Volume 1 — Paige's Chancery Reports

The bill in this cause was filed against the defendant for an account, as trustee of John Cullen, deceased; James Yan Rensselaer, one of the complainants, being the administrator with the will annexed, and the other complainants the devisees and legatees of Cullen.

<p>As a general rule, a receiver should not be appointed without notice to the parties interested.</p> <p>But this rule is subject to exceptions in special cases, where irreparable injury would be sustained by the delay.</p> <p>So a receiver will be appointed without notice, upon the application of the complainant, where the defendant has absconded, to prevent service of the subpoena to appear and answer the bill: or has left the state, and is not expected to return for several months, and has no residence or place of business where a subpoena can be served.</p> <p>The defendant, however, has a right afterwards, to apply for relief against the order appointing such receiver.</p>

<p>This cause, and the previous proceedings in it, are con-tamed in 4 Cowen’s R. 667, and 1 Hopkins’ R. 576.</p>

On the 10th day of February, 1813, Samuel Howland, then about 86 years of age, conveyed his farm to the defendant, Daniel Howland, his grandson, with whom he expected to reside the remainder of his life; and took back a life lease, at a nominal rent.

James Hewlett, the elder, who died in 1805, devised certain real estate to his widow for life, or during her widowhood; and after her death or marriage, he gave the same to his nephew, James Hewlett, in fee, provided he paid the legacies mentioned in the will.

The defendant in this suit brought an action in a court of law to recover the arrears of an annuity against the complainants as executors of Robert Fulton. The complainants filed their bill in this court, and obtained a decree for a perpetual injunction, restraining Rosevelt from suing or prosecuting any action or suit at law against the complainants or other representatives of Fulton, for the recovery of the annuity. (See the case reported in 5 John.

Selden, for complainant, moved that separate answers of the bank and Leavitt be taken off the files of this court, and that they file a joint answer.

<p>Notice of every application to the court must be given to the opposite party, in case he has appeared, where the motion relates to any matter pending in court, or where a final order is sought, orders for time, and those of a like nature alone excepted; otherwise the applicant or petitioner will only be entitled to an order nisi.</p> <p>And copies of every petition, affidavit, &e., upon which the motion is founded, must be served, together with the notice of the motion.</p> <p>Where an order had been obtained on an ex parte application, that the complainant be admitted to prosecute in forma pauperis, the same was vacated with costs.</p> <p>A party must be an object of charity, otherwise the privilege of prosecuting in forma pauperis, Will not be granted to him.</p> <p>Applications for this privilege afe not encouraged</p>

On the 16th May, 1810, the defendants were severally doing business in the West Indies, and the plaintiffs were merchants at Norfolk, in Virginia. The defendants had private dealings or accounts, and had also a quantity of lumber and provisions belonging to them jointly, which had been recently consigned to Hancock & McCormick, of St. Croix, to be *sold on their joint account.

On the 4th of February, 1814, Slee, the appellant, sold to Frear and Hallowell a house and lot in Poughkeepsie, for $5,000, of which sum they paid down $1,000, and gave him their bond and mortgage on the premises for $4,000, and interest after the 1st of May, 1814, to be paid in four equal annual payments from the last mentioned day, and the interest on the whole sum to be paid annually.

Arnotjx, together with Steinbrenner and De Grroot, was appointed executor and trustee of the will of Benoit Bonichon, deceased. The complainant alone accepted the executorship.

This was a bill filed by the complainant against the defendant for a divorce a vinculo matrimonii, upon the ground of adultery. A feigned issue was awarded to try the charge of adultery, which was tried three times. The first trial resulted in favor of the complainant, the defendant being surprised by an attempt to prove an act of adultery on her part with a person not named in the bill. The two last trials terminated in her favor.

<p>Samuel Leggett, a creditor of the president, directors and company of the Franklin Bank in the city of New York, having on the 29th of May last presented a petition to the court, under the act to prevent fraudulent bankruptcies by incorporated companies, &c., passed April 21st, 1825, setting forth that the company was insolvent, and praying for an injunction and the appointment of a receiver; and the court having directed a temporary injunction to issue, and that said company show why the prayer of the petition should not be granted; and the said company not having shown sufficient cause against the prayer of said petition, it was referred on motion of Mr. O. Hoffman, the counsel for the petitioner, to Thomas Bolton, Esq., one of the masters of this court, to receive from persons interested in the matter, nominations of proper persons to be appointed receiver, and to report to the court the names of the persons so nominated and their respective fitness, and also the names and sufficiency of the persons proposed as sureties; and the said Master having made his report as directed, his honor, the Chancellor, made the following order.</p>

In February, 1825, the ship Point a’ Petre of Bordeaux, laden with cotton and nails, was lost on Carey’s Fort reef, off the coast of Florida. Of the cotton on board, 536 bales were saved from the wreck by other vessels, and carried into Key West, where it was sold under an award of a wrecker’s court, organized at that place; and 76 per cent, of the proceeds was awarded to the salvors. Fisk is a Iona fide purchaser of 140 bales of cotton thus sold.

The bill in this cause stated that the complainants, since 1824, have been and now are the owners and proprietors of certain real estate on Staten Island, on which they have made erections at great expense for manufacturing purposes, and of which they are in the actual and daily occupation and use, for the purposes contemplated in their act of incorporation; that among the erections and improvements connected with that real estate, is a dock and landing of great value and…

<p>An. injunction on coming in of the answer will not he dissolved, unless the defendants positively deny all the equity of the bill. A denial from information and belief is not sufficient.</p> <p>Twenty years, by analogy to the statute of limitations, is the period allowed in Chancery for commencing proceedings to set aside conveyances of real estate on the ground of fraud.</p> <p>Where the complainant suffered three years to elapse without compelling an answer from one of several defendants, and the other defendants in their answer charged collusion between the complainant and the defendant who had not answered; it was held that under such circumstances, the fact that all the defendants had not answered, could not be urged as an objeo tian to the dissolution of an injunction, unless the complainant denied upon affidavit, all collusion, and stated sufficient reasons for not compelling an an answer from all the defendants,</p>

The complainant filed his bill in this cause for relief against an order of the Supreme Court, made in August term, 1827, confirming the report of commissioners of estimate and assessment, in relation to the improvement of Herring street, between Christopher and Amos streets, in the ninth ward of the city of New York.

