Volume 1 — Hoffman's Chancery Reports

<p>Where husband and wife separate, under circumstances entitling her to file a bill for a separation, and articles of separation are executed, whereby the former relinquishes all rights to her property, and the same becomes vested in a trustee, to be enjoyed by her with a power of appointment by will, and she afterwards dies, the husband cannot, (no creditors intervening,) set the articles aside.</p> <p>Although the Revised Statutes of New-York have prohibited a will by a married woman, of personal as well as real estate, yet where the husband assents to her disposing of the former, the will will be good. This may be by a post-nuptial agreement, as well as an ante-nuptial one: otherwise as to real estate. Where the property is given by another, with the power to will, it is immaterial whether the gift is before or after marriage, or whether there is any assent by the husband.</p> <p>Reconciliation does away with articles of separation; but a casual intercourse between man and wife upon a mere friendly footing for three or four days, and loose expressions relative to an in*. tention to-destroy articles of separation in the hands of a trustee, and the expression of a wish that they had not been made, will not be proof of a permanent reconciliation and agreement to live together, so as to set aside the articles.</p> <p>The surrogate’s court has sole jurisdiction to try the validity of a will of personal estate.</p> <p>Although it is a rule of this court that, where there is a full remedy elsewhere, the objection should be taken in a pleading, and not merely at the hearing, yet this does not hold where another court has exclusive jurisdiction by statute or otherwise. In such a case, the court may raise the objection. Nor would the consent of counsel, that the court should take cognizance, confer jurisdiction.</p> <p>The Revised Statutes, in requiring a testator, at the time of making his subscription, or his acknowledgment of the same, to “ declare “ the instrument so subscribed to be his last will,” intend an act distinct from subscription, acknowledgment of subscription, and from attestation: something synonymous with publication. Therefore, where a proposed will was read to a party who, by her answer, recognized it as containing her wishes, and then made her mark, but did not speak more, it was considered that the instrument was not perfected as a will.</p> <p>A will executed by a wife under a power, need not refer to it.</p>

<p>Although a tenant in common out of possession tiles a bill for partition, and states another to be in possession of the whole estate, yet the bill will hold ; for the possession of one is the possession of all.</p> <p>Partition can be had of a mere equitable estate.</p> <p>A trustee with power of sale, and having a vested right in a part, cannot by a conveyance from, and then a reconveyance to himself, executed after a bill filed for partition, affect the proceedings.</p> <p>There must be an order to allow a defendant to testify; and an objection taken at the commencement of the examination and noted by the examiner is sufficient, without a formal notice to suppress.</p> <p>The deposition of a disinterested person, who afterwards becomes interested, can be read.</p> <p>A tenant in common who had, by defending a suit, kept the property in the family, allowed for counsel fees paid.</p> <p>Tenant in common in possession, allowed for substantial and useful improvements; but not for such as are merely ornamental. Mode in which the tenant is to get such allowances.</p> <p>Tenant in common in possession, charged with an occupation rent.</p> <p>Form of a decree in partition of inquiry into expenditures, &c., by tenant in possession.</p>

<p>The doctrine that a deed absolute on its face may be converted into a mortgage by parol testimony, is unquestioned, where the acts or declarations are cotemporaneous with the instrument. Subsequent statements should be more scrupulously admitted.</p>

Bill for specific performance. The complainant paid twenty dollars to the defendant; and took from him the following receipt: “ Received, New-York, March 14th, 1835, from Mr. J. “ Westervelt, twenty dollars, on account of the purchase “of the house and lot number 38, Hammond, at two “ thousand nine hundred dollars, subject to a lease to Ben- “ jamin Finn, for four years, from the 1st of May next. “ One thousand dollars may remain by bond and inort- “ gage; the balance the…

Bill to redeem. A suit had been instituted upon two bonds and mortgages, given by Hannah Brown, the present complainant; one to the defendant Edmund Frost, and Messrs. Carmans’ for five thousand dollars ; and the other to the Carmans, alone, for four thousand dollars. Each was dated the twenty-eighth day of April, one thousand eight hundred and thirty-one.

