Volume 1 — Clarke Chancery Reports

<p>The proceedings to foreclose a Mortgage in Chancery, are not stayed because a suit has been commenced at law, upon the bond, even though it appears that such suit has not been discontinued.</p> <p>Such proceedings in Chancery are only stayed when there has been a judgment at law.</p> <p>It seems that if a suit at law is commenced upon the Bond, and before Judgment is obtained thereon, a bill is filed in Chancery, to foreclose the Mortgage accompanying the Bond, that the filing of the bill and the operation of the statute works a discontinuance of the suit at law.</p> <p>In a bill for the foreclosure of a Mortgage, the Complainant must state what proceedings at law have been had, if any; and what the state of such proceedings were at the time of filing the bill.</p>

This case shows that Benjamin Rathbun, Oct. 10, 1833, executed a mortgage to Philander Bennett, upon four lots of ground in Buffalo, to secure $1200, upon which mortgage, $800 and interest is yet unpaid and not yet due. One of the lots of land conveyed by this mortgage, was sold by Rathbun before the sales made to complainants. Oct. 1,1834, Rathbun sold to James Wilcox one of the four lots, - and conveyed by warranty deed.

<p>The facts in this case will sufficiently appear from the opinion of the court.</p>

The bill in this cause was filed more than twelve years since, to foreclose a mortgage upon lands in the possession of the defendant claiming title. An injunction was allowed at the commencement of the litigation. One of the complainants has since died, and the defendant has entered into a deed of compromise in relation to this suit with the surviving complainant and the representativos of the deceased complainant.

<p>Upon a motion to dissolve an injunction or ne exeat founded upon the defendant’s answer, affidavits to sustain the bill and contradict the answer will not be heard.</p> <p>Affidavits shewing that there has been a breach of the injunction by the defendant will be heard upon such motion, to enable the court to judge whether the defendant is in contempt.</p> <p>Where E. was employed as the agent of a Land Company, and under contract to deliver up the books of the Company upon his ceasing to be agent, books of correspondence between the agent and the principal, or the attorney of the principal, are not such books, belonging to the Company, as are required to be delivered up upon his leaving the agency.</p> <p>Such books are the private property of the agent, and are necessary for his protection.</p> <p>A bill is sustainable for the specific delivery of- such books of correspondence, in favor of the agent entitled to the property therein and the possession thereof.</p> <p>A decision upon a motion made by a defendant before answer, the conditions of which are not complied with by the defendant, does not prevent him from making a new motion after answer, and upon the answer for the same object.</p> <p>A defendant, against whom there is prima facie evidence of being guilty of a breach of an injunction, cannot be heard upon a motion to discharge a ne exeat againsthim in the same cause, until he has purged himself of the contempt.</p> <p>Especially if the breach of the injunction charged, is the removal of of the subject matter of the suit, from the jurisdiction of this court.</p>

This is a bill filed to set aside a mortgage executed by the complainant to the defendant, June 29th, 1837, for $1585 25 on the ground of usury. The circumstances attending the execution of this mortgage are as follows: Prior to Nov. 21, 1835, the defendant, upon application of the complainant, had loaned to the complainant divers sums of money at different times, and taken his notes for the repayment thereof with interest, as the sums were advanced.

Petition for a resale of mortgaged premises by the Commercial Bank of Buffalo. This bank had two judgments and a mortgage against Colton, the mortgagor, which were junior liens to the mortgage which is the basis of the decree in this suit. Colton also was in debt to the Messrs. Darts of New York, in the sum of about $4,500, of which nearly $3,500 was in judgment. Colton persuaded the Messrs!

<p>A bill will lie to correct a misdescription in a deed, which occurred through mistake, ignorance, or fraud.</p> <p>In a suit brought for the correction of a deed, where the defendant’s oath to his answer is waived, the court will decree according to the preponderance of the evidence.</p> <p>When a clause in a deed is of ambiguous or doubtful construction, parol evidence will be admitted to show the intent of the parties.</p> <p>As when a deed given by one of nine heirs of real estate, to which also there was an existing right of dower, conveying the interest of the heirs in the descended lands, contained also the clause, “ being a division “ after deducting the widow’s dower, being one third as well in pos- “ session as in expectancy,” it was held that parol evidence was admissible to shew the intention of the parties as to the sale or reservation of the grantor’s interest contingent upon the death of the widow.</p>

<p>When a person is taxed in two different places for the same property, when he is only legally liable to be taxed once, and when it is doubtful to which party the right to tax belongs, a bill of interpleader, or a bill in the nature of a bill of interpleader, with a prayer for relief, will lie to compel a settlement of the right of taxation.</p> <p>R. and L. purchased of the Holland Land Company their interest in the -lands, in four counties, which interest consisted of bonds and mortgages for lands sold, contracts for the conveyance of lands, and lands not sold, the title to remain in the Company until the contract was complied with. The Holland Land Company were foreigners. H. and L. resided in Le Roy. Under the act of April 37,1833, in relation to taxation of debts due to foreigners for the sale of lands, it was held that H. and L. were liable to be taxed in Le Roy, only for the amount of the debt which they incurred for the purchase of lands, and not for the debt incurred by the purchase of the bonds, and mortgages, and contracts.</p> <p>The town of Le Roy having assessed H. and L. for the whole debt incurred by the purchase, were restrained from the collection of the tax thereon, except so far as such debt was incurred by the purchase of the unsold lands.</p> <p>The tax upon the bonds, and mortgages, and contracts, was properly assessed in the towns where the mortgagors and purchasers owing the debt resided, according to the proper construction of the act of April 27, 1833.</p> <p>The purchase of bonds, and mortgages, and contracts, for lands sold, and the obligation or debt incurred thereby, does not create a debt for “the purchase of ¡¡real estate,” within the meaning of said. act. Such debt arises out of the purchase of choses in action.</p>

The answer of the defendants who move in this cause was put in, and a replication filed thereto in Nov; 1838. The complainant’s bill was amended in Nov. 1837, by making Thomas Bates a party defendant. The complainant had taken no steps to procure the answer of Bates, or to take his bill as confessed against him.

