Volume 4 — Saratoga Chancery Sentinel

This cause was heard on the pleadings and proofs. The bill was filed to foreclose a mortgage hereinafter described, on two stores, and the lot known as No. 84 Pearl street, in the city of New York. The heirs of T. Carter and wife, defended the suit.

<p>wfunotTinglin-prevent™1*4 SjSorV** cnme‘</p>

<p>pibadmg double' not encouraged.</p> <p>be aiiow-</p>

This was an appeal from so much of the order of the vice chancellor of the first circuit, appointing a’ receiver upon a creditor’s bill, as reserved to the defendants' the use and rents and1 profits of all hfe- real estate during the fifteen months allowed by law to redeem such real estate'from' a sale by the sheriff upon execution.

<p>Validity of an award made i Sunday.</p> <p>Agreements made on Sun,day.</p>

<p>ed^agafns^S</p> <p>Off0r pay mnoces-</p> <p>Construction of statutes as to</p> <p>parchaser from eí‘liSy bo0fe-w*</p>

<p>iuptey^tvest?' 'bankrupt of ail beacompeíÍe<in°o signment toaa (Creditor^suit (commenced7</p>

<p>chaseítmiioUr" Scniption in" mises as°d pr°"</p>

<p>Lex DmMiu, ■when applicable»</p> <p> ux locinisihr. </p> <p>aiBhts ofadmi lstrat01's-</p> <p>How fat bound iby a release.</p>

<p>Jurisdiction of court to restraii suits between husband and wife,</p>

<p>Effect. of rrleas-iria one of feve ral joint dub.ors.</p> <p>Cross bill in the nature of a ploa finis darrein continuance when</p>

<p>Effect of grant of a ferry.</p>

<p>r , Incapacity of an* ?»Gnt 10 s“e irl</p>

<p>Effect of hus-wife.i’UIV™n?</p>

<p>Eight ofpurcha1 sers to appeal from decree of mttrogato.</p>

<p>mfcípartm," agLñsfrepre-deceased put-ner‘</p> <p>suits against re-IrdiceatedVco-°f</p>

<p>ible defences</p> <p>Right of defendant to recnrm-separation o íor menm, &c,</p>

<p>bankrupt when pa"tyessai7</p> <p>Creditors bills jad°gmeñtíe,s</p> <p>-when the plain-•law will be considered as not .exhausted.</p>

<p>Surplus moneys, when to be ap*</p>

<p>Power of .yice chancellorto dispense wjtji sureties.,,o# appeal,</p>

The bill in this cause was filed by Sturges Lewis Brewster, and George B. Kissam and Lucy A. his wife, and set forth, that Caleb Brewster, formerly and at the time of his death, of the town of Fairfield and State of Connecticut, was at the time of making his last will and testament, and at his decease seised and possessed of a considerable real estate situate in the County of Herkimer and elsewhere in the State of New York, and was also possessed of some personal property.

<p>Petitions, how i,o he .entitled.</p>

This was an appeal by the defendant Lee from a decretal order of the vice chancellor of the first circuit, overruling the appellant’s plea. In February, 1841, the complainant and the defendant Lee, entered into a- co-partnership in the mercantile business in New-Yorlc, and during the continuance of such co-partnership, contracted debts by the purchase of goods upon credit.

<p>Examinations of fore^^naster?'*'"</p>

<p>Order as to tn-junction,Taxing and Exception</p>

This case came before the chancellor upon appeal from a decretal order of the Vice chancellor of the first circuit. The complainant filed her bill in this case against her husband for a divorce, charging him with having committed adultery-with eight different females.

On demurrer to the bill of complaint. The bill stated that Joseph ■ Latting, the great grandfather of the parties, late of Oyster Bay, Gueens County, died on the 12th of April, 1778, seised in fee simple of twelve tracts of land in the bill described, situate in Oyster Bay, having by his last will and testament, devised the use of the same to his son William, (the grandfather of the parties,) for his life, and also certain privileges out of the same to his widow Mary…

<p>Constructionof</p>

<p>Administrators when chargable with interest,</p> <p>■ night to inte- _ rest, how</p>

<p>Decree of fore, closure, ■when execution of, committed to junior incum-brancer.</p>

<p>nee! not benre-8 thSrize Ming’of creditor’s but.</p> <p>lsothruic not applicable to supplemental</p>

<p>Bond to stay pro-peaf-Ty whom, penalty to be ”</p>

<p>Exemption of trust property i creditor’s suits, a</p>

The bill was filed January 19, 1844, by John L. Moore and some others of the heirs of Lewis Moore, late of Hackensack in the state of New Jersey, deceased, against Michael Price Moore, Charles Moore, and the residue of those heirs, and against William B. Aitken.

This was an application by G.'& W. Hastings for the payment of $133, reported as due to them upon a judgment against the mortgagor which was the first lien upon the surplus monies brought into court upon the sale of mortgaged premises. It appeared by the report of the master that Ann Van Cott, one of the defendants, had appeared and filed a claim to the surplus moneys, and that another of the defendants in the suit, had appeared by his guardian ad li-tem.

<p>corporation u Parw-</p> <p>™ "so-</p> <p>creditors may^ J"5óifltíonree</p> <p>Rower of the court to decreft aiseeiution,</p>

This was an application by the complainant for an attachment against the defendant in a judgment creditors bill for an alleged violation of the usual injunction granted in such cases, and also for refusing to be sworn before the master.

<p>Construction of justification of suieues m ;in appeal i)on¡i.</p> <p>of neVfacts.°dui'f!</p>

This was an appeal from the decision of the vice chancellor of the first circuit denying the defendant’s application to take the complainant’s hill off the files of the court, and allowing the complainant to substitute a new solicitor to prosecute this suit.

<p>miss^bll}forwauS-páT”fecsessa'y</p> <p>Objection that assignee oi' complainant is not a party-how t0 be raised.</p> <p>Petitions need counseU°necl b?</p> <p>But signature nesessary.</p>

<p>Notico of ap t apprai entered.</p> <p>M¡i-etio8am°sn °*" appeal bond.</p> <p>puiy irofficer approving of Sureties in an</p> <p>who hása?een°r cause cannotap-Sond0 appeal</p>

<p>to7mayVoXcai£ {jffo?8asurrogate</p>

The bill in this cause was filed July 7, 1843, to foreclose a mortgage executed by S. Jones and J. L. Graham, to John Walworth, clerk in chancery for the first circuit, for $29,000, with interest at six per cent., dated April 4, 1835, and conveying eighty-eight lots or parcels of ground in the city of New A ork, lying between the Second Avenue, the East river, Thirty-First street, and the centre of the block above Thirty-Second street.

<p>Relief upon motions by default* to be according to notice of mor tion.</p> <p>íjfature of relief >yhere motions are opposed'. ‘</p>

This was an application on the part of I. W. Thompson, one of the defendants, for the retaxatipn of the costs of the complainant’s solicitor. An original bill in the first entitled cause was filed against the defendants therein to o.btain an injunction restraining pro-peedings at law and to obtain a specific performance o,f an agreement between the complainant and N. R. Crippen his father and the defendants.

<p>papers nofparties.0 ara</p> <p>Fowor of court to compel a wit? «ess to deliver * over papers on Jfjjj011 hc llas a</p>

<p>Mu# defendant fliágé‘3 in wu.</p>

<p>hied of refer-assfsiant’vi'co0 chanceüor, as to lause,"S the'6 subsequent pro--eedmgs therein</p>

<p>nmnict^nuto couna«üor7 °*</p>

<p>Trustees how discharged#</p> <p>Form of bill by a substituted trus* tee.</p>

<p>Set off in.equity</p> <p>Defendant entitled to notice of reference to compute subse® quent instal-ments.</p> <p>Notics to do. jendant; when necessary.</p>

<p>^““ffidaYU t«T ofco’,s-</p>

<p>Bin of int««. pic^dsr by attorney,</p> <p>derby abaSeea" bailorn&c^amS^</p>

<p>...... L restrain the us-mg of complain-«nt’s trade ¡marks.</p>

This cause was heard on pleadings and proofs. The bill, filed the 14th day of May, 1844, set forth that in the month of March,1839, Saxnpson V,_.S,. ^Wilder, then a resident of the city of New York, was the owner of the lot of ground No. 724 Broadswny, situated on the east side of Broadway, in the Fifteenth Ward of ihe city of New York, and bounded in front by Broadway, northerly by land of George Gordon, easterly in the rear by land of Seth Geer, and southerly by land of…

<p>Constmettort of net of May 7th, 1844, relative to the foreclosure of mortgages.</p> <p>Subsequent judgment credit* ors when neces-nary parties to foreclosure suit.</p>

<p>statute of fraud* —rules of plead-iHs relating to.</p> <p>On saieofiand* contract.</p>

<p>injunction pend, att *ppe>1'</p>

This an application on the part of the defendant to compel , 1 1 the complainant to elect whether he would proceed in this suit, or in a suit at law which had been commenced by the complainant in the name of another person and which was al-ledged to be for a part of the same subject matter for which this suit is brought. The defendant had demurred to the complainant’s bill and the demurrer was still pending and undecided at the time the application to elect was made.

<p>~re1Lminary ~n-junction, when Proper.</p>

Application to dismisss an appeal from the sentence or de-1 1 11 cr,ee of the ¿surrogate of ihe county .of Saratoga, upon the ground that such appeal had not been brought within the time allowed by the statute for appealing.

<p>/ alicer r"r im-<¡Z‘-J¡úa)nücf</p>

The bill in this cause was filed by Rny Tompkins, in November, 1845, against Caleb T. Ward, Thomas Hulme, Isaac Pierson, Ichabod Prall,… Held: or claimed to hold, divers collateral securities, assigned, transferred or delivered to him, by Tompkins, or by other parties or corporations, for and on his behalf: and that among such collateral securities, there was his bond to Hulme, conditioned for the payment of twenty-five thousand dollars, with interest, bearing date on or…

John Fisher, of the town of Greenburgh, in the county of Westchester, died in July, 1805, seised and possessed of a farm of about 160 acres, lying on the line between Greenburgh and Mount Pleasant; leaving him surviving the following children and heirs ; viz., his sons, Nicholas, William, Samuel and James; and his daughters, Sarah wife of Robert McCord, Mary wife of James Coles, and Fanny wife of James Sniffin.

The bill in this cause was filed April 20, 1842, by James Monroe and Elizabeth Mary his wife, and William Grayson and Jacob Crowninshield, trustees of the separate estate of Mrs. Monroe; against George Douglas.

The bill was filed to foreclose a mortgage dated September 26, 1845, on a farm in the county of Westchester, executed by Elnathan Weed and Rhoda his wife to the complainant; against the mortgagors together with Abijah St. John an infant, and Alice St. John his guardian.

The suit of Draper against Gordon & Brown, was commenced May 23, 1843. It was a creditors bill, after the return of executions unsatisfied, containing the usual allegations of such bills, with a specification of certain property and things in action which it sought to reach. It set forth four judgments against Gordon & Brown, which Draper claimed to own as assignee; and which were as follows: 1. One in favor of Robert Gilchrist, for $3155 71, recovered July 31, 1842. 2.

<p>A trustee cannot become the purchaser of the property which he holds in trust, adversely to the beneficiary.</p> <p>This rule of equity applies generally to a sale under a judgment or decree in favor of strangers to the trust.</p> <p>The right to avoid a trustee’s purchase of the trust property, is not personal to the beneficiary. It passes to his heirs or legal "representatives ; and it is a right in action to which creditors may become entitled.</p> <p>Mortgagees and judgment creditors, may purchase at sales made by virtue of their securities; because they stand in no relation of trust or confidence to the debtor.</p> <p>A purchase, in consideration of a precedent debt of a doubtful character, made from a trustee who purchased in violation of his duty, was set aside in favor of the beneficiary.</p> <p>A trustee, having bought the trust property at a mortgage sale, performed valuable services in preserving and securing the same for his own benefit. On the purchase being decreed a trust for his beneficiaries, he was allowed a full remuneration, so far as such services benefitted the estate.</p> <p>An assignee of one partner, who is compelled to account as assignee by an execution creditor of another member of the firm, (the first partner being largely indebted to the latter member;) cannot be allowed by way of set off, or otherwise, as against the execution creditor, demands due to him, (the assignee,) in his own right, from the creditor partner.</p> <p>In a suit by creditors of an assignor, against the assignee, to compel the application of the remaining trust property, on the ground that the debts for which it was assigned were all paid; the assignee claimed to turn the creditors over against another part of the trust property, which he had restored to the heirs of the assignor in full satisfaction. It appearing that such restoration was upon a compromise with the heirs, made under circumstances which rendered its validity doubtful; it was held, that the assignee thereby acquired no title to the residue, which could interrupt the creditor’s remedy against the same in his hands.</p> <p>Whatever remains after the payment of the debts of a partnership and its capital stock, is a surplus to be divided between the partners.</p> <p>It is immaterial how the debts arose, if they are co-partnership debts When paid; or whether they were compromised or paid in full.</p> <p>If either partner apply his individual funds to the compromise of a debt of the firm, he becomes its creditor for the amount paid, not for the amount of the debt.</p> <p>T. being indebted in his mercantile business, over two millions of dollars, took B. into partnership, under an agreement by which the debts of T. were to be paid through the new firm. T. had a large real and personal estate in possession, but was insolvent. B. had no capital. T. & B. conducted a very large and profitable business, and the new firm paid all the mercantile debts of T. This was effected to the extent of-over S800,000, by funds raised through credits given to the new firm, in the course of its business. T. & B. failed, owing more than a million and a half of dollars, and assignments were made of their assets, and of the real estate of T. At this time, by- means- of .the payment of T.’s debts by T. & B-, T. was a debtor to the firm in upwards of eight hundred thousand dollars, beyond what B. owed the firm. After some years, a debt of the firm amounting to $800,000 exclusive of interest, waa compromised for two hundred thousand dollars, which was raised and paid out of the real estate of T.</p> <p>Held, that in adjusting the accounts between T. & B., the debt compromised was to be regarded as the debt of the firm, and that T. was to be credited only the $200,000 paid for its liquidation.</p> <p>A receiver, appointed in the suit of an execution creditor against B., filed a bill to reach a debt due to B. from his former partner T. deceased. T. had assigned all his property to M., who still held a large amount, and had transferred other portions to his sons, on considerations alleged to be invalid as against T.’s creditors. M. had also conveyed other portions to the heirs of T. on a compromise. B. Was executor of the will of T., and was the husband of one of his heirs.</p> <p>Held, 1. That the receiver could maintain a bill to enforce T.’s debt to B.</p> <p>2. That M. and his sons, and B., and the heirs of T. were all necessary parties to the suit of the receiver.</p> <p>3. That the suit was properly brought against the heirs, with the executor; the personal assets of T. being insufficient to pay his debts, and the executor standing in so many conflicting interests.</p> <p>4. If the realty were deemed converted, the heirs, (who were also next of kin,) were proper parties as beneficiaries, their trustee having an adverse interest.</p>