By the act of the 12th of April, 1816, entitled “An Act for draining the great marsh or swamp on the Canasaraga Creek, in the towns of Sullivan and Lenox, in the county of Madison, and for other purpose,” the proprietors of the lands overflowed by the waters of the Canasaraga Creek, or otherwise called the Great Marsh, are authorized to drain the same by one or more canals or ditches to be cut and opened from the sand marsh or creek by the most direct and Convenient route or…

The complainant applied for. an order that Thomas Brass. a purchaser of the premises in petition, be compelled to complete his purchase. Brass resisted the application, on the ground *that a third person was in possession at the time of the sale, claiming to hold adversely to the title of the complainants; and that the person so in possession is wholly insolvent, and refuses to give up the possession.

On the application of the defendants, Roswell L. Colt was ordered to be examined as a party, before the master, in relation to a claim made by him against the estate of Jacob Le Roy, deceased, in the hands of the defendants. The object of the defendants was to show, that certain entries in the hooks of the partnership were not made previous to the death of Le Roy.

This was a petition for a rehearing, on exceptions to master’s report, disallowing exceptions to third answer of defendant to the amended cross-bill.

Previous to the 3d of January, 1817, the petitioner, Howe, was seized, in his own right, of one undivided fourth part of a certain tract of land in the city of New York; and was also seized in right of his wife, of one other undivided ^fourth part thereof. David Dunham owned one undivided fourth, and the remaining one-fourth belonged to D. D. Tompkins. The share of Tompkins was subjected to the lien of a mortgage given by him to George J. Banks, in October, 1806.

The complainant held a single bill, or sealed note, against T. and J. Hunt, for $2,425, payable to himself, in twelve months from date, with interest, and dated the 27th of September, 1826. On the 19th of October, in the same year, he borrowed of the defendant Mullins, a broker, the sum of $1,000, and pledged the sealed note to secure the repayment, indorsing his name in blank on the note.

In this case, exceptions were taken to the defendant’s answer, some of which, on reference to the master, were allowed, and the others were disallowed. The complainant submitted to the master’s report, but the defendants excepted to so much thereof as allowed a part of the exceptions to their answer. On hearing before the court, the master’s report was confirmed. A question having arisen as to the costs, the questions were submitted to the court.

On the 14th of March, 1798, John Delafield, an insurance broker, and John B. Church, an insurer, in the city of New York, entered into a co-partnership in the business of marine insurance, which partnership was to continue until dissolved by mutual consent, or by a written notice from either of the parties.

This case came before the court for a hearing upon exceptions to a master’s report upon exceptions to the answer. The defendant did not appear before the master on the reference to argue the exceptions to the answer.

The facts in the case, and the reasons for the decree in the court below, are stated in the following opinion delivered by Judge Emott in the Equity Court.

On the 16th July, 1816, John R. Murray and William Ogden, merchants in New York, became insolvent, and stopped payment. At that time, they owed several custom house bonds to the United States, which Major and Gillespie had signed as their sureties. Of those bonds, a part were afterwards paid by Major and Gillespie, and six still remain due and unpaid to the United States.

The plaintiffs as judgment and execution creditors of Samuel Wilson, the elder, filed their bill against him and the other defendants, charging that he had fraudulently transferred his property to the other defendants, seeking a discovery of the fraud, and praying an injunction to restrain them from selling or incumbering the property. To the answer of three of the defendants the plaintiffs excepted, and those exceptions were submitted to.

The complainants’ bill stated, among other things, that the defendant was the only acting executor of Anthony Marshall, late of the city of New York, who died in January, 1811, leaving two daughters, Rosalia, one of the complainants here, and Catherine.

The complainant filed Ms bill, setting forth among other things, the pendency of a suit in his favor against the defendant at law, and praying an injunction and ne exeat Both were granted by the master; but the injunction was *afterwards dissolved by the Chancellor, on'the ground that the complainant was not entitled to an injunction, to stay the defendant from disposing of his property until an execution had been issued and returned unsatisfied.

This was an appeal from the sentence and decree of the surrogate of Kings county. A statement of the case is contained in the opinion of the Chancellor.

On an affidavit that the procMen amy was insolvent, and that the suit had been commenced by him without the knowledge of the infant, a motion was made on the part of the defendant to change the procMen amy, or that all proceedings be stayed until security for costs was given.

*The bill in this cause was filed by one of the defendants to suit of foreclosure, against a co-defendant and others, claiming a part of the surplus moneys arising from a sale of the mortgaged premises. It was heard on exceptions to the report of a master.

The defendants, who were the executors of Fitch Rogers, late of the state of Connecticut, deceased, commenced suits at law in the Superior Court of the city of New-York, against the complainants, on notes given to the testator: which suits *are still pending. The complainants set up an equitable defence to those suits, and the bill in this cause was filed for the purpose of obtaining an injunction to stay the proceedings at law.

In this case the complainant was a judgment and execution creditor of James Dreamer. The defendant had also an older judgment and execution against the same person, and Dreamer had not sufficient property in this state to satisfy both. The defendant had also an assignment of certain real and personal property in New Jersey as collateral security for *his debt, which in his answer, he alleged was subject to a prior mortgage, and that the title thereto was doubtful.

<p>Where a party delayed a year and six months in applying to the Chancellor to correct a mistake made in drawing up a decree, leave to amend the decree was refused.</p> <p>The personal property of a testator must be first exhausted in the payment of his debts, before Ins real estate can be resorted to for that purpose. But where there is a specific lien on the land devised, as in case of a mortgage; or where the land is devised upon the condition of paying the debts: or where the debts are directed to be paid out of the estate devised; in these cases the real estate will be first resorted to, to discharge the debts. So where it is apparent from the will, the testator’s intention was, that the legacies should be paid entire and the debts discharged out of other funds, the court will carry such intention into effect.</p> <p>A judgment is not a specific lien upon the real estate of the debtor.</p> <p>Where the will of the testator contains no directions as to the payment of debts, chattels specifically bequeathed must be applied to the payment of a judgment against a testator before resort is had to the real estate devised.</p> <p>A trustee in the possession of land is required to account to the cestui que trust, not only for the rents and profits actually received, but also for the rents and profits which might have been received.</p>

Oh the 20th of February, 1822, John Russell, the husband of the complainant, was seized in fee of a house and lot in the city of Albany; and being so seized, he, together with the complainant, executed a mortgage thereon to the commissioners of the city stock to secure the payment of $1,000 and interest.

