Volume 11 — Paige's Chancery Reports

<p>Where the real estate of the wife, by an ante-nuptial settlement, was conveyed to a trustee for her separate use, free from the control or debts of her intended husband, who was then insolvent, and the trustee, in pursuance of the trust, sold the estate, and loaned the proceeds to a mercantile firm, of which the husband was a partner, and took the note of the firm therefor, payable to himself as trustee; and subsequently directed the firm to invest a part of the amount thus loaned in furniture, for the use of the wife, and the furniture Was purchased accordingly for her separate use; Held, that the furniture thus purchased was in equity the property of the wife, as cestui que trust, and belonged to the -trustee for her use and benefit, and that the same could not be reached by the husband’s creditors;</p> <p>Held, further, if the money invested in the furniture was to be Considered as a loan of so much of the trust estate, to purchase furniture for the husband’s own use and benefit, that a subsequent judgment for that amount given to the trustee, under which the furniture was subsequently sold, and bid in by the latter, was founded upon a good and valid consideration; and vested the title of the furniture in the trustee, for the separate use of the wife.</p> <p>A bill taken as confessed against an absentee, after publication, who does not appear in the suit, is not evidence of any fact as against him, even as to his personal rights.</p> <p>Where a bill is filed against a tfustee jointly with the cestui que trust, and the latter appears and puts in an answer denying the charges in the bill, the suffering the bill to be taken as confessed by the trustee, cannot be permitted to prejudice the rights of the cestui que trust.</p> <p>If the husband’s furniture is sold upon execution against him, and is purchased in by the trustee of the wife, with funds held by him as her separate estate, and the furniture is left with the wife for the purpose of enabling her to have the use of the same, as her sepajate estate, such possession does not render the sale fraudulent as against the husband’s creditors; her possession being the possession of her trustee, and not the possession of the husband.</p>

This case came before the chancellor upon appeal; and the only question in controversy was whether the personal representatives of a trustee, who died previous to the revised statutes, were entitled to the commissions, for executing the trust, which were stipulated to be paid to the trustee by the terms of the trust deed.

The facts in this case are sufficiently stated in the opinion of the chancellor, to show the grounds upon which the defence of usury, attempted to be raised by the answer, was overruled as impertinent.

This was an appeal from a decision of the vice chancellor of the seventh circuit, denying the appellant’s application to dismiss the complainant’s bill.

Both parties, in this case, appealed from the decree of the assistant vice chancellor, made in this cause.

This was an appeal, by the defendants, A. C. Stevens, and Sherman Stevens, president of the Merchants’ Exchange Bank of Buffalo, from an order of the vice chancellor of the eighth circuit. On the 13th of October, 1835, J. D, Hoyt conveyed lot No. 96 of the state survey, of the mile strip reservation in the town of Buffalo, containing about 300 acres, to Kingman and Welty; and he took back from them a mortgage, of $7500, to secure the payment of the purchase money.

■ This was an appeal from an order of the vice chancellor of the éighth circuit, for the appointment of a receiver upon a' creditor’s bill; and from-another order denying the defendant’s application to dissolve the injunction which had been allowed upon the filing of the bill.

This was an appeal from á decision of the vice chancellor of the first circuit, disallowing six of the defendant’s exceptions to a master’s report upon exceptions to the answer. The bill Was filed by the complainant against her husband for a decree of separation from bed and board.

This was an appeal, by the defendants Wyckoff and wife, from a decretal order of the vice chancellor of the first circuit, overruling their demurrer to the complainant’s bill. In November, 1837, Peter Wyckoff and his son Lambert, one of the defendants in this suit, gave their joint and several promissory note to Edmund Smith, for $5000, payable in three years, with semiannual interest. Peter Wyckoff died in 1842, leaving this note unpaid.

This was an appeal by J. Cogswell, one of the defendants, from so much of the decree in this cause as directed the part of the mortgaged premises upon which the appellant held a subsequent incumbrance to be sold first, to satisfy the prior mortgage thereon to the complainant.

This was an appeal from a decision of the Vice chancellor of the eighth circuit, denying the application of the appellants to set aside a master’s report^ as to the surplus moneys in a foreclosure suit, and the proceeding's thereon; and to hav.e the surplus moneys which the Respondent C. H. Bryan had received, under the order of the court, refunded by him.

This was an appeal by John E. Taylor and James P. Cra-mer, from an order of the vice chancellor of the fourth circuit, made in this cause upon the application of the respondent Amos Stafford, setting aside a master’s sale.

This was an appeal by D. S. Jones and H. K. Bogert, two of the executors of Augustine H. Lawrence, deceased, from a decree of the late assistant vice chancellor of the first circuit. The bill was filed in June, 1838, by the surviving executor of John G. Leake, deceased, to recover a debt due to Leake at the time of his death, in June, 1827, from his bankers, A. H. Lawrence and A. N. Lawrence; the former of whom died on the 10th of September, 1828.

This was an appeal by Abraham Sleight, one of the defendants, from a decree of the vice chancellor of the second circuit. The bill was filed by the executors of W. Rider, deceased, who survived his wife, to recover the one fourth part of a legacy given to Mrs. Rider, the sister of the appellant, by the will of her father; which one fourth part of the legacy was charged upon a farm devised to the appellant by such will.

This was an application for an injunction to restrain the defendant from collecting a judgment given for state prison labor, and to restrain the collection of certain notes given as collateral security for the same debt, and also to restrain a suit against the complainants and their sureties for other labor performed under a contract made by them with a former agent of the prison.

