Volume 7 — New Jersey Equity Reports

Benjamin Hoyt, of the township of Union, in the county of Essex, in this State, administrator pendente lite of the goods, chattels and credits of Elizabeth Hait, late of the same place, deceased, exhibited his bill, stating that William Jauncey, deceased, late of the city and State of New York, died, in the city of New York, on or about September 19th, 1828, leaving a will, by which he bequeathed all his estate, real and personal, both in New York and in Great Britain, to…

<p>If the hill state, either directly or by inference, a base line of a fishery, an answer denying that such is the base line, and stating another, and shewing by what authority that was fixed, is responsive.</p> <p>W. II. was seized of land bordering on the Delaware river, and held and enjoyed a fishery in the said river opposite his said lands as appurtenant thereto. After his death, intestate, the Orphans’ Court of the county in which the lands are situated appointed Commissioners to make partition of his real estate among his heirs at law. The Commissioners, in making partition, separated the lands lying contiguous to the river from the fishery, by lines and fixed monuments, and severed and set off the fishery as a separate share of the estate, the line of separation being the usual high water mark. An injunction, which had been granted restraining the owner of the land from building a wall on the said line, was dissolved.</p>

In June, 1842, Peter A. Johnson filed his hill for foreclosure, on a mortgage dated April 1, 1841, given by'Edwin Ford and wife to him, to secure the payment of $6,000, in four years from date, with interest half yearly, from Feh. 1, 1841, according to the condition of a bond, &c. On the Uth April, 1848, a Master reported that there was then due on the mortgage $910 53, and that there would become due on the 1st of April, 1845, $6,000, and the interest thereon from Feb. 1,…

<p>The oath of a Jew complainant to an injunction bill must be made according to the form and solemnities of the Jewish religion.</p>

<p>At Sheriff’s sale on Execution, caveat emptor is the rule.</p> <p>The Sheriff, at the sale, said he was selling the right and title of the mortgagor, and the crier of the sale advised a friend of his, who asked his advice aside, privately, to have nothing to do with the property; that whoever bought it would probably buy a law suit. The property, for which the complainant had agreed to pay $2,800,' was sold for $1,400. It had been a neighborhood talk that the title of the mortgagor was disputed, and the complainant had himself contributed to becloud the title. There was no allegation in the bill that the title was free from dispute; nor that any better offer had been made for the property. The Court refused to set aside the sale.</p>

Hiram Hutchinson exhibited his bill, sworn to on the 15th of October, 1847, stating, that on the 25th of May, 1846, Ellison Conger, Judson Conger and Alfred Conger, of Newark, were indebted to William McBeth, of that place, in $403 32 5 to Francis C. Kellinger in $366 72 ;■ to George T. Johnson in $344 82 5 to James E. Bathgate in $230 85 ; to John Faulks in $282 22; to Henry Faitoute in $185 25 ;. to James R. Bird in $200; to George C. Crane in $126 63, and to Henry Holden,…

<p>Under tlie Constitution of New Jersey, adopted June 29th, 184 é, an act of the Legisture cannot authorize a Railroad Company incorporated by it to take land for the construction of their road without first making compensation therefor to the owner.</p> <p>The act incorporating “The Somerville and Easton Railroad Company” does not authorize the taking of land without first making compensation therefor.</p> <p>Semble} that under this act the Company cannot apply for commissioners of valuation and-damages until the route of the whole road be located.</p> <p>But the Chancellor refused an injunction to restrain the Company from applying for commissioners to value a part located, though the whole route was not located.</p> <p>The assertion of a right, the existence or non-existence of which is properly determinable at law, and the exercise of which will do no injury to the party denying it, is no ground for an injunction.</p>

<p>The case was submitted on bill and answer, without argument.</p>

<p>A bill was filed by one heir at law, against another heir at law, who was also administrator of the personal estate of the intestate, for the discovery of deeds; one, made' by the intestate, in his life time, and his wife, the mother of the parties, of property belonging to the wife, to A. B.; the other, a deed from A. B. to the intestate, in his - life time; neither of which had been recorded. The bill stated, that after the death of the intestate, the defendant had by fraud and circumvention procured a will to be made by the mother, giving the property to him; and prayed a discovery of the deeds; and also prayed the relief that the deeds might be established; and that the defendant be directed to account for the complainant’s portion of the rents and profits. The answer discovered the deeds, but set up facts on which it claimed that they were inoperative; and denied that the will made by the mother was procured by fraud. On the pleadings and proofs it was ordered, that the bill be retained for twelve months, and the complainant be at liberty to bring ejectment; and that the ■ defendant produce the deeds on the trial thereof; reserving all further directions.</p>

<p>The facts of this case sufficiently appear in the opinion of the Court.</p> <p>Motion to dissolve injunction.</p>

A bill was filed in the Court of Chancery of the State of New York, by some of the next of kin of Wm. Jauncey, deceased,, complainants, in July, 1831, against John Butherfurd, executor of the will of said decedent, Herman Thorn and James A. Hamilton, making Elizabeth Hait, one of the next of kin of said decedent, also, a defendant.

<p>On a motion for alimony pándente MU, on bill by the wife for divorce from bed and board on the alleged ground of cruel treatment, and answer filed and affidavits taken on both sides, it is proper for the Court to look into the merits of the case as thus far disclosed.</p> <p>The wife left her husband’s house without his knowledge, and took the two children of the marriage with her; and filed a bill for divorce from bed and board, on the alleged ground of cruel treatment; and applied for alimony pendente MU. The bill showed no sufficient cause for her leaving the house at the time when she did leave it. The court refused alimony, and said it would not be allowed unless, on her going back, with the children, to the husband’s'house, and offering to take her , place in the family, he should refuse to receive her.</p>

Daniel Runkle presented his petition of appeal, setting forth, that in the term of February, 1844, of the Orphans’ Court of the county of Warren, the final account of Alfred Gale, his late guardian, was settled in the said court; that afterwards, at an Orphans’ Court .held for said county on the 11th of September, 1846, on the application of the petitioner, and the allegation of mistakes in the settlement of said account, it was ordered that the said Gale show cause on the…

<p>A deed of land was made to A. and 13. in November, 1822, which was recorded in March, 1823. A. conveyed an undivided half of it to C., by deed dated Feb. 5,1827, which was recorded Feb. 20, 1827. G. conveyed his undivided half to D., by deed dated April 27, 1833, which was not recorded until August 5, 1845. On the 23d May, 1840, deeds of partition were made between B. and D., which were both recorded on the same 23d,of May, 1840. D. convoyed the half which had been set off to him in the partition to E., by deed dated March 14,1842, which was recorded May 7,1842; I'l convoyed this half to by deed dated May 0,1842, which was recorded May 7, 1842; and on the same day 14 gave to E. a mortgage on this half; to secure a part of the purchase money, and also made a lease of it to E. until the first of April thereafter. F. died; and in April, 1843, the administrator of his estate, by order of the Orphans’ Court, sold the half to G. and executed a deed to him, which was recorded Feb. 20, 1S44. G. conveyed this half to H., by deed dated December 8, 1844, and recorded Nov. 7, 1845. In July, 1844, T. recovered a judgment against C.; and, shortly after, caused an execution to be issued on the judgment and levied on this half, and claimed that, inasmuch as the deed from C. to D. was not recorded at the time of the recovery of his judgment, the half thus held by H. was subject to the judgment and execution, by force of the of the statute of New Jersey, Rev. Stat. 648, sec. 18.</p> <p>JldJ, that the same facts which would charge a purchaser from C. at the time of the entry of the judgment with constructive notice, would prevent the judgment’s becoming a lien on the land thus held by II. That the said statute does not require actual notice; but that constructive notice is sufiiciont.</p> <p>N. was a bona fide purchaser for a valuable consideration from M., by deed dated May 6, 1842, recorded May 7, 3 842. M. was then in the actual possession and occupancy of the premises thus convoyed by him, a considerable portion of it being cleared, and he cultivating it as a farm. M. had received a deed for the premises on the 14th March, 1842, which was recorded May 7, 1842. In May. 1840, partition, by deeds, of a tract of land including the premises in dispute was made between S. and M.’s grantor, by which the premises in dispute had been set otf, by metes and bounds, to M.’s grantor. Those deeds of partition were recorded May .23, 1840. The testimony showed that the parts thus conveyed, by metes and bounds, by these deeds of partition, had been by agreement occupied separately before these deeds of partition were made, according to the boundaries of the separate parts given by those deeds; and that S. and M.’s grantor had possessed and occupied, and exercised the usual acts of possession and ownership, notoriously, from April 27, 1888, on which last mentioned day, O. had conveyed an undivided half of the whole tract to M.’s granor. This deed from C. to M.’s grantor was not recorded until August 5> 1845.</p> <p>Held, that these facts would charge apurchaser fromC. in July, 1844, with cons tractive notice.</p>

The bill states that in the year 1822, Jacob Ridgeway, the complainant, was the owner of several large tracts of land in the County of Cape May, principally wood-land, and on which was growing a large quantity of timber, and trees calculated for making cord wood, saw stuff, and other lumber; having also, thereon two saw-mills ; one tract, called the East Creek Tract, containing upwards of 5000 acres; another, called the David Johnson Tract, containing about TOO acres; and…

On the-1st of April 1843, Isaac Rowe, with Jacob Rowe as his surety, gave a bond of that date to Betsey Hoagland, since deceased, conditioned for the payment of $1500 in one year with interest. On the second day of July 1844, Betsey Hoagland died, leaving a -will, and administration with the said will annexed was granted to John B. Matteson and David Hill.

Bill filed February 17, 1848, by Sarah V. Schank, an infant, by Wm. P. McMickle, her next friend; stating that on the 1st of April, 1843, Wm.

<p>The quasi lieu of the creditors of a partnership on its property, as against creditors of individual members of the partnership, gives equity jurisdiction for the purpose of protecting the members of the partnership.</p> <p>The affidavit required by the statute to be made by the plaintiff, on his taking a judgment by confession on bond and warrant of attorney, must show a debt existing at the time of the entry of the judgment.</p> <p>A. and B., partners in trade, confessed a judgment to C. The affidavit of C. stated the consideration to be, in part, notes of A. and B. endorsed by C. and not due; in part, notes of other persons given to A. and B. and endorsed by C. and not due; and in part, notes lent by C. to A. and B. for their accommodation and not due. Execution was issued on the judgment and levied on all the property of the partnership. On bill filed by D., a creditor without judgment of the partnership of A. and B„ C. was restrained by injunction from proceeding to a sale under his execution. And on motion, without answer, to dissolve the injunction, the motion was denied.</p>

The hill, filed October 1847, states that on the 10th of August 1839, James Boorman, John Johnson, Daniel Ayres and Adam Nome transferred to Peter M. Ryerson, the, complainant, $17,500 of the stock of the North American Trust & Banking Co., of Now York, at par value ; that the complainant-then gave them a bond and mortgage to secure the said sum and interest; and that, on the 21st October 1889, they transferred to the complainant $5,000 more of the said stock, at par value,…

la July, 1836, Ralph. Pomeroy and wife conveyed to David S. Brown, in trust for himself and certain associates, certain lands situated in the township of Belleville, in the county of Essex, containing about 33 acres, with a mill site and mill and dwelling-house thereon for $40,000, subject to a mortgage given to Gerard Rutgers.

