Volume 9 — Paige's Chancery Reports

This was an appeal from, an order of the vice chancellor of the first circuit, denying the application of the complainants to set aside an order made by master Moore to commit the prosecution of the reference to Samuel Glover, as the solicitor of Sarah Glover and Martha Glover two of the defendants.

The bill in this cause wras filed for the purpose of obtaining a decree, against the receiver of the City Bank of Buffalo, to deliver to the. complainants a package of $6000 of the bills of the bank, under the following circumstances.

This was an application for an injunction to restrain the collection of an assessment for the widening, straightening and improving John-street, in the city of New-York, between Broadway and Pearl-street.

The bill in this cause was .filed by the husband, against his wife, to annul their marriage contract, on the ground of the physical incapacity of the wife. On the coming in of the answer, the complainant applied for an order, directing the defendant to submit to a surgical or medical examination j for the purpose of enabling him to satisfy the court of the existence of the alleged incapacity at the time of the marriage.

<p>This was an appeal by James Barhydt, one of the defendants, from a decretal order of the vice chancellor of the third circuit. The object of the suit was to obtain satisfaction of a bond debt of about $700 which was due to W. Adams, the complainant’s testator, from John J. Barhydt deceased, the father of the appellant, at the time of his death. John J. Barhydt died in December, 1813, possessed of considerable real estate, but not leaving sufficient personal property to pay his debts. He left four sons— James, Jeronimus, John S., and Henry, and two daughters— Alida Van Dyck, and Mary the wife of G. Clow, his only children and heirs. By his will he devised to his son James, the appellant, his brick house and lot in Green-street, in the city of Schenectady, and half a morgan of land adjoining the same; subject to the payment of ¿6200 to Henry and to the use of the house by Henry for the term of two years. He also devised to Jeronimus two lots of land ; and to John S., the upper half of his farm, about six miles from Schenectady, and the other half thereof to the son of John S.; and charged John S. with the payment of legacies to the amount of ¿£500, to Henry and hrs~iwo sisters and a daughter of one of the sisters. He also devised to Henry his pasture lot purchased of Maybie, containing about eleven acres ; and the residue of his lot north and adjoining the land devised to the appellant. But the devises to Jeronimus and Henry contained no words of inheritance. Those devisees, therefore, only took life estates in their respective lots; and the reversion in those lots descended to the heirs at law of the testator. The son of John S. to whom the lower half of the farm was devised, died unmarried and intestate in 1817, leaving his father his heir at law.</p> <p>After the death of John J. Barhydt, Adams commenced an action of debt] upon his bond, in the supreme court, against the four sons, as devisees of the real estate of their father. The process was not served upon the appellant, who resided in another county; and the sheriff returned the writ, as to him, not found. The plaintiff proceeded, however, as if it had been a cáse of joint indebtedness, and took a judgment by default against all the defendants, in November, 1816, for Lthe penalty of the bond, and for $27,15 damages and costs. An execution was issued on that judgment, upon which the sheriff advertised and sold all the right, title and interest of the defendants in the judgment, to the brick house and lot and half a morgan of land devised "to the appellant, and the pasture lot of about eleven acres, which by the will was devised to Henry. Adams became the purchaser of the premises devised to j the appellant,-at the price of $200, and received the sheriff’s deed therefor, on the first of May, 1822. And Henry Barhydt became the purchaser of the eleven acre pasture lot, for the sum of $500, and received the sheriff’s deed therefor on the 7th of June, 1822. By an arrangement between Adams and Henry Barhydt, instead of receiving the money for the bid of the latter upon the execution of the sheriff’s deed to him, Adams agreed to convey to Henry the lot purchased by the former at the sheriff’s sale, and to take the bond and mortgage of Henry on both lots, conditioned for the payment of $1032 ; which was the whole amount of principal and interest due upon the judgment. This agreement was carried into effect, and Henry executed his bond and mortgage upon the two lots on the 7th of June, 1822; conditioned to pay the $1032 in two years from that date, with interest thereon annually.</p> <p>Henry Barhydt died in November, 1824, without having paid any part of the principal or interest upon his bond and mortgage, insolvent and intestate, leaving eight children ; all of whom were made defendants in this suit except his daughter Elizabeth, who had died intestate and without issue before the commencement thereof. In June, 1825, Adams filed a bill in this court against the heirs at law of Henry Barhydt to foreclose his mortgage ; in which suit he made James Barhydt a party defendant. The appellant put in an answer to that bill, claiming one part of the mortgaged premises as belonging to him solely, as the devisee of his father, and the sixth part of the other lot as one of his heirs at law ; and insisting that the judgment, as to his interest in the mortgaged premises, as such devisee and heir, was wholly inoperative and void. Adams thereupon paid the appellant’s costs in the foreclosure suit; but did not discontinue the suit as to any of the defendants therein. In February, 1827, he made an ex parte application to the supreme court and obtained an order vacating the judgment; and in 1828, he commenced a new suit on the bond against the surviving heirs and devisees of John J. Barhydt, and the heirs at law of his deceased son Henry, to obtain satisfaction thereof out of the estate devised or descended to them. The appellant appeared and pleaded in bar of that suit the recovery of the former judgment against bis three brothers upon the bond, in 1816. And the supreme court having set aside the order vacating the judgment, Adams was compelled to abandon the second suit commenced by him upon the bond ; and he was non pressed therein as against the appellant, in November, 1828. Adams having died, the complainant, as his executor, filed his bill in this cause, in December, 1831, against the surviving children of John J. Barhydt, and the surviving heirs of Henry Barhydt, stating these facts and praying relief in a great variety of forms; and concluding with a prayer for general relief. The appellant appeared and answered the bill; and some of the children of Henry Barhydt who were infants, put in an answer by their guardian ad litem. And as to the other defendants the bill was taken as confessed.</p> <p>The answer of James Barhydt, the appellant, admitted that the personal estate of his father was not sufficient to pay his debts, as stated in the bill, and most of the other facts therein charged. But he insisted that the judgment was void as against him and the estate which came to him by devise or descent from his father; he not having been served with process and never having appeared in the suit in which such judgment Was recovered. He also set out, in his answer, the several devises which his father made of the lands of which he died seized, describing the lands and the interest which he claimed therein as devisee or heir.</p> <p>He alleged that he had never been in possession of any of the lands devised or descended to him 5 but that he had filed a bill in this court against the other defendants, to ascertain and settle his rights as heir at law of his father, and to have a partition of such lands as he was entitled to an interest in as a tenant in common with them. And he claimed and insisted that the complainant was not entitled to equitable relief as against him, or the estate so devised or descended to him from his father. The cause was heard upon pleadings and proofs as to the defendants who had appeared and answered, and upon the bill taken as confessed as to the other defendants ,• but the defendant John S. Barhydt appeared by his counsel upon the hearing.</p> <p>The vice chancellor declared and decreed' the sheriff’s sales, and the deeds under the same, and the bond and mortgage given to Adams by Henry Barhydt, to be absolutely void, and that they should be annulled and set aside.</p> <p>And he directed a reference to a master to compute the amount due to the complainant for the principal and intererest on the original bond given to Adams by the appellant’s father; and to ascertain the location, quantity, and value of the real estate of which John J. Barhydt died seized, and the amount of the incumbrances thereon, and to whom the same descended or was devised, and whether the same or any part thereof had been aliened by the heirs or devisees, and the separate value of each portion so descended or devised to the several heirs or devisees. The decree also directed the master to take and state an account of what might be due to other creditors of John J. Barhydt at the time of his death, whether by judgment, mortgage., or otherwise; and to ascertain whether any such debts were still valid and subsisting claims against the estate. And the decree further directed the master to apportion the amount due to the complainant among the heirs at law of John J. Barhydt, in proportion to the value of the real estate descended to such heirs respectively, and to apportion the complainant’s costs and the costs of the guardian ad litem of the infant defendants among such heirs in proportion to the debt which should be recovered against each; that upon the confirmation of the master’s report, the complainant should have execution against the heirs at law respectively for the amount of the debt and costs so recovered against each. The decree also contained a further provision that if the monies arising from the sale of the real estate descended to the heirs respectively, should be insufficient to pay the debt and costs, or in case of a deficiency arising from the alienation of any part of the lands descended and the inability of the complainant to collect the value of the estate so aliened, from the heir by whom such alienation was made, or of a deficiency arising from both causes, the complainant should be at liberty to apply to the court for further relief as to such deficiency against the devisees or the heirs at law or both ■ and reserving to the several defendants the right to apply to the court to settle their respective rights and claims to contribution as between themselves.</p> <p>The defendant James Barhydt not having been arrested in the suit against the devisees of John J. Barhydt on the bond mentioned in the pleadings, the judgment in that suit was absolutely void as against him or his estate, or any estate derived by him from John J. Barhydt, either as his heir or devisee. (5 John. Rep. 41. 15 Id. 141. 9 Cowen, 227, 229. 1 Dunl. P. 126. 1 R. L. 317, § 4. Bac. Abr. title Heir and Ancestor,H. 1 Cowen, 734. 2 Id.569. Id.71.) The judgment was an extinguishment of the bond. (1 Wend. 102.) The execution was not in pursuance of nor warranted by the judgment. And the sale under the judgment of James Barhydt’s property was utterly void. In so far as the judgment was valid against other persons than the defendant James Barhydt, it remains in force. Adams, the obligee, by proceeding on the bond, has elected to discharge the defendant James Barhydt and his property from all claim he or his representatives could have on the bond. And having obtained a judgment against such of the devisees as he chose to have arrested and made liable, his representative cannot now have any remedy in this court. Here was no mistake of fact. This court does not relieve parties from their acts fairly done on a full knowledge of the facts, though under a mistake of law. (Lyon v. Richmond, 2 John. Ch. R. 51. 4 Id. 566. Cooper, 276, 272. 2 Mad. 281. 2 John. Ch. R. 544. 3 Id. 351. 6 Id. 87.) No decree can be made in any way to affect the defendant or his estate, nor should he or his estate be charged with any costs of this suit. If the complainant could now have a remedy in this court, the bill does not contain the allegations and set forth the facts required by the revised statutes. The bill heretofore filed hy William Adams against James Barhydt and the other defendants in the pleadings mentioned, not having been dismissed, this present suit cannot be maintained. (Cooper, 272,276—270,271. 2 Sel. Pr. 461. 3 Black. Com. 290.) The judgment on the bond was docketed in November, 1816. This bill was filed in December, 1830. Any new remedy is completely barred by the lapse of time and the consequent presumption, and by the statute of limitations, as adopted and applied in this court. (Kane v. Bloodgood, 7 John. Ch. R. 70, and the authorities cited in argument and by the chancellor in that case.)</p> <p>The judgment obtained on the bond was a general judgment against all the defendants who were arrested, and was a lien on all their lands, and warranted an execution de bonis propriis against them, and there is nothing in the bill or proofs to show that since such judgment was obtained the plaintiff in the judgment might not by due effort and diligence have obtained satisfaction thereof from the property real or personal of the defendants who w ere arrested on the mense process. The decision of the supreme court mentioned in the answer, (1 Wendell, 102,) must be considered as res adjudicata. The evidence of the belief of Adams concerning the effect of the deeds under the sale on the judgment is wholly insufficient, as it was impossible for the witness to know what Adams believed, and there is no proof of any misrepresentation or misinformation. In so far as the decree of the vice chancellor grants relief different from that prayed for, it cannot be sustained, as the prayer for general relief is in the conjunctive. (Colton and others v. Ross and others, 2 Paige, 396.)</p> <p>The complainant is entitled to the relief granted by the vice chancellor, and his decree can be sustained as against all the defendants upon the ground of the mistake of the testator, William Adams; he supposing that the purchasers at the sheriff’s sale were purchasing a fee simple, and being ignorant of the fact of the title of the defendant, James Barhydt, to the house and lot, and of the fact that the pasture lot on the death of Henry Barhydt passed to all the heirs of John J. Barhydt, in fee. This mistake was a mistake in fact; but if it was a mistake in law, it would furnish a ground of relief; as the rule in equity now is, that relief will be given where the mistake is one purely of law. This mistake, whether of Jaw or fact, is admitted by all the defendants, except James Barhydt and the infant children of Henry Barhydt; and they in their answers do not deny it. (2 McCord’s Ch. R. 463. 2 Bailey, S. C. R. 623. 1 Hill. Ch. (S. C.) 250. 16 Ves. 72. 1 Ves. jr. 126. 3 P. Wms. 320. Moseley, 364. 1 Sim. & Stu. 561. 4 Little. Ken. R. 127. 8 Wheat. 205, 216. 14 John. R. 526.) The ignorance of William Adams of the true state of the title is a sufficient excuse for his not commencing his first suit against all the heirs and devisees of John J. Barhydt. The complainant has a clear remedy in equity by analogy to the statute remedy, provided in cases of eviction in section eleven, (1 R. L. 504,) as chancery in cases of concurrent jurisdiction follows the rules of law, and where it gains jurisdiction for one purpose, it will retain the bill generally. (10 John. R. 587. 7 John. Ch. 90. 3 Id. 129. 4 Id. 636. 1 Sch. & Lef. 429. 10 Ves. 460. 15 Id. 438.) Chancery has jurisdiction of this case upon several grounds. It is a proceeding against heirs and devisees for the sale and distribution of the real estate descended and devised to pay the debts of the ancestor. It may be regarded as a bill to remove a cloud upon the title. It asks for relief upon the ground of mistake. The remedy at law is doubtful and difficult. Unless the complainant has a remedy in chancery, there will be a failure of justice. And the defendant, James Barhydt, is taking an unconscientious advantage of the peculiar circumstances in which the complainant is placed. The bill may be sustained as a bill of foreclosure. No objection can exist to a decree for the sale, in payment of the complainant’s debt, of five-sixths of the pasture lot, and also of five-sixths of all the other lands of John J. Barhydt, deceased, which descended to his heirs at law, (being the shares of all his heirs except James Barhydt,) and also of all the lands of said John J., which were devised by him to his sons Henry, Jeronimus and John S. Barhydt; the said Henry, Jeronimus and John S. Barhydt having been arrested in the suit on the bond, and the bill having been taken as confessed against Alida Yan Dyke and Gilbert Clow and wife, and the said Jeronimus and John S. Barhydt, and the adult heirs of Henry Barhydt.</p> <p>If the complainant’s remedy should only be against John S. and Jeronimus Barhydt, and the heirs of Henry Barhydt, still James Barhydt is a proper party, as they would in equity be entitled to contribution from him; and in order to avoid multiplicity of suits, it would be proper that the equities as between each other should be settled in this suit. (2 Paige, 84, 87, 92. 2 John. Ch. R. 397. 5 Id. 254. 1 Id. 409, 425.) The judgment on the bond, if not disturbed, is no bar to relief. A bill may be filed against heirs and devisees upon a judgment for a debt of the ancestor • and an heir or devisee not arré'sted in the suit at law, may be made a party to the bill in equity, and compelled to contribute to the payment of the complainant’s debt, he not being discharged in equity, although he may be at law. In equity the judgment is not, as to James Barhydt, an extinguishment or merger of the bond. Besides, if the judgment interposed a technical difficulty in the way of justice, chancery has the power of setting it aside. (4 John. Ch. R. 619. 5 Id. 494. 2Atk. 33. 10 Ves. 209, 227. 2 Merv. 36. 2 John. Ch. 508, 511. 2 Id. 397. 5 Id. 254. 18 John. R. 477. 6 Id. 98. 6 Crunch, 253. 4 John. Ch. 334. 6 Id. 21. 1 Id. 425. 5 Paige, 505. 18 John. R. 484.) William Adams, after he discovered his mistake, sought his remedy at law, which was denied. A court of equity is therefore now the proper and only court in which to obtain relief. And the defendant James Barhydt, having put in an answer instead of demurring, cannot object that the complainant has an adequate remedy at law. (2 John. Ch. 339. 2 Pick. 509. 17 John. R. 381. 6 John. Ch. 479, 90. Mitf. 113.) James Barhydt cannot object to a decree setting aside the execution, sheriff’s sale, and all subsequent conveyances, as in his answer he alleges they are all inoperative, illegal and void. The execution was not warranted by the judgment, and was therefore void, and the sheriff’s sales, and sheriff’s deeds, were consequently nullities. (1 Cowen, 738.) The bill contains all the necessary allegations required in a bill filed under the revised statutes by a creditor against heirs and devisees as to deficiency of personal estate; a description of the real estate of which John J. Barhydt died seized, &c. The will of John J. Barhydt mentions all his real estate, a copy of which is set out in the bill. But beyond question, the bill contains every allegation required in a creditor’s bill against heirs and devisees, by the law as it stood before the adoption of the revised statutes ; which law must govern this case. (4 John. Ch. 647. 5 Id. 235.) Even if the bids at the sheriff’s sale are to be deemed a satisfaction of so much of the judgment, there yet remains a balance due thereon of above the sum of four hundred dollars, for which James Barhydt is liable. As to this sum, therefore, he is a proper party, and is liable to pay his proportional share thereof. And he may even be compelled to contribute an amount to the payment of this sum equal to bis full proportion of the whole debt. Only James Barhydt, one of the heirs and devisees, has appealed from the vice chancellor’s decree : the decree cannot, therefore, be disturbed as to the other heirs and devisees ; but may be enforced as against them.</p>

Thís was an appeal from the decree of the vice chancellor of the first circuit.

