Volume 2 — New Jersey Equity Reports

The bill was filed by the children and next of kin of Abraham P. Van Riper, for the recovery of their distributive share of his estate.

This bill, which was for an injunction, was fifed on the 26th •of August, 1837, and contained the usual prayer for a subpoena. A subpoena had been issued, returnable to the term of October, 1837, and returned by the sheriff of Essex, that the defendants could not be found in his county to be served with process, with the usual affidavit of non-residence. At the same term an order of publication was made.

Thts cuso came before the court upon an appeal from the decree of the orphan’s court of the county of Somerset.

<p>The facts of the case fully appear in the opinion of the chancellor.</p>

<p>The allegations of an answer not responsive to the' charges in the complain* ant’s bill, must be sustained by proof. The answer can bs of no avail without it.</p> <p>Where the bill alleges the existence of a partnership, and piays an account of the- partnership transactions; an allegation in the answer, that by an agreement between the partners, on the dissolution of the partnership, the complainant was to pay all the debts of the firm, is new and independent matter, not responsive to the charges in the bill.</p> <p>The circumstances, that the complainant, on the dissolution of the firm, con» tinued the business on his own account; that'he sold out the stock on hand at the dissolution, in the course of this business; that the complainant, after the dissolution-, said that the store belonged to him; and that, from the manner of the sale of the stock on hand, it was manifest he never could account; are not sufficient to establish the agreement, or to sustain the allegation of the answer.</p> <p>The allegation, that one partner agreed to pay all the debts of the firm, should be clearly established.</p>

<p>The bill is filed for the foreclosure of a mortgage made by Thomas Aulen, one of the defendants, to Andrew Howell in his life-time, and for the sale of the mortgaged premises. The answer admits the bond and mortgage, but insists that they are usurious and void. The facts relied upon as proving the usury, sufficiently appear in the opinion of the chancellor.</p>

<p>This cause came before tb-J chancellor for final hearing, upon the bill, answer, replication) and proofs. Jesse H. Bowen alone answered. The charges of the bill, the nature of the defence, and the .evidence relied' upon by the respective parties, so far as are necessary to a clear understanding of the case, appear in the opinion of the chancellor.</p>

<p>This court, if a proper case be disclosed, will interfere by injunction to prevent the obstruction of ancient lights.</p> <p>Chancery will interfere by injunction to prevent or remove a private nuisance, whore the nuisance has been erected to t.he prejudice or annoyance of a right which the other party had long previously enjoyed,</p> <p>tt must bo a strong and mischievous case, of pressing necessity, or the right must have been previously established at law, to entitle the party to call to Ms aid the jurisdiction of this court.</p> <p>Where ancient lights have existed for upwards of twenty years, undisturbed, the owner of an adjoining lot has no right to obstruct them; and parlicu. larly so, if the adjoining lot was owned by the person who built the house containing' the ancient lights, at the time of building, and was subsequently sold by him.</p> <p>Whether this court will interfere by injunction to prevent the nuisance, or leave the parly to establish his right at law, must depend on the particular circumstances of each ease.</p>

The original bill in this cause, filed on the 17th day of October, 1835, charges, that the complainant is the widow of Luther Goble, and the daughter of Caleb Halsted, deceased.

<p>The appeal given to the-prerogative court by the twenty-seventh section of the act, entitled, “An' act to ascertain the power aad authority of the ordinary and his surrogates, to regulate the jurisdiction of the prerogative court, and to establish an orphan’s court in the several counties of this state,” passed June 13th, 1820, (Rev. Laws, 784,) authorizes the ordinary to look into the merits of the decision made by the orphan’s court in granting letters of guardianship, and to affirm or set aside and change the appointment made by the orphan’s court, as the ordinary shall think the legal and just rights of the parties require.</p> <p>In cases of disputed claims to the right of guardianship, the depositions taken at the hearing should be reduced' to writing by the surrogate, and be sent up with the papers bn the appeal.</p> <p>Whether depositions are taken and sent up or not, the ordinary may, in his discretion, allow further depositions to be taken on notice, before the surrogate, to be used on the hearing of the appeal.</p> <p>By the twenty-eighth section of the act of the 13th ■ of June, 1820, (Rev. Laws, 784,) the mother or next of kin are given a clear preference, and are entitled, if they desire it, to the appointment of guardian for minors under fourteen years of age, and cannot be passed by except upon some satisfactory objection made and sustained before the court.</p>

<p>What constitutes testamentary capacity, or the “ sound and- disposing mind and memory” essential in a testator.</p> <p>The mere opinions of witnesses, (other than the testamentary,) unsupported by facts, are entitled to no weight.</p> <p>The influence acquired- over a testator by kind offices, unconnected with any fraud- or contrivance, can never, alone, be a good' ground of setting aside a will: such influence is lawful and proper.</p> <p>The influence thus acquired, though exerted over a testator above eighty years of age, whose bodily faculties are impaired, and who, without good reason,, entertains feelings of hostility to his family, cannot invalidate the will.</p>

This bill was for a divorce, upon the grounds of extreme cruelty and adultery. It prayed a decree for a divorce from the bond of matrimony: that the complainant might have the care, custody and charge of the persons of her children, and the superintendence of their education; and that the defendant should pay to tire complainant a reasonable allowance for her support and alimony, and for the support, education, clothing and maintenance of her children.

<p>Where a lost mortgage has been established, by a decree of the court, as a valid and subsisting incumbrance, the subsequent finding of the mortgage in the hands of a third person, cancelled, without further evidence, will not vary tho case, nor induce the court to alter the decree.</p> <p>Tearing olí’ the seals of a mortgage, or even its entire destruction, by an unauthorized person, will not cancel it. It. must be cancelled by consent of the owner.</p>

<p>The bill in this- cause was filed for foreclosure of the equity of redemption, and, sale of the mortgaged premises. The defendants were the purchasers of the equity of redemption,- the mortgagor having disposed of his interest in the premises to them.The mortgagor was not a party. The dejfendants demurred for want of parties. The cause came on for hearing upon the demurrer.</p>

This was a bill for foreclosure. Part of the defendants were infants. One of the other defendants had answered, and a decree, pro confesso, was made against the others at the last term. At the same term, the clerk of the court was appointed guardian ad litem for the infant defendants. An appearance for the infants had been entered by the guardian, and a rule of course' entered in the clerk’s book to lefer the cause to a master.

This cause was set down for final hearing upon a master’s report. The report was filed June 9th,, 1838. Exceptions to the report were filed on Monday, June 18th, nine days after filing the report. On the same day, notice of final hearing was left at- the dwelling-house of the solicitor of the defendants, during his absence at Washington. The notice was dated on Sunday, though served on Monday.

Bill filed January 15th, 1835. It states, that Hendrick Schenck, being seized in fee simple and possessed of certain real and persona] estate, situate in the township of Lawrence, in the county of Hunterdon, by his will, bearing date on the 13th of June. 1810, among other things, gave, devised and bequeathed as follows: — “ Item — I give and bequeath to my wife the use of all my lands and tenements, during her natural life, she making no waste or destruction thereon; hut if…

<p>On the 24th of September, 1832, the complainants filed a bill for foreclosure, against Thomas L. Woodruff and Ann his wife, George Woodruff and Zachariah Rossell, trustees of the said Ann Woodruff. The bill states, that on the second day of March, 1821, Thomas L. Woodruff and Ann his wife, to secure the payment of a bond bearing date the same day, given by Thomas L. Woodruff to Zachariah Rossell, for one thousand seven hundred dollars, payable on the 2d of March, 1822, with interest, executed to Rossell a mortgage upon the undivided half-part of a house and lot on the north side of Second-street, in the city of Trenton, which said mortgage was duly acknowledged and recorded, in the clerk’s office of the county of Hunterdon, on the day of its execution; and on the 28th of January, 1832, was assigned by said Rossell to the complainants. That, the said Thomas L. Woodruff and Ann his wife,. “ in order to secure the payment of all and every promissory note then drawn or thereafter to be drawn by the said Thomas L. Woodruff, and endorsed by Elias D. Woodruff, and discounted at any bank in the state of New-Jersey,” executed to the said Elias D. Woodruff, a mortgage upon the same premises, bearing date on the 17th of October, 1823, which was duly acknowledged, and on the 28th day of the same month of October was recorded in the clerk’s office of the county of Hunterdon. That the said Thomas L. Wood-ruff afterwards drew two promissory notes, amounting to five thousand four hundred dollars, which were endorsed by the said Elias D. Woodruff, and discounted by the complainants, for the use of the drawer, the proceeds of which were received by him. That on the 10th of October, 1834., Elias ]). Woodruff died; and that on the 25th of August, 1827, the last mentioned bond and mortgage were assigned, by one of his executors, to the complainants. That on the 1st of September, 1829, the said George Woodruff obtained a judgment in the supreme court, of New-Jersey, against Thomas L. Woodruff, for five thousand nine hundred dollars, and costs: and that on the'18th of May, 1832, Zachariah Rossell, trustee of Ann E. Woodruff, also obtained a judgment against Thomas L. Woodruff, for fourteen thousand three hundred and thirty-seven dollars and twenty-one cents, and costs; both of which judgments are liens upon the mortgaged premises. The bill sets forth no other incumbrances; it alleges that the said bond and notes remain unsatisfied, and prays a decree in the usual form.</p> <p>The answer of Ann- E. Woodruff, and Zachariah Rossell, her trustee, filed on the 9th of March, 1833, admits the material-allegations contained in the bill, and by way of defence, states, that Ann E. Woodruff was the only child of [srael Carle, who being seized and possessed of a large real and personal estate, by his last will and testament, bearing date on the 19th day of April, 1822, among other things, gave and devised all his real estate to the said Ann E. Woodruff during her life, "and after her decease, he gave all. his real estate in the township of Trenton to to her two sons, Israel C. Woodruff and Aaron D. Woodruff, .in severalty,, in fee simple;' and in the-event of the death of either of his said, grandsons,', he gave his share to the said Ann E. Woodruff, .in fee. He,also devised and bequeathed all the residue of his estate, real and personal, to the said Ann E. Wood-ruff, her heirs and assign's, “ but neither that nor any other part of his estate, to be subject to the debts or failure of her then or any-future husband and of his said will the testator appointed his wife, Lydia Carle, and his- son-in-law, Thomas L. Wood-ruff, executors ; who duly proved the same, and took upon themselves the execution thereof.</p> <p>The answer further states, that the said Thomas L. Wood-ruff, in. order to enable him to pay for the mortgaged premises in the complainant’s- bill mentioned, borrowed of the said Israel Carle,, in his life-time, three thousand dollars, and to secure the payment thereof, executed to the said Israel Carle his bond, bearing date on the 2d day of March, 1821, in the penal sum of, six thousand dollars, conditioned for the payment of the,sum of three thousand dollars, in one year, with interest; and that, as a further security for the payment of the said debt, the said Thomas L. Woodruff, and Ann his-wife, executed to the said Israel Carle a mortgage upon the premises described in- the bill of complaint, bearing even date with the said bond. That the said mortgage was duly acknowledged, on the same day, before Elias D. Woodruff, one of the masters-of the court of chancery, which said Elias D.. Woodruff is the mortgagee in the second mortgage in the complainants’ bill set forth, and was also a subscribing witness to the bond and mortgage given to Israel Carle; and that the said, mortgage, on the 15th day of May, 1821, was duly recorded in the clerk’s office of the county of Hunterdon. That after the death of the said Israel Carle, his executors caused an inventory and appraisement of his estate to be made, amounting to fifteen thousand two hundred and eleven dollars and ninety-six cents, in which was included the said bond and mortgage given by Woodruff and wife to Israel Carle- — the whole principal and interest of which then remained due and unpaid.</p> <p>The answer further states, that the second mortgage set forth in the complainants’ bill, was in íeality given to secure the complainants against any loss, or liability to loss, by reason of discounting the several notes therein mentioned, and was delivered by Elias' D. Woodruff, the mortgagee, to the complainants, or their lawful officer, on the 6th of November, 1823; and that at the same time, Pearson Hunt, esquire, the complainants’ cashier, gave a receipt signed by himself, in the following words, to wit: — “Trenton, Nov. 5th, 1823. Received of Elias D. Wood-ruff, a mortgage executed by Thomas L. Woodruff and wife to Elias D. Woodruff, bearing date October 17th, 1823, and recorded 28th day of October, 1823, in vol. 10 of mortgages, pages 123 and 4, clerk’s office of the county of Hunterdon. I also admit notice from Elias D. Woodruff of prior incumbrances to Z. Rossell and 1. Carle.” The answer then charges, that at the time of the execution of the second mortgage mentioned in the complainants’ bill, given by Thomas L. Woodruff and Ann his wife to the said Elias D. Woodruff) and at the time that the said mortgage was delivered by Elias D. Woodruff to the complainants, the said E. P. Woodruff and the complainants well knew, and each of them had lawful notice, that the prior mortgage given by Thomas L. Woodruff and Ann his wife to the said Israel Carle, was due and unpaid, and in full force; and that as well because of its being first executed and recorded, as because the said Elias P. Woodruff and the complainants had due and lawful notice thereof, tire said mortgage became and was entitled to priority over the second mortgage mentioned in the complainants’ bill. That the whole amount of principal and interest of the said bond of three thousand dollars, was still due and owing to the estate of the said Israel Carle, and in equity belongs to the said Ann E.'Woodruff) free from the debts or failure of her husband. That the said mortgage is entitled to priority over the second mortgage mentioned in the complainants’ bill; and that, if the same has been cancelled or discharged, it has been done without payment or satisfaction, and unlawfully and inequitably, and that the said cancellation is inoperative and void.</p> <p>The answer further states, that the said Thomas L. Woodruff was the president of the Trenton Banking Company, and being such president, without receiving any payment or satisfaction of the said bond and mortgage, so as aforesaid given by him to the said Israel Carle, and being the acting executor of the said Israel Carle, and a debtor to the estate, and while the said bond and mortgage were due and subsisting, without the knowledge or approbation of the said Ann E. Woodruff, endorsed a receipt upon the said mortgage, acknowledging the payment of the money due thereon, and cancelled the same; which cancellation was fraudulent as regards the rights of the said Ann E. Wood-ruff.</p> <p>That the said Thomas L. Woodruff got into his possession all the assets belonging to the estate of the said Israel Carle, deceased, so as aforesaid bequeathed to the said Ann E. Woodruff free from his debts and liabilities, amounting, on the 1st of September, 1827, after the payment of all debts and funeral and testamentary expenses, to fifteen thousand four hundred and seventy-four dollars and twenty-five cents; and being otherwise unable to secure the same to the said Ann E. Woodruff, did, together with his wife, (the said Ann E. Woodruff,) by deed dated the first day of February, 1832, convey unto the said Zachariah Rossell, whatever was given, devised or bequeathed to the said Aim E. Woodruff, by the will of her father, the said Israel Carle, deceased, whether in possession, remainder or expectancy; in .trust, nevertheless, for the sole and proper use and benefit of the said Ann E. Woodruff, during her natural life, so that the same should not be in any wise subject to, or liable for, the debts, failures, contracts or liabilities of her present or any future husband, and upon divers other trusts in the said deed contained; which said deed was duly acknowledged, and on the 14th day of February, J832, was recorded in the clerk’s office of the county of Hunterdon.</p> <p>The answer further insists upon the priority of the mortgage given by Thomas L. Woodruff to Israel Carle, over the second mortgage mentioned in the -complainants’ bill, and assents to a sale of the mortgaged premises for the purpose of paying the incumbrances in the order specified.</p> <p>The complainants filed their replication, putting the cause at issue; and the cause came on for hearing at July term, 1838, upon the bill, answer, replication and proofs.</p> <p>Ann E. Woodruff, and Zachariah Rossell, her trustee and next friend, on the 21st of April, 1834, filed a cross-bill against the complainants in the original cause, praying, among other things, an injunction to restrain them from proceeding at law to recover possession of the mortgaged premises. Under this cross-bill an injunction was issued, and various proceedings had, not material to the points involved in the opinion of the chancellor.</p>