Bill by wife against her husband for a separation, on the ground of abandonment, and neglect to provide for her. The allegations in the bill were met, and generally denied ; and the testimony, on one side, somewhat conflicted with the evidence on the other. The husband separated from her in the month of January, one thousand eight hundred and thirty-seven; and they continued apart until the bill was filed, in the month of June of the same year.

<p>Although articles of separation are condemned by the policy of the law, and will rarely be enforced between the parties, yet collateral engagements between the husband or third parties contained in them, will be executed. The duty of maintaining children lasts until they arrive at large, unless they come within the provisions of the statute respecting the support of the poor.</p> <p>Where a provision was made in articles, giving the wife the income of property, paying out of them an annuity to the husband, and to apply so much of the residue as might be necessary from time to time, towards the support of the children, no bill will lie to call for a proportionate share of the rents, after deducting the amounts paid for maintenance.</p>

<p>The court will decree the delivery up of a note given as a security on a usurious loan, and retained by a broker as security for usurious interest paid by him and for his commissions in effecting the loan, the principal and legal interest having been paid. The ■ general doctrine of the court, that it will not aid either party in executing an illegal contract, or epfprce any claim which depends upon or results from it, is applicable as well to a contract in violation of a positive statute, as to one immoral in itself. The court actively interposes where the transaction is as it were in transitu, as where money is deposited with a stakeholder upon gambling transactions.</p> <p>•The principle of entire neutrality as to illegal transactions deviated from in some pases, such as in marriage brokage bonds, and cases of usury. Relief has here been given from an early period. Principles settled under the Revised Statutes as to dealing with an usurious contract in this court.</p>

<p>General principles of the court in settling a partnership concern as to extra allowances, interest, and commissions. A leasehold interest is to be disposed of as other property.</p> <p>The good will of a trade does not survive, but is partnership property. Douglass v. Hammond, 5 Vesey, 539, not law. The court cannot compel the continuing partners to take the lease and good will at a valuation. If not disposed of by consent, the lease and good will must be sold like other partnership effects.</p>

<p>An acknowledgment of a deed of lands in this state, taken before “ the president of the court of common pleas for the first circuit “ of Warren county, Ohio,” does not entitle it to be recorded, there being an appeal from that court to the supreme court.</p> <p>Quere, whether a certificate that the within named A. B. acknowledged,&c., is sufficient. It appears, that a conveyance by one out of possession, shall prevail as between the parties by way of estoppel, although a stranger cannot set it up against the ejectment of the grantor. A release by one out of possession to one in possession being valid, and invalid only when made to strangers, held that such a release to a party who had contracted for the purchase of the premises, and paid part of the purchase money, was operative in a court of chancery.</p> <p>A conveyance was made to J. C. and P. C. his wife. Habendum, “ to the said J. C. and P. his wife, as tenants in common, and in “ equality of estate, and not as joint tenants.” Held,—that the common law rule, that husband and wife take by entireties and no alienation of one could prevent the right of the survivors, applied in this case. The authorities stated, and the opinion of Mr. Preston to the contrary, questioned.</p> <p>The general rule of the court, on a bill for performance of a contract of sale,is to allow interest on the purchase money from the perj0¿ gxe¿ for completion, and to give the purchaser the rents and profits. Where the vendor has caused delay without cause, and the interest will exceed the rents, he will be refused the -former, retaining the latter.</p>

<p>A purchaser of the rights of a party to a suit, who subsequently died, has a right to proceed with the old suit by bill of revivor and supplement, or to allow that suit to drop and institute a new one. But in the latter case, he cannot bind the defendant by any offer in his former answer, nor prevent his setting up any other matter or facts not repugnant to his admissions or statements in his first answer.</p> <p>Where the time for performing a contract has been extended by parol, and it is then fulfilled, it cannot be alleged that the agreement to extend being void, the conveyance is alone to be regarded in ascertaining the rights of parties. Even supposing that such a parol agreement is in this court in itself void, yet the contract may be referred to in settling rights as if it had been performed at the day.</p> <p>Where a contract was assigned on the 5th of August to a volunteer, and a bond to confess judgment was given by the assignor on the 8th, and judgment had on the 12th of the same month, held, that to impeach the assignment, the creditor should show a debt existing at its date. A judgment upon a verdict might be different.</p> <p>The law being that prima facie a voluntary assignment is valid as to subsequent creditors, proof must be given of debts or other circumstances to impeach it. Through prior creditors, subsequent ones may be let in.</p>

The bill was to carry into effect an alleged joint contract of purchase made by the complainants, together with one Lewis Kelly, deceased, of a lot of land in the city of New-York. The defendants are the executors of Kelly, authorized to sell by his will, and his devisees under that will.