<p>An order to close proofs will not be extended, unless upon good cause shewn.</p> <p>When a party knows that a particular witness upon the other side will be examined, and knows what the substance of his testimony will be, and has had an opportunity to examine his own witnesses as to the same facts, but neglects to examine them, the order for examination of witnesses will not be extended to enable him to introduce testimony, to explain or avoid the effect of the testimony of such witness after it has been taken.</p>

<p>The facts of this case will sufficiently appear in the opinion of the court.</p>

<p>The facts in this case sufficiently appear fropa the opinion of the court.</p>

On the 30th December, 1836, Lowry and Irwin, two of the complainants made a written arrangement with the cashier of the Chautauque County Bank, for the borrowing of $ 40,000 at various times and upon certain conditions. This arrangement was repudiated by the directors of the bank, early in January thereafter. Lowry and Irwin were connected with the Lumberman’s Bank in Pennsylvania. .

<p>An objection taken at the hearing, that the complainants in Chancery had a sufficient defence at law, will not be available to prevent a decree, unless the defendant in Chancery sets up such ground of defence specifically, either by demurrer, plea, or in his answer; and such objection will not be availing, even though the defendant reserves his right to object to relief.in this court, by his answer, unless he specifies the ground of objection, in his answer.</p> <p>When the holder of a note with sureties, has given time to the principal or maker, for payment, without the assent of the sureties, such indulgence discharges the sureties. And the maker of the note is a competent witness in a suit in favor of the sureties against the holder» to prove such indulgence.</p>

<p>An intention to commit usury will not avoid a contract, unless the loan actually made is accompanied by a corrupt agreement to take more than the legal rate of interest, particularly if the interest actually reserved does not exceed the legal rate of interest.</p> <p>An usurious contract may be abandoned by the mutual consent of both parties, when the security is destroyed or cancelled, so that it can never be made the foundation of an action ; and in such case a new promise by the borrower to pay the amount borrowed with lawful interest, will be binding; but to make such new promise valid and binding, the abandonment of the usurious contract must be made with the full knowledge of both parties as to the precise situation of the usurious contract, and of the facts which are alleged to constitute its abandonment. • .</p>

<p>The facts in this case sufficiently appear from the opinion of the court.</p>

<p>The facts in this case sufficiently appear in the the opinion of the court.</p>

<p>A judgment creditor must exhaust his remedy at law before be can file a creditor’s bill in Chancery for the collection of his judgment.</p> <p>An execution at law upon a judgment docketed January 12', directing a levy upon the real estate, of which the defendants were seized on the 13th of January, in the same year, is not an execution which exhausts the plaintiff’s remedy at law, and a creditor’s bill will not be sustained upon the return of such an execution unsatisfied.</p> <p>When the statute- points out a remedy and a mode of proceeding to attain it, an objection may be taken in any stage of the cause, that the statutory provisions have not been complied with.</p>

Petition for a re-sale of property sold by a Master under a decree of foreclosure of sale. . . _ I he petitioner states that he is a subsequent mcumbrancer by mortgage upon the mortgaged premises and the Eagle Tavern in Rochester, adjoining, and offers to bid $6000 for the premises, upon resale. The premises .were sold for about $700. The petitioner was ignorant of the rule that sales in cities where a daily paper is published, could be made upon three weeks’ notice.

<p>An assignee of a judgment at law, cannot file a creditor’s bill, to collect the same, in Chancery, without issuing an execution upon such-judgment after such assignment.</p> <p>The decision of the Chancellor, made public subsequently, however, overrules such doctrine. (See note a.)</p>

This was a motion for a rehearing under the following state of facts. The defendant David M. Day had executed a mortgage to the complainant, payable at a future time with annual interest; when the first installment of interest became due, the complainant sued Day at law upon the bond, recovered a judgment for the penalty, and issued an execution, for the collection of the interest due, with an endorsment thereon, not to sell the mortgaged premises.

This is a petition by the committee of the habitual drunkard, praying that a judgment recovered in. the Supreme Court of this State, by the Massillon Bank, against the habitual drunkard jointly with William C. Rice and William Moore, for $3,964, and docketed in May term, 1839, may be vacated as to the said Rufus Meech, or his real estate released, or that it be declared void as against him and his property.

This is a bill for the foreclosure of a mortgag-e, dated July 8, 1836, executed by the defendant Crandall to the complainant, to secure $941 40 in installments, a part of which was payable after the termination of the life of Hannah Potter, widow of Daniel Potter, deceased. Hannah Potter, the widow, and the other heirs (except the complainant) of Daniel Potter, deceased, are made defendants together with incumbrancers.

The pleadings and proofs in this cause shew substantially the following case: On the 8th day of June, 1836, the defendant Rawson entered into a written agreement with the complainant, in which, after reciting that Rawson was then erecting a brick building on Main and Cottage streets, in Lockport, Rawson covenanted on his part to construct said building, generally, according to a contract for that purpose made between him and one Haiwood, and that it should be partitioned off…

This bill is filed by the widow and devisee of Gerritt Stephens, against the heirs of said Gerritt Stephens.