<p>Privies to the person to whom a loan is made, either by representation or by operation of law, are borrowers, within the meaning of the statutes of usury.</p> <p>The receiver of an insolvent corporation or association, may maintain a suit to avoid usurious transactions entered into by the company which he represents.</p> <p>Facts considered, upon which an ostensible sale of foreign bills of exchange was held to be a loan of credit.</p> <p>Loans of credit, where there are no hazards other than those incident to an ordinary loan of money, held to be within the usury acts.</p> <p>D. & Co. having a house in New York and another in Havre, were dealers in foreign exchange. N. was a banking corporation in N. Y., in embarrassed circumstances. N. obtained from D. & Co., in N. Y-, bills of exchange, payable ■ in francs, in Paris, at 60 days sight, drawn on D. & Co., in Havre, and agreed in writing, with a deposit of state stocks, as collateral security, to return to D. & Co. within 55 days from date, the same amount of francs, in bills at 60 days sight on Paris, satisfactory to D. & Co., adding interest at seven per cent, and one and a half per cent commission. Held, that the transaction was a loan of credit, and was usurious. The agreement was directed to be cancelled, and the stocks returned.</p> <p>A banking association issued a large amount of bonds, (so called,) secured by a transfer of securities in trust. The bonds went into the hands of various persons, and a few were deposited by the bank with D. & Co, as collateral security for a loan of credit. The receiver of the bank, on its insolvency, filed a bill against the trustees, D. & Co., and all the other holders of the bonds, to set aside the trust because of its alleged illegality, and to have the bonds cancelled. Pending that suit, the receiver filed a bill against D. & Co., to avoid the loan of credit on the ground of usury, and to have the bonds, and other collaterals held by them, returned to the receiver. Held, that the former suit was not a bar to the latter, nor did it put the receiver to an electron as to'his remedy in respect of the bonds held by D. & Co.</p>

The bill in this cause was filed in July, 1834, by Thomas L. Wells, with John L. Lawrence and Murray Hoffman, receivers of The Life and Fire Insurance Company, Jacob Barker, Josiah Barker, Joshua Dyett and Jessy Ann his wife, and Henry W. Warner and Murray Hoffman, trustees of the separate estate of Mrs. Dyett; against William Chapman, Andrew Bache, Benjamin Jackson, and Isaac Gibson, Conrad W. Faber and Robert Hogan, assignees of Benjamin Jackson, and John J. Palmer; and…

These were creditors’ suits, commenced on the return of executions unsatisfied. The respective bills sought to reach a portion of an annuity of $2500, to which the defendant was entitled under the will of his father. The annuity was payable half-yearly, out of the income of a large fund of real and personal ■estate, which by the will was vested in trustees.

In this cause, there had been a decree made, settling certain rights in the separate estate of Mrs. Butler, in a suit in which she and her husband were complainants, and her infant children then in esse, and her trustee, were defendants. The decree contained, “ liberty to apply to the court for further directions on the foot of this decree,” whenever a child of Mrs. Butler should attain the age of twenty-one years.

The bill was filed and a temporary injunction issued, restraining the defendant and those under him, from parading, placing or keeping, before the door of the complainant’s auction store, No. 142 Broadway, during business hours, an offensive placard, warning strangers to beware of mock auctions. The injunction was accompanied by an order to show cause why it should not be continued; and the case came before the court, on showing cause.

The original bill was filed to restrain the defendant from carrying on a fat melting establishment, in the First Avenue in the city of New York, which it was alleged was a nuisance, affecting very injuriously certain adjacent tenements, some of which were owned by the complainant, Joseph Blunt, and others by the complainant, James B. Murray, in severalty.

This was a suit by a judgment and execution creditor. On filing the bill, and on proof that the defendant was about to depart from the state, a ne exeat issued, on which he was arrested, and he gave bail to the sheriff. The usual order for a receiver and the examination of the defendant was made. He neglected to attend before the master, pursuant to a summons founded upon that order, and the complainant moved for an attachment.

The suit was brought to a hearing in February, 1846, on pleadings and proofs, on an issue joined on the defendants plea, before the present vice-chancellor, while he was assistant vice-chancellor.

The suit was prosecuted by a husband against his wife, for a divorce, on the ground of adultery. The wife, in her answer on oath, denied the adultery charged, - and an issue had been awarded to try the question. The complainant had had an opportunity to try the issue, but had not brought it on. The late vice-chancellor had ordered him to pay to the defendant for alimony, thirty dollars per month; which it was shown was insufficient to enable her to proceed to Cuba.

Exceptions by the complainant to a master’s report, overruling his exceptions to the defendant’s answer. The answer was verified by the defendant, in London, before one of the Barons of the Court of Exchequer, and his signature, &c., were certified under the seal of the court by T. Dax, who subscribed hirnself as one of the masters of the court.

The parties in these suits had been co-partners, in conducting an establishment in the suburban part of the city of New York, which was in part a private asylum for the insane, and in part a boarding house for immigrants while they remained in the charge of ship owners and consignees. Messrs. Wilson and McClellan, were physicians and surgeons, practicing in the city, but giving their professional attendance at the asylum.

On the 25th of January, 1845, William A. Jackson, of the firm of Jackson & Losee, sold to the complainant, and for and in the name of the firm, executed to him an assignment of all dues and claims they then had outstanding, or that might be, or become due to, or be claimed by them ; in consideration of the complainant’s advances of money, to and for them.

This was a suit to foreclose a mortgage on lands situate in the county of Kings, in the second judicial circuit. None of the defendants resided in the first circuit. The solicitor,. not adverting to the act of May 13, 1846, (Laws of 1846, p. 468,) by which the county of Kings was set off to the second circuit, from the first circuit, (of which it had been a part for twenty years and upwards,) filed his bill in the first circuit, before the vice-chancellor.

This was a suit to foreclose a mortgage. After the bill had been taken as confessed by De Kay, for want of an appearance, .his wife appeared in the cause, and the complainant entered an order requiring her to answer the bill in forty days, or that it be taken as confessed by her. De Kay and wife thereupon put in a joint answer to the bill. No order of the court respecting her appearance, or authorizing her to answer with or without her husband, was entered by either party.

Demurrer. The bill set forth that on the 18th of December, 1840, Vermeule being in possession of certain lands, mortgaged them to Henry B. Knapp, ostensibly to secure the payment of $500. On the 30th of March, 1843, Knapp filed a bill in this court against V. and wife, to foreclose the mortgage.

Plea. The bill was filed in the year 1845, for a contribution by the defendant, Henry, towards payments made by the complainant, on a purchase of lots at Manhattanville, on joint account.

<p>This case came before the court on the petition of George Janeway, for the payment to him of the sum of $812, paid into court in the principal suit, by one of the masters of the court on a sale in partition, and which was invested in the name of the clerk. There was no dispute as to the petitioner’s right to $252; but the residue, $560, was claimed by C. Bartlett and the assignees of S. Ely. The circumstances respecting the fund were these.</p> <p>In May, 1835, the premises which were the subj'ect of the partition, being owned by George Janeway and two others as tenants in common, were sold by them to Bartlett and Ely, for $21,000. Margaret W., the wife of George J., refused to unite in the conveyance, upon which $2000 was reserved by B. and E., from George’s third of the price. In 1843, Bartlett filed a bill in this cause for the partition of the premises, in which George Janeway and wife, and others, were defendants. In October, 1843, a decree was made establishing the rights of the parties, and directing a sale by a master. The decree in sub' stance, adjudged that Mrs. Janeway was entitled to an inchoate right of dower in an undivided third part of the premises, (of which third Bartlett and Ely were the owners jointly.) It directed the value of her right to be ascertained by the master, on the principle of life annuities, and paid into court by him out of the proceeds of the sale. The same was to be invested by the clerk, the income to be paid to Bartlett and Ely during her life, and after her death the principal to be paid as the court should direct, on application of any party interested.</p> <p>The premises were sold under the decree, the master reported the value of Mrs. J.’s contingent dower as being $560, which sum (with the $252,) was paid into court and invested by the clerk. The interest on the investment had been paid by the clerk to George Janeway. Mrs. Janeway died November 7th, 1846.</p>

<p>8, having agreed to make a loan on lands, provided the title were good, employed M. and his law partner, as solicitors to prepare the securities, and examine the title, and directed them, if all were satisfactory, to advance the money, which S. was ready to pay whenever required.</p> <p>The solicitors prepared and recorded the mortgage, payable to S., examined and approved the tille ; and M. advanced a part of the loan to the mortgagor. After this, 8. refused to proceed with the loan, and on application from M., refused to pay him the advance made, or to assign the mortgage to him.</p> <p>Held, that M. solely, had a lien on the mortgage for his advance, S. held the legal title to it in trust for M., and was bound to transfer the same to him at his risk.</p> <p>A mortgage drawn for $3000 with interest, on a loan of $2800, under an agreement that the interest on the latter, shall as it falls due, be added to the principal, until it is made up to $3000, and thereupon interest to be paid on the full amount, is not usurious.</p>

Demurrer by the defendant, Pettis, to a bill filed against him, together with W. Austin and B. Dyckman. Several causes of demurrer were expressed, and at the hearing, other objections to the bill were taken, ore tenus; all of which will be found stated in the opinion of the court. cited Mitford’s Pl. 42 ; Rule 17; 1 Barbour Ch. Pr. 44; 6 Paige, 239. cited 8 Paige, 73; 1 Barb. Ch. Pr. 106.

This was a suit to foreclose a mortgage for $11,000, executed by James L. Cheeseman to the complainant; on a wharf, warehouses and fixtures, designed and used for an ice depot, situate in Ulster county, on the Hudson river. The land on which the erections were made, consisted of three and a half acres, and was held under a lease for twenty-one years from 1844, at an annual rent of $100. Half of the principal and one year’s interest on the whole, were in arrear.

Demurrer. The hill set forth an agreement for insurance made by the authorized agent of the defendants, the terms of which were fully stated, the payment of the stipulated premium by the complainant to the defendants, and the omission of the latter to execute a policy of insurance conformably to the agreement, on being requested. The bill also stated the loss of the premises insured, and the complainant’s consequent right to recover the amount agreed to be insured.

Demurrer, to the bill of complaint. So far as the statements in the bill bear upon the point decided, they are contained in the decision. The defendants demurred separately.

The bill in this cause was filed by the heirs of John McSorley, against his executors, to have the trusts of his last will and testament declared void, and for an account of the rents and profits. The will was dated June 3, 1838. The testator died leaving the four children surviving, who are named in the will, all of whom were infants when the cause was heard. The wife of the testator survived him, and was a party to the suit.

The decree entered upon the hearing of the cause, as reported ante, pages 223 to 281; referred it to a master, to take and state a variety of accounts between the different parties; and among other provisions, was one that the master should take and state an account between the firm of Thomas H. Smith The decree enjoined and restrained all the defendants who were in the possession or control of any of the property embraced in its provisions, from collecting, receiving,…

This case came before the court on a demurrer to the bill of complainant, by the defendant, H. L. Edgar. Various causes were assigned, which will be found noted in the defendant’s points. The material statements of the bill are set forth sufficiently in the opinion of the court. I. The bill purports to be a cross bill. (Mitf. Pl. 3d Ed. 70, 75, S1; Coop. Eq. Pl. 85.) 1. The complainant is not a party to the original suit; which he must be, to file a cross bill.

October 21st, 1846. The complainants in these cases,.moved for a receiver of their goods, severally consigned to the defendant as a factor, to be sold ; and of the proceeds remaining of' such as had been sold. The complainants had- made a formal demand of the goods and proceeds, and the defendant had refused to surrender any part of them. The bill charged that he was insolvent.

