text:
    Loomis vs. Stuyvesant and others.
    1843. December 5.
    Where the mortgagees named in two bonds and mortgages, assigned the bonds and mortgages, to a grantee of the mortgagor,' as valid and subsisting mortgages, in order to protect his title to the mortgaged premises against subsequent liens thereon, and at the timé of the assignment such mortgagee held judgments against the mortgagor, for the same debt for which their mortgages were given, recovered subsequent to the recording of such mortgages, but before the conveyance of the mortgaged premises to such grantee and assignee; Held, that the mortgagees and all persons claiming under them subsequent to éuch assignments, were estopped from alleging that the mortgages were not duly executed and accepted by the mortgagees named therein.

      Held also, that such judgments were not liens upon the equity of redemption in the mortgaged premises; and that the legal effect of the assignment of the mortgages, to secure the title of the assignee, was to prevent a sale of the mortgaged premises under the judgments, to satisfy the debts secured by the mortgages and also by the judgments.

      A judgment, which is recovered, or confessed, for a debt which is also secured by a mortgage upon real estate, is not a lien upon the mortgaged premises; nor can the equity of redemption of the judgment debtor, in the mortgaged premises, be sold under an execution upon such judgment.
    The purchaser of a judgment during the pendency of a foreclosure suit, from a defendant in the suit, is not -entitled to come in by petition and be made a party to the suit, under the provisions of the'act of 1840, to reduce . the expense of foreclosing mortgages in the court of chancery.
    The bill in this cause was filed in February, 1840, against P. Stuyvesant, G. Stuyvesant, J. R. Stuyvesant and others, to foreclose two mortgages, the one given by P. Stuyvesant to J. R. Stuyvesant on the 25th of June, 1839, and the other given by the same mortgagor to G. Stuyvesant on the 28th of the same month. The bill was taken as confessed against some of the defendants for the want of an appearance; against the defendant, G. Stuyvesant, upon his writen consent given on the 24th of August, 1840 ; and against J. R. Stuyvesant for want of an answer, after he had appeared. in the cause. A final decree, for the foreclosure and sale of the mortgaged premises, was made on the 3d of August, 1841.' On the 18th of the same month motions were made by the defendants, G. Stuyvesant and J. R. Stuyvesant, to open the orders taking the bill as confessed against them, and that they might come in and make a defence to the suit. But the motions were denied, on the ground that by their own showing they had assigned all their interest in the judgments which they formerly held against the mortgagor, and that they had no interest in, or lien upon, the mortgaged premises.
    The Greenwich Bank, thereupon, as the assignee, pendente lite, of a judgment in favor of J. R. Stuyvesant against the mortgagor and G. G. Root, recovered in July, 1839, for the same debt or a part of the same debt for ’which the mortgage to him was given, and which judgment was claimed to be. a lien upon the mortgaged premises, applied to the court for leave to be made a party to the suit and to defend the same. And a similar motion was made on the part of T. E. Davis, who had, in September, 1840, purchased a judgment, against the mortgagor, which was confessed in favor of the defendant, G. Stuyvesant, on the 7th of August, 1839, to secure the same debt for which the mortgage of the 28th of June, 1839, was given.

      L. R. Marsh, for the complainant.

      J. Rhoades & M. T. Reynolds, for the bank.

      E. H. Blatchford, for the motion of Davis.
   The Chancellor.

The question upon the merits of this case, independent of the objection that neither of the applicants has any right to apply in this way to be made parties, under the act of May, 1840, arises upon the effect of the mortgages and judgments, in connection with the proper construction of the stipulations signed by S. P. Lyman, as the agent for the complainant, on the 20th of September, 1839. The affidavit of Lyman, who transacted the business for the complainant, is positive as to what occurred at the time when the mortgages were assigned and the stipulations given. It must therefore control as against the information and belief of the applicants. And the legal effect of the whole transaction, in reference to facts which cannot be disputed by any one, must control in preference to the conflicting testimony as to what was intended to be the effect of the written instruments. The object of the assignment of these bonds and mortgages, to the complainant, was unquestionably to protect and secure the title to the mortgaged premises which P. Stuyvesant had then conveyed, or agreed to convey to him, in payment or part payment of a debt. It is stated in the affidavits, upon which this application is founded, that the mortgages were given without the knowledge or assent of the mortgagees. But the mortgagees having assigned the mortgages to the complainant, they and all persons claiming under them, subsequent to such assignment, are estopped from alleging that the mortgages were not accepted by them. And at the time when the assignments of the mortgages were made, no other persons than the assignors had any interest whatever in these judgments, under which the present applicants claim a lien upon the mortgaged premises.

Again, Lyman swears positively that the agent of the mortgagees, as well as the mortgagor, represented the mortgages as being good and valid, and in full force and effect, so far as the premises in question were concerned. He also says that the assignments thereof were received for the express purpose of cutting off all subsequent liens upon the premises. Having executed these assignments, therefore, and put them into the hands of their agent to be delivered to the complainant, in part fulfilment of the contract made with Lyman for him, it would be .enabling them to commit a gross fraud upon him to allow the assignors, or those claiming under them by a subsequent transfer of the judgments, to set up as a defence that the assignors of the mortgages did not assent to the giving of the mortgages; which were duly recorded at the time the judgments were recovered. For the purposes of this application it must therefore be considered that the mortgages were duly executed, and accepted by the mortgagees, previous to the docketing of the subsequent judgments. G. Stuyvesant makes no affidavit that he did not know of, and assent to,- the mortgage to him, at the time it was given ; nor is the affidavit of P. Stuyvesant, the mortgagor, produced, to show that the mortgages were made and put on record without the knowledge or assent of the mortgagees. Indeed it is wholly improbable that he gave the subsequent judgment to his brother, as a further security for the mortgage debt, without letting him know that it was already secured by the mortgage upon a part of his property.

A judgment recovered, or confessed, for a debt secured by a mortgage is not a lien upon the mortgaged premises. For the 31st section of the article of the revised statutes relative to executions against property, (2 R. S. 368,) declares that it shall not be lawful for the sheriff to sell the equity of redemption of the mortgagor, or of his heirs or assigns, in the mortgaged premises, by virtue of any execution upon such judgment. The legal effect of the assignment of these mortgages, therefore, even as a security of the complainant’s title, and reserving the full benefit of the judgments to the mortgagees, would be to prevent the holders of the judgments, respectively, from selling the, mortgaged premises to satisfy those judgments. No foreclosure would, therefore, be necessary, except for the purpose of perfecting the title to the lot which by mistake was not included in the deed of P. Stuyvesant to the complainant ; or to cut off the liens of other incumbrancers, intermediate the date of the mortgages and the recording of the deed to the complainant, other than the judgments for the same debts for which the mortgages respectively were given. And a construction of the written stipulations, given on the 20th of September, 1839, which would either make or leave those judgments a lien upon the mortgaged premises, as against the complainant, would be wholly inconsistent with the assignment of the mortgages for the security and protection of the title of the complainant.

But it was undoubtedly the intention of all parties, to leave to the assignors the full benefit of their judgments as against other property of the defendant in those judgments. And that benefit the assignees of the judgments will have, if the complainant is permitted to bid in the premises at a mere nominal amount, on the sale under the decree. If the premises, however, should be bid up to the full amount of the mortgages, the judgments might be extinguished, as to their liens upon other property of the defendant therein. That was a contingency which probably was not thought of by either party at the time the assignments of the mortgages were made. Still the complainant is entitled to" the full benefit of his assignments; and if there is no other way of protecting his rights, those who have succeeded to the rights of the original owners of the judgments must be subjected to that risk.

