Volume 2 — Paige's Chancery Reports

<p>This was a bill filed for a divorce a mensa et thoro.</p>

The bill in this cause was filed by the brother and heir at law of John Gardner deceased, against the surviving executor and trustee under the will of the latter, and certain persons claiming to be the general legatees named or described in the will.

Naomi' Dunbar, by her will, devised her real and personal estate to her son Abraham S. Hallett, charged with the payment of the legacies given in the will; and she appointed him, together with her son Richard S. Hallett, her executors. Among other legacies, she gave to her grand children Thomas C. Hallett and Hannah Hallett $1300 each, with interest from the death of the testatrix; payable when they became of age.

This cause was heard on pleadings and proofs as against the defendant Winans, and a final decree in his favor was made therein in May, 1829.' D. R. Dunham, one of the defendants, had been examined as a witness for the complainant, against his co-defendant, subject to all just exceptions. His testimony was objected to at the hearing upon the ground of interest, and was finally rejected by the Chancellor upon that ground.

The bill was filed in this cause to set aside a decree obtained by the defendants in this court against divers persons who are not parties to the suit, and to restrain the present defendants from carrying that decree into effect, upon the ground that one of the former defendants died before the decree. The master having allowed an injunction for that purpose.

The bill in this cause was’filed previous to the first day of January, 1830, for the partition of lands, in the county of Schoharie. The bill, having been taken as confessed against all the defendants, was set down for a final decree at the present term.

The complainants filed their bill in this cause to set aside a conveyance made by A. Achorn to the defendant Mead of his farm in the county of Chenango, in trust for the defendant Jemima Achorn who was living with the grantor as his wife at the time of the conveyance.

This was an application on the part of these infants to remove Thomas E. Drake from the guardianship of the wife, upon the alleged grounds of insolvency and misconduct.

This was an appeal from the sentence and decree of the surrogate of Rensselaer county, on the settlement of the account of the administration of the estate of Gilbert Marsellis deceased.

In 1818, Leiber and Ehle, two of the defendants, owned a tract of land in the village of Canajoharie, including the church lot in question in this cause. The defendants and divers other persons at that place associated for the purpose of building a church, and Leiber and Ehle agreed to give the lot for that object.

After the decision of this cause as reported in 1 Paige’s Rep. 239, the complainant appealed to the court for the correction of errors, and the decree of dismissal was affirmed with costs. Pending that appeal the complainant called the defendant as a witness before an examiner, in another cause pending in this court, in which the same note in controversy in this suit was in question between the complainant and third persons.

In May, 1816, Russell Atwater was the owner of the premises in question in this cause, together with a large tract of land in the county of St. Lawrence. By a deed of that date, in consideration of one dollar and the love and good will which he bore to his son Phineas, he conveyed to him the mill lot now in controversy with the buildings thereon.

The complainant filed a bill in this case to obtain a divorce upon the ground of the adultery of her husband. He suffered the bill to be taken as confessed. On a reference to a master the facts charged in the bill were fully established. Upon the coming in of the master’s report.

Catharine Kohler, the special guardian of the infant children of Charles Kohler deceased, under an order of this court, sold to Browning a piece of land at Bushwick, containing about .two acres; and the sale having been reported to the Chancellor, he confirmed the report, and directed a conveyance to be made to the purchaser.

The bill in this cause was filed in July, 1829, by a judgment creditor of Vanden. Heuvel against the latter and against Campbell and Morris, to reach certain property which it was alleged the two last named defendants held in trust for Vanden Heuvel.

The complainant, in 1821, leased Yauxhall Garden in the city of New-York, to Timothy Madden for the term of fourteen yearsYrom the .first of May 1825, át a yearly rent of $750.

The bill in this cause was filed in July, 1824, in the name of the complainants, who were infants, by A. Brunson, as the next freind of W. Waring, and by W. Baker, as the next friend of the other three complainants ; charging the defendants, who were executors, with mismanagement of the estate of the fattier of the complainants; and also alleging that one of the defendants was irresponsible.

In 1797# J. Quick owned a ¿trip of land in' the city of New-York, on the east side of the -Bowery Lane, about-4'00 feet in length on the Bowery, and extending back 66 feet at the north'end and 120 feet- at the sputh. ' P. Stuyvesant, the father of the defendant, owned the Bowery farm, lying north and east of ‘ Quick’s land, and extending back to the East River.

This suit was originally commenced before the chancellor, who from the press of business before him not having time to hear the same, referred it to the vice chancellor of the first, circuit, to be heard and decided by him; with liberty to either party to bring the same to a hearing at the next or any subsequent term of such vice chancellor’s court, on the usual notice.

This was an application for the re-sale of mortgaged premises in the city of New-York. The property belonged to infant defendants, subject to the right of dower of their mother. The amount due on the mortgage, exclusive of costs, was less than $1700, and the premises were struck off to Turner the purchaser for $2025.

<p>Where the decree is full as to any branch of the cause, or as "to any of the. . parties thereto, it "must be enrolled before a deed can be executed on a sale under-the decree, and before an execution.-can be issued to enforce á per. formance of such decree.' , . .</p> <p>If the enrolment of any subsequent decree is. necessary, it is to-be; made by a continuance on the record of the first enrolment, . .</p>

The defendant in this case was borught up on an attachment for a contempt in not complying with an order of the court directing him to deliver over his property upon oath to a receiver. The prisoner being in the custody of the sheriff of the city and county of New-York in execution on civil process, a habeas corpus was issued to bring him into court.

This case came before the chancellor on exceptions to a master’s report, allowing certain exceptions to the answer of the defendant Mapes, for insufficiency.

