Volume 1 — Hopkins's Chancery Reports

This cause being noticed for hearing, the chancellor informed the counsel of the parties that he was a stockholder in the Washington Insurance Company, and that according to the opinion which he then entertained, he could not hear the cause : but he expressed a desire that the question, whether he ought to act as judge in the cause or not, should be argued. The counsel declined to argue the question, and the chancellor this day gave his opinion.

In this case, it became a question, what oath or oaths should now be required from solicitors and counsellors upon their admission to the bar. If the station of a solicitor or counsellor is an office or a public trust, the oath to be taken is prescribed by the new constitution, and no other oath can be required. If this station is not an office or a public trust, the oaths heretofore required, must be taken.

This was a motion to dissolve the injunction issued in this cause, on an affidavit, stating that the subpoena was served on the defendants in the month of x July last, and that their appearance was duly entered the first day of August thereafter; and notice thereof was duly served on the complainant’s solicitor. But that the complainant’s Solicitor had neglected to serve on the defendant’s solicitor á copy of the bill.

moved to bring on the argument on the exceptions to the master’s report, made upon exceptions taken to the answer. Mr. Slosson as a preliminary objection, stated, that the defendant had not appeared before the master to make his objections on the summons to hear the report. 3 John. ch. 80. 87.; Wyatt’s Prac. Reg. 381. The rule in the cases cited, does not apply to a case like the present; but only to exceptions to a report after hearing.

The bill in this case sta- ted that the defendants, the trustees of Orr, an absent debtor, «/under the act, entitled “ An act for relief against abscond-an¿ aj3sell^ debtors,” had paid all his debts from the proceeds of the sale of part of his estate; that a considerable real estate of the complainant remained in their hands unsold, and unnecessary to be sold for the objects of the trust; and prayed for an order or decree of this court, empowering and directing the…

The bill stated, that in the month of August 1821, the following agreement was made between the complainant and the defendants Stephen Whitney, Elisha Tibbits, and Goold Hoyt, Yiz. “ Articles of agreement made the 24th day of August 1821, between Stephen Whitney, Hoyt and Tom and Elisha Tibbits, owners of the ship America of the first part, and WiL liam A. Weaver of the navy, of the second part, witnesseth, ^at whereas it has been represented by the party of the seconci…

Mr. Gerard presented the petition of--, one of the defendants, setting forth, that since the filing of his t answer, he had procured the exemption of his person from imprisonment, under an act, entitled “ An act to abolish imprisonment for debt in certain cases,” 43 sess. ch. 101. and praying for leave to file a supplemental answer, setting forth his discharge. That this was the proper practice, he cited Cooper’s Pleadings, 338, 339.

John Lawrence late of the city of New-York, esquire, being possessed of a large real and personal estate, on the 9th of November 1810, made his last will and testament, by which after sundry devises, he authorised his executors to lease, mortgage, or sell his real estate.

The first of these causes, was upon a bill filed oil the mortt 1 gages hereafter mentioned. The second was in the nature of a cross bill; and upon this last only, the questions arose, ...... which it is deemed useful to report.

This cause was heard much at large upon the pleadings . or r & and proofs, and several questions were raised and discussed, which being either mixed questions of fact and law, or… Held: the courts of equity would at one sweep bring within their control the entire jurisdiction of the courts of common law. Again, no person can bring a trustee before the court for the purpose of procuring the property held in trust, hut a cestui que trust, all others are mere strangers.

This was a bill of revivor. The original suit was instituj ted against Pell and wife with others, to foreclose a mortgage, upon premises on which Mrs. Pell as executrix, claimed a pri- or lien, the validity of which was contested.

William Byron being seised of a house, Sic. in New-York, on the 7th day of October, 1813, made his will, duly executed, to pass real estate, and thereby devised the same, (after some contingent devises which did not take effect,) to his wife Willeminer Byron, who after his death, and before the execution of the mortgage hereafter mentioned, became duly seised, Sic. Willeminer Byron being so seised, mortgaged the premises.

This cause had been formerly referred to a master to take an acc0Tmt. an¿ the parties had attended before master Hawley, upon the coming in of whose report, stating a considerab)e ti alance due to the complainants, the defendant filed exceptions'; but he neither made a deposite, or set down the exceptions to be argued.

