Volume 7 — Paige's Chancery Reports

oThis case came before the chancellor upon an appeal from a decree of the vice chancellor of the first circuit, dismissing the complainants’ bill, with costs.

<p>A decree which finally decides and disposes of the whole merits of the cause, and reserves no further questions or directions for the future judgment of the court, so that it will not be necessary to bring the cause again before the court for its further decision, is a final decree.</p> <p>The decree may be final although it directs a reference to a master, if all the consequential directions depending upon the result of the master’s report arc contained in the decree, so that no further decree of the court will be necessary, upon the confirmation of the report, to give the parties the full and entire benefit of the previous decision of the court.</p> <p>Proceedings in the court of chancery must be instituted and carried on in the names of the real parties to the litigation; and where the complainant sells his whole right to the subject matter of the suit, either before or after a decree, the purchaser cannot carry on the suit for his own benefit, in the name of the vendor, if there is to he further litigation therein.</p> <p>Where a party against whom a final decree has been made, sells his right to the subject matter of the suit, an appeal from such decree in the name of the party against whom the same was made cannot be sustained. But if the purchaser is entitled to. appeal, he must make himself a party to the suit, and bring the appeal in 1ns own name.</p> <p>It seems, that after a decree against the right of a party has been made, such party cannot dispose of his claim to another so as to give the latter a right to appeal from the decree.</p>

This was an appeal from the decree of the vice chancel™ lor of the first circuit dismissing the complainant’s bill. The facts of the case and the vice chancellor’s opinion are contained in the report of the case before him. (See 2 Edw, Ch. Rep. 78.)

The facts in this case are so fully stated in the opinion of the chancellor, that it is deemed unnecesary to repeat them here. The following opinion was delivered by the vice chancellor upon making the' decree appealed from: Gardner, Y. C. The first question in this case is, whether Phelps as surviving partner had the right to transfer all the partnership property to assignees for' any purpose.

This was an application to appoint a receiver of property assigned by one of the defendants, who was insolvent, to the other defendant, in trust for the payment of the debts of the assignor.

<p>The court has no jurisdiction or power to authorize the taxation of extra counsel fees in partition suits beyond the amount allowed in the fee bill. And in drawing up the decree, no direction should be inserted therein for the allowance of such extra fees; as the taxing officer cannot legally allow them on taxation.</p>

This was a partition suit, in which the bill had been taken as confessed against the unknown owners of certain undivided shares of the premises.

This was an application by the defendants to dismiss an appeal from an interlocutory order of a vice chancellor; on the ground that the appeal was not entered within the fifteen days allowed by law for appealing. The order appealed from was founded upon an application of the complainant’s solicitor to suppress certain depositions taken on the part of the defendants, under a commission executed in New-Jersey, or for such other order as to the court should seem proper.

This was an application for the retaxation of costs. The complainant’s solicitor had charged, and the taxing officer had allowed, for abbreviating the pleadings for counsel on a motion to dissolve the injunction, and also for an abbreviation for counsel upon the hearing of the cause; the counsel who argued the cause on the motion not being the same who argued the cause upon the hearing.

Upon an application to discharge the guardian and to have his bond delivered up and cancelled, his ward having arrived of age and settled with the guardian,

This was an appeal from a decision of a vice chancellor, refusing to grant an attachment against the defendants in a creditor’s bill.

This was an application to dismiss the appeal of T. D. Foster and T. Dixon from a decision of a circuit judge, affirming the sentence¡.or decree of the surrogate of Cayuga county by which the will of E. Wheedon had been established and admitted to probate upon the application of one of the executors. The grounds of this motion were that no petition of appeal had been filed, or transcript returned, within the time allowed by the rules of this court for that purpose.

This was an application to stay the proceedings on the part of the complainant, until the costs of a former suit brought by him for the same matter, in the supreme court, should be paid.

This was an appeal by the defendants from an order of the vice chancellor of the first circuit, appointing a receiver of the joint property of the defendants and of the separate property of Spinoia, who alone was served with process in the suit at law.

This was an appeal from a decision of the vice chancellor of the first circuit, refusing to open a decree for a divorce and to permit the defendant to put in an answer setting up a condonation of the adultery charged in the bill, in bar of the suit.

This was an application to dismiss the complainant’s bill for want of jurisdiction. A cross motion was made at the same time for the appointment of a receiver of the effects of the defendants.

This case came before the court upon an appeal from a decision of the vice chancellor of the first circuit. The parties in this suit, or one of them, having an interest in certain premises which was in controversy, an order for a receiver was entered.

<p>This was. an appeal from a decision of the,vice chancellor of the first circuit, dissolving an injunction upon the facts appearing upon the complainant’s bill. The bill was filed in- May, 1837. It stated that the complainant made a note payable to the order of J. H. Underhill, and entrusted it to the latter for the purpose of having it discounted at a bank, for the complainant’s benefit. But instead of doing this, Underhill sold it to the defendant, as his own, at a discount of two per cent a month for the time the note had to run.</p>

<p>Where an act of the legislature directed the proceeds of certain bank stock to be paid to the eldest son of B. who should be living at the death of L., and at the passage of that act, in 1831, B. had two sons living, both of whom survived L., and the eldest of the two sons after the passage of the act and before the death of L. sold and assigned his interest in the proceeds of the stock to H., a bona fide purchaser'; Held, that the eldest son.of B, at the time of the sale had a vested interest in the proceeds of the stock in the nature of a vested remainder, subject to be divested by his death during the life of L., and that his whole interest in the fund passed by the sale to H.</p> <p>By the provisions of the revised statutes, a mere possibility coupled with an interest is capable of being, conveyed or assigned at law, as well as in equity, in the same manner as an estate or interest in possession.</p>

The bill in this cause was filed, to compel the specific performance of a contract of sale to the defendants of a lot in the city of New-York, a part of the site of the Low Dutch Church in Garden Street, destroyed by the great fire in 1835.

