Volume 2 — Sandford's Chancery Reports

The bill in this cause was filed to foreclose a mortgage of $22,000, dated August 24, 1838, executed by Waring to the complainants, on lands in Brooklyn. The defence was, that $1000 was exacted from W., for the forbearance of the debt, on executing the mortgage, and that it was therefore usurious.

The defendant in 1824, being seized of lot No. 37 in Galen, Wayne county, then wild and uncultivated, contracted to sell it to Royal Torrey, who thereupon entered into the possession of the lot, built a house and made other improvements. Torrey having paid but little towards the purchase money, and that irregularly, the defendant in 1834, executed a contract for the sale of the lot to one Mallory, who took possession.

The bill was filed by the executor and executrix of Ebenezer A. Hobby. It set forth that Harriet Hobby, the mother of Ebenezer, in 1822 bought a piece of land of one Hubbard, and a few days after, mortgaged the same to S. C. Barker. In 1827, she was sued on the bond, and her son, at her request, advanced the amount of the bond and mortgage.

The bill in this cause was filed to foreclose a mortgage for $2900, executed by Edmund and William Phillips to the complainant, on the first day of September, 1840. The defence set up by the mortgagors was that the mortgage was usurious. They filed a cross-bill to obtain a discovery of the facts alleged in their answer, but the answer of the mortgagee denied the allegations.

The bill in this cause Was filed to have the titles of the respective complainants in lands near the city of Hudson, declared and established; and to restrain certain actions of ejectment brought by the defendants for their recovery, The facts are fully stated in the opinion of the court,

The bill was filed by Edward Boisgerard against John Delafield, President of The New York Banking Company, and other defendants. It stated that the New York Banking Company •was an association formed in November, 1838, under the provisions of the act to authorize the business of banking, passed April 13th, 1838.

The bill in this cause was filed to restrain the sale of three lots in Brooklyn, which were advertised by the defendant Cotheal, under the powers of sale contained in three several mortgages executed thereon by John Webster and Lydia his wife. It appeared that the wife of Webster was seised of the lots in fee, that she died intestate and without issue on the 24th of May, 1832, and that the complainants are her heirs at law.

<p>By a matriage Contract executed in France by parties domiciled there, on the eve of their marriage, the wife under the provisions of the French law, put one-third of her fortune into community, and excluded the residue therefrom, which residua was to belong to her and be re-taken by her. The parties removed to New York, and the husband died there twenty years afterwards. He had taken and used in his business, the whole residue of his wife’s property, as well as that of the community. At his death, -he was in equity seised of and entitled to real estate in New York.</p> <p>On a bill filed by his widow, claiming that the marriage settlement operated as a mortgage on his whole estate, and that she was entitled to priority of payment of all her demands arising under the settlement,</p> <p>Held, 1. That according to the laws of France, if the parties had remained there, she would have had no preference over Other creditors of the husband in respect of his movables, nor any lien by way of privilege over his immovables. She would have had a mortgage upon his immovables.</p> <p>2. That although the courts here, construing the settlement according to the lex loci contrdctus, will give to her the same rights as a creditor, that the Erench law would confer; they cannot and ought not tb yield to her over real estate situated here, a lien or priority unknown and repugnant to the laws and regulations of the country rei sitce.</p> <p>. 3. Creditors here are entitled to rely upon those laws for the administration of their debtor’s estates.</p> <p>4. The French Civil Code refuses to contracts made in a foreign country, the fbrtie of a mortgage in France ; and international comity does not require us to pursue a different course.</p> <p>5. That therefore the complainant, whatever Was the extent of her rights as a creditor by reason of the contract of marriage, had no lien upon her husband’s estate, nor priority over his other Creditors.</p>

The bill in this cause was filed by the sole acting executor of Nathaniel Smith, late of Flushing, deceased, for a construction of his last will and testament, and for directions as to the disposal of the residue of his estate. The will bore date the 22d of May, 1333, and the testator died in 1835.

The bill was filed by Henry Didier as surviving partner of the firm of Didier & D’Arcy of Baltimore in Maryland, against James Davison as survivor of the firm of Davison & Hill. It set forth a large indebtedness by the latter firm to D. & D. arising upon bills of exchange and a joint shipping adventure in 1815 and 1816. D. & H. transacted business in the island of Hayti, and also in Baltimore where Hill lived. Davison resided in Hayti.

