Volume 10 — Paige's Chancery Reports

This was an appeal by Fitch, the complainant in the first of the above causes, from a decision of the vice chancellor of the eighth circuit. The complainants, respectively, were judgment creditors of the defendant Smith, and filed creditors’ bills against him, to obtain satisfaction of their debts.

This was an appeal by Maltby Strong, one of the defendants, from an order of the vice chancellor of the eighth circuit overruling a plea.

This was a bill to foreclose a mortgage, and during the pendency of the suit the defendant who was the owner of the equity of redemption was decreed to be a bankrupt. moved for the usual decree upon the bill taken as confessed against the defendant ; but upon the fact of the decree in bankruptcy being stated,

This was an appeal from a decree of the vice chancellor of the fourth circuit. The bill was filed by the wife against her husband for a separation from bed and board, on the ground of cruel treatment, and of such conduct on the part of the defendant towards the complainant as rendered it unsafe and improper for her to cohabit with him. It appeared that the parties were married in the spring of 1799, and resided in this state, most of the time at Lansingburgh.

This was an appeal from a decretal order of the surrogate of New-York, denying an application of the appellant to compel the respondents, as administrators, to deliver over to him certain property which they had taken possession of, claiming that it belonged to the estate of the decedent.

This was an application to set aside a master’s sale. It appeared that the property had been previously sold by the master, and that an application had been made to the court, without notice to the defendants who had appeared in the cause, and an order granted discharging the purchaser and ordering'a resale. And upon the second sale the property was sold for less than on the first.

This was an application by the complainant in a partition suit to have the register appointed the guardian ad litem- for one of the defendants who was an infant; but twenty days had not elapsed since the return day of the subpoena.

This was an application for a decree in a foreclosure cause upon bill and answer as to the defendant Burtis, and upon the bill taken as confessed as to the other defendants. Burtis was a prior mortgagee j and the complainants stated in their bill that they did not know the amount due upon the prior mortgage, and prayed for a discovery thereof. The counsel for Burtis asked for costs.

This was an appeal from a decision of the vice chancellor of the first circuit, relative to the disposition of the rents and profits of mortgaged premises in the hands of a receiver.

<p>A widow is entitled to dower in an equity of redemption which existed at the death of her husband. But whether an actual foreclosure and sale of the equity of redemption of mortgaged premises, during the life of the husband* under a decree of the court of chancery to which the wife was not a party, would bar her right to redeem her estate in dower in said premises; Quare ?</p> <p>Where the heir at law has the right to redeem mortgaged premises and the wife is entitled to dower in the equity of redemption, she has the equitable right to red eem h or dower, as against the mortgagee and those claiming under him, upon the payment of such portion of the incumbrance as is just and equitable. <?</p> <p>Where this equitable right is vested in the wife, by the death of her husband in possession of the premises, the mortgagee cannot deprive her of this right except by such proceedings against her, to foreclose her equity of redemption, as are by law required to bar the equity of redemption of the heirs at law in the same premises.</p> <p>For all substantial purposes the mortgagor in possession, and those who have derived title to the mortgaged premises or to any interest therein under him, are considered as the real owners of the premises to the extent of their several interests therein; and the mortgagee is considered as a mere creditor who has a specific lien upon the premises for the payment of his debt.</p> <p>Where a mortgagee has contracted to receive a rate of interest less than the legal rate, during the time of credit agreed upon by the parties, and he suffers the mortgagor to remain in possession after the mortgage money becomes, due and payable, it seems1 that an understanding of the parties will be presumed, that the interest shall continue at the same rate until the mortgagee thinks proper to demand payment. But no such presumption can be raised whore the mortgagee attempts to foreclose his mortgage, and takes possession of the mortgaged premises, under the supposition that he has actually acquired the equity of redemption as a substitute for his debt.</p> <p>And where the mortgagee has thus taken possession, the wife of the mortga. gor who is entitled to dower in the premises, and who was not made a party to the foreclosure suit, cannot redeem her life estate except upon the payment of legal interest upon one-third of the amount due on the mortgage, for the residue of her life ; and possession of one-third of the premises cannot be decreed to her without an actual redemption.</p> <p>A mortgagor whose equity of redemption has not been barred has a right to redeem from the mortgagee in possession, upon payment to him of the principal and interest due on his mortgage, after deducting therefrom the rents and profits received by the mortgagee. And the mortgagee will be entitled to a decree that payment, of the amount ascertained to be due, be made within such time as the court shall direct, or that the mortgagor’s equity of redemption be absolutely foreclosed; or to a decree for a sale of the mortgaged premises, to satisfy the amount so ascertained to be due.</p> <p>The mortgagee in possession of the mortgaged premises can in no case be divested of that possession until his claim under the mortgage is fully satisfied.</p> <p>Where a mortgagee in possession has foreclosed the equity of redemption of the person who has the estate in remainder in the mortgaged premises, but not of the owner of the estate for life therein, the latter is not entitled to the possession of the premises, during the continuance of his life estate, upon merely paying the interest which becomes due on the mortgage from year to year for life; but he must pay a gross sum, to be ascertained, under the direction of the court, upon principles on which the present value of a life annuity is calculated, considering the annual interest on the amount then due on the mortgage as the annuity. And upon the payment of such gross sum, he will be permitted to redeem his interest in the mortgaged premises and will be let into possession thereof during the continuance of his life estate therein; or the decree may direct his life estate to be sold, for the purpose of satisfying his proportion of the debt thus ascertained, and that the surplus arrising from the sale be paid to him.</p> <p>The same mode must be adopted to settle the relative proportions which the owner of the life estate and the remainderman should pay to redeem the premises, where the mortgage has not been foreclosed as to either.</p> <p>Where the widow is entitled to dower in the equity of redemption, and the mortgagee declines to enforce payment of the principal of his debt, she must, as between her and the heir or other owner of the equity of redemption, contribute sufficient from time to time to keep down one-third of the interest on the amount due. But where the mortgage money is due and the mortgagee insists upon the payment of his debt, the court will not require him to relinquish the possession of any part of the mortgaged premises and to receive the payment of the proportion of the debt which is chargeable on that part of the premises in periodical payments, during the life of the party entitled to "redeem.</p> <p>Where the widow elects to redeem, by the payment of a gross sum equal in value to the proportion of the interest on the amount due for life, or where her equitable right of dower has been redeemed by the rents and profits received by the mortgagee in possession, or where her life interest in one-third of the premises is sold to satisfy the mortgagee for her proportion of the debt, the admeasurement of her dower must be made upon the principles adopted in the revised statutes relative to proceedings for the admeasurement of dower.</p> <p>The principles upon which a mortgagee who takes possession of the mortgaged premises without a regular foreclosure is to account, are substantially the same as those which the revised statutes have adopted in relation to the damages of the doweress, where her dower has been withheld from her, after demand; that is, the mortgagee will be charged with the net rents and profits which he has received, or which he might have received without any negligence on his part, after payment of taxes and ordinary repairs and other expenses of that character. But he will not he charged with the increased rents and profits arising from the use of any permanent improve, ments made by himself.</p>