This was a motion for an order requiring the defendants to remove a dam on the Paradox Creek, in the county of Essex, which the complainants alleged had been erected in such a manner as to violate the injunction issued in this cause. The facts sufficiently appear in the opinion of the Chancellor.

*This was a motion founded upon the petition of William C. Gardner for a dissolution or modification of the injunction issued in this cause.

The complainants, as execution creditors of Simeon West, filed their original bill against him and two others, for the purpose of obtaining satisfaction of their debt out of his property which had been placed beyond the reach of their execution.

The complainant filed Ms bill in this cause in October, 1821, setting forth that, in January, 1772, his paternal grandfather owned lot No. 19, in Snyder’s patent, in the town of Hoosiclc; that he was about 60 years old, ignorant and incapable of reading or writing, or of understanding the contents or import of legal conveyances.

In September, 1815, the defendant agreed with the complainant to purchase of him a lot of land in Greenfield, in the county of Saratoga, supposed to contain about 100 acres, being the north part of lot No. 1, in great lot No. 2, in the 22d general allotment of the Kayaderosseras patent, north of and adjoining lands before that time sold by the complainant to William Seymour.

Nicholas Anderson, the testator, gave to the corporation of St. George’s Church, in New York, a legacy of $4,000, in trust that the same should be put out at interest, or vested in public stocks; and that the income thereof should be paid to his housekeeper for life, and after her death, the income thereof to be applied to-the purchase of a church library, the support of a Sabbath school in the church, and other church purposes to which the church contributions may be…

*In March, 1826, the defendants agreed to loan the complainant $20,000 on his note, at 6 per- cent., payable on demand, and for which he was to transfer stock of the Tradesmen’s Bank, as collateral security, to the value of 10 per cent, above the loan, to be determined by the value of such stock.in the market, and upon which stock it was agreed the complainant should have a proxy to vote for directors of the Tradesmen’s Bank, and that no greater sum than $5,000 of the note…

In March, 1827, the complainants filed a bill in this cause against the above-named corporations. They made George W. Brown, the former president, and Matthew Reed, a former director of these companies, parties to obtain a discovery of certain transactions, in which it is alleged they were engaged as such officers. Most of the transactions referred to are previous to September, 1826.

Previous to the year 1802, and while Elisha Kane lived at Albany, he made a contract with J. B. Nichols to sell to him lot No. 82, in Marcellus, and in pursuance of the agreement, Nichols paid to the agent of Kane in Albany, about $1,500 of the purchase-money.

On the 4th of December, 1815, Jacob Tuckerman gave to the defendant Hubbard, a bond and warrant to secure the payment of $1,020 and interest; on which a judgment was entered in the Supreme Court on the 15th of the same month. And by a written agreement of Tuckerman, the execution was to be issued at any time, without the necessity of reviving the judgment by scire facias.

The defendant Abraham, is a British subject, domiciliated in England. In July, 1828, he left that country for the United States, bringing with him 24 cases of paintings, cabinet furniture and merchandize, and arrived in New York about the first of September, when the goods were deposited in the public store, under the charge of the defendant Thompson, as collector of the port.

The complainant filed his bill in this cause on the 21st of December, 1826, setting forth, that in August, 1813, the complainant and his partners, John Stafford and George B. Spencer, who are since dead, together with the defendant, being desirous to raise money, the firm of Staffords & Spencer made a note to Bryan for $11,000, which was indorsed by him and discounted at the Albany Bank, as an accommodation note of Staffords & Spencer.

In this case, J. Sudan, on behalf of the complainants, who were heirs and legatees, moved for the appointment of a receiver upon the ground of the insolvency of the executors of the estate, and of their misapplication of the property in their hands belonging to such estate.

In May, 1822, the defendant bought of the plaintiff a bond and mortgage, for which he paid a part in money, and for the residue amounting to $1,750, he agreed to convey to him 584 acres of land in North Carolina, to be located in contiguous lots as soon as the survey,, which it was alleged was then making, should be completed.

This case came up on exceptions to the master’s certificate of the sufficiency of the examination of the defendants in the master’s office. The object of the examination by the complainant was to ascertain the amount due on account of the proceeds of glass received by the defendants, to be sold on commission.

This was a motion made in behalf of the depositors of money in the Franklin Bank for an order directing the receiver to pay to them the amount of their deposits, before any distribution was made of the funds of the bank among its general creditors.

*This was a petition by the complainant for a rehearing, which stated that the late Chancellor, having been counsel for one of the parties previous to his appointment, the cause was heard before Judge Betts, of the second circuit, sitting for the Chancellor; that a decree was made in favor of the complainant to the whole extent of his claim; that the cause was afterwards reheard before Judge Emott, the successor of Judge Betts, when the decree was reversed as to the…

G. Griffin, on behalf of a majority of the directors and stockholders of the Niagara Insurance Company, moved for a decree to dissolve the corporation, under the Act to provide for the dissolution of incorporated insurance companies in the city of New York, passed April 5th, 1817. He contended that public policy was not one' of the grounds put forth in the statute as a cause either for or againsta dissolution.

This was a motion on the part of the defendant to dissolve the injunction and ne exeat issued in this cause; and the complainant applied for the appointment of a receiver, and for a monthly allowance out of the estate of her husband, for the support of herself and children during the litigation. The facts upon which the motions were founded appeared in the opinion of the Chancellor.

On the 14th of November, 1809, Caleb Pell and Martha his wife were the owners of a farm in Westchester county, containing about 201 acres; and on that day, by an instrument in writing, signed, sealed and acknowledged in due form of law to pass the real estate of a feme covert, granted, bargained and sold to E. Pugsley the farm, to have and to hold the same to the said E. Pugsley, her executors, administrators and assigns, for and during the term of one year, yielding and…

The complainant and Mariena Pritehard were the joint owners of a house and lot in Greenwich street, in the city of New York, on which the complainant, with her assent, had given a mortgage to Kinlock Stewart. The complainant also owed to George Shevill on a note about $100, and to the estate of Colonel William Jones about $150, on a note given to him before his death.