The complainant and his brother, Ansel Crippen, were joint owners of a farm in Penfield, in the spring of 1836, they contracted to sell the same to the defendant for $2,400, who at the time paid $600 and was to pay the balance in October,, thereafter, and take a deed.

The complainant, when an infant of the age of eighteen years, made a contract with the defendant Baker, for the purchase of his interest in a lot of land situate in Buffalo. Baker’s interest in the land was an interest under a contract for the purchase thereof. The complainant was to pay for Baker’s interest as follows : 1. By procuring a receipt from his father, Aaron Parker, for an amount owing by the defendant Baker to the father. 2.

This was a bill filed to foreclose a mortgage executed by Hiram Bamum to the complainant. The bill in this cause is made from a printed form.

<p>The facts in this case will sufficiently appear from the Vice Chancellor’s opinion.</p>

This is a motion to dissolve an injunction upon the matter stated in the bill. The bill is what is commonly called a creditor’s bill. It sets forth the rendition of a judgment in the Supreme Court, in October, 1833—the issuing of an execution the same term, returnable in January term, 1834—and a return unsatisfied.

This was a creditor’s bill. It appeared that executions had been issued to the counties of Monroe and Ontario, where the defendants Moore and Hathaway respectively resided, which were returned unsatisfied. Afterwards, an execution was issued to the county of Wayne. The bill was filed to reach the equitable assets and choses in action of the defendants, and also to remove obstructions to the sale under the execution issued to Wayne county and Ontario.

The bill is filed in this case, for a divorce a mensa et thoro, either perpetual or limited, on the ground of cruel treatment and abandonment by the husband. Several strong instances of cruel treatment are stated in the bill.

The petitioner in this case sets forth that he is the father of an illegitimate female infant child, by Bridget Welsh, bom in April, 1833, which child has been principally in the custody of its mother, but for the most part supported by the father—that the child is of an age to require education, and care and attention to its morals and habits—that the mother is an improper person to have the care of the education of the child, and is of dissolute habits, and refuses to…

On the 9th day of april, 1836, the defendant, Farnham, purchased of Thomas Blossom certain premises situate in Buffalo, for the sum of $6,500, for which he agreed to pay, and executed the following papers, in consideration of the purchase of said premises, viz: 1. An indemnity against a mortgage then existing upon said premises to Harman J. Huydekooper, for $2,500. 2.

This was a bill filed to foreclose a mortgage executed by William Vandervoort to Nancy Jacobs. The bill alleges the marriage of Nancy Jacobs to the complainant Michael Jacobs. Vandervoort answers, saying that “ the said bond and mortgage was given to the said complainants for the purchase money of the mortgaged premises,” and that there was a part failure of title. A replication was filed to the answer.

Augustus Eaton was indebted to the complainant in the sum of $1,200, payable in three payments. To secure the same, he procured George P. Stevenson and wife to convey to. the complainant by deed, certain premises.

• This bill was filed to foreclose a mortgage against David E. Evans and the administrator, widow, and heirs of William B. Rochester deceased. The bond was executed jointly and severally, by David E. Evans and William B. Rochester. The latter died before the commencement of the suit, and his administrator, widow, and heirs are rriade parties defendants.

The bill in this cause was filed to stay the defendant Hanford Lockwood from collecting a judgment recovered against the complainant and others, in Jan. 1837, on the ground that the notes upon which the judgment was recovered, were usurious; and that the complainant was unable by accident to prove the usury on the trial.

The complainant was the owner of a farm of more than eight hundred acres, lying in the town of Pom-fret, in the county of Chautauque, and near the village of Dunkirk. In 1835, the defendant Walter Smith, as agent of the New-York and Erie RailRoad, applied to the complainant to obtain from him a cession of his land, or so much thereof as would be necessary for the track of the rail-road which it was contemplated would pass through it.

This was a bill addressed in the ordinary mode to the Chancellor of the state of New York, with a prayer for a subpoena returnable before the Vice Chancellor of the Eighth Circuit, and was filed in the Eight Circuit while the late Vice Chancellor of that Circuit was in office. The order to close proofs in this cause was entered by the complainants, a short time before the 10th day of September last.

A mortgage against the complainant in favor of Isaac R. Elwood was foreclosed in this court, a decree of sale obtained, and the premises advertised by a master. Before the day of sale the complainant paid $350, and stipulated for a postponement as to the balance, for ninety days.

<p>The bill in this case charges that the defendants, John Cronkhite and Barney M. Springsteen, being in copartnership as traders, became indebted in the year 1836, to the complainants for goods .purchased of them; and on the 4th of Feb. 1837, executed a bond and warrant of attorney to the complainants for the amount of said .debt, upon which a judgment was entered Feb. 9, 1837. The firm of Cronkhite & Springsteen had two stores, one at Pekin and one at Lockport. Some time in 1836, it is alleged that they sold out the store in Pekin, and took real estate and notes in payment, which notes were transferred to the defendant Spalding, as security for Cronkhite’s individual debt. Afterwards, and bn 13th Nov. 1836, Springsteen sold and conveyed all his interest in the partnership property and effects to Cronkhite, who was to indemnify Springsteen against the co-partnership debts. On the 1st Dec. 1836, Cronkhite made an assignment of all his property, including the above co-partnership property, to Stevens and others, as trustees for the payment of his debts. The trust was for the payment of the individual debts of Cronkhite and the partnership debts of Cronkhite and Springsteen; but the partnership debts were not preferred or to be paid first, but some of the individual debts of Cronkhite were to be among the first paid, and in preference to" some of the partnership debts. There were judgments and executions against Cronkhite, and Cronkhite & Springsteen, upon some of which the property was sold; and it is alleged to have been sold on executions for Cronkhite’s individual debt, and a part of the proceeds were now in the hands of the sheriff. These executions were in the hands of the sheriff before, but the salé made after the assignment from Springsteen to Cronkhite, and that such assignment was subject to the levy of such executions, and at that time the co-partnership was insolvent. The complainants, for themselves and on behalf of such of the partnership creditors as shall choose to come in, file their bill to have the proceeds of the co-partnership property applied to the payment of the debt of the complainant and of the other co-partnership creditors. The complainants have not issued any execution upon their judgment at law.</p>