<p>Under the act of May, 1837, to prevent usury, a mere agreement for an usurious premium, where nothing has in fact been received under such agreement either directly or indirectly, is not an indictable' offence.</p> <p>But if any part of the usurious premium contracted for should be subsequently received, the offence which is made indictable by the statute would then be complete, so as to subject the usurer to a criminal prosecution.</p> <p>A witness cannot be called upon to give testimony showing that he had been guilty of receiving usury, to establish another species of defence to the action, although he is the real plaintiff in the suit; as the statute only protects the plaintiff when he is called upon to establish the defence of usury.</p> <p>An agreement with the principal, to extend the time of payment, which will have the effect to discharge his sureties, must be an agreement which the principal can enforce as a binding agreement between him and the creditor ; and must be founded upon a sufficient consideration.</p> <p>Where the creditor agrees to give time of payment to the principal debtor, in consideration that he will pay a part of the debt, where the whole is payable immediately, or that he will pay interest on the debt when he was by law previously bound to pay interest, or in consideration of a parol promise which is void by the statute of frauds, or in consideration of an executory promise to pay an usurious premium at a future time, such agreement to extend the time is not founded on a sufficient consideration to support it, and will not discharge the sureties. But an agreement with the principal debtor to extend the time of payment, withotit the consent of the sureties, founded upon an usurious premium for the forbearance, which premium is actually paid to usurer at the time of making the agreement, is a sufficient consideration to support the agreement, and will discharge the surety.</p>

This was an appeal from a decretal order of the vice chancellor of the first circuit overruling the defendant’s plea. The bill was filed -for an account and settlement of partnership transactions, in an alleged copartnership between the testatrix and the defendant.

This was an appeal from the decision of the circuit judge of the seventh circuit, reversing the sentence or decree of the surrogate of the county of Onondaga against the validity of a paper propounded as the will of Hannah' Chandler deceased. The instrument propounded was without date, but from the testimony of one of the witnesses it must have been made about three or four years before it was offered for probate in 1841.

<p>An agreement that an agent or factor shall receive a reasonable compensa» tion, to be paid by the principal, for accepting and paying bills with funds furnished by the latter, is not per se usurious.</p> <p>And where the agreement, by its terms, contemplates an advance of money to pay the bills, when they become due, if the principal does not furnish the means of payment at the day, an allegation that such agreement was usurious merely presents a question of fact, to be decided by the proofs, whether the compensation agreed to be paid was intended as a mere shift ' to cover an usurious premium on such advances, or was intended as a compensation for the trouble and expense of accepting arid paying the bills as the agent of the principal.</p> <p>To render it necessary to file a replication to an answer, so as to enable the parties to take proofs of usury, the answer should contain a distinct allegation of usury$ and an answer in which the defendant states, in general terms, that she believes the transaction was tainted with usury, is not sufficient for that purpose.</p>

<p>An appeal from the sentence or decree of a surrogate confirming the probate of a will of personal property, upon allegations against the validity of the will, filed in the office of the surrogate, under the 31st section of the article of the revised statutes relative to wills of personal property and the probate of them, must he brought in the first instance to the circuit judge, and not directly to the chancellor.</p> <p>The 55th section of the third article of the same title, allowing appeals to the circuit judge, applies to all cases in which the validity of the will, or the competency of the proof to establish the same, is the question in controversy before the surrogate; whether such question arises upon an original application of the executor, or other person, propounding the will for probate, or upon an allegation against the validity of a will which has been admitted to probate, as authorized by the 31st section.</p>

This was an appeal from an order and decree of the vice chancellor of the third circuit overruling the demurrer of the defendants, and directing them to pay the complainants’ judgment, with costs.