This was an application by the collector of the ward in the city of New-York in which the office of the assistant register of this court is located, for an order directing such assistant register to pay to the petitioner, for the use of the corporation of the city, a tax of $7048, assessed against the court of chancery in 1838; on account of the funds and securities belonging to suitors in the court, standing in the name of the assistant register, either as such register or…

This was an appeal from the decision of the surrogate of Washington county, refusing to confirm a sale of real estate made by administrators. Samuel Rea the elder, the father of the respondent, died in 1813 ; and by his will he authorized and empowered his executors to sell such part of his real estate as might be necessary to pay his debts, if his personal property should not be sufficient for that purpose.

<p>This was an appeal from a decisión of the vice chan cell oí of the eighth circuity dissolving an injunction. B. Rathbpn, at the time of his failure in 1836, had contracted to purchase certain leasehold premises, to be paid for in the erection of buildings upon the property of the vendor3 and to be conveyed in part payment when such buildings were completed. The buildings had been partially erected by Rathbun at the time of his failure; and he had also made improvements upon the leasehold premises which he had been permitted to take possession of in anticipation of the completion of his contract. All Rathbun’s interest in the leasehold premises, under this executory contract, was conveyed to his assignees by, his general assignment fot the benefit of his creditors, on the 3d of August, 1836. The assignees settled with Wilkinson for the breach óf the contract to erect the buildings and upon such compromise received from him a conveyance of the leasehold premises, which they afterwards sold to the defendant 0. Allen. The complainants, who were the assignees of a judgment, rendered against Rathbun a short time prior to the general assignment of his estate for the benefit of his creditors, claimed that such judgment was á prior equitable lien upon the interest of Rathbun in the leasehold premises, under his contract. And the bill in this cause was filed for the purpose of obtaining a conveyance of the legal estate in the premises ; and to restrain the defendant Allen from selling the same.</p>

This was an application by the complainant to overrule the demurrer of the defendant Marshall, as frivolous, or to set it aside for irregularity, and to take the bill as confess ed, and for a final decree in the cause. The bill was filed to foreclose a mortgage given to the complainant by Marshall. Jones, a subsequent incumbrancer, suffered the bill to be taken as confessed against him.

This was an appeal by Hezekiah Collins, one of the residuary legatees of Luke Hoxie, deceased, from the sentence and decree of the surrogate of the county of Madison, for the final settlement of the accounts of the executors, and for the distribution of the estate of the decedent among his residuary legatees. The executors rendered their account, of receipts and disbursements, and of the estate of the decedent which had come to their hands.

The bill in this cause was filed to, foreclose a; mortgage, executed by Morris and wife to J. Sutphen, and afterwards assigned by Sutphen to the. complainant, with, a covenant on the part of the assignor: to. guaranty its.. collection.

This was an appeal by the committee of J. H. Woodhull an idiot, from a decree of the vice chancellor of the first circuit. The bill was filed by the residuary legatees of H. Woodhull, the mother of the idiot, for an account and settlement of the estate of the decedent, and to obtain a judicial construction of her will as to two of the legacies therein mentioned.

<p>Where the vendor contracted to sell his farm for $5000, and the vendee agreed to pay onc-fiflh of that sum and $350 for back rent on a specified day, "and to give a bond and mortgage at the same time for the residue of the purchase money, when he was to receive a deed of the premises; and simultaneously with the making of the contract the purchaser gave to the vendor a bond and warrant of attorney to confess judgment for the $1350, on which a judgment was immediately entered ; and the vendee afterwards paid $250 but neglected to pay the residue on the specified day, whereupon the vendor sold the premises for something less than the amount which the first purchaser was to have given; Held, that $1000 specified in the contract, and secured by the bond and warrant of attorney, was in the nature of a penalty merely; and that the vendor was not entitled to collect the whole amount secured by the bond and warrant, as stipulated damages.</p> <p>An agreement for stipulated damages, for the breach of a contract, ncccssari- ' ly implies that such damages are to be received in satisfaction! of, and as a full compensation for, the breach of the agreement to which such stipulation applies.</p>

This was an appeal, by the defendants, from a decree of the vice chancellor of the first circuit, declaring all the provisions of the will of Peter Parks deceased in relation to his real estate inoperative and void, and that the whole of such real estate had descended to the heirs at law of the testator ; who were entitled to hold the same as if no will had been made by him.

This was an appeal from a decision of the surrogate of the county of Richmond. Special letters of administration, ad colligendum, had been granted to Vreedenburgh, upon the estate of Cornelius Roberts deceased, until probate of the will of the decedent could be made and letters testamentary granted thereon.

<p>This was an appeal from a decree of the vice chancellor of the fourth circuit, for the foreclosure of a mortgage given to the complainant, by the defendants Samuel O. Butler and wife, in March, 1830, and duly recorded. And the only question was whether the mortgage was a valid lien upon the premises, as against Henry W. Snyder the appellant, under the following circumstances :</p> <p>Samuel O. Butler the mortgagor gave the mortgage to secure to the complainant a loan of $1300; of which $700 was received upon the delivery of the bond and mortgage, on the 30th of March, 1830, and the residue about three weeks afterwards. At the time of the execution of the mortgage and of the receipt of the money loaned thereon, the mortgagor was in possession of the mortgaged premises ; claiming title thereto under a deed from his father, Giles Butler, given in July, 1823, which was duly recorded. And the complainant had no notice that the validity of such title had ever been questioned. In 1824 two suits were commenced in the supreme court, against Giles Butler, for the recovery of debts contracted by him several years before; in which suits judgments were recovered in May of the same year. On these judgments executions were issued, and on the 27th of December, 1828, all the right, title, and interest of Giles Butler in the premises was sold by the sheriff, and purchased in by F. Morss, the judgment creditor, for the sum of $900. On the 7th of April, 1830, Morss obtained a deed from the sheriff, under such sale, and put it upon record. And on the 14th of May thereafter he commenced an action of ejectment against Samuel O. Butler, the mortgagor, and recovered the possession of the premises upon the ground that the conveyance of July, 1823, was fraudulent, as against the plaintiff as a creditor of Giles Butler the grantor.</p> <p>In June, 1832, the complainant filed her bill to foreclose the mortgage, against the mortgagor and his wife, and made the judgment creditors and Morss parties defendants. Morss answered the bill, setting up the fraud in the deed of July, 1823 ; and a replication was filed to his answer. The other defendants suffered the bill to be taken as confessed. After the cause was in readiness for hearing, upon the pleadings and a stipulation between the parties to admit certain facts as a substitute for proof thereof, Morss conveyed the mortgaged premises to Henry W. Snyder,and afterwards died. And Snyder was thereupon made a party to the suit, by a bill in the nature of a bill of revivor and supplement.</p> <p>The complainant is not a purchaser within the meaning and policy of the statute of frauds. The deed, from Giles Butler to Samuel O. Butler, being admitted to be fraudulent and void as against Morss, cannot be the source of title even, to an innocent purchaser, unless the equity of the purchaser is superior, or the conveyance of the fraudulent grantee is prior in point of time, to the sale of the creditor. The sale by the fraudulent grantee must be prior in point of time to a sale for a valuable consideration by the fraudulent grantor, and it must be prior to a sale on execution at the suit of the creditor. (Anderson v. Roberts, 18 John. Rep. 532. Jackson v. Terry, 13 Id. 471.) The sale by the creditor on execution is an unequivocal act, asserting his right to avoid the fraudulent conveyance, and is all he could do. If a third party is the purchaser, the creditor gets his money, and the purchaser may compel a deed. (2 Kent’s Com. 237. Roof v. Stafford, 7 Cowen, 180; S. C. in error, 9 Id. 630.) An unequivocal assertion of right, by the creditor, to avoid the fraudulent deed, is equal to an entry, &c. by a feme covert or an infant, to avoid a conveyance. (Jackson v. Carpenter, 11 John. Rep. 542, 543. 3 Bacon’s Abr. title Infancy, 136. Touch v. Parsons, 3 Burr. 1794. Frost v. Wolverton, 1 Stra. 94.) The sheriff’s sale and certificate to Morss by which his judgment was satisfied pro tanto, although the legal title did not pass, created an equitable lien of equal sanctity and prior in point of time to the lien of the mortgage. (Laws of 1820, sess. 43, ch. 184. 2 R. S. 370. 20 John. Rep. 3. 2 Wendell, 507. 1 Cowen, 452—457. 7 Id. 554. 1 Id. 510.) The judgment against Giles Butler, the public advertisement of sale of the premises on the execution, the sale itself, and sheriff’s certificate on file, are acts amounting in judgment of law to constructive notice of the invalidity of the deed to Samuel O. Butler, and the assertion of right by the creditor. But the complainant cannot be deemed an innocent purchaser, for the six hundred dollars not loaned till after Morss’ deed was recorded, and the legal title vested in him. Although a mortgage may be good between the parties to secure subsequent advances, such advances after the registry, must be subservient to intermediate claims of other parties. (Hendricks v. Robinson, 2 John. Ch. Rep. 309. James v. Johnson, 6 Id. 429. Brinckerhoof v. Marvin, 5 Id. 327. Shirras et al. v. Caig, &c. 7 Cranch, 34.) The recording of Morss’ title 7th April, 1830, was constructive notice to the complainant on the 21st of April, when the last six hundred dollars was loaned, of his assertion of title, and of the fraud of the Butlers. The loss, where parties are equally innocent, should fall on the one who enabled the fraudulent party to reap the fruits of his iniquity. (Root v. French, 13 Wendell, 570.)</p> <p>It is not pretended that the respondent had notice in fact of the advertisement of the sheriff, or of the filing of his certificate, before the execution of the mortgage of Samuel O. Butler to her. Neither the judgment against Giles Butler, nor the advertisement of the sheriff, nor the filing of the advertisement, nor of the certificate, was notice in law to the respondent ; whose interest was derived from Samuel O. Butler. Whatever notice the recording of the sheriff’s deed to Morss for the property mortgaged to the respondent, might be to subsequent mortgagees or purchasers, it could have no effect upon the rights or interests of the respondent, who was a previous mortgagee. The deed of the sheriff could not relate back to the prejudice of the rights or interests of the respondent, a third person, who was not a party nor privy thereto. (Laws of 1820, vol. 5, b. 167. Tuttle v. Jackson, 6 Wend. 215. Bissell v. Payn, 20 John. Rep. 3. Evertson v. Sawyer, 2 Wend. 509.) A mortgagee is a purchaser. (James v. Mowry, 2 Cowen, 299. James v. Johnson, 6 John. Ch. R. 429. 1 R. L. 1813, p. 77, § 6. 2 R. S. 137, § 5, 6. Chapman v. Emery, Cowp. Rep. 278. White v. Hussey, Prec. in Ch. 13. Cormick v. Trapland, 6 Dow’s Rep. 60. Noy’s Rep. 105.) The respondent then is a purchaser in good faith, for valuable consideration, without notice either in fact or in law, of the fraud, whether constructive or actual, charged upon her immediate grantor, and cannot be prejudiced thereby, either as to the first or second sum advanced upon the mortgage of Samuel O. Butler to her. (1 R. S. 762, § 37. 1 R. L. 1813, p. 77, § 6. 2 R. S. 137, $ 5,7. Jackson v. Terry, 13 John. Rep. 471. Anderson v. Boyd, 18 Id. 515. Downing v. Palmateer, 1 Mon. Rep. 69. Shirras v. Caig & Mitchell, 7 Cranch, 34.)</p>

