Volume 5 — Paige's Chancery Reports

Previous to 'April, 1823, John Fross was the owner of a farm in the county of Columbia, on which J. Vanderpoel held a mortgage; upon which mortgage a decree for a foreclosure and sale had been entered ; and a judgment had also been recovered on the bond given as a collateral security for the •payment of the debt.

<p>Although an assignment for the benefit of creditors is fraudulent as to those who do not assent to it, the assignees are not answerable for the proceeds of assigned property actually paid to bona fide creditors of the assignee, pursuant to the assignment, before any others have obtained either a lega! or equitable lien on such property or the proceeds thereof.</p> <p>But if the assigned property was such as might be seized and sold on any execution, it seems it might still be levied on in the hands of a purchaser from the assignees, provided he had either actual or constructive notice of the fraud at the time of his purchase.</p>

This was an appeal from a decretal order of the vice chancellor of the first circuit, overruling the defendant’s plea, and permitting it to stand for an answer, reserving the benefit thereof to the defendant on the hearing. The bill sought for an account and payment of monies received by the defendant as the complainant’s guardian ; and also an account against him as the executor of the father of the complainant.

This was an appeal from a decision of the vice chancellor of the first circuit, refusing to dissolve an injunction, and directing the appointment of a receiver.

A question arose in this cause as to the regularity of the replication filed to the defendant’s answer. The jurat to the answer as erignally filed was defective, and the defendant had subsequently obtained an order permitting the jurat to the answer on file to be amended.

This was a petition to revive, and for leave to file a supplemental bill and to amend the original bill. The suit was commenced in February, 1828, by the complainants, as executors of William Edgar the younger, who was the executor of William Edgar the elder, to foreclose several mortgages given to the latter by R. L. Bowne.

In May, 1831, Jacob Arnold and J. A. Ford borrowed of the complainants $10,000, and to secure the payment thereof gave a bond and mortgage; in which mortgage Maria S., the wife of Jacob Arnold, also joined. The interest on the bond and mortgage was to be paid semi-annually; but no part of the principal was to become due until May, 1836; and the last instalment was not payable until 1841.

The bill in this case was filed for the purpose of annulling a marriage contract, on the ground that the consent of the husband to such marriage was obtained by fraud, force and coercion.

The complainant in this case filed his bill for the partition of certain premises, an undivided share of which premises was devised to two of the defendants, in trust, for the use of the other defendant. The trustees, who had never acted, put in an answer and disclaimer, refusing to accept and execute the trust. The complainant thereupon applied to the court, by petition, for the appointment of a new trustee of the share of the premises which had been so devised in trust.

In January, 1834, a sale, of lot No. 13, in Binghampton, • which had been made by a master in chancery, was set aside, and the master was directed to resell the premises, provided the sum of $3500 should be bid therefor upon such resale. From this order the purchaser at the first sale appealed to the court for the correction of errors; and the order of the chancellor was subsequently affirmed by the appellate court.

This case came before the chancellor upon exceptions to a master’s report, disallowing two exceptions to the defendant’s answer.

This was a motion to dismiss an appeal, from an interloculory order of a vice chancellor, for irregularity. The order appealed from was entered on the 28th of October, 1834, but was never served on the solicitor of the appellant; and he saw a copy of the order, for the first time, on the 8th of November.

This was an application on the part of S. Richardson, one of the defendants in this cause, to set aside the replication to his answer, for irregularity. The-complaiuant prosecuted her suit in forma pauperis against the defendant 8. Richardson, upon an (order in the usual form.

This was an application for the relaxation of costs. The defendant having appealed from an interlocutory order of a vice chancellor, such order was reversed with costs. The appellant claimed retaining fees for her solicitor and counsel on the appeal; and also an allowance for abbreviating the pleadings in the cause, and the schedules annexed.

The question in this case arose as to the regularity of the service of the replication to the defendants’ answer. The answer was served on the agent of the complainant’s solicitor, and was not excepted to. The replication was served more than fifty days after the service of the answer, but within sixty days.

The bill in this cause was filed by the complainants as judgment creditors of E. Hoyt, after the return of an execution unsatisfied, in pari, to reach certain property in the hands of the defendants, his son and son-in-law, which, as was alleged in the bill, had been placed in their hands in fraud of the complainants’ rights as creditors; and which they sought to have applied in satisfaction of the balance due on their judgment.