This was an original bill in the nature of a bill of review, filed on the 4th of June, 1842, to obtain relief against a decree made in a suit before the chancellor, in which the defendant Loomis was complainant, and Peter Stuyvesant and others were defendants. A part of the facts material to a proper understanding of those points of the opinion which were deemed worthy of being reported, are to be found in the decision. The other material facts are as follows.

The case came before the court on an original bill filed by John Craig to foreclose a mortgage executed to him by Hugh Graham and wife, and upon a cross bill exhibited by Tappin, a subsequent mortgagee of the same premises. Craig’s mortgage was dated May 1, 1839, and was conditioned for the payment of $18,000 in five years with interest half yearly, according to Graham’s bond of the same date.

The bill in this cause was filed by the widow of William Tolley, late of Athens, in the county of Greene, and the suit was heard on pleadings and proofs. W. Tolley by his last will and testament left two-thirds of his property to his son Frederick W. Tolley, and one-third to his daughter Altenah S., who became the wife of Samuel Wescott; subject to a provision for his wife which was in these words : “ First.

This was a bill in the nature of a bill for the specific performance of an agreement. The facts, which were material to the point reported, sufficiently appear in the judgment of the court.

This was a bill to foreclose a mortgage executed by John PHaff to the complainant to secure his bond for $1000. The securities were dated May IT, were executed on the 28th of September, and were recorded November 15, 1841. The mortgage was expressed to be made as collateral security to one of $4000 executed by Haff to the complainant on a tract of land in Bergen county, New Jersey.

This case came before the court on the demurrer of the defendant, Oliver Lee, to the bill of complaint for want of eouitw and for multifariousness. The latter ground only is deemed of sufficient interest to be reported; and the residue of the case and the principal part of the opinion delivered, are therefore omitted.

In 1826, the complainants, then known as The Phoenix Fire Insurance Company, filed their bill in this court, to foreclose a large mortgage executed to them by Charles Mowatt on an undivided third of the real estate of his father John Mowatt, Junior, which he claimed by devise. This suit abated by the death of ene of the defendants, and in February, 1832, the company filed a bill of revivor and supplement Amongst the new parties then introduced, was James Mowatt.

The bill was filed on the 19th day of September, 1835, by Matthew Kelly and James Frazier as assignees of James Beacham of the city of Baltimore, against the executors of Henry Eckford, formerly of the city of New York, deceased, for an account of certain copartnership dealings between Eckford and Beacham.

This was a bill exhibited by William Y. Miller, the executor of Mrs. Elizabeth P. Hornbeck of Wallkill in the county of Orange, deceased, to obtain a construction of her last will and testament, and the direction of the court as to the disposal of her estate. The will was dated July 18,1842, and she died on the eleventh day of March ensuing.

This was a judgment creditor’s suit, as against Eli Strong, and it sought to avoid as fraudulent, a conveyance of his farm in Orwell, Oswego County, made by him to his son William M. on the 9th of February, 1838. At that time Eli S. stood as the accommodation indorser of a mercantile firm, for about $600 on notes then running, upon which the complainant’s judgments were afterwards recovered.

The complainant sold to the defendant, two hundred shares of the stock of an incorporated rail road company, at a stipulated price, deliverable at a future day, and to secure the performance of the contract, each party deposited 100 shares of similar stock with Dykers & Alstyne, brokers. When the contract matured, the defendant declared that he would not receive the stock bargained for, and no tender or offer of it was made to him.

The complainant, then Elizabeth A. Cooper, was married to John Galliano, on the 23d day of August, 1838, at which time she was the owner in fee of the house and lot No. 185 Broomestreet, in the city of New York.

This was a bill to forclose a mortgage executed by A. Watt to the complainant. It appeared that after the mortgage was given, A. Watt and his wife joined in the execution of a deed, by which they conveyed the mortgaged premises in due form to R. P. Dana. Subsequent to this period and before the bill was filed, Dana re-conveyed the premises to A. Watt. Mrs. Watt put in an answer, claiming her dower right in the whole premises, unaffected by the mortgage.

The bill was filed by Holford, Brancker & Co., merchants in New York, to recover of the receiver of the Commercial Bank, the price of certain bills of exchange for 8000/. sterling, drawn by themselves on Holford & Co., bankers in- London, in March, 1841. The bank gave a certificate of deposit for the price of the bills, including 9|- per cent, for the premium of exchange, and one per cent, for commission.

