Volume 6 — Paige's Chancery Reports

This was a bill to foreclose a mortgage, and the complainant’s solicitor had set out, in his affidavit of regularity, all the proceedings at length, to take the bill as confessed.

This was an appeal from a decree of a vice chancellor, directing the payment of a sum of money by the appellants to the respondents; and upon the hearing of the appeal before the chancellor, the decree of the vice chancellor was affirmed, with costs. The respondents’ counsel thereupon asked for damages for the injury he had sustained by reason of the appeal,

<p>Upon the execution of a commission in the nature of a writ de lunático itiquirendo, it is the duty of the sheriff to select and summon the jurors; and it is improper and irregular for the commissioners to dictate to him what persons are to be summoned.</p>

This was an appeal from a sentence or decree of the surrogate of the city and county of New-York, upon the final settlement of the account of the appellant, as the administrator of the estate of George Youle, deceased.

This case came before the court upon an application to dissolve an injunction.

The bill in this cause was filed against the personal representatives of Henry Eckford, deceased, and against James E. Dekay, one of the representatives, in his individual capacity, and against the receivers of the Life and Fire Insurance Company of the city of New-York.

This case came before the chancellor upon an appeal, by the defendant, from an order of the vice chancellor of the first circuit, for the appointment of a receiver upon a creditor’s bill. Upon the hearing of the motion before the vice chancellor, the defendant made an affidavit that he had not $100 in property over and above prior just claims thereon.

This was an appeal from a decision of a vice chancellor, refusing to appoint a receiver of the property and effects of the defendant in' a creditor’s suit. The complainants and the defendant were the joint sureties of S. M. Smith, in a bond to the supervisors of Monroe county, for the faithful discharge of the duties of his office as county treasurer. Smith died insolvent, and a judgment was afterwards recovered against all the sureties jointly, for about S5000.

This was an appeal from a decree of the vice chancellor yle c}rcu}t. The bill was filed to foreclose a mortgage given by Peter Knapp and wife, in November, 3810, upon about 300 acres of land in lot No. 42, in the township of Tully, to secure the payment of $1000 and interest.

The complainant in this cause being a non-resident, the defendant’s counsel, upon due notice of the application, obtained an order that all proceedings on the part of the complainant be stayed until security for costs was given. On the same day upon which the order was made, but before notice thereof had been given, the complainant’s solicitor gave notice of an application, at a future day, for the appointment of a receiver.

This was an appeal from an order of the vice chancellor of the first circuit. The bill was filed by George Bowen, in behalf of himself and wife, and as the next friend of Mary Ann Idley an infant, to set aside a will made by the father of the infant, and to establish a previous will which the complainants alleged had been fraudulently destroyed.

This was an appeal from a decree of the vice chancellor of the fourth circuit. The complainant’s bill was filed for the purpose of foreclosing two mortgages, given by The Steam Saw Mill Association to the complainant; and certain judgment creditors, and other subsequent incumbrancers upon the mortgaged premises, were made defendants. The bill was taken as confessed against all the defendants except the corporation.

This case came before the chancellor upon appeal. The facts upon which the decison was founded will appear by an examination of the report of a previous suit at law, and the report of this case before the vice chancellor. (See 5 Cowen’s Rep. 67; 8 Idem, 406 ; and 1 Edward’s Chancery Rep. 327.)

This was an appeal from a decretal order of the vice chancellor of the third circuit. The defendant, C. A. Ten Eyck, was sheriff of the county of Albany, during the years 1826, 1827 and 1828, and the complainant was his under sheriff and jailer. The complainant, during the three years, purchased the fuel, lights, provisions and supplies for the jail, hired turnkeys, cooked the food of the prisoners and caused the jail to be cleansed, &c. at his own expense.

Tras was an appeal from a decision of the vice chancellor of the fourth circuit, refusing to suppress the deposition of D. Woods, as a witness for the complainant.

This was an application by the defendant, M. Artcher, for the dissolution of an injunction.

This case came before the chancellor upon an appeal by the complainants, and upon a cross appeal by J. J. Rosevelt, one of the defendants, from a decree of the vice chancellor of the first circuit.

This was an appeal from a decree of the surrogate of the county of Oneida. The appellants were the executors of Jedediah Sanger, deceased, who was the surviving executor of David Demming, who died in 1809.

This was a petition of the receivers of the Globe Insurance Company, appointed under the act of the 18th of January, 1836, for the more convenient adjustment of the affairs of certain insurance companies in the city of New-York, rendered insolvent by the late fire in that city, for the order and direction of the court relative to the discharge of their duties. All the facts necessary to a correct understanding of the decision are fully stated in the opinion of the court.

