Volume 4 — Paige's Chancery Reports

The bill in this case was filed to set aside a sheriff’s sale of a lot of land called the Wynkoop farm, in the county of Tioga, and to settle the equitable rights of the parties to the lot. The facts of the case, so far as is necessary to understand the questions of law decided, are stated in the opinion of the chancellor.

The bill in this cause was filed against Boyd and Suydam, and against Hemden, a former partner of the complainant, to set aside a settlement made between Hernden and the other defendant, after a dissolution of the complainant’s partnership with him; and to restrain Boyd and Suydám from proceeding at law against the complainant and Hemden, to collect a note given on such settlement.

These were separate and distinct suits, prosecuted by different solicitors; but as they both came before the court at the same time, related to the same property, and the questions arising in each were the same, they were considered and decided together. The bill in the first cause, in which Wake-man was the complainant, was filed in May, 1828, and the bill of Varnum was filed a few days thereafter.

ln this case several questions were, submitted to the chancellor, by one of the taxing masters, as to the costs of proceedings for the sale of real estate of infants by a special guardian. Several infants were interested in the property; and, according to-the settled practice of the court, a separate bond to each infant was executed by the guardian and his sureties.

Isaac Freyer, who died in 1802, by his will devised to jjg Son Isaac I. lots number 1 and 7 in the city of Albany, charged with the payment of a legacy of £100. He also devised to his.son William, lots No. 3 and 4, charged with £30; to his son John, lot No. 8, charged with £20; to his son Peter, lot No. 2, charged with £65; and to his son Henry, lots No. 6 and 9, charged with £25.

The complainant in this case made an application to the court for leave to amend her bill; but the application was opposed on the part of the defendants, J. & P. W. Radcliff upon the ground that an entirely new answer would be requisite, if the proposed amendents should be made.

Previous to 1829, B- Reynolds had given two several mortgages upon a lot of land in Plattsburgh, of which land he was the owner in fee. In February, 1829, the defendant Gilman recovered a judgment against Reynolds, in the supreme court. And in May thereafter the defendant Couch recovered a judgment against him in the Clinton common pleas; both of which judgments were liens upon the mortgaged premises at the time of the statute foreclosure hereafter mentioned.

The complainants filed their bill in this cause, in January, 1829, against the defendant, as the sole acting executor of Harpert Van Deusen, the elder, to recover the value of a certain female slave, and the proceeds of a bond which were bequeathed to Mrs. Van Epps, one of the complainants, by her aunt Maritie Witbeck.

The bill in this cause was filed to restrain the defendants from prosecuting a suit at law in the supreme court. The complainant was the owner of mills at the village of Le Roy; and, as the defendants alleged, he had without authority overflowed their lands by the waters of his mill pond. In August, 1801, the complainant and three other persons were the owners of a large tract of land, usually denominated the triangular tract.

The bill in this case was filed to foreclose a mortgage, exeecuted by P. Van Rensselaer and wife to the complainants. All the defendants were made parties as claimants upon the equity of redemption only, and none of them contested the right of the complainants to a foreclosure and sale of the mortgaged premises for the purpose of satisfying their mortgage.

This case came before the court upon exceptions to the master’s report allowing certain exceptions to the defendants’ answer.

The complainant in this case, by her next friend, filed a bill against her husband, charging him with cruel and inhuman treatment, and also with the crime of adultery. And she prayed for a separation from bed and board forever, or for a decree dissolving the marriage contract.

This case came before the court upon a motion to dissolve an injunction. The facts sufficiently appear in the opinion of the chancellor.

This was an appeal from a decretal order of the vice chancellor of the seventh circuit, overruling the demurrer of the defendants to the complainant’s bill. The complainant was the widow of W. Badgley, deceased; and she filed her bill in this cause to recover her dower in a lot of land, of which the husband was seized during coverture.

This was an appeal from the sentence of the surrogate of the county of Cayuga, upon the final settlement of the accounts of the acting executor of Amos Rathbun, deceased.

This was an application to dissolve an injunction, upon the coming in of the answer. objected to the bringing on of the motion, upon the ground that the ten days allowed by the 38th rule of the court for filing exceptions to the answer, had not yet expired. He cited Satterlee v. Bargy, (3 Paige's Rep. 142.) stated that in this case the complainant had waived the necessity of an answer on oath from the defendants.

This was an application for an attachment against the defendants for not complying with the requisitions of a summons of the master requiring them to bring in their accounts before him, up to a certain period, in the form of debtor and creditor.

This was a suit for the partition of a house and lot in the city of Albany, which by the will of W. James, deceased, was devised to his wife for life, with power to dispose of the same by will to the descendants of the testator and his said wife, as she might think proper. This devise, and certain specific and pecuniary bequests to his wife, were by the will of the testator declared to be in lieu and full satisfaction of her dower in his estate.

This was an appeal from the decision of the taxing officer in reference to the taxation of the costs on an appeal to the chancellor from a decree of the vice chancellor. The items objected to, but allowed by the taxing officer, were a retaining fee for the solicitor and counsel on the appeal, and the charges for copies of the pleadings and case for counsel, and for abbreviating the pleadings and proofs for the use of counsel.

This was an appeal from a decision of the vice chancellor of the first circuit, dismissing the complainants’ bill as to the defendant M. Mitchell, and refusing leave to amend the bill, both as to him and other defendants,

<p>A defendant may plead, answer and demur to the same bill; but these several defences must each refer to and in terms be put in as a defence to a separate and distinct part of the bill.</p> <p>If an answer commences as an answer to the whole bill, it overrules a plea or demurrer to any particular part of the bill, although such part is not in fact answered.</p> <p>Where a plea which constituted a full defence to a particular part of the bill was disallowed on the ground of a technical defect or informality in the manner of pleading, the court permitted it to stand for an answer; and prohibited the complainant from calling for a further answer, by exceptions, as to that part of the bill.</p>

This was an appeal from a decree of the vice chancellor of the third circuit.. Held: at which the six persons above named and eleven others were present. At that meeting, Brown was chosen president of each company; and he, together with Swan, Benton, Reed, Gheesebrough and Hyatt, were appointed, a finance committee.

This was an appeal from an order of the vice chancellor of the first circuit, ordering certain amendménts to the complainants’ bill to be taken off the files of the court. The order ivas founded upon a certificate of the clerk that the decision of the vice chancellor, allowing exceptions to the defendants’ answer, was made on the 3d of December, 1832, and that the amendments were not filed until the 22d of the same month.

<p>A creditor coming in under a decree, to prove a claim which is not set out m the pleadings or proofs In tire cause, must present the particulars of his claim to the master; and he must also support the same by his affidavit, stating that the amount claimed is justly due, and that neither he nor any other person by his order or for his use has received the amount thus claimed or any part thereof, or any security or satisfaction for the same.</p> <p>After a decree in the cause, settling the amount due to the complainants, the court refused to let them in to prove a new claim not set up in the pleadings, and which was also a stale claim of more than ten years standing.</p> <p>Whether a creditor who has filed his bill to recover specific claims against the estate of a decedent, can go before the master, under the decree, as a general creditor for another and distinct demand not set up in his bill or referred to in the decree ? Quaere.</p>