The bill was filed to reach the equitable interests and things in action of the defendant, against whose property, as the bill alleged, an execution at law had been returned unsatisfied. The charge in the bill was in the usual form; and the answer denied that any such execution had been returned or filed. The proof showed that the sheriff made a return on the writ in due form and mailed it to the clerk of the Supreme Court at Albany to be filed.

The case made by the pleadings and testimony was as follows. On the 18th of May, 1839, S. Crowell being indebted to A. L. Jordan, gave to him two promissory notes for $300 each, payable in six and twelve months, signed by E. S. Townsend as his surety. Soon after the notes were delivered, Crowell confessed a judgment to Townsend for $3000 to secure his liability on this and other notes, amongst which was one of $500 to the Wayne County Bank.

The bill in this case was filed on the 10th day of February, 1841, by Leonardo S. Suarez, as administrator with the will annexed of Juana Mendez, of the city of Cadiz in the kingdom of Spain, to obtain payment of $16,295 77, which had been deposited in the treasury of the city of New York by the public administrator, and which arose from the personal assets of Juan A. Brid.

<p>Where a creditor of N. holds as his 'security, for a specific debt, a mortgage of N. against H., which by an agreement between themselves, N. is bound to discharge; and N. makes a payment to his creditor on the specific debt; such.payment enures to the benefit of H. in respect of the mortgage, and the creditor cannot retain H.’s mortgage by subsequently making an application of the payment on other debts due to him from N.</p> <p>By force of the agreement, the payment made by N. operates as a discharge of so much of H.’s mortgage.</p> <p>N. absconded, and the creditor obtained some security from him, though far less than his other debts. H. is not entitled to participate in the benefit of such security to reduce his mortgage.</p>

<p>A right as a corporator in a religions society, is obtained by stated attendance oil divine worship therein, and contributing to its support by renting a pew,' or by some other mode usual in the congregation.</p> <p>Such a right cannot be derived by descent from the founders of the society, or from the former contributors to, or worshippers in the same.</p> <p>The association between a religious incorporation and its corporators, is voluntary on the part of the latter; and is dissolved by their withdrawing from attendance on its worship, omitting to contribute to its support, and uniting in the establishment of another like incorporation.</p> <p>Two Lutheran churches or religious societies, each owning temporalities, though of unequal value, entered into an agreement for a union, to remain forever as one body, congregation or society, by a new name expressing such union; and by which their estates were to be consolidated for the common use and benefit, and the charge of their estates and concerns was intrusted to officers to be chosen out of the united congregation; with other provisions showing an entire union and consolidation into one body; and the agreement also provided that out of the property, the ancient church of one of the "constituent societies should be rebuilt on the site where its ruins stood, for the use of the united congregation as soon as circumstances would admit.</p> <p>The united body was immediately afterwards incorporated by the name agreed upon, and after twenty years, the corporation sold the site of the ancient church, and never rebuilt it.</p> <p>In a suit brought by persons claiming to be corporators in the united church, and to be in part the representatives of the ancient congregation which owned such site, to compel the corporation to build and endow a church in pursuance of the terms of the union:</p> <p>Held, 1. That all the property of the two churches became vested in the incorporation.</p> <p>9. That the management and control of the same vested in the trustees as a distinct body, and to the exclusion of the elders and deacons.</p> <p>9. That the same vested in the corporation as an individual body or unit, in trust for the maintenance of the faith, doctrines and discipline of the Evangelical Lutheran Church ; and not for the benefit of the two former congregations connected together for certain purposes. The existence of both was merged in the union.</p> <p>4. lío member of either of the former churches had any greater, better or different right in the incorporated society, than the members of the other. The rights of all were equal and upon a common footing. And if the ancient site of the one had been built upon, the rights of the members of both in such edifice would have been equal in all respects.</p> <p>5. That the agreement for the union did not constitute a trust or a covenant, for the rebuilding of such edifice on the ancient site, or elsewhere. It was merely an expressed intention, which the corporation and subsequent corporators might execute or waive, in their discretion.</p> <p>6. If there had been a trust, the court from the lapse of time and the circumstances, would presume that the sale of the site and other appropriation of the fund, were by the direction and with the consent of those interested.</p> <p>The trustees of an incorporated religious society can alone bind the corporation. The action of the vestry has no such force. And where the act relied upon was adopted at a meeting of the conference or council, which consisted of the minister, elders, deacons and trustees, convened in mass; the corporation was not bound, although a majority of the trustees were present.</p> <p>Where the exercise of corporate acts is vested in a select body, an act done by the persons composing that body, in a mass meeting of all the corporators, or in union or amalgamated with other like bodies, parts of the corporation, is not a valid corporate act.</p> <p>B. having purchased a church edifice at a public sale, in his own behalf, conveyed it to an incorporated Lutheran Church, (which had another place of worship,) for a consideration equal to three-fourths of its value, on certain express conditions, of which one was that divine service therein should be in the English language. After a trial by the grantees in the maintenance of such service, which did not prosper, B. released them from all the conditions, except the one requiring it to he used as a Lutheran Church. Held,</p> <p>1. That on the execution of the deed there were no cestuis que trust in existence or in expectancy; but that it created a charitable use, the fund for which flowed from B. and the corporation, as donors, and the latter were the almoners of the charity.</p> <p>2. That persons coming to worship in the edifice, acquired no rights, beyond the period for which they rented pews from time to time.</p> <p>3. That the conditions in the deed were vested in B. alone, and his release was competent to extinguish them.</p> <p>4. That joint contributors to a charity, vesting the fund in one of their number, may revoke the charity or alter its terms and conditions.</p> <p>An offer to sell land at a fixed price, without more, is an offer to sell for cash.</p> <p>The acceptance of such an offer, to bind the seller, must be simple, and without the addition of any new terms or qualifications.</p> <p>Since the revised statutes, contracts for the sale of lands resting upon mutual promises, must be subscribed by both the buyer and the seller, to be obligatory upon the latter.</p> <p>Aliens may be corporators and trustees in a religious corporation.</p> <p>It is a fatal objection to a suit that a part of the complainants do not show any title to.participate with the others, in the relief sought.</p>