This was an application by the complainant to take the defendant’s answer and disclaimer off the files' of the court.

<p>This was an application to dissolve the injunction, upon the coining in of the defendant’s answer to a bill of discovery, and for costs. The application for costs was resisted upon the ground that the defendant had refused to make the discovery sought until it was drawn from him by the complainant’s bill.</p>

<p>The provision of the revised statutes directing that mistakes in stating any day, month, or year in any pleading or record, which could be amended by the court after verdict, in any cause, shall be disregarded upon the trial, unless the mistake or variance be calculated to surprise or mislead the adverse party and to prevent his preparation for a full answer on the merits, applies to a mistake in setting out the date of the deed or instrument which is the foundation of the suit.</p> <p>The principle of this provision is applicable to the court of chancery; and in that court, if the adverse party could not have been misled by a mistake in a date, the complainant’s bill should not bo dismissed or the defendant’s defence rejected by reason of a mere clerical- mistake of this kind, where upon the face of the record the variance will not render the complainant’s claim to relief, or the defendant’s defence, bad in substance.</p> <p>But at the request of the adverse party, and to remove all danger of his being made liable a second time, the original pleading on file will, at the hearing, be amended by conforming it to the true date.</p> <p>The taking a compensation for the difference in exchange, where a loan ,. made in a draft on a distant place, which draft is wanted for the pur. pose of being actually used there and not as a mere cover for usury, is not illegal.</p> <p>Notes and drafts not negotiable, and which therefore cannot be used and circulated as money, although made payable after date and with interest, may be issued by banks and banking associations, in the course of their business, either as evidences of indebtedness to particular individuals, or for other legitimate purposes; such notes and drafts not being within the mischiefs intended to be guarded against by the statutory provisions prohibiting the issuing of post notes by banks and banking associations.</p>

This was an appeal from a decretal order of the vice chancellor of the eighth circuit allowing a plea. The Bank of Rochester filed a bill against the defendant Emerson, to foreclose a mortgage given by him, and obtained the usual decree over against him for the deficiency in case the proceeds of the mortgaged premises should be insufficient to pay the debt and costs.

This was an appeal from a decree of the assistant vice chancellor of the first'circuit, in a foreclosure suit. The complainants’ bill was filed to obtain satisfaction of the balance due upon a bond and mortgage dated on the 11th of March, 1836, but actually executed three days thereafter, conditioned for the payment to Jarvis & Tremain, the original mortgagees, of the sum of $2000, in February 1835.

This was an appeal from a decree of the vice chancellor of the eighth circuit, dismissing the complainants’ bill against the defendant E. ‘Smith, and their supplemental bill against Ithamar Smith and others.

This was an application on the part of the complainants to make B. Slade, who had married one of the female complainants, a party to the suit; also to make G. Webster a party defendant, by a supplemental bill; and to set aside certain proceedings, on the part of the defendants, before a master, which had taken place during the pendency of an appeal to the court for the correction of errors.

This was an appeal by the complainant from an order of the vice chancellor of the seventh circuit. The complainant recovered a judgment against the defendant, and after the return of an execution unsatisfied, he filed a creditor’s bill against the defendant in this court.

The bill in this case was filed, to obtain a partition of sixteen parcels of land in the county of Schoharie. And upon the coming in of the master’s report, as to the rights and interests of the parties in the several parcels respectively, various questions arising upon the construction and effect of wills and conveyances under which portions of the premises were claimed, were presented to the chancellor for decision.

The bill in this cause was filed by two of the children of E. House deceased, against his widow and personal representatives and his other child, for an account and administration of his estate. The decedent in his lifetime had sold, and conveyed with warranty, a lot of land belonging to the complainants by descent from their deceased mother; in land which the intestate had only a life estate as tenant by .the curtesy.

This was an application on the part of the defendant to stay the proceedings upon a decree against him pending an appeal to the court for the correction of errors. The bill was filed by the wife against her husband for a limited divorce, 'or separation from bed and board.

This was an appeal from a decree of the vice chancellor of the sixth circuit. The object of the complainant’s bill was to obtain a decree restraining the defendants, Lawrence & Keese, from proceeding in a suit at law to recover a lot of land in Chenango county called the Carson lot, and to quiet the complainant’s title to the premises.

This was an appeal from a decree of the vice chancellor of the seventh circuit, dismissing the bill in this cause.

This was an appeal from so múch of the sentence and decree of the surrogate of the county of Yates as awarded costs to the administrator, to be paid personally by the party who had instituted proceedings against him to compel him to account.

The bill in this cause was filed by the complainant, J. Bowers, in the names of himself and wfife, to obtain a construction of the will of his deceased father in law, Elias Smith. Held: used, and enjoyed by her free from all debts and demands and from the control of her husband.

