Volume 5 — New Jersey Equity Reports

<p>The bill in this case was filed on the twenty-eighth of January, eighteen hundred and forty-five, by devisees under the will of Benjamin B. Cooper, deceased, against the defendant as an executor of and trustee under the will, for an account, and for an injunction restraining him from' any further exercise of power as executor or trustee, and from cutting timber on the lands of the estate.- The injunction was granted as prayed for. The defendant filed his answer, and thereupon moved to dissolve the injunction. The facts will sufficiently appear in the opinion of the court.</p>

<p>The bill in this case states, that in eighteen hundred and thirty-nine, the complainaut and Lewis M. Hatch and Daniel P. Fleming, were partners in trade in New-Yorlr, under the name and style of A. M. Hatch and Company. That said firm became embarrassed, and was subsequently dissolved ; having before the dissolution become indebted to .the defendant, David Daniels., for goods furnished them by him, for part of which ■they gave to said defendant their -partnership notes, the other part of said indebtedness remaining in the shape of book account against .them.</p> <p>The bill then charges that Fleming, one of the said firm, on a fair adjustment of accounts with the complainant, would, as the complainant believes, be much -indebted to him, but that he had left New-York and gone to reside at Charleston, South-Carolina; “and that complainant has reason'to believe, and does believe, and therefore charges, that Fleming has either paid off the said notes of the said firm of A. M. Hatch and Company .to Daniels, or made some arrangement respecting the game, and respecting the said book account of Daniels, by which the same constitute no valid or legal claim in favor of the said Daniels against the complainant, or the said firm of A. M. Hatch and Company; and that the object is to recover the amount thereof from the complainant, in the name of the said Daniels, but for the use and benefit, wrongfully, of the said Fleming.”</p> <p>The bill prays a discovery, to enable the complainant to make defence in an action at law brought in the name of Daniels on the said notes and bodk account, “ and that the said Daniels may answer, what arrangement exists between him and Fleming (if any) respecting said notes and account; whether the same now belong to him, or did belong to him at the time of commencing said action and at this timeand whether he is not lending his name for the prosecution of the same for the benefit of Fleming; and that Daniels may be injoined from further prosecuting the said action at law, and that said notes may be given up to be cancelled, and the said account receipted and discharged, and for further relief.</p> <p>On this bill an injunction was granted to restrain the said suit at law, which was noticed for trial on the third Tuesday of October, eighteen hundred and forty-four.</p> <p>The answer positively denies the existence of the alleged facts of which a discovery is prayed, and on the supposed existence of which the injunction was granted..</p>

This was a bill for the foreclosure of a mortgage. The complainants had sold to J. W. Blydenburgh, a tract of land in this state, and taken his bond for a part of the consideration money, with seven per cent, interest, and his mortgage on the lands sold, to secure the payment of the bond. Both parties resided in New-York, and the papers were executed and acknowledged there, but were exchanged in this state, at the clerk’s office of the county in which the lands are situated.

<p>On bill for the specific performance of an alleged agreement for the sale of land to the complainant, an injunction was issued to restrain a subsequent purchaser from proceeding in an ejectment to recover possession from the complainant. The injunction may be dissolved, on the answer of the defendant who is alleged to have made the agreement to sell, denying the agreement, and the answer of the subsequent purchaser, denying any knowledge, information or belief of such alleged agreement.</p>

<p>If, on' examining- the complainant’s claim- of title to timber land, from which1 - the defendant has been restrained from cutting timber, the court is clearly satisfied that the complainant has no title ; the injunction will not be retained though an action of trespass- far cutting be pending at lawbut will be dissolved.</p>

<p>Courts of equity will not, in general,-decree performance-of contracts for the sale of personal property; but will Recree the execution of trusts oí personalty.</p> <p>Stock in a bank had been transferred to the defendant, to be by him transferred in different portions, one portion of which was to be transferred to the complainants. A transfer decreed.</p> <p>The statute of frauds, requiring declarations of trust to«be in writing, does not extend to trusts of personalty.</p>

<p>A. and B. held a mortgage given to them as trustees,, on the undivided half of a mill-seat. B., in his own right, held a subsequent mortgage on the same half. On proceedings for partition between the owners of the mill-seat, it was ordered to be sold at auction, and was so sold by the commission, ers. The order for sale and the conditions of sale were silent as to whether the property was to be sold subject to or free from incumbrance.</p> <p>Held, that parol proof was admissible to show that B. was present at the sale and agreed that the property should bo sold free from incumbrance, and received from the commissioners the mortgagor’s half of the proceeds of the sale, knowing that the purchaser paid the money understanding that the property was sold free from incumbrance, and that the mortgages were to be cancelled.</p> <p>B. applied a part of the money he received to the payment of his, the junior mortgage, in full, and the residue of it towards paying the mortgage to the trustees, thus leaving a balance due on that mortgage. The half of the proceeds of sale received by B. was sufficient to pay the mortgage to the trustees, and part of the mortgage hold by B. in his own right. Held, that the mortgage to the trustees was satisfied.</p>

<p>A mortgage is given by A., iiving in this state, to B., of Now- ’f ork, on lands in this state, to secure the payment of a bond. The mortgagor, after, wards, for purposes of liis own, executes, and causes to be recorded in the proper office of this state, a deed of the premises to the mortgagee. The mortgagee, without having assented to the deed, assigns the bond and mortgage, with all his other property, for the benefit of all his creditors. Afterwards, a creditor of the mortgagee attaches the land. The attach, ment will not hold the property against tho mortgage.</p>

In 1843, a commission in the nature of a writ de lunático ,inquirendo} was issued, directed to commissioners therein named, to inquire of the lunacy of David Rogers. The commission was executed in 1843, and an inquisition returned, finding that said Rogers was a lunatic.

<p>The case made by the bill is this. In March, 1840, Henry B. Stoll and Edward S. Bell entered into partnership as merchants, at Stanhope, under the name of Stoll and Bell, and bought a stock of goods from Andrew A. Smalley, of that place, and gave to Smalley their notes for the price; one of which he assigned to Coursen and Woodruff, of New-York. In March, 1841, the partnership of Stoll and Bell was dissolved, by mutual consent, by an agreement in writing, by which,, among other things, it Was agreed, that Stoll should take the stock of goods on hand and the accounts and the effects of the partnership, and pay the debts of the partnership and release Bell therefrom. In May, 1843, Coursen and Woodruff recovered judgment against Stoll and Bell, on the note of Stoll and Bell so assigned to them, and caused an execution to be issued thereon, returnable to the August term, 1843, of the Sussex circuit court. The execution was levied on the personal estate of Stoll, including his stock of goods and merchandise, and on his real estate; and was also levied on the personal and real estate of Bell- Stoll paid Coursen and Woodruff one hundred dollars on the execution. The judgment and execution were then assigned by C. and W. to the defendant John B. Hall. After this Stoll continued to sell from the stock of goods levied on, and Hall gave to the sheriff directions to stay proceedings on the execution. Bell then informed Hall of the agreement made between Stoll and him at the dissolution, that Stoll was to pay the debts of the firm. St'oll afterwards sold and delivered to Andrew A. Smalley the whole stock of goods; and Hall released to Smalley all claim thereon under the said judgment and execution. Smalley gave his notes to Stoll for the price of the goods, which notes were transferred by Stoll to Hall.</p> <p>Hall, in his answer, says, that at the time of the assignment of the judgment and execution to him, he had no knowledge or intimation of any agreement between Stoll and Bell that Stoll was to pay the debts of the firm ; 'that he had never seen any such agreement, and' had no knowledge of any, until some time after the-assignment of the judgment and execution and the stay of the execution given by him to the sheriff.</p> <p>A replication was filed, and depositions have been taken- on both sides.</p> <p>A motion is now made- for leave to amend the answer of Hall, by inserting an allegation that he had no knowledge of the agreement between Stoll and Bell, till after the release given by him to- Smalley was executed, or for leave to file a supplemental answer to make that allegation-</p>

In this case, the answer of the wife and her trustee, was at the last term, on motion of the complainant, ordered to be suppressed. On petition of the wife, a motion is now made that the wife have leave to answer separately from her husband. The bill is for the foreclosure of a mortgage, given by her and her trustee, to secure a bond given by the husband for money borrowed by him.

<p>On a bill filed May 29th, 1843, against The Trenton Delaware Falls Company, by Andrew Corrigan, a judgment creditor of the said company, for himself and all others the creditors and stockholders of the said company who should come in and seek relief by and contribute to the expense of the suit, stating the insolvency of the company, and the suspension of its ordinary business for want of funds to carry on the same, an injunction was granted, and receivers were appointed to take possession of the property of the company, under and by virtue of the provisions of the act, entitled, “An act to prevent frauds by incorporated companies,” passed February 16th, 1829,</p> <p>In the progress of the cause, and on the 20th of January, 1845, in pursuance of an order theretofore made in the cause directing the receivers to ascertain and report the amounts and order of priority of the mortgages and judgments, and the amount of other debts due from the company, the receivers made report accordingly. This report was brought before the chancellor on separate appeals of several judgment creditors and a mortgage creditor of the company. A number of exceptions were taken to the report. The exception which was argued prior to this term, was an exception to several of the mortgages reported as having been given by the company, on the ground alleged, that they were not executed under a lawful seal. The concluding clause of the mortgages, respective^, calls for the seal of the corporation, and the impression of a seal purporting to be the distinctive seal of the corporation, at the proper place for a seal, appeared on the papers on which the writings purporting to be mortgages, respectively, were writ-fen, without wax or seal or any other subsfance.</p>

The bill states the incorporation of the Somerville Manufacturing Company, in March, 1837 ; the capital stock not to exceed 250,000 dollars, in shares of 100 dollars each; five directors, being stockholders, to be elected when 500 shares should be subscribed for, to hold their offices for one year and until others should be elected ; the directorsto choose a president out of their own number when 40,000 dollars should be paid in.

John Butcher, late of the county of Burlington, die,d February 7th, 1818, leaving a will, by which he devised and bequeathed to Thomas Butcher, since deceased, and the defendant Benjamin Zilley, whom he also appointed executors of his will, all his estate, real and personal, in trust that they, or the survivor of them, should sell the same and put the proceeds at interest.

The bill in this case, filed April 19th, 1845, states, that about December 26th, 1843, the complainant Daniel Washer, being desirous to purchase a house and lot suitable for keeping a tavern, and the complainant George Washer, the father of said Daniel, being willing to assist the said Daniel therein, the complainants opened a negociation with James Brown, the defendant, for the purchase of a lot of land of about six acres, with a dwelling-house and other improvements…

John S. W ebster, late of tile county of Essex, died intestate in the year 1841. In September of that year, administration was granted to Eden S. Webster, who, with William Webster as his surety, gave bond to the ordinary, in the penal sum of 3500 dollars, with a condition in the form prescribed by the statute. The administrator shortly after filed an inventory of the goods and chattels of the intestate, amounting to 1699 dollars and cents.

