Volume 8 — Paige's Chancery Reports

This was an' application by the defendant to set aside the capias ad satisfaciendum, in this cause, on the ground that he was not liable to arrest and imprisonment.

This was an appeal from a decision of the surrogate of the city and county of New-York. Charles Smyth, of the city of New-York, died intestate in the beginning of the year 1832, leaving a widow and two children, one of which children was an officer in the army stationed at Fort Moultrie in the harbor of Charleston, and the other a resident of New-York. Administration .on his estate was granted to Ann Smyth, his widow, on the 8th of October, 1832.

This case came before the court upon the demurrers of Lance and Hodges, two of the defendants, to the complainant’s bill. 1 The complainant was the proprietor and vender of a nostrum known by the name of “ Brandreth’s Vegetable Universal Pills.” And, as the bill alleged, by advertising this medicine extensively in the public papers in the state of New-York and elsewhere, and thus giving publicity to it and its general efficacy in the cure of diseases, the complainant had…

This was an appeal from a decision of the vice chancellor of the first circuit.

<p>A purchaser under a decree of foreclosure is not entitled to a writ of assistance to turn a person out of possession of the mortgaged premises, although such person went into possession pendente lite, unless he went into possession under, or by the permission of, some one of the parties to the suit.</p> <p>Where the complainant in a foreclosure suit assigns all his interest in the mortgage pendente lite, and the defendant also sells his interest in the equity of redemption ; it is irregular to proceed in the name of the original complainant to foreclose the equity of redemption as against such assignee ■of the mortgagor. But the suit should be continued against him by a bill in the nature of a bill of revivor and supplement, filed by the assignee of the complainant,</p> <p>A purchaser at a master’s sale is entitled to a writ of assistance to put him in possession of the mortgaged premises as against the defendants in the suit, or those who have gone into possession under them pendente lite. But the court is not bound to grant a writ of assistance to a subsequent purchaser from the purchaser at the master’s sale ; and it will not there, fore grant such writ, if injustice will be done thereby.</p>

This cause was in readiness for hearing before the vice chancellor of the eighth circuit, who was legally incompetent to hear and decide it, because he had been counsel for one of the parties. An application was therefore made to the chancellor, either to hear the cause himself, or to refer it to some other vice chancellor to hear and decide the same.

This was an appeal from the decision of a vice chancellor denying an application for the dissolution of an injunction. The hill was filed by Bunce and wife, she being one of the children of J. F. Mason, deceased, for the partition of a lot in the city of New-York, and to restrain the defendants Gundrey and his wife, or either of them, from proceeding to sell the premises by virtue of a power of sale contained in the will of J. F. Mason.

This was an application on the part of Langdon and wife, two of the defendants, to set aside the order taking the bill as confessed in this cause against the defendant, J. Langdon, with costs. The bill was filed to foreclose a mortgage given by J. Langdon to W. Hunt; which mortgage was afterwards duly assigned to the complainant. At the time of the giving of the mortgage Langdon and his wife resided in the state of New-Hampshire.

This was an appeal from an order of the vice chancellor of the seventh circuit, dissolving an injunction, on the ground that the bill had not been served as required by the 35th rule of the court of chancery. The solicitors of the respective parties resided in different counties, but within twenty miles of each other. The complainant’s solicitor had filed an appointment of agent; but, by mistake, his name had not been entered in the book of agents kept by the clerk.

This case came before the court upon the return of a writ of habeas corpus ad subjiciendum directed to the defendant, the father-in-law of the relator, commanding him to bring before the court the wife and the infant child of the relator, alleged to be detained from him by the defendant.

This was an appeal by the defendant, Champlin, from an order of the vice chancellor of the eighth circuit, overruling a demurrer. The bill was filed to foreclose a mortgage given by the defendant, Champlin, to P. Hodge, and afterwards assigned to the complainant.

This was an appeal by the defendants from a decision of the vice chancellor of the first circuit, refusing to dissolve an injunction. The suit was an ordinary creditor’s bill against the defendants in the execution, and was verified by the complainant only. He did not swear positively to the recovery of the judgment or to the return and filing of the execution.

This was an application for the appointment of a receiver upon an ordinary creditor’s bill; and the only question in the case was whether the bill was defective in not stating the residence and occupation of the complainant.

This case came before the court upon an order for the defendant to show cause why an injunction should not issue, restraining him from printing, publishing or circulating a newspaper under the name of the New Era.

This was an application to set aside the proceedings of the complainants, upon exceptions to the defendants’ answer, for irregularity. The exceptions were filed and served in time, and an order was entered referring the exceptions to a master, within the ten days specified in the fifty-first rule of this court. But no copy or notice of that order was served upon the defendants’ solicitor, and no proceedings were had upon the reference, within the ten days.

