Volume 1 — Saratoga Chancery Sentinel

<p> Assignment and confession of judgment for benefit of creditors, by debtor arrested for fraud, set aside as fraudulent android. </p>

<p> Creditors’ MU—Mere denial of property no defense to appointment of receiver—Cannot reach salary not yet due. </p>

<p>Mortgage to secure purchase money—Foreclosure — Vendor’s failure to perform promises, thereby rendering land of little value, a defense.</p>

<p>Witness—After bill dismissed defendant cannot be examined as party—Creditors’ Mil— Wife of defendant cannot be examined as witness to discover husband's prroperty.</p>

<p> Receiver—Improperly interfering with rights of third persons—Power of court—Two proceedings against Mm for same act not allowed. </p>

<p> Pleading—Allegation in answer that defendant believes his character to be better than complainant’s, scandalous. </p>

<p> Entitling papers—Not necessary to set out names of all parties at length—Defendant directed to deliver property to receiver—Proper course where master decides wrongly as to what property to be delivered—Delivery of property in possession of third persons not directed until receivership extended to them. </p>

<p>Mortgage foreclosure—Receiver appointed only where party in possession—Possession of tenant not disturbed—Direction to attorn to receiver— To authorise receiver, premises must be insufficient and mortgagor irresponsible.</p>

<p>Pleading — Amendment of bill after answer— Further answer proper—Upon mere formal amendment requiring no further answer, costs of further answer not allowed—Costs of entire new defense abide event of suit—Written notice that further answer waived—Neglect to answer further within proper time, former answer will stand to amended bill—Reply within ten days— Usual order entered if further answer desired—Right to file replication.</p>

<p>Habitual drunkard—Affida vit required showing necessity of increased allowance for expense of obtaining com mission—Nothing beyond taxable costs and disbursements allowed—Solicitor or counselor should always be one of the commissioners—Charge for counsel fee upon executing commission not allowable—Traveling expenses of solicitor not taxable—Retaining fee not allowed—Nor charge for drawing and engrossing return, panel of jurors, sheriff’s return, venire, oaths, etc.—Notice of execution . of commission taxed by folio—Affidavit of - identity of icife unnecessary—Counsel fee— Charge for drawing bill of costs—Jury fee.</p>

<p> Costs—Sworn services of counsel allowed—Expenses for obtaining further time to answer not taxable—Costs of necessary part of further answer allowed—Lists of witnesses—Solicitor of several defendants not entitled to several bills of costs—New defendants brought in by amendment; costs of , taxable—Costs of appeal taxed in separate bill. </p>

<p> Mortgage foreclosure—Failure to slate whether proceedings had at law a ground of demurrer —If judgment recovered remedy at law must : he shown to be exhausted—Effect of false statement that no judgment recovered. </p>

<p>Mortgage foreclosure—Reference as to surplus moneys—Master should require proof that no notice of claim filed—-Claimants to be summoned to attend—Neglect to file claim before order of reference—Effect—Claimant to swear to justice of claim—Proceedings ex parte— Orders for confirmation and payment of surplus made together—Otherwise in other cases.</p>

<p> Pleading—Bill relating to separate estate of wife to he filed by next friend—Failure no ground for dissolution of injunction. </p>

<p> Banking—Bills pledged as security for debt considered as issued and in circulation. </p>

<p> Reference—Application to take prosecution of, from complainants solicitor—Practice—Evidence of want of due diligence—Complainant entitled to notice of what evidence to be used against him. </p>

<p>■ Executors— One of several executors cannot transfer title to a bond and mortgage given to them to secure payment of the purchase money of ■ real estate of the testator—Otherwise as to securities given to testator,</p>

<p> Judgment not a lien upon interest in a land contract, </p>

<p> Practice—Objection that complainant had perfect remedy at law not available at hearing—Answer—Prayer that defendant may have same benefit as if he had demurred not sufficient to designate what objection is to be irisisted on. </p>

<p> Executors—After sale of real estate to pay debts under order of surrogate, account of newly discovered debts necessary to obtain new order. </p>

