time is accounted for. The parties were continu- ally negotiating. The company was embarrassed. But defendants can take no advantage from the lapse of time. They hold by the same deed which contains the covenant. When they show their title they show their ob- ligation. King v. Morford, Saxtorfs 7?. 279 ; 1 G. C. 12. 106 ; 4 J. C. R. 287 ; 2* Stonfs E. Righter. allowed. The cause is now brought to a final hearing upon its merits. There can be no controversy but that the release is comprehensive enough to include the judgment and bond and mortgage. That release must be removed out of the way before the judgment or mortgage can be enforced. No parol testimony can be admitted for the purpose of showing that the intention of the parties, or either of them, was different from that expressed in and by the re- lease itself. If it can be shown that the instrument was procured by fraud, that will vitiate it, and it will be set aside in toto. If it can be shown fhat there was a mistake in the drawing up and executing it, for instance, that the scrivener was instructed that in preparing the release he should exclude the judgment and mortgage, and that it was executed under the impression that it was drawn ac- cording to such instructions, but that by mistake the scrivener had omitted to make the exception, in such case this court will relieve the party whose rights are af- fected by such mistake. But such mistake must be esta- blished by evidence so clear and incontrovertible that the court may feel an assurance that it cannot itself make any mistake in confiding its judgment upon it. Courts of equity have gone quite far enough in reforming sealed instruments. There are instances where it would seem that the supposed hardship of the case has had more weight than the evidence in influencing the judgment of the court. Parties are not entitled to relief against their own mere carelessness and negligence. A mistake in a sealed instrument can be proved only by reliance upon parol testimony. It is always dangerous, where parties have re- duced their intention and agreement to writing, to under- take to substitute what they intended to do for that which they actually did do. The complainants endeavor to avoid the release upon three grounds : first, fraud ; second, mistake ; third, that the defendant's conduct induced them to advance their MARCH TERM, 1856. 513 Martin r. Righter. money and to purchase the judgment and mortgage, and that he is chargeable, therefore, with standing by and seeing the complainants advance their money upon obligations of his own which were worthless. First. Was there anything in the manner in which the release was executed which subjects it to the charge of fraud, or to make it fraudulent for the defendant to apply it to the judgment and mortgage ? Let us take the case as it is made by the bill. The bill alleges, that one Joseph C. Righter, and the defendant, were connected in business ; that they held the drafts of Matthias Kitchel for about $1250, which had been drawn in their favor upon different mercantile houses at the South, and which had been protested for nonpayment ; that Joseph C. Righter and the defendant dissolved their business connections, and in their arrangements the drafts became the individual property of Joseph C. Righter ; that Joseph C. Righter, being desirous of bringing suits at law to collect the amounts due on the drafts against the drawer, and being in embarrassed circumstances, and fearful that the collec- tion of the drafts might be embarrassed by his creditors if he should bring suit in his own name, applied to Stephen W. Righter to take the drafts, and institute a suit upon them in his name, but for the benefit of him, Joseph C. Righter ; that Stephen W. Righter did accord- ingly commence the suit ; that when the said suit was about to be tried, the defendant alleged that he was in- terested in the said drafts and in the event of the suit, and John S. Hager, esq., who was attorney in the suit, thereupon advised that it might be necessary to examine the defendant as a witness, and that it was necessary for that purpose to release him, in order to discharge any in- terest he might have ; that the said attorney then tilled up a printed form of general release, and requested Stephen W. Righter to sign it ; that he objected, on the ground of the release being too broad and general in its terms ; whereupon the defendant replied, that it was no 514 COUKT OF ERRORS AND APPEALS. Martin v. Righter. matter, as the release should be given up to him as soon as the trial was over, and that it was necessary to execute the release in order to discharge his interest in the suit (the defendant then well knowing that he had no interest, and that the release was unnecessary) ; that the attorney advised that it was right and safe to execute the release, and that no harm could come from it ; that the defendant was examined as a witness in the cause, and that the only intention of the parties was to release the defendant's in- terest in that suit ; that no consideration passed for the re- lease, and that the defendant has frequently since admitted his indebtedness on the bond and mortgage. What was there in this transaction to justify the court in declaring that the defendant procured the release by fraud ? The proposal did not come from him to give the release. It is said he committed a fraud in pretending he was in 1 terested in the drafts, when he was not, and when he knew he was not. If this were so, it was no fraud. Joseph W. Righter, who declared the drafts belonged to him, was standing by to contradict the assertion. But the evidence in the cause shows that there was a dispute as to the ownership of the drafts, an I the weight of the testimony is, that the defendant was interested in the drafts to the amount of one half. But it is said there is another fact : he promised the re- lease should be given up as soon as the trial was over ; that there was no consideration given for the release, and the only object of it was to make the defendant a compe- tent witness in the suit. But all this is at variance with the instrument itself ; and to permit the complainants to prove it, would be admitting parol testimony to contra- dict and vary the plain and unambiguous terms of a sealed instrument. If the object was not to release the defend- ant from anything except from such liabilities as made him incompetent to be a witness in the suit, why was not such a release drawn ? There is no pretence that the de- fendant dictated the terms of the release. It was drawn MAKCH TEEM, 1856. 515 Martin v. Righter. by the attorney of the other party, and was retained for some time, and then delivered ; there can be no pretence that it was done hastily or through inadvertence. But there is another view of this feature of the case. This release was offered in evidence, and was received by the court as a valid release between the parties. Upon the faith of it, the defendant was admitted as a compe- tent witness, and was permitted to give evidence in the suit at law. Stephen "W. Righter, or the complainants, who stand in his place, now come into a court of equity, and allege that the release was to be delivered up after it had effected its purpose with the court ; and the defend- ant not fulfilling his promise, this court is called upon to declare it fraudulent and void. Such a case cannot be favored in this court. The agreement, if there was such a one, was fraudulent. It was imposed upon the court as a valid release, when the parties had agreed it should be considered a mere matter of form, and be cancelled. But there is another circumstance connected with this part of the case, as the complainants state it in their bill, very unfavorable to a party seeking redress in a court of equity. It is stated, as a favorable circumstance to the complainants' case, that it is admitted by all parties that Stephen "W. Righter had no interest in the suit at law. It is then asked, why, then, would he release this defendant of a debt of fifteen hundred dollars well secured without deriving any advantage to himself ? The answer is, he did release it, and there is his release under his hand and seal. But the misfortune of Stephen W. Righter is, that while assuming a position to avail himself of this argument, he is obliged to admit that he was conducting the suit for the benefit of Joseph C. Righter, and doing it in his own name, for the purpose of enabling Joseph C. Righter to protect his property from his creditor?. The fraudulent position which he occupied forced upon him the necessity of executing the relea.se. AVhere a party in committing a 516 COURT OF ERRORS AND APPEALS. Martin v. Righter. fraud, has a still greater one practised upon himself, he can have no redress against it in a court of equity. The proof does not sustain the allegation of fraud on the part of the defendant in procuring this release. It was given to him without his solicitation. I can see no fraud in his setting it up as a defence against a recovery upon this bond and mortgage. They are embraced in the legal construction of the instrument, and it is not com- petent under the circumstances, to show that it was the intention of the parties that it should be limited in its legal application. Second. The bill prays that the release may be de- clared to have been executed by mistake. The power of the court to correct a mistake in the execution of a writ- ten instrument, was well considered in the cases of Smith v. AUen and others (Saxton 46), and of Hendrickson et al. v. Ivins (Saxton 568). The mistake alleged is this : that when the attorney of Stephen "W. Righter had prepared the release, he objected to sign it, on the ground that it was too broad and general in its terms, as covering every- thing ; whereupon the defendant replied, it was no matter, as the release would be given up ; and then Mr. Hager, the attorney, advised Stephen W. Righter to sign it. It is manifest that the mistake was not in Stephen W. Righter's signing the release under a misapprehension as to its comprehensiveness ; for when he made this objection, neither the defendant or the attorney questioned the cor- rectness of his judgment as to the character of the instru- ment, lie did not execute the release under a miscon- ception or mistake as to its contents or as to its compre- hensiveness or effect. He executed it relying upon the promise of the defendant that he would return it to him. In that respect, the result has proved he was mistaken ; but that kind of mistake this court cannot remedy. It is an obligation of honor, which the parties must settle be- tween themselves. Third. The complainants insist that the defendant MAECII TEEM, 1856. 517 Mai-tin r. Righter. should not be permitted to set up the release as against them, because they were induced by the acts and conduct of the defendant to advance their money upon the bond and mortgage. The complainants are the assignees of the bond and mortgage. They are 1>ona fide assignees. Do they stand in any better situation, in respect to the defence set up, than the obligee himself did at the time of the assign- ment? The assignee of a bond takes it subject to all the legal objections and equities which exist against it in the hands of his assignor. If at the time of the as- signment this release was a legal defence as against the obligee, it is a legal defence against the complainant, his assignees. But they may avoid this defence in equity by showing that they were induced to take the assign- ment, and advance their money upon it, by the acts and conduct of the defendant, which make him guilty of a constructive fraud, or by such omissions or gross negli- gence as imply fraud. If the complainants had made ap- plication to the defendant to know what amount was due upon the bond and mortgage, and the defendant had told them the amount without apprizing them of the exist- ence of the release, or if the defendant had stood by si- lently, and seen the complainants advance their money upon the assignment, he would not, in a court of equity, be permitted to set up the release against the party claim- ing under such assignment. A man who designedly or knowingly produces a false impression upon another, who is thereby drawn into some act or contract injurious to his own rights or interests, is guilty of constructive fraud, against which a court of equity will afford an adequate relief. This is a familiar principle of equity. It will be found supported by numerous authorities in 1 Story 8 E%. e/., 384, and following sections and notes to the same. Let us see whether the complainants can avail them- selves of this principle. It is said tliit the defendant treated the bond and mortgage as valid and subsisting VOL. n. 2 x 518 COURT OF ERRORS AND APPEALS. Martin v. Righter. obligations binding upon him after the execution of the release. An acknowledgment of the amount of money due upon the bond, and that it was a subsisting debt, would not, either in a court of equity or law, prevent the defend- ant from pleading the release as against the obligee. Such an acknowledgment would not destroy the release. To make it available to these complainants, they must show that the act was prejudicial to them, and was made under circumstances to induce them, upon, the faith of such acknowledgment, to part with their money. If the acknowledgment was not made for the purpose, or under circumstances calculated to mislead the complainants, it could not be construed as a fraud upon them. The only acknowledgment proved to have been made by the defendant is by a witness, who says, that some time in 1848, he had a casual conversation with the de- fendant, and asked him how he was getting along with his business. " He said, veiy well ; his business had done well, so far as he had gone with it ; that his debts were mostly paid, with the exception of the mortgage that Stephen held upon his property in Rockaway." There certainly was nothing in this conversation which Stephen AV. Righter could take advantage of in any way. It was about this time that he sent the bond and mortgage, by Mr. Chandler, to the defendant to collect the interest upon it, when the defendant produced the release, and claimed it as a discharge of the bond and mortgage. But how did anything said by the defendant, in the conversation alluded to, prejudice the complainants ? They do not allege that what was then said was even known to them at the time of the assignment, and there is no proof that it was ever heard of by them until testified to by the witness. There can be no pretence that they advanced their money upon the strength of that conversation. If they did, that circum- stance would not help them, for they ought not to have relied upon it. There is only one other fact upon which the complain MARCH TERM, 1856. 519 Martin v. Righter. ants rely to show a constructive fraud, and that is the pay- ment of interest on the bond on the 20th of October, 1849. Of what took place at the time of this payment, and of the circumstances under which it was made, we have no legal proof. The statements of the bill, as to the particulars of the transaction, are denied by the answer, and neither the .statements of the bill or answer, as to the particulars, are sustained by proof. The evidence of the attorney, detail- ing the negotiation between himself and Stephen "W. Righter, and the declarations of the latter, are ruled out as incompetent to be given in evidence. We have the fact, that on the 20th of October, 1849, the defendant paid to Stephen "VV. Righter seventy-three dollars and twenty- nine cents for interest money due on the bond ; that when the payment was made the bond was not there, and a loose receipt was given for the payment ; that no money was paid, but the defendant gave his due-bill for $12.86, payable in time, and the balance, making up the amount of $73.29, was settled by an account which the defendant had against Stephen W. Righter. The mere fact of this payment is no bar or estoppel to the defendant's pleading the release at law, or setting it up in this court against the obligor. The release the defendant might or might not set up, as he pleased. It was a legal discharge to the whole amount due ; but because the defendant did not choose to take advantage of it to its full extent, what rea- son has the obligor to complain ? The payment was for his benefit, and did not or could not prejudice him in any manner. A sealed instrument could not be defeated by such an act. If it is said the payment is an admission of the obligor that the release does not extend to the bond, or that it was not the intention of the parties that it should extend to it, the answer is, the release speaks for itself, and as to its embracing the bond there is no question ; the instrument must be construed as to its legal effect, and the intention of the parties cannot be substituted. Do the complainants stand in any better situation than their as 520 COUET OF EREOES AND APPEALS. Martin v. Righter. signer ? The complainants had the opportunity of making application directly to the defendant to know whether he had any defence, legal or equitable, against the bond. If such application had been made, and the defendant had told them the sum of $1500 was due, and had not dis- closed their release, then the defendant would have been estopped from setting it up against them. This is quite as far as any of the cases referred to go. In Damson v. FranUin (I Barn. & Adol. U2 ; 20 E. C. L. 253), a war- rant of attorney was given to confess judgment for a gaming debt. The plaintiff, Davison, purchased the judg- ment ; but before doing so, his attorney produced the bond to the defendant, and informed him it had been offered for sale, and asked him whether he admitted it to be a good debt, and whether it was given for a good and valu- able consideration. The defendant replied, " Yes, this is my handwriting ; I owe Mr. Davison the money, and have no objection to make to it ; it will be paid when it is due." In Watson's Executors v. McLaren (19 Wend. 55 7), the ex- tent of the principle established was, that declaring a note to be good, to one about to purchase it, or standing by in silence when it is transferred for consideration, is an es- toppel in pais against a debtor. In Fosters. Newland(^\. Wend. 94), the principle settled was, that where a debtor admits to a third person an existing balance due from him on a bond or other chose in action, and upon the strength of such admission such person takes an assignment of the bond or other chose in action, the debtor, in a suit subsequently brought for the recovery of such balance, is estopped from showing a claim against the original cre- ditor for the purpose of reducing the amount of the re- covery, although the assignment was taken for a precedent debt. Now in this case no application was made by the com- plainants, or on their behalf to the defendant, to ascertain the validity of the bond, or what was due upon it. He was not apprized of their intention to purchase the bond. MAECII TERM, 1856. 521 Mai-tin r. Righter. He was guilty of no act of commission or omission having any reference to the complainants' purchase. The pay- ment of the interest was a private dealing between the debtor and creditor without any reference to third per- sons, and affecting no one's interest but their own. The complainants may have been induced by it to run the risk of purchasing the bond, but they cannot say that they have been defrauded by the .defendant's conduct. The oond in the hands of a third person was prima facie evi- dence that the amount it called for was due and owing, and that it was a valid bond. The payment of interest upon it was prima, facie evidence that the balance was due. The complainants chose to take the bond upon the repre- sentations of the obligee, and not upon the faith of any- thing that was done by the obligor. The truth is the com- plainants did not take the bond relying upon anything that was said or done by the obligor. How did they know that the interest was paid on the 20th of October, 1849 ? They derived their information from the obligee alone. He brought to their attorney, written on a paper about two inches long and one inch wide, the following memo- randum in the handwriting of the defendant : " $73.79, Rec'd Oct. 20, 1849." They took his word for it that this was for interest on the bond. In looking at the conduct of the defendant, there can be no doubt that if application had been made directly to him, he would have denied his liability upon the bond, and insisted upon the release. No one can look at the case the pleadings, the evidence, and the circumstances, and not be satisfied that the procuring of the payment of the interest and of the memorandum referred to was a contrivance of Stephen "W. Kighter to ob- tain something frqin the defendant which would estop him from pleading the release against an assignee of the bond. This case is an extremely hard one for Stephen "W. Righter. It is evident that he has never received payment of the money intended to be secured by the bond and 2x* 522 COURT OF ERRORS AND APPEALS. Martin u. Righter. mortgage. But here is a solemn instrument, executed under his seal, by which he releases the obligee from the payment of that bond. This court has no right to set it aside .unless for fraud, or to control its legal effect unless some mistake can be shown. I can make no new principle of law or equity to relieve the particular hardship of any case. The appeal was argued by Whelpley and Dodd, for appellants. Chandler and Zabriskie, for respondents. The opinion of the court was delivered by POTTS, J. The object of the bill of complaint in this case was to have a certain release, executed by Stephen Righter to Michael Righter, on the 19th May, 1847, de- clared fraudulent and void, or to have it reformed so far as respects the bond and mortgage held by the complain- ants ; and for an injunction, &c. This bond and mortgage had been given by Michael to Stephen, in 1842, and Stephen assigned to the complain- ants, for full consideration, in 1849, there being then $1500 due on the bond. The release in question was a general release, and Mi- chael sets it up as a bar to a recovery upon the bond and mortgage. The complainants, in the first place, allege fraud in the inception of this release. Parol evidence is admissible for the purpose of establishing this allegation ; and by this means the facts and circumstances connected with the exe- cution of this paper were brought before the court. They were briefly these : Joseph C. Righter was the holder of certain drafts, drawn by Kitchel on parties at the South, and endorsed by Michael Righter. They had been protested, and were of doubtful value. He put these drafts MARCH TEEM, 1856. 523 Martin ix Righter. into the hands of Stephen Righter, to be collected for his, Joseph's, use ; and Stephen brought a suit upon them, in his own name, against Kitchel, the drawer. Michael Righter was deemed to be an important witness for Stephen in that suit ; and about the time of the trial, it seems to have been supposed that, to make him com- petent as a witness, it was necessary that Stephen should release him. The attorney who had charge of the suit filled up a printed form of a general release for Stephen to execute ; and after some objection, that it was too broad, which was obviated by the assurance of the attorney that he might safely sign it, he put his name to it. It clearly appears that the object of executing this release was to make Michael Righter a competent witness in the case of Righter v. Kitchel. No other purpose was expressed, or even hinted at, by anybody, either before or at the time of the 'execution. Michael never suggested any other use to be made of it. For that single purpose it was pre- pared by the attorney. For that purpose, alone, Stephen executed it. Michael undoubtedly knew wheruhe received it that that was the sole purpose for which Stephen executed and delivered it to him. He was present with Stephen at its execution, and this purpose was, beyond a question, clearly understood. Not only the pleadings and the evi- dence, but the circumstances of the case show this. In the first place, Stephen had no personal interest whatever in the suit against Kitchel. Ho was merely the nominal plaintiff. He held the drafts merely for collection. He had no earthly motive to execute such a paper beyond a desire to befriend the plaintiff in the suit. And, in the second place, the release was a boon bestowed on Michael / he was the party who received a favor, if anybody. It re- leased him from his liability as endorser on the drafts. It was valuable to him in that aspect of the case. Under these circumstances, it is impossible to conceive why Ste- phen should have intended to make a great pecuniary sac- rifice, to give up a bond and mortgage for a large amount 524 COURT OF ERRORS AND APPEALS. Martin v. Righter. for the purpose of inducing Michael to accept this instru- ment, or why Michael should have expected to obtain a large pecuniary compensation for consenting to be released from heavy legal liabilities. Michael Righter is probably the first person who ever gravely pretended in a court of justice that he had been paid $1500, or its equivalent, for consenting to be released from his endorsements on commercial paper. A strange idea seems to have got into this case, that this release had something to do with an interest Michael claims that he had in these drafts. Stephen's release had nothing to do with that. To effect that interest, if he had any, the release should have been executed by Michael to Stephen. In point of fact, Stephen's release was unneces- sary for the purpose of Michael's competency as a witness. It was his interest in the drafts, if he had any, that made him incompetent. And upon his own case, as he states it, he got a release from his liability as endorser on the drafts, got $1500 to boot by covering the bond and mortgage with the same release, and then went into court and testi- fied as a disinterested witness in a suit brought to recover the amount of the drafts of which he was the owner of one moiety at the time, and which interest, as far as appears, he has never in any way surrendered or compromised. The fact is established, there can be no doubt about it, that both Stephen and Michael, at the time of the execution of this release, understood perfectly that the object, and the sole object of it, was to make him, Michael, competent as a witness ; that no other purpose was intended or dreamed of by Stephen ; and Michael knew very well that if Ste- phen had had the most distant intimation that it was to be used to bar a recovery of the bond and mortgage, it would never have been given. Michael says, in his answer, it was " a general release from said Stephen "W. Righter to myself, of such force and effect as it purports to be, and I made use of that opportu- nity to insist upon and obtain it" MARCH TERM, 1856. 525 Martin v. Righter. Then he insisted upon it ; he was instrumental in ob- taining it. He insisted upon, he was instrumental in ob- taining an instrument without any consideration in the world, which operated as a bar to the recovery of a bond of some $1500, an honest debt due from him to his neigh- bor, without that neighbor having the. least idea that that was to bo the purpose of it he knowing that that neigh bor was to be deceived and cheated by its operation. What is fraud but the obtaining an advantage over an- other by deception, trick, or artifice ? To say that he stood by, was silent, and said nothing ; that it was the negli- gence of the attorney or the lack of caution in Stephen that induced the execution of such an instrument, is to stick in the bark of the transaction. He wlio intended at the time to tarn the transaction from an innocent to a frau- dulent purpose is a fraud doer. There was fraud in obtaining such a release for such a purpose. Upon this ground, in my judgment, the decree below should be reversed. I am of opinion there is another ground upon which the complainants below are entitled to relief upon the strength of the evidence in this case. Michael Righter was indirectly instrumental in inducing the complainants to take an assignment of the bond and mortgage. He went to Stephen before the assignment, on the 20th of October, 1849, and paid, or settled with him for $73.79 on account of interest due on this very bond, wrote a re- ceipt with his own hand for Stephen to sign for the.- amount, expressing that it was for interest due on this very bond held by Stephen against him, and gave to Ste- phen a paper on which he wrote " $73.79, Rcc'd Oct. 20, 1849," in order that he might endorse it on the bond ; he said nothing of the release ; and though he did not see or communicate with the complainants or their attorney himself, yet lie, by this means, authorized Stephen truth- fully to represent to the complainants' counsel that that amount of interest had been paid that day on the bond 526 COUET OF EEEOES AND APPEALS. Martin v. Righter. by Michael himself, and that he had thus virtually ac- knowledged his indebtedness for the balance of principal and interest remaining due. If this transaction had taken place in the presence of the complainants of thoir attor- ney, it would have estopped Michael from setting up the release as against the assignees of the bond and mortgage ; and the distinction between an act done in the presence of a party, by which he is induced to become a purchaser, and the same act done in the presence of a third party, and which, being truthfully represented to another, induces him, upon that information, to purchase, is a distinction without a difference. An " equitable estoppel," says Mr. Justice Carpenter, in Den. v. Baldwin, 1 Zab. 403, " rests upon the principle, that when any one has done an act or made a statement which it would be fraud on his part to controvert or impair, and such act or statement has so in- fluenced any one that it has been acted upon, the party making it will be estopped and cut off from the power of retraction. It must appear, first, that he has done some act or made some admission inconsistent with his claim ; secondly, that the other party has acted on such conduct or admission ; and thirdly, that such party will be injured by allowing such conduct or admission to be withdrawn." The decree of the court below is reversed. The following dissenting opinion was read by ELMEK, J. I am compelled to dissent from the opinion of the majority of the court. That the release which is sought to be avoided is sufficient in law to discharge the judgment and the collateral bond and mortgage held, when it was executed, by Stephen "W. Eighter, the re- 'easor, is not disputed. That Stephen must have under- stood that such would be its legal effect, appears to me unquestionable. It is expressly stated in the bill that he objected to it at the time as covering everything ; but was answered, that it was no matter, as it would be given up to him as soon as the trial was over. There is, therefore, MAECH TERM, 1856. 527 Martin v. Righter. cot the slightest ground for the charge that there was a ir-istake in point of fact. If it was true, which by no means appears, that he was mistaken as to its legal operation, and was ignorant that it discharged his claim on the bond and mortgage, he is entitled to no relief on that ground, it being his duty to inform himself, as he had ample oppor- tunity to do. If, as the bill states and the facts of the case tend to show, he relied on the expectation that it would be given up as soon as the trial was over, he jj precluded by his own showing from objecting to the Consequences of his own folly. It was not and could not be denied, that if the release was intentionally executed in so broad a form as to discharge the mortgage debt, so as to enable Michael Righter to become a witness, with the understanding that it should be afterwards surrendered, this was a fraud upon the law, and the court will not lend its aid to relieve the party from the consequences of hia own wrong doing. But the ground most relied on for setting aside the re- lease is, that it was procured by the fraudulent contrivance or concealment of Michael Righter, the respondent. If this charge is established, there can be no doubt of the power and duty of a court of equity to interfere, and prevent it from discharging an honest debt. In order to ascertain in what the fraud is alleged to have consisted, we must look to the bill of complaint, for the appellants must stand or fall by the case they have themselves presented. Much of the argument of their counsel went upon grounds not only not presented, but upon such as are inconsistent with the case made. The allegations of the bill are, not that Michael Righter was or claimed to be interested in the suit brought against Matthias Kitchel, in the name of Stephen W. Righter, as the endorser of the drafts, and not that the object of the release was to discharge that interest ; but that he alleged the drafts were given for the payment of a debt, half of which was due to him, and that he was still entitled to 528 COUET OF EEEOES AND APPEALS. Martin v. Righter. half of whatever should be collected on them ; and that Stephen TV. Eighter was advised by his attorney, that it might become necessary upon the trial to call and examine Michael Eighter, as a witness ; and that, as his testimony might be objected to on the ground of his interest in the event of the suit, it was necessary and proper to execute a release to him. It is also averred that when the release was filled up, Stephen objected to it, as being too broad and general in its terms, as covering everything ; whereupon Michael replied, that it was no matter, as the release should be given up to Stephen as soon as the trial was over. Also, that Michael Eighter well knew he had no interest in the suit, and that the attorney advised Stephen it was right and safe for him to sign the release, and thereupon, and in consequence of such promise as aforesaid, (that is to give it up) he executed it, and it was delivered to Michael Eighter, who was swDrn and examined as a witness in the cause. The bill also avers that Stephen TV. Eighter never re- ceived any consideration for the release, not even the nominal sum of one dollar, mentioned therein, and that it was never his intention to release the judgment, and that Michael Eighter never asked him to do so, or intimated to him, in any way, that he wished him to execute the said re- lease for that purpose. In response to these allegations, the answer of Michael Eighter states, that he was entitled to one half of what- ever should be recovered on the drafts, and states how his interest arose. It states that, having this interest, his intention was to appropriate the same towards the pay- ment of his indebtedness to Stephen, and that he so in- formed him ; that when he was informed the drafts were in the hands of Stephen, and it was intended to sue Kitchel on them, he expressed his disapprobation to Stephen, and the suit was brought without his approbation or consent ; that the suits remained pending for about two years : and being asked by John S. Hager, the attorney for the plaintiff, what was his interest in the drafts, he in- MARCH TEEM, 1856. 529 Martin v. Righter. formed him ; and that he would not be sworn on said trial as a witness until he had something to show for said drafts, and an equivalent for his interest therein ; and the attor- ney told him it would be necessary he and Stephen should come down to his office before said trial, and make an ar- rangement of those matters ; that within a few days Ste- phen came to him, and desired him to go to Morristown upon a day he fixed ; that he did go there on that day, and at the office of the attorney met Stephen, and in his presence told the attorney the circumstances relating to the drafts, and expressed his dissatisfaction with the suit against Kitchel, and fear that the amount thereof would be lost in that way, and declared that he would not con- sent to be sworn upon said trial, or have anything to do with said suit, unless his said interest in said drafts was divested, and the same accounted for to and settled with him by the said Stephen, and that the one equal half part of said drafts was nearly equal to the amount then owed by him to said Stephen, and that the attorney told Stephen it would, according to the agreement and the circumstances there stated, be proper and necessary for him to execute a release, and thereupon the attorney filled up a printed release, and the same was executed by the said Stephen ; that it was delivered and put into his pocket, and that in a few minutes afterwards, at the re- quest of the attorney, he handed it back to him, to be re- turned in court, which was afterwards done. He denies that he ever promised to give it up as soon as the trial was over. An attempt was made to disprove the answer, but it entirely failed. The weight of the evidence is, that Mi- chael Righter was in justice entitled to one half of the drafts. It is not stated in the bill or answer, nor does it distinctly appear by the evidence, what was said by Mi- chael Righter when he was sworn as a witness and pro- duced the release in regard to his interest in the drafts. The only possible mode in which the release to him by VOL. IL 2 Y 530 COUET OF ERRORS AND APPEALS. Martin v. Righter. Stephen could operate to discharge his interest in the event of the suit, was by his receiving it as an equivalent for that interest. Having done this, and being actually sworn, he was precluded from setting up that interest af- terwards, whether he was in fact questioned as to his in- terest or not. Unless the release is allowed to operate in discharge of Stephen's judgment against him, the result would be that he was entrapped into an act which cut him off from any right to what might be recovered of Kitchel, or of the other parties to the drafts, without any equivalent whatever. It is not necessary, however, to the Ajalidity of this release that a consideration should be shown. If it clearly appeared that there was none, that would no doubt be a strong reason for inferring a mistake or fraud. But all the circumstances combine to show that the very consideration the bill states was pretended and was false, in reality existed, and that Stephen "W. Righter, with full knowledge of the facts, or at least with ample opportunity to ascertain the facts and the law, and acting under the advice of his counsel, thought it a sufficient reason for signing and delivering a general release of all his claims against Michael, that Michael should consent to be a witness for him, and, if needful, declare himself to have no interest in the suit. Such- a consideration is perfectly valid if the parties acted in good faith, and there is no evidence that Michael did not. It does not appear that he instigated the suit, or that he volunteered to be a witness. The contrary is distinctly averred, and there is nothing to disprove the answer in these particulars. That Michael Righter was afterwards willing to have a settlement of what his proper share of the money due on the. drafts was, and pay Stephen the difference, the evi- dence shows, and he does not deny. But it is not pre- tended that this is a sufficient ground for interfering with the legal effect of the release. It is not alleged that there was any miscalculation or misapprehension as to the real amount due on the judgment. That it was highly impru- MAECH TEEM, 1856. 