<p>This was an application to dismiss the complainant’s bill, with costs, or for such other order in the premises as might be proper upon the facts of the case. The complainant had filed a bill for the same cause of action and obtained an injunction ; which injunction, upon the coming fin of the answer of the defendants, was dissolved by the order of the chancellor. The complainant thereupon entered a common order to dismiss his bill; and without paying or offering to pay the costs of the defendants in that suit, immediately filed the bill in this cause, and obtained another injunction ex parte, upon the certificate of an officer authorized to allow injunctions out of court.</p>

<p>This case came before the court upon an appeal from a decretal order of a vice chancellor. The bill was filed by the complainants as judgment creditors of the defendant, to reach, among other things, his interest in an annuity of $400 given him by the will of his father, who died fifteen days before the filing of the bill in this cause. The will directed the executors to set apart from the testator’s personal property a sum sufficient, at an interest of six per cent per annum, to produce the annuity, and to pay the annuity to the defendant out of such interest in quarter yearly payments during his natural life ; and to pay the principal of the fund to his issue if he died leaving issue ; but if he died without leaving issue, the fund was limited over to other persons named in the will. The bill charged, among other things, that the defendant was less than thirty years of age, in good health, of sound constitution, perfectly able to support himself by honest industry, and well capacitated to accumulate property if inclined to do so. It also charged that he was in no respect destitute of the will, discretion, or power, to manage property for himself with ordinary discretion and forecast, and was in all respects competent and of abundant discretion to hold and manage property for himself discreetly and judiciously. The defendant in his answer admitted that he was but twenty-two years of age at the time of filing the bill, and that he was in good health ; but alleged that he had no trade, business or calling, whereby he could earn a livelihood; that he lived with and was supported by his father at the time of his death 5 and that from that time until the putting in the answer, about ten months afterwards, he had lived with hie stepmother or some other member of the family, who had supported him. The complainants excepted to the answer for insufficiency, 1st. Because he had not answered whether he was of sound constitution; 2d, That he did not answer whether he was able to support himself by ordinary industry if inclined to do so; and 3d. That he did not state in his answer whether he was destitute of the will, discretion, or power to hold and manage property for himself with ordinary discretion and forecast. The master reported that all these exceptions to the answer were well taken ; and the vice chancellor confirmed the decision of the master, upon exceptions taken to the report. From the order of the vice chancellor overruling the exceptions to the master’s report the defendant appealed.</p>

The bill in this cause was filed by the executrix and the executors of Henry Eckford, deceased, who were also the trustees of his real estate under his will, for the purpose of redeeming a lot of land in the city of Hew-York, containing about nine acres, conveyed by the testator to Mrs. Drake, in August, 1826, in trust for his infant grand daughter, now the wife of the defendant G. C. De Kay; which conveyance as the complainants alleged was intended to be a mortgage merely.

The object of this suit was to obtain a judicial construction of the will of Abraham Van Vechten, deceased ; several questions having arisen between the executors and some of the devisees and legatees, as to the meaning of many of the provisions of the will, as well as to the validity of most if not all of the trusts contained therein.

This was an application on the part of L. Badger and L. W. Badger, two of the defendants, that the complainant’s bill be dismissed with costs ; or, that he should elect whether he would proceed at law or in equity for the satisfaction of his judgment which had been obtained in the supreme court against J. Crooker and L. Badger.

<p>' This was an application for an injunction to restrain the defendants from using, or granting to any other person the right to use, a planeing machine in the county of Albany, in virtue of a patent granted to William Woodworth, in November, 1836. The ground upon which relief was sought was, that this patent was an infringement of a right which the complainants claimed they had obtained under a previous patent to Woodworth ; which they alleged to be substantially the same improvement for which the last patent was obtained. They also claimed the right to the benefit of the last patent for the county of Albany, as the assignees of a covenant or covenants entered into by Woodworth with the assignees of the first patent. In opposition to the motion the affidavit of Woodworth was produced, in which he stated that the machine for which he obtained the patent in 1836, was not an infringement upon, nor in addition to the machinery of the planeing machine previously patented to him, and claimed by the complainants as special assignees; ncc was it an alteration of such previous patent.</p>

<p>This case came before the court upon exceptions to a master’s report, settling issues to be tried by a jury, and determining the .place of trial. One of the complainants, for the purpose of inducing the master to fix the place of trial at New-York, made an affidavit in which he swore, without any qualification whatever, that fifty-two persons, whose names were given, residing in the city of New-York, were all material witnesses for the complainants on the trial of the issues ; and that they could not safely proceed to trial without the testimony of each and every of those witnesses. But it was not stated in the affidavit what they expected or believed they should be able to prove by any one of those witnesses. On the other hand, one of the defendants swore to forty-six witnesses residing in the county of Monroe, and twenty or thirty in the adjoining counties, most of whom would be material witnesses for the defendants, upon the trial, if certain questions as to a mercantile custom were to be tried; and if not, that seven of the witnesses residing in the county of Monroe, would be material upon the trial, without reference to those questions. The master came to the conclusion that those questions would not arise upon the trial of the issues which he framed. He therefore reported that the trial should be had in the superior court for the city of New-York ; without requiring the complainants to state on oath what they expected or believed they should be able to prove by either of their fifty-two witnesses in New-York. To this report the defendants excepted.</p>