<p>Foreclosure—Hule 13.'/. gives right to final decree only where hill taken as confessed or allegations admitted—Includes case of infant—-Case not in readiness for final decree sipón disallowance of plea or demurrer—Merits of plea o-r demurrer not decided upon special motion— Except those which are frivolous.</p>

<p> Taxes—Bunds in possession of court—Court cannot be taxed therefor—Trustee owner for purposes of taxation. </p>

<p> Creditors’ hill—Need not he filed in circuit in which defendant resides—Proper circuit for - filing hill determined,. </p>

<p> Witness—Not compelled to attend upon master at greater distance than Ifi miles from their place of residence,except under special circumstances </p>

<p> Mortgage foreclosure—Assignor who 7ms guaranteed collection, or Ms personal representatives, may be made parties defendant—Execution cannot be issued until account of administration taken—Heirs, without interest, not proper parties—To authorize bill against heirs complainant must show other remedies exhausted. </p>

<p>Will—Illegitimate child cannot take under general devise to children—Vroperiy to be decided equally, legatees take per capita;.</p>

<p> Ditoree—Husband bound to pay alimony becoming clue and payable before finad decree—That not yet payable fulls with suit. </p>

<p> Usury—Amount paid upon judgment for usurious loan cannot be recovered back in chancery—Proper course of defense stated. </p>

<p> Marlem Railroad—Restriction as to time of completing road only applied to road as.oi'igi-naily authorised. </p>

<p> Vendor and purchaser—Land sold for gross mm paid for whole premises, all within boundaries passes without regard to amount. </p>

<p> Receiver—Of moneyed institution, appointed under Act of April 27, 1841, an officer of the bank commissioners, -not of the court—Order for appointment—Form. </p>

<p> Taxes—Bill inequity to -reach equitable effects in absence of property which can be reached by warrant. </p>

<p> Contempt—Election.—Objection that a party in contempt only available when he applies for a favor—Application to compel complainant to elect in which court he will proceed, a matter of right. </p>

<p> Partnership—Dissolution by death—Court will not appoint a receiver to dose up concerns if survivor responsible. </p>

<p>Party—Officer of corporation made party for purpose of obtaining ansicer—Allegations of bill — MuUifariousness — Prayer for relief against officers— Whole bill not demurrable— Proper course indicated.</p>

<p> Guardian—Appointment—Surrogate to ascertain infant’s relatives and notify them—Application by one not a relative—Proper course indicated—Application by relative—Proper course—Appellate court may reverse decision —Preferences—Parties to appeal. </p>

<p> Usury—Defense of, available to surety—Surety cannot file bill in name of principal—Draper course indicated. </p>

<p> Husband and wife—Wife pledging separate estate for husband’s debt entitled to rights of surety—But not where she joins in mortgage of husband’s property— Wiffs rights in 'such case stated. </p>

<p>Ne exeat—Arrest without service of subpoena— Not sufficient to discharge defendant.</p>

<p> Mortgage foreclosure—Complainant holder of several mortgages—First mortgage to be paid and surplus brought into court. </p>

<p> Creditors’ bill—False return of execution by sheriff not a bar. </p>

<p> Costs—Foreclosure suit—Neglect to give notice to subsequent purchaser made party, that no personal claim made—Such party not entitled to costs unless he simes that he is misled. </p>

<p> Practice—Notice that cause ready for hearing— Need not contain names of solicitors of defendants against whom MU has been taken as confessed. </p>

<p> Injunction—Not granted ex parte to stay public im,protements—Order to show cause granted. </p>

<p> Costs—Allowance for parts of folios—Surrogate?e return—Counsel fees for settling final decree —Buie as to decree upon appeal. </p>

<p> Mortgage foreclosure—Application to stay proceedings until cross-bill ready for hearing, denied. </p>

<p> Parties—Suit by sureties to restrain action against themselves and maker of note—Principal a necessary party—Suit on usurious note by nominal plaintiff for benefit of real owner—Owner bound to testify to fact of usury. </p>

