text:
    Hudson vs. Plets.
    Where the defendant, in a creditor’s suit, had been summoned to attend before the master, under the usual order of reference to appoint a receiver, &c., and had assigned and delivered over his property to such receiver on oath, and had been examined on oath as to the saute; Held that the ’power of the master, under the order, was spent; and that he had no right, after the defendant had once completed his examination, to issue a new summons to compel such defendant to attend before him, for a further examination, without a new order of the court.
    Where the defendant in a creditor’s bill has been once sworn, before the master, to answer as to his property, &c. which is to be delivered to the receiver, it is not necessary or proper to swear him a second time, upon an adjourned examination; but the complainant should proceed to examine him further, upon the oath already taken by him.
    The master, upon a reference in a creditor’s suit, has no right to adjourn the reference indefinitely, without the consent of the defendant, and to summon the defendant again before him at a future day. But he should require the complainant to proceed with all reasonable diligencie, to close the examination of the defendant, so that such defendant may be discharged from further attendance on the reference.
    Where the property of the defendant, in a creditor’s suit, has been assigned and delivered to the receiver, and has been sold by him*, the complainant has no right to examine the defendant, on the reference before the master, as to the title to such property.
    A mere right of action of a judgment debtor for a personal tort, as for assault and battery, slander, or malicious prosecution, cannot be reached by a creditor’s bill. Nor will it pass to the receiver under the usual assignment by the defendant in such a suit.
    But the right of action of the judgment debtor for an injmy to property to which his creditor had a right to resort for the payment of his debt, and by which injury such property is destroyed or diminished in value, is a chose in action which may be reached, by a creditor’s bill, and applied in payment of the complainant’s debt.
    'The bringing of a suit, by the defendant in a creditor’s bill, for an injury to his property, where no injury has resulted to the complainant by such suit, is not such a breach of the usual injunction as will authorize the granting of an attachment against the defendant.

      A creditor’s bill will not reach the right of action of a judgment debtor for an injury to property exempted by statute from levy and sale upon execution. It is, therefore, no breach of the injunction, usually granted upon such a bill, for the defendant in the creditor’s bill, to sue for an injury or tort in relation to such exempt property, and to collect the amount of the damages recovered in such suit.
    This was an application by the complainant for an attachment against the defendant in a judgment creditor’s bill, for an alleged violation of the usual injunction granted in such cases, and also for refusing to be sworn before the master. The violation of the injunction, which was complained of, was the bringing an action against a third person, for a trespass upon lands, which belonged to the judgment debtor before the filing of the bill in this cause, and for bringing another suit against the same person for tort in seizing property of the judgment debtor which was exempt from execution. And the refusal of the defendant to be sworn took place under the following circumstances.: The complainant’s bill was filed in December, 1842, and in January thereafter the usual order of reference to appoint a receiver, and for the defendant to assign and deliver over his property on oath, under the direction of the master, was entered. • A receiver was duly appointed, and in February, 1843, the defendant made the usual assignment of his property to the receiver, under the direction of the master, and was examined before the master as to his property, upon oath, as directed by the order of reference; and the receiver took possession of the property which upon such examination appeared to belong to the defendant, and the same was sold at public auction by the receiver, and purchased by the complainant, on the first of May, 1843. In September, 1843, the master, who had been superseded in his office by the qualification of a successor in the preceding April, issued a new summons to the defendant, to appear before him and be examined in relation to his property. The defendant attended before the master and declined to be sworn and examined as-to the matters of the complainant’s bill, or as to the property assigned, and which had been sold by the receiver. But the master decided he must be re-sworn as to the matters of the reference generally.

      O. L. Barbour, for the complainant.

      W. L. F. Warren, for the defendant.
   The Chancellor.

The defendant was right in supposing that the master had no power or authority to summon him before him, and to swear him again as to the matters of the reference. The object of the examination of the defendant, upon the usual order to appoint 'a receiver, &c., where the examination is not intended as a substitute for an ."answer to the complainant’s bill, is to enable the master to determine and direct what property is to be delivered over to the receiver. After the notes and other dioses in action in this case, therefore, had been delivered to the receiver, and had been sold by him, the defendant was not bound to answer any question in relation to such notes or other choses in action ; even if the original examination before the master had been adjourned, and had not been closed. And the defendant having been once sworn, generally, upon the reference, the master had no right to require him to be sworn a second time. But if a further examination was necessary or proper, for any purpose, the complainant’s solicitor should have propounded his questions as upon the original examination, without a new oath. And if the master decided that the questions were proper and had not been fully answered, the court would compel an answer to them, unless upon examination it appeared the decision of the master was wrong. The defendant was, therefore, right in refusing to be sworn generally, upon the reference, a second time.

Again; it is evident in this case that the examination of the defendant, under this order of reference, had been once closed; and that the master had no authority under this order of reference, to issue a new summons, for the purpose of compelling the defendant to attend before him, and submit to a new examination, without a special order of the court for that purpose. In these references under creditors’ bills, the master is not authorized to keep the reference open interminably, to enable the complainant to harass the defendant with attendances and re-examinations as often as the complainant thinks proper. But when the defendant is summoned to attend for the purpose of being examined and delivering over his property, the complainant should be compelled to proceed with all reasonable expedition to complete his examination of the defendant, either in answer to the matters of the bill, or as to the property which the defendant is required to assign and deliver over to the receiver; and the master should not adjourn the examination, or reserve the right to the complainant to summon the defendant a second time before him, without some reasonable grounds. Where the defendant attends before the master, and is examined, if the reference is not adjourned to some specified time, or the right reserved to the complainant to have a further examination, within some reasonable time, to be prescribed by the master, upon a further summons, the examination of'the defendant will be considered as closed, and the master’s power, under the order of reference, as spent. After that, if the complainant wishes a further examination, or desires directions as to the delivery of property subsequently discovered, he must apply to the court, upon proper affidavits, and notice to the adverse party, for an order authorizing or directing the same. So much of this application, therefore, as seeks for an attachment against the defendant for refusing to be re-sworn before the master, in September, 1843, must be denied. And, as the defendant denies the existence of any property whatever, except that which he had fully disclosed before the master on his former examination, and which was delivered to the receiver, so far as it was' capable of delivery, there is no ground for making a special order authorizing a further examination of the defendant.

The mere right of action of the judgment debtor for a personal tort, as for assault and battery, slander, or a malicious prosecution, cannot be reached by the complainant in a judgment creditor’s suit. Nor will it pass to the receiver under the usual assignment by the defendant in such a suit. (Benson v. Flower, Sir W. Jones's Rep. 215; 1 Deac. Bank Law, 386.) But the right to an action for an injury to the property of the judgment debtor, before the filing of the complainant’s bill, whereby the property to which the creditor was entitled to resort for the payment of his debt is destroyed, or diminished in value, appears to be such a thing in action as may properly be reached, and applied to the payment of the complainant’s debt, under a creditor’s bill. The mere bringing a suit for such a tort, however, without showing some injury which the complainant in the creditor’s bill has sustained thereby, is not such a breach of the usual injunction as will authorize the granting of an attachment against the judgment debtor. The case would be otherwise if this defendant had recovered a judgment, and had collected the amount thereof, or had released the right of action for the trespass. The suit against a third person for a tort, in taking property which was exempt from execution, does not appear to be a breach of the injunction, even if the right of action in that case accrued before the filing of the complainant’s bill; where the right had not been reduced to a mere debt, by the recovery of a judgment for the tort, previous to that time.' For the exemption of certain necessary articles from execution would be useless, if the creditor could seize them on his execution, and could reach such claim when a suit was brought against him or the sheriff for damages and deprive the debtor of it, by means of a creditor’s bill. The recovery of a judgment for the tort to the defendant’s exempt property, and even the collection of the amount of such judgment, is therefore no breach of the injunction in this case.