<p>Where real estate was conveyed to a feme covert, by her mother, previous to her marriage, and a judgment was afterwards recovered against the gran, tee and her husband as heirs at law of the mother, upon the ground that the deed was fraudulent, which judgment was subsequently reversed by the court for the correction of errors; and before such reversal the land was sold under the judgment, and the husband received a considerable sum for the surplus money on such sale; Held, that the wife who had recovered back her land from the purchaser subsequent to the death of her husband, was not liable to such purchaser for the surplus moneys received by her husband on the sale, nor for the value of the improvements made upon the premises while they were held adversely to her and her husband under the sheriff’s sale; but that the value of permanent improvements might be offset against her claim for mesne profits.</p> <p>Where the estate of a feme covert is sold on a judgment, recovered against her as an heir or devisee, her husband at law is entitled to receive from the sheriff the surplus moneys raised on the sale, beyond the amount of the debt and costs; and she cannot be made personally liable for such surplus moneys, although the sale should afterwards be found to be invalid and inoperative to convey the legal title of the land to the purchaser. Nor can her separate estate be made liable for such moneys, except so far as they have been applied for the benefit of such estate.</p> <p>Whether a court of equity can protect the surplus moneys arising on a sale of the real estate of a feme covert, upon a judgment and execution against her and her husband, so as to prevent its going into the hands of the husband for his own use without any provision for her support out of the same, Qurzre ?</p>

<p>Where the vice chancellor before whom the proceedings were pending, upon the application of the creditor of an habitual drunkard, settled the amount due, and directed the committee to pay the same, together with the costs of the application, out of the estate of the drunkard ; and authorized the committee, if necessary, to sell the real estate for the purpose of raising funds to pay the debt; and also authorized the creditor to file a bill against the committee to recover his debt and costs, if the order Was not complied with ; Held that the part of the order authorizing the filing of a bill, after the debt had been liquidated and settled and decreed to bo paid, by the previous part of the order, was erroneous ; as subjecting the estate to the costs of a useless litigation. And that the proper course to be pursued in such a case was to compel the committee to comply with the order to pay the debt and costs out of the estate, by summary proceedings against him.</p> <p>Where it is necessary for the creditor of a lunatic or an habitual drunkard to file a bill against the committee, to establish a debt and to obtain satisfaction thereof out of the estate of the lunatic or drunkard, it seems the lunatic or drunkard may also be made a party defendant in the suit; so as to make the proceedings binding upon him in case he should be restored to the possession and control of his estate before the termination of the suit.</p>

This was an appeal from the sentence or decree of the surrogate of the county of Orange, upon the settlement of the account of the appellant as the surviving executor of his deceased brother, James Clark, who died in 1813. The decedent by his will appointed his wife and his brother the executrix and executor thereof, and authorized them to sell his real and personal property, with the exception of some few articles specifically bequeathed to his wife.

This case came before the chancellor upon an appeal by the complainants from a decree of the vice chancellor of the first circuit, dismissing their bill as against the defendants Maria Clarke and Robert Bogardus her trustee.

The object of the complainant’s hill in this case was to foreclose a mortgage given to him by Daniel Knapp, one of the defendants ; and the only question arising upon the pleadings and proofs was,… Held: which arrangement of the son the father sanctioned, when informed of it.

This was an appeal by Woodburn and Dey Ermond, two of the defendants, from a decision of the vice chancellor of the seventh circuit, denying their application to open a decree which had been taken against them by default, and to permit them to put in an answer and defend the suit.

This case came before the chancellor on an appeal by the complainant from a decree of the vice chancellor of the fourth circuit.

This was an application to dismiss an appeal from an order of the vice chancellor of the first circuit, authorizing the complainant to re-swear his bill, and file it nunc pro tunc. The objection to the regularity of the appeal was that the appeal bond was acknowledged before the vice chancellor, instead of an officer authorized by law to take the acknowledgment of deeds, &c. as required by the 172d rule of the court.

This was an appeal from a decision of the vice chancellor of the first circuit, refusing to dissolve an injunction. J. Meserole, the father of the complainants, who died in 1827, was at the time of his death seized in fee of a lot of land in the town, now city of Brooklyn, containing about. 23 acres; and by his death the same descended to the complainants, who were then infants under the age of four years, subject to the right of dower of their mother therein.

This was an appeal from a decision of the surrogate of the city and county of New-York. The respondents, who, as the executors of the will of their deceased father, were creditors of the estate of A. Gracie, deceased, cited the appellant, N. Rogers, as the surviving executor of the will of the last mentioned decedent, to account before the surrogate pursuant to the directions of the statute.

This was an appeal from a decree of the late vice chancellor of the fourth circuit, granting a perpetual injunction, restraining the defendant from proceeding to foreclose a mortgage given to him, under the following circumstances : Previous to the revolution, Sir William Johnson, who was the owner in fee of lot No. 160 in the western allotment of the Kingsborough patent, containing about 113 acres, agreed to lease the same in fee to the father of the complainant, at the…

This was an appeal from a decision of the vice chancellor of the eighth circuit, relative to the surplus moneys raised upon the foreclosure and sale of mortgaged premises which were sold under the decree in this cause. The premises originally belonged to Norton, the complainant, who sold the same to the defendant Stone in 1834, and took back the mortgage which was foreclosed in this suit, to secure the payment of the purchase money.