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

<p>Where upon the dissolution of a copartnership between K. and L. the former conveyed his interest in the partnership effects to the latter, upon condition that- L. would pay the debts of the firm, and L. subsequently refused to pay such debts upon the ground that he was an infant; Held that the infant could not retain the partnership effects and at the same time refuse to perform the condition upon which they were assigned to him.</p> <p>Held also, that if he elected to rescind the agreement upon the ground that he was an infant at the time it was made, K. had a right to insist that the partnership effects should be applied to the payment of the debts of the firm in the same manner as if the agreement had not been made.; except so much thereof as had been sold to a bona fide purchaser and paid for, without notice of the complainant’s rights,</p> <p>An infant cannot retain property, purchased by him, and at the same time repudiate the contract of purchase under which he received the property, i And where the infant, after he becomes of age, repudiates the sale, the title to the property remains/ in the vendor, as between such vendor and the infant.</p>

This case came before the chancellor upon an appeal by the complainant from the whole of the decree of the late assistant vice chancellor of the first circuit; and also upon a cross appeal by the defendants, Goodhue, Perit and Durand, from so much of the decree as declared and adjusted their proportions of the proceeds of the sale of the steamboat Despatch, as between them and the complainant.

This was an appeal from a decretal order of the vice chancellor of the eighth circuit. In February, 1840, F. M. Haight and three other persons associated together and incorporated themselves, under the general act relative to manufacturing in-corporations, by the name of “ The Genesee Cotton Mills,” with a capital of $50,000, divided into shares of $100 each ; and R. Haight, A. Frost and A. Wolcott were duly appointed the first trustees of the corporation.

This was an application, by G. & W. Hastings, for the payment of $ 133, reported as due to them upon a judgment against the mortgagor, which was the first lien upon the surplus moneys brought into court upon the sale of mortgaged premises. It appeared by the report of the master that Ann Van Cott, one of the defendants, had appeared and filed a claim to the surplus moneys, and that another of the defendants in the suit had appeared by his guardian ad litem.

This was an appeal from a decision of the vice chancellor of the fourth circuit, overruling the demurrers of the defendants to the complainant’s supplemental bill in this cause. The complainant filed his original bill in April, 1842, to obtain satisfaction of a judgment recovered by him against McEwen, one of the defendantS'in this suit, on which judgment an execution had been issued and returned unsatisfied.

This was an.appl ¡cation in the nature of an appeal, from the decision of Master Robinson, in settling the form of'an assignment to a receiver, from the defendant in a creditor’s bill.

This was art appeal from the sentence or decree of the surrogate of the city and county of New-York. The respondent, R. Emmett, was the administrator of T. Lynch, late of New-York, deceased, and the appellant was the personal representative of the wife of T. Lynch ; who survived him and who was entitled to one half of his personal estate.

These cases came before the chancellor upon the separate appeals of the complainant, and of the defendant W. S. Warwick, from two orders of the vice chancellor of the first circuit; the one made in the two first of the above causes, and the other in the last cause.

This was an application, by the complainant, for leave to proceed upon a decree of the assistant vice chancellor of the first circuit, notwithstanding the appeal, unless the appellants should give further security.

This was an application by John Spencer, the complainant, for directions to the substituted trustee of his estate, who had been appointed such trustee, in this suit, to pay to the petitioner an annuity at the rate of $1200 per annum, out of the trust estate, from the time of his marriage.

This case came before the chancellor upon appeal from a decretal order of the vice chancellor of the first circuit. The complainant filed her bill against her husband for a divorce, charging him with having committed adultery with eight different females.

This was au appeal from an order of the vice chancellor of the first circuit, directing the costs of the defendant Selden to be paid out of the surplus moneys arising upon the sale of mortgaged premises. The bill was filed to obtain satisfaction of a mortgage given by the defendant Brugiere, to the respondent D. Selden, and sold and assigned by the latter to the complainant.

This case came before the chancellor, upon an appeal by the defendant from three orders of the vice chancellor of the sixth circuit. The first order appealed from, granted the complainant’s fnotion for leave to amend her bill, by adding the allegations required by the third clause of the 163d rule of this court in relation to bills to obtain divorces. The second order directed the defendant to pay $75 to the complainant, towards the expenses of her suit.

This case came before the chancellor upon an appeal, by the defendant, from an order of a vice chancellor, allowing the complainants to amend their bill, and to retain a ne exeat, which had been issued upon the original bill. The object of the bill was to obtain the specific performance of an agreement to convey lands to the complainants’ testator.

This was a petition by E. C. Scott, one of the defendants, for an order requiring the assignee of the judgment upon which the complainant’s bill was founded, to file a supplemental bill in the nature of a bill of revivor, within such time as should be prescribed by the court, or that the bill in this cause be dismissed with costs.

This was an application by J. Simpson, one of the defendants, to dismiss the complainant’s appeal, upon the ground of irregularity. One irregularity complained of was, that the notices of appeal, which were filed and served, were wrongly entitled.

This was an application by the complainant for an attachment against the defendant in a judgment creditor’s bill, for an alleged violation of the usual injunction granted in such cases, and also for refusing to be sworn before the master.

This was an appeal from an order of the vice chancellor of the first circuit.

This was an application by the defendant, Mary Codwise, for the dismissal of an appeal, by the complainants, from certain parts of the decree of the assistant vice chancellor, in this case, upon the ground that the appeal was not brought within the time, allowed by law, for appealing from interlocutory decrees of vice chancellors.

This was an application by the complainant for a re-taxation of the defendant’s costs, upon a decree for the dismissal of the bill with costs.

This was an appeal from a decision of the vice chancellor .of the first circuit, denying the defendant’s application to take the complainant’s bill off the files of the court, and allowing- the complainant to substitute a -new solicitor to prosecute this suit.

This was an appeal from an order of the vice chancellor of the third circuit, setting aside a master’s sale, under a decree in a foreclosure suit. The premises in question were worth five or six thousand dollars, and were sold by the master, and struck off to the appellant T. W. Newcomb, for $560, the amount claimed by the complainants as due upon the decree, and chargeable upon the premises.

This case came before the chancellor upon appeal. The facts of the case, so far as the same are necessary to understand the decision, are stated in his opinion.