<p>On the 6th February, 184,6, John Getsinger and Joseph Get-singer, who were partners in the manufacture of glass, executed to George B. Cooper and Charles B. Townsend a bill of sale of all the personal property which the said Getsingers held in partnership ; and of all the furniture in each of their houses ; and all the hogs, cows, calves, hay, rye, corn and other grain belonging to thorn, respectively; and all the lumber, cut and in the log, on the landing or elsewhere, and all the glass manufactured or in progress of manufacturo, and J01 boxes of glass then in the possession of Francis Lee and J. P. Biekley, and all and every article, of every kind, belonging to them jointly or individually, for the consideration in the said bill of sale expressed of $1 ; the bill of sale containing a covenant that the said Getsingers were the lawful owners of the said goods.</p> <p>On the same day, the Getsingers, with their respective wives, executed to the said Cooper and Townsend a deed, in fee simple, for the consideration therein expressed of $1,250, for thirty-six tracts of land, describing them, including a tract of about ten acres on a part of which the glass factory buildings and the said houses of the Getsingers and other houses stood, and containing altogether about 3713 acres of land; which deed contained a covenant of warranty on the part of the grantors against them and their respective wives and all persons claiming under them or any of them ; and was duly recorded.</p> <p>• On the same day, Cooper and Townsend, by deeds executed by them, conveyed to the children of John Getsinger, naming them, in fee, the house and iot where John Getsinger lived, and to the children of Joseph Getsinger, naming them, in fee, the house and lot where Joseph Getsinger lived. These two deeds were not recorded.</p> <p>On the 19th February, 1846, Jonathan Lore recovered a judgment in a Justice’s Court against the Getsingers, for $11 09 of debt, and $1 74 costs ; on which a fi. fa. was issued, and returned March 13,1846, “ no goods.” Another execution from a'Justice’s Court, on a judgment entered Feb. 20,1846, in favor of John Wallis, against the Getsingers, for $42 38 debt and costs was also returned, March 13, 1846, ct no goods.” Another execution from a Justice’s Court, in favor of James Smallwood against the Getsingers, on a judgment entered Feb. 21, 1846, for $48 53 debt and costs, which judgment had been assigned to David Lore, was returned, March 13,1846, “ no goods.”</p> <p>On the 11th August, 1846, Lorenzo Ogden recovered a judgment in the Circuit Court of Cumberland, against the Getsingers, for $1,203 13, on which execution was issued, and returned cc no goods.” On the same day, Jonas Hess recovered a judgment in the said Circuit Court against the Getsingers, for $1429 19, on which an execution was issued and returned “ no goods.” And, on the 20th May, 1846, Jonathan Lore recovered a judgment, in the said Circuit Court, against the Getsingers, for $665 93, on which execution was issued, and returned i( no goods.”</p> <p>On the 16th of April, 1846, Jonathan Lore, John Wallis and David Lore filed their bill, for themselves as judgment creditors of the Getsingers, and for all other judgment creditors of the Getsingers who should come in, &c., stating the foregoing facts ; and stating, further, that at the time of the making of the said bill of sale, the said Getsingers were indebted to divers persons in large sums of money, and among others, to the said complainants ; and that the said bill of sale was without any valuable consideration bona fide paid ; and that the Getsingers have been permitted to retain the possession of the said property ever since the making of the said bill of sale : and charging that the same is fraudulent and void as against the complainants ; and stating, in reference to the deed for the lands, that there was a secret understanding that the grantees, C. and T., should re-convoy to the children of the Getsingers, respectively, the houses in which the said John and Joseph Getsinger, respectively, lived, and should pay to John Getsinger $800 a year, and to Joseph Get-singer $200 a year, as long as the glass works should be carried on.</p> <p>That C. and T. sent an express, the same night the deed to them was executed, to Bridgeton, a distance of 16 miles, and had the said deed deposited with the Clerk of the County, for record before daylight the next morning; that the said two deeds to the children have not, as the complainants are informed, yet been recorded ; that, although the said deed to C. and T. purports to have been made for the consideration of $1250 paid before the delivery thereof, yet the complainants are informed, he ■ lieve and charge, that no money whatever, or if any, a mere nominal sum, was paid. They charge that the said deed was made for the purpose and with the intent to delay, defeat, hinder and defraud the creditors of the Getsingers, and is therefore fraudulent and void as against the complainants and the creditors of the Getsingers, or either of them. That the said two deeds made by C. and T. to the children of the said Getsingers, respectively, were made without any valuable consideration therefor paid by the said children or either of them; and were made at the samo time with the said deed and hill of sale to C. and T.; and were a part of the same transaction, and part of apian devised by the said J. and J. Getsinger and C. and T. to put the property of the Getsingers, or a considerable portion thereof, beyond the reach of the creditors of the Getsingers, and to enable them to keep possession of the said houses and lots and of the furniture and other articles in the said houses, and to use, occupy and enjoy the same as if no such deed or bill of sale had been made. They charge, that the said two deeds made to the said children, respectively, were made with the intent and purpose to defraud, hinder and delay the creditors of the Getsingers, and are therefore fraudulent and void as against the complainants and all other creditors of the Getsingers.</p> <p>The bill then states what the complainants charge to bo the value of the real and personal property conveyed to C. and T., and the value of the two houses and lots conveyed to them by the children of the Getsingers ; charging the real estate to be worth $14,000, subject only to an incumbrance of $11,745 28 ; and the personal estate to be worth $5,000 or $6,000; and the two houses conveyed by C. and T. to the children to be worth $1,000 each. That, at the time of the said conveyances, the aggregate amount of the indebtedness of the Getsingers was. not less than $25,000; and that C. and T. knew, at the time, that the Get-singers were largely indebted, and more than they were able to pay.</p> <p>That the Getsingers are Germans, and but little acquainted with the English language ; very ignorant of our laws and of the proper mode of transacting legal business, and of the nature and effect of legal proceedings. And that the complainants are •informed and believe that the said Getsingers were hurried and constrained, by various unfounded representations held out to them by Cooper and Townsend, or one of them, to execute the said conveyances, without giving them time to consult their friends whom they desired to consult, or take the opinion of •counsel, or fully to understand the nature and effect of the conveyances they were required to sign. To show which, the complainants say, that John Getsinger asked Townsend to give him from Friday, the day on which the deeds bear date, until the Monday following, to consult his friend John G. Rosenbaum before he executed the said deeds; but that Townsend insisted that the deeds must be executed on the said Friday, and told the said Getsinger that if it was not done that day the Sheriff would sell their property the next day, though the Sheriff had not advertised the property, and Townsend well knew the Sheriff could not sell the next day. That the complainants are informed and believe that Townsend gave as another reason to the Get-singers why he could not delay the business until Monday, that he had four lawyers on expense, and could not wait; and that, notwithstanding the said John Getsinger was advised by his friend James Ward not to enter into any writings until he got legal advice as to the effect thereof, and that there was no necessity of hastening the sale, and notwithstanding the said Ward carried to the Getsingers a proposition from Joshua Brick and others that, if the Getsingers would make an assignment of their property for the benefit of all the creditors, the creditors would make to them a deed for the houses in which they lived, yet the Getsingers declined the proposition.</p> <p>The hill then introduces statements that the complainants have reason to believe, and do believe, that the Getsingers have equitable interests, things in action, &c. of the value of $100 and more, which they have been unable to discover and reach by executions on their judgments; and seeks a disclosure from the Getsingers.</p> <p>The hill prays a receiver, and that the Getsingers may be enjoined from collecting, receiving, selling or transferring any of their debts, goods, account books, notes, &c. &c.; and from con» fessing any judgment for tbe purpose of giving any creditor a preference over the complainants ; and that the said bill of sale and deed to Cooper and Townsend may bo declared void ; and also the two deeds from Cooper and T. to the children of the Getsingers, and that C. and T. may he injoined from selling, taking away, or disposing of any of the personal property mentioned in the hill of sale.</p> <p>It appears that, at the date of the said deeds and bill of sale, the real estate w'as subject to a mortgage, dated August 1(5, 1845, given to Joshua Brick, Tlios. Lee, Frances Loo and T. B. Bicklcy, to secure $11,755 28 in six and twelve months, with interest ; and that, at the same time an execution existed, which had been levied in November before on the personal property of the Getsingers at the time of the levy, issued on a judgment for $2,400, obtained by Lee and Bickley against the Getsingers, which, it was admitted in the argument, was for a part of the money secured by the mortgage ; and that there were, at the same time, several executions in the hands of constables, which had been levied on personal property of the Getsingers, amounting in all to about $224.</p> <p>The Getsingers and Cooper and Townsend put in their joint and several answer.</p> <p>They admit the judgments, executions and returns thereon stated in the bill. They say that the bill of sale was made for a valuable consideration bona fide paid and agreed to be paid by C. and T. to the Getsingers; that the articles therein mentioned, except 101 boxes of glass in the possession of Lee and Bickley, were, at the execution of the bill of sale, delivered to C. and T.; and that the same, except some articles of household furniture of the Getsingers, of but small value, have ever since remained in the possession of C. and T., or have been consumed by them in the progress of their business ; and they deny that the said bill of sale was made with any view to injure, delay or defraud creditors, or that the complainants have in any way been injured therebyand they submit that the same was a valid, fair and bona fide transaction.</p> <p>They admit the deed from the Getsingers to C. and T. They say that the bill of sale and deed were made at the same time, and were one and the same transaction, and wore made by the Getsingers and their wives, to convey to C. and T. their interest in certain glass works and tracts of land appurtenant thereto, and certain personal property principally connected therewith, in pursuance of a contract made by the said parties, fairly and deliberately, for a fair and bona fide consideration equal to the full value thereof, as it was then situated, and in the fair and ordinary transaction of business; with no view to defeat, delay or injure the complainants or any other creditor of the Getsingers.</p> <p>They say, that the true consideration paid and agreed to be paid for the said real and personal property was the following : the execution (before stated) in favor of Lee and Bickley, and which they paid on the 12th of February, 1846, amounting to $2,512 18; that they also agreed to pay, for and on behalf of the Getsingers, at their request, $500 bona Jide due from them to one Joseph Schmouse, $250 bona Jide due from them to Lorenzo Ogden, $150 bona Jide due from them to Richard Mitchell, and $100 bona Jide due from them to Charles Bank, and several sums upon executions in the hands of constables, previously levied on the said personal property, supposed to amount to $250, and which afterwards proved to be $224 ; all which sums the said C. and T. have fully paid and satisfied; thatthe real estate was subject to a mortgage (being tlie mortgage before mentioned) for $11,755 23, which money, or such part thereof as was justly due, the said C. and T. agreed and expected to pay.</p> <p>That the wives of the Getsingers had not signed the said mortgage, and were entitled to a prospective right of dower, and were unwilling to join in executing the said deed without some reasonable equivalent; and it was therefore agreed that, in consideration of their joining in tho said conveyance, and as some compensation to them for their right of dower, tho two houses mentioned in the bill should be conveyed to such persons as tlie wives should designate and request ; and at their request the same were accordingly conveyed to the children of each.</p> <p>They deny that the said houses were worth anything like $1200 each; but believe that $1200 would he a good price for tlie two. They say that the said houses were no more than a reasonable consideration to the wives for joining in tho conveyance : that the other property conveyed by them to C. and T., sold by deed conveying all the right of tho wives, would bring considerably more, either at public or private sale, and was actually worth more than the whole property, including the said houses, would bo worth or bring if conveyed by the husbands alone. And tho defendants C. and T. state, that they would not have given for the whole property, including the two houses, what they have given and agreed to give, if tho wives had refused to join in the conveyance.</p> <p>They say that the said deeds wore not, nor was either of them, made for tho purpose and with tlie intent to delay, hinder or defraud the creditors of the Getsingers, or cither of them; hut that they were made in pursuance of a fair and bona fide contract, and for a good and adequate consideration; and they in-gist that the same are valid; and they deny that there was any intention or desire to put the property of the Getsingers, or any part thereof, heyond the reach of their creditors, or that there was any plan or intention so to do.</p> <p>The defendants C. and T.for themselves say, it is true they sent up the deed to be recorded in the night, exercising in so doing, as they believe, only a reasonable precaution against any attempt they had reason to believe might be made by designing persons to injure and defraud them ; and, as they submit, thereby doing nothing illegal, improper or suspicious; and they also caused the said bill of sale to be put on record, being willing that all their acts in the matter should be public.</p> <p>The defendants deny that the real estate was worth $1400, and deny that the personal property included in the bill of sale was worth $5,000; nor do they believe that it was worth more than was given for it by C. and T. They say that the personal property was valued, previous to the sale, by persons appointed' by the Sheriff, one of whom was a creditor of the Getsingers, at about $1500, including what is contained in the bill of sale, except some articles amounting in value to about $150, and except the 701 boxes of glass in the possession of Lee and Bickley,. which are claimed by them, or by them and Joshua Brick and Thomas Lee, and have not come to the possession of C. and T., or to any one for their use, being of the value of about $1028.</p> <p>That at the time of the said sale it was, and is still the belief of the defendants, that the real estate would not bring, at a public sale, more than the incumbrances on it; and had the works gone out of blast, there is every reason to believe that the said real estate would not pay the incumbrances. That property of that description is very precarious and uncertain in its value, and" would be greatly depreciated by ceasing to be worked for any considerable time; and, as these defendants then believed and still believe, would be greatly lessened in value by any material reduction of the rates of duties levied by the U. S. on glass ; the great probability of which reduction the defendants were well aware of when the said sale was made.</p> <p>They deny that there was any understanding at the time of or previous to said conveyances and bill of sale, and as any part of the consideration for making the same, that C. and T. should pay John Getsinger $300 a year, and Joseph Getsinger $200 a year as long as the glass works should he carried on.</p> <p>These defendants C. and T. purchased the said property with the hona fide view of carrying on the said glass works for their own advantage and profit; and since said purchase have so carried them on, and expect to do so. There is not now, nor has there ever been, since tbe making of the said conveyance, any agreement or understanding, express or implied, that the Get-singers, or either of them, or any other person for thoir uso and benefit, shall have any share of the profits, or any interest in the said property, or any right to the same in any contingency, except their right under the lease hereafter mentioned.</p> <p>C. and T., who are not practical glass blowers, needing the services of the Getsingers, did agree with John Getsinger to pay him $300 a year, in quarterly 'payments, for his services as superintendent of the glass factory, at which rate they have paid him since their said purchase; and to pay Jos. Getsinger $200 a year, quarterly, for his services as master blower and pot maker, at which rate they have paid him since their said purchase; and they also made a lease to the sons of John and Jos. G. for two lots of meadow, at the annual value of not exceeding $50, for the use of tho said John and Joseph, the proceeds of which they receive, in addition to the sum aforesaid; and which said sums and tho proceeds of said meadow arc no moro than a reasonable consideration for the services actually rendered by the Getsingers to C. and T., and no more than are usually paid for similar services.</p> <p>The defendants admit that, at the time of making said hill of sale and conveyance tho Getsingers were largely indebted ; and, although C. and T. had no particular knowledge of tho said debts, they were informed that such was the case ; and the fact also, was, as the defendants all believe, that the affairs of the Getsingers were so situated that there was no reasonable prospect of their being able to pay anything more than the incumbrances then on the property, had they not succeeded in effecting a salo to persons able and willing to carry them on. Had the whole personal property levied on been sold under the executions and dispersed, or had the Getsingers made an assignment, the works must have stopped j and in either case the property-must have greatly depreciated, to the injury of the creditors. These defendants believed at the time the sale was made, and still believe, that the sale, for the price obtained and actually paid to the creditors of the Getsingers, was the best arrangement that could be made for the benefit of all concerned.</p> <p>The defendants say it is true that the Getsingers are Germans and but little acquainted with the English language, and are not well acquainted with the laws of the country; but the defendants the Getsingers declare that, before executing the conveyance and bill of sale, they, made themselves fully acquainted with the nature and effect thereof, and were at the time, and still are, entirely satisfied that they did what was best for themselves and best for their creditors.</p> <p>The defendants say that the proposition to purchase the said works was first made by the Getsingers to C. and T., and that negotiation respecting the purchase was in progress a full week; and the Getsingers deliberated on the subject and consulted with their friends during that period until fully satisfied. The defendants deny that unfounded representations were made by C. and T., or either of them, to the Getsingers, or either of them, to induce them to execute the said conveyances. They say that the terms of the contract had been agreed upon on Friday, and C. and T. were desirous and urged that the business should be completed that day, if at all; and C. and T. say they were induced so to do because ample time had been spent in arranging the business, and further delay would occasion them additional expense and inconvenience, and because they were informed and believed and still believe that J. Brick, Thos. and F. Lee and Bickley were using all the means in their power to embarrass them and to break up the business of the glass works, and bring the Getsingers wholly under their power and control.</p> <p>The defendants say they believe, and therefore state, that the complainants’ bill was filed at the instigation of and in concert with said Brick, Lees and Bickley, who contribute, as the defendants are informed and believe, to the expenses of this suit, and are really parties thereto; and they believe, and therefore state, that the whole difficulty has been produced by their interference and to serve their private purposes. The Getsingers depended much on them, for many years, for advice and aid ; but it having come to the knowledge of the said Brick, Lees and Bickley that their business had not prospered, and that the Get-singers had met with very heavy losses, by fire and otherwise, Brick, and Bickley his son-in-law, and the said Thos. Lee, and Francis Lee his son, who had previously been much at variance and for a long time not in the habit of transacting business together, reconciled their difficulties, and, as the defendants believe and state, concocted together and unjustly and unlawfully combined to get the said glass works into their own hands, or to get the management of the business ; and joined together, in pursuance of said design, to obtain from the Getsingers the said mortgage and judgment, and then suddenly refused to give them any further credit, or afford them any aid; but caused their executions to be levied, and were proceeding to enforce a sale ; and when they found that their said design was likely to be defeated, and that the Getsingers were in a fair way to sell the works to C. and T., they combined with the complainants to embarrass and throw all the difficulties in the way of the defendants in their power.</p> <p>The Getsingers say, that John Getsinger owns some land in Atlantic county, which is mortgaged to a creditor of the said Getsingers for its full value; and they say they have annexed to the answer a list of all their property, and debts due them which have been contracted within any reasonable time, and which are of any value, setting forth what they consider may perhaps be collected, and which they suppose are doubtful or desperate ; and they say that, except what is contained in the said list, and except their earnings since the making of said conveyances, which they have from time to time expended in the support of themselves and their families, and except the lease before mentioned, they, or either of them, had not, at the time of the rendition of the judgment in the bill mentioned, possessed, owned or had, and do not now possess, own or have any property of any kind.</p> <p>The Getsingers say they have always been and still are desirous of paying all their debts, and have made every possible effort to do so, and have always intended to appropriate ev ery cent they could collect of the debts due them, and all their property to the payment of their debts ; and that they have never concealed the same; but are desirous now to collect what is due them, and pay the same to their creditors, and submit that they ought to be allowed to do so without further restraint or hindrance.</p> <p>The answer submits, that the complainants have not brought themselves, by the facts stated in their bill, within the provisions of the act entitled “ An act respecting the Court of Chancery,” and are not entitled to the benefit thereof ; and they hope they shall have the same benefit of this defense as if they had demurred.</p> <p>The case was heard on the pleadings and evidence.</p>

James Baldwin died in the summer of 1841, leaving a will dated February 10,1840.

