Volume 2 — Johnson's New York Chancery Reports

<p>[ * 2 ]</p> <p>THESE were original and cross suits. The original bill was filed in November, 1808, by Samuel Osgood, and Mary his wife, she being the sole surviving executrix of *the last will and testament of Walter Franklin, deceased, her former husband, against the executors of Samuel Franklin, deceased, the executors of John Franklin, deceased, the executors of Thomas Franklin, deceased, and the residuary legatees of the testator.</p> <p>[ * 3 ]</p> <p>Walter Franklin, being possessed of a large real and personal estate, on the 21st of February, 1778, made his will, and, after some specific legacies, devised the residue of his estate as follows: one eighth part thereof was directed to be put out at interest, and the interest thereon he gave to his sister, Sarah Corsa, for her life, and after her decease the principal and interest to her daughter, Mary Corsa; one eighth to the use of his sister, Mary Wistar, for life, and after her death, to her four children, Thomas, Catharine, Sarah, and Mary, (defendants;) one eighth part to his daughter Maria, (now the wife of De Witt Clinton;) and one eighth part to his daughter Sarah, (the wife of John L. Norton;) and to each of his three brothers, John, Thomas, and Samuel, he gave one eighth; and appointed his wife Mary, and his brothers, John, Thomas, and Samuel, executors of his will, upon the express condition and proviso, that if they owed him, the testator, any debts at the time of his decease, the same should be paid for the general benefit of his estate; and if they did not act on that condition, they were not to be executors. The will also contained the following clauses: “ I give to my executors that may act, and to the major part of them, their heirs or executors, full power to sell, and to assign and convey away, any or all my houses, lands and tenements, and that forever, that are not already given away in this will foregoing.” “ I order that the money and effects be distributed and divided from time to time, as it can be raised from my debts and estates, by my executors hereafter namedbut they are to be careful to keep a sufficiency undivided, to pay off all legacies as they become due, and to keep the estate as much on interest, or *rents, as they can, for the general benefit, and to be careful to take such securities for the money as they think is certainly good, by mortgages or personal securities, some security to be taken to every single person’s bond.” The testator died on the 1st of August, 1780. The will was proved in 1780, and letters testamentary granted to John and Samuel, who acted as executors; Thomas, the other executor named, declining to act</p> <p>The bill charged that from the death of the testator, John and Samuel were the only acting executors, as long as they lived, respectively, and had the sole possession, management, and disposition of the estate, and collected and took into their hands large parts of the personal estate, and sold parts of the real estate, and employed the moneys received by them in trade. That John Franklin died in September, 1801, and Samuel, afterwards, continued sole acting executor until he died in September, 1807. That John, Samuel, and Thomas, were jointly indebted to the testator, at the time of his death in a large sum, which was still unpaid; and that John and Thomas, separately, were indebted to the testator in large sums, which were still unpaid. That the plaintiff Mary, the wife of the testator, married the plaintiff Samuel Osgood, on the 24th of May, 1786.</p> <p>[ * 4 ]</p> <p>That, after the death of Samuel Franklin, the plaintiffs, Samuel Osgood, in right of his wife, and Mary Osgood, undertook the execution of the will of the testator, and the administration of the unsettled estate. That all the specific legacies were paid, and the debts discharged; that John Franklin and Samuel Franklin were, at the time of their deaths, respectively, largely indebted to the estate of the testator, for moneys and property received by them as executors, and which debts were still unpaid. That the plaintiffs had endeavored to collect and convert into money all the remaining property and estate of the testator, *in order to make a final distribution and settlement thereof. That the plaintiffs, as sole acting and surviving executors of the testator, had sold, in June, 1808, all the residue of the real estate not before disposed of or wasted, for the sum of 25,000 dollars, which they had received; which sum, and 347 dollars, due to the estate, are all they had received from the estate, and, excepting the debts before stated and unpaid, all they had knowledge of, or expected would be recovered or obtained from the estate; that Thomas Franklin, who never acted, and who was deceased, by his will, made his two sons, Walter Franklin and Thomas R. Franklin, and Samuel Pleasants, his son-in-law, his executors, (defendants,) to whom he gave all his estate; that Abraham and John Franklin, sons of Samuel Franklin, and executors of his will, were insolvents ; and that some of the executors of John Franklin, who were his sons, Thomas, Anthony, and Walter Franklin, and his son-in-law, John Townsend, were also insolvent.</p> <p>The bill called for an account and payment from the executors of John, Samuel, and Thomas Franklin, respectively, and for a discovery, and that the residue of the estate might be distributed so that the plaintiffs might be protected; and that if the sums due from the executors of Samuel, John, and Thomas Franklin, respectively, or either of them, should be found to exceed the share due to each out of the residuary estate of the testator W. F., the balance might be paid to the plaintiffs, &c.</p> <p>The answer of the executors of Samuel Franklin admitted the facts stated in the bill, except that they alleged that the sale and conveyance of the residue of the real estate by the plaintiffs was not valid, because the plaintiffs had no power to sell, and that the lands sold were of much greater value than the sum for which they were sold; and they annexed to their answer schedules and statements of all the acts and accounts of Samuel Franklin, as acting ^executor of the testator W. F., which admitted, that their testator S. F. em-pl°ye(l the money in his hands as executor, in his own business, and for which interest was charged, leaving a balance of 900 dollars; and the schedules also admitted a balance of 13,000 dollars from Samuel and John, as executors of W. F., and of 6000 dollars from Samuel, acting as sole executor.</p> <p>[ *5 ]</p> <p>The answer of the executors of John Franklin admitted most of the facts charged in the bill; but stated that they did not know whether their testator was indebted jointly or separately, or not; nor whether he was separately indebted, or had any moneys in his hands, at the time of his death, belonging to the estate of W. F. They alleged, that the sale of the residue of the real estate of W. F. by the plaintiffs Samuel Osgood, and Mary his wife, to John L. Norton and De Witt Clinton, was fraudulent, having been made collusively, and for an inadequate price.</p> <p>The answer of the executors of Thomas Franklin also admitted most of the facts charged in the bill; but stated that they knew nothing of any debt due from T. F., their testator, jointly with S. F., to Walter Franklin; and that the separate debt of their testator to W. F. had been fully paid and discharged. They alleged, that the sale of the residue of the real estate of W. F. by the plaintiffs, was void for want of power, and for inadequacy of price.</p> <p>The answer of De Witt Clinton, and Maria his wife, and of John L. Norton, and Sarah his wife, admitted, in substance, the facts charged in the bill.</p> <p>The other defendants, in their answer, admitted the facts charged in the bill, except that they were ignorant of the debts charged to be due to the estate of W. F., and of the acts of S'. F. and John F,, the acting executors; and they objected that the sale of the residue of the real estate by the plaintiffs, was void for want of power, and for inadequacy of price.</p> <p>General replications were filed to the answers.</p> <p>[ * 6 ]</p> <p>*Pending the suit, Samuel Osgood died, and Mary Osgood, his wife, afterwards died, and the suit was afterwards revived by, and in the names of, the present plaintiffs, as proper parties.</p> <p>The cross hill was filed on the 7th of June, 1809, (most of the plaintiffs being the defendants in the original suit,) against Samuel Osgood, and Mary his wife, De Witt Clinton, and Maria his wife, and John L. Norton, and Sarah his evife. It set forth the will of the testator W. F., which contained a power to the executors to sell, as follows: “ I give to my executors, that they may act, and to the major part of them, their heirs or executors, full power to sell,” &c., (a) and gave to each of his executors who should act, the sum of 200 pounds, in lieu of all commissions, &c. for executing his will. After stating several facts, as in the original suit, the bill further stated, that the residue of the real estate of W. F., which remained unsold at the time of the decease of Samuel Franklin, acting executor, consisted of the following tracts, viz. about 3,800 acres of land, on the southerly side of the Mohawk river, in all or one of the counties of Otsego, Schoharie and Montgomery; 4,000 acres of land in the same counties; about 4,600, in one or all of the same counties; a tract of land on or near lake George, the quantity of which was unknown to the plaintiffs; 850 acres in Queensberry, in Washington county; 12 lots of land on the Susguehannah river; a tract ‘of about 5,000 acres on or near Hillsborough, in the state of Vermont; another tract, of about 5,000 acres, in or near Reading, in Vermont; a tract of 1,000 acres, in or near Holton, in the same state; nine rights in the township of Cavendish, in the same state; *and fourteen rights in the township of Draper, in the same state; and that there were, as they believed, various other tracts of land, belonging to the estate of W. F., but which they were unable to particularize, the deeds, papers, &c., being in the hands of the defendants, or some of them. That the tracts of land referred to, at a fair valuation, were worth 200,000 dollars, and