531 Martin v. Righter. dent in Stephen to execute such a release, now that the suit against Kitchel has failed, is very obvious. But courts of equity cannot relieve parties irom the unexpected consequences of their voluntary acts, unless it is made very satisfactorily to appear that they were the victims of a mis- take they are not themselves accountable for, or of fraud on the part of those who claim against them. I am there- fore of opinion that the release stands wholly unimpeached and in full force. The appellants however insist, that being assignees for a valuable consideration without notice of the release, and having been induced to take the assignment by the acts and admissions of Michael Eighter, he cannot in good faith set up the release, as against them, whatever may be its effect as between him and Stephen "VV. Eighter. An estoppel in pais is stated by Judge Carpenter, in the case of Den v. Baldwin, 1 Zdb, 403, to be as follows : " This equitable estoppel rests upon the principal, that when any one has done an act or made a statement which it would be fraud on his part to controvert or impair, and such act or statement has so influenced any one that it lias been acted upon, the party making it will be estopped and cut off from the power of retraction. It must appear, first, that he has done some act or made some admission inconsistent with his claim ; secondly, that the other party has acted upon such conduct or admission; and thirdly, that such party will be injured by allowing such conduct or admission to be withdrawn. It is intended that in good conscience and honest dealing he ought not to be per- mitted to gainsay them." This statement of the doctrine may be accepted as correct; but it does not profess to contain all the explanations of which it is susceptible. In most cases, it will be important to inquire how or to whom the acts or admissions were made. The object is to pre- vent fraud. Unless, therefore, the acts or admissions were so made as to show a design to produce a false impres- t-ion, or were of such a kind that such would bu their 532 COUET OF ERRORS AND APPEALS. Martin v. Righter. natural result, there would be no fraud to prevent. No case was produced, nor do I suppose one can be found, that goes farther than this. Where it i& said the admis- sions must be acted on, it is meant, as the authorities relied on show, that they induced the other party to do what otherwise he would not have done. It is to be noticed, in the first place, that the appellants are themselves chargeable with great negligence in not applying themselves, or by their agent, to Michael Righter, and thus ascertaining whether he- acknowledged the debt. Judgments and bonds and mortgages are always taken by an assignee, as they were bound to know, and as their counsel did know, subject to whatever defence the maker had as against the assignor. In this case they were about to accept the assignment of a judgment and collateral bond and mortgage payable on demand and more than seven years old. Had their agent applied to Michael, and he had stated to him that he held the release, and claimed that it discharged the debt, but nevertheless, inasmuch as the amount of his interest in the drafts was less than the amount due on the judgment, or for any other reason, he was willing to pay, and did pay the interest appearing to be due, to take a receipt for it as so much due, and allow such payment to be endorsed on the bond, it cannot be pretended the assignees would have stood in any better situation than Stephen did. Instead of applying directly to Michael, it appears the appellants thought proper to act upon the faith of the statements made by Stephen, and it is urged, that to the extent that Stephen's state- ments were true they had a right to do so. But did Ste- phen tell them the whole truth ? If he did, he told them that he had previously placed the bond and mortgage in the hands of an attorney to collect the interest ; that the attorney applied to Michael accordingly, and he produced the release as a complete discharge, and refused to pay, and thereupon the attorney handed them back to Stephen, and informed liim of what had taken place. By making MARCH TEEM, 1856. 533 Martin v. Righter. Stephen their agent, they became chargeable with all the knowledge he had. Had the appellants gone to Michael, and informed him that they proposed to take the assignment, he would have been bound to disclose his real position. But he was not bound to inform Stephen of what he already knew, and cannot be charged with doing an act inconsistent with his claim because he said nothing then about the release. Unless the admission made to Stephen would enable him to enforce the judgment, it could place his assignees in no better position. The receipt drawn up by Michael and signed by Stephen was retained by Michael, and all that Stephen had to show to the counsel of the appellants was the memorandum " $73.79, Eec'd Oct. 20, 1849," which of itself indicated nothing, and was not an act on which the assignees had any right to rely or upon which they did rely. They did not take the securities upon the faith of this paper, but upon the faith of Stephen's representa- tions, which were only a part of the truth. There was, in my opinion, no act or admission made by Michael in- consistent with his claim to hold on to the release, and his willingness to settle with Stephen the difference be- tween his interest in the drafts and the amount due on the judgment. Equity, it was insisted, carries this species of estoppel further than courts of law, and we were referred to several cases contained in Batten on Specif. Per. 88.* The author states the principle to be deduced from them as follows : " When a person has tacitly encouraged the act being done, or has consented to it, he shall not exercise his legal right in opposition to that consent." That Michael Righter did not consent to an assignment lie never heard of is clear. Did he tacitly encourage it ? This, in the nature of things and according to the cases, he could only do by keeping back something he was bound to communicate. *7 Law Lib., 69 Rep. 2Y* 534: COURT OF ERRORS AND APPEALS. Martin u Righter. He did not do this, for Stephen W. Righter, with whom alone he had intercourse, knew all about the release. The only act, then, that he can be charged with doing is the putting on paper the figures indicating the amount to be credited, which would not of itself induce any man of or- dinary prudence to rely on the securities, and. which could not of itself have influenced the appellants to do so. But besides these considerations, it appears that the ap- pellants were careful to take a covenant from Stephen "W. Righter, that he would guarantee the payment of the money, and pay all the costs of attempting to recover it in case of failure. It is not alleged in the bill, nor does it appear in the proofs, that Stephen is not perfectly able to fulfil these covenants. If he is, the appellants will not be injured by the release, and thus an essential fact neces- sary to estop Michael Righter, is wanting. It must be borne in mind, in applying the doctrme of equitable estoppels to this case, that it must be assumed that the release is a valid instrument, and fully bars the claim on the judgment and other securities, as against Stephen "W. Righter. The doubt about the original exe- cution of the release, if doubt there be, can have no right- ful influence upon the question, whether Michael Righter is precluded by his subsequent conduct from setting it up against the assignees. Had it appeared beyond dispute that it was given for a full consideration, and that the con- sequence of avoiding it would be to take the money a second time out of Michael's pocket, the estoppel would probably not have been insisted on, or if it had been would have found but little favor. And yet this is the as- pect in which we are bound to look at this question. There can be no doubt that this doctrine, rightfully ap- plied, is calculated to promote just and honest conduct, and that courts of equity and of law ought carefully to maintain it. But we are asked, in my judgment, to ex- tend it beyond its just limits and beyond any precedent in England or America. I am not willing to do this for MAECH TEEM, 1856. 535 Adams v. Hudson County Bank. the sake- of saving a case of seeming hardship. In my opinion the decree should be affirmed. Decision reversed by the following vote : For affirmance CHIEF JUSTICE, Judges ELMER, EISLET, VBEDENBURG, OGDEN. For reversal Judges ARROWSMTTH, CORNELISON, HAINES, HDTLER, POTTS, EYERSON, VALENTINE, WILLS. CITED in Bush, <& Howard v. Cushman, 12 C. E. Gr. 134 ; Phillipsburgh Bank v. Fulmer, 2 Vr. 56. Between EUSSEL "W. ADAMS and JOHN McGRAW, appel- lants, and THE HUDSON COUNTY BANK, GEORGE M. COF- FIN, WILLIAM L. HANFORD, and JACOB YOST, respondents. The general rule is, that in order to obtain the dissolution of an injunction, all the defendants must answer the equity of the bill. But the qualification of the rule is, that it is enough if those defendants answer upon whom the gravamen of the charge rests. Parol evidence is not admissible to show that the consideration passing be- tween the parties, and the terms upon which a conveyance is expressed to have been made, are totally different and contradictory to the deed itself. The American authorities are more liberal than the English, in admitting parol testimony for some purposes relating to the consideration expressed in a deed. This appeal was taken from an order dissolving an in- junction issued to restrain proceedings at law. The motion to du solve was argued before the Chancellor, by Mr. Frelinghuyficn, and Mr. Bradley, for the complainants, by Mr. Randolph, for the Hudson County Bank, and Mr. Gil- christj for the other defendants. On the sixth day of February, 1856, it was ordered that the injunction be dissolved with costs. From tins order an appeul was taken. The Chancellor furnished the court with the following opinion, as containing the reasons for his decree. 536 COURT OF ERRORS AND APPEALS. Adams v. Hudson County Bank. WILLIAMSON, C. Coffin and Hanford, two of the defend- ants, were indebted to the Hudson County Bank, in a sum exceeding $20,000. The bank held commercial and busi- ness paper of Coffin and Hanford, which had from time to time been deposited to their account in the bank. They were in failing circumstances, and in order to secure the bank their debt, they executed to the bank a bond and mortgage, covering their real estate in Jersey City,, for the sum of seventeen thousand dollars, and also confessed a judgment for the sum of six thousand dollars. At the time of confessing the judgment, an agreement in writing was executed by the bank, by which, among other things, it was stipulated and agreed that all moneys that should be paid to the said bank by any person liable upon the said commercial paper held by the bank, amounting to about $23,000, and all moneys paid to the bank by the said Coffin and Hanford should be credited upon the said judgment, and not upon the mortgage, until the said judgment was paid ; and that the bank should be at liberty to collect the moneys due upon the said paper, and apply them to the said judgment, and to no other purpose, until the said judgment should be paid. The real estate mortgaged to the bank was subject to other mortgages, which, together with the bank mortgage, amounted to about $31,000. Coffin and Hanford were also indebted to one of the complainants, Russell W. Adams, in about the sum of ten thousand dollars. To pay this indebtedness, Coffin and Hanford and their wives, on the 19th day of Novem- ber, 1853, executed and delivered to Adams their war- ranty deed, in fee simple, for the same real estate in Jersey City mortgaged, as aforesaid, to the bank. In the premises of the deed, the consideration is set out as $10,000, following the description of the parties. The Jidbendum and tenedum clause is as follows : to have and to hold the above granted, bargained, and described premises, with the appurtenances, unto the said party of the second part, MARCH TERM, 1856. 537 Adams v. Hudson County Bank. his heirs and assigns, to his and their own proper use, benefit, and behoof for ever, subject nevertheless to several mortgages on the same premises, held by different parties, the amount payable upon which is in the aggregate up- wards of thirty-one thousand dollars, and also subject to a certain judgment, for the sum of six thousand dollars, held and owned by the Hudson County Bank, in Jersey City aforesaid. Among the usual covenants is one that the premises "are free, clear, discharged, and unencum- bered of and from all former and other grants, titles, charges, estates, judgments, taxes, assessments, and encum- brances, of what nature or kind soever, except as aforesaid" Adams has since conveyed one undivided .half of the prop- erty to John McGraw, the other complainant. The Hudson County Bank were about enforcing their judgment and execution against the real estate mentioned in the deed and the mortgage. The complainants exhibit their bill to enjoin them. The equity of the bill is here. It alleges, that when Coffin and Hanford executed and delivered their deed to Adams, they agreed, as part consideration for the extin- guishment of the debt they owed him, that Adams should have the benefit of the said securities held, as aforesaid, by the Hudson County Bank, and to have the amount which the bank should receive upon them credited upon the judgment ; it alleges that the bank has received the Binn of five thousand and fifty-four dollars upon the se- curities, which they refuse to credit on the judgment, but have applied to the general indebtedness of Coffin and Hanford to the bank. There is no difficulty between the bank and Coffin and Hanford. After the deed was given to Adams, Coffin and Hanford served a written notice upon the cashier or presi- dent of the bank, to the effect that they had conveyed the property subject to the judgment, and that the bank must preserve the lien of the judgment upon the property for the benefit of Coffin and Ilanford, and not appropriate 538 COURT OF ERRORS AND APPEALS. Adams v. Hudson County Bank. the assets in their hands to the satisfaction of the judg- ment. The whole equity of the bill is denied very fully and circumstantially by the answers, and I think the circum- stances of the whole transaction are such, as disclosed by the bill itself, as entitle the defendants to the full benefit of their denial of the complainant's equity. The allegation of the bill is, that it was part of the con- sideration between Adams and Coffin and Hanford that Adams should have the benefit of the securities held by the bank, to be applied to the judgment. This is in direct contradiction to the terms of the deed, which makes the mortgages and the judgment part of the consideration. This is not denied by the bill. It admits that the encum- brances upon the property, including this judgment, did not amount to the full value of the property, and that Adams was to pay these encumbrances, but insists he was to have the benefit of the securities to be applied to satisfy, as far as they would, the judgment. Why this agreement, so important to Adams, was not mentioned in the deed, or why it was not reduced to writing, is not in any way ex- plained. Coffin and Hanford deny that there was any such agreement. They state circumstantially what the trans- action between the parties was, and their statement is sus- tained by the writings between them. There io no fraud alleged. The parties rely upon the agreement. The defendants are entitled to have this H/ junction dis- solved, on the ground that the equity of the lull is deniovl. They are entitled to a dissolution on another ground, that it is not competent for the complainants to p rove that they were to have the benefit of the securities to extinguish the judgment. This is in direct contradictic n to the terms of the deed. The deed conveys the projerty expressly subject to the judgment, and without any qualification. The judgment is made a part of the consideration of the deed. The agreement set up by the complainants is in direct contradiction it is, that the property was only to MARCH TERM, 1856. 539 Adams v. Hudson County Bank. be subject to the judgment conditionally, and that the grantee was to have the benefit of the grantor's property to pay it ; and under that agreement the complainants now claim a credit upon the judgment of $5054. There is no principle upon which parol evidence of such a char- acter is admissible. It is true the American authorities are more liberal than the English in admitting parol tes- timony for some purposes relating to the consideration expressed in a deed. It has been held that the deed is not conclusive as to the amonnt of the consideration ex- pressed, and that although the deed acknowledges the receipt of the purchase money, the grantor is not thereby estopped from showing that it has not been paid. . But this is as far as the authorities have gone. If the agreement alleged to have been made in this case is competent to be proved, then any essential part of a deed may be varied or contradicted by parol. Here the attempt is not to show that the amount of the consideration money is different from that recited in the deed, but that the consideration passing between the parties, and the terms upon which the conveyance is expressed to have been made, are to- tally different, and contradictory to the deed itself. The deed makes the property subject to the judgment abso- lutely, the alleged agreement only conditionally. The injunction must be dissolved with costs. The Chief Justice delivered the opinion of the Court of Appeals. GEEEN T , C. J. This appeal is taken from an order dis- solving an injunction issued to restrain proceedings at law. The order is based by the Chancellor on two grounds : 1. Because the equity of the bill is denied by the answers. 2. Because, on the case made by the complainants in the bill, they are not entitled to relief. If either of these grounds is well taken, the order is right, and should be affirmed. 1. The answer of Coffin and Hanford, two of the de- 540 COURT OF ERRORS AND APPEALS. Adams v. Hudson County Bank. fendants, contains a full and explicit denial of the entire equity of the bill. If the answer be true, it is clear that there is no equity in the complainant's case. There is nothing in the answer sufficient to discredit it or to de- prive it of its efficacy as an answer. Nor does the weight of the evidence contained in the affidavits (admitting them all to be eompotent) make so clear a case for the complainants as to deprive the defendants of the benefit of their answer. But it is objected that the Hudson County Bank have not fully answered the equity of the bill. The general rule undoubtedly is, that in order to obtain the dissolution of an injunction, all the defendants* must answer the equity of the bill. But the qualification of the rule is, that it is enough if those defendants answer upon whom the gravamen of the charge rests. Vleit v. Lowmason, 1 Green's Ch. R. 404 and note ; Stoutenburgh, Day & Co. v. Peok,, 3 Green's Ch. 12. 446. In this case the gravamen of the charge rests on Coffin and Hanford, who have fully an- swered. The answer of the bank is full, so far as it re- lates to matters within their knowledge. This disposes of the appeal. But the design of the ap- pollant was probably to test the opinion of this court upon the second point upon which the order is based ; for it is obvious that if the Chancellor is right upon this point the case is finally disposed of. This renders it proper that the second ground of the Chancellor's opinion should also be examined. 2. Are the complainants entitled to relief upon the case made by the bill ? The complainants are the grantees of certain real estate in Jersey City purchased of Coffin and Hanford. At the time of the purchase and conveyance of the land, the Hudson County Bank held a judgment in the Supreme Cturt for $6000 against the grantors, Coffin and Hanford, to which, independent of any special agreement, the land was liable. At the time of the conveyance to Adams, the MAKCH TEEM, 1856. 541 Adams v. Hudson County Bank. complainant, then existed an agreement between the bank and Coffin and Hanford that the bank should apply the proceeds of certain collateral securities, held by the bank exclusively, toward the liquidation of the judgment. The bill charges, that in the contract for the sale of the land, Coffin and Hanford agreed that the purchaser should have the benefit of all those collaterals so left with the bank and insists that they should in equity be applied in liquida- tion of the judgment. The land is conveyed in fee " subject nevertheless to several mortgages on the same premises, held by different parties, the amount payable upon which is in the aggregate upwards of thirty-one thousand dollars, and also subject to a certain judgment for the sum of $6000, field and owned by the Hudson County Bank in Jersey City aforesaid" The complainants insist that, by virtue of a parol agfee- greement between the grantors and grantee at the time of the purchase, they are entitled to have the land relieved, in whole or in part, from the lien of that judgment. The answer is, that the agreement attempted to be set up is in direct contradiction of the terms of the grant. And it is difficult to see how the effect of the answer is to be evaded. The grantors convey the land in clear and ex- press terms subject to the judgment. The bill seeks to re- lieve the land of the encumbrance of the judgment by force of an alleged parol agreement. It is objected that the purchase of land subject to en- cumbrances involves no covenant on the part of the grantee that he will pay the encumbrances. The rule certainly is, that the purchase of an equity of redemption does not render the purchaser personally liable for the encumbrances on the property. There is in such purchase no contract, express or implied, that the pur- chaser assumes the payment of the encumbrances as a per- sonal liability. Stevenson et al. v. Black, Sancton's R. 338 ; Tichenor v. Dodd, 3 Greeris Ch. P. 454. But the question in this case is not whether the pur- VOL. n. 2 z 542 COUKT OF ERRORS AND APPEALS. Adams v. Hudson County Bank. chaser is personally liable to pay the judgments, but whether, by the terms of the grant, the land is subject to the encumbrance. That it is so by the express language of the deed is too clear to admit of controversy. It is further objected, that though the land be liable to the lien of the judgment, it is liable contingently only, viz. so far as the judgment should remain unsatisfied under the arrangement between the grantors and the bank, or so far only as the judgment might, under the stipulation of the bank, constitute a legal lien on the land ; and it is insisted that, by virtue of the agreement between the grantors and the bank, the judgment was not a lien on the land. But that is not the effect of the agreement. By operation of law, the judgment is a lien on real estate, and there is nothing in the agreement which invalidates the lien. The agreement of the bank is, that the execution shall be levied only on certain specified personal property, but it is entirely silent as to the lien of the judgment upon the real estate. That lien exists without the levy of an execution. But it is said that at the time of the conveyance there was in the hands of the bank funds or securities nearly sufficient to extinguish the judgment, and that the bal- ance, alone, can constitute a lien on the land. If at the time of the conveyance the securities had been collected, and applied by the bank in 'part satisfaction of the judg- ment, the argument might be sound. But the securities, or the avails of the securities, still continued the personal property of the grantors. The judgment remained un- satisfied in whole or in part. And if the funds of the grant- ors are to be applied to extinguish the judgment exist- ing at the time of the conveyance, in what sense can it be said that the land was conveyed subject to the judg- ment? The plain and obvious meaning of the deed is, that the grantees should take the land with the encum- brance of the judgment. How can it be held that the are to pay the judgment out of their own funds MARCH TEEM, 1856. 543 Williams v. Carle. without conflicting directly with the terms of the deed and the obvious intention of the parties to the instrument ? The decree must be affirmed. Decision affirmed by the following vote : For affirmance CHIEF JUSTICE, Judges AREOWSMITH, RlSLEY, CORNELISON, HAINE8, R.YEBSON, ELMER, OGDEN, VREDENBURGH, POTTS, VALENTINE, WILLS. For reversal None. Between EBENEZER S. WILLIAMS, administrator of Sarah Williams, deceased, appellant, and DANIEL CARLE, ad- ministrator of Ann Carle, deceased ; DANIEL C. WIL- LIAMS, THEODORE WILLIAMS, and SARAH ANN WILLIAMS, respondents. If a woman, during the course of a treaty of marriage with her, makes, without notice to the intended husband, a conveyance of any part of her property, though good prima facie, it may be set aside because affected with that fraud. In the case of actual fraud, a court of equity will not refuse relief on account of lapse of time where the bill was filed with great promptness after the supposed discovery of the alleged fraud was made. If a woman, on the eve of her marriage, rightfully placed a part of her estate in her sister's hands, in trust for the children of her intended marri- age, and there were no children of the marriage, the fund belongs to the husband on the death of the wife. Where there were children, who, as cestui qae trusts, disclaimed title, and renounced all right to the fund, and declined to accept it, the fund belongs to the husband, as administrator. The filing of a cross bill does not, as a matter of course, stay the proceeding! in the original suit. If the party filing the cross-bill wishes to stay the cause upon the originial pleadings, he should give notice, and apply to the court for an order to that effect. Where the crons-bill was not filed until a year after the filing of the original bill, and after the proofs had been taken, and the original caue noticed for 544 COURT OF ERRORS AND APPEALS. Williams v. Carlo. hearing, and a proper decree could be made without the necessity of a cross-bill, the Chancellor would not delay the hearing on the original bill on the ground that the plaintiffs had not answered the cross-bill. By WILLIAMSON, Chancellor. Where a cross-bill was filed by two of the defendants, who had put in their answers disclaiming any interest in the original suit, and the cross-bill alleged that the answers were filed through mistake, &c., the pleadings were incongruous and irregular: the proper course is to apply for leave to withdraw their answers. By WILLIAMSON, Chancellor. This cause was heard at May term, 1855, of the Court of Chancery. Sarah Williams, the wife of the complainant, died in the year 1834. The complainant took out letters of administra- tion upon her estate. He exhibited this bill against Daniel Carle, as the administrator of Ann Carle, who was the sister of Mrs. Williams, and against his three children by his said wife. The bill alleges, that while the complainant was in treaty of marriage, his intended wife, Sarah, without his knowledge or consent, in contemplation of her expected marriage, placed seven hundred dollars in the hands of Ann Carle, her sister, in trust for any children she might have by her marriage ; that Ann Carle died in the year 1852, having this money in her possession, with a large amount of accumulated interest ; that the complainant did not make the discovery of this fraud upon his marital rights until after the death of Ann Carle, it was revealed a,nd made known by her administrator. The prayer of the bill is, that he may be declared entitled to seven hundred dollars and interest, and that Daniel Carle, as the personal representative of the trustee, may be decreed to pay it to him. Jacob Vannatta and E. W. WJielpley, for the complainant, cited Newland on Con. 424 ; Howard v. Hooper, 2, Chan. 42 ; Taylor v. Pugh, 1 Hare 608 ; Goddard v. /Snow, 1 Russ. 485 ; Whites Lead. Ca, in Eq. 313 ; Eal v. Montgo- mery, 2 Ves. Jr. 193 ; Carlton v. Earl of Dorset, 2 Vern. IT ; Sbratchmore v. Bowes, 1 Ves. Jr. 22 ; 9 B. Monroe ; 5 Ire- MARCH TERM, 1856. 545 "Williams v. Carle. Jell 163 ; 6 /J. 546 ; 1 Roper, H. & W. 163 ; Hill on, Trustees 162. Jos. Annin and J. W. Miller, for defendants, cited Clancy 455 ; Bligkfs cast, freeman's Rep. 92 ; Hunt v. Matthews, 1 Vern. 408 ; King v. Cotton, 1 P. W. 674 ; 2 7^. 264 ; 2 6fo*? 28 ; Newlantfs q. 429 ; Story 273 ; 1 Yes. & Beam 354 ; 1 Z>m. 26. At the term of October, 1855, a final decree was made in the Court of Chancery, by his Honor Benjamin Williamson, whereby it was adjudged that the complainant was not en- titled to the relief sought and urged for by him, and that his bill should be dismissed with costs. From this decree an appeal was taken. The Chancellor furnished the court with the following opinion, as containing the reasons for his decree. WILLIAMSO'N, C. The defendants' counsel when this cause was moved for final hearing, raised a preliminary question upon the pleadings. They objected to the hearing of the cause, on the' ground that the complainant had not answered the cross-bill filed by two of the defendants', and insisted that the original cause could not be heard until the case made by the cross-bill was ready for a final hearing. The filing of a cross-bill does not, as a matter of course, stay the proceedings in the original suit. If the party filing the cross-bill wishes to stay the cause upon the origi- nal pleadings, he should give notice, and apply to the court for an order to that effect. "VVe have no rule of the court regulating the proceedings; and the only statute upon the subject is that which declares, that " if a cross- bill be exhibited, the defendant to the first bill shall an- swer thereto before the defendant to the cross-bill shall be compelled to answer such cross-bill." In all other respects, the proceedings are governed by the English practice. This practice will be found correctly stated In 2 z* 546 COUKT OF EPJIORS AND APPEALS. Williams v. Carle. the case of White v. Buloid, 2 Paige 164. If the proceed- ings in the original suit are stayed until both causes are ready for hearing, then the complainant in the cross-suit may have an order that both causes may be heard at the same time. This mode of proceeding is necessary, in order to prevent the original complainant from being unneces- sarily delayed in his cause. In the present case, the origi- nal bill was filed in May, 1854. The cross-bill was not filed until May, 1855, after the proofs had been taken, and the original cause noticed for hearing. It is true, upon the hearing of a cause, the court will in some instances, of its own motion, order a cross-bill to be filed, as where such pleadings are indispensable in order that a proper decree may be made to settle the matter in controversy. In such case, the original suit must of necessity be delayed. I do not, however, see any necessity for a cross-bill for any such purpose here. If the complainant can sustain the case made by his bill, he is entitled to a decree against the defendants ; and none of the defendants, if the complainant succeeds, are entitled to any collateral relief. If the complainant fails, with the view I take of the case, the defendants are entitled to no relief upon the trust set up by them in their cross-bill. There is another objection to this cross-bill. It was irregularly exhibited. It is filed by two of the defendants, who had put in their answers disclaiming any interest in the original suit. They now come with their cross-bill, alleging that they filed their answers improvidently and through mistake, and under a misapprehension of their rights. Their proper course was to have applied to the court for leave to withdraw their answers. The court might have granted leave upon such terms as, under the circumstances, it might have been proper to impose. The pleadings are now irregular and incongruous. By one pleading they deny a trust, and disclaim any interest in it, by another, they set up the trust, and ask that it may be established. MAECH TERM, 1856. 547 Williams v . Carle. I shall proceed to examine the case, as it is presented by the pleadings and proofs in the original cause. .The complainant is the administrator of his deceased wife, and the case made by his bill is this : that he was in expectation of a considerable fortune upon the death of his father; that Sarah Carle was entitled to a large property from the estate of her deceased father, and also from that of a deceased brother; that these expectations made a marriage between himself and Sarah Carle a suit- able one, and with other considerations, induced him to propose their connection by marriage ; that after their en- gagement and agreement to marry, Sarah Carle, without his consent or knowledge, and to deprive Mm of the benefit of her property, and in fraud of his marital rights, placed in the hands of her sister, Ann Carle, the sum of seven hundred dollars, for the use and benefit of any chil- dren the said Sarah might have; that the marriage was consummated in 1819 ; that they had three children, who are all of age and now living; that his wife died in 1834; that Ann Carle, the alleged trustee, died in 1852, and her estate was administered upon by one of the defendants, Daniel Carle ; that in December, 1853, the complainant for the first time discovered, through the admission of Daniel Carle, the disposition of the seven hundred dol- lars. The complainant prays that Daniel Carle, the ad- ministrator of the trustee, Ann Carle, may be decreed to pay him the seven hundred dollars, with the interest that lias accumulated. The three children of the complainant, with Daniel Carle, the administrator of Ann, are the defendants in the suit. The three children filed their disclaimers. Daniel Carle, by his answer, admits all the facts charged in the bill, except that of any-sum of money having been placed by Sarah Carle in the hands of her sister Ann for any such purpose as that mentioned in the bill. Of this he denies all knowledge, information, or belief. The defendants, in resisting the complainant's claim, 548 COURT OF ERRORS AND APPEALS. Williams v. Carle. object to his maintaining this suit, on account of the length of time which has intervened between the period when the alleged fraud is said to have been committed and the filing of the present bill. There is no objection on account of the lapse of time. The bill charges actual fraud ; and as was said in MicJioud et aL v. Girod et al. (4 Howard 561), " in the case of actual fraud, no case can be found in which a court of equity has refused to give re- lief within the lifetime of either of the parties upon whom the fraud is proved, or within thirty years after it has been discovered or become known to the party whose rights are affected by it." The present bill was filed with great promptness after the supposed discovery of the alleged fraud was made. The first intimation the complainant had of any fraud was in December, 1854, and in less than six months after, this suit was instituted. Nor is there any doubt as to the law's affording the complainant ample redress under the circumstances, if the fact is established that Sarah Carle placed the money in the hands of her sister Ann at the time and for tlie pur- pose alleged. The rule is kid down by Lord Thurlow, in the case of the Countess of Stratckmore v. Bowes (1 Ves. Jr. 22). " A conveyance made by a wife, whatsoever may be the circumstances, and even the moment before the mar- riage, is prima facie good, and becomes bad only upon the imputation of fraud. If a woman, during the course of a treaty of marriage with her, makes, without notice to the intended husband, a conveyance of any part of her prop- erty, I shall set it aside, though good prima facie, because affected with that fraud." There is some conflict of au- thorities as to whether the mere fact of concealment, alone, on the part of the woman is sufficient to consti- tute a fraud upon the intended husband's marital rights ; and whether, in addition to the concealment, it must not be shown that the intended husband knew the woman to be possessed of the property which she disposed of. The English and American cases will be found collected in MAKCH TERM, 1856. 