<p>Michael Allen, late of the county of Gloucester, died intestate, in May, 1840, leaving six children living, and three grandchildren, the children of his son James, who died before him. Henry Allen, his eldest son, administered; and at the October-term, 1842, of the orphans’ court of Gloucester, made a final settlement, by which a surplus of 14,870 dollars and 73 eents was found in his hands for distribution. At the December term, 1842, application was made to that court-to decree and settle the distribution of the surplus. The three grandchildren claimed a full seventh, in right of their deceased father. This was resisted by the surviving children, on the ground that James, the deceased son, had, as they claimed, been advanced by the intestate in his life time. A judgment in favor of Michael Allen, against his son James, for 700 dollars debt and 5 dollars costs, was entered in the common pleas of .Gloucester, on a bond and warrant of attorney, on the 15th of June, 1835. Execution was issued on this judgment, and put into the hands of the sheriff of Gloucester, in the life .time ,of James. After .the death o.f James, Michael Allen signed a writing at the foot of the execution, in these words :—“ I hereby discharge J. W. Caldwell, sheriff, &c. from all liability whatever of the above stated exe.cution, the defendant being dead, and no further proceeding required on .the same.”</p> <p>Certain notes given by James to 'his father, .of dates prior t<j the bond and .warrant, .and against-which the statute of limitation 'had .run, were exhibited.'</p> <p>The orphans’ court, after hearing testimony, decreed tha,t distribution of the said surplus be made in equal seventh parts-; one seventh to each of the six surviving children, and the remaining seventh to be divided equally among the children of the deceased son James. Neither the amount of .the said judg.ment, nor of the said notes, was included in the said surplus.</p> <p>From this decree an appeal was taken ,by the surviving children to this court.</p> <p>The respondents, in their answer to the petition of appeal, say, first, that no appeal lies from the said decree to this court.; second, that the decree .is .right, and ought to be affirmed.</p> <p>The testimony on the part of the surviving children is as follows-:—</p> <p>Abigail Stout. She heard the intestate say he had advanced ■money for his son James. She does not know that she ever ;heard him say how much. Heard .hip? say he dj.d not desire ¿9 make a will. She kept house for him better than nine years. Slie heard him say, he had let James have money before she came to live with him. She knew James to get of his father, after she went to live with him, 110 dollars in pork and 40 dollars in cash. She recollects intestate’s telling her he ‘had advanced to James as much as he thought proper at that, time. He told her, one day, that the law made a will good enough for him.</p> <p>Being cross-examined, she said, James died about six years before the time of her examination as a witness. Michael Allen died in 1840. James was not present at any of the conversations she had with Michael. Michael charged the 110 dollars for the pork to James, in a hook or a note; she thinks a note. She is pretty certain he took a note. All she knows about James’s getting the pork, is what Michael told her. She never saw the note or book account. She heard Michael say, James got the 40 dollars. She did not see it, counted, but she was in the house.</p> <p>Mary Moore testified, that she heard Michael say, he had given James all ho e,xpected to give him ; that, he had set him up twice ; that he had not done as well as he could wish. On cross-examination, she said this conversation took place about eleven years before.</p> <p>Jesse C. Chew. Michael Allen has said to me, that lie had advanced liberally to James. Being cross-examined, he says, he thinks Michael told him he set out Henry Allen, another son, with some money and a horse, when he left his house. Enoch Allen, another son, was about thirty years old when lie died. He had been away from his father’s several years before he died; his mind was impaired, and his father boarded him out. Witness understood the old gentleman that he paid for the hoard of Enoch. Witness knew three of the daughters; they lived with their father several years after they were grown. Witness understood they received an outfit when they loft their father’s house, but does not know what it was.</p> <p>Louisa Batton. She lived in the house of Michael Allen about two years before he died. She heard Michael say he had let James have a good deal of money, and as much as he intended to let him have, till he saw whether there waá any more coming to him or not. He said he thought he had let him have as much as he would be able to let the other children have; as much as would be coming to the other children.</p> <p>Being cross-examined, she says she is 17 years of age. She is hired at Mr. Sberwin’s, who married one of the daughters of Michael Allen. The conversation took place at Michael Allen’s, about three-years ago-last summer. There-was-no person present. Sire was in the kitchen at the time. He has told me that, several times. She understood he was 80 or 81 j^ears old when he died. He spoke to her frequently about his other business. She was hired at Michael Allen’s.</p> <p>Bowman Sailer. Michael Allen stated to witness that his property at Barnesborough stood 'him in about 5000 dollars; that he'had advanced money to James, and had got no rent for the time James lived there. Henry wished his father, Michael, to take ■•the note which he, Henry, held against James, and keep it out of the share of his estate that would be coming to James after Michael’s decease. Michael held some writings against Henry, for about the same -amount that Henry held against James; and Michael said he went down to Salem and signed Henry’s writings away, and made him very angry •, and that he got a sharp letter from Henry about it.</p> <p>The testimony on the pait of the grandchildren is as follows :—</p> <p>Abigail Stout, the first witness called for the surviving children, being called on the part of the grandchildren, testified as follows. She remembers when James went to Natchez. When he left Barnesborough, she heard Michael say James had assigned him notes; but she cannot tell the amount. Michael appeared to be satisfied while James lived at Barnesborough. Michael said these notes were assigned to him by James to collect and pay him as far as they would go; he did not say all; he did not say they would pay all. He did not say whether he was satisfied or not; he did not express any dissatisfaction. This was, perhaps, three weeks before James left for Natchez. Michael and James were together several times shortly before James went to Natchez, about their business. Michael showed her some notes; he did not show her all. Michael told her, James had assigned him notes that would satisfy him for what he had let James have, in part; he did not say all. Cross-examined, she says, she never heard Michael say he had given James all he expected he would get; or that James would get no more unless the other heirs agreed to give him more. She has heard him say, he did not wish to give James any more, till he knew what was coming to him- of his share of his estate.</p> <p>Lydia Allen, sworn on the part of the grandchildren, says, she is the widow of James. Michael and James were frequently together before James went south, talking about their business. She heard Michael say, that James owed him money, and he wished him to pay it. She knows James assigned hit» notes, at different times-. These notes were assigned shortly before James went south. She saw Michael sign a paper ait Svvedesborough.</p>

<p>The testator gave to his wife the use and interest of all his personal estate during her widowhood; and also the use and possession of all his real estate during her widowhood, and as is in 7iis will after directed and limited, in lieu.-of dower; and directed that on the death or marriage of his widow before his youngest daughter attained the ago of eighteen years, the surviving executor should sell the personal property bequeathed to the widow, and place the proceeds at interest; and directed his Read farm to be sold when his youngest daughter attained the age of eighteen, or sooner if his executors, or the survivor of them, should think it most for the benefit of tlie estate; and that whenever the sale of the real and personal estate thus directed to be sold, should be made, the same should be placed at in* terest, and he equally divided.among his seven daughters, share and share alike, and paid to them when they should respectively attain the age of eighteen years ; and devised his homestead farm to his son when he should attain the age of twenty-one years; and directed, that in case his son should die without issue, before ho attained the ago of twenty-one, the said homestead should be sold, at the discretion of his executors, or the survivor of them, and the proceeds thereof be placed at interest, and divided among his surviving children, share and share alike, and paid in the manner before directed and appointed the widow and another executors. Held, that on a sale of the Read farm by the widow, as surviving executor, before the youngest daughter attained the age of eighteen, each daughter then under eighteen was entitled, on attaining that age, to her share of the proceeds of the sale, without interest; and that the daughters who had then attainod eighteen were entitled to their respective shares of the proceeds immediately*</p>

<p>This is a foreclosure bill. It states, that on the 24th oí May, 1836, one John De Groot sold and conveyed to the defendant David D. Demarest, the premises described in the bill, and that Demarest gave to De Groot his bond of that: date, for $5000, part of the purchase money; and also with his wife, gave to De Groot the mortgage set forth in the bill, on the premises so sold and conveyed, to secure the payment of the bond. That the mortgage was recorded in the clerk’s office of Bergers county on the 28th of May, 1836. That on the 3d of November, 1838, De Groot applied to the complainant to buy the bond and mortgage, representing it to be a purchase-money mortgage, and a first lien of record on the premises, and ample security for the money mentioned therein.- That the complainant, confiding in these representations, and being willing to purchase the bond and mortgage, De Groot thereupon, by assignment of that date, in consideration of $5000, to him paid by the complainant, assigned the same to the complainant. That on searching the records, preparatory to filing the bill, the complainant first learned that-' there was on record a mortgage of the same premises, given by Demarest and his wife to the defendant Elizabeth Boyd, for $2000, purporting to bear date the same 24th of May, 1836, and to have been registered the 26th of that month. The bill claims, that the last mentioned mortgage is subsequent to the complainant’s in fact and in law; and charges that Elizabeth Boyd took her mortgage with full notice of the mortgage of De Groot.</p> <p>The answer of Elizabeth Boyd states, that before the day of the date of the mortgage to De Groot, Demarest applied to her to lend him $2000, stating that he was about to buy the premises from De Groot for $9000; that he was to pay $4000 of the purchase money- down; that he had but $2000 in cash, and that if she would lend him- $2000, De Groot would agree that she should be secured by the first mortgage on the premises, and that De Groot would take a mortgage subsequent to hers for the remaining 5000 dollars of the purchase money. That on these conditions she agreed to loan Demarest the 2000 dollars, to be secured by the first mortgage on the-premises. That De Groot agreed with her agent, appointed by her to conclude the loan and take the security, that if she would loan the 2000 dollars, he would; on receiving 4000 dollars of the purchase money, accept for the residue of the purchase money a mortgage subsequent to the mortgage to be given to her at the same time; stating, that unless he could get 4000 dollars of the purchase money in cash, he could not procure a release of the elairn of the Receivers of the Washington Bank on the premises-.. That thereupon, it was agreed by De Groot, Demarest and her, that she should loan the 2000 dollars to Demarest; that this sum, with 2000 dollars more to he paid by Demarest, should be paid to said Receivers to procure a release from them to De Groot, and that on the delivery of the release, De Groot was to convey the premises to Demarest, and that thereupon Demarest and his wife should secure this defendant by the first mortgage on the premises, and after that should give De Groot a mortgage on the premises for 5000 dollars, the residue of the purchase money. That in pursuance of said agreement, she, on or about the 24th of May, 1836, lent and advanced to Demarest the 2000 dollars: which with 2000 dollars more advanced by Demarest, was paid to the said Receivers; whereupon they delivered their said release to De Groot, who thereupon executed and delivered to Demarest a deed for the premises; and thereupon Demarest gave his bond to this defendant, dated the said 24th of May, 1836, conditioned for the payment of 2000 dollars, with interest, on or before the 1st of May, then next, and a mortgage of the premises of tire samo date, executed by him and his wife, to secure the same. That said bond and mortgage were delivered to her, in the presence of De Groot, before the bond and mortgage set forth in the complainant’s bill were executed or delivered to De Groot; and that De Groot, after the mortgage to him was executed and delivered, signed a writing indorsed on this defendant’s mortgage, by which he acknowledged that the mortgage of this defendant was prior in point of date and lien to the mortgage to him, and was to be first paid ; and that for greater certainty, and that the priority of this defendant’s mortgage might be manifest to all, the said De Groot agreed not to deposit his mortgage in the clerk’s office for registry until some day after -this defendant’s mortgage should be so deposited. That the -execution of her mortgage was duly acknowledged on the day of the date thereof, and was received in the clerk’s office on the 25th of that month, and was duly registered by the clerk. That she has no knowledge of the assignment to the complainant, of the said mortgage to De Groot, nor of the representation made at the time thereof, by De Groot to complainant, except by-the complainant’s bill.</p> <p>The defendant Demarest, in his answer, states, that the mortgage to Elizabeth Boyd was given to secure 2000 dollars loaned by her to him, to pay De Groot on the purchase of said premises; and that he and his wife, by an arrangement and the express consent of De Groot, and in his presence, executed and delivered to Elizabeth Boyd the said mortgage to her, before the execution and delivery of the mortgage to De Groot; and that this 2000 dollars was paid by him to De Groot, as part of the purchase money for the premises.</p> <p>And this defendant, by way of defence against the mortgage to De Groot, in the hands of the complainant, denies that the assignment thereof to the complainant was in consideration of 6000 dollars paid by complainant to De Groot; but says, the said assignment was made in pursuance of a usurious contract between De Groot and the complainant, by virtue of which the complainant loaned and advanced to De Groot, partly in money and partly in securities for money a large part of which proved worthless, 4500 dollars; for which De Groot assigned to the complainant the said bond and mortgage, and also guaranteed and became personally responsible, by writing under his hand, to the complainant, that the complainant should recover and receive from said bond and mortgage the principal sum of 5000 dollars, with interest at six per cent.; and that said 4500 dollars wras advanced to De Groot by the complainant, in money and securities as aforesaid, upon the said contract and agreement that De Groot should assign the said bond and mortgage and guarantee the same as aforesaid; and claims, that thereby the said contract and assignment were rendered usurious and void; and says that De Groot has notified him of the circumstances under which said assignment was made, insists that said assignment is usurious and void, and claims said bond and mortgage as his own property, as if no assignment thereof had ever been made.</p> <p>Both mortgages were acknowledged on the day of their date, before A. O. Zabriskie, master in chancery.</p> <p>Evidence was taken; and a writing .indorsed on the mortgage to Elizabeth Boyd, and signed by De Groot, dated May 24th, 1836, acknowledging that .her mortgage was the first lien on the premises, and was to be paid before the mortgage given to him on the same premises, was exhibited.</p>

Jonathan H. Williams, the complainant, and Nathaniel Stevens, since deceased, its-May, 1835, entered into partnership in the hatting business; the business to be carried on in the name of the complainant. On the 1st of January, 1839, the complainant and Stevens came to a settlement of the partnership-business up to that time, on which settlement Stevens was found to be indebted to the partnership in 1541'dollars/ and the complainant to be indebted in 213 dollars.