that sum could have been obtained for them, if reasonable pains had been taken for the disposal thereof. That Mary Osgood, as surviving executrix, had no power to sell the real estate; but if she had power, the sale ought not to be carried into effect, because the plaintiffs alleged that Samuel Osgood, and Mary his wife, John L. Norton, and De Witt Clinton, well knew the value of the said residuary estate, and corruptly and collusively agreed among themselves, for the purpose of defrauding the plaintiffs of their just proportions of the same; that the said Samuel Osgood, and Mary his wife,-by virtue of her supposed authority under the will of W. F., should execute conveyances in fee to Norton and Clinton, for all the residuary estate, for the small and inadequate sum, compared with its real value, of 25,000 dollars; and, in pursuance of such corrupt and fraudulent agreement, the sale and conveyance was made; and they insisted, that if Samuel Osgood and his wife have sold the lands for this inadequate consideration, through ignorance of their real value, their negligence in not ascertaining the value thereof, which might have been easily done, was so gross and inexcusable as to render them responsible for the full value of the lands. The bill prayed for an account; and that the sale and conveyances of the residuary estate might be set aside, and the estate sold, and the proceeds thereof distributed, &c.; or that Samuel Osgood, and Mary his wife, might account for it, at its true value, and all the title deeds, &c. be brought into Court, and that they account for the personal estate, &c. &c.</p> <p>[ * 7 ]</p> <p>[ * 8 ]</p> <p>[ * 9 ]</p> <p>*The answer of Samuel Osgood, and Mary his wife, to the cross bill, was filed the 29th of September, 1809. They stated, that the executors were appointed on condition of not being discharged from their debts owing to the testator. That the power to sell, in the will, was in these words: “ I give to my executors that may act, and to the major part of them, their heirs, or executors, full power to sell,” &c., according to an authenticated copy thereof in their possession ; that the original will was not in their possession, nor did they know where it was, unless it was in the possession of the representatives of John and Samuel Franklin, as the defendant Mary Osgood, a few days after the death of the testator, delivered it to them, and it never has been in her possession, nor has she seen it since; nor has the said Samuel Osgood ever seen the original will. That John and Samuel were the only acting executors during their lives; that after the death of Samuel, the defendant Mary, and her husband, acted as executor; that all the debts and specific legacies had been paid. They admitted all the representative capacities and rights of the plaintiffs; that they have received 347 dollars, being the whole personal estate, except what may be due from those who are entitled to distributive shares ; and that the debts so due ought to be deducted from their shares; that, as to the real estate of W. F., all they know is, that among the papers delivered to them by the plaintiffs Abraham and John, executors of Samuel Franklin, deceased, there was a deed from Peter Dubois and others, to W. F., dated November, 1772, for 12 lots of land, containing about 3,800 acres, on the south side of the Mohawk; another deed from the same persons to If. F., for 4,400 acres, on the south side of the Mohawk; another deed from the same persons, except Dubois, dated 5th of January, 1775, for 14 lots in Tryon county, containing 4,600 acres; that considerable parts of these three tracts were sold and conveyed by W. *F. in his lifetime, and that other parts thereof were disposed of by Samuel Franklin, the acting executor, in his lifetime, by deed, in fee, perpetual lease, or by contracts with allowance for improvements; but how much had been sold they did not know, though .they had diligently inquired, particularly of the plaintiffs Abraham and John, who had refused to give any information on the subject; that nearly the whole of these three tracts was covered with settlers claiming title to the lands occupied by them; that, in 1791 and 1795, what land remained unsold of these tracts, was offered for sale by Samuel and John Franklin, the executors, for 5,000 dollars, being the original price paid by W. F. That after the death of Samuel Franklin, these defendants endeavored to trace the title of W. F. to these lands, and found that he purchased them at auction; that no information could be obtained from the plaintiffs Abraham and John, executors of S. F.; that it could not be discovered that the grantors to W. F. had any title. That W. F., or his executors, had no actual possession of the lands, which were settled, and various persons claiming them had been in possession, in some instances 25 years, in others above 20 years, before the sale by the defendants, and in other cases 19 or 20 years; and that, according to the belief of the defendants, a large portion of these tracts was lost to the estate by the adverse possession of the tenants and occupants; that such was the belief of the defendants at the time of the sale by them, and was now their belief; that the defendants also received from the executors of Samuel Franklin, a deed from John Brandon to W. F., dated the 4th of July, 1771, for an island in Lake George, containing 100 acres; another deed from Joseph Fairlie, dated 4th of February, 1771, for 200 acres on a neck of land on Lake George. That if the title to these parcels were good, the land was poor, and not worth more than 300 dollars. That they know nothing of any land in *Queensberry, in the county of Washington, belonging to the estate of W. F. That they received from the executors of Samuel Franklin, a deed to W. F. for 2,363 acres of land on the Susquehannah, in 12 lots, which land is rough, and of no great value, and some of the settlers claimed title by possession. That they also received from the executors of Samuel Franklin, deeds for lands in the state of Vermont, to W. F., which they specified, in Hillsborough, Reading, and Hilton, being 11,000 acres in the whole ; a deed for 9 rights in Cavendish, and a deed for 14 rights in Draper, in the same state. That several of the titles were under the state of New-York, and were lost when Vermont became an independent state; that a considerable part of the lands have been sold for taxes, or lost by adverse possession; and for these causes, according to the best information and belief of the defendants, the title to all the lands in Vermont of W. F., has become entirely lost and extinguished, excepting about 2,000 acres in Cavendish, which is mountainous, and of little value, and the settlers on which dispute the title of ^ That to their knowledge, there are no other lands belonging to the estate of W. F., and that they were satisfied there was no land of W. F. in the county of Greene; that they cannot describe the lands, or their value, more fully or accurately; and they set forth, in a schedule,' all the deeds and papers received from the executors of Samuel Franklin, the 23d of February, 1808, for which they gave a receipt; and which were the only deeds or papers ever received by the defendants, relative to the real estate of W. F. That they never could obtain any information from the executors of Samuel and John Franklin, relative to the situation, quantity, or value of the said lands; that during a period of about 27 years, during which time the said Samuel and John jointly, and Samuel alone, as acting executors of W. F, had the care of the estate, the lands were left exposed *to settlers and intruders, and were not taken possession of by any person in behalf of the estate; and the greater part was now claimed to be held by occupants, by adverse possession; that the lands are subject to the dower of the defendant Mary Osgood, and to the payment of quit-rents, large arrears of which were due. That, under all these difficulties and embarrassments, and as no part of the lands could be recovered without much litigation and expense, the defendants deemed it best for the estate, and for those interested, to sell the whole of the residue of the estate together, en masse; that in June,.1808, they agreed to sell to Norton and Clinton the whole of the said lands, for the sum of 25,000 dollars, and accordingly, on the 11th pf June, 1808, executed a deed to S. Norton for two thirds, and to Clinton for one third thereof. That they were’advised by counsel, that the defendant Mary had power to sell the real' estate under the will of the testator ; that, in their judgment and belief, the sum for which the lands were so sold to N. and C., is their full value, and more than the defendants would have given for the same, under the circumstances stated. They fully and absolutely denied any collusion, corruption, or fraud whatever in the sale, or any secret trust, understanding, or agreement, relative to the same; and they claimed one eighth of the sum for which the said lands were sold. They further stated, that the plaintiffs, or either of them, before the sale, never applied to them to come to any settlement or distribution of the estate; nor had any, or either of the plaintiffs, since the sale, applied to the defendants to make void the same, and to have the property resold; nor had any of the plaintiffs suggested or pretended to them, or either of them, that the price obtained for the land was not its full value. That they used all the means in their power to obtain correct information relative to the value of the lands, and as to the titles, &c., and believe that the price for which *the lands were sold was a full and adequate price for the same.