text:
    Keyes vs. Brush.
    Where an absolute assignment of all the assignor’s property and choses in action, contained á provision that the assignor would, with all convenient speed, make out an inventory of such property and choses in action, and which inventory, when made out, was to be considered a patt of the assignment; it was held that the assignment conveyed a present interest to the assignee, and that its taking effect ■ did not depend upon the making out of the inventory. ■
    If the assignor neglects to furnish the schedule required by the assignment, the assignee may file a bill for discovery against him, and also to obtain a delivery of the books and securities; and he will also be entitled- to an injunction against the assignor restraining him from wasting the property.
    Where an insolvent debtor assigns all his property to his surety for his indemnity, the surety is entitled to the possession of the property so assigned, in order to discharge the responsibilities which he has assumed for the debtor.
    The creditors of the insolvent debtor to whom the surety is liable, can also compel the appropriation of the property in the manner directed by the assignment.
    If the assignee becomes insolvent, the assignor may apply for the appoint- , ment of a receiver to execute the trusts declared in the assignment.
    This was a motion' to dissolve the injunction, heretofore issued in this cause, restraining the defendant from collecting or selling, assigning and transferring certain debts, choses in action, goods and other property assigned to the complainant to indemnify him as endorser and security for the defendant, and' to pay off the debts for which the complainant had become responsible. ',
    Nov. 16th.

      J. 0. Morse fy M. T. Reynolds, for the complainant.

      Alvan Stewart, for the defendant.
   The Chancellor.

The defendant is under a mistake in supposing that the assignment of the 26th of May, 1830, Was inoperative in consequence of his neglect or refusal to make out and annex thereto a schedule or inventory of the property and effects assigned. The assignment was absolute and conveyed a present interest to the complainant in all the property, choses in action, and effects of the defendant. The part of the agreement relied on by the defendant as conditional, after making an absolute grant and conveyances of all the property, effects and choses in action of the defendant of every description, concludes as follows •: “ A just and true inventory of all which books, book' accounts, debts, bonds, notes, demands, goods, chattels and property, is to be made out in writing by the said E. Brush with all convenient speed, and to be' annexed hereto, and be made, and considered a part of this indenture of assignment.” The annexation of the schedule was not a condition precedent, upon the performance of which the assignment was to take effect.’, The neglect to specify the particular property and. effects intended tq be .conveyed, might furnish a presumption of fraud in a suit .between the assignee and Other creditors of the defendant; and for that reason, as well for the convenience of all par-, ties, it was proper 'to insert that clause in the covenant. A similar question recently came before the supreme court of - Massachusetts, in Emerson v. Knower, (8 Pick. Rep. 63.) and it was there held that the assignment was valid and bind? ing on the assignee, although the assignor had neglected to make out and annex the schedule according to his agreement. In the case before me the intention of the parties is perfectly manifest; for it was, in and by the assignment, agreed and declared that the assignee should immediately . take, into his possession the assigned property, and which was to be specified in the inventory that Brush was to make out with all convenient speed. ■

' . But it is said this was a hard and unconscientious agreement which this court ought not to aid the complainant in enforcing. If this was only an agreement on the part of the defendant to give a preference, the specific performance of which might deprive the. defendant of the benefit of the insolvent acts,"this court would certainly hesitate long before it ■ would decree a performance./ I am satisfied however that the preference has already been given, and that the legal interest in the tangible property, and the equitable interest in the choses in action, is already in the complainant. The property, cannot .therefore be reached by other creditors until the debts for which Keyes is responsible are first' satisfied. ■ The only question now is whether the insolvent assignor shall be permitted to appropriate the proceeds of the property to his own use, or shall allow them to be received and applied to the satisfaction of these particular debts. The creditors of Brush, to whom the complainant is responsible, have now an interest in this question ; and may, if they please, compel an appropriation of the property to the objects of the trust in the manner contemplated by the assignment. If the assignee is irrresponsible, even the defendant has such an interest in the property as would authorize him to apply for the appointment of a receiver to collect and apply the proceeds of the assigned property to the purposes of the trust.

The remedy of the complainant at law was not complete. As the defendant had neglected to comply with his agreement to furnish an inventory of the assigned property, it was necessary for Keyes to comé here for a discovery thereof, and to obtain a delivery of the books and securities. It was also necessary to come to this court for injunction to prevent the property from being wasted by the defendant. The court having obtained jurisdiction of the suit for these legitimate purposes, will now retain it for the purpose of having the property collected and applied to the objects of the trust. The answer, so far as it is responsive to the bill, shows that the injunction does not restrain the defendant from doing any thing which he has a legal or equitable right to do. The injunction must therefore be retained until the further order of the court. Either party is to be at liberty to apply for a receiver, on due notice of such an application, to collect the trust funds, and to preserve them pending this litigation; and the costs of the present motion are to abide the further order of the court.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Snelling & Baxter vs. Watrous and others.
    Where the defendant was in contempt for not putting-in an answer, and an attachment had been issued against him, upon which he could not be found ; and afterwards, upon his application to the proper officer for his discharge under the insolvent act, the complainant, with the view of procuring his arrest upon the attachment, obtained an order for his personal exi animation before such officer, and "after such examination of the defendant was closed, and as he was leaving the office, the complainant caused him to be arrested upon the attachment, it was h eld, that as the defendant, was arrested by such an improper contrivance, he ought to he discharged.
    An attachment for the non-payment of costs only, although in form a criminal, yet in substance is a civil proceeding, and a party will be entitled to the like protection from arrest thereon, as in other civil process, during his attendance as a party or witness before some court" or officer, and a reasonable time to go and return.
    Whether the like protection would be extended to cases where the court can punish by fine and imprisonment upon an attachment to enforce a civil right or remedy? Quaere.
    The defendant Watrous was in contempt for not answering ; and an attachment was issued against him, upon which .he could not be found by the officer. But having applied for his discharge under the insolvent act, to the recorder of NewYorlc, the complainant’s counsel opposed his discharge, and procured an order for his personal examination before the recorder. After the defendant’s examination was closed, and as he was leaving the recorder’s office, the complainants’ counsel caused, him to be arrested on the attachment. The defendant immediately applied to the recorder for his discharge, who referred the question to .the chancellor for his decision thereon.

      D. D. Field, for the complainants.

      C. W. Sanford, for the defendant.
   The Chancellor.

If this was an attachment' for the non-payment of costs merely, or a precept to commit the defendant for the non-payment of a sum of money, under an order of the court, the proceeding, although in form in the name of the people, would in substance be a civil proceeding; and the defendant would be protected from arrest thereon during his attendance before the recorder, and until he had a reasonable time to return home. (Ex parte Parker, 3 Ves. 554. United States v. Edme, 9 Serg. & Rawl. 150. Ex parte Eicke, 1 Glyn. & Jan. 261.) Whether the protection extends -to those cases in which the court is authorized to. punish the party by fine and imprisonment, on an attachment to enforce a civil right or remedy, admits of some doubt.

But under the circumstances of this particular case, the defendant must be discharged from the arrest. Where the party has not in fact been guilty of a crime, this court will not permit the complainant to resort to any unfair and inequtable method to enforce the process of attachment. It is very evident that the proceeding before the recorder to procure the personal attendance of the insolvent was a mere device to enable the complainants to arrest him on this attachment. I cannot allow a party thus to abuse the process or the remedial power of any court. In Wells v. Gurney, (8 Barn. & Cress. 679,) where by the contrivance of the plaintiff’s attorney the defendant was arrested on Sunday for an assault actually committed, but for the real purpose of detaining him until Monday, so that he might be'arrested in a civil suit, the court of king’s bench discharged the defendant from the last arrest.