<p>Bile for divorce, by husband against wife, fpr adultery, and a decree of divorce-.</p>

<p>The court will not appoint any of its officers, as such, to act as guardians; nor appoint any person without his written consent.</p>

On bill of review. The Chancellor being a stockholder in the Albany Insurance Company, had declined to hear this cause; and the r _ • „ cause was now heard before the chief Justice. Ihe tacts are So fully stated by him, in giving his opinion, that no farther statement is deemed necessary.

The ' point here decided, was the same as in Norton v. Kosboth, supra. A special agreement had here been made, tending towards an adjustment, but had proved ineffectual; and the complainants now moved to dismiss their own bill with costs, which the defendant opposed.

The history of this cause previous to this time, will be found in 13 John. 307.; 2 John. ch. 526.; 17 John. 365. ;v 5 John. ch. 351.; and 19 John. 513. 572.

The bill was for relief against a judgment for $50, recovered in a justice’s court, against the complainant, by means 0f a very gr0ss iraud. The defendant demurred generally* because the amount is within the limits of the jurisdiction of a justice of the peace. Mr. Davis, for the demurrer, relied upón Moore v. Lyttle, 4 John. ch. 183. This is a case of a judgment obtained against the defendant by collusion and conspiracy.

Tke suit of Waring v. Van Slyck of which this is a revivor, an¿ which it is a supplement, was commenced in 1820. A decree was made in 1821, from which there was an appeal court of errors- . The object of the suit, was to adjust the rights of the parties to the steam boat Ontario, and for an account.

Both parties reside in New-Jersey; upon which Mr. Warner moved for security for costs, and suggested as a reasonable amount. objected, that by the rules of the court, the solicitor is liable to the extent of .f 100, and more can not he granted, without special cause shown. No such cause appearing here, the motion will he denied.

Bill by the widow and legatee of the testator, for an account, &c. The defendant’s answer showed, that questions would arise under the will, involving all the right of the complainant to the remaining assets, considerable sums having been already paid to her. The complainant now presented a petition, to be allowed a sum out of the fund in the defendant’s hands, for her support ; and also to enable her to prosecute this suit.

Bill for a divorce, a mensa et thoro, for the cause of eraelty. Mr. Conkling was opening the cause for a final decree, when the chancellor asked whether it came up upon a verdict on a feigned issue, or upon a master’s report ? Mr. Conkling. Neither. The bill has been taken pro confesso in the usual way, and in pursuance of the statute.

The bill was for a foreclosure, 8zc. on a mortgage for $500 with annual interest, at 7 per cent. One year’s interest, viz. $35, had now become due, but no part of the principal yet payable. To this bill the defendant demurred generally, on the ground that the court will not hold jurisdiction of so small a demand, it being beneath its dignity. Mr. Warner for the demurrer, distinguished this case from that of Vredenherg v. Johnson, ante, p. 112., in two particulars : 1.

This petition was for a sale of lands belonging to the infants.

The bill was for the foreclosure of the equity of redemption in a mortgage for one thousand dollars executed by Jeremiah Lansingh, deceased, on the 13th January 1816,-to David Schuyler, also deceased, on a lot of land in Pearl street in Albany, which mortgage had been assigned to the complainant Meads, as security for five hundred dollars.

This bill was filed by the complainants, as members of an association formed on the 1st of May, 1823, for raising out of the water the British frigate “ The Hussar,” which, during the revolutionary war, and about 1781 or 1782, had sunk the East river, near Morrisania, in the limits of Westchester, in sixty or seventy feet water, and was stated in the bill to be abandoned and derelict.

The object of the bill in this cause, was for relief against a deed of conveyance of lands, alleged to be forged or fraudu^enb or otherwise invalid, and for an injunction to restrain the prosecution of certain actions of ejectment grounded on the deed. The bill also prayed to have the testimony perpetuated.

After the decision of thé cause of Gibbons v. Ogden, in the supreme court of the United States, the defendant in this cause, equipped a steámboát called the Olive Branch,” which he caused to be duly enrolled and licensed, under the laws of the United States for that purpose, and with which he proceeded from the city of New York to Albany, touching at' Jersey, as hereafter mentioned.