<p>This was an appeal from a decree of the late vice chancellor of the third circuit. The hill was tiled to foreclose a mortgage given to the complainant, hy the defendant J. Shufelt, in April, 1835 ; and B. I. Mynderse and N. Van Vranken, the administrators of A. Mynderse, were also made defendants as the holders and owners of a judgment, against the mortgagor, which vías a lien upon the mortgaged premises. The bill, after stating the execution of the bond and mortgage, set forth the recovery of a judgment in the supreme court, on the I5th of September, 1834, in favor of B. I. Mynderse as special administrator of his brother A. Mynderse ; letters ad colligendum on the estate of the latter having been issued, by the surrogate, immediately after his death and previous to the recovery of such judgment. The bill alleged that the judgment was entered upon a bond and warrant given to such special administrator, for a pretended debt, of $743,50, due from J. Shufelt to the intestate. The complainant further stated that the debt for which the bond and warrant were given arose upon the sale of lottery tickets to J. Shufelt, by the intestate in his lifetime ; and that the greater part of such debt was for lottery tickets not authorized by the laws of this state; that the lottery tickets were sold to J. S. in the years 1832, 1833, and 1834; that only about $190 of the consideration of the notes for which the judgment was given, was for tickets in lotteries authorized by the laws of this state ; and that the residue thereof was for tickets in lotteries of other states, the sale of which was forbidden by the statute of this state. The bill further stated that the mortgagor was insolvent, and that the defendant B. I. Mynderse .had a prior mortgage upon the premises, which were not worth more than sufficient to pay such prior mortgage and the complainant’s debt. The bill also stated an accounting between the mortgagor and the administrators, in relation to other matters of account between him and the intestate, in which a balance of $47 was found due to the mortgagor; which the complainant insisted should be applied towards the satisfaction of so much of the judgment as was founded upon a legal consideration. The complainant further stated that he had tendered and offered to pay the residue of such legal consideration, and costs, &c. He therefore prayed for a decree of foreclosure and sale, and that Mynderse and Van Vranken might be decreed to release, cancel, and discharge the judgment, or to release and discharge the mortgaged premises from the lien of the judgment; and that they might be restrained by injunction from selling the premises by execution upon their judgment j or that the lien of the judgment might be postponed to that of the complainant’s mortgage ; and for general relief.</p> <p>The bill also contained the usual allegation, that no proceedings had been had at law for the recovery of the debt secured by the complainant’s bond and mortgage, or any part thereof. But it appeared in the bill itself that the bond and mortgage were given in part asa collateral security for a debt of $2730, for which a judgment had been recovered by the complainant, against the mortgagor, in the supreme court. The defendants Mynderse and Van Vranken therefore insisted in their answer that the complainant was not authorized to proceed to foreclose his mortgage, in this court, without showing that he had exhausted his remedy at law for the recovery of that part of the mortgage debt, by the return of an execution on the judgment unsatisfied, as directed by the statute. They also stated in their answer that when B. I. Mynderse was appointed special administrator, to collect the debts and preserve the property belonging to his deceased brother’s estate, there came to his possession four promissory notes of different dates, purporting to have been given to the decedent by John Shufelt, the amount of which notes, with the interest thereon,, was $743,50; that the special administrator, in order to secure the payment of the said notes, immediately called upon the drawer and presented the said notes and requested him to secure the amount; that Shufelt admitted his indebtedness and consented to give a judgment for the debt and to pay the same as soon as he received the avails of his farm which he had contracted to sell; and that a bond and warrant were thereupon given for the amount, upon which a judgment was entered in the supreme court. These defendants also denied all knowledge of the consideration of the several notes for which such judgment was given. They likewise denied any information on the subject, except from the subsequent allegations and pretences of the defendant J. Shufelt. And they therefore stated it as their belief, and insisted, that the notes were given upon a good and valid consideration ; and that the judgment was a valid and available lien, in favor of the estate of the decedent, not only as against the defendant therein but also as against the complainant as a subsequent incumbrancer.</p> <p>J. Shufelt the mortgagor suffered the bill to be taken as confessed against him. And the complainant having filed a replication to the answer of the- other two defendants, examined him as a witness to prove the allegations in the bill -as to the consideration of the notes for which their judgment was given ; although they objected to the witness as incompetent. Upon his testimony the vice chancellor decided and decreed that the judgment of the administrators was not a preferable lien upon the mortgaged premises, except as to the sum of $185 ; and that the residue of the said judgment should be postponed until the complainant’s mortgage was satisfied ; which mortgage, except as to the $185, was declared and decreed to be a prior lien upon the mortgaged premises, in the 'same manner as . if it had been duly registered before the docketing of such judgment. He also directed a reference to compute the amount due upon the complainant’s mortgage, and reserved all further questions and directions until the coming in and confirmation of the master’s report. From this decree Mynderse and Van Yranken, the administrators, appealed.</p> <p>John Shufelt was an incompetent witness for the complainant, being interested in the event of the suit. (5 Paige, 632. Hoffm. Ch. Pr. 485. 1 Cowp. 198.) Barent I. Mynderse was a competent witness in behalf of the estate of Aaron Mynderse deceased, being only a formal party as administrator and having no personal interest in the suit. (5 Paige, 638.)</p> <p>The complainant having examined John Shufelt as a witness can have no decree against him as to any matters to which he was examined, and therefore not against the other defendants ; as the foundation of the relief sought against them is connected with the relief sought against him. The complainant being a third person, and a subsequent judgment creditor and mortgagee, cannot enquire into the consideration of the judgment given by John Shufelt to Barent I. Mynderse. (Cowp. 793. 2 W. Black. 1073. 12 John. Rep. 10, 11. 10 Id. 186. 6 John. Ch. Rep. 235: 5 Id. 569. 20 John. Rep. 668. 20 Id. 296. 2 John. Ch. Rep. 144. 9 John. Rep. 80. 1 R. S. 669.) John Shufelt himself, having voluntarily and without fraud or imposition confessed the judgment, can have no relief against it. He might have had against the notes, if he could have proved the illegality of their consideration. (5 John. Ch. Rep. 565, 566, 145.) This illegality he could not (if Aaron Mynderse had been living) have compelled Mynderse to discover, as the discovery would have subjected him to a penalty or forfeiture. (1 R. S. 669, § 26, 29 to 32. 3 Paige, 528. 2 Bridg. Dig. tit. Gaming. 4 Idem, title Disc. § 36; 38, 39, 41, 62. 2 Idem, title Forfeiture, § 3. 11 Vesey, 296, 373.)' John Shufelt would have had no remedy by a summary application to the equitable powers of the supreme court. He would have been compelled to resort to chancery for relief. And when there he could not have compelled Aaron Mynderse to discover the consideration. (11 Wend. 335. 3 Paige, 532. 5 John. Ch. Rep. 137.) What John Shufelt could not effect, cannot thus indirectly be effected, by his creditor making him the witness to prove the consideration. John Shufelt, if he could have proved the consideration, could have had no remedy against Aaron Mynderse, as they were in pari delicto—the law leaving them as it found them, not aiding either. (12 John. Rep. 11. Cowp. 2007. 11 John. Rep.' 23.) The complainant has no equity as against the judgment ; as his debt has been contracted, or the greater part of it, since his knowledge of the judgment. (5 John. Ch. Rep. 565.) The judgment was not given to defraud creditors, and therefore it cannot be set aside at the instance of a creditor. A portion of the mortgage debt is secured by a judgment, and no execution has been issued and returned thereon. The complainant is therefore precluded from the relief he seeks. (2 R. S. 118,119, § 161, 162. 4 Paige, 549.)</p> <p>The judgment to Barent I. Mynderse, collector, &c. of the estate of A.,Mynderse, deceased, ought to be postponed to the lien of the complainant’s mortgage, and the mortgaged premises ought to be relieved from the lien created thereby ; because, with the exception of $190, it was given for a consideration prohibited by statute (lottery tickets,) to which a penalty was affixed and was therefore void. (3 Paige, 320. 1 R. S. 665, 6, § 26, 29, &c. 14 John. Rep. 273, 290. Fonb. Eq. 191, note. 1 Com. on Con. 28. 2 Will. 351. Fonb. Eq. 193, note. Doug. 614, 716.) The defendant, John Shufelt, - not being interested in the matter for -which he was called, and to which he was examined, was a competent witness. (2 Vesey & Beam. 401. Hoffman's Master, 18.) The defendant, Barent I. Mynderse, being an administrator, and being interested to swell the assets, is not a competent witness, and his deposition ought, therefore, to be suppressed. (2 Eq. Dig. 1001. 5 Mad. 353. 1 Ball. & Beat. 96.) The $170 of prize money ought to be applied to the payment of the $190, which was the only portion of the consideration of the judgment that was legal. The residue of the consideration of the judgment was for lottery tickets, the sale of which was not only not authorized, but was expressly prohibited by the laws of the state, and declared a nuisance. (9 Cowen, 775—Note, as to application of general payments.) Should the prize money ($170,) be applied to that portion of the judgment which was founded upon a good and valid consideration, then there was only about the sum of $20 due upon the judgment when it was entered; and the complainant tendered much more than was actually due, as he tendered $185. The objection that a judgment has been taken for a part of the mortgage debt and that no execution has been issued and returned thereon, is not well taken. The mortgagor alone can take this objection. The mortgage wras given subsequent to the judgment, and therefore the statute does not apply. The complainant’s hill is filed to obtain relief against an incumbrance improperly or fraudulently created ; and in such a case it is not necessary that an execution should be sued out previous to the filing of the bill. (2 R. S. 191. 4 Paige, 549. 3 Id. 320.)</p>

This was an appeal from a decision of the vice chancellor of the fifth circuit, overruling a plea to the jurisdiction of the court. The suit was an ordinary creditor’s bill, and the defendant was described in the bill as a resident of the fifth judicial circuit.

This case came before the chancellor upon an appeal by the defendant from a decree of the vice chancellor of the first circuit. The proceedings and proof showed it to be one of the innumerable cases of frauds upon creditors, and many innocent and unsuspecting stockholders of incorporated companies, in the city of New-York, committed by those who obtained the control of a great number of those institutions in 1825 and 1828.

<p>Where a testator devised the rents and profits of his real estate, andj come of his personal property, to bis widow for life; apd after tbs of his will acquired the right to the profits of a toll bridge fori years; Held, that the widow was not entitled to the whole < of the toll bridge during her life, but only to the interest c value at the death of the testator.</p> <p>A specific bequest of successive estates in terms for years, an j real, gives to the respective owners the whole income of the| the continuance of their respective estates.</p> <p>But where an estate for life, or an interest short of an absolute ownership ia given in the general residue of the testator’s personal property, terms for years and other perishable funds or property which may be consumed in the using, must he converted and invested in such a way as to produce a permanent capital; the interest or income of which capital alone belongs to the owner of the particular estate in such general residue.</p> <p>Where an executor, instead of calling in the money upon good and collectable bonds and mortgages or other securities belonging to the estate of the testator, for the benefit of the legatees, transfers such securities to a third person for the use of such legatees, with their assent, he is entitled to the same commissions as if ho had actually received and paid over the money, or invested it as directed by the will. But where an executor dies before he has converted the personal property of the testator into money, or otherwise disposed of it in the execution of his trust, he is not entitled to commissions upon the value such property.</p>

<p>This was an appeal from a decision of the vice chancellor of the eighth circuit, overruling a demurrer. The bill was filed to recover back the usurious premiums which the complainant had paid to the defendant upon a loan of $200; which sum had been loaned at the rate of three and a half per cent per month, in addition to the legal interest. The bill alleged that the loan was made in October, 1834, when the complainant and his sureties gave to the defendant twelve promissory notes, amounting together to the sum of $256, payable in eight months, with interest; and that the notes were renewed from time to time, at the end of every six months, at the same usurious rate ; a part of the amount being paid at each renewal, until January, 1837. At that time twelve new notes were given, by the complainant and his sureties, amounting in the aggregate, to $266,20, payable in six months with interest. When these last notes fell due the defendant caused twelve suits to be commenced thereon before a justice, and recovered judgment for the whole amount of each note, with interest and costs, against the complainant and his sureties ; which judgments the complainant afterwards paid. The bill also stated that the original contract for the usurious loan, and all the subsequent agreements for the renewal of the notes on the same terms, were made between the complainant and the defendant when no other person was present; so that it was impossible to prove the usury as a defence to the suits before the justice; and that during the pendency of those suits the present defendant was not in the county where the suits were brought, or in either of the adjoining counties.</p>

This was an appeal from a decree of the assistant vice-chancellor of the first circuit. The bill was filed to foreclose a mortgage given by the defendants, to Eleanor Cal-lean, for a part of the purchase money of the mortgaged premises ; which mortgage was subsequently assigned by her to W. P. Rathbone, and by him to the complainants.

This was an application for an injunction to restrain the defendants from extending their rail road through Broome street; or rather from using the road laid down in the street, as the construction of it had been completed before the motion was made.

<p>The principle that lands consisting of different parcels, subject to a general incumbrance, arc in equity to he charged in the inverse order of the alienalion of the several parcels, applies to cases where the owner of the lands has given thereon several mortgages of different dates.</p> <p>A general Hen will be thrown upon such particular parcel of land as will give a mortgagee the benefit of the priority of his mortgageupon the lands of the mortgagor, or upon a part thereof, over subsequent incumbrancers, either upon the whole premises or upon a part thereof.</p>

This was an appeal by the defendant from an order of the vice chancellor of the first circuit, appointing a receiver of the property and effects of a partnership which had been dissolved by the death of one of the copartners, and granting an injunction to restrain the survivor, or his agents, from interfering with the property and effects of the firm.

This was an appeal, by the defendant, from a decision of the late vice chancellor of the third circuit, overruling a demurrer. The object of the bill was to obtain a satisfaction of the taxes assessed against the defendant, out of his equitable estate and choses in action ; the warrant for the collection of the tax having been returned unsatisfied because the collector could not find any property of the defendant out of which the tax could be levied.

This case came before the court upon the separate demurrers of the Beekman Iron Company, and of the defendants Conklin and Hewett, to the complainant’s bill. The facts as stated in the bill were substantially as follows ; The Beekman Iron Company was an incorporated manufacturing association, and Conklin and Hewett were their agents to sell the productions of the furnace of the company.

<p>The surety in a usurious contract has a right to set up the defence of usury to a suit brought against him and the principal debtor on such contract, and to file a bill i:\ chancery, if necessary, to establish the defence ; although the principal debtor refuses to join as a complainant in the bill. But he has no right to make the principal debtor a complainant in the suit without his consent.</p> <p>Where two persons have a common interest in obtaining relief against a joint contract, and one of them refuses to join with the other in a bill to obtain such relief, the proper course is to make him a defendant in the suit; stating such refusal as an excuse for not making him a co-complainant. And if the bill does not state such excuse the other defendants may demur.</p> <p>A bill for relief against a usurious contract can only be filed whore it is necessary to aid a defence at law, or to remove a usurious incumbrance which is a cloud upon the complainant’s title to real property, or which may be used at law to his injury, or in such a manner that he could not interpose a legal defence if he was sued thereon in a court of law.</p> <p>Where a usurious negotiable note was made before the act of 1837 repealing the provision of the revised statutes making such notes valid in the hands of bona fide holders, iteannot be transferred subsequent to the passing of that act so as to prevent the maker of the note from setting up the defence of usury.</p>

This case came before the court upon an exception to a master’s report in relation to the rights of the several defendants in the surplus monies upon a sale of mortgaged premises. H. Bradford, who died before the decree of foreclosure, was the original owner of the premises, and mortgaged them to secure the payment of a debt due from himself • and. his wife Jane Bradford joined with him in the mortgages.

This was an appeal from a decision of the surrogate of the county of Cayuga, appointing the respondent the general guardian of the person and estate of Noah W. Dennis, an infant between seven and eight years of age.

This was an appeal from a decree of the vice chancellor of the eighth circuit. The hill was filed to foreclose a mortgage, and the defendant set up the defence of usury. The facts of the case, as they appeared from the pleadings and proofs, were substantially as follows ; In the spring of 1836, the complainant and his brother, being the owners of a farm in the town of Penfield, contracted to sell the same to the defendant, for $2400.

This was an appeal from a decision of the vice chancellor of the first circuit, denying an application for an injunction.

This was an application by the appellant for a retaxation of the respondent’s costs. It was the case of an appeal from the sentence or decision of a surrogate. Several persons were interested in sustaining the decision and order appealed from; but the appeal was only made effectual against Rea, by making him a party to the petition of appeal.

This was an appeal from an order of the vice chancellor of the first circuit, setting aside a part of the exceptions to the defendant’s answer. The defendant demurred to a part of the allegations in the complainant’s bill and answered some other parts thereof, and the demurrer was overruled by the vice chancellor.

This was an application to discharge E. Bissell, one of the defendants, from his arrest upon a ne exeat, on the ground that no subpoena was served at the time he was arrested upon the writ of ne exeat.

<p>This case came before the chancellor upon appeal, by the defendants, from a decretal order of the vice chancellor of the eighth circuit, disallowing their several demurrers to the complainants’ bill. The facts of the casc are correctly stated in the report of the decision before the vice chancellor, (1 Clark’s Ch. Rep. 518 ;) except that it is there said the bill was filed for discovery and relief, when in fact it was filed' for relief merely ; an answer on oath being expressly waived by the bill.</p>

The bill in this case was filed to foreclose a mortgage given by the defendant Ensign ; and M. B. Sherwood was made a party defendant as having an interest in the mortgaged premises, as a subsequent purchaser or otherwise. The bill was taken as confessed against Ensign for not appearing, and against Sherwood for not answering after he had appeared by a solicitor.

This was an application by the defendant Beach to dismiss the complainant’s bill for want of prosecution. The facts are sufficiently stated in the opinion of the court.

The bill in this cause was filed for a separation, on account of the alleged cruel usage of the complainant by her husband. Upon filing the bill/an exparte injunction had been allowed, by an injunction master, to restrain the defendant from annoying, following, harming, taking possession of, or offering any personal violence to, his wife or his children.- On the coming in of the answer, an application was made to dissolve the injunction.

This was an application to dissolve an injunction, upon bill and answer. On the first of April, 1837, the complainants, E. Van Epps and wife, in right of the wife, were the owners of a farm in Greenbush ; which was subject to the lien of a mortgage of $5000, executed by them to the defendant, their son, and by him assigned to the New-York Life Insurance and Trust Company.

This was an appeal from a decision of the vice chancellor of the seventh circuit, denying an application for an attachment against the defendant, for the breach of an injunction issued upon a creditor’s bill. The defendant, who was one of the superintendents of the poor of the county of Onondaga, had various claims against the towns and county for services, which could not be audited and allowed until the annual meeting of the supervisors.

This was an application by the defendant to stay all proceedings, in a suit upon a creditor’s bill, until the costs of a former suit, commenced before a vice chancellor for the same cause, were paid.

This was an application on the part of the receivers of the Sea Insurance Company, who were proceeding in this suit as authorized by the statute in the name of the corporation, for leave to file a replication to the answer of D. M. Day, the original defendant. The bill was filed by the Sea Insurance Company to foreclose a mortgage given by Day and wife to the corporation.

This was an appeal from a decision of the vice chancel-l°i' of the eighth circuit. The bill was filed against the appellants, Keeler and Durant, who resided in Albany, as judgment debtors, to obtain satisfaction of the complainants’ judgment out of their property, which could not be reached by execution.

This was an appeal by the defendants from a decision of the vice chancellor of the eighth circuit, denying their application to set aside an order taking the bill as confessed against them. The complainant’s solicitor lived in Rochester, and the solicitor for the defendants in the city of New-York.

This was a petition by the grandfather of the infant defendants, on their behalf, to set aside an appointment of a guardian ad litem, made by a master. The bill was filed by the father and the mother of the infants, against them and the trustees under a conveyance for their benefit, to set aside such conveyance. .

This was an appeal by the Seneca County Bank from a decision of the vice chancellor of the first circuit, denying the appellants’ application for a resale of premises which had been sold under a decree of foreclosure. The mortgaged premises originally belonged to the defendant Oakley, who mortgaged the same to the complainants to secure a loan of $18,000 with interest. The foreclosure suit was commenced in July, 1839, and a decree was obtained therein in April, 1841.

