text:
    Garlick vs. Strong & Garlick.
    Aug. 27.
    Where the husdand, who was about to sell his estate, agreed with his wife, and with the knowledge of the purchaser, that if she would join in a deed of the premises so as to release her dower, she should receive a certain portion of the purchase money as her separate property, free from the of the husband; and the purchaser gave a note to the wife for her share of the purchase money, and the agent for the wife, in whose hands the note had been placed for her use, loaned a part of the money received on the note, and took a bond and mortgage directly to the wife ; and the afterwards assigned the mortgage to the original purchaser of the without the assent of the wife or her agent; Held, that in equity the bond and mortgage belonged to the wife, and that she was entitled to the money due thereon, for her separate use.
    A post-nuptial contract between husband and wife, by which property is set apart for her separate use, although void at law, will be sustained in equity.
    Where a general demurrer to the whole bill is overruled for want of equity, the defendant may demur ore terms upon the ground that the suit is brought by a feme covert in her own name, when she should have prosecuted by her next friend.
    Where a mere formal objection to the bill was made by demurrer ore terms, the complainant was permitted to amend.
    A party availing himself of the right to demur ore terms, must pay the costs of the demurrer on the record.
    The bill in this case was filed by the wife against her and C. Strong, to restrain the latter from collecting a bond and mortgage assigned to him by the husband, but to be the séparate property of the wife. The defendants demurred to the bill for want of equity. They also alleged, ore terms, as a cause of demurrer, that the suit was brought by the wife in her own name, when she ought to have sued by her next friend. The facts are stated in the opinion of the chancellor.

      II. Van Derlyn,

    for the complainant. The note of Strong for $1000, given to the complainant upon the consideration of her releasing her right of dower, was in equity her sole and separate property, free from the control of her husband; and it is not essential that a stranger should have been appointed her trustee, as her husband will be considered as her trustee, in equity. It will at once be acknowledged, that if the note had been drawn payable to a stranger, in trust for the sole and separate use of Mrs. Garlick, her husband would, both at law and in equity, have been deprived of all power over the note. Mrs. Garlick paid a valuable consideration to Strong for the $1000. Her right of dower was her separate estate, over which her husband had no power. He could neither release nor encumber it by any act of his. It was the humane provision of the law for her widowhood. Upon being required to release it, by Strong and her husband, she had a right to put a value on her own separate property, and to require that the compensation to be paid for her right of dower should stand in lieu of it, as her separate property. To this both the defendants expressly agreed, and they obtained from Mrs. Garlick, upen the faith of their promise, the release of her right of dower.
    It was not necessary in equity that the name of a stranger should have been inserted in the note as the trustee of Mrs. Gar-lick ; for where a trustee is omitted to be appointed, the husband will be considered in such cases the trustee of his wife. (2 Kent's Comm,. 136.) In the case of Bennett v. Davis, (2 P. Wms. 316,) I. Strong devised lands to his daughter, the wife of Bennett, to hold the same to her separate use, exclusive of her husband. Soon after the testator’s death, Bennett being a bankrupt, the estate in question was assigned by the commissioners to the defendant Davis, in trust for the creditors; and upon Davis bringing his ejectment, the wife of Bennett filed her bill against Davis and her husband, to compel them to assign over the estate to her separate use. It was objected, on the part of Davis, that he being a creditor and having the law on his side, it would be hard to take the benefit of the law from him; and that though the testator might intend these lands for his daughter's separate use, yet that such intention was not executed according to law; that although he might have devised the lands to trustees for her separate use, yet the question was, not what he might have done, but what he had done. The master of the rolls took it to be a clear case that it was a trust in the husband, and that there was no difference, where the trust was ■ created by the act of the party, and where by the act of law. He said, “ If I should devise that my lands should be charged with my debts, my heir would be but a trustee, and have no remedy for those debts but in equity. So in this case, there being an express declaration that the wife should enjoy those lands to her separate use, by that means her husband, who would otherwise lie entitled to take the profits during the coverture, is now debarred and made a trustee for the wife. Also where the testator had the power to devise the lands to trustees for the separate use of the wife, this court, in compliance with his declared intention, will supply the want of them, and make the husband trustee; and the defendant, the assignee, can have no better right than the husband, and must join in a conveyance to a trustee, for the separate use of the wife.” That decision was made, not upon the ground that the premises were given to Mrs. B. by devise, for there is nothing peculiar in a devise distinct from any other mode of conveying property to the separate use of á feme covert; but it was upon the ground of carrying into effect the intention of the devisor. To effect this, the husband was considered to be the trustee of his wife, and was thereby prevented from taking the property under his marital rights at law. And if the court would, in order to give effect to the intentions of the devisor, make the husband himself to be the trustee of his wife, with much stronger reason would they consider Garlick, in this case, to be the trustee of his wife. Mrs. Garlick is not like Mrs. Bennett—the mere passive object of another’s bounty ; but she has entitled herself to the property in question by paying therefor with her own property. No technical words are necessary to make it a separate trust; for where an estate was devised to the husband for the livelihood of the wife, it was held to make him a trustee. So in the bequest of a legacy to a feme covert, the words “ her receipt to be a sufficient discharge to the executors,” makes the husband a trustee for her. And a present to the wife by the husband’s father, or even by a stranger, has been considered as a gift to her separate use. (1 Mad. 37C.) In general, however, to prevent the operation of the mari'-.il right, a clear intention that it shall be to her separate use must appear. In equity a wife may enter into a contract with her husband, for a valuable consideration, for the transfer of property from him to her. In the case of Livingston v. Livingston, (2 John. Ch. R. 537,) the wife was seised in fee of a house and lot, and she and her husband agreed by paroi that the husband should buy another lot and build a house thereon in her name, and that her first mentioned lot and house should be sold, and out ■of the sale moneys the husband should be paid for the costs of erecting the new house, &c.; the husband bought the lot in his wife’s name, and built a house on it, and then the wife' died; this court, on a bill filed by the husband against the heirs of the wife, ordered the first lot and house to be sold to pay the husband for his expenses in erecting the house, &c. Though a deed from husband to wife is void in law, yet equity will enforce its provisions where it is for the purpose of making a provision for the wife during her widowhood, especially where the wife had, by an ante-nuptial contract, releas-, ed all right of dower to arise under the marriage. (Shepherd v. Shepherd, 7 John. Ch. R. 57.)
    The following authorities show that the release of the right of dower was a sufficient consideration to support the promise of the defendants to Mrs. Garlick : If a wife relinquish her right of dower in lands of her husband, in consideration of which, other property is settled to her use, the last conveyance will be supported even against the creditors of her husband. (4 Munford, 251. Am. Ch. Dig. 86.) Where a married woman relinquishes her right of dower, under an agreement that other property shall be settled on her in compensation, such agreement will be good, the relinquishment of the right of dower being a sufficient consideration. (Taylor v. Moore, 2 Randolph, 563. Harvey v. Alexander, 1 Id. 219. Am. Ch. Digest, 87.)
    The Carr bond and mortgage was in equity the separate property of ,the complainant, being given to secure a loan of $600, made by her to Carr out of the $1000 paid by Strong on his note; and her husband became her trustee in equity, and had no power to assign the same to the defendant Strong. It follows that Garlick had no right to assign or discharge that bond and mortgage, and that the pretended assignment made thereof by Garlick to Strong was void in equity. Stron g is not an innocent purchaser of the Carr bond and mortgage. He had full knowledge of the equitable interest of Mrs. Garlick.
    The defendants object, 1st. that the complainant should have sued by her prochein ami; 2d. that John Pellett ought to be a party; and 3d. that James M. D. Carr ought to be a party. These objections are to matters of form, and the defendants cannot avail themselves of them at the hearing. A demurrer must express the several causes of demurrer. (Harrison’s Ch. Pr. 211. Cooper’s Eq. Pl. 112. 2 Maddock’s Ch. Pr. 225.) A demurrer, ore terns, must be to that to which the defendant has demurred on the record. If the cause of the demurrer on record is not good, he may at the bar assign other causes, but he cannot demur, ore terns, upon a ground which he has not made the subject of demurrer on record. (Pitts v. Short, 17 Vesey, 214. 2 Mad. Ch. 227.) The demurrer of the defendants assigns no cause but the want o' equity in the complainant’s bill. ' No want of parties nor of a prochien ami is assigned in the demurrer on record, and cannot now be assigned, ore tenus. According to the decision of Lord Eldon, in Pitts v. Short, it would be taking a new ground of demurrer, and relying on mere matters of form, when the demurrer on record is to the merits of the bill. The defendants have waived all objections of form, by not assigning them on record. The complainant has noticed for a hearing the demurrer on record, and ought not now to be delayed by questions of form, or any other objections than those assigned on the record.
    The objection of not suing by a prochien ami, taken on the argument of the defendants, has nothing to do with the rights of the complainant. The whole and only object of a prochien ami is to secure the defendants costs in case they should prevail against the complainant. But that may be waived by them ; and if they had assigned that cause in the demurrer on the record, the complainant would immediately have applied to this court for leave to proceed by a prochien ami' duly appointed, and to have the bill amended accordingly, and this without costs ; for if a demurrer, ore terns, is allowed, it is without costs. (2 Mad. 227.) The defendant has waived all objection for want of parties, by not assigning it as a ground of demurrer on the record, and naming on the record who the parties were, so as to enable the complainant to make them parties, if so advised. {Idem. 233.) If the chancellor should decide that the defendants have a right, ore terms, to demur for matters of form, and that either of the objections urged by them are well taken, then the complainant asks leave to amend, and that without costs. In case a demurrer for want of parties is well taken, the plaintiff is entitled to leave to amend. (2 Chan. Cas. 197. Mitf. 174.) Formerly bills were dismissed when the proper parties were not brought in. The practice in England and this country now is, to order the cause to stand over, that the necessary parties may be added. (Colt v. Lasnier, 9 Cow-en, 334.)
    The complainant is entitled to the Carr bond and mortgage as a provision for her support, (she being deserted and abandoned by her husband) upon the principle of the wife’s equity against the defendants in this suit. (Haviland v. Myers, 6 John. Ch. R. 180.) But if the complainant is not entitled, under either of the points, to the property in question as her separate property, nor to a provision out of it, the defendant ought to be decreed to re-convey to her her right of dower in the premises, upon the ground of a failure of the consideration, brought about by the fraud and injustice of the defendants.