<p>This was an appeal from an interlocutory decree of the vice chancellor of the eighth circuit. The cause was heard on bill and answer as to all the defendants, except Saphrona Chase, the widow of C. Chase. The facts of the case, as admitted by the answer, were as follows : In the latter part of 1827, C. Chase, the decedent, married the daughter of A. Barrett, one of the defendants, and the sister of the other defendants. In the month of April subsequent to the marriage, A. Barrett being then the owner of several farms, and extensively engaged in the farming business in which he was assisted by three of his sons, 8. S. Barrett, A. Barrett, jun. and Lucius Barrett, entered into a written agreement with his son-in-law and those three sons, as follows:</p> <p>“ Memorandum of agreement made and entered into this fifteenth day of April, one thousand eight hundred and twenty-eight, between Amos Barrett of the first part, and Chauncey Chase, Sidney 8. Barrett, Amos Barrett, jr. and Lucius Barrett, of the second part, all of Ridgeway, in the county of Orleans, witnesseth, that the said Amos Barrett, for and in consideration that the said parties of the second part will, and do faithfully work and carry on the farms of the said Amos, in the town of Ridgeway and Yates, which he, the said Amos, now owns or may purchase and put on said farms, such implements of husbandry as they may own, for the term of five years from the date hereof, in such manner as may be thought by the said Amos most discreet and prudent, doth agree to put on for the use of said farm or farms all such teams and tools and implements of husbandry as he now owns, and also let George Barrett, Stephen Barrett and Luther Barrett work and labor during the time aforesaid with' the said parties of the second part, for the mutual benefit of the parties to this agreement; and it is further agreed and expressly understood that the teams and other implements of husbandry are to be purchased, and from the products of the farms, during the time aforesaid, and each of the parties to have his or their proper-living and expenses of the products as aforesaid. And the said Amos Barrett doth agree to and with the said parties of the second part, that at the expiration of the said term the said parties of the second part shall have the one half of all the chattel property of the said Amos Barrett now owned by him, and one half of all the chattels which may grow out or arise from the products of said farms, produced by the labor, skill and diligence of the parties to these presents; to be divided between them, share and share alike, after deducting all dues which may be owing by the said Amos for the purpose aforesaid; household furniture of the said parties excepted. And the said parties of the second part doth agree well and truly to labor for and with the said Amos Barrett, for the consideration aforesaid, and to use all their skill, art and diligence to promote the interest of the said Amos Barrett in and about carrying on the farm or farms as aforesaid, during the term of five years from the date hereof, and fully to be complete and ended, and not to. labor for themselves in and about their or any of their individual business, or for their individual benefit, otherwise than shall be mutually agreed by the parties to these presents. And the said Amos Barrett, for himself, his heirs and assigns, doth further agree that in case, the said parties of the second part do and shall well and truly perform and keep their said agreement above mentioned, to convey to them by deed good and lawful and sufficient, to invest in them the fee simple of the one half of all such lands as may or shall now be owned, or may be owned by the said Amos Barrett at the' time of the expiration of this agreement, for the mutual benefit of the said parties of the second part. It is understood that the- parties of the second part are to put in all of their property for the benefit of the party of the first part; and the boys are to have the benefit of the winter’s schooling. In witness whereof the parties to this agreement have hereunto interchangeably set their hands and seals the day and year first above written.</p> <p>In presence of Amos Barrett, [l. s.]</p> <p>Luther Barrett. Chauncey Chase, [l. s.]</p> <p>Sidney S. Barrett, [l. s.]</p> <p>Amos Barrett, jr. [l. s.]</p> <p>Lucius Barrett,” [l. s.]</p> <p>At the time of making the agreement, A. Barrett, in addition to the several farms owned by him, upon some of which a portion of the purchase money was yet due, owned considerable personal property ; consisting of horses, cattle, farming utensils, &c. He had also, growing on his farms, a large crop of wheat, which had been sown the preceding fall. At the time of making the agreement, C. Chase was in bad health, and continued unwell and unable to labor until his death, which happened on the 8th of August thereafter. He died without issue, leaving his father, the complainant, his heir at law, and entitled also to a moiety of his personal estate, under the statute of distributions. After the death of C. Chase a conversation was had, between the complainant and A. Barrett, respecting the property and rights of the decedent. And it was agreed between them that A. Barrett should pay the debts, and that if there was any of his property remaining, after payment of such debts, it should be given to his widow. In pursuance of this agreement, A. Barrett paid off the debts of the decedent. The complainant having subsequently taken out letters of administration on the estate of his son, he filed his bill in this cause,- claiming an account and distribution of all the personal estate of A. Barrett, and of the personal estate received of C. Chase and the other parties, under the agreement of April, 1828 ; and praying that it might be distributed as partnership property. The vice chancellor decided that the agreement of April, 1828, constituted the parties copartners in the personal estate, and in the issues and products of the real estate. And he directed the defendant, to account to the complainant for one eighth part thereof, that being the value therof at the death of C. Chase; deducting therefrom the amount paid out by A. Barrett for funeral charges, &c. and other debts of C. Chase. From this decree the defendants, A. Barrett, 8. 8. Barrett, A. Barrett, jun. and L. Barrett appealed to the chancellor.</p> <p>The following is the opinion of the Vice Chancellor upon the decision of the case before him :</p> <p>Gardner, V. C. Amos Barrett, being possessed of a large real and personal estate, in the county of Orleans, on the 15th of April, 1828, and as the bill alleges, with a view to the advancement of his sons, entered into an agreement with Cbauncey Chase, his son-in-law, Sidney, Amos, jun. and Lucius Barrett, his sons, of which the paper here annexed is a copy. On the 1st of August, 1828, Chauncey Chase died; and this bill is filed by the complainant, as his administrator, against the defendants for an account of the property and proceeds, for the appointment of a receiver, and that the personal property may be sold by the order and decree of this court.</p> <p>A single question is presented; whether the agreement of the 15th of April, above referred to, created a partnership between the parties to that agreement. It is unnecessary to discuss the legal effect of this contract upon the rights of third persons, as there is a just and marked distinction between a partnership as respects the public and as respect the parties. (Kents Com. 9.) For the former purpose, appearing as a partner, or participating in the profits of a trade, is sufficient. For the latter, the parties must have joint shares in the stock and must be jointly interested in the general trade or particular adventure. (Gow, 14.) In relation to the’ real estate, covenanted to be conveyed by Amos Barrett at the expiration of five years, it is not pretended that any partnership existed. (15 John. Rep. 159. 5 Vesey, jun. 189. 9 Id. 505.) And the inquiry will be, whether the agreement, so far as it respects the personal property and the profits to be derived from working the lands, constituted a partnership to this extent, or whether it was merely a mode by which Amos Barrett was to compensate the other parties to the agreement for their labor.</p> <p>In the first place, had the parties to this agreement a mutual interest in the capital invested 2 The capital in this case consisted of all the personal property of the intestate and his associates, and their labor—upon the part of Amos Barrett, his teams and farming utensils, and the labor of his three boys. Amos Barrett expressly covenants that the three boys shall labor for the mutual benefit of the parties to the agreement; and the parties of the second part covenant well and truly to labor for and with the said Amos Barrett in carrying on the farms mentioned in the contract. Again, it was stipulated expressly that the teams, farming utensils, &c. of both parties should be purchased from the products of the farms. And each of the parties was to have his or their proper living and expenses out of those products; and that one half of the property which might grow out of or arise from the products of said farms, produced by the labor, skill and diligence of all the parties, at the expiration of the five years, should be divided between them share and share alike.</p> <p>It appears obvious to me, that in the labor thus to be pet-formed for their mutual benefit in the property put in, and which was to be paid for by the products of the joint labor, the parties to the agreement must be considered as having a joint interest, and of course, a mutual interest in the capital invested. In this respect, it is believed that the present case is to be distinguished from those cited by the defendants. In the case of Hesketh v. Blanchard, (4 East, 143,) the property shipped was purchased by the plaintiff for Robertson, and at his request, and was insured for the latter ; the plaintiff was to have half the profits of his adventure for his trouble. The court said, quo ad third persons, it was a partnership; but between the parties, an agreement for a compensation for the plaintiff’s trouble and credit. Here it will be obvious that the parties had not a mutual interest in the provisions shipped. On the contrary, they were the sole property of Robertson, and the plaintiff had no interest beyond a share in the profits. In Mozer v. Thorpe, (5 Taunton, 74,) the distinction between a joint interest in the goods, and an interest in the adventure, is taken and insisted upon by the court, go, in the case of Muzzy v. Whitney and others, (10 John. Rep. 228,) the defendants contracted with the turnpike company to make the road specified in the written agreement, and afterwards agreed to let the plaintiff have a share of the profits, if any, in making the road, in proportion to his help. This was determined to be a mode of paying the plaintiff for his help and labor. It is apparent there was no unity of interest in this case between the parties to the contract. The responsibility of completing the road, rested solely upon the defendants. The plaintiff was a sub-contractor merely. He worked for the defendants, who were entitled to receive the whole amount for constructing the road from the company, and their profits were only referred to by the contract as the measure of the plaintiff’s compensation. Had the plaintiff and the defendant contracted directly with the turnpike company, there would then have been an union of interest, within the rule; they would then have had a joint interest in the labor and advances necessary to complete the contract, and this would have coqstituted them partners as between themselves. (Doug. 653.) So in the case of Dry v. Boswell, (1 Campb. N. P. 329,) A. employed B. to work a lighter, and the gross earnings to be divided, (not the nett profits,) held not a partnership; and. the case in 4 Espinasse, 182, is of the same character. The same principle pervades these, and, I believe, all the cases that can be found upon this subject, that there must be a mutual interest in the capital, whether it consists in money, labor or credit, as well as share in the profits, to constitute a partnership as between the parties. (Gow, 14. 