<p>The condition of an administration bond, under the statute of Now.Jersey, is not restricted merely to the rendering of an account, but is designed to secure a faithful administration of the estate.</p> <p>It is a part of the condition of such a bond, that the administrator shall faithfully apply the assets to the payment of the debts ; and the non-payment of a judgment obtained against the administrators may be assigned as a breach of the condition.</p> <p>After the return of nulla bona upon an execution against the administrators, the administration bond is forfeited, and the surety has a right to satisfy the execution with or without suit upon the bond.</p> <p>Such payment is not voluntary, and the party making it may recover it back from the party for whose benefit it was made.</p> <p>A surety in an administration bond, having satisfied an execution against the estate of the intestate, becomes a creditor of the administrators in their own right, having paid money for their joint account. Ilis remedies against them should be exhausted, before this court can interfere in his behalf to reach the assets of the intestate.</p> <p>Can relief be had in this court against the representatives of one of two joint debtors, without making the other joint debtor a party, and showing by a return of nulla bona that the money could not be recovered against her at law ? — Qu.</p> <p>It seems, that where the bill charges that one of two joint debtors is insolvent) the court, especially in favor of a surety, will sustain the bill against the representatives of the other.</p> <p>Upon a decree for an account, upon a bill filed by a creditor against an administrator, the account cannot be taken for the benefit of the complainant alone, but must be for the benefit of all such creditors as choose to come in before the master.</p> <p>A decree of this court is a judgment from its date in favor of all the creditors, and they are entitled to be paid rateably unless they have some legal pri. ority.</p>

Jonathan W. Miller, on the first day of April, A. D. 1834, fded a petition, under the act of 13th December, 1824, for a divorce from his wife, Martha Miller, charging her with adultery. The cause was heard upon the petition, answer, and proofs. The facts and circumstances relied on, sufficiently appear in the opinion of the chancellor.

The bill in this cause, was originally filed by Samuel Gar-wood, against William Eldridge in his life-time. Eldridge hav.ing died intestate during the progress of the cause, the suit was revived against his administrators and heirs at law.

<p>The bill in this cause was filed ou the 17th of July, 1835, for an injunction to restrain the; defendants from “ obstructing Salem creek, or erecting a dam or stopping therein, and from impeding the flow or fall of the tides in said creek, and from altering the same in any manner whatever.” The bill charged, that the defendants wore engaged in erecting a dam in Salem creek; that the dam prevented the draining of the meadows of the complainants lying above it, and rendered them useless, causing them to be overflowed, &c.</p> <p>Before granting the injunction, the chancellor directed a copy of the bill to be served on the defendants, and notice of the application to be given. The motion for the injunction was argued on the 23d of July, 1835, both parties using exparte affidavits upon the hearing; and ou the 8th of August, 1835, the injunction was allowed.</p> <p>The defendants having answered, moved to dissolve the injunction, hut the motion was disallowed. At January term, 1836, the testimony having been closed, the cause was heard before chancellor Vroom, upon the bill, answer, replication and proofs ; and on the 8th of April, 1836, the chancellor denied the motion to dissolve the injunction, and directed an issue, as follows : “ It is ordered, adjudged and decreed, and the chancellor by virtue of the power and authority of this court doth order, adjudge and decree, at the instance and upon the motion of the complainants by their said counsel, that a feigned issue be formed in the supreme court of judicature of New-Jcrsey, and tried in the ordinary manner, between the said Joseph Bassett, Thomas Sinnickson and John Sinnickson as plaintiffs, and Isaac Johnson and William Johnson as defendants, by a jury of the county of Salem, at the next circuit court to be holden in said counl y, to inquire, ascertain and determine, by the verdict of said jury, whether the erection of the dam by the defendants, mentioned in the pleadings of this cause, has seriously aud permanently affected and injured the meadows of the complainants lying above it; and that either party may notice the cause for trial; .and the defendants in the issue may carry down the record by proviso, in order that the trial may be had at the ensuing circuit; and .that a special jury will be ordered by this court on the application of either party, subject to the preference given to the plaintiffs by the rules of the supreme court; and that copies of the depositions, certified by the clerk of this court, be read and received in evidence oh said trial, as rebutting evidence or as original evidence, in case the, witnesses who testified to the same be dead, or from sickness or other sufficient cause be unable to attend said trial; and that no new witnesses shall be produced at said trial, without giving ten days’ notice of the intention, with the name, addition and place of abode of such witnesses; and that all further directions be reserved until the said issue shall be fried, and the postea returned to this court,”</p> <p>The issue was tried in the Salem circuit at June term, 1838, before the honorable John Moore White, one of the justices of the supreme court, by a struck jury, who found the issue affirmatively, in favor of the complainants. Upon the coming in of the postea, with the judge’s certificate, &c. at July term, 1838, the defendants obtained a rule jto show capse why the verdict should not be set aside and a new trial granted. The cause was argued at January term, 1839. The reasons relied upon by the defendants, for granting a new trial, sufficiently appear in the opinion of the chancellor.</p>

<p>3n equity the creditors of a partnership have a right to be 'first paid out of the partnership property, in preference to the creditors of the individual partners.</p> <p>After the debts of a firm are satisfied, the residue of .the property belongs to the individual partners, and can then, and then only, be applied to the payment of their individual creditors.</p> <p>Whether an injunction ought to issue upon a bill for an account of tlje partnership, to restrain the sheriff, upon an execution at law against one of the partners, from selling the partnership properly ? — Qu.</p> <p>As respects third persons, a different rule prevails in regard to silent partnerships from that which obtains in the case of open partnerships.</p> <p>At law, the visible partner, if sued alone, cannot plead in abatement, that he has a dormant partner; and a creditor may al his election sue either the visiHe partner alone, or join any latent partner he may discover.</p> <p>Those funds shall be liable (to the claim of a creditor) on which the credit is given. In an open partnership, the credit is given to the firm, and to the goods they are possessed of, and a partnership creditor shall bo first paid out of them; but if the partner be unknown, the credit is given to the visible partner only, and the goods in his possession are supposed to be his own; and in such case, the discovery of the latent partner cannot give any preference to a partnership creditor.</p> <p>As between the partners themselves, there seems to be no reason to make any distinction in their rights, whether any are dormant or not; but as to the public, it is necessary to prevent injustice towards creditors that this difference should be observed.</p> <p>The execution creditor (in the case of a silent partnership) has his remedy complete against all the effects of the visible partner, and against all the effects which belong to hjm and his dormant partner, as partners, and it makes no difference whether the debt \yas contracted by the debtor on the partnership account or on his individual account.</p> <p>If the bill of complaint charges the existence .of a partnership, without stating its character, an answer by the defendants that the partnership is dormant and unknown to them, is responsive to the bill, and need not be sustained by proof.</p> <p>The power of dissolving injunctions, as well as of granting them, must ne. cessarily rest much in the discretion of the court, and should he exercised in such way as to prevent the restraints by injunction from working unnecessary delay and injustice to parties.</p> <p>This court will not sustain an exception to a judgment at law on the ground of irregularity.</p> <p>Receivers, being officers of the court, are at all times entitled to, and must receive, its advice and protection.</p>

<p>On the 18th of February, 1839, Charles Oakley filed his bill of complaint against the President, Directors and Company of the Paterson Bank, for'an injunction and the appointment of receivers, under the act, entitled, “An act to prevent frauds by incorporated companies,” passed February 16th, 1829. The bill, after referring to the act of incorporation, and the several other acts relating to the bank, and stating generally the time and mode of its going into operation and transacting its business, charges that the principal part of the capital of the bank had been lost by enormous loans to Benjamin Rathbun, of Buffalo: that about twenty-seven thousand dollars had been loaned by L. S. R., the late cashier, without the knowledge of the board, to an agent of Rathbun, which was to have been secured by an assignment from Rathbun to certain of his creditors; but that the claim of the bank for that sum was contested, on the ground that the late cashier had taken usurious interest. That L. S. R., the late cashier, had given bond as cashier in five thousand dollars, with A. R., his father, as security; which bond was in the hands of D. K. A., one of the directors of said bank. That the circulation of the bank had been reduced to two thousand five hundred dollars. That the bank claims a large amount against said A. R., who is one of the directors; and that said A. R. is endeavoring to obtain from the board of directors an order for the sale of all the claims of the bank against Rathbun, amounting to ninety-eight thousand dollars, for the inadequate sum of two thousand dollars, in order that the said A. R. may be relieved from his liability as security on said bond of L. S. R., the late cashier. That there are no funds in the bank to meet the bills of the bank. That on the 18th or 19th of February, 1839, bills of said bank were presented at the counter of the bank, to the president, who was acting as clerk, in the presence of the cashier, and payment thereof demanded, within the usual and proper-hours of business 5 and that payment thereof was then and there refused, the president answering that they had no funds. That the bank then stopped payment, and have not since that time paid any of their bills, although they have been frequently presented for payment. That the bank has refused to redeem the same in any way ; and that there are no assets of the bank from which money to any amount can be realized, except from the said claims against Rathbun and A. R.; and that complainant is a large stockholder. The bill prays an injunction, and the appointment of receivers for the purposes specified in the act.</p> <p>All the material charges of the bill, excepting that the bank had refused to redeem its bills and had stopped payment, and that complainant is a stockholder, are made upon the information and belief of the complainant. The bill is accompanied by an affidavit of the complainant in the usual form, and also by an affidavit of the cashier of the bank, stating that the bank had refused to redeem its bills when presented at the counter and payment demanded during the usual hours of business, the president saying they had no funds, and that the funds of the bank are exhausted.</p> <p>Upon filing the bill, an injunction was issued, as prayed for. The cause came on for hearing on the 14th of March, on the application for the appointment of receivers, and also upon a motion, on. the part of the defendants, to dissolve the injunction. It appears that affidavits were taken and used on the argument, but the affidavits are not on file, nor does it appear whether they were taken exparte or upon notice, or in pursuance of an order of the chancellor. The opinion was delivered on the 18th of March, 1889.</p>

