Volume 3 — Edwards's Chancery Reports

Andrew Ten Eyck died on the fifteenth day of October, eighteen hundred and twenty-eight, seised of a considerable real estate in the city of New York.

On the eighteenth day of May, one thousand eight hundred and thirteen, Elias Denman and Jane his wife and Letty Van Brunt joined in a mortgage of lands to the • complainant, Rutgert W. Van Brunt, to secure the payment of a simultaneous bond executed by the same parties, conditioned for six hundred and twenty-five dollars, with interest at six per cent, and payable one year after date.

John Dover, by his will dated the twelfth day of October, one thousand eight hundred and twenty, after making certain provisions for his wife in lieu of dower, devised to each of his daughters, Anna, the wife of Stephen Stephens, and Lucretia,wife of John Wyckoff, for life, the rents, issues and profits of one equal undivided third part of the residue of his estate, real and personal, to be paid to them respectively in half yearly payments for their separate use.

The bill in this case was filed against Rufus K. Delafield, who, it was charged, was wrongly intermeddling with the real and personal estate of Samuel Benton, deceased. It showed that this Samuel Benton had died seised of a dwelling house and land in the city of New-York, and also possessed of considerable personal property. That he made his will,' which was duly proved ; that such will was in the hands of the defendant, Rufus K. Delafield.

Bill for partition of a house and lot, known as No. 17 Chatham street in the city of New-York. In the month of December, one thousand eight hundréd, these premises were conveyed to John Henry Siemon, Maria Elizabeth Siemon, Christopher Siemon and Amelia Gertrude Siemon, the four children of Walrab Siemon, as tenants in common.

The bill was filed by the complainants, William Elliott and his wife, she being the administratrix of her former husband, George W. De Witt, deceased, for a foreclosure and sale on a mortgage, executed by George Lewis to George W. De Witt, of a tract of land in Franklin County, State of NewYorlc. After a decree and sale had been made, but before the purchase money was paid, Mrs. Elliott died.

On the fifth of April, one thousand eight hundred and four, Jonathan Conrey of New-York, grocer, made his will, which was duly executed; and therein directed and decreed as follows : (after ordering debts to be paid) “ and as I have given my sons John and Jonathan Conrey five hundred acres of land in Kentucky, and six hundred acres in Syme’s purchase, therefore I think fit not to give them as much of my estate in New-York as the rest of my children.

Under the act, entitled, “ an act to provide for supplying the city of New York with pure and wholesome water,” passed May 2nd, 1834, it was necessary to take a piece of land in which Pierre M. Van Wyck, an infant, was interested. A guardian ad litem had been appointed ; and the question was, as to his being allowed his costs. The sisted that the court had the power to general act: 2 R. S. 613. guardian ad litem in-award costs under the

The complainants were creditors of the defendant, Peter Clarke, by judgment recovered on the twenty-first day of October, one thousand eight hundred and thirty-one, upon a joint and several bond, given by this defendant and James B. Clarke, as his surety, conditioned for the payment of four thousand dollars.

Tace W. Patton, by her will, bearing date the fifth of April, one thousand eight hundred and thirty-six, after bequeathing legacies and annuities and giving her executors power to sell and dispose of all her estate both real and personal, bequeathed as follows : “ Fifth.

Bill alleging a partnership, as paviors, between the com-» plainant and defendant. The defendant admitted a partnership to a certain extent; but denied any thing was due from him on account of it. Indeed, so far from it, he insisted that a large balance was owing from the complainant to him. The cause came up on bill, answer and proofs.

Bill, in the nature of interpleader. The complainants, ¡as managers of the Union Canal Lottery of Pennsylvania, issued the twelfth class of such lottery, and the defendant, Arthur O. Tisdale,.who was a lottery ticket vender in the city of Boston, became possessed of a quarter.

The bill in this cause was filed by the residuary legatees of the late Hannah Woodhull; and its object was to settle the construction of her will in relation to certain legacies, and to to call the executors to an account.

Bill, claiming a service of plate as a gift inter vivos. The complainant appeared as the administratrix of the estate of Eliza Thomson, and the said Eliza Thomson having been the widow of James Thomson deceased.

Question of nuisance in using an adjoining lot as a coal yard. In the year one thousand eight hundred and twenty-five, Thomas R. Mercein was the owner of a block of ground in the city of New-York, between McDougal street and the Sixth Avenue on the south side of Waverley Place, which he divided into thirty-nine building lots, and made a map, with such division, and filed it in the office of the register of deeds.

Judgment creditor’s bill; and to which a demurrer was interposed. The points whereon it was attempted to be sustained, appear sufficiently in the opinion of the court. It may be well, however, to say that the judgment was a joint one, obtained against McDonell, who was not made a defendant, as well as against Daniel Sparks who was the sole party defendant.

Samuel R. B. Norton, the present complainant, while holding and owning a large mortgage made by the defendant, Effingham H. Warner, obtained ten thousand dollars from the defendants, The Long Island Farmers’ Fire Insurance Company, on pledge of such mortgage and assigned it for security. The face of the assignment, recorded, showed that it was a pledge.

Bill for discovery and account against the defendants as booksellers and publishers. The cause came up on a demurrer.

Bill to foreclose two mortgages made by the defendants, Anson Blake and wife, to the Washington Insurance Company of the city of New-York. One of the mortgages was for six thousand dollars and the other for ten thousand dollars—both of them on property in the twelfth ward of the city of New York. The first of the mortgages was paid down to three thousand five hundred dollars on a part of the mortgaged premises being released. .

The bill showed that the complainant, Moses Souza, had obtained a judgment at law against the defendant Richard Belcher and, under a Ji.fa., had caused the sheriff of the city and county of New-York (John Hillyer) to levy upon furniture and stock in trade in the possession of Belcher. This property thus taken under the execution was claimed by the defendant Simpson, who had brought an action of replevin against the sheriff.

The complainants were owners of lots with store houses thereon fronting on Old Slip in the city of New-York. This slip was filled up and the space which had been occupied by it became as part of the street.

Bill for foreclosure, upon a bond and mortgage given by the defendants to the complainant, in part consideration for the leal estate mortgaged.

The complainant was interested in the Williamsburgh Ferry Company as one of the original associates and shareholders. He claimed to have a right to restrain its operations and to have the affairs wound up, on the ground of loss and want of solvency. An order had been granted for the managers to show cause why an injunction should not issue. The company, under its corporate name, was not before the court as a party.

Motion to dissolve an injunction on bill and answer. The bill set forth that the complainant, Seth Geer, had entrusted the defendant, Joseph King, with a promissory note for two thousand dollars to be discounted or have money raised upon it and the amount paid over to the complainant; but that, instead of doing so, King had passed it away to the defendant Samuel Kissam in part payment of real estate, who had after-wards passed it away to the other defendants, Timothy T.…

Bill of foreclosure. The defendants, Samuel C. Fiske, who was the mortgagor, had assigned the equity of redemption upon certain trusts. His assignees were not made part ties ; and in taking advantage of this by a plea, he said that he executed the assignment in due form of law and for a sufficient consideration.