This cause came before the court upon an appeal filed by Jasper Ward, the complainant in the court below, from a decree of the judge of the first circuit, in equity, whereby he decreed a dissolution of the injunction granted by him on the filing of the after mentioned bill, upon the ground of want of jurisdiction, 8cc.

This was a bill of interpleader. The complainant who was a lottery office keeper, in New York, sold to one Hatch at Hartford, one quarter of a ticket in a lottery, duly authorised by law; for which quarter he gave a certificate in a form usual with lottery dealers, payable to bearer. Hatch sold to the defendant Morgan, one half of that quarter, for which he granted a new certificate, keeping the former one which he had received from Canfield.

On an appeal from an order of the surrogate of Niagara county. S. B. Morehouse late of the county of Niagara,having died leaving two infant children, who had no nearer of kin of either side, than uncles; the surrogate appointed the respondent Bates Cooke, to be their guardian.

This was an application to the chancellor, in the nature of an appeal from the taxation of the master’s costs, upon a sale of mortgaged premises. The master had gone forty miles to attend the sale, and spent three days in the business.

This was a bill fov an account. Upon the reference before the master the complainant examined the defendant on certain points.

The bill was for the foreclosure of the equity of redemption in mortgaged premises and for a sale; and was taken pro confesso. On the usual subsequent proceedings, a sale had taken place, at which the premises brought a price much less than the amount reported by the master to be due.

<p>The defendants’ testator held notes against a manufacturing company in trust for the complainant’s intestate, which notes he invested in the stock of a different manufacturing company. This being done in good faith, and being deemed advantageous at the time, the estate of the trustee shall not be charged with the loss.</p>

<p>The complainant holding two mortgages against the defendant upon distinct parcels of land, brought this bill for foreclosure and sale. On one sale, there was a surplus, and on the other, a deficiency. „</p> <p>Held, that the surplus of one could not be applied to supply the deficiency of the other# The English doctrine of tacking mortgages, does not apply in this state.</p> <p>It seems to be the spirit of our law, for the registry of mortgages, that each mortgage is a security for the specific debt mentioned in it, and no more.</p>

The complainant is chief agent For the sale and management of the Pultney estate, which is a tract of land heretofore purchased by Sir William Pultney, comprising a great part of the tract now constituting the counties of Onta--rio, Steuben, Allegany* Wayne* Yátes* Monroe* and Livingston.

Bill of interpleader. It stated, that the complainant resides about five months in the year in the first ward of the city of New York, and about seven months, at Rhinebeck in Dutchess county.

Petition of the complainants, children and heirs of Charles Clarkson deceased.

<p> ON settling the decree in tMs catiSe, </p>

Injunction bill. The defendant having answered the bill moved thereupon to dissolve the injunction, to which the complainant objected, upon a certificate from the register in general terms, that exceptions to the answer were filed.

Bill on a mortgage. The amount due to the complainant was not contested. The defendant Pell, was a subsequent incumbrancer by means of a mortgage made to secure a bond for performance of covenants; and on taking the account before the master, it appeared, that the question whether any thing or how much was due on this bond, was matter of litigation between the defendants Macomb and Pell.

The bill states, that at a meeting of a board of trustees of the Auburn academy, on the 5th of April, 1822, a resolution Passed appointing John A. Beach, Horace Hills and JoseP^ Pitney, three of said trustees, an executive commit-: tee, to continue for one year, or until another, be appointed* “ whose duty it shall he to procure proper apartments, and “ a teacher or teachers for the purpose of putting into opera- “ tion the academy ; and that they have power to expend, the “…

Bill for sale of mortgaged premises. The defendant Winans was a purchaser subsequent to the mortgage. Mr. S. Riker moved the usual decree for the sale, there being no opposition. But upon reading the master’s report, it appeared that a certain sum was included for insurance of the house mortgaged against fire.

This bill was filed by the complainants, merchants of NewTork, as being some of the creditors of the defendant, to set aside a composition of the defendant’s debts, which was entered into between him and them upon his failure, in the year 1817. The bill gives a very detailed statement of the circumstances under which the debts were contracted, and of the failure of the defendant, and his subsequent proposals, and of the composition sought to be set aside.

