Volume 2 — Barbour's New York Chancery Reports

This was an application to dissolve an injunction, upon the matter of the bill only, or to modify the same in conformity to the rights of the… Held: sufficient-water power ■ to- propel twenty .runs of such millstones,= and- had a good right to convey the same; that at the time-of the conveyance by him, .to the company,.his saw mill had but-one saw, and required water power only-for one saw, but-that he - had. subsequently put in- a second saw,- and. the necessary machinery,…

This was a petition, by the mother of certain infants, praying that she might be appointed their special guardian, for the purpose of selling their real estate. The father of the infants, by his will, devised his real and personal estate to the petitioner, his wife, for life; and directed her, out of the avails thereof, to support and educate their children. And, after her.death, the property was devised and bequeathed to the children, in equal proportions.

This was an appeal, by the defendant Rowley, from a decretal order of the vice chancellor of the first circuit, overruling a demurrer to the bill of the complainants. In 1812, W. Radcliff purchased of G. Van Benthuysen a lot of land in Otsego comity, and received from him a conveyance in fee, with warranty. Radcliff gave back a mortgage, on the west 260 acres of the lot, to secure a part of the purchase money.

This was a creditor’s suit. E. L. Fancher, for the complainant, applied for an order of reference, to a master, to appoint a receiver, and for the examination of the defendant on oath, before the master, in the usual manner.

This was an application, by the complainants, for leave to proceed with a reference, ordered by the vice chancellor, pending an appeal brought by the defendants.

This was an application by S. Ingraham, ¿? siiarger to the suit brought in this court by H. G„ HhiJonas In-graham and Daniel Bolles, to have a demand which he had against a firm in which the defendants were partners, paid to him out of their funds, in the hands of the receiver.

This was ail application, by the complainant, for the appointment of a receiver upon a creditor’s bill, as against the defendants Dakin and W. W. Mumford, the judgment debtors.

This was a submission, by the parties, in the nature of an application to dismiss an appeal upon the ground that the chancellor had not jurisdiction to hear it. A petition was originally presented to the chancellor, not only asking directions that the late assistant register should transfer, to the petitioners, property which he held in his official character, but asking further relief against the assistant register personally.

This was an appeal from a decision of the circuit judge of the first circuit, aifirming the sentence and decree of the surrogate of the city and comity of New-York, -admitting the will of William Jauncey, deceased, to probate, as a valid will of real estate, and allowing it to be recorded. The will bore date in May, 1825, and was propounded for probate, as a will of real estate, under the provisions of the revised statutes, in 1835.

This was a motion for a decree, in a mortgage case, upon a master’s report showing that the sum of $>190,22^ was due to the complainant.

This was an appeal from the decision of a vice chancellor, in a mortgage case, which decision was in favor of the defendant. And the cause was on the calendar for argument, in the fourth class. No affidavit of merits having been filed by the defendant,

This was an appeal from an order of the vice chancellor of the third circuit. The complainant filed her bill to obtain a divorce, for the alleged adultery of the defendant, and obtained a decree by default.

This was an application by J. Crary, one of the defendants, to dismiss the hill for want of prosecution. The bill was filed, against the widow and hens of the owner of the equity of redemption in the mortgaged premises, and against Crary, to foreclose a mortgage.

This was an appeal, from an order of the vice chancellor of the. seventh circuit, allowing the complainant to amend his bill. The object of the bill was to have a bond and mortgage, which were alleged to be usurious, given up and cancelled. And the bill contained a prayer for an injunction, restraining the defen dant from proceeding in a suit at law upon the bond.

<p>This ivas an appeal from an order of the vice chancellor of the first circuit, founded upon exceptions to a master’s report. The complainants were judgment creditors of the defendant, who under his father’s will was entitled to an annuity of two thousand five hundred dollars for life, payable semi-annually out of the income of real and personal estate in the hands of trustees. On the day upon which a semi-annual payment of the annuity became due, and before it was received by'the defendant, the complainants, whose execution had been returned unsatisfied, filed their bill in this cause to reach the defendant’s interest in the annuity, and obtained the usual injunction restraining him from receiving, collecting, or intermeddling with his property, either in his own hands, or held in trust for him. The defendant moved to dissolve or modify the injunction. And the vice chancellor refused to dissolve it. But he referred it to a master to ascertain and report what was a reasonable amomit per annum for the support of the defendant and his family; and directed that upon the coming in and confirmation of his report the injunction should be modified, so as to enjoin and restrain the defendant only as to so much of the annuity, payable to him under his father’s will, as should exceed the . amount which was necessary for the reasonable maintenance and support of the defendant and his family. The master reported that the whole annuity of two thousand five hundred dollars per annum was a reasonable amount for that purpose; although it appeared that the defendant had no children, and had no other family than himself and wife. But it also appeared, by the evidence before the master, that the defendant had never been brought up to any business; and that he had lived in his father’s family, and entertained the idea that a fortune would be provided for him, so as to render it unnecessary that he should follow any business pursuits. The vice chancellor modified the report of the master, so as to allow to the defendant only fifteen hundred dollars a year, for the support of himself and his wife, and modified the injunction only so far as to permit the defendant to receive and use seven hundred and fifty dollars of the half year’s annuity which became due and payable on the day of the filing of the complainants’ bill. From this last order the defendant appealed.</p>