Staats M. Mead was the owner of real estate in the first ward of the city of New-York, and executed three mortgages Qp t^e same t0 different individuals. He then sold it to the defendants John R. Peters, Obadiah Holmes and Russell Stebbins, subject to the mortgages; and the latter also gave back a mortgage to Mead.

Bill of discovery to aid an action at law. Exceptions had been taken to the answer for impertinence as well as insufñc¡ency an¿ {}le cause came before the court on exceptions to J * t^ie master’s report allowing them.

<p>Practice.. Hearing on bills pro confesso.</p> <p>Where a solicitor appears for a defendant and the bill is taken as confessed, the complainant cannot move the cause out of its order, unless he has expressed an intention of doing so in his notice of hearing.</p>

Bill to foreclose a mortgage made by the defendants Henry Dudley and Helen C. Dudley, his wife. The suit had procressed so far that the hill had heen taken as nnnfessed hv these defendants ; a reference to compute the amount due had occurred, and the cause was on the calendar upon the master’s report. But just before the day for hearing, the defendant, Henry Dudley, died.

Exceptions had been taken for insufficiency to a defendant’s answer.

This cause came before the court on a plea to the jurisdiction of the vice-chancellor of the first circuit. The bill showed that the complainants, under the style of Phelps, Dodge & Co., were merchants in the city of New York.

Bill of foreclosure on a mortgage made by the defendant Morgan to the defendant Horatio Wilkes. The latter had assigned this mortgage to the complainant; and entered into covenant (in the assignment) that the amount of the consideration, eight thousand one hundred dollars, was due and owing upon the bond and mortgage, the payment whereof, with interest, he guaranteed to the complainant. General demurrer interposed by the defendant Horatio Wilkes.

This cause came up on a motion to dissolve the injunction. Such motion being made on bill and answer.

Bill for specific performance ; and to restrain a sale or conveyance to any one other than the complainant. The defendants, Samuel Cassidy and Abel J. Smith, who resided in the state of New Jersey, were (under a special act of the legislature of that state) trustees for the sale of the real estate of Anna Hornblower, deceased, late a resident also of New Jersey. This estate was also situated within the latter state.

Petition to sell the church and lands of the petitioners to the mayor, aldermen and commonalty of the city of New-York; and to apply the purchase moneys to the buying of other ground and the erection of another church.

<p>Practice. Amendment. Injunction bill.</p>

In this case, the defendants’ rights were not finally adjudicated upon; they had, however, succeeded in dissolving an injunction which restrained them from collecting rents. A receiver had therefore been appointed ; and he had former rents in his hands. The defendants, by petition, asked, not only to take the moneys which were in such receiver’s hands, but complained against the receiver for not having furnished them with statements, upon their asking him to account to them.

Bill for divorce a vinculo matrimonii, filed by the wife against the husband, on the ground of adultery. A solicitor appeared for the husband and consented to the bill’s being taken as confessed and to a reference. A decree of divorce was had ; and an application was now made, on the part of the husband, to set aside the proceedings for irregularity and to allow the defendant to put in an answer, showing condonation.

<p>Cestui que trust and trustee. Appointment. Mortgagor and mortgagee. Parties.</p> <p>A defective execution of an appointment, made for a valuable consideration, is not wholly void. It amounts only to a defective execution and equity will supply it.</p> <p>A party who gives a mortgage to a trustee on a purchase of property cannot, when pressed for payment by a bill of foreclosure, test the validity of the trust.</p> <p>Where the rights of trustee and cestui que' trust are to be brought before the court, they can be joined as co-complainants; but still, where the cestui que trust is a feme covert, she should also appear by a next friend. This, how"ever, is more a matter of form than of substance, and a demurrer ore terms will not prevail.</p>

Bill for dower, filed by the complainant Eliza B. Williams, as the widow of Cornelius Tiebout Williams, deceased.

Application by the administrator of John Mitchell, deceased, that a balance paid into court by a master on foreclosure and sale, might be paid out to the creditors of the said John Mitchell. A reference was had; and the guardian ad litem of the infant children of this John Mitchell took the objection that some of the debts were barred by the statute of limitations; and, on that ground, excepted to a master’s report. The point now came before the court.

Bill to recover the possession of a promissory note for seventeen hundred and eighty-three dollars and sixty-two cents made by John Mel & Co. in favor of the complainants, and which, as the bill alleged, the complainants had placed in the hands of one Walter M. Oddie as their agent and broker, to get discounted.

<p>Assessments. Lien.</p> <p>M. held lots in Brooklyn; and C. had several adjoining. The corporation, through commissioners, made an assessment; and, without discriminating charged C. as if he were the owner, as well of his own lots as of those that belonged to M. The latter, then, mortgaged his property. Afterwards C., on explanation with the corporation, pays them such proportion of the assessment as seemed to apply to his premises; and the corporation then, claimed a lien, prior to the mortgage on M.’s lots, for the balance. Held, that the corporation (on the ground of not having proceeded regularly under statute to ascertain and assess the true respective owners) had no lien on M.’s lots.</p>

Demurrrer to bill of interpleader. The complainant, as a trustee or agent, was the holder of funds arising from the sales of property; and the'defendants Olympe L. Pelissier and Richard S. Church claimed interests in it. The complainant and the defendant Church were citizens of the United States ; but the other defendant, Madame Pelissier, was a subj'ect of France.

Bill by husband for a divorce. The wife applied for temporary alimony and money to make her defence. This was met by the alleged poverty of the husband.

The complainant, in this case, was the assignee, by volunlary assignment, of all the estate of her son, Thomas Pearsall, in trust for the benefit of his creditors and of his wife and children. The property assigned included the equity of redemption of the mortgaged premises, which her son had previously mortgaged to the Globe Insurance Company for ten thousand dollars ; and which mortgage had been proceeded upon in this court to a decree of foreclosure and sale.

Bill to foreclose a mortgage given to the complainants, by the defendants, Robert Donaldson and Mary his wife. The mortgage contained a clause, giving permission to the complainants to keep the buildings erected on the premises insured against loss by fire ; and making the amount of prea lien.

Motion to dissolve an injunction ; also, hearing on bill and demurrer. The bill was one of discovery to aid actions at law, which had been brought by the defendant against the complainant on c * i two notes endorsed by the latter. It appeared by the bill that these notes had been-transferred by the complainant to J. R. St. John & Co. and by them transferred to the present defendant.

Julia Lynch had died intestate in the city of New-York; and letters of administration upon her estate were granted to the public administrator. The bill was -filed by him to recover the amount of two thousand five hundred dollars, which the defendants were charged with having abstracted from the bureau of the intestate.

Questions upon the construction of the will of Daniel Crocheron, late of Northfield.

Bill, for specific performance of an agreeme of real estate, filed by vendee against vendor. The complainant had become the purchaser ground at auction. The advertisement of sale did riTTtvkrstrfittfe their dimensions, but reference was made to their being Bloomingdale lots on the Depeyster Tract. A lithographic map used at the sale gave their numbers&emdash;45, 46, 92, 93 and 237&emdash;but not their admeasurement. They were struck off at eighty-five dollars a lot.