The residue of the complainant’s application must be denied with' costs, as there hás been no breach of the injunction of which the complainant has any right to complain.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    In the matter of Ryder, an infant.
    Where the rents and profits and income of real and personal property were devised and bequeathed to a feme covert for life, for her separate use, free from the control of her then husband, or of any future husband, with remainder to her surviving children and to the issue of such of her children as should have died leaving issue at the time of her death; Held that the court of chancery could not, during her lifetime, apply any part of the capital of the estate to the support of her minor children; their whole interest in the estate being contingent, and liable to be divested, in favor of other persons, in case of their dying during the lifetime of their mother.
    The court of chancery has no jurisdiction, to compel a parent to support his children, even if the parent has property sufficient for that purpose.
    A parent, who is able to do so, is bound to support his infant children, so far as is necessary to preserve them from perishing from want or destitution. But the law gives him a corresponding right to the services of his children, so far as they are able to earn their living.
    Where a son who was twenty years of age, and capable of earning his own living, applied to the court of chancery, by petition, to compel his mother, who was able-to furnish him the means for a professional education, to make him an allowance for that purpose, the petition was dismissed with costs, to be paid by the next friend in whose name the petition was presented.

      Jl seems, that it is an indictable offence for a parent, possessed of sufficient property to support his infant children, who are unable to support themselves, to permit them to suffer from want of the necessaries of life. And where a parent wilfully neglects to support his children, in such a case, a stranger may furnish them with necessaries, and recover compensation therefor from the parent.
    This was an appeal from an order of the vice chancellor of the first circuit. The appellant, who was a young gentleman of the age of twenty years, presented a petition to the vice chancellor, by his next friend, stating in substance that his grandmother, by her will, gave to her daughter, the mother of the petitioner, the rents and profits and income of her real and personal estate for life, for her separate use, free from the control of her then husband, or any future husband; with remainder to her surviving children and to the issue of such.as should have died leaving.issue, atherdeath; that,in 1842,thefatherofthepetitionerdied,leaving five infant children wholly dependant upon the property of their mother for support; that she afterwards married D. Richards and had one child by him; and that, for the reasons stated in the petition, his mother and her husband had refused to allow him a support out of the income of the estate so devised by his grandmother. He therefore insisted that, by the law of the land, his mother was bound to maintain and support him decently, and to educate him in a manner suitable to her condition in life and to her means: and also that, by the will of the testatrix, his mother was bound to apply the income of the property as well to the support of her children, as to her own use and benefit. And he prayed that the trustee of the estate might be ordered and directed by this court to pay to him, from time to time, such sums as should be convenient and necessary for his support, out of the income of the estate, not exceeding $350 per an-num, or that such sums should be allowed and paid to him out of his share of the estate which was devised in remainder after his mother’s death. The mother and the stepfather of the petitioner, and also the trustee of the estate, appeared and opposed the granting of the prayer of the petition; and the same was denied, by the vice chancellor, with costs to be paid by the next friend of the infant. From this decision the petitioner appealed to the chancellor. '

      J. M. Martin, for the appellant.

      J. Dikeman, for the respondents.
   The Chancellor.

It is unnecessary to look into the affidavits in this case, or to inquire whether the mother of the appellant had good and sufficient reasons for withholding a support from the petitioner to enable him to complete his professional education; for, this court has clearly no jurisdiction to make any order in the case, upon this petition. There is no pretence of claim on the part of the petitioner to a support out of the income of this estate, under the will of his grandmother. There is an absolute gift from the testatrix, to her daughter, of the whole income of the estate for life, for her own separate use; and the children have no more legal or equitable claim to such income than any strangers to her blood would have had under a similar devise, of a remainder in property after the termination of a previous life estate therein.. Nor can the court, in this case, even with the consent of their mother, appropriate any part of the capital of the fund to the support or maintenance of her children, as they have not an interest in any part of the estate. The children have only a contingent interest, even in the capital of the estate; and the extent even of that contingent interest cannot be ascertained while the mother is alive, and is capable of bearing children. For, the after-born children are equally entitled with those who were in esse at the death of the testatrix. And such of the children as may happen to die in the lifetime of their mother will have no rights to the estate, even if they should leave issue. For the estate, in that event, is given to -the issue and not to them. It is impossible to say, therefore, that either of the six children, now in existence, will ever be entitled to any part of the capital of this estate. The case is different-where a remainder in a fund is given to a class of infants absolutely, with a right of survivorship as between themselves merely. There, as the chances of survivorship are equal, the court, with the assent of the owner of the particular estate in the fund, may devote the capital of the fund to the support of all the infants equally, as it will produce no injustice to either. (See Ex parte Kibble, 11 Ves. 604; Errat v. Barlow, 14 Id. 202; Turner v. Turner, 4 Sim. Rep. 430; and Ex parte Davison, 6 Paige’s Rep. 136.) The trustee, in the presen tease, must keep the capital of the fund undiminished, until, by the death of Mrs. Richards, it can be ascertained who is entitled to share in such fund.

A parent, who has the means, is undoubtedly bound to support his or her minor child, that is, to afford the child a bare support. The law, however, gives to the parent a corresponding right to the services of the child while such support is afforded; for the parent is not bound to support his children in idleness, even if his property is sufficient to enable him to do so. The remedy, to compel a parent to furnish necessaries for his infant children, is not by a petition to this court. The performance of that duty must be enforced by a proceeding under the statute, by an application to the general sessions, for an order upon the parent for the support of his child. Or a stranger may furnish necessaries for the child) and recover of the parent compensation therefor, where there is a clear and palpable omission of duty, on the part of the parent, in supplying a minor child with necessaries. (Van Valkenburgh v. Watson, 13 John. Rep. 480.) And it seems that the neglect of a parent to provide for his infant child of tender years, and who is incapable of providing for himself, is an indictable misdemeanor. (See Rex v. Friend, Russ. & Ry. C. C. 20.) In the case under consideration, however, where the son is twenty years of age, and in perfect health, so as to be able to support himself by his own industry, I doubt whether any court is authorized to compel his mother to furnish the means of obtaining a professional education, whatever may be the amount of her property. At least for the court of chancery, over which I have the honor to preside, I must disclaim the existence of such a power to control parental discretion.

The vice chancellor was therefore right in refusing the prayer of the petitioner. And as the want of jurisdiction appeared on the face of the petition itself, and not upon disputed facts which might have formed a prima facie case for relief) the next friend of the petitioner is answerable for the consequences of not informing himself correctly as to the law of the case, before he allowed his name to be used in such a petition. The vice chancellor was therefore right in charging him with the costs of the respondents in resisting the application. And for these reasons the order appealed from must be affirmed, with costs to be paid by the appellant.


text:
    Dickenson and wife vs. Codwise and others.
    Where a decree made a final disposition of a part of the subject matter of litigation, and reserved no question of costs in relation thereto, and directed a reference as to another part of the subject matter of the suit, with a view to a decree for a partition ; Held that the decree was final, as to that part of the matters in litigation of Which a final disposition had been so made; and that an appeal might be brought from that part of the decree after the expiration of the fifteen days allowed by law for appealing from an interloputory decree.