In the years 1835 and 1836, the complainant had endorsed several checks for Benjamin Bathbun, payable on time. Some of these checks were discounted by the defendant, H. H. Sizer. Rathbun failed Aug. 1, 1836. After his failure, Sizer had in his possession four checks of Rathbun’s purporting to be endorsed by the complainant, and called upon the complainant for payment. Two of these checks were for $1,000 each, one for $500, and one for $3,000.

The complainants and others, residing within this state, furnished to the Milwaukie Marine Company certain materials for furnishing and finishing the schooner built by them, called the “ Solomon Ju- . , , , . „ , neau, and took their notes tor the same. 1 he Milwaukie Marine C ompany sold said schooner to J ames W. Jeffers, one of the defendants, while it was a wreck; and, in addition to the payment made by him, they took from him a bond of indemnity against the…

On the 10th Nov. 1831, Samuel Bower made his will by which, after providing for the payment of the expenses of his last sickness and funeral expenses, he devises and bequeathes as follows : 1. To his wife, the use of one-third of all his estate, both real and personal, during her life. 2. To his son John, a legacy of $150- out of his personal property; and to his son Samuel, the like leg’acy out of the same property. 3.

These are creditors’ bills against the defendant, Abraham M. Schermerhorn, as judgment debtor, and against the defendant Bishop, as assignee of the judgment debtor. Injunction had been allowed against the judgment debtor and his assignees. The defendants had appeared but had yet put in no answer, the time for answering not having yet expired. Motions are made in both cases for a receiver upon notice to the defendants’ solicitor.

In March, 1840, a decree was made in this cause# for the sale of the mortgaged premises described in the bill. Held: and had made improvements on the supposition that he was the real owner of tlie mortgaged premises.

<p>Where the complainants give an order to the defendants upon their solicitor, to discharge a suit upon payment of costs, which order is revoked by the complainants to the defendants, but, notwithstanding, the defendants go to the complainants’ solicitor and comply with the terms, and the solicitor marks the suit as settled, but no order for discontinuance is entered, the solicitor, upon being informed of the facts, may proceed with the suit.</p> <p>The revocation of the order given by the complainants, before its terms are complied with, is a revival of the suit; and the defendants were not justified in making use of the order without informing the solicitor of its revocation.</p>

<p>An affidavit purporting to be sworn to, before an officer, not known to the law as an officer authorised to take affidavits, cannot be read in this court.</p> <p>The Revised Statutes in relation to the appointment of commissioners of deeds for cities, are not applicable to commissioners of deeds for the city of Buffalo, which was incorporated after the passage of the Revised Statutes.</p> <p>The charter of the city of Buffalo not providing for the appointment of commissioner of deeds for such city, any appointment of commissioners for such city is irregular, and an affidavit sworn to before such commissioner cannot be read in any court of justice.</p>

The bill in this case sets forth the execution of three notes for $233 33 each, by B. E. Robinson to the defendant, signed by the complainant as surety. The notes were all dated June 27, 1836, and payable three months after date.

<p>An attachment against a foreign corporation authorises a sheriff to attach the choses in action of such foreign incorporation, but not to sell the same under an execution issued upon a judgment rendered upon such attachment.</p> <p>Before the act of May 14, 1840, if an execution issued upon a judgment upon such attachment, was returned unsatisfied, a creditor’s bill was the proper remedy to reach the choses in action so attached by the sheriff.</p> <p>But since the act of May 14, 1840, the sheriff having the power to dispose of such choses in action, an injunction will not be allowed upon a creditor’s bill against such corporation, filed since the act was operative, unless it first appears that the choses in action attached by the sheriff; are disposed of.</p>

Motion to dissolve injunction issued in this cause, made by defendants, and motion for receiver made by complainant, both of which come on at same time.

<p>Verbal stipulations made by counsel in open court, upon the argument of a cause, will be enforced by the court, and though such stipulations refer to process in another court, which has, however, been brought within the jurisdiction of this court, they will be enforced, and the parties held bound by them, and an order will be made to restrain the parties from violating such stipulations, even by the issuing of process in another court.</p>

In the year 1836, the complainant in this cause filed his bill to foreclose a mortgage in' this cause, executed by Richard McCahill. James Bennett, who had a prior mortgage upon the premises, was made a party defendant.

In the fall of 1834, the defendant Merrill asked the complainant if he could let him have, by way of loan, $100. The complainant said he thought he might be able to do so, and could let him have it until the next spring or probably until the next fall, but should have to charge him at the rate of 14 per cent, per annum for it. Merrill concluded to take the money.

In May, 1836, Amasa C. Winslow executed to the complainant a mortgage on 30 acres of land for the purchase money. In July, 1836, Amasa C. Wins-low conveyed to Joseph H. Sherrill the undivided half of the said 30 acres, subject to one half of the said mortgage. In October, 1836, two judgments were recovered in the Supreme Court against Amasa C. Winslow which were afterwards duly assigned to Daniel Pomeroy. These judgments amounted, on the 22d June, 1839, to $310 40.