15 John. Rep. 422. Kent's Com. 13. Watson, 21. 2 H. Black. Rep. 244. And all the cases cited for the defendantszwill be found, upon a careful examination, to be destitute of this distinctive feature of a partnership. I have attempted to shew, that by a fair construction of this agreement, a joint interest was created in the capital put in; and there is an express stipulation to share in the proceeds of this capital after a certain interest. The agreement is informal; and from the circumstance of its being drawn inter partes, some doubt may obtain as to the precise import of some of its provisions. But I am of the opinion that it constituted the parties to it partners; and that Amos Barrett and the other defendants, with the exception of Sophronia Chase, must account to the plaintiff in this character.</p> <p>The agreement, connected with the facts appearing in the bill and answer, did not constitute a partnership between the parties to the agreement. For the purpose of constituting a partnership as to third persons, appearing as partners or participating in the profits of a trade is sufficient. As between the parties themselves, they must have joint shares in the stock, and must be jointly interested in the general trade or particular adventure. (Gow on Part. 12.)</p> <p>The vice chancellor seems to suppose that the agreement in this case was not to provide a compensation for services to be performed, but was distinguishable from those cases by reason of the parties to the agreement having brought some stock in the joint concern. This is an erroneous construction of the agreement, and untrue as a matter of feet. The agreement provides, in the commencement, that if the intestate and the sons of Amos Barrett will and do faithfully work and carry on the farms of the said Amos for 5 years, and put on said farms such implements of husbandry as they may now own, then Amos Barrett agreed that he would also put on said farms all the tools, &c. he owned, and also let his three sons (minors probably) labor during the time aforesaid for the mutual benefit of all parties. At the close of the agreement, it is also stated that the parlies of the second part are to put in all their property for the benefit of the first part, (Amos Barrett.) This ©lause is erroneously stated in the bill.</p> <p>It is clear, from these provisions taken together and in connection with other parts of the contract, that it was an agreement to purchase, on the part of his sons and his son-in-law, the intestate, and an agreement on the part of the father to sell for a stipulated consideration one half of all his real and personal estate. This construction is supported by the covenant, on the part of the sons, to labor for and with the said Amos Barrett for the consideration aforesaid j to use all their skill, &c. to promote the interest of the said Amos in and about, &c. They were to have one half of the chattel property accruing for profits of the farms, deducting all debts which the said Amos might owe in consequence of carrying on the business. If, however, there was a loss in carrying on the business, if no chattel property accrued from the profits of the farms, they were not to sustain the loss. They were to have, at all events, if they complied with their contract, one half of all the real and personal estate of Amos Barrett, their father ; that is, one half of all he then had; if more was acquired, they were also to have half of it; but so much was their right by contract.</p> <p>It is difficult to perceive how the real and personal estate can be separated. The contract was entire. The intestate acquired no more right to the personal estate of A. Barrett than to the real. The right to either depended upon the performance of the agreement. Pherhaps the first clause, in which it is said that A, Barrett agrees to put on for the use of said farms all ouch tools and implements, &c. and also let his three sons labor for the mutual benefit of all the parties to the agreement, may be supposed to evince an intention to put that part of the property of the father into common stock. But it will be perceived that it is only the use of the tools and implements he parts with for the purpose of carrying on the farms. The latter Clause, for the mutual benefit of the parties to the agreement, applies to the labor of his sons. The next, clause is relied upon, that the tools and implements of husbandry were to be purchased from the products of the farms. This evidently means no more than that any future additions to the farming utensils which the business might require should be purchased from the products of the farms. Amos-Barrett, in other words, was not to furnish'from his separate property funds to keep the tools in order; and this is the whole extent of the clause.</p> <p>Any other construction of this agreement is absurd ; for it could not be supposed that Amos Barrett, having as is stated a large personal estate, intended to put that into common stock with the small amount owned and possessed by the intestate, and without any equivalent; for if the title to the personal estate became complete by the agreement, it being a copartnership, then, so far as that was concerned, it was-wholly unnecessary for the intestate to labor the five years. The main inducement to the agreement, as regards the personal estate, was gone.</p> <p>The vice chancellor erred in supposing the parties put in anything as stock. In the commencement of the agreement, they agree to put on, for the use of the farm, tools, implements, &c. At the close of the agreement, they agree that Amos Barrett shall have all their property. No property was put in as stock. There is no joint capital; it is either a separate capital to be taken out by each, or it all goes to Amos; Barrett. The most that any part of the agreement expressed was, that the use of the tools, &c. should be put in; and if it were left there, each party had a right to resume his own. He did not part with the property. If the property was parted with by the agreement, it was expressly transferred to Amos Barrett, So the agreement was understood by the surviving parties. They all deny that they ever understood or. supposed the agreement made them parties, or that they received jointly in any manner any property from said intestate. If the agreement is dubious in its terms, acts of the parties to it may be resorted to for the purpose of aiding us in its construction.</p> <p>But whatever may be the effect of this agreement as to third persons, it could not create a partnership between the parties, if the facts negative any intention or agreement that it should have such operation. (Chitty on Contracts, 67, and cases there cited. 2 Barn. & Cress. 401. 9 Com. Law Rep. 122. 10 John. Rep. 226. 20 Id. 611.) There is no technical rule on this subject as between the parties to the agreement. (2 H. Bl. 244.) What then is the plain intent and object of this agreement 1 It was a mere family compact or arrangement. The father proposed, eventually, to provide for his children,, giving a trial of five years in the first place. If all the personal estate of the father, Amos Barrett, was by this arrangement put into common stock, then the real estate should be also. The same reasons will apply, so far as the good sense and true meaning of the contract is concerned; yet no one would contend for such an absurdity.</p> <p>Again.; the plain tiff waived all claim upon the property in question, and cannot now call upon any one for it.</p> <p>It is conceded that the covenant of Amos Barrett to deed to the other parties one half of his lands, at the end of five years, did not create a partnership as to the real estate. (3 Bro. C. C. 199. 5 Ves.jun. 189. 9 Id. 505. 15 John. Rep. 159.) But as to the personal property, I contend a partnership may be created by the agreement. The parties of the second part, by their agreement, surrendered into the hands of Amos Barrett all their property. Barrett, on his part, furnishes the farms and all the implements of husbandry he owns, to be used on the farms. The parties of the second part also put on for the use of the farms all their implements of husbandry. Here is a joint and present interest, although the division is to be made in futuro. Both parties put on to the farms tools and implements, to be used in their cultivation for the mutual benefit; all of which are to be paid for out of the proceeds of the farms. If the farms, therefore, yield nothing more than the support of the parties, the parties of the second part sustain the loss of the property vested. The case of Muzzy v. Whitney and others, (10 John. Rep. 226,) is distinguishable from this. In that case there was not that mutuality which is necessary to constitute' a copartnership. In this case all these prerequisites are supplied. The parties of the second part furnish all their property ; they covenant to give their whole time to the business, and the whole property is to be divided. The cases of Hesketh v. Blanchard and others, (4 East, 144,) Dry v. Boswell, (1 Campb. N. P. 329,) and Wilkison v. Frader, (4 Esp. JV. P. 182,)' are unlike the present. It is a well settled rule of law, that if a person who is employed by another to sell goods, is to have for himself whatever money he can procure for them beyond a stated sum, he is not a partner, but a mere factor or agent; but if he has made an investment in the concern, and his profit or loss depends on a contingency, he is a partner. (Benjamen v. Porteus, 2 Hen. Bl. 590.) The true definition oí partnership was given on the argument of the case of Waugh v. Coven, (Id. 244,) as cited from Puffendorf, lib. 5, ch. 8: “A partnership is where two or more bring together money, property or labor, to the end that thereafter the gains should be divided amongst them pro rata.” The same definition is adopted by Kent in his Commentaries, (vol. 3, p. 6.) If, then, this agreement did create the relation of partners, the complainant was not bound to wait until the expiration of the five years before he filed his bill; for the death of one of the partners dissolved the copartnership.. (3 Kents Comm. 28, 30.) Should the court decide that the article of agreement did not create a partnership, this will yet be a case of equitable jurisdiction, and one in which the court must grant relief. The bill at least can be retained as against Amos Barrett, and he be made to account. If the complainánt is not entitled to relief, and his bill is dismissed, it will be without costs. (Goodrich v. Pendleton, (3 John. Ch. Rep. 520.)</p>