Probably the rights of all parties would be fully protected, so far as they have any rights, by a decree of strict foreclosure. If the defendants G. Stuyvesant and J. R. Stuyvesant and the assignees of these judgments consent to it, therefore, and serve a written stipulation to that effeet upon the complainant’s solicitor within twenty days after the delivery of this opinion to the register, the complainant is at liberty to vacate the decree entered in this cause, and to enter a decree of strict foreclosure ; declaring that the defendants in this suit, and each and every of them, and the assignees of the judgments of G. Stuyvesant against Peter Stuyvesant, and of J. R. Stuyvesant against Peter Stuyvesant and George G. Root, and all persons claiming under them, or either of them, subsequent to the commencement of this suit, be forever barred and foreclosed of any equity of redemption, interest, or claim, in or to, or any lien on the mortgaged premises in the complainant’s bill mentioned, or any part or parcel thereof. And in that case the applicants are to pay the complainant his costs of opposing these applications. The entry of any order upon these applications to be stayed for twenty days unless such stipulation is sooner given.

This suit was commenced long before the passage of the act of May, 1840, to reduce the expense of foreclosing mortgages in the court of chancery. And it does not appear that any notice of lis pendens was filed, after that act went into effect, so as to affect the rights of judgment creditors who were not made parties. Neither the Greenwich Bank, which has purchased from one of the defendants pendente lite, nor Davis who took the assignment of the G. Stuyvesant judgment in September, 1840, had therefore any right to come in and be made parties to this suit under the act of May, 1840 j even if they had applied to be made such parties before the final decree was entered. But if they had rights which it was necessary to protect, their proper course was to make themselves parties to the suit in the first place, by bill, according to the practice which existed before the statute ; (People’s Bank v. The Hamilton Manufacturing Company, ante, p. 481; Foster v. Deacon, Mad. & Geld. Rep. 59 ;) and after making themselves parties, by such bill, to apply to the court for such order as might be necessary, to protect their rights, if they had any rights which could thus be protected. If the stipulation, as above suggested, is not given, therefore, these motions must both be denied with costs. Even if such stipulation is given, as these applicants are not properly before the court as parties, and have no right at present to interfere with the suit, no compulsory order can be made upon the complainant to vacate his decree and enter the decree of strict foreclosure as above suggested. But in that case, if a proper bill should be filed by these applicants, the court might be able to make such an order, to stay the sale under the decree, as to prevent the complainant from unnecessarily and wantonly destroying the liens of their judgments upon other property than that which is contained in these mortgages. In case such stipulation is given, therefore, if the complainant refuses to vacate his decree of sale and take a decree of strict foreclosure, as above suggested, these applications must still be dismissed. But in that case the dismissal will be without costs, and without prejudice to the right of the Greenwich Bank and Davis, or either of them, to make themselves parties to this suit, by a proper bill for that purpose ; and to renew their application for such order and directions as may be meet in the case.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Bogert vs. Furman and others.
    1843. December 5.
    By the foreclosure of a mortgage and the sale of the mortgaged premises, under the decree of the court of chancery, the interests of the several owners of the equity of redemption is converted into personal estate, and if any of the owners subsequently die, their interests in the surplus moneys must be distributed as personal estate, among their legatees and next of kin.
    Where a person entitled to a portion of a fund in court had been dead more than twenty years, and had died under age, the court allowed the parties entitled as next of kin to the decedent to take the money out of court, without the expense of taking out letters of administration.
    An error apparent upon the face of a master’s report, in a matter of mere computation, may be corrected by the court, although no exceptions to the report have been filed.
    Where the decedent dies intestaté, leaving a mother and brothers and sisters, but no wife or children or descendants, and no father, the mother is entitled to an equal share of his personal estate with his brothers and sisters, and the children of a deceased brother, who take his share by representation. But if the mother be also dead, the whole will go to his brothers and sisters and the representatives of the deceased brother, to the exclusion of the grand parents and the uncles and aunts of the decedent.
    And where the. decedent dies intestate without leaving a wife or any issue, or a father or mother, or any brothers or sisters or maternal grand parents, but leaving a paternal grandmother surviving him, she is entitled to his whole personal estate, as his nearest of kin; to the exclusion of his uncles and aunts.
    This case came before the court upon the application of A. McCalla, to ascertain the rights and interests of himself and others in a fund in court, amounting to $2490, with the interest thereon from the death of the defendant, E. Furman the elder, who died on the 28th of October, 1842. The facts in the case, as ascertained by the report of Master Wheeler, were as follows : E. Furman the elder, widow of Josiah Furman the elder, was the grantee in fee of the mortgaged premises, at the time the decree of foreclosure in this cause was entered, in April, 1805, but in fact she was only entitled to dower in the equity of redemption. She held the residue in trust, one eighth thereof for each of her seven children, Josiah Furman the second, E. Fur-man the younger, Henry Furman, Jacob Furman, Joseph P. Furman, Richard Furman and Maria Furman, and one-sixteenth for each of her two grandchildren, George Furman the younger and Josiah Furman the third, the children of her deceased son George Furman the elder. The fund in question, one-third of the surplus proceeds of the sale of the mortgaged premises, was by an order of June, 1805, directed to be brought into court and invested, and the income thereof to be paid to E. Furman the widow, for life, and the principal to be distributed among the parties entitled thereto at her death. In June, 1808, E. Furman the younger died unmarried and intestate, and no administration was granted upon her estate. In 1812 Henry Furman and Joseph P. Furman also died unmarried and intestate, and no one administered on their estates ; but it did not appear which of them died first. And in 1813 Josiah Furman the second died unmarried and intestate, leaving his mother and his sister Maria, and his brothers Jacob and Richard, and the two children of his deceased brother George, surviving him. In August, 1815, Jacob Furman, supposing he was only entitled to a fifth of the fund in court, conveyed the one-fifth of the fund to his uncle R. Furman the elder, who died in 1834, and -administration on his estate was granted to E. R. Furman. The two grandchildren died previous to 1820, unmarried and intestate, and no administration was granted on their estates. But it did not appear which of them died first, although both of them survived their mother ; nor did it appear that they left any maternal grand parent. In March, 1820, R. Furman the younger assigned all his interest in the fund to Elias Baldwin, who died in 1825, and bequeathed his estate to his widow, who administered thereon, and afterwards sold her interest in the fund to G. E. Baldwin. In April, 1820, R. Furman the younger made another assignment of his interest in the fund to the petitioner McCalla; who subsequently purchased out the interest of G. E. Baldwin, pending the litigation between them, before the master, as to which of them was entitled to R. Furman the younger’s interest in the fund. Maria Furman, who married Mr. Francis, survived him and died in 1843, and her son G. W. Francis administered upon her estate. E. Furman the elder died before Mrs. Francis, and by her will bequeathed to the latter all her property, and appointed her executrix. But Mrs. Francis died without having proved the will, and administration with the will annexed was subsequently granted to G. W. Francis.
    By an order of reference, made upon the ex parte petition of McCalla, the master was directed to enquire and report who were entitled to the fund, and to give notice to all persons interested therein, by a publication in the public papers; and to report an abstract of the titles of the several persons interested in the fund to such fund, or to any part thereof, shewing the times when any persons interested therein had died, and who were their respective legatees, distributees, or next of kin at the times of their deaths respectively ; to the end that upon the coming in and confirmation of his report the court might make such order in relation to the payment of the fund to the persons entitled thereto as should be just.

      J. A. Bayard, for the petitioner McCalla.

      A. Taber, for E. R. Furman,
    administratrix of R. Fur-man the elder, and for G. W. Francis, administrator of Maria Francis, and administrator with the will annexed of Elizabeth Furman the elder.
   The Chancellor.