The bill was filed to foreclose a mortgage executed by the defendant, to the intestate, Edward B. Rawson, on the 25th of September, 1837, accompanied by a bond of the same date. The defence was a set-off claimed against the intestate and his estate, under the circumstances stated in the decision.

<p>The remedy provided by the thirty-sixth section of the article of the revised statutes relative to “ Proceedings against Corporations in Equity,” is limited to creditors who have proceeded to an execution against property, without effect.</p> <p>The thirty-ninth and fortieth sections apply to monied incorporations only; and as to those, give a remedy to the attorney general, or to any creditor or any stockholder, where the corporation is insolvent, or has violated its charter or any law binding upon it.</p> <p>The thirty-sixth section is applicable to all corporations, except the religious, library and school institutions enumerated at the close of the article.</p> <p>The forty-second section, and all the subsequent sections in the same article, apply to proceedings instituted under section thirty-six, as well as to those instituted under sections thirty-nine and forty.</p> <p>Hence, a receiver of a rail road company, appointed in a suit commenced against it under the thirty-sixth section, is clothed with all the powers and authority conferred npon receivers by the forty-second section and the several other sections which it refers to and adopts.</p> <p>A receiver under section thirty-six, has authority to sue for and collect all debts and demands belonging to the corporation.</p> <p>Under the forty-second section, such a receiver may recover sums remaining due upon any shares of stock subscribed in the corporation.</p> <p>This remedy is given by the statute; it may be exercised although no call has ever been made for the sums remaining unpaid on the shares; it is concurrent, and may be enforced at law or in equity ; and a suit in equity for that purpose may be maintained against each stockholder severally.</p> <p>Semi, that in respect of contribution, a suit in equity may be maintained against all the delinquent shareholders jointly.</p> <p>A receiver prosecuting a shareholder for the unpaid balance of his stock, is not restricted in his recovery to the amount of the debt due to the creditor of the corporation who procured his appointment. He is the officer of the court, acting for all the creditors and stockholders.</p> <p>Nor is it an answer to his suit, that there are other shareholders who are more delinquent than the defendant in the suit; nor that such creditor is himself a delinquent stockholder. If the receiver acts oppressively in enforcing the payments due on the stock, the court will interfere either on a cross bill bringing in the favored parties, or on a summary application.</p> <p>A shareholder holding one hundred shares of stock, on which more than half of the nominal amount had been paid, by an arrangement with the directors, received full scrip for sixty shares, and soon after relinquished the remainder to the corporation. On the corporation subsequently passing into the hands of a receiver, it was held, that the creditors, and the other stockholders who did not assent, were not affected by that arrangement, and that such shareholder must make the whole hundred shares full stock, if it were necessary in order to discharge the corporate liabilities.</p> <p>An order for a receiver, when his appointment is completed, vests in him, in equity, all the property and effects subject to the order, without any assignment.</p> <p>In respect of the receiver’s exercise of his powers in courts of law, an assignment to him by the party is proper, and as to the legal title to real estate, it is indispensable. But in equity, although usual in our practice, it is unimportant; and in England it is not practised.</p> <p>An assignment, purporting to be executed by a corporation through its president and under its corporate seal, was produced, and the president’s signature proved, and there appeared to be a seal attached ; but there was no evidence whether the seal was that of the president or of the corporation.</p> <p>Held, that the court could not decide that point upon inspection, and that the execution of the instrument was not proved,</p>