This case came before the court upon exceptions to the report of a master, to whom it was referred to take and state the account of the defendant, as the administratrix of W. Alvord, deceased, and to report the amount due to the complainant and to the other creditors of the decedent.

This was an appeal from a decretal order of the vice chancellor of the seventh circuit, allowing the pleas of the several defendants to the complainant’s bill. The complainant was a judgment creditor of Curtis,, one of the defendants, as to whom this was an ordinary creditor’s suit to reach his choses in action and other property and equitable interests.

This was an appeal from a decision of the surrogate of the county of Westchester. Bibby, as one of the executors of H. Van Cortland deceased, applied to the surrogate to prove the will of the decedent, and a codicil to the same, as a will of real and personal estate. He took out a citation to attend the surrogate, for that purpose, directed to the heirs at law and next of kin, and to the husbands of such of them as were femes covert.

The bill in this cause was filed by the complainants as judgment and execution creditors of Halliday, one of the defendants, to set aside an assignment of his real and personal property to Decker, Hammond, and Campbell, the other defendants, as fraudulent; and as forming a cloud upon the title to the property on which the complainants had obtained a lien by the docketing of their judgment, and the levy of their execution.

<p>Where the testator devised and bequeathed to the children of his daughter E. then in being, and to such children as she should thereafter have, one-third of his real and personal estate to be equally divided among them share and share alike; and in case of the death of any of them without issue, and under the age of twenty-one, their shares to go to the survivors and to the children of such as had died leaving issue; with a limitation over to E., their mother, in case they should all die under age and without issue, if she should then be living, and if not living, then to her sister O. and her heirs; and the testator then charged the property devised and bequeathed to the children of E., with her support, and directed his executors to take upon them tire management of the property until the children of E. should respectively attain the age of twenty-one, and from the rents, profits and increase of the property to defray the expense of the support of E. and of the maintenance and education of her children, and to accumulate the surplus, if any, for the benefit of the children respectively until they should attain the age of twenty one; and the will then declared, that it was the express desire and will of the testator that no part of the share or interest in his estate given to the children of E. should go out of the hands and management of his executors until such children should respectively attain the age of twenty-one, or until guardians should be appointed to manage the same for them; and the testator died leaving his daughter E. surviving him, who then had three children, all under twenty-one years of age ; and the father of the children obtained the appointment of guardian of their estates:</p> <p>Held, that by the will no part of the capital of the estate was given to the infant children of E. until they respectively arrived at the age of twenty-one; and held if there had been no trust clause in the will that the executors could not have been required to pay over any part of the principal of their jespective shares, to them or to their general guardians, while they were under the age of twenty-one.</p> <p>Held further-, that the testator by his will, contemplated a distribution of the capital of the fund among the children of E., during her life, as they should respectively attain the age of 21, and that her support was a charge upon the estate in the hands of the devisees and legatees after they should respectively arrive at the age of 21, and that the trust to the executors to receive the rents and profits, and apply so much as might be necessary for her support, was restricted as to each share to the time when the owner should have attained the age of 21: Held also, that as to the shares of the personal estate to be paid over to the children, respectively, as they arrived at the age of 21, the court could direct it to he paid over to the legatees presumptively entitled to such shares, during the lifetime of their mother, upon their giving security to protect the contingent interests of afterbom children in that part of the fund.</p> <p>Held further, that the direction in the will, to the executors, to take upon themselves the management of the property, until the children of E. respectively attained the age of 91, and from the rents, to provide for her support as well as for the maintenance and education of her children who had not attained 91, was a valid bust; and that the legal title to the real as well as to the personal property vested in the trustees, by implication, during the minorities of the respective legatees and devisees, to enable such trustees to collect and receive the rents, &c. and apply them to the purposes of the trust, and to accumulate the surplus, if any, for the benefit of those entitled thereto during their respective minorities as directed by the will.</p> <p>Held also, that the executors, after providing for the support of the mother, should pay over from time to time, to the general guardian of the children, so much of the residue of the rents arid profits belonging to them respectively as was necessary for their support and education; taking his receipts therefor as such general guardian.</p> <p>The general guardian of infants cannot file a bill in his own name to obtain possession of the property of his wards. But he must file it in the name of the infants, as their next friend.</p>

This was an appeal from a decree of the assistant vice chancellor of the first circuit. The bill in this cause was filed by H. Brown to redeem certain premises which had been sold under a decree of foreclosure in a former suit.

This was an appeal from a decree of the vice chancellor of the third circuit, dismissing the complainant’s bill against Allen and Hawley, two of the defendants, with costs. The object of this suit was to obtain a decree allowing the complainant to redeem a lot of land, in Washington county, which had been purchased by the defendant Hawley, at a sheriff’s sale ; and which had afterwards been conveyed by him to the defendant, Abram Allen.

This was an appeal by the complainants from a decree of the vice chancellor of the first circuit. The material facts are stated, in substance, in the report of the case before the vice chancellor, in 2 Edw. Ch. R. 636.

This was an appeal by the complainants from an order of the vice chancellor of the first circuit, dissolving an injunction and denying an application for the appointment of a receiver. The complainants claimed to be creditors of the limited copartnership of Booraem & Co., which was insolvent, and to be entitled to a rateable proportion of the assets of the firm in payment of their debt.