This was. an, application by the. defendant Smith,, to open; a •decree which had been duly entered and. enrolled,, and, to-let íiim iri to deferid the' suit. The bill' Was filed t'ó foreclose & rifoftgage, given to W. Smith by J. Hebárd, tipbn á lot in Chautauque county, in Match; 1833; Which lot wás then oWired by the mortgagor, brit wás Conveyed by him to the defendant C. Smith, with warranty, in March, 1836.

This was an appeal, by the executor of the last will and testament of A. Stagg deceased, from the sentence or decree of the late surrogate -of the city and county of New-Yorb. By the will of the testator, who died in 1835, he devised and bequeathed ad his estate, real and personal, to bis executors, in trust to sell the same, and until such sale, to receive the rents, profits and income thereof, for the purposes of his will, and upon the following trusts : First.

This was an application for a new commission of lunacy, to enquire as to the soundness of mind of C. Lasher. A commission had been issued, and executed, in which the jury found she was not a lunatic. But the commissioners all certified that, from the testimony adduced on the execution of the commission, as well as upon personal examination and inspection, they had no doubt she was a lunatic and of unsound mind, so as to be incapable of governing herself or managing property.

This was an application on the part of the complainant to take the demurrer, filed by the defendant, off the files of the court, with the costs of the motion; and for such other or further order or relief as the court should think proper to grant The bill stated that the complainant and defendant were joint owners of a schooner, engaged in the transportation of passengers and freight between New-York and Norfolk, under the charge of the defendant.

This was an appeal from an order of the vice chancellor of the first circuit, dissolving an injunction.(a) A. Golsh was formerly the maker and vender of a particular kind of friction or loco foco matches, in the city of New-York; which matches he put up in small brown paper boxes, with á moveable cover, of the same material, covering about one third of the box from the top downwards.

This was an appeal to the chancellor from a decree of the surrogate of the county of Ontario. And was placed upon the calendar, in the fourth class,- to be argued ex parte.

This was an appeal from an order of the late vice chancellor of the first circuit, overruling a demurrer, of the defendant Edgar, to the complainant’s bill.

This was an appeal from an order of the late vice chancellor of the first circuit, denying the defendant’s application to set aside an injunction for irregularity. The complainant filed his original bill to wind up the affairs of a copartnership, and to restrain further proceedings by the defendant in a court of law.

This was an application, on the part of the defendants Suydam, Sage & Co., who were judgment creditors of the mort gagors, S. & W. Hildreth, to renew a motion to open the order taking the complainant’s bill as confessed against them and the decree of foreclosure in this cause; or that the complainant might be decreed to redeem their judgment which was a lien upon the mortgaged premises.

This was an application by the defendant S. T. Hinds, for a retaxation of the complainant’s costs upon exceptions to the defendant’s answer for impertinence. The complainant took three exceptions to the answer; all of which were referred. The master disallowed the first exception, but reported that the second and third were well taken.

This was an appeal from a decree of the late vice chancellor of the second circuit; allowing a demurrer, and dismissing the complainant’s hill as to four of the defendants.

This was an appeal from an order of the vice chancellor of the first circuit, directing the appellant to receive and pay for the premises, which he had purchased at a master’s sale, or that the premises be re-sold, at his expense and risk. The premises were sold under a decree of foreclosure, and the appellant, B. Melick, who was one of the defendants in the foreclosure suit, became the purchaser.

This was an application, by the appellant, to set aside a decree of affirmance. The bill was filed by the executors of W. Aikin, deceased, to foreclose a mortgage, given by the defendant to their testator, upon the undivided twentieth part of a tract of land in the town of Greenbush, to secure a part of the unpaid purchase money of the premises.

This was an application, by the complainant, and by her next friend, for ad interim alimony; and for an advance of money, to be made by the defendant, to enable them to carry on this suit, against him, for a separation from bed and board.

This was an appeal, from a decree of the late assistant vice chancellor of the first circuit. The bill was filed to foreclose a mortgage given by Charles H. Hall to N. W. Stuyvesant, in September, 1824, to secure the payment of $4,666, at the expiration of twenty years, with interest thereon annually. This mortgage was upon a block of land in the city of New-York, containing fifty-six lots. The mortgage was duly recorded soon after its date.