<p>The allowance of interest as an incident to a debt, is founded on the agreement of the parties: and such agreement may be express or implied.</p> <p>It is implied, where there is a contract to pay the principal at a specific time, and the debtor makes default; interest being chargeable from that time, upon the ground of the default.</p> <p>Where such payment is to be made on the conveyance of land at a stipulated period, and the land is not then conveyed, the purchaser is not in default if he omits to pay the price, and no interest is recoverable against him until he is put in default by the tender of a deed.</p> <p>The general rule in England is, that from the time fixed for the completion of a contract for the sale and conveyance of land, the purchaser is entitled to the profits of the estate, and will be compelled to pay interest upon the price. And the agreement to pay interest, is implied from the purchaser’s receiving, or being entitled to receive, the rents and profits.</p> <p>This rule is modified here, by the difference in the situation and productiveness of real estate, and the higher rate of interest; and in the case of vacant or unproductive property, a contract to pay interest will not be implied, when the purchaser is prevented from obtaining his title through the default or negligence of the vendor. The entry into possession of such propelty ought not to affect the principle.</p> <p>And where the purchaser does not go into possession, under or in pursuance of the contract of sale, and the delay in its completion is imputable to the seller, he Will not be charged with interest on the purchase money, in the absence of an express agreement to pay interest.</p> <p>S, & M. being joint owners in possession of several lots, under a lease which contained a covenant for a sale and conveyance to the lessees at their option at a fixed price, tendered the price to the lessor’s heirs and representatives, aud de. manded the title; but the latter, by reason of infancy and other causes, were unable for a long period to convey the same. S. then signed an agreement by which be covenanted to execute a perfect conveyance to M, of all his right and interest in one of the lots, (which was vacant,) on the 1st of May, 1830, in consideration of a large price to be then paid or secured by M.; and when the legal title was obtained, he would give any further assurance, &c. S. made no effort to complete, or to convey his own interest toM. at or before the day fixed ; and early in 1831, he repudiated the agreement, denied its obligation, and disclaimed M. as being the purchaser. M. nevertheless proceeded, and erected a valuable store on, the lot, the income from which exceeded the whole cost of both store and lot; and at the same time he made similar erections on the joint account, on the other lots of himself and S. In 1836, S. filed a bill, amongst other things, calling on M. to complete the purchase of the lot, and a conveyance was finally in readiness for M. in 1841.</p> <p>Held, that M. did not enter into possession under his contract with S., and the character of his previous possession was not changed. That S. was not entitled to interest on the stipulated price from May 1, 1830, nor until he made or offered a full conveyance of his right and title in the lot; but he was entitled to the value of the rents in the intervening period as the same would have been derived from the lot, in the condition in which it was when he contracted to sell to M.</p> <p>Commission, is not limited to a compensation or per centage on the receipt, payment, or transmission of money, or its equivalent. 1 It is an allowance to a factor, broker, agent, or other person who manages the affairs of others, for his services therein ; and is usually ascertained by a per centage on the value of the property sold or amount of the business done.</p> <p>Under a decree for an account of joint operations in real estate, the master was directed to allow no commissions. Held, that this excluded an allowance for superintendence and management of the joint property.</p> <p>The agreement under which the account was directed, was to make advances for a purchase. The account embraced those, with large disbursements also, and the decree restricted interest on all advances to six percent. Held, that the disbursements were not included in the restriction.</p>

The bill was filed by the complainants in behalf of themselves and all other creditors of Amanda A. Engel, formerly Mrs. A. A. Mott, against her with her husband, Adolph J. Engel, and James Donaldson and John Cook, who were respectively trustees of her separate estate ; to charge upon the latter, certain debts incurred for supplies furnished to a millinery establishment which she conducted in the city of New York. Messrs.