<p>This was an amicable suit for the specific performance of a contract for the purchase of lands. And the bill was filed for the sole purpose of obtaining a decision of the court upon the question whether the complainant, under the will of her father and by the death of her only child without issue, was the owner in fee simple of certain premises in New-York ; being the undivided moiety of five lots on Catharine-street, and of a house and lot on Cherry-street. The facts upon which the title of the complainant to the premises in question depended, as stated in the bill and admitted by the demurrer, were as follows ;</p> <p>In 1798, Elijah Pell died seized of the premises in question, and of other property in New-York, in fee; leaving the complainant, then about thirteen years of age, his only child and heir. By his will, which was executed in due form to pass his real and personal estate, he bequeathed to the complainant his furniture, bedding, and plate, and a pecuniary legacy of ¿63000 to be paid to her at eighteen or on the day of her marriage; and devised to her a house and lot and some other property in fee. He also devised to her the use and rents of certain other real estate, including the premises in question, for and during her life, and no longer. And after her death he gave and devised such real estate unto her child or children, in case she should have any, and if more than one, to be equally divided between them share and share alike, to them, their heirs and assigns for ever in fee simple. The residue of his estate and his outstanding debts the executors were, by the will, directed to collect and convert into cash ; and to invest the same in the stocks of certain specified banks, and to pay to the complainant the income thereof for and during her life, and no longer. And after her death he gave such stocks to her child, or children if more than one, to be equally divided between them share and share alike, and to their heirs and assigns forever. By a subsequent clause of the will the testator declared his will to be that in case his daughter, the complainant, should die and leave no lawful issue, his executors, or the survivor or survivors of them, should sell his real estate, and the bank stocks in which the personal estate should have been invested, and distribute the proceeds among certain collateral relatives of the testator specified in his will. The will also contained a residuary clause whereby the testator gave all the remainder of his estate, not before disposed of, to the children of his five sisters to be equally divided between them, with the exception of one child who was designated in the will.</p> <p>The complainant, about eight years after the death of her father, married R. Macomb, by whom she had only one child, Julia Macomb, who was born in 1809 and died in 1831, intestate and without issue ; and the husband of the complainant also died before his daughter previous to the . filing of the bill in this cause. The complainant therefore had no issue living at that time. And the counsel for the defendant, upon the hearing of the cause upon bill and demurrer, agreed to admit that the complainant was then about fifty-five years of age, and that it was physically impossible for her to have any other children after that time ; and that the bill should be amended accordingly, so as to contain an allegation to that effect.</p>

This was an appeal by the complainants from an order of the vice chancellor of the first circuit, allowing the defendant A. Birkbeck, to file a supplemental answer. The bill was filed by a judgment creditor of E. Bloomer, after the return of an execution unsatisfied, to reach property of the latter alleged to have been fraudulently assigned to the defendant Moon ; and Birkbeck and Hegeman were made defendants as subsequent assignees of Moon.

This was an ex parte application, on the part of the appellants, to revive an appeal from a decision of the circuit judge of the first circuit affirming a sentence or decree of the surrogate of the city and county of New-York; which decree admitted to record, as a valid will of real estate, an instrument propounded by the respondent Rutherford, as the last will and testament of William Jauncey deceased.

The bill in this cause was filed against the infant child and heir of Coenrad Fowler, deceased, for the specific performance of a contract for the sale and conveyance of lands in the state of Michigan. In May, 1836, the decedent entered into a written agreement to sell and convey to the complainant, the eighth of a section of land in the state of Michigan, for the consideration or price of $250 ; of which sum $200 was paid down.

This was an appeal from the sentence or decree of the surrogate of the county of Saratoga, upon the settlement of the account of the respondent as administratrix of the estate of Richard Searing, her deceased husband. And the only matter in dispute between the parties related to certain debts, for which she held securities in her own name at the death of the decedent; which debts the appellants, as the decedent’s next of kin, claimed as belonging to his estate.

This was an appeal 'by the complainant from an order of the vice chancellor of the first circuit postponing the sale of mortgaged premises, under a decree of foreclosure, from the 24th of June, 1841, to the first of January, 1842. The bill was filed to foreclose a mortgage for $26,000, given by the defendant Hall to E. Sandford, payable in July, 1838, and assigned by the latter to the complainant.

This was an application to dismiss the complainant’s bill for want of prosecution. The defendant Philips, in whose behalf the application was made, had pleaded the pendency of a former suit, and had obtained the master’s report thereon ; but neither party had set down the cause for hearing upon the plea and master’s report.

This was an application, on the part of the complainants in a foreclosure suit in this court, for leave to proceed in an action which had previously been commenced in the supreme court against some of the defendants in this suit, and against Albert Westfall who was not made a party to the bill filed in this court.

This was an appeal from an order of the vice chancellor of the seventh circuit, denying an application to dissolve an injunction. The bill, as to the defendants Haight and Banning, was an ordinary creditor’s suit to obtain satisfaction of a judgment recovered against them for a copartnership debt, which the complainant had not been able to collect by execution at law.

This case came before the chancellor upon an appeal, by the defendant Skinner, from an order of the vice chancellor of the third circuit denying an application to dissolve an injunction, upon the matter of the bill only ; and also upon a cross appeal by the complainants from so much of the order as denied their application for leave to amend the bill.

This case came before the court upon the several applications of the defendants to dissolve the injunction issued in this cause, so far as the same restrained the exercise of the rights of each in respect to the property in controversy.

This was an appeal from a decree of the assistant vice chancellor of the first circuit, dismissing the complainant’s supplemental bill, with costs, as against the defendants Nash & Keyser ; and directing the receiver to pay over to them the rents and profits of the premises in controversy between the complainant and these defendants. The facts upon which the decree of the assistant vice chancellor was based are stated in the report of the case before him. (1 Hoff.

This was an application by one of the defendants, to dismiss an appeal, from a final decree of the vice chancellor of the first circuit. The motion was founded upon an affidavit that the .appellant did not appear to argue the cause before the vice chancellor, at the time of making the decree appealed from.

This was an application for an injunction, to restrain the New-York and Erie Rail Road Company, and its officers and agents, from constructing the railway of that company between the Delaware section of the complainants’ canal and the river Delaware, or on the berme side of that section between the canal and the crown of the cliffs above the same.

This was an application to take the answer of the defendant Yan Epps off the files, for irregularity, on account of an alleged imperfection in the jurat.

This was an appeal from a decision and decree of the vice chancellor of the fourth circuit.

This was an application on the part of the complainants for leave to read, upon the trial of an issue directed in this cause, certain depositions taken in the state of Indiana, under a commission issued out of this court. The commission was granted by a special order of the court; but through inadvertence the order contained no direction authorizing the commission to be returned by mail.

This was an application to dissolve an injunction, which restrained the comptroller from giving a preference in payment to the holders of protested notes of an insolvent banking association, over the holders of notes of the association which had not been so protested.

This was an application for a receiver upon a creditor’s bill. And the defendants’ counsel objected that the coqrt ought not to take jurisdiction of the caseras the amount pf the debt for which the judgment in the suit at law was rendered was less than $100; although the debt and costs in that suit exceeded that sum.

This was an appeal by the complainant from a decree of the vice chancellor of the first circuit dismissing her bill. 'The complainant was the wife of the defendant W. W. Shirley, and the bill was filed to protect the furniture in (q,e house of her husband from a mortgage thereon, given by him to the defendant Lambert, under the following circumstances : A part of the furniture was claimed as having-been bequeathed to the complainant by her deceased aunt; and as to the…

This was an application by the special guardian of an infant to compel R. L. & A. Hill, the supposed purchasers of the real estate of the infant, to complete their purchase.

The defendant having neglected to attend before a master, on a reference, under a summons served upon his solicitor, showed for cause against the usual order, to attend before the master in four days and to pay the costs of the application, that he was absent from home when the summons was served on his solicitor, and did not hear thereof until after the order to show cause why he should not be punished for his contempt was served on his solicitor.

The bill in this case was filed to foreclose a mortgage, and after a decree had been obtained, but before the sale of the mortgaged premises, White, one of the defendants against whom the bill had been taken as confessed as an absentee, applied to be let in to make a defence and to stay the proceedings upon the decree in the meantime; and in his petition he swore to a good defence to the suit and stated what that defence was.

This was an application, by the defendants, for an issue to try the question of usury set' up in the answer. The complainant resisted the application on the ground that the answer, setting up the defence of usury, was put in without oath, and that the allegation of usury therein was untrue in point of fact.

, This was an application by the complainant in a foreclosure suit for leave to proceed to judgment in actions at law commenced for the recovery of the mortgage debt. Previous to the filing of his bill the complainant had commenced suits at law against some of the defendants, who had become personally responsible for the payment of the mortgage debt.

This was an appeal from a decision of the vice chancellor of the first circuit, denying an application to take the complainant’s bill off the files of the court, upon the ground that it was not properly verified.

This was an appeal by D. Perrin & J. Boardman, the late sheriffs of the counties of Monroe and Orleans, from a decretal order of the vice chancellor of the eighth circuit, adjudging them to-be in contempt, and ordering them to pay the costs of the proceedings to be taxed, and to deliver up to the receiver in these causes the property levied upon by them respectively ; and that they be committed until the order should be complied with.

Applications were made in behalf of each of the defendants in this cause, they having appealed by separate solicitors, for orders to compel the solicitor of the complainants to pay the costs of two interlocutory applications, theretofore made by the complainants, for the retaxation of the costs of the defendants respectively on the appeal to the chancellor.

<p>This was an appeal from an order of the vice chancellor of the first circuit refusing a rehearing, upon the application of the complainant. The cause was brought to hearing upon bill and answer. Upon the hearing the defendant’s counsel objected that an assignment of the mortgage, under which the complainant claimed a decree in his favor, was not admitted by the answer. The complainant’s counsel thereupon asked that the hearing of the cause might be suspended a few minutes, until he could step into the adjoining room and prove the assignment before a commissioner, and thus to enable him to read it on the hearing, under the provisions of the 17th rule of the court of chancery ; the counsel himself being the subscribing witness to such assignment. This permission was refused by the court; and the complainant’s bill was dismissed, with costs, on the ground that there was no proof or admission of the assignment. Upon these facts the complainant asked for a rehearing, which was denied.</p>

This case came before the court upon a demurrer to an ordinary creditor’s bill, filed against the judgment debtors, as to both of whom executions had been returned unsatisfied.

These cases came before the chancellor upon the demurrers of the defendants, the corporation of New-York, to the bills of the complainants respectively.

This case came before the court upon an appeal, by the complainants, from a decision of the taxing master, upon the taxation of costs in a mortgage case, on a bill taken as confessed. The complainants’ solicitor applied to the county clerk to search for deeds and mortgages, executed by the mortgagor, subsequent to the complainants’ mortgage, so far as they affected the mortgaged premises.

This case came before the court upon a general demurrer to a bill of revivor. The bill was filed by the respective executors of James Gaze and of John Richaud, deceased, to revive a suit originally commenced against Gaze and Richaud, by Dias the present defendant.

This was an appeal by the defendant J. L. Graham from an order of the vice chancellor of the eighth circuit amending the decree in this cause, after enrolment, so as to make it a personal decree against the appellant. The bill was filed to foreclose a mortgage given by the defendant Jones, solely, but the mortgage debt wat: -'tired by the joint and several bond of both the d ' to.

This case came before the chancellor upon an appeal by the complainant from so much of the decree of the vice chancellor of the fourth circuit as disallowed the exceptions of such complainant to the master’s report, and so much of the decree as disallowed his claim for costs against Esleeck, the original defendant personally. The executors of Esleeck also appealed from a part of the decree overruling exceptions taken by Esleeck to the master’s report.

This was an application by Pell and wife, two of the defendants in this cause and two of the complainants in a cross bill, to stay all the proceedings in this suit until the present complainant therein, and the other defendants in the cross bill had put in and perfected their answers to such cross bill; and to extend the time to produce proofs until forty days after such answers to the cross bill had been perfected.

This was an application by a creditor of W. Ganse for a commission to inquire as to his lunacy.

This was an appeal from a decree of the vice chancellor of the seventh circuit, dismissing the complainant’s bill •with costs. The bill was filed for the specific performance of a contract for the conveyance of a lot and premises in the village of Penn Yan, known as the American Hotel property.

This was an appeal from a decision of the vice chancellor of the first circuit refusing to dissolve an injunction, upon the matter of the bill only. The complainant in 1836 leased to the defendant, by separate leases, five lots in the city of New-York, for the term of twenty years, at a rent of $200 each for three of the lots, and of $100 each for the other two lots, payable semi-annually on the first of May and November.

This was a demurrer by the defendant R. L. Allen to the complainants’ bill. The object of the suit was to foreclose and obtain satisfaction of two bonds and mortgages, upon the same premises, executed by the defendant Tyler on the 5th of December, 1838.

This was an ex parte application, on the part of the complainant, in the nature of an appeal from the decision of the vice chancellor of the first circuit refusing to grant an injunction upon the complainant’s bill. The complainant was a solicitor of this court, and as such had been retained to defend a suit commenced before the vice chancellor, by Blackett and Stubbs and others, against Lainebeer and* others.

This was an application by N. G. Kortright the surviving committee of the person and estate of his mother, Mrs. C. Livingston, a lunatic, for leave to invest a part of her personal estate in buildings or other improvements on her unproductive real estate ; and for an allowance by way of salary for the care and management of the estate.

This case came before the court upon a general demurrer to the complainant’s bill for want of equity. The object of the suit was to restrain the defendant from proceeding to collect a bond and mortgage given for a part of the purchase money upon the sale of three lots of land, and to recover back the residue of the purchase money which had already been paid.

This was an appeal by the executor and executrix of J. M. Halsey deceased, from the sentence and decree of the surrogate of the county of Kings, decreeing the payment of the amount of a bond and mortgage out of the estate of the decedent, in the hands of the appellants as his personal representatives.

<p>This was an application by the bank commissioners for an injunction for the appointment of a receiver of the property and effects of the James Bank, an association organized under the provisions of the general banking law, and located in the town of Greenfield in the county of Saratoga, The petition of the commissioners, after stating the organization of the association and that in pursuance of the provisions of the act, of the 4th of May, 1840, relative to the redemption of bank notes, the association appointed the Albany Exchange Bank its agent for the redemption of all circulating notes of the James Bank which should be presented to such agent for redemption or payment, alleged upon the information and belief of the petitioners, that in the month of November, 1841, and on or before the 30th of that month, a parcel of the circulating notes of the James Bank were presented at the office of the Albany Exchange Bank, as such agent, for redemption; that the last mentioned bank, as such agent, refused and neglected to redeem the same; and that the same had not been redeemed on the 5th of January, 1842, when the affidavit annexed to the petition was made. The petitioners therefore, charged that the agent of the James Bank had neglected and refused to redeem its circulating notes on demand, and that such redemption had not been made by the agent at its office in Albany within twenty days after such circulating notes were presented there for payment. The petition also stated, upon information and belief, the presentment of circulating notes of the association for payment at its place of business, and a similar refusal to redeem, and that such notes remained unredeemed. To the petition was annexed an affidavit of the cashier of the Albany Exchange Bank, stating the presentment of the parcel of bills at the agency for redemption, in November, 1841, and that such agent neglected and refused to redeem them, and that the same had not since that time been redeemed by such agent.</p> <p>An order to show cause why a receiver should not be appointed, and an injunction granted, having been entered and served, together with a copy of the petition and accompanying affidavit, the president of the bank appeared and showed cause. He did not deny, either upon his belief or otherwise, the allegation in the petition and affidavit that the circulating bills of the bank had been presented at the agency,and the redemption thereof refused, and that the bills had not been paid by the agent, for more than twenty days. But he stated, upon his belief, that for some months previous to the presenting of the petition in this matter, all the circulating notes which had been presented at the banking house of the association were duly paid and redeemed on presentment. He also produced the affidavit of the cashier of the association, who swore positively that all its circulating notes which had been presented at its banking house for payment since the month of August, 1841, had been paid and redeemed at par. An explanatory affidavit of the cashier of the agency bank at Albany was also produced, stating that he did not know that any of the package or parcel of the circulating notes of the James Bank, alluded to in his affidavit annexed to the petition of the bank commissioners, had been presented a second time at the agency for redemption.</p>

This case came before the chancellor upon exceptions by both parties, that is of the complainants and of Nehemiah Rogers, one of the defendants, to the report of the master made in this cause under the decretal order of the 22d of April, 1840. The facts upon which the questions of law arose are stated in the opinion of the court.