The bill was filed in this cause by-the complainant against the defendant, her husband, for a divorce, upon the ground of adultery. A verdict had been rendered in favor of the complainant on the feigned issue awarded to try the fact of adultery. The only question on the hearing was as to the amount of alimony to be allowed to the complainant. It appeared from the proofs that the complainant had been guilty of indiscretions, and had not been a dutiful and submissive wife.

The complainant filed a bill against his wife, complaining of cruel and inhuman treatment, &c., and praying a divorce, a mensa et tlioro.

This was an appeal from the equity court of the first circuit.

In August, 1808, E. Boylston, being the owner of 16 acres of land in Manlius, mortgaged the same to the commissioners for loaning moneys in the county of Onondaga. He afterwards *conveyed the land in fee to T. Dimick, who, on the 28th of April, 1818, conveyed the same to the complainant in fee with warranty.

The complainants, as mortgagees of certain premises in the city of New York, filed their bill in this cause against the mortgagor and several junior incumbrancers, and also against the Eagle Eire Company of New York, as prior mortgagees of the same premises.

<p>In this suit, a bill of discovery was filed to aid the defence to an action at law brought against the complainants in the Superior Court of Fairfield County, in the state of Connecticut, at the suit of the defendant Smith, who is a resident of this state. To this bill, the defendant interposed a plea to the jurisdiction of the court; alleging that by the laws of Connecticut, the Superior Court, on a bill in equity brought and presented there, can compel and enforce from a plaintiff in a suit at law a discovery and foreclosure, on oath, of the matters charged in such bill, to be used as evidence in the suit at law.</p>

Aikin, having obtained judgment against Southwick, Ten Eyck, sheriff of Albany County, being indemnified by Aikin, levied on the property of the defendants, and sold it as the property of Southwick, under a fi. fa. in favor of Aikin. The defendants sued Ten Eyck in the Supreme Court for the trespass, and recovered, in October, 1827, $500.

This was a bill for a distributive share of the estate of the late Bishop Connolly.

This was a motion to dissolve an injunction on bill and answer. A difficulty having arisen between the parties relative to the contract for building the Arcade, in the city of New York, they submitted the same to arbitrators, and agreed that the submission should be made a rule of the Court of Common Pleas in that city.

The defendants Strong and Bovee were indebted to the complainants and others on various notes, on which the defendant Pittman was the indorser. They also owed him $680, for money borrowed. In August, 1828, Strong and Bovee failed, and to secure Pittman, as their indorser and pay the money lent, they assigned to him a great number of demands against different individuals to a large amount.

*This was a motion on behalf of the complainant for leave to discontinue this suit without costs, upon the ground that he had probable cause for commencing it, and that he had, since that time, sold the property which was the whole subject matter of the controversy in this suit.

<p>On the first of October, 1828, bills were filed in these causes, calling upon the defendant for an account and satisfaction of the proceeds of the sales of certain goods assigned to him by the complainants respectively, as their agent or factor, to be sold. On the bill and the petition presented therewith, the injunction master allowed a ne exeat. On the fourth of October the defendant was discharged by the recorder of New York, under the non-imprisonment act; and on the same day, and after the discharge, the defendant was arrested on the ne exeat, and compelled to give bail thereon. Upon an affidavit of these facts, the defendant’s counsel moved to discharge the writs of ne exeat. The motion was opposed upon an affidavit that a certiorari had been allowed by one of the justices of the Supreme Court, for the purpose of reversing the discharge of the recorder, and that the defendant had not answered, but had procured orders, for further time.</p>

The bill in this cause charged the defendant with having fraudulently overdrawn the banks of the complainants, and that the identical bills obtained from those banks had been deposited by him in the Branch Bank of the United States in the city of New York, where they still remained to his credit on the books of that institution.

In July, 1825, B. 0. Burdett gave to the complainant a note for a bona fide debt. A judgment was obtained thereon in the Supreme Court in May, 1826, and a fieri facias was issued to the sheriff of New York, returnable on the 13th of the same month. The sheriff returned the execution unsatisfied. The bill in this cause was filed after the return day of the execution, but before the writ was actually returned and filed in the clerk’s office.

This was a motion to dissolve an injunction upon bill and answer. Brown and Reed, two former officers of the New York and Sharon Canal Company, were made defendants for the sake of discovery merely.

The defendant Field, a merchant in Marcellus, applied to the complainants at New York, to purchase a quantity of goods on credit. They were unwilling to let the goods go on his individual credit, but consented to put up the goods and ^forward them to him at Marcellus, he engaging, on his return home, to send them his notes, indorsed by Bixby and Chapman, for the amount.

<p>A promissory note or a bond is a proper subject of a gift, causa mortis; and the delivery may be to a third person for the use of the intended donee.</p> <p>But claims of this kind are admitted with great caution; and where some doubt was thrown on the transaction, a feigned issue was awarded.</p>

The complainant purchased from Jonah Phelps a piece of land in Columbia county, for which he afterwards paid the full amount of the purchase-money. While the complainant was in treaty for the purchase, the defendant Wise, a grandson of Phelps, obtained from the latter a judgment bond for $425, which he caused to be entered up in the Supreme Court before the deed upon the sale was executed. He *afberwards assigned the judgment, or part thereof, to the defendant Ford.

The defendant Furniss purchased a quantity of goods at auction of the complainants on the 5th of September, 1828, to be paid for in indorsed notes. The goods were sent home according to the custom on such sales at New York. A few days after the sale, one of the complainants called for the notes, but they were not ready.

*This was an application to vacate an order for costs, and an order for an attachment, and for a retaxation. The facts in the case sufficiently appear in the opinion of the court.

In October, 1826, the complainant, being possessed of a considerable real estate, gave the defendants, Hand and Kenyon, a judgment bond, in the penal sum of $10,000, conditioned to pay $5,000, on which a judgment was forthwith entered in the Supreme Court. The object of that judgment was to secure them for advances and responsibilities which they had incurred, or might thereafter incur for the complainant.

This was a bill filed by executors against the devisees and legatees to settle the construction of the will, and of the various bequests contained therein.

This was an appeal from the decree of the surrogate oi the city and county of New York, establishing an unexecuted paper propounded by the respondents as the will of John Gr. Leake. The father of the decedant was a British officer, who came to this country about sixty years since, with his two sons, Robert W. and John Gr., and died in the city of New York, in 1774. He had one daughter, who died before her father, and without issue.