This case came before the chancellor for hearing upon the pleadings and proofs. The facts in the case, so far as they are necessary to understand the decision, are stated in his opinion and in the previous reports of the case in this court, and in the court for the correction of errors. Nehemiah Rogers, as executor, must be decreed to account for all the assets of his testator, A. Gracie, according to a legal course of administration as the law was prior to 1830.

This was an appeal from a. decree of the vice chancellor of the fifth circuit, declaring an absolute deed from the complainant to the defendant M. Grant a security in the nature of a mortgage merely. The answer of the defendants on oath was waived, and the case therefore depended upon the evidence in the cause ; except so far as the factse were admitted in the answer of the defendants.

This case came before the court upon the petition of Sophia, the wife of Abel Robert, one of' the defendants, claiming her share of the estate of her father, which was in controversy in this suit, as her separate estate free from the control of her husband, under an ante-nuptial agreement between them.

This was an appeal from an order of the vice chancellor of the first circuit denying an application for an attachment against the defendant Vaughan for refusing to deliver over a store of goods to the receiver ; or for an order directing him to deliver up the property to the receiver.

This was a plea to a bill of revivor. The original bill was against Eliza Evertson, as executrix of Nicholas Evertson deceased, to reach certain property which she had received as such executrix, hut without right, and which in equity belonged to the complainants. And a decree was thereupon made for an account, to ascertain what had been received by her on the bonds and mortgages in which the complainants had an interest, and what still remained due thereon.

<p>Where the owner of property subject to the lien of a mortgage conveyed a part of the premises to M., and afterwards received the purchase money, and subsequent to that conveyance sold the residue of the premises for the full value thereof to H., under an agreement that the purchase money should all be applied upon the mortgage, and that the premises thus sold to H. should be released from the lion of the mortgage, and the mortgagee released the same accordingly; Held, that such release did not discharge the part of the premises first conveyed from the lien for the residue of the money due upon the mortgage.</p> <p>The rule of charging different parcels of land, subject to a common incumbrance, in the inverse order of their alienation, is a mere rule of equity; and as a release to a subsequent purchaser of one parcel of the land is not a technical discharge of the lands previously conveyed from the lien of the incumbrance, it is not an equitable release except in those cases where upon the principles of natural justice and equity it ought to thus operate against the releasor.</p> <p>Where a mortgagee whose mortgage is a lien upon two parcels of land, subsequently conveyed by the mortgagor to different purchasers, releases the piece last convoyed from the lien of his mortgage, without any notice, either actual or constructive, that the other parcel had been previously sold by the mortgagor, he does not thereby, discharge the parcel not released.</p>

This was an appeal from a decree of the vice chancellor of the fourth circuit. The defendant in July, 1831, recovered a judgment in the supreme court against the complainant and J. B. Matthews, for $475,65, damages and costs, and issued an execution thereon, which was returned unsatisfied. He thereupon filed a creditor’s bill against the defendants in that judgment, to obtain satisfaction of his debt out of their equitable assets and choses in action.

The bill in this cause was filed by F. De Peyster, the administrator with the will annexed of J. Clendining, deceased, to obtain a judicial construction of the will of the decedent. The testator resided in the city of New-York, and made his will in 1829, and died in January, 1836, possessed of a considerable real and personal estate.

These cases came before the chancellor upon appeals by Asa Marvin, the complainant in the first cause and the defendant in the last, from the decrees of the vice chancellor of the eighth circuit in the said causes respectively.

. . . This was an application to dissolve an injunction upon bill and answer. The facts upon which the question arose were briefly these : The complainants sold to J. M. Smith, of Auburn, a bill of goods, upon his application to them by letter, stating to them that if they would send the goods and draw on him for the amount at four months, payable at the Bank of Auburn, he would get the defendant to endorse the draft and send it back to them.

The bill in this cause was filed by the acting executors and trustees of J. B. Yates, deceased, to obtain a judicial construction of his will, so far as related to the rights of the defendant, his widow.

The bill in this cause was filed by the widow, and administratrix with the will annexed, of H. F. Bayeaux, deceased, for the purpose of obtaining a construction of his will. The testator died at the city of Troy, in March, 1839, leaving a widow and three infant children, who are the parties in this cause. By his will, made a few months before his death, he disposed of his property as follows : “ First.

This was an appeal by Staples & McKeon, two of the defendants, from an order discharging Brown, Mason and Browning, who were purchasers of certain portions of the mortgaged premises, at a master’s sale, from their purchases ; unless the appellants would consent that certain assessments upon the lots purchased be paid by the master out of the purchase money. '

This case came before the chancellor upon the appeal of the complainant from a decree of the vice chancellor of the first circuit, dismissing the bill as to all the defendants; and upon the cross-appeal of the defendants, Coster and Dey, from so much of the vice chancellor’s decision as refused them their costs against the complainant.

The bill in this cause was filed to set aside various sales and conveyances of lands claimed by the complainant, and among other things, to set aside a sale made under a decree of the vice chancellor of the first circuit, in a suit for the foreclosure of a mortgage.

This was an appeal from a decision of the vice chancellor of the first circuit, overruling the demurrer of the defendants to the complainant’s bill. In 1825, T. R. Mercein was the owner of a block of ground in the city of New-York, between McDougal street and the Sixth avenue, on the south side of Waverley Place ; which he divided into thirty-nine building lots, and made a map of such division, and filed it in the office of the register of deeds.