The defendant Watrous must be discharged from the arrest on this attachment; but on condition that no action for false imprisonment be brought by him.


author: The Chancellor

text:
    Hallenbeck and wife vs. Bradt and others.
    The share of the proceeds of a sale in partition belonging to a wife will not be paid to the husband, unless a master certifies that on a private examination of the wife, he fully explained to her the nature and extent of her rights, and that she voluntarily consented to relinquish them in favor of her husband, either absolutely or on the terms and conditions specified in such certificate.
    Such consent given before a commissioner of deeds is insufficient.
    December 3d.
    This was an application for an order to permit the husbands of two parties in a partition suit to receive the shares of the. proceeds of the sale which belonged to their wives. The petition upon which the application was founded and which contained the consent of the wives to such an order, was acknowledged before a commissioner of deeds.
   The Chancellor

decided that such an acknowledgment was insufficient. That the acknowledgment and consent of the wife must be taken before one of the masters of this court, who was competent to understand the nature and extent of her equitable right to a provision out of her separate property before it could be claimed by the husband. That it should appear from the certificate of the master that on a private examination of the wife he had fully explained to her the nature and extent of her rights, and that she voluntarily consented to relinquish them in favor of the husband, either absolutely, or on the terms and conditions specified in such certificate.


text:
    In the matter of Hemiup.
    Upon an application under the statute. (2 R. S. 110, § 61,) to rectify certain irregularities in the sale of real estate made by an administratrix under an order of a surrogate, it was held that an injunction to stay proceedings wat law could not be granted until the report of the master came in, as to the facts and the names and residences of the persons entitled to the estate, as heirs or devisees, or as persons claiming under them.
    Upon the appearance of the parties entitled to the estate, a temporary injunction may be granted, to stay the proceedings at law until the question ■as to the fairness of the surrogate’s sale is determined by the court; and a reference will be made to a master to examine the witnesses as to this point.
    Wherever the court of chancery has power to make an order in consequence of possessing jurisdiction over the subject matter of the suit or proceeding, and which a person is bound to obey in consequence of his being either actually or constructively a party to the suit, it may enforce obedience to such order by the process of injunction founded upon a petition merely, although no bill has been filed against such person.
    The filing of the petition in such cases is a substitute for a bill, and is a sub' stantial compliance with the statute, (2 R. S. 179, § 71.
    The provision of the statute prohibiting the issuing of an injunction until the bill is filed, relates only to those cases where the court obtains its jurisdiction of the cause in no other way than by a proceeding by bill.
    The court has no power to rectify any other irregularities in a surrogate’s sale than those specified in section 61, (2 R. S. 110.)
    The remedy of the purchaser in other cases is either at law against the executor or administrator upon the covenants in his deed, or by bill against the heirs, upon the ground that they have been benefited by the proceeds ■of the sale.
    December 7th
    A petition was presented in this case, under the provisions of the revised statutes, to rectify certain irregularities in the sale of real estate by an administratrix under a surrogate’s order, and to confirm the sale. (2 R. S. 110, § 61.) The petition set forth the sale, and stated that the petitioner had acquired title by divers mesne conveyances from the purchaser; that the heirs at law of the intestate had commenced an action of ejectment to recover the premises from the petitioner; and that he had recently discovered his title under the sale to be defective, because no discreet person had been appointed by the surrogate to join in the sale, as was required by the statute in force at the time the order for such sale was made. (1 R. L. 451, § 24.) The petitioner prayed for the usual order of reference under the statute; and also for an injunction to stay the proceedings at law in the mean time.
    The Chancellor decided that in that stage of the proceedings his authority was special, and was limited by the statute to the malting of an order of reference to the master to report as to the facts, and the names and residences of the persons entitled to the estate as heirs at law or devisees of the decedent, or as claiming under them. That until such preliminary examination and report had been made by the master> the court could not know who were the persons against whom the proceeding was instituted. That having no jurisdiction, either over the property for the recovery of which the suit at law was brought, or over the persons of the plaintiffs in that action, an injunction to stay their proceedings at law could not then be granted.
    After notice had been published, and had been served on the heirs at law of the intestate residing in this state, the latter appeared to show cause why the" sale and conveyance should not be confirmed. The chancellor not being prepared to decide the question at that time, the application was renewed, on the part of the petitioner, for an injunction or order to restrain the trial of the suit at law until the final decision of this matter.

      J. Rhoades, for the petitioner.

      iS. M.. Hopkins, for the heirs at law.
   The Chancellor.

The heirs at law who come here to oppose this application are now parties to a suit or proceeding before the court; and as such parties they may be compelled by an order of the court to do, or to refrain from doing any thing which is necessary to enable the chancellor to exercise the jurisdiction and give such relief to the petitioner as was contemplated by the statute. It would be a matter Of course, on a bill filed, to enjoin the heirs at law from proceeding in the ejectment suit until the question could be disposed of on this application. The relief asked for here would be in a great measure useless if the heirs were permitted to go on with their suit at law and obtain possession of the property, and collect their costs and the mesne profits, while these proceedings were delayed by a protracted examination of the merits, or by an appeal to the court for the correction of errors from the decision of the chancellor.

The provision of the revised statutes, (2 R. S. 179, § 71,) which prohibits the issuing of an injunction until the bill is filed, is to.be construed in connection with the section, immediately preceding, relative to the subpoena. Those provisions relate only to cases where the court obtains jurisdiction of the cause by a proceeding by bill ; and where, by the English practice, the plaintiff was in some cases permitted to take out and serve a subpoena and injunction before his bill was actually filed. (1 Grant. Ch. Prac. 18.) It is a mere extension of the 22d section of the statute 4 Anne, ch. 16, which contained an exception in favor of injunction bills. There is a variety of cases in which this court enforces its orders and decrees by injunction, where the proceeding is founded on a petition only, and without any bill filed. The filing of the petition in these cases, which is a substitute for a bill, is a substantial compliance with the requirement of the statute. In this case the notice which is required to be served on the heirs at law, or to be published if they are absentees, is a substitute for the subpoena, and gives the court jurisdiction over their persons, so far as is necessary to compel obedience to any order properly made in relation to the subject of this proceeding.

Wherever this court has power to make an order in consequence of having jurisdiction over the subject matter of the suit or proceeding, and which a person is bound to obey in consequence of his being either actually or constructively a party to the suit, it may enforce obedience to such order by the process of injunction, under the seal of the court ; which is the usual way of giving notice of its orders and decrees to-those who are not actually or constructively present in court. Thus in the case of Creagh, a lunatic, whose property was under the control of the court, in the hands of a committee, an injunction, founded on a petition merely, was' issued, to restrain the tenant of the estate from committing waste there-on. (1 Ball & Beat. 108.) And in Casamajor v. Strode, (I Sim. & Stu. 381,) where a person, not a party to the suit, had becom e a purchaser under the decree, the court decided that' he had thereby submitted himself to its jurisdiction, as to all matters relating to him in that character, and might by order be compelled to pay the purchase money. He was therefore enjoined from committing waste on the property sold until the purchase money was paid. It is also the ordinary practice of the court, where it has made a decree for an account and1 distribution of the fund in the hands of executors and trustees, to restrain legatees and creditors, not parties.to the suit, - Irom proceeding at law against the executors or trustees , whether such. creditors or legatees have come in and proved their debts under the decree or otherwise. And this is com sfantl-y done by petition in the original suit, and without the expense of a new bill against the parties enjo.itied. • (Beauchamp v. The Marquis of Huntley, Jacob’s Rep. 546. Farlon v. Wilson) 11 Price’s Rep. 95. Eden on Inj. 25.) . go also in proceedings before- the, English, chancellor in bankruptcy, which is not strictly a proceeding in the court of chancery, it. is his constant practice-|o exercise the power of making ■ orders affecting -the rights of persons who' are actually or constructively parties to the proceedings and to enforce obedience to such orders by process of injunction, under th e great seal, or by commitment. (Ex parte Hardenburgh, 1 Rose’s Rep. 204. Ex parte Pease, id. 232. Ex parte Figes, 1 Glyn & Jam. 122. Ex parte Gould, id. 231.; Ex parte Hawkins, 1 Mont. & M’Arth. 115.)