By the foreclosure of the mortgage the equitable interests of the children and grandchildren of Elizabeth Furman the elder, in the equity of redemption of the mortgaged premises,were converted into personal estate. And the fund must be distributed, as such, among the legatees and next of kin of the several parties who from time to time became entitled to the same. The personal representatives of the several deceased parties are the proper persons to receive their shares and distribute them among the next of kin after the payment of their debts, if they owed any. But as all the deceased children, and grandchildren, whose personal representatives are not before the court, died intestate more than twenty years since, and probably under age and out of debt, it would be a useless expense to require those who have succeeded to their rights, under the statute of distributions, to take out letters of administration upon their respective estates at this remote period of time.

The master has ascertained the facts substantially as directed by the order. But he has erred in attempting to apportion the fund among the several persons who are interested .therein. For he appears to have proceeded in that respect upon the supposition that the fund in question was to be considered and treated as real estate, and to-pass according to the law of descents, and that Elizabeth Furman the elder was not entitled to any part of the personal property of her children, and grandchildren, who died intestate and without issue in her lifetime. As the order of reference, however, did not direct him to apportion the fund, but merely to ascertain who were interested therein, and to report the facts," the court can make the proper order for distribution. For it is a mere matter of computation, upon the facts stated in the report. And where there is an error apparent upon the face of the report, in a matter of mere computation, it may be corrected by the court, although no exceptions have been filed. (Hawkins v. Day, 1 Ves. sen. 189. White’s ex’rs v. Johnson, 2 Munf. Rep. 285. 1 Barb. Ch. Pr. 557.)

1 have before said that the fund in question was personal estate, from the time of the sale under the decree in 1805. And upon the death of Elizabeth Furman the younger, in 1808, without issue, her mother became entitled to a distributive share in her portion of the fund, in common with her six surviving brothers and sister, and the two children of G. Furman who took by representation the share which their father would have been entitled to if he had then been living. (1 R. L. of 813, p. 314, § 16.) So upon the death of each of the widow’s three sons, who died in 1812 and 1813, she not only became entitled to a distributive share of their original shares of the fund, but also of the shares which belonged to them respectively as next of kin of their sister and of their brothers who had previously died without issue. The rights of the widow and of her three surviving children and of her two grandchildren in the fund, in August, 1815, were therefore as follows : Jacob was entitled to his original eighth, and to one-fifth of four-eighths which came to him as one of the next of kin of his brothers and sister who had died subsequent to 1805 without issue. His whole interest in the fund was therefore nine-fortieths, instead of one-fifth. Richard and Maria were each entitled to an interest in the fund to the same extent at that time; and the two grandchildren together were entitled to nine-fortieths of the fund. And Elizabeth Furman the elder was entitled to one-fifth of four-eighths of the fund, as one of the next of kin of her four deceased children ; thus making up the remaining four-fortieths of the whole fund. Jacob only conveyed one-fifth, or eight-fortieths, of the fund to his uncle $• and the remaining one-fortieth still belongs to him if he is living. But tvliether he is living or dead is not stated in the master’s report.

Upon the death of the first of the two children of George Furman, in the lifetime of the grandmother and after the death of their mother, the whole of the interest of the deceased child in the fund went to his surviving brother, to the exclusion of his uncles and aunt and of his grandmother. (Evelyn v. Evelyn, Amb. Rep. 191.) But upon the death of the surviving child of George, intestate and without issue, leaving no maternal grand parents, his whole interest in the fund went to his paternal grandmother, Elizabeth Furman the elder, to the exclusion of his uncles and aunt. This is the settled law under the statute of distributions. For in the case of Blackborough v. Davis, (1 Peer Wms. R. 41,) which came before the court of king’s bench in 1701, upon an application for a mandamus to the spiritual court to grant administration to the aunt of the intestate, it was decided that the grandmother was nearer of kin to the decedent than the aunt; and that she was entitled to administration and to the personal estate to the exclusion of such aunt. And this decision was followed by the court of chancery in the cases of Woodroff v. Wickworth, (Prec. in Ch. 527,) and of Mentney v. Petty, (Idem, 593.) By the death of her two grandchildren, therefore, Elizabeth Furman the elder became the owner of nine-fortieths of the estate, in addition to the four-fortieths to which she was entitled, in August, 1815 ; the whole of thirteen-fortieths which was bequeathed to Maria Francis by the will of her mother.

G. W. Francis, therefore, as the administrator of his mother, and the administrator of the will annexed of his grandmother, is entitled to the interest of the whole fund up to the time of the death of Elizabeth Furman the elder, on the 28th of October, 1842, and to twenty-two fortieths oí the capital of the fund, and of the interest thereon since that time. McCalla, as the assignee of the interest of Richard Furman the younger, is entitled to nine-fortieths ; E. R. Furman, as administratrix of Richard Furman the elder, who was the assignee of Jacob Furman of one-fifth of the fund, is entitled to eight-fortieths. And the' remaining one-fortieth belongs to Jacob if living, or to his personal representatives if he is dead, to be distributed among his legatees or next of kin. The costs of the petition, and of McCalla, and of E, R. Furman, and of G. W. Furman and his mother, upon the reference, and on this application, except so much of the costs as have been produced by the litigation between McCalla and other claimants of the share of Richard Furman the younger, must be taxed and paid out of the fund. And the residue of the fund must be paid to the several parties interested therein in the proportions above mentioned. The interest which had accrued previous to the death of Elizabeth Furman the elder must also be paid to G. W. Furman, as her administrator with the will annexed.

The moneys due upon the bond and mortgage must be called in by the assistant register and distributed, as well as the moneys in the trust company, unless some of the parties interested choose to take an assignment of the bond and mortgage, and to pay the amount due thereon beyond their shares. And if the share of Jacob Furman in the fund is not called for by him, or his personal representatives, within six months after the making of the order upon this decision, the assistant register is to be directed, in the order, to deposit it in the trust company, to accumulate until the further order of this court.


author: The Chancellor

text:
    New vs. Bame.
    1843. December 6.
    In an ordinary creditor’s bill, the denial of the defendant, in his answer, that he has any property or chases in action, or any interest in property, is not sufficient to entitle him to a dissolution of the injunction restraining him from assigning or disposing of his property.
    This was an application to dissolve the injunction granted upon an ordinary creditor’s bill, against the judgment debtor, upon the answer of the defendant denying that he had any property, or an interest in any property, or choses in action, whatever.

      H. Miller, for the complainant.

      E. Newton, for the defendant.
   The Chancellor

said the denial of property, by the answer of the defendant, was not such a denial of the whole equity of the bill as entitled him to a dissolution of the injunction which restrained him from disposing of his property j that if he had no property which could be affected by the injunction, the retaining of that process could not possibly injure him ; and that if he had property,’notwithstanding the denial in the answer, it was of importance to the complainant to retain the injunction, to protect such property from being disposed of by the defendant.

Motion to dissolve the injunction denied.


text:
    McKinstry and another, adm’rs, vs. Curtis.
    1844. January 2.'
    Where the equity of redemption in mortgaged ’premises is sold under a judgment, or under a junior mortgage, which judgment or mortgage is a lien upon the equity of redemption merely, the legal presumption is that the purchaser only bids to the value of the equity of redemption. And the land thus purchased is, in equity, the primary fund to pay the amount due upon the prior bond and mortgage. Such purchaser is not therefore entitled to an assignment of the prior mortgage, to enable him to collect it out of the property of the mortgagor.
    This was an application to dissolve an injunction restraining the defendant from proceeding to foreclose a mortgage under the statute. The intestate of the complainants took a second mortgage upon the premises, for a debt due from the mortgagor, but without personal liability on the part of the mortgagor for the debt. The complainants foreclosed that mortgage without making the holder of the prior mortgage a party, and bid in the property. They thereupon insisted that the holder of the prior mortgage should resort to the personal liability of the mortgagor, upon his bond given with the first mortgage, instead of proceeding against the mortgaged premises; or that the prior mortgagee should assign such bond and mortgage to them, upon being paid the amount thereof, to enable them to collect the same from the mortgagor.