This was an appeal, from an order of the surrogate of the county of Rensselaer, directing the sale of the real estate of J. J. Yan Alstyne, deceased. The petitioners, together with the widow of the decedent, were appointed administrators of his estate, in September, 1834. In June, 1835, they applied to the surrogate for the sale of the real estate, or a part of it, for the payment of debts.

<p>Previous to the revised statutes, a judgment in a court of record, in this state, was a lien upon the lands of the judgment debtor from the time of the entry thereof; whether docketed or not. But if the judgment was not properly docketed, it did not affect the lands of the judgment debtor, as against subsequent purchasers or mortgagees.</p> <p>But even as to them, the undocketed judgment was entitled to priority in equity, if the purchaser or mortgagee had notice of its existence at the time of his purchase, or when he took his mortgage.</p> <p>And the first judgment was entitled to a preference, although not docketed, over the lien of a junior judgment which had been docketed. But if the land of the debtor had been sold by the sheriff, under an execution upon the junior judgment, to a purchaser who had no notice of the prior judgment, such purchaser took the land discharged of the lien of the elder judgment.</p> <p>But under the revised statutes, no judgment will affect any lands, tenements, real estate, or chattels real, or have any preference as against other judgment creditors, until the record thereof has been filed and docketed.</p> <p>The effect of the new provisions of the statute, is to prevent the common law lien of the judgment from attaching at all upon the real estate of the judgment debtor until the judgment has been actually docketed; and not merely to protect bona fide purchasers and incumbrancers who had no notice of the existence of the judgment when their interest in, or liens upon, the real estate of the judgment debtor accrued, And the provisions of the act of May 14, 1840, on .this subject, are also in. accordance with this construction -of the revised statutes.</p> <p>The court of chancery may enforce an equitable lien, either upon a legal, or upon an equitable estate in lands.</p> <p>And where the common law, or' a statute, creates a lien upon $ legal interest in> land, the court of chancery, by analogy, sometimes declares and enforces a similar lien upon an equitable estate therein.</p> <p>But where the lien is created by statute, and the lien itself, as well as the estate-against which it is sought to be enforced, is purely legal, chancery is-not authorized to extend the lien- to cases not provided' for by the' statute.</p> <p>The fact that an error, which occurred in the docketing of a judgment, was the, error of the clerk, and not the fault of the judgment creditor, or of hisattorney, will not authorize the court of chancery to interfere, to deprive another judgment creditor of his legal priority, if he has obtained one, by such error.</p> <p>Although the statute respecting the docketing of judgments does-not declare, in express terms, that the judgment shall be entered by the clerk, in the alphabetical docket, under the letter corresponding with the surname of the judgment debtor, yet such has been the practical construction which has been given to the statute for more than a quarter of a century; and it is the only sensible construction, which can be given to it. It was accordingly</p> <p>Held., that the docketing of a judgment against P. S., under the letter P., the initial ' letter of his Christian name, instead of the letter S., the initial letter of his surname, was not even a substantial compliance with the requirements of the statute.</p> <p>It is a settled principle of the law of partnership, that the partnership effects are to-be first applied to the payment of the debts of the firm, and to equalize the. claims upon the different copartners in relation to the fund. In other words,, the separate-estate or interest of a copartner in any of the copartnership property, is only his share of that part of the copartnership effects, or of the proceeds thereof, which remains, after the debts of the firm and the demands of his copartners, as such, are satisfied.</p> <p>And if one of the copartners has paid more than his share of the partnership debts, he has a claim upon the partnership property, which in equity is paramount to-the ". claims of the separate creditors of his copartner.</p> <p>Where real estate is conveyed to copartners, in their individual names, for the use and benefit of the firm, or is so conveyed to them in payment of debts due to the partnership, the legal title vests in the grantees thereof, as in an ordinary conveyance of real estate. And,, by the common law, where land was purchased with copartnership funds, for copartnership purposes, and Was conveyed to all the partners, generally, in fee, it would, at law, create a joint tenancy; so that neither could convey any more than his share of the land, during the lives of his copartners. And upon the death of either of the copartners, without having severed the joint tenancy by a conveyance, the legal title to the whole of the land would survive to the other copartners.</p> <p>But under the statutes of New-York relative to joint tenancies, the several copartners, to whom such a conveyance was made, would become tenants in common qf the legal title. And upon the death of either, the undivided portion of the legal title, thus vested in the deceased partner, would descend to his heirs at law; without reference to the equitable rights of the several partners, in the land, as a part of the property of the firm.</p> <p>ánd a bona fide purchaser, or mortgagee, who obtains the legal title to partnership lands, or to an undivided portion thereof, from the person who holds such legal title, and without notice of the equitable rights of others in the property, as a part of the funds of the copartnership, is entitled to protection in courts of equity, as well as in courts of law.</p> <p>Where real estate is purchased with partnership funds, for the use of the firm, and without any intention of withdrawing the funds from the firm for the use of all or any of the members thereof as individuals, such real estate in England is considered and treated, in equity, as the property of the members of the firm collectively; and as liable to all the equitable rights of the partners, as between themselves. And for this purpose the holders of the legal title are considered, in equity, as the mere trustees of those who are beneficially interested in the fund; not only during the existence of the copartnership, but also upon the dissolution thereof.</p> <p>It is the general rale, in England, that real estate belonging to a copartnership, un-' less there is something in the partnership articles to give it a different direction, is to be considered in equity as personal property; and upon the death of one of the copartners, and after the debts of the firm have been paid, and the equities have been adjusted between the several members of the firm, it goes to the personal' representatives of the deceased partner, and not to his heirs.</p> <p>The American decisions, in respect to real estate purchased with partnership funds, or for the use of the firm, establish two principles: First, that such real estate is in equity chargeable with the debts of the copartnership, and. with any balance which may be due from one copartner to another, upon the winding up of the affairs of the firm; Secondly, that, as between the personal representatives and the heirs at law of a deceased partner, his share of the surplus of the real estate of the copartnership, which remains after paying the debts of the copartnership, and adjusting all the equitable claims of the different members of the firm as between themselves, is to be considered and treated as real estate.</p> <p>Although a court of equity considers and treats real property as a part of the stock of the firm, it leaves the legal title undisturbed, in this state, except so far as is necessary to protect the equitable rights of the several members of the firm therein.</p> <p>The separate creditors, of individual partners, have no equitable right to any part of the partnership property until the debts of the firm are provided for, and the rights of the partners, as between themselves, are fully protected.</p> <p>The general lien of a judgment creditor, upon the lands of his debtor, is subject to all equities which existed against such lands, in favor of third persons, at the time of the recovery of the judgment. And the court of chancery will so control the legal lien, of the judgment creditor, as to restrict it to the actual interest of the judgment debtor in the property; so as fifily to protect the rights of those who have a prior equitable interest in such property, or in the proceeds thereof</p>