      Held also, that if the question of costs in relation to the part of the matters in litigation which was finally disposed of by the decree had been reserved, the whole of the decree would have been interlocutory.
    Where a decree disposes absolutely of the whole subject matter of the litigation, and leaves nothing further to be done by the court in relation thereto, it is a final decree. And a mere direction in the decree as to the manner of carrying such decree into effect, but which does not require the case to be again brought before the court for further directions, will not make the decree interlocutory.
    But a reservation of the question of costs, in a decree which, in other respects disposes of the subject matter of the suit, renders such decree interlocutory.
    This was an application by the defendant, Mary Codwise, for the dismissal of an appeal, by the complainants, from certain parts of the decree of the assistant vice chancellor, in this case, upon the ground that the appeal was not brought within the time, allowed by law, for appealing from interlocutory decrees of vice chancellors. The bill was filed by one of the daughters and devi-sees of G. Codwise, deceased, and by her hupband, against the widow of the decedent, and his other devisees, for the partition of several parcels of land in the city of New-York, and for an account of the rents and profits of the premises; and also for an account of the personal estate of the decedent, which had come to the hands of the widow, as his executrix. M. Codwise, the widow and executrix, claimed the legal title to certain portions of the premises, in fee, in her own right; and as to some other parts of the lands she claimed an absolute right to them in equity. Upon hearing the cause, upon pleadings and proofs, the assistant vice chancellor decided and decreed that several distinct portions of the premises belonged to the decedent at the time of his death, and determined the undivided rights of the several parties therein, as tenants in common; and directed a reference to inquire as to incumbrances thereon, with a view to a sale or partition. As to another parcel of the premises, of which partition was sought, he decided and decreed, that the widow was seized thereof in fee, in her own right, of an absolute legal title, for her own use, and that none of th e other parties to th e suit had any title or interest therein; and as to another parcel, that she was eqüitably seized of an estate in fee in her own right. And he directed the other parties,to release to her all their interests in that part of the premises, under the direction of a master. He also directed a reference to a master to inquire as to certain liens upon the several other parcels of land of which partition was sought, and to apportion the same, upon certain principles stated in the decree. He also directed an account to be taken of the rents and profits which had arisen from the real estate which actually belonged to the decedent, and an account of the personal estate; giving special directions as to the manner of taking'such accounts, &c. The decree also contained various directions and declarations as to the rights of the widow in that part of the estate of which her husband was absolutely seized at the time of his death, subject to her right of dower, and as to the portions of the incumbrances with which she was chargeable in respect to her life estate therein as tenant in dower, and as one of the statutory heirs of some of her children, who had died without issue. And the decree reserved the right to apply, from time to time, for further directions and instructions in relation to taking and stating’ the accounts, and reserved all further or other directions respecting the partition and sale of the premises, or otherwise relating to the matters in controversy in this suit, until the coming in of the master’s report.
    The complainants appealed from so much of the decree as settled and declared that the defendant, M. Codwise, was solely entitled to two parcels of the premises of which partition was sought, and .as directed the other parties to release those two parcels, to her under the direction of a master; and from several of the directions, in the decree, in relation to the taking of the account, and declaring what portions of the debts and incum-brances, owing by the decedent at the time of his death, were charges upon the real estate of which he died seized, in his own right, and for his own benefit.

      S. F. Clarkson, for the appellant.

      E. H. Owen, for the respondent.
   The Chancellor.

Some parts of the decree appealed from, and embraced in this appeal, are clearly interlocutory; and as the- appeal was not entered within the time allowed by law, for appealing from an interlocutory decree, a part of the appeal at least must be dismissed. Two questions, therefore, require to be considered: First, whether that part of the decree which declares and settles that the respondent is entitled, in her own right, to two parcels of the land of which the complainants sought partition, by their bill, and which two parcels the other parties in the suit are directed to release to her, under the directions of a master, is a final decree as to that part of the lands of which the partition was sought; and, Secondly, if that part of the decree is final and not interlocutory, whether the appeal can be dismissed so far as it seeks to review the assistant vice chancellor’s decision in respect to the interlocutory parts of the decree, and retained as to that part of the subject matter of the suit as to which the decree is final.

Upon the first question, I see no reason to doubt that so much of the decree as relates to the two parcels of land declared to belong to M. Codwise in her own right, is a final decree; as it absolutely disposes of that part of the subject matter of the litigation, and leaves nothing further to be done by the court in relation thereto. It is true, the other parties are directed to release to the respondent, under the direction of the master. But that is merely the manner of carrying into effect the final decree, in respect to that part of the subject matter of the suit, and does, not require the case to be brought again before the court. And as no reservation of the question of costs, as to this part of the litigation, is contained in the decree, and nothing is. said on the subject, neither payty can hereafter claim costs, as against the other, in reí ation to this part of the suit. If the question of costs had been reserved, in reference to this part of the subject of the suit, every portion of the decree would have been interlocutory, within the meaning of the statutory provision, which requires appeals from interlocutory decrees to be brought within fifteen days. But as the decree stands, it is the same, in effect, as if it had decreed that the complainant’s bill should be dismissed, as to these two parcels of land, without costs to either party; and had declared the rights of the parties as tenants in common in the residue of the premises, subject to the lien thereon of the amount which may be found due to the widow of the decedent for incumbrances thereon paid by her, and which has not already been reimbursed to her out of the rents and profits of the premises, or otherwise, and had directed the inquiries mentioned in the decree, preparatory to a final hearing and decree of partition, &c.

In reference to the second question, I see no difficulty in directing the appeal to be dismissed, so far as it was unauthorized because it was not made in time. The appeal would have been correctly made if it had been limited to that part of the decree which finally disposed of the claim to a partition of the two parcels of land which were decided to belong absolutely to the respondent. And if the residue of the appeal is dismissed, as unauthorized and irregular, and this part thereof is retained, it will be in the same situation as if the appeal had been thus limited when it was first entered. An order must therefore be entered accordingly; and without costs to either party on this application, in which the respondent succeeds but partially.


text:
    Webb vs. Crosby.
    Where the taxed bill of costs, and the affidavits, used before the taxing officer in support of the charges in the bill of costs, were neither filed with the register, nor left with the taxing officer, the adverse party, upon an application for re-taxation, is not bound to serve a copy of the taxed bill, or of the affidavits used in support of the same. But it is sufficient if he moves upon the bill of costs, as served upon him previous ' to the taxation, and upon evidenceshowing what took place before the taxing officer.
    Where the objections to the items of the bill are made orally, before the taxing officer, the proper course of the party asking for a re-taxation, is to state, in an affidavit, what took place on the taxation, and to serve a copy of the affidavit upon the adverse party, with the notice of the motion for re-taxatipn.
    The review of the decision of the taxing officer must be -made upon the evidence which was before him, and not upon new affidavits as to the correctness or incorrectness of the items allowed.
    It is not necessary to serve copies of the papers, used before the taxing officer, with the notice of the motion for a re-taxation; but it is sufficient to produce to the court, upon the hearing of the motion, the papers -used before such officer, or copies thereof, together with satisfactory evidence of their authenticity.
    And as the taxed bill, with the affidavit annexed thereto, is delivered to the party whose costs are taxed, it is not necessary for the adverse party, who applies for a re-taxation, to produce such affidavit.
    Where such affidavit is not produced by the party, in whose possession it is supposed to be until it has been regularly filed, if there is nothing to inducea belief that it.was defective, the .court may presume that it was in the form prescribed by the 130th rule. The defendant cannot charge, against the complainant, the postage on a further answer, sent by mail to be filed, as such charge arose from the defendant’s neglect to put in a perfect answer in the first place.
    Nor can a party charge his adversary with postage on the pleadings in the cause, which were sent to counsel to enable such counsel to cross-examine a witness.
    A defendant can charge for the draft, engrossing and copies of so much of his further answer as was necessary to make the first answer full and complete; but not for drawing, engrossing, and copying the jurat, and for the verification of the same, which would not have been necessary if the first answer had been perfect.
    A copy of the order to .produce witnesses, to serve, cannot be charged, in addition to the notice of the entry of such order.
    Nor can a charge for draft, and copies of a list of witnesses to be examined, be charged in addition to a notice of such list. The list of witnesses required to be delivered, by the 83d rule, is nothing but a notice to the adverse party, or to the examiner, of the witnesses to be examined in the cause; and suph list is to be charged for as a notice merely.
    Where a cause is submitted upon written arguments, counsel fees for counsel, not exceeding two, who were actually engaged to argue the cause, and who prepared the written arguments, are taxable.