On the third of April, one thousand eight hundred and twenty-four, the Mohawk Insurance Company was incorporated. Its capital was to be five hundred thousand dollars, divi- • ded in shares of twenty dollars each. By its act of incorporation, all the capital was to be subscribed for and paid in |before the company could proceed. It was to act through directors, (fourteen) and a majority was to make a quorum.

<p> Infancy. </p> <p>Where a party, on arriving at age, claims the restoration of property parted with while a minor, he must restore, on his part, what he may have received ; asking for equity he must do equity, ^rr</p>

Judgment creditor’s bill, for one hundred and fifty-five dollars and sixty-five cents. A subpoena had been issued and served personally ; and soon afterwards the complainant served on the defendant a petition for a receiver. No copy of the bill had been served.

Bill for divorce, on the ground of adultery. Motion for a feigned issue.

Cause delayed; motion, on affidavit, that bill be dismissed or for such further order, &c. It appeared, by the affidavit of the solicitor for the complainant, that he had, since the notice of the motion, expedited the cause and was, bona fide, pursuing the matter of the suit.

Bill of foreclosure. The defendant, in his answer, set up a parol agreement, whereby time was given to the complainant for payment, beyond the time mentioned in the bond and mortgage.

Motion to discharge a writ of ne exeat. The defendant had taken the benefit of the insolvent (two-thirds) act prior to the filing of the bill. In opposition to the motion, affidavits were rea tending to show that the defendant had made a fraudulent assignment to one Combault, prior to and in expectation of taking the benefit of the act; also, suggesting informality in the discharge ; and that the defendant had sailed for France pending the process.

Motion to discharge a writ of ne exeat respública. The bill was filed for an account of profits and sales of a patent right, of which the defendant had sold one half to the complainant.

A judgment-creditor’s bill, founded upon the return of a writ of fieri facias issued in the year one thousand eight hundred and thirty-five. After the usual allegations, the following clauses, among others, as to property, appeared in the bill: “Your orators further show and charge the fact to be that the said John A. Moore has been, for some years last past and is now, doing a large, extensive and profitable mercantile business in the of in and under his own name.

<p>Co-partnership suit for an account, after a dissolution by mutual consent. The complainant, with the defendants, John Thomas and Samuel K. Head, had been the partners of the firm. The bill alleged a sale of the stock in trade, by the defendants John Thomas and Samuel IC. Head, to the defendant, James G. Wilson, without the consent and in fraud of the rights of the complainant.</p> <p>On a notice of motion for an injunction and receiver, the court granted it as against the defendants Thomas and Head. They had received notes from Wilson for the sum of three thousand and nine hundred dollars ; and after the court had directed the entry of an order for a receiver and an injunction, but before the injunction or order for a receiver was served, the defendant, Samuel K. Head, got the defendant Will son to discount the notes; and the other defendant, John Thomas, received part of the money. This appeared in the examination of Wilson before the master, on the appointment for a receiver ; as well as that Thomas and Head knew of the Vice-Chancellor’s having granted an order for an injunction and receiver. The following is a part of James G. Wilson’s testimony : “ About the twenty-fifth or twenty-sixth of June I had a full settlement with Mr. Head. I think it was in the afternoon of the day after the motion for an injunction was argued. I was present at the argument. Mr. Head was not. I think I met him at the office ; and the arrangement was talked of that day, and the next day carried into effect. I told Mr. Head I had been at the Hall and heard the motion argued. Mr. Head did not seem to think a receiver could be appointed, and was surprised that the order for one had been made. I told him the result of the motion, at which he seemed to be disappointed. The result was, that Mr. Head wanted my notes taken up. He did not want them settled by a receiver. I was not exactly ready to do it. I paid him about one thousand one hundred dollars in a note of my own, on demand, and the balance in cash, he allowing the amount of the drafts I had already paid. The cash I then paid him was about one thousand dollars. He made a deduction of three per cent, a month on the twelve hundred dollar note for the time it had to run. I do not know what has become of the eleven hundred dollar note. I have not paid it. Head and Thomas both knew that the motion had succeeded for an injunction ; and that a receiver would be appointed. I told them I had heard the Vice-Chancellor’s decision. They talked about the argument before it took place ; went to the chancellor, who told them they must employ a lawyer; and knew that the motion was to be for a receiver and an injunction.'’</p> <p>The parties were brought before the court on an attachment.</p>

A judgment creditor’s bill against Stephen Lindo and Meyer Chrystaller.

A receiver had been appointed on a judgment creditor’s bill; and as two other suits of the same character were after-wards commenced, the receiver became a receiver also in the latter causes. About one thousand dollars, in all, were due on the different judgments. The receiver had advertised the property assigned to him for sale by public auction.

There were seven suits for foreclosure, in which the above defendant, Seth Geer, was a party defendant. He had put in an answer to each bill, and in all of them claimed a set-off. The amount of such set-off was more than the mere interest on the mortgage debts. A motion was now made to compel him to elect in which of the suits he would apply the alleged set_offs.

A case of foreclosure. An advertisement was running against some of the defendants ; and the complainant deposed, that he himself was about to leave the state and should not return until after the cause was ready for a hearing. Motion that he be now examined as to any payments.

There had been a mortgage of a varnish and tar factory ; and a bill was now filed to restrain waste to the kettles, fixtures, and implements. An injunction, pursuant to the prayer for restraint, had been granted and was in force. Cross motions now came on: one, to dissolve the injunction, and the other, for a receiver.

A summons had been personally served upon the defendant, with the following underwriting: “ To deliver over and to proceed in the assignment and delivery over to the receiver of the property and effects of the defendant and in the examination of the defendant under oath; the personal attendance of said defendant being required.

The complainant had taken two bonds and mortgages from the defendant, James E. Underhill, on a sale of real estate; and, on non-payment, had commenced an action on the bonds in the Superior court of the city of New-York, which was at issue and noticed for trial. After the action was commenced, the complainant filed his bill to foreclose the mortgages, and he now moved, upon affidavit, to be allowed to proceed in the action.

The bill was filed for the purpose of obtaining the advice and direction of the court as to a correct construction of the will of John Pell, deceased. Held: that the trust to distribute at discretion was personal, and failed at the death of the trustees ; and that the whole trust properly must go to those who were next of kin to the testator at the time of his death.

At the time this suit stood ready for taking testimony, the solicitor for the defendants in the second suit served a notice of examination of witnesses on the opposite solicitor.

Judgment creditor’s bill; which showed that the judgment was docketed- on the thirty-first day of July in the year one thousand eight hundred and thirty-five, but execution not issued until the twenty-fourth day of October, one thousand eight hundred and thirty-eight. Motion to dissolve the injunction on tbe ground that it did not appear the judgment had been revived bJ scire facias..