This was an appeal from an order of the vice chancellor of the seventh circuit. The complainant was a judgment creditor of the defendant Townsend, and filed his bill in this cause to reach property which could not be levied on by execution ; which property the complainant alleged was fraudulently conveyed to Bonney, the other defendant.

On the second of July, 1834, the complainant’s bill in this cause was regularly dismissed, as to four of the defendants, with costs, for want of prosecution. An application was afterwards made to vacate the order dismissing the bill, upon excuse shown for the delay of the complainant.

The bill in this cause was filed against G. H. Hess and wife and twenty other defendants, and an injunction was issued thereon to stay the proceedings in an ejectment suit brought by all the defendants against the complainant. It appeared that a copy of the injunction was served on the defendant G. H. Hess, in November, 1884, and the subpoena was served upon him a short time afterwards. Some time after the service of the subpoena,'the defendants, upon an affidavit of G-.

This was an application for the retaxation of the defendants’ costs, which had been taxed by the vice chancellor before whom the suit was brought. The notice of the motion for a relaxation was not given within fifteen days after the taxation took place.

Trumbull Kent, one of the defendants in this suit, was appointed special guardian, under the act of March, 1815, for the sale of the real estate of the complainant, who was then an infant; and upon that appointment, the defendants Gr. Price and A. M, Kent became sureties for the faithful performance of his trust as such guardian.

This cause came before the court upon an exception to the report of a master, allowing the first exception to the joint and several answers of the defendants, for insufficiency. The question involved in the decision was the materiality of an allegation in the complainant’s bill, which, as he insisted, was not fully answered.

This was an appeal from a decree of the vice chancellor of the seventh circuit, dismissing the complainant’s bill with costs. The original bill was filed by William James, against the deendant, Bennett, in 1831, to restrain the commission of waste ■ ..pan 100 acres of land in lot No. 32, in Marceilus, of which ..00 acres James claimed to be the owner in fee.

This was an appeal from a decision of the vice chancellor of the fourth circuit, dissolving an injunction. The motion was founded upon bill and answer; but as the time for excepting to the answer of some of the defendants had been extended by a chamber order, the decision of the vice chancellor was put upon the want of equity in the complainants’ bill.

The original bill in this cause was filed in 1828, against Bishop Dubois, and Lynch, Lasala and Wilcox, trustees for the Catholic church in Ann street, in the city of New-York, and against H. Walton, and the Rev. J. Sellon of the Episcopal church, for the specific performance of an alleged agreernení made by Sellen, through ov by the trustees of “ Christ’s -church, in Ann street,” for the sale or exchange of a small •strip of land in rear of the church.

This was an appeal from a decision of the vice chancellor of the first circuit, denying an application made on the part of the committee of the person and estate of Ann Lynch, to obtain the custody of her person; and to prevent J. Kinsey, at whose house she was, from harboring her against the wishes of the committee.

This was an appeal from the decretal order of a vice chaneellor, dismissing a petition with costs.

This- was- an appeal from a decretal order, made in the late equity court of the third circuit. The case was noticed for hearing by the appellant only; and when it was reached in its order, upon the calendar, the respondent did not appear. The appellants’ comise,1 therefore asked for an order, reversing the decree appealed from, by default.

Tms case came before .the chancellor, on an appeal from a decretal order of a vice chancellor, overruling a demurrer to the complainant’s bill. The facts of the case as stated in the bill are fully stated in the following opinion of the vice chancellor, delivered at the time of making the decretal order, which was appealed from.