This was a creditor’s bill in the usual form, founded upon a judgment recovered in the superior court of the city of New-York.

<p>Where F. being in embarrassed circumstances and suits being pending against him, conveyed his real estate to T., in trust to sell the same, and out of the .proceeds to retain a large debt due himself, and to apply the residue in payment of other creditors; and T. permitted F. to retain the possession 4 or 5 years under a nominal lease to his son, without exacting the payment of any rent, and until after several judgments had been recovered against F. for debts contracted previous to the conveyance; it was held that the conveyance was fraudulent and void as against the creditors of F.</p> <p>It seems that on an appeal from a final decree made in a suit before a vice chancellor, the merits of ail interlocutory decree made in such suit cannot be inquired into; especially where the time for appealing from the interlocutory decree has expired.</p>

Tins was an application on the part S. Lounsberry, one of the defendants, to have a bond given by him and his sureties for the performance of the decree in this cause given up and cancelled. Lounsberry had been arrested upon a ne exeat and had given bail to the sheriff. Afterwards, by agreement of the parties, the ne exeat was discharged, upon his executing the usual bond, to answer the complainant’s bill and to abide the decree which should be made in the cause.

The bill in this cause was filed by the two daughters of Moses Winne deceased, together with their husbands, claiming the whole beneficial interest in a bond and mortgage given to the decedent in his lifetime, and asking for an injunction to restrain the collection thereof for the benefit of his residuary legatees, under the following circumstances: In October 1834, the testator made his will in due form, and thereby devised to his two sons certain portions of his real…

This was an appeal from a decree of the late vice chancellor of the third circuit. Previous to the marriage of the widow of R. James deceased, with the defendant W. E. Ross, a deed of settlement was executed, by which her estate was conveyed to S. S. Treat as trustee for her separate use.

This was an application to vacate an order entered in the office of the assistant register, upon remittiturs from the court for the correction of errors, and to take such remittiturs off the files of this court.

Tras case came before the chancellor upon an appeal from the sentence or decree of the surrogate of New-York, upon the settlement of the accounts of the appellant C. Gardner administratrix with the will annexed of James Gardner her former husband..

This was an appeal from a decree of the vice chancellor of the first circuit, allowing a demurrer and dismissing the complainants’ bill with costs.

This was an appeal from a decision of the vice chancellor of the first circuit, dissolving the injunctions issued in this cause restraining the defendants severally from proceeding at law to collect certain notes.

This was an appeal from a decree of the vice chancellor of the first circuit. The bill was filed against De Cala as a judgment debtor of the complainant; and Murray, another of the defendants, was charged with having taken a fraudulent assignment of the property of De Cala. Richards, the other defendant, had received a mortgage on the property without consideration.

About the year-1812, G. Perrin the defendants’ testator purchased of Simon Stone one third of a lot of land in Monroe. county called the Budlong lot; the title to which Stone-agreed to warrant. And as there was some question about the goodness of the title conveyed to Perrin by Stone, Perrin took from the latter a judgment in the supreme court, to indemnify him against the failurcofsuch title.

This was an appeal by the defendant from a decree of the vice chancellor of the eighth circuit. It appeared that the complainant was the assignee of twelve acres of land included in a contract with the Holland Land Company for a lot of 190 acres, and that the defendant was the assignee of the residue of the lot.

This was an application by the defendants to dissolve an injunction issued upon the filing of a creditor’s bill, in the usual form. The defendants were abundantly able to pay the debt for which they were sued, they having a large amount of property in the western part of this state, where they resided. Being in the city of New-York they were sued there in the court of common pleas, and a judgment was recovered against them.

This was an appeal from a decision of a vice chancellor refusing to vacate a decree obtained against the defendant by default. It appeared that the defendant was sentenced to imprisonment in the state prison at Auburn, for felony, for a term of years; that while he was so imprisoned his wife filed her bill against him for adultery, and upon a personal service of the subpcena obtained a decree by default for a divorce.

This was an appeal from the decision of a vice chancellor, upon an application to compel the defendants to attend before a master and execute a conveyance, pursuant to the directions of the decree in the cause. The defendants Mead and Annan were by the decree directed to execute a conveyance of a lot of land to the complainant, by a deed to be approved of by the master, and to be executed in his presence and under his direction.

This was an application for an injunction to restrain the prosecuting creditor, and the trustees of the complainant, as a non-resident debtor,, from proceeding under the attachment against the complainant’s property and effects.

This was an appeal from a decision of the vice chancellor of the eighth circuit, dissolving an injunction. The complainant was the accommodation endorser of a note, made by D. S. & J. Cole, upon which a judgment had been obtained at law, in favor of Morrison, the defendant here, as the holder of the note.

This was an appeal from a decree of the vice chancellor of the fifth circuit, dismissing the complainants’ bill. The complainants were judgment creditors of the defendant Stoddard, and their execution against him had been returned unsatisfied. The bill was filed to reach his property and choses in action, and to set aside an assignment thereof to the defendants Thurber & Townsend as fraudulent.