549 Williams v. Carle. the notes to the case of Stratchmore v. JBowes (1 Leading Cases in q., Hare & Wallace's notes, 338). In the case of Goddard v. Snow (1 Buss. J 485), a woman ten months be- fore her marriage, but after the commencement of that intimate acquaintance with her future husband which ended in marriage, made a settlement of a sum of money, which he did not know her to be possessed of ; the mar- riage ceremony took place, she concealing from him both her right to the money and the existence of the settle- ment : ten years afterwards she died ; and after her death he filed a bill to have the money paid him. It was held that the settlement was void, as being a fraud on his marital rights. Although some dissatisfaction has been expressed with this case, and it was said by Lord Brougham, in St. George v. Wake (1 Myl. & 1. 622), that the principle was carried further in Goddard v. Snow than in any other case, I think the case was decided upon the right principle. In Taylor v Pugh (1 Hare 608), it was argued by the defend- ant's counsel, that as the defendant was ignorant of his wife's having any property, and as she had practised no actual deception upon him, a court of equity ought not to interfere ; but the Vice Chancellor declared the argu- ment unsound, and approved the rule, as stated by Roper, that " deception will be inferred if, after the commence- ment of the treaty for marriage, the wife should attempt to make any disposition of her property without her in- tended husband's knowledge or concurrence." In England v. Downs (2 Beav. 524), the master of the roUs says, " The non-acquisition of property, of which (the husband) had no notice, is no disappointment, but still his legal right to property actually existing is defeated, and the vesting and continuance of a separate power in his wife over pro- perty which ought to have been his, and which is with- out his consent made independent of his control, is a surprise upon him, and might, if previously known, have induced him to abstain from the marriage." The present case is free from all difficulty in respect to 550 COUKT OF ERRORS AND APPEALS. Williams v. Carle. these rules, about which there appears some difference in the minds of learned judges. It is admitted that the com- plainant knew that his wife was entitled to a portion of her deceased father's and brother's estate, and that during the treaty of marriage, he expected that upon its consum- mation he would, as her husband, be entitled to this pro- perty. It is perfectly clear that if any of this property was disposed of without his consent during the treaty of mar- riage his just expectations were disappointed, and that he was fraudulently deprived of his marital rights. The counsel of the defendants further insisted, that the disposition which is alleged to have been made of the property, being for the benefit of the children of the pro- posed marriage, the trust was a meritorious one, and such as a court of equity will not disturb. The cases of Hunt v. Matthews (I Vern. 408), and of King v. Cotton (2 P. W. 674:), were cited as sustaining the rule, that a settlement by a widow upon her children by a former marriage, even if made during the treaty for a second marriage without the consent or knowledge of her intended husband, is valid. It was argued that a settlement for the benefit of children of the contemplated marriage is equally merito- rious. But I cannot understand npon what just principle a trust in either case can be declared valid by a court of equity. In Hunt v. Matthews, the court is reported to have said, or rather thought, for that is the word used, that a widow might with a good conscience, before she put her- self under the power of a second husband, provide for the children she had by the first. Now there may be no difference of opinion as to the propriety of her making such a provision for her children, and in some cases she would be conscientiously and morally bound to do so ; but the question remains, could she conscientioualy do it without the knowledge of her husband ? Could she con- tract with him upon the assumption that upon its execu- tion the property was to be his, and yet clandestinely place the property beyond his control ? The settlement, though MARCH TERM, 1856. 551 Williams v. Carle. a meritorious one, would not be less a fraud upon the husband; and the court interferes with it because it is done in a manner which makes it a fraud upon his marital rights. , But many of the cases in Yernon are very inac- curately reported, and this would seem to be so in the case of Hunt v. Matthews, for in Mr. RaithJby's edition of Yernon it appears, by an extract from the decree in the case, that the husband consented to the settlement being made by his intended wife upon her children. In King v. Cotton, the settlement was made "before the treaty of marriage for the Lord Chancellor said, "it was a very reasonable thing for a widow, while it was in her power, to make a provision for her children by her former husband; and this being before her treaty of marriage with Mr. King, it had been impossible to have asked him to be a party thereto, he not being thought of." The master of the rolls, in the case of England v. Downs (2 Eeav. 527), gave no countenance to the proposition, that a settlement like that in Hunt v. Matthews would be sus- tained in equity, if made without the intended husband's consent. He remarks, "a woman, in such circumstances, can only reconcile all her moral duties by making a proper settlement on herself and her children with the knowledge of her intended husband" The weight of American au- thorities is, that a settlement upon children of a former husband, if made without the knowledge of the intended husband and during the treaty of marriage, is fraudulent, and will be set aside as against him. See cases collected in 1 Lead Ca. in Eq., H. & W. 351. Let us now examine the facts by which the complain- ant expects to maintain his case. He relies upon the an- Bwer of Daniel Carle, upon his evidence given as a witness, called by the complainant himself, and upon the admissions and conduct of Carle. The bill charges, that Daniel Carle admitted that Sarah Carle left in the hands, or under the control of her sister, Ann Carle, the sum of seven hundred dollars, to be kept 552 COURT OF ERRORS AXD APPEALS. Williams v. Carle. and invested by the said Ann for the use or benefit of the children of the said Sarah, in case she should afterwards have any children ; that Aim had received and invested the money, and that it, and the accumulations thereon, then amounted to fifteen hundred dollars, or more, and that he, the said Daniel Carle, had been advised, and was going to put that fund in with the other estate of the said Ann Carle, to be drawn out by and paid to whomsoever the same might legally belong. Daniel Carle, by his answer, acknowledges that he made such admission. Take the admission without any explana- tion or qualification, and conceding that a decree might be made upon an admission of Carle alone, there is not enough in it to entitle the complainant to a decree. The complainant must show that the money was disposed of by Sarah Carle during the treaty of marriage between her and the complainant, and in a case like this, where fraud is alleged and actual fraud is the ground upon which relief is sought, a fact so essential to establish the fraud must not be left to probability or inference. The fact must be proved. This is the whole gravamen of the complainant's case. In the case of England v. Downs, the witness testified that Mr. Mason told him he was about to be married, and instructed him to prepare the settlement ; that he did not think it was prepared or executed with the privity or as- sent of her then intended husband. But the witness did not state who the then intended husband was. There were only two months elapsed between the date of the settlement and Mrs. Mason's marriage. The impression upon the mind of the counsel who argued against the set- tlement was, that the fact was sufficiently established of its being made during the treaty of marriage with the per- son she actually did marry, John T. Broad ; and in argu- ing they assumed the fact to be so, so strong was the in- ference of that fact from the evidence. The master of the rolls held that the fact was not sufficiently proved of the HAKCII TERM, 1856. 553 Williams v. Carle. settlement having been made during the treaty of mar- riage, because, though the witness said the settlement was made without the assent of her then intended husband, some one else might have been her then intended husband other than Broad. i But here it is not charged that Carle admitted that the money was disposed of during the treaty of marriage; and his admission in his answer does not embrace that fact. The bill, however, does charge the fact to be, that the disposition was made of the money during the treaty of marriage ; and Carle was called upon to answer, as to his knowledge, information, and belief upon this subject. Carle had a right, by his answer, to explain and qualify, the admission which it was alleged he had made ; and in making the discovery which the bill calls upon him to make of his knowledge, information and belief, the de- fendants are entitled to the benefit of his whole answer. By his answer, he denies that he has any knowledge him- self of the fact that Sarah Cole ever placed any money in the hands of her sister for the purpose named in the bill. He denies all knowledge or information of any evi- dence by which the fact can be established. He then states all the facts bearing upon the subject within his knowledge, and which are the facts which influenced him to make the admission which he did. He states, that be- fore the marriage of his sister and the complainant, and while the same was in contemplation, he remembered there had been some conversation in the family of the defendant respecting the propriety of his sister Sarah's placing seven hundred dollars in the hands of her sister Ann, to be held by her in trust for any children she) the said Sarah might have by the said complainant ; and also, that a few days before the death of the said Ann, she said to the defendant these words : " There is fifteen hundred dollars coming to the children." He declares that the foregoing is the or.ly evidence he ever had that any funds VOL. ii. 3 A. 554: COUKT OF EEEOKS AND APPEALS. Williams c. Carle. were ever placed in the hands of the said Ann in trust for the children of the complainant, and he therefore deter- mined to treat all the property which came into his hands as the property of Ann, his intestate, unless upon repre- senting to those interested in the estate what he supposed might be the fact, they should consent to the division of the fifteen hundred dollars among the three children of the complainant. It will be seen that here is an explana- tion of the alleged admission, which deprives it of the efficacy of concluding the rights of the defendants. It is a full denial of the fact, that to the knowledge or infor-' mation of the defendant, his sister Sarah placed the seven hundred dollars, as alleged, in the hands of Ann Carle. The facts stated by the defendant, of the talk in his own family, and of what Ann said just before her death, do not establish that Sarah Carle, while in treaty of marriage with the complainant, and to defraud him of his marital rights, fraudulently placed seven hundred dollars in the hands of Ann Carle, in trust for such children as she might have by the complainant. It appears to me quite unneces- sary to criticise the answer, for no court would be justified to conclude from it that it established the alleged fraud. The complainant has admitted this by filing his replication. By taking issue, he undertakes to prove the denial of the answer untrue. Our next inquiry is, how far he has been successful in doing so. He relies upon the evidence of Carle, whom he has ex- amined as a witness, and upon the evidence of other wit- nesses as to the conduct and declarations of Carle. It does not appear by what authority Carle was exam- ined as a witness in the cause. The rule is, that where the complainant examines a defendant as a witness, he waives the right to a decree against him. There are ex- ceptions to the rule in the cases of executors and trustees of persons who are made defendants as merely holding the fund, and who are therefore only nominally interested in the suit. But such is not the case with Daniel Carle. MABCH TERM, 1856. 555 Williams v. Carle. He is not a nominal party, or made such simply as the administrator of Ann Carle. He is charged with actual fraud. The bill charges, that he advised and encouraged the disposition of the seven hundred dollars, and the con- cealment of the fact from the complainant. He is, besides, personally interested in the estate of his intestate, and as one of her next of kin, entitled to a distributive share of her estate. He cannot be brought within any of the exceptions to t*he rule. But he might be examined with the consent of all parties; and this consent is im- plied from the fact, that no objection was interposed before the master. His evidence was read without objection at the hearing. What does Daniel Carle prove as a witness ? Nothing more than he admits by his answer. He denies all know- ledge or information as to any fact bearing upon the case, except the conversation in his own family and what Ann said a few days before her death. I have already remarked, this court cannot from these facts draw the legal infer- ence that seven hundred dollars was fraudulently placed by Sarah Carle in the hands of her sister, Ann Carle. They do not prove the fact, that any money, for any pur- pose, was ever placed by Sarah in the hands of her sister Ann. The complainant has proved the admissions and con- duct of Daniel Carle. It would be strange, indeed, if any court would permit the mere admissions and conduct of an administrator to mulct the estate to the amount of debt which is sought here. Giving them their greatest weight, I do not think they amount to anything. They only prove that Daniel Carle himself believed that the money was placed by one sister, in the hands of the other, in trust for the complainant's children, and that acting upon that belief, he, for one, was willing and disposed to see the trust executed. But this court cannot decide the case upon the belief of the witness. It is not right that the defendant should be prejudiced by it. He has stated 556 COUET OF EEKOKS AND APPEALS. . ; "Williams v. Carlo. \hefacts upon which his belief is founded. The court can- not tell what amount of evidence is sufficient to produce that belief in the mind of the witness. The question is, whether the facts stated by the witness, and not his belief, are sufficient to justify a decree in favor of the complainant. If they are not, the court cannot decide in his favor, no matter what may be the belief of Daniel Carle. With this view of the case, the conduct of Carle, on which the complainant relies, can have no influence in en- abling the court to reach a correct conclusion. In making his inventory, as administrator, he kept fifteen hundred dollars out of it. This only shows the bias of his own mind, and what his own belief was. He tells us why he did it, and we must now determine whether he was justified in doing so. It was insisted that the admissions and conduct of Carle impeach his testimony, and show that he did not tell the whole truth in giving his evidence. I am at a loss to con- ceive how this can help the complainant. Daniel Carle was the complainant's own witness. If he was successful in im- peaching his own witness, and in showing that he was not a man of veracity, and one upon whom the court can rely, what becomes of the complainant's case ? The complainant has no other witness. Surely it will not be contended that if the complainant cannot recover upon the evidence of the witness upon oath, they may recover upon his contradictory statement when not under oath and by proving that he is not a credible witness. The admissions of Carle, for the purpose of contradicting him as a witness, were not admissible as evidence. He was the complainant's own witness, and it was not com- petent for the party calling him to impeach him. The case presents this singular aspect, of a party relying upon the testimony of one single witness to prove his case, and yet endeavoring to impeach that witness by showing that his statements under oath are not entitled to credit. I do not mean to insinuate that the complainant has been at MARCH TERM, 1856. 557 Williams v. Carle. all successful in impeaching the testimony of Daniel Carle. His evidence, it is true, does not appear well. It appears to have been very difficult to draw the truth from the wit- ness ; and by his manner of giving his testimonv, he has done himself no credit. But all this should not prejudice the other defendants in the suit. If the complainant has been unable to get the truth from the witness, it is his own misfortune, and other parties in interest must not be made to suffer on that account. I have examined the case with great care, commencing my investigation with the impression produced upon me by the argument, that the complainant was entitled to a decree. I have, however, come to the conclusion, perfectly satisfactory to myself, the complainant has not made out his case, and is not entitled to the relief he prays for. The appeal was argued by Vanatta and Wlielpley, for the appellant, and Annin and Miller, for respondent. Points of the appellant. 1. The evidence contained in the pleadings and proofs is sufficient to establish the facts, that Sarah, the former wife of the appellant, shortly before and in contemplation of her marriage with the appellant, and without his privity, assent or knowledge, placed under the control of Ann Carle money, or choses in action, to the value or amount of seven hundred dollars, for the use of any children of the said complainant which she, the said Sarah, after her said marriage might bear. 2. The facts thus established make the trust thus cre- ated, as against the appellant, illegal and void. 3. The appellant is entitled to recover and receive for his own use the said seven hundred dollars, and the in- crease thereof. 4. The said Daniel Carle having, on the 13th of De- cember, 1853, admitted to the said appellant that Sarah, the said appellant's first wife, before her marriage had 3 A* 558 COUKT OF ERKOBS AND APPEALS. Williams v. Carle. left in the hands of her sister Ann the sum of seven hun- dred dollars, to be held in trust for the future children of the said Sarah, in case she should have any, and that the Baid seven hundred dollars at the death of the said Ann amounted to fifteen hundred dollars or over, and the said appellant having acted upon that admission by instituting his suit in the Court of Chancery for the recovery of the money s,o admitted to have been left with said Ann by said Sarah, the said Daniel Carle is and should be estopped from denying or attempting to disprove the fact, that the said Sarah, before her marriage with the appellant, did leave with said Ann the said sum of seven hundred dol- lars, and also from denying the fact, that the said Ann, at her death, still held the said seven hundred dollars, and the increments thereof, making in all over fifteen hundred dollars. . 5. It being proved that the said Sarah, before her mar- riage with the appellant, did leave with said Ann the sum of seven hundred dollars for the nse of the children of the said Sarah, and the said children having solemnly dis- claimed all title to or interest in the said seven hundred dollars, and the increase thereof, the said appellant is en- titled to recover aud receive the same, as administrator of the said Sarah, although the said Sarah may have created the said trust, and left the said seven hundred dollars with the said Ann prior to the commencement of the treaty of marriage between the said Sarah and the said appellant. 6. It being proved that the said Sarah did at some time leave with said Ann money or choses in action, which said Ann held and retained until her death, and which at the period last mentioned amounted to over fifteen hundred dollars, if the said money or choses in action were left with said Ann at any time after the marriage between said Sarah and the said appellant, the said appellant is entitled to recover the same in this suit. .The. Chief Justice delivered the opinion of the Court .4}f .Appeals. MARCH TERM, 1856. 559 Williams ?;. Carle. GREEN, C. J. The case, as it stands before this court, is \vithin very narrow limits. The Chancellor has decided, in accordance with the clear weight of authority, that if the fact is established that Sarah Carle placed the money in controversy in the hands of her sister, Ann Carle, at the time, and for the purpose alleged in the bill of com- plaint, the complainant is entitled to the redress which he asks. The Chancellor has further decided that the claim is not barred by the statute of limitations. The only re- maining question in the case is, whether, in point of fact, the money was placed in the hands of Ann Carle by the wife of the complainant, without his knowledge, previous to their marriage, for the use of the complainant's chil- dren. The defendant, the administrator of Ann Carle, doee not deny that the money is in his hands. His conduct shows not only hu belief that the money was held by Ann in trust for the purpose charged in the bill, but an un doubted knowledge of that fact. Soon after the death of Ann, he told one of the complainant's children that there was $1500 in his hands, which belonged to her and her brothers. He stated, in the language of the witness, " that aunt Ann said there was $1500 there for us ; money which mother left there." As administrator of Ann's es- tate, the defendant set aside the sum of $1500 out of the money found in her possession, as not belonging to her estate. Though advised by counsel to do so, he declined putting it into the inventory. He omitted it not by acci- dent, but by design, from an inventory, which he exhibited under oath, as containing a true and perfect inventory of her estate. He offered to pay over the money to the chil- dren, in accordance with the terms of the trust, with the consent of the next of kin of Ann. This consent lie re- quired obviously not from any doubt of the truth of the case in his own mind, but because the knowledge of the facts rested mainly, if not exclusively, with himself. He found among the papers of Ann no written evidence of 560 COURT OF ERRORS AND APPEALS. Williams v. Carle. the existence and nature of the trust, and therefore, with great propriety for his own security, he asked the assent of the persons interested in her estate to his disposal of the fund in pursuance of the trust. The next of kin of Ann, the persons interested in her estate, all gave their consent to the payment of the money to the children of Sarah, pursuant to the terms of the trust. It would have been so paid but for the objection of the complainant him- self, who interposed his marital rights. Daniel Carle was not only the administrator of Ann, but he was one of her next of kin, and entitled to a share of her estate. In excluding this fund from the estate of Ann, he acted against his own interest. He was in a po sition, of all others, to know the truth in regard to this fund. His sister Ann and himself were both unmarried. They lived together in the same family. He must have been cognizant, to a greater or less degree, of the extent of her property and of her business transactions. He was interested by her with the settlement of her estate. Their relations were friendly, They had no nearer or dearer ties than those which bound them to each other. Living thus as brother and sister in the same household, he was in a situation to know, and it is scarcely credible that he did not know the truth in regard to the real condition of the funds in her hands. But there is evidence that he had di- rect information on the subject of this trust. His knowl- edge of it was derived both from Sarah and Ann, the. only parties to the transaction. Sarah, before her mar- riage, consulted him on the subject of leaving the money there, or, to use his own language, she talked to him about it. We have Sarah's declaration, that " upon her marriage, her husband and his father made so much fuss about her property, that she left it behind with her folks ;" and it is not pretended that it was left with any one but Ann. Upon her death-bed, Ann gave to the defendant, her administrator, an injunction, which he understood MAECH TERM, 1856. 561 Williams v. Carle. related to this fund, aiid upon which he acted in the settle ment of her estate. It is objected, that it is not enough that the defendant should believe the truth of the complainant's case, but the court must see that he had sufficient evidence for his belief ; and that the statement he makes as a witness of what he heard from his sisters is not sufficient to warrant his belief, and therefore the court cannot act upon it. But is not this too limited a view of the testimony \ Is the statement made by the defendant of what he heard from his sisters all the evidence in the cause upon which the court may base its action ? The examination of the defendant affords the clearest evidence that he was not a willing witness for the com- plainant, and that he has testified to nothing in the com- plainant's favor not demanded by the truth. His evidence is above all suspicion, so far as it makes in favor of the complainant's case. Without impugning at all the integ- rity of the witness, it is not remarkable that he should not remember distinctly, and be able to detail what passed between his sister Sarah and himself on the subject of the trust when it was created, over forty years ago. She may well have stated to him distinctly the fact, that she had placed the money in the hands of her sister Ann for a specified purpose. The conviction in his own mind re- sulting from the conversation may be clear, and yet he may be unable, after so great a lapse of time, to remem- ber one word of the conversation ; and he may therefore say with truth, that he does not remember what she said. Material facts, which influenced his mind, may totally have escaped his recollection. That they did so, is very clear. It is in evidence, that after the death of Ann, he informed a relative that the money which Sarah left with Ann for the children of the complainant amounted to $1500. He further stated that, in Sarah's lifetime, she sometimes came to get her interest, and sometimes Ann took it to her. This fact, upon hie examination, he ap- 562 COURT OF ERRORS AND APPEALS. Williams v. Carle. pears to have forgotten ; but it tends strongly to show that he had not only, from the statements of his sisters, but from their acts, the most certain knowledge of the real ownership of the fund, and that it was held by Ann, as trustee. And that the interest on the fund was paid by Ann to Sarah, in her lifetime, is confirmed by the fact, that interest on the original fund of $700, from the death of Sarah to the death of Ann, would, with the principal, amount to about $1500, the sum admitted to have been in Ann's hands at her death. In regard to the statement proved to have been made by Ann in her lifetime, that there was $1500 in her hands for the children, it is said, that the statement as equivocal, and its import so uncertain that a stranger can gather nothing from it. The more important inquiry is, what did Ann intend, and what did the defendant under- stand by it. It was a death-bed instruction, given by Ann to her brother, who became her administrator, touching funds in her possession. It was given three days before her death. There was ample opportunity for inquiry by the brother as to her real meaning, if there was a particle' of doubt in his mind on the subject. Circumstances, al- ready referred to, warrant the belief that he was fully ac- quainted with the existence and nature of the trust. And is it not manifest that he must have understood perfectly to what fund his sister referred, and of whom she spoke ? If it were not so, would he not, as a brother, have in- quired further respecting it ? Is it credible that he enter- tained at that time the least doubt on the subject ? And if he perfectly understood and applied the instruction given, does it at all affect the question, that the language used was general, or that its import to a stranger would have been equivocal or unintelligible ? That he did per- fectly understand her meaning is obvious from the fact, that he made no further inquiry on the subject ; that he acted unhesitatingly and against his own interest upon his understanding of the meaning ; that upon her death, he MARCH TEEM, 1856. 563 "Williams u Carle. informed the complainant's daughter that there was $1500 in his hands, left by her mother with her aunt Ann, and that Ann said there was $1500 for herself and her bro- thers. He kept the money out of Ann's estate. He re- fused to administer upon it. He agreed to pay it over to the children of Sarah, upon obtaining the consent of the next of kin. That consent was given, and the payment of the money prevented only by the interference of the father of the children. And yet, in the face of all these facts, we are asked to decide that there is no evidence that the money was in Ann's hands, or that it belongs to the children. We have then this extraordinary state of things : Sarah says the money was left in Ann's hands ; Ann says the money was left in her hands for Sarah's chil- dren. The brother, and the administrator of Ann, who was in a position to know the whole truth, and who re- ceived Ann's death-bed instruction on the subject, in- forms the children that the money is in his hands. Against his own interest, he refuses to administer upon it as a part of Ann's estate. He makes oath that it forms no part of her estate. He offers to pay it over to the children of Sarah, with the consent of the next of kin of Ann. The next of kin, at a sacrifice of their own interest, upon a conviction of the truth, consent to the arrangement ; and yet this court is asked to decide that there is no evidence that the fund is in existence. With great deference, it seems to me that the evidence which entirely satisfied the stakeholder of the money, the administrator of Ann's es- tate, the person who of all others was in a situation ta know and must have known the truth, and induced him to act against his own interest ; the evidence which satis- fied all the next of kin of Ann that the money did not belong to her estate, and induced them to relinquish all claim to it, nay the very fact of the recognition of the trust by all the parties interested in Ann's estate, ought to be sufficient to satisfy the conscience of a court of equity. 564 COURT OF ERRORS AND APPEALS. Williams v. Carle. The money clearly does not belong to the estate of Ann Carle ; neither her administrator nor her next of kin pre- tend that it does. They do not claim it. To whom, then, does it belong ? It is said that it belongs to the children, and that the court must protect their interests. The an- swer is, that the children have, by their answer to the bill, disclaimed all right and interest in the fund. Now admitting that there was no legal fraud on the marital rights of the husband, admitting that Sarah, the com- plainant's wife, on the eve of her marriage, rightfully placed a part of her estate in her sister's hands in trust for the children of her intended marriage, if there had been no children of the marriage, would not the fund have belonged to the husband on the death of the wife ? There were children, but, as cestui que trusts, they disclaim title ; they renounce all right to the fund, and decline to accept it. To whom, then, does it belong ? Surely not to the trustee, but to the estate of Sarah, and to her husband, as her administrator. In any aspect of this case, I see no escape from the conclusion that the defendant, Daniel Carle, is a trustee, and liable for the funds in his hands to the complainant, the husband and administrator of Sarah Williams. The complainant is entitled to recover the fund of $1500, with interest from the death of Ann Carle. But under the peculiar circumstances of the case, the defendant was fully justified in refusing to pay over the money, ex cept under a decree or by the direction of the court. He is therefore entitled to his costs. The defendant should be permitted to deduct from the amount of the fund and interest his taxed costs of defence, both in the Court of Chancery and in this court. The decree of the Chancellor must be reversed, and the proceedings remitted to the Court of Chancery, that the case may be proceeded in accordingly. The following dissenting opinions were read MARCH TERM, 1856. 565 Williams v. Carle. POTTS, J. The complainant, who is the administrator of his deceased wife, Sarah, filed his bill in this case against Daniel Carle, who is the administrator of Ann Carle, de- ceased, and the three children of Ebenezer and Sarah Williams, alleging that while his courtship or treaty of marriage with the said Sarah was pending, she, the said Sarah, left in the hands, or under the control of her sister, Ann Carle, the sum of $700, to be kept and invested by the said Ann, for the use or benefit of the children of the said Sarah, in case she should afterwards have any children ; that the same had been so invested, and with its ac- mulation amounted to $1500, or more. The bill further alleges, that the marriage between the complainant and said Sarah took place March 17th 1819 ; that said Sarah died on the 19th of November, 1834 ; that, in 1837, he married her sister, who is still living ; that Ann Carle died intestate, about the 25th of September, 1852, never having been married ; and that, on the 13th December, 1853, he was informed for the first time, by Daniel Carle, of this deposit having been made with Ann Carle, thirty-five years before, for the purposes aforesaid. He insists that this was in fraud of his martial rights, and prays that the trust may be set aside, and the money paid over to him, with all the interest which has accrued since the deposit was made. Ann Carle, as has been stated, died in 1852. She left, as appears, in personal estate nearly $10,000, chiefly in- vested in bonds and notes. She made no disposition of any of her property, and left behind her no written evi- dence of any kind that she had any such trust fund in her hands as is mentioned in the bill. Her next of kin are Daniel, and Lydia, the present wife of Williams, and the children of Elizabeth and those of Sarah, her two deceased sisters. The complainant then seta up a claim to have paid to him out of the estate of Ann Carle, deceased, the sum of $700, with the interest thereon, from the time of the VOL. n. 3 B 566 COURT OF ERRORS AND APPEALS. Williams v. Carle. alleged deposit, that is from the year 1818, up to the time of said Ann's death, amounting, as he says, to considerably over $2000 ; and to establish his right he is bound, in the first place, to prove the allegation upon which it is founded, to wit, that his former wife actually deposited with Ann, or left with her before the marriage, the said sum of money. The only important evidence in support of this allega- tion is to be found in the answer and declarations of Daniel Carle. The bill sets out the information given to the complain- ant by Carle, in 1853, and calls upon Carle to answer under oath as to the truth of this information given, and his knowl- edge of the fact. Daniel answers, that he does not himself know that any suck sum, or any other sum, was ever placed in the hands of the said Ann by the said Sarah, previous to her marriage with the complainant / that he never, in any way or manner, counselled or advised any invest- ment or concealment of any such funds. He admits that on a certain occasion, at his own house and in the pre- sence of the complainant, his wife arid children, and several others, Mr. Annin, his attorney, by his authority and at his request, stated that Sarah, the complainant's first wife, before her marriage, had left in the hands of her sister Ann, the sum of $700, to be held in trust for the future children of the said Sarah, in case she should have any, and that said, money amounted, at Ann's death, to $1500, or over ; but that as no evidence of the fact was to be found among the papers of said Ann, he, as her adminis- trator, intended to put the same in with said Ann's estate, unless by the consent of those interested in the estate, he was allowed to pay it over to the children. He gives his reasons for having made this statement by his attorney. He says, that before the marriage of Sarah with the complainant, and while the same was in contemplation, he remembered there had been some conversation in his family respecting the propriety of said Sarah's placing $700 in the hands MABCH TERM, 1856. 