This case came before the court upon the exceptions of some of the bond holders of the Life and Fire Insurance Company, to the report of referees. The corporation became insolvent, and upon the application of the attorney general, M. Hoffman and J. L. Lawrence were appointed receivers of its property and effects, under the provisions of the article of the revised statutes relative to proceedings against corporations in equity.

This was an appeal from a decree of the vice chancellor of the eighth circuit. Held: and the residue of the $1700 was paid to E. C. Fish upon his producing and assigning to the complainant a bond and mortgage, for the $2000, purporting to have been executed by H. A. Fish and wife to the assignor and payable in five years with annual interest as agreed upon.

<p>This was an appeal from a decree of the assistant vice chancellor of the first circuit. The object of the complainant’s bill was to set aside an assignment of a bond and mortgage from him to the defendant, and to have another bond, given by him and his father-in-law to the defendant, guaranteeing the payment of such bond and mortgage by the mortgagor delivered up and cancelled, on the ground of usury. The facts of the case were substantially as follows : The complainant held a bond and mortgage against John Anderson, given on the 8th of December, 1836, conditioned for the payment of $3000, in one year, with interest at the rate of seven per cent per annum, payable half yearly. Being in want of money, and understanding that Rapelye was in the habit of purchasing bonds and mortgages at a discount, for cash, the complainant applied to him to purchase the bond and mortgage in question, in June, 1837. Rapelye agreed to purchase the bond and mortgage at a discount of $400, in addition to the interest then due thereon ; provided the complainant would procure his father-in-law, A. A. Remsen, to give a bond, as security to Rapelye, the purchaser, that the whole amount of the bond and mortgage and the interest thereon should be paid to him on the day when, by the terms of such bond and mortgage, they were to become due and payable. The assignment, and the bond of the complainant and of his father-in-law, were given to the defendant accordingly; which assignment stated the consideration paid by the defendant to be $3000, and which sum the complainant covenanted was still due and owing on such bond and mortgage. But the real consideration of the assignment, and of the bond of the complainant and his father-in-law, was the $2600, which by the private agreement between the assignor and assignee was to be paid therefor. The assistant vice chancellor considering this case as not distinguishable from Cram v. Hendricks, (7 Wend. Rep. 569,) and Mazuzan v. Mead, (21 Idem, 285,) dismissed the bill. And from this decree the complainant appealed. The following opinion was delivered by the assistant vice chancellor. '</p> <p>Hoffman, A. V. C. The evidence of Remsen- cannot be admitted. No objection was taken before the examiner to his competency, and the 85th rule entirely precludes me from regarding the deposition. The question is to be decided upon the documentary evidence.</p> <p>The complainant was in the month of June, 1837, the holder of a bond and mortgage given by one John Anderson to him, dated the 8th day of December, 1836, for securing the payment of $3000, and falling due the 8th of December, 1837, payable with lawful interest. On the 26th of June, 1837, the complainant assigned this bond and mortgage to the defendant by an assignment in the usual form, with a covenant that there was due upon the securities the sum of $3000. This assignment was acknowledged on the 27th of June. On the same 26th of June, a bond or obligation was executed by the complainant with one Abraham A. Remsen of which the following is a copy. This was acknowledged also on the 27th of June^ and both it and the assignment were attested by Valentine, the commissioner, as the subscribing witness. “ Know all men by these presents that we, Abraham A. Remsen of the city of Brooklyn and Robert Anderson of the same place, are held and bound unto George Rapelye of the city of New-York, in the sum of six thousand dollars lawful money of the United States, for which payment well and truly to be made, we bind ourselves jointly and severally, and our joint and several heirs, executors, administrators and assigns firmly by these presents. Sealed with our seals and dated this 26th day of June, 1837. Whereas the said Robert Anderson hath, by deed of assignment, bearing even date with these presents, assigned and conveyed to the said George Rapelye a certain bond bearing date the eighth day of December, one thousand eight hundred and thirty-six, made to the said Robert Anderson by John Anderson of the city of New-York, stone cutter, to secure the payment of three thousand dollars on the eighth day of December, one thousand eight hundred and thirty seven, with interest thereon at the rate of seven per cent per annum, payable half yearly on the 8th day of June and December, which said bond is secured by a mortgage executed by the said John Anderson and Matilda his wife upon a certain lot of land situate in Henry-street in the city of New-York, and which said mortgage is recorded in the register’s office of the city and county of New-York, in liber 206 of mortgages, page 354, December 22d, 1836 ; and whereas the said George Rapelye hath accepted the assignment of the said bond and mortgage and paid the consideration therefor contemporaneously with the execution of these presents at the special instance and request of the said Robert Anderson and the said Abraham A. Remsen: JVbio therefore, the condition of this obligation is such, that if the said John Anderson, his heirs, executors and administrators, shall, well and truly pay unto the said George Rapelye, his heirs, executors, administrators and assigns, the said sum of three thousand dollars in the said bond and mortgage mentioned, on the said eighth day of December, one thousand eight hundred and thirty-seven, together with the interest that shall accrue thereon, at the times and in the manner therein specified without default or delay, then this obligation to be void, otherwise to remain in full force and virtue.”</p> <p>It is not contested that these several instruments are to be deemed as forming one contract. The sum received by the complainant on the transaction was $2600. The period which the bond had to run before the whole $3000 was due, was short of six months, and legal interest was also payable. The agreement of Remsen and the complainant in their bond is this—that if John Anderson does not pay $3000 and interest at the time specified, their bond is to be forfeited, that is, the penalty becomes due in form. The sum to be secured would be exactly what John Anderson was bound and failed to pay, that is, the $3000 and interest. Then the whole contract is precisely and summarily this : John Anderson is bound to pay three thousand dollars to the defendant at a given time with interest j and if he fails to do so, Remsen and the complainant agree to pay that amount and interest. In order to get this claim against John, and the property mortgaged in the first place, and against the other parties in the second place, the defendant has paid $2600.</p> <p>Now all this shows that the bond of Remsen and the complainant is, on its face and according to the plain meaning, a naked simple guaranty of the payment of $3000 by John Anderson ; and thus the question is merely whether the transfer of a valid security for $3000 bearing interest guaranteed by the assignor,is a usurious transaction because $2600 only was received by such assignor.</p> <p>While the state of New-York, so late as the year 1837, carried the usury laws to an extent before unheard of in this country, bringing within them bona fide holders of negotiable paper, the great commercial nation of Europe, in the year 1839, abolished them entirely as far as they affected mercantile paper running for a period not. exceeding twelve months. (Statute 2 S? 3, Victoria, cap. 37.) But that act contains a provision that it shall not extend to any loans or advances on real estate or on any interest therein.</p> <p>The case before me must be determined upon the force to be given to the decision in Cram v. Hendricks, (7 Wendell 572,) and the subsequent case of Mazuzan v. Jilead, (21 Wendell, 285.) In the former, the transfer of a business note, legal in its inception, upon a discount exceeding the legal rate of interest, was held valid and not usurious, although the party transfering it endorsed it in blank. The legal construction of such an endorsement was held to be that it guaranteed only the payment of the sum actually advanced upon the transfer of the note with interest.</p> <p>In Mazuzan v. Mead, however, a note for $210 perfectly valid in its creation was transferred upon a discount, usurious if the note had then been made, and the party wrote upon it that u in consideration of $200 paid to him, he assigned the note to the plaintiff and guaranteed the payment thereof.” The language here used as plainly contains an engagement to pay the face of the note upon the default of the principal, as any thing can amount to short of express terms, such as “ the sum of $210.” It seems impossible to give a more explicit meaning to the contract in the case before me than in this case to cover the whole demand. The one is, that if the obligor does not pay $3000 at the time, he will be subject nominally to $6000, from which by law, if the contract is binding, he can only be relieved by paying $3000. The other is that he guaranteed the payment of the note of $210.</p> <p>Indeed, a strict criticism would make the present case more analogous to the blank endorsement than the other, because the express contract is notoriously not to be enforced. Relief on equitable terms of payment is necessarily to be given upon a bond with a penalty. I confess I do not see how the reasoning of the chancellor in Cram v. Hendricks was avoided. And the argument of the counsel for the complainant in this cause was to my mind at the time, conclusive. But after the best consideration, I cannot find a way to distinguish this case from that of Mazuzan v'. Mead. It struck me at first that such a distinction might exist on the ground of the favor to commercial paper which was put prominently forward in Cram v. Hendricks; but I see no ground for such a distinction in the statute.</p> <p>The assignment of John Anderson’s bond and mortgage by the appellant, and the bond executed by him and his father-in-law, Iterasen, constitute one agreement, and are to receive the same construction as if they had been contained in one instrument. (Jackson ex dem. Trowbridge v. Dunsbach, 1 John. Ca. 91. Snow v. Tifft, 15 John. R. 463. Brown v. Dean et al., 3 Wend. R. 208. Van Horne v. Crain, 1 Paige’s Rep. 458. White v. Wright, 3 Barn. & Cress. 273 ; 5 D.& R. 110, S. C.) The substance of this agreement was, that Rapelye should advance to R. Anderson the sum of $2600, in consideration of which Rapelye was to receive, at a stipulated time, being within six months thereafter, $3000 and interest. To carry this arrangement into effect, R. Anderson assigned a mortgage, and executed with a surety a bond to Rapelye. This was a loan of money at an usurious rate of interest. It was not a mere sale of securities. It had the distinguishing features of a loan. The stipulation for the ultimate payment was an essential part of the agreement, and was made an express and indispensable condition of it by Rapelye. The whole object and intention of the parties evidently was, to secure to Rayelye the payment of $3000, with interest, in less than six months, in consideration of his advancing $2600 • and to secure this payment, absolutely and unconditionally, without any risk on his part of the money advanced by him, or even of the usurious interest. The agreement comes most plainly within both the letter and spirit of the law against usury, which courts will apply according to the substance of the transaction, without regard to its form. (Lowe et al. v. Waller, 2 Dougl. Rep. 736.) According to the condition of the bond of the respondent and Rem-sen, payment of $3000 and interest, and not merely of $2600, was secured to the appellant.] for, if $2600 (the amount advanced by him) had been paid to him by the mortgagor, the bond would, nevertheless, have been forfeited, unless the remainder of the amount secured by the mortgage ($3000 and interest) had also been paid to him. This case, therefore, does not come within the principle established in Cram v. Hendricks, (7 Wend. R. 569,) in which it was held, as the express ground of the decision both in the supreme court and the court of errors, that according to the true construction of the contract of endorsement, the endorsee could recover from the endorser only the amount actually advanced by the endorsee. See Mazuzan v. Mead, (21 Wend. R. 285,) which was decided upon a similar principle. The false consideration mentioned in the assignment, is evidence of a design to evade the law against usury, (Fereday v. Wightwick. 1 Russ. & Myln. Rep. 50. Williams v. Hance, 7 Paige, 582. Watkins v. Taylor, 2 Mumf. Rep. 430.) But if there had been no such fraudulent design, the case would still be within the operation of the usury laws, upon the principle that parties must be held to intend the necessary effects of their own deliberate acts. (Havre v. Wilson, 9 Barn. & Cress. 643. Mackie v. Cairns, 5 Cow. Rep. 573.) Rapelye intended for an advance of his money to get an interest or compensation of more than seven per cent per annum, and to get this, absolutely, without any contingency of principal or interest. This was an intent to violate the law against usury ; it was an intent to do an act that was in violation of that law. (Marsh v. Martindale, 3 Bos. & Pul. Rep. 154.) The law deems usury a great public evil, and the provisions made by the legislature to put an end to this evil, ought to receive a liberal construction and to be honestly and fully supported and enforced by courts of justice with exemplary obedience, so as to effectuate the intentions of the law-makers, and to encourage and promote a spirit and a habit of subordination to the laws. (Dunham v. Gould, 16 John. Rep. 375. Livingston v. Harris, 11 Wend. Rep. 336, 337.)</p> <p>The assignment was an absolute sale of the bond and mortgage, without any right of redemption by the seller, and not a loan of money. It had no attribute of a loan. An existing bond and mortgage can be sold and transferred at any rate of discount whatever, exceeding seven per cent, and the sale and transfer cannot be rendered usurious. In every respect it is governed by the same rules as are applicable to a sale by discount of a business promissory note. (Mazuzan v. Mead, 21 Wend. 285. Cram v, Hendricks, 7 Id. 569. Braman v. Hess, 13 John. R. 52. Munn v. Commission Co. 15 Id. 44. Oakley v. Boorman, 21 Wend. 597. 1 Esp. N. P. R. 261.)</p> <p>If the condition of Remsen’s and Robert Anderson’s bond of guaranty had been, that in case John Anderson did not pay the amount of his bond and mortgage, $3000, that they would, it would no more have been usurious than was the endorsement of Cram on the note he transferred to Hendricks, in the case of Cram v. Hendricks decided by this court in 7 Wend. 569, where the note was sold by Cram, with his endorsement at a greater discount than seven per cent, as the endorsement was a guaranty of the amount payable by the face of the note. In fact it is the very case of Cram and Hendricks, and a casus decisis in this court. Still stronger is the case of Mazuzan v. Mead, (21 Wend. 285,) where a note of $210 was sold for $200 (a greater rate of discount than legal interest) and the seller guaranteed in express terms to pay, not merely the $200 and interest, but the amount payable by the face of the note. But the condition of this bond of guaranty is not that the guarantors would pay the $3000 if the mortgagor did not, but is, that if the mortgagor, John Anderson, did pay that sum, then the bond was to be void, otherwise to remain in full force and virtue. Upon this bond judgment would be entered for the penalty, but the execution could only go for the sum equitably due ; the sum actually paid for the bond and mortgage and interest. The consideration of $3000 being expressed in the assignment by the person who drew it up instead of $2600, cannot affect the legal construction of the bond. An instrument is never vitiated by a false consideration. Usury can never depend upon the ease or difficuly of proving the facts in'any given case. The facts of a transaction render it usurious or valid—not the ease or difficulty with which they can be proved. But nothing is more common than to insert in assignments of choses in action, when bought for a less sum than their face, the full amount for which they are payable. Very often the consideration expressed is one dollar. The great principle of the decisions of Cram v. Hendricks and Mazuzan v. Mead, is, that usury is not predicable of an existing valid obligation to pay money on its sale and transfer, and that the law will so regulate the damage to be recovered on any guarantee for the payment given by the seller, that he shall never be called upon to pay more than the sum he received with legal interest.</p>

This was an application on the part of the Seneca County Bank to set aside an order made upon the appeal in this cause, upon the ground that the original application to the vice chancellor for a resale, and the appeal from his decision, had both been made in the name of the corporation without its authority or consent.

This was an appeal from an order of the vice chancellor of the seventh circuit. The bill was filed to determine the right of the defendant, as street commissioner of the second ward of the village of Seneca Falls, to superintend the building of a bridge in the said ward, and to contract for the work and materials necessary for the same.

This was an appeal by the defendant Gray from the decision of the vice chancellor of the first circuit overruling a demurrer to the complainant’s bill. On the 58th of April» 1837, the complainant was appointed by the governor, with the consent of the senate, to be the inspector of flour for the city of New-York, in the place of Farr the then incumbent, whose term of office was to expire on the 9th of May then next.

<p>A soi vico of the subpoena upon the defendant, subsequent to the filing of the complainant’s bill, is necessary to create a lis pendens as against a bona fide purchaser of the subject matter of the litigation, in the court of chancory, who has not actual notice of the suit.</p> <p>But the filing of the bill, and taking out a subpoena and making a bona fide attempt to serve it, is the commencement of the suit as against the defend, ant himself, so as to prevent the operation of the statute of limitations, if the suit is afterwards prosecuted with due diligence.</p> <p>And it seems that such a commencement of a suit by a judgment creditor is sufficient to giv^ the complainant in such suit a preference over the complainant in a similar suit afterwards commenced by another judgment credi. tor of the defendant.</p> <p>Personal service of the subpoena is not necessary to create a lis pendens which is constructive notice to third persons of the commencement of a suit in chancery; and where the subpoena cannot be served personally, a service upon the defendant’s wife, or other member of his family of suitable age and discretion, at the defendant’s place of residence, will be sufficient.</p> <p>And where the defendant is proceeded against as an absentee, under the statute, it seems that the actual publication of a notice of the order for him to appear and answer the complainant’s bill, is equivalent to a service of the subpcena at the defendant’s residence, in creating a lis pendens.</p>

<p>A purchaser of mortgaged premises, which were redeemed within the time allowed by the act of 1837 concerning the sale of real estate by mortgage, is not entitled to retain the rents and profits intermediate the sale and the time of the redemption, in addition to the amount of his bid and the ten per cent interest thereon; although the owner of the equity of redemption neglected to give the requisite security to prevent the purchaser from taking possession of the property immediately after the confirmation of the report of the sale.</p> <p>A sale and assignment of the equity of redemption of mortgaged premises, where the mortgagee is in possession, necessarily carries with it to the purchaser the right to an account for the rents and profits of the premises, as an incident to the right of redemption, and as an equitable offset against the amount due upon the mortgage.</p> <p>Upon a decree of strict foreclosure, where the mortgagee is in possession of the mortgaged premises, if such premises are redeemed within the time allowed by the decree for that purpose, the mortgagee must account to the owner of the equity of redemption for the rents and profits received subsequent to the decree.</p>

The original bill in this cause was filed in February, 1840, by the executors and executrix of H. Eckford, deceased, to obtain a construction of the will of the decedent, and the direction of the court as to the manner in which the complainants were to execute their trust in relation to the distribution of his estate among his devisees and legatees.