This is a creditor’s bill. The bill states that the complainants “ of the town of Batavia, in the county of Genesee, and state of New-York, on or about the 8th day of November, 1889, recovered a judgment in the Supreme Court of this state, against Timothy Fitch of the said town of Batavia, for about the sum of $241 27.” It farther states, that on the 13th day of November, 1839, the complainants issued an execution to the sheriff of the county of Genesee, to collect said…

<p>Where A had purchased mortgages of B at an usurious rate, with the guarantee of B for die full payment of the amount of the mortgages, and suits at law had been commenced against B upon his guarantee, and B files his bill to set aside the assignment and avoid the guarantee,—Held, that B had an adequate defence at law upon the question of usury, and a demurrer to the bill for this cause, was therefore allowed.</p>

<p>When A makes an usurious loan to B, and for security takes a mortgage directly to himself; and before ally suit is commenced at law upon any of the securities, B files a bill to set aside the usurious transaction, this court has acquired jurisdiction, and a demurrer to such bill will be overruled.</p>

<p>The facts in this case will sufficiently appear from the opinion of the court.</p>

■ ' Samuel Wilkinson being the assignee and owner of a leasehold estate in the city of Buffalo, on the 20th November, 1834, entered into an agreement Benjamin Rathbun, by which Rathbun was to erect certain buildings for Wilkinson, and for the erection thereof was to be paid the sum of $9,000, by an assignment of the leasehold property. By a power revocable at the pleasure of Wilkinson, Rathbun was permitted to' go into possession of the leasehold property.

Jared D. Howe, one of the defendants executed a mortgage to Calvin Cheeseman for $1,400, dated Nov. 1st, 1836, which,, on the same day was assigned by Cheeseman to John Tice for $1,000.

In the year 1838, Sedgwick B.enham commenced a suit by attachment against the Lumberman’s Bank of Pennsylvania, a foreign corporation, for an amount due upon their circulating notes which were not paid. Upon this attachment, the sheriff levied upon certain choses in action, notes, &c. but it does not appear distinctly what these choses in action were. The suit was defended and a trial had.

<p>A tenant took a lease of a farm for five years, at an annual rent, with a clause that he might sow not more than fifty acres of wheat during the last year, and remove the crop after the lease should expire. The tenant was evicted under an elder incumbrance, before the expiration of his lease, and the landlord brought an action at law for the rent. The tenant filed his bill to restrain the proceedings at law, and have his damages ascertained and set off against the claim for rent.—Held, that if the tenant had any remedy under the covenants of his lease, his remedy was adequate at law; and if he had no remedy upon the covenants, he had no remedy in equity; and the injunction was dissolved.</p>

<p>A bill filed to foreclose a mortgage, claimed that there was more than $100 due. The answer denied that there was $100 due. Before the hearing, other installments became due, which were not paid. The master, on reference, reported that there was less than $100 due at the time of filing the bill; but that there was more than $100 due at the date of the report, by the falling due of subsequent installments.—Held, that the complainant was entitled to a decree of sale with costs.</p> <p>When ¿bill is filed to foreclose a mortgage payable in installments, and the defendant sets up in his answer that there was not $100 due at the time of filing the bill, he should pay the subsequent installments as they became due, to enable him to succeed in his defence.</p> <p>As, however, the answer was true at the time it was put in, the defendant was given the costs of his answer up to the date of the master’s report. The complainant was given the ordinary costs of a foreclosure ; and litigated costs subsequent to the master’s report, were given to neither party, as it was a new question.</p>

<p>It is a general rule that an injunction will not he dissolved upon answer, until the answers of all the defendants are put in. But if the defendants’ answering, state upon oath, positively and fully, that the defendant who does not answer, was not iñ a situation to know, and in point of fact did not know, any thing in relation to the matters charged, the injunction will be dissolved upon the answer of a part of the defendants having the whole knowledge of the transactions, if it denies fully the equity of the bill.</p>

These two causes are creditor’s bills. A recefwas aPP°inted in each of them. The appointments were perfected by giving bond, &c. A part th® property of the defendant consisted of land's rented by the defendant on shares, i. e. he was to . „ 7 , receive a proportion oí the crops.

<p>An injunction was allowed upon a creditor’s bill as against the judgment debtor and his assignee for the benefit of creditors. Upon a motion to disolve the injunction, as to the assignee, it appeared that the first preference provided for in the assignment, was for a contingent liability of a doubtful character, and as to which it would take a long time to ascertain the amount; and inasmuch as a receiver had been appointed, who had given bonds, the motion to dissolve the injunction was denied.</p> <p>An injunction is not dissolved of course even upon a full denial of the equity of the bill, if the court can see in the facts disclosed, good reasons for retaining it.</p>

<p>An injunction will not be issued to stay proceedings under a bill or decree of this court, whether the application is made by parties, privies, or a stranger to the original suit.</p> <p>The proper mode is to apply by petition in the original suit, for such an order as the case of the applicant will entitle him to.</p>

This .bill was filed to set aside a contract for the purchase of lands. The complainant purchased the defendant’s farm; and after paying him a certain sum of money, executed to him a bond and mortgage for the balance of the purchase money.

The bill in this cause states that Joseph D. Hoyt died Nov. 25th, 1838, seized'of certain real estate upon which there were existing leases upon which rent was reserved to the decedent. He died intestate, leaving the two female complainants in this cause and an infant son, his only heirs at law.