<p>The general rule is, that when an injunction has been obtained upon the complainant’s affidavit alone, and a motion is made by the defendant, upon filing his answer, to dissolve the injunction, affidavits cannot be read upon the argument of the-motion either in support of the bill or answer.</p> <p>The rule admits of exceptions. In cases of waste, affidavits are admissible in support of the bill, to prove acts of waste.</p> <p>But affidavits will not be admitted in support of allegations contained in the bill, and not expressly denied by the answer. The practice of this court is in conformity-with the rule adopted by the supreme court of the United States, viz: that the allegations of the bill will be taken as true when they are not met and denied by the answer; and if the answer does not fully meet the case disclosed- by the bill, the injunction will be sustained.</p> <p>Where new matter is contained in the answer, not responsive to the bill, which is relied upon as a ground for setting aside the injunction, the complainant may read affidavits in contradiction of such new matter.</p> <p>On the hearing'of a motion to dissolve an injunction, upon the defendant’s answer to the bill, the charges in the bill, unless met by the answer, are to , be taken as true, and the allegations in the answer are entitled to the same credit.</p> <p>A technical denial of the complainant’s bill Will not in all eases dissolve the injunction : that must rest in the sound discretion of the court, and depend on the peculiar character and circumstances of each case.</p> <p>Judgment and execution creditors of a defendant in execution, whose pro. perty has been sold by the sheriff, stand in a position which fully entitles them to he hoard upon an application for relief against the sheriff’s sale ; and if the sale is in any respect illegal, it may bo set aside at their instance.</p> <p>Where the sheriff’s advertisement, after specifying sundry parcels of land to bo sold by the sheriff, adds, “ together with all his (the defendant’s) other real estate in the county of Atlantic, of which a more particular description will ho given on the day of sale,” it seems that the advertisement is defective, and insufficient to authorize the sale of any lands except those specified in the advertisement.</p> <p>Some description, by which the property may be known, though imperfect in itself, is necessary.</p> <p>The discretion confided to the sheriff as a public officer, in selling property, must not be unnecessarily or hastily interfered with, nor without the charges (against his conduct) being sustained by indisputable evidence. A sale by a sheriff) upon execution, in one parcel, of a large quantity of the defendant’s property, which is readily susceptible of division, can never be justified upon any other ground tha.n as being the best mode for making it bring the most money.</p> <p>A properly may be so circumstanced — one part so dependent on the other — as to require a sale in large parcels; but the general rule is, that it must be sold in different parcels if plainly divisible.</p> <p>A sheriff cannot require security of a duly authorized agent of the plaintiff in execution, for the performance of his contract, nor can he refuse the bid of such agent for want of the required security.</p> <p>The exercise of the sheriff’s discretion must he a legal one, and so controlled as to work no injustice or oppression.</p> <p>A sheriff may refuse to take the bid of an irresponsible man, or of any one when ho is well satisfied that the sale could only be embarrassed- by accepting it.</p>

<p>Bill filed October llth, 1836, for a specific performance of the following agreement:—</p> <p>“Article of agreement made and entered into this seventh day of August, in the year of our Lord one thousand eight hundred' and thirty-five, between John Miller, of Elizabeth-Towu, in the county of Essex, and state of Nevv-Jersey, of the first part, and doctor George R. Chetwood, of the same town, county and state, of the second part. This witnesseth, that the said George R. Chetwood hath bought of the said John Miller, for the sum of five thousand dollars, good and lawful money of the United States of America, all that tract and parcel of land lying arid-being in Elizabeth-Town, in the county of Essex, and state of New-Jersey; bounded west and north by land of Isaac Jaques, east by land of the late Thomas Price, deceased, and south by the road leading to Elizabeth-Town Point.- The condition of this agreement is, that the above named George R. Chetwood shall pay to the said Miller one thousand dollars on the first day of September next, when the said Miller will give a good deed of said land; the remaining four thousand dollars to remain on bond and mortgage, with interest from date; that is, two thousand dollars on the first day of April next, and two thousand dollars on the first day of April, one thousand eight hundred and thirty-seven. The said Miller has reserved to himself all wood, crops arid moveables, and has to the' first day of May next to take off said wood, when the possession will be given to the said doctor Chetwood.”</p> <p>The cause was brought to a hearing on the pleadings and proofs, on the 29th of April, 1839.-</p>

Bill for an account filed 9th of March, 1836. It states, that on the 14th of April, 1807, Bathsheba Allen, the complainant’s intestate, by writing under her hand and seal of that date, appointed Jacob Woolley, the defendants’ testator, her attorney, for her and in her name and for her use, to ask for, demand and receive, of and from all persons whatsoever, all moneys then due and to grow due in any way whatever, and if necessary to prosecute for the same, and to put the same…

<p>This case came before the court upon the petition of John Moir, one of the defendants, to avoid a sale made by the sheriff of Middlesex, by virtue of the execution issued in the cause, for the sale of mortgaged premises. The petition was filed on the 20th of March, 1839. Before the filing of the petition, on the 19th of February, 1839, upon filing an affidavit of the agent of the petitioner, an order was made by the chancellor, whereby it was ordered, that the sheriff of the county of Middlesex should desist and refrain from executing or delivering any deed for the mortgaged premises, under or by virtue of the sale made by him, until the further order of the.court respecting the same. The material facts contained in the petition are fully stated in the opinion of the chancellor. The cause came on for hearing upon the petition and- affidavits.</p>

<p>In a case of spoliation of a will, equity has jurisdiction, and the will may be established in this court.</p> <p>In order to establish a will in the court of chancery, all the witnesses to the will, if within the power of the court, must be examined. But if either of the witnesses be dead, or insane, .or without the jurisdiction of the court, the will may be established without the evidence of such witnesses.</p> <p>Under the statute of New-Jersey, it is requisite, to the due execution of a will to pass real estate, that the testator sign his name in the presence of the witnesses.</p> <p>On a bill filed t.o establish a will, under a charge of spoliation, it is not necessary to prove that the spoliation was committed by the individual charged in the bill, or by whom it was committed. It is enough if the fact of the spoliation be established.</p> <p>On a bill filed to establish a will devising real estate, the .court may grant relief either by making an injunction perpetual, restraining the defendants from prosecuting any suit to disturb the complainants in the possession of their respective tracts, or by directing a release on the part of the defendants of all their right in said lands to be made to the complainants, or by a decree establishing the will in all its parts. The last course should be adopted wherever the contents of the will can be ascertained.</p>

Bill for the foreclosure of a mortgage given by Inslee and wife to the complainant. The bill states that the mortgage bears date on the 8th of September, 1836, and that Inslee and wife afterwards, by deed, conveyed the mortgaged premises to Campbell, the other defendant. The bill is silent as to the fact of the acknowledgment or recording of either instrument.

Bill for an account and for relief, filed the 4th of February, 1837. It states, that Nathaniel Mitchell, of Elizabeth-Town, died about the first of June, 1828, leaving Albert R. Mitchell and Caroline ,M. Mitchell, his children, and Mary R. Mitchell, his widow, surviving.

<p>The bill states, that on or about the 29th of September, 1836, the defendant, being seized iti fee of a lot of land in Elizabeth-Town, agreed to sell the same to the complainant for four hundred dollars. That the lot was conveyed by Elihu J. Crane and wife to the defendant, by deed dated on or about the 16th of May, 1836. That the defendant, through his agent, Sylvauus Hoyt, proposed to the complainant, that the deed from Crane and wife to the defendant, not having been recorded, should be delivered up to the complainant, and that a deed should be executed from Crane to the complainant; to which arrangement the' complaiuant assented. This agreement having been made known- by the defendant, or his agent Sylvanus Hoyt, to Crane, the said Crane and wifer by deed dated the 29th of September, 1836, conveyed the said lot in fee to the complainant. That the last mentioned’ deed was duly executed and' acknowledged’ by Crane and wife; and by them delivered to the complainant, and at the same time the defendant, through his agent Hoyt, delivered to complainant the deed from Crane and wife to the complainant; and upon the delivery of said deeds the complainant paid the purchase money, (which was a full consideration for the premises,) and entered into possession,- and still remains in the actual possession of the said premises, and has erected improvements thereon to the value of five hundred dollars. The bill further states, that the defendant has commenced an action of ejectment against the complainant-in the supreme court, for the recovery of the premises; and prays an injunction to restrain-the defendant from proceeding at law to recover the premises,- and also that the defendant may be- decreed to execute to the complainant such conveyance as may be requisite to perfect his-title to the premises.</p> <p>The defendant, by his answer, admits that he became seized of the premises in question as stated in the complainant’s bill, and that his deed had not been recorded. That Hoyt called on him, urged him to sell, and stated that he could procure a purchaser for the premises at four hundred and twenty-five dollars; and that the defendant agreed that if Hoyt would obtain a purchaser at that price, he, the defendant, would execute a deed for the premises. That the deed from Crane to the defendant for the premises, was placed in Hoyt’s hands, as evidence to peisons wishing to purchase, of the defendant’s title, and for no other purpose. The answer expressly denies that Hoyt was the agent of the defendant, that, he was ever authorized to deliver a deed for the premises or to receive the purchase money, or that he had any authority from him except to find a purchaser for the promises at four hundred and twenty-five dollars. It also denies that the defendant ever informed Elihu J. Crane, either personally or by agent, of any such agreement as is alleged in the complainant’s bill, or that be ever requested Crane to execute a deed to the complainant; that he ever received the purchase money for the premises, or consented that the complainant should take possession thereof or make improvements thereon. The answer states that the deed from Crane to the defendant was cancelled without his authority, knowledge or consent, insists that his title cannot thereby be divested, and admits that an ejectment has been commenced for the recovery of the premises.</p> <p>The cause was heard upon the bill, answer, replication and proofs,</p>

<p>The vendor of an estate, ftom the time of his contract, is a trustee for the purchaser; and the vendee, as to the money, is a trustee for the vendor.</p> <p>If a person who has contracted to sell land, sells it to a third person, the second purchaser, if he have notice at the time of his purchase of the previous contract, will bo compelled to convey the property to the first purchaser.</p> <p>Being a purchaser with- notice of the equitable title of the vendee under the contract, he stands in the place .of the vendor, and is liable to the same equity.</p> <p>A judgment creditor, with notice, can stand in no better situation than a purchaser.</p> <p>Articles made for a valuable consideration, and the money paid, will in equity bind the estate and prevail against any judgment creditor mesne between the articles and the conveyance ; but the consideration paid must be somewhat adequate to the thing purchased.</p> <p>If the vendee be a creditor of the vendor, and his design in purchasing be to save his debt, and this be known to the second purchaser, equity will regard the purchase money as paid the moment the contract is complete, and a subsequent judgment will not attach upon the purchase money in the hands of the vendee.</p> <p>A judgment creditor mesne between the articles and the conveyance, will be restrained by perpetual injunction from enforcing his judgment against the estate.</p>

Bill for injunction and relief, filed August 1st, 1834. The-bill states, that Joseph Wilkinson and William Wilkinson, on-the 24th of January, A. D; 1823, executed a mortgage upon certain lands in the township of Woodbridge, to secure the payment of two thousand seven hundred dollars due from them to the complainant upon bond.

