Volume 2 — Delaware Chancery

<p>Bill in equity to restrain the collection oe a judgment at law.—The complainant, Samuel McDowell, indorsed, for the accommodation of the maker, a promissory note made by Thomas McDowell for $500.00, dated’ October 6th, 1817. The note was discounted by the Bank of Wilmington and Brandywine, the defendant. At its maturity it was protested for non-payment; and afterward an action at law was brought in the Superior Court by the bank against the complainant as the indorser, and judgment was recovered against him on the 7th of April, 1819, for $541.16. After some years of delay the bank proceeded to collect this judgment from the complainant.</p> <p>The bill, setting forth these facts, further alleged that after the note was protested and judgment recovered, the bank continued, to have business transactions with Thomas McDowell, the maker; that they received sundry deposits made by him, sufficient in amount to have paid the note, and against which the bank,had the right to charge the note; that, nevertheless,it had suffered the maker to draw his deposits, and had thereby, as the bill insisted, discharged the complainant as the indorser.</p> <p>It was also alleged that, after the protest of the note, an arrangement was entered into between the bank and the maker, without the privity of the indorser, by which it was agreed that the latter, who was a Justice of the Peace and Uotary Public, should protest the notes and bills held by the bank; that his notarial fees should be credited to the note, and that the indorser should not be resorted to. Under this arrangement some credits had been given to the .note, but not sufficient to pay it; yet the complainant claimed to be discharged from his liability by force of the agreement. It was further alleged in the bill that the complainant was the owner of thirty-six shares of the capital stock of said bank, which he had sold and attempted to transfer to another person, but that the bank had refused to permit the transfers to be made upon its books; in consequence whereof, the complainant-had lost the sale of the stock and sustained damage. The bill prayed an injunction to restrain the collection of the judgment of the bank against the complainant, and that an entry of satisfaction should be made upon the record thereof under a decree of this Court; and also that damages should be decreed to the complainant for the refusal of the bank to permit the transfer of the stock.</p> <p>The answer admitted the making, indorsing and discounting of the note, and that the same was discounted for the accommodation of the' maker, and the proceeds passed to his credit: that Thomas McDowell had received from the bank, since judgment was obtained against the indorser of the note, several sums of money due him for fees as Notary Public and Justice of thePeace; and that the said sums were not retained and applied to or set off against the said note, there being no direction by Thomas McDowell, nor any obligation on the bank so to do: that an arrangement was made between the bank and Thomas McDowell in relation to protests, as stated in the bill; but the answer denied that such arrangement was to continue until the note was paid off, or that payment thereof was not to be demanded of Thomas McDowell, in any other way, whilst he continued to perform his part of the agreement. The answer admitted the payment to Thomas McDowell, for protests under this agreement, of $80 in cash and about $150 by way of credit to his note; and that he had made deposits since April, 1819, “ as a Justice of the Peace, but notin his own individual capacity and nameand it denied that the balances due at any time equaled the said note. The bank did not demand payment of the said judgment from the complainant, because he was insolvent and had been discharged under the insolvent laws of this State. It was admitted that the bank had refused to permit him to transfer his bank stock until he paid the said judgment; and also that it had issued a scire facias on the judgment for the purpose of reviving the same, and had obtained judgment thereon; but the defendant alleged that at the time of refusing to allow the said transfer, and before and ever since, there was a by-law of the bank, duly and legally made, “that any stockholder, being indebted to the bank, shall not be at liberty to sell, assign or transfer his stock, or any part thereof, whilst his debt shall remain due and unpaid; and that such dividends shall remain pledged to the bank until such debts be paid, or until they shall be arranged to the satisfaction of the bank; provided, that no stock, at a fair market price, should be retained beyond what should be sufficient for the security of the debt that may be payable;” which by-law, the defendant alleged, was a sufficient authority for its said refusal.</p> <p>■ The answer further set forth, that Samuel McDowell sued the bank for refusing to let him transfer the said thirty-six shares of bank stock, and on the trial of that suit a verdict was rendered for the defendant, under the charge of the Court, that the said by-law was a good and reasonable by-law, and a sufficient ground for refusing to transfer the stock, and that the said stock stood pledged for the debt; and the answer insisted that it was not incumbent on the bank to apply the deposits of Thomas McDowell to the note; that a judgment having been rendered against the said Samuel McDowell, there must be an actual payment or release to discharge the same.</p> <p>The case was put at issue and depositions taken. Thomas McDowell proved the agreement in relation to fees for protests, as stated in the bill, and “ that this arrangement was to continue until the debt should be paid; and it was expressly understood at the time of making it that recourse was not to be had to the indorser.” He also swore that he had no separate account with the bankas Hotary Public or Justice of the Peace. In the account of Thomas McDowell, as it stood upon the ledger of the bank, the letters, “ J. P.,” were added to his name from August, 1819, to June, 1822. In the accounts subsequent to the latter date, these letters were not added, but the accounts stood in the name of Thomas McDowell. The checks were signed “Thomas McDowell,” without any addition. The deposits of McDowell, while the note was in the hands of the bank, at different times, greatly exceeded the amount of it.</p> <p>The cause came before the Chancellor, at the September Term, 1833, for a hearing upon the bill, answer, exhibits and depositions.</p>