Motion to revive a suit, through the petition of Caswell Bates, executor of the late complainant, Mary C. Daniels, now deceased. The bill was filed for the specific performance of a contract on a sale of real estate in the city of New York, alleged to have been sold by the complainant to the defendants. It appeared by the petition, that the complainant, in her life time, tendered a conveyance.

The complainants obtained a judgment against John Pendleton, John Hanna, Henry O'Brien, Alpheus Be Forest and James Be Forest, on a promissory note for upwards of four thousand dollars. John Pendleton had become endorser on this note and others, at the request and for the benefit of Hanna, Be Forest and Co., who handed to Pendleton certain notes to indemnify his endorsement.

<p> Pleading. Answer. Exception Judgment creditor’s bill. </p> <p>It is not enough that a defendant, in a judgment creditor’s suit, deny property “ except his necessary wearing apparel.” He must give a particular account and value of such wearing apparel, for the court to see that it is not above the amount exempted by law.</p>

<p> Gift inter mvos- </p> <p>Where a person makes a purchase and advances the consideration, the property is prima facie his own, although the title is taken in a third person’s name; but this presumption or implied trust may be repelled and the onus to that effect is on the grantee named in the deed, provided he is a stranger; but not so, where the grantee is a wife or child.</p> <p>Where a child is so by adoption, and a conveyance of land purchased is taken in the name of the child, the principles growing out of the relation of parent and child may be considered as applicable.</p> <p>Case where an alien adopted an infant about five years of age, and had a lot conveyed in her name. The conveyance remained in the infant’s family ; and, although he assumed acts of ownership, yet as there was evidence to show he called it the infant’s property, the court, under all the circumstances, decreed it a gift and not a case of trust.</p>

<p> Partnership. </p> <p>Persons who subscribe for shares in joint stock companies and pay deposits, but do not comply with the full conditions of the association and never be. come entitled to profits, are not liable for debts, unless they are active in contracting them or hold themselves out as partners. The same principle will apply, as far as it can, to a suggested limited partnership not carried through.</p> <p>It would seem that there can be a limited partnership in the running of a steamboat.</p>

This cause came before the court on exceptions taken to the master’s report, relating to a surplus on the sale of mortgaged premises. But the only point of interest that arose was in relation to the East River Eire Insurance Company, and as to whether its charter had become forfeited. A sufficient explanation of its situation appears in the opinion of the court.

The commissioners, appointed under the act for supplying the city of New-York with pure and wholesome water, required land fronting on the Harlem river, belonging to William B. Lawrence, in order to carry over their proposed aqueduct or low bridge ; and appraisers under the act had valued such land. Their report now came in for confirmation.

Bill for divorce, a vinculo matrimonii, on the ground of adultery. It had been taken as confessed. The master reported in favor of a divorce ; but the only testimony taken was a deposition of one Ann Lee. She swore that she knew both the parlies to this suit; and that the defendant had had connection with her in a house of ill fame. This was all the deposition contained; and she made her mark to it.

Judgment obtained, and bill filed thereon during the life of the debtor ; the suit was revived against his administrator and administratrix; and a motion was now made for a receiver of the estate and effects of which he died seised or of so much as the bill covered at the time it was filed and the injunction issued.

Motion to set aside a decree, in a mortgage case. An affidavit of merits, under the 91st rule, had been filed on the second day of October, one thousand eight hundred and thirty-eight, and the following was the form of it: (Title.) “ Henry L. Pierson, one of the defendants in the above cause, being duly sworn, doth depose and say, that he has a good and meritorious defence in said cause, as he is advised by his counsel in said cause and verily believes to be true.

<p> Practice. Master’s sale. </p> <p>Where, under a decree for foreclosure and sale, a purchaser refuses to perfect his purchase, and the complainant does not press him, the master should sell the property over again, and not let the complainant take it at the pur. chaser’s bid and receive a deed.</p>

Petition for substitution of trustees to act under the will of Mrs. Susan Barclay. The petition was made out in the names, as well of all the parties nominated trustees by the testatrix, as of the proposed substitutes. Two of the persons named had never acted, and now declined ; and the application was, to appoint others in their stead. The trustees had power to sell and convey real estate and pay over the proceeds to the executors.

There was a question in this case as to the regularity of taking out a summons by a defendant to proceed with the examination of a witness before the master, while the complainant still had the conducting of the reference ; but. the principal point was, as to the effect of testimony given by a witness, who was disinterested when his examination was commenced, but who became interested before it was over.

<p> Debtor and creditor. Judgment creditor. Real estate. Rents. Receiver. </p> <p>A judgment creditor’s bill need not be restricted to the discovery of personal property. It can be used for discovering the defendant’s ownership of lands affected by the judgment; so that, when discovery is. had, a receiver ad interim can be appointed and a newfi.fa. issue without prejudice. But where there is no impediment at law, the remedy should be there.</p> <p>A judgment creditor, to be entitled to have a receiver of the rents of real estate, should be fairly in court with respect to the estate. The court refused a receiver in a case where the complainant and sheriff had known of the real estate before the return of the fi. fa., and dissolved an injunction so far as the rents were concerned.</p>

Motion to set aside a writ off.fa., which had been issued to make up the deficiency after a sale of mortgaged premises. By the recitals in the fi. fa., it appeared that the decree was had on the second day of January, one thousand eight hundred and thirty-eight.

Cause at issue; and petition, on the part of the complainants, showing that Orlando J. Moore, the next friend, was a material and necessary witness and praying that his name might be stricken from the bill and the name of John M. Bloodgood substituted in his place as next friend of the complainant, Eliza Golden.

Bill against tenant for life to restrain the disposition of property and to keep down assessments and taxes. The tenant for life, Susannah Elizabeth Chabert, who was sole executrix an¿ jn receipt of the rents of the realty, had allowed the taxes t0 run arrear for two years. A motion was made for a temporary receiver to collect rents and pay the taxes.

Bill of foreclosure; on a mortgage given by Margaret S. Morris, who was a married woman at the time she executed it. Her husband did not join. The mortgage was made to secure a part of the consideration money, on a purchase by the said Margaret S. Morris and conveyance taken in her name.

Judgment creditor’s bill against Brittain ; and charging that the other defendant, Jones, to whom Brittain had assigned leasehold premises by way of mortgage, had been fully paid. Motion for a receiver, especially of the property held by J ones (wb0 occupied part of it himself.) The defendant Jones denied having been satisfied.

Hearing on bill and answer. The Merchant’s Exchange Company were incorporated by the legislature of the state of New-York, for the purpose of building an exchange in the city of New-York.

Bill for partition. The cause came up on bill and answer, The complainant purchased lots of land at Brooklyn ; and believing he had a title to the whole, he made mortgages thereon and also sold some parts which, with a portion of the remainder, were improved by the erection of buildings. He afterwards ascertained that the title as to one forty-second part was in the heirs of a John Rankin.

Motion to dissolve injunction on bill alone. The bill was filed by the complainant, Mary Elizabeth Perley, who described herself as the widow of Nathaniel M. Perley, formerly a resident of Rowley in the state of Massachusetts. It went on to state that the said Nathaniel M. Perley had always resided, until the time of his death, at Rowley and his family still resided there; that he died at Savannah in Georgia, leaving the complainant his widow and an infant son.