<p>The bill in this cause was filed for the redemption of certain premises conveyed by the complainant to the defendant, by deed dated the third day of March, 1835. The deed was absolute upon its face. On the 6th of March, 1835, three days- after the execution of the. deed, the defendant, by a written instrument, leased the premises to the complainant for one year at a stipulated rent, .and agreed to re-convey the same to the complainant provided he should pay to the defendant two thousand seven hundred and twenty-five dollars within two years from that date. The instrument contained a further stipulation, that if the redemption was not made within the time limited for that purpose the privilege should cease. The answer insists that the deed was, as it purports to be, an absolute conveyance in fee, and that the subsequent agreement merely gave to the complainant the right of re-purchasing within the time limited.</p> <p>The cause was heard upon the bill, answer, replication and proofs.</p>

<p>Upon a bill for the specific performance of an agreement contained in a lease, that at the expiration of the term, the improvements made on the demised premises by the lessee, shall remain the property of the lessor on making the lessee a fair compensation for the same; the court will entertain jurisdiction though the bill be purely for compensation and damages, provided a specific performance may be decreed, and the complainant can have ade. quate relief only in equity.</p> <p>The charge for improvements made upon the property by the lessee, under the terms of such an agreement, is in equity a lien on the property.</p> <p>The court will not extend its jurisdiction beyond the claim of the lessee for compensation for valuable and permanent improvements put by him upon the demised premises, and which pass to the lessor at the expiration of his term; and will not suffer a claim for alleged infringements of the rights of the lessee during his term, to be drawn in question.</p>

<p>Bill for relief filed September 23d, 1836. The bill was originally filed in the name of Samuel J. Read, in his life-time, and the suit was continued in the name of his administrators after his death. The bill states, that in the year 1834, all the real estate of Charles Loveland, in the township of Little Eggharbor, in the county of Burlington, containing three hundred acres more or less, was sold by the sheriff of said county, by virtue of an execution issued out of the court of chancery, upon a decree of foreclosure,' and that the complainant, having become the purchaser of the whole of the said real estate at the said sale, a deed therefor was executed to him by the sheriff, and the complainant thereupon entered into possession of the premises. That on the 5th of May, 1835, the complainant offered the said premises for sale at public auction, having first caused a map or draft thereof to be made by a surveyor; and on the day of sale, among other parcels, he offered for sale by the acre a piece of salt-marsh or meadow, as represented upon said map, containing fifteen acres, and caused it to be publicly proclaimed that the said lot, as represented on the map, would be sold for fifteen acres, and whether it contained more or less, the purchaser should pay for ¡that quantity. That the lot so exposed to sale was cried off to Charles Cramer, .one of the defendants, at the rate of twenty dollars and five cents per acre, amounting in the whole to the ■sum of three hundred dollars and seventy-five cents; who ¡thereupon, ,in compliance with the «conditions of sale, by a memorandum endorsed on the.condidons, acknowledged himself to be .the purchaser at the price aforesaid. That the complainant .and his wife .made and executed a deed for the said fifteen acres, as described .upon the said map, and had it ready for delivery .on the fourth Tuesday of May, 1835, when by the conditions of sale the deed was to be delivered; on which day the said 'Charles Cramer, accompanied by his father, Isaac Cramer, called to receive the deed. On reading over the description to Charles Oramer, as contained in the deed and drawn upon the map, he ■suggested a change in the description which would render the boundary more satisfactory, and avoid controversy with the adjoining proprietors, who were contentious men; whereupon the description was altered to meet the views of the purchaser, and a new deed drawn, executed and delivered. That soon after-wards the complainant was informed that he had been deceived by the purchaser, and that the tract as described in the deed, instead of fifteen acres, contained near fifty. That the complainant thereupon caused the said tract to be surveyed, and ascertained that it contained forty-two acres, being twenty-seven acres more than were intended to be conveyed. That the complainant was unacquainted with the boundaries of the tract purchased, and from the looseness and generality of the description contained in the sheriff’s deed to him, he was unable to ascertain the same; and that the surveyor who run out and mapped the tract preparatory to the sale by complainant, and who lived in the neighborhood, was misinformed as to the extent of the complainant’s title, and did not include in his map a part of the land owned by complainant, and which by the change of description was included in *the deed from the complainant to Charles Cramer. That the deed was executed by the complainant and his wife to Cramer with the intention and expectation of conveying fifteen acres, as described upon the map, whereas, by the false and fraudulent representations of the defendants, it was made to convey forty-two acres; and that all that part of the meadow exceeding fifteen acres, was obtained by fraud and false representations, and without any consideration whatever. That complainant has offered either to- repay the purchase-money and receive a re-conveyance for the premises described in the deed, or to confirm the conveyance, upon the purchaser paying for the excess the price at which he purchased the fifteen acres, both of which offers were declined by the purchaser.</p> <p>The bill prays, that the deed may be rectified according to the true intent and meaning of the parties, or declared inoperative and void as to the excess over fifteen acres as described upon the map; or that the said Charles- Cramer may be decreed either to pay for the excess of twenty-seven acres at the rate of twenty dollars and five cents by the acre, with interest from the date of the purchase, or to re-convey the said excess to the complainant, and to satisfy him for the proceeds thereof converted by the said Charles Cramer to his own use from the.date of the deed; the value to be ascertained by a master of the court.</p> <p>The answer states, that the lot in dispute on the day of sale was offered as “a lot of marsh or meadow land, bounded by Wading river, the thoroughfare, and Isaac Cramer’s line on the marsh, supposed to contain fifteen acres more or less,” and was so bid for and bought by the defendant, Isaac Cramer. That the deed as executed conveys the land included within said boundaries, and no more. That no map whatever of the premises was exhibited-to the defendants, nor did they or either of them see any map upon the day of sale, or hear any description of the premises except as aforesaid. . The answer admits that the alteration in the description of the property contained in the deed, was made at the instance of the defendants, and that the deed after the alteration conveyed more land than was included in the description as originally drawn, but insists that the alteration was made in accordance with the description given on the day of sale, and denies that any fraud was practiced, or false representations made in relation thereto by the defendants.</p> <p>The cause came'on for final hearing at July term, 1839, upon the bill, answer, replication and proofs.</p>

<p>The object of the bill in this cause was to avoid a conveyance as fraudulent; it also piayed an injunction. At January tern), 1839, an order was made upon Daniel O’Neill, an absent defendant, to appear, &c., at April term, also the usual older for publication. Two of the defendants answered the bill. Daniel O’Neill having failed to appear, Mr. A. iS. Pennington, now, upon proof of publication of the rule of January, 1839, moved for a decree pro confesso against him.</p>

Benjamin Allen, the elder, by his will, bequeathed a certain legacy to his daughter, Mary A. Dare, the wife of Samuel Dare. The bill is filed for the recovery of said legacy, by the administrators of Samuel Dare, charging that the legacy had been reduced into possession by the said Samuel Dare in his life-time.

The bill in this case prayed relief against the legal title of William Eldridge, (the defendants’ intestate,) to the premises in question. William Eldridge claimed title under a sheriff’s deed, made by virtue of a judgment and execution in favor of Eldridge, against Josiah Smith.

<p>This was an application by the heirs of John Van Vorst, for an order to receive certain monies deposited in the hands of the clerk of the court, by the New-Jersey railroad and transportation company* The act, entitled, “ an act to incorporate the New-Jersey railroad and transportation company,” {Harr. Com. 379, sec. 6,) after providing a mode in which the compensation and damages which the owners of real estate have sustained by reason of the occupation of the land by the corporation, shall be ascertained in cases of disagreement as to price, enacts as follows: “And in case any owner or owners of such land or real estate so appraised, shall be feme covert, under age, non compos mentis, or out of the state, then, and in such case, the said corporation shall pay the amount which has been awarded as due to the last mentioned owners, respectively, into the court of chancery, to the clerk thereof, subject to the order of said court, for the use of the said owner or owners.” Under this provision the money had been paid into court, the owners being minors.</p>

The bill contained charges ©f adultery and of extreme cruelty against the husband.

Bill filed March 7th, 1839, t,o set aside an award. The bill charges, that Henry P. Schenck, the complainant’s intestate, in the year eighteen hundred and thirty-six, contracted with the defendant, who was a ship-carpenter, to build a vessel for Schenck, to be finished by the first of March, eighteen hundred and thirty-seven.

<p>Under a general, demurrer for want of equity, a demurrer ore te.nus may be modo for want of parties.</p> <p>The general rule, that all persons who have an interest in the decree must bo made parties, 1ms its exceptions, and will be controlled and regulated in the discretion of the court.</p> <p>A mere nominal trustee cannot bring a suit iu his own name, without joining his eestui quo trust with him.</p>

<p>A ivnvr, was filed in this cause for an injunction to restrain the defendant, as sheriff of the county of Atlantic, from selling certain real estate of the defendant under or by virtue of executions at law in the sheriff’s hands. The bill was filed on the 9th day of November, 1839, and an injunction pursuant, to the prayer of the bill allowed and served. At the same time a subpoena was issued, -returnable to January term, 1840, which was never served. Prior to the April term, and before notice was given of the present motion, a new subpoena issued, returnable to April term, 1840, which was returned served.</p>

<p>On an application, by petition, verified by the affidavit of the party, to set aside a sale, the material facts alleged in the petition must bo proven. The affidavit of the party, except as to facts peculiarly within his own knowledge, must be supported by other evidence.</p> <p>It is not necessary that advertisements of the sale of real estate by a sheriff or a master in chancery, should he signed by the officer with his own proper signature. Whether the officer’s name is signed to the advertisement by himself, or printed, or signed by another, is immaterial. In either case it is a virtual signing by the officer.</p> <p>Where a sale by a sheriff or master is adjourned, no publication of the adjournment is necessary.</p> <p>Where a sale is advertised for a specified day between the hours of twelve and jive o'clock in the afternoon, and the property is sold in pursuance of such advertisement, the sele will not be set aside, although there is a propriety and convenience in specifying a particular hour between twelve and five o’clock for the sale,</p> <p>Nor will a sale by an officer be set aside because the terms of sale are unusually strict or severe, if the circumstances of the case call for rigid measures, and no design is manifested to oppress or injure the defendants.</p> <p>Where a tract of land is divided Into distinct parcels, it must be sold in that way.</p>

Bill for foreclosure, filed April 3, 1838, stated, that the defendants, Albert C. Demeritt and wife, on the first day of October, 1836, executed to Horace H. Ladd a bond and mortgage to secure the payment of eight thousand dollars, in one year from the date thereof, with interest. The mortgage was upon a house and lot in the city of Newark, aud was acknowledged on the 28th day of October, 1836.

<p>A former decree pleaded in bar need not appear to liave been between precise. Iy the same parties with the one to which it is pleaded, but it must always appear to have been for the same subject matter.</p> <p>If the defendant has a substantial defence which cannot avail him under his plea, from inaccuracy in pleading, he may claim the full benefit of such defence by his answer.</p>

<p>X'n equity there is no necessity that a partition should be so made as to give each party a share in every part of the property. Each party must have their share in value, whieh is all that is required.</p> <p>To make the value of the several shares equal, one party may be required, under certain circumstances, to pay money on his share to those who receive a share of less value.</p> <p>An equitable partition may be made so as to assign that portion of the land on which the improvements are placed to the person who has made them.</p>

Bile for foreclosure. The bill charges, that one William Green had recovered a judgment in the circuit court of the county of Essex, which remained a lien on the mortgaged premises, and that the said judgment had been assigned to one Daniel Price. The assignee of the judgment was made a party to the suit, but the assignor was not,.