<p>The award of the commissioners under the treaty with France of 1821, has been held not conclusive, even where both parties appeared before them and litigated their claims.</p> <p>The right to abandon depends on actual facts, existing at the time of the offer, not on the information then possessed. The offer to abandon must be founded on information of facts, sufficient to justify an abandonment. There must be both information of sufficient /acts, and the existence of sufficient facts; although the facts need not be the same.</p> <p>A restoration of a vessel prior to an abandonment, converts a total into a partial loss ; but this rule does not apply, if the voyage be totally broken up, or the salvage exceed one half the value. The same rule applies to a restoration of cargo.</p> <p>A party assured, having a right to abandon for a total loss, made, his claim for such, and offered to abandon, which was contested. He entered with the assurers into an agreement to refer their claims to referees. The agreement did not assert that the loss was total, but spoke only of the claim for a loss om ship, freight and cargo. The referees awarded a certain sum to he paid, and thereupon the policies to be cancelled. That sum was paid. Á computation proved, that the liquidation must have been on the basis of a total loss.</p> <p>Held, that the right to the indemnity under the French treaty, vested in the insurers, and that no assignment or cession was necessary.</p>

The bill in this cause was filed for the purpose of either obtaining payment of the appraised value of a building erected by the complainant on leasehold premises, or to compel a renewal of a lease, calling upon the court to-ascertain what would be a proper and equitable rent. On the 1st of June, 1814, a lease was executed by persons now represented' by the defendants, to one Nathaniel Howland, of a lot of ground'in the village of Brooklyn’.

This cause was heard upon a bill and amended bill. rp^g originai pip made Andrew McGowan alone a party, seeking a specific performance against him of a certain written contract. This was filed on the 3d of February, 1835. Afterwards the bill was amended by making the other defendants parties, as purchasers of the premises, the subject of the contract, and charging them with notice of the complainants’ rights, and upon other grounds seeking to avoid their conveyances.

<p>Where a purchase was made on behalf of the members of a voluntary. religious association, paid for by the members, and the deed taken to one of them, the trustees appointed upon the church being subsequently incorporated have a right to call for a conveyance.</p> <p>The endorsement of the grantee, that he held the property to be conveyed upon the members assenting to an open communion, which was contrary to the tenets of a large proportion of the contributors, cannot be regarded ; no assent having been proven. Although the legal title to lands held for an association may become vested in the trustees absolutely upon an incorporation, yet this court will decree a conveyance if required.</p>

This was a judgment creditor’s bill. Two questions were involved: first, as to the validity of a mortgage on the ground of discrepancy between the sum due and the amount set forth in it; and next, that the possession of goods embraced by such mortgage, was not changed.

<p>Where a judgment debtor, on a levy, gives a note with collaterals, and thereupon goods seized, and which would have been sufficient, are restored, and he promises to pay the note out of a particular fund, but makes default, the judgment is not to be considered as satisfied, even though a receipt has been given expressive of the note, “ being amount of judgment recovered against him, if c.”</p>

<p>, If an assignee once accepts an assignment, he undertakes the duties of the office, and is responsible, although he takes no active part, but leaves the control to his co-assignee.</p> <p>A deed of disclaimer is not essential, though most prudent. The administrator of an assignee, is not bound to superintend the trust property.</p> <p>The liability of a co-assignee for misapplication of funds by his associate, established. ></p>

The original bill was filed on the 21st July, 1835, against the defendant, Richard Griffith, father of the infant plaintiff, seeking to call him to an account, for certain mon^es received by him out of the estate of the infant, given him by will, and misapplied by the defendant.