<p>A creditor’s bill must aver that the judgment debtors, or some of them, resided in the county to which the execution at law was issued, at the time of issuing such execution, otherwise the bill will be dismissed.</p> <p>If the defendants in a creditor’s bill, insist, in their answer, that the complainants have" not made in their bill the necessary averments as to the residence of the defendants at the time of issuing the execution at law, and the complainants, notwithstanding, go on and file their replication and take their proofs, and come to a hearing, they will not then be permitted to amend. By filing their replication and taking proofs, they have precluded themselves from making an amendment.</p>

<p>The heirs of a mortgagee are not competent witnesses to prove the bona Jides of the mortgage or its continuing force as a lien, in consequence of their interest.</p> <p>When a mortgagee who had taken a mortgage from his son, encouraged a purchaser to purchase the mortgaged premises, and said his son would arrange about the mortgage and left the mortgage with his son; and the son sold to the purchaser, and delivered to him the mortgage as satisfied, but it was afterwards handed to the son to enable him to procure a legal discharge from the father, and the mortgage was destroyed by fire before such discharge was procured,—Held, that the mortgage could not be enforced by the administratrix of the father after his death, as against the purchaser.</p>

A mortgage was executed by Shelton and Smith, Oct. 13, 1835, to Mahlon Kingman, to secure the payment of $5,220, in ten equal annual installments. The mortgage was for the purchase money of the mortgaged premises, and a bond for the payment of such money accompanied the mortgage. The mortgage was duly recorded Dec. 1835.

<p>The payee of a note given without consideration to one who has passed it with a guarantee of payment, is an incompetent witness fosr the maker to prove the note usurious in its inception.</p>

In April, 1836, the complainant John Post borrowed of the defendant Silas Boardman the sum of $200, at an usurious rate of interest, for which he executed a note with Fellows as his surety, to J, & S. Boardman, the two defendants, who were in partnership as brokers. The bill alleges that the loan was continued after the note became due, without the consent of Fellows, the surety, and upon the judgment of a continued usurious interest.

On filing bill in this cause an order was granted for the defendant to show cause why an injunction should not issue pursuant to the prayer of the bill. The bill and affidavits, on either side, present substantially the following case : The common council of the city of Rochester are ex officio commissioners of highways; they are charged with the duty of keeping the Genesee river clear of drift wood and other obstructions.

This was a bill filed for a qualified divorce. On the 3d day of November, 1835 the complainant obtained an order that the defendant pay the complainant $50 towards carrying on this suit. On the 23d November, 1836, the complainant on an ex parte application, obtained another order for the payment of $150 for the like purposes. The defendant paid $100 of this mony bn the same day and gave his note for the remaining $50.

<p>An injunction upon a creditor’s bill claiming more than $100, and charging equitable assets to the amount of more than $100, will not be dissolved because the defendant in his answer swears that he_has not equitable assets to the amount of $100.</p> <p>An injunction directed to several persons not defendants in the suit, and it appearing upon the face of the injunction that they are not defendants, is not obligatory upon such persons, except as a notice.</p> <p>Such injunction, so directed, is not authorised by the fiat of allowance ; and as to such persons, when it appears upon the face of the process that they are not defendants, is, as to them, inoperative and useless.</p>

<p>A vendee of lands who paid $2f0 towards the purchase money, and afterwards obtained a decree for a specific performance of the contract and a conveyance of the land, of which he neglected to avail himself, and the vendor subsequently obtained an order against the vendee for an account of the rents and profits while he was in possession, cannot set off the payment of $200 against the rents and profits received by him; but the vendor can retain the payment and also have a full account of the rents.</p>

<p>A person who becomes subscriber to an associated bank under the general banking law, and pays for his stock by his bond and mortgage, stands in two capacities towards the bank, one as debtor upon his bond and mortgage, and the other as shareholder, by reason of his stock.</p> <p>Where the articles of a banking association provided that dividends should be made of so much of the interest and profits as should be deemed expedient by the directors, at stated times; the directors are not, under such article, compelled to make any dividend if they reasonably deem it inexpedient.</p> <p>A shareholder who has given a bond and mortgage for Iris shares or stock, with interest payable semi-annually, cannot properly refuse to pay his interest because the directors do not declare a dividend of the interest and profits, neither will the collection of such interest be restrained until the directors make a dividend.</p> <p>Whether a banking associotion, under the general banking law, can lawfully incur a debt for the purchase of state stocks,—quere, but at any rate, the president of such association, who signed the contract for the payment of such debts, cannot, in ¿ eollaterial suit with the association, qestion the validity of such debt.</p>

<p>A complainant in a creditor’s bill, after obtaining an injunction against the judgment debtor, restraining him from collecting his choses in action, cannot afterwards by virtue of a new execution at law levy apon money paid to the agent of the defendant, upon one of the choses in action of the defendant.</p> <p>And if such money is-so levied upon and taken, it will be ordered to be brought into court to abide the event of the suit, particularly when the defendant, by his answer, fully denies the indebtedness.</p>

<p>A motion will not be granted upon the same papers or a part of the same papers upon which a similar motion has been refused, even though there was an intimation in the opinion of the court upon the former motion, that it might afterwards be granted. New facts or circumstances must be shown to sustain a new motion.</p>

<p>A bill filed to set aside a contract on account of usury must distinctly state the usury and corrupt agreement, and the terms of the usurious contract, and the amount of usurious interest, or proofs of usury will not be admitted.</p> <p>A bill stating that a mortgage was executed for $2,700, and that but $1,700 was advanced by the mortgagee thereon, if it does not state also that there was a corrupt agreement, either upon the execution of the papers or the advance of the money, does not state a sufficient case to admit proof of usury, even though the bill afterwards denominates the transaction as a corrupt and usurious agreement.</p> <p>An averment of facts in a bill upon information and belief, if the bill afterwards avers that such information is derived from the defendant, or the testator of the defendant’s, is a sufficient averment of knowledge to sustain an injunction.</p> <p>Though a bill cannot be sustained as a bill to set aside a mortgage on the ground of ».3ury, yet where it is alleged that the money advanced was much less than the amount of the mortgage, and proceedings were had under the power of sale, claiming the whole amount of money specified in the mortgage, the bill may be retained to a adjust the amount actually due upon the mortgage.</p>