This was a petition, by Charles Burr, to supersede the commission of lunacy so far as to enable him to make a will disposing of his estate in case of his death. By the death of his father, in 1844, the petitioner became entitled to a very large estate; consisting mostly of personal property.

This was an appeal from the sentence and decree of the surrogate of Ontario county, upon the final settlement of the account of the appellant, as the executor of J. Tinkham, deceased. The testator died in 1822, leaving his wife and three children surviving him. By his will he bequeathed to his widow the use and occupation of his personal property; and directed that the Baptist Church in Palmyra should have the guardianship and control of such use, for her benefit.

<p>This was an appeal, from an order of the surrogate of the county of Greene, appointing Polly Byrne guardian of the, person and estate of James Byrne, an infant. The facts in the case, as they appeared in the return of the surrogate, were as follows: James Byrne, the father, of the infant, married the daughter of John Bennett, the appellant, in 1843, and died at the house of his father-in-law, in March, 1845, leaving his wife surviving him. By his will he bequeathed the income of §1500 to his mother for life, and directed the principal of that legacy to be equally divided between his two sisters, after his mother’s death. And the residue of his personal estate he bequeathed to his wife, and to his heir, born after his death; with a limitation over to his mother and sisters in case his wife should die without leaving any heirs by him. Four days after the death of James Byrne, the infant was born. And its mother, Abigail Byrne, was sick from that time until her death; which occurred in June of the same year. She had made her home at her father’s, from the time' of her marriage until her death ; her husband, while living, being engaged in sailing one of the North river steamboats, and being much of his tune absent. Shortly before her death she gave her infant child to her father, and requested him to take care of it as his own. She also enjoined upon him to have it religiously instructed and sent to the sabbath school, and to be careful to preserve its property so that it should not be squandered. By her will, which was made about a fortnight before her death, she bequeathed to her father, as her executor and trustee, all her interest in the estate of her deceased husband, as his residuary legatee, in trust for the sole benefit of her infant son. And she directed her executor and trustee to invest the same in such manner as he should deem safe and most productive, and to apply so much of the income thereof as he might deem necessary to the support and education of the infant. In case the infant should die under twenty-one, she gave one-fourth of her property to her cousin M. B., who at the time of the making of the will was performing the duties of a mother to the infant, and the other three-fourths thereof she gave to the appellant.</p> <p>The nearest relatives of the infant, after the death of his mother, were his paternal grandmother, Polly Byrne, a widow lady between seventy and eighty years of age, and her two maiden daughters, who lived with their mother, and who during the life of the infant’s father had derived then principal support from him; George Byrne, a paternal uncle, who was married arid had four small children; John Bennett, the maternal grándfather of the infant, then between fifty-five and sixty years of age; and H. Bennett, the maternal uncle, a bachelor of twenty-five, who resided with his father. The wife óf J. Bennett was about fifty-five, and had no children. She was the sister of the infant’s maternal grandmother, and had lived in the same family with the mother of- the infant for about twenty years, but was not in good health.</p> <p>About a month after the death of the infant’s mother, G, Byrne, the paternal uncle, applied to the surrogate to be- ap pointed guardian of the infant; and notice of the application was directed to be given to the maternal grandfather. The latter appeared and opposed that application; which was- finally abandoned. The appellant thereupon asked for the appointment for himself; and the surrogate directed notice to be given to the paternal uncle and grandmother. They both appeared before the surrogate and claimed the appointment-. And after hearing of the parties and their prooís, the surrogate denied the application of the appellant, and appointed Polly Byrne, the maternal grandmother, the guardian, upon her executing a bond with sureties in the penalty of $7,000. The surrogate afterwards approved of a bond executed by the guardian and her sureties, without requiring the sureties to justify; although the counsel for the appellant requested to be heard before him in relation to the sufficiency of the bond. And the petition of appeal stated that the sureties were wholly insufficient, and that one of them was not worth the sum of $500; over and above his debts.</p>