<p>Previous to the adoption of the revised statutes, Mary Reynolds, the.widow of B. Reynolds, deceased, who woe entitled to dower in his real estate,'and also to one eighth of the entire estate by purchase from one of the heirs, filed her bill fv.- a partition of the estate and for an assignment of her dower. And in April, 1829, upon the report of a master that the premises could be divided, a decree for partition of the estate and for the assignment of the dower of the complainant was made; and commissioners were appointed for that purpose. In December, 1829, and before any thing further was done in the suit, one of the defendants died intestate, leaving a widoff, who was delivered of a posthumous child a few months afterwar¿¡s. jn 1831, another of the defendants died hitestale, leaving a widow and one child. And shortly afterwards, Mary Reynolds, the sole complainant, died intestate, leaving the surviving defendants, the two children of the deceased defendants, and Polly Nolton, the wife of J. Nolton, her heirs at law. A bill of revivor and supplement was thereupon filed by H. N. Reynolds, one of the original defendants, and by Nolton and wife, against the other surviving defendants, and against the widows and children of the two that had died, to revive the suit; and to have a partition of the premises made, according to the rights of the parties as they then existed. Before the answers to this bill were put in, the commissioners appointed in the original suit reported that it was for the interest of all the parties that the premises should be sold, and that no partition thereof ought to be made. Upon this report, and upon the answers of the several defendants to the bill of revivor and supplement, the cause was submitted to the chancellor for an order of reference to a master to report as to general liens, preparatory to a decree for a sal© of the premises.</p>

The defendant in this case applied to set aside the order faking the bill as confessed, and all subsequent proceedings,, on an affidavit of merits. The defendant was a solicitor and counsellor of the court, but had resided out of the state for more than a year. The subpoena was served upon him personally, duritig a temporary visit to the state, but he had not appeared in the cause.

This case came before the chancellor upon appeal from an interlocutory order suppressing certain depositions, on the ground that they had been taken irregularly. Upon the application of the complainant’s solicitor, an order to close the proofs, which had been regularly obtained by the adverse party, was opened, upon the payment of costs; and the time for taking the proofs was extended to the 15th of June, 1834.

This was an application to dismiss an appeal from the sentence and decree of the surrogate of New-York. The affidavits on both sides, instead of being entitled in the appeal cause in this court, were entitled, “ In the matter of the final accounting of Charlotte Gardner, adm’x, with the will annexed, of James Gardner, deceasedas the papers were .entitled in the procedings before the surrogate.

This was an appeal from a decree of the vice chancellor of the first circuit. George Lorillard, of the city of New-York, died in September, 1833, a bachellor, possessed of a large real and personal property, worth about three millions of dollars; most of which was in real estate in the city of New-York, and the annual income of his property at the time of his death was from eighty to one hundred thousand dollars.

The bill in this cause was filed to compel the specific performance of a contract to purchase land of the complainant, by the defendant Haff, and to compel the latter to apply $550 on the contract; which sum, it was alleged, had been advanced by Haff to the defendant Lyon, on account of such ■contract, although Lyon had given a note, or ¡accountable receipt therefor.

A commission of lunacy was issued in this matter, upon the petition of a son of P. Christie, the alleged lunatic. And by the inquisition, the jury found thatP. Christie had been of unsound mind for four years ; which finding overreached a conveyance of his farm, given by him to his son in law, S. Dobbin. On the part of the petitioner an application was made for the appointment of a committee.

This was an application to remove a guardian of the infants, who had been appointed by the vice chancellor of the third circuit.

This was an appeal from a decretal order of the vice chancellar of the seventh circuit The object of the complainant’s bill was to obtain a discovery for the purpose of aiding him in Ms defence to a suit in the supreme court, upon a $¡50 note.

This was an application to dissolve an injunction which restrained the defendants from proceeding to collect a judgment recovered in the supreme court. W. Woods, one of the present defendants, had been a copartner with A. Bishop and H. Sulkley, and afterwards purchased out their interest, and took an assignment of all the partnership property and effects, and. agreed to pay all the debts of the firm.

The bill in this cause was founded upon a written agreement in the French language, a translation of which was set out at length, in the complainant’s bill. The defendant Goris and the complainant were the only parties to this agreement, and it was sought to charge the other defendants through that agreement.

This was an appeal from an order of a vice chancellor,overruling the demurrers of the appellants to the complainants9 bill. The defendant, Genung, and Parley Russell were partners, and were indebted to the complainants for goods.

This case came before the court on exceptions to a master’s report, upon exceptions to the answer of the defendants for impertinence. Twenty-two exceptions were taken to the answer, and the master decided that all, except the 1st, 11th,. 12th and 22d, were well taken ; and the defendants excepted to the master’s report, as to the allowance of each of the other eighteen.