The bill in this cause was filed to foreclose a mortgage given to the complainants, by the defendant Maitby, in October, 1835, on four lots in Buffalo, numbered on a diagram annexed to the answer in this cause, lots 1, 2, 3 hnd 4 ; which mortgage was recorded on the 10th of the same month. The cause was heard upon bill and answer as to the defendants Linhart, Buchanan, and Hodge ; and upon the bill taken as confessed as to the other defendants.

Perley Keyes, by his will made in September, 1833, a few months previous to his death, after giving a legacy of $1000 to his son-in-law and $10 to his son, devised and bequeathed unto W. Wood, his son-in-law, all his real and personal estate, in trust for the use, benefit and support of the testator’s daughter Marietta, subject to the several gifts, bequests and provisions contained in the will.

<p>Where the parties to a foreclosure suit stipulated to refer it to the vice chancellor before whom the suit was pending, to ascertain whether the premises could be sold in parcels, and to report the amount due and to become due on the bond and mortgage, and that upbn filing his report, the usual decree of sale should^be entered in conformity therewith; Held, that the complainant was entitled to a decree immediately upon filing such report, and without waiting the usual time to give the defendants an opportunity to except to the report.</p> <p>A reference may be made to a vice chancellor, with his assent, although the suit is pending before him. And where there is no agreement to the contrary, the proceedings upon such reference are to be conducted in the usual manner; and the parties may except to the report as in other cases»</p>

This was an appeal by the complainant from a decision of the vice chancellor of the first circuit, setting aside an ex parte order in this cause for the appointment of a receiver, upon a creditor’s bilk The defendant was an absentee, and the complainant not being able to serve the subpoena, in consequence of such absence, obtained the usual order to advertise for the defendant to appear.

' This was an appeal from a decision of the vice chancellor of the first circuit, upon the construction of the will of C. Sambler, deceased.

This case came before the chancellor upon an appeal by Robert Vernon, a judgment creditor of the Eagle Iron Works, from an order of the vice chancellor of the first circuit.

<p>This was an appeal from an order of the vice chancellor of the first circuit, confirming the master’s report of the appointment of receivers of the Eagle Iron Works, upon a voluntary dissolution of that corporation. It appeared from the petition, for the dissolution of the company, that the corporation was insolvent. Upon the reference to the master to appoint a receiver, or receivers, some of the creditors nominated N. Waterbury, the late president, and S. Leeck, the book-keeper of the company, for such receivers ; and the appellants, who claimed to be a majority of the creditors, nominated J. H. Cornell. The master, after hearing the proofs of the respective parties, approved of the two first as receivers ; and took from them the requisite security, which was filed with his report of the appointment. The creditors who had nominated Cornell, thereupon filed exceptions to the report; which exceptions were overruled by the vice chancellor, and the report of the master was confirmed. From that decision the creditors last mentioned appealed,</p>

This was an appeal by W. H. Willard, the receiver appointed in this cause, from an order the of vice chancellor of the first circuit, upon the petition of Lester, Holmes & Co. authorizing them to bring an action against the receiver, and other persons acting under .him, for an alleged trespass, in forcibly entering a store which the petitioners claimed to belong to them, and to be in their possession, and taking the goods therein, and retaining the same until they paid into…

This was an appeal from an order of the vice chancellor of the eighth circuit, dissolving an injunction. Beebe, one of the complainants, was the owner of a lot of land in the town of Gates, the principal value of which, consisted in the wood and timber standing and growing thereon ; and the other two complainants were the assignees of a mortgage which Beebe had given upon the same lot to secure the payment of a debt.

This was an appeal from a decree of the late vice chancellor of the third circuit. The object of the complainant’s bill was to compel the defendant, who was the assignee of a lease for lives, of land of which the complainant owned the rent and reversion, to pay to her a tenth of the purchase money agreed to be paid to him by those who had contracted to purchase his interest in the lease, but who had not received any legal conveyance or assignment thereof.

This case came before the court upon a demurrer to the complainants’ bill.

The object of the bill in this case, was to compel the other personal representatives of Henry Eckford deceased^ tó pay to the complainant, as one of those representatives, an annuity of $1200, from the death of Mr. Eckford, in 1832, to 1840, the time directed in his will for the distribution of his estate among his legatees and devisees.

This was an application on the part of the complainant to dismiss an appeal, which had been entered by the defendants, from a decree of the vice chancellor of the fifth circuit. The application was founded upon a technical defect in the certificate of the officer who approved the appeal bond.

■ This was an application on the part of the defendant, Dodge, for a dissolution of the injunction, which had been issued upon a creditor’s bill, restraining him from parting with or using the property of the judgment debtor, which he claimed as assignee for the benefit of the creditors of Emery. A cross application was also made on the part of the complainants for the appointment of a receiver.

This was an appeal from a decree of the vice chancellor of the first circuit, dissolving the injunction which had been issued in this cause, and dismissing the complainants’ bill with costs.

This was an application on the part of the defendants, apon bill and answer, to dissolve the injunction which had been issued in this cause. The object of the complainant’s bill was to obtain the specific performance of a contract for the sale of a lot of land in the county of Allegany, and to restrain the defendants from selling the lot or ejecting the complainant therefrom.