■ In the case now before me the court has jurisdiction over the.parties who have appeared to oppose this application. It will be. necessary to direct a reference to a master, so as to give, both parties an Opportunity to examine witnesses, as to the bona tides of the sale, who may be unwilling to make af- ■ fidavits of the facts., / The ends of justice therefore require a temporary stay of the. proceedings at law until- this court can dispose of the question now pending before it, and an ■ injunction must issue accordingly ; unless the plaintiffs in the suit at law will stipulate on the trial to waive the objection that no discreet person was joined, with the. administratrix. in the sale and conveyance. , , ,

The other objections to the regularity of the proceedings such as the neglect of the surrogate to appoint guardians for the infant, children, and the question whether he could au- ’ thorize.the administratrix to decide that apart of the lot could not be' sold without ■ prejudice, to. the heirs, or whether he should have examined, ánd adjudicated, upon that point-himselfe before the order of sale was made, must be left open for the decision of the court of law.. If these are' defects which render the title acquired under the sale invalid at law, they cannot be cured by the chancellor on this petition. And the purchaser must seek his remedy against the administratrix and her husband, on the covenants in the deed ; or if he has any equity as against the heirs at law, on the ground that they have been actually benefitted by the proceeds of the sale, he must seek his relief by bill against them, in the usual manner.


text:
    Graham vs. Stagg.
    The court of chancery will not entertain jurisdiction of a cause upon the ground that the complainant, by mistake, interposed a plea in a suit at law, which did not cover his defence to such suit; where, by the ordina. ry practice of the court in which such suit was pending, he would have been permitted to amend.
    Although a jurat to an answer is not in the precise form prescribed by the rules, yet, if the answer is retained by the complainant five months without objection, the informality cannot be urged by him as a ground for refusing a motion to dissolve an injunction; especially where the jurat would be deemed sufficient upon an indictment against the defendant for perjury.
    January 24th.
    This was an application to dissolve an injunction, on the coming in of the answer. The facts appear in the opinion of the court.
   The Chancellor.

The complainant was sued at law upon the covenants, contained in a lease to him from Stagg, for the recovery of the rent of the demised premises. The only equity charged in the bill is that the complainant assigned the lease to one Houston, and that Stagg took from the latter a surrender of the lease, and thereby discharged the lessee from his covenants. The answer of the defendant denies all knowledge, information or belief that any such assignment was made, or that the defendant ever had any transactions whatever with Houston, or any other person, as to a surrender of the lease. On the contrary he alleges that long after the pretended assignment the complainant continued to pay the rent, and until he became insolvent and left the state. That in consequence of the neglect of the lessee to pay the assessments, according to his covenants, the premises were sold for a term of years, not yet expired, by which the defendant has lost all remedy for the recovery of the rent, except by the suit on the covenants. The affidavit, made at the time a mortgage of the premises was given, is fully explained, even if the defendant was not technically correct in point of law in saying the premises were free of incumbrances, dee.; for he says the mortgagee, at the time of making the affidavit, was distinctly informed of the existence of this lease. All the equity of the bill is therefore denied by the answer. If all the facts alleged in the were true, I am inclined to think the complainant had a perfect defence at law, by the ordinary application to the equitable powers of the court of law to amend his plea. This court ought not to take cognizance of a cause merely because a party has by mistake put in a plea which does not cover his defence in a court of law; when by the ordinary practice of that court he would be permitted to amend. The objection that the jurat to the answer is not in the precise form prescribed by the new rules might have been sufficient to have prevented the filing of the answer, or as the foundation of a motion to set it aside. But after keeping it in his possession five months without objection, it is too late for the complainant to urge this informality as'aground for refusing this motion. The form of the attestation in this particular case is sufficient to make it perjury in the defendant, if he ever took a surrender of the lease, or discharged the complainant or any other person from liability on the covenants. It in the same form as the jurat to the bill on which the injunction was allowed.

The injunction must therefore be dissolved.


text:
    Douw vs. Shelden and others.
    A bill to iforclose a mortgage given to secure the payment of $600, at the expiration of two years from the date, with interest semi-annually, upon which, at the time of filing the bill and at the hearing, there was only $42 due for one year’s interest, cannot be sustained, as the matter in controversy does not exceed the value of $100.
    And the court could not entertain jurisdiction of the cause under the statute, although the master should report that the mortgaged premises were so situated that they could not he sold in parcels, and that the defendant was in possession and was insolvent.
    "Whether in such a case the court would sustain the bill, if the complainant had no other remedy, as where the whole amount of the money secured to be paid by the mortgage was less than $100, and the defenant was in possession and insolvent, and the mortgage contained no power of sale, or there were subsequent incumbrancers 1 Qumre.
    February 7th,
    The bill in this cause was filed to foreclose a mortgage given by the defendants to the complainant, conditioned to pay $600 at the expiration of two years from the date, with interest semi-annually. At the time of filing the bill, and at the hearing, there was only $42 due for one year’s interest on the bond and mortgage; but the master reported that the mortgaged premises were so situated that they could not be sold in parcels, and that the defendant was in possession and was insolvent. The only question was whether the court was authorized to make any, and if any, what decree, on the bill taken as confessed, under these circumstances.
   The Chancellor.

Previous to the adoption of the present revised statutes it was the settled law of this court that it would not entertain jurisdiction of a cause where the matter in controversy, and for which the suit was brought, was less than £10 sterling. It was so held by Chancellor Sanford in Mitchell v. Tighe, (1 Hopk. Rep. 119,) in a case like the present, where one year’s interest only was due on a mortgage for $500 ; the principal of which had not then become payable. And in Fullerton v. Jackson, (5 Johns. Ch. Rep. 276,) on a bill filed for $28 interest due on a legacy of $200, payable at a future day, Chancellor Kent dismissed the bill at the hearing; although the executors put in an answer admitting assets, and offering to pay the interest due as the court should direct. This bill could not therefore have been sustained, even before the revision of the statutes, without showing that the complainant had no other remedy. The present law makes it a duty of the court to dismiss every suit concerning property, where the matter in dispute exclusive of costs does not exceed the value of one hundred dollars. (2 R. S. 173, § 37.) The power of the court to order a sale of the whole premises where a part of the mortgage money only is due, is merely incidental to the right to decree a sale and a sat isfaction of what has actually become due. This suit is in fact to obtain payment of the $42; and if the court has not power to make a decree as to that, the incidental right to order a sale of the whole premises, to prevent a sacrifice of property, cannot confer on this court the necessary power. Perhaps in a case where the complainant had no other remedy; as where it appeared from the bill that the whole amount of the mortgage money was less than $100 ; that the defendant was in possession and was insolvent, so that satisfaction could not be obtained by a suit at law, and that there was no power of sale, or that there were subsequent incumbrancers, so that the mortgage could not be foreclosed by advertising for six months, this court might consider it as an implied exception in the statute. Even in such a case, the facts to take it out of the general provision of the statute should all be stated in the bill. Here there is no allegation in the bill that the defendant was insolvent at the time it was filed; and there appears to be no subsequent incumbrances on the premises; and it also appears affirmatively that there was a power of sale in the mortgage which would have enabled the complainant to foreclose it at law. I regret that it is not in the power of the court to give to the complainant a remedy in this suit, under the circumstances detailed in the master’s report; but I am satisfied it cannot be done without violating the provisions of the statute, as well as overturning the decisions of my predecessors, and the settled law of the court.

The bill must therefore be dismissed, but without prejudice to any of the complainant’s rights.


text:
    McDougall vs. Miln.
    Vvhcrea bill, in addition to the discovery sought, contains a prayer for general relief, and a replication is filed to the answer, the defendant cannot obtain an order for costs on motion, as upon a mere bill of discovery.
    If there is no ground for relief in such a case, the defendant must obtain the usual orders to produce witnesses and to close the proofs, and then bring the cause to a hearing in the usual manner, in order to obtain his costs.
    March 1st.
    The bill in this cause was filed before the vice chancellor of the first circuit, for a discovery of the consideration of two certain bills of exchange on which the complainant had been sued at law. In addition to the prayer for discovery, the bill contained a prayer for general relief. After the defendant had perfected his answer, a replication thereto was filed by the complainant. The defendant then moved for costs, as on a mere bill of discovery. The vice chancellor denied the motion, and directed that the cost of the application abide the event of the suit. From this decision the defendant appealed to the chancellor.