      But an allowance to the solicitor, of a fee for attending the argument of the cause, cannot be made where the cause is submitted on written arguments.
    A defendant, who is entitled to costs, can oharge the adverse party for a copy of the testimony, of his witnesses, to be used on the hearing of the cause.
    Where charges are allowed, upon taxation, for prospective services, such charges are to be deducted from the taxed bill, if such prospective services are rendered unnecessary, by the payment or tender of the costs before the services are performed. And if the solicitor of the party entitled to the costs refuses to deduct the amount of such charges for prospective services, the party who is compelled to pay the same to prevent further costs, will be entitled to recover them back, with treble damages.
    This was an application by the complainant for a re-taxation of the defendant’s costs, upon a decree for the dismissal of the bill with costs. The complainant gave notice that he should move for re-taxation of certain items, which were allowed by the taxing officer, although objected to on the taxation; and that he would found his application upon a copy of the bill of costs served, and of his objections to the same, and upon the bill, answers, depositions, and all other papers in the cause, used before the taxing officer, in taxing the costs. But he did not serve on the defendant’s solicitor á copy of the bill as taxed, and of the affidavits annexed to the bill, nor in support of the charges therein; and the defendant’s counsel made that objection to the regularity of the application.

      W. D. White, for the complainant.

      O. L. Barbour, for the defendant.
   The Chancellor.

The objection, that a copy of the taxed bill, and of the affidavits in support of the same, were not served, is not well taken. As the taxed bill was not filed with the register, within twenty days after taxation, as required by the rule of the court, it was impossible for the solicitor of the adverse party to produce a copy thereof upon the hearing of the motion. He has done, however, what is sufficient, in producing the copy of the bill as served, with the remarks of the taxing officer thereon, showing what items were allowed and what were disallowed. And he also produces the certificate of the taxing officer,' showing that neither the separate affidavit in support of the bill of costs, nor the affidavit which was annexed to the bill itself before taxation, as required by the rule, was left with him, but that they were taken by the defendant’s solicitor, or counseL It is for the defendant, therefore, to'produce those affidavits, on this motion, if he wishes the benefit of them; and his counsel has, therefore, very properly produced them.

Where the objections to the items of the bill are made orally, before the taxing officer, the proper course for the party asking for a re-taxation, is to state, in an affidavit, what took'place on the taxation, and to serve a copy of that affidavit upon the adverse party, with the notice of the motion for re-taxation. And as the review of the decision of the taxing officer must be made upon the evidence which was before him, and not upon new affidavits, before the court, as to the correctness or incorrectness of the items allowed, it is not necessary to serve copies of the papers which were used before the master, with the notice of the application, for re-taxation, which is to be given to the adverse party. But it is sufficient to produce to the court, upon the application, the papers used before the taxing officer, or copies thereof, together with satisfactory evidence of their authenticity. And as the taxed bill, with the affidavit annexed thereto, is delivered to the party whose costs are taxed, it is not necessary for the adverse party, who applies for a re-taxation, to produce such affidavit. Where it is not produced, by the party in whose possession it is supposed to be until it has been regularly filed,.if there is nothing to induce a belief that it was defective, the court may presume it was in the form prescribed by the 130th rule. Here the objections to the items of the costs were in writing, and were annexed to the copy of the bill as served on the complainant’s solicitor with notice of taxation; and they stated the grounds of such objections and the facts upon which they were based, and were delivered to the taxing officer, with an affidavit of the complainant’s solicitor as to the truth of the grounds of such objections. And these original objections, and the affidavit and other papers, are produced, with the taxing officer’s remarks thereon, and a statement of his taxation, showing that he had the objections and evidence before him, and had acted upon them. This is all that is neeessary to enable the court to review his decision understandingly, and upon the same evidence which was before him.

The decision of the taxing officer, upon nearly all the items objected to, was undoubtedly correct, and as to most of them was so clearly so that it is unnecessary to remark upon them, although many of such items are still objected to by the complainant’s counsel.

As about $40 is charged for postage, in this bill of costs, it is necessary to scan the charges for such postage closely. The first charge of that kind which is objected to, and which was not wholly disallowed by the taxing officer, is a charge of $4,13 for “postage on further answer to file, and on bill and other papers to J. R., to be used by him as counsel on taking depositions at Albany.” The taxing officer has stricken out $2 of this gross sum, and has allowed the residue. I think, however, he erred in allowing any of it. For the complainant was not properly chargeable with the postage upon the further answer of the defendant to file — that being a charge arising from the neglect of the defendant to put in a perfect answer in the first place. Nor was it necessary to send the whole of the pleadings in the cause to counsel to enable him to cross-examine a witness, whose whole deposition contained but six folios, and whose cross-examination did not amount to one. The solicitor is allowed for instructions for the examination of the witnesses of his client, and for the cross-examination of those of his adversary. And if those instructions are properly drawn,‘the counsel will be able to examine or cross-examine a witness without having the pleadings in the Cause also before him. If the pleadings were furnished for that purpose, therefore, as charged in the bill, the disbursement was unnecessary and should not have been allowed. Again; I think there must be a mistake in supposing that the pleadings were sent to counsel at Albany, for that purpose, at the same time that the further answer was sent to be filed. For it appears, by the bill of costs, that the defendant was compelled to put in a third answer before a replication was filed, so as to put the cause in a sitúation to take testimony. The whole of this item of postage must, therefore, be stricken from the bill.

The taxing officer was right in allowing for the draft, and engrossing, and copies of so much of the further answer, and of the third answer, as would have been required to make the first answer full and complete; and he has stricken out the charges for drawing, engrossing, and copying the jurats, and for the swearing to these further answers, and other charges of the like nature, which would not have been necessary if the first answer had been perfect. This was in accordance with the decisions of this court upon the subject. (See 2 Paiges Rep. 51; and 8 Idem, 619.) The fourteen cents for a copy of the order to produce witnesses, to serve, in addition to the notice of the order, was not taxable; and should have been stricken out.

The solicitor was not entitled to charge for the drawing and copies of the list of witnesses to be examined, and also for notice of the list. Both could not be necessary; nor could it be necessary to spin out a list of witnesses to the length of three folios, when but half a dozen witnesses were to be examined in the cause on both sides. The list of witnesses required by the 83d rule, to be delivered, is in fact nothing but a notice to the adverse party, or to the examiner, of the witnesses who are intended to be examined, in the cause, by the party giving such notice. And it is allowed as a notice merely, in the precedent of costs settled by the court and annexed to the printed rules. It should, therefore, be taxed as a notice only; and the charges for drawing, and for the copy of the list of witnesses to be examined, amounting to $ 1,05, in addition to the charge for the notice of the witnesses intended to be examined on the part of the defendant, should have been disallowed by the taxing officer.

The cause was not argued in court, but after two counsel had been employed to argue it, and had attended at the term for that purpose, the parties agreed that written arguments should be exchanged, and that the cause should be submitted upon the pleadings and proofs, and upon such written arguments; and it was submitted accordingly. Under those circumstances the complainant’s solicitor objected, before the taxing officer, that neither the solicitor’s nor .counsel fees upon the argument were taxable ; but both were allowed. I think the taxing officer was right in relation to the counsel fees. Counsel are allowed, for arguing every cause upon the merits, eight dollars to each counsel not exceeding two. And where two counsel are actually engaged to argue the cause, and by consent submit their arguments to the court upon paper, instead of delivering them orally, there is no good reason why they should not be allowed their fees for the argument. But this will not justify the allowance of counsel fees where counsel do not in fact examine the case, and prepare written arguments for the court. In this case I have no doubt that the written arguments were in fact prepared by the counsel who were employed to argue the cause, and not by the solicitor merely. The allowance for counsel fees is, therefore, sustained. The allowance to the solicitor, however, depends upon a different principle, and must be rejected. The allowance of five dollars to him, by the fee bill, is for “actually attending the court of chancery upon the argument of a cause.” And from the note of Chancellor Kent to this item, in the fee bill of 1818, which was prepared by him, it is evident that this fee was only intended to be allowed, to the solicitor, upon his personal attendance in court upon the argument of a cause. It cannot, therefore, be taxed for a mere constructive attendance; nor can it be allowed where the cause is submitted, upon written arguments, out of court.