      K. Miller, for the complainants.

      M. T. Reynolds, for the defendant.
   The Chancellor

decided, that where the equity of redemption in mortgaged premises is sold under a judgment, or under a junior mortgage, which judgment or mortgage is a lien upon the equity of redemption merely, the legal presumption is that the purchaser only bids to the value of such equity of redemption; and that the land thus purchased is in equity the primary fund to pay the amount due upon the prior bond and mortgage. He said it would therefore be inequitable for the holder of the prior bond and mortgage, in this case, to assign the same to the complainants, to enable them to collect the amount thereof out of the property of the mortgagor, by a suit upon the bond, under the circumstances stated in their bill.

Injunction dissolved.

       See Tice v. Annin, (2 John. Ch. Rep. 125;) and Heyer v. Pruyn, (7 Paige's Rep. 465.)


text:
    Bodine and others vs. Edwards and others.
    1844. January 3.
    An allegation, in a creditor’s bill, that the lands therein described are held by two of the defendants, the daughters of the judgment debtor, in trust for him, will not be sustained by showing that the debtor purchased the lands with his own funds, and took the deed thereof in the name of the daughters, as an absolute gift to them, and that the complainants’ debt was contracted previous thereto, and that the debtor was insolvent at the time of such purchase. •
    But to reach the lands in the hands of the daughters, in such a case, the complainants must state, in their bill, the facts which will render the transaction fraudulent, as against the creditors of the judgment debtor, so as to raise a trust in favor of such creditors under the fifty second section of the article of the revised statutes relative to uses and trusts.
    The revised statutes have put an end to resulting trusts arising from the' payment "of the purchase money by one person, and taking a conveyance of the land purchased in the name of another, so far as relates to any trust in favor of the person who voluntarily pays the consideration for such a conveyance.
    This was an application by the complainants for the appointment of a receiver, as to certain property alleged to be holden by the two daughters of the defendant, O. Edwards, in trust for him. The affidavits showed that the property was not holden in trust for him, but that it was purchased with his funds, and that the title was taken in the names of his two daughters as an absolute gift to them.

      R. W. Townsend, for the complainants.

      C. De Witt, for the defendants.
   The Chancellor.

The revised statutes have put an end to resulting trusts, arising from the payment of the purchase money by one person and taking the conveyance in the name of another, so far as relates to any trust in favor of the person who voluntarily pays the consideration for such a conveyance. The allegation in this bill that the daughters hold the property in question in trust for their father cannot be sustained, even by showing that the complainants’ debt was contracted before this conveyance to the daughters was made, and that the father was then insolvent; as that would not raise a trust in his favor. To reach the property in the hands of the daughters, it is necessary to charge in the bill the circumstances which would render the transaction fraudulent as against the creditors of the father; so as to raise a trust in favor of such creditors, under the fifty-second section of the article of the revised statutes relative to uses and trusts. (1 R. S. 728.) The whole equity of this bill, so far as relates to the daughters, is denied by their affidavit. The motion for a receiver as to them must therefore be denied; but without prejudice to the right of the complainants to renew their application upon an amended bill.


text:
    The Atlantic Insurance Company vs. Lemar.
    Where a demurrer was put in to the whole bill, and the cause was then referred to the assistant vice chancellor of the first circuit, who overruled the demurrer and gave the defendant six months’ time to put in his answer, and the decretal order was entered with the clerk of the first circuit; and the complainant afterwards appealed from so much of the order as allowed six months to answer; and the chancellor on the appeal modified that part of the order, so as to require the defendant to answer within the usual time, with liberty to apply for an extension of the time; Held, that the reference of the demurrer carried with it the whole case ; and that the or. der overruling the demurrer and directing the defendant to answer, being entered with the clerk of the first circuit, where the assistant vice chancel-' lor held his court when the order was made, all subsequent proceedings thereon must be had before the vice chancellor of that circuit; in the same manner as if the cause had been referred to such vice chancellor, and had been decided by him.
    1844. January 4.

      Held further, that the appeal, from a part only of the order of the assistant vice chancellor, did'not remove the whole cause from before the vice chancellor of the first circuit; and that the proceedings upon the appeal must be remitted to him, and the application to extend the time to answer must be made to such vice chancellor.
    This was an application to the chancellor to extend the time for the defendant to put in his answer. The bill was originally filed before the chancellor, and the defendant put in a demurrer to the whole bill. The case was then referred to the assistant vice chancellor of the first circuit, to be heard and decided. The assistant vice chancellor overruled the demurrer, and gave the defendant six months to answer the bill. The decretal order of the assistant vice chancellor was entered with the clerk of the first circuit, according to the directions of the statute. {Laws of 1840, p. 263, ^ 3.) The complainants afterwards appealed from so much of the decretal order as allowed six months to answer, and the chancellor directed the order to be so modified as to require the defendant to answer within the usual. time, with liberty to him to apply to extend the time upon due notice to the complainants’ solicitor. {Ante, p. 385.)

      C. B. Moore, for the complainant.

      E. Sandford, for the defendant.
   The Chancellor

said, the reference of the demurrer to the whole bill to the assistant vice chancellor carried with it the whole case; and that if the demurrer had been allowed and the bill dismissed, the decree should have been enrolled and signed by the vice chancellor of the circuit where the cause was heard ; that the fifth and sixth sections of the act of March, 1839, authorizing the appointment of the assistant vice chancellor, were extended to this case by the amendatory act of 1840; and that the order, overruling the demurrer and directing the defendant to answer, being entered with the clerk of the first circuit, where the assistant vice chancellor held his court when the order was made, all subsequent proceedings thereon must be had before the vice chancellor of that circuit j in the same manner as if the cause had been referred to such vice chancellor and had been heard and decided by him. The chancellor also held that the appeal from a part of the order of the assistant vice chancellor did not remove the whole cause from before the vice chancellor of the first circuit; that the proceedings upon that appeal must therefore be remitted to such vice chancellor, and that this application, to extend the time to answer, must be made to him.

Order to remit the proceedings, and to refer the motion to the vice chancellor, to be heard and determined, accordingly.


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    The New-York Life Insurance and Trust Company vs. Davis and others.
    In a foreclosure suit the register or clerk is required to charge and receive from the solicitor of the complainant, for the benefit of the state, the fees for services which are performed before it is ascertained whether a defence is to be made in such suit, at the rates which are prescribed by the fee bill in other cases. But for services performed after the bill has been taken as confessed, or after the defendant has put in an answer which sets up no defence, no other fees are to be received, or charged, than such'as are prescribed in the act of May, 1840, to reduce the expense of foreclosing mortgages in the court of chancery.
    The register or clerk is not entitled to charge a fee for entering the bill, or for entering a memorandum of any order or decree in the register or minutes of causes, or for filing the draft of an order or decree which is to be entered by him.
    The defendant in a suit, prima facie, is not chargeable with the expense of an amendment to the complainant’s bill. And to entitle the complainant to charge it against the defendant, upon taxation, it should be shown to the satisfaction of the taxing officer that the necessity of the amendment did not arise from the fault or negligence of the complainant’s solicitor.
    Where the solicitor is entitled to a gross sum for his costs, in a foreclosure suit, in addition to his disbursements, he is not entitled to charge the expense of serving subpoenas as a disbursement

      1844. January 16.
    Wherever the solicitor is allowed, by law, a specified sum for the performance of any service in a cause, he cannot be allowed any thing as a disbursement for such service, although he employs and pays some other person an extra compensation for its performance.
    In mortgage cases, where there is no defence, the'complainant’s solicitor is not entitled to charge, as disbursements, for serving subpoenas, notices, &c. in addition to the specified allowance to him, for all his services in the suit, as fixed by the act of May, 1841. N or is he entitled to charge for disbursements paid to counsel in the suit.
    Where papers are sent by express, instead of being transmitted by mail, the amount actually paid by the solicitor upon such transmission, but not exceeding the ordinary postage thereon, may be taxed as a disbursement in the suit.