.The subject of controversy in this cause, first came before the COurt, in the cause of Denton and others v. Jackson and others, reported in 3 John, ch. 330 : and a decree was- made in the year 1817, . That cause was subsequently carried; to' fee court of errors, and feat decree was in part- reversed,-as mentioned by fee chancellor, in his opinion in this cause, See also Mr. Johnson’s general index in the 7th volume of his chancery reports, p. 254.

Bill by creditors, against the persons composing a mantifactoring company incorporated under the act of the 22d of March, 1811, charging the company to be dissolved, and , . . , ... seeking payment from the persons composing it, to the extent of their respective shares of stock.

The petition of the complainants stated, that they were judgment creditors of the defendant Graves, and had issued ° . executions, which had been returned unsatisfied, except in part. The defendant had conveyed to his brother and to his brother in law respectively, all his real estate, and had also sold or transferred to one of them part of his stock in trade, and the residue to one Gray on credit.

John Turner junior, of New York, merchant,, died in 1801; having first made his will, of which he appointed his wife Christiana, and James Dunlap, now… Held: that a release may be on condition, and even subject to a defeasance. The principles are arranged and collected in Shep. Touch. 320. 323. 342, 3. A release, operating by way of mitter le droit, and on condition, makes that condition, in its nature precedent. The condition would be gone, unless it were precedent.

Guisbert Lane, heretofore proprietor of Loveridge’s patent in the town of Catskill in the present county of Green, conveyed in fee, to Peter Overbach and several other persons whose rights the complainants hold, sundry farms in that tent, and also a right of common of pasture and of estovers, in the other lands belonging to the same patent.

Petition for the sale of certain real estate of the infant, under the act of 1815. Accompanying the petition was a' report of a master, stating the situation and value of the proposed to he sold, and also, that for the reasons therein mentioned, the interest of the infant requires, that the said lands should be sold. But the report contained no statement of the other property of the infant, either real or personal.

This was a bill for the adjustment of certain accounts of money transactions, of long standing and great intricacy, ^emanc^s ma(le by the complainant, were not only against the defendant personally, but also as executor of the wills of :^s tvrP deceased brothers ; and by agreement of the parties, all the accounts were litigated in this one suit..

The bill in this cause set forth a deed poll, dated the 14th of September 1824, whereby Henry Eckford, for the consideration of one dollar, assigned to John B. Brown and several others, “ all his right, &zc. in and to the newspaper “ entitled the National Advocate, now publishing in the city of “ New York, at number 48 Wall street, with all the books, “ types, presses, issues, profits, rights and incidents belonging “ or appertaining to the said newspaper.” The assignment J…

By a concurrent resolution of the senate and assembly, at „ . i . the present session, the attorney general was directed to issue SUC^ leSal proceedings as might be necessary and proper, for the… Held: as long ago as the time of queen Elizabeth, Eden on injunct. 162, 3, 8. The charter of this bank is forfeited by nonuser, as well aspy mjsuser) and the institution being insolvent, it is a public nuisance for them to make use of banking powers.

moved to suppregg (jepOSjtions taken under a commission to examine witnesses in the state of Rhode Island, upon affidavit, that the witnesses were examined privately, and that liberty to cross examine was denied, which he said was contrary to the late act, 46 sess. ch. 182. sec. 16. read an affidavit, that the instructions for the private examination were given by mistake; the solicitor not having adverted to the difference in the practice, which may result from the late act.

<p>presented a petition upon notice to the solicitor for the complainant, given on Thursday for Monday following.</p> <p>that the notice was too short. By the 53d general rule, notices of special motions are to be given four days “ exclusive of the day of service.” It is different from the rule in the supreme court, where one day is exclusive, and the other inclusive.</p>

The complainant had recovered a verdict at law, for nine thousand dollars against the defendant, in an action for scduction. The defendant moved for a new trial; and before judgment at law could he perfected, he advertised his whole real property in the city of New York, which was very considerable, for sale by public auction.

Upon the petition of Daniel E. Dunscomb, one of the complainants. The facts appearing ojn this petition, are so fully stated in the chancellor’s opinion, that no farther explanation seems necessary.