Motion to set aside an order, referring exceptions taken to an answer. An answer to a supplemental bill was filed on the sixteenth day of May; and served on the same day. Exceptions to it were taken, filed and served on the twenty-ninth of the same May. An order to refer the exceptions to a master was entered on the twenty-fourth of June following.

Question upon the validity of the sixth clause in the will of Jordan Coles, deceased ; and which clause was as follows : “ Sixthly.

This cause came up on exceptions to a master’s report disallowing exceptions to an answer. The statements in the bill were not direct, but hypothetical.

Motion, on bill and answer, to dissolve an injunction. The bill was filed by Eliza W. Shirley, through a next friend, against William W. Shirley, her husband, and his mortgagee, John Lambert. It sought to get back and discharge certain household furniture from the effect of a_ mortgage mac*e by such husband—charging that the articles had either been bequeathed to the wife or were the avails of property bequeathed to her for her own separate use.

It was a case of foreclosure and master’s sale.. After the property had been knocked down, the purchaser refused to pay the deposit or sign a menaorandum.

Summons to appear before a master on the twenty-fifth day of June, served on the twenty-fourth. Motion to attach a party for non-attendance.

Motion to substitute a solicitor for a defendant. The old solicitor was willing to have any person appointed in his place on having his costs paid.

A petition had been presented by William A. F. Pentz, Frederick Pentz and John Pentz against the receivers of the vElna Fire Insurance Company of New-York.

Judgment creditor’s bill; and a motion for an attachment against the defendant for refusing to answer questions before a master, under an order for the appointment of a receiver. The motion was opposed, on the ground that the order had performed its office, by an examination of the defendant which had already taken place ; and which examination had been continued until the counsel for the complainants voluntarily - , ceased and terminated it.

Bill of revivor and supplement; and a demurrer thereto. The original was a judgment creditor’s bill, against Thomas R- Grant, the debtor. He died, pending the suit; and the object was to revive against the administrators of the deceased.

<p> Condition precedent, </p> <p>Where a complainant has to perform conditions precedent and the doing them would give a remedy at law, he should be left to such remedy.</p> <p>This court will not interfere, when the condition precedent has not been performed, for the purpose of compelling the other party to give security in an. ticipation.</p> <p>An offer to perform conditions precedent is not sufficient. Performance must be shown,</p> <p>A party, who is to perform a condition precedent, is not to come into court beforehand, in order to ask for instructions as to how or whether such con. dition precedent has been performed.</p>

On bill and demurrer. It appeared by the bill that the complainants were incorporated by an act of the legislature of the state of New-York, on the twenty-sixth of April in the year one thousand eight hundred and thirty-six.

Judgment creditor’s bill. It was filed on the fourteenth day of June, one thousand eight hundred and thirty-nine; but the subpoena and injunction were ante-dated, being made out as of the first of June. The defendant had appeared by a solicitor; and, on being summoned before a master, executed an assignment to a receiver. Motion now made to set aside the process.

Bill filed for a partition and settlement of the estate of Robert Robinson, deceased. The cause came before the court on exceptions to a master’s report and these exceptions involved the construction of the will of Mr. Robinson. The will was dated on the twentieth day of October, one thousand eight hundred and twelve, and took effect by the death of the testator in the month of December following.

<p>^"“n"s^z*¿°g¿/¡- 0f court. Fees.</p> <p>Where a guardian was directed to sell and bring infants’ shares into court in bonds and mortgages, made out to the clerk of the court and he did so, the court decided that the clerk was not entitled to a per centage commission on the amount of the securities; nor for receiving the interest moneys; and only for paying them over.</p> <p>A Vice-Chancellor has jurisdiction to determine any question relating to fees or commissions claimed by the clerk of the court.</p>

This was a suit in partition, wherein a sale had taken place and persons had been paid their liens. Among these liens were two judgments entered up, pendente lite, in favor of the solicitor of a female defendant in interest.- She now presented a petition, insisting upon want of consideration ; and claimed that he should refund.

Joint mortgage by George A. Ward and William Power to the complainant; and Power afterwards gave the complainant a mortgage to secure an instalment due on the first mentioned. ° ° Then Power sold out to Ward his rights in the property embraced by the joint mortgage; and ultimately and subject to the lien, it passed into the hands of the defendant McVickar.

The defendant resided at New-Orleans ; and the solicitor for the complainant obtained and published the usual order for an appearance. Before the time was out, a solicitor entered an appearance for the defendant; and a copy of the bill, with notice of an order to answer, was served.

<p> Mortgage. Redemption act. Rents. Vendor and purchaser. </p> <p>Under the mortgage act of the 13th of May, 1837, where a mortgagee became the purchaser and took possession and then the mortgagor redeemed: it was held, that the mortgagor could only be required to pay the purchase money with ten per cent, interest and that the purchaser must account for the rents received.</p> <p>A purchaser of land is not entitled to a year’s rent accrued and due previous to his purchase. All he is entitled to is the rent from the quarter day immediately preceding his purchase, unless, by the terms of his agreement, he is to receive the rents which have previously accrued.</p>

Bill for divorce on the ground of adultery. It had been taken as confessed ; and the case now came before the court on the master’s report.

Bill filed for divorce on the ground of adultery. It had been taken pro confesso; and on the master’s report now coming in,

Bill by judgment creditors. The defendant had put in a full answer; and the time for tiling exceptions was passed. Before the answer had been filed, an order for a receiver was enterec*- > anc*- the defendant had been partly examined before the master on this order touching his property. The examination was continued after the answer had been put in.

<p> Lunatic. Inquisition </p> <p>Where a person is proceeded against under'the statute of lunacy, if he be not strictly a lunatic or idiot, the inquisition should find him of unsound mind. It is not enough to return’that “he is so far weakened and impaired in the faculties ofhis mind as to be mentally incapable of the government of himself, &c.”</p>

Judgment creditor’s bill. It charged that the complainant had recovered a judgment, in the supreme court, for fourteen thousand dollars of debt and twenty-one dollars and eighteen cents damages.

Green and Weyman had been partners ; but, on account of the misconduct of one, the other filed a bill for dissolution l^e co-partnership and obtained a receiver. They had been merchants in the city of New-York, doing business at No. 213 Front street. The landlord now presented a petition, asking that the receiver might pay him rent.

<p> Receiver. Partnership. </p> <p>Although an injunction ex parte has been granted in a partnership suit, it does not follow that a receiver will be appointed.</p>

This matter having come up on an order to show cause why the property of the Eagle Iron Works, a manufacturing cor- ..... ° . , , , _ . „ . poration, should not pass into the hands of receivers, ote. and the insolvency of the corporation appearing, a reference was had to appoint receivers.

Bill for divorce a mensa et thoro, on the £ There had been a reference to a master to re rary alimony and an advance to counsel; a the report now came before the court.