The bill states, that the Society for establishing Useful Manufactures, the complainants, on the 20th of January, 1813, sold and conveyed by deed to Reswell L. Colt, a mill lot on Boudinot street, Paterson, (describing it,) “together with the right of taking from their canal in Boudinot street, aforesaid, .twelve inches square of water, say 144 square inches,” for the consideration of 2500 dollars.

On the- 1'Ofch of January, 1842, a bond for $9600, and a mortgage on- the real estate of the Somerville Manufacturing Company to secure the payment thereof on or before January 5th, 1845, were, or purported to have been executed by the said company to Jared N. Stebbins, a director of the company. They are signed “ John I. Gaston, president of the Somerville Manufacturing Company,” with an- ordinary seal annexed.

On the' 25th of ‘March,--■ 1821, Abraham Haines gave his bond of that date to Stacy Haines, conditioned for the payment of $2000,, with interest, in three years; and on the same day, with Agnes-his wife,’ executed to Stacy Haines a mortgage of the premises described in the bill, to secure the payment of the bond.

<p>The bill states, that on or about March 22d, 1839, Mary Cook, since deceased, made her will, by which she directed, among other tliings¡ as follows:—“ 10th. I order the sum of $1500 to be put at interest by my executors, and the interest added to the principal from time to time, or the interest put at interest; and the one half of said sum, with one half of the interest which may have accrued when my granddaughter Mary Louisa Cook arrives at the age of twenty-one years, I order to-be paid to her; or if she dies before that time leaving issue her surviving, I order her said share to be paid to her child or children; and the remaining half of the said money, with the remainder of the interest,- I order to be paid to my grandson Joseph Cook; when he arrives at the age of twenty-one years; but if he dies before he arrives at the age aforesaid, leaving issue, I order his said share to be paid to his child or children; and if either the said Mary Louisa or the said Joseph die before arriving at the age aforesaid and without leaving issue, then I give the whole of the said sum and interest to the survivor of them; or if one of them die before arriving of age and leave issue, and the other die before arriving of age and without issue him or her surviving, then I give the whole of said moneys to the child or children of the one so dying and leaving issue.” X"</p> <p>“ 12th; All the residue of my estate, after the payment of ihy debts and expenses, and the legacies herein before devised, I give to my grandchildren Sarah Richman, Mary Louisa Cook, Joseph Cook and Mary Cook, to be equally divided between them, each one to receive his or her share thereof as him or her attains the age of twenty-one years; and if any one of them dies before Kim or her attains the age of twenty-one years, leaving issue him or her surviving, - then,1 to the issue of him or her so dying I give the share which the parent-or parents of such issue would have been entitled to under this devise ; but if any one or more of my said grandchildren die before attaining the age of twenty-one years, and without' issue surviving him or her, then I' give his-or her share of this deviáe' to the survivors and to the issue of him-or her dying leaving issue, the issue of any one to have the same the parent of such child would have been entitled to under the devise.”</p> <p>That on or about' the 7th of January,-1841, the executors proved the will, and by virtue thereof possessed themselves of all the estate that was of the -testatrix, amounting to $10,000 and upwards. That..on or about June 9th, 1842, the said Mary Louisa Cook was.married to Richard M. Ware; that the said Mary Louisa-afterwards, on•'or-about'March 4th, 1844, died, not having yet attained the'age of twenty-one years, leaving the complainant her son- and only- child her surviving, who is an infant of about ten- months old; TMe bill is filed by the infant, by his guardian Richard M. Ware, his father, and prays that the executors may pay the one half of the said $1500, and of the interest that has accrued thereon, aud also the one fourth part of the residue of the estate, together with the interest that has accrued thereon.</p> <p>To this bill a general demurrer was filed July 10th, 1844.</p>

The bill states, that ou the ,28th of May,-1828, Richeson ■Buckbee mortgaged to Aaron Peck the tract of land first described in the bill, to secure $l)T0d. That on the 28th of April, 1829, Buckbee, with his wife, conveyed a part of the said tract (describing the part) to the complainant Pierson. That on the same day Peck, with the knowledge and consent of Buckbee, released from the lien of the mortgage the part so conveyed by Buckbee and wife to Pierson.

The Morris Canal and Banking Company, on the 3d of October, 1845, exhibited their bill against the Society for establishing Useful Manufactures, stating, that since April 1st, 1845, the said Company have been engaged in widening and repairing their canal, and having completed the work, proceeded, early in July, to fill the canal with water; and that thereupon, lies well L. Colt, governor of-the Society for establishing Useful Manufactures, under pretence that the Company…

On the' 2d of October, 1837, Daniel Stires, being seized of a farm on which he-lived, and of no other real-estate, made his will, by which he directed the executor thereof to pay all lawful claims against his estate out of his personal effects; and in defect thereof, to sell so much of the real estate as to fully pay and satisfy all just claims and demands; and from and after the payment thereof, and subject thereto, then that all the rest and residue of the personal estate…

In May, 1843, an injunction was granted, and receivers appointed to take possession of the property of “ The Trenton Delaware Falls Company,” under the act “ to prevent frauds by incorporated companies,” passed February 16th, 1829.

On the 20th of March. 1830, Jonathan Campfield, since deceased, executed to Calvin Campfield a mortgage on three tracts of land in Morris county, to secure a bond of the same date, given by the said Jonathan to the said Calvin, conditioned for the payment of §2000.

Prior to December 7th, 1838, the sheriff of Sussex county had in his hands several executions, issued on judgments at law, against “The Hamburgh Manufacturing Company,” a company incorporated by the legislature of this state, on the 10th of March, 1836; by virtue of which he had levied on all the real estate of the said Company, and advertised the same for sale. Of these executions, the first in priority was in favor of Joseph E. Edsall.

The bill states, that on the 18th of May, 1843, Daniel Ge-roe died, leaving a large personal and considerable real estate, and leaving a will dated December 15th, 1836, by which, after bequeathing his personal estate, lie gave to his wife the house and lots where he then lived, as long as she should remain his widow, aud to his son, Benjamin Geroe, the mountain lot in fee : and the remainder of his real estate to his three children, Peggy, wife of Cornelius Winter, Caty,…

<p>On the 18th of March, 1842, James J. M’Doimeil conveyed to William Blair two lots in Harsimus, by the following description : “ All those two lots of land in Harsimus, in the county of Hudson, being part of block No. 150, on a certain map or chart of Harsimus made by J. A. Mangin, and recorded in the office of the clerk of Bergen ; on which block the said two lots may he known as lots numbers 19 and 20, each lot being 25 feet wide in front and rear, and 100 feet deep,” for the consideration of $1000, with covenants- oí' seizin and warranty. Blair, on the same day, gave his bond to M’Donnell for the $1000, payable in two years, with interest; and with his wife executed to M’Donnell a mortgage on the lots described in the deed, to secure the bond. On the same day, Blair paid M’Donnell $200-of the money, and it was indorsed on the bond.</p> <p>Tírese two lots, described in the deed and mortgage, fronted on Erie street, extending from front to rear in a line parallel' with South Seventh- street, and fifty feet distant from that street. The block No. 150, is 400 feet long, between Erie and Grove streets, and 200 feet wide, between South Sixth and South Seventh streets; and on the map referred to there are laicj out eight lots of 25 feet wide and 100 feet deep, fronting- on Grove-street, occupying the whole front of the block on that street; and eight lots of the same width and depth fronting on Eric street, occupying the whole front' of the block on that street leaving two tiers of lots, of eight lots in each tier, of the same front and depth, one tier fronting on South Sixth and the other on South Seventh street. Lots 17 and 18 on the map lay between the lots described in the deed and South Seventh street, and fronted on Erie and South Seventh street, and extending in-depth, along South Seventh street, 100 feet.</p> <p>During the negotiation between M’Donnell and Blair, M’Donnell took Blair to the corner of Erie and South Seventh streets, and showed him the ground he proposed to sell to him; and represented it as comprising two lots adjoining each other, in all 50 feet front and rear and 100 feet deep, fronting on South Seventh street, and bounded by the easterly line or side of Erie street; and that the said lots formed the southwest corner of block No. 150, on the said map made by Mangin. M’Donnell told the complainant there was no necessity for his being at any trouble or expense in making searches for the title of the said premises, or for any incumbrances thereon, and referred him to Mr. Cassedy for information in reference thereto. Blair accordingly applied to Mr. Cassedy, and was told by him that the title was good ; and Blair, being satisfied with these representations, took the deed, and gave the bond and mortgage.</p> <p>. After receiving his deed, Blair made preparation to build a house on the premises, and caused a quantity of building materials to be conveyed to what M’Bonnell had represented to be the front of the lots he bought; when he was told that the lots 19 and 20, described in his deed, did not front on South Seventh street, nor form the southwest corner of Erie and South Seventh streets; but that they front on Erie street, and are 50 feet distant from South Seventh stréet.</p> <p>Blair filed bis bill, stating the foregoing facts,-and praying that M’Bonnell may be decreed to repay the $200, with interest thereon, and to give up the bond and mortgage to be cancelled, on the complainant’s releasing to him all his interest, &c.</p> <p>M’Bonnell put in his answer, stating, that on the 1st April, 1835, one Hutton bought from the Messrs. Coles, the four lots, 17, f8, 19, 20, as laid out on said Mangin’s map. That on the 18th August, 1836, Hutton conveyed to one Israel Champion the two of the said lots- which are marked 17 and 18. That Champion built and enclosed, fronting on South Seventh street. That on the 15th October, 1839, J. C. Terhune, sheriff, on an execution against Hutton, sold the other two of the four lots, viz. 19 and 20, to the defendant, for $1500. That the deed from the sheriff, to him describes as thereby conveyed, two lots bought by Hutton of the estate of Coles, numbered 19 and 20, southwest corner of block No. 150, on the said Mangin’s map. The defendant admits that he represented and pointed out to the ajmplainaut, at? stated m the, bilí, that the Sote frotiíed 50 feet on South Seventh street, and extended along the easterly side of Erie street 100 feet, and formed the southwmf, comer of block ISO. He saye that at the time of the said sale and conveyance by him to the complainant, the space of 50 feet front by 100 feet deep, fronting on South Seventh street, was enclosed by a fence, and had been previously cultivated by Hutton. That the four lota bought, by Hutton from the estate of Coles formed one parcel of 100 feet square, being the south’ east corner of block No. 150; that they are known as lots 17, 18, 19 and 20, on said Man gin’s map; and that it, was snjv posed and understood by Hatton, when he bought them, as the defendant has bees informed and believes, that they were nute" bered on Sooth Seventh street, instead of on Eric street, as laid down on said map; and that in pursuance of that belief on the part of Hatton, Hutton sold and conveyed to Champion mmshers 17 and 18, which both Hutton and Champion understood and believed fronted, and were numbered, oo South Seventh street; and that in accordance with that understanding and Iav lief, Champion built a house and stable and other necessary building's upon, and enclosed a apace os'’ 50 feet by 100 feet, embracing the rear half of said four lots, as they are laid dow,« and numbered on the said map, the house and atablo fronting1 on South Seventh street; and that Champion has occupied the said space for mere than nine years; and that Hatton, after his conveyance to Champion, retained possession of the other half of said space, considering it as lots 19 uud 20, numbered on Sooth Seventh street, up to the time of the sale by the sheriff a a aforesaid, when the defendant bought under the full belief that lot© 19 and 20 fronted on South Seventh street, and included the corner of said block, and extended 100 Feet on Erie street; and that he sold and conveyed to tbs complainant under the same belief. That at the time Champion applied to Hatton for the purchase of two lots on seM block 150, he was desirous-of buying the two lots which (considering the four as; numbered on South Seventh street) formed the southwest comer of the' block; bat Hutton refused to sell them, though Champion offer ®d him 0200 more for them than he paid Hatton for the Iota ho bought; and that the defendant was present at the «oaversaíw®The defendant submits to the court, whether the deed from him to the complainant is not a good and valid deed, to pass the title of the part intended to be conveyed and bought, inasmuch as the different grantees bought believing the lots to be numbered on South Seventh street; especially as' there was no fraud in the matter, but merely a mistake as to the numbering of the lots.</p> <p>The proofs taken show the-facts to be as they may be sufficiently gathered from the bill and answer.</p>

The bill is for the foreclosure of a mortgage, dated February 25th, 1839, given by George C. Thomas and Anna his wife to Griffin Taylor, recorded February 27th, 1839. The mortgage covers two distinct lots.