The copy of the testimony of the defendant’s witnesses, to be used on the argument of the cause, was properly taxable. For it was necessarily made, to be used at the August term, although it was not sent to Mr. Rhoades in time to be submitted to the court, under the stipulation subsequently entered into between the solicitors.

The two charges of $4,50 for “ postage on bill, answer, and written argument to J. R. to be used on final argument and submission of cause,” and of $7,31 for “ postage on papers in the cause used by counsel on argument,” do not appear to be proper charges against the complainant, and ought not to have been allowed. The facts stated in the objection, and sworn to by the complainant’s solicitor, show that the papers mentioned in the first of these charges, could not have been sent until long after the submission was completed, and after the defendant’s solicitor had'notice of the fact. By the stipulation,' after the written arguments were exchanged the defendant’s solicitor was forthwith to send his papers to J. R. to be submitted, without any oral argument. All the papers, therefore, which were required by the rules, or which were necessary to be sent for the submission, were copies of the defendant’s depositions, abstracts of his exhibits and written arguments and points. The final arguments were exchanged on the 19th of September, and the submission was completed, and notice thereof served, on the 7th of October thereafter, at which time the papers that the defendant should have furnished had not been received by J. R. The complainant, therefore, was authorized to furnish these papers for the court, himself, which he did; and the defendant’s solicitor, 'after the cause had been decided in his favor, was not authorized to have all these papers, which had been thus uselessly sent to Albany, returned to him by mail, at the expense of the adverse party, for the mere purpose of enabling the defendant’s solicitor to make up his bill of costs. And they could not have been necessary for any other purpose in this suit; as the bill was dismissed with costs, and there was no appeal.

The allowance to counsel, for perusing and amending the decree, was properly taxable; for the decree contained special provisions, as to the reservation of the rights of the parties to the surplus moneys in the foreclosure suit, and the right of the complainant to subrogation, &c. The charges for prospective services are all proper, if those services shall be in fact performed before the costs are paid or tendered ; but if not, they must of course be deducted. And in case the defendant’s solicitor refuses to make the deductions, upon payment, or a tender of the costs, before such prospective services shall have been rendered, and the complainant is thus compelled to pay the same to avoid further expense, they can be recovered back, with treble damages.

The objectionable items above enumerated, amounting to $20,13, must be deducted from the 'bill as taxed, and neither party is to have .costs as against the other upon this application.


text:
    Warren, receiver, &c. vs. Sprague.
    The-rule which prohibits a receiver from employing the solicitor of either of the parties to the suit, in which he is appointed receiver, is intended to protect the rights of the parties to such suit.
    And if such parties make no objection, the receiver may employ the solicitor of either to aid him in the discharge of his trust.
    A mere stranger to the suit has no right to object to the employment, by the receiver, of the solicitor of one of the parties to the original suit, to institute a new suit against such stranger.
    This was an appeal from a decision of the vice chancellor .of the first circuit, denying the defendant’s application to take the complainant’s bill off the files of the court, and allowing- the complainant to substitute a -new solicitor to prosecute this suit. The bill was filed by a receiver, who had been appointed in,a creditor’s suit between O. Ames, as complainant, and G. Weth-erelf and H. St. John, as defendants; and the only ground of objection to.the bill in the present-suit was, that-it was prosecuted by the same solicitor who appeared for the-complainant in the original suit, in which the receiver was appointed.

      J. M. Martin, for the appellant.

      T. H. Rodman, for the respondent.
   The Chancellor.

The only error in the order appealed from is that the application to take the bill off the files was not denied with costs; instead of .requiring the complainant to appear by a new solicitor and to pay the costs of .the defendant upon the motion. But that was an error in favor of the appellant, and of which he has, of course, no right to complain by appeal. The rule which prohibits a receiver from employing the solicitor of either of the parties to the suit in which he is appointed receiver, is intended to protect the rights of those parties. And, if they have no objection, the receiver may employ the solicitor of either to aid him in the discharge of his trust. A mere stranger to that suit has no right to object, that the receiver has employed the solicitor of one of the parties, in the original suit, to institute a new suit against such stranger. The proceedings of the complainant, in filing this bill, were therefore strictly regular, so far as regards the defendant therein; and the latter had no right to raise the objection that the solicitor employed by the receiver, to file the bill against him, was solicitor for the complainant in the suit in which such receiver was appointed.

The order appealed from, not being erroneous as to the appellant. must therefore be affirmed with costs.


text:
    May & Filkin vs. May and others.
    Where mortgaged premises, sold under a decree of foreclosure, were worth $5000, and were put up for sale by the master, and two bids, one of $1800 and another of $2000 were made thereon, and the master then suspended the sale for some considerable time, and in the mean time the person making the bid of $2000 was induced by some one to retract his bid, and the master, instead of falling hack upon the previous bid of $1800, which had been made by a person who had left during the suspension of the sale, put up the premises anew, and struck them off for $560, leaving a large amount, due to a judgment creditor of the mortgagors, unpaid, such judgment creditor being ignorant that the sale was to take place; the court, upon application of the judgment creditor, set aside the sale, as irregular, and ordered a re-sale.
    It was also Held, that the purchaser ought to have presumed, that a court which proceeds upon equitable principles would not sanction such a sale, if the parties injured by the error of the master should apply to set it aside; and that he was riot entitled to the costs of opposing the application for that purpose, although there was nothing to show that the bid of $2000 was withdrawn by his management, or in consequence of his collusion with the parties to the fraud.
    This was an appeal from an order of the vice chancellor of the third circuit, setting aside a master’s sale, under a decree in a foreclosure suit. The premises in question were worth five or six thousand dollars, and were sold by the master, and struck off to the appellant T. W. Newcomb, for $560, the amount claimed by the complainants as due upon the decree, and chargeable upon the premises. The respondent B. Baker was a judgment creditor, of the owners of the equity of redemption, to the amount of about $10,000; and his judgment was the first lien upon the mortgaged premises, subsequent to the mortgage of the complainants. But, as he was entirely ignorant of the proceedings in the foreclosure suit, or even of the existence of the mortgage, having been previously assured by his judgment debtors, that his judgment was the oldest lien upon the premises, he did not attend the master’s sale to bid for the premises. Several other persons, however, who knew the sale was to take place, attended for the purpose of bidding upon the premises. The premises were put up by the master, and E. W. Walbridge, who was authorized to buy the premises for a third person, made a bona fide bid thereon to the amount of $1800. W. Newcomb, another person, who attended the sale for the purpose of purchasing the premises, then bid the sum of $2000. In that stage of the proceedings, the master suspended the sale for some considerable time, and until Walbridge had left the house where the sale took place; and in the meantime W. Newcomb had been induced, by some means, to retract his bid of $2000. The master, instead of falling back upon Walbridge’s bid of $1800, or suspending the proceedings a few minutes and notifying him that the bid of $2000 had been withdrawn, put up the premises de novo, and subsequently struck them off to the appellant, for the $560, the amount claimed to be due to the complainant upon the decree, as against these premises.

      J. D. Willard, for the appellant.

      Ira Harris, for the respondent.
   The Chancellor.

