. ,. KEPORTS OF CASES ARGUED AND DETERMINED IN TOE COURT OF CHANCERY, THE PREROGATIVE COURT, AND, ON APPEAL,, IN THE COUET OE EEROES AND APPEALS, OP THE STATE OF NEW JERSEY. CHARLES EWING- GREEN, Reporter. ■V^OLTJIvIE I. SECOAW EDITION, WITH RSFERENCES SHOWING WHERE THE CASES HAVE BEEN CITED, AF- FIRMED, OVERRULED, QUESTIONED, LIMITED, ETC., DOWN TO TART I, VOL. XXXIX, N. J. LAW REPORTS (x VROOM), AND PART I, VOL. XXVIII, N. J. EQ. REPORTS (l STEW.), INCLUSIVE. By Join Linn, Esq., of the Hudson Co. Bar. JERSEY CITY: FREDERICK D. LINN & CO. 1 886. r ikcV\i Cliaiicellor DURING THE PERIOD OF THESE REPORTS, Hon. henry W. GREEN. Judges of the Court of Errors and Appeals. EX OFFICIO JUDGES. Hon. henry W. GREEN, Chancellor. " EDWARD W. WHELPLEY, Chief Justice. " E. B. DAYTON OGDEN, " LUCIUS Q. C. ELMER, " DANIEL HAINES, " PETER VREDENBURGH, " JOHN VAN DYKE, « GEORGE H. BROWN, Associate Justices Supreme Court, Judges Specially Appointed. Hon. JOHN M. CORNELISON. " WILLIAM N. WOOD. " JOSEPH COMBS. « ROBERT S. KENNEDY. " GEORGE F. FORT. " JOSHUA SWAIN, to March 19, 1863. " EDMUND L. B. WALES, from March 19, 1863. 3 778392 ]SrE\\^ JERSEY REPORTS. LAW REPORTS. COXE'S KEPORTS, - PENNINGTON'S REPORTS, SOUTHARD'S \ HALSTED'S GREEN'S HARRISON'S SPENCER'S ZABRISKIE'S DUTCHER'S VROOM'S 1 vol. - 2 2 - 7 3 - 4 ■* i. - 4 5 - 1 EQUITY REPORTS. SAXTON'S REPORTS, _ - _ . l vol. GREEN'S " 3 " HALSTED'S " 4 " STOCKTON'S " 3 " BEASLEY'S " . _ _ . . 2 " McCARTER'S " 2 " C. E. GREEN'S " 1 " 5 CASES REPORTED IN THIS VOLUME. Ai Davison's executors V. Johnson.. 112 Del. & Rar. Canal and C. & A. Allen, Straiten V 229 R. & T. Co's v. Ear. & Del. Anshutz V. Anshutz 162 Bay R. Co 321 Atwater V. Walker 42 Demarest v. Berry 481 Atwood, Keeney v 35|Demarest, Frey v 236 Dialogue, Stratton v 70 Diercks v. Kennedy 210 Duncan, Smith v 240 B. Bedford v. Newark Machine Company 117 Belford v. Crane 265 Benson V. Wolverton 110 Berckmans v. Berckmans 122 Berry, Demarest v '... 481 Botsibrd, Crowell v 458 Bragaw, Way v 213 Brown, Culver v 533 Burlew v. Hillraan 23 Burnham v. Dalling 144, 310 C. Central Railroad Company, Mor- ris Canal and Banking Com- pany V 419 Chattin, AdamS., In re 496 Child, John M. B., In re 498 Clark, Jordan v 243 Cook, Shipman v 251 Crane, Belford v 265 Crowell v. Eotsford 458 Culver V. Brown 533 Cummins, Johnson v 97 Cummins v. Little 48 D. Dalling, Burnham v 144, Daly, Randolph v 310 313 Fluke v. Fluke's executors 478 Fredericks, Sayre v 205 Freeman v. Scofield 28 Frey v. Demarest 236 G. Gariss v. Gariss 79 Garrett, Johnson v 31 Giveans v. McMurtry 468 Gould V. Tingley 501 Gregory, Miller v 274 Grinnell v. Merchants Insur- ance Company 283 H. Hillman, Burlew v 23 Hoagland V. Titus 44 Hodges, Robert v .... 299 Hopper v. Hopper 147 Hopper V. Malleson's executors.. 382 Howard v. Howard's executors.. 486 Hudnitv. Nash 550 Hudson V. Trenton Locomotive and Machine Manufacturing Company 475 Hutcheson v. Peshine 167 VJU TABLE OF CASES. IMunn, Kecne v. 393 In re Adam S. Chattin 496| In re John M. B. Child 498' In re Morris Weis 318 J. Janeway, Nicholson v 285 Jersey City and Bergen Point Plank Road Co., 8tory v 13 Johnson v. Cummins 97 Johnson, Davison's executors v.. 112 Johnson v. Garrett 31 Jordan v. Clark 243 K. Kearney v. Macomb 189 Keene v. Munn 398 Keeney v. Atwood 35 Kennedy, Diercks v 210 Kimball, Rose v .■^. 185 Kirkpatrick v. Winans 407 L. Lind, Walter v 445 Little, Cummins v 48 Lloyd, Michner v ... 38 Long's administrator v. Long... 59 M. Macomb, Kearney v Malleson's executors, Hopper v.. Marsh v. Marsh Matthieson, Morris Canal and Banking Company v McGee v. Smith McMurtry, Giveansv Merchants Insurance Company, Grinnell v Michner v. Lloyd Miller v. Gregory Moores v. Moores Morris Canal and Banking Com- pany V. Central Railroad Com- pany Morris Canal and Banking Com- pany V. Matthieson Morris County Bank v. Rock- away Manufacturing Com- pany Muir V. Newark Savings Insti- tution 189 382 391 443 462 468 N. Nash, Hiidnit v 550 Newark Machine Company, Bed- ford V 117 Newark Savings Institution, Muir V 637 Nicholson v. Janeway 285 Norcom V. Rogers 484 Norris v. Thomson's executors, 218, 542 P. Peshine, Hutcheson v 167 Pettit, Thorp v 488 E. Randolph v. Dalv 313 Rar. & Del. Bay R. Co., Del. & Rar. Canal and C. & A. R. & T. Go's V 321 Ralhboije, Young's administra- tor V 224 Reed's executors v. Reed 248 Ricamio, Tappan's executor v... 89 Robert v. Hodges 299 Robinson, Van Doren v 256 Rockaway Manufacturing Com- pany, Morris County Bank v.. 150 Rogers, Norcom v 484 Rose V. Kimball 185 Rose, Weart v .... 290 Rowe's executors v. White 411 283 38 274 275 419 174 28 251 453 Sayre V. Fredericks 205 Sayre's administrator v. Sayre... 505 Schenck v. Schenck's executors... Scotield, Freeman v Shipman v. Cook Shivers, Swedesborough Church V - Slack, Weatherby v 491 443 Smithy. Duncan 240 Smith, McGee v 462 Smith V. Vreeland 198 150 Story v. Jersey City and Bergen I Point Plank Road Company.. 13 537'Stratton v. Allen 229 TABLE OF CASES. IX Stratton v. Dialogue 70 Swedesborough Church v. Shi- 453 T. Tappan's executor v. Eicamio... Thomson's executors, Norris v. 218, Thorp V. Pettit Tingley, Gould v Titus, Hoagland v Trenlon Locomotive and Ma- chine Manufacturing Com- pany, Hudson V 89 488 501 44 475 Vreeland v. Vreeland's admin- istrator 512 W. Walker, Atwater v 42 Walling V. Walling S89 Walter v. Lind 445 Way V. Bragaw 213 _,„Weartv. Rose 290 ^^oiWeatherby V. Slack 491 Weis, Morris, In re 318 While, Eowe's executors v 411 Winans, Kirkpatrick v 407 Winship V. Winship 107 Woodward's administrator v. Woodward's executors 83 Wolverton, Benson v 110 WyckoflFv. Wyckoff 401 Van Doren v. Eobinson 256 Vanduyne v. Vanduyne 93 Vreeland, Smith v 198 Y. Young's administrator v Eath- bone 22^ CASES CITED IN THIS VOLUME. A. Abbott V. Smith, 2 W. Bl. 947... Ackerman v. Vreeland, 1 Mc- Cart. 23 417 Adamson v. Hall, 1 Turner & Russ. 258 Adin'rs of Earle v. Earie, Spen- cer 360 Agar V. Regents Canal Co., Cooper 77 Alderson v. Langdale, 3 Barn. & Ad. 6G0 Allen V. Hilton, 1 Fonb. Eq. 425, Alley V. Desohamps. 13 Vesey 225 Ames V. N. J. Franklinite Co., 1 Beas. 66 Anderson v. Martindale, 1 East 497 Andrew v. Hancock, 1 Brod. & B.37 Andrews V .Wallace, 29 Barb. 350, Angell V. Draper, 1 Vernon 399, Anonymous, 1 Salk. 154 Arnold V. Maynard, 2 tStory 354, Associates v. Jersey City, 4 Halst. Ch. 715 Atkinson v. Leonard, 3 Bro. C. 218 Att'y-Gen'l v. Corp. of Poole, 4 Mylne&C. 31 216 Att'y-Gen'l v. Norwich, 16 Si- mons 225 ■ B. Bakcrv. Morris' Adm'r, 10 Leigh 284 Bank of Maine v. Butts, 9 Mass. 49 Bank of Utica v. Wager, 2 Cow. 712 Barnes v. Gregory, 1 Head. 230, iBarron v. Barron, 24 Vt. 375.... 523 iBatten v. Earnley, 2 P. W. 163, 488 316 Beatv v. Lessee of Knowler, 4 I Peters 16« 372 Beck V. Burdett, 1 Paige 305.... 303 Bedsole v. Monroe, 5 Ired. Eq. Ill 313 250 Belford v. Crane, 265 201 198 Belknap v. Sealev, 2 Duer 570... 298 iBell V. Gongh, 3 Zab. 667. 431 378 Bellerjeau v. Ex'rs of Kotts, 1 South. 359 181 253 Benn v. Dixon, 10 Simons. 636.. 416 260 Bentham v. Haincourt, Prec. in Ch. 30 483 83 Bergen v. Bennett, 1 Caine's C. in E. 16 480 555 Berney v. Sewell, Jac. & W. 630, 483, Bill V. Kinaston, 2 Atkyns 82... 41& 29 Billings v. Baker, 28 Barb. 343... 107 Billings V.Taylor, 10 Pick. 460, 250 36 Blade v. Noland, 12 Wend. 173, 403 528 Blake v. Mamell, 2 Bail. & B. 303 47 279 62 Bonaparte v. C. & A. R. R. Co., 234 Bald. 205 378 427 Boston & L. R. R. Co. V. S. & L. 436 R. R. Co., 2 Gray 1 367 Boughton V. Boughton, 2 Ves., 238 Sen., 12 196 Boyd V. Hovt, 5 Paige 65.. ..216 315 315 Brace v. Taylor, 2 Atk. 253 457 Bracken v. Benllev, 1 Ch. R. 19 110 ." 416 Brinkeriioff v. Brown, 4 .Johns. Ch. 671 216, 303-315 Brinkerhoff v. Ex'rs of Mer- seiis, 4 Zab. 680 245 Brainard v. Jones, 18 N. Y. 35.. 66 69 Broadwell v. Stiles, 3 Halst. 58.. 402 Bromley v. Goodere, 1 Atk. 75.. 60 540 Brower v. Jones, 3 Johns. 230... 253 Bunn V. Winlhrop, 1 Johns. Ch. 540 329 88 297 Burr v. Burr, 2 Edw. Ch. 448... 39S 11 xu CASES CITED. Burtis et al. v. Adm'rs of Hop- kins 239 Butler V. Butler, 1 Pars, Sel. Cas. 329 280 B. and D. Turnpike v. Myers, 6S. &R. 12 ; 232 C. Cairns v. Chaubert, 9 Paige 163, 417 487 Camidge v. AUenby, 6 Barn. & Cress. 373 253 Campion v. Kille, 1 McCart. 229 43 Campbell v. Mesier, 4 Johns. Cas. 334 HI, 313 Carey v. Askew, 8 Vesey 492.... 196 Carter v. Carter, 4 Day 36 66 Carter v. Thorn, 18 B. Monroe 613 66 Cecil V. Briggs, 2 T. R. 639 312 Central R. R. v. Claghorn, 1 Speer's Eq. 545 232 Chambers v. Chambers, 15 Si- mons 183 416 Chambers v. Goldwin, 11 Ves. 1, 246 Chambers v. Sunderland, Halst. Dig. 216 508 Chandler v. Herrick, 3 Stockt. 499 279 Chapman v. Tanner, 1 Vern. 267...: 483 Charles v. Dunbar, 4 Mete. 498, 484 Charles River Bridge v. Warren Bridge, 11 Peters 420, 545..366 436 Chesterman v. Mann, 9 Hare 206 260 Cheever v. Smith, 15 Johns. 276, 410 Choate V. Choate, 3 Mass. 391... 395 Church V. Church, 3 Ma.ss. 157.. 395 City of Providence v. St. John's Lodge. 2 Rhode Island 46 260 Clark V. Clark, 24 Barb. 581 107 Clark V. Clark, 8 Paige 152 416 Clark V. Lord Abingdon, 17 Vesey 106 67 Clarke v. Johnson, 2 Stockt. 287, 239 Clarke v. Seton, 6 Vesey 411 60 Clarke v. Turton, 11 Vesey 240, 276 Clarkson v. Depevster, 3 Paige 320 217 303 Clason V. Church, 1 Johns. Case. 29 318 Clutch V. Clutch, Saxt. 474 896 Coates v. Cheever, 1 Cowen 460, 250 Collins V. Collins, 2 Mylne & K. 703 417 487 Conduittv. Soane, 1 Collyer 285, ' 416 Consequa v. Fanning, 3 Johns. Ch. 690 477 Cook V. Cook, 2 Beas. 268 ., 280 Cook v. Johnson, 1 Beas. 54 272 Cook V. Tousey, 3 Wend. 444... 65 Coppring v. Cooke, 1 Vern. 270 483 Coppuck V. Wilson, 3 Green's Ch. 75 503 Corey v. Corey, 3 Stockt. 400.... 165 Cotheal v. Blydenburgh, 1 Halst. Ch.l9 43 Couse v. Boyles, 3 Green Ch. 212 ". 298 Covenhoven's Case, Saxt. 19 199 Covenhoven v. Shuler, 2 Paige 132 487 Cox V. Coykcndall, 2 Beas. 138.. 245 Coe V. Halsted, 1 Green Ch.311, 94 Craig V. Hone, 2 Edw. Ch. 554.. 91 Craig v. Leslie, 3 Wheat. 563.... 480 Cranston v. Johnson, 1 Hov. Sup. to Ves., Jr., 267 28 Croton Turnpike Co. v. Ryder, 1 Johns. Ch. 615 378 Cruger v. Daniel, 1 McMull. Eq. 157 69 Cumberland v. Coilrington, 3 Johns. Ch. 229 400 Cumming v. Slater, 1 Younge & Col. 484 311 Cunliii" v. Manchester & B. C. Co 18 Curtiss V. Leavitt, 1 Smith 111.. 234 Cuyler v. Moreland, 3 Paige 273, 215, 303-316 D. Dailey v. Dailey, Wright 514... 140 Davies v. Davies, 9 Ve.^ey 461... Ill Davis V. Curtis, 2 Chan. Cas. 226 '. 60 Davis v. Davis, 2 Addams. 223.. 405 Davis v. Leo, 6 Vesey 784 425 Davis V. Sigourncy, 8 Mete. 487, 405 Davison v. Franklin, 1 Barn. & Ad. 142 213 Decouche v. Savetier, 3 Johns. Ch. 222 238 Dennison v. Imbrie, 3 Wash. C. C. 396 253 Den V. Dummer, Spencer 86 436 Den V. Gaston, 4 Zab. 818 227 Den V. Kimble, 4 Hal.st. 337 312 Den V. O'Hanlon, 1 Zab. 582 227 CASES CITED. Xlll Denley v. Moore, 1 Barn. & Aid. 123 Depeyster v. Clendining, 8 Paige 303 DeRiemer v. DeCantillon, 4 John. Cli. 85 Dewar v. Span, 3 Term R. 425.. Dickev V. Malechi, 6 Missouri, 177' Dike V. Greene, 4 Rhode Island 285 Dillebaugh's Estate, 4 Watts 177, ]>ilIon V. Dillon, 3 dirties 86... Disosway v. Bank of Washing- ton, 24 Barb. 60 Doe V. Roe, 1 Hopk. 276 Dolman v. Cook, 1 McCart. 56, 28 Doneraile v. Doneraile, Buller N. P. 296 Donnington v. Meeker, 3 Stockt. 362 : Doughtv V. S. & E. R. R. Co., 1 Zab. 442 Drake v. Drake, Halst. Dig. 385, Dux Bucks V. Gaver, 1 Vern. 257 /. E. Eads V. Williamson, 4 DeG., M. & G. 691 83 Eagleson v. Shotwell, 1 Johns. Ch. 536 Earl V. DeHart, 1 Beas. 280 Early v. Doe, 16 How. 610 Edgar v. Clevenger, 1 Green's Ch. 258 Edgell V. Haywood, 3 Atk. 357, 303 Elliott V. Pell, 1 Paige Ch. 268.. En Held Toll Bridge Co. v. H. & N. H. R. R. Co., 17 Conn. 40.. Evans V. Jackson, 8 Sim. 217... Everett v. Stone, 3 Story 453.... Exton V. Zuie, 1 McCart. 501... Ex parte Baker, 1 Coop. Ch. Cas. 205 Ex parte Bumpton, Mosely 78... Ex parte Earl Ferrars, Moselv 332 '. Ex parte Hall, 7 Vesey 260 Ex parte Smith, 1 Swanst. 4 Ex parte Southcot, 2 Ves., Sen., 403 Ex parte Tomlinson, 1 Ves. & B.58 Er parte Watkins, 3 Peters 193.. 86 416 232 211 405 Ex'rs Condict v. King, 2 Beas. 383 417 Ex'rs of Cogdell v. Devisees of Testator, 3 Dess. 373 222 Ex'rs of Conover v. Conover, Saxt. 412 217 312 Ex'r of Henry v. Dillev, 1 Dutch. 302 ..". 526 260 582' 3941 Fanning v. Dunham, 5 Johns. Ch. 122 473 553 t-jj^'Farnham v. Campbell, 10 Paige 310 598. 43 453 {l- 427 280 483 263 453 379 384 303 317 555 217 Fawkes v. Gray, 18 Vesey 131... 417 Fellows v. Fellows, 4 Cowen 682, 216 Fennimore v. Fennimore, 2 Green Ch. 296 181 Field v. Jackson, 2 Dick. 599... 425- Fiske V. Cobb, 6 Gray 144 417 Fisler v. Porch, 2 Stockt. 248... 275 Flagg V. Bonnell, 2 Stockt. 82... 113 Fletcher v. Ashburner, 1 Bro. Ch. Cas. 497 480 Foley V. Burnell, 1 Bro. C. C. 279 416 488 Fordvce v. Willis, 3 Brown's Ch. 588 Forman v. Blake, 7 Price 654. Forman v. Southwood, 8 Price 572 Francis v. Wilson, 1 Ryan & M. 105 Frazier v. Frederick, 4 Zab. 162.. Freeman v. Deming, 3 Sand. Ch. 332 French v. Shotwell, 6 Johns. Ch. 235 Fulton Bank v. Beach, 1 Paige 433 206 311 311 65 173 234 232 553 367 G. 258 234 Garrabrant v. Lawrence 239 509 Gaskarth v. Lord Lowther, 12 Vesev 107 260 498 Gaskeli v. Sine, 2 Beas. 400 193 319iGermond v. Germond, 6 Johns. Ch. 347 395 319'Ge.st V. Flock, 1 Green Ch. 108.. 480 498|Gibbons v. Dawlev, 2 Chan. Cas. 498; 198 _ 239 [Gibson V. Egerton, 1 Dickens 497 408 60 iGillespie v. Alexander, 3 Rus.s. 497! 130 284 227,Glegg V. Legh, 4 Madd. 208 397 XIV CASES CITED. Godfrey v. Maw, 1 Younge & Collyer 484 311 Goepp V. Garteser, 11 Casey 130 161 GoJdhawk v. Duane, 2 Wash. Ch. 323 65 Gordon v. Preston, 1 Watts 385.. 232 Gorgass v. Douglass, 6 Serg. & R. 612 160 Gormley v. Oakev, 7 Louis 452.. 297 Gough V. Bell, 2 Zab. 457.. 366 Graham v. Call, 5 Munf. 396.... 260 Grant v. Grant, 2 Curties 16 133 Griiy's Estate, 1 Burr. 327 524: Gray v. Fox, Saxton 259 530 Greenaway v. Adams, 12 Vesey | 395 148 Griffiths V. Smith, 1 Vesey 97... 417| Groff V. Jone.s, 6 Wend. 522 94 Grosvenor v. Allen, 9 Paige 74.. 217 1 Grosvenor v. Cook, 1 Dickens 305 60 G. W. K. R. Co. V. Eushout, 5 DeG. &S. 290 19 H. 91 400 Hale V. Thomas, 1 Vernon 349 Hall V. Warren, 9 Vesey 608.:. 148 Hallet V. Thompson, 5 Paige 583 .^ Hamilton v. W^orley, 2 Vesey 62, Hammerton v. Hammerton, 2 Hagg.E. 8 Hammond v. Fuller, 1 Paige 197, Harris v. Clap, 1 Mass. 308 Harri.son v. Battle, 1 Dev. Eq. 537 303 Harrison v. Talbot, 2 Dana 258.. 298 Hart V. Hart, 1 Ch. R. 260 416 Hart V. Small 4 Paige 288 460 Hartshorne v. Johnson, 2 Halst. 108 Harvev v. Harvey, Repts. Temp. Finch 363 ". Harvey v. Tebbutt, Jac. & W. 203 Haven v. Foster, 9 Pick. 112.... Hayes v. Kershow, 1 Sandf. Ch. 261 Hearie v. Greenback, 1 Vesey, Sen., 298 Heath V. Perry, 3 Atk. 101 Heathcoate v. North S. R. E. Co., 2 Macn. & Gor. 100 19 Hendricks v. Robinson, 2 Johns. Ch. 296 303 Henkle v. Royal Exchange As- surance Co., 1 Vesey, Sen., 320 473 [Herbert v. Ex'r of Tuthill, Sax- I ton 141 480 Herris v. Jamison. 5 T. R. 556.. 316 iHind's Estate, 5 Wheat. 138 523 Holmes v. Holmes, 4 Barb. 295.. 52(j Homer v. Shelton, 2 Melc. 206, I 417 488 Hordipp V. Ottwav, 2 Saund. 106, 64 Howard v. Howard, 1 Vern. 134, 239 Howe V. Earl of Dartmouth, 7 Ves. 137 416 487 Howell V. Baker, 4 Johns, Ch. 118 242 Hud.son V. Wadsworth, 8 Conn. 348 417 488 Hugh A ud ley's Case, Hardress 136 62 Hughes V. Wicklifte, 11 B. Mon- roe 202 66 Hall V. Eddy, 2 Green 176 417 Hunt V. Field, 1 Stockl. 36 176 Hurd V. Cass, 9 Barb. 366. ..107, 526 62 Innis v. McCrummin, 12 Martin 425. In re Dyce Sombre, 1 Phillips 436 In re Flint, Shelf, on Lun. 91... Iln re Gordon, 2 Phillips 242 133'ln re Mills, 2 Mylne & C. 38 n. a., 379jln re Waters, 2 Mvlne & C. 38, 66 Izard v. Bodine, 1 Stockt. 311.... J. 297 319 497 319 500 500 478 227 182 .Jackson's Case, 5 Vin. Ab. 543, 261 .James v. McKernon, 6 Johns. 543 277 Jennings v. Jennings, 2 Beas. I 38 280 4831 Jersey Citv v. M. C. & B. Co., 1 400l Beas. 547 _. 437 Ijohnson V. Cummings 273 88 Johnson v. Mills, 1 Vesey, Sen., I 282 91 196'johnston's Estate, 9 Watts & 246 Serg. 108 532 Keigliley v. Brown, 16 Vesey 344 311 CASES CITED. XV Kelly V. McCarthy,. 3 Eradf. 7... 526 Kemp's Leasee v. Kennedy, 5 Cranch 173 227 Ketlleby v. Kettleby, 2 Dickens 514 '.: 60 Keyes v. Moultrie & Palmer, 3 Bosw. 1 540 King V. Baldwin, 17 Johns. 3S4, 238 King V. Ex'rs of Berry, 2 Green's | Ch.480 , 239 King V. King's Adm'rs, 3" Johns. Ch.552 531 King V. Montague, 4 Barn. & Or. 598 366 Kirwane v, Blake, 2 Bi'o. Pari. C. 333 62 Knight V. Maclean, 3 Bro. Ch. 496 61 Laroe v. Douglass, 2 Beas. 308 :. 181 184 Langworthv v. Chadwick, 13 Conn. 42 417 488 Lashley v. Hogg, 11 Yesey602.. 284 Law V." Hunter, 1 Euss. 100 476 Law V. Kigby, 4 Brown's Ch. 63, 218 Lawrence v. United States, 2 McLean 581 66 Leavitt V. Leavitl, Wright 716.. 279 Leeke v. Bennett, 1 Atkyns 470, 416 Lessee of McCullonghs v. Rod- erick, 2 Hammond 380 170 Lewis V. Lord Lechmere, 10 Mod. 503 148 Livingston's Ex'rs v. Livingston, 4 Johns. Ch. 287 457 Livingston v. Livingston, 4 Paige 111 467 Livingston v. Van Ingen, 9 Johns. 500 378 Loftus v. Swift, 2 Sch. & Lef. 655 483 Logan V. Logan, 2 B. Mon. 142.. 280 Lord Diinsev v. Plunkett, 2 Bro. Pari. C 251 62 Lord Lonsdale v. Shurch, 2 T. K. ,388 61 Loveden v. Loveden, 2 Hagg. C. 1 133 Lowe V. Govett, 3 Barn. & Ad. 303 366 Lupton V. Lupton, 2 Johns. Ch. 628 246 Lyon V. Clark, 4 Seld. 148 65 M. Maokworth v. Thomas, 5 Vesey 330 ".. 62 Maddeford v. Anstwick, 1 Sim. 89 288 Manchester College v. Isher- wood, 10 Simons 476 311 Mann v. Pearsop, 2 Johns. 37.... 297 Marquis of Hertford v. Boore, 5 Vesey 719 '. 83 Marsh v. Martindale, 3 Bos. & Pull. 154 539 Martin V. Mowlin, 2 Burr. 969... 206 Marvin v. Bennett, 26 Wend. 169 297 Mason v. Gardner, 4 Bro. Ch. 436 553 Massey V. Cureton, Cheeves 181, 532 Matter of Hoag, 7 Paige 312.... 320 Matter of Eogers, 1 Halst. Ch. 46 319 Matter of Perkins, 2 Johns. Ch. C. 124 499 Matter of Pettit, 2 Paige 174... 499 Matter of Price, 4 Halst. Ch. 533, 319 Matthews v. Newley, 1 Vern. 133, 239 Mayor of Jersey City v. Morris Canal and Banking Co., 1 Beas. 551 42G McCosker v. Golden, 1 Bradf. 64 107 McEwen v. Broadhead, 3 Stockt. 129 113 McKibbin v. Brown, 1 McCart. 13 259 McMurtry v. Giveana, 2 Beas. 351 212 Meeker v. Marsh, Saxton 198... 239 Mel ward v. Earl of Thanet, 5 Vesey 720 263 Merrill v. Emory, 10 Pick. 512, 417 Merwin v. Smith, 1 Green Ch, 196 94 Miller v. Ford, Saxt. 364 473 Miller v. Miller, Saxt. 386 165 Milward v. Earl of Thanet, 5 Vesey 720 83 Moflliit v. Barnes, 3 Caines 49 65 Mohawk Br. Co. v. Utica & Schenec. R. R. Co., 6 Paige 554 380 Mole V. Mole, -1 Dick. 310 246 Moore v. Blake, 1 Ball & Beat. 62 82 Moore v. Lyttle, 4 Johns. Ch. 184 458 Morgan v. Schermerhorn, 1 Paige 544 553 arvi CASES CITED. Morris Canal Co. v. Emmett, 9 Paige 168 297 Mosley v. Marshall, 27 Barb. 42, 400 Moss V. Wood, R. M. Char. 42.. 65 Moulin V. Insurance Co., 4 Zab. 222 305 Mower v. Kip, 6 Paige 88 69 Munt V. Shrewsbury & C. R. R. Co., 13 Beav. 1 19 N. Nab V. Nab, 10 Mod. 404 206 Naylor v. Field, 5 Dutcher 287, 106, 273, 524 Neate v. Duke of Marlborough, 9 Sim. 60 804 Nelson V. Matthews, 2 Hen. & Munf. 164 298 Neville v. Derueritt, 1 Green's Ch. 335 275 Nevitt V. Gillespie, 1 How. (Miss.) 113 425 Newburgh Turnpike Co. v. Mil- ler, 5 Johns. Ch. 112 373 North American Insurance Co. V. Graham, 5 Sandf. S. C. 197, 304 O. O'Dell V. Young, 1 McMull. Eq. 155 532 Ogden V. Gibbons, 4 Johns. Ch. 160 372 Orcutt V. Orms, 3 Paige 459 532 Ordinary v. Ex'rs of Smith, 3 Green 92 238 0.sborn v. Adams, 18 Pick. 247.. 170 Osgood V. Franklin, 2 Johns. Ch. 21 481 Outcalt V. Disborough, 2 Green's Ch. 216-17 425 Owens V. Dickenson, 1 Craig & Ph. 48 105 P. Pamplin v. Green, 2 Chan. Cas. 95 239 Parker V. Williams, 4 Paige 439 460 Park hurst v. Cory, 3 Stock. 233, 94 Parmlee v. Egan, 7 Paige 610... 217 Peer v. Cookerow, 2 Beas. 136.. 112 Penn v. Butler, 4 Dail. 354 29 Pennock v. Hoover, 5 Rawie 291, 160 Peril V. Wallis, 2 Dallas 252 65 Perkins v.Cottrell, 15 Barb. 446, 526 Pickering v. Pickering, 1 Beav. 31 417 487 Pick ford v. Hunter, 5 Simons 122 218 I'ittenger v, Pittenger, 2 Green's Ch.l56 227 Pitts v. Tilden, 2 Mass. 118 68 Pontchartrain R. Co. v. New Orleans & C. R. R. Co., 11 Louisa. Ann. 253 331 Porter v. Cox, 5 Maud. 80 Ill Powell V. Clark, 5 Mass. 355 297 Pratt V. Rathbunn,7 Paige 271.. 284 Price V. Methodist Church, 4 Ham. 547 425 Proprietors of Bridges v. Hobo- ken Land & Improvement Co., 2 Beas. 81,94 372 436 Proprietors of Stourbridge Canal V. Wheeley, 2 Barn. & Ad. 793, 372 Providence Bank v. Billings, 4 Peters 514 372 Purse V. Snapiin, 1 Atk. 417 221 Pultney v. Warren, 6 Vesey 92.. 62 Q. Quackenbu.sh v. Van Blarcom... 302 Quesnei v. Woodlief, 2 Hen. & Munf. 173 298 E. Randall v. Russell, 3 Mer. 193, 416 487 Ransom v. Nichols, 22 N. Y. 110, 107 Rapeiyea v. Rapelyea, 27 Barb. 610 400 Rebecca Owings' Case, 1 Bland Ch.290 497 Read v. Drake, 1 Green's Ch. 78, 508 Reade v. Livingston, 3 Jolins. Ch.500 272 Reed v. Eddy, 2 Green 176 487 Remsen v. Remsen, 2 Johns. Ch. 501 ; 478 Renner v. Bank of Columbia, 9 Wheat. 581 403 Rhodes V. Vinson, 9 Gill. 169... 406 Richards v. Baker, 2 Atkvns 321.. 416 Richmond R. R. Co. v. L. R. R. Co., 13 Howard 83 366 Riggs V. Taylor, 9 Wheaton 483.. 403 CASES CITED. XVII River Dunn Navigation Co. v. N. M. R. R. Co., 1 Railway Cas. 154 '. 378 Robert v. Hodges, 1 C. E. Green 299 467 RockwelTv.Morgan, 2 Bcas.'sis'gi 250 Rogers v. Allen, 3 Ohio 488 170 Rogers v. Ralhbnn, 1 Johns. Ch. 367 553 Rogers v. Vosburgh, 4 Johns. Ch.84 217 Ross V. Adams, 4 Dutch. 160.... 106 Rons V. Noble, 2 Vern. 249 488 Rowe V. White, 1 C. E. Green 411 488 Ruddle V. Ambler, 18 Ark. 369.. 553 S. Sailly V. Elmore, 2 Paige 497... 238 Salter v. Williamson, 1 Green • Ch. 480 239 Sanders v. Richards, 2 Collyer 568 258 Scott v. Beecher, 5 Haddock 96.. 400 Scott v. Nesbitt, 2 Bro. Ch. C. 641 473 Scudder v. Trenton Delaware Falls Co., Saxton 694 378 Seymour v. Seymour, 4 Johns. Ch. 409 238 Shannon v. Merselis, Saxton 413, 493 Sharp V. Morrow, 6 Monroe 300, 477 Sharp V. Speir, 4 Hill 76 384 Shaw V. Shaw, 17 Conn. 189 279 Sheddon v. Goodrich, 8 Vesey 482 196 Sherman v. Eldon, 1 Hilton 476.. 525 Sherwood v. Sanderson, 19 Vesey 2g9 497 Sh irley * v." Watts," 3 At k .' 2o6 .' .... 303 Shottenkirk v. Wheeler, 3 Johns. Ch. 275 232 Shumway v. Cooper, 16 Barb. 556 107 Sidney v. Sidney, 3 P. W. 269... 277 Simpson v. Denison, 10 Hare 51.. 19 Skillman v. Skillman, 2 Beas. 403 201 271 Slanning v. Style, 3 P. W. 335, 416 488 Sloan V. Sommers, 2 Green 517.. 453 Smedes v. Honghtaling, 3 Caines 48 65 Smith V. Clarke, 12 Vesey 477... 276 Smith V, Collyer, 8 Vesey 89.... 426 Smith V. Colvin, 17 Barb. 157, 187 526 Smith V. Moore's Ex'r, 3 Gr. Ch.485 239 Smith V.Wilkinson 477 Snyder v. Snyder, 3 Barb. 621... 526 Spurrier v. Mayoss, 1 Vesey 531.. 211 Stanley v. Robinson, 1 Russ. & M. 627 277 State V. Bentley, 3 Zab. 538 436 State V. Branin, 3 Zab. 484 38 State V. Collector of Jersey City, 4 Zab. 108 389 State V. Ford, 5 Blackf. 392 66 State V. Way man, 2 Gill & J. 254 66 State of Pennsylvania v. Wheel- ing B. Co.. 13 How. 519 379 St. Colnnibe's Heirs v. United States, 7 Peters 626 477 Stead's Ex'rs v. Course, 4 Crauch 403 32 384 Stebbin v. Eddy, 4 Mason 414, 297 299 Stephenson v. Dowson, 3 Beav. 349 221 Stevens v. Ender.s, 1 Green 271.. 226 Stevens v. Post, 1 Beas. 408 275 Stevens v. South Davon R. R. Co., 13 Beav. 48 19 Stockton v. Ford, 11 Howard 247 242 Stokes V. Middleton, 4 Dutch. 32 227 Storm V. Mann, 4 Johns. Ch. 21.. 425 Stoughton V. Leigh, 1 Taunt. 402, 250 Stubbs V. Parsons, 3 Barn. & Aid. 516 36 Stukes V. Collins, 4 Desaus, 207, 532 Swavze v. Swayze, 1 Stockt. 273.. 303 S. & H. R. R. Co. V. L. & T. & C. R. R. Co., 2 Phillips 666... 19 Taylor v. Bell, 2 Vern. 171 473 Taylor v. Stibbert, 2 Vesey 437.. 261 Taylor v. Wendel, 4 Bradf. 324.. 400 Tazewell v. Saunders, 13 Grattan 354 69 Tennants v. Gray, 5 Munf. 494.. 65 Tew V. Winterton, 3 Bro. Ch. 489 60 Thomas v. James, 7 Watts & Serg. 381 160 Thorp V. M acauley, 5 Madd. 218, 397 Tiernan v. Wilson, 6 Johns, Ch. 413 32,52, 94 Tom 1 in v. Tom 1 in, 1 Hare 236.. 47(* Townsend v. Brown, 4 Zab. 87... 436 XVIU CASES CITED. Traphagen & Adams v. Koss 194 Trevelvan v. Trevelyan, 1 Phill. 149 .' 405 Turner v. Bobinson, 1 Sim. &S. 313 216 U. United States v. Arnold, 1 Gall. 360 66 United States v. Arrendondo, 6 Peters 738 372 436 United States v. Fisher, 2 Cranch 386 428 V. Vachel V. Vaehel, 1 Chan. Cas. 129 416 Valance v. Bausch, 28 Barb 633, 107 Van Bergen v. Van Bergen, 2 Johns. Ch. 272 379 Vandyke v. Chandler, 5 Halst. 49 . 503 Van Mater v. Sickler, 1 Stockt. 483 239 Vannote v. Downey, 4 Dutch. 219 526 Van Schaic v. Edwards, 2 Johns. Cas. 355 211 Varet v. N. Y. Ins. Co., 7 Paige 560 238 Voorhees v. Bank of U. S., 10 Peters 449 ._ 227 Vroom V. Ditmars, 5 Paige 528, 112 313 W. Walcott V. Harris, 1 Rhode Island 404 66 Waldron v. Waldron, 4 Bradf. 114 400 Walker v. Eastern Co. R. R. Co., 6 Hare 594 148 Walker v. Ren my, 12 Casey 414.. 524 Walker v. Woodward, 1 Russ. 110 476 Wallace v. Fitzsimmons, 1 Dall. 2-50 29 Ware v. G. J. W.W. Co., 2 Russ. &M. 470 19 Ware v.Thompson, 2 Beas. 67... 473 Warner v. Thurlo, l5 Mass. 154.. 66 Ware v. Ware 163 Wartnaby v. Wartnaby, Jacobs 377 485 Watson V. Bonney, 2 Sandf. S. C. 405 526 Watson's Ex'rs v. McLaren, 19 Wend. 557 213 Wav V. Bragaw, 1 C. E. Green 213 316 Westervelt v. Gregg, 2 Kern. 202 107 West River Bridge Co. v. Dix, 6 How. 529 367 Whaley v. Norton, 1 Vern 484.. 277 Wheaton v. Phillips, 1 Beas. 221 105 White V. Medav, 2 Edw. Ch. 486 238 White V. White, 5 Barb. 474.... 526 Whitelegg v. Whitelegg, 1 Bro. C. C. 57 417 Wiggins V. Armstrong. 2 Johns. Ch. 144 303 Wikofi V. Davis, 3 Green's Ch. 224 493 Wilder v. Keeler, 3 Paige 164... 284 Wilks V. Davis, 3 Mer. 507 260 Williams v. Brown, 4 Johns. Ch.682 303 Williams v. Michner, 3 Stockt. 520 302 W^illiams v. Peyton's Lessee, 4 Wheaton 77 384 Williams v. Thorn, 11 Paige 464 91 Wrlliams v. W^illiaras, 3 Green 255 540 Wilson v. Baptist E.S., 10 Barb. 320 528 Winter v. Henderson, 2 Halst. Ch. 31 493 Wood V. Wood, 2 Paige 113 395 Wood v. Monell, 1 Johns. Ch. 506 33 Worley v. Glenworth, 5 Halst. Ch. 241 312 W^yatt v. Marquis of Hertford, 3 East 147 410 Y. Young V. Chambers, 3 Harris 267 161 Young V. Frier, 1 Stockt. 465.... 303 Young v. Paul, 2 Stockt, 401.... 149 Yule v. Yule, 2 Siockt. 138 165 CA-SES ADJUDGED IN THE COURT OF CHAA^CEM or THE STATE OF NEW JEESEY, FEBRUARY TERM, 1863. Henry W. Greex, Esq., Chancellor. RuFUS Story vs. The Jersey City and Bergen Point I'lank Road Company, and others. 1. The Court of Chancery has no power, by injunction, to restrain any citizen from petitioning either branch of the legishiture upon any subject of legislation in wliich he is interested. Such restraint would be an unau- thorized abridgment of the political rights of the party enjoined. 2. The proper office of Courts of Justice is to adjudicate upon, and to pro- tect and enforce the legal and equitable rights of parties litigant, as they are established by existing laws. It is no part of their appropriate function to determine in advance, wheilier a proposed law may or may not be en- acted consistently with the rights of parties, or to interfere directly or in- directly with the course of legislation. 3. Where, at the time of the grant of a charter to a corporation, there is a general law of the state, that the charter of every corporation granted by the legislature shall be subject to alteration, suspension or repeal, in the discretion of the legislature, the legislature, in granting such charter, must be deemed to have reserved to tliemselves the rightof altering, suspending or repealing the same, whenever, in their discretion, the public good may require it, as fully as if the reservation were inserted in the charter. And all contracts, express or implied, resulting from the act of incorporation Vol. I. A 13 14 CASES IN CHANCERY. Story V. Jersey City and Bergen Point Plank Road Co. and its acceptance by the stockholders, must be deemed to have been en- tered into by both parties, subject to that reservation. 4. Whatever limitation may exist to the reserved right of tlie legislature to alter or repeal a contract, such reservation is in itself valid, and this court ought not, upon a motion for a preliiuiuary injunction, to pronounce any alteration, suspension or repeal of the charier, to be unconstitutional or illegal. Much less should this court make such declaration in advance of any actual legislation. Under the provisions of the charter of incorporation of the Jersey City and Bergen Point Plank Road Company, Pumph. Laws 1850,2^. 255, and the supplement thereto, Laws, 1851, p. 288, and 18G0, p. 392, and of the charter of incorporation of the Jersey City and Bergen Railroad Company, Laws, 1859, p. 411, and the supplement thereto, Laws,,lS60, p. 393 — Jleld, that the occupation of a part of the ancient highway on which the plank road is constructed, by the railway, with the consent of the plank road company, without the personal consent of a stockholder, the plank road company having been authorized by the legislature to lay rails upon their road, is no violation of the rights of such stockholder. Held also, that the sale by the plank road company of the whole or a part of their road to the railroad company, without the personal consent of a stockholder, is not such an infringement (if any) of his rights as this court will inter.*ereto restrain by injunction. Held further, that a change of the route of the plank road by authority of the legislature, at the instance of the plank road company, is not a fun- damental change of the objects of the company, or a fundan^ental alteration of the structure thereof, which equity will restrain at the instance of a stockholder. The bill in this cause was filed by Riifiis Story, a stock- holder in the Jeisey City and Bergen Point Plank Road Com- pany, for an injunction to restrain the coniniission of acts by the company, charged to be prejudicial to the interest of the complainant as a stockholder in said company. The company was incorporated on the 8th of March, 1840, and was .au- thorized to construct a plank road of a specified description, from Grand street, in Jersey City, uj)oii the main road or highway, to Bergen Point. The charter was accepted, the stock subscribed (the complainant becoming a stockholder), the company organized, and the road constructed pursuant to the requirements of the charter and of a supplement thereto, approved on the 14th of March, 1851. The high- way over which the plank road was thus constructed, for the FEBRUARY TERM, 1863. 15 Story V. Jersey City and Bergen Point Plank Road Co. distance of about two miles from the Kill Van Kull to a turn in the road to the west, a few hundred feet north of where the Reformed Dutch Cliurch of Bergen Neck now stands, is part of an ancient highway, laid out and opened three rods wide, in the year 1786. The Jersey City and Bergen Railroad Company were in- corporated by an act approved on the 15th of March, 1859, with power to construct a railroad from some point ou the Kill Van Kull, at or near Bergen Point, to the Newark turnpike road, with one or more branches to the ferries in Hudson county, south of Hoboken. They were authorized to purchase any plank road or roads within the limits defined by their charter. They were prohibited by their charter from using any other than horse power in running their cars, and from constructing their road within fifty feet of any j)lank road, without the consent of such plank road company, except to cross the same. By a supi)lement to the charter of the plank road company, approved on the 17th of March, 1860, they were authorized to lay iron rails and run cars upon their road, with the pro- viso, among others, that said rails should be so laid as not to binder or obstruct the public travel on said road, and also to straighten or widen their road or any part thereof, at their pleasure, on first obtaining the written consent of the owners of the land taken for such straightening and widening. The complainant never personally assented to the last mentioned act, or to the act incorporating the railroad company. By virtue of the last mentioned act, the promoters of the railway, who had a majority of the stock of the ])lank road company, and the said plank road company claim to have a right to lay said railway or to allow the railroad company 80 to do, upon that part of the plank road extending about two miles northward from the Kill Van Kull, and have en- tered into negotiations and made arrangements for that pur- pose, and have advertised that application will be made to the legislature, at its next session, for power to alter the route of the plank road and to straighten the same. The pro- 16 CASES IN CHANCERY. Story V. Jersey City and Bergen Point Plank Road Co. meters of the railway also threaten and intend that the plank road company shall give its consent to the occupation of their road for a railway, or make sale of the plank road or some part thereof for that purpose. The bill charges that, if the intentions of the two com- panies and of the persons owning the majority of the stock of the plank road company, but interested in the said railway, are carried out, the object for which the plank road company was created, will, without the complainant's consent, be abandoned, the route of the road altered, and a new route established. That the complainant's funds and the funds of said corporation will not be devoted to the olyects of said cor- poration, but to other and different pur[)Oses ; the objects and structure of the company will be fundamentally altered ; the franchises of the company disposed of and impaired ; and thus the contracts between the complainant and the plank road company and the stockholders thereof, and the trusts with which said plank road company is charged, would be violated. That if the legislature shall pass such act as is ad- vertised and intended to be applied for, without the com- plainant's consent, it would impair the franchise granted to the plank road company and to the complainant as co-stock- holder thereof, and would authorize an abandonment of a part of the route of the road. That the capital stock and franchises of the company will, by the state, be diverted from the objects of said incorporation, and the objects and structure of the company fundamentally altered, and thereby the obligation of the contract between the complainant and the state, as well as of the contracts between the complainant and the company and the other stockholders thereof, be im- paired. That the conditions upon which the grant of power to lay the railway upon the j)lauk road was made cannot be complied with, inasmuch as the construction and use of said railway upon the plank road, will necessarily hinder and ob- struct the travel thereon. The prayer of the bill is — 1. That the plank road company may be perpetually re- FEBRUARY TERM, 1863. 17 Story V. Jersey City and Bergen Point Plank Road Co. strained from consenting to the occupation, by the railway, of any part of the plank road ; and the railroad company from accepting such consent, without the consent of the com- plainant and the other stockholders of the plank road com- pany, on whose behalf the bill is filed. 2. That the plank road company may be perpetually en- joined from selling any part of their road to the railroad company; and the railroad company from making such pur- chase, without the like consent. 3. That the plank road company may be perpetually en- joined from making any application to the legislature for authority to abandon any part of said plank road, or to change fundamentally the ol)jects of said company, or to alter fun- damentally the structure of said road, without the like con- sent ; and the railroad company, its officers, stockholders and promoters, from aiding and abetting such application. 4. That the railroad company may be perpetually enjoined from building a railway on said part of said plank road, and from making any excavation therein, or doing any act there for that purpose. The cause was heard on application for an injunction pur- suant to the prayer of the bill, upon the bill, answer and affidavits. Gilchrist, for complainant. Zabrlskie, for defendants. The Chancellor. Most of the points discussed by coun- sel upon the hearing, and upon which the decision of the present application in any degree rests, are free from serious doubt or difficulty. At the present stage of the cause they will be disposed of without further discussion, by stating briefly the grounds of the decision. I am of opinion — 1. That the occupation of a part of the ancient highway on which the plank road is constructed, by the railway, with the consent of the plank road company, without the personal 18 CASES IN CHANCERY. Story V. Jersey City and Bergen Point Plank Road Cc. consent of the complainant, the plank road company having been anthorized by the legislature to lay rails ujx)n their road, is no violation of the rights of the complainant, as a stockholder of said company. 2. That the sale by the plank road company of the whole or a part of their road to the railroad company, without the personal consent of the complainant, is not such an infringe- ment (if any) of the complainant's rights as a stockholder, as this court will interfere to restrain by injunction. 3. That a change of the route of the plank road by author- ity of the legislature, at the instance of the plank road com- pany, is not a fundamental change of the objects of the com- .pany, nor a fundamental alteration of the structure thereof, which equity will restrain at the instance of a stockholder. This disposes of the motion, so far as an injunction is asked to protect the property of the complainant or his rights, from any violation by the acts of the defendants under existing laws. But the court is further asked, that the plank road com- pany may be perpetually restrained from making any appli- cation to the legislature for authority to abandon any part of their plank road, or to alter fundamentally the structure of the said company ; and that the said company, its officers and promoters, may be perpetually enjoined from aiding and abet- ting such application. This, it is believed, is the first instance in this country, of an application to a court of equity to restrain, by writ of in- junction, an application to the legislature for any purpose, either of public or private concern. It is admitted that there is no American precedent for the exercise of such power. This fact in itself, though not decisive, is a persuasive argu- ment against the propriety of its exercise. In England, though applications to parliament have been restrained by injunction, the practice is of very recent origin, and there are but few reported cases of its exercise. It was adopted by Vice Chancellor Shadwell, in 1831, in Cunliff v. The 3Inn- Chester and Bolton Canal Company, and in Ware v. The FEBRUARY TERM, 1863. 19 Story V. Jersey City and Bergen Point Plank Road Co, Grand Junction Water Worhs Company, 2 Ra^^s. & M. 470, and note. The former case was compromised witliout ai)peal ; the latter was reversed on appeal by the Lord Chancellor. In The Stockton and Hartlepool Railway Company v. The Leeds and Thirsk and The Clarence Railway Companies, 2 Phillips Q(iQ, (1848), an injunction was granted by Vice Chancellor Shad well to restrain a railroad company from op- posing a bill brought before parliament by another railroad com[)any for the amalgamation of the two companies. On appeal the injunction was dissolved upon the merits, though the jurisdiction of the court was maintained by Lord Cot- tenham. In Heathcote v. The North Staffordshire Railioay Com- pany, 2 Macnaghten and Gor. 100, (1850), an injunction was granted by the Vice Chancellor, restraining the defendants from making application to parliament for any act to author- ize them to abandon certain branch railways, or to authorize anything to be done or omitted by the company, inconsistent with, or repugnant to, a covenant entered into by them with the complainant. This injunction was also dissolved by Lord Cottenham upon the merits. In no one of these cases was the injunction restraining a party from making application to parliament, either in support of or in opposition to a bill, finally sustained. There are a number of cases in which the court have en- joined a corporation having funds for distinct objects, from using them to promote an application to parliament for a fundamental change in their charter. But this, it is obvious, is an exercise of power resting on very different princi{)les. It is simply a restraint Upon the corj)oration of a diversion of its funds from the purposes for which they are held in trust to other and different purposes. The Attorney General v. The Corp. of Norwich, 16 Simons 225; 3Iunt v. The Shrcv^s- bury and Chester Railway Co., 13 Beav. 1 ; Stevens v. The South Devon Railway Co., Ibid. 48; llie Great West. Rail- way Co. V. Rushout, 5 JJe Gex and Small 21)0, (10 Eur/. Law and Eq. 72) ; Simpson v. Denison, 10 Hare 51, (IG Jur, 828). . 20 CASES IN CHANCERY. Story V. Jersey City and Ber°;en Point Plank Road Co. The rule seems to be well settled in England, that a court of equity will not, either at the ijistance of a stockholder or of a thiid party, restrain a corporation from applying to par- liament for an alteration of its charter. As has already been intimated, the jurisdiction of the Court of Chancery to restrain a party from petitioning par- liament for or against a measure, has been rej)eatcdly atlirmed by the English Chancellors. Thus, in The Stockton and Hartlepool Railway Company v. The Leeds and Thirsk and The Clarence Railway Companies, Lord Cottenham said : " There is no question whatever about the jurisdiction ; a party who comes to oppose a railway bill in parliament, does so solely in respect of his private interest, not as represent- ing any interest of the public, or for the purpose of com- municating any information to parliament. This court, therefore, if it sees a proper case connected with private pro- perty or interest, has just the same jurisdiction to restrain a party from petitioning against a bill in parliament as if he were bringing an action at law, or asserting any other right connected with the enjoyment of the property or interest which he claims." And in the earlier case of Ware v. The Grand Junction Water Works Company, Lord Chancellor Brougham said : " It is quite idle to represent this as an attempt to restrain by injunction the proceedings of parlia- ment." It will be freely admitted that the injunction operates directly, not upon the legislature but upon the party enjoined, and in no wise interferes with the exercise by the legislature of its rightful powers. But I cannot resist the conviction that such exercise of power, under our form of government, is an infringement of the rights of the j)eople and of their representatives. If not a direct infraction of the bill of rights and of the letter of the constitution, it is in conflict with the spirit of republican government and the structure of its in- stitutions. Every citizen has an unquestioned right to peti- tion either branch of the legislature upon any subject of legislation in which he is interested. Every legislator has a FEBRUARY TERM, 1863. 21 Story V. Jersey City and Bergen Point Plank Koad Co. right to be informed of the views and wishes of all parties interested in the enactment of a law. This right to perfect freedom of interconrse between the representative and his constituents is not founded upon any constitutional provision or bill of rights, but springs from the very structure of the government. By what authority shall this court step between the representative and his constituents, and deny to the one or the other the exercise of his political rights in their fullest freedom ? It is conceded that the legislative powers cannot be trammeled by injunction. The legislature can neither be re- strained from legislating upon any subject, nor from exercising their authority to obtain information upon any matter of legis- lation. And if the legislature cannot be restrained from asking the information, can the citizen be restrained from giving it? Are the rights of the representative more sacred than those of his constituents ? It appears to me that the granting of such injunction is an unauthorized abridgment of the political rights of the party enjoined. The proper office of courts of justice is to maintain and enforce the legal and equitable rights of parties litigant, as established by existing law. It is no part of their office to determine in advance what laws ought or ought not to be enacted, or to interfere, directly or indirectly, with the course of legislation. The complainant's bill is framed u{)on the theory that the charter of an incorporated company cannot be altered in any essential particular, even with the consent of the corporation, without the consent, express or implied, of every stockholder; and that such alteration would be unconstitutional, as impair- ing the obligation of the contract entered into between the state and such stockholder. If this doctrine should be ad- mitted in its fullest extent, it is not perceived that it can affect the result of the present application. AVhen the charter of the Jersey City and Bergen Point Plank Road Company, of which the complainant claims to be a stockholder, was granted, it was provided by a general law of the state that the charter of every corporation granted by the legislature should be subject to alteration, suspension 22 CASES IN CHANCERY. Story V. Jersey City and Bergen Point Plank Koad Co. and repeal, in the discretion of the legislature. The legisla- ture, therefore, in granting the charter to the i)lauk road company, must be deemed to have reserved to themselves the right of altering, suspending, or repealing the charter, whenever, in their discretion, the public good miglit require it, as fully as if the reservation were inserted in the charter. And all the contracts, express or implied, resulting from the act of incorporation and its acceptance by the stockholders, must be deemed to have been entered into by both parties, subject to that reservation. Whatever limitation may exist to the reserved right of the legislature to alter or repeal the contract, I am clear that the reservation is in itself valid, and that this court ought not, upon a motion for a prelimi- nary injunction, to pronounce any alteration, suspension, or repeal of the charter to be unconstitutional or illegal. Much less should this court make such declaratiou in advance of any actual legislation. The plank road company were incorporated with power to construct a plank road upon an ancient public highway and with the franchise of taking tolls thereon. No limit is fixed for the duration of the charter. The legislature have since incorporated a company to construct a horse railroad between the same termini. They have authorized the railroad com- pany to purchase the plank road. They have also authorized the plank road company to lay rails upon their track. They have, however, provided that if the plank road is purchased by the railroad company, the plank road shall be continued ; and if the rails are laid thereon by the plank road company, they shall be so laid as not to hinder or obstruct public travel. It must be presumed that the public convenience de- manded the increased facility to be aflPorded by the construc- tion of the railroad. Of that the legislature were the peculiar exclusive judges. • The complainant, a stockholder in the plank road company, now asks that the company shall be restrained from making any application to the legislature to abandon or change any part of their route, for this, it is insisted, would be fundamen- FEBRUARY TERM, 1863. 23 Burlew v. Hillman. tally changing the objects of the company without his cou- eent ; and that the railroad company, its officers, stockholders and promoters, shall bo enjoined from aiding and abetting such application. If this claim have any foundation in law or in equity, which is by no means admitted, and if it be recognized, it would place it in the power of a single stock- holder, for his own pecuniary interest, against the wish of every other stockholder and the convenience of the whole community interested in the line of travel, to prevent even a petition for a change. The injunction is denied without costs. Cited in State v. Comm'r of B. R. Tdxation, 8 Vr. 237. Phebe Ann Buelew vs. John F. Hillman, and others. 1. It is no defence to a suit brought by a wife after the deatli of lier husband, to foreclose a mortgage made to her jointly witli her husband for the benefit of the wife, that the bond was given to the husband alone, and to his heirs. She is the surviving mortgagee, and has a clear right to en- force her remedy under the mortgage. 2. A party beneficially interested in a contract may maintain a suit in equity in his own name to enforce such rights, tlioiigh he be not a party to the instrument creating tliein. 3. Where there are several parties in interest, and tlie mortgagor is in doubt as to the rights of tiie complainant under a bill to foreclose, lie is entitled to have tlie question judicially determined for his own security, but not at the cost of the mortgagee. 4. The general rule is that the mortgagee is entitled to costs, both on bills to redeem and to foreclose. Bedle, for complainant. Schenck, for defendant. The Chancellor, The bill is filed to foreclose a mort- gage, given by John F. Hillman and wife to Phebe Ann Burlew and Richard Burlaw, to secure the payment of the 24 CASES IN CHANCERY. Biirlew V. Hillman. sum of one thousand dollars, with interest, agreeably to the condition of an obligation of even date, given by Hillman to Richard Burlew, liis heirs and assigns. The condition of the bond is, that the obligor shall [)ay to the said Piiebe Ann Burlew, during her natural life, annually, on the first day of April, the interest of one thousand dollars, and such further sum of the principal, not exceeding twenty-five dollars, as may be necessary for her support and maintenance; and if the said Richard shall survive tiie said Pliebe Ann, the obligor shall pay him the interest during his natural life, and on the decease of the said Richard and Phebe Ann, shall pay the j)rincipal sum of one thousand dollars, or so much thereof as remains unpaid, to the heirs of the said Richard and Piiebe Ann Burlew. If there be a default in the payment of inter- est, and the same remain unpaid for six months after becom- ing due, the whole sum to become due and payable on demand, and the said sum reinvested as above specified, by consent of the parties interested. The bill prays that the complainant may receive the arrears of interest, with twenty-five dollars per annum for her sup- port and maintenance, and that the balance of principal re- maining unpaid may be decreed to be paid and reinvested for the purj)oses of the trust. The mortgagees, Richard Burlew and Phebe Ann Burlew, were husband and wife. Articles of separation were entered into between them, cotemporaneously with the date of the bond and mortgage, which were given, as appears by the recital of the mortgage, for the purpose of carrying the pro- visions of the articles into effect. The husband died in No- vember, 18G0. The parties continued to live separate during the life of the husband ; the wife receiving, for several years, the interest and twenty-five dollars of the principal, annually. Both principal and interest were in arrear at the time of filing the bill, on the twelfth of June, 1861. The question, how far a court of equity will interfere to enforce the provisions of a voluntary separation between husband and wife, is not raised, nor is the validity of the FEBRUARY TERM, 1863. 25 Burlew v. liillman. deed of separation drawn in question. The parties, it is admitted, lived separately from the date of the bond and mortgage, until the death of the husband ; the wife receiving the sum of principal and interest stipulated to be paid by the husband, in lieu of her support and maintenance and in full discharge thereof. Enforcing compliance with the terms and conditions of the bond against the obligor at this time can affect no marital right or obligation, as between the husband and wife. As against the defendant, the equitable right of the wife is clear. It is objected that the suit cannot be maintained in the uame of the wife, inasmuch as the bond was given to the husband alone and to his heirs. This objection would be fatal to an action at law brought by the wife upon the bond. For the right of action at law is vested solely in the ])arty having the strict legal title and interest, in exclusion of the equitable claim. 1 Chittij's PL {eel 1837) 2. But the complainant is seeking to enforce not a legal, but an equitable right. She has the entire beneficial interest in the bund, so far as the objects of this suit are involved. She is moreover the surviving mortgagee ; the mortgage having been executed to her jointly with her husband, and she has therefore a clear right to enforce her remedy under the mortgage. Independently of this circumstance, a party bene- ficially interested in a contract may maintain a suit in equity in his own name to enforce such rights. Equity recognizes the right of a wife to a separate estate, and will protect and enforce that right, even as against the husband, without the interposition of trustees. If the hus- band is living, and the legal right vested in him, equity will treat him as a trustee for the wife. The trust in favor of the wife will attach uj)on him, and be enforced as if he were a mere stranger. 2 iSYory's Eq. Jur., § 1378, 1380. But the husband being dead, the wife being the surviving mortgagee, and the beneficial interest exclusively in her, the case is clear of all difficulty upon t?liis point. The material question in the cause is, whether the com- 26 CASES IN CHANCERY. Burlew v. Hillman. plaiiiant is entitled to recover more than the arrears of inter- est due upon the mortgage. It is insisted first, that no part of the principal is necessary f(jr her support and maintenance, in which event only, by the terms of the contract, it is to be paid to her. By the terms of the contract the comjilainant is to receive, in addi- tion to the interest, so much of the principal, not exceeding" twenty-five dollars in any one year, as may be necessary for her support and maintenance. It is urged that as the com- plainant is furnished a home by her son and is not incaj)able of labor, no part of the principal is necessary for her support. It is difficult to determine what was understood and intended by the phrase, " necessary for her support and maintenance." It would seem, that it must have been intended by the parties that the wife should contribute to her support by her own labor, for the whole provision is not sufficient to furnish her the bare necessaries of life. The lowest rate at which she could procure board in the vicinity where she lives, is shown to be two dollars per week, and the cost of clothing suitable to her station in life, is shown to be fifty dollars per annum. Nor on the other hand could it have been in- tended merely to keep the wife from absolute want. It must have been designed to furnish the wife a comfortable sub- sistence, in connection with the earnings of such labor of her own as might be suitable to her age and state of health. In this view of the case, the evidence shows that she is enti- tled to receive the full extent of the allowance provided by the contract. This conclusion is fully justified by the fact that twenty-five dollars of tiie princii)al was paid to the wife by the defendant while the husband was alive, for three years after the execution of the contract. The defendant is a son-in-law of Burlew, was on terms of familiar intercourse with him after the separation, lived in the vicinity of the parties, and must have known the views of the husband and the wants of the wife. No change in the situation or circum- stances of the wife is shown, rendering; the provision less ne- cessary for her support now, than it was immediately after FEBRUARY TERM, 1863. 27 Burlew v. Hillman. the contract was made. The conduct of the parties has gone far to settle the true interpretation of the contract. The fiict that a son of the complainant temporarily contrib- utes to her support by furnisiiing her a home, cannot affect her legal rights under the cotitract. It is further urged that the complainant agreed to accept interest on the whole principal of the bond, sixty dollars per annum, in full of her claim, acknowledging that the twenty- five dollars of principal was not necessary for her support. This agreement is not satisfactorily proved. No considera- tion is pretended to have been paid for it. The complainant and her son, while they admit that this arrangement was proposed, both deny that any contract to that effect was con- summated. Tiie complainant is entitled to recover the arrears of interest, with the annual instalments of principal remain- ing unj)aid. There is a clear forfeiture of the bond. No one of the in- stalments of interest, except the first, has been [)aid within six months after becoming due. By the terms of tiie contract the whole ])rincipal of the bond has become due, and the complainant is entitled to have the same collected and re- invested under the direction of the court, or by consent of the parties interested. There is no necessity of a reference to a master. The amount due is a mere matter of computation. If the parties cannot agree as to the amount, the com])utation may be at once made and the amount ascertained by a master. It is obviously for the interest of all parties that the in- vestment should not be unnecessarily changed ; and if chang- ed, that it should be by consent of those interested, and if practicable, without the aid and direction of the court. The complainant is entitled to costs. If the mortgasror was in doubt as to the rights of the complainant, he was en- titled to have the question judicially determined for his own security, but not at the cost of the mortgagee. Nor will the refusal of tiie heirs of the husband to siixn a written assent 28 CASES IN CHANCERY. Freeman v. Scofield. to the payment of the principal, affect the question. The rights of tiie mortgagee cannot be prejudiced by such refusal. The general rule is that the mortgagee is entitled to costs, botli on bills to redeem and to foreclose. See cases collected in note to Cranstoion v. Johnston, 1 Hovenden's Sap. to Vesey Jr. 267. There is nothing in the case to exempt the defendant from the operation of the general rule. Ppiebe Freeman vs-. James J. Scofield and others. 1. Where a mortgage is given or assigned for the payment of a debt due to two or more jointly, on a bill to foreclose filed by the surviving obligee, the executor of a deceased co-obligee need not necessarily be joined as a complainant. 2. When there are conflicting claims between the parties In interest in the mortgage debt, the surviving obligee may file the bill in his own name, and make the executor of the deceased co-obligee a defendant. 3. W^hether the executor of a deceased coobligee should be joined with the surviving obligee as complainant, or be made a party defendant to the suit, is a question of form, and should be raised upon demurrer. 4. Objections to pleadings which involve no substantial interest, are not allowed upon the final hearing. 2\ Little, for complainant. Chandler, for defendants. Tpie Chancellor. The bill is filed to foreclose a mort- gage given by the defendant to Ira C. Whitehead, executor, and by him assigned to Phebe Freeman and Mary Ann Freeman. Mary Aim Freeman died testate before the filing of the bill. Phebe Freeman, the surviving assignee, filed the bill in her own name, claiming to be entitled to one half of the mortgage debt in her own right, and to the balance as trustee for the estate of the deceased assignee. The defend- FEBRUARY TERM, 1863. 29 Freeman v. Scofield. ant, by his answer, admits all the material charges of the bill, but insists that the executor of the deceased assignee should have been joined in the bill as a complainant. The executor is made a defendant and a decree pro confesso is taken against him. The assignment, as stated in the bill, purports to have been made to the assignees jointly. They had a joint interest iu the mortgage debt, and occupy the same position as to their rights that they would have done had the boud and mortgage been made to them jointly. The rule is well settled that when one of two or more obligees or others, having a joint legal interest in the contract, dies, the action at law must be brought in the name of the survivor, and the executor of the deceased obligee must not be joined. Nor can he sue separately, for the entire legal in- terest survives. The executor must resort to a court of equity to obtain from the survivor the testator's share of the sum recovered. 1 Chittt/'s PL {ed. 1837) 21 ; Broom on Parties, 8 C; Andersofi v. Martindale, 1 East 497. The survivor is entitled to the possession of the joint securi- ties, and her receipt will be a valid discharge for the debt. Nor will a court of equity, where there are several joint securities in the hands of the survivor, appoint a receiver to collect and divide the joint fund in the proportions to which the parties are entitled, uor compel an apportionment of the securities between them. Penn v. Btdler, 4 Dall. 354 ; Wal- lace v. Fitzsimmons, 1 Dall. 250. And the principle applies whether the beneficial interest of the joint obligees in the fund be equal or unequal, and even though the entire beneficial interest was in the deceased obligee. The legitimate inference from the statements of the bill, which are not denied, is, that the right of possession and legal ownership of the securities is in the complainant, and that the beneficial interest in one half of the fund is also in her. She holds one moiety of the fund in her own right, Vol. I. B 30 CASES IX CHANCERY. and the other moiety as trustee for tlie estate of the deceased co-obligee. It is one entire debt, and must be recovered either at law or in equity by one suit, and not in separate portions. In cases of joint claims or obligations, all persons having a com- munity of interest in the claims or liabilities and who may be affected by the decree, are to be made parties. Story^s Eq. P/., §159, §169. So also both the trustees and cesttii que trust, as a general rule, are necessary parties. Story^s Eq. PL, § 193, § 207. The object of the rule is to have all the parties in interest before the court, that the decree may be final and conclusive upon them, and afford adequate protection to the party re- quired to perform the decree. Ordinarily all parties interested in obtaining a decree are joined as complainants, but not necessarily so. The cestui que trust may refuse to join, or have some interest adverse to the claim of the complainant. Jn the present case the exec- utor might have alleged that the testator was beneiicialiy interested in the securities to a larger amount than is ad- mitted by the complainant. Under these or similar circum- stances, the surviving obligee must tile the bill in her own name, making the executor of the deceased co-obligee a de- fendant. If any such reason were suggested by the bill, the bill would be free from exception. It would perhaps have been more in accordance with the practice of the court, had the survivor and the executor of the deceased obligee united as complainants in the suit. But it is a mei'c question of practice, and the course adopted affect", prejudicially, no substantial interest. The necessary parties are all before the court. A valid decree may be made which will effectually protect the defendant and be final and con- clusive upon all parties interested. If there be anything whatever in the objection, it is purely a question of form, and shouUl have been raised Uj)on a de- murrer. Objections to pleadings which involve no substantial interest, are not allowed upon a final hearing. The complainant is entitled to a decree. Cited in Trade Savings Bank v. Freene, 11 C. E. Or. 455. FEBRUARY TERM, 1863. 31 Johnson v. Garrett. George R. Johnson and William M. Bodine vs. Charles S. Garrett and others. 1. A sale by anditors in attachment of several tracts of land, that ini;t,}vt conveniently and reasonably have been sold separately, and where a sale of part would have been sufficient to satisfy the debts of the plaintiff and the applying creditors, is a clear breach of trust, and will be set aside as void. 2. A bona fide purchaser of land, subject to the lien of an attachment, is entitled to relief against an illegal or inequitable sale by the auditors. 3. Where a judicial sale is set aside on the ground of gross negligence or abuse of trust, the officer making such sale, as well as the purchaser acting in collusion with him, will be condemned in costs. But where there is no charge of actual fraud or collusion, neither the officer nor purchaser will be condemned in costs. On final hearing. Ilitgg, for complainant ex parte. The Chancellor. The bill is filed to set aside a sale of real estate made by anditors in attachment. The writ under which the land was seized and sold, was issued at the suit of Charles S. Garrett against Joseph O. Johnson, under whom the complainants sul)scquently a(;qnircd title. The land con- sists of four lots on jNIarket street, in the city of Camden, each twenty feet front by one hundred and eight feet deep, making one plot of eighty by one hundred and eight feet. Each lot was worth $1000. They coidd conveniently and reasonably have been sold separately. The whole amount of the judgment for which they were sold was less than three hundred dollars. The four lots were ofFereress provisions of a statute, the Chancellor adds : "The rule must be the same without any positive law for the purpose. It rests on principles of obvious policy and universal justice." FEBRUARY TERM, 1863. 33 Johnson v. Garrett. The same principle is sanctioned in Woods v. Monell, 1 Johns. Ch. R. 506, and in the cases tiiere cited. Doubtless a discretion is vested by law in the officer charged with the sale of real estate, either by authority of a statute or under the direction of a judicial tribunal, touching the quantity of land necessary to be sold, and whether the sale shall be in bulk or in parcels. And where this discretion has been exercised by the officer, courts are reluctant to interfere with his action, except in a clear case of excess of authority, or prejudice to the rights of the {)arties interested. The objection lies not against the exercise, but the abuse of the discretion. The complainants appear to me to stand upon high ground and to have strong claims to equitable relief. They are the real owners of the land. They purchased and paid for it in good faith, believing it to be unencumbered, and having no knowledge or suspicion of the existence of the attachment. The defendant in attachment had no interest in the land, and, so far 33 appears, no substantial motive to protect the interests of his alienees. The complainants are stripped of their title by virtue of legal proceedings against a third party, without any wilful default or neglect upon their part. They had no knowledge of the existence of the claim against the property, and consequently no opportunity of satisfying it. They had no notice of the proceedings to effect a sale, and no opportunity of protecting tiieir rights. In cases of ordinary sales under judicial process, some one is usually present, either on behalf of the plaintiff or the defendant, interested in seeing that the property is sold fairly and for something like its market price. But under sales by auditors in attachment, where the claim is small and the property levied upon is valuable, there is no such protection. The sale is often made, as was the fact in the case now under consideration, where no one is present or has an opportunif^y of being present, who is in- terested in enhancing the value of the property or protecting the rights of the real owners. Under such circumstances it is peculiarly important that all excess of authority and all 84 CASES IN CHANCERY. Jolinson V. Garrett. abuse of discretion on the part of the auditors should be sedulously guarded against. There is no defence to the charges of the bill. No answer has been filed, either l)y the auditors or by the purchaser. The bill is taken as confessed. All the inatei'ial facts are clearly established in evidence. I entertain no doubt as to the right or the duty of the court to interfere for the protec- tion of the complainants. In Tlernan v. Wilson, 6 Johns. Ch. B. 411, where a sale was made under circumstances not dissimilar in several of its features from the sale now in question, the court set aside the sale and ordered the jmrchaser who had received his deed, to deliver it uj) to be cancelUil, although he was a stranger to the proceeding, and as against him there was no charge of fraud. Tlie sheriff also, on the ground of gross negligence and abuse of trust on his part, was condemned in the costs occasioned by his defending the suit, although there was no charge of actual corruption against him. There is no charge in the bill, or intin)ation in the evidence, of any collusion between the auditors and the plaintiff in at- tachment who becan)e the purchaser at the sale ; and although the conduct of the purchaser since the sale, in refusing, upon a tender of full satisfaction, to release a claim most inequita- ble as against the complainants, appears to have been unrea- sonable antl oppressive, I find no ground upon which either of the defendants can be condemned in costs. I shall accordingly decree that the sale be set aside as void, but without costs, with liberty to the complainants, in case the plaintiff or other creditors in attachment, upon being paid or tendered the amount due, refuse to acknowledge satisfaction of their claims, to ap[>ly to this court for a per- petual injunction or such other relief as they may be advised. FEBRUARY TERM, 1863. 35 Keener v. Atwood. John Keeney vs. George Atwood aud others. By the act of 1854, Nix. Dig. 851, § G4, when the mortgagee resides in a different township from that in which the mortgaged premises lie, the tax on the money secured by the mortgage is to be assessed against and paid by the mortgagor in the township where the lands lie, and the receipt of the collector therefor is made a legal payment for so much of the intei-est of the mortgage, and is to be allowed and deducted thei'efrora by the mort- gagee. Ildd — 1. The payment of the tax and the receipt of the collector is a legal payment of so much interest, not of principal ; a payment of the accrued and accruing interest, not of interest to grow due at some fiiture time. 2. When a mortgagor, entitled to have the tax assessed against and paid by him deducted from the interest, has paid the interest in full as it became due, without deducting the tax, he cannot afterwards claim any deduction therefor from the arrears of interest. J. W. Taylor, for complainant. > H. S. Little, for Atwood aud wife. The Chancellor. The complainant's bill is filed to fore- close a mortgage, given to secure the payment of a bond for $750, bearing date on the tenth of April, 1852, with interest. The defendants by their answer claim that interest has been paid up to the first of April, 1856. They admit that the principal of the bond is due, together with interest from that date, less the suras paid by the defendants for the taxes assessed on the prineijnil of the debt, from tiie date of the mortgage, up to and including the year 1861. The taxes 60 paid, the defendants claim, are a lawful deduction to be made from the interest due and accrued upon the mortgage debt. The only question submitted for decision is, whether upon the facts disclosed by the bill and answer, the defendants are entitled to have such deduction made. It is admitted that the interest has been paid for four years after the date of the bond. The defendants clearly cannot, in an action at 36 CASES IN CHANCERY. Keeney v. Atwood. law, recover back any part of the interest tlius voluntarily paid with a full knowledge of the facts. JSIoney paid volun- tarily cannot be recovered back, although it was not legally or equitably due. Volenti non Jit ivjuria. Upon this principle, it was held that an occupier of lands, who during a course of years paid the property tax to the collector under the statute, 46 Geo. 3, cJtap. 65, and likewise the full rent, as it became due to the landlord, without claiming, as he might have done, any deduction on account of the tax, could not maintain an action against the landlord for any part of the tax so paid. So where a tenant pays •property tax assessed on the j)remises, and omits to deduct it in the next [)ayment of rent, he cannot afterwards recover the amount as money paid to the use of the landlord. Denhy v. Moore, 1 Barn. & Aid. 123; Stubbs v. Parsons, 3 Ibid. 516 ; Broom^s Legal Maxims, {oth ed.) 201, 204. So if the land tax and paving rates are not deducted from the rent of the current year, they cannot be deducted, or the amount of them be recovered back from the landlord, in any subsequent year. Andrew v. Hancock, 1 Brod. & Bing. 37. In Stubbs V. Parso7is, Bayley, J., said : the true construc- tion of the act is, that a payment of the land tax can only be deducted out of the rent which has then accrued or is then accruing due, for the law considers the ])ayment of the land tax as a payment of so much of the rent then due or grow- ing due to the landlord ; and if he afterwards pays the rent in full, he cannot at a subsequent time deduct the overpay- ment from the rent. The act of 1854, Nix. Dig. 851, § 64, should receive a simi- lar construction. If the holder of the mortgage resides iix •■the township or county where the mortgaged premises lie, ;the tax is assessed upon him. If the mortgagee resides else- where, the tax on the money secured by the mortgage is to foe assessed against and paid by the mortgagor in the town- ;ship where the lands lie. And it is enacted, that ^^ the re- eeipt of the collector shall be a legal paymerd for so much of the interest of said mortgage, and be allowed and deducted FEBRUARY TERM, 1863. 37 Keeney v. Atwood. therefrom by the onorlgagee." The payment of tlie tax and the receipt of the collector is a legal payment for so much of the interest of the mortgage, and is to be deducted there- from. It operates only as a payment of the bitcrest, not of the principal. It must be intended to be a payment of the ac- crued and accruing interest, not of interest to grow due ia future. It is not a set-off to be made against a demand that may afterwards arise, but a payment of a subsisting or accruing debt. Tliis is the natural interpretation of the lan- guage, and it is in accordance with the sound policy of the act. The tax is upon the propeity of the obligor. The bur- den is upon him. He is entitled not only to be informed of its existence and amount, but to pay it year by year as it is assessed. Not only serious inconvenience but great injustice would be produced by suflPering the mortgagor to pay the interest on the bond for a series of years without claiming any deduction for taxes, and then to claim the whole amount in a single year. The burden would be still greater and the injustice more aj)parent, if the claim is permitted to be made after the death of the mortgagor, or an assignment of the mortgage. Its operation then would be to compel one party to pay the tax assessed upon the property of another, and the claim if permitted, may be set up after any lapse of time however great. No statute of limitations can run against it, for the statute makes it, not a set-off or legal demand, but a payment of the interest j>ro Utnto. • But there is another and equally decisive oljection in this case to the allowance of the taxes as a payment of interest. There is no averment in the answer, that when the taxes were assessed, the mortgagee did not reside in the township or county where the mortgaged premises lie. For all that a[)pears, the mortgagee may have resided in the county where the mortgaged premises lie, or he may have resided out of the state. In either event, the defendants are not en- titled to the deduction. If the holder of the mortgage resided in the township where the mortgaged premises lie, the tax should have been assessed against him, and not against the 38 CASES IN CHANCERY. Micliener v. Lloyd. mortgagor. If he lived out of the state, he was not h'able to be assessed, nor is the mortgagor entitled to any dednction on that account. The act of 1854 does not subject to taxa- tion, the bonds, mortgages, and other choses in action of persons who are not inhabitants of this state. State v. Branin, 3 Zah. 484 ; Dolman v. Cook, 1 McCarter 56. The facts stated in the answer should show a valid defence to the claim. Tiiere must be a reference to a master, with instructions to disallow the claim for deduction from the arrears of in- terest on account of taxes. William P. Michener, William House and Joshua Thompson, Commissioners, &c., vs. Stacy Lloyd and others. Land owned by two tenants in common was ordered to be sold b}"^ com- missioners jippointed to make partition thereof. At the first sale the land was struck off to one of the tenants in common, who refused to accept the deed or pay the purchase money. The premises were tiiereupon again exposed to sale, and struck ofi' for a less sum. By the terms of the first 6ale, if the purchaser refused to comply with tlie conditions, the property was to be resold, and the purchaser held liable for the loss. The deficiency on the second sale was §1200. On the distribution of the proceeds of sale, the co-tenant claimed, as against the purchaser at the first sale, an allow- ance for the loss sustained by reason of his non-compliance with the con- ditions. The claim being disputed, and an order of distribution having been made, thecommissioners refused to pay over the money in compliance •with the terms of the order, and filed a bill of interpleader asking to have the right determined. There was some dispute as to the terms of the order for distribution. Held — 1. The only legal evidence of the terms of the order of the court, is the record or a duly certified copy thereof. Evidence of what passed at the time of making it, or of the precise terms of the order itself as directed by the court, is incompetent. 2. The deficiency incurred by a resale of the property, can only be re- covered by an action brought by the commissioners, and when recovered, be distributed by order of the court, as part of the money arising from the sale of the laud. FEBRUARY TERM, 1863. 39 ^licliener v. Lloyd. 3. Tlie deficiency can constitute no legal set-off against the claims of the defaulting co-tenant for his share of the proceeds of sale under the order for distribution. 4. The case furnishes no ground for a bill of interpleader by the com- raissiohers. S. A. Allen, for complainants. A. Sinnickson, for Lloyd. The Chancellor. The complainants are conrmissioners, appointed by a judge of the Court of Common Pleas of Salem county, to make partition of certain real estate owned by Stacy Lloyd and Thomas Mulford as tenants in common. The commissioners having reported that partition of the land could not be made, they were ordered to sell the same under the provisions of the statute. At the first sale, Lloyd, one of the tenants in common of the land, became the |)urchaser for ^4030. Lloyd having failed to comj)ly with tlie condi- tions of sale, and refusing to aceej)t a deed or pay the pur- chase money, the premises were again exposed to sale and were struck off to Mulford, the other tenant in common, for $2830. The sale having been confirmed, lie paid the ]nirchase money and received title. One halt" of the net proceeds of the sale were ordered by the court to be paid to Mulford, one of the owners, and after satisfying, out of the other half of the net proceeds, certain encumbrances upon the share of Lloyd in the said land, the court directed the residue thereof, being $660.60, to be paid to Lloyd, the other tenant in common. One of the terms of the first sale was, that if the purchaser refused to comply with the conditions and pay the purchase money, the property would be resold, and if it sold for less than at the first sale, the purchaser would be held liable for the difference. The deficiency on the second sale was $1200. Mulford claims, as against his co-tenant who became the pur- 40 CASES IN CHANCERY. Michener v. Lloyd. chaser, that he is entitled to receive one half of this sum. Notice of this chiiiii having been given to the coniinissioners, they refused to })ay over the money to Lh)yd in compliance with the order of the Court of Common Pleas, and filed their bill of interpleader in this court, asking to have the right determined. The order of the Court of Common Pleas expressly directs the commissioners to pay ov^er the net proceeds of the sale of Lloyd's share of the land, after satisfying the legal encum- brances thereon, to Lloyd. There is no allegation of fraud in obtaining the order. Some question is raised and evi- dence offered, as to what passed at the time of making the order, and as to the precise terms of the order itself as directed by the court. But this evidence is clearly incom- petent. The only legal evidence of what the order actually made was, is the record or a duly certified copy thereof. The court will not go behind the record to ascertain what was said at the time of making the order. If the entry iu the minutes was erroneous, the proj)er remedy would have been by application to the court in which it was made. But it is evident that there was no mistake in the entry of the order. It is, in flict, the only order that could properly have been made. The statute requires that the moneys arising from the sale shall be ordered by the court to be paid by the commissioners to the parties interested in the real estate so sold, in proportion to their respective rights in the same. Nix. Dig. 605, § 21. The court has no alternative and no discretion on the subject. The encumbrances on the respec- tive shares are of course to be satisfied. The value of each share of the property, over and above the encumbrances tlereon, alone represents the right of the respecitive owners. It was the dutv of the commissioners to have paid the money in compliance with the order of the court. The order would have afforded them full protection. The rights of those in- terested were settled by the determination of the court. The complainants are entitled to no relief in equity. If the first purchaser was liable for the amount of the deficiency FEBRUARY TERM, 1863. 41 Miclienor v Lloyd. which occured upon the resale, it was the province of the commissioners to have enforced its payment, by suit or other- wise, and to have carried the money thus recovered to the account of sales. It would thus have represented a part of the moneys arising from the sale of the real estate, and been subject to distribution among the owners. But what rigiit have the commissioners now to recover tiiis money? The net proceeds of the sale have been ascertained and distributed, under the order of the court. The duty of tlie commissioners is ended. They are fundi officio, and if the money could be recovered by them, by what authority is it to be drawn out of their hands? AVhat claim has the owner of the land to it? He cannot claim it as a part of the moneys arising from the sale of the land. That has already been ascertained and paid to him under the order of the court. If recovered at all, it must be as damages sustained by the breach of the contract contained in the conditions of sale. Tiiat contract was v/ith the commissioners, and they alone would have the right to enforce it. And the remedy ui)on that contract would pro})erly not be in this court, but in a court of law. Until the right to recover upon that contract is established, it is not perceived that either the commissioners or the land owners have any equity which would enable them to come into this court for relief. But if there be a subsisting equity as between Mulford and Lloyd, upon which the former is entitled to relief, it is clear that there is no ground n{)on which these complainants can file a bill of interpleader; because Mulford has no legal or equitable claim as against them for the fund. It is in their hands as the trustees of Lloyd. They are required by law and are directed by the order of the court, to j)ay it to him. No lien or claim upon the fund has been created or acquired since the order of the court, which can raise any doubt as to the rights of the parties. No attachment or exe- cution has been served. It is simply an attempt of Mulford to enforce a supposed equitable or legal demand against Lloyd, by preventing the trustees from paying over the 42 CASES IN CHANCERY. Atwatcr v. Walker. money to the rightful owner. This is not the office of a bill of interpleader. 3IUforcVs Eq. PL 142; 3 DanielVs Ch. Pr. 1759; Story's Eq. PL, § 292 ; 2 Story's Eq., § 816, 817. The bill is not filed for the protection of the ci)n)[)lainants against the adverse claims of the defendants. They are, as the evidence shows, indemnified by Mirlford, one of the con- testing claimants to the fund. The bill is obviously filed, if not at his instance, yet in his interest and for his benefit. riis answer is a mere echo to the charij-es and allegations ol' the bill. The bill must be dismissed, with costs. ClTKD in Townsend v. Simon, 9 V>\ 241. James C. Atwateu vs. Frederick W. Walkep., 1. The validity of a contract must depend virion the laws of the state where tlie contract was made. 2. Where the answer alleges generally, that the contract upon which the suit is brought is usurious, without any more specific allegation, it must be intended that the defence is that the contract is in viol i( ion of the stat- utes of this slate, and to that objection alone ihe defence must be limited. Mills, for comi)laInant. If mortgage is usurious, it is so by law of New York. The usury depends on the lex loci contractus. It was incumbent on the defendant to show fact as well by pleadings as proofs. Campion v. Kille, 1 McCarter 229. If the security was once valid, it cannot be invalidated. Donnington v. Meeker, 3 Stockt. ZQ2', Varick's E.v'r v. Crane, 3 Green's Ch. R. 128; 19 Johns. R. 294; 2 lbiresentative of the deceased plaintiff, or other person becoming interested by his death, will not cause himself to be made complainant in the room of the de- ceased plaintiff; or in case of the death of the defendant, if the plaintiff will not make the legal representative of the de- ceased defendant, or other person who may have become in- terested by his death, a party to the suit, and cause the suit to stand revived within such time as the court shall limit and appoint for that purpose, the suit shall be considered at an end, and shall not be revived in the manner provided by the act. Nix. Dig. 3, § 8. In either event, the suit will not be revived at the instance of the defendant, or of his representatives. The rule is the same, irrespective of the statute. 2 DanieWs Ch. Pr. 954 ; 3 J6/cZ. 1700, 1701. The statute has not altered the practice except by providing a more expeditious mode of })roceeding, by substituting new parties and continuing the suit by order, instead of resorting to a bill of revivor. Adamsoyi v. Hall, 1 Turner & Riiss. 258 ; Porter v. Cox, 5 Madd. 80 ; 1 Sinitlis Ch. P/-. 514 ; 2 DanidCs Ch. Pr. 954; 3 Ibid. 1701. Neither under the statute, nor by the practice irrespective of the statute, are costs given if the complainant, or his rep- resentative, elect not to proceed. But where a complainant or defendant dies after the final argument, but before decree, the court may order the decree to be signed as of a date prior to the death of the party. 2 Folder's Exchcq. Prac. 169 ; Davies v. Davies, 9 Vesey 461 ; Campbell v. Mesier, 4 Johns. Ch. R. 342 ; Vroom v. Ditmas^ 112 CASES IN CHANCERY. Davison's ex'rs v. Johnson. 5 Paige 528 ; 2 DanicWs Ch. Pr. 1219, and note 1 ; 2 Had. Ch. Pr. 529 {ed. 1822). And although the I'ule is strict that before decree a suit cannot be revived at the instance of* the defendant, it is other- wise after a decree ; for the riglits of the parties are then ascertained. Plaintiffs and defendants are equally entitled to the benefit of the decree, and either has a right to revive it. 3 DanieWs Ch. Pr. 1702 ; Stores Eq. PI. § 372 ; Peer v. Cooheroio, 2 Bcas. 136. Whether a suit will be revived after a decree of dismissal, or for the mere purpose of recovering costs, it is unnecessary now to consider. No opinion is intended to be intimated upon the question whether this is a proper case for a revivor, even after decree. .It is clear tliat it is not a case within the provisions of the statute, and if the suit be revived, it can only be by bill of revivor. Cited in Marlatt v. Warwick & Smith, 4 C. E. G>\ 445 ; Buckman y. Decker, 12 C. E. Gr. 246. Ryke J. SuYDAM and Ephraim Williamson and Ro- SETTA, his wife, executors of Daniel Davison, deceased, vs. Henry Johnson and Sarah, his wife. 1. The mquiry when tlie cause is heard upon a plea, is substantially as if the complainant had demurred to the plea. 2. If the complainant deems the plea bad, the case goes to hearing upon l!he plea ; if good, but not true, he takes issue upon it and proceeds as ia caae of an answer. 3. The subject of inquiry is not the mere technical form of the plea, but the sufficiency of its averments to sustain the defence ; whether assuming id\. the facts properly set out in the plea to be true, it presents a valid de- fence. 4. The pendency of a former suit being pleaded in bar, the defendant may state the pendency and object of the former suit, and aver that the present suit was brought for the same matters ; or he may omit the aver- ment that the suits are for the same subject matter, provided he state facta sufficient to show that they are so. 5. A complainant cannot compel a demurrer upon the facts as stated in the bill, if they are imperfectly or inadequately stated. The defendant FEBRUARY TERM, 1863. 113 Davison's ex' is v, JohnRon. must be at liberty to plead the facts upon which he relies for his defence, in such form and with such detail as to raise the real question which he desires to present, 6. An award constitutes no valid defence to an action, unless it clearly appear that the subject matter of the suit was within the award. The facts essential to an understanding of the case are fully etated in the opinion of the Chancellor. Str^ong, for complainants, cited Story^s Eq. PL, § 660. A. V. Schench, for defendants, cited Nix. Dig. 99, § 23, 24; McEwcn v. Broadhead, 3 Stockt. 129 ; Flagg v. Bonnet, 2 StocU. 82 ; Cooper's Eq. PI. 280 ; Kyd on Aivards, ch. 8, p. 381 ; Farrington v. Chute, 1 Va-non 72. The Chancellor. To a bill for relief, the defendants pleaded an award in bar. The cause was set down for hear- ing and heard upon the plea. The argument involved both the merits of the plea and the proper subjects of inquiry under it. It was insisted for the defence that the only proper subject of inquiry is whether the plea is in proper form, and that if it is, the plea must necessarily be sustained. The question is not strictly whether the plea is in proper form, but whether in the language of the statute the plea be good ; that is, whether upon the face of the plea it presents, if true, a valid defence to tiie action. The inquiry when the cause is heard upon the plea, is substantially as if the plaintiff had demurred to the plea. Tiic question is not whether the plea is true, but whether, if true, it is a good defence. This is the obvious meaning of the statute. If the complainant deems the plea bad, the case goes to hearing upon the plea. If he conceives the plea to be good though not true, he takes issue upon it, and proceeds as in case of an answer. Nix. Dig. 99, § 24 ; Flagg v. Bonnel, 2 Stockt. 82 ; MeEwen v. Broadhead, 3 Stockt. 129. The subject of inquiry is not the mere technical form of the plea, but the sufliciencj'' of its averments to sustain the 114 CASES IN CIIAXCERY. Davison's ex'rsv. Johnson. defence : whether it is good both in form and in substance ; whether, viz. assuming all the facts properly set out in the plea to be true, it presents a valid defence. This is the real meaning of the Chancellor in the cases cited, though the language used admits of misconstruction. The extent of the inquiry must therefore depend upon the structure of the plea itself. If the pleader confine himself to a simple and direct averment of the facts essential to constitute the plea, the in- quiry is within very narrow limits. But if, instead of this he sets out facts and circumstances from which he asks the court to infer the fact necessary to sustain his plea, the in- quiry necessarily takes a wider range, and the court must determine whether the facts stated are tantamount to a di- rect averment of the fact, or serve to establish the fact essential to the validity of the plea. And if the pleader go one step further, and not only spread upon the record the facts upon which he relies to establish the validity of his plea, but the result of those facts, or the inference which the pleader draws from the facts, the court, in deciding upon the validity of the plea, must be controlled by the facts stated, and not by the averment of the plea as to the result of those facts. The defendant pleads the pendency of a former suit in bar. He may content himself with stating the pendency and object of the former suit, and averring that the present suit was brought for the same matters. The ordinary form will be found in Beanies'' Pleas 330; Eqriitij Draftsman 658 ; Curtis' Precedents 170. Or he may onut the averment that the suits are fov the same subject matter, proviiled he state facts sufficient to show that they are so. Flagg v. Bonnet, 2 Stockt. 82. The defendant in this case has spread upon his plea the substance of a former bill in this court. He has set out in full the submission and the award, and then avers that the subject of this suit is within the award. Now, whether it is or is not within the award, must obviously depend upon the facts stated upon the plea, admitting those facts to be truly FEBRUARY TERM, 1863. 115 Davison's ex'rs v. Johnson. stated. That is really the question now in controversy be- tween the parties. The difficulty in the case has grown out of its complicated character and the peculiar structure of the pleadings. The complainants set out in their bill the history of a long and involved controversy between the parties, including the award which is made the subject of the plea. It is a ground of ob- jection to the plea that it states no new matter not apparent upon the bill, and that the proper relief was by demurrer. But a complainant cannot compel a demurrer upon the facts as stated in the bill, if they are imperfectly, or inadequately stated. The defendant must be at liberty to plead the facts upon which he relies for his defence, in such form and with such fullness of detail as to raise the real question which he desires to present. The question certainly, by a different character of pleading, might have been presented more clearly and with less embarrassment. But although the plea is encumbered with matter not pertinent to the defence, I prefer to disjx)se of the plea not on any technical ground, but to decide the real question at issue between the parties. That question is whether the submission and award do in fact include the subject matter of this suit. The controversy grew out of tiie settlement of the estate of Daniel Davison. The testator died in 1855, leaving, among other children and heirs-at-law, three tiaughters ; Rosetta, who has since intermarritd with EphraiiA William- son, Elizabeth, the wife of Ryke J. Suydani, and Sarah, the wife of Henry Johnson, who were also devisees under his will. He appointed his unmarried daughter Rosetta, and his sons-in-law, Suydani and Johnson, his exec/.ors, who proved the will and took upon themselves the b'/rden of its execution. Sarah Johnson had previously been married to J'Toah Ap- plegate, who was deceased, leaving two childrer/^ Daniel and Elijah ; the latter being a minor. His estate, a'xior.nting to $1600, was in the hands of the testator, Daniel 'Oavljon. Of this sum Sarah Johnson, as widow, was entitle( Co ^/ie-third. 116 CASES IN CHANCERY. Davison's ex'rs v. Johnson. and her two cliildren to the reiuaining two-thirds. She re- leased her interest in favor of her children, who thereupon became creditors of the estate of the testator in the sum of §800 each. The real estate was sold by his executors. Daniel Applegate, one of Sarah Johnson's sons, became the pur- chaser. His sliare was deducted from the purchase money of the estate. Tlie share of Elijah was secured by a mort- gage on the farm, given to Sarah Johnson as guardian of her son Elijah. She was not in fact the guardian of her son. The bill alleges that the arrangement was made with the consent and approbation of her husband, and upon her pro- raise to take out letters of guartlianship for her son. The money was lost, the mortgage proving worthless. After the minor came of age, he made a will giving his whole estate, real and personal, to his mother, and appointing his father executor. The executor having renounced, an administra- tor with the will annexed was appointed. A suit at law was brought by him to recover the §800 due from the estate of the testator, Daniel Davison. The executors having set- tled their accounts, the suit was brought against the devi- sees and heirs-at-law. A bill in equity was filed, among other things, for an injunction to restrain that suit. Pend- ing these suits the submission and award in question were made. The submission includes three points: 1. Whether the administrator of Elijah Applegate had any claim against the devisees.of Daniel Davison for moneys re- ceived by him fi'om the estate of Noah Applegate. 2. Whether Johnson and wife had any lawful demand in right of the wife against said devisees, for moneys received by Daniel Davison frotu the estate of Noah Applegate. 3. Whether Johnson and wife had any lawful demand in iiight of the wife against Williamson and wife and Ann C. Vanderveer, for interest upon a bond and mortgage given ,by Daniel D. Applegate. There is nothing in the submission which can include the -subject matter of this suit. FEBRUARY TERM, 1863. 117 Bedford v. Newark Macliine Company. The question Involved in it cduKI not, under the terras of the subtnission, have been submitted to, or decided by the arbitrators. If there is anything in the language of the award which can by possibility bear a broader interpretation, it should be construed in reference to the power conferred. The administrator of Elijah Ap[)legato had a clear right of recov- ery which could not be alFected by any real or supposed equity between Sarah Johnson and these complainants'. The facts stated in the plea constitute no bar to the suit. Nothing could be gained by a reference to a master. The ques- tion must be decided upon the facts now before the court. An exception to the master's report, if made by either party, would present the same question again for decision here. The plea is overruled. Simeon Bedford vs. The Newark Machine Company. 1. The only criterion of insolvency, furnished by " the act to prevent frauds by incorporated compaiucs," (in regard to companies other than banking) is the suspension of business, 2. The act of insolvency contemplated by the statute, is committed at the time the company suspends its ordinary business operations. 3. Under the 42d section of " the act to authorize the establishment, and to prescribe the duties of companies for manufacturing and other pur- poses," all laborers in the employ of the company at the time of the sus- pension of its business operations, and not those only in their employ at the time of instituting legal proceedings against them as an in&olvent corpora- tion, are entitled to i)riority iu payment over the other creditors of the company. 4. The apprentices of such company are entitled to their wages without regard to the time that they were last actually laboring for the company. Their legal rights cannot be afiected by the refusal or inability of the com- pany to furnish them with employment. An injunction having been issued against the defendants as an insolvent corporation, under the " act to {)revent frauda by incorporated companies," receivers were appointed, who 118 CASES IN CHANCERY. Bedford v. Newark Machine Company. are now settling the affairs of the company. The receivers have filed their petition, asking the direction of the court ia the disposition of the funds in their hands. Ranney, for petitioner. J. P. Jackson, jun., for laborers and apprentices. The Chancellor. The bill in this case was filed on the twenty-third of October, 1861, and an injunction thereupon issued against the defendants as an insolvent corporation, re- straining them from exercising their corporate po-wers. On tlie twenty-ninth of October, 18G1, receivers were ap- pointed, by whom the affairs of the company are being settled, and who now ask the direction of the court in the disposition of the funds in their hands. The company was incorporated under the provisions of the act of 1849, authorizing the establishment of manu- facturing companies, and of the supplements thereto. Nix. Dig. 492. By the forty-second section of the act, ifc is provided that, " in case of the insolvency of any company formed under the provisions of this act, the laborers in the employ of said company shall have a lien upon the assets thereof for the amount of wages due to them respectively, which shall be paid prior to any other debt or debts of the company," At the time of filing the bill and issuing the in- junction, tlie company was indebted to about forty laborers in the sum of $2208.07. Of these laborers, only twelve were in the actual employ of the company at the time of filing the bill. The others had ceased working for the company at various times, from and after the twenty-third of March pre- ceding. It is insisted on the one hand, that they are all entitled to priority in payment over the other creditors of the company j and on the other, that those laborers alone are entitled to priority, who were in the employ of the company when the proceedings in this cause were instituted, and the business of the company restrained. By the terms of the act, the lien upon the assets of the company, and consequent priority iu payment, is not given to laborers to whom the FEBRUARY TERM, 1863. 119 Bedford v. Newark Macliine Company. company are iiulebtocl merely, but to laborers in the em- ploy of the compmuj. There is a marked contrast between the phraseology of this act and that of the '' act for the pro- tection and relief of mechanics and laborers." Nix. Dig. 34, § 27. By the terms of the latter act, under an assignment for the benefit of creditors, the wages of clerks, miners, me- chanics and laborers, due at the time of making the assign- ment from the person making the same, are declared to be preferred debts, and entitled to priority in payment. It seems probable that the terms of the act now in question, as well as those of the "act to secure to operatives in manufactories and other employees their wages," Nix. Dig. 46, § 69, were adopted not only to secure remuneration to the operatives, but upon a principle of sound public policy to encourage manu- factures by inducing the operatives to continue their labor, notwithstanding the inability, real or apprehended, of the employer to pay their wages. Those laborers only are en- titled to priority in payment, who were in the employ of the company at the time of their becoming insolvent. But how is that time to be determined? The company were embarrassed and found difficulty in meeting their engage- ments as early as April, 1861, and the facts now before the court might perhaps justify the conclusion that they were then indebted beyond their ability to pay. But they continued their business operations, so far as appears, un- interruptedly, until the twenty-fourth of September, when they made their last weekly payment to their laborers. On the same day two judgments were entered, and writs of fieri facias issued against them for small amounts. By virtue of these executions levies were made, and the [)remises occupied by the defendants were closed by the sheriff, but after remaining closed a day or two they were again opened. On the thirtieth day of September, two other judgments, amounting to about $24,000, were entered and executions issued thereon, after which time until the issuing of the injunction, the laborers remaining in the em[)loy of the company were employed on short time ; the amount of 120 CASES IN CHANCERY. Bedford v. Newark Macliine Company, wages paid them at any one time not exceeding one third the amount due. All tlie above executions were outstanding, unsatisfied claims ou the property of the company, when the injunction was issued. . The bill, which is exhibited by a director of the company, charges that the comjxiny were in- solvent and became known to be so on the first of October, 18G1. The bill further charges that the company is insolvent to the knowledge of the complainant, and cannot resume its business with safety to the public, and advantage to the stockholders. There is no evidence of any change in the operations of the company between the first of October and the time of issuing the injunction. Their business was sus- pended on the first of October, as fully as at the time of granting the injunction. From that time the machinery and stock of the company, manufactured and unmanufactured, were under levy for an amount exceeding their value, and were in the hands and under the control of the sheriff. The operations of the company were virtually suspended from inability to carry them on, upon the first of October. The act of insolvency was then committed. All the laborers at ihat time in the emj)loy of the company have a lien for their wages, and are entitled to priority in payment out of the assets in the hands of the receivers. It is unnecessary to inquire whether the insolvency of the company may not be dated from the twenty-fourth of September, when the works were first closed under execution, for none of the laborers left the employ of the company between those dates. Prior to the twenty-fourth of September, there is no ground upon which the company can be declared insolvent for the pur- poses of the present inquiry. The act respecting insolvent corporations, under which these proceedings were instituted, looks to the suspension of the ordinary business of the company, or some overt act by which its insolvency can be ascertained and declared. The court cannot, upon an inquiry of this nature, undertake to investigate the financial ability of the corporation at previous periods, founded upon mere failure to meet its engagements, FEBRUARY TERM, 1863. 121 Bedford v. Newark Machine Company. or upon the actual state of its finances after its business has been suspended. The bankrupt hiws of England have, with great precision, defined what shall constitute an act of bank- ruptcy, upon which proceedings may be instituted and the party declared a bankrupt. The act in question has furnished such criteria or evidences of insolvency in regard to banking companies. Nix. D'tg. 372, § G. In regard to other com- panies, no criterion is furnished except the suspension of business. Before an injunction can issue, it must ajipear that the company has become insolvent, and siiall not be about to resume its business in a short time thereafter with safety to the public and advantage to the stockholders. Nix. Dig. 372, §5. Tiie apprentices of the company are entitled to their wages without regard to the time that they were last actually laboring for the company. Tiiere is no evidence that they were discharged or released from their indentures prior to the act of insolvency. Their legal rights cannot be affected by the refusal or inability of the company to furnish them with employment. It ajjpears from the receivers' report, that largo expenses have been incurred in repairs to the real estate, and to the machinery covered by mortgages and executions, and in em- ploying watchmen for the safe keeping of tiie property, both real and personal. It is proper, therefore, that it should be referred to a master, to ascertain and rej)ort vv'hat, and to what an amount of the said expenses and disbursements shall be paid from the fund raised from the sales of macliinery and personal property encumbered by said mortgages and judgments. Tiie receivers' accounts will also be referred to a master, with directions to examine, and, if necessary, to restate the same; and also to report wliat will be a reasona- ble and just compensation to be allowed to the receivers. 122 CASES IN CHANCERY. Berckmans v. Berckmans. Emile C. Berckmans vs. Sara E. Berckmans. 1. The evidence of an alleged paramour, being particeps criminis, is but weak. But neitlier his evidence, nor that of the woman charged with adul- tery, is to be rejected on the assumption that they are guilty. 2. Express testimony cannot be rejected on the sole ground of its im- probabilit)'. Its impossibility alone can discredit the witness. 3. A witness must state/ac/s, not inferences, and the court can draw no inference, whicli tlie facts as proved do not justify. 4. Tlie testimony of one witness uncorroborated, unsupported, and in its details improbable, is not sufficient to establish the charge of adultery, against the full and explicit counter testimony of the person accused and her particeps criminis. 5. It is not necessary that the offence should be proved in time and place as cliarged in the bill. The mind of the court must be satisfied that actual adultery has been committed, but if the circumstances establisJi the fact of general coliabitation, it is enough, although the court may be una- ble to decide at what time the offence was committed. 6. Parol evidence of the declarations of a particeps criminis, even though he has confessed his guilt, is not competent evidence against the party charged with adultery. 7. To establish the existence of adultery, the circumstances must be such as would lead the guarded discretion of a reasonable and just man to that conclusion. It must not be a rash and intemperate judgment, moving upon appearances that are equally capable of two interpretations. 8. The facts proven must be such as can not be reconciled with proba- bility and the innocence of the parties, 9. Mere imprudence, indiscretion, or folly, is not conclusive evidence of guilt. The mind of the court must be satisfied, that there was an intimacy between the parties entirely inconsistent with the duty whicli a virtuous wife owes to herself and to her husband. 10. When the conduct of a part}' admits of two interpretations equally consistent with probability, the one involving guilt and the other consist- ent with innocence, the rules of evidence as well as the dictates of justice require that the interpretation should be favorable to innocence. 11. In the investigation of a wife's guilt, the conduct of the husband is always regarded as a most significant circumstance. So long as there is reasonable doubt of her guilt, or a plausible ground for a hope of her in- nocence, the husband's forbearance is both excusable and laudable. But when the husband holds in his hands what he claims to be satisfactory proof of his wife's guilt, his delay to prosecute is strong evidence in the tvife's favor. FEBRUARY TERM, 1863. 123 Berckmans v. Berckraana. 