Bill by the husband against the wife for divorce, a vinculo matrimonii, on the ground of adultery. Application for a decree, on the coming in of the master’s rePorti

Motion, on petition, to set aside default and to be allowed to come in and answer. The defendant, George Douglas, was served with a subpoena a short time before he was about to leave for Europe ; and it had not been attended to. The matter of the suit related to family property of large value. The complainants were willing to let the party in, provided he did not set up the statute of limitations ; but gave no special ground for so restricting an appearance.

Petition presented by judgment creditors to sequestrate the property of the Brooklyn Lyceum, under the statute authorizing proceedings in equity against corporations. The question was, as to how far this institution came within the act.

Judgment creditor’s bill. A motion for a new trial in the action at law had been made; but was not decided. The defendant was out of the country; and the complainant obtained an order to advertise that he appear within nine months. The complainant (while the time was running for such appearance) took an order for a receiver ex parte. A suit, similar in its character, had been before the court on a prior day and is referred to by his honor.

Mortgage case ; a decree for sale was had ; and the mortgagor dying after decree, but before enrolment, a petition was presented to revive, setting forth very much in detail the proceedings in the cause as well as the death of the party.

<p> Banking association, Receiver. </p> <p>A banking association, under the general act authorizing the business of banking, (April 18, 1838,) can only be proceeded against and dissolved in chancery for the causes assigned in the 27th section of the act: Held, that a discontinuance of business, reputed insolvency, large amount of notes outstanding and unpaid, notes protested in the hands of the comptroller and nonpayment of rent, w-ere not grounds on which chancery could interfere and grant a receiver of a banking association, at the instance of a simple contract creditor. His remedy is at law.</p>

Bill to foreclose two mortgages. Demurrer interposed. By the act, entitled “ An act to enable Masonic lodges to take and hold real estate for certain purposes,” passed April 16th, 1825, it was enacted, (section 6,) that any three or more lodges or chapters of free masons in the city of New York or the members thereof, might associate together and purchase and hold so much land in the said city as should be necessary for the purpose of erecting a general hall for the…

Cause heard on bill and answer. ' Nicholas Gouverneur, by will, after directing his real estate to be divided into lots or shares, left part of it as follows : “ And the remaining shares (if any there be) of the said lots and real estate, I give to my said executors and executrix and the survivors and survivor of them and the heirs of such survivor, upon the further trusts following, that is to say: to draw and set apart one of the said shares for and in respect to each of…

Petition by the defendant James B. Clarke for a rehearing, The complainant and defendants formed or represented an association or copartnership in real estate in Brooklyn and in a ferry there ; and the defendant James B. Clarke was to have the entire management. The title to the properties stood in his name; but, in trust for mutual benefit. Among the parties in interest were the heirs or representatives of Silas Butler, deceased.

The particulars in the last case can be referred to for an understanding of the petition which was now presented by the president and directors of the Manhattan Company to be allowed to prove a claim as a partnership debt in the same suit.

The bill had been dismissed, with costs and the defendants issued a ca. sa. They were taxed; The question (submitted) was, whether the parties issuing the writ were entitled to a ca. sa. for the costs 1

Cross motions; one on the part of the complainants to compel the guardian ad litem of the infant defendants Harriet G. Halsey, Adaline Halsey, Edward C. Halsey and Gertrude M. Halsey, to put in an answer ; and the other, by the defendants John C. Halsey and Eliza Halsey, executor and executrix of James M. Halsey, deceased, to set aside proceedings and dismiss the bill as to them for want of prosecution and for other causes.

Mr. Noyes moved to discharge a buyer from his purchase made at master’s sale, on the ground that one Blatchford had not been made a party to the suit (in foreclosure) he having purchased the premises at a sheriff’s sale prior to the filing of the bill, although he did not get a deed until afterwards.

Motion to restrain the solicitor for the defendant from taking any further steps in the cause ; on the ground of the complainant’s death. The complainant resided in France ; and was, in fact, dead at the time the bill was filed. When the news of her decease came out, the counsel for the complainant notified the solicitor of the defendant of such death ; but such solicitor continued proceedings by putting in a plea.

Motion, on behalf of the defendant Benjamin Loder, to dismiss the bill for want of prosecution.

The affidavit on which the application was founded merely showed that the defendant was not deemed a responsible man by those who knew him. The defendant deposed to his own solvency ; and added that he was worth, as he believed, ten thousand dollars after all his debts and liabilities were paid.

Motion, on bill, for an injunction to restrain the defendants, the mayor and common council of the city of Brooklyn, from collecting assessments imposed for grading streets. The complaint seemed principally to arise because, as it was thought, the assessment should (if at all) have been put upon owners in other streets.

Exceptions had been taken to the answer of the defendant; and these now came before the court on exceptions to the master’s report. As to one of the exceptions : the bill charged that the defendant had sold goods to one Mancks on credit and without taking security therefor. And as to another exception, the bill alleged the insolvency of Mancks.

Demurrer to a judgment creditor’s bill founded on a judgment docketed since the passing of the act which took effect on the first of June, one thousand eight hundred and forty. The bill did not show at what time the action had been commenced, but gave the test of the fi. fa. the thirteenth of July and the return the sixteenth of the same month.

Motion to dissolve an injunction on bill and answer. The bill showed that the complainant made and delivered a bond and mortgage in favor of the defendant Eleutheros D. Comstock, as president of the Mechanics’ Banking Association, for securing sixty thousand dollars and interest.

Application to compel a purchaser to take land bought at a master’s sale. With regard to the title, it appeared that in the year one thousand eight hundred and twenty-five the complainant, John G. Coster, with James B. Clarke, Samuel James and Joseph Moser, agreed to purchase the lease of one of the Brooklyn ferries and also certain tracts of land in Brooklyn on joint account and for their mutual benefit.

Judgment creditor’s bill against the two defendants. On a reference for a receiver and that the defendants should deliver over their property, it appeared that the household furniture of the defendant Samuel D. Ford had been sold by the sheriff; bought by one John Perkins; and left by him with Sarah Ford, the mother of the defendant Samuel D. Ford ; and that the latter had the use of it. The master had decided that the furniture should be given up to the receiver.

<p>This cause came up on bill and demurrer.</p> <p>The bill showed that on the twenty-third day of June, one thousand eight hundred and thirty-six, George Folsom, one of the complainants, borrowed of the defendant, Stephen M. Blake, two hundred dollars for four months ; and gave his note, with the endorsement of the other defendant, Charles J. Folsom, for two hundred and fifteen dollars. That on the twenty-sixth day of October, one thousand eight hundred and thirty-six, it was renewed for two hundred-and twenty-two dollars and fifty cents at three months ; and on the fourth of January, one thousand eight hundred and thirty-seven, it was renewed again for two hundred and forty-five dollars. On the eighth day of October, one thousand eight hundred and thirty-nine, it was once more renewed for two hundred and eighty-six dollars and seventy-six cents, for six months ; and then an action at law was commenced. The complainants filed their bill to be relieved from the suit, and to have the note given up to be cancelled.</p> <p>General demurrer interposed.</p>

Judgment creditor’s bill. Demurrer interposed on ground that the bill did not show the defendant resided in county of Kings at the time the execution was taken out. the the The bill, after the averment of the issue of a fi. fa. out of the Supreme Court, added: “ that being the same county in which the defendant resides.” Defendant, in pro. per. referred to Reed v. Wheaton, 7 Paige, 663 ; and MS. case before the Chancellor of Gaylord v. Hendrickson.