</p> <p>[ * 10 ]</p> <p>[ * 11 ]</p> <p>[ * 12 ]</p> <p>[ *13 ]</p> <p>The answer of De Witt Clinton, filed September 26th, 1809,-stated, that all the title deeds to the lands did not come into the hands of Osgood and Mary his wife; that the deeds from the original patentees to Dubois for the lands in Cherry Valley were supposed to be lost, and were recently discovered, by the defendant, to be in the hands of W. North, Esq. That in 1788, Norton proposed to become concerned in the purchase of the residuary estate of W. F. for 30,000 dollars, which he (Clinton) declined, thinking the price too high; that being informed, afterwards, that the purchase might be made for 25,000 dollars, he consented to be interested with Norton, and received a deed from Osgood and his wife for one third of the lands, dated June 11th, 1808; and a deed was given to Norton for two thirds of the lands, being all the lands of W. F. unsold in the United States, particularly in New- York and Vermont. That Norton made and completed the purchase. He denied all secret understanding, collusion, fraud, or unfairness between ,the parties in the transaction; and that he offered to give up the bargain, and Osgood refused. That a full price was given; and he believed that a higher price could not have been obtained. That the only .tracts of much value lie in Sharon, in the county of Schoharie; in Canajohary, in Montgomery county; and in Cherry Valley, in Otsego county, being what are called the Cherry Valley lands. The first tract contained 3,800 acres, being in the patent to P. Livingston and others; the second, 4,400 acres ; and the third, 4,600 acres; the two last tracts lying in Young’s patent. That Samuel Franklin authorized settlers to occupy, and promised to pay for the improvements, which had greatly diminished the value of the lands to him and Norton. That most of the lands are held and claimed adversely to them, and they have been obliged to commence suits to recover *the possession of a great part of these lands, the result of which cannot be foreseen. That the county is considerably settled, but the lands are hilly and rough, and he cannot form a judgment of their real value. That the island and point of land in Lake George were worth one dollar per acre. That the 850 acres in Queensberry were on a perpetual lease, at one shilling per acre; and the value about 1,500 dollars. That there was a tract of 2,363 acres, conveyed by Edward Dunscomb to W. F., the 22d September, 1771, lying in Schoharie and Otsego counties, but in what town he did not know, nor its value; but it was mountainous land, and the timber was, in a great measure, destroyed. That there was a tract of about 3,500 acres in Greene county, conveyed by Ann Morris and Joseph Gris-wold to W. F., April 23d, 1774, but he did not know in what town it was situated. That W. F. had a claim in the Waywayarda patent in Orange county, but he understood and believed that the title was bad. That the titles to the lands in Vermont had been partly lost by the independence of that state, and part by sales for taxes, and to most of the lands there were claims of adverse possession, so that the whole was considered and believed to be of very little value. That he was advised by counsel that Mary Osgood had a good right of dower in all the real estate of which W. F., her husband, died seised.</p> <p>The answer of John L. Norton was substantially the same as that of De Witt Clinton.</p> <p>Replications were filed to the issues and testimony taken in both causes, but chiefly in the cross cause, it being agreed that the depositions should be used in both.</p> <p>The plaintiffs in the cross bill gave in evidence a release of Mary Osgood, dated May 11th, 1786, whereby she released to the executors,of her husband, W. F., deceased, all her right to dower in his estates, except such parts as were situate in the city of New-York, or on Nassau Island.</p> <p>[ * 14 ]</p> <p>*W, T. Robinson, in or about December, 1806, had a conversation with De Witt■ Clinton, about the lands belonging to the estate of W. F., in which Clinton said they were worth about 100,000 dollars; and the witness, a few days after, mentioned what Clinton had said to Samuel Osgood. Another witness stated, that he was at Cherry Valley in July, 1808, and saw Norton there, who was then surveying the lands, and said, he would not take 26 dollars per acre, and that he should not be obliged to bring many ejectments. Seven or eight witnesses, being persons living near the Cherry Valley lands, deposed, that in their opinion those lands were worth from 10 to 15 dollars per acre, in the year 1808. It was testified, that some of the land lying on the turnpike road was sold by the agent of C. and N. in 1809 for 15 dollars. That in 1786, Col. Corsa left a paper in Cherry Valley relative to the lands of W. F. That many of the settlers were waiting to purchase, if they were satisfied as to the title of C. and N. Others refused to acknowledge any title in W. F. or C. and N. That in 1808, C. and N. said their title was good.</p> <p>John Lawrence, a witness for the defendants, testified, that some years ago he passed through the lands in Cherry Valley, and was at the house of one of the settlers, who said, they had gone on the land under some agreement with the executors of W. F., but no title had been given to the settlers. That, afterwards, he was asked by Samuel Osgood what he would give for these lands, and whether he would give 25,000 dollars; and the witness said that, considering all circumstances, he would not give that sum in cash, for there might be trouble with the settlers.</p> <p>[ * 15 ]</p> <p>Another witness testified, that in 1786, Col. Isaac Corsa was at Cherry Valley, and said, he was authorized to sell or lease the lands of W. F.; and left a paper containing the numbers of the lots and quantities, and inviting persons to settle on the lands; and that if the lands were sold to any *other persons, the settlers should be paid for their improvements, the value thereof to be ascertained by two persons "mutually chosen by the parties. The witness had lost the original paper, and had no copy. That 50 or 60 persons, in consequence, settled on the lands, in expectation that the terms of settlement so held out would be fulfilled, and they claimed compensation for their improvements. These terms were afterwards recognized in a letter of Samuel Franklin, written to some of the settlers, June 25th, 1791; and again, in November 27th, 1793. John and Samuel Franklin gave a writing to the same effect, saying, that the settlers should have a preference as purchasers, or lessees.</p> <p>Samuel Campbell proved the agency of Col. Corsa, and the recognition of it by Samuel Franklin, the executor, who conveyed to the witness, in 1791, 150 acres, at two dollars per acre.</p> <p>Jobes Hammond, who was agent for C. and N., deposed, that in 1808, all the settlers, except a few individuals, refused to attorn to C. and N. Some of them denied the title of C. and N., and others relied on their own adverse possession, and all refused to give up possession, unless paid for their improvements, according to the terms offered by Corsa. That several suits were brought, and were still pending. That some of the settlers sold their improvements for from nine to twelve dollars per acre; that the value of their improvements was, at least, one half the present value of the lands, and that under these embarrassments the value of the land was nominal only; that the timber had been much wasted; that the average value of the lands in June, 1808, was not more than two dollars and fifty cents per acre on an average. That the whole quantity of the Cherry Valley lands, claimed by C. and N., was about 12,000 acres, besides four lots, which had been sold by Samuel Hake, and for which C. and N. had brought suits, which were still pending; that if these lots were included, the whole would *be about 13,000 acres. Calvin Rich, a witness, residing on the land, was of opinion, that in June, 1808, the lands, free from all embarrassments, were worth 19 dollars per acre. statech that the tenants, generally, refused to acknowledge the title of C. and N.; that the timber had been wasted, and that the compensation claimed for improvements, in general, exceeded the price of the land.</p> <p>S. Riker deposed, that in 1809, 19,000 acres of land lying in Belvidere patent, in Otsego county, had been sold at auction in the city of New- York, at two dollars and fifty cents per acre; and on being put up a second time, brought only two dollars per acre.</p> <p>Two of the plaintiffs, in the cross cause, Abraham and John Franklin, having been discharged under the insolvent act, in 1811, and one of the plaintiffs having died, a bill of revivor and supplement was filed the 25th of February, 1812, making the assignees of the insolvents, and the executors of the deceased plaintiff, parties; the assignees appeared d submitted their rights to the Court, and the bill was ken, pro confesso, against the others, and revived.</p> <p>Afterwards, Samuel Osgood, one of the defendants to fie cross bill, having died, in August, 1813, and Sarah Corsa, one of the plaintiffs, having also died intestate, a bill of revivor and supplement was filed the 27th November, 1813, and the suit was revived against Mary Osgood, as executrix of the last will of Samuel Osgood, and against the administrations of Sarah Corsa.</p> <p>[ * 17 ]</p> <p>On the 4th of October, 1814, Maria, the wife of De Witt Clinton, and Sarah, the wife of John L. Norton, were, by order of the Court, made parties to the suit; and Mary Osgood having died on the 6th of October, 1814, a third bill of revivor and supplement was filed the 1st of December, 1814, in which it was stated, that Mary Osgood, by her will, dated 27th of July, 1814, after certain specific legacies, devised the residue of her estate, real and personal, to her children, against whom, and the executors of *Mary Osgood, who were her son and two sons-in-law, the bill was revived, and they are the present plaintiffs in the first original cause ; and,' with De Witt Clinton and his wife, and John L. Norton and his wife, are the present defendants in the cross cause.</p> <p>The last bill of revivor and supplement to the original cross bill stated, that Clinton and Norton had sold parts of the residuary estate of W. F., purchased by them, for more than 110,000 dollars, which has been paid part in money, and part by bonds and mortgages; and that they still held a large and valuable part of that estate unsold. C. and N., in their answer, admitted that they had sold part of the lands, and retained certain but not received any accounts from their agents, they could not speak with certainty as to the amount, but did not believe it was 110,000 dollars.</p> <p>The several causes came on to be heard together, on the 29th of September last.</p>