The bill in this cause was filed for the purpose of obtaining a divorce on the ground of adultery. The wife put in a general answer denying the adultery charged in the complainant’s bill, and a feigned issue was thereupon directed.

^:aE ^ ™ cause was filed by the complainants, in jq27, to restrain the defendants and their associates from erecting a free bridge across the Seneca river or Cayuga outlet between the north bridge of the complainants and that of the Montezuma Bridge Company, under the act of the 16th of April,' 1825. An injunction was granted by the late chancellor, which had suspended the proceedings of the defendants. The cause was now brought to a hearing on bill and answer.

L a whence Shuler died in 1808, possessed of a farm containing about 300 acres, in fee, together with a considerable personal estate. He left by his wife Lena Shuler eleven children him surviving, to wit: Peter Shuler, Levi Shuler, Mary the wife of Jacob Serviss, Jeremiah Shuler, William Shuler, Caty the wife of Peter Covenhoven, Betsey Shuler, Sally Shuler, Abraham Shuler, Van Vleelt Shuler, and Lawrence Shuler.

The bill in this cause was filed in 1826. It stated, among other things, that in March, 1823, the defendant, for the consideration of $500, sold to the complainant the exclusive right and liberty of making, using and vending “ Ballou’s patent improved threshing and winnowing machine,” for the counties of Ontario and Yates; and that the defendant in the assignment covenanted that he had authority to convey such exclusive right; and warranted the same right to the complainant,…

This was an appeal from the sentence of the surrogate of the county of Westchester. The appellant propounded a testamentary paper as the last will and testament of Martha Williams deceased, in which he was named as executor. The whole case turned upon the question of fact whether the decedent executed the will understandingly, and at a time when she was possessed of a sound and disposing mind and memory.

This was a bill filed by two of the executors of Abraham Egbert against their co-exedutor, to compel the payment of two bonds given by the-defendant to the testator ; which payment the complainants alleged was necessary to satisfy the debts of the testator, and, particularly a bond given to Decker; one of the complainants, as to which Decker claimed .a priority of .payment.

The bill in this cause was filed in 1818, by Hayden, as the committee of Loomis who had been found a lunatic, to set aside a judgment in favor of Spencer against Loomis and - J. 0. Rolph, entered upon a bond a warrant of attorney alleged to have been executed while Loomis was of unsound mind. The cause was heard before Chancellor Sanford, and he awarded an issue to try the question of lunacy.

Exceptions were filed to the separate answers of the several defendants in this cause' for insufficiency ; which exceptions, on reference, were allowed by the master. The complainants then odtained an order for leave to amend their bill, and that the defendants answer the amendments and exceptions together.

These causes came befdre the chancellor upon.an. appeal from an order made by the late equity court of the first circuit, on the 31st of December, 1829. The second suit was upon a crpss bill filed by the defendants in the first suit.

The défendant J. B. Marie'was- a shipping merchant, and importer • of-goods, residing' in the city, of Néw-York;. and the complainants were merchants living in' Paris, who carried on business in the city of Ñew-York By an agent. Marie , had for two or three years been in the. habit of purchasing goods from his agént upbn .credit, and without, giving security.

jN this case the alleged lunatic was a resident of Wilton, in the county of Fairfield and state of Connecticut. A petition was presented by her brother in law, setting forth that she was about thirty years of age, and was of unsound mind; that she was entitled to an undivided share of certain real property in this state, and also to twenty shares of the capital stock of The Newburgh and Cochecton Turnpike Company.

The defendants were merchants in New-York, and failed. They then confessed a judgment to W. S. Smith, their brother in law for $25,000, under which judgment the furniture of R. M. Russell with other property was sold. The furniture was bid in by Smith and left in the possession of R. M. Russell.

Tbe complainant was the owner of about' 16 acres of land in the. city of New-York. ■ He employed the defendant Bleeker to Sell the same at auction., .'The-land was. sold by the , acre; By the terms of the sale, ten per cent, was to be paid ■immediately, ten per cent; upon the delivery of the dé.ed, and the residue, with interest, was to be secured by bond and a mortgage upon the premises.

In January, 1818, Dumond agreed with Sharts to exchange his farm in Hillsdale, supposed to contain 217 acres, for the farm of the latter, lying in Chatham, which was estimated at 150 acres. Sharts agreed to pay the complainant at the rate of $37,50 per acre for the difference in quantity between the two farms. Conveyances were accordingly executed, and the defendant paid the difference between 150 and 217 acres, at the rate agreed upon by the parties.

In this casa the defendants entered two. separate appeals to the court for the corection of errors, from the orders of this court of the 3rd of March, .1829, refusing permission to re-examine a witness and of the 4th of; August, in the same year, refusing them leave to amend their answer.

In April, 1818, J. Dearborn sold and conveyed to the defendant Budd, then being only 20 years of age, a lot of land in Homer, for the consideration of $600. At the same time Budd executed and delivered to Dearborn a bond and mortgage for the purchase money, one half thereof to be paid immediately, and the residue on the first of June, 1819, with interest.

<p>Where a bill was filed to settle the accounts of a joint adventure, more than twenty years after the whole subject' of the controversy had arisen, and where the justice of the claim had not been admitted during that time the staleness of the demand was considered a good reason for refusing any relief to the complainant.</p>

Richard Harison late of the city of New-York, deceased, being in 1827 seised in fee of a lot of land in the county of Jefferson, contracted .to sell the same to the defendant, who immediately entered into possession of the lot, and has continued in possession ever since. In 1825, Mr. Harison made and published his will, and thereby devised all his estate, real arid personal to his executors, T. L. Ogden, W. Johnson and B. Robinson, upon- the trusts therein mentioned.