Bill and demurrer. The bill was filed by the complainants in their individual names. It showed that they were stockholders of an incorporated company, known as “ the Flax and Hemp Manufacturing Companythat the company had purchased machinery of the defendant Sidney B. Whitlock and he had taken stock in part payment, and they had, also, appointed him their treasurer and agent.

Application to amend the bill. One of the defendants had not appeared; but the other defendant, Wheeler, had put in an answer. Exceptions had been taken to such answer; they were disallowed; and the complainant had paid costs. The complainant, finding that he could not get the desired discovery without amending his bill, moved accordingly.

Bill and demurrer. The bill showed that on the twenty-eighth day of April, in the year one thousand eight hundred and thirty-seven, the complainant, Christopher B. Tappen, was appointed by the then* Governor of the stare of New-York, with the consent of the senate, inspector of flour in the city of New-York; and was to hold the office, together with the fees, profits and advantages to the same belonging, for and during the term limited by the constitution and laws of the…

This was a judgment creditors suit; and the defendant appeared before a master, on a reference to appoint a receiver. Questions were asked him, which he, under advice of counsel, refused to answer. The master was not required to pass upon the questions or to decide whether the defendant must answer them or not. Motion made for an attachment against the defendant.

In this suit a plea in bar had been filed ; and now, while it was at issue, the defendant moved for leave to plead a further plea of set-off, arising upon a judgment recovered since the filing of his former plea.

Bill alleging partnership in the vending of medicines ; and setting forth an agreement descriptive of the duties of the sug- ■ gested partners and the share each was to receive. Pleas interposed, negativing a partnership at any time.

By an order dated the twelfth day of November, one thousand eight hundred and thirty-three, the injunction herein was modified, so as to allow the defendants Joseph and Henriques to collect and receive the amount of a certain promissory note for seventeen hundred and sixty-tbree dollars and sixty-two cents.

Judgment creditor’s bill. The master, on a receiver’s reference, decided that the defendant should hand over a gold watch and that a certain sum of seventy-one dollars and twenty-one cents was his property. The defendant refused to deliver or pay over the seventy-one dollars and twenty-one cents.

On a receiver’s reference, before master Wheeler, the course of conduct pursued by a witness and his counsel was considered improper; and an adjournment was had in order that the court might be moved for instructions.

<p>Bill for divorce, a mensa et thoro, on charge of cruelty.</p> <p>The case now came up on an application, by petition, for present alimony and money to carry on the suit. It was met by an affidavit of the defendants in which he denied the acts of cruelty charged and put himself also upon the ground of jurisdiction. The court, as it will be seen, refused the motion on this point of jurisdiction; and the decision of the Vice-Chancellor sufficiently discloses the facts.</p>

Case of divorce, in which the evidence of adultery mainly • rested on the testimony of a medical man, who had had the defendant under his hands as a patient.

<p>The bill was filed for divorce on the ground of adultery. On the coming in of the master’s report,</p>

Bill for foreclosure. It showed the execution of a mortgage by Benedict to Ralph Lockwood of premises dn the twe^lh ward of the city of New-York ; that the mortgage was assigned by Ralph Lockwood to Ira Lockwood the complainant ; that the mortgagor, Benedict, had conveyed the premises, for five thousand dollars, to Alfred H. Buncombe and such consideration was only in part paid, a part thereof having been left to be paid in discharge of the mortgage and in the conveyance…

This case came before the court on the petition of Charles Kneeland, who asked to be paid a legacy of six thousand dollars, on account of his two infant children and for whom he was guardian ; with an alternative prayer for a legacy of the like amount to his late wife Joanna, now deceased, and who* was one of the grandchildren of John Hone, the testator. A reference to the points for decision will sufficiently appear in the opinion of the court.

Motion to open a decree made by the assistant Vice-Chancellor and to strike out a clause thereof and' to let the defendant in to make a defence. Proofs had been closed in the month of January, one thousand eight hundred and forty; and a decree was taken by default on the twelfth of February in the same year. After this a motion had been made to open the decree which, on hearing, was refused.

Demurrer interposed to part of a bill of discovery. The defendants were stock brokers : and the complainant had sued them at law and claimed to recover a balance of account. He had given a bill of particulars of his demand ; and defendants at law had also served a copy of the bill of particulars of set-off.

This case came up on demurrer interposed by the defendant, William B. Bend, to the bill of complaint. The complainants stated that Hindes and Derhams, of Leeds in England, drew a bill of exchange, dated the eleventh day of November, one thousand eight hundred and thirty-nine, for one thousand pounds sterling on the defendant William B. Bend, payable to their own order at four months after date ; and which, on its face, purported to be “ accepted at Messrs.

The complainants had become liable or had paid duties at the custom house for Castro and Henriques, who failed and made a general assignment for the benefit of creditors to one Louis A. Brunei, who died ; and the defendant, Joseph Bouchaud, became his executor. The complainants insisted that they had a preference, being subrogated to all the rights of the United States. They filed their bill individually and not on behalf of other creditors of Castro and Henriques.

Bill on an alleged partnership; and the complainant had set out circumstances which were evidence of a partnership. The defendant put in a plea denying the partnership ; and a short answer meeting some of the allegations of the bill, but not those which went to evidence a partnership.

Case of appraisement of damage in relation to land required for the construction of the Long Island Rail Road.

<p>The point in the case will be sufficiently seen in the opinion of the court.</p>

<p>The bill in this case was filed by James Mason, one of the children of John Mason deceased, to set aside his father’s will, in which the complainant, as well as his brothers, was left an annuity and wherein the executors had a discretionary power to increase it. At first, the executors paid him one-eighth part of the nett income of the testator’s estate; which was much more' than the fixed amount of the annuity ; but after this they reduced it to the original amount mentioned by the testator and refused, in their discretion, to increase it. The annuities granted by the will had been allowed to be paid during the pendency of the suit. The complainant, James Mason, now presented a petition, showing that the wants of his family required that the annuity should be increased ; that his conduct would justify it; insisted that, as the executors had once used their discretion and in doing so increased the amount of annuity, therefore they were bound by it and could not retract or arbitrarily revoke the appointment of amount before made ; and prayed that they might be directed to pay him one equal eighth part of the nett income and so continue to pay.</p>