It is not necessary to inquire, in this case, whether the appellant took any active part in, or was privy to, the attempt on the part of the Reeds to defraud the respondent of the lien of his judgment on the mortgaged premises. For it would be entirely inconsistent with the justice of this court to permit such a sale to stand, even, if it was reduced to a positive certainty, that the appellant had been allowed to purchase the mortgaged premises, for one tenth of their real value, by the mistake of the master, in suspending the sale, and then putting up the premises de novo, after the $2000 bid was withdrawn ; and without any management on his part, or with his privity. Under the circumstances which occurred at the sale, the master should either have adjourned the sale to a future day, or should have put up the premises at the bid of Walbridge of $1800; or at least he should have suspended the sale a few minutes longer, and sent him word that the premises stood for sale upon his bid, in consequence of the withdrawal of the bid of W. Newcomb.

Again; the affidavits before the vice chancellor irresistibly lead to the conclusion, that there was an unconscientious attempt, on the part of some person, to have the mortgage foreclosed, and the premises sold, in such a manner as to deprive the respondent of the benefit of his judgment lien upon the mortgaged premises, and upon the surplus value of the premises beyond the amount of the mortgage debt. Who it was that requested the master to postpone the sale foi' a time, when from the competition which had taken place there was danger that the property might be sold for something like its real value, or whose interference it was that induced W. Newcomb to resile from the bid of $2000 which he had made for the mortgaged premises, does not appear. But it is impossible to wink so hard as not to see that, by the improper interference and management of some one, the property upon which the respondent’s judgment was a lien, was suffered to pass into the bands of the appellant, for a sum which was wholly disproportioned to its real value; and for no other apparent object than to deprive the holder of the judgment of his legal and equitable right to priority of payment out of the surplus proceeds of the mortgaged premises. And I cannot believe the appellant did not at least suspect that some improper means had been resorted to for the purpose of preventing competition at this sale, and to enable him to buy in the premises below their real cash value. If so, be was bound to know that a court, which proceeds upon equitable principles, would not permit the sale to stand, in case the judgment creditor, who had been thus defrauded of his lien, should think proper to apply to open the sale.

The delay in making' the application is sufficiently accounted for. And as the purchaser had done nothing to alter the rights of the respondent subsequent to the giving of the deed, by the master, but had suffered the owners of the equity of redemption to remain in the undisturbed possession of the mortgaged premises down to the time of the application to the vice chancellor, all he had a right to claim was a return of his purchase money and interest; which the order appealed from directs the respondent to pay. If the purchaser had submitted to a re-sale, upon the hearing of the petition, the question whether he should have his costs might have been a proper subject of consideration. But when he employed counsel and instructed them to insist upon ’his right to retain the unconscientious advantage he had obtained, through the frauds-of some one, he could not expect to have costs allowed to him for an unsuccessful resistance to this equitable claim of Baker to relief.

The order appealed from is not erroneous, and it must be affirmed with costs.


text:
    Aldrich vs. Putney.
    Where a party went into possession of land, under a written contract to purchase the land, and to pay for it in five years, and, being unable to pay for the land, he abandoned it and consented that the vendor might make a new contract with another person, and the latter went into possession, under a verbal contract to purchase and pay for the land, but never made any payments thereon, and the vendor afterwards resumed the possession of the land, Held, that a complainant, who had bought up the claims of the purchasers under both contracts, after such possession had been resumed by the vendor, was not entitled to a decree for the specific performance, either of the written or of the verbal contract.
    This case came before the chancellor upon appeal. The facts of the case, so far as the same are necessary to understand the decision, are stated in his opinion.

      J. Taylor, for appellant.

      A. Worden, for respondent.
   The Chancellor.

This is an appeal, by the complainant, from a deerpe of the vice chancellor of the seventh circuit, dismissing the bill in this caíase. The object of the bill, which was filed in the latter part of 1837, was to compel the specific performance of a contract for the sale of lands. From the plead-' ings and testimony, I am satisfied that the complainant had no claim to a specific performance. -Upon his own showing, the contract with Wentworth was made in October, 1824, and the last payment thereon was to be made on the 1st. of September, 1829; that is, the principal was to be paid in five equal annual pay- • ments, with interest on the whole annually. A very small portion of the payments were made; but, according to the statements in the bill, and the testimony, each party abandoned all claims against the other, under the contract, upon the verbal agreement being made, by Putney, to give to Mill's a new contract for the land. It was under this verbal agreement that Mills went into possession ; and not under the old contract with Went-worth which was abandoned. And it is perfectly immaterial whether the new contract was to be upon the terms of payment, by Mills, of the whole sum in two years, as stated in the defendant’s answer, or upon the payment thereof in four yearly payments, with annual interest, as specified in the original agreement. For Mills did neither. He remained there five years, without making any payment whatever towards the principal; and if he paid any interest under this verbal agreement, which is doubtful, it was only paid to the 1st of September, 1836. I am inclined to think, however, from the testimony, that the interest paid was upon a subsequent agreement, made with the wife of Mills, to permit the family to remain upon the premises upon payment of the annual interest for a certain time, and not as a part payment for the land, under the verbal agreement to renew the contract. At the time Putney took possession of the land, in 1837, therefore, Mills had no right to a specific performance, either of the original contract, which was abandoned in 1832, or of the verbal agreement for a new contract, which he had entirely failed to fulfil, either wholly or in part. Under such circumstances, a court of equity ought not to sustain the bill of a third person, who had bought up a claim of this kind, knowing that it would be contested. The fact that the original contract was not assigned to Mills, in 1832, is of itself a very strong circumstance to show that all parties considered it as at an end. Whether both the written and the verbal contracts Were not invalid, for want of mutuality, are questions which it is not necessary to consider; as I am satisfied that the bill was properly dismissed, without reference to those questions. The decree appealed from must therefore be affirmed, with costs.


text:
    Smith and others vs. Lawrence.
    Where S. bequeathed his personal estate to his son J. W. S., and made L. executor of his will, and the son subsequently died, having previously appointed L. and three other persons his executors; Held, that the co-executors ofL., under the will of the son, had a right to cite L. to account before the surrogate, as the executor of S., to enable them to ascertain the amount due from him to their testator, under the will of S. the original testator.

      Held also, that L., upon being thus cited to account, could have a final settlement of his accounts, as the executor of S., in the same manner as if he had been cited to account by J. W. S. the son in his lifetime.

      Held further, that the amount which should be found in the hands of L., upon such accounting, belonging to the estate of J. W. S. as the legatee of his father, would be assets in the hands of L. as one of the executors of the son.

      Held also, that the fact that the executor of the father was also one of the executors of the son, was not a valid objection to the jurisdiction of the surrogate to cite him to account, upon the application of his co-executors under the will of the son.
    But it seems that, in such a case, the surrogate, after the account of L., as the executor of the father, had been rendered and settled, would not be authorized to decree payment, to his co-executors, under the will of the son, of the balance found due from him, as the executor of the father, to the estate of the son.
    In a court of law, one executor or administrator cannot sue his co-executor, or co-administrator, to recover a debt due from the latter to the estate of the testator or intestate.