This was a bill for partition. D. McLachlan, the father of the complainant and of the defendant John McLachlan, and the ancestor of the other defendants, died in August, 1829, seized in fee of the premises in question, being a farm of 102 acres in the town of Charlton.

This case came before the court upon the petition of A. & J. Van Burén, two of the defendants in the original suit and the only complainants in the cross bill, to open the order to close the proofs in the first entitled cause, and to stay the proceedings therein till the defendants in the cross bill had answered the same, and for such order in relation to the supplemental bill filed by The Farmers’ Loan and Trust Company as should be just.

<p>This was an appeal by the defendants from a decree of the vice chancellor of the fifth circuit. The facts of the case as stated in the complainant’s bill are set out in the report of the decision of the chancellor upon the appeal from the order of the former vice chancellor overruling the demurrer of the defendant Smith. (5 Paige’s Rep. 137, S. C.) After the decision upon that appeal the defendants-answered the bill, denying the complainant’s title to the water privileges claimed by him below the state dam, and also denying that he had any right to, the lands in the bed of the Oswego river. A replication was filed to the answers, and the cause was heard upon pleadings and proofs. The vice chancellor decided that the complainant had established his title to the water privileges claimed by him, and to the lands on the west side of the river at and below the state dam to the middle of the stream. He therefore decreed the lease to be void, so far as it purported to-grant to the lessees or their assigns the right to draw from the state dam the, surplus waters not wanted for the canal, and thereby to prevent the same from flowing to the complainant’s mills and property below y and granted a perpetual injunction against using such surplus waters by taking the same from or through the state dam.</p> <p>The following opinion was delivered by the vice chancellor upon making the decree appealed from.</p> <p>G-ridley, Y. C. The report of this case, (5 Paige’s Rep. 138,) where it came before the chancellor upon an appeal from a decretal order of the late vice chancellor of this circuit, overruling a demurrer to the bill of complaint, contains a very full and accurate statement of the facts as they are set forth in the bill. The answers of the attorney general, and of the defendant Smith, and the proofs taken in the cause, have in some respects changed the facts assumed as true upon the demurrer; and those changes will be adverted to in the course of this opinion, whenever they become material to the decision of any of the points raised in the cause.</p> <p>The first question discussed by the respective counsel, and which I propose to consider, is whether the complainant in the character of riparian proprietor, is to be regarded as the owner of the bed of the Oswego river to the middle of the stream adjacent to his possessions described in the bill. This question was distinctly passed upon by the late vice chancellor, and by the chancellor upon the appeal; and as I had supposed, was put at rest by their decisions, so that it was no longer an open question before this tribunal. It is now, however, contended, that the decision of the court of errors, in the case of The Canal Appraisers v. The People, ex rel. Tibbits, (17 Wend. Rep. 571,) and certain remarks of the chancellor himself made in the course of his opinion in that case, and some new facts given in evidence by the defendants, have thrown doubt on this question and upon this point. The counsel for the defendants now insists, 1. That the complainant is restricted from all right to the bed of the stream by the wording of the grants under which he, and those from whom he derives title, claim. 2. That the Oswego river being a navigable river, its bed belongs to the people of the state.</p> <p>Upon the first of these propositions, there is no doubt but that the description in a deed of conveyance may be so worded as to exclude the right of the grantee from any portion of the bed of a stream. And the chancellor, while commenting upon cases thus circumstanced, in pronouncing his opinion in the case of The Canal Appraisers v. The People, (17 Wendell, 599,) remarks : u In many cases also, the grants upon the borders of navigable streams have been so limited as to confine the patentees to the bank of the stream, by the plain terms of the patent itself. Such is the case, as I understand the testimony of the late surveyor general, in relation to all the grants for military bounty lands which lie upon the borders of navigable rivers. He says, the patent itself only contains the number of the lot; but that the survey and field notes in his office contain a particular description of the boundaries; that where such lots are situated on the banks of navigable rivers, they are bounded on the banks of such rivers or streams, and run thence along the bank of such stream. This is a clear indication of the intention of such grantors that the patent should not include any part of the alveus of the stream, or of the islands therein.” It is true, that the premises of the complainant described in the bill, except the block purchased of the state, are a portion of lot No. 7 in Hannibal, granted to John Allen, by letters patent, bearing date the 7th day of July, 1790, as military bounty lands. An exemplification of the patent, and the map referred to in the description of the premises allotted, have been produced in evidence, in which the land granted is described as “ All that certain tract or lot of land situate, lying and being in the county of Montgomery, and in the township of Hannibal, known and distinguished on a map of said township, filed by our surveyor general in our secretary’s office agreeable to law, by lot No. 7, containing six hundred acres,” and upon the accompanying map, the lot No. 7 is laid down and delineated as lying adjacent and extending to the Oswego river; which, in the absence of any other evidence, must be taken as though the premises were described by words in the grant itself, as extending to, and bounded on the river. So far, therefore as the description in the original grant is material to be considered, it must be regarded as conveying, by the settled construction of the term used in the patent, the land under the water to the thread of the stream. But in some of the mesne conveyances under which the complainant holds, the description of the premises is a little varied. As to one piece, the boundary line is described as extending “ to the westerly bank of the Oswego river; then along said river and the bank thereof north, fifty-two degrees west three chains, thence along said river as aforesaid,” &c. In the description of the other piece the boundary line is stated to extend “ to the west bank of the Oswego river, at low water mark ; thence along the windings of said river at low water mark to the place of beginning.” It is said in Hatch v. Dwight, (17 Mass. Rep. 289,) that where land is bounded on the bank of a stream, such description excludes the bed of the stream. That remark, as applied to the facts of that case, was clearly founded in truth. The facts of the case were such, as to indicate with great certainty, that by the use of the phraseology employed the parties intended to exclude from the operation of the release the bed of the stream. But I do not think that this is the necessary construction of such descriptive words in a grant. The popular understanding of them would doubtless limit the grant to the land adjacent to the stream. And so would the popular understanding of a description which bounded the premises upon the margin of a stream, or on the stream itself; but the legal construction of such words contained in the description of premises in a grant, has by repeated adjudications been established otherwise. {See 6 Cowen, 518, and Mr. Cowen?s note to that case with the authorities therein cited.) The grantors, however, in the language employed to describe the complainant’s premises, as extracted from the mesne conveyances under which he holds, use the phrase bank of the river as* synonymous with the river itself, carrying the boundary line to the bank, and then along the C( river” and not along the “ bank of the river,” and to the west bank at low water mark and 11 thence along the windings of said river.” There is nothing, therefore, in the particular words employed to describe the extent of the complainant’s premises, which indicates an intention to restrict the boundaries of the grant, otherwise than if the premises had been bounded on the river, or on the margin of the river. Nor is there any fact disclosed by the evidence, showing the least reason for believing that the parties who employed the words of the description above cited, intended to secure to themselves the right to the bed of the stream : on the contrary they clearly intended to part with their whole interest. Such a state of facts, however, did appear in the case of Hatch v. Dwight, before cited, and without doubt had a controlling influence upon the decision of the court. The blocks described in the bill of complaint, are situated on lot No. 1, in Hannibal, which had been reserved by the state; and the title of the complainant to these blocks is derived from the state by purchase. These blocks are described in the certificate of sale in the patent subsequently granted to the complainant, as “ blocks number 78,90, 99 and 103, of the village of West Oswego, &c., as the same have been surveyed, and are designated on the map of said village, filed in the office of the secretary of our said state.” An exemplified copy of said map has been given in evidence which exhibits these blocks as adjoining the river ; which I consider as equivalent to a description which in terms should describe them as bounded upon the river. What then was the extent of the premises thus granted by the state 1 In the terms of sale, and in the terms employed in the patent, a phraseology has been adopted, which, as between private individuals, would convey an interest to the middle of the river. And is the doctrine to be tolerated which shall assign one construction to a contract between private citi.zens, and a different one between an individual and the government 1 Would not the adoption of such a rule of construction operate as a fraud upon a purchaser who should pay an enhanced price for land adjacent to a stream of water upon the faith of a contract, which, as between private individuals, would have given him valuable hydraulic privileges 1 It seems to me that but one answer can be given to these questions. I therefore cannot resist the conclusion, that there is nothing in the circumstances attending these grants from the state, and nothing in the words of description employed in such grants, or in the circumstances attending the mesne conveyances, which can properly restrict the riparian rights of the complainant, and prevent him from holding to the thread of the stream.</p> <p>The next question is, whether the Oswego river is a navigable river in such a sense as to prevent the application to it of the principle of riparian ownership; and whether there is evidence before the court, which shows an original and continued appropriation of the bed of the river to the public.</p> <p>In discussing this question it must be borne in mind, that the doctrine of riparian ownership does not give a right to the bed of the stream, and the use of the water incompatible with the superior rights of the public, for the purposes of navigation and commerce. It acknowledges the right of eminent domain existing in the government, and only insists that the riparian owner has such a qualified and subordinate right to the bed of the stream, and the water which flows over it, as is consistent with the conceded rights of the public. (See the 3 d chapter of the first part of Hale’s treatise JDe Jure Maris.)</p> <p>With this explanation of what is meant by the right of a riparian proprietor to the bed of a river capable of being used for the purpose of navigation, we are prepared to en-quire whether this doctrine is applicable to the Oswego river. It cannot be a controverted question, that at common law the Oswego river would be subject to this right. Lord Hale says : “ Fresh rivers of what kind soever, do of common right belong to the owner of the soil adjacent; so that the owners of the one side have of common right the property of the soil, and consequently the right of fishing usque ad filum aqua.” He elsewhere defines what is meant by navigable or public rivers in (he absolute sense of the term, and denominates only those such, which are arms of the sea where the sea flows and reflows. The distinction is also recognized and illustrated in Palmer v. J\/lul~ ligan, (3 Caines, 318, 319,) where many English authorities are collected, which show that the Wey,the Severn and the Thames, are subject to the right of riparian ownership, above the points where the tide ebbs and flows, though they are navigable by boats, See. and are subject to the servitude of the public for the purposes of navigation and commerce. In the case of Palmer v. Mulligan, this doctrine is applied to the Hudson river at Stillwater; which in the language of Ch. J. Kent, “ is a fresh river, not navigable in the common law sense of the term, for the tide does not ebb and flow at that place.”</p> <p>This doctrine has since been sanctioned and confirmed by repeated decisions in this state, and in most of the other states of the union, and applied to streams which were navigable for boats and rafts which had been declared to be public highways by statute. The doctrine thus established as an elementary principle of the common law, and thus sustained by an unbroken series of adjudications in England and this state, is still the law of the land, and has not been overthrown, as has been urged on the argument, by the decision of the court of errors, in the case of The Canal Appraisers v. The People., (17 Wend. 572.) It is true, the counsel in that case contended that this common law doctrine was not applicable at all in this state; and that if it were applicable to small streams that it was not to the large class of rivers. Nevertheless, the decision, as I shall have occasion to show hereafter, does not necessarily repudiate this doctrine, and of course leaves it as the authoritative rule of adjudication which it is the duty of all inferior tribunals to try.</p> <p>The next question is, whether the statutes of the state have changed the common law doctrine of riparian ownership in relation to the Oswego river. It is insisted by the defendants’ counsel, that the court of errors have decided that the various acts of the legislature in relation to the Mohawk river, and the repeated legislative assertions of ownership of the bed of that stream, are evidence, that the state was the owner of the bed of that river. And hence he argues, that the same kind of evidence being furnished, in this suit in regard to the Oswego river, calls for the application of the same principle to that stream. It is proper, therefore, to consider how far that case is binding as an authority. It is undoubtedly binding, not only as to the point actually decided in the case, but as to all the legal principles which are necessary grounds for that decision. In point of fact, a particular judgment of the supreme court was reversed ; and as we cannot know the reasons which influenced the votes of the majority of the court, further than as they are to be found in the views of the senators who pronounced opinions in favor of such reversal, we are naturally led to examine these opinions. Senators Beardsley and Tracy delivered the prevailing opinions. And in page 605, senator Beardsley maintained that the evidence in the case showed that the relator was entitled to only a certain portion of the damages to his waterfall, even on the principles assumed by the supreme court, in relation to the right of the relator as riparian owner, and that the judgment of the supreme court should be reversed for that reason alone. He next argues against the application of the doctrine in question to the Mohawk river, but adds that “ he has doubts of the correctness of the views which he had adopted. And on page 613, he disclaims any general application of that doctrine to other rivers, in the following words : “ Nor do I now, in any further remarks that I may make on that subject, intend to express an opinion that shall be considered binding in reference to other rivers, where grants have been made by the government, particularly since the revolution.” And again he says, “ I hold myself uncommitted should other cases arise in reference to other rivers.” So too, senator Tracy maintains, in page 624, that it is not necessary to discard the application of the common law doctrine of riparian ownership to the Mohawk river in order to warrant a reversal of the judgment of the supreme court. I apprehend, then, that in a case where the reversal of the judgment of the supreme court was placed on grounds entirely consistent with the long established principles of riparian ownership, by the only judges who expressed opinions upon the question, it would be unsafe to conclude that those who gave a silent vote for the reversal acted upon principles hostile to that doctrine. They may have done so or they may not. It is sufficient, that the adoption of such principles was not deemed necessary to a reversal, by the judges who advocated that decision.. If we reject this case as an authority controlling the decision of the case at bar, we are left to an unrestricted ex-animation of the grounds relied on to show an original appropriation of the bed of the Oswego river by the state. In support of this proposition the counsel refers to the act passed for establishing the land office and other purposes j (1 Ch'eenl. ed. Laws, p, 284 ;) which provided that the commissioners should be authorized to grant so much of the land under the navigable rivers as they should deem necessary to promote the commerce of the state, with the proviso that no such grant should be made to other than the owner of the adjacent lands.</p> <p>I cannot think that the legislature intended by this provision to declare that the doctrine of riparian ownership was inapplicable to rivers which were navigable in the most extended sense of the term. The common law interpretation of the term navigable had been long settled. It had received a construction by adjudication, and when applied to a river, it meant a river where the tide ebbed and flowed and by the principles of the common law the bed of such a stream belonged to the state. (3 Caines, 318.) The legislature then should be deemed to use the term in a legal sense when they are applying it to create or describe a legal right. In that sense the law would violate no existing principle of private right; whereas, by adopting the construction claimed by the defendant, it would seriously infringe the established common law rights of the citizen. It is also to he remembered, that this provision has existed since a very early period of the government; and it does not appear that, in the practical construction of it, the commissioners of the land office have ever conveyed any lands in the bed of any of the rivers of the state which were not navigable in the common law sense of the term. Again, the claim on the part of the state is wholly inconsistent with the doctrine advanced in the case of Palmer v. Mulligan, and several subsequent cases, wherein the doctrine of riparian ownership was held to apply to streams which were navigable in the same sense that the Oswego river is navigable.</p> <p>The defendant has given in evidence several patents of islands in the Seneca and Oswego rivers granted by the state; and has referred me to pages 359th and 360th of the 13th vol. of Wendell’s Reports, which, though not strictly evidence in the case, serve to show historically that the state authorities have granted other islands in the same streams. In my judgment the chancellor has satisfactorily answered the argument founded on such grants, in his learned opinion in the case of The Canal Appraisers v. The People, (17 Wend. 599, 600.) But it would seem to be enough that the most strenuous advocates for the right of the state to the bed of navigable streams, senators Beardley and Tracy, with this very evidence before them, took the precaution to repel by unequivocal language the application of the principle contended for in the case before cited, to any other river than the Mohawk; and expressly reserving their judgments as to all other cases. (17 Wend. Rep. 613.)