The bill in this cause was filed for the purpose of obtaining a judicial construction of a clause in the will of the complainant’s father, by which he gave to the complainant land to the value of $1500, to be taken at the appraisal of men, ont of such of the testator’s lands as the devisee should select, except two farms devised to -the testator’s then wife, and to one of his other sons.

This was an appeal from the decision of the vice chancellor of the eighth circuit, refusing to dissolve an injunction issued upon a creditor’s bill.

The object of the complainant’s bill in this cause was to compel the specific performance of a contract, by the defendant, for the… Held: that at no time thereafter, under any pretence whatever, nor by any device, should the complainant, either by herself or in conjunction with others, have the power or authority of exonerating, releasing, or discharging the property from the operation of the deed of settlement, or of receiving or enjoying any part or portion thereof,…

This case came before the chancellor upon appeal. Oliver Wolcott, the original complainant, was the owner of a house and lot .in the city of New-York, a part of which was in the occupation of the defendant, G. Sullivan, in January, 1828.

This was an appeal from a decision of the vice chancellor of the first circuit, overruling exceptions to a master’s report upon exceptions to the defendants’ answer for insufficiency.

This case came before the chancellor upon an appeal by the defendants from two separate decisions and orders of the vice chancellor of the fourth circuit, The complainant filed his bill as a judgment creditor of D« Simmons, one of the defendants, to obtain satisfaction of his debts out of the equitable interests, choses in action or other property of Simmons which he had not been able to reach by execution at law, and particularly the interest of Simmons in an axe…

This was an application to dissolve an injunction restraining a purpresture, or an unauthorized appropriation of the embankment and waters of the Erie and Champlain canals near their junction at the Cohoes.

This was áñ application for' a further allowance to the mother of the infants out of the estate of their father, for their maintenance, beyond the amount allowed for that purpose by his will.

This was an appeal from a decree of the vice chancellor of the third circuit. The complainants were the holders and owners of a promissory note against the defendant and others, who were copartners under the name or firm of Bradley, Nichols & Co. The note was made payable to Douglass & Dunn, and was endorsed by them; and not being paid when it fell due, they were regularly charged as the endorsers thereof.

This was an application by the defendant to set aside an order, entered by the complainant, to produce witnesses. The answer was put in on the 15th of June, and the replication was served at the office of the defendant’s solicitor on the 15th of July. The counsel for the defendant insisted that the replication was not served in time ; and that the order to produce witnesses was, therefore, irregular, as the cause was in readiness for hearing upon bill and answer.

This was an appeal from a decision of the vice chancellor of the seventh circuit. In June, 1827, Franchot and Van Rensselaer, being the owners of lot No. 77 in Lysander, entered into a written contract with R. House, the father of the defendant and of the complainant Maria Clapper, to sell the lot to him for $3200, about $700 of which was paid down, and the residue was payable in one and two years with annual interest.

This was an appeal from the decision of the vice chancellor of the fourth circuit. The defendant, Joel Lee, Was appointed by the supreme court, guardian ad litem of the complainant Mary Ann Richie, now the wife of the complainant Truman Cook, in a partition suit in that court.

This case came before the chancellor upon cross applications for a retaxation of the defendants’ costs. A writ of ne exeat was allowed upon the filing of the bill, and the guardian ad litem of one of the defendants, who was an infant, was also the solicitor for the other defendant. The writ of ne exeat was afterwards discharged, with costs, before answer ; and the complainants were permitted to discontinue their suit without prejudice to their right to file a new bill.

This was an appeal from the sentence or decree of the surrogate of the county of Westchester, upon the final settlement of the account of an executor. Upon the return of the citation to account, the respondent, N. Purdy, jun., brought in his account with the estate, and therein credited himself with the sum of $219,27, as and for a debt due to him from the testator, for monies lent and services rendered to the testator in his life time.

This was an application for the re-taxation of a bill of costs, payable under an interlocutory order of the court. The suit was commenced for the purpose of making partition of certain real estate which the complainant claimed to hold, jointly with the defendants, as one of the heirs at law of his father; and three of the defendants who resided out of the state were proceeded against as absentees.

This was a suit to annul a marriage on account of the alleged impotence of the defendant. The bill having been taken as confessed, it was referred to a master to take proof of the allegations in the complainant’s bill, and examined the defendant on oath in relation thereto* and to inquire and report whether, at the time of the solemnization of the marriage, the defendant Was and still continued to be physically incompetent, by reason of incurable impotence.