This was an appeal, by the complain ants, from an order of ¿he vice chancellor of the first circuit, overruling exceptions to a master’s report, on a reference of certain parts of the affidavits read by the complainants in opposition to a motion; which parts of the affidavits were alleged to be impertinent and scandalous.

This was an appeal from an order of the vice chancellor of the first circuit, overruling a demurrer to the complainant’s bilí.

The defendants in this cause were the personal representatives of S. Craig, deceased, who, in his lifetime, recovered a judgment against the complainant, m the supreme court. The defendants having brought a scire facias to revive the judgment, and to enable them to have execution thereon, the present bill was filed, and an injunction was granted, without deposit or security, restraining the defendants from proceeding upon the scire facias.

This was an appeal from a decree of the vice chancellor of the first circuit. The facts of the case, as they appeared from the hill and answer, were as follows : In February, 1831, the complainants insured the defendant Storrow upon a box of specie, laden on board the Charles Carroll, from New-York to Havre; for which specie a bill of lading in the usual form had been signed by the master of the vessel.

The bill in the first of the above causes was filed against She executors of Amos Coffin, deceased, and the Washington Insurance Company, to obtain payment of a judgment debt, out of the amount due upon a policy of insurance upon the goods of A. Coffin; which goods were destroyed by fire, after the complainants’ execution had been levied thereon.

The facts in this case, as they appeared from the pleadings and documentary evidence, were- as follows : In July,. 1824, W. G. Hooker and D. James, as the guardians of the-minor heirs of L.- Case, deceased, and by virtue of a supposed authority derived from an order of the supreme court of Vermont, executed to the defendant, Delavan, a conveyance of all the right and title of such minor heirs to certain premises-in Middlebury.

This was an application for the appointment of a receiver in a suit originally commenced before the vice chancellor of the fifth circuit. The cause was heard upon the merits before the late vice chancellor of that circuit; who declined making a. final decree in favor of either party, but awarded a feigned issue. From this order both parties appealed to the chancellor ; each insisting that a final decree should have been made in his favor, without an issue.

<p>Where a solicitor commenced a suit in chancery for the recovery of a demand due to the complainant, and the counsel employed by such solicitor after» wards compromised the suit, and received from the defendant $287,45, besides costs, and paid the same over to the solicitor, except $50, which was left in the hands of the counsel, to be.paid to the complainant, provided he would receive it in full of his demand, and the solicitor afterwards refused to account to the complainant, or to pay him more than the $50 ; Held, that the counsel was not liablp to the complainant for the money, which had been paid over to the solicitor before he had notice of the complainant’s claim for the whole amount But the counsel was held to be personally liable for the ,$50, which he paid over to the solicitor, after he had beers' served with a notice of an application to the court, to compel him and the solicitor to pay over the money received from the defendant upon the compromise of the suit.</p> <p>Where a, solicitor collects money for his client, which he refuses to pay over, the court will enforce the payment of the money by a commitment for a contempt; and if he persists in his disobedience to the order of the court, the chancellor may order him to bo stricken from the roll of solicitors.</p> <p>It is illegal for a solicitor to contract with his client for a part of the demand in litigation, in addition to his legal costs and expenses in the suit, if he succeeds in the litigation; and such agreements, as they tend to champerty and maintenance, will not be sanctioned'by the court.</p>

<p>Where the decedent, at the time of her death, left no relatives in the direct •line of ascent or descent, and her nearest collateral relations were an aunt of the half blood of the decedent’s father, and another aunt of the full blood, on the side of the mother; Held, that the two aunts were entitled to share equally in the distribution of the decedent’s personal estate.</p> <p>3n successions to personal estates, relatives of the half blood, in equal degrees of cognation to the intestate, take equally with relatives of the whole blood; and they also take by representation, where representation would be allowed among relatives of the whole blood.</p> <p>Where one of the next of kin cites the administrator to account before the surrogate, for the purpose of obtaining his share of the estate, the administrator must cause the other distributees to be cited, if he wishes a final settlement and distribution of the whole estate.</p> <p>Yo authorize the surrogate, upon the settlement and distribution of the estate in the hands of an administrator, to retain a portion of the estate for the payment of outstanding claims, there must be a representation and proof, on the part of the administrator, that such claims probably exist against the estate.</p>

The original bill in this cause was filed in September, 1883, ¡by Gideon Hawley and James King, two of the executors and trustees of William James, deceased, against Augustus James, their co-executor and trustee, Catharine James the widow, 3,11 d the children and grand-children of the testator, and against the other nersons who had either rested or contingent Interests under his will; for the purpose of settling the construction of such will, and to have the trusts thereof…

This was an application by the committee of a lunatic i& stay the. proceedings in certain suits commenced against the lunatic, after he had been found to be of unsound mind, upon a regular inquisition, under a commission issued out of the court of chancery.