This was an appeal by the sheriffs of the counties of Orleans and Monroe, from a decretal order of the vice chancellor of the eighth circuit, convicting them of a contempt, for levying upon property of the defendant Schermerhorn, which he had been ordered to assign and deliver to the receiver appointed in these causes.

This was an appeal by the complainant, and T. Babcock, one of the defendants, from a decree of the vice chancellor of the fifth circuit, in a partition suit.

The bill in this case was filed by the surviving and acting executors and trustees of Elizabeth De Peyster, deceased, for the specific performance of a contract, by the defendant Haight, for the purchase of two lots of land in the city of New-York, belonging to the estate of the decedent.

This was an appeal by the defendant, from an order of the vice chancellor of the eighth circuit, to recommit the defendant upon a conviction for a contempt. The defendant had been convicted for the wilful breach of an injunction, and had been fined for such misconduct, as directed by the statute. After his commitment he was discharged from his debts under the bankrupt act.

<p>This case came before the court upon a motion by the defendant, to take the complainants’ bill off of the files of the court and to dissolve the injunction obtained thereonj and upon a cross motion, by the complainants, for the appointment of a receiver. The defendant, and the complainants’ intestate were in copartnership at the death of-the latter, and the goods of. the firm were put up at auction, with the assent of the administrators and the surviving partner, and were mostly bid off by the latter. The bill in this cause was filed by W. A. Tooker, in the name of all the administrators, to set aside the sale, on an allegation that it was improperly conducted, so that the property was sold below its value 5 and to have a receiver of the effects of the copartnership appointed, and for an account. The application to dismiss the bill was founded upon the affidavit of ¡N. Oakley, one of the complainants, who swore he was the acting administrator, that he was satisfied that the sale was fair, and that this suit had been instituted by his co-administrator without consulting him, and without his consent.</p>

This was an appeal from an order of the vice chancellor of the first circuit, appointing a receiver of so much of the property and effects of the New-York and Albany Rail Road Company as might be necessary to satisfy the complainant’s debt and costs.

This was an application by the complainant for leave to dismiss his bill as to Babcock, one of the defendants, who had been discharged under the bankrupt act subsequent to the commencement of this suit.

The bill in this case was filed to foreclose two mortgages upon the same premises, given at different times. The senior mortgage was payable by instalments, and only a part thereof had become due ; but the whole of the junior mortgage had become due and payable. asked for a sale of the whole of the mortgaged premises.

This was an application by the complainant for an injunction to stay the collection of a judgment at law, upon the ground of usury ; and for liberty to give a bond with sureties, instead of bringing the amount of the judgment into court, as directed by the statute,

This was an appeal from an order or decision of the vice chancellor of the first circuit refusing to set aside, modify, or dissolve an injunction ; and ordering the defendant Sand, and his attorney in an ejectment suit against J. M. Brown, to vacate the judgment entered in such suit, or that an attachment issue against them. The bill in this cause was sworn to on the 18th of July, 1842.

This was an application to dismiss an appeal from the sentence and decree of the surrogate of Niagara county, for the payment to the respondent, of $1054,40 and interest.

This was an application by J. T. Cooper to dismiss the appeal in the first entitled cause, and to revive the proceedings upon the last appeal, or for such other order as might be proper under the following circumstances. Olivia E. Renwick was the administratrix, and J. T. Cooper the administrator of J. Renwick deceased, and both were cited to account before the surrogate of Rensselaer county, and the final sentence and decree of the surrogate was made in March, 1830.

This was an appeal from a decision of the vice chancellor of the seventh circuit, denying the application of a purchaser at a master’s sale for a writ of assistance, to put him in possession of the mortgaged premises. The writ of assistance was asked against the mortgagor, who was a party to the suit, and against his two sons who were not parties, but who were in the same family with him upon the premises.

This was an application on the part of the complainant for a new trial of an issue awarded by this court. Jacob Conner was the owner of certain premises, subject to two mortgages thereon to Ida Thorn, previous to November, 1837.

This was an application for the appointment of a receiver, upon a creditor’s bill, of the property of the defendant Tompkins only. The counsel for Tompkins showed that upon the dissolution of the copartnership between him and the other defendant the latter had assumed the payment of this and the other copartnership debts.

This was an application by one of the defendants to set aside the proceedings upon a decree made by the assistant vice chancellor, upon the ground that an appeal from such decree had been duly entered and that security had been given to make such appeal a stay of the proceedings.

This case came before the chancellor upon appeal from two separate and distinct orders or decisions of the surrogate of the city of Mew-York.

This was an appeal from an order of the vice chancellor of the first circuit, staying all proceedings in this suit until the complainants therein should have put in and perfected their answer to the cross bill filed by the defendants De Kay and wife.

<p>It is not necessary, in a creditor’s bill, to state the docketing of the judgment except in those cases where the judgment hits been recovered in a local court, and the execution has been issued to a different county from that in which the court was held.</p> <p>Where a judgment is recovered in the supreme court, so that the execution may be issued to any county in the state, it is no objection to a creditor’s bill that the judgment had not been docketed in the county to which the execution was issued.</p>

This was an appeal from a decree of the vice chancellor of the fifth circuit dismissing the bill of the complainants with costs. The facts of the case are stated in the following opinion of the vice chancellor. Gridley, V. C. The two first named complainants constituted a mercantile firm in Utica, and were indebted to the defendant in a large sum of money.