[ *31 ] THE plaintiff, being possessed of a lease from B. W. and others, of a farm of about 309 acres, (parts of lots 8, 9, and 10, in Crosby’s manor,) dated in November, 1806, for eleven years, subject to an annual rent of 75 dollars, on the 26th of May, 1808, assigned the lease to the defendant Thomas Gillespie.

THE bill was filed, in this case, to set aside a conveyance made by the defendant Comfort Sands, to the defendant. Robert Sands, of certain lands in Brooklyn, on which a ropewalk is situated, as fraudulent against the plaintiff, who purchased the same at a sheriff’s sale, under an execution against Comfort Sands. Amie I. Barbarme, the other defendant, was a tenant in possession, nominally, it was said, under Robert Sands.

[ * 52 ] ON the 31st of December, 1807, the plaintiff Brockway Was committed to gaol on a ca. sa. issued out of the Supreme Court, at the suit of Benjamin laUmadge, and seven others, defendants, for 2,677 dollars and 24 cents. On the 31st of March, 1808, Lyon, the plaintiff, and Dewey, defendant, became security to Richmond,, defendant, sheriff of the county, for the gaol liberties granted to Brockway.

[ * 63 ] HENRY HART, the father of the plaintiff, died intestate, in May, 1788, leaving the plaintiff, then about four years old, a younger son, and his wife, surviving. The plaintiff’s brother died, under age, without issue, and intestate, and the plaintiff’s mother also died, intestate; and the plaintiff became entitled, as heir at law, to all the real and personal estate of his deceased father.

THE bill prayed for a partition of land, and for an injunction to stay waste in cutting down and carrying away the timber. It stated, that the plaintiff and defendant owned the land as tenants in common, in equal undivided moieties, and that the defendant is in the actual possession of the whole by himself, or his tenant, and is cutting down the timber, and threatening to persevere; but admitted the plaintiff’s title as tenant in common.

PETITION of Jonathan Perkins, stating that Daniel Perkins, now of Bridgewater, in Massachusetts, had been there duly found, by inquisition, a lunatic, and that the petitioner had, by the competent authority in that state, been appointed guardian of the person and estate of the lunatic.

[ * 126 ] THE original bill was filed on the 21st of June, 1810, to foreclose a mortgage given by the defend'ant Annin, on the 1 st of August, 1808, to secure the payment of three bonds, for 500 dollars each. The first bond had been paid; the principal and interest on the second became due the 21st of May, 1810; and the principal of the third was payable on the 21st of May, 1811, with interest.

THE petition of the defendant Caleb Ellis stated, that, on the 20th January, 1815, it was decreed, in this suit, that the petitioner, and Isaac Rowland, defendant, should convey to the plaintiff, in fee, their right to an undivided moiety of a lot of land, mentioned in the plaintiff’s bill, and that it be referred to a master to ascertain the value of the saw logs and timber, cut or carried away from the lot by the defendants, or either of them, and that the defendants…

MOTION by Garr, for the defendant Juliana Smith, to set aside a decretal order for the sale of mortgaged premises, and under which a sale had been made, but no conveyance executed.

THE bill was for specific performance of a parol contract to execute a lease for three lives. No discovery was prayed for. An action of ejectment was pending at law; and the bill prayed for an injunction, which was granted in 1814. An answer was not yet put in by the defendants.