<p>In 1832, G. and B., partners, leased a building and water power, and put machinery into the building, for the purpose of carrying on their partner, ship business. In 1834, G. gave a mortgage on his interest in the mill and machinery, as security for his individual debt. A bill was filed in July, 1840, for the foreclosure of the mortgage and the sale of G.’s interest. The lessor was made a defendant. The parties continued in the possession and use of the mill.and machinery. At the time of the filing of the bill, and at the hearing of the cause, there was rent due from-the partnership to the lessor. Held, that the mortgagee was not entitled to G.’s interest in the machinery free from the rent; but that the interest which the complainants were entitled to and which could be decreed to be sold under their mortgage, was only what G. would be entitled to after paying the debts of the partnership, including the rent.</p> <p>The material facts of the .case sufficiently appear in the opinion delivered.</p>

Solomon Russ, of Conklin, New-'York, and George F. Red-field, of Perth Amboy, Mew-Jersey, were, it is alleged, partners in trade, in the oyster business. They owned, as tenants in common, a tract of land in Middlesex county, New-Jersey, of twenty acres, unconnected with the partnership business, and Redfield owned a lot in Perth Amboy.

<p>It. and B. were partners in two establishments, one for the tailoring business and the other for merchandizing. They dissolved, and submitted the mat. •iers in difference between them to arbitration, and entered into mutual submission bonds, with sureties. The arbitrators awarded, that R. should pay the debts of the tailoring business and pay B. $468 10; and that B. should pay the debts of the merchandizing business; in full of all demands by either against the other. After the award, two executions on judgments re-> covered against R. and .B., for debts growing out of the merchandizing business, were levied on the goods and lands of R. and B. respectively. R. obtained an injunction against selling his lands before the lands of B. It appeared by the answer, that R. had not paid to B. the $468 10. On motion to dissolve the injunction, an order was made that R. pay the $468 10 on the executions, within thirty days, or that the injunction he dissolved.</p>

Oh the 5th of July, 1841, Richard I). Sisco became bound to Andrew P. Hopper in a bond conditioned for the payment of $1200,- in- one year, with interest; and on the same day, with his wife, executed and delivered to the said Hopper a mortgage on a tract of land, to secure the payment of the bond. ‘ On the 5th of October,-1842, Sisco made his will, by which he devised the said land to his three sons, to be equally divided among them; and on the 5th of November, 1842, Sisco…

John Degraw liad given to - Degraw three mortgages on a house’and lot,' and to'---Yannuis a fourth and subsequent mortgage thereon. After the giving of all the mortgages, and on the 1st of May, 1843, James Moore rented the premises from the mortgagor, and occupied them for the year, and’ paid the year’s rent, and continued to occupy them, as the tenant of the mortgagor, on an actual or implied letting for another year.

The bill states, that Samuel Adamson died in June, 1840, .seized of .real estate of the value of $2000, and possessed of personal property of the value of $7000; having first made and published his last will and testament, dated March 5th, 1840, as follows:—“1st. It is my will that my beloved wife, Susan, have her lawful right of dower out of my estate. 2d. That my executor shall, as soon as &c., sell and dispose of all my estate, both real and personal, and the proceeds…

. Bill for the foreclosure of a mortgage, dated March 16,1819, given by John Huffman, since deceased,,to David Cavalier, since deceased, to secure the payment of a bond of the same date, • conditioned for the payment of $200,- in one year from the date thereof, with interest, given by- the said John Huffman to the said David'Cavalien The mortgage was acknowledged March 17th, 1819, and recorded the 27th of the same month. The hill was filed October 1st, 1841.

In January. 1839, the administrators of the personal estate of Aaron Hazen, deceased, on a bill theretofore filed by them against the executors of the will of John Tillman, deceased, obtained a decree against the said executors-, for the payment by them, out of assets quando acciderint, erf $469 78. .

<p>On motion on bill and notice for an injunction and the appointment of a receiver, the affidavit of the defendant may bo read in opposition.</p> <p>To authorize an injunction and tho appointment of a receiver, there must be a well grounded apprehension of injury about to be done.</p> <p>Where the misconduct alleged in the bill occurred, if at all, several years before, and no act is threatened, or mischief impending, an injunction and receiver will not be ordered.</p>

<p>In March, 1827, Enoch Green died, leaving a will, by which, after directing his just debts and funeral expenses to be paid, he gave to his daughter Maria Tucker, wife of Samuel Tucker, $500, for her sole use, to be paid in'three months after his decease ; and to his daughter Susan Carman, wife of Caleb Car-man, $500, for her sole use, to be paid as soon as conveniently might be after his decease; and to his daughter Sarah Hamilton, wife of Thomas Hamilton, $ 1000, for her sole and separate use, to be paid as soon as conveniently might be after his decease; and to his grandson Enoch G. Tucker $500, to be put and kept at interest by his executors, and the survivor of them, on good real security, till his said grandson should attain the age of twenty-one, and then to be paid to him, with the interest which should have accrued thereon; and to his granddaughter Frances Carman $500, to be paid to her when she should attain the age of eighteen years; directing his executors in the mean time to place and keep the same at interest on good real security, till she should attain that ago, and to pay the interest thereof, yearly, to the mother o? the said Frances. And for the purpose of carrying his will into effect, by paying the debts and legacies therein mentioned, and for whatsoever ends and purposes might be requisite thereto, he authorized and empowered his executors therein mentioned, and the survivor of them, to sell and dispose of all and singular his real estate, or so much thereof as might he necessary for the purposes aforesaid. And all the rest, residue and remainder of his estate, real and personal, whatsoever and wheresoever, he gave, devised and bequeathed to his son John D. Green, his heirs and assigns for ever. And he appointed liis said son John D. Creen and his nephew Armitage Green executors of his said will.</p> <p>John D. Green proved the will, and acted as executor; and, as executor and residuary legatee and devisee, took possession of all the estate, real and personal. Armitage Green did not prove the will or act as executor. The will was proved on the 3d of May, 1827. Oh the same day an inventory of the personal estate of the testator was filed in the office of the surrogate ,of Hunterdon, amounting to $3071 23$; consisting of</p> <p>A bond of $1000 00</p> <p>36 shares Trenton bank stock, appraised at 1260 00</p> <p>Cash in bank, - 245 86</p> <p>Notes, dnebills, and book accounts, - 180 37$</p> <p>And furniture, &c. - _385 00</p> <p>$307T23-$</p> <p>On the 19th of January, 1829, J. D. Green, as executor of .the will of Enoch Green, transferred to himself in his own name the thirty-six shares of stock in the Trenton bank; and they stood in his name at his death. In 1830, John D. Green died, intestate, and administration of his personal estate was committed to his widow, Frances Green, the defendant in this cause. No administration do bonis non, with the will of Enoch Green annexed, -was ever granted.</p> <p>In January, 1831, Frances Green, as administratrix &c. of John Dj Green, filed an inventory and appraisement of his personal estate in the office of the surrogate of Hunterdon, amounting to $7341 91, including the said thirty-six shares of bank stock, appraised at $38 a share, $1368. In January, 1835, Frances Green, as administratrix-&c. of John D. Green, sold the said bank stock for $1360 80, and transferred it to the purchaser.</p> <p>Enoch G. Tucker attained the age of twenty-one on the 7th July, 1838, and in 1841 exhibited his bill against Frances Green, administratrix &c. of John D. Green, deceased, who was executor of the will of Enoch Green, deceased, for the recovery of the said legacy bequeathed to him by the will of Enoch Green, deceased. An answer was put in by the defendant, and the cause was heard on the pleadings and proofs.</p>

Peter A. Kipp died, intestate, leaving a widow, Mary Kipp, and five children, viz. Abraham Kipp, John Kipp, Henry Kipp, Peter Kipp and Mary Kipp, and leaving real estate which descended to his said children. John Kipp sold his undivided interest in the real estate to his brother Abraham.

Bill by the wife against the husband, for support and maintenance, on the ground that the husband had abandoned her and refused to maintain and provide for her. The bill stated the pecuniary circumstances of the husband, and the amount of his daily earnings; and prayed also for alimony pending the suit, and money to carry on the suit.

On the 16th of August, 1815, John Getsinger and Joseph Getsinger gave to the complainants their bond, conditioned for the payment of $11,755 23, in two equal payments, at six and twelve months, with interest; and to secure the payment of the bond, gave to the complainants a mortgage of the same-date, on the Glass Factory buildings and lots in Port Elizabeth, Cumberland county, (describing them,) containing ten acres; a lot of 39 acres -, a lot of 315 acresa lot of 45 acres ;…

<p>On bill for partition, injunction granted, restraining tho party in possession from committing waste by cutting timber.</p> <p>Tf the title.of the complainant in a bill for partition is denied, the court may retain the bill to give him an opportunity to try his title at law.</p> <p>An equitable partition may be made so as to assign a portion of the land on which improvements have been made to him who mp.de them; and if he has cut off the timber-from a part of tlie land adjoining the part improved, the court may direct that the land from which the timber has been cut be valued as it was with the timber on it and included in tho assignment to him.</p> <p>In special cases, one tenant in common may, on Iho application of the other, be injoined from committing waste; but the jurisdiction is sparingly exercised.</p> <p>On bill for partition, by a tenant in common owning a twentieth pari, an injunction was granted against the tenant in common in possession, restraining him from cutting timber. His answer showed that he was owner of eight twentieths ; that he had made improvements to the amount of $2000; and that he only intended to cut the wood and timber from two acres near the barn, which he had commenced doing when the injunction was served ; and he denied all intention to commit waste. The injunction was dissolved-</p>

<p>la 1839,-the owner of a mill seat leased to a canal company, for three years, at an annual rent, the privilege of diverting water from tho stream, at a point'abova and boyond his land, into the canal. He then sold his mill seat to a third person, reserving by the deed all right, interest and demand against the company for the use of the water, which he tiren had, or which either of the parties to the deed might thereafter have, as freely as if ho had not conveyed the- mill seat. The company paid tho grantor of the mill seat the rent for the three years. After the expiration of tho lease, the company continued to use water diverted from the stream without paying for it. In 1845 the grantor fiiod a bill praying an account and payment of the rents, and an injunction restraining the company from, divert, ing the water. The injunction was denied.</p> <p>'flfhere there is a remedy at law, and nothing-to show that the damages which mrght'be awarded at law could not be realized, and nothing of tho character of irreparable damages, an injunction will not he granted.</p>