      G. Edwards, for the appellant.

      D. j0. Field, for the respondent.
   The Chancellor.

The decision of the vice chancellor in this case is beyond all doubt correct. This is not a bill of , discovery, but a bill for relief; as it contains a general prayer to that effect. The proper course therefore for the defendant is to obtain orders to produce witnesses and to close the proofs, and to bring the cause to a hearing in the usual manner. If it then turns out that the complainant is not entitled to any decree against the defendant, and that his bill was improperly filed as a bill for relief, he will of course be decreed to pay the whole costs of the litigation. Whether it is possible for the complainant to make out by evidence a case which will entitle him to any relief upon this bill is a question not necessary now to determine. (See 8 Price, 522.)

The order of the vice chancellor must be affirmed with costs; and the case must be remitted back to him that such further proceedings may be had in the cause as may be necessary.


text:
    The People vs. L. A. Spalding. The Same vs. A. H. Spalding.
    An affidavit to set aside proceedings for irregularity, should he made either by the party or his solicitor. The affidavit of the counsel is not "sufficient, unless an excuse is shown for dispensing with the affidavit of the party or the solicitor.
    An affidavit may be sworn to before any proper officer, although he is counsel for one of the parties, or is a partner of the solicitor in the cause.
    The rule prohibiting the solicitor or attorney of a party from taking the affidavit is confined to the solicitor or attorney on record.
    The provision of the revised statutes prohibiting a master from acting as such in a cause in which he is counsel, does not extend to the mere taking of an affidavit.
    The breach of an injunction regularly issued is a contempt of court; and in a proceeding against a party for such contempt, the court will not look into the merits of the cause in which the injunction issued.
    The revised statutes have made it the duty of the court, in a proceeding by attachment to enforce the civil remedies or to protect the civil rights of parties, to impose a fine sufficient at least to indemnify the relator for the injury sustained by the contempt, and to satisfy his costs and expenses.
    These causes came before the chancellor on two several appeals from decisions of the vice chancellor of the 8th circuit. The proceedings in each cause were substantially the same. The first appeal was from an order in each case by which the vice chancellor refused a motion made by the defendants to set aside the attachment issued against them for a breach of an injunction in a cause in which S. R. Hathaway- and others were complainants. The other was from the final order and decision of the court declaring them guilty of a contempt by a breach of the injunction; and adjudging them to pay a fine of $25 each, together with the costs of the proceedings against them respectively. The questions raised by the appeals are stated in the opinion of the chancellor. The appeals were submitted on written briefs.

      M. T. Reynolds A. Sampson, for appellants,

      B. F. Butler V. Matthews, for respondents.
   The Chancellor.

The question raised by the first appeal in each of these causes is whether the attachments were regularly issued on affidavits sworn before Hiram Gardner, a master in chancery at Lockport. It may be proper to remark that the affidavit, on which the motions to quash the attachments were founded, was wholly insufficient. It was not made by the defendants or their solicitor, but by their counsel. He does not pretend to have any knowledge of the facts on which the exception was founded, except from hearsay ; and no excuse is offered why the affidavit was made by the counsel instead of his clients, from whom the information was probably obtained. If the defendants believed the information was true, there appears to be no good reason why the affidavit was not sworn to by themselves. By the affidavit of one of the relators it appears that the information that Gardner was counsel for the complainants in the suit was not correct. He drew the affidavits and took the oath of the deponents to the same at the request of the relators, and in pursuance of the instructions of the solicitor and counsel in the cause, who resided about 60 miles from the place where the witnesses were found.

If the suggestion contained in the affidavit had been correct, the fact that an officer before whom an affidavit was taken is counsel for the party, is not a valid objection, if he is not the solicitor or attorney on record. The rule which excludes an affidavit taken before the attorney is merely technical, and has never in this state been extended beyond the case of the attorney or solicitor on record. In Willard v. Judd, (15 John. R. 531,) the supreme court refused to extend the principle to the counsel in the cause. And in Hallenback v. Whitaker, (17 id. 2,) the same court decided that it did not extend to the partner of the attorney on record, although he was interested in the profits of the business. The supreme court reluctantly consented to adopt the rule in the case of Taylor v. Hatch, because they found the prac-

tice to be thus settled in the court of king’s bench. But the ^atter court has never extended the rule beyond the attorney on record ; and in Goodtitle v. Badtitle, (8 Term. Rep. 638,) that cpUrt held that it did not extend to an affidavit taken before the clerk of the attorney on record. (See also Cocksedge v. Richwood, in C. P. Barnes, 45, S. P.) In Read v. Cooper, the court of common pleas in England held that an affidavit taken before the attorney in fact of the party in the cpuntry, but who was not the attorney on record, blight be used in the cause. (2 Rose’s Rep, 127.) The same distinction was again recognized in that court in Williams v. Hockin,, (8 Taunt. 437,) where Gibbs, Ch. J. observes: “We are,of opinion that there is no objection to this affidavit being received ; for the rule only says, the affidavit shall not be sworn before the attorney in the cause.” The only case which I have been able to find carrying the objection any farther is Batt v. Vaisey, on the law side of the court of exchequer, (1 Price’s R. 116,) in which an affidavit was rejected because it was sworn to before the partner of the attorney on. record. But in a more recent case before the same court, Smith v. Woodroffe, 6 Price, 230,) the Lord Chief Baron decided that the rule which¡ precludes the solicitor on record from taking an affidavit in the cause did not apply to proceedings on the equity side of that court. , A rule of the court has since been adopted, precluding the solicitor of the party, iii a suit upon the, equity side, from taking an .affidavit. (9 Price’s Rep. 478.) And in Cooper v. Archer, (12 id. 149,) the rule was extended to the actual solicitor for the party, although he Was not one of the four attornies. of that court, Who- alone can appear as such on the record. But in a still more recent case in the exchequer it was held that the rule did not extend to an" affidavit of the service of process, or. of a declaration of ‘ejectment,, which may be sworn to before the attornéy or solicitor in the cause. So also in the king’s bench, an affidavit to hold to bail may be sworn to before the attorney on record. The only cases in chancery which ! have found, are Ex parte Hogan, ( 3 Atk. 813,) where the solicitor to a commission of lunacy was not permitted to take the affidavits on which to found the commission and Ex parte Brochhurst, (1 Rose’s Rep. 145 ;) where 8ie same principle Was' applied to the case of the solicitor to a commission of bankruptcy. In no case, to my knowledge, has the rule been applied in chancery to any other than the ■solicitor on record. This also appears to be the rule in all the other courts in England, except in the exchequer where the restriction has recently been carried a little further, .in consequence of the peculiar regulations of that court, in limiting the nominal attornies of the court to four.

As it is a mere technical rule, and as there was no pretence in these cases that any injury had resulted to the defendants by the affidavits being sworn to before the officer by whom they were prepared instead of resorting to another commissioner, the vice chancellor was bound to pursue the settled practice of the court as he found it. He had no power to adopt a different rule of practice,' and would have been clearly in the wrong if he had set aside the attachments on this •ground, , . .

The provisions of the statute prohibiting masters .from acting as such, in causes- in which they are concerned- as solicitor or counsel, was never intended to apply to the case of the mere taking of aú affidavit; and even if they did, this case does not come within the prohibition." The orders refusing the motions to set aside the attachments must therefore be affirmed, with costs to be paid by the appellants.