      J. Clapp, for the defendants.
    The bill is insufficient, and ought to be dismissed for want of proper parties. ' The complainant ought to have sued by prochien ami. At the filing of the bill she was a feme covert.. A wife may institute a suit against her husband, but the bill must be exhibited in her name, by her next friend.- (Bingham, 270. Cooper’s Eq. Pl. 29. 2 Kent’s Comm. 137. Clancy’s -Rights of Women, 358.) John Pellet ought to have been made a party. The complainant states that Pellet was her trustee. If the note and bond were the separate property of the complainant, the title is in Pellet, her trustee, who must be a party. (Bingham, 199. 8 T. R. 546. Marshall v. Ration, Coop. Eq. PI. 34.) Carr gave the bond and mortgage in question. He is the debtor, where different parties claim to be the creditor. The decree will affect Carr; it will establish his creditor, and direct him when and to whom to pay the money due on the bond. He ought therefore to have been made a party. (Cooper’s Eq. Pl. 33. Id. 37. 2 Mad. 180.) The want of proper parties, if apparent on the face of the bill, is ground of demurrer, or it may be objected at the hearing. (Cooper’s Eq. Pl 33. 2 Mad. 173, 293. 2 John. Ch. Rep. 238.) The complainant’s remedy at law is complete, without recurrence to equity. The bill seeks to avoid the assignment of the bond and mortgage by Garlick to Strong. And the complainant asks for a decree declaring that she is entitled to the proceeds of the bond and mortgage, and to the four hundred dollars, part of the one thousand dollars, and for the appointment a trustee, &c.
    This is not a bill of foreclosure. In fact the principal money will not be due until the first day of July, 1833. And there" are but forty-two dollars interest due, the payment whereof Carr is ready and willing to make to the complainant. Where, then, is the equity 1 Upon what principle is the interference of chancery required l If the complainant is entitled to the money on the bond and mortgage of Carr, what prevents her from receiving it, when due 1 If she is entitled to the interest now due, why not receive it 1 Especially as Carr, the mortgagor, is ready to pay. If Pellet is the trustee of the complainant, which the bill charges, and the defendants by their demurrer seem to admit, why ask of chancery the .appointment of a trustee l If Garlick had no interest in the bond and mortgage, how could his assignment to Strong affect the right of the complainant l Such assignment would be nugatory and void, without a decree from chancery. How can a void assignment affect the interest of the complainant1? If the complainant holds this bond and mortgage for her separate use, she holds them as a feme sole, and her husband has no power over them. Carr, it seems, is ready and willing to pay, and would pay to the complainant, but for the apprehension of Garticle's assignment. If this is a reasonable fear, why did he not file his bill of interpleader 1 (1 Mad. 173.) But the assignment is no obstacle to the complainant’s enforcing payment of the bond. It would be no defence for Carr in a suit at law.
    If the complainant holds the bond and mortgage as a feme sole, the assignment by Garlick must be viewed as the act of a stranger. The giving and receiving .of an assignment by strangers cannot affect the rights of the creditor and debtor; and can be no impediment to the collection of the debt by the rightful creditor.
    Strong is not in possession of the mortgaged premises, nor has he the bond and mortgage. The land is in the occupation of Carr, the mortgagor, and the complainant has now, and has always had the possession of the bond and mortgage. Strong has neither received the principal nor interest, and if the complainant’s position be true, that this is the separate property of the complainant, he cannot enforce the payment against Carr. It was not even attempted to give Strong a greater interest than the husband had.
    . As to the payment of the $1000 by Strong, it was made to Pellet, the agent and trustee of the complainant; and with her approbation. What then, is there for a decree to operate on 1 Or what necessity for coming to chancery 1 A court of law is entirely adequate to afford redress. The arrangement between the parties, as to the $1000, was not a settlement on the wife. The note delivered to her belonged to her husband. The pretended agreement between Garlick and his wife was not in writing; it rested in paroi. It was without consideration, or at least the pretended consideration ; the release of the right of dower being very inadequate to the property claimed.
    Garlick had taken the complan ant to wife thirty-three years ago. He took her without any property. The bill does not pretend she brought her husband any thing in marriage. He had supported her upwards of thirty years, and had children dependent upon him. His property, in this state of things, was reduced .to a remnant of $2000. The complainant demanded $1000, one half her husband’s estate, as the condition of releasing her doubtful and inchoate right of dower; and this without relieving her husband from any marital obligation, or from her subsequent claim of dower, or share of his personal effects, &c. This $1000 is now claimed as a settlement on (he wife. The requisition was unconscionable and unjust.
    At common law a married woman was not allowed to possess property independent of her husband, but in equity she is allowed, through the medium of a trustee, to enjoy property as freely as a feme sole. (2 Kents Comm. 136.) All personals, as money, goods, cattle, &c. that are the property, and in possession of the wife, at the time of the marriage, absolutely, vest in the husband. (Bingham, 208.) And whatever the wife, during coverture, earns by her labor, is solely her husband’s. (Bingham, 218. Udall v. Kenney, 3 Cowen, 599.) The husband may release the wife’s bond, legacy or judgment. (Clancey, 110.) So a note given to a feme covert, though it be for a debt due to her while sole, is legally payable to the husband; and the property vests absolutely in him, and will not go to the wife on a dissolution of the marriage. (Bingham, 208. 8 Mass. Rep. 229.) A husband cannot make a deed to his wife, and a promise to her is void. (7 John. Ch. Rep. 60.) These are long established and fundamental rules of law regulating coverture. It is not in the power of the parties to do away the law of coverture. Their agreement to evade this law is unavailing and void. The law considers husband and wife as but one person; and they cannot enter into a contract between themselves, changing their relations as husband and wife. Gifts to the wife enure to the benefit of the husband, and his consent cannot vary his right. The law vests the property, and he may take it. The note in question then, though delivered to the complainant, ■and in her name, became the property of her husband, and her subsequent settlement with Strong was done by her as the agent, and with the assent of her husband.
    The complainant contends, that though this may be law, a different rule prevails in equity. That here, by the mere oral consent of the husband, his marital rights over his wife’s property may be divested, and that even without the intervention of a trustee, husband and wife may become sole persons, so far as respects personal property, and may hold the same, independent of each other. The principle of the complainant goes the full extent of this proposition. Nay, farther, that the husband may, by an oral declaration, put in bis wife’s hands his own property, to be held independent of him, and that the court of chancery will consummate the agreement by making the same a settlement, and providing the requisite trustee. This is against law. (Marshall v. Rutton, 8 Term Rep. 545.) There is no principle of equity which goes this length. It-is true, that in the case of a devise of real or personal property to the wife of another for her separate use, the husband is considered the trustee of the wife, and the devise is allowed to take effect in that way, “ in compliance with the intention of the donor.” (Clancy's Rights of Women, 257. 1 Peer Wms. 125. Bing. Rep. 187. 2 Peer Wms. 316.) These are all cases of devises.
    So too, in the English chancery, there are some cases, though Clancy says, “ there is more doubt in such cases,” where the gift proceeds from himself, as a gift of paraphernalia, or trinkets, or savings out of pin money, in which cases the husband has been considered the trustee of the wife.
    (1 Atk. 270. 3 Id. 393. 3 Peer Wms. 334.) But in the case of trinkets, &c. given by the husband to his wife, he may alien them in his life time. (Bingham, 275.) Indeed, the English chancery has once, under particular circumstances, allowed a husband to set over South Sea annuities in the name of, and to the separate use of his wife ; and considered the property hers. (5 Vesey, 71.) But such claims are viewed with great jealousy. (Clancy, 260.) Besides, the delivery to the complainant of a promissory note did not constitute a gift; it v/as a promise to pay, to one who could only receive the promise for the benefit of her husband. A gift of personal property can only be consummated by the actual delivery of the chattel or the money ; and until the actual delivery of the thing promised, the party may revoke his promise. (7 John. Rep. 26. 2 Id. 52. 18 Id. 145.) The language of Jones, chancellor, in McCartee v. The Orphan JLsylum Society, (9 Cow. 463,) is strong and explicit.. He says, “So the wife is incapable of acquiring personal property for her separate use by a direct transfer of it to herself, for eo instanti, that it is conveyed to her, the marital right vests it absolutely in him ; yet a settlement upon her by vesting it in trustees for her separate use, may effectually secure it for her benefit, and against his dominion and control.” The bond and mortgage given by Carr to the complainant were the property of her husband. If they were a chose in action of the wife, they became Garlick’s, as a marital right. It is not pretended by the complainant there was any agreement between her and her husband, as to the bond and mortgage. This, then, is the case of property acquired by the wife during the coverture, and not by devise, or gift for a settlement; and therefore it belongs to the husband, by virtue of his general rights as a husband. It is not a chose in action of the wife, for it would not survive to her ; but if a chose in action, still the money due on the mortgage is subiect to the disposition of the husband only. (Bingham, 216. 2Atk. 208.)
    The wife cannot resort to equity for provision out of the bond and mortgage. Equity never interferes with the legal . rights of the husband, unless its aid is required by the husband or his assignee. If the bond and mortgage in question be considered the wife’s separate property, still Garlick, her husband, while he maintains her is entitled to the interest. (Bingham, 218. Udall v. Kenney, 3 Cowen, 591. 2 Vesey, 561.) It is not stated in the bill that Garlick has ever refused to support his wife. He must be presumed to perform his duty in this respect. He did not turn her away. She left his house voluntarily and went to her son-in-law Andrus’. If she went away on the ground of ill usage, Garlick is liable for her support. He therefore is entitled to the interest on the bond and mortgage. If Garlick had the right to the interest, he could transfer that right to Strong. It is expressly stipulated in the assignment that he transfers only such power over the bond and mortgage as he might exercise. The assignment was therefore valid, at least so far as regards the interest. The complainant probably considers the bond and mortgage as a chose in action assigned to Strong, and seeks provision for herself and relief under the decision in the case of Udall v. Kenney, (8 Omen’s Rep. 591.) The principle recognized in that case is, that where the husband or his assignee seeks the aid of chancery to reduce the wife’s choses in action to possession, chancery will, on the ap - plication of the wife, see, before it grants the husband or his assignee relief, that he makes suitable provision for his wife. The rule is, “ That the court of equity will not interrupt the legal title of the husband to the property of the' wife, unless called upon by him to lend its assistance; but if he asks for equity, he must do equity for his wife.” (Bing. 217. 3 Cowen, 599, per Savage, Ch. J. Howard v. Moffat, 2 John. Ch. R. 208. 1 Mad. 484.) It will be found in the cases under this head, where chancery has interfered in behalf of the wife, that the husband or his assignee was disposing of, or attempting to reduce to possession the choses in action of the wife, or her fortune, which came to the husband with her on her marriage. The bill is premature ; the defendants have not yet sought the aid of chancery. The Carr bond and mortgage did not come with the complainant in marriage and is no part of her fortune. It is a part of her husband’s estate, which, in equity and conscience, belongs to him. The complainant’s only claim is a pretended oral gift of the property in question. It furnishes no ground for the interference of equity. The husband has the right to it for the maintenance of himself and of his wife and children, for which" he remains bound. A demurrer may express the causes, yet, says Kent, chancellor, (6 John. Ch. Rep. 149,) “ when some causes are assigned, others maybe added ore tenus at the hearing.” [2 Mad. 287.)