<p>This cause came before the court, on a motion to restore an injunction, formerly issued, and dissolved on the coming in of the answer; or for other or further relief. To render the application and its result intelligible, it is necessary to state the Whole case somewhat at large.</p> <p>The bill was filed August 3,1846, by David Banks, Anthony Gould, the executors of William Gould, deceased, and William Gould (the younger,) against The. American Tract Society, a religious institution incorporated in 1841, by an act of the legislature of the state of New York, having its place of business in the city of New York. The case made by the bill, so far as it affected the motion, was as follows :</p> <p>In February, 1834, Messrs. D. Banks, William Gould, since deceased, and Anthony Gould, were, and for many years had been, law booksellers and stationers, doing business in the city of New York, under the name of Gould, Banks & Co., and in the city of Albany under the name of Wm.dk A. Gould dk Co, In that month, they bought in fee the lot of ground No. 144 Nassau street, in the city of New York, for the purpose of carrying on their business, together with the printing offices and binding rooms connected therewith. The lot was twenty-one feet one inch in front on Nassau street, twenty-three feet one inch wide in the rear, forty-six feet five inches deep on its north side, and forty-seven feet seven inches on its south side ; and the price paid for it was $8250. (Their subsequent erections thereon, cost about $7000 more.) On th'e north it bounded on 1 a lot of ground, then and still belonging to the defendants, (at that time a voluntary association,) which was seventy-eight feet in front on the east side of Nassau street, extending north to Spruce street, the same breadth in the rear, and forty-seven feet deep on Spruce street, and also on the southerly side adjoining the lot of Gould, Banks & Co.</p> <p>Previous to 1834, the defendants association erected on their lot, a large and substantial brick building, covering its entire front and extending back nearly to its east line ; which they used for their offices and business till the spring of 1846.</p> <p>In March, 1835, there was a master’s sale under a decree of the court of chancery, of the lot of ground on Spruce street, (25 feet front and nearly 100 feet deep,) next east of and adjoining the rear of the respective lots of the defendants and of Gould, Banks & Co. Previous to the master’s sale, Mr. Banks in behalf of his firm, negotiated in several interviews with the directors, authorized agents, and apparent managers of the defendants association, for a joint purchase of the Spruce street lot, so that Gould, Banks & Co., might obtain such part of it as was in their rear, and southerly of their most northerly window, and thus afford their building sufficient light and air, in which by its small depth it was deficient; and it was finally agreed between the parties, prior to the sale, that the defendants association should become the purchaser of the Spruce street lot at the master’s sale, and should sell and convey to Gould, Banks & Co., so much of it as formed the boundary of the rear of their lot, and as might be necessary to give their building sufficient light and air, at a price in proportion to the entire cost of the Spruce street lot. Accordingly at the master’s sale, the latter was bid off by Richard T. Haines, one of the managers or directors, (who was appointed and authorized to purchase it,) in behalf of the defendants association, for $11,600, which was its full value, and it was conveyed to him by the master. He soon after conveyed it to trustees for the defendants, who paid the price of the lot to the master. After their incorporation, the lot was conveyed to the defendants ; who were also vested in 1841 and 1842, with the entire title to their original lot, on the corner of Nassau and Spruce streets., Mr. Haines when he bought, knew of the arrangement with G., B. & Co.</p> <p>On the 13th of March, 1835, before the master’s deed was executed, the defendants board of managers, in consequence of G., B. & Co. calling on them to execute the agreement befere set forth ; passed a resolution, and furnished a copy to Gould, Banks & Co., to the effect, that 16 feet of the rear, part of the Spruce street lot be offered to Mr. Banks for $2000, and that he be requested to decide on it by the 20th of March. On that day, G, B. & Co., in writing, proposed to refer it to two impartial men and an umpire, to fix the price or value of the land to be taken by G., B. & Co. No definite answer was made to this proposal; and on the 27th of March, 1835, G., B. & Co. in writing, proposed,' in fulfilment of the agreement made before the sale, to buy one-sixth of the Spruce street lot, being sixteen feet and eight inches in depth across the rear thereof, and pay the defendants $2000, on the delivery of the deed. On the same day, the defendant’s agent answered, that after consideration as to the kind of building to be put on it, they had concluded to suspend further negotiations for the present, as to the rear of the Spruce street lot.</p> <p>From that time, until June, 1846, Gould, Banks & Co. were pot apprised of the defendants readiness to renew the subject, or to complete the original agreement; nor had they, until 1846, any information, or suspicion that the defendants thought of refusing, or attempting to refuse the performance of such agreement and understanding ; nor had the defendants done any act upon the rear of the Spruce street lot, impairing the advantages which G., B. & Co. had always derived from the rear of that lot. After the master’s deed, the defendants did build a five story brick building upon the front of that lot, but not extending back so as to affect the rights G., B. <fc Co. had secured by the agreement as to the rear of the lot.</p> <p>The complainants insisted, that as G., B. & Co. were induced not to bid off the lot at the master’s sale, by the understanding for its joint purchase ; the defendants are bound specifically to perform the same, and have ever held the rear of the lot in trust for G., B. & Co.</p> <p>William Gould died on the 20th of January, 1846, leaving a will appointing executors, by which he devised his share of the lot 144 Nassau street, to William Gould, (the younger,) and the residue of his real estate to his executors, so as to vest them with the legal title. Messrs. Banks, A. Gould and W. Gould, the complainants, still conduct the business of, law booksellers and stationers, at the same places in New York and Albany; and own the lot 144 Nassau street, with the right to enforce the agreement with the defendants.</p> <p>The complainants, by the bill, tendered and offered to pay the price of the rear of the Spruce street lot, according to the terms and intent of the agreement.</p> <p>On the 3d of June, 1846, the complainants received from the defendants, a letter notifying the former, that it was their intention, without delay, to pull down their building on Nassau-street? to excavate for a cellar and basement, at least fourteen feet six inches below the surface, the ground in the rear of the complainants building, and to build thereon a new building. This was the first act of the defendants, in derogation of the original agreement.</p> <p>The complainants, in April, 1846, and never before, heard from rumor, that such a proceeding was in contemplation, and addressed a letter to the defendants, renewing their proposal to pay the $2000, and pointing out the vast injury it would occasion the complainants, to have the light shut out from their book-store, printing office, and bindery, as it would be by the contemplated building.</p> <p>The defendants answered, on the 1st of May, that they could not, consistently with their own accommodation, divest themselves of any part of the Spruce street lot.</p> <p>The defendants proceeded, and were, when the bill was filed, erecting a building which was to be five stories high above the basement, covering the whole rear of the Spruce street lot, and which was then up to the height of the second story beams.</p> <p>The bill also set up a claim to the light and air, over the rear of the Spruce street lot, for the benefit of the complainants building, by prescription, which it is unnecessary to set forth, as it was not decided upon. The complainants building is of brick, six stories high above the basement, and extending back to within four feet of the rear line of their lot, 144 Nassau street, and as it covers the whole breadth of the lot, it can have no side lights, because of the walls of the adjoining buildings. The defendants wall, built to the rear line of the Spruce street lot, within four feet of the complainants building, when carried to the height of the latter, as is intended, will impair and almost destroy the access of light through the rear windows of the complainants, and will injure their business, and greatly reduce the value of their property.</p> <p>The bill prayed a specific performance of the agreement relating to the purchase of the Spruce street lot; that the defendants might be restrained from disturbing or molesting the complainants in the enjoyment of the light and air over that lot, through their windows in the rear of 144 Nassau street; for an injunction against the further erection by the defendants, of the building commenced on the rear of the Spruce street lot, adjoining the rear of 144 Nassau street; and for general relief.</p> <p>On filing the bill, and the usual security, Assistant Vice-Chancellor Sandford, permitted an injunction to issue, restraining the defendants from proceeding with the erection of their building, on so much of the Spruce street lot, as was directly in the rear of 144 Nassau street.</p> <p>The answer of the defendants, filed August 21st, 1846, was verified by William A. Hallock, their corresponding secretary, who had been such from their first organization, and who stated, he was better acquainted with the affairs set forth in the bill than any other officer of the society.</p> <p>The answer admitted the statements of the bill, except as hereafter mentioned. It denied that previous to the master’s sale of the Spruce street lot, or at any other time, either Gould, Banks & Co., or Mr. Banks, had any interview with the defendants association or their directors, managers, or authorized agents, in relation to the purchase of that lot; or that the latter or any or either of them, expressed a desire to purchase the portion of the lot in their rear; or that Banks was desirous of purchasing the portion in the rear of G., B. & Co., or the part thereof southerly of their north window. It denied that at any time, before or after the sale, it was agreed between the defendants association and G., B. & Co., that the former should become the purchasers of the Spruce street lot, at the master’s sale, and thereupon should sell and convey to G„ B. & Co, or either of them, such portion of the rear of such lot, as formed the boundary of the rear of the latter’s lot, as might be necessary to give their building light and air, at a proportionate price, for the portion so to be sold, to the whole cost of the Spruce street lot, or upon any other terms whatever. On the contrary, the American Tract Society has not, and never had, either before or since its incorporation, any authorized agent or agents for the purchase or sale of real estate, or any important pecuniary transactions, except its executive committee or its finance committee. That, by the fifth article of the constitution of the society, it is provided, that the directors shall annually elect a publishing, a distributing, and a finance committee, (each consisting of not less than three, nor more than six members ;) the members of which three committees, shall constitute an executive committee to conduct the business of the society. That these committees are only answerable for acts passed by a quorum, at a meeting regularly convened, and recorded in their book of minutes, and never have had any authority to act, except in that particular mode. That the financial business of the society has always been chiefly transacted by its finance committee, but in matters of moment, that committee frequently takes the advice of the executive committee. That neither Gould, Banks & Co., nor any one for them, or either of them, attended any meeting of either of those committees of the society; nor ever addressed any communications to either of those committees, previous to the master’s sale, except as after mentioned. And that neither of the committees ever authorized any one to treat with Gould, Banks & Co., or with either of them, in respect of the purchasing or selling the Spruce street lot, or any part of it; nor did either of the committees in any way whatever, ever give any sanction to any negotiation of any sort, with them or either of them, respecting such purchase or sale.</p> <p>At the master’s sale, the lot was purchased for the society, by Mr. Haines, then one of the directors. It sold for less than its value, the executive committee having authorized Mr. H. to bid $15,000 for it, if necessary, to secure it for the society. The answer denied that Haines had any knowledge or notice of the arrangement and agreement set forth in the bill; for that no arrangement or agreement of any kind was ever made between the society and Gould, Banks & Co., in relation to the Spruce street lot. It denied that shortly after Mr. H.’s purchase, or at any other time, G., B. &. Co., or either of them called on the society, its directors, managers and agents, or either of them, to execute the agreement pretended in the bill, or to come to an arrangement with them respecting the quantity of the rear part of the lot which should be conveyed to them under such agreement, or the proportionate price to be paid therefor ; except as after mentioned.</p> <p>The finance committee, on the 13th of March, 1835, passed the resolution set forth in the bill; but the answer denied that this was in part performance of any agreement or understanding between the society and G., B. & Co., or either of them. That the truth, in relation to the transaction, is as follows:</p> <p>On hearing that the Spruce street lot was to be sold at auction, the officers of the society thought it advisable for the society to become its owner for their own use. Before any action on the subject, Messrs. Banks and W. Gould called on Mr. Hal-lock, the corresponding secretary and general agent of the society, and suggested, that as the Spruce street lot lay in the rear of the lots of both parties, they should not bid against each other, but make an arrangement, whereby whichever of the two parties bought it, that party should sell a portion of the lot to the other. Mr. Hallock replied, that the committee of the society alone had power to act on the subject; that he thought it probable the committee might be willing to make some such arrangement, if the subject were properly brought before them. Nothing was said, then or at any other time, as to which of the parties should buy the lot, or at what price, or definitely how much ground one should sell to the other, or on what terms. That Gould & Banks bound themselves to nothing, and Hallock had no power or authority whatever to act in the premises. He informed the committee of their suggestion, but the committee took no action on it. After this, he called on G., B. & Go., in company with Mr. Green, one of the committee, and after a little conversation with Banks, retired with the distinct understanding, that he had no definite proposition to make, on which the committee could act. That no agreement was made between them, nor any definite proposition made by Banks, or any of his partners. The committee were willing to consider candidly any proposition from G. &, B. whereby they should have assumed the responsibility of paying for a definite part of the Spruce street lot, if purchased by the society; but as they proposed nothing, and assumed no obligation, the committee judged the society must protect itself by purchasing the whole lot. A resolution, that Mr. Haines purchase it, was adopted by the executive committee, on the 3d of March, 1835. On the 13th of March, the finance committee passed the resolution set forth in the bill, offering sixteen feet of the lot to G., B. & Co., and another resolution, appointing a committee to borrow money to pay for the lot, and erect buildings thereon. Mr. Banks replied in writing to the former, in the name of his firm, offering to arbitrate as to the price, reiterating the agreement as to the purchase, as being made with Mr. Hallock, and understood in the conversation with him and Mr. Green. On the 23d of March, the executive committee renewed the offer of sixteen feet to G, B. & Co., for $2000, requesting their answer the next day, as the purchase money of the lot was to be paid on the 25th March.</p> <p>No answer was made by G., B. & Co. to this last proposition. On the 27th of March, 1845, they addressed a letter to Mr. Hal-lock, offering to pay $2000 for one sixth of the lot, in the rear; on which the finance committee resolved that further negotiations be suspended until the plan of a building should be matured, and delivered a copy of the resolution to G., B. & Co. No further overture or proposition was received from them by the society, and the matter of the sale was entirely dropped. The society erected a two story building in the rear, on the Spruce street lot, to within nineteen feet of the rear line, and back of that erected and maintained till 1846, a large privy and several coal bins.</p> <p>The answer denied that the society or any of its officers or agents, ever communicated to G., B. & Co., the intention of the society, in case it purchased the lot, to convey to them any portion of it; or that G., B. & Co. were prevented from purchasing, by any understanding or agreement whatever.</p> <p>On the 1st of May, 1846, in reference to the renewed proposition of the complainants, the finance committee asked the opinion of their architect and machinist, who certified that the society could not spare any of the rear of the Spruce street lot, consistently with their own accommodation ; and the committee concurred, and so informed the complainants.</p> <p>The answer admitted the proceedings to rebuild, which were undertaken in order to have the society’s printing done on its own premises, and that the building was to extend on the rear of the Spruce street lot. The answer proceeded thus : “but these defendants deny they are erecting such building upon the entire rear of said lot, and on the contrary they allege that they leave a yard on the extreme rear of said lot, six feet in depth on the easterly side and four feet in depth on the westerly side, and of the whole width of the said lot, being nearly or quite twice as large as the yard reserved by the complainants from their own lot; the situation of which will more correctly appear from the diagram marked A. hereto annexed, to which these defendants crave leave to refer as forming apart of this their answer.”</p> <p>(The wood cut below, is a copy of the diagram A. annexed to the answer.)</p> <p>SPRUCE STREET. y to to > o * n q 02 g o s 2 sg CO “ O' Kj m r o *3 46-4 70-Í4 Gould, Banks & Co. 144 Nassau St. 47-98 p K¡.ti5 9-f m ►d m O"1 O d g: if ►3 •-i P o CQ o o CD* r* *<j B* Tract. Soc. Yard. 22-7 99-10</p> <p>The answer proceded to traverse the right to light and air by prescription, as claimed in the bill; and alleged that Gould, Banks & Co. after they purchased their lot, in 1834, built a store oh it, extending farther to the rear, with different windows, and three stories higher, than the old building there situated when they bought. That their present building extends on the southerly side, to the line of the Spruce street lot, and on the easterly side it extends eight feet ten inches on that line, being a privy four stories high ; and the defendants are erecting their building in rear up to the line of the lot adjoining the premises of the complainants, as shown on the diagram before mentioned.</p> <p>The answer denied that the defendants intended building, would destroy the lights at that time received in the complainants building, though it will materially affect the same. It denied any application or request of the complainants to the society or any of its officers or agents, to execute the agreement or understanding set up in the bill, otherwise than as before stated. The answer further set up the statute of frauds and the statute of limitations, in bar of the relief sought by the bill. It also alleged that the society had sustained great expense by the injunction. That the building is to contain a steam engine and all the necessary machinery and apparatus, which are under contract to be made expressly to fit the part of the building on the rear of the Spruce street lot, and to be connected with the power presses in the main building; at an expense of $20,000.</p> <p>On filing the answer, the defendants moved to dissolve the injunction. The motion was argued by counsel, before Vice-Chancellor McCoun, who on the fourth Tuesday of August, 1846, made an order that the injunction be dissolved.</p> <p>The motion now reported, was brought on before Vice-Chancellor Sandford, on the pleadings in the cause, and on affidavits read in behalf of the respective parties. It was made in connection with a motion for leave to file a supplemental bill, setting up the matters stated in the complainants affidavits, or such of them as were appropriate. The complainants on the 8th of October, 1846, obtained an order to show cause, with a temporary injunction against the further erection of the extension wall hereafter mentioned; on which order, after various delays for the convenience of the parties, the motion came on to be heard.</p> <p>The complainants affidavits and papers annexed, were as follows:</p> <p>1. The counsel who opposed the motion to dissolve the injunction, deposed that he took notes in writing at the time, of the points made by the respective counsel for the defendants, which appeared to call for observation on the part of the deponent. That Mr. Holden, in opening the motion for the defendants, directly called the attention of the court to the diagram annexed to their answer, and to the facts exhibited thereby; that the tract society had left a vacant space on the rear of the Spruce street lot adjoining a portion of the rear of the lot of the complainants, and stated to the court in express terms, that the complainants might derive the use of light and air, at all limes in common with the defendants, from that portion of the defendants lot, and the latter in erecting their rear building, had left that part of their lot vacant expressly with a view to accommodate the complainants by affording them the free use of light and air therefrom. The latter statement of the society’s counsel, struck the deponent at the time as so extraordinary, that he made a note of it in his minutes of the argument in order to call his attention to it in answering in the words following, 61 left that part for his accommodation ;’’ which words were used by Mr. Holden in that behalf, in connection with the statements before referred to. That deponent, in opposing the motion, referred to those declarations of Mr. Holden, and to expose what deponent then believed to be the insincerity of the society in whose behalf they purported to be made by Mr. H.; called the attention of the court to the fact that the part of the Spruce street lot so left vacant, abutted against the wall of the building of the complainants, and therefore they could not derive light and air therefrom; and Mr. Holden interrupted deponent by remarking that this wall was# the wall of a privy attached to the complainants building, and they might take down the privy if they wished the use of light and air from the society^ lot. That deponent understood and believed the declarations so made,' to be the authorized declarations of the Tract Society, and in that belief informed Mr. Banks thereof, and advised him to act thereupon and make the change in his building so suggested, and to avail himself of the light and air so tendered and offered and alleged to have been intended for the complainants. That the proceedings in court were public and audible1,- and Mr. Hal-lock, and others believed to be officers and managers of the society, were present attending to the proceedings.