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

This was an appeal from a decree of the late vice chancellor of the first circuit. Cornelius Cozine the elder, who died in 1765, owned a farm at Bloomingdale, containing about 100 acres. By his will he devised it to his five children, Garret, Cornelius, Balaam Johnson, Margaret, the wife of N. Fletcher, and Sarah, the wife of W. Swanston; and the location of the part intended for each was stated in the will.

This was an appeal, by the defendant, from an order of the late vice chancellor of the first circuit, denying an application to dissolve an injunction. The bill upon which the injunction was granted, was a bill of discovery merely; in aid of the prosecution of a replevin suit, instituted by the complainants against Allen, in the court of common pleas for Suffolk county in Massachusetts.

This was an application, by the defendants, to stay the proceedings upon a decree of the late assistant vice chancellor of the first circuit, until the decision of the chancellor upon their appeal from such decree.

This was an application, by the defendant, for an allowance to be’ paid to her by her husband, the complainant, to enable her to examine and cross-examine witnesses before the master; upon a reference to him to take proofs of the facts and circumstances stated- in the bill in this c'ause.

Petition by defendant Cushman, for leave to examine his co-defendant Tallmadge as a witness for the petitioner, before the master, upon a reference. The petition stated that on the reference the counsel for the complainant examined the defendant Tallmadge as a witness; and that he was a material witness for the petitioner, and was not interested in the matter to .which he was sought to be examined.

This case.came. before the. chancellor upon, an application of H. B. Wardell to dissolve an injunction; and upon a cross-motion, on the part of-the complainants,, for the appointment of a . receiver. The complainants were judgment creditors of Charles. & .Ghades E.Wardell, merchants, in New York, who failed for, about $200,000.; - which was • nearly seven- times the amount of the value of all their property and effects.

This was an appeal by Herman Bruen, one of the defendants in this cause, from an order of the vice chancellor of the first circuit, denying an application to dissolve an injunction The facts, as stated in the complainant’s bill, were substantially as follows: Bruen, the appellant, was the president and agent of the Commercial Bank of New Jersey.

A petition was presented praying for a commission in the nature of a writ de lunático inquirendo. The alleged lunatic formerly resided in Westchester county, but was now a resident in the state of Ohio. The petition did not set forth that he had any property in this state; although that fact was sworn to in the affidavits annexed to the petition.

This was an application by J. W. Latson, one of the defendants, to open the order closing the proofs in this cause, and all subsequent proceedings therein, and to let him in to prove the defence set up in his answer. The bill was filed to foreclose a mortgage upon the Pearl-street House, in the city of New-York, there being several prior mortgages upon the same premises. The bond and mortgage were assigned to the complainant a few days before the commencement of this suit.

This was a bill by the complainant against her husband, for a separation from bed and board, on account of alleged cruel treatment. The complainant waived an answer on oath as to the acts of cruelty charged in the bill, and the defendant suffered the bill to be taken as confessed.

The bill in this cause was filed by the husband against his wife, to obtain a separation from bed and board, on account of cruel treatment, and such conduct on the part of the wife towards her husband as to render it unsafe and improper for him to cohabit with her. The defendant allowed the bill to be taken as confessed for want of an answer. And the case was heard upon the bill and upon the master’s report of the facts. (See ante, p. 285, S. C.)