On the 7th April, 1848, probate of the mil of Isaac Lawrence was granted by the Ordinary. On the 18th April, 1848, the petition of John A. Pool was presented to the Ordinary, stating that Isaac Lawrence died in July, 1841, leaving a widow and several children, his heirs at law, him surviving.

<p>M. conveyed land to 0., and O. gave a defeazance providing for reconveyance to M. on his paying &c. M. filed a bill to redeem; and after answer and replication and some proofs in the case, died. G. filed a bill, stating the proceedings on M.’s bill; and that M., in his life-time, conveyed all his interest in the premises to him, G.; and that administration of the personal estate of M. had been granted to him, G. ; and praying that the said suit of M. might stand revived &c.; without saying in what character G. sought to revive. * C. pleaded that H. was the true administrator of the personal estate of M., and not G. Plea sustained.</p> <p>What kind of a bill should G. file, as assignee of M. after M.’s bill was filed, in order to get the benefit of the proceedings in the suit brought by M., if such benefit could be obtained in the case.</p> <p>Semble, that it should be an original bill in the nature of a bill of revisor and supplemental bill.</p>

The hill, filed December 2, 1845, states, that on the 6th of February, 1819, the complainant, Nathaniel Doughty, and the defendant, Enoch Doughty, being brothers, entered into… Held: possessed and enjoyed as his own separate property all the estate, real and personal, assigned to him in said division ; that this defendant possessed, used and occupied the said real estate according to the nature thereof, part being land used for agricultural purposes, and part being woodland.

<p>It had been determined that, by an agreement between creditors of an incorporated manufacturing company and the company, a manufacturing establishment was held by A., in trust, first, for the payment of the creditors, and then for the company. The property was occupied by B., in its appropriate use, in connection with, or with the consent of A.; and an order had been made in a cause in which the company was complainant, and A. and B. were defendants, directing both A. and B. to account for the rents and profits, for the purpose of ascertaining whether they had not amounted to sufficient to pay the debts; and the account had not yet been taken. B.’s ability to respond was admitted; and the property was of a nature to be injured if not used. In this state of things, the company applied for a receiver to take charge of the property. The motion was denied.</p> <p>A denial that property is held in trust does not make the appointment of a receiver necessary on the establishment of a trust.</p> <p>Where there is no ground for apprehension of loss by permitting the property to remain, in its appropriate use, in the occupancy of him who has the use of it, and his ability to respond for its use is admitted, and he is one of the persons who have been ordered, in the cause, to account before a Master for the rents and profits that may have been received, a receiver will not be appointed to take charge of the property.</p>

The facts stated in the bill were admitted in the answer ; the infant defendant answering by James N. Joralemon, his guardian.

On the 26th November, 1814, by an agreement of that date, under seal, between William and Robert Colfax, of the first part, and Thomas W. Haythorn, of the second part, the Colfaxes agreed to sell and convey to Haythorn the middle and south part of the farm they had lately bought of John Seward, situate in Vernon and Hardiston townships, in Sussex county, (describing it,) supposed to contain about 580 acres, including 20 acres near the turnpike house; for which, the agreement…