12. To prove adultery by circumstantial evidence, two points are to be e-tabllshed ; the opportunity for the crime, and the will to commit it. Where botli are edahllshed, the court will infer the guilt. Williamson and Frelinghuyscn, Attorney General, for com- plainant. Titsicorth and Parker, for defendant. The Chancellor. The bill is filed by the husband against the wife for a divorce, on the ground of adultery. The parties were married at Plainfield, in this state, where they both resided, on the 8th of February, 1858. At the time of the marriage the husband was about twenty-three, and the wife twenty-one years of age. Two children were born of the marriage, viz. a son, who was born near Augusta, Georgia, where the parties temporarily resided, on the eighteenth of February, 1851), and a daughter, born at Plainfield, on the third of April, 1860. They continued to cohabit as man and wife until September nineteenth, 1860, when the wife left the house of her husband, with her two children, and went to the city of New York, where she remained about ten days, when slie returned with the children to Plainfield, and went to re- side with her mother. On the fourteenth of November, 1860, she filed her peti- tion in this court asking a divorce a viensa ct thoro from her husband, on the ground of extreme cruelty, and charging that she was compelled to leave his house in consequence of his ill-treatment, which became unendurable. On the sixteenth of January, 1861, the wife filed her petition for alimony pere- dcnte lite, which was granted on the fifth of February there- after. On the last named day, the bill in this cause was filed by the husband, asking a divorce a vinculo matrimonii, on the ground of adultery. The further prosecution of the suit, in- stituted by the wife, was thereupon suspended, and the suit of the husband is now brought to final hearing upon the pleadings and proofs. 124 CASES IN CHANCERY. _ . . . • m4 Berckmans v. Berckmans. The adultery is charged to have been committed on dif- ferent days in the months of May, June, July, August, Sep- tember and October, 1859, and in the months of June and September, 1860, with one Randolpli Titsworth, and with other persons unknown to the complainant. The answer fully denies the charge of adultery, re-affirms the charges of cruelty preferred against the husband in her bill of complaint against him, and also the charge that she was compelled by his ill-treatment to leave his house. The simple question in the case is, whether the evidence is sufficient to su})port the charge of adultery. The complain- ant offers both direct and circumstantial evidence of the charge; direct evidence I mean of facts, from which the con- clusion of guilt is a necessary and unavoidable inference. I. As to the direct evidence, Mrs. Maria E. Berckmans, the mother of the complainant, testifies that in June, 1859, she saw the defendant lying on the scfa in the parlor, and Dr. Titsworth lying on her. She further testifies, that in the fall of the same year, she saw the defendant sitting on a chair in her bed-room dressed in a loose sack, with her neck and bosom exposed, and Dr. Titsworth sitting close by her in another chair, with one of his arms lying on the defend- ant's neck, and kissing her. His other hand had hold of one of the defendant's hands, and was lying on her lap. The witness adds : " I stayed looking at them only one moment, till the defendant got up, and he put both arms around her and kissed her, and then I went away." If this testimony is true, it precludes the necessity of further investigation. All speculation as to the guilt or innocence of the defendant is at an end. But the defendant and the alleged •pcirtloeps cnminis have been examined. They both utterly and most explicitly deny the truth of the charge. Dr. Titsworth tes- tifies, in regard to the parlor scene : " I never was lying, upon the sofa, neither was Mrs. Berckmans, in ray presence. There is no truth in the statement of the witness. * * * I pronounce her statement in regard to the bed-room sceue FEBRUARY TERM, 1863. 125 Berckmans v. Berckmans;, emphatically false. There is not the first paiticle of truth in it whatever. There is no foundation for it. I believe I never was in that room alone with her in my life. I was never in any room with Mrs. Berckmans in the position her mother-in-law described, or in any indecent or improper po- sition." The defendant herself is equally emphatic in her denial of the truth of the charge. Neither of these witnesses is entitled to the credit of fair and impartial witnesses. It is not an unnatural i)resumption, if parties are guilty of adultery, that they will not hesitate to resort to {)eijury to conceal their guilt. The alleged paramour being particcps crimlnis, his evidence is but weak. 2 Greenl. Ev.^ § 46. But their evidence is not to be rejected, on the assumption that they are guilty. In the absence of very clear evidence of their guilt, their evidence is to be fairly weighed and considereproba- tion, in September, where she remained until she abandoned him for alleged misconduct. Even after the wife had left her husband, the mother-in-law declared that her doors were open to the daughter-in-law if she chose to return. Now, that a mother, a woman of wealth and of respectable social position, should so have demeaned herself, seems to me in the highest degree unnatural and improbable. Her love for her son, her dislike for his wife, her regard for her own repu- tation and that of her family, would have prompted her to speak and to act. But for fifteen months not one word of friendly warning to the son, not one word of kindly remon- strance, or indignant rebuke, or angry coudemiration to the daughter-in-law, escapes her lips. She quietly submits to have her house turned into a brothel, and to have a foul blot inflicted upon the honor and reputation of her family. It would be a reflection upon the witness to credit her state- ment that she saw what she now imagines, or says she saw, or believed what she now professes to believe. 1 here is no evidence at the time of this transaction, or until the follow- ing year, of any intimacy between the wife and Dr. Tits- worth. He testifies (and so is his account) that he visited the house twice in May, on the twenty-fit'th and twenty-sixth, to vaccinate the child, and that he did not visit the house again professionally until September, and no witness has FEBRUARY TERM, 1863. 133 Berckmans v. Berckmans. been called to show that he was there. Pie says that he was in the house but once in the month of June, when lie called to procure the scab from the arm of the child, and that he did not then see Mrs. Berckmans, but the servant only. Under these circumstances, I do not think the testimony of Mrs. Berckmans, uncorroborated and unsu[)j)orted as it is, sufficient to establish the charge of adultery, against the full and explicit counter testimony of the defendant herself, and of Dr. Titsworth. 11. The direct evidence of guilt having failed, the com- plainant's case must rest upon the circumstantial evidence adduced in its support. It is clearly not necessary that the offence should be proved in time and place. The mind of the court must be satisfied that actual adultery has been committed, but if the circumstances establish the fact of general cohabitation it is enough, although the court may be unable to decide at what time the offence was committed, Loveden v. Lovedcn, 2 Hagg. C. R. 1 ; Hamerton v. Hamer- ton, 2 Hagg. E. R. S ; Grant v. Grant, 2 Carties 1 6 ; Bishop on M. and D., § 422. The first of the chain of circumstances relied upon in proof of the general cohabitation of the parties, is the length and frequency of the doctor's visits to her. This evidence covers a period of about five months, from the last of March, or first of April, to the first of September, 1860, during the period that the complainant lived in his brother Prosper's liouse, on the opposite side of the road, and a short distance from his mother's. Five witnesses testify upon this point. One of these witnesses, John Simpson, speaks of Dr. Titsworth visiting the house frequently between the first of January and March. He thitd'Cs the complainant removed into the house on the first of January. In this he is clearly mistaken. The complainant did not remove into his brother's house until late in March, a few days before the return of his mother from Georgia. So she testifies, and so the evidence in the case clearly shows. After the first of 134 CASES IN CHANCERY. Berckmans v. Berckmans. April, the witness kuevv of his making from five to ten visits of from half an hour to an hour's duration. Elizabeth Ran- dall testifies to his making one visit of three hours duration in June. John Thys, who was in the complainant's employ as a laborer four or five days, but not consecutively, in June, testifies that every day he was there, the doctor visited at Mr. Berckmans' between nine and twelve in the morning, while Mr, Berckmans was absent from home. Jacob V. Coles and Jane Gvvynu also testify to frequent visits, some- times four or five times a week, sometimes twice a day, some- times an hour in length, and on one occasion over two hours. The frequency and length of these visits, especially in the absence of the husband, without explanation, would certainly justify grave suspicions. But it is shown that Mrs. Berck- mans was confined with her second child on the third of April, when her eldest was but little more than a year old, that after a partial recovery she suffered a relapse, and that she continued a long time in delicate health, having the care of two voung children, without a professional nurse. It ap- pears from the doctor's account book, which is produced in evidence, that he visited Mrs. Berckmans twice in March, previous to her confinement, that he delivered her of a child on the third of April, that during the month of April his professional visits were very frequent, and that they con- tinued with greater or less frequency during the summer. None of his visits were made secretly or at unusual times. The only circumstance of suspicion is that they were long, and generally made during the husband's absence. It appears that the husbantl was absent daily at the seminary, from nine to twelve in the morning, and as some of the witnesses Bay, in the afternoon also. The visits were most frequently made in the morning during a portion of the day usually de- voted to professional visits. It should therefore excite no remark, that it occurred during the absence of the husband from home. The professional visits of physicians to the families of men of business are probably, in a great majority of cases, made when the father of the family is absent. FEBIlUxVRY TERM, 1863. 135 Berckmans v. Berckraan?. The second ground of suspicion is, that there were re- peated interviews between the defendant and Dr. Titsworth at her mother's house in the evening, that siie was once or twice at his office, and that he accompanied her home on several occasions, lier husband not being present. This oc- curred between Saturday, the first of September, 1860, when the complainant and his wife removed from his brother's house to his mother's, and Wednesday, the nineteenth of September, wdien the wife left her husband. Tlie evidence upon this point is furnished by the testimony of Dominic Canatta, an intimate friend of the husband, who as he alleges, for his own satisfaction, sometimes alone, antl sometimes in company with tiie husband, was engaged in watching the movements of the wife. This surveillance of the wife was instituted by the witness in consequence of information de- rived from the husband. There is no room for doubt, that all the facts within the knowledge of the witness were communi- cated to the husband, and yet the fi-ieudly relations of the husband and the doctor continued until after the wife had left her husband. If the conduct of the wife in this regard was not entirely satisfactory to the husband, and if she was not fully justified by the reasons which she assigns for it, which I do not propose to examine in detail, it is at least ap- ))arent that there was nothing in her conduct which furnished to the husband, or which can furnish to the court, any satis- factory evidence of her guilt. Every fact; stated by the witness, except so far as it is contradicted or satisfactorily ex- plained by other evidence, is quite consistent with the purity and innocence of the wife. The third ground of suspicion is, examinations of, and operations upon the person of the wife, with electro magnet- ism and with instruments, in September, October, and No- vember, 1859. The details of these operations have been introduced into the evidence for the purpose of showing that they were unnecessarily gross; being indecent liberties with the person of the defendant, and indicative of sensual feelings and purposes ou the part of the physician, and that it was in 136 CASES IN CHANCERY. Berckmans v.Berckmans. fact, an attempt on the part of the defendant and the ])liysi- cian to j)rocure an abortion. That the pliysician and the wife knew that she was pregnant. Tliat it was probably the result of their illicit intercourse, and that they feared that the appearance of the child might furnish some evidence of its paternity. The two theories seem quite inconsistent. If the defendant was pregnant by the physician, if there is the least truth in the evidence of Mrs. Berckmans, that as early as June, 1859, the defendant and her physician were in the habit of adultery, it is scarcely credible that such extra- ordinary expedients would have been resorted to for the mere gratification of sensual feelings, or as a cover for in- decent liberties. Nor do I think the other theory at all warranted by the evidence. The fact is, that the evidence upon this point was furnished by Dr. Titsworth himself. The nature of the operation appears by the charges upon his book of account, for the recovery of which a suit had been instituted, and a copy of the account filed with the justice. That ac- count was in the hands of counsel, before and at the exami- nation of the witness. These operations were all conducted at the request of the husband, and in his presence. This fact is ex[)ressly sworn to by the physician. If unfrue, it might readily and effectually have been contradicted by the husband. The account given by the physician is, that he was first desired to ascertain whether the wife was pregnant, and that fact being ascertained, he was desired to produce an abortion. For the purpose of satisfying the parties, he used an instrument for the ostensible purpose of procuring an abortion, but without any real intention of producing that result. Whatever difficulties may lie in the way of ac- cepting this as tlie true version of the transaction, they ap- pear to me to be far less than those which must be encountered by adopting the theory of the complainant's counsel. If the doctor really wished to procure an abortion, why was it not effected? And if the wife consented, why was the husband's concurrence at all necessary? It may be added, that how- ever immoral or unjustifiable the act- may have been, the FEBRUARY TERM, 1863. 137 Berckmans v. Berckmans. desire of the husband and wife that an abortion siionld be procured, does not appear at all incredible. The wife had very recently given birth to a child, and had endured great 6ufferin<>: durincj her confinement. But the most significant of all the circumstances relied on as evidence of the wife's guilt, is the j)articipation by Dr. Titsworth in her flight from the husband's house, his visiting her in New York, and his continued intercourse with her after her return. There is little or no dispute as to the facts in relation to this part of the case. The real question is, as to the nature and motives of the fliglit of the wife, and the object with which the assistance was rendered. Was it the flight of an adulteress through the complicity of her paramour? Or the flight of a virtuous wife from the real or fancied wrongs of the husband, and was the assistance rendered through tho mere promi)ting3 of friendly sympathy ? The evidence clearly shows that alienation subsisted between the husband and wife, from causes unconnected entirely with the wife's rela- tions with Di", Titsworth. Of the long continued existence of these diffiL'ulties, whatever may have been their origin, there is no question. Of the discordant relations between the wife and the mother-in-law we have already spoken. It is obvious that the wife was very reluctant to return to live under the roof of the mother-in-law. She did return on Saturday, the first of September. On Sunday Mrs. Marsh, the mother of the wife, visited the daughter at the house of Mrs. Berckmans, the mother-in-law. She was ordered to leave the house, and on her refusal to do so, the husband, with the aid of two men who had been procured for the pur- pose, attempted to remove her by force. The wife interfered for her mother's protection. A violent struggle ensued, in the course of which the wife and the mother both received injuries, and the mother was compelled to leave the house. On Monday, tho wife communicated to the doctor her inten- tion of leaving her husband, if she could take her children with her. On Tuesday she consulted counsel, and repeated 138 CASES IN CHANCERY. Berckrnans v. Berckmans. her desire to leave her husband. On Wednesday she re- quested the doctor to speak to a magistrate and an officer to help her away with her children, complaining that she was unable to stay any longer in the house, and that she was afraid of her life. At her request the magistrate was spoktMi to, a carriage procured, and the f(jllowing note written to the wife : \Yednesday, 4 P. M. Mrs, B. I have seen Esq. R., and he thinks the better way for you is to go unprepared, that is, without making any disturbance or exciting alarm, and upon more mature reflec- tion, I think myself that will be best and certainly the easiest. For instance, let Rickey take Gussie riding in his wagon, and when you are all ready, with your hoops well laden with children's clothing, &c., then tell Rickey to draw him to the front gate, and Hennie with Nina, quietly but quickly * * * the hot-house, down the walk, and all at one move get into a carriage all ready, and * * at Bonnell, taking the first by- street to place of destination. N. B. Don't have the children dressed different from common daily dress ; if you do it will foil you. Put on as many dresses and clothing as you can each, and attach the children's clothing to skirts. Be assured this is your best and safest course. I will see Dr. Sherman or Mrs. S., and have them drive u[) and stop at Bonnell» after the first train arrives this P. M. ; and then if E. is down town, as he frequently is, avail yourself of the opportunity and slip, and don't delay too long about your things, but go with them if you can, but without them if you can't. A Friend. In the margin was written : I must see you to night, it may be the last opportunity in a long while ; don't fail. Let no one read this, and burn it immediately. In accordance with this arrangement, the wife left her husband's home on the nineteenth of September. The doc- tor saw her before leaving Plainfield, prescribed, and gave medicine for her children who were sick. The wife went to New York with her children and remained there ten days, then returned to the house of a friend near Plainfield, then to her mother's house where she continued at the commencement FEBRUARY TERM, 1863. 139 Berckmans v. Berckraans. of this suit. The doctor visited her twice in New York, as he testifies, at the request of the motlier of the defendant, to see her sick cliildren. He saw her again after her return, and continued to visit her up to the time of bringing the suit. The question is not whether the defendant left her husband for a justifiable cause, nor whether the doctor was justified in rendering the assistance he did. Thesiraple inquiry is, whether the facts afford any evidence that the wife was guilty of adultery, and that the doctor was her paramour. I am clear that they furnish no evidence of adultery on the part of the wife, or of any guilty complicity on the part of Dr. Tits worth. The arrangements for her departure, the consulting of counsel, the a{)peal to a magistrate, her manifest anxiety respecting her children, the general tone of the letter, are all I think utterly repugnant to the idea of the flight of an adulteress from the home of her husband, at the procurement or with the connivance of a paramour. The letter, the arrange- ments and circumstances of the transaction, afford convincing ])roof that the wife left the house of her husband, not as a criminal, but because she believed (wiiether right or v/rong is immaterial) that she had justifiable cause for her departure. If it be conceded that the fligiit of the wife was without any justifiable cause, and the aid and counsel afforded by Dr. Titsworth an unwarrantable interference, it does not materi- ally aid the complainant's case. There are other facts in evidence, but they do not ma- terially vary the aspect of the question. Evidence of a mother's errors or indiscretions can surely be no evidence of a daughter's guilt. Exposure to contagion is no proof of the existence of disease, though it may render its occurrence more probable. So exposure to moral contagion may render the existence of moral guilt more probable, but it will not justify the court in abating one jot of the evidence requisite to prove actual guilt. It is no province of an earthly tribunal to visit the iniquities of parents upon their children. Nor is the conduct of Dr. Titsworth, as a witness before 140 CASES IN CHANCERY. Berckmans v. Berckmans. the magistrate, competent evidence of the wife's guilt. It was coni[)etent only as it tended to affect the credibility of his testimony. Parol evidence of the declarations of a parti' ceps crinmiis, even though he had confessed his guilt, would not have been competent evidence against the defendant. The case in some of its aspects is not free from difficulty, and my mind has not been free from doubt, during the pro- gress of the investigation, but after the most anxious consid- eration I feel that those doubts can only be safely resolved in favor of the defendant's innocence. To establish the existence of adultery, tire circumstances must be such as would lead the guarded discretion of a rea- sonable and just man to that conclusion. It must not be a rash and intemperate judgment, moving upon appearances that are equally capable of two interpretations. 2 Haggard a R.2; 2 Greeiil. Ev., § 40 ; Bishop on M. & D., § 423. The facts proven must be such as cannot be reconciled with probability and the innocence of the parties. Dailey v. Dailey, WrigMs R. 514. Mere imprudencie, indiscretion or folly, is not conclusive evidence of guilt. The mind of the court must be satisfied that there was an intimacy between the parties, entirely in- consistent with the duty which a virtuous wife owes to her- self and to her husband. Guided by these ])rinci[)les, I do not feel warranted in pro- nouncing the defendant guilty of adultery. While there is much in her conduct to regret and censure as indiscreet and ill advised, I do not find in the evidence satisfactory proof of guilt. Where the conduct of a party admits of two interj)re- tations, equally consistent with probability, the one involving guilt and the other consistent with innocence, the rule of evidence as well as the dictates of justice, require that the interpretation should be favorable to innocence. The burden of proof is upon the complainant, and it must be clear to justify the court in condemning a young wife to a life of dishonor, and her children to shame. Every material circumstance relied on as presumptive evi- FEBRUARY TERM, 1863. 141 Berckraans v. Berckmans. dence of guilt, appears to me equally susceptible of an inter- pretation consistent with probability and with innocence. There is force as well as justice in the suggestion of counsel, that while each circumstance standing alone may admit of ex- planation and fail to command our belief of the defendant's guilt, yet the case is to be decided upon a view of all the facts combined, and that when they are grouped and presented in one view, they lead irresistibly to the conviction of the defend- ant's guilt. I have re-read and considered the evidence in that aspect, with all the care which the importance; of the case demands. And while it may be admitted that there are grounds for doubt as to the innocence of the defendant, there are controlling circumstances which preclude a conviction of guilt, to which I will briefly advert. At the very threshold of the inquiry we meet the signifi- cant fact, that the bill filed by the complainant in this cause is virtually a defensive measure. The defendant left her husband's house with two infant children, the eldest eigliteen months old, a })oor and almost friendless woman, on the nineteenth of Se[)tcmbcr, 1860, and found shelter under her mother's roof. Within two months she filed her petition for a divorce, on the ground of her husband's cruelty. She ap- plied for alimony, and exhibited jn'oofs in support of the ap- j>lioation. It was not until February of the f;dlowing year that the husband awoke to a sense of his wife's guilt and his own wrongs, and filed his bill for relief. All the material fo.cts of the case were within his knowledge before the wife had commenced proceedings against him. His mother" had tokl him that she had with her own eyes witnessed the adul- terous intercourse. He knew of the wife's visits to her mother, and of the company in which she returned to his house on several evenings previous to her flight. He had himself traced Iier movements with the assistance of his Italian friend. He knew of the physician's visits, both in Plainfield and in New York, and yet he forbore to take a step for the vindication of his injured honor. In the inves- tigation of a wife's guilt, the conduct of the husband is al- VOL. I. I 142 CASES IN CIIAN'CERY. Berckmansv. Bcrckmans. ways regarded as a most significant circuimstance, and one v/hich cannot be lost sight of. So long as there is reasonable dcabt of her guilt, or a ])lausible ground for a hope of her innocence, the iiiisband's forbearance is both excusable and laudable. But when he holds in his hands what he claims to be satisfactory proofs of her guilt, his delay to prosecute i3 strong evidence in the wife's favor. Rut the evidence furnished by the husband's conduct is not merely negative. There is, after the abandonment and return of the wife, the strongest direct evidence of his un- shaken confidence in her virtue. It is proven that after the wife's return in October, when she went to his house to take away her things, that they had an interview, that he said he was sorry for what had hapj)encd, and that if she kept herself true to him they might live together after the affair was settled. True, this evidence comes from the lips of the wife, but it is not contradicted by the husband. It was a fact peculiarly within the knowledge of the parties themselves, and therefore, if untrue, eminently j)roj)er that he should have been called to contradict it. Is it possible that the husband who uttered that language could have believed his wife guilty ? Does it not afford the strongest incidental proof of a fact which the evidence strongly favoi-s, that the trouble between these parties has really been occasioned by the indiscretion and unwarranted interference of others ? Some of the evidence relied on as proof of criminal inter- course points to a period of time when the wife was in the last stage of pregnancy ; other portions of it to periods when she had just given birth to a child, during the period of her confinement or during severe illness, or the illness of her children, or when she was laboring under natural and severe mental anxiety ; periods certainly when sensual indulgence would not be anticipated. Thft evidence covt^rs a period of four and a half years, ex- tending from the marriage of the parties In February, 1858, down to the close of the testimony in 18G2. It covers not onlv their entire married life, but the period of eighteen rEBRUARY TERM, 18C3. 143 Berckmans v. Berckmans. months diirlni^ tlte pendency of the suit and tho taking of the testimony. She has lived much of that time in the house, and under the eye of a motlier-in-law who freely avows her suspicions and dislike of the defendant. She has been sur- rounded by servan*^,s. She has been watched by spies, and yet, exclusive of the two acts sworn to by the mother, and whicii have already been disposed of, there is evidence of no stolen interview; no private correspondence ; no amorous or passionate utterance; no exi)rcssi()n of affection; no licen- tious expression of lip or eye; no indecent familiarity; no personal freedom (aside from the performance of professional duties); no proximate act, leading up to the commission of the crime. I think it may be affirmed, however injudicious or indiscreet her conduct may be deemed, there is no one well authenticated act on the part of the defendant, inconsisteai; with the duty which a virtuous wdfe owes to herself and to her husband ; no one which may not be reconciled with probability and with innocence. And yet the theory of the com[»lainant is, that during months or years, the wife and her alleged paramour were pursuing a course of shameless adultery. In order to prove adultery by circumstantial evidence, two points are to be ascertained and established; the opportunity for the crime, and the will to commit it. Where both are established, the court will infer the guilt. The radical diffi- culty with the com[)lainant's evidence is, that while it estab' lishes the one, it utterly fails to prove the other. I cannot but think that the able and learned counsel of tbe complainant, in their conduct of the evidence and argument of the cause, felt the full pressure of this difficulty. Failing to prove a blemish in her reputation or a stain upon her viitue, they prove that her mother had been divorced, tiiat the visits of her physician are too frequent and too long, and that, having no liither, or brother, or friend, to whom she could have recourse, she resorted to that [)hysician for coua- Bel and guidance, when she was about to fly from her husband for his alleged cruelty. 144 CASES IN CHANCERY. Btirnham v. Dalling. In view of the whole testimonv, I feel constrained to say that I find no satisfactory evidence of the guilt of the defend- ant, and shall decree that the complainant's bill be dismissed. Note. Decree unanimously affirmed by the Court of Ap- peals, at March Term, 1864. Cited in Black v. Black, 11 C. E. Gr. 432. Elbert L. Burnha::^ and wife vs. Robert Dalling. In an attempted settlement by a guardian of liis account, either under flie act respecting tlie Orplians Court, Nix. Dig. 575, or under the act rela- tive to guardians, J^ix. Dig. 341, there must be a compliance with the requirements of the statute, to render the account exhibited by the guar- dian prima facie evidence of its correctness, and to impose upon the ward tiie burden of proving, or showing the falsity or injustice of any item of the account, to which he may afterwards take exceptions. The ease was heard upon bill and answer. Gilchrist, for complainants. The order of the Orphans Court Avas void, because not parsuant to the statute. Gray v. Fox, Saxton 260. Also because no notice was given. Nix. Dig. 580, § 24; Bessy. Cole, 3 Zab. 116, 125; Boulion v. SeotCs Admr, 2 Green's Ch. B. 231 ; Fennimore v. Fennimore, Ibid. 292. Until final account, this court will treat accounts as open. Merselis v. Ex'rs of MerseUs, 3 Halst. Ch. B. 573 ; Exton v. Zule, 1 McCartcr 501. BarJcalow, for defendant. The Chancellor. The bill is filed by husband and wife against the guardian of the wife for a discovery and an ac- ocrant. William Bale, the father, died on the twenty-seventh of September, 1849, leaving three infant children, two of whom were under the age of fourteen years. FEBRU.\RY TERM, 1863. U5 Biirnliaia v. Dalling. The defeiulant was a[)[)oiiitt'(l guardian of the tliree children by the Orphans Ct)iut of Passaic; county, in March, 1850. In October, 1853, during the minority of the wards and while they were living- under his guardianship, the guardian filed his account in tlie surrogate's office of the county of Passaic, under oath, whereupon the following order was made: Passaic Oephans Court, October Term, 1853. Robert Dalling, guardian of Eliza-"] beth Bale, a minor under twenty-one S- Intermediate account years of age. J The surrogate having audited and stated the account of the above named guardian, and placed the same on the files of his office twenty days previous to this time, and being now reported for settlement, the same is in all things allowed as reported. The only question submitted for decision is, whether this settlement can be regarded as prima facie evidence of the truth of the charges contained therein, so as to render it incumbent upon the ward to prove or show the falsity or ia- justice thereof. It is admitted that no notice was given of the settlement by public advertisement, as was required by the statute, upon the settlement of the accounts of executors, administra- tors, guardians and trustees, in force at the date of the set- tlement. Nor was any citation issued to the wards to appear at the said Orphans Court, as required by law. Nix. Dig. 580, § 24. It is obvious that the attempted settlement of the guardian's accounts was not made in compliance with the requirementH of the statute, and that the decree of allowance is nugatory and void, as against the wards. Nor can the exhibition and filing of the account, and the allowance of it by the court, be of any avail against the ward under the provisions of the third section of the act relative to guardians. Nix. Dig. 341. The proceeding was uot coa- 146 CASES IN CHANCERY. Burnliam v. Dalling. ducted in accordance with the reqiiircnicnt of that act. No notice by public advertisement or citation of the ward is re- quired. The account is not to be audited or stated by the surrogate. No decree of allowance is to be made. There is in fact no settlement of the account within the meaning of the statutes directing and regulating the settlement of the accounts of trustees and guardians. The account of the guardian is to be exhibited under oath, to be examined by the court, or by such person or persons as they shall apj).')int, and being found and certified or reported to be properly and fairly stated, and the articles thereof to be su[)ported and justified by the vouchers, and the report, in case of a refer- ence, being approved and confirmed by the court, is, with such certificate or confirmation, to be entered of record in a book to be kept by the clerk for that puri)t)se. It is obvious that the ju'oceeding in the Orjihans Court was not conducted in reference to these requirements. There is no certificate that tlie accounts were examined by the court, or that they were found to be pro})erly and fairly stated, and the items tliereof supported and justified by the vouchers. Nor is there any order directing it to be recorded. It is only a compli- ance with these requii'cnients that renders the account thus exhibited by the guartlian prinui faeie evidence of its correct- ness, and imposes upon the ward the burden of proving or siiowing the falsity or injustice of any item of the account to which he may afterwards take cx(!eptions. In taking and stating the accounts of the guardian, the attempted settlement in the Orphans Court not having been made as required by law, cannot be regarded as j)resumptive, and much less as conclusive evidence of the truth of any of the charges contained therein. From the view which has been taken of the case, it is unnecessary to express any opinion upon the question sug- gested upon the argument, how far any settlement made by a guardian of his accounts during the minority of his wards and the continuance of his guardianship, will be regarded iu a couit of equity as binding upon the infants. FEBRUARY TERM, 1863. 147 Hopper V. Hopper. Garket R. Hopper vs. John I. Hopper. 1. Where a contract is certain and fair in all its parts, and for an ade- quate consideration, and the party seeking its enforcement lias hehi him- self ready to perform it according to its terms, without default on his pari, and has been prompt in his application for relief, a court of equity will decree a specific performance of the contract, as a matter of course. 2. It constitutes no objection to a decree for specific performance, that the application is made to enforce the payment of the purchase money, and not to compel a delivery of the title. 3. The doctrine is well established tliat the remedy is mutual, and that the vendor may maintain his bill in all cases where the purchaser could 6ue for a specific performance of the agreement. 4. Mere pecuniary inability to fulfill an engagement cjpes not discharge tlie obligation of the contract, nor does it constitute any defence to a de- cree for specific performance. 5. Where the contract is not capable of being performed by reason of some difficulty inherent in the subject matter of the contract, a specific performance will not be decreed. The case was heard upou the pleadings and proofs. C. II. Voorhis, for complainant. Woodruff, for defendant. The Chancellor. The bill is filed by a vendor to enforce the specific performance of a contract for the purchase and sale of real estate. Tiie contract is in writing, and bears date on the tenth of June, 1862. By the terms of the con- tract, the complainant agreed to convey to the defendant a tract of land containing sixly acres, more or less, for the consideration of §3600, five hundred dollars to be paid ia cash on the fifteenth day of July then next, and $3100, the balance of the purchase money, to be secured by bond and mortgage, payable on the first of May then next, with interest from the first day of November. The contract is certain and fair in all its parts, and is fot 148 CASES IN CHANCERY. Hopper V. Hopper. an adequate consideration. The complainant was in no de- fault upon his part. He proffered himself ready and willing to perform the contract, according to its terms. He tendered a deed and the possession of the premises. He made prompt application for relief by filing his bill in this court. Under such circumstances it is as much a matter of course for courts of equity to decree a specific performance of the contract as it is for a court of law to give daraaires for the breach of it. Hall V. Warren, 9 Vesey 608; Greenaway v. Adams, 12 Vesey 395, 400; I Stonfs Eq, M\, § 751, § 771. It constitutes no objection to the relief prayed for, that the application is made by the vendor to enforce the payment of the purchase money, and not by the vendee to com{)el a delivery of the title. The vendor has not a complete remedy at law. Pecuniary damages for the breach of the contract is not what the complainant asks, or is entitled to receive at the hands of a court of equity. He asks to receive the price stipulated to be paid in lieu of the land. The doctrine is well established that the remedy is mutual, and that the vendor may maintain his bill in all cases where the purchaser could sue for a specific performance of the agreement. Lewis V. Lord Lechmere, 10 3Iod. 503 ; Walker v. Eastern Counties Railway Co., Q Hare 594 ; Fry on Spec. Per/., § 23. The only ground of defence suggested by the answer or by the evidence, is the inability of the defendant to perform the contract by making payment of the $500, agreed to be paid on the fifteenth of July. The allegation is, that he entered into the agreement in good faith, expecting to get the money from his wife to make the payment on the contract. That he Boon after ascertained that his wife would not let him have the money. That he had it not himself and was unable to get it of any one else, and was therefore unable to comply with his agreement. It appears from the evidence that the wife was aware of the husband's intention to make the pur- chase, that she, with her husband, visited and examined the premises, and that the final arrangement for the execu- tion of the contract was made in her presence and with her approbation. If the wife afterwards changed her miud and FEBRUARY TERM, 1863. 149 Hopper V. Hopper. refused to advance the funds to aid in making the purchase, there are strong reasons for believing that it was at the hus- band's instance and procurement. But if the fact be otherwise, and the truth be as alleged in the answer, that tlie wife re- fused to advance the money and the husband was unable to procure it elsewhere, it constitutes no defence to the bill. The case made by the answer is simj)ly inability on the part of the defendant to meet his en6.9, 2 i?ro. CA. i2. 115; 2 Story's Eq. Jur., § 1281, note 2 ; Duchess of Kingston's case, 2 Smith's Lead. Cases, 444, 7io;e; Kilheffer v. i/err, 17 ^Ser^. re a commissioner resident in the city of Philadelphia. This assignment and the acknowledgment are cancelled. The seals are torn off, the names are erased, and across the instrument are written the words, '' this assignment not consummated." Shoemaker, the mortgagee, testifies that at the date of the assignment to Rose, the complainant, he was the owner of the bond and mortgage, that they were in his possession, and that he had never before parted with their ownership. He admits the execution of tiie assignment upon the mortgage, but says that no consideration for the assignment was re- ceived, and that the mortgage was never delivered to Gibson ; that Gibson was his partner in the business of conveyancing, and tliat the sale was made to a third party, who requested the assignment to be executed to Gibson. This was done accordingly, but the consideration agreed upon was not paid, and the contract never consummated. It appears that on the eighteenth day of June, 1857, a bill was filed in this court in the name of Gibson, the assignee, which, so far as appears of record, is still pending. Shoe- maker testifies that he placed the mortgage in the hands of the solicitor for collection, employed him as counsel, and paid him a retaining fee; that he afterwards procured tlie mortgage from the solicitor, and made the assignment to the com[)lainant. In confirmation of this statement, the solicitor testifies that he was employed by Shoemaker to foreclose the mort- gage, and received a fee from him. That he filed the bill in MAY TERM, 1863. 187 Rose V. Kimball. the name of Gibson, because there was an assignment upon the back of it to him, tiien uncancelled. That the suit was subsequently discontinued, or agreed to be discontinued, at Shoemaker's request, to whom the solicitor delivered the mortgage, and received from him payment of the taxed bill of costs. The bill of costs as taxed and paid by Shoemaker, includes the costs of discontinuing the suit. The solicitor further testifies that he knew no other person in the business but Shoemaker. Tiiat Gibson left the bond and mortgage at his ofBce, saying that Shoemaker would call and instruct him what to do with them. That Shoemaker gave him the instructions to foreclose the mortgage, and that he did not know Gibson in the matter. That Shoemaker expressed sur- prise that the foreclosure was commenced in Gibson's name, and that the assigment upon the mortgage was cancelled by Shoemaker, on receiving it from the solicitor, and in his presence. The bill of costs, referred to by the solicitor, was taxed and filed on the eighteenth of July, 1857. The assignment by Shoemaker to Rose, the complainant, was executed and acknowledged on the fifth of August following, and recorded on the nineteenth of the same month. The instrument which is claimed to be an assignment from Gibson to Kimball, the defendant, bears date on the fifteenth of December, 1857, long after the assignment to the complain- ant had been recorded. Admitting therefore that he paid value for it, he took it with constructive notice of the as- signment to the complainant. He took the assignment under circumstances which, if not decisive evidence of a fraudulent purpose, at least atford the strongest evidence that the trans- action was not in good faith. The bond and mortgage were not in the hands, nor under the control of the assignor. The instrument of assignment is in the form of a notice to the solicitor, that Gibson thereby transferred all his interest in the mortgage for value received, and authorizes the transfer of the mortgage to Kimball, and the suit to be discontinued. When this instrument was in fact executed, does not appear 188 CASES IN CHANCERY. Rose V. Kimball. except from Gibson's own evidence. The subscribing witness is not produced. It was never acknowledged, but purports to have been recorded in the clerk's office of Camden county on the fourteenth of December, 1860, three years after its date. Kimball indeed swears that at the time of this assignment, the mortgage was in the hands of the solicitor, who was fore- closing it for Gibson. Now, not only the evidence of the solicitor, but the endorsements upon the mortgage itself, show that months previously, the mortgage had been de- livered by the solicitor to Shoemaker, and had been by him assigned and transferred to Rose, the complainant. Kimball does not pretend that he ever saw the mortgage in the hands of the solicitor, and there is no apparent reason why the solicitor should ever have made the statements which Kim- ball alleges he did make. The evidence of Kimball himself furnishes the strongest evidence, not only that the assignment from Gibson to hira was procured in bad faith, but that the consideration paid for it, if any thing, was merely nominal. The entire mort- gaged premises, consisting of over five hundred acres of land, were conveyed to Kimball for the sum of one dollar, and were expressly declared on the flice of the deed to be sub- ject to the complainant's mortgage. Haines bought the equity of redemption for one dollar. He now attempts to relieve the land from the burden of the mortgage for a nomi- nal consideration. There is not the least evidence in the cause, independent of the testimony of Gibson, whose evi- dence is totally unreliable, and of Kimball himself, tending to show that he paid one dollar consideration for the mort- gage. It is impossible to read Kimball's own evidence with- out a strong conviction that the consideration he paid was of no value. He testifies, indeed, that knowing all about the property, he gave $3,000 for the assignment, and yet proves by a witness, who is not contradicted, that the property is not worth half the money. Tiie evidence renders it very probable that the mort- gage was originally made and assigned for a dishonest MAY TERM, 18G3. 189 Kearney v. Macomb et al. purpose, but I see no reason for supposing that Kimball ever had the least title to it, in law or in equity, nor any ground upon which the title of the complainant can be impeached, or his right to relief questioned. AiiCHiBALD K. Kearney vs. Alexander S. Macomb and others. 1. Where the duly of a trustee is a matter of doubt, it is his undoubted right to ask and receive the aid and direction of a court of equity in the execution of his trust, 2. The familiar principle of the common law, that in the creation of an estate by deed the word "heirs" is necessary to pass the fee, has not been altered in this state by statute, nor has it been modified or relaxed by ju- dicial construction. No synonym can supply the omission of the word " heirs," nor can the legal construction of the grant be afiected by the intention of the parties. 3. An instrument conveying lands absolutely, not as security for money nor to be held in trust for its repayment, but in lieu of it, is a deed. No subsequent event can convert it into mortgage. 4. The heir-at-law of the testator, claiming a legacy under the will, and also claiming real estate as heir-at-law against the will, the will being in- operative as to real estate by reason of a defective execution, the heir will not be put to his election, but will take both the legacy' and the land. In such case the heir will not be required to give up the legacy, unless the legacy was bequeathed upon an expi'ess condition to give up the real estate. 5. A husband and wife by deed of trust, conveyed the legal title to certain real estate to the trustee /or life, and by the same deed in terms, constituted the trustee attorney irrevocable, in the name of the grantors, or either of them, in conjunction with the grantors, to convey the land. Held, that as respects the wife, the power as such was a nullity. She could not convey by letter of attorney. Also, that it can only serve as evidence of an intention on the part of the grantors, to confer upon the trustee a power of sale. Further, the trustee has no power of sale under the deed. By an antenuptial settlement, bearing date on the seventh of April, 1840, executed by and between Susan Kearney, of Vol,. I. M 190 CASES IN CHANCERY. Kearney v. Macomb et al. the first part; Alexander S. Macomb, her intended hushaiid, of the second part ; and Philip Kearney and Archibald K. Kearney, of the third part; the said Susan Kearney conveyed certain personal estate, and her' interest in the proceeds of certain real estate, unto the said Phili[) Kearney and Archi- bald K. Kearney, their executors, administrators, and assigns, upon the following trusts, viz. In trust (1) for the said Susan Kearney until her marriage. (2) From and after the sol- emnization of her marriage, during the joint lives of the said Susan and Alexander, to pay the income of the trust fund to the said Susan or her appointee, (o) Upon his death, if she survived her husband, to pay and transfer the said property to the said Susan. (4.) " And if it shall happen that the said Susan die before the said Alexander S. Macomb, her intended husband, then from and immediately after her decease to hold the said property so vested as aforesaid in the said trustees, in trust to pay, assign, transfer, and set over one equal half part thereof to the said Alexander S. Macomb, her intended husband, for his absolute use, and to pay, assign, transfer, and set over the other equal half [)art thereof to her father, the said Philip Kearney, his executors, administra- tors, or assigns, for his and their absolute use." Philip Kearney, one of the trustees, died on the tenth of April, 1849, leaving the complainant the sole surviving trustee under the settlement. He left Susan Macomb and Philip Kearney, his only children and heirs-at-law, surviving him. He left a will bearing date on the third of September, 1847, executed in the presence of two witnesses only, and therefore invalid to pass the title to real estate under the law of this state as it then was. The will was admitted to probate in the city of New York, the place of the testator's doraicil, on the eleventh of May, 1849. By his will he devised to his son Philip cer- tain real and personal estate in the states of Illinois and Wisconsin, adding, by way of explanation to the devise, this clause: "The above is given to my son as an equivalent to my homestead at Newark, which I had desired lo divide MAY TERM, 1863. 191 Kearney v. Macomb et al. between him and his sister, which he did not wish,- but pre- ferred this arrangement." In tiie closing clause of the will the testator adds : " My affection for my surviving children being equal, my desire has been to divide ray estate equally between them." The said Philip Kearney, in and by his said will, also de- vised to his executors the Kearney homestead in Newark, in this state, in trust for his daughter Susan, during her life; at her decease, " the use and occupation of the premises to be for the testator's brother Archibald, so long as he lives; at his decease for the benefit of Susan's children, and should her children die without leaving issue, then to the testator's near- est heir." The will devised a large amount of real estate in New York and elsewhere, to each of the testator's children, and is operative as to all the property devised, except the real estate in New Jersey, which, upon the testator's death, descended to and vested in his two children as tenants in common in fee. Being so seized, Philip Kearney, the son, by deed, bearing date on the sixteenth of July, 1850, conveyed and released the undivided half of the homestead property to his sister, Susan Macomb, in fee simple. Philip Kearney, the elder, one of the trustees named in the deed of settlement, appropriated to his own use a [)ortion of the trust fund, without the knowledge or consent of his co- trustee, whereby his estate became largely indebted to the trust. After his death, the said Alexander S. Macomb and Susan his wife, having received from the estate of the said Philip Kearney the amount so appropriated, and being de- sirous of investing the surviving trustee with property suffi- cient to make the original trust fund full, and having issue of their marriage two daughters, by deed bearing date oa the first day of November, 1850, after the said Susan be- came seized in severalty of the Kearney homestead, con- veyed to Archibald K. Kearney, the surviving trustee "his legal representatives and assigns forever," nine lots of land in the city of New York, together with the homestead at 192 CASES IN CHANCERY. Kearney v. Macomb et al. Newai'k, " to have and to hold the same and the proceeds thereof to the said Archibald K. Kearney, his legal repre- sentatives and assigns forever, upon the trusts and condi- tions mentioned and set forth in the said antenuptial con- tract, in lieu of the sum of $43,633 of the trust funds so approj)riated by the said Philip Kearney, as such trustee aforesaid." i The grantors in and by the said deed also constituted the grantee and his representatives their attorney and attorneys irrevocable, with power in the name of the grantors to exe- cute deeds for the said lots, with the usual covenants and warranty to carry into full effect and execution every contract which he or they might enter into for the sale of the said lots, or any of them. The lots in New York thus conveyed, have been sold by the trustee for about $65,000, so tiiat there remains in the hands of the complainant, as surviving trustee, funds to a much larger amount than were originally conveyed to him and Philip Kearney, in trust, under the antenuptial settle- ment, and more than the sum intended to be replaced in order to make the original trust fund full. On the twenty-ninth of April, 1852, Susan Kearney Ma- comb died intestate, leaving her surviving her husband, the said Alexander S. Macomb, and two daughters, both of whom, at the time of filing the bill, were infants. The Kearney homestead at Newark has greatly increased in value ; large assessments are about to be made upon it for paving, and other improvements. Tlie complainant has filed this bill to obtain the decision of questions which have arisen touching his interest and powers as trustee of the said property, and which the bill alleges it is necessary should be settled, to guide him in the execution of the trusts. Parker and Keashey, for complainant. Bradley, for defendants. MAY TERM, 1863. 193 Kearney v. Macomb et a'.. The Chancellor. Where the duty of a trustee is a matter of doubt, it is his undoubted right to ask and receive the aid and direction of a court of equity in the execution of his trust. The questions submitted in tiiis case for the determination of the court, affect not only tlie duty of the trustee within the acknowledged limits of the trust, and in regard to the trust estate, but they involve the title of the trustee to the property in question. As the decision there- fore seems of necessity to affect the rights of others who are not before the court, I have had some doubt as to the pro- priety of deciding those questions. But inasmuch as the de- cision is designed solely for the guidance and protection of the trustee, and as it will conclude the rights of those only who are parties to the proceeding, the points submitted ft)r the opinion of the court will be determined. 1. The deed from Alexander S. Macomb and Susan Kear- ney his wife to the complainant, as surviving trustee under the marriage settlement of the Kearney homestead, passed an estate for the life of the grantee only, and not the fee simple. The grant is to the said Archibald K. Kearney, " his legal representatives, and assigns for ever." The ha- bendum clause is, " to have and to hold * * to the said Archibald K. Kearney, his legal representatives and assigns for ever." There is no more elementary or familiar principle of the common law, than that in the creation of an estate by deed, the word " heirs" is necessary to make a fee. A grant to a man for ever, or to him and his assigns for ever, vests in him but an estate for life. Littleton, § 1 ; 2 Bla. Com. 107-8; 2 Crabb on Real Prop., § 955 ; ShepparcVs Touch. 86, 101-2 ; 2 Preston on Est. 11,12; 4 Kent's Com. 5, 6 ; 1 Washburn on Real Prop. 28 ; 2 Ibid. 621. The cases show. clearly that no synonym can supply the omission of the word "heirs," and that the legal construc- tion of the grant cannot be affected by the intention of the parties. The common law rule has not been altered in this state by statute. Nor has it been modified or relaxed by judicial 194 CASES IN CHANCERY. Kearney v. Macomb et al. construction. In the recent case of Traphagen & Adams v. Moss, decided by the Court of Appeals at November Term, 1860, the common law rule of construction was maintained in the learned and elaborate opinion of the Ciiief Justice, and adopted by the court. 2. The deed to the complainant recites the antenuptial settlement, the death of one of the trustees, the app.ropria- tion by him of $43,633 of the trust fund to his use, and tiie desire on the part of the grantors of investing the surviving trustee with property equal in value to the said sum of $43,633, in oi'der to make the original trust fund full ; and it conveys the propei'ty to be held "upon the trusts and con- ditions mentioned and set forth in the antenuptial contract, in lieu of the said sum of $43,633 of the trust fund so ap- priated by the said Philip Kearney, deceased, as such trus tee." The terms of the deed admit of no question as to the purposes for which the estate is conveyed. It is to be held upon the trusts and conditions set forth in the antenuptial contract. 3. The terms of the deed to the complainant are absolute. No proviso or condition is annexed to the grant. None can be implied from the recitals in the conveyance. It is true, the declared desire of the grantors was to invest the survi- ving trustee with property equal in value to $43,633, in order to make the original trust fund full. But the deed is an absolute grant of the lands conveyed " in lieu of the said sum of $43,633." Not as security for the said money, not to be held in trust for its repayment, but in lieu of it. There is no intimation of an intention that in any event, any part of the land conveyed should revert to the grantors. If in its inception it was a deed, no subsequent event could convert it into a mortgage. A mere advance in the value of the land conveyed, beyond the amount of the debt for which it was transferred as a substitute, could not produce that result. "What the value of the land conveyed was at the date of the conveyance, does not appear. At that time it might have been of equal value only with the amount in lieu of which it MAY TERM, 1863. 195 Kearney v. Macomb et al. was conveyed. And even if it was then of greater amount, there are obvious reasons why the grantors sliould have de- sired, or at least consented, that the diminution of the trust fund should have been more than replaced. Under the cir- cumstances, the conveyance and the trusts may have beeu alike injudicious and inexpedient. But the fee was in the grantors. They had a perfect right to dispose of it as they saw fit. Slat pro ratione voluntas. I think there is nothing in the recitals of the conveyance, or in the terms of the grant, to justify the court in treating the conveyance as a mere mortgage, or in ordering the re- conveyance of the homestead, upon the ground that the pur- pose of the conveyance has been answered by the lands al- ready sold. 4. But it is urged that although the will is invalid and inoperative to pass land in this state, yet if the son and daughter of the testator, who are devisees under the will, would avail themselves of other parts of it, they must con- sent to carry out the devise in regard to this land also. They are put to their election to stand by the will in omni- bus, or not to claim under it at all. And inasmuch as the land is, by the will of Philip Kearney, devised to his executors in trust for certain purposes in the said will specified, and the heirs-at-law have certain real estate elsewhere devised to them in said will, which they have elected to take, they are bound to permit the title of the Newark property to pass to the trus- tees for the purposes specified in the will. The doctrine of election is founded upon the principle that a person shall not be permitted to claim under any instru- ment, whether it be a deed or will, without giving full effect to it in every respect, so far as such person is con- cerned. And the ground upon which courts of equity interfere is, that the. purposes of substantial justice may be obtained by carrying into full effect the whole intentions of the testator. 1 Jarman on Wills 385 ; 2 Roper on Log, 1567 ; 2 Story's Eq. Jar., § 1075-7. Where the devise is valid, but inoperative because the title 196 CASES IN CHANCERY. Kearney v. Macomb et al. is not in the devisor but in the devisee, the application of the principle is clear. But where the devise is invalid because not a good execu- tion of the power to devise, or because of the infancy of the devisor, or because the will is not duly executed to pass real estate, the heir-at-law may take both the land devised and also the legacy. In Hearle v. Greenbank, 1 Vesey, sen., 298, Lord Hardwicke said : " The infant is not obliged to make her election, for here the will is void ; and when the obliga- tion arises from the insufficiency of the execution or invalidity of the will, there is no case where the legatee is bound to make an election, for there is no will of the land. A man devises a legacy out of land to his heir-at-law and the land to another; the will is not executed according to the statute of frauds for the real estate ; the court will not oblige the heir-at-law, upon accepting the legacy, to give up the land." In such case the heir will not be required to give up the leg- acy, unless the legacy was bequeathed upon an express condi- tion to give up the real estate. BougJiton v. Boughton, 2 Vesey, sen., 12. In Cai-ey v. Askeiv, cited 8 Vesey 492, 497, Lord Kenyon said : "The distinction was settled, and was not to be unsettled, thit if a pecuniary legacy was bequeathed by an unattested will, under an express condition to give up a real estate, by that unattested will attempted to be disposed of, such condi- tion being expressed in the body of the will, it was a case of election; as he could not take the legacy without complying with that express condition. But Lord Kenyon also took it to be settled as Lord Hardwicke had adjudged, that if there was nothing in the will but a mere devise of real estate, the will was not capable of being read as to that i)art ; and unless, according to an express condition, the legacy was given so that the testator said expressly the legatee should not take unless that condition was complied with, it was not a case of election." The principle was affirmed by Lord Eldon as a long settled doctrine, in Shcddon v. Goodrich, 8 Vesey 482. MAY TERM, 1863. 197 Kearney v. Macomb et al. The doctrine of these cases is, that tlie heir-at-law of the testator claiming a legacy under the will, and also claiming real estate as heir-at-Iavv aijainst the will, the will heino: in- operative as to real estate by reason of a defective execntion, the heir will not be put to his election, but will take both the legacy and the land. In such cases " the heir is allowed to disappoint the testator's attempted disposition by claiming the estate in virtue of his title by descent, and at the same time take his legacy on the ground that the want of a due execution precludes all judicial recognition of the fact of the testator having intended to devise freehold estates; and therefore the will cannot be read as a disposition of such estates for the purpose even of raising a case of election as against the heir." 1 Jarman on Wills, {ed. 1849) 389; 1 Dev. & Bat. Eg. 634 ; 4 Dess. Ch. li. 274 ; 1 Lead. Cases in Eq. [M ed.) 404. Upon the well settled doctrine of the court of equity, this is not a case in which the heir could be put to his election if all the property aifected by the will were within the juris- diction and under the control of the court. There is no condition annexed to the devise to the heir-at-law, either express, or by necessary implication. It is no will of land in this state. The will is not executed and attested according to our law, and can create no case for election as to lauds here, from implication. Jones v. Jones, 8 Gill 197. If the doctrine of election is at all applicable under the terms of the will, it would seem proper to be aj)p]ied in the tribunals of those states where the heir shall claim by virtue of the devise. If he claim under the will he may be put to his election, but how shall he be put to his election when he claims as heir-at-law, there being no valid will in existence by which the title to the property can be affected. Philip Kearney, the elder, died intestate as to his real estate in New Jersey. Upon his death it descended to his children, Philip Kearney and Susan Macomb, as tenants in common in fee. Upon the conveyance and release by Philip Kearney of his interest to his sister, she became seized of 198 CASES IN CHANCERY. Smith V. Vreeland et al. the whole estate in severalty. The deed from Alexander Macomb and wife to the complainant conveyed a life estate only. That estate he holds, according to the exi)ress terms of the grant, upon the trusts and conditions of the ante- nuptial contract, and not upon the trusts contained in the will of Philip Kearney, the elder. Tlie deed is very peculiar in its structure. It conveys the legal title to the tinistee, and then in terms constitutes him the attorney irrevocable of the grantors, in the name of the grantors or either of them, in conjunction with the grantors, to convey the land. As respects the wife, the power as such was a nullity. She could not convey by letter of attorney. Adni'rs of Earle v. Earle, Spencer 360. This clause of the deed can only serve as evidence of an intention on the part of the grantors to confer upon the trustee a power of sale. But then the conveyance should be executed in substantial conformity with the power. I in- cline to the opinion that the trustee has no power of sale under the trust deed. If a sale becomes necessary or expe- dient for the interests of the cestui que tnosts or for the pro- tection of the trust property, it would be advisable tliat tiie sale should be made under judicial sanction. Cited in Att\j Gen'l v. Moore's Ex'rs, 4 C. E. Gr. 519 ; Wellei- v. Rolu- son, 2 a E. Gr. 17. ChA-RLES J. Smith vs. George Vreeland and wife and . others. 1. A gift of money to a married woman in 1848, being made without a settlement upon her, as well as her earnings during coverture, are the property of the husband. 2. A voluntary conveyance to a married woman b}' her husband, while he is embarrassed by debts, is fraudulent and void as against creditors. 3. £]quity will protect the title of a bona fide purchaser for value, with- out notice of fraud, though he purchase from a person with notice. 4. A purchaser with actual or constructive notice of fraud, though he pay a valuable consideration, takes title subject to all the equities to which it was liable in the hands of the vendor. In such case he will not be per- MAY TERM, 1863. 199 Smith V. Vreeland et al. mitted to protect himself against such claims, but his own tiile will be post- poned and made subservient to them. 5. A purchaser is presumed to have knowledge of all the facts disclosed by the deeds under which he claims title. 6. A purchaser cannot claim to be a bona fide purchaser wiiliout notice, where the facts patent upon the face of his title and under his immediate observation, are sufficient to put him upon inquiry. 7. Where a creditor comes into equity to remove fraudulent encum- brances or conveyances out of the way of his execution at law, the effect of the decree is simply to declare the creditor's claim an encumbrance upon the property, ii preference to the fraudulent encumbrance or alienation. 8. Where a party has proceeded to a sale under his execution at law, and become himself the purciiaser of the property for a very inadequate consideration, the court will not set a-^ide the prior conveyances, and perfect the title under the execution, to the prejudice of other judgment creditors. All that the complainant can ask in equity is the payment of his debt. If his legal rights are more extensive, they must be enforced at law. Tlie case was disposed of upon final hearing upon tlie bill, answer and proofs. Weart, for com])]ainant, cited 1 Story's Eq. Jar., § 408, a, and note 5; Dunlap's Paley's Agency, [Ath Am. ed.) 262 and notes ; Darfs Vendor ( Waterman) 404, 408, note 1, 407, note 2 ; Newhirk v. 3Iorris, 1 Beas. 64 ; Eameston v. Lyde, I Paige 637 ; Journeay v. Brown, 2 Diotcher 111; Ednnirds on Receivers 362; 2 Barb. Ch. Pr. 157; Corning v. White, 2 Paige 567 ; McDcrmuti v. Strong, 4 Johns. Ch. R. 687 ; Wilson V. Allen, 6 Barb. S. C. R. 545. Fleming, for Vreeland and wife, cited Roberts on Fraud. Con., ch. 4, § 10, p. 497 ; Disborough v. Outcalt, Saxton 298 ; Broom's Leg. Max. 561 ; Jones v. Naughright, 2 Stocht. 301 ; Halsted v. Davison, Ibid. 295; Garr v. Hill, 1 Ibid. 215; Owen V. Arvis, 2 Dutcher 43 ; Hendricks v. Mount, 2 South. 743. Slaight, for Mrs. Scott. The Chancellor. The bill is filed by an execution credi- tor of David Scott, to set aside as fraudulent certain convey 200 CASES IN CHANCERY. Smith V. Vreeland et al. ances, by which the legal title to the real estate of the debtor was transferred to Vreeland. The jiidginents were originally obtained by Abraham T. Russell, upon two promissory notes made by Seott to Stephen W. Smith, and by him endorsed to Russell. The notes were given for debts due from Scott to Smith, and were discounted by Russell fur the accommodation of the endorser. The judgment being unsatisfied, and Smith being liable as en- dorser for the debt, procured his brother, Charles J. Smith, to advance the money, and take an assignment of the judg- ment in his own name. Had the debt been paid by the en- dorser he would have been entitled in equity as surety, to all the securities held by the creditor against the debtor. If it be true as alleged in the answer, that Stephen W. Smith is the real complainant, striving to secure the payment of a debt from his debtor, he is clearly entitled to the benefit of the judgment, Charles J, Smith, the assignee of the judgment, is the owner in equity, and entitled to the saax? protection as the original plaintiff in the judgment. It is immaterial, therefore, which of the parties is the real complainant in the cause. The suit is obviously for the benefit of the endorser. The defence set up by Scott and wife in their answer, cannot be sustained. When the suit was commenced against Scott, upon wliich the first judgment was recovered, he was the owner of considerable real and personal estate, and was em- barrassed by debts, if not actually insolvent. On tiie twenty- second of September, 1860, the day on which the summons was returnable, lie conveyed the real estate in question to David Bedford, by deed with covenants of general warranty, the wife joining with her husband in the conveyance. On the eighth of October, Bedford and wife reconveyed the premises to the wife of Scott. The consideration expressed in both deeds was $4000, It is admitted by the answer that no consideration whatever was paid for either conveyance. The deeds were purely voluntary. Bedford admits that he had no interest in the j)remises. He took title merely for the benefit of the wife. This transaction is attempted to be MAY TERM, 1863. 201 Smith V. Vreeland et al. justified by the allegation that in 1848, the wife received about $500, as a gift from her mother, with which, for about seven years, she carried on the millinery business in her own name and on her own account, and was therel)y enabled to advance money to her husband, with which the property in question was purchased. There is no evidence whatever in support of this allegation. If it were fully proved it con- stitutes no defence. The gift to the wife in 1848, being made without a settlement on the wife, as well as the earivjngs of the wife during coverture, are the property of the husbantl. A conveyance of the property to her, while the husband is embarrassed by debts, is fraudulent and void as against creditors. The subject was under consideration in the case of Be/ford v. Crane, decided at the present term, and in SkiUmcni v. Skill man, 1 Beas. 403. It did not seem to be seriously contended by counsel upon the argument, that this title in Mrs. Scott was valid as against the creditors of the husl)and. But it was urged that Vreeland was a bona fide purchaser for value, without notice of the fraud, and that his title was therefore valid. The principle that a bona fide purchaser for value, without notice of the fraud, may protect his title, though he purchase from a person with notice, is too clearly established to admit of question. 1 Slorys JEq , § 409, 410. But the princij)le is equally clear, that if he purchase with actual or constructive notice of the fraud, though he pay a valuable consideration, he takes title, subject to all the equiti.'s to which it was liable in the hands of the vendor. In such case he will not be permitted to protect himself against such claims, but his own title will be postponed and made sub- servient to them. 1 Sto7-y's Eq., § 395. Vreeland claims title under the wife, not under the hus- band. The purchase was made (so the answer alleges) from her. The husband was induced to join in the deed, merely because the deed of the wife without his consent, was void. He cannot make out his title but through the deed from Scott and wife to Bedford, and from Bedlbrd back to Mrs. Scott, 202 CASES IN CFIANCERY. Smitli V. Vrecland et al. and he is presumed to have knowledge of all the facts which those deeds disclosed. 1 Ston/s Eq. Jar., § 400. He knew then that this j)i'o|)erty had been conveyed from Scott to Bedford for the alUged consideration of $4000, and immediately thereafter reconveyed from Bedford to the wife for the same consideration. He knew that when the deed from Scott to Bedford was executed, Scott was overwhelmed with debt. Vreeland himself was among the number of his creditors. He knew that Mrs. Scott had no means of pay- ing $4000 for the property. He was familiar with the condi- tion of her affairs, and had from time to time, before the ex- ecution of the deed, been advancing money at her instance to redeem the property from sales made for payment of taxes and assessments. He had, at her instance, purchased a mortgage u|)on the property, which was being pressed for payment. He knew that the deed from Scott to Bedford was promptly placed upon record, and that the reconveyance from Bedford to the wife was not recorded. It was in fact })laeed upon record at the same time with the deed from the wife to Vreeland. He is presumed to have known these facts, because a purchaser has no right, where the interests of others are involved, to close his eyes to facts patent upon the face of his title and under his immediate observation. They were at least sufficient to have put him upon inquiry, and to deprive him of the character of a bona fide })urchaser without notice. It cannot be, where a husband on the eve of insolvency, pressed by his creditors, with actions pending against him, conveys to a third party who conveys directly back to the wife for the same alleged consideration, that a purchaser with knowledge of these facts can claim to be a bona fide purchaser without notice. The case is greatly strengthened when the purchaser appears to be a relative and friend of the wife, who claims that the legal title was made to her for the mere purpose of perfecting a previous equitable interest. It seems in the highest degree improba- ble that the purchaser should not have been fully acquainted MAY TERM, 1863. 203 Smith V. Vreeland et al. with tlie real character of the deed from Bedford, and with the nature of the wife's title. That Scott and his wife designed to {)rotect this property from the husband's creditors, is abundantly evident. It is in fact avowed and attempted to be justified by their answer. There is persuasive evidence that there was complicity in this design between Vreeland and the Scotts. The judg- ment to Vreeland was confessed, and an execution levied upon the defendants' personal property, while the complain- ant's suit was pending. After the complainant's execution was issued, the entire personal property was sold and pur- chased by Vreeland, the proceeds being applied toward the satisfaction of the execution. On the first of March follow- ing, the property thus purchased was transferred to Mrs. Scott for $850. The execution remained unsatisfied, no steps apparently having been taken by Vreeland to secure the balance of his debt. Ou the twenty-first of May, on the petition of the plaintiff in the complainant's judgment, an order was made by the judge of the Hutlson Circuit for the examination of Scott, uudor the act to prevent fraudulent trusts and assignments. Of that fact the attorney of Vree- land had notice. The fact was immediately communicated to the attorney of Scott. The order was served on Scott on the twenty-second of May, but he failed to appear to be ex- amined. Bedford, to whom Scott had conveyed, was ex- amined ou the twenty-ninth of May. On the twenty-eighth, the very day before his examination and the disclosure of the fact that the conveyance to him from Scott, and the re- conveyance to Mrs. Scott, were voluntary, Scott and wife conveyed to Vreeland. The deed is dated on the preceding first of March, so as to appear to have been executed pre- vious to the institution of proceedings against Scott for fraud. Notwithstanding the denials of the answer, it is difficult to reconcile these facts with the idea of good faith on the part of Vreeland in taking title. I have had much difficulty in regard to the proper relief to be administered. It is usual for creditors, after exhaust- 204 CASES IN CHANCERY. Smilli V. Vreeland et al. ing their legal remedy against jiroperty, the legal title to which is in the defendant, to come into equity to remove fraudulent encumbrances or conveyances out of the way of execution at law. In such case, the effect of the decree is simply to declare the creditors claim an encumbrance upon the property, in preference to the fraudulent encumbrance or alienation. But in this case the complainant, proceeding on the assumption that tlie conveyances which he now seeks to avoid were null and void, has proceeded to a sale under his execution at law, although the title had been conveyed out of the defendant in execution, and has himself become the purchaser for a very inadequate price. He now asks this court, by its decree, to declare the previous conveyances fraudulent, and thus confirm his title. The balance due on his judgments at the time of the sale, amounted to about $300. The value of the property, according to the testimony of his witnesses, was $3000, exceeding by about $1300 the amount of the encutubrances upon il. The defendant is also a judgment creditor, having a balance due on his judgment of over $600, double the amount of the debt dye to the cora- plainanant. The bona fides of this judgment has not beea called in question. The property is sufficient, according to the evidence, to satisfy both judgments. All that the com- plainant can ask in equity is, that his debt shall be paid. If his legal rights are more extensive they must be enforced at law, without the aid of this court. Though he has acquired a legal advantage over the prior judgment of the defendant, there is no reason why he should be permitted to speculate upon that advantage at the expense of the defendant. After the complainant's debt is satisfied, the balance of the debtor's property should in equity be applied to satisfy the debt due to Vreeland. The legal fraud imputed to him involves no moral tur- pitude. He may have been prompted by honest motives in his attempt to shield property to which the wife claimed title, against the claims of the husband's creditors. All that the complainant can demand is, that his judgment shall con- MAY TERM, 1863. 205 Sayre et al. v. Fredericks et al. stitute a lien upon the property in the hands of Vreeland. Upon that cluim being satisfied, his title to tiie property should he surrendered. If the claim of the complainant be not satisfied, the property will be decreed to be sdhl, subject to legal encumbrances, and the proceeds ap{)lietl to satisfy first the judgment of the complainant, and then the judgment of Vreeland. Cited in Van Keuren v. McLaiujhlin, 4 C. E. Gr. 193. William R. Sayre and others vs. Nicholas J. Fredericks and others. 1. The eleventh section of the "act for the prevention of frauds and per- juries," Nix. Dig. 330, requiring trusts to be in writing, in terras applies only to trusts of ZancZs. It does not extend to trusts of persona//^/. 2. A mortgage of land is a mere security for the payment of the debt, and is not a conveyance within the statute of frauds, so a.s not to be as- signable without writing. 3. A mortgage given to secure a del)t to other persons than the mort- gngee, operates as a resulting trust, by implication of law, in their favor, which is expressly excepted from the operation of the statute. 4. Parol evidence, to raise an express trust upon the terms of a written instrument, is received with great caution, and must be very clear to war- rant a court in establishing the trust. 5. Whether a conveyance be fraudulent or not, depends upon its being made upon good consideration and bona fide. If it be defective in either particular, although valid between the parties and their representatives, it is void as to creditors. 6. A denial by the answer of the existence of fraud, will not avail to disprove it, where the answer admits facts from whicli fraud follows as a natural and legal, if not a necessary and unavoidable conclusion. Keasbey, for complainants, cited Nix. Dig. 330, §11; Knight y. Packer, 1 Beas.'2\\; Emerick v. Harlan, Ibid, 229 ; Owen v. Arvis, 2 Butcher 22. Rumjon, for defendants. Vol. i. k 206 CASES IN CHANCERY. Sayre et al. v. Fredericks et al. The Chancellor. The complainants are execution credi- tors of Nicholas J. Fredericks upon three several judgments, amounting to about $500. When these debts were incurre-d, the debtor owned real estate in Newark to the value of about $3000, subject to encumbrances amounting to ^1200. After the first suit was instituted, and before judgment was re- covered, the debtor mortgaged the land to Eify Clark for $1248, and conveyed the fee to Daniel F. Conklin, tlie other defendant, for the alleged consideration of $350. The bill charges that the mortgage and the deed are fraudulent and void as against creditors. The answer denies the fraud, and alleges that the mortgage was given in trad to secure debts due from the mortgagor to the heii'S of his father, and that the deed was given in payment of a debt due from the grantor to the grantee. It is objected that the trust is not in writing, and there- fore void under the eleventh section of the act for the pre- vention of frauds and perjuries. Nix. Dig. 330, § 11. The statute in terms applies only to trusts of lands. It does not extend to trusts of personalty. Nab v. Nah, 10 Mod. 404 ; Roberts on Frauds 94. The debt is the subject of the trust. The mortgage \i a mere security for the payment of the debt. The assignment of the debt carries with it the mortgage as a consequence. A mortgage of land is not a conveyance within the statute of frauds, so as not to be assignable without writing. Martin V. Mowlin, 2 Burr. 969 ; Browne on Stat, of Frauds 65 ; 2 Story's Eg. Jur., § 1016 ; 4 Kent's Com. 159. If the mortgage was in fact given to secure a debt due to other persons than the mortgagee, there would be a resulting trust by implication of law in their favor, which is expressly excepted from the operation of the statute. Ni.v. Dig. 330, §12. Mr. Eden, in his note to Fordi/oe v. Willis, 3 Brown s Ch. R. 588, states that declarations of trust of personal })roperty are in the same situation as all declarations of trust were before the statute. But that he has not been able to find an MAY TERM, 1863. 207 Sayre et al. v. Fredericks et al. instance of a declaration of trust of personal property, evi- denced only by parol, having been carri-ed into execution. And although the statute does not extend to trusts of per- sonalty — and although it is at this day well settled that trusts by implication may, by parol, be engrafted u})on a written instrument against the terms of the deed itself, parol evidence, to raise an express trust upon the terms of the instrument, is received with great caution, and must be very clear to warrant a court in establishing the trust. Fordyee v. Willis, 3 Bro. Ch. R. 577 ; Eobeiis on Frauds 94 ; 4 Kent^s Com. 305 ; 1 Greenl. Fv., § 266. The mode of establishing the trust is obviously a question which concerns the trustee and cestui que trust rather than a stranger, and with which the creditor in this case has in fact no concern, save as it may incidentally affect the question of the bonajides of the conveyance. Nor can the mortgage be assailed by the creditor on the ground that it is in the nature of an assignment for the pay- ment of debts, and therefore void, inasmuch as it prefers certain creditors over others. The real question in the cause is, whether the conveyances were made in good faith, or whether they were designed to protect the debtor's property from his other creditors, and on that account fraudulent and void. The case rests entirely upon the answer of the de- fendants — the debtor and his alienees, and the testimony of the debtor himself. The admitted facts are, that the mort- gage and the deed were made upon the same day, and that they covered the whole of the defendant's real estate. The personal estate was covered and subsequently exhausted by executions issued upon confessed judgments. At the time of the conveyance a suit by the complainants was pending against the debtor for the recovery of a part of their debt. The debtor was insolvent. The mortgage was made to his sister. The deed to his brother-in-law. The mortgage was given in terms to secure a debt of $1248, due to the mort- gagee. The instrument is silent as to any trust. The answer 208 CASES IN CHANCERY. Sayre et al. v. Fi*edericks et al. admits that no such debt was due to the mortgagee. It sets up, by way of consideration for the mortgage, that it was in fact given in payment of a debt due from the mortgagor to his brotiiers and sisters, being the proceeds of the sale of a tract of land belonging to their father, which had been sold by the mortgagor, and the proceeds never accounted for to the heirs-at-law. That sale was made in 1843, eighteen years and six months before the mortgage was given. The land sold for $700. The mortgagor, as one of ti)e heirs, was entitled to one seventh of the amount. The mortgage was given for the residue of the proceeds of the sale, with eigh- teen years and six months interest, no deduction appearing to have been made for commissions, or for the costs and ex- penses of the sale. No settlement of the account had ever been made. The amount due the heirs had never been as- certained. There was no written recognition of the existence of the indebtedness. No payment had ever been made on account of it. When the mortgage was given, no receij)t or discharge for these claims was given by the mortgagee to the mortgagor. The other heirs, for whose benefit the mortgage is pretended to have been given, were not present. They lived, many of them, in remote parts of the country. They were not consulted in regard to it. They had no knowledge of the transaction, and, so far as appears, were never notified of the alleged trust in their behalf. Their rights were in no wise protected or even recognized by the terms of the mort- gage. One of the heirs was dead, leaving infant children. No provision was made by which their rights could be ascer- tained or enforced. Tlie arrangement was made under the advice of counsel. Admitting the competence of parol evidence to establish the trust, what evidence could have been produced to over- come the terms of the deed, sustained by the evidence of the mortgagor? What honest trustee would have consented to accept a trust upon such terms ? What intelligent counsel would have advised or sanctioned it? Is it credible that MAY TERM, 1863. 209 Sayre et al v. Fredericks et al. such a transaction ever could have occurred, with or with- out the sanction of counsel, if" it were designed in good faith to secure dehts due to the heirs? May it not safely be assumed, not only as probable but as certain, that no such idea was in contemplation at the time of the execution of the mortgage? The deed contemporaneously made to the brother- in-law of the debtor, was for the alleged consideration of $350. The real consideration is admitted to have been a promissory note of the debtor to James Conklin, bearing date on the tenth day of July, 1852, for $228.21, with interest from date. No payment of principal or interest had been made on account. The evidence shows that it had long been regarded as of no value. The grantee had no need for the premises and no desire to purchase. The grantor had no desire to sell or to part with the possession of the property. He in fact continued to occujiy it after the sale, as he did before. It is difficult to conceive of a case having more unequivocal badges of fraud. It is impossible, I think, to look at the admitted facts of the case without a conviction that the con- veyances of the property by the debtor were not made in good faith for the purpose of paying his debts, but were de- signed to protect the property from the claims of other creditors. It is no answer to say that debts barred by the statute of limitations may constitute a valuable consideration for a con- veyance. The real question is, whether the transaction was in good faith. If it was noj^ it is no matter what the con- sideration was. Whether a conveyance be fraudulent or not, depends upon its being made upon good consideration and bona fide. It is not sufficient that it be upoft good consid- eration or bona fide; it must be both. If a conveyance be defective in either particular, although valid between the parties, and their representatives, it is void as to creditors. 1 Story's Eq. Jar., § 353. Nor does it at all militate against this conclusion that the answer denies the existence of fraud. Constructive fraud is 210 CASES IN CHANCERY. Diercks v. Kennedy. not a fact, but a conclusion of law from ascertained facts. Although the answer denies the fraud, it nevertheless admits facts from which the existence of fraud follows as a natural and legal, if not a necessary and unavoidable conclusion. The complainants are entitled to relief. Cited in Cutler v. Tultle, 4 C. E. Gr. 560. Peter F. Diercks vs. Samuel Kennedy. 1. It is no valid objection' to a defence of usun', that the mortgage sought to be foreclosed was given for a part of the purchase money upon a contract for the sale of land, and not for a technical loan of money. 2. The taking of illegal interest, either upon a lending of money, or upon the forbearance of a debt, constitutes usury. 3. The forbearance, or giving time for the payment of a debt, is in sub- stance a loan. 4. Where the contract upon its face is strictly legal, it will not be pre- sumed that the parlies had in contemplation an illegal stipulation. 5. Where a debtor wilfully admits a greater liability than actually exists, or conceals the equity or defence on which he subsequently relies, such concealment or admission will be absolutely conclusive in favor of an assignee, if acted on by hini in accepting the assignment. Beasley, for complainant. Williamson, for defendant. Cases cited by complainant's counsel. McMurtry v. Give- ans, 2 Beas. 261 ; Melntyre v. Parks, 3 Melc. 207; 2 Par- sons 2>^4i; Flo'per V. Edwards, Cowper 112; Peete v. Bid- good, 7 Barn, & Cress. 453 ; Va7i Schaick v. Edwards, 2 Johns. Cas. 355 ; Bank of United States v. Waggener, 9 Peters 401 ; Durant v. Banta, 3 Butcher 624; Tate v. Wel- lings, 3 T. R. 538 ; Barclay v Walmsley, 4 East 55 ; Brooks V. Avery, 4 Comst. 225 ; Berry v. Walker, 9 B. Mon. 464 ; Shirkey V . Hunt, 18 Texas 8S3 ; Hoyt v. Bridgewater Cop- per 3Iining Co., 2 ITalst. Ch. R. 253 ; Ibid. 625 ; 3 Lead. MAY TERM, 1863. 211 Diercks v. Kennedy. Cases in Eq. 370; Petrie v. Feeler, 21 Wead. 172; Watson's Ex'rs V. McLaren, 19 Wend. 557; Davison v. Franklin, 1 ^ar?i. tt" Ad. 142 ; 1 SW^/'s £"^7. /(«-., § 191-2-3 ; Ross v. Elizabeihtown and Somerville R. R. Co., 1 Green's Ch. R. 434; Berrisford v. Milward, 2 ^4^^. 49 ; E't^si /nc/ta Co. v. 'P7wce7i<, J6i(/. 83; Ilobbs v. Norton, 1 Fe/'u. 136; Moeaita V. Murgatroyd, 1 P. IF. 392 ; Wendell v. Fan Rensselaer, 1 John. Gh. R. 353 ; Parshall v. Lamourenx, 1 1 ^jn. Zaw i^f//. 186, (/an. 1863). The Chancellor. The only defence to the suit is that the mortgage sought to be foreclosed is usurious. It is no valid objection to the validity of the defence th.it the mort- gage was given for a part of the purchase money, upon a con- tract for the sale of land, and not for a technical loan or lend- ing of money. Usury, according to Sir Edward Coke, is a contract upon a loan of money, or giving days for forbearing of money, debt, or duty, by way of loan, chevisance, shifts, sales of wares, or other doings whatsoever. 3 Inst. 151, c. 70 ; Gomyn on Usury 1. The taking of illegal interest, either upon a lending of money or the forbearance of a debt, constitutes usury. The forbearance or giving time for the payment of a debt, is in substance a loan. Spurrier v. Mayoss, 1 Vesey 531 ; Dewar V. Span, 3 Term R. 425 ; Van Schaick v. Edwards, 2 Johns. Gas. 355. That this is the legislative construction of our statute in re- gard to usury, is very clear from the language of the various enactments upon the .subject. The original act against usury, Nix. Dig. 401, § 1, prohibits the taking of more than six per cent, only uj)on a contract for loan of money, wares, &c. The various supplements to the act authorizing a higher rate of interest, include in terms not only a loan, but also " the forbearance or giving day of jv.iyment for any money, wares," &c. Nix. Dig. 402, § 7, 8 ; Pamph. L. 1858, 34. If the original act had not been understood to include the 212 CASES IN CHANCERY. Diercks v. Kennedy. forbearance or giving day of payment for a debt, ti)e phrase- ology of the supplements would iiave been superfluous and unmeaning. In this case moreover, the rate of interest forms no part of the contract for the exchange of lands. The written con- tract stipulates merely for the giving of mortgages. It is silent both as to the time of payment and the rate of inter- est. The written contract cannot be changed by parol ; much less will it be presumed, where the contract upon its face is strictly legal, that the parties had in contemplation an illegal stipulation. The mortgagee testifies that there was a parol agreement made between himself and the mortgagor, that seven per cent, interest should be paid upon the mort- gage. This verbal contract was made in the county of Union. I find no evidence whatever to show where the bond and mortgage were executed. If the parol agreement to take in- terest at the rate of seven per cent, was made in the county of Union, where the mortgagor resided, and the bond and mortgage were executed there, the contract is clear of usury. McMurtry v. Glveans, 2 Beas. 351. The legality of the mortgage cannot be impaired by the fact that the written contract for the exchange of lands was executed elsewhere. I think, therefore, that there is an entire failure of evi- dence to show that the contract is usurious. But admitting the mortgage to have been tainted with usury, can the de- fendant avail himself of the defence ? Upon the assignment of the mortgage by Riggs, the origi- nal mortgagee, to Diercks, the complainant, the mortgagor gave a written certificate that the mortgage was a good and valid lien upon the premises ; that it was given tor a part of the purchase money, and that there then existed no legal or equitable defence thereto. Upon the faith of that represen- tation the complainant took an assignment of the mortgage. There is no pretence that he was aware of the invalidity of the contract. The defendant is estopped in equity by his own representation from setting up the defence of usury. 1 MAY TERM, 1863. 213 Way V. Bragaw et al. Where a debtor wilfully admits a greater liability than actually exists, or conceals the equity or defence on which he subsequently relies, such concealment or admission will be absolutely conclusive in favor of the assignee, if acted on by him in accepting the assignment. Davison v. Franhlm, 1 Barn. & Ad. 142; Watson's Ex'rs v. McLaren, 19 Wend. 657; 3 Lead. Cases in Eq. [Am. ed., 185S,) 370, and cases there cited. In accordance with this principle, it was held by the Su- preme Court of xsew York in ParshaU v. Lamoureux, that if the holder of a note, on the occasion of its sale and trans- fer, represents to the purchaser that it was given for a valu- able consideration, and the i)urchaser takes it upon the faith of such representation and in ignorance of the fact that the note has never had a legal existence, the holder will be es- topped from availing himself of the defence of usury. 37 Barb. 189 ; Amer. Law Reg. for January, 1863, j). 186. The principle upon which this doctrine rests admits of a much broader application and is founded upon the clearest equity. 2 Smith's Lead. Cases, [Am. ed., 1844,) 467 ; 1 Story's Eq., § 191-3. The complainant is entitled to a decree. George M. Way vs. Isaac A. Bragaw and others. 1. A bill filed to obtain satisfaction of a judgment at law is not 'demur- rable on the ground of multifariousness, because it seeks to remove fraudu- lent conveyances and encumbrances, and also to bring witliin tbe reach of the judgment, equitable interests which are not the subjects of execution at law. 2. Where the case made by the bill is so entire, that it cannot be prose- cuted in several suits, and yet each of the defendants is a necessary party to some part of the case as stated, neither of the defendants can demur for multifariousness or for a misjoinder of causes of action, in some of which he has no interest. 3. Where a judgment creditor files a bill in equity to obtain aid in en- 214 CASES IN CHANCERY. Way V. Bragaw et al. forcing the payment of his judgment at law, it is no ground of demurrer that other creditors, not in equal degree, are not made parties to the bill. 4. A plea of another suit depending for the same cause in bar of a suit in equity, can only be of a suit depending in the same, or in some other court of equity. 5. AVhere a suit is pending for the same cause in a court of law, all that the defendant can ask, is an order putting the complainant to his election, whether he will proceed at law or in equity. 6. The complainant will not be put to his election, unless the suit at law is for the same cause, and the remedy afforded co-extensive and equally beneficial with the remedy in equity. ParheVy for defendants, in support of the demurrer, as to the question of naultifariousness, cited Story's Eq. PL, § 271- 286-530-540-747 ; Fellows v. Fellows, 4 Cowen 682 ; Brhik- erhoff V. Brown, 6 Johns. Ch. B. 139. Beasley, for complainant, contra. As to multifariousness. Attorney General v. Corporation of Poole, 4 Mylne id. 85; French v. Sholwcll, 6 Ibid. 235. Whether the judgments are irregular or erroneous, are ex- clusively questions of law. So long as they remain in force, they must be received in this court as valid. It was s'jggested upon the argument that this court would at least give to the complainant an opportunity of having these questions tested at law. This course the complainant may adopt of his own volition, without the assent or direction of equity. And if the judgments are opened or reversed at law, he will not re- quire the further aid or direction of this court. , The only ground upon which equity can interfere by avoiding the judgments is, that the judgments are fraudulent as against the creditors of the corporation. The alleged ground of fraud is, that the company being insolvent, the judgments were confessed to a director of the company for the purpose of giving him preference over other creditors having equally meritorious claims. In considering this question, it will be assumed that the entire sum for which the judgments were confessed, was due from the corporation, and that there was no actual fraud in the transaction. The mere fact that the creditor was a director of the com- pany, does not render the transaction fraudulent. There is nothing which forbids either the members or directors of a corporation to make contracts with it, like any other indi- vidual ; and when the contract is made, the director stands, as to the contract, in the relation of a stranger to the corpo- ration. The Pres't, M. & Co. of the B. & D. Turnpike Road V. Myers, G Serg. & R. 12 ; Gordon v. Preston, 1 Watts 385; Central Railroad v. Claghorn, 1 Speer^s Eq. R. 545 ; Angell & Ames on Corp., § 233 MAY TERM, 1863. 233 Stratton v. Allen. And corporations that have the power to borrow money, have also the necessary power, as well as the legal right, to give obligations for its repayment, in any form not expressly forbidden by law. Cai^tis v. Leavilt, 1 Smith 9. The mere fact, therefore, that the security was given and the judgments confessed to a director, cannot destroy its va- lidity. Nor can it be denied that a corporation, as well as an individual, may, independently of the statute, confess judg- ments in order to jn-efer creditors. The objection results from the provisions of the statute. It is obvious that the policy of the statute for the preventiou of frauds by incorporated companies, Nix. Dig. 371, is (o preserve the entire property of an insolvent debtor for equal distribution among all its creditors. It declares all transfers of property made after insolvency, or in contemplation of insolvency, null and void as against creditors. It requires that in the payment of creditors and distribution of the funds of an insolvent corporation, the creditors shall be paid in pro- portion to the amount of their respective debts, excepting mortgage and judgment creditors, when the judgment has not been by confession for the purpose of preferriug creditors. Its obvious requirement is, that where the judgment is confessed for the purpose of ])referring creditors, the claim shall have no priority over other debts. There is little controversy as to the facts of the case. The bill charges that at the time the bonds and warrants v/ere executed, the company was insolvent, or on the eve of be- coming so ; and that its condition was well known to the officers of the company, and particularly to Allen, who was a director and the secretary of the company ; and that the bonds and warrants were executed with the view of giving Allen a preference over other creditors. The answer does not deny that the company was insolvent, nor ihe defend- ant's knowledge of that fact, nor that the judgments were confessed for the purpose of giving him a preference over other creditors. The answer alleges that the defendant made loans and advances to the company, not knowing or 231 CASES IN CHANCERY. Stratton v. Allen. believing that ihey were on the eve of bankiuptcy. But tlie advances and liabilities for which the judgments were con- fessed, were made and assumed long before the confession of the judgments, or the giving of the bonds and warrants. Not a dollar was advanced, nor a liability assumed at the time. Previous to that time he had made large advances to enable the company to carry on its oi)erations, but no advances whatever appear to have been subsequently made. From Allen's position as director and secretary of the company, he must have been fully acquainted with its financial condition and operations. The testimony of the president shows that at the time the securities to Allen were authorized, he be- lieved that the Price mortgage would be foreclosed, and in that event the company could not continue its operations without further aid from Allen. The foreclosure was com- menced, and no further aid was furnished by Allen. The company, in fact, suspended its business about the first of July. It is apparent that the officers of the company acted from no hope or belief that they could carry on its business, or redeem it from insolvency. They expected to stop pay- ment, and the security to Allen was given in anticipation of that event. The confession of the judgments could only embarrass their operations, without aiding them. They obtained by it no aid in continuing their business. No additional funds were procured, no extension of credit ob- tained. A judgment confessed under such circumstances af- fords the strongest evidence that it was done in contemplation of insolvency, and with the view of preferring creditors. Everett v. Stone, 3 Story 453 ; Arnold v. Maynard, 2 Story 354 ; Oariis v. Leavitt, 1 Smith 111; Freeman v. Deming, 3 Sandf. Ch. R. 332. I think the facts are satisfactorily established, that at the time of the execution of the bonds and warrants, upon which the judgments are confessed, the company was insolvent, or on the eve of insolvency; that its financial condition was well known to Allen, who was a director and the secretary of the company; and that the judgments were confessed in MAY TERM, 1863. 235 Stratton v. Allen. contemplation of insolvency, for the purpose of preferring Allen over other creditors. The simple question is, whether, in payment of the creditors and in the distribution of the funds of the company, the judgment thus confessed is enti- tled to priority in payment over other claims against the company, or whether the debts are all to be paid propor- tionably. The statute does not declare the judgment void. It is not within the prohibition of the second section, and the fifteenth section simply regulates the distribution of the funds, and the mode in which the debts shall be satisfied. The resolution, under which the bonds and warrants were given, does not authorize the confession of a judgment, or the execution of a warrant for that purpose. It directs that the sum of $10,000 shall be secured by bond and mortgage, and authorizes the president to prepare an inventory of the tools and fixtures, to be given with the mortgage. If such secu- rity had been given by the company when insolvent, or in contemplation of insolvency, it seems clear that the mort- gage would, under the provisions of the second section of the act, have been void as against creditors. It seems equally clear, under the provision of the ninth section of the act, that a judgment confessed under like circumstances can be entitled to no priority over other claims in the distribu- tion of the funds. It is difficult to imagine what operation can be given to the ninth section of the act, if it cannot be applied for the protection of creditors in a case like the present, where the evidence of the insolvency of the company, and the purpose of confessing the judgment, is so strong, and where the creditor, in whose favor the judgment is confessed, is an officer of the corporation, fully acquainted with its finan- cial condition. It was earnestly insisted upon the argument, that Allen, being a director of the company, and in case of its insolvency, a trustee of the property for the benefit of its creditors, was disabled in equity from acquiring priority over other creditors by taking a judgment in his own favor. That his conduct in taking the judgment was not only in violation of the policy of the statute, but was an abuse of his 236 CASES IN CHANCERY. Frey v. Demarest et al. official character as trustee, which rendered the judgment in his favor, fraudulent and void as against creditors. I deem it unnecessary to express any o[)inion upon this point. It is clear from the evidence, that the debt for which the judg- ment is confessed, was honestly due, and the ends of justice will be fully answered by declaring that in the distribution of the funds of the corporation, the judgment shall be paid proportionably with the other debts. Nothing could be gained by declaring the judgment void, and compelling the defendant to prove his claim before the receiver. Elza Ann Feey vs. Garret I. Demaeest and others. 1. A bill in equity by the next of kin, for the distributive share of an estate in the hands of an administrator, will be sustained, where no decree for distribution has been made. 2. The statutory remedy by suit at law for the recovery of a legacy or a distributive share of an estate is cumulative, and was not designed to limit or qualify the ancient jurisdiction of the court of equity over the subject. 3. The Court of Chancery is not deprived of its original jurisdiction in any case, either by the operation of a statute conferring similar jurisdic- tion upon the common law courts, or by the adoption in those courts of the principles or practice of courts of equity. 4. The court of equity has concurrent jurisdiction with the Prerogative Court over the administration of the assets of deceased persons. 5. Unless for some special cause, a court of equity will not interfere ■with the ordinary jurisdiction of the Orphans Court in the settlement of the accounts of execiitors or administrators. Nor will it attempt to look behind such settlement, unless on the ground of fraud or mistake. 6. The retention by an administrator of the fund in his hands, mingled with his own funds and used for his own profit, will entitle the party bene- ficially interested in the fund to a discovery and an account, and to such decree as may be necessary to maintain and enforce the complainant's rights. C H. Voorhis, for Demarest, in support of the demurrer. Slaight, for complainant, contra. MAY TERM, 1863. 