This case came before the chancellor upon the master’s report, and amended report, in relation to the rights of the several parties in a partition suit. The premises, of which partition was sought, consisted of about one hundred and sixty acres of - land in the town of Charlton, in the county of Saratoga, of which Ryer Schermerhorn was seised at the time of his death, and of lots Nos. 64 and 65 in Glen’s patent, of which he was also seised at that time.

This was an, application by the committee of Cornelius Heeney, who in consequence of old age and infirmity had been found to be of unsound mind, for instructions in certain particulars relating to the support of the lunatic and the support of his household, and the management of his estate.

<p>This was an appeal, from an order of the late vice chancel; lor of the fifth circuit, denying the complainant’s motion for the appointment of a receiver, upon a creditor’s bill, on the ground that the vice chancellor was not authorized to hear and decide the motion. An application had been made to the chancellor, founded upon an affidayit that the defendant was the widow of a second cousin of the. vice chancellor,of the circuit in which this suit was pending. The chancellor thought there was not such a relationship existing between the defendant and the vice chancellor as to incapacitate the latter from hearing and deciding the motion; and therefore advised the counsel to renew his application there. An application was made accordingly, and upon the hearing thereof, the vice,chancellor stated it as a fact, within his own knowledge, and which was conceded by the complainant’s counsel, that the former husband of the defendant was a cousin german, or first cousin, of the vice chancellor, and that she had a son by that husband whe was then living. And the vice chancellor thereupon denied the application, upon the ground that he was not competent to hear and decide the motion for a receiver; by reason of His relationship by affinity to the defendant.</p>

This was an application to dissolve an injunction, upon the matter of the bill only. The object of the bill was to obtain an account and settlement of the concerns of a copartnership which had existed and been carried on between the complainant and the defendants; and to restrain one of the defendants, who was stated in the bill to have misapplied the funds, from selling, disposing of, or -intermeddling with the copartnership effects.

This was an application, by the defendants, to dissolve an injunction, for want of equity in the bill to sustain it. Tha claim of the complainants was founded upon the will of Charles Wilkes, of the city of New-York, and on the frauds and misconduct of Horatio Wilkes, one of the executors and trustees, and also one of the residuary legatees and dévisees of the testator.

THJ«;oas9 cam9;before the chancellor upon.the petition of. G, S, Wayne, for. a- priority in,payment, out of,the assets .of the;. Groton Insurance Gompany, in.the-hands of. the receiver.;, the,company being, insolvent-.. Previous to the,, insolvency of the corporation.it had.insured;, the schooner, Emeline Peterson, by a time policy. During, the. continuance of the.- risk, the- schooner, was wrecked,, and was abandoned, by. the. master,- and. crew.

This cause came before the chancellor upon the demurrer of the defendants to the bill of complaint.

This was an appeal, by the defendant, from an order of the late vice chancellor of the first circuit, overruling a demurrer to a bill of discovery in aid of a suit at law. The defendant was formerly a merchant residing in Ireland, and before he came to this country accepted a bill, now belonging to the complainant. He afterwards became a bankrupt, and came to this country to reside, without having obtained a certificate.

This was an appeal, by the complainant, from an order of tbe vice chancellor of the first circuit, setting aside an order to take the bill as confessed against M. G. Pinckney, one of the defendants; and allowing her to put in the answer of which a copy was used upon the application.

This was an application by J. I. Kane, the father and general guardian of his infant children, for an, allowance, out of their property, for their education and support.

This case came before the chancellor upon the petition of James S. Wadsworth and Elizabeth Wadsworth to remove W W. Wadsworth as one of the executors and trustees under the will of his father, and to appoint another trustee in his place, so far as related to the trust created for the benefit of the petitioner E. Wadsworth.

Tiffs' was -an appeal, by the-heirs and tertenants of T. 'M, Wóód deceased, from án-order of the'surrogate of the-county of Onondaga, establishing'a debt against the estate of the decedent, and directing the surviving administrator to sell certain ■real estate, of which the intestate died seised, for the payment and satisfaction of that debt.

This case came before the chancellor upon an appeal, by the complainants, from an order of the vice chancellor of the first circuit, denying their application for leave to amend the bill filed in this cause.

This case came before the chancellor upon an appeal from a decretal order of the late vice chancellor of the fourth circuit. In September, 1827, Cornelius Burhans the elder died, leaving his second wife, Anna Burhans, surviving, and five children by her, and six by his first wife, and four grandchildren, who were the issue of another child by his first wife, his only heirs at law.

This was an appeal, from' a decree of the assistant vice chancellor of the first circuit, dismissing the complainants’ bill. The bill was filed by the two nieces of John Fisher, deceased, to set aside an instrument purporting to be a will .devising .his real estate. The statement of the facts, in substance, is contained in the report of the case upon an appeal from the surrogate in relation to a probate of the same instrument as , a will of personal property.