567 Williams r. Carle. of her sister Ann, to be held in trust, &c. ; and that a few days before the death of said Ann, she said to him, " there is $1500, or over ', coming to the children" Thai the foregoing is the only evidence he ever had that any such funds were so placed in Ann's hands, and that he never knew that any ar- rangement of the kind proposed was ever carried into effect. The defendant was subsequently called as a witness by the complainant, and testified, in relation to the conversa- tion in the family before the marriage, that Sarah talked to him about the matter, but he did not know whether Ann was present or not ; that Ann's remark, above stated, was made to him in her last sickness, two or three days before her death that she was in bed ; that he don't remember anything more being said ; that she was so far gone he did not want to trouble her with any inquiries. Upon the question, whether the $700 was actually left by Sarah in Ann Carle's hands, this is the whole evidence. In the course of a long examination of Daniel Carle, no- thing more is elicited as to his knowledge of the matters stated in his answer. Ann Vail is called. She says Daniel told her what he authorized his attorney to tell the com- plainant. She states, indeed, something her aunt Sarah (Mrs. Williams) told her, but this is not evidence in sup- port of her husband's claim. Sarah Williams is called, and testifies that Daniel told her what he told Ann Vail. But the defendant, in his answer, swears that if he said so to anybody, it was for the reasons he had before stated. Daniel C. Williams and William Jtf. Clark are called, and testify to what passed at the meeting when Mr. Annin made the statement mentioned in the answer, but without vary- ing it in substance. This testimony therefore leaves the case precisely where it stood upon the answer. Then the evidence as to the fact of the deposit of this money with Ann Carle consists 1. Of flic conversation in the family of Daniel previous to Sarah's marriage. And all that we know of that is, that there had been a conver- sation about the propriety of such a measure ; that Sarah 56S COURT OF ERRORS ASV APPEALS. Williams c. Carle. bad spoken to the defendant about it. He swears tbat be does not know tbat any money was ever paid to Ann or left witb ber ; saw notbing of tbe kind ; beard nothing of the kind. Standing alone, this amounts to positively no- thing. It is only by coupling it witb the death-bed decla- ration of Ann, thirty-four or five years after, that it be- comes of any importance at all. That declaration was, " there is $1500, or over, coming to the children," made on a sick bed by a sick woman, two or three days before ber death to Daniel Carle alone, without one further ward of explanation. How coming ? coming from whom ? com- ing to tbe children ? what children ? Does she say Sarah bad deposited money witb her for her children ? She does not. Does she say there is $1500 coming to Sarah's chil- dren out of my estate ? She does not. Does she say this money is coming to Sarah's children at all ? She does not. And yet upon the case as made, it is affirmed that she is now, for the first time in ber life, disclosing the important fact of tbe creation of a trust in favor of these children which had been locked up in ber own bosom for eighteen years, the period that had elapsed since her sister's death ; a secret trust created thirty-four years before, and as far as appears, never known to anybody but Ann and Sarah herself never revealed by either during tbat time, not even to the cestui que trusts themselves. It is true that Ann Vail says Daniel Carle told ber, in 1853, that Sarah, sometimes, in her lifetime, came and got the interest, and when she did not, Ann went and took it to her. Daniel is not asked about this. But the com- plainant states, in his bill, that for twelve or fourteen years after their marriage, be left a considerable portion of her funds under her own control, and that it was not until he purchased a farm, that be called upon ber for ber funds, and that he then gave up to him, as he then under- stood and supposed, and always supposed until five months before be filed bis bill, all the funds which she owned at tbe time of tbe courtship and marriage, with all the inter- MAKCH TEEM, 1856. 569 Williams r. Carle. est which had accrued ; but it is quite as probable that she may have without his knowledge received some portion of the accruing interest upon these funds, and concealed that fact from him, as that she kept back and concealed a por- tion of the principal. I do not say that in this answer and evidence, taken to- gether, there is not enough to raise & probability that the money claimed was in fact left by Sarah in Ann's hands, as charged in the bill. I think there is. But my difficulty is, that there is no positive proof , nor anything that amounts to conclusive evidence of the fact. The burthen of proof was on the complainant in the court below. The Chan- cellor held, that for the want of such proof, he had failed to support his bill. The appellant here is bound to satisfy us that' in this the Chancellor erred, and he has not done so to my satisfaction. The counsel of the appellant lays great stress upon the fact, that Daniel Carle believed the money had been depo- sited, as charged ; that he was witting^ if the other heirs consented, to pay over the money to the children ; and that he kept it out of the inventory. But whatever Daniel Carle, or any other heirs of Ann Carle believed, or may have been willing to do in reference to the children, and whatever their motive or the influence which induced them may have been to express such consent, we are not at liberty to believe because they believed / and as far as they are be- fore the court, they are here resisting the complainant's claim, and asking such protection as the facts would in the case entitle them to. Undoubtedly, in the absence of positive proof, we may look to the circumstances of the case for additional light ; and if these are sufficiently strong to satisfy the judgment, we may take the case as proved. But what are the circum- stances here ? The allegation is, that $700 was deposited with Ann Carle by Sarah, in 1818 or 19, in trust, tfcc. Ann died thirty-five years afterwards, and not a scrap of paper is SB* 570 COUKT OF EKKOBS AND APPEALS. Williams v. Carle. found in reference to such deposit, neither among the papers of the alleged trustee nor in the possession of any- body else. It is alleged, that during Sarah's lifetime, a period of sixteen years, she paid Sarah the interest upon this fund, but no receipt for a dollar of interest is found. According to the alleged terms of the trust, after the death of Sarah, the money belonged to the children of Ebenezer Williams. Sarah died in 1834 ; Ann lived until 1852, a period of eighteen years after this ; at her death, the children were all of age ; Sarah was 26, Theodore 28, and Daniel C. 32 ; yet Ann, it is clear, not only never paid to either of them a single dollar, but never so much as informed them, or either of them, that she had this mo- ney in her hands. The case does not show that any one, except Sarah and Ann, knew anything of this deposit being made, and the fact, if it existed, was kept a pro- found secret by these two women during their whole lives ; for all that Ann Vail says Sarah told her was, that "they (her husband and his family) made such a fuss about the property, right away as soon as she was mar- ried, that she meant they should never know what she had, or how much she had." For conduct so extraordi- nary, we ought to be able to soe some motive. Ann Carle must have been acquainted \dth business, for she acted as her brother's executrix. Daniel Carle, the brother, seems always to have had the confidence of both sisters. To some extent, at least, he managed their finances, and it seems strange, to say the least, that not a scrap of writ- ten evidence should have fceen left, not a witness produced to prove the fact, that even the brother never should have been made a confident of the fact of the deposit and the terms of the trust, nor either of the cestui qui trusts / and that knowing, as Ann must have known, if the fact was as stated in her last sickness, that she was the sole re- maining depositary of the secret, phe should not have dis- closed to him, or to some one, in explicit terms the fact, instead of using language which ipigUt easily have been MA11CII TERM, 1856. 571 Williams v Carle. misunderstood and misinterpreted, and the meaning of which is undoubtedly ambiguous. The complainant below made, I think, a doubtful case, and these circumstances increase the doubt. They show a state of things, it seems to me, inconsistent with what experience teaches us to expect in human conduct. It has been asked by the complainant's counsel, if Ann Carle, in saying on her death-bed, " there is $1500, or over, coming to the children," did not mean there was that sum of trust money coming to the children of Ebe- nezer Williams out of her estate, what did she mean. The question was well put. But it was a question for the com- plainant, and not for the defendant, to answer, and to an- swer so as to satisfy the conscience of the court. I think he has not done so. I am, for one, in doubt what she meant. I am in doubt, for the very reason that her lan- guage does not inform me. I may conjecture : I may think the probabilities are in favor of the construction the complainant puts on her words ; but I am unwilling to decide a question of property to take money from one party and give it to another on conjectures and proba- bilities. The complainant claims this money as a creditor of Ann Carle's estate. He has not, in my judgment, proved his claim, and I feel unwilling to enforce a claim which is not proved. I may add, that if the complainant is entitled to recover at all, I do not see why he is not entitled to the $700 and thirty-four years' interest upon it. This is his claim. There is no legal evidence before the court of the payment of interest on this $700 during Sarah's life. Ann Carle's say- ing the sum was $1500, or over, and Ann ValTs testifying that Daniel told her that Sarah sometimes came and got the interest, and when she didn't, Ann went and took it to her, surely is not evidence by which the liability of the estate can be discharged from the payment of interest on tliis $700. These witnesses are all testifying in favor of their own interest. 5Y2 COURT OF ERRORS AKD APPEALS. Williams v. Carle. I am of opinion, on the whole, that the decree should be affirmed. ELMER, J. It is clear that the appellant is entitled to no relief, unless there is satisfactory evidence, from the admissions of Daniel Carle or otherwise, that Ann Carle had in her hands, at the time of her death, a sum of mo- ney, which at some time belonged to her sister Sarah Williams, the appellant's wife. The declarations or acts of Sarah are not competent evidence of this fact ; although such declarations or acts might be evidence of the fraud upon the marital rights of her husband, if it was other- wise established that Ann Carle was the depositary of the money. A few days before her death, Ann Carle said to her brother Daniel, who has since administered on her estate, these words : " there is fifteen hundred dollars, or over, coming to the children." She said nothing, and referred to nothing from which it could be ascertained what chil- dren she meant. There is no proof that she ever, in any way, acknowledged that she had received any money or other property from or for her sister Sarah, or that there was any money in her hands belonging to her or her children. It appears that when Daniel Carle came to make an in- ventory of Ann's estate, as her administrator, he omitted to include therein fifteen hundred dollars of her assets, and there can be no doubt, I think, that he did so because he believed that the fifteen hundred dollars spoken of by Ann, as coming to the children, was money in her hands arising from funds left with her by Sarah Williams, for the use of her children. But are the facts, that he enter- tained this belief, and so acted, sufficient to justify the court in decreeing this money to belong either to the husband or children of the said Sarah, and thus take it from the next of kin of Ann. In my opinion, they are not. Not only has Daniel Carle been called on to answer MARCH TERM, 1856. 573 Williams v. Carle. the complainant's bill under oath, but he has been examined as his witness, and he states that he never heard Ann Carle say that she had received any money from her sister, or that she had any in her hands belonging to her or her children, and that he did not know, from any com- munication of hers, what she meant by the words she spoke, as before mentioned. He states that he had heard, in the family, that Sarah proposed to place seven hun- dred dollars in the hands of her sister Ann, to be held by her in trust for any children Sarah might have, and that Sarah told him so herself. It is also proved, by Ann Vail, that Daniel Carle told her that some money her aunt Sally Williams had left, amounted to fifteen hundred dollars, and that she came there (meaning evidently his house, where Ann lived), and got the interest, and when she did not, Ann went and took it herself. These circumstances account for Daniel Carle's belief and his conduct. But as the complainant's witness, he expressly testifies that he knew nothing about the matter from Ann herself, nor is there any proof from any other witness that he did. It must therefore be assumed that his belief, as to what Ann meant, was derived wholly from information received fromi other persons, so that we have no evidence before us, but the fact that such information was given to him, and tliat he believed it. It was insisted, for the appellant, that it is a sufficient ground for the court to act upon in this case that the de- fendant sought to be charged believes the fact to be so. The rule is, that the unqualified admission of the defendant that he believes a fact charged to be true, is generally suffi- cient to entitle the complainant to a decree. 3 Greenl. Eve. 282. But the defendant makes no such admission. What the defendant believes, the court will also ordinarily believe. But this maxim has no application to a case where the defendant is called as a witness, and states the ground of his belief. Had the testimony of Ann Vail and the other testimony in regard to the declarations and acts 574 COURT OF ERRORS AND APPEALS. Williams v. Carle. of Daniel Carle, as administrator, been before the court without any explanation of the causes that produced them, perhaps we might very fairly have inferred that those declarations and acts were founded on knowledge O derived from Ann Carle herself, whom he now represents. But having been himself made a witness for the com- plainant, we are bound to look at the reasons for his conduct, or, in other words, to take his statements all together. It thus appears that his belief and conduct were founded, not upon the acts or admissions of Ann Carle, but wholly upon information derived from others, whose statements to him would not be competent evidence to affect the interest of Ann Carle or of her next of kin. The stream can rise no higher that its source. And if it be admitted to be true, as was so earnestly insisted on the argument, that this court cannot help believing as Daniel Carle and the other interested persons believed, the an- swer is, we have no right to act judicially upon a belief produced by the declarations or acts of persons which are not competent by the well established rules of law to be proved in evidence. The jury and the judge may often put implicit confidence in the mere statement of one of the parties, but they must have legal proof before they can act. On the thirteenth day of December, 1853, it appears that a sale took place of Ann Carle's goods and chattels, when the appellant, the three children of Sarah "Williams, who were all of age, and most, but not all of the next of kin of Ann, were present. Mr. Annin, as the counsel of the administrator, and at his request, stated to them, that thirty-five years before, Sarah "Williams had left seven hundred dollars in the hands of her sister Ann, to be kept for her children, and that the fund amounted to fif- teen hundred dollars, or more, and that this money would be put into the estate of Ann, unless by the consent of those interested in her estate, he was allowed to pay over five hundred dollars to each of the children of Sarah MARCH TERM, 1856. 575 Williams u. Carle. "Williams. Most, or perhaps all of those present, except the appellant himself, whose present wife is one of Ann's next of kin, appear to have assented to this ; but nothing was done to render the consent of any of them binding. Subsequently the appellant claimed all the money as belonging rightfully to him, and the administrator de- clined paying him without a suit. Had all the persons in- terested in the estate been present at the sale, and ex pressed their full belief that the representation made was true, and consented to the payment of the money to the children, as proposed, their doing so would not have bound them in this suit. But those who were present, at the most, did not contradict the representation made as to the facts, and assented to the money being paid to the children, who it seems afterwards disclaimed any right to it. None of them agreed that the appellant should have 'if. Daniel Carle, in one part of his testimony, says that U interested in Ann Carle's estate consented to the pay- aiant of five hundred dollars to each of the children ; but 18 plain that he refers to what took place on the day of the sale, and that he means all who were there. It was urged that the next of kin do not now claim this money. They are, however, no parties to this suit, and have never relinquished their right. It was also insisted that Daniel Carle's admissions bind him, and are sufficient to entitle the appellant to a decree upon the ground that he is defending this suit in his own right, the money in dispute never having been put into the estate. But this is certainly not so. He is accountable for this fund, as part of the assets of Ann Carle in his hands, just as truly as if he had included it in the inven- tory : and any decree made against him must be against him as administrator, and upon the principles, as to costs and otherwise, usual in such cases. The contest for this money is in truth between the appellant and the next of kin of Ann Carle, who are entitled to the protection of 576 COUET OF ERRORS AND APPEALS. Williams v. Carle. the court. I am of the opinion that the decree ought to ho affirmed. Decision reversed by the following vote : For affirmance Judges ELMEB, POTTS, RISLEY, YKEDKN"- BITBGH, WILLS. For reversal CHIEF JUSTICE, Judges HAINES, HUYLEE, AREOWSMITH, COENELISON, RYEKSON, VALENTINE. CITED in Stevens Ex'trx. v. Stevens Eacrs. 9 C. E. Gr. 87, 578; Baldwin v. Van Vorst, 2 Stock. 577. COURT OF ERRORS AND APPEALS JIItfE TEEM, 1856. Between DANIEL A. BALDWIN, appellant, and JOHN VORST, respondent. As a general rule, courts of equity will not regard time in the performance of a contract. But the parties may make time the essence of the contract, so that the court will not interfere to aid the party who is in default, un- less he can offer some good excuse, as mistake or accident, for such default. The bill in this cause was exhibited to foreclose a mort- gage, made by Daniel A. Baldwin and Abby Ann his wife, bearing date the first day of October, eighteen hundred and fifty-two, and delivered to John Van Vorst, the com- plainant, and set forth in the said bill exhibited in this cause. The said mortgage was made to him to secure the sum of money mentioned in a bond made by said Daniel A. Baldwin, and delivered to the said John Van Vorst, the complainant, bearing even date with the said mortgage, which said bond was subject to the following condition : that the said Daniel A. Baldwin, his heirs, ex- ecutors, or administrators, should well and truly pay, or cause to be paid, to John Van Vorst, the complainant, his executors, administrators, or assigns, the just and full sum of forty thousand dollars, in ten years from the date of the said bond, that is to say, before or on the first day of October, which would be in the year one thousand eight hundred and sixty-two, and the interest thereon to be computed from the date of the said bond, to wit, Octo- ber first, eighteen hundred and fifty-two, at and after the rate of six per cent, per annum, and to be paid half-yearly, VOL. IL 3 o. 578 COUKT OF EKROES AND APPEALS. Baldwin v. Van Vorst. on the first days of April and October, then the said obli- gation shall be void, otherwise should remain in full force and virtue. And the said bond was subject to the further condition, and it was thereby expressly agreed, that should any default be made in the payment of the said interest, or of any part thereof, on any day whereon the same is made payable, as in said bond expressed, and should the same re- main unpaid and in arrears for thirty days, then and from thenceforth, after the lapse of the said thirty days, the afore- said principal sum of forty thousand dollars, with all arrear- age of interest thereon, should, at the option of the said John Van Vorst, his executors, administrators,* or assigns, become and be due and payable immediately thereafter, although the period limited for the payment thereof may not then have expired, anything therein before contained to the contrary thereof in anywise notwithstanding. It ap- peared, by the answer of Daniel A. Baldwin and by the proof in the cause, that on the eighth day of July, eighteen hundred and fifty-three, the said Daniel A. Baldwin offered and tendered to the complainant the interest which had be. come due on the first day of April, eighteen hundred and fifty-three, and the interest thereon, which tender the com- plainant refused, and insisted upon the whole money se- cured by the said bond. The cause was heard in the Court of Chancery, upon the pleadings and proofs, at the term of February, 1855. I. W. Scudder, for complainant, Abram 0. ZdbrisJcie, for defendant, Daniel Baldwin. At the October term of the court, the Chancellor deli- vered his opinion, and on the 21st day of November, a decree was made in favor of the complainant. From this decree an appeal was taken. The Chancellor furnished the court with the following opinion, as containing the reasons for his decree. WILLIAMSON, C. Daniel A. Baldwin, one of the defend- ants, purchased of the complainant a tract of land, lying JUNE TERM, 1856. 579 Baldwin v. Van Vorst. in Jersey City in the county of Hudson, for the sum of forty-seven thousand five hundred dollars ; seven thousand tive hundred dollars were paid in cash, and to secure the balance Baldwin gave his bond, with a mortgage on the premises, in the penal sum of eighty thousand dollars, with the condition, that if the said Daniel A. Baldwin, his heirs, executors, or administrators, should pay to the complainant, his executors, administrators, or assigns, the sum of forty thousand dollars, in ten years from the date of the said bond, with interest at six per cent., payable half-yearly, then the obligation was to be void. To which condition there was annexed an agreement, in the follow- ing words : " And it is hereby expressly agreed, that should any default be made in the payment of the said interest, or of any part thereof, or any day whereon the same is made payable, as above expressed, and should the same remain unpaid and in arrears for the space of thirty days, then and from thenceforth, that is to say after the lapse of thirty days, the aforesaid principal sum of forty thou- sand dollars, with all arrearage of interest thereon, shall at the option of the said John Yan Vorst, his executors, administrators, or assigns, become and be due and paya- ble immediately thereafter, although the period above limited for the payment thereof may not then have ex- pired, anything hereinbefore contained to the contrary thereof in anywise notwithstanding." The first payment of interest fell due on the first day of April, eighteen hundred and fifty-three, and was unpaid when this bill was filed, on the twelfth day of June following. It ap- pears bv Baldwin's answer and by the proof in the cause, that on the eighth day of July, 1853, Baldwin offered and tendered to the complainant the interest which had be- come due on the said first day of April, and the interest thereon and the taxable costs then incurred, which tender the complainant refused, but insisted upon the whole mo- ney secured by the bond. "The only question presented i, \vhcther the court will relieve the complainant from the 580 COURT OF EEEOES AND APPEALS. Baldwin v. Van Vorst. payment of the full amount secured by the bond and mortgage, being forty thousand dollars, upon the payment of the decreed interest and costs. The jurisdiction of a court of equity to grant relief in cases of forfeitures and penalties for breaches of cove- nants and conditions is well established. At the common law there is no remedy, and therefore it is that, in cases of penalties annexed to bonds and other instruments to secure merely the payment of a certain debt, the statute has stepped in, and provided adequate relief against the penalty. Nor does a court of equity, in affording relief, confine itself to cases of fraud, mistake, or accident, however probable it may be that in the origin of this exercise of its jurisdiction, it confined itself within such limits. But it is not imperative in the court to grant relief, although the party in default is willing to render all the compensa- tion in his power to make restoration to the injured party. There is a discretion in the court, regulated, it is true, by well recognized principles, but exercised in its applica- tion of those principles to each particular case by its pecu- liar circumstances. In the case of /Sunders v. Pope (12 Ves. Jr. 289), Lord Erskine says, " there is no branch of the jurisdiction of this court more delicate than that which goes to restrain the exercise of a legal right. That jurisdiction rests only upon this principle, that one party is taking advantage of a forfeiture, and as a rigid exercise of the legal right would produce a hardship, a great loss, and injury, on the one hand, arising from going to the full extent of the right, while on the other, the party may have the full benefit of the contract, as originally framed, the court will interfere where a clear mode of compensation may be discovered." This principle is everywhere recognized, and runs through all the cases. The injured party must be compensated, and must have the full benefit of his contract. If he cannot be adequately redressed for the JUNE TEEM, 1856. 581 Baldwin v. Van Vorst. injury which he has sustained, and which has worked the forfeiture, or if, in granting the relief, the court must so alter the contract between the parties as to destroy one of its principal and essential features, and defeat the very object which both parties had in view on annexing a for- feiture or penalty for the breach of its conditions, then the court ought not to interfere between the injured party and his legal remedy ; ' or, in other words, the court ought not to give relief at the expense and to the .injury of the already aggrieved party. What are the legal rights of the complainant against the enforcement of which the defendant, Baldwin, asks to be relieved ? Baldwin, for a debt of forty thousand, which he owed complainant, gave him his bond in the penal sum of eighty thousand dollars. The condition of the bond was the common one, that if the obligor paid the debt really due of forty thousand dollars in ten years from the date of the bond, and the interest on the debt semi-annually, then the bond was to be void. The penalty was double the amount of the debt due, and the object of the penalty was to secure the due fulfil- ment of the obligation. If this was all the contract, there could be no difficulty as to the legal and equitable rights of the parties. But there was a further condition, in the nature of an agreement, that if the interest money should remain unpaid for thirty days after it was due and paya- ble, then the principal money should be due and payable. The object of this was to secure the prompt payment of the interest on the debt. The first interest money that be- came due was unpaid, and the thirty days were permitted to expire. The complainant was compelled to file this bill to enforce the payment of his debt. He is entitled, by the terms of his agreement, to have a decree for the full amount of his debt. He has forfeited the credit of ten years, which he was to have on condition of prompt pay- ment. If the court relieves the defendant, it destroys the 3c* 582 COUET OF EKROES AND APPEALS. Baldwin v. Van Vorst. very object of the agreement to secure prompt payment. The parties have made this the essence of their contract ; and when the debt is as large as this one is, prompt pay- ment of the interest is a matter of great consequence. It. is true, as was argued, the court might in this case give compensation. Perhaps interest upon interest might be a fair compensation, as near as it may be estimated. But this mode of redress deprives the party of the full benefit of his contract. It will not secure prompt payment in future ; and if at the end of another six months another default is made, the defendant may have the same relief, and thus obtain a credit from time to time upon terms entirely different from the agreement between the parties. If the court grant this relief, the very object of the agreement will be defeated, and this court virtually de- clare that parties shall not make an agreement by which the length of credit shall depend upon the prompt pay- ment of the interest, as it becomes due. The agreement is a reasonable one. A. says to B., you may have my mo- ney for ten years, if you will pay the interest promptly ; if you make default in this respect, you must pay me the principal. It cannot be said to be a rigid exercise of a legal right for A. to refuse to extend the credit when he finds he is defeated in his just expectation of receiving his interest money promptly. In 2 Story's Eq. it is said, " the true foundation of the relief in equity in all these cases is, that as the penalty is designed as a mere security, if the party obtains his money he gets all that he expected, and all that in justice he is entitled to." In this case the penalty is not designed as a mere security, but its very object is to secure prompt payment. If the party does not get this he does not get what he expects, or all that in justice he is entitled to. If this court could give such re- lief as would secure the faithful performance of the agree- ment in future there might be a propriety in its inter- ference. If the court could make a decree that the com- plainant should be relieved in the present instance upon JUNE TEEM, 1856. 583 Baldwin v. Van Vorst. the terms, that for any further delinquency or forfeiture the further credit should be enforced, this would seem just ; and yet, after all, it would be but putting in the shape of a decree of this court, the very agreement which the parties have made, and which the defendant now says is a rigid ex- ercise of its legal right to enforce. I think the remarks of the Chancellor, in Benedict v. Lynch (1 J. 0. R. 376), very applicable to a case like this. The notion that seems too much to prevail (and of which the facts in the present case furnished an example), that a party may be utterly regardless of his stipulated payments, and that a court of Chancery will almost at any time relieve him from the penalty of his gross negligence, is very injuri- ous, to good morals, to a lively sense of obligation, to the sanctity of contracts, and to the character of this court. It wpuld be against all my impressions of the prin- ciples of equity to help those who show no equitable title to relief. As a general rule, courts of equity will not regard time in the performance of a contract. But* the parties may make time the essence of the contract, so that the court will not interfere to aid the party who is in default, unless he can offer some good excuse, as mistake or accident, for such de- fault. Benedict v. Lynch (1 J. G. JK. 370), and cases there referred to ; or where the character of the contract is such that by the payment of money, or otherwise, it has been partly fulfilled, and the default is made under such circum- stances as to render it unconscionable to insist upon the for- feiture. Wills v. Smith, 7 Paige 22. Edgerton v. Peckhain (11 Paige 352), was a case where there was an agreement for the sale of a lot of land for $300, one-third to be paid down, and the residue in one and two years, with interest. There was a provision in the agreement, that if the purchaser should make default in either of the payments, the vendor should be discharged from the agreement, and the purchaser forfeit all the pre- vious payments. The first two instalments were paid at 584 COURT OF ERRORS AND APPEALS. % Baldwin v. Van Vorst. the specified time, and the vendor signed the agreement to the complainant, who made default in the last payment. He was not called upon by the vendor to fulfil the contract, and in a few days after the default he tendered the money and demanded a deed, which the vendor refused to give, and insisted upon the forfeiture. But the court relieved against the forfeiture. The propriety of the court's grant- ing relief in a case like that, commends itself to our natural sense of what is just and right. To insist upon a forfeiture under such circumstances was an act of great hardship and oppression ; it was against good conscience to enforce the agreement as the parties then stood. There is a large number of cases referred to and commented upon by the Yice Chancellor, in Edgerion v. Peckham^ illustrating the principles which govern the court in exer- cising jurisdiction in reference to contracts, where time is any way material to their performance. But I cannot in this case see any ground for equitable relief. The agree- ment itself is a reasonable one. Time is the essence of the contract, and there was no hardship in making it so. The agreement is altogether executory, and no act has been done, by either party, to change the position of the parties, so as to make it oppressive in the complainant to call for the fulfilment of the agreement. The defendant offers no excuse for his default, not even that of negligence, or of his inability to raise the money at the day. From anything appearing to the contrary, the default was wilful and without excuse, and intended to harass and incon- venience the complainant by withholding from him his interest money. The defendant made no amends for his default until he was compelled to do so by the complain- ant's exhibiting his bill in this court. If I relieve the defendant in this case, I must take the ground, that a person cannot make a loan upon condition that the credit shall be a long or a short one, depending upon the prompt- ness of the borrower's paying the interest ; and that if the agreement is that the borrower shall have ten years' credit JUNE TEEM, 1856. 585 Baldwin v. Van Vorst. if he pays his interest promptly, but a. shorter time if he makes default, though he makes default this court will give him the long credit in spite of the agreement. See 3 Powell on Mortgages 902 ; Stanhope v. Manners, 2 Eden 197 ; Halifax v. Higgins, 2 Yes. 134 ; Proctor v. Cooper, Vann. 397 ; Burton v. Slattery, 3 B. C. P. 68 ; Sparlcs v. Liverpool Water Works, 13 Ves. 433. There is a class of cases in reference to leases where the court has interposed to prevent a forfeiture where a right of entry is stipulated in the lease in case of the non- payment of the rent at the regular days of payment. But in those cases the court interferes on the ground, that the right of entry is intended as a mere security for the pay- ment of rent, and that when the rent is paid the end is ob- tained. Story's Eq. N. S. 1315 ; Wadman v. Calcraft (10 Ves. Jr. 69) ; Sanders v. Pope, (12 Ves. 284) ; Bracebridge v. Buckley (2 Prior's Ex. It. 216). As I have before remarked in this case, the penalty of $80,000 was intended to secure the payment of the prin- cipal money. But this additional agreement was intended for another purpose, to secure the prompt payment of the interest to grow due on the debt. If it fails to accomplish this, its only aim and object are frustrated ; the intention of the parties is defeated. I can see no principle of equity to justify the court's interference to give the defendant relief against the for- feiture. The complainant is entitled to a decree for his principal money and interest. The appeal was argued by 4 Zdbriskie, for appellant. Gilchrist, for respondent. The decision of the Chancellor was affirmed by the fol- lowing vote : 586 COTJKT OF EKKOES AOT) APPEALS. Baldwin v. Van Vorst. For affirmance CHIEF JUSTICE, Judges ARROWSMITH, HAINES, POTTS, YALENTINE, CORNELISCXN, HUTLEE, RISLEY, WILLS, OGDEN, RYERSON. For reversal None. CITED in Martin v. Melville, 3 Stock. 