The bill in this cause was filed to foreclose a mortgage executed by Jerome Shafer to the complainant, upon an equal undivided third part of a farm of one hundred and sixty-seven acres, situate in the town of Cobleskill in the county of Schoharie, dated May 27th, 1839. The defendants, besides Shafer, were the trustees named in a deed of the whole farm, executed by Peter Shafer and Angelica his wife, on the 16th day of February, 1829.

This was á suit fot the specific performance of an agreement, dated December 1st, 1842; by which the defendant contracted to exchange a house atid lot in Columbia county, for lands of the complainant situated in the State of Michigan.

The complainants in October, 1840, recovered a judgment in the Supreme Court, against The Rossie Lead Mining Company, a corporation created by an act of the legislature in 1837, for powder sold to the company at various dates in the year 1839. Upon this judgment an execution was issued to the county of St. Lawrence, which was returned unsatisfied.

These were original and cross suits, and were heard on pleadings and proofs. The facts as ascertained by the decision, were these. Costigan was the superintendent and principal outdoor agent of the Mohawk and Hudson Rail Road Company.

The bill was filed by Leonard Lee on the 12th day of April. 1844, against The Highland Bank, and John W. Brown, Esq. as administrator of Gilbert Ogden Fowler, late of the village of Newburgh, deceased; praying to have a note delivered up and cancelled. The note was for $1500, dated December 27th, 1843, and payable the first of May ensuing ; was made by the complainant, payable to Mr. Fowler, indorsed by him, and was discounted by the Highland Bank, on the day of its date.

This was a suit brought by a judgment and execution creditor of the defendants. The judgment was recovered in December, 1842, and this suit was commenced in December, 1843. On the 2d of March, 1843, Cooney presented his petition for a discharge from his debts under the late bankrupt act, and he was discharged accordingly on the 30th of January, 1844.

This was a bill filed April 1st, 1843, to foreclose a mortgage executed by O. and P. Boutwell to John Gary, Jun., for $1600 on the first day of June, 1835; conveying a tract of ground in the fourth ward of the city of Troy, which was subsequently laid out into twelve city lots.

This was a bill to foreclose a mortgage on a house and lot in the city of New York, executed by Joannah Walker to Isaac Halsey, together with her bond, to secure the sum of $1700, dated November 24th, 1832. The bond and mortgage were assigned by Halsey to the complainant on the 20th of May, 1833, after three hundred dollars of the principal had been paid and indorsed. Notice of the assignment was at once given to Mrs. Walker.

On the 12th day of October, 1836, Joseph L. Joseph and wife conveyed to John L. Graham in fee, two equal undivided third parts of a farm in Southport, Chemung county, containing about four hundred acres.

On the 15th of October, 1835, the executors of John Taylor, sold at private sale and conveyed to the complainants several lots of land in the city of New York, of which the testator died seised. The executors settled with the residuary devisees and legatees, all of whom who were competent to act for themselves, acquiesced in the sale, and ratified it by receiving portions of the proceeds.

The bill was filed by the executors of Eliza McCarthy, to-foreclose a mortgage for $19,250, executed to her by Joshua Walker, on the 14th day of December, 1836. The premises mortgaged, are a lot with the buildings thereon, known as No. 352, in Broadway, in the city of New York, forming a part of the Carlton House. The lot was formerly the residence of Dennis McCarthy, who died intestate, seised of the same on the 29th of July, 1835.

The bill was filed on the 23d day of August, 1842, against Monmouth B. Hart, on the return of an execution unsatisfied; to reach his equitable interests and things in action. . In his answer the defendant set up the execution by him of a general assignment to James H. Hart, for the benefit of his creditors, dated May 10, 1842, and delivered June 10, 1842.

This was a suit to foreclose a mortgage, executed to secure a bond for $6000, by Jacob Perkins, Ezra Town and Edward Clark, to Lucian Curtis and his two partners, Beam and Jones; dated August 21st, 1843, and assigned to the complainant by the mortgagees on the 11th day of March, 1844.