<p>This was an appeal from a decretal order of the vice chaneellor of the seventh circuit. The object of the complainant’s bill was to stay the sale of his farm upon an execution, in favor of the defendant, as administratrix of D. Shepherd, de= ceased, against the person from whom the farm was purchased. The complainant purchased the farm of J. Parks, and took a conveyance thereof, on the 29th of January, I829a and shortly afterwards paid the consideration money therefor and took possession. In January, 1819, a few days over ten years before this conveyance, D„ Shepherd recovered a judgment against Parks, which became a lien upon the farm, and which judgment remained unsatisfied at the date of the deed to the complainant; and in 1832, the defendant, as the administratrix, revived the judgment and took out execution thereon, and was proceeding to collect the amount due, by a sale of the complainant’s farm, at the time of the commencement of this suit. In the bill, which was sworn to, the complainant alleged that he purchased the farm in good faith, with out any knowledge or notice of the existence of the Shepherd judgment. He therefore insisted that the judgment was no longer a lien on the farm. And he prayed that the farm might be adjudged and decreed to be free and discharged of and from the lien thereof; and that the defendant might be perpetúally enjoined from selling the farm under her execution. The answer of the defendant put in issue the allegation of the complainant, that he" purchased the farm in good faith and without notice of the existence of the judgment. And the proofs in the cause conclusively established the fact that the complainant not only was" informed of the existence of the judgment at the time of -his purchase, but that he also knew, at that time, that it was still due and unpaid. Upon the hearing of the cause before the vice chancellor, he dismissed the bill, with costs; from which decree the complainant appealed to the chancellor.</p>

<p>This was an appeal from a decretal order of a vice chancel-, lor, overruling the defendant’s demurrer on the record, and permitting the complainant to amend, after the allowance of a' demurrer ore tenus. The object of the suit was to obtain satisfaction of a judgment, recovered against the defendant Sickles and others, after the return of an execution unsatisfied. From the bill it appeared that the action at law was upon a' promissory note, drawn by William Moore and Alfred Moore, as copartners, and endorsed by Sickles, Smith and Fletcher, who were also copartners. The action was brought against the drawers and endorsers jointly, under the act of April, 1832; but A. Moore, one of the drawers, and B. Smith, one of the endorsers, were not served with process,. The judgment was in the usual form, against all the defendants. But upon the back of the execution there was an endorsement to the following effect; “ The process by which this action was commenced was not served on A. Moore, nor on B. Smith; therefore levy on the sole property of W. Moore, G. G. Sickles andT. G. Fletcher, and also on the personal property owned by W. Moore, as a partner with A. Moore, and also on the’ personal property of G. G. Sickles and T. G. Fletcher, owned1 by. them as copartners with, B. Smith.” The complainant,, after stating the return of the execution by the sheriff unsatisfied, and that the whole amount of the judgment still remained due, over and above all prior just claims of the defendant,by way of set off, or otherwise, and that the defendant Sickles had equitable interests, &c., to the value of $100 or more,. stated as a reason for not making W. Moore, A. Moore, B. Smith and T. G. Fletcher parties to the bill, that from the information he had received, and from the advice of his counsel thereon, be was fearful that if he 'made them parties he Would be compelled to pay them costs. The defendant demurred to the bill, for want of equity. And he also assigned as causes of demurrer,, that the other defendants in the judgment, and particularly the two who had been served' wlthprocess in the action at law, had not been made parties to-the suit in this court. The vice chancellor overruled the demurrer on the record. He sustained, however, certain objections as to the form of the bill, made ore lenus; but permitted the complainant to amendj without prejudice to the injunction.</p>

This was a bill filed by the wife for a divorce, on the ground of adultery, and the same was taken as confessed. The bill showed that the wife was sick and destitute of property, and that the defendant owned a farm, and was possessed of considerable personal estate.