<p>This cause was submitted on bill and demurrer. The facts are sufficiently stated in the opinion of the court.</p>

In January, 1823, S. Yanderheyden, deceased, and the plaintiff Blake, entered into a written agreement, by which the latter agreed to sell to the former a farm in Saratoga for $6,000.

This was an appeal from an interlocutory order of the Equity Court of the eighth circuit, ordering a conditional dissolution of an injunction. Held: that as the time for appealing was regulated by a rule of this court, the rule might be dispensed with, and the time enlarged on sufficient cause being shown; and that this court alone had the power to dispense with the rule, and give relief in such a case.

The defendant, Garret Abeel, and his brother John, were partners in the hardware business in the city of New York, for several years previous to the death of the latter, which took place in the spring of 1811.

This was a case on exceptions to a master’s report on exceptions to an answer. The facts appear in the opinion of the court.

<p>By the will of John Cook, who died in 1804, he devised to his wife, during her life or widowhood, the possession of all his estate real and personal. And after her death he devised the same in fee to his sons John and Henry, in separate and distinct parcels, provided they should pay certain legacies to the complainant and others. In 1815, Henry and his mother sold and conveyed to J. Vosburgh, with warranty, all the lands devised to him by the will, for the consideration of $3,000. In 1819, the complainant, Casper J. Cook, and the other legatees, filed a bill in this court against the devisees and the purchasers under them, setting forth a payment of part of the legacies, and praying that the devisees and purchasers might pay the residue, or in default thereof that the lands might be sold to pay the same. That bill was taken pro confessa against the several defendants therein, by the consent of some, and by the default of the others ; and a reference was made to a master to ascertain the amount due to the legatees. On the coming in of the master’s report, a final decree was entered in the cause, directing all the devised premises to be sold, subject to the life estate of the mother of the devisees, and that the costs of the suit and balance of the legacies be paid out of the proceeds; and that the residue of the purchase-money, if any there should be, remain in court to abide the future order thereof. Under that decree the complainant bid in all the lands for $200, which was but little more than sufficient to pay the costs; leaving nearly $2,000 still due to the legatees. He afterwards obtained assignments of the interest of all the other legatees. After the death of Henry J. Cook, and more than six years after the sale, he filed his bill in this cause against the administrator, claiming the balance unpaid on the legacies to be a personal charge against Henry J. Cook, and that he was entitled to a preference in payment out of the estate, on the ground of the decree in the first suit.</p> <p>The administrator put in an answer, referring the complainant to such proof as he could make of his case, and leaving *his rights to the determination of the court. The cause was submitted on pleadings and proofs.</p>

On the first of November, 1802, Joel Evans leased to James Cross a piece of land in the city of New York for the term of twenty years and six months, at a quarter yearly rent. The lessor covenanted with the lessee and his assigns that he or they might, at any time within thirty days after the expiration of the lease, remove from the premises all buildings erected thereon during the said term.

Several of the general legatees of Mrs. Williams brought separate suits against the executors to recover the amount of their legacies. The estate being insufficient to satisfy the whole, the defendant applied to have the proceedings in this suit stayed, and that the complainants come in under the decree obtained in one- of the other suits which was subsequently commenced.

On a bill to forclose a mortgage executed by husband and wife, the subpoena was served on the husband only, the wife residing in France. The husband entered an appearance for himself, and filed a separate answer. A solicitor appeared for the wife separately, and the plaintiff served him with a copy of the bill, but no answer for her had been put in.

This was a motion to quash an appeal from a decree of the surrogate of Columbia. The final sentence was pronounced and entered in the records of the surrogate on the 9th of December, 1828. On the 18th of the same month a copy thereof was served on the appellants by the proctor for the respondents, and payment was demanded of the amount decreed to be paid. The appeal was not entered until the 17th of January, 1829.

This was an application to amend an injunction bill without prejudice to the injunction. The grounds on which the application was denied, appear in the opinion of the Chancellor.

This bill was filed against the personal representatives of E. Rodgers, deceased, to restrain proceedings at law on notes given to the testator. The equity of the bill on which the injunction was granted was not charged to be in the knowledge of the defendants; and they put in an answer denying all knowledge or belief as to the principal facts on which it rested.

This cause was heard on exceptions to the master’s report allowing exceptions to an answer for insufficiency. The facts on which the case was decided, appear in the opinion of the court.

This was a petition on the part of the defendants for leave to open the proof and re-examine one of the complainants’ witnesses, upon the ground that new facts had been discovered on his cross-examination in a court of law, since the testimony in the suit was closed. The defence was usury,

H. Mactier was a commission merchant in New York, and died about the 10th of April, 1823. The complainant is a resident at Jacmel, in the republic of Hayti. He filed his bill in this cause against the administrators of Mactier, claiming a certain shipment of brandy, a part of which had been sold by Mactier in his life time, and the residue by the defendants.

The petitioner stated that he was public administrator of the city of New York; that he had an account in the Franklin Bank, as public administrator; that he always had an interest personally in the moneys deposited to his credit in that account, and frequently, for convenience and safety, deposited money to that account which did not belong to him as public administrator; that on the morning on which the bank stopped payment, he drew out from the bank, on his account as…

The complainants are the owners of certain mills and mill privileges on the lower falls at Ticonderoga, on the north side of the outlet of Lake George; and the defendants own mills and mill privileges on the south side of the same stream. There is an island in the middle of the outlet, and the main current of the stream naturally runs on the north side of the island.

This was a bill of foreclosure. At the last term of this court a regular decree was entered in this cause, referring it to a master to compute the amount due to the complainant on his bond and mortgage, and for a sale of the premises on the coming in and confirmation of the master’s report. W. S. Johnson, who had appeared in the cause, had regular notice of the proceedings before the master, and the report was confirmed.

<p>Where a suit was commenced in this court in consequence of an inequitable defence interposed to a suit at law for the same cause of action, the court refused to compel the complainant to elect in which suit he would proceed, as long as no attempt was made to prosecute the suit at law.</p>

In 1820, George Duffy, a resident at Philadelphia, being possessed of real and personal property there, died intestate and without issue, leaving his widow and a brother and sister of the full blood, and one brother and two. sisters of the half blood, him surviving.

This was a contest relative to a mill site and mill privileges in the town of Danube. The mills are situated on lot No. 17, and the water which supplies them comes from a spring on lot No. 18 in McNeil’s patent. On the 4th of October, 1803, the title to lot No. 18 was in Jacob Conklin.