This was an appeal from, a decision of the vice chancellor of the eighth circuit, denying a motion to dismiss the complainant’s bill for want of prosecution. The application was founded upon an affidavit sworn before one of the commissioners of deeds, recently appointed by the governor, with the consent of the senate, for the city of Buffalo.

This was an application to refer a cause, and the only question was as to the regularity of the service of the notice of the motion ; such service having been made upon the chancery agent appointed by the defendant’s solicitor, in the city of New-York, instead of being served upon the assistant register, as the agent appointed by the 7th section of the act of May, 1840, concerning costs and fees in courts of law and for other purposes.

The bill in this case was filed by one of the children of Thomas West deceased, against his five brothers and sisters, and the husband and two children of a deceased sister, and against C. Brakefield and J. Millham, for an account of the rents of the decedent’s real estate, and of the surplus monies arising from a sale of such real estate under a statute foreclosure of a mortgage thereon ; and for a distribution of such rents and surplus monies among the heirs at law of the…

This was an application to dissolve an injunction restraining thá defendant Rockett from receiving, and the insurance company from paying, the amount due the former upon a policy of insurance, on a house in Westchester county which had been destroyed by fire.

This was an appeal from a decision of the vice chancellor of the first circuit, overruling a demurrer to the complainant’s bill. The object of the bill was to restrain the prosecution of a suit in the supreme court, in an action of debt on a judgment recovered by the present defendants, against the complainant and A. Stevens, in the court of common pleas of the state of Massachusetts.

This case came before the court upon the application of J. Calf, one of the next of kin of Catherine Roberts, deceased, to establish the will of her husband, whom she survived, as a valid will of personal estate.

This was an application on the part of J. Brackett, one of the solicitors of this court, for an order directing the committee of S. Conklin, who had been found a lunatic upon a commission issued for that purpose, to pay the petitioner his costs and counsel fees, for opposing the prosecutor upon the execution of the commission.

This was an appeal from a decision of the vice chancellor of the first circuit, denying an application for an issue. The bill was filed to foreclose a mortgage given by Henry Dudley, deceased, and Helen C. his wife, upon 49 lots of land in the city of New-York, the property of the latter, to J. L. & S. J. Joseph and M. Henriques $ to secure the payment of a bond executed by H. Dudley and N. W. Stuyvesant, for $130,000 and interest.

This case came before the court for a construction of the act to reduce the expense of foreclosing mortgages in the court of chancery,” in reference to the compensation of masters, upon sales under decrees of foreclosure. The premises sold for $9000, leaving a balance still due from the mortgagor.

This was an appeal from a decision of the vice chancellor of the fifth circuit, suppressing the deposition of the defendant, Palmer, and refusing to suffer it to he read as evidence… Held: purporting to be signed by Palmer •, and which was endorsed by S. H. Macy and B. Rathbun. The bond and mortgage were sold to Burt for $3500 ; and he paid Palmer the balance or difference between that' sum, together with the $1000- payment, and the note; which note was given up to Palmer.

This was an application, upon a creditor’s bill, for the appointment of a receiver. The judgment against the defendant was recovered in the supreme court, in a suit commenced previous to the first of June, 1840, when the act concerning costs and fees in courts of law and for other purposes,” went into effect.

This was an appeal from a decision of the vice chancellor of the first circuit, denying a motion for a dissolution of an injunction. Held: that as it did not distinctly appear from the bill and answer that the complainant might not, at the hearing, be able to make a good title to the Illinois lands, it was proper to retain the' injunction, restraining the defendant from receiving the rents and profits of the lands, in New-York, which he wasto' convey to the complainant;…

This was an appeal from a decision of the surrogate of Cayuga county, requiring the appellant, as the executor of his father’s estate, to give security for the performance of his trust. Held: however, that the appellant’s property did not afford such security for the due administration of the estate as would have been taken had he applied for administration in a case of intestacy.

This was an application, on the part of the appellant, to produce further testimony as to the capacity of the decedent to execute a will.

This was an an appeal from a decree of the vice chancellor of the first circuit; and the only question was whether in a mortgage case the court could make a decree against the mortgagor, for the payment of the deficiency, in anticipation of the master’s report.

This was an appeal, by the defendant, from an ex parte order of the vice chancellor of the eighth circuit, referring it to a master to appoint a receiver of the property described in the complainants’ bill in this cause ; and of the rents and profits of the farm also described therein, then or lately occupied by the defendant, and of all the crops growing thereon, or which had been cut therefrom during his occupancy, and then remaining in his possession or under his control…

This suit was brought to foreclose a mortgage given by the defendant F. P. Graham, to the complainant, upon the house and lot No. 371, Broadway, in the city of New-York. And this was an application on the part of the complainant to compel J. Titus Johnson, the purchaser of the premises at the master’s sale, to complete his purchase. The premises were sold for a perfect title ; subject, however, to a lease thereof for a term of years, at an annual rent of $400.