</p> <p>2. The solicitor for the complainants, William G. Banks, deposed that he was present during the argument of the motion to dissolve the injunction, and stated what took place, in the same manner that it was set forth in the affidavit of the complainants counsel.</p> <p>3. Edgar Ketchum, counsellor at law, deposed that he was present in court at the argument of the motion to dissolve the injunction. That Mr. Holden, one of the defendants counsel, in his opening argument, called the attention of the court to a plan of the ground, showing how much of the lot was to be covered by the Tract Society’s building, and stated in substance that the defendants had left that part of their lot vacant, and the complainants could derive light and air for the rear of their building from the rear of the lot of the society not built upon by them. That Mr. Sandford, the counsel for the complainants answered, that the portion of the lot left vacant was against the rear wall of the complainants building, and was the wall of the privies attached to their premises ; to which Mr. Holden replied in substance, that that was the complainants own choice, and if they chose to have privies there instead of lights, it was not the defendants fault.</p> <p>4. The complainant, David Banks, deposed that after the injunction was dissolved, the defendants had raised and inclosed their building on the rear of the Spruce street lot to its intended height of five stories, and it obstructed the light and air formerly received into the complainants building, to the full extent which had been anticipated by them, as stated in the bill. That the defendants building extended along the rear of the complainants lot, beyond all the windows they had in their rear at the time of its erection, and to and against the wall of the privy attached to the complainants building, (situated in the southeasterly corner of their lot, and two of its sides extending to the southerly and easterly lines of their lot;) so as effectually to exclude from their rear windows all light and air from or over the defendants lot. But the defendants building did not extend to the southerly line of their Spruce street lot. They constructed windows in the rear and southerly side of such building, to admit light and air therein from the rear of that lot, and left on its southerly end an open space, about four feet in depth on the westerly side adjoining the complainants lot, about six feet in depth on the easterly side, and extending across the entire rear of the lot in question.</p> <p>(The affidavit then detailed, on information, what took place in court on the motion to dissolve the injunction.)</p> <p>That at the time Gould, Banks & Co., erected their building on their lot 144 Nassau street, the large building known as the Tract Society House, was standing on the adjoining lots of the defendants on Nassau street; and G., B. & Co., in laying their foundation walls, fully protected the Tract House from injury, at great additional expense to themselves, and to their loss in their own building of six feet in width of the cellar and basement. That the defendants, on taking down the Tract House in May and June last, dug the foundation for their new building, under and below the foundation of the complainants building, so that the latter became settled, cracked and greatly injured, and the complainants incurred an expense of $515, in shoring up and supporting their building. That after the decision of the motion to dissolve the injunction, the deponent proposed to the counsel for the Tract Society, that to settle all controversies between the parties, the Society should pay the expense last mentioned, and the expense of removing the privy to the northeast corner of the complainants lot, which would give them the right to light and air in common with the defendants, over the little space not built upon in the rear of their lot; and the counsel for the Society said, he would recommend or advise such settlement to the defendants.</p> <p>That the complainants, finding themselves seriously inconvenienced in the enjoyment of their property, by the defendants new building, and acting upon the public declaration, (as before stated,) of the cession by them to the complainants of the use of the light and air, over the rear of the portion of their Spruce street lot not occupied by their building ; took down the privy in the rear of the complainants lot, attached to their building) and commenced inserting in the rear wall of their building, opposite where the privy had stood, windows of suitable size to admit light and air in the rear of their store, printing office, and book bindery. The windows so inserted were securely introduced, with iron lintels, iron sills, and iron frames, and all inclosed with fire proof iron shutters, of the best description. After the complainants had commenced the insertion of the windows, deponent on the call of the defendants counsel, had an interview with him, in which he intimated, that if such windows should be inserted, the defendants would erect a wall across the four feet remaining on the westerly side of their Spruce street lot, along the rear of the complainants lot, and thus shut them out from the light they might expect to derive therefrom.</p> <p>The deponent further stated, that the wall along the southerly side of the complainants lot, is already huilt six stories high, entirely up to the line of the defendants lot, and the threatened wall of the latter would totally exclude the complainants from any light and air, except that to be derived from the rear of their own lot. The deponent feeling highly indignant at the suggestion of an act, which he believed to be a wanton and malignant attempt to further injure and destroy the complainants property, earnestly remonstrated against the erection intimated. Shortly afterwards, he received a letter from the defendants counsel, dated September 18,1846, notifying the complainants, that under existing circumstances, the Society felt compelled by a just regard for their own security, to extend the wall of their building in the complainants rear, to the southern boundary of their Spruce street lot; for the reason as alleged, that the insertion of such windows by the complainants, would increase the hazard of the Society from fire.</p> <p>That the defendants building, alleged to be thus exposed from those fire proof windows, is erected for the avowed purpose of putting up and using therein, a steam engine and machinery ; while the complainants have no steam power, or other employment upon their premises, requiring the use of fire or steam as an agent, and they have within their store, on an average, an amount of books, stock, and work in progress, not less in value than about $150,000, and as he believes, greatly larger than the amount of property at risk in the defendants buildings. That the pretence that such windows would increase the hazards of the defendants from fire, and the cost of insurance, was utterly unfounded; and to prove the same to them, deponent obtained and served on their counsel and agents, a certificate of competent persons to that effect. That notwithstanding, the defendr ants are proceeding to erect such wall, and have already carried jt up to the second story of the complainants building.</p> <p>The certificate annexed, was in the following words :</p> <p>(‘ This is to certify, that the undersigned have examined the windows, recently put in the rear wall of the store of Banks, Gould Co., No. 144 Nassau street, and say, that the windows are well and securely introduced, with iron lintels, iron sills, and iron frames, the whole enclosed with iron shutters, and made fire proof, more so than windows in general are, called fire proof. That we consider the same fire proof, the hazard by fire not increased, and the charge for insurance not.advanced by reason thereof.</p> <p>(‘New York, Sept. 24, 1846.”</p> <p>This certificate was signed by four agents and secretaries of fire insurance companies, one master carpenter, and one mason, Three other masons, one master carpenter, two builders, and two secretaries of fire insurance companies, in addition to the former, signed it before the motion was made.</p> <p>5. Samuel Blqoi? deposed, that on or about the first of Octor her, he served the defendants counsel, and three of their manar gers or committee men, each with a copy , of the certificate, with a letter from Banks, Gould & Co., attached to each copy, of which a copy is below. At that time, the foundation of the extension wall to th..e rear, had just been commenced, it being several feet below the surface. The letter was as follows:</p> <p>“As the Tract Society are about building a wall across the remaining three or four feet in the rear of our store, which will exclude all the light from us; and as the cause assigned for such a course adopted by the Tract Committee, was the hazard by fire, and the increase of the premium for insurance by the Fire Insurance Companys; we lake the liberty, before you commenee the wall, to serve you with a certificate of several of the agents and secretaries of Insurance Companys, and builders, that your fears are groundless, and that the hazard by fire, and the expense of insurance, are not increased nor advanced, by the introduction of our windows in our rear wall.</p> <p>“ Banes,- Gould & Co.-</p> <p>“New York, October 1, 1846.”</p> <p>6. A subsequent affidavit of David Banks, stating the additional signatures to the foregoing certificate, and setting forth another certificate, in the words following, viz i</p> <p>“ We, the undersigned, have been or are now officers or firemen, attached to the fire department in the city of New York.-</p> <p>“ That we have examined the iron windows introduced in the rear wall of Banks, Gould &, Co.’s store, l44 Nassau Street# and pronounce them fire proof ;• and more safe than any windows we have examined. That the Tract House and other buildings in the neighborhood are not more exposed to danger# and the hazard from fire not increased thereby.</p> <p>“That there is a space or area of about five feet between the rear walls of said store and Tract buildings. That windows of this kind are highly necessary for the admission of light and air into said store, which are obstruced by the Tract House building, and a dead brick wall extending beyond the same, shutting out the light and air from a Vacant space, and apparently erected for that express purpose, and not necessary in any way for the security, completion or convenience of said Tract building.”</p> <p>This certificate was signed by the chief engineer and three late chief engineers of the fire department, by two late engineers, and by twelve foremen and late foremen of fire engine and hose companies.</p> <p>On the part of the defendants, the following affidavits and papers were read in opposition to the motion on showing cause.</p> <p>1. S. V. S. Wilder# deposed that for seventeen years prior to 1842, he was president of the American Tract Society. That he was present at the argument of the motion to dissolve the injunction, and recollects that one of the defendants’' counsel# for the purpose of correcting an error in the bill, laid before the vice-chancellor a diagram, showing that the society’s building did not extend to the southerly line of the complainants premises within the distance of four feet 5 but the deponent heard no intimation of any cession of light and air through that opening of four feet, nor of any pledge that such space should be continued open; and having given careful attention to all that occurred in the arguing of the case, he is confident that the assertion that any cession of such light and air, or any pledge respecting it, was then made, is utterly at variance with truth and fact.</p> <p>2. William A. Hallock, deposed, that he is the secretary of the defendants, and was present at the argument of the motion to dissolve the injunction, and no other officer or agent of the society was present on that occasion. It was not on that argument, stated to the court by the counsel for the defendants, in the presence or hearing of the deponent; that the complainants could at all times enjoy light and air over the remaining portion of the Spruce street lot, (which the society had reserved for light and air for their own building,) and that no injunction was necessary to secure to the complainants a reasonable proportion of light and air from that lot. That the counsel for the society had no authority whatever to make any such statement, if any such were ever made. The deponent recollects that a diagram was shown to the court, by the counsel for the society, showing that the society had not built upon their extreme southerly line, as alleged in the bill, and showing the opening the society had left in the rear of their new building.</p> <p>That at the time of such argument, no pledge or assurance of any kind was given in regard to any opening, or to the use or privilege of any light or air; and the counsel for the society had no authority whatever to make or give any pledge on the subject. If any thing were said by him on the subject, it was merely incidental, when exhibiting the diagram, showing that the society had left an opening in the rear. No arrangement or compromise was then and there made, proposed or suggested, on the subject, on the part of either party.</p> <p>That the vice-chancellor decided the motion to dissolve, not on the ground of any condition in favor of the complainants, or any expectation held out of any enjoyment of any right whatever in or over any part of the premises in question by them; but he decided the motion entirely on the merits, as they appeared in the bill and answer, and on the ground that upon those papers, the complainants had no right to any conveyance of any part of the premises, and no right to any easement or privilege in or over the same; and no leave was given or asked to renew the motion, or to make any other.</p> <p>That when Mr. Banks and his co-partners erected their building, 144 Nassau street, although intending to do so without injuring the Tract Society’s house, yet it was greatly injured thereby; the walls being badly cracked, and one or more sills broken, and it was otherwise injured. No complaint, however, was made, or redress sought.</p> <p>That there will be a very large amount of property introduced into the society’s new building by them and their tenants; and they have felt it to be their duty to' use evpry possible precaution to guard the premises from loss by fire. That since the injunction "was dissolved, the society’s officers have perceived that Mr. Banks has taken out the whole southerly rear of his building, being an opening about seven feet wide from the roof to the ground, making one continuous window, six stories in height, excepting the iron sills and lintels. That this great opening, very considerably increases the risk from fire of the society’s premises, as is the opinion and belief of deponent, and of many judicious and reflecting men who have examined the premises. That in erecting the wall now complained of by Mr. Banks, the society’s committee were not actuated by wanton and malignant motives, as charged in his affidavit; but, as deponent believes, by an honest regard for the interests of the society, and a conscientious discharge of their duty. That they protested against his intended alterations on the L8th of September, which was as soon as they heard of them, and on the 30th, through their counsel, addressed a letter to Banks, Gould & Co., to the follow, ing effect, viz.:</p> <p>That the committee had ever wished to consult their neighbors’ convenience, as far as they could consistently with the most advantageous use of the property intrusted to them, they having no personal pecuniary interest in it.” (The letter then reviewed the purchase of the Spruce street lot, and the offer to Gould, Banks & Co., as stated in the answer.) “ That at some inconvenience, and gratuitously, they left open the space in the rear, which would accommodate the complainants, expecting, as did their architect, that the latter would set the rear wall of their building back,” (towards the front of their lot,) “ leaving a space of ten to twelve feet from their rear windows to the rear windows of the society, which with proper shutters, would be a sufficient security against fire. This was done in the spirit of good neighborhood, hoping it would be reciprocated. Instead of which the complainants, after waiting till the society’s building was ready for a second tier of beams, and their machinery fitted to its size, obtained an injunction, and delayed their work for a long time; next an action at law for damages, and, last of all, a tier of windows from the top( to the bottom of the complainants south-east rear wall. Notwi istanding all this, the society set down naught in malice ,• they still desired the complainants to avail themselves of the light and air which might be enjoyed by them, if they saw fit to alter their rear, and construct their windows so as to make the society safe. That the society could not but believe the alteration then proposed, would expose them to greater damage from fire. The society had been at great expense in preparing their roofs, &c., to resist fire in all ordinary ways, and they thought the complainants own interest would be consulted by carrying out the plan which had been before suggested, which would cost them but a few hundred dollars more than the mere insertion of the windows, and which would, as architects advised, be indispensable to secure light to them, whenever buildings should be put up to the line of the Spruce street lot on the lot next south. If the committee owned the complainants store, they would at once shorten it; and the cost of so doing would be a very small item, compared with extra insurance which the society must pay, and the hazard they must incur, if the complainants inserted the windows as they proposed. The committee in addressing them, did not claim to control or advise them in the matter, but to inform them that the duty of the committee was, if they saw fit to insert such windows in their then rear wall, to extend the society’s wall to the southern boundary, to save insurance and risk in all future time. Their counsel renewed his suggestion, that if the complainants saw fit to make a proposition to the committee to set back their wall four to six feet, and put on their windows secure shutters, &c., and withdraw all litigation, the society would probably desist from erecting the intended wall; at any rate, he would so advise the society.’ ’</p> <p>That Banks, Gould & Co., declined to accede to the suggestions of this letter; and were endeavoring to influence the public mind by exparte and erroneous statements. That many of the buildings near the defendants building are very high, and occupied by steam furnaces, by printing, binding, and other combustible materials; some of them being such that some of the safest insurance companies will not insure them at all; the upper stories of the complainants binding, are occupied for printing and binding; and deponent believes, and it is evident, he thinks, to the common sense of every one who will examine the premises, that the risk to the Society’s building is increased by the large opening for the complainants windows.</p> <p>That deponent is advised by intelligent insurers, officers of the fire department, and experienced builders, that the erection of the Society’s extension wall, with a dead wall on the line of the lot next south, which it is expected will soon be built, will form an entire protection, not only to the Society’s building and those adjoining, but to the whole neighborhood, and he believes the opinions, <fcc., in the certificate annexed to his affidavit, to be true.</p> <p>Thai the wall of the main building adjoining the complainants on the south, does not extend east to the rear of their lot, but stops five feet from it; and the building of the Society’s extension wall, therefore, would not totally exclude the light and air from the complainants building. Its whole six stories would be lighted over the space of five feet.</p> <p>(The residue of the affidavit, was a reiteration, somewhat more in detail, of the denials in the answer, of any agreement, understanding, or intimation, as to the purchase of the Spruce street lot, and the other statements concerning the same.)</p> <p>The order dissolving the injunction annexed, was in the usual form, giving no reason for the decision, and was silent as to leave to apply for a renewal of the injunction.</p> <p>3. The certificate appended was as follows :</p> <p>“ The undersigned hereby certify, that they have examined the premises adjacent to the wall of four feet which the Tract Society have commenced erecting on the westerly line of the rear wing of their building, at the corner of Nassau and Spruce streets; and it is the judgment of the undersigned, that in case the adjacent building of Messrs. Banks, Gould & Co., or Messrs. Morse, should be on fire, said wall, if completed to the height of said building, would add to the protection of the Society’s premises, and it is further the judgment of the undersigned, that in case Messrs. Morse should extend a wall without openings along the southerly line of Banks, Gould & Co. and of the Tract Society, as it is said is proposed to be done, the completion of said wall of four feet connecting with such wall of said Messrs. Morse, would be a very essential protection to the Society’s building, should the building of Messrs. Banks, Gould & Co. or Messrs. Morse, be on fire; and an equal protection to the buildings of Messrs. Banks, Gould & Co., and Messrs. Morse, should the Society’s building be on fire, and that the erection of the two said walls would be an important protection to the neighborhood.”</p> <p>This certificate was signed by eight presidents, secretaries and agents of fire insurance companies ; by the chief engineer, four ex-engineers, and four assistant engineers of the fire department, the president and three trustees of the Fire Department Fund, and two architects and builders.</p> <p>4. An affidavit made by John Stearns, Moses Allen and Richard T. Haines, supporting the answer in respect of the original purchase of the Spruce street lot, and the complainants allegations respecting the same; so far as they knew, they being the only surviving members of the finance committee of the Society at that period.</p> <p>5. An affidavit of John Knox, James C. Bliss, and William Forrest, who, with the three last named deponents, were the only surviving members of the executive committee of the Society in 1835; corroborating the answer, to the extent of their knowledge in the premises.</p> <p>6. An affidavit of the two secretaries, and the assistant secretary of the Society in like corroboration.</p> <p>The diagram below, represents the premises as they were when the motion, was made in December, 1846. *</p> <p>NASSAU STREET, SPRUCE STREET. 70' o > V & V A 4> & 46-4 Banks, Gould & Co. 144 Nassau St. 47-7 98 k¡ -4-9 & V Q Tract. Soc. Yard. 22*7 01-66</p> <p>At the place marked P, the complainants four story privy was situated, which they took down after the injunction was dissolved. Y, including the space P, exhibits their yard, as left after the privy was taken down.</p> <p>w is the place where the iron framed windows were inserted in their rear wall.</p> <p>a is the southwest corner of the Society’s building, from which to b, on the southwest corner of their Spruce street lot, they commenced building the- five story wall, or partition fence, complained of on this motion.</p>