Bill to Set Aside a Conveyance op Real Estate.— This was a bill filed by creditors to set aside a conveyance of real estate, under the circumstances following : The firm of Kennedy and Denning, (of which William Kennedy, one of the defendants, was a member,) being insolvent, were indebted to the complainants, severally,in sundry judgments.

This was a bill in equity for the collection of a balance due upon a judgment, in the alleged absence of a remedy at law. The judgment was for the sum of $2367.58, recovered May 15th, 1809, in the Superior Court for Hew Castle County, at suit of James Couper Jr., guardian of Eliza Evans vs. Thomas Boulden, administrator c. t. a. of Philip Lewis, deceased.

Bill bt creditors to set aside a eraudulent conveyance.—The defendant, Evan F. Morgan, purchased from Daniel Godwin a house and two lots, situated in Lewis, Sussex County, taking a conveyance of the property in fee simple to his children. The deed recited a consideration of $2000.00, as paid by Evan E. Morgan; the consideration in fact consisting of a stock of store goods which Morgan exchanged for the house and lots.

<p>Bill eor raising a legacy out oe real estate.— This case arose upon the will of Jacob Whiteman,deceased, dated April 15th, 1826. The testator, after first directing the payment of all his just debts and funeral expenses, devised to his son, Jacob Whiteman, in "fee simple, a tract of land, being part of the plantation on which the testator then resided. He further devised to his son Christian, in fee simple, a tract of land then occupied by Christian ; and also bequeathed to' his said son, three hundred dollars, to be paid to him in three years after the testator’s decease. The testator then bequeathed sundry other legacies to children, all being made payable at a date subsequent to his decease, as follows : to his son, John Whiteman, $300, tobe paid to him in three years after the testator’s decease; to his daughter, Haney Whiteman, $300, to be paid to her in three years after his decease; to his daughter, Sarah Whiteman, $300, to be paid to her in three years after his decease; “ each of them, my said four children, to be paid the sum of three hundred dollars as aforesaid, in three years after my decease, by my aforesaid son, Jacob White-man.” The testator then, after making a few small specific bequests, further bequeathed to his aforesaid son, Jacob Whiteman, all his “personal or moveable property,” of any kind he had, besides what he had thereinbefore left him, his said son, Jacob Whiteman; “whom,” the testator proceeds to say, UI do hereby nominate, ordain and appoint whole and sole executor of this my last will and testament.”</p> <p>The testator died in September, 1832, and Jacob White-man, the son, proved the will and took letters testamentary. By his testamentary accounts, duly filed, it appeared that the personal estate of the testator was exhausted by debts and funeral expenses, leaving no personal fund applicable to the legacies. Haney (or Ann) Whiteman intermarried with Samuel Kibler, and afterward died on the 18th of Hovember, 1833, within three years after the testator’s decease. She left issue, a daughter, who intermarried with the complainant, John Cloud. The hill was filed by Cloud, as the administrator of AnnKibler, deceased, the legatee, seeking to recover the legacy, with interest from the time when the legacies were made payable. The bill, however, did not in form seek to charge the defendant as devisee of the land devised to him, but charged him as executor of the testator. It contained a specific prayer for relief, that “ if the said Jacob Whiteman shall not admit assets of the said testator to answer the■ said legacy, then that an account may be taken, of the estate and effects of the said testator which hace been possessed or received by the said Jacob, or by any other person by his order or to his use, and that the same may be applied in a due course of administration.’’ The bill then closed with a prayer for general relief in the usual terms and for a subpoena, which, from the indorsement on the bill appeared to have been issued against Jacob Whiteman as executor of Jacob Whiteman, deceased.</p> <p>The answer admitted the statements in the bill generally, but denied that the defendant had any assets applicable to the legacy, and showed that as executor he had made a full and true settlement of the estate before the Register of Wills on the 13th of March, 1834, by which it appeared that the whole personal estate was exhausted, and that there was a balance overpaid by the executor of $542.62.</p> <p>The cause came before the Chancellor at the Feb. T. 1837, for a hearing upon the bill, answer and exhibits.</p>