Peter A. and John Delmonico became partners as restaurateurs in the city o'f New York in October, 1827. In 1835, they purchased a farm in the eastern part of the city of Brooklyn, for the purpose of supplying their establishment with vegetables and provisions; and it was used for that purpose several years. It was paid for out of the partnership funds, and was conveyed originally to John, who executed to Peter a deed for an undivided half.

The bill in this cause was filed in March, 1840, by John Emmons, claiming to be one of the collateral paternal relatives, and as such one of the heirs at law and next of kin of George Rapelje, who died May 5th, 1835, seised and possessed of a very large real and personal estate.

The bill was filed in September, 1843, by the surviving executors of Thomas Chambers, who died in the city of New York on the second day of April, 1829, for a construction of his last will and testament, and for directions in the final disposition of his property.

<p>G.-asserted claims against two brothers who were partners, as well in their own right, as executors of his father’s estate, and a legal controversy was likely to ensue. D., his mother, who was the assignee of two bonds given by G. to the two brothers, two years before her death attached to the bonds a writing signed by her, expressing her desire to prevent such a controversy after her death, and directing the bonds to be cancelled on G.’s executing a discharge of all demands to his father’s executors and to each of his brothers and sisters ; and if he should refuse, then the bonds were to be made a set-off against any such demands, but they were never to be put in suit against him. The bonds and writing were in D.’s possession at her death, and there was no evidence of their having ever been out of her possession, or of any formal delivery of the writing by her.</p> <p>Held, in a suit against her administrator, that the bond should be delivered up to G. on his executing the discharges specified in the writing signed by D.</p> <p>Also that the instrument could not be sustained as a donatio mortis causa, nor on the ground of an appointment, or as a direction to her legal representatives; but that it was rather the discharge or forgiveness of a debt.</p> <p>It seems there is a distinction between donations unaccompanied by delivery, where ■ the object is to forgive a debt; and those in which the donor’s'apparent intent ia to transfer property, either in his possession or by means of his own note or bond.</p> <p>An averment of the execution of a deed or writing, imports delivery, as well as signing.</p> <p>The strong expressions in the books of the common law, against sustaining dona-lions, either mortis causa or inter vivos, without tradition Or actual delivery, are owing to such gifts being usually claimed on parol evidence.</p> <p>Where the intent of the donor is proved under his own hand, a delivery will be presumed from slight circumstances.</p> <p>The retention of the deed or instrument by the donor, does not impair its validity, unless there be clear and decisive proof that he never parted or intended to part with its possession.</p> <p>Though courts of justice ought never to strain a point of law to relieve a case of hardship, or to support a claim however meritorious; equity should strive to validate an instrument, evidently designed to be made effectual by the party, which proceeded not merely on a good consideration, but on that of settling and avoiding family broils; if the principles of law, or the force of judicial decisions will sanction a decree in its support.</p>

The bill in this cause was filed on the 26th of December, 1839, by Jacob J. Janeway, as surviving acting executor and trustee of George Janeway, formerly of the city of New York; who died on the second day of September, 1826, seised of a large real estate of inheritance in that city, and possessed of considerable personal property; for directions in respect of the share of the estate given to Sarah Ann Green, then Saráh Ann Freeman, and for the settlement of the executors…

• John Abeel who died in 1811, by his last will and testament, gave almost his entire estate to his niece Julia H. Brasher, who afterwards became the wife of R. D. Weeks, Isabella A. Howell, who afterwards became the wife of George Case, and Jane A. and Mary A. Howell, children of Phebe Howell, with a limitation over to the survivors on the death of either without issue.

The questions in this cause arose upon the will of John Mason, who died in the city of New York, on the 26th day of September, 1839.

On the 23d of November, 1835, Samuel Fitz Randolph being indebted to the complainant by his bond of $2500, executed to the latter a mortgage on a lot in the city of New York, to secure its payment. On the 1st of February, 1839, Fitz Randoph sold the lot to the defendant, Monholland, for $2800, and conveyed the same to him by a deed of that date.

The complainants, on the 25th of April, 1843, recovered a judgment against Henry Miner, which was docketed and became a lien on his real estate in the county of Lewis. On the 7th of September following, they became the, purchasers of the land on an execution issued upon their judgment and received a certificate from the sheriff.