In 1813, the defendant John Leonard purchased of J. T. Pitney 235 acres of land on the west end of lot No. 4, in Ovid, and went into possession thereof. In 1816, he purchased other 235 acres of the complainant, in the same lot adjoining the first purchase, for $3,800, and gave back a bond and mortgage for the purchase-money.

In this case the wife, by her next friend, filed a bill against her husband to secure an equitable allowance out of two bonds and mortgages and certain stocks bequeathed to her by her father. The husband being a lunatic, the biR also prayed that a committee of his person and estate might be appointed by the court. The husband put in his answer by a guardian ad litem, appointed by the court for that purpose, and the facts were ascertained by a reference to a master.

The original bill filed in this cause was for the foreclosure of a mortgage given by the defendant Platt, which was a lien upon his hands only, he being by the terms of the mortgage expressly exempted from personal liability for the debt. After the filing of the bill, Platt conveyed the premises to Anderson, and set up that conveyance in his answer, and in a cross bill to defeat the foreclosure.

The defendants were the bail of S. W. Hughes, late sheriff of Cayuga, who collected the amount of an execution in behalf of the complainants, and died before the money was paid over. No person administered on the estate of the sheriff, and the bill in this cause was filed to compel the bail to pay the amount collected by the sheriff. The defendants demurred to the bill for want of equity.

The complainants filed a bill for partition'in this cause, setting forth, among other things, that the share of the defendant was incumbered by two legacies or annuities charged thereupon, and by a judgment and a mortgage; and that the premises were so situated that a partition thereof could not be made without a sale, and praying a sale of the premises and division of the money, deducting from the share of the defendant the amount of the incumbrances.

The bill in this cause was filed to set aside a judgment entered upon a bond and warrant of attorney given by the intestate to the defendant. The whole equity of the bill was denied by the answer; but the complainant proceeded to take testimony, and the cause was heard on pleadings and proofs.

*In October, 1795, Jonathan Green was in possession by his tenant of forty acres of land, in the manor of Rensselaerwick, which he claimed to have purchased from J. Odell; but the legal title was then supposed to be either in Odell or S. Van Rensselaer.

The bill in this case was filed to foreclose a mortgage given in 1803, which had been due more than twenty years. One of the defendants was the purchaser of the equity of redemption, and the others were the judgment creditors of such purchaser. They alleged, in their answers, that the mortgage was paid, and insisted upon the lapse of time as evidence of such payment.

This was a suit brought in the name of infants, by their guardian, to recover the amount belonging to them in the hands of the executors of their grand-father. The facts upon which the decree was founded appear in the opinion of the court.

The complainants are legatees under the will of Gloriana Franklin, who died in 1804.

The bill in this cause was filed to obtain partition of certain real estate in the city of New York, an undivided share of which belonged to W. S. Sears in right of his wife, who is an infant and the residue belonged to the defendants. The whole premises were subject to a mortgage executed by Gr.

In January, 1818, James Gardner and Charlotte Ms wife were appointed by the surrogate of New York guardians of the persons and estates of Malvina Gardner and John Gardner, two infants. Malvina is now about Mneteen years of age and is married to Eugene Kettietas, and John is about seventeen years of age.

<p>A petition for leave to traverse the inquisition in this case was presented, in which J. B. Scoles appeared as solicitor. An issue was directed, and the finding by the inquest was confirmed. The solicitor applied for an order that the committee pay his costs and expenses, as between solicitor and client, out of the estate. He stated that he had only received about $20 or $25. By the affidavits on the part of the committee, it appeared that deeds from Van Cott to the solicitor *and to S. S. Johnson were overreached by the finding of the jury, and that the issue was in fact for their benefit.</p>

This wasu petition presented by the complainants, stating that the answer of the defendant had been put in, and that they were anxious to bring the cause to a hearing upon bill and answer, but it was necessary for them to prove the issuing and return of an execution of which the defendant in his answer denied all knowledge; and they asked leave to prove it at the hearing without filing a replication.

The parties to this suit all reside in the city of New York. On the 7th of August, 1826, the defendant Haley finding himself insolvent, gave to Turner a judgment bond to secure a real or pretended debt of $3,000, on which a judgment was immediately entered and an execution issued to the sheriff of New York. Turner took possession of Haley’s store and the goods on hand.

This was a bill for the partition of a certain mill property-in the county of Columbia, which formerly belonged to George Harder deceased. The complainant, Rebecca Squires, was one of Harder’s children; and his widow and other children were the defendants.

Upon the application of some of the relatives of Jacob Arnhout, a commission in the nature of a writ de lunático inquirendo was issued, to inquire whether he was, by reason of habitual drunkenness, incapable of managing his own ajfgjjg. The jury summoned in the first instance could not agree in finding an inquisition in favor of such allegation, and after remaining together some time were discharged.

Hr July, 1815, the defendants, C. & W. W. Williams purchased of L. Kingsbury a farm in the county of Madison, and gave to him their negotiable note for a portion of the purchase-money. He sold the note to the complainant, who afterwards negotiated it to J. & W. M. Burr; and the note not being paid when it fell due, the complainant was duly charged as indorser thereof.

The defendants being the executrix and executors of the will of the complainant’s father, were required by the will to pay to the complainant annually $200, and also one-fifth of the testator’s estate, in case the complainant should refrain from vicious habits, and conduct himself with sobriety and good morals.

In this case the court on a previous day had granted an injunction against the Bank of Columbia, upon the application of the attorney-general, and had made an order for the appointment of a receiver to tajee charge of its property and effects, and had referred it to a master to receive nominations of suitable persons as receiver, and to report as to the competency of the persons named and the sufficiency of the sureties offered by them respectively.

This was an appeal from the decree of the Equity Court of the third circuit, on a bill filed by Lee against the respondents, and a cross bill filed by them against Lee in that court. Stoddard Smith, the son in law of the appellant, was formerly the owner of a farm in the town of Greenville in the county of Greene. He, together with the respondent Hallenbeck, were the commissioners of loans for that county under the act of 1808.

About twenty years since, John Wilber, of the county of Otsego, made his will, and appointed his son John, and A. Olmstead, D. Fuller andT. Murphy his executors. The testator died soon after, and the will was proved by the executors ^before the surrogate of Otsego. Fuller died in 1815, intestate, and his widow administered on his estate.