The complainant gave a mortgage to H. Eckford to secure the payment of $1800, in fact loaned from The Life and Fire Insurance Company of New-York ; but which Eckford negotiated as agent and took the securities in his own name. • Six hundred dollars of this debt was paid previous to the failure of that company.

Frederick Davoue, who died in 1809, by his will made provision for the education of his younger children; and gave to his sons Frederick, Benjamin A. and James B., legacies of $5000 each, and to his son John B. a legacy of $5500, when they became of age respectively; and to his daughters Ann, Mary Egbert, and Harriet, legacies of $5000 each, when they became of age, or were married; all of which legacies were directed by the testator to be paid out of the bulk of his estate.

<p>Merchants can by agreement prescribe the mode of charging and crediting interest upon the several items in running accounts between them, provid. ed the mode adopted is not intended to be and is not in fact a cover for usury.</p> <p>In the absence of any agreement, a creditor receiving a partial payment of a debt has the right of applying it first to the satisfaction of the interest then due before it is applied to the discharge of any part of the principal.</p>

The complainant filed his bill in this cause in the nature of a bill of interpleader, to redeem a mortgage given by G. Underhill to D. Pelton, J. Bonnet and D. Rogers, junior, as executors of W. Henderson ; which mortgage was a lien on property which now belongs to the complainant. Pelton and Bonnet, two of the executors of Henderson, in 1823, assigned the mortgage to Secord. After their death, Rogers filed a bill against Secord to'set aside* the assignment..

The bill in this cause was filed to compel the specific performance of an agreement made by the Rev. J. Sellon, now deceased, with the complainant, relative to the sale or exchange of a small piece of land between Beekman and Ann streets in the 'city of New-York; of which land it was alleged that Sellon was the real owner, or the' cestui que1 trust, and that H. Walton was his trustee.

■ This was an application on the part of three of the devisees of Francis Atkinson, late of Kirbym.oorside, in the coun-: ty of York, in England, deceased, for a commission tó take the proof of the execution óf his will; for the purpose .of having it established and recorded as a will of certain real property situated within this state. By their petition it ap> peared that the testator was a citizen of the United States, but resided in England and died there.

■ Robert Lylburn, of the city of New-York, died in 1814, possessed of a considerable real and personal estate within the state of New-York. Held: that he must determine upon the express declaration of trust by old Norton who had the legal estate and valuable share in the new lease at the time it was purchased, and consequently the only person who had the right to declare the trust, and that there could be no pretence for an implied trust, by operation of law.

<p>Where upon a loan of money, a premium or profit beyond the legal rate of interest is.cither directly or indirectly’secured to the lender, the loan will be usurious, unless it is attended by some contingent circumstances which subject the money lent to evident hazard.</p> <p>A mere nominal contingency, attended by no real hazard of the principal of the money lent, will not divest the transaction of its usurious character.</p> <p>The ordinary risk of the death or insolvency of the borrower, is not such a hazard of the money lent as will authorize the lender to reserve a profit on the loan beyond the legal rate of interest.</p> <p>If there is a negotiation for a loan or a advance of money, and the borrower agrees to return the amount advanced at all events, it is a contract of . lending within. the meaning of the' statute against usury; and if a profit beyond the legal rate of interest is reserved or agreed to be paid, the contract is usurious.'</p> <p>Under the regulations of the chamber of commerce, the agent is entitled to two and a half per cent, for effecting a loan of money and becoming securi- - ty for the re-payment thereof; but he is not entitled to an additional commission for paying over the money to the principal or upon his orders. ' . ></p> <p>Where a loan is to be repaid by an investment in merchandize for the lender, the merchandize must be estimated at its actual costs in specie or other circulating medium which is legal tender at the place of payment, and not at its nominal costs in a depreciated of fictitious currency.</p>

This was an application, by Robinson’s solicitor, for a reference to a taxing officer to tax his costs, counsel fees and disbursments, as between solicitor and client. Robinson, the client, died pending an appeal to the court of errors, and administration of his estate was granted to the public administrator in the city of New-York.

This was an appeal from the second circuit on a decree made upon pleadings and proofs; and a question arose, under the last clause of the 91st rule of this court, as to the place the causé should occupy on the calendar. One party had considered the matter as arising at the time the decree was entered; the other had placed the cause upon the calendar as of the time when the replication was filed in the court below.

The defendants Inglee and wife brought a suit at law against the complainant and Rhodes and Balestier, who were formerly partners under the name or firm of J. Balestier & Co. on a note given by that firm to Mrs. Inglee before her marriage.

The complainant failed in 1798, and .assigned all his prop.erty to the defendants Lenox- and Taylor and to H. Stevenson, who has since died, iri. trust to pay certain debts due to the United States and to H. Stevenson, and to divide the surplus, or so much thereof as might be necessary, among such of the other creditors of the complainant as should come in Under the assignment- and release him from the payment of their- debts; and to reassign the residue of the property or…

<p>Upon a submission in this case by one of the taxing officers of certain questions in relation to costs,</p>

This was an application for an order requiring the recéivers to pay the costs of a suit at Jaw prosecuted in the name of the President, Directors and Company of the Bank of Niagara against the petitioners, and in which the plaintiffs were nonsuited at the trial.

This was a bill of interpleader filed against the defendants to compel them to litigate and settle their claims to $1000 left in the hands of the complainants, for which the following receipt was given: “Received from Peter M’Namara of the city of St. Johns, New-Brunswick, one thousand dollars, to .satisfy any legal claims that Mr. Archibald Gault of the said city may have against the said Peter M’Namara-.