Bill in Equity for arrearages of an annuity.—The complainant was entitled, under the will of her first husband, Dr. Thomas Evans, deceased, to an annuity of £24. Evans died in the year 1796. Letters testamentary on his estate were granted to his executors, who passed sundry testamentary accounts and died.

Bill in Equity,'filed under the following circumstances.—John S. Van Dyke was indebted to sundry creditors. and, among others, to Edward Tatnall in the sum of $210.00, secured by his judgment bond and also by a mort-. gage dated the 18th of October, 1823, executed by himself and Jane his wife, of certain real estate which had descended to the wife from her deceased father, Alexander Jami-son.

—The complainant had filed a bill for the specific performance of a paroi contract between himself and the defendant, bTehemiah Redden, for the conveyance of an undivided share of the intestate real estate of ¡Nathaniel Mitchell deceased, situated in. Sussex county. The undivided share in controversy had descended to William J. Mitchell, the eldest son of the intestate ; Redden having purchased this share at Sheriff’s sale under an execution against Mitchell.

Bill in Equity eor specieic performance oe a paroi contract eor the convbyance oe eands.—The defendant, Nehemiah Redden, held by purchase at Sheriff’s sale under an execution against William J. Mitchell, the said Mitchell’s undivided share of the intestate real estate of his deceased father, Nathaniel Mitchell, situated in Sussex County.

Bill in equity against a corporation for an account AND FOR PAYMENT OF AN EXCESS OF TOLLS DUE TO THE STATE under its charter.—Under the provisions of the Act of the General Assembly incorporating the Wilmington Bridge Company the State of Delaware reserved to itself any excess of tolls to be received by the company over ten per cent, of its capital stock, and directed that such excess should be paid over to the Trustee of the School Fund, for the use and benefit of that fund.

Bill in Equity against a Trustee eor an account AND EOR THE DELIVERY OE SECURITIES RECEIVED EOR COMPLAINANTS as a donatio causa mortis.—The bill alleged that Sophia S. P. Lawrence, now deceased, in her lifetime intermarried with the defendant, John Godwin ; that, by an ante nuptial contract, the property held by Mrs. Godwin before the marriage was secured to her sole and separate use; that, after the marriage, the contract came to the possession of the husband and was…

Bill in Equity.—The case made by the bill was as follows :—The defendants, Waters and Laird, together with one Moses Eedpath, were engaged in the manufacture of cotton goods on the Brandywine, prior and up to the year 1837, when they failed in business.

Bill against trustee por account—Compensation.— Mary Oliver, one of the complainants, having a judgment against James Bradford for $2,191.41, assigned it to the defendant in trust for Bradford’s wife, Elizabeth C. Bradford, (who was sister of the complainant, Mary Oliver,) for her separate use during her lifetime, and after her death for her children.

Bill in Equity to -set aside a fraudulent deed.— This bill was filed by the children and heirs at law of Hezekiah Dutton, deceased, in order to set aside a deed executed by Dutton in his lifetime, to wit, on the 15th of April, 1834, conveying to the defendant, for the consideration of $250, certain real estate, worth from $800 to $1000.

This was a case stated in equity, setting forth the following facts:— Samuel Woodward died, seized in fee simple of a house and lot; also of a farm containing one hundred and twenty acres, with a stone house, barn, &c., erected thereon, having made his last will and testament, by which (after directing the payment of his debts and giving to his wife, the defendant, certain articles of furniture,) he devised as follows:—“ and further my will is that my executors set apart the…

Joseph Bailey, by his will dated Feb. 10th, 1843, devised the residue of .his estate equally to his two sons, one of whom was Samuel Bailey. By a codicil he devised the share before given to Samuel to John B. Latimer, in trust for the benefit of the said Samuel Bailey and his wife, during their joint lives and the life of such survivor; and, after the death of the survivor, he directed that the estate held intrust should pass to the said Samuel’s heirs-at-law.