This was an appeal from the taxation of the vice chancellor of the fifth circuit, of an examiner’s bill, against the solicitor of the defendants. The solicitor resisted the taxation of the whole bill as against him, on the ground that he was not answerable to the examiner for his fees. He also objected that if he was bound to pay the examiner’s fees for services performed for him as solicitor, he was not liable for the cross-examination of the complainants’ witnesses.

<p>This case came before the court upon a bill for the' partition of the real estate of Teunis T. Van Vechten, deceased,, and for a distribution of his personal estate and the settlement of the account of the surviving executor. The testator,. by his will, devised and bequeathed bis residuary estate, both real and personal, as follows: “ The one equal third part thereof to my son Teunis Van Vechten, his heirs and assigns; one-equal third part thereof to my son John Van Vechten, his heirs' and assigns; and the remaining third part to my beloved wife Elizabeth and my sons Teunis and John Van Veehten, and the-survivor and survivors of them, and their or his assigns, Intrust, nevertheless, that the rents; issues and profits, and the Use and enjoyment thereof, shall be applied and appropriated by the said trustees, or by the survivors or survivor of them;their or his assigns, to my daughter Judith, the wife of George Pearson, for and during her natural life, in such- manner as they, the said' trustees, or the survivors or survivor of them, their or his assigns, shall deem proper to secure the benefit theTeof to my said daughter, during her natural life, free from the control of her said husband'; and, upon this further trusty that, at the death of my said daughter, all the one third of my said real and personal estate so as aforesaid devised in trust for her benefit, and the rents, issues and profits thereof which remain unexpended, shall, by the said trustees, or the surviVors or survivor of them, their or his assigns, be applied to the use and benefit of the child or children of my said daughter, their heirs or assigns. But in case of the death of my said daughter, without leaving any child or children, or of the death of such child or children whithoui lawful issue, then the one third of the real and -personal estate so as aforesaid devised in trust, with the rents, issues and profits thereof which shall remain unexpended, shall vest in and be applied to the use, benefit and behoof of my aforesaid sons, their heirs and assigns, forever.” The questions which were presented for the consideration of the court, arose upon the devise in trust for the benefit of Judith Pearson and her children. The guardian ad litem of the infant heirs of John Van Vecbteti, one of the testator’s sons, insisting that the contingent limitation over of the ultimate remainder in the trust estate, to the sons, was valid ; and the only surviving child of Mrs. Pearson claiming the ultimate remainder in fee, on the death of the mother, as an absolute fee, and not a base or determinable estate or interest.</p>

This was an application for an injunction to restrain the defendants from selling the complainant’s farm, on an execution against T. M’Cantie.

This was an appeal from an order of the vice chancellor of the seventh circuit, allowing a demurrer to a bill of revivor and supplement. The original bill was filed to set aside a transfer of the complainant’s real estate, on the ground of fraud. The complainant died, leaving six children, his heirs at law, one of which children was the wife of a defendant in the original suit.

This was a bill for partition ; and the only question which arose was, whether the interests of the parties were such that a partition could now be made. The whole premises were leased to different persons for ten years, reserving rent; and the complainant was the owner of an undivided share of the rent and reversion.

This case came before the chancellor on an appeal brought by the district attorney of the U. States, from a decision of the vice chancellor of the first circuit. The United States having a lien upon the lands of which a partition was sought in this case, by consent of the district attorney the premises were sold, discharged of the lien, and a portion of the proceeds were deposited with the assistant register, subject to the equitable claims of the United States thereon.

This was an application by a judgment creditor of a cor» potation, under the thirty-sixth section.of the article of the revised statutes relative to proceedings against corporations in equity, (2 R. S. 463,) for a sequestration of the stock and effects of the corporation, and for an injunction and receiver,

This case came Before the court upon exceptions to a mas*ter’s report on exceptions to the complainants’ bill for impertinence. The bill was filed to restrain' the commission of waste, upon premises which had been leased to the defendí ant, by the complainants, for a short term of years..