This case came before the court on exceptions to the master’s report, on stating an account against the administratrix of the guardian of the complainant. The guardian had used monies belonging to the infant, and the master in stating the account made annual rests for the purpose of charging the guardian with interest on these monies.

In January, 1807, Samuel Beebe filed a bill in this court against Thomas Post, and the second of November thereafter obtained a decree against Post for $3290,98, together with his costs to be taxed. At the time that decree was, entered, Post was the owner of considerable real estate in the-city of New-York, which, on the 11th of November,. 1807, he . conveyed to-his mother in law, Elizabeth Morris.

' An attachment had been issued in this cause against .Parke for not appearing. He occupied a dwelling house and store at Whitehall, When the officer went to serve the subpoena he was absent from home, and there was no person at his dwelling house. The officer then went to his store and there served the subpoena upon his son. It was not denied by the defendant that the subpoena came to his knowledge.

<p>Where a defendant gave notice of his intention to appeal from the decision of a vice chancellor on an interlocutory motion, and that he should bring on the hearing of such appeal on the next motion day before the chancellor ; and the complainant’s counsel attended on that day to oppose the application, but no appeal was in fact entered, the defendant was charged with the costs of opposing.</p> <p>The chancellor has jurisdiction to award such costs, although the cause is not regularly before him by appeal.</p> <p>The defendant applied' to the vice chancellor of the first circuit to set aside an order taking the bill in this cause as confessed; which was denied with costs. The defendant’s solicitor then gave notice that he intended to appeal from that decision, and that he should bring on the hearing upon the appeal on the next motion day before the chancellor. The counsel for the complainant appeared on that day, but no appeal had in fact been entered. The only question was whether any and what costs the defendant was liable to pay.</p>

This was a bill of foreclosure. The defendant Lynch gave á mortgage upon a large trapt of land, part of which was under contracts for sale previous to the date of the mortgage. The purchasers at the date of the mortgage were in. possession and had paid considerable portions- of the purchase ■ money. They have since paid the residue to the mortgágor. Other parts of the lands were afterwards sold to various other persons who are made defendants in this suit.

This w;as a suit to foreclose a mortgage. Some of the ¡defendants were absentees, and one of whom was an infant.

The bill in this case was filed by certain judgment creditr ors of Kane and Smith, who had proceeded to execution against them without obtaining satisfaction of their debts. Kane had been convicted of forgery, and sentenced to imprisonment in the state prison. The principal object of the bill was to reach certain monies claimed by his wife, and an injunction had been obtained to prevent her from using the same for the support of herself and children.

This was an application on the part of the complainant to appoint a guardian for an infant defendant. The infant had neglected to appear, for twenty days after the time for appearingas prescribed in the 22d rule had expired; and a petition was thereupon presented to the court agreeably to the last section of the 144th rule, requesting that a particular person named in such petition should be appointed guardian.

An answer was put in' for all the defendants in this cause in October, 1827. By the caption it purported to be the joint and several answer of Ebenezer S. Beach and all the other defendants; and was signed by the solicitor of all the defendants; but through inadvertence it was not sworn to by Beach. The complainants filed a replication, treating it as the answer of all the defendants; and the testimony was taken in the cause, and the proofs regularly closed therein.

This was an application for the appointment of a receiver, to dispose of the effects and close up the concerns of a partnership, on a bill filed by one partner' against another. The application was resisted on the ground that. the partner who was in possession of the partnership books and effects, was willing to give security for the faithful application of the; effects in payment of the debts.

This was a motion' to dissolve the injunction, heretofore issued in this cause, restraining the defendant from collecting or selling, assigning and transferring certain debts, choses in action, goods and other property assigned to the complainant to indemnify him as endorser and security for the defendant, and' to pay off the debts for which the complainant had become responsible. ',

The defendant Watrous was in contempt for not answering ; and an attachment was issued against him, upon which .he could not be found by the officer. But having applied for his discharge under the insolvent act, to the recorder of NewYorlc, the complainant’s counsel opposed his discharge, and procured an order for his personal examination before the recorder.

This was an application for an order to permit the husbands of two parties in a partition suit to receive the shares of the. proceeds of the sale which belonged to their wives. The petition upon which the application was founded and which contained the consent of the wives to such an order, was acknowledged before a commissioner of deeds.

<p>A petition was presented in this case, under the provisions of the revised statutes, to rectify certain irregularities in the sale of real estate by an administratrix under a surrogate’s order, and to confirm the sale. (2 R. S. 110, § 61.) The petition set forth the sale, and stated that the petitioner had acquired title by divers mesne conveyances from the purchaser; that the heirs at law of the intestate had commenced an action of ejectment to recover the premises from the petitioner; and that he had recently discovered his title under the sale to be defective, because no discreet person had been appointed by the surrogate to join in the sale, as was required by the statute in force at the time the order for such sale was made. (1 R. L. 451, § 24.) The petitioner prayed for the usual order of reference under the statute; and also for an injunction to stay the proceedings at law in the mean time.</p> <p>The Chancellor decided that in that stage of the proceedings his authority was special, and was limited by the statute to the malting of an order of reference to the master to report as to the facts, and the names and residences of the persons entitled to the estate as heirs at law or devisees of the decedent, or as claiming under them. That until such preliminary examination and report had been made by the master> the court could not know who were the persons against whom the proceeding was instituted. That having no jurisdiction, either over the property for the recovery of which the suit at law was brought, or over the persons of the plaintiffs in that action, an injunction to stay their proceedings at law could not then be granted.</p> <p>After notice had been published, and had been served on the heirs at law of the intestate residing in this state, the latter appeared to show cause why the" sale and conveyance should not be confirmed. The chancellor not being prepared to decide the question at that time, the application was renewed, on the part of the petitioner, for an injunction or order to restrain the trial of the suit at law until the final decision of this matter.</p>

This was an application to dissolve an injunction, on the coming in of the answer. The facts appear in the opinion of the court.