Upon affidavits, entitled in the above cause, showing that the defendant, Abel T. Bennett, had been guilty of a breach of an injunction issued in a suit in which William James was complainant and the said Bennett was defendant, the complainants obtained an order that the defendant show cause why an attachment should not issue against him; and that a copy of the order, and of the affidavits on which the same was founded, should be served on the defendant eight days previous…

The bill in this case was filed to procure a foreclosure or satisfaction of a mortgage given to the complainants by A. A. Moore, upon lots No. 12 and 13, in the Binghampton patent, to secure the purchase money on those lots. After the giving of the mortgage, Moore sold lot No. 12 to the defendant, Whitney, for a sum which was something less than the amount due to the complainants on their mortgage on both lots.

This was an application to dissolve or modify an injunction Which had been granted by the injunction master- of the first circuit. The bill stated that the complainants were seized of certain lots in the city of New-York, adjoining Ann street, on which Christ’s church stands; which church was erected thereon more than thirty-eight years since.

<p>This cause came before the court upon exceptions to a master’s report, allowing certain exceptions taken by the complainant to the defendant’s answer for impertinence. The bill was filed for the purpose of restraining the defendant from cutting wood upon certain lands, in the manor of Rensselaerwyck, which were alleged to belong to the complainant. The defence set up by the answer of the defendant was, that the lot upon which he had cut and was continuing to cut wood at the time of the filing of the complainant’s bill, was a part of the common lands of the manor. That such lot had been fraudulently conveyed to the complainant, for the purpose of depiiving the defendant of his right of estovers for building, fencing and fuel, as appurtenant to a farm of the defendant in said manor, held under a lease from the former proprietor of the manor. That the defendant was entitled to such estovers from the unappropriated lands of the manor; and that the alleged trespass was only the exercise of the right on his part to take estovers for building, fencing and fuel for his farm. The defendant admitted that his farm lay in Bethlehem, and that the wood and timber was cut in Troy, thirteen miles from such farm. But he alleged, as reasons for cutting at the place specified, and in such quantities, that he had ascertained that all the lands in the vicinity of his farm were appropriated; and that it had been the practice of the proprietor of the manor, as soon as the defendant found any unappropriated lands and began to take estovers from the same, to dispose thereof in such a way as to defeat the right of the defendant. That he therefore concluded to cut wood enough at once for the use of the farm for two or three years. That in cutting the quantity he did, it was not his intention to abuse the privilege granted in the lease under which he claimed, but merely to provide against the attempts of the present proprietor of the manor to defeat altogether the effect of the grant, by the numerous shifts and stratagems he had resorted to, and which the defendant bad been informed and believed he intended to resort to, as often as the defendant should attempt to exercise his right of taking estovers. The defendant further charged that one mode which had been adopted by the proprietor of the manor to effect his purpose, in that respect, had been by making sweeping grants of the unappropriated lands in the man- or to different members of his own family, and which grants were intended to have no other effect than to defeat and destroy the defendant’s right to take estovers, and the rights of other proprietors of the manor claiming under leases similar to his. The complainant’s first exception embraced the whole of this part of the answer, commencing with the allegation that it was not the intention of the defendant to abuse the privilege granted in the the lease under which he claimed, &e.</p> <p>The defendant further stated, in his answer, that he had been informed and believed, and so charged the fact to be, that in 1819, S. Van Rensselaer, the present proprietor of the manor, executed to his son, S. Van Rensselaer, junior, a general lease of all the unappropriated lands in the towns of Rensselaerville, Berne, Guilderland and Bethlehem, for the term of seven years, which term was afterwards extended ten years longer. That the lease was executed for the express purpose of depriving the defendant and other tenants of the manor who held under leases similar to the defendant’s, of their right of estovers on the common or unappropriated lands in those towns. And that under his lease, 8. Van Rensselaer," junior, had been in the habit of prosecuting the defendant and other tenants, whenever they attempted to exercise their right to take estovers from such unappropriated lands, in either of those towns; and by that means he put the defendant to great trouble and expense, and compelled him to resort to other unappropriated lands in the said manor, at a great distance from his farm, to procure estovers of wood and timber. To this part of the answer the complainant also excepted, for impertinence. Both exceptions having been allowed by the master, the defendant excepted to his report.</p>

This case came before the court upon the defendants’ plea. By the complainant’s bill, he claimed as one of the descendants of Annetje Jans, or Bogardus, formerly wife of the Do-mine Everardus Bogardus, one undivided fifth part, of one sixth, of sixty-two acres of land, in the city of New-York, once known by the name of the Domine’s Bowery, confirmed to the children and heirs of Annetje Jans, by Governor Nicholls, in 1667.

In May, 1829, C. R Golden purchased of the heirs of S„ Eldert a piece of land, in the town of Jamaica, containing about 54 acres, being a part of the miion race course, and gave a mortgage on the same to secure a portion of the purchase money. In July thereafter Golden gave another mortgage on the same premises to A. O. Spencer, to secure the payment of the sum of $1500.

In 1825, Absalom Early, one of the defendants in this cause, claiming to be the owner of lot No. 8, in lot B. in great lot No. 1, in the 22d allotment of Kayaderosseras patent, sold to the complainant the west part thereof, and executed to him a deed for the same, containing the usual covenant of warranty.

Tins was a bill filed by the executors of Mrs. Hughes, for the foreclosure and satisfaction of a mortgage, given to their testatrix, by the defendant Catharine Tillinghast, in June, 1815, but which was not registered or recorded until May, 1818. After the giving of the mortgage, and before the registry thereof, the mortgagor conveyed a part of the mortgaged premises to the defendant Charles Tillinghast, her son, with warranty.

This was a petition of the receivers appointed in this cause, under the 41st section of the title of the revised statutes, relative to proceedings against corporations in equity. (2 R. S. 464.) The petitioners stated that they had advertised, pursuant to the statute, for all the creditors and claimants upon the funds of the corporation, to come in and exhibit their demands.

This Was on appeal from the decretal order of the vice chancellor of the first circuit, allowing certain amendments to the complainant’s bill. The amendments were allowed after an answer had been put in to the original bill; and among the amendments was one by which the complainant waived an answer on oath to the amended bill.