The bill in this cause was filed to foreclose a mortgage, given by D. Baxter one of the defendants, and to set aside a release of the equity of redemption as to a part of the mortgaged premises, on the ground that such release had been fraudulently obtained from the complainant; and J. Baxter, a subsequent grantee of the premises, and several judgment creditors of the mortgagor were made defendants.

This was an application to dissolve an injunction, which had the effect of preventing the defendants from applying to the supreme court for an order to compel the complainant to pay over monies which he had received or collected as an attorney of that court.

This was an application for a commission to take proof of an instrument executed in Scotland, in 1835, propounded as the last will and testament of William Easton, deceased. The petition was presented by a sister of the decedent, residing in the state of New-Jersey, in whose favor a beneficial provision was made by the instrument propounded as a will; in which petition her husband also joined.

These cases came before the chancellor upon an appeal from a decree of the vice chancellor of the first circuit. The facts in the case sufficiently appear from the following opinion which was delivered by the vice chancellor at the time of making the decree appealed from.

The petitioner, together with two other persons now deceased, were appointed by a former chancellor assignees of the Commercial Insurance Company of New-York, under the provisions of the act of April, 1814, respecting incorporporated insurance companies in cases of their insolvency.

The complainant filed his bill in this cause for a divorce on the ground of adultery. The case was heard upon the bill taken as confessed against the defendant, and upon the master’s report.

The receivers of the property and effects of the Bank of Niagara, an insolvent corporation, were directed by an order of the chancellor, to pass their accounts before the vice chancellor or the taxing master of the eighth circuit, preparatory to a final distribution of the funds of the corporation among its creditors.

This was an appeal from a decision of the vice chancellor of the first circuit upon an application for instructions to the receivers of the American Fire Insurance Company of the city of New-York to allow the appellants’ set off.

The complainant in this Cause' was the purchase? of certain real estate in the city of Albany, under a judgment and execution against Stewart Lewis. And the object of this suit was to set aside several conveyances given on sales under pri- or judgments and executions, which the complainant alleged to be fraudulent as against him. The cause was heard upon pleadings and proofs, before the late vice chancellor of the fourth circuit.

Jacob New, upon a commission issued out of this court, was found to be incapable of managing his own affairs by reason of habitual drunkenness, and a committee of his person and estate was appointed. The complainant after-wards filed his bill in this suit, against the drunkard and his committee, for the specific performance of a contract alleged to have been made by the drunkard previous to the issuing of the commission.

The bill in this cause was- filed by the complainants against the corporation of Union College, and against Eliphalet Nott, who is president of the faculty of the college and-also- a member of the board of trustees, in relation to various transactions- between the complainants, or some of them, and. the trustees of the college, and with Dr. Nott, relative to the-lotteries in which Yates and McIntyre'and-the college were interested.

This was an application to appoint a receiver of the| property and effects of the defendant, upon a creditor’s bill founded upon a decree of this court, after an execution had been issued upon such decree and the sheriff had returned such execution unsatisfied.

This was an appeal from an order of the vice chancellor of the first circuit discharging a ne exeat.

This was an appeal from the vice chancellor of the first circuit, refusing to grant an injunction.

This was an appeal from a decision of the vice-chancellor of the eighth circuit, refusing an injunction to stay the proceedings of the corporation of the city of Rochester in levelling, grading, and macadamizing Monroe street in front of the complainant’s dwelling house and premises.

This was an appeal from a decision of the vice chancellor of the eighth circuit. The complainant having recovered a judgment in the supreme court against the defendant James Moreland, issued an execution thereon to the sheriff of Ontario county, where the defendant then resided ; which execution was returned unsatisfied.