      But a court of equity, upon a bill filed by an executor against his co-executor, can settle the question as to the fact of the indebtedness of the latter, to the estate of which he is one of the executors, and the amount of such indebtedness, without divesting the defendant of the possession of the fund due from him to the estate which is represented by both parties to such suit; and when the amount of the defendant’s indebtedness is ascertained, the court can direct such disposition of the fund, due from the defendant, as justice and equity may require.
    This was an appeal from an order of the surrogate of the county of Suffolk. Elias Smith died and made the respondent, L. W. Lawrence, the executor of his will, and bequeathed his personal estate to J. W. Smith. Subsequently, J. W, Smith also died, having by his will appointed the respondent, L. W. Lawrence, and the appellants, J. L. Smith, C. Smith and L. Livingston, jointly, his executors; all of whom look out letters testamentary thereon. The respondent having neglected to render an account of the estate of the first testator, his co-executors of the will of J. W. Smith, applied to the surrogate by whom the letters testamentary were granted to the respondent, for an order requiring the respondent to render such account; and he was duly cited to render his account accordingly. The parties appeared before the surrogate, and the respondent resisted the application, upon the ground that, as he was a co-executor with the appellants of the estate of the legatee, he could not be called upon by them to render an account, in the surrogate’s court, of the estate of which he was the sole executor. The surrogate sustained the objection, and dismissed the application.

      L. Livingston, for the appellants.

      H. Ketchum, for the respondent.
   The Chancellor.

The statute provides that an executor or administrator may be required to render an account of his proceedings, by an order of the surrogate, to be granted upon an application from some person having a demand against the personal estate of the decedent, either as creditor, legatee, or next .of kin, or by some person in behalf of a minor having such claim, or without such application. (2 R. S. 92, § 52.) This provision of the revised statutes is not new. For this court has decided that, previous to the revised statutes, the surrogate had power to call an executor, as well as an administrator, to an account; and also to compel a distribution of the personal estate of the decedent according to law, or to the directions of the testator. (Foster & Bouck v. Wilber & Olmstead, 1 Paige’s Rep. 537.)

Some doubt is thrown upon the power of the surrogate to decree distribution, where the executor or administrator does not apply for a final settlement of his account, by the peculiar phraseology of the 71st section, of the article of the revised statutes relative to the duties of executors and administrators, in rendering an account and in making distribution to the next of kin. (2 R. S. 95.) There can be no doubt, however, as to the right of any person interested in the estate to call the executor or administrator to account, under the provisions of the fifty-second section of that article; even where such executor or administrator neglects or refuses to take the necessary proceedings to make the account final, so as to save him from further litigation and trouble.

In the present case the surrogate probably will not have the power, after the account shall have been rendered, to decree the payment of any balance which may be found due to the estate of J. W. Smith, the legatee, from the estate of B. Smith. But upon the settlement of the accounts of the respondent, as the sole executor of E. Smith, the balance found due to the estate of the legatee will be assets in the hands of the respondent, as one of the co-executors of that estate, and the creditors, and others entitled to share in that estate, will then be enabled to understand their rights. The respondent is, therefore, bound to render such account, unless it is clear that the fact, that he is such co-executor of the will of the legatee, is an objection to the jurisdiction of the surrogate to call him to account, upon the application of his co-executors ; which question I will now proceed to consider.

In the common law courts one executor, or administrator, cannot bring a suit against his co-executor, or co-administrator, to recover a debt which was due from the latter to the testator, or intestate. For each has the same right to the possession of the fund which belongs -to both, as the representatives of the estate of which they are joint trustees. And the effect of a common law judgment, in favor of one against the other, would be to give to the former the right to issue an execution and transfer the whole fund to his own exclusive possession. ' A court of equity, however, from its peculiar mode of administering justice, can settle the questions as to the fact of indebtedness, and as to the amount due from one of the executors to the estate of which both are trustees, whenever the decision of those questions becomes necessary, without changing the possession of the fund. And when the amount of such indebtedness is ascertained, the court may make such disposition of the fund as justice and equity shall then require. (Decker v. Miller, 2 Paige's Rep. 150.)

The object of proceeding before the surrogate, in the present case, appears to be for the purpose of ascertaining the amount of the fund in the hands of the respondent, as the sole executor of Elias Smith, and which belongs to the estate of J. W. Smith, as the residuary legatee. And I see no reason why that cannot be done in this proceeding, before the surrogate, as well as in the more expensive mode of filing a bill in this court. The respondent, too, if he wishes it, may have a final settlement of his account, as the executor of E. Smith, upon this proceeding, and with the same effect as if he had been cited to account by the legatee himself. For the statute authorizes an executor, or an administrator, whenever he is required to render his account, either upon the application of some person interested in the estate of the decedent, or upon the order made by the surrogate without such application, to apply for a citation requiring all the creditors, next of kin and legatees, to attend the settlement of the account; so that the same may be final and conclusive as to all persons interested in the estate of the testator or intestate. (2 R. S. 93, § 60.) It is true, the statute directs that when the account of the executor, or administrator, has been rendered and finally settled, if it appears that any thing remains in his hands to be paid or distributed, the surrogate shall make a decree for the distribution thereof, to the persons entitled to the same, according to their respective rights. (Idem, 95, § 71.) But the fact that the executor is himself entitled, with others, to the whole, or to a part, of the fund to be distributed, as one of the representatives of another estate, forms no objection to the making of such a decree, by the surrogate for distribution. Indeed the same apparent difficulty might have occured if the- executor had been cited to account by a creditor of the testator. For, the surplus of the estate, after satisfying the creditors’ claims, would belong to the executors of the residuary legatee, of which executors the appellant is one. In either case, the proper decree, to be made by the surrogate, upon a final settlement of the account of the executor of E. Smith, would be to declare, and determine the balance, in the hands of the executor of E. Smith, belonging to the estate of J. W. Smith as the residuary legatee; and to direct such executor to apply it, in the due course of his administration as one of the executors of the estate of such residuary legatee. And then, when he was afterwards Called to account as one of the executors of sych legatee, the decree of the surrogate would be the evidence of the amount due from him, to the estate of such legatee, in his character of executor of the estate of Elias Smith.

If a bill in chancery was to be filed, for an account of the estate of E. Smith, and to ascertain the balance in the hands of his executor, belonging to the estate of the residuary legatee, it must necessarily be filed by a part of the executors, instead of the whole. And I can see no valid objection whatever to a similar proceeding before the surrogate, where the object is the same. In the case of Glen v. Webster and Wilson, (2 Lee's Eccl. Rep. 31,) which came before the arches court of Canterbury, in 1754, an executrix, who was also interested in the estate as residuary legatee, was permitted to sustain a suit in the ecclesiastical court, against her co-executors, for her share of the estate, although no such suit could have been sustained in a court of law. And in Paul v. Nettleford, (2 Adams' Eccl. Rep. 237,) Sir John Nicholl sustained an application, by an executor, to the prerogative court, against his co-executor, for an inventory of the estate of the testator. It is true the party obtaining the citation, in each of those cases, had a personal interest in the application. But in the case of Huggins v. Alexander, which came before the prerogative court more than one hundred years since, the- executrix was compelled to exhibit an inventory of the estate of the testator, upon the application of her co-executor, who had no personal interest in the estate. And similar decisions appear to have been made, in the same court, in the cases referred to by the advocates of the applicant, upon the argument of the case last mentioned. (2 Adams' Eccl. Rep. 238, n. a. See also Lucas v. Seale, 2 Atk. 56.)

Under the provisions of the statute, the surrogate is authorized to call the executors or administrators to account, without an application by any one, by a proceeding instituted by him ex officio. And it is probably his duty to do so, where infants are concerned, after a reasonable time has elapsed for the settlement of the estate; especially if he has reason to apprehend that the interest of the minors requires such an ex officio proceeding. In the present case, I think, the appellants, in their characters of executrix and executors of J. W. Smith merely, had such an interest in the estate of E. Smith as to authorize them to cite their co-executor, in his character of representative of that estate, to account for the administration thereof, to enable them to ascertain the amount in his hands, as such representative, which justly belonged to the estate of their own testator.