<p>Where H. purchased at sheriff’s sale, on the 25th July, 1832, certain lands under a judgment against M., docketed in February, 1825, and the day after the sale H. took an assignment of a prior mortgage, dated Jan. 25, 1820, and H. was also the owner of a judgment against M., docketed in March, 1824, and also of a judgment in favor of B. docketed in November, 1827; and W. was also the owner of a judgment against M. docketed in February, 1832; and after the assignment of the mortgage to H. she foreclosed the same under the statute and bought in the premises; and the surplus beyond the mortgage debts he applied on the eldest judgment, docketed in March, 1824; and on the 25th day of October, 1833, the last day of the fifteen months from the sheriff’s sale, H. furnished the sheriff certified copies of the docket of her two judgments which were junior to that on which the property was sold, with her affidavit that she was the owner, and , specifying the amount due.on each; and afterwards, in the evening of the same day, W. applied to the sheriff to redeem the premises upon payment of the original bid and interest, and produced the requisite affidavit but no copy of the docket as required by the statute; and the sheriff permitted him to redeem, without paying the amount due on the two prior judgments owned by H., and afterwards falsely represented to the agent of H. thatW. produced a copy of the docket of his judgment on redeeming, and the agent acting upon this representation received the redemption money, and the sheriff gave W. the deed; and as soon as the false representation was discovered, the agent of H. offered to return the money with interest; and W. afterwards applied to H. to redeem the premises from the mortgage, which H. refused; It was held, that W. not having redeemed the premises from the sheriff’s sale as required by the revised statutes, he was not entitled to the sheriff’s deed, and that he was therefore not entitled to redeem,.thqm from the mortgage; also hold that both the legal and equitable title was vested in H.</p> <p>The decree upon a bill to redeem should fix the time within which the redemption is to take place ; and should direct that the complainant’s bill be dismissed with costs, if the money is not paid within the time prescribed.</p> <p>It is erroneous to deqree a perpetual injunction to stay proceedings in 'á suit against third persons, not parties or privies to the suit in which the decree is made.</p> <p>The surplus arising on a sale under a statute foreclosure of a mortgage, cannot be claimed by a subsequent incumbrancer, unless he releases to the purchaser all future claim upon the equity of redemption,; which equity is not foreclosed as to him.</p> <p>In order to make a valid redemption of lands from a sheriff’s sale under a judgment and execution, the directions of the statute must be strictly complied with; the sheriff has no power or discretion to dispense with any one of them.</p> <p>A redemption was held invalid for the non-production and delivery to the sheriff, on the redemption, of a copy of the docket of the judgment under which the redemption was claimed to be made, duly certified, as required by the revised statutes.</p>

Tras was an application to stay the proceedings in a foreclosure suit, upon payment of the interest due on the bond and mortgage. The bond and mortgage were given the 10th of February, 1835, conditioned to pay $800 five years from date, with annual interest thereon, at five per cent.

The bill in this cause was filed for the specific performanee of a contract.

The bill in this cause was filed before the vice chancellor of the fifth circuit for the partition of lands. Held: that the illegitimate children took under the will.

This was an appeal from a decree of the vice chancellor of the first circuit allowing a demurrer to the complainants’ bill, and dismissing the bill with costs. ' The bill was filed by the complainants, in behalf of themselves and of the other descendants of Annetje Jans Bogardus, and the heirs at law of her children, grand children, and devisees, for the recovery of certain tracts of land in the city of New-York, in the possession of the defendants; and for an account of the…

The Eagle Fire Insurance Company was one of the corporations rendered insolvent by the great fire in New-York, in December, 1835; and this bill was filed by some of the stockholders, in behalf of themselves and others, claiming all the surplus funds of the company in the hands of the receivers, beyond the capital stock of the company at the time of the fire which produced the insolvency.

This case came before the court, upon the report of commissioners in partition as to the division of the premises between the several parties according to their respective interests therein, for a final decree ; and for directions as to the costs of the suit.

This was an application to set aside the proceedings of the complainant for irregularity. A decree had been made by the vice chancellor of the fourth circuit, referring it to a master to take an account of the complainant’s damages, under a covenant of warranty of the defendant’s testator, and directing the defendant to pay the amount reported due, with costs, upon the coming in and confirmation of the master’s report.

This case came before the court upon a bill of foreclosure taken as confessed against the defendant, for a final decree upon the master’s report of the amount due ; and several questions were raised as to the construction of the bond and mortgage, relative to the payments of principal and interest and as to how much had become due.

This was an application to the chancellor for further directions, pursuant to the provisions of the thirteenth section of the decree of the court for the correction of errors in this cause.

This was an appeal from a decree of the vice chancellor of the. first circuit, upon a bill filed by the executors of John Hone deceased, against his widow and heirs, legatees and distributees, for the purpose of obtaining a construction of the will, and the directions of the court as to the validity of the devise of the estate of the testator to his executors in trust.

A commission in the nature of a writ de lunático inquirendo was issued in this case, to inquire whether S. Morgan, who was alleged to be of unsound mind, was a lunatic or idiot, or of unsound mind, and mentally incapable of governing himself and managing his affairs, Sic. The jury by their inquisition found that he was incapable of managing his affairs or governing himself, in consequence of mental imbecility and weakness, and had been so incapable for two or three years.

This was an application on the part of the defendant J. Dwyer to discharge a ne exeat, on which he had been arrested and held to bail in the sum of $15,000; or to reduce the amount of bail required, and to permit the petitioner to leave the state, upon his giving the usual security to answer the complainant’s bill and to render himself amenable to the process of the court during the progress of the suit, and to such process as might be issued to compel a performance of the…

This was an application to dismiss an appeal from the final decree of a vice chancellor, on the ground that it was not entered within the six months after the actual, entry of the decree in the minutes of the court.