<p>The bill states that the complainant is the widow of Richard S. Hartshorne, late of the township of Freehold, in the county of Monmouth, deceased. That the said Richard S. Hartshorne in his life time, and during the complainant’s coverture, was seized in fee .of divers messuages, lands and tenements, in the said bill of complaint particularly described. That the marriage of the complainant with the said Richard S. Hartshorne was duly solemnized on the 3d of August, 1820, and that they lived together as man and wife until the death of the said Richard, which occurred in the month of October, 1833. That on the 25th of April, 1827, judgment was recovered in the inferior court of common pleas of the county of Monmouth, against the said Richard S. Hartshorne, upon which judgment execution was issued; and that by virtue of the said execution certain real estate of the said Richard was sold, on the 5th of January, 1828, subject to all legal and prior incumbrances, for the sum of two dollars, to William Hartshorne and Esek Hartshorne, two of the children of the said Richard S. Hartshorne. That the said Richard S. Hartshorne, prior to his marriage with the .complainant, and on or about the 3d of June, 1808, executed to one Edmund Williams a mortgage upon the premises sold by virtue of the said execution, to secure the payment of three thousand dollars, which at the time of the said sale had been paid to the said Edmund Williams excepting about eleven hundred dollars, which remained a lien and incumbrance upon said premises; .and that the said mortgage has been assigned by the said Edmund Williams to the said William Hartshorne, one of the purchasers at the sheriff’s sale. That on the 12th of April, 1824, the said Richard S. Hartshorne and his wife, the complainant, executed a mortgage on said premises to Jacob Q,uack•enbush, to secure the payment of two thousand two hundred dollars, which at the time of the said sheriff’s sale was reduced By payments to about one thousand six hundred dollars. That the said last mentioned mortgage has been assigned to one John W. Holmes, and is paid and satisfied excepting about six hundred dollars, which still remains due thereon. The bill further states, that other mortgages upon the said premises were executed by the said Richard S. Hartshorne in his life time, which have been paid and satisfied. That on the 2d of May, 1835, the said Esek Hartshorne and William Hartshorne sold and conveyed a part of the said premises by them purchased at the sheriff’s sale, to Daniel Baker ; and on the 24th of December, 1835, the said Esek Hartshorne sold and conveyed his undivided half part of the residue of said premises to the said William Hartshorne. That from the death of the complainant’s husband she has held and enjoyed the mansion house, and refused to deliver up the possession thereof, and has also refused to release her dower in the said premises, but has requested the same to be set off to her. That no settlement or provision in lieu of dower having been made for the benefit of the complainant upon or before her marriage with the said Richard S. Hartshorne, she became entitled upon his death to dower in all the lands of which he was seized in fee at any time daring the coverture, and particularly in the lands owned and occupied by the said William Hartshorne. That nothing has been paid her in satisfaction or in lieu of her dower. The bill prays that the complainant may be decreed to1 be entitled to her dower in the said premises, and also to one third of the rents, issues and profits thereof, accruing siuce the death of her husband or her demand of dower; and that an account may be taken of what is due to her in that behalf, and that the said William Hartshorne may be decreed to* pay the same. That she may. be let into possession and receipt of the said rents and profits, and decreed to be entitled to hold and enjoy the same for life, and if necessary that a commission may issue for the purpose of assigning and setting out such dower.</p> <p>To this bill the defendant demurred for want of equity, and also for want of proper parties; assigning for cause of demurrer,. that it appeared by the said bill that a mortgage upon the said premises was given by the said Richard S. Hartshorne in his life time to Jacob duackenbush, and by him assigned to John W. Holmes, which still remained unsatisfied ¡ and also that a part of the premises had been conveyed in fee to Daniel Baber: yet neither the said Jacob duackenbush, John W. Holmes, nor Daniel Baber, are made parties.</p> <p>The cause came on for hearing upon the demurrer to the bill.</p>

.This bill was filed by the complainants to compel the specific performance of a contract entered into by John Rutherford, in his life time, with the complainants, for the conveyance of a tract of land situate in the county of Sussex.

<p>M'ho fourth section of the act, entitled, “An act to prevent in certain oases the abatement of suits and reversal of judgments,” (Rev. Laws, 164,) is in. tended to apply to eases where hy the act of law the cause of action sur. vives. The act is designed to save the necessity of filing bills of -revivor, not supplemental bills.</p> <p>if a suit becomes abated, and nothing bat the death of the party is necessary to be established to show the liability of the survivors, a bill of revivor alone is sufficient; but where new matter must be shown and proved, there s. supplemental bill must be filed.</p>

The bill, filed on the 6th of June, 1838, states, that the complainant, being seized of a valuable house and lot in the city of Newark, Lewis Loomis, of the city of New-York, proposed to purchase it for ten thousand dollars in cash, to which the complainant consented.

The complainants filed their bill for the partition of a farm in the county of Hunterdon; to one equal undivided fourteenth part of which they claimed title, under the will of John Manners, deceased. The defendants, by their answer, insisted, that the complainants, under the will, acquired no title to the premises whereof partition was sought to be made.

<p>Where any "of the defendants reside in this state, and are served with process, it is- not necessary, unless under special circumstances, that the order for the appearance of absent defendants should be published in any newspaper out of the state. Foreign publication is- only required where all of the deféndants reside out of the state.</p>

<p>Bill for foreclosure.</p>

<p>Where the bill has been sworn to, and an injunction issued and served, no alteration shall be made in the original bill on file; but the amended bill -must be engrossed anew, and annexed to the original.</p>

<p>Where, upon petition for surplus money, an order of reference is made to a jnaster, the master must make his report, and a final order of the court be made in the premises, before the money can be paid over.</p>

<p>Where by the terms of a lease it was agreed that the lessee should malee im. provements on the demised premises, at his own costs and charges, and that at the expiration of the term all the improvements so made should be and remain the property of the lessor, he paying to the lessee the value thereof — the improvements are to be valued as they were at the time the ■lease expired.</p> <p>Jf the lessor covenant that the lessee may, at any time during the term, erect .a carding and fulling mill, and any other machinery, upon the demised premises, and that at the expiration of the term all improvements made up. .on the lot shall be the property of the lessor, he paying for the same; the improvements to be paid for by the landlord are such only as he had previously authorized to be made.</p>

<p>The bill was filed by the complainant, to enforce the specific performance of a contract made by the defendant for the purchase of a farm, sold by the complainant as late sheriff of (he county -of Monmouth, upon an execution issued out of this court. It appears -by the bill, that a deed had been tendered by the .cornplainanf, which the defendant refused to accept. It also appears that the defendant had paid a part, of the consideration money to the complainant, and tlsat after refusing to accept the deed, the defendant had commenced a suit at law against the complainant to recover hack the money so paid. The bill prays a decree for specific performance, and also an injunction to restrain the suit at law.</p> <p>The grounds relied upon in the answer for the dissolution of the injunction, appear in lite opinion of the chancellor.</p> <p>The cause carne on for final hearing, upon the pleadings and proofs.</p>

The complainant filed his bill in this cause to obtain an injunction to restrain proceedings at law by Thomas Lowmason, one of the defendants, against the complainant and George K. Lowmason, the other defendant, for the recovery of a promissory note given by them to the said Thomas Lowmason, and which it was insisted in the bill that the payee was not entitled in equity to recover against the complainant.

<p>A mortgagor who has parted with all his interest in the mortgaged premises, Is a proper, though not a necessary party to a bill for foreclosure.</p>

Bill for foreclosure of a mortgage, given by Robert M. Williams and Elizabeth his wife, to Henry C. Van Riper and John Kelly, junior, dated 6th August, 1835, to secure the payment of five hundred and thirty-seven dollars, with interest.

The bill, filed July 25th, 1840, seeks relief against the sale of a farm of the complainant, in the county of Monmouth, made on the 23d of March, 1840, by Abraham G. Neafie, sheriff of said county, under an execution issued out of this court, upon a decree for foreclosure and sale of the mortgaged premises. The bill is filed against the sheriff and the purchaser at the sale, and sets out as ground for relief, 1.

<p>Bill for the foreclosure of a mortgage, given by Joseph McEwen and wife to the complainant, to secure the payment of a bond for eleven hundred dollars. The defendant, Joseph McEwen, by his answer, admits the bond and mortgage as set out in the complainant’s bill; but states that they were given to secure the payment of part of the purchase money of the mortgaged premises,- consisting of a lot of land in the township of Bergen, conveyed by the complainant to the defendant, McEwen, by deed dated the twenty-eighth day of August, eighteen hundred and thirty-five, That the said lot was conveyed to the complainant by one Aaron Tuers, and that the complainant sold and conveyed to the defendant about thirty-three hundredths of an acre of land more than was conveyed to him by Tuers. That at the time of the conveyance of the lot to the complainant, it was enclosed by fences which were understood to be line fences, and to designate the lines of the lot. That before the conveyance to the defendant by the complainant, the complainant removed the fence on the north-east side of the said lot, and about twenty feet, enclosing part of an adjoining wood lot. That about fifteen feet of the rear of the lot is claimed by the heirs of Aaron Tuers, as not included or intended to be conveyed in the deed from Tuers to the complainant. That the lot was purchased by the defendant for the purpose of erecting thereon a cotton factory and dying establishment, and believing that he had a lawful title to the said lot, as described in the boundaries in the said deed of conveyance, and as the fences stood at the time of the conveyance, the defendant proceeded to erect on the premises, at an expense of four thousand dollars, a dwelling-house, cotton factory and dye-house, and to sink a well. That the land now claimed by the heirs of Aaron Tuers, and to which the defendant believes they have a valid title, will, if recovered, deprive defendant of his well and nearly one half of the factory; that in addition to the loss of the land, the defendant will be subjected to great loss by the necessity of removal, and the interruption of his business. The answer insists, that no decree of foreclosure should be made, until the complainant procure and convey to the defendant a valid title for that part of the lot claimed by the heirs of Aaron Tuers; or, that such sum should be deducted from the amount due upon said mortgage, as will be sufficient to complete the title, or to indemnify the complainant against all loss and damages incurred by the failure of title to a part of the premises.</p> <p>The cause came on for final hearing upon the pleadings and proofs.</p>

<p>The bill was originally filed in the name of all the administrators of Samuel Dare, deceased, of whom Mary A. Dare, his widow, was one; but at January term, 1840, the name of Mary A. Dare, who claimed adversely to the complainants, was ordered to be stricken out of the bill as complainant, and she was made a defendant.* The bill states that Benjamin Allen, by his will, dated the 1st of December, 1823, after making provision for his wife, &c., bequeathed the residue of his estate to be divided equally among his children, and died on or about January 1st, 1824. That Benjamin Allen and William Allen, the executors named in said will, duly proved the same, and that William hath died, leaving Benjamin surviving. That the said Benjamin Allen settled his accounts as surviving executor of the said Benjamin Allen, deceased, in the surrogate’s office of the county of Gloucester, exhibiting a nett balance of eighteen thousand four hundred and forty-seven dollars and forty cents in his hands, to be disposed of agreeably to the will of the said testator. That .Mary A. Dare, one of, the daughters of the said testator, was, at the date of his will and at the time of his death, the wife of Samuel Dare, late of the county of Salem, deceased. That the said Samuel Dare died on or about the 15th day of February, 1838, intestate, leaving a large real and personal estate, and leaving the said Mary A. Dare his widow. That administration upon his estate was in d.ue form of law granted, by the surrogate of the county of Salem, to the complainants and the said Mary A. Dare. That the said Samuel Date died seized of a large real and personal estate; and that the .said Mary A. Dare has demanded and received her dower in the real estate, and will be entitled to one third of the surplus of the personal estate, amounting by estimation to four thousand dollars. That the said Samuel Daie was entitled, as the husband of the said Mary A. Dare, under the will of her father, Benjamin Allen, to the sum of twelve hundred and twenty-nine dollars and fifty-five cents, only a small portion of which'was paid to the said Samuel Dare in his life time. That the surviving executor of the said Benjamin Allen repeatedly promised to pay the said legacy, and actually paid to the said Samuel Dare, or to his wife Mary for him and to his use, interest upon the said legacy. That the complainants have applied to him for payment thereof, and that he refuses to pay the same. Prayer that the defendants may account, and pay over the legacy, with interest, to the complainants.</p> <p>The answer of the defendants admits the will of Benjamin Allen, the death of the testator, the probate of his will, the marriage of his daughter Mary to Samuel Dare, the death of Samuel Dare, and the right, of his widow, Mary A. Dare, to a portion of his estate, as set forth in the bill of complaint. And Mary .4. Dare, answering for herself, saith, that at the death of her father, Benjamin Allen, her husband, Samuel Dare, was a man of large estate, and carrying on a prosperous business; that he informed this defendant that he had no need of the said legacy bequeathed to her by her father, that he would not accept or receive it, or exercise any right or control over it, but that it might remain in the hands of her brother, the surviving executor of her father, for her sole and separate use and benefit, and that t.he interest accruing thereon might be received by her alone and be appropriated by her to such uses and purposes as she alone might see proper. That she received from the said executor sundry goods and chattels and payments on account of the said legacy, and also the interest on the balance thereof, up to the year 1837. That the said interest was so received by this defendant with the knowledge and approbation of her husband, the said Samuel Dare; that no part of it was paid over to him, but the whole of it was appropriated to such uses and purposes as she saw proper, without any control, direction or authority exercised or attempted to be exercised in relation thereto by the said Samuel Dare. The defendant, Benjamin Allen, surviving executor as aforesaid, answering for himself, saith, that he made certain payments on account of the said legacy to the said Mary A. Dare. That a settlement was made with her on the 28th of October, 1828, at which time there remained in his hands a balance of one thousand dollars, upon which she was entitled to interest, and which was paid to her from that time until the 28th of October, 1837; and that the interest from that time, with the principal of the legacy, still remains due. That the said Samuel Dare' in his life time, as defendant was informed and as he believes, always declinedsreceiving, or having any thing to do with the said legacy ; that he left it in the hands of this defendant, for the sole and separate use of the said Mary Á. Dare ; and that the interest to accrue thereon, was in like maimer to be received by her, and appropriated in such manner, and to such uses and purposes, as she might deem proper, without any control or direction from the said Samuel Dare. That the several sums of money paid by this defendant to the said Mary A. Dare, were paid to and for her sole and separate use; and he utterly denies that he ever paid to the said Samuel Bare, in his life time, any part or portion of the said legacy, or of the interest thereon, or that the said Samuel Dare ever demanded the said legacy, or the interest thereon, or that this defendant ever promised to pay him the same. Insists that the said legacy, not having been collected or reduced into possession by the said Samuel Dare in his life time, survives to the said Mary A. Dare.</p> <p>The cause came on for hearing upon the bill and answer; no replication having been filed, nor any evidence taken by either party.</p>