<p>The bill in this cause was filed to foreclose a mortgage given by the defendants to the complainant, conditioned to pay $600 at the expiration of two years from the date, with interest semi-annually. At the time of filing the bill, and at the hearing, there was only $42 due for one year’s interest on the bond and mortgage; but the master reported that the mortgaged premises were so situated that they could not be sold in parcels, and that the defendant was in possession and was insolvent. The only question was whether the court was authorized to make any, and if any, what decree, on the bill taken as confessed, under these circumstances.</p>

The bill in this cause was filed before the vice chancellor of the first circuit, for a discovery of the consideration of two certain bills of exchange on which the complainant had been sued at law. In addition to the prayer for discovery, the bill contained a prayer for general relief. After the defendant had perfected his answer, a replication thereto was filed by the complainant. The defendant then moved for costs, as on a mere bill of discovery.

<p>An affidavit to set aside proceedings for irregularity, should he made either by the party or his solicitor. The affidavit of the counsel is not "sufficient, unless an excuse is shown for dispensing with the affidavit of the party or the solicitor.</p> <p>An affidavit may be sworn to before any proper officer, although he is counsel for one of the parties, or is a partner of the solicitor in the cause.</p> <p>The rule prohibiting the solicitor or attorney of a party from taking the affidavit is confined to the solicitor or attorney on record.</p> <p>The provision of the revised statutes prohibiting a master from acting as such in a cause in which he is counsel, does not extend to the mere taking of an affidavit.</p> <p>The breach of an injunction regularly issued is a contempt of court; and in a proceeding against a party for such contempt, the court will not look into the merits of the cause in which the injunction issued.</p> <p>The revised statutes have made it the duty of the court, in a proceeding by attachment to enforce the civil remedies or to protect the civil rights of parties, to impose a fine sufficient at least to indemnify the relator for the injury sustained by the contempt, and to satisfy his costs and expenses.</p>

This was an appeal from an order of the vice chancellor of the first circuit. On the I9th of May, a notice of the order to answer in forty days, was, served on the solicitor of the defendants. On the 29th of June he applied to the vice chancellor, under the 125th rule, and obtained an order giving the defendant 20 days further time to put in an answer; which was subsequently reduced to 15 days.

The complainants, being judgment creditors of'the defend--, ant Price, filed their bill before the-Vice, chancellor of the' first circuit to obtain satisfaction of'their'debt out of his eqüita: ble property. And the usual ^injunction was granted thereon, Price demurred to the' bill, which demurrer on argument was overruled. From -that decision he,áppealed to the chancel-' lor;-which appeal has pot yet been disposed of.

This was an application on the part of the complainant to set aside a master’s sale of the mortgaged premises, on a decree of foreclosure. The premises are situate in the county of Cataraugus, and the amount due on the mortgage was about $2300, exclusive of costs.

This was an application for ari attachment against the defondants for not delivering over to the receiver, appointed in this cause certain books and papers pursuant to the .order .of this court.

The complainants filed their bill in this cause as judgment creditors of the defendant to obtain satisfaction out of his property which could not be reached by execution at law. The defendant pleaded an affirmative plea in bar of the discovery and relief prayed for in the bill; upon which the complainant took issue. Orders to produce witnesses and to close the proofs were regularly entered, but the defendant produced no evidence to establish the truth of his plea.

This was an application, on the part of thé, solicitor of the defendant Green, for .a re-taxation of the costs of th.e complainant. On the taxation before the master, various objections weré made to particular ■ items in the bill, on. the grounid'that the services charged were useless or unnessary. As to many other items, it • was objected that the sevicés had never in fact been performed; and evidence of the actual performance qf .such services was required.

This cause was referred to the vice chancellor of the second circuit to hear and decide the same. He made a decree therein dismissing the complainant’s bill with costs. From that decree the complainant appealed to the chancellor.

Sherman, the defendant, is in possession of a lot of land, claiming title to the same under a decree of foreclosure upon a mortgage executed by W. Brady and wife, in 1813. At the time the bill was filed to foreclose that mortgage, Edward Douglass was a judgment creditor of Brady, but was not made a party to the suit.

This was an application to stay the proceedings on a decree of sale, upon the ground that the suit had abated by the «death of one of the owners of the premises. The facts are stated in the opinion of the court.

This cause came before the court on exceptions to the master’s report as to the insufficiency of the further answer of the defendant Wiswall; and also.upon a petition of the complainants for the production of certain, books and papers referred to in the answer and in the further answer.

■ This was an application on the part of the complainants for leave to dismiss their bill as against' William Chapman without costs. . ■

This was a petition for a special order for the appointment of a next friend for the infant grand children of J. Miller, deceased, who were legatees' named in his will; to enable. them to join with the adult legatees in a bill for the sale of certain, real estate ¡of the testator, to satisfy their legacies charged thereon.., The petition stated that .the testator, by his will, gave to Mary Frits and three other persons legacies of one hundred dollars each, and to the.…

The complainant in this cause filed her bill to recover dower in certain real estate of which her husband was seised during his life time. During her coverture, she, in conjunction with her husband, mortgaged the premises to B. Walker, which mortgage still remains unsatisfied in the hands of Walker’s executors and trustees, under whom the defendant is in possession.