<p>Bill for the foreclosure of a mortgage given by John Bruce and Charles Bruce to James Ballagh. The mortgage was assigned by tiie executors of Ballagh’s will to George I). Strong; and by Strong-to Joseph D. Beers, President of the North American Trust and Banking Company, his successors and assigns ; and by the said Beers to Thomas G. Taimage, President of the said Company, bis successors and assigns; - and by the said Taimage to Henry Yates, Thomas G. 'Taimage and William C. Noyes, trustees, to have and to hold to them, their executors, administrators and assigns; and by the said Yates, Taimage and Noyes to Abijah 'Mann, jun., the complainant,, to have and to hold to him, his heirs and assigns.</p> <p>John Bruce put in an answer, admitting the facts stated in the bill, except as to the assignments; and as to them he says, -it may be.true that the assignments were made as slated in the bill, but that lie is a stranger thereto, and cannot form any belief concerning the same, and therefore leaves the complainant to his propfs.</p> <p>The assignments were proved.</p> <p>The defendants put in proof that Abijah ‘Mann, jun., the ■ complainant, was receiver for the creditors and stockholders of the North American Trust, and Banking Company; and that ■ this mortgage came to his hands in that character.</p>

<p>Bill for specific performance, filed August 7th, 1843, By articles of agreement dated March 19th, 1840, Moses Thorpe agreed to sell, and Hiram Hulmes to buy, a lot of laud described in. the agreement, supposed to contain fort]r-one and a half acres; and if it should not hold out, the quantity was to be taken from another lot of Thorpe’s described in the agreement, in a specified shape and position; Thorpe reserving the sawmill on the premises to be used for fifteen months from the date of the agreement; provided, that on whatever money, property, making of coal and labor that should be paid and performed by Hulmes on or before November 1st, 1840, no interest should bo demanded; at which time the parties were to settle, and Thorpe was to deliver a good and sufficient deed, clear of ali incumbrances, or as soon as half the purchase mqney was paid, when Hulmes was to give his bond and mortgage cn the property for the balance, with interest, in two equal annual installments ; Hulmes to be permitted to pay by cutting timber sufficient to make one hundred turns of coal of one hundred bushels each, on the north-east end of a lot of fifty acres of Thorpe’s, called the Home 1-ot, catting the stumps low, and making the timber into as good coal as the timber and season would permit, and delivering the coal at the Russia forge and coal house, and-stocking all that was not worked off the bank in the.forge; for which Thorpe was to allow §3 75 for each hundred bushel's, as payment on and for the land ; and Hulmes agreed to make and deliver "from sixty to' one hundred loads of said coal by Novémber 1st, 1840:'; the two last payments to be made in the •same way; by Thorpe’s- finding timber not a greater distance from the forge than the land he bought of Ryerson and' Sharpe. And Hulmes was to cut, draw, arid saw, at the mill, such stuff as-Thorpe might direct, and deliver at the mill to Thorpe, properly stuck, half the boards, plank and scantling of all the logs, on whatsoever land he should cut off, for the said- coal wood.</p> <p>By a supplement to the agreement, and as'an explanation of the understanding of the parties, it was provided, that Hulmes Was té cómmencé delivering coal' on or before September 1st, 1840, and to continue to 'deliver coal sufficient to keep one fire at the forge in operation.</p> <p>On-the execution of the- agreement, Thorpe delivered possession to Hulmes.- Hulmes began to deliver coal September 1st, 1840, and continued to deliver coal, a.nd before November 1st, 1840, delivered (as the bill states) sixty turns, equal to six! thousand bushels, amounting, at the stipulated price, to §225. And the bill states, that on the said 1st of November, 1840, Thorpe, the defendant, was indebted to Hulmes, the complainant, for- work and labor, oats; and the use of the barn; and that on that day, he, the complainant, went to Thorpe’s house for the purpose of having a settlement, but that Thorpe had gone to Illinois.</p> <p>In the following season, Hulmes continued-to make and deliver coal at thp forge; and on or before November 1st, 1841, had delivered, (the bill states,) including that delivered the preceding year, 9150 bushels, amounting to §343 12-|-. And the bill states that the complainant had a further account against the defendant, which,-with the account before mentioned and the coal delivered, amounted to §350, the first payment, and the interest on so much- thereof as remained unpaid on the 1st of November, 1840.</p> <p>The bill states the performance, on complainant’s part, of the other terms or-items of the agreement, stating, as to the sawing of the logs, that' Thorpe neglected to give him directions as to how they should be sawed till June, 1843, when the water had become too low to saw; and that it remained too low till the filing of the bill. And the bill states that Hulmes has several times called on Thorpe to furnish the timber from which to make the coal for the residue of the purchase money, and that Thorpe has neglected to do so.</p> <p>On the 4th of October, 1841, the parties made another agreement, for the sale by Thorpe and the purchase by Hulmes of another lot of J 00 acres, called the Allen lot, and also the remaining part of the house lot, containing 7acres, called the Rorick survey, except the part thereof before sold by Thorpe to Hulmes; the consideration for the last sale being $1200; $100 of which Thorpe acknowledges to have then received :¡ the'balance, $1100, to be paid as follows: $100 on the 1st of November, 1841, when Thorpe was to make a good and sufficient warrantee deed, clear of all incumbrances, and Hulmes was to give his five bonds of $200 each, payable on the 1st of November, 1842,1843, 1844, 1845 and 1846, with interest, and a mortgage on the premises, executed by him and his wife, to secure the same; and this agreement contained a provision, that if any claim should arise, or any prosecution be commenced on any claim that then existed against the lands, whereby Hulmes should be put to any damage, Thorpe would pay the same; and that if judgment should be obtained against the land by reason of any claim then existing, whatever Hulmes should pay, not exceeding the yearly payments, Thorpe should allow as so much paid on this agreement. That on the execution of this agreement, Thorpe delivered to Hulmes the possession of the premises, Hulmes then paying him $100. On the 23d of November, 1841, Hulmes paid to Thorpe the second $100, which Thorpe received as of the 1st of November, 1841, (the bill stating that Hulmes made inquiry for Thorpe on the 1st of November, 1841, and could not find him, he having gone to Illinois.) The bill states, that on paying the second $100, Hulmes offered to give tire bonds and mortgage on Thorpe’s giving the deed ; and that Thorpe refused so to do, but offered a deed executed by him alone, and not by his wife, and which was also defective in the description of one of the lots: and that Hulmes, for these reasons, declined taking the said deed.</p> <p>The complainant has continued in possession of the premises ; and, the bill says, has greatly improved the same, and has frequently requested Thorpe to perform the several contracts,-and offered to perform on his parí-, if Thorpe would comply. •</p> <p>In--------Thorpe brought ejectment against-Hulmes to recover possession of the lands mentioned in both agreements. The bill states, that- on the 28th of July, 1843, Hulmes tendered to Thorpe $221, the amount for which the first bond was to be given, under the second agreement, and the interest thereon, and four bonds and mortgages, according to the terms of that-agreement, and also another bond, dated July 25,1843, for $350 and interest from November 1, 1840, payable in coal, according to the first agreement, in two equal annual payments from said July 25, 1843, and a mortgage on the lands in the first agreement mentioned, executed by Hulmes and his wife to secure the same; and thereupon requested the deed for said several lots; and that Thorpe replied that he rvas not ready, and never would be prepared to give a-deed executed by his wife, saying he had been divorced from the woman who was formerly his wife.</p> <p>The bill prays a specific performance of the said two agreements, and that a deed, executed by Thorpe and his wife, maybe decreed to be delivered to- the complainant, sufficient to convey the- lands free from all incumbrances, and an injunction against the ejectment.</p> <p>The injunction was allowed.</p> <p>The defendant put in his answer; to which a replication was-filed; and testimony was taken on both sides.</p> <p>The- cause was brought to a hearing on the pleadings and proofs.</p>