237 Frev V. Deraarest et al. The Chancellor. The bill charges that Henry Frey died intestate, on the twenty-eighth of June, 1839, seized and possessed of considerable personal and real estate. On the seventeenth of September, 1839, letters of administration were granted to the defendants, who converted the personal ])roperty into cash and sold the real estate, by order of the Orplians Court, for the payment of debts. On the twenty- fourth of Sei)teniber, 1840, Demarest, one of the adminis- trators, presented his separate account of the personal, and of the proceeds of the sale of the real estate, to the Orphans Court for settlement. The account was allowed and settled, leaving in his hands at that time a balance of $280.37, to which the com[)lainant claims title. The complainant came of age in December, 1859, having been, on the death of her father, an infant about six months old. The defendant, Dem- arest, at the time of the settlement of his account, was aware of the complainant's rights, but has never paid over the bal- ance in his hands, nor any part of it, but has mingled it with his own funds, and has used and applied it in his busi- ness for his own benefit, for more than twenty-one years last past, and so continues to use it, and has refused and still refuses to account to the complainant. The bill ])rays an account, and a decree for the balance of the estate in the hands of the defendants, wi-th interest. To this bill, Demarest, one of the defendants, demurs. The only question presented by the demurrer is, whether the bill contains any equity. The demurrer is general, and is di- rected to the whole bill. No objection, therefore, to the foi'ni or structure of the bill, or to defectfve averments therein, if such there be, or to a defect of equity in particular parts of the bill can avail the defendant. Story's Eq. PL, § 442, § 443, § 453, § 528. It appears by the bill that the account of one of the ad- ministrators was settled in the Orphans Court, and that there has been no decree for distribution. It is urged in support of the demurrer, that a bill in equity cannot be sus- tained by the next of kin for the recovery of the funds in the Vol. I. p 238 CASES IN CHANCERY. Frey v. Demarest et al. hands of the administrator, prior to a decree for distribution. Such is und()ul)tedly the rule at law. Ordinary v. The jEx'rs of Smith, 3 Green's R. 92, 97. The remedy by suit at law, for the recovery of a legacy or a distributive share of an estate, is of statutory origin and is regulated by the provisions of the statute. The statute re- quires, in order to the maintaining of a suit at law, not only that there should be a decree for distribution, but that a re- funding bond should be tendered. Nix. Dlj. 278, § 12 ; 279, §17; 281, §28. Thijs statutory remedy is of comparatively recent origin. It was intended for the ease and favor of jiersons entitled to distributive shares. It furnishes a cumulative remedy, and was not designed to limit or qualify the ancient jurisdiction of the court of equity over the subject. Such was the view of Chancellor Kent in regard to a simi- lar statute in the state of New York. Dccouche v. SavetieVj 3 Johns. Ch. R. 222 ; Seymour v. Seymour, 4 Ibid. 409. And such, so far as I am aware, has been the view uni- formly taken of our own statute. The Court of Chancery is not deprived of its original juris- diction in any case, either by the operation of a statute con- ferring similar jurisdiction upon the common law courts, or l>y the adoption in those courts, of the j)rincip]es or practice of courts of equity. Alklnson v. Leonard, 3 Bro. C. R. 218; King y. Baldwin, 17 Johns. R. 384 ; Sailfy v. Elmore, 2 Paige 497; Varct v. New York Ins. Co., 7 Paige 560; White V. Meday, 2 Edw. Ch. R. 486. The concurrent jurisdiction of the court of equity with the Prerogative Courts over the administration of the assets of deceased persons, has been long and well settled. The jurisdiction is constantly exercised in behalf of legatees and next of kin for the recovery of their shares of the estate, as well as on behalf of creditors and executors or administra- tors. 1 Story's Eq. Jar., § 532, § 541-2. The remedy of the next of kin for the recovery of a dis- tributive share by bill in equity, was established as early as MAY TERM, 1863. 239 Frey v. Demarest et al. the reign of Charles II. Gibbons v. Dmoley, 2 Chan. Cas, 198; Pampl'iii v. Green, Ibid. 95; Matthews v. Newley 1 Vern. 133; Huward v. Howard, Ibid. 131. In this state the jurisdiction of the court of equity over the accounts of executors and administrators, and to enforce the claims of creditors, legatees, and next of kin, has been repeatedly affirmed, and is constantly exercised. The juris- diction itself, as well as the limitations of its exercise, are well settled. Manuscript opinions of Chancellor Williamson in Garrabrant v. Lawrence, and in Burtis et al. v. Adin'rs of Hopkins; 3IeeI:er v. Marsh, Saxton 198; King v. Ex'rs of Berry, 2 Green's Ch. R. 44, 261 ; Salter v. Williamson, 1 Green's Ch. R. 480, 489 ; Smith v. 3Ioore's E.vr, 3 Greea's Ch. R. 485 ; Vanrnater v. Slckler, 1 Stockt. 483 ; Clarke v, Johnson, 2 Stockt. 287. The cases show that a bill in equity may be filed for the recovery of a legacy or distributive share, either before or after a settlement in the Or{)hans Court. Unless forsome special cause, a court of equity will not interfere with the ordinary jurisdiction of the Orj)hans Court in the settlement of the accounts of executors or administrators. Nor will it attempt to look behind such settlement, unless on the ground of fraud or mistake. There is nothing in the complainant's bill to justify any interference witli the settlement made by the administrator in the Orphans Court. But she is entitled to an account of the balance found to be in the hands of the administrator upon that settlement, with interest thereon, or with the ac- cumulation thereof in the hands of the administrator. The great length of time that the fund has been in the hands of the administrator, not, as the bill alleges and as the «le- murrer admits, invested for the benefit of the comj)laiuant, but mingled with his own funds by the administrator, and used for his own profit, entitles the complainant to a dis- covery and an account from the defendajit, and to the aid of this court in the maintenance of her rights. The demurrer is overruled with costs. Cited in Dorshimer v. Rorback, 8 C. E Gr. 52. 240 CASES IN CHANCERY Smith V. Duncan. Daniel Smith vs. George Duncaw. 1. Gross inadequacy of price in the absence of fraud, mistake, illegality, or surprise, is not sufficient to set aside a sheriff's sale and conveyance under an execution at law. 2. A court of equity will not afford relief where the complainant has been guilty of gross laches, or where the injury was caused by his own inexcusable negligence and inattention to his interests. 3. A sheriff's sale and conveyance will not be set aside where the prop- erty has been resold to a third party for a valuable consideration, without notice of the complainant's equity. Where the equities are equal, the court will not interfere with the party holding the legal title, either for discovery or relief. - On final hearing. I. W. Scudder, for complainant. Winfield, for defendan.t. Cases cited by complainant's counsel. Stockton v. Ford, 11 H(m. 247; Harden v. Patterson, 5 Johns. Ch. R. 4S ; Leisenring v. Black, 5 Watts 303 ; Galbraith v. Elder, 8 Ibid. 81 ; Hockenbury v. Carlisle, 5 Watts & Serg. 348 ; Cleavlnger v. Reimar, 3 Ibid. 486 ; Henry v. Raiman, 25 JPenn. 354; Surget v. Byers, 1 Hempstead C. C. R. 715; Fordy. Hatrington, \Q N. Y. 285; Adams Eq. 184; Bene- dict V. Smith, 10 Faige 126; Hoivell v. Baker, 4 Johns. Ch. R.118; 2 Sugden on Vendors 552, 560, § 48, 66, {ed 1851); 1 Story's Eq. Jur., § 400; Peim. v. Craig, 1 Green'k B. 495. Cases cited by defendant's counsel. Haioley v. Cramer, i Cowen 740; McCollum v. Hubbert, 13 Ala. 289; Fox v. Mackreth, 2 Bro. Ch. R. 400 ; Hamilton v. Shrewsbury, 4 Band. 427; Tripp v. Cook, 26 Wend. 159; Campbell v. Gardner, 3 Stockt. 429 ; Frakes v. Brown, 2 Black/. 295 ; Spencer v. Champion, 13 Conn. 11 ; Neilson v. Neilson, 5 MAY TERM, 1863. 241 Smith V. Duncan. Barb. 568 ; Champenois v. White, 1 Wend. 92 ; Evans v. Parker, 20 Ibid. 623 ; Porter v. Boone, 1 Watts & Serg. 251 j -4mer. 7ns. Co. v. Oakley 9 Pa/^/e 263 ; Mohaick Bank v. Atwater, 2 Paige, 54 ; Williamson v. i)a/e, 3 Johns. Ch. R. 290; Livingston v. Byrne, 11 Johns. R. 555, 620; Oatoalt V. Disborough, 2 Greenes Ch. R. 214; Skillman v. Hulcomb, 1 Beas. 131 ; C/ar^ v. Underwood, 17 Barb. 222. The Chancellor. The bill is filed by the defendant in an execution at law, to set aside a sheriff's sule of real estate, made under the execution. The evidence leaves no room for doubt that the complainant's interests were prejudiced by the sale. The property was struck off for $25, and was sold immediately afterwards for $1500. But there are insuperable difficulties in the way of the complainant's title to relief 1. There is no evidence of fraud or unfairness in the con- duct of the sale. It was duly advertised, in compliance with the requirements of the statute. The complainant, moreover, had actual notice of the time and place of sale. The sheriff testifies that he gave him personal notice of the time and place at which the property was originally advertised for sale. He did not then attend, and the sale was ad- journed. He was notified of the time and place to which the sale was adjourned, and failing to attend, the property was then struck off. There is no evidence that the com- plainant was prevented from attending the sale by accident or mistake. Nor is the allegation of surprise sustained by the evidence. The allegation of the bill is, that the com- plainant relied upon a third party to attend the sale on his behalf, and that the person so relied upon was absent from the state at the time of the sale. But the evidence does not show that his absence was a surprise to the complainant, or that he was not fully aware that he was not present at the time of the adjournment. The person, upon whom the com- plainant professes to have relied, was not called as a witness 242 CASES IN CHANCERY. Smith V. Duncan. and the fair presumption is that there M-as no good ground for relying upon his attendance. The evitlenee ])resents a case of inexcusable negligence and inattention to his interests, on the part of the complainant. Against such gross laches, it is not the province of a court of equity to relieve. 2. Kelief is sought, not against the purchaser at the sheriff's sale, but against his alienee. The defendant claims to be a bona fide purchaser for valuable consideration. The evidence shows that he paid the full amount of the purchase money. One thousand dollars was paid before he received actual notice of the complainant's claim. He is souglit to be charged with constructive notice of the circumstances of the sale, which form the basis of the complainant's claim to relief Admitting that the circumstances of tlie sheriti"'s sale were such as to entitle the c(>m])lainant to relief as against the purchaser under him, the evidence is not sutKcient to destroy the defendant's claim to the chai'acter of a hona fide \n\v- chaser for a valuable consideration, without notice of the complainant's equity. His equity is at least equal to that of the complainant, and he has the legal title. Under such eircumstances, equity will not interfere, either for discovery or relief. 1 Story's Eq. Jar., § 64, c. The attorney of the plaintilF became the j)urchaser at the sheriff's sale. Under the circumstances of the ease lie would, in accordance with a familiar principle of equity, have been regarded as a trustee f)r the benefit of his client. Howell v. Baker, 4 Johns. Ch. R. 118 ; Adams' Eq. 184. But the plaintiff in execution is not seeking redress, nor is it perceived how this princij)le can be invoked in favor of the defendant. He has no claim for equitable relief against the plaintiff in execution. Nor does the case fall witiiin the principle adopted and applied in Stockton v. Ford, 11 How' ard 247. The fact that a part of the purchase money was j)aid aftei notice of the complainant's equity, cannot operate to render the conveyance to the defendant fraudulent. Its utmost MAY TERM, 1863. 243 Jordan et al. v. Clark et al. effect would be, in case the sale was set aside, to deprive the plaintiff of an equitable claim to a return of that portion of the purchase money. The bill is dismissed, without costs. Cited in Kloepping v. Stallmacher, 6 C. E. Gr. 329. Joseph C. Jordan and wife and others vs. Andrew J. CijARK and others. 1. As a general rule, where the will is silent as to interest, a legacy bears interest only from the time it is made payable. But where a legacy to a child of the testator is made payable at a future day, and no mainte- nance in the meantime is provided for the legatee, the legacy bears inter- est from the deatli of the testator. 2. Where the testator has expressly provided maintenance up to a cer- tain period, leaving a chasm between that period and the time of the pay- ment of the legacy unprovided for, interest will be allowed upon the leg- acy during such interval, by way of maintenance. 3. Where the devisee of land charged with the payment of legacies, has furnished the legatees with support, though not in strict conformity with the requirements of the will, and such support was furnished and accepted as a substitute for the provision directed by the will, and was in fact more advantageous to the k-g.-itees tlian the interest on tlie legacies would have been, the period, during wliich such support was furnished, will be de- ducted from the time during which interest is allowed on the legacy. 4. Where a testator, by his will, provides that his minor children shall receive their maintenance upon his homestead farm, so long as the devisees and their mother agree to continue upon it and support them there, if the children, without the consent of their mother and the devisees, leave tlie farm during the period for which the testator provided for their mainte- nance there, they can claim it in no other form ; but otherwise, if they leave by constraint, and not from clioice. 5. Upon a bill filed to recover the interest of a legacy only, a decree cannot be made for the payment of the principal which has fallen duo since the filing of the bill. 6. Such decree is not within the special prayer for relief, and could not have been prayed for at the time of filing the bill. If relief is asked to which the complainant is not entitled, the bill is demurrable. 7. Under the general prayer for relief, the relief granted must be agree- able to the case made by the bill, and such as the case stated will justify. 8. In a foreclosure suit if the mortgage is forfeited, and the complainant 244 CASES IN CHANCERY. Jordan et al. v. Clark et al. entitled to a decree of foreclosure at the time of the commencement of the suit, a decree for the whole amount due upon the mortgage, whether it becomes due before or after the filing of the bill, is strictly within the prayer for relief, and such as the case stated will justify. Hannah and P. L. Voorhees, for complainants. S. H. Grey, for defendants. The Chancellor. The bill was filed by and on behalf of the infant children and legatees of Joel G. Clark, deceased, to recover the interest on certain legacies bequeathed to them by their father, or a provision for their support and main- tenance. The legacies are charged upon the real estate de- vised to the defendants. The question raised by the pleadings is, whether, under the provisions of the will, the legatees are entitled to recover anything beyond the principal of the legacies. The testator bequeathed to each of the complainants, his three daughters, Mary, Emeline, and Martha Jane, $400, to be paid to her at the age of twenty-one years, and charged his homestead farm with the same. He devised his home- stead farm in equal portions to his three sons, Andrew, Joel, and James, in fee, subject to the legacies in his will. He also bequeathed to his said sons, the devisees of the home- stead, his stock, farming utensils, household goods and kitchen furniture, upon condition of their continuing on the homestead farm, and farming and cultivating the same to the best advantage and interest of the whole family ; otherwise, to be sold for the benefit of his children in equal proportions. By the eleventh item of his will, the testator requests that his wife and his said three sons shall continue on his farm, cultivating the same to the best advantage and interest of the whole family ; and in case of refusal or neglect on their part so to farm the same, he directs that the farm shall be rented until his youngest son, James, becomes twenty-one years of age, and the net proceeds appropriated to schooling, MAY TERM, 1863. 245 Jordan et al. v. Clark et al. clothing, and maintaining his children equally. And in case of his wife and sons not agreeing to continue on the fiirm as requested, the testator further directs that his stock, farming utensils, household goods and kitchen furniture, shall be sokl and applied to the schooling, clothing, and maintenance of his children equally. At the time of his death, James, one of the sons, and the three daughters, were minors. James came of age on the fifth of March, 1852. Until this period the family continued together on the farm, as requested by the testator, and the complainants were there su[)ported as provided for in the will. At this period the farm was partitioned between the three devisees. The provisions of the will are somewhat conflicting, and the intention of the testator, as to the provision for the sup- port of his minor childrien, after James came of age, not en- tirely free from doubt. If it was intended that the family should continue together upon the farm until the youngest child became of age, then the complainants were clearly en- titled, upon the division of the farm b)' the defendants, to have the value of the stock, farming utensils, and household and kitchen furniture, aj)j)lied to their support and education during their minority. If, on the other hand, it was in- tended that this provision should continue only till James came of age, as the defendants insist it was, then no pro- vision whatever is made for the support of the complainants after that time, during their minority. Assuming the latter to be the true construction of the will, the complainants are entitled to recover interest on their legacies. As a general rule, where the will is silent as to interest, a legacy bears interest only from the time it is made pay- able. But where a legacy to a child of the testator is made ])ayable at a future day, and no maintenance in the mean- time is provided by the testator for the legatee, the legacy bears interest from the death of the testator. Brinherliof v. Ex^rs of Merselis, 4 Z(ih. 680 ; Cox v. CoyTcendall, 2 Beas, 246 CASES IN CHANCERY. Jordan et al. v. Clark et al. 138; Hole v. Mole, I Dick. SIO ; Heath v. Perry, Z AtL 101 ; Lupton v. Lupton, 2 Johns. Ch. R. 628. So wliere the testator has expressly provided maintenance up to a certaitt period, leaving a chastn between that ])eriod and the time of the payment of the legacy unprovided for, interest will be allowed upon the legacy during such inter- val, by way of maintenance. Chambers V. Goldwui,!! Ves.l. The period during which the complainants remained with their brother James, after the farm was divided, must be deducted from the time during which interest is allowed ou the legacy. Though the provision furnished for their sup- port during this period was not in strict conformity with the requirements of the will, it was no doubt furnished and accepted as a substitute for the provision directed by the will, and was more advantageous to the legatees than the interest on the legacy would have been. The answer states that the maintenance and schooling of the complainants, during the time when it was furnished pursuant to the di- rections of the will, cost from $1 to $1.50 per week. This is more than double the amount of the annual interest upou each legacy. The fact alleged in the answer, that the defendants have paid the debts of the estate to an amount exceeding the value of the stock, farming utensils, and household and kitchen furniture, ordered to be sold for the benefit of the complainants, can in no wise affect their claim for relief. The will charges the debts, so far as they shall remain un- satisfied by the personal assets, upon the land devised to the defendants. It was manifestly the desire of the testator that his minor children should receive their suj)p(»rt and maintenance ujion the farm, so long: as the devisees and their mother agreed to continue upon the farm and to furnish the support there. Had the minor children, without the consent of their mother and brothers, left the farm during the continuance of the period for which the testator provided their maintenance upon the farm, they could have claimed it iu no other form. MAY TEEM, 1863. 247 Jordan et al. v. Clark et al. But not only did the defendants fail to continue to occujiy the faiin in the mode desired by the testator, hut it is apj)a- rent, from the evidence, that the complainants left the farm by constraint, rather than from any choice of their own. The claim of Jordan and wife has been satisfied since the filing of the bill of com[)laint. It must be referred to a master to ascertain and rejiort the amount due for interest upon the legacies of the other complainants from tlie twenty- fourth of December, 1855, giving credits for all payments made since that time, by either of the defendants, for the sup- port of the complainants. It appears by the evidence that the princij)al of the legacy to one of the complainants, has fallen due since the filing of the bill of complaint. But no relief can be decreed on that ground. A decree f()r the princi])al of the legacy is not within the special j)rayer for relief. No such relief could have been prayed for at the time of filing the bill. If a complainant asks for relief when he is not entitled to it, his bill would be demurrable. Story^s Eq. PL, § 17, 43. Nor can such decree be made under the general j)rayer for relief, for the relief granted must be agreeable to the case made by the bill, and such as the case stated will justify. Story's Eq. PL, § 40, 42. In a foreclosure suit, the complainant, in practice, recovers instalments of principal as well as of interest, falling due after the commencement of the suit. If the mortgage is forfeited, and the complainant entitled to a decree of fore- closure at the time of the commencement of t!ie suit, a de- cree for the whole amount due uj)on the mortgage, whetlier it became due before or after the commencement of the suit, is strictly within the prayer for relief, and such as the case stated will justify. It becomes simply a question of the amount due upon the mortgage at the date of the master's report. This practice affords no justification for a decree for the principal of the legacy in this cause, however clear the complainants right may be. Cited in Eir of Kearney v. Kearney, 2 C. E. Gr. 63. 248 CASES IN CHANCERY. Ex'rs of Reed v. Reed. Executors of Joseph W. Reed vs. William Reed. 1. Where the cause is heard upon bill and answer, the allegations of the answer are to be taken as true. 2. A tenant for life is entitled to work a mine, quarry, clay-pit or sand- pit, whicli has been opened and used by the former owner. It is a mode of enjoyment of the land to which he is entitled. 3. A bill asking an injunction to restrain waste, and also an account for rent due, is demurrable on the ground of multifariousness. 4. When the title of cestui que trusts to the fund in question is involved, no decree will be made unless they are before the court. 5. On final hearing, permission given to amend by consent, by adding necessary parties within ten days, and before signing the decree. Beashy, for complainants. A. V. SchencJc, for defendant. The Chancellor. Jose[)h W. Reed, the complainants' testator, by his will, devised to his executors a farm for the life of his brother, William Reed, tiie defendant, in trust that they would permit him to occupy and enjoy the same, upon payment to them, for the use of the testator's sisters, Eliza- beth Johnson and Ann Herron, of the yearly rent of $100, to be divided equally between them. On the death of William Reed,, the defendant, the land is devised in fee to the children of the testator's said sisters, viz. to William R. Johnson and John H.Johnson, thechildren of Elizabeth Johnson, who are the complainants; and to the children of Ann Herron. The defendant, since the death of the testator, has been, and still is in the possession of the farm by the permission of the com- plainants. The bill charges that the defendant has committed waste on the premises, by cutting more timber and wood thereon than was necessary for the use of the farm, and by selling large quantities of sand, dug upon the land, to the prejudice of the inheritance; and that the defendant is also in arrear tor MAY TERM, 1863. 249 Ex 'is of Reed v. Reed, rent, nearly $200. Tlie bill prays that tlie defendant may be decreed to make satisfaction for the waste committed ; that he may be restrained from the commission of further waste ; and that the complainants may have such further and other relief as may be agreeable to equity. The answer denies the commission of waste by the cutting of timber; admits that the defendant has dug and sold sand from the ancient sand pits upon the premises, used for that purpose by the testator in his lifetime, and by other owners and tenants of the premises; alleges that the sand j)its are upon a portion of the premises which can be used for no other purpose, and are unfit for cultivation; but claims that the defendant has a right to such use of the premises, and that it occasions no prejudice to the inheritance. The answer further alleges that twenty acres of woodland, a part of said premises, had been sold by the executors by order of the Orphans Court, aiid that in consequence of such sale, and of the defendant's consent thereto, the complainants had agreed, with the consent of all parties interested, that the defendant should pay only $80 per annum rent for the resi- due of the farm remaining unsold ; that only one year's rent is in arrear and unpaid ; and that, on the settlement of the executor's account, there remained in their hands of the pro- ceeds of said sale, a balance of $249.51, to the use and benefit of which the defendant claims to be entitled. The cause is brought to hearing upon bill and answer. 1. The answer denies the commission of waste by cutting timber on the premises, and thus effectually dis[)oses of that part of the complaint. The allegations of the answer upon the present hearing are to be taken as true. 2. The tenant for life is entitled to work a mine, quarry, clay-pit, or sand-pit, wiiich has been opened and used by the former owner. The working of the mine or quarry is a mode of enjoyment of the land to which the tenant for life is entitled. It is well settled, in regard to tenancies iu dower, that the widow is entitled to dower iu such miuei 250 CASES IN CHANCERY. Ex'rs of Reed v. Reed. and quarries as were actually opened and used during the lifetime of iier husband. Stougliton v. L'.'hjJi, 1 Taunt. 402; Billings v. Taylor, 10 Pick. 460 ; Conies v. Ckeever, 1 Cowea 460 ; Rockwell v. Morgan, 2 Beas. 389 ; Park on Dower 1 15, 119 ; 1 Washburn on Peal Prop. 165. Tlie same principle ap[)lie3 to other estates for life. So far as relates to the commission of waste, the bill of complaint cannot be sustained. 3. The residue of the complaint relates to the claim for rent. The bill contains no prayer for an account of the rent, nor for a decree for payment. A reference to take an account of tlie rent due is now asked, under the general prayer for relief. It may well be questioned whether a bill asking for an injunction to restrain waste, and also an account for rent due, would not be liable to objection on the ground of mul- tifariousness. The two grounds of suit are wholly distinct and unconnected, and each is sufficient as stated to sustain a bill. Bedsole v. 3Ionroe, 5 Ired. Eq. R. 313; Storijs Eq. PL, § 271, c. But regarding this objection as waived by the answer, and as not liable to prejudice the rights of any of the parties, still I think the complainants are not entitled to an account. The proper j)arties are not before the court. The bill claims that the corn[)lainants are entitled to recover rent at the rate of $100 per annum. The answer insists that the defendant, by virtue of an agreement made by the com[)lainants, by and with the consent of all the parties interested, is liable, since the sale of a part of the land, to pay rent only at the rate of $80 per annum. By the terms of the will, the tenant for life is to pay to the executors rent at the rate of $100, which is to be divided by the executors equally between the two sisters of the testator. The cestui que trusts are not before the court. They would not be bound by any decree that; might be made in the case. The defendant also claims, by his answer, an interest in the surplus of the proceeds of the sale of the land in the hands of the executor. Whatever view may be taken of the claim of the complainants, the MAY TERM, [1863. 251 Shipman v. Cook et al. parties interested in that fund are not made i>arties to the suit. As the case now stands upon tiie bill and answer, the necessary parlies to tlie account are not before the court. I think, therefore, that the bill must be dismissed. If the parties are desirous that the questions arising uj)on this part of the case should be settled, and an account taken under the direction of the court, the bill may be amended by consent, by adtling the necessary parties within ten days and before siirninuc tiie decree. Daniel M. SniPirAX vs. Jonx Cook and others. 1. Tliongh the delivery of a bill or note, either of a debtor or of a third parly, is not payment of a precedent debt, but merely pu>;pend3 the leraedy, yet if the liolder be gnilty of laches, it operates as a complete satis- faction. 2. Wliere the note of a third party is endorsed by a mortgagor to the mortgagee, and is accepted by liira as a conditional payment upon the bond, the mortgagor is entitled, as endorser, to a notice of {>rotest or dis- honor. If the holder of the note fail to give such notice, the mortgagor is discharged not only from liability as endorser, but also from liability pro tanlo upon. the bond. 3. If such note be accepted as absolute payment on the bond, and the paymant of the note be guaranteed by the mortgagor, the guaranty will not restore the obligation. The mortgagor would be liable on his contract of guaranty, but his indebtedness upon the bond and niorlgnge would not be revived. 4. Gross laches and long delay on the part of the complainant in a sim- ple foreclosure case, in commencing and prosecuting his suit, is unjust and oppressive to the defendant, and is a strong circumstance against the jus- tice of the complainant's claim. Vrooniy for complainant, cited 4 Johns. Ch. li. 616; 9 Vesey 563. Vanatta, for defendants, cited Storj/ on Prom. Notes, § 117; Wiseman v. Lyman, 7 3Iass. 286; Tapley v. Martens^ 252 CASES IN CHANCERY. Shipman v. Cook et al, 8 T. B. 451 ; Camklge v. Allenhy, 6 Barn. & Cress. 373 ; Alderson v. Langdale, 3 Barn. & Ad. 660. The Chancellor. The only question now to be decided is, whether the mortgage which the complainant seeks to foreclose, has been satisfied. The defendant claims certain credits upon the mortgage, which are disputed by the com- plainant. The first subject of controversy is a promissory note of John A. Kitchell, for $80, payable to the order of tlie de- fendant, and by him endorsed to the complainant. The note bears date April first, 1833, and was endorsed to the com- plainant before its maturity. The defendant testified that the note was delivered in part payment of the mortgage debt. The complainant states that the understanding was that it was to be good on the bond, provided the money was paid. That the note never has been paid, is admitted. The complainant further testifies : " I endorsed it on the bond- at the time he gave it to me; at the same time he put his name on the back of it." He identifies the endorsement referred to, which is as follows : " Received, twenty-fourth June, 1833, of John Cook, twenty-eight dollars, for one year's in- terest on this bond. $28. Daniel M. Shipman. By note of J. A. Kitchell, which, when paid, will be in full for the same." The last clause of the endorsement is not only after the signature, but bears unequivocal evidence of not being a part of the original endorsement, as it is written with a dif- ferent pen and with different ink. It can add nothing what- ever to the weight of the j)arol evidence of the complainant. Why the endorsement relates to the interest only, and not to the entire amount of the note, is not satisfactorily ex- plained. Both parties agree that the whole note was to be credited on the bond. In the absence of satisfactory evidence as to the terms upon which the note was agreed \o be ac- cepted, whether as an absolute or conditional payment, resort must be had to the legal operation of the transfer. Though the delivery of a bill or note, either of the debtor IMAY TERM, 1863. 253 Shipman v. Cook et al. or of a tliird party, is not i)ayment of a precedent debt, but merely suspends the remedy, yet if the holder be guilty of laches it operates as complete satisfaction, Camuhje v. Allenby, 6 Barn. & Cress. 373 ; Alderson v. Layigdale, 3 Bcmi. & Ad. 660 ; Denniston v. Imbrie, 3 Wash. 0. C. li. 396 ; Broioer V. Jones, 3 Johns. R. 230 ; Byks on Bills 303 ; Slory on Prom. Notes, § 1 1 7. No notice of protest or dislionor of the note was given to the defendant. To this, as endorser, he was unquestionably entitled. By this laches on the part of the holder the de- fendant was discharged, not only from liability as endorser, but from liability p7'o ianto upon the bond. By reason of the laches, the note operated as complete satisfaction of the indebtedness for which it was received. To this it is answered that the defendant occupies the position of a guarantor. Admitting the fact to be so, it is by no means clear that the laches of the holder was not such as to charge him with the loss. But the fact is not satisfactorily established that he- was a guarantor. The defendant himself swears that the guaranty which now appears over his name, was not there when he endorsed the note. Another witness testifies that he heard the complainant say, after the maturity of the note, that he had been mistaken as to the party whose name was signed to the note, and that he feared the endorser would escape also. These witnesses testify as to a very ancient transaction, and standing alone it would be unsafe to rely upon their testimony. But it is remarkable that, although the complainant sued the maker of the note and failed to recover the debt for want of property, no claim was ever made against the defendant on the contract of guaranty, nor was a dollar of principal or interest })aid on the mortgage debt for eleven years after the date of the alleged guaranty. Again : if the note was taken only as a conditional payment Uj)on the mortgage debt, why should the complainant have: asked from the mortgagor a guaranty of the note? If the note was dishonored, having been accepted only as a condi- tional payment, of what avail was the guaranty of the de-- VOL. I. Q 254 CASES IN CHANCERY. Shipman v. Cook et al. fendant ? His personal liability for the debt remained as obligor upon the bond, as well as the security of the mortgage. There was no reason for asking a guaranty. It did not add a jot to the complainant's security. If that guaranty be in fact genuine, it affords the strongest corroboration of the de- fendant's evidence, that the note was accepted as payment upon the bond. If so, that ends the controversy. For if the note was accepted as absolute payment on the bond, it is clear that the guaranty will not restore the obligation. The defendant would be liable on his personal contract of guaranty, but his indebtedness upon the bond and mortgage would not be revived. The defendant also claims allowance for the value of cattle, hogs, corn, and spirits, delivered to the complainant as pay- ment on said mortgage debt, between the years 1833 and 1837, and not credited on the bond. The delivery of most of the articles is clearly proven, to an amount sufficient to satisfy the mortgage. The complainant himself admits that they were delivered to, and received by him, as payments on account of the mortgage. But he insists that the value of the property was included in the money receipts endorsed upon the mortgage, duplicates of which were furnished to the de- fendant. The defendant, on the other hand, testifies that he received those receipts from the complainant ; he saw them signed, and he paid the sums of money for which they were given. The receipts themselves are given for so much money paid. They contain no intimation that cattle, corn, or other chattels, constituted any part of the amount. I find no satis- factory evidence that the receipts are not what they purport to be — receipts for money paid. The complainant's unsupported evidence cannot overcome the testimony of the defendant, corroborated by the plain language of the receipts. It appears moreover from the complainant's evidence, that he had an entry in his books, of the articles thus furnished by the defendant on account of the bond. That book the complainant was notified to pro- MAY TERM, 1863. 255 Shipman v. Cook et al. (luce in evidence. He failed to do so, alleging that it was lost. What is still more significant, the defendant testifies (hat when called on for the payment of this debt, he saw in the hands of the person who was then the plaintiff's attorney, the list of the articles thus furnished. This list the attorney refused to deliver to the defendant, but he did exhibit the note, and told him that he (the attorney) would allow the articles, if the defendant would settle and pay the note. This testimony is so important in its bearing upon the cause, that the complainant was bound, in justice to himself and to the court, to have contradicted or explained it. Failing to do so, it must be taken most strongly against him. It is shown that although the attorney has ceased to act, and has re- moved from the state, he was in the state while the testimony was being taken. It is no excuse for the complainant to allege that the attorney left the state unexpectedly. If his evidence could not have been, taken here, it might have been taken by commission at the place of his residence. Another circumstance has impressed my mind unfavorably in regard to the justice of the complainant's demands. This difficulty originated thirty years ago. The complainant had it in his power at any time to have foreclosed the mortgage and have the controversy settled. He forbore to take this step until the defendant absolutely refused to make further payments upon tlie mortgage. The bill was at length filed on the fourteenth of January, 1849. No testimony was taken until ten years after the defendant's answer was on file, and then not until an order of the court was made requiring him to proceed. After the evidence was closed, the cause again slumbered until the complainant, on the motion of the defendant, was ordered to bring the cause to hearing, or have his bill dismissed. A simple case for foreclosure has thus been pending in the court, without an obstacle inter- posed by the defendant, for a period of over fourteen years. This is surely not the conduct of a party confident in the justice of his cause, and seeking the vindication of his rights. 256 CASES IN CHANCERY. Van Doren v. Robinson et al. It is eminently unjust and oppressive to the defendant. There is no need of a reference to a master. If the credits are al- lowed, it is clear that the Complainant's debt is satisfied. The bill must be dismissed. Ferdinand Yan Doren vs. James F. Robinson and others. 1. Cestui que trusts are not, it seems, necessary parties to suits against trustees, to compel the specific performance of contracts, except where Bome question arises touching tlie power of the trustees to execute the con- tract, or their authority to act under it. 2. But where a bill in equity involves the title of the cestui que trusts to the property in dispute, or where they are interested, not only in the fund or estate respecting which the question at issue has arisen, but also in tiiat question itself, they are necessary parties. 3. An objection for want of proper parties taken at the hearing will not prevail, unless such parties are necessary to the final determination of the cause. 4. The general principle is, that where the contract is incapable of being enforced against one party, that party is equally incapable of enforcing it against the other. But the principle does not apply where the contract, by its terms, gives to one party a right to the performance, which it does not give to the other. 5. Where the obligation to perform rests upon one of the parties only, equity will enforce the contract with great caution. 6. An agreement for the sale of laud at a price to be ascertained hy the parties, is too incomplete and uncertain to be carried into execution by a court of equity. But where the contract is, that land shall be conveyed "at a fair price," or "at a fair valuation," the court will direct the valua- tion to be made by a master, and will enforce the execution of the contract. 7. The true principle seems to be, that whenever the price to be paid can be ascertained in consistency with the terms of the contract, performance will be enforced. But the court will not make a contract for the parties, nor adopt a mode of ascertaining the price not in accordance with the spirit of the agreement. 8. A mere personal contract, not running with the land, nor binding the alienee at law, will be enforced against the alienee in equity, only where he is chargeable with notice of the contract. 9. Where the defendant claims title through a deed which contains the MAY TERM, 1863. 257 Van Doren v. Robinson et al. covenant sought to be enforced, he is chargeable with constructive notice of tlie covenant. 10. Notice of a deed is notice of its contents, and where a purchaser cannot make out a title but by a deed whicii leads him to another fact, he will be deemed to have knowledge of that fact. 11. Constructive notice is knowledge imputed on presumption, too strong to be rebutted, that the knowledge must have been communicated. J 12. Where the covenantee in a conti-act for the conveyance of land, permits a purchaser to acquire title, take possession of the premises, and pay the purchase money without an intimation of his claim under the covenant, or of his willingness to accept the title, he has no claim to relief in equity 13. Specific performance is relief which equity will not give, unices in cases where the parties seeking it, come as promptly as the nature of the case will permit. Vanatta, for complainant. Pitney, for J. F. Robinson. T. Little, for the otiier defendants. The Chancellor. The complainant, by deed bearing date on the eighth of April, 1843, conveyed to Phebe Wood- ward, a tract of land in the county of Somerset, containing about fifty acres. The deed is executed under the hand and seal, both of the grantor and grantee, and contains the fol- lowing covenant on the part of the grantee : " Whenever she, the said Phebe Woodward, shall quit the actual occupa- tion of the foregoing described land and premises, she will reconvey the same to the said Ferdinand Van Doren in fee simple, by a good and sufficient deed of warranty, free and clear of all encumbrances made or suffered by her, for a fair price, provided said Ferdinand Van Doren will accept such 3onveyance and pay such price; and in case the said Phebe Woodward shall die in possession of the said land and prem- ises, she hereby further covenants with said Ferdinand Van Doren, tliat her heirs or assigns shall, upon her death, reconvey said laud and premises to him by such deed, and 258 CASES IN CHANCERY Van Doren v. Robinson et al. upon such terras and conditions as last aforesaid, provided he or they will accept such deed, and pay such price for said land and premises." The grantee entered into possession of the premises, and continued in the actual occupation until the spring of 1845, when she removed to the city of New York, having leased the premises to a tenant for one year. On the twenty-first of October, 1845, Phebe Woodward, by deed of bargain and sale, conveyed the premises in fee to James F. Robinson, one of the defendants. On the fifteenth of February, 1847, James F. Robinson conveyed the prem- ises in fee to John H. Robinson, who thereupon executed a deed of trust in favor of his mother, Nancy Robinson, by whom the consideration money for the conveyance of the farm by Phebe Woodward, was advanced. Both Phebe Wood- ward, the complainant's grantee, and Nancy Robinson, in whom the equitable estate in the premises was vested, died in the year 1849. The complainant's bill was filed on the seventeenth of April, 1862. A preliminary objection is raised to the bill, for want of proper parties. Cestui que trusts are not, it seems, accord- ing to the modern rule in England, necessary parties to suits against trustees to compel the specific performance of con- tracts, except where some question arises touching the power of the trustees to execute the contract, or their authority to act under it. Evans v. Jachson, 8 8im. 217; Sanders v. Richards, 2 Collijer 568 ; Fry on Spec. Perf., § 99. But the bill in this ease is not a mere bill for specific per- formance. It is also in the nature of a bill of interpleader, and involves the title of the cestui que trusts to the property in dispute. It is in respect to that title, that the defendants are called upon to interplead, and the court is asked to de- cide. The cestui que trusts are interested not only in the fund or estate respecting which the question at issue has arisen, but also in that question itself. In such case, the cestui que trusts are necessary parties. Calvert on Parties 5. The devisees of the land in question under the will of Nancy Robinson, if that will should be established, as the MAY TERM, 1863. 259 Van Doren v. Robinson et al. bill assumes tluit it may be, would liave an interest in the event of the saiit. If, therefore, that question slioiild be decided, it would be- come necessary to make the cestui que trusts parties, before the final determination of the cause. But as the case will be disposed of upon other grounds, totally irrespective of the title to the property, or the rights of the cestui que trusts, it cannot now with any propriety be declared that the bill is defective for want of parties. The objection was not raised by demurrer. An objection for want of proper parties taken at the hearing will not prevail, unless such parties are necessary to the final determination of the cause. It is objected that the contract is not such as equity will enforce for want of mutuality. The general principle is, that where the contract is incapable of being enforced against one party, that party is equally inca{)able of enforcing it against the other. Fry on Spec. Perf., § 286. But the principle does not apply where the contract, by its terms, gives to one party a right to the performance which it does not give to the other, as where a lease contains a covenant on the part of the lessor for a renewal of the lease at the expiration of the term. It is now settled that such covenant may be enforced against tiie lessor, though there is no reciprocal obligation on the part of the lessee to accept the renewal. F'ry on Spec. Per/., § 948. In McKibhin v. Brown, 1 McCarter 13, the bill was filed by the lessee to enforce the specific performance of a cove- nant for renewal. The bill was open to the objection now urged, but it was not suggested as a ground of defence, al- though the case was warmly contested, both in this court and in the Court of Appeals. The present case falls directly within the same principle. The grantee in the deed covenanted to reconvey whenever she should quit the actual occupation of the premises, though the grantor was under no obligation to accept the title. It is in fact a contract in which the obligation to perform rests 260 CASES IN CHANCERY. Van Doren v. Kobinson et al. upon one of the parties, and which will he enforced in equity, though with great caution. Chestennan v. Mann, 9 Hare 206 ; Allen v. Hilton, 1 Fonb. Eq. 425, note; Fry on Spec. Perf., § 291-2, § 733. It is farther objected that the contract will not be en- forced, because the price to be paid for the reconveyance of the land is not ascertained by the contract. The agreement is that the land shall be reconveyed for a /air ^rice, if the grantor will accept the deed and pay such price. It is urged that the effect of the agreement is simply to give to the vendor the refusal of the property, if the parties could agree upon tiie price. If such be the effect of the con- tract, the court will not decree a specific performance. An agreement for the sale of land, at a price to be ascertained by the j)arties, is too incomplete and uncertain to be carried into execution by a court of equity. Graham v. Call, 5 Munf. 396. But where the contract Is that the land shall be recon- veyed, not at a price to be agreed upon by the parties, but at a fair price, or at a fair valuation, the court will direct the valuation to be made by a master, and will enforce the exe- cution of the contract. Gaskarth v. Lord Lowther, 12 Ves. 107 ; Willcs V. Davis, 3 3Ier. 507 ; Cltij of Provldenee v. St. Johns' Lodge, 2 Rhode Lsland i^. 46 ; Dike v. Greene, 4 Rhode Lsland R. 285 ; Fnj on Spec. Per/., § 219. This class of cases has given rise to some conflict of opinion, and the line which marks the linjits of the court's exercise of jurisdiction, is not clearly defined. The true principle seems to be, that whenever the price to be paid can be as- certained, in consistency with the terms of the contract, per- formance will be enforced. But the court will not make a contract for the parties, nor adopt a mode of ascertaining the price, not in accordance with the real spirit of the agreement. In this case, the mode in which the price shall be fixed, is not designated in the contract. It is required simply that it be a fair price. To ascertain that value, by any mode of in- vestigation, will conflict neither with the letter, nor with the MAY TERM, 1863. 261 Van Doren v. Robinson et al. spirit of the contract. I tliiiik. therefore, the contract is such as will justify a decree for specific performance. The covenant for reconveyance is sought to be enforced, not against the covenantor, but against tiie alienee of the land. The covenant is merely personal. It neither runs with the land, nor binds the alienee at law. It will be enforced against the alienee, in equity, only where he is chargeable with notice of tlie original contract. Jackson's case, 5 Vln. Ab. 543, § 3; Tmjhr v. Stibbert, 2 Vesey 437; Fry on Spec. Per/., § 135, §137. There is no proof of actual notice to the alienee. At the time of the conveyance from Phebe Woodward, the cove- nantor, to James F. Robinson, the deed from the com})lainant to Phebe Woodward was not on record. There is no evi- dence that Robinson had ever seen that deed before he re- ceived the title. He denies that he ever saw it, or that he liad any knowledge whatever of the existence of the covenant, at the time of the conveyance to him. He is, nevertheless, chargeable with constructive notice. All the defendants claim title through the deed from the complainant to Phebe Wood- ward, which contains the covenant which is sought to be en- forced. Notice of a deed is notice of its contents. And where a purchaser cannot make out a title but by a deed, which leads him to another f:ict, he will be deemed to have knowledge of that fiict. 4 Kent's Com. 179 ; 2 Sugden on Vendors [lih Am. ed.) 559, § 63 ; 1 Story's Eq., § 400. In this aspect it is immaterial whether the deed was or was Dot recorded. It avails nothing that the defendants deny actual notice. Constructive notice is knowledge imputed on presumption, too strong to be rebutted, that the knowledge must have been communicated. 1 Story's Eq. Jur.y § 399; 2 Sugden on Ven* dors 1041, § 7. It is further objected that, admitting the defendants to be chargeable with notice, the complainant is not entitled to relief, ou the ground that his conduct at the time of the sale 262 CASES IN CHANCERY. Van Doren v. Eobinson et al. and conveyance to James F. Hobinson, was calculated to mis- lead him in regard to his rights as a purchaser. By the terms of the covenant, Phebe Woodward engaged to reconvey the })remises to the complainant whenever she should quit the actual occupation of the land and premises, provided the complainant would accept the conveyance and pay the price. In the spring of 1845 she left the premises and removed to the city of New York. About the first of October following, Robinson called upon the complainant and. viewed the premises, with the intention of purchasing. It is obvious, from the evidence not only of Robinson but of the complainant himself, that he was aware of Mrs. Woodward's desire to sell, and of Itobinsou's intention to purchase. He says, that from what he understood from Robinson, he had reason to believe that she would sell without his consent. He gave Robinson no intimation of his intention or willingness to accept a reconveyance. Immediately thereafter, he had aa interview with Mrs. Woodward, in the city of New York. He made no demand of a conveyance ; gave no intimation that he was willing to accept it. The object of his visit was not to protect his rights under the covenant, but to obtain from Mrs. Woodward the payment of a debt which she owed him. On his return from New York, without having ob- tained security for his debt, he sued out a writ of attachment against Mrs. Woodward, as a non-resident debtor, which he caused to be served upx)n the land in question, before the deeci to Robinson was executed. Robinson, having obtained his title, entered into possession, and while so in possession, he paid and satisfied to the auditors in attachment, with the knowledge and concurrence of the complainant, the debt for which the attachment was issued, together with the claims of other attaching creditors, which had become encumbrances on the land. The complainant not only tacitly assented to the Bale and conveyance by Woodward to Robinson, but he ac- tively participated, by receiving a part of the purchase money. By the terms of the contract, he was as much bound to MAY TERM, 1863. 263 Van Doren v. Robinson et al. demand a deed, or intimate his willingness to aceept it, as the covenantor was to reconvey. No deed could be tendered till the price was agreed upon. The obligation to convey was inoperative, unless he was willing to accept the deed and pay the purchase money. Yet he stood by and permitted the purchaser to acquire title, to take possession of the premises and to pay the purchase money, without an intimation of his claim under the covenant, or of his willingness to accept the title if it was tendered to him. Such conduct would estop a party from enforcing a legal title; with more reason it oper- ate to de{)rive a party of all claim to relief at the hands of this court. The conduct of the complainant operated as a waiver of his equitable claim under the covenant, as against James F. Robinson and those claiming under him. An equally decisive objection to the relief asked for, is the delay on the part of the complainant in seeking to enforce his claim. Robinson acquired title, and entered into pos- session of the premises in October, 1845. The complainant's bill was filed in April, 1862, more than sixteen years after the date of the conveyance. His first formal notice of his claim to one of the defendants, was made on the twenty-first of March, 1861. There is strong presumptive evitlence in the case, that until about that period, he had no intention or desire to enforce his claim to a conveyance under the stipu- lations of the covenant. This great delay, unaccounted for is a bar to a claim for a specific performance of the contract. A party, in the language of Lord Alvanley, "cannot call upon a court of equity for specific performance, unless he has shown himself ready, desirous, prompt, and eager." Melward v. Earl of Thanet, 5 Vesey 720, note h. In the language of Lord Crauworth, "specific performance is relief which this court will not give, unless in cases where the parties seeking it, come as promptly as the nature of the case will permit." Eads v. Williams, 4 De Gex, M. & G. 691 ; Fry on Spec. Per/., § 732-3. A bill lor specific performance is an application to the dis- cretion, or rather to the extraordinary jurisdiction of equity, 264 CASES IN CHANCERY. Van Doren v. Eobinson et al. which cannot be exercised in favor of persons who have long slept upon their rights, and acquiesced in a title and pos- session adverse to their claim. 1 Sugden on Vendors 289, § 3,4,5. No excuse is furnished by the facts set out in the bill as explanatory of the delay. Phebe Woodward did not die till 1849, more than three years after Robinson had acquired title and possession of the premises under her. The subse- quent controversy in Vermont, touching the validity of the will of Nancy Robinson, and the conflicting claims of the defendants to the premises, presented no obstacle to the com- plainant's suit. The decision of the question in Vermont did not as the complainant himself alleges, conclusively settle tl»e question of title. The same difficulty as to the title, which is alleged as a ground for the delay, continued to exist when the bill was filed. Nor is the objection on the score of delay waived by the fact, that the negotiations for a conveyance were had between the parties, on the assumption of the complainant's claim to a reconveyance. There was no admission by the defendants of the comi)lainant's right to the conveyance under the cove- nant, nor any waiver, express or implied, of any defence to such claim. The negotiations for the purchase were in fact commenced, and the price agreed upon, before the complain- ant's claim to a conveyance was presented or insisted on. It it evident, indeed, from the whole tenor of the evidence, and especially from the written correspondence between the parties, that the complainant's claim was not set up, and that the bill was not liled, so much for the purpose of enforc- ing a compliance with the covenant, as for the sake of acquir- ing a satisfactory title, and ascertaining to which of the de- fendants the purchase money should be paid. The defendants were willing to convey. The parties had virtually agreed upon the price. The only question was, to which of the de- fendants the purchase money should be paid. The bill was evidently filed under an impression on the part of the solicitor, that the bill would not be resisted, but that the defendants MAY TERM, 1863. 265 Belford et al v. Crane et ux. would acquiesce in a determination by this court of their conflicting ehiims. That expectation proves not to have been well founded. The bill must be dismissed. Cited in Brewer v. Marshall, 4 C. E. Gr. 544 ; Sweel v. Parker, 7 C. E^ Gr. 45G; Green v. Lichards, 8 C. E. Gr. 35; Reynolds v. O'Neil, 11 C^, E. Gr. 225. George Belford and others, partners, &c., vs. Joseph B. Crane and wife. 1. Where tlie cause is lieard upon bill and answer, llie answer must be taken as conclusive proof of the facts which it sets up by way of defence. But intentions and motives are not facts, touching which the answer is conchisive. 2. Where a wife takes the title to land, purchased with the property of the husband, under circumstances which render the transaction fraudu- lent as against the luisband'g creditors, she will be treated as a trustee for the creditors, and the property will be sold for their benefit. 3. The legal title to land is not aflected by a sheriff's deed, where, at the time of the levy and sale, the title was not in the defendant in execution. 4. The existence of fraud is often a presumption of law from admitted or established facts, irrespective of motive, and too strong to be rebutted. A voluntary settlement on the wife by a husband while engaged in l)usiness, and involved in debt, is fraudulent as against creditors, no matter how pure the motive which induced it. 5. The right of the husband to the services of his wife, and to the avails of her skill and industry, is absolute. The wife can acquire no separate property in her earnings, though she carry on business in her own name, except by gift from her husband. 6. A settlement by the husband upon the wife, in consideration of meri- torious services, is a pure gift or voluntary settlement, and though good as against the husband, can only be sustained against his creditors by virtue of an antenuptial contract. 7. If a party is indebted at the time of a voluntary settlement, it is pre- sumed to be fraudulent in respect to such debts, and no circumstances will permit those debts to be affected by the settlement, or repel the legal pre- sumption of fraud. 8. The distinction between existing and subsequent debts, in reference to voluntary conveyances, is, that as to tlie former, fraud is an inference of law ; as to the latter, there must be proof of fraud in fact. 9. The act of 1852, for the better securing the property of married 266 CASES IN CHANCERY. Belford et al. v. Crane et ux. women, confers upon the wife a mere jus tenvndl. It gives her no power to dispose of her property. 10. The hind having been pnrcliased witli tlie money of the hnshand, there is a resuhing trust in his favor. The wife will be declared a trustee for the husband, for the benetit of his creditors. Vanattn, for complainants. Pitney, for defendants. Cases cited by complainants' counsel. Reads v. Living- ston, 3 Johns. Ch. R. 497 ; Cooh v. Johnson, 1 Beas. 52 ; Satterthwaite v. Emley, 3 Greenes Ch. R. 489 ; Townsend v. Westacott, 2 Reavan 340 ; 1 Story's Eq. Jar., § 353, § 374 ; 1 Fonb. Eq., ch. 4, § 12 ; 3 Sta^-k. on Ev. 615, 622 ; Tumor's case, 8 Coke 132, (262) ; Bovy's case, 1 Vent. 194; Douglasse V. Waad, 1 Chan. Cases 100; Holford v. Holford, Ibid. 217; Colvilc V. Parker, Cro. James 158 ; Evelyn v. Templar, 2 Bro. Ch. R. 148; BurreVs case, 6 Coke 72; Gooch's case, 5 Co^-e 60; Doe v. Routledge, Cowper 705, 711 ; Toivnsend v. Windham, 2 Fesry, sen. 11; iV/a;. Z)?^;. 762, § 8; Freeman V. Orser, 5 jDaer 476. Cases cited by defendants' counsel. 3Tegrath v. Robertson's Adm'7's, 1 7)e.?s. 445 ; Pinney v. Fellows, 15 F/. 525 ; 1 Bright on Husb. and Wife, 230, 232. The Chancellor. The complainants having recovered judgment at law against Joseph B. Crane, caused an execu- tion to be levied on certain real estate, the legal title to which was in the wife of Crane. On the twenty-fourth of June, 1861, the land was sold by virtue of the execution, and the complainants became the purchasers, and received a deed from the sheriff in pursuance of the sale. The bill charges that the property was in fact, the property of the husband, but that the title was vested in the wife, for the purpose of defrauding the husband's creditors. The prayer of the bill MAY TERM, 1863. 2G7 Belford et al. v. Crane et ux. is, that the deed to the wife be declared void, and that she be decreed to convey her title to the complainants, or that the property be sold nnder the order of the conrt, to satisfy the claim of the complainants against the husband. The case is heard upon bill and answer, and the right rests upon the admissions and allegations of the answer, which must be taken as conclusive proof of the fads which it sets up by way of defence. Lubc^s Eg. PL 109. The answer admits the judgment of the complainants ; the levy upon the real estate standing in the name of the wife, and the sale and conveyance to the complainants. It also admits that at tlje time of the marriage of the defendants, the wife was not possessed of any property, real or personal, and that she has not received, by descent, devise, or gift, from any person since her marriage, any property whatever. It avers that the wife was a tailoress, and that, by her labor and exertions as a tailoress, in addition to her ordinary liousehold duties, and by keeping boarders, during a course of years, she earned a large sum of money, amounting, as the defendants believe, to about one thousand dollars; that the real estate in question was purchased in the years 1857 and 1858, and the title taken in the name of the wife. That at the time of the purchase, the defendant, Joseph B. Crane, was indebted upon his mortgages and notes given for the pur- chase of real estate, for his current coal bills, bought on the usual credit for the purposes of his business, and for his family expenses ; and that all the debts then due, except about $275, have been paid and satisfied, as the same matured. The defendants admit that when the land was purchased the liusband expected to continue in business, but deny that he intended to contract any new indebtedness, except in the ordinary course of his business. They also deny that the title was taken in the name of tiie wife to hinder and delay creditors, or with any expectation of insolvency. In the fall of 1858 and in the spring of 1859, a house was erected upon the land at a cost of $1700, of which $700 was paid and §1000 raised by mortgage upon the property. In the year 268 CASES IN CHANCERY. Bel ford et al. v. Crane et ux. 1859, the business of the luisband having been much enlarged, proved dis:istrous, and he was unable to meet his engage- ments and became insolvent. In 1860, a judgment having been recovered against him, tlie land which had been con- veyed to the wife was levied upon and sold as the property of the husband, and was struck off and conveyed to the at- torney of the plaintiffs in execution for the sum of $5. On the ninth of October, 1860, the land was again conveyed to the wife for the consideration of $400, the husband having negotiated the purchase in behalf of the wife. Three hun- dred dollars of the purchase money was raised by a mortgage on the premises, and the balance was paid -out of the funds of a third party, in the hands of the wife, and was also after- wards secured by mortgage on the property. The fact that the legal title to the land was never in the husband cannot affect the substantial question at issue, though it may affect the mode of redress. If the property, vested in the wife, was purchased with the property of the husband, under circumstances which render the transaction fraudulent as against the husband's creditors, the wife will be treated as a trustee for the creditors, and the property sold for their benefit. Nor can the question at issue be materially affected. by the sale of the property under execution against the husband, and its subsequent conveyance to the wite. She paid not one dollar consideration fur the reconveyance to herself, out of any funds of her own. The entire consideration was raised by mortgage upon the premises, leaving both the legal and the equitable title unaffected, save that the property was charged with an additional encumbrance. The wife acquired no lesfal title whatever under the deed from the sheriff's grantee. The legal title, at the time of the levy and sale by the sheriff, was not, and never had been in the defendant in execution. The sheriff's deed, therefore, could not affect the legal title. All that it could effect, and probably all that it was designed to effect, was to lay the foundation for pro- ceeding in equity. MAY TERM, 18G3. 2{?n Belford et al. v. Crane et ux. Tlie whole controversy turns upon the validity of the transfer of the property from the husband to the wife. The case, as it appears from the answer of the defendants, is, that about the year ISoG, Joseph B. Crane, the husband, being a man of limited means, embarked in the business of buying and selling coal. A considerable portion of his property was ia real estate, and he resorted to loans for the purpose of carrying on his business. The wife, at the time of her mar- riage, had ho property whatever. She has never since re- ceived any by descent, devise, or bequest. All the proj)erty since vested in her, has been purchased with means which belono;ed to her husband. When he commenced business, the whole real estate of the husband was in his own name. Soon afterwards, while his real estate was subject to mort- gage and he was carrying on busine.-s uj)on borrowed capital, the real estate owned by the husband was sold, and the land in question was purcliased and the title taken in the name of his wife. Tiie land was purchased in the years 1857 and 1858, at a cost of $750. In the fall of 1858 and in the spring of 1859, a house was erected upon the premises at a cost of $1700, making the total cost of the property $2450. So far as can be learned from the answer, that exceeded the whole amount of property ever owned by the husband, clear of debts. The answer does not show that he ever, while in business, was possessed of $2000, clear estate. In the summer of 1858, about the time he commenced building, he sustained a serious loss, and in the fall of 1859, within six months after his house was finished, he was unable to pay his debts, and, in the lan- guage of the answer, " went to protest." Thereupon the business was carried on in the name of the wife, the coal being purchased by a third party, and the husband, as the agent of the wife, retailing the coal and accounting for t!ie proceeds to the purchaser, or applying it in payment of the notes. In the spring of 1856, when the husband commenced business, he had been married fifteen years. There was no antenuptial or postnuptial settlement, or agreement for set- tlement on the wife. The whole property stood in the name Vol. I. • e 2/0 CASES IN CHANCERY. Belford el al. v. Crane et ux. of the hnsbaiul. In 1857 he commenced the transfer of his property to his wife, and by the spring of 1859, while the husband was atill engao-ed in business and extendiii": his operations, every vestige of property that lie owned was ia tlie name of his wife. The transfer was not made by a deed of settlement. There was no declaration of a purpose by the husband to appropriate a specific portion of his j)r()perty for the use of the wife, but the property, from time to time, was purchased in the name of the wife, and a house suixsequently erected thereon with the means of the husband. That pro- perty the husband continued to use and enjoy after the ehauge of title as fully as he had done before. The only substantial change was, that it was [>laced beyond the reach of his creditors. It is very difficult, on a simple view of the facts presented by the answer, to resist the imj)ression that this whole arrangement was made for the purpose of placing the property of the husband beyond the reach of the hus- band's creditors. It is true the answer denies the fraudulent intent or motive, but intentions and motives are not fads, touching which the answer is conclusive. Cook v. Johnson, 1 Beas. 53. The existence of fraud is often a presumption of law from admitted or established facts, irrespective of motive, and too strony; to be rebutted. A voluntarv settlement on the wife by a husband while engaged in business and involved in debt, is fraudulent as against creditors, no matter how pure the motive which induced it. It is urged that the transfer of the property to the wife will be sustained in equity, because it was purchased in part with the avails of the wife's labor. Both at common law and in equity, the husband is entitled not only to the per- sonal [)roi)erty which the wife owns at the time of her mar- riage, but to all that she acquires by her skill or labor during coverture. His right to her services and to the avails of her skill and industry, is absolute. The wife can acquire no sepa- rate property in her earnings, except by gift from her hus- band. Even where she carries on business in her own name MAY TERM, 1863. 271 Belford et al. v. Crane et vii the avails of the business are the property of the husband. Tills subject was considered and decided in SkUlman v. Skill- man, 2 Bcdii. 403, wliere many of the authorities will be found. That decision has since been affirmed by the Court of Appeals. The answer contains no averment of a settlement of the husband on the wife in consideration of her meritorious ser- vices, or of a gift to her of the avails of her labor. The de- fendants, on the contrary, admit that no part of the money invested in said house and lots was furnished by the wife, but they allege that it was the proceeds of the joint labor of the defendants in former years, and from the increase in value of the real estate purchased by the proceeds of such joint labor. Tliey further allege that no account was kept of the earnings of the wife, nor were they kept separately, but they were united with the earnings of the husband, and the surplus, after defraying the ex[)enses of the family, we're laid up and invested by the husband. These facts prove in- controvertibly that the land was purchased with the jiroperty of tlie husband and the title taken in the name of the wife. There is no allegation that the conveyance was designed as a postnuptial settlement upon the wife, or as a gift to her for her services. The frame of the answer excludes such an in- ference. The wife claims the property, not as the gift of her husband, but as an equitable recompense for meritorious ser- vices. But if the answer had alleged a settlement by the husband in consideration of those services, it was a j)urc gift or vol- untary settlement, antl though gooil as against the husband, could only l)e sustained against the creditors by virtue of an antenuptial contract. Ciancij on Hnsb. and Wife 27G, 277. In regard to antecedent creditors, tiiere seems no room for question as to the invalidity of the title. The doctrine, as stated l)y ChanceHor Kent and adopted by this court, is, that ** if the party is indebted at the time of the voluntary settle- ment, it is presumed to be fraudulent in respect to such debts, and no circumstances will permit those debts to be affected 272 CASES IN CHANCERY. Belford et al. v. Crane et ux. by the settlement, or repeal the legal presumption of fraud/* Meade v. Livingston, 3 Johns. Ch. H. 500 ; Cook v. Johnson^ 1 JBeas. 54. The distinction between existing and subsequent debts, in reference to voluntary conveyances, is, that as to the former, fraud is an inference of law ; but as to subsequent debts, there is no such necessary legal presumption, and there must be proof of fraud in fact. Meade v. Livingston, 3 Johns. Ch. R. 497,602; Cooky. Johnson, 1 Leas. 5^. I think the facts of this case, as disclosed by the answer, leave no reasonable room for doubt that the vesting of the property in the wife was effected in contemplation of present and future indebtedness, and with the view to hinder, delay, and defraud creditors. Independent of all other badges of fraud, the large amount settled on the wife, considered in relation to the husband's means, is in itself a very unusual and suspicious circum- stance. A settlement honestly made always has relation to the husband's pecuniary ability. In Beard v. Beard, ^ Atk. 72, Lord Hardwicke said : " A court of equity will not suffer the wife to have the whole of the husband's estate while he is living, for it is not in the nature of a provision, which is all the wife is entitled to." Courts have manifested a strong disposition, and very pro- perly, to protect bona fide settlements made by a husband in favor of a wife. But it is material to bear in mind that here is no settlement by the husband for the separate use of the wife. The absolute interest in and control over the property, to the entire exclusion of the husband, is not vested in tbo wife, as it would be in case of a conveyance to trustees for her use. Independent of the statute of 3 852, for the better securing the property of married women, the husband would have a right to the income of the property during the lifo of the wife, and on her death he would become tenant by the curtesy. And notwithstanding the statute, the wife has no power to dispose of her {)roperty. The statute confers on her merely the jus tenendi. She can neither alien nor de- MAY TERM, 1863. 273 vise it. She holds it really for the benefit of her husband during his life, and for his children upon her death. He cannot be ejected by the wife. In the language of Mr. Jus- tice Vredenburgh, "he is entitled to live in her house and to cat at her table." Upon her death he becomes the owner of the property for life, as tenant by the curtesy. Naylor v. Field, 5 Datcher 287 ; Johnson v. Cuimniiis, Februarij T., 2863. He has, for all practical purposes, as full enjoyment of the property for his lil'e, as he would have if the legal title were in himself, save only that he cannot alien or encumber it. The essential difference is, that while the title is in the wife it is beyond the reach of the husband's creditors. Such a' transaction is in itself calculated to awaken suspicion and challenge investigation. It affords an easy and convenient; cloak for fraud, with little inconvenience to the husband, while the title remains in the wife, and equal facility for re- storing the title to the husband the moment the claims of creditors are compromised. It fiu-nisiies no adequate pro- tection to the rights of the wife against the unscrupulous im(K)rtunities of the husband. Such a transaction has, in my judgment, but little claim to the favorable consideration of a court of equity. The complainant is entitled to relief The land having been purchased with the money of the husband, there is a resulting trust in his favor. The wife will be declared a trustee for the husband, ft)r the benefit of the creditors. I'he precise form of relief will be best settled when the de- fendants, who hold encumbrances created by the wife, shall have been heard. As at present advised, I thiidc the proper mode of relief would be to (lire(;t the property to be sold, and the proceeds applied, after satisfying cncun.ibrances, to the payment of the complainant's claim. No actual fraud is imputed to the wife. Her interest in the proi>erty, as against the husband's creditors, will be se- cured to her to the extent of the value of lu-r dower, in case the title had been vested in the husband, subject, however, to encumbrances created voluntarily by herself. Cited in Smith v. Yreclavd, 1 C. E. Gr. 201 ; Cramer v. Beford, 2 C. E. Gr. 380; Van Kenrcn v. McLaur/lilin, 4 C. E. Gr. 193; V/huicr & Green v. Kirlland, S C. E. Gr. 21 ; Aniiin v. Annin, 9 C. E. Gr. 194; 274 CASES IN CHANCERY. Clinton Station Mj'ij. Co. v. Hummel, 10 C. E. Gr. 47 ; Curpoiter v. Carpenter, 10 C. E. Gr. 197; Persons v. Persons, 10 C\ £". Gr. 259; Carpenter v. Carpenter's Ex'rs, 12 C. E. Gr. 503. Jacob Miller ??.s. Elizabeth L. Gregory. 1. A defendant cannot pray anything In his answer but to be dismissed the court. li" he has any relief to pray, or discovery to seek against the tompiainant, he must do so by cross-bilL 2. An answer to a bill to foreclose cannot draw in question the fairness and validity of a sale, the purchase money whereof the mortgage was given to secure, or impeach the contract on which the title of the mort- gagor is foundcid. Tliese matters can only be drawn in question by cross- bill. Ogden, for complaiuant. Fleming, for defendant. The Chaxcellor. The defence which the defendant seeks to set up by lier answer, can only be made available by cross- bill. A defendant cannot jiray anything in his answer but to be dismissed the court. If he has any relief to pray, or discovery to seek against the complainant, he must do so by cross-bill. Lube's Eq. PL 55, 142 ; 3 DankWs Ch. Pr. 1742. There are, it is true, general allegations in the answer that nothing is due upon the complainant's mortgage, and that it was obtained by false and fraudulent representations. But the substance of the defence is, that the defendant was fraudu- lently induced to become the })urchaser of the mortgaged premises from the complainant at a price beyond its real value, and to give the mortgage now sought to be foreclosed to the complainant, for a portion of the purchase money. It draws in question the fairness and validity of the sale made by the complainant to the defendant, and seeks to im- peach the contract on which the title is founded. These matters, if available at all as a defence to this suit, can only be drawn in question l)y cross-bill. The complainant is en- titled to the benefit of his answer to these charges of fraud. But admitting the defence to be available, it is not sus- tained by the evidence. The material averments upon which MAY TERM, 1863. 275 Moores v. Moores. the defendant relies to sustain the defence, consist of new matter, not responsive to the bill. Of the truth of these averments the answer is no proof. They must be established by evidence. Neville v. Demeritt, 1 Greenes Ch. li. 335 ; Fisler V. Porch, 2 StoeJcL 248 ; Stevens v. Post, 1 Beas. 408. There is a total failure of proof to sustain the case pre- sented by the answer. All that the proof establishes is, that the defendant paid too high a price for the land. There is no satisfactory proof of fraud, or of such abuse of confidence as will entitle the defendant to relief in equity against the mortgage. Cited in Graham v. Berryman, 4 C. E. Gr. 34 ; Hill v. Davison, 5 C. E. Gr. 229 ; O'Brien v. Hidjish, 7 C. E. Gr. AIQ; Allen's Ex'rs v. EoU, 10 a E. Gr. 166. Israel W. Moores vs. Mary E. Moores. 1. An .answer to a bill for divorce on the ground of desertion, which seta cp as ^ defence a general and vague charge of cruelty on the part of the husband, without specifying any act of cruelty, or making any statement from which it can be discovered in what the cruelty consisted, is radically defective. 2. The defendant is bound to state in his answer all thecircumstance.4 of which he intends to avail himself by way of defence, and to apprise the complainant in a clear and unambiguous manner, of the nature of the case he intends to set up. 3. Evidence must be confineart of the defendant. There is no pretence of any peculiar debility or physical infirmity on the part of the wife ; no allegation of any violence or com- pulsion on the i)art of the husband. Her own evidence shows that she continued to cohabit with her husband prior to the birth of her child, and that a few weeks subsequently she voluntarily returned to his bed. The physician in attend- ance u[)on her during her confinement has not l)een examinetl. The case, in all its essential features, falls far short of the case made by the petitioner in Siiaw v. oliaw, 17 Conn. 189, 280 CxiSES IN CHANCERY. Moores v. Moores. which was heUl by the court iusufficient to warrant a divorce ou the grouiul of cruelty. The coiuhicfc which will justify the wife in abandoning her husband, must be such as wouhl constitute a ground for divorce or alimony. Bailer v. Builcr, 1 Parsons' 8eL Cas. 329 ; Lor/an v. Logan, 2 B. Monroe 142 ; Bishop on 31. & I)h., § 526. I find notlilng in the evidence to establish the charge of cruelty, or to justify the desertion of the complainant by ids wife. No opinion is designed to be intimated in favor of the competency of the wife as a witness. That objection was not raised nor consiiiered. The second ground of defence is, that the wife has lived apart from her husband with his consent. The evidence shows that the wife left her husband without his knowledge or consent, on the thirteenth of December, 1856. On the second of February, 1857, within two months afier the desertion, written articles of separation were en- tered into by the [)arties, in which, after reciting that unhappy diflferences subsist between them, " for which they are agreed to live separate," the com[)lainant amotig other things, covenants *' that he will permit his said wife, from henceforth during her life, to live separate from him, and stay and reside at such place or places as she pleases." After the execution of the agreement, tliere is no pretence that the husband has ever expressed his dissent from the agreement, or his desire to terminate it; or has ever, directly or indi- rectly, requested his wife to return to his house, or intimated his willingness that she should do so. It is well settled that a more separation of husband and wife does not constitute desertion within the meaning of tite statute. To constitute desertion, the wife must absent her- self from her husband of her own accord, without his consent,, and against his will. Drake v. Drake, Halst. Dig. 385, " Divorce,'^ § 1 ; Jennings v. Jennings, 2 Bcas. 38 ; Cook v. Cook, Ibid. 263; Bishop on M. & Div., § 511. But it is urged that the act of the wife in leaving her MAY TERM, 1863. 281 husband without justifiable cause, and without his consent, was a wilful act of desertion. That s!ie has never since re- turned, or expressed a wilh'ngness to do so, but on the con- trary declares that it was then, and ever since has been, her fixed determination not to live with the complainant as hh wife. Hence, it is argued that the desertion was wilful, con- tinued, and obstinate. The argument, however plausible, is not sound. The complainant is before the court, seeking redress for a wrong done by the defendant in refusing to discharge her matrimonial obligations. But what right has he to complain of any act, as a violation of his rights, which was done with his assent. The general maxim of the law is volenti nonfii injuria. If the complainant has sustained no injury, he has no ground for redress. Adtnitting that the* agreement for separation by the husband and wife was not bintling, that the conduct of the wife in absenting herself from her husband was unjustifiable and even criminal, it will not at all aid tiie complainant's case. Adultery is not less a crime if committed with the husband's consent; but no principle is better settled, or founded upon clearer reason, than that no divorce in such case will be granted at the instance of the husband. Nor is the case at all altered by the declared unwillingness of the wife to return to lier husband. Tiie right of the husband to redress must depend, not upon the intent, but upon the overt act of the wife. The simple inquiry is, has the wife, for the space of three years, absented herself from her husband with- out his consent and against his will? If she has not, her desertion is not, within the contemplation of the law, wilful and obstinate. Tn Bufier v. Butler, 1 Parsons^ Sel. Cas. 335, v/here this question was under consideration, the court said : "Although no court determining on the marriage relation, recognizes such consent separations as arrangements strictly legal ; yet, when it is clearly shown that the withdrawal of a wife or husband from mutual eoliabitation, has been the result of such an understanding or agreement; or where the with- drawal of one has received the subsequent approbation of the other, the continuity of absence, under such circumstances, is 282 CASES IN CHANCERY. not a wilful and malicious desertion. The malice of the de- sertion arises from its being the perverse act of the one, in refusing the performance of the matrimonial obligations and duties, which the otiier has the legal riglit to require. But when such separation has been the result of mutual arrange- ments, and these clearly established in proof, then each is in equal fault in this pirticuhir, and neither can claim a legal right against the other, in c;)nsequence of an act in which he or she has been an cqu U participant. S:ich assent or acqui- escence, however, are revocable acts; and if either party per- sists in a state of separation after sucli revocation, he or she thenceforth occupies the position of a party quitting cohabita- tion on his or her own motion." It is further ari>;ued that a voluntarv agreement by husband and wife to live separate is not regarded by the courts as binding, and hence it is insisted that the agreement of the hus- band can constitute no defence for the desertion of the wife. It is true tiiat courts do not favor agreements by husband and wife to live apart. They are regarded as against the policy of the law, and although not treated for all purposes as abso- lutely void, they constitute no bar to an action by either of the parties for a restitution of marital rights. Nor does it oper- ate, in the eye of the law, as a release of either of the parties from their matrimonial obligations. It will not, therefore, be permitted to stand in the way of the restitution of such rio'hts and the enf)rceinent of such obligations. But the j)rinci[)le is invoked l)y the com[)laiiKint, not for the purpose of sustaining the policy of the law and enforcing the perform- ance by the wife of her conjugal duties, but for the purpose of destroying the marriage relation, in direct contravention of the policy of the law. It would be a gross perversion of the princii)le to abrogate the contract under color of main- taininii; the rights of the husband, anear6 v. Carr, 2 G/-ee/i's C/i. i^. 513 ; Penny v. Martin, 4 JoA?is. CA. A\ 566. The Chancellor. The defendant; by deed bearing date on the first of A])ril, 1861, conveyed to the complainant, for ,292 CASES IN CHANCERY. Weart v. Eose. the consideration of $11,500, a farm in the township of Sw- ing, described in the deed as "containing about one hundred and fifteen acres of land." By subsequent measurement, it was ascertained that the farm in fact contained but one hun- dred and eight acres and eighty-eight hundredtlis, or about six acres less than it was described in the deed to contain. The complainant gave his bond and mortgage for $5500, a part of the purchase money. The bill alleges that the price agreed to be paid for the farm was $100 per acre, and asks that the complainant be permitted to redeem the mortgage by the payment of the balance justly due thereon, after de- ducting therefrom the price of the deficiency ascertained to exist in the quantity of acres as described in the deed. The relief is sought: 1. On the ground of fraud. 2. Of mutual mistake. The contract for the purchase of the farm was originally made by Edward Nickleson, the father-in-law of the com- plainant, and at his instance the deed was made by the de- fendant to the complainant. The bill charges that the farrc was represented by the defendant to Nickleson, at the time of making the contract, to contain one hundred and fifteeo acres, and that at the time of making such representations^ and at the time of the delivery of the deed, the defendant well knew that the representations were false and fraudu- lent, and that there was a considerable deficiency from that amount; and that the defendant also exhibited a map and plot of the farm, with the measurements and contents thereon stated, which he well knew were incorrect and calculated to deceive, and which were exhibited to the complainant and to Nickleson for that purpose. The ansvver admits that he ex- hibited the map and {)lot of the farm, as charged in the bill, and stated his belief that the number of acres were truly slated thereon, but fully and explicitly denies that the repre- sentation was fraudulent, or that it was false within the knowledge or belief of the defendant. It appears, from the answer and from the evidence in the cause, that the land in question was part of a farm belong- MAY TERM, 1863. 293 Weart v. Rose. ing to Ebenezer P. Rose, and which was devised by hira to his two sons, Jonathan F. Rose and Samuel K. Rose, the de- fendant. Prior to the year 1840, on the petition of Jonathan F. Rose for partition, the farm was divided between the two brothers, by commissioners appointed by the Orphans Court, and the tract conveyed to tiie complainant was assigned to the defendant, as his share under the will of his father. The commissioners caused a survey and map of the entire premi- ses to be made, by which the share assigned to the defendant is described as containing one hundred and twenty-eight acres and three-quarters. That map, in the familiar hand- writing of Thomas Gordon, an experienced surveyor, was delivered to the defendant, on his coming of age, by his guardian, as the evidence of his title. It was exhibited by the defendant to Nickleson at the time of the contract, and delivered to the complainant with the deed for the premises. By deed dated on the seventeenth of June, 1852, the defend- ant conveyed to his brother, Jonathan F. Rose, a part of the tract assigned to him by the commissioners, which is de- scribed in the deed as containing twelve acres, more or less. Assuming the quantity of land thus conveyed to be truly stated at twelve acres, it left in the balance of the tract one hundred and sixteen acres and three-quarters, or about one hundred and seventeen acres. The farm was thereafter as- sessed as containing one hundred and seventeen acres. The defendant, for years prior to the sale to the complainant, paid tax for that quantity of land. It does not appear tiiat the defendant ever had the tract surveyed, or that he had any evidence of the quantity of land contained in the farm, other than that furnished by the map of the commissioners. He had no reason to suspect the accuracy of that survey, nor does it appear from the evidence that its accuracy ever was suspected, by himself or by any one else, until long after the conveyance to the complainant. It was subsequently ascertamed that the deed to his brother, instead of twelve acres, contained about fourteen acres, which left the balance of the tract as described in the commissioners' map at one 294 CASES IN CHANCERY. Weart v. Eose. hundred and fifteen acres, instead of one hundred and seven- teen acres, as previously estimated. On the twelfth of De- cember, 1860, five days before the sale to Nickleson, the defendant offered the farm for sale by the acre, and described it in the conditions of sale, as containing about one hundred and fifteen acres. At the time of the contract, the ma[) was exhibited by the vendor as evidence of the quantity con- tained in the tract originally allotted to him by the commis- sioners. The parties went to a surveyor to ascertain hov/ much was included in the tract conveyed by the defendant to Jonathan F. Rose, but no inquiry was made as to the area of the entire tract. Both parties appear to have relied upon the accuracy of the map and survey made by the commis- sioners, and it was natural that they should have done so. By actual measurement, it appears that the contents of the farm as designated on the map are erroneous, and that its real contents, instead of one hundred and twenty-eight acres and three-quarters, are about six acres less. The first circumstance relied on as evidence of a fraudulent intent on the part of the defendant is, that in the year 1857, he advertised the farm for sale, as containing about one hun- dred and twenty acres. The farm was then supposed to contain about one hundred and seventeen acres. If this circumstance could have any significancy as indicating an intention to defraud, it surely could indicate no intention to defraud this complainant. It appears, however, that in 1851 he mortgaged the farm to his mother, describing it as con- taining about one hundred and twenty acres. It was then supposed to contain one hundred and twenty-eight acres and three-quarters. In 1855, after the conveyance to his brother, Forman, he mortgaged the residue of the tract to him, describ- ing it as containing about one hundred and twenty acres. It was then supposed to contain one hundred and seventeen acres. In 1855, he advertised it for sale, as containing about one hundred and twenty acres. These circumstances show that the adjunct of quantity was used as descriptive merely, not as indicating the precise contents of the farm. It affords no MAY TERM, 1863. 295 Weart v. Rose. evidence of a fraudulent intent, either as to the defendant or as to any other party. 'L'he only material testimony touching the charge of fraud is that of Dr. John W. Scudder. He testifies that before the sale the defendant called on him, in company with his brother, Fonnan. At their request he made a rough estimate of the quantity of land contained in the lot sold by the defendant to his brother. He told them it would be more advantageous to sell by tiie lump, than by the acre. He adds : " I have often heard it said there were one iiundred and twelve acres in the farm of defendant. I supposed the contents of the farm would be less than one hundred and twelve acres." And in answer to the question, whether he stated to defendant that his farm would not hold out one hundred and twelve acres, he answers : " I am not positive, but I think I did tell him that it would hardly hold out, if liis survey was correct." If this evidence is taken as literally true ; if, in fact, the wit- ness apprised the defendant prior to the contract of sale that liis farm would not hold out one hundred and twelve acres, it is strong evidence in support of the cliarge of fraud. The witness is a gentleman of respectability, whose veracity is unquestioned. But upon the face of his testimony, there is reason to apprehend that he has fallen into a serious mistake as to the number of acres which the farm was supposed to contain. The witness states that he was called upon to cal- culate the quantity of land in the lot sold by the defendant to his brother, Forman. He did calculate it, and either he, or the defendant, or his brother, deducted it from the whole contents of the farm marked on the map. The map ex- hib'ted was the comnjissioners' map, on which the whole con- tents were marked as one hundred and twenty-eight acres and three quarters. The witness does not allege that he calculated the contents of the entire farm, or that he had any knowledge or suspicion of the error which exists on the com- missioners' map. His conclusion was arrived at simply by deducting the number of acres in the lot conveyed by the defendant to his brother, from the quantity stated on the 296 CASES IN CHANCERY. Weart v, Eose, commissioners' map to be in the whole tract allotted to th^ defendant. That never could have shown a result less than one hundred and twelve acres. It would have shown a result less than one hundred and seventeen acres, which the tract had been supposed to contain, and it might, according to the testimony of one of the witnesses, have shown a result of a fraction of an acre less than one hundred and fifteen acres, but it never could have shown the result which Dr. Scudder supposes it did. The probability of this mistake is greatly strengthened by the statement of the witness, that he had often heard it said that the defendant's farm contained one hundred and twelve acres. Now there is not the slightest evidence in the cause, that the farm was ever supposed to contain but one hundred and twelve acres. No other witness in the cause has ever heard of it. By the commissioners' map, the farm was said to contain one hundred and twenty-eight acres and three quarters, and deducting the land estimated to have been con- veyed to Forman, there remained one hundred and seventeen acres. The farm was assessed at one hundred and seventeen acres. Taxes for years were paid for that amount, and no other witness pretends that he ever heard it contained less. The farm of Forman Rose did contain about one hundred and twelve acres. That farm the witness had partially run out, and it is not improbable that the two were confounded in his mind. Aside, therefore, from any evidence on the part of the defendant, it would be unsafe to regard the charge of fraud as sustained by this testimony. The answer of the defendant, and the evidence in support of it, removes all doubt upon this point. The defendant, by his answer, refers to this very interview with Dr. Scudder. as evidence in his behalf. He would scarcely have referred to it if he had known, as he must have done, if tiie recollec- tion of the witness of the quantity of acres supi)osed to be in the farm is correct — that it furnished evidence of his fraudulent conduct. Forman Rose, moreover, who was pre- sent at the conversation, testifies that nothing whatever was MAY TERM, 1863. 297 WearL v. Rose. said by Dr. Scudder in regard to the farm containing less than one hundred and twelve acres. What tiie doctor did say was, that the farm wouhl not hokl out one hundred and seventeen acres, as had been supposed. This, I think, is the clear result of the evidence. The second ground of relief is, that the evidence shows a case of mutual mistake, and that in equity the complainant is entitled to a deduction from the price corresponding to the deficiency in the quantity of acres specified in tiie deed. The general rule, as laid down by Chancellor Kent, is, that where it appears by definite boundaries, or by words of quali- fication, as " more or less," or as " containing by estinaation," or the like, that the statement of the quantity of acres in the deed is mere matter of description, and not of the essence of the contract, the buyer takes the risk of the quantity, if there be no intermixture of fraud in the case. 4 Kent's Com. 467 ; Mann v. Pearson, 2 Johns. R. 37 ; Marvin v. Bennett, 26 Wend. 169 ; Stebbins v. Eddi/, 4 3Iason C. (7. i^. 414 ; Powell V. C/ark, 5 Mass. R. 355 ; 1 Ston/s Eq. Jur., § 144, a ; 2 Washburn on Real Prop., 630. So where the land is sold by certain boundaries, or for so much for the entire parcel, any surplus of land over the quantity given belongs to the vendee, and the price cannot be increased or diminished on account of disagreement in mea- sure or quantity. 3Iorris Canal Co. v. Einniett, 9 Paige 168 ; Inyiis V. McCrummin, 12 3Iartin's R. 425 ; Gormley v. Oakcy, 7 Louis. R. 452. The principle is embodied in the Louisiana Code, Art. 2471. But where the sale is by the acre, and the statement of the quantity of acres is of the essence of the contract, the pur- chaser, in case of a deficiency, is entitled in equity to a cor- responding deduction from the price. 1 Sugden on Vendors 369 ; Barnes v. Gregory, 1 Head's R. 230. There is a further qualification of the general rule, viz. where the difference between the actual and the estimated quantity of acres of land sold in the gross, is so great as to warrant the conclusion that the parties would not have con- 298 CASES IN CHANCER.Y. Weart v. Rose. tracted liad the truth been known, in such case the party injured is entitled to relief in equity on the ground of gross mistake. 1 Ston/s Eq., § 141 ; Belknap v. Sealey, 2 Dn,er 570; Qiicsnd v. WondHef, 2 Hen. & Mmi. 173, note; Nelson V. Mdtthews, Ibid. 161; Hdrr'ison v. Talhott, 2 Dana 258; Couse V. Boyle^, 3 Green's Oh. R. 212. The land conveyed to the complainant is described by metes and bounds. The corajilainant has the distinct thing for which he contracted. The complaint is, that there was an over estimate of the quantity of acres contained in the tract. It is described as containing about one hundred and fifteen acres. Its actual contents are one hundred and eight acres and eighty-eight hundredths, showing a deficiency of a fraction over six acres. The deficiency is not sufficient to warrant the interference of the court on the ground of gross mistake. No case has gone so far. There is no ground for assuming that-the purchase would not have been made at the price stipulated, had the true quantity of land been known. Mr. Nickleson has not so stated. Nor has the vendor ever oflfered to sell his farm below the price stipulated. He has repeatedly been offered more. There was no absolute repre- sentation of the quantity of acres contained in the tract by the vendor as within his knowledge. It is expressly denied by the answer. The whole evidence of both parties shows that the representation of quantity was but an expression of belief, founded on the statement contained in the commission- ers' map. The fact that the parties went together to a sur- veyor for a computation of the (quantity sold off the farm, shows that the reliance was upon the map, rather than upon any representation of the vendor. The case rests on the ground that the sale was made, not in gross, but by the acre. Assuming that the testimony of Mr. Nickleson, upon this point, is strictly true, and that so far as it conflicts with the testimony of the defendant, it is entitled to full credit, it fails to establish the fact that the sale was made by the acre. The utmost that it can be deemed to establish is, that the negotia- tions for the sale were conducted upon that basis. The con- MAY TERM, 1863. 299 Robert v. Hodges and Fuller. tract iiself is in writing. It bears date on the seventeenth of December, 1860, more than three months before the deed was del/'vered. By it Rose agrees to sell, and Nickleson to buy, all that certain farm and tract of land owned and oc- cupied by Rose, in the township of Ewing, containing about one hundred and fifteen acres, for the sum of eleven thousand five hundred dollars. There is no mistaking the import of the contract. Its terms are clear and precise. It is drawn by experienced counsel. It doubtless embodies, as it was designed to do, and as the law conclusively presumes it does, the meaning of the parties. Whatever the previous negotia- tions may have been, the contract eventually made was a contract for the sale of a specific tract, not by the acre but in gross, at a stipulated price for the whole farm owned and occupied by the vendor. The case is strongly analogous to that of Stebbins v. Eddy, 4 Mason 414, and in principle is virtually controlled and decided by it. The bill must be dismissed. Cited in Andrews v. Rue, 5 Vr. 405. Sandeeson Robert vs. Edward F. Hodges and William Henry Fuller. 1. A court of equity has the power to aid a judgment creditor to reach the property of his debtor, either by removing fraudulent judgments or con- veyances which obstruct the plaintiff's remedy under the judgment, or by appropriating in satisfaction thereof, rights or equitable interests of the defendant, which are not the subject of legal execution. 2. If a creditor seeks the aid of this court against the real estate of hia debtor, he must show a judgment at law creating a lien on such estate; if he seeks aid in regard to the personal estate, he must show an execution giving him a legal preference or lien on the goods and chattels. 3. To reach an equitable interest of tlie debtor, the creditor must first have taken out execution at law, and have required it to be levied or re- turned, so as to show a failure of his remedy at law. Equity will only grant its aid to enforce legal process, when it appears that the legal remedy of the complainant is exhausted. 4. A creditor at large, or before judgment having no specific lien on hit 300 CASES IN CHANCERY. Robert v. Hodges and Fuller. debtor's property, is not entitled to the interference of equity, by injunction, to prevent the debtor from disposing of his property in fraud of his cred- itor. 5. An attaching creditor, having a lien upon the property of his debtor by authority of the statute, prior to the recovery of judgment, is entitled to the aid of a court of equity to enforce his legal right. 6. If the court, where judgment is recovered, have jurisdiction of the person of tlie defendant, and of the subject matter of llie suit, its conclu- siveness cannot be questioned in the forum of another state where it ia Bought to be enforced. 7. A trust deed by the husband for the benefit of the wife, purporting to be given to secure certain funds received from the wife, but where no such funds were actually received by the husband, is fraudulent and void as against creditors. 8. The filing of exceptions to an answer, constitutes no technical objec- tion to the dissolution of an injunction. The court will look into them merely to ascertain whether they relate to the points of tlie bill upon which the injunction rests. Tlie complainant is an attaching creditor of Fuller, one of the defendants. The bill is filed for the benefit of him- self, and of such of the other creditors of Fuller as shall come in under the attachment, and as shall contribute to the expenses of this suit. The material allegations of the bill are, that on the sixth of March, 1863, Fuller was indebted to the complainant in about the sum of $22,140, upon judg- ments recovered in the Court of Common Pleas of the county of Hamilton, in the state of Ohio. That the defendant being so indebted, and being a resident of the state of Massa- chusetts, the complainant sued out of the Circuit Court of the county of Hudson, a writ of attachment against his es- tate, by virtue of which the sheriff attached fifteen lots of land lying in Jersey City, the property of the defendant. That the defendant became seized of the said land in fee in 1854, and continued in possession thereof up till the time of filing the bill of complaint in this cause; but in order to conceal his property, and to defraud his creditors, by a deed dated on the first of January, 1858, he conveyed the said land to Edward F. Hodges, of Massachusetts, bis co-defendant, without any consideration being paid therefor, and that by MAY TERM, 1863. 301 Robert v. Hodges and Fuller. reason of the said conveyance, the complainant is unable effectually to obtain tlie benefit of the said attachment, or to enforce the same against the lands attached. The bill prays, among other things, that the conveyance to Hodges may be declared fraudulent and void, as against the creditors of Fuller, and that the defendants may be restrained by injunc- tion from aliening or encumbering the said land. Upon filing the bill a temporary injuncition was issued pursuant to its prayer. Tlie defendants having answered the bill, now ask a dissolution of the injunction : — first, on the ground that there is no equity in the bill ; and secondly, because the equity of the bill, if any there be, is fully denied by the answer. Jackson and Teese, for the defendants, in support of the motion. Gilchrist, for complainant, contra. Cases cited in support of the motion. Young v. Frier, 1 Stocld. 465 ; Hunt v. Field, Ibid. 36 ; Mehille v. Brown, 1 Harr. 363; Martin v. Michael, 23 3Iiss. 50; Ex parte Fos- ter, 2 Story 131 ; Reeves v. Johnson, 7 H(dd. R. 29 ; Thomp- son V. Eastbwrn, 1 Harr. 100 ; Shinn v. Zimmerniann, 3 Zab. 154 ; Nix. Dig. 4o, § Qd ; Edgar v. Clevenger, 1 Green's Ch. R. 258 ; S. C. 2 Ibid. 259 ; 2 Storif's Eq. Jar., § 1216, 6/ Neate v. Marlborough, 3 Myhie & C. 407, 415 ; Pallinger v. Van Emburgh, 1 Harr. 460 ; Peacock^s heirs v. Wildes, 3 Halst. R.nd; N. A. Ins. Co. v. Graham, 5 Sandf. 8. C. jK. 204; Garivood v. Garwood, 4: Halst. R. 193; Dunham V. Cox, 2 StocJcL 437. Cases cited contra. Hunt v. Field, 1 Stocld. 36 ; Wil- liams V, Miehenor, 3 Slockt. 524 ; Falconer v. Freeman, 4 Sandf. Ch. R. 565; Vreeland v. Bruen, 1 Zab. 214; Mo- hawk Bank V. Atioaler, 2 Faige 54 ; 1 Stockt. 465 ; JLd- sted V. Davison, 2 Stockt. 2l:i0 ; Doughty v. King, Ibid. V^OL. I. T 302 CASES IN CHANCERY. Robert v. Hodges and Fuller. 396 ; Dunham v. Cox, Ibid. 437 ; Edgar v. Cleveiiger, 1 Green's Ch. E. 258. The Chancellor. The question presented by the first ground of objection is, whether an attaching creditor, before judgment, is entitled to the aid of a court of equity, in re- lieving him from the operation of fraudulent judgments or conveyances which obstruct the effectual operation of the attachment. This point Jias been more than once decided in this court, after argument and upon full consideration. Hunt V. Field, 1 StocJct. 36 ; Williams v. Mlohener, 3 Stoold. 520. The principle was adopted as early as the case of Quack- enbush v. Van Blarcom,, decided by Chancellor Pennington, Cited in 1 Stockt. 