The complainant filed his bill in this cause to obtain a divorce. ' The defendant put in her answer thereto, and a reference was made to a master to take proofs of the adultery charged in the complainant’s bill. On the coming in of the master’s report the usual decree was made dissolving the marriage contract between the parties; and prohibiting the defendant from marrying again during the life of the complainant.

This was an appeal from the decision of the vice chancellor of the first circuit. The bill was filed for the partition and sale of a house and lot in the city of New-York, which formerly belonged to the grand father of Mrs. Mott and of the complainants ; and also for an account of the rents and profits of their grand father’s estate. The,principal question in the cause arose upon the construction of the will of J. Hopper, the grand father.

• The bill in this cause was filed by the son and 'grantee of John Livingston deceased, to set aside the conveyance of a lot of land, on the ground of fraud.

In this case the master allowed an injunction to restrain proceedings in a suit at law, after judgment. The certificate on which the order for the injunction was obtained did not state that a judgment had been rendeied. The injunction was therefore issued without depositing the amount of the judgment and without filing a bond with sureties, as required by the statute. (2 R. S. 189, § 141.)

<p>A bill may be framed with a double aspect, where it is doubtful what relief the complainannt is entitled to on the facts of his case. 1</p> <p>In such case the relief prayed for may be in the' alternative; but it_must ; be consistent with the case made by the bill.</p> <p>Where the case made by the bill entitles the complainant to one of two kinds of relief, but not to both, the prayer should be in the disjunctive.</p> <p>So, if it be doubtful whether the facts of the case entitle him to the specific relief prayed for, or to relief in some other form, his prayer concluding for general relief should be in "the disjunctive.</p> <p>In such case, although the complainant should not be entitled to the relief specifically prayed for, he may, under the general prayer, obtain any other specific relief, consistent with the case made by the bill.</p> <p>But where the complainant prays for particular relief, and for other relief in addition thereto, he can have no relief inconsistent with such particular relief, although it should be founded upon the bill.</p> <p>The court of chancery has no original- jurisdiction to try the validity of wills of personal estate.</p> <p>The jurisdiction of the- court exists only in case of an appeal from the decision of the surrogate. . . "</p> <p>Where no appeal is made to "the court of chancery, the probate of the . will before the surrogate is final and conclusive, as to the personal estate.</p> <p>The court of" chancery has no jurisdiction to set aside a will of real estate, on the ground of the incompetency of the testator; and wherever the - ' complainant has perfect remedy at law, if the defendant raises the ob- • jection by demurrer to the bill, or insists upon it in his answer, the court will refuse- to sustain the suit.</p> <p>< The court, however, frequently decides upon the validity of a will.of real estate, where the question arises collaterally; but in those cases, if the - heir insists upon the invalidity of the will in his answer, an issue will be awarded to try' the question at- law.</p>

' Tnts was an application to dissolve an injunction, for want of equity appearing on the face of the bill. The parties were partners in the boot and shoe business. On the dissolution of the copartnership, it was agreed that the defendant should take all the stock and effects, and pay off all the debts due by - the firm, and indemnify the complainant against the same.

S. Sherwood, who died in the state of Connecticut, was indebted to the defendant Peck; who afterwards transferred the demand to Merritt, in security for a debt due to the latter. After the death of Sherwood, the complainant, as his executor, obtained letters testamentary on his estate, before the court of probate in that state. He subsequently obtained from the same court an order for the sale of the testator’s real estate, in Connecticut, for the payment of his debts.

<p>Where S. owned a farm in the county of Queens, and about ten acres in addition, and made an agreement with F. to exhange with him the ten acres for six acres adjacent to the farm, and possession was respectively taken by S. and F.; and before the conveyances were executed on this exchange, S. mortgaged his farm to G., and by mistake included in the mortgage the ten acres instead of the six acres, and the mortgage was foreclosed in chancery inl825, and the mortgaged premises ordered to be sold ; and S., who was alone interested in the surplus to be raised on the sale, employed E., an auctioneer, to sell the property to pay off the mortgage; and the property was exposed to sale and bid in for S.; and E. also attended the master’s sale. as the agent of S., at which sale a map, which had been made of the farm, including the six acres, was exhibited, as containing the property to be sold; and the property was sold with reference to the map, and for an amount much exceeding the mortgage and costs, and H. became the purchaser; and after the sale, S. obtained the legal title to the six acres ; and having received the surplus monies and becoming insolvent; upon a bill filed by H., praying for a decree to compel S. to convey to him the six acres; it was held, that S. having obtained the whole consideration money for the land, including the six acres, under circumstances which amounted to a fraud upon H., S. would be considered as a trustee for H., and would be decreed to convey to H. the six acres.</p>

<p>The assistant register, pursuant to the general rule of the court, presented a list or written statement of receivers, guardians and committees who had neglected to file their inventories and accounts, as required by the 154th rule. He suggested to the court- that in consequence of the proceedings, in the cases of special guardianships to sell infant’s estates; being sometimes filed and entered in a different office from that in which the order for the appointment of the guardian had been entered, it become difficult in such cases to ascertain whether the property had been sold, and whether the special guardian was in default.</p>

On the taxation of costs in this cause the complainants’ solicitor charged for two full copies of all the pleadings and proofs in the cause for the use of his counsel. This charge being objected to on the part of the defendants, the question was, by consent of the parties, submitted to the court

On an application to appoint a special guardian to sel the estate of infants, under the statute, it appeared that the infants had a general guardian appointed by the surrogate, but a different, person was recommended by him as the special guardian.

The bill was filed in this cause by the husband against his wife for a divorce on the ground of adultery. The defendant pleaded a decree of separation between the parties to which they had both consented, as a condonation of the offence and in bar of the suit. On argument of the plea the same was overruled on the merits. And notice of the order overruling the plea was duly served on the solicitor for the defendant.