   The Chancellor.

The facts stated in the complainant’s bill are sufficient to entitle her to the relief asked for by that bill. She alleges that the husband was seised of a real estate worth five or six thousand dollars, parts of which were sold by him from time to time, and on which sales she relinquished her right of dower to the purchasers, at his request. That a part of the estate, worth about-$2000, was afterwards sold to the defendant Strong; and the complainant refused to join in the conveyance and relinquish her right of dower in the property, unless a part of the consideration money could be secured for her separate use, the husband having wasted most of his property by intemperance,. It was accordingly agreed between the husband and wife, with the knowledge of Strong, that she should execute and acknowledge the conveyance, relinquishing her dower, and should receive out of the price of the property to be paid by Strong,- $1000 as her separate property, free from the power and control of her husband. Strong agreed to give his note to the complainant for her share of the purchase money, payable in a few months thereafter. She executed and acknowledged the deed, and Strong gave her the note for $1000 in pursuance of the agreement. She put the note into the hands of Pellet, her son-in-law, as her trustee, to receive the money of Strong when it became due, and to put it out at interest for her separate use. An arrangement was afterwards made between Pellet and Strong, with the sanction of the complainant, by which $600 of the debt was paid over to J. M. D. Carr, by way of loan to him, to be secured by bond and mortgage, for the use of the complainant. A bond and mortgage was accordingly taken by Pellet from Carr, but in the name of the complainant; and the residue of the $1000 was also settled between Strong and Pellet as the trustee of Mrs. Garlick. The complainant also alleges, that she having been compelled to leave her husband on account of his intemperance and other bad conduct, he assigned the bond and mortgage of Carr to the defendant Strong, who has given Carr notice not to pay it to her trustee, and claims to recover it for his own use. It is well settled that a post-nuptial agreement between the husband and wife, by which property is set apart for her separate use, will be sustained in equity though void at law. (Atherly on Mar. Sett. 161. 2 Kent’s Comm. 166.) The relinquishment of the dower in this case was a sufficient consideration to support this agreement, on the part of the husband. (Taylor v. Moore, 1 Rand. Rep. 563.) Although as against creditors, whose debts existed at the time, post-nuptial agreements will not be permitted to stand beyond the value of the consideration, that principle cannot be applied to this case, which appears to be an attempt on the part of these defendants to defraud the wife of the monies to which she is equitably entitled under this agreement. The demurrer on the record cannot therefore.be allowed.

The demurrer ore terns, however, is well taken; as the wife cannot be permitted to sue except by her next friend. If the defendants cannot sustain the demurrer on the record, they may demur ore tenus; but availing themselves of that right, they must pay the costs of the demurrer on the record. This was so held by Lord Eldon in the case of The Attorney-General v. Brown, (1 Swanst. Rep. 288,) and by this court in the recent case of Robinson v. Smith and others, decided in April last. The complainant is also to be allowed to amend by substituting a proper and responsible person as her next friend to prosecute this suit. And if she does not so amend within thirty days after payment by the defendant of the costs of the demurrer, the bill must be dismissed. In that case, however, it must be dismissed without costs; as á decree for costs cannot be made against the wife in favor of her husband.

         Ante, page 222,


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Townsend and others vs. Graves & Bostwick.
    A party who is charged with a crime, or any other act involving moral tur-, pitude, may give evidence of general good character to rebut the presumption of guilt.
    But if the party accused does not think proper to resort to that species of evidence, the adverse party or prosecutor cannot be permitted to give evidence of general bad character.
    Particular acts of bad conduct cannot be proved, even to rebut evidence of general good character.
    The refusal of the chancellor to grant a feigned issue in a proper case, when directly applied for, and where, in the exercise of a.sound discretion, an issue should have been directed, is good ground of appeal.
    It seems that a party, who has not asked for an issue in the court below, cannot sustain an appeal on the ground that such issue would have been proper.
    Issues should be directed only in those cases where there is a want of evidence, or where the evidence is contradictory, or so nearly balanced as to render an open and rigid cross-examination of the witnesses, before a jury, necessary.
    August 27.
    If the decree of the court below is affirmed, the respondent cannot have it corrected as to a point decided against him in the court below, and as to which no cros^appeal has been brought by him. §*
    This was an appeal from a decision of the late equity court for the eighth circuit, dismissing the complainants’ bill without costs. The defendant Bostwick was an agent' of the managers of the literature lottery, and kept an office at Batavia ; and the defendant Graves was either the agent or partner of Bostwick in the sale of lottery tickets at that place. The complainants, who constituted a company of 22 persons, contracted for the purchase of a package of 20 half tickets in class number two of the lottery of 1824. A certificate, containing the numbers of the tickets composing the package, was made out on the same sheet of paper which contained the subscription of the complainants for the tickets, and Met-. zer, one of the complainants, took a copy, or list of the tickets. The subscription for the tickets was made at Batavia on Wednesday, the 20th of October, 1824, the same day that the lottery was drawn in the city of New-York. But as the whole of the subscribers had not paid for their shares in the adventure, the subscription and certificate were retained in the hands of Graves, who signed the certificate as agent for Bostwick, until Monday thereafter. The bill charged that one of the combination numbers originally inserted in the list, or certificate, drew a prize of $10,000, of which the complainants were entitled to the one half; but that Bostwick, being at Canandaigua on Saturday afternoon, ascertained the result of ■the drawing, and came to Batavia on Sunday morning, when he and Graves fraudulently substituted another number ie the package and certificate in the place of the prize ticket. The defendants by their answer denied the fraud, and insisted that the certificate delivered to the agent of the complainants on Monday was the original certificate made at the time the package was selected and put up on the Wednesday previous. They further stated , in their answer that the defendant Bostwick obtained a statement of the result of the drawing on Saturday, at Canandaigua, from a traveller, which he then supposed to be correct; but which was afterwards ascertained to be incorrect; that the correct result of the drawing did not .reach Batavia until the next Tuesday, when the defendants for the first time knew that the ticket now claimed by the complainants had drawn a prize ; and that if the result of the drawing had been according to the statement which Bostwick received at Canandaigua, the ticket thus claimed would not have been a prize. The proofs were taken in open court before Judge Birdsall, of the eighth circuit, who decided the cause in favor of the defendants, and dismissed the complainants’ bill.