<p>Divorce—Injunction not allowed to deprive defendant of custody of children — Defendant restrainedfrom removing children from State. J. Rhoades for complainant. A. Thompson for defendant.</p>

<p> Contempt—Court may proceed either by attachment or by order to show cause—■Order requiring defendant to appear in four days—Fine and commitment. </p>

<p>Practice—Reference of exceptions to answer— Copy of order to be served or summons served within ten days.</p>

<p>Pleading—A nswer accompanied by plea or demurrer—Plea or answer disposed of before exceptions to answer filed— When overruled, order taken to that effect merely—Twenty days to except to answer—Proper course indicated.</p>

<p>Guardian ad litem—Petition to show authority to make appointment— Persons having adverse interests ought not to join as complain ants—Sill by husband in name of himself and !wife, is MU of husband merely—Wife to prose-1 cute in relation to her separate estate in her own name—Husband made defendant—Suit by husband to deprive wife of separate estate, wife to be defendant.</p>

<p> Pleadings—To be served within lime required by rube. </p>

<p> Costs of motion—Engrossment of pleadings with affidavits not allowed. </p>

<p> Corrupt agreement—Court will not aid either party. </p>

<p> Creditors’ bill&emdash;lief erence directed to master near residence of defendant&emdash;Object of Rule 190. </p>

<p> Pleading&emdash;Practice of amending answer discontinued. </p>

<p> Appeal from surrogate&emdash;Parties, how brought in-Revivor of abated appeal. </p>

<p> Practice—Not a matter of course to permit filing of replication after time—Allegations of petition—Complainant may dismiss bill at any stage. </p>

<p> Practice—Complainant may dismiss bill at any time before decree—Proper order—Suit not out of court until costs paid—Proper course inhere complainant neglects to pay costs. </p>

<p> Husband and wife-Ownership of debts due wife-Survivorship-Suits, in whose name brought-Effect of talcing new security in name of wife. </p>

<p>Specific performance—Power of court to decree when lands situated in another State— Against infant defendant.</p>

<p> Abatement—Plea of former suit pending—Plea to be argued and disposed of before bill dismissed. </p>

<p> Pleadings—Verification of bills of corporation — Form, of bilí—Ex parle applications for injunctions or ne exeats—Affidavits. </p>

<p> Mortgage—Proceedings at law for debt will not prevent foreclosure—Action at law not allowed to proceed. </p>

<p> Landlord and tenant—Lease of sheep to be returned in kind—Title passes to lessee—Otherwise where same stock to be returned. </p>

<p> Injunction—Restraining preference inpayment of notes of insolvent bank. </p>

<p>Jurat—In past tense valid—Effect of stating that facts instead of matters were true. Whelpley, complainant, in person. Cyrus Stevens for defendants.</p>

<p> Injunction—To restrain building railway. </p>

<p> Commissions for examination of witnesses—Returnable by mail—Signatures—Mistake in name of witnesses. </p>

<p> Reference—Neglect of defendant to attend before master—Duty of solicitor when absence from home prevents attendance. </p>

<p>Mortgage foreclosu re— County clerk’s fees.</p>

<p> lame—To try defense of usury set up in answer —Probable grounds of defense must be shown. </p>

<p> Creditors’ bill—Demurrer overruled,. </p>

<p> Costs—Liability of complainants' solicitor for. </p>

<p>Bearing—Reading of documentary evidence— Requisites for.</p>

<p> Usury—A corrupt agreement necessary to constitute—Defense of. </p>

<p> Preliminary injunction—Not proper to compel construction of viaduct under railway. </p>

<p> Verifying bill by attorney—Facts stated upon information and belief—Charges upon which injunction granted to be sworn to. </p>

<p> Mortgage foreclosure—Party must he irresponsible and premises insufficient, to entitle to receiver. </p>

<p> Creditors’ MU—Will only reach property belonging to defendant when suit commenced—Mode of reaching after-acquired property—Reference to appoint receiver—Witness examined to ascertain what property defendant had when bill filed. </p>

<p> Mortgages to trustee—Left simultaneously for record—Priority. </p>