On the tenth day of April, 1810, Nicholas William Stuyvesant demised to the complainant three vacant lots of ground at the southeast corner of the Bowery and Stuyvesant-street, (extending on the northerly side to Eighth-street,) in the city of New York, for the term of twenty-one years. The lessee was to pay a rent of thirty dollars annually together with the taxes, and had the privilege of removing his buildings at the end of the term.

This Was a suit to foreclose a mortgage for a large amount, executed by F. Yermeule to Silas Butler and Charles 0-. Handy, and by them assigned to the complainants, with their joint covenant for its collection-.

The controversy in these causes, arose upon the claim made by the general assignee in bankruptcy in the city of New York, to receive the funds which had been discovered and secured in judgment creditors suits prosecuted in this court against sundry bankrupts. The complainants in the suits, resisted the claim, insisting that they had, by their respective proceedings, acquired a lien upon the funds, prior to the right of the assignee.

The bill in this cause was filed on the tenth day of July 1842, by Charles A. Williamson and Catharine H. his wife, Rupert J. Cochran and Isabella M. his wife, and Bayard Clarke; (the latter, with the two married women, being the only children of Thomas B. Clarke, formerly of the city of New York, deceased, who survived their father;) against Hickson W. Field and, John M. Bradhurst, the sole acting executors and trustees of the last will and testament of Moses Field, late of…

The bill was filed on the ,11th day of December, 1841, by Hope H. Slatter and Shadrack F. Slatter, in behalf of themselves and all the other creditors of Luke Tiernan, late of the city of Baltimore, deceased, who might come in and contribute to the expenses of the suit; for the purpose of enforcing the payment of a bill of exchange held by the complainants. The case, as made out by the pleadings and proofs, may be thus stated.

The bill in this cause was filed on the 30th of July, 1844, by James, Peter and Thomas Coats, manufacturers, constituting the firm of J. & P. Coats of Paisley in Scotland; against L. Holbrook, T. S. Nelson and W. E. Shepard, commission merchants in the city of New York, trading under the name of Holbrook, Nelson & Co. The bill stated that the complainants for several years, have been the manufacturers and sellers of spool cotton thread used for sewing, and have forwarded the…

The bill was filed before the Chancellor, by John Taylor and William Taylor against Daniels Carpenter, in March, 1843.

<p>The plaintiff in this case was the owner of a publication called “ The Pictorial Almanack,” for 1847, the price of which was 6d.; the defendant of one called “ Old Moore’s Family Pictorial Almanack,” for the same year, the price of which Was 3d. The plaintiff alleged that the defendant’s work was a piracy on his publication, and filed a bill accordingly for an injunction. With regard to the substance and internal portion of the two works, there was little or no resemblance ; but the covers were, to a certain extent, similar, both being decorated with a pictorial representation of the Observatory at Greenwich, and in the title, as printed on the cover, making use of nearly the same expressions. The plaintiff alleged that this imitation was intentional, and done with a view to deceive the public, and to injure him, the plaintiff. This was denied by the defendant. The Vice-Chancellor of England granted an injunction ex parte, to restrain the defendant “ from selling any almanacks bound in paper wrappers or covers, or other wrappers or covers with the title Pictorial Almanack’ printed thereon, or having any other title printed thereon, so as, by colorable representation or otherwise, to represent the almanacks printed and sold by the defendant to be the same as those printed and sold by the plaintiff for the year 1847.” An application to dissolve this injunction having been refused by the Vice-Chancellor, the case now came, by way of appeal, before the Lord Chancellor.</p>

This case came before the court, on exceptions taken by Jonathan Goodhue & Co., to the report of a master, on the claims to a surplus arising upon the sale of mortgaged premises, under a decree in the suit of John L. H. McCracken, against Charles Wollen and others. The surplus was claimed by Daniel Berrien by virtue of a junior mortgage dated September 13, 1837; executed to him by Wollen, to secure notes, drafts, &c., signed for Wollen’s accommodation.

The bill was filed on the 16th day of March, 1842, by William Newcomb as administrator with the will annexed of Mary Mathews, and by W. Newcomb and James McBride, as like administrators of Bridget O’Brien, against Cornelius Heeney as surviving executor of Mathew Reed, the Trustees of St. Peters Church in the city of New York, and James Kerrigan.