<p>This was an appeal from an order of the surrogate of the county of Suffolk. Elias Smith died and made the respondent, L. W. Lawrence, the executor of his will, and bequeathed his personal estate to J. W. Smith. Subsequently, J. W, Smith also died, having by his will appointed the respondent, L. W. Lawrence, and the appellants, J. L. Smith, C. Smith and L. Livingston, jointly, his executors; all of whom look out letters testamentary thereon. The respondent having neglected to render an account of the estate of the first testator, his co-executors of the will of J. W. Smith, applied to the surrogate by whom the letters testamentary were granted to the respondent, for an order requiring the respondent to render such account; and he was duly cited to render his account accordingly. The parties appeared before the surrogate, and the respondent resisted the application, upon the ground that, as he was a co-executor with the appellants of the estate of the legatee, he could not be called upon by them to render an account, in the surrogate’s court, of the estate of which he was the sole executor. The surrogate sustained the objection, and dismissed the application.</p>

This was an appeal from a decision of the vice chancellor of the second circuit, refusing to set aside an order dismissing the bill of the deceased complainant, with costs to be paid out of his… Held: by the vice chancellor, on the day to which the time for showing cause was extended by this last stipulation. On the 9th of January. 1844, the solicitor for the petitioners appeared at the vice chancellor’s court, at Poughkeepsie, and took the order complained of, ex parte.

This was an application, on the part of J. W. Thompson, one of the defendants, for the re-taxation of the costs of the complainant’s solicitor. An original bill, in the first entitled cause, was filed against the defendants therein, for an injunction restraining proceedings at law, and to obtain a specific performance of an agreement, between the complainant and N. R. Crip^ pen, his father, one of the defendants.

This was an appeal by the defendants, the executors of Bodine, from an order of the vice chancellor of the first circuit, allowing in part the exceptions of the complainant to a master’s report.' The injunction .master, upon the allowance of an injunction to restrain the defendants from proceeding to sell mortgaged premises, under a decree of foreclosure, took from the complainants a bond with sureties, conditioned to pay to the parties enjoined such damages as they might…

The facts of this case and the grounds upon which the application of the defendant, to set aside the sale in this case was denied, and the application to set aside the writ of assistance against him was granted, are stated in the opinion of the chancellor.

This case came before the chancellor upon an appeal by the defendants Trowbridge and Nichols, from an order of the vice chancellor of the eighth circuit, refusing to dismiss the complainant’s bill for want of prosecution.

The notice to the defendants in a creditor’s suit had been served upon them by putting the same into the mail directed to them at their place of residence, according to the provisions of the 191st rule, as amended in the revision of 1844. And the question was, whether the defendants were entitled to double the usual time allowed upon a personal service.

This was an appeal, by th,e complainants, from an order of the vice chancellor of the seventh circuit, overruling a master’s rep'ort, which had allowed several exceptions, for insufficiency, to the answer of Hensdil, one of the defendants.

This was an appeal by S. D. Wilmott, from an order made in this cause, by the vice chancellor of the first circuit, directing the appellant to bring into the master’s office certain account books in his possession, that the receiver appointed in the suit might have the benefit of the same before the master, and that the master might deliver them over to the receiver, if he should deem it proper that the receiver should be put into the possession of them.

Upon the petition of G. Willoughby, a commission of lunacy was issued in this case, and J. Giles was found to be a lunatic.

This was an appeal, by four of the defendants, who appeared and answered in this cause, from a decree of the late vice chancellor of the seventh circuit. The Bill was filed to foreclose a mortgage given by the defendants Chapin, Johnson, Maltby, and Gage, to Hendricks and Chamberlain, as trustees for the heirs and devisees of I. Kendig, deceased, upon certain premises in Seneca county.

UpoN the execution .of a commission of lunacy, W. Willoughby was found to be a lunatic; and his wife was appointed the committee of his person only, and W. W. Sweney was appointed the committee of his estate. An order was also made referring it to a master to inquire and report what sum was proper to be allowed to the wife of the lunatic, as the committee of hig person, for his and her support; in addition to the use of his dwelling house and appurtenances.

This was an appeal from ail order of the surrogate of Putnam county, requiring the appellants to give security for the faithful discharge of their trust, as executors of the estate of J. Colegrove, deceased.

This was au appeal by the administrators of the estate of Lyman Betts, deceased, from the sentence and decree of the surrogate of the county of Kings, upon the final settlement of the accounts of the appellants. Lyman Betts died in 1835, seised and possessed of a large real and personal estate in Brooklyn; where he was domiciled at the time of his death. The amount of his personal estate was between fifty and sixty thousand dollars.

Tjais was an appeal from a decree of the late assistant vice chancellor of the first circuit.

This case came before the chancellor upon an appeal, by the defendant Edwards, from a decree of the late assistant vice chancellor of the first circuit. The facts appear in the report of the case before him, in 1 Hoffman's Chancery Rep. 382.

The bill in this cause was filed for the purpose of obtaining a perpetual injunction, restraining the defendant from using the trade-marks of the complainants.

This case came before the chancellor upori an appeal from a decree of the late assistant vice chancellor, made upon the hearing of exceptions to a master’s report arid for further directions. The defendants W. Spencer and R. S. Corning were trustees of the property of J. Spencer, the 'complainant, the brother of one and brother in law of the other of the .defendants. The defendant Corning put in his answer to the bill; to which answer a replication was filed.

This was an appeal, by the defendant J. Cramp, from a decision of the vice chancellor of the fifth circuit, denying an application to dissolve an injunction, upon a creditor’s bill, so far as respected the appellant’s property. It appeared from the answer of the defendant Cramp, that he was the second endorser upon a business note, made by H. Proud, and endorsed by W. Draper, the other defendant in this suit.

This was an appeal from a decretal order of the vice chancellor of the first circuit, overruling the demurrer of the defendant The bill was filed by H. I}. Cruger, G. W. Strong, and F. De Peyster, all claiming to be trustees under the will of Margaret Douglass, who died in December, 1829.

This was an appeal, by the defendant, from a decree of the vice chancellor of the eighth circuit. In October, 1841, the complainant and D. Simmons gave to the defendant a promissory note, for #167, payable in one year, with interest; which note, as the complainant alleged in his bill, was usurious.

This was an appeal, from a decretal order of the vice chancellor of the first circuit, overruling the plea of the defendant C. B. Morrison. The complainant was a judgment creditor of the defendants J. C. Morrison and C. B. Morrison.

This was an appeal, by the defendants, from a decretal order of the vice chancellor of the seventh circuit. The bill was filed to foreclose a mortgage payable by instalments. The defendants appeared by their solicitor, and suffered the bill to be taken as confessed for want of an answer.