The order dismissing the proceedings must therefore be reversed, with costs to be paid by the respondent. And the proceedings must be remitted to the surrogate, with directions to him to enter an order requiring the respondent to render an account of his proceedings, as the executor of Elias Smith; and that the surrogate proceed upon such order as directed by the statute, and according to the practice of the court in such cases.


text:
    Rogers vs. Toole and others.
    Where the defendant had obtained an order, requiring the executor of the deceased complainant, to show cause before the court, upon a regular motion day, why the suit should not be revived in the name of such executor, or in default thereof, that the bill should be dismissed, and the counsel for the deceased complainant thereupon stipulated with the solicitor for the defendant, that the time for showing cause should be extended 20 days; at the expiration of which time, no court was held, or appointed to bo held, at the place specified in the order to show cause; Held, that it was irregular for the defendant, on the next motion day thereafter, to take an order by default, dismissing the bill, with costs to be paid by the executor, out of the estate of the deceased complainant.
    As a general rule, where notice of a motion is given, or where an order to show cause is obtained and served upon the adverse party, and he neglects to appear and oppose the application, the specific relief, mentioned in the notice or order, and no other, will be granted.
    But if the adverse party appears to oppose the application, and the applicant is not entitled to the particular relief specified, the court, under the alternative part of the notice, or order, may give him such further or other relief as he may be entitled to, upon the facts of the case.
    Where the sole complainant in a suit dies, and the personal representatives of the decedent have no interest, in the subject matter of the litigation, which would entitle them to revive the suit, the personal estate of the testator or intestate whom they represent, cannot be charged with the costs which have accrued in the suit previous to the abatement, or with the costs of an application to compel them to revive.
    This was an appeal from a decision of the vice chancellor of the second circuit, refusing to set aside an order dismissing the bill of the deceased complainant, with costs to be paid out of his estate, by his personal representative. In May, 1842, the complainant died, and, no proceedings to revive the suit having been taken, Thomas Toole, and four others of the defendants, who had appeared in the cause, but who had not yet put in their answers, applied to the vice chancellor of the second circuit, before whom the bill was filed, and obtained an order that D. L. Rogers, the executor of the complainant, show cause, before such vice chancellor, on the 9th of October, 1843, why the suit should not stand revived in the name of such executor; or, in default thereof, that the complainant’s bill be dismissed, so far as the interests of the said executor were concerned; and, that the petitioners, within fifteen days from the date of such order, serve a copy thereof on the said executor. The order not having been served as directed, the petitioners, on the 14th of August, 1843, obtained, a further order requiring the executor to show cause, at the court house in Clarkstown, on the 9th of November then next, and that copies of that and of the previous order be served on the executor, on or before the 2d of October. Service of these orders was. made upon W. N. Dyckman, who was the solicitor for the deceased complainant, and the notice was directed to him generally; and on the 9th of November, he signed a stipulation, as solicitor for the complainant, consenting that the order to show cause should stand over until the 20th of that month, at the court house in White Plains, without prejudice to the rights of any of the parties. Dyckman, when he gave the stipulation, had not been consulted or employed by the executor, in relation to the petition, but supposed that the order had been served upon the executor personally. On the 20th of November, Dyckman employed J. S. Mitchell to attend upon the motion at White Plains, when a further stipulation was entered into and signed by the latter, as counsel for the complainant, consenting that the time mentioned in the orders be extended twenty days from the 24th of November, 1843, and admitting due service of the orders. But no place for showing cause was fixed in the latter stipulation, nor was there any court appointed to be held, by the vice chancellor, on the day to which the time for showing cause was extended by this last stipulation. On the 9th of January. 1844, the solicitor for the petitioners appeared at the vice chancellor’s court, at Poughkeepsie, and took the order complained of, ex parte. The vice chancellor having refused to vacate or modify the order, D. L. Rogers, the executor, appealed from his decision. ’

      J. Rhoades, for the appellant.

      W. Silliman, for the respondents.
   The Chancellor.

If the counsel for the appellant is right in supposing that the executor of the complainant was .not the proper person to revive the suit, the order of the 9th of January, 1844, was not only technically irregular, but it was wrong upon the merits. If it had been entered.in the terms of the order to show cause, however, which was the only order the petitioners had a right to enter upon a default, the executor himself would have had no right to complain of the final order. For the order to show cause asked for no costs against the executor, or against the estate which he represented, but only asked that the bill should be dismissed so far as the interests of the executor of the complainant were concerned.

From the bill, which the respondents exhibited, to the court, on this appeal, although it was not read upon the motion before the vice chancellor, I should infer that the judgment recovered against the heirs and devisees of I. Bonnet, junior, was recovered by the complainant in the character of surviving executor of Henderson, for moneys received by Bonnet in his lifetime, as a co-executor of the will of Henderson; and which moneys had been applied by Bonnet to his own use, in violation of his trust. If so, I do not see any interest which the executor, of the surviving executor of Henderson, can have in the subject matter of the litigation, which would authorize him to revive this suit. And if David L. .Rogers has no right to revive and continue this suit, in his character of executor of the complainant, neither he, nor the estate which he represents, can be charged either with the costs which had accrued in the lifetime of the complainant, or with the. costs of the application to compel him to revive. The 17th section of the title of the revised statutes relative to granting letters testamentary and of administration, (2 R. S. 72,) expressly provides that no executor of an executor shall, as such, be authorized to administer on the estate of the first testator; but in such cases, letters of administration de bonis non, with the will of the first testator annexed, are to be granted. (See also 2 R. S. 114, § 14.)

Again; if this was a proper case for calling upon the personal representative of th.e complainant to revive the suit, and to charge the estate of the deceased complainant with costs, in case his executor should neglect to revive within such reasonable time as the court should direct for that purpose, the order to show cause, or the prayer of the petition upon which it was founded, should have distinctly notified the executor that the petitioner would ask for costs of the suit, to be paid by the estate of the decedent, in case the executor should not revive the suit. And a copy of the petition, as well as of the order founded thereon, should have been served upon the executor a reasonable time' before the day appointed for showing cause.

As a general rule, when a notice of a motion is given, or an order to show cause is served upon the adverse party, and he neglects to appear to oppose the motion, or to show cause against the relief asked for in the order, the party giving the notice or obtaining the order to show cause, is only entitled to such relief, by default of the adverse party, as is specified in the notice, or as is stated in such order. And the former cannot, under the alternative clause for other relief, not specified, obtain further or different relief, which he has not apprised the adverse party that he intended to ask for. But where such application is opposed, if the applicant is not entitled to the particular relief asked for, the court, under the alternative clause, may give him such further or other relief as the facts presented to the court entitle him to, under all the circumstances of the case. This rule is adopted for the convenience of the court, and to save to the adverse party the useless expense of attending to oppose a motion, or to show cause against an order, when he has no right to oppose, or has no interest in opposing, what is specifically asked for by the other party. In this case, therefore, if the proceedings of the respondents, in obtaining the order of January, 1844, had been strictly regular in other respects, the court should have gone no further than to make the order, to show cause, an absolute order that the bill of complaint should be dismissed, as far as the interest of the executor was concerned; in the language of the order to show cause. And the subsequent clause in the final order of January last, directing that the petitioners should recover their costs in the cause, and upon the petition, out of the estate of the deceased complainant, was not authorized by the order to show cause, of which service was admitted in the stipulation of November, 1843; even if.that stipulation is to be considered as made by the counsel for the appellant, and not as counsel for the deceased complainant. Besides; the time for showing cause being, by the stipulation, fixed for the 14th of December, when no court was appointed to be held, it was irregular to take an order by default at the second regular motion day thereafter, without any further notice to the executor, or to his solicitor, that the motion was to be made at that time. For, as he had no opportunity to show cause at the time specified in the stipulation, he was not in default in not appearing to oppose the application.

For these reasons, the vice chancellor should have set aside the order of January, 1844, as irregular and unauthorized. His decision in refusing that application must therefore be reversed; and the prayer of the appellant’s petition must be granted, with ten dollars costs, together with his taxable costs on this appeal.