The bill in this cause was for the specific performance of a written agreement for the exchange of certain real estate. The- defendant refused to perform his contract, on the ground that a good title could not be made to the premises he was to take. All the objections are presented upon the pleadings and proofs.

The original bill was filed to compel the receivers of the Merchants’ Fire Insurance Company to pay the amount of a policy executed by the Company, and held by the complainants, or such a dividend thereupon as other creditors had received. The cross bill sought a .cancelment of the policy.

<p>Distinction between the demurring of the parol, and the giving a day to an infant to show cause.</p> <p>It is the general' rule of the court, that an infant defendant is to have six months after coming of age, to show cause against a decree. And this must be done whenever his inheritance is bound, whether he is decreed to execute a conveyance or not, except in certain cases provided for by statute. The case of Sheffield v. Buckingham doubted. ( West’s Rep. 684.)</p> <p>The right of the parol to demur, is abolished in our state By statute, in all cases of descent or devise. The debt of the ancestor may be levied by execution, with a respite in case "of infancy, for one year. By the acts of 11 Geo. IV. and 1 Wm. IV. this right is also abolished.- The rule of the English court still however continues to give the infant a day. Statutory regulations dispense with it in specific instances, such as in partition-and foreclosure.</p> <p>Quaere, if upon a hill of strict foreclosure in our state, a conveyance By the mortgagor should be decreed.</p>

This cause was submitted on written argument's. The bill in this cause was filed for the purpose of setting aside a mortgage executed by Cornelius Gates to Gerrit Gates, dated the 7th day of April, 1826, and after-wards assigned to the Chesters. The complainant was a judgment creditor of Cornelius by a judgment docketted the 20th of September, 1822.

<p>The relation of trustee once established, pervades every transaction respecting the trust property, until it is dissolved. The cestui que trust may pursue the property through every mutation where it comes hack to the trustee ; or may demand the proceeds when the property is irreclaimable.</p> <p>But where trust property was sold under hostile proceedings, by a judicial sentence, upon an incumbrance made prior to the trust, and the trustee subsequently purchases from a bona fide purchaser, the relation does not exist, and the property may not be followed. It must be established, that the trustee unwarrantably promoted or allowed the proceedings, in order to realize an advantage to himself,</p>

A preliminary question was raised in this cause as to the right to read at the hearing a copy under the seal of the surrogate of the will of the testator Cogswell. Upon that question the following opinion was delivered, and the counsel for the defendant agreed that the will should be considered in evidence.

The bill in this cause was filed by the executors of Archibald Campbell, for the purpose of obtaining the direction of the court as to the distribution of the surplus funds of the estate of the testator in their hands. On the 27th day of August, 1830, Archibald Campbell made his last will and testament, duly executed, and on the 18th of February, 1832, he executed a codicil thereto. It is deemed expedient to state parts of both at length.

<p>A release obtained from a ward just arrived at age, casts upon the guardian proof of every thing to make it valid, especially a full, entire, and minute account.</p> <p>A discharge to a guardian is not to be precipitated; there must be time for consultation, a full exposition of the estate and of its administration; and a guardian who has settled his accounts in secret, must prove all this, unless there has been a positive ratification ; an intelligent, voluntary acquiescence ; or lapse of time sufficient to induce the court to refuse its aid.</p> <p>The principles upon which a gift by a ward is impeached, apply as strongly to a release precipitately obtained by the guardian.</p> <p>Although acquiescence by a ward with a guardian’s accounts can be inferred from lapse of time, omission to complain, and other circumstances—while confirmation is to be established by evidence ; yet they both depend upon a perfect knowledge of rights, facts, and of the ability to procure relief.</p>

<p>Neither the renewal of an old nor substitution of a new security between the same parties can efface usury; nor further security; nor a guaranty given subsequently by a stranger. But if the usurious instrument comes to the hands of an innocent holder, and in consideration of forbearance a new security is given to him, it is valid. And whether the holder took it for an antecedent debt, or paid money for it at the time, is immaterial.</p> <p>No general evidence of a multitude of usurious transactions between the parties about the time of giving a security is sufficient upon a question of usury ; nor the evidence of a witness that he believes he was privy to every transaction, and all that he was privy to were tainted. There must be distinct testimony affecting the specific instrument.</p>

The bill in this cause sought the correction of various accounts in which the defendants stated a balance to be due to them from the complainant, on account of monies received from certain property assigned as security ; payment of a balance due him as alleged upon the transactions ; and a surrender of various collateral securities held by him, as well as certain vouchers of indebtedness.