This case came before the chancellor upon an appeal from a decision of the vice chancellor of the fourth circuit dissolving an injunction. In 1836, the defendants sold to the complainant ten thousand acres of Texian lands for .the price or sum of $1250 ; for which the latter gave to them his promissory notes payable in building slate, in six annual instalments.

The bill in this cause was filed against J. McCamly, the surviving husband of Amy McCamly deceased, and against Frances Amy McCamly, her infant daughter, to correct an alleged error, in the description of the premises, in two deeds given to the complainants, executed by J. McCamly and his wife, in the lifetime of the latter.

This case came before the chancellor upon a petition of the executors of D. W. Cole deceased, for an order for summary relief, upon the foot of the decree in this cause, against Allen and Robinson, two of their co-defendants, on the following state of facts : In September, 1835, A. P. Grant, and Cole the intestate, purchased a lot of land in East Oswego, and gave back a mortgage for the purchase money, $3500 and interest, payable to G. Smith in ten annual instalments; but…

This cause came before the chancellor upon an appeal by J. Wallis, one of the solicitors and counsellors of this court, from an order of the vice chancellor of the first circuit-, made upon the application of Alphonse Loubat,' who was a purchaser pendente lite of part of the property which was in litigation in this cause.

This was an-appeal by the defendants from an order of the vice chancellor of the eighth circuit, directing the master’s report of the sale of the mortgaged premises, and of the deficiency, to be filed as of the day when it was left in the clerk’s office by the complainant’s solicitor ; and that the order to confirm the report be entered, nunc pro tunc, as of that time.

This was an appeal from a decision of the surrogate of New-York, directing that the real estate of. W. S. Baker deceased should be mortgaged for the payment of his debts; and that his executor and executrix should give security, according to the statute, on or before the 24th of February, 1843, or in case of their neglect, that a disinterested freeholder be appointed to discharge the duty.

This case came before the chancellor upon the application of E. A. Jee, A. W. Jee, and P. R. Morrison, three of the complainants, to vacate an order, taken by default, dismissing their appeal in this suit; and also to open a decree, obtained upon an ex parte argument, in the cross appeal of the defendant John S. Gay, and to dismiss that appeal.

This was an application by the receiver of the property and effects of the City Bank of Buffalo, for the instruction and direction of the court, in relation to the settlement and adjustment of certain claims against the bank, which claims had been presented to and disallowed by him.

This was an appeal from so much of the order of the assistant vice chancellor, overruling the demurrer to the complainant’s bill, as gav.e to the defendant six months to put in his answer.

This was an appeal by the defendant from a decree of the vice chancellor of the eighth circuit. The bill was filed for the specific performance of a contract for the sale of a store and lot in the village of Westfield, in the county of Chautauque, belonging to the complainants.

This was an appeal, by the complainant, from- a decretal order of the vice chancellor of the fifth circuit overruling a master’s report, allowing an exception to the answer of the defendant White for impertinence. The bill was filed to foreclose a mortgage which had been assigned to the complainant, who was also the assignee of other mortgages upon the equity of redemption in the premises; but who in his bill had said nothing about these junior mortgages.

This cause came before the court upon a demurrer to the complainants’ bill. The object of the bill was to obtain the specific performance of a contract for the purchase of a lot of land in the city of New-York by the defendant.

This was an appeal from a decree of the vice chancellor of the eighth circuit, dismissing the complainant’s bill with costs. In July, 1835, E. B. Wesley sold and conveyed a lot in Buffalo to the defendant Marble, and took back from him a bond and mortgage, to secure the payment of $700 of the purchase money. Wesley assigned the bond and mortgage to Allen, and the latter assigned and delivered them to J. D. Jennings, in March, 1837.

This was an appeal by the complainant from a decree of the assistant vice chancellor, dismissing the bill in each of these causes with costs. In October, 1811, H. A. Outhout sold and conveyed the mortgaged premises, as the attorney of Eliza Evertson, to D. Smead, and took back a bond and mortgage for the purchase money, payable with interest, the one half on the 1st of May, 1812, and the residue in one year thereafter.

The bill in this cause was filed for a divorce on account of the adultery of the husband. The defendant allowed the bill to be taken as confessed for want of an answer • and the usual order of reference was made to a master in New-York to take proof of the facts charged in the bill, and to report, such proof to the court, with his opinion thereon. The witnesses to prove the charge of adultery resided in the county of Tompkins.

This was an appeal from a decree of the vice chancellor of the fifth circuit, in relation to the marshalling of the claims and securities of the several parties upon the mortgaged premises, in a foreclosure suit. The mortgaged premises originally belonged to Mrs. M. Tuttle, who subsequently married A. Lull, and died without having had any issue by him, leaving her father, P. Card, her only heir.