<p>The sepulture of friends and relatives in a cemetery helohging to a religious society, confers no right or title upon the survivors, and they cannot prevent the sale of such cemetery by the corporation and the removal of the interred remains, where such removal is in other respects conducted according to law.</p> <p>The payment of fees and Charges to the corporation or its officers, upon interments, gives no title to the land occupied by the body interred. The payment confers the privilege of sepulture for the body in the mode used and permitted by the corporation ; the right to have the same remain undisturbed as long as shall be required for the entire decomposition of such remains, provided the cemetery shall so long continue to be used as such ; and the right, in case the cemetery shall be sold for secular purposes, to have such remains removed and properly deposited in a new place of sepulture.</p> <p>The conveyance of vaults or burying lots in a cemetery by a religious incorporation, confers a perfect right of property on the grantee, independent of any use of the same for sepulture.</p>

<p>This was a suit by creditors, to set aside an assignment as fraudulent. It came before the court on an order to show cause why a temporary injunction granted against the assignee, should not be continued.</p> <p>The assignment was executed by George H. Tingley to Ebenezer P. Robinson, and transferred all his property, for the payment of his debts in the order specified. The first and second classes of creditors were particularly described, and were preferred over all the other classes.</p> <p>The third class was marked out by a provision, making it the duty of the assignee, “ As soon as conveniently may be, shall cause a notice to be published in such newspaper or papers as he may deem best calculated to give information to the creditors of the said Tingley, requesting such creditors to tender their claims against the said Tingley to him at a reasonable time and place. And the debts owing by the said George H. Tingley, which shall come to the knowledge of said Ebenezer P. Robinson, on or before the day mentioned in the said notice,” other than those constituting the first and second classes, were designated as the third class, and were to be next paid by the assignee. All other debts of the assignor, were made the fourth class, and were not to be paid till the third class was paid in full.</p> <p>I. In the payment of the debts of an insolvent, the rule in chancery is, that equality among the creditors is equity; and the court leans against preferences. (Chancellor’s Opinion, in Boardman v. Halladay, 10 Paige, 229, &c.)</p> <p>II. An assignment for the benefit of creditors giving preferences, should be absolute and unconditional; should fix the preferences, either directly, or by reference to ascertainable facts at the time ; and should leave nothing to the action or discretion of the assignee. (Grover v. Wakeman, 11 Wend. 203; also, Barnum v, Hempstead, 7 Paige, 568, and 10 Paige, 223.)</p> <p>III. The debtor has no right to postpone the time when the limits of any preference are to be determined. (See Grover v. Wakeman, Opinion of Justice Sutherland ; also, in 4 Paige, 41.)</p> <p>IV. He has no right to leave the fixing of the limits of such preference, after the assignment, to himself, to the assignee, or to a third person ; and much less to chance, i. e., to the accident of debts coming to the trustee’s knowledge within a specified time.</p> <p>V. This assignment hinders and delays creditors, because the assignee cannot pay the third and fourth class at all, until the time to be fixed upon by himself shall expire ; as the rights of such creditors will not be determined until then. Whereas, the debtor and his trustee are bound to pay, as soon as they are able.</p> <p>VI. It is not a question whether fraud will be, but whether it may be committed, by an abuse of the powers conferred by an assignment. (See opinions in the cases above cited.)</p> <p>VII. The debtor is presumed to know the names of his creditors, and the amounts of their debts, and should have furnished a list, and should not leave the assignee to hunt it up or guess at it, and leave the preference to depend upon his success.</p> <p>VIII. The debtor has no right to attempt to compel the creditors to do any thing which they are not bound by law to do; e. g., to compel them, under a penalty of non-payment, to present their claims at a particular time and place.</p> <p>The form of this assignment was taken from 2 Humphrey’s Precedents, 1245. The assignee is rather restricted, than otherwise, in his discretion. It provides only what prudent assignees always practice. The assignee is bound to advertise immediately. No unnecessary or unreasonable delay is directed • there can be no delay other than is absolutely necessary. There is no reservation in favor of the debtor, either of property or control. The third class is in fact, the residuary class; the fourth was put in for more abundant caution.</p>

By the decree in this cause, (reported on the merits, ante, page 281,) the defendants were required, among other things, to assign, transfer and deliver to the complainant, all the state stocks remaining in the hands of De Launay & Co. as security for the notes held by them against The North American Trust and Banking Company; and to cancel and deliver up the notes executed to them by that company.

The bill was filed by Joel N. Hayes against John S. Heyer and Morris Ketchum, in respect of the concerns of a limited partnership, in which Hayes & Heyer were general partners, and Ketchum a special partner. The facts material to the case as reported, will be found in the opinion of the court, which embraces the decision of several motions made consecutively and at different times.

This case came before the court, on the petition of the defendant, and a cross petition on the part of the complainant; which with the papers referred to, exhibited the following facts.

The bill was filed for the specific performance of a contract for the sale of lands. The contract was set forth in the bill, and the answer of the defendant on oath was waived. The answer stated the possession of a contract by the defendant, and it referred to certain deeds of the complainant’s, which it was claimed had been furnished to the defendant for examination. It was not denied that the deeds belonged to the complainant.

The bill was filed in July, 1846, by A. L. Addison & Co., merchants, residing at New Orleans, against C. Burckmyer & Sons, of New York; together with Theodore Yietor and George F. Duckwitz, stating that the latter were the assignees of Burckmyer & Sons. The cause was heard on bill and answer, and on a stipulation, by which certain facts were agreed upon.

This was a motion to dissolve an injunction. The bill was filed by Charles H. Seymour, against Angus McDonald, together with Charles J. Richards, Alexander D. Wyckoff, Edward Yan Wart and William McCann. The four last named defendants put in a joint answer, and McDonald answered separately. The motion was made on the answers and on affidavits. Affidavits were also annexed to the bill, which waived an answer upon oath.

The bill in this cause was filed for the partition of lands which were the inheritance of Mrs. Postley, one of the complainants, who was an infant under the age of twenty-one years. Her husband claimed an interest in her undivided share of the premises, as tenant by the curtesy initiate. Postley and wife were the sole parties complainant. Two of the defendants appeared and demurred to the bill for want of equity. cited Wood v. Clute, 1 Sand. Ch. R. 201; 2 Hoff.

The suit was brought to foreclose a mortgage, executed by Townsend to the complainants. M. L. Voorhis was a junior mortgagee. Pending the suit, the mortgagor demised a part of the premises to Mrs. Sedgwick, and the rent was made payable to the complainants solicitor, as a further security for the debt due to them. The premises were ultimately sold on the decree in the suit, and the proceeds sufficed to pay off the complainants, without resorting to the rent.

This matter came before the court on exceptions taken to the master’s report, on passing the accounts of Mr. De Peyster as trustee under the will of Margaret Douglas, who died December 31, 1829. In October 1840, Mr. De Peyster became a trustee of the will, defacto, and so continued until May 9th 1845, under an agreement with his co-trustees, to perform the active duties, and receive the whole compensation of the trust.

The bill was filed December 12th, 1845, by Thomas McSorley and Mary his wife, against Joanna Wilson, Joseph Wilson, and Anne Wilson, to procure a partition of the real estate of which Robert Wilson died seised, and to that end to have the trusts of his last will and testament declared to be void, as well as to set aside the will itself. Joanna W. was the widow and executrix, and Mary McSorley and Joseph and Anne Wilson were the only children and heirs of the testator.

<p>Demurrer. The bill was filed for the specific performance of an agreement, dated April 10th, 1846, and contained in the following instrument, viz:</p> <p>“ This is to certify that 1 have sold to Mr. William L. Roy, the house and lot No. 227 Bridge Street, between Tillary and Johnson streets, for $4500 ; to be paid $2500 cash, and $2000 the balance, in ten lots at Paterson, of the late Alfred Lockwood, Robert Garrick estate.</p> <p>John Abm. Willink.”</p> <p>April 10th, 1846.</p> <p>“ I agree to take the property above mentioned, and to give to Mr. Willink a full and good title unincumbered in every shape and form for the ten lots at Paterson, and to pay balance $2500, on ascertaining that the title to the Brooklyn property is good.</p> <p>William L. Roy.”</p> <p>April 10th, 1846.</p> <p>The bill stated that after the making of the contract, the complainant with the permission of Willink, entered into possession of the house and lot, in Bridge street, and relying on the com tract being performed, repaired the house, and expended a considerable sum in such repairs and in improvements.</p> <p>That on the tenth day of April, 1846, one James Nazro of the city of Brooklyn, owned ten lots at Paterson, in the state of New Jersey, which did belong to Alfred Lockwood, since deceased, and were conveyed to him by deed dated June 1st, 1837, and were known by plat 59 containing four lots, plat 131 containing four lots, and the undivided half part of plat 22 containing two lots, when an attachment was issued in behalf of the complainant against Lockwood, and by a sale under the proceedings in that case, the same passed to Nazro, who held such lots in trust for the complainant, and that those ten lots were the only ten lots at Paterson owned by Nazro or by the complainant, or in which the latter had any control or interest, that were of the late Alfred Lockwood, and that belonged to the Robert Garrick estate.</p> <p>That on or shortly after the 1st of May, 1846, it was mutually ascertained by the complainant and Willink, that the title of Willink to the house and lot No. 227 Bridge street, and of Nazro to the above lots at Paterson contained in plats No. 59, 131 and 22, were good ; and that thereupon the complainant procured a warrantee deed containing the usual covenants, to be executed and acknowledged by James Nazro and his wife, by which those, plats 59,131, and the undivided half of plat 22, were duly conveyed to Willink; a copy of which deed was annexed to the bill. And on or about the 29th day of May, 1846, the complainant in fulfilment of the contract on his part, tendered the deed to Willink, and requested him to execute to the complainant a deed which had been prepared by Willink and handed to him for examination for the house and lot in Bridge street; and notified Willink that he was ready to make the cash payment of §2500, specified in the contract. That Willink took the deeds conveying the house and lot in Bridge street and retained it, and totally refused to execute it or any other deed to the complainant, and also wholly refused to receive the deeds executed by Nazro and wife.</p> <p>The bill then prayed for a specific performance and that Willink be compelled to receive the deed of the Paterson lots, and to convey the house and lot in Bridge street.</p> <p>The defendant demurred, 1. Because the contract was indefinite as to the lots intended to be conveyed. 2. The premises described in Nazro’s deed, are not shown to be those contracted for. 3. It does not appear that Nazro’s deed was executed, «fee. as is required by the laws of New Jersey, to pass his wife’s estate. 4. Nor that the complainant was ever ready to complete the contract on his part. 5. That Nazro, who has the title, is not a party to the suit so as to be bound by a decree. 6. For want of equity.</p>