[ * 142 ] THE bill, which was for a divorce, stated the marriage of the parties in Ireland, in 1799; their removal to this state in the same year; that they have five children ; that the plaintiff is entitled to a large real estate, and the defendant has no property of his own. That he is intemperate, and of a violent temper, and treated the plaintiff and her children cruelly; that he has attempted, by threats and coercion, to make her dispose of her property for his use.

[ * 145 ] THE bill stated, that the defendant Doty, on the 24th of October, 1815, purchased of the plaintiffs goods to the value of 1,262 dollars and 55 cents, on a credit of six months, which sum was now due. That the defendant Doty, in 1815, gave the plaintiffs his note for 1,255 dollars, for other goods sold, and which note was due, and a balance thereon unpaid of 609 dollars and 18 cents.

ANTHON, for the plaintiff, moved for an order to examine Francisco Toone, de lene esse, as a witness on the part of the plaintiff, on an affidavit of the witness, stating that he is not a resident of New-York, and is a mariner, and has concerns which require his immediate attendance at the Havannah; that he has been prevented from returning to the Havannah, from whence he lately came, at the request of the solicitor and agent for the plaintiff, in order to give testimony in…

[ * 149 ] THE bill was filed the 27th of February, 1815, against Graves and four other defendants, for an account and set-off. *Graves, Armitage, and Sharp, three of the defendants, put in their answers on the 21st of September last, since which there had been no proceedings on the part of the plaintiff.

• THE plaintiff had brought an action at law against the defendant, as endorser of a promissory note, and the defendant pleaded the statute of limitations.

THE bill, in this case, was for a specific performance of a contract to convey land. Dyer had, in his lifetime, taken possession, made improvements, and paid the full consideration which he was to give for the land, according to the articles of agreement.

WOODWARD, for the defendant, moved to set aside a sale of the mortgaged premises made under a decree of this Court, as being unduly conducted, and made in the absence of a master.

THE plaintiff Winter was a trustee of certain lands in Cosby’s manor, and other tracts, to and for Patrick Heatley, the owner, who has since released the estates to Temperance Green.

<p>A purchaser is chargeable with notice of a suit pending in this Court; and after such notice all further proceedings towards completing the purchase, or paying the money, are fraudulent and void. A denial of notice of the pendency of the suit is not sufficient, if the defendant at the time knew the character of the person of whom he purchased, that he was a trustee, and had no power to sell.</p> <p>see Murray v. last case,</p>

<p>THE bill, which was for an injunction, stated, that the plaintiff is owner of a farm in the village of Newburgh, through which a stream of water has, from time immemorial, . run, having its source from a spring in the adjoining farm of the defendant Hasbrouck, and after entering the plaintiff’s land, continues its whole course .through his farm, until it empties into the Hudson river. That this stream greatly fertilizes his fields, and, running near his house, serves for watering his cattle, and for various domestic and economical purposes. That it supplies water to a brick yard on the farm of the plaintiff, where most of the bricks used in Newburgh are made; it also supplies a large distillery erected by him at great expense, and a *churning mill, and water for a mill-seat, where the plaintiff is about to erect a mill for grinding plaster of paris. That the trustees of the village of New-burgh, the defendants, by false representations, obtained an act of the legislature, passed the 27th March, 1809,† to enable the said trustees to supply the inhabitants of the village with pure and wholesome water. That the trustees applied to the plaintiff for leave to divert the stream, offering him a trifling and very inadequate compensation, which he refused. That the said trustees having obtained leave from the defendant HasbroucJc, the owner of the spring, to use and divert the water, or a part thereof, that is, a stream one inch and a quarter in diameter, taken from a great elevation, have commenced a conduit, and threaten to divert the stream, or a great part thereof, from the plaintiff’s farm. That the plaintiff is apprehensive that if this is done, there will not, in a dry season, be water sufficient even for his cattle, &c. The plaintiff, therefore, prayed an injunction to prevent the defendants from diverting the water, &c. The bill was sworn to, and the plaintiff produced several affidavits, which stated that the stream was not more than sufficient for the distillery, brick yard, &c., of the plaintiff, and if diverted through a pipe, or tube, of the proposed diameter, would greatly injure if not render the works useless. One of the affidavits stated, that the whole stream would pass through a tube of one inch diameter, with a head of five feet.</p> <p>[ * 163 ]</p>

THE bill, which was for an account and a ne exeat, stated that the plaintiffs were merchant tailors, and had sold clothing to the defendant on a credit of six months; that on the 1st of January last, there was a balance of account due to them from the defendant, with interest, of .317 dollars and 85 cents.

[ * 173 ] THE bill, in this case, was to set aside a conveyance made to the defendants Sudam and Elmendorf, under an ^execution directed to the sheriff of Ulster county. B. Gar-denier, being indebted to the executors of N. Evertson, deceased, (plaintiffs,) in the sum of 2,000 dollars, on the 5th of October, 1807, executed a mortgage to them of certain lands in Hurley, in the county of Ulster.

THE bill stated, that M. & W. Ward, booksellers, and partners, being seised of fifty lots of land in the 9th ward of the city of New-York, on the 27th of January, 1810, conveyed the same to the defendant, by an absolute deed, but *which was intended only as security for some temporary purpose, or if for security for money due, it was for money due on a usurious contract; and the temporary purpose (if any) for which the deed was given, was accomplished before the 27 th of…

THE bill in this case was filed for the sale of mortgaged premises, mortgaged to the plaintiffs by the defendants, as trustees, in pursuance of a trust contained in the deed to the defendants, for lands in the city of New- York, commonly known by the name of the Washington Hall, purchased by a joint fund, raised by a subscription in shares, by above 250 subscribers. The title to the property was never in the subscribers.

THE defendant was brought up on habeas corpus, allowed by the chancellor under the habeas corpus act; and the return stated, that he was detained in custody by virtue of the following warrants of commitments, viz. A mittimus, issued by J. Hedden, one of the justices of the city of New-York, on the 17th of August last, for that the prisoner was charged with a misdemeanor, alleged to have been committed within the state of Kentucky, in procuring money by false pretences. 2.

[ * 203 ] THE bill stated, among other things, that the plaintiff Roberts, on the 22d of March, 1810, took an assignment from Aaron Lyon, of a bond and mortgage of William Griffith, for part of a lot, and a house thereon, in Newburgh, for which he paid Lyon the balance due on the mortgage: that the plaintiff Roberts took possession of the mortgaged premises, and also of the residue of the lot belonging to Griffith, who was his debtor, and absconded.

WELLS, for the plaintiff, presented a petition, sworn to, and accompanied with due notice of the application, to have the final decree, which was entered in this cause on the 14th of July, 1815, corrected, by adding to it supplementary provisions.

THE bill stated, that the father of the plaintiff’s wife died intestate, leaving five children, and a large real and personal estate ; that part of the real estate, by the consent of the plaintiff, and the proceeds of what had been sold, are in the hands of the defendant, who refused to account, &c- The bill prayed that the defendant might account, and pay over the money to the plaintiff.

THE bill, which was filed the 12th of July, 1805, was for an account between the parties, who were partners in trade The defendant put in an answer in June, 1807, which was excepted to, and an amended answer filed in October, 1807. The plaintiff having filed a replication, witnesses were examined, exhibits proved, and publication being passed, the cause was brought to a hearing in June, 1814.