This was an application for the retaxation of a bill of costs, which the defendants were directed to pay to the complainant’s solicitor. The costs were taxed in the city of New-York, where the solicitors for both parties resided, before the vice chancellor of the first circuit, upon a notice of one day only.

<p>Where the complainant died after the entry of an appeal from the decision of a vice chancellor, and after the causa was ready for a hearing on the appeal, but the fact of his death being unknown to the counsel, the cause was afterwards heard and decided by the chancellor upon the appeal; Held, that the decree upon the appeal might be entered nunc pro tune, as of a-day previous to the death of the complainant, and after the entering of the appeal.</p> <p>The appellate court ought not to proceed to the hearing of a cause upon appeal, after the fact of the death of ono of the parties is known, until the suit is revived, unless it is heard with the consent of those who have succeeded to the rights of the deceased party.</p>

This was an application to dismiss an appeal, from an interlocutor}' order of the vice chancellor of the fourth circuit, for irregularity.

This was an application to the chancellor, to discharge and cancel a mortgage given to the register of this court by Genet T. Lansing, as the general guardian of the person and estate of Thomas Dyer, an infant, appointed by the court of chancery in 1828, to secure the amount due from him as such guardian, upon payment of the balance due from him to the new guardian appointed by the surrogate.

This was an appeal from so much of an order of the vice chancellor of the first circuit, allowing the complainant to amend, as precluded him from waiving an answer on oath from the new parties; who, by the amendments, were to be made defendants in the suit.

This was an application by the defendant to compel S. and J. Kellogg and W. Osborn to refund a sum of money which bad been collected under the original decree in this cause, before it was reversed; and also to compel (hem to pay the costs which had been awarded to the defendant, against the complainant, on an appeal by the latter to the court for the correction of errors.

This was an application to set aside an attachment, which had been issued against the defendant, for not appearing. The appearance was entered with the register, at Albany, on the 7th of August, 1835; which was within twenty days after the return day of the subpoena. And a notice of the appearance was sent to the complainant’s solicitor, but through some mistake was not received.

This was an application, on the part of the complainant, for an order requiring the receiver appointed in this case, to pay, out of the fund in his hands, interest on the judgment for the satisfaction of which this suit was brought; and also the complainant’s reasonable counsel fees, which he had expended in the prosecution of the suit.

This was an appeal, by the complainants, from an interlocutory order of the vice chancellor of the first circuit, directing them to deposit certain partnership books and papers with a master, for the inspection of the defendants, before answer. The hill was filed by the complainants, as the assignees of J. Beacham, for an account and settlement of a partnership transaction between Beacham and H. Eckford, the defendants11 .testator.

<p>The complainant’s solicitor is not entitled to have taxed, against the adverse party, the expense of ascertaining the residences of the defendants, as a necessary disbursement of the solicitor in the cause.</p> <p>The only disbursements which are properly taxable against the adverse party, under the provision in the fee bill on that subject, are disbursements by the solicitor for postage; for exemplifications to be used in the suit; for necessary searches in the public offices; for the publication of notices, when required by law or the practice of the court; and other disbursements of the like nature.</p> <p>It is no part of the duty of the solicitor, as such, to be at the expense of ascertaining the residences of the parties, or any other facts of that nature, for the purpose of enabling him to commence and prosecute the suit. And if the client employs his solicitor to ascertain such facts for him, it is a proper allowance on taxation between solicitor and client, but not as between party and party.</p>

<p>A sentence of nullity, declaring a marriage invalid on the ground of the physical incapacity of the defendant cannot be pronounced, upon a bill taken as confessed for want of an appearance or answer, without examining the defendant on oath before the master to whom it is réferred to take the proofs of the facts and circumstances stated in the complainant’s bill.</p> <p>To authorize a sentence of nullity, the physical incapacity of the defendant must have existed at the time of the marriage, and must be incurable; and both these facts must be established by the most satisfactory evidence, although they are admitted by the defendant.</p> <p>The court of chancery will not decree a marriage void on the ground of the impotence of the defendant, until a surgical examination has been had for the purpose of ascertaining whether the alleged incapacity is incurable, if such defendant, is within the jurisdiction of the court.</p> <p>Upon a bill filed to annul a marriage on the ground of impotence, the court has the necessary power, and will compel the parties to submit to such a surgical or other examination as may be necessary to ascertain the facts necessary to a correct decision of the cause; but in a suit brought against a female, the court will not compel her to submit to a further examination, if it appears that she has been already sufficiently examined by competent surgeons, whose testimony can be obtained by the complainant, to show that her physical incapacity is incurable.</p>