Bill in Equity eor a legacy charged on land.—Caleb Perkins, by his last will and testament, dated May 24th, 1804, bequeathed to his daughter Margaret, then the wife of Thomas Cartmell, the sum of £100, subject to the deduction of such book account as the testator might have against her at his decease—the legacy to be paid to her, within three years after the testator’s decease, by his son Joseph Perkins, to whom he had devised certain real estate charged with its payment.

Bill in Equity, filed under the following circumstances : William T. Smith, by his last will and testament, bearing date in the year 1812, after distributing his estate proceeded, in order to equalize the same amongst his children, to fix a valuation on the several parts of his real estate, and directed that the excess of any part in value above an equal share of the whole should be deducted from such part, so as to equalize any that might be deficient.

Bill for a specific performance of a paroi contract FOR THE conveyance of lands.—In August, 1841, the complainant and the defendant, Adkins, entered into a paroi contract for an exchange of land, situated in Sussex county—the defendant, Adkins, agreeing to convey to the complainant a tract of marsh containing fourteen acres, and the complainant agreeing, in consideration of the marsh, to convey to the defendant, Adkins, four-and-a-half acres of woodland, and also to pay…

Bill i^Equit? to compel the conveyance of land, under the following circumstances: Thomas Robinson, deceased, in his lifetime and in the year 1813, had at sundry times declared, both to the complainant and to other persons, his intention to give the complainant five acres of land; the same to be laid off from a certain part of a larger tract owned by Robinson. The five acres were marked off and separated from the farm by a designated boundary.

Bill to set aside an assignment.—This hill was filed by the complainant, for himself and such other creditors of George Tunnell as should intervene. The complainant, on the 1st of January, 1841, had sold and conveyed to /George Tunnell certain real estate, for which Tunnell paid in cash $75, and gave his judgment bond for $700, payable, July 1st, 1842. Judgment was entered on the bond, August 18th, 1842.

Bill for an injunction to restrain a lottery.—By an act of the General Assembly, entitled “ An Act for the benefit of Sussex County,” passed February 13th, 1835,* three trustees were appointed, with power to elect or appoint one or more persons, not exceeding five, as managers, to institute, carry on and draw a lottery, for raising a sum not exceeding $25,000, for certain public objects in the act specified.

Bill for relief of sureties in a bond, for fraud.— The bill alleged that Richard F. Hastings, being desirous to borrow from James Bishop $500, on five years’ credit, applied to the complainants to become his sureties; that with a view to such loan, and to no other object, they signed and delivered to him a printed judgment bond in blank, confiding in him, that, upon obtaining the money, he would fill up correctly, according to their understanding, the blanks for the name of…

Bill in equity to enjoin collection oe a judgment. The bill made the following case : The complainant, on the 26th of April, 1833, sold to the defendant a china store, in Westchester, Pennsylvania, for $1400.00, at thé same time agreeing, either to take it back, ' if unsold within one year, or to make good the loss upon a re-sale.

Bill in equity, filed under the circumstances following : William Young and also William W. Young and Isaac Bannister, prior to the year… Held: who exercised the powers conferred by the act, filling vacancies in the board from time to time, keeping minutes of its meetings ; that books of account were kept and the business contemplated by the charter carried on in the corporate name from December in the year 1825, until the year 1841, when the company suspended business and…

Bill for removal of a trustee.—The defendant was executor and trustee under the will of Samuel B. Davis, deceased ; and held, subject to various trusts for the benefit of the testator’s children, a… Held: subject to various trusts for the benefit of the testator’s children, a considerable real and personal estate.