      H. Brown & M. T. Reynolds, for the complainants.

      E. B. Allen & D. H. Chandler, for the defendants.
   The Chancellor.

Upon the taking of testimony before the circuit judge in the court below, the complainants introduced R. S. Smith as a witness to show that the defendant Graves, about a year previous to the time when the controversy in this case arose, had been guilty of altering his account book for the purpose of defrauding a masonic lodge at Auburn. The judge received the testimony de bene esse, reserving the question as to its competency until the final hearing of the cause. It does not appear to have been expunged ; and it now comes up as a part of the testimony read upon the final hearing in the court below. It probably was not taken into consideration by the circuit judge in the decision of the cause; and as he decided against the complainants, it did not become necessary for him to express any opinion at that time as to the admissibility of the testimony. As this evidence had no bearing whatever upon the matters in issue in the cause, it was wholly inadmissible, and ought not to have been received. Neither of the cases relied upon by the complainants? counsel sanctioned the introduction of this testimony. It is a general rule of evidence, that if a party is charged with a crime, or any other act involving moral turpitude, which is endeavored to be fastened upon him by circumstantial evidence, or by the testimony of witnesses of doubtful credit, he may introduce proof of his former good character for honesty and integrity to rebut the presumption of guilt arising from such evidence which it may be impossible for him to contradict or explain. This principle is familiar to every lawyer who has had any thing to do with the administration of criminal justice. And in Ruan v. Perry, (3 Caines’ Rep. 120,) cited by the complainants’ counsel, the supreme court applied that well known principle to the case of a defendant in a civil suit, where the plaintiff was endeavoring to convict him of gross depravity and fraud, upon circumstantial evidence alone. It is not permitted, however, to the prosecutor, or the-adverse party, in such cases to give evidence of the bad character of his opponent, unless the latter has himself laid the foundation for such testimony by giving proof of general good character. And even then the prosecutor, or adversary, cannot examine as to particular facts; the general character of the defendant not being put in issue, but coming in collaterally. (Bull. N. P. 296.) In the case of Farrington v. Sinclair, (15 John. Rep. 428,) also cited by the complainants’ counsel, the evidence offered related to the same fraud which was the subject of inquiry then before the court, and which was in fact a part of the same transactiofi. The question as to the admissibility of the testimony was there so plain, that no intelligent court could ever have entertained a doubt on the subject.

This case turns whc’ly upon a question of fact, whether the combination number 1, £ 7, was actually included in the package made up on Wednesday, the day of the drawing of the lotr -tery, and of which a certificate was then prepared by Graves. On this subject there was the answer of the defendants, directly responsive to the bill, denying the fact; and the testimony of the defendants’ clerk or journeyman, swearing positively to every material allegation in the answer upon that subject. In addition to this, there was the testimony of the two Giffords, who swear that the prize ticket was offered for sale on Saturday, and that it was refused, because its combination numbers were so low. And they both swear that they particularly recollect the number from the circumstance of hearing, a few days afterwards, that it had drawn a prize; and then knowing it was the same ticket which had been offered for sale on Saturday and refused. On the other hand, I admit there were facts which formed strong grounds of suspicion that there was something wrong on the part of the defendants in relation to this business. But I think there was not sufficient to have authorized the circuit judge to say the defendants, and the witness Stow, had been guilty of wilful and deliberate perjury. And unless he arrived at that conclusion, it was impossible for him to make a decree in favor of the complainants.

The appellants suggest that a feigned issue should be awarded, if the chancellor has any doubts as to the question of fraud. In the case of Leggett v. Ostrander, in June, 1825, the court .for the correction of errors reversed a decree of Chancellor Kent, and directed an issue, in a case of conflicting testimony, and where it appeared, by the decree, that an application for an issue was made to the chancellor on the hearing, and refused. It therefore may be considered as settled, that a refusal to grant an issue, in a proper case, when directly applied for, and where in the exercise of a sound discretion the court below should have directed such issue, is of itself a good ground of appeal. In that case, however, it appeared from the recitals in the decree that the chancellor considered it a case of nicely balanced testimony, and one of real doubt, and that the only grounds for refusing the issue, were the smallness of the amount in controversy, and the fact that the main question had already been tried at law, upon an indictment against the defendants for forgery. From the papers before-me on this appeal, it does not appear that the complainants asked for an issue upon the hearing in the court below. In such a case, where the circuit judge had a right to decide the questions of fact without the intervention of a jury, I am not prepared to say that a party who did not ask for an issue can sustain an appeal, unless he'is able to satisfy this court that the decision was wrong upon the question of fact. In this case, however, I think an issue ought not to have been awarded by the court, below, on the application of the complainants, even if it had been asked for there. In Whalley v. Whalley, (3 Bligh's P. C. 16,) Lord Redesdale says, “ It would be attended with infinite mischief, if courts of equity were to hesilate in deciding questions when sufficient evidence is beforé Issues should be directed only in those cases where there is a want of evidence, or the testimony is contradictory and so nearly balanced that it is necessary to have an open and rigid cross examination of the witnesses before the jury who are to ¿decide the question of fact upon their conflicting testimony. Here the complainants might have brought their action at law in the first instance, to recover the prize money, which had been received on -the ticket in controversy, if they Were entitled to the same. They elected, however, to proceed in the equity court, and to call upon the defendants as witnesses against themselves, to answer on oath as to the allegation of fraud; Under such circumstances, the complainants must be bound by the rule of this court which makes the answer of a defendant, responsive to the bill, evidence in his own favor, unless contradicted by the testimony of more than one witness; Taking these answers as evidence, so far as they Are responsive to the allegations in the bill, in connection with the depositions of Stoxv and the Giffords, the weight of evidence is decidedly in favor of the defendants, upon the question whether the prize ticket was one of the package purchased by the complainants; although the loss of Metzer’s copy and the burning of the book are not satisfactorily accounted for.

The circumstances of suspicion in this case Were originally teuch as to justify'the complainants in a belief that a fraud had been practiced upon them. I think, therefore, the circuit judge was right in dismissing the bill without costs, although they had failed to make out their case. But if the decree was wrong in this respect, as the defendants have not appealed, it cannot be corrected here. Notwithstanding there Vas sufficient grounds for suspicion at the time of filing the bill in the court below, to excuse the complainants from costs there, the same reasons do not hold good as to the costs of this appeal, which has been prosecuted by these appellants "after all the facts of the case were fully ascertained.

The decree of the equity court must therefore be affirmed^ With costs»


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    Orcutt vs. Orms, administrator, &c.
    August 27.
    A plea which sets up no valid defence to any part of the matter it professes to cover, should be overruled absolutely, and will not he permitted to stand for an answer,
    The court may permit a plea to stand for an answer, if it contains matter which, if put in the form of an answer, would have constituted a valid defence to some material part of the matter to which it is pleaded in bar.
    By allowing a plea to stand for an answer, the court decides that it con-, tains matter of defence; but that it is not a full defence to all which it pro, fesses to cover, or that it is informally pleaded, or that the defence cannot properly be made by way of plea, or that the plea is not properly supported by answer.
    If a plea to the whole bill, unaccompanied by an answer, is allowed to stand for an answer without reserving to the complainant the right to except, it is to be deemed a full answer, though not necessarily a perfect defence.
    Where a plea is ordered to stand for an answer, with liberty to except, or the plea is accompanied by an answer, which will enable the complainant to ex, cept without special leave, the master, upon a reference of the exceptions, must decide as to the sufficiency of the answer, considering the plea as a part thereof.
    Where a creditor of an intestate sued the administrator, at law, and the latter pleaded plene administravit, and the creditor thereupon confessed the plea and took judgment of assets in futuro, and afterwards filed a bill in this court against the administrator for the satisfaction pf his judgment; Held, that the creditor was estopped from alleging that the defendant had any assets at the time the plea was put in by him in the court of law; and that the defendant was not liable for any part of the assets whjch had been lost previous to that time, by his neglect.
    Where this court and a court of law have concurrent jurisdiction of the subject matter of a suit, if the plaintiff elects to proceed at law in the first place, the decision of the question in that court will be conclusive upon the rights of the parties in a subsequent suit here, to the same extent that it would have been in a new suit at law, in relation to the same matter,
    If an administrator sells leasehold property belonging to the estate of the testator upon credit, without tailing proper security, he will be liable for a loss arising from the insolvency of the purchaser.
    Where the personal property of an intestate consisted of stages and stage horses, belonging to a daily line running from one state intp another, it seems that the rights of the administrators, appointed in the respective states, do not depend upon the fact of the property being in the one state or the other at the moment of the death of the decedent!
    Orson Martin resided at Poultney, in the state of Vermerit, and was at the time of his death engaged in running a line of stages, and transporting the mail, from the city of Albany into the state óf Vermont. The stage stopped over night at Poultney, about five or six miles from the line of this state, where the team which ran from thence to Hebron, in the county of Washington, was kept over night. Martin died in 1815, and the defendant, at the request of his widow, shortly after his death, took out letters of administration from the probate court of the district in which he died. The defendant took into his possession most of the personal estate and effects of the decedent, both in this state and in Vermont; and continued to run the stages through th.e season. Finding it necessary to take out administration in this state, to enable him to collect some of the debts and to reach some of the property of Martin here, particularly a leasehold property in the city of Albany, he applied to and obtained from the late court of probates letters of administration. In September, 1815, he made an inventory of the property in this state, which he filed in the office of the judge of probates in May thereafter. About the middle of October, 1815, the defendant sold the leasehold property in Albany, at auction, to J. Branch for $1500, one half payable in a few days, and the residue on the first of January, 1816 ; and he transferred the property to the purchaser, and took his notes for the purchase money, without security. The first note was paid; but before the other became due, Branch failed, and was afterwards discharged under the insolvent act, and the second note was wholly lost. - At the October term of the supreme court, in 1815, the present complainant commenced a suit against the administrator for a debt due him from the intestate. In January term, 1816, the defendant pleaded in that suit the general issue, and also that he had fully administered, &c.; and in a third plea, he set forth the recovery of two several judgments against the intestate in his life time, and one against himself as administrator, and alleged that he had fully administered all the assets which had come to his hands, except a small amount insufficient to satisfy those judgments. The plaintiff admitted the truth of the two last pleas, and a venire was awarded to try the general issue. In August term, 1816, the defendant gave a relicta and cognovit on the first plea, and judgment was thereupon entered for the complainant’s debt, to be levied of assets guando aeciderint. Eight years afterwards the complainant field his bill in this cause against the administrator, founded on that judgment, complaining of a fraudulent inventory, and calling for an account of the administration of the defendant, and for satisfaction of the judgment out of the estate in his hands. To this bill the defendant pleaded the proceedings in the suit in the supreme court, and the judgment thereon, and averred that no goods or chattels had come to his hands since the rendition of that judgment. The late Chancellor Jones overruled the plea; with permission however to the defendant to let it stand for an answer as far as it went, with liberty -to the complainant to except. The defendant afterwards put in an answer, giving therein an account of his administration, and also setting forth the substance of the facts contained in the plea, as a bar. The cause was thereupon heard on pleadings and proofs.