      The master is only entitled to twelve cents for signing a summons, and he is not entitled to an attendance fee thereon. Nor is the master entitled to charge for the draft or copy of the underwriting of a summons, upon a reference.
    Upon an ex parte reference to compute the amount due upon the bond and mortgage in a foreclosure suit, the master is not entitled to a fee for attending and adjourning the reference, where it is not necessary to take testimony upon such reference. Nor is he entitled to an attendance fee in such a case, in addition to the specific allowance of one dollar for taking an account of the amount due upon the bond and mortgage.
    But where any of the defendants have appeared in the suit, so as to entitle them to a summons to attend upon the reference, or where the master is directed to take proofs of the facts stated in the bill, or as to the situation of the mortgaged premises and the necessity of selling in parcels, the master is entitled to an attendance fee.
    Where any of the defendants attend before a master upon a reference, so as to entitle them to a summons to attend the settlement of the draft of the report, and a further time is assigned by the master to settle the draft, the master' is entitled to an attendance fee upon the settlement of such draft of the report, of one dollar if he settles it ex parte, and three dollars if the defendants appear and litigate the settlement.
    It seems that the court may dispense with the service of an order nisi to appoint a guardian ad litem for an infant defendant, and may make an absolute order for such appointment, where a notice is also served at the time of the service of the subpoena upon the infant, that an application for such an order will be made to the court, in case the infant or his friends shall neglect to apply and have a guardian ad litem appointed within twenty days after the time for his appearance, as specified in the subpoena.
    This was an application by the defendants for the re-taxation of costs, in a foreclosure suit. The bill was filed, to foreclose a mortgage, against twenty-one defendants, some of whom were infants. The bill was taken as confessed against all the defendants except the infants; who put in the usual general answer, by their guardian ad litem. The taxing officer, in addition to $77,50, for the solicitor’s fees, as fixed by the act of May, 1841, allowed $62,97, for master’s fees upon the reference, and for register’s fees, and other disbursements.
    J. Rhoades, for the complainants.

      E. F. Smith, for the infant defendants.
   The Chancellor.

The first class of charges which are objected to in this case are the disbursements for register’s fees for filing the bill, and for other services performed by the register, according to the fee bill of May, 1839, previous to the putting in of the answer of the infant defendants. The act of May, 1840, provides that where a bill of foreclosure shall be taken as confessed, or when the answer put in shall not deny any material matter set forth in the bill, nor the right of the complainant to a decree of foreclosure, &c. the several officers named in the act, instead of the fees for their services theretofore allowed, shall receive for their services the compensation therein mentioned ; and that no other fees whatever shall be taxed or decreed against the defendant. The act, after fixing a tariff of solicitor’s and master’s fees in such cases, and prohibiting the allowance of counsel fees, specifies four items of register’s or clerk’s fees; and declares that every other service required of the register, assistant register or clerks, shall be performed without fee or reward. But this act leaves unrepealed the act of 1839, relative to the fees of the register and clerks in chancery which are to be received for the benefit of the state ; except so far as the act of May, 1840, is necessarily in conflict with its provisions. The act of 1839 directs certain fees to be received from or charged to the solicitors, for register’s or clerk’s fees, in foreclosure suits as well as other suits. And, by the 9th section of the act, the register, assistant register, or clerk is bound to require payment in hand for all services rendered officially for any persons other than solicitors who have agents residing at the place where the office is located. (Laws of 1839, p. 361.) That act also requires accounts to be kept, not only of the fees actually received, but of all fees, perquisites, and emoluments which the register, assistant register, or clerk shall be entitled to demand and receive from any person, for any service rendered by them in their official capacity, pursuant to law. And the moneys so received they are required to deposit in bank, to the credit of the state treasurer, and transmit their accounts, of the fees paid and unpaid, to the comptroller, periodically. It is impossible, at the commencement of a foreclosure suit, to ascertain whether it will or will not be defended and contested by plea, answer, or demurrer. Until therefore all the defendants have answered, or the bill has been taken as confessed against them, the register, assistant register-, or clerk is bound to demand and receive from the solicitor, for the use of the state, the fees for services performed by them officially, at and after the rate prescribed in the fee bill of 1839. And no provision is made by law for refunding such fees to the solicitor, by the state, or for deducting them from the accounts rendered against him, in casé the defendants after-wards suffer the bill in the foreclosure suit to be taken as confessed, or if they put in an answer which does not contest the complainant’s right to a decree of foreclosure. The only rational construction, therefore, which can be put upon the acts of 1839 and 1840, when taken together, is to construe the provisions of the latter, so far as relates to such fees, as only applicable to services performed by the register, assistant register or clerk, after it is ascertained that the suit will not be defended; and to allow to the solicitor, as a necessary disbursement in the suit, the. fees which he has been compelled to pay for services performed before that time, according to the fee bill of 1839.

The register’s fee for filing the bill, sealing the subpoenas, entering the order for the absentee to appear, entering the order nisi for the appointment of guardian ad litem, copy of the order and filing three affidavits, and for entering the order that infants answer the bill, were properly allowed, as necessary disbursements paid by the solicitor. But the allowance of eight cents for entering the bill, ought not to have been allowed j as no such item .is found in the act of May 1839. The allowance, by the folio, for entering any order, decree, or proceeding in the minutes, was intended to cover proceedings which were copied into the register’s minutes of decree sand orders—such as the proof of wills, &c.—and does not apply to the mere memorandum entered in the register or minutes of causes, for which entry no compensation is given by that act. And if the register, assistant register and clerks are in the habit of making such a charge, it must be discontinued. Nor should the fee to the register for filing the draft of orders, to be entered by him, be allowed. Such drafts are delivered to him to be entered in the minutes, but are not to be considered as filed papers.

The fee for filing the amendment to the bill was not properly chargeable against the defendant, without a special affidavit showing that the necessity for such amendment did not arise from the fault or negligence of the complainant’s solicitor, and explaining why such amendment became necessary. Prima facie an amendment of the bill is not taxable as against the defendant. For the same reason the clerk’s fees for the third search, and for filing the second notice of the pendency of the suit, should have been disallowed. But the charge for the second search, after the filing of the bill, to ascertain whether any new incumbrances had been created between the time of the first search and the filing of the notice of the pendency of the suit, if the search was actually made and paid for, was properly allowed as a disbursement in the cause. For the making of such an additional search was a reasonable and proper precaution, where, from the distance from the place of the solicitor’s residence to the clerk’s office, the bill and notice of lis pendens could not be filed immediately after the first search.