<p>The bill in this cause was filed by the executors of Jacob G. Vandenburgh, deceased, to obtain a construction of his will, and the direction of the court as to.the distribution of his estate among the several persons having claims upon the same, under the following circumstances: In January, 1825, G, Vandenburgh, the father of the decedent, and one of the defendants in this cause, being possessed of a considerable real and personal estate, made his will and thereby devised all his real and personal estate to his wife for life; and, after her death, he devised the real estate, and the personal property not specifically bequeathed, to his son, the decedent ifi fee, charged with the payment of the following legacies within six years añer the death of the testator, to wit: $100 to his daughter Sally, the wife of J. Van Valkenburgh; $100 to-the children of his daughter Susan, wife of G. Vanderwerken; $200 to his daughter Catherine; $100 to his daughter Catalina, the wife, of L. Ryersdorf; $100 to his daughter Getty, the wife of P. Ryersdorf. At the time of the making of this will G. Vandenburgh the testator and his son Jacob G. the decedent, entered into a written agreement, under their lands and seals, referring to the will and its several provisions, by which it was agreed that the decedent should go into immediate possession of the property thus devised and bequeathed, to him, and use and enjoy the same, upon the condition that he should support his father and mother during their natural lives, and support his sister Catherine while she remained unmarried. And the father, on his part, agreed that he would not alter or revoke his will without the approbation of the decedent. Under this agreement the latter entered into the possession of the property and supported his parents and his unmarried sister until his death in 1828 ; and his mother died in 1829, leaving the father and sister Catherine surviving. Jacob G. Vandenburgh, by his will, after providing for the payment of his debts and a few specific legacies of small amount, directed his executors to sell his real and personal estate at such times as they and his father should deem best, and after paying debts and funeral expenses, to put the money at interest, and to pay the interest thereof to his parents annually, or as they should want the same during their lives, excepting the interest of $500, which was to be paid to his sister Catalina, for the education of her son Jacob Ryersdorf, and in case the interest should be insufficient for that purpose the executors were to make advances from the principal of the $500 from time to time as should be necessary, and to pay to him what remained of that sum when he arrived at the age of 21. He also directed the executors to pay the several legacies bequeathed in the will of his father, and to support his father> mo^ler an¿ sister Catherine, according to his agreement; and he directed, that uponthedeath of his parents his estate,after reserving $500, which he directed tobe paid to Jacob Rydersdorf his nephew, after the death of the testator’s parents and when he became of age, should be divided into six equal parts, and one part thereof should be given to the. children of his brother William, one part to the children of his sister Susan, and the other four parts to his sisters Sarah, Catalina, Catherine and Gertrude ; and that if his sister Catherine would not accept the said share in lieu of her maintenance by the agreement* the same should be retained by the executors and applied to her support; and that Negro Tom should be maintained out of the testator’s property during life'. Soon after the death of the son, the defendant Gilbert Vandenburgh, in order to facilitate the trusts contained in the will of the decedent, released to his executprs the property mentioned in the will and agreement of the father, in trust to sell and dispose of the same according to the will of the decedent. The bill alleged that the annual interest arising from the estate of the decedent, invested according to the directions of his will was insufficient, for the support of the father and his sister who remained unmarried, and the negro Tom; and that L. Ryersdorf, as the guardian of Jacob Ryersdorf the nephew, claimed a preference in payment of the annual interest of the $500 for his education, and also of another legacy of $500 in addition thereto; and that the other defendants who were interested in the estate of the decedent denied and resisted such claims ; that G. Heath, one of the defendants, set up a claim against the estate as a creditor, but that nothing was due to him, and that his demand, as they believed, was also barred by lapse of time. The complainants, therefore, prayed among other things, that the rights of the several defendants in the estate of the decedent might be established by the decree of this court, and the necessaiy directions given for carrying the trusts of the will into effect.</p> <p>The several defendants who were infants answered by their guardians. L. Ryersdorf and wife put in an answer by which they admitted the principal facts stated in the bill, but denied the correctness of the inventory made by the complainants and of the statements in the bill as to the extent of the property of the decedent. The other defendants suffered the bill to be taken as confessed.</p>

This case came before the court upon exceptions to a master’s report, upon exceptions to the defendant’s answer for impertinence. The bill was filed to obtain partition of lands in which the legal estate was in the parties in equal proportions, as tenants in common of a reversion in fee after the death of their mother, who died a short time previous to the filing of the bill.

This was an appeal from the decision of a vice chancellor, denying the motion of the defendant to dissolve an injunction. The bill was filed to stay the preceedings in a suit at law after judgment, and an answer on oath from the defendant was waived; but there were no affidavits annexed to the bill, verifying the allegations therein, except the usual affidavit of the complainants themselves. The answer fully denied the whole equity of the bill.

This was an appeal from a decree of the surrogate of Kings county upon the settlement of the accounts of the respondents as the executors of Stephen B. Williamson. The testator died in November 1828, possessed of a large real and personal estate.

The bill in this cause was filed for the partition of real estate and for an account and payment of the complainant’s share of the rents and profits.