The, next question is upon the appeals from the- final, orders and decrees of the vice chancellor, adjudging the defendants guilty of a. breach of the injunction., And here it may be proper to observe, that in deciding that question he had nothing to do with the merits of the cause in which the injunction issued; Neither can the chancellor take that question into consideration on this appeal. While the injunction remained in force, it was the duty of the vice chancellor to punish every breach thereof; and in no case can a defendant be permitted to disobey an injunction regularly issued, whatever may be the final decision of the court upon the merits of the'cause. If there is not sufficient equity on the face of the bill to support the injunction, the proper ".course for the defendant is to apply at once for a dissolution, agreeably to the provisions of the 34th rule of the court; and he, may again, move the court upon the coming in df his cm-.s'iver- .In the decision of this appeal, it .is therefore unnecessary' for me to express any opinion upon the main question -n tjie Gaug6j whích' I have not yet had leisure sufficiently to examine; although upon the hearing of that' appeal, I had a strong impression ,as to what must be the decision upon the general principles of equity, . •

As to the question whether thére had been a' breach of the injunction depended upon matters of fact principally, it is unnecessary to do more on this branch of the case than to. state the conclusion at which I have arrived. By the terms of. the injunction, the defendant and his agents werd prohibited from turning away from the race leading to the complainant’s. mills; the whole- or any part of the water leased to the complainants iby the lessees of the surplus waters; on which thé Complainants had. procured for the use of their mills;,-and also from .using any,part of the said-water for the purpose of propelling the mills Of the defendant. As the owners of the surplus waters only intended to permit so'much water to .pass from the canal into that channel as the" complainants were entitled to tinder their lease, it is atleast'doubtful whether the’using of any part of that water by the- defendant's was not a .breach of this injunction. But even if théy were au-. thprized to'take what was not really wanted by thé oom••pláinants, it is -evident from the testimony that the -complainants’ mills have riot at all times -had a full supply; by which they have sustained much damage. And this injury is clea-rdy attributable to the diversion of the water .by the -défend- ’ ants,-in violation of'the. spirit aswell-as of the'letter of-the injunction. ■' ■ , 1 ‘ ‘ ■ -;

The'objection as. to -the'extent of the fines imposed, cannot be sustained.- The statute has made it the duty of -the -court; in all cases of proceedings by attachment, to-enforce the civil - remedies and protect the, civil rights of parties; to impose-a'fine sufficient at least to indemnify'the relator,-arid -to satisfy his costs and expenses. (2 R. S. 538, § 21.) • Every person who reads the. examinations-and testimony in this" ca'se, must be satisfied .that if the vice -óhahcéllor ■ erred in -relation to the amount of* the "fine, -it. was in not making it sujficiently large to indemnify the complainants, as directed by the statute, for the damages' they had sustained by this misconduct of the defendants. It does not lie with the appellants, however to complain that the fine was much less than the' law required the court to impose on them for the indemnity of the relators. '

The final orders of the vice chancellor must therefor be affirmed, with costs.


text:
    Burrall vs. A. C. & A. Raineteaux.
    After general order for farther time to answer, the defendant cannot put in a demurrer, except on special leave by the court; and if he put in such demurrer without leave, it will be ordered to be taken off the files for irregularity.
    The 125 th rule does not authorize the vice chancellor or master to grant a chamber order, giving the defendant further, time to demur.- To obtain ■ such an order, the application must be made to the court, and the order must be entéred with the register or clerk.
    March 1st.
    This was an appeal from an order of the vice chancellor of the first circuit. On the I9th of May, a notice of the order to answer in forty days, was, served on the solicitor of the defendants. On the 29th of June he applied to the vice chancellor, under the 125th rule, and obtained an order giving the defendant 20 days further time to put in an answer; which was subsequently reduced to 15 days. And within that time the defendants, instead of answering the bill, filed a demurrer thereto. On an application to the court, tho vice chancellor ordered the demurrer to be taken off the files; with costs to be paid by the defendants. From this decision the defendants appealed to the chancellor. 1 . :

      W. Mulock, for the appellants,
    contended that the order extending the time to answer, gave the defendants the same right to demur to the bill during the period of extension, which they had before the original order to answer expired ; that the reason of the rule adopted in England did not ap-

      ply to the courts here. He cited Cooper’s PI. 113, 114 , Barton’s Suit in Equity, 105 ; Taylor v. Milner, 10 Yes; 444-,

      j) j) Field, for the respondent.
   The Chancellor.

It is a well" settled rule of .practice . in the English court of chancery, that a defendant cannot put in a demurrer without a special permission of the court, after he has obtained a general order for further time to -answer ; and if he does file such demurrer, it will be ordered . off the files for irregularity, with costs. Dyson v. Benson, Cooper’s Rep. 110. 4 Bridg. Dig. tit. Ans. 3, Demurrer, 7. 1 Wils. Ch. Rep. 468. 3 Swans. Rep. 683. Where the defendant wishes for further time to demur, 'he must obtain a special order from the court for .the time to > answer,plead,, or demur. But if through inadvertence he has obtained a general order to a,nswer only, the court may, under peculiar circumstances, and upon due notice to the adverse .party, give him special permission to put in a demurrer, notwithstanding the general order for "time to answer. . Although the mode of compelling an answer is somewhat varied by the practice of this court, it was never intended to change, this . salutary principle of requiring the" party to file his demurrer within the ordinary time for answering, unless the court for . special reasons thinks proper, to give him further time to demur.as Well as .to answer. Forty days is ample time for -a' defendant to - examine' the bill, and decide whether it" should •be demurred to or ansWered ; but it may frequently require ' a much longer time to prepare a proper answer. ‘ The time •for demurring by our practice, being .five times as long as it is in England, very few cases pan occur where the. court would be justified in extending the time to demur ; although it is alnlost a matter of course, to .grant one order for time' to answer, in litigated causes, where the object of the de-. fendant is not mere' delay. The order in this case was a mere chamber order, granted out, of court under -the prqvis-" ions of the 125th rule,' and was not .entered in the minutes, It could not therefore have been any . thing more than 'a mere, ■ order to answer. Even if .the vice chancellor had intended to give further time to demur, he had not the power to grant such an order, out of court, under that rule. As the suit was pending before him, he might, under the 126th rule, have granted further time to demur, on special cause shown. But orders made under the last mentioned rule, and all other orders made by the court, must be entered with the register or clerk; which is the only correct mode of authenticating the proceedings and orders of the court.

The filing of a demurrer, after the defendants had applied for, and obtained this chamber order for further time to answer only, was irregular; and the decission of the vice chancellor was correct, and must be affirmed, with costs. The proceedings on this appeal must be remitted to the vice chancellor, that the costs may be there collected; and that such further steps as are necessary may be taken to compel the defendants to answer the complainant’s bill.


text:
    Eager and others vs. Price and others.
    A supplemental bill cannot be filed without a previous order of the court git"' ing permission. But such order may be granted on an ex parte application.
    Where an injunction is asked for on a supplemental bill a copy of the bill is usually served on the party, if he has appeared in the cause, together with a notice of the application. And if the court makes an order for the injunction, leave to file the bill is necessarily implied in such order.
    On an ex parte application to file a supplemental bill, the court only examines the question so far as to see that the privilege is not abused for the purposes of delay and vexation to the defendant.
    In a doubtful case the court may direct notice of the application to be given to the defendants who have appeared.
    Where an original bill was properly filed by a creditor for to reach the property of the defendant after the return of an execution unsatisfied, held that a supplemental bill was proper to reach subsequently acquired property to satisfy the same debt. ,
    The court will not permit a party to file two original bills, and carry on two suits at the same time against the defendant to satisfy the same debt.
    The judgment creditor only acquires a specific lien upon the equitable property which belonged to the defendant at the the time of filing his bill, or upon the proceeds thereof. If he wishes to obtain a priority as to subsequently acquired property, he must file a supplemental bill.