42, and has been, it is believed, since that time uniformly recognized and acted on. It was intimated upon the argument that a principle thus recognized and adopted in practice, ought not to be disturbed upon a mere motion to dissolve an injunction. I still think that it ought not to be regarded as an open question, and that this objection might properly be disposed of by the mere force of authority. It is better, even in doubtful matters, that the doctrine of stare decisis should be applied, and that justice should be ad- ministered upon fixed and settled principles, and not upon the v&rying or conflicting opinions of successive judges. If, therefore, I regarded the principle as not free from doubt, I should be unwilling to disturb it, either upon this motion, or upon demurrer. But as the point has been twice urged upon the attention of the court, I have examined the question with more care than I should have otherwise deemed necessary, and will briefly state the grounds upon which the doctrine of the court rests. It is a familiar and unquestioned doctrine of equity, that the court has power to aid a judgment creditor to reach the property of his debtor, either by removing fraudulent judgments or conveyances which obstruct or defeat the plaiutifl''s remedy under the judgment, or by appropriating MAY TERM, 1863. SOS Robert v. Hodges and Fuller. in satisfaction of the judgment, rights or equitable interests of the defendant, whicli are not the subject of legal execu- tion. Mlfford's Eq. PL, by Jeremy, 126 ; Cooper^ s Eq. FL 148. If he seeks the aid of the court against the real estate of his debtor, he must show a judgment at law creating a lien on such estate; and if he seeks aid in regard to the personal estate, he must show, not only a judgment but also an exe- cution, giving him a legal preference or lien on the goods and chattels. Edgar v. Clevenger, 1 Green'' s Ck. R. 258 ; Swayze V. Swayze, 1 Stockt. 273 ; Young v. Frier, Ibid. 465 ; Wig- gins V. Armstrong, 2 Johns. Ch. R. 144 ; Hendricks v. Rob' inson. Ibid. 296 ; Brinkerhoff v. Brown, 4 Johns. Ch. R. 671, 678 ; Williams v. Brown, Ibid. 682 ; Clarkson v. Depeyster, 3 Paige 320 ; Beck v. Burdeit, 1 Paige 305 ; Har- rison V. Battle, 1 Dev. Eq. R. 537. So if a judgment creditor seeks the aid of a court of equity to reach the equitable interest of his debtor in lands, or goods or chattels, he must first have taken out execution at law, and required it to be levied or returned, so as thereby to show a failure of his remedy at law. Equity will not, as of course, grant its aid to enforce legal process. It must first appear that the legal remedy of the complainant is ex- hausted. Edgell V. Haywood, 3 Atk. 352 ; Clarkson v. Depeyster, 3 Paige 320 ; Cuyler v. Moreland, 6 Paige 273. It results as a necessary consequence from these princi- ples, that a creditor at large, or before judgment, having no specific lien on his debtor's property, is not entitled to the interference of equity by injunction, to j)revent the debtor from disposing of his property in fraud of his creditor. Angell v. Draper, 1 Vernon 399 ; Shirley v. Watts, 3 Atk. 200 ; Wiggins v. Armstrong, 2 Johns. Ch. R. 144 ; Hen- dricks V. Robinson, Ibid. 296 ; Mitford's Eq. PL, by Jeremy, 125; Cooper's Eq. PL 149. Under the English statute the creditor acquires no lien upon the land of his debtor, legal or equitable, by virtue of his judgment. The judgment creditor is entitled by the 304 CASES IN CHANCERY Kobert v. Hodges and Fuller. statute to a writ of elegit, by virtue of which one half of the defendant's freehold lands are delivered to him to hold, till out of the rents and profits the debt is satisfied. The title he acquires is derived from the statute. He becomes "tenant by elegit," by virtue of the writ. His interest in the land is an " estate by elegit." 3 Bl. Com. 418 ; 2 Ihid. 161. The effect of the proceeding under the writ is to give the creditor a legal title which he may enforce at law by eject- ment. Unless the creditor sues out the writ, he neither acquires a title to, or lien upon the land, nor can he be said to have exhausted his remedy at law. Upon these grounds it has been held that a court of equity in England will not interfere to aid a judgment creditor to reach his debtor's equitable interest in real estate, unless he first sue out a writ of elegit. Neate v. The Duke of Marlborough, 9 Sim. 60 ; 3 Mylne & Craig 407. Upon the authority of this decision of Lord Cottenham, in Neate v. The Duke of 3Iarlbo)vugh, it was held by the Superior Court of New York, that a judgment creditor can- not file a bill to set aside conveyances which are alleged to be an obstruction to an execution, until such execution has been actually issued. North Amer. Ins. Co. v. Graham, 5 Sandf. S. C. R. 197. The latter decision proceeds upon the assumption tliat there is a perfect analogy between an elegit in England, and a^. fa. in the state of New York. The analogy certainly does not hold between the elegit in England, and the fi. fa. under the laws of this state, and the decision cannot be safely regarded as authority here. But all the cases proceed upon the principle that the judg- ment creditor, in order to be entitled to the aid of a court of equity in enforcing his remedy by removing obstructions from his path, must have acquired title to, or a lien upon, the spe- cific thing against wiiich he seeks to enfon-e his judgment. He must complete his title at law before coming into equity. Unless he has established his title to, or lien upon, the pro- MAY TERM, 1863. 305 Robert v. Hodges and Fuller. * perty of his debtor, he has no right to interfere with his debtor's disposition of it. Such lien the creditor does acquire under our law by the service of the writ of attachment. The law recognizes the claim of the attaching creditor, after it has been verified by affidavit as prescril)ed by the statute, as a subsisting debt for the purpose of creating the lien. Having that lieu by authority of the statute, prior to the recovery of judgment, he is entitled to the aid of a court of equity to en- force his legal right. The statute, for various purposes, re- cognizes and enforces this right, although it may be that the claim may eventually prove to be unfounded. The objection to the interference of a court of equity, that the claim of the attaching creditor is not ascertained, if it be entitled to' any consideration, can have no application in the present case, for the plaintiff's claims against the defendant have, in fact, been established byjudguient. The fact that the judgment was recovered in another state, does not impair the conclusiveness of the judgment as to the amount due. If the court, where the judgment is recovered, have jurisdiction of the person of the defendant, and of the subject matter of the suit, its conclusiveness cannot be questioned in the forura of another state where it is sought to be enforced. Moulin v. Insurance Co,., 4 Zab. 222. The better opinion is, that a foreign judgment is not ex- aminable in tiie courts of Westminster Hall. 2 Stoi-y^s Eq. Jar., § 1576. It is further urged that the injunction should be dissolved, because the equity of the bill is fully denied by the answer. The bill charges that the lands attached are, in fact, the property of Fuller, and that they were conveyed away with- out consideration, to defVaud his creditors. The material facts disclosed by the pleadings are, that in January, 1857, the complainant was a judgment creditor of Fuller, the de- fendant, to an amount exceeding $20,000. That Fuller then was, and since 1854 had been the owner in fee, and in pos- session of the lands attached. That his title to said lands was kept secret, and that the deed was not recorded until the 306 CASES IN CHANCERY. Robert v. Hodges and Fuller. sixteenth of May, 1857, after he had parted with the legal title, and was sent to the clerk's office to be recorded at the same tinae with the deed from Fuller to Hodges. That by deed dated on the first of January, 1857, two days after the recovery of the complainant's first judgment, and twenty days before the recovery of his second judgment. Fuller conveyed the said lands to Hodges, an attorney-at-law, and the professional adviser of Fuller, without any valuable consideratioa whatever being paid therefor, although the deed expresses a consideration of $22,000. That at the date of the conveyance, Hodges executed to Fuller a mortgage for $11,- 050, which, together with a mortgage executed by Fuller to bis grantors fov $10,950, and which continued a subsisting encumbrance when the land was conveyed to Hodges, would make the entire consideration of $22,000, expressed in said deed. That the mortgage from Hodges to Fuller for $11,050, was cancelled on the fourth of September, 1862, although Hodges never paid the said mortgage or any part thereof. These facts are not denied by the defendants in their an- swers, and, unexplained, they fully sustain the charge of fraud made by the bill. The defence is, that the conveyance made by Fuller to Hodges was in fact made in trust for the wife of Fuller, and as a security for inoney which he had received, or was about to receive, being the avails of lands owned by her in or near Chicago. The case, as presented by the separate answers of the defendants, is open to exception. It does not appear that Fuller, prior to the service of the writ of attachment, had received any portion of his wife's funds. This is the corner stone of the defence, upon which the entire structure rests. For if the husband did not re- ceive the funds of the wife, even if the conveyance was made for her benefit, it was fraudulent and void as against credit- ors. Hodges, to whom the conveyance was made, admits that he does not know of his own knowledge, that Fuller received funds belonging to his wife. Upon this point he MAY TERM, 1863. 307 Robert v. Hodges and Fuller. answers, solely upon information and belief, that the husband received about the sum of $10,000. Fuller, the husband, by his answer, sworn to on the twenty- seventh of June, 1863, Bays that he hath received funds belonging to his wife, avails of the sale of her real estate, to the sum of at least tea thousand dollars. This may be true, and yet every dollar of the money may have been received after the bill iu thi-s cause was filed. The answer is silent as to the time when the money was advanced. Hodges, in his answer, states that at the time when the mortgage was made by him, he was in- formed and then believed, and still believes that Fuller re- ceived of his wife's money the sum of about ten thousand dollars. This is clearly a mistake, and is in direct conflict with the answer of Fuller, and with previous statements in Hodges' own answer. Fuller, in his answer, states that his wife was about to receive certain funds arising from the sale of a portion of her lands, which she was willing should be used by Fuller, and that thereupon, on consultation, it was agreed that Hodges should take the title and give his notes and mortgage, which should be held as security for the said funds, as the same should be received by Fuller. Hodges himself says, that after conference between. himself and Ful- ler, he proposed that the lands should be conveyed, and a mortgage given for the purchase money, which mortgage, and the notes secured thereby, should be held in trust for the wife when the said money should be taken by Fuller. This proposition was acted upon, and, at the request of Ful- ler, Hodges took the conveyance, and gave the notes and mortgage to secure the same. The statement, therefore, of Hodges, that at the time the mortgage was given he was in- formed, and then believed that Fuller had received of his wife's money the sum of about ten thousand dollars, must be erroneous. It is true, that afterwards the notes and mort- gage were cancelled, and an arraiigeuK'nt made by which Hodges acted as the owner of the land, as trustee of Mrs. Fuller. But this was not the original arrangement. The trustee of Mrs. Fuller, if she was iu fact the equitable owner, 308 CASES IN CHANCERY. Eobert v. Hodges and Fuller. would not have given a mortgage on the land to be held in trust for herself. But she could not have been the equitable owner, for the trust under the deed, if any such was intended to be created, was utterly void, not having been manifested in writing. The answers do not show satisfactorily that ten thousand dollars, or any other sum, was advanced by the wife out of her funds, for the use of her husband, either at the time the mortgage was given, or at any other time prior to the service of the writ of attachment. There are other circumstances connected with the trans- action, as disclosed by the answers, which are open to grave observation. As already intimated, there was no written declaration or manifestation of the trust. The trust, if any, was a secret one, and so remained for years after the de- livery of the title. The deed of conveyance from Fuller to Hodges is absolute upon its face. The land was purchased by Fuller of Coles, in 1854, for $14,G00. It was conveyed by Fuller to Hodges, for the alleged consideration of $22,000, subject to a mortgage of $10,950, given by Fuller to Coles, which constituted a part of the price, and which Hodges per- sonally assumed to pay. For the balance of the considera- tion, $11,050, Hodges gave his two notes, at three and six years (whether with or without interest does not apjiear), secured by a mortgage upon the land. The notes and mort- gage are given, not to the wife, for whose security they are alleged to have been given, nor to tiie trustee of the wife, but are made and delivered to the husband, who was to be the debtor of the wife. The whole arrangement was made by the procurement of the husband, between himself and his intimate friend and legal advisor, who became the grantee. Neither the wife herself, nor the trustee of the wife, appears to have participated in any degree in the arrangement, or to have been consulted concerning it. All this is perfectly natural and consistent, if the whole transaction Was designed as a cover for the husband's property, but it seems in the highest degree improbable, that such a transaction should, under the advice of legal counsel, have beeu designed as a MAY TERM, 1863. 309 Eobert v. Hodges and Fuller. bona fide security for the separate estate of the wife, advanced by her or her trustee for the use of her husband. Aside from the extraordinary terms of the arrangement, viewed- as a se- curity for the debt of the husband, the utter inadequacy of the security for the purpose for which it is alleged to have been designed, is enough to cast upon the whole transaction grave suspicion, and, to entitle the comj)lainant to the benefit of a full investigation. The answer of Fuller, moreover, admits that the mortgage given to him by Hodges, in September, 1862, nearly six years after its execution, was caused to be cancelled of record by himself, by direction of Hodges. We have, then, the ad- mitted fact that this mortgage remained in the hands of the husband, under his legal control, nearly six ycai's after its execution, and after its pretended assignment and delivery to the trustee of the wife as a security for his debt. The answer alleges, indeed, that it had never been assigned by recorded writing, though it was in reality assigned and delivered to Richard F. Fuller, the trustee of the wife, with the notes, on the day of its date. But was it assigned by any writing, re- corded or unrecorded ? Was there a legal, valid transfer, either of the notes or of the mortgage, to Richard F. Fuller, (who is admitted to be a brother of the defendant) in trust for the wife? If, in reality, he held the mortgage for the wife's benefit, why was it left in the possession, and under the control of the husband ? The subsequent contracts, alleged in the answers to have been made in regard to the land by Hodges, with the assent of the wife, do not, in my judgment, strengthen the defend- ant's case. They would seem to enure to the benefit of the husband rather than of the wife, and to countenance the charge that the name of the wife is used as a mere cover for the fraud of the husband. But it is unnecessary to j)ursue the subject further. It is not necessary, nor is it intended, to express any opinion upon the real merits of the case as it may be made to appear upon the evidence. The wife may be a bona fide creditor of the husband, and may be entitled 310 CASES IN CHANCERY. Burnham et ux. et al. v. Dalling. to protection. It is enough to say that as the case now stands, tlie equity of the bill is not fully answered. The complain- ant is entitled to a full disclosure and thorough investigation of the alleged equitable interest of the wife, and of those claiming under her. The answers do not contain such a full denial of the equity of the complainant's bill, as entitles the defendants to a disso- lution of the injunction. The filing of exceptions, by our practice, constitutes no technical objection to the dissolution of the injunction. The court will look into them, merely to ascertain whether they relate to the points of the bill u{)en which the injunction rests. Doe v. Roe, 1 Hoplc. 276; 1 Hoffman's Ch. Pr. 357, note 1 ; 1 Barb. Ch. Fr. 642. The motion is denied with costs. Cited in Curry v. Glass, 10 C. E. Gr. 109 : Davis.v. Dean, 11 C. E. Or. 437 ; Bigelow Blue Stone Co. v. Macjee, 12 C. E. Gr. 393. Elbert L. Burnham and wife and others, m. Robert Dalling. 1. It is within the power of a court of equity to consolidate actions, with or witliout the consent of the coiui)Iainanti;. 2. The order for consolidation is not of right, hut is matter of discretion, and upon sucli terms as the court may direct. 3. Where a guardian has failed to account as required Iiy Luv, and sets up a prior account as a bar to accounting in this court, and a decree for au account is made, the complainant will be allowed cosis up lo the decree. 4. A party in interest having died since tlie argument, and before the signing of the decree, the decree and orders in the cause should be signed and filed as of the diite of the argument. 5. An order for that purpose is necessary. Gilchrist, for complainants, ex parte. The Chancellor. Separate bills were filed by three children of William Bale, against the defendant as their guardian, for an account. A decree was ordered in each case that the defendant should account. The court is now asked MAY TERM, 1863. 311 Burnham et ux. et al. v. Dalling. by the complainants to consolidate the suits. Our statute. which authorizes the consolidation of suits at law at the instance of the defendant, does not extend to suits in equity. Nix. Dig. 659, § 59. Books of equity practice are silent on the suhjoct. In The Warden and Fellows of 3Ianchester College v. I.-iherwood 2 Simons 476, sixteen bills had been filed for tithes, by the same plaintiffs against different defendants, The same de- fence having been set up in all the causes, a motion was made on the part of the defendants to consolidate the actions, or that one cause only might be prosecuted to a hearing, and the proceedings in the other causes stayed, the defendants undertaking to be bound by the decree in the first cause. The motion w-as denied, the Vice Chancellor saying that neither in the court of equity nor in the Court of Exchequer, had the practice prevailed of compelling the complainant to consolidate his different suits against several defendants. Similar decisions were made in the Court of Exchequer in the cases of Forman v. Blake, 7 Price 654, and Foreimm v. Soidhroood, 8 Price 572. In the case o9 Forman \. Blake, Chief Baron Richards said : " I have never heard of an orde?-, in the course of my experience, for consolidating causes in equity, nor can I conceive upon what principle it can be done." This opinion is the more»remarkable, as in the earlier case of Keighlcy v. Bron-u, 16 Vesey 344, a similar motion was made on the part of" the defendants to consolidate several actions, and both Sir Samuel Roniilly, by whom the motion was made, and the Chancellor (Lord Eldon) speak of the practice as a familiar one. The only question seems to have been whether it was a speciijt application, or of course. And the next day the Lord Chancellor said he had consulted Baron Thompson of the Exchequer, who had no idea that the motion was of course, though sometimes made under special circumstances. The caution with which the Court of Chan- cery in England interferes with the conduct of a suit, will be found exemplified by the cases of Camming v. Slater, 1 Younge & Coll. 484, and Godfrey v. Maw, Ibid. 485. 312 CASES IN CHANCERY. Bnrnliam etnx. et al. v. Dalling. Of the ))o\ver of a court of equity to consolidate actions, with or without the consent of the complainant, I entertain no doubt. It seems to me to be a power over the conduct of suitors, resting upon the clearest principles, and absolutely- essential to prevent scandalous abuses, and to protect defend- ants against gross oppression. At common law, the consoli- dation of suits is a recognized and familiar exercise of power. Our statute confers no new authority, but is merely declaratory of what the common law is. The common law will not endure a multiplicity of suits growing out of the same title, where the defence in all is the same. 2 Sell. Pr. 143; 2 Archb. Pr. 180. In Cecil v. Brigges, 2 T. R. 639, where both of the causes of action might have been comprised in one, the order was made with costs. The order for consolidation is not of right, but is matter of discretion, and upon such terms as the court may direct. Den V. Kimble, 4 Halst. R. 337 ; Wodey v. Glenhvorth, 5 Halst. R.2U. The same reason* exists for the consolidation of suits in equity as at law, though from the nature of the proceeding, more caqjtiou may be required in the exercise of the power by this court. In The Executors of Conover* v. Conover, Saxton 412, though no formal aj)plication was made for consolidation, Chancellor Vroom recommended it as a measure that would save costs and delay. In that case, the bills were filed by the executors of two different estates. The complainants, in the opinion of the Chancellor, were not only at liberty to proceed as they did, by separate suits, but prudent and cor- rect in doing so; yet, after a decree for account, he declared his conviction that great benefit would result from con- solidating them, so that one investigation and report of the master, and one decree might settle both. In that case, as in this, as the suit was in reality by different complainants, there might have been serious objections to consolidating without consent. As a written consent to the order for con- MAY TERM, 1863. 313 Eandolph et al. v. Daly et al. solidatiou is filed in this case, tliere can be no difficulty on that point. It is worthy of notice that the mode of consolidation at law, is not by uniting tlie several actions in one entire re- cord. 2 Archb. Prac. 180 ; Den v. Kimble, 4 Halst. B. 337 ; Clason v. Church, 1 Johns. Cas. 29. The order for consolidation does not necessarily imply that. The complainants are entitled to costs up to the decree for an account. The defendant failed to account as required by law. He set uj) by way of bar to accounting in this court, an account exhibited in 1853, and failed in his defence. The practice is, in similar cases, to allow the complainants costs up to the decree. Anon. 4 Mad. R. 273 ; Beames' Costs in Eq. 12 ; 3 DnnielVs Ch. Fr. 1 550 ; Seaton on Decrees, 44, 49, 20(j. The wife of one of the complainants, who is a party in in- terest, died since the arijuraent and before the siscnins: of the decree. The decree and orders in the cause should be signed and filed as of the date of the argument. Campbell v. Mesier, 4 Johns. Ch. R. 334 ; Vroom v. Ditmas, 5 Paige 528. An order for that purpose is necessary. 2 DanieWs Chan. P/-. 1219 ; Seaton on Decrees, 393, 394. Thompson E. F. Randolph and Robert J. Randolph, partners, &c., vs. WiLLiAii D. A. Daly and others. 1. Where the Pole design of the bill is to have tlie individual property of one pariner, alleged to have been fraudulently conveyed away by him, applied in satisfaction of a judgment against the firm, another paitner froni-whom no discovery is sought, and ng;iinst whom no relief is prayed, is neither a necessary nor a proper party. 2. A wife is a proper party to a bill filed to set aside conveyances of the V.uSband's property made to her, or in which she has joined, and which are charged to have been voluntary and fraud ident as against creditors of the husband. 3. It is no cause of demurrer to a bill to set aside fraudulent conveyances made by a debtor, that a defendant, to whom part of the property has been conveyed, has no connection with other fraudulent transactions of the 314 CASES IN CHANCERY. Randolph et al. v. Daly et al. debtor. If the defendant is a necessary party to some part of the case as stated, he cannot object that he has no interest in oilier transactions con- stituting a part of tiie entire case. 4. A bill filed by an execution creditor is not demurrable for multifari- ousness because it seeks to set aside fraudulent conveyances, and at the sanje time to reach other property of tlie debtor, which is not the subject of execution at law, and respecting which a discovery is prayed. 5. The transactions charged, being parts of a series of acts all tending to defeat the plaintiff's remedy at law, may properly be united in the game bill. 6. A joint execution upon a judgment for a partnership debt, may be executed not only against the partnership property, but against the sepa- rate estate of each partner, for each is answerable for the whole, and not merely for his proportionate part of the debt. 7. A court of equity will protect and enforce the legal right of an exe- cution creditor at law to levy upon the separate property of each partner of a firm. 8. To entitle an execution creditor to relief, it must appear by the bill that he has exhausted his remedy at law, and that the aid of this court is necessary to enable him to obtain satisfaction of his judgment. 9. The return of the sheriff that the defendants are not, either in their partnership name or as individuals, seized or possessed of any estate, real or personal, which could be seized or taken by virtue of the execution, must be taken as prima facie evidence of the fact, and is suflicient to give the complainants a standing in this court. 10. Certainty to a common intent is all that is ordinarily required in pleadings in equity. SlaigJd, for defendants, in support of the demurrer, Winjleld, for complainants, contra. The Chancellor. To a bill filed by execution creditors of the firm of Daly & Burnet, to obtain satisfaction of the judgment out of the individual projierry of William D. A. Daly, one of the partners, the detcndants demur. 1. Because Adolphus E, Burnet, the other partner of the firm of Daly & Burnet, is a necessary party. The sole de- sign of the bill is to have the individual property of Daly, one of the partners, which is alleged to have been fraudu- lently conveyed away by him, applied in satisfaction of the MAY TERM, 1863. 315 Randolph et al. v. Daly et al. judgment against the firm. No francl or concealment of projjerty is imputed to Burnet; no discovery is sought from him ; no relief is ueedeci or asked against him individually, or as a member of the firm. He is neither a necessary nor a proper party. 2. The second ground of demurrer is that the wife of Daly is not a proper party. The bill charges that the real estate in controversy was formerly owned by Daly, and was conveyed by him and his wife to a third party, and by their grantee was reconveyed to the wife, and by the wife of Daly to his father, in whom the legal title remained at the time of filing the bill. All these conveyances are charged to have been voluntary, and fraudulent as against the creditors of the husband. If fraudulent, the wife was a participant or agent in the fraud. The bill seeks to avoid, as .well the title to her as the title from her. The complainants are entitled to a discovery from the wife, as well as from the husband, touching the consideration of the deeds and the alleged fraudu- lent purpose for which they were executed. 3. The third ground of demurrer is that the bill is multi- farious as to Edward Daly, inasmuch as it unites with the charges of fraud in the conveyances to him, other charges of fraudulent concealment of property on the part of William D. A. Daly, with which Edwartl Daly has no concern or alleged connection. But it is well settled that on a bill to set aside fraudulent conveyances made by a debtor, and for a discovery of iiis property, it is no objection that a defendant, to whom a portion of the property has been conveyed, has no connection with other fraudulent transactions of the debtor. The case against the debtor is entire. If the defendant is a necessary party to some part of the case as stated, he cannot object that he has no intei^st in other transactions which constitute a part of the entire cas6. Attorney General v. The Corp. of Poole, 4 3Iylne & C 31 ; Boyd v. Hoyt, 5 Paige 78 ; Brinherlioff v. Broion, 4 Johns. Ch. R. 671. It is further ur(>:ed that the bill is multifarious in its character as to the debtor himself, because it not only seeks 316 CASES IN CHANCERY. Randolph et al. v. Daly et al. to remove obstructions in the way of the complainants' remedy at law by setting aside fraudulent conveyances, but also seeks to reacii other property of tiie debtor, which is not the subject of execution at law, and in regard to which a discovery is prayed. But this constitutes no ground of demurrer. The sole purpose of the bill is to obtain the aid of this court in enforcing satisfaction of the complain- ants' judgment, out of the property, real and personal, of the defendant, which is alleged to have been fraudulently conveyed, or to be concealed or held in trust so as to be beyond the reach of an execution at law. All. the trans- actions charged are but {)arts of a series of acts, all tend- ing to the defeat of the plaintiff's remedy at law, and may properly be united in the same bill. Cuyler v. Morekind, 6 Paige 273. The last two points were considered and decided in this court at the last term, in the case of Way v. Bragaw, ante p. 213. 4. The fourth cause of demurrer is, that it does not appear that the complainants have exhausted the partnership effects, before resorting to the separate property of Daly, or that the firm of Daly & Burnet is insolvent. It is a familiar principle that a judgment creditor must exhaust his remedy at law, before coming into equity. It is an equally familiar doctrine of equity, that as between the partners themselves, the partnership property must be ap- plied to the ])ayment of partnership debts, before resorting to the individual property of the partners. Yet a joint execution upon a judgment for a partnership debt may be executed not only against the partnership property, but against the sejjarate estate of each partner, for each is an- swerable for the whole and not merely for his proportionate part of the debt. Collyer on Partnership {bth Am. ed.) 818, and note; Herrics v. Jamieson, 5 T. R. 556 ; Abbot v. Smith, 2 W. BL 947. The complainants, therefore, have a legal right, under their judgment and execution at law, to levy upon the separate property of Daly, and having such legal right, they are en- MAY TERM, 1863. 317 Randolph et al. v. Daly et al. titled to the aid of this court to protect and enforce it. It is true, that as between themselves, Daly has a claim in equity against his co-partner for contribution, but this cannot impair the rights, legal or equitable, of the creditor against the propert)' of the individual partners, for each party is clearly liable for the whole amount of the indebtedness of the firm. It is certainly not necessary to aver that the firm is insol- vent, in order to entitle the complainants to relief. The partnership property may be amply sufficient to satisfy all the debts of the firm, yet it may be so covered up, or placed beyond the reach of process, as not to be amenable to exe- cution at law, and to render the interference of equity essen- tial to the ends of justice. All that can be required is, that it should appear by the bill that the complainant has ex- liausted his remedy at law, and that the aid of this court is necessary to enable him to obtain satisfaction of his judg- ment. This does sufficiently appear by the bill in this cause. The complainants allege, that a writ of fieri facias de bovis et terris issued upon the judgment, directed and deliv- ered to the sheriff of the county of Hudson, in which the defendants resided and transacted their mercantile business, and that the sheriff made return to the said writ, that he could not find any goods or chattels of the defendants in the said execution in his county, but had levied upon certain lands therein described, and ai)praised the interest of W. D. A. Daly therein at one dollar, and returned the said writ of execution wholly unsatisfied. The land thus levied upon, and the interest of William D. A. Daly in which was ap- praised at one dollar, is the same land which the bill alleges to have been fraudulently conveyed by Daly, to which it appears that at the time of the levy he had no legal title, and which was not, therefore, subject to a valid levy under an execution at law. The formal levy was obviously made as a foundation of a j)roceeding in equity. By the terms of the writ, the sheriff was commanded to levy upon all t'le estate, real and personal, belonging to the defendants, either as Vol. I. XT 318 CASES IN CHANCERY. In the matter of Weis. partners or as individuals. His return must be taken as at least prima facie evidence that the defendants, neither in theis partnership name nor as individuals, were seized or possessed of any estate, real or personal, which could be seized or taken by virtue of the execution. This is sufficient to give tha complainants a standing in this court. Certainty to a common intent is all that is ordinarily required in pleadings in equity. Story's Eq. PL, § 240, and note 3 ; Cooper's Eq. P/. 181. Tlie demurrer is overruled. ^ In the matter of Morris Weis. 1. A commission under which a party has been found an habitual drunkard, will not be superseded upon a hearing without notice, nor upon ear parts afEdavits, even with the assent of the guardian. 2. The practice in proceedings to supersede a commission, in cases of habitual drunkenness, should be substantially the same as in cases of innacy. 3. The truth of the facts alleged in the petition may be examined either in open court or before a master. Proceeding by reference to a master sidopted as the most convenient, safe, and expeditious course. Van Fleet, for the petitioner. The Chancellor. Under a commission issued out of this court in the year 1854, the petitioner was found an habitual drunkard. The petitioner now asks that the coni mission and proceedings thereon be superseded, on the ground that he is reformed. The petition is accompanied by the affidavit of the guardian of the lunatic, and of a neighbor of the peti- tionet". The court is asked to order a supersedeas of the com- mission, upon the evidence thus presented, without a reference to a master. It is the first time, so far as I am aware, that the question has been presented, and it is proper that the practice should be settled. MAY TERM, 1863. 319 In the matter of Weis. In cases of lunacy, under the English practice, tiie petition for a supersedeas is heard before the Chancellor in person, without a reference. And the commission will not be super- seded without the evidence of physicians and the attendance of the lunatic in person. If the Chancellor doubts, a traverse is permitted, or an issue ordered. Ex parte Bumpton, Mosely 78 ; Ex parte Earl Ferrars, Ibid. 332 ; 1 Collinson on Lu- nacy, 324-6 ; 2 J bid. 746 ; In re Dyce Sombre, 1 Phillips 436; In re Gordon, 2 Phillips 242. In this state the practice has been, in the first instance, to refer the matter to a master for examination and report. In the matter of Pagers, 1 Ilalst. Ch. P. 46 ; In the matter of Price, 4 Ibid. 533. Whatever course may be adopted, I am very clear that a commission ought not to be superseded upon an ex parte hearing without notice, and upon the evidence of affidavits merely, even with the assent of the guardian. In re Dyce Sombre, 1 Phillips 437, Lord Chancellor Lynd- hurst said : '' The party is not found lunatic upon affidavits ; the inquiry takes place under the commission ; witnesses are examined viva voce, the party himself appearing and being examined by the jury. It would be extraordinary, if under such circumstances, the commission could be superseded upon the evidence of affidavits merely." The statute indicates, and the reason of the thing requires, that the practice, in cases of habitual drunkenness, should be substantially the same as in cases of lunacy. In ordinary cases, there would seem to bo less necessity in cases of habitual drunkenness, growing out of the very nature of the investiga- tion, for the attendance of the petitioner or for the evidence of physicians. But even if these should be dispensed with, there is the greater necessity that the investigation siioukl be conducted with care, in conformity with tlie ordinary practice of the court, and to guard, as far as practicable, against surprise or collusion. To require these investigations to be conducted before the Chancellor, wouUl, in most cases, be productive of much inconvenience and expense. To per- 320 CASES IN CHANCERY. In the matter of Weis, rait the commission and the proceedings thereon to be super- seded upon ex parte affidavits without investigation, would be an unwarranted and dangerous departure from the settled practice of the court in similar cases. To adopt the practice of this court in cases of lunacy, and to refer the matter to a master, will be found to be the most convenient, safe, and expeditious course. See flatter of Hoag, 7 Paige 312. The master will have facilities for conducting the investigation with more safety and with less expense to parties, than could ordinarily be expected in an investigation before the court. He may, if it should appear necessary or expedient, require the evidence of physicians, or the personal attendance of the petitioner. The guardian, as well as the party at whose instance the commission was sued out, or other person in- terested, should have an opportunity of appearing before the master, or it should satisfactorily appear that the proceeding is had with their consent. An order of reference will be made accordingly. O^SES ADJUDGED IN THE COURT OF CHANCERY OF THE STATE OF NEW JEESET, OCTOBER TERM, 1863. The Delaware and Raritan Canal and Camden AND Amboy Railroad and Transportation Com- panies vs. The Camden . and Atlantic Railroad CojMPANY, The Raritan and Delaware Bay Rail- road Company, and others. 1. The restraining power of a court of equity is exercised for the pro- tection of rights, the existence of which are clearly established, and so far only as may be essential for the protection of those rights. 2. The phraseology of the clause under which the exclusive privileges are claimed by the complainants, " it shall not be lawful, &c.," {Patnph. L. 1832, p. 80,) is the form in which the faith of the state is usually pledged, and in which contracts with corporations, touching the exercise of exclu- sive franchises under legislative autliority, are entered into. It is none the less obligatory that it is not in form a contract. 3. The legislature cannot divest itself or its successors, of its sovereignty, or extinguish the trusts committed to its custody for the public welfare. It not only may, but must determine in what manner that sovereignty Bhall be exercised, and how those trusts shall b^ executed. 4. By the grant of exclusive privileges to the joint companies, the legis- lature in no proper sense derogated from the power of subsequent legisla- tures to provide highways. The legislature have the same control over their franchises and property as over those of any other citizen, and they Ynay be taken and condemned for public use upon making just compensa- tion. 321 322 CASES IN CHANCERY. Dei. & Ear. Canal and C. & A. R. rers interferes with the rights or property of others, equity is bound to interfere by in- junction if the exigency of the case require it. Whether those rights are invaded by a mistaken or a fraudulent exercise of power is immaterial. 13. The legislature cannot be presumed by a charter to intend or con- template any grant inconsistent with, or that would operate a.' an inva- eion of, a grant already made. OCTOBER TERM, 1863. 323 Del. & Ear. Canal and C. & A. R. & T. Co. v. Ear. & Del. Bay R. Co. et aL 14. The powers of a court of equity in regard to nuisances, are correct- ive as well as preventive. It may order them to be abated, as well as re- strain them from being constructed. Asa general rule, such relief will not be granted unless made the subject of a special prayer. 15. To justify the issuing of an injunctiop to restrain the erection of a nuisance, or to abate it after it is erected, it must appear not only that the complainant's rights are clear, but that the thing sought to be enjoined is prejudicial to those rights. The fact of the nuisance must be clearly es- tablished. 16. A structure, though illegal, will not be enjoined as a nuisance, where It occasions no injury to the rights of the complainant. 17. The closing of a road used as a highway for travel, by injunction, can only be justified by the clearest necessity. This cause was oi'Iginally argued upon a motion for a pre- liminary injunction upon bill, answers, and affidavits. On the 12th of August, 1862, the preliminary injunctioa was refused upon grounds then succinctly stated by the Chancellor.* No further proceedings were had in the cause until the 9th of June, 1863, when leave was given to the com- plainants to file their replication to the answers of the defend- ants to the original bill, and also to file a supplemental bill. On the 10th of June, 1863, the complainants filed their sup- plemental bill, by which, after setting out the substance of the original bill, the answers of the defendants, the taking of affi- davits, and the denial of the preliminary injunction, they proceed by way of sujiplement, as follows : And your orators by way of suj)plement show unto your honor, that notwithstanding the said declaration of the de- fendants in their said several answers, your orators have been informed and believe it to be true that, since the filing of the said answers and since the said hearing before your honor, tlie said defendants, the Raritan and Delaware Bay Railroad Company have completed their railroad from Port Monmouth to Atsicn aforesaid, and, in combination with the Cumden and Atlantic Railroad Company, have completed the said branct, railroad from Atsion to the Camden and Atlantic * 2 McCarter 19. 324 CASES IN CHANCERY. Del. & Ear, Canal and C. & A. E. & T. Co. v. Ear. & Del. Bay E. Co. et al Railroad near Jackson aforesaid, and by means of the said branch have connected the said railroads so as to form a con- venient and continuous line of railway from Camden to Port Monmouth ; and have made arrangements, by contract of some sort, for continuing said line by means of steamboats be- tween Port Monmouth and the city of New York, and between Camden and Philadelphia, so as to form a complete line of travel and transportation over the said line of railroad between the said cities of New York and Philadelphia; and, in viola- tion of their pledges, thus given as aforesaid to this honorable court in their said answers, have actually established lines of transportation, both of freight and passengers, between the said cities, over and by means of said line of railway and said steamboats — in continuation thereof-^— and are now actually engaged in such transportation, in open and direct violation of your orator's said chartered rights and privileges before re- ferred to. And your orators further show unto your honor, that they are informed and believe it to be true, that in carrying on the said business of transporting merchandise between the cities of New York and Philadelphia, the said defendants are using, and combining with other parties to use, certain names of designation for the said line of transportation, one of which names is the Importers' and Traders' Dispatch Company, under which name they keep regular offices for the reception and delivery of freight by said line at No. 2 Murray street, in the city of New York, and at pier No. 28 North river, in said city, and at Vine street wharf, in the city of Philadelphia ; from which offices goods are regularly shipped over and by means of the said liTie of the di-fendants between the cities of New York and Philadelphia ; and another of which names is the Union Transportation Conipany, under whi(di name they keep regular offices for receiving and delivering freight at No. 136 North wharves, in the city of Philaclelj)liia, and at pier No. 28 North river, in the city of New York, from which offices goods are regularly shipped over and by means of the said line of the defendants, between the said cities of OCTOBER TERM, 1863. 325 Del. & Ear. Canal and C. & A. R. & T. Co. v. Rar. & Del. Bay R. Co. et al. New York and Philadelphia ; and another of which names is the Philadelphia and Eastern Transportation Company, under which name offices are kept in said cities, and goods are regularly transported between New York and Philadelphia over and by means of the said line of the defendants. And your orators are informed and believe that by this means, and under the aforesaid names and designations, the defend- ants and their confederates are carrying on a large freight- ing and transportation business between the cities of New York and Philadelphia, over and by means of the said railroad line between Camden and Port !Mon mouth, and the steam- boats running in regular connection therewith at either ex- tremity of said line, amounting to more than one hundred tons of transportation per day in each direction. And your orators are also informed, and believe it to be true, that the said Raritan and Delaware Bay Railroad Company, in order to cover up and conceal the real nature of the said transporta- tion business, have made and entered into a certain pretended contract with certain persons under the name of the said the Philadelphia and Eastern Transportation Company, for the transportation of freight for said com[)any between Cam- den and Port Monmouth, on certain terms in said agreement contained ; and that the said railroad company pretends to be engaged in the said transportation business under and by virtue of the said agreement, and only between the said places last named ; but if any such pretence shall be made by the said railroad company, and if any such contract shall be shown to have been made and entered into, your orators charge that such agreement was made with full knowledge on the part of the said Raritan and Delaware Bay Railroad Company, its officers and agents, that the business to be carried on under such agreement was to be, and was intended and understood to be, a through business between the said cities of New York and Philadelphia, or mainly such; and was also made in view of, and in connection with other ar- rangements or agreements for the employment of a steamboat or boats to continue and complete the said line between Port 326 CASES IN CHANCERY. Del. & Ear. Canal and C. & A. K. & T. Co. v. Ear. & Del. Bay E. Co. et aL Monmouth and New York, and between Camden and Phila- delphia; and your orators charge that such steamboat or steamboats was or were the property of the officers and managers of the said railroad company, or some of them, or that they, or some of them, had a large and controlling interest therein. And your orators also charge that if any such agreement or agreements was or were made, it was made under and with the express understanding that, if the said business should be interrupted or prevented by means of legal proceedings instituted in the behalf of your orators, or other- wise, neither of the parties to such agreement should be liable to the other for any damages by reason thereof, and should have the privilege of abandoning the same, or some other pro- vision with that or the like effect. And your orators expressly charge that any such agreement or contract which the said corporate defendants or either of them may have entered into, in relation to the transportation of goods between Camden and Port Monmouth, was entered into by them in contem- plation of and with direct reference to the employment of steamboats at either end of said line, to complete the same as a line of transportation between the cities of New York and Philadelphia, and in contemplation, and with the intent of forming a through line of transportation between said cities for the transportation of goods from city to city, between the said cities, in direct contravention of the acknowledged rights and privileges of your orators. And your orators further show unto your honor, that if the said corporate defendants should pretend that the said trans- portation business is carried on by other persons than them- selves over their line of railroad, your orators charge that if such be the case, it is nevertheless so done by the consent and co-operation of the said corporate defendants, and in virtue of arrangements and agreements by them made with such other persons; and the said corporate defendants are re- sponsible therefor, inasmuch as by their own showing, in and by the said answer of the Raritan and Delaware Ray Railroad Company, the said Raritan and Delaware Bay Railroad is not OCTOBER TERM, 1863. 327 Del. & Ear. Canal and C. & A. E. & T. Co. v. Ear. & Del. Bay E. Co. et al. a public highway, and cannot be operated without the con- sent, and only under the direction of the said Raritan and Delaware Bay Railroad Company ; and your orators further charge that whether the said line of transportation is carried on directly by the said corporate defendants or one of them, or by other persons under contract with them, such other persons are and must be deemed as' the agents of the said cor- porate defendants or one of them, in carrying on said busi- ness of transportation ; and your orators charge that the said corporate defendants, and also the said other persons who are aiding and assisting in carrying on the said business, are liable and chargeable therefor in the same manner and to the same extent as if the said other persons were the agents of the said corporate defendants therein, whether they are acting under a pretended contract with the said corporate defendants for the use of their railroads, or not. And your orators allege that any such contractors, if any such there be, became such with full knowledge of your orators' rights and privileges, and of the pendency of this suit, and of the allegations of the respec- tive parties therein ; and are bound by all the equities which affect the defendants or any of them. And your orators further show and charge, that one or more steamboats regularly ply between New York and Port Monmouth, in connection with the defendants' trains of cars running between Port Monmouth and Camden, and also one other steamboat or boats ply as ferry boats between Camden and Philadelphia, in connection with the same train of cars, so as to form regular lines of transportation for freight and passengers in both directions, and daily carrying freight and passengers through from New York to Philadelphia and from Philadelphia to New York ; and your orators charge that the said steamboats thus ply in connection with said trains of cars by the procurement of the corporate defendants or one of them ; but whether they do or not so ply by such procure- ment, the said corporate defendants are aiding and con- tributing, by such use of their line of railroad between Port Monmouth and Camden in connection with said boats, in 328 CASES IN CHANCERY. Del. & Kar. Canal and C. & A. R. & T. Co. v. Rar. & Del. Bay R. Co. et al. establishing and carrying on a through line of transportation for freight and passengers between the said cities of New York and Philadelphia ; and are thus violating the rights and privileges of your orators, and the pledges of the said de- fendants. And your orators further show and charge that the said corporate defendants, iu connection with their said confede- rates, are also engaged in the way-business by means of said line ; whereby they largely compete with the railroad busi- ness of your orators, in violation of your orators' said rights and privileges, especially in the transportation by the said defendants of freight and passengers between Camden and New York, and between Philadelphia and Port Monmouth, and also between Philadelphia and Long Branch, on and over the said line of transportation so established by them as aforesaid. And your orators further show and charge that, in carry- ing on their said through business, the said defendants and their confederates give carriers' tickets for freight through from city to city, between the said cities of New York and Philadelphia; but in regard to through passengers, they use various devices to avoid the appearance of ticketing a pas- senger through from city to city, such as requiring such passenger to pay a separate fare on the steamboat between Port Monmouth and New York, and the like ; nevertheless, they do issue tickets for fare through between Camden and New York, and between Philadelphia and Port Monmouth ; but notwithstanding these and such like devices, it is a well understood thing with the through passengers, that an ar- rangement exists by which they can go through by the entire line from one city to the other, without interruption or deten- tion, as through passengers. And your orators cliarge that such arrangements are mere subterfuges to avoid, as far as possible, the appearance of open violation of your orators' rights and privileges before referred to, at the same time that the said defendants are, in law and in fact, guilty of such violation. OCTOBER TERM, 1863. 329 Del. & Rar. Canal and C. & A. E. & T. Co. v. Ear. & Del. Bay E. Co, et al. And your orators state and show to your honor, that the said defendants, by thus establishing and carrying on the said line of transportation on the said railroad, and the trans- portation of passengers and merchandise thereby, whether by themselves or through their agents or contractors, and whether singly as sole proprietors of the entire line, or jointly in connection with other parties owning the said steamboats at either end thereof, are guilty of a direct and gross violation of the rights and privileges guaranteed to your orators in and by the second section of the act passed the second day of March, in the year eighteen hundred and thirty-two, set forth in the said original bill and herein above referred to, and in and by the first section of the act approved on the sixteenth day of March, in the year eighteen hundred and fifty-four, set forth in the said original bill (but by mistake described as approved on the fourteenth day of March, in the year aforesaid) and hereinabove referred to j and a violation of the pledge given to this honorable court in and by their said answers to the said original bill. And your orators well hoped that the said defendants, after the early and prompt notice given to them of the intention of your orators to vindicate their said rights by the filing of the said original bill before the completion of their line of railroad by way of Jackson and Atsion, notwithstanding their denial of the rights of your orators to the full extent to which your orators claimed the same in said bill, would at least have regarded and respected the rights claimed by your orators, which the said defendants, in and by their said several answers, admitted and acknowledged had been guaranteed to your orators on the part of the state of New Jersey, and which, in and by their said answers, they declared their in- tention to observe and respect; and your orators also well hoped that the defendants, on further advisement, would have respected and observed all the said rights and privileges claimed by your orators under and by virtue of the said acta of the legislature; especially inasmuch as (which your orators charge the fact to be) the said defendants, in the month of 330 CASES IN CHANCERY. DeL & Ear. Canal and C. & A. K. & T. Co. v. Ear. & Del. Bay E. Co. et al. January or February last, appeared by t'neir counsel before a committee of the House of Representatives of the United States, and applied for an act of the Congress of the United States that should create tlie said railroad line of the defend- ants from Port Monmouth to Camden, including the ferry- between Camden and Philadelphia, and the steamboat route between Port Monmouth and New York, a post* road and public highway of the United States, on the express ground alleged by the said counsel, that the said route could not, under the laws of New Jersey, be used for through travel or transportation ; and that any attempt so to use the same would be enjoined by the courts of New Jersey ; and they desired the said act of congress to enable them to disregard the legislation of New Jersey in this behalf. But now so it is, may it please your honor, that the said corporate defendants, combining and confederating with the said individual defendants, who are aiding and abetting them in the premises, and with divers other persons at present un- known to your orators, but whose names when discovered your orators pray may be inserted herein and they made, par- ties hereto, with proper and apt words to charge them, and con- triving how to injure and aggrieve your orators in the pre- mises, not only refuse so to observe your orators' just rights and privileges guaranteed to them as aforesaid, by contract with the state of New Jersey, but, having failed to obtain an act of congress as applied for by them, or any act of congress on the subject, (which, if obtained, your orators allege would have been ineffectual for the j)urposes of the defendants) they, the said defendants, and their confederates proceeded to engage in and carry on said business of trans- portation in defiance of your orators' said rights and privi-. leges, and at the risk of being enjoined and restrained by this honorable court; but in the use and employment of various devices and contrivances before mentioned, and making various pretences, calculated and intended to cover up and conceal the real character of their said acts, and to make it appear that they were not infringing your orators' OCTOBER TERM, 1863. . 331 Del. & Ear. Canal and C. & A. E. & T. Co. v. Ear. & Del. Bay E. Co. et al. Baid rights and privileges ; but either were engaged only iu the alleged legitimate business of transporting freight and passengers from one interior point of New Jersey to another interior point thereof; or were permitting other and outside parties, over whom they had no control, namely, their said unknown confederates, to use their road at the alone risk and on the alone responsibility of said other and outside parties ; and amongst other things, the said corporate defendants sometimes pretend to have entered into contract or contracts with the said other confederates, who, they pretend, have thereby contracted for the use of their said line of railroad from Camden to Port Monmouth, and for carrying on the said transportation business independently of said defendants; but your orators charge that if any such contract or contracts is, or are made, the same do not and cannot exonerate the defendants from their duty to regard the laws of New Jersey, and the rights of your orators under the same, and under the said guarantees before referred to; nor from so managing and controlling their works as to prevent tiie violation of said rights. At other times tiie defendants pretend that they are not, nor is either of them, the proprietor or pro- prietors of the steamboat or boats by which their said line is connected with, and completed to New York City, nor of tlie ferry boat or boats by which their said line is con- nected with, and completed to Philadelphia. But your orators charge that if the defendants, or some of them, are not the owners of said boats, they have, nevertheless, either by them- selves, or by their agents or contractors and confederates, in some manner secured the use and employment of said steamboats so as to complete the said line from Philadelphia to New York. At other times the defendants })retend that they only transport passengers and freight to and from way stations, tbgt is, intermediate stations in New Jersey, in con- nection with the cities of New York and Philadelphia re- spectively ; and do not transport either passengers or freight through ihe whole route from city to city, and that they are not responsible for the manner in which the said passengers 332 CASES IN CHANCERY. Del. & Rar. Canal and C. & A. R. & T. Co. v. Rar. & Del. Bay R. Co. et al. dispose of themselves, or in which. the said freight is disposed of, beyond such intermediate points. But your orators charge that, even if such pretence were true, such way busi- ness, or much of it, competes with the business of your orators on their said railroads, contrary to the said acts of eigiiteen hundred and thirty-two, and eighteen hundred and fifty-four, before referred to; but in truth and in fact, the said defend- ants, by themselves, their agents, or contractors, do actually transport freight and passengers through the whole of said line or route from Philadelphia to New York, and vice versa from New York to Philadelphia; or, if in point of form they do not themselves transport such freight and passengers throughout the whole of said line, they do so in substance and effect; and they do in form, as well as in substance and 'effect, knowingly participate in carrying on and keeping in operation the said through line as a through line of trans- portation, and although it were true that other parties sus- tained and kept in operation portions of said line, yet if the defendants sustained and kept up only a single portion thereof (the same being a known through line), the defendants are responsible for the part they take in the same, as for aiding and contributing in the transportation of passengers and freight directly from city to city, by a railroad constructed for that purpose by the defendants, in violation of the acknow- ledged rights and {)rivileges of your orators. And your orators further charge that, if the said business of transporting passengers and freight through from city to city between the said cities of New York and Philadelphia, is conducted, managed, or carried on by the confederates of the said defendants, or of any of them, by virtue of any contract or contracts made by and between them and the said defendants, nevertheless the said defendants, at the time of the making of such contract or contracts, well knew that the said confederates obtaining such contract or contracts, at the time of the making thereof, contemplated and intended to establisii and carry on such through lines of transportation from city to city, and by entering into such contract or con- OCTOBER TERM, 1863. 333 Del. & Rar. Canal and C, & A. R & T. Co. v. Rar. & Del. Bay R. Co. et al. tracts with the said confederates, the defendants so contract- ing, knowingly and wilfully co-operated with them in the establishment of such line or lines ; and your orators charge, that the said confederates, at the same time, also well knew of the rights of your orators, and of the pending of this suit, and took no rights or interests, by virtue of such con- tract or contracts, which placed them in any better position, or on any better footing than the said defendants occupied in relation thereto ; and that the said contracts were intended merely as a cover to enable the said defendants to carry on the said transportation business ostensibly in the names of other persons, and as a means of deceiving and defrauding your orators in the premises. And your orators charge that all the said contracts and contrivances (if any such were made) were a fraud upon your orators, and intended for the purpose of enabling the defendants to evade your orators' said rights and privileges, and their own obh"gations in that behalf. The prayer of the bill is that the said defendants may dis- cover and set forth whether their said line of railroad com- munication has not been completed from Camden to Port Monmouth by way of Jackson and Atsion, as specified in the former pleadings in this cause; and whether said line has not been furnished with locomotive engines and cars for the trans- portation of passengers and freight ; and whether the same has not been put in operation, and is not now in operation in the transportation of passengers and merchandise thereon ; and whether a through line of transportation, both of passen- gers and freight, or one or the other, and which of them, from city to city, between the cities of New York and Phila- delphia, has not been established over said railroad, and whether such line is not now in operation, and actually used in transfwrting passengers and freight through from city to city as aforesaid ; and whether the said line is not conducted and carried on by the defendants, or some or one and which of them ; and if not, then by whom else, and under or in pur- suance of what arrangement, understanding, or agreemenfa Vol. r. x 334 CASES IN CHANCERY. Del. & Ear. Canal and C. & A. K. & T. Co. v. Ear. & Del. Bay E. Co. et al. with the defendants, or some or one and which of them, set- ting forth the contents in full of any such agreement, if any there may be; or, if there be no through line between the said cities establislied and carried on by any one party or as- sociation of persons, then that they may discover and set forth the different parties or persons who maintain and carry on the several parts and portions of said line, and under what understanding or agreement the same is carried on in sepa- rate parts or portions by the several parties interested or con- cerned therein ; and more particularly what interest the de- fendants, or any of them, may have in the said several por- tions of said line, or any or either of the said portions, whether as proprietors, lessors, lessees, contractors, con- tractees, or otherwise ; and if there be no professed through line of transportation of passengers or freight from city to city as aforesaid, then to discover whether there is not, never- theless, an actual line by which passengers and freight, or the one or the other, are in fact trans[)orted from city to city as aforesaid, by the transfer of such passengers or freight from one carrier to another, or in some other and wdiat manner; and that the defendants may discover what number of pas- sengers, and what amount of freight have res[)ectively been transported on the said route from city to city as aforesaid ; and about what number of passengers and what amount of freight are now being transported daily or weekly from city to city, at this present time ; and under what designations or names the said transportation is being carried on ; and what rates of fare and freight are charged for such transportation ; and that the said defendants may set forth and discover all and every agreement and agreements by them, or any of them, made with any other person ov pei'sons, for the trans- portation of passengers or freight across said line of railroad, giving the names of the persons witii whom such agreements may respectively have been made, and setting forth the said agreements in full. And that the said defendants and each and every of them, and their confederates, contractors, agents, and servants, OCTOBER TERM, 1863. 335 Del. & Rar. Canal and C. & A. R. & T. Co. v. Rar. & Del Bay R. Co. et al. may be decreed to desist and refrain from further transport- ing, or aiding or assisting in the transportation of passengers or merchandise from city to city, between the cities of New York and Philadelphia ; and that the said defendants, the Raritan and DeUiware Bay Railroad Company and the Cam- den and Atlantic Railroad Company, and their confederates, contractors, and agents, may be severally decreed to desist and refrain from fiu'ther permitting or allowing their re- spective railroads, engines, cars, or machinery, to be used for the purpose of carrying on any such transportation of pas- sengers or merchandise from ci(y to city, between the said cities, or for the purpose of aiding or assisting in the tran's- portation of passengers or merchandise between tlie said cities from city to city ; and that any agreements or arrange- ments made by them, or either of them, for that purpose, may be declared null and void ; and that the said corpora- tion defendants, their confederates, contractors, and agents, may be severally decreed to desist and refrain from forward- ing, and from aiding or assisting to forward, and from per- mitting or alUnving to be forwarded, by way of the said railroad or any part thereof, from any point or place in this state to any other point or place in this state, any passengers or merchandise which are or may be in the course of trans- portation from city to city, between the said cities of New York and Philadelphia ; and that all the said other defend- ants may be severally decreed to desist and refrain from aiding and abetting the said corporate defendants, or either of them, in any such forwarding of freight or merchandise; and that by the decree of this honorable court, the defend- ants in:) each of them, together with their confederates, contractors, and agents, may be enjoined, restrained, and prohibited from doing any act or acts for, or towards, or in aid of the transportation of passengers or merchandise be- tween New York and Philadelphia, by way of said railroad, either by using or permitting to be used the ditlerent sec- tions thereof for that purpose, in connection with each other, or by using the said railroad or any part thereof in connec- 336 Cases in chancery. Del. & Ear. Canal and C. & A. K. & T. Co. v. Ear. & Del. Bay E. Co. et al. tion with any steamboat or steamboats ; and that the said cor- poration defendants may be restrained and prohibited from permitting their respective roads, or any section or sections thereof, to be used for any such last mentioned purpose; and that said defendants, x'espectively, and their confederates, re- spectively, may be enjoined and restrained from performing, aiding, or contributing to the transportation of passengers or freight from city to city aforesaid, across the said raih'oad, and upon steamboats running in connection therewith, by any other device or contrivance whatsoever ; and tliat the said de- fendants may be severally enjoined and restrained from using the said railroad between Camden and Port Monmouth in any other manner, so as to compete in business with the rail- roads of your orators ; and that the said corporation defend- ants may pay to your orators all such damages as your orators may have sustained by their unlawful acts in the premises, and that an account may be taken to ascertain the amount of said damages ; and that your orators may have such other or further relief as to your honor shall seem meet, and shall be agreeable to equity and good conscience. Affidavits and exhibits were annexed to the bill in support of its material charges. Answers were filed by all the defend- ants. Depositions having been taken, the cause is now heard upon the pleadings and proofs. J. P. Stocldon, for the complainants. I shall assume as settled, the points assumed upon the former hearing, and which I do not consider as open. 1. That there is an existing and valid contract between the complainants and the state. 2. That the complainants have not, by consent, relinquished any of the rights secured by said contract. 3. That this court has jurisdiction, and is the proper tri- bunal to protect the complainants in the enjoyment of their franchises. OCTOBER TERM, 1863. 337 Del. & Ear. Canal and C. & A. R. & T. Co. v. Ear. & Del. Bay E. Co. et al. If the complainant are seeking their rights in a proper manner by the supplemental bill, our inquiry will be con- fined to three points. 1. The nature and extent of complainants' franchise. 2. The fact and the manner of their disturbance. 3. The nature and kind of relief to which they are enti- tled. As preliminary, I insist the complainants are properly in court by their supplemental bill. It states new facts, and asks additional relief. The great fact charged in the original bill is, that the Raritan and Delaware Bay Railroad was being constructed to be used in violation of the chartered rights of the com- plainants, as a means of transportation. The answer denied any intention to violate our rights. The defendants went further, and alleged that the road was not a public highway, and could not be used by other par- ties, without their consent, to violate our rights. By our supplemental bill and proofs, we establish the fact that freight and merchandise have been carried over the roads between the cities. We ask, therefore, not only the specific relief prayed for in the supplemental bill, but such general relief as we may be entitled to. A supplemental bill is the proper mode of bringing before the court the whole ground of complaint, and to obtain the assistance of the court, either to aid the complainants in ob- taining the relief sought by the original bill, or new and additional relief. Sfon/s Eq. PL, § 336 ; Candler v. Pettit, 1 Paige 168 ; 2 Madd. 405 ; Edgar v. Clevenger, 2 Green's Ch. R. 259, 464 ; S. C. 1 Ibid. 261 ; Jones v. Jones, 3 Atk 217. I. The nature and extent of the complainants' franchise. The view of the Chancellor upon this point will be fmnd in the tenth point of his opinion delivered on the former ar- gument: 2 McCarter 21. But I insist that the essential element of a competing Lnisiuess is a railway used for the trans[)ortation of mer- 338 CASES IN CHANCERY Bel. & Ear. Canal and C. & A. R. & T. Co. v. Rar. & Del. Bay E. Co. et al. chandise across the state. It is a railroad or roads, and not tiie line of communication. It is a railroad within and across the state of New Jersey. It is a road or roads used for the purpose of transportation between the cities, not extend- ing from city to city, but any portion of the distance between them. The only condition to be fulfilled to bring a road within the })rohibitiou is, that it should be used in the through trans- portation, no matter how it may be so employed. Boston and Lowell R. Co. v. Salem, and Loivell R. Co., 2 Gray 4 ; J^onlcJiartrain JR. Co. v. New Orleans and Carrollion R. Co., n Louisiana R. 254; Act of 4th Feb., 1830, § 2, 11, 16, 23. All that the statute could prohibit or protect was the rail- way across the state. They mean from water to water ; that is all they could mean. Tlie railway is declared a pub- lic highway. The grant is of a road across the state. The ])rohibition is of roads to compete with that. Charter of Canal Co. [Laivs o/ 1830, p. 73, 83,) § 2, 1 1 ; Jc^ of Feb. 3c?, 1831, § 2; Act of '2d March, 1832, § 2; Act of 1830, § 24; Act of 1831, § 7 ; Richmoyid R. Co. v. The Louisa R. Co., 13 How. 85, dissenting opinion of Curtis, J. ; Colledge v. Harty, 6 Welsby, Harlst. & G. 205. The object of the legislature was to protect the company from railroad competition. By the act of 1854, the intent of all previous acts and legislation of the state is declared to be fully and effectually to protect the business of the companies from railroad com[)etition between New York and Pliiladel- ])hia. Act of 1854, § 4 ; Act of 1830, § 7, 24. ir. The fact and manner of the disturbance of the fran- chise. 1. The defendants' road has been used, by their own ad- mission, to transport soldiers, horses, and munitions of war. The fact that it was done by order of the secretary of war, makes it no less a violation of our franchise. 2. The affidavits annexed to the sui)plemental bill and the admission of the answer, show thut there is in existence a line or lines of transportation, both for freight and passen- gers, between Philadelphia and New York, by means of the OCTOBER TERM, 1863. 339 Del. & Ear. Canal and C. & A. E. & T. Co. v. Ear. & Del. Bay E. Co. et al. tlefendants' road. And that the road is used for the trans- portation of passengers and freight "between the cities by railway " across the state, in whatever sense those words may be used. 3. They admit that the Philadelphia and Eastern Trans- portation Company have an office in the city, and carry on the business of transportation between the cities, and that they are responsible for the acts of which we complain. 4. They admit that they are directly disturbing our fran- chise by transporting from Camden and from Philadelphia to Port Monmouth, and from Camden to New York ; and this line carries the passengers and freight over the roads between the cities. It matters not by whose order the wrongful act was done. It is not alleged that the government have taken military possession of the road ; if it were so, it would be no excuse for a third party, nor relieve them from responsibility for the violation of our rights. The government has no power, by making it a post or military road, to aflPect our franchise. Shreicshury and Birm. R. Co. w The London and N. W. B. Co. 17 Adol & Ellis {N. S.), 669, 670. The pleadings and evidence clearly show a direct viola- tion of our franchise, and that the junction of the two roads was effected with that very object in view. But it is said — 1. That it is not a competing business. 2. That the business is so insignificant as not to entitle us to the interferance of the court. The maxim "de minimis non curat lex" never applies to the positive and wrongful invasion of one's property. Every in- jury to a legal right is a wrong. Seneca Road Co. v. Au- burn R. Co., 5 Hill 170, 175 ; Broom's Leg. Max. 152, 155 ; PenruddocMs case, 5 Rep. 101, b ; King v. The Rochdale Co., 14 Adol & Ellis [N. S.), 136; Washburn on Easements, 219, 229, 569 ; 2 3Iach. & Gor. 243; Webb v. The Portland Manufg Co., 3 Sumn. 189, 197. The defendants are answerable for the illeg-al use of their 340 CASES IN CHANCERY. Del. & Ear. Canal and C. & A. K. & T. Co. v, Rar. & Del. Bay E. Co. et al. road made by others, because they have themselves declared that "their road was not a public highway, and could not be used by others without their consent. JRex. v. Medley, 6 Carr. & Payne 292 ; Brice v. Dorr, 3 McLean 583 ; Slory's Ex'rs \. Holeombe, 4: McLean 310; Hogg v. Emerson, 11 Bow. 607. If they had leased both the roads, they are liable for any injury done by their lessees. Miliington v. Fox, 3 Mylne & a 338, 353. They have constituted the transportation company their agents to carry on this business, and are, therefore, liable to us. Story on Agency 452 ; Smith's 3Laster and Servant 132, 154. They cannot do indirectly, or by circuitous contrivance, what they cannot do directly. York and Maryland Line R. Co. v. IVinans, 17 How. 30. They cannot escape liability except by an act of the legis- lature. 7 Clark & Finnelly, 509 ; Huzzy v. Field, 2 Cromp. Mees. & Ros. 4-12 ; Chapman v. Hie Mad River and L. E. R. Co., 6 Ohio State R. 120; Robbins v. Hardcastle, 2 Durnf. & East 252. As to the effect of the lease. 13 Gray 128; 46 Maine 117; 44 Maine 362; 26 7^717; 27 T?. 370 ; Redjield on Railways 436. If the wrongful acts of the defendants are tolerated, the state as well as the complainants are injured. We are mere termors ; the state has the reversion. We should be answer- able to the state for permitting destruction of the property. We are trustees, bound to protect cestui que trusts. Shaio V. Norfolk R. Co., 5 Gray 170; 3 Young & Coll. 216; Red- jield on Railways 494, 411, § 179; 1 Stockt. bOl . If a railroad has been constructed and used, which has carried passengers and freight which would otherwise have sought the complainants- road, or if they have advertised a through route, and a single i)assenger or ton of merchan- dise has been carried over that route, they have violated our OCTOBEU TERM, 1863. 341 Del. & Ear. Canal and C. & A. R. & T. Co. v. Rar. & Del. Bay R, Co. et al. frauchi.-e. 4 Cormjn's Dig. '' Piscctry," B; 2 Bcas. 94, 96; lluzzey V. Field, 2 Cromp. Mees. & Ros. 442. There is no lawful purpose to which the roacl can be put. Tht'V have exceeded their powers. The road was illegally and fraudulently located. 9 Harris 126. The answers of both parties avow that they deviated from the route desig- nated by the legislature to reach the city of Philadelphia. They are mere trespassers, acting without legal authority in the construction of their road. Chamherluine v. Chester R, Co., 1 Welsby, HarM. & G. 876, 877. III. As to the relief to which the complainants are enti- tled, we ask that the nuisance be abated. It exists against law and by fraud practised on the court. The court will order it abated, or by mandatory injunction forbid it to be continued. The court, on the former hearing, refused to enjoin the con- struction of the road, on the ground that the answers of the defendants expressly denied their intention to violate the chartered rights of the complainants. The evidence shows, notwithstanding that the road has been used in such viola- tion, and that such was the intention of the defendants. This conduct has been a contempt of justice and an aifroat to the court. The court will use its power most vigorously for the vindication of the complainant's rights. Earl v. De Hart, 1 Beas. 287 ; Washburn on Easements 578. The court may abate as well as prevent nuisances, in clear cases. Drewry on Inj. 176-7, 260 ; 2 Atk. 83. At the former hearing we were clearly entitled to an in- junction to prevent the construction of the road, if it was intended to be used to our injury ; if we had that right then, we have now the right to abate it. The court is bound to see that the defendants do not j)r()fit by their own wrong. Croton Turnpike Road v. Ryder, 1 Johns. Ch. R. 611. We were, on filing the bill, entitled to j)revent the con- struction of the road as the means of protection against its use. Atkyns v. Kinnier, 4 Exchc(p 776 ; Dendy v. Hender- 342 CASES IN CHANCERY. Del. & Ear. Canal and C. & A. R. & T. Co. v. Ear. & Del. Bay E. Co. et al son, 11 Kvcheq. 192; TalUs v. Tallis, 1 Ellis & BlaoL 391 ; Whittemore v. Cutter, 1 Gall. 529 ; Hale v. Bainbridge, 5 ^cfo^. (fc Ellis, {N. S.), 233. Williamson, for the Raritau and Delaware Bay Railroad Company. No great pecuniary interest is invoU'ed in the immediate result. The contest is mainly for principle. The bill claims not only a right to the through business, but also to the intermediiite business between the cities. 1. The defendants deny the grant of such rights as are claimed by the bill. 2. They insist that such grant, if made, is unconstitutional. 3. The prohibition extends to the use only, not to the con- Btruction of the road. 4. The location of the defendant's road was, by their charter, referred to the discretion of the directors, and cannot be interfered with. 5. The comjilainants had acquiesced in the action of the defendants, and were too late in their aj)plication for relief. The court have already decided tiiat the i)rohibition ex- tends to the use only, and not to the construction of the road. As a corollary of that proposition, we insist — 1. That the construction of those roads, and the transporta- tion of passengers over them, do not necessarily constitute any violation of the complainant's rigiits. 2. That the injunction ongiit not to be granted, merely because the road may be perverted to an illegal use. 3. That full {)rotection can be given to the complainant's rights by an injunction restraining the use of the road. The great object of the original bill was to restrain the use only. The com[)lainants now ask more. They seek tiie utter destruction of the road. The ori>>;inal bill was filed in July, 1862. The defendants commenced running their road in August, 1862. The complainants stop[)ed proceedings until the 9th of June, 1863, and now in December, 18G3, OCTOBER TERM, 1863. 343 Del. & Ear. Canal and C. & A. E. & T. Co. v. Ear. & Del. Bay E. Co. et al. seventeen months after the filing of the original bill, they seek the destruction of the defendants' road. The object of the supplemental bill was to bring before the court facts which had occurred since the filing of the original bill. There is no further proof as to any fact in the origi- nal bill ; it is confined to matter in the supplemental bill. No one, on reading the bill or supplemental bill, would imagine that the claim of the comj)lainants extended to local bu.siness. In the prayer of the bill, local business is not alluded to. As to the effect of the word " between," in the charter of the complainants, it may mean either the entire distance from city to city, or any jiortion of said distance. 13 Hoio. 80, 83, 85. We must give to it the interpretation which the legisla- ture intended. Counsel, themselves, give different meaning to the word in different parts of the original and supplemental bills. The legislature have attached different meanings to it. Act of 1831, § 3; Act of 1837, § 3; Act o/ 1842. It is urged that the appropriate redress is by destroying our road. Such relief could only be asked on the assumption that their construction of the law is right. If the construction of the road is legal, it is not a nuisance. - In attempting to abate a nuisance, the court will not need- lessly do injury to any one. All that will be done will be to give the complainants the relief to which they are clearly en- titled, without needlessly prejudicing the interests of the defendants. If the directors of the defendant corporations have sworn false, why should the property of the stockholders be sacri- ficed ? As to the extent of remedy. 9 Paige 575 ; 1 Ibid. 197 ; 1 Gall. 429. But it is urged that the court should destroy the road by way of abating the nuisance, because the defendants have fraudulently located their road, not only in violation of the charter, but for the express purpose of violating the com- 3U CASES IN CHANCERY. Del. & Ear. Canal and C. & A. R. & T. Co. v. Rar. & Del. Bay R. Co. et al ])lainf\nts' chartered rights. The com])laint is that the road is not located on a direct line. The answer avers that the deviation is only a distance of four miles from a straight line between the beginning and ending points. The cases upon this point were cited upon the former argument. The defendants admit that they approached the city of Philadelphia as near as they could consistently with their charter. The charge of fraud is utterly denied. As early as the 18th of March, 18G1, they gave the complainants distinct notice of their intention. No attempt was made to interfere with the operations of the defendants until July, 1862. A party cannot lie by and permit another to expend his money on a great enterprise, and then invoke the power of the court for its destruction. Nor can the complainants complain of the mislocation of the road. If wrong is done, let the state complain. We have the answers of all, the defendants, clear and ex- plicit, that they selected the best route for the road authorized in their charter, so far as the character of the ground is con- cerned. But suppose the road to be improperly located, how much of it is to be demolished ? Will the court say where the road is to be built ; where the point of intersection of the two roads shall be? Why did not comjilainants show where the road ought to be located, or what better point of intersection could be selected? No such remedy as is now asked for, has been granted in any of the cases cited and relied upon. As to the character and extent of the complainants' rights. The complainants insist that carrying a single passenger or a ton of merchandise on any portion of these roads, is a violation of their franchise. We insist that all the complainants are entitled to, is protection from competition in the transportation of mer- chandise from city to city. Act of Feb. Ath, 1830, §21. Tiie language of this act admits of no doubt. Ad of Feb. 3(/, 1831, § 2, supplement to Canal act ; act of Feb. 4, 1831, § 6, OCTOBER TERM, 1863. 345 Del. & Ear. Canal and C. & A. K. & T. Co. v. Rar. & Del. Bay R. Co. et al. 7, supplement to Railroad charter. Thus far specific protec- tion is given. Nothing is said of competition. The act of March 2(1, 1832-, § 2, first uses the word com- pete. The phrase is, " which shall be intended or used for the transportation of passengers or merchandise between the cities of New York and Philadelphia, or to compete in busi- ness with the railroad authorized by the act to which this supplement is relative." The word " or " may be read " and," or may be omitted. The legislatui"^ never intended to protect intermediate travel or business. The act of March 16th, 1854, by its preamble, shows that the design of the act was to protect the company from com- petition in its through business from city to city. This act, on the face of it, is a concession by the companies to the state, which in return granted privileges to the company. By the terms of the act the legislature give construction to prior acts. The company accepted the acts, and thus as- sented to the legislative construction. A competing line is a rival line. The defendants' road is not so in any sense. No amount of freight or number of j)assengers worthy of notice, are carried over it. A line which requires detectives to discover its freight business, and which requires a day and a half to pass from city to city, is not a competing line. The answer states that troops were carried by order of the secretary of war. This was responsive to the bill. The road is under the control of the secretary of war. As to the unconstitutionality of the acts under which the complainants claim their exclusive franchise. Constitution of the U. S., Art. 1, § 8 ; Gibbons v. Ogden, 5 Peters' Cond. R. 562; Ibid. 566-7. See opinion of Johnson, J., as to the meaning of the word " Commerce," Ibid. 589 ; City of New York V. 3Iiln, 11 Peters 104; Opinion of Story, J., Ibid. 154, 58, 61 ; 7 Hoit\ 401, 7, 12, 32, 64; Corfield v. Coryell, 4 Washington C. C. R. 378. The charter of the complainants regulates the intercourse 346 CASES IN CHANCERY. Del. & Ear. Canal and C. & A. R. & T. Co. v. Rar. & Del. Bay R. Co. et al. between the states. It declares, in effect, that no person shall travel or transport goods by way of the Delaware Bay Rail- road. If this court restrain passengers or freight from going on that road, will it not be an exercise of the power to regu- late commerce between the states? 1 U. S. St(U. at Large G86 ; 2 Ibid, 578, 103, ch. XIII, 261, § 1, 2 ; 3 Ibid. 405 ; 4 Ibid. 188 ; Constitution of U. S., Art. IV, ^ 2; 3 Stonfs Com. 673, ch. 40, § 1798-9 ; Act of Confederation, Art. IV; Groves V. Slaughter, 15 Peters 515-16; Livingston v. Van lagin, 9 Johns. li. 526 ; Conner v. Elliott, 18 How. 591-3 ; Corfield V. Coryell, 4 Wash. C. G. R. 380 Broioning, for the Camden and Atlantic Railroad Com- pany. The privileges claimed by the complainants were conferred on the joint companies by the act of March, 1832, § 2. On the 19th of March, 1852, the Camden and Atlantic Railroad Company was incorporated with power to make a branch to Batsto*. On the 3d of March, 1854, the Raritan and Dela- ware Bay Company were incorporated with power to con- struct a railroad from Raritan to Delaware bay. The route prescribed necessarily crosses the track of the Camden and Atlantic Railroad. By the act of March, 1854 (supplement to the joint companies act), their exclusive privileges were ex- tended to 1869, with a declaration in the preamble of what they consisted. This supplement was passed after the incor- poration of the defendant companies. If the supplement en- larges the rights of the joint companies, such extension can- not interfere with the corporate rights of the defendants. In 1862, a connection was about to be formed between the Batsto branch and the Delaware Bay road at Atsion. The complainants' bill was then filed to prevent the junction of the roads. The injunction was denied. In 1863, the sup- plemental bill was filed to restrain the use of the road, on the ground that the use complained of is a violation of the com- plainants' exclusive privileges. OCTOBER TERM, 1863. 347 Del. & Ear. Canal and C. & A. R. & T. Co. v. Del. & Rar. Bay R. Co. et al. Upon the motion for the preliminary injunction the court held— 1. That the construction of these roads is no violation of the contract of the state with the complainants. 2. That the connection of the roads at Atsion would be no violation of the contract. 3. That the defendant corporations may lawfully use the connected railway in carrying passengers and merchandise between any points in New Jersey. No use which confines itself wholly to New Jersey is a competition in business with the complainants within the meaning of that contract. Through business alone is pro- hibited. This conclusion is fully sustained by authority. All grants to corj)orations, especially of exclusive privileges, are to be construed strictly, and nothing can be taken by impli- cation. Bridge Co. v. Hobohen L. and 1. Co., 2 Beas. 81, 94. Tiiat decree was sustaineed power, obedience might have been compelled by armed force. The Camden and Atlantic company have endeavored to conform to the decision of the court heretofore pronounced. So long as the defendants confine themselves to local busi- ness, and enter into no agreement for transportation from city to city, their business is lawful. They have no connec- tion with other companies who are carrying goods, and are not responsible for the conublic uses. It is said that " or" may be read "and," and it frequently is so, but why ? There must be a reason for it. The contract is valid. The legislature had power to make it, as well as to grant a ferry or a bridge. The state may take the franchise by right of eminent domain. They may pur- chase the right. The crown has immemorially been accustomed to grant ferries or markets. Where is the limit to the power of the legislature to make such grant ? It is said there is no such power granted in the constitution. The power of legislation includes it. The power of abrogation does not render the grant void. The legislature, untrammeled by constitutional limits, may enter into contracts. The constitution takes away OCTOBER TERM, 1863. 355 Del. & Rar. Canal and C. &,A. R. & T. Co. v. Rar. & Del. Bay R. Co. et al. from subsequent legislatures the power of repealing it, hut does not limit the power of making it. To enter into such contract does not take away the i)Ower of subsequent legisla- tures. The constitution does that. VatleVs Law of Nations, Booh 1, c/i. 21, § 1, 6; Sedgwick on Constitutional Lma, 625, 628 ; 9 /oAiw. R. 673-4 ; 17 Co7in. 58 ; 2 Gray 32-4 ; 7 iV. Hamp. R. 35 ; 6 Cranch 135 ; Red field on Railways 640. In the Charles River Bridge case the power of the legisla- ture was not questioned. It is difficult to limit the power of the legislature, or to say what it does not include. The objection, that the grant of exclusive franchises ties the hands of future legislatures, applies equally to every grant made by the legislature. Mr. Bradley also contended that the grant was not uncon- stitutional, and did not discriminate in favor of the citizens of this state, and against the citizens of other states, and cited Gibbons v. Ogden, 9 Wheat. 203; Wilson v. Blackbird Creek Marsh Co., 2 Peters 245 ; People v. The Saratoga R. R. Co., 15 Wend. 131-6 ; 3Hlner v. The New Jersey R. Co., Justice Grier's opinion in Newark Bridge case; State v. The Wheeling Bridge Co., 13 How. 518 ; 2 Stw'y's Com. on Con- stitution, § 1061—4*; Sedgwick on Const. Law 4 ; 19 Wend. 13, 55 ; 3 Zab. 429 ; 20 Barb. 68 ; S E. B. Smith 440, 453. Counsel reviewed the evidence at length to show, and con- tended that it established, that the transportation of passen- gers and freight between New York and Philadelphia is car- ried on over the connected roads of the defendants, contraiy to their disclaimer in that behalf made in their original answers, and that this is done by themselves, or through their aid and co-operation. The answer alleges that the transportation of soldiers was done by request of the secretary of war. The defendants eet up justification under authority of general government. They took order for leave to prove the fact. They were bound to prove it. The answer of a corporation under seal is no proof, nor is the answer responsive, 2 Daiii,cirs Ch. Pr. 983-4, note; 1 Beas. 410; 2 Johns. Ch. R. 89. 356 CASES IN CHANCERY. Del. & Ear. Canal and C. & A. E. & T. CJo. v. Ear. & Del. Bay E. Co. et al. The defendants cannot do by piecemeal, what they cannot do as an entirety. 2 Gray 39 ; 11 Louisiana R. 257-8. The line is competing. It was designed for this very pur- pose. The amount of business done is not material. Alkyns V. Kinnicr, 4 Exoheq. 780. The remedy by injunction to abate the nuisance is the true remedy. It is not aifected by the fact that the road is com- pleted. The defendants' acts are an invasion of a clear and ascertained right. They are of constant continuance. A constant succession of actions is required to redress the in- jury. If acquiesced in, their actions will ripen into a right, will injure the character of our franchise, and render it of less value. The remedy asked is analogous to an injunction to prevent injury to patents for invention and to copyrights. 2 Story's Eq., § G 25-30-36-43 ; 2 Eden on Inj. ( Waterman) 271-5 ; 4 JoJms. Ch. B. 160 ; 9 Johns. R. 585-8 ; 5 Johns. Ch. i^. 111-12; 1 Johns. Ch. i^. 615 ; 17 Conn. 65-6. The power of the court to abate the nuisance is clear. As to the remedy. 2 Eden on Inj. 388, and notes ; Drewry on Inj. 260 ; Redjield on Railways 511 ; 2 Story's Eq., § 727 ; Saxton 157, 518. As to the prayer of the bill. We ask that the junction of the roads should be prevented. We are eotitled to equitable relief conformably to that prayer. 1 DanieWs Ch. R. Pr. 435, 7wte 1 ; Story s Eq. PL, § 40-1-2 ; Mitford's PL 38-9 ; Hill V. Beach, 1 Beas. 35 ; Rennie v. Crombie, Ibid. 457 ; Bailey v. Burton, 8 Wend. 344 ; Wilkin v. Wilkin, 1 Johns. Ch. R. 116-17. The original and supplemental bills constitute a unit. They present but one case. The prayer is broad enough for the relief asked. Lingan v. Henderson, 1 Bland's Ch. R, 236. The Chancellor. The complainants, the United Dela- ware and Raritan Canal and Camden and Amboy Railroad and Transportation Companies, ask to be protected in the en- OCTOBER TERM, 18G3. 357 Del. & Rar. Canal and C. & A. R. & T. Co. v. Rar. & Del. Bay R. Co. et al. joymeut of certain franchises and exclusive privileges granted to thera by the State of New Jersey. By their original bill, they asked that an injunction should issue to prevent the formation, by the defendants, of a continuous line of convey- ance by railroad from the Delaware river to Raritan bay, by a junction of their respective roads, which might be used for tiie transportation of passengers or merchandise between the cities of New York and Philadelphia, or to compete in^busi- ness, between the said cities, with the railroads of the com- plainants, or that might in any manner be used, or intended to be used, for the purpose of defeating the true intent of the contracts made by the state with the complainants, to pro- tect, until the first day of January, 1869, the business of the complainants' railroad from competition between the cities of New York and Philadelphia. The Camden and Atlantic Railroad Company, one of the corporations which are made defendants, by virtue of their charter, granted on the 17th of March, 1852, have con- structed a railroad from the city of Camden through the counties of Camden and Atlantic, a distance of about sixty miles, to the ocean at Absecom inlet, in the county of At- lantic. The Raritan and Delaware Bay Railroad Company, the other defendant corporation, by virtue of their charter, granted on the third of March, 1854, and of the supplements thereto, were authorized to construct a railroad from some suitable point on Raritan bay, eastward of the village of Keyport, in the county of Monmouth, through the counties of Monmouth, Ocean, Burlington, Atlantic, and Cape May, to Cape Island, on the Atlantic ocean ; the general course of the route of the road, as prescribed in the charter, being nearly parallel with the line of the sea coast, and in its direct course crossing the Camden and Atlantic railroad nearly forty miles from Philadelphia. At the time of filing the complainants' bill this road was in the course of construc- tion, and it is alleged in the bill that the company are not constructing their road on the route prescribed by their 358 CASES IN CHAXCER.Y. Del. & Rar. Canal and C. & A. R. & T. Co. v. Rar. & Del. Bay R. Co. et al. cliarter, but that the road is made to diverge ten miles to the westward of the direct route to May's Landing (one of tiie points in the prescribed route), to Atsion, near tiie extreme nortiiwest corner of the county of Atlantic, for the jturpose of approaching nearer to the city of Philadelphia, and by means of a connection with the Camden and Atlantic road, formed by a branch road from Atsion to Jackson, forming a conti^iuous and convenient railroad line to Camden, and thereby interfering with the chartered rights of the com- plainants. It is not suggested that the granting of these charters, or either of them, by the legislature, or that rail- roads constructed in accordance with the route prescribed in these acts of incorporation, constitute any violation of the contract made by the state with the complainants. But the complaint is that the junction thus illegally attempted to be formed between tlie roads of the defendants, much nearer to the city of Philadelphia than was contemj)lated or authorized by their charters, will open a communication by railroad and steamboat between the cities of New York and Piiila- delphia, which will compete in business with the complain- ants' railroad, and thereby infringe their chartered rights. The Camden and Atlantic company, by their answer, al- leged that they were authorized to construct a branch road from some convenient point on their main road, to be deter- mined upon by the company, to Batsto, in the county of Burlington ; that they located their branch railroad from Jackson station, on the main line of their road, to a point near Atsion (which branch constitutes the connecting link of the two roads of the defendants) ; that the terminus of the Batsto branch at Jackson is the most convenient and proper point on their railroad from which to make a branch solely for a local road ; that it is the most practicable route for the said branch, so far as the topography of the country is concerned ; and that the branch was so located because it was supposed that such location will best promote the inter- est of the stockholders and of the people of the counties through which the road passes, and will best answer the de- OCTOBER TERM, 1863. 359 Del. & Rar. Canal and C. & A. R. & T. Co. v. Rar. & Del. Bay R. Co. et al. sign of the legislature in authorizing such branch. They admit that an additional reason for thus locating the Batsto branch through Atsion was, that thereby a nearer and more direct communication will be opened between Batsto and the city of New York, and points in the line of the Raritan and Delaware Bay Railroad. They do not admit, nor do they deny, that the controlling reason for that location of the Batsto branch, was to aid the Raritan and Delaware Bay Railroad Company in their purpose of approaching nearer to the city, and by means of a connection with the Camden and Atlantic road, forming a continuous and convenient line to Camden. The Raritan and Delaware Bay Railroad Company, and the president and other officers of the company, by tlieir answer, among other things, admit that at the time of obtain- ing from the legislature their act of incorporation, no person interested in the application for said road, had any intention of constructing a railroad to transport passengers or mer- chandise between the cities of New York and Philadelphia. They admit that the road, as constructed, diverges about ten miles from the direct route to May's Landing, but say that the location l)y way of Atsion, as at present located, is the most feasible, expedient, and proper location for the railroad contemj)lated in the act of incorporation, and that tlie direct route from Squankum to May's Landing was surveyed by di- rection of the company and found to be impracticable; and that the terminus of the Batsto branch (which forms the connecting link between the two roads) at Jackson, is the most convenient and proper point on the Camden and At- lantic road, from which to make a branch solely for a local road. They deny that any agreement has been made, or is intended to be made, for the transportation of freight or pas- sengers between the cities of New York and Philadelphia. They admit that they and the Camden and Atlantic Railroad Company have in view the construction and perfecting, by means of their respective railroads and a convenient con- nection between them, of a continuous and convenient line 360 CASES IN CHANCERY. Del. & Ear. Canal and C. & A. R. & T. Co. v. Rar. & Del. Bay R. Co. et al. of railway communication across New Jersey, from the city of Camden to Port Monmouth, but they deny that they or any of thera have in view the continuation of said line, at either end thereof, by steamboat transportation to the cities of New York and Philade]j)iiia, for the purpose of using the same for the transportation of passengers or merchandise in a manner which will violate any contract between the state and the complainants, or any provisions of the acts of the legislature referred to in the complainants' bill. They also deny that any contract or arrangement made by them is cal- culated or intended to form a continuous line of railway com- munication between the said cities, to compete in business with the business of the complainants, contrary to their vested rights. They admit that it is possible, if not prohib- ited by law, that a line of communication by railroad and steamboat between the cities of New York and Philadelphia might be opened ; but they say that their railroad is not a public highway, and cannot be so used without their concur- rence and consent, and as they have made no arrangement whatsoever so to use the same, and do not intend any unlaw- ful use of their road, such use, if unlawful, cannot be made, and if attempted, can be restrained by the courts. They also deny that they intend in any way to violate the char- tered rights of the complainants, or that they intend during their existence, to violate any of the alleged exclusive privileges of the complainants. And the defendants, all and each of them, declare that it is not and never has been their inten- tion, by the construction of their railroad, or its connections with the Camden and Atlantic railroad, or otherwise, to in- terfere with the complainants' chartered rights, by competing with the railroad of the complainants by the transportation of passengers or merchandise between the cities of New Yoy\l and Philadelphia, or otherwise. The answers having been filed, and affidavits taken touch- ing certain allegations in the answers, the case was heard upon a motion fur a preliminary injunction as prayed for iu OCTOBER TERM, 1863. 361 Del. & Rar. Canal and C. & A. R. & T. Co. v. Rar. & Del. Bay R. Co. et al. the bill to restrain the defendants from forming the proposed junction between their respective roads. The application was denied upon grounds which were briefly assigned at the time of the decision. On the tenth of June, 1863, the complainants filed their supplemental bill, charging that since the former hearing, the Raritan and Delaware Bay Railroad Company have com- pleted their road from Port Monmouth to Atsion, and iu combination with the Camden and Atlantic Railroad Com- pany have completed the branch from Atsion and Jackson, and by means thereof have connected the two roads, so as to form a convenient and continuous line of railway from Camden to Port Monmouth, and have made arrangements, by contract, for continuing the line by means of steamboats, between Port Monmouth and New York, and between Cam- den and Philadelphia, so as to form a complete line of travel and transportation over the said line of railroad between the cities of New York and Philadelj)hia, and have established lines of transportation, both of freight and passengers, be- tween the said cities by means of said line, and are actually engaged in such transportation, in open and direct violation of the chartered rights and privileges of the complainants. The defendants have answered ; evidence has been taken ; and the cause is now to be decided upon final hearing. The right of an incorporated company to be protected in the enjoyment of their franchises, and the duty of a court of equity, by the exercise of its restraining power, to afford such protection, are familiar doctrines of this court. These prin- ciples have been so often declared, and are so constantly re- cognized in practice, as to render their re-affirmance, or the citation of authorities in their support, an unnecessary for- mality. They are freely conceded as the recognized law of the court. The power of the court is exercised for the pro- tection of rights, the existence of which is clearly estab- lished, and so far only as may be essential for the protection of those rights. The first subject for consideration, therefore, 362 CASES IN CHANCERY. Del. & Ear. Canal and C. & A. R. & T. Co. v. Rar. & Del. Bay R. Co. et al. is the existence and extent of the rights foi* which protection is asked. The exclusive privileges claimed by the complainants, de- pend mainly upon the acts of March 2d, 1832, and of March 16th, 1854. By the second section of the act of 1832, it is enacted, " that it shall not be lawful at any time during the said railroad charter to construct any other railroad or rail- roads in this state, without the consent of the said companies, which shall be intended or used for the transportation of passengers or merchandise between the cities of New York and Philadelphia, or to compete in business with the railroad authorized by the act to which this supplement is relative." By the preamble of the act of 1854, it is recited, that by reason of existing contracts between the state and the com- panies, as set forth in their acts of incorporation and other acts in relation to the said companies, they are possessed of certain exclusive privileges which prevent the construction, except by their consent, of any other railroad or railroads in this state, which shall be intended or used for the transporta- tion of passengers or merchandise between the cities of New York and Philadelphia, or to compete in business with the railroads of the said companies. And by the first section of the act it is enacted, " that it shall not be lawful, before the 1st day of January, 1869, to construct any other railroad or railroads in this state, without the consent of the said joint companies, which shall be used for the transportation of pas- sengers or merchandise between the cities of New York and Philadelphia, or to compete in business between the said cities with the railroads of the said joint companies, or that may in any manner be used, or intended to be used, for the purpose of defeating the true intent of the act passed March 2d, 1832, or of this act; which intent and meaning are hereby declared to be, fully and effectually to protect, until the 1st day of January, 1869, the business of the said joint companies from railroad competition between the cities of New York and Philadelphia." It is difficult to conceive of a more express engagement on OCTOBER TERM, 1863. 