The petition in this case stated that Maria Schuyler, who died in 1832, by her will, appointed J. Van Schoonhoven, T. M’Coun and A. Craig trustees of her estate, upon certain trusts therein specified, and that the two first accepted the trust; that Craig refused, and by a formal instrument in writing renounced the execution and acceptance of the trust.

This was an appeal from a decree of a vice chancellor. The bill, which was filed in 1827, in the equity court of the •eighth circuit, alleged that on the 10th of December, 1804, B. Van Norman gave to the complainants four promissory notes, of $150 each, payable on demand, with interest, and that on the 4th of April thereafter, to secure the payment of these notes, he mortgaged to the complainants a lot of land in Batavia, containing two acres, which mortgage, in 1807, was…

This was an appeal from a decree of the vice chancellor of the third circuit; and the only question in controversy between the parties was whether a legacy given to the complainant by the will of her father, was payable on the death of her mother, who survived the father about six years, or at the expiration of three years after the mother’s death.

This was an appeal from a decree of the vice chancellor of the first circuit. The bill was filed for an account and settlement of a special partnership transaction between the parties.

The bill in this cause was filed for the purpose of recovering certain property which, as was alleged, the defendant held in trust for the wife and children of the complainant DewalL and which had been given by the father of his wife for their support.

This suit was brought by a judgment creditor, for the-recovery of his debt, after the return of an execution unsatisfied.

The bill in this cause was filed for an account and distribution of the personal estate of Joseph Hunt, deceased, under his will; and to obtain the direction of the court as to the manner in which the share of a post-testamentary child of the testator should be apportioned between the specific, general, and residuary, legatees under the will.

This was an appeal from a decree of the vice chancellor of the first circuit. The facts, as they appeared from the bill and answer, were as follows : The defendant Isaacs, in September, 1833, being indebted to the complainant in the sum of $687,28, gave to him a negotiable note for that amount, payable four months after date; which note the complainant, soon after, endorsed and transferred to a third person, in the ordinary course of business.

The bilí in this cause was filed on behalf of three infant children, by their next friend, against J. B. Wood, their uncle, the executor of their father and their testamentary guardian, to obtain a decree declaring the trusts of the will void, or that the fund directed to be invested in the state of Ohio might be invested for their benefit in this state; and to prevent such testamentary guardian from removing the complainants out of the jurisdiction of this court to the…

The bill in this cause was filed to obtain satisfaction of a judgment in favor of the complainant, in the state of New-Jersey, against the Jersey Bank, and against D. Cooledge, Ferris Pell, Alfred S. Pell, R. Spencer, W. Lyon, S. Doughty and R. L. Stevens, as directors of that institution.

This was an appeal from a decretal order of the vice chancellor of the fifth circuit. The question arose upon the sale of mortgaged premises in a foreclosure suit; and notice had been given by the mortgagor of an application for a resale. That application had not been finally disposed of when the decretal order, from which this appeal was taken, was entered, but it was ultimately refused.

The information by the attorney general, in the first of th© above causes, was filed to foreclose two mortgages given to the state, by John Purmort and wife, in September, 1813; but both for the same debt and upon the same premises, the last being given to correct a mistake in the description of the premises in the first. The mortgages were given by Purmort for the security of a loan of $1000 from the state.

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

Walter Evertson, the father of the complainants, died in April, 1812, seized and possessed of real and personal estate to the value of $20,000. In November, 1810, he made his will, and appointed his wife and his father-in-law, together with his brother, George B. Evertson, his executors.

The complainant, who was a jeweller residing in the city of New-York, in the spring of 1839, gave to Davis, Babbitt & €o., of Providence, three negotiable promissory notes, amounting together to the sum of $700,34, payable at different times, the last of which notes became due on the 28th of March, 1830. Previous to the time when any of the notes became payable, the complainant stopped payment.