Mr. Boyd presented a petition of the ladies directresses of the Orphan Asylum society, for the reinstatement of this cause ; which had been formerly dismissed, upon their own application: p. 106.

On the 14th day of November, 1823, Philip Hone of the city of New York, merchant, filed his bill of complaint, in court of equity, for the first circuit of the state of New York, against William Cairns and Elizabeth his wife, Baltus Moore, acting executor of Blaze Moore, deceased, Robert Sedgwick,TX • , T , . . nr.,,. lr !

Samuel Vanderheyden of the county of Rensselaer, died on the 27th day of November 1823, leaving a large real and estate ; and having first executed a paper writing hearing date the 14th day of November 1823, purporting to be his last will and testament.

The bill in this cause stated, that the complainants and those un(ler whom they held, were severally seized in fee of certain lands in… Held: were severally seized in fee of certain lands in the county of Washington, through which the outlet of Sigh’s lake had flowed from time immemorial: that for more than thirty years last past, they had been in possession of mill seats and mills oh that outlet, and oh the outlet of McEackrons’s lake, into which it empties ; and that the…

Mr. Butler, upon notice given, presented a petition by Joseph Valentine, the purchaser of mortgaged premises, at a master’s sale, praying for a writ of assistance to the sheriff *' of Dutchess to put the petitioner into possession. The petitioner stated, that he had received a deed of conveyance from the master, which had been shown to the defendant, accompanied by a demand of possession, which had been refused.

The following opinion of the chancellor in this cause, regards, principally, the .question of interest chargeable against a guardian. The preliminary proceedings are sufficiently explained in the opinion itself: and the nature of the question is such, as seemed to make it unnecessary, to insert the ai’guments of counsel.

The complainants had formerly filed their bill against the defendants McCartee and others, which bill was dismissed, upon the motion stated above, p. 106.- They subsequently moved to discharge the order of dis-mission, which motion was denied : see above, p. 372.

The bill in this cause was for a specific performance of a contract for the exchange of certain lots in the village of Newburgh, for two farms in other parts of the county of Orange. The cause was heard before the late chancellor in 1822, when the hill was dismissed. 6 John. ch. 222.

This cause was put at issue in July 1823, and rules were taken to produce witnesses, after the expiration of which, and in December following, the complainant Evert Pells, who was a material party to the suit, died.

This very litigated cause came before the courts in different stages of its progress in 1 John. Ch. 66. 450. 2 lb. 543., 3 Ib. 1. 77. and 17 John. R. 548. In consequence of the important principles settled by the decision in error, this cause had been again referred to a master, for a new adjustment of the accounts.

This was an appeal from an interlocutory decree of the judge of the first circuit m equity. The bill was filed by the associates of the Jersey company.

This cause was submitted to the court, upon a special report of master Hoffman, the object of which was to obtain instructions from the court. Mr. Hoffman had also reduced to writing, the result of his investigation into the questions submitted; which result was approved in general terms by the court; and the substance of the master’s investigation, was as follows: On the effect of a bill taken pro confesso.

The bill in this cause was filed in the name of Antoinette 'pjieocjprjne Qavjn Ferlat of the city of New York, an infant, by Stephen Ferlat of the same place, her… Held: not to be a marriage de jure ; because she affirmed upon her examination and upon her oath, that she was in such fear, that she knew not what she answered or did. Yet it was a marriage de facto, and a felony : and judgment was given that they should be hanged. Fulwood’s case, Cro. Ch. 482. 484. 488. 492.

A bill -had been filed and an answer put in. It appeared, that Dulary died in 1807, leaving a will, by which he made his daughter Madame d’Aitz, sole legatee of his personal estate, and appointed her and the late Jacob Le Roy, his executors; the latter of whom alone, proved the will.

The original bill in this cause was for a partition among cotenants. At a subsequent period, a supplemental bill was filed, to bring before the court the judgment creditors of the defendant David Mersereau : and finally, no less than four bills were filed in the course of the cause.