<p>The bill in this case, filed Sept. 20, 1845, is exhibited by Samuel H. Pennington, against Elias L’Hommedieu and Samuel Fowler; and states that Samuel Fowler, late of the County of Sussex, deceased, left a will, dated Doc. 4, 1842, and appointed his sons Samuel Fowler, (one of the defendants,) Henry O. Fowler, Robert O. Fcwler and John Fowler, together with Elias L’Hommedieu, (the other defendant,) and Daniel Haines Executors thereof. That tho said testator died on or about Feb. 26, 1844; and that L’Hommedieu and Samuel Fowler, (the defendants,) two of the Executors named in the said will, proved the same and took upon themselves the burden &c., and possessed themselves of all tho personal estate of tho testator, to a very large amount.</p> <p>That on the death of Jacob S. Thompson, who was an uncle of Julia Ann Bigelow, and who died about the 1st of Jan., 1832, intestate, the said Julia Ann Bigelow, as one of the heirs at law of the said Jacob S. Thompson, deceased, became entitled in fee, as tenant in common with divers other persons, heirs at law of said intestate, to a large and valuable real estate, situate in the County of Warren. That the share of the said Julia Ann was the one equal undivided fifth part, and was divided and set off to her in severalty on or about March 1st, 1832. And that the said Julia Ann, as one of the next of Mn of the said Jacob S. Thompson, deceased, became entitled to a distributive share of the personal estate of said intestate ; her distributive share being one fifth. That during the minority of the said Julia Ann, and at or about the time of the death of the said Jacob S. Thompson, the said Samuel Fowler, deceased, was appointed and became the Guardian of the estate, real and personal, of the said Julia Ann; and as such took possession, charge and custody of the real estate of the said Julia Ann; and from time to time received large sums of money of the personal estate of the said Julia Ann. That, in particular, the said Samuel Fowler, deceased, received from Jacob T. Sharp, the Administrator in Pennsylvania of the said J. S. Thompson, deceased, on or about the 8th of Feb., 1883, $1315. And that the said Samuel Fowlei’, deceased, gave to the said Sharp a receipt for the same as follows: “Received, Feb. 8th, 1833, of Jacob T. Sharp, Administrator of the estate of Jacob Thompson, deceased, in Pennsylvania, $1315, for the use of Julia Ann Fowler, my daughter and ward, one of the heirs of said estate.” and signed “Samuel Fowler Guardian of Julia Ann Fowler.”</p> <p>That, in particular, the said Samuel Fowler, deceased, leased a large and valuable part of the said real estate of said Julia Ann to one Mark Thomson, from on or about the time of the death of the said Jacob S. Thompson until on or about April 1st, 1834, and received from time to time the rent reserved for the same, amounting in all to about $500, or a large part of the same; and that the said Samuel Fowler, deceased, leased several other large and valuable parts of the said real estate of the said Julia Ann to divers persons, and received from time to time the rent reserved for the same, or some part thereof, amounting to a large sum of money; and used and occupied divers other large and valuable parts of the real estate of the said Julia Ann, and derived great gains therefrom for his own use and benefit.</p> <p>That if said Samuel Fowler, deceased, failed to collect any part of the rents so reserved such failure was owing entirely to and resulted from his neglect and inattention, and that his legal representatives ought to account for the same.</p> <p>That the complainant is informed and believes, that a large part of the money so received by the said Samuel Fowler, deceased, and particularly the amount so received from the said Jacob T. Sharp, was, immediately after the receipt of the same, invested by the said Samuel Fowler, deceased, for the use and benefit of the said Julia Ann, upon good and sufficient bond and mortgage; and that the said Samuel Fowler, deceased, received, from time to time, large sums for or on account of interest therefor.</p> <p>That if the said Samuel Fowler, deceased, omitted to invest the moneys so received by him, or any part thereof, or used the same in his own business for his own use, his personal representatives should account for legal interest thereon; and should account for the uso and occupation of such parts of the said real estate as were occupied by the said Samuel Fowler, deceased, and interest on the value of such use and occupation.</p> <p>That the said Samuel Fowler, deceased, by his will, (after giving divers pecuniary and specific legacies, and devising certain of his real estate, and directing the payment of certain annuities out of his personal estate, and which he charged upon the residue of his real estate not specifically devised in case of a want of personal estate, and authorising his executors, in that case, to sell or set apart, for such payment, such a part of the said residue of his real estate as they should deem proper,) bequeathed and devised as follows: “ Then, all the rest and residue of my estate, real and personal, I give devise and bequeath unto my sons Samuel Henry Ogden, Robert Ogden and John, and my said daughters Julia, Mary Estelle, Rebecca and Clarinda, to be equally divided between them, share and share, alike; giving to my executors, nevertheless, power to sell such parts of my real estate in this clause devised as shall to them seem most advantageous to toy estate.”</p> <p>That the said Julia Ann Bigelow, whose maiden name was Julia Ann Fowler, was the daughter of the said testator, and is the person mentioned in the said receipt given by him, in his life time, and in the said will. That the said Julia Ann attained her Majority on or about Feb. 17th, 1884; and was married to and with Moses Bigelow, of Newark, on or about Feb. 4th ,1836.</p> <p>That on the 7th of May, 1844, by an indenture made and executed by and between the said Moses'Bigelow and Julia Ann Bigelow, of the first part, and the complainant of the second part, r'eciting, among other things, that the said Samiiel Fowler, deceased, had, in and by his will, bequeathed and devised as herein bbfore recited; and that the said Julia Ann Bigelow was entitled tb have and réceive from the said executors a large sum of money ás the balancé due from the said testator as her guardian; and that the said Moses Bigelow, by reason of his said marriage and of his marital rights, had theretofore, from time to time, had and received divers sums of money derived from the estate of the S&id Julia Ann Bigelow, both real and personal, which her - was seized óf and entitled to, bothbefore and after her said marriage, amounting to several thousands of dollars; the said Moses Bigelow and Julia Ann Bigelow, for the erasideration therein named, bargained, sold, assigned, transferred and set over to the complainant, among other things, all such sum or sums of money as the said Moses Bigelow and Julia Ann Bigelow, or either of them then was or might thereafter be entitled to by or under the said tyill, in any manner, by reason of any provision thereof; and all Such sum and sums of money as might be due to the said Julia Ann Bigelow from the testator as her guardian, together with free power and authority to ask, demand, sue for and receive the same in the names of the said Moses and JuJa, or either of them, or in any other proper name or names or manner whatsoever, as might be necessary, upon the trusts therein declared, that is to say, to pay, transfer, assign or otherwise dispose of all the said trust moneys and property, and the interest, dividends and produce thereof, to such persons, for such purposes and in such man-her as the said Julia, notwithstanding her coverture, should by any deed or deeds, writing or writings, sealed and delivered as therein set forth, or by her will, direct or appoint; and in default of and until such direction or appointment, and so far as any such direction or appointment should not extend,-to take all such measures in law and in equity as should be proper and necessary to call in, collect and reduce into money all such of the trust property assigned and transferred as aforesaid as should not consist of money, and, with the consent of the said Julia Ann in writing, to lay out and invest the money which should come to his hands therefrom and all sum or siims of money therein mentioned, as and when the same should he received, in his name, on bond and mortgage good and sufficient within this State, and, with such consent as aforesaid, alter, vary and transfer all such bonds and mortgages, as to him should seem meet; and to stand and he possessed of all and singular the trust property and the produce, interest and dividends thereof, in trust to pay the interest and produce thereof, as and when the same should become due and ho received by the complainant, during the joint lives of the said Moses and Julia, into the proper hands of the said Julia, or of such person or persons and for such purposes as the said Julia, notwithstanding her coverture, should by writing under her hand and seal from time to time direct and appoint, in trust that the same might he for the separate and sole use and at her absolute and uncontrolled disposal, and not liable to the debts, contracts, forfeitures or engagements of the said Moses, and in ease the said Julia should survive the said Moses, to pay, transfer and assign, immediately on the death of the said Moses, the said property unto the said Julia Ann; and in case the said Julia should die before the said Moses, then, from and after the death of the said Julia, to pay the interest and annual product thereof, as and when the same shall become due and be received, into the proper hands of the said Moses, or into the hands of such person or persons, and for such interests and purposes as the said Moses, by writing under his hand should from time to time, hut not by way of anticipation, direct; and upon the death of the said Moses and Julia or the survivor of them, to pay, assign and transfer the said trust property to the person or persons who, under the statutes for the distribution of tbe estates of intestates, would be entitled to the personal estate of the said Julia in case she should die intestate. That the said Moses did, in and by the said indenture, among other things, covenant and agree to and with the complainant that he would or should not at any timo prevent or obstruct the said Julia, her heirs, appointees, executors, administrators or assigns, or the complainant, from holding, enjoying, or receiving, taking and disposing of the said trust property, or the interest, produce or profits thereof according to the true intent and meaning of the said indenture; and that he would and should, in case the said Julia should die before him, permit the will of the said Julia, if any, to be proved &c.</p> <p>That the complainant assumed and took upon himself the execution of the said trusts ; and became and was, as such trustee, entitled to have and receive the moneys due to the said Julia from the said testator as her guardian, and all such moneys as the said Moses and Julia were, or either of them then was or ought to be entitled to by or under the said will, by reason of any provision thereof, and all the right, title, interest &c., both at law and in equity, of them the said Moses and Julia, or either of them, in and to the moneys and property so assigned and transferred thereby, with full power and authority to demand, sue for and receive the same, in the names of the said Moses and Julia, or either of them, or in any other proper name or names, or manner as might be necessary.</p> <p>That the said Moses and Julia are now living. That the said Julia hath not at any time directed the payment, transfer or other disposition by the complainant as such trustee of the said moneys so due her from her said deceased guardian, or the moneys to which she became, was or is entitled to under the said will.</p> <p>That the said testator, in his life time, or his legal representatives since his death, never accounted to the said Julia before her marriage, or the said Moses and Julia, or either of them, since their marriage, or to the complainant since the making of the said indenture, for or on account of the said moneys so received by the testator for the use of the said Julia, or any -part thereof, or for or on account of the distributive share of the said Julia in the rest of the estate real and personal so bequeathed and devised as aforesaid, or paid the said Julia before her marriage, or the said Moses and Julia, or either of them, since their Said marriage, up to the time of the making of the said indenture, or to the complainant since, anything on account of the said moneys or the said distributive share.</p> <p>That the said executors (the defendants) were, forthwith after the making of the said indenture, notified and informed of the making thereof; and that the complainant, by reason thereof, was entitled to have, and receive into his possession the said moneys and distributive share, in the execution of the trust directed by the said indenture.</p> <p>That the complainant, or some person in his behalf, has repeatedly applied to the said L’Hommediu and Fowler, as such executors, for a statement of the account of the testator as such guardian, and for an account of the personal estate of said testator and the interest thereof. But now so it is &c. And sometimes they pretend, that before the making of the said indenture, or before they had notice or information thereof, the said Julia and Moses received the distributive share to which the said Julia was entitled out of the residue of the said personal estate, and executed to the said executor a release of the said distributive share; whereas the complainant charges the contrary to be true; and that if the said Julia and Moses ever did receive any part of the said distributive share, it was but a small part thereof, and not to exceed $100, and was received after the making of the said indenture, and after the defendants, as such executors, had notice thereof, and after the creation of the said trust; that the receipt thereof was the act, and ought to be considered by this court as the act of the said Moses exclusively, and not of the said Julia. That if the said Moses and Julia executed to the said L’Hommedieu and Fowler a receipt and release for the said distributive share, such receipt and release were made and executed after the making of the said indenture and the creation of the said trust, and after the said executors were notified and informed thereof, and upon the payment to the said Moses of a sum not exceeding $100, which was more than $3000 less than the distributive share to which the said Julia was entitled, and upon and by reason of representations to the said Moses as to the amount of the residue of the personal estate of said testator, and especially of particular items thereof to be distributed, made by the said L’Hommedieu and Fowler, partly deceptive and untrue, and of wrongful and fraudulent concealments made by them of divers large and important items of personal property of the testator, whereby the said Moses was, intentionally by them, misled and deceived as to the amount of the distributive share to which the said Julia was entitled, and of threats and intimidations made to and practiced upon the said Moses hy the said L’Hommedieu and Fowler, whereby they threatened and made him apprehensive that they would bring up claims against him, then outstanding, and attempt to set off the same against the said distributive share of the said Julia, and of attempts made by them to buy up such outstanding debts for that purpose, and of unreasonable and oppressive delay in the settlement of the estate, and not filing an inventory thereof; which has been withheld to this time, as the complaniant has been informed and believes; the said Moses being then greatly embarrassed in his pecuniary affairs and in need of money. That the signing and execution of the said receipt and release were, and ought to be considered by this court, as the acts of the said Moses exclusively. That, in particular, the said executors, or one of them, untruly, and intentionally to mislead the said Moses, represented to him that the indebtedness of one Joseph E. Edsall to the estate of the said testator was only about $4000, and that it could not be. collected because of the defense of usury which could be set up against the same, and that the amount due on a bond and mortgage on certain property called the Franklin Furnace property, constituting a part of the personal property of the said testator, did not amount to ten thousand dollars ; whereas the complainant charges that the amount due from said Edsall was not less than $10,000, and that usury could not be successfully pleaded thereto, and that the amount of the said bond and mortgage was not less than $18,000.</p> <p>And the complainant submits, that if any payment was made to said Moses and Julia on account of said distributive share, and a receipt or release therefor was given by the said Moses and Julia after the making of the said indenture and the creation of the said trust, such payment, receipt or release ought not to avail against the rights of the complainant under the said indenture ; or, if the court shall be of opinion, in case it shall appear that such payment, receipt and release were made and given after the said indenture was"made, but without notice or information thereof to the said L’Hommedieu and Fowler, or either of them, that such payment &c. shall have effect as against the complainant, they should have effect, under any circumstances, only to the extent of the said $700.</p> <p>The hill prays an account of the moneys received by the tes - tator as guardian as aforesaid, and also of the personal estate of the testator, and that the same may be applied in due course of administration; and that the complainant may be paid, &c.</p> <p>The defendants answered separately. The answer of Fowler was filed April 9th 1846. He admits the will and that he and L’Hommedieu proved the same, March 14th 1844; and that this defendant possessed himself of so much of the personal estate as came to his knowledge within the State of New Jersey, a true and perfect inventory whereof is now nearly completed, amounting to $40,000, subject to deductions for bad debts and unsettled accounts.</p> <p>He admits the death of Jacob S. Thompson, and that said Julia, as his nieeo and one of his heirs at law, became entitled to one fifth of his real estate ; and that several tracts of land, part of said real estate, wore assigned to her in severalty; but that he does not know and cannot state the value thereof; and that the said Julia, as one of the next of kin, was also entitled to one fifth of the personal estate of the said Jacob S. Thompson, after paying &c.; but how much it amounted to he has no knowledge or means of ascertaining, and therefore cannot state.</p> <p>He admits that the said testator acted as the guardian of the person and estate of the said' Julia, and as such took charge of her real estate after the same was set off to her, but at what precise time he does not know; nor does he know or believe that the said testator ever occupied or used the said lands; but he is informed and believes that he rented some part of said real estate to one Mark Thompson, for $200 a year, and afterwards to one Richard Coursen, but for what rent he does not know; nor does he know how long the said Thompson and Coursen, or either of them, occupied said real estate, nor how much rent they paid for the same, except that in the books of the testator he finds a credit of $45 to Coursen for rent, of Sept. 22d, 1838 ; and this defendant afterwards, but at what precise time he does not recollect, received of Coursen $40, which he paid over to the said Julia.</p> <p>He admits that the testator in his life time received divers sums of money of the personal estate of said Thompson for the use of the said Julia; but how much, or at what time, or what deposition he made of the same he has no knowledge except from the books of account of said testator, by which it appears that the testator received of the Administrator of Thompson in Pa. on the l8thFeb., 1883, $1315, and of one Henry J. Butterworth, on the 19th of April, 1843, $9. Besides the said sums he has no knowledge that the testator received any other moneys of the-said personal estate. *</p> <p>He states that by the said books of account it also appears-that the said testator has charged the said Julia with divers sums of money by him paid to and for her, for expenses of the partition of said real estate, and of a controversey respecting the same before the Prerogative Court, and for board and tuition in music, traveling expenses and necessary and suitable things furnished her after she attained 21, amounting, in all, to $3,176 28,. and leaving a balance against her of $1,505 23.</p> <p>He says he is informed and believes, and therefore charges that the testator paid out divers other large sums of money for the said Julia not mentioned in the said books of account, amounting to about $1000, which is a just charge against her.</p> <p>That from the knowledge he has of the transactions of the said testator in relation to the property of the said Julia, and from the understanding in the family while she lived there, before her marriage, and from conversations between the testator and said Julia, he believes and therefore states that the whole amount of money received by the testator for her was paid out and expended by him for her use and benefit, or paid to her. And he recollects, on one occasion when he and the testator were conversing in the presence of said Julia about her property, that the testator said she was spending too much money, and had already spent more than was due to her.</p> <p>And at another time, after Julia had been spending some time in Washington, she mentioned to this defendant that the testator would not let her have all the money she wanted, and had told her that she had spent all the money that he had received for her from the estate of said Thompson.</p> <p>That he verily believes that when Julia left the testator’s house, after her marriage, she was largely indebted to him for moneys paid to her and for her use and benefit, and that it was so understood by her and her said husband.</p> <p>That he is informed and believes that the said Julia, after her marriage, was the constant object of the bounty of said testator, and that he paid to and for her, and to the said Moses on her account, divers large sums of money, but at what time, and in what sums he does not know; and also gave to her and her said husband, soon after her marriage and up to the time of his death, the possession of a large and valuable farm in Warren county, in a part of which the testator had a life estate, and in the residue the fee simple, and suffered them to receive the rents and profits thereof to the amount annually of at least $300.</p> <p>That from sundry letters of Bigelow addressed to the testator, and sundry accounts and statements in the handwriting of the testator and the said Bigelow, it appears, and this defendant believes and therefore states that the testator paid and advanced large sums to the said Bigelow, partly for his individual use, and partly for the use of the firm of Bigelow, Canfield & Ingraham ; but, as this defendant believes, all at the particular request of said Bigelow, and to assist him in his business, amounting to a large sum of money, but to what sum he does not know ; but he heard the testatator say, a short time before his death, that he had advanced for the said Moses, in money and property, $75,-000, and would lose that amount by him; all which, he submits, is inconsistent with the idea of any indebtedness of the testator to the said Julia as set forth and claimed in the bill.</p> <p>He denies that he has ever been requested to render any statement of the account of the testator as guardian of the said Julia, or otherwise, either by the complainant or any person on his behalf; and also denies that he ever had any notice or knowledge whatever, except by the bill, of the execution by the said Moses and Julia to the complainant of the said deed of trust as set forth in the bill.</p> <p>He says that the testator, by his will, devised a tract of land and premises in the township of Mansfield, Warren county, containing 28 acres, with yaluable buildings and improvements thereon, in trust for the said Julia during her life, and after her death to her children; and did also give and bequeath unto his executors whatever sum should at the time of his death be due to him from the firm of Bigelow, Canfield & Ingraham, or from any of the individuals of that firm, in trust to and for the exclusive use and benefit of said Julia, to be paid upon her order and receipt; and did, also, give and devise to the said Julia, in fee, the equal undivided eighth part of his real estate not thereinbefore devised; and that the value of the real estate so devised to the said Julia greatly exceeded the whole amount of money which the testator received or ought to have received and collected as guardian of the said Julia; and that the amount of the money due the testator at the time of his death, from Bigelow, Canfield & Co., and some of the individuals of that firm, also greatly exceeded any sum which the testator ever received or ought to have received as the guardian of the said Julia; and that the securities for the said debts have been and were paid and transferred to the complainant before the filing of said bill, upon the order and receipt of the said Julia; and this defendant submits that the said devises and bequests are and should be taken in satisfaction of any demand which the said Julia might have had against the testator in his life-time; and that neither the said Julia nor any person on her behalf have any right against the executors of said testator to have an account of said guardianship.</p> <p>That the testator, at the time of his death, left a paper, in his own writing, purporting to be a codicil to his said will, in the words and figures following : “ This is a codicil to be added to the last will and testament of me, Samuel Fowler, which bears date on or about the 4th of December, 1842. 1st, I do hereby ratify and confirm my said will in all respects, so far as any part thereof shall be revoked, altered or addition thereto by this present codicil, and first, the first bequest in said will made to my wife Rebecca, wherein I have bequeathed to her so much of my househould furniture as she may require for her own use, it is my will and intention hereby to alter and revoke the same so far in this codicil as to say, that I give and bequeath to her so much of my household furniture as she may require for her own use, and so much as may be required for the use of our children that may wish to reside with her, and at her decease all the aforesaid furniture tobe equally divided among my four daughters, Julia, Estelle, Rebecca and Clarinda. In the last bequest in the aforesaid will, I hereby revoke that part of the same so far as relates to my daughter Julia,” as by reference, &c.</p> <p>And this defendant says that he was advised by counsel, and believes, that he would have been able to prove that the said codicil was made and intended by the said testator as and for a codicil to the said will, and that the same was sufficiently signed and published to make it effectual to pass personal estate; and that he and his co-executors soon after the death of the testator were about to prove the said codicil, when the said Moses filed a caveat against the proving thereof; in consequence of which, such proceedings were had in due course of law, that the matter of proving the said codicil was set down for hearing before the Orphans’ Court of Sussex, on the 9th of April, 1844, and after-wards continued to another term. That while the said matter was so pending in said court, the said Moses proposed to this defendant and his co-legatees an arrangement of the said matter ; and after various propositions and conversations, proposed that if the other residuary legatees would transfer to him, or to some person whom he should name, certain notes and claims which the said Moses had before then transferred to the testator as a payment of the amount thereof upon his claims upon the said Moses and the said firm of Bigelow, Canfield & Co., and which are particularly mentioned in a certain article of appointment or order of the said Julia hereinafter set forth, amounting in the whole to $¡5,179 71, besides interest then accrued thereon, and which were then held by this defendant as assets of the said estate, and would pay to him, the said Moses, $700, he and his said wife would take the same in full satisfaction of all claim and demand upon the personal estate of the testator, except that portion of the same which was bequeathed in trust for the said Julia. And on this defendant declining this proposition, the said Moses urged the same with great importunity, and, among other reasons to induce the said legatees to assent thereto, he stated that if those notes and claims were placed within his control, he could, with them and the money he asked, compromise and pay all the debts outstanding against him, and be able to resume business, and thus provide for and benefit his family more than in any other way; while, if the said notes and claims remained in the hands of the executors, their efforts to collect them would probably be ineffectual, as the debtors on the said notes and claims were of doubtful ability to pay, and that a very considerable loss would be sustained. And, after consultation and due reflection, the said legatees, including this defendant, considering that probably the said notes and claims could be turned to good account by said Moses and be of great service to him and his family, and that they might be in whole or in part lost to the estate if retained by the executors, and considering that the sum of $700 was a mere gratuity and not due to the said Moses and his wife, but that it might, and probably would be the means of preserving the friendship and harmony of the family, agreed to the said proposition of the said Moses, and it was then supposed that all controversy about the said estate was settled between the said parties. And this defendant says that the said Moses then produced the draft of a receipt which he proposed to give upon the payment of the said $700, but the same was excepted to by this defendant, because, by the agreement between the parties, a release of all claim against the personal estate was to be given, and thereupon a form of such release was furnished to the said Moses to be executed by him and wife in such manner that it might be duly recorded as an acquittal of the said executors.</p> <p>That, at a subsequent day, the said Moses presented to this defendant a release which, he believes, was copied from the draft furnished as aforesaid, or was to the same effect, purporting to be executed by the said Moses and Julia in the presence of a female wholly unknown to any of the executors or legatees, and who he said was the nurse of his said wife ; and upon this defendant’s excepting to the execution of the said release because of the obscurity of the subscribing witness, but more particularly for want of a proper acknowledgment by the said Julia, the said Moses pretended to be offended at what he suggested was a want of confidence in him and a reflection upon the integrity of himself and wife, and an insinuation that they would be guilty of repudiating their contract ; hut this defendant insisted upon a release duly signed and acknowledged by the said Julia before a proper officer ; and afterwards, on or about May 16, 1844, the said Moses produced a lease executed by him and his said wife and duly acknowledged by the said Julia before one of the Masters of this Court; which said release is of the tenor and effect following: “ Know all men by these presents, that we, Moses Bigelow and Julia Ann Bigelow his wife, both of &c., the said Julia being the daughter of Samuel Fowler, late of &c., deceased, and called Julia in and by his will, do hereby confess and acknowledge that we have had and received of and from Elias L’Hommedieu and Samuel Fowler, acting executors of said will, $700 in full payment and satisfaction of all legacy and legacies, distributive share and shares of the personal estate of said deceased to which we or either of us are or is or may ho entitled by law under the said will^ except the legacy and bequest in said will contained whereby the testator gave and bequeathed unto the executors thereof whatever sum or sums of money might, at the time of his decease, he due to him from Bigelow, Canfield & Ingraham, or from any of the individuals of that firm, in trust to and for the exclusive use and benefit of his said daughter Julia, to he paid upon her own order or receipt, and except, also, all the estate, right, interest, produce and profits which we the said Moses and Julia, or either of us, have or has or may have in the real estate of the said deceased or any part thereof which may he sold by the said executors by virtue of the said will. In witness whereof, &c., this 13th of May, 1844. Signed, sealed and delivered in the presence of J. C. Pennington.”</p> <p>That this defendant, on the delivery to him of the said release, delivered to the said Moses, in the presence of tho complainant, the note of this defendant for the said sum of $700, which was received as payment of the said sum, and has since been paid by this defendant; and at the request of the said Moses transferred and delivered the said notes and claims pursuant to the proposition of the said Moses and the said agreement, and also by tho appointment and direction of the said Julia, hereinafter recited. And this defendant further states that, as the said codicil related only to the interests of the said Julia in the residue of the said personal estate and to the household property, and that, having adjusted the claim of the said Julia in the manner aforesaid and obtained a full release and discharge of the said interest, and having also made a satisfactory arrangement with their mother about the said household property, the said residuary legatees were advised and believed that it was unnecessary to prove the said codicil; and, accordingly, proof of the same was not attempted.</p> <p>He says that the said release of the said' Moses and Julia was given by them with full knowledge of said Moses, and, as this defendant was informed by him and believes, with the full knowledge and consent of his said wife. And this defendant denies that the said release was procured by any threats or misrepresentations, concealment or deception of any kind by him to or upon the said Moses, either ^jirectly or indirectly; or that he ever withheld from said Moses or his said wife any information he possessed, or which either of them desired to receive of him, respecting the said estate; but he states, that he informed the said Moses, before the execution of the said release, truly, of the amount of the personal estate of said testator to the best of his knowledge and belief ; and he denies that he represented to the said Moses or any other person that the indebtedness of the said Jos. E. Edsall to the estate could not be collected because of the defense of usury which could be set up against the same, or any thing to that effect. He says he may and probably did tell said Moses, as in truth he might, that the indebtedness of the said Edsall to the estate was of very long standing and might probably be defeated by the plea of the statute of limitations, and that the transactions concerning the same were very loose and might be difficult to prove, and the amount uncertain if the said claim should be resisted.</p> <p>He denies that he ever made any misrepresentation to the said Moses respecting the bond and mortgage on the Franklin Furnace property; • but says he believes he did state to the said Moses truly what he supposed to bé the amount due thereon, giiice which time a. claim for an allowance -upon the said bond and mortgage has been made, by the owners of the equity of redemption, for an alleged deficiency in the quantity of lands conveyed by the testator to the mortgagors, and to secure a part of the purchase money for which land the mortgage was given.</p> <p>He submits whether the attempt of the complainant, and of the said Moses and Julia through the complainant, to repudiate the said release is not a fraud upon the executors and legatees; and whether the conduct of Bigelow in procuring the arrangement of the controversy about tbo said codicil has not the appearance of settled design and practice upon the executors and legatees to deceive and defraud them.</p> <p>He states that, although the complainant was present at the time this defendant delivered to the said Moses the said note for $700, and saw and knew, as this defendant believes, the nature of the whole transaction, yet he gave no notice to this defendant nor said a word to him about the said trust deed, or that he was a trustee or representative of the said Julia; nor was any intimation of that kind given to this defendant except what was to bo gathered from the said appointment, order or receipt made by the said Julia, in the words and figures following : “ Whereas Samuel Fowler, late of &c., deceased, made and published his will and thereby gave and bequeathed as follows : Item, 1 give and bequeath unto my executors whatever moneys may at my decease be due me from Bigelow, Canfield & Ingraham, or from any of the individuals of that firm, in trust and to and for the exclusive use and benefit of my said daughter Julia, to be paid upon tier own order and receipt; and whereas Moses Bigelow, one of the individuals of the said firm, was individually indebted to the said deceased in a large amount of money at the time of his decease, for which a judgment has been obtained in tlie Supreme Court, and, as collateral security for the said money so due from him to the said deceased, did assign, transfer and set over to the said Samuel Fowler, deceased, on the 22d March, 1843, six notes drawn by Benjamin Terry, payable at the State Bank at Newark to the order of said Bigelow and by him indorsed; one dated Newark, Nov. 12, 1842, at six months, for $208 08, and the remaining five dated March 18, 1843, one payable in four months, for $306 15 ; another at six months, for $592 87; another at eight months, for $592 87 ; another at ton months, for $592 87; and the other at twelve months, for $592 87, for which the said Moses now holds the receipts of said testator expressing the purpose for which the same were, assigned as aforesaid ; and whereas the said firm of Bigelow, Canfield & Ingraham.was also indebted to the said deceased, at the time of his death, in a large amount of money, and, as collateral security therefor, the said Bigelow, one of the individuals of the said firm, did assign, transfer and set over, on the 24th of April, 1843, the proceeds of S. S. Merriman’s note, due June 16, 1842, payable to the order of said firm, for $518 95, then in the hands of Bliss & Baldwin, Gainesville, Ala., for collection, and anote of Barrow & Wilson, dated St. Francisville, May 21,1842, payable to the order of said firm on the 6th February, 1843, for $422 15 ; and, on the same day, an order of J. W. Brunott, for the moneys he might collect on Collins & Baldwin’s two notes indorsed by M. L. Meeker, of about$708 each; and whereas the said notes and claims are now held by the executors, and for the purposes for which they were assigned as aforesaid, as per the receipts now held by the said Moses ; and whereas, by the force, operation and legal effect of the said bequest, the said Julia has become entitled to the said notes as collaterals to the indebtedness so bequeathed to her : now I, Julia Ann Bigelow, wife &c., and daughter &c., and the legatee in said will named, do hereby authorize,, empower, order and direct the executors of said deceased to assign and transfer all the aforesaid notes, claims and demands to Samuel H. Pennington, of &c. And I do hereby declare that, upon such delivery, this writing shall be a full and effectual receipt for the same from me, and a full and effectual discharge of the said executors therefrom. Witness &c.</p> <p>Signed, sealed and delivered in the presence of</p> <p>J. P. Pennington.</p> <p>JULIA ANN BIGELOW.”</p> <p>Upon which said appointment is indorsed the receipt of the complainant as follows:</p> <p>“ Received, Newark, May 16, 1844, of Samuel Fowler, of &c., one of the executors of Samuel Fowler, an assignment of all of the notes, claims and demands mentioned and described in the within order.</p> <p>(Signed) SAMUEL H. PENNINGTON.</p> <p>And from two other orders or receipts respecting the claims of the said testator against the said firm of B,, C. & I., or some of them, which had been bequeathed in trust for the said Julia ; to which orders or receipts, signed by the said Julia, dated May 7, 1844, he refers.</p> <p>He further says that the said Moses had, pending the negotiation about the said codicil, stated that the notes and claims by him transferred to the testator on account of his claims against said Moses and his said partners were collateral security for so much of the said claims, and as such, constituted a part of the trust property bequeathed to the said Julia. And at the time of the payment of the said $700 to the said Moses it was also so insisted; but this defendant then claimed and still claims that the said notes and claims so transferred to the testator were not collateral to the claim of said testator, but were taken as a payment of so much thereof; but this defendant believes, and was so advised, that if the said notes and claims were transferred according to the order of the said Julia and the request and desire of the said Moses, and a proper release and acquittance was executed to the said executors, it was of no consequence to them, nor to the legatees, whether the said notes and claims were considered as collateral security for, or a payment on said claims against the said Moses and his said partnership firm; and therefore, only, he consented to the recitals contained in the said receipts or orders; but this defendant expressly states that the said notes and claims constituted a part of the consideration of the said release, although at the particular desire of the said Moses it was not so expressed in the said release.</p> <p>He says that, after the settlement of the said claim of the said Moses and his wife to the residuary part of the personal estate, upon consultation with the said residuary legatees, it was by them thought advisable not to complete and fill the inventory of the personal estate until they should ascertain the amount of money due from said Edsall and upon the bond and mortgage on the said Furnace property and several other large and unsettled claims; hut the said inventory and appraisement, so far as the same could be made with certainty, and a schedule of all the assets and personal property which had come to the knowledge ,of this defendant, were kept among the papers of the said estate, and at all times accessible to and subject to the examination of all the said legatees and other persons interested in the said estate ; and no concealment of any kind was made or attempted in reference to any of the assets or property of the said estate.</p> <p>But he submits that the said Moses and his said wife, having received all the share of the said personal property due to them, and given their acquittance and release for the same, have now no right, by themselves or any other person for them, to call the executors in question respecting the same, or respecting the inventory thereof, or any proceedings relating thereto.</p> <p>But if, in the opinion of the Court, the said release should not be construed and taken to be an absolute bar of any further claim of the said Moses and Julia to the said personal estate, that then this defendant may be permitted to prove the said codicil, and that due and legal effect may be given to the same; and that the said notes and claims transferred in pursuance of the said agreement may be restored to this defendant, to the end that they may be applied in due course of administration according to the will; and that the said $700 so paid may be refunded to this defendant, or made a charge against the said Julia, to be paid and allowed out of the said claims bequeathed to her in trust as aforesaid; or that such order may be made respecting the said notes and claims as the court shall think equitable and just.</p> <p>The answer of the other executor is substantially the same.</p> <p>Testimony was taken on both sides; and the cause was heard on the pleadings and proofs.</p>