The charge of $19,62, for serving the subpoenas upon the defendants, cannot be charged as a disbursement. A specific allowance was made to the solicitor for the service of the subpoena upon each defendant, in the act of 1840 to reduce the expense of foreclosing mortgages in the court of chancery, as well as in the general fee bill in the revised statutes. And the allowance to the solicitor of a specific sum, in foreclosure suits where there is no defence, by the act of May, 1841, was intended as a substitute for and to cover all the solicitor’s fees in the cause. The $2,50 allowed by that act, for each defendant in the suit beyond two, was intended to.compensate the solicitor, among other things, for the expense of serving the subpoenas on the additional defendants. And this court has repeatedly decided that where a specific allowance is made to the solicitor, for the performance of any service in a suit, he cannot be allowed for such service as a disbursement, although he employs and pays some other person an extra compensation for the performance of such service. (See 2 Barb. Ch. Pr. 344, and the cases there referred, to.) This charge must therefore be disallowed. For the same reason the charge of $4,62 for serving on the infants the copies of the order nisi to appoint a guardian ad litem, and of one dollar for serving the order on such guardian, must be disallowed ; as the fee bill makes a specific allowance of twenty-five cents, to the solicitor, for serving every rule or order. This is a very inadequate compensation for the service of an order in such a case. But it is not in the power of the taxing officers, or of the court, to change the law in relation to the solicitor’s compensation. The cpurt perhaps may dispense with the necessity of serving an order nisi in such a case, and may make an absolute order for the appointment of a guardian ad litem for the infant, where the solicitor, at the time of the service of the subpoena, also serves a notice that he will' apply for such an absolute order, in case the infant shall neglect to have a guardian ad litem appointed within twenty days after the time for his appearance specified in the subpoena.

The act of May, 1840, having expressly prohibited the. allowance of any counsel fees in foreclosure suits, where there is no defence, it is a direct and palpable violation of the declared will of the legislature to allow for the services of counsel in such cases, under the name of disbursements. The two charges of $3,00, paid to counsel for moving for an order to advertise for nonresident defendants, and for the order for the appointment of a guardian ad litem for the infant defendants, were therefore, improperly allowed by the taxing officer.

The allowance to the master of one dollar, for attendance to sign the summons, was improperly allowed, as no such item is found in the bill of master’s fees. The twelve cents for signing the summons is all the master is entitled to charge. The second item in the bill of master’s fees is for attending upon the return of the summons and adjourning the hearing to some future day, upon some reasonable cause. This can seldom be necessary in a reference to compute the amount due upon a mortgage. And the charge should not be allowed, where none of the defendants have appeared, unless in a case where it is necessary for the complainant to produce testimony upon the reference, in a mortgage case, as to the rights of nonresident defendants, or as to the propriety of selling the whole mortgaged premises. The thirty cents, for drawing and copy of the underwriting upon the summons, should also have been disallowed. No provision for such a charge is made in the master’s fee bill. The underwriting, as well as the drawing of the summons, belongs to the duties of the solicitor i and when it is done it should be computed as a part of the summons itself. And in this case the allowance for both is included in the specific, sum to which the solicitor is entitled for all his services in the foreclosure suit, by the act of May, 1841.

The charge of the master for attendance upon the reference, in addition to the specific allowance in the fee bill for computing the amount due upon the bond and mortgage, was proper in this case. For the guardian ad litem of the infants was summoned to attend upon the reference ; and the master was required to examine and report upon the rights of the infant defendants, as well as to take proof of the truth of the allegations in the complainants’ bill in reference to the rights of defendants who were proceeded against as absentees. But upon an exparte reference, merely to compute the amount due upon the bond and mortgage, where none of the defendants have appeared in the cause so as to entitle them to a summons to attend before the master, where the whole amount secured by the bond and mortgage has become due, and where no inquiry is to be made as to the rights of absentees, the master is not entitled to an attendance fee. And the specific allowance in the fee bill, of one dollar for taking an account of what is due upon each bond and mortgage, together with the charges for drawing and engrossing his report and schedules, and for a copy thereof for the complainant’s solicitor, and for marking each bond and mortgage produced before him on the reference, is all that the master is entitled to in such a case.

There is nothing before me to show that the master’s charge of one dollar for attending to settle his report was improperly allowed. If the guardian ad litem attended before the master, upon the return of the summons, to protect the rights of the infant, he was entitled to a copy of the draft of the report, and to the service of a summons to attend the settling of the report; and be had the right to bring in bis objections to the report upon the return of such summons. In such a case the master is entitled to one dollar for attending to settle the draft of the report, if he proceeds ex parte, and three dollars if both parties appear and litigate the same. As the master has charged for attending to settle the draft of his report, and the solicitor swears that this disbursement was actually and necessarily paid, the taxing officer, in the absence of any proof to the contrary, was bound to presume the guardian ad litem of the infant defendants attended before the master, upon the reference, on the return of the first summons, and was duly summoned to attend the master at the subsequent time assigned for settling the draft of the report, or that he agreed to waive the service of a summons to attend at the time and place so assigned by the master.

The aggregate of the disbursements which were improperly allowed by the taxing officer, is $34,65. This amount must be deducted from the complainant’s costs as taxed, and the balance only must be paid to the solicitor. And as the guardian ad litem of the infant defendants has succeeded as to about seven-eighths of the amount of disbursements objected to by him, he must be allowed $8 for his costs upon this application, to be paid by the complainants.


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    Didier vs. Davison.
    A defendant in a suit in chancery cannot put in several distinct defences, by pica, to the whole of the complainant’s bill, or to the same part of the bill, without the special leave of the court. Nor can he set up two distinct de. fences in the same plea without rendering such plea bad for duplicity.
    The statute authorizing the defendant in any action to plead as many several matters as he shall think necessary for his defence, does not apply to suits in the court of chancery.
    The word “ action,” when used in the revised statutes, refers to a proceeding in a court of law. But where the word “ suit” is used by the revisers, in reference to a legal proceeding, the statute may apply to a proceeding either at law or in equity, unless there is something in the context to confine the operation of the statutory provision to suits in a particular court.
    Where great inconvenience will result to the defendant in a suit in chancery by compelling him to answer the complainant’s bill, the court, upon special application, may give him permission to plead two separate pleas in bar.
    But the court will not allow a defendant to plead double, upon an affidavit merely showing that he has several defences of which he might avail himself by plea, if permitted to do so.
    The general rule of the court of chancery is, that if a defendant wishes to set up more than one defence to the complainant’s bill, he must do it by answer ; and to justify the court in departing from this general rule, the defendant must make out a very special case of hardship and inconvenience to him if he should be required to make his several defences by answer.
    The cases in which the court allows the defendant to make several defences by pleas, to the complainant’s bill, are those in which the making the defences by answer would render it necessary for the defendant to set out very long accounts, or where the discovery sought by the bill would be productive of injury to the defendant in his business, or otherwise.

      1844. January 16.
    This was an application on the part of the defendant for leave to plead double. The motion was founded upon an affidavit of the defendant that the bill was filed to recover a debt alleged to have been contracted in Baltimore, in 1815, and to have arisen out of certain commercial transactions, moneys advanced, and bills of exchange drawn and protested, during the year 1815 j and that the bill contained an allegation that the complainant had not been able to prosecute his claim by reason of the continued absence of the defendant from this state. The defendant further stated, in his affidavit, that he came to the city of New-York, with his family, to reside, in March, 1834, and continued there until September, 1835, and that during such residence he made the usual declaration in court of his intention of becoming a citizen of the United States, according to the requirement of the naturalization law ; and that, as the defendant was informed and believed, the complainant and his deceased partner, after the alleged indebtedness accrued to them, made an assignment of all their property and effects, under the insolvent law of Maryland, to G. Winchester as trustee for their creditors. The counsel for the defendant thereupon asked for an order allowing him to plead the statute of limitations, and also to plead such assignment of the complainant and his deceased copartner, as separate pleas in bar of this suit.