<p>The revised statutes restrict the suspension of the power of alienation of real estate, and of the absolute ownership of personal estate, to lives; and authorize a limitation upon life only.</p> <p>They do not admit of such suspension for a term of years, however short, or upon a limitation dependent in part upon life, and in part upon a fixed period of time.</p> <p>A testator having a large real and personal estate, and having seven children, all under twelve years of age, devised and gave all his estate to his executors in trust, with full powers to lease, sell, invest and re-invest the same, for the purposes of the trust, which were as follows. They were to pay an annuity to his widow, (who died before the suit,) and were to apply so much of the estate as they should think proper, to the support and education of his children, until they respectively became twenty-two years of age. The testator gave to each of his five sons $10,000, to be paid to them by the trustees, at 22, and $5,000, to be paid to them at 25 years of age; and to his two daughters, each $3,000, to be paid at their marriage, with consent, &c., or at 22, if unmarried. The trustees, after providing for the payment of the foregoing legacies, &c., were to invest the whole residue of the estate as they should deem most safe and productive, and to pay the income thereof in equal parts to the children then living, and to the issue of either deceased, until the sons respectively should become 30. Each son, was at 30, to have and take his joint and equal portion of such residue of the estate. As to the daughter’s shares, they were to receive the income for life, as their separate estate, and on their death, the portion of each was to descend to their respective heirs, and next of kin. If either of the children should die, before the devises and bequests to them should vest or become due and payable, leaving issue ; the share of sueh child should not lapse, but such issue was to take his or her share, in the same manner as jf the parent had lived till it vested or became payable.</p> <p>Held, on the construction of the will, that the power of alienation, and the absolute ownership of the shares of the sons in the residue, was suspended until they should respectively become thirty; that those shares were not divisible or separable from the mass of the estate, until, and as each became thirty; that five-sevenths of the entire capital of the estate, was thus suspended without regard to any life or lives, for a fixed period of time; and that the trusts of the will were therefore void.</p> <p>The testator’s whole plan for the division of his estate, being in effect, destroyed by its conflict with the rules of law, the whole of the devises and bequests for the children, which were embraced in the trust, were declared void, and the estate directed to be divided, as upon an intestacy.</p>

The complainant moved for a receiver in this cause, and the defendants for a dissolution of the injunction.' The bill was filed by a judgment and execution creditor of Hamilton H. Jackson; late of the city of Brooklyn, deceased; against his heirs and assignees, to reach his real estate conveyed by him to the latter.

This was an application for the appointment of a receiver of The Jackson Marine Insurance Company, a corporation in the city of New York; and for an injunction, restraining the officers of the company from disposing of its effects. A temporary injunction had been granted, with an order to show cause. The petition of the creditors making the application, set forth various grounds in its support; most of which are mentioned in the opinion of the court.

<p>A creditor who takes out a warrant of attachment under the act relative to absent and concealed debtors, thereby obtains a lien upon the property of the debtor proceeded against.</p> <p>If the sheriff be prevented from levying the warrant on the debtor’s property, by means of fraudulent claims or transfers set up in respect cf the same, the court of chancery will aid the creditor in enforcing the lien, by injunction and otherwise 5 on the same principle that the court aids an execution creditor similarly obstructed.</p>

<p>The bill was filed December 31, 1846, by Rebecca T. Rice, an infant under six years of age, by Gilbert C. Rice, her father and next friend. It set forth that John Tonnele of the city of New York, the maternal grandfather of the complainant, died August 20,1846, leaving an estate, real and personal, worth from, three to four hundred thousand dollars. That he left a widow, two children, and three grandchildren by deceased children, his only heirs at law; the complainant as the sole issue of one of the deceased children, being entitled as heir at law and next of kin, to one-fourth of his estate, subject to the widow’s rights therein. That the decedent left a will or instrument purporting to be a will, by which he devised and gave the whole of his property, with some unimportant exceptions, to his executors in trust, and to be applied and distributed by them as directed in the will. Among the provisions in that behalf, was one directing the trustees out of the income of his estate, to apply five hundred dollars per annum, or so much thereof as they might deem necessary and proper, to the education and support of the complainant, and to accumulate the surplus, if any, for her use and benefit during her minority; and on her attaining the age of twenty-one years, to pay over to her the accumulations, and thereafter to pay her the annuity, during the life of the testator’s widow. On the death of the widow, instead of the annuity, the complainant was to have for her life, the income of a large amount of real estate; the surplus beyond her education and support during minority, to be accumulated, and the entire product paid to her when of full age, and after that period, she was to receive the whole income. Upon her death, the real estate was to vest in her issue; and if she left none, it was devised over to other issue of the testator.</p> <p>The executors named in the will, were the testator’s son, John Tonnele, Junior, his son-in-law Valentine G. Hall, and Francis E. Berger, William Penfold and George Hall. This will was dated October 22, 1844. It was propounded for probate before the surrogate, by V. G. Hall and his wife, and witnesses had been examined to prove its execution. The probate of the will was opposed by John Tonnele, Jr., one of the heirs, and witnesses had been produced and examined by him, to prove that the execution of the will was procured by undue influence. Other objections had also been taken to its validity as a will.</p> <p>The bill stated that the probate was still pending before the surrogate; and in the mean time the rents and profits of the testator’s real estate had been, and were collected by F. Blanchet, his old agent, by consent apparently, of all the adult parties in interest, for the benefit of those really entitled. That the complainant is in want of the means of support, her father being unable to provide for her support and education. That as she is advised, she is entitled to a provision for her education and support, to the extent of the five hundred dollars a year, whether the will be valid or void, and the whole sum is necessary for that purpose. Her father has made ineffectual efforts to obtain such allowance for her from the estate. The bill prayed that a receiver might be appointed of so much of the estate as might be necessary to effectuate the objects of the bill, with directions to pay over to the complainant’s father the allowance of five hundred dollars a year, or so much as to the court should seem meet, for her proper maintenance and education. The bill also prayed for general relief. The parties defendant in the bill, were the heirs, devisees, and next of kin of the testator.</p> <p>The complainant moved for a receiver. The motion was opposed on various grounds, and among others it was alleged that her father was able and ought to support her pending the litigation.</p> <p>in reference to the jurisdiction, cited 1 J. Ch. R. 57; 4 ibid. 100; 15 Ves. 445 ; 1 Bland’s Ch. R. 297; 1 Atk. 489 ; Macpherson on Inf. 105, 213 to 216. As to the father’s means and circumstances, 1 Ves. Sen. 160 ; 1 Cox Ch. C. 179; 1 Jac. and W. 647; 6 John. 566; Macpherson on Inf. 220.</p> <p>Hall and wife, insisted that the bill was unprecedented and unnessary. If the will be invalid, the father as guardian in socage, or a guardian appointed by the surrogate, can lease the complainants inheritance. (1 R. S. 718, § 5 ; 2 ibid. 151, § 5.) If the will be valid, the estate is in the trustees, and this bill is not exhibited against them. The counsel cited 1 Atk. 489, 578 ; 2 Bro. P. C. 539; 9 Mod. 40 ; 2 Eq. Cas. Abr. 468, pl. 16; 3 Bro. C. C. 88, and 500; 1 Sch. & Lef. 106; 1 Jac. & W. 151 ; 4 J. C. R. 100; Bing, on Inf. 148.</p>

Motion to set aside amendments to an injunction bill. The bill was filed and an injunction issued thereupon, on the 25th day of February 1847. On the 3d of March, none of the defendants having appeared, the complainant on motion ex parte, obtained an order granting him leave to amend his bill in certain particulars specified. The order contained no clause to the effect that it should be without prejudice to the injunction, and it did not allude to that process.

This was a creditor’s suit, in which the usual injunction was issued and served on Kelly, the judgment debtor, restraining him from disposing of his property in any manner. He immediately sold some carriages in his possession, and alleged to be his, received the price, and expended it in his support and personal expenses. The complainant obtained an attachment against him for violating the injunction.

The complainant claimed to be a creditor of the company, in respect of his note given to them for premiums in advance, for the security of dealers, under their charter; on which note, as he alleged, he was entitled to a compensation out of the profits earned in their business. He also claimed to be a stockholder of the corporation, by means of the same premium note.

Motions by the defendants Conklin and Mrs. Wyckoff separately, for a re-sale of mortgaged premises situate in Barclay street, in the city of New York. The mortgage in suit was executed for a part of the purchase money, by Conklin, for four thousand dollars, accompanied by his bond, and was owned by the complainants as executors. Conklin sold the premises subject to the mortgage, to Mabbett and Mulligan, who assumed its payment.

Motion to dissolve an injunction, restraining the defendants from carrying on the auction business, or selling goods at public auction, in the store number eighteen William street, in the city of New York ; and from conducting therein any business other - than the regular dry goods jobbing business.

The complainants, on filing the bill and executing the usual bond, obtained and served an injunction. On the answer coming in, they stipulated to dissolve the injunction. On the 10th of May, 1847, the defendant noticed the cause for hearing on bill and answer; after which, on the same day, the complainants entered an order dismissing their bill on payment of costs.