Injunction bill, filed May 1st, 1841, by the children and iheirs at law of John Ross, late of the county of Somerset, deceased, states, that the said John Ross, before and at the time of his death, was seized in fee simple and possessed of a large ¡tract of land, situate in the township of Bridgewater, in the ■county of Somerset, and being so seized and possessed thereof, •made and executed his last will and testament in due form of ■law to pass real estate, bearing date the…

<p>Bill, filed 25th of February, 1840, states, that, a short time previous to May 16th, A. D. 1836, Aaron L. Middiebrook entered into an agreement, as complainant was informed, to purchase from Stephen P. Brittan, the defendant, a tract of land containing about twenty-three acres and three quarters, situate about half a mile from Elizabeth-Town : that the price was three hundred dollars or more per acre, and upwards of two hundred dollars more per acre than the defendant paid for the same: that the complainant agreed to join Middiebrook in the purchase; but when the company was formed to take said properly in shares, as herein after mentioned, complainant disposed of his right to take a part, but never received one cent for the same, and has no expectation of ever receiving any thing r that before any deed was given for said property, Middiebrook procured one Jonathan D. Williamson to form a company to take said land in shares: that a company was made up, and complainant was offered a share, but declined taking any : that some time afterwards, Middlebrook and Williamson called at complainant’s office, and wished complainant to take a deed in his own name as a mere stakeholder or trustee for those interested in the property : that they informed complainant that the parties interested wished the deed to be made oat to him, he having no interest therein, that he would be a mere stake-holder, and need do nothing more in the business than merely sign deeds when any part of the property should be sold, and that they intended to lot off the land and sell it without delay, and pay the defendant the remainder of the purchase money out of the proceeds of the first sales. That the defendant knew of all these circumstances, and consented thereto, and particularly that complainant had no interest in the property, and took the deed as a mere stake-holder, and often so admitted. That about May 16th, A. D. 1836, the defendant called at complainant’s office, and said he had those papers ready, and produced a deed executed by himself and wife for the said premises, and duly acknowledged, bearing date May 16th, A. D. 1836: that at the same time the defendant produced a bond and mortgage on said premises, to be executed by complainant to him, for the balance of the purchase money, he having received about two thousand dollars thereof from Middlebrook and Williamson : that complainant objected to execute the bond, as he had no interest in the property, but the defendant informed him he need be under no apprehension of trouble or difficulty as to liability, as he would take the land or look to the land at any time for the balance of the consideration money; upon which assurance of the defendant, complainant was induced to sign said bond and mortgage. That the defendant had the crops growing on said land the year he sold it: that he received from Williamson and Middlebrook the avails of subsequent crops of the said land, and the proceeds of the sale of the same under a decree of the court of chancery, amounting to eighteen hundred dollars, so that he realized more than four thousand dollars from said property. That after the execution of the said bond, the defendant from time to time had interviews with the persons interested in the property, and extended the time of payment of the interest, and in some cases took notes ftom them for interest due, without consulting complainant, and never asked complainant to make any payment on said bond, nor ever intimated to complainant that he looked to him for any part of the same, and managed the business in his own way until after the mortgaged premises were sold, although at the lime of said sale the bond had been due some lime. That, after the premises were sold under the decree upon the mortgage, the defendant offered the persons interested in the lands, that if they would pay the residue of the purchase money, he would throw off' seven or eight hundred dollars, and would take their several notes endoised by others for their respective propoitions of said balance after said deduction. That, after said bond and mortgage were given, and interest dun thereon, the defendant borrowed one thousand dollars of complainant, and gave his note therefor, payable in six months, wil.lt interest: that he paid the interest, and three hundred dollars of the principal of said note when it became due, and would have paid the whole amount if tequired, but as complainant did not want it at that time, the defendant gave complainant his note for seven hundred dollars, payable in six months with interest; and although interest was due on said bond, and as complainant believes the piincipal also, when the money was borrowed and when it. became due and part thereof paid and the new note given, the defendant never intimated to complainant that he looked to him for payment of any part of the said bond, nor suggested to him to apply any part of the monies secured by the said note to the payment of any part of the interest or principal of said bond: that the complainant had no idea that the defendant would ever attempt to make him personally responsible on said bond, or trouble him with any suit on the same. That afterwards, the defendant tiled a bill ef privilege in the supreme court on the said bond against the complainant, to recover from him the balance alleged to be due thereon. Bill prays an injunction to restrain defendant from proceeding in the suit against the complainant, and also from assigning the said bond to any other person, and such other relief, <fcc.</p> <p>On filing the bill an injunction was allowed by the chancellor. On the 14th of July, 1840, the defendant filed a demurrer, which was subsequently withdrawn by leave of the couit, aud an answer filed.</p> <p>The answer admits, that on the 13th of May, 1836, the defemfant made an agreement in writing with Aaron L. Middlebrook, to sell him about twenty-seven acres of land about one fourth of a mile from Elizabeth-Town, at two hundred and seventy-live dollars per acre, and that on or about the 16th day of the same month the defendant and his wife, by the request of Middlebiook,conveyed to the complainant about twenty-four acres of the land so agreed to be sold to Middlebrook; and at about the same time, at the like request, he conveyed the balance of the tract to Jonathan D, Williamson; and for the balance of the purchase money for the said sale and conveyance to the complainant, the defendant received from the complainant his bond or obligation, bearing date the 16th dayof May, 1836, conditioned for the payment of four thousand five hundred and seventy-six dollars and sixty-nine cents, in one year, with interest payable semi-annually, which bond was secured by a mortgage of the same date, executed by the complainant and his wife, on the land conveyed to him as aforesaid. That the land so agreed to be sold to Middlebrook, was purchased' by defendant several years before the sale to Middle-brook, and for some years prior to the sale produced annually per acre the interest of three hundred dollars. That the said laud cost the defendant nearly one hundred dollars per acre, including improvements, and. the part conveyed to Williamson cost one hundred and fifty dollars per acre, exclusive of improvements. Denies that defendant was to receive from the sale upwards of two hundred dollars per acre more than the land cost, including improvements. The agreement to purchase of this defendant, made by Middlebrook, was made for himself, and no other person was then known to defendant to be concerned with him, and as defendant is informed and believes, the complainant agreed with Middlebrook to become interested as one of the purchasers, and after said agreement with other persons interested therein, sold out their interest in the same to Jonathan D. Williamson and others, at the rate of four hundred dollars per acre,- and that complainant sold his interest in the same for at least seven hundred dollars more than it cost him. Admits that it may be true that complainant has received nothing, and expects to receive nothing for his share so sold ; and that it may be true that Middlebrook did procure Williamson to form a company to take the land conveyed to the complainant in shares, that a company was formed for that purpose, and that complainant was offered a share or shares and declined taking any, that Middlebrook and Williamson wished complainant, to take a deed in his name, and hold the same as trustee or stake-holder for the purchasers, but denies that defendant, at or before executing his deed to the ■complainant, was acquainted with the plans or arrangement of selling and dividing the lands, or that he had any thing to do therewith, or that the complaiuant was in any manner a trustee for the defendant, or authorized so to act for him, or that the defendant at the time of executing the deed to the complainant, or at any time since, was in any way interested in the lands conveyed by him to complainant, other than as mortgagee thereof Admits that it may be true that Middlebrook and Williamson ■represented to complainant that he was to be a mere stake-holder or trustee for the purchasers, and need only sign deeds when any part of the property was sold, that they intended to sell without delay, and that the balance of the purchase money would be paid out of the proceeds of the sales, but denies any knowledge thereof or participation therein. The answer further states, that the son of the complaiuant had been employed by the defendant as his attorney and counsellor for several years previous to the said sale by the defendant, and defendant having full confidence in his accuracy, employed him to prepare the deed executed by the defendant and his wife to the complainant, as stated in the bill of complaint, and that if the consideration for the sals is omitted in the deed of conveyance, such omission defendant believes was accidental. Denies that the omission was by the direction, knowledge or consent of the defendant. States that the bond and mortgage given to the defendant by the complainant, were •drawn by the complainant’s son. Denies that the said bond and mortgage were delivered on any terms or conditions inconsistent with the absolute delivery thereof Admits that after the papers were executed, and at the (¡me they were exchanged, the complainant said to llie defendant, in a pleasant way, “ Now, judge, I hope you will look to the kind first, before you call on me for the bond;” and that, defendant said he would do so if the complainant wished it, which defendant, considered as a friendly act toward complainant and no part of the bargain. Denies that the defendant engaged to look to the laud aud not to the complainant for tlie payment of the purchase money, or that defendant made any other promise than as before staled. Admits that (he defendant received from Middlebrook and .Williamson, in promissory notes, one thousand nine hundred aud filly nine dollars and thirty cents, on account, of (he purchase money of said land, making, with- the' amount secured by the complainant’s mortgage, the whole consideiation for which said lands weie conveyed to the complainant. Denies that at the lime of executing the said bond and mortgage, or at any other time, defendant agieed to take back the land, or to look to the land at any time for the .balance of the consideration money. States that it was a part of the defendant’s contract with Middlebrook, that defendant should have all the crops (lien growing on the land, which defendant gathered, but that he lias received no other crop or profit except some pasture amounting to thirteen dollars and twenty-eight cents, which was' credited to the complainant. Admits that the moilgnged premises, upon a bill filed by tliis defendant, were sold by the sheriff' of the county of Essex upon a decree of this court, aud that, the defendant, received one thousand seven hundred and twenty-four dollars and fifty-four cents arising from said sale, and no more. Slates that after complainant agreed to become interested with Middlebrook in the purchase from defendant, the complainant and those interested with him sold out. their interest to a company for three thousand dollars above what the land was purchased for, for which they received certain promissory notes in payment; and that when the complainant agreed to take the deed, it \ as agreed by the purchasers to indemnify him from any loss in consequence of bis taking the-deed aud giving his bond and mortgage. Admits that about (he lime (he money secured by (he complainant’s bond and mortgage was becoming due, the defendant was called on by some of those interested in the purchase, to know if lie intended to foreclose his mortgage if the money should not. be immediately paid, to whom defendant staled that if the interest was paid he would not press for the principal ; soon after which this defendant received from complainant one hundred and fifty dollars, and no more, which was endorsed on tiie bond. Tital he was subsequently applied to by the same persons to know if he would not take the laud back, which the defendant, refused to do, but consented that if he could be paid, principal and interest, or if they would satisfy the complainant and pay the interest on (he bond, that he would credit five hundred dollars on the bond; one of which propositions this defendant supposed, fiom the expression used by those calling on him, would have been accepted. States that defendant, urged upon complainant to procure the bond of indemnity from those interested in the land, and from friendly feelings for complainant offered to lake the bond and endeavor to get it executed, which lie did, but without success. Deuic-s receiving any note or money ibr interest, on said bond except as before stated. Slates that in October, 1837, the defendant (being urged thereto by complainant) took from the complainant by way of loan one thousand dollars for six mouths ; that, at, its maturity and afterwaids defendant was desirous to pay off the note, but complainant declined taking it. Defendant insisted on paying three hundred dollars, and for the balance due on said note to the complainant, on the 22d day of June, 183S, the defendant gave his note to the complainant for seven hundred dollars, at six months. Denies that, this tempomry loan was in any wise to affect the complainant’s bond to the defendant,. Admits that it may be true that nothing was said, on giving said notes, about the complainant’s bond to the defendant,. as lie had promised first to proceed against the land, nor was ¡my thing then said respecting a. nolo for five hundred and seventy-two dollars which defendant then held against the complainant and his son. Admits the filing of a bill of privilege against the complainant for the recovery of the money due on the bond. Insists that defendant has said or done nothing which should preclude or bar hcim from proceeding in his action against the complainant to recover the balance due on the bond, and that the injunction ought to be dissolved. The answer further states, that since the filing of the bill of complaint in this cause, the complainant has prosecuted the defendant at law to recover the promissory note for seven hundred dollars given by the defendant to the complainant; that the defendant appeared to the said action, and gave notice that he would set off so much of the balance due on the bond as would be sufficient to satisfy the note, and would claim the balance, and that the said suit is still pending undecided. Defendant has no recollection or belief that after the sale of the said mortgaged premises he ever authorized the said Aaron L. Middlebrook, (who married this defendant’s daughter sometime after the execution of the said article of agreement.) to throw off any sum whatever of the balance due on the said bond, or to take any person’s notes for the same.</p> <p>The cause came on for hearing upon motion otr behalf of the defendant to dissolve the injunction, upon bill and answer, before the chancellor, at Newark, on the 5th day of May, L84I.</p>