      J. Willard, for the complainant

      John Crary, for the defendant.
   The Chancellor.

I am not informed as to the reasons upon which the decision of the late chancellor, overruling the defendant’s plea, was founded. But as he gave the defendant permission to let it stand for an answer, as far as it went., he must have arrived at the conclusion that the facts therein stated might form a defence, or part of a defence to the suit. For if a plea contains nothing which can be a valid defence to any part of the matters which it professes to cover, it will not be allowed to stand for an answer, but should be absolutely overruled. When a plea is allowed to stand for an answer, it is determined that it contains matter which if put in the form of an answer, would have constituted a valid defence to .some material part of the matters to which it is pleaded as a bar, but that it is not a full defence to the whole matter which it professes to cover, or that it is informally pleaded, or is improperly offered as a defence by way of plea, or that it is not properly supported by answer. (Mitford, 4th Lond. ed. 303. Lube’s Eq. Pl, 46.) If a simple plea to the whole bill. unaccompanied by an answer, is allowed to stand for an answer, without reserving to the complainant the right to except^ it is to be deemed a sufficien t answer, though not necessarily a full and perfect defence to the whole bill. (Sellon v. Lewen, 3 Peer Wms. Rep. 239.) But if the plea is ordered to stand for an answer, with liberty to except, or is accompanied by an answer, which will enable the complainant to except without such special leave, the master upon a reference of the exceptions must enquire and ascertain whether the bill is fully answered, taking the plea as a part of that answer; unless the court, in permitting the plea to stand for an answer, as in the case of Kirby v. Taylor, (6 John. Ch. Rep. 254,) declares as to what part of the bill it is to be considered a good defence. The court, however, sometimes prohibits the complainant from calling upon the defendant, by exceptions, to discover particular matters as to which he is not legally bound to answer. Thus in Brereton v. Gamul, (2 Atk. 240,) and in Bagley v. Adams, (6 Ves, jun. 586,) the pleas were ordered to stand for answers, with liberty to the complainants to except, save as to calling upon the defendants for accounts. In this case, by the decision of' the late chancellor, the defendant was compelled to give a full account of the assets of the intestate which had come to his hands as administrator, as well before as after the plea of plene administravit; which seems to have been unnecessary if the chancellor arrived at the conclusion that the proceedings in the former suit were a bar to the claim upon assets which had been received before that time. I presume, however, that the chancellor must have come to such conclusion although the defendant was compelled to put in a full answer, as I can discover no other ground upon which the plea could have been permitted to stand for an answer. And upon a careful examination of the question, I am satisfied that to this extent the facts stated in the plea protected the defendant from an account as to any assets received by him before the pleas of plene administravit, &c. in the supreme court. The complainant had a right to come into this court in the first place for a discovery and account of the estate of the intestate which had come to the hands of the administrator, and to have Ms debt satisfied out of the same; or he might elect to sue in a court of law, and to enquire as to the state of the assets upon an issue joined on the plea of plene administravit. Having elected to prosecute his suit at law, if he did not wish to be precluded by the pleas of the administrator, he should have joined issue thereon and have established their falsity; or he should have submitted to a non-suit by which the right to call for an account here would have been preserved. In cases where this court has concurrent jurisdiction with courts of law, a judgment at law ought to have the same effect in this court, upon the rights of the parties as to a re-examination of the same question, as it would have in a court of common law, if there has been no fraud and undue means used to obtain the legal bar. There is no evidence here that the complainant was induced to admit the truth of the defendant’s two last pleas in consequence of any fraud practised upon him by the administrator. The inventory of the estate, even if it were false and deceptive, could not have induced him to adopt that course ^ as it appears by the record that he confessed those pleas, arid prayed judgment of ■assets, quando, &,c. previous to the filing of that inventory. In the case of Tayler v. Holman, (Buller’s N. P. 169,) where the executor had pleaded plene administravit in the original action, and the plaintiff instead of contesting the truth of that plea took judgment of future assets quando acciderint, and afterwards brought a suit upon the judgment suggesting a devastavit, Lord Mansfield refused to allow the plaintiff to give any evidence of assets come to the defendant’s hands before the judgment. Similar decisions at nisi prius have also been made by Lord Chief Justice Eyre, and by Chief Baron Parker. And in Mara v. Quin, (6 Burn, East’s Rep. 1,) upon a scire facias on such a judgment, the court of king’s bench decided that the plaintiff must aver that assets had come to the ■defendant’s hands since "the judgment, and that the plaintiff must pray execution against those goods only. Lord Kenyon, Ch. J. in that case says, “in point of convenience, it is right that such should bethe rule of law ; for if it were permitted to a creditor to litigate for a second time that which had once been ■settled between the parties either by a verdict or by admission, the executor would be harrassed and involved in infinite expense and litigation.” In that case, however, the court permitted an amendment of the original judgment, so as to cover the assets which had come to the defendant’s hands after plea pleaded but before the judgment was entered thereon. In the case now under consideration the form of the judgment was such as to cover any assets then in the defendant’s hands to be administered. But as the complainant admitted upon the record that the second and third pleas were true, he is estopped from alleging that the defendant had any assets at the time those pleas were put in, at the January term, in 1816. The plea which was originally filed in this suit was defective as a defence to the whole bill, because the complainant was entitled to a discovery as to any assets which might have come to the defendant’s hands after that time. Although the plea contained an averment that no goods had come to his hands after the rendition of the judgment, that did not cover the intermediate time between the judgment and the plea. And if any thing had been received during that time the complainant had a right to the same ; provided such assets were more than sufficient to satisfy the prior judgments mentioned in the third plea to the original suit. The plea should also have been supported by an answer; as the complainant had a right to call for an account of the assets, if any, which had come to the defendant’s hands after January term, 1816. But the plea was good in substance, and was a sufficient answer and a valid defence to so much of this bill as seeks a satisfaction of the complainant’s demand out of any thing for which the defendant might have made himself liable as administrator previous to that time. The defendant was technically liable for the loss on the sale of the leasehold property, arising from the insolvency of Branch. There was no fraud, however, in that transaction, but only a mistake of the defendant as to his right to sell the property on a credit. And he is perfectly excusable for interposing a technical estoppel as a defence against such a claim. That property was assets in his hands at the time of the sale, and the loss arose from his selling the property on a credit and without proper security. It is therefore not material to en-quire whether Branch became insolvent before or after the putting in of the plea of plene administravit. It appears, however, that the note had become due previous to that time.

The complainant has proved that Martin had some property in this state, at the time of his death, which is not mentioned in the inventory and which actually came to the possession of the defendant. This is satisfactorily explained in the answer so as to rebut all presumption of fraud in relation to that inventory, whatever may have been the legal liability of the defendant under the letters of administration granted in this state. It appears he was also the administrator of Martin in the state of Vermont under a previous appointment. As the intestate resided there at the time of his death, and from the nature of his business the property was constantly changing from one state to tire other, it was perfectly natural that the property which was found at Poultney at the time administration was granted in that state should be inventoried and accounted for there, whichever side of the line it might have chanced to be at the moment of Martin’s death. It appears from the testimony that one stage and four horses could not have been many rods from the state line when Martin died; the same having left the stage house in Poultney, five and a half miles distant from that place, only one hour before. And I presume, from the manner in which the stages usually run, that this stage and team must have returned to Poultney again the same evening. Under such circumstances, if administration had been granted to different individuals in the two states, I think the property must have been considered as belonging to that administrator who first reduced it to possession within the limits of his own state. But in this case as both administrations were granted to the same person, if an account of his administration was now to be taken here, it might be necessary to enquire whether he had inventoried and accounted for this property as a part of the estate which actually came to his possession as administrator in the state of Vermont.

As the seven dollars and fifty cents collected of Hawley was due from a debtor of the intestate residing in this .state it probably must be considered assets to that amount under the administration here, although the debt was actually inventoried in the other jurisdiction. (Godolph. Orph. Leg. 70. Thompson v. Wilson, 2 New-Hamp. Rep. 291.. Stearns v. Burnham, 5 Greenl. Rep. 261.) But as there is no evidence from which it can fairly be presumed that any other effects have come to the hands of the defendant since the January term, 1816, and as this sum is wholly insufficient to satisfy the previous judgments which are entitled to a preference in payment, it would be a useless expense to the complainant to direct a reference. The bill must therefore be dismissed, with costs.