      C. B. Moore, for the complainant.

      J. Rhoades, for the defendant.
   The Chancellor.

In Wyatt’s Practical Register, and some other elementary treatises, it is said several matters in bar may be pleaded together. But it is very doubtful whether double pleading was ever allowed in chancery without the special leave of the court. And the statute authorizing the defendant in any action to plead as many matters as he shall think necessary for his defence does not apply to suits in this court. The word u action,” when used in the revised statutes, is intended to designate a proceeding in a court of law. But when the word “ suit" is used in reference to legal proceedings, by the revisers, the statute may apply to a proceeding either at law or in equity, unless there is something in the context to confine the operation of the statutory provision to suits in a particular court. It is well settled that neither in this court nor in a court of law can the defendant plead two distinct defences in one plea, without rendering such plea bad for duplicity. The rules of pleading, on that subject, are substantially the same in this court and in courts of law. (Welf. Eq. Pl. 292. Lube, 263. Coke’s Litt. 304, a. Euer’s Syst. of Pl., ch. 36. Story’s Eq. Pl. 498. Rhode Island v. Massachusetts, 14 Peters’ Rep. 211. Bogardus v. Trinity Church, 4 Paige’s Rep. 178.)

In courts of law, however, the defendant is permitted to put in separate defences, by several distinct and independent pleas, as a matter of course; subject to the right of the plaintiff to apply to have some of them stricken out, where they are inconsistent with each other. But in this court thé defendant cannot put in several separate and independent defences, by plea, to the whole bill, or to the same part of the bill, without the special leave of the court first obtained. Indeed, until the case of Gibson v. Whitehead, (4 Mad. Rep. 241,) where Sir John Leach permitted two pleas to be filed, it was not supposed to be admissible to plead two or more pleas in bar in this court under any circumstances. And Mr. Willis considered that as an unauthorized departure from what was previously supposed to be the established rule. (Will. Eq. Pl. 493.) Lord Brougham, also, in a subsequent case in the house of lords, said it was contrary to the established rule of pleading, and that it had been overruled. (See Harland v. Emerson, 8 Bligh’s Rep. N. S. 85.) It appears to have been followed, however, by Sir Launcelot Shad well, in the case of Hardman v. Ellames, (5 Sim. Rep. 645,) and by Lord Langdale in the more recent case of Kay v. Marshall, (1 Keen’s Rep. 190,) notwithstanding what was said by Lord Brougham two years before. And a very late writer on the subject of equity pleading, in England, considers it as now settled there, that where great inconvenience would result to the defendant by compelling him to answer the complainant’s bill, the court, upon a special application, may give him permission to plead two separate pleas in bar. (Welf. Eq. Pl. 293. See also Story’s Eq. Pl. 501, § 657; Van Hook v. Whitlock, 3 Paige’s Rep. 419; and Saltus v. Tobias, 7 John. Ch. Rep. 214.)

Although this court has the power to allow the defendant to plead two or more pleas in bar, it is not a matter of course to allow it to be done, upon an affidavit merely showing that the defendant believes he has several defences, of which he might avail himself by plea if permitted to do so. The general rule is, that where a defendant, in this court, wishes to set up more than one defence to the complainant’s bill, he must do it by answer. And he must make out a very special case of hardship, and inconvenience, to justify the court in departing from the general rule. The cases which would appear to justify a departure from the usual course of proceeding are, where the making of the defences by answer, instead of pleas, would render it necessary for the defendant to set out very long accounts in his answer ; or where the discovery of matters sought for by the bill might be productive of great injury to the defendant, in his business or otherwise, if he were required to put in a full answer.

In the present case there is nothing to take the case out of the general rule. The defendant’s application is therefore denied.


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    The Merchants and Mechanics’ Bank vs. Griffith.
    1844. January 16.
    Where a creditor’s bill is founded upon a judgment in the supreme court, the complainant must show affirmatively, in his bill, that he has exhausted his remedy at law, by the issuing of an execution to the sheriff of the county where the defendant resided at the time such execution was issued; or he must show a sufficient and legal excuse for not issuing his execution to such county.
    Whether a positive averment in the bill that the defendant has no real or personal estate whatever, in the county where he resides, which is liable to a levy and sale by execution, would be a sufficient legal excuse to authorize the filing of a creditor’s bill upon the return of an execution issued to another county; Quare ? „

    Where the defendant has any property in the county where he resides, though not of the value of $100, the plaintiff must issue an execution to that county, and thus exhaust his remedy at law against such property, before he can file a creditor’s bill founded upon a judgment in the supreme court.
    This was an application to vacate an order appointing a receiver in this cause upon a creditor’s bill. The defendant’s counsel was attending in court to oppose the motion for a receiver the whole of the day for which the usual notice of the motion to appoint the receiver was given. But the complainant’s counsel, who was not aware of the intended opposition to the motion, obtained the usual order of reference, by default, unobserved by the defendant’s counsel. The judgment against the defendant was recovered in the supreme court, and the execution thereon was issued to the sheriff of the county of Rensselaer, where the defendant had formerly resided, and where, as charged in the bill, he resided at the time of issuing the execution. But the affidavit of the defendant stated that he removed to the city of Brooklyn, with his family, nearly two months previous to that time ; and that he was a householder there then, and had been such ever since. In this he was also supported by the affidavit of his solicitor ; who swore that he knew that the defendant had been a resident and householder in Brooklyn six or seven weeks, before the time stated in the bill as the time of issuing the execution.

      J. McConihe, for the complainants.

      J. Rhoades, for the defendant.
   The Chancellor.

The excuse for not having opposed the motion is unquestionably sufficient • as it was probably owing to inadvertence on the part of the court, in allowing such motions to be made as a matter of course before taking up litigated motions, that the defendant’s counsel was deprived of the' opportunity of opposing the motion when it was made. The defendant should therefore be placed in the same situation as if the complainants’ application for the appointment of a receiver was now to be heard and decided upon the papers before me.

If the affidavits on the part of the defendant are true, it is evident that the complainants can never succeed upon this bill, in its present form. In the case of Reed v. Wheaton, (7 Paige’s Rep. 663,) this court decided that where a creditor’s bill is founded upon a judgment in the supreme court, the complainant must show affirmatively that he has exhausted his remedy at law, by the issuing of an execution to the sheriff of the county where the defendant resided at the time such execution was issued; or he must insert some other averment, in his bill, showing a sufficient and legal excuse for not issuing his execution to the county where the defendant resides. Whether a positive averment in the bill that the defendant has no real or personal estate whatever in the county where he resides which is liable to a levy and sale by execution, would be a sufficient legal excuse to authorize the filing of a creditor’s bill upon the return of an execution issued to another county, it is not necessary to decide here. For there is no such allegation in this bill; nor does the affidavit of the solicitor for the complainants show that he believes that the defendant has no property or effects whatever in the county of Kings which are liable to execution. He merely states his belief that the defendant had not effects of any kind in that county of the value of $100. But where the defendant has property in the county in which he resides, which is liable to execution, sufficient to satisfy any part of the complainant’s debt, the remedy at law against the defendant’s property in that county will not have been exhausted until an execution has been issued there, to enable the sheriff to levy upon such property and apply it in satisfaction of the judgment as far as it will go.