<p>Where a bill is filed and a bond given to stay an action at law, and the complainant does not make out his case at the hearing, it is proper to insert a clause in the decree (and not have a separate or after order) for the delivery up of the bond.</p> <p>The cause having been heard upon pleadings and proofs, the court decided against the complainant with costs. The suit was brought after a judgment at law, and the usual bond had been given under the statute, to cover the amount of the judgment and costs. In settling the decree, application was made that a clause be inserted for the delivery of the bond, to be put in suit,</p>

<p>Where an assignment was made to secure among others, and by way of preference, a party who had promised to guaranty the debt of the assignor, but the promise was void, being by parol and without consideration; held, that the creditor could not avail himself of such guaranty.</p> <p>Where a point has not been fully gone into before the hearing, and a case of suspicion or doubt arises, the court will sometimes put the matter in a train for further inquiry. But in general, the parties must abide by the evidence taken upon points put in issue.</p>

The bill in this cause was filed for the purpose of establishing an exclusive right to a part of certain funds in the hands of the administrators of Francis E. Reed, for which a certificate of… Held: and also to obtain an account and payment of other monies received by the administrators since the death of their intestate, the avails of flour belonging to the complainants.

<p>A testator directed a division of his estate to be made at the expiration of seven years from his death, provided his daughter had then been dead two years, and gave, out of a fourth part, the sum of $500 to a legatee, and that the residue should be paid to a trustee, to keep the same invested, and pay the income to S. M. B., until the eldest child of the said S. M. should arrive at the age of twenty-one years; then to divide it among the children of said S. M.</p> <p>The eldest child living at the death of the testator, was about nine years old, and the youngest six months—one was subsequently born.</p> <p>Held, that even assuming the term “ eldest child” could be limited to the eldest living at the testator’s death, the devise was void', as alienation would be suspended for a certain period of twelve years.</p> <p>Held, that the term meant the child which should first arrive at age.</p> <p>Any limitation which may, by possibility, produce a more extended suspension than for two lives in being, is void.</p> <p>The disposition of the income being for a period not permitted, was also held invalid.</p>

<p>The authority of an agent to sign an agreement for sale of real estate, need not be in writing. But the testimony should very clearly establish the authority to make the contract substantially as made.</p> <p>Where a bill is filed against a principal, on the agreement of an alleged agent, and the answer denies such agency, while the testimony tends to support the denial, an advertisement on the premises, which gave a reference to the agent, as well as to the principal, will not be a sufficient implication of a power to make the sale.</p>

The bill was filed by a judgment creditor of the defendant Brittain, who had issued an execution, and had it re- ^ turned unsatisfied, combining the usual allegations with certain charges respecting transfers of personal property by Brittain to the defendant Jones, and seeking to have them declared void, or to be declared securities only, and to have been satisfied.

The bill in this cause was originally filed against Alexander Birbeck and wife, for the purpose of foreclosing a mortgage given by them to Matthias Bruen, and stated to have been assigned by him to the complainant. In the answer the defendant averred that he was. ready to pay the amount when he could do it with safety, but that he had been forbidden' by Matthias Bruen- to do so.