<p>Motion, bn the petition of Adam Thomson, to be discharged from his purchase at a master’s sale under a decree of foreclosure.</p> <p>By the will of the late Nicholas W. Stuyvesant, an amicable partition had been made, by his executors, among his heirs ; and although the court of chancery had declared the will to be invalid, yet the heirs had confirmed thepartition by mutual deeds of release. The defendant in this suit, Peter Stuyvesant, was one of those heirs ; and he and his wife had executed a mortgage on a part of his share, which was foreclosed in this suit and a sale had. It will not be necessary to mention here every objection taken by the purchaser; and only those of seeming moment will be referred to.</p> <p>The first objection which the purchaser made was on the ground that the confirmatory deeds of release had never been executed by the wives of the heirs ; and that, therefore, they had rights of dower over undivided shares.</p> <p>Another objection was based upon this : one of the heirs, Robert R. Stuyvesant, had died prior to the partition ; but, in the division, an equal share was set apart for his representatives. His mother, having a life estate, sanctioned the partition as did his widow (having a dower right) and also his brothers and sisters, entitled as his heirs; indeed, the widow liad commuted and released her dower. It was, however, now insisted, that she might claim dower as widow in an undivided share.</p> <p>The purchaser considered the notice of lis pendens in this suit insufficient, because it described the said Peter Stuyvesant and wife as the sole defendants, not adding and others; described the lot as No. 214, but made its east boundary 200 feet instead of 175 feet from the first avenue, which would have been correctas applied to the next lot (215;) omitted other particulars as to the description of the mortgage required by the law of 1840 before a decree could be had; and was dated on the nineteenth day of October, one thousand eight hundred and thirty-nine and stated the bill to be then filed, whereas such bill was not filed until the twelfth of November in the same year.</p> <p>Another objection was, that there had been an irregularity in amending the bill, as of course, by striking out; whereas, it was said that such an amendment could only have been made upon an application to the court.</p> <p>An objection was also taken, because the order to advertise non-resident defendants required a publication of nine months, whereas it had been published in the state paper only eight weeks.</p> <p>And, coupled, with this objection, was another, namely, that as there were these non-resident defendants (but who were not the mortgagors) the master’s report ought to have stated or annexed the proofs taken before him as required by statute.</p>

Laurent Salles by his will bearing date the 28th day of July, one thousand eight hundred and thirty-one, ordered and directed his executors to invest twenty-five thousand dollars and to pay the interest of it to his widow, as long as she remained his widow; and he then ordered and directed that the said sum of twenty-five thousand dollars should revert to and form “a part of his personal estate hereinafter bequeathed or devised to or for the benefit of his children.” The…

This case came before the court on an order to show cause why an injunction should not issue.

The bill, was filed for a perpetual injunction against the defendants’ printing, publishing, circulating or in any manner, either by writing or by any other manner, making public or disposing of certain letters written by the complainant.

Judgment creditor’s suit and motion for an attachment, on the ground that the defendants, James M. Pinkney and Orrin Brown, had refused to execute an assignment of their property to a receiver. This was opposed, on the fact that they had, since the filing of the bill, both made application to the district court of the United States for the southern district of New York, for the benefit of the bankrupt act; and which application was still pending.

The complainant was landlord of premises of which the leases were vested in the defendant, who had under-let and was insolvent. An action of ejectment had been commenced against the latter by the former ; and the present bill was filed to enjoin the sub-rents. An injunction to this effect had been granted ; but, on an appeal, the chancellor decided against the order for an injunction.

The bill was filed by John P. Crosby, as administrator of the estate and effects of Sophie Catharine Caroline Balbi; and it set forth that in France and on the fourteenth day of August, one thousand eight hundred and four, the said Sophie contracted marriage with Jean Luc Jerome Armand Balbi, as by the registry of marriages in the first arrondissement of the prefecture of the department of the Seine, &c. would appear.

Bill for divorce a vinculo matrimonii, filed by husband against his wife. It showed that the parties were married in New York on the twelfth day of January, one thousand eig'ht hundred and thirty-five; that the complainant was a mariner and left New York for Florida about the twenty-eighth of August following, to act as captain of a steamboat.

The commissioners for supplying the city of New York with water (from the Croton river) now required a piece of land belonging to William Beach Lawrence.

Bill to foreclose a mortgage upon thirteen lots of ground in the village of Williamsburgh. This mortgage had been given by the defendant, John Morrell, to secure a portion of the consideration money on a purchase of the property.

Bill of review. The original bill was filed to foreclose a mortgage which had been assigned to the complainant. It appeared upon its face that leave had been given to file the bill by an order of the 9th day of July, one thousand eight hundred and forty-two; but there was no affidavit (save the ordinary jurat) annexed.

<p>^ j'rusfee Pleading.</p> <p>A will directed that if the trustees should be reduced by “ death or removal from the U. S, or otherwise ” to the number of two or one, then the parties in interest were authorized to nominate three or more freeholders, out of which the remaining trustees were to accept one or more to be joined with them; and failing such nomination, the remaining trustees were authorized to nominate respectable freeholders to be joined with them ; and then the securities were to be assigned by the remaining trustees to themselves and such additional trustees, upon the same trusts, &c. Held, that a refusal to act authorized the appointment of another person under the words “ or otherwise”—in fact, that these words were broad enough to authorize an appointment after removal from office for cause, resignation or refusal to serve. Also, that though the will marked out, particularly, the mode of nomination and appointment of after-trustees, yet it was enough in pleading to say that they were duly appointed, without specifying in what manner and by whom appointed.</p>

In this case an order had been granted for the defendants to show cause why an injunction should not issue. The bill was filed by John Depeyster Champlin, as one-of the remaindermen entitled under the will of his grandmother, Elizabeth Depeyster, deceased.

This was an application by John L. Graham, as landlord of premises occupied by the defendant Job L. Black, for payment of ninety-three dollars and seventy-five cents due for rent. ^ ^'stress warrant had been issued on the twenty-eighth day of January, one thousand eight hundred and forty-two, and the goods of the defendant had been levied upon : but it appeared that, on the same day but prior thereto, the defendant had put the receiver in this cause in possession of the…

Bill to compel specific performance of a purchase of real estate at auction. It was filed by Elizabeth Schuyler Champlin and William G. Jones, sole acting executors of the will of Elizabeth Depeyster, deceased, (see an extract from this will embraced by the case of Champlin v. Champlin, page 571 ante.) Elbert Herring had been one of the acting executors, but as he left the jurisdiction-to receive an appointment at Washington, he was superseded by surrogate’s order.

The complainants (abanking company) by their bill, charged their late cashier, the defendant Dennis W. Hunt, with abslracting their funds and using them in the purchase of a bond and mortgage for twenty-three thousand dollars.

A writ of ne exeat had been issued against the defendant ■ Louis Marino; and he had been held to bail on it in five thousand dollars. His sureties were George Hussey and William ^Lac^ay‘ On mo^on> the amount of bail was reduced to two thousand five hundred dollars and the same sureties as above executed another bond to abide the decree.

In support of the motion, the complainant showed that the mortgagor had become insolvent; and that, if the premises were to be sold, they would not produce above nine thousand dollars or ten thousand dollars and which would be insufficient to satisfy his claim.

This was a suit to foreclose a mortgage ; and a petition was now presented by one Nathaniel Smith, praying a re-sale under the decree in the cause.