This was an appeal by Manning, Boyd and Becker, three of the defendants, from a decree of the vice chancellor of the fourth circuit. J. I. Becker, the grandfather of the complainant, died in January, 1805. By his .will, he devised a part of his real estate to his daughter 'Caty Borst.

This was an application, on the part of the defendant, to open the order to close the proofs in this case; and for leave to examine certain witnesses whose names had not been furnished until after the examination of the complainants witnesses.

This was an appeal, by the defendant, from a decree of the vice chancellor of the fifth circuit, decreeing the specific performance of a contract. Held: that this was a case, originally, where time was of the essence of the contract, but that it had been waived by the conduct of the party.

This was an appeal from a decree of the vice chancellor of the fourth circuit, dismissing the complainant’s bill of interpleader ; with costs, as to the defendant EUwood, and without costs as to the other defendant.

• This was an appeal by R. Lockwood, one of the defendants in this cause, from a decretal order of the vice chancellor of the first circuit, disallowing exceptions to a report, which report allowed the fourth and fifth exceptions to Lockwood’s answer, for insufficiency.

This was an application, by the defendant W. Skidmore, for the . re-taxation of the complainant’s costs, upon exceptions to a master’s report, on exceptions to a bill for impertinence. Eight exceptions were taken to the bill, and the master allowed them all except one. The complainant excepted to the report, and the vice chancellor disallowed the exceptions which were allowed by the master.

This was an appeal, from the decision of a vice chancellor, in relation to the amount in which the sureties of the next friend should justify, upon an order requiring him to give security for costs.

The bill, in this case, was filed to set aside pertain securities, which were illegal and void at law, as well as in equity, if the allegations in the complainant’s bill were correct. After the filing of the bill here, the defendant instituted a suit at law upon the. securities.

This was an application, on the part of the defendant, to set aside a master’s report, upon a reference under a decree of the court, upon the ground that the master was prejudiced against the defendant-; and because he had been concerned as an attorney in another suit in which similar questions had arisen.

This was an appeal, by the complainants, from a decision of. the vice chancellor of the first circuit, denying their application to amend their bill.

This was an application to establish the will of a feme covert, who was domiciled in the state of Ohio at the time of her death; a commission having been issued for that purpose, under the provisions of the revised statutes.

This was an appeal by X P. Moore, the purchaser at a master’s sale, from an order of the vice chancellor of the first circuit, directing him to complete his purchase of premises which had been sold to him, under a decree of foreclosure. ’ Charles Oakley was the owner in fee of the mortgaged premises, in September, 1838, when he mortgaged them to The North American Trust and Banking Company, to secure the payment of $23,000.

This case came before the chancellor upon appeal, from the decree of the late assistant vice chancellor of the first circuit. The facts were the same as in the case of Champlin & Jones v. Haight & Herring, as reported in 10 Paige's Rep. 274, except that the terms and conditions of the sale were not reduced to writing, and signed by the parties; which in that case the answer of the defendant Haight admitted had been done.

This was an application, on the part of the defendant, to compel the complainant to elect, whether he would proceed in this suit, or in an action at law which had been commenced by the complainant, in the name of another person, as was alleged, for a part of the same subject matter for which this suit was brought.

This was an appeal from a decretal order of the late assistant vice chancellor of the first circuit, overruling a demurrer to the complainant’s bill for a specific performance. The complainant was .the owner of a large tract of land in the city of New-York, bounded by the first avenue on the east and by the third avenue on the west, and extending on both sides of the second avenue from Twelfth-street to Twentieth-street.

This' case came before the chancellor, upon appeal. The facts are sufficiently stated in his opinion, to understand the only legal questions arising in the case.

This was an application for a re-taxation of the costs, upon a special motion. The defendants appeared by separate solicitors ; and the principal objection was to the allowance of two distinct bills of costs.

These were appeals from an order made in these causes, by the vice chancellor of the first circuit. The facts are stated in the chancellor’s opinion.

This was an appeal, by the defendant Sprague, from so much of the order of the vice chancellor of the eighth circuit, allowing the opening of the defendant’s default and permitting him to file and serve his answer, as made it a condition upon which the appellant should be permitted to defend, that he should execute and deliver to the complainant a stipulation to stay the proceedings upon the execution against the complainant, on the judgment mentioned in the bill, until the…

This was an appeal from the sentence and decree of the surrogate of Chenango county, directing the appellant to pay to the respondent a sum of money, as the distributive share of the latter in the estate of Isaac Wooster deceased. The decedent had two children; Curtis, the respondent, and Sarah, the wife of the appellant in this suit.

This case came before the chancellor upon an ex parte appeal, from an order of the surrogate of New-York. The object of the application to the surrogate was to obtain the revocation of letters of administration, with the will annexed, which had been granted upon the estate of a decedent who had died in Ireland, and to be permitted to prove a previous will, in relation to certain personal property of the testator situated in this state.

This was an appeal, from an order of the vice chancellor of the eighth circuit, disallowing exceptions to a master’s report, as to the fourth, fifth, sixth and eighth exceptions to the defendant’s answer, for impertinence. The object of the complainants was to establish an equitable title to land, as against the defendants, who had taken a mortgage thereon, from the holder of the legal title, upon a loan of money.

This was-an appeal from the sentence or decree of the surrogate of Dutchess county, rejecting the claim of the widow of Philip Flagler, deceased, to a distributive share of about $1300, in money, found in the testator’s desk at the time of his death.

This case came before the chancellor upon an appeal from a decree of the vice chancellor of the seventh circuit.