BILL for a divorce, for cruel usage. It stated the particulars, and then added, that “ the complainant doth charge that the said defendant hath, in numerous instances, both before and since their separation, committed adultery in this state and elsewhere.” The answer denied the charges. A replication was filed, and the cause put at issue.

BILL for an injunction to stay proceedings at law. The injunction was granted on the 28th of September, by a master, in the absence of the chancellor.

[ * 229 ] THE bill stated, among other things, that, in November, 1814, one Willoughby delivered to the plaintiffs a quantity of cider, to be kept until it was sold, and the plaintiffs advanced to him 400 dollars, on his agreeing to permit the cider to remain as security for the advance, paying the storage, and giving them authority to sell the cider. That the plaintiffs, accordingly, sold the cider, the proceeds of which amounted to 478 dollars and 41 cents.

A PETITION of John Barker, and Mary Dederick, was presented, stating, that they are the children of James Barker; that he now is, and had been, for four months past, so far deprived of reason and understanding, as to be wholly unfit and unable to manage his affairs; and praying that a commission, in nature of a writ de lunático inquirendo, might issue, &c. [ * 233 ] *The affidavits annexed to the petition stated, that the petitioners were the only surviving children of J.…

[ * 239 ] THE bill stated, that a religious society was formed at Jerusalem, in the county of Ontario, denominated “ The Society of Universal Friends,” of which Jemima Wilkinson was the founder and head.

THE object of the bill was to obtain a decree for the distribution of the estate of the intestate among the next of kin, so that the administrator might be protected. The defendant Catharine Hauett was one of the next of kin, and one of the claimants of a distributive share.

THE bill stated a debt due to the mother of the testator from the lunatic, who assigned it to the testator, &c., amounting to 509 dollars and 48 cents; that- a commission of lunacy issued against W V. C. defendant, and he being found a lunatic, his two sons were appointed a committee, &c. That they neglected to file an inventory of the lunatic’s estate, &c., pursuant to the directions of the statute; that the plaintiffs do not know what is the amount of the personal estate…

THE plaintiff is an infant daughter of Frederick Davoue, deceased, who, by his last will, bequeathed to her, and her sister Ann, (one of the defendants, and wife of the defendant Fanning,) 5,000 dollars each, “ to be paid out of the bulk of the property,” when they should become of age, or marry.

[ * 273 ] THE bill stated, that the plaintiff was seised, in common with the defendant, of 6£ acres of land, with two falls mill-seats thereon, and a grist-mill also, on Coxsackie creek. That on the 8th of December, 1808, he agreed with the defendant for a partition, which was made, and the west half of the land, with the upper fall and mill-seat, were set off to the plaintiff, and the residue, with one fall and mill-seat, and the mill, set off to the defendant.

THE bill was ¡filed to correct a mistake charged to have arisen in drawing an agreement between testator and defendant, respecting the payment of certain moneys by the defendant to Dirick Van Schelluyne, for and on behalf of the testator.

[ * 277 ] THE bill stated, that the plaintiff, on the 12th of March, 1814, demised to the defendants a farm of 150 acres, with certain furniture, stock, and farming utensils thereon, for the term of four years, commencing May 1st, 1814, at the yearly rent of 60Q dollars, payable quarterly.

[ * 282 ] THE bill stated, that the plaintiff is seised in fee of lot No. 13, in Young’s patent, in Sharon, in Schoharie county, and that he, and those under whom he holds, have been in possession for upwards of twenty years. That the defendant Hill possesses lot No. 41, adjoining it, under the defendant Murray. That Wm. Honey, who possessed lot No. 41, about six or seven years ago, erected a carding machine, within a few feet of the line between them.

THE bill was filed, on the 3d of June, 1809, by the plaintiff, (a judgment creditor of Robinson & Franklins,) against William T. Robinson, Abraham Franklin, John Franklin, Henry Franklin, Matthew Franklin, Benjamin G. Minturn, John T. Champlin, Jacob Walden, and Thomas Walden, and several others, as mortgagees, made parties, pro forma.

[ * 318 ] THE parties in this suit were copartners in trade, in the bookselling business, and on the 3d of March, 1815, the plaintiffs filed their bill to obtain a dissolution of the copartnership, on various charges of abuse of trust, and misconduct in the defendant, as a partner. The term of the copartnership had some years still unexpired. An injunction was obtained, prohibiting the defendant from interfering with the partnership business.

THIS suit was brought to determine a controversy relalive to certain plains, marshes, and a beach, situate in the town of Hempstead, in the county of Queens, before the division of that town into two towns, by the names of North Hempstead and South Hempstead, and which were, after that division, situate in South Hempstead, now called Hempstead.

[ * 340 ] THESE were original and cross suits. The original bill, filed the 30th of September, 1813, stated, among other things, that the defendants in that suit, on the 18th of February, 1792, by indenture, leased to Robert Underhill and to the plaintiffs, Abraham, and Joshua Underhill, and to Thomas *and William Burling, a mill-place and land, at Croton, of 70 acres, for the term of 21 years from the 1st of May, 1792, at the annual, rent of 40 pounds a year; and it was…

THIS was an information filed by the attorney-general, ex officio.

[ * 392 ] THE bill, in this case, was filed by the wife against her husband, under the 10th section of the “ act concerning divorces, and for other purposes(session 36. ch. 102. 2 N. jR. L. 197. 200.) and the acting executor of her father, complaining of ill usage by her husband, and of his neglect to provide for her; and stating that the plaintiff, under the will of her father, was entitled to a portion of his estate, which had been sold, and her share, being about *500…

[ * 395 ] JOHN BEDIENT and Walter Hubbell were copartners in trade. Hubbell died in August, ] 803, intestate, leaving a widow and two children. Bedient was discharged under the insolvent act, on the 24th of October, 1807, and David R. Lambert and Wm. M Intire were his assignees. The partnership, in the lifetime of Hubbell, was indebted to John Sells, deceased, in two notes, on which separate judgments were obtained at law, against Bedient, as surviving partner, in May, 1807.

THIS was a suit by the creditor of a lunatic, to obtain a sale of his real estate, for the payment of the debt, in case the personal estate was found insufficient, &c. [See ante, S. C. p. 242.] The bill having been taken pro confesso, an order of reference was made to the master, to ascertain the amount of the personal and real estate of the lunatic, and the amount of the plaintiff's demand.

[ * 406 ] THE bill, filed March the 9th, 1815, stated, that the plaintiff, on the first of May, 1813, applied to the defendant for the loan of 900 dollars, to which the defendant agreed, provided he was permitted to purchase in a farm of the plaintiff, bought by him of S. Skidmore, subject to a mortgage *given by Skidmore to J. Bogardus, and which was advertised for sale under that mortgage, as security for the payment of the loan.

[ * 419 ] THE bill stated that David Reed, being indebted to the plaintiff, assigned to him, on the 12th of March, 1814, as security for the debt, a bond and mortgage of O. W. Van Twyl, to Reed, dated the 1st of January, 1813, for 1,000 dollars. That when the plaintiff took the assignment, he supposed the premises free from all encumbrances.

BILL for a legacy, filed the 3d of October last. The defendants put in their answer the 13th of December, and the plaintiff filed his replication the 4th of January last. The plaintiff now presented a petition for leave to withdraw the replication, to enable him to except to the answer, and to amend his bill. The petition was not sworn to: a copy of it, with notice of the motion, was duly served on the solicitor of the defendants.