This case came before the court upon an attachment against the defendant N. P. Talmadge for a contempt in not answering the complainant’s bill, and upon an application to discharge the attachment; and also on a cross motion, by the complainant, to take the plea, put in by the defendant N. P. Talmadge after the service of the attach-, ment, off the files for irregularity.

This was an appeal by the defendant Bouchaud, executor of L. A. Brunei deceased, from a decretal order of the vice chancellor of the first circuit, overruling the demurrer to the bill of the complainants. In April, 1823, Castro & Henriques, who were copartners in trade as importing merchants in New-York, became insolvent.

\ This was an appeal by the complainant from so much of the decision and decree of the late assistant vice chancellor of the first circuit, as related to the liability of the respondents, Whitely and Close, for the deficiency of a mortgage debt, after exhausting the proceeds of the sale of the mortgaged premises.

This was an appeal by the defendant from so much of the decree of the late assistant vice chancellor of the first circuit, in a partition suit, as adjudged that the premises were so circumstanced that a partition thereof could not be made, without great prejudice to the owners of the same, and directed that a decree be entered for the sale thereof, without further notice to the defendant, upon the coming in of the master’s report as to liens ; and from so much of the decree…

This was an appeal by H. F. Sewall from a decision of the vice chancellor of the fifth circuit, denying the appellant’s application to become a party to this suit, and for permission to come in and make a defence to the same. The bill was filed in April, 1842, to foreclose a mortgage given to the complainant in July, 1839, by the Hamilton Manufacturing Company, the only defendant in the suit.

This was an application by W. Grant, one of the defendants who had already answered the bill, for leave to put in a new answer, setting up a discharge which he had subsequently obtained under the bankrupt act. An affidavit of the complainant was read, in opposition to the motion, stating that the discharge had been obtained by fraud, and that he intended to contest the validity of the discharge on that ground.

This was an application for an attachment against the defendant for the breach of an injunction. The suit was upon a creditor’s bill, and after the service of the ordinary injunction in such suit, the defendant proceeded to a hearing before referees, in a suit which he had previously commenced against a third person, and obtained a report and entered judgment thereon.

This was an appeal by the defendant Marsh, from an order of the vice chancellor of the fifth circuit, directing a resale of mortgaged premises which belonged to Forbes the other defendant; and which had been purchased by Marsh at a master’s sale under a decree of foreclosure.

The bill in this cause was filed in February, 1840, against P. Stuyvesant, G. Stuyvesant, J. R. Stuyvesant and others, to foreclose two mortgages, the one given by P. Stuyvesant to J. R. Stuyvesant on the 25th of June, 1839, and the other given by the same mortgagor to G. Stuyvesant on the 28th of the same month.

This case came before the court upon the application of A. McCalla, to ascertain the rights and interests of himself and others in a fund in court, amounting to $2490, with the interest thereon from the death of the defendant, E. Furman the elder, who died on the 28th of October, 1842.

This was an application to dissolve the injunction granted upon an ordinary creditor’s bill, against the judgment debtor, upon the answer of the defendant denying that he had any property, or an interest in any property, or choses in action, whatever.

This was an application to dissolve an injunction restraining the defendant from proceeding to foreclose a mortgage under the statute. The intestate of the complainants took a second mortgage upon the premises, for a debt due from the mortgagor, but without personal liability on the part of the mortgagor for the debt. The complainants foreclosed that mortgage without making the holder of the prior mortgage a party, and bid in the property.

This was an application by the complainants for the appointment of a receiver, as to certain property alleged to be holden by the two daughters of the defendant, O. Edwards, in trust for him. The affidavits showed that the property was not holden in trust for him, but that it was purchased with his funds, and that the title was taken in the names of his two daughters as an absolute gift to them.

This was an application to the chancellor to extend the time for the defendant to put in his answer. The bill was originally filed before the chancellor, and the defendant put in a demurrer to the whole bill. The case was then referred to the assistant vice chancellor of the first circuit, to be heard and decided. The assistant vice chancellor overruled the demurrer, and gave the defendant six months to answer the bill.

This was an application by the defendants for the re-taxation of costs, in a foreclosure suit. The bill was filed, to foreclose a mortgage, against twenty-one defendants, some of whom were infants. The bill was taken as confessed against all the defendants except the infants; who put in the usual general answer, by their guardian ad litem.

This was an application on the part of the defendant for leave to plead double.

This was an application to vacate an order appointing a receiver in this cause upon a creditor’s bill. The defendant’s counsel was attending in court to oppose the motion for a receiver the whole of the day for which the usual notice of the motion to appoint the receiver was given. But the complainant’s counsel, who was not aware of the intended opposition to the motion, obtained the usual order of reference, by default, unobserved by the defendant’s counsel.

This was an appeal by the defendants from a part of an order of the vice chancellor of the sixth circuit. The defendants applied for leave to examine two witnesses whose names had not been furnished to the complainants’ solicitor, or to the examiner, according to the provisions of the 83d rule of the court.

This was an appeal by the defendant from a decree of the late assistant vice chancellor of the first circuit. The complainants, as the executors of J. Coles deceased, with power to sell his real estate, filed their bill in this cause for the specific performance of an alleged agreement, by the defendant, to purchase one hundred and one lots and //¡j- of a lot, in the city of Brooklyn, at the rate of $30 for each lot, estimating each lot to contain 2500 square feet of land.