This was an appeal, by the complainants, John A. Ellis and wife, from a decretal order of the vice chancellor of the first circuit, made upon the petition of James Evans, who was not a party to the suit, for the payment, to him, of a part of the fund belonging to the complainants, which arose from the sale of the lands of Mrs. Ellis, under a decree in partition; Evans being the assignee of a bond and mortgage, given upon the premises, by Ellis and wife, subsequent to the…

<p>A third person claiming to be interested in a suit in the court of chinceiy, but who is not a party to such s.uit, has no right to interfere with the proceedings therein, without filing a supplemental bill, to make himself a party and protect his rights.</p> <p>Before any decree or decretal order has been made, in a suit in chancery, by which a defendant therein has acquired rights, the complainant is at liberty to dismiss his bill, upon payment of costs.</p> <p>But after a decree has been made, in a cause, by which a defendant therein has acquired rights, either as against the complainant or as against a co-defendant in the suit, the complainant cannot dismiss his bill without the consent of all parties interested in the decree; nor can the decree be vacated and the bill dismissed, even on such consent, except upon a rehearing, or by a special order to be made by the court.</p> <p>Where a decree has been aifirmed, upon appeal to the chancellor, the vice chancellor is not authorized to vacate the decree, and to order the complainant’s bill to be dismissed; even with the consent of the parties to the suit.</p> <p>Upon a decree for a sale, by a master, for the benefit of some of the defendants in the suit, as well as for the benefit of the complainant, the complainant’s solicitor is entitled to select the master and to place the decree in his hands to be executed, unless the court has directed otherwise.</p> <p>But where the complainant in the suit has no interest in the execution of the decree, or where he consents to its being executed under the direction of a defendant, who is interested in having the sale made, a stranger to the suit cannot object that the decree was placed in the.hands of the master, by the solicitor of such defendant, to be executed.</p>

This was an application to dismiss an appeal from the sentence or decree of the surrogate of the county of Saratoga, upon the ground that such appeal had not been brought within the time allowed by the statute for appealing. The testator, by his will, bequeathed to his wife, who survived him, a legacy of $1000 and all his household furniture and bedding.

This was an appeal, from a decree of the vice chancellor of the eighth circuit, dismissing the complainant’s bill. The opinion of the vice chancellor, containing a statement of the material facts in the case, will be found in 1 Clarke's Chan. Reports, 90.

This was an appeal, by G. Storms, from an order of the vice chancellor of the first circuit, extending the time to redeem certain lands in the city of New-York, sold for assessments and bid off by the appellant, until six months after the final decree in this cause should be made. The bill was filed in February, 1843, by S. Dikeman, the widow of Matthew Dikeman the younger.

This case carné before the chancellor upon an appeal, by the complainants, from a decree of the late vice chancellor of the third circuit, dismissing their bill with costs. The complainants were the administrators of Adam McArthur, who was. a surety for the defendant, J. A. Hoysradt, upon a note given to Silas Miller.

A motion was made in this cause, and in four other suits, brought by the same complainants, against different defendants, for an order that H. Y. D. Yan Epps appear before the examiner, atld produce a certain agreement, in his possession, as evidence on the part of the defendants in the several suits respectively.

This was an appeal, by the complainant, from an order of the vice chancellor of the fourth circuit, dissolving the injunction in this cause in part, as to Colburn and-Smith, two of the defendants.

This was an appeal, by the defendants, from a decree of the vice chancellor of the sixth circuit. The facts in the case, as they appeared from the pleadings and proofs, were as follows: Jonathan Boyer died in January, 1828, seised of a valuable farm at Big Flats, in Chemung county, and of other real property in this state and in the state of Pennsylvania, and was possessed of some personal property.

This was an application,'by the defendant Ward,->ahd'the ;?-'Spencers,'td 'dissól've an injunction, restraining the cbllection of a júdgtoént against' the complainant; which judgment was - held by Ward, as the assignee of the Spencers, under a general assignment for the benefit of creditors.

This case came before the court upon exceptions of the receiver in this suit, to the report of the master, upon passing his accounts. By the decree, the receiver was directed to pass his accounts, and to pay over to the master the balance in his hands, to be disposed of according to the directions of the decree.

This was an application to sot aside the proceedings of the ' complainants in these causes, for irregularity, or to stay the proceedings therein, until the costs of a former suit, for the same matter, should be paid; and also for an order to strike the solicitor of the complainants from the roll of solicitors, for-misconduct in relation to the proceedings in these suits.

The bill in this cause was filed before the vice chancellor of the eighth circuit, in 1838, to foreclose a mortgage. At the time of filing the bill the present vice chancellor of that circuit was the copartner of the complainant’s sqlicitor, and wás conn-. ’ ' ' sel in the suit; and the. bill was regularly taken as confessed against all the defendants therein.

This was an appeal from a decretal order of reference, to appoint a receiver of the property and effects of the judgment debtors, upon a creditor’s bill, and to examine the appellants on oath.

This was an appeal by the defendant A. G. Ransom, from a decree of the late assistant vice chancellor of the first circuit. The complainants, who resided in Orange county, were the executors of I. W.-Tuthill deceased, and as such, held two leases against 0. Wheaton, of Broome county, upon one of which leases there was due to their testator about $700, and upon the other about $100.

This was an appeal, by the complainant, from a decree of the vice chancellor of the eighth circuit, dismissing the complainant’s bill.

This was an appeal, from a decree of the late assistant vice chancellor of the first circuit, dismissing the complainant’s bill. The bill was filed by the complainant, as the receiver appointed in a creditor’s suit against Cowles, Brother & Co., to recover compensation for a loss of the property of that firm by fire, on the 17th. of August, 1839; under an alleged agreement of The Trust Fire Insurance Company to insure the same, for one year from the first of July 1839.

This case came before the chancellor upon the appeal of the complainant, and upon a cross-appeal by J. Sheldon and L. Benedict, two of the.defendants, from a decree of the vice chancellor of the eighth circuit.

This was an appeal from a decree of the late assistant vice chancellor of the first circuit, dismissing the complainant’s bill.

This case came before the chancellor upon appeal, and the facts are stated in the report of the case before the vice chancellor, in Clark’s Chancery Reports, upon a previous application. The lease in question contains no express covenant, the words used are “ demise and lease;” and all implied covenants in a conveyance of real estate are abolished, and, therefore, the complainant has no remedy either in this court, or in a court of law.

This was an appeal’ frotó á decree of the Vice chancellor of the fifth circuit.