<p>Where the instrument propounded as a will was wholly in the hand writing of a third person, and was executed by the decedent merely by signing it and acknowledging it to be her hand and seal in the presence of the subscribing witnesses, and the instrument was not read, nor was any thing said at the time from which the witnesses understood it to be a will; Held, that it was not duly executed and published by the testatrix, so as to make it a valid will, under the provisions of the revised statutes; although the attestation clause, which was not read by or in the hearing of the witnesses, stated the will to have been duly published in the presence of such witnesses.</p> <p>The revised statutes having provided, that the testator, at the time of signing or acknowledging his will in the presence of each of the witnesses thereto, shall declare the instrument so subscribed to be his last will and lestament, there must be an actual publication of the instrument, as a will, in the presence of the subscribing witnesses; in addition to the other formalities required by the statute.</p> <p>No particular form of words is necessary to be used by the testator in declaring the instrument signed by him to be his will, if he actually communicates to the attesting witnesses the information, that he knows and understands the nature of the instrument he is executing, and intends distinctly to recognize it as his will.</p> <p>But to render a will valid, under the provisions of the revised statutes, the subscribing witnesses thereto must, at the time of its execution, know it to be a will; and must also know that the testator understands it to be and means to execute it as a will.</p> <p>Where the attestation clause is in the usual form, stating the will to have been executed and published by the testator as his last will and testament, in the presence of the witnesses, specifying that all the requisite formalities were complied with, if such attestation clause is read over in the presence and hearing of the testator and lhe witnesses and understood by him and them, a request from the testator that they will subscribe the same as witnesses to liis execution thereof, will of itself be a sufficient publication of the instrument as his last will and testament.</p> <p>And where the subscribing witnesses to a will have subscribed their names as witnesses at the end of an attestation clause, showing that all the formalities requisite to a valid execution of the will were complied with, the mere inability of the witnesses to recoiled that the testator published the instrument as Ills will, is not sufficient to in validate the same, unless the witnesses recollect that he did not declare it to be his will, and that the attestation clause was not read and understood at the time of the execution of the instrument.</p> <p>So in the case of the death of the subscribing witnesses to a will, their signatures, at the end of an attestation clause stating, in the usual form, that all the formalities required by law were complied with, would, when duly proved, bo sufficient evidence that the will was executed and published by the testator in duo form.</p>

<p>This was an appeal from a decree of the former vice chancellor of the eighth circuit, the Hon. Addison Gardner, allowing a demurrer to the complainant’s cross-bill; and dismissing such bill with costs. Webster filed a bill against Jennings for the purpose of foreclosing and obtaining satisfaction of a bond and mortgage, given to the former by the latter in 1835. Jennings thereupon filed his bill in this cause, in the nature of a cross-bill, for the purpose of obtaining a decree to set off, against the monies due on the bond and mortgage, the damages sustained by the breach of an agreement, made by Webster with D. Stone, in 1825, to keep in repair a certain dam ; for the convenience and benefit of the clothing works and carding machine of Stone. The cross-bill alleged, that in 1835 the complainant Jennings and another person purchased the clothing works and other machinery of Stone, who assigned to them all his interest in the agreement; and such other person subsequently assigned all his interest in such agreement to the complainant. The bill, after stating several breaches of the agreement, both before and after the purchase from Stone, and the filing of the bill to foreclose the mortgage, prayed an account of the damages sustained by the breaches of the agreement, and that the same might- be offset against the amount due on the bond and mortgage ; and for a decree against Webster for the balance, if any should be found due.</p>

This was an appeal from a decision of the vice chancellor of the seventh circuit, refusing to set aside an order of publication against Becker and Tremells, two of the defendants, and the subsequent proceedings thereon, for irregularity.

The bill in this cause was filed to foreclose a mortgage upon four lots, lying together, in the city of Rochester, on each of which lots there was a store. The ¡New-York Life Insurance and Trust Company were the first mortgagees, and had two separate mortgages, of |1500 each, on undivided moieties of the premises. The complainant was the second mortgagee of the whole premises, and there was about $1100 due on his mortgage.

The bill in this cause was filed for the partition of the undivided lands in Adgate’s eastern purchase, in the counties of Oneida and Herkimer, and was taken as confessed against the defendants who were made parties as known owners, upon a personal service of the subpoenas upon them respectively; and the complainant advertised, under the statute, as against certain unknown persons or who were supposed to be owners, or tenants in common with Nicholas Gouvernier, of an…

Upon the application of John Calf, the brother and one of the next of kin of Catharine Roberts, the decedent, and one of the executors named in the codicil to her will, a commission and letters rogatory were issued to the island of Cuba, to take the proof of her will and codicil, alleged to have been executed at the Havana, in 1838.

This was an application for an injunction, to restrain the defendant from selling, hypothecating, or parting with certain bonds or certificates of public stocks of the state of Illinois, or the proceeds thereof; and for the appointment of a receiver of the bonds or certificates which remained in the hands of the defendant, and of the proceeds or avails of such of the stock as had been sold.

The affidavit upon which the motion in this case was founded, was entitled Broughton White v. Frederick Hess and others,” without setting forth the names of all the other defendants in the suit; and was objected to on that ground.