Bill, for the foreclosure of a mortgage given by the Flax and Hemp Manufacturing company to Edward Kellogg, to secure the payment of two thousand nine hundred and ninety-four dollars and six cents, assigned by Kellogg to the complainant The bill sets forth two subsequent mortgages upon the same property, both dated the 24th of October. 1838, one of which was given to Jonathan Thorne, to secure the payment of ten thousand dollars, and the other to Sidney B. Whitlock, to…

<p>it is not necessary that actual violonee be shown, to entitle the party to a divorce on the ground of extreme cruelty.</p> <p>isolated cases of wrong or cruelty of long standing, on the part of the husband, will not entitle the wife to a divorce, especially where a difleront course of treatment has since been pursued. But evidence of such acts are competent and proper, in connexion with more recent acts, to show a series of wrongs and injuries on the part of the husband.</p> <p>A notice served by the husband on the wife, after the institution of proceedings against him for a divorce, requesting her to return, can avail nothing in his defence.</p>

<p>The bill in this cause was filed for the foreclosure of a mortgage given by Francis Mann and wife and John W. Berry and wife to the complainant, bearing date on the first day of February, eighteen hundred and thirty-one, to secure the payment of twenty thousand dollars.</p> <p>The answer of the defendants, (t The Monroe Manufacturing company,” admits the bond and mortgage as stated in the complainant’s bill; but states, that the mortgaged premises were sold and conveyed by the complainant and others to Francis Mann and John W. Berry, by deed bearing even date with the complainant’s mortgage, for the consideration of twenty-five thousand dollars, and that the bond and mortgage mentioned in the complainant’s bill were given to secure part of the purchase money of said premises: that the premises, prior to the execution of the deed, were declared by the three owners thereof to be divided into six hundred and eighty-two shares, and that at the time of the said sale complainant held one hundred and forty-nine shares thereof, and was entitled to a like proportion of the consideration money given for the purchase of said premises, which proportion amounted to about five thousand four hundred and sixty dollars; that on the same day, and at the time of the execution of the deed to Mann and Berry, and before the delivery of the deed or of the bond and mortgage, the complainant duly executed, under his hand and seal, a special covenant of warranty of the title to said premises, endorsed on the deed in the following words- <! Know all men by these presents, that I, John G. Coster, one “ of .the grantors within named, do hereby, for myself, my heirs, A executors, administrators and assigns, in respect of my propor- “ tion, being one hundred and forty-nine shares out of the six “ hundred and eighty-two shares within mentioned, and of the “ like proportion of the consideration monies within mentioned, “ but not in respect of the residue of said shares or of the said “ consideration money, covenant and agree with the within named Francis Mann and John W. Berry, their heirs and as-ft signs, that I am the owner of the said one hundred and forty- “ nine shares, and have good right to sell the same in manner “ within mentioned, and that the same are free of all incumbrances, and that I will warrant and defend the title to the *•' within premises to the extent of said shares and no further, to •“ said Francis Mann and John W. Berry, their heirs and assigns.” Insists, that the covenant was a part of the transaction of sale and purchase, that it was intended to be and should be considered as a part of the said deed of conveyance. States, that by deed, dated June 23d, 1834, John W. Berry and wife conveyed to James N. Mathews the undivided half part of the premises, machinery, Scc. as described in complainant’s bill, and that by deed dated September 20lh, 1834, Francis Mann and wife conveyed to the said James N. Mathews his undivided half part of the said premises and machinery, See. subject to the complainant’s mortgage: that the said deed from Mann to Mathews contained covenants of quiet possession, against incumbrances of every description excepting complainant’s mortgage, and of general warranty : that by means of said conveyances, Mathews became possessed of the entiie premises, with the machinery thereon, and that he also received the title deed and covenant executed by complainant. States, that by deed dated August 22d, 1835, Mathews, for the consideration of thirty thousand dollars, conveyed the premises, with the improvements, to Samuel G. Wheeler, subject to complainant’s mortgage, which was accounted as part of the consideration money, and that Mathews passed to Wheeler the title deeds and the aforesaid covenant; and that the deed from Mathews to Wheeler contained full covenants of warranty of title. That when Wheeler purchased the premises, the mills and buildings were out of repair; that he expended large sums of money in repairing and painting the same, and in purchasing and erecting machinery: that he erected another building upon the premises, which he also stocked with machinery, and that by means of his improvements the property was greatly enhanced in value. That the “Monroe Manufacturing company” is an incorporation created by the legislature of New-Jersey, for manufacturing cotton and-other articles; that their location and seat of business is in Paterson ; that for the purpose of carrying on their business with greater advantage, they purchased from Samuel G. Wheeler the property covered by complainant’s mortgage.: that Wheeler and wife, by deed containing full covenants, dated 24th March, 1838, for the consideration of sixty thousand dollars, conveyed to said company the same premises set forth and described in complainant’s mortgage and bill, together with the mills and improvements thereon : that the premises, at the time of the last mentioned purchase, were understood to be subject to complainant’s mortgage, and that the company were to pay off and satisfy the same: that the deed from Wheeler to the company contained covenants of seizin and warranty against incumbrances, and that all the title papers and the covenant of complainant were handed over to the company. That the title of complainant and the other original grantors, was not good for all the .premises conveyed by them to Berry and Mann and embraced in .complainant’s mortgage; but that, their title to a part thereof, upon which Wheeler had erected a building and made valuable improvements, (a -particular description whereof is contained in the answer,) was wholly defective : that while the premises were possessed by Malhejvs, an action of trespass and ejectment was instituted against him in the supreme court of New-Jersey, on the demise of “ the Society for establishing useful Manufactures,” for that part of the mortgaged premises described in the answer: that although the suit was pending against Mathews at the time of the purchase by the company from Wheeler, they were induced by the inquiries he had made respecting the title, and the opinions obtained from his counsel, to believe that his title, derived origiually from complainant and others, was perfect and valid for the whole premises, and that they purchased under such belief. States, that after Wheeler purchased the premises and entered into possession, and during the pendency of the said action of ejectment., he had several interviews upon the subject with complainant and his counsel; that he gave complainant notice of the suit, and required him to defend the same; that complainant never denied his liability upon his covenant,, but always promised Wheeler to have the matter arranged : that complainant’s son aud counsel visited Paterson and had one or more interviews with the governor of said society upon the subject: that upon complainant’s request the trial of the cause was once or oftener postponed, on account of the absence of one of the grantors from the country, upon complainant’s allegation that on his return home the matter should be settled to Wheeler’s satisfaction. That once, when the cause was noticed for trial, a written notice informing him of the time and place was previously left at complainant’s dwelling house in Ncw-York, requesting him to defend the title to the property against the claim of the said society : that complainant failed to attend to the cause, and that the plaintiff obtained judgment in his said action for the recovery of said premises ; that subsequently a writ of possession was issued, directing the sheriff to give the plaintiff possession of the ground and premises recovered by him : that the company, having previously purchased the whole premises, including the part, for which judgment was recovered by the said society, and being informed that the sheriff was about to dispossess them of that part thereof, negociated with the society and purchased for five thousand dollars the said piece of land and premises; which sum was the consideration for the value of the rights of said society in the land, not embracing the improvements made thereon by the company and Wheeler; and that a conveyance was executed therefor on the 13th of August, 1838, and the money paid. Insists, that an allowance by way of set-off, with interest, should be made from the mortgage debt, equal to the proportion which that part of the premises bore to the whole' in respect to the consideration paid to complainant and others upon the original purchase from them, including the amount secured by the mortgage. Charges, that the premises which were defective in title, and for which a recovery was obtained upon a paramount title, constituted a large portion of the whole value of the property conveyed by complainant and others to Berry and Mann; that the relative value thereof to the residue of the premises, .is at least one fifth of the whole, and that the share of the consideration money which should be refunded, with interest, on account of the defect in the title, will greatly exceed the amount paid to the society, and the interest thereon. States, that Berry and Mathews have left this state, and as they believe do not reside in the United States, and that Mann is not a resident of New-Jersey; that Wheeler has become embarrassed, and will be wholly unable to respond to the company on his covenant for any part of their damages in case the whole mortgage debt should be recovered. Insists that in an action at law, complainant would be liable to the company, as assignees of Berry and Mann,- upon his covenant of warranty of title, to the extent of the amount of his then interest in the premises, and the like proportion of the whole consideration of the purchase from him and others; but inasmuch as complainant resides out of this state, and a prosecution upon the said covenant in a foreign state would be attended with embarrassments, the company are willing to take five thousand dollars, with interest, the consideration given to the “' Society for establishing useful Manufactures” for their conveyance; or to have that much allowed as a credit on the mortgage debt in discharge of the said covenant of complainant; but they insist that in equity an allowance by way of set-off or deduction ought to be made from the mortgage debt of the amount of five thousand dollars, paid to the society, with interest, or a deduction of a rateable proportion of said amount,.</p> <p>The cause came on for hearing upon the bill, answer, and replication.</p>