Bill for account of guardianship. The master reported abalance due to the complainants ofl 2,616 dollars 82 cents. Exceptions were taken by the complainants,but none by the ant. Pending the exceptions, the complainants moved for an order that the amount reported might be brought into court, which was accordingly done; and the money was investedfoy the order of the court in public stock, in the name of the Assistant Register, to the credit of the cause.

The bill in the circuit court, was to foreclose a mortgage. It alleged, that a bond and mortgage had been given to Luke powerj t0 secure a debt; that the debt had not been paid ; that the mortgage had been assigned to the complainant, Westcot: and the bill prayed a foreclosure and a sale in the usual form.

William Muir of the city of New York, died in 1809, leaving both real and personal estate. He had previously, made his will, by which he gave his estate to his children, in different shares. The complainant was one of his children, and a minor. On the twentieth day of February 1809, the surrogate appointed the defendant George Wilson, guardian of the complainant, in the usual manner.

The bill in this cause was filed to vacate a sale made under an execution issued by the direction and procurement of the defendant Halsey Rogers, on a judgment obtained against Thomas Rogers the ancestor of the complainants, in favor of James Rogers; which judgment was assigned to Halsey Ro gers, who at the time of the sale, was the sole executor of the last will and testament of Thomas Rogers ; and to obtain an account of the trust and acts of the executor.

The complainant filed his bill on the 6th August, 1821, setting forth in substance : that on or about the 22d Decemtier, 1798, one Edmund Curtiss junior of Connecticut, applied to him, to purchase a sloop then owned by him, and valued at 1,500 dollars: in payment of which he offered to convey two lots of land, known as numbers 65 and 49, in in township number 12, fourth range, containing each 320 acres, situate in the then town of Northfield, now town of Perrington, county…

John Cornell being possessed of a large personal property, died intestate : and the appellants in this cause, were appointed administrators of his estate. James Cornell one S0nS) instituted a suit against those administrators, for the recovery of a distributive share of his father’s property, before the surrogate of Dutchess.

The bill stated a long narration of facts, from which it deduced to the complainants, a title to lands; and sought a discovery of certain matters, which the complainants were able to prove, at law.

This bill was filed by a wile against her husband. Held: that the party was not bound to make a discovery, were principally, bills filed for discovery merely, and not bills for relief. A defendant is bound to answer a bill for relief, though his a .swer may expose him to shame, or subject him to loss.

The bill stated, that the complainant being seized of a lot of about 500 acres of land in Argyle, agreed with Abraham Van Deusen, in 1816, to sell it to him for 2500 dollars, of which 500 dollars was to be paid at the delivery of the deed, and the residue in four annual instalments, to be secured by bond and mortgage: that a few days thereafter and before any payment was made, Van Deusen agreed with Joseph Wright and Isaac Powell to sell them the same land for 3,700 dollars…

This cause and the previous proceedings in it, as they {qqJj p]ace jn L]jis court and the court of errors, are detailed the fourth volume of Mr. Cowen’s reports, page 667. court of errors reversed the decree of the late chancellor, and remitted the cause to this court, without directing what subsequent proceedings should take place.

This bill was filed by the complainants as trustees for the creditors of the defendants Caryl and Storrs, who being indebted to several… Held: and of which Williams and Caryl and Storrs were respectively either drawers or indorsers, and that nearly the whole of their judgment remains unsatisfied : that Camp as cashier, holds the assignment : that upwards of two years ago, the bank refused to redeem their bills and stopped payment, as did also Caryl and Storrs about the same…

On the sixteenth day of July 1820, Phebe Paff exhibited her bill in this court, against her husband George Paff, charg* him with adultery, and praying a divorce.

By an act of the legislature of the forty eighth session, chapter 117, page 198, a bank was incorporated, by the name of the President Directors and Company of the Commercial Bank of Albany.

The complainant a mortgagee, had filed a bill for the sa~ tisfaction of his mortgage; the bill had been taken as con-1 fessed, by the default of the defendant; and the ordinary decree foreclosing the equity of redemption and directing á - . - t . sale, was about to be entered.

The seventeenth section of the act This hill was filed by the attorney general. Held: that the answer had not admitted the matters stated in the bill, so far as to warrant an injunction upon the ground of admitted facts; and: that it was necessary to determine, whether the injunction ought to be issued,, upon the proof before the court, independently of the answer.