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    M. & C. Miller vs. Bear and others.
    August 27.
    A decree for a specific performance will not be made, unless all the parties in interest are before the court.
    Where the party entitled to a specific performance of an agreement to convey land has been in the uninterrupted possession of the premises, an objection to a decree for a specific performance on account of the lapse of time cannot be sustained.
    Where the purchase money is unpaid, or where there is a dispute between the original purchaser and the alleged assignee as to the right of the latter to a conveyance of the property, both should be made parties to the suit.
    Rut where the assignee has the whole equitable interest in himself, and nothing remains to be done on the part of the assignor, who has parted with his entire interest in the property both at law and in equity, it is not necessary that the assignor should be made a party to a suit by the assignee for a specific performance of the original contract of sale.
    This was a bill for the specific performance of an agreement to convey a lot of land. Samuel Bear was the owner of part of the village plot of Schauyas; and for the-purpose of inducing mechanics to settle there, and thus, to increase the value of his other lots, he agreed to give village lots to several persons, if they would settle thereon as mechanics. Among others, * he gave lot No. 37 to D. Nihart, a carpenter and joiner, who built thereon. The next year Nihart sold to F. Rathfon, a hatter, who moved on to the lot and carried on his trade there until his death, six or seven years afterwards. When Rathfon purchased Bear gave him a written agreement to convey the lot to him if he could make a bargain with Nihart for the same. Bear died, in 1807, without having conveyed the lot to Rathfon, and leaving three children, the present defendants. then under age. After the death of Rathfon, his children and heirs and those claiming under them continued in possession of the lot until a paroi partition of the estate of their father was made; under which the complainant, M. Miller, "now claimed the greatest part of the premises. In 1838, the defendants, as heirs at law of S. Bear, brought an ejectment suit against the complainant C. Miller the tenant of M. Miller the other complainant to Recover possession of the lot; whereupon this bill was filed, for an injunction, and to compel a conveyance of the legal estate to M. Miller.

      J. Clark, for the complainants.

      J. Knox, for the defendants.
   The Chancellor.

There could be no doubt as to the right to a specific performance of the agreement in this case, if all the proper parties were before the court to enable me to make a final decree so as to prevent further litigation. The evidence is abundant to show that Rathfon, at the time of his death, was entitled to a conveyance of the lot from the heirs at law of Bear. And there is no doubt that the conveyance would have been made by Bear, at any time while he was alive and competent to transact business, if it had been made out and presented to him for execution. The objection on account of the lapse of time cannot be sustained, as the person originally entitled to the conveyance and those claiming under him have been in the uninterrupted possession of the property, and using it as their own. (Barbour v. Whitlock, 4 Monroes R. 197.) Under such circumstances, after the lapse of twenty years, it would probably be the duty of a jury to presume a conveyance in conformity to the agreement.

Upon the merits of this case I have no hesitation in saying that these defendants are wholly in the wrong. But the necessary parties are not before the court to enable me to make a final decree in the cause. The complainant, M. Miller, who now claims the property, is not the heir at law of Rathfon who was entitled to the conveyance, but he claims under the heirs. It has sometimes been doubted whether the assignee of a contract to purchase could sustain a bill for a specific performance without making the original purchaser a party. And where the purchase money remains unpaid, so that the vendor has an interest in having the vendee before the court, to obtain a decree for the payment thereof against him if a specific performance is decreed, or where there is a dispute between the original purchaser and the alleged assignee as to the right of the latter to the property, it may perhaps be proper to have both before the court, so as to save the vendor from further litigation. There are many cases where the assignee of a chose in action, or of an interest in property, is now permitted to sue without bringing the assignor before the court, where the letter was formerly held to be a necessary party. (2 Rand. Rep. 93. Marshall’s Kent. Rep. 508. 7 John. Ch. Rep. 504.) Where the assignee has the whole equitable interest in himself, so that nothing remains to be done by the assignor, who has parted with his entire interest in the property, both at law and in equity, I see no benefit which can result to any person by making him a party. In the case of Edgar v. Donnally & Jones, (2 Munf. Rep. 387,) the assignee of an equitable interest in land was permitted to file a bill against the holder of the legal estate, for a conveyance, without making the assignor a party. And where the whole subject of controversy, and the entire legal and equitable right is vested in the parties before the court, as" a general rule, it would seem that no further parties- could be necessary. Such, however, is not the case here. One of the heirs of Rathfon was ari infant, and therefore could not be bound by the partition even if she had joined in a conveyance. She should be before the court, so that she might exercise her right of election, either to be bound by the agreement for a partition, or claim her undivided interest in the property, including the equitable right to one sixth of the lot in controversy here. Two of the other heirs were femes covert, and could only be bound, by a conveyance duly acknowledged according to the statute. As the sale of their interest was merely by paroi, the right to their shares is not legally vested in the complainant, M. Miller, under the deed from C. Miller-and wife.

Again ; the complainants have no claim whatever to the six feet on the north side of the lot, which was reserved in the deed from Allaman and Eddington and their wives to Christian Miller. The several persons entitled to the conveyance of that part of the lot should also be before the court. The whole lot, by the original agreement, was to be conveyed to one person, and under one contract. And the defendants have a right to insist that the whole subject should be disposed of in one suit, that they may not be harrassed several times in relation to the same matter.

As there will probably be no difficulty in getting conveyanees from all the heirs of Rathfon and their legal representatives, so as to vest their several interests according to the previous understanding between themselves, further litigation in this case is perhaps useless. I would therefore suggest to the parties to this suit the propriety and expediency of compromising the same by having the necessary conveyances executed by the defendants, so as to vest the legal title to the whole lot in the several persons who are equitably entitled to the same; and in that case that the suit should be discontinued without costs as against either party. But if no such arrangement can be made, the cause must stand over, with leave to the complainants to file a supplemental bill, bringing all the necessary parties before the court. And in that case the question of costs on the original as well as on the supplemental bill is to be reserved until the final hearing.


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    Teal vs. Woodworth.
    Aug. 27.
    Where six children, one of whom was an idiot, inherited'a lot of land as ten* 'ants in common, and for the purpose of making partition thereof, it was agreed that A., one of the children, should purchase the shares of two others and have the east half of the lot for his portion thereof, and that E., another of the children, should purchase the share of one of the others, and should also take the share of the idiot in consideration of supporting such idiot for life, and that he should have the west half of the lot for his portion thereof, and conveyances were executed by all the children except the idiot, conveying the premises accordingly; and A. afterwards sold the east half of the lot to T. : Held, that as E. obtained no title to the idiot’s share of the lot, there was no consideration for his agreement to support the idiot; but that T. was entitled to an equitable partition of the premises, in which the share of the idiot should be assigned to her out of the west half of the lot which was conveyed to E. by the other heirs.
    Where a question which has been decided by an interlocutory decision or order, as upon a demurrer, comes again directly before the court upon the final hearing, and is necessarily involved in the decision and decree which ls1?then made, the appellate court, upon an appeal from such final decree, must review the decision upon that question if it was raised by the appellant’s counsel on the final hearing in the court below.
    If an order overruling a demurrer is not appealed from within the time limited for appealing from an interlocutory order, that order must stand and the defendant must pay the costs of the argument of the demurrer, although he succeeds in an appeal from the final decree involving the same question which was raised by the demurrer.
    A conveyance by a feme covert, with warranty, although acknowledged according to the statute, will not operate by way of estoppel so as to pass to her grantee her subsequently acquired interest in the property conveyed.
    Where a bill is filed by a creditor of a lunatic against his committee .to obtain payment of a debt out of the estate, it is not necessary to make the lunatic a party. But in a suit where there are conflicting interests between the lunatic and his committee which must be settled in the cause, both should ,be made parties.
    This was an appeal by the defendant, E. Woodworth, from the decree of the vice chancellor of the eighth circuit, founded upon the complainant’s bill only. S. Woodworth, the father of the defendant, died in 1823, seised of 100 acres of land in the county of Cayuga, leaving the defendant and five other children his heirs at law, one of whom was an idiot. A few months after the death of the father, all the children except the idiot agreed upon a disposition and division of the lot, by which Abner, one of the sons, was to have about 50 acres of the east part of the lot, and was to pay to two of his sisters two hundred dollars each for their respective interests in the estate. The defendant, E. Woodworth, the other son, was to take the residue of the lot and pay to another sister two hundred dollars for her interest therein. And as a compensation for the interest of Lydia, the idiot, in the lot, the defendant was to support and maintain her during her natural life. This agreement was carried into effect by the execution of conveyances by all the heirs except the idiot. The defendant then agreed to give the husband of one of his sisters two hundred dollars to support the idiot for life. And to secure that sum, and the two hundred dollars due for the wife’s share in the estate, the defendant gave the husband a bond and mortgage on the west part of the lot which had been thus conveyed to the defendant under the agreement. In 1824, the complainant purchased of Abner Woodworth the 50 acres of the east part of the lot, and paid him $1300, for the same, with the knowledge and consent of the defendant. Previous to that time the defendant had rescinded the contract with his brother-in-law for the support of the idiot, and had as-burned to support her himself. In September, 1827, the defendant caused proceedings to be instituted in the equity court of the seventh circuit, upon which Lydia was- found an ^ idiot. It was also found by the inquisition that she was seised of the undivided sixth part of the 100 acre lot of which her father died seised ; and the defendant was by that court appointed her committee. The bill also alleged that the defendant was proceeding by petition,in the equity court to obtain authority to sell the idiot’s interest in the lot, with a view to compel a partition so as to deprive the complainant of ' some part of his 50 acres, and without reference to his just rights as between him and the defendant. It was also stated in the bill that the defendant had filed an inventory, as such committee, by which he claimed that the idiot was largely indebted to him for her support and maintenance, over and above the rents and profits of her interest in that part of the lot occupied by him. And the complainant prayed that the defendant might be perpetually enjoined from taking any measures by which the share of the idiot in the lot might be set off from the complainant’s fifty acres, and from taking any measures by which such share might be sold before a partition had been, made with a due reference to the complainant’s rights, and for general relief.
    The defendant demurred to the Ml for want of equity ; but the demurrer, upon argument, was overruled with costs. From that decision of the vice chancellor the defendant appealed, but owing to some irregularity the appeal was after-wards dismissed. The defendant having neglected to put in an answer, according to the order of the court, the cause was subsequently brought to a hearing upon the bill taken as confessed. And after argument of the case by the counsel of the respective parties, the vice chancellor decreed that the defendant should give to the complainant a bond and security to' indemnify him and his heirs and assigns against any loss or damage which might be sustained by reason of any partition, sale, or leasing of the land of the idiot, which might thereafter be made by order of this court upon Any application made or to be made in her behalf; that-the injunction which had been issued, restraining the proceedings of the defendant, should remain in force until the further order of the court; and that the defendant should pay the costs of the suit.