<p>Where a person who had contracted for the purchase of land, obtained a deed of the same, from the vendor, under an agreement that it should not be used until the balance of the purchase money then due was paid; Held, that this was a valid delivery of the deed to pass the legal title to the land to the vendee, subject to the vendor’s equitable lien for the unpaid purchase money; and that such unpaid purchase money must be paid in preference to a judgment against the vendee, which was a lien upon his estate in the land.</p> <p>And the vendor having again sold and conveyed the land and taken a bond and mortgage on such second sale, for a much larger amount than was due to him for the unpaid purchase money on the first sale, which mortgage and conveyance were recorded before the recording of the deed to the ■original purchaser, and the bond and mortgage were afterwards assigned to a person who was informed of the facts upon which the equitable rights of the parties depended; it was also held, that the assignee of the mortgage was only entitled to preference in payment out of the proceeds of the ' land over the judgment creditor of the original vendee, to the extent of the unpaid purchase money on the first sale with interest thereon.</p> <p>A deed of land, or other sealed instrument, cannot be delivered to the grantee or obligee himself as an escrow, to take effect upon the performance of a condition which is not expressed in the deed or instrument; and if so delivered the deed or instrument becomes absolute at law.</p>

This was an appeal from so much of the decree of the vice chancellor of the third circuit as related to the general costs of the cause. In 1829 the complainant, an old man of eighty years of age, a neighbor of the defendant, left with him several bonds and mortgages and other securities, for safe keeping merely, and to receive payments thereon when the same were voluntarily offered, and to retain the monies until called for.

This was an appeal from a decree of the vice chancellor of the fourth circuit. In July, 1801, John Tibbitts vyas the owner of 9600 acres of land in the town of Lisbon, in that part of the county of Oneida which is now the County of St. Lawrence. On the 9th of November, 1810, he deeded to Wesson Briggs, whose first'wife was a daughter of Tibbits, lot No. 3 of the subdivisions of that tract, containing 1000 acres, with covenants of seizin and warranty.

This was an application to, dissolve an injunction, and for costs, upon the coming in of the defendant’s answer to a bill of discovery in aid of a defence at law. The defendant had sued the complainants as executors, upon a note given bytheir testator,whichnote the bill charged to have been given without consideration.

<p>Where the president of a bank had hypothecated his private stock to secure the re-payment of a loan to himself, and for the purpose of redeeming the same took from the funds of the bank of which he was president a sum of money, without authority of the board of directors, which he offered to the mortgagee of the stock in' payment of the debt; Held, that the taking of the funds of the bank for such a purpose was a fraud upon the bank, and that the mortgagee of the stock acted correctly in refusing to receive the money, thus embezzled by the president of the bank, in the redemption of the stock.</p> <p>"Where a president" or other officer of a monied corporation, who has the custody of its funds, appropriates the same to pay his own debts, or for other private purposes, without authority of the directors of the corporation, it is a criminal embezzlement of the fund entrusted to his care; and his creditor who receives the money iii payment of his debt, knowing it fo be thus embezzled, is á participator in the fraud and felony, and may be coiri« pelled to refund the money thus received.</p> <p>A stockholder who has given another a proxy to vote upon his stock, even for a valuable consideration, is justifiable in revoking the proxy where it is about to be used for a fraudulent purpose.’</p>

The bill in this case was filed to foreclose two mortgages % the first given by Henry Bush to secure the payment of $3000, and interest; and the last given by O. N. Bush as a collateral security for the payment of the amount secured by the first mortgage.

Tins was an appeal from a decree of the vice chancellor of the first circuit. The object of the complainants’ bill was to restrain the defendant from perfecting a legal title to certain real estate in the county of Franklin.

Tins was appeal from a decision of the vice chancellor of the first circuit. At the time of filing the bill in this cause William Stevenson, one of the defendants, was an infant and put in a general answer by his guardian ad litem. After he arrived at the age of twenty-one, upon an affidavit that a special answer would be necessary to protect his rights, he applied to the court for leave to put in a new or further answer or defence to the suit.

This was an appeal from a decretal order of the vice chancellor of the second circuit, relative to the surplus proceeds of mortgaged premises sold under a decree in this cause. The mortgaged premises, with other real estate, belonged to John Cornell, who died in February, 1817, intestate ; upon which event, one fifth of his real property and a portion of his personal estate passed to the legitimate children of his daughter Sarah Montfort, then deceased.

This was an application to dissolve an injunction upon bill and answer. The bill was filed against the husband of the complainant and two of his judgment creditors, to restrain the latter from selling the husband’s interest, as tenant by the curtesy initiate, in the real estate of the wife which belonged to her before her marriage; the husband being insolvent and worthless, and neglecting to provide for her and her children.

This case came before the court upon two appeals by the complainant upon orders considered as entered with the clerk of the first circuit; and also upon an application to dismiss both appeals under the following circumstances. The bill and notice of the order to answer were served on the 29th of December.