This was an appeal from a decree of the late vice chancellor of the fifth circuit, dismissing the complainant’s bill with costs. In September, 1830, the complainant held a bond and mortgage against the defendant, payable by instalments ; on which was then due $558,33, and the further sum of $300 and interest was to become due and payable on the 27th of August, 1831.

Tras was a bill for partition of a farm which formerly belonged to Levi Safford, the father of the complainant and the grandfather of the five infant defendants. The widow of L. Safford, the grandmother of the infants, was still living and entitled to dower in the premises.

This was an application to dissolve an injunction restraining the defendants from erecting a building in the city of Hudson, upon a vacant lot owned by them, intended to be used as a hay press.

This was an application to confirm the report of one of the vice chancellors, to whom it was referred by an order of the chancellor to pass the accounts of the guardian of an infant, periodically. From the report of the vice chancellor, which was made upon the passing of the first account of the guardian, it appeared that such guardian had received for a legacy due to his ward, including interest on the same, the sum of $11,036 48.

The bill in this case was filed by the assignees of B. Rathbun, who were also some of his preferred creditors, for a construction of the articles of assignment, and to have the several preferred and other creditors come in and establish their claims, under the assignment, as well to priority as otherwise.

This was an application on the part of the complainants, in a creditors’ bill, for the appointment of a receiver; not only as to De Forest and T. Darling, the judgment debtors, but also as to the defendants L. Kip and J. F. Darling, the assignees of T. Darling. Cross applications were also made on the part of T. Darling, and also on the part of his as« signees and of De Forest, to dissolve the injunction.

<p>Where a defendant has been examined on oath before a master upon a reference to appoint a receiver upon a creditor’s bill, his examination may he given in evidence by the adverse party, upon the hearing of the cause, to contradict the defendant’s answer; although the master required him to answer questions which he was not legally hound to answer.</p> <p>If illegal or improper questions are put to a defendant upon his examination before a master ho is not bound to answer them, but may appeal from the decision of the master to the court. But if he improperly refuses to answer questions which are relevant and proper, he will be compelled to pay the costs of an application to the court to compel him to answer; and he may be otherwise punished for the contempt.</p>

This was an application by John D. Lawyer, a clergyman, and a part of tho elders and deacons of Zion church, an incorporated Evangelical Lutheran society, for an injunction to restrain the defendants, who were the trustees of the corporation, from interfering with or impeding the complainants and their adherents in the occupation of the church belonging to such corporation, for public worship and the administration of religious ordinances; and from expelling the complainant…

This was an application for an attachment against Cleveland, one of the defendants, for not attending before a master and assigning and delivering over his property to the receiver appointed in this suit, according to the order of the court.

This was a petition of some of the stockholders of the Sea Insurance Company for the appointment of a receiver of the property and effects of the company, with the usual powers of a receiver to close up the affairs of the company, in conformity to the provisions of the article of the revised statutes relative to proceedings against corporations in equity ; and for an injunction to restrain the officers and directors of the company from collecting, receiving, disposing of, or…

<p>Where the agent of the state prison at Auburn, in 1834, with the assent of the inspectors, let to S. the labor of 60 convicts, for the term of five years from the first of the preceding November, who were to be chair makers or capable of learning that trade, and it was stipulated in the contract that S. should have the privilege of a renewal for the further term of five years provided he offered as favorable terms as any other responsible person; which contract was afterwards assigned to J. with the assent of the agent of the prison, on condition that J. would put in proposals under the notice which was then being published under the provisions of the act of 1837, and would offer for the labor of the convicts a sum not less than the former contract prices and to pay the balance duo to the state from the previous owners of that contract; and J. in his proposals offered a sum equal to the old prices and also offered to secure the balance due from such previous owners, and added a further clause to his proposal, that he would give as much for the services of the convicts, all things considered, as should be of. fered by any other responsible person; which sum offered by J. including the balance due from the former owner was not equal to the sum offered by P. who also put in a proposal Under the notice; Held that the offer of J. did not entitle him to a renewal of the contract, as he did not offer as much as P. in addition to the payment of the balance due under the former contract; which balance he was bound to pay in order to entitle him to a renewal as the assignee of the contract.</p> <p>To entitle the assignee of a contract to a specific performance thereof, he must do every thing which his assignor would have.been bound to do if the contract had not been assigned; unless the person against whom the specific performance is claimed has relinquished his rights in favor of the assignee.</p>

This was an application of Obadiah Hoag who was placed under the care of a committee, in 1821, as an habitual drunkard, to have his property restored to him.

This was an application on the part of the defendant William J. Vandenburgh, to set aside the decree, and the sale of the petitioner’s lot thereon, and all the proceedings in this cause against him, for irregularity as well as upon tho merits.