This was an appeal from a decree of the surrogate of the county of Rensselaer. In January, 1838, the respondents, Chapman and Daniels, recovered a judgment against A. Kidd, which was docketed on the 25th of the same month. Kidd died a few days afterwards, possessed of a large personal estate, and the appellants M. and J. Kidd, proved his will and took out letters testamentary thereon, as his executrix and executor.

This was an appeal from an order of the surrogate of the county of Dutchess, requiring S. D. Holmes, the appellant, to give security for the faithful discharge of his trust, as executor of Noah Cock deceased. The application was made by W. H. Cock, the respondent, who was one of the residuary legatees of the testator.

This case came before the chancellor upon an appeal, by Elijah Valentine, one of the executors, from the sentence and decree of the late surrogate of the county of Westchester, upon the final settlement of the accounts of the executors of John Valentine, deceased. The will of the testator was not set forth in the surrogate’s return ; which return showed a very irregular and imperfect state of proceedings before the former surrogate who made the decree appealed from.

This, was an appeal by Lyman Phelps, one of the defendants, from a part of the decree of the vice chancellor of the seventh circuit, in this cause. In July, 1841, Phelps, the appellant, gave a mortgage to Jones, the complainant, for $1000, and interest. In April, 1842, Phelps conveyed the mortgaged premises to J. K. Crandall, subject to this mortgage; and Crandall agreed to pay the mortgage, as a part of the consideration of the conveyance to him.

This was an appeal by the complainant, from an order ol lie vice chancellor of the first circuit, dissolving the injunction which had been granted in this cause, upon a bill of discovery; and directing the appellant to pay the respondent’s costs. Tue fill was filed fór k discovery in aid of the complainant’s defence to a suit at law, upon an acóéptancé purporting to have been made by'him, but which he charged to be a forgery.

This was an appeal from a decree of the vice chancellor of the eighth circuit, allowing the demurrer of E. Pond, one of the defendants, and dismissing the complainant’s bill, as to him, with costs.

This was an appeal, by the complainant,- from an order of tie vice chancellor of the first circuit, allowing the .demurrers of the defendants P. L. Mills and T. C. Winthrop. The complainant- recovered a judgment against the defendant P. L, Mills, who had failed in business, some years since. That judgment was recently revived by scire facias, and an execution was issued against the property of the judgment debtor which was subsequently returned unsatisfied.

This was an appeal, from an order of the late vice chancellor of the eighth circuit, directing the bond of the receiver appointed in this cause to be filed nunc pro tunc. The suit was brought by the representatives of a deceased partner, against a surviving copartner, for an account and settlement of the co-partnership transactions.

This was an application, on the part of the respondents, to dismiss an appeal from a decree of the surrogate of the county of Ulster, upon the ground that the appeal was not entered in time. The order appealed from was dated the 20th of January, 1846, and purported to be an order for a final settlement, and for the discharge of the respondents as executrix and executor, upon the payment of the sums specified in the decree.

This was an appeal, from a decretal order of the assistant vice chancellor of the first circuit, allowing the defendant’s plea to the bill filed in this cause. In September, 1815, H. Didier, the complainant, and J. N. D’Arcy, since deceased, were copartners in business at tho city of Baltimore, and the defendant J. Davison, and H. Hill, sih.ce deceased, were also copartners in trade residing out of the United States.

This case came before the chancellor'upon a demurrer to the complainant’s bill. The complainant was the owner of a farm in the county of Cayuga, through which the Auburn and Rochester Rail-Road Company located then* rail-road.

This was an application, upon bill and answer, for the dissolution of an injunction.

This was an appeal from a decree of the vice chancellor of the first circuit, allowing the several demurrers, of the defendant Barney Corse, and of the executors of the will of his father, Jo seph Corse, to the supplemental bill of the complainants; and dismissing such supplemental bill, with costs.

This was an application, on the part of the complainant, under a reservation made in a decree in this cause, for directions as to the distribution of a portion of the fund in his hands, as administrator with the will annexed, and as substituted trustee in the place of the executors of John Clendining, deceased.

Ti-ii'S'was an application, bythe. complainant,¡'fqcthea'etaxa tion.of ..the -costs ¡of ¡the seven ..defendants in .this cause-who ,appeaved:.by.J. ¡Bowers,¿as ¿their.solicitor. The. questions presented open: the; application ¿are ¡fully .stated sin ithe.,chancellor’s -opinio».