<p>A certificate of probable cause for appealing from an interlocutory order of a vice chancellor, when given by him for the purpose of staying the proceedings in conformity to the provisions of the 116th rule, is a mere chamber proceeding, like the approval of the sureties in an appeal bond, and cannot be vacated by the court below.</p> <p>The certificate of probable cause, upon an appeal from an interlocutory order of a vice chancellor, will not stay proceedings which would not be stayed upon a similar appeal from an interlocutory order of the chancellor. Such certificate, therefore, will not deprive the respondent of the right to apply for security for the debt, &c. as a condition of the further stay of proceedings. Neither will it have the effect to restore an injunction which is dissolved by the order appealed from, or suspend the operation of an injunction granted by such order.</p>

This case came before the chancellor upon an appeal from an order of the vice chancellor of the first circuit, overruling the demurrer of the defendant Manning to the complainants’ bill. The object of the bill was to restrain the defendants from proceeding in an ejectment suit, which they had commenced for the recovery of an undivided part of lot No. 27 Peck slip, in the city of New-York, and to quiet the complainants in their title to and possession of that lot.

The bill in this cause was filed against the children and heirs of John Ritchie, deceased, one of whom was an infant, to restrain the further prosecution of an ejectment suit brought by them against the complainant, to recover the possession of a village lot, at Saratoga Springs, under the following circumstances: The premises in question were a part of lot No. 12, in the 16th allotment of the Kayaderosseras patent.

This was an appeal from a decree of the vice chancellor of the third circuit. The complainant was the owner of a farm of 127 acres in the county of Albany, under a lease in fee from Stephen Van Rensselaer, at a nominal rent of one pound of wheat annually.

The firm of Archibald Gracie &. Sons having become embarrassed and being indebted to A. Hosack, the complainant’s testator, and to R. King, N. Rogers & Sons and several other creditors in a very large amount, Á.

The complainant, upofl due notice of the application',moved for a commission to examine witnesses residing out of the state. The motion was resisted upon the ground that the time limited by the 69th rule of the cóurt for applying to the register had not expired, and that the court had' no authority to grant a commission in' a case in which it might be issued by the register or clerk under the provisions of the statute.

Íhis was an application for the retaxátion of the defendant’s costs upon a bill of discovery. After thé defendant’s answer had been perfected he applied to the court for the usual order, for the dissolution of the injunction and for the payment of his costs in the suit. And the taxing officer allowed to the defendant fifteen dollars for brief, solicitor’s and counsel fees upon the motion.

This was an appeal from a decree of the vice chancellor of the second circuit. The complainant was the owner of a ten acre lot in the county of Dutchess, upon which there was a cloth dressing establishment and two or three small houses. He was also the owner of another lot of one acre, called the spring lot, adjoining the lands of the defendant, and separated from the ten acre lot by the Dutchess turnpike.

The bill in this cause was filed before the chancellor by judgment creditors of J. & R. Leslie, to reach certain property of the latter which had been assigned to the other defendants, Williams and M’Dougall; and a receiver was appointed to receive and hold the property in controversy pending the litigation.

This was an appeal from the vice chancellor of thé fifth circuit. In 1801, J. Cock and J. P. Crowder of London had a copartnership demand of about $2000 against ¡S. & H. Johnson of New-York, which they sent with other demands to Brown & Burnett their agents at New York for collection; and they afterwards sent them a general power of attorney to transact all their business in this country.

This was an appeal from a decree of the vice chancellor of the first circuit. The bill was filed to foreclose several mortgages given by Charles Gardner to J. Gardner; tod the only question in controversy between the parties was as to the interest upon the mortgages, which accrued previous to the death of Charles Gardner, the mortgagor. This question depended upon the construction of the will of J.Gardner, made in July, 1825.

The bill in this cause was filed to foreclose a mortgage given to the complainants by G. B. Evertson and his wife in 1824. A decree of foreclosure was entered, and a part of the mortgaged premises lying in the county of Delaware in the southern district of New-York, and in the towns of Galen and Ulysses in the northern district, were sold under the decree.

Tras was an appeal from an order of the vice chancellor of the first circuit, refusing to set aside an injunction for irregularity. The object of the bill was to restrain the defendants from proceeding in a suit at law commenced in the name of Drake upon a note obtained by the complainant by fraud and false pretences; and to have the note delivered up and cancelled.

After the making of the decretal order in this case, as reported in 5 Paige’s Rep. 125, the defendants L. Merritt and J. G. Dyckman appealed to the court for the correction of errors, where the decree of the chancellor was affirmed. The defendants afterwards applied to the chancellor, upon hew affidavits, to alter or modify that part of the decretal order which directed the note in question to be delivered up' and cancelled,

This was an appeal from a decree of the vice chancellor of the second circuit. The bill was filed for the foreclosure of a mortgage upon the land of the defendant John R. Murray, executed by him and his wife to the complainant in January, 1834, conditioned for the payment of #1200 and interest. This mortgage was given to secure the complainant for certain endorsements for J. R. Murray & J_)„ Dickey, which the complainant was compelled to pay.