      W. H. Seward, for the complainant.

      G. C. Bronson, for the defendant.
   The Chancellor.

No regular appeal having been entered from the order overruling the demurrer, within the time allowed by law for appealing from an interlocutory order, that decision of the vice chancellor cannot be reversed on this appeal from the final decree. That order must therefore remain in full force; and the complainant is entitled to his costs of the argument of the demurrer, whatever may be the final result of the appeal as to the merits of the cause. But if there is no equity in the complainant’s bill, nor any thing which could entitle him to any kind of relief, this decree cannot be sustained. That question arises upon the bill itself, in the same manner as if it had been taken as confessed in the first instance without the intervention of a demurrer. Where the vice chancellor has already decided the question deliberately upon the argument of a demurrer, and has overruled the demurrer on the merits, he would not perhaps review his decision upon thé final hearing, although the same question was raised upon the bill as confessed by the defendant. But where the same point, which has been decided upon an interlocutory order or decree in a previous stage of the cause, comes again directly before the court upon the final hearing, and is necessarily involved in the decree or decision which is then made, the appellate court must review the decision upon that point if it was actually raised by counsel upon the final hearing in the court below. Upon the same principle, where a court has deliberately examined and settled a legal question in one suit, it will not afterwards listen to an argument of the same question, although it should arise in another suit and between different parties. The appellate court, however, would in that case be compelled to examine the correctness of the decision ip reference to the judgment or decree last entered; thus incidentally reviewing the decision in the first suit. Most probably all the parties to the agreement of September, 1823, acted under a misapprehension as to their rights, and mistook the legal effect of the arrangement which was then made. As Lydia had been an idiot from her birth, there was no way in which she could, by any act of her own, dispose of her property or change the course of descent. And they undoubtedly acted on the supposition, that if a provision was made for her support during her life, the reversion of the property would belong'to them, and that they could convey a good title to it subject to her life estate. As to this, however, they were under a mistake. Although the brothers and sisters were the heirs presumptive to the estate of the idiot, they had no interest therein which could be conveyed during her life. And the three sisters being married women, could not execute any covenants of warranty which would operate upon them by way of estoppel, so as to make any estate which might come to them afterwards, by descent or otherwise, enure to the benefit óf the grantees. Again ; if either of the brothers ór sisters should die before the idiot, the estate of the idiot would, upon her own death, descend directly to the next heir, who could not be affected by any lineal or collateral warranty of his ancestor, or the person through whose blood he derivéd his title by descent. (1 R. S. 739, § 141.) The legal result óf the arrangement is, that one sixth of the whole lot belongs to the idiot and those who may be her heirs at the time of her death, if the same should not be sold under a decree or order of this court previous to that time. And if the defendant is compelled to support the idiot in the mean time, he will receive no equivalent therefor, and will not be entitled to her share of the estate at her death. . There is nevertheless an equity in behalf of this complainant, that in the partition of the estate the share .of the idiot should be assigned to her out of 'the west part of the lot which was conveyed to the defendant in the division. The complainant having purchased the land conveyed to Abner, and paid for it in good faith supposing he was obtaining a valid title to the whole, must stand in the place of Abner as to any equity which existed in his favor against his brother in relation to the partition of the estate. And the rights of the idiot will be preserved whether her share is assigned to her out of the one part of the lot or the other. Under the agreement Abner bought the shares of two of the sisters, which entitled him to one half of the lot; and yet, by the conveyance, he only obtained the legal title to five sixths of that half. The defendant on the contrary only purchased and paid for the share of one of the sisters, which, with his own share, gave him a right to only two thirds of the other half: whereas, by the conveyance, he obtained the legal title to five sixths of that half; that is, the one " sixth which was purchased and paid for by Abner. If net conveyances had been executed, and an equitable partition was now to be made between Abner and the defendant and the idiot, one half of the lot would be assigned to the former, and the other half would be divided between the defendant and the idiot, in the. proportions of two thirds to the former and one third to the latter. And if the complainant’s bill had been properly framed for that purpose, and the necessary parties were before the court, such is the relief to which he would have been entitled upon the facts stated in the bill To enable the court to make such a partition, however, it is necessary that all the parties having an interest in the estate should be before the court. In the case of Brasher v. Fan Cortlandt, (2 John. Ch. Rep. 242,) where a bill was filed against the committee of a lunatic, in his character of committee, to obtain the payment of a debt of the lunatic out of his estate, Chancellor Kent decided that it was not necessary to make the lunatic himself a party. But in a case like the present, where the individual who happens to be the committee has a personal interest in the controversy, and where such interest may or necessarily must conflict with that of the lunatic, the latter should be a party to the suit, so that the court might assign him a guardian to appear and protect his rights as against the committee.

As the defendant acquired no title or interest whatever in the idiot’s share of the real estate in this case, the agreement on his part to support the idiot was wholly without consideration, and void. It cannot therefore be enforced, either at law or in equity. But as he has had the use of the idiot’s interest in the one sixth of the whole lot, he is answerable for one third of the rents and profits of the west half, of w'hich he has been in possession, as an off set against his claim for the maintenance of the idiot in the mean time. The decree of the vice chancellor is manifestly wrong, inasmuch as it. compels the defendant to indemnify the complainant against any order or decree which may be made for the sale of the estate of the infant, and also against all costs. The case made by the bill, although it shows that one third of the west half of the lot should in an equitable partition be appropriated as the share of the infant in the whole estate, forms no foundation for a claim against the defendant personally for an indemnity ; particularly as to the costs which must necessarily arise on a partition of the estate. As both parties were under a mistake in supposing that they could make a valid division of the estate so as to give the idiot’s share to the defendant as an equivalent for her support, there can be no good reason for charging the defendant with the whole costs of the partition suit which may be necessary to correct that mistake and to protect the equitable rights of both parties. The inequitable claim set up by the defendant, to charge the complainant’s half of the estate, as to which the allegations in the bill, for the purposes of this decision, must be taken as strictly true, might form a ground for charging him with the costs of this suit if it had been properly brought. But even that is questionable, as a partition suit seems to have been necessary in any event. As the idiot has no property for her support except her interest in this lot, that interest must be sold for that purpose ; the defendant being under no legal or moral obligation to support her out of his own estate, without any equivalent." The committee, however, should not be permitted to sell that interest without express notice to the purchaser of the equitable claim which the complainant has to have the whole of this share taken from the west part of the lot. That direction would of course have been given to the committee, if the complainant had petitioned the court for that purpose in the matter of the idiocy. That, however, would not have protected the equitable rights of the complainant, if the defendant in the mean time had sold the west half of the lot to a bona fide purchaser who had no notice of the complainant’s claim to an equitable partition.

The decree of the vice chancellor must be reversed: And as it appears to be impossible to make any decree on the bill as it now stands, the case must be remitted to the vice chancellor, with directions to permit the complainant to dismiss his bill without costs and without prejudice to his right to file a new bill against the defendant and the idiot for an equitable partition of the lot between the parties according to their respective rights; or to permit him to apply for leave to amend the present bill, at any time within three months, as he may be advised. Neither party is to have costs on this appeal. And as the defendant will have an opportuuity to make a defence to the bill if it is amended, the amendment, if granted, is to be without costs to either party.


author: The Chancellor,

text:
    Leggett vs. Dubois and others.
    August 27.
    Where there has been one reference on exceptions to an answer, if a second or third answer is referred for insufficiency on the old exceptions, it should be referred to the same master, if he remains in office and is competent to act in the case.
    In this case the answer of the defendants was excepted to for insufficiency; and a part of the exceptions, upon a reference to a master, were allowed. The defendants thereupon put in a further answer, which was referred upon the old exceptions, but to a different master. This answer being also reported insufficient, a third answer was put in; which was also referred upon some of the old exceptions to a third master. The cause came before the court upon exceptions taken by both parties to the report of the last master.