This was an application for an- injunction, to restrain the defendants from proceeding to hold an election for directors of the Utica and… Held: would be void, yet the court will enjoin the defendants from holding it, as it might be an annoyance to the complainant. (1 John. Ch. Rep. 517.) Bat we will sustain an injury if the election proceeds, as we are entitled to have a voice in the election of directors; and the first directors may appoint agents whose acts will bind us.

This was an appeal from the decision of a vice chancellor as to the taxation of costs ; the complainant having obtained a decree against the defendant, with costs to be taxed. The suit was commenced before a vice chancellor, to Whom an application was made for an injunction, at his chambers, and allowed. One of the items claimed by the complainant, and disallowed by the taxing officer, was for a counsel fee on the motion for an injunction.

This was an application, for an injunction and for areceiver, founded upon the supplemental bill in this cause and upon a petition of the complainant The original bill was for the settlement of a partnership account between the complainant J. L. Dias, and G. Merle and L. Asbury, the defendants in the original suit.

This case came before the chancellor on an order for the complainant to show cause why a ne exeat granted against the defendant should not be discharged, or the amount for Which the defendant was… Held: that an attorney who owed a debt could not be held to bail. The court say, in Gardner v. Edwards, (5 Ves. 591,) that it is too general a ground for supporting this writ, that it will operate to prevent injustice.

This was an appeal by N. Smith, and wife, and by Barker and Carpenter, two of the executors of C. Thomas, from the decree of the vice chancellor of the first circuit. The facts in the case and the reasons for the decree of the vice chancellor are stated in his opinion as reported in 1 Edward?s CL ■ Rep. 189.

This was an application to dismiss an appeal from an interlocutory order of the vice chancellor of the first circuit, for irregularity. The grounds of the application were, that the appeal bond had not been executed by the appellants, and that the appeal had not been brought within the fifteen days allowed by the statute for appealing from an interlocutory order.

The object of this suit, originally, Was to foreclose a mortgage ; and several judgment creditors, and others, having claims upon the estate, were made parties. After a sale and satisfaction of the complainant’s mortgage, one of the defendants obtained an order of reference, under the 136th rule, to ascertain and report the amounts due to the several defendants, which were liens upon the surplus monies; and as to the priorities of such liens.

This was a petition by Van Amringe and wife, parties in whose favor a decree of a surrogate had been made upon the final accounting of an administrator, for leave to proceed before the surrogate, on the ground that the appeal entered in the court below had been waived by the neglect of the appellant to file his petition of appeal in this court within the time prescribed in the 118th rule.

The defendant in this cause Was adjudged guilty of a contempt, for a breach of an injunction. And he was fined $130,- : 54 as an indemnity to the relators, and to satisfy their costs - and expenses, in conformity to the statute.

Upon the bill of interpleader filed in this cause, and while the same was pending before the chancellor, the fund in dispute was paid into court, and was directed to be invested by the assistant register.

By a mistake of the master, the time fixed by him for the service of the summons on the defendant to attend a reference was a few days short. But the defendant had notice in .time to have enabled him to attend; so that the irregularity in the summons was merely technical. The defendant’s solicitor made no objection; but neglected to appear before the master on the reference.

This was a motion to dismiss an appeal from a final decree of the vice chancellor of the eighth circuit. The original suit was a bill of interpleadér to settle the conflicting claims of three classes of defendants to a sum of money received by the complainant from the United States, on account of the destruction of a school house. The original proprietors of the building formed one class of claimants, and claimed the whole fund.

This was an application to discharge Barent Bleecker as a trustee, and to substitute Barent Sanders and his wife, who claimed to be solely interested in the trust fund, as trustees in his place. Upon the presenting of the petition, the chancellor directed notice of the application to be given to the children of Mrs. Sanders; and appointed a guardian ad litem for such of the children as were infants.

Tins was an appeal from an order of the surrogate of Albany county, granting letters testamentary to J. B. Wood, the respondent, as executor of 8. 8. Wood, deceased, without requiring security from him as such executor. The testator died in the spring of 1833, leaving a widow and three infant children ; the eldest of which children was six years of age.

The bill in this cause was filed to compel a specific performance of a composition agreement, between the complainants and the defendants, as their creditors.

The complainant in this cause was a judgment creditor of H. Brace, T„ Joy, R. Hunter, N. Brown and T. J. Shankland, who were copartners in the forwarding commission business upon the Erie canal. The judgment was entered in the supreme court, in September, 1828, at which time one of the partners resided at Rochester, in Monroe county, one at Albany, and another at New-York.

The bill in this cause was filed to obtain the decision and direction of the court as to the construction of certain parts of the will of Laurent Salles, deceased. The testator died in 1833, leaving property of the value of about twelve hundred thousand dollars, one hundred thousand of which was in real estate, and the residue was in' stocks, bonds and mortgages and other personal property.

This was an application on the part of Daniel Small, one of the defendants in this cause, to set aside the proceedings upon the complainants’ exceptions to his further answer, for irregularity. The complainants, within ten days after the further answer was put in, referred the same for insufficiency on some of the old exceptions; and they took out a warrant on such reference, and served it on the defendants’ solicitor.

The bill in this cause was filedin 1821, by Alexander Han-nan and Margaret his wife, against Ann Osborn and Catharine Raborg, for the partition and sale of a lot of land, in the city of New-York, and for an account of the rents and profits thereof; and the bill prayed that certain bonds and mortgages which had been assigned to Alexander Hannan, and which were a lien upon the premises, might be paid out of the proceeds of the sale.

This was a bill for the partition or sale of a lot of land in the city of New-York, which belonged to Mary Brevoort, before and at her death, in April, 1794. The parties to this suit are the representatives of two of the children of Mrs. Brevoort ; a third child, who was living at the death of his moth», er, having since died without issue.

This was an appeal from a decree of the late vice chancellor of the fifth circuit, dismissing the complainants’ bill. The defendant, J. A. Green, was the owner of two lots in the village of Syracuse, on which there was a tavern house and out buildings. These premises were leased by the defendant to S. Cosset, and to another person who was his surety in the lease, for the term of three years from the 1st of January, 1826, at the rent of $250 per annum, payable quarterly.

This was an application on the part of Nehemiah Brown, to set aside the order for an attachment against him for not answering the complainant’s supplemental bill, and that the costs paid to the officer who served the attachment might be ■refunded.

Tars was a creditor’s bill to obtain a discovery and satisfaction of a judgment in the supreme court, against the defendant, for about $700. The complainants, by their bill, after setting out their judgment and the return of the execution thereon unsatisfied, charged generally, that they had been informed and believed that the defendant had property, things in action, or equitable interests belonging to him of the value of $100 and more.

This case came before the chancellor on appeal. ¡/The facts of the case, so far as they are necessary to the understanding of the decision, are stated in the former report of the case referred to in the opinion of the chancellor, and in the opinion of the vice chancellor, which follows : Gardiner, Y. C. By a recent decision in one of the suits mentioned in the pleadings in this cause, the supreme court have given a construction to the bond of Ambrose Smith, and determine…

This was a suit against the executrix and devisees of James Gibbons,deceased, in behalf of the complainant and all other creditors, for an account of the estate, and for the satisfaction of their debts out of the same. The claim of tlie complainant upon the estate was for the amount of a note made by J. V. N. Yates to James Gibbons, in his life time, and endorsed by him to the complainant.

The bill filed in this cause alleged that the complainant and the defendants were partners in trade in the city of New-York; the business being carried on, ostensibly, by the complainant and E. Senior, and R. Senior being a secret partner. The complainant further alleged that the defendants had violated the partnership agreement by secretly removing a part of the effects of the firm from the store, and applying them to some private pecuniary transactions between themselves.