This was an appeal, by the petitioner Mary Ann Ely, from an order of the vice chancellor of the first circuit, denying the appellant’s petition with costs. ' The petitioner stated, among other things, that she was one of’the members of a religious society devoted to the education and .amelioration of the condition of the children of.poor and .indigent parents;; .that about five-years ¡before - the giving-.,of the mortgage-upon the ’house and lot. in Bar¿Iay-streét,in the…

This was an-appeal drom a decree. of- the-vice chancellor of the'sixth-circuit., In - February; 1837; Brown &.Hone,of the city■■ of N'ew«York, had adjudgment ■ against - Jv L.Fisher, of' Tioga county; -for about $3000, besides - interest-and- costs, -.and had filed a creditor’s bill thereon.

This case came before the chancellor, upon the petition of the defendant Roberts, to correct certain alleged errors in a master’s report, made under the decree in this cause. Orié or two of the alleged errors were errors in computation only, and the others Avere omissions to credit the petitioner for shins which had been paid out by him; but the last mentioned errors did hot appear upori the face of the report, or of the schedules annexed thereto.

This case came before the chancellor, upon the separate demurrers of the defendants, to the complainant’s bill, for multifariousness. The object of the bill was to reach certain real estate of W. Leggett deceased, which, as the bill alleged, he' purchased and took the title for in the name of the defendant Forrest; but purchased,- in fact, for his own use atid benefit.

This was an appeal from a decree of the assistant vice chancellor of the first circuit, dismissing the complainant’s bill. The defendant Avery, in June, 1836, conveyed to the complainant Miller, a tract pf land in Lycoming county, in the state of Pennsylvania, with warranty, for the consideration of $300; and took back a note from Miller for the purchase money, payable in five years with interest.

This was an appeal from a decree of the vice chancellor of (lie eighth circuit, allowing the demurrer of the defendant G. H. Mumford, one xf the defendants, and dismissing the bill as to him.

This case dame before the chancellor upon an appeal, by T. F. Monro and S. Beardsley, two of the defendants, from a decree of the vice chancellor of the seventh circuit; and upon a cross-appeal, by .the complainant, from an order, forming part of such decree, suppressing a portion of the complainant’s testimony.

This was an appeal from an order of the vice chancellor of the eighth circuit, overruling the plea of Henry Miller, one of the defendants, to the complainant’s bill. The complainant brought an action of assumpsit against the defendants for a half year’s rent alleged to be due upon a lease for five years, not under seal, from the complainant to the defendant Samuel Miller. The lease purported to have been signed by S. Miller as the lessee, and by H. Miller as security.

<p>This was an appeal, from a.decree of the vice chancellor of the first circuit, overruling a demurrer to the complainant’s bill. The case, as stated in the bill, was as follows:</p> <p>In February, 1844, the defendant imported into New-York, from Hamburgh, a quantity of spelter in plates, upon which the collector claimed and received a duty of twenty per cent ad valorem; amounting to $565. This spelter was not a dutiable article under the act of August, 1842, being" included in the class of articles that by the ninth section of that act were exempt from the payment of duties; not by the name of spelter, but by the name of tutenague, or teuteneque as it is spelt in the seventh subdivision of that section. Had it been a dutiable article it would have been entitled to debenture; and to a drawback of the whole amount of the duty, except two and a half per cent thereof; upon an exportation at any time within three years.</p> <p>By the usages of trade at New-York, as the bill alleged merchandise entitled to debenture is sold at two different prices, called long price and short price. The first entitles the vendor to have the goods exported by the vendee within the time allowed by law, so as to give the importer the benefit of the drawback, or the payment of an additional price, equal to the amount of the duties, in case the goods are not exported. The second, or short price entitles the first, or any subsequent vendee, to the benefit of the drawback, in case he exports the goods within the time and in the manner allowed by law to entitle the importer to receive such drawback at the custom house.</p> <p>A few days after the importation of the spelter, by the defendant, and the payment, to the collector, of the twenty per cent duty claimed to be due thereon, the defendant, by his authorized agent, sold such spelter to the complainant at long price, and delivered the same to him. In September, 1844, while the spelter remained in the hands of the complainant, and in a situation in 'which it might have been exported with the benefit of drawback, had it been a dutiable article, the secretary of the treasury decided that this article was exempted from duty ; by the ninth section of the act of 1842. He thereupon authorized and directed the several collectors of the custom'? to refund to all importers of spelter, under that act, who had pat 1 duties thereon, the amount of the duties thus paid by them respectively. And in pursuance of that direction the defendant received back, from the collector, the twenty per cent duty which the latter had claimed and received from him upon the importation of the article in question; although the complainant claimed the right to the return of such duty, and requested the defendant to’ authorize him to receive it.</p> <p>The defendant having refused to pay over the amount thus received from the collector, the complainant filed his bill in this suit to recover the same. • And the defendant demurred to the bill for want of equity; and also stated, as a ground of demurrer, that if the complainant was entitled to the money, he had a right to recover it* in an action at- law.</p>