233 ; De Groot v. McCotter, 4 C. E. Or. 533; Spring v. Fisk, 6 O. E. Gr. 179; Origgs v. Landis, 6 C. E. Or. 515 INDEX. ADEMPTION. The intention of the testator is the es- sence of ademption of a legacy. "When an advancement is relied upon as an ademption, two facts in ist be established, the advance- ment, and the intention of the tes- tator that it should be in satisfac- tion, or a substitute for the bequest. Sims v. Sims, 153 AGREEMENT. See HUSBA.ICD AND "Wira. Parol evidence is not admissible to ex- plain a written agreement when there is no ambiguity apparent on tha face of it. Speer v. Whitjleld et al., 10 r M. D. W., A. P. W., C. W., and M. W. entered into an agreement with O. D. A. to convey to him a tract of Ian I for $400. Q. D. A. paid down $150 on the agreement, and was to have a deed on the payment of the balance of the money. Q. D. A. as- signed the agreement to J. C. , as so- curity for the payment of a note of $150. J. C. diei, leaving several children her heirs at law, and a will, with one J. H. executor. The heirs at law of J. C. assigned the agree- ment, for the consideration of $30.), to C. W. , one of the original parties to the agreement* C. W. then as- signed the agreement to the com- plainant M. D. W., A. P. W., and C. W., three of the parties to the original agreement, died, leaving M. W., another party to the agree- ment, surviving. The bill is filed against M. W. and W. P. 8., the exector of C. W., for a specific per- formance. The heirs at law of J. C. had no right to assign the agreement. She held it merely as a mortgage security, and her interest in it passed, at her death, to her executor, and not to her heirs at law. The bill does not show that the heirs of J. C. could make any title to the agreement. M. W. and A. P. W., original parties to the agreement, being dead, their heirs at law should be parties to the suit. G. D. A., the party of the second part to the original agreement, being dead, his personal representat.ive should be a party to the suit. G. D. A., having assigned the agreement only as collateral for a debt, re- tained an interest in the agreement. Miller v. Henderson, 320 Wh.ere the testator directs a sale of land to be made, and the proceeds to be divided among his heirs at law, they may elect to take the lands, and a court of equity will secure to them the benefit of that election. So where all interested had entered into an agreement to divide the real estate itself in such proportions as they deemed just in reference to their respective interest in the pro- ceeds, and it appeared that the par- ties had lived ten years under the agreement; that the ownership of the property had become so changed that the agreement could not be disturbed without grossly violating the rights of some of the parties to it, ancT fraudulently depriving them of their property ; that the executors had acquiesced in it, and induced such a state of things as made it a fraud in them to disturb it, the court said, that the plea that such an agreement was illegal because one or the parties was a feme covert, came with an ill grace as a defence on the part of the executors, who had subsequently sold a portion of the property released under the agreement. Scudder v. Stout, 377 At the time of the execution of the agreement, the husband of one of the parties had been absent six yean 588 INDEX. and upwards. The report was that he was dead: it was so considered by the family. When the executors sold the property, he had been ab- sent sixteen years, and the party was married again. At that time no court of law or equity would have disturbed the agreement on the ground alleged. ib But although the executors acted in bad faith, and in violation of the rights of those interested in the will of the testator, it does not follow, as a consequence of their fraud, that a sale made by them is void, they being authorized by the will to sell the land, and there being no proof that the grantees were cog- nizant of the agreement. ib Where the purchase money of such sale had been wrongfully paid over to one not entitled to if, the court held complainants entitled to an ac- count, and ordered the money brought into court. ib Although the business he carried on in the name of one alone, and neither suppose that they are partners, al- though they did not intend to be- come partners, and. as between themselves, were not partners, yet the law may hold them liable as partners as to third persons upon an agreement to share in the profits. Sheridan v. Medara, 4t>9 As a general rule, courts of equity will not regard time in the perform- ance of a contract. But the parties may make time the essence of the contract, so that the court will not interfere to aid the party who is in default, unless he can offer some good excuse, as mistake or accident, for such default. Baldwin v. Van Vorst. 577 ALIMONY. The Court of Chancery has no power to decree alimony, except as inci- dent to divorce, except in the single case provided for by the 10th sec- tion of the statute. Yule v. Yule, 138 Upon a bill filed for alimony only, the court may make an order for a ne exeat before alimony is fixed, ib AMBIGUITY. When parol testimony admissible to dispel a doubt upon the tnie sense ana meaning of words. Hartwell v. Camman, 128 Parol testimony sometimes admitted ex necessitate, and when the ambi- guity in an instrument is created by extrinsic evidence, it may be re- moved by the same. t'6 ASSIGNMENT. A judgment creditor may assign a part of his interest in a judgment. If he assigns the debt, a court of equity will secure to the assignee the benefit of the judgment. Sneer v. Whitfield et al., 107 An assignee of a bond takes it subject to all the equities which existed at the time of the assignment between the obligor and the obligee. But if A. executes to B. his bond, and takes, as a consideration for it, B's prommissory note at ninety days, if B. assigns the bond to C. before the note becomes due, A. cannot resist the payment of his bond in the as- signee's hand on the ground of a failure of consideration. Cornish v. Bri/an. 146 M. D. W., A. P. W., C. W., and M. W. entered into an agreement with G. D. A. to convey to- him a tract of land for $400. G. D. A. paid down $150 on the agreement, and was to have a deed on the payment of the balance of the money. G. D. A. assigned the agreement to J. C., as security for the payment of a note of $150. J. C. died, leav- ing several children her heirs at law, and a will, with one J. H. ex- ecutor. The heirs at law of J. C. assigned the agreement for the con- sideration of $200, to C. W., one of the original parties to the agree- ment. C. W. then assigned the agreement to the complainant. M. D. W.. A. P. W., and C. W., three of the parties to the original agree- ment, died leaving M. W., another party to the agreement, surviving. The "bill is filed against M. W. and W. P. S., the executor of C. W. for a specific performance. The heirs at laiv of J. C. had no right to assign the agreement. She held it merely as a mortgage security, and her interest in it passed, at her death, to her executor, and not to her heirs at law. The bill does not show that the heirs of J. C. could make any title to the agreement. Miller v. Henderson, o20 A n assignment may be fraudulent al- though it was marie for a valuable consideration. If the purchase was INDEX. 589 not bona fide but was made to de- ! prommissory note at ninety days, if fraud creditors, the asssignment is ** ooc^n,*, *t.^ i,^ ^ *~ /- i * ^i_ . not valid, although an adequate con sideration was given. Wilson v Groj/,323. AWARD. To justify this court's interfering with an award, it must be shown there was fraud, mistake, or accident. The accident must be such as to have deprived the party of the benefit o; a hearing or of some, substantia right ; the fraud must amount to corruption, partiality, or gross mis- behavior in the arbitrators ; and the mistake, if in law, must be a plain one, upon some material point affecting the case. If a matter of fact, it must, in general, be such as te arbitrator himself would admit, such as a miscalculation in an ac- count, and the like. Veghte v. Hoag- land. 45 Where the bill stated the " awird was not for damages which in the opin- ion of the said arbitrators had ac- crued subsequent to the said twenty- second day of October, in the year 1S47," and" which alone were submit- ted to them to be arbitrated, the testimony of the arbitrators them- selves was held to be conclusive upon it. ib A complainant cannot invoke the aid of a court of equity on the ground that an award was illegal, because not in pursuance of the submission. When it appears by the bill itself, that the parties mutually agreed to the course pursued by the arbitra- tors in the matter complained of, it would be against equity and good conscience to permit the complain- ant thus to repudiate his own acts, ib BOND. This court has the power to order a bond or other instrument to be de- . livered up to be cancelled, and the court may properly exercise the power, although the grounds upon which the jurisdiction of the court is invoked may constitute a valid defence at law' against the writing. Cornish v. Bryan. 146 An assignee of a bond, takes it sub- ject to all the equities which existed at the time of the assignment be- tween the obligor and obligee. ib But if A. executes to B. his bond, and takes as a consideration for it, B's VOL. u 3 B. assigns the bond to C. before the note becomes due. A. cannot resist the payment of his bond in the as- signee's hand on the ground of a failure of consideration. ib CONSTITUTIONAL LAW. The supplement to the Newark and Bloomiield Railroad Company does not contravene the article of the constitution of this state, which de- clares that every law shall embrace but one object, and that shall be ex- pressed in the title, as the objects in the statute are part of the same en- terprise, and have a proper relation to one another. Giffoiil v. N. J. Railroad Co. 171 The legislature, on the 17th of March, 1854, passed an act declaring Little Timber creek to be a public high- way, in all respects as fully as it was before the said creek was dammed at its mouth ; and the township com- mittee is authorized and required, at the expense of the township, to re- move the dam, and thereby open the navigation of the creek. The bill was filed to enjoin the township committee from discharging the duty imposed upon them by this act. Held, that the legislature had the right to authorize the obstruction of the creek, there being nothing in the case to show that its navigation was demanded by the public interest. Glover v. Powxll. 211 't does not follow that any creek, or rivulet in which the tide ebbs and flows, and which may be navigated at certain tides by small boats ? is to be dignified with the appellation of an arm of the sea, or navigable river, and, as such, is beyond the ju- risdiction or control of the legisla- ture, except as a public high way. t& rho act of the legislature, passed the- 17th March, 1854, which authorizes and requires the township commit- tee to remove the dam, is in violation of the constitution of the United States, which declares that no state shall pass any bill of attainder, -.>- paste facto law, or law impairing the obligation of contracts. It was a virtual repeal of the act of 1760, under the pro visions of which rights had btcomo vested, and valuable property had been acquired. It is in violation of good faith. It impair* the obligation of a contract. 16 590 IKDEX. The act of 1854 was also repugnant to the constitution of the state of New Jersey, as taking private property for public use without just compen- sation, ib A partial destruction or diminution of value is the taking of private pro- perty, ib The city of Newark has authority, by its charter, to grade and regulate its public highways; the owners of pro- perty adjacent to such improve- ments have no legal claim upon the city for incidental damages. In the exercise of its chartered pow- ers, the city has no right to occupy or appropriate private property without making compensation, nor would its authorities be permitted to do any wanton or unnecessary damage, direct or incidental, to any individual's property. But the mere discretion of the city authorities cannot be interfered with, or in any manner controlled by this court, so long as that discretion is exercised within its appropriate and legal lim- its. Plumb et al. v. The Morris Canal and Banking Co. et. al., 256 The authorit y to use a publif highway for the purposes of a railroad, ro- taining the use of such highway for all ordinary purposes, subject only to the inconvenience of the railroad, is not such taking of private pro- perty from the owner of the fee of the adjacent lands as is contemplat- ed by the provision of the constitu- tion, which provides that individu- als or private corporations shall not be authorized to take private pro- perty for public use without just compensation first made to the owners. The easement of the high- way is in the public, although the fee" is technically in the adjacent owner. It is the easement only which is appropriated, and no right or title of the owner interfered with. If the legislature authorizes the company to take the highway, and appropriate it to its own use, by de- stroying the ordinary and legal right of the public to use it as a highway, then compensation must be provided ; because when the rights of the public in it ceases, then the use of it reverts to the person who holds the fee in the land. Then the legislature authorizes to be taken something which belongs to the land owners, to wit, the use of the land. It follows further, that an adjacent land owner cannot maintain an ac- tion at law for consequential dama- ges, unless he can show a negligent* exercise by the company of their legal rights; because no action tit laiv will lie for a consequential in- jury necessarily resulting from the exercise of a legal right under legislative^ authority. Morris and Essex Railroad v. Newark, 352 CONDITION. SEE DEED. COVENANT. SEE DEED. CORPORATION. The object of "the act to prevent frauds by incorporated companies " is to secure to the creditors of such institutions an equal distribution of its assets. This is the primary object of the statute. Any act done with the view, and for the purpose of de- feating this object, is a fraud upon the act, and is illegal. Our courts have always recognised the object and provisions of the act in question and the bankrupt laws to be essentially the same ; and if it is to be considered as partaking of the character of a bankrupt law, it is proper to apply to it the general rules that govern the system, where it is in use. Receivers of Peoples Bank v. Paterson Savings Bank, 13 Where a bank has become so hopeless- ly insolvent that the directors are forced to the conclusion that it is incumbent upon them at once to close the doors of the bank, and abandon the objects for which the institution was incorporated, the cashier may lawfully meet all de- mands made upon it, up to the moment the bank suspends pay- ment, and all such payments are valid. But he cannot, while he is dealing out to importunate creditors their legal demands with one hand, with the other, place the assets of the bank in his pocket for absent friends and favorites. The diligent creditor may acquire rights which the law will not disturb, but there is a distinction between a voluntary preference of a creditor by the INDEX. 591 debtor, and a payment forced from him by an importunate creditor. So where one of the directors of the bank puts a note in his pocket to de- liver to a creditor, for the purpose of giving him a preference, to which he was not entitled by any diligence of his own, it was held not to be a payment in the usual course of dealing. w The assignment and transfer of prom- issory notes, in contemplation of the insolvency of an incorporated com- pany, is declared by the act to be utterly null and void as against creditors, and where a voluntary preference is given to a creditor, for the sole purpose of giving him an advantage over other creditors, and under such circumstances that it cannot be said to be made in the ordinary course of business, it is in direct violation of the second section of the act. ib This court will not assume a jurisdic- diction to try the lawful election of officers and the validity of ordinan- ces of corporate bodies upon the mere allegation that the complain- ants are holders of real estate in a city, and that the value of their property is directly involved in pro- ceedings which are going on and threatened, and that the prooceed- ings are useless, and will tend to depreciate their property in value. Kearney v. Andrews. 70 The power of filling vacancies being incident to a corporation, it has the right, by its by-laws, to prescribe the manner in which such vacancy shall be filled, provided it is not in- consistent with the design of the charter. ib The city council of Perth Amboy have no right to elect its own members ; the law declares that the members constituting the city council shall be elected bv the electors of the city by ballot. The city council cannot confer this authority elsewhere, nor can they usurp it themselves. ifr The provisions in the act to incorpor- ate the city of Perth Amboy, that the oaths of office should be taken and subscribed within ten days after the election, is directory only, and an alderman and members* duly elected did not forfeit their offices by their neglect of being sworn in within ten days after their elec- tion, -ib The citv of Newark has authority, by its charter, to grade and regulate its public highways; the owners of propeity adjacent to such improve- ment have no legal claim upon the city for incidental damages. In the exercise of its chartered powers, the city has no right to occupy or appropriate private property witk- put making compensation, nor would its authonties be permitted to do any wanton or unnecessary damage, direct or incidental, to any indi- vidual's property. But the mere discretion of the citv authorities cannot be interfered with, or in any manner controlled by this court, as long as that discretion is exercised within its appropriate and legal limits. Plum et at. v. Morris Canal and Banking Co. et al., 256 A court of equity will interfere on be- half of a single stockholder, if he can show that the corporation are employing their statutory powers, funds, &c. , for the accomplishment of purposes not within the scope of their institution, and an injunction in such cases will be granted. But it is well settled that, acting within the scope and in obedience to the provisions of the constitution of the corporation, the will of the majori- ty, duly expressed at a legally con- stituted assembly, must govern. Crifford v. New Jersey Railroad Co. 171 The legislature may give additional power, from time to time, to corpo- rations ; and acts of the corporation, in pursuance of such authority, are binding, unless they conflict with vested rights or impair the obliga- tion of contracts. ib By the supplement of the charter of the Newark and Bloomfield Rail- road Company, passed March '26th, 1852. 3, it is enacted, that nothing in the supplement contained shall be construed to impair, in any man- ner, any reversionary interest or vested right which the state, or any incorporated company or com- panies, or any individual, may i>O8- sess under the charter of the Bridge Company. This provision is also, m effect, contained in the constitute . ft A stockholder of tho Bridge Company has a vested ri^ht in the value of his stock and interest in the fran- chise of exclusive tolls, and, as an- cillary to this, an interest in the exclusive right of building bridges over the rivers Passaic and Hacken- sack. Any act of the incorporation impair- ing those rights of a stockholder without his consent, either cxprc IKDEX. or implied would not be binding on him under the above provisions, ex- cept in a proceeding authorizing the taking of private property for pub- lic uses upon making compensation. But long acquiescence will be consid- ered as equivalent to a consent, and whatever ground of equity an indi- vidual stockholder may have had, a counter equity may arise from lapse of time. ib The supplement to the Newark and Bloomfleld Railroad Company does not contravene the article of the con- stitution of this state, which declares that every law shall embrace but one object, and that shall be expressed in the title, as the objects in the statute are parts of the same enterprise, and have a proper relation to one another. ib The Morris and Essex Railroad Com pany have no right to occupy or use Broad and Centre streets, in the city of Newark, in the manner the same are now appropriated by them, with- out the consent of the mayor and common council of the city of New- ark. Morris and Essex Railroad Company vs. Newark. 352 The complainants were authorized to construct a railroad from Morris- town to Newark. That was the ob- ject of their incorporation; and it is manifest, from the whole act that it was the intention of the legislature to confer all the powers necessary to enable the corporators to carry out the object for which they were incorporated. But it does not follow that because the legislature intended to confer upon the company all the powers necessary for them to carry out the object for which they were incorporated, that they are there- fore necessarily clothed with all powers to meet that necessity; and that when not expressed, such pow- ers are to be derived by implication. In a limited sense, the proposition is true, when the power sought to be implied does not take away or im- pair the legal rights of individuals or of any other corporation. ib The public rights in the highways of the state can be impaired or inter- fered with by nothing short of the authority conferred by the sover- eign power. That authority must be expressly given ; or if conferred by implication, it must be a necessary implication. Held, that the right is not given by this charter in express terms: and it cannot be implied, from any of its provisions to appropriate, for the purpose of their railroad, more than one half mile of the principal public highway of Newark without the consent of the appropriate pub- lic authorities of the city. That the acts of defendants, upon which complainants rely as estab- lishing consent, are not sufficient. There was no license given to the company, either by parol or in writing; and no fraud can be in- ferred from the fact, that the de- fendants did not interfere, but stood by in silence, while the com- plainants expended their money in the construction of their road upon the public highways. There is no legislative sanction, either in the supplement of 3d March, 1836 or in the further supplement of 22d February, 1838, to the company's occupying any public highway, without first obtaining the consent of the proper legal authorities. They will not warrant such a con- struction, ib The charter declared that the capital stock should be actually paid in be- fore it should be lawful for the said company to commence the business of insurance, and the company is authorized to invest its capital in public stocks, bonds, and mortgages, and such other securities as the di- rectors may approve. It appeared that the whole capital was securely invested; that the subscription to the stock was made in good faith ; that the company went on and in- sured upon the faith of this. capital. It was held that individuals who gave their obligations to constitute this capital could not repudiate them on the ground that the stock had not been subscribed and paid in. The securities are not void because, instead of going through the for- mality of receiving the money, and then paying it back and taking se- curities, the directors took the secu- rities without this ceremony. One stockholder in a company, be- cause he has an unsettled account with them, or any other matter of dispute, has no right to bring a com- pany into this court to settle all their accounts as a company. Yard v. Ins. Co. 480 Admitting it to be true that the capital stock of an insurance company was not bona fide paid in, and that the company commenced the business of insurance in violation of the express provision of the charter, yet thia court ought not to interfere with suits brought upon bonds in a court INDEX. 593 of law for the purpose of aiding the complainants to avoid their pay- ment, where it appears the bonds were given in payment for the stock of the company, 'that the complain- ant received his certificate of stock, and that upon these bonds, as a por- tion of the capital, the company embarked in business. The question is a legal one, and the complainant may avail himself of it, as far as it is a defence in the suit at law. tfe DEBTOR AND CREDITOR. If a bankrupt, in course of payment, pays a creditor, this is a fair ad- vantage in the course of trade ; or if a creditor threatens legal diligence, and there is no collusion, or begins to sue a debtor, and he makes an assignment of part of his goods, it is a fair transaction, and what a man might do without having any Dankruptcy in view. But if a man in contemplation of an act of bank- ruptcy, dispose of all his effects to use of different creditors, it would be a fraud upon the acts of bank- ruptcy ; but if done in the course of trade, and not fraudulent, it may be supported. Peoples Bank v. Pat. Sav. Bank. 13 The diligent creditor may acquire rights which the law may not dis- turb, but there is a distinction be- tween a voluntary preference of a creditor by the debtor, and a pay- ment forced from him by an im- portune creditor. 16 A judgment creditor, or his assignee, cannot, after the judgment has been paid in any way, give it vitality against the judgment debtor, and!, of course, not against his creditors. The assignee takes it subject to all the equities between the original parties. Stout v. Vankirk. 79 Nor can the debtor himself, after he has paid the judgment, in any way revive it against a bona fidf. mort- gage or judgment creditor, who had a hen at the time of payment, or acquired prior to the act of the debtor, by which it is sought to affect his lien. ib Payment by the debtor operates for the benefit, and as a release in favor of creditors having liens on the same fund bound by the judg- ment. t'6 A judgment creditor may assign a part of his interest in a judgment. If he assigns tho debt, a court of equity will secure to the assignee VOL. n 3 D' the benefit of the judgment. Sneer v. Whitfield et al., 107 An assignment may be fraudulent al though it was made for a valuable consideration. If the purchase was not bona fide, but was made to de- fraud creditors, the assignment is not valid, although an adequate consideration was given. Wilson v. Gray, 323. A father placed trust funds in the hands or his son in law, for the benefit of his daughter. The son in law purchased real estate with the trust funds, and took the deed in his own name. Held, that the court would protect the real estate against a judgment and execution creditor of the hus- band. Lathrop v. Gilbert. 344 Where property is so held by the hus- band, and he expends his own money, to a large amount, in mak- ing improvements upon the trust propertv, for the purpose of protect- ing it from his creditors, the court might properly refuse its aid in pro- tecting the trust property, and certainly would not interfere, ex- cept so far as to protect the f unu in the property belonging to the wife. tfe Benjamin Parkhurst was a large trader, doing business in the city of Newark. In the course of his trade, he purchased goods of the defend- ants, who were merchants in the city of New York. It appeared, from the answer, that Parkhurst was indebted to them in the sum of one thousand eight hundred and fifty-five dollars and twenty-three cents, for goods sold, &c., and in the further sum of twelve hundred and seven dollars and seventy-two cents, for money lent and advanced. Parkhurst applied to one of the de- fendants for further advances of money, and in order to secure them for such advances and credit as de- fendants might give, as well as tho then existing indebtedness, it was agreed that Parkhurst should con- fess a judgment for ten thousand dollars to the defendant, in consid- eration of his then indebtedness of throe thousand and sixty -two dollars and ninety-five cents, and that th defendants should advance to Jiim money and goods, from time to time, as he should desire the same, to the amount of the difference be tween the sum last named and tho sum for which the judgment was to be confessed. To carry out this arrangement, the defendants gave 594 INDEX. to Parkhurst their note for six thousand nine hundred and forty- seven dollars and six cents, as a security to him for their making the advances, and for giving credit as agreed between them, with the understanding, that as advances were made, corresponding endorse- ments were to be made on the note. That under this arrangement the judgment was confessed, and the defendant advanced Parkhurst in cash five thousand nine hundred and sixty-five dollars and seventy- two cents, and in goods two hun- dred and thirteen dollars and sev- enty-five cents, making, with the original indebtedness, the sum of nine thousand two hundred and forty-two dollars and forty-two cents. Held, that there was no reason to doubt, from anything that ap- peared on the face of the answer, but that the defendants took their judgment in good faith to secure a debt honestly due them and to pro- tect them in such further advances as they might make to their debtor. It did not "appear that there was any affidavit in the case, and it was in- sisted that a judgment cannot be confessed for future advances, be- cause the plaintiff cannot swear 11 that the debt is justly and honest- ly due and owing, and that the court should not allow the defend- ants to enforce their judgment, as it was in contravention of the stat- ute. But it was held that the only ground of jurisdiction in this court to interfere with the judgment would be that it was fraudulent. They could not declare the judgment void as against creditors, simply because the judge or court had suf- fered it to be entered up in viola- tion of the statute. It is the conscience of the party which this court is to test, and not the legality of the judgment, or to cor- . rect the error of a court of law. Clapp v. Ely. 178 At law, a judgment and execution constitutes no lien upon a mere equitable interest. Halsted v. Da- mson, 290 A court of equity may aid the judg- ment creditor in reaching that in- terest, and secure to him a prefer- ence, to which by diligence he has entitled himself. ib A judgment and excution creditor cannot subject a property, in which an equitable interest had been se- cured to his debtor by declaration of trust, to the payment of the judgment debt. Where there has been no fraud in the transaction, no property of the debtor covered up by it, no creditor injured; where the debtor has never paid any part of the consideration money, or ever had any legal title to the property in question. to If the debtor had ever paid any money upon the property, to the extent of such payment, the court might subject the property to the execution, on the ground of its be- ing the debtor's own earnings. ib As a general principle, when an ex- ecution creditor has acquired an equitable lien, it cannot be de- stroyed or impaired by the volun- tary act of the debtor or his trus- tee, ib An equitable lien may be lost by negli- gence and unreasonable delay. ib A debtor has a perfect right to prefer a creditor, and he may make that preference by a mortgage, as well as by any other mode 01 security. The mortgage will be a valid en- cumbrance on the premises. Jones v. Naughright, 298 Money for which a judgment is con- fessed may be honestly due, and yet the judgment not bona fide, if it was confessed not for the purpose of securing the debt, but as a fraudulent cover to the property, and to protect it from another creditor, it should be set aside as fraudulent. But to establish the fraud in such a case, the proof of it should be clear and satis- factory, ib It would require very strong and con- vincing circumstances unexplained to justify the inference that a judg- ment was fraudulent, when it was proved, beyond doubt, that the debt was justly and honestly due. ib J. K., of the firm of McM., R. & Co., when the firm was in failing cir- cumstances, conveyed his real es- tate to P. D. , in trust for his wife. The deed was set aside in favor of the complainants, who were judg- ment and execution creditors of the firm, on the ground, that from the answer of the defendants, and the proofs in the case, it appeared that no consideration was paid, and that it was executed for the purpose of protecting the property from the creditors of the firm. Wilson v. King. 396 That a judgment and execution credi- tor may maintain a bill in a court of equity to remove out of the way INDEX. 595 fraudulent encumbrances placed by a debtor upon his property, in order that the property may be appropri- ated free from such fraudulent en- cumbrances to the satisfaction of the creditor's judgment, is well estab- lished. Dunham v. Cox, 437 When a creditor has by a judgment es- tablished his debt, by the statute he acquires a lien upon all the real estate of his debtor to saisfy his debt. If the debtor has fraudulently convey- ed away or encumbered his real es- tate, so as to interpose an obstacle which embarrasses the debtor in ap- propriating it by legal process in sat- isfaction of his debt, then the credit- or may file his bill to remove out of the way such fraudulent conveyance or encumbrance. It is not necessary for him to take out execution upon t~ Is judgment. It is, perhaps, most advisable for him to do so ; it may avoid a contest with a subsequent execution creditor. ib But if it is the personal property of the debtor which the creditor wishes to reach and appropriate to the pay- ment of his judgment, he must take out an execution upon his judgment before he can exhibit his bill ; for it is by the execution, and not by the judgment, that he acquires a lien ipon the personal property. ib It is not enough for the bill to show that the debtor has made a fraudulent disposition of any particular portion of his property to entitle the creditor to the aid of a court of equity; he must show that such disposition em- barrasses him in obtaining satisfac- tion of his debt. Facts must be sta- ted from which, at least, the infer ence may be drawn that the aid of a court of equity is required to give the judgment its legal and full ef- fect, ib Bill defective on demurrer. ib Where money was loaned at six per cent., but in case the debtor's busi- ness succeeded, he was to pay twen- ty-live per cent., such contract, though usurious -is to t lie borrower, as to third persons made the debtor and cre me can one**?- in a decree, except a party to't .*r vine one whobe rights are impaired by it. Terhune v. Col- ton, 21 Where a complainant did not claim under any party to a decree, and his lien upon mortgaged premises was acquired subsequent to it, and he did not impeach it for fraud, mis- take, or accident, but, on the con- trary, admitted that the decree was entered in good faith between the parties, and there was nothing con- nected with the suit, or the manner in which the decree was entered, or in the claim upon which it was founded, to justify the court in re- fusing to protect and enforce the rights of the respective parties un- der the decree, the court would not go behind the decree. ' ib Honest efforts on the part of those having claims under a decree to secure their debt, consistent with the fact, that the debt was acknowledged due, and was secured by the decree, do not prove that they released their security or abandoned their rights under the decree. ib DEED. Farol evidence is admissible for the purpose of showing a mistake in a deed. McKelway v. Armour, 115 ' A deed may convey a distinct inherit- ance in mines, the fee to the land re- maining in the grantor. When not severed from the general title to the lands, they will pass with the lands without being expressly mentioned in the deed. i Construction of a deed conveying mines and minerals, and the respec- tive rights of grantor and grantee. Hartu-fUv. Caminan, 128 By a conveyance of all " mines and minerals," the grant does not em- brace anything in the mineral king- dom, as distinguished from what belongs to tho animul and vegeta- ble, nor is such a grant confined to anv one of tlie sul>ordinate divis- ions into which the mineral king- dom is subdivided by chemists. ib A paint stone, which is found instrala below the siirfm* of the soil, and distinct frx.ni tho ordinary earth, and worked ly tho ordinary means of mining, will pas* under the terms mines and mineral*. ib The owner of a valuable farm, situa- ted on tho river Delaware, convoyed to the Trenton Delaware Kails Com- pany, their mcconon and assigns, a 596 INDEX. portion of his farm adjoining the riv- er, and across which they had loca- ted their main raceway, " subject nevertheless to the following pro- viso: that if the said main race- way shall not be made on said pre- mises in conformity to the act in- corporating said company, the said lands and premises shall revert to the said George Woodruff T his heirs and assigns. And also, that the said party of the second part shall erect, maintain, and keep in good repair, a safe, convenient, and substantial bridge across the said main raceway, at a place to be desig- nated by the said grantor ; and also cause to be made and kept in order a convenient landing place on the side next the river Delaware, so that wagons may at all times safely pass over the same ; and shall also erect and maintain all necessary fences across the said main raceway, to- gether with fences across the said premises ; and shall also permit the said party of the first part to use the said raceway to give drink to his cat- tle, and also to take ice therefrom to fill his ice-house. The grantees cut the main raceway, and it came into the possession of the defendants, as assignees of the grantees, by virtue of several acts of the legislature. The bill alleges that the grantees and the defendants have always refused to perform their said covenants and agreements, and prays a specific per- formance and compensation for the injury sustained. Held, 1st, that if the matters men- tioned in the proviso of the deed could be legally regarded as cove- nants, and as such be enforced at law, the court would have no diffi- culty in declaring them to be cove- nants relating to the realty and running with the land, and that both the liability to perform them, and the right to take advantage of them, passed to the assignee of the land and of the reversion. Such a construction would not conflict with the principles established in Spen- cer's case, ~5 Coke 16. 2d. That there are no covenants con- tained in the deed on the part of the grantees. A condition is quite distinct from a covenant. The lan- guage is appropriate to create a condition, and as if to avoid any doubt, the legal consequences of a breach or violation of the condition is inserted. Upon covenants, the legal re?ponsi- bility of their nonfulfillment is, that the party violating them must re- spond in damages: the consequence of the nonfulfillment of a condition is a forfeiture of the estate. Wood- ruff v. Water J 'ower Co. 489 Parol evidence is not admissible to show that the consideration passing between the parties, and the terms upon which a conveyance is ex- pressed to have been made, are to- tally different and contradictory to the deed itself. The American authorities are more liberal' than the English in admit- ting parol testimony for some pur- poses relating to the consideration expressed in a deed. Adams v. Hudson Co. Bank. 5S5 DIVORCE. Charges of adultery are improper in a bill which prays for a divorce a mensa et thora only. So much of the evidence as related to acts of adultery suppressed. Sno- ver v. Snover. 