<p>'The statement of the bill in this case is, that Joseph W. Reckless, being indebted to “ The Commercial Bank of New Jersey” on four promissory notes, drawn by said Reckless, and indorsed, respectively, by another person, and discounted by the said bank, being renewals of previous notes of long standing, ■for the better securing the same, and as collateral security, therefor, on -the 5th March, 1841, executed his bond to the said bank, conditioned for the payment of $3600, the amount of said four-notes, and, to secure the payment of tlie sum mentioned in -the condition of the said bond, executed, with his wife, the.mortgage set forth in the hill: that the mortgage was acknowledged by J. W. Reckless and wife, on the day of its date, and was registered on the 24th March, 1841. That after -the execution of the bond and mortgage, they were delivered to the complainants. That ,J. W. Reckless, or some person for him and in his name and by his authority, under the plea or pretence of procuring the assignment of a certain policy of insurance on the premises, to the complainants, and the assent qf the insurance company to the assignment, shortly after the delivery to the complainants of the bond and mortgage, procured them from the complainants, with the full understanding and belief of the complainants that they were to be returned to the complainants, when the object for which they were taken was' accomplished. That the mortgage was returned to the complainants ; but that .Reckless, at all times thereafter, refused to-deliver up the bond to the complainants ; and that the bond remains in the possession or under the control of Reckless.</p> <p>The complainants charge that the bond was actually deliver-ed to them with the mortgage ; and insist that their rights are not affected by the detention of the bond ; and further insist, that “ as the mortgage was given as security for the payment of the notes, to the amount specified in the mortgage and bond, their right in such- security is good and perfect, independently of the bond, which was not the evidence of the debt, but merely designated the amount for which security was given.”</p> <p>J. W. Reckless, in his answer, admits his indebtedness outlie notes; and says, that on the 5th March, 1841, and for several weeks previous, he was- sick and confined to his house and bedroom, and that during his iilness he was applied to' from time to time and importuned' by the bank to secure the notes by a bond and mortgage on property at Amboy; which he repeatedly refused to- do, because he had no property except what he acquired by his marriage, and which, by an agreement with his wife before marriage, ho was bound to convey in trust for her. That being debilitated in mind and body by his sickness, he was so far overcome by the importumticG- of the hank that he had a bond drawn up, of the description mentioned in the bill, and also the mortgage mentioned in the bill, and which is now in the complainants’ possession; and that on the said 5th March, 1841, Judge Potter came to his room-where he was confined, and he executed the bond in the presence of the said judge, and he and his wife executed the mortgage and acknowledged it before the said judge; but that neither the bond nor the mortgage was ever delivered by him, or by his authority, to the complainants or to any person for them; and that the bond has never been out of his possession. That im - mediately after the bond and mortgage were signed, ho dots'?*mined in his own mind never to deliver them, for the reason that the1 property embraced in-the mortgage was the property of his wife, and’ was agreed to be secured to her, as before stated ; and that be never did deliver them. That a'few days after the mortgage was signed, his son Anthony, at the request of the said defendant, took the mortgage out of his possession,- and went with'it to the clerk’s office for the purpose of procuring a certificate of s'earch ; and, as he is informed by Anthony and verily believes, Anthony took the mortgage to the clerk’s' office, and left it there with the direction to have a search made as to incumbrances on the property; and that, without his knowledge or authority, and; as he is informed and believes, ■ without the knowledge, direction or consent'of Anthony, the’ complainants procured the mortgage from the clerk’s office: and that they obtained possession of it without his consent or know-' ledge, and contrary to his wishes and intentions. That neither ’ he, nor any person by his authority, ever called at the bank and procured the mortgage or bond for the purpose mentioned in the-bill. That Anthony went to New-York, after the bond and mortgage were signed, and without having the mortgage,to obtain a renewal of an old policy of' insurance on the premises, taking the old policy with him, and did obtain the renewal; and that he is informed by Anthony and verily believes, that Anthony never obtained the mortgage from the bank for that or any other purpose.</p> <p>Mary Ann Reckless, the wife of Joseph W. Reckless, answer-ing for herself, says, that she signed the mortgage with her husband, at the time and place and in the manner stated by him; that she'never knew of any delivery of the bond and mortgage to the complainants or any person for them; and that she knows no matter or thing variant from the facts stated by J. W. Reckless in the answer, or in any way inconsistent therewith ; and that she knows no additional fact concerning the execution or delivery of the bond and mortgage.</p> <p>Joseph W. Reckless, further answering, says, that since the date of the bond and mortgage, the complainants have sued and obtained judgments on the said several notes, and issued executions, and caused the property described in the mortgage, with other property, to be levied on and advertised for sale; and' that his wife and her trustee exhibited their bill in this court, claiming the property by virtue of the trust deed referred to ia the bill, and obtained an injunction restraining the complainants from selling the property under the said executions.</p> <p>The defendants admit, that on June 11th, 1842, they conveyed the premises to Nathan Sattcrthwaite, and say that before their intermarriage, the said Mary Ann was seized in fee of the premises, and it was agreed between them, previous to their marriage, and that it was'the agreement on which the marriage contract was entered into, that all the property of the said Mary Ann, real and personal, should be conveyed to a trustee, upon such trusts as would secure the' same for her use, and beyond the control and free from the debts and liabilities of her said husband; and that' the conveyance to the said Nathan was made in pursuance of the said ante-nuptial agreement, upon certain uses and trusts, and subject to certain powers and limitations mentioned in the deed, (referring to the deed.)</p> <p>A replication was filed July 22d, 3 844. A decree pro confesso was taken against the other defendants in October, 1843.</p> <p>Anthony Reckless, sworn for the defendants. A bond being produced by J. W. Reckless and shown to the witness, marked Exhibit 1 on the part of the defendants; he says it is signed in the liand-writing of his father, J. W. Reckless, and is the bond referred to ia the mortgage; that he was present when the bond and mortgage were signed by his father; they were signed at his father’s house, in Amboy, he thinks about ten days or two weeks after they boar date. His father ivas then confined to his house by sickness, and had been for two or three weeks; he was not confined to his room at the time ho signed the bond and mortgage. During his sickness he had been confined to his room, but not to his bed. After they were signed he took them into his possession : they were delivered to him by his father. He placed them with his private papers in a small trunk; and in the course of two or three days he took the mortgage to New-Brunswick, for the purpose of showing it to the clerk as a description of the property on which he wished to get a certificate that it was unincumbered. Previous to taking it to New-Brunswick he did not show it to any one.When he took the mortgage to New-Brunswick he left the bond in the trunk. He gave the mortgage to Mr. Booraem, the clerk, in New-Brunswick. He gave no instructions to have it recorded. He was never authorized or directed by his father'to have it recorded. He does not know why the clerk recorded it. When he" saw the clerk, the next day, he asked him for the certificate and mortgage; the clerk gave him the certificate, and said he had left the mortgage in his offiée to be recorded; which he said was probably done. He told the clerk he was very sorry he had had it recorded," as he, the witness, did not intend to have had it done.' The clerk said ho supposed witness wanted it recorded, and therefore he had it done. This conversation' took place in the street, in New-Brunswick, near Stelle’s hotel. He took the certificate homo, and thinks he sent it to the president of the bank, through Mr. Arnold ; but is not certain of it. After this conversation with the clerk, he did not inform his' father what had been done; not immediately; he informed him ■ of it in the course of three or four weeks.- His father found the mortgage was gone, and made inquiry about it, and witness-informed him. His father disapproved of the mortgage being-recorded. He never got the mortgage from the clerk. His father told him he had better try and get the mortgage. After the bond was signed witness never took it out of bis father’s house. At that time he knew it was not necessary to have a bond recorded. Previous to the signing of'the bond and mortgage, witness had a conversation with some of the officers of the bank, in reference to having a bond and mortgage executed." These officers were the cashier, and Mr. Bruen, one of the directors. Witness had made arrangements with them to give the bank a bond and mortgage and fake up certain notes which the bank held against his father. The amount of the notes corresponded with the amount of the mortgage. The notes were to he given up when the bond and mortgage were delivered to the bank. There was no agreement as to the bond and mortgage being left there as collateral security. Witness never delivered the bond to the bank or any of its officers. His father never authorized hinnso-to do unless the bank would give up the notes at the time it was delivered. The bond and' mortgage are in witness’s hand-writing. Witness here desires • to correct a previous pari of life deposition ; and now soys the bond and mortgage were signed at or about the time they bear date. His father was sick a great deal about that time: and witness attended to his business generally.</p> <p>On cross-examination, he saya, that his father, when he signed the bond and mortgage, was well aware of what he was doing; he knew the contents of them. Witness took the mortgage to the clerk’s office for the. párpese of having a search made, and far that purpose only. Be asked for a certificate that there was do incumbrance on the property described in the mortgage. lie did not speak of it as his father’s or mother’s. ’I’he search was. not made at Ids father’s request, but at the request of the president of the bank. The president requested "witness to have the search made. Mr. It. JSruen was president. Witness said nothing to his father about having the search made. Ho doss not think he told his father he had had a search made, till the conversation took place about the mortgage being recorded. He fe not certain that in the conversation with the clerk, the clerk said the mortgage was probably recorded; he thinks the clerk said so. When lie got the certificate he asked the clerk for the mortgage. The reason why he did not get the mortgage was because'it-was at the clerk’s office, and be supposed that when lie went home the arrangement with the bank might be carried out. The arrangement between his father and the bank, of which he speaks, was completed when he left the mortgage in the clerk’s office. His objection to having the mortgage recorded was, lie did not think it was his business to have it done, fie intended to give it to the bank and get the notes, and let the bank have it recorded. After the mortgage was recorded it, belonged to the bank; and he supposed they would give him the notos, as the mortgage was then in the cleik’s office. Me does not know how long the mortgage was in the clerk’s office, tie never sent or went for it. lie does not know who got, it from the office. He delivered the search, through Mr. Arnold, to the bank, because he wished the president of the bank to see it. Be thinks neither the president nor any of the officers of the bank ever told Sum they were satisfied. The search was procured for the bank. After it was procured, and the mortgage loft at the rierk’G office, he had n conversation -with the cashier relative to the matter. 'He told the cashier the mortgage was-recorded in the clerk’s-office, and that he would like to give the bond ■ to- the bank and take up the notes. The cashier said he would talk with the president about it. It was-some days before witness-got an answer from the president, whether he would give up the notes or not. The cashier-said the president was unwilling to give up the notes, as the mortgage was. intended only as collateral security. Witness told him that was not the understanding on his part; he thought the bank intended-to give up the notes; he did not think it was right. Witness did not ask-the cashier for the mortgage at the time; he does not recollect asking any officer of-the bank, at that or any other time, for the mortgage. He did not tell Mr. Nichols, or any other officer of ’the bank, at • that or any other time,, that he would get the mortgage from the office. He does not know why-..he did not-at that time ask for the mortgage. He considered it at that time as belonging-to the-bank. Before the bond and mortgage were signed, he took, either them, or the ones from which they were copied, to the bank, for inspection ; he thinks they .were left in possession of the bank two or three days. He took a policy of insurance also to the bank, either .at. that or some other time. He afterwards called for these papers, and the cashier, Mr. Nichols, gave them-to him. He took them home to his father’s house. A part of the arrangement between his father and-the bank, was, that a policy of insurance should be given on the mortgaged premises. Such a policy was made out by the North River Xnsurancé Company of New-York, for the amount mentioned in -the mortgage. It was shown to the bank and taken from them again. He does not,think it was ever given to the bank to keep. He thinks, but is not certain, that it was shown to the bank about the time .when the bond and mortgage were- made. At .the time the mortgage was given, .the bank was talking about commencing suits against his father. .He does not know that-they had given his father notice of it. He does not recollect that, he was ever ■present at any conversation between his father and Mr. John Arnold in reference to the notes. When he left the mortgage with the clerk he did not notify him not to deliver it to any ..other person. When he met the clerk in the street and asked him about the certificate and mortgage, the clerk had the certificate with him.</p> <p>On re-examination on the part of the defendants, he says, that when he stated, in his cross-examination, that the arrangement was completed - between his father and the bank, he meant nothing more than that the terms of the agreement were completed. When he says he considered that the mortgage belonged to the bank, he does mean to say he thinks the bank ought to have it, - but only that it legally belonged to the bank.</p> <p>On further cross-examination he says, that after he was told by the cashier that the bank would not give up the notes, he did not say to the cashier that lie considered the transaction at an end.</p> <p>James A. Nichols, the cashier of the bank, sworn on the part of the complainants, says, that the notes in question were discounted at the bank, for the accommodation of Reckless; they had been running for a considerable time. The notes described in the bill are renewals of former notes. He says that the mortgage was given as collateral security for the payment of the notes. That Mrs. Reckless called on witness, and wished to know if the bank would not take a mortgage for $3600, to secure the amount due on the notes, and until Mr. Reckless should be able to raise the money to take up the notes. Witness directed her to Mr. M. Bruon, that ho might lay the proposal before the board of directors. Mrs. Reckless met Mr. Bruen just below the banking house; and subsequently the board decided to take the mortgage. At this time, the proposal was that the mortgage should bo given on the homestead, in Am-boy. -Afterwards she proposed to give it on the property described in the mortgage. Witness knows that a bond was executed by J. W. Reckless to the complainants; he has seen it; had it in his possession as cashier of said bank. It was given to witness as such, by A. Reckless, son of J. W. Reckless. Witness has not the bond now in his possession; nor has the bank. The bond and mortgage and a policy of insurance on the pro - perty, were given together to witness, by said A. Reckless, at the bank, and as cashier of the same. The papers above mentioned were all executed at. the time of said delivery. Witness thinks he saw the.mortgage before execution; thinks the mortgage, or a rough .draft of it, was presented-to the bank before execution, to see whether it was correct, and the bank were satisfied with them. After this they-were returned to A. Reckless by witness, for the purpose of having them recorded and that the policy of insurance might be transferred to the bank. ' The bond was handed over at the same time, witness being under the impression that it was necessary torecord the bond as well as the mortgage. The president directed that Mr. Reck.less should he at the trouble and expense of recording the papers as well as preparing them. Neither the witness nor the hank have ever had possession of the bond or policy since. The bank obtained possession of the mortgage from the.clerk’s •office. J. W. Reckless, -at the time of the preparation and delivery of said .papers, was confined to his house by sickness, during which A. Reckless acted-for him -in this matter. Witness does not'know that Mr. Reckless ever absolutely refused to return the bond. Witness sent to> the clerk’s office for the mortgage; thinks the'bank was about foreclosing at that time. It -was a-long while before it was sent for. The bank did not pay ■the fees for recording,. to the • knowledge of witness. Witness, during the time-the mortgage-lay at the-clerk’s office, supposed ■the bond was there with it; not during.'the whole time, howev,«r, because he was informed it was not; was so informed by A. ..Reckless; up to which time he supposed it to be with the mort-gage at the clerk’s office. The permission of the insurance .company to transfer the policy.to the bank was obtained by Mr. Reckless, or some one for him. The policy, at the time •witness had it, had a "blank assignment on it not filled up; it being .necessary to obtain the permission of the company for this purpose. The date of the said permission was March 15th, 1841; that of the policy being March 8th, 1841. Witness obtained his knowledge of the -fact of permission being granted and the date thereof, from inspecting the books of the company in New-York. Witness did not see the policy in New-York. It was a part of the understanding, and a condition on which the mortgage was taken by the bank, that the property should be insured, and the policy assigned to the bank. The bank never paid any premium for insuring the property. Joseph W. Reckless and his wife, in February, 1841, gave another mortgage on the property then belonging to Mrs. R.; gave it to witness ; a bond was given at the same time; both arc now in witness’s possession. Witness had a conversation with Mr. Satterth waite in regard to the mortgage mentioned in the bill. Mr. Salterlhwaite, as trustee for Mr. Reckless and his wife, asked witness if the bank would wait and let the mortgage lie, provided he would pay up the back interest and pay the future interest as it became due. Witness stated to him that there were other amounts due the bank from Mr. Reckless, and that, witness thought, it would be necessary to make some arrangement about that before the bank would consent to wait. Mr. Sattorthwaito replied that he had nothing to do with any other debts; that he had only to treat about this mortgage. The conversation was in the street; it was commenced by Mr. Satlerlhwaite. He was then attending to some repairs about the property described in the mortgage. Witness thinks it was in the summer before last, (1842.) This conversation was objected to.</p> <p>On cross-examination he says, he got Ids mortgage recorded, lie does not, recollect whether he took it to the clerk’s office himself or sent it; rather thinks he sent it, a few days after if was delivered to him, and before the papers for the bank were left with him. Witness believes he sent both bond and mortgage to be recorded. Thinks he got them from the office by sending an order for them. He never had taken a bond and mortgage from any person before that, either for himself or for the bank. He mentioned to the president of the bank that he' had delivered the papers to A. Reckless. Thinks the president told him to deliver the papers to A. Reckless for record ; is satis-* lied lie told the president he had delivered the papers to A. Reckless to be recorded, and the policy to be assigned. The president expressed no surprize that witness had delivered the bond. Witness required no receipt from A. Reckless. He expected the policy to be returned as soon as it should be assigned. He made inquiry after the papers about three mouths after-wards, it might have been; made the first inquiry of A. Reckless. Thinks the question was asked by some one of the directors whether witness had re-obtaiued the papers. Witness remained perfectly easy during these three months, in relation t'o the papers, because he presumed that the bond and mortgage were at the clerk’s office, and the policjr at the office' in New-York. A. Reckless wás to return the policy to witness. When A. Reckless took the bond with the mortgage for record, he did not say he wanted the bond for record; but witness thought it was necessary. A search was made previous- to executing the mortgage. He thinks he informed the complainants’ solicitor as to the means by which A. Reckless obtained the bond, in order to enable him to draw the bill. A.- Reckless, at the time of the negotiation, lived with his father, in- Amboy. He left soon after, for Monmouth. The first time he saw him after his return from Monmouth, witness conversed with him respect1 ing the papers. Witness introduced the subject. He thinks the complainants’ solicitor read the bill of complaint to him, the witness. As witness recollected them at that time, the facts stated therein were correct. Mr. Reckless, during this transaction, was in embarrassed circumstances. The directors felt uneasy respecting some of these debts; they were desirous to secure them. He has understood that the property embraced in the mortgage formerly belonged to John Patrick, the first husband of Mrs. Reckless. He first discovered it was unnecessary to record a bond in New-Jersey from Mr. Paterson.</p> <p>Being re-examined in chief, he says, time was given to Mr. Reckless, and the mortgage in question taken, in order that Mr. Reckless might be enabled' to raise the money; Mrs. R. then stating that to sell the property at-that time would be a great sacrifice. The property of Mr.' Reckless was considered by the officers of the bank, at the time of executing this bond and1-mortgage, sufficient to pay all his debts. The understanding- of the bank and Mr. Reckless was, that the bank- should retain the notes- also, and that the bond and mortgage were taken as collateral security. Thinks the bank would not have consented to take the bond and mortgage in lieu of the notes. He never would have re-delivered the papers to A. -Reckless unless under the supposition that they- would be returned in good faith. He had at that time every disposition to believe that the agreement would be carried out and the papers returned in good faith. On satisfaction of this mortgage, witness, as cashier, would have delivered up the notes to Mr. Reckless.</p> <p>Being again cross-examined, he says, that when he says' that the property of Mr. Reckless was considered, at the time of executing this bond and mortgage, sufficient to pay ail J. W. Reckless’s debts, he means all his property, as well derived from his wife as otherwise.</p> <p>Matthias Bruen, sworn for complainants, says, that while walking in the street, at Amboy, about the time of the giving the bond and mortgage in question, he was met by Mrs. Reckless, who said she had just been conversing with Mr. Nichols, who had referred her to witness. He asked her what her object was. She replied that they had bad.notice that the notes held ' by the bank against Mr. Reckless were to be put it enit. Witness said it was so: that they had been running a long time, and that the directors had resolved to bring the business to a close. She appeared to be in great trouble, and said she hoped witness would not press the thing. He answered that the board had no desire to do any thing unreasonable; to which she said she would secure the claim of the bank. Witness asked her in what way. She answered, by giving a mortgage on her own-property, or property that once was hers. Witness sakl he understood the property then belonged to her husband; that she had made it over to John Reckless, and he to his father, of same date. Witness then said he would lay the case before the board ; that he was but one of the board ; and they would determine what to do. He did lay the circumstances before the board, at their next meeting, and they agreed to take a bond- and mortgage as collateral security for the notes due, and to suspend prosecution on the notes. He had a conversation with A. Reckless. He told witness he would have all the papers executed, and would leave them with the cashier. At the time of this conversation, Mrs. Reckless proposed to give a mortgage on the homestead, which the bank preferred ; but Mrs. Reckless afterwards asked the bank to take the mortgage on the premises described in the mortgage. The bank at first did noS think favorably of the proposal to take any mortgage; thinking the notes had been too long running; and witness himself was opposed to it; but Mrs. Reckless appealed to his feelings and wept, and he convented and so did the bank, to accomodate her and not blj&piiEík ÍJ. i?M3 ¿tifia lififik fi.fifififiU ID Afi proposal, it was understood expressly that the notes were to be retained by the bank; and the bond'and mortgage were.as additional security. ■ Such was the understanding, not only of Mr. Reckless and wife, but also of some of the endorsers on the notes. The bond and mortgage would not have' been accepted if the condition-had been that the notes were to be given up.</p> <p>On cross-examination, he- says, he is not a stockholder in the bank; that he parted with his stock on the- Wednesday or Thursday before the day of his examination. He says it is very likely he parted with it in order to be a witness in the cause; but does not say positively-. That he* has no interest ia that stock at present. His interest in the stock was somewhere about 1500 shares. That he is not a director; that he resigned his office as such a few days before his examination.</p> <p>Nicholas Booraem, sworn for the complainants, says, he io, and was on the 24th March, 1841, clerk of .Middlesex. Being shown the mortgage, he says the indorsement of registry on it is in his hand-writing. He does not recollect who left the mortgage with him ; but, from the indorsement on itr he knows it came into the office on the 24th March, 1841.- He supposes it was brought to the office for record, or he should not have recorded it. He does not remember that it was brought to the office by A. Reckless; cannot say who brought it. He has no recollection that A. Reckless ever asked him for a certificate of incumbrances on the property mentioned in the mortgage, or any other property of J. W. Reckless. It is not usual for him to carry in his pocket- certificates of search that he has made. Unless requested otherwise, he leaves them in the office to be called for. He does not remember how long the mortgage remained in the office after it was recorded; nor does he know how it was taken out. He is under the impression-that he sent the mortgage to the cashier of the Commercial bank, at his request expressed in a letter-; yet he may be mistaken, as the cashier had a mortgage of his own in the office about the same time, given to-him by the same parties who executed the mortgage’ to the bank. ' He does not know who paid for recording the mortgage to the bank. He should not have recorded the mortgage unless he had understood, at the time it was left in the office, that, it was to be recorded. He does not remember; that he was ever notified not to deliver the mortgage to the bank., If be had received such a notice, he should not have delivered it without an investigation.</p> <p>A certificate of the secretary of the North River Insurance Compaq, that on the 15th March, 1841, consent was given by that company for the assignment of the policy to the Commercial Bank, was admitted in evidence.</p> <p>It was also agreed by and between the solicitors that certain judgments obtained by the complainants against i. W. Heck-less, in the supreme court, in November, 1842—one for §4029, and the other for 01014—be admitted in evidence, for the defendants ; and that the deposition of Anthony Reckless, though not closed, be admitted and read in evidence.</p>