These cases came, before the chancellor upon appeals from decrees of the vice chancellor of the fifth circuit, dismissing the complainant’s bills against the defendants respectively, with costs, upon the ground that the amount in controversy in each suit, exclusive of costs, did not exceed $ 100.

<p>This was an appeal, by G. Lawrence, one of the defendants, from a decree of the late vice chancellor of the seventh circuit. The complainants were judgment creditors of J. Hasbrook, and an execution upon their judgment having been returned unsatisfied, they filed an ordinary creditor’s bill against him, before the vice chancellor of the seventh circuit, on the 15th of July, 1837, and the subpoena and injunction were served on the defendant in' that suit on the 18th of the same month. To that bill J. Has-brook put in an answer, to which a replication was filed; and proofs were taken in that cause. The answer admitted the recovery of the judgment and the return of the execution unsatisfied, and that the judgment still remained in full force. It also stated that the defendant in that suit, on the first of July, 1837, made .an assignment to T. Wood and P. Hasbrook, of certain goods, chattels and other property, specified in a schedule annexed to such assignment, in trust to sell the same and apply the proceeds thereof, first, to the payment of a note of $>700 to the Bank of Salina, signed by Jaquith & Case, as the sureties of the assignor; secondly, to pay certain other debts, in the order specified in the assignment; and thirdly, to pay the residue of the debts of the assignor ratably. But whether, the defendant in that suit had any property, equitable interests, or choses in action, at the time of the filing the bill in that cause, except his supposed contingent interest in the bond and mortgage hereafter mentioned, did not appear. That suit was still pending and undetermined at 'the time of making the decree, in this cause, which was appealed from.</p> <p>The bill in this cause was filed in February, 1838, against G. Lawrence, and against T. Wood and P. Hasbrook. And after stating therein the filing of the creditor’s bill against J. Has-brook, and the putting in of his answer thereto, and the filing of a replication to such answer, the complainants in this suit stated the execution of the said assignment, and the terms thereof, and that the value of the assigned property was about $2000. They also stated that the $700 note to the Bank of Sa-lina was dated on the 6th of June, 1837, and was payable in ninety days from its date; that on the first of July, 1837, J. Hasbrook assigned to Jaquith & Case a bond and mortgage for $750, against E. C. Adams, upon condition that they should pay the $700 note to the bank; that T. Wood and P. Hasbrook refused to pay the note out of the proceeds of the property assigned to them, and requested the sureties in the note to pay the same, and to keep the bond and mortgage which had been assigned to them upon that condition; and that Jaquith <fc Case subsequently procured the note.to be paid by the defendant G. Lawrence, and in consideration thereof, sold and assigned the bond and mortgage to him, to be'collected at his own risk. But the complainants alleged that Lawrence, in making such purchase, acted as the agent of Wood, and took the assignment for his benefit, and to prevent them from obtaining such bond and mortgage, to be applied upon their judgment. This allegation in the bill, however, was fully denied by the answer of the appellant; who stated that he paid the note with his own funds, and took the assignment for himself, and without notice of the complainant’s debt, or that they had filed a creditor’s bill against J. Hasbrook. The complainants insisted, in their bill, that the $700 note should in equity have been paid out of the proceeds of the property assigned to Wood and P. Hasbrook, in order to give them the benefit of the bond and mortgage, under the creditor’s bill. They therefore prayed that the defendant Lawrence might be decreed to transfer the bond and mortgage to a receiver, that they might have the benefit thereof towards satisfying their judgment; or that the defendants Wood and P. Hasbrook might be decreed to deliver to a receiver, for the complainants’ benefit, an amount of the assigned property equal to the amount of the bond and mortgage, or for such other relief as they might be entitled to upon the case made by their bill. The cause was heard upon pleadings and proofs as to the defendants Lawrence and P. Has-brook; Wood, .the other defendant, having died before the hearing. The vice chancellor declared and decreed that the complainants were entitled, in equity, to the bond and mortgage; and that the defendants, or such of them as had the custody or control of the bond and mortgage, or of the proceeds thereof, should deliver over the same to the complainants orto their solicitor ; or if the same were in the hands of the receiver appointed in this cause,, that he deliver the same to the complainants or to their solicitor; to the end that the same might be applied towards the payment of their judgment against J. Hasbrook; and that the defendants pay to the complainants their costs.</p> <p>The defendant Lawrence was a bona fide purchaser of the mortgage and bond from Jaquith & Case, without notice of the complainant’s claim, or of the manner in which the bank note was secured by the assignment. He had a right to purchase the mortgage, and cannot be required to surrender it to a junior creditor, unless he is fully paid the amount of his advances. The complainants never offered to pay Lawrence the amount of his advances, nor did they require him to give up the mortgage upon any such condition. Jaquith & Case were not compelled to resort to the assignment, nor is Lawrence. Lawrence states in his answer, that he offered, before the filing of their bill, to assign to the complainants the bond and mortgage, on receiving the amount of his advances. This allegation is responsive to the bill. ( Woodcock v. Bennett, 1 Cowen, 711.) Neither Lawrence nor Jaquith & Case would be bound to resort to the assignment for the satisfaction of their debt, unless it clearly appeared that they could have rendered it as immediately available to discharge their liability as the bond and mortgage. The rule that a creditor is compelled to resort to a security upon which a junior creditor has no lien, only applies to cases where such resort will not in any degree prejudice or injure such senior creditor. Where there are two creditors, one of whom can obtain satisfaction only from the visible property of the debtor, and the other can subject to the payment of his debt not only that but a special fund created for his indemnity; although a court of equity will compel the latter to resort to the special fund, or will subrogate the former to his right to the fund, yet the former creditor must require the latter to resort to the special fund, before he has received satisfaction from the visible property. ■ If he waits, he has no equity against a third creditor who obtains an assignment of the special fund. Where a creditor has a lien upon two funds for the payment ■Of his debt, chancery will not compel him first to exhaust f he fund which a junior creditor cannot reach, if the senior creditor will thereby be injured, or if he offers .to substitute the junior creditor in his place, on being paid the amount of his debt. (1 Paige, 185.) The mortgage was assigned to Jaquith & Case, before the complainants filed their creditor’s bill against Joseph Hasbrook; the complainants, therefore, obtained no lien upon the mortgage itself, but only upon the equity of redemption of the mortgage, and that liable to be defeated on a failure of J. Hasbrook to pay the $700 note, which would vest the title of the mortgage absolutely in Jaquith & Case. (8 John. Rep. 96. 7 Cowen, 290.)' .</p> <p>Jaquith & Case having two funds for their security, as signers of the $700 note, to wit, the assignment to Wood and Hasbrook, and the assignment of the bond and mortgage against Adams; and the ‘complainants having a lien on only one of these funds, to wit, the bond and mortgage; the court would h,ave compelled Jaquith & Case, had they continued the owners of the bond and mortgage and liable on the note, to obtain their relief from that fund or security which the complainants could not touch, to wit, the assignment of the goods to Wood and Hasbrook, in order to give to the -complainants the benefit of the bond and mortgage. (1 Story’s Eq. 527, 528, 530,1. Cheesborough v. Millard, 1 John. Ch. 12, 409. Hopk. Ch. Rep. 460, 468. Evertson v. Booth, 19 John. Rep. 486, 492. 1 Story’s Eq. 588, 9, 590, 1.) The assignment of the bond .and mortgage.by J. Hasbrook, to Jaquith & Case, was a mere mortgage of such bond and mortgage, for the security of Jaquith & Case. (Brockway v. Wells, 1 Paige, 617.) The defendant Lawrence did not acquire and could not acquire any greater right or interest in the bond and mortgage, by the assignment to him, than Jaquith & Case had; and Lawrence is subject to the same equities existing in behalf of the complainants that Jaquith & Case would be, had they never assigned the bond and mortgage. (2 Paige, 206. Pendleton v. Fay, 1 Id. 131, 6, 7.) Lawrence took the assignment of the bond and mortgage with notice of the complainants’ 'claim, and in fraud of their equitable and just rights. (2 Paige, 205.) If the complainants are not entitled to the bond and mortgage, they are entitled to the amount secured by such bond and mortgage, and interest, out of the avails of the property assigned to Wood and P. Has-brook, and to call $485 and interest, part of such avails, from the hands of Lawrence, and the balance from J: Hasbrook. (1 Story’s Eq. 546.) Lawrence purchased, or pretended to purchase, the bond and mortgage pendente lite; and although it may have been for a valuable consideration, he is affected in the same manner, and to the same extent, as though he had had actual notice of the complainants’ bill and claim against J. Hasbrook. (1 Story’s Eq. 393,4, and authorities there cited. Muncey v. Ballou, 1 John. Ch. 566. 1 Story’s Eq. 150.)</p>