261 After petition for divorce, on the ground of abuse and ill treatment, a motion to allow a counsel fee and maintenance pendente lite refused against a party who had been de- clared a lunatic by the court. The order implies a default and neg lect of a moral obligation on the part of the defendant, which can- not be imputed to a lunatic. Me Ewen v. McEwen. x.S6 DOWER Dower is a legal right, which is fa- vored both in law and equity. To debar the widow of this right, and put her to an election between her dower and a bequest in the will, there must be some express declara- tions of the testator excluding her from her right, or it must be clear, by implication, that such was his intention. Norris v. Clark. 51 In this case, the words were, ." I give, devise, and bequeath to my beloved wife, Elizabeth M. Clark, six hun- dred dollars, at the end of six months after my decease, and my gold watch, which she carries, and the silver teaspoons, the two sets of window blinds in the back room, and the hall lamp, which she brought me at or after our marriage ; and her acceptance of the above gift INDEX. 597 shall for ever exclude her from any further demands on my estate." It was insisted that the accept- ance of the gift excluded the widow from any further demand, only against the personal estate ; that the legacy was to be paid her by the executor, and that against that estate out of which the legacy was to be paid she was excluded from any further demands. It was held, that if the other parts of the will gave no further indication of the testator's intention, this construc- tion might prevail. But as the testator had put both real and per- sonal estate in the hands of the exe- cutor for disposition, and disposed of his whole estate, real and per- sonal, through the executor, the personal to pay the widow the leg- acy, and the disposition was incon- sistent with the widow's enjoyment of her legal right, it was the clear and manifest implication, from the whole will, that the testator did in- tend the gift to be in lieu of dower, and did not by the use of the word "estate" mean personal estate only. ib EASEMENT. A is the owner of two farms, through which runs a natural stream. He sells to B the farm upon which the watercourse has its origin ; A is en- titled to have the water flow upon the farm, which he reserves the same as he enjoyed it when he sever- ed his title, because the watercourse did not begin by the consent or the act of the parties, but ex hire natures. But water conveyed by pipes is a thing which is created and controlled oy the parties, and is, in its very nature, different from a natural watercourse. C.S. died, leaving a large farm,through which was an artificial watercourse. Proceedings were had in the Orphaiis' Court, for partition among the heirs, and a portion of the farm through which the artificial water- course run, was set off to part of the heirs, ami another portion was sold under an order of the court. Hold, that tho purchasers were en- titled to tho enjoyment of the watercourse as it existed at the time of sale. The act of the com- missioners was no such sevornnco of the unity of title as would govern the rights of tho grantor to the en- joyment of the watercourse. Although a man can have nucasement on his own land, yet, by the mere severance of his title, he may create such easement, and the test as to whether such easement is created, is whether it is essential to the beneficial enjoyment of the land conveyed. It is created ex necessi- tate, though not by the words of the grant. Brakely v. Sharp. 206. ESTOPPEL. Where any one has done an act or made a statement which it would be fraud on his part to controvert or impair, and such act or state- ment has so influenced any one that it has been acted upon, the party making it will be estopped and cut off from the power of retraction. Martin v. Righter. 570 EXECUTOR AND ADMINISTRA- TOR. The fact that a purchaser at an ad- ministrator's sale was a man of no means, that on the same day the administrator conveyed the pro- perty to him, he reconveyed it to the administrator, is sufficient proof, without any explanation of the transaction, that the purchase was made for the benefit of the adminis- trator. The deed in such cases is voidable. See Scott v. Gamble and Wife, 1 Stock. 23o, and Alulford v. Bowen, Ib. TV7; Obert v. Obert. 98 The rule of the common law is un- doubtedly well established, that a trustee, executor, or administrator shall have no allowance for lu's care or trouble. The Court of Chancery, independent of any statute law or local custom, has, with few excep- tions, aUopted this rule. Warbass v. Armstrong. 2ti3 In New Jersey the rule is different. Executors, "administrators, guard- ians, and trustees are allowed com- pensation by statute, and tho prin- cipal upon which allowance is to be made is regulated by statute. Tho statute declares it "shall be mado with reference to tlu-ir actual pains, trouble, and risk in settling the estate, rather than in respect to tho (fuantum of the estate. ib The commission i are a compensation for the faithful discharge of dutv. Where a testator gave discretion to trustees to wll land, ami directed that, if sold, tin 1 iinweds should Iw invested in pxxl landed security; held that if the funds arising from 598 INDEX. the sale had been in the hands of the trustees, and had remained so for a long period without any se- curity, that they had violated their duty as trustees, and were not en- titled to commissions. ib Trustees who did not invest accord- ing to the terms of the trust com- pelled to pay the costs of the suit, the complainant having been driven into litigation to establish the amount of the trust fund. ib If a person becomes surety for one as administrator, who at the time is a debtor to the estate and is insolvent, and is never able to discharge such indebtedness, such surety is not bound for such a delinquency of his principal. He is only bound for the faithful performance of his duties as administrator. If, under such circumstances, the ad- ministrator should, in the settle- ment of his accounts with the court, charge himself with the debt, and the accounts should be passed in such a shape as to bind the surety for the debt, the surety would be relieved, upon application to the proper tribunal, from such responsi- bility. Harker v. Irick. 269 But if at the time the surety assumes his responsibility, the administrator owes the estate, and is solvent and able to pay, the amount of the debt will be considered, in law and equity, as so much money in his hands as administrator at that time, and consequently the surety will be responsible for it. ib This court has concurrent jurisdiction _ with the Orphans Court in the set- ' tlement of accounts of executors and administrators. It may as- sume this jurisdiction to the exclu- sion of the Orphans Court in any case where the ends of justice may seem to require it. If any progress has been made in the Orphans Court in the settlement of an account, the Court of Chancery ought not to in- terfere with that tribunal, unless there is shown some good cause for its doing so. Clarke v. John- son. 287 Joseph M. Stilwell and Joseph R. Stilwell were the administrators of Benjamin Stilwell. They were both deceased. The bill called upon the executors of Joseph M. Stilwell for a resettlement, and to account for the estate of Benjamin Stilwell and to pay complainants their distributive share. Held, that if they were entitled to a distribu- tive share, they could net call upon the executors of a surviving ad- ministrator for any such account; that the executors did not represent the estate of Benjamin Stilwell. Benjamin Stilwell, at his death, left his brother, Joseph R. Stilwell, and two sisters surviving him. The complainants were the heirs at law and next of kin of Joseph R. Stil- well. Held, that as they stood in the place of Joseph R. Stilwell, they had no right to complain of his fraudulently using what they claimed through him. Garret v. Stilwell, Ex., 313 The testator directs that all the resi due of his personal estate, after payment of debts and legacies, shall be invested in productive real es- tate. This does not authorize the executors to purchase vacant lots, and erect buildings upon them. Such property cannot be considered productive real estate. The testator authorizes his executors to make suitable and convenient improvements and necessary re- pairs on the real estate in their pos- session. This, in connection with the language used as to the pur- chase of productive real estate, is inconsistent with the idea that the testator meant his executors to pur- chase vacant lots, and erect build- ings upon them. The testator directs the disposition of a surplus, which he contemplates will remain after the improvements made: this hardly comports with the idea that they should use the funds in their hands indiscriminate- ly in the erection of buildings. Hoi- combe v. Coryell, 392 FRAUD. To justify this court's interfering with an award, it must be shown there was fraud, mistake, or accident. The accident must be such as to have deprived the party of the benefit of a hearing or of some sub- stantial right: the fraud must amount to corruption, partially, or gross misbehavior in the arbitra- tors; and the mistake, if in law, must be a plain one, upon some material point affecting the case. If a matter of fact, it must, in gen- eral, be such as the arbitrator him- self would admit, such as a mis'cal- ' dilation in an account, and the like. Veghte v. Hoagland, 45 The fact, that a purchaser at an admi- INDEX. 599 nistrator's sale was a man of no means, that on the same day the ad- ministrator conveyed the property to him, he reconvened it to the ad- ministrator, is sufficient proof, with- out any explanation of the traiisacr tion, that the purchase was made for the benefit of the administrator. The deed in such case is voidable. See Scott, v. Gamble and Wife, 1 Stock. 235, andMulford v. Bowens, Ib. 797 ; Obert v. Obert, 98 A. employs B., as his agent, to pur- chase a house for him. B. makes the purchase, takes the deed in his own name, and pays his own money for it. A. cannot compel B. to con- vey. It is within the statute of frauds, which requires the contract to be in writing. In order to take the case out of the stat- ute, on the ground of part perform- ance, two things are requisite, the terms of the contract must be estab- lished by proofs to be clear, definite, and unequivocal, and the acts relied on as part performance must be ex- clusively referable to the contract. The disposition of courts at the pres- ent day is to limit, rather than ex- tend exceptions to the statute. Wal- lace v. Broivn, 308 Where a bill is filed for the correction of a mistake in the execution of a bond, and to restrain the defend- ants from taking advantage of the mistake in certain suits at law. the defendant may set up, as a defence against the complainant's right to re- lief, that the bond was procured by fraud. Hogencamp v. Ackerman, 267 Where the fact was established that the parties to a general release, at the time of the execution of it, under- stood perfectly that the object, and the sole object, was to make the re- lessee competent as a witness in a pending suit, it cannot be used to bar a recovery on a bond and mort- gage. That the relessee intended at the time to make use of the opportunity to obtain a general release, and turn the transaction from an innocent to a fraudulent purpose, makes him a fraud doer. ^Tiere anyone hns dono an art or made a statement which it would bo fraud on his part to controvert or im]>nir, and ftuch act or statement has w> in- fluenced any one that it has txvn acted upon, the party making it will be estopped and cut off from tho power of retraction. tighter, Martin v. 570 If a woman, during the course of a treaty of marriage with her, makes, without notice to the intended hus- band, a conveyance of any part of her property, though good prima facie, it may be set aside because affected with that f raud. In the case of actual fraud, a court of equity will not refuse relief on ac- count of lapse of time where the bill was filed with great prompt- ness after the supposed discovery of the alleged fraud was made. Wil- liams v. Carle, 543 The object of "the act to prevent frauds by incorporated companies" is to secure to the creditors of such institutions an equal distribution of its assets. This is the primary ob- ject of the statute. Any act 'done with the view and for the purpose of defeating this object, is a fraud upon the act, and is illegal. Peoples Bank v. Paterson Savings Bank, 13 Our courts have always recognised the object and provisions of the act in question and the bankrupt laws to be essentially the same; and if it is to be considered as partaking of the character of a bankrupt law, it is proper to apply to it the general rules that govern the system, where it is in use. ib If a bankrupt, in course of payment, pays a creditor, this is a fair advan- tage in the course of trade ; or if a creditor threatens legal diligence, and there is no collusion, or begins to sue a debtor, and he makes an as sig^imcnt of part of his goods, it is a fair transaction, and what a man might do without having any bank- ruptcy in view. But if a man, m contemplation of nn act of tank- ruptcy, dispose of all his effects to the use or different creditors, it would lw a fraud ution the acts of bnnkiiiptcy ; but if done in the course, of trade, and not fraudu- lent, it may lie Mipix>rU'd. ib Whore a bank 1ms hocomo so hn ly insolvent that the dint-tors are forced to the conclusion that it is in- cumbent upon them at OIHV to cltje the doors of the bank, and alxuulon the objects for which tho institution was inrorjxirutcd. the i-nhhh-r may lawfully UK i-t all demands made up- on it, up to tho inoi iiont t In- U'uik.Mi.s- pondK p:i\ m<-iit. and all -uc'i p:i>- iiii-nN are valid. But In- cannot, while- ho is dealing out to imjxir- tunnU) creditors thuir legal do. 600 INDEX. mands with one hand, with the other, place the assets of the bank in his pocket for absent friends and favorites. The diligent creditor may acquire rights which the law will not disturb, but there is a dis- tinction between a voluntai~y pref- erence of a creditor by the debtor, and a payment forced from him by an importunate creditor. So where one of the directors of the bank puts a note in his pocket to delivered to a creditor, for the pur- pose of giving him a preference, to which he was not entitled by any diligence of his own, it was held not to be a payment in the usual course of dealing. ib Tha assignment and transfer of prom- issory notes, in contemplation of the insolvency of an incorporated com- pany, is declared by the act to be ut- terly null and void as against cred- itors, and where a voluntary pref- .erence is given to a creditor, for the sole purpose of giving him an advantage over other creditors, and under such circumstances that it cannot be said to be made in the or- dinary course of business, it is in direct violation of the second sec- tion of the act. t'6 HIGHWAY. The legislature is the sole judge and arbitrator to determine when streams shall be considered as navi- gable rivers, and be maintained and protected as such. Glover v. Pow- ell, 211 The legislature has the power to au- thorize the use of a public highway for the purpose of a railroad, in such a manner as not entirely to destroy its use in the ordinary mode. The use of public highways belongs to the public, but they have not been dedicated to any particular mode of travel or use. It is perfectly con- sistent with the purpose for which they were originally designated apcl intended that the public au- j thorities, who have the control of ! them as public highways, should adapt them in their use to the con- \ vemence and improvement of the | age. Morris and Essex Railroad \ Co. v. Neivark. 352 | The legislature must be the judges as | to the benefit to the public, and to their authority individuals and the public must submit. ib The authority to use a public high- way for the purposes of a railroad, retaining the use of such highway for all Ordinary purposes, subject only to the inconvenience of the railroad, is not such taking of pri- vate property from the owner of the fee of the adjacent lands as is contemplated by the provision of the constitution, which provides that individuals or private corpora- tions shall not be authorized to take private property for public use without just compensation first made to the owners. The easement of the highway is in the public, al- though the fee is technically in the adjacent owner. It is the easement only which is appropriated, and no right or title of the owner inter- fered with. If the legislature au- thorizes the company to take the highway, and appropriate it to its own use, by destroying the ordi- nary and legal right of the public to use it as a highway, then com- pensation must be provided; be- cause when the right of the public in it ceases, then the use of it re- verts to the person who holds the fee in the land. Then the legisla- ture authorizes to be taken some- thing which belongs to the land owner, to wit, the use of the land. ib It follows further, that an adjacent land owner cannot maintain an ac- tion at law for consequential dam- ages, unless he can show a negligent exercise by the company of their legal rights; because no action at law urill lie for a consequential in- jury necessarily resulting from the exercise of a legal right under leg- islative authority. ib HUSBAND AND WIFE. The interest which the husband re- quires in the wife's inheritance is subject to judgment and execution against the husband. Husband and wife are jointly, seized in right of the wife. Nicholls v. O'Neil, 88 A feme covert cannot make any con- tract except as to her separate es- tate. Young v. Paufy 401 Where the refusal of the wife to unite with her husband in the conveyance was owing entirely to the contriv- ance and fraud of the defendant, who in this way was endeavoring to deprive the complainant of the benefit of a specific performance of the contract, that the court ordered the agreement performed, and the conveyance to be so made between INDEX. the parties the complainant may i Butz farm, and was thus placed in hold in the land which he conveys a position from which he could not an indemnity against any future claim to be set up by defendant's wife. It was objected that the wife was not a party to the bill, and that no de- cree could be made against her to execute the deed, as she was not a party. But the Chancellor said no decree could be made against her, if she were a party. If she had actu- ally signed the agreement with her husband, it would have been void as to her. ib A feme covert cannot make any con- tract, except as to her separate estate. Had the wife been made a defendant, a demurrer, as to her, would have been sustained. ib It was further said, that the deed ten- dered was a substantial compliance with the agreement, because it con- tained a covenant to indemnify the complainant; but it was hold" that no court would say that a mere personal covenant was sufficient in- demnity, ib A want of mutuality in the contract was urged as an objection against the decree, that the agent who signed for the complainant was not legally authorized; but it is no legal unyielding obstacle to the court's making a decree, that the contract is signed only by one of the parties. ib It was argued that the decree would in effect force the wife into ex- { ecuting the deed, which should be her free and voluntary act. The Chancellor said, " Upon a careful examination of all the authorities, if the alternative were presented to me of making a decree for specific performance by procuring the wife to join in the deed, or to dismiss the bill, I should accept the latter." ib The power of the court to direct in- demnity in such a case cannot be denied ; it is the proper and natural mode of administering equity be- tween the parties. ib ( ases where the wife's refusal to join was bona fide, and not the result of the husband's interference, or cases where an action for damages would give adequate redress, are not within the ruling in this case by RYERSON, J. o 1 he controlling equity of the case is, that upon the faith of this agm>- ment with Young, complainant was drawn into tho purcliase of the A f oL. n. 3 E extricate himself. He bought the farm, not for himself, but for Mr. Young. POTTS, J. ib If a woman, during the course of a treaty of marriage with her, makes, without notice to the intended hus- band, a conveyance of any part of her property, though good prima facie, it may be set aside because affected with that fraud. Williams v. Carle. 543 In the case of actual fraud, a court of equity will not refuse relief on ac- count of lapse of time where the bill was filed with great promptness after the supposed discovery of the alleged fraud wus made. ib If a woman, on the eve of her marri- age, rightfully placed a part of her estate in her sister's hands, in trust for the children of her intended marriage, and there were no chil- dren of the marriage, the fund be- longs to the husband on the death of the wife. ib Where there were children, who, as cestui que trusts, disclaimed title, and renounced all right to the fund, and declined to accept it, the fund belongs to the husband, as adminis- trator, ib INFANCY. A testator at his death left a widow, since deceased, and three minor children. His widow took a life estate only in the land and promiseo under his will. Some years after the death of testator, his widow conveyed the premises in question to a trustee, in trust for the benefit of her minor children, with power to dispose of and convev the same to the oest advantage. Tho trustee sold tho premises, and tho posses- sion of the premises hod since fol- lowed his conveyance. The court refused to enjoin the minor children from prosecuting on action of eject- ment, or to ordor them to execute conveyance.* or rel<'ns>s, as there was no evidence that thov, after arriving at ago, had a*wiitod to the sale, or recoiv<>d any omsidoration for it. Farley v. If'oodburn. U6 INJUNCTION. Tin's court has no right to itMittitonn inquiry into tho doctrines or mode of wordshipof any religious aorjpty, except such inquiry t>liull bocouio 602 INDEX. absolutely necessary for the protec- tion of trust property. Nor would it be justified in issuing an injunction to enjoin a clergyman, who without any pretence of right, should take upon himself to tres- pass upon a congregation, by enter- ing their pulpit, and promulgating his peculiar religious doctrines. Lutheran Church v. Jdaschop, 57 The court has no authority to enjoin a mere trespasser without shadow of right. ib The court cannot grant an injunction to allay the fears and apprehensions of individuals. They must show the court that the acts against which they ask protection are not only threatened, but will, in probability, be committed to their injury. ib An ordinance of the city of Perth Amboy, which ordained that the streets be graded and regulated, but did not specify how, nor refer to maps, profiles, or to any order or proceeding by or under the authori- ty of the council, by which it could be ascertained how the grading was to be done, was held to be in viola- tion of the rights of the land owners in the city, and unlawful, as they could not comply with its require- ments, and the act, if they did not do so within two months, deprived them of the privilege of doing it themselves. But although the ordinance is illegal, the court will not grant an injunc- tion simply on the ground of the illegality of the ordinance. The in- jury must be specified, and so pointed out that the court can see it must be the inevitable conse- quence of the act threatened and complained of. Kearney v. An- drews, 70 Where an injunction has been dis- solved for want of equity in the bill, the court will not grant an ex parte injunction upon an amended bill, or upon a new bill supplying that equity. Hornor v. Leeds, 86 A court of equity will interfere on behalf of a single stockholder, if he can show that the corporation are employing their statutory powers, funds, &c., for the accomplishment of purposes not within the scope of their institution, and an injunction in such cases will be granted. Gif- ford v. New Jersey Railroad Com- pany, 171 A subpoena must be taken out with the injunction, and made returnable within the time prescribed by the rule for a return of service of the injunction. The rule requires the injunction to be served within ten days after the issuing thereof, and a return of ser- vice made to the court within twen- ts days after such service. Lee v. Cargill, 331 The general rule is, that in order to obtain the dissolution of an injunc- tion, all the defendants must an- swer the equity of the bill. But the qualification of the rule is, that it is enough if those defendants an- swer upon whom the gravamen of the charge rests. Adams v. Hud- son County Bank, 535 JUDGMENT AND EXECUTION. A judgment creditor, or his assignee, cannot, after the judgment has been paid in any way, give it vitality against the judgment debtor, and, of course, not against his creditors. The assignee takes it subject to all the equities between the original parties. Nor can the debtor himself, after he has paid the judgment, in any way revive it against a bona fide mort- gage or judgment creditor, who had a lien at the time of payment, or acquired prior to the act of the debtor, by which it is sought to af- fect his lien. Stout v. Vankirk, 79 The interest which the husband ac- quires in the wife's inheritance is subject to judgment and execution against the husband. Husband and wife are jointly seized in right of the wife. Nicholls v. O'Neill, 88 Benjamin Parkhurst was a large trader, doing business in the city of Newark. In the course of his trade, he purchased goods of the defendants, who were merchants in the city of New' lork. It appeared, from the answer, that Parkhurst was indebted to them in the sum of one thousand eight hundred and fifty-five dollars and twenty-three cents, for goods sold, &c., and in the further sum of twelve hundred and seven dollars and seventy-two cents, for money lent and advanced. Parkhurst applied to one .of the de- fendants for further advances of money, and in order to secure them for such advances and credit as de- fendants might give, as well as the then existing indebtedness, it was agreed that Parkhurst should con- fess a judgment for ten thousand dollars to the defendant, in consid- eration of his then indebtedness of three thousand and sixty-two dollars IM)EX. 603 and ninety-five cents, and that the defendants should advance to him money and goods, from time to time, as he should desire the same, to the amount of the difference between the sum last named and the sum for which the judgment was to be con- fessed. To carry out this arrange- ment, the defendants gave to Park- hurst their note for six thousand nine hundred and forty -seven dol- lars and six cents, as a security to him for their making the advances, and for giving credit as agreed be- tween them, with the understand- ing, that as advances were made, corresponding endorsements were to be made on the note. That under this arrangement the judgment was confessed, and the defendant advan- ced Parkhurst in cash five thousand nine hundred and sixty-five dollars and seventy-two cents, and in goods two hundred and thirteen dollars and seventy-five cents, making, with the original indebtedness, the sum of nine thousand two hundred and forty-two dollars and forty- two cents. Held, that there was no reason to doubt, from anything that appeared on the face of the answer, but that the defendants took their judgment in good faith to secure a debt hon- estly due them and to protect them in such further advances as they might make to their debtor. It did not appear that there was any uffidavit in the case, and it was in- fisted that a judgment cannot be confessed for future advances, be- tause the plaintiff cannot swear ''that the debt is justly and honest- ly due and owing, and that the court should not allow the defend- ants to enforce their judgment, as it was in contravention of the stat- ute. But it was held that the only ground of jurisdiction in this court fe> interfere with the judgment would be that it was fraudulent. Tby could not declare the judgment void as against creditors, simply be- cause the judge or court had suffered It to be entered up in violation of the statute. It is the consience of the party which this court is to test, and not the le- gality of the judgment, or to cor- rect the error of a court of law. Clapp v. Ely, 178 / t law, a judgment an J execution con- stitutes no lien-upon a mere equita- ble interest. Halsted v. Davison. 291 A. court of equity may aid tho judg- ment creditor in reaching that in- terest, and secure to him a prefer- ence, to which by diligence he has entitled himself. \b A judgment and execution creditor cannot subject a property, in which an equitable interest has" been secu- red to his debtor by declaration of trust, to the payment of the judg- ment debt. v\ nere there has been no fraud in the transaction, no property of the debtor covered up by it, no creditor injured; where the debtor has never paid any part of the consideration money, or ever had any legal title to the proper- ty in question. ib If the debtor had ever paid any money upon the property, to the extent of such payment, the court might sub- ject the property to the execution, on the ground of its being the debt- or's own earnings. 16 Monej' for which a judgment is con- fessed may be honesly due, and vet the judgment not bona fide. If it was confessed not for the purpose of securing the debt, but as a fraud- ulent cover to the property, and to protect it from another creditor, it should be set aside as fraudulent. But to establish the fraud iu such a case the proof of it should be clear and satisfactory. It would require very strong and con- vincing circumstances unexplained to justify the inference that a judg- ment was fraudulent, when it was proved, beyond doubt, that the debt was justly and honestly due. Jones v. Aaugnright, M'.'S A judgment and execution creditor of the mortgagee may file a bill of discovery against an alleged fraud- ulent assignee of the mortagee, and if the assignment is fraudulent, the creditor is entitled to the mortgage fund. The statute avoids all diffi- culty which might have existed to a creditor's maintaining his bill for a discovery as to property not sub- ject to execution. Wilson v. Graw, 323 The interest of a mortgagee in per- sonal property, where the possess- ion remains "with the mortgagor, and before condition broken, cannot be taken in execution as the prop- erty of the mortgagee. A mortga- gor's interest in personal property is the subject of execution ana sale, a mortgagee's intervst is rot. b That a judgment and execution credit- or may maintain a bill in a court of equity to remove out of the waj 604: INDEX. fraudulent encumbrances placed by a debtor upon his property, in or- der that the property may be ap- propriated free from such fraudu- lent encumbrances to the satisfac- tion of the creditor's judgment, is well established. Dunham v. Cox. 437 When a creditor has by a judgment established his debt, by the statute he acquires a lien upon all the real estate of his debtor to satisfy his debt. If the debtor has fraudu- lently conveyed away or encumber- ed his real estate, so as to interpose an obstacle which embarrasses the debtor in appropriating it by legal process in satisfaction of his debt, then the creditor may file his bill to remove out of the way such fraudulent conveyance or encum- brance. It is not necessary for him to take out execution upon his judg- ment. It is, perhaps, most advisa- ble for him to do so ; it may avoid a contest with a subsequent execu- tion creditor. ib But if it is the personal property of the debtor which the creditor wish- es to reach and appropriate to the payment of his judgment, he must take out an execution upon his judgment before he can exhibit his bill ; for it is by the execution, and not by the judgment that he ac- quires a lien upon the personal property. ib JURISDICTION. This court will not assume a jurisdic- tion to try the lawful election of of- ficers and the validity of ordinances of corporate bodies upon the mere allegation that the complainants are holders of real estate in a city and that the value of their proper- ty is directly involved in proceed- ings which are going on and threat- ened, and that the proceedings are useless, and will tend to depreciate their property in value. Kearney v. Andrews. 70 This court is not the proper tribunal to try the legal title to land, but it is its peculiar province to determine questions of fraud, and to set aside fraudulent conveyances interposed to defeat the legal title. Obert v. Obert. 98 Complainant erected a valuable dwell- ing house, by mistake, on the land of defendant; defendant lived in the vicinity, saw complainant pro- gressing from day to day, with the improvements, and admitted that he did not suspsct the erections to be upon his lot until some time after their actual erection, when, by ac- tual measurement, to his surprise, he discovered the mistake. The court relieved the complainant, putting the defendant to as little inconvenience as possible. McKel- way v. Armour. 115 The Court of Chancery has no power to decree alimony, except as inci- dent to divorce, except in the single case provided for by the 10th sec- tion of the statute. Yule v. Yvle. 138 This court has the power to order a bond or other instrument to be de- livered up to be cancelled, and the court may properly exercise the power, although the grounds upon w'hich the jurisdiction of the court is invoked may constitute a valid defence at law against the writing. Cornish v. Bryan. 146 The Court of Chancery in this state has never adopted the principle, that because its jurisdiction has once rightfully attached, it will re- tain the cause as a matter of right, for the purposes of complete relit f. Little v. Cooper. 