<p>An infant daughter ordered to be delivered to her father, on a habeas corpus applied for by him, though he had verbally committed her to the eare and custody of the respondent until she should attain the age of twenly-ono, and the respondent had adopted her accordingly.</p>

<p>A writing, purporting to be executed by P. J. by a mark, which writing, with the names of all the persons whoso names were subscribed as witnesses, and the ñamo of P. J., were in the hand writing of one of the persons whose name was subscribed as a witness, not admitted to probate on proof that the signature of the person who wrote tiie will and signatures was her hand writing, and that she was dead.</p>

<p>,The conditions of sale for tlje sale of lands and buildings provided for the sale of the buildings separately ; and one, of the conditions of the sale was as follows : .“ The buildings will be sold, to he removed within thirty days from this date,from the premises.” Held that.the purchaser of a building, ■ who also purchased the lot on, which it stood, -w.as not bound to remove the building.</p> <p>■The court cannot act op a distinct ground for relief made by the proofs, if it be not set up in the bill.</p>

George D. Abrahams, at' different periods after his marriage with Phebe his wife, bought three several tracts of land, and the deeds therefor were, by his directions, made to James Burrows, conveying the lands to the said Burrows in trust for the use and benefit of Phebe Abrahams, wife of the said George D. Abrahams, and her right heirs for ever, so that the same should not be, in any manner, subject or liable to the control, debts or liabilities of her said husband or any…

<p>The Tacts of this case sufficiently appear in the opinion delivered.</p>

The bill is exhibited by the wife against her husband, for alimony and maintenance of the complainant, and for the support and maintenance of their child. It. states that the marriage took place May 13th, 1844, in Newark.

<p>Thf, facts of this case sufficiently appear in the opinion of the chancellor.</p>

<p>Benjamin Smith, deceased, late of Elizabethtown, died in November, 1824, leaving a will, by which, after giving several legacies, he gave the residue of his estate to the children of his nephews, Benjamin Smith and Israel Smith, share and share alike, “-to .them, the survivors or survivor of them at the ■time any dividend is made for them by my. executors.”</p> <p>No dividend was made by the executors until 1840. The .executors, when they made the dividend, retained the share that would be payable to Jasper B. Smith if he was aliye.</p> <p>Jasper B. Smith left the state in 1829; and the bill was filed by the other children of Benjamin Smith and Israel Smith, to recover their shares of the portion so retained by the executors as and for the share of Jasper B. Smith.</p> <p>The bill, filed in 1844, states, that Jasper B. Smith left the state in 1829, being then a minor of about nineteen years o.f age, and had not since been héard from; and is founded on (the presumption of his death thence arising, under the provisions of our “ act declaring when the death of persons absenting-themselves shall be presumed.” Rev. St at. 781.</p> <p>The answer admits that Jasper B. Smith left the state in April, 1829.,- but denies that he had not been heard from; and states that the defendants are informed and believe that he had ¡been heard from twice since he absented himself from the state, ¡once in August, 1830, and once in the fall of 1835.</p> <p>A replication was filed and proofs were taken in the cause..</p>

<p>Construction of the mechanics’ ,lien law applicable to some parts of the state.</p> <p>A carpenter finished a dwelling-house on a tract of land on the 17th November, 1842, and filed his claim-in the office of the clerk of the county on the 17th January, 1843, On the 22d December, 1842, the owner of the land, then in possession of the house, mortgaged it to a person having no actual knowledge of the carpenter’s lien. Held, that the carpenter’s lien was pri- or to that of the mortgage.</p> <p>It was held that the carpenter’s lien was not confined to the house and the ground it covered ; but extended to so much of the tract of land on which the house was built as, with the house, would be required to discharge it.</p>