The complainant being embarrassed with debts and executions, applied to the defendant for a loan of $800. The defendant refused to lend him the money unless he would consent to purchase from him 124 acres of wild land, in the north part of Montgomery County, for the sum of $550. The complainant „at first hesitated, but finally consented to take the loan on these terms.

The bill in this cause was filed to restrain the defendants from selling two lots of the complainants, which had been assessed for a share of the expenses of regulating and improving Lombardy street, between Clinton and Walnut streets, in the city of New York, under the 175 th section of the act to reduce several laws relating particularly to the city of New York, into one act.

The appellant applied to the surrogate of Westchester for probate of the will of Martha Williams deceased; and the same being contested, the surrogate pronounced against the validity of the will. From this sentence of the surrogate the executor appealed to this court.

Blausius Moore was the owner of certain premises, which were mortgaged to the complainant in November, 1825. *Moore was indebted to the Hudson Insurance Company in about the sum of $4,000; and in order to secure this amount, among other securities, he gave to Mark Spencer, the president of that company, an absolute deed of five-sixths of the mortgaged premises. This deed was dated in 1826, but left blank as to the day and month.

This cause was heard on exceptions to a master’s report on exceptions to the answer of Van Duzen for insufficiency. The master reported the answer insufficient in the matter of the 1st, 2d, 10th, 11th and 12th exceptions. The report was excepted to in these particulars; and the exceptions were submitted without argument. The facts sufficiently appear in the opinion of the Chancellor.

The bill in this cause was filed to foreclose a mortgage given to the complainants. The mortgagor and some junior incumbrances were made defendants. Some of the junior incumbrancers appeared and answered; but before any decree was made in this cause, the mortgagor paid to the complainants the amount due them and costs. The junior incumbrancers who have answered how claim the right to have the suit continued to enable them to obtain their costs.

<p>This was a creditor’s bill, against the heirs and personal representatives of Dennis Doyle deceased, and was filed in April, 1827; and an injunction obtained restraining the defendants from disposing of or intermeddling with the estate of the intestate, or the proceeds thereof. After the service of this injunction, O’Connor, one of the administrators, who held a note against the intestate, brought a suit thereon against the infant heirs of Doyle, in the New York Common Pleas. The writ was served upon three out of the five heirs. John Doe, a fictitious person, was appointed the guardian ad litem of these three. And judgment was entered *against all the defendants, in like manner as upon a proceeding against joint debtors under the statute. This judgment was for $471 80, and was docketed on the 3d of July, 1827. Dennis McCarty, another of the administrators, also brought a suit, in his own name, against the heirs, and obtained a judgment in the same way for $122 31; which was docketed on the 18th of September, 1827. Patrick Barry, a creditor, also brought a suit and obtained a judgment in the same way for $599 59, which was docketed the 21st of September, 1827. John McDonough also brought a similar suit and obtained judgment in the same court for $130 69. He then brought an action of debt on that judgment in the Supreme Court, and recovered a new judgment thereon, which was docketed in May, 1828. The testator at his death was the equitable owner of a tract of land at Bloomingdale, subject to a mortgage to the Eagle Eire Company. That mortgage has since been foreclosed, and the surplus proceeds of the sale of the premises, amounting to $2,202 85, have been paid into court, where they now remain. The complainant presented his petition, setting forth, among other things, that the judgments were not all justly due, and praying that the surplus moneys might be invested to abide the further order of the court, and that the same should not be paid out to the judgment creditors.</p>

John Hathorn died in 1824, leaving five children: Jane the complainant, and Mrs. Grustin by his first wife, and Mary Fergus Anthony and Robert Bruce, by his second wife, who is now Mrs. Baldwin. After the death of his first wife he purchased six lots in the city of New York, and took a deed therefor in his own name.

The object of this bill was to review a decree of this court for errors alleged to be apparent on the face of the record. It was filed without leave of the court, and without making any deposit. Within the time allowed by law for appealing from a decree, a subpoena was taken out, and a bona fide attempt made to serve it. But it was not in fact served until after the expiration of the five years.

The complainants filed a bill in this suit for a divorce upon the ground of adultery, and obtained an injunction, a ne exeat, and the appointment of a receiver; and also an order for a monthly allowance pending the litigation. (Ante, 261.) The husband was unable to procure bail on the ne exeat; and the wife, without the consent of her solicitor, compromised the suit, on receiving security from the husband for a monthly allowance for her support.

Christopher Hughes died seized in fee of lot No. 16 in Rose street, in the city of New York. By his will, made in 1807, he gave to his wife, the defendant, certain personal *property, and one-third of this lot, for life in lieu of dower. The residue of his property he devised to his executors in trust. His daughter Maria H. Williamson purchased the lot from the executors, and took a conveyance of the same subject to the life estate of her mother in one-third of the premises.

The complainant excepted to the answer of D. R. and A. F. Dunham for insufficiency; and the exceptions were sustained. These defendants then put in a further answer, in March, 1829, and in May term thereafter moved to dismiss the bill for want of prosecution. On that application the complainant obtained leave to amend upon payment of costs. He thereupon amended his bill by leaving out the names of these defendants entirely.

The defendant Mrs. Herring is tenant in dower of 175 acres of land on Shelter Island, upon which there is a dwelling-house which she occupies. There is also a small-house on the premises which she holds under a lease from a former owner of the farm. This house is occupied by the defendant Hempstead, who works the farm for her. She hi aims the right to take reasonable firewood from the premises not only to supply herself but Hempstead also.

The complainant in this cause had obtained an injunetian to stay a trial at law on making the usual deposit. On the coming in of the answer the injunction was dissolved.

This was an application for a rehearing. The object of the suit was to set aside a conveyance to La Farge, for about *36,000 acres of land in Jefferson county, made by Rottiers as the agent of the complainants, on the ground of fraud between the purchaser and agent. The cause was brought to a hearing at the last May term; and the opening counsel consumed nearly three days in reading and commenting on the pleadings and proofs.

The case came before the court upon an exception taken by the defendant Warner, to the report of the master, as to the priority of the liens of several defendants upon a surplus raised on a mortgage sale. In 1819, Weeks was the indorser for Whiting, the owner of the equity of redemption *who gave him a judgment for his indemnity.