<p>A judgment was recovered in February term, and docketted on the 1st of March, 1839.</p> <p>Á judgment creditor’s bill, stated it as recovered “on the 1st day of “March, in the term of April, in the year 1839;” the true term was February. Held, that the error was not fatal to the bill. That the teste was, whether the allegation in which the error existed was unnecessary or essential—and that it was the former.</p> <p>The bill also stated, that “ on the 23d of March, the complainant “ sued out an execution, directing the sheriff to make the debt of “the real estate of which the defendant was seised on 23d of “ March.” The execution being produced at the hearing was correct, directing the levy of real estate held on the 1st of March. As it appeared on the face of the bill, the complainant had not exhausted his remedy at law, as the judgment bound any land parted with in the interim. The objection was held good, but the cause was allowed to stand over to amend, there having been no witnesses examined; and if there had been, the variance in the record, not calling for and scarcely admitting of any proof.</p> <p>The bill stated a direction in the execution to levy interest from the 1st of March, the proper time. The execution was erroneous, being to levy with interest from the 5th of February. Held, that the variance was no objection to the bill, because the time might have been omitted, stating only a direction to levy with interest; and that the misdirection in the execution would not have been sufficient to avoid it at law, and should not defeat the bill here. The amount in the tolo se attingunt clause was $308 27, and the bill stated the judgment to be for $308 33. The six cents cost adjudged, made the difference. The execution was for the $208 27• Held, that this was not an objection to the bill.</p>

The bill in this cause was filed for the purpose of compelling the execution of a conveyance by the defendants, claiming under the will of Medcef Eden the younger to the complainants, claiming under an assignment or transfer of a certain bond and mortgage, executed by Medcef and Joseph Eden, his .brother, to one Joseph Winter.

<p>A debt was contracted in November, 1837. In March of that year, directions were left with an attorney to prepare a voluntary settlement upon awife. It was then prepared, but not executed until September, 1837. At that time the settler owed about §40,000, and was largely indebted, when he contracted the debt to the complainant. All the debts owing by him when he made the settlement were paid off, but it did not appear that they were paid in the period between making the settlement, and contracting the debt in question. They were paid chiefly by incurring other debts. And though the creditors changed, little variation as to the amount of debts took place. The complainant obtained judgment in February, 1838.</p> <p>Held, that the settlement was fraudulent and void.</p> <p>Held also, that although the interest in the property was contingent under a devise, it might be sold, all proper parties to join in the conveyance.</p>

<p>A. was proven to have been the agent of a number of proprietors associated in the purchase of a tract of land for the purpose of collecting testimony and employing counsel. While a suit concerning the land was in progress, A. agreed with the complainant as was alleged in the bill, to allow him 640 acres for part of his compensation for his services.</p> <p>Held, that whether the agreement was proven or not was immaterial, as an agreement to pay counsel apart of the property to be recovered, made pending the litigation, was void. Concluded from the cases examined,» that a voluntary gift made while the connection of counsel and client exists is absolutely void, and the property can only beheld as security for such charges as the party is lawfully entitled to make. A transfer made upon an ostensible valuable consideration is presumptively void. The client may require the attorney to show that the price or terms were as beneficial as could have been obtained from a stranger. A transfer of part of the property actually in litigation, or a contract to transfer it is illegal, both on the ground of the relation of the parties, and of the doctrine of champerty. It will not be enforced on behalf of the attorney ; and if the client applies, will be cancelled on equitable terms. The rule applies to any such arrangement made during the suit, and the continuance of the connection whether the compensation is put on the ground of past services, or the consideration of future, or of both.</p> <p>It Is not sufficient to take the case out of this rule that the attorney had a share in the property in his own right. That would have prevented the doctrine of maintenance applying independent of the professional character, but does not affect the principles of the rule in the question.</p> <p>An agreement made after the suit was determined, to allow the sum of $10,000, and a subsequent agreement to allow a certain quantity of land in substitution of the money as a final compensation, was held binding as against all the associates by whom it was admitted to have been made. But as to the others, held, that the general power to employ counsel did not authorize an agreement to remunerate-them in land. Held also, that where the first agreement to pay the sum of $10,000 was admitted, the parties were bound, and their shares of the land, which by the articles were in the hands of trustees subject to legal claims, was decreed liable for the proportions. As to the associates who did not admit any agreement, an inquiry offered to-establish it under' the circumstances.</p> <p>By the common law a trust devolves with the legal title upon the heir of the trustee. Our statute has expressly provided otherwise. The heir may refuse the office, or this court may be applied to to appoint a new trustee. But until this is done, the trust, except where our statute applies, follows the estate.</p>

This cause arose upon, a creditor’s bill, and was brought Fea hearing in February, 1840, and in March ensuing an opinion was delivered, in which the Assistant Vice-Chancellor came to the conclusion that the bill ought to be dismissed as to the defendant Sedgwick with costs, and that certain articles of small value belonging to Huntoon should be delivered to the receiver, and as to Huntoon and the complainant, neither party to have costs against the other.