<p>.On the 16th of August, 1842, a final decree was made in this cause, reciting the report of a Master that there was due, on the 1st of August, 1842, to the complainants, on their mortgage, $16,021 51, and that the further sum of $7,459 17 would become due and payable to the complainants, on their said mortgage, on the 16th of October, 1842 ; and that there was due to Robert P. Bell, one of the defendants, on the 23d of April, 1842, for interest on his mortgage, $1,096 50; and that the further sum of $548 25 would become payable, for interest, on his said mortgage, on the 23d of October, 1842, and the like sum, for interest, every half year, until the principal of his said mortgage, $18,275, should become due, which would be on the 7th of June, 1855; subject however to the provisions therein mentioned touching the payment of certain rent to Mrs. Electa Jackson, wife of Jos. Jackson, and to the right of dower of Mrs. Rachel Canfield, wife of Israel Canfield, in case she survive her husband, as stated in the answer of said Bell; and that the same premises comprised in the mortgage of the complainants are also comprised in tho mortgage to the said Bell, except four acres, (describing it,) on which is a large brick dwelling house, late the residence of said Bell; and that the mortgage of the complainant’s is prior to the mortgage of Bell; and that a competent part of the premises mortgaged to the complainants could not, in the opinion of said Master, be sold to satisfy what has become due to the complainants and to Bell, without material injury to the remaining part thereof ; and that the whole of the premises mortgaged to tho complainants should be sold ; and that, in order to protect the respective equitable rights of the several purchaser's and owners in tho bill and answers in this cause mentioned in the said mortgaged premises, the same should be sold in separate parcels and in the following order, that is to say, that part of the premises so mortgaged to the complainants conveyed by said Bell and his wife to Jacob O. Drake, and by said Drake conveyed to the Stanhope Iron Company, excepting therefrom the following lots, the first excepted lot being the same that was conveyed by said Iron Company to Caleb Ayers', by deed dated February 8,1841, (describing it;) the 2d excepted lot being the same that was conveyed by said Iron Co. to Pierson & Williams, by deed dated May 1,1841, (describing it;) and the 3d excepted lot being the same that was convoyed by said Iron Company to Abm. L. Clark, by deed dated June 21, 1841, (describing it;) to pay and satisfy, in tho first place, the principal and interest due and to become due to the complainants on their said mortgage, with their costs; and, if any should remain, in the 2d place, the principal and interest due and to become due to the said Bell on his mortgage, with his costs ; and, if .any should remain, in the 3d place, tho costs of said Pierson & Williams ; and, in the 4th place, the costs of tho said Clark.</p> <p>And in case the said premises so mortgaged to the complainants, excepting thereout the brick house and lot above mentioned and the three last excepted lots, should not sell for enough to satisfy the principal and interest due and to' become due to the complainants on their mortgage, with the costs of the complainants and of said Bell, then to sell the 3d excepted lot, being the said lot conveyed by said Iron Company to said Clark ; and if the proceeds of this lot, in addition to the proceeds of the first sale, should not be sufficient to pay the principal and interest due and to become due to the complainants on their said mortgage, with their costs and Bell’s costs, then to sell the 2d above excepted lot; and if the proceeds should still be insufficient to pay the principal and interest due and to become due the complainants, with their costs and Bell’s costs; then to sell the first above excepted lot; and if the premises mortgaged to the complainant, excepting thereout the brick house and lot, should not sell for enough to pay the principal and interest due and to become due to the complainants, with their costs, then to sell said brick house and lot above described and which was excepted out of the conveyance by said Bell and wife to said Drake.</p> <p>And thereupon decreeing that the said report be confirmed ; and that the premises mortgaged to' the complainants, or so much thereof as should be sufficient, be sold in the' order aforesaid ; and that a ft. fa. issue, directed to Wm. N. Wood, one of the Masters in Chancery, to make sale, in the order aforesaid, for the purposes aforesaid.</p> <p>On the 11th of August, 1848, Edwin Post presented a petition, stating the mortgage given by Bell and his wife to the State Bank at Morris, and the mortgage given by Jacob O. Drake to the said Bell, being the mortgage mentioned in the pleadings and decree in the said cause; and that he, Post, has become a part owner of the said mortgaged premises ; stating the proceedings on the foreclosure bill filed by the said Bank, the report of the Master and the decree thereon; stating that, since the said decree and the issuing of the execution thereon, he has paid large sums of money thereon to the said complainants ; and has paid to Bell, on his-said mortgage, all the interest that was due thereon at the time of the said decree, and all that has since become due thereon; and that nothing will be due to Bell for principal until June 7, 1855 ; and that ho has, since said decree, paid Bell $600 on account of the principal of his mortgage, though no part of it was due ; that about $17,217 48 of principal, besides interest from April 1, 1848, remains due to the said complainants on the said decree, and $17,340 62 of the principal of Bell’s mortgage remains unpaid ; that the execution upon the said decree was issued to Wm. N. Wood, one of the Masters, to he executed as therein directed; and that the Master proceeded in the execution thereof until stayed by the order and direction of the said complainants, and has been so stayed by the said complainants ever since; That since the said decree he, Post, with the persons with whom ho has been associated, have expended in permanent improvements upon the mortgaged premises more than $100,000, and that the mortgaged premises are now worth more than double what they were worth at the time of the execution of the said mortgage to Bell.</p> <p>That the complainants are now satisfied to stay further proceedings on the said execution for the present, and to give the petitioner further time to pay the balance due thereon, and are willing and desirous that the said execution he stayed; and have so declared and represented to the said Master; hut that said Bell declares that he has an interest in the said decree which gives him the right to insist upon the execution thereof against the wish and desire of the complainants therein, notwithstanding there is nothing now duo to him on his said mortgage mentioned in the said decree ; and that Bell insists to the said Master, and has directed the said Master to proceed forthwith in the execution of the said writ oí fieri facias. That the said Master declares that he is unwilling to take any personal responsibility in the premises, and that it is the duty of the petitioner, if he desires a further stay of said writ of execution, to get the order and direction of the court therein; and that he will proceed forthwith to advertise and sell the said mortgaged premises, at the instance and on the request of Bell, unless he. has the direction of this court to the contrary; and that said Master has declared that he is about to advertise the sale of said mortgaged premises, having been directed so do so by said Boll; and that public notice at this time of a sale of said mortgaged premises would particularly injure the petitioner in his business, and greatly embarrass him in the prosecution thereof; and that the mortgaged premises are not liable to waste or destruction so as to endanger the security of said Bell; and that the petitioner is now engaged in making large and valuable improvements thereon by means of which the valiie of the premises will be greatly increased; and that Bell can have no pretense for insisting on the immediate execution of the said decree other than to obtain the payment of his said mortgage money long before it is due and payable; and praying the order of the court that the said Master desist from advertising the premises for sale until directed by the complainants or by the further order of the court; and praying the order of the court upon the said complainants and the said Bell to show cause, at such time and place &c., why the said execution should not be stayed until the order of the said complainants or of this court to the contrary; and that the Master, in the mean time, be directed to desist from proceeding on the said execution.</p> <p>On this petition an order to show cause was made pursuant to the prayer thereof, and that a copy of the order to show cause be served, within six days, on the said complainants and the said Bell, or their respective solicitors, and on the said Master.</p> <p>On the hearing of the motion, depositions were read establishing the material facts stated in the petition.</p>

The bill, filed Dee. 16,1845, is exhibited by Gershom Lambert, for the foreclosure of a mortgage, dated January 29,1844, given by William Hall and Catharine his wife to the complainant, to secure the payment of a bond of the same date given by Hall to the complainant, conditioned for the payment of $3,807 37 on or before Jan. 29, 1845, with lawful interest.