<p>An order regularly obtained for the appointment of a receiver, and the appointment perfected, and the receiver acting as such under his appointment for several months, will not be vacated, either because the solicitor for the complainant acted as counsel for the receiver upon some questions, nor because the bail bond, taken by the master, is alleged to be inadequate in the amount of its penalty.</p> <p>A party to a suit, or a party interested in a suit, should not usually bé appointed a receiver in the cause, unless the exigencies of a particular case make it proper; but when a party interested in a suit, a stockholder in a corporation plaintiffhas been appointed receiver, without knowledge of the fact that he was such stockholder, and has acted as such for some months, such receiver will not be removed immediately, but it will be referred again to the master with liberty to propose the same receiver, and the receiver will, in the mean time, have the custody and charge of the property.</p>

This is a common creditor’s bill, so far as the defendants John G. Crandall, Asa Rowe, and John Lake, are concerned.

<p>It is a general rule that the answer of all the defendants must be perfected before an injunction will be dissolved, provided all the defenfendants are implicated in the same charge.</p> <p>Where a president of abank is made a party defendant, as an individual, and the bank is also made a party, and the president and the bank are both implicated by the bill in the same charge, and the bank answers by its cashier, and the president does not answer, the injunction will not be dissolved upon the answer of the bank alone; saor until the answer of the president comes in, even though the injunction is issued against the bank alone, and denial of knowledge on its part would be sufficient to procure its dissolution.</p>

Henry K. Smith, one of the defendants in this suit, and a counsellor in this court, presented his petition for leave to amend the answer put in by him in this cause.

<p>4. creditor’s bill in favor of a foreign corporation, verified by the clerk of the complainants’ solicitors and attorneys, which clerk had" personal knowledge of the facts stated in the bill, is a sufficient verification to retain the injnnction.</p> <p>Upon a motion for a receiver under a creditor’s bill, notice being ser-, ved with the bill, and the judgment and execution being recent, when it does not appear distinctly from the bill that the judgment and execution at law were regular, and there is reason to suspect that there was irregularity in either the judgment or execution, the motion will be denied with liberty to renew the same, after the defendant shall have had an opportunity to move the Supreme Court to set aside the process or judgment for irregularity.</p>

In 1833, Joseph W. Brown and Jonathan L. King, owned adjoining lots¿in .the city of Buffalo.

E. G. Spaulding, for the complainant, moves for the decree in the cause, it being a foreclosure suit upon a master’s report, stating the following facts. The bond and mortgage was dated Feb. 8, 1838, conditioned to pay $2,036, in two equal installments, one half in four years, and the other half in six years from the date thereof, with interest annually, at 7 per cent.

This is a bill to foreclose a mortgage executed by three of the defendants upon certain lands in Buffalo, several persons are made parties defendants without setting out their rights or claims specifically, but by the general allegation authorised and required by the 132d rule of this court, that such defendants have, or claim to have some rights and interests in the mortgaged premises, or some part thereof, as subsequent purchasers, incumbrancers, or otherwise.

This is a bill for the specific performance of a contract for the sale of lands, filed by the vendors against the purchaser. The complainants were partners in mercantile business, and tenants in common of the store and the appurtenances in which they transacted their business.

The first of these suits is brought for the purpose of foreclosing a mortgage upon certain lands in Williamsville, in the county of Erie; and the second is i mi . i - i a cross bill, or a bill in the nature of a cross bill, to set aside the conveyance of the same lands upon which the mortgage was given, as fraudulent.

This was a mortgage cause. The affidavit of the complainant showed that some of the defendants-were absentees.

* The complainant, by his petition, shows that he had become the owner of several judgments against Baldwin, Williams and Palmer, three of the defendants in this cause.' Some time since he filed a creditor’s bill in this court, founded upon the return of execution unsatisfied, upon two or more of those judgments, to which bill the defendant Baldwin put in an answer.

This was a creditor’s bill. The defendant answered, substantially denying the material allegations in the bill. To this there was no replication. After the answer was put in, a new execution was issued upon the judgment at law, and levied upon SI 12 in the hands of the agent of the defendant, who had received the same for rent due to the defendant.

This bill is filed specifically to foreclose a mortgage executed by the defendant to Hiram Pratt, and by Pratt assigned to the complainants. But the answer and proofs embrace other matters and show substantially the following facts: Benjamin Rathbun of Buffalo, previous to his failure, had put in circulation a large amount of commercial paper with forged endorsements.

This is a bill to foreclose a mortgage executed by James H. Hinds to Philip Wilbur, assigned by Wilbur to George Stow, and by George Stow to the complainant with a guaranty, on the part of Stow, of the collection of the mortgage. The complainant asks in his bill to charge Stow personally upon his guaranty for any deficiency which may remain after the sale of the mortgaged premises, and • execution against the obligor.

It appears from the facts presented by the affidavits in this cause, that a demurrer was argued at the last November term, and overruled. Under the 49 th rule the defendant wouldf have twenty days to answer, upon payment of costs of the hearing upon the demurrer. The time to answer was extended by stipulation until the 19th December, 1840, and the amount of costs were adjudged by the solicitors.

The bill in this cause was filed to obtain a decree of nullity of marriage, in consequence of. the impotency and physical incapacity of the defendant, which is alleged in the bill to be incurable. The present petition is on behalf of the female complainant for alimony and expenses.