<p>This case came before the court on the plea and answer of Caleb T. Ward, to the bill of complaint. The bill is fully stated in the report of the case on the plea of Mr. Anthon, ante, page 97.</p> <p>The plea of Ward was interposed to all the relief prayed by the bill; and to all the discovery thereby prayed, save and except so much thereof as was answered at large in the answer accompanying the plea, (the portions so excepted being particularly specified in the introductory part of the plea ;) and it pleaded in bar, that one Thomas Hulme, previously to and on the twenty-first day of November, 1825, and thence until and at the time of the delivery of the deed, and at the payment of the consideration money hereinafter mentioned, was or pretended to be seised in fee simple, of all the lands and premises at Castleton, by that deed granted and conveyed to the defendant, free from all incumbrances and trusts whatsoever, and previously to and on the same twenty-first day of November, and until the delivery of the possession thereof unto the defendant, under the agreement hereinafter mentioned, was in the actual possession of all the same lands and premises. And the defendant believing, that Thomas Hulme was so seised and entitled, and that the land and premises were in fact free from all incumbrances and trusts whatsoever, on the twenty-first day of Nov., 1825, agreed with Thomas Hulme, for the absolute purchase of the fee simple and inheritance thereof, for the price or consideration of five thousand nine hundred dollars, to be paid by the defendant to Thomas Hulme, and that in pursuance and execution of such agreement afterwards, on the seventh day of March, 1826, a certain indenture or deed of conveyance, bearing date the seventh day of March, 1826, between Thomas Hulme and Alice his wife, of the one part, and the defendant of the other part, was duly made.and executed, and by that indenture Thomas Hulme and his wife, for and in consideration of the sum of five thousand nine hundred dollars, acknowledged in the indenture to have been paid to them by the defendant granted, bargained, sold, aliened, remised, released, enfeoffed, conveyed and confirmed unto the defendant, his heirs and assigns forever, all those certain messuages, dwelling houses, lands and premises, situate in Casleton, in the county of Richmond and state of New York, bounded as follows : (describing the same at large.) To have and to hold the granted, bargained and described premises, and every part and parcel thereof, with the hereditaments and appurtenances, unto and to the sole and proper use, benefit and behoof of the defendant, and his heirs and assigns forever; and in which indenture of conveyance is contained a covenant of Hulme with the defendant; (setting forth the same as it was stated in the bill of complaint.) That such indenture, was duly acknowledged and recorded as is set forth in the bill. And the defendant averred that the sum of five thousand nine hundred dollars, the consideration money so agreeed to be paid by the defendant and in the indenture mentioned, was actually paid by the defendant, and that the same was paid with interest as follows: on or about the twenty-first day of November, 1825, five hundred and ninety dollars ; on or about the twenty-eighth day of December, 1825, fourteen hundred and ten dollars; on or about the twenty-first day of March, 1826, five hundred and fifty dollars; on or about the third day of October 1826, three thousand three hundred and fifty dollars 3 which last mentioned sum was the whole of the .consideration money, with whatever interest was due thereon, .and was received and accepted as such, and the defendant thereof forever acquitted and discharged. And the defendant did also aver, that at or before the respective times of the execution of such indenture by Thomas Hulme and his wife, and of the payment of such purchase money, and the delivery of the same .deed, he the defendant had no notice whatever of any trust or incumbrance that in any wise affected the lands and premises in the hands of, or as against Thomas Hulme, or that as against-Thomas Hulme, the complainant, as one of the heirs at law of Daniel D. Tompkins in the bill mentioned, either separately or jn conjunction with the other heirs at Jaw of Daniel D. Tompkins, or in conjunction with any one or more of such heirs, had any such right, title, interest, claim, or demand, in or to the lands and premises, or any part of them, as is for that purpose by him the complainant set up and alleged in his bill of complaint, or that the lands and premises, or any of them, or any part thereof, had been acquired by Thomas Hulme, or were held or sold by Hulme, in violation of any trust, or by means of, or with pny fraudulent practice, or intent. And the defendant averred, that he did not, either in making the purchase of the lands and premises, or in receiving the deed of conveyance thereof, com, mit, or practice any such fraud or covin, as is for that purpose by the complainant in his bill alleged, nor any fraud or covin whatsoever. And the defendant insisted that he was a bona fide purchaser of the lands and premises in question, for a good ¡and valuable consideration, without any notice of the equities, interest, or rights claimed by the complainant, and without any fraudulent practice, collusion, combination, or intent whatsoever, of him the defendant.</p> <p>The defendant, not waiving his plea, but relying thereon, and for better supporting the same, and for answer to the residue of the bill, said; that the defendant had no notice at or before the time of purchasing the premises, or the payment of the purchase mPP.ey therefor by him, or the delivery pf the deed to him above mentioned, that Thomas Hulme stated, or that at the time Hulme obtained, or is alleged to have obtained, the decree of sale mentioned in the bill, or at any time thereafter until or at the time of the conveyance of the lands and premises at Castleton, by Hulme to the defendant, he, Hulme, actually and truly intended to take and hold any right, title, or interest which he might acquire, or had acquired, in those lands and premises at Castleton, by or under the decree, sale and master’s deed mentioned in the bill, or any of them, or under any decree, sale or master’s deed whatsoever, merely as a security for the payment unto himself, of such balance as might be due unto him from Daniel D. Tompkins or his estate, upon the account mentioned in the bill, or any other account, and to allow such right, title or interest to be redeemed against and extinguished by Daniel D. Tompkins his heirs or his assignees, or alleged assignees, on payment of such balance, in like manner as the same lands and premises, might have been redeemed from the lien and operation of the mortgage alleged in the bill, before the decree of sale stated in the bill, upon the payment of the moneys due upon the alleged mortgage, and costs, or otherwise ; and the defendant had no knowledge or information of such alleged intention or statement of intention, except from the allegations of the bill of complaint, which allegation however the defendant believed to be untrue.</p> <p>That on the contrary thereof, Hulme claimed to hold the lands and premises purchased by the defendant, not as a security, but as his own individual property, in full and absolute title, and a right to use, occupy, enjoy, and dispose of the same, according to his own will and pleasure, without any liability to account to any person whatsoever; and that Hulme, as having such full and absolute title, exercised over those lands and premises and other lands acquired by him under the same title, all ordinary acts of ownership and disposition, as such absolute owner, and without objection or complaint, so far as was known to the defendant, of any person whatsoever.</p> <p>That at, or before the purchasing of the premises, or the payment'of the purchase money therefor by the defendant, or the delivery of the deed to him above mentioned, he had no notice, that Hulme, before his bid mentioned in the bill, or at the time thereof, or afterwards, expressly and solemnly or otherwise declared to Tompkins, or to others, that his intention was as before expressed, or that he assured Tompkins, that the whole benefit and advantage of the bid and purchase mentioned in the bill, should enure to the use of the trust estate, alleged to have been created by the indenture or deed of assignment mentioned in bill, and to the consequent benefit of Tompkins, his heirs and assigns, after the payment of the debts intended to be provided for by such indenture or deed of assignment, or to the use of any trust estate created by any indenture or deed of assignment whatsoever, and to the consequent benefit of the said Daniel D. Tompkins, his heirs and assigns, after the payment of the debts intended to be provided for by any such assignment; and the defendant had no knowledge or information of such alleged declarations, or assurances, except from the bill, but he believed the statements of the bill in that behalf to be untrue.</p> <p>That at or before the time of the purchasing of the premises, or the payment of the purchase money therefor by the defendant, or of the delivery of the deed to him above mentioned, he had no notice of the execution of any instrument in writing by Thomas Hulme, being a declaration of trust, or of the delivery thereof to Daniel D. Tompkins, whereby Hulme acknowledged, testified, or declared, that by virtue of a certain trust and confidence between him and Tompkins, he, Hulme, held, and would hold, all such right, title, and interest as he had acquired, or might acquire by such decree, bid, and master’s deed, as are alleged in the bill, to the use and intent in that behalf specified ; that the defendant had no notice of the existence of any declaration of trust, subscribed or executed by Hulme, in relation to such right, title and interest, or to any right, title or interest of Hulme, in the lands and premises at Castleton. That the defendant never knew, or heard of any such declaration of trust until the filing of the bill of complaint; that he never had such declaration, or a copy thereof in his possession, nor ever saw them, or either of them, to his knowledge or recollection, in the possession of any other person, nor does he know, nor has he been informed, except by the bill, nor does he believe that such declaration of trust exists, or ever did exist.</p> <p>The answer then traverses in like manner, notice of Hulme’s ever representing or stating his design in bidding, as charged in the bill; and notice of the alleged accounting between Hulme and Tompkins, and the balance found, and the manner in which the account was made up, and items thereof; also notice that Hulme received and was paid the whole balance so found due to him, and alleged that the defendant did not believe that any such payment was ever made.</p> <p>The answer further traversed, that before the time of the death of Tompkins, a sufficient sum or amount had been realised and received by Hulme and his co-assignees, or some one or more of them, from other the estate alleged to have been assigned, to pay and satisfy the entire indebtedness of Daniel D. Tompkins to Thomas Hulme, and which was properly applicable to the purpose ; and it denied that the defendant had any knowledge or notice thereof.</p> <p>The answer explicitly denied that the lands and premises at Castleton, so purchased by the defendant, or any of them, or any part thereof, were occupied, used, or enjoyed by Daniel D. Tompkins up to the time of his death, as is stated in the bill, or that Tompkins continued to use, occupy, and enjoy the premises after the same were bid in, or are alleged in the bill to have been bid in, or Hulme acquired or claimed to have acquired title to the premises, in the same manner as before; but on the contrary thereof, that during the lifetime of Tompkins, and at and long before the time of the purchase of the premises by the defendant, Hulme was in the possession, occupancy, and enjoyment of the premises as the owner, and claiming to have the absolute title thereof, and that on the purchase of the premises by the defendant, he entered into the full possession, occupancy, and enjoyment of the same, and that he and those claiming under hits, hold, and have ever since continued to hold the same.</p> <p>The defendant also expressly denied, upon personal knowledge as regarded himself, and upon information and belief as regarded Hulme and others, that a few months after the death of Tompkins, and in or about the month of November, 1825, or at any other time, the lands and premises at Castleton, or any part thereof, were exposed for sale at the Tontine Coffee House in the city of New York, by or under the direction of Hulme, Pierson, Tooker, Smith, Prall, and the defendant, or by or under the direction of some, or one of them, as assignees, under the indenture or deed of assignment mentioned in the bill, or as assignees under any indenture or deed of assignment whatsoever; but the defendant stated the fact to be, that on or about the twenty first day of November, 1825, at the Tontine Coffee House in the city of New York, the usual place at that time for public sales in that city, as the Merchants Exchange is at present, the lands and premises so conveyed by deed to the defendant, were exposed by Thomas Hulme to fair and open public sale, as his own private property, and as such private property were fairly and publicly sold to the highest bidder.</p> <p>That after the lapse of more than twenty years, with nothing to impress circumstances of that nature upon his memory, the defendant cannot undertake to name, and was unable to name, the persons who were present at such public sale, by Hulme, except that the defendant was present at the sale, which was after the usual public notice continued for three or four weeks, and a large company, the defendant should think two hundred persons were present, and there was considerable competition at the sale. That he remembers Ichabod Prall, and he thinks, Benjamin Wood, and Thomas Hulme, as well as the defendant, were present at the sale.</p> <p>That at such public sale by Hulme, the lands and premises so exposed by him for sale, were bid off by Ichabod Prall for the benefit of the defendant, at the sum of five thousand nine hundred dollars, but the defendant denies that such lands and premises were bid in by him, or by Prall for his benefit, or under any secret agreement with him, that he should have the benefit of the bid so made, or to be made.</p> <p>That he admits that the lands and premises, containing about two hundred and fifty acres, exposed for sale by Hulme as aforesaid, were offered at such sale in one parcel; but he denies that they were offered for sale in one parcel, when they were properly and conveniently saleable, or any more properly and conveniently saleable in separate parcels; or that the same were either bid in, or bid off by, or for the defendant, at the sum of $5900, when in truth and in fact they were worth a much larger sum. of money. On the contrary, he affirmed that upon such purchase of Hulme by the defendant, he agreed to pay and in truth and in fact paid a full and valuable consideration therefor, that he paid the same at the times and in the amounts stated in the foregoing plea, and that the sum of five thousand nine hundred dollars bid for the land and premises, was all that the same were worth, or would bring in the market. That they composed a mountainous tract of almost entirely uncultivated land, producing little rent or income of any sort, and having very few improvements thereon, and those of inconsiderable value. And that the year 1825, in which the same were sold, was a year of great commercial disaster,* and financial revulsion, by means whereof the value of real estate in the market, and especially of real estate of the description of those lands and premises, was much depressed.</p> <p>The answer then denied, that the defendant, or any of the persons described in the bill, stated, or gave out at or before the time of last mentioned sale, that such lands and premises were to be bid in at such sale for the benefit of Mrs. Tompkins, the mother of the complainant and widow of Daniel D. Tompkins, and her family, or either of them, or that a report to that effect, was circulated by the defendant, or by any of the co-assignees, or otherwise circulated among those who were present at such sale. And if any such statements were made or any such report circulated, it was without the defendant’s knowledge, approbation, or consent. And he had no notice thereof at the time of his purchase, or at the time of the payment of the purchase money therefor, or at the time of the delivery of the deed to him. And he denied, that in consequence of such alleged statements or report, many or any of those present were prevented from bidding at the sale.</p> <p>That ten per cent of the purchase money, at the time of the last mentioned sale, was paid by the defendant, and that all subsequent payments were made by him, and the receipts, copies whereof were annexed to the answer, and the receipt in the consideration clause of the deed were taken therefor; that the ten per cent was paid by Prall to Hulme, and by the defendant on the same day to Prall; and he denied, that before the sale took place, he entered into or made an arrangement to borrow money for the purpose of paying the ten per cent.</p> <p>That the defendant was and is wholly ignorant, and therefore denied that the lands purchased by him, had been, prior to the sale, redeemed from the lien of the indenture of mortgage alleged in the bill; and from the sale of the premises, and from the operation and effect of the decree alleged in the bill, in the manner stated in the bill, or otherwise.</p> <p>That the deed from Hulme and his wife, to the defendant, was executed, as is set forth in the bill, and was for the actual consideration of five thousand nine hundred dollars, and was neither a pretended deed, nor for a pretended consideration, but was on a fair purchase, and on a fair and valuable consideration. That the deed must have been delivered to him after the acknowledgment thereof on the seventh day of March, 1826, and before the recording thereof on the eighth day of October following, but he is unable to fix the precise date of such delivery, but believes it was at the time of the last payment, that is to say, on the third day of October, 1826.</p> <p>The defendant denied, that at the time of the delivery of the deed, he knew, or had any notice, that the indebtedness of Daniel D. Tompkins, and of his estate to Hulme, had been paid in full, or that the lands and premises granted, and conveyed in the deed, had been redeemed, from the lien and incumbrance of the mortgage alleged in the bill, and from the sale stated to have been made under the decree therein alleged, and from the operation thereof, if any it had ; and also denied that he knew, or had any notice of any declaration of trust, subscribed by Hulme or of the representations of Hulme, stated in the bill to have been made to Tompkins, touching the alleged sale in May, 1822, and the alleged master’s deed.</p> <p>The answer admitted that some time in the year 1826, but how soon after the delivery or recording of the deed to the defendant he is unable to state, a suit was commenced in the court of chancery of this state, in the names of Thomas Hulme, Isaac Pierson, Edmund Smith, Ichabod Prall, ■ and the defendant, (Samuel Tooker, then being dead,) in the alleged capacity mentioned in the present bill of complaint, and in the names of Joseph G. Swift, Thomas Hyatt, and Edmund Smith, as trustees under a certain other alleged trust in favor of Daniel D. Tompkins, and that a bill was filed in that suit against George W. Tompkins, the brother, and Hannah Tompkins, widow of Daniel D. Tompkins, administrator and administratrix of his goods, chattels, and credits, for the alleged purpose of closing their several and respective trusts, and for other purposes; but the defendant says that the bill, in the names of Thomas Hulme and others, was not signed by him, nor sworn to by him, nor was it seen by him, nor submitted to him at the time, or before the same was filed, nor was he consulted in relation to the contents thereof, nor was such suit commenced at his instance, nor by his direction.</p> <p>That he is now informed and believes, that in the last mentioned bill it was, among other things alleged, that as Thomas Hulme, in making the purchase, mentioned in that bill, of the lands and premises at Castleton, had no other design than that of securing as much as possible of the debt then due to him of Daniel D. Tompkins, and as the price at which the premises were purchased by Hulme, as stated in that bill, was considered to be less than the real value thereof, Hulme, at the time and place in the last mentioned bill stated, voluntarily exposed the premises to a further public sale, with intent, and for the express purpose of appropriating to the use of the trust estate, alleged in that bill to be in the hands of Hulme, Pierson, Smith, Prall, and the present defendant, by way of gift or donation, any excess or surplus by which the price to be obtained for the premises upon such further sale, might exceed the previous purchase thereof by Hulme ; and in case the further sale should produce no such excess or surplus, or should produce less than the principal and interest of the previous sale, the alleged trust estate was in no event to sustain any loss on that account. That Hulme, however, expected and offered the premises to further sale, upon the distinct consideration that all necessary and proper charges and expenses to which he had been, or might be put in attending upon, or managing the various concerns and interests of the trust estate alleged in that bill to be in the hands of the plaintiffs therein, would be freely allowed and paid to him in the adjustment of his accounts with the estate.</p> <p>That the defendant is informed and believes, and therefore admits, that, in conformity with these allegations of that bill, and for the purpose of carrying out the alleged intent of Hulme, to appropriate the excess and surplus of the proceeds of the premises, to the uses of the alleged trust "estate, by way of gift and donation, and for no other, or different purpose, and with no other, or different effect, an account rendered was filed in that cause, with Thomas Bolton, then one' of the masters in the court of chancery, in April 1838, or about that time, wherein the trust estate, alleged in that bill to be in the hands of Hulme, Pierson, Prall, Smith, and this defendant, as such assignees or such surviving assignees, was credited with the purchase money of the lands and premises at Castleton, paid by this defendant, the same being however expressly stated in such account to be, “T. Hulme’s estate on Staten Island,” and was also credited with all the receipts by Hulme from the lands and premises subsequent to his purchase thereof, and charged with all expenses incurred by him, in relation to such lands and premises, and of course credited with the rents received, and charged with the taxes paid, as charged in the present bill of complaint; but the defendant had no personal connection with the preparation and rendering of that account, and according to his best recollection and belief, was not aware of the existence of such an account, until the filing of the present bill of complaint.</p> <p>That after the last mentioned hill was filed, and while the suit thereby commenced, remained undetermined, and sometime in the year 1827, Thomas Hulme executed and delivered to this defendant, a paper, or instrument in writing, a copy whereof is set forth in the bill, bearing date, the second day of February, 1827.</p> <p>The defendant denied that at the time Hulme executed that paper, or at the time this defendant received the same, or at the time he caused the same to be filed in the office of the clerk of the county of Richmond, he knew, or had notice that the mortgage, therein alleged to have been made, and executed, and registered, had not been redeemed, paid off, satisfied or discharged in the manner therein stated; but that on the contrary the lands and premises in the mortgage described, had been redeemed from the operation and lien thereof, and of the decree founded thereon, and from the sale made under such decree, by the actual payment and satisfaction of the original mortgage debt, and not otherwise.</p> <p>The defendant further expressly denied that the deed by Hulme and wife to him, and the paper or satisfaction piece, or either of them, were signed, executed, or delivered, for the purpose of covering or concealing the real, and true estate, condition, title, or ownership of the lands and premises at Castleton, or thereby to prevent or defeat any investigation of the heirs at law of Daniel D Tompkins, concerning the same, or that they, or either of them were signed, executed, or delivered, for any fraudulent purpose, ór purpose of concealment whatsoever, or for any other uses and purposes, than those apparent upon the face of the instruments. The answer admitted defendant’s claim of title to the lands and premises at Castleton, and denied that the complainant, or any of the heirs or creditors of Daniel D. Tompkins, or any trust created by any indenture or deed of assignment, is in any wise interested, or entitled unto such lands and premises, or any part thereof, at law, or in equity.</p> <p>The answer then denied several specific charges of fraudulent intent and breach of trust contained in the bill.</p> <p>The answer admitted that at the time, and for a long time previous to the execution of the assignment, alleged in the bill, and until the death of Daniel D. Tompkins, the defendant, was a friend of his, but it denied that he was the confidential agent of Tompkins during that period ; that for a considerable period prior to the time of the alleged execution of the assignment, the defendant, had charge of various matters of business in which Daniel D. Tompkins was interested, confided to him by Tompkins, and in regard to which, relations of friendship and confidence subsisted between them, but that at or about the time of the alleged execution, such agency of the defendant terminated. And he denied, that subsequently he was the confidential agent, or the agent of Daniel D. Tompkins, or that he ever was the confidential agent of Daniel D. Tompkins in matters of real estate. That prior to the time, or about the time of the alleged execution of the assignment, the defendant was well acquainted in general, but not intimately acquainted with the business, property, and affairs of Daniel D. Tompkins; but that after that time the active management of such business, property, and affairs fell into new hands, and the defendant had very little knowledge or information in regard to them.</p> <p>The answer admitted that at, or before the time of the delivery to the defendant of the deed of the lands and premises, purchased by him at Castleton, being on or about the third day of October, 1826, the defendant, entered into the possession and enjoyment of them, claiming to be the absolute owner thereof; but according to his recollection and belief, he entered into such possession and enjoyment under his agreement to purchase, immediately, or soon after the lands and premises were bid off for him as already stated, viz. immediately or soon after the twenty-first day of November, 1825.</p> <p>Annexed to the answer were copies of four receipts, three purporting to be signed by Thomas Hulme, in one of which he receipted the ten per cent, as being paid by Trail; and in another he receipted $1410, as paid to him by the defendant on account of an estate sold to Trail; and in the third he receipted $550, as paid by the defendant on account.</p> <p>The receipt of Trail, was to Ward, for the ten per cent, paid on the sale, and was dated on the day of the sale.</p> <p>I. The defence in this case is a proper subject for a plea.</p> <p>1. It reduces the case to a single point, viz : The character and effect of the defendant’s purchase of the lands in question.</p> <p>2. The plea tenders a material issue, viz: That the defendant purchased the premises in question for a valuable consideration, and without notice of any trust or incumbrance affecting them or of any of the facts or circumstances alleged in the bill for the purpose of showing title, and without any fraud on the part of the defendant.</p> <p>II. The plea is good in form and substance.</p> <p>1. It avers that Thomas Hulme, of whom defendant purchased, was or pretended to be seised in fee of the premises in question, and that he was in the actual possession thereof at the date of the agreement and until the delivery of possession thereunder to the defendant. That defendant purchased for a valuable consideration, which was fully paid by him ; that he had no notice at the time of the agreement, or of the deed, or of the payment of the purchase money, of the title set up by complainant in his bill, and that he did not in making such purchase or receiving such deed, commit or practice any of the fraudulent acts alleged in the bill, or any fraud whatever.</p> <p>2. All the facts and circumstances alleged in the bill for the purpose of charging defendant with notice or fraud, and depriving him of the character and immunities of a purchaser for a valuable consideration without notice, are met by general denials in the plea, and as to all such matters the answer makes discovery as required by the bill, and explicitly denies all actual notice or fraud, and every fact or circumstance from which notice or fraud could be inferred.</p> <p>III. There is nothing in the matters contained in the bill, and not denied in the plea, to counterprove the plea.</p> <p>1. The assignment of the 15th January, 1822, having expressly reserved to each of the trustees, all his rights and remedies under prior liens, the sale under the decree of foreclosure and the master’s deed thereupon, vested in T. Hulme individually, an absolute title to the premises described therein for his sole and exclusive use.</p> <p>2. The complainant, as a privy, claiming under a party to the suit of foreclosure, whether by descent or through the assignees of such party, is bound by the decree, which of itself extinguished the equity of redemption. Hulme as mortgagor had a right to purchase, and his purchase is not impeached. The law therefore took the lands out of the original trust, and vested them in him to his sole use.</p> <p>3. The trust created by the assignment, having entirely ceased after the execution of the master’s deed to Hulme, to apply to the real estate described therein, it was competent for him to sell, and for the defendant to buy, such real estate, for their own individual and exclusive benefit.</p> <p>4. The other matters alleged in the bill and not denied, are perfectly consistent with the case made by the plea.</p> <p>cited Calvert on Parties, 102 ; Jackson v. Hoffman, 9 Cow. 271; Brown v. Frost, 10 Paige, 243 ; 1 Rev. Laws, 78, 79, §§ 10, 12 to 14; Brewster v. Power, 10 Paige, 562; 1 Daniell’s Ch. Pr. 36, 37 ; Walter v. Glanville, 3 Bro. P. C. 366 ; Wormley v. Wormley, 8 Wheat. 421.</p> <p>in reply, referred also to Bank of Utica v. Messereau, 7 Paige, 517 ; Bogardus v. Trinity Church, 4 ibid. 194; Willis’s Eq. Pl. 568; Wigram’s Points on Discovery, 162 to 181; Mitford’s Pl. by Edwards, 239, 240 note, 261 note s., 276, 277, 299 ; Bolton v. Gardner, 3 Paige, 273.</p> <p>I. The plea of the defendant Ward, is bad for duplicity and multifariousness, because,</p> <p>1. It sets up a bona fide purchase from Hulme, without notice of the trust under which he held, or the redemption which had taken place; and,</p> <p>2. It denies and puts in issue the personal fraud and breach of trust, imputed to Ward himself, in bringing about the sale of November, 1825, and causing it to be conducted in a manner detrimental to the estate or family of D. D. Tompkins, for his (Ward’s) own benefit.</p> <p>This plea is in bar to the whole bill, and an answer to the whole discovery. It loses sight of the great object of a plea, to reduce the case to a single point. (Mitford’s PL by Edwards, 340, note 1.)</p> <p>II. The plea is also bad, inasmuch as the payment of the purchase money is not alleged to have been made to Hulme. This is not an inadvertent slip in pleading ; for it is presumable from the case stated in the bill, and the admissions in the answer, that no such payment ever was made to Hulme ; although it is probable that such a payment was made into the trust fund of the Tompkins estate. (Willis’s PI. 568, and notes.)</p> <p>III. The plea is overruled by the answer, because,</p> <p>1. The answer denies the facts alleged in the bill, in respect</p> <p>to the trust in, and redemption from, Hulme; and does not confine itself to denying the notice of such facts, or to denying circumstances brought forward in the bill as evidence of such notice. The bill alleges no fact or circumstance as evidence that Ward had notice. It merely alleges the naked fact, that he had notice. (Saunders v. King, 6 Madd. 61 ; Evans v. Harris, 2 Ves. & B. 363; Thring v. Edgar, 2 Sim. & St. 274.)</p> <p>2. The whole matter of the bona fide purchase, without notice, and full payment of the consideration money, as alleged in the plea, is repeated in the answer.</p> <p>3. The fraudulent breach of trust on the part of Ward himself, which is denied in the plea, is in like manner again denied in the answer. (Milligan v. Milligan, 3 Cranch, 220; 3 J. C. R. 388 ; 3 Paige, 276.)</p> <p>IV. The bill in this case, is founded on a complicated fraud, consisting of many circumstances; and is not capable of being reduced to a single point, and put in issue by a plea. The sufficiency of the bill itself, does not come in question. (Dows v. McMichael, 6 Paige, 139 ; Bogardus v. Trinity Church. 4 ibid. 195 ; Mitf. Pl. 312, 379, 380, notes.)</p>