      The court will not permit supplemental bills tobe filed in such a case, mere.; ly to harass the defendant, or to deprive him and his family . of his’ daily , earnings. . , '
    ' If a supplemental bill is unnecessarily or improperly filed, it may be dismissed at the hearing, although the defendant, obtains a decree on the original bill.
    Upon a judgment creditor’s bill the complainant may. reach the defendant’s, interest in the effe.cts of q, copartnership, after payment • of the partnership debt and satisfying all prior equities in favor of his copartners. •
    The policy, of the' present laws of-this state is to rélieve the unfortunate debt.. 'or from imprisonment; but,. at the same time, to- compel him to surrender up aU his property' and effects, or so much thereof as is necessary to satisfy the just claims of his creditors. And the court of chancery will not permit him, by .any shift or device, to place his property beyond their reach:
    The complainants, being judgment creditors of'the defend--, ant Price, filed their bill before the-Vice, chancellor of the' first circuit to obtain satisfaction of'their'debt out of his eqüita: ble property. And the usual ^injunction was granted thereon, Price demurred to the' bill, which demurrer on argument was overruled. From -that decision he,áppealed to "the chancel-' lor;-which appeal has pot yet been disposed of. The com- " plainants afterwards prepared a supplemental' bill, setting forth those proceeding, and showing among other things that 1 since the" filing.of the original" bill, Price -had become the owner of 25Ó shares in the stock of the Harleem Canal’ Company, the par valúe of. which was $5.0 á-'share; .and. that since the filing of the original."bill he had, also received upwards of - $2000 in money from" another source. Price and.' the; Harlsem company were made - defendants in the supplemental bill. " This bill prayed for an injunction to restrain Price from selling or assigning- the stock, and the company from permitting- a transfer thereof;' and that the same might be, sold, and applied to. the satisfaction of the c'omplainants’judgment. 'An ex. parte application for the injunction having been made to the vice chancellor, he directed" notice thereof ’ to be given to the defendant. Price, which was done-accordingly. On. the Hearing of the parties before court, the motion for the injunction was denied with costs,; From that ■ decision the complainants applied to .the''chancellor.
    jff. Bleeclter, for the appellant.-^
    , J). Selden, -for Price- the respondent.
   The Chancellor.

The objection that the supplemental bill was filed without a previous order does not appear to be a valid a nswer to the application. There was no necessity of filing it previous to the argument of the motion, unless the vice chancellor intended to direct an order to show cause why the injunction should not be granted; which does not appear to have been intended. But if there was sufficient in the bill to authorize the granting of the injunction, it would then have been filed as a matter of course; as the injunction could not issue until the bill was actually filed. If the injunction was proper, the fact that the complainants had through inadvertence, placed their bill on file a few days too soon, ■ would afford no ground for refusing the application then made. If they showed a case entitling them to an in junction on the supplemental bill, the order for leave to file the bill was a matter of course; and, if necessary, the complainants should have been permitted to re-file it, as of that time.

No reasons are stated for the refusal of the application; but I presume the vice chancellor did not suppose it was necessary for the complainants to get an order for leave, and actually file the supplemental bill, before notice of the motion could be given. The usual practice is to serve a copy óf the supplemental bill on the defendant who has appeared in the cause, together with a notice that the court will be applied to, upon such bill, for an order that an injunction issue .according to the prayer thereof. If the injunction is allowed, the leave to file the bill is always implied in the order, if it is not stated in express terms. Although a party may not file a supplemental bill without permission of the court, leave is usually granted on an ex parte application. If there is probable cause for filing it, the leave will be granted of course, and the court only examines the question so far as to see that the privilege is not abused for the purposes of delay and vexation to the defendant. And in a case of doubt, the court may direct notice of the application to be given to the defendants who have appeared.

The affidavit of the defendant Price that the stock which he had acquired in the canal company was partnership property, in which .another person was interested, and that.- the stockholders are personally liable'for the debts of the com-' pany, could furnish no valid objections to the granting of -the injunction. If it is unsafe even for this insolvent defendant to continue to hold the stock in his own name, he may apply to the court for leave- to have it sold at auction, or otherwise, and to have the proceeds brought into court, of safely invested in some other way,,to abide the decision in the-cause, or until it shall be ascertained to whom the proceeds will eventually belong. .The provisions of-the revised- statutes for the protection of creditors would be rendered perfectly nugatory if an insolvent debtor could place his property beyond their reach, by' entering into a copartnership and vesting all his effects in that -concern. Where there is a bona fide copartnership, in which the' judgment debtor has' an interest, the claims of the creditors of the firm to priority of payment out of the partnership effects, and the equitable rights of the several partners, as betwen themselves, will all be preserved. But if there-is a Surplus belonging to the debtor, after satisfying all-prior equities, his separate creditors are entitled, to the aid of this court to reach that surplus; so that.it may be appropriated to the payment of their just claims against him as an individual. And he will not be permitted, under pre- ' tence of preserving the rights of his co-partners, or. of the creditors of the firm, to go on and appropriate the property to his own use. From another case recently before me, it is known . to the court that these same complainants are, also proceed: ing against the alleged partner of this defendant to obtain satisfaction of a separate debt against him. Add that he also makes the same objection that he is afraid the creditors of the firm maybe injured, or the-rights of his co-partner-viola- , ted, if he is restrained from disposing of his interest in this stock. The policy of. the law is to relieve the unfortunate debtor from imprisonment ;• but at the same time to compel him to surrender up his property and, effects of every description, or so much thereof as is necessary to satisfy the ■just claims of his 'creditors who may be equally unfortunate'with himself in having placed their property in his hands. And while I have the honor of a seat here, this court, will endeavor to carry the law into effect according to its spirit and intent. The court will, as far as possible, prevent the expense of useless litigation, and protect the really unfortunate against the oppression of their creditors under the forms of law; but will never permit the fraudulent debtor, by any shift or device, to place a part of his property beyond the reach of his creditors. When the man who has lived in ease or affluence becomes insolvent, either by the vicissitudes of fortune, or by his own improvidence, he must learn to recollect and to feel that the property in his possession belongs to his creditors in equity, and not to himself or to his family; and that it is his duty as an honest man to see that it is preserved and faithfully applied to the payment of his debts. If he suffers it to be Wasted in useless litigation it is generally his own fault; for he has a perfect right, before any one has acquired a priority of lien, to assign and deliver over the whole at once, either to the creditors themselves, if they will accept it, or to some faithful and responsible trustee for the payment of all his debts, rateable. He may even give a preference to favorite creditors if he chooses to waive the benefit of a discharge under the insolvent acts.

As it appeal's from the supplemental bill that the stock in question was acquired since the commencement of the suit, if the demurrer to the original bill was properly overruled by the vice chancellor, it seems to follow that this bill is necessary and proper; and that the injunction should have been granted as prayed for therein. If the original bill is defective in substance, so that no decree thereon could have been made at the hearing, the supplemental bill must necessarily fall with it, as the latter is but a continuation of the same suit. But if the complainants were right in filing the original bill, a supplemental bill seems to be the proper mode of reaching subsequently acquired property of the defendant; although in relation to its immediate object, and against the Harlsem Canal Company, it may in some respects be in the nature of an original bill, notwithstanding it is supplemental as to the former proceedings.

This species of bill is recognized by Lord Redesdale as a proper mode of bringing newly acquired interests of the parties, but .relating,to the same subject before the court. (Mitf. Plead. Amer. ed. 49, 50; 4 Lond, ed. 63.) If the defend- ' ant at the commencement- of the suit, has property, of the value'of one hundred dollars and .upwards, which the com-, plainant has a right to have applied in satisfaction of his' judgment, by thé ai.d of this court, he has right to file his hilt for that purpose» He thereby acquires a specific lien on that, property, which entitles .him to a priority of payment out of that fund; subject however- to all prior equities which, existed against the same at the time of the commencement of his suit in this court. Although as against the. defendant himself he might, also Obtain a decree, which would give him the-■benefit of all other property- which belonged to the defendant, at the time the decree, was obtained, yet the original injunction does, .not- restrain the- ■ defendant from .using or disposing- of property which has been subsequently acquired, if it. is iidt the proceeds - or produce of that which belonged to the dependant.at the time the injunction was obta-inéd . If another . bill was filed by the second judgment creditor, the latter- would, obtain a priority as to the newly-acquired property» - So. also a bona fide purchaser, or another creditor, to whom it. has been assigned in payment of a debt, would be permitted to hold it' against the creditor who had filed his bill before the acquisition of that property. If therefore became • necessary for the complainants in this case, either, to file a supplemental-bill, to reach. this, stock and protect it by injunction, -or - to com-, menee a new suit for that' purpose» The expense of' a supplemental bill is but trifling, whén compared with, that of an " original suit. And this court certainly would not, except- id a' case of absolute necessity and to- prevent a failure of justice, allow two original suits,-to be commenced, and carried On áí "the. same-time, between the samé parties, to .obtain satisfaction of the sanie debt.; I think therefore, this was-a - proper case for a supplemental bill, and, that the. injunction .should have been granted as prayed for therein.. :

As the costs of the' complainants, both tin original and supplemental bills, aye entirely in. the discretion of the court, they would not be permitted,to abuse the privilege by‘harassing . an unfortunate debtor-with supplemental bills, having' no other object than to deprive the family of the defendant of the fruits of his daily earnings, or to multiply costs. And if a supplemental bill is unnecessarily or improperly filed, it may be dismissed at the hearing, although the complainant obtains a decree on the original bill.