</p> <p>On the other hand the patent to John Allen, and the patent to the complainant granting the blocks in West Oswego, convey the premises thus granted by such words of description as, by the established construction of such language in grants between private citizens, carry the title to the bed of the river. In addition to this the complainant has given in evidence an exemplified copy of letters patent to George Scriba of a large tract of land bordering upon the Oswego river, issued in 1794, in which the descriptive words are of similar import. Now when these patents were granted the state owned the lands adjacent, and by consequence the bed of the stream itself. The state officers advertise and sell these lands thus bordering on the stream of water, which lands are mainly valuable for hydraulic privileges, but nearly worthless provided these patents do not convey the land under the water and the use of the water flowing over it. The purchaser buys them with reference to the value of such hydraulic privileges. The proper agents of the state convey the premises by patent, which as to its form and requisites passes the supervision of the law-officer of the government; and which by settled legal construction conveys the bed of the stream, and the water flowing over it. Can it then be asserted, with any semblance of justice, that the state is not estopped from claiming the bed of the stream thus conveyed 1 Can the state convey valuable hydraulic privileges by words which under the law of the state have received a settled interpretation, and then claim an exemption from the legal effect of such construction 'l Is not a contract between the government and an individual to be construed by the same rules as a contract between private citizens % Would not a departure from the settled construction of the words of a grant, when the state happens to be grantor, operate as a fraud upon a purchaser who made the contract with reference to its ordinary interpretation, and who paid his money relying on the soundness of his contract and the good faith of the government "2 It seems to me, that, according to all just principles, whether of morals or of law, the government is bound by its contract according to its settled legal interpretation; and that the state, by the terms of its own grant is estopped from denying the complainant’s title to the bed of the Oswego river, and to the use of the water flowing over it, adjacent to the premises described in the bill of complainant.</p> <p>In the language of the court in the case Ex parte Jennings, (6 Cowen, 528,) “ If the state had intended to retain" the property in the stream, they should have inserted an express reservation or exception in their grant.” The way is now prepared for the inquiry how far the rights of the complainant as riparian proprietor, and of those under whom he claims, have been affected by the erection of the state dam in the Oswego river. It appears by the evidence that in 1824 or 1825, the canal commissioners caused the state dam to be erected, across the Oswego river, for the purpose of raising a supply of water for the Oswego canal, constructed on the east side of that river ; that a body of water is elevated some 10 or 12 feet high by this dam, and that a large surplus of water passes over the dam, which of course is not necessary and cannot be used for the supply of the canal. The complainant owns the land both above and below the dam, and opposite to the dam where it is connected with the west bank of the river. At the time when the state dam was erected, the blocks described in the bill belonged to the state ; the piece of land first described in the bill was then owned by the heirs of Daniel Burt, and was valuable for its hydraulic privileges ; and the piece secondly above described then belonged to James Burt, and was not valuable for such privileges.</p> <p>The defendant’s counsel insist, that all the land covered by the dam and by the water therein, and the land upon which the water falls, must be regarded as having been appropriated by and as now belonging to the state; and that as the complainant purchased after the erection of the dam, he never obtained any interest in the land so appropriated. This proposition involves a most important and interesting question in relation to the relative rights of the state and private citizens. It is an incontrovertible proposition, that the government has no power to take the private property of a citizen, except for public use. Such was the doctrine of the civil law, and such has ever been held to be the doctrine of the common law, both in England and in this state. (See 2 Kent’s Com. 339, 340 ; 2 John. Ch. 11.166, 167; 1 Black. Com. 138, 139 ; 3 Dali. Rep. 191, 235 ; 3 Story’s Com. on the Const. 661.) The constitutions of the United States and of this state have placed a further safeguard around the principle of private right, and have provided that private property shall not be taken for public use without just compensation. No statute law, therefore, which clothes the agents of the state with powers inconsistent with these great constitutional principles, is valid ; and no act of the canal commissioners, in conflict with these principles, whether sanctioned by an act of the legislature or not, has any binding- force. The powers of the commissioners, as to the appropriation of land and property in the construction of the Oswego canal, were the same with those conferred by the act,, entitled “ An act respecting navigable communications between the great western and northern lakes and the Atlantic ocean. (Laws of 1817, p. 300.) By the third section of that act, the commissioners were authorized ££ to enter upon, take possession of and use all and singular any lands, waters and streams necessary for the prosecution of the improvements intended by the act,” &c. and to make all such canals, feeders, dykes, locks, dams and other works and devices as they might think proper for making said improvements, doing nevertheless no unnecessary damage. What then, under the provisions of this act, in the case under consideration, was taken and appropriated to the public use 1 Clearly all the land and water which were necessary for the improvement which the commissioners were then prosecuting. In other words, they took all the land and water necessary for the furnishing of an adequate supply of water for the Oswego canal. Was the water accumulated in that dam, from the moment it passed over the top of the dam and in its descent to the bed of the stream below the dam, necessary for the supply of the Oswego canal 1 On the contrary, the moment it commenced its descent it was incapable of beng appropriated to that purpose, and it had ceased to be consecrated to the public use. It had become physically impossible to appropriate it to such use. The public property in it had ceased to exist; and in my judgment, the right of the riparian owner, which had been suspended, revived and reattached to it in full force, subject to no restriction, except that servitude to public interest, for the general purposes of navigation, which existed before the erection of the dam. It was necessary, for the purpose of divesting a portion of the waters of the Oswego river to the Oswego canal, to raise a large accumulation of water in the dam, and much more than could be diverted for the use of the canal. And as this dam was erected by the state, it became public property, so that no person possessed the right of drawing off any portion of the accumulated water, through the dam itself, by inserting a flume and gate in it; for that would involve a trespass upon the property of the state. This consideration, however, does not affect the right of the riparian owner to the -water after its escape over the dam. That depends solely on the right of the state to appropriate the property of a citizen to any other purpose than public use. That is a right which does not exist, and cannot lawfully be enforced either with or without a provision for compensation. The government has the power, under the constitution, to appropriate the private property of its citizens, just so far and no farther than is necessary for the purpose and object of the appropriation ; and that may be an absolute and exclusive right to land or water, or it may be a partial or common or usufructuary right, according to the nature of the property and the circumstances of the case. But when such purpose is accomplished, the right of the state is exhausted, and the whole of the residue of the property, whatever it may be, belongs to the citizen. In this particular case, the state has the absolute and exclusive right to the land on which the dam is built, and to the dam itself. It has also an absolute and exclusive right to so much water as is necessary to be diverted for the supply of the Oswego canal, and by necessary consequence it has a temporary and usufructuary right to all the water in the dam, as a means of keeping an adequate supply for actual diversion. And it has a partial right to the land on wrhich the water flows ; that is, a right to have the water fall upon it. The state, therefore, may lawfully appropriate the property of the individual owner to this extent, by making proper provision for compensation for the damages sustained. Beyond this, I apprehend the power of the government does not extend ; and all right to the property, or to the use of it, which is not thus appropriated, may be enjoyed by the original owner of it or by his grantees. Of course, the complainant in this cause has a right, notwithstanding the objections arising from the alleged appropriation by the state, to use the water in its descent from the dam, and to use his hydraulic privileges below the dam, although he may raise the water at the foot of the dam, provided he does not injure the dam erected for public use.</p> <p>The question now arises whether the lease of the surplus waters, set out in the bill as being held by the defendant Smith, is in conflict with the right of the complainant as above declared. This must depend on the true construction of that instrument. By it, the canal commissioners assumed to grant and lease to the original lessee, all the surplus waters which, without injury to the navigation or security of the canal, might be spared from the Oswego canal, to be taken and drawn from the west wing of the first dam above Oswego, including one half of the surplus waters on said dam, in such place and in such manner as the said canal commissioners should from time to time deem meet and advisable for the security of the canal, and for the convenience of the navigation thereof.</p> <p>If the principles which have been already advanced are well founded, then the person owning the land adjacent to the state dam at the time of the execution of the lease was then entitled, and the complainant having succeeded to his rights, is now entitled, to have the surplus waters flow oyer the state dam, and to use them in their descent to the bed of the stréam, if he can do so without injury to the navigation of the river. This right is utterly inconsistent with the right granted by the very terms of the lease. By these terms the lessees are authorized to draw off all the surplus waters on the west wing of the dam. These waters cannot be taken and drawn from the west wing of the dam without destroying the complainant’s right to them in their descent over the dam ; and in granting this lease, my opinion is that the canal commissioners exceeded their authority. It will be perceived that the ground on which I have placed this decision will render it unnecessary to examine several questions, which were discussed by the counsel, relating to the complainant’s alleged rights under certain statutes, providing for the disposing of the right to use the surplus waters, to those who had before the erection of the the state dam possessed hydraulic privileges theretofore used, and also to persons owning the land adjoining any dams that might be erected. It will also be seen that I have assumed that the complainant must so use this surplus water as not to injure the owners on the east side of the river (though it is shown that one of the wing dams did so) and without creating a public nuisance in the river. But it is proper to add, that whether that be so or not, is not an inquiry which can be drawn in question in this collateral way. (3 Caines’ Rep. 315. 7 Cowen, 266.) If the</p> <p>above opinion is a correct exposition of the rights of these parties, it gives the complainant the right to valuable hydraulic privileges, adjacent to his premises adjoining the Oswego river, which would otherwise be comparatively useless; and it will readily be seen therefore, that this lease, which by its very terms destroys the complainant’s right to these privileges, constitutes what the law denominates a cloud upon his title to them. Although the lease is invalid, it nevertheless brings the complainant’s right to these privileges doubly in dispute, and essentially impairs the value of his property in them. It is obvious that purchasers would be far less likely to purchase mill sites of the complainant, with this cloud hanging over the right to use the waters in their descent from the dam ; and especially under a pending notice from the defendant, that he shall, under the right conferred by this lease, claim an accounting and reimbursement for the use of such waters. It is unnecessary to cite cases to show that this is a proper and fit case for the exercise of the jurisdiction of the court" of chancery. The decree will therefore declare the rights of the complainant in accordance with the principles above advanced, and will declare the lease void so far as it assumes to convey the right to draw the surplus waters from the dam, thus preventing or diverting them from their descent to the stream below ; and it will also enjoin the defendant from thus drawing or diverting said waters.</p> <p>This, however, is not a case where costs should be awarded against the defendant Smith. He has merely asserted a right under a lease executed by the agents of the state, under a belief entertained in good faith that such lease was valid. The original lessees paid the state a valuable consideration for the privileges granted by the lease, and the defendant Smith has paid a fair consideration for the assignment of it to himself. Under such a state of facts, it would be a severe exercise of the discretion vested in the court in relation to the subject of costs, to award them against a bona fide purchaser of rights granted by the state, under the sanction of its officers who believed they were acting under the authority of the law.</p> <p>The respondent does not now and never has owned the bed of the Oswego river on which the west half of the state dam mentioned in the bill was built. The Oswego river is not mentioned in the patent. The lot is granted as described or distinguished on a map of said township filed by the surveyor general in the secretary’s office according to law. The map excludes the river as effectually as any words in the grant could do. If the Oswego river and its bed be regarded as having been private property at the time the state dam was erected, the land on which the dam stands and upon which the water falls from the dam, must be deemed to have been appropriated by, and as now belonging to the state in fee, and as the complainant purchased after such appropriation was made he never has had any interest or estate in the land so appropriated. The Oswego river is a navigable river and the commissioners of the canal office had no power to grant its bed except in the manner provided for by law. (1 Greenl. Laws N. Y., 284, ch. 37, § 18. 1 R. L. of 1802, p. 293, § 11. Idem of 1813, p. 293, § 1.) By the statute laws of 1819, (ch. 199, § 1,) the power is extended to land under the water of navigable lakes. To show that the legislature have regarded the Oswego as a navigable river, see Laws of 1820, p. 105, ch. 117, § 7; Idem of 1824, p. 279, ch. 342, §§ 1, 2 ; Idem of 1812, p. 442, § 6. The lease is a valid contract, and if it be not the respondent has no such interest in the surplus water mentioned in the lease as entitled him to file a bill in this court to- set aside the lease. If the lease be set aside there is no statute which will entitle the respondent to the use of the surplus water. The respondent cannot have the right to intercept the water in its descent from the dam because it is then over the land belonging to the state and must be the property of the state. The respondent cannot use the water in its descent from the dam for any hydraulic purpose, unless he builds mills immediately below the dam upon the bed of the river, and this he cannot do, without an act of the legislature authorizing it to be done, because the Oswego river is a public highway. Although the principal object in building dams across the Oswego river, was to improve the navigation of that river, yet the legislature, when water is raised in a dam belonging to the state, have the same right to control its use as well for hydraulic purposes as for the purposes of navigation. And the legislature have the same constitutional power to cause dams to be erected across large streams of water for the purpose of creating hydraulic privileges, as for the purpose of navigation. Should a dam erected for the sole purpose of creating hydraulic privileges, very much improve the navigation above the dam, the legislature would have a right to compel any person to pay toll who should use the same for the purpose of navigation.</p> <p>The decree in effect although not in terms establishes the respondent’s title to the bed of the Oswego river notwithstanding that river is a public highway, and the respondent’s right and title has not been established at law. Mitf. Pl. 129, 147, 148.)</p> <p>Grants of land bounded on rivers and streams above tide water (and of course upon the Oswego river,) extend to the centre or thread of the stream. The terms of the several grants set forth in the bill of complaint are such as to bound the land of the complainant upon the margin of the river, and therefore upon the principle last stated to extend his title to the centre of the river. The act of 1798, declaring the Oswego river a public highway does not impair the complainant’s individual rights, but only renders them subject to an easement in favor of the public for the purposes of navigation. The lease of which the defendant is assignee is void, because its effect is to take the property of one citizen and transfer it to another, which can be done neither with or without compensation. The complainant’s right is sufficiently clear to entitle him to relief without a trial at law. By the law of this state, as it always has been and yet is, the complainant, as riparian owner is seized of the bed of the Oswego, river and of a right to the use of the water to the centre of the river opposite to his land described in the bill. The canal commissioners in the prosecution of the improvements of the Oswego river were authorized to take for the use of the public only such lands and water as were necessary for the purposes of navigation, and the surplus remains to the original owner to be used in any manner not inconsistent with the public rights of navigation. The canal commissioners had not by law, any right to put the complainant, or those under whom he claims, in such a situation as to deprive them of the power to avail themselves of the benefit of the provisions of the act entitled, “ An act for the relief of the owners of hydraulic privileges in cases where dams are erected by canal commissioners,” passed April 5, 1823, (Laws of 1823, p. 132,) but the lease in question, if valid, would have the effect so to deprive them, and it is for that reason void. The lease in question was issued contrary to the provisions of the statute, authorizing the leasing of surplus waters. The west half of the Oswego river not constituting any part of the Oswego canal, the canal commissioners possessed no power under tne statute, to lease the water mentioned in the bill, and the lease for this reason is void. Whenever the canal commissioners construct a dam across a river to divert a portion of the stream for the purpose of the public use, they do not thereby acquire a title to the whole water of the stream : but if in so erecting a dam they improve the hydraulic power of an individual, that individual is entitled to use the same in its improved state in any manner not inconsistent with public navigation and without rendering any compensation therefor to the state. .</p>

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

This was an appeal by the defendants from a decision of the vice chancellor of the third circuit, refusing to open the decree which had been made and entered in this cause in September, 1839. The object of opening the decree was to have it re-entered as of the present time, to enable the defendants to appeal from such decree; the time for appealing having expired.

This was an appeal from an order of the vice chancellor of the first circuit denying the defendant’s application to dissolve an injunction. The bill was filed by certain owners of property in the city of New-York, on the east side of the second avenue, to restrain the defendant from electing a slaughter house at the corner of that avenue and fifth street, and from slaughtering any cattle or other animals at that place, or permitting them to be slaughtered there.

The bill in this cause was filed to restrain the executors of J. Birdseye, deceased, from prosecuting a suit at law against the complainant and the defendant Bacon, upon a joint note executed by both ; and to have such note delivered up and cancelled, on the ground of usury.

This case came before the court upon a demurrer to the complainant’s bill of discovery. The defendant had sued the complainant in an action of slander, for charging the defendant with having killed a woman in Schoharie, and of malpractice as a cancer doctor.