After the usual order to produce witnesses had been entered in this cause, and notice thereof served, the parties entered into a stipulation to extend the time to examine the witnesses until the 1st of May, 1831. It was also stipulated, that if the complainants examined W. H. Seward as a witness, the defendanf should have 15 days, after such examination, to produce testimony on his part.

. ..T’mg was a judgment' -creditor’s bill, filed upon the return of an execution unsatisfied. After the coming ip of the answer of the defendants.

This cause was” heard on exceptions to the report of master Hoyt,- disallowing the claims of the petitioners against the estate of J'ohn Stafford in the hands of his committee. By the evidence before the master, it appeared that the father of John Stafford died in October, 1819, leaving him then about 19 years of age, and entitled to a very considerable estate.

The bill in this cause was filed to set aside two several judgments against John Stafford, entered up on bonds and warrants of attorney ; the one obtained while he was an infant, and the other after he had been found incapable of managing his estate by reason of habitual drunkenness. The facts are sufficiently stated in the opinion of the court, and in the preceding case of Kline and others v. L'Amoureux. (Vide ante, p. 419.)

<p>The sound construction of the 12th and 16th sections of the act of April, 1830, amending the revised statutes, is that the chancellor may issue a commission to prove a will, either of real or personal estate, in any case where, from the absence of the will or the non-residence of witnesses in this state, it cannot be proved before the surrogate.</p> <p>Such commission may be issued by the chancellor, although all the subscribing witnesses to the will are dead; but, in such a case, the proof taken will have no greater effect as evidence, than a will proved before a surrogate without producing any of the subscribing witnesses thereto.</p> <p>The chancellor alone can grant a commission to take proof of a will out of the state, and it cannot be issued by the direction of a vice chancellor. All the proceedings must be entered in the office of the register at Albany.</p>

An order was made in this cause for the appointment of a receiver of the estate and effects of A. S. Hallett, deceased, in the hands of, his executors ; and directing them to deliver over to the receiver, under oath, before master Depeyster, the said estate and effects, with all books of account, papers, writings', securities and evidences of debt, belonging, or.in any way appertaining to the same.

This was an application for an injunction. T he bill stated, among other things, that the father of Mrs. Gouveneur, one of the complainants, leased the Bank Coffee House, in the city of New-York, to the defendant Niblo, for the term of five years, from the first of May, 1827; that the lessee covenanted to pay the rent, arid all taxes and assessments whatsoever, ordinary and extraordinary,- imposed upon the premises during the term; that the lessor died in May, 1829, leaving…

' The bill in this cause was filed before the late vice chancellor of the' first circuit. The .complainants were stockholders of the Mercantile Insurance Company of New-York. By their bill they alleged, among other things, that the directors of the company were under the influence and control of Jacob Barker, who was largely indebted to the' com- , pany, and who represented himself to be insolvent.

The bill in this case was filed against the husband for a separation, on the alleged ground of. cruel treatment. The defendant demurred to the bill on áccount of its having been, exhibited by the wife in person, without a next friend, as réquired by the 163d rule of this court. This objection. was urged in opposition to an application to the late vice chancellor of the first circuit for an allowance to the wife by way of alimony.

This was an application, on the part of the defendant H. Rogers, to set aside the execution issued in this suit for irregularity, or to stay the proceedings thereon; and for a relaxation of the costs. Both parties were dissatisfied with the taxation, and a conditional arrangement was entered into to bring the several questions before the court. This arrangement however was not carried into effect.

This was an appeal from the decision of the vice chancellor of the first circuit. The complainant was the only executrix of Charles White deceased who had obtained probate of the will ; and the bill was filed by her to reach certain funds, the proceeds of his estate, which the complainant claimed on account of a debt alleged to 'be due to her from the decedent.

This was an appeal by Charles Lydia White from an order of the vice chancellor of the first circuit, directing certain surplus monies paid to the clerk of the late equity court in that circuit, to be paid to the legatees of Charles White, deceased. The money in court arose from the sale of certain real estate of C. White, under a mortgage foreclosure against his heirs and devisees.

This case is reported in I Hopkins’s R. 143, and in 8 Cow-en’s R. 386. After the decision of the court of errors on the appeal of the defendants, testimony was taken in the cause, and a great number of exhibits were put in and proved before the examiner.

James Donatianus Le Ray Db Chaumont, being possessed of a very large estate, consisting principally of wild lands in the states of New-York and Pennsylvania, and being very largely indebted and insolvent, in December, 1823, conveyed all his property, in the United States and elsewhere, to the defendant, Vincent Le Ray De Chaumont; in trust, in the first place, to pay certain preferred creditors, and afterwards to distribute the residue rateably between such of his general…

This was an application to punish the complainant as for a contempt, committed by him in the master’s office ; and also to obtain a special order to protect the rights of the defendant in future. Both parties were directed to deposit certain books, in the. possession, with a master; with liberty the adverse parties to inspect and take extracts from such parts thereof as related to partnership transactions.

This cause was heard on bill and answer. The facts, as admitted in the answer of the defendant, were as follows : In December, 1827, the complainant executed a note to the defendant with M’Cotter & Grant, as their surety, for $362,50, payable in 90 days. When the note fell due, M. ■& G. represented to the defendant that it was inconvenient for them to pay the note at that time, and requested him to wait 60 or 90 days longer.