The defendant Elias Weed, was made the assignee of the complainant, Theodore Chapin, by an assignment of all Chapin’s property in trust for the • payment of his debts. Among other property so, assigned, was a farm upon which there was a previous incumbrance by mortgage, and five acres of land adjoining to said farm and necessary to it, which Chapin occupied, upon some alleged parol agreement to purchase, and” had made erections thereon.

This is a bill to foreclose a mortgage executed by Fargo to the complainant, December 29, 1836, for $6,520, without any accompanying obligation.

Petition for opening sale of mortgaged premises, made by a master. The complainant in this suit, became the assignee of a mortgage upon one hundred and sixty acres of land—the mortgage amounting to less than $1,000. The defendant Church was the owner of the land, and contracted to sell sixty acres oí it to Dolph, another defendant, who had paid Church the purchase money, and was entitled to a deed.

This bill is filed by the complainant to set aside and cancel a mortgage executed by David S. Cole, to Daniel M. Chittenden, in 1834. The bill alleges the mortgage to have been given-upon an usurious and corrupt consideration. The complainant is a grantee, or purchaser of the mortgaged premises. The mortgagee, Chittenden, is dead, and the defendants are his personal representatives, and as such, have proceeded to foreclose the mortgage by advertisement under the statute.

This was a bill filed to compel the conveyance of one acre of land, in the town of Riga, county of Monroe, used for the manufacture of potash. The right of the complainant to a conveyance was substantially denied by the defendant Ide, his answer upon oath, however, being waived. The value of the land was not alleged in the bill, and it was not set up in the answer that the land was worth less than $100.

The defendant who was owner of a farm in Gene-see county,, demised and leased the same to the complainant, for five years from the first day of April, 1837, at an annual rent of $550, payable on the first day of January, in each year, during the continuance of the term, and with the farther privilege of sowing on the farm an out going crop of wheat, not exceeding fifty acres, and of removing and harvesting such crop, notwithstanding the five years had expired.

The bill sets forth that in Sépt. 1836, one Seth Starr borrowed of the defendant Adams $280, for which he agreed to pay three per cent per month; and to'secure the sum executed a note to Adams, for $305,20. with John Beggs and Randolph Griswold as sureties, payable in three months, for which he received $280.

The facts in this case will substantially appear from the statement of facts upon the previous hearing of a demurrer in this cause.

A suit had been commenced for the foreclosure of a mortgage in the ordinary form. The defendant had given notice of appearance, but had put in no answer. Before the time for answering had expired, the defendant came in to pay the amount due, with costs of the foreclosure. Inasmuch as the complainant’s bill had not been taken as confessed when the ( defendant made payment, the complainant’s solicitor insisted that he could rightfully charge costs as under the old fee bill.

<p>A bill filed by the vendor of lands—by a contract to convey, upon payment of the purchase money, against the vendee—for the specific performance of the contract by the vendee, is not a bill to foreclose a mortgage, within the meaning of the act in relation to costs of the foreclosure of mortgages in Chancery, passed May 14, 1840; and the complainant is entitled to his costs upon such bill, under the old fee bill, and is not restricted to the charges allowed by the act of 1840.</p>

A mortgage was foreclosed in this court, and the usual decree upon a mortgage payable by installments, where all the installments were not due, was made and entered. Upon this decree, a petition was filed for the sale of the mortgaged premises, for the non-payment of an installment becoming’ due subsequent to the entry of the decree, and the usual order made.

The petitioner, Lucy Finch, was one of the children and heirs of Simeon Bristol, who died, and whose real estate was sold by the order of this court, for (he benefit of his infant heirs, and the share of Lucy Finch was brought into court. While still an infant, Lucy Finch married the other petitioner, Henry W. Finch, and they made application for the payment of her share to the husband, before she had attained to the age of twenty-one years.

The pleadings and proofs in this cause, present, substantially the following case.

The bill in this case states that the complainant sold to the defendant three hundred mulberry trees, of the kind called Morus Multicaulis, for $300, for which the defendant executed two notes to the complainant, one for $25, payable one day after date; and one for $275, payable one year after date.

Bill to foreclose a mortgage. Complainant moves-for a decree, at a special motion term, upon an affidavit, stating that a notice of the pendency of the suit was filed in September last, with the clerk of the proper county, in which notice the first named' defendant was alone described as defendant—that the bill was afterwards amended by making the three other defendants parties defendant; but it does not state that any new notice of the pendency of the suit with the…

Bill to foreclose a mortgage. The facts presented by the pleadings in this case are, that Thomas Peele, one of the defendants, executed to George W. Bush, two mortgages upon the same piece of property, both dated and executed at the same time, September 18, 1835, one to secure the payment of $1,350, and the other to secure the payment of $3,500.

The bill states that in August, 1839, the defendants—assuming to have a joint interest or to be joint owners, and seized in fee of certain premises in the city of Rochester, consisting of certain mill lots and a mill yard—made a survey and plot of the whole, and divided the whole into fifteen subdivision lots; which lots, in pursuance of a previous notice. they offered for sale at auction.

This was a bill filed to foreclose a mortgage, executed by the defendant Morton Reed, to Nelson Reed, assigned by Nelson Reed to John D. Rogers, and by John D. Rogers to the complainant. The answer of the mortgagor and a purchaser of the mortgaged premises, under a subsequent judgment, sets up the defence of usury.

These were three creditors’ bills against the defendant Erastus Rawson, the judgment debtor, the other defendants, his assignees, to set aside the assignment, and obtain satisfaction of the judgments of the several complainants, out of the choses in action, equitable interests and other property of the defendant Rawson. All the bills were duly taken as confessed, and a receiver appointed.