<p>Bill in equitt, filed under the circumstances following :—</p> <p>The defendant, John Hayes, was indebted to his father, John Hayes, now deceased, in his lifetime, in a judgment bond for the real debt of $1500.00, dated April 24th, 1854, payable at the expiration of ten years; the bond being executed as the consideration for certain real estate conveyed by John Hayes, the father, to the defendant. John Hayes, the father, by his last will, after making provision for his widow, devised all the residue of his estate, real and personal, to be equally divided between his ten children, including the defendant. The complainant, as administrator c. t. a., of the testator, passed, on the 19th of January, 1856, an administration account, showing a balance in his hands of $5700.43, distributable under the residuary clause of the will. The administrator refusing to pay the defendant his share of the residuary fund, the latter brought an action at law for such share on the administrator’s official bond. This bill was filed for an injunction to restrain the action at law.</p> <p>The bill claimed for the administrator the right by way of equitable set off, to retain the defendant’s legacy, and to apply the same as a credit upon the debt due from the defendant to the testator’s estate.</p> <p>The bill further alleged as an equitable defence against the action at law that the bond given by the defendant to the testator could not be found by the administrator after ‘the testator’s death, the same having been mislaid, lost or destroyed; that the administrator had, thereupon, filed a bill in equity against the defendant for a decree to compel him to execute a new bond in lieu of the original one so mislaid, lost or destroyed; and that a decree to that effect had been made by the Chancellor, on the 17th of February, 1857—also that the defendant should pay the costs in the suit in equity; that the defendant had never executed a new bond, pursuant to the decree of the Chancellor, although requested so to do; that an attachment for the non-performance of said decree had been issued and returned non est; that the defendant then was, and still is, a non-resident of this State, and cannot be reached by the process of its courts. The bill further alleged that the defendant had sold and conveyed away the real estate for the purchase of which the bond in question was given.</p> <p>The complainant insisted that the debt secured by the lost bond being part of the testator’s assets, the defendant was in equity bound to make the estate secure by executing a new bond, in performance of the decree of the Chancellor, before being permitted to recover his share of the estate, that being not a debt of the estate but a gift from the testator. Prayer, for an injunction, and that the defendant be compelled to come to a settlement with the complainant, as administrator, and release or assign to him the defendant’s share of the residuary estate of the testator; that so much of it as might be necessary be allowed to the complainant for his costs in the suit in equity, and that the residue be applied as a credit against the debt due from the defendant to the testator’s estate.</p> <p>To this bill the defendant demurred; and the cause came before the Chancellor, at the Feb. T. 1859, for a hearing upon the demurrer.</p>

Bill by creditors to set aside a conveyance.—This bill was filed by the complainants, judgment creditors of John R. Brick, one of the defendants, to set aside a deed from himself and wife, dated July 1st, 1851, conveying to his son, Edmund Brick, a large tract of land in Kent county, known as Bombay Hook Island, on the ground that the conveyance was voluntary, without consideration and in fraud of creditors.

Bill for the re-execution of lost securities. William Chandler, by deed dated August 18th, 1856, conveyed certain real estate to Hannah M. Jefferies, now Hannah M. Murray, one of the defendants, upon certain trusts for his wife, Parthena Chandler, for the consideration of $2000, expressed in the deed to be of the proper and separate funds of the wife.

Bill to marshal assets.—James McMullen, by his will, dated October 22d, 1856, directed the payment of his debts, and for that purpose that certain of his real estate should be sold. The residue of his real estate he devised to the complainants in fee simple, but with a proviso that this clause of his will should not take effect until all his debts should be paid.

Bill to restrain waste and eor an account. The complainant was trustee under the will of Benjamin Pot: ter, deceased, of certain real estate devised to charitable uses. The bill was filed against the heirs at law and the administrators of Joshua S. Layton, deceased; alleging that he, in his life-time, had cut timber on part of the trust estate, and praying an injunction against further w'aste; also praying an account of the waste committed and payment of the amount.

<p>After argument of a cause at the final hearing, leave granted, under the circumstances, to exhibit interrogatories to take additional testimony and for a further hearing.</p>

Bill to restrain the collection op a judgment.— The bill alleged that the complainant became bound, as the surety of ¡Richard Chambers, in a judgment bond to the defendants, dated Oct. 1st, 1856, for the debt of $300.00, payable on the 1st of ¡November then next; that the bond was given in part of the purchase money of a printing press which the defendants had sold to Chambers for $790.35; that for the balance of the purchase money, $490.35, Chambers gave to the defend ants…

Bill in equity, filed under the following circumstances :— Stephen Hurley, the defendant’s intestate, sometime prior to Hov. 13th, 1854, by a contract in writing, agreed to sell and convey to James L. Houston, one of the complainants, by “ a good and sufficient title,” a tract of land situate in the State of Maryland, known as the “ Moreign tract,” described as containing 511 acres, more or less, for the sum of $2000, to be paid as follows: $50 in cash at the date of the…

Bill to set aside a conveyance.—This bill was filed to set aside a deed executed by James Frazer and wife, on the' 5th of October, 1854, conveying to the defendant, who was one of his sons, a farm in Kent County, being the farm on which James Frazer had resided, for the consideration, as specified in the deed, of $2,000.