<p>This was an appeal, by the defendants, from a decree of the vice chancellor of the eighth circuit, setting aside a conveyance, from the defendant Wilcox to his co-defendant. Sawyer, as fraudulent and void, as against the creditors of the grantor. Previous to the fourth of July, 1828, Wilcox was the owner and in the actual possession of the premises in controversy, a house and lot in Rochester, subject to two small mortgages. On that day he executed a conveyance of the premises to Sawyer, his brother-in-law, for the alleged consideration of $1800.. The deed Wilcox acknowledged and caused to be recorded in September thereafter. Wilcox continued to occupy the premises until he removed from the state about five years after-wards, with the exception of one year, when the premises were rented by him. In January, 1829, Sawyer executed to Wilcox a power of attorney, authorizing him to mortgage or lease the premises, for any 'sum or sums of money, or for any time or term of years which he might deem fit; or to sell and convey the premises to any person, if he should think proper to do so. Under this power Wilcox mortgaged the -premises to Sibley & Field, in February, 1829, to secure a debt of his own to them, of $440. At the time of the date of the deed, in July, 1828, Wilcox owed about $1200, in addition to the two mortgages then upon the premises, and had no other visible property; which debts could not be collected.. In 1831 a judgment was entered in the supreme court, upon a bond and warrant against Wilcox, in favor of the complainants, given to secure them as his sureties upon notes which were made subsequent, to the deed of July, 1828; on which judgment there remained due to them, in March, 1836, about $740, for payments which they had been compelled to make upon two of the notes. For the amount thus due, they issued an execution to the sheriff of Monroe county; but Wilcox had no property on which the execution could be levied, except the premises specified in the deed to Sawyer. In July, 1833, Sawyer paid the amount of the mortgage given to Sibley & Field; and he paid and took an assignment of the two mortgages which were upon the premises previous to the conveyance of July, 1828. In July, 1833, he went into possession and made some improvements, and was in possession of the premises at the time of filing the bill in this cause, the latter part of March, 1836. In 1835, the complain*ants employed J. C. Swan to endeavor to obtain satisfaction of their debt, from the defendant Wilcox, who then lived at Cleveland. Swan made a conditional bargain to take certain village lots in Michigan, provided the transaction was ratified by the complainant. This transaction the defendants contended amounted to a satisfaction of the amount due upon the judgment. The cause was heard upon pleadings and proofs. The .vice chancellor decided and decreed that the deed of July, 1828, from Wilcox to Sawyer, was made to defraud the creditors of Wilcox, and was fraudulent and void as against the complainants, and should be set aside; that the interest of Sawyer in the premises was a mere mortgage interest, to the extent of the three mortgages mentioned in the pleadings,- and that having entered into possession under the fraudulent deed he was not'entitled to payment for his improvements. He directed an account, therefore, of the rents and profits and of the amount due on the mortgage; and that, upon the payment of the balance which might be found due to Sawyer upon the mortgages, the complainants should be substituted in his place as to the amount thus due, and that the premises be sold by a master for the payment of the amount thus found due, and the amount due to the complainants on their judgment; and that the defendants pay to the complainants their costs of this suit.</p> <p>If the conveyance in question be deemed fraudulent as to creditors, at the time of its execution, the complainants being subsequent creditors, cannot impeach it, without showing express fraud. (1 Dane’s Ah. 628, .620. 12 Ves. 14T, 155.) The defendant Sawyer is a bona fide purchaser, and entitled to be protected as such. The consideration was good. (1 R. L. 77 § 6. Jackson v. Peck, 4 Wend. 304. Seward v. Jackson, 8 Cowen 406.) If the conveyance was fraudulent in fact, the onus was upon the complainant to prove that Sawyer took with notice. (Seymour v. Strong, 1 Hill, 563.) Notice is effectually disproved by the answer. (Woodcock v. Bennett, 1 Cowen, 743. Cunningham v. Freeborn, 11 Wend. 240.) The transaction between Swan, the agent of the complainants, and Wilcox, in 1836, was an accord and satisfaction. (Chit, on Cont. 275. Hunt v. Silk, East, 448. Commonwealth v. Henderson, 15 Mass. 329.) The bill concedes that Sawyer is a bona fide mortgagee in possession. As such he is entitled to be credited in his account with interest, and all expenditures for repairs, improvements, taxes .and assessments. (3 Powell on Mortgages, 956.)</p> <p>The deed from Wilcox to Sawyer was executed to hinder, delay and defraud creditors, and is therefore void. The complainants, as subsequent creditors, have a right to impeach it. The power of attorney given by Sawyer to Wilcox, vested in Wilcox the legal interest in the pro'perty as to his creditors; no consideration having been actually paid by Sawyer for the lot. The law will imply a trust in favor of the creditors of Wilcox. If the deed is void, our judgment is a lien, and we are entitled to come here to remove the fraudulent incumbrances; even without execution. Sawyer is bound to account for the rents and profits from the date of the deed. The possession and interest of Sawyer commencing in fraud, he is not to be allowed for any advances made, or improvements put upon the premises, they being done in his own wrong and at his peril. As the complainants called upon Sawyer, before the commencement of the suit, and informed him of their rights and asked discovery, &c., he must pay the costs of suit.</p> <p>Swan had no authority to make the settlement which is set up as an accord and satisfaction. If Swan originally had power to make this settlement, such power was virtually revoked by the commencement and pendency of this suit, of which Wilcox had notice. The commencement of the suit altered the state of facts existing when the power was conferred, and this change being known' to the defendants, and unknown to Swan, the settlement made with him under such circumstances was a fraud. Wilcox, in any event, practised a gross fraud upon Swan in getting the notes. The agreement was not, by its own terms, to be binding, unless approved by the complainants; and it is, therefore, not binding, because they never have affirmed it. The appointment of a new attorney here, to issue execution and enforce the judgment, implies a revocation per se 'of the authority of any prior attorney. (6 Pick. 198.) The notes, given up by Swan, are of no validity, being merged in the judgment; and no authority was given to Swan to cancel the judgment. Such authority must have been by deed, and must be clearly proved. (1 Tenn. 209. 6 John. Rep. 51. Gary and Morgan v. Turner, 6 Ld. Ray. 331. Theobald on Principal- and Surety, and Principal and Agent, 221.)</p>