213 All bills in the court are in their na- ture, bills of discovery. Some are bills for discovery purely. When the subject matter is one which is properly cognizable at law only, and adequate relief can be given there, a Court of Chancery fre- quently takes jurisdiction, in order that a discovery may be had on the oath of a party, or to compel the production of papers and docu- ments. The end for which the ju- risdiction of the court was invoked having been attained, the party seeks his redress in the proper trib- unal at law. ib Where a bill prays for partition, and the defendants deny complainant's title, if the title in dispute is an equitable one, it is the duty of the court to settle it. If it is a legal ti- tle, the court may dismiss the bill, or may retain the cause, and afford the party an opportunity of settling his title at law. But the bare denial of the complain- ant's title is no obstacle to the court's proceeding. The defend- ant must answer the bill, and if he sets up a title adverse to the com- plainant, or disputes the complain- ant's title, he must discover his own title. If when the titles are spread before the court upon the pleadings, the court can see there is no valid legal objection to the complainant's ti- tle, there is no reason why the court should not proceed to order thf . partition. C05 But where there were serious ques- tions, both of law and fact, involved in the controversy between the par- ties as to the title, the court retain- ed the bill, and gave the parties an opportunity of settling tne title at law. Lucas v. Kiny, 277 This court has concurrent jurisdiction with the Orphans Court in the set- tlement of accounts of executors and administrators. It may assume this jurisdiction to the exclusion of the Orphans' Court, in any case where the ends of justice may seem to require it. If any progress has been made in the Orphans Court, in the settlement of an account, the Court of Chancery ought not to in- terfere with that tribunal, unless there is shown some good cause for its doing so. Clark \. Johnson, 287 Where a court of equity has, by the solicitation of a suitor invoking the aid of the court for his relief, inter- fered with the legal rights of an- other, and impaired his legal re- medy, it is the duty of this court to protect the party whose rights have been thus interfered with against any undue advantage attempted to be taken by the other party, at whose solicitation the power of this court was called into action. One acknowledged principle on which courts of equity give relief, is to prevent an advantage gained at law from being used against con- science. Doughty v. Doughty, JM7 Where a person renders services to anotherj relying solely upon his generosity, and expecting to be compensated by a legacy, he can- not, when disappointed in such ex- pectation, maintain an action at law for the value of his services. A court of equity will look at all the circumstances of the case, and will judge from them as to the quo ani- mo with which the services were rendered; and although a reason- able expectation was entertained, which was disappointed, will only allow compensation if it is equit- able that MII -li allowance should be made. Grantlin v. Heading, 370 An old lady, upwards of eight-five vears of age, lived with her son. She placed money in his hands, from time to time, for investment; he collected the interest, as it was due, and paid it over to her. Thin continued for eight years. An allowance for commissions for such service was refused. ib One stockholder in a company, be- cause he has an unsettled account with them, or any other matter of dispute, has no right to bring a company into this court to settle all their accounts as a company. Yard v. Ins. Co. 480 Admitting it to be true that the capi- tal stock of an insurance company was not bona Jide paid in, and that the company commenced the busi- ness of insurance in violation of the express provision of the charter, yet this court ought not to interfere with suits brought upon bonds in a court of law for the purpose of aid- ing the complainants to avoid their payment, where it appears that the bonds were given in payment for the stock of the comjKmy, that the complainant received his certificate of stock, and that upon these bonds, as a portion of the capital, the com- pany embarked in business. ib The question is a legal one, and the complainant may avail himself of it, as far as it is a defence in the suit at law. ib Upon the ground, that it is against public policy to permit the company to enforce a bond given in violation of law. the complainant may have the right to defend himself at law and in equity, and yet not be en- titled, as a complainant in this court, to be relieved against their payment. ib As a general mle r courts of equity will not regard time in the perfor- mance of a contract. But the par- ties may make time the essence of the contract, so that the court will not interfere to aid the party who is in default, unless lie can offer some good excuse, as mis- take or accident, for such default. Baldwin v. Fan. Fontf, 577 LEGACY. Where a legacy had l>oon made a lien upon a fiirm, which the U^stator de- vised to his son. who was the execu- tor: and the will dim-tod the logaoy to lie paid in throe nnniial instal- ments without inton-st. and direct- ed the executor to invest th same, and apply the interest to the wp- port and education of tho legatee, until she should arrive nt the ago of twenty-ono veurs, at which period the principal was to be jKiiu; atul subsequently tho executor luurt- 60C INDEX. gaged the farm, it was held that the legacy was a subsisting lien on the premises, notwithstanding a final settlement of the executor in the Orphans Court, in which he had prayed allowance for the legacy; the executor could not release the land by simply charging the legacy to himself. The will made the legacy a lien upon the land until it .was actually paid. Nor was the land released by a marriage settle- ment, in which the executor was made a trustee to secure to the lega- tee her separate estate free from the control and liability of her in- tended husband, when there was nothing in the settlement to show that it was the intention of the parties, by that deed, to release the land, and to take the personal se- curity of the executor for the legacy, and the legal construction of the deed did not necessarily pro- duce that effect. Terhune v. Col- ton, 21 The personal estate is the only fund for the payment of legacies, unless a contrary intention appears in the will. Sims v. Sims, 158 Where a legacy is made an express charge upon the land, if the per- sonal estate in the hands of the ex- ecutor is sufficient to pay the legacy, and the executor squanders the es- tate, the legatee cannot resort to the land. The land is debtor for the legacy only, and not for the misconduct of the executor. f 6 Where the executor has in his hands funds sufficient to pay all the legacies, and after paying some of them squanders or misapplies the residue of the fund, the legatees un- paid cannot resort to the others for contribution ; the legatees who have received payment are entitled to the benefit of their diligence. When there is an original deficiency of assets, the rule is different ; and the rule may have a different applica- tion when there is a participation in misapplying the assets between the executor and such legatees as are paid their legacies. 16 The intention of the testator is the essence of ademption of a legacy. When an advancement is relied up- on as an ademption, two facts must be established, the advancement, . and the intention of the testator that it should be in satisfaction, or a substitute for the bequest. ib :In some cases, equity raises the pre- sumption, and parol testimony is admissible, not to raise, but to con- i firm a presumption. t& Personal property not specifically bequeathed, must be applied before specific legacies. Whitehead v. Gibbons, 230 Where a person renders services to another, relying solely upon his generosity, and expecting to be compensated by a legacy, he can- not, when disappointed in such ex- pectation, maintain an action at law for the value of his services. Grandin v. Reading, 370 A testator made certain specific de- vises and bequests to several of his children. He then gave a life es- tate to his wife in his real and per- sonal property not specifically dis- posed of. He then declared that his real and personal estate, after the death of This wife, unless his wife chose to give up the estate before her decease, should be sold and di- vided among certain of his children ; and then declares, that if any of his children should die without lawful issue of the body begotten, then his, her, or their share, or legacy, should be equally divided among the sur- vivors, share and share alike. Held, that he used the term survivors with reference to the period when the estate should be divided, after the happening of the event men- tioned in his will, to wit, the death of his wife. Williamson v. Cham- berlain, 373 LIEN. Where a legacy had been made a lien upon a farm, which the testator de- vised to his son, who was the execu- tot ; and the will directed the legacy to be paid in three annual instal- ments without interest, and directed the executor to invest the same, and apply the interest to the support and education of the legatee, until she should arrive at the age of twenty- one years, at which period the prin- cipal was to be paid; and subsequent- ly the executor mortgaged the farm, it was held that the legacy was a subsisting lien on the premises, not- withstanding a final settlement of the executor in the Orphans Court, in which he had prayed allow- ance for the legacy; the executor could not release the land by sim- ply charging the legacy to himself. The will made the legacy a lien uoon the land until it was actually IXDEX. 607 paid. Nor was the land released by a marriage settlement, in which the executor was made a trustee to secure to the legatee her separate estate free from the control and li- ability of her intended husband, when there was nothing in the set- tlement to show that it was the in- tention of the parties, by that deed, to release the land, and to take the personal security of the ex- ecutor for the legacy, and the legal construction of the deed did not nec- essarily produce that defect. It was apparent that the money had never been received to pay the lega- cy ; that it existed in no other way than as a debt due to the legatee, secured upon the lands of the execu- tor; and while that debt and securi- ty had been assigned to the trustee, with power to change the security, it never was in fact changed. The executor and trustee, in such a case, cannot interpose that trust deed as a defence against a claim of the legacy as a lien upon the land. Terhune v. Colton, 21 An attorney has no right to give up the security of his clients, unless he receives actual payment, or is spec- ially authorized to do so; but where there Ls evidence enough of the ac- quiescence of the client in the agree- ment, it may be inferred that a so- licitor had special authority. ib Where a trustee pays a debt which is a prior lien on the trust fund, and which it is necessary to pay in order to protect the fund, for the benefit of the trust, the trustee is entitled to be reimbursed out of the trust fund, and this constitutes a first lien on the fund. Speer v. Whitfield et al., 107 As a general principle, when an exe- cution creditor has acquired an equitable lien, it cannot be destroyed or impaired bv the voluntary act of the debtor or his trustee. An equitable lien may bti lost by neg- ligence and unreasonable delay. Hnt- stetl v. Lkii-ison, 'MO M. K. and W. made an assignment for the benefit of creditors. On the ! personal property assigned, then- , was a mortgage, the bonn fitlrx of which was not disputed. The assign- ee having sold the property, and converted it into money, the mort- gagee, or person claiming under him. has an equitable lien on tlio proceeds of sale for jMivmcnt of tin- mortgage. Wilson v. Gray, 323 } LIMITATION. A. brings an action at law against B. B. files his bill in this court, and en- joins A. from prosecuting his ac- tion at law. Afterwards the bill is dismissed. This court, upon a bill filed by A., will prevent B., from taking advantage, by a plea of the statute of limitations, of the time which A. was enjoined, by the pro- cess of this court, from prosecuting his action at law, if B. obtained that advantage by the action of this court in the suit instituted by B. Dou'jkty v. Douyhty, 347 LUNACY. A person on trial under a commission of alleged lunacy has a right to be present at the trial to make his de- fence, by himself or counsel, and to examine witnesses. In case of confirmed and dangerous madness, notice may be dispensed with, but then only by the express order of the court. No specific time is fixed by the prac- tice of the court. It must be a rea- sonable notice. A notice given on Saturday, of the execution of a commission on Tues- day following is insufficient. But when the alleged lunatic appears upon such noticre bv counsel, and makes no objection, but consents to an adjournment for a future day, the insufficiency of notice is thei-e- by waived. The court, however, will relieve the petitioner, if through inadvertence or mistake he has been prejudiced, but not unless such mistake or pre- judice clearlv apjiears. The oath of his counsel, that he was prejudi- ced, without stating in what partic- ular. Ls not enough. In the matter of Daniel Vanauken, an allajnd lunatic, 18fi Exceptions stated to the general rule, tliat the opinion of a witness is not competent evidence to go to the jury. H> The charge of the commissioner to the jury in this case given, and rult>d to be correct. i' Whether tho alleged lunatic may tr verse the inquisition, is a matter ad dressed to the discretion of tho court, nnd if upon a review of tho evidence there exists a reasonable doubt ax t*> the correctness of th" finding, th* traverse should bo allowed. ib 608 INDEX. A mere failure of memory and decay and feebleness of the intellectual faculties are not evidences of that unsoundness of mind which will jus- tify a jury in finding a man a luna- tic. I'o warrant this, they must be such as to import a total depriva- tion or suspension of the ordinary powers of the mind. ib The question, what constitutes un- soundness of mind, considered, ib A petition for a traverse should not be sworn to by the lunatic. But the court should be satisfied that it is in truth the petition of the al- leged lunatic. ib Ordered, in this case, that the peti- tioner be produced before the Chan- cellor for examination, to ascer- tain whether he understood the character of the petition, and de- sired to traverse. ib After petition for divorce, on the ground of abuse and ill-treatment, a motion to allow a counsel fee and maintenance pendente lite refused against a party who had been de- clared a lunatic by the court. Mc- Ewen v. McEwen. 286 MINES AND MINERALS. A paint stone which is found in strata below the surface of the soil, and distinct from the ordinary earth and worked by the ordinary means of mining, will pass under the terms mines and minerals. Hartwell v. Camman. 128 A deed may convey a distinct inher- itance in mines, the fee to the land remaining in the grantor. When not severed from the general title to the lands, they will pass with the lands without being expressly men- tioned in the deed. Construction of a deed conveying mines and minerals, and the re- spective rights of grantor and grantee. ib By a conveyance of all "mines and minerals," the grant does not em- brace anything in the mineral king- dom, as distinguished from what belongs to the animal and vege- table, nor is such a grant confined to any one of the subordinate di- visions into which the mineral king- dom is subdivided by chemists, ib Where a term of art is used which has a popular signification among scientific men, parol testimony is admissible to ascertain the techni- cal and proper use of the term, but suoh testimony is not admissible to show that the parties to the writ- ing placed upph the term used any limned or definite meaning. ib MISTAKE. Complainant erected a valuable dwel- ling house, by mist ke, on the land of defendant; defendant lived in the vicinity, saw complainant pro- gressing from day to day, with the improvements, and admitted that he did not suspect the erections to be upon his lot until some time after their actual erection, when, by actual measurement, to his sur- prise, he discovered the mistake. The court relieved the complainant, putting the defendant to as little inconvenience as possible. McKel- ivay v. Armour. 115 Parol evidence is admissible for the pui-pose of showing a mistake in a deed. It forms one of the excep- sions to the general rule, which ex- cludes parol evidence offered to vary a written contract. 16 Where a bill is filed for the correc- tion of a mistake in the execution of a bond, and to restrain the de- fendants from taking advantage of the mistake in certain suits at law, the defendant may set up, as a de- fence against the complainant's right to relief, that the bond was procured by fraud. Hogencamp v. Ackerman. 267 MORTGAGE. If the mortgagee purchases the mort- gaged premises, subject to the mort- yaye, he cannot hold the land, and enforce the mortgage debt against the mortgagor. If the mortgagee purchases the mort- gaged premises upon an execution at law against the mortgagor, in favor of a third person, he pur- chases subject to the mortgage, and thereby extinguishes his debt: if he purchases upon an execution at law upon a judgment for his mortgage debt, then he extinguishes his debt against the mortgagor to the amount only he gives for the land. A mortgage was executed to Wil- liam Whitfield. This mortgage is absolute upon the face of it. But it was executed in trust ; and the trust is declared in an mstru- 609 ment of writing between Abraham J. Jerolonian and the mortgagee. By the plain construction of the instrument, it secured, first, to William VVhitfield, John Kennedy, and Abraham V. Speer, such sum or sums of money as were due and owing to them, or to either of them, from A 1 >i ;>hum J. Jeroloman at the time of its execution, as well as all such sums of money as they should advance on account of anv judg- ments, or other claim, or debt, then existing agahist 'Jeroloman, and the interest accruing thereon ; and sec- ond, it secures to John S. King, "William H. Brant, Peter Cooman, and Minard Cooman, the several amounts of money then due and owing to them, or either of them, and to Joseph Budd. the sum of one hundred dollars. Held, the debt due Speer at the time of the execu- tion of the writing has a preference over any advances subsequently made by any of the parties to the instrument. Speer v. Whitjield, 107 Where a mortgagee has released lands, primarily liable for his debt, to the prejudice of another mort- gagee, who has a lien upon a part only of the lands embraced in the first mortgage, the court may pre- vent the first mortgagee from en- forcing his mortgage upon the por- tion of the land common to both mortgages, until he deducts from his debt the value of the land re- leased. But the mortgagee will not be liable to such consequences, un- less he has knowingly and wrong- fully prejudiced the "rights of the other mortgagee. He must have knowledge of the other mortgagees' rights. It he releases without notice he is not to be a sufferer. If the other mortgagee wishes to protect, himself, he must give notice of his rights. The statute does not make the record notice for any such purpose. Hlair v. Ward. 119 A debtor has a perfect right to prefer a creditor, and he may make- that preference by a mortgage, as well us by any other mode of security. The mortgage will IK? a valid en- cumbrance on the premises. Junes v. Naughriijht , tt'hore the mortgaceo asripw the mort^a^' absolutely to ft third pT- wm. he is not n necessary |rty t-> a fom-losuiv suit. Hut if tho nwipu- ment is not absolute, then he is n wcefKary party. Miller v. Hauler- son. >- u M. K. and W. made an assignment for the benefit of creditors. On the personal property assigned, there was a mortgage, the bona Jides of which was not disputed. The assig- nee having sold the property, ai,d converted it into money, the niort- gagee, or person claiming under him, has an equitable lieu on the proceeds of sale for the payment of the mortgage. Wilson v. day, SL3 The interest of a mortgagee in per- sonal property, wheie the possession remains with the mortgagor, and before condition broken, cannot be taken in execution as the property of the mortgagee. A mortgagors interest in personal property is the subject of execution and sale, and a mortgagee's interest is not. 16 In New Jersey, the same doctrine pre- vails as to the respective rights of mortgagor and mortgagee of per- sonal property, and as to the char- acter of their respective interests, as governs mortgages of real pro- perty, tfe NE EXEAT. Upon a bill filed for alimony only, the court may make an order for a ne exeat before alimony is fixed. Yvle v. Yule. Io8 The affidavit of the wife alone is suffi- cient to support the order. id The affidavit need not state, in so many words, that the defendant is about leaving the state to avi id the the jurisdiction of the court ; it is sufficient, if the facts seem to show that the defendant's departui e will defeat the complainant s cla.'m, or that the defendant is leavii g the state for that purpo.so. t'6 The affidavit should show that the de- fendant intends going abroad. It must be inactive as to this point, or to his threats or declarations to that effect, or to facts evincing it, or circumstanct -s amounting to it. 16 In some cases it will lie sufficient if tho intention of the defendant'* going abroad is sworn to upon in- formation and lx>!ief; but tln> writ should not lx> issued in a doubtful c-aw. The debt, or, in n l:slind wa about moving from Neunrk to the city of New York, ami IIK:II liU insisting thiit tlie vitV should Kit with him. she left her hnxbanoii h<>u-o. find filed her bill, t-'hc is not entitled to select IKT own 610 INDEX. place of residence, and under such circumstances to an order for ali- mony, ib ORDINANCE. An ordinance of the city of Perth Aniboy, which ordained that the streets be graded and regulated, but did not specify how, nor refer to maps, profiles, or to any order or proceeding by or under the authori- ty of the council, by which it could be ascertained how the grading was to be done, was held to ue in viola- tion of the rights of the land owners in the city, and unlawful, as they could not comply with its require- ments, and the act, if they did not do so within two months, deprived them of the privilege of doing it themselves. But although the ordinance is illegal, the court will not grant an injunc- tion simply on the ground of the illegality of the ordinance. The injury must be specified, and so pointed out that the court can see it must be the inevitable conse- quence of the act threatened and complained of. Kearney v. An- drews, 70 PARTITION. On a bill for partition, if the title is denied, and there are serious doubts raised, the court will not order the commission : nor will it dismiss the bill, but will retain the bill, and af- ford the complainant an opportuni- ty to establish his title at law. Obert v. Obert, 93 PARTNERSHIP. "Where a copartnership is not deter- rnmable at will, and the court is re- sorted to for the purpose, a receiver will be appointed of course. The reason is, that whatever justifies the court in decreeing a resolution, es- tablishes the propriety of appoint- ing a receiver. Birdsall v. Colie, 63 But when a partnership is dissolved by mutual consent, or determined by the will of either party, a Court of Chancery will not, as of course, without any reason, except that such is the wish of one of the parties interested, assume the control of the business, and place it in the hands of a mere stranger. ib The court will appoint a receiver wherever it shall appear that it is necessary to do so in order to pro- tect the interests of the parties, ib A participation in the profits of busi- ness constitutes a partnership as to third persons; so where the evi- dence in the cause showed to a reasonable degree of certainty that one was to share in the profits of a business carried on in the name of another, it established the partner- ship. Although the business be carried on in the name of one alone, and neith- er suppose that they are partners, although they did not intend to be- come partners, and, as between themselves, were not partners, yet the law may hold them liable as partners as to third persons upon an agreement to share in the profits. Slieridan v. Aledara, 46 ( J Where money was loaned at 'six per cent., but in case the debtor's busi- ness succeeded, he was to pay twen- ty-five per cent., such contract, though usurious as to the borrower, as to third persons made the debtor and creditor partners. ib PART PERFORMANCE. One who enters into the possession of lands as tenant, and claims title and possession by virtue of a subsequent parol agreement, partly carried into execution, must establish the con- tract, by competent proofs, to be clear, definite, and unequivocal in all its terms; and the acts upon which he relies as part performance must be precise and certain, and re- ferable exclusively to the contract. Cole v. Potts, " 67 Payment of the purchase money, or a part of it, is not such a part per- formance as will take the case out of the statute. ib If he relies upon possession as part performance, he must show, by un- equivocal proof, that the tenancy was abandoned, and that his posses- sion as a tenant was changed into that of a vendee, under the specific contract he is seeking to enforce, ib A. employs B., as his agent, to pur- chase a house for him. B. makes the purchase, takes the deed in his own name, and pays his own money for it. A. connot compel B. to con- vey. It is within the statute of frauds, which requires the contract to be in writing. IKDEX. 611 In order to take the case out of the statute, on the ground of part per- formance, two things are requisite, the terms of the contract must be established by proofs to be clear, definite, and unequivocal, and the acts relied on as part performance must lie exclusively referable to the contract. The disposition of courts at the pres- ent day is to limit, rather than ex- tend exceptions to the statute, l^al- lace v. Brown, 308 A person may make an agreement, which will be legally binding upon him, to make a particular disposi- tion of his property by last will. A court of equity will decree the spe- cific performance of such an agree- ment upon the principles which go- vern the court in the exercise of tdis branch of its jurisdiction. Johnson v. Huhbel, 332 Although the agreement is by parol, if there is a part performance of such a character as, upon the prin- ciples recognised by the court, will take a parol agreement out of the statute of frauds, then there is noth- ing peculiar about an agreement of this kind to exclude it from the operation of those principles. ib If one party to a parol agreement lias wholly, or partially, performed it on his part, so that its non-fulfil- ment by the other party is a fraud, the court will compel a performance. ib PAROL AGREEMENT. A debt of record cannot be released by parol. How far a declaration, that a decree was satisfied, would bind a party against one who upon the faith of it has advanced money, is another question. Terhune v. Uol- ton, -'I One who enters into the possession of lands as tenant, and claims title and ix)ssossion by virtue of a subse- quent {wrol agreement, partly car- ried into execution, must establish the contract, by competent proofs, to l>e clear, definite, and unequivo- cal in all its terms, and the acts upon which ho relics as part perfor- mance must be precise and certain, and referable exclusively to the contract. Cole v. I'ottti, (57 Payment of tho. purchase money, or a jwrt of it, is oot such a jxirt por- fi irinaiiri- as will take the ca.se out of tho statute. iti If ho relies upon possession as pirt performance, he must show by un- equivocal proof, that the tenancy was abandoned, and that his jios- sessioii as a tenant was changed into that of a vendee, under the specific contract he is seeking to enforce. ib A person may make an agreement, which will be legally binding upou him, to make a particular disposi- tion of his property by last will A court of equity will decree the spe- cific performance of such an agree- ment upon the principles which go- vern the court in the exercise of this branch of its jurisdiction. Johnson v. Hubbel, 3&i Although the agreement to pay is by parol, if theib is a part perform- ance of such a character as, upon the principles recognised by the court, will take a parol agreement out of the statute of frauds, then there is nothing peculiar about an agreement of this kind to exclude it from the operation of those prin- ciples, ib If one party to a parol agreement has wholly, or partially, performed it on his part, so that its non-fulfil- ment by the other party is a fraud, the court will compel a perform- ance, ib Although a party has a right to the protection of the court, it that pro- tection cannot be given him with- out invading the rights of innocent parties, its aid will be refused. ib PAROL EVIDENCE. See PLEADING AND EVIDENCE. PLEADING AND EVIDENCE. A complainant cannot invoke tho aid of a court of equity on the ground that an award was" illegal, because not in pursuance of the submission. When it api>ears by tho bill itself, that the parties mutually agmvl to the course pursued by the arbitra- tors in tho matter complained of, it would 1)0 against equity and good conscience to permit the complain- ant thus to repudiate his own acts. Vcghtu v. HoagUind, 45 If tho defendant int'rposos a plm in bar to tho wholo bill, and tho com- plainant docs nt reply, but is dis- posed to quest ion in viiliilitv. instead of tho complainant 1 ! demurring to it, the defendant must sot it down for argument, and this answer* to tho demurrer at law. If tho plea 612 INDEX. should ba decided not to be good, the defendant must answer the bill'; if it is sustained, the complainant must reply to it. When he does reply and taken issue, the determination of that issue is final. Flayy v. Bonnel. 82 Where a bill claims the execution of a resulting trust, the facts from which it alleges the trust results must be proved. A complainant cannot make one case by his bill, and having failed to prove it, aban- don it, and recover upon a different one established by the evidence. Andrews v. Farnham. 91 A complainant may have partition and an account by the same bill. Obert v. Obert. 98 Parol evidence is not admissible to explain a written agreement, when there is no ambiguity apparent on the face of it. Speer v. iVhitJield. 107 Case stated where a cross-bill is nec- essary, ib Parol evidence is admissible for the purpose of showing a mistake in a deed. It forms one of the excep- tions to the general rule, which ex- cludes parol evidence offered to vary a written contract. McKelway v. Armour. 115 Sarah Ward executed two bonds to her son, J. L. Ward, and at the same time, a mortgage to secure the same on three tracts of land. Ward, on 1st December, 1847, assigned these bonds to complainants, and on the same day executed and deliv- ered to complainants, as collateral security, a mortgage on three tracts of land. This mortgage included the land in the Sarah Ward mort- gage, together with some other land. All the said lands had de- scended to J. L. W. , as the heir of his father. The land included in the Sarah Ward mortgage had been conveyed to her by J. L. W., and a mortgage given ta secure the pur- chase money. Complainants find on the record a deed, made by J. L. W. to Thomas Cook, embracing a portion of the land embraced by the collateral mortgage; but tins deed was not recorded until the 18th of January, 1848, whereas the mortgage to complainants was re- corded on 9th December, 1847. De- fendants insisted that complainants had notice of the conveyance to Cool? at the tima of the execution of their mortgage, and relied on the testimony of John L. Ward, one of the defendants, who was examined subject to exception. Held, that there being no question as to Cook's having lost his priority by any mere neglect on his part to record his deed with proper diligence, that Ward was interested in the event of the suit, and was therefore not a competent witness. Blair v. Ward. 119 Where a term of art is used which has a popular signification among scien- tiric men, parol testimony is ad- missible to ascertain the technical and proper use of the term, but such testimony is not admissible to show that the parties to the writ- ing placed upon the term used any limited or derinite meaning. Hart- well v. Cam/nan. 1^8 When parol testimony admissible to dispel a doubt upon the true sense and meaning of words. ib Parol testimony sometimes admitted ex necessitate, and when the ambi- guity in an instrument is created by extrinsic evidence, it may be removed by the same. ib In some cases equity raises a pre- sumption, and parol testimony is then admissible, not to raise, but to confirm a presumption. Sims v. Sims. 158 Exceptions stated to the general rule, that the opinion of a witness is not competent evidence to go to the jury. In tlie matter of Daniel Vanauken,. 186 E E went to the office of S., a scriv- ener, who drew her will, and after it was executed, S., at the request of E. E. , put it in his private secre- tary witu his private papers for safekeeping. To the knowledge of S. , the will was never sent for, or taken away by E. E., and during f requeat conversations between E. E. and S., the will was spoken of. E. E. dies, and S., upon searching for the win, fiads it gone from the place where he deposited it, and upon search cannot find it. He states, under oath, that he believes the will to have been clandestinely taken from his secretary : held, that the presumption is that this was the last will of E E, and unless that presumption is overcome in some legal way, will be established. The evidence in this case stated, and the reasons given for the conclu- sion, that the evidence does not overcome the presumption in favor of the alleged paper being the last will of E. E. Hildreth v. Schillin- ger. 196 Although the general rule is, that the answer of a defendant, so far as it is responsive to the bill, is evidence for the party, it is no evidence when it IXDEX. 613 asserts a right affirmatively in op- position to the complainant's de- mand. So where the defendant was called upon to disclose what consideration he paid for the assignment of a mortgage, and answered, that he paid no consideration at the time, but merely promised that he would j make certain payments and per- form certain duties at a future time, i his allegation, that he has perform- ] ed his promise, cannot avail him; . he is bound to establish the fact by I proof. Fisler v. Porch, 24o \ The fact as to whether the assignment was intended as an absolute one, or as a mere authority to enable the defendant to collect, being doubtful | from the evidence, the court direct- ed an issue. 16 Two complainants with distinct causes of action, alleging distinct injuries, cannot unite in the same bill. To authorize them to join as complain- ants, their cause of action must be the same, the injury the same, and they must be entitled to the same remedy. Plum v. Morris Canal and Banking Co. 250 Charges of adultery are improper in a bill which prays for a divorce a inensa et thbro only. Snocer v. Snover, 2G1 So much of the evidence as related to acts of adultery suppressed. t6 If a defendant submits to answer, the general rule is, he is bond to answer every immaterial, as well as mater- ial statement of the bill. Hogen- \ camp v. Ackerman, 'n All bills are, in their nature, bills of discovery. Some are bills for dis- covery purely. When the subject matter is one which in properly cognizable at law only, and adequ- ate relief can be given there. 11 Court of Chancery frequently takes ; jurisdiction, in ordftr tliat a dis- i covery may be had on the oath of ' a party, or to comi>el the production j of palters and documents. The end j for which the jurisdiction of the | court was Invoked having been at- i taincd, the party seeks his redress in the pro]>cr tribunal tit law. A mere bill of discovery cannot pro- perly pray for relief. When*. njx>n the "fact*" stated, the relief prayed for by the bill Is pn>|icr: the bill is Homething more than a mere bill <>f discovery. lAtlle v. ( 'aid any part of the purchase mo- ney, tliat the answer amounted pretty much to a confession of the case made by the bill. Heyde v. EMers, 283 Depositions taken on a preliminary matter, after bill filed, and before the time had expired for any further pleading, were permitted to be read on the final hearing, so far as they were relevant to the mat- ters in issue, and which were in- volved in tiie preliminary matter. Holcombe v. Holcombe, 2b4 It is not enough for the bill to show that the debtor has made a fraudu- lent disposition of any particular portion of his property to entitle the creditor to the aid of a court of equity ; he must show that such dis- position embarrasses him in obtain- ing satisfaction of his debt. Facts must be stated from which, at least, the inference may bo drawn, that the aid of a court of equity is re- quired to give the judgment its legal and full effect. Bill defective on demurrer. Dunham v. Vox, 437 The objection to a witness on the ground of incompetency, on ac- count of his being a partner, not made until after the direct examin- ation, is not well taken in |x>int of time. A i>arty cannot siKvulato by waiting to disc-over whether the testimony of a witness is favorable or unfavorable, and then interposes his objection at pleasure. Sheridan v. Mcdam, WJ evidence is admissible for the purpose of establishing an allegation of fraud in the inception of a n- lea.sc>. Morol testimony f<>r HOIUO |>ur- relating to the conaiderutiou F 611 INDEX. expressed in a deed. Adams v. Hudson (Jo. Bank, 535 POWER OF APPOINTMENT. Hope Cowperthwait, by her will, di- rected her trustee to pay a certain fund, as follows: " unto such of the brothers and sisters of my daughter' Haunah and their children, and in such proportions as my said daugh- ter H. snail, by her last will and testament, or writing in nature thereof, signed by her naud, and at- tested by two credible witnesses, direct and appoint. " This language gives to the donee a discretion as to a selection between the objects named. Lippincott v. Ridgway, 104 After the language quoted above, fol- lows " my will being that my said daughter shall in such case have power to dispose of the same among her brothers and sisters, and their children, in such proportion as she may think fit, but to no other per son or persons whatsoever." ib This limited the power of appoint- ment, and entitled each of the broth- ers and sisters of Hannah Lippin- cott to a portion of the fund. PRACTICE. If the defendant interposes a plea in bar to the whole bill, and the com- plainant does not reply, but is dis- posed to question its validity, in- stead of the complainant's demur- ring to it, the defendant must set it down for argument, and this an- swers to the demurrer at law. If the plea should be decided not to be good, the defendant must answer the bill ; if it is sustained, the com- plainant must reply to it. Flayg v. Bonnel, 82 When he does reply and takes issue, the determination of that issue is final. il Where an injunction has been dis- solved for want of equity in the bill, the court will not grant an ex parte injunction upon an amended bill, or upon a new bill supplying that equity. Horner v. Leeds, 80 Although an ejectment suit does not conclude the parties from further investigation, this court will look at the questions which were really in- volved in that suit; and if the legal question as to the title, which is raised by the bill, was decided by the court of law, and the party had by the judgment and process of the court been put in possession, this court cannot require better proof of legal title. On a bill for partition, if the title is denied, and there are serious doubts raised, the court will not order the commission: nor will it dismiss the bill, but will retain the bill, and af- ford the complainant an opportuni- ty to establish his titie at law. U ert v. Ouert, The husband was about moving from Newark to the city of New York, and upon his insisting that the wife should go with him, she left her husband's house, and filed her bill. She is not entitled to select her own place of residence, and under such circumstances to an order for ali- mony, i > A person on trial under a commission of alleged lunacy has a right to be E resent at the trial to make his de- vice, by himself or counsel, and to examine witnesses. In case of con firmed and dangerous madness, notice may be dispensed with, but then only by the express order of the court. In the matter of Daniel Vanauken, 186 No specific time is fixed by the practice INDEX. 