Bill in equity for breach of' trust.—Rachel Seal, Joshua T. Seal and Edward Grubb, being executors of the will of William Seal deceased, were also trustees under the will of a legacy of $3400 bequeathed to Sarah Sheron. By their testamentary account, passed March 14th, 1823, they credited themselves with the amount of this-legacy as so much of the assets held by them as trustees.

Attachment for breach of an injunction.—The defendant, one of the firm of Wood, Eddy & Co., who claimed to draw a lottery under authority of a certain act of the G-eneral Assembly, was attached for breach of an injunction issued on the 5th of April, 1861, restraining Wood-, Eddy & Co. from the further drawing of lotteries .under said act.

Bill for injunction against a judgment.—The defendant, Benjamin Harman, in 1856, married Experience Lore, a widow. At the time of the marriage she held the bond of the complainant for $1000.

Bill to be relieved from a promissory note for failure of consideration.—This bill alleged that James S. Chase, on the 4th of September, 1854, being engaged in carrying passengers by a stage route from Milford to Georgetown, and also the United States mails on said route, represented to the complainant that he held the contract and privilege of carrying said mails, with power to assign the same and the profit incident thereto, for the period of one year and nine months from…

Bill in equity.—George P. White, as administrator of John C. Barwick, deceased, under an order of the Orphans Court made at the March Term, 1857, sold the land of the decedent for the payment of his debts. The sale was made to Simeon J. Pennewill for $291.88, of which sum Pennewill paid part in cash, and for the residue, $140.28, gave his promissory note, payable to George P. White or order, in these words: “ Bridgeville, March 9, 1857.

These eases grew out of the same state of facts and were heard' together. The circumstances were as follows. Benjamin Stockley, having indorsed two promissory notes, of $1000 each, for John 0. Horsey,took from him a judgment note for $1500,as a security or indemnity against “ any loss or damage that might accrue to him on account or by reason of said indorsement” of the notes, both of which were then unpaid. Both the notes were afterward paid by John 0.

Bill oe interpleader.—On the 1st of December, 1860, Benjamin McDaniel recovered a judgment against Henry Webster for $506.83, and on the 3d of January 1861, issued a fieri facias, which was levied to. the amount of the judgment. On the 8th of December 1860, Webster was summoned as a garnishee under a fi. fa. attachment issued upon a judgment recovered by John M. Johnson against McDaniel before a Justice of the Peace for $78.20.

These were cross bills, filed under the following circumstances : On the 22d of-August, 1859, Allan Y. Lesley sold and conveyed to Charles Schock a farm, situated in Kent county; and, for the consideration, Schock assigned to Lesley a judgment bond and mortgage of John Fleming for $4500. The bond and mortgage were payable in nine annual installments, of $500 each, the first falling due March 1st, 1859.

This bill was filed under the following circumstances: Polly Burton, by her last will and testament, devised her real and personal estate, after the payment of her debts and funeral expenses, to Henry Burton, in trust for the separate use of Sally Burton, wife of JohnH. Burton, one of the defendants. . The personal property came into the hands of John H. Burton,as the administrator c. t. a. ofPolly Burton, deceased.

This was a bill for an injunction and for an account, embracing sundry particulars; but the only question argued and adjudged concerned a claim by the complainant of set off against a note after its assignment to a third person, under the circumstances following :— On the 12th of June, 1858, the complainant executed his note, under seal, for $109 to the defendant, John W. Walker, for money loaned.

Creditor’s bill to set aside a voluntary conveyance. —The defendant, Thomas Thatcher, by a deed dated December 26th, 1857, conveyed a house and lot, situated in Wilmington, to Edward Mclnall, upon… Held: to be invested for her use; and that the house and lot was purchased with this fund. The answer also alleged that at the time of the conveyance Thatcher was not insolvent.