PETITION to enlarge publication, for six weeks, to examine witnesses. The petition admitted that publication had passed, but an affidavit accompanied the petition, that the depositions taken had not been read.

<p>A rule to produce certain bonds before the examiner, for the inspection of the opposite party, will not be granted, where the existence of one of the bonds is denied, and the other is denied to have been received by the plaintiff for the purpose alleged by the defendant; but a cross bill,' or bill of discovery, is the proper remedy.</p>

[ * 431 ] BILL stated, that the complainant was imprisoned on a ca. sa., issued in favor of the defendant, on a judgment at law; that he had an estate, real and personal, much more than sufficient to pay the judgment. That he owed no other debt than that on which he was imprisoned. That the recovery *against him was in an action of slander, and that the execution had been stayed by order of the Supreme Court as to the costs.

BURR, for the defendants, moved for leave (publication having passed) to examine witnesses, on an affidavit stating that the defendants had several material witnesses to examine ; and, on the further usual affidavit, that the defendants, or their solicitor, had not seen or been informed of the depositions taken, and would not, &c.

PETITION, by N. Crumb, guardian of S. W. Brower, an infant, stating that he was appointed guardian, by the surrogate of Otsego, on the 12th of January, 1816; that he is desirous of being discharged from his trust, and praying that his accounts may be referred to a master, and he be discharged.

THE petition of the committee of the person and estate of the lunatic stated, that they had expended all his estate in his necessary maintenance, and had even incurred considerable expense, beyond their means of indemnity; and it appeared, by the report of one of the masters of this Court, that he had examined the accounts of the said committee, and the allegations appeared to be true, by the schedule annexed to the report.

IN 1809, a bill was filed against Winter, who held certain lands in Cosby’s manor, in trust for P. Heatly and others, in behalf of the cestui que trusts, charging him with a fraudulent breach of trust, and an injunction was issued against him, in February, 1810, enjoining from acting as trustee, and from selling any of the trust estate, or assigning the securities or proceeds thereof, &c. (Vide vol. 1. p. 26. 60. 77. 566.) Winter, notwithstanding, sold a lot of land, part of…

[ * 449 ] SAMUEL ADSIT, deceased, in his lifetime, was seised of a farm in Dutchess county, and the plaintiff, who is his grandson, lived with him several years, in order to manage the farm, and take care of him and his wife, they being very aged.

HENR Y, in behalf of the defendants, moved, that all further proceedings in this cause, on the part of the plaintiffs, be staid, until the costs of certain suits in ejectment, in the Supreme Court, were paid.

[ * 464 ] THE plaintiffs are seised of lands in Newburgh, adjoining the east side and south end, and including part of a small lake or pond, called the “ Great Pond,” lying on both sides of the Passaick creek, or outlet of the pond ; and have, on the outlet, about 70 rods distant from the pond, a grist-mill and a saw-mill.

[ * 476 ] PETITION stating that the petitioner’s late husband, Joseph Ferine, and herself, on the 24th of December, 1813, filed their bill against Simon Swaim, and Dorothy his wife, and John Dunn, stating, that the defendant S. S. the father of the plaintiff, by deed dated 14th of November, 1794,- conveyed to her, in fee, 90 acres of land in Richmond county, and also 9 acres of salt meadow; that she and her husband permitted him to continue in possession; that after the…

THE plaintiff, on the first of May, 1808, sold to Daniel S. Dean, defendant, about 2,000 acres of land, in Dutchess county, and took his bond and mortgage to secure the purchase money. The mortgage was not registered until the 16th of August, 1808.

AN order was obtained and served on the plaintiff’s solicitor, for liberty to prove, at the hearing, certain exhibits therein specified, viz. certain letters written by the plaintiff to the defendants, and also an agreement between the plaintiff and one of the defendants, and also certain proceedings in the Circuit Court of the United States, for the district of New-York, and a certain order by the plaintiff on the defendants.

[ * 485 ] BRINCKERH OFF, and Hoffman, for the plaintiff, moved for an order, founded on the pleadings, proofs and decree in this cause, that the defendant Henry Franklin account before a master for the rents and profits of the real estate, mentioned in the pleadings to have been conveyed by the defendants A. &f J. Franklin, to Henry Franklin; and that he state, on oath, to the master, the parts of the real estate conveyed by him, and to whom, and the time when, and the…

BILL to foreclose a mortgage executed by the defendant to the plaintiff, on the 24th of March, 1813, on a lot or parcel of land at Clifton Parle, in the town of Halfmoon and county of Saratoga, containing about 180 acres, to secure the payment of 3,000 dollars, in seven years from the 1st of April, 1813, with interest, annually. The master reported 752 dollars and 16 cents due for interest. The bill was taken pro confesso.

[ * 489 ] PETITION by the three executors of Vail, defendants, stating that they had been informed, within a few days, that, in 1808, or 1809, a suit was brought, in the Supreme Court, by Thomas Brush, and Deborah his wife, against Moses Blachly, (defendant,) to recover moneys received to the use of D. Brush, as administratrix of George Wiser, deceased.

[ * 494 ] THE bill, filed May, 1807, stated, that the plaintiff was duly appointed public administrator in the city of New- York, under the act (sess. 38. ch. 157.) relative to persons dying intestate, and leaving goods and chattels in the said city. That William Alexander Williams, late a merchant, resident at Buenos Ayres, died there, the 7th of January, 1807, leaving goods and chattels now in the city of New-York.

THIS was a question of practice, as to the mode of taking testimony, on an order of reference, before a master, and came up on the report of James A. Hamilton, one of the masters of this Court.

THE petitioner stated, that on the 18th of April last, he purchased the building called Washington Hall, under a decree of this Court. That Isaac Sebring, and four other persons, as trustees of the stockholders of the said hall, mortgaged the premises to Henry A. Coster, to secure the payment of a bond executed by the said Isaac Sebring, for the payment of 25,000 dollars. That the trustees mortgaged the premises to John Van Vechten, for the use and indemnity of Sebring.

CRAIG, for the plaintiff, moved for an attachment against Stephen S. Clay, for refusing to complete a purchase, in this case, made on a master’s sale, under the decree of the Court. , On the 12th of March last, it was decreed, that so much of a tract of land, of 480 acres, in Yorktown, in Westchester county, belonging to the lunatic, as should be sufficient to raise 736 dollars 24 cents, with interest from the 30th of October preceding, and costs, be sold, dzc.

JOHN BEDIENT and Walter Hubbell were partners in trade, prior to 1803. The partnership was dissolved, by the death of Hubbell, in September, 1803. At his death, the firm was indebted to Thomas Holm.es, of Bristol, in England, who died in 1808; and, on his estate, letters of administration were granted, in this state, to the plaintiff.

THE bill charged, that Daniel Baldwin, in his lifetime, procured a deed from the plaintiff, of a house and lot, in Brooklyn, by fraudulent representations and practices; and that the defendant Hubbs was concerned with Baldwin in the fraud; and that, immediately after the deed was so procured, Baldwin confessed a judgment to Hubbs for 839 dollars, which Hubbs, shortly thereafter, assigned to the defendant Bobbins, and, as the bill charged, with knowledge of the fraud.