615 of the court. It must be a reasona- ble notice. t'6 A notice given on Saturday, of the execution of a commission on Tues- day following is insufficient. 16 But when the alleged lunatic appears upon such notice by counsel, and makes no objection, but consents to an adjournment for a future day, the insufficiency of notice is thereby waived. io The court, however, will relieve the petitioner, if through inadvertence or mistake he has been prejudiced, but not unless such mistake or pre- judice clearly appears. The oath of his counsel, that he was prejudiced, without stating in what particular, is not enough. io Whether the alleged lunatic may tra- verse the inquisition, is a matter ad- dressed to the discretion of the court, and if upon a review of the evidence there exists a reasonable doubt as to the correctness of the finding, the traverse should be el- lowed. t>i A petition for a traverse should not be sworn to by the lunatic. But the court shoud be satisfied that it is in truth the petition of the alleg- ed lunatic. ib Ordered, in this case, that the peti- tioner be produced before the Chan- cellor for examination, to ascertain whether he understood the charac- ter of the petition, and desired to traverse. ib There is no reason for the court sul>- mitting the question of fact, wheth- er a will lias been cancelled, or sur- reptitiously destroyed, to a jury, where the evidence is such as to cre- ate no embarrassing doubt in the mind of the court. Hildreth v, Schillinyer. I'M The fact as to whether the assignment was intended as an absolute one, or as a more authority to enable tho dofendantt to collect, being doubt- ful from the, evidence, the court di- rected an issue. Fialer v. J^nrch, ii-fci Whore a bill prays for partition, and the defendants deny complainant's titlr. if tin- title in dispute in an equitable one, it is tho duty of tho court to settle it. If it is' a legal title, the court may dismiss tho bill, or may retain tho cause, and afford the jKirt v mi opportunity of settling his title at law. But the bare denial of tho complain- ant 'stitlo is no ol>staclo to tbfl court ' pnxf Ming. The defendant must an- Mwor the bill, aiul if ho sots upu title adverse to the complainant, or di- putes the complainant's title, he must discover his own title. If when the titles are spread before the court upon the pleadings, the court can see there is no valid legal Objection to the complainant's title, there is no reason why the court should not proceed to order the partition. But where there were serious ques- tions, both of law and fact, involv ed in the controversy between the parties as to the title, the court re- tained the bill, and gave the itarties an opportunity of settling the title at law. Lucas v. Kiiig, 277 Depositions taken on a preliminary matter, after bill filed, and before the time had expired for any f ur t her pleading, were i>ermitted to be read Oft the final hearing, so far as they were relevant to the matters in Is- sue and which were involved in the preliminary matter. JJolcuiiibe v. Holcombe, 2S4 After petition for divorce, on the ground of abuse and ill treatment, a motion to allow a counsel fee ana maintenance pendent e lite refused against a party who had been de- clared a lunatic by the court. Tho order implies a default and neg- lect of a moral obligation on the part of the defendant, which can- not be imputed to a lunatic. Mo Kicen v. McEwen, I&O Where the mortgagee assigns tho mortgage absolutely to a t Inn 1 per son, ho is not a necessary i>arty to a foreclosure suit. But if" the assign- ment is not absolute, then lie is a necessary party. AlilU-r v. liender- IWO A judgment and execution creditor of the mortgagee may tile a bill of discovery against an alleged fraud- ulent assignee of tho mortgagee, and if the assignment is fraudulent, the creditor is entitled to the mort- gage fund. Tho statute avoid* nil difficulty which might luivo . \ ,-. 1 to a creditor's maintaining his bill for a discovery as to proit-rty not subject to execution. IVifaun v. G'lfij/, A Mibptrna must l>o tnkon out with the injunction, and mndo returna- ble within tho time prescribed by the nilo for a return of wrvico of the injunction. Tho rule roquinw the injunction to ha wrvtsl within ton day* uftor the i- Buing thereof, and a return of nor- vitv mode ti thoiNHirt within twoii- tv davH Hftor Mich wrvieo. l*f v. (''niifill. Wtl A. bi iii*an action at lawagninut B. 1J. C16 INDEX. files 1iis bill in this court, and en- joins A. from prosecuting his ac- tion at law. Afterwards the bill is dismissed. This court, upon a bill filed by A., will prevent B. frozn taking advantage, by a plea of the statute of limitations, of the time which A. was enjoined, by the pro- cess of tliis court, from prosecuting his action at law, if b. obtained that advantage by the action of this court in tne suit instituted by B. DoughtiJ v. Dowjhhj. 347 An old lady, upwards of eighty-five yeai-s of age, lived with her son. fcttie placed money in his hands from time to time, for investment: he collected the interest as it was due, and paid it over to her. This con- tinued for eight years. An allow- ance for commissions for such ser- vice was refused. Grandin v. Reading. 370 On a bill tiled on behalf of an infant complainant to compel executors and trustees under a will to account for the estate of the testator which has come to their hands, and for the execution of their trust, com- plainants are entitled to an account as a matter of course. Holcombe v. Coryell. 392 The general rule is, that in order to obtain the dissolution of an injunc- tion, all the defendants must an- swer the equi ty of the bill. But the qualification of the rule is, that it is enough if those defendants answer upon whom the gravamen of the charge rests. Adams v. Hudson County Bank. 535 The filing of a cross-bill does not, as a matter of course, stay the pro- ceedings in the original suit. If the party filing the cross-bill wishes to stay the cause upon the original pleadings, he should give notice, and apply to the court for an order to that effect. Williams v. Carle 543 Where the cross-bill was not filed un- til a year after the filing of the original bill, and after the proofs had been taken, and the original cause .noticed for hearing, and a proper decree could be made with- out the necessity of a cross-bill, the Chancellor would not delay the hearing on the original bill on the ground that the plaintiffs had not answered the cross-bill. By WIL- LIAMSON, Chancellor. Hi Where a cross-bill was filed by two of the defendants, who had put in their answers disclaiming any in- terest in the original suit, and the cross-bill alleged that the answers were filed through mistake, &c., the pleadings were incongruous and irregular: the proper course is to apply for leave to withdraw their answers. 16 RAILROAD. See CORPORATION. The Morris and Essex Railroad Com- pany have no right to occupy or use Broad and Centre streets, in the city of Newark, in the manner the same are now appropriated by them, without the consent of the mayor and common council of the city of Newark. Morris and Es- sex Railroad Company v. Newark. 352 The legislature has the power to au- thorize the use of a public highway for the purpose of a railroad, in such a manner as not entirely to de- stroy its use in the ordinary mode. The use of public highways belongs to the public, but they have not been dedicated to any particular mode of travel or use. It is perfect- ly consistent with the purposes for which they were originally desig- nated and intended that the public authorities, who have the control of them as public highways, should adapt them in their use to the con- venience and improvement of the age. i/i The legislature must be the judges as to the benefit to the public, and to their authority individuals and the public must submit. i /> The complainants were authorized to construct a railroad from Morris- town to Newark. That was the ob- ject of their incorporation ; and it is manifest, from the whole act. that it was the intention of the legisla- ture to confer all the powers neces- sary to enable the corporators to carry out the object for which they were incorporated. But it does not follow that because the legislature intended to confer upon the compa- ny all the powers necessary for them to carry out the object for which they were incorporated, that they are therefore necessaril yclothed with all powers to meet that necessity ; and that when not expressed, such pow- ers are to be derived by implica- tion. In a limited sense, the prop- osition is true, when the power sought to be implied does not take away or impair the legal rights of . individuals or of any other corpora- tion. '' The public rights in the highways INDEX. C1T of the state can be impaired or in- terfered with by nothing short of the authority conferred by the sov- ereign power. That authority must be expressly given ; or if conferred by implication, it must be a neces- sary implication. ib Held, that the right Ls not given by this charter in express terms, and it cannot be implied, frorn any of its provisions, to appropriate, for the purpose of their railroad, more than one half mile of the principal pub- lic highway of Newark, without the consent of the appropriate public authorities of the City. That the acts of defendants, upon which complainants rely as estab- lishing consent, are not sufficient. There was no license given to the company, either by parol or in writing; and no fraud can be in- ferred from the fact, that the de- fendants did not interfere, but stood by in silence, while the com- plainants expended their money in the construction of their road upon the public highways. There is no legislative sanction, either in the supplement of 3d March, 1836, or in the further supplement of 22d February, 1X3$, to the com- pany's occupying any public high- way, without first obtaining the consent of the proper legal authori- ties. They will not warrant such a construction. ib RECEIVER Where a copartnership is not deter- tninable at will, and the court is re- sorted to for the purpose, a receiver will be appointed of course. The reason is, that whatever justifies the court in decreeing a dissolution, establishes the propriety of appoint- ing a receiver. Birdsall v. Colie, 153 But when a partnership is dissolved by mutual consent, or determined by the will of either party, a Court of Chancery will not, as of course, without any reason, except that si id i is the wish of ono of the parties interests!, assume the control of the businesH. and place it in tho hands of a rnero stranger. ' Tho court will appoint a receiver wherever it shall appear that it in nectimarv to do HO in order to pro- tect the Interest of the jwrtie*. ib RECORD, REGISTRY. Where a mortgagee has released lands, primarily liable for his debt, to the prejudice of another mortga- gee, who has a lien upon a part only of the lands embraced in the first mortgage, the court may prevent the first mortgagee from enforcing his mortgage upon the portion of tho land common to both mortgages until he deducts from his debt the value of the land released. But tho mortgagee will not be liable to such consequences, unless he has know- ingly and wrongfully prejudiced the rights of the other mortgagee. He must have knowledge of tho other mortgagees' rights. If he re- leases without notice, he is not to be a sufferer. If the other mortga- gee wishes to protect himself, he must give notice of his rights. The statute does not make the record notice for any such purpose. Blair v. Ward, 119 To destroy the title acquired by prior registry, it is necessary that the party should have notice of a prior subsisting outstanding title. It is not enough that ho has notice that a prior deed has been executed, if the notice conveys, also, the in- formation that the title is not in existence. Holmes v. Stout, 41U The ground ujx>n which the title ac- quired by a prior registry of a deed is lost, in case of notice to the second grantee of tho existence of the prior conveyence, is that it is a fraud in the second grantee to take a deed knowing or having reason to siisjiect the existence of the prior title. ili Unless the information given con- cerning the existence of tho pre- vious conveyance was of KUCII a ehurwter as to taint hLs conduct with fraud, as against those claim- ing under the prior till.-, the notice cannot affect tho validity of hU titlo. ib Possession is sometimes notice of claim of titlo sufficient tn put a purHiaw>r on inquiry ; but it must I mi nctunl possession manifesto. 1 by not* rintM acts of ownership, Mic-li as would naturally bo ols-rve*l by, and known to tho public. . i'6 Cutting woo*! occasionally, under cir- cumstances which mi.- lit be regard- ed as MO many treiia.snpt quit** n probably as acts of own<>r>hfp, U not evidence of Mich iwxwe-wion. 16 Tho grantee of ft <nn fltlr piirelutMr without notice U not to be charged 613 INDEX. with the encumbrance or fraud, al- though directly known to him be- fore he acquired his title; otherwise the loss must be visited upon the bona fide, purchaser, as he would thereby be obliged to keep the prop- erty, or to sell it at such a price as would enable his purchaser to dis- charge the encumbrance or purge the fraud. ib RELEASE. A debt of record cannot be released by parol. How far a declaration, that a decree was satisfied, would bind a party against one who upon the faith of it has advanced money, is another question. Terhune v, Cotton, 21 Payment by the debtor operates for the benefit, and as a release in favor of creditors having liens on the same fund bound by the judgment. Stout v. Vankirk, 79 Parol evidence is admissible for the purpose of establishing an allega- tion of fraud in the inception ot a release. Where the fact was established that the parties to a general release, at the time of the'execution of it, un- derstood perfectly that the object, and the sole object, was to make the relessee competent as a witness in a pending suit, it cannot be used to bar a recovery on a bond and mortgage. That the relessee intended at the time to make use of the opportunity to obtain a general release, and turn the transaction from an innocent to a fraudulent purpose, makes him a fraud doer. Martin v. Righter, 510 SALE. Where the testator directs a sale of land to be made, and the proceeds to be divided among his heirs at law. they may elect to take the lands, and a court of equity will se- cure to them the benefit of that election. So where all interested had entered into an agreement to divide the real estate itself in such proportions as they deemed just in reference to their respective inter- est in the proceeds, and it appeared that the parties had lived ten years under the agreement; that the ownership of the property had be- come so changed that the agree- ment could not be disturbed with- out grossly violating the rights of some of the parties to it, and fraudu- lently depriving them of their prop- erty ; that the executors had acqui- esced in it, and induced such a state of things as made it a fraud in them to disturb it, the court said that the plea that such an agreement was il- legal because one of the parties was a feme gooert, came with an ill grace as a defence on the part of the executors, who had subsequent- ly sold a portion of the property re- leased under the agreement. Scud- der v. Stout, 377 At the time of the execution of the agreement, the husband of one of the parties had been absent six years and upwards. The report was that he was dead: it was so considered by the family. When the executors sold the property, he had been absent sixteen years, and the party was married again. At that time, no court of law or equity would have disturbed the agree- ment on the ground alleged. ib But although the executors acted in bad faith, and in violation of the rights of those interested in the will of the testator, it does not follow, as a consequence of their fraud, that a sale made by them is void, they being authorized by the will to sell the land, and there being no proof that the grantees were cognizant of the agreement. ib Where the purchase money of such sale had been wrongfully paid over to one not entitled to it, the court held complainants entitled to an account, and ordered the money brought into court. to SPECIFIC PERFORMANCE. A person may make an agreement, which will be legally binding upon him, to make a particular disposi- tion of his property by last will: and a court of equity will decree the specific performance of such an agreement upon the principles which govern the court in the exercise of this branch of its jurisdiction. Johnson v. Hubbell, 333 The complainant applied to the de- fendant to purchase his farm. After some negotiation, it was agreed between them, that if the complainant would purchase the Butz farm, the defendant would exchange his farm for the INDEX. 619 farm "Uid a thousand dollars. At the request of complainant, defend- ant went to consult his wife and family; and. on returning, said they would all assent to the arrange- ment. Complainant then purchased the Butz farm ; and being obliged to leave, authorized his brother, as agent for him, to enter into a writ- ten agreement with defendant for the exchange of farms. The agree- ment was executed, by which it was agreed that complainant should convey, free and clear of all encum- brances, the Butz farm to the de- fendant, and that, on the same day, defendant should convey his farm to complainant ; and complain- ant agreed to pay the difference of one thousand dollars : the wife ex- pressed herself satisfied with the agreement. At the time appointed, complainant tendered his deed, signed by himself and wife, with full covenants, and the defendant tendered a deed not signed by his wife. Held, that as the refusal of the wife to unite with her husband in the con- veyance was owing entirely to the contrivance and fraud of the defend- ant, who in this way was endeavor- ing to deprive the complainant of the benefit of a specific performance of the contract, that the court should order the agreement perform- ed, and the conveyed to be so made between the parties, that the com- plainant may hold in the land which he conveys an indemnity against any future claim to be set up by de- fendant's wife. Young v, Paul, 401 It was argued that the decree would in effect force the wife into execu- ting the deed, which should be her free and voluntary act, The Chan- cellor said, " Upon a careful exam- ination of all the authorities, if the alternative were presented to me of making a decree for specific performance by procuring the wife to join in the deed, or to dismiss the bill, I should accept the latter." ib The power of the court to direct in- demnity in such a case cannot be denied; it is the i proper and natur- al mode of administering equity be- tween the parties. ib This court cannot enforce the specific performance in a deed, the nonper- mance of wliich works a forfeiture of the estate. The grantor has fixed his own remedy, and can forfeit the estate at his phsusure. Wood/mff v. Water fower Co, 180 SURETY. If a person becomes surety for one as administrator, who at the time is a debtor to the estate and is insolv- ent, and is never able to discharge such indebtedness, such surety is not bound for such a delinquency of his principal. He is only bound for the faithful performance of his duties as administrator. If, under such circumstances, the ad- ministrator should, in the settle- ment of his accounts with the court, charge himself with the debt, and the accounts should be passed in such a shape as to bind the surety for the debt, the surety would be relieved, upon application to the proper tribunal, from such respon- sibility. Barker v. Irick, 209 But if at the time the surety assumes his responsibility, the administrator owes the estate, and is solvent and able to pay, the amount of the debt will be considered, in law and equi- ty, as so much money in his hands as administrator at that time, and consequently the surety will be re- sponsible for it. ib TITLE. Although an ejectment suit, does not conclude the parties from further investigation, this court will look at the questions which were really in- volved in that suit ; and if the legal question as to the title, which is raised by the bill, was decided by the court of law, and the party had by the judgment and process of the court been put in possession, this court cannot require better proof of legal title. Obert v. Ubert, Although a man can have no easement on his own land, yet, by the mere severance of his title, he may create such easement, and the test as to whether such easement is created, is whether it is essential to the benefi- cia. enjoyment of the kind convey- ed. It is created ex necessitate, though not by the words of the grant. Brakely v. IShai-p, 'J0( To destroy the title acquired by prior registry, it is necessary that the par- ty Kuould liave notice of a prior sub- sisting outstanding title. It is not enough that he has notice tliat a pri- or deed has been executed, if the no- tice conveys, also, the information 620 INDEX. that the title is not in existence. Holmes v. Stout, 419 The ground upon which the title ac- quired by a prior registry of a deed is lost, in case of notice to the sec- ond grantee of the existence of the prior conveyance, is that it is a fraud in the second grantee to take a deed, knowing or having reason to suspect the existence of a prior title. ib Unless the information given con- cerning the existence of the pre- vious conveyance was of such a character as to taint his conduct with fraud, as against those claiming under the prior title, the notice can- not affect the validity of his title. ib Possession is sometimes notice of claim of title sufficient to put a purchaser on inquiry ; but it must be an actual possession manifested by notorious acts of ownership, such as would naturally be observed by, and known to the public. ib Cutting wood occasionally, under cir- cumstances which might be regard- ed as so many trespasses quite as probably as acts of ownership, is not evidence of such possession, ib The grantee of a bona fide purchaser without notice is not to be charged with the encumbrance or fraud, al- though directly known to him be- fore he acquired his title; otherwise the loss must be visited upon the bona fide purchaser, as he would thereby be obliged to keep the property, or to sell it at such a price as would enable his purchaser to discharge the encumbrance or purge . the fraud. ib TRUST AND TRUSTEE. This court has no right to institute an inquiry into the doctrines or mode of worship of any religious society, except such inquiry shall become absolutely necessary for the protec- tion of trust property. Lutheran Church v. Maschop, 57 Where a bill claims the execution of a resulting trust, the facts from which it alleges the trust results must be proved. A complainant cannot make one case by his bill, and having failed to prove it, aban- don it, and recover upon a different one established by the evidence. Andrews v. Farntiam, 91 A testator at his death left a widow, since deceased, and three minor children. His widow took a Kfe es- tate only in the land and premises under his will. Some years after the death of testator, his widow conveyed the premises in question to a trustee, in trust for the benefit of her minor children, with power to dispose of and convey the same to the best advantage. The trustee sold the premises, and the posses- sion of the premises had since fol- lowed his conveyance. The court refused to enjoin the minor chil- dren from prosecuting an action of ejectment, or to order them to exe- cute conveyances or releases, as there was no evidence that they, after arriving at age, had assented to the sale, or received any consid- eration for it. The trustee who had given a warranty deed for the land, and remained lia- ble upon it, was excluded as a wit- ness on account of interest. Farley v. Woodburn, 96 Where a trustee pays a debt which is a prior lien on the trust fund, and which it is necessary to pay in or- der to protect the fund, for the ben- efit of the trust, the trustee is enti- tled to be reimbursed out of the trust fund, and this constitutes a first lien on the fund. A mortgage was executed to William Whitneld. This mortgage is abso- lute upon the face of it. But it was executed in trust, and the trust is declared in an instrument of writ- ing between Abraham J. Jeroloman and the mortgagee. By the plain construction of the instrument, it secured, first, to William Whitfield, John Kennedy, and Abraham V. Speer, such sum or sums of money as were due or owing to them, or to either of them, from Abraham J. Jeroloman at the time of its execu- tion, as well as all such sums of money as they should advance on account of any judgments, or other claim or debt, then existing against Jeroloman, and the interest accru- ing thereon ; and second, it secures to John S. King, William H. Brant, Peter Cooman, and Minard Coo- man, the several amounts of money then due and owing to them, or either of them, and to Joseph Budd the sum of one hundred dollars. Held, the debt due Speer at tho time of the execution of the writ- ing has a preference over any ad- vances subsequently made by any of the parties to the instrument. Speer v. Whitfield, 107 The rule of the common law is un- doubtedly well established, that a trustee, executor, or administrator INDEX. C21 shall have no allowance for his care or trouble. The Court of Chancery, independent of any statute law or local custom, has, with few excep- tions, adopted this rule. Waibass v. Annul ro it '', disclaimed title, and renounced all right to tle fund, ami declined to accept it, the fund belongs to the husband, as adminis- trator. William* v. L'ai-U, 54H VESTED IUGHTR The legislature may (jive additional powers, from tin if to timo, to cor- porations; thoacta of the corjtora- tion, in pursuance of tuch authority, 622 INDEX. are binding, unless they conflict with vested rights or impair* the obliga- tion of contracts. Gifford v. Ntno Jersey Railroad Co., 171 Py the supp!em3nt to the charter of the Newark and Bloomfield Rail- road Company, passed March &5th, j I8.V.J, 3, it is enacted, that nothing ' -in the supplement contained shall be construed t:> impair, in any man- ner,' any reversionary interest or vested right which the stats, or any incorporated company or companies, or any individual, may possess un- der the charter of the Bridge Com- pany. This provision is also, in effect, contained in the constitu- tion, ib A stockholder of the Bridge Company has a vested right in the value of kis stock and interest in the fran- chise of exclusive tolls, and, as an- cillary to this, an interest in the ex- clusive right of building bridges over ths rivers Passaic and Hack- ensack. ib Any act of the corporation impairing these rights of a stockholder with- out his consent, either express or implied, would not be binding on bim under the above provisions, ex- cept in a proceeding authorizing the taking of private property for pub- lic use3 upon making compensation. But long acquiescence will be con- sidered as equivalent to a consent, and whatever ground of equity an individual stockholder may have had, a counter equity may arise from lapse of tim-3. ib The act of tag legislature, passed the 17th March. lT>i, declaring Little Timber creok to be a public high- way, which authorizes and requires the township committee to remove the dam, is in violatiqp of the con- stitution of the United States, which declares that no state shall pass any bill of attain '^^ ex post facto law, or law irnpa'tjjgg'' the obligation of contracts. l**us a virtual repeal of the act of 17(50, under the pro- visions of which rights had became .vested, and valuable property had been acquired. It is in violation of good faith. It impairs the obliga- tion of a contract. Glover v. Pow- ell, 211 The act, of 1S54 was also repugnant to the constitution of the state of New Jersey, as taking private property for public use without just compen- sation. i'i A partial destruction or diminution of value is the taking of private property. ' ib WATERCOURSES. A. is the owner of two farms, through which runs a natural stream. He sells to B. the farm upon which the watercourse has its origin; A. is en- titled to have the water flow upon the farm which he reserves the same as he enjoyed it when he severed his title, because the water- course did not begin by the consent or the act of the parties, but ex jure natural. But water conveyed by pipes is a thing which is created and controlled by the parties, and is, in its very nature, different from a natural watercourse. C. S. died, leaving a large farm, through which was an artificial watercourse. Proceedings were had in the Orphans Court for partition among the heirs, and a portion of the farm through which the arti- ficial watercourse run was set off to part of the heirs, and another portion was sold under an order of the court. Held, that the purchas- ers were entitled to the enjoyment of the watercourse as it existed at the time of sale. The act of the commissioners was no such sever- ance of the unity of title as would govern the rights of the grantor to the enjoyment of the watercourse. Brakely v. Sharp, 20o WILL. In this case, the words were, " I give, devise, and bequeath to my beloved wife, Elizabeth M. Clark, six hun- dred dollars, at the end of six months after my decease, and my gold watch, which she carries, and the silver teaspoons, the two sets of window blinds in the back room, and the hall lamp, which she brought me at or after our marriage; and her acceptance of the above gift shall for ever exclude her from any further demands on my estate." It was insisted that the acceptance of the gift excluded the widow from any further demand, only against the personal estate; that the legacy was to b3 paid her by the executor, and that against that estate out of which the legacy was to be paid she was excluded from any further de- mands. It was held, that if the other parts of the will gave no further in- dication of the testator's intention, this construction might prevail. Bu fc as the testator had put both real and INDEX. 623 personal estate in the hands of the executor for disposition, and dispos- ed of his whole estate, real and per- sonal, through the executor, the per- sonal to pay the widow the legacy, and the disposition was inconsistent with the widow's enjovment of her legal right, it was the clear and manifest implication, from the whole will, that the testator did in- tend the gift to be in lieu of dower, and did not by the use of the word '' estate" mean personal estate only. Norria v. Clark, 51 Dower is a legal right, wliich is favor- ed both in law and equity. To debar the widow of this right, and put her to an election between her dower and a bequest in the will, there must be some express declarations of the testator excluding her from her right, or it mast be clear, by im- plication, that such was his inten- tion, ib The personal estate is the only fund for the payment of legacies, unless a contrary intention appears in the will Sims v. Sims, 158 Where a legacy is made an exprei s charge upon the land, if the person- al estate in the hands of the execu- tor is sufficient to pay the legacy, and the executor squanders the es- tate, the legatee cannot resort to the land. The land is debtor for the legacy only, and not for the miscon- duct of the executor. ib Where the executor has in his hands fluids sufficient to pay all the lega- cies, and after pay ing some of them, squanders or misapplies the residue of the fund, the legatees unpaid cannot report to the others for con- tribution; the legatees who have received payment are entitled to the benefit of the ir diligence. When there is an original deficiency of as- sets, the rule is different: and the rule imy have a different applica- tion wh^n there is a participation in misapplying the asset.* between the executor atid such legatees as are paid their legacies. ib Hop? Cowperthwait, by her will, di- rected her trustees to pay a certain fund, as follows: " unto such of tl e brothers and sisters of tnv daugnt' r Hannah and their children, and in Mi'-li proportions as mv said daugh- ter H. shall by her last will and te-stament, or writing in natuie thereof, signed by her hand, and at- tested by two credible witnesses, di- rect and appoint." This language gives to th<> donee a discretion as to a selection between the objects named. Lippincott v. Ridyway, iw ! After the language quoted alwvre, fol- lows "my will being that uiy said daughter shall in such case have power to dispose of the same among her brothers and sisters, and then- children, in such proportions as she may think fit, but; to no other per- son or persons whatsoever. " t'< This limited the power of appoint- ment, and entitled each of the brothers and sisters of Hannah Lip- pincott, to a portion of the fund. '' E. E. went to the office of S., a scriv.e- ner, who drew her will, and alter it was executed, S. , at the request of E. E., put it in his private secre- tary with his private papers lor safe keeping. To the knowledge of S.. the will was never sent for, or taken away by E. E., and during frequent conversations between E. E. and S., the will was ^poken of. E. E. dies, and S., upon searching for the will, finds it gone from the place where he deposited it, and up- on search cannot find it. He states, under oath, that he believes the will to have been clandestinely taken from his secretary; held, that the presumption is that this was the last will of E. E. , and unless that presumption is overcome in some legal way, will be established. Hil- drethv. Schillinger, 1S!(> The evidence in this case stated, and the reasons given for the conclu- sion, that the evidence does not overcome the presumption in favor of the alleged paper being the last will of E. E. it> There is no reason for the court sub- mitting the question of fact, wheth- er a will has been cancelled, or sur- reptitiously destroyed, to a jury, where the evidence is such as to cre- ate no embarrassing doubt in the mind of the court. i/ The testator first charged all his es- tate, both real and personal, with the payment of his debts ; he then declared that the revenues should be used for tiiat purpos-c, topdhcr with such other appropriations ns he mokes. Held, that the word ap- propriations evinced the intention of the testator to designate and s-et njwirt the portion referred to frcm his other property fora specific eb- jeet. riz. to constitute n fm:- appropriated before real estate devised; but where the testator mikes his debts a charge upon his i^eal as well as personal estate, or upon his estate generally, the de- visees and legatees must boar their respective share of the burthen pro rota ; and this is the case where the testator commences his will with a general direction that his debts shall be paid. i/> Tin testator left four daughters, two grandsons, children of a deceased son, his deceased son's widow, and his own wife, the devisees of all his property. He first directs his ex- ecutors to pay off and discharge all his debts. He gives to his wife, during her natural life, the sole and exclusive use of all his plate, books, &c. To his daughter in law, he de- vises the sole and exclusive use and occupancy ami all tho rents and profits of tho Biddle farm, to !* VOL. ii. 3 o held and enjoyed by her from the time of his decease until the 25th day of March, immediately preced- ing the time when his grandson should arrive at the age of twenty- one years, with the proviso, and upon the condition, that his said daughter in law should, within three months after his decease, ex- ecute and deliver to his executors a full and absolute release and dis- charge of all claims and demands she might have against his estate. To his two grandsons, from the said 25th day of March, he gives the Biddle farm, as joint tenants, with remainder to their issue in fee, and in default of issue to the right heirs of the testator, fie also gives to his grandsons one third part of hjs pine lands and cedar swamp. To his four daughters, the testator gives his homestead farm and two-thirds of his pine lands and cedar swamps, with an estate of the same char- acter as that devised to his grand- sons. He then devises and be- queaths to his four daughters, to their heirs and assigns for ever, all the rest, residue, and remainder of his estate, to be equally divided among them, share and share alike, subject only to the payment of aH just claims against him on note, or book of account, funeral charges, testamentary and incidental ex- penses, and commissions. The tes- tator left one specialty debt, which was a bond debt, the principal of which was $tHHX), and which was due to his daughter in law. She re- fused to comply with the proviso under which the devise was made to her, under the will, of the Biddle farm. All the personal estate which passed under the residuary clause had been appropriated to pay the simple contract debts, and there was a deficiency. There was no other personal estate, except tho specific legacies to the widow. Also to the simple contract debts, it was admitted that the sj>ecinc devises mast contribute pro rata. Held, that as to the simple contract debts, the interest of tho residuary devisees iu tho Biddlo farm, must contribute pro rata with the other specific devises to pay the simple contract debts, but as to tho speci- alty debt, it is not liable to contri- bution. Decree that tho residuary personal estate be first appropriated to pay tho simple contract debts of tho testator and oxi>onse of settling the estate; that tho specific legacies an-1 dfVistM contribute pro ratn to to make up any deficiency; ami la 020 INDEX. to the specialty debts, the specnic j vise of the Bkldle farm being liable deviseo, except that of the i-.icuUe \ only in the event of a deficiency of farm, which fell into the residue, j all other property to pay the speciaJ- l