<p>Bill against a trustee for enforcement of the trust and security :—Deborah Layton by her will devised the residue of her estate to her executors, in trust for the benefit of her daughter, Maria Collins, a married woman. The trustees were invested with the discretion to pay the money to Mrs. Collins, from time .to time, to secure or advance her comfort, the declared object of the trust being to secure the fund against the control of her husband. The trustees were empowered to bring the money into the Orphans Court, to be invested under the direction of the Court. There was a clear residue of the estate of testatrix of $1544.45, which came to the hands of the defendant as the sole executor and trustee, the other executor named in the will having renounced.</p> <p>The bill charged that no part of the trust fund had been applied by the defendant to its purposes, either by paying it to Mrs. Collins, or by bringing it into the Orphans Court. It further charged that the fund ‘was held upon no security other than the testamentary bond given by the defendant upon his appointment as executor, which was alleged to be inadequate. Prayer, that the defendant be decreed to give security for the fund,and to execute the trust.</p> <p>The answer admitted the trust and the receipt of the fund by the defendant, but denied that he was abusing the trust or endangering the fund. It insisted that the testatrix had entrusted the money to him without requiring security, and with a discretion to judge what part of it he should pay to Mrs. Collins; that, therefore, there was no case for the interference of this Court.</p>

<p>Bill oe Interpleader.—Sarah Dawson, by her will made in 1822, bequeathed the residue of her estate, consisting of certain lands, stocks and other property to her executor, in trust for sundry legatees for life, and after the expiration of the life estates, then to be divided equally between her three nieces, two of them being the wives respectively of John Eandel, Jr. and Walter Williamson, and the other a widow, Sarah Ann Erwin. John Eandel Jr, after an intervening executorship, became the administrator c. t. a., and the trustee of the property; but in 1855 he was removed from the trusteeship,and the complainant appointed in his place. On the settlement of Randel’s administration accounts he was found indebted to the trust estate. to the amount of $1746.64, which was never applied to the objects of the trust. The life estates having expired; the fund became payable in equal shares to Mrs. Randel, Mrs. Williamson and Mrs. Erwin. The complainant, the succeeding trustee, has now in hand $4800 of the trust fund, with some accrued dividends, divisible in like manner.</p> <p>Randel’s administration bond is barred by the statute of limitations,and he is insolvent. Under these circumstances, Mrs. Williamson and Mrs. Erwin claim that in the distribution of the fund in the complainant’s hands,Mrs. Randel shall be charged with the sum of $1746.64, received by her husband and not paid over, insisting that' Randel’s failure to pay was equivalent to an application of the money in his hands towards payment of so much of his wife’s share of the whole trust fund. Mrs. Randel claims her full share of the fund now to be distributed, contending that Randel’s liability as trustee was for his own debt, which might have been recovered by timely proceedings on his bond, and that her portion of the trust fund ought not to be liable for it.</p> <p>The cause came before the Chancellor on a bill of inter-pleader filed by the complainant, and upon answer of the defendants, setting up their respective claims as above stated, and was heard at the Eeb. T. 1865.</p>

<p>Bill to be relieved oe a Forfeiture.—The complainants, as executors of John D. Anderson, deceased, gave to the defendant, John M. Bailey, their bond, dated April 20th, 1861, for a legacy of $500, bequeathed to him by the then testator, payable October 20th, 1861; subject, however, to an agreement that if at any time before the same should become due and payable, on the 20th day of October, 1861, it should satisfactorily appear that any abatement of said legacy was proper and legal-and that such abatement ought to be made, that the amount so to be abated from this legacy should be credited on the bond; but if before the time specified for payment of the bond such abatement, if any, should not be ascertained, by agreement or otherwise, then the bond should be deemed to be absolutely due and might be collected.</p> <p>The amount of the abatement was not ascertained, by agreement or otherwise, before the time specified for payment of the bond; nor had it been ascertained at the filing of the bill. The complainants claimed that by an account, passed by them as executors on the 11th of April, 1862, it appeared that a large abatement would be necessary to be made on all the pecuniary legacies. The amount of such abatement could not be now ascertained, because it was as yet doubtful what -would be the amount of some of the pecuniary legacies. For, the testator had bequeathed to these executors five years’ interest on all his interest paying credits, the amount of which did not appear. He had also devised to the complainant, John P. Emerson, a farm, with directions to his executors to erect certain buildings on it, at a cost not to exceed $8,000: and, if less than that sum should be required, then the difference was bequeathed to John P. Emerson as a legacy. The testator also devised to another person, a farm, with directions to erect upon it certain buildings described in the will. These buildings had not been erected; and, in consequence, the cost of the building in the first instance and the excess of the $8,000 over the cost, in one case given as a legacy, could not be ascertained. Hor was the amount oí the legacy to the executors as yet ascertained.</p> <p>John M. Bailey, the obligee in the bond, having proceeded to collect it by execution, this bill was filed to be relieved against the limitation of time in the bond, and that further process to collect the bond should be enjoined until the amount to be abated from Bailey’s legacy could be ascertained. • A preliminary injunction was granted.</p> <p>The cause came before the Chancellor,, at the March Term, 1865, for a hearing upon the bill, answer and exhibits.</p>