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

This was an appeal, by the complainants, from a decision of the vice chancellor of the first circuit, denying an application for an attachment and sequestration against the defendant N. Rogers, to compel the performance of the decree in this cause. The bill was filed by the representatives of a creditor of A. Gracie deceased, against N. Rogers, as his executor, to recover a debt due to them from his testator.

This was an application to dissolve an injunction granted by the vice chancellor of the eighth circuit, restraining the defendant from committing trespasses and waste upon the indian lands of the Cattaraugus reservation, or interfering with the possession of the indians residing on such reservation.

This case came before the chancellor upon appeal from a decree dismissing the bill of the complainants. The facts of the case, as established by the pleadings and proofs, are stated in the opinion of the chancellor.

This was an appeal, from an order of the vice chancellor of the first circuit, refusing to dissolve an injunction restraining the defendants from proceeding in a suit at law brought by them against the complainants. The injunction was granted upon a mere bill of discovery to aid the complainants in their defence in the suit at law; and the application to dissolve the injunction was denied, upon the ground that exceptions to the answer, for impertinence, had been filed.

This was an appeal by D. Capron, one of the defendants, from a decree of the late vice chancellor of the seventh circuit, setting aside a statute foreclosure of a mortgage, with costs. In 1828, the defendant, Elisha Capron, who was a widower, having two sons by a former wife, intermarried with Sabra Jencks, a maiden lady, who had considerable property; and who died in 1834, without having had any issue.

This was an application, on the part of the complainant, for a re-taxation of the costs of the defendants^ solicitor, upon the dismissal of the complainant’s bill with costs.

This was an appeal, from an order of the vice chancellor of the first circuit, denying an application, of the defendants, to dissolve the injunction which had been issued in this cause; and also denying their application that the complainants should give security for the costs and damages which might result from the delay .caused by such injunction.

In this case a commission of lunacy was issued, upon the petition of G. S. Willoughby, one of the grandsons of the alleged lunatic, and the jury found that Giles, at the.time of taking the inquisition, was of unsound mind, and was incapable of conducting his own affairs in consequence of such unsoundness of mind, and that he had been so incapable for one year preceding.

This Was Un áppé'ál; froth the sentence and order of the surrogate of the county of Washington, directing that letters testamentary be granted to W. McGeoch, one of the executors named in the will of E. Cook, 'deceased.

This wás an appeal, from an order of the vice chancellor of the first circuit, directing the demurrer to the complainants’ bill to be taken from the files of the court, and that the defendants put in an answer; and that their proceedings in a suit at law, against the complainants, be stayed until after answer.

This case came before the chancellor, upon an appeal from an order of the vice chancellor of the first circuit, appointing a receiver, upon a creditor’s bill. The complainant’s solicitor neglected to serve a copy of the 191st rule, upon the defendant, at the time of the service of the subpoena.

This was an apppeal from an order of the vice chancellor of the first circuit, overruling the defendant’s plea and demurrers to the bill in this catise. The complainant was the general assignee of all the property and effects of A. Brower, for the benefit of the creditors of the latter, by an assignment in trust executed on the 21st of May, 1841.

<p>This was an application on the part of the 'defendant Sack-ett to open the order which had been entered closing 'the proofs; and that he might be permitted to examine his co-defendant as a witness to prove the defence stated in his answer. The facts sufficiently appear in the opinion of the chancellor.</p>