This was an application, by the defendants, for the dissolution of an injunction granted by the late injunction master of the first circuit, restraining the defendants from prosecuting suits against the complainants, or their agents, cartmen, or servants, for breaches of the corporation ordinances relative to the weighing of anthracite coal in the city of New-York.

This was an appeal by the defendants from a decree of the assistant vice chancellor of the first circuit. On the 15th of May, 1837, the legislature passed an act to repeal the charter of the Lockport Bank; which act took effect on the 4th of June in that year.

This was an appeal from a decree of the late assistant vice chancellor of the first circuit, dismissing the complainant’s bill of revivor and supplement. The original bill was filed by Peter Yroom, a resident of the state of New-Jersey, as a junior mortgagee of a lot of land in Seneca oounty, to redeem the mortgaged premises from a statute foreclosure and sale which had taken place under a prior mortgage.

This was an appeal, by the complainants, from a decision of the vice chancellor of the first circuit, denying an application to strike the defendant’s plea off the files for irregularity. After a plea had been disallowed the complainants amended their bill, and the defendant thereupon put in a new plea to the amended bill.

This case came before the chancellor upon three distinct motions. The first was an application, on the part of the defendant Lovett, to vacate or discharge so much of the order of the vice chancellor of the first circuit as allowed the complainant to amend his bill and to move to reinstate the injunction which was dissolved by such order.

This was an appeal from a decree of the vice chancellor of the seventh circuit, dismissing the complainant’s bill with costs.

This was an appeal by the defendant from a decree of the vice chancellor of the fifth circuit. James Alexander, the brother of the defendant, owned or claimed to own the pre-emptive right, under the act of March, 1823, to lot No. 7, and to ten acres of lot No. 9 in the New Stockbridge West Hill tract, and the defendant owned the pre-emptive right to the residue of lot No. 9.

This case came before the chancellor upon a demurrer to the complainant’s bill. The bill was brought to revive and continue a suit originally brought by Daniel Anderson against the present complainant, which suit abated by the death of D. Anderson, after a decree in his favor, and after he had sold and conveyed the premises to R. White, one of the present defendants.

This was an appeal from a decretal order of the vice chancellor of the eighth circuit, overruling the separate demurrers of the defendants to the complainants’ bill. The facts upon which the decision of the vice chancellor was founded, are stated in the report of the case when it was before him upon the original bill, and afterwards upon the amended bill. (1 Clarke’s Ch. Rep. 333,524.)

This was an appeal from a decree of the vice chancellor of the eighth circuit, allowing a general demurrer to the complainant’s bill for want of equity.

<p>Where a bill was filed to close up the concerns of a manufacturing company, which was alleged to have been dissolved, in fact, upon a particular day, and a decree was made for the benefit of creditors as to all debts which were due on the day of the alleged dissolution; Held, that a creditor who had commenced suits to recover debts due from the corporation, and who had obtained judgments therein before the decree, but after the time of dissolution mentioned in the bill and in the decree, was equitably entitled to his costs in those suits up to the time when he could have come in under the decree ; but that, l.y the terms of the decree, the master was not authorized to allow costs which had accrued subsequent to the day upon which the corporation was alleged to have been dissolved in fact.</p>

This was an appeal by the defendant Towle from so much of the decree of the vice chancellor of the first circuit as directs the appellant to pay and discharge the bond and mortgage given by the complainant to the defendant Pike, in exoneration and discharge of the liability of the complainant j and as gives a remedy over against him, by the defendant McLean, if the latter should be compelled to pay the amount due under such decree.

This was an appeal from so much of the order of the vice chancellor of the first circuit, appointing a receiver upon a creditor’s bill, as reserved to the defendant the use and rents and profits of all his real estate during the fifteen months allowed by law to redeem such real estate from a sale by the sheriff upon execution. The complainant is entitled to all the property of the defendant, (except such as is exempt from execution,) which cannot be reached by execution.

This was an application to dismiss the appeal of J. F. Delaplaine, one of the purchasers of a part of the real estate of the late J. Lawrence deceased, from an order or decree of the late surrogate of New-York vacating the sale made by the administrator.

This was an appeal by the defendant from an order of the vice chancellor of the eighth circuit. L. A. Spalding was convicted for a contempt, in violating an injunction upon a creditor’s bill, and was fined $3000 for the damages sustained by the complainant, by such misconduct, in addition to the costs and expenses of the proceedings.

This was an application to dismiss an appeal from a decree of the surrogate of the county of Monroe. The respondents, as the representatives of S. Morgan, the next of kin of J. Morgan deceased, cited the appellant, as the administrator of J. Morgan, to account • as authorized by the 52d section of the article of the revised statutes relative to the duties of executors and administrators in rendering an account and in making distribution to the next of kin.

This was an appeal from a decree of the late assistant vice chancellor of the ñrst circuit. The bill was filed againt the defendants, who were the infant children of Nathaniel Havens and Abigail his wife, to obtain a conveyance of the legal title to about twenty acres of land in the town of Riverhead.

This was an appeal, by the complainants, from a decree of the late assistant vice chancellor of the first circuit.