<p>This was an appeal from an order of the vice chancellor of the first circuit discharging the defendant from arrest upon an attachment, at the suit of the appellant, for an alleged contempt, in not entering his appearance upon a subpoena supposed to have been served upon the wife of the defendant at his residence in New-York.</p>

<p>Where the testator died previous to the ad ption of the revised statutes, and by his will, which was made some time before his death, devised his estate to his wile for life, and directed his executors to sell the same after her death and to convert it into money for the purposes of distribution, and then gave one fourth of the proceeds to his son if then living, but in case of his death before that time, the testator directed that his share should be equally divided amongst the children of such son, the survivors or survivor of them; and the son died in the life time of the testator leaving three children, one of whom died in the lifetime of the testator leaving a child; Held, that the two surviving children of the son were entitled to the whole of that share of the estate, to the exclusion of the child of their deceased brother. And it seems the result would have been the same in this case if the testator had died after the adoption of the revised statutes.</p> <p>Where an interest in property is given to a person, with a limitation over of the same interest to his children, or others upon his death before the time appointed for such interest to vest in possession, the death of the first devisee or legatee, in the lifetime of the testator, does not produce a lapse of the limitation over to the substituted objects of the testator’s bounty.</p> <p>As a general rule in the construction of wills, the testator must be presumed to have used words in their ordinary or primary sense unless it appears from the context that he probably used them in some other sense; or unless by reference to extrinsic circumstances, the use of the words in their primary sense would render the provisions of the will insensible or inoperative.</p> <p>The word children in its ordinary sense does not include grandchildren. But it may include them where it appears there were no persons who would answer to the description of children in the primary sense of the term, or where there could not be any such at the time or in the event contemplated by the testator; or where the testator has clearly shown by the use of other words that he used the term children as synonymous with issue or descendants.</p> <p>In a limitation to the survivors of a clars of devisees or legatees, where any of the class are in esse at the death of the testator so as to be capable of taking a vested interest, the survivorship is usually construed with reference to that time ; so as to give the representatives of such of the class as die after the testator, the right to a share of the devise or bequest to the class.</p> <p>Where a devise or legacy or residuary bequest is given to two or more persons by name as tenants in common, or to be devided among them equally, and without any words indicating an intention of the testator to give the same over to the survivors, the shares of such as die in the lifetime of the testator will become lapsed ; or will go to their children or descendants under the provisions of the revised statutes.</p> <p>Where the construction of a will has been correctly settled by the decree of the court below, the appellant who fails in reversing such decree is personally chargeable with the costs of the appeal, except in very special cases.</p>

This was an appeal, by the defendant, from an order of the vice chancellor of the first circuit, directing the appointment of a receiver of the premises in controversy in this suit.

This was an application on the part of the defendant to open the final decree, which had been made against him in this cause, and to permit him to come in and defend the suit.

Tras case came before the chancellor upon demurrer to the complainant’s bill. The complainant was a specialty creditor of Robert L. Bowne deceased, for the balance due upon a bond and mortgage executed by the latter, to the amount of about $19,000, and for interest thereon from October, 1827, when the mortgaged premises were sold under a decree of foreclosure against the heirs at law and judgment creditors of the decedent.

This was an appeal from a decision of the surrogate of the county of Westchester, denying the appellant's application to be appointed the general guardian of the person and the estate of Henry Doyer, the son of the petitioner's deceased wife, an infant about ten years of age. Upon the presenting of the petition the surrogate appointed a day for the hearing of the matter, and caused the relatives of the infant to be notified, that they might attend.

This case came before the court upon two attachments ' against the defendants; the one upon the application of the complainants for an alleged breach of the injunction, and the other upon the relation of the receiver, for the neglect of the defendants to deliver over their property to him according to the order of the court. ,

This was an application for the appointment of a receiver upon a creditor’s bill. On the part of the defendant it was insisted that the complainants had not exhausted their remedy at law; as the form of the execution which had been issued, as stated in the bill, did not authorize the sheriff to sell the chattels real of the defendant.

This was an application to take the answer of the defendants Bassford and wife off of the files of the court for irregularity. The bill was filed to foreclose a mortgage; and an answer on oath was waived. The defendant Bass-ford put in an answer for himself and wife, by his solicitor ; but which answer was not signed by the defendants. The answer alleged that the mortgage was usurious.

This was an appeal by the complainants from a decree of the vice chancellor of the first circuit dismissing their bill. The object of the bill was to charge the defendants personally, as stockholders of an insolvent insurance company, with the debts of the corporation, under a clause in its charter making them personally liable to the creditors to the extent of their several shares in the capital stock of the corporation at the time of its dissolution.

This was an appeal from an order of the vice chancellor of the eighth circuit. In December, 1834, the defendant contracted with the complainant to sell him a lot of land in the city of Buffalo for $8300; of which purchase money $200 was paid down, and $1875 was to be paid on the 20th of the same month.

This case came before the court upon five different appeals, by the complainants, from five distinct orders of the vice chancellor of the first circuit, refusing to compel the respondents respectively, who were purchasers at the master’s sale of different portions of the premises directed to be sold under the decree in partition in this suit, to complete their purchases.

This was an appeal from a decree of the vice chancellor of the seventh circuit. The bill was filed to restrain the defendants from proceeding, either at law or in equity, to enforce the payment of a bond and mortgage given by the complainant to the defendant A. Hubbel in May, 1830, and. a note of $28 given to the defendant L. Hubbel in May, 1831, on the ground of alleged usury thereon ; and for a decree that the bond and mortgage and note be delivered up and cancelled.

This was an appeal from an order of a surrogate requiring the appellant, to whom letters ad colligendum bona defuncti had been granted, to give further security. The appeal was entered on the 3d of November, 1888; and the respondent’s counsel, upon an affidavit that the transcript of the proceedings before the surrogate were not returned to this court until the first of December thereafter, applied, ex parte, to dismiss the appeal with costs.

The bill in this cause was filed to foreclose a mortgage given by the defendant Fly, to the complainant, upon a farm in Greenbush; and the defendants, A. Drum and John Heaxt and wife, were made parties, on the ground of some supposed interest they had in the premises, or claimed to have therein, as prior incumbrancers under the will of Nicholas Drum, deceased.