This was an appeal from a decretal order of tie vice chancellor of the eighth circuit, overruling a single exception to the master’s report. The master allowed nine exceptions for impertinence. And the vice chancellor, being satisfitd that two at least of these exceptions were well, taken, overruled the exception to the master’s report, with costs ; bit he permitted the parts of the answer embraced by the othei exceptions to remain as a part of such answer.

This case came before the-chancellor on an order to show cause why an injunction should not issue to restrain the defendants, the collectors of the town of Rotterdam, and of the second ward in the city of Albany, from collecting the taxes which had been imposed upon the capital stock of the complainant’s company, as personal estate, in each of those places.

This suit was instituted for the foreclosure and satisfaction of a mortgage, and the usual decree for a sale of the premises and for the delivery of the possession thereof to the purchaser was entered.

<p>This case came before the court, upon the complainants’ bill and a stipulation of the parties, for the purpose of settling the question as to the right, claimed by the city of Utica, to tax a surplus fund of $70,000, remaining in the bank undistributed, over and above the capital stock of the company. By the stipulation, the defendants agreed to waive all objections of form, either as to the jurisdiction of the court or otherwise, for the purpose of presenting to the chancellor the single question, whether the complainants were liable to taxation on their surplus fund. And it was further agreed, that if the decision should be in favor of the bank, the defendants might be restrained by injunction from collecting the tax. By the assessment roll, it appeared that the bank was assessed for all its real estate lying in the city, and for its whole capital stock, except so much thereof as had been paid for real estate then held by the company in Utica and elsewhere; and also for $70,000, which was described in the assessment roll as “ other personal property, or surplus fund.” And that the amount of the tax imposed upon the bank on account of such surplus fund, was about two hundred dollars.</p>

In 1826, Henry Eckfbrd and wife conveyed to Sarah Drake. In fee, certain lands in the city of New-York, in trust for her daughter, Janet H. Drake, her heirs and assigns, provided the said Janet did not die under lawful age, and without issue; but if she died under age, and without issue, then for the sole use and benefit of Sarah Drake, the grantee, her heirs and assigns forever.

This was an appeal from an order of the vice chancellor of the first circuit, directing the defendant, Brower, to be committed/or a contempt, in refusing to deposit a deed with the master, as directed by a former order of the court.

This was an application by one of the masters of this court for an extra allowance, in addition to his fees, upon taking an account of the administration of an estate. The suit was pending before the vice chancellor of the third circuit; but the application was made to the chancellor, under the supposition that he alone was authorized to make an order for such extra allowance, under the last clause of the seventh section of the fee bill.

The bill in this cause was filed by the executors and exectutrix of John Ellis, deceased, to settle the construction of the 'will of the decedent, as to a legacy given to his daughter Eliza Emily, formerly the wife of the defendant Paterson. The «chancellor decided that the devise over of the legacy, in case of the death of the legatee before she arrived at the age of 21, Was valid; and that the legacy was to be distributed as a part of the residuary estate.

The object of this suit was to obtain the decision of this court as to the validity of a legacy from D. W. Childs, deceased, to the complainants. By the will of the testator, he devised to his executors certain real estate, to be sold for the benefit of his children, and for the payment of certain legacies. Among other legacies which he directed to be paid out of the proceeds of such real estate, was one of $500, to the trustees of the Theological Seminary at Auburn.

This was an appeal from an order of the vice chancellor of the first circuit, setting aside a decree for a divorce, on the ground of irregularity. The parties resided in the city of New-York, but the subpoena was served upon the defendant at Newark, in the state of New-Jersey, during a temporary absence there for the purpose of lying-in.

This was a suit by the husband against his wife, for a divorce, on the ground of adultery. The defendant put in the usual answer, denying the adultery charged in the bill; upon which a feigned issue was awarded. Upon the trial, the complainant proved one act of adultery on the part of the defendant, and the jury gave a verdict against her.

This was an appeal from the order of the vice chancellor of the seventh circuit, dissolving the injunction which had been previously granted therein, with costs. From the affidavits read before the vice chancellor, it appeared that the injunction, which had been granted ex parte upon the filing of the bill, was served on the defendant and his attorney on the 12th of November, 1833 ; but no subpoena to appear and answer had ever been served.

This was an application to compel the purchasers under a decree of sale in a partition suit, to complete their purchases. The premises were sold by the master as for a good and indisputable title, and as being free from incumbrances; and the purchasers were allowed a certain length of time to investigate the title. The purchasers afterwards refused to complete their purchases, on the ground of certain alleged incumbrances upon the premises.

This was an application for an attachment against the defendants, for a breach of an injunction. A cross motion was made for a dissolution of the injunction, which application was granted, upon the ground that there was no equity in the complainant’s bill entitling him to an injunction.

<p>A widow’s right of dower, before assignment, is a mere right or chose in action, and not an estate or freehold in the land, or such an interest as can be sold on execution against her.</p> <p>Before assignment and entry, a widow cannot convey her dower right to a stranger, by any of the ordinary modes of conveying freehold estates, so as to vest the legal interest in her grantee.</p> <p>But if the widow is in possession, or is entitled to an assignment of dower immediately, the want of a mere formal assignment ofherdowerisnotconsidered material in equity. And her interest, in such a case, may be reached, upon a creditor’s bill, and applied to the satisfaction of the complainant’s judgment.</p> <p>The widow’s right of dower, before assignment, is a thing in action, within the meaning of the statute authorizing the court of chancery to decree satisfaction of ajudgment, out of personal property, money or things in action of a defendant, after the return of an execution unsatisfied.</p>

<p>After the decision of the court for the correction of errors, in this cause, the suit was revived, upon the petition of the defendant, against the executors of J. Taylor, deceased, as complainants with the surviving complainants in the original suit. And a decree was thereupon made, in conformity with the decision of the appellate court, referring it to Master Codwise to take an account of the $20,000 legacy given by J. Ellis, deceased, to the defendant's deceased wife, and of the accumulations and increase thereof, and of the stocks, securities and other property in which the same was invested ; and ordering Nehemiah Rogers and Mary Ellis, the surviving executors of J. Ellis, and J. Johnson and J. S. Taylor, executors of J. Taylor deceased, the present complainants, to appear before the master, and execute and deliver to the defendant Paterson such transfers, assignments, or other conveyances,, of the stocks, securities, or other property, as the master should require; and to pay to the defendant such sums of money belonging to the fund, and the accumulations thereof, as should appear to be in the hands.of the said Nehemiah Rogers and Mary Ellis, or to have been in the hands of J. Taylor, deceased, at the time of his death, and which should appear to be in the hands of the executors of the latter, or in the hands of any or either of them ; with liberty to any of the parties to apply to the court of chancery from time to time for such further directions as might be necessary or proper to carry the said decree of the court for the correction of errors into full effect. (a) A copy of the order was served on the solicitor of the complainants, and also on N. Rogers, M. Ellis, and J. Johnson, personally, on the IStb of April, 1834; together with a summons from the master to appear before him on the 21st of the same month, to proceed upon the decree, and to execute and deliver to the defendant transfers of the stock, securities, and other property, and to produce an inventory and an account of the funds and property, in the form of debt- or and creditor. But on the return day of the summons, the executors of Taylor, acting under the advice of their counsel, refused to attend before the master. The defendant, thereupon, obtained an order from the chancellor, directing J. Johnson, one of those executors, upon whom the summons had been personally served, to show cause why he should not be punished for his misconduct in neglecting or refusing to obey the summons. Johnson put in an affidavit, stating that the reason why he did not attend before the . master upon the return of the summons was because he had determined to appeal from the decretal order, reviving the suit and directing the decree of the court of errors to be carried into effect; and that he was advised his attendance before the master might prejudice the rights of the executors of Taylor upon the appeal. That he did so appeal from the decretal order, and that he executed the usual bond, with sureties, for the prosecution of the appeal, which was approved and filed with the assistant register on the first of May. The order appealed from was entered with the register, and the appeal was filed in his office. It was also suggested in the affidavit that the summons was wrong, being entitled in the suit as it was directed to stand revived, while the decree itself was entitled in the cause as it stood previous to the revival.</p>

This was an application, on the part of the complainant, to dismiss an appeal, by the defendants, from an interlocutory order of the vice chancellor of the first circuit The grounds of the application were, that notice of the appeal was not served upon the solicitor of the adverse party, as required by the statute, within the time allowed by law for appealing from an interlocutory order or decree; that the appeal bond was not executed by the appellants; and that the sureties…

This was an appeal from a decree of the vice chancellor of the first circuit, granting a divorce. The parties were married at Manchester, in England, in 1825, and came immediately to the city of New-York to reside. The defendant had continued to reside in this state ever since, except about eight months, from August, 1831, to April, 1832, when the parties were in England.