363 Del. & Ear. Canal and C. & A. E. & T. Co. v. Rar. & Del. Bay R. Co. et a). the part of the state, or of a clearer recognition of the ex- clusive rights of the companies than is contained in these statutes. Whatever doubts may be entertained as to the construction of the contract, tiiere can be none as to the fact of making it. That the engagement is not in the form of a contract, ren- ders it none the less obligatory. It is the form in which the faith of the state is usually pledged, and in which contracts with corporations, touching the exercise of exclusive fran- chises under legislative authority, are entered into. The same form was adopted in the grant of an exclusive franchise to the proprietors of the bridges over the rivers Passaic and Hackensack, which was recognized as a valid contract on the part of the state, both in this'court and in the Court of Ap- peals. 2 Beas. 81, 503. The grant is founded upon a valuable consideration paid by the companies. It was made as an inducement to private enterprise and private capital, to constriict an important iiighway, required fur public travel and the convenience of commerce, and which it was incunibent upon the state in its sovereign capacity to provide, either directly by its own means, or through the agency of others. Whether the grant was wise or injudicious; whether the consideration received for it was adequate or inadequate, were questions exclusively for legislative, not judicial cognizance. These considerations cannot affect the existence, or impair the obligation of the contract. The obligations created by the act of 1S32 and by other acts affecting the complainants, were recognized by the legis- lature in the preamble of the act of 1854, as existing con- tracts, conferring upon the companies exclusive privileges, which prevented the construction of competing roads, and which privileges could be extinguished only by purchase or by consent. And by the act of 1854, the legislature not only acknowledge the existence and obligation of the act of 1832, but, with the assent of the companies, they limit its 864 CASES IN CHANCERY. Del. & Ear. Canal and C. & A. R. & T. Co. v. Ear. & Del. Bay E. Co. et al duration, re-affirm its eiigngemenls, and declare its meaning. It would seem that every sanction which the legislature could give to its contract with the companies has been given, and that every guarantee which could be required for the quiet enjoyment of the franchises granted has been furnished. By no act of legislation, has the existence or validity of the contract been called in question. Grave questions have arisen, and different opinions have prevailed, as to the con- struction and effect of the contract, but so far as is known, its obligation has been by the legislature uniformly acknowl- edged and respected. Under such circumstances, it would certainly be a remarkable spectacle if courts of justice, whose peculiar duty it is to maintain the authority of laws and en- force the obligation of contracts, should be found denying the existence and the obligation of a contract which the con- tracting parties admit, and the binding force of which they acknowledge. But it is objected that the act of 1832 is null and void, inasmuch as it derogates from the power of subsequent leg- islatures, upon the familiar principle that acts of parliament, derogatory from the power of subsequent parliaments, bind not. 1 Black. Com. 90. The power of the legislature to make a contract is not denied. It is an inherent attribute of sovereignty. The constitution does not deprive the legislature of the power of contracting, but only of violating its contract. The prohibi- tion is, that *' no state shnll pass any law impairing the obligation of contracts." Independent of this constitutional l)rovision, any subsequent legislature would have as full power to annul the contract, or to pass a law inconsistent with it, as the legislature had to make it. It is the constitution then, and not the contract, that derogates from the power of subsequent legislatures. The inability of the legislature to divest itself or its succes- sors of its sovereignty, or to extinguish the trusts committed to its custody for the public welfare, is not questioned. But the legislature not only may, but must determine in what OCTOBER TERM, 1ower of the legis- lature, as well as of parliament, to alienate the public do- main, to convert arms of the sea, where the tide ebbs and flows, into arable land, to the utter destruction of the common Vol. I. z 3G6 CASES IN CHANCERY. Del. & Ear. Canal and C. & A. R. & T. Co. v. Ear. & Del. ^Bay R. C^o. et al. rights of navigation and fi.sliing, is well settled, and has been repeatedly exercised. Gough v. Bell, 2 Zab. 4-57 ; 3 Ibid. 624 ; Loive v. Govett, 3 Barn. & Ad. 863 ; The King v. Mon- tague, 4 Barn. & Cr. 598. So the legislature may grant the franchise of taking tolls, which are a branch of the prerogative, upon ferries, bridges, or highways. If once granted, the same franchise cannot be granted again. The legislature cannot grant to another the right of taking tolls upon the defendants' road without mak- ing compensation. To some extent, the grant of any fran- chise must in this sense be derogatory of the power of a sub- sequent legislature. But it is not contended that the legisla- ture has no power of granting the franchise of taking tolls, or of graii^ing any other property which the state may own. This was not contended in the case of TJie Charles River Bridge v. Warren Bridge, 11 Peters 420; nor did the court so decide. What the majority of the court in that case did decide was, that where there was a grant of the franchise of a ferry without exclusive words, the legislature might lawfully establish another ferry to the detriment of the farmer. That the grant of the franchise being a public grant, must be con- strued strictly, and that nothing would pass by implication. Where no exclusive privilege was expressly granted, none would be presumed to exist. The extent of the principle as applicable to this case, fairly stated, is simply this : that the legislature cannot di- vest itself of the power or the duty of ])rovidi ng necessary highways for public use. And the answer to the objection is, that they have not done so. The legislature have the same control over the franchises and other proi)erty of these com- plainants, that they have over the property of any other citi- zen. It is subject to the right of eminent domain. By virtue of that right, if the public necessities so require, the exclusive franchises, as well as the other property of these complainants, may be taken and condemned for public use upon making just compensation. West River Bridge Co. v. JDix, 6 How. 529 ; Richmond R. R. Co. v. Louisa R. R. Co., OCTOBER TERM, 1863. 3G7 Del. & Kar. Canal and C. & A. E. & T. Co. v. Ear. & Del. Bay E.Co. eL al. 13 Hoic. 83; Enfield Toll Bridge Co. v. Hartford & New Haven R. E. Co., 17 Conn. 40 ; Boston & Lowell B. R. Co. V. Salem & Lowell R. R. Co., 2 Gray 1. The legislature, therefore, have in no proper sense, by the grant of exclusive privileges to the complainants, derogated from the power of subsequent legislatures to furnish high- ways. The only question is, whether just compensation shall be made to the couiplaiuants for their property, or whether it may be taken and apjiropriated, in disregard of the honor of the state and of the rights of the complainants. The clause in the act which renders the consent of the com- panies necessary to legalize the construction of any competing road, cannot aifect the validity of the law as an act of legis- lation. If the clause were erased, the legal effect and con- struction of the contract would remain unchanged. An en- gagement by a contracting ])arty, that he will not do any act to the prejudice of the other contracting party without his consent, is in effect identical with an absolute and unqualified engagement not to do the act. The party whose interest? are affected may consent to the act, and thus waive his righta under the contract. It in no sense confers on these corpo- i-ations legislative functions, or makes legislation subservient to their views. Their assent is no part of legislation. It does not create the law, but merely avoids the constitutional objection to its validity. It stands upon the same footing with all modifications of private charters. They are valid only when accepted by the corporation whose rights are af- fected. The existence and validity of the grant of exclusive privi- leges by the state to the complainants, which they ask to be protected, are satisfactorily established. But an important question is raised touching the true construction of the con- tract, and the extent of the exclusive privileges thereby conferred. The complainants claim that by virtue of their contract they are entitled to protection from all competition, not only upon the entire route between the cities of New York and Philadelphia, but from all competition upon any 368 CASES IN CHANCERY. Del. & Ear. Canal and C. & A. R. & T. Co. v. Ear. & Del. Bay E. Co. et al. and every part of the route ; the protection extending as well to the way business as the through business between the said cities. The prohibitory clause declares that "it shall not be lawful at any time during the said railroad charter to construct any other railroad or railroads in this state, with out the consent of the said companies, which shall be in- tended or used for the transportation of passengers or mer- chandise between the cities of New York and Philadelphia, or to compete in business with the railroad authorized by the act to which this supplement is relative." The ambiguity of the enactment is occasioned by the various senses in which the word " between " is appropriately used. It may mean in the intermediate space, without regard to distance, or it may mean extending or passing from city to city. The pro- hibition, therefore, may be limited to the througii business alone, or it may extend to transportation over any and every portion of the route. But if the design of the enactment had been to exclude all competition, that object would have been effectually attained by prohibiting the construction of any road or roads intended or used to compete with the busi- ness of the company. The clause prohibiting the construc- tion of a road for the transportation of passengers and mer- chandise between the two cities would have been nugatory. But the primary design of the prohibition is indicated by declaring: first, that no road shall be constructed for the transportation of passengers or merchandise between the two cities ; and then, in order to guard against any evasion of the prohibition, not to enlarge it, the second clause of the prohibition is added. That this was the real design of the enactment will appear by reference to previous legislation on the subject. The de- sign of the incorporation of the railroad company is stated in their charter to be, ''to perfect an expeditious and com- plete line of communication from Philadelphia to New York;" and it is made their duty to provide suitable vessels at either extremity of their road for the transportation of passengers and produce " from city to city." The protection afforded to OCTOBER TERM, 1863. 369 Del. & Ear. Canal and C. «& A. R. & T. Co. v. Ear. & Del. Bay E. Co. et al. the company vvas, that if the state should authorize any other railroad for the transportation of passengers across this state from New York to Philadel[)hia, which should be constructed and used, and which should commence and terminate within three miles of the commencement and termination of the roads authorized by the act, the transit duty should cease; and that if any other railroad should be constructed for the transportation of passengers between New York and Phila- del[)hia, it should be liable to a tax not less than the amount payable to the state by this company. The entire prohibition applies to roads constructed and used for the transportation of passengers across the slate, from city to city. The whole protection afforded is to the through passenger business. It is clear that no reference is had to way business, and that no limitation was designed to be placed upon the chartering or construction of local roads. By the act of 1831, it is enacted that when any railroad or railroads, for the transportation of passengers and pro- perty between the cities of New York and Philadelphia, across this state, shall be constructed and used for that pur- pose, by virtue of any law of this state or of the United States authorizing or recognizing said road, the dividends upon the stock transferred by the company pursuant to the act, should be no longer payable, and the stock should be re- transferred to the company. All the protection which the company sought, all that the legislature granted, was to the business from city to city. This was the prize for which these then rival companies were struggling. It was the only object deemed worthy of competition, or worth protecting. But for this the charter would not have been asked, nor the road constructed. It was for this valuable franchise that the consideration was paid by the corporation to the state, and for this that the protection was given. All these provisions have reference exclusively to the through business from city to city. Yet, on examination, it will be found that they were not effectual for the end designed. In terms they limited the prohibition either to a single road, 370 CASES IN CHANCERY. Del. & Ear. Canal and C. & A. E. & T. Co. v. Ear. & Del. Bay E. Co. et al. or to a road to be constructed within a limited time, or within certain definite limits, or to a road for the transportation of passengers only. They afford protection to a particular line of road. This clearly did not fully attain the object of se- curing full protection against competition between the cities. The act, therefore, of 1832, which was passed after the union of the railroad and canal companies, applies the prohibition to the construction of any other railroad or railroads any- where in this state, at any time during the continuance of the railroad charter, which should be intended or used ibr the transportation of passengers or merchandise between the cities of New York and Philadelphia, or to compete in busi- ness with the railroad of the complainants. The provisions of the acts of 1830, 1831, and 1832, are all in pari materia, all form parts of one entire contract, and all have in view the same general object. It cannot be said upon any sound rule of interpretation, that the legislature, by the use of a certain term, confessedly of equivocal import, appropriate to express the intent of the parties as expressed in former acts, and necessary to avoid circumlocution, have essentially en- larged the scope of the enactment and limited the power of legislation. But how did the parties to the contract understand it? By the act of 1854, the true intent and meaning of the act of 1833 are declared to be, "fully and effectually to pro- tect, until the first of January, 1869, the business of the said joint companies from railway competition between the cities of Neio Yo7-k and Philadelphia." The plain and natural import of this language, as well as of the act of 1832, is to afford protection against competi- tion in business from city to city. A broader interpretation requires a forced construction to be given to the use of the terms employed. A contract by A that he will not engage in the forwarding or transportation business between the cities of New York and Philadelphia ; or that he will not enter into competition with the business of B between those cities, would not be violated in letter or spirit by A's en- OCTOBER TERM, 1863. 371 Pel. & Rar. Canal and C. & A. R. & T. Co. v. R.ir. & Del. Bay R. Co. et al. paging in the transportation of goods hetwoen Trenton and Princeton, between Camden and Haddonfield, or between Atsion and Long Branch ; unless, indeed, the local business should form one link in a chain of communication reaching from city to city, and should thus be used in vi(>lation of the spirit of the contract. The language of the act of 1854 is not the language of the legislature alone, but of the companies also. Like the other acts affecting their corporate rights and privileges, it was formally accepted by the companies. Their assent was given to all its provisions. It expresses their con- struction of the contract. It is no violent presumption that it was approved, if not framed, by their own counsel. The act was passed more than twenty years after the act of 1832, to which it gives construction, had been in operation. The ambiguity of its phraseology could not have escaped the atten- tion of the companies or their counsel. In 1851, the ambi- guity created by the use of the word " between" had been animadverted upon, and its effect, as used in the charter of a railroad company, in a clause similar to that now under dis- cussion, had been treated as a vexed question by the Supreme Court of the United States. Richmond jB. R. Co. v. Louisa R. R. Co., 13 How. 71. They were familiar with the rule of interpretation, that, in a case of doubt, the construction of a grant must be taken most strongly against the corporation. Under such circumstances, it is a reasonable presumption, that if the intent and meaning of the act of 1832 had been to protect against competition, not only the business between the cities, but between all the intermediate places, and over any and every part of the route between the said cities, it would have been unequivocally expressed. That it was not so done, that the ambiguity was not removed when it might have been done with facility, is the strongest evidence that such was not the intention of the contracting parties. I am of opinion that the grant of exclusive privileges made by the legislature to the complainants, operates to protect only the through business from city to city against competi- 372 CASES IN CHANCERY. Del. & Ear. Canal and C. & A, E. & T. Co. v. Ear. & Del. Bay E. Co. et al. tion. That the companies have the franchise of taking tolls upon any and every part of the route or routes between the cities; but that they have the exclusive franchise only in re- gard to passengers and merchandise transported over the entire route. But if it be admitted that it is not clear that this is the true construction of the contract, and that its import is doubtful, the construction muststill be against the complainants. It is a well settled rule of construction that public grants are to be construed strictly ; and in all cases of grants of franchises by the public to a private corporation, the established rule of con- struction is, that any ambiguity in the terms of the contract must operate against the corporation and in favor of the public. The corporation take nothing that is not clearly given by the act. Proprietors of Stourbridge Canal v. Whceky, 2 Barn. & Ad. 793; Beaiy v. Lessee of KnoivUr, 4 Peters 168 ; Prov. Banh v. Billings, 4 Peters 514 ; United States v. Arredondo, 6 Peters 738 ; Charles River Bridge v. Warren Bridge, 11 Pebers 420; Richmond R. R. Co. v. Louisa R. R. Co., 13 How. 81 ; Proprietors of Bridges v. Lloboken Land Co., 2 Beas. 81. There is another view of this part of the case which appears to me to be decisive of the rights of these parties, so far as the way business is concerned. If the grant of exclusive privileges to the companies extend to the way business as well as to the business from city to city, it must, nevertheless, receive a reasonable interpretation. It must be restricted within such limits as may be fairly deemed to have been within the contemplation of the contracting parties, and as shall appear to be in accordance with the reason and spirit of the grant. It was a principle of the common law, that if one had a ferry by prescription, and another erected a ferry so uear it as to draw away its custom, it was a nuisance. The same principle applies to any exclusive privilege created by statute. The grant must be construed so as to give it due effect by excluding contiguous and injurious competition. The com- OCTOBER TERM, 1863. 37S Del, & Rar. Canal and C. & A. E. & T. Co. v. Rar. & Del. Bay R. Co. et al. peting route for local business must be so near the route of the complainants' road as mntcrinlly to affect or take away its custom. Ogden v. Gibbons, 4 Johns. Ch. R. 160 ; Newburgh Turnpike Co. v. Miller, 5 Ibid. 112. If, therefore, the grant could be so construed as to protect the grantees against the construction of any railroad in the immediate vicinity of their route, and against competition in local or way business upon that route, it would not give to the complainants the monopoly of all local business however remote, which, for want of railroad accommodations upon the natural and direct routes of travel and intercourse, might be driven by inconvenient and circuitous routes to seek its des- tination over the complainants' road. The grant of the exclusive franchise of having a railroad, and of carrying pas- sengers and freight between Camden and Amboy, cannot confer a monopoly of the business between Camden and Man- chester, or Toms River. The local business upon the two roads cannot be regarded as a competing business. The right of the complainants to be protected in the ex- clusive enjoyment of their franchise of taking tolls upon their roads for through business being established, are the acts of the defendants in violation of those rights? The apj)lication for a preliminary injunction to restrain the connection between the defendants' roads, was denied on the 12th of August, 1862. The junction was formed, and the roads thus united went into operation in September, 1862. The route is continued by means of steamboats between Port Monmouth and New York and between Camden and Phila- delphia, which run in connection with the road, so as to form a complete and uninterrupted line of travel and transportation over the roads, between the cities of New York and Philadel- phia. In eleven months, commencing with November, 1862, they were transported over these roads, between Camden and Port Monmouth, and mainly between the cities of New York and Philadelphia, 14,000 tons of freight and 17,600 passen- gers. A small portion of the freight consisted of munitions of war, and nearly the whole of the passengers were soldiers, car- ;74 CASES IN CHANCERY. Del. & Ear. Canal and C. & A. E. & T. Co. v. Ear. & Del. Bay E. Co. et al. ried over the road for the United States government. The transporting of merchandise from city to city, is carried on by the agency of transportation companies, who have established offices for the reception and delivery of fi'eight in each city, from which offices goods are regularly shipped over the entire route. Daily regular freight lines are thus established. The route is advertised, the attention of merchants and shippers is directed to it as a new and expeditious route, aiul their patronage solicited. The business of transporting way freight and passengers, is conducted by the railroad companies in their own names. Ordinarily, through tickets are not fur- nished, and freight is advertised to be carried between Cam- den and Port Monmouth only. But arrangements are made, and information furnished, which enable passengers to pass from city to city without interru})tion, and both passengers and through freight reach the cities from the termini of the roads by the same boats which accommodate the way travel, and which are provided by the companies for the accommoda- tion of the regular lines upon their respective roads. The through freight over the roads has been chiefly trans- ported by the Philadelphia and Eastern Transportation Com- pany, under an agreement bearing date on the 20th of De- cember, 1862, entered into between them and the Raritan and Delaware Bay Railroad Company, by which the railroad com[)any agree to transport over the roads, for the space of ten years, at stipulated rates, all the merchandise and freight of every description delivered to them by the transportation company, and that the entire business of transporting freight over the roads between Camden and Port Monmouth, should be enjoyed and transacted for the benefit of the transporta- tion company, excepting the way freight, the traffic in coal, and the business received from the Penn.sylvania Railroad Company, the control of which the railroad company reserve to themselves. The transportation company is constituted the exclusive agent of the railroad company, with power at their expense, to contract for the transportation of freight over the line from Camden to Port Monmouth ; and the trans- OCTOBER TERM, 18G3. 375 Del. & Rar. Canal and C. & A. R. & T. Co. v. Rar. & Dei. Bay R. Co. el al. portatiou company agree to exert their utmost influence to procure freight for the line, and to furnish for transportation, over saiil line of railway, exclusively, all the freight of what- soever kind or description which they may or can receive, control, or influence for transportation, into, through, across, or beyond the state of New Jersey. By an agreement entered into on the 25th day of October, I861, between the Camden and Atlantic company and the Raritan and Delaware Bay com[)any, it was, among other things, stipulated tiiat the Camden and Atlantic company should construct without delay the Batsto branch of their railroad. That the Raritan and Delaware Bay company should furnish the means, control the construction, designate the point of termination on their road, and determine the cost of the work. That the Camden and Atlantic company should transport, or allow the Raritan and Delaware Bay company to transport, in connection with their road, all loco- motives, cars, passengers, and freight that may be delivered to them by the Raritan and Delaware Bay company, over their road and branches, between the points of interesection and the termini of their road, and should procure staunch anil comn)odious ferry boats to be used at the termini of tiieir road and branches on the Delaware, and convey promptly to and from Philadelphia and the termini of tlieir road at Cam- den and elsewhere on the Delaware, all such freight, passen- gers, and cars as the Raritan and Delaware Bay company fchtmld require. That the number of trains, the times of run- ning, the rate of speed, the charges for freight, and the rates of fare, should be regulated by the Raritan and Delaware Bay com[)any. That if the Camden and Atlantic company failed tn perform any part of their agreement, the Raritan and Delaware Bay company were authorized to perform it at the cost of the defaulting parly. It was further mutually agreed between the contracting parties, that if legal proceedings were instituted, calling in question the right of either or both parties to carry out the contract in whole or part, each party will use every effort 376 CASES IN CHANCERY. Del. & Rar. Canal and C. & A. K. & T. Co. v. Rar. & Del. Bay R. Co. et al promptly and in good faith to (lefend itself and each other, will employ the best counsel, and use the utmost diligence to defend itself or themselves, against all claims, suits, or inter- ference; that all suits at law or in equity shall be carried to the court of last resort; and that all expenses of litigation shall be borne by the parties in a designated proportion. That the Camden and Atlantic company would form no con- nection with any other corj)oration or individuals, for the conveyance of passengers or merchandise by railroad to or from Raritan bay, nor make any connection with any other intersecting railroad, between the junction of the two rail- roads and the termini of the Camden and Atlantic company on the Delaware, north of the Atlantic road ; and that the Raritan and Delaware Bay company will make no connec- tions with any road or roads that either directly, or by con- nectiow, run to the Delaware river, north of Camden; and that the agreement should extend and be binding on the parties, for thirty years from the completion of the E-aritan and Delaware Bay Railroad and the branches of the Camden and Atlantic Railroad. By the supplemental agreement of the 16th of February, 1862, the -Camden and Atlantic company agreed that, if the agreement of the 25th of October, 1861, shall not be carried out in good faith, the Raritan and Delaware Bay company shall have a right to take possession of and manage the Camden and Atlantic road, so as effectually to carry out the purpose of that agreement, and they, and such persons as they might substitute, were constituted the attorneys, irrevo- cable, of the Camden and Atlantic company for that purpose ; and they empowered the attorneys, or their substitute, to con- sent to a decree for the specific performance of the agreement, giving to the Raritan and Delaware Bay company, the man- agement and opci-ations of such portion of the Camden and Atlantic road, and of the ferries in connection therewith, as might be required for that purpose. By the agreement of the 20th of December, 1862, between the Raritan and Delaware Bay company and the Philadel- OCTOBER TERM, 1863. 377 Del. & Ear. Canal and C. & A. R. & T. Co. v. Rar. & Del. Bay R. Co. et al. phia and Eastern Transportation Company, it was stipulated that these agreements between the railroad companies should be held by designated agents, for the benefit of the trans- portation company, by whose agency the through business over the line is carried on. The real character and design of these contracts cannot be mistaken. So far as the rights of the com{)lainants are con- cerned, their character cannot be altered by tlie fact, that in terras the transportation is limited to the line of the road. Taken in connection with the other evidence in the cause, they are obviously designed to promote the formation of a through route for the transportation of merchandise between the cities of New York and Philadelphia. Neither company has a right to permit its road to be used for such purpose. They cannot effect by combination, what neither can do law- fully. Nor can they effect by the agency of otliers, what they may not do for themselves. The companies control not only the railroad line across the state, but the boats at either terminus upon the Raritan bay and the Delaware. The Camden and Atlantic Company are under stipulation to fur- nish boats upon the Delaware. The boats upon the Raritan bay are owned in whole or in part by officers of tlie company, and are used in connection with the regular daily lines upon the road. The evidence shows that arrangements have been entered into, with direct reference to the formation of a con- tinuous line of transportation between the cities of New York and Phikidelphia, and that the transportation of freight and passengers from city to city, is carried on over the defendants' roads by their co-operation, with their knowledge, and under and by virtue of agreements entered into between themselves and with others. Tiie fact is clearly established, that the railroads of the defendants are used for the transportation of passengers and merchandise between the cities of New York and Philadelphia, and are competing in that business with the roads of the complainants, in direct violation of the en- gagement made by the state, and of the rights and privileges of the complainants. 373 CASES IN CHANCERY. Del. & Rar. Canal and C. & A. E. & T. Co. v. Rar. & Del. Bay R. Co. et al. The only roniaiiiing inquiry is, to what relief are the com- plainants entitled ? An injunction is the proper remedy to secure to a party the enjoyment of a statute privilege of which he is in the actual possession, and when his legal title is not put in doubt. Livingston v. Van Jngen, 9 Johns. R. 506 ; Croton Turn- pike Co. V. Ryder, 1 Johns. Ch. R. 615. And if corporations go beyond the [)owers which the legis- lature has given them, and in a mistaken exercise of those powers interfere with the rights of property of others, equity is bound to interfere by injunction, if the exigency of the case require it. Agar v. Regenfs Canal Co., Cooper^s R. 77 ; River Dun Nav. Co. v. North Midland Railway Co., 1 Rail- way Cas. 154 ; Bonaparte v. Camden and Amboy R. R. Co., Baldwin^ s R. 231 ; Soudder y.^Thc Trenton Delaicare Falls Co., Saxton 694. The complainant's rights are clear and unquestioned. They have been in the actual enjoyment of their franchise for more than thirty years. The defendants, by using, or permitting their roads to be used, for the establishment of a through route for the transportation of freight and passengers be- tween the cities of New York and Philadelphia, have ex- ceeded the powers conferred upon them, and interfered with the rights and the property of the complainants. There is nothing in the charters of the defendant corporations, or of either of them, which expressly, or by implication, confers the power of establishing such route, or the franchise of taking tolls thereon. The legislature cannot be presumed to have intended or contemplated any grant, inconsistent with the manifest design of the charters of the complainants. Whether the complainant's rights have been invaded by a mistake, or a fraudulent exercise of power, is immaterial. In either event, they are entitled to have their rights protected and the wrong suppressed. The complainants are entitled to an injunction restraining the defendants from using, or permitting to be used, their roads, or either of them, for the OCTOBER TERM, 1863. 379 Del. & Ear. Canal and C. & A. R. & T. Co. v. Rar. & Del. Bay E. Co. et al. purpose complained of, pursuant to the prayer of the supple- mental bill. The original hill in this cause was filed before the connec- tion between the defendants' roads had been formed, and sought to enjoin the completion of the work. The connection having been formed, and the roads used for an unauthorized purpose, in violation of the complainants' rights, it is now insisted that the roa;ls, as constructed and used, are an exist- ing nuisance, which siionld be ordered to be abated, and that the defendants should pay to the complainants the damages sustained by their unlawful acts in the premises. The powers of a court of equity in regard to uuisances, are corrective as well as preventive. It may order them to be abated, as well as restrain them froiu being erected. 8tate of Penn. v. Wheding Bridge Co., 13 How. 519 ; Van Bergen v. Van Bergen, 2 Johns. Ch. R. 272 ; Hammond v. Fuller, 1 Paige 197 ; PJarl v. De Hart, 1 Beas. 280 ; Washburn on Easements 578. In Earl v. De Hart, Chancellor Williamson said : " There is no reason why the court should not exercise a power to abate, as well as prevent the erection of nuisances, in clear cases." The nuisance in that case was ordered to be abated, and the decree of the Chancellor was affirmed by the unani- mous opinion of the Court of Appeals. In the case of The State of Pennsylvania v. The Wheeling Bridge Co., 13 How. 519, before the Supreme Court of the United States, the bill was filed to enjoin the erection of a nuisance. The bridge was completed after the bill was filed. The court said, the defendants having had notice of an application for an injunc- tion, before the defendants had thrown any obstructions over the river, they cannot claim that their position is strength- ened by the completion of the bridge. The bridge was or- dered to be abated as a nuisance to the rights of the com- plainant. Relief in this form is not asked for, either in the original or supplemental bill. As a general rule, such relief will not 380 CASES IN CHANCERY. Del. & Ear. Canal and C. & A. E. & T. Co. v. Ear. & Del. Bay E. Co. et al. be granted unless made the suhject of a special prayer. Stoi'i/s Eq. PL 43. But this ohjection may, perhaps, be re- garded as too formal to interfere with substantial equity. The bill seeks to restrain the defendants from making any connection between their rqads, so as to form a continuous line by railroad from the Delaware to the Raritan, which might be used for tlie purpose of defeating the true intent of the contract made by the state with the complainants; and also to restrain the Raritan and Delaware Bay comj)any from further constructing their road on the line to Atsion, or on any line deviating materially to the west of a direct route from Squankum to May's Landing. The application is based upon two distinct grounds, viz. 1st. Because the divergence of the Raritan and Delaware Bay road to Atsion from the line of the direct route to Capo May, by way of May's Landing, was an unauthorized and fraudulent deviation from the route prescribed by the charter. And 2d. Because the roads, as united, were intended to be used in violation of the complainants' rights, for the trans- portation of passengers and merchandise between the cities of New York and Philadelphia. In order to justify the issuing of an injunction to restrain the erection of a nuisance, or to abate it after it is erected, it must aj)[)ear, not only that the complainants' rights are clear, but that the thing sought to be enjoined is prejudicial to those rights. The fact of the nuisance must be clearly established. Moharok Bridge Co. v. Utioa and Scheneo. R. R. Co., 6 Paige 554. So far as the complainants are concerned, the erection complained of is no nuisance, however unlawful, unless it occasion injury to them. The ground of relief is thus stated by Mr. Justice Baldwin : " If the complainants' rights of property are about to be destroyed without authority of law, or if lawless danger impends over them by persons acting under color of law, when the law gives them no power, or when it is abused, misapplied, exceeded, or not strictly pursued, and the act impending would subject the party com- OCTOBER TERM, 18G3. 381 Del. & Ran Canal and C. & A. R. & T. Co. v. Rar. & Del. Bay R. Co. et al. mitting it to damages in a court of law for a trespass, a court of equity will eujoiu its commission. So of any act of [)ecu- liar trespass, occasioning grievous mischief or lasting injury, destructive of property, a I'igiit, or franchise." Honaparte v. Camden and Amboy R. R. Co., Baldwins R. 231. The construction of a railroad over the land of a complain- ant, without lawful authority, will be enjoined as a nuisance. It is a permanent ap})ropriation of the land of the complain- ant, and an irreparable injury to his freehold. So if a bridge be erected without lawful authority across a navigable river, to the prejudice of the rights of navigation, the structure itself is a nuisance, and will be al)ated at the instance of a party injured. But the defendants' roads are not erected ujion the lands of the complainants ; they do not obstruct their right of way ; they destroy no right or franchise of the complain- ants, which would subject the defendants to damages at law. How, then, do they constitute a nuisance, or entitle the com- plainants to a remedy by injunction ? It is not the structure, but the use of the roads in violation of the com[>lainants' fran- chise, which creates the nuisance. The road having been constructed, even if unauthorized, it cannot be abated as a nuisance, as it occasions no injury to the complainants. If there be any rotun for doubt whether the location of the defendants' road to Atsion is authorized by the charter, an order to abate it would occasion certain loss and injury to the defendants, without any corresponding benefit to the complainants. An injunction to restrain the use of the roads, as prayed for in the complainants' bill, is, under the circumstances, the only ap{)ropriate remedy. Relief in this form is sanctioned by authority and precedent. Boston and Lowell R. Co. v. Salem and Lotoe/l R. Co., 2 Gray 1 ', Pontchartrain R. Co. v. New Orleans and Carrollton R. Co., 11 Louisiana An. R. 253. The closing of a read used as a highway for travel, by in- junction, could only be justified by the clearest necessity. It will be referred to a master, to take an account of all the through passengers and freight which have been carried Vol. I. 2 a 382 CASES IN CHANCERY. over the road since tlie opening of the route; and also all damages wliieli the comj)hiinants have sustained tiiereby. In taking tiie account, the master will include all the soldiers, horses, baggage, and munitions of war that have been trans- })orted, distinguishing this part of the account from ordinary- business. No proof has been offered in supjiort of the allegation of the answer, that they were carried t)ver the roads of the de- fendants by order of the secretary of war, or by orders of the general government. Should it appear before the master that any such orders were made, he will report the evidence thereon, and the disposition of that part of the case will be reserved till the coming in of the report. Modified and Affirmed, 3 C E. Gr. 540. Cited to Carlisle v. Cooper, 6 C. E. Gr. 581 ; Black v. Drl. & Rar. Can. Co., 7 C. E. Gr. 19'J, 401-403; Penn. R. R. Co. v. Nat. R. R. Co., 8 a E. Gr. 455 ; Black v. Del. <£• Rar. Can. Co., 9 C. E. Gr. 494 ; Afri- can M. E. Church v. Conover, 12 C. E. Gr. 161. David Hopper vs. The Executors of John Maleeson and others. 1. The )>ower to sell lanrl for llie payment, of tnxes, is a naked power, not coiipled with an interest, and must be exercised in strict accordance with the provisions of the statute. Every prerequisite to the exercise of the power must precede it. 2. To establish a title under a sale for taxes, it is incumbent on the pur- chaser to show tliat all the prerequisites to the exercise of tlie power of Bale have been comjjlied with. The deed is not even prima facie evidence of that fact. 3. It is essential to the validity of a sale of land, under the " act to make taxes a lien on real estate in the county of Passaic, and to authorize the Bale of the same for the payment thereof," {Pamph. L., 1852, p. 247,) that it should appear that the tax was assessed on account of the property sold. 4. Tlie recital of the (ax warrant, " whereas it appears to the mayor and aldermen of the city of Paterson, that an assessment of four dollars and fifty cents of taxes, &c.," is not legal evidence of the fact of an assessment, nor of demand of payment. 5. The assessment itself is the only competent and legal evidence of the fact of an assessment. G. Where the tax warrant directs a sale to be made to raise a sum larger than the whole amount due, it is a clear excess of authority, and render* the warrant, so far as it aflects the land in question, null and void. OCTOBER TERM, 1863. 383 Hopper V. Ex'rs of Malleson et al. 7. Even if all (he requirements of tlie statute had been strictly complied with, so as to confer ii)n)ii the imrchaser at sucli sale a valid title against the heirs of the former owner, and all claiming under them, a prior mortgage given by their ancestor would not tliereby have been extinguished. 8. The phrase owner or owners (Nix. Di'i. 853, § 77, and Pamph.- L., 1852, p. 249, I 7,) was used to denote the owner of an eslute in poh-session at the time of the assessment, and not a prior owner, or the owner of an estate in expectancy, or of any executory or contingent interest, and the design of the act was to make the interest of such owner only, and those claiminjj under him, liable for the tax assessed. 9. The right of a mortgagee is not defeated by a tax sale, where tlie mortgage was not given by those who were owners of the land at the tim« of the assessment, or against whom the tax was assessed, but is a title para- mount to theirs. Such mortgage is a valid and subsisting encumbrance upon the land in the hands of the i)urchaser at the .sale. The case was heart! upon the bill and [iroofs. GledldU, for complainant. The Chancellor. The mortgai^e which the complain- ant seeks to foreelose, was given by Malleson and wife on the eleventh of October, 1847, upon a house and lot in the city of Paterson. On the fifteenth of January, 1848, the mort- gagor died. Upon his death, the legal title to the mortgaged premises descended to his children, some of whom were mi- nors. By his will the executors were authorized to sell the land, and in the meantime to aj)ply the net rents and profits to the support and education of his two youngest childen. In 1858 the premises were sold for a term of sixty years, for the sum of $36.41, by virtue of a tax warrant, to satisfy $20.70, the arrears of taxes which were assessed on account of the land, against the estate of Malleson, for the years 1854-5-6, together with fees, costs, and expenses. The value of the lot is about $900. The defendants claim that the purchaser acquired an absolute title to the premises, and that all other rights in, or encumbrances upon the jiroperty, are extinguished. The only ground of controversy is, whether the title ac* 384 CASES IN CHANCERY. Hopper V. Ex'rs of Malleson et al. quired under the sale for taxes is valid, and if valid, whether it is paramount to the title of the mortgagee. The power to sell land for the payment of taxes, is a naked power, not coupled with an interest, and must be exercised iu strict accordance with the provisions of the statute. Every prerequisite to the exercise of the power must pre- cede it. To establish a title under a sale for taxes, it is in- cumbent on the j)urchaser to show that all the prerequisites to the exercise of the power of sale, have been complied with. The deed is not even prima facie evidence of that fact. Stead's Ex'rs v. Course, 4 Cranch 403 ; Williams v. Peyton's Lessee, 4 Wheaton 77 ; Sharp v. Spcir, 4 Hill 76 ; Early v. Doe, 16 How. 010, and cases there cited. The act under which this sale was made, declares that the tax shall be and remain a lien on the real estate, on account of which the assessment shall be made. Pampli. Laws 1852, p. 247. There is no competent evidence that the as- sessment for the year 1854 was n:jade on account of the land which was sold for the payment of the tax. The assessment for that year contains no description whatever of the land assessed. Opposite the words "estate of John Malleson," under the column headed real estate, is the following entry : " 1 H. & 1 L." It may be conjectured that the entry was designed to indicate one house and lot, on account of which the assessment was made. But it does not appear, nor can it be even conjectured from anything apparent on the as- sessment, what house or lot was intended to be indicated. It is essential to the validity of the proceedings, that it should appear that the tax was assessed on account of the property sold. There is no evidence whatever of the fact, except a recital in the tax warrant in these words : " whereas it ap- pears to the mayor and alderman of the city of Paterson, * * * that an assessment of four dollars and fifty cents of taxes for the year 1854, was made by the assessor of the South Ward against the estate of John Milieu, on account of the following lots of land and premises;" describing the lot OCTOBER TERM, 18G3. 385 Hopper V. Ex'rs of Malleson et al. ill question. Assiitning that IMIllen is a clerical mistake for Malleson, how di^l the fact a[)j)ear to the mayor and alder- men that any such assessment was made ? Certainly not by (he assessment itself, which is the only competent and legal evidence of that fact. The recital of the warrant is not legal evidence of the fact of an assessment, nor of demand of pay- ment. There must be other and competent evidence that there was an assessment, and that it was legally made. The tax warrant recites that the sum of seven dollars and fifty cents was assessed for the year 1856, and directs a sale to be made to raise $21.00, for taxes assessed against the land for the years 1854-5-6. It a|)j)ears by the duplicate, that the tax assessed for the year 1856, was but $7.20, and that the whole amount due for taxes from the estate of Malleson, was but $20.70. This was a clear excess of authority, and rendered the warrant, so far as it affects the land in question, null and void. These, with other objections equally vital, are fatal to the validity of the sale for taxes. No valid title was acquired by the purchaser under that sale, and none could be transferred to his alienees. But if the prerequisites to the sale had been complied with, and the power had been exercised in strict conformity with the statute, so as to confer a valid title against the heirs of John Malleson and those claiming under them, I think it would not have extinguished the mortgage of the complain- ant. The tax sale was made under the provisions of "an act to make taxes a lien on real estate in the county of Passaic, and to authorize the sale of the same f )r the jjayment thereof," approved March 19th, 1852. Pampli. L. 247. By the second section, it is enacted that any assessment of taxes made in said county against any person, on account of any real estate of such person or body corporate, shall be and remain a lien on all the lands, tenements, hereditaments, or real estate, on account of which said assessment sliall be made, with lawful interest, and costs and fees in relation to 386 CASES IN CHANCERY. Hopper V. Ex'rs of Malleson et al. the assesssraent ainl collection thereof, for the space of five years from the time when the taxes became payable. By tiie sixth section of the act, it is enactoil that the land shall be sold and conveyed to such person as will agree to take the same for the shortest term, and pay the tax, interest, costs, fees, and expenses ; and that the grantee, by virtue of such sale and conveyance, shall hold and enjoy the said real estate during the term for which he shall have purchased the same, for his own use and benefit, " against the owner or owners thereof, and all and every person or persons claiming under her, him, or them, until the said term shall be fully completed and ended." The j)Ower of the legislature, by virtue of its sovereignty, to make the tax a charge upon the estate of all parties in- terested in the land, and to make the tax title paramount to all other and prior claims and encumbrances, is not questioned. But has that j)ower been exercised in the act under considera- tion ? Was it the intention of the legislature, that the tax deed should operate to destroy all prior interests in the estate, vested or contingent, executed or executory, in possession or expectancy? Is the title under the deed {)aramount to the "widow's right of dower? Or will the sale of land, to pay the tax of a tenant for life, extinguish the title of a re- mainderman or reversioner ? The legislature, I think, did not contemplate such a result. There is nothing in the lan- guage of the act to indicate such intention. It is not declared that the title of the grantee in the tox deed shall be para- mount to all other interests, nor that ho shall hold it against all claims and encumbrances whatever. Nor even that he shall hold it during the term for which he purchases, but tliat he shall hold it against the owner or owners thereof, and all persons claiming under him or them, until said term shall be ended. Our tax laws have always contemplated that lands shall be assessed to tlie owner or owners of the land at the time of the assessment. The act of 1854, which makes taxes a lien upon land throughout the state, directs that all lands shall be assessed in the name of the owner. The second OCTOBER TERM, 1863. 387 Hopper V. Ex'rs of Malleson et al. section of the act in question declares, that any assessment of taxes against any person or persons, on account of lands " of such person or persons" that is of lands of which he or they are the owner or owners, shall be a lien upon the said lands ; and by the seventh section it is enacted, that notwith- standing any mistake in the name or names, or omission to name the real owner or owners of the land in assessing the tax, the assessment shall be valid. The phrase owner or owners, was used to denote the owner of an estate in posses- sion at the time of the assessment, and not a prior owner or the owner of an estate in expectancy, or of any executory or contingent interest, and the design of the act was to make the interest of such owner only, and those claiming under him, liable for the tax assessed. Tiiat this is the true inter- pretation of the act, is rendered highly probable by the whole history and policy of our legislation on the subject. The tax law requires the land to be assessed against the owner, and in his name; it requires a personal demand of the tax, and notice of the time of the meeting of the commissioners of aj)- peal. In case; of a default in payment, after proof of demand, it authorizes the sale of the delinquent's goods, or the arrest of his body. Where the tax is assessed upon unimproved or untenanted lands, the wood, timber, or herbage might be levied upoti by distress and sale, for the payment of the tax. But in no case, by the general tax law of the state, was land authorized to be sold for the payment of taxes. Nor was the tax a lien even, upon the interest or estate in the land of the delinquent tax payer. If there was no tenant upon the land, and no vendible property to be taken by way of redress, there was no means of enforcing the payment of the tax against a non-resident land owner. That legislation should have furnished a remedy for this evil, by subjecting the land of the delinquent tax payer to the lieu of the tax, and to be sold for its satisfaction, was to have been anticipated. But it was not to have been anticipated, that the legislature de- signed utterly to abandon its long approved policy of protect- ing the rights of the tax payer, subjecting even his personal 388 CASES IN CHANCERY. Hopper V. Ex'rs of Malleson et al. property to sale, only upon default in payment after notice and demand ; and to subject the estate of the owners and bona fide encumbrancers of estates in the lands to sale, for the default of another, without notice of the existence of the tax, or an oj)portunity of redemption. It will be observed that the law applies as well to resident as to non-resident tax payers, and makes no provision what- ever for reden)ption, cither by parties having estates in the land, or by mortgagees. If the law was designed to operate solely upon the estate of the delinquent tax payer, there would seem to be no necessity for hucli jjrovision. But the j)rivilege of redemption in favor of mortgagees, and owners of rights in land sold for the default of a delinquent tix payer, is so obviously proper, and its omission so inconsistent with ordinary ideas of justice, that it will be found to be a very general, if not universal, provision of statutes designed to affect the estate of others than the delinquent. Its omission in the present act, is entitled to some weight in determining the real intention of the legislature. If the tax for the whole value of the land were assessed U[)on the land as an entire thing, against the mortgagor, or party in possession, there would seem to be more propriety in subjecting the entire estate, including both the interest of the mortgagee and mortgagor, to the operation of the tax .sale. But under our system of taxation, the mortgagee is taxed individually for his interest in the land. The mort- gagor is assessed only for the value of the equity of redemp- tion. Thus to distinguish between the estate of the mort- gagor and mortgagee, and yet to sacrifice the interest of the mortgagee without op|)ortunity of redemption, for the default •of the mortgagor in j>aying the tax a-^sessed against his in- terest in the laud, could scarcely have been within the con- templation of the legislature. It cannot be denied that the question is not entirely free from difficulty, and that it has given rise to souie conflict of opinion. But if it be admitted that the foregoing view is Ajrroneous, still the right of the complaiiiaut under his raort- OCTOBER TERM, 1863. 389 Walling V. Walling. gage is not defeated by tlie tax sale, because the mortgage was not given by tiiose who were owners of the land at the time of the assessment, or against whom the tax was assessed. The mortgage was given in 1847. Malleson, the mortgagor, died in 1848. The legal estate in the land descended to liis lieirs. Tlie eqnitable interest was, by the will of the mort- gagor, disposed of for the benefit of certain of his minor ehihlren'. It was sold for taxes assessed in 1854—5-6 to " the estate of John Malleso!)." Admitting, as was hekl in 8tate V. Collector of Jersey City, 4 Znh. 108, that the form of the assessment was sufficient to indicate the heirs or de- visees, without naming them, it is clear that the mortgage of the complainant is not within the provision of the statute. John Malleson, the mortgagor, was not the owner at the time of the assessment. The heirs of Mallest)n were then the owners, and the mortgagee does not claim under them, but by title {paramount to theirs. It will be decreed that the complainant's mortgage was not extinguished by the tax sair, l)ut is a valid and subsisting enci]nd)rance U])on the land in the hands of the purchaser at that sale. As the claims of tlYfe children of Malleson, tiie mortgagor, and those claitning under the tax sale, are not now le of good pleading requires that the charge should be so full and speeiHc that the defendant may know the charge she is called on to answer. It should state the time when, the place where, and if known, the person with whom the offence was committed. It is not necessary as in criminal cases, to state the day, but the mouth and year should be stated. The libel charging adultery ought to set forth some certain and definite time, viz. the year and month wherein the crime of adultery is alleged to be committed, for without such spe- cification of time, the libel is not valid in law, and the court will not proceed in the cause, even though the party accused should not oppose the ]M'oceeding. Af//iffcs Parergon 50; SheJford on Mar. & D. 399. The true rule in charging adultery as well as the reason upon which it rests, is stated with clearness by Chancel- lor Walworth in Wood v. Wood, 2 Paige 113: "The only safe and prudent course is to require the charge, whether of crimination or recrimination, to be stated in the pleadings and in the issues, in such a manner that the adverse party may be prepared to meet it on the trial. If the persons with whom the adultery was committed are known, they must be named in the defendant's answer, and the adultery must be charged with reasonable certainty as to time and place. If they are unknown, the fact should be stated in the answer and in the issue, and the time, place, and circumstances under which the adultery was committed, should be set forth. Neither party has a right to make such a charge against the other on mere suspicion, relying on being able to fish up tes- timony before the trial to support the allegation. When in- formation sufficient to justify the charge is given, the party CASES IN CHANCERY. Marsh v. Marsh. will be possessed of the requisite facts to put the charge in a distinct and tangible form on the record." These ])rinci[)Ies and reasons apply as well to the bill charging 'adultery, as to the answer setting it up by way of recrimination. The same principle is recognized in Clutch v. Clutch, Saxton, 474 ; and in Burr v. Burr, 2 Edw. Ch. R. 448. The bill in this case charges that the defendant, since her marriage with the complainant, hath committed adultery at divers places in the state of New Jersey, with divers persons, whose names are unknown to the complainant. The parties were married on the 15th of September, 1835. The bill was filed on the 23d of March, 1863. The allegation is tanta- mount to a general charge that within twenty-eight years be- fore filing the bill, the defendant hath been guilty of adultery. The bill further charges that the defendant, on different days in the years 1858-59-GO-G 1-62-63, but upon what particu- lar days the defendant is ignorant, at the city ot Newark, committed adultery with one John H. G. Hawes, and that the defendant is now, and for a long time past has been, liv- ing in adultery with the said John II. G. Hawes, at the city of Newark aforesaid. If any [)art of this charge [)ossesses the requisite degree of certainty, it is the last clause, which charges that the defendant is now living in adultery at New- ark, with Plawes, and it would seem that the d(;fendant's evidence must be confined to the single point, that at or about the time of filing the bill, the defendant was guilty of the crime specified. But what is meant by a long time j)ast?and how is an issue to be framed upon the charge? Suppose the defendant denies the charge, and an issue at law is directed. Is the jury to inquire whether the defendant, within a long time past, has been guilty of adultery? It is objected that the charge of adultery is not made posi- tively, but upon inf)rmation and belief only. The form is derived from the precedents in the Court of Chancery in New York. The averment that the statement is made u])on in- formation and belief is there appropriate, because, by the OCTOBER TERM, 1863. 397 Mar>h v. Marsh. rules of that court, tiie bill is required to be verified by oath. And in bills which are to be thus verified, as well as in an- swers and petitions, the several matters stated, charge(l, averred, admitted, or denied, are required to be stated posi- tively, or uj)on information or belief only, according to the fact. 2 Barb. Ch. Pr. 680 ; 3 Hoffman's Ch. Pr. {appendix) 371 ; Rules of 1837,^9. 32, Rules' 17, 18. AVhere the bill is not verified by oath, the statements con- tained in it are not understood to be within the knowledge of the party. It is not requisite that they should be so, any more than in the case of a declaration at law. The aver- ment, therefore, that the statements are made upon informa- tion and belief, though unnecessary and inappropriate, con- stitutes no ground for demurrer. The bill prays a discovery from the defendant, whether, since her marriage, she hath not committed adultery with any person whatever, and with whom, and at what time and place, and under what circumstances. This constitutes a valid ground of demurrer. The rule is, that a defendant is not bound to accuse himself of a crime, or to furnish any evidence whatever which shall lead to any accusation of that nature. And the objection lies to a particular interrogatory, though the bill be in other respects unexceptionable. 31it- ford's Eq. PL 194 ; Stores Eg. PL, § 522, 524, 575. I have thus expressed an opinion upon the several points discussed in the briefs of counsel. But the demurrer, on examination, proves to be merely a general demurrer for want of equity, under which no objection for want of form can properly be raised. A demurrer must express the several causes of demurrer. Ston/s Eq. PL, § 443; Mitford's Eq. PL 213. This objection was not raised by counsel, nor is there any intimation, in the briefs submitted, that it has been waived. The demurrer cannot be allowed as it now stands, because ic is clear tliat the bill is not defective for want of equity. Leave may be given to amend the demurrer. Glegg v. Legh, 4 Madd. 208; Thorpe v. Macauky, 5 Madd. 218. Vol. I. 2 b 398 CASES IN CHANCERY. Keeiie et al, v, Munn et al. In such case leave would be given, if desired, to the com- plainant to amend also, which would avoid the necessity of amending the demurrer. The objections raised are, never- theless, too serious to justify the court in requiring an answer to the bill in its present shape. As the most effectual mode of attaining the ends of justice without unnecessary delay, the demurrer is overruled, with leave to amend the demurrer within twenty days from the date of the order, unless the complainant, within that time, shall amend his bill in the particulars objected to, for which purpose leave is granted. The order is made without costs to either party as against the other. Cited in 3IUls v. ^lills, 3 C. E. Gr. 445 ; 3fmer v. Miller, 5 C. E. Gr. 217 ; Reid v. Beid, 6 C. E. Gr. 333 ; Goodwin v. Goodwin, 8 C. E. Gr. 210; Miller v. Jamison, 9 C. E. Gr. 44; Black v. Black, 11 C. E. Gr. 432 ; Black v. Black, 12 C. E. Gr. 665. George A. Keene and others vs. Polly JVIuxn and others. 1. At common law personal estate is the primary fnnd for the payment of debts, and the heir-at-law may call upon the executor to exonerate the land by discharging the mortgage debt out of tiie personal estate. The devisee stands in the same position as the heir, and is entitled to the same equity. 2. But the mortgagee, or alienee, of the heir or devisee, has ro such equity. The principle is adopted in favor of the heir or devisee alone, and not in favor of his alienee. 3. Where a mortgagor has from time to time aliened certain portions of the mortgaged premises, that portion not aliened will be first sold to satisfy a decree of foreclosure and sale ; if such sale do not bring sufficient to satisfy the decree, then the parcel last aliened will be sold, and so on in the re- rerse order of the conveyances, until the decree is satisfied. Hanney, for complainants. Taylor, for defendants, Ira and James Peck. Bradley, for defendant, Aaron Peck. Weeks, for defendant, B. W. Benson. OCTOBER TERM, 1863. 399 Keene et al. v. Munn et al. The Chancellor. The bill is filed to foreclose a mort- gage given by Isaac Munn and Polly, his wife, for $500, on two tracts of land in Orantre. The morto-ag-e bears date on the eleventh of October, 1821, and was given to Aaron L. Burnet, and by him assigned to the complainants. On the thirtieth of April, 1834, the mortgagor and wife conveyed one of the tracts to William Peck, by whom it was subse- quently conveyed to Ira and James Peck, two of the defend- ants. This lot being first aliened by the mortgagor, it is admitted that the mortgage debt is to be charged primarily on the other tract known as the homestead lot. On the fourth of November, 1853, the mortgagor and wife conveyed part of the homestead tract to James H. Simpson. Simpson gave- a mortgage of the same date with the deed, to his grantor for ^500, part of the purchase money. That mortgage is now held by Polly Munn, the widow and surviving executor of Isaac Munn. Isaac Munn, the mortgagor, died on the fifteenth of Au- gust, 1856. By his will, duly executed to pass real estate, he devised to his wife, Polly Munn, the use of all his lands during her widowhood ; and to his son, John O. Munn, his homestead house and lot, together with a lot of mountain woodland, subject to the payment of sundry legacies to his other children, to be paid in one year after the death of his wife. On the eleventh of August, 1860, John O. Munn gave to Aaron Peck a mortgage on liis interest in the real estate so devised to him by his father, the mortgagor, for ^300. On the thirteenth of December, 1861, he conveyed the equity of redemption in the premises to Benjamin W. Benson. Benson, by his answer, claims that in equity the amount of the ^500 mortgage, given by Simpson to Isaac Muun, and now in the hands of his executrix, should be applied in exoneration of the land devised to John O. Munn by his father, the mort- gagor, and that to this end, that part of the homestead lot sold and conveyed by the mortgagor to Simpson, should be first sold to pay and satisfy the mortgage of the complainant. 400 CASES IN CHANCERY. Keene et al. v. Munn et al By his answer he alleges that he purchased subject to the mortgage to Aaron Peck, and to the legacies contained in the will of Isaac Munn, deceased, and subject to no other encumbrance; and that at the time of the purchase he was informed by the vendor of the existence of the complainants' mortgage, but that the mortgagor in his lifetime had appro- priated the mortgage given by Simpson to him, to the pay- ment and discharge of the complainants' mortgage ; and that the executors of the said Isaac Munn then held the Simpson mortgage for that purpose, and would so apply it. There is no evidence in support of this allegation of the defendant's answer. The only question in the case is, whether the parties claiming title under John O. Munn, the devisee of the mortgagor, are entitled to have the complainants' mortgage paid out of the personal estate of the mortgagor, in exoneration of the land devised. At common law, personal estate is tlie primary fund for the payment of debts, and the heir-at-law may call upon the executor to exonerate the land by discharging the mortgage debt out of the personal estate, upon the ground that the personal estate had the benefit of the money for which the mortgage was given. The devisee stands in the same position as the heir, and is entitled to the same equity. But the mort- gagee, or alienee, of the heir or devisee has no such equity. The principle is adopted in favor of the heir or devisee alone, and not in favor of his alienee. Bacon's Ahr., Mortgage E ; Haven v. Foster, 9 Pich. 112 ; Scott v. Becchcr, 5 Haddock 96 ; Camherland v. Codrington, 3 Johns. Ch. R. 229 ; Ham- ilton V. Worley, 2 Vesey 62 ; 1 Waslih. on Real Prop. 566. The common law rule in favor of the heir or devisee, is re- cognized and altered by a provision of the revised statutes of the state of New York, which makes the land devised sub- ject to a mortgage, the primary fund for the satisfaction of the mortgage debt. 1 Rev. Stat. 749, § 4 ; Wahh'on v. Waldron,A Bradf. R. 114; Taylor v. Wendel, /6/c?. 324; 3Iosely V. Marshall, 27 Barb. 42 ; Rapalye v. Rnpalye, Ibid. 610. OCTOBER TERM, 1863. 401 Wyckoff et al. v. Wyckoff et al. The complainants are entitled to a decree for foreclosure and sale of the mortgaged premises in the order and priority above indicated. That part of the mortgaged premises not aliened by the mortgagor in his lifetime, must be first sold. Cathaeixe S. Wyckoff and others vs. John M. Wyckoff and others. 1. The mere proof of the loss or destruction of an instrument does not, as a matter of course, let in the party to give secondary evidence of its con- tents. He who voluntarily, without mistake or accident, destroys primary evidence, thereby deprives himself of the production and use of secondary evidence. 2. If the destruction of an instrument was accidental, or if it occurred without the agency or assent of the party offering it, secondary evidence is admissible. But if it was voluntarily destroyed by the party, secondary evidence of its contents will not be admitted, until it be shown that it was done under a mistake, and until every inference of a fraudulent design is repelled. 3. Where an adequate motive for the destruction of a will is assigned by the party seelving to establish it, and clearly confirmed by the evidence the court will not, upon mere conjecture, impute an inadequate and dis- honest motive. 4. The true rule is, that the will may be established upon satisfactory proof of its destruction, and of its contents or substance. Whether the proof be by one witness, or by many, it must be clear, satisfactory, and convincing. 5. The cost of establishing the will, and of taking out letters of admin- istration, ordered to be paid out of the estate, the burden falling upon the residuary legatee, by whose act the costs were occasioned. Leupp, for complainants. J. N. Voorhees, for defendants. The Chancellor. The bill is filed by certain legatees under the will of Lany Vandoren, deceased, to establish the 402 CASES IN CHANCERY. Wyckoff et al. v. Wyckoff et al. "will, to the end that letters testamentary may be issued thereon. The factum of the will, the competency of the testatrix, and tlie destruction of the instrument after the death of the testa- trix, are clearly established. There is no suggestion that there was any revocation of the will. The only question is, whether there is sufficient proof of the contents of the instrument. They are proved by the testimony of one witness alone, and that witness interested in the result. He is the residuary legatee under the will, and not only so, but the will was vol- untarily destroyed by him. Upon this statement of facts, three distinct questions are presented for consideration. 1. Is the witness competent ? 2. Is he credible ? 3. Can the will be established upon the testimony of one "witness alone as to its contents ? The interest of the witness in the event does not disqualify him. But the more important question is, whether a party who has voluntarily destroyed a will or other instrument, will be permitted to prove its contents by secondary evidence, either by his own testimony, or by the testimony of others. In con- sidering this question, it is proper to regard the evidence as offered by the witness in his own behalf. For although the bill is filed in the name of other legatees, it is not denied that it is filed by the procurement of the residuary legatee, and that he is the principal legatee under the will. The mere proof of the loss or destruction of an instrument does not, as a matter of course, let in the party to give sec- ondary evidence of its contents. " He who voluntarily, without mistake or accident, destroys primary evidence, thereby deprives himself of the production and use of sec- ondary evidence." Broadwell v. Stiles, 3 Haht. R. 58. If the destruction was accidental, or if it occurred with- out the agency or assent of the party offering it, secondary evidence is admissible. But if the instrument was volun- OCTOBER TERM, 1863. 403 WyckofFet ^. v. Wyckoff et al. tarily destroyed by the party, secondary evidence of its con- tents will not be admitted, until it be shown that it was done under a mistake, and until every inference of a fraudulent design is repelled. Riggs v. Tayloe, 9 Wheaton 483 ; Ren- ner v. Bank of Columbia, Ibid. 581 ; Blade v. Noland, 12 Wend. 173; Cow. & Hlirs notes to 1 Phil. Ev. A52,note. 861, p. 1214. The circumstances under which the will was destroyed are clearly proved. The property of the testatrix was derived from her father, Jacob Vandoren, who died in 1811. By his will he bequeathed a share of the residue of his estate to his daughter Lenah (the testatrix). And if she died without issue, he further bequeathed such part of her share as re- mained unexpended, to his surviving children. Her share had been paid over to her by the executors. On the 1st of April, 1824, she placed in the hands of John M. Wyckoflf, as her agent and attorney, promissory notes amounting to $1250. On the 20th of January, 1853, she executed the will now sought to be established, and placed it in the hands of her attorney and agent. By the will she appointed Wyckoff the sole executor, and made him the residuary lega- tee. He retained possession of the will, and continued to act as the agent of the testatrix to the time of her death. She died in May, 1859, without issue. Immediately upon her death, this property was claimed by the executors of Jacob Vandoren, as a part of his estate, being bequeathed over to his other children in the event of his daughter's death without issue. If the witness himself read the will, he would naturally have concluded that such was its true meaning. The surrogate whom he consulted, so advised. Eminent counsel, ujion whose judgment he would naturally rely, entertained and expressed that opinion. The true con- ctruction of the will was indeed a question of doubt and ^lifticaltj, and was settled by a decree of this court upon a bill filed for that purpose. That Wyckoff was firmly con- vinced that his testatrix had no right to dispose of the property, and that it reverted to the estate of her father, is J04 CASES IN CHANCERY. Wyckoff et al. v. Wyckofl'et al. evinced by the fact that he did not offer the will of the tes- tatrix for probate, but consented to give up the properly to the executors of Jacob Vandoren. He was in fact only pre- vented from doing so, by a question that arose as to tlie amount for which he was responsible. While under this be- lief, and because, as he states, he deemed t!ie will of Lany Vandoren useless and inoperative, he destroyed it. Its de- struction is clearly proved, and tliat at the time of its destruction, Wyckoff stated that it had been decided that the testatrix had no riglit to make a will, and that it was good for nothing. It is proved past all controversy, that the will was destroyed by the witness under the honest belief that the testatrix had no right to dispose of the property, and that consequently the will was worthless. Nor is there any rational ground to infer any fraudulent purpose in the de- struction of the will. The party by whom it was destroyed is the executor of the will, aud the legatee of a large portion of the estate. He was not one of the next of kin of the testatrix, and could gain nothing by her intestacy. There is a suggestion in the testimony of one of the witnesses, that the will might have furnished some evidence of the amount of property in the hands of Wyckoff, and that this was the real motive of its destruction. The answer to this sugges- tion is, that the will of the testatrix could furnish no compe- tent evidence of the amount of her property in the hands of her agent, he not being the scrivener; much less could a will, made in 1853, furnish any competent evidence of the amount of her property in 1859. A more decisive answer is, that when an adequate motive for the destruction of the will is assigned by the party, and clearly established by the evi- dence, the court will not, upon mere conjecture, impute an inadequate and dishonest motive. Is the party a credible witness? His character for vera- city is unimj)eached. There is nothing in his testimony, calculated to impair the confidence which the court may re- })ose in the testimony of an unbiased witness. The circum- stances under which the will was destroyed, are calculated OCTOBER TERM, 1863. 405 Wyckoffet al. v. Wyckoff et al. rather to strengthea than to shake confidence in his integ- rity. He was the confidential agent and attorney in fact of the testatrix, having in his hands the bulk of her property for more than thirty years. He is constituted her sole exec- utor and residuary legatee. It is evident that the testatrix reposed entire confidence in his integrity of character. The court see no reason to suppose that her confidence was mis- placed. It is said in some of the older authorities, that if the will be lost, two witnesses, who are superior to all exception, who read the will, prove its existence after the testator's death, remember its contents, and depose to its tenor, are sufficient to establish it. 4 Burn's Eod. Law 209 ; Toller on Exeou- tors 71. But this statement does not define the limit of the rule even in the Ecclesiastical Court. In Trevelyan v. Trevclyan, 1 PhllL 149, the will was es- tablished upon the testimony of one witness, and proof of what the testator said he had done. In Davis v. Davis, 2 Addams, 223, one witness testified that the codicil, as near as she could recollect, for she read it but once, was in the following words (stating the bequest). " Tliis she knows was the substance, though she will not undertake to swear that she has given the words correctly." Sir John Nicholl said, the tenor of the codicil is proved by the probability of the disposition, by the declaration of the testator, and by a witness who actually read it. In Davis v. Sigournei/, 8 Melc. 487, the fact that the con- tents of the will were attenjpted to be established by a single witness, was not suggested as a ground of objection. The will was rejected solely on the ground, that the recollection of the witness was not sufficiently definite as to the contents of the will. In Dickey v. Malechi, 6 Missouri 177, it was expressly ruled, that the testimony of one witness is sufficient to prove the contents of the will. The true rule is, that the will may be established upon sat- 406 CASES IN CHANCERY. WyckofF et al. v. Wyckofl" et al. isfadory proof of the destruction of the instrument, and of its contents or substance. Whether tiie proof be by one wit- ness, or by many, it must be clear, satisfactory, and convinc- ing. If the scrivener who drew the will, produce and prove a copy of the will, prepared and preserved by himself, there would be no hesitation in establishing it, though proof of its contents rest upon the testimony of a single witness. It is seen that the evidence of its contents is perfectly satisfactory. But where five witnesses are examined who do not concur as to the contents of the instrument, it will be rejected, though the witnesses may profess to speak with confidence. RJiodes v. Vinson, 9 Gill 169. In this case the witness testifies with entire confidence and distinctness as to the contents of the will. He read the will two or three times immediately before its destruction, and the next day reduced its contents to writing. That draft he pro- duced, and although he does not profess to recollect the words used, he is confident as to the substance of the will. The in- strument is brief, and its provisions might readily be retained in his recollection. He was probably familiar with its con- tents. It was delivered to him on its execution, remained for years in his possession, and was not destroyed till several weeks after the death of the testatrix. The tenor of the will as proved, is sustained by the pro- bability of the disposition. The testatrix was a single woman, advanced in years, not living with her relatives, and having her entire business aflPairs in the hands of an agent. Shd gives legacies to two of her nieces, and to persons with whom she had lived, or who had befriended her, and the residue of ' the property to her friend and agent, upon whom she relied for the care of her money and the transaction of her business. As her means were limited, it was natural that she should desire to satisfy a claim upon her justice out of her property arter her death, rather than during her life. The declara- tions of the testatrix, if entitled to any weight, are in accor- dance with the provisions of the will as proved. There is OCTOBER TERM, 1863. 407 Kirkpatrick v. Winans. nothing in the evidence offered, in the j)rol)abilities of the case, or in the character of the witness, or of his evidence, that will justify a doubt as to the credibility of the witness, or the accuracy of his testimony. I have withiudd a decision in tiiis cause, not from any doubt as to the trutli of this case, or because the evidence was in itself in any degree unsatisfactory, but because I entertained serious doubt whether, upon grounds of public policy, a will should ever be established by the testimony of a single witness, by whom the original will was destroyed, and who is interested in sustaining it. On this account the question has been con- sidered as though the bill were filed by the witness himself, and he alone were interested in the I'esult. In point of fact this bill is filed by other legatees. If they alone were in- terested the case is clear in their favor. If the witness took no interest under the will, not a doul)t coidd be entertained of their right to recover. There is no ground upon which one part of the will can be established, anil the residue re- jected. The same evidence extends to all its provisions. A decree will be made establishing the paj)er marked Exhibit A, as the will of Lany Vandoren, and setting aside the letters of administration issued on the application of the next of kin, as improvidently granted. The cost of estab- lishing the will and of taking out letters of administration, must be paid out of the estate. The burden will justly fall upon the residuary legatee, by wdiose im[)roviilent act in destroying the will, the difficulty has been created and the costs occasioned. Cited in Clark v. Ilornbeck, 2 C. E. Gr. 451. Sophia. A. Kirkpatrick vs. John T. Winans. 1. Where a party negotiates with another's agent for the loan of a snra of money, and delivers to the agent a bond and mortgage duly executed to the principal, but the whole amount of money is not paid over to the mortgagor by the agent ; in such case, if the principal settle with the ad- ministrator of his agent, and accepts the securities as evidence of so much 408 CASES IN CHANCERY. Kirkpalriok v. Winans. money advanced by the agent, and allows the amount in the settlement of the account, the mortgagor is estopped, as against the principal, from deny- ing that he received the money. 2. If the money were not paid over by the agent to the mortgagor, and he designed to look to the mortgagee, he should have given notice of such intention. By failing to do so, and permitting the settlement to be made, he is estopped from making any claim against the mortgagee. 3. The principal is not liable for the unauthorized or wrongful act of his agent in withholding a part of tlie money, or in giving his own notes pay- able at a future day, in lieu of the money of the principal in his hands. The remedy is against the agent only. J. Chetwood, for conij)]ainant. 1. The whole transaction, as between the mortgagor and the mortgagee, closed with the delivery of the mortgage. Whatever money was then in the hands of Chetwood, ho held as the agent of Winans, the mortgagor. If not paid over, he must seek his reaiedy against the administrator of the agent. 2. The defendant, by his own actions, is estopped from setting up a claim against the mortgagee. The amount loaned, at the time of the transaction, was in the hands of the agent. By the execution and delivery of the bond and mortgage the mortgagor admitted the receipt of the money* The mortgagee has settled with the agent and his admin- istrator, allowing him for the full amount advanced. Chee- ver V. Smith, 15 Johns. H. 276; Waters' Appeal, 11 Casey 523. The mortgagor has paid interest on the whole amount of the morto;ao;e. '&"»" Williamson, for defendant. The Chancellor. The bill is filed to foreclose a mort- gage given by tlie defendant to the complainant, bearing date on the first of January, 1861, for $2000, payable in one year, with interest. The defendant, by his answer, admits OCTOBER TERM, 1863. 409 Kirkpatrick v. Winans. the mortgage, but alleges that he did not reeeive the whole amount of the loan for which the mortgage was given. That he made the arrangement for the loan with the agent and attorney of the complainant, who is now deceased, who, as such agent, agreed to advance !^2000 on the mortgage secu- rity. That, on the delivery of the bond and mortgage by the defendant, nothing was paid to him, but that he subsequently received payment, amounting in the whole to $1822.58, and no more. That several of these payments were made long after the date of the bond, and the defendant claims a de- duction of interest from the principal of the bond up to the time that such sums were respectively advanced to him. Evi- dence has been taken tending to prove the allegations of the answer. The only question now submitted for decision, is not upon the weight or credibility of the evidence, but whether, admitting it to be true, it is competent evidence to affect the complainant's claim upon the mortgage. The complainant holds the defendant's bond and mortgage for the full sum of $2000. At the date of the mortgage she had, in the hands of her agent, that sum of money to be loaned. It aj)pears, by the evidence, that the agent charged his principal with the sum of $2000, as invested in this bond and mortgage at its date. Since the death of the agent, the mortgagee has settled with his administrator upon the basis of that account, and, in the settlement, allowed the sum of $2000 for so much advanced by the agent u[)on the mortgage. The bond and mortgage were evidence of so much money advanced by the agent, and upon the faith of those securi- ties the administrator was entitled to a credit for that amount upon the settlement. That settlement was effected upon the faith of securities which the defendant himself gave. He is now estopped from denying that he received the money. If he has not received the amount to which he was entitled upon the execution of the mortgage, the money is not in the com- plainant's hands, but in the hands of the agent. If the money was not paid over by the agent to the mortgagor, and he de- signed to look to the mortgagee, he should have given her 410 CASES IN CHANCERY. Kirkpatrick v. Winans. notice. By failing to do so, and permitting her to settle witii the agent, allowing hitn for the full amount advanced, he is estopped from claiming the amount as against the principal. Wyait V. Marquis of Hertford, 3 East 147 j Cheever v. Smith, 15 Johns. R. 276. If the money was withheld, it was the unauthorized act of the attorney, without the knowledge, consent, or approbation of the principal, express or implied. She neither authorized, nor sanctioned it. She derived no benefit from it. The attor- ney had no authority to withhold the money upon making the loan, or to give his own notes in lieu of the money. If the attorney gave his own notes, payable at a futtire,day, without interest, in lieu of the money of his principal in bi.s hands, it was the wrongful act of the attorney, effected by the co-operation of the defendant. The principal is never liable for the unauthorized or wilful act of his agent. The only question is, whether the defendant shall look for redress to the mortgagee, who has advanced the full amount of the loan, or to the attorney in whose hands the money is. In equity there can be no claim against the mortgagee. As between the mortgagee and her attorney, and the mort- gagor, the transaction is closed without the imputation of fraud or unfairness. The defendant's bond and mortgage has been received by the mortgagee as equivalent for the money advanced, and a settlement made as between the attorney and his principal. After the death of the attorney, the mortgagor recognized the validity of the mortgage, and paid interest upon it. There were mutual dealings between the mortgagor and the attorney, who acted as the agent of the mortgagee, on his individual account. There was a running account be- tween them, which was open and unsettled at the time of the attorney's death. Difficulties have arisen in regard to that account. There is no propriety in transferring that contro- versy to the claim of the mortgagee. The defendant must account for the amount due upon the face of the mortgage. OCTOBER TERM, 1863. 411 Ex'rs of Rowe v. AVliite. Executors of Isaac Rowe vs. Sarah White. Isaac Rowe, by his last will and testament, gave as follows : "I give and devise unto Sarah White the sura of $5000, to be paid unto the said Sarah White ; and if the said Sarah White die without an heir or heirs, the said sum of 15000 is to go to Leonard Crum, the son of Henry Crura." Held — The first legatee takes a present vested interest in the fund, liable to be divested upon the contingency of her dying without issue. The limitation over, being upon a definite failure of issue, is good by way of executory bequest. 1. In the case of a specific bequest of chattels for life, and a limitation over by way of remainder, the legatee in reraainder is no longer entitled, as formerly, to call upon the tenant for life for security that the chattels shall be forthcoming after his decease. The recognized practice of the court now is, to require an inventory to be signed by the devisee for life, and to be deposited with the master for the benefit of all parties. 2. Personal property not given specifically but generally, or as a residue of personal estate, must be converted into money ; the interest only to be enjoyed by the tenant for life, and the principal reserved for the remain- derman. This rule prevails, unless there be in the will an indication of a contrary intention. 3. Where a legacy is given generally, subject to a limitation over upon a subsequent event, the divesting contingency will not prevent the legatee from receiving his legacy at the end of a year from the testator's death, and he is not bound to give security for repayment of the money in case the event should happen. 4. In the case of a legatee for life, or subject to a limitation over, in or- der to justify the requisition of security from the first legatee, there must be danger of the loss of the property in the hands of the first taker. 5. The mere fact that the legatee for life is a feme covert, cannot in itself furnish any evidence of danger of loss. 6. A bill for relief on the ground of danger of loss of a legacy for life, subject to a limitation over by way of remainder, is in the nature of a bill quia timet, and may be filed as well against the executor himself, where the fund is in his hand, as against the legatee for life, where the fund is in his hand. JB. VansijcJcel, for complainants. It is admitted that Sarah White, the first legatee, took an estate for life. The statute, Nix. Dig. 917, § 4, removes all doubt as to the construction. 412 CASES IN CHANCERY. Ex'rs of Eovve v. White. It is admitted that tiie legatee for life is forty-six years of age, that she has never had any children, and that her hus- band is still living. The recent cases show that the legatee for life is entitleiA to the fund without security, unless there is something spe- cial, which in the discretion of the executors requires it. Skrnnmg v. Style, 3 P. IF. 334 ; Leehc v. Bennet, 1 Aih. 470 ; Bill v. Kinaston, 2 Atk. 82 ; Covenhoven v. Sh'uler, 2 Paige 132 ; Howe v. Earle of Dartmouth, 7 Vesey 137 ; Grif- Jiths V. Smith, 1 Vesey 97 ; Colston v. Morris, 6 Madd. 89 ; Loveday v. Hopkins, Ambler 273; 1 Roper on Leg. 315; 9 3fod. 93 ; 2 Kent^s Com. 354, notes ; Evans v. Iglehart, 6 Gill & Johns. 171 ; De Peyster v. Clendining, 8 Paige 295. If a legacy goes into the hands of a married woman, the husband will take it. It will be lost to the legatee in re- mainder. If a sj)endthrift or insolvent were about to receive it, se- curity would be required. If the legacy remain in the hands of the executors, and there is danger of loss, security may be required. Cleveland V. Havens, 2 Beas. 101. Van Fleet, for defendant. The bill does not raise the question of danger. The only question is as to the personal liability of the executors. Mrs. Wiiite will hold the fund as an unmarried woman. Nix. Dig. 503, § 3. The intention is clear. It is a gift of money to be paid over, not of use. The executors must execute the will. Thus only, will they be relieved from liability. Leonard Crum must look to the estate of Mrs. White, not to the executors. Dewilt v. Schoonmaker, 2 Johns. R. 243. I admit that, at the instance of Crum, the legatee in re- mainder, the court might require security. 1 Story's Eq., § 601. OCTOBER TERM, 1863. 413 Ex'rs of Rowe v. White. The legatee in remainder is a party, but does not answer. He does not ask security. 2 Will lams on E.v'vs 1192; 18 Vesey 131 ; 1 Vesey 97 ; 1 Roper on Leg. [M ed.) 752 ; Hull V. Eddy, 2 Green' s'^B. 169. As to the question of costs. Kay v. Kay's Ex'rs, 3 Green's Ch. R. 502; 2 Beas. 121. Beasley, on the same side. There are three ch\sses of cases. 1. Bequests of specific chattels. In the case of a bequest of specific chattels, the old prac- tice was to require security of the legatee for life. Bracken V. Benthj, 1 Ch. R. lio"; Hart v. Hart, Ibid. 260; 1 Eq. Cases Ab. 78 ; Freeman's Ch. R. case 280, p. 206. The practice was changed before Hardwicke's time, on prin- ciple. An inventory was then required to be deposited with the master ; security no longer taken. Bill v. Klnaslon, 2 Att 82: Leeke v. Bennet, 1 Aik. 470; 2 P. W. 1258; 2 Kent's Com. 354 ; Foley v. Barnell, 1 Brd. Ch. R. 279 ; Gon- dultt V Soane, 1 Collyer's R. 285. The rule is changed to carry out the intention of the tes- tator. Here the testator did not require security. 2. General bequest of residue of personal estate for life, with remainder over. There the executors were to convert property into monej' ; invest the proceeds, and pay the interest to the legatee for life. 2 Kent's Com. 354 ; 1 Story's Eq., § 604, note 1. 3. Legacy given generally, subject to limitation over on the happening of a subsequent, event. There legatee never required to give security, except in case of danger. All cases, with one exception, agree. 2 Williams on Ex'rs 1251, 1192; 1 Roper on Leg., {2d Am. ed.) ch. 14, § 2, J). 861. The contrary doctrine held in Cal- houn V. Thomson, 2 Ilolloy 281. The principle is, that as the testator has entrusted the legatee with money, no one has authority to require security. Hull Vol. I. 2c' 414 CASES IX CHANCERY. Ex'rs of Rowe v. White. V. Eddy, 2 Green's R. 169, 176 ; Vimpell's E.vrs v. Veghte, Ibid. 207; FTomer v. Ske/ton, 2 Melc. 194 ; //(ir/.so?i v. Wads- worth, 8 Conn. 319 ; Langworthy v. Ckadivick, 13 Cbnn. 46. A case of danger must be made in pleading. The legatee for life might show that she has a large estate, and that there was, theref)re, no cause for requiring security. She has a right to res[)ond. The mere fact that the legateee for life is a married woman, does not make a case of danger. If the court say she must give security, it must declare ia all cases that the wife must give security. The will expressly directs payment to her. It was the in- tention of the testator. Wurts, in reply. The will is inartificially drawn. The phrase to be " paid to legatee," makes no difference. It is immaterial whether Crum has answered or not. Cleve- land V. Havens, 2 Beas. 101. In the absence of danger no security will be required ; if, however, there is danger, it will be required. It was a delicate matter for Crum, the executor, to ques- tion the solvency of his sister and her husbaiid. So it was for the nephew and legatee in remainder. Mr. Wurts further cited, 1 P. W. 502, 652 ; Falrchild v. Crane, 2 Beas. 105 ; CondicCs Ex'rs v. King, Ibid. 375 ; Kay V. Kay's Ev'rs, 3 Green's Ch. R. 502 ; 31 Ala. 379 ; 2 Jar- man on Wills 499 ; Stone v. Maule, 2 Sim. 490 ; 1 Story's Eq., § 597, 603 ; Horrell v. Waldron, 1 Vernon 26 ; 2 Fonb. Eq. 321 {Blk. 4, p. 1, cA. 1, § 2); 2 Story's Eq. 845, 845 a; Cooper V. Williams, Finch's Prec. in Ciian. 72, case 65. The Chancellor. Isaac Rowe, of the county of Hunter- don, in and by his last will and testament, gave as follows : ^* I give and devise unto Sarah White, the wife of JohnWhite, OCTOBER TERM, 1863. 415 Ex' IS of Rowe v. While. the sum of $5000, to be paid unto the said Sarah White ; and if tlie said Sarah VV^iiite die without an iieir or heirs, the said sum of $5000 is to go to Leonard Cruai, the son of Henry Cruni." The executors have fik^d tlieir bill a2;ainst the first legatee and her husband, and the legatee in remainder, asking that the proper construction of the bequest should be settled for their aid and direction, and that the money may, for their protection, be paid under the direction of the court. The bill alleges that the legatee, Sarah, and her husband, demand the payment of the legacy, and threaten to institute proceedings at law against the executors, unless tiie money is forthwith paid ; and that Leonard Crum, the legatee in re- mainder, forbids the payment of the money to Sarah White, unless she give ample security that the legacy shall be paid to Crum, in case the said Sarah White should die without issue. Sarah White and her husband have answered the bill, claiming the payment of the legacy without giving security. No answer has been filed by Crum. There is no dispute as to the flicts. Sarah White, the legatee, has had no issue born of her body, and is forty-five years of age. There can be no (piestiou as to the construction and effect of the bequest. Sarah White, the first legatee, takes a present vested interest in the fund, liable to be divested upon the con- tingency of her dying without issue. The limitation over being upon a definite failure of issue, is goofl by way of execu- tory bequest. Halt v. Eddy, 2 Green's E. 175, and cases there cited. The only question made by the pleadings is, whether the first legatee is entitled to receive the fund, without giving security for its repayment in the event of her dying without issue. Where there is a specific bequest of chattels for life, and a limitation over by way of remainder, the ancient rule in chancery was, that the person entitled in remainder, could 416 CASES IN CHANCERY. Ex'rs of Eowe v. White. call upon the tenant for life for security that the chattels? should be forthcoming after his decease ; the tenant for life being regarded as a trustee for the remainderman. Bracken V. Bently, 1 Ch. i?. 110; Hart v. Hart, Ibid. 260; 1 Eq. Cas. Ab. 78, "Bills E ;" Vachel v. Vachel, 1 Chan. Cas. 129 ; Ereeman's Ch. B. 206, case 280. The last of these cases was decided in 1695. In Leehe v. Bennet, 1 Athjns 470, decided in 1737, upon an application by the legatee in remainder, that the legatee for life should give security for the forthcoming of the goods, Lord Chan- cellor Hardwicke is reported to liave said, he never knew it done, and therefore would not oblige the defendant to do it, but directed an inventory to be made and signed by the de- fendant and his wife, who was the legatee for life, and to be delivered to the plaintiff. In Bill V. Kinasion, 2 Athnis 82, decided in 1740, the same Lord Chancellor is rej)orted to have said, that where goods are given to a person for life only, the old rule of the court was, that such person should give security that they should not be embezzled ; but the method now is for an inventory to be signed by the devisee for life, and to be deposited with the master for the benefit of all jiarties. Since the time of Lord Talbot, in 1734, this seems to have been the recognized practice of the court. Slanning v. Style, 3 P. W. 336 ; Richards v. Baker, 2 Atkpw 321 ; Foley v. Burnell, 1 Bi'own^ Ch. Cas. 249 ; Gondidtt v. Soane, 1 Coll- ye)''s R. 285; Covenhoven v. SImler, 2 Paige 132; De Pey- ster v. Clendining, 8 Paige 303 ; 2 Kcnfs Com. 354 ; 2 Wil- liams on Ex'rs 1258. This class of cases is limited to specific bequests of chattels to the first taker for life only. But personal property, not given specifically but generally, or as a residue of personal estate, must be converted into money ; the interest only enjoyed by the tenant for life, and the principal reserved for the remainderman. Howe v. Earl of Dartmouth, 7 Vesey 137 ; Benn v. Dixon, 10 Simons 636 ; Chambers v. Chambers, 15 Simons 183 ; Randall v. Russell, OCTOBER TERM, 1863. 417 Ex'rs of Rowe v. While. 3 Mer. 193; Covenhoven v. Shuler, 2 Paige 122; Clark y. Clark, 8 Paige 152; Cairns v. Chauberi, 9 Paige 163 ; Hull V. Edily, 2 Green's R. 176; AcJceniuni's Adinrs v. VrccULncTs Ex'r, 1 McQirfer 23 ; 2 Kent's Com. 353 ; Lewis on Perp. 100 ; 2 6Vo/-^'s £"(7. /it/'., § 845 a. Tlie rule i)revails, unless there be in the will an indication of a contrary intention. Collins v. Collins, 2 Mylae & Keene 703 ; Pickering v. Pickering, 2 Beavan 31 ; *S. (7. 4 Mylne <£• C/-. 289 ; Randall v. i?«6-se/^, 3 il/f;r. 194 ; i/eyviV/ v. £'m- o?7, 10 Pick. 512 ; 2 n7///a»is on ^IcVs 1197. But where a legacy is given generally, subject to a limita- tion over upon a subsequent event, the divesting contingency will not prevent the legatee from receiving his legacy at the end of a vear from the testator's death : and he is not bound to give security for repayment of the money in case the event should happen. Griffiths v. Smith, 1 Vesey 97 ; Fawkes v. Gray, 18 Vesey 131 ; Hull v. Eddy, 2 Green's R.117 ; Ex'rs of Condict V. King, 2 Beas. 383 ; 2 Williams on Ex'rs, 1192; Homer v. Shelton, 2 3fetc. 194; Fiske v. Cobb, 6 (?/■«_(/ ,144 ; 1 Roper on Leg., c/i. 14, § 11, 684; Hudson v. Wadsworth, 8 Conn. 349 ; Langworthy v. Chadwick, 13 Conn. 46. Either in the case of a legatee for life, or subject to a limi- tation over, in order to justify the requisition of security from the first legatee, there must be danger of the loss of the property in the hands of the first taker. Slanning v. Style, 3 P. W. 334 ; Conduitt v. Soane, 1 Collyer's R.2S5; Homer v. Shelton, 2 Mete. 194 ; Fiske v. Cobb, 6 Gray 144 ; Hudson v. Wadsioorth, 8 Conn. 249; Langu-orthy v. Chadwick, 13 Conn. 46. In Slanning v. *S'^y?(?, Lord Talbot says : " Generally speak- ing, where the testator thinks fit to repose a trust, in such case, until some breach of that trust be shown, or at least a ten- dency thereto, the court will continue to intrust the same hand, without calling for any other security than what tlie testator has required." But in that case the legatees in re- mainder were also the executors, and to the trust reposed iu 418 CASES IN CHANCERY. Ex'rs of Howe v. Wliiti. them in that capacity by the testator, the remark of the Chan- cellor must have been mainly directed. But ii[)or) a somewhat analogous principle, regarding the first legatee as a trustee for the legatee iu remainder, the courts have held that to require security, excejit in case of danger, woultl not be iu accordance with the will of the tes- tator. In the absence of any suggestion of danger or loss, the legatee in this case is entitled to receive her legacy without giving security, either to the executors or to the legatee in remainder. Under such circumstances, the executors incur no personal hazard by paying the money. It was urged upon the argument that the mere fact that the first legatee is a married won)an, furnishes evidence of danger of loss, upon which the coiirt should I'equire security for the protection of the legatee in remainder. The mere fact that the legatee is a feme covert, cannot in itself furnish any evidence of danger of loss. Both she and her husband mtiy be entirely responsible. But if the fict were otherwise, it could not, under the pleadings in this cause, constitute any ground for the interference of the court. No relief is sought upon that ground, nor does the bill contain any intinmtion of danger of loss. Application for relief upon tliat gi"ound would come more appropriately from the legatee in remain- der, or if he be an inllint, from his guardian or next friend. Usually, where the court have required security, it has been at the instance of the. legatee himself. Such bills are in the nature of a bill {]ula {had, and may be filed as well against the executor himsell", where the fund is in his hand, as against the legatee for life, whei-e thefun(J is in his hand. 1 Eq. Cos. Ab. 78, "Bills i?;" 1 MaddoGh's Ch. Fr. 219 ; 1 Story's Eq. Jur., § 730; 2 Slori/s Eq. Jar., § 845. If any real ground of apprehension of danger appeared upon the face of the |)leadings, and was admitted or supported l)y evidence, the court would require the security. I shall declare upon the case as it now stands before me, that the OCTOBER TERM, 1863. 419 Morris Canal and Banking Co. v. Central Railroad Co. et al. executors are authorized to pay over the money to the first legatee without security. If the danger of loss really exist, or if it should hereafter arise, the determination of this case will not prevent an order for security upon the application of the party interested. Cited in Howard v. Howard's Ex'r, 1 C. E. Gr. 488 : Jones' Ex'rs v. Stites, 4 a E. Gr. 327 ; Parker's Ex'rs v. Moore, 10 C. E. Gr. 23(5 ; Drummond's Ex'rs v. Drammond, 11 C, E. Gr. 239; Hennion's Ex'rs V. Jacobus, 12 C. E. Gr. 29. The Morris Caxal axd Banking Company vs. The Central Railroad Company op New Jersey and others. 1. To entitle a party to an injunction, his title to the property and rights claimed by hira, and for the protection of which he asks the inter- position of the court, must appear in a clear and satisfactory manner. 2. Thfc making and filing of the survey required by the 5ih section of the act incorporating the " Morris Canal and Banking Company," (Paviph. L. 1824, p. 160,) is a necessary prerequisite to the taking of any lands un- der the powers given by the charter. 3. It is an established rule in the exposition of statutes, that the inten- tion of the legislature is to be derived from a view of the whole, and of every part of the statute taken and compared together. The real intention, when ascertained, will prevail over the literal sense of terms. When words are not explicit, the intention is to be collected from the context, from the occasion and necessity of the law, from the mischief felt, and the remedy in view ; and the intention is to be taken or presumed, according to what is consonant to reason and good discretion. 4. As a rule of construction, the legislature ought to be considered as in- tending to grant, by a charter of incorporation, such powers 'only as are necessary or useful to the end or object which they had in view in creating the corporation. They ought not to be understood as granting anything more, unless the intention to do so is plainly expressed, or beyond a doubt. 5. In public grants the grantee can take nothing not clearly given him by the grant. In cases of doubt, the grant is construed in favor of the state, and most strongly against the grantee. 6. The third section of the " act to incorporate the Associates of the Jersey Company," {Pamph. L., 1804, p. 370,) enacts as follows: " That the said Associates shall have the privilege of erecting or building any docks, wharves, and piers, opposite to, and adjoining the said jiremises in Hud- son river, and the bays thereof, as far as they may deem it necessary for the improvement of the said premises, or the benefit of commerce, and to 420 CASES IN CHANCERY. Morris Canal and Banking Co. v. Central Railroad Co. et al. appropriate the same to their own use." Held, that this section merely gave tlie Associates a privilege or license to build docks, wharves, and piers, in the waters of the Hudson river, and the bays aforesaid, in the manner therein mentioned, and when so built, to appropriate them to their own use, and conferred upon thera no power to transfer or convey such privilege or license to any other corporation. Held further, that the land not so occupied and built upon was not granted to the Associates, and that the same and all rights in and over it remain in the state as before. 7. This court will not interpo'^e by injunction to prevent an apprehended injury, which is not irreparable, and wliich is capable of compensation in damages. 8. An injunction should only be issued in cases of great injury, where courts of.law cannot afford an adequate or commensurate remedy in dam- ages. Tiie riglit must be clear, and the injury be impending or threatened, so as to be averted only by tlie protecting, preventive process of injunction. Upon tlic filing of the bill in this cause, an order was made that the defendants show cause why an injunction should not issue according (o the prayer of the hill, and granting a temporary injunction in the meantime. The defendants filed their answers, and affidavits were taken, under an order of the court, to he read upon the argument of the rule to show cause. The cause was heard, by direction of the Chancellor, before James Wilson, esquire, one of the masters of the court, upon the rule, upon the bill, answers, and affidavits. J. W. Scuddcr and Zabriskie, for complainants. Browning and Williamson, for defendants. The Master. The complainants, by their bill, set forth that under their charter and the supplements thereto, they constructed their canal from the waters of the Delaware to the waters of the Hudson, and that, in its easternmost sec- tion, it crosses the Hackensack river and Mill creek, and that l. SmWi V. CoUi/er, 8 Vesei/ 89 ; Mayor of Jersey City v. Mor- ris Canal and Bankinr/ Co., 1 Beas. 551. The large basin des!;cril)ecl iti the bill, is an important part of the projierty claimed by the com[)lainants, and I will con- sider first the questions arising upon this part of the case. This basin is constructed in the navigable waters of the Hudson river and Communipaw bay, and is wholly below low water mark. It was built by the comphvinants between the month of October, 1859, and the month of October, 1860, as stated in their bill. They also state that they constructed it under the titles acquired in the manner set fortli in the bill, and " under the powers given by their charter, and the supt)leinents thereto, and under the express authority given by the Associates of the Jersey Company, and lawfully trans- ferred to the complainants." Let us, then, inquire what are the powers given by the complainants' charter and the supplements thereto, for this j)urjK)se. By the fifth section of the charter, they are au- thorized to construct a canal or artificial navitration to con- neet the waters of the Delaware with the waters of the Pas- saic, " with all the locks, works, devices, wharves, toll houses, and offices, necessary for the use of the said canal." And also by themselves and their agents to enter u[)on and sur- vey all lands, for the purpose of surveying the route of their canal, and locating the several works above specified. And it is declared by the same section, that when the said route "shall have been fixed ujion, and its several works located by the president and directors, or a majority of them, and a survey thereof dej)ositcd in the office of the secretary of state, then it may be lawful for them and for any agent, superin- tendent, engineer, contractor, or any person or })ersons em- ployed in the service of said corporation, at any time to enter upon, take possession of, and use all and singular such lands, water, and streams, subject to such compensation to be made therefor, as is hereafter directed." The supplement of the 28th January, 1828, authorizes the company to extend their canal to the Hudson^ but does not OCTOBER TERM, 1863. 