This was an application on the part of the defendant L. H. Sandford to dissolve the injunction which had been issued in this cause, on the ground that a copy of the bill had not been served on his solicitor within ten days after notice of his appearance, as required by the thirty-fifth rule of this court. The complainant’s solicitor lived in the city of New-York, and the solicitor for the defendant in the county of Onondaga.

This was an appeal from a decision of the vice chancellor of the first circuit, convicting the defendant, as coroner of the city and county of New-York, for a contempt in not returning an attachment issued against the sheriff. The attachment was made returnable on the 25th of September, at ten o’clock in the forenoon, and J. M. Lowndes was deputed by the coroner to serve and return it.

This case came before the court upon the defendant’s plea to a creditor’s bill, upon a judgment recovered by the complainant Butcher, in the name of the complainant Palmer, on a bond given by the latter payable by instalments, which bond had been duly assigned to Butcher.

This was an appeal from a decision of the surrogate of the city and county of New-York, settling the priorities, as between different judgment creditors of the decedent, to payment out of the personal estate. G. T. Mumford, the decedent, died in April, 1831, insolvent and intestate, leaving several judgments outstanding against him, two of which were docketed more than ten years previous to his death.

This was an application by the complainants in a creditors’ bill, to appoint a receiver of the property of the defendants, who were the judgment debtors. And a cross motion was also made on the part of Durant, one of the defendants, to dissolve the injunction which had been issued restraining him from disposing of his property.

<p>Where S. and M. gave a joint and several note for $200, to C., which note was given for the debt of S., and M. signed it merely as his surety, which fast was known to C. when he received the note, and when the note became due C. made an agreement with S. the principal debtor, for the considera, tion of $25, to extend the payment of the note for one year, which agreement was made without the knowledge or consent of M., and S. before the expiration of the year became insolvent; and C. subsequently brought a suit at law on the note against S. and M. jointly, and the fact of the extension of the payment was known only to S. and C., upon a bill filed by M. against C. stating these facts, and the same being established by the proofs in the cause ; Held, that S. was not a necessary party to the suit; and that M. was entitled to a decree for a perpetual injunction against the collection of the note from him personally, but without prejudice to the right of C. to proceed to judgment in the suit at law, and to enforce the collection of the judgment against S.; also Held, that S. was a competent witness for M. in the suit against C. in the court of chancery.</p> <p>Where the court of chancery has properly obtained jurisdiction of a suit, for the purpose of a discovery of facts which could not be proved in the suit at law, it may retain the cause and give the necessary relief, although the facts constituting the defence at law are admitted by the defendant’s answer, which answer might be read as evidence in the suit at law.</p> <p>The proper course, where there is a want of necessary parties, is to order the cause to stand over, to enable the complainant to bring the necessary par. ties before the court; or to dismiss the bill without prejudice, so that his right to bring a new suit, making all proper persons parties thereto, will not be barred by the decree.</p> <p>An agreement between a creditor and his principal debtor to extend the time of payment of the debt, without the knowledge or consent of the surety, is a discharge of the surety; although the surety has sustained no damage by such extension.</p>

<p>This was an appeal from the decision of a vice chancellor denying an application on the part of the defendant Fry, the husband of the complainant, to dissolve the injunction in this cause, upon the bill and answer.</p>

The bill in' this case was filed to foreclose a mortgage given by the defendant Arent Pruyn to Isaac Heyer, the complainants’ testator, in July, 1809, to secure the payment of $1008 32, with interest thereon, the one half at the expiration of one year from the dale of the bond and mortgage and the residue in six months thereafter; which mortgage was duly proved and recorded in Columbia county, where, the mortgaged premises were situated, a few days after its date.

Tms was an amicable suit brought by the executors of the will of R. Goodrich, deceased, against A. Cone and Anne his wife and their infant children, for a judicial construction of the will of the decedent; for the purpose of settling the respective rights of the defendants to the interest or income of the proceeds of a sale of the testator’s real estate.

This was an application for a re-taxation of the defendant’s costs upon an appeal from this court to the court for the correction of errors. The charges objected to, as to which a re-taxation was sought, were for drawing points for argument, thirty-six folios, at twenty-eight cents ; and for thirty-nine copies thereof, at seven cents a folio; amounting together to the sum of #108,36.

<p>Partners are not entitled to charge each other, or the firm of which they are members, for their services in the care and management of the business of the copartnership, unless there is a special agreement to that effect; or where such an agreement can be implied from the course of business between the copartners.</p> <p>In the management cf the copartnership business, each partner is attending to his own interest therein, as well as to the interest of his copartner; and the law implies no agreement to compensate either of them for their various and unequal duties and services in the management of the business of the firm. But one of the copartners may be answerable to the other for an injury which the company has sustained by his fraudulent misconduct, in violation of his duty as a partner.</p> <p>Where, during the existence of the copartnership, one of the copartners received a deputation from the post master of the village in which the business of the firm was carried on, to enable him to do the business of the post office; and the office was kept at the store of the firm, where the business was done by the copartners and their clerks, and the accounts of tho office wore kept in the books of the company, and the monies received for postages went into the funds of the copartnership, from which funds the sums due to the general post office were also paid; Held, that the partner who had the deputation was not entitled to the whole profits and commissions arising from the post office business, but that they belonged to the co-partnership.</p> <p>A copartner is not liable for a loss occasioned by an order given by him to the clerks of the firm, in good faith, although in direct hostility to the directions which had been given by his copartner; and though the loss occurred in consequence of such contradictory order.</p> <p>As a general rule, entries made in the books of the firm, during the continuance of the copartnership, are evidence for and against the different members of the firm in a subsequent adjustment of their accounts between themselves; and it lies upon the party alleging a fraud or mistake in such entries to establish it by proof.</p> <p>Where, upon a bill filed for the settlement and adjustment of the accounts of a copartnership between the members of the firm, it appeared that each party had made several claims against the other, both before the commencement of the suit and during the progress thereof, which were not sustained by the decree of the court; Held, that neither party was entitled to the general costs of the cause as against the other.</p>

This case came before the court upon an order for the complainant to show cause why the decree in this cause should not be vacated and the enrolment thereof cancelled, and the sale under the same set aside, and the defendants, Pinckney and Bertine, let in to defend the suit.