This was an appeal from an order of a vice chancellor, overruling an exception to a master’s report, on exceptions to the answer of Charles Lydia White, one of the defendants. The complainant took nineteen exceptions to the answer; a part of which were for insufficiency, and the residue for impertinence. The master allowed eight of the exceptions entirely, and disallowed nine. Of the remaining two exceptions, he allowed a part of each, and disallowed the residue.

The bill in this case was filed by G. F. Leitch, the sole next of kin of G. Leitch, deceased, for an account of the administration of the estate of the decedent. After a replication had been filed to the answer of the defendant, stipulations were entered into by the parties, as to the admission of certain facts upon the hearing, and on the reference.

The bill in this cause was filed for the purpose of dissolving a partnership which had existed between the parties, and to settle the partnership accounts and distribute the property and effects of the firm. moved for the appointment of a receiver to take charge of the partnership effects, consisting of a printing establishment, and the subscription list and advertising custom of a public newspaper. opposed the application, on the ground that the principal value of the…

In May, 1829, Seth Jenkins filed a bill, in this court, for the partition of a certain manufacturing establishment in the county of Columbia, on the south side of Major AbrahanVs creek, and a lot on the north side called the Van Rensselaer lot; to -which bill James Wilde and John F. Jenkins were made defendants.

This was an application on the part of the solicitor for the complainant, to compel the defendants to pay him the amount of several bills of costs in this suit. Exceptions were taken to the separate answers of the defendants, and allowed by the master.

The bill in this cause was filed in June, 1830, to obtain payment and satisfaction of the balance due upon a bond ' and mortgage given by G-. B. Gale and wife to J. Lambe, in' October, 1837. The mortgage, as originally given, included a tavern stand in the county of Washington, and a farm in the county of Orange; and was conditioned for the payment of $4000, with interest.

This was an appeal from a final decree of the vice chancellor of the fifth circuit, perpetually enjoining the defendants from building upon the public square, or upon Mill street, in the village of Watertown.

This was an application, cn the part of the complainant, for an order against the defendant, her husband, for an allowance, for the purpose of enabling her to carry on this suit against him for a separation ; and also for an allowance for alimony pending the litigation.

This was an application to dissolve an injunction, restraining the defendants from opening and regulating a street or highway, in the village of Lansingburgh, adjacent to the dwelling house of the complainants.

This was an injunction bill, and the complainant waived an answer on oath from one of the defendants, who was alleged to be insolvent, or in failing circumstances. He also annexed affidavits to his bill, in support of the charges contained therein and to sustain his injunction, as authorized by the 37th rule. Upon the coming in of the answer, which was on oath and denied the material allegations in the bill; moved to dissolve the injunction.

This was an appeal from the decree of the vice chancellor of the seventh circuit. In March, 1811, Elkanah Watson, who was the owner of about 80 acres of land in the county of Seneca, conveyed the same to J. Arnold & S. Day, and took back a bond and mortgage to secure the payment of the purchase money. Arnold & Day afterwards, conveyed the land to W. Brundage, subject to the mortgage.

This was an appeal from a decision of the vice chancellor of the first circuit, refusing leave to the complainant to amend a sworn bill. The bill stated the recovery of a judgment in favor of the compláinant, against the defendant Brewster, for about $700, on a bond and warrant given for goods sold to him by the complainant, upon which judgment an execution had been issued, and returned unsatisfied.

In February, 1815, Andrew Cannan conveyed to bis son, Robert Cannan, and to bis son-in-law, James Young, a farm in the town of Middlefield in the county of Otsego, and took from them a bond and mortgage on the same premises, conditioned to pay all the debts of Andrew Cannan, and to pay certain sums of money to bis children within one year after his death.

The question was raised in this case, whether an affidavit taken before one of the state senators could be read in a suit pending in the court of chancery.

In May, 1802, J. Eaton gave to J. Thurman a bond and mortgage on a lot of land in the town of Chester, to secure the payment of $428,59, with interest at the rate of six per cent.; which bond and mortgage was afterwards, by divers mesne assignments, transferred to G. Gardner. The defendant H. Powers became the owner of the mortgaged premises; and assumed the payment of the amount due on the bond and mortgage.

The defendants in this cause appeared by their solicitor, and put in their answers to the complainants’ bill. But the answers, upon exceptions taken thereto, being found insufficient, the bill was taken as confessed against the defendants, in consequence of their neglect to perfect their answers within the time prescribed by the order of the court.

The corporation of the Rensselaer and Saratoga Rail Road Company having appropriated for the use of its railways the lands of certain individuals, without their consent, and being unable to agree with them as to the price of the lands thus taken, commissioners were appointed by the chancellor, in pursuance of the act of incorporation, to appraise the damages which the land owners would sustain from such appropriation of their lands for the use of the company.

The bill in this cause was filed by the complainants against the defendant Dodge, as the surviving partner of the firm of Dodge & Green, for an account and settlement of certain commercial operations between the parties. The defence set up by the defendant was, that the commercial transactions were carried on between Dodge & Green of the one part, and the complainants and Leavitt Kingsbury, who was their partner, of the other part.

The bill in this cause was filed for the purpose of enforcing alien upon a land contract, given by Sir J. L. Johnstone to R. Topping, which by divers assignments afterwards came to Hannah, the mother of Hudson Topping. The contract was pledged to the complainant to secure the performance of an agreement with him by Hudson Topping for the delivery of 500 saw-logs, at ,his saw-mill, and was afterwards assigned to the defendant Read, by Hannah Topping.

This was an appeal from the decision of a vice chancellor, denying an application, on the part of the complainants, for the appointment of a receiver of the property and effects of the defendants, upon a creditor’s bill filed against them.

<p>To enable a party to read documentary evidence at the hearing, under the provisions of the 75th rule, it is not necessary that notice of his intention to do so should have been given, to the adverse party, ten days before the time limited in the order to produce proofs expired ; but it is sufficient if the notice is given ten days previous to the actual entry of the order to close the proofs.</p> <p>Where a mortgagee has received an equitable satisfaction of his mortgage, if he afterwards attempts to set it up as a subsisting lien upon the mortgaged premises, satisfaction of the mortgage may be decreed, so that it may be cancelled on the record of mortgages.</p> <p>Where the owner of land, which is subject to a mortgage, conveys the same with warranty, the covenant of warranty runs with the land, and is bound by the lien of a judgment against the grantee of the land, or his assigns - and if the grantor subsequently acquires title to the land, under a foreclosure of the mortgage, such title enures to the benefit of a purchaser at the sheriff’s sale under the judgment, and such grantor is estopped from questioning the title of such purchaser.</p> <p>The original grantor is also bound to indemnify the purchaser at the sheriff’s sale against the mortgage, if it remains unpaid, or where the lien thereof is continued by the substitution of a new mortgage for the purchase money a foreclosure.</p> <p>Where A., who is the owner of land subject to a mortgage, conveys the same to B. with covenants of warranty, who afterwards conveys to C. with similar covenants, both covenants run with the land; and if C. after-wards conveys the land to A., the original owner, the covenants in the deed from B. are merged, at law, so far as respects the lien or encumbrance of the mortgage. But if, in the intermediate time, B. has made a valid agreement with A. that he will pay off and discharge the mortgage, the covenants in the deed from B. are not merged in equity, but they will pass to a subsequent grantee of A., so as to give such grantee an equitable claim against B. upon those covenants, for an indemnity against the mortgage.</p> <p>When an equitable claim, to be relieved from an encumbrance on land, attaches itself to the legal estate of the owner of the land, such equity will be bound by the lien of a judgment against such owner, and will pass to the purchaser of the legal estate at a sheriff’s sale under such judgment, so as to entitle him, in equity, to relief against the encumbrance.</p> <p>In the case of a mere equitable interest of a judgment debtor, in lands held for him in trust, and which are liable to be sold on execution under the provisions of the fourth section of the statute of uses, the judgment is only a lien upon the estate of which the trustee was seised to the use of the judgment debtor at the time of the issuing of the execution; and not upon that of which he was so seised at the time of docketing of the judgmcnt, as in the case of lands of which the debtor is seised as of a legal cstate.</p> <p>A trustee who holds the legal estate for the use of another person, and who refuses to convey to him, will not be allowed to purchase in an outstanding title, for his own benefit.</p>