427 Morris Canal and Banking Co. v. Central Railroad Co. et al. give any further powers for the purposes above stated, than those mentioned in the fifth section of the charter. It is stated in the answer, and upon tiie argument was ad- mitted by the coiDplainant's counsel, that no survey of the ])lace where tne basin is constructed was ever made or de- posited in the office of the secretary of the state, in conf »rmity with the requirements of tiiis section. The making and filing of such survey is a necessary prerequisite to the taking of any lands under the powers given by their charter. Bo- naparte V. Camden and Amboy R. R. Co., Baldwin's R. 205 ; Doughty v. Somcrville and Eadon R. R. Co., 1 Zab. 442. I did not understand the complainant's counsel to deny the correctness of this position. The complainants, there- fore, not having filed the required survey, could not lawfully construct his basin by virtue of their charter, if they acted under that alone, and without further authority and right. But they insist that they had further authority and right. They say that docks or basins are comprised in the " works and devices" wliich, by their charter, they are authorized to make, and that uixler and by virtue of the conveyances from " The Associates of the Jersey Company," set forth in their bill, they, the complainants, became the owners in fee of the lauds under water, now occupied and enclosed by this basin ; or that, if said conveyances did not convey the fee in said lands, they transferred to the complainants a right and au- thority to construct docks, wharves, and j)iers, in said waters, and that, by virtue of the title or right so derived from the associates, in connection with the powers given by their char- ter, as aforesaid, they had full power to construct said basin, and appropriate it to their own use. The title or right which it is contended the Associates thus transferred to the com- plainants, it is insisted the Associates had and held, under and by virtue of their charter. They were incorporated by an act of the legislature, passed 10th November, 1804. It will be necessary, therefore, now to examine that statute, in o>'dor to see what rights it gave to the Associates. 428 CASES IN CHANCERY. Morris Canal and Banking Co. v. Central Railroad Co. et al. "It is an established rule in the exposition of statutes/' says Chancellor Kent, '' tiiat the intention of the legislature is to be derived from a view of the whole, and of every part of a statute, taken and compared together. The real inten- tion, when ascertained, will prevail over the literal sense of terms. * * * * When words are not explicit, the in- tention is to be collected from the context, from the occasion and necessity of tiie law, from the mischief felt, and the remedy in view ; and tiie intention is to betaken or presumed according to what is consonant to reason and good discre- tion." 1 KruVs Com. 461-2. Chief Ju.stice jNlarsliall, in speaking of the proper means of arriving- at the true meaning of a statute, says: " Where the mind labors to discover the design of the legislature, it seizes everything from whicii aid can be derived, and in such case, the title claims a degree of notice, and will have its due share of consideration." United States v. Fisher, 2 Cranch 386. The title of this act is " an act to incorporate the Associates of the Jersey Company." In the preamble it is set forth, that it has been represented to the legislature, that Richard Varick and others have be- come proprietors, by ])urchase from Cornelius Van Vorst, of a certain tract of land and premises therein described, called Powles' Hook, with a ferry right, and that they had divided it into one thousand shares, and that they had, by agreement, associated and become associates with divers other persons in said shares, and that said associates had- petitioned the legislature for an act of incorporation. By the first section, the said Richard Varick, and the said other persons interested with him in said shares, are consti- tuted a body corporate, with powers to sue, &c., and are de- clared to be capable, by their corporate name, to have and bold lands, tenements, and hereditaments. But it is expressly provided and declared, in and by said section, that the lands, tenements, and hereditaments which it should be lawful for the said corporation to hold, should only be the said tract of OCTOBER TERM, 1863. 429 Morris Canal and Banking Co. v. Central Railroad Co. et al. land and premises, with the privileges and appurtenances in said act before described, and sucli other lands as they might take in payment or security ft)r debts. The second section gives the said corporation " power to lay out streets and squares on said tract, and to establish such as had already been laid out, and to regulate the same, and to direct and govern the leveling, pitching, and construct- ing of the said streets, and the raising and leveling of all lots and grounds for buildings, as well jjublic as j)rivate, and to order and regulate the building of all docks, jiiers, and wharves, and all store-houses and buildings thereon, and to make by-laws, ordinances, and regulations, touching all the said matters, and to enforce the same by penalty." But the powers conferred by this section. It is declared, shall cease whenever the legislature shall institute another corporation for those purposes. The third section enacts as follows : " That the said As- sociates shall have the privilege of erecting or building any docks, wharves, and jiiers, opposite to and adjoining the said premises in Hudson river and the bays thereof, as far as they may deem it necessary for the improvement of the said premi- ses, or the benefit of commerce, and to appropriate the same to their own use." The eighth section directs that the clerk of Bergen county shall appoint a deputy, who shall be sworn as such, and reside and keep an office within the district of country for- merly known by the name of the Island of Tlursimus, and ■which includes Powles' Hook, who shall keep proper books for the recording of all deeds, mortgages, and writings which might thereafter be made or executed, relating to real estate within said district. The tenth section declares that all sales at auction, to be made at Powles' Hook and the said island of Hnrsimus, shall be free from any duty imposed by this state, fur the period of fourteen years from the passing of said act. These are the parts of the act which relate more particularly to the object of our present inquiry. Vol. I. 2d 430 CASES IN CHANCERY. Morris Canal and Banking Co. v. Central Kailroad Co. et al. We see, therefore, from these provisions, that the persona named in the act are incor])orated by it, and that the tract of land and premises, to wit, Powles' Hook, wliich they before held and owned as individuals, they are made capable of holding and owning as a body corporate; and that they are not permitted to hokl any other lands, except such as they might take in payment or security for debts ; and that they are empowered to exercise, for a limited time only, the municipal jwwers mentioned in the second section. We see, also, that certain privileges and benefits are, by the eighth and tenth sections, secured to the inhabitants of Powles' Hook, and are extended to their neighbors upon other parts of the island of Harsimus. The object and intention of the legislature in passing this act, so far as they can be gathered from the act itself, seem to have been to enable the corporation thereby created, to lay out and improve the said tract known as Powles' Hook, and prepare the same for settlement as a town or city, and to invite and encourage persons to settle and build there. And the powers granted seem to be limited so as to apply to that place only, and to be used for that purpose and no other. The corporation is authorized to hold that tract, and no other land, save such as they might take in payment or security for debts. The powers granted by the second sec- tion are to be exercised in and over that place, and no other, and are to cease upon the happening of the event named. The privilege granted by the third section, to build docks, wharves, and piers in the waters there named, specifies that they may be built as far out as the said Associates may deem necessary for the improvement of said premises, or the benefit of commerce. The object and intention of the legis- lature, as thus understood, in passing this act, should be borne in mind and have their due influence, in examining the different parts of the act to ascertain their true meaning. It is insisted by the complainants, that by the third sec- tion, the fee simple in all the lands under water in Hudson river, Communipaw bay, and Harsimus bay, opposite to and OCTOBER TERM, 18G3. 431 Morris Canal and Banking Co. v. Central Railroad Co. et al. adjoining Powles' Hook, as far out as the right of the state extended, was granted to the Associates, or that the riglit to build docks, wharves, and piers in the waters of said river and bays was thereby granted, and that sucii right was an incorporeal hereditament in gross, and that the Associates had a right to convey, and did convey such fee simple or right to the complainants. On the part of the defendants, it is insisted that the priv- ilege granted by the said third section to the Associates, was only a privilege or license to build said docks, wharves, and piers, and appropriate them to their own use, and that they could not convey or transfer the said privilege to the com- plainants or tQ any other corporation. AVhen we take into consideration the extent and value of those lands under water, their situation in relation to our own state and to the city of New York, with its extensive and valuable trade and commerce, and forming, as those waters do, an important part of the harbor of New York, the best, not only in this country, but upon this continent, it is most reasonable to conclude that, if the legislature intended to grant and convey the fee in said lands, or such right over them as is contended for by the complainants, that their io- tention would be made plainly to appear, and that the grant itself would be made itf clear, direct, and explicit terras. What has been done in other cases of grant of lands by legislative act in tliis state ? It is said by Judge Elmer, in the case of Bell v. Gough, 3 Zab. 667, that "but three cases of distinct grants of land covered with water, or of the siiore, by the legislature, are to be found in our statute books,'' referring to the grant of the Pea Patch to Henry Gale, by the act of 24th November, 1831, Pamph. L. 15; the grant to Nathaniel Budd, by act of 8th November, 1836, Pamph. L. 13; and the grant to Aaron Ogden, by act of 25th January, 1837, Pamph. L. 64. In the Pea Patch grant, the language of the act is, that "all the right and title of the said state of New Jersey to the said island called the Pea Patch, with all and singular the 432 CASES IN CHANCERY. Morris Canal and Banking Co. v. Central Eailroad Co. et al. appurtenances, be and the same are hereby granted and con- veyed to the said Henry Galo, his heirs and assigns forever; and that the same shall forever hereafter be vested in the said Henry Gale, his heirs and assigns, in as full and ample a manner as the state of New Jersey hath right and title to grant the same," reserving, however, the state's right of jurisdiction and sovereignty. The language in the grant to Budd is the same, and in that to Ogden is equally clear. The language Hsed in these three acts, leaves no doubt in regard to the intention of the legislature, or the nature and extent of the estate granted. Compare this with the lan- guage of the third section of the charter of the Associates. The difference is striking. The grant of the Pea Patch declares that " all the right and title " of the state to the same, " are hereby granted and conveyed to the said Henry Gale, his heirs and assigns Jorcver, and that the same shall forever hereafter he vested in the said Henry Gale, his heirs and as- rigns," &c. The third section of the Associates' charter declares that "they shall have the privilege to build docks, wharves, and piers," &c., and " to appropriate the same to their own use." The words "grant," "convey," "right," "title," "estate," are none of them found in it. Not only is the language of this third section different from that used in those grants, but it is also wholly unlike that uniformly used in a deed in- tended to convey a fee simple, or such right as the complain- ants are contending for. No discreet conveyancer would use auch language in such a deed. It would not be deemed either apt or adequate for the purpose. And when a grant of an estate in fee, in lands so extensive and valuable, or a grant of so important a right over them as is argued for by the complainants, is intended to be made by the state, by means of an act of the legislature, passed with all the for- malities and deliberation attendant upon legislation, is it not reasonable to suppose that they would employ language at least as plain, explicit, and direct, as that which is deemed OCTOBER TERM, 1863. 433 Morris Canal and Banking Co. v. Central Railroad Co. et al. appropriate and necessary in an ordinary deed between in- dividuals ? Again : This third section declares that the Associates shall have the privilege of building docks, wliarves, and piers in those waters, and to appropriate the same, that is, the docks, wharves, and piers, to their own use. Can this properly be said to grant all those lands under water upon which the Associates did not build any dock, wharf, or pier? If it was intended by the legislature to grant ilie lohole of those lands, or a right for ever over the tohole of them, whether so built upon or not, why was this section so framed and ex- pressed as to declare in effect, that when they built a dock, wharf, or pier upon any particular pari or portion, they might appropriate the .same to their own use? Is the giv- ing of a privilege to occupy and build upon, and then to appropriate a part of certain lands, a grant or conveyance of i\\Q whole of those lands? Does not this section, by giving to the Associates a privilege of building and appropriating to their own use, docks, wharves, and piers, which must of necessity be built upon parts and portions of those lanck under water, selected from time to time, exclude the idea that the legislature meant to grant the whole of said lands ? Is it not really an indirect declaration, that the land not so occupied and built upon was not granted, and that the same, and all right in it, and over it, remained in the state as before ? Would such construction of this section as is contended for by the complainants, be in accordance with the intention of the legislature in passing this act, or in harmony with the other parts of the act? It seems to have been intended to restrict the powers of the Associates within narrow limits. They are incorporated by the first section, and enabled to hold lauds, &c. The powers given by the second section were to last but for a time, and when they ceased, little else but the power to hold Powles' Hook and improve it, re- mained in the Associates!, excei)t what is given by the third section. The first section, moreover, expressly provides that 434 CASES IN CHANCERY. Morris Canal and Banking Co. v. Central Railroad Co. et al. the lands, tenements, and hereditaments which they shoidd be capable of holding, should be only those therein before de- scribed. Would the legislature, after thus restricting the powers of this corporation, and after expressly declai'ing that they should not be capable of holding any other lands, tene- ments, or hereditaments than those mentioned in the first section, proceed at once in the third section to grant to them those extensive and valuable lands under water in fee simple, or such incorporeal hereditament in or over them as is con- tended for by the complainants? The two sections as tiius construed woidd conflict with each other. Again : The privilege given by the third section to the Associates, is to build docks, &c., in those waters, as far out as they may deem necessary for the improvement of the said premises, or the benefit of commerce. Here it is left to them to judge and decide in this matter. They were the owners of Powles' Hook, and as such were incoiporated with pow- ers to hold and improve it, with the view of building up a town. And as they, as a corporation, were to own no other lands, and could have no object or interest different from this, such right to build docks, wharves, and piers, might safely be vested in them, to be used according to their judg- ment They could have no motive to use this privilege for any other purpose, and it was granted to them in further- ance of the object and intent of the act. But if the right or privilege granted by this section, were such as is con- tended for by the com{)lainants, the Associates might not only use it themselves, but migiit sell antl convey it away, or it might be sold against their will, by virtue of judgment and execution against them, and might tlius pass into the hands of unfriendly individuals, or of a corporation created for other purposes, and having interests in conflict with, or hos- tile to the interests of the community or town of Powles' Hook. And thus what was granted by the legislature for their benefit, might be used for their injury or destruction. The legislature might well be willing to grant such a pri- vilege to the Associates in such manner as to be used by OCTOBER TERM, 1863. 435 Morris Canal and Banking Co. v. Central Railroad Co. et al. them and according to their judgment, for the building up of Powles' Hook and the encouragement of its trade and com- merce, but unwilling to grant them an estate or right which might pass into other hands, and be used for very different and perhaps contrary purposes. Moreover, the provisions of this third section seera not to be the main purpose of the act, but merely auxiliary thereto. I think it is right, as a rule of construction, to consider the legislature as intending by this section to grant such powers as were necessary or useful to the end or object which they had in view in creating this corporation, and that they ought not to be understood as giving or granting anything more, unless their intention to do so is declared or made known in the plainest terms, leaving no possible room for doubt. Here, if the third section is construed to give to the Associates only a privilege or license to build docks, on the reasons there stated, I am of opinion that tlie complainants have not shown sucli title to the said crib-work, as entities them to an injunction to protect them in the enjoyment thereof. Upon this ground, I am of opinion that the injunction issued in each of these cases, should be dissolved with costs, and I do respectfully advise the Chancellor to make an order accordingly. ADorxEO, Mor. Canal and Bkg. Co. v. Matthieson, 1 C. E. Gr. 444. Cited in Sfevens v. Pat. and Newark R. B. Co., 5 Vr. 535 ; Carlisle v. Cooper, G C. E. Gr. 581. *Ante p. 419. OCTOBER TERM, 1863. 445 Walter et al. v. Lind et al. Simon Walter and others vs. William Lixd and others. A a.2;reed to convey to B a tract of land for l^oOO. B applied to C for a loan of that amount. C agreed to loan B S550 npon his giving a mort- gage upon tiie s;iid tract for $350, with interest at seven per cent. Upon agreement between the parties, A executed a deed to B for the land for tlie nominal consideration of $SoO ; B giving A a bond and mortgage for that amount. A assigned llie mortgage to G in pursuance of the agreement for $550 ; $50 in cash to be paid to B. Of this amount nothing was actually- paid to B. Upon a bill to foreclose, tiled by C, to recover the nominal consideration of $S50, Held, 1. Tlie transaction, though in form a sale and mortgage for ?850, in reality was a sale and mortgage for $500. 2. Tiie mortgage was not usurious. It was made for a legitimate pur- pose, though for a larger amount than was really due. There being no usury in the inception of the contract, no subsecjuent transaction can ren- der it usurious. 3. The complainants are entitled to the $500, actually advanced by them to the mortgagee. Tiie contract by wliich they claim $350 beyond tliat amount was usurious, and cannot be enforced. Under such circumstances, the mortgage will be deemed a security for the amount actually advanced. J. Whitehead, for the coniphiinants. I. Ustiry, in tl^e answer of the defendants, Lind and wife, is not pleaded according to the facts of the case. Usury tmist be pleaded in accordance with the facts, and the prof)f nuist support the plea. Smith v. Brush, 8 Johns. B. 84 ; Tate v. WelUngs,^ T. R. 531, Lord Kenyon'sopini(Mi, page 538 ; Lawrence v. Knies, 10 Johns. R. 140 ; Fulton Bank v. Beach, 1 Paige 429 ; Roice v. Phillips, 2 Sandf. Ch. R. lA; Heljield v. Newton, 3 Ibid. 5G4: ; Vroom v. Ditinas, 4 Paige 526 ; 8 Paige 452. IT. A security uncontaminated with usury at its ince[)tion, is not affected by any subsequent usurious transaction. Gray V. Fowler, 1 H. Black. 463 ; Pollard v. Seholy, Croke Eliz. 20 ; Rox V. Allen, 1 Mod. 69 ; Ballard v. Oddey, 2 Mod. 307 ; Rex v. Seicell, 7 Jlod. 119 ; Broicn v. Fulsbye, 4 Leon. 43 ; Body v. Tassell, 3 Leon. 205 ; Fassel v. Brooks, 2 Carr. Vol. I. 2 E 446 CASES IN CHANCERY. Walter et al. v. Li ml et al. & P. 318; Pcarsall v. Kingsland, 3 Edw. Ch. E. 195 ; Busk V. Livhgstoji, 2 Caines' Cases in Error QQ : Ferral v. Siuieu, 1 Saund. 295, note 1 ; Sloan v. Sonimers, 2 Green's R. 510 ; Donnington v. IJreker, 3 StocJd. 362. III. A sale of a promissory note or bond, although for an amount which, if calculated with reference to interest on the princij)al, would amount to usury, does not vitiate the secu- rity. Donnington v. Meeker, 3 Stookt. 362 ; Mann v. Com- mission Co., 15 Johns. R. 44. IV. The transaction which gives rise to the controversy in this cause, amounts to nothing more nor less than a mere change of one security for another. The deed from Lind to Swift was but a mere mortgage, and it was exchanged f )r a bond and mortgage. Lind was the agent of Swift, employed to sell that bond and mortgage. It was, therefore, Swift's act. It makes no difference to Lind whether Swift still held the deed, or bond and mortgage. He would be equally bound to pay $850 in either case. Lind owed Swift §850, and was bound to pay it. Swift assigned his claim to the complainants ; sold it for less than was due on it; but that matters not to Lind. There was no attempt at evading the usury law. The sale was not made for that purpose. The value of the land is said to be less than the face of the bond and mortgage. That was an additional inducement to Swift to sell. V. What is the relief of the complainants. Clearly a decree for the whole amount of the bond and mortgage. Because — ■ 1. The entire estate of Swift passed by his transfer; and that entire estate was the whole amount of the money due, principal and interest. If Swift were suing, there would be no question as to his right to recover. The complainants stand in his shoes, and are entitled to his rights. 2. This course can work no damage to Lind or his wife. They owed Swift $850, and have never paid it. They owe OCTOBER TERM, 1863. 447 Walter et al. v. Lind et al. it Still, and ought in equity to pay it. It can work no dam- age to Pierson. He received his mortgage with notice of the mortgage of the complainants. Tiieir mortgage was on record. The property was subject to that lien at the time he took his security, and that lien was for a just debt and a legal one. In the case of Donnington v. Meeher, no deduction was made. None should be made here. The defendants have paid nothing upon the mortgage; no reduction has been made by tiiem of the original debt, and no hard or uncon- scionable bargain driven with them. E. ScJilcfner, for the defendants, Lind and wife. 1. On the sale of real estate covered by one or more mort- gages, to the mortgagee, the mortgage or mortgages merge in the new deed of conveyance, and become null and void. The former mortgagee and new owner can, at a resale of the real estate in question to the former mortgagor and later con- veyor, demand such a j)rice as he thinks a fair equivalent for the real estate he is about to reconvey. 2. A sale by the former mortgagee and later owner of real estate, to a second wife of the former mortgagor and con- veyor, which wife never had any interest in said real estate, concludes, if made with the knowledge and privity of other persons, as for instance the assignee of a bond and mortgage covering the real estate in question, any objection on their part that the conveyance to the former mortgagee was not a bona fide transaction, and that the said mortgagee never was a bona fide owner of the said real estate. ?>. All notes, bills, bonds, mortgages, &c., made in the county of Essex, for the payment or delivery of any money loaned, on which a higher interest is reserved or taken than seven per cent., are utterly void. Nix. Dig. 401, §1,2; Ibid. 402, § 8. 4. Whatever form, shape, or disguise, a contract for the loan of money assumes, when the capital is returned, a profit made, or loss imposed, upon the necessities of the borrower 448 CASES IN CHANCERY. Walter et al. v. Lind et al. over the legal rate of interest, will constitute usury. And that usury may be committed by agreeing to take the legal interest on a larger sum than that really loaned. Ely v. McChmg, 4 Porter {Ala.) 128; Doicdall \. Lenox, 2 Edw. Ch. B. 267; Elood v. Shamburg, 3 Cond. La. B. 180. 5. The position of the defendant, Lind, when he negoti- ated the sale of the new mortgage, not yet drawn or exe- cuted, was like that of the maker of an accommodation note, which has been endorsed by somebody else, and on which the maker of the note and real borrower wishes to raise a loan by selling the same at a large discount. Such a transaction is within the statute against usury. Iloleman v. ETobson, 8 Humph. {Tenn.) 127; 3 Johns. Ch. B. 395. Titsworth, for the defendant, Pierson. The Chancellor. The bill is filed to foreclose a mort- gage given by Lind and wife to Abiel W. Swift, dated June 3d, 1861, for $850, payable in two years, with interest atseven per cent, payable semi-annually. The defence is that the mortgage was given for a usurious loan. The answer alleges that on the 4th of February, 1861, about four months before the date of the mortgage, the mortgagor ])urchased the ])re- mises of Swift for $500. That, i)aving apj>lied to the com- plainants for a loan of that amount, they agreed to lend hira $550 upon his giving them a mortgage for $850, with interest at seven per cent., to which the mortgagor agreed. That thereupon, and about the 28th of May, 1861, it was agreed between the parties, that Swift should execute a deed for the land, expressing the con5:ideration to be $850, that Lind and wife should give him a bond and mortgage for that amount, which should be assigned by hira to the complainants for $550, and of that sum fifty dollars in cash should be paid to the mortgagor. That in pursuance of this arrangement, on the third of June, a deed was executed by Swift and wife to the wife of Lind, and thereupon the bond and mortgage for $850 were executed and delivered to Swift, and by him as- OCTOBER TERM, 1863. 449 Waller et al. v. Lind et al. eigned to the complainants, and that of the $50 agreed to be paid to the mortgagor, he received but $25, the balance hav- ing been retained, as they allege, for fees and costs. That this sum of $25 was paid to the mortgagor about the 23d of August, at which time Swift received $500, the price of the lot. The answer alleges that the making and delivery of the bond, mortgage, and assignment, were all usurious, and that the consideration moneys mentioned therein were not actually paid, but were so stated and set forth to conceal a fraudulent and usurious transaction. The answer further insists that the bond and mortgage are usurious, because they were made and dated several months before the payment of the money loaned to the mortgagor. The undis[)uted facts of the case are, that on the 22nd of May, 1857, William Lind, the mortgagor, being the owner of the mortgaged premises, and being largely indebted, by mortgage and otherwise, to Abiel W. Swift, conveyed the premises in fee, by deed of bargain and sale, to Swift, his creditor, in payment of his debt. The entire indebtedness was $1250, of which sum $850 had been secured by mort- gage upon the premises. The deed was not given by way of mortgage, or as collateral security. The testimony of Mr. Swift is very express upon this point. In answer to the question whether he considered the deed made to him by Lind anything more than a security for the debt, he an- swered : " I consider it a bona fide sale. I don't consider he owed me anything after he made me the deed." Lind, in fact, had been many years in the employ of Swift, and had become his debtor for advances made from time to time, to an amount beyond the value of his property. Swift had been an indulgent creditor, and permitted Lind, after the conveyance in payment of the debt, to remain upon the premises. Such being the relation of the parties, Lind still being in embarrassed circumstances, and the fee of the land remaining in Swift, in the year 1861, shortly before the date of this mortgage. Swift agreed to convey the land to the wife of Lind in fee, if he would pay him |500. To carry out 450 CASES IN CHANCERY. Walter et al. v. Lind et al. that bargain this mortgage was made. Lind, by his answer, states that he applied to these complainants for a loan of ^500, that they agreed to loan, and did loan him that amount of money, and took the mortgage in its present shape as a mere contrivance to cover up the us*iry. It is admitted that the complainants advanced upon the mortgage but $550, and for that sum advanced, they Iiold the defendant's bond and mortgage for $850, payable in two years, with interest at sev^en per cent. ; an operation by which they realize in two years upon $550, a bonus of $342, over and above the legal rate of interest. But it is urged that this was not a loan of the money from the complainants to the mortgagor, but a sale of the mort- gage, and that the defendants had a right to purchase at any rate of discount, without being chargeable with usury. This appears to me a total misapprehension of the true character of the transaction. When the negotiation for this loan was entered upon, Lind was not the debtor of Swift. Swift was the owner of the land which had been conveyed to him by Lind in payment of the debt. He had agreed to recouvey the land to Lind, or, at Lind's request, to Lind's wife, for the sum of $500. For that amount Lind was desirous to effect a loan. But he had no security to offer till he could get the title. An arrangement is therefore made, by which Swift conveys the land in fee to Lind's wife for the nominal con- sideration of $850, and Lind, in return, gave Swift a bond and mortgage upon the premises for that amount, with the understanding that if the mortgagee received $500, his claim for the land was paid in full. These papers were placed in the hands of the counsel or agent of all the parties, to raise the money and carry the arrangement into effect. As between the mortgagee and mortgagor, there is no pretence of usury. The mortgagee testifies expressly that he agreed to convey the land for $oOO. That was all that was due him, but the mortgage was taken above the sum of $500 for Lind's benefit, to enable him to raise the money upon it. All that was realized upon the OCTOBER TERM, 1863. 451 Walter et al. v Lind et al. mortgage above that amount belonged to Liiul, not to Swift. Swift's interest in the mortgage was limited to $500. That was all he claimed, and all he received. If the mortgage had been sold for its nominal value, $850, three hundred and fifty dollars of that amount would in equity have belonged to Lind, and he might have compelled the repayment of the money. To the extent of Swift's interest, the sale was ne- gotiated and made for his benefit, but beyond that amount it was in reality negotiated and made for Lind's own benefit. The loan was, in fact, as the whole transaction shows, nego- tiated by him, and in reality for his benefit. That this wasso understood, is shown by the fact that when the loan for $550 was effected, $500 was sent to the mortgagee, and the other $50 appropriated for the benefit of the mortgagor. How, then, can this be denominated a sale by the mortgagee of the mortgage? Is it not obvious that it was in reality an effort by the mortgagor to raise a loan upon his own mortgage, given to a third party, for an amount beyond the sum really due? The papers themselves demonstrate that this must of ne- cessity have been the real character of the transaction. The deed from Swift, the bond and mortgage from Lind and wife to Swift, and the assignment from Swift to the complainants, are all dated on the 3d, and acknowledged on the 4th of June, 1861. They are all drawn by the same scrivener, attested by the same witness, and acknowledged before the same master. They are obviously parts of one and the same transaction. The negotiation for the loan must have been entered upon and completed when there was no mortgage in existence, and \yhen the fee of the land was in the mortgagee. These facts demonstrate the truth of the mortgagee's evi- dence, that he was to receive S500 for the land, and that the mortgage was made to be assigned for that amount. Beyond that sum the interest was in the mortgagor. As between the complainants and the mortgagor, the transaction was sim|)ly this : they loaned him $550, and took his mortgage for $850 ; and of the $50 loaned, they took $25 to pay the ex- 452 CASES IN CHANCERY. Walter et al. v. Lind et al. penses of preparing the papers and insuring the property, and appropriated the remaining $25 to pay a debt alleged to be due from the mortgagor to the brother of one of the mortgagees, who aided the mortgagor in negotiating the loan. The witness, indeed, testifies that the mortgagor promised ])im the whole $50 as a compensation for raising the money. A clearer case of usury it is difficult to imagine. To permit such a contract, established by clear testimony, to be enforced in a court of equity, would be a reproach to the administra- tion of justice. There is nothing in the evidence which can alter the essen- tial character of the transaction. It is unnecessary, therefore, to discuss the credibility, or the competency of the evidence on the part of the com[)lainants. The complainants' counsel insists that the mortgagor has no ground of com})laint, as he is in no wise injured by the transaction. That he gave a mortgage for $850. Tiiat he was indebted in that amount to Swift. That the mortgagee could have recovered the amount due on the face of the mortgage, and that the assignees are entitled to stand in his shoes. That the assignees are entitled to stand in the shoes of the mortgagee is true, but the whole fallacy of the argu- ment consists in the assumption that the mortgagee was en- titled to recover the face of the mortgage. Swift was entitled to $500, and it is clear that the assignees can recover no more. The apparent contradiction in tiie testimony of the witnesses on this point, is attributable mainly to the fact that they speak sometimes of the form, and sometimes of the sub- stance of the transaction. In form, it was a sale and mort- gage for $850. In reality, it was a sale and mortgage for $500. The apparent conflict in the testimony on this point, is rendered totally immaterial by the admitted facts that the mortgagee claimed and received but $500 upon the mortgage. The bill alleges that the mortgage itself is usurious. This is a mistake ; but I do not think the error is fatal. The mode in which the usury was taken is intelligibly stated, and substantially in accordance with the evidence. OCTOBER TERM, 18G3. 453 • Swedesboroiigh Cliurch v. Shivers. The mortgage, however, was clearly not usurious. It was made for a legitimate purpose, though for a lai'ger amount than was really clue. There being no usury in its inception, no subsequent transaction can render it usurious. Sloan v. Sommcrs, 2 Green's li. 510; Donnington v. Meeker, 3 Stoekt. 362. There was due upon it from the mortgagor $500, which was paid by the complainants to the mortgagee, and which in equity they are entitled to receive. The contract by which they claim to recover $350 beyond that amount, was usurious and cannot be enforced. Under such ciieumstances, the mortgage will be deemed a security for the amount actually advanced. Eaglcson v. Sfioticcll, 1 Johns. Ch. li. 53G. A decree will be made accordingly. The Rector, Church Wardens, and Vestrymen op THE Swedish Evangelical Lutheran Church in THE TOWN OP SWEDESBOROUGII, NEAR RaCCOON CrEEK, VS. Charles P. Shivers. 1. Where there is uncertainty as to tlie extent of the responsibility of !i party from whom rent is sought to be recovered, a court of equity will maintain jurisdiction of a suit for its recovery. 2. A bill is not demurrable for want of proper parties, when all the persons whose riglits are to be atl'ected by the decree are joined. 3. A change in the ecclesiastical relation of a church for whose benefit property is held in trust, does not necessarily involve any perversion of the trust, or diversion of the fund from its legitimate purpose. 4. An objeclion to a suit that the amount involved is too trivial to justify the court in taking cognizance of it, may be taken advantage of by special motion to dismiss the bill, or the court may of its own motion at the hear- ing, order the bill to be dismissed. 5. If a suit have no other object than the mere recovery of a sum of |)1.75, the bill will be dismissed; but if it seeks to establish a right of a permanent and valuable nature, it falls within the recognized exceptions tfl the general principle, and the court will maintain jurisdiction. 454 CASES IN CHANCERY. Swedesboroiigh Church v. Shivers. Kingman, for the defendant, in sup[)ort of the deuiurrer. Tlie bill is defective on three grounds. 1. Want of necessary j/arties. 2. Want of certainty. 3. The complainants have full and complete remedy at law. The bill is not only defective for M'ant of necessary parties, but it contains irrelevant and impertinent matter. It sets out a great many different conveyances to different parties. The complainants do not claim any certain amount. They show that the lot in question has been subdivided, and that it is held in tiiree shares, without showing how much is due upon the share held by the defendant. The bill shows that the complainants have a right to re- cover at law. The charter gives a right of distress. An action ou the case would lie. They may recover in justices' court. Carpenter, for the complainants, contra. The question involves large interests and a great amount of property. The whole town of Swedesboruugh is held under ground rents. The Swedish church have affiliated with Episcopal church. It is now known as Trinity Church of Swedesborough. Un- der that name it has collected mortgages. The bill states the continuance of the corporation to this date. There is no want of j)arties. The bill seeks to recover only the rent charged upon the land owned by the defendant. The part held by him is precisely descril)ed. As to want of certainty. The complainants cannot state the precise sum. They call for an account to ascertain what that sum is. It is the uncertainty that sends them here. Tiiey come here on that very ground. 1 Story's Eq. Jur., § 684 ; Benson v. Baldwyn, 1 Atk. 598 ; Livingston's Ex'rs v. Liv- ingston, 4 Johns. Ch. R. 287, 290. As to remedy at law. The complainants cannot sue in an action at law. No action for use and occupation would lie against the defendant. The fee is in him. OCTOBEIl TERM, 1863. 455 Swedesborough Church v. Shivers. In an action at law, the complainants would be comj)elle(l to show the share that Shivers would be obliged to pay. The complainants do not a-k any pre(;ise sum. They ask Shivers to admit what is true, and to permit them to prove other facts to establish, as far as may be, their rights. If the Swedish church has merged in, or affiliated with the Episcopal church, and if the trust is diverted, this defendant cannot set it up. The CiiAXCELLOR. The complainants, by their bill, set forth that on or about the twenty-fifth of OL;t()I)er, A. D. 1765, they were incorporated by letters patent under the seal of tlie then province of New Jersey, in the name and under the authority of the King of Great Britain, and that tliey have continued a body cor|)orate, and have acted and been recog- nized as such, to the present time. That by their charter of incorporation they were, among other things, invested with })0wer to take, hold, and enjoy all lands, tenements, and here- ditaments, corporeal and incorporeal, given, granted, or de- vised for the use of tiie said church or parsonage of the town of Swedesborough, and to sell or dispose of the same in fee or for life, under certain yearly rents. And that being seized and possessed in fee of certain lands in the town of Swedes- borough, which had been granted to the said church and cor- poration, for the su[)port and maintenance of the minister thereof, on or about the twenty-fifth of March, A. D. 17G8, they sold and ci)nveyed in fee to divers persons, certain par- cels of the said lands, in consideration of certain yearly rents reserved to the said corporation, in and by the said deeds to be held in fee, subject to the {)ayment by the grantees, their heirs or assigns, of the annual rent in the said deed s[)ecified. That, on or about the twenty-fifth of April, 1791, the said corporation, by deed, sold and conveyed to Samuel Ogden, in fee, a lot of one acre, in consideration of the yearly rent of twenty-five shillings, reserved to be paid to said corporation for ever. That the said lot has been divided and subdivided by conveyances from those holding under said Ogden. That 456 CASES IN. CHANCERY. Swedesborongh Church v. Shivers. on the fifteenth of March, 1848, a part of said lot, described by metes and bounds, was conveyetl by Turner Risduu and wife to the defendant, subject to an annuity or ground rent, payable to the rector and church wardens of Swedesborough church (meaning the complainants), and that it was subject to a proportionate part of the ground rent reserved in the con- veyance to Ogden. That on the third of February, 1853, Shivers conveyed part of said lot, in fee, to one Malachi C. Horner, by metes and bounds, subject to an annuity or ground rent, payable on the twenty-fifth day of March, in each year, to the rector, church wardens, and vestrynien of the present Episcopal church at Swedesborough (meaning thereby to describe the aforesaid corporation). That the liability of the said land for the ground rent reserved, was acknowledged in the deeds and paid by the owners of the lots, respectively, into which the same became subdivided, from the time of the original grant till the time of the conveyance to the defendant, and that the rent was paid by him until the year 1858. But that since that time he has refused to pay any part thereof, and declares his intention to test the right of the complainants to recover the same. And that from inability to produce the deeds un- der which the defendant claims, and for want of certainty as to tiie proportion of ground rent properly chargeable on the lot held by the defendant, the complainants are unable to . proceed at law. The bill prays that the defendant may disclose and set forth the title to the lot conveyed to him, and under which he holds the same, and may admit the rent ; and that the true appor- tionment of the annual rent chargeable upon the defendant's laud may be ascertained and settled, and that an account may be taken of the rent in arrear, and that the defendant may be decreed to pay the same. To this bill there is a general demurrer, for want of equity. 1. It is urged that the bill cannot be sustained because the complainants have a complete and adequate remedy at law. OCTOBER TERM, 1863. 457 Swedesborough Church v. Shivers. Bill inasmuch as tlie defendants have a fee in the land, and a recovery must be had u])()n the deed, the complainants can- not safely proceed at law, until the sum for which the defend- ant's land is liable, is ascertained. This object the complain- ants' bill seeks to accomplish. Where tiiere is uncertainty as to the extent of the responsibility of the party from whom the rent is sought to be reeovei'cd, courts of equity will maintain jurisdiction. 1 Slori/s Eq. Jar., § 6S4:; Livingstones Ex^rs v. Limngslon, 4 Johns. Cli. R. 287. 2. There is no want of proper parties. The bill seeks to recover only the rent chararty seeks to set aside the proceedings of his adversary for an irregularity which is merely technical, he must make his application for that purpose at the first oppor- 460 CASES IN CHANCERY. Crowell V. BotsforJ. tnnity. If a solicitor, after notice of an irregularity, takes any step in the cause, or lies by and suffers his adversary to proceed therein under a belief that his proceedings are regu- lar, the court will not interfere to correct the irregularity, if it is merely technical. Hart v. Small, 4 Paige 288 ; Parker V. Williams, Ibid. 439. It is now insisted that the irregularity is not technical ; that the statute is not directory merely, but imperative; and that no valid decree can be made, except there bo a strict compliance with its requirements. The provision of the statute is a regulation of the practice of the court, directing the mode in which its proceedings shall be conducted. The time or form in which the thing is directed to be done is not essential. The proceedings in such cases are held valid, though the command of the statute is disregarded or disobeyed. Sedgioich on Statutes 368. That this is the et^^ect and operation of the statute is ap- ])arent, not only from the nature and design of the enactment, but from a reference to its origin and the history of the prac- tice under it. The commencement of a suit in chancery was originally by bill, before the issuing of a subposna. The bill contained, as it still does, a prayer for subpoena, which issued as soon as the bill was filed. Gilbert's For. Rom. 64; 3 Bl. Com. 442-3. Yet in a very early treatise upon the proceedings of the Court of Chancery, it is stated that "notwithstanding the practice before this time hath been that no subpoena should be sued forth of the CiMirt of Chancery, without a bill first exhibited ; yet of late, for the ease of all suitors and subjects, it hath been thought good that every man may have a sub- poena out of the same court, without a bill first exhibited." TothiWs Proceed. 1. And by Lord Clarendon's orders in chancery, in 1661, it is directed, " that all plaintiffs may have liberfu? to take forth subpoenas ad respondendum before the filing of their OCTOBER TERM, 1863. 461 Crowell V. Botsford. bills, if they please, notwitlistanding any late order or usage to the contrary." Bcames' Orders in Chan. 168. This order continued in force until 1705, when it was en- acted (by statute of Ann, ch. 16, § 22,) that no "subpcBna or any other process for appearance, do issue out of any court of equity, till after the bill is filed, except in cases of bills for injunctions to stay waste, or stay suits at law com- menced." The statute is equally peremptory in its terms with our own, yet it has always been regarded as directory only, and a departure from its requirements a mere irregu- larity, which subjected the party to costs. In Hinders Ch. Pr. 76, it is said that, notwithstanding the statute, "solicitors, through ignorance and inattention, frequently sue out and serve this writ before the bill be filed, taking care to file the bill on the return day, yet that prac- tice is altogether irregular (except in cases in the statute excepted), and the complainant does it at the risk of costs." The elementary books all treat the issuing of the subpoena before the filing of the bill, since the passage of the statute, as an irregularity, which exposes the complainant to the hazards of costs. 1 Neioland's Pr. 62 ; 2 Maddock''s Ch. P)\ 197 ; 1 Smith's Ch. Pr. 110; 1 DanieWs Ch. Pr. 592. The same rule prevailed under the ancient practice of the court, prior to the adoption of Lord Clarendon's order, au- thorizing the subpoena to be issued before the filing of the bill. Cases are very frequent, during the reign of Elizabeth, where costs are adjudged to the defendant, for want of a bill after the service of a subpoena. Cary^s ft. 98, 103, 105, 114, 118, 143, 145, 153, 156. Although the defendant was entitled to costs, yet by " pre- ferring costs" he was not relieved from appearing when the bill was filed, and so little was gained by the proceeding, that the practice has become obsolete. It is considered most ad- vantageous for the defendant, when he has been improperly served with a subpoena before filing the bill, to wait till the Vol. I. 2 p 462 CASES m CHANCERY. McGee v. Smith. attachment has beeu issued against him, and then to move to set the process aside for irregularity. The effect of such a proceeding is to oblige the plaintiff* to sue out and serve a fresh subpoena. 1 DanieWs Ch. Pr. 593. This, in its operation, is in accordance with the practice in this court, although no resort is had with us to the writ of attachment. The issue of the subpoena before bill filed, is an irregular- ity so purely technical, that it is waived by an appearance. 1 DanieWs Ch. Pr. 593. There is another objection which is equally decisive against the motion. It appears, by the evidence, that the subpcena was issued before the filing of the bill, in consequence of a written offer by the defendant's solicitor to enter an appear- ance for the defendant. An acknowledgment of the legal service of the subpoena was endorsed upon the writ. At the time of the endorsement, the defendant's solicitor knew that the bill had not been filed. The complainant's solicitor was justified in regarding the acts of the defendant's solicitor, as an appearance for the defendant, and as a waiver of the irregularity in the issue of the writ. Nix. Dig. 98, § 20. There is no evidence of surprise or merits. The applica- tion rests solely on the ground of illegality of the proceed- ings on the part of the complainants. The motion must be denied, and the rule to snow cause discharged, with costs. Catharine McGee vs. John Smith. 1. The title of a purchaser under a sheriffs sale, is co-extensive with the description contained in the mortgage, the bill to foreclose, and the writ of fieri facias under which the sale was made. 2. It is not necessary that the decree should describe the premises pre- cisely ; it is usual to designate them in the decree by reference to the bill, 3. A party to a foreclosure suit is bound by the decree, and cannot con OCTOBER TERM, 1863. 463 McGee v. Smith. test the title of the pnrcliaser unJer it, while the decree and the sale and conveyance remain in force. 4. Where a defendant has filed an answer to a bill to foreclose, a pur- chaser at a siierift's sale under tlie decree, is presumed to have purchased upon the faith of that answer, and in reliance upon the truth of its state- ments. Such defendant is estopped from denying the truth of the answer, to the prejudice of the purchaser's title. 5. An injunction will not be continued for the mere purpose of restrain- ing a naked trespass, or for the purpose of quieting the possession of a romplainant who shows no title to the premises in dispute. 6. The filing of exceptions to the answer constitutes no objection to the dissolution of an injunction, if the equity of the bill upon which the in- junction rests has been fully answered. The complainant, by her bill, alleges that her husband, Hugh McGee, in his lifetime, was seized in fee of a parcel of land in Jersey City, which, on a map of the lands of Cor- nelius Van Vorst, tiled in the clerk's office of the county of Hudson, on the 24th of April, 1847, was known and distin- guished as lots number twelve and thirteen, on block sixty- three, fronting on the northerly side of Railroad avenue, and being fifty feet wide in front and rear, subject to a mortgage given by McGee and wife to Cornelius Van Vorst, to secure the sum of $1175, a part of the purchase money of said premises. That, being so seized, McGee in his lifetime built two houses on the land, which, together, covered the entire front of fifty feet on the avenue. That the westerly house is twenty-eight feet in width, and covers the whole front of lot number twelve, and three feet of lot number thirteen ; and that the easterly house, on lot number thirteen, is only twen- ty-two feet in width. That the houses are three stories high, and have a party wall between ihem, from the foundation to the roof. That McGee, during his life, occupied the westerly house as his mansion or homestead, the other house being occupied by tenants. He died on the 12th of December, 1861. By his will he devised the house and lot on Railroad avenue, nunibered two hundred and twenty, to the complain- ant during her natural life, in lieu of dower, and on her death, to his daughter Hannah ; and the house and lot nura- 464 CASES IN CHANCERY. McGee v. Smith. bered two hundred and eighteen, to his son, Hugh McGee the house and lot devised to the complainant, being the house and lot above described as the homestead of Hugh McGee, consisting of lot number twelve, and a part of lot number thirteen. After the death of her husband, the complainant continued in the occupation of the whole of the house and premises devised to her by the will of her husband. A bill having been filed in this court for the foreclosure of the mortgage upon the said premises, given by McGee to Van Vorst, a decree was made, by which it was directed that the house and lot devised to Hugh McGee, being lot number two hundred and eighteen, should be first sold to satisfy the mortgage, and that the remainder, being lot number two hundred and twenty, which was devised to the complainant for life, after the termination of the life estate, should be next sold for that purpose. At the sheriff's sale under the decree, Smith became the purchaser of lot number two hundred and eighteen. No sale was made of the complainant's life inter- est in lot number two hundred and twenty. The bill charges that the defendant claims title, by virtue of his purchase, to twenty-five feet front, including three feet upon which the complainant's house stands, and has entered upon the premises for the purpose of changing the partition wall between the houses ; and prays that the complainant may be quieted in her possession, and the defendant restrained from destroying the party wall, or doing other injury to the complainant's premises, or taking possession of any part thereof by force. An injunction issued pursuant to the prayer of the bill. The defendant, having answered, asks a dissolution of the injunction. McClelland, for the defendant, in support of the motion. The answer meets every material averment. The injunction may be dissolved, though the answer do not fully meet the averments of the bill. Quachenbusli v. Van Biper, Saxton 476, 488. OCTOBER TERM, 1863. 465 McGee v. Smith. Ransom, for the complainant, contra. The answer is not fully responsive to the averments of the bill. A court of equity will restrain irreparable mischief until right be decided at law. The Chancellor. The controversy depends entirely upon the title which Smith acquired by his purchase at the sheriff's sale, under the decree of foreclosure. That right, whatever it may be, is paramount to any title which the complainant could acquire under the will of her husband. The complainant, by her bill, alleges that the decree of fore- closure directed that lot number two hundred and eighteen, being the lot devised to Hugh McGee, the son of the testa- tor, shouhl be first sold, and that Smith became the purchaser of that lot. Tiiis fact is denied by the answer. It appeals that the decree in the foreclosure suit makes no mention of the numbers two hundred and eighteen or two hundred and twenty, which are the city numbers used to designate the houses on the avenue, but describes the lots as " numbers twelve and thirteen, on block sixty-three, as they are known ?nd designated on Van Vorst's map." Those lots are de- scribed in the mortgage and in the bill to foreclose, as being each twenty-five feet in width. The sale and conveyance by the sheriff to Smitii, was made in accordance with the origi- nal division and description of the lots on the Van Vorst map, and not in pursuance of any subsequent arrangement of the lots made by McGee, and recognized in his will. In the original division of the lots on the Van Vorst map, and in the mortgage from McGee to Van Vorst, under which the foreclosure and sale was made, lot number thirteen, which was sold to Smith, is described as being twenty-five feet iu width. That is the description of the lot in the bill to fore- close, and in the writ of fieri facias, by virtue of which the sale was made. Whether the width of the lot is stated in the decree or not, is immaterial. It is usual to designate the premises in the decree by reference to the bill, not by precise 466 CASES IN CHANCERY. McGee v. Smith. description. Catharine McGee, the complainant, was a party to the foreclosure suit, and is bound by it. While that decree, and the sale and conveyance under it, remain in force, she cannot contest the title of the purchaser. Catharine McGee was not only a party to the foreclosure suit, and bound by the decree, but she filed an answer, claim- ing to have her life estate in the lot devised to her by her husband, recognized and protected. By her answer she avers that the house and lot devised to her as lot number two hun- dred and twenty, on Railroad avenue, is the same house and lot described in the Van Vorst mortgage as lot number twelve, and that the house and lot devised to Hugh McGee, as lot number two hundred and eighteen, on Railroad avenue, is the same house and lot mentioned and described in the Van Vorst mortgage as lot number thirteen. She now asks re- lief upon the ground that the answer is erroneous in stating that those lots are identical, and that, in fact, the lot devised to her is larger than lot number twelve, and that the lot con- veyed to Smith is less than lot number thirteen. Whether the lots are, in fact, identical, is a disputed fact in this case. But admitting that they are different, and that the allegation in the answer, of their identity, is a mistake, Catharine Mc- Gee cannot, in equity, be relieved against the title of Smith, on the ground of that mistake. She is estopped from deny- ing the truth of her answer. If there were no other ground of defence, Smith would be presumed, as against the claim of Catharine McGee, to have purchased upon the faith of her answer, and in reliance upon the truth of its statements. She cannot gainsay her own statements to the prejudice of his title. The injunction cannot be continued for the mere purpose of restraining a naked trespass, nor for the purpose of quiet- ing the possession of the complainant, where she shows no right to the premises in dispute. 2 Eden on Inj. 390. The filing of exceptions to the answer constitutes no ob- jection to the dissolution of the injunction, if the equity of the bill upon which the injunction rests has been fully an- OCTOBER TERM, 18G3. 467 McGee v. Smith. svvered. 1 Barb. Ch. Pr. 642; Livingdon v. Livingston, 4 Paige 111 ; Robert v. Hodges, ante, p. 299. The exceptions, so far as they relate to the points of the case upon which the injunction rests, are formal, rather than substantial. It is obvious that the case made by the bill, i? not in accordance with the truth and facts as they really exist, and that all the complainant's equity is fully denied by the answer. The injunction must be dissolved. C^SES ADJUDGED IN THE COURT OF CHANCERY or THE STATE OF NEW JERSEY, FEBRUARY TERM, 1864. "William D. Giveans vs. William McMurtey and others. 1. A party who comes into a court of equity for relief against a judg- ment or other security, on the ground of usury, will only be relieved upon paying what is really due upon such security. 2. Where a party, as security for money loaned, has taken an assign- ment of a pre-existing judgment against the borrower, and, as a further security for the same debt, has also taken a bond and mortgage ; a decree of this court declaring the bond and moi'tgage usurious and void, will not avail the debtor in a bill for relief to have the judgment declared satisfied of record, the assignment being untainted with usury. 3. The evidence of a co-defendant is not rendered incompetent by the fact that no order was made for his examination. Since the act of 1859, {Nix. Dig. 928, | 34,) removing the dipqualification of interest in a witness, as a party or otherwise, no order for his examination is necessary. 4. Nor is it any objection to the competency of a co-defendant to tes- tify, that he has not answered the bill, but has suifered a decree pro con- fesso against him. The complainant may, at his discretion, require him to answer. But if he do not, the defendant, by failing to answer, cannot de- prive his co-defendant of his testimony, or disqualify himself as a witness in th.e cause, McCarter, for complainant. Two points are made by the original bill. 468 FEBRUARY TERM, 1864. 469 Giveans v. McMurtry et al. 1. That the judgments are kept on foot after being paid, without the consent of the defendant in execution. 2. That they were taken as security for an usurious debt. Tlie answer of McMurtry denies that the judgments M'ere satisfied, and alleges that they were taken as security for the debt for which the mortgage was given, but not as collateral to the mortgage. The su})plemental bill sets up that the bond and mortgage were, by a decree of this court, adjudged null and void, and claims the benefit of such proceedings. Neither original nor supplemental bill rests the complain- ant's claim to relief on the ground of usury. That fact is stated, but the decree is not prayed on that ground. The evidence shows that in fact, the claim of the plaintiff in exe- cution was satisfied in full ; that the mortgage was given be- fore the assignment was made ; and that the judgments ought to have been satisfied of record. No assignment was agreed for, or intended. If the judgments were assigned in pursuance of the under- standing of the parties, it was a mere collateral security to the mortgage. That security has been pronounced null and void. J. Whitehead, for defendant. The complainant's whole claim rests upon a charge of usury in the mortgage debt, and on the ground that the assignnaent was made without the complainant's knowledge or consent. The consent of tiie defendant in execution was not neces- sary to a valid assignment of the judgment. 1. Did McMurtry obtain the assignment in good faith, as security for money advanced ? No fraud is charged. The facts, that the money was ob- tained from McMurtry, that it was paid directly to the plain- tiff in execution, and that the judgment was assigned as a security for the money so advanced, are clearly established by the evidence. 470 CASES IN CHANCERY. Giveaiis v. McMurtry et al. 2. The assignment of the judgments was taken as the pri- mary security for the money so advanced. There was no search for encumbrances upon the property, prior to the date of the mortgage. If, therefore, the mort- gage is usurious, the assignment of the judgment is in no wise tainted with the usury. A prior existing debt, untainted with usury, is not affected by the existence of usury in any subsequent contract. Gray V. Fowler, 1 H. Black. 463 ; Fearsall v. Kingsland, 3 Edw. Ch. R. 195 ; Bush v. Livingston, 2 Caiyies' Cases in Error, 6^ ; Donnington v. Meeker, 3 Stockt. 362. The complainant, who asks equity, must do equity before relief will be granted. Fanning v. Dunliam, 5 Johns. Ch. B. 122; 3Iorga7i v. Schermerhorn, 1 Paige 544 ; Beeves v. Cooper, 1 Beas. 223, 498 ; Miller v. Ford, Saxton 361 ; Fitz- roy V. Gwillim, 1 Burn/. & East 153. The Chancellor. Iu the year 1855, a judgment at law and a decree iu equity were recovered against the complain- ant, Giveans, amounting to over $3200, upon which executions were issued and placed in the hands of the sheriff of Sussex. On the twenty-fifth of February, 1856, the complainant pro- cured for the defendant, McMurtry, through the agency of David Ryerson, the sum of $3000, which, together with the balance over that amount, due on the judgments, were paid to the respective plaintiffs, and the sheriff's execution fees were satisfied. On the same day a bond and mortgage for $3000, payable iu three years, were given by Giveans to McMurtry, and by assignments of even date, the judgments were assigned to him. In October, 1858, the real estate of the defendant in execution was advertised for sale by the sheriff, at the instance of McMurtry, who claimed to be the assignee of the judgments, in order to obtain satisfaction of the sum of $3000 advanced by him. Giveans thereupon filed his bill iu this court, alleging that McMurtry claimed to hold by assignment, the judgments as collateral security for the payment of the bond and mortgage ; that no such as- FEBRUARY TERM, 1864. 471 Giveans v. McMurtry et al. signments had been made, or if made, they were without the consent and against the will of the complainant ; and that the judgments were paid and satisfied in full by the defend- ant in execution. The bill also charges, that if the judgments and executions were assigned to McMurtry, the property levied on could not be sold until the mortgage became due. It also alleges that the loan was made at a usurious rate of interest, being in reality the money, not of McMurtry but of Ryerson, who had charged and received §300 for making the loan. The bill prays that the judgments may be satisfied of record, and that the assignments, if any exist, may be de- livered up to be cancelled. Tiie defendant, McMurtry, by his answer, claims that the loan was made, and the money advanced by him, at the in- stance of Ryerson, who acted on behalf of Giveans, upon the security as well of the judgments as of the bond and mortgage; that the amount due upon the judgments and ex- ecutions was paid, not by Giveans, but by McMurtry, directly to the plaintiffs in execution; and that the judgments and executions were never satisfied, nor intended so to be, but were assigned by the plaintiffs in execution to McMurtry, in pursuance of an agreement with Giveans, as security for the loan of §3000 made to him by McMurtry. That the judgments and executions were assigned to Mc- Murtry is fully established. The deeds of assignment exe- cuted by the plaintiflfe, are produced in evidence, and their formal execution proved by the subscribing witnesses. No fraud or circumvention is alleged or shown in the procure- ment of these assiu;nments. The alleo-ation of the bill is that the judgments were paid and satisfied in full by the complainant, and that the assignments were made without his consent and against his will. The substance of the alle- gation is, that the loan by McMurtry was made upon the security of the bond and mortgage alone, and that the judg- ments were in fact satisfied, and ought to have been can- celled. 472 CASES IN CHANCERY. Giveans v. McMurtry et al. The only evidence in support of this allegation is that of the complainant himself, who testifies that he heard nothing of the assignments, and never agreed to them ; that the loan in fact, was made solely upon the security of the bond and mortgage. On the other hand, Mr. Ryerson, by whose agency the loan was procured, testifies that McMurtry was to have as security for his money, an assignment of the judg- ments, and a mortgage from the Messrs. Giveans. They both agreed to give him the security. The circumstances attend- ing the transaction, strongly corroborate the testimony of Mr. Ryerson. The $3000 loaned by McMurtry was not paid to Giveans, nor were the judgments paid, by him. He paid the sheriff's fees, and reduced the amount due on the judgments to $3000. That sum was paid by Ryerson for McMurtry, into the hands of the attorney of the plaintiffs in execution, upon the express stipulation that the judgments should be assigned to McMurtry. Mr. Thompson, the attor- ney, testifies that Mr. Ryerson and the Messrs. Giveans came together to his office, and stated that the judgments were to be assigned to McMurtry. The assignments were then drawn, and in a few days returned executed. The judgments were assigned as security for the money. They were ar- ranged to be assigned, and the assignments were drawn at the same time the mortgage was executed. The assignments bear even date with the bond and mortgage. Giveans was present when Ryerson stated that the judgments were to be assigned, and when the stipulation to procure the assign- ment was executed. The attorney of the plaintiffs in execu- tion, neither drew nor acknowledged the mortgage. The only jiretence for the parties going to his office, must have been to ensure the assignment of the judgments. The money was paid into his hands upon his stipulating to have the as- signments executed by his clients. This was before the bond and mortgage were executed. The evidence i^ plenary that the assignments were made, and the judgments were to be kept alive as security for the money advanced by McMurtry. FEBRUARY TERM, 1864. 473 Giveans v. McMurlry et al. Another ground of relief suggested in the original bill is, that the loan from McMurtry to Giveans was usurious. After the commencement of the suit, a bill was filed for the foreclosure of the bond and mortgage, which were given co- temporaneously with the assignments of the judgments to se- cure the loan. Giveans, by his answer, set up usury in the mortgage as a defence to the bill. The mortgage was decreed to be usurious, and the bill was dismissed. The complainant thereupon filed a supplemental bill in this cause, setting up that decree as ground of relief in this cause. Irrespective of the decree in the foreclosure suit, it is clear that the complainant is not entitled to relief against the judgments on the ground of usury. A complainant who comes to a court of equity for relief against a judgment or other security on the ground of usury, will not be relieved, unless upon the equitable terms of paying what is really due to the defendant. Tar/lor v. Bell, 2 Vei'n. 171 ; Scott v. Kesbit, 2 Bro. Cli. i?. 641 ; Henhle v. Royal Exchange Ass. Co., 1 Vesey, sen. 320 ; Fanning v. Dunham, 5 Johns. Ch. M. 122; Miller v. Ford, Saxton 364; Ware v. Thompson's Adm'rs, 2 Beas. 67. The equity cases, says Chancellor Kent, speak one uniform language, and I do not know of a case in which relief has ever been afforded to a plaintiff seeking relief against usury, by bill, upon any other terms. In 1856, the complainant's property being about to be sold under executions, McMurtry advanced $3000 for the relief of the complainant, and took an assignment of the judgments and executions, as a security for the repayment of the loan. The complainant has since held and enjoyed his property without the return of any portion of the principal or interest. The judgments remain unsatisfied. If this court restrain the defendant from proceeding at law on the ground of usury, it will only be upon the complainants pav- ing the amount of principal and interest bona fide due to McMurtry. That is all that he claims to recover. He is entitled to have from the complainants the sum advanced, 474 CASES IX CHANCERY. Giveans v. McMurtry et al. with interest. If the case stood upon the original bill and answer, tliere would be no room to question the application of the principle, and that the coni[)lainant could have no relief. The case is in no wise altered by the fact, that the con- tract for the loan of the money has, by a decree of this court, been pronounced usurious, and the mortgage given as secu- rity, declared void. Nor can the conjplainant escape the application of the principle, by a general allegation that the court, by its decree, pronoujiced the contract void, without disclosing by his pleading that the decree was made solely upon the ground of usury. It appears by the decree that the loan was pronounced usurious, and the mortgage security therefore void. The decree has, in fact, no reference whatever to the charge of usury set up in the present bill. That charge is utterly disproved by the evidence. The decree declaring that the bond and mortgage are usurious, upon one ground, cannot establish the fact of usury against the judgments, on another and different ground. It is not pretended that these judg- ments are usurious. They are admitted to have been valid and subsisting judgments. The complainant's ground of complaint is, that they were paiid and satisfied. That charge has been disproved. They were duly assigned for their full value, by the plaintiffs in the judgments, to McMurtry, the defendant. They are security only for the amount actually advanced by McMurtry, and remaining due on the judgments, with legal interest. No usurious interest has been, or can be, recovered upon them. The assignee of the judgments seeks to enforce them, not by virtue of any usurious contract made with Giveans, the defendant in execution, but by virtue of a contract with the plaintiffs. So far as this case is concerned, the fact of usury is not established. But admitting the ustuy to have been fully proved, the complainant, in e(]uity, is bound to pay the prin- cipal and interest really and bo)ia fide due u{)on the judg- ment. Having made no such offer, ho is entitled to no FEBRUARY TERM, 1864. 475 Hudson V. Trenton Locomotive and Machine Manufacturing Co. relief at the hands of this court. A party asking equity must do equity. The evidence of a co-defendant is not rendered incompe- tent by the fact that no order was made for his examination. When witnesses were disqualified on the ground of interest, a defendant havMug either no interest in tiie event of the suit, or not being interested in the whole of the matters em- braced in the suit, might have been examined as to those matters in which he had no interest. This was done by or- der of the court. 2 DanieWs Ck Pr. 1036, 1038, 1042. But since the act of 1859 has removed tiie disqualification of interest in the witness, as a party or otherwise, no order for his examination has been deemed necessary. The same practice was adopted under the act of 1855, though the rule of July 1st, 1858, required that if the plaintiff or petitioner desired to avail himself of the benefit of the second section of that act, he should be examined before any other witness should be examined in the cause, and withiu twenty days after issue joined. Nor is it any objection to the competency of a co-defendant to testify, that he has not answered the bill, but has suffered a decree pro confesso against him. The complainant may, at his discretion, require him to answer. But if he do not, the defendant, by failing to answer, cannot deprive his co- defeudaut of his testimony, or disqualify himself as a wit ness in the cause. The bill must be dismissed. Affirmed, 2 C. E. Or. 510. Nicholas C. Hudsox vh. The Trenton LocoiioTiVE and Machine Manufacturing Company. 1. Upon a bill for an account, tlie only materiiJ evidence upon the original hearing, is that whicli conduces to prove the complainant's right to an account. The ordinary decree is that an account shall be taken. Evidence as to the particular items of the account is irrelevant, and, in strictness, inadmissible at this stage of the cause. 476 CASES IN CHANCERY. Hudson V. Trenton Locomotive and Machine Manufacturing Co. 2. As a general rule, the court will not, at the original hearing, examine or decide whether particular items of the account shall or shall not be allowed. 3. Tlie court mu?t, it would seem, settle the construction and efFecl of agreements between the parties, by which their mutual dealings were regu- lated, and by which, consequently, the account must be controlled. 4. The court will give special directions to the master as to the manner of taking the account, and the principles by wliich he should be governed in taking it. 5. The decree must direct to what matters the account sliall extend, and in decreeing a general account, special directions will be rendered proper and necessary by the particular circumstances of the case. 6. Where the evidence has been taken on bo*h sides before the hearing, without objection, it may be used by the court, so far as may be necessary, in giving directions. J, S. Aitkin, for complainant. The bill is for an account under a written contract. It involves the construction of the contract, the value of the work done and services rendered, and asks that the de- fendant may be decreed to pay the amount found due, and for such other relief as the complainant maybe entitled to. The testimony has been taken in full by both parties, and the case is now ready for final decree. Beasley, for defendants. The only order that can now be made is for an account, and to that we do not object. 2 DanieWs Ch. Pr. 997 ; Ciirsus Cancel. 341 ; Greslej/s Eq. Ev. 168. The Chancellor. Upon a bill for an account, the only material evidence upon the original hearing is that which conduces to prove the complainant's right to an account. The ordinary decree is that an account shall be taken. Evi- dence-as to the particular items of the account is irrelevant at this stage of the cause. 2 DanieWs Ch. Pr. 997 ; Gres- ley's Eq. Ev. 168; Walker v. Woodward, 1 Russ. 110; Laio V. Hunter, Ibid. 100 ; Tomlin v. Tomlin, 1 Hare 236 ; FEBRUARY TERM, ]864. 477 Hudson V. Trenton Locomotive and Machine Manufacturing Co. Seaton's Decrees 42, 45 ; Duboxirg de St. Colombe's Heirs v. The United States, 7 Peters 626. These cases settle the practice that the court will not, at the original hearing, as a general rule, examine or decide whether particular items of the account shall or shall not be allowed, and that evidence for that pur[)Ose, in strictness, is inadmissible. But the principle is not of universal application, and must depend in some measure upon the nature of the jileadings. By the ancient practice special directions were usual in decrees for account. Bacon's Ordinances 50 ; Bewnes' Orders in Chan. 23, 80 ; Tothill's Proceed. 48. Instances are not wanting, w'here the decree ordering tlie account to be taken, has directed the allowance of particular items. Thus, in Smith v. Wilkinson, the master was directed, in taking the account, to charge the defendant with the sum of £8000, borrowed by him from the testator's estate. 2 New- land's Ch. Pr. 335 ; Seaton's Decrees 46. And in Consequa v. Fanning, 3 Johns. Ch. R. 590, the decree contains specific directions as to various items with which the defendants should be charged by the master in taking the account. The more modern cases would seem to exclude these direc- tions as to what items of the account should or should not be allowed ; but they do not exclude special directions to the- master as to the manner of taking the account, or the prin-. ciples by which he should be governed in taking it. The- court must, it should seem, settle the constructit)n and efff^ct of agreements between the parties, by which their rantuali dealings were regulated, and by which, consequenfelly,, tbiO account must be controlled. Thus in Sharp v. 3Iorroui, 6 Monroe 300, it is declaFct?, that in referring partnership accounts to a commissioner,, the court should settle the construction of the articles of partner- siiip, and decide what kind of accounts come within. the part- n'^rshii). and lay down the principles by which tl^e.GOOiniis- sioner should be governed. .Vol. I. 2 G 478 CASES IN CHANCERY. Fluke V. Ex'rs of Fluke et al. And in Remsen v. JRemsen, 2 Johns. Ch. R. 501, Chan- cellor Kent lays it down as a general rule, that orders of re- ference should specify the principles on which the accounts are to be taken, or the inquiry proceed, as far as the court shall have decided thereon. The decree must direct to what matters the account shall extend. And in decreeing a general account, special direc- tions will be rendered proper and necessary by the particular circumstances of the case. The principle is constantly re- cognized and acted upon. 2 Smith's Ch. Pr. H2 ; Hoffman's Ch. Pr. {Appendix) 169, No. 202 ; Izard v. Bodine, 1 Stoclt. 311. If either of the points upon which the complainant now asks the determination of the court, involves the legal con- struction of the contract between the parties, by which the statement of the account will be materially aifecteJ, or the proper mode of stating the account, or the subject to which the investigation shall extend, it may be proper that the direction should now be given. It may save unnecessary expense and delay in the subsequent stages of the cause. There can be no objection on the ground of the incom- petency of the testimony. The evidence upon both sides has been taken without objection. It is now before the court and may be used, so far as may be necessary, in giving any direction proper to be given at this stage of the cause. John Fluke vs. The Executors of Fluke and others. 1. A direction by a testator "that all the rest and residue of his estate of what kind soever there might be at the time of his death," should be con- verted into money by his executors, &c., extends to and inclades such real estate as he may have acquired after the making of the will, and such land is subject to the power of sale conferred upon the executors. 2. Until the sale be made, the legal title descends to and vests in the heirs-at-law of the testator, as tenants in common. FEBRUARY TERM, 1864. 479 Fluke V. Ex'rs of Fluke et al. 3. Tlie heir-at-law takes the legal title charged with the trusts created by the will. Equity will not interfere with the execution of the trusts by the executors. It regards as actually performed, tliat which is directed to be done. 4. Lands directed by the testator to be sold and converted into money, and the proceeds distributed either amo.ig the heirs or other legatees, is regarded as a gift of money. 5. AVherethe whole beneficial interest in the land directed to be conver- ted into money, belongs to the person or persons for whose use it is given, equity will not compel the trustee to execute the trust against the wishea of the cestui que trust, but will permit him to take the land, if he elect to do 60 beforfe the conversion has actually been made. But where there are several cestui que trusts taking different interests under the will from what they would do as heirs-at-law, there is no case for the application of the doctrine of election, and the executor must perform the trust created by the will. Leport, for complainant. Thompson, for defendants. The Chancellor. The bill is filed for the partition of a tract of land in the connty of Morris, of which John Fluke, the father of the complainant, died seized. The complainant claims title to one-fifth of the tract, as one of the heirs-at-law of his father. The father died on the 1st of August, 1862, leaving a last will and testament, duly executed to pass real estate. By his will, bearing date on the 15th day of December, 1856, and by a codicil thereto, the testator, after certain specific bequests, ordered and di- rected, that "all the rest and residue of his estate, of what kind soever there might be at the time of his death," should be converted into money by his executors, and one-fifth part thereof paid to each of his four children then living, and the remaining one-fifth to the four children of a deceased son of the testator, to be divided between them in unequal shares, viz. one equal half thereof to the grandson, and the other half equally between three grand-daughters. The land in question was conveyed to the testator on the 14th of October, 1858, after the date of the will and of the codicil. 480 CASES IN CHANCERY. Fluke V. Ex'rs of Fluke et al. Under the act of 1851, (Nix. Dig., p. 917, § 3,) real estate acquired by a testator after tlie making of his will, is subject to the disposition made by the will, either by devise or by poM'er of sale. The testamentary disposition extends to all the estate of whatever kind which the testator might own at the time of his death, and necessarily includes the land in question. The rights of the complainant are, therefore, in no wise affected by the fact that the land was acquired by the testator after the making of his Mill. The will contains no actual dis})osition of the lands, but confers upon the executors a naked power of sale. Until the gale be made, the legal title descends to, and vests in the heirs-at-law of the testator. The complainant is, therefore, seized in fee, as tenant in common with the other heirs of his father, of the one equal fifth part of the land in question. Herbert v. Executor of Tuthill, Saxton 141 ; Bergen v. Ben- nett, 1 Caiyies' Cases in Error 16 ; Gest v. Flock, 1 Green'' s Ch. R. 108, 113. But the heir-at-law takes the legal title charged with the trusts created by the will. The land is directed to be con- verted into money by the executors, and the proceeds to be distributed in the mode designated by the testator. Equity will not interfere with the execution of the trusts by tiie executors. It regards as actually performed that which is directed to be done. Lands directed by the testator to be 8old and converted into money, and the proceeds distributed either among the heirs or other legatees, is regarded as a gift of money. Fletcher v. Aslihurner, 1 Bro. Ch. Cases 497 ; Craig v. Leslie, 3 Wheaton 563. It is true that where the whole beneficial interest in the. land thus directed to be converted, belongs to the person or persons for whose use it is given, equity will not compel the trustee to execute the trust against the wishes of the cestui que trust, but will permit him to take the land, if he elect to do so before the conversion has actually been made. Gest v. Flock, \ Greenes Ch. R. 115; Craig v. Leslie, Z Wheaton FEBRUARY TERM, 1864. 481 Demarest v. Berry. 563 ; Osgood v. Franklin, 2 Johns. Ch. R. 21 ; Story's Eq. Jur., § 793. But the whole beneficial interest in the land sought to be sold, is not in the complainant. The other cestui que trusts are interested in the due execution of the trusts created by the will. Tiiey have not joined in the prayer for partition. The devisees of one share are infants. They take, moreover, as legatees, different interests under the will, from what they would do as heirs-at-luw. It is not a case, therefore, for the application of the doctrine of election ; nor does the com- plainant rest his case upon this ground. As the facts are all ailmitted upon the face of the bill and answer, no benefit can result from a reference to a master. The bill must be dismissed. Cited in Romaine v. Hendrickson, 9 C. E. Gr. 237. David M. Demarest and Nicholas H. Jerolemax vs. D^wiD M. Berry and others. 1. If a mortgagee in possession, permits the mortgagor to take tlie pro- fits of the mortgaged premises, the mortgagee will be charged, in favor of subsequent encumbrancers, with all tiie profits he might have received. So, if the mortgagee refuses to enter, but suffers tlie mortgagor to take the profits and to protect liis possession by means of the mortgage. 2. The principle upon which the court acts is, that if the mortgagee be in possession, or act mala fide in regard to subsequent encumbrancers, lie will be charged not only with all profits received, but with all which, with- out fraud or wilful default, he might have received from the mortgaged premises. 3. Where the mortgagee is not in actual possession by himself or his tenant, and has received no part of the profits, nor used his mortgage to interfere with the claims of subsequent encumbrancers, or to protect the possession of the mortgagor, he is not chargeable with any part of the profits. 4. A suit for foreclosure upon each of two mortgages covering the same premises, both of which were in the hands of the complainant when the first bill was filed, is unnecessary and oppressive, and costs will be allowed but in one suit. 5. But where the second bill was rendered necessary by the fact (discov- ered after the filing of the first) that the mortgage, upon which the first 482 CASES IN CHANCERY. Demarest v. Berry. bill was filed, covered a part only of the premises included in the other mortgage, proceedings in the first suit will be stayed, and the second suit alone proceed to decree. Ogden, for complainants. Cutler, for defendants. The Chancellor. It was admitted upon the argument, that there is an entire failure of evidence to support the alle- gation of the answer, that one of the complainants' mortga- ges is without consideration and invalid, as against a subse- quent judgment creditor. It is also admitted that the objec- tion to the bill for want of proper parties, is not well founded. The only remaining objection relates to the mode of taking the account. The first mortgage upon the premises was given to the Mutual Benefit Life Insurance Company ;• the second, to the complainants. Both mortgages were due, prior to June, 1862. In August, 1862, the personal property of the mort- gagor was sold under executions at law, and purchased almost exclusively by or in behalf of Demarest, one of the complain- ants. On the twenty-sixth of January, 1863, tiie mortgaged premises were also sold under executions at law, and pur- chased by A. \y. Cutler, one of the judgment creditors. Berry, the mortgagor, continued to occupy the mortgaged premises, and to use and enjoy thereon, the personal property bought by Demarest, from August, 1862, till June, 1863, when the personal property was sold at auction, and the mort- gagor removed from the premises. The judgment creditor now insists tiiat the complainants, as mortgagees in posses- sion, are chargeable with the rent of the premises from August, 1862, or from January, 1863, when the judgment creditor acquired title to the land. If a mortgagee in possession permits the mortgagor to take the profits of the mortgaged premises, the mortgagee will be charged in favor of subsequent encumbrancers, with FEBRUARY TERM, 1864. 483 Demarest v. Berry. all the profits he might have received. Chppr'mg v. Cooker 1 Vern. 270 ; Bentham v. Ilalncourt, Pree. in Chan. 30. So if the mortgagee refuses to enter, but suffers the mort- gagor to take the profits, aiiil to protect liis possession by means of the mortgage. Chapman v. Tanner, 1 Vern. 267 ; Dux Bucks V. Gayer, Ibid. 257. The principle upon which the court acts is, that if the mortgagee be in possession, or act mala fide in regard to subsequent encumbrancers, he will be charged not only with all profits receivetl, but with all which, without fraud or wil- ful default, he might have received from the mortgaged premises. Laftm v. Swift, 2 Sch. & Lef. 655 ; Harvey v. TiUuU, Jacob & W, E, 203 ; Beriiey. v. SciveU, Ibid. 630 ; Coote on Mortgriges 557 ; 1 Powell on Mortgages {by Coven- try) 291, note D; 3 Ibid. 949, 953* The mortgagee was not in tlie. actual possession of the premises. He received no rants, or profits therefrom. The mortgagor remained in tlie, actual possession and enjoyment of tte piiemiises, until Jj,iine, 1863. The facts relied upon to charge .tla»e mortgage^ with the profits, are, that he permitted the fiiOAifgagor to rpmain in possession, using the personal l^raperty of the lUQt'tgagee, and to carry on the business of imaiksng cider and. distilling spirits, witi^ the assistance of the maortgagee, aud to some exte'at in hfe name. The evidence ^oes not show, that the mortgagor acted as the agent or ten- ant of the mortgagee, or that he in any way attorned to him, or recognized his right to the possession of the premises.. Nor was the mortgage used .to protect the possessitin of the- mortgagor, or to obstruct a recovery by the judgment credi- itor. Mere laches in the euforoeraent of his demand, is ao gvound to deprive the mortgagee of his iuterosfc. The conduct of the mortgagee is recoacilallo vylfclx good faitli. It was confined within the limits of his legal right, and may have been prompted by a desire to relieve the lie^. cessities of the mortgagor^ 3:'uttiag upon it ti'.e most unfa- vorable construction, its wn )x\^ consisted in protecting, the- personal property of tlio r .iort««^agor from levy and sale :fj)5^ 484 CASES IN CHANCERY. Norcom v. Rogers. the satisfaction of the claims of judgruent cvcditors. In Charles v. Dunbar, 4 31elG. 493, it was held (hat where a formal ontiy by the mortgagee, was to aid the raor(<^«go»' in prolcctiiig the produce of the farm from sittachn'oiit by other creditors, it did not affect the question of the mortga- gee's liability for profits. The mortgagee not being in actual possession by himself, or his tenant, having received no part of the profits, and not having used his mortgage to interfere with tJie claim of subsequent encumbrancers, or to protect the possession of the mortgagor, is not chargeable with any part of the profits. The account will be stated accordingly. The complainants have filed two bills of foreclosure upon two mortgages, both of which were in their hands when the first bill was filed. If both mortgages cover the same prem- ises, two suits were unnecessary and oppressive, and the complainants will be allowed costs but in one suit. It is understood that the filing of the second bill was rendered necessary, by the fact that the mortgage upon which the first bill was filed, covered a part only of the premises included in the other mortgage; a circumstance which escaped attention at the time of filing the first bill. If this be so, proceedings in the first suit should be stayed, and the second suit alone proceed to decree. The question of costs will be reserved. There must be an order of reference, to ascertain the amount due upon the complainants' mortgages. Frederick Norcom vs. Edward Y. Rogers. 1. A lunatic can sue only by his committee or guardian, who is respon- .sible for the conduct of the suit, or by the Attorney General or next friend, where the interests of the guardian clash with those of the lunatic. 2. If a complainant appear upon the face of the bill to be a lunatic, and no next friend or committee is named in the bill, the objection may be raised by demurrer, or by motion to take the bill from the files. FEBRUARY TERM, 1864. 485 Norcorn v. Rogers. 3. A bill exhibited by a person of unsound mind should be taken from the files. 4. The bill in this cause having been filed by a limatic, and the defend- ant having demurred, leave was given to withdraw the demurrer, and bill ordered to be taken from the files* Kingman, for complainant. Rogers, pro se. The Chancellor. The bill in this case was improvi- dently filed. It purports to be exhibited by a party who haa been found to be a lunatic, in his own name, against his guardian. The commission has not been superseded, and it is not suggested that any step has been taken to avoid the inquisition. So far as appears by the bill, it is now standing and in fidl force. A lunatic sues only by his committee or guardian, who is responsible for the conduct of the suit, or by the Attorney General or next friend, where the interests of the guardian clash with those of the lunatic. 1 DanieWs Ch. Pr. 8, 108 ; Story's Eq. PL, § 64, 65, note; Cooper's Eq. PI, 32 ; Mitford on PL {by Jeremy) 29. The right of appearing and prosecuting, or defending, any action in any of the courts of this state, in person, or by soli- citor or attorney, is expressly limited by statute to persons of full age and sound memory. Nix. I)ig. 654, § 1. A reference to the contents of the bill in this case manifests the propriety of the ride, and the duty of strictly enforcing it, as well from regard to the interests of the complainant, as to the rights of the defendant. The objection, if it appear upon the face of the bill, may be raised by demurrer, or by motion to take the bill from the files. 2 Barbour's Ch. Pr. 224; Wartnaby v. Wartnaby, Jacob's R. 377. A bill exhibited by a person of unsound mind, must have been filed without authority of law. It should, therefore, betaken from the files. This course saves expense and avoids 486 CASES IN CHANCERY. * Howard v. Ex'rs of Howard. the necessity of enrolling the decree, and of thus spreading scandalous or impertinent matter upon the record. Leave is given to withdraw the demurrer aud the bill will be ordered to be taken from the files. Clarissa Howard vs. The Executors of William E. Howard and others. 1. Where there is a general bequest for life with remainder over, the whole property must be sold and converted into money by tlie executor, tlie proceeds invested, and the interest only paid to the legatee for life. The rule prevails, except there is an indication of an intention on the part of the testator, that the legatee for life .should receive the property be- queathed. 2. The circumstance that a bequest of general personal estate is in the game sentence with a devise of the real, will not make the legacy specific. 3. The well settled rule in equity is, that where it appears that there la danger that the principal of the legacy will be wasted or lost, the eourfc will protect the interest of the legatee in remainder, by compelling the legatee for life to give security for the safe return of the principal. 4. Under like circumstances, the executor himself will be required to give security for the safety of the fund. Tuttle, for complainant. * A. S. Pennington, for defendants. The Chancellor. William E. Howard, in and by his last will and testament, after sundry devises and bequests, including specific legacies to his wife, gave the residue of his estate, real and personal, to his wife during the remainder of her natural life ; and upon her death, he gave the same to his four sisters and other legatees. The testator died in 1829. The executors possessed them- selves of his estate, and in 1861, exhibited an account for settlement, by which it appears that -after the payment of FEBRUARY TERM, 1864. 487 Howard v. Ex'rs of Howard. (lei)ts and specific legacies, there remained in their hands a residue of nearly thirteen thousand dollars. The widow now exhibits her bill for relief against the executors and legatees in remainder, by which she prays — 1. That the executors may be decreed to account, and to pay the residue of the estate into her hands. 2. Alleginor that the income is insufficient for her main- teuance, that the executors may be decreed to pay to the com- plainant such sums of money as may be deemed just and rea- sonable for her support and maintenance, and for the payment of her debts. The rule is, that where there is a general bequest for life with remainder over, the whole must be sold and converted into money by the executor, the proceeds invested, and the interest only paid to the legatee for life. Howe v. Eaid of Dartmouth, 7 Vesey 137 ; Randall v. Russell, 3 3Ier. 193 ; Covenhovoi v. Shuler, 2 Paige 132; Cairns v. Chaubert, 9 Paige 163 ; 2 Kent's Com. 353 ; 2 Story's Eq. Jar., § 845 a ; Willard's Eg. Jur. 332; 2 Williams on Ex'rs {ed. 1849) 1196 ; Reed v. Eddy, 2 Green's R. 176; Ackerman's Adm'rs V. Vredand's Ex'r, 1 McCarter 23. The rule prevails, except there is an indication of an inten- tion on the part of the testator, that the legatee for life should receive the property bequeathed. Collins v. Collins, 2 Mylne & K. 703 ; Pickering v. Pickering, 2 Beav. 31 ; jS'. C. 4 Mylne & C. 289 ; 1 Story's Eq., § 604, note 1. There is nothing upon the face of the will to indicate an intention that the specific property should be reserved by the legatee. The circumstance that the bequest of the general ])ersonal estate is in the same sentence with that of the real, the devise of which is naturally speoiiid, will not be sufficient to malce it a specific legacy. Howe v. Earl of Dartmouth, 7 Vesey 137 ; 2 Williams on Ex'rs 1006. But if, by the terras of the will, the legatee for life wero entitled to receive the principal of the legacy, upon the facts disclosed by the bill and answer, and by the evidence iu the case, she is not entitled to relief. 488 CASES IN CHANCERY. Thorp V. Pettit. The legatees in remainder, by their answer, allege that there is danger of the loss of the fund in ease the principal is paid to the legatee for life. The evidence shows the existence of such danger. Indej^endent of the evidence, the fact is apparent upon the face of the complainant's bill ; the com- ])lainant herself alleging that the interest of the fund is in- sufficient for her support, and praying that she may have a reasonable allowance out of the principal of tlie fund for her support and maintenance, and for the payment of her debts. The well settled rule in equity is, that where it appears that there is danger that the j)rincipal of the legacy will be wasted or lost, a court of equity will protect the interest of the legatee in remainder by compeUing the legatee for life to give security for the safe return of the principal. Foley v. Baniell, 1 Bro. Ch. O. 279; Rome's Ex'rs v. While, ante, p. 411 ; Hudson v. Wadsworth, 8 Conn. 348; Langworthy v. Chadioick, 13 Conn. 42; Homer v. Skelton, 2 ]\IetG. 206; 1 Slonjs Eq. Jar., § 604 ; 2 Story's Eq. Jur., § 845, 845 a. And under like circumstances the executor himself will be required to give security for the safety of the fund. Batten V. Earnley, 2 P. IV. 163 ; Slanning v. Style, 3 P. IF. 335 ; Rous V Noble, 2 Vern. 249 ; 1 Story's Eq. Jur., § 603. There is no ground for requiring an account from the ex- ecutors. They have settled their account in the Orphans Court. There is no j)retence of mistake or fraud in tlie set- tlement. The interest of the residue has been regularly paid over to the complainant. The bill must be dismissed. Amos Thorp and ^Yli.LIAM Smallwood vs, Joseph Pettit. 1. A party, who seeks the ppecific performance of a contract, must show that he has performed, or been ready and willing to perform, all the es- sential terms of the contract. 2. The answer of the defendant being directly responsive to the allega- tions of the bill, and a full denial of its equity, injunction dissolved. FEBRUARY TERM, 1864. 489 Thorp V. Pettit. The bill in this cause was filed to restrain the defendant from the coraniisi-iun of certain acts, alleged to be in viola- tion of an agreement with the complainants, and to compel a specific performance of the agreement. An injnnction was issued pursuant to the prayer of the bill. Tiie defendant having answered, now moves to dissolve the injunction. Carpeyiter, for defendant, in support of the motion. A bill for specific performance rests on the complainant's having faithfully performed the contract on his part. 1 Story's Fq., § 736 ; Batten on Spec. Per/. 108. Having failed to perform their part of the contract, the complainants became mere trespassers, and would be liable in that character, but for the receipt for rent given by the defendant. Taylor on Land. & Ten., § 21—4 ; Archbold's Land. & Ten. 48-9 ; Doe v. Pullen;2 Blng. N. C. 749. The complainants have, under their agreement, a mere equitable interest. There is no part performance. They are in possession under the old lease. Archbold's Land. & Ten. 57; Z Zab. 112. The contract will not be enforced. 6 Fes??/ 548 ; 12 Vesey 464. Broion'mg, for complainant, contra. The Chancellor. The bill charges that in the year 1862, one J()so[)h D. Pancoast, being in possession of a grist mill of the defendant, situated in the city of Salem, under a lease which expired on the 25th of March, 1862, the defendant en- tered into a parol agreement with the com[)lainants, that if they would purchase the interest of Pancoast, he, the defend- ant, would lease the premises to the complainants at a speci- fied rent for the term of three years and six months, to com- mence on the 25th of September, 1861, and to end on the 25th of March, 1865; and that he, the defendant, would not, at the said city of Salem, engage in or carry on the business of grinding grain for toll, commonly called " grist work," or of selling flour or feed, except tlie offal of such grain as he might grind in conducting a merchant milling business at 490 CASES IN CHANCERY. Thorp V. Pettit. said city. It was further agreed that Pettit should draw the proper writings to carry the agreement into effect, and have them ready for execution on, or before the 25th of Septem- ber, 1861, at which time tlie complainants agreed to give the defendant satisfactory security for tiie performance of tlie agreement on their part. That at the time specified the com- pUiinants w-ere ready to execute the agreement, and to give security for its due performauce u[)on their part. That the defendant produced two papers, bearing date on the 25th of September, 1861 ; one a lease for six months from that date, and the other a lease for three years from the 25th of March, 1862 — the two terms together making the term of three years and six months, for which the defendant had agreed to lease the premises to the complainants. That the lease for six months was then executed; but both the said leases omit- ting the stipulation on the part of the defendant, not to carry on at Salem the business of grinding grain for toll, or of selling flour or feed, as above stated, the lease for three years was not executed, but the execution thereof was postponed until the covenant on the part of the defendant should be })repared, and both instruments be executed together. That the complainants thereupon entered into possession of the de- mised premises, and continue, under and in part execution of their agreement with the defendant, to hold the same as tenant of the defendant, as if the said lease and covenant had been executed, and have paid the rent, and done and per- formed all the covenants on their part, as if the said lease and agreement had been executed. But the defendant sub- sequently refused to execute the said lease for three years, or to execute and deliver the covenant on his part not to engage in the business of grinding grain for toll, or of selling flour and feed. The bill further charges that the defendant, in violation of his agreement, has commenced, and is carrying on, at said city, the business of grinding grain for toll, and of selling flour and feed, and prays that he be restrained from such violation of his agreement with the complainants ; that he FEBRUARY TERM, 1864. 491 Weatherby v. Slack. may accouat to the complainants for all the grain so ground, and flour and feed so sold, and pay to the complainants the damages they have sustained by reason thereof; and that the defendant may be decreed specifically to perform his agreement with the complainants touching the said lease. An injunction was issued pursuant to the prayer of the bill. The defendant having answered, now moves to dissolve the injunction. The defendant, by his answer, states that he executed the lease for six months, and that the complainants entered into possession of the demised premises by virtue thereof, and that he subsequently refused to execute the lease for three years, because the complainants failed to furnish the security for the performance of their contract, which they agreed to do. The answer further alleges, that since the complainants have been in possession they have not paid the taxes upon the premises, nor made repairs thereof, as by their agreement they- were bound to do. It is incumbent on a party who seeks the specific perform- ance of a contract to show that he has performed, or been ready and willing to perform, all the essential terms of the contract on his part. 1 Fry on Spec. Ptrf. 270, § 608 ; Bat- ten on Spec. Per/. 108 ; 1 Story^s Eq. Jur., § 736. Upon this point the answer is directly responsive to the allegations of the bill, and is a full denial of its equity. The injunction must be dissolved. Cited in Crane v. DeCamp, 6 C. E. Gr. 420. Isaac Weatherby vs. Philip F. Slack and others. 1. Tlie general rule is, that where a part of the mortgnged premises has been aliened by the mortgagor and a part retained by liim, the part re- tained, as between the mortgagor and his alienee, is primarily chargeable. with the debt. 2. The real question in such cases must always be, who, in equity, is bound to pay tlie debt? The debt is due from the mortgagor to the en- cumbrancers, and liis portion of the mortgaged premises must primarily 492 CASES IN CHANCERY. Weatherby v. Slack. bear tiie burden, unless it be shown that it has, by some means, been shifted upon the portion of the alienees. This fact it is incumbent upon the raortL'agor to establish. 3Ir. F. Voorhces, for complainant, cited Saxton 413 ; 2 Halst. Ch. i?. 31 ; 2 Green's Ch. R. 125; 2 JBeas. 400; 3 Amer. Law Reg. {N. S.) 154; Addison on Contracts 2 ; 3 Green's Ch. R. 224. 3Ir. Vroom, for defendants, cited Engle v. Haines, 1 Halst. Ch. R.ISQ; Wikoff v. Davis, 3 Green's Ch. R. 224. The Chancellor. The bill is filed to foreclose a mort- gage, given by Slack and wife to Aaron Wills, bearing date on the twenty-third of August, 1851, to secure the sum of five hundred dollars, and by Wills assigned to the com- plainant. On the fourth of December, 1851, a second mortgage on the same premises was given by Slack and wife to Sarah N. Bowne, to secure the sum of two thousand dollars, which was subsequently assigned, and is now held by Edward Bowne and Benajah Woodward, trustees, two of the defendants. These mortgages are admitted to be valid and subsisting en- cumbrances ui)on the mortgaged jiremises. On the sixteenth of August, 1858, Slack and wife executed a third mortgage on the same premises to Samuel K. Wilson to secure the sum of twenty-five hundred dollars, which wa9 subsequently assigned by him to the firm of Wilson & Bond, and was by them delivered up to the mortgagor to be can- celled, on receiving the conveyance hereinafter mentioned. On the fourteenth of December, 1861, Slack and wife con- veyed a part of the mortgaged premises to Samuel K. Wil- son, with covenant of general warranty. The only question in the cause is, whether that portion of the mortgaged premises thus conveyed to Wilson, or the part retained by the mortgagor, shall be first sold to satisfy the encumbrances. FEBRUARY TERM, 18G4. 