<p>By the common law of this state, the court of chancery had no jurisdiction to decree a separation between a husband and wife, for cruel treatment, or on account of a mere canonical disability.</p> <p>A ¡marriage merely voidable is valid for all civil purposes Until its nullity has been pronounced by the proper tribunal; but by the common law the sen. teUce of nullity, When pronounced, renders the marriage void from the be. ginning.</p> <p>That part of the common law of England which renders a marriage contract absolutely void in certain cases, forms a part of the law of this state; and may be enforced by the appropriate tribunals independent of any statutory provisions.</p> <p>The cruelty which entitles the injured party to a decree df Separation, is that kind of conduct which endangers the life or health of the complainant, and renders cohabitation unsafe.</p> <p>Where a right is claimed as existing by the common law, which is incapable of enjoyment except by the direct interposition of a judicial tribunal to give the remedy, if no tribunal has been organized for that purpose by the law making power we may fairly presume that no such right exists. But if the right is expressly declared by the legislative power without creating or appointing any particular tribunal to administer the remedy the power must be exercised by some of the existing tribunals of the country.</p> <p>The 12th section of the act of March, 1824, authorizing the court of chancery to decree a separation from bed and board, on the complaint of the husband, was not repealed in the recent revision of the laws.</p>

The bill in this case was filed to restrain the defendant Le Roy from proceeding at law to recover a draft drawn by I. Field on the defendant Smyth, and endorsed by the complainants. The draft was transferred to Le Roy in security for an antecedent debt of Field ; and for which Smyth was also liable.

In February, 1817, Philip Jacobs, aged about 75 years, married Elizabeth Brown, then an infant under the age of twenty one.

C. P. Ingalls, in behalf of the general guardian of the infants, presented a petition under the 86th section of the title of the revised statutes, relative to the partition of lands, (2 R. S. 330,) praying that the guardian might be permitted to sell the share of the infants in the premises to the adult owners of the other shares. The premises consisted of a farm of about 180 acres. .

The bill in this cause was filed by judgment creditors ter reach the equitable assets of the defendant, after an execution at law issued against him had been returned unsatisfied. The defendant, in his answer, admitted the rights of the complainants, and that he possessed equitable assets ; but allege éá that he had other judgment creditors whose executions were unsatisfied. And he insisted that they were entitled to a share of his property.

The City Bank having been robbed of a large sum of money, offered a reward of $10,000 for the recovery of the same, and a proportionate sum for any part thereof. The notice in which the reward was offered stated the several kinds of money and bank notes stolen, and about the amount of each, in round numbers. The aggregate of the amounts thus stated was a little less than $225,000, the real amount of the loss not having been then ascertained by the officers of the bank.

This was an appeal from a decretal order of the late vice chancellor of the second circuit. The defendants plead the statute of limitations to the whole bill, and at the same time put in an answer denying the whole equity thereof.

The defendant appealed from an interlocutory decision of a vice chancellor, refusing to modify an injunction. The chancellor reversed that decision, and modified the injunction as prayed for on the original application to the vice chancellor, and ordered the complainants to pay the costs of the appeal; no one appearing on the hearing of the appeal, in their behalf, to oppose the defendant’s application.

This was an appeal from a decision of the vice chancellor of the first circuit. In May, 1831, the complainants gave to the defendants two negotiable promissory notes, for the sum of about $1500 each, payable in six months, without interest. About the same time the defendants became indebted to the complainants, on an acceptance for $4000, payable on the 13th of June. A few days before this acceptance became due, the defendants became insolvent, and stopped payment.

John Mowatt, jun. by his will, made in 1820, devised a part of his real estate to his wife, during her widowhood ; and after making certain pecuniary and specific bequests and legacies, he devised all the residue of his estate to his three sons, Charles Mowatt, James Mowatt, and John E. Mowatt, share and share alike.

The defendant, Story, commenced a suit at law against J. D. Brown, G. W. Brown and J. Brown, to recover a debt alleged to be due from them to him. The Browns then filed a bill in this court against Story for an account in relation to the same, and other matters, and obtained an injunction to restrain the proceedings in thé suit at'Iaw.

This was an application on the part of the committee of the person and estate of a lunatic for permission to sell her real estate.

This cause came before the court on a demurrer to a bill of discovery. The complainant alleged that he had been president of the Franklin Bank, previous to its failure. That in December, 1826, he was induced to become such president, by the solicitations of some of the directors, and other persons interested in the institution.

The Niagara Insurance Company was dissolved by an order of this court, under the statute, on the petition of the directors. The trustees, appointed on such dissolution, presented a petition to the chancellor, asking permission to become petitioning creditors of Patrick Sherryd, an insolvent debtor, to enable him to obtain a discharge from his debts.

<p>Where the complainant has actually removed from the state with his family, and changed his residence, the defendant is entitled to security for costs, although there is a probability that the complainant may return at some future day.</p>

This was a case agreed upon between the parties; and the only questions submitted to the court, were as to the mode of computing interest on a debt acknowledged to be due from the defendant, who resides in England, and as to the costs of a former suit.

The bill in this case was filed by a bond creditor of Dan-lei Cortelyou, deceased, against his devisees, to obtain satisfaction of the debt due to the complainant. A house and ten acres of land were devised to the defendant, Martha Cortelyou, who previously held a mortgage upon the same premises, to secure a debt from the testator.

This was an application to discharge a ne exeat. The complainant is a resident at the Havanna; and the defendant resides at Carthagena, and is a citizen of the Colombian government. In April, 1821, the defendant being in New-York, obtained his discharge under the act for the relief of debtors, with respect to the imprisonment of their persons.

These were cross suits, brought by the husband and wife ¡against each other, both claiming a dissolution of the marriage, on the ground of adultery. In the first suit, the wife put in an answer, without oath, denying the adultery charged against her in the bill, and making recriminatory allegations <of adultery against her husband.