<p>This was an appeal from a decretal order of the vice chancellor of the first circuit. The bill was filed for a partition of the real estate of which John Fisher died seised, one half of which the complainant, R. Bogardus, claimed, as trustee of his co-complainant, Maria Clark, who was one of the heirs at law of Fisher. And the defendants, Diana Sawyer, formerly the wife of Fisher, and Lemuel Sawyer, her present husband, were made parties to the suit, on the ground that she was entitled to dower in the real estate of which partition was sought. For the purpose of barring the claim of Mrs. Sawyer as a devisee under the will of Fisher, her former husband, the complainants alleged in their bill, that after the decease of Fisher, a paper writing, purporting to be his last will and testament, was, by an order of the surrogate of the county of Kings, admitted to probate, and that on an appeal to the chancellor from that order, it was adjudged and decreed by the court of chancery that the said paper writing was not the last will and testament of Fisher, and was not made and published in due form of law; that at the time of executing the same, he was not of sound mind and memory, and was under restraint; and that the order of the surrogate be reversed; which order and decree of the chancellor was still in full force. The defendants, Sawyer and wife, in their answer, admitted the decree of the chancellor, on an appeal from the decision of the surrogate, as stated in the bill; but they insisted that it was not binding upon them any further than as it concerned the personal estate of the decedent. And they set up a claim to the whole real estate, in behalf of Mrs. Sawyer, as the devisee of Fisher. They alleged and insisted that at the time of making the will, the devisor was of sound and disposing mind and memory, and was not under any restraint, and that he executed the same in due form of law to pass real estate. They also alleged, that subsequent to the death of Fisher, and during the pendency of the appeal from the order of the surrogate, Maria Clarke and the other heir at law of Fisher, together with their husbands, filed a bill in this court against Mrs. Sawyer as executrix and devisee under the will, and against Willoughby, the executor, and other persons claiming under the will, to set aside the same ; to which bill Mrs. Sawyer put in her answer, insisting upon the validity of the will; which suit was still pending and undetermined. The complainants, without filing any replication to the answer in the present suit, brought the same to hearing on bill and answer; relying upon the decision of the chancellor on the appeal from the surrogate, as conclusive of the rights of the parties in this suit, relative to the validity of the will as a devise of real estate. The vice chancellor decided that the decree of this court, upon the appeal, was only binding upon the parties in respect to the personal property, and not so as to the real estate. But he allowed the bill to be retained, upon payment of the costs of the hearing, until the decision of this court upon the validity of the will in the suit commenced by the heirs at law, to set it aside. (See Bogardus and others v. Clark and others, 1 Edward's Ch. Rep. 266, S'. C.) From this decision the complainants appealed to the chancellor.</p> <p>The decree of the chancellor, made upon the' appeal from the decision of the surrogate of the county of Kings, admitting to probate the will of John Fisher, is conclusive upon the parties to this suit as to the validity of the devise of the real estate contained in the will. A person is in all cases concluded by a decision in a suit to which he is a party, whenever the same question arises in another suit, whether it arises directly or collaterally. ( Croudson v. Leonard, 4 Cranch, 436. Bull. N. P. 260. Baxter v. N. E. Ins. Co., 6 Mass. R. 277. Outram v. Morewood, 3 East, 346. Baring v. Fanning, 1 Paine, 549. 3 Wheaton, 234. Meadows v. Dutchess of Kingston, 1 Ambl. 763. 1 Salk. 290. Boyle v. Boyle, 3 Modern Rep. 164. 1 Ld. Raym. 262. King v. Vincent, 12 Mod. R. 136. 1 Strange, 481, 703. 1 Atkyns, 516. 1 Peere Wms. 388. 3 Cowen, 120. 5 Id. 650. Gage v. Bulkeley, 1 Russ. Rep. 103.)</p> <p>The opinion of the vice chancellor refers to the leading cases on the questions now in controversy. The decision of the surrogate and the decree of the chancellor are not binding as to the devise of the real estate. They may be conclusive upon the parties as to the personal estate, but have no binding force as to the real. The ■cases cited by the complainants have no application to this case.</p>

This was an appeal from a decree of the vice chancellor of the fifth circuit.

This case came before the court, upon a demurrer to the complainant’s bill. The bill stated a purchase by the complainant, in January, 1788, from the commissioners of forfeitures, of an undivided half of the rent and reversion of lot No. 144 in Pittstown; supposed to have been forfeited by the attainder of Robert W. Leake.

<p>This case came before the court upon exceptions to the report of a master, to whom it was referred to inquire and report what sum would be just and proper for the defendant to pay for the support and maintenance of the complainant, as temporary alimony pending this suit, instituted by her to obtain a separation on account of cruel treatment. The master reported $25 per month, to commence from the time of making the order of reference, as a just and proper allowance ; and that it should be paid monthly. He also, in pursuance of the directions contained in the order of reference, reported a suitable allowance to be paid to her for the necessary law expenses in this suit. The defendant excepted to so much of the report as related to alimony : first, that the amount allowed was excessive; and secondly, that the master erred in requiring the payments to be made monthly. From the testimony before the master, it appeared that the defendant was a farmer, worth between four and five thousand dollars, residing in the county of Rensselaer; that he married the complainant in the city of New-York, where her father resided at the time of the marriage ; that the complainant, upon her separation from her husband, returned to her father’s, in New-York; that her father afterwards died, and that she has since continued to reside in the city of New-York, boarding with a relative. From the testimony, it also appeared that the expense of the board, clothing, &c. of the conplainant, in the city of New-York, according to her situation in life, would be from two hundred and fifty to three hundred dollars; and that from the state of her health, she was unable to support herself by sewing or other labor; and that the expense,' of her board and clothing in the country, in the neighborhood of the defendant’s residence, would have been from one hundred and twenty to one hundred and eighty dollars per annum.</p>

<p>The court of chancery will entertain a suit for an equitable set-off of one judgment against another, although the complainant has another remedy by a summary application to the court of law in which the judgment against him was recovered.</p> <p>But as the complainant, in ordinary cases, has a more cheap and expeditious remedy, by the application to the equity powers of the" court of law, such suits in this court will be discouraged by refusing costs to the complainant, except in special cases.</p> <p>The lien of the attorney, for his costs of the suit, is paramount to the claim of the adverse party, to set off a judgment recovered against the client in another suit.</p>

This case came before the court upon the defendant’s plea to a creditor’s bill. It appeared from the plea that the present defendant sued the complainant as captain of one of the watch districts in the city of New-York, for false imprisonment. That he failed in his suit, and judgment was given against him for $238,18 costs.