493 Weatherby v. Slack. The general rule is admitted to be, that where a part of the mortgaged premises has been aliened by the mort- gagor, and a part retained by him, the part retained, as be= tween the mortgagor and his alienee, is primarily ehargeable with the debt. Shannon v. Marselis, Saxton 413; Wikoff V. Davis, 3 Green's Ch. R. 224 ; Winters v. Henderson, 2 Hoist Ch. R. 81 ; GasMll v. Sine, 2 Beas. 400 ; 2 Story's Eq. Jur., § 1233 6 ; 1 Wash, on Real Prop. 570. The real question in such cases must always be, who in equity is bound to pay the debt? The debt is due from the mortgagor to the encumbrancers, and his portion of the mortgaged premises must primarily bear the burden, unless it be shown that it has, by some means, been shifted upon the portion of the alienees. This fact, it is incumbent upon the mortgagor to establish. The mortgagor, by his answer, alleges that the deed to Sam- uel K. Wilson for a part of the mortgaged premises, was exe- cuted to him at the request of the firm of Bond & Reading, (the firm being com[)osed of Samuel K. Wilson, Joseph W. bond, and Franklin Reading,) and that it was well understood between himself and the said Samuel K. Wilson, on behalf of himself and the other parties, that the property conveyed by the said deed was to be by them accepted, and the same was by them accepted, subject to the payment of the two mort- gages upon the premises, set out in the complainant's bill ; and he insists that Wilson, having acce])ted the said deed for a part of the said mortgaged premises, and having received the same in full payment and satisfaction of the mortgage of said firm, which was thereupon given up to be cancelled, and subject to the payment by Wilson, or by the said firm, of the said two mortgages, the balance of the mortgaged premises now held by the mortgagor, is not liable to pay any part of the mortgages, but that the mortgagor, by virtue of the agreement aforesaid, is entitled to hold the same free and discharged therefrom. The grantees of the mortgagor, by their answer, deny that they, or either of them, ever agreed to accept a conveyance Vol. I. 2 H 494 CASES IN CHAXCERY. Weatherby v. Slack. of a part of the said mortgaged premises, subject to tiie pay- ment of the mortgages thereon, or that such deed was ac- cepted in payment of their debt. They allege that the firm liolding a mortgage upon the whole of said premises, and a bill having been filed for the foreclosure thereof, the mortgagor, then being the owner in fee of the whole of said premises, proposed to convey the same to the. complainants, if they would discontinue the suit, and permit him to occupy the premises one year, rent free.- And it was thereupon agreed between the parties, that the said Wilson and Bond should discontinue their proceedings to foreclose, and permit the mortgagor to occupy the premises for one year, free of rent, j)rovided he would pay the taxes, insure the premises against fire, and, together with his wife, execute a deed for the moi-tgaged premises to the said firm, or to such person, for their use, as they should designate ; and that the mortgaged premises subject to the encumbrances, would be received ia satisfaction of their mortgage. They further allege that the deed subsequently made by the mortgagor to Wilson, was •delivered to one of the firm of Bond and Wilson, under the •agreement then made, and was accepted, and the bond and mortgage surrendered, upon the understanding and belief, and under the representation of the mortgagor, that the deed covered the whole of the mortgaged premises. The issue made by the pleadings is, whether the grantees of Slack, the mortgagor, agreed to accept, and did accept, a deed for part of the mortgaged premises in payment of their mortgage, and upon the condition of their paying the prior mortgages upon the premises. The claim of the mortgagor, to make a debt due from himself an encumbrance upon the land of his grantees, depends upon the establishment of that fact to the satisfaction of the court. It is not so established. On the contrary, I think the decided weight of the evidence is, that Slack agreed to make, and the grantees to accept, a conveyance, not for a part, but for the whole of the mortgaged premises, and that the deed actually delivered was not de- FEBRUARY TERM, 1864. 495 Weatherby v. Slack. livered in good fi\ith, or in accordance with the agreement and understanding of the parties. The mortgaged premises are an ordinary town-lot, consist- *ng of a dwelling-house and lot in Mount Holly, fronting /orty-four feet five inches on High street, and extending in lepth one hundred and eighty-eight feet one inch ; the dwelling-house oconnving the front of the lot, and a stable standing on the rear. The deed to Wilson conveys a lot one hundred and sixty-eight feet one inch in depth, thus exclud- ing twenty feet of the rear of the lot, upon which the stable stands. The description of the premises conveyed by the deed, is identical with that covered by the mortgage, as to course and distance, excepting in the length of a single line, so that the variation, even if the deed had been examined, would not be very likely to arrest attention. Nor is there anything u[)on the face of the deed, indicating that it was for a part only of the lot as held and occupied by the mort- gagor. The evidence shows that the part of the lot not included in the deed, is worth five hundred dollars, and that the division would injure the value of the entire premises to a still larger amount. That mortgagees who had commenced proceedings for foreclosure should arrest the suit, and allow the mortgagor to continue a year in possession, rent free, upon receiving a title for the premises without the expense of litigation, is neither incredible, nor improbable. But that they should at the same time consent to receive title for a portion of the premises, by which their security was seriously impaired, is not probable. The mortgagees severally deny that they ever made such an agreement. They all state that fhey understood the deed to cover the entire mortgaged pre- mises, and they all deny that a word was ever said in the course of the negotiation, about conveying less than the whole of the mortgaged premises. The partner by whom the negotiation for the conveyance was principally conducted, states that the con- tract was made expressly for the entire lot. But the testimony of the mortgagor himself is decisive upon this point. He .'^ays that he proposed to convey the house; that nothing 496 CASES IN CHANCERY. In the matter of Chattin. was said between himself and the grantees as to the quantity of land he should convey. He drew the deed himself, and included in the description so much land as he deemed suffi- cient to pay what he owed them. He does not pretend that the attention of the grantees was ever called to the descrip- tion as he had drawn it; that he ever intimated that it in- cluded only a part of the lot held and occupied with the house; or that they supposed or believed that it was other than a conveyance of the entire lot covered by their mort- gage. The evidence incontestably proves that the grantees negotiated for, and expected to receive, a deed for the house and lot as they were held and occupied by the grantor. It is incredible that they should have consented to surrender a bond and mortgage upon a town house and lot, and receive in return a conveyance for the house alone, or so much land only as the grantor saw fit to convey. The land not conveyed by the grantor is chargeable with the mortgage debts, and must be sold first in order. There must be a reference to ascertain the amount due upon the mortgages. In the matter of Adam S. Chattin. 1. A commission of lunacy may issue ■where the alleged lunatic is an infant. 2. The issuing of a commission of lunacy rests in discretion. Ckirman, for petitioner. The Chancellor. The only question in this case is, whether a commission of lunacy ought to issue, the alleged lunatic being a minor. Infancy is no bar to the issuing of a commission. But where a guardian has been appointed for the infant, his con- FEBRUARY TERM, 1864. 497 In the matter of Chattin. trol over the person and estate of his ward ought not to be interfered with, on the ground that the ward labors under a double disability, exce{)t in cases of clear necessity. Even where the lunatic is of full age and the lunacy manifest, the issuing of the commission is not a matter of course, but rests in discretion. It will be issued only where it is required for the interest of the lunatic, or to protect the rights of others. Ex parte Tomlinson, 1 Ves. & B. 58 ; Rebecca Owings' case, 1 Bland's Gh. R. 290 ; Stock on Non Camp. 95. In the case o( Hake, an infant, cited in Ex parte Southcot, 2 Ves. sen. 403, a commission was ordered by Lord Hardwicke, on the application of a party who was entitled to the rever- sion of an estate after the death of the alleged lunatic, although at the time, the infant was under guardianship. In Sherwood v. Sanderson, 19 Vesey 289, Lord Eldon, referring to a case within his recollection, said : " That if a lady at the age of seventeen or eighteen had been married by an adventurer for the sake of her fortune, it would be compe- tent for the Chancellor to direct an inquiry whether she was of sound mind when married, and whether it would be for her benefit that a commission of lunacy should issue.'" And see 2 Collinson on Lun. 217. The authority of guardians over the persons and estates of infants, and the power which this court exercises over the persons and estates of its wards, generally renders the issuing of a commission of lunacy unnecessary during infancy ; but if any circumstance renders it necessary or expedient, a com- mission will issue. In re Flint, cited Shelford on Lun. 91 ; Macpherson on Infants 560 ; Stock on Non Comp. 94. In this case, the infant, though entitled to property, has no guardian. Being over the age of fourteen, he cannot apply for the appointment of a guardian, as prescribed by the statute. His property requires to be protected. The issuing of the commission, therefore, is necessary and proper. 498 CASES IN CHANCERY. In the matter of Child. In the matter of John M, B. Child. 1. Where the alleged lunatic is in an asylum, tlie commission should be executed in the county where his mansion and estate are, or where he last resided before being sent to the asylum, 2. It is not absolutely necessary that the alleged lunatic should be be- fore the jury. A commission may issue where he is a non-resident, or tem- porarily absent from the state, and where it is impossible for the jury to Bee him. 3. If necessary, the court will order the party having the alleged luna- tic in charge, to bring him before the jury, 4. Where the estate of the lunatic is small, the court will, it seems, in order to avoid inconvenience and expense, order the commission to issue to a different county from that in which he resides. A. Mills, for petitioner. The Chancellor. The alleged lunatic is an inmate of the State Lunatic Asylum, in the county of Mercer. Before he was sent to the asylum, he resided in the county of Morris, where his property is situate. In which county shall the commission be executed ? Neither the statute, nor the rules of the court, give any direction on the subject. The regular practice of the court is, to direct the commission to be exe- cuted in the county where the lunatic ordinarily resides. This is in accordance with the ancient practice of the court. Ex parte Baker, 1 Cooper's Ch. Cas. 205; /S'. 0., 19 Vesey 340 ; Ex parte Hall, 7 Vesey 260 ; Ex parte Smiih, 1 Sioan- ston 4. In ex parte Smith, Lord Eldon said : " If a man resident in the city of London, were conveyed by force into Essex, he would still for this purpose be resident in the city. A man cannot be said to reside in a place, to which he has been carried, while he has not mind enough to intend a change of residence." The execution of the commission in the county where his residence was, prior to his removal to the asylum, and where FEBRUARY TERM, 1864. 499 In the matter of Child. his property lies, is not only iti accordance with the settled usage of the court, but will be found in practice, to be the most convenient and appropriate course. If there be any doubt as to the insanity of the party, the investigation and decision of that question, at a place remote from his family and former friends and associates, would be open to grave observation. The inquisition, moreover, respects not only his present lunacy, but how, and when it originated. It extends also to the alienations made by him of his real estate; the lands which still remain to him, and their value ; who are his nearest heirs, and their ages. All these questions will be most conveniently and satisfactorily investigated in the place where the party has resided, and where his property is. In Southcot's case, 2 Ves. sen. 401, the alleged lunatic being abroad, Lord Hardwicke ordered the commission to issue to the county where the mansion-house and a great part of the estate lay. The objections to this course, that the jury are entitled to see and examine the party, and that witnesses who can speak most satisfactorily as to his present condition of mind, will be found at the asylum, are not insuperalile. It is not absolutely necessary that the party should be be- fore the jury, and in cases free from doubt, it is perhaps not usual. A commission may issue where the alleged lunatic is a non-resident, or temporarily absent from the state, and where it is impossible for the jury to see him. E.v parte Southoot, 2 Ves. sen. 401 ; S. C, Ambler 109 ; In the matter of Perkins, 2 Johns. Ch. C. 124 ; In the matter of Petit, 2 Paige 174 ; 2 Barb. Ch. Pr. 230. And where the party is in the state, and accessible, he may be seen by some of the commissioners, and of the jurors. The material point is, that the minds of tiie jurors should be satisfied. Ex parte Smith, 1 Swanston 7 ; Case of Covenhoven, Saxton 19. Or, if necessary, an order will be made by the court that the party having the lunatic in charge, should have him be- fore the jury. She/f. on Lun. 91 ; 2 Hoffman's Ch. Pr. 252. 500 CASES IN CHANCERY. In the matter of Child. It seems from one or two modern cases, that where the es- tate of the lunatic is small, the court, in order to avoid in- convenience and expense, will order the commission to issue to a different county from that in which the alleged lunatic resides. J/i re Waters, 2 Mylne & C. 38 ; In re Mills, Ibid, note a. The residence of the party must be deemed to be where his mansion and property are, or where his last residence was, before he came to the asylum. In the absence of very special cause for a different course, the commission should issue and be executed accordingly. C^SES ADJUDGED IN THE PREROGATIVE COURT or THE STATE OF NEW JERSEY. FEBRUARY TERM, 1863. Heney W. Green, Esq., Ordinary. Ezra Gould, appellant, and Jane Tingley, executrix of David D. Tingley, respondent. 1. Where the notice requiring creditors to present their claims, has been given in pursuance of an order of the Orphans Court, under section 3d of the "act concerning the estates of persons who die insolvent," {Nix. Dig, 386,) the creditor cannot be admitted to a dividend of the estate, unless his claim has been presented under oath, within the time limited by the order. 2. Nor does it obviate the necessity of presenting the claina under oath, that the order and notice requiring claims to be exhibited, were made by the surrogate under section 22d, of the act of 1855. {Nix. Dig. 589.) 3. The act of 1855, on proceeding under a rule to bar creditors, having required the claim of the creditor to be made under oath, dispensed with the necessity of a second presentment of the same claim under proceedings to declare the estate insolvent. 4. The requirements of both acts are imperative, not directory merely. 5. The question involving the construction of a recent statute, the decree is made without costs against the appellant. 501 502 PREROGATIVE COURT. Gould V. Tingley. This case came before the Ordinary on an appeal from the decree of the Orphans Court of the county of ICssex. The a[)pellant, a creditor of the estate of David D. Tingley, had presented his claim to the executrix, not under oath. The claim was not reported to the court. An application was made to compel the executrix to report the claim. The ap- plication was denied, and it was ordered that the claim be not included among the debts of the estate, and that the execu- trix make distribution of the estate among the creditors who had presented their claims under oath. From this decree the creditor has appealed. Huhbell, for appellant. Williamson, for respondent. The Ordinary. On the twenty-eighth of August, 1861, an order was made by the surrogate of the county of Essex, under the provision of the twenty-second section of the act of 1855, {Nix. Dig. 589, § 70,) directing the executrix of the estate of David D. Tingley, to give notice to the creditors of the estate to bring in their claims, under oath, within nine months from the date of the order. The notice was duly published. The claim of the appellant was not presented to the executrix under oath. On the seventh of January, 1862, under the provision of the twenty-fourth section of the same act, the executrix was authorized to proceed as though the estate of the decedent was insolvent, agreeably to the "act concerning the estates of persons who die insolvent." On the fifteenth of September, 1862, the executrix made a report of the claims and demands exhibited agaiast the estate, not in- cluding the demand of Ezra Gould, the appellant. An appli- cation was subsequently made to the Orphans Court, to compel the executrix to include the claim of Gould, in her report o^ the claims against the estate, in order that a dividend might be paid thereon. This application was, upon hearing, denied, and it was ordered that the claim be not included among the debts of the estate. The estate was declared insolvent, and FEBRUARY TERM, 1863. 503 Gould V. Tingley. the executrix directed to make distribution of the estate among the creditors who had presented their claims under oath. From the order refusing to admit his claim to a divi- dend, and also from the final decree of distribution, the creditor has aj)pealed to this court. If the notice in this case, requiring the creditors to present their claims, had been given in pursuance of an order of the Orphans Court, agreeably to the third section of the "act concerning the estate of persons who die insolvent," {Nix. Dig. 386,) it is well settled that the creditor could not be ad- mitted to a dividend of the estate, unless his claim had been })resented to the executrix under oath, within the time limited by the order. Vandyke, v. Chandler, 5 Haht. R. 49 ; Cop- puck V. Wilson, 3 Green's R. 75. Tiie only question is, whether any change in this regard was effected in the law by the act of 1855, where the notice requiring the claims to be exhibited was given pursuant to an order of the surrogate. It is quite clear that no change was intended to be made by the act of 1855, in the proceedings in regard to insolvent estates, except so far as is expressly provided by the twenty- fourth section of the act. By that section it is provided that, when an order shall be obtained, and notice given, agreeably to the twenty-second section of the said act, if within ten months thereafter, the executor shall make application for that jjurpose as prescribed by the act, he may take all proceedings, and make, by order of the court, all sales of real estate that may be authorized by the "act concerning the estate of per- sons who die insolvent," without proceeding as is required by the third section of that act. It is merely a substitution of the order and notice under the twenty-second section of the act of 1855, for the order and notice under the third section of the act respecting insolvent estates. Under the two statutes, the order is made and the notice given for vlifferent pnr[)oses. Under the act of 1855, they are designed primarily to operate as a limitation to the right of action against the executor. Under the act res{)ecting insolvent estates, the primary design is to ascertain the shares to which 504 PREROGATIVE COURT. Gould V. Tingley. the creditors are severally entitled in the distribution of the estate. Both statutes require the claim of the creditor to be presented within a limited time, under oath. Under the fif- teenth section of the act for the limitation of actions, [Nix. Dig. 571, § 21,) the claim of the creditor was not required to be made under oath. Nor was the law, in tiiis respect, altered by the act of 1849, for the relief of legatees and next of kin in the recovery of legacies and distributive shares. The latter act (section 3) simjily requires the claims to be pre- sented in writing, specifying the amount claimed, and the particulars of the claim. But the twenty-second section of the act of 1855, which seems to have been designed to some extent as a substitute for the former acts, requires the claims against the estate to be made under oath, as in case of insol- vent estates. A rule taken to limit creditors, and publica- tion made under the former statutes were of no avail, if the estate was declared insolvent, for the claim was not exhibited under oath. A new order and publication were necessary. But the act of 1855, on j)rocecding under rule to bar creditors, having required the claim of the creditor to be made under oath, dispensed with the necessity of a second presentment of the same claim under proceedings to declare the estate insolvent. It is urged that the requirements of the act of 1855, are directory merely, and not imperative. Both acts are alike imperative in their terms. The consequence to the creditor for not exhibiting his claim under the one act is, that he shall be deprived of his dividend in the distribution of the estate; under tiie other, that he shall be barred of his action against the executor. No reason is perceived, nor is any suggested, why "the requirement in the one case, should be regarded as imperative, and in the other, as directory. The clause in the twenty-second section of the act of 1855, which declares that if the creditor shall neglect to exhibit his claim within the time limited, he shall be barred of his action, must be construed to mean an exhibition of his claim in the mode prescribed by law. To require that the claim should be ex- hibited under oath, and then to permit an exhibition of the MAY TERM, 1863. 505 Sayre's Adm'r v. Sayre. claim not under oath, to satisfy the requirement, would ren- der the enactment nugatory. But if it be conceded that the requirement of the twenty- second section of the act of 1855, so far as respects the limi- tation of the claims of creditors, is directory merely, it cannot aid the claim of the apjjellant, nor in any wise affect the rights of the creditor under the act respecting insolvent es- tates. Under that act it is clear, that the claim of the creditor must be presented U!ider oath, in order to entitle it to be included among the claims of creditors in the report of the executor, or to entitle the creditor to a dividend of the estate. Admitting that the creditor was not barred of his action against the executrix, under the provisions of the act of 1855, he is barred of all claim for a dividend under the act respecting insolvent estates. Whether the order is made, and notice given under the act of 1856, or under the act re- specting insolvent estates, is immaterial. In either contin- gency, the presentment of the claim by the creditor under oath, is a prerequisite to his receiving a dividend of the in- solvent estate. No recognition of the claim by the executrix, or by the court, can supply the place of the statutory re- quirement. The decree of the Orphans Court was correct, and must be affirmed. As the question presented involves the con- struction of a recent statute, in regard to which there was room for doubt, the decree is made without costs against the appellant. MAY TERM, 1863. Brooks Sayre, administrator of Isaac Sayre, deceased, ap- pellant, and Anthony S. Sayre, respondent. 1. Evidence taken under an order of the Prerogative Court to be used upon the hearing of an appeal, is competent. 506 PREROGATIVE COURT. Sayre's Adm'r v. Sayre. 2. It is no v.'ilid objection to a decree of distribution, that it is made in favor of parties wlio are not applicants therefor, and whose sliares have been satisfied or released. 3. The decree of distribution is final and conclusive betveeen the admin- istrator and the distributees, as to the amount of each share, and the party entitled to receive it. It is an effectual protection to the administrator, against all claims for moneys paid pursuant thereto, though it should prove that the decree was erroneou.s, and the money paid to a party not entitled. 4. The remedy by a party deprived of his rights by the decree, is not against the administrator, but against the distributees who have wrpngfiilly received the estate. In their favor, as against the rightful claimant, the decree does not operate. 5. It is no part of the oflBce of a decree of distribution, to settle whether the share has been paid, in whole or in part, or whether the legal or equi- table interest in the fund may have been assigned. Its office is simply de- claratory of the rights of the legal representatives or next of kin in the estate of the intestate. 6. The question, whether an administrator has actually paid a claim under the order of distribution or not, can only be properly tried by suit. 7. But no action can be brought by the claimant, until the decree of dis- tribution is made. The decree, it would seem, must of necessity be made, in order that the right may be properly tried and decided. 8. The decree upon the final settlement and allowance of administrator's accounts, is final and conclusive upon all parties interested. It ascertains and declares the net balance in the administrator's hands, and the sum for which he must account to the distributees. 9. The order for distribution maybe made at the instance of the admin- istrator, or of any one of the distributees. If made at the time of the set- tlement, no further notice is necessary. 10. A separate decree cannot be made at the instance of each of the slaimants. 11. One decree only, can protect the administrator. Bradley, for appellant. C. ParJcer, for respondent. Cases cited by appellant's connsel. Conset on Courts, 216, 5 3 ; HaWs Adin. Prac. 101 ; Chambers v. Sunderland, HalsL Dig. 216, § 3j Bead v. Drake, 1 Green's Ch. R. 78. Cases citod by respondent's counsel. 4 Grlf. An. Law MAY TERM, 1863. 607 Sayre's Adm'r v. Sayre. Reg. 1192 ; Hancock v. Hubbard, 19 Pick. 172; Proctor v. Neiohall, 17 Mass. 93 ; Osgood v. Breed's heirs, Ibid. 356 ; The Ordinary v. J' Ac Executors of Smith, 3 Green's R. 93. The Ordinary. At the term of April, 1852, in the Orphans Court of the county of Essex, a decree was made for the final settlement and allowance of the account of Brooks Sayre, administrator of Isaac Sayre, deceased, by which it appeared that there remained in his hands, of the estate, a net balance of $3091. 22J. At the same time an order was made that the administrator distribute and pay over the said sum to the persons entitled by law to receive the same. On the twenty-seventh of March, 1855, on the petition of Anthony S. Sayre, one of the next of kin of the intestate, an order was made that cause be shown before the court on the twenty-fourth of April, then next, why decree of distril)ution should not be made, as prayed for in the petition. On the said twenty-fourth da^ of April, evidence having been taken, a formal decree of distribution was made, by which the next of kin of the intestate are designated, their respective shares ascertained, and the share due to each directed to be paid ac- cordingly. From tliis decree the administrator appealed. Pending the appeal, evidence has been taken in this court, under an order of the late Ordinary, tending to show that one of the chihlrcn of the intestate, to whom the decree directed one of the distrilnitive shares to be paid, died several years previous to the decree ; that the distributees, to whom one or more of the otiier shares were directed to be paid, were satis- fied in whole or in part, prior to the decree ; and that the distributees of two of the shares had, prior to the decree, exe- cuted to the administrator a release of their claims. Of the competency of evidence taken under an order of this court to be used upon the hearing of an appeal, there can be no doubt. It cannot be denied that the taking of additional evidence upon the merits of the case, to be used upon the hearing before an appellate tribunal, is apparently incongru- 508 PREROGATIVE COURT. Sayre's Adm'r v. Sayre. ous, and is utterly inconsistent witli the established principles both of the courts of common law and of equity. But the well settled rule of the ecclesiastical courts is, that such evi- dence is admissible, and the uniform practice of this court is in accordance with that rule. Consei\s Eecles. Prac. 216, part 5, sec. 5, § 3 ; HaWs Adm. Prac. 101 ; Chambers v. Sander- land, Haht. Dig. 216, § 3; Read v. Drake, 1 Green's Ch. B.7S. The rule, as stated by Conset, is that " in a cause of appeal from a definitive sentence, it is lawful, both for the party ap- pealing, and the party appellate, to allege things not alleged before the judge from whom it is api)ealed ; and to prove things not proved, so as the publication of the witnesses pro- duced in the first instance hinder not. But it is otherwise ia a cause of ajipeal from grievances, which ought to be proved by the proceedings, and the act of the judge from whom it is appealed." It would seem from the reported language of Chancellor Williamson, in Chambers v. Sunderland, that he regarded the rule as not of general application ; but the brief note of the opinion furnishes no clue as to what he regarded as the nature, or extent of its limitation. It will perhaps be found to extend only to that class of cases in which the Prerogative Court exercises original, as well as appellate jurisdiction. However this may be, the present case is clearly within the operation of the rule. It is insisted that the decree of the Orphans Court is illegal, because it appears that the decree is made in favor of parties who were not applicants for the decree, and whose shares are shown to have been satisfied or released. It is claimed that the decree should be made only in favor of such of the next of kin as ap[)ly for the decree ; and that no decree can or ought to be made in favor of a jiarty whose claim is shown to be satisfied or released. Upon the argument, the objection appeared to me to have much weight, inasmuch as there appears upon the record, a final decree against the MAY TERM, 1863. 509 Sayre's Adra'r v. Sayre. administrator, in favor of a party whose claim is in fact ex- tinguisiied. But I am satisfied that the objection is not well founded, and that the apparent difficulty n suits from mistaking the true office and operation of the decree for distribution. Tiie decree is undoubtedly final and conclusive between the ad- ministrator and the distributees, as to the amount of each share, and as to the party entitled to receive it. Thus, in an action against the administrator for the recovery of a dis- tributive share, it would be conclusive evidence of the amount to which the plaintiff^ is entitled. So the decree would be an cifectual protection to the administrator, against all claims for moneys paid pursuant to the decree, although it should prove that the decree was erroneous, and the money paid to a party not entitled. The remedy in such case, by a party who has been deprived of his rights by the decree, is not against the administrator, but against the distributees who have wrongfully received the estate. In their favor, as against the rightful claimant, the decree would not operate. This subject was considered and decided by this court in the recent case of Exton, Adm'r, v. Zide, 1 McCarter' 601, where the Chief Justice sat and advised with the Ordinary. But even as between the administrator and the distributee, the decree is final only as to the amount of the respective shares, and the persons entitled by law to receive them. It is no part of the office of the decree, to settle whether the share has been paid in whole or in part; or whether the legal or equitable interest in the fund may have been as- signed. The law settles with great precision, to whom the shares of the estate shall be allotted in making the distribu- tion. Mx. Big. 278, § 12, 13. The office of the decree is simply declaratory of the rights of the legal representatives, or next of kin, in the estate of the intestate. Beyond that, it professes not to decide, and in the very nature of the case, it can decide nothing. The claims may be paid, or released, or transferred to other parties, but these are questions with which the decree has no concern, Vol. I. 2 r 510 PREROGATIVE COURT. Sayre's Adm'r y. Sayre. and which the court have neither the power, nor the means of investigating. If the administrator should allege that he had paid tiie claim, how is that question to be settled ? It can only be properly tried by suit. But no acfion can be brought by the claimant, until the decree of distribution is made. The decree, it would seem, must of necessity be made, in order that the right may be properly tried and decided. In like manner the decree upon the final settlement and allowance of the administrator's accounts, is final and con- clusive upon all parties interested. It ascertains and de- clares the net balance in the administrator's hands. It fixes the sum for which he must account to the distributees. But whether it has been already paid, or is still in the hands of the administrator, it does not decide. It leaves that to be ascertained and settled when the claim shall come to be en- forced. The general decree for distribution, which wa? formerly in common use, simply directed the balance to be j)aid to the persons entitled by law (o receive the same. The special order for distribution, ascertains further who those persons are. But it does not profess to settle whether the claims have been paid, or released, or assigned, any more than does the general decree for the settlement of the estate. The order for distribution may be made at the instance of the administrator, or of any one of the distributees. If made at the time of the settlement of the estate, it is consequent uj)on the decree for settlement. No further notice is neces- sary. The notice to the next of kin is in most cases con- ••tructive, not actual notice. The decree for distribution is tnade in their absence, without any actual knowledge of the proceeding. How is the court, under such circumstances, to lecide whether payments claimed to have been made by the idministrator, have been made or not? The rights of the )arty cannot thus be decided. The statute does not author- ize it. Nor can a separate decree be made at the instance of each of the claimants. The statute clearly contemplates but one decree. By one decree only, can the administrator be MAY TERM, 1863. 511 Sayre's Adm'r v. Sayre. pffectually protected. The decrees, if several, may vary in amount. It may appear uj)on the first application, that there are but two claimants, and the applicant may receive the half of the estate, wlten it may subsequently prove that there were, in truth, three or more. Making separate de- crees must lead to endless difficulty. I am satisfied that the proper j)ractice was adopted by the Orphans Court in this case. Even if the evidence now before this court, as to the jiaynient and release of some of the claims, had been before them, it would have been irrelevant to the question which they were called on to decide. For the same reason, I deem it irrelevsTit to the question at issue here. The evidence taken before the Orphans Court, has not been sent up with the papers. It does not appear that it was reduced to wri()ing. Tlie evidence taken on the appeal, shows that Hannah Ward, one of tlie distributees, died on the sev- enteenth of May, 1819. When the intestate died, does not appear, nor whether Hannah survived him. She left an only daughter, whose claim against the estate a[)pears to have been satisfied. The share of Katy Thompson, one of the sisters of the intestate, is by the decree directed to be paid to Sarah Morgan and Moses Thompson, two of her children. It ap- pears that she left two other children, viz. Aaron O. Thomp- son, and Elizabeth, who married John Harvey Jaques. Whether they are living or dead ; and if dead, when they died ; or whether they left issue, does not appear. All the children have released their claim upon the estate. In regard to both these shares, the decree will probably require to be ci)rrected. The evidence, as it stands, does not show cleaply who, at the date of the decree, were the legal representatives of those shares. It can in no wise affect the real matter in controversy. The number of shares declared, and the amount apportioned to each of the other distributees, is admitted to be correct. The decree will be corrected in accordance with the facts, U])on the production of the proper evidence, or by consent of counsel, without costs to either party as against the other. 512 PREROGATIVE COURT. Vreeland v. Vreeland's Adin'r. OCTOBER TERM, 1863. John J. Veeeland and wife vs. Hexry Schoonmaker, administrator of Enoch J. Vreeland, deceased. 1. The act of 1852, "for the better securing the property of married women," Nix. Dig. 503, confers upon the wife no power of aliening or disposing of her separate property ; she can only do so by the consent, and with the concurrence of her husband. She has the right of owner- ehip, without the power of disposition. 2. The right of the husband to the wife's choses in action, as well as to her other property, real and personal, was extinguished by the act of 1852. 3. A bond given to the wife in her own name, and accepted by her in lieu of specific real and personal property to which she was entitled by inheritance, remains absolutely hers, as if she were a single female, and is not subject to the disposal of her husband. 4. The payment of such bond at its maturity to the husband, its subse- quent investment by him in his own name, without ol)jection by the wife, and his receipt of the interest, is no evidence (since tlie act of 1852) of the transfer of tlie property from the wife to the husband, or of the determi- nation of her interest. 5. The reduction of a chose in action (the separate property of the wife) into possession, by the husband, without tiie consent of the wife, does not change the title of the property. The husband is accountable for so 7nuch of the estate of the wife, secured to her separate use, as has come into his hands. 6. Irrespective of the rights of the wife under the act of 1852, it is not every reduction by the husband, of the wife's choses in action into posses- sion, that will vest the property absolutely in the husband. The owner- ship follows the will of ihe husband. But under that act, the husband has no right to convert the wife's choses in action to his own use. Such conversion is a violation of the rights of the wife. 7. The wife's assent to the reduction by the husband, of her choses in action into possession, for the mere purpose of re-investment, is no evidence of her assent to its conversion to the use of the husband. 8. If the wife's separate property consist of land, and she lives upon it, the husband may enjoy it jointly with her ; if of chattels in possession, the husband may use them. 9. Though the wife may hold property in her own name, under the act of 1852, as if she were a feme sole, she can make no valid contract in re- OCTOBER TER:\r, 1863. 513 Vreeland v. Vreeland's Adtn'r. gard to it, nor can she enforce its collection, without the intervention of her husband. 10. The fact that wliile a husband and wife are living together, he should be permitted to take the interest or profits of her separate estate for their mutual benefit, or for Iiis own use, should, as between the husband and wife, raise no presumption prejudicial to her right. 11. The second section of the act of 1852 does not relate only to the property in existence when the law went into operation ; it applies equally to after acquired property. 12. The bond having been collected by the husband, and the money in- vested in his own name, the widow caimot claim the protection of the act of 1851. Nix. Dig. 282, § 35. That act extends only to the specific chat- tel or chose in action. 13. The Orphans Court has no authority to try disputed claims, except in the case of insolvent estates. In such case, either the executor or ad- ministrator, or any person interested, may file exceptions against the claim of any creditor, and the court are to liear the proofs, and decree and deter- mine in regard to the validity of the claims. It is a settled principle, that the Orphans Court is not the proper tribunal for the trial of disputed claims. But by a disputed claim here, is meant a claim which is disputed by the executor or administrator, not a claim which the legatee or next of kin may deem unfounded or unjust. 14. If the executor or administrator disputes a claim, or refuses to pay it, the Orphans Court cannot allow it, or compel the executor or adminis- trator to include it in his account. To justify the Orphans Court in allow- ing a claim against an estate, it must appear that the executor or adminis- trator assented to, or recognized it as a debt due from the estate. But if the executor or administrator admit the claim, and pray allowance for it in his account, it is not a disputed claim within the meaning of the rule, and falls properly within the jurisdiction of the Orphans Court. 15. Claims against the estate, paid by the executor or administrator, constitute properly a pxrt of his account. If a claim paid by an executor or administrator, is illegal and unfounded, the charge in the account is open to exception, and the question thus brought within the jurisdiction of the Orphans Court. 16. The mere fact that a debt or legacy has not been actually paid, con- stitutes no objection to its allowance upon the settlement of the account, if its existence is clearly established. By the settlement, the executor or administrator becomes liable for the amount thus allowed. 17. If au administrator, by collusion with the claimant, claims allow- ance for a debt not paid, in order to withdraw the cognizance of the ques- tion from the ordinary tribunals of law or equity, it is a good ground of exception before the Orphans Court, and the item may be stricken from the account. 614 PREROGATIVE COURT. Vreeland v. Vreeland's Adru'r. 18. An administrator is accountable for all property of the deceased, which came to his hands to be administei'ed. He cannot be relieved from the accountability on the ground of loss, where the loss wns occasioned by any default of his own. 19. Loans made on private or personal security, are at the risk of the trustees,' who are personally answerable if the security prove defective. To afford complete indemnity to the trustee against the hazard of respon- Bibility for loss, the investment must be made in goverment stocks, or upon adequate real security. 20. An executor or administrator cannot sell, and part with the posses- sion of assets which have come to his hands to be adminLstered, without requiring security for the price. If he sell under judicial sanction, he must pursue strictly the order of the court. If he sell upon credit, without judicial sanction and upon his own discretion, he must use due caution in obtaining adequate security. If he do otherwise, he acts at his peril ; and if a loss is sustained by the insolvency of the purchaser, he is guilty of a devastavit. This case came before the Ordinary on appeal from a de- cree of the Orphans Court of the county of Bergen. Enoch J. Vreeland, the intestate, died May 4tli, 1861, leaving him surviving, his wife, Sophia Vreeland, but no children. Eleanor Vreeland, one of the appellants, is his sister, and only next of kin. The respondent, Henry Schoon- maker, ministered on his estate, filed an inventory thereof, araoiuiting to $10,542.24, and, on the tenth of September, 1862, filed his final account, showing Debits to the amount of $11,234 49 Credits to the amount of. 3,565 54 And a balance of $7,668 95 Among the credits claimed by the administrator in his account, are the following: " He further prays allowance for amount received by Sophia Vreeland, widow, by bequest from her father during coverture with intestate, and which, at his death, remained in his possession, $2,000 00 " He further prays allowance for amount due from John Blauvelt, on vendue book (desperate), 11 81 OCTOBER TERM, 1863. 515 Vreeland v. Vreeland's Adni'r. "Also, for amount due from Peter Magiuuis, ou vendue book (desperate), $55.08 To these credits the appelhints excepted. Evidence was thereupon taken before the judges of the Orphans Court. On the eighth of December, 1862, the court made a decree overruling the exceptions and confirming the account, where- upon the exceptants appealed. The case, on the items excepted to, is this : The two small items of i$l 1.81 and $55.08, are amounts due for goods of the intestate, which came to the hands of the administrators, and which the latter sold at vendue. Having failed to collect the proceeds of the sale, he asks to be discharged the amount. By his own evidence, it appears that one of tlie parties to whom he sold, was not deemed re- sponsible. The item of $2000 is claimed to be money of the intes- tate's widow, Sophia Vreeland, which came to her in 1855, from the estates of her father and mother, and which, having been received by the intestate in his lifetime, swelled the amount of his inventory to that extent. The administrator claims the right to retain that amount for the benefit of thw widow. The facts in relation to this money api)ear to be as follows; Abraham L. Ackerman, the father of Sophia Vreeland, the intestate's widow, died in 1855, leaving personal property to the amount of $1500. Agnes Ackerman, his wife, died about the year 1850. She owned the homestead farm. In tliis pro- perty Sophia Vreeland had an interest, as one of the heirs. In December, 1855, Sophia Vreeland*s brothers, Lawrence and Abraham, (whjie her husband was living) settled with her and her eister., Hester, by giving them $2000 apiece, for their siiare of the father's and mother's estates, giving to Mrs. Vreeland, for her share, their joint aiuj several bond for $2C00, dated December 24th, 185q, r^d payable May 1st, 1856, She and her .=;ister gave their brothers a release of all their interest in their father's ,^ud mother's estates, by deecl 516 PREROGATIVE COURT. VreeJand v. Vreeland's Adm'r. dated December 24th, 1855. Lawrence Ackerraan paid her his $1000 on the first of May, 1856, which M'as put out at interest in Enoch J. Vreeland's name. Abraham K. Acker- man paid his $1000 by giving his bond and mortgage there- for, when the joint bond became due. On tliis bond he paid $400 to Enoch J. Vreeland, a day or two before liis death. This money was given to the administrator by Mrs! Vree- land. He inventoried it, and loaned it to Richard Berdan, and took his note therefor, payable to Sophia Vreeland, or bearer. This note is now held by the administrator as part of the estate of Enoch J. Vreeland. The balance, $600, was paid by note, dated May 1st, 1861, which was inventoried by the administrator, and afterwards paid to him. He put it all out at interest in his name, and holds the notes as securi- ties. Hayes, for the appellants. 1. The administrator must make good the amonnt of the small items for which allowance was made. He knew that one of the parties was not responsible. He should have required security. Having failed to do so, he has become responsible by his negligence. 2. The $2000 is not due Mrs Vreeland. The money was mixed with her husband's, and so became part of his general pro[)erty. The act of 1851 {Nix. Dig. 282) refers to specific chattels, furniture, &.Q. Wortendyhe, for the respondents. We base our claim for $2000 upon the principle contained in the acts of 1851 and 1852. These enactments limit the property of the wife to her separate use, as if it had been granted to her separate use; as if, before the statute, it had been so granted. 1. The sale or transfer by Mrs. Vreeland to her brothers was not a strict sale, but a fair compromise or adjustment of OCTOBER TERM, 18G3. 517 i Vreeland v. Vreeland's Adm'r. what ought to have been done by the will. Hence witnesses called it a legacy. If the inheritance was the property of the wife, it comes within the policy of the married women's and widows' acts. {Nix. Dig. 503, 282.) * The bond was given in her name, in the j^reseuce and with the assent of her husband. Lawrence Ackerman paid §1000, whicii was invested in bond and mortgage. Abraham paid $400 in cash, which was loaned by the administrator, and note taken therefor, payable to Soj)hia Vreeland, or bearer. The §600 he paid first by note, and eventually in cash. It was put out at interest by the administrator, in his name, and he now holds the notes therefor. The money was, therefore, in the estate. Richard Berdan swore, that Enoch J. Vreeland said the money was his wife's. He intended to separate that money. That intention was in course of execution. This question has been up in courts of equity before now. It is not material whether you call it a debt or any other claim. 2 Williams on Ex^rs lQ'2d ; State \. Reigavt, 1 Gill 1, note. No question was raised about the money not having been paid. No inquiry was made as to how it was paid. By the very filing of the account it is appropriated to the use of Mrs. Vreeland. Moslier v Hubbard, 13 Johns. R. 510. 2, As to the items sold and money not collected. 2 Wil- liams on Ex^rs 1630-1629 ; Meeher v. Vanderveers Ex'rs, 3 Green's B. 292. Reasonable care and proper diligence only required. 11 Wend. 361 ; 6 Haht. R. 145. Bradley, in reply. I. The administrator having never paid this money, cannot be allowed a credit for it. Dayton on Sarr. 508-9 ; Willcox V. Smith, 26 Barb. 346. If it were a debt due himself, so as to give him the right of retainer, he might have appropriated it ; but he has not 518 PREROGATIVE COURT. Vreeland v. Vreeland's Adm'r. the prerogative of assuming the debts of the intestate as his own, and of pocketing so much money as will be sufficient to pay tiiem. He may not pay them ; they may never be de- manded. If tiiey are not paid, the benefit belongs to the estate and next of kin, and not to the administrator. The Orphans (^ourt cannot adjudicate disputed claims, ex- cept in cases of insolvent estates. Ililler v. Pdtit, 1 Hair. 421 ; Nix. Big. 281, § 29 ; 589, § 70, 71. The administra- tor puts it forward as an experiment on the court, in order to make the court the tribunal for the collection of the debt. The appellants question the widow's right to recover that money. Let her resort to the proper tribunal to establish her claim. Or, if the administrator will take the responsibility of paying her, let him do so, and then bring in another account. It would open the door to great frauds, to allow an execu- tor or administrator to credit himself with the debts of an estate without having paid them. He might never pay them at all, and leave them as an en- cumbrance on the legatees and next of kin. He might never have to pay them, and thereby make a clear gain out of the money belonging to the estate. He might compromise them at less than the amount charged for. The administrator cannot claim this allowance, as for money received by mistake. No money of the widow stood separate from the intestate's property. Johnson v. Corbert, 11 Paige 265. II. The widow, Sophia Vreeland, is not entitled to recover this claim of the administrator in any tribunal. 1. Not under the widow's act of 1851. [Nix. Dig. 282.) By that act, the widow is entitled to demand of the admin- istrator " all such goods and chattels, choses in action, or other personal property which at coverture belonged to her, or which, during coverture, came to her by bequest, gift, or inheritance, and which, at her husband's death, remained \n his possession," OCTOBER TERM, 1863. 519 Vreeland v. Vreeland'a Adra'r. This ^2000 came to her undoubtedly, during the coverture, by " inheritauce," not bequest, as alleged iu the account. But it did not remain " iu her husband's possession at his death." In order that her property may remain in his pos- session, it must be capable of identification. If it was money, and was lent or (/Iven to him, or allowed to be mixed with his money, it became his, not hers. It be- came a mere debt, but not a legal debt, for a man cannot owe his wife a debt ; a contract cannot be made between them. Her property iu it ceased as soon as its identity was lost. It was then a mere debt, which, as between husband and wife, is extinguished as soou as created. As soon ixs, property ceases, debt arises. 2. Nor is she entitled to recover this money under the married women's act of 1852. {Nix. Dig. 503.) " The real and personal property of a married woman, with its rents, issues, and profits, shall not be subject to the disposal of her husband, but shall be her sole and separate ])roperty, as if she were single." Section 2. This relates to property in existence when the law was passed. " It shall be lawful for a married woman to receive by gift, grant, devise, or bequest, and hold to her sole and separate use, as if she were single, real and personal property, and its rents, issues, and j)rofits, and the same shall not be subject to her husband's disposal, nor liable for his debts." Section 3. But if she does not choose to receive it; if she chooses to hand it over to him, and let him mix it with his own, she loses it. Slie cannot lend it to hivi. They cannot contract together. No debt can be created between them. She cannot deal with her husband in that way. 3. Besides, this ^2000 was in part in consideration of the husband's release. He was entitled to curtesy in the lands, and his release obtained. Hoss v. Adams, 4 Dutcher 160; Naylor v. Fidd, 5 Dutcher 292. 4. The declaration of Richard Berdan, that Enoch J. Vree- land told him that Mrs. Vreeland had $2000 to put out, and 520 PREROGATIVE COURT. Vreeland v. Vreeland's Adm'r. that he got $1000 of it, is not competent evidence. Boykm V. Meeker, 4 Butcher 274. 3Ir. Bradley further cited and reviewed the following cases : Jackson v. Miller, 1 Dutcher 90 ; Ex'r of Henry v. Dilley, Ibid. 302 ; Johnson v. Farker, 3 Dutcher 239 ; Van- note V. Downey, 4 Dutcher 219; Wheaton v. Cooper, 1 Beas. 221 ; (ry-em v. Pallas, Ibid. 267 ; Pentz v. Simoiison, 2 5eas. 232 ; Wilson v. Brown, Ibid. Ill ; Skillman v. Skillman, Ibid. 403 ; 3 Rev. Stat. {N. Y.) 183, § 81 ; 3Iagee v. Vedder, 6 Barb. 352 ; Wilson v. Baptist Educ. Society, 10 .Bar6. 308, 316, 320; Disosway v. 5a?iZ; of Washington, 24 Barb. 60; ^?uZ/-m-s V, Wallace, 29 Barb. 250 ; Dayton on Surr. {1S61) 378, 552, and note. The Okdinary. The administrator of Enoch J. Vree- land, upon the settlement of his accounts in the Orphans Court, among other items for which he claimed credit, prayed allowance for $2000, "amount received by Sopiiia Vreeland (widow of the intestate), by bequest from her father during coverture with the intestate, and which, at his death, remained in his possession." Exceptions filed to the account by tiie next of kin of the intestate, were by the de- cree of the court overruled, and the account was allowed as audited and stated by the surrogate. From this decree the exceptants appealed. The material question in the cause is, whether the sum of $2000, which formed the subject of exception, was in fact the j)ro])erty of the widow, or whether it belonged to the estate of her husband. It is admitted that the sum of $2000 came to Mrs. Vreeland during her coverture, in the year 1855, from the estates of her father and mother, and tiiat it passed into her husband's hands and was inventoried. Her mother died about the year 1850, seized of certain real estate. Her father, Abialiam L. Ackerman, died on the 9th of April, 1855, intestate, whereupon his children became each entitled to a share of his estate, as well as of the estate of the mother. In December, 1855, Lawrence and Abra- OCTOBER TERM, 1863. 521 Vreeland v. Vreeland's Adm'r. ham Ackerraan, two of the sons of Abraham L. Ackerman, agreed with their sisters to give them each $2000 for their respective shares of their fatiier's and mother's estates. In fulfilment of this agreement, on the 24th of December, 1855, I^awrence and Abraham Ackerman gave to Mrs, Vreeland for her share, their joint and several bond for .^2000, ])ayable on the first of May, 1856. This bond was given to Mrs. Vreeland with the knowledge and assent of her husband, M'ho, thereupon, joined with his wife in a conveyance to her brothers, of all the real estate which she inherited from her mother. It is clear that the property, both real and ])er- sonal, was the property of the wife, and by operation of the " act for the better securing of the property of married women," became her sole and separate property, and was not subject to the disposal of her husband. It is true that she had no power of aliening or disposing of the property, ex- ce[)t by the consent and with the concurrence of her hus- band. She had the right of ownership, without the power of disj)osing of it. That power the statute does not confer. Had the property remained in her possession undisposed of, upon the death of her husband, it would have been hers absolutely. It would have formed no part of her husband's estate. Is that title lost by her settlement with her brothers, and receiving their bond in lieu of the estate to Avhich she was specifically entitled ? Had she accepted, in lieu of her property, a bond made payable to her husband, so unequivo- cal an exj)ression of her will, might be regarded as evidence of her intention that the property should become her hus- band's. But the bond was taken in her own name, and was made payable to her, her executors, administrators, or as- signs. Such bond was a valid instrument in the wife's favor at common law. The husband, it is true, by virtue of his marital rights, acquired a qualified right to the property. He had the right, during the joint lives of himself and wife, to collect the money and appropriate it to his own use. If he survived the wife, it was his. But if the husband died without VQ 522 PREROGATIVE COURT. Vreeland v. Vreeland's Adm'r. diicing the ch()Se in action into possession, it remained the property of the wife. 2 Bl. Com. 4o4 ; 2 Kent's Com. 135; Ckmci/s Hasb. & Wife 5. But the right of the husband to the wife's choses in action, as well as to her other property, real and personal, was ex- tinguished by the act of 1852. The bond in question, accepted by the wife in lieu of the specific personal and real property which she took by inheritance, remained absolutely hers as if she were a single female, and was not subject to the dis{)Osal of her husband. How has her title to that property become extuiguished ? How has the husband ac- quired title to it? It must be borne in mind that she had both the, legal and equitable title to the bond, and to the proceeds of it. She never assigned it to the husband. If she had done so, the assignment would have been inopera- tive and v(tid at law. She can make no valid contract with any one, much less with her husband, for the transfer of her legal rights. But it is insisted that the facts, that the bond at its maturity was paid to the husband, and was subsequently invested by the husband in his own name, without objection on the part of the wife, and the interest received by him, are plenary evidence of the transfer of the property from the wife to the husband, and of the determination of her interest. That undoubtedly would have been the effect of the collec- tion of the money by the husband, with or without the wife's consent, prior to the enabling act of 1852. But since the passage of that act, she takes and holds the property as a single female. If, as a single female, she had permitted a third person, or if, as a wife, she had permitted a person other than her husband, to receive and collect her moneys, and invest them in his own name, it would have afforded no evidence of the renunciation of her right, or of his owner- ship of the property. He would be regarded, both at law and in equity, as her agent or trustee. The reduction of the choses in action into possession by the husband, without the consent of the wife, cannot change the title of the property. If by marriage settlement, the estate of the wife be secured \ OCTOBER TERM, 18G3. 523 Vreeland v. Yreeland's Adm'r. to lier separate use, the husband is accountable for tliat part of it which comes to his hands. 2 Kent's Corn. 1G4. Irre- spective of tiie right of the wife under the act of 1852, it is not every reduction by the husband of the clioses in action into possession, that will vest the property absolutely in the husband. The ownershij) follows the wmII of the husband. Hinds' Edate, 5 U'haiion 138 ; Barron v. Barron, 24 Vt. 375 ; 2 Bl. Com. 434, 7w(e 2, % Shars7.vood. The reduction into possession is, in all such ca^.es, prima facie evidence of the conversion to his use. He is exercising a right which the law gives hira over his wife's choses in action. But under the enabling act of 1852, the husband has no such right over the choses in action of his wife. " The absolute interest is in the wife. A conversion of them by the hus- band to his own use, is a violation of that right. The law, therefore, will not presume, that from the mere reduction of the wife's choses in action into possession, he intended to convert them to his own use, in violation of the rights of the wife. Nor will the wife's assent to the reduction by the husband of her choses in action into possession, for the mere purpose of re-investment, be evidence of her assent to its con- version to the use of the husband. There is in the case no evidence of the intention of the husband to convert the property to his use, or of the assent of the wife to such con- version, other than the mere fact that the money due on the bond having been paid to the wife, was permitted to be in- vested and re-invested by the husband in his own name, and that the interest was collected by him. These circumstances, in themselves, are not evidence of the conversion of the wife's ])r()perty to the use of the husband. But the right of the wife does not rest upon this evidence alone. It is shown that an application for a loan of money having been made to the husband shortly before his death, he told the appli- cant that his wife had $2000, and he would see what she had to say about it. And he subsequently stated that his wife had given her consent, and thereupon made the loan. Now it must be admitted that this evidence is utterly inadequate 524 PREROGATIVE COURT. Vreeland v. Vreeland's Adnj'r. to prove a transfer of property from the husband to the wife, but it is, nevertheless, competent as tending to evince the absence of intention on the part of the Jjusband to con- vert the wife's money to his own use. Upon a question be- tween the estate of the husband and the wife, . I see no objection to tlie competency of this testimony. In Gray^s Estate, 1 Barr. 327, it was held, that a husband's disclaimer of conversion to his own use, at the time of reducing his wife's choses in action into possession, may be established by his subsequent admissions. Nor is the case materially altered by the fact, that the husband is permitted to take and use the interest of the money while it remains in his hands. That may be done for the joint benefit and support of the husband and wife, while they live together. In fact, the nature of the relation is such, that while it continues, neither can orflinarily have a sole and exclusive enjoyment of their individual property. If the wife's property consists of lands, and she lives upon it, the husband may enjoy it jointly with her. If of chattels in her possession, the husband may use them. Tlie legal rela- tion of husband and wife is so intimate, that it necessarily involves, to some extent, a common use of their individual property. It was not intended that the statute for the better securing the property of the wife, should impair the intimacy and unity of the marriage relation. Walker v. Reamy, 12 Casey 414; Naylor v. Field, 5 Dutcher 292. It is clear that the intervention of no trustee is essential to protect the legal rights of the wife. That is the necessary result of the enabling act of 1852. Her property is protected in her own hands, as well against the claim of the husband, as against strangers. She may receive and hold property in her own name, as if she were a feme sole. But though she may hold, she cannot manage the property without the intervention of an agent. She can make no valid contract in regard to it, nor can she enforce its collection, without the intervention of her husband. Admitting that the funds of the wife may lawfully be en- OCTOBER TERM, 1863. >zo Vreeland v. Vreeland's Adm'r. trusted by her to a third person for investment, why shouhl she be compelled to have recourse to such agency ? Or why shouhl the mere fact that they are entrusted to the manage- ment and control of her husband, be evidence of the renuncia- tion of her rights, or of the transfer of her property? It would seem that there is no one to whom the care of the wife's ])ropertv can more naturally, and with more proj)riety be entrusted, than the husband. And if, while they are living together, he is permitted to take the interest or profits of the estate for their mutual benefit, or for his own use, it should, as between the husband and wife, raise no presumption pre- judicial to lier rights. I say as between the husband and wife, because it is obvious that, as it regards the interests of third parties, the possession and control of the funds of the wife by the husband in his own name, may create equities and give rise to questions of fraud, which will involve very different considerations. It has been held in tlie state of New York, that where the husband, by the permission and agree- ment of the wife, has the exclusive control of her separate estate and its accumulations, by means whereof he is enabled to obtain credit and carry on trade, the property is liable to the claims of the husband's creditors. Sherman v. Elder, 1 Hilton 476. It is worthy of notice in this connection, that the enabling statutes of the state of New York confer upon married women, powers in regard to the disposition and management of their estates, not conferred by the laws of this state. The statute of 1848, as amended by that of 1849, enables a married female not only to take and hold her proj)erty to her separate use, but also to convey and devise real and personal j)roperty, and any interest therein, in the same manner and with like effect as if she were a feme sole. And by the act of 1860, it is enacted that her sole and separate property may be used^ collected, and invested by her in her own name. In the case now under consideration, the question as to tins, title of the property, is exclusively between the wife and tht' estate of the husband. The question is embazr:'^seJ b" ui^ Vol. I. 2 k 52G PREROGATIVE COURT. Vreeland v. Vreeland's Adni'r. intervening equities, or claims of creditors. There is a large surplus in the hands of the administrator, to be distributed agreeably to law. I think the wife is clearly entitled to the sum of §2000, for which allowance is claimed by the admin- istrator in his account. It was urged upon the argument, that the second section of the act of 1852 relates only to the property in existence when the act was passed. I have never untlerstood that this was the true construction of the statute. A directly contrary interi)retation has been adopted, both in this state and the state of New York, where, with the exception of the last clause, the language of the section is identical. It is the settled rule of construction in New York, that the second section of the act has no application to property which a wife, married before the act took effect, had at the time of the marriage, or had already acquired during cover- ture, but that it a})plies to after acquired })r()perty of females, married piior to the act. Snyder v. Snyder, 3 Barb. 621 ; Holmes v. Holmes, 4 Barb. 295 ; 117r/^e v. White, 5 Barb, 474; Hard v. G/ss, 9 Barb. 3GG ; Perkins v. Cottrell, 16 Barb. 446; Smith v. Colvin, 17 Barb. 157; Watson v. Boii- ney, 2 SandJ. S. C. R. 405 ; Kelhj v. McCarthy, 3 Bradf. 7. In the case of Ex'r of Henry v. Dillcy, 1 JJutcher 302, it was held that the act operated as a protection of the rights of property of the wife, existing at the time the act took effect. But it was not decided in that case, nor was it intended to be decided, that the act related only to subsisting rights. The question was, whether the second section of the act was de- signed at all to affect subsisting rights, and if it was so in- tended, whether it was not an unauthorized interference with the vested interest of the husband in the [M'operty of the wife. Admitting the decision in that case to have been correct, it does not support the position, that tlie section relates only to the property in existence when the law went into operation. Nor does the case of Vannote v. Boivncy, 4 Butcher 219, nor any other reported case which has been referred to, sustain the doctrine contended for. OCTOBER TERM, 1863. 527 Vreeland v. Vreeland's Adm'r. The decree of the court below can derive no support from the provisions of tlie act of March 12th, 1851, for the relief of widows in certain eases. Nix. Dig. 282, § 35. That act, by its terms, extends only to the specific chattel, chose in action, or other personal property, which belonged to the wifo at her marriage, or which subsequently came to her, and which remained in the hands of the luisi)and unchanged, at his death. Had the bond given to the wife during her cov- erture remained in the hands of the husband until his death, the case woulil have fallen within the operation of that Ptatute. But the bond having been collected by the husband, and the funds, in whole or in part, invested in his own name, it is clear that the widow cannot claim the protection of the act. The act of 1851 eifected no change in the rights of the widow to her choses in action, acquired before, or during her coverture, and remaining in- the hands of the husband at the time of his death. But, in terms, it transfers the title to the wife's chattels in possession of the husband, from the estate of the husband to the wife, saving the rights of the husband's creditors. It is further urged that this claim is disputed, and there- fore, is not the proper subject of adjudication in the Ori)hans Court; that the exception should have been allowed, and the widow compelled to resort to the ordinary tribunals of law or equity for the recovery of her claim. Our statute has con- ferred no authority upon the Orphans Court to try disputed claims, except in the case of insolvent estates. In such case, either the executor or administrator, or any person interested, may file exceptions against the claim of any creditor, and the court are to hear the i)roofs, and decree and determine in re- gard to the validity of the claims. In all other cases it is a settled principle, that the Orphans Court is not the proper trll)unal for the trial of disputed claims. But by a disputed claim here, is meant a claim which is disputed by the execu- tor or administrator, not a claim which the legatee or next of kin may deem unfounded or unjust. If the executor or administrator disputes the claim, or re- 528 PREROGATIVE COURT. Vreeland v. Vreeland's Adm'r. fuses to pay it, the Orphans Court cannot allow it, or compel the executor or adoainistrator to include it in his account. To justify the Orphans Court in allowing a claim against an estate, it must appear that the executor or administrator as- sented to, or recognized it as a debt due from the estate. Wilson V. Baptist Ed. Soc, 10 Barb. 320 ; A7idreu-s v. Wal- lace, 29 Barb. 350 ; Disosway v. Bank of Washington, 24 Barb. 60. But if" the executor or administrator admit the claim and pray allowance for it in his account, it is not a disputed claim within the meaning of the rule, and falls properly within the jurisdiction of the Orphans Court. The administrator is the legal representative of the estate, and as a general rule, he may, at his discretion, and without the assent of those inter- ested in the estate, pay or compromise any claim against it, even though barred by the statute of limitations. Claims against the estate paid by the executor or administrator, con- stitute properly a part of his account. If the claims are ille- gal or unfounded, the charges in the account are open to ex- ception, and thus the question is brought within the jurisdic- tion of the Orphans Court. It is further insisted that the claim was not in fact paid, and that it was not a proper charge against the estate by the administrator, until it was paid by him. The mere fact that a debt or legacy has not been actually paid, constitutes no objection to its allowance upon the settlement of the account, if its existence is clearly established. Accounts are thus frequently settled, where the legatee or creditor is absent, or not in a situation to receive payment. By the settlement, the executor or administrator becomes liable for the amount thus allowed. No prejudice is occasioned to those interested in the estate. But it is urged that the administrator is, or may be, unwilling to assume the responsibility of paying the claim, but by collusion with the claimant, claims allowance for the debt, in order thus to withdraw the cognizance of the question from the ordinary tribunals of law or equity. There is, to my mind, much force in the objection. And had this OCTOBER TERM, 1863. 529 Vreeland v. Vreeland's Adm'r. exception been taken in the court below, before evidence bad been heard ujion the merits, and Iiad the court been called upon, then, to strike the item from the account, upon tiie ground now urged for reversal, I think the objection should have been sustained, and if overruled, it would have pre- sented a just giound for reversal upon appeal. But it does not appear that this was made a ground of objection before the Orphans Court, either before the evidence was taken and the hearing had upon the merits, or at any stage of the pro- ceedings. It was, in fact, not made the ground of exception in that court, although it appears upon the face of the ac- count, that no voucher had been taken for the payment of the money, and the form of the claim shows that the money had not been paid. Nor is this objection made the ground of appeal in this court. The specific ground of appeal is that " the item of $2000, claimed by the administrator as due to So[)hia Vreeland, and allowed by said decree, is un- just and illegal, the said Sophia having no just or legal claim to the same." It would seem, from the proceedings in the court below, that the parties voluntarily submitted the ques- tion upon the merits to the decision of the Orphans Court, ft)r the pur{)oso of having it decided in the most easy and expeditious mode. Under these circumstances, I do not think that it lies in the mouth of the a[)pellant now to com- plain, that he is deprived of a hearing before the ordinary tribunals of justice, or before the Court of Appeals in the last resort. And as the claim has manifestly been made in good faith on the part of the widow, as there is no reason for suspect- ing the existence of collusion, or a want of good faith on tiie part of the administrator, as there has been a full and fair liearing and decision u[)on the merits, I do not feel justified in now turning the parties around, and permitting the appel- lants to try the experinjent of obtaining a different decision in another tribunal. Exceptions were also taken to two small items of the ac- count, being respectively for ^11.81 and $55.08, for which 530 PREROGATIVE COURT. Vreeland v. Vreeland's Adm'r. the administrator prayed allowance as ''desperate." The exceptions were disallowed in the court helow. And this con- stitutes another ground of appeal from the decree. The items consisted of two vendue accounts for goods, which were included in the inventoiy, and which were sold by the ad- ministrator upon credit, without security. The purchaser of the smaller bill was known at the time to be irresponsible, but the goods were taken away by him without permission. The other purchaser was regarded as solvent. He gave his note for the amount of his purchase, without security, pay- able on dt'n)and to the administrator, in his individual name. It is a fundamental principle, that the administrator is ac- countable for all proj)crty of the deceased which came to his hands to be administered. He cannot be relieved from this accountability on the ground of loss, where the loss was oc- casioned by any default of his own. It is a well settled rule, both in England and in this state, that if executors, administrators, or other trustees, loan money without due security, they are liable in case of loss. Loans made on private or j)ersonal security, are at the risk of the trustees, who are personally answerable if the security prove defective. To afford complete indemnity to the trus- tee against the hazard of responsibility for loss, the invest- ment must be made in government sto(!ks, or upon adequate real security. Oray v. Fox, Saxton 259; 2 Williams on Ex'rs 1539, 1541. Sales by executors and administrators, both of real and personal estate, are regularly made for cash, without credit ; or by sanction, and under the direction, of some judicial tri- bunal, prescribing the extent of the credit and the natiu'e of the security. In some of the states of the Union, personal ])roperty is thus sold by direction of the Ordinary, and usually upon personal security. In this state a practice has long prevailed, of permitting an executor or administrator to sell personal property, either for cash or upon short credits, with approved personal secu- OCTOBER TERM, 1863. 531 Vreeland v. Vreeland's Adm'r. rity, at his discretion.. The custom of selling upon short credits, and upon personal security, without direct judicial authority, has been sanctioned by long and general usage. In practice, it is advantageous to the interests of the estate, Higlier prices are obtained, and usually without loss. Cash sdles will, in most cases, necessarily be made at lower rates. Where sales are thus made, and security taken with due caution, the executor or administrator is chargeable with no default, and is not liable in case of loss. But in this case, the administrator made the sales in question upon the per- sonal liability of the purchasers, without security of any kind. In the one case no note was taken ; in the other, the indi- vidual note of the purchaser. One of the purchasers was known to the administrator to be unworthy of credit; the other, from whom the note was taken, was supposed to be re- sponsible. The conduct of the administrator in both cases was entirely indefensible. I know of no practice to countenance it, and no principle upon which such practice can be justified. On the contrary, I believe the principle to be of universal aj)- ])lication, admitting of no exception or qualification, that an executor or administrator cannot sell and part with the pos- Bession of assets which have come to his hands to be admin- istered, without requiring security for the price. If he sell under judicial sanction, he must pursue strictly the order of the court. If he sell upon credit, without judicial sanction, and upon his own discretion, he must use due caution in ob- taining adequate security. If he do otherwise, he acts at his peril ; and if a loss is sustained by the insolvency of the purchaser, he is giuilty of a devastavit. I am not aware of any judicial decision upon the point in this state, but I regard the j)rinciple as unquestionable, and it is sustained by abundant authority in other states. In Kinff v. King's- Adin'rs, 3 Johns. Ch. R. 552, the ad- ministrators sold the leasehold estate of the intestate on credit, and took a ])roraissory note of the purchaser, without Becurity. The jiurchascr paid part of the purchase money, but became insolvent before the residue could be collected. 532 PREROGATIVE COURT. Vreeland v. Vreeland's Adni'r. The administrators were held responsible for the loss. The Chancellor (Kent) directed that they should be charged with the whole amount of the purchase money, lujlding them guilty of negligence in parting with the leasehold estate without payment or security. The principle is sustaiticd by numerous authorities. Orcutt v. Orms, 3 Paige 459 ; Slukes v. Collii'is, 4 Dcsaus. 207; Masse;/ v. Cureton, Chcves 181; O'Dell v. Young, 1 Mc3Ia/lan's Eq. 155 ; Dillebauglis Estate, 4 Watts 177 ; Jolinstoii's Estate, 9 Watts & Serg. 108. J have dwelt thus long upon this point, which seems too clear to admit of doubt or to require discussion, because the administrator was not charged with this loss by the respected tribunal by whom this cause was originally decided. I have looked with some solicitude, to discover the ground upon which that decision could have l)een based. It may have been, because they believed tiiat the administrator acted ia good faith. I entertain no doubt that he tlid act in entire good faith, but if the mone^' was lost by his default, the purity of his motives cannot relieve him from his obligation to make good the loss. Or, ihe court may have decided, upon the pVinciple that the executor was bound only to use ordinary caution in the management of the estate. That principle is admitted. An executor or administrator is bound to use the same caution and circumspection, that a prudent man would use in the conduct of his own concerns. But no prudent man, influenced by the ordinary motives of self interest, and acting with due caution, will let out his money or sell ])roperty on credit, without a responsible security for its payment. But the more decisive answer to the suggestion is, that in parting with the assets of the estate to a purchaser without security, the administrator was vio- lating his duty, and was guilty of a default. The law allows no exercise of discretion uj)on that point. He is bound to require security. In deciding what security lie will accept, he acts at his discretion. He is bound to use ordinary cau- tion only, and if the security ])rove inadequate, the adminis- trator, acting in good faith, is not responsible. The case is not altered by the fact that the goods were removed \>y one OCTOBER TERM, 18G3. 533 Culver V. Brown, of the purchasers, without the knowledge or consent of the administrator. He took no step to obtain security, or compel a restoration of the goods. The a(hninistrator is responsible for the loss sustained by the neglect to require security. Both claims should have been disallowed, and the decree and account must be corrected ac- cordingly. In all other respects the decree is affirmed. The main question involved in the cause was novel and ]>roper to be heard before this court. Costs will be allowed to neither party as against the other. Cited in Horner v. Webster, 4 Vr. 399-404-410-414 ; Echcrt v. Beuler, Id. 268. John Culver, appellant, and James Brown, respondent. 1. The design of the act of 1850, {Nix. Dig. 590, | 3,) supplementary to tlie Orphans Court act, was, tiiat notice should be given to the ward, of an intended settlement by his guardian. No notice to, or appearance by the guardian, can be a waiver of the notice prescribed by the act. 2. Fifteen per cent, commissions having been allowed by the Orphans Court, the law authorizing but seven per cent., decree must be corrected. This case came before the Ordinary on appeal from a decree of the Orphans Court of the county of Middlesex. Schenck, for appellant. Leupp, for respondent. The Ordinary. The appellant having settled his final account as guardian of the respondent, before the Orphans Court of the county of Middlesex, the court, by a subsequent order, opened tjie account and decree thereon, and permitted the ward to file exceptions to the account. From this latter decree the guardian has appealed. Culver was appointed guardian of the respondent on the 634 PHEROGATIVE COURT. Culver V. Brown. 20th of March, 1844, the ward then being under seven years of age. When his office was determined, does not appear. His last disbursement for the ward was under date of the 16th of June, 1852. On the 18th of January, 1856, he de- livered over to David Yates, the newly aj>pointed guardian, fifty dollars as funds belonging to the ward. At the term of December, 1857, he exhibited his final account as guardian, for settlement and allowance, no previous settlement having been made. On the 12Lh of January, 1858, a decree was made for the settlement and allowance of the account. On the 29th of the same month of January, on the application of the ward, a rule was granted to show cause why the de- cree should not be set aside, and the account opened. Evi- dence having been taken, the ride was made absolute on the 12lh of March following. The decree opening the account, appears, by its recital, to have been made for errors, irregu- larities, and mistakes made manifest. It is insisted by the appellant that the decree was erro- neous, because there is no evidence, either of fraud or mistake, and that, by the terms of the statute, the decree upon the final settlement and allowance of the account, is conclusive upon all parties. NLv. Dig. 581, § 27. I incline to think that the decree for the settlement and allowance of the guardian's account was a nullity. It does not appear by the evidence that the settlement of the account was adveitised, or that any notice thereof was given to the ward, nor can it be gathered from the proceedings in the Or- phans Court, that any such advertisement or notice was given. On the contrary the decree itself, as if by way of substitute for the legal notice, states that Brown, the minor, appeared by his guardian, David Yates. Yates, on his examination, testifies that one, two, or three days before the term, Culver spoke to him about the settlement of his account. He adds : '' I told him I would be there, and that it would not be ne- cessary for him to serve a notice on me. That he could settle with the court, and I would examine it afterwards. I don't OCTOBER TERM, 1863. 535 Culver V. Erown. know anything about the account, whetlier it is correct or otherwise. I never saw it." Tlie act of 1855, {Nix. Dig., 1st ed., 562, § 8,) requires that in addition to the notice then required by law, the guardian shouh] give to all the wards interested in the account to be settled, thirty days notice of his intention to settle his ac- count. The act of 1856, {Nix. Dig. 590, § 3,) repeals the eighth section of the act of 1855, and declares that no account of any guardian shall be audited or allowed, unless the guardian shall give at least two months notice of such settlement by advertisement, as j)rescribed in the act. It was ex[)ressly required by the act of 1855, that notice should be given to the ward, and such was the manifest design of the act of 1856. No notice to, pr appearance by the guardian, can be a waiver of the notice prescribed by the act of 1856. The court appear to have proceeded on the erroneous assumption, that the appearance by the newly appointed guardian was a waiver of, or a substitute for, the notice required by the statute. But aside from this objec-tion, the court were justified in opening the account and admitting exceptions to be filed, both on the ground of fraud and mistake. The guardian was appointed in 1844. In 1850, he had sold the real estate of the ward. In 1852, he had made the last disbursement for his ward. In 1853, the ward was in his employ, earning wages. In 1856, the guardian, having been discharged from office, turned over fifty dollars of the ward's funds to his newly appointed guardian, as a balance that was coming to hira. In 1858, a few months before the ward came of age, the guardian, without notice to the ward, or an ojiportunity on his part to be heard, settled his account, showing a balance in his own favor. Notice was indeed given, two or three days before the court, to the newly appointed guardian, of an intention to settle the account, but he had no knowledge of its character or contents, and in waiving notice to himself, and consenting to the settlement, it was upon the manifest 536 PREROGATIVE COURT. Culver V. Brown. understanding on his part, that any error could be subse- quently corrected. An application was made within a few days, to open the account and correct errors, but the ac- countant insisted that the settlement was conclusive against Ills ward. Under these circumstances, the court were justi- fied in holding the settlement fraudulent as against the minor. It may be added, that there is at least one manifest mis- take in the account as settled. As the law stood at the set- tlement of this account in 1858, and as it now stands, the commissions allowed to a guardian, cannot exceed seven per cent, on sums not exceeding one thousand dollars, received and j)aid out. The commissions allowed the guardian iu this case, amounted to nearly fifteen per cent, on the sum re- ceived and paid out. Thi,s, it is true, would not be a ground for opening the entire account, but it shows the necessity of its correction^ and the proj)riety of requiring that the ward should hav^e an opportunity of being present at the settle- ment, and protecting his rights. The decree is affirmed with costs. C^SES ADJUDGED IN THE COURT OF ERRORS AND APPEALS OF THE STATE OF NEW JEESEY, ON APPEAL FROM THE COURT OF CHANCERY JUNE TERM, 1863. JosiAH F. MuiR, appellant, and The Newark Savings Institution and others, respondents. 1. If an agent, in making a loan of money, accept from the borrower a bonus beyond the legal rate of interest, such act of the agent will not render the contract usurious, if the bonus was taken without the knowledge of the principal, and was not received by him. 2. The reservation of interest for money actually on hand and suliject to the call of the borrower, during the time he is engaged in completing his securities, is not usurious. 3. The essence of the offence of usury is a corrupt agreement to contra- vene the law. Any contrivance to evade tlie statute, and to enable the lender to receive more than legal interest for his money, renders tlie con- tract a corrupt one. And the law will infer the corrupt agreement, when it appears by the face of the papers or otherwise, that illegal interest was intentionally reserved, although the illegality arose from a mistaken con- etruction of the law. 537 538 COURT OF ERRORS AND APPEALS. Muir V. Newark Savings Institution. This was an appeal from a decree of the Chancellor. The appeal was argued by ZabrisJde, for a{)peUaDt. Hubbell, A. 3Iills, and C. Parker, for respondents. The opinion of the court was delivered by Elmer, J, The bill filed by the Newark Savings Insti- tution, is (he common bill for the foreclosure and sale of certain mortgaged premises, to pay the balance claimed to be due from tlie appeUant on his bond and mortgage, bearing date July 1st, 1850. To this bill the executor of Abraham Brittin, deceased, was made defendant, so that the amount due on a bond and mortgage given by the appellant to the said Brittin for $3000, dated February 10th, 1S59, might be included in the decree. The executor answered, and prayed to iiave a decree for the sale of tlie property, and the payment of the principal and interest due on the mortgage. The appelhmt, in his answer, set up the defence of usury as against both debts. As to the bond and mortgage to the Savings Institution, the usury is alleged to have arisen in two ways. First, he says that it was agreed between liim and William B. Mott, acting for and on behalf of the complainants, tiiat they would loan to said defendant tlie sum of five thousand dollars, upon condition that defendant v/ould j^ay therefor the sum of one hundred dollars, which lie avows he did j)ay to said Mott, at or about the tisne of the delivery of said bond and mortgage. And secondly, he says, that the said bond and mortgage bear interest from, and are dated July 1st, but that the money was not actually paid over by complainants, or received by defendant, until the ninth of said month. We are not satisfied that the first ground of usury thus set up, is proved to be true. The defendant himself swears to the facts ; but although the statute has made him a com- petent witness, his credibilty is open to question, and we do JUNE TERM, 1863. 539 Miiir V. Newark Savings Institution. not feel justified in deciding tliat a debt, secured by a bond and mortgage shall be discharged by the uncoiToboratcci oath of the [>arty who has made and is bound by them. lis this case, it appears that he has j)aid the interest for many years, and a pait of the principal, and made no complaint of usury during the lifetime of Mott, who alone coidd con- tradict iiim. But if he did j)ay a bonus of one hundred dollars to Mott to obtain this loan, as he alleges, there is not only no evidence that ho had any authority from the institution to receive it, or that the other members of the funding committee, by whose concurrence the loan was made, had any knowledge of the transaction ; but it is proved that they were ignorant of it, and that no part of the money went into the funds of the complainants. This ground of usury, therefore, entirely fails. It appears, as to the second ground, that the money was not in fact |)aid over to the defendant until the tenth of July, and that Mott, who was treasurer, and as such one of the funding committee, made an entry in the books of the insti- tution, as follows : " 1850, July 3d, bond and mortgage ac- count, Dr. to cash for Josiah F. Muir's bond and mortsage on property at Chatham, N. J., $5000." It is insisted for the appellant, that it thus appears the bond and mortgage were made to bear interest several days before the h)an was made, and that this was such an inten- tional violation of the law, as to amount, whatever may have been the motive of the j)arties, to a corrupt agreement, and was therefore usurious. The essence of the offence of usury is a corrupt agreement to contravene the law. Any contri- vance to evade the statute, and to enable the lender to receive more than legal interest for his money, undoubtedly renders the contract a corrupt one. And there is no (hjiibt that the law will infer this corru[)t agreement, when it appears by the face of the papers or otherwise, that illegal interest was in- tentionally reserved, although tiie illegality arose from a mis- taken construction of the law. So it \vas held in the cases to which we were referred. JIarsh v. Martindah, 3 Bosan. £10 COURT OF ERRORS AND APPEALS. Muir V. Newark Savings Institution. & Pull. 154 ; Bank of Ut'ica v. Wager, 2 Coio. 712, and other New York cases of a like nature; Bank of Maine, v. Butts, 9 3fass. 49 ; Williams v. Williams, 3 Green's E. 255. But in the case before us there was no contrivance to evade the statute, nor was illegal interest intentionally reserved. The appllant's own statement is, that he entered into an agreement with the funding committee to take the money, and that they had it on hand subject to his disposal, before the first of July, and that the delay occurred in having the security prepared and executed. The entry in the books of the institution, of the loan on the third of July, cannot be regarded as conclusive proof that the agreement was not en- tered into at an earlier date. As the case is presented, we think we are fidly justified in considering that it was ; it being apparent that there was no design on the ])art of either lender or borrower, to take or to allow illegal interest. No case has been produced, which has held it to be illegal to re- serve or take interest for money actually on hand and subject to the call of the borrower, during tiie time he is engaged in completing his securities. In the case of Kcyes v. Moultrie & Palmer, 3 Basic. 1, the Superior Court of New York de- cided, we think correctly, that a contract of this character is not usurious. We are, therefore, of oj)inion that the decree of the Chancellor, ordering an account to be taken of the amount due on the complainant's bond and mortgage, is cor- rect, and must be affirmed. As to the Brittin mortgage, the allegation is that it was given to secure a loan of three thousand dollars, and that said loan was made upon express conditi(»n that tlie appellant should take, as a part thereof, a horse at the price of live hun- dred dollars, and that said horse was not worth more than two hundred and sixty dollars. If these allegations were ])roved, the defence would be complete. But we are not satisfied that they are. This defence, like that in the case of the Savings Institution, is set up after the death of the party with whom the contract was made. The evidence relied on consists of the appellant's own statements, not made on oath, and some JUNE TERM, 18G3. 541 Muir V. Newark Savings Institution. of which were clearly incnmjietent. There is no satisfactory evidence of the material allegation that the taking of the horse at the price named was a condition of the appellant's obtaining a loan. It appears that he signed a receipt, that he had received Brittin's chock for $2000, three notes of other parties amounting to $540.02, and a four year old stud colt, $500, for whicli he had given his bond and mortgage for $3000, and his note for $40.02 ; but this receipt does not show that the takitig of the notes and the horse was not at his own request. It was insisted that the situation of tlie aj)pel- lant was such that we ought to infer that he could not have desired to j>urchase such a horse. Such an inference, we think, would be very unsafe, and would amount to the sub- stitution of conjecture for proof. Nor is the evidence that the horse was not worth the money agreed to be paid for him, at all conclusive. Several witnesses, it is true, rated him at from $125 to $200 ; but the little reliance that can be placed on such estimates is shown by the fact, that although the horse was stolen shortly after the ])urchase, and considerably injured, he was actually sold for $260. He was certainly a horse of rather remarkable beauty, and several good judges testify that he was worth $500. The ai>pellant himself stated, at the time he was stolen, that he was a valuable horse, worth $500 or $G00. We think the Chancellor's order that an account be taken of the amounts due on this bond and mortgage was correct, and that the whole decree must be affirmed. The decree of the Chancellor was affirmed by the following vote : jPo?' affirmance — Judges Brown, Combs, Cornelison-, Elmer, Fort, Haines, Kennedy, Ogden, Vreden- BURGH, Wales, Wood — 11. For reversal — None. CiTKT) in Washington L. Ins. Co. v. Paterson Silk Mfg. Co., 10 C. E. Or 163. Vol. I. 2 L 542 COURT OF ERRORS AND APPEALS. Norris v. Ex'rs of Thomson. NOVEMBER TERM, 1863. Caroline Norris, Adeline Thomson, and others, appel- lants, and The Executors of John R. Thomson and others, respondents.* 1. To constitute a legacy specific, it is necessary that such intention be either expressed by the testator in reference to tlie thing bequeathed, or otherwise clearly appear from the will. 2. Tliis is not a technical arbitrary rule to be answered only by the use of particular words and expressions, but is an embodiment of the general principles by which the character of legacies should be tested and deter- mined, each will resting for correct construction upon the language em- ployed, and upon established surrounding significant circumstances, if such exist. 3. The language used by the testator in creating and directing the trusts in the will, has a clear reference to tlie stocks and particular bonds which the testator possessed when he executed the will, and shows tliat the testa- tor intended that the legacies should be discharged by his trustees handing over to the respective legatees, stock and bonds which they would find in his strong box after his death. Per Ogden", J. 4. If the language of the will does not come up to the rule laid down in the books, the circumstances by which the testator was surrounded when the will was drawn, and the whole scope and texture of the instrument taken in connection with the particular clauses of bequest, clearly indicate an intention to create a specific legacy. * Note. This case- has been reported, and the opinion of one of the judges is published in 2 McCarter 493. It does not appear that the opinion heretofore published was read in open court, or that the legal principles it announces, were concurred in by any other member of the court. In so far as it may be understood as sanc- tioning rules of construction, different from those announced in the opinion of the court, it can, it is apprehended, only be regarded as the dissenting opinion of the judge by whom it was delivered. Tlie opinion of the court was read by Ogden, J. The construction adopted by the learned judge, being derived from the whole scope and texture of the will, it is thought advisable, in order to a clear understanding of the principles upon which .liis opinion rests, to publish the will at length. — The Reporter. NOVEMBER TERM, 18G3. 543 Norris v. Ex'rs of Thomson. This cause was heard upon appeal from the opinion of the Chancellor (reported ante, p. 218) upon the construction of the will of John R. Thomson, deceased. The will is as follows : " I direct my debfs and funeral and testamentary expenses to be paid, and I appoint John M. Reed, Charles Macalester, and Alexander H, Thomson, my executors. I do hereby give and bequeath, all and singular, the books, ))ictures, plate, china, wines and liquors, and all other house- hold goods and furniture of every kind, which shall be in and about my house at Princeton, and also in and about my house at Washington, and all my horses and carriages to my wife, Josephine A. Thomson. All the rest and residue of my real and personal estate, of whatsoever nature or kind, or wheresoever situate, I give, devise, and bequeath to John M. Read, Charles Macalester, and Alexander H. Thomson, their heirs, executors, and ad- ministrators, in trust fur the following uses and purposes; First. To give to my sister, Mrs. Caroline Norris, two hundred and fifty shares of the capital stock of the New York and Baltimore Transportation Line; to my sister, Adeline Thomson, two hundred and fifty shares of the capi- tal stock of the said line; to my sister, Amelia Read, wife of the Hon. John M. Read, two hundred and fifty shares of the capital stock of the said line ; to my nephew, Alexander Hamilton Thomson, one hundred and twenty-five shares of the capital stock of the said line ; and to my niece, Elizabeth Norris, one hundred and twenty-five shares of the capital slock of the said line. Second!}/. I give to my friends, John M. Read, William H. Gatzmer, Richard Shippen, Dr. Phineas J. Horwilz, anil Joseph P. Norris, the husband of my sister, Caroline Norris, five bonds of one thousand dollars each, of the Delaware and Raritau Canal Compatiy and Camden and Amboy Railroad and Transportation Company, redeemable in 1889, one bond to each of the above named legatees. I also direct to be paid an annuity of five hundred dollars, 544 COURT OF ERRORS AND APPEALS. Norris v. Ex'rs of Thomson. during his natural life, to my brother, Edward R. Thomson, of the United States navy. And I further direct that, from the income of the residue of my estate, there shall be paid an annual sum of ten thou- sand dollars, payable semi-annually, to my wife, Josephine A. Thomson, and I authorize and empower my said wife, by her last will and testament, duly executed, to direct, limit or appoint, give or devise, the portion of the estate so ap- propriated for an income of ten thousand dollars a year for her support, to give or devise the same to and amongst all and every the children of my sisters, Caroline Norris and Amelia Read, and their children, in such proportions, and for sucli estate or estates, as she may think proper; or if my wife so chooses, she may, by her last will and testament aforesaid, direct, limit, or appoint, give or devise the same to and among my sisters, Caroline, Adeline, and Amelia, and their children and grand-children, and my brother Edward, in such proportions, and for such estate or estates, as she may think proper; and my said trustees, their heirs, execu- tors, and administrators, are hereby required to pay, assign, convey and transfer the same to the said appointees, accord- ing to the directions, limitations, apj)ointments, gifts, and devises in the said last will of my said wife. And I further direct that, if the income from my estate, after the payment of the bequests herein before made, shall exceed the sum of ten thousand dollars a year, the sur- plus be invested in good securities, and that my said wife, Josephine, shall be authorized and empowered by her last will and testament, to give and devise the same among such benevolent, religious, or charitable institutions, as she may think proper. And in default of such directions, limitations, and appoint- ments, and so far as the same shall not extend, then to pay, assign, convey, and transfer the residue to my said three sis- ters, Caroline, Adeline, and Amelia, and my brother Edward, their heirs, executors, and administrators, as tenants in com- mon, to whom I give and devise the same. Fourthly, I authorize my said trustees and executors to NOVEMBER TERM, 1863. 545 Nonis V. Ex'rs of Thomson. retain and hold whatever investments I may have at my de- cease, unless requested, in writing, by my wife to change the same. I authorize my said executors and trustees, in either capa- city, to sell and convey all, or any part of my estate, real and personal." The appeal was argued by Zabriskie and Beasley, for appellants. Bradley, for respondents. The opinion of the court was delivered by Ogden, J. The single question presented for adjudication by this case, and upon which the respondents, who were de- fendants in the Conrt of Chancery, as well as the complain- ants, desired the direction and decree of that court, before they could safely act in the premises, is whether the com- plainants, who are legatees named in the last will of John R. Thomson, deceased, take specific or general legacies. The subject matters of the bequests were shares of stock in the New York and Baltimore Transportation Company, and joint bonds of the Delaware and Raritan Canal and the Camden and Amboy Railroad Companies. The characteris- tics of specific legacies being undisputed, the arguments of counsel have been confined to the considerations, whether the language employed by the testator, under the circum- stances by which at the time he was surrounded, ascertained from the relation which he bore to the legatees, the nature of his property, and his presumed purpose not to die intes- tate as to any portion of his accumulations then existing or prospective, viewed and considered in connection with the general disposition he made of his estate, and with the whole texture of the will, manifest a clear intention on his part, that the stock and bonds given by him to the complainants, should be furnished to the objects of his bounty, out of the same species of securities which were held by him clear of 54a COURT OF ERRORS AND APPEALS. Norris v. Ex'rs of Thomson. encumbrance at the date of his will, and retained by him in that condition to the hour of his death, and vested by his will in trustees, on several special expressed trusts. If such intention sufficiently appears from those consider- ations taken together, the respective legacies are specific, and the will cannot be carried into effect, without appropriating and handing over to th^ legatees, the quantum of stock and of bonds, directed to be given to them, in the condition in which they were found by the executors and trustees, after the death of the testator. It is conceded, that if he had directed the trustees to give to his sisters, and nephew and niece, a certain number of shares of his stock, and to his friends five of his bonds, he thereby would have so individuated, by words, the property which he desired that his legatees should have in kind, that a serious question could not have been made about his intention. If, therefore, a like intention is fairly inferable from the lan- guage adopted, taken in connection with the several consid- erations already adverted to, the specific character of the legacies must be determined by such intention. It appears that the will was made in July, 1862, only a few weeks anterior to the testator's death in September, and during, or shortly before, his last sickness, and probably after he had become unfitted, from disease, to engage in ac- tive business. He seems to have retained a perfect knowledge of the amount and nature of his property, and to have been peculiarly conversant with the value, as investments, of the stocks and bonds which he was about to bequeath. He manifestly designed to provide munificently for his wife, and to give to his sisters, and a nephew and niece, portions of his property, from which, in his judgmemt, they severally wou^d reap ample returns. He likewise was mindful of five tried and valued friends, and wished to bequeath to each of them a moderate legacy, as expressive of his estimation of their worth. His confidence in the extent and productiveness of the securities that he held, is manifested by a provision in the will for the investment and ultimate disposition of sur- plus interest and dividends, which he supposed might remain NOVEMBER TERM, 18G3. 547 Norris v. Ex'rs of Thomson. after applying enough of his stock and bonds to discharge the lega<;ies to the complainants, and after paying $10,000 a year to his wife, and likewise an annuity of $500 to his brother. His injunction to the executors and trustees, to hold the stecks and other investments in trust, for the pur- poses of the will, and not to chavge any of them, without the written request of his widow, is additional proof that he was fully satisfied with his own judgment in selecting valuable securities for his moneys, and that he wished those securities to be continued intact until his wife, the person who fully knew his mind on that subject, and who is chiefly interested in the future avails of his property, should deter- mine that a change of any of them would be advantageous to the estate. After directing the payment of his debts and appointing his executors, he commenced disposing of his property, by a specific legacy to his wife, of his books, pictures, plate, and household furniture of every kind, in his mansion-house at Princeton, and in and about his house at Washington, and all his horses and carriages. Then he gave, devised, and be- queathed all the rest and residue of his estate, real and per- sonal, to his executors, their heirs, executors, and adminis- trators, in trust, for certain uses and purposes. By this devise and bequest he transferred to them, as trustees, all the stocks, bonds, and other securities, which he possessed and was en- titled to, having in his mind the purpose of directing them to retain those securities, for fulfilling the requirements of the trusts he was about to declare. He then proceeded to 6i)ocifv the purposes to which the estate thiis put in trust should be applied. First. For his trustees to give to each of his three sisters, two hundred and fifty shares of the ca])i(al stock of the New York and Baltimore Transportation line, and to a ne{)hew and niece each, one hundred and twenty-five shares of the capital stock of the said line ; the testator, at that time, hold- ing 3,680 shares of that stock unencumbered. Secondly. To give to each of his five friends, whom he named, one bond of $1000, of the joint companies, redeema- 548 COURT OF ERRORS AND APPEALS. Norris v. Ex'rs of Thomson. ble ill 1889 ; he, the testator, then holding twenty-nine bonds of that description and class, also free and unencumbered ; and likewise a large number of railroad and canal bonds, then in hypothecation. The unencumbered bonds and shares were su!