Some time during the last winter a commission in the nature of a writ de lunático inquirendo was issued, upon which Anson Tracy was found to be incapable of conducting his affairs in consequence of habitual drunkenness.

Severyn Bruyn was the cashier of the Kingston branch of the Middle District Bank, and at the time the bank stopped payment he was a depositor to the amount of $105, and was allowed an annual salary, out of which he was to pay his own clerk, and was also to furnish a banking room for the accommodation of the bank.

The receiver of the Middle District Bank submitted a variety of questions to the court, for instructions thereon relative to the discharge of his duties, on wMch the following directions were given:

This was a bill filed by a stockholder against the Greenwieh Fire Insurance Company and some of its former directors. It alleged that the directors had violated their trust; that the corporation was virtually dissolved; that it had no office or place of business; and that it had no officers to attend to its concerns. The bill had been taken pro confessa against the company, upon a special service and publication of notice, in pursuance of an order of the court,

This was an application for leave to defend in forma pauperis. The defendant commenced a suit at law against the complainants, whereupon they filed a bill in this cause and obtained an injunction staying the suit at law. Excep tians were taken to the defendant’s answer, which, on reference thereof, were allowed by the master. In addition to the application for leave to defend in forma pauperis, the defendant asked to be excused from payment of the costs on the exceptions.

By the act of March 6th, 1807, entitled “ An act to raise moneys to drain the drowned lands in the county of Orange,” three inspectors were appointed to determine the number of acres of land… Held: but the old commissioners continued to act. Many attempts had been made, and about forty thousand dollars had been expended from time to time in endeavoring *to drain the drowned lands by the bed of the Wall Kill, but without success.

On the 19th of August, 1829, an order of this court was made directing a habeas corpus to be issued to the sheriff of New York to bring up the body of Isaac L. Eap, then in his custody, under an order of commitment made by Thomas Bolton, a master in Chancery; which writ was thereupon issued, returnable in this court on Tuesday the 25th of August, at the capítol in the city of Albany.

The bill in this cause was filed by judgment creditors of H. Y. D. Yan Epps, one of the defendants, after their fi.fa. against him had been returned unsatisfied, for the purpose of reaching a fund in court alleged to have been fraudulently assigned by him to the other defendant.

The intestate, Gr. Riker, was the testamentary guardian of the complainant, Phebe Ann Wood, and the surviving executor of her father’s will. Her share of the estate was to be paid when she became of age, or was married. Previous to her marriage, the guardian received $500 in satisfaction for an assault committed upon her. She married Wood in 1819, and became of age in July, 1821.

This was an appeal from the decree of the equity court of the eighth circuit. Wells, assigned to Brockway a land contract, to secure the payment of $97 98. The assignment contained a condition that if Wells paid Brockway $25 on the first of February, 1821 and $72 98 on the 21st of November thereafter, the latter should re-assign the contract to *Wells, otherwise not; A part of the amount was paid within the specified time, but a part thereof remained unpaid.

Caroline M. Dunscomb, one of the defendants in the last suit, and wife of one of the complainants in the first suit, who is also a defendant in the last cause, presented her petition setting forth that a share of the fund in the hands of the receiver belonged to her as one of the children of J. P. Mumford deceased.

The complainant filed a bill in this cause to set aside an assignment made by the defendant, who was insolvent, as fraudulent. After the defendant had put in answer, the bill was dismissed, with costs for want of prosecution. The complainant then applied to set off a note which he held against the defendant, and which by his answer he had admitted to be due, against the costs taxed in this suit.

In this cause the bill of the complainant had been dismissed with costs; and the complainant had suspended the proceedings to collect the costs by an appeal to the Court of Error.

On taking the account as directed by the decree in this cause, (ante, 393,) (x. B. Abeel, one of the defendants, was examined on interrogatories before the master. The ex- ' animation was excepted to for insufficiency, and upon the reference two out of five of the exceptions were allowed. The complainants thereupon applied for a confirmation of the report, and for other directions as to the practice to be pursued to compel a further examination.

William Adams by his will devised the use of his farm to his son, the husband of the complainant, and to his nephew for the term of three years. He directed his executors, at the expiration of that time and as soon thereafter as could conveniently be done, to sell the farm and divide the avails among his five children.

A bill for partition was filed in this cause, and the only question between the parties was as to the extent of the dower right of the widow of D. Dunham in the premises. J. H. Maxwell was the former owner of the premises, and his right thereto was sold upon execution in his lifetime, and two-thirds thereof became vested in D. Dunham, and the other third in Osborn. D. Dunham died in the lifetime of Maxwell.

The complainants recovered judgment against the defendants in the Supreme Court for $3,945 59, and issued a fieri facias thereon to the sheriff of the city and county of New York, where the defendants were arrested and where they still resided.

G. C. Tboup presented the petition of the defendant Gillelan setting forth among other things that the complainants were insolvent, and that this suit was carried on for the benefit of the assignees to whom the subject matter of the controversy had been assigned; and praying that security for the costs might be given by the complainants or the assignees. He cited Ketchum & Blake v. Clarke, (4 Johns. Rep. 484,) and Waring v. Baret, (2 Cowen’s Rep. 460.)

The complainant after excepting to the answer in this case, for insufficiency in divers particulars which were specified in the usual manner, and under the rule of May, 1829, (the same as new rule 53,) added the following exception for impertinence: “ The said separate answer of the said defendant is impertinent in setting forth at full length divers letters and other documents, and in stating arguments and recitals instead of facts.” The master decided this exception was…

The complainant obtained a rule to produce witnesses in 40 days, and served notice thereof on the agent of the defendants’ solicitor. Previous to the' expiration of the 40 days, the complainant’s solicitor, upon an affidavit stating that he had not been able to examine his witnesses, applied for an extension of the time.

<p>Where a party is in contempt, the court will not grant an application in his favor, which is not a matter of strict right.</p> <p>If he applies to the court for a favor, it will only be granted on condition that he purges his contempt, by complying with the former order of the court.</p>

<p>An order to examine a complainant, as to any payments received by him where the defendant is either absent, concealed or a non-resident, is a common order; but an order for leave to examine a complainant in his own favor can only be obtained upon a special application.</p>

<p>Where only part of the money secured by a mortgage is due, and the bill is taken as confessed, the reference to ascertain whether the premises can be sold in parcels is a common order.</p>