[ * 514 ] MOTION on the part of the defendants, to strike out the following part of the decretal order of the 5th of last May, viz.:—“ And that, for the better taking the said account, and discovery of,» and concerning the several matters aforesaid, the parties shall produce before the said master, on *oath, all books, papers, and writings, in their custody or power, or in the custody or power of any of them, relating thereto, and shall be examined upon interrogatories as…

[ * 520 ] THE bill stated, that, in the year 1805, the testator offered to sell to the plaintiff a farm, which he then possessed, at a fair price; and represented that he was the true and rightful owner of it, and would give, or procure to the plaintiff, a perfect title; that, giving credit to the testator, the plaintiff, on the 18th of April, 1805, agreed to purchase the farm for 2,500 dollars; 1,000 dollars to be paid on receiving the deed, and the residue to be secured by…

[ * 527 ] THE bill stated that the plaintiff, and Abraham Dayton Reuben Wheeler, William Raymond, jun., Nathan H. Raymond, Abner S. Hitchcock, and Nathan Dean, defendants, and Ira Hall, on the 10th of April, 1815, formed an association, in writing, called The Granville Cotton Manufacturing Company, with a president, and from two to four directors; and that it was agreed, among other things, to be the duty of the president and directors, to appoint a general agent, to…

[ * 538 ] THE plaintiff, in May, 1809, married Eliza Oothout, who was seised in fee, in her own right, of a house and lot (No. 56) in Greenwich street. After the marriage, the plaintiff expended 2,500 dollars in repairs and improvements on the *house.

MOTION by the infant, by the defendant Garr, as her guardian, that her name be struck out of the bill, or that the suit, as to her, be staid until she come of age; on petition and affidavit of the infant, that she is neatly 17 years of age, and lives with the defendant, her guardian, and that the suit has been commenced without her knowledge, and that she believed it groundless.

MOTION on the part of the defendant, for an order that the master (Francis Arden) furnish certified copies of the minutes of testimony taken in this cause before the late master, (F. Ball,) and before himself, as the same are now in his possession; and all notes and memorandums made upon the said testimony by them, and also the several vouchers produced and offered in evidence before him, in relation to the several matters of charge and discharge, on the taking of the said…

[ * 547 ] THE bill stated, that the defendant and John M. Pierson were seised in fee, as tenants in common, of four acres of land, in the village of Ithica. That Pierson died ; and, by will, devised his property to his wife Amelia, and made her and two others his executors. That she and the defendant made partition of the land, and the east part, or two and a half acres, was released by her to the defendant, and the residue released by him to her.

HENRY, for the defendants, moved to dissolve the injunction which had been issued in this cause, on the ground that the answer denied all the equity of the bill. The bill was for an account of the partnership concern, after a dissolution, and to enforce a sale at law, under a judgment confessed by H. Payne, one of the partners, after the dissolution, for his separate debt, due the other defendant, A. Payne, and under which judgment partnership property had been seized.

B. ROBINSON, on the part of the defendant H. Hodgson, moved for an order to examine the defendants Eastburn and Downes, as witnesses for him. He contended, that it appeared from the pleadings, that they were not interested, and were made defendants, pro forma. He cited 1 P. Wms. 596. 1 Johns. Ch. Rep. 246, 247.

BILL for a discovery and account, and for an injunction to restrain the defendant from proceeding at law on an award, &c. The grounds stated, were, 1.

[ * 555 ] THE defendant Fowler being indebted to the defendant Baldwin, on the 10th of October, 1806, in the sum of *332 dollars and 89 cents, he, together with the plaintiff, as his security, executed a promissory note for that sum to Baldwin, payable on demand, with interest.

<p>An assignment by a debtor of all his property in trust, to pay the trustees, and such other creditors as the debtor, in one year, by deed, might direct and appoint, &c., reserving a power to appoint new trustees, and to revoke, alter, add to, or vary the trusts, at his pleasure, is fraudulent and void.</p> <p>The trustees, under such deed, were decreed to account for the proceeds of the properly received by them under the assignment, with interest, deducting their commissions and charges; and to be entitled only to come in, pari passu, with the other creditors, for their ratable proportion of the debtor’s estate.</p> <p>. Though as-^"tme“tvsith ™ power of rovogooTm^miiy settlements, yet</p> <p>a power of revocation, reserved by a debtor, in an assignment of his property to pay certain creditors, renders the instrument fraudulent and void.</p> <p>In equity, the rule of distribution is equality, and creditors are paid, pari passu, in ratable proportions.</p> <p>Where there is no bankrupt law, the principle of which is equality among creditors, an insolvent debtor may prefer one creditor to another 5 but such preference is to be viewed with jealousy, and should be strictly construed, so as to guard against abuse and fraud.</p> <p>The law recognizes no distinction among creditors, or of such debts as are honorary or privileged to be paid before others.</p>

<p>der6 an Assign-" meat fraudulent though a credit- or will be or-count foraiuhe property reth^afsignmeíít* with interest, commissK>nshlS and costs, and pajsu^with^the other creditors, proportion*'3 of the debtor's es-tale'</p> <p>Equity relieves against a mistake, as well as against fraud, in a deed or con trarsríñ writing; and parol evidence is admissible to prove the mistake, thotigli it is demefl'in' “tlíe" answa~; and^iis,’eitl)ér"wEére~flie plaintiff seeks relief, affirmatively, on the ground of the mistake, or where the defendant sets it up as a defence, or to rebut an equity.</p> <p>As where a trustee for an infant, in 1799, agreed to sell 200 acres of land, (part of a lot, containing 250 acres,) and executed a'deed to the purchaser, (a tenant on the lot,) which described the premises by metes and bounds, “containing 200 acres, more or less;” and the bounds included the whole lot, or 250 acres; and the trustee died in 1814, without taking any measures to have the mistake corrected, though she expressed her intention to do so, in 1806; and the ceslui que trust, immediately after her death, filed a bill for relief against the mistake; the vendee was decreed to re-convey to the plaintiff the 50 acres, without any allowance for valuable improvements made thereon; they being made after he knew of the mistake, and had declared his intention to take advantage of it.</p> <p>The evidence to show a mistake in a written instrument must be clear . and strong, so as to establish the mistake to the entire satisfaction of the Court.</p> <p>-> And, it seems, that parol evidence of confessions or declarations of the defendant, as to the mistake, made 13 years before, if uncorroborated by other facts or circumstances, will not be sufficient.</p>

[ * 604 ] IN October, 1801, John R. Johnson executed a bond, for 500 dollars, and a mortgage of a lease, for a term of years, of a lot of land in the city of New-York, to secure the payment to Berry, the intestate. The mortgagee died prior to the 8th of November, 1813, the principal of the *bond, and considerable interest thereon, remaining unpaid; and the plaintiffs were appointed his administrators. The mortgage was not registered until the 12th of March, 1814.

[ * 615 ] THE plaintiffs, who were the children of Brandt Schuyler Lupton, deceased, and the grandchildren of William Lupton, deceased, and legatees under the will of the said William Lupton, filed their bill against the defendant W. Lupton, as executor, and against the other defendants, who are children, and immediate representatives of Lancaster and Elizabeth Lupton, deceased, two of the children of the testator, and devisees under the same will.

<p>Equity will not interpose to amend a written instrument, (as a policy of insurance,) without the clearest and most satisfactory proof of the mistake, and of the real agreement between the parties, especially where the mistake is denied in the answer.</p>