The bill in this cause was filed to obtain an adjudieation t^e court that certain real estate held in trust by the defendant Richards, was the sole and exclusive property of the complainant; that the rents should be applied to her separate use, and a direction to a trustee so to apply them, or for his removal and appointment of a new one, or a receiver.

<p>Although in general a bill in this court will not lie, after a party has put it out of his power to fulfil a contract to convey land, when the fact of his having disqualified himself is known to the complainant previous to the filing of the bill, yet where no action could be sustained sat law, but a bill might have been supported here, the rule do,es not apply. Hence, where a parol contract was sought to be enforced on the ground of part performance, and no action could have been brought for damages, this was held no objection to the bill, although filed after the party contracting had conveyed away the property. In such a case, the assessment of damages through this court, is the only remedy open.</p> <p>The possession, when set up as an act of part performance, must be referrable to the agreement. It must be either delivered by, or taken with the consent of the vendor. If otherwise obtained, it cannot avail.</p> <p>Where no other title to possession, and no other origin of it is proven, it is prima facie to he referred to the agreement.</p> <p>If the assent to the possession is denied, and there is no proof of it, the suffering the party to occupy the property for a few months witho.ut turning him out, when the property was of trifling value as to profits, and no improvements were put upon it, is not sufficient.</p> <p>If a defendant admits a parol contract, he must set up the statute. But not where he denies any agreement. Then the complainant must prove a valid one.</p>

<p>A. having mortgaged certain premises, conveyed them to B. who conveyed to the defendants. The last conveyance specified the mortgage, and described .the premises “ as subject to the mortgage which is taken as part of the consideration money, and “ which the party of the second part agrees to pay and dis- “ charge.” B. had not become responsible for payment of the debt to A. but took the property subject to the mortgage. Held, that on a bill of foreclosure by the mortgagee, he had no right jo a decree for any deficiency against the defendants.</p> <p>The cases are of two .classes—-first, where the assumption of the debt is clear, but it is still to t¡e decided whether the personal or real estate is .the primary fund. Next, where the .question is whether any assumption has been made. A covenant or clause like that in the present case is to be construed as personal to the immediate parties. There must be a contract with the mort--" . gagee -to extend it to him. If the grantor had been liable to the mortgagor, so that the mortgagee could plainly reach him for a deficiency, the case would have been diflferent. "</p>

<p>An agreement was made containing a covenant restraining the carrying on of a trade generally, and which was clearly illegal. It also contained a covenant to keep secret the skill and mode of converting cast iron into malleable iron, which was held valid.</p> <p>Held, that where an agreement is made upon several expressed considerations, one of which, if it stood alone, would have supported it, the union with-an illegal consideration shall not destroy it. But if one of the considerations is in violation of a positive statute, or malum in se, the whole contract fails. The cases upon this subject examined.</p>

This was a bill of interpleader. The court having determined that the bill was properly filed, and the complainants entitled to costs, the cause was argued as to the conflicting rights of the defendants.

<p>By the settled law of England, the primary right to the custody and control of children, without regard to sex, and with a slight qualification as to age, is in the father.- And such is the rule-of the courts of common law in this state.</p> <p>A similar rule prevails in the court of chancery, where the application is by a summary process for the custody of a child, whether independent of a suit to settle the right, or connected with one. But where there is a bill by the wife for a limited divorce, and it is sustained, the prima facie right to the custody is reversed. It is in the successful mother, not in the father. The decree, however, does not dispose of the matter absolutely.</p> <p>There is yet a discretion in the court. The question is open whether to give the custody to the mother with a duly regulated right of access to the father, or e converso. The court perhaps may also have the power to make the children wards of the court with- a guardian of the persons, appointed by its decree in a case of a bill for a limited divorce.</p>