James Porter having in his hands two sums of money, one as the trustee of Jane Cantine and her children, and the other as the trustee for S Hy Ann Visscher, loaned both sums to the defendant Canfield, at the same time. He took separate mortgages therefor, upon the same property, executed and acknowledged at the same time, and bearing the same date; and without intending to give the one a preference over the other.

This was an appeal from a decree of the late vice chancellor of the eighth circuit. The facts in the case, so far as they could be ascertained by the admissions of the defendant Follett in the joint and several answer put in by him and his copartner Á.

This was an appeal from a decree of the late vice chancellor of the 8th circuit, setting aside two assignments of the property of Bolard to Pickard, and a judgment given by the former to the latter, as fraudulent and void ; and directing the judgment of the complainants against Bolard to be paid by the defendant Pickard, the fraudulent assignee, out of the assigned funds in his hands; together with the costs of this suit.

This was an appeal from a decree of the vice chancellor of the first circuit, allowing the demurrer of the defendant Salmon to the complainant’s bill, for want of equity. The bill was filed to prevent the collection of a bond and mortgage given to the defendants Salmon and Simonson, and afterwards assigned by them to the other defendant in this suit; and to have such bond and mortgage declared void by a decree of this court, and delivered up and cancelled.

The bill in this cause was filed, in February, 1838, to foreclose a mortgage given by Stebbins and wife to the Sea Insurance Company, to secure the payment of |5000 and interest. The mortgagor appeared and answered the bill, and the cause was put at issue, by filing a replication to the answer, on the 3d of December in the same year.

This was an appeal from an order of the vice chancellor of the fifth circuit appointing a receiver upon a creditor’s bill. The bill, among other things, sought to reach the compensation of the defendant Bettis, as an assistant to Garrow, the marshal of the northern district of New-York, in taking the sixth census.

This was an appeal from a sentence or decree of the surrogate of the county of Rensselaer, declaring that Abigail Rose, the respondent’s intestate, the widow of John Rose deceased, became entitled to one third of his personal estate ; and decreeing payment thereof to the respondent as her personal representative.

This was an appeal from an order of the vice chancellor of the first circuit, compelling the wife of C. H. Kauffman, a defendant in a creditor’s bill, to submit to an examination before the master to whom it was referred to appoint a receiver of her husband’s property, equitable interests and choses in action.

This was an appeal from an order of the vice chancellor of the first circuit, setting aside the complainant’s order taking the bill as confessed against the defendant Andrews, and all subsequent proceedings thereon, for irregularity, with costs.

This was an appeal from an order of the vice chancellor of the eighth circuit, dissolving an injunction.

This was an appeal from a decree of the vice chancellor of the fourth circuit, dismissing the complainants bill with costs. The bill was filed against W. F. Brackney in his life time, for the purpose of compelling the specific performance of a contract made by bim for the purchase of a tannery and other lands connected therewith, in the county of Déla vare, in December, 1886.

The bill in this case was filed by the complainant, the wife of Á. Hay, against the surviving committee of her husband, and also against the -executors of Sv, Brown, deceased, who had also been one of such committee.

This was an application on the part of the complainant for a retaxation of the costs of the defendants. The bill was originally filed against Juliet Lewis and three others, (all of whom claimed an interest in the property of the late Stewart Lewis, which had been purchased by the complainant upon execution,) to set aside certain judgments and conveyances, under which the defendants claimed title to the property, as fraudulent.

This was an application by the solicitor for the overseers of the poor, upon whose application a commission in the case of an habitual drunkard had been issued, for the payment of ihe costs of the proceedings, which had been taxed at a sum exceeding the amount of §50, specified in the 162d rule of the court.

This was an appeal from a decision of the vice chancellor of the first circuit, refusing to dissolve an injunction. In 1838, G. G. Root being the owner of three lots of ground in the city of New-York, mortgaged the same to the commissioners for loaning certain monies of the United States for the county of New-York, to secure the payment of $4000, loaned by them under the provisions of the act of the 4th of April, 1837.

This was an appeal, by the complainant, from an order of the vice chancellor of the fifth circuit, for a commission to take the testimony of A. Dart, one of the defendants, as a witness in behalf of his co-defendant, The Bank of Utica and to extend the time to close the proofs for sixty days, to enable the respondent to get the commission executed and returned.

This was an application to dissolve an injunction upon the matter of the bill only.

This was an appeal from a decretal order of the vice chancellor of the first circuit, overruling the plea of the defendant Stevenson. The bill was filed to foreclose two mortgages, given to the complainants by the defendants D. Rogers and wife and S. D. Rogers and wife ; and the bill contained the usual averment that no proceedings at law had been had, by the complainants, for the recovery of the money secured by the bonds and mortgages mentioned in the bill.

• This was an application on the part of N. S. Benton, one of the defendants in a foreclosure suit, for the surplus moneys arising from a sale of mortgaged premises upon a decree; under the act of the 14th of May, 1840, to reduce the expense of foreclosing mortgages in the court of chancery.

This case came before the court upon an appeal by J. H. Titus, from two orders of the vice chancellor of the first circuit; the one denying the appellant’s application to be discharged from his purchase of a lot in the city of Brooklyn, made at a master’s sale under the decree in this cause, and the other directing him to pay the balance of the purchase money, and complete his purchase.