The object of the bill in this cause was to restrain the defendant L. Keyes, the widow of Parley Keyes deceased, from prosecuting numerous ejectment suits against the grantees of her late husband; and to compel her to take an assignment of her whole dower out of the estate of which he died seized. Her husband had in his life time conveyed divers village lots and other portions of his estate with warranty; in which conveyances the wife had not joined.

This was an appeal from a decree of the vice chancellor of the first circuit; and the only question was whether the agreement mentioned in the bill constituted a- mortgage or a conditional sale. The facts appear from the report of the case before the vice chancellor, (2 Edw. Ch. Rep. 138.)

The bill in this cause was filed before the vice chancellor of the first circuit against The American Fire Insurance Company of the city of New-York, which was rendered insolvent by the great fire of December, 1835, and against the receivers of the company appointed under the act of the 18th of January, 1836, (3 R. S. 2d ed. 394,) to obtain a preference in payment out of the property and effects of the corporation in the hands of the receivers.

Tins was an appeal from a decree of the vice chancellor of the first circuit dismissing the complainant’s bill. Previous to the great fire in New-York, by which the American Fire Insurance Company lost its whole capital and was rendered insolvent, the complainant loaned to the company, for the purpose of paying a loss which had occurred, $2000, which amount the company agreed to repay to the complainant with interest, on demand.

A writ of ne exeat was issued in this case against H. M. F. Smith, one of the defendants, in which the sheriff was directed to hold him to bail in the sum of $1,000 ; upon which writ the sheriff returned that he had executed the same by taking bail from the defendant as therein commanded, and that such bail were J. M. Bull and J. Simpson.

<p>There is no law and no rule of the court of chancery rendering it absolutely necessary that the title of the cause should be inserted in the master’s notice of sale under a decree; but it is proper that such title should be briefly stated in the notice for the purpose of attrafcting the notice of parties who may be interested in the premises.</p>

The bill in this cause was filed for partition, The prem-? ises of which partition was sought originally belonged to the complainant and Catharine Van Wyck and two others, in-equal proportions.

These cases came before the court upon the petitions of the bank commissioners for injunctions, and for the appointment of receivers of the property and effects of the defendants, under the provisions of the 18th section of the safety fund act and of the article of the revised statutes relative to proceedings against corporations in equity.

This was an appeal from a decision of the vice chancelior of the first circuit setting aside the complainant’s proceedings to take the bill as confessed, for irregularity. Five exceptions having been filed to the answer of the defendants, they submitted to the same and put in a further answer. The complainant’s solicitor deeming the further answer insufficient as to four of the exceptions, referred the answer upon those exceptions.

This case came before the chancellor upon the appeal of the complainant, and also upon the appeal of Seneca Wood and two of the other children of Walter Wood deceased, from so much 0f the decree of the vice chancellor of the seventh circuit as adjudged and declared that the children of the testator who were living at the time appointed for the division of his residuary estate only took estates for life in their respective shares thereof; and that the remainders in fee, upon…

Tiie bill in this suit was filed by two of the heiis at law of G. Eddy for the partition of a part of the real estate ofwhich he died seized; and the case came before the chancellor upon an exception to the report as to incumbrances upon the undivided shares of the several tenants in common in the premises. G. Eddy died intestate previous to 1829, leaving four children and heirs, of whom Sally the wife of A. Traver was one.

This was an appeal from a decree of the vice chancellor of the first circuit. The bill was filed by the complainants as judgment creditors of Jacob Housman to set aside three conveyances made by him to his sons ; and to compel the latter to apply the monies which they had received upon a subsequent conveyance of a part of the premises in satisfaction of the complainants’ judgments, execution upon such judgments having been returned unsatisfied.

The answer in this cause, which was put in by the de- fendant Brown, was excepted to as scandalous and impertinent ; and upon a reference of the exceptions the same were allowed, and an order was thereupon made to expunge the impertinent matter, with costs. The defendant having neglected to pay the costs upon the exceptions, was committed, and being unable to pay the same, remained in prison.

This case came before the court upon exceptions to the master’s report as to the title and interests of the parties in a suit for the partition of a farm in Westchester county; and also upon an exception to that part of the report which related to the necessity of a sale instead of making an actual partition of the farm.