<p>A., B., C. and others were constituted a body corporate, with a certain capital to be divided into shares, and authorized to construct a rail or McAdamized road. A loan becoming necessary to complete the road, it was resolved, at a meeting of the Directors and stockholders, that the Company should borrow a certain sum. The money could not be borrowed on the credit of the Company, and A., B. and C. borrowed the money on their individual credit, and advanced it as a loan to the Company ; and the Company, to secure the repayment thereof, with interest, executed to A., B. and C. an obligation conditioned for the payment of said sum in five years, with interest semi-annually, and a mortgage of all the lands contained within the bounds of their road as located, graded, &c., and all the materials of which said road was constructed, and the appendages thereof, and all dividends, proceeds and profits which might thereafter be declared or accrue from the use of the road. And the Company, by a clause in the mortgage, covenanted, that the proceeds and profits arising from the road should be applied, in the first place, at the end of each half year from the date of the mortgage, to the payment of, the half year’s interest. And in order to indemnify A., B. and C. against more than their proportionate part of any loss that might accrue by reason of any insufficiency of the mortgaged property to pay the sum so loaned, certain other stockholders of the Company, together with A., B. and C., entered into an agreement under seal, by which the said other stockholders agreed with A., B. and C. that if the mortgaged property should be insufficient to pay the said sum and interest, so that any loss or deficiency should happen, each of them, and each of the said A., B. and C. should bear an equal portion of such loss or deficiency; and that if any of them should, before or at the time such loss or deficiency should be ascertained, become or be unable to pay his proportionate share thereof, then, such of them as should remain solvent and able should sustain such loss equally with the said A., B. and C. And they further covenanted and agreed to and with the said A., B. and C., that if the mortgaged property should prove insufficient to pay said sum and interest, so that a loss or deficiency should happen, then they, their executors, &c., would forthwith pay such sum to A., B. and C., their executors, &c., as would divide said loss or deficiency equally between such of them as remain solvent at the time such loss or deficiency should be ascertained ■ and that the said A., B. and 0., severally, should bear an equal part of such loss.</p> <p>The mortgage becoming payable and remaining unpaid, A., B. and O. filed their foreclosure bill, and obtained a decree for the sale of the mortgaged property; and it was sold by the Sheriff. The amount of the sales was insufficient to pay the mortgage ; and the amount of the deficiency was ascertained by and on the day of the sale. A., B. and C. filed their bill, charging, that certain of the parties to the said agreement (naming them) were, at the time when such deficiency was ascertained, unable to pay their respective portions thereof; and that certain other parties to the said agreement (naming them) remained and were solvent and able to pay their respective proportions of such deficiency, and were the only parties to the said agreement, other than the complainants, that remained and were solvent and able as aforesaid ; and these last named persons only were made defendants in the bill. The bill prayed that the defendants might discover whether they were solvent and able to pay tbeir respective proportions of the deficiency, or anypart and howmuch of their said proportions; and that they might be decreed to bear the said loss and deficiency equally with the complainants; and that if it should appear by the said discovery, or otherwise, that at the time when said deficiency was ascertained any or either of the defendants was unable to pay his proportion, then, that such of the defendants as then were solvent and able might be decreed to pay to the complainants their respective proportions of the deficiency.</p> <p>The construction of the agreement was held to be, that the loss which should accrue, either from the deficiency of the mortgaged premises or from inability in any of the parties to the agreement to pay their full proportion of the deficiency, should be borne equally by such of the parties to the agreement as should be able to boar an equal proportion of such whole loss with each of the complainants; and that, therefore, all the parties to the agreement, other than the complainants, should have been made parties defendants in the bill.</p> <p>If, upon the true construction of an agreement set out in the bill, subscribers to it who are not made defendants should have been made defendants, the defect of parties may be taken advantage of by demurrer, though the complainant, in his bill, has put a construction on the agreement which would make it unnecessary to make such subscribers defendants.</p> <p>Held, that the complexity of the said agreement, and the muí tiplicity of suits it might give rise to at law, wore grounds on which a court of equity might entertain a bill for the adjustment of the contribution called for by the agreement in one suit.</p> <p>One of the subscribers to the said agreement had died, after the amount of the deficiency was ascertained, leaving a will of which C., D. and®, were appointed executors. 0., in his individual capacity, was a complainant on the bill, andD. and B., the other two of the said executors, were made defendants as such executors.</p> <p>Held, that it was not necessary that C. should bo made a defendant as one of the said executors.</p> <p>A demurrer can only be founded on a fact or omission appearing in the bill. It cannot set up a fact or omission not appearing in the bill and thereupon demur.</p> <p>Held, that, the terms of the said mortgage required a sale under it of whatever could bo sold under it; and that such sale and the proceeds of It fixed the amount of the deficiency.</p>

<p>A. devised real estate to his widow for life, and ordered it to be sold after her death, and the proceeds to be equally divided among the children of his brothers and sisters A. had three brothers and one sister. Two of his nephews and one of his nieces had died before the making of the will, leaving issue.</p> <p>Held, that such issue were not entitled to any share.</p> <p>One of the nieces died after the testator’s death, and in the lifetime of the widow, leaving a will by which she devised her interest.</p> <p>Mid, that she had a devisable interest.</p>

The bill, filed August 22, 1848, states that, on or about June 4,1846, the complainant’s husband, Charles Hamilton, since deceased, was, as she believes, seized in fee of a certain house and lot in Perth Amboy.

<p>The Oiphans’ Court opened the accounts of Executors on an allegation of fraud or mistake, and determined that a certain sum, $2,000, did not belong to the estate, and should not hare been brought into the account by the Executors, and struck it out, and also struck out a portion of the commissions. On appeal to the Prerogative Court, the decree of the Orphans’ Court striking out the $2,000 was reversed.</p> <p>Jleldy that the commissions struck out might be restored.</p>

Tlio bill, filed Feb. 1, 184.9, by Robert R. Freeman, for himself, and by Sarah B. Freeman and Matthew F. Freeman, infants, by the said Robert R. Freeman their… Held: at the time he recovered said judgment, a mortgage upon a valuable mill property in Somerville as security for the same debt, given to him by John I. Gaston, who at that time held the title to said property in trust for the said Wall, Nevius and Freeman, for whose use the said money was originally borrowed.

<p>“ The Trenton Delaware Dalis Company,” on the 2d of April, 1833, made two mortgages to the Trenton Bank, for moneys borrowed; one for $4,000, and the other for $6,700; and on the 22d May, 1834, the Bank recovered a judgment against the Company for $8,000, other money loaned by the Bank. On the 1st October, 1835, there was duo to the Bank for interest on the said mortgages and judgment $2,084 75. On that day the Company proposed to the Bank that if the Bank would make them a further loan, sufficient to pay said arrears of interest and a principal sum due to S. C., the Company would assign to the Bank, as security for the same, the rents reserved on certain perpetual leases of water made by the Company. The Bank accepted the proposition; and the Company made their note to the Bank for the $2,084 75, payable three days after date, for the said interest, and the Bank loaned to the Company the further sum of $$, 504, and took the note of the Company therefor, payable three days after date; with which sum the Company paid to*S. C. the said principal sum due him; and the Company executed to the Bank an assignment (so called by the parties,) of three perpetual leases of water power made by tho Company to certain individuals at certain stipulated rents to be paid by the lessees to the Company. The Company afterwards became insolvent; and Receivers were appointed; and in Deb. 1844, by virtue of a decree of the Court and an act of the Legislature, the R eceivers sold the property and chartered rights and privileges of the Company free and clear of all incumbrance. The Bank afterwards transferred the said leases to the petitioners, and all rents due and to grow due thereon, and assigned them the said note of $2,084 75.</p> <p>Held, first, that the rent accruing on the said leases subsequent to the sale by the Receivers belonged to the purchaser at the Receivers’ sale; that the so-called assign-7/ient of leases by the Company, the lessors, was a mere authority from the Company to the Bank to receive the rents; which ceased on the appointment of Receivers ; and that it created no incumbrance on the property of the Company in the hands of the Receivers.</p> <p>Second, that the rents accruing due after the appointment of the Receivers belonged to the Receivers, for the benefit of the creditors of the Company.</p> <p>Third, that the rents which had become due before the appointment of the Receivers might bo considered as appropriated to the purpose for which the Company authorized the Bank to receive them, though they remained unpaid by the lessees.</p> <p>As a general rule, the taking of a note from a mortgagor or judgment debtor for interest due oii the mortgage or judgment is not a payment of the interest if the note be not paid.</p>

Bill filed July 11,1843, by Win G. Williams and Margaret bis wife, Sanford F. Madden and Mary bis wife, John Knoff, John Fisb-and Sally bis wife, Hezekiah Oliver Cantwell and Mary Ann bis wife, Margaret Randall and Lydia Randall of tbe county of Coshocton, in tbe State of Ohio, stating that John.

<p>T. gave two mortgages, one to M. and the other to R. of a tract of land of 18 acres; and afterwards convoyed to A. half of the tract, and thereupon A. gave to T. an obligation that ho would pay, as part of the purchase money for the said nine acres, the said two mortgages to JI. and R. A. afterwards gave to B. a bond, and, to secure it, a mortgage on the nine acres he had bought of T., as additional security for money for which B. held A/s mortgage on other lands. T. afterwards conveyed the residue of the tract to C., with full covenants of warranty, and at the same time asssigned to C. the said obligation of A. to pay the two mortgages held by M. and R. JI. filed a bill for the foreclosure of his mortgage ; making R. a party defendant. B, was not made a defendant, he not having got his mortgage from A. when the bill was filed. A decree was obtained in that suit for the sale of the whole tract, to satisfy the mortgages of M. and R.; and a fi. fa* for sale was issued to the Sheriff. B« then filed ids bill, stating, that the half remaining in T. after he had sold half to A. was sufficient to pay the mortgages to JI. and R., and submitting’ that the half so remaining in T., and which was afterwards conveyed bf T. to 0., should be first sold; and prayed an injunction stayingproeeedings on the fi. fa. which had been issued. The injunction was allowed.</p> <p>On answer and motion to dissolve the injunction, it was held that, as between C. and A., the half so convoyed to A. ought to be first said, to pay the mortgages held by M. and R.; and that the equity was the same between C. and B., the mortgagee from A.</p> <p>Jleld, that A. was not a competent witness to prove payment of his said obligation to T., though B. had released him from personal liability on his said bond to B. and agreed to rely only on the said motgage given by A. to B.</p> <p>Jleld, that T., on being released by C. from his covenants in his deed to 0., was a competent witness to prove that B. had notice, before he took his mortgage from A., that* A. had given his obligation to T. to pay the mortgages held by M. and R.</p>