Here, it is true, the bill contains an averment that the defendant resided in the county of Rensselaer at the time the execution was issued to that county. And if the complainants, at the hearing, should be able to prove the truth of that allegation, they might undoubtedly obtain a decree. But if they fail in that, as the affidavits before me show that they probably will, they cannot succeed by showing a different state of facts, not stated in the bill, which if alleged therein might have furnished a sufficient legal excuse for not issuing their execution to the county where the defendant resided. If such facts exist, the proper course of the complainants is to amend their bill, by stating the residence of the defendant truly at the time of the issuing of their execution to the county of Rensselaer, and by inserting such averments therein as they suppose will furnish a legal excuse for not issuing an execution to the county where the defendant resides; showing that they have in fact exhausted their remedy at law against all the property of the defendant which was liable to execution upon their judgment.

The order of the 23d of October last must therefore be vacated and set aside, without costs to either party. And the application for the appointment of a receiver must be dismissed ; but without prejudice to a new application by the complainants, upon an amended bill. Or if they think it more prudent for them to dismiss their present bill, upon payment of costs to the defendant, and to issue a new execution, they are at liberty to do so. And in that case the defendant’s costs in this suit may, when taxed, be offset and applied in part payment of the amount due to them upon the judgment against him.


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    Powell and others vs. Tuttle and others.
    1844. January 16.
    Where a party applies for leave to examine witnesses whose names have not been furnished to the examiner, or to the adverse party, according to the provisions of the 83d rule, upon the ground that the materiality of such witnesses has been discovered since the examination of all or any of the witnesses of the adverse party, a generaljaffidavit of the applicant, stating that the testimony of such witnesses is material, as he is advised by counsel and verily believes, is not sufficient; but he must state what facts he expects to prove by such witnesses.
    Where a party applies and obtains leave to examine new witnesses, whose names were not furnished according to the 83d rule, the adverse party, previous to the resumption of the examination of witnesses before the examiner, will bp allowed to furnish the names of new witnesses on his part and to examine them, to rebut or explain the anticipated testimony, or to support the testimony of his other witnesses; and he will also be permitted to re-examine any of his witnesses already examined, if necessary, to rebut or explain the testimony which may be given by the new witnesses examined by the party malting the application.
    But if such adverse party elects to examine new witnesses whose names have not already been furnished, the party who obtains the order of the court to examine the witnesses particularly named in his application, will also have liberty to furnish the names of other witnesses, and to examine them, to explain and rebut the testimony of the new witnesses introduced on the part of his adversary.
    This was an appeal by the defendants from a part of an order of the vice chancellor of the sixth circuit. The defendants applied for leave to examine two witnesses whose names had not been furnished to the complainants’ solicitor, or to the examiner, according to the provisions of the 83d rule of the court. The motion was founded upon an affidavit of the defendant Tuttle, stating that since his list of witnesses was furnished, and after the examination of witnesses on the part of the complainants, he had ascertained for the first time that the two persons sought to be examined were material witnesses for the defendants, as he xvas advised by counsel and believed to be true; but without stating what he expected to be able to prove by them. The case was submitted to the vice chancellor upon this and the opposing affidavits. And he made an order that the defendants be permitted to examine the two persons named as witnesses in any matter pertinent, except as to declarations or conversations of witnesses already examined on the part of the complainants ; and that the complainants be at liberty to examine any other witnesses on their part, on furnishing their names to the defendants’ solicitor at any time before the testimony on the part of the defendants was closed. The defendants appealed from this last clause of the order of the vice chancellor.

      Hiram Gray, for the appellants.
    J. A. Collier, for the respondents.
   The Chancellor.

Where a party applies for leave to examine witnesses whose names have not been furnished to the examiner, or to the adverse party, according to the provisions of the 83d rule of this court, upon the ground that the materialty of such witnesses has been discovered since the examination of all or any of the witnesses of the adverse party, a general affidavit of the party that the testimony is material, as he is advised by counsel and verily believes, is not sufficient. But he must state in his affidavit, briefly, the nature and substance of what he expects and believes he will be able to prove by such witnesses j not only to prevent evasions offlhe rule, but also to enable the court to insert such provisions, in the order allowing such new witnesses to be examined, as will be necessary to protect the rights of both parties. The form of the affidavit in this case was probably a mere technical slip.. The proper course, therefore, would have been to deny the application, without prejudice to the right of the defendants to renew it, upon a new affidavit in the proper form ; or to have allowed the application to stand over until the next regular motion day, to enable them to serve an additional affidavit upon the adverse party, showing what they expected to prove by these two witnesses.

Where a party is aware that a particular person is to be examined as a witness against him in the suit, it will frequently be necessary for him to examine other witnesses to explain or rebut the anticipated testimony of such person. This is provided for in the 83d 2’ule, by permitting either party to furnish to the officer before whom the examination of witnesses is commenced, the names of any witnesses that they may respectively wish to examine in the cause if all the witnesses named by the adverse party shall be examined. And the practice of the court must be in accordance with the principle of this rule, where either party afterwards applies to the court for leave to examine witnesses whose names were not furnished previous to the commencement of the examination. If the party making the application, therefore, is permitted to examine the new witnesses, the adverse party, previous to the resumption of the examination of witnesses before the examiner, must be allowed to furnish the names of new witnesses on his part, and to examine them, to rebut or explain the anticipated testimony, or to support the testimony of his other witnesses. And he must also be permitted to re-examine any of his witnesses already examined, if necessary, to rebut or explain the testimony which may be given by the new witnesses. But if he elects to examine new witnesses whose names have not already been furnished, the party who is permitted by the order of the court to examine the witnesses particularly named in his application should also be at liberty to furnish the names of, and examine other witnesses, to explain or rebut the testimony of the new witnesses introduced on the part of his adversary. Such, in effect, was the decision of this court in the case of Gaul v. Miller, (3 Paige’s Rep. 192 ;) and that practice has been followed in similar cases. And if a party who has neglected to furnish the names of some of his witnesses by mistake, or through inadvertence, or who has discovered new witnesses since the commencement of the examination, whose testimony is material, does not wish the privilege of examining them on these terms, he should not apply to the court for leave to examine them ; or his application, if made, should be denied with costs.

Here the vice chancellor has, by his order, departed from the established practice, by permitting the respondents to examine any new witnesses whose names shall be furnished to the appellants at any time before the testimony on the part of the defendants is closed, instead of requiring the names of such new witnesses to be furnished before the examination of witnesses is resumed • and without giving to the defendants the corresponding privilege of furnishing the names of and examining other new witnesses on their part, after they have been informed what new witnesses the complainants propose to examine. The part of the order appealed from is therefore erroneous, and must be modified, so as to be in conformity with the established practice of the court in such cases.

The order to be entered upon this application must direct that so much of the order of the vice chancellor as is appealed from be reversed and modified as follows, and that the costs of both parties upon the appeal abide the event of the suit: The complainants to be permitted to examine any new witnesses whose names shall be furnished by them to the adverse party, or to the examiner, at any time before the examination of witnesses shall be resumed ; and if the complainants furnish the names of any such witnesses, whose names were not originally furnished, that the defendants also be permitted to examine any other witnesses on their part, whose names were not originally given by them, in addition to the two mentioned in the order appealed from, upon furnishing the names of such new witnesses to the complainants’ solicitor, or to the examiner, at any time before the examination of witnesses in the cause shall have been resumed before the examiner. And the time to take testimony must be extended sixty days, and for such further time as the vice chancellor, upon application to him, may direct, to enable the parties to examine their witnesses.

Or, if the appellants, instead of having such a modification of the order appealed from, prefer to have the whole order reversed, and the application dismissed with the $7,50 costs allowed by the vice chancellor, and to pay the respondents’ costs upon this appeal, an order to that effect may be entered; provided they give written notice of such election, to the solicitor of the respondents, within twenty days after this decision is pronounced.