<p>The bill states, that Matthias Williamson, late of the county of Essex, was in his life time, and at the time of his death-, seized and possessed of considerable personal estate: that the said Matthias Williamson died intestate, on or about the 29th day of March, 1836, leaving the complainants and the defendants, his children and only heirs at law and next of kin, him surviving. That soon after the death of the said intestate, G. L. W., one of the complainants, and J. D. W., one of the defendants, obtained grant of letters of administration from the surrogate of the county of Essex, upon the estate of said intestate ; and that at the term of June, 1837, the orphan’s court of the county of Essex revoked the letters of administration granted to the said C. L. W., by means whereof the sole administration of the estate of the said intestate devolved upon the said J. D. W.; who by virtue of the said letters of administration possessed himself of the personal estate and effects of the said intestate, greatly more than sufficient to satisfy his just debts and funeral expenses. That the said W. D. W. was advanced by the said intestate in his life time to a very considerable amount, and greatly exceeding the whole personal estate of the said intestate at the time of his death; and that the said W. D„ W. was indebted to the said intestate at the time of his death, beyond his proportion of the intestate’s personal property as one of the next of kin, and that the intestate had paid large sums of money for the said W. D. W. which remained due to the intestate at the time of his death. That in the inferior court of common pleas of the county of Essex, at the term of June, 1818, the intestate recovered a judgment against the said W. D. W. for two thousand five hundred dollars, which still remains unpaid and unsatisfied, and which became, at the death of the intestate, a lien upon the portion of the real estate of the said intestate to which the said W. D. W, became entitled as one of the heirs at law of the said intestate. That in the year 1837 the said W. D. W. sold and conveyed to the said J. D, W. all his right, title and interest in the real and personal estate of the said intestate, for a sum very inadequate to the value of one seventh of the real and personal estate of the said intestate, the proportion to which the said W. D. W. was entitled; and that the said J. D. W., at the time he made the said purchase and accepted the conveyance’ and assignment of the said real and personal estate, had full knowledge of the existence of the said judgmenfc' against the said W. D. W. and the lien of said judgment on the said real estate,- and of all the other facts and ciicumstances above set forth.That as soon as the knowledge of the said purchase by J. D. W. from W. D. W.- came to the knowledge of the complainants,they by their attorney applied to the said J. D. W. and earnestly solicited him, as the administrator of the said intestate,- to cause' such legal proceedings to- be instituted on the said judgment against the said W. D. W. as might be necessary to recover from' him the amount due from’him to the intestate, or-else that the said J. D. W.,- having purchased all the interest of the said W. D. W. in and to the real and personal estate of the intestate, Would account to the complainants in the amount due from the said W. D. W. to the intestate, at least to the amount of the Value of such interest so- purchased, deducting his own shave thereof:' that instead of so doing, the said J. D. W. has taken flo measures- since the- death of the said' intestate, by execution or scire facias,- to enforce the payment of the money due on said: judgment, or the lien created thereby, but since the said purchase' By the said J, D-; W. of the said W. D. W., at the term of September, 1837, of the supreme court of New-Jevsey,-the said-J. D. W., as administrator as aforesaid,- caused to be instituted against the said' W. D. W. an action of debt upon the said judgment in favor- of the said intestate, against the said W. D. W., and such' proceedings were thereupon had that the said cause is pending at issue and noticed- for trial at the next Essex circuit; the object of which proceedings on the said judgment,- the complainants are’advised, is to relieve the said J. D. W. and the estate purchased by him from the said W. D. W. from being answerable for said judgment. The bill insists that the judgment recovered by the intestate, as aforesaid, against the said W. D. W. having becóme upon the death of the said intestate, a lien upon the réal estate of said intestate which descended to the said W. ©. W.j the said judgment should be established and declared te» 'be still a subsisting lien thereon; and in case the said lien has 'been lost or destroyed, that it has been through the groes negligence of the said J. D. W. and by collusion with the said W. D. W\, and that the said J. B. W. ought to be charged with the amount due on said judgment, or else that the proceeds arising ■from the sale of the real estate, advertised to be sold -as hereafter stated, which descended from the intestate to-the said W. B. W. as aforesaid, may be declared to be held in trust to satisfy what is due on said judgment.</p> <p>The bill further charges, that the said J. D. W., as one of the heirs at law of the said intestate, applied to one of the justices of the supreme court of this state for the appointment of commissioners to divide the real estate of the said intestate; that such commissioners were accordingly appointed on the 17th of February, 1838; that a report has been made by said commissioners to the said justice that the said real estate could not be .divided, whereupon the said justice made an order to sell the same at public auction ; and that the said commissioners, by virtue of said order, advertised the same for sale, and that the said sale is advertised to be held on the 28th day of July instant. That the real estate of the intestate consists of various dwelling-houses and farms, and might be sold to groat advantage if sold ■on reasonable and accommodating terms and credit, but the complainants believe that if the said real estate is sold in the present state of depressed prices and pecuniary embarrassments of the country, it must be sold at a great sacrifice; and that the complainants, or most of them, have not the means of becoming purchasers themselves of any considerable part of the said real estate. That the order for the sale of the said real estate, herein before referred to, was made in pursuance of an act of the legis3a ture of the slate of New-Jersey, entitled, “An act supplementary to the act, entitled, an act for the more easy partition of lands held by coparceners, joint tenants and tenants.in common, and the act entitled, an act to ascertain the power and authority of the ordinary and his surrogates, to regulate the jurisdiction of .the prerogative court, and to establish an orphan’s court in the several counties of this state,” passed the 7th day of February, 1816; by the fourth section of which act it is enacted, That no sale or conveyance of any tract or tracts of land or real estate made by virtue of this act, shall impair or in any wise affect the rights and interest of any person or persons therein, other than the persons being or claiming to be coparceners, joint tenants or tenants in common in the same. That although the complainants T. S. and F. B., in right of their respective wives, are tenants in common with others in the real estate so advertised to be sold, yet the complainants are advised and insist that the estates and interests of S. H. S. and M. B., the wives of the said T. S. and F. B. respectively, are not liable to be sold by the said commissioners and converted into personal property, against their will, and that they cannot be deprived of (heir inheritance without their consent, which they have not given and now refuse to give; and that their rights are also protected by the sixth section of an act of the legislature of the state of New-Jersey, entitled, “An act granting relief in certain cases against collusive judgments and wrongful alienations of land,” passed the 2d day of March, 1798. That the said J. D. W. and the said commissioners, by virtue of the order for sale made as aforesaid, are proceeding to sell the said real estate, and will sell the same unless restrained by this court; and insists that no sale of the said real estate ought to be made without saving the rights and estates of S. H. S. and M. B. in and to the real estate descended to them from their father, and without first deciding whether the judgment recovered by the intestate against the said W. D. W. is or is not a. subsisting lien on the real estate of the said intestate descended to the said W. D. W. as aforesaid, and how the money due on said judgment should be paid and satisfied. That since the death of the intestate the said J. D. W. has been in the receipt of the rents and profits of the whole or a very considerable part of the jeal estate whereof the said intestate died seized, and has never accounted to the complainants therefor, and that he has also the title deeds of the said estate, which the complainants pray he may be directed to produce. Prayer that the said J. D, W. and the said commissioners may be restrained by injunction from selling any part of the said real estate until the further order of the court: that the judgment recovered by the intestate in his life time against the said W. D. W. may be decreed to be a lien on the share of the real estate of the said intestate which upon his death descended to the said "W. D. W., or that the said judgment may be satisfied out of the proceeds of the sale thereof, or that the said J. D. W. may be charged with the amount due on said judgment: that the estates and interests of S. H. S. aud M. B. may be established, and decreed not liable to be sold by the said commissioners: that partition be made of all the real estate whereof the said intestate died seized, among his children and heirs at law, according to the practice of this court, and all necessary conveyances be executed for carrying such partition into effect: that an account may be taken of the rents and profits of the said real estate which have been received by the said J. D. W., or might have been received by him without his wilful default, and payment decreed of what shall be found due from him on such account to the complainants, according to their respective shares and interests in the same; and that the complainants ■may have such other relief, &c.</p> <p>Upon filing the bill an injunction issued, pursuant to the prayer of the bill.</p> <p>Separate answers were filed by the defendants. The answer of J. D. W. admits that M. W. died intestate, at the time stated in the bill of complaint, seized and possessed of considerable real and personal estate, and leaving the complainants and defendants iiis children and only heirs at law» and next of kin him surviving: that administration upon the estate of the intestate was granted by the surrogate of the county of Essex to this defendant and C. L. W.: that the letters to the said C. L. W. were subsequently revoked, and the sole administration vested in this defendant: that upon the settlement of the accounts of the said C. L. W. as administrator, there was found in his hands a balance of two thousand three hundred and fifty-nine dollars aud sixty-one ¿cents, which exceeds his distributive share of the personal estate of the intestate, and which, although demanded, he refused to pay over to this defendant. That this defendant exhibited his accounts as administrator as aforesaid, for settlement, in the orphan’s court of the county of Essex, and exceptions being filed thereto, it was referred to auditors, who reported a balance in this defendant’s hands of twelve thousand four hundred and sixty-five dollars and sixty-five cents ; from which one thousand six hundred and fifty dollars ought to be deducted, that amount having been twice charged against this defendant by the auditors in their report; which leaves in this defendant’s hands the sum of ten thousand .eight hundred and fifteen dollars and sixty-five cents, to be distributed to the next of kin of the intestate, according to law, to one seventh of which this defendant is .entitled as one of the next of kin. Admits the indebtedness of W. D, W. to the intestate, as stated in the complainants’ bill, and that the amount due from the said W. D. W. to the intestate at his death exceeded the share of the said W. D. W. in the intestate’s estate: that a judgment was recovered by the intestate in his life time against the said W. D. W. for two thousand five hundred dollars debt: that this defendant was advised, that inasmuch as the said judgment was recovered in the common pleas of Essex county, the same was not a lien upon that part of the real estate ,of the intestate which descended to the said W. D. W. which was not situated within the said county; and that, by the advice •of counsel, he caused a suit to be instituted in the supreme court .upon said judgment, in order to create a lien upon the real estate ,of the said W. D. W. not within the said county, which is still pending. Denies that the said suit was instituted to relieve the share of the said W. D. W. from the lien of said judgment. Admits the sale by W. D. W. of his share of the real and personal estate of the intestate to this defendant, on or about the 28th day of July, 1837, for which this defendant gave his bond for five thousand dollars, conditioned for the payment to the said W. D. W. of twenty-five dollars per month during his life, and on the death of the .said W. D. W. fifteen hundred dollars, if .such balance remained in the hands of this defendant, to be ditided among the children of the said W. D. W.; which consideration was more than adequate to the value of said share ; but that, owing to dissatisfaction expressed by some of the complainants in regard to the said purchase, this defendant, on the 18th day of June,- 1838, executed to the said W. D. W. a reconveyance of the said share, upon which this defendant’s bond, given for the purchase thereof, was delivered up and cancelled. Denies that the said purchase was made with the view of relieving the said share from the lien of said judgment, which lien this defendant has always admitted and still admits. That the said commissioners can only sell the said share subject to the lien of the said judgment; and that the said commissioners would be bound to pay out of the proceeds of the sale of said share, the amount due on said judgment, to the administrator of the said intestate, to be by him distributed among the next of kin, or that the said commissioners would become trustees for the said-next of kin, and be bound to pay them their respective shares of the said- proceeds. Admits the application by this defendant, as one of the heirs at law of the said intestate, and as a- tenant in-common of the real estate whereof he died seized, to have partition made thereof, and insists upon the right of this defendant to have such partition or sale made, and that the consent of the said S. H. S. and M. B. is not necessary to the making such partition or sale, and- that the said commissioners are authorized by law to sell the said real estate, and to account to the said S. H. S„- and M.-B. and their respective husbands, for their respective" portions of the proceeds of the said sale. Denies that this defendant has a large portion of the personal estate of the said intestate, or of the rents and profits of his real estate accrued since his death, in his hands unaccounted for. The answer of W.D.W., the other defendant, admits that he and the said intestate had large dealings in the intestate's life time; that the intestate recovered the judgement for two thousand five hundred dollars, specified in the bill of complaint; but that upon a fair settlement of their accounts it would appear that the said judgement was satisfied and a balance due to this</p> <p>Denies that any advancement was made to this defendant by ths intestate in his life time, but insists that all their dealings were regular business transactions, and that the whole claim of the intestate against this defendant has been paid and satisfied. Admits the sale and conveyance by this defendant of his share in the personal and real estate of the intestate, to the said J. D. W,, but insists that the same was bona fide and for a valuable consideration, and that the said share has since been reconveyed to this defendant, as stated in the answer of the said J. D. W.</p> <p>The cause was heard upon the bill and answers; the only-question submitted for the consideration of the court, being, whether the defendant, as administrator, could, under the circumstances of the case, be called upon to account in this court/</p>

At October terna, 1838,* a feigned issue was awarded in this cause, to ascertain the fact, whether Thomas L. Woodruff ever paid to the estate of Israel Carle, in whole or in part, a certain mortgage given by the said T. L. W. to the said Israel Carle.

<p>This bill was filed to set aside a sheriff’s sale. The grounds relied upon to invalidate the sale, appear in the opinion of the chancellor. The cause' was heard upon the pleadings and proofs.</p>

This bill was filed for relief against a sale of the real estate of the complainant, made by the sheriff of the county of Warren, by virtue of an execution issued out of a court of common law.

This cause came on for bearing, in pursuance of an order of the court, made at the term of July last, upon the application of the complainants to set aside a verdict, and to grant a new trial of a feigned issue ordered by this court. The issue was tried at the Mercer circuit, in June term, 1841, and a verdict rendered in favor of the defendant. A state of the case had been prepared, pursuant to the order of the court at the last term.

<p>Note. The following opinions were not received by the Reporter in time to be inserted in their appropriate places in the volume.</p> <p>Under an assignment made by an insolvent debtor, all his estate passes, without reference to the manner in which it was acquired. Whatever rights ho may have in the property of his wife, acquired by virtue of his marriage, will pass to the assignee.</p> <p>It seems that assignments in bankruptcy or by operation of law will not deprive the wife of her right of survivorship, unless some act is done by the assignee reducing her dioses in action into possession.</p>

<p>Where a lease is made by the mortgagor subsequent to the mortgage, the mortgagee is not entitled to an account in equity against the tenant for the rents.</p>

<p>As a general rule, the specific performance of a contract of sale will not he decreed in equity, if the vendor cannot make a good title, although the contract has made no provision as to covenants of warranty to be inserted in the conveyance.</p> <p>But if it clearly appear that it was the intention of the parties that the purchaser should take the risk on himself, and receive only a conveyance of such interest as the vendor had, a specific performance of the contract will be decreed against the purchaser, though the vendor has no title.</p>

Os a bill for foreclosure, a decree pro confesso had been taken against all the defendants except the purchaser of the equity of redemption, who appeared and demurred to the bill. The demurrer was overruled at April term, and the usual order made, requiring the defendant to answer in forty days. A plea was filed within the time limited in the rule, but no answer.