This was an appeal by C. Deuroche, the receiver appointed in this cause, from a decision of the vice chancellor of the first circuit denying an application for an attachment against the defendant and two other persons for a contempt. The relator was appointed receiver of the property and effects of the defendant Gibson, who duly assigned the same to him under an order of the court, on the thirty-first of December, 1833.

This case came before the court upon exceptions to a master’s report, allowing the exceptions to the joint and several answer of the defendants for insufficiency.

The original bill in this cause was filed by the executors and trustees of the will of W. Cook, deceased, against his heirs and next of kin, and the legatees named in his will, for the purpose of settling the construction of the will and to have the trust thereof, if valid, carried into effect under the direction of this court.

Tub bill in this cause was filed for the specific performanco of a contract to purchase lot No. 58, on Hammond street, in the city of New-York; and a reference was directed to a master, to inquire and report whether the complainant had, or could give, a good title to the premises. The master having reported in favor of the title, the case came before the court upon the exceptions of the defendants to his report.

This case came before the chancellor upon the several appeals of J. Cook and F. Sebert, two of the purchasers at the master’s sale under the decree in this cause, from an order of the vice chancellor of the first circuit refusing to discharge the appellants from their purchases.

This was an application to dissolve an injunction upon bill and answer.

<p>Where the defendants had underwritten a policy for $15,000 upon a cargo of coffee, which cargo was afterwards seized under the Berlin and Milan decrees and condemned; and the assured after such seizure offered to abandon to the underwriters as for a total loss, which abandonment they refused to accept; and a colnpromise was afterwards made between the parties by which the assured consented to receive the sum of $5000, which was less than one third of the amount to which they would have been entitled upon an adjustment of their claim as for a total loss, and to cancel the policy; and compensation for the loss was subsequently made by the French government, $5000 of which compensation the commissioners under the French treaty awarded to the underwriters; Held, that upon the compromise with the insurers and the cancelling of the policy the whole of the claim to indemnity against the French government belonged to the assured; Held also, that the decision of the commissioners was not conclusive between the parties, as to which of them was entitled to the indemnity money under the treaty ; Held further, that the representatives of the assured were authorized to file a bill in chancery, to recover the money which the underwriters had obtained from the government of the United States, under the award of the commissioners; although they had a concurrent remedy by an action at law, against the insurers, for money had and received to their use.</p> <p>The court of chancery is not at liberty to relinquish its ancient and acknowledged jurisdiction of a case, although courts of law now afford a remedy to parties in like cases by the equitable action of assumpsit.</p>

This was an appeal from the decision of the late vice chancellor of the eighth circuit, refusing to dissolve an injunction. The complainant was a judgment creditor of Hempstead & Keeler, and his execution upon the judgment had been returned unsatisfied.

This case came before the court upon the plea of the defendants to part of the relief claimed by the complainant in his bill. The complainant and defendants were copartners in the business of buying, selling, preparing and dealing in wool and sheep skins, in the city of New-York, from March, 1835, to July, 1836.

This was an appeal by the complainants, from a decree of the vice chancellor of the first circuit dismissing their bill in this cause. The object of the suit was to charge the defendants personally with a debt alleged to be due to the complainants from an insolvent manufacturing corporation, of which the defendants were stockholders at the time of its dissolution.

This was an appeal from a decision of the vice chancellor of the fourth circuit. The bill was filed and an injunction obtained to restrain the defendants from proceeding, under the statute, to foreclose a mortgage given to them by the complainant ; which mortgage he alleged to be usurious. The defendants lived in New-York, and the complainant, who resided at Glen’s Falls, in the county of Warren, was indebted to them in the sum of about $746.

This was an application on the part of the Lansings, two of the defendants, to stay all further proceedings in this suit, and for a dissolution of the injunction which had been issued therein. The defendants, in March, 1838, entered into a limited copartnership, as wine merchants in the city of New-York, under the firm of Lansing & Co., in which firm the two Lansings were the general partners and the defendant Dakin was the special partner.

This cause had been set down and noticed for hearing, by the defendant, upon bill and answer; and this was an application on the part of the complainants to strike it from the calendar for irregularity, on the ground that the answer had not been perfected.