<p>The bill, filed in 1848, states, that Joanna DeGroot, about 1817, was seized and possessed of a certain tract of land containing about 810 acres, (describing it,) bounded &c., and on the south by lands now in the occupancy of the said Joanna; and that the said Joanna, who is the mother of the complainant, and with whom the complainant was living at the time of making the agreement mentioned in the bill, and hath continued to do so from thence hitherto, about the year 1817, as well in consideration of the natural love and affection which she bore the complainant as for the benefits she would derive from the improvements the complainant proposed to put on said lands, agreed with the complainant that he might enter upon and take possession of the said tract of land and make improvements thereon, and that, in consideration .of so doing, the complainant might possess and enjoy the said tract of land and have the rents, issues and profits thereof to his own use and benefit, for and during his natural life.</p> <p>That before the time of making said agreement, and before the complainant took possession thereof as after mentioned, the said tract was in a low state of cultivation and unproductive; the fences out of repair and going to waste; no dwelling house or barn or other buildings on the same ; and that, about the year aforesaid, the complainant entered upon and took possession of the said tract, and commenced to cultivate, and hath since, hitherto, continued to cultivate the same ; that he hath built a good substantial farm house, barn and other outbuildings thereon ; repaired old and erected new fences wherever the same were wanting; planted fruit trees and made other improvements; wjiicli have greatly advanced the value of the said property. That those improvements have been made at the sole expense of the complainant, and have cost him at least $3000.</p> <p>That the complainant has always, since he first entered into possession of the promises, hitherto, by himself and his tenants been in the actual occupancy and possession of the same, and taken to his own use the rents, issues and profits thereof.</p> <p>That one John Scott, senior, is now, as the tenant of the complainant, in the possession and occupancy of the dwelling house, barn, garden and curtilage belonging to said tract, and the complainant is in possession and occupancy of the residue thereof.</p> <p>That the said Joanna, on or about Sept. 5, 184C, conveyed, as the complainant has been informed and believes, by deed, the said premises to Naomi C. E. Wright, the wife of Edwin R. V. Wright, her heirs and assigns; the said Naomi being the daughter of the complainant and the granddaughter of the said Joanna; and that the said conveyance was made upon the consideration of natural love and affection. But the complainant charges, that the said deed was made and accepted with full knowledge by said Naomi and the said E. R. V. Wright of the rights and interests of the complainant in the premises ; and that it was understood and agreed between the said Joanna and the said Naomi, and as he believes, with the said E. R. V. W., that the same was not to take effect during the lifetime of the complainant, so as to affect or interfere with his rights and interests in said premises during said period ; and that the complainant was to have the use and possession of the premises during his life.</p> <p>That the said Joanna is aged 84, or thereabouts, and confided in said E. R. V. W., who is a lawyer by profession, to draw the said deed ; and if the said deed does not, as the complainant believes it does not, reserve the use of the said lands to the complainant during his life, i't was drawn in violation of the express understanding and agreement made by the said Naomi and, as the complainant believes, by the said E- R. V. W. also, with the said Joanna, that the complainant should possess and enjoy the same to his death; and is a fraud upon the said Joanna and the complainant.</p> <p>That the said E. R. V. W. and the said Naomi have lately threatened to turn the complainant and his said tenant out of possession ; and that, before.the 1st of May last, the saidE. R. Y. W. caused to be served upon the complainant a notice in writing requiring the complainant to deliver up to him on the 1st of May the possession of said premises, or that he would hold the complainant liable as a trespasser.</p> <p>That the said E. R. V. W. and his said wife have lately brought two ejectments; one against the complainant, and the other against the complainant’s said tenant, John Scott, senior.</p> <p>The bill prays that the said deed may be corrected, in conformity with the alleged agreement, so as to reserve to the complainant a life estate in the premises ; and that the said E. R.</p> <p>, V. W. and wife may be perpetually injoined from prosecuting the said ejectments, and from commencing any other action, during the life of the complainant to turn him or his tenants out of the possession of the premises, or in any way to disturb his enjoyment thereof ; and for further and other relief.</p> <p>Wright and his wife are the only defendants.</p> <p>A preliminary injunction was allowed,</p> <p>The defendants answered the bill.</p> <p>They admit the seizin of the said Joanna as stated in the bill; and that she and the complainant have lived together in the-same house and on the same farm, as stated in the bill.</p> <p>They deny that they had any knowledge or information, except by tbe bill, that any such agreement was entered into between the said Joanna and the complainant as in the bill stated, or any agreement whatever by which the complainant was entitled to enjoy said tract of land for his natural life or for any other time, except as the tenant at will; hut that they are informed and believe, and therefore aver, that no such agreement was ever made or entered into between the said Joanna and the complainant.</p> <p>They say they are ignorant of what was the state of cultivation of the said tract at and before 1811, or tbe condition of the fences thereon; hut that they have been informed and believe that there was then no house or barn upon tbe same, and that a house, barn and other improvements have been put upon the same under the superintendence of the complainant; hut that they do not admit or believe that they cost $8,000, or were made at the proper cost of the complainant; but they aver that at and after 1811 the said Joanna was a widow possessed of considerable property, consisting of her homestead farm, of which the tract described in tlie bill formed a part, and of money at interest, and of a house and lot in tbe city of New York, rented out. That the complainant, being her only child, and having at that time her entire confidence, was entrusted by her with the management of all her property, collected and received her interest and rents and the produce of her land, and therewith improved the property at his discretion, as these defendants are informed and believe, in the expectation that at tbe death of his said mother he would succeed to her whole estate, real and personal, and without any agreement or understanding whatever for a life estate or any other estate in said lands made or entered into with the said Joanna. And they aver and. insist, that the complainant received of tho moneys of the said Joanna, in manner aforesaid, not paid over by him to her or otherwise appropriated to her use, more than all the moneys expended by him in the improvement of the said tract of land.</p> <p>They admit that the complainant has been, since about 1811, in possession of said tract, by bimsolf or his tenants ; but only, as they insist and aver, by permission of and as tenants at will under the said Joanna, who permitted him to take the rents, issues and profits thereof, or the greater part of the same, to his own use; she herself residing upon and being in possession of the same jointly with him.</p> <p>They admit that John Scott, senior, is in possession of part of said land in the bill, described, as tenant of the complainant, and of the dwelling house, barn and garden thereon.</p> <p>They say that on the 24th of March, 1844, and for several years before that time, the said Joanna was and had been dissatisfied with the complainant on account of his conduct towards her and his mismanagement of her property, and had withdrawn her confidence from him, and had determined to convey her property, or the greater part thereof, beyond Ms control, unto her grandchildren, the children of the complainant, upon condition and in consideration of her said grandchildren securing to her a full, ample and respectable support and maintenance during her natural life. And that, in pursnance of said determination, she did, on the 24th of March, 1844, by deed of that date, with full covenants of warranty and againát incumbrances, convey to the defendant Naomi a house and lot in Lispenard street, New York, known as No. 234 on the Lispenard map. And that, at the time of the execution and delivery of the said conveyance, and as the consideration thereof, the defendant E. R. V. Wright, jointly with Samuel E. DeGroot, a grandson of the said Joanna, to whom, in pursuance of her said determination, she had also conveyed a part of said real estate, executed and delivered to the said Joanna a deed of covenant, bearing even date with the said conveyance, in the words and of the tenor following : “ In consideration of the homestead farm being conveyed to me, Samuel E.'DeGroot, by my grandmother, Joanna DeGroot, being the place on which she now lives, by deed bearing even date herewith, and in consideration of the house and lot belonging to the said Joanna DeGroot being conveyed to her granddaughter Naomi, my wife, now therefore we the said Samuel E. DeGroot and Edwin R. Y. Wright do covenant tó and with the said Joanna DeGroot, for ourselves and our heirs, jointly and severally, that we will, during her natural life, 'furnish and provide or pay to the said Joanna DeGroot a full support and maintenance, or such sum of money annually as she shall consider equivalent for the purpose of supporting and maintaining hor, in as full, ample and respectable a manner as she has always lived.” In witness &c.; dated March 26, 1844. And that the said house and lot in New York, so conveyed to said Naomi by the said Joanna, as part of her share in the distribution of her estate and for the consideration of the covenant aforesaid, was afterwards discovered by the said Joanna to have been incumbered by means of the complainant and the confidence reposed in him by her, to a large amount; which was not known to the said Joanna at the time of such conveyance. She did, therefore, for the purpose of carrying out her original intention, and of making good to the said Naomi the loss occasioned by said unexpected incumbrance, and of satisfying the breach of the covenant in said deed, by deed dated Sept. 5,1846, convey to the said Naomi, in fee simple, the lands in the said bill of complaint described. But the defendants, each for himself and herself, deny that they had any knowledge, intimation or belief, at the time of the making and delivering said deed, that the complainant had any right or interest in said lands, either at law or in equity, for his natural life or for any other term whatever; or that it was understood and agreed between the said Joanna and the said Naomi that said deed was not to take effect during the lifetime of the complainant; or that it was any part of the agreement or understanding on which said deed was delivered that the complainant should have the use and possession of the premises during his life.</p> <p>They admit that said Joanna is of about the age mentioned in the bill; and that the defendant E. R. V. W. is a lawyer, and was intrusted by her to draw said deed, and did draw the same, and that the same is an absolute conveyance in fee simple; but they deny that the same was drawn in any way or respect different from or in violation of any understanding or agreement between the said Joanna and these defendants, or either of them, or different from her understanding, wishes or instructions •, or that the same was in anywise a fraud. And they aver it was drawn according to her desire and instructions.</p> <p>They insist that, if any such agreement was made between the said Joanna and the complainant as is stated in the bill, which they do not admit or believe, it was not in writing or signed by tbe said Joanna, and that therefore, by tbe act for tbe prevention of frauds and perjuries, any' estate which the complainant could or would acquire in said premises under such agreement, if made, would have been an estate at the will, of said Joanna and her assigns only, which estate at will, if any existed, was terminated by these defendants by their notic'e to quit, in the bill stated to have been served. And they pray that they may have the same benefit of the said statute and the facts above set forth relative thereto as if the same had been pleaded.</p> <p>On this answer, a motion was made to dissolve the injunction.</p>

<p>A bill had been filed against “ The Trenton Delaware Falls Company,” on the ground of insolvency, on which Receivers had been appointed, and a sale made, by the Receivers, of all the real estate of the Company, free from all incumbrances. The proceeds were ordered to be paid in discharge of incumbrances, according to the priority thereof. The Trenton Bank held mortgages on all the real estate of the Company. The Falls Company, after giving the mortgages to the Bank, and before the filing of the said bill, sold a part of their real estate, all of which was so mortgaged to the Bank, to B. and H. The Bank bought at the Receivers’ sale all the real estate then held by the Falls Company; and received from the proceeds of the sale the full amount of their incumbrances; and the proceeds of the sale were not sufficient to pay P. T. S. the amount of a judgment obtained by him subsequent to the mortgages held by the Bank, and subseqyent to the sale by the Falls Company of a part of their real estate to B. and H. P. T. S. filed a bill against B. and H., to compel them to contribute towards the payment of his judgment so much as would have been a just proportion of the amount of the mortgages held by the Bank to be paid out of the lands so sold to B. and H., and which were covered by the mortgages to the Bank. After the filing of this bill, and after answer and replication filed and evidence taken, P. T. S. caused an execution to be issued on his judgment, and caused a sale to be made by the Sheriff of all the real estate of the Falls Company which had been so sold by the Receivers; under the idea entertained by his counsel that the said sale by the Receivers was void. At this sale the Bank bid a sum sufficient for the payment of the judgment of P. T. S.; and the Sheriff struck off the property to the Bank, and gave the Bank his Sheriff’s deed for it; and the judgment of P. T. S. was paid with the money received by the Sheriff from the Bank" on this sale. A motion was then made, on behalf of B.'and H., that the said bill of P. T. S. he dismissed with costs. The court dismissed the hill without costs.</p>

<p>A bill by a subsequent mortgage against the mortgagor and prior mortgagees neither admitted nor denied the prior mortgages; and its prayer was, that the mortgagor bo decreed to pay the complainant’s mortgage, or that, in default thereof, the mortgagor and prior mortgaees be barred and foreclosed from all equity of redemption; and that the mortgaged premises be sold, and that out of the proceeds the complainant might be paid the amount of his mortgage; and for such other and further relief &c. A demurrer filed by the prior mortgagee was allowed.</p> <p>A bill by a subsequent mortgagee, making a prior mortgagee a party, may pray a sale of the interest mortgaged, a sale subject to the incumbrance of the prior mortgage; or, that he may be permitted to redeem the prior mortgage and have the premises sold to pay such redemption money and his own mortgage; or, that the mortgaged premises may, if the prior mortgagee consent thereto, he sold, and that out of the proceeds the mortgages may be paid according to priority.</p> <p>A prior mortgagee is not bound to notice the bill of a subsequent mortgagee filed on his mortgage, though he is made a defendant in the bill.</p> <p>If, upon a bill by a subsequent mortgagee as usually drawn here, the prior mortgagee takes such a course, either by answer, or by putting in his mortgage before the Master, as shows his consent, the mortgaged premises will be ordered to be sold, and the mortgages directed to be paid according to priority.</p>

<p>A person employed by another in a manufacturing establishment at a salary of $500 a year and one-fourth of the profits is not a partner.</p> <p>A. employed B. in a manufacturing establishment at an annual salary of $500 and one-fourth of the profits, and B agreed that A might use his name as a partner in the business if A. should deem it advisable. The name of A. & Company was assumed. Afterwards, A being about to create a lien on property in the establishment, B gave a written certificate in which he stated that he, “ one of the firm of Colt and Company,” did not possess any interest in the property used by the Company, and did not claim any right in or to the same on account of his being a partner of the Company or on any other account. A. thereupon gave a mortgage on property in the establishment to secure acceptances of drafts to be drawn in the name of A. and Company. B. afterwards filed a bill against A. stating that he was a partner, and charging that A. had received large sums and applied them to his own use, and kept no proper accounts thereof, and refused to account to the complainant; and prayed an injunction, and the appointment of a Receiver. The injunction was allowed.</p> <p>On answer, the appointment of a Receiver was denied; and the injunction was dissolved.</p>

The snbpena in this case was returned the first day of the present term, June term, 1849. At the time of the service of the subpena a notice was, also, served on the defendants of an application to bo made, on a day in this term more than ten days after the service of the subpena, for a commission for tbe examination of a witness 'de bene esse.

<p>An injunction was applied for restraining the defendants from continuing the working of steam engines in a factory near the dwelling house of the complainant and other buildings owned by him and occupied by his tenants, on the grounds that the steam engines, when in operation, shook and injured the said buildings, and that the business carried on in the said factory was a nuisance to the neighborhood. It appeared, by affidavits read in opposition to the motion for an injunction, that the complainant had brought an action at law against the defendants for the same alleged injury, and that the jury had found a verdict for the defendants. The injunction was denied.</p>

A bill was filed by Ezra Parkhurst against Josiah F. Muir for the dissolution of the partnership of which they were the only members ; and for an account of the partnership transactions; and for the appointment of a receiver. Nothing was said in the bill of any settlement having ever been made between them. The answer set up a settlement between them up to a certain time, and gave an account of the partnership transactions since that settlement.

<p>Executors, in several partial accounts which had been exhibited to the Orphan’s Court, had accounted separately; and no objection had been made to that mode of accounting, nor any effort to mate the executors answerable jointly; and there was no evidence that either of the separate accountants ever agreed to become liable for what had been received by either of the others; nor evidence that the executors assumed the uncollected securities and agreed to account to the residuary legatees for the amount of them.</p> <p>Held, that the executors were not jointly responsible.</p> <p>Partial accounts of executors exhibited and allowed by the Orphans’ Court will not prevent a person interested in the estate from bringing the executors into this court , for a final settlement.</p> <p>As long as the estate is not finally settled, this court may direct a statement of the whole account from the beginning, and take its own measures to compel the payment of the moneys found in the hands of the executors by such final account, notwithstanding the Orphans’ Court have, on partial accounts, directed the distribution of the balances thereby found to be in the hands of the executors.</p>