<p>The bill was exhibited July 8th, 1845, by Joseph D. Wilson, -against David Fisher and George Robbins, executors of the will of Jacob Fisher, who died February 1st, 1837, to recover from the executors the one fourth part of the one fifth part of the residue of the personal estate of the testator after paying -debts and legacies ; the said residue having been bequeathed 'by the testator to his five children, in equal parts, and the complainant being one of -four children of Margaret, a daughter of ■the testator, who had died since the testator.</p> <p>The bill states that the executors, in April, 1842, settled «their account of the estate in the orphans’ court of Monmouth county, in which they charge themselves-with $14,152 57¿, •and credit themselves with disbursements $200 51, and admit a balance in their hands of $13,932 06 J-, after -paying all the debts and specific legacies, to be disposed of agreeably to the ■will. That the said account was the joint account of the executors, and was sworn to by each of them, and was reported by the surrogate of Monmouth to the orphans’ court of the county; and that the said court; in April, 1842, decreed that ithe same be allowed in all things.</p> <p>The defendants answered separately.</p> <p>David Fisher, -in his answer, admits the account exhibited .and settled by the executors in the orphans’ court, as stated in ■.the bill.; and says, that by joining with his co-executor in ■having the accounts so stated and reported by the surrogate it ■was not his intention to make himself chargeable for any more -of the assets than had come to his hand, and that he was so advised by his counsel and believed, when he joined in the account; it being necessary to have their accounts so settled, to -ascertain the general balance, to determine the respective shares ■of the residuary legatees. He .says that $11,158 81, of the -balance of the said amount, was received by him, and that it was fully laid out and disbursed, to those entitled to receive it ■under the will; and that the residue of said balance, viz. $2773 25, was received by Robbins; and that of that sum there is yet in Robbins’s hands, as he believes, some $1200, to be paid out and distributed under the will.</p> <p>That he and Robbins have at all times kept separate ac.counts of the assets which have come to their hands respectively, and taken separate vouchers for their respective disbursements ; and that he has fully paid out and disbursed all that .came to his hands. That on the 8th April, 1839, he paid to (the complainant $412, in part payment of his legacy, and took -his receipt therefor. That the complainant has not, nor has .any person for him, made any demand of him for any balance duo the complainant on his legacy, or tendered any refunding bond to him. or' made any offer of two sufficient securities, as required by law, before the filing of the bill, or at any other time; and he submits that the bill should be dismissed as-against him. That after the accounts were settled, he paid out the balance of the estate in his hands to such of the legatees as demanded the same of him and tendered to him the sureties required by law.</p> <p>That Robbins had sufficient assets in his hands to pay the balance of complainant’s legacy., and that he expressly retained it for that purpose; and that when idiccomplainant, in the fall of 1842, called on him, this defendant, to learn something in reference to the estate, he told the complainant he had disbursed all the assets that came to his hands, and that Robbins had the funds to pay the balance due him.</p> <p>The answer of Hobbies, the other executor, admits that he became possessed of personal estate, to the amount of the two several sumo of $2773 25 and $5296 12; and says that ho paid, out of the same, in the administration of the estate, $1831 68, including his commissions; leaving a balance in his hands, unapplied, and for which he is accountable, of $1237 69. That he is insolvent; and that on the 8th February, 1845, he was declared a bankrupt, and has obtained a certificate of his discharge. He says that in joining in the accounts stated aral reported by the surrogate, it was not his intention, nor, as he believes, the intention of his co-executor, to make themselves severally chargeable for more of the assets than bad come to their hands severally; and that he was so-advised by his counsel and believed, when he joined in the account ; stating the object of their joining to have been as stated by Fisher in his answer.</p> <p>He says that after Fisher had disbursed what was in hiu hands, he, Robbins, had $1237 69 in his hands, which was sufficient to pay the balance due the complainant and the balance due the other children of Margaret; and that Be took upon himself and promised to do it; but that he is unable to do it. That he and his co-executor have at all times kept separate accounts and taken separate vouchers. lie denies demand or tender of refunding bond; and says that no decree of distribution has beeh obtained against him and his co-executor in the said orphans’ court, showing what portion of the personal estate came to the hands of him- and his oo-executor, or what' were their respective disbursements.</p> <p>Replications were filed and proofs taken.</p>

<p>J. C. died March 15th, 1833, leaving a will by which he orderecfall his debts-to be paid, and gave and bequeathed to his widow all his estate, real and-1 personal, during her natural life or widowhood, and appointed-her sole executrix thereof; the will containing no devise or bequest of tho estate after' her death. The testator left a grandson his only heir at law. The widow and the grandson and his family occupied the dwelling-house and lands,, and converted all the personal property to their own use. On the 24th July, 1834, the widow and the grandson and his wife conveyed ail the real! estate to T. B. S. On a bill by a creditor of the testator attacking thebona tides of the sale, and the answer and proofs in the cause, the deed was declared void, and the lands held liable for the complainant’s debt.</p> <p>0n bill filed by a creditor of a testator by bond signed by the testator and a-surety, to set aside a sale of lands made by the executor and devisee, and to subject the lands to tho payment of the bond debt, held that the surety was not a necessary party to the suit.</p>

<p>A. having re'coverod a judgment at law against B. and issued execution which'* was returned “ no goods or lands,” filed a creditor’s bill against B., which, after answer, was dismissed with costs. Held, that the judgment at law could not be'set off against the costs of B. on the creditor’s bill.</p>

<p>Bill for foreclosure. Cornelius Poland gave a mortgage to Lewis Moore, dated April 3d, 1835, to secure $1200, according to the condition of a bond &c., in one year. Moore died intes,-i,ate, in January, 1836, leaving a widow and two daughters, Jane and Ann, leaving no real estate, and very little personal property except this bond and mortgage. Before the death of Moore, Poland married the daughter Jane.</p> <p>The answer states, that after the death of Moore, the widow and daughters consulted as to the expediency of taking out letters of administration, and agreed that, from the situation of •the family and the nature of the property, it was unnecessary and inexpedient; and that it was agreed that the widow should receive the income of the property, consisting of little more than the interest on this bond and mortgage, during her life, and that at her death the property should be equally divided between the two daughters, by whom the' debts, if any, should be paid equally. That Thomas Hull, who afterwards married the .daughter Ann, was informed of this arrangement. That under this arrangement he, Poland, paid to the widow the year’s interest, and loaned to her other .sums of money, which he submits should be decreed to have been paid to her on account of her share and interest in the sum secured by the bond and -mortgage. That the widow died in 1837; and that from her death, Ann lived and made her home with Poland and his wife ffill October, ,1842, when she married Thomas Hull.</p> <p>In January, 1844, Henry S.-Lupardus took out letters of ad- ■ ministration of the estate of Moore; and in March, 1844, filed 'his bill of foreclosure - on the said mortgage. Ann Hull died -without issue, in May, 1845.</p> <p>Poland died, after'the suit was commenced and before answering, and the answer-is put-in by the administrator ofhis estate.</p> <p>The answer states that he, the administrator, has been in-formed and believes that Ann desired and requested that her •part of the interest on-the bond and mortgage should go on account of her board while she -was living .-and continued to live ■and board in Poland’s family; and that.over and above such board Poland, -in the years 1837, 1838, 1839 and 1840, burnished articles and paid or advanced to or for the said Ann ¡divers sums of money.</p> <p>Poland died.in September,¡1844, leaving Jane bis-widow and -several minor children. No administration was taken of the -estate of the widow, or.of that of Mrs. Hull.</p> <p>Testimony was.taken touching the alleged -agreement that the widow should .receive-the interest on the bond during her life, and as to whether Ann was to -pay board while she lived at Poland’s or whether her services in tlie.family were considered equivalent to her board ; and also as to the property which 'Lewis Moore left besides this bond and.mortgage.</p>

This was a bill by the wife, by her next friend, against the husband, for alimony and maintenance and for the- support of their child.

Fulgence Chegary, in August, 1844, exhibited his bill in the court of chancery, stating, that in 1839 he bought of J. R. Freeman a tract of land of about seventy acres, near the village of Madison, in Morris county, for the sum of $3875; and gave to Freeman a mortgage thereon for $1400, part of the purchase money, on which mortgage $1000, with interest from April, 1.844, remained due.

William Williamson died in 1765,-seized and possessed of a farm containing two hundred and ninetjr acres, leaving a will, dated Juno 20th, 1764, by which, after bequeathing a legacy of £33 to his wife, he ordered that she should have command of'his plantation, household-goods, stock of creatures and farming utensils during her widowhood; and that when she should marry or die, .the executors of his will should take into their possession -all his lands and personal property…

This was an appeal from the final sentence or decree of the Ordinary or surrogate-general, approving and confirming the report of commissioners assigning dower to Elizabeth Anthony, widow, &(!.

<p>The testator, by his «will, gives to his aunt, Ann P. White, $10,000, to he paid to her as soon as .practicable after his decease, or with interest from that time. lie then gives several other money legacies, lie then makes specific bequests of furniture and other articles of personal property. lie then says that he wishes his bank stock to make a part of his dear aunt’s legacy, as it will give her less trouble in collecting. The will then provides thus:—“Item. After all my just debts are paid and the expenses of ful» .filling this my last will and testament, I give and bequeath all the remain, dor of my property, both real and personal, to be equally divided among my four cousins (naming them.) Item. I wish that the house I have lately purchased of C. M. Campbell, valued at $4000, to ho part of my dear aunt’s legacy, and that in the division of her portion my Trenton hank be calculated at $40 per share and my Easton bank at $30 per share.” And by a codicil to his said will, he gave to his aunt, Ann P. White, in fee simple, a lot of woodland, (describing it,) containing fifteen acres, and all the plate in his house, and some other articles of personal property; and also gave by the codicil three other money legacies, ono of $200, one of $50, and one of $75.</p> <p>Held, That the lands devised in the residuary clause of the will wsro not. chargeable, in aid of the personal estate, with the payment of the legacies ; but that the personal estate being insufficient. t,o;priy the legacies, they must abate.</p>

<p>This case is reported in 3 Green’s Chan. 343. The cause was argued in this court by</p>

The appellant, on the130th Juno, 1843, fifed his bill, in tho court Mow, to foreclose a bond and mortgage given by the said Company to Jared N. Stebbins, dated 10th January, 1842, to secure the payment of §9600 on the 5th January, 1845, with interest annually.

<p>On bill filed, the complainant had obtained an injunction restraining the defendant from aliening or incumbering certain real'estate which Was in' controversy between the complainant and defendant, and from collecting or recciving the rents ; and had also obtained an order appointing a receiver of the rents and profits. Afterwards, by an order dated February 13th, 1844, the Chancellor made an order authorizing the receiver, instead of collecting the rents himself, to permit the defendant to do it for him, until the further order of the court, upon the defendant’s giving bond with satisfactory security for the payment to the receiver of the rents received by him. Held, That such order could not be appealed from.</p>

<p>- This ease is reported ante, page 229'. It was argued on the appeal! by</p>

<p>The possession1 by a mortgagee-of a mortgage executed and recorded is, in itself, oogent evidence of delivery.</p> <p>The answer of a mortgagor to a bill of foreclosure denying the delivery of the mortgage is not, in-itself, sufficient to overcome the presumption of delivery arising from the possession of the mortgage by the mortgagee duly executed, acknowledged and recorded.</p> <p>The uncorroborated testimony of a single witness is not sufficient to overcome the denial of an answer. *</p> <p>An answer- may contain within itself such circumstances as will alone suffice to deprive it of all effieacy. Per Chief Justice Green.</p> <p>What evidence held sufficient of the delivery of a mortgage though the bond to secure which the mortgage was given was in the possession of the obligor.</p>

<p>D. G. tile tostatoT, gave the remainder of his real estate to liis three children,, P. the wife of C. W., C. the wife of W. S., and 1!. G., in fee simple, to be divided or sold as two out of the three heirs could agree; and appointed W. S. and B. G. executors of the will. Held, that the exeeutors had no powos in them to sell or to divide the real estate.</p>

<p>Several executions had been levied by a sheriff on tha-landa of “The Ham-burgh Manufacturing Company,” of which the first in'priority was in favor of E. The same sheriff had in his hands at the same time an execution issued on a decree in chancery, on the first mortgage, for the sale of the Mine farm- of “ Tho Clinton Manufacturing Company,” and also an execution at law against the said Clinton Company, by virtue of which ho had levied on the said Clinton Company’s Mine farm. E. held a subsequent mortgage on this Clinton Mino farm. Prior to the sale by tho sheriff, certain creditors of the Hamburgh Company, having no judgments, togethor with- E., entered into an agreement in writing among themselves that L., one of them, should, as their trustee, buy the lands of both companies, as a means of securing, their debts against tlie Hamburgh Company, including E.’s judgment and other claims he had or made against the Hamburgh Company and his mortgage on the Clinton Mine farm. There was also an understanding with P., who held the bulk of tho stock of both companies and was carrying on or conducting the business of the Hamburgh Company, that the said trustee should convey both properties to him, on his paying the debts of the said-agreeing Hamburgh creditors and the sums for which tho properties should be struck off to tho said trustee. Tho properties worn sold by the sheriff and bought by tho said L.; the other judgment creditors of the Hamburgh Company not being present at tho sale. The sheriff’s deed to L. was absolute. On a bill filed by the Hamburgh Company and I1., it was hold that L. was a trustee for the Hamburgh Company and its creditors both of tho Hamburgh property and of the Clinton Mine farm.</p>