<p>Where it was doubtful from the master’s report, in a suit for a divorce on the ground of adultery, whether the complainant had not voluntarily cohabited with the defendant after she had knowledge of the last act of adultery which was proved to have been committed by him; she having cohabited with him subsequent to her knowledge of several previous acts of adultery; Held, that it was a proper case to be referred back to the master, to enquire and report whether there had been a condonation of the last acts of adult’ery, by a voluntary cohabitation of the defendant with the complainant after she had discovered that he had been guilty of such adultery.</p> <p>Upon a reference to a master, upon a bill for a divorce on the ground of adultery, it is the duty of the master to examine witnesses and report the evidence,*as to all the material facts charged in the bill, together with hie opinion thereon; particularly as to the averments in the bill which are required to be inserted therein, by the 163d rule of the court of chancery, as to condonation, collusion, &c.</p>

<p>Where the intestate, in 1824, gave a bond and mortgage upon a lot of land, of which he was the owner, to secure the payment of $6000; and the lot was afterwards sold and conveyed to B., subject to the payment of the mortgage, who afterwards conveyed the premises to a trustee, for the separate use of the wife of the mortgagor; and after the death of the mortgagor, the cestui que trust of the mortgaged premises who became entitled to the legal estate in the equity of redemption under the provisions of the revised statutes, administered upon the estate of the mortgagor; Held, that the mortgaged premises were the primary fund, in equity, for the payment of the bond and mortgage; and that the administratrix, who was the owner of those premises subject to the payment of the mortgage, could not, in the settlement of her accounts as administratrix, be allowed for the principal and interest which she had paid to the mortgagee, subsequent to the death of her husband, the mortgagor.</p> <p>Where, in a conveyance of real estate, it was expressly stated that it was understood and agreed, by the parties to such conveyance, that the premises were thus conveyed subject to a previous mortgage thereon, executed by the grantee in such conveyance, and to all interest due or to become due thereon; Held, that as between the grantor and the grantee, the mortgaged premises were the primary fund for the payment of the mortgage debt.; and that if the mortgagor was afterwards compelled to pay that debt to the mortgagee, he would be entitled, in equity, to be subrogated to the rights of the latter, and to reimburse himself out of the mortgaged premises. Held also, that a subsequent purchaser of the premises, from the grantee in such conveyance, took them subject to the same equity; although the deed to such subsequent purchaser did not in terms refer to the lien of the mortgage, or describe the lands as being conveyed subject to such lien</p> <p>The surrogate, upon the settlement of the account of an executor or administrator before him, has jurisdiction to examine and decide upon all claims between such executor or administrator and the estate of the decedent, whether such claims are legal or equitable; so as to make a final settlement and distribution of the estate, according to the rights of the several parties interested therein.</p> <p>Where the personal representative of a decedent appeals from a sentence or decree of the surrogate, directing the payment of money by the appellant upon the final settlement of his accounts, and such sentence or decree is affirmed, the respondents are entitled to interest on the sums awarded to them by the judge a quo ; as damages for the delay occasioned by such appeal.</p>

This was an application to appoint the register of this court guardian ad litem of infant defendants in a partition suit; the infants living out of the state and having been proceeded against by advertising under the statute.

This case came before the court upon a demurrer to the complainants’ bill. The object of the bill was to obtain a perpetual injunction against the prosecution of a suit at law upon an usurious note given by one of the complainants as principal, and by the other as his surety, to the defendaant, upon a loan of money.

<p>The defendant in this case was brought before the court upon an attachment for an alleged breach of an injunction issued upon a creditors’ bill. And a reference was made to a master to examine the defendant on interrogatories, and to take such other proof concerning the alleged contempt as should be produced before the master by either party, and to report such answers and proofs to the court. But there was no provision in the order of reference authorizing either party to produce affidavits before the master. Upon the reference, the complainant produced and examined various witnesses, in relation to the alleged contempt and the extent of injury which he had sustained thereby. But the defendant, instead of producing his witnesses before the master, with one or two exceptions, produced their affidavits before the master, taken ex parte; which proof was objected to by the complainant’s counsel as unauthorized by the order of reference. The master received the affidavits subject to the objection and annexed them as a schedule to the report. Two breaches of the injunction, the one for receiving $6,50 due on a judgment to the defendant, and the other for selling wood to the amount of $3, were admitted by the defendant in his answers, in connection with the proofs. But the principal breach consisted in the defendant’s cutting down and carrying off the wood and timber from land which the complainant had contracted to sell to the defendant, for a part of the purchase money of which land the judgment on which the bill in this case was founded had been recovered against the defendant. In the answers of the defendant to the interrogatories he attempted to change the alleged breach of the injunction, as to the cutting and sale of the timber and wood, into a mere wilful trespass; by swearing to a parol agreement, previous to the issuing of the injunction, to give up the possession of the lot to the complainant as his property; as to which alleged agreement various witnesses were examined, or their ex parte affidavits produced. And the cause was heard before the chancellor for a final decision as to the alleged contempt.</p>

This was an application on the part of the appellants to stay the proceedings on the execution in this cause until the decision of the court for the correction of errors, upon their appeal from the decree of this court affirming the decree and sentence of the surrogate.

This cause came before the court upon the master’s report and upon the equity reserved in a former decree. The complainant Parmelee, who sued in behalf of himself and other creditors of the defendants M. & A. Egan, was the assignee of a judgment against them, and had issued an execution thereon to the sheriff of New-York ; the collection of which execution was defeated by a fraudulent sale of their goods to the defendant K.Egan.

This case came before the chancellor upon various exceptions which had been taken, by different creditors, to the report of the master as to the several debts due and owing by the defendant B.… Held: endorsed by Horace Janes, amounting to $80,000.

<p>Where a creditor’s bill is founded upon a judgment in the supreme court, or a decree of the court of chancery, so that an execution thereon may be issued to any county, the complainant must show affirmatively, in his bill, that ho has exhausted his remedy, by issuing an execution to the county in which the defendant resided at the time when such execution was issued ; or he must state in his bill some sufficient legal excuse for issuing his execution to a different county.</p> <p>If the defendant has removed from the state, or if his residence, upon diligent search and enquiry, cannot be found, the execution may be issued to the county where he resided at the commencement of the suit against him, or the bounty in which his last known place of residence was.</p>