Bill by Creditor against a Voluntary Q-rantee.— The complainant recovered a judgment against the defendant, James C. Wilson, on the 9th of ¡November, 1861, for $276.84. Pending the suit, and before the judgment was recovered, Wilson conveyed a lot of land and house held by him to his sister, Susanna Wilson, the consideration expressed in the deed being $1,000. The deed bore date June 10th, 1861, and was not recorded until March 18th, 1862.

Bill in Equity for the Relief of Sureties.—The bill filed in this cause set forth the following case: The defendant, Charles H. B. Day, was the Collector of Internal Revenue for the Collection… Held: was collected by Clements after such assent was given, and was with such assent used by him in the business of grain buying by himself and his partner. 2.

Bill in equity, filed under the circumstances following : Isabella Garden executed and delivered to Francis R. Garden, her son, her bond or obligation under seal,bearing date June 7th, .1858, for $7,100, payable in annual installments of $200 each, with interest; with a provision that at her decease the whole debt should be payable out of her estate. Francis R. Garden died about the year 1861,leaving a will, of which the complainant was executrix.

Case stated in equity.—This was an information filed by the Attorney General to establish the trusts of a devise to charitable uses made by the last will and testament of Benjamin Potter, dec’d. The questions arising in the case were submitted to the Chancellor upon a case stated, the material facts of which were as follow:— Benjamin Potter, being seized of a large estate, real and personal, made his last will and testament, bearing date July 26th, 1839, and also three…

<p>This was an appeal from the decree of the chancellor establishing certain trusts of real estate for charity under the will of Benjamin Potter dec’d, in the case reported ante p. 392.</p> <p>The heirs at law of the testator, being advised that the devise to charity was void, brought their action of ejectment to recover the real estate devised. Thereupon, in order to obtain a judicial decision as to the validity of the trusts, a case stated was agreed upon and filed in the Court of Chancery, wherein the State of Delaware was made a party complainant and the heirs at law defendants, with the same effect as upon an information filed by the Attorney General to restrain the ejectment at law and to establish the trusts of the will.</p> <p>The devise in controversy, as resulting from the will and codicils of the testator, was of all the residue of his estate, including a large real estate, situated in Kent County, to Potter Griffith, George S. Adkins and Levin II. Ad.ams, (who were also appointed Executors) in trust “ to be by them my said executors rented out and the proceeds arising from such rents to be applied to and for the support, maintenance and education of the poor white citizens of Kent County generally”—the distribution thereof to be made by agents to be appointed by the Orphans’ Court or the Levy Court of Kent County, as may be deemed most proper. “ I wish it to be clearly understood that no part of my bequest shall be applied to the use or benefit of any person or persons residing within the walls of the Poor House ; but to be distributed amongst such only of the poor who by timely assistance may be kept from being carried to the Poor House and becoming subjects thereof.” *</p> <p>The trustees named in the will declined to accept the trust.</p> <p>The questions raised by the case stated turned upon the validity of the devise in trust above quoted and the power of the Court of Chancery to establish and execute the same. It was agreed that if the Chancellor should be of opinion that the trusts were valid and such as could be executed in a court of equity, the ejectment at law brought by the defendants should be perpetually restrained and the trusts of the will established ; but that if the Chancellor should bo of opinion that the trusts were invalid and such as could not be executed in a court of equity, a decree should be entered accordingly. A right of appeal was reserved to the respective parties.</p> <p>The Chancellor upon the hearing of the case stated rendered a decree, sustaining the devise in question and perpetually enjoining the heirs at law from prosecuting any claim to the real estate. From this decree an appeal was taken by the heirs at law.</p> <p>The appeal was argued in the Court of Errors and Appeals at the June Term 1848, before Booth C. J. and Harrington, Milligan and Wootten, Justices.</p>