<p>A. conveyed one parcel of land on one side of a mill-pond to B., and another parcel on the other side to C. He also conveyed “the dam and the stream-pond and pondage ground adjacent to “ the lands above described, and bounded as follows,” &c., to both as tenants in common. In consequence of alterations made by one of the parties, litigation arose as to the" fair division of the use of th e water; and a bill of partition was filed, praying a sale, if no other mode of dividing was practicable without injury to the parties.</p> <p>Held, upon examination of the cases, that the court possesses the power of decreeing a partition by regulating the use of water, either by driving a stake properly marked as was suggested, or ■using it for alternate periods. But that the mode of dividing by a sale of the premises given by the legislature, was a more effectual method of meeting such difficulties as were here presented; and there was no reason for supposing that a sale would not realize the fair value of the property. Practical inconveniences would attend any other mode.</p>

The bill in Ihis cause was filed by a judgment creditor after execution returned unsatisfied, for the purpose, first, of having an assignment of partnership property set aside, and next, of declaring a certain bill of sale of household furniture fraudulent and void, and that the amount of the judgment might be paid out of the funds.

The bill in this cause was to obtain payment of a judgment debt, out of funds in the hands of a receiver, after execution return unsatisfied. In the year 1836, the above named defendants, except Miller, were partners in trade. In May of that year, Smith filed a bill against his co-partners; alleging certain acts of misconduct, stating a dissolution to have been made by consent, and praying an account, an injunction, and a receiver.

The bill was filed to procure a decree dissolving the partnership between the complainant and the defendant, and for the usual accounts to be taken. It contained various allegations of improper conduct on the part of the defendant, and of his refusal to go on with the business. The defendant denied these statements, and opposed the dissolution.

<p>After a dissolution of a partnership, and assignmentby one partner to the other, one partner may file a bill for a settlement of the partnership concerns,and may unite in sucha bill (except where a demurrer for multifariousness will lie,) an impeachment of a transfer of property. Qttere, Whether by analogy to the case of bill for the distribution of assets, a creditor may not file' such a-bill without obtaining judgment.</p> <p>At any rate creditors may be joined in such a bill. Where one partner releases to another all the partnership effects and dues, in consideration of an assumption of the debts, he may still unite with creditors in preventing or redressing an improper application of the funds.</p> <p>Where one partner brought all the stock into the firm, for which he was indebted to another person, and it was agreed that the appraised price of it should upon a dissolution be refunded with interest, the partner is not constituted a creditor, nor has he such a lien as authorizes him to transfer it to his creditor. He has a lien inter se, but not as against the creditors of the firm. Ex parte Hunter, 1 Atk. 225, has been repeatedly overruled. The question always is, whether the debt, which originally was separate, has been adopted as the debt of the firm. The mere fact of the goods coming to the use of the firm is not sufficient. Money borrowed on the mere security of one partner though applied to the use of the firm, is not enough, even if the other knew from whence it came. But if money is borrowed without any separate contract, and so applied, it is prima facie evidence of a partnership debt.</p> <p>Held, in the principal case, that upon the evidence there was no adoption of the separate debt as a partnership debt.</p>

On the 7th of February, 1837, a bond and mortgage was executed by the complainant, to the defendant Van Pelt, to secure payment of the sum of $425. On the 3d of February, 1838, the securities were assigned by Van Pelt to the defendant Southworth. On the 14th of April, 1838, South worth caused a suit at law to be instituted on the bond, in the name of Van Pelt, against the c'omplainant.

<p>It seems that where all the parties complainant and defendant are next of kin and heirs at law, a bill may be filed for an account of the personal estate and a partition of the real.</p> <p>Where a bill stated that one of the defendants had been in possession since a certain event, and continued in possession, and the answer claimed the title under certain instruments, held, that a bill for a partition could not be sustained, although the inception of the possession was as tenant in common.</p> <p>Thee ases stated in which a bill will be retained while the party proceeds to establish his right at law, and get possession. But under the positive provision of the statute, held that no bill can be filed where there is a hostile possession, and no action can be allowed.</p> <p>Although an ififant cannot have a deed avoided until coming of age, yet he may enter into possession of the rents and profits. It seems that a suit in this court for the appointment of a receiver would at least be sustained as equivalent to such an entry.</p>