<p>On the 12fch November, 1847, Hezelriah Kelly filed a bill, under the act relating to insolvent corporations, against the Neshanic Mining Company.</p> <p>The bill charges, that the said Company have suspended their ordinary business, from November 9th, 1847, (having before charged that the company ceased paying &c, from August 2d, preceding;) and that the company, as the complainant has heard and believes, are insolvent.</p> <p>That the company, on the 13th of May, 1847, employed the complainant as a superintendent, at the rate of $1,500 per annum, which sum, with traveling expenses, the company agreed to pay monthly. ,</p> <p>That the Company have not paid him monthly; but that they are indebted to him in $600 for his services and traveling expenses.</p> <p>That the Company are indebted to him in the further sum of $400, paid, laid out and expended for the use of the company, at their request, in the purchase of tools and the payment of laborers ; which said sums were paid and advanced by the complainant from September 1, to November 8, 1847.</p> <p>The bill states that the Company are indebted to divers persons, (naming them,) in divers sums, amounting in all to $4,494 43, including a debt stated to be due to Jacob Rockafellow of $2,118 97.</p> <p>That J. H. Bill pretends that he has a claim against the Company, for money advanced and services rendered, of $500.</p> <p>That the value of the real estate of the Company is $3,000 ; the value of the engine and machinery $750 ; the value of the pump, tools, &c, $160; which is all the property and assets of the Company, as far as the complainant knows and believes, amounting to $3,910.</p> <p>The bill prays a discovery of the property of the company; and that the complainant and the other creditors and stockholders of the company who may come in may be paid; and that the company be injoined from receiving debts and from transferring debts or property, and from exercising their franchises; and that a receiver be appointed.</p> <p>The injunction prayed was allowed. On the 22d March, 1848, a demurrer was filed to the bill, by the company.</p> <p>On the same day, Janet Blair filed a bill against the company for the foreclosure of two mortgages on their real estate; one dated April 201847, given by Anthony Dey to the said Janet Blair, to secure the payment of a bond, of the same date, given by Dey to her, conditioned for the payment of $500 on or before the 1st of July then next, with interest from and after the 1st of May then next; which mortgage is stated to have been acknowledged on the 3d June, 1847, and to have been recorded June 15, 1847; the other mortgage dated the same 20th of April, 1847, given by Anthony Dey to the said Janet Blair, to secure the payment of a bond, of the same date, given by Dey to her, conditioned for the payment of $2,000 on or before the 1st of May, 1848, with interest from the 1st of May 1847; which last mentioned mortgage is stated to have been acknowledged on the 24th of April, 1847, and to have been recorded on the 28th of that month.</p> <p>This bill states, that the said complainant, Janet Blair, has been informed that, previous to the execution and delivery of the said two mortgages, the said Dey had executed a mortgage on the same lands to Jacob Rockafellow, for $2,000, dated during or about some day in April, 1847; and the said Janet admits that, if the said mortgage is any lien, it is a lien prior to her said mortgages. But this bill says that' the whole sum due Rockafellow on his said mortgage was $2,006 67 on the 19th May, 1847, when that amount was lawfully tendered to the said Rockafellow, in specie, in payment of his said bond and mortgage. That after the execution and delivery of the before mentioned mortgages the said premises were conveyed to the Neshanic Mining Company by said Dey and his wife.</p> <p>This bill states, that the said premises are in such a condition that they cannot be diyided without materially injuring their value and jeopardizing the securities thereon; and prays that the whole premises may be sold.</p> <p>Subpena is prayed against Rockafellow, Dey, and the Neshanic Mining Company.</p> <p>On the 25th May, 1848, the petition of John G. & Joseph H. Reading, Jacob Rockafellow, and five others therein named was presented, stating the filing of the bill of Hezekiah Kelly; that the Company are indebted to the petitioners as follows : To the said Readings, they being partners, in $206 92 ; to Stinemire & Sehamp in $21 92 ; to Jacob Rockafellow in $45 68, besides the amount due on his mortgage for $2,000; to Charles Green in $90 75 ; to John Rockafellow in $44 25, and to Thomas Gray in $84 49; these being the petitioners named in the petition. The petitioners pray to be permitted to come in under the bill filed by Kelly. The petition states that the said Company suspended their ordinary business on the 9th of November, 1847, and that their business had since remained and still was so suspended and stopped; and that the machinery and tools of said Company are rapidly becoming spoiled for want of any care and attention.</p> <p>That since the argument of the motion for the appointment of a receiver on the 27th November, 1847, and on the 22d May, 1848, Janet Blair has filed a bill, setting forth &c, (stating the contents, or part thereof.) That since the argument of said motion and since the service of the injunction on the Company, and notwithstanding, a writ has been issued out of the Supreme Court wherein one Marmaduke Moore was plaintiff, against the said company, in trespass on the case, returnable the first Tuesday in January 1848, returned with the following indorsement thereon: “ Appearance is signed for the defendants by order of the Company by Wm. Pennington, Attorney of Company.” And that, by the consent of the said defendants, and by their confession, judgment was entered against them in said suit on the 5th April, 1848, and the damages assessed by the court at $1,090 50 besides costs; for which sum judgment was entered against the said defendant, in favor of said Moore, by virtue of the following confession of judgment on the bottom of the said assessment: “The above are agreed to as the amount of damages in this cause; by order of the defendants, Wm. Pennington, Attorney for defendants, April 4th, 1848.” Said assessment setting out the claim to be for cash advanced by the said Moore to the said Company on the 29th October, 1847, together with the interest thereon; the said Moore making no affidavit that the same was justly due him, nor any other person making such affidavit for him.</p> <p>The petitioners say they are informed and believe that the declaration in the said cause was not brought to the office of the' clerk of the Supreme Court until after the 3d Tuesday in March, 1840 ; but that the same is marked filed as of the proper time for filing the same, by the collusion and consent, as the petitioners believe, of the said defendants in said suit.</p> <p>That execution'has been issued on the said judgment, to the sheriff of Hunterdon, commanding him to make the amount of said judgment out of the property of the said complainant.</p> <p>The petitioners state, that neither the said mortgage for $2000 to Janet Blair mentioned in the said bill, nor the said claim of Marmaduke Moore for cash advanced, was mentioned or inserted in the schedule made by J. H. Bill, marked exhibit A. in this cause, of the liabilities and assets of said company; nor are they mentioned or included in the affidavits of said J. H. Bill made in this cause, though in one of said affidavits he declares that his position in the company has enabled him to understand with accuracy its financial condition and the state of its accounts with individuals. Neither has said Dey, in his affidavit concerning the affairs of the company, mentioned either the said $2000 mortgage to Janet Blair or the claim of Marmaduke Moore for cash advanced; but the said J. H. Bill has mentioned in his schedule the mortgage of $500 to Janet Blair ; all which affidavits were read before the court on the argument of the motion aforesaid for a receiver.</p> <p>The petition prays an injunction restraining the sheriff of Hunterdon from selling the property of the said company by virtue of the said execution in favor of said Moore, and from all other proceedings thereon, until the further order of the court; and that a receiver be appointed to receive and take charge of all moneys, goods and lands of the said Neshanie Mining Company, for the benefit of the creditors and stockholders of the said company.</p> <p>The petition was subscribed and sworn to by J. H. Reading, Benjamin Stinemire, Jacob Rockafellow, Charles Green, John Rockafellow and Thomas Gray.</p> <p>The injunction prayed in this petition was allowed, and a receiver appointed, on the the 23d May, 1848.</p> <p>On the 6th June, 1848, a supplemental bill was filed by Hezekiah Kelly and the said petitioners against the said company and Janet Blair, Marmadukc Moore, and Joseph II. Bill, stating the original bill filed by Kelly, and the filing of the said petition; that an injunction issued on the said bill of said Kelly; that an injunction issued on the filing of the said petition, pursuant to the prayer thereof; and stating the appointment of a receiver. (Amplius B. Chamberlain.) And showing, by way of supplement, that, since the filing of the original bill by Kelly, Janet Blair had filed her bill, (setting forth the contents thereof). That the complainants have been informed, believe and expressly charge, that the whole price or consideration paid or agreed to be paid by Dey for the premises was $4000 ; $2000 of which he paid in cash, and executed to Jacob Rockafellow, of whom he purchased the premises, a mortgage on the said premises, dated April 20, 1847, recorded April 27, 1847, to secure the payment of the remaing $2000. That at the time or before the conveyance of said premises by Dey to the Neshanie Mining Company Janet Blair was paid the sum of $1500 and received and took a mortgage of $500 on the said premises, in full satisfaction of her said mortgage for $2000. That said Dey, in his deed of the premises to the Neshanie Mining Company, recorded &c., has fully set out all the incumhrancés upon the said premises which remained due and unpaid at the time of the making of said deed, and has therein stipulated for the payment of the same by the said company; which stipulation the said company have thereon agreed to, and in testimony thereof, have thereto affixed the common seal of the said company; and the signature of Isaac A. Johnson, the president of the said company, is thereto subscribed. But that the said mortgage to Janet Blair for $2000 is not therein mentioned or referred to, because it had been fully paid and satisfied in manner aforesaid.</p> <p>This bill charges that the mortgage to Janet Blair for $500 was not executed and given on the 20th of April, 1847, but that the same was not executed and given before May 30, 1847.</p> <p>He states the judgment of Moore against the company, entered on the 5th of April, 1848, for $1090 50, besides costs, and that an execution issued thereon to the sheriff of Hunterdon ; and charges that it was obtained by the collusion and consent of the company, notwithstanding the injunction restraining the company from incumbring or otherwise disposing of any of the real estate of the company; stating the facts stated in the said petition in relation to the said judgment. It there charges that no money was advanced' by Moore to the said company on the 29th October nor at any other time; and that the said judgment is fraudulent, and was obtained by the collusion and consent of the said company to avoid the injunction issued, by the court, and to incumber the property of the said company, and to prevent the complainants from obtaining the moneys due them from, the said company, and to cover and fraudulently protect the property of the said company from their creditors; the company having suspended &c. on the 9th of November, 1847, and having remained so suspended, and no money having been laid out and expended by them since that time.</p> <p>That the defendants produced and offered as evidence in this cause the affidavit of J. H. Bill, with a schedule therewith of the liabilities and assets of the said company, which is marked exhibit A. in this cause, dated November 27, 1847, in which the said bill declares, &c. (as before stated.) That the said schedule and affidavit do not include or mention the mortgage for $2000 pretended by Janet Blair to be still existing, nor the said judgment obtained by Moore, nor any sum as being due to bim; nor is his name mentioned in said schedule and affidavit.</p> <p>That the whole of the debts due and owing at that time by the said Company, and therein particularly mentioned and set forth, still remain unpaid.</p> <p>That said J. H. Bill further stated in his said affidavit that he was, and had been since May 18th then last, the clerk and general agent of the said Company, and had been during the greater part of that time at their works, his business being to take charge of the buildings, and to pay out the funds of the Company, and generally to attend to the business of the Company; and that his position in the Company had enabled him to understand with accuracy its financial condition and the state of its accounts with individuals.^</p> <p>That the defendants produced and offered as evidence an affidavit in the cause made by A. Dey, by whom the said mortgage of $2,000 was given to Janet Blair, in which affidavit he states that he has no doubt that the debts of the said Company are truly stated by said J. H. Bill in his affidavit, which had been read to him; which affidavit of said Dey is dated November 26, 1841.</p> <p>That since the filing of the original hill by Kelly the said J. H. Bill has obtained a judgment against said Company for $832 12, besides costs ; which judgment was obtained in the Circuit Court of Essex, on the 24th May, 1848, fand was docketed in the Supreme Court; and that an execution was issued thence to the Sheriff of Hunterdon; hut the complainants charge that the said judgment is fraudulent and void, and that the said Company wore not indebted to the said J. H. Bill$ and if indebted at all, are not indebted boyond the amount of $501 83, as appears by the said affidavit and schedule of said J. H. Bill, dated Nov. 21,1841, in which he sets down his own demand at that sum.</p> <p>This hill prays that Janet Blair, Marmaduke Moore and J. H. Bill bo made defendants in this cause with the said Company j and that they may answer, respectively; and that the said Janet he decreed to surrender the said mortgage for $2,000; and that Moore and Bill be restrained from any further proceedings on their respective judgments; and that the receiver heretofore appointed be directed not to pay to the said Janet her said claim for the amount of the said mortgage; and not to pay to the said Moore and Bill their respective judgments ; and for further relief.</p> <p>On the 27th June, 1848, an order limiting creditors was taken.</p> <p>On the 21st Sept. 1848, an order staying sale on the judgment of bill was made ; and on the same day a decree pro. con. was taken against the Company on the original bill of Kelly against the Company; and on the same day a decree pro con. on the supplemental bill was taken against Moore, Bill and Janet Blair.</p> <p>On the 22d Sept. 1848, an order was made that the receiver sell the real estate subject to the mortgage of Rockafellow and the $500 mortgage of Janet Blair.</p> <p>On the 23d Sept. 1848, an order was made giving the receiver 30 days to answer the bill of Janet Blair against the Company.</p> <p>On the 3d Nov. 1848, the receiver put in his answer to the bill of Janet Blair.</p> <p>He denies that there is anything due her upon the mortgages stated in her bill; but says that the same are, as he is informed and believes, entirely fraudulent and void. That Dey, having-obtained a transfer of the stock of an insolvent Company, reorganized it, among his relatives and friends, by distributing a few shares to each ; they becoming Directors in the new concern. That Dey also procured an assignment to himself of an article between Peter I. Clark, Esq., and Jacob Rockafellow for the purchase and sale of the mining property formerly owned by the old Neshanic Mining Company.</p> <p>This answer states, (giving the facts and allegations on which the statement is founded,) that the f500 mortgage to Janet Blair, as well as the f2,000 mortgage to her, is fraudulent and void.</p> <p>On the 17th Dec. 1848, Rockafcllow put in his answer to Janet Blair’s bill.</p> <p>On the 2d October, 1848, Janet Blair presented her petition, stating &c.; and stating that it would be injurious to the interests of the persons interested in the property to sell the engine, pump and fixtures separately. That she has heard of the order directing the receiver to sell the property subject to the mortgage of Rockafcllow and the $500 mortgage of Janet Blair, thereby excluding her claim on her $2,000 mortgage; and no information was given whether they intended to sell the engine, pump and fixtures separate from the farm. She therefore prays an order on the receiver to suspend the sale until the matters of fact can be inquired into, and especially to injoin the sale of the engine, pump arid fixtures separate from the farm.</p> <p>The petition of Janet Blair and Joseph H. Bill was also presented, stating &c. j and praying that all orders restraining the Sheriff from proceeding to sell under the judgment and execution of said Jos. H. Bill may be set aside ; and thereupon it was ordered that cause he shown on the 30th Oct. 1848, why all orders restraining the Sheriff from proceeding to execute the judgment of Jos. II. Bill should not bo set aside, and the said Sheriff be permitted to proceed with the sale of the real estate of the Company, together with the machinery; and why the sale of the same by the receiver should not be injoined; and it was further ordered that the receiver and the Sheriff be injoined from selling until the further order of the court; and that the sale be adjourned from timo to time until the foregoing matters he determined ; and that a copy of said order bo served ten days prior to the said 30th o! October.</p>

On the 17th April, 1849, Joseph Brown, of Philadelphia, exhibited his bill, stating that one Thomas I. Folwell, of Philadelphia, being indebted to the complainant in $9000, for money lent and advanced, executed to the complainant a bond dated August 23, 1843, conditioned for the payment to the complainant of $9000 in one year, with interest payable half yearly.

<p>The exclusion of one partner by the other from participation in the business oi' the partnership is a ground for injunction restraining the excluding partner from collecting debts due the partnership, and for the appointment of a Receiver.</p> <p>As a general rule, the Court will notorder the business of a partnership to be continued by the Receiver.</p>

<p>On appeal from an order dissolving* an injunction, the Chancellor granted an order staying the proceeding to restrain which the injunction had issued until the next sitting of the Court of .Errors and Appeals. A motion was made in that Court, at its next sitting, for an order extending the stay until the hearing on the appeal.</p> <p>JMdy that the Court of Errors and Appeals had power to make such an order; but that the granting or refusing it rested in the sound discretion of the Court. It was denied in this case.</p>

<p>The Chancellor had dissolved an injunction which had been granted at the instance of the complainant in Chancery, who was the appollant in this court, restraining the defendant in. Chancery, the respondent in this court, from further proceedings upon an execution issued out of the Court of Chancery. An appeal having been taken, the Chancellor, at the instance of the appellant, made an order restraining the respondent from proceeding upon his execution until the hearing of the appeal, or until the order of the Court of Errors and Appeals to the contrary. Upon the CQming in of the appeal, a motion -was made in behalf of the respondent to be relieved from the effects of this order, and to be permitted to proceed upon the execution. The motion was denied.</p>

<p>On a question of capacity, the mere expression of an opinion by a witness, not founded on any facts stated by him from which the court may judge of the soundness of the opinion express >d, if it be any evidence at all, is the lightest possible evidence.</p> <p>That the complainant, before the making of the contract, had had a severe attack of illness, from which time he was a less active, enterprising business man than before; that he was a man of intemperate habits; that he was subject to occasional fits arising from the habit of intoxication; that his mind was less vigorous than when his habits were correct, does not show that he was deprived of his right reason or incapable of managing his affairs or business.</p> <p>The bill stated that, at the time of the making of the partition sought to be avoided, the complainant was deprived of his right reason, and was of unsound mind and totally ineaple of transacting any business or of the government of himself and management of his afiairs, and stated what the partition was.</p> <p>Held, that under this bill the court could not decree for the complainant and sol asido the contract upon evidence of imbecility of mind and the ground that the partition was so unequal as, joined with the incapacity of the complainant, to raise a presumption of fraud in the defendant in procuring the deed of partition.</p> <p>Under what circumstances the lapse of twelve years will be a ground on which a court of equity may refuso to interfere to set aside a partition deed alleged to have boon obtained by the defendant from the complainant when he was of unsound mind.</p>

<p>For the facts of the case, see ante, 410.</p>

<p>This case is reported ante, page 415.</p>

<p>This case is reported ante, page 178.</p>