The decision of the vice chancellor must be reversed, and an injunction must issue, according to the prayer of the supplemental bill; and Price, the respondent, must pay to the appellants their costs on this appeal, to be taxed. The proceedings must be remitted to the vice chancellor that the injunction may be issued accordingly; and that such further proceedings may be had before him as may be necessary to carry into effect this decision.


text:
    Requa vs. Rea and wife.
    Where the master, who was directed to sell mortgaged premises under a decree, had written instructions from the complainant’s solicitor not to sell the premises for a less sum than $2600, the amount of the debt and costs, but through ignorance of his duty the premises were sold for $1000 less, to purchasers who were informed of the instructions, at the time of the sale, and before they paid their bid, the court ordered a re-sale of the property.
    Where the purchasers took possession of the property and made improvements thereon, after being informed by the master that the tax would be submitted to the court, and without waiting for the confirmation of the report of sale, it was held, that they were not entitled to indemnity therefor.
    Where a person becomes a purchaser under a decree of the court of chancery, he submits himself to the jurisdiction of the court in that suit as to all mat. ters connected with such sale, or relating to him in the character of purchaser.
    March 1st.
    This was an application on the part of the complainant to set aside a master’s sale of the mortgaged premises, on a decree of foreclosure. The premises are situate in the county of Cataraugus, and the amount due on the mortgage was about $2300, exclusive of costs. The complainant and his solicitor residing at Albany, the decree was sent to the nearest master, who resided in an adjoining county, with particular instructions to him not to let the premises be struck «if to any one, other than the complainant, for a less sum than $2600. The master supposing it necessary that some, third person should make bids in the name of the complainant, endeavored to procure some one residing at Olean, where the sale took place, to bid off the. property for him. For some reason not explained, no one would consent to bid" as agent of the complainant. At length the master employed a transient person by the name of Davis, who agreed to bid up the property to the sum required; but having made one bid of $1500, he refused to bid any thing more, although urged by the master to comply with his agreement. The master thereupon supposing it his duty to do so, struck off the property to Martin, Bryan and Chamberlain, for the sum of $1502, and gave them a deed therefor. Shortly after-wards the master died ; and the report of the sale has never been confirmed!

      J. L’Amoreux, for the complainant.

      A. Taber, for the purchasers.
   The Chancellor.

It is perfectly " evident it this case that the property has been sold much below its value, in consequence of the master’s violating his instructions through ignorance or a misapprehension of his duties. Although the purchasers deny that they hired Davis not to bid, it is impossible to resist the conclusion that by the device or trick of some one the property was sold much below its value. If the sale is permitted to stand, the complainant will be defrauded of more than $1000 ; as he was willing to give for the property the full amount of the debt and costs, and the mortgagor is insolvent. It is not necessary to express any opinion upon the question whether the purchasers were the originators of the trick, or actually used their influence with others to prevent the property from being bid up to its true value. The master had no right to permit the property to be struck off to a third person below the sum limited in his instructions. He should either have adjourned the sale and. given notice thereof to the complainant’s solicitor, or have "put up the property in the name of the complainant at the $2600, and, if no person bid more, should have struck it off to him at that sum. If he had adopted the latter course the complainant would have been compelled to take the property at that price. Under the circumstances disclosed, the purchasers have no equitable claim to retain the property, as they had full notice before they paid the money and took the deed. The master swears that believing Davis had been induced to betray his trust, he consented to receive their money and give the deed under an express notice to them that all the facts and circumstances would be reported by him to the chancellor for his decision thereon. If they chose to advance the money and take possession of the property after that notice of the equitable claim of the complainant to have the sale vacated, and without waiting for an order of confirmation, it was because they were willing to make an unconscientions speculation, founded upon the trick of Davis and the master’s ignorance of his duty, and they must abide the consequences. Where a person becomes a purchaser under a decree, he submits himself to the jurisdiction of the court in that suit, as to all matters connected with such sale, or relating to him in the character of purchaser. (Cassamajor v. Strode, 1 Sim. & Stu. Rep. 381.) Unless therefore these purchasers are willing to keep the property and pay the complainant the balance of his debt and costs, over the $1502, the property must be resold and put up at the sum of $2600, as on his bid. In that case the money paid by the purchasers must be refunded the sale to them must be set aside, and the deed cancelled; and they must deliver up the peacable possession of the premises to the purchaser on the resale. On the coming in and confirmation of the report of the resale, if the purchasers wish such an investigation, the court will order a reference to ascertain whether the rents and profits of the premises have been equal to the interest on the purchase money paid over to the master; and to enquire into all the tacts and circumstances attending the first sale, for the purpose of ascertaining whether the purchasers have any equitable claim to an allowance out of the purchase money for these damages or costs. But they cannot be allowed for any improvements which they have made on the premises, as they went into possession without authority, before the sale was confirmed ; and after notice from the toaster that there was at least a reasonable probability that, the. sale would be set aside.„ •


text:
    Osborn and another vs. Heyer & Burdett.
    Where two creditors'- had 'filed separate bills against the debtor to reach his property, and in," one suit a receiver had been appointed, and in the other an injunction’ ’ granted, , restraining the debtor from parting with his books and papers, and from collecting his debts, &e. npon an application, to the court, he was directed’to deliver over to the receiver, appointed ini the first suit, all the property and effects m his hands, together with his bo'oks and papers, to be collected, and converted into money for the benefit of such of thé parties as it should subsequently appear were entitled to the same.
    Where the .défendant is’restrained by injunction from collecting his debts,- and preserving or disposing of perishable property, it is the-duty of the complainant to apply for the appointment of a receiver1; and if he neglects to do so, the court will dissolve the injunction so far as to permit the defendant to collect the debts! and dispose of the property himself,
    March 1st.
    This was an application for ari attachment against the defondants for not delivering over to the receiver, appointed in this cause certain books and papers pursuant to the .order .of this court. The defendants.shewed for causé; that they were willing to comply with'the order of the-court, but that they were restrained from parting with the books and papers by an injunction issued on- "another bill filed against them by ■ Henry R. Heyer and others, before thé vice chancellor of the first circuit. The chancellor directed the motion tó stand over, and that notice of the application be given to the complainants in the last mentioned suit. ' Such notice having Been giv.en, an affidavit was'read on the part of those copiplainants,, in which they claimed, an-equitable right to1 the whole partnership funds to which these books" and papers related. ' ;