The bill in this case was filed by the wife for a dissolution of the marriage contract, on the ground of the adultery of the husband. The bill alleged that the parties were married in the city of Albany in 1835, and that from that time both parties had been and still were inhabitants of this state. The first act of adultery wTas charged to have been committed with an inmate of a house of ill fame in the city of New-York, in 1838, whose name was unknown to the complainant.

This case came before the court upon a plea of the defendants to the complainant’s bill. E. L. Parsons, the decedent, and the defendant John Hughes, in 1832, formed a copartnership in New-York, in the business of importing and vending dry goods, under the name or firm of Parsons & Hughes.

This was an application by the complainants to substitute a new surety to a bond given upon the allowance of an injunction, upon an affidavit that the surety in such bond was a material witness for the complainant in the suit.

This was an application for the appointment of a receiver, upon a creditor’s bill. - Different plaintiffs, having three judgments recovered by them respectively in a justice’s court, which judgments in the aggregate amounted to more than $100, but no one of which amounted to $50 at the time of the recovery thereof, joined as complainants in this suit.

This was an application by E. A. Bancker, a stockholder of the Rossie Galena Company, and one of the defendants in this suit, for an order and injunction to restrain certain creditors of the corporation, whose executions against the property of such corporation had been returned unsatisfied, from proceeding at law against the petitioner for the recovery of their respective debts.

This was an appeal from an order of the vice chancellor setting aside an ex parte order extending the time for the defendants to answer.

This was an appeal from a decision of the vice chancellor of the eighth circuit, denying the defendant’s application to dissolve an injunction, and granting the motion of the complainants for the usual reference to appoint a receiver, upon a creditor’s hill against the judgment debtor alone. One of the complainants was a judgment creditor of the defendant upon a judgment recovered in the supreme court, on which there remained due $71,32, exclusive of interest.

This was an application to dismiss an appeal from an interlocutory order, upon the ground that the appeal was not entered until more than fifteen days after the appellant was aware of the entry of the order; although no notice of such order had been served.

This was an application for an order upon the complainants to pay to the defendant’s solicitor the costs of attending to oppose the taxation of a bill of costs pursuant to notice ; which bill of costs was not presented for taxation at the time specified in the notice.

This was an application to compel the payment of the costs of an interlocutory motion allowing the defendants $. Seaman and H. Seaman to put in an answer to the complainants’ bill, and directing them to pay the costs of entering the order to take the bill as confessed and of opposing their application.

This case came before the court upon exceptions to the report of a master, to whom it was referred to inquire and report who were the next of kin and heirs apparent of B„ Taylor, a lunatic, and also to report who was or were the most proper person or persons to be appointed the committee of his estate.

This was an application by Hayden and Montross, two of the judgment creditor’s of G. Webb, one of the defendants in this suit, for the surplus moneys arising upon the sale of mortgaged premises; and to compel C. Webb, a subsequent mortgagee, to pay the costs to which they had been subjected by the litigation of their claims before the master. The master’s report was confirmed, without any exceptions having been filed thereto.

This was an appeal from a decision of the vice chancellor of the first circuit overruling a demurrer to a bill of discovery. The object of the bill was to obtain a discovery to aid the complainant in a suit at law j or rather to aid him in resisting an offset, which tile defendants had claimed in the suit at law, in a notice annexed to a plea of the general issue which had been pleaded in that suit.

<p>This was an appeal by the complainant Paterson, and by E. D. Smith the assignee in bankruptcy of Mack the other complainant, from an order of the vice chancellor of the eighth circuit, denying an application for an injunction.</p> <p>The facts in the case were substantially as follows:</p> <p>In June, 1837, F. W. Paterson and E. Avery, who were engaged in milling business at Rochester under the co-partnership name of Paterson & Avery, together with T. J. Paterson and J. F. Mack, the complainants in this suit, as their sureties, entered into an agreement with the defendants, who were commission merchants at Boston, by which the latter were to accept the drafts of Paterson & Avery, from time to time, for the purpose of purchasing wheat to be manufactured into flour and sent to the defendants to be sold on commission to meet such drafts ; and by which agreement Paterson & Avery, and the complainants, as their sureties, covenanted that Paterson & Avery should^ on the first days of January and July in each year, account with the defendants for all acceptances before then made by them of such drafts, and should, at such accountings, leave in their hands flour sufficient to cover all such acceptances, together with commissions, or should pay the deficiencies, if any, in money. Paterson & Avery having failed to meet their drafts in flour, or to pay the deficiency according to the agreement, the defendants, in February, 1838, commenced a suit against them and their sureties ; and in October, 1839, recovered judgment against them upon their agreement, for $7779,18, besides costs, upon a report of referees. This judgment was stayed by an application to set aside the report until October, 1841, when the decision of the referees was confirmed by the court. Pending that suit the complainants filed a bill in this court; and obtained an injunction to stay the proceedings at law, and to obtain such injunction they gave a bond, with O. E. Gibbs and W. E. Lathrop as their sureties, conditioned for the payment of all monies which might be recovered in such suit at law for debt and costs, and for the payment of the costs of the suit in this court, as required by the provisions of the revised statutes. The injunction having been dissolved, and the judgment at law perfected, Bangs and Alcott applied to have the bond delivered up to them to be prosecuted. The complainants thereupon filed their bill in this cause, stating, among other things, that the proceeds of some of the drafts of Paterson & Avery had been remitted to the defendants in money, and applied by the latter in payment of drafts drawn and accepted previous to the agreement of 1837 ; which was substantially the same matter that had been attempted to be proved as a defence in the suit at law on the agreement. The complainants also alleged, in their bill, that the answer of the defendants in the former suit, containing as it did a denial of the knowledge of material facts which could now be established by the testimony F. W. Paterson, one of the defendants in the suit at law, rendered it unsafe for them to use such answer as a defence in that suit; hut that, as they were now advised, he could be used as a witness in this court in their favor, and that he was well acquainted with all the facts constituting the defence which they attempted to set up and prove in the suit at law. The complainants thereupon expressly waived an answer on oath from the defendants, and prayed for an injunction to restrain such defendants from prosecuting a suit at law against them and their sureties, upon the bond, until the coming in of the answer and the further order of the court, and for general relief. Subsequent to the filing of this bill, Mack, one of the complainants therein, was duly declared a bankrupt, and Smith was appointed his assignee. The other complainant and Smith the assignee thereupon presented a petition to the vice chancellor, stating the filing of the bill and the contents of the same ; that subsequent to the filing of the bill an order had been made for the delivery of the bond to the defendants, to be prosecuted, and that a suit had been* commenced thereon, against the complainants and then-sureties in the supreme court; and they prayed that an injunction might be issued according to the prayer of the bill. The vice chancellor, upon hearing of the parties, denied the application with costs. From which decision the petitioners appealed to the chancellor ; who, upon the opening of the argument, stated that it appeared that the official assignee of the complainant Mack was not-a party to the suit, and had no interest whatever in restraining a suit against Mack or his sureties ; that he was not there-, fore a proper party to the petition, nor to the appeal; and that Gibbs and Lathrop the sureties were necessary parties to a bill for an injunction to restrain a suit at law against them jointly with the complainants. The counsel for the respondents, for the purpose of disposing of the case upon the merits, thereupon consented to waive these objections of form for the purposes of this appeal merely.</p> <p>The following opinion was delivered by the vice chancellor :</p> <p>Whittlesey, V. C. This is another of those cases in which it becomes necessary to determine whether the circumstances attending it will authorize the court of chancery to review the adjudication of another tribunal. The general rule applicable to this class of cases is reported almost verbatim in a number of cases. Any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law j or of which he might have availed himself at law, but was prevented by fraud or accident, without any fraud or negligence in himself or his agent, will justify an application to a court of chancery, {The Marine Ins. Co. v. Hodgson, 7 Graneh, 236. Duncan V, Lyon, 3 John. Ch. Rep. 356.) From the numerous cases which I have examined bearing upon the subject, I deduce another rule, which is this : that if a party has the means of defence within his power, whether those means are available at law, or only available in this court by bill of discovery or relief, and the party knows of the existence of these means before the trial at law, and neglects to use them, and goes to trial at law upon other proofs and other questions, and fails, the court will not afterwards give him relief. I believe it is the spirit of all the cases, that a party must avail himself of every means of defence within his knowledge and power at the time of going to trial, or he will, be afterwards precluded from urging it. Judge Kent says, in Le Grun v. Governeur Sr Kemble, (1 John. Cas. 502,) “Every person is bound to take care of his own rights and to urge them in due season and proper order. This is a sound and salutary principle of law. Accordingly, if a defendant having the means of defence in his power neglects to use them, and suffers a recovery to be had against him by a competent tribunal, he is forever precluded. (See also Lansing v. Eddy, 1 John. Ch. Rep. 49.) Lord Hardwick says, that a court of equity will not always relieve against a verdict when the defendant submits to try at law first, when he might by a bill of discovery have come at the fact by the plaintiff’s answer upon oath before any trial at law was had. (Williams v. Zee, 3 Atlc. 223.) It is upon the ground that the party was ignorant of a material fact without any inattention or negligence on his part, so that he could not use it in any way until after the trial at law, that this court will in some cases give relief after judgment when justice demands it. (See Bateman v. Wilton, 1 Sck. $ Lef. 201; Simpson v. Hand, 1 John. Ch. Rep. 91; Smith v. Lowery, Id. 320; Beecher v. Elkins, 465 ; Bodge v. Strong, 2 Jo An. CA. JRep. 228; -Foster v. IFcod, 6 Id. 87.)</p> <p>A court of chancery will not relieve against the negligence of a party ; and I have supposed that if a party knows enough of his case before the trial at law, to know that his defence is not available at law, but that he can only succeed in this court upon a bill for relief, and neglects to file such bill, and goes to trial at law and fails, that it is such negligence that he will not afterward be entitled to relief here.</p> <p>The complainants’ counsel supposes this case is similar in its construction to that of Horton v. Woods, (5 Paige’s Rep. 249.) In that case the general principles governing the interference of chancery with judgments at law were discussed and passed upon, although the complainant finally failed from a deficiency of proof to sustain the allegations of his bill. (S. C., 22 Wendell’s Rep. 520.) In that case the complainant endeavored to introduce proof of his defence at law, but it was ruled out both at the circuit and by the supreme court. It was a case where the proof of the defence was to come from the admissions of the opposite party, though only a nominal party ; and the proof was ruled out because the party who made the admissions had parted with his interest before they were made. It was a case where a bill of discovery could not aid the defendant at law. It could only be aided by a bill for relief; and it does not appear from the case that the defendant at law knew that he could have aid only by bill of relief until after the trial at law. The only opinion delivered in the same case, in the court for the correction of errors, seems in that case to hold the judgment at law final, and not proper to be recovered by a court of chancery, though the decision of that court was upon the failure of the complainant to prove the allegations in his bill. (22 Wend. Rep. 50.)</p> <p>In the case now before us the proof that the complainants wanted was the testimony of one of their co-defendants at law—proof which, of course, could not be reached by a bill of discovery. They did seem to suppose that a bill of discovery against the plaintiffs at law would furnish the necessary proof. They tried the experiment, and the proofs thus elicited were not such that the defendants were willing to use the answers on the trial at law. They knew then, before going to trial, that- they must either file a bill in this court for relief, so as to secure the testimony of one of their co-defendants, or that they must go to trial upon such proofs as they had. All the facts which had a bearing upon their case had been within their knowledge. They chose to go to trial at law, trusting to succeed upon the proofs which they could extract from the accounts of the opposite party, of which they had copies in their possession ; and also before the supreme court on a motion to set aside the report. The only question now is, can they come here after deliberately going to trial at law, with a full knowledge of the facts of their case 1 I will suppose that the agreement set up on the trial was only prospective in its operation, as I certainly so consider it. I will suppose that F, W. Paterson was the only witness by whom it could be proved that the previous indebtedness of Paterson & Avery was paid out of the proceeds of drafts drawn after the date of the agreement—that if such a state of facts had been proved, the report would have been in favor of the complainants, and that F. W. Paterson could not be used as a witness, because he was a party to the record. Still all these facts were known to the complainants before the trial at law ; and if the legal inference from the facts are such as the complainants’ counsel draws, they could have succeeded in this court on a bill for relief filed before the trial at law. The only question then is, was there such negligence on their part in not filing such a bill before the trial at law, as to preclude them from resorting to this court now, in that shape 1 If the general rules which I have heretofore deduced from the cases are sound, this was such negligence as to preclude them now from calling in question the judgment at law. They have chosen to abide by one species of defence and neglect another. They have chosen to go to trial to one tribunal, with full knowledge according to their own views of the case, that they had ample relief in another. They neglected to resort to a forum which would give them certain relief and run the chance in their means at law. There was no surprise at the facts, no accident to shut out their proof, no fraud to suppress them. There was only disappointment as to the result. It appears to me that to permit them again to be heard here under such circumstances, would be to permit parties to experiment, upon the chances of litigation in the different courts than the spirit of our laws would tolerate, and to protract litigation and postpone the final termination of legal controversies much longer than the policy of o.ur laws deems allowable -or proper.</p> <p>In coming to the conclusion to which I have arrived, I lay out of the question the fact that it does not appear that these complainants will be injured by the judgment against them, as it does not appear that Paterson & Avery are insolvent. I lay out of view several other considerations of a rather technical nature, and prefer to place my decision upon the ground above suggested, as involving an important principle, not perhaps yet definitely decided. The motion to make the injunction absolute is denied, and the temporary injunction allowed is dissolved with costs against the complainants to be taxed.</p>

This was an application by the complainants to dismiss an appeal, by Evertt & Kingsley, two of the defendants* from a decree of the vice… Held: taken, or received by the defendants, or either of them, for or on account of the sale, conveyance, transfer, charge, lease, or other disposition of any other portions of such lands, &c. and required Burke, Everett and Kingsley to assign to the receiver such contracts, securities, &c. ; and reserving all other questions until the…

This was an appeal from an order of the vice chancellor upon a review of the master’s decision on an ordinary reference upon a creditor’s bill. The defendant had neglected to execute an assignment of his property to the receiver, and the master for that reason refused to decide what property the defendant had in his possession or under his control, and to direct such property to be delivered to the receiver.

This was an appeal from a decision of the vice chancellor of the first circuit. A judgment creditor’s bill was filed in this cause, and a receiver of the defendant’s property was appointed in October, 1841, and the defendant afterwards assigned his property to such receiver. At the time of the appointment of the receiver, the defendant was tenant to the appellant Graham, and his furniture was in the house upon the demised premises.

<p>Where an original bill was filed by B. and W., against P. to obtain a eonveyance of real estate, and a replication was filed to the defendant’s answer to such bill, and after the filing of such replication, B. purchased the interest of his co-complainant in the subject matter of the suit and after-wards died ; and the heirs at law of B. thereupon filed a supplemental bill, in the nature of a bill of revivor and supplement, to continue the proceed, ings in their names ; to which bill the defendant put in an answer, without oath, denying the allegations in the supplemental bill; Held, that such heirs at law should file a replication to the defendant’s answer to the supplemental bill, and proceed to take proof of the matter put in issue by that answer, in connection with the, proofs of the matters in issue upon the original bill; leaving the question as to the right of the complainant to have the benefit of the original bill, and of the subject matter of the same, to be finally decided at the hearing, upon the proofs in the cause.</p> <p>Held also, that unless the facts put in issue by the answer to the supplement bill, were proved by the complainants in the usual way, such bill should be dismissed at the hearing.</p> <p>Held further, that if such facts were proved, as well as the matters put in issue upon the original bill, the new complainants would be entitled to the same relief that the complainants in the original bill would have been entitled to if they had both lived, and had continued to retain their interests in the subject matter of the litigation, as it was at the commencement of their suit.</p> <p>Where a simple bill of revivor is filed, or a supplemental bill in the nature of a bill of revivor, it seems, that an order to revive must be obtained before the hearing of the cause,</p> <p>A defendant in a bill of revivor cannot by answer prevent a revival of the suit, although he denies the right to revive.</p> <p>But although the defendant cannot by answer prevent an order for the revival of the suit, yet if the facts upon which the title to revive rests are denied by the answer, the complainant must establish the right to revive at the hearing, or he will eventually fail in the suit.</p>

The bill in this cause was filed to foreclose a mortgage given by two tenants in common of the mortgaged premises for a joint debt. Subsequent to the giving of the mortgage the owners of the equity of redemption made partition thereof between themselves, and each afterwards aliened different portions of the premises set off to him in severalty upon the partition.

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