Motion to set aside a bill of review. F. 0. Field was one of the infant defendants, in the suit of Williamson and others v. Field and others, reported ante, Vol. 2d, at page 533, The decree in that suit, directing a redemption, and the taking of various accounts, and reserving all other questions and direct tions, was entered September 13, 1845.

This was a petition by the trustee oi an express trust, that his accounts might be passes, a new trustee appointed, and the petitioner discharged from the trust by the order of the court. The beneficiaries did not object to the substitution of anew trustee, but insisted it should be at the expense of the petitioner, and that the estate be not subjected to double commissions.

Exceptions to the report of a master, on the allowance proper to be made to Michael Burke, the father and general guardian of Mary R. and Margaret J. Burke, infants, of the ages of about thirteen and eleven respectively. The principal facts involved, were as follows : The mother of the •infants, Catharine A. Burke, was the daughter of James I. Roosevelt, now deceased.

These were separate foreclosure suits, the complainant’s mortgage in each, being upon a single house and lot. The defendant, N. C. Ely, had a single junior mortgage, embracing all three houses and lots. He entered his appearance in each suit, and his solicitor attended the references and sales in each. The reference, and the sale in each case, were conducted by different masters;. The decrees were in the usual form, not mentioning any of the junior liens.

After the making of the decree in September, 1845, dismissing the bill filed to set aside the will of John Mason, on the ground of the illegality of the trusts of the will, as reported in Mason v. Masopls Executors, (2 Sand. Oh.

<p>In ascertaining facts relative to the possession and claim of lands, which occurred more than a century prior to the inquiry, courts receive evidence, which would be inadmissible, if offered to prove events occurring within the period of the memory of living witnesses.</p> <p>In such cases, the statements of historians of established merit, (as to facts of a public and general nature;) the recitals in public records, in statutes and legislative journals ; the proceedings in courts of justice, and their averments and results 5 and the depositions of witnesses in suits or legal controversies; are received as evidence of facts to which they relate; but always with great caution, and with due allowance for its imperfection and its capabjlity of misleading.</p> <p>On this principle, the parties were allowed to read in evidence, the clerk’s minutes of a trial had eighty-five years previous, affecting the possession of the same land ; depositions or affidavits taken before a judge, ninety-four years previous, also sixty years previous, apparently for use in a judicial proceeding respecting the possession ; recitals, boundaries and designations, touching the same land, contained in statutes and public grants and charters; other proofs of a name or designation, commonly and notoriously applied to the land in question; ancient maps and the descriptions and delineations thereon ; and an authentic history of the province at large.</p> <p>In proving an ancient possession and its character, the counterparts of leases executed by tenants to the party claiming to have been in possession, produced from the proper custody ; are admissible in evidence, without any proof of the execution of the corresponding lease executed by the landlord.</p> <p>Letters patent of land, are emauations from the sovereign power, the evidences of the pleasure or bounty of the government, and are attested by the governmental authorities, as public acts.</p> <p>Being alienations by matter of record, letters patent do not require the signature</p> <p>' of the sovereign or the governor to render them valid. The grant is of record in the government offices ; the letters patent are a transcript of the grant, authenticated by the great seal.</p> <p>In grants of lands by the colonial governors, they did not act as mere private attorneys or agents of the sovereign. They were executing the sovereign power, as viceroys or representatives, in the name of the king, and in the same forms as if they had been executed by him.</p> <p>In the colonial legislation, statutes enacted by the assembly and approved by the governor and council, were valid and operative immediately ; they continued in force unless they were disapproved by the king ; and upon that happening, they became annulled.</p> <p>Bights which were acquired under a colonial statute, after its passage, and before it was disapproved by the sovereign, were not abrogated or impaired by such disapproval,</p> <p>Where one enters upon land, under a deed in terms conveying the whole in fee> executed by several persons described as heirs of the party last seised ; the presumption of law is that he entered in severalty, claiming the whole land in fee adversely to all the world ; although it should be made to appear, that there were other heirs, tenants in common with his grantors, who did not execute such deed.</p> <p>To found the defence of adverse enjoyment under a claim of title, it is immaterial whether the claim be made under a deed valid in form, or under one wanting in all the essentials of a proper conveyance.</p> <p>An actual occupancy by one claiming the title, is a good adverse possession, without any written evidence of title.</p> <p>Where land has been held in possession for eighty years under a grant of the whole, claiming the whole title ; the title thus acquired, cannot be shaken or impaired by an admission made by its then owner, that the grantor in such original grant, was only a tenant in common ; nor by proof of the fact that he was such tenant in common.</p> <p>A tille, which has become perfect by an adverse possession extending beyond the period of limitation, is not affected by an entry made by one who by descent is the owner of the true title which is thereby barred.</p> <p>The latter, if he maintained his entry, would be turned out in an ejectment, on proof of the title by adverse possession.</p> <p>Such an entry, differs in no respect from that of a stranger to.the title. If made upon a tenement temporarily vacant, ,the party is an intruder ; if by the consent or yielding up of a tenant, the possession of the landlord is not disturbed.</p> <p>An entry into land, is not valid as a claim, unless an action be commenced thereon within one year after it is made, and within twenty years from the time when the right to make such entry accrued or descended. Such has been the rule of law for two hundred years, and it is now a statutory provision.</p> <p>Where a corporation, whose income is limited by its charter, receives a grant of land of an annual value below such limit; its title to the same is not affected by the subsequent increase of the income therefrom to a point beyond the chartered limitation.</p> <p>If the income exceed the prescribed limit at the time of the grant, it is a question between the corporation and the sovereign power, in which individuals have no concern, and of which they cannot avail themselves in any mode against the corporation.</p> <p>Where there are negative averments, in a plea of adverse possession claiming title in severalty, to the effect that the defendant has never paid or accounted for any rents or profits ; and has never held or possessed the land in common, or undivided, &e.; the principal burthen of proof is upon the complainants. The defendants are only bound to raise a presumption from their acts in respect of the property, its use and disposal, that no such facts exist ; which presumption must be rebutted by proof on the other side.</p> <p>In support of a plea in equity, the defendants are bound to prove only its substance, and to such an extent as will maintain the bar which it interposes to the suit. Where the defence stated in the plea, was an adversé possession under a claim.of title exclusive of any other right, for a period of one hundred and twenty-five years, before the suit; the legal point of the defence is, that the defendant has maintained such possession long enough to bar a writ of right; and proof of such a possession and claim for sixty years anterior to the revolution,’was held to support the plea. And the like proof for forty-four years next preceding the suit, was held to support the plea, irrespective of the prior possession.</p>