The bill in this case was filed for the partition of certain real estate in the city of Albany; and the only question in dispute between the parties was whether, upon the construction of the Will of Philip Wendell, their father, his son Philip, the defendant, was entitled to the lot on the south side of State-street, in which the testator resided at the time of making his will, as the sole devisee thereof in fee.

This was an application for an injunction, by the Mo% hawk Bridge Company and 24 others, to restrain the defendants from erecting a bridge for the passage of their railway across the Mohawk river at the city of Schenectady.

This was an application for leave to examine M. Eckford and C. P. Clinch, two of the complainants, as witnesses against the defendants G. C. De Kay and wife, for the purpose of establishing the allegations in the bill of complaint. The decedent gave to his daughter Mrs. Drake an absolute deed of certain real estate in t{ie city of New-York; the legal title to which, upon her death, descended to her daughter Janet H. the wife of J. C. De Kay.

This was an appeal from a decretal order of the vice chancellor of the first circuit overruling the defendant’s demurrer to a part of the discovery sought by the complainant’s bill. The following opinion was delivered by the vice chancellor, upon the hearing before him.

This was an appeal from á decision of the vice chancellor of the first circuit, denying an application to dissolve an injunction. The complainants wefe creditors of a special copartnership in which D. C. Árgall vvás the abtive ánd W. Argall the special or dormant partner.

These cases came before the chancellor upon appeals from the decision of the vice chancellor of the third circuit. The bill in each case was filed to recover from the defendants, the insurance company, the one fourth of the amount. of a policy upon the steam-boat Alabama which was destroyed by fire; by which event the owners sustained a total loss.

This case came before the court upon general demurrers to the complainant’s bill, for want of equity either as to discovery or relief. The bill was filed by Lawrence L. Van Kleeck in behalf of himself and the other legal representatives, by descent, devise or otherwise, of the residuary devisees of John Haberdinck, who died in 1723.

The bill in this cause was filed by the complainant against C. M. Graham, E. Barnes and the corporation of New-York, to be relieved from an assessment upon the complainant’s property, for the expense of opening Twelfth street in front of his lots.

The bill in this cause was filed to foreclose a mortgage given by the defendant Robertson to the complainant, upon a lot of land in the city of Hudson.

<p>Where the mortgagor claimed title to the mortgaged premises under a conveyance from four grantors, two of whom were minors at the execution of the deed, but who had done no act after they became of age to disaffirm the deed; Held, that a purchaser of the equity of redemption from the mortgagor, who had taken a conveyance from him subject in terms to the payment of the mortgage, could not, upon a bill to foreclose the mortgage, set up as a defence as to any part of the mortgaged premises a quit claim deed subsequently obtained from the minors after they became of age.</p> <p>Upon a bill to foreclose a mortgage, the mortgagee has no right to make a person whose claim is prior to the mortgage, and who claims the legal title to the premises adversely both to the mortgagor and mortgagee, a party to the suit, for the purpose of testing the validity of his legal title to the mortgaged premises.</p> <p>So upon a bill for the specific performance of a contract of sale, the vendee cannot make a person who claims title to the land adversely to the vendor, a party to the suit, for the purpose of settling the validity of his title in chancery.</p> <p>The deed of an infant purporting to be founded upon a valuable consideration is not absolutely void, but merely voidable. And to render a subsequent conveyance by the infant, after he arrives of age, an act of dissent to the prior deed, it must be so inconsistent therewith that both deeds cannot properly stand together.</p> <p>Where a purchaser from the grantee of an infant subsequently takes a quit claim deed from the infant, after he becomes of age, the latter deed only operates as a confirmation of the first, and does not overreach a mortgage given by the original grantee of the infant, subject to which the grantee in the last deed purchased the property.</p>

This case came before the chancellor upon appeal from the final decree of the vice chancellor of the eighth circuit, made between the defendants in an interpleading suit. The bill was filed against three different classes of claimants of the fund in the complainant’s hands.

This was a bill of forelosure and the defendant Martin Flowers put in an answer sworn to by himself only and not by his wife.

In pursuance of the permission given to the complainant in the order overruling the demurrer in this case, (see 5 Paige’s Rep. 613, S. C.) he amended his bill by stating therein that it was filed in behalf of himself and all other creditors of the Jersey Bank who should come in, &c., and by making the corporation of the bank a party defendant. Some other trifling amendments in matter of form merely were made.

This case came before the chancellor upon an exception: to the master’s report allowing an exception to the defendant’s further answer for impertinence. Held: the amount and origin thereof, whether the same had been, paid or otherwise secured, and how much was actually due thereon.