      T. Fessenden, for the complainant.

      J. Lynch, for the defendants.
   The Chancellor,

upon these facts being stated, said that where there had been one reference on exceptions to an answer, if a second or third answer was referred on the old exceptions, the correct practice was to refer it to the same master who had passed upon the question of the sufficiency of the former answer, provided he remained in commission and was competent to act in the case. That this, was now the settled practice in England, under an order of the court of chancery, adopted many years since; and that such was the practice here previous to the recent revision of the rules. That it was not the intention of the court, in the adoption of the 99th rule, or by the subsequent amendment thereof, to change the practice in this respect. That the case of a second reference of the same answer, where the master to whom the former reference was made was still competent to act, was not within the spirit although it was within the letter of the rule.


text:
    The Ontario Bank vs. Root & Congdon.
    August 27.
    Where a bill was filed against a defendant to charge him as the trustee of the complainants, upon an alleged assignment of the property of their debtor for their benefit, and the complainants in their bill, not as a substantive ground of equity but only as evidence and in confirmation of the fact that the defendant received such assignment in trust for their benefit, stated an agreement of the defendant to pay their debt, but which agreement was denied in the answer of the defendant; Held, that the complainants, who had failed to prove the assignment in trust, could not recover on the alleged agreement.
    Where the complainant sets up an agreement in his bill which would be invalid by the statute of frauds, unless it was in writing, and the defendant ■by his answer denies the agreement, it is not necessary for him to insist upon the statute as a bar; but the complainant, at the hearing, must establish the agreement by written evidence.
    Where the complainant by his bill claims a beneficial interest under an assignment, without alleging it to be fraudulent, he cannot be permitted at the hearing to claim relief on the ground that the assignment is proved to be fraudulent.
    The interest of a cestui que trust in real estate cannot be sold on an execution at law, unless the trustee holds the legal title as a clear simple trust for the benefit of the judgment debtor alone.
    This was an appeal by L. Root, one of the defendants, from a decree of the vice chancellor of the eighth circuit; by which decree Root was charged with the amount of a certain judgment recovered by the complainants against the defendant Congdon, on which judgment a fi. fa. had been issued and returned unsatisfied. The facts of the case, so far as is necessary to understand the questions of law decided, appear in the opinion of the court.
    A. Tabor, for the appellant.

      B. F. Butler, for the respondents.
   The Chancellor.

This case comes before me on an appeal by the defendant Root from the decree of the vice chancellor of the eighth circuit. The vice chancellor appears to have founded his decree upon the supposed agreement made with the cashier of the bank, as proved by himself and the clerks. There are at least two substantial objections to this supposed agreement, as the foundation of a decree in this case against the appellant. In the first place it is not set up in the complainant’s bill as a substantive ground of equity ; and the supposed consideration thereof, as stated in the bill, did not exist in point of fact. The whole scope of this part of the bill was to charge the defendant Root as a trustee of the bank, for the surplus of the assigned property, over and above paying what was due to himself. The bill accordingly alleges that the assignment and conveyance from the Congdons were made by them and received by Root in trust, and upon the express understanding that the property conveyed and assigned should be applied in the first place to the payment of his own debts, and in the next place to satisfy the amount due on the three notes of the complainants. And the supposed agreement of Root to pay the three notes out of the surplus, is only set forth in the bill as evidence and in “ confirmation of the fact” that Root received the assignment and conveyance under such trust and agreement with the Congdons as had been previously stated in the bill. This also was the only consideration which could support an agreement to pay the debt of third persons, and which agreement was not evidenced by writing. It is evident that the counsel who prepared this bill did not intend to set up the simple agreement, or the conversation between Root and the cashier, as the foundation of a bill in equity. He must have been well aware that if he had set up that agreement as the foundation of the suit, the defendant would have demurred, on the ground that the complainants, if they could recover at all, had a perfect and adequate remedy by a suit at law. By the answer and the testimony on the part of the defendant Root it is established beyond all manner of doubt, that at the time the assignment and conveyance were executed there was no trust or agreement between Root and the Congdons that he was to hold any part of the surplus of the property to pay the $1000 note drawn by the Everinghams and endorsed by the Congdons.

I am also perfectly satisfied from the evidence, when taken in connection with the answer which is responsive to the bill in this respect, that the defendant Root never intended to agree to pay this particular note. R. Beach, the attorney who

was present and drew the assignment, says it was agreed at the time that the Congdons might pay the two notes of $300 and $500 out of the asssigned property. And that they requested Root to call at the bank and make an arrangement by which those two notes should not be sued, but not to make any arrangement of the $1000 note endorsed by them, as they did not intend to pay it; alleging as a reason for not providing for that note, that I. E. Congdon said he never had the money. It is not probable, therefore, that a man of business, instead of pursuing this direction, and when he could not make such an arrangement without the consent of the Congdons, would intentionally enter into an agreement by which he would be- compelled to pay that amount out of his own pocket. There is no doubt, however, on the other hand, that the cashier and clerks in the bank understood the promise to extend to all three of the notes, and that they have detailed the conversation as they understood it. Such a mistake might easily happen, as the cashier and clerks knew nothing of the directions which had been given by the Cong-dons, or of the distinction they had made between their own notes and the one drawn by the Everinghams and endorsed by one of the Congdons in the name of the firm. And Root did not probably know the particular situation of the several notes; or that the note of $1000 was understood by the officers of the bank to have been discounted for the benefit of the Congdons, and that the other parties whose names appeared thereon as the drawers, were in fact nothing but sureties. Root was therefore undoubtedly making an arrangement as to what he supposed to be all of Congdons’ notes, but did not suppose he was including Everingham’s notes in the arrangement. The cashier and clerks, on the other hand, who understood all of the notes to be the Congdons’ notes, undoubtedly made use of language which would apply to them all, and which would bring them within the terms of the agreement which the cashier supposed was intended to reach all. This therefore is one of those cases against which the statute of frauds was intended to provide; so that a third person who had no personal interest in the matter, should not beholden upon any promise to be answerable for the debt or default of another unless it was reduced to writing, so that there could not be any misunderstanding by witnesses, or misapprehension between the parties, as to what was intended to be agreed, and as to the extent to which such third "person intended to render himself personally responsible. As the agreement was denied in the defendant’s answer, it was not necessary for him to insist upon the statute as a bar. The complainants in such a case must produce legal evidence of the existence of the agreement, which cannot be established by paroi proof merely. (Cozine v. Graham, 2 Paiges Rep. 181.) One of the witnesses goes too far, when he says it is impossible that there could have been any mistake ; as he not only swears to the infallibility of his own memory after a lapse of more than three years, but also as to the extent of the comprehension of a third person in relation to matters about which that person must necessarily have known very little.

There is no allegation in the bill that the assignment was fraudulent, or was intended to defraud creditors. On the contrary, the complainants claim a beneficial interest under that assignment. For this reason the complainants are not entitled to any relief on the ground of fraud in the assignment. It is therefore unnecessary to examine the question whether there was any evidence in the case which could have supported that charge if it had been made in the bill.

It is not admitted in the answer that the purchase money of the stone house lot was paid by the Congdons or out of their funds, as is supposed by the complainants’ counsel in his third point. On the contrary it appears by the schedule annexed to the answer, and made a part thereof, that the appellant, at the time the deed from Child was obtained, or shortly afterwards, paid $280 towards the purchase money of the land. That lot therefore would not have been held by Root as a simple trustee for the benefit of the Congdons exclusively, even if there had not been an express agreement that it should be held for the security of the balance of the debt which still remained due to him from the Congdons. And in the case of Bogert v. Perry and others, (17 John. Rep. 332,) the court for the correction of errors decided that the interest of a cestui que trust, who had not the whole beneficial interest in the trust ProPerty, could not be sold on an execution at law. Our statute, which was in force when these proceedings took place, was in this respect a transcript of the stat. 29 Ch. 2, c. 3, § 10, (1 Evans’ Stat. 218.) And under that statute it has been frequently decided that, to bring the case within the provisions thereof, it must be a clear and simple trust, for the benefit of the judgment debtor only; and that a trust created partly for the benefit of the judgment debtor, and partly for the benefit of the trustee, or a third person, is not within the statute. (Hall v. Greenhill, 4 Barn, & Ald. 684. Harris v. Booker, 4 Bing. Rep. 96.) In this case, at the time the complainants’ execution was sued out, the defendant Root was entitled to nearly three fourths of the whole value of the stone house lot, to pay the balance due to him including his advances for the original purchase money, &c. If the original transfer of this lot was not fraudulent, or intended merely to cover the property against creditors, the judgment and execution formed no lien upon the land; and these complainants had no right to claim the surplus to the exclusion of other creditors of the Cong-dons. At the time the application was made to Root, at Albany, in March, 1828, a large balance was still due to him ; and the complainants had no right to ask that the whole estate should be conveyed to Congdon so as to subject it to the lien of their execution. If they had then filed their bill here, they would have obtained a specific lien upon the surplus as an equitable fund which could not be reached by means of an execution at law. But James and Cornell, the other creditors, subsequently obtained that surplus with the assent of Congdon who then had the right to give them the preference, and Root could not legally control this disposition of the surplus.

The appellant appears to have been at all times willing to give the complainants the surplus of the assigned property in satisfaction of their judgment, provided Congdon would consent, but was so situated that he had no right to pay it over to them without such assent. If therefore the complainants wished to secure such preference, they should have followed up their execution by a bill in this court, before the other creditors had obtained the fund from the hands of the appellant. I think the defendant Root was improperly charged with the payment of the judgment, he having received no equivalent therefor, and having done nothing by which the rights of the complainants have been in any way impaired, or from which they have sustained any injury.

The" decree of the vice chancellor, so far as'it makes the appellant answerable, either for the complainants’ debt, or for their costs in this suit, must therefore be reversed, with costs. And unless the complainants elect to have a reference, for the purpose of ascertaining whether there were any funds or property belonging .to Congdon in the hands of the appellant, at the time of the commencement of this suit, the bill as to him must be dismissed, with costs. In case they elect to have such a reference, all questions of costs, except as to the-costs on this appeal, are to be reserved.