*ceptible of delivery immediately after his death, while those in pledge could not be under the control of the trustees, until the debts, for which they were hypothecated, were paid. The signifi- cance of this method, in designating by an ear-mark, the property for his legatees, cannot be blinked or disregarded. After directing his trustees to pay an annuity of $500 to his brother during his natural life, he directs that from the income of tlie residue of his estate, provision shall be n^ade for his wife, by paying her a fixed sum semi-annually. What is the natural import of that direction ? What could the testator have meant, except that the fund from which her annuity was to arise, was the i-esidue of the bulk of his estate put in trust, after taking from it the one thousand shares of New York and Baltimore Transportation stock, and the five '89 bonds of the joint companies? Did he contemplate tl)at the dividends on that stock, and the interest accruing on those bonds, should constitute a part of the income from which the first semi-annual })ayment should be made to Mrs. Thom- son ? Could that stock and those bonds be properly consi- dered as a portion of the estate, liable to be apj)ropriated for furnishing an^/ part of her annual income, upon a fair read- ing of that clause in the will in connection with the preceding and following clauses? If such disposition of the stock and bonds entered into the intention of the testator, what mean- ing is to be given to the words " income of the residue of my • estate" as the source from which the annuity should flow? Again. If the legacies shall be held to be general, the itestator died intestate as to the accruing dividends and in- terest on those securities held by him, which result is always ;to be avoided, if practicable ; or he intended that the amounts thereof should fall into that undefiuable surplus of income, which he directed his executors to invest in good securities, ,for appropriation by his wife iu her lust will among benevo- NOVEMBER TERM, 1863. 5i9 Norris v. Ex'rs of Thomson. lent, religious, and charitable institutions. Can this instru- ment he fairly read, in the liglit of all the peculiar surround- ing circumstauces, and such intention be justly imputable to the testator ? The intention of a testator upon the subject of specific legacies, as in every question on th.e construction of wills, is the principal object to be ascertained, and it is therefore necessary, that the intention be either expressed in reference to the thing bequeathed, or otherwise clearly appear from the will, to constitute a legacy specific. 1 Roper on Leg. 193. This is not a technical arbitrary rule, to be answered only by the use of particular words and expressions, but is an embodiment of the general principles, by which the character of legacies should be tested and determined ; each will rest- ing, for correct construction, upon the language employed, and established surrounding, significant circumstances, if such exist. It seems to me that the language used in creating and directing the trusts, was a clear reference to the stocks and particular bonds which Mr. Thomson possessed when he executed his will, and it shows he meant that the legacies should be discharged by his trustees handing over to the re- spective legatees, stock and bonds which they would find in his strong box after his death. If, however, the language of the will does not of itself come up to the rule laid down in the books, the circumstan- ces by which the testator was surrounded when the will was drawn, and the whole scope and texture of the instrument, taken in connection with the particular clauses of bequest, clearly indicate the intention for which the appellants and complainant contend. It is the duty of this court to make such a decree as a majority of the members think the Court of Chancery should have made. In the prayer of the bill, the complainants ask that the legacies of the stock and bonds may be declared to be spe- cific legacies; and that the shares and bonds, together with the 550 COUrtT OF ERRORS AND APPEALS. Hudnit V. Nash. divideiuls, interest, and income, accrued and accruing thereon, may be transferred and paid to the several legatees thereof. The decree of the Chancellor adjudging the legacies to be general, and that so much of the bill as prayed for the pay- ment of the income and interest, bje dismissed, should be re- versed, and this court should decree the legacies to be specific, and that the income and interest should be paid to the lega- tees, according to the prayer of the bill. The papers should be remitted to the Court of Chancery, with such instructious. Affirmed, 5 C. E. Gr. 489. MARCH TERM, 1862. Samuel B. Hudnit and Gabriel H. Slater, appellants, and Tobias Nash, respondent. 1. The well settled rule in equity is, that if the lender comes into court seeking to enforce a usurious contract, equity will repudiate the contract. But if the borrower seeks relief against the usurious contract, the only terras upon which llie court will interfere, are that lie shall pay what is really and bona fide due. 2. A bill for foreclosure by a second naortgagee, making the first mort- gagee a defendant, as against such first mortgagee, is, in efiect, a bill to redeem, not to foreclose. 3. The first mortgagee is not a necessary, nor a proper party to a bill by a subsequent mortgagee, if the sole design of the suit is a foreclosure of the equity of redemption. Technically, all that can be asked in such case is, that the complainant be permitted to redeem the prior encumbrance. 4. Where, as in our practice, prior encumbrancers are permitted to be made parties to a bill for foreclosure and sale of mortgaged premises, if the first mortgagee, defendant in such bill, comes in with his mortgage, he simply assents to the relief prayed for by the complainant. 5. As against the first mortgagee, the relief prayed for will not be granted, unless by his consent, or upon payment of the amount actually due upon his mortgage. 6. Where, to a bill for foreclosure, the answer of the owners of the equity of redemption raises the defence of usury to the mortgage of a co-defend- ant, such answer is in the nature of a cross-bill, seeking relief against the usurious mortgage. MAECH TERM, 1862. 551 Hud 11 it V. Nasli. 7. Upon a bill filed by a second mortgagee for foreclosure, and seeking to avoid the first mortgage as usurious, no decree will be made declarinf, the usurious mortgage a valid encumbrance for tiie amount actually ad- vanced, unless by the consent, express or imiilied, of the owners of tut equity of redemption, to the proceedings. 8. But if the parties interested iri the equity of redemption, concur in th- prayer of the bill by resisting the usurious mortgage, and the cause i. brought to final hearing upon the pleadings and proofs, a decree pronounc- ing tlie mortgage usurious, and declaring it an encumbrance only for thi: amount actually advanced, will not be reversed at the instance of the; owner of the equity of redemption. This was an appeal from a decree made by Whelpley, Chief Justice, sitting as judge in equity, in the Circuit; Court of the county of Hunterdon. The bill was filed by Peter Polhenius to foreclose a mortgage given by Francis McCue and wife, on the 6th of April, 1858, to Elisha Warford, to secure the payment of $600 ; and by Warford assigned to the com- j)hiinant. The premises were subject to a prior mortgage given by McCue and wife to Tobias Nash, which mortgage, the bill alleged, was executed and delivered upon an usurious contract between McCue and Nash, and was, therefore, null and void as against the complainant, and no encumbrance upon the mortgaged premises. There was also a third mort- gage in order of priority upon the premises, given by McCue and wife to Luther Opdyke, and by him assigned to John F. Tinsman, also one of the defendants. Subsequent to the date of these mortgages, McCue's right and interest in the premises were sold by the sheriff under an execution at law against him, and purchased by Samuel B, Hudnit and Ga- briel H. Slater, the appellants. The holders of these mort- gages, and the owners of the equity of redemption, were made defendants to ihe bill. Tinsman answered, claiming the amount of his mortgage as a valid encumbrance upon the premises, setting up usury as a defence against the Nasii mortgage. Hudnit and Slater answered, claiming to be the owners of the equity of rcdemj)ti()n, admitting the mortgage of the com- plainant, and also the mortgage of Tinsman to be valid en- 552 COURT OF ERRORS AND APPEALS. Hudnit V. Naah. cumbrances, but insisting that the mortgage of Nash was usurious and void, and that they purchased the premises at the siieriff's sale, with the understanding and belief that they were not subject to the encumbrance of the said mort- gage. Tiie answer of Nash sets out the origin of the indebtedness from McCue, for which his mortgage was given, and avers that the money was advanced, and the mortgage taken upon the distinct understanding, that it should be the first encum- brance in order of priority upon the mortgaged premises, but refuses to respond to the allegation of the complainant's bill of complaint, that the mortgage is tainted with usury, and there- fore null and void ; and the said defendant insists that, by the laws of the state of New Jersey, and the rules of this court, he is not obliti:ed to make answer unto the said allegation of the complainant's bill, inasmuch as he might thereby be sub- ject to a penalty of forfeiture by the laws of this state. Depositions having been taken, the cause was heard and argued by counsel upon the bill, answers, and proofs, when the following opinion was delivered by the court. Whelpley, C. J. It is conceded, on the proof made, that Nash's mortgage was founded on an usurious contract, although the usury was not included in the mortgage, but took the shape of a note, given by way of bonus, which has not been paid. That there was an usurious contract upon which the mort- gage was given, is clear upon the evidence. The only ques- tion to be decided is, can the plaintiff and defendants avail themselves of the defence in this suit? The bill is filed by the assignee of the second mortgage given by McCue and wife, against Nash, the first mortgagee, Tinsman, the owner of the third mortgage, and Hudnit and Slater, the [)urchasers of the mortgaged premises. The bill charges, in general terms, that the Nash mort- gage was executed upon an usurious contract, and void for that reason. MARCH TERM, 1862. 553 Hiidnit V. Nash. Nash answered the bill, passing by the allegations in re- gard to the usury, neither admitting, nor denying it. Tins- man answers, and sets it up ; so, also, do Hudnit and Slater. Tinsman prays that he may have an opportunity to con- test the Nasli mortgage. Hudnit and Slater pray the inter- ference of the court to have the mortgage declared void. If Nash had filed his bill to foreclose, and made the other defendants and Polheraus, defendants, and such proof had been made as in this case, there can be no doubt but that the defendants would have been entitled to a decree that his mortgage was void for usury. Then the usury could have been used as a defence to the action of Nash. But if the defendants cannot avail themselves of the de- fence without the aid of a court of equity, they must waive the forfeiture, and consent to pay the amount actually due. 2 Parson's on Con. 404, and cases there cited in note C; Rogers V. Rathhun, 1 Johns. Ch. R. 367 ; Fanning v. Dunham, 5 Johns. Ch. R. 122; Fulton Bank v. Beach, \ Paige 433. He that asks equity must do equity. But if a party comes into court, and asks relief, the court will compel him to do equity, although the defendant has not demurred to the bill. The court does not require the party to ask the aid of this principle by demurrer, but will give relief at the hearing. ^lorgan v. Szhermcrhorn, 1 Paige 644 ; Ruddle v. Ambler, 18 Arh 369. When a bill is filed for relief against an usurious mort- gage, it will be upon terms of paying, or offering to pay, what is really due. So stern is the court against enforcing a forfeiture, that it was held in Mason v. Gardner, 4 Bro. Ch. C. 436, that a cross-bill, filed by a defendant in aid of his defence, was bad on demurrer, for not offering to pay what was due. This, it will be perceived, was a case where it was set up by way of defence to a suit brought by the usurer. This case is cited with approbation in The Fulton Bank v. Beach, and is the law of the court. The same principle has been held in our own Court of Chancery. Saxto7i's Ch. 364. 654 COURT OF ERRORS AND APPEALS. Iludnit V. Nash. As against the complainant, beyond all quesjtion it is the fluty of the'court to decree for Nash's mortgage. The com- plainant's decree on his mortgage must be upon terms of paying Nash's mortgage, for the usury in this case was never j)aid. Are the viefendants, Tinsman and Hud nit, and Slater, in any better situation to avoid the Nash mortgage, than the com])lainaut? In this suit they occupy both the situation of defendants and complainants. As defendants they may contest the va- lidity of the complainant's mortgage; that by the pleadings is put directly in issue. They are also complainants seeking relief upon their own mortgages, or, as owners of the equity, asking to have their property discharged of the usurious lien. As to the Nash mortgage, they do not deny the loan of the money by Nash to McCue. They do not deny the exe- cution of the mortgage in due form of law, and its record as prescribed by law, but they set up new matter, not responsive to any bill filed by Nash, not in answer to any allegation made by him ; matter which the complainant had no right to set up to avoid the mortgage, without an offer to pay the amount due. As to this new matter, they are occu{)ying the position of complainants asking relief against Nash, that he may have the statute of usury ap[)liod to his mortgage. Although they stand in the position of defendants nora'i- nally, that can make no difference. The defendant, Nash, did not voluntarily come into court to enforce his mortgage, and ought not to be deprived of the benefit of the principle because his antagonist occupies the nominal position of de- fendant instead of that of plaintiff. The defendants were all bound to answer the complainant's bill, if at all, at the same time. He could not lawfully pray relief against the Nash mortgage, without an offer to pay the amount due. The defendant, Nash, was not bound to answer the allega- tions of the other answers. He could not have known what MARCH TERM, 1862. r)o5 Hudnit %'. Nash. they contained, unless he deferred his answer until they were filed. Where different encumbrancers, defendants in a foreclo- sure suit, wish to question the validity of their several en- cumbrances, a proper issue cannot be formed witliout a cross- bill filed by the defendant, wishing to contest the validity of the claim of his co-defendant. The defendant whose claim is attacked, ought not to be deprived of the benefit of his an- swer. It is true in this case that Nash did not answer the bill of comj)laint, but he was not bound to do it; the particulars of the usurious contract were not set forth as required by the j)ractice of the court. Stonfs Eq. PL § 393-9. Regidarly, the prayer of an answer is only to be dismissed from the court with his costs. But the court has, in modern times, dispensed with the ne- cessity of a cross-bill in cases wliere the whole matter is be- fore the court, and the party is not thereby deprived of any of his substantial rights by a decree in the existing suit, Ames V. New Jersey FrcmUinite Co., 1 Beas. 66 ; Elliot v. Fell, 1 Paige Ch.2QS. But the court will never dispense with a cross-bill where any of the defendants would be prejudiced by the want of one. This is a peculiar case. The complainant might have pro- ceeded without making Nash a party defendant. In that case the property would have been sold subject to his mort- gage, and he would have been forced to assume the position of a complainant in equity, or plaintiff" at law; in either of these cases the defendant might have set up usury as a de- fence. But the complainant has, for the purpose of disposing of his claim in this suit, made him a party defendant. No decree can be made in this suit, except such an one as is grounded upon tiie prayer of the complainant's bill. The other defendants can have no relief to which the complain- ant is not entitled, and we have already seen that he is only entitled to a decree upon the basis of paying the amount due. 556 COURT OF ERRORS AND APPEALS. Hudnit V. Nash. All the parties in this case ask for a decree upon the bill, answers, and proofs, as they stand. I think there must be a decree for the payment of all the mortgages, in the order of their priority. I cannot see ray way clear to make any other decree. The complainant cannot object to this decree. He brought Nash into court unnecessarily ; he has come in and submitted to have such a decree made as the complainant is lawfully en- titled to; he is not interested in the other encumbrances, as he is entitled to priority over them. The other defendants, Tinsman, and Hudnit, and Slater, have not objected to his being a party to this suit in the ca- pacity of a defendant, clothed with all the rights of a defend- ant. They have not asked the court for a decree subject to the rights of Nash, or to have him stricken from tiie bill as an improper or unnecessary party, but have asked for a decree of the court upon his rights in this suit. I think they have no cause of complaint, if this court does equity between all the contending parties. What that is, seems to be free from doubt. The claims of all should be paid out of the proceeds of the sale, in the order of their priority. Let there be a reference to a master to ascertain the amount due on all the encumbrances, and decree accordingly. The following decree was thereupon made: This matter coming on for argument at the regular April Term of this court, held at Flemington, in and for the county of Hunterdon, in the year of our Lord one thousand eight hun- dred and sixty-one, in the presence of George A. Allen, esq,, of counsel with the complainant, Bennet Vansyckel, esq., of counsel with Tobias Nash, Alexander Wurts, esq., of counsel with John L. Tinsman, and Edward R. Bullock, esq., of coun- sel with Samuel Hudnit and Gabriel H. Slater, defendants, and the bill, answer, and proofs being read, and the argument of the said counsel being heard, and the court having taken to this time for consideration, and being now of opinion that MARCH TERM, 1862. 557 Hudtiit V. Nash. the objections taken to tlie mf)rtgage given by the said Fran- cis INIcCue and wife to said Tobias Nash are inequital)le, and shouki not prevail, bnt that the said mortgage, as well as the other mortgages set up in the pleadings, should be held to be encumbranees on said mortgaged premises in the oi'der of their priority, and which said order appears from the said proofs and exhibits. It is, therefore, on this eighth day of April, in the year of our Lord one thousand eight hundred and sixty- one, by the said Circuit Court of the county of Hunterdon, ordered, adjudged, and decreed, that the said mortgages are, and the same are hereby declared to be valid and subsisting encumbrances on the premises described therein, and are enti- tled to priority and payment out of said premises in the fol- lowing order, that is to say : In the first place, the principal and interest money mentioned in and secured by the said bond and mortgage of the said Tobias Nash, together with his taxed costs, is to be paid. In the second place, the principal and in- terest money mentioned in and secured by the said bond and mortgage of the said complainant i;^ to be paid, together with his taxed costs. And in the third place, the principal and in- terest money mentioned in and secured by the said bond and mortgage now held by the said John L. Tinsinan, assignee, &c., together with his taxed costs, is to be paid. And it is further ordered, that for the purpose of making said moneys, a sale be made of said mortgaged premises, and that for the purpose of ascertaining the amounts due and to grow due on said mortgages, respectively, that it be referred to Charles Bartles, one of the masters of the Court of Chancery of New Jersey, who is hereby directed to report thereon with all con- venient speed. Hudnit and Slater, the owners of the equity of redemp- tion, appealed from that part of the said decree, which adjudges that the mortgage of Tobias Nash was, and is, a valid and subsisting encumbrauce upon the mortgaged prem- ises in the pleadings mentioned, and entitled to payment out Vol. r. 2 m 558 COURT OF ERRORS AND APPEALS. riudnit V. Nash. of said premises according to its priority. Nash auswered the petition of appeal. 31r. Wmis, for appellants, cited Nix. Dlcf. 552, § 6 ; Con- stitution, Art VI, Sec. II, § 5, 6 ; Art. VI, Seo. F, § 3 ; 4 Bra. CI). li. 436 ; Wortman v. Skinner, 1 Beas. 362 ; Ames V. N. J. Franklinite Co., Ibid. 67, 160; Grosvenor v. The Flax and Hemp 3Ian'g Co., 1 Greenes Ch. R. 453 ; Roberts V. Gcf, 4 Barn. & Aid. 92 ; 2 Parsons on Con. 404 ; 1 Beas. 31, 67; 3 Halst. Ch. R. 531. 3Ir. B. Vansychd and Mr. Beasley, for respondent, cited Rogers v. Rathbun, 1 John. Ch. R. 367 ; Eagleson v. /S/ioi- li'e//, Ibid. 537 ; Fanning v. Duyiham, 5 Johns. Ch. R. 122 ; Fulton Bank v. Beach, 1 Pa/f/e 429, 433 ; Morgan v. Scher- merhorn. Ibid. 546 ; jPo.s^ v. Bank of Utica, 7 i/i// 391 ; Rexford v. Widger, 3 ^r/.r6. C'i. /^. 641 ; Remcr v. Shaw, 4 i/a/sL C/i. i^. 355 ; 3 Baniell's Ch. Pr. 1342 ; ^^/or?/'s ^^. PA, § 392-3 ; Pattison v. //w//, 9 Coi6'm 747 ; A^jry'.-? ^9. PL, § 392, 710^6 2 ; Ames v. T/ie iV. J. Franklinite Co., 1 .Beas. 66 ; j5;//io« v. Pe//, 1 Paige 268 ; Co/Za/v/ v. Smith, 2 iieos. 43 ; 8 Paige 453 ; 4 Paige 526 ; 2 DanieWs Ch. Pr. 752, no^e 2 ; 2 Green's P. 502 ; 3 Wend. 579. The opinion of the court was delivered by Green, C. A bill of foreclosure was tiled in the court lielow by the second mortgagee. Nash, the first mortgagee, and Hudnit and Slater, the appellants, the owners of the equity of redemption, were made parties, defendant. The bill alleged that the mortgage of Nash was void for usury. It prayed a sale of the mortgaged premises for the payment of the complainant's debts, and a foreclosure of the equity of redemption against all the defendants. The appellants, Hud- nit and Slater, by their answer, claimed to be the owners of the equity of redemption. They admitted the complainant's mortgage, but insisted that the mortgage of Nash was void for usury, and constituted no encumbrance upon the mort- gaged premises. The cause was brought to final hearing MARCH TERM, 1862. 55S Hudnil V. Nash. upon the j)leadiiigs and proofs. The evidence showed that the mortgage of Nash was tainted with usury; the mort- gagee having received, in addition to the mortgage for $1500, the sum advanced, a note for $200 as a bonus or additional consideration for the loan of the money. The court held that upon the state of the pleadings, the defence of usury wan not available, and that the mortgagee was entitled to a decree for the sum actually advanced upon the mortgage loan. The well settled rule in equity is, that if the lender come into a court of equity seeking to enforce a usurious contract, equity will repudiate the contract. But if the borrower seeks relief against the usurious contract, the only terms upon which the court will interfere are, that he shall pay what is really and bona fide due. The court acts upon the principle that it is against conscience that a party should have the re- lief which he asks against the contract, and at the same time keep the money which he received upon it. If he asks equity, he must do equity. If, therefore, a mortgagee asks to fore- close a usurious mortgage against the mortgagor, and the usury is established as a defence, the court will declare the contract void. But if the mortgagor asks the court to re- deem the mortgaged premises, or to relieve the premises from the encumbrance of the mortgage, the relief asked for will be granted only upon the payment of the amount actually due uj)on the mortgage debt. Nash, in this case, was the first mortgagee. He did not come into court asking to foreclose his mortgage. But a subsequent encumbrancer, a party holding the right of re- demption, filed a bill to foreclose his mortgage, and made the first mortgngee and the owners of the equity of redem{)tion, parties. Now as against the first mortgagee, this is not a bill to foreclose, but to redeem. He was not a necessary, nor a proper party to the suit, if the sole design was a foreclosure of the equity of redemption. The real design and effect of making him a party M'as, that his mortgage should be re- deemed, or the encumbrance removed from the premises. Technically, this is all that could be asked as against him. And in the Irish Cc^urt of Equity where, as with us, the 560 COURT OF ERRORS AND APPEALS. Hudnit V. Nash. mortgaged premises are sold under a bill of foreclosure, the bill is demurrable, unless the complainant offers to redeem. Under our practice, doubtless, the prior mortgagees are made parties to avoid multiplicity of suits, and so that the premises may be sold free from encumbrances, and most advantageously for the interests of the owner of the equity of redemption. But still, in strict technicality, and in its practical operation, the bill as against the first mortgagee, is a bill for redemp- tion, not for foreclosure. The mortgage is redeemed, not technically, by the payment of the debt in advance by the complainant, but the same result is reached by its being paid or redeemed first in order out of the proceeds of the sale. By coming in with his mortgage, the first mortgagee assents to the relief prayed for by the complainant. Beyond that he asks no relief. As against him, the relief sought for will not be granted unless by his consent, or upon payment of the amount actually due upon his debt. But it is said that the appellants, who had acquired the title of the mortgagor, and were the final owners of the equity of redemption, were also defendants in the suit, and that, as against them, the decree is illegal, because it establishes the usurious mortgage as against their rights. But so far as the interests of Nash were concerned, they assented to, and con- curred in, the prayer of the bill. They insisted that the mortgage was usurious and void as against their interests. Admitting that they had a right to raise the defence of usury as against their co-defendant, their answer was in the nature of a cross-bill, and as such, in its operation, it was a prayer for relief against the Nash mortgage. Standing in the shoes of the mortgagee, they sought to relieve their title to the equity of redemption from the encumbrance of that mort- gage. The whole design of the answer, and of all the evi- dence offered, was to obtain relief against the Nash mort- gage. Clearly, the decree could not have been made, except by the assent, expressed or implied, of all the parties inter- ested in the equity of redemption. All the subsequent en- cumbrancers to Nash, and the owners of the equity of redemp- tion, were before the court upon final hearing, asking a final MARCH TERM, 1862. 561 Hudnit V. Nash. decree upon proof of usury in the mortgage of Nash, wlio had been brought before the court simply that the premises might be relieved from his encumbrance. That was the de- sign of the bill. That must have been the effect of the decree. Under these circumstances the court did what is admitted to be equitable. They declared that the holder of the mortgage fihoidd recover only the amount actually due. It is now urged that the court should simply have dis- missed the bill as ao-ainst the first mortffascee. That is doubtless w'hat would have been done, had either of the par- ties asked for it at a time when it could have been done without prejudice to the rights of the first mortgagee. But the parties had all voluntarily submitted their rights to the final disposition of the court, upon the pleadings and proofs, as they then stood. No one asked the relief which it is now insisted should have been afforded. They all asked a final disposition of the question, at the hands of the court. It was so disposed of, and in accordance with the principles of equity. Nash recovers nothing more upon his mortgage than he actually advanced. He took the mortgage for the precise sura loaned. The usury consisted in taking a note by way of bonus, which has not been paid, and is clearly .valueless. Under these circumstances, it is not perceived upon what ground these appellants can complain. They v'oluntarily submitted their rights to the final adjudication of the court, in the shape in which they were presented. They asked equitable relief, and they obtained it. By a reversal of the decree, Nash could not be restored to the position in which he stood before the decision in the court below. His legal rights have been virtually adjudicated. There was no diffi- culty in the appellants enforcing their legal title in a court of law. They might have brought ejectment, and held the premises under their title. They voluntarily submitted to an adjudication of their rights in equity. They are here in su[)port of a strictly legal right, seeking to enforce a penally against the respondents, to retain the whole loan of $1500, 562 COURT OF ERRORS AND APPEALS. Hudnit V. Nash. aud not pay a farthing of the debt. The evidence shows that in every aspect their case is destitute of all pretence of equity. They never suifered the loss of a dollar from the usury. It never operated against them. As they ask merely to enforce the penalty of the law against Nash, they cannot complain that the strictest aud most technical rules should be enforced against them. Clearly, the decision of the case was made upon the sharpest technicality, upon the very apices Utigandi, and not in accordance with the usual prac- tice of the court when equitable interests are to be protected. If any equitable interest of these appellants had been affected, it is safe to assume that the decree never would have been made. But as the case stands, there is no reason in equity why the decree should not have been made, and certainly none why it should now be set aside to the prejudice of the respondent. I think the decree should be affirmed. Decree affirmed by the following vote : For affirmance — The Chancellor, Judges Brown, El- mer, Haines, Ogden, Swain, Van Dyke, Vreden- BURGH, Wood — 9. For reversal — Combs, Cornelison, Kennedy — 3. Cited in Vanderveer v. Holcomb, 2 C. E. Qr. 87-550. INDEX. depend upon the laws of the state wliere the contract was made. At- waier v. Walker, 42 ABANDONMENT. 1. There may be a consitructlve aban- donment or separation, while thej2. Where ihe contract upon its face is parties coutiniie under the same strictly legal, it will not be pre- roof. Anshidz V. Anshufz, 162 sumed that the parlies had in con ■ 2. The conduct which will justify the teTuplatiou an illegal stipulation, wife in abandoning her husband Diercks v. Kennedy, 210 must be such as would constitute a 3. The omission of one of the lega- tees to sign the agreement, will not invalidate it as against those who did sign it, they having derived all the benefit sought by the arrange- ment, and having incurred no ad- ditional burden or loss. Woodward's adin'r t. Woodicard's ez'ra, 84 4. A court of equity ouglit not to en- force the specific perforMiance of a contract lor the purchase of land, under a sale which a comj)etent tribunal had pronounced unautho- rized and illegal. Young's adm'r V. Rathbone, 224 5. Time is not generally deemed in equity to be of the essence of the contract, unless the parties have expressly so treated it, or it peces- sarily folloAVS from the nature and circumstances of the contract. Spe- cific performance is frequently de- creed, where the terms for the com- pletion of the contract have not, in point of time, been strictly com- plied with. 225 6. Where the time fixed for the de- livery of a deed has passed, and the circumstances have materially changed, a vendee acting in good faith will not be compelled to ac- cept a deed against his will, which he was ready and willing to acce|)t at the time fixed for the perform- ance of the contract. lb. 7. The general principle is, that where the contract is incapable of being enforced against one party, that ' party is eijually incapable of en- forcing it against the other. But ground for divorce or alimony Moores V. 3Ioore$, 275 ACCOUNT. See Executors and Administka- Tous, 1, 7, 9, 10, 11, 12. Guardian and Ward, 1, 2 Jurisdiction, 4. PiiACTiCE, 59 to G4, 79. ACTION. See Practice, 22, 23. ADMINISTEATOES. See Executors and Administra- tors. ADULTERY. See Divorce. Evidence. Pleading, 37, 40. AGENT. See Partnership, 4. Principal and Agent, Usury, 3, 4, 5. AGREEMENT. l.The validity of a contract must 563 564 INDEX. the principle does not apply where the contract, by its termis, gives to one party n rigliL to the perform- ance, wliicli it does not give to tlie other. VuH Dot-en v. Robinson, 256 8. Where the obligation to perform rests upon one of the parties onl}', equity will enforce the contract with great caution. lb. 9. An agreement for the sale of laud at a price io be ascertained by the ■parties, is too iucoinplete and un- certain to be carried into execution by a court of equity. But where the contract is, that land shall be conveyed "at a fair price," or " at a fair valuation," the court will di- rect the valuation to be made by a master, and will enforce the execu- tion of the conlract. lb. 10. The true principle seems to be, that whenever the price to be paid can be ascertained in consistency with the terms of the contract, per- formance will be enforced. But the court will not make a contract for the parties, nor adopt a mode of ascertaining the price not in ac- cordance with the spirit of the agreemevit. lb. 11. A mere personal contract, not run- ning with the land, nor binding the alienee at law, will be enforced against the alienee in equity, only where he is chargeable with notice of the contract. _ lb 12. Wliere the covenantee in a con- tract for the conveyance of land, l)ermits a purchaser to acquire title, take possession of the premises, and pay the purchase money, without an intimation of his claim under the covenant, or of his willingness to accept the title, he has no claim to relief in equity. 257 13. Equity will relieve against a con- tract made under a mistake, or ig- norance of a material fact ; not only where there has been a concealment of facts by one party, but also in cases of mutual mistake or igno ranee of facts. J^icholson v. Jane- u-aij, 285 14. To constitute a fraud or mistake, for which equity will relieve against a contract, it is essential that the . fact misrepresented or concealed be malerkd. iL must either afi'ect the substance of the contract, or the ■value of the thing bargained for j or be such as induces the party ag« grieved to pay more, or accept less, for the thing bargained for, than its real value. lb. 15. Equity will not grantrelief against a contract on the grotmd of mis- take, when the mistaken fact did not operate as an inducement to enter into the contract. lb. 16. An engMgement by a contracting party that he will not do any act to the prejudice of the other con- tracting party, without his consent, is, in eii'ect, identical with an abso- lute and unqualified engagement not to do the act. Delaware (wd Earitan Canal Co. v. liarilan and Delaware Bay Co., 322 17. Parties cannot effect by combina- tion what neither can do lawfully. Nor can thev effect by the agency of others, what they may not do themselves. lb. See Corporations, 1, 2, 3, 5, 13. Mistake. Mortgage, 8, 9, 10. Sale op Land, 8, 9. Spec. Pebf., 1, 3, 6, 7, 10. ALIMONY. l.This court has or)'_7i'«a/ jurisdiction in the matter of alimony, ordy Avhere the husband without any justifiable cause abandons his wife, or separates himself from her, cr refuses and neglects to maintain and provide for her. Anshutz v. An- hvtz, 162 2. The abandonment or separation on the part of the husband, as well as the refusal to support the wife, must be charged in the bill and be sustained by the proof. . lb. 3. While the parties continue to live together, no measure of unkind or harsh treatment, which will not constitute valid ground for a di- vorce, will entitle the wife to ali- mony, lb 4. A bill for alimony independent of the statute, except as incidental to some other relief which may give the court jurisdiction, will not be entertained. lb See Practice, 38, 39, 40. 41. INDEX. 565 AMENDMENT. See Pleading, 42. Practice, 33. ANSWER. See Pleading, 5, 7, 12, 20 to 25, 35, 38, Practice, 21, 77. Spec. Perf., 10. APPEAL. See Practice, 72. ASSIGNEE AND ASSIGNMENT See Creditor and Debtor, 2. Mortgage, 3, 4. ASSIGNMENT FOR BENEFIT OF CREDITORS AND FRAUD- ULENT TRUSTS. An insolvent debtor having been ar- rested in Virginia, and being in custody by virtue of a capias ad satisfaciendum, petitioned for liis discharge under tlie insolvent laws of tiiat state, and having taken the oatli of insolvency, and tendered and subscribed a schedule of all his property, real and personal, did further, in pursuance of the requirements of the insolvent laws of said state, and in order to his discharge as an insolvent, execute anil deliver to tliesherill', by whom he was held in custody, a deed for certain real estate in New Jersey, described in said sciiedule. Upon a bill filed in this court to compel tiie execution of tiie trusts upon which tlie said deed was executed, Held— 1. That a general assignment by a debtor, of all his real and personal property, under the insolvent laws of Virginia or of any other stale, can pass no title to real estate in New Jersey. Ilutcheson v. Peshine, 167 2. The deed to the sheriff, though ab- solute upon its face, was merely ancillary to the general assign- ment, burdened with the same trusts, and designed to carry the assignment into eflect. Independ- ei t of those trusts, and of the pro- visions of the statutes of insol- vency, the deed is without consid- eration, and void lb. 3. The deed is not merely fraudulent as against subsequent creditors, but it is illegal and inoperative as a transfer of title to real estate, and the trusts under it v.'ill neither be recognized nor executed. by the courts of this state. lb. 4. This court will not administer trust funds created under the laws of another state, and growing out of the sale of real estate situate in New Jersey, in direct conflict with the laws of this state, to the pieju- dice of creditors residing liere. lb. ATTACHMENT. See Practice, 19. Sale of Land, 1, 2, 3. AWARD. See Pleading, 11. BILL QUIA TIMET. See Practice, 47. BONA FIDE PURCHASER. See Purchaser, 1, 4. Sale of Land, 2. BOND. , In an action at law upon a penal bond, with condition for tiie pay- ment of money only, the |>laiutiff is entitled to recover tiie full amount of the penalty a-i a debt, and the excess of interest beyond the penalty in the shape of dam- ages for the detention of t!ie debt. Long's adm'i- v. Long, 59 Upon a bill in eqnitij for the re- covery of a bond debt, either upun the bond itself, or u[)on a mori- gage given to secure tlie bond, tiie obligee may recover the/uU a.itonut 566 INDEX. 0/ jyrincipal and interest due upon the bond, though it exceed the amount of the penalty. Jb. 3. Though the delivery of a bill or iiote, either of the debtor or of a third party, is not payment of a precedent debt, but merely sus- pends the remedy, yet if the liolder be guilty of laches, it operates as a complete satisfaction. Shipman v. Cook, 251 4. Where the note of a third party is endorsed by a mortgagor to the mortgagee, and is accepted by hini as a conditional payment upon the bond, the mortgagor is entiled, «s endorser, to a notice of protest or dishonor. If the holder of the note fail to give such notice, the mort- gagor is discharged not only from liability as endorser, but also from liability pro tanto upon the bond. lb. 5. If such a note be accepted as abso- lute payment on the bond, and the payment of tiie note be guaranteed by the mortgagor, the guaranty will not restore the obligation. The mortgagor would be liable on his contract of guaranty, but his indebtedness upon the bond and mortgage would not be revived. 76. See Husband and Wife, 10, 11, 19. BURTHEN OF PROOF. See Practice, 38. CESTUI QUE TRUST. See Executors and Administra- tors, 2. Pleading, 17, 18. Practice, 32. Will, 10. CHARTER. I. The making and filing of the sur- vey required by the 5th section of the act incorporating the " Morris Canal and Banking Company," {Pamph. L., 1824,_ p. 160,) is a necessary prerequisite to the taking of any lands under the powers given by the charter. Morris Canal and Banking Co. v. Central Mail- road Co., 419 , As a rule of construction, the legis- lature ought to be considered as intending to grant, by a charter of incorporation, such i>owers only as are neces-iary or useful to the end or object which tiiey had in vit-w in creating the corporation. They ought not to be understood as granting anything more, unless the intention to do so is plainly ex- pressed, or beyond a doubt. Jb. , In public grants the grantee can take nothing not clearly given him by the grant. In cases of doubt, the grant is construed in favor of the state, and most strongly against the grantee. lb. .The third section of the "act to incorporate the Associates of the Jersey Company," Pamph. L., 1804, p. 370,) enacts as follows: "That tlie said Associates shall have the privilege of erecting or building any docks, wharves, and piers, opposite to, and adjoining the said premises in Hudson river, and the bays thereof, as far as tiiey may deem it necessary for the im- provement of the said premises, or the benefit of commerce, and to appropriate tiie same to their own use." Held, tiiat this section merely gave the Associates a privilege or license to build docks, wharves, and piers, in the waters of tiie Hudson river and tiie bays afore- said, in the manner therein men- tioned, and when so built, to ap- propriate them to their own use, and conferred upon them no power to transfer or convey such privi- lege or license to any other corpo- ration. Held further, that the land not so occupied and built upon was not granted to the Asso- ciates, and that the same and all rights in and over it remain in the state as before. lb. See Corporations, 1, 9, 10. CONTRACT. See Agreement. INDEX. 567 COKPORATIONS. . Wliere, at the time of the grant of a cliarter to a corporation, there is a general Law of the state, that the charter of every corporation grant ed by the legislature shall be sub ject to alteration, suspension or repeal, in the discretion of tl>e legislature, the legislature, in grant ing such charter, must be deemed to liave reserved to themselves the right of altering, suspending, or repealing the same, whenever, in their discretion, the public good may require it, as fully as if the reservatum were inserted in the charter. And all contracts, expres or implied, resulting from the act of incorporation and its acceptance by the stockholders, must be deem- ed to have been entered into by both parties, subject to that reser- vation. Slory V. Jersey City and Bergen Point Plank Road Co., 13 . Whatever limitation may exist to the reserved right of the legisla- ture to alter or repeal a contract, such reservation is in itself valid, and this court ought not, uppn a motion for a preliminary injunc- tion, to pronounce any alteration, suspension, or repeal of the charter, to be unconstitutional or illegal. Much less sliould this court make such declaration in advance of any actual legislation. 14 Under the provisions of the charter of incorporation of the Jersey City and Bergen Point Plank Road Com- j)any, Pampk. Laws, 1850, p. 255, and the sn])plemenls thereto. Laws, 1851, p. 288, and 1860, p. 392, and of the charter of incorporation of the Jersey City ami Bergen Rail- road Company, Lnu's, 1859, p. 411, and the supplement thereto, Laivs,\ 1860, p. 393— I Held, that the occupation of a part 6 of the ancient highway on which (he plank road is constructed, by the railway, with the consent of the plank road company, without the personal consent of a stock- liolder, the p'ank road company having been authorized by the legislature to lay rails upon their road, is no violation of the rights,? of such stockholder. Held also, that the sale by the plauki road company of the whole or a part of their road to the railroad company, without the personal consent of a stockholder, is not such an ini'ringemeiit (if any) of his rights as this court will inter- fere to restrain by injunction. Held further, that a ch.ange of the route of the plank road by author- ity of the legislature, at the in- stance of the plank road company, is not a fundamental change of the objects of the company, or a fun- damental alteration of the struc- ture thereof, which equity will restrain at the instance of a stock- holder, lb. . A member or director of a corpo- ration may make contracts with it, like any other individual, and when tiie contract is made, the tli rector stands, as to the contract, in the relation of a stranger to the cor)>o- ration. St ration v. Allen, 229 . Corporations that have the power to borrow money, have also the necessary power, as well as the legal right, to give obligations for its repayment in any form not ex- pressly forbidden by law. The fact that the security was given, and the judgment confes-ed to a direc- tor, cannot destroy its validity. lb. , The phraseology of the clause under which the exclusive privi- leges are claimed by the comphiin- ants, "it shall not be lawful, &c.," {Pamjjh. L., 1832, p. SO,) is the form in which the faith of the state is usually pledged, and in which con- tracts with corporations, touching the exercise of exclusive franchises under legislative authority, are entered into. It is none the less obligatory that it is not in form a contract. Del. & Pir. Canal Co. V. Bar. & Del. Bay 0>., _ _ 321 The legislature cannot divest itself or its successors, of its sovereignty, or extinguish the trusts committed to its custody for the pul)lic wel- fare. It not only may, but must determine in what manner that sovereignty shall be exercised, and how those trusts shall be executed. lb. . By the grant of exclusive privi- legeR to the joint companies, the legislature in no proper sense dero- 568 INDEX. gated from the power of subsequent legislalnres lo provide lughways. The legishiture luive the same con- trol over tlieir friincliises and pro- perty as over those of any other citizens, and tliey may be taken and condemned lor public use upon making- just compensation. lb. S. If a cor|)orati()a goes beyond the powers with which the legislature has invested them, and in a mista- ken exercise of those jDOwers inter- feres with tiie rights or property of others, equity is bound to interfere by injunction if the exigency of the case require it. Whether those rights are invaded by a mistaken or fraudulent exercise of power is immaterial. 322 S. The legislature cannot be presumed by a charter to intend or contem- jdate any grant inconsistent with, or that would operate as an inva- sion of, a grant already made. lb 10. The clause in the charter of incor- poration, rendering the consent of the companies necessary to legalize the construction of a competing road, cannot afl'ect the validity of the law as an act of legislation Their assent is no part of legisla- tion. It does not create the law, but merely avoids tlie constitution- al objection to its validity. lb. 11. By the act of 1854 {Pamph. L. 388,) supplementary to the act en- titled "an act relative to the Dela- ware and Ilaritan Canal and Cam- den and Amboy Railroad and Transportation Companies," the true intent and meaning of the said last mentioned act, are de- chired to be "fully and efl'ectually to protect until the first day of January, 1801), tiie business of the said joint companies from railroad competition between the cities of New York and Philadelphia." Held, the grant of this exclusive privilege operates only to protect the through business from cily to city, and not between intermediate places and over any and every part of the route between the said cities. Tiie franchise is exclusive only in regard to passengers and merchan- dise transported over the entire route. Tb. 12. But even if the exclusive privi- lege also extend to way business, still a competing route for local business is not a nuisance, unless so near the route of the complain- ant's road as materially to aflect or take away its custom. 76. 13. It is a well settled rule of con- struction that public grants are to be construed strictly ; and in all cases of grants of franchises by the public to a private corporation, the established rule of construction is, that any ambiguity in the terras* of the contract must operate against the corporation, in favor of the public. The corporation take no- thing that is not clearly given by the act. Jb. See Charter. COSTS. See Practice, 3, 4, 7, 24, 65, 71. Sale or Land, 3. Wiix, 4. CREDITOE AND DEBTOR. 1. Where a creditor comes into equity to remove fraudulent encumbrances or conveyances out of the way of his execution at law, the effect of the decree is simply to declare the creditor's claim an encumbrance upon the property, in preference to the fraudulent encumbrance or alienation. Smith v. Vreeland, 199 2. AVhere a debtor wilfully admits a greater liability than actually exists, or conceals tiie equity or defence on which he subsequently relies, such concealment or admis- sion will be absolutely conclusive in favor of an assignee, if acted on by him in accepting the assign ment. Diercks v. Kennedy, 210 See Assignment for Benefit of Creditors and Fraudulent Trusts. Fraud, 4. Husband and Wife, 1, 2, 4, 6, 7. Insolvent Corporation, 7, 8. MAIiRlED WOMENT, 10. Partnership, C. Practice, 15 to 19, 67 to 69. Pleading, 30, 31, 34. Trust and Trustee, 2. INDEX. 509 CROSS-BILL. See Pleading, 21, 22. Pkactice, 90. DECREE. See Practice. PuiiCHASER, 9. DECREE OF DISTRIBUTION. See Practice, 70 to 82. DEED. l.The familiar principle of the com- mon law, that in tlie creation of an e.state by deed the word '' heirs" is necessary to pass the fee, has not been altered in this state i)y sta tute, nor has it been modified or relaxed by judicial construction. No synonym can supply the omis- sion of the wortl " heirs," nor can tlie legal construction of the grant be allected by the intention of the parties. Kearney v. Macomb, 189 2. An instrument conveying lands ab- solutely, not as security for money nor to be held in trust for its repay- ment, but in lieu, of it, is a deed No subsequent event can convert it into a mortgage. lb. 3. A husband and wife, by deed of trust, conveyed the legal title to certain real estate to tlie trustee for life, and by the same deed, in terms, constituted tlie trustee attor- ney irrevocable, in the name of the grantors, or either of them, in con- jimclion with the grantors, to con vey the land. Held, tiiat as respects the wife, the power as such was a nullity. She could not convey by letter of at- torney. Also, that it can only serve as evi- dence of an intention on tiie part of the grantors, to confer upou the trustee a power of sale. Further, tiie trustee has no power of sale under the deed. lb. i. Where the defendant claims title through a deed which contains the covenant sought to be enforced, he is chargeable with constructive no- tice of the covenant. Van Doren v. liobiuiion, 256 5. Notice of a deed is notice of its contents, :ind where a purchaser cannot make out a title but by a deed wliich leads him to anotlier fact, Jie will be deemed to have knowledge of that fact. 257 6. Construciive notice is knowledge imputed on presumi)tiou, too strong to be rebutted, that the knowledge must have been communicated, lb. 7. Where it appears that the adjunct of quantity in a deed is used as f/esc;'('/)i. of specific real and personal property lo which she was entitled by inheritance, remains absolutely licrs, as if she were a single female, and is not subject to the disposal of her husband. lb 1 1. The payment of such bond at its maturity to the husband, its sub- sequent investment by bim in hi:- own name, without objection by the wife, and his receii»t of the in- terest, is no evidence (since the act of 1852) of the transfer of the pro- perty from ibe wife to the husband or of the determination of her in terest. Jb ^2. The reduction of a cAo.se in action (the separate ]>roperty of the wife) into possession, by the husband, without the consent of the wife, does not change the title of the prop(>rty. The liusb:ind is account- able for so much of the estate of the wife, secured to her separate use, as has come into his hands, lb. 13. Irrespective of the riglits of the wife under the act of 1852, it is not every reduction by the hus- band, of the wife's choses in action into possession, that will vest the property absolutely in the hus- band. The ownership follows the ■will of the husband. Ihit under that act, the husband has no right to convert the wife's choses in ac-| lion to his own use. 8iich conver- wife are living together, he should be fiermitted to take the interest or profits of her separate estate for their mutual benefit, or fjr his own use, should, as between the husband and wife, raise no presumption pre- judicial to her rights, 5]3f' 18. The second secticm of the act of 1852 does not relate ort/y to the pro- perty in existence when the law ; went into operation ; it applies equally to after acquired pro[)ertv. lb. 19. The bond having been collected by the hu«band, and the money in- vested in his own name, the widow cannot claim the protection of the act of 1851. Nix. Dig. 282, § 35. That act extends only to the specific chattel or chose in action. Jb. See PitACTiCE, 14. INJUNCTION. fion i< a violation of the rights of the wife. i6.' l.The Court of Chancery ha.s no power, by injimction, to restrain any citizen from petitioning either branch of the legislature upon any subject of legislation in wliich he is interested, feuch restraint would be an unauthorized abridgment of the political rights of the party enjoined. Stonj v. Jersey City and Bergen Point I lan/c Road Co., 13. 2. The restraining jKiwer of a court of equity is exercised fcr the [iro- tection of rights, the existence of ■which is clearly established, and so far only as may be essential for 576 INDEX. the protection of those rights. Del. and Rar. Canal Co. v. Bar. and Del. Bay Co., 321 3. An injunction is the proper remedy to secure to a party the enjoyment of a statute privilege, of wiiich he is in the actual possession, and when his legal title is not put in doubt. _ 322 i. The powers of a court of equity in regard to nuisances are corrective as well as preventive. It may or- der them to be abated, as well as restrain them from being con- structed. As a general rule, such relief will not be granted unless made the subject of a special prav- er. ^ 323 5. To justify the issuing of an injunc- tion to restrain the erection of a nuisance, or to abate it after it is erected, it must ajipear not only that the complainant's rights are clear, but that the thing sought to be enjoined is jirejudicial to those rights. The fact of the nuisance must be clearly established. lb. 6. A structure, though illegal, will not be enjoined as a nuisance, where it occasions no injury to the rights of the complainant. J b. 7. The closing of a road used as a highway for travel, by injunction, can only be justified by the clear- est necessity. Jb. 8. To entitle a party to an injunction, his title to the property and rights claimed by him, and for the pro- tection of which he askstlie inter- position of the court, must appear in a clear and satisfactory manner. Morris Canal and Banking Co. v Central Railroad Co., 41 9 9. This court will not interpose by injunction to prevent an appre- hended injury, which is not irre- parable, and which is capable ofj compensation in damages. 420 10. An injunction should only be is- sued in cases of great injury, where courts of law cannot atiord an ad- equate or commensurate remedy in damages. The right must be clear, and the injury be impending or threatened, so as to be averted only by the protecting, preventive pro- cess of injunction, lb. 11. An injunction will not be con- tinued for the mere purpose of re- straining a naked trespass, or for the purpose of quieting the pos- session of a C()mi)lainant wlio shows no title to the premises in dispute. McGee v. Smith, 463 See Corporations, 2, 8. Pleading, 36. Practice, 12, 21, 54. Spec. Perf., 10. INSOLVENT CORPORATION. 1. The only criterion of insolvency, furnished by "tlie act to prevent frauds by incorporated companies," (in regard to companies other tlian banking), is the suspension of busi- ness. Bedford v. Newark Machine Company f 117 2. The act of insolvency contempla- ted by the statute, is committed at the time the company suspends its ordinary business operations. lb. 3. Under the 42d section of " the act to authorize the establishment, and to prescribe the duties of compa- nies for manufacturiug and other purposes," all laborers in the em- ploy of the company at the time of the suspension of its business operations, and not those only in their employ at the time of insti- tuting legal proceedings against them as an insolvent corporation, are entitled to priority in payment over the other creditors of the com- pany, lb. 4. The apprentices of such company are entitled to their wages without regard to the time that they were kxst actually laboring for the com- pany. Their legal rights cannot be afiected by the refusal or ina- bility of the company to furnish ihem with employment. lb. 5. A judgment confessed by a party on the eve of insolvency, without any view or ex}>ectation of obtain- ing aid to enable him to continue his business, affords strong evi- dence that it was done in contem- plation of insolvency, and with the view of preferring creditors. Stratton v. Allen, 229 6. In the distribution of the funds of an insolvent company, a judgment confessed in contemplation of in- INDEX. 577 eolvencT, and willi tlie view of preferring creditors, is entitled no priority. Tlie debt will be paid pi-oporlionabli/ with the other del)t.< of the company. J h. 7. A creditor of an insolvent corpo- ration, who shows a itMsonable ex- cuse fur not presenting his elaiii wiiiiin the time limited by the order of the court in proceedings under "tlie act to ])revent frands by incorporaled companies," Nix J)if/. 371, will be admitted at any lime before actual distribution, or even after jiartial payments, if there be a surplus in the iiands of the receivers, so as not to interfere with payments already made GrinneU v. Merchants Insuravce Co., _ 283 8. A creditor does not by snch pre- sentment, obtain a vested right to a certain dividend to the exclusion of others. lb. 9. The fact that the petitioner was an otiicer of the corporation, and that the proceedings to establish its i solvency were instituted in 1 name, cannot prejudice his riglitto be let in to prove his claim before the receivers. lb. 10. Ten days allowed to present claim. lb. INSOLVENT DEBTOR. ground for the interference of ecpiity. Stratton v. Allen, 229 2. If the instrument upon which the jiidgu)ent was entered, was with- out consideration or inv.alid, or if the judgment was unauthorized or illegal, the remedy for a party ag- grieved is by application to the court in which it was entered, or by writ of error. lb. 3. A judgment can only be impeached in a court of ecpiiiy for Iraud in ?7,s concoction, and not for fraud in the instrument upon which it i:* founded. 1 6. See Insolvent Corporations, 5, 6. Mechanics Lten, 4. Practice, 16, 55, 5(5. JURISDICTION. 1. The proper office of courts of jus- tice is to adjiulicate upon, and to protect and enforce the legal and equitable right of parties litigant, as they are establislied by existing laws. It is no part of their appro- priate function to determine in advance, whether a proposed law may or may not be enacted consist- ently with the rights of parties, or to interfere directly or indirectly with the course of legislation. Story V. Jersey City and Bergen Point Plank Bond Co , 13 See Assignment for Benefit of 2. The Court of Chancerv is not de- Creditors and Fraudulent Trusts. INTEREST. See Legacy, 16 to 18. Usury. INTERPLEADER. See Sale op Land, 7. JUDGMENT. 1. Olijections relating to the regular- ity of a judgment at law, or to tlie validity of the instrument upon which it is founded, constitute no prived of its original jurisdiction in any case, either by the operation of a statute conferring similar ju- risdiction upon the common law courts, or by the adoption in those courts of the principles or practice of courts of equitv. Prey v. Dem- are.-t, ' 236 3. The court of equity has concurrent jurisdiction with the Prerogative Court over the adu)inistration of the assets of deceased |)ersons. lb. 4. Unless for some special cause, a court of equity will not interfere with the ordinary jurisdiction of the Orphans Court in the settle- ment of the accounts of executors or administrators. Nor will it at- tempt to look behind such settle- ment, unless on the ground of fraud or mistake. lb. 678 INDEX. , When there is uncertainty a-? to the extent of the responsibility of a party from whom rent is soiin;lU to be recovered, a court of equiiy will maintain jurisdiction of a suit for its recovery. iSwedesborough Church V. Shivers, 453 LACHES. See Practice, 34. Sheriff's Sale, 3, 6. LEGACY. Israel Woodward, by his will, gave and bequeailied as follows: "I give and bequeath to my daughter, Elizabeth lilack. ihe sum of four- teen htnidrcd dollars, which sum I order my executors to put out at interest, and take laud security for the same, :ind pay her the yearly interest arising iliereon during lier natural life ; and if she dies leav-j iiig no lawfid issue, I order the said puni of fourteen hundred dollars to be divin to the value of the ma- terials used in the construction of each of them. 76. A claim, not filed according to the requiremeut.s of the statute, consti- tutes no encumbrance ujwn tlie premises. lb. A judgment at laic entered upon the lien, tiie lien claim not having been filed pursuant to the statute, gives it no priority in p:iyment, nor any advantage over liens upon which judgment has not been ren- dered. 76. MISTAKE. Equity will relieve against a con- tract made under a mistake, or ig- norance of a materiid fact ; not only where there has been a conceal- ment of facts by one party, but also in cases of mutual mistake or ignorance of facts. Sicholson v. Janeway, 285 To constitute a fraud or mistake for which equity will relieve against a contract, it is essential that the fact misrepresented or con- cealed be material. It must either afiectthe substance of the contract, or the value of the thing bargained for ; or be such as indures the party agsrieved to pay more or accept less, for the thing bargained for, than its rtal value. 76 582 INDEX. 3. Equity will not grant relief against a contract on the ground of mis- take, when the niistainclu- fiion tliat the parlies would not huve contracted had the truth been known ; in such case tlie party in- jured is entitled to relief in equity on the ground of groas mistake. Weai-t V, liuse, 2!J0iG MORTGAGE. By the act of 1854, Nix. Dig. 851, ? 61, when '.he nio'lgagee resides in a d'fi'erent townsliip from tJiat in whicli the mortgaged premises lie, the tax on the money secured by the mortgage is to be assessed against and paid by the mortgagor in the township where the hinds lie, and the receipt of the collector therefor is made a legal payment for so much of the interest of the mortgage, and is to be allowed and deducted therefrom by the mort- gagee. Held — 1. The payment of the tax and the receijit of the collector is a legal payment of so much interest, not of principal; a payment of tliea^^ crucd and accruing interest, not of interest to grow due at some future time. 2. When a mortgagor, entitled to have the tax assessed against and paid by hir^ arty with whom the crime is believed to have been committed, must be named ; or if iHiknown, an averment to that eliect is necessarv. Marsh v.JIarsli, 39L 38. The cliarge must be so fidl and specific that tliejjarty charged may know what he is called on to an- swer. It should state the time when, the place w'here, and if known, the person with whom the oflence was committed. It is not necessary to state the day, but the month and year should be stated. lb. 39. An averment that the statements contained in the bill are made upon information and belief, cuusLitutes no ground of demurrer. lb. 40. Al)ill {)raying a discovery from the defendant, whether since her marriage she has not committed adidtei'V with any person whatever, and with whom, and at what time and place, and inider what circimi- stances, is demurrable. The rule is, that the defendant is not bound to accuse himself of a crime, or to furnish tiny evide^nce whatever which shall lead to an aci'usation of that nature. And the objection lies to a partictdar interrogatory, though the bill be in other respects unexceptionable. lb. 41. Under a general demurrer for want of equity, no objection for want \)ifonn can projierly be raised. INDEX. 587 A demurrer nui!=t express the sev-| practice, except by proviJing a eral causes of deniiirrer. 392 more expeditions mode of proceed- 42. Demurrer overruled, with leave inj^ by order, instead of resorting to amend by slating tlie grounds to a bill of revivor. J b. of demurrer within twenty days, 7. No costs are given, either under the statute, or by practice irre- spective of the statute, if the com- plainant, or his representative, elect not to proceed. lb. unless theconiplainant within that time shall amenil his bill in the particulars objected to. lb. 43. A bill is not demurrable for want of proper parties, when all the per- 8. Where a sole plaintifi'or defendant sons whose rights are to be affected dies after the final argument, but by tlie decree are joined. Swedes-' before decree, the court may order buvough Church v. Shivers, 453 the decree to be signed as of a date I prior to the death of the party. J b. 9. Where a sole plaintitf or defend- POWER. I ant dies after decree, either party j may revive the suit. lb. See Deed, 3. 10. The judgment or decree of a court of general jurisdiction, upon PRACTICE. Litis no defence to a suit brouglit by a wife after the death of her subject matter within its jurisdic- tion, is final and ccmclusive, and can never be questioned in a col- lateral suit. Young's adiu'r v. Bathbone, 224 husband, to foreclose a mortgage 11. But where the order or decree is made to her joinlly with her hus-| not an error of judgment, but an band for the benefit of the wife,i usurpation of power, it is not con- that the bond wa.s given to tlie Inus-, elusive, and may be drawn in ques- band a/o?ie, and to his heirs. She tion in a collateral proceeding. 225 is the surviving mortgagee, and has 12. The court will not grant a writ a clear right to enforce iier remedy of ne exeat against the husband, or under the mortgage. Burlew Hillman, 23 , A party beneficiaJUi interested in a contract may maintain a suit in an injunction to restrain him from alienating his property, upon the mere appreliension of an abandon- ment. Anshutzv. Anshuiz, 162 equity in his own name to enforce 13. A bill will not lie for divorce on such rights, though he be not a party to the in.strument creating them. 16.1 3. Where there are several parties in' interest, and the mortgagor is inj doubt as to the rights of the com- plainant under a bill to foreclose,' the ground of desertion, where the parties are living apart under ar- ticles of separation, or by nuunal agreement, and where the party seeking it has not expressed a de- sire to terminate the agreement. Moores v. Moores. 276 he is entitled to have the question 14. A voluntary agreement between judicially determined for his own security, but not at the cost of the| mortgagee. Ib.l 4. The general rule is that the riort-l gagee is entitled to costs, both on bills to redeem and to foreclose. Ib.l 5. The rule, irrespective of the statute,] husband and wife to live .separate, constitutes no bar to an action, by either of the parlies, for a restitu- tion of iuarit;il rigjits. Nor does it operate in the eye of the law, as a release of either of the parties from their matrimonial obligations. lb. is that where a sole phiintiti' orde-!15. A court of equity has the power fendant dies before decree, the suit cannot be revived at the instance of the defendant, or of his legal representative. Benson v. Wolver- ton, 110 6. The statute has not altered the to aid a judgment creditor to reach the property of his debtor, either by removing fraudulent judgments or conveyances wiiich obstruct the plaintifi"'s remedy under the judg- ment, or by appropriating in satis- 583 INDEX. faction tliereof, rights or equitable interests of the deCentliUil, which are not the siibject of legal execu- tion. Robert V. Hodges, 299 16. If a creditor seeks the aid of tid-^ court ngainst the real estate of his debtor, he must show a judgment at laiv creating a lien on such es- tate; if he seeks aid in regard lo the personal estate, he musi show an execution giving him a legal preference or lien on the goods and cliattelri. " lb. 17. To reach an cquildhle interest of the debtor,4iie creditor must first liave taken out execution at law, and have required it to be levied or returned, so as to show a failure of his remedy at law. Equity will only grant its aid to enforce legal process, when it appears that the legal remedy of tlie complainant is exhausted. Ih. 18. A creditor at Inrge, or before judg- ment, having no specific lien on his debtor's property, is not entitled to the interference of equity, by in- junction, to prevent the debtor from disjiosing of his property in fraud of his creditor. lb. 19. An attaching creditor, having a lien upon the propeity of his debtor by authority of the statute, prior to the recovery of judgment, is en- titled to the aid of a court of equity to enforce his legal right. 300 20. If the court, where judgment is recovered, bave jurisdiction of the person of the defendant, and of the subject matter of the suit, its concbisivencss cannot be ques- tioned in the forum of another state, where it is sought to be en- forced, lb. 21. The tiling of exceptions to an an- swer, constitutes no technical ob- jection to the dissolution of an in- junction. The court will look into them merely to ascertain whether they relate to the points of the bill upon whicli the injunction rests. lb. 22. It is within the power of a court of equity to consolidate actions with or without the consent of the complainants. Jiarnham v. Dal- ling, 310 23. The order for consolidation is not of right, but is matter of discre- tion, and upon such terras as the court may direct. lb. 24. Where a guardian has failed to account as reipiircd by law, and sets up a prior account as a bar to accounting in this court, and a de- cree for an account is made, the complainant will be allowed costs up to the decree. lb. 25. A party in interest having died since the argument, and before the signing of the decree, the decree and orders in the cause should be signed and filed as of the date of the argument. Jb. 20. An order for that purpose is ne- cessary, lb. 27. The return of the shcriflT that the defendants are not, either in their jiartnership name or as inilividuals, seized or possessed of any estate, real or personal, which could be seized or taken by virtue of the execution, must be taken as prima facie evidence of the fact, and is sufiicieiit to give the complainants a standing in this court. Randolph v. Daly, 314 28. Upon a bill filed to recover the interest of a legacy only, a decree cannot be made for the payment of the princijial which has fallen due since the liling of the bill. Jordan V. Clark, _ 243 29. Such decree is not within the spe- cial prayer for relief, and could not have been [irayed for at the time of filing the bill. If relief is asked, to which the complainant is not entitled, the bill is demurrable. lb. 30. Under the general prayer for re- lief, thg relief granted must be agreeable to the case made by the bill, and such as the case stated will justify. lb. 31. In a foreclosure suit, if the mort- gage is forfeited, and the complain- ant entitled to a decree of fore- closure at the time of the com- mencement of the suit, a decree for the whole amount due upon the mortgage, whether it becomes due before or after the filing of the bill, is strictly within the prayer for relief, and such as the case stated will justify. lb. 32. When the title of cestui que Irusta to the fund in question is involved, INDEX. 689 no decree will be made unless thej are belbre the court. Heed's ex'ri-- V. Meed, _ _ _ 248 33. On tiniil hearing, permisj^ion given to amend by consent, by adding necessary parties wiliiin ten days, and beture signing the decree. Jb. 34. Gross laches and long delay on the part of the eoniplainant in a simple foreclosure case, in com- mencing and prosecuting his suit, is unjust and oppressive to the de over by way of remainder, the legatee in remainder is no Ion ;er entitled, as formerly, to call upon the tenant for life for security tliat the chattels shall be forthcoming after lus decease. The recognized practice of the court now is, to require an inventory to be signed by the devisee for life, and to be deposited with the master for the benefit of all parties. Howe's ex'rs V. White, 411 fL-ndant, and is a strong circum- 43. Personal property not given spe stance against the justice of the complainant's claim. Hhipman v. Cook, 261 35. A commission under wliich a par- ty has been found an habitual drunkard, will not be superseded upon a hearing without notice, nor upon ex parte affidavits, even with tiie assent of the* guardian. In re Weis, _ _ 318 36. The practice in proceedings to supersede a commission, in cases of habitual drunkenness, should be substantially the same as in cases of lunacy. J b. 37. The truth of the facts alleged in the petition may be examined either in open court or before a master. Proceeding by reference to a master adopted as the most convenient, safe, and expeditious coiirse. Jb. 38. In an application for alimony pendente lUe, the case must be ta- ken most strongly against the pe- titioner. The burthen of proof is upon her. Wallincj v. Walling, 389 39. All the facts upon which an order for alimony is founded, must be proved. The order must not rest upon mere presumption or con- jecture. Jb. 40. Where the circumstances upon which a proper adjustment of ali- mon/ materially depends, do not appear in the petition, a reference to a master will be ordered, to as- certain the real facts of the case Jb 41. Under the special circumstances of this case, the question was dis- posed of upon the facts stated in the petition, without a reference. 390 42. In the case of a specific bequest of chattels fur life, and a limitation Vol. I cifically but cjenerally, or as a resi- due of personal estate, must be converted into money ; the inter- est only to be enjoyed by tlie ten- ant for life, and the principal re- served for the remainderman. Tliis rule prevails, unless there be in the will an indication of a contrary intention. Jb. 44. Where a legacy is given generaW iy, subject to a limitation over upon a subsequent event, tiie di- vesting contingency will not pre- vent the legatee from receiving his legacy at the end of a year from the testator's death, and he is not bound to give security for repay- ment of the money in case the event should liai)pen. lb. 45. In the case of a legatee for life, or subject to a limitation over, in order to justify the requisition of security from tlie first legatee, there must be danger of the loss of tlie property in the hands of the first taker. lb. 4G. The mere fact that the legatee for life is a. feme covert, cannot in itself furnish any evidence of danger of loss. Jb. 47. A bill for relief on the ground of danger of loss of a legacy for life, subject to a limitation over by way of remainder, is in the nature of a bill quia timet, and may be filed as well against the executor himself where the fund is in his hand, as against the legatee fur life, where the fund is in his hand. Jb. 48. An objection to a suit that the amount involved is too trivial to justify tlie court in taking cogni- zance of it, may be taken advan- tage of, by special motion to dis- miss the bill, or the court may of its own motion at the hearing, or- 2o 590 INDEX. der the bill to be dismissed. Swedes- borough Church V. Shivers, 453 49. If a suit have no other object than the mere recovery of a .sum of $1.75, the bill will be dismi>. ^Vhere a party, as security for money loaned, has taken an assign- ment of a pre-existing judgment against the borrower, and, as a fur- ther security for the same debt, has also taken a bond and mortgage ; a decree of this court declaring the bond and mortgage usurious and void, will not avail the debtor in a bill for relief to have the judg- ment declared satislied of record, the assignment being untaintctl with usury. Ih. 57. The evidence of a co-defendant is not rendered incouifietent by the fact that no order was made for his examination. Since the act of 1859, {Nix. Big. 928, § 34,) remov- ing the disqualilication of interest in a witnes.-^, as a party or other- wise, no order for his examination is* necessary. 76. 58. Nor is it anji objection to the competency of a co-defendant to testify, that he has not answered the bill, but has suffered a decree pro confesso against him. The com- plainant may, at his discretion, re- quire him to answer. But if he do not, the defendant, by iailing to answer, cannot deprive his co-de- fendant of his testimony, or dis- qualify himself as a witness in the cause. lb. 59. Upon a bill for an account, the only material evidence upon the original hearing, is that which con- duces to prove the com]jlainant'3 right to an account. The ordinary decree is that an account shall be taken. Evidence as to the partic- ular items of the account is irrele- vant, and, in strictness, inadmissi- ble at this stage rtf the cause. Hudson v. Trenton Locomotive and Machine Mdnnj'nctnring Co., 475 60. As a general rule, the court will not, at the original hearing, exam- ine or decide whether particular items of the account shall or shall not be allowed. 476 61. The court must, it would seem, settle the construction and effect of agreements between the parties, by which their muttlal dealings were regulated, and by which, conse- quently, the account must be con- trolled"", lb. 62. The court will give special direc- tions to the master as to the man- INDEX. 591 ner of taking the account, and tlie prineiiilen by wliicli he sliould be governed in taking it. 76. 63. The decree nmsl direct to what matters tlie account sliall extend, and in decreeing a general account, special directions will be rendered proper and necessary by the par- ticular circumstances of the case. lb. 64. Where the evidence has been taken on both sides before the hearing, without objection, it may be used by the court, so far as may be ne- cessary, in giving directions. lb. 65. A suit for foreclosure upon each of two mortgages covering the same premises, both of which were in the hands of the complainant when the first bill was filed, is un- necessary and oppressive, and costs will be allowed but in one suit. Demaresf, v. Berry, 481 66. But where the second bill was rendered necessary by the fact (discovertd ai"ter the filing of the first) that the mortgage, upon which the first bill was filed, covered a ])art only of the premises included in the other mortgage, proceedings in the first suit will be stayed, and the second suit alone proceed to decree. Jb. 67. Where the notice requiring cred- itors to present theii- claims, has been given in pursuance of an order of the Orphans Court, under section 3d of the "act concerning the estates of persons who die insolvent," {Nix. Dig. 386,) the creditor cannot be admitted to a dividend of the estate, unless his claim has been presented under oath, within the time limited by the order. Gould v. Tinqley, 501 68. Nor does it obviate the necessity of presenting the claim under oath, that the order and notice requiring claims to be exhibited, were made by the surrogate under section 22d of the act of 1855. Nix. Dig 58!). lb. 69. The act of 1855, on proceeding under a rule to bar creditors, hav- ing required the claim of the cred- itor to be made under oath, dis- pensed with the necessity of a sec- ond presentment of the same claim under proceedings to declare tlie estate insolvent. lb. 70. The requirements of both acta are imperudve, not directory mere- ly, lb. 71. The question involving the con- struction of a recent statute, the decree is made without costa against the appellant. lb. 72. Evidence taken under an order of the Prerogative Court to be used upon the hearing of an appeal, ia competent. Sayre's adinr v. Sayre, 605 73. It is no valid objection to a de- cree of distribution, that it is made in favor of parties who are not applicants therefor, and whose shares have been satisfied or re- leased. 506 74. The decree of distribution is final and conclusive between the admin- istrator and the distributees, as to the amount of each share, and the party entitled to receive it. It is an efiectual protection to the administrator, against all claims for moneys jiaid pursuant thereto, though it should prove that the decree was erroneous, and the raonev paid to a partv not entitletl. lb. 75. The remedy by a party deprived of his rights by the decree, is not against the administrator, but against the distributees who have wrongully received the estate. In their favor, as against the rightful claimant, the decree does not oper- ate, lb. 76. It is no part of the office of a decree of distribution, to settle whether the share has been paid, in whole or in part, or whether the legal or equitable interest in the fund may have been assigned. Its office is simply declaratory of the rights of the legal rejiresenta- tives or next of kin in the estate of the intestate. Jh. 77. The question, whether an admin- istrator has actually paid a claim under the order of distribution or not, can only be properly tried by suit. lb. 78. But no action can be brouglit by the claimant, until the decree of distribution is made. The decree, it would seem, must of necessity be made, in order that the right may be properly tried and decided. lb. 592 INDEX. 88. Where, as in our practice, prior encumbrancers are permitted to be made parties to a bill lor foreclo- sure and sale of morlgaged prem- ises, if the first mortgagee, defend- ant in such bill, comes in with hia mortgage, he simply assents to the relief prayed for by the complain- ant. ' Jb 80. The order for distribution may be 89. As against the first mortgagee, the made at the instance of the admin- relief prayed for will not bo grant- istrator, or of any one of the dis- ed, unless by his consent, or upon tributees. If made at the time of payment of the amount actually the settlement, no further notice isl due upon his mortgage. lb. necessary. lb. ,90. Where, to a bill for foreclosure 79. The decree upon the final' settle- ment and allowance of adminis- trator's accounts, is final and con- clusive upon all parties interested. It ascertains and declares the net balance in the administrator's hands, and the sum for whicJi he must account to the distributees. lb. 81. A separate decree cannot be made' at the instance of each of the claimants. Jb. 82. One decree only, can protect the administrator. lb. 83. The design of the act of 1856, {Nix. Dig. 590, § 3,) supplementary to the Orphans Court act, was, that notice should be given to the ward, of an intended settlement by his guardian. No notice to, or appear- ance by the guardian, can be a waiver of the notice prescribed by the act. Culver v. Brown, 533 84. Fifteen per cent, commissions hav- ing been allowed by the Orphans Court, the law authorizing but the answer of the owners of the equity of redemption raises the defence of usury to the mortgage of a co-defendant, such answer is in the nature of a cross-bill, seek- ing relief against the usurious mortgage. Jb, 91. Upon a bill filed by a second mortgagee for foreclosure, and seeking to avoid the first mortgage as usurious, no decree will be made declaring the usurious mort- gage a valid encumbrance for the amount actually advanced, unless by the consent, express or implied, of the owners of the equity of re- demption, to the proceedings. 551 seven per cent., the decree must be 92. But if the parties interested in corrected. 1 b. 85. The well settled rule in equity is, that if the lender comes into court seeking to enforce a usurious contract, equity will repudiate the contract. But if the borrower seeks relief against the usurious :;ontract, the only terms upon which the court will interfere, are that he shall pay what is really and bona fide due. Jludnit v. Naah, 550 86. A bill for foreclosure by a second mortgagee, making the first mort- gagee a defendant, as against such first mortgagee, is, in efi'ect, a bill to redeem, not to foreclose. lb. 87. The first mortgagee is not a neces- sary nor a proper party to a bill by a subsequent mortgagee, if the sole design of the suit is a foreclo- sure of tiie equity of redemj)iion. Technically, all that can be asked in such case is, that the complain- ant be permitted to redeem the prior encumbrance. lb the equity of redemption, concur in the prayer of the bill by resist- ing the usurious mortgage, and the cause is brought to final hearing upon the pleadings and proofs, a decree pronouncing the mortgage usurious, and declaring it an en- cumbrance only for the amount actually advanced, will not be re- versed at the instance of the owner of the equity of redemption. lb. PRAYER. See Pleading, 21. Pkactxce, 29, 30, 31. PREROGATIVE COURT. See Jurisdiction, 3. Practice, 72. INDEX 593 PEINCIPAL AND AGENT. 1. Where a party negotiiites with an other's agent for the h)an of a sum of money, and delivers to tiie agent a bond and mortgage duly executed to the principal, but the whole amount of money is not paid over to the mortgagor by the agent ; in Bueh case, if the principal settle with the administrator of his agent, and excepts the securities as evidence of so much money ad- vanced by the agent, and allows the amount in the settlement of the account, the mortgagor is estopped, as against the princii)al, from denying that he received the money. Kirkpatrick v. Winans, 407 2. If the money were not paid over by the agent to the mortgagor, and he designed to look to the mort- gagee, he should have given notice of such intention. By failing to do so, and permitting the settle- ment 10 be made, he is estopped from making any claim against the mortgagee. 408 3. Tiie principal is not liable for the unauthorized or wrongful act of liis agent in withholding a part of the money, or in giving his own notes payable at a future day, in lieu of the money of the principal in his hands. The remedy is against the agent only. lb. See Partnership, 4. Usury, 3. PUKCHASER. 1. Equity will protect the title of a bona fide purchaser for value, with- out notice of fraud, though he pur- chase from a person with notice. Smith V. Vreeland, 198 2. A purchaser with actual or con- structive notice of fraud, though he pay a valuable consideration, takes title subject to all the equities to which it was liable in the hands of the vendor. In such case he will not be permitted to protect him- self against such claims, but liis own title will be postponed and made subservient to them. Jb. 3. A purchaser is presumed to have knowledge of all the facts disclosed by the deeds under which he claims title. 199 4. A purchaser cannot claim to be a bona fide purchaser without notice, where the facts patent upon the face of his title and under his im- mediate observation, are sutiicient to put him upon inquiry. lb. 5. Where a pany has proceeded to a sale under his execution at law, and become himself the purchaser of the property for a very inade- quate consideration, the court will not set aside the prior conveyances, and perfect the title under the ex- ecution, to the prejudice of other judgment creditors. All that the complainant can ask in equity is the payment of his debt. If his legal rights are more extensive, they must be enforced at law. lb. 6. A court of equity, in the exercise of its discretion, will not compel a purchaser to accept a title depend- ing upon an illegal and invalid sale, while it remains open to re- view, although the judgment unre- versed might be conclusive upon the party's rights. Young's adm'r v. Rallibone, 225 7. Where the covenantee, in a con- tract for the conveyance of land, permits a purchaser to acquire title, take possession of the premi- ses, and pay the purchase money without an intimation of his claim, under the covenant, or of his will- ingness to accept the title, he has nd claim to relief in equity. Van, Doren v. Robinson, 2o7 8. The title of a purchaser under a sheriff's sale, is co-extensive with the description contained in the mortgage, the bill to foreclose, and the writ o[ fieri facias under which the sale was made. McGee v. Smilh, 462 9. It is not necessary that the decree should describe the premises pre- cisely ; it is usual to designate them in the decree by reference to the bill. lb. 10. A party to a foreclosure suit is bound by the decree, and cannot contest the title of the purchaser under it, while the decree and the sale and conveyance remain in force. lb. 594 INDEX. 11. Where a defendant has filed an answer (o a bill to foreclose, a pui chaser at a sheriff's sale under the decree, is presumed to have pur chased upon the faith of that an swer, and in reliance upon the truth of its statements. Such de- fendant is estopped from denying the truth of the answer, to the pre- judice of the purchaser's title. 4G3 See Agreement, 6, 12. Sale of Land, 8. KENT. See Jurisdiction, 5. Pleading, 36. EEVIVOK. See Practice, 5, 9. SALE OF LAND. 1. A sale by auditors in attachment of several tracts of land, lliat might conveniently and reasonably have been sold separately, and where a sale of part would have been suf- ficient to satisfy the debts of the plaintiff and the applying credi- tors, is a clear breach of trust, and will be set aside as void. Johnson V. Oarrett, 31 2. A bona fide purchaser of land, sub- ject to the lien of an attachment, is entitled to relief against an il- legal or inequitable sale by the auditors. I-?. 3. Where a judicial sale is set aside on the ground of gross negligence or abuse of trust, the officer mak- ing such sale, as well as the pur- chaser acting in collusion with him, will be condemned in costs. But where there is no charge of actual fraud or collusion, neither the officer nor purchaser will be condemned in costs. lb. Land owned by two tenants in com- mon was ordered to be sold by com- missioners appointed to make par- tition thereof. At the first sale the land was struck off to one of the tenants in common, who refused to accept the deed or pay the purchase money The premises were there- upon again exposed to .«ale, and struck off for a less sum. By the terms of the first sale, if the pur- chaser refused to comply with the conditions, the property was to be re-sold, and the purchaser held liable for the loss. The deficiency on the second sale was $1,200. On the distribution of the proceeds of sale, the co-tenant claimed, as against the purchaser at the first sale, an allowance for the loss sus- tained by reason of iiis non-com- pliance with the conditions. The claim being disputed, and an order of distribution having been made, the commissioners refused to pay over the money in compliance with tlie terms of the order, and filed a bill of interpleader, asking to have the right determined. There was some dispute as to the terms of the order for distribution. Held — The only legal evidence of the terms of the order of the court, is the record, or a duly certified copy thereof. Evidence of what passed at the time of making it, or of the precise terms of the order itself as directed by the court, is incompe- tent. The deficiency incurred by a re- sale of the property, can only be recovered by an action brought by the commissioners, and when re- covered, be distributed by order of the court, as part of the money arising from the sale of the land. Tiie deficiency can constitute no legal set-ofl' against the claims of the defauliing co-tenant for his share of the proceeds of the sale under the order for distribution. The case furnishes no ground for a bill of interpleader by the com- missioners. Michner v. Lloyd, 38 If the sale is by the acre, and the statement of the number of acres is of the essence of the contract, the purchaser, in ease of a defi- ciency, is entitled in equity to a corresponding deduction i'rom the price. Wearl v. Rose, 290 Where the difference between the actual and estimated quantity of acres of land sold in the gross, is so great as to warrant the conclu- INDEX. 595 sion tliat the parties would not have contracted, had tlie truth been known, in such case the party injured is entitled to relief in equity on the ground of gross mis- take, lb. SET-OFF. See Sale of Land, 6. SHERIFF'S SALE. 1. Whether the execution commands the sheriff to sell so much of the premises as may be necessary to satisfy the decree, or to raise the sum required out of the premises, the duty imposed upon him, as to the quantity of land to be sold, is the same. His duty, in either event, is to sell only so much of the premises as may be necessary to satisfy the requirements of the ex- ecution, provided such portion can be conveuiently and reasonably detached from the residue of the property. Vanduijne v. Vanduyne, 2. A mere error of judgment, or mis- taken exercise of discretion, by the sherifT, in the absence of fraud or unfairness in the sale, affords no ground for the interference of the court. lb. 3. A judicial sale will not be inter- fered with, when the party seek- ing relief has been guilty of laches in the pursuit of his remedy. lb 4. Motion denied witliout costs, the applicant acting in behalf of mi- nors, lb 5. Gross inadequacy of price in tiie absence of fraud, mistake, illegal ity, or surprise, is not sufiicient to set aside a sheriff's sale and con- veyance under an execution at law. Smith v. Duncan, 240 6. A court of equity will not afl'onl relief where the complainant has been guilty of gross laches, or where the injury was caused by his own inexcusable negligence and inatten- tion to his interests. 76 7. A sheriffs sale and conveyance will not be set aside where the property has been resold to a third party for a valuable consideration, wilhout notice of the complain- ant's equity. Where the equities are equal the court will not inter- fere with the party holding the legal title, either for discovery or relief. lb. 8. The legal title to land is not affect- ed by a sheriff's deed, where, at the time of the levy and sale, the title was not in the defeftdant in execu- tion. Belford v. Crane, 265 9. The well settled doctrine of the court of equity is, that mere inade- quacy of jyrice affords no ground of relief, either against a private contract or a judicial sale. Cum- mins V. Little, 48 10. But inadequacy of price may be so gross and unconscionable as to shock the conscience, and, in the case of a private contract, to amount to conclusive and decisive evidence of fraud ; or, in the case of a judicial sale, to constructive fraud and abuse of trust. lb. IL That is a public and a proper place for setting up advertise- ments, contemplated by the act regulating sales of real estate, which is likely to give information to those interested, and who may probably become bidders at tlie sale. lb. 12. The sherifif is bound to conduct the sale so as to protect the rights and promote the interests of all parlies in interest, and to this end to secure, as far as practicable, the most general diffusion of the notice of sale. lb. 13. The true test of a proper exercise of discretion by the sheriff in set- ting up notices is, whether he has set them up as a discreet man, desirous of effecting a sale of his property to the greatest advantage, would have done. lb. 14. If a sheriff abuses, to the detri- ment of subsequent encumbi-an- cers or of the defendant in execu- tion, the discretion vested in him by law to make sale under execu- tion, a court of equity will grant relief, although there has been a formal compliance in the conduct of the sale with all the require- ments of the statute. 49 15. It is not necessary that there 596 INDEX. should be actual fraud, committed or meditated. Tiie abii^e of discre- tion in the execution of tlie trust is a constructive fraud, against which equity will relieve. lb. ]6. Where a sale by a public officer is conducted in violation of tlie spirit and policy of the law, and so as in fact to defeat the just claims of encumbrancers, or greatly to pre- judice the rights of llie defendant of being performed by reason of some difficulty inherent in the sub- ject matter of the contract, a spe- cific performance will not be de- creed, lb. 8. Specific performance is relief which equity will not give unless in cases where the parties seelting it, come as promptly as the nature of the case will permit. Van Doren v. Robinson, 257 in execution, the sale will be set 9. A party, who seeks the specific aside, though the fornuil require raents of the statute have been complied with. lb. SPECIFIC PERFORMANCE. . 1. The enforcement of the specific performance of a contract is an exercise of the extraordinary juris- diction of the court, resting in sound discretion. Gariss v. Garis.'f, 79 2. Specific performance will not be decreed, wiiere the party seeking it lias been guilty of laches, or neg- ligent in his application. lb. 3. Where a contract is certain and fair in all its parts, and for an ade- quate consideration, and the parly seeking its enforcement has held himself ready to perform it accord- ing to its terms, without default on his jiart, and has been pi'ompt in his application for relief, a court of equity will decree a specific performance of the contract, as a matter of course. Hopper v. Hopper, 147 4. It constitutes no objection to a de cree for specific performance, that the application is made to enforce ihe payment of the purchase money, and not to compel a delivery of the title. " lb 5. The doctrine is well established that the remedy is mutual, and that the vendor may maintain his bill in all cases where the pur- chaser could sue for a specific per- formance of the agreement. lb 6. Mere pecuniary inability to fulfil an engagement does not discha the olJigation of the contract, nor does it constitute any defence to a decree for specific performance. lb. 7. Where the contract is not capable performance of a contract, must show that he has performed, or been ready and willing to perform, all the essential terms of the con- tract. Thorp V. Petlit, 48 10. The answer of the defendant being directly responsive to the allegations of the bill, and a full denial of its equity, injunction dis- solved, lb. See Agreement, 4 to 10. STATUTES. the the It 18 an established rule in exposition of statutes, that intention of the legislature is to be derived from a view of the whoie, and of every part of the Etatute taken and compared together. The real intention, when ascertained will prevail over the literal sensa of terms. When words are net explicit, the intention is to be col- lected from the context, from the occasion and necessity of the law, from the mischief felt, and the remedy in view ; and the intention is to be taken or presumed, accord- ing to what is consonant to reason and good discretion. 3Iorris Canal and Banking Co. v. Central Mail- road Co., 419 SURPRISE. See Evidence, 16. Sheriff's Sale, 5. TAX. By the act of 1854, Nix. Dig. 851, § 64, when the mortgagee resides INDEX. 597 ■ in a different township from tliat in whicli the mortgaged premises lie, tiie tax on the money secured by the mortgage is to be assessed against and paid by the mortgagor in the townslisliip where tlie lands lie, and the receipt of the collector therefor is made a legal payment for so much of the interest of the mortgage, and is to be allowed and deducted therefrom by the mort- gagee. Held — 1. Ths payment of the tax and the receipt of the collector is a legal payment of so much interest, not of principal ; a payment of the accrued and accruing interest, not of interest to grow due at some future time. 2. When a mortgagor, entitled to have the tax assessed against and paid by him deducted from the interest, has paid the interest in full as it became due, without deducting the tax, he caimot afterwards claim any deduction therefor from the arrears of interest. Keener/ v. At wood, 35 3. The power to sell land for the paj'- ment of taxes, is a naked power, not coupled with an interest, and must be exercised in strict accord- ance with the provisions of the statute. Every prerequisite to the exercise of the power must pre- cede it. Hopper v. Mallesoii's ex'rs, 382 4. To establish a title under a sale for taxes it is incumbent on the pur- chaser to show that all the prere- qiusites to the exercise of the power of sale have been complied with The deed is not even prima facie evidence of that fact. lb. 5. It is essential to the validity of a sale of land, under the " act to make taxes a lien on real estate in the county of Passaic, ajid to au- thorize the sale of the same for the payment thereof," {Pamph. L. 1852, p. 247,) that it should appear that the tax was assessed on ac- count of tlie property sold. lb. 6. The recital of the tax warrant, " whereas it appears to the mayor and aldermen of the city of Pater- son, that an assessment of four dol- lars and fifty cents of taxes, &c.," is not legal evidence of the fact of an assessment, nor of demand of payment. lb. 7. The assessment itself is the only competent and legal evidence of the fact of an assessment. lb. 8. Where the tax warrant directs a sale to be made to raise a sum larger than the whole amount due, it is a clear excess of autiiority, and renders the warrant, so far as it af- fects tlie land in question, null and void. lb. 9. Even if all the requirements of the statute had been strictly complied with, so as to confer upon the pur- chaser at such sale a valid title against the heirs of the former . owner, and all claiming under them, a prior mortgage given by their ancestor would not thereby have been extinguished. 3S3 10. The phrase owner or owners {Nix. Dig. 853, § 77, and Pamph. L., 1852, p. 249, ^ 7,) was used to denote the owner of an estate in possession at the time of the assessment, and not a prior owner, or the owner of an estate in expectancy, or of any ex- ecutory or contingent interest, and the design of the act was to make the interest of such owner only, and those claiming under him, lia- ble for the tax assessed. Jb. 11. The right of a mortgagee is not defeated by a tax sale, where the mortgage was not given by those who were owners of the land at the time of the assessment, or against whom the tax was ii-ssessed, but is a title paramoimt to theirs. Such mortgage is a valid aiui subsisting encumbrance upon tiie land in the j hands of the purciiaser at the sale. lb TENANT FOR LIFE. A tenant for life is entitled to worK a mine, quarry, clay-pit or sand- pit, which has been opened and used by the former owner. It is a mode of enjoyment of the land to which he is entitled. Heed's ex'rs V. Reed, 248 TRUST AND TRUSTEE. 1. Where real estate is in /aci paid for 598 INDEX. with the funds of a company, there is clearly a res^idtinr/ truat in favor of the company, altlioiigh the deed therefor is made absolute to a third party, and purports upon its face to be for his own use and benefit. Stratton v. Dialogue, 70 2. A party so taking the title, be- comes a trustee for the creditors and stockholders, and the trust will be enforced lor their benefit at the instance of the receiver. lb. 3. Where a mortgage is given to se- cure a trust fund belonging to the mortgagor, as between himself and the holder of a second mortgage given by him, he can have no claim in equity to the fund, until the second mortgage is satisfied. Tap- yjan's ex'r v. Ricamio, 89 4. It is.within tiie power of a court of equity to protect the interests of legatees in remainder, during the life of the tenant for life; and the power will be exercised, not only in behalf of the legatee, but also of his assignee, or of any other per- son legally entitled to the fund, upon the determination of the es- tate for life. lb. 5. If a trust fund is in danger of being diverted to the injury of any claim- ant having a present or future fixed title thereto, the administration of the fund will be duly secured by the court, in such manner as the court may in its discretion, under all the circumstances, deem best fitted to the end. Jb. 6. Upon the death of one of several cotrustees, the office of trustee will devolve with the estate upon the survivor, and ultimately upon the heir or personal representatives of the last survivor. Trusts of real estate, upon the death of the trus- tee, devolve upon his heir-at-law; trusts of personalty vest in his ex- ecutor or administrator. Schenck V. ScJienck's ex'rs, 174 7. If a trustee, by his own negligence, suffers his co-trustee to receive and waste the trust fund, when he has the means of preventing such re- ceipt by the exercise of reasonable care and diligence, he will be held res|)onsible for the loss. 175 8. Where the duty of a trustee is a matter of doubt, it is his undoubt- ed right to ask and receive the aid and direction of a court of equity in the execution of his trust. Kear- ney v. Macomb, 189 , A change in the ecclesiastical rela- tion of a church for whose benefit properly is held in trust, does not necessarily involve any perversion of the trust, or diversion of the fund from its legitimate purpose. Swedesborough Church v. Shivers, 453 See Deed, 3. Executors and Adminis- TRATOKS, 1 to 6. Fraud, 1, 3. Husband and Wife, 1, 6, 7. USURY. 1. It is no valid objection to a de- fence of usury, that the mortgage sought to be tbreclosed was given for a part of the pwchase money upon a contract for the sale of land, and not for a technical loan of money. Diercks f. Kennedy, 210 2. The taking of illegal interest, either upon a lending of money, or upon the forbearance cf a debt, consti- tutes usury. lb. 3. If an agent, in miking a loan of money, accept from the borrower a bonus beyond the legal rate of in- terest, such act o*' the af^ent will not render the ccntract usurious, if the bonus was t^vken without the knowledge of the i)rincipiil, and was not received b/ him. Muir v. Newark Savings hipiitution, 537 4. The reservation of interest for money actually on hand and sub- ject to the call of the borrower, during the time Ik* is engaged in completing his securities, is not usurious. lb. 5. The essence of the o"^ence of usury is a corrupt agreemeut to contra- vene the law. Any ontrivance to evade the statute, and to enable the lender to receive n'ore than le- gal interest for his money, renders the contract a corrupt one. And the law will infer the corrupt agreement, when it appears by the face of the papers or otherwise, that illegal interest was intention- INDEX. 599 allv reserved, although the ille- galily arose from a uiistiikeii con structiou of the law. 1 b. VENDEE. See Agreement, 6. VOLUNTARY CONVEYANCE. See Fraud, 5. Husband and Wife, 2, 4, 5. Married Women, 10. WILL. 1. Where a testator, by liis will, pro- vides that his minor chiklren shall receive their maintenance u{)on his homestead farm, so long as the devisees and their mother agree to continue upon it andsnpixirt them tliere, if the ciiildren, without the consent of their mother and tiie devisees, leave the farm din-ing the period for which the testator pro- vided for their maintenance there, they can claim it in no other form ; but otherwise, if they leave by con- straint, and not from choice. Jor- dun V. Clark, 243 2. Where an adequate motive for the destruction of a will is assigned by the i>arty seeking to establish it, and clearly confirmed by the evi- dence, the court will not, upon mere conjecture, impute an inaflequate and dishonest motive. Wyc/coffv. Wyckoff, _ 401 3. The true rule is, that the will nuty be established upun sali^ifactory proof of its destruction, and of its contents or substance. Whether the proof be by one witness, or by many, it must be clear, satis- factory, and convincing. //). 4. The cost of establishing the will, and of taking out letters of admin- istration, ordered to be jmid out of the estate, the burden falling upon the residnary legatee, by wiiose act the costs were oceasioneil. lb. Isaac Howe, by his last will and tes- tament, gave as follows: " 1 give and devise unto Sarah White the sum of §5,000, to be paid unto the said Sarah White ; and if the said Sarah White die without an heir or heirs, the said sum of $5,000 is to go to Leonard Crum, the son of Henry Criun." Held — 5. Tliat the first legatee takes a pres- ent vested interest in the fund, liable to be divested upon the con- tingency of her dying without is- sue. The limitatiiin over, being upon a definite failure of issue, is good by way of executory bequest. Hoice's ex'rs v. While, 411 G. A direction by a testator " that all the rest and residue of his estate of what kind soever there might be at the time of his death," should be converted into money by his executors, &c., extends to and in- cludes such real estate as he may have arqnirfd after the making of the will, and sucli land is subject to the power of sale conferred upon the executors. Fluke v. Fluke's ex'rs, 478 7. Until the sale be made, the legal title descends to and vests in the heirs-at-law of the testator, as ten- ants in common. J b. 8. The heir-at-law. takes the legal title charged with the trusts created by the will. Equity will not in- terfere witii the execution of the trusts by the executors. It regards as actually performed, that which is directed to be done. 479 9. Lands directed by the testator to be sold and converted into money, and tiie proceeds distributed either among the lieirs or other legatees, is regarded as a gift of money. lb. 10. Where the whole beneficial inter- est in the land directed to be con- verted into money, belongs to the person or persons for whose use it is given, equity will not compel the trustee to execute the trust against the wishes of the cestui que trust, but will permit him to take tlie land, if he elect to do so before the conversion lias actually been made. But where there are several cestui que intsls taking diHerent interests under the will from what they would do as heirs-at-law, there is no case for the application of the doctrine of election, and the ex- ecutor must perform the trust cre- ated by the will. Jb, See Executors and Administra- tors, 5. Legacy. D 000 551 676