      D. Seiden, for the complainants.

      J. Rhoades, for the defendants.

      J. Edwards, for H. R. Heyer and others.
   The Chancellor.

It does not appear by the papers before me on this motion, which of these suits was first commenced ; neither do I consider that question material in this case. Here are two suits commenced by different complainants in this court, one before the chancellor and the other before a vice chancellor, against the same defendants, who are admitted to be insolvent, to reach property in their hands which can only be recovered by the aid of this court. One of these parties has obtained an order for a receiver to collect and preserve the property pending the litigation. The other party has obtained an injunction prohibiting the defendants from collecting the debts and preserving the property from waste. In all these cases of bills to reach the equitable property of debtors, on an execution at law returned unsatisfied, it is the duty of the complainant, within a reasonable time after he has obtained an injunction restraining the defendants from collecting their debts, or disposing of their perishable property, to apply to the court and obtain the appointment of a receiver, or to make some other provision for the collection of the debts and the preservation of the property, or the injunction should be dissolved so far as to enable the defendants to preserve it themselves. If the complainants in the other suit, who now resist this motion had applied for and obtained the appointment of a receiver to take charge of this part of the fund, which they now claim, before the receiver in this cause was appointed, they would have had some grounds for resisting this application; especially if' they had given notice of that application to these complainants. In that case the receiver appointed by the vice chancellor would have been the proper person to preserve the fund pending the litigation, and until it was determined to which of the parties it belonged. The receiver appointed in either cause is the officer of the court and holds the fund subject to the equitable rights of. all parties; to be disposed of under the order of the court only. As no objection is made to the receiver already appointed, or to the sufficiency of his sureties, the whole of the property and effects in the hands of the defendants must be delivered over to him, together with the books and papers; to be collected and converted into money, for the benefit of the parties to whom it may hereafter appear to belong. The complainants in each suit are to have notice of all proceedings before the master relative to the delivery of the books, papers and property to the receiver ; and with liberty at all reasonable times to inspect and take copies of such books and papers, if they shall deem it necessary for the protection of their respective rights. The receiver must keep a separate account of all that part of the property and effects of the defendants which it is alleged belonged to the firms or partnerships in which the complainants in the suit before the vice chancellor claim an equitable interest, and of all disbursements and expenses relating thereto. And the complainants in either suit are to be at liberty to apply to the chancellor for such special directions to the receiver, in relation to the execution of his trust, as they may be advised are necessary or proper ; and each party is to have notice of any application which may be made to this court in the premises,

The defendants must therefore forthwith deliver over the residue of their books and papers to the receiver, or an attachment will be issued against them on the production of the master’s certificate of their neglect to comply with the order of the court.

         See 193d and 194th rules, adopted 5th April, 1831, which provide for cases of this description.


text:
    Dows and others vs. McMichael.
    Where the complainant replies to a plea, he admits its sufficiency; and if the truth of the plea is established the bill will be dismissed.
    If at the hearing the plea is not found to be true, it will be overruled as false, and the complainant will be entitled to a decree as on a bill taken as confessed.
    If a plea is overruled as false, the complainant will not lose the benefit of an answer if a discovery is necessary ; but he may have an order to examine the defendant on interrogatories, before a master, as to the discovery sought by the bill.
    March 1st.
    The complainants filed their bill in this cause as judgment creditors of the defendant to obtain satisfaction out of his property which could not be reached by execution at law. The defendant pleaded an affirmative plea in bar of the discovery and relief prayed for in the bill; upon which the complainant took issue. Orders to produce witnesses and to close the proofs were regularly entered, but the defendant produced no evidence to establish the truth of his plea. On the hearing of the cause the defendant made default. The complainants claimed the benefit of a discovery of the property and choses in action of the defendant. The only question was as to what decree they were entitled to on this state of facts.
    $. Dutcher <§• J. Harris, for the complainants.
   The Chancellor.

Where a plea in bar to the whole bill is put in, if the complainant takes issue thereon he admits the sufficiency of the plea, and leaves nothing in question but the truth thereof. If at the hearing the plea is found to be true the bill must be dismissed. But if the plea is untrue the complainant will be entitled to a decree against the defendant in the same manner as if the several matters charged in the bill had been confessed or admitted. If a discovery is necessary, to enable the complainant to obtain the relief sought for by his bill, the defendant cannot evade answering by putting in a plea which turns out to be false. In süch a case, after the plea is overruled as false, the complainant may have an order that the defendant be examined on interrogatories before a master as to the several matters in relation to which a discovery was sought by the bill. (Brownsword v. Edwards, 2 Ves. sen. 247. Hawkins v. Trollop, Nelson’s Rep. 119.)

In this case the truth of the several matters charged in the bill being admitted by the state of the pleadings, there is sufficient to authorise the court to decree , payment and satisfaction of the complainant’s debt out of the property, effects and choses in action of the defendant ; and all the necessary discovery can be obtained upon the proceedings under that decree. There must be the usual decree overruling the plea as false, declaring the right of the complainants to satisfaction out of such property and effects ; referring it to a master to appoint a receiver and take from him the requisite security ; directing the defendant to deliver over and assign to such receiver, on oath, before such master, all his property, effects and choses in action, except such wearing apparel, &c. as is exempt from sale on execution. And the complainants are to be at liberty to examine him, on interrogatories before the . master as to the property, effects and choses in action which he now has, or which he has assigned or transferred to any other person in trust for his family or otherwise, as the said master, may deem necessary, or proper ; with the usual power to the receiver to collect and compromise debts • due to the defendant, and convert the effects into money, and pay the amount due to the complainants, for their debt and costs. And either party or the receiver is to be at liberty to apply to the court for such further or other directions in the premises as may be necessary.


text:
    Doe vs. Green and others.
    If the name of a counsellor, other than the solicitor in the cause, is signed to the pleadings, the charge for perusing and amending the same should be allowed on taxation, unless the party objecting shows affirmatively that the name of the counsel was improperly placed there.
    It is the duty of counsel to peruse and examine the pleadings before they sign them; and they are personally liable, if such pleadings contain scandalous or impertinent matter.
    The solicitor is guilty of a misdemeanor, if he puts the name of a counsellor to a pleading Without his knowledge and consent.
    A second fee is allowed to counsel for perusing and amending a supplemental bill, or bill of revivor, when such bill becomes necessary; but not for perusing and signing an amended bill.
    Where an amended bill was filed by the agreement of the parties, embracing all the facts in the case, and as a substitute for the previous bill and answers to save expense, the complainant, on taxation, was allowed for counsel perusing and amending the same, and for the usual engrossments and copies.
    On an ex parte hearing, upon a bill taken as confessed, the solicitor is not entitled to an attendance fee. But where there is an actual attendance and argument with the counsel of the adverse party, to settle important questions arising on the bill, an attendance fee for the solicitor and a full counsel fee arc taxable.
    The statement of the nature and object of the suit, to be filed in the county clerk’s office, is not a notice within the meaning of the fee bill; and is to be taxed by the folio for the draft and engrossment.
    Notices served on the defendants in mortgage cases, under the 133d rule are specifically provided for in the fee bill; and only 371-3 cents can be taxed for each notice, including copy and service.
    Where the injunction is allowed by the chancellor, it is an act of the cotufa and the charge for filing the certificate of the allowance is not taxable. .
    Notice to the register to set down the cause is not a proper charge under the present practice. The notice of the issue is the only one now taxable.
    No charge for notices, which are not required by the rules or practice of the court, can be allowed on taxation.
    Notice to the register to enter a decree or order is not a proper charge, as the solicitor is allowed for attending in person.
    A charge for an engrossment, or copies of an order or decree to be entered, is improper, as it is to be entered from the draft after it is settled by the court or register.
    The complainant cannot charge for a copy of a decree for the adverse party, unless in cases where the service of such decree on him is necessary.
    Service of a summons upon the defendant to attend the master on the reference is all that is requisite, and an additional notice for that purpose cannot be allowed.

      No allowance can he made on taxation, as between party and party, for the ■ personal expenses of the parties or their witnesses,- or of the officers of the court, as disbursements ,in a cause. ■
    Where a specific allowance is provided in th'e feebillfor, the performance of any service by an officer of the court no additional charge, by way of disbursement in the performance of. such service, can be taxed in 'favor of such ofijeer or any other" person.
    If", a party insists upon items in his bill which are not legally taxable! he' "will be charged with the expense of an appeal from the taxation,- as to such items. t But if the-adverse party appeals to to the court against the taxation of other items .idso, which were properly allowed, each party may be left to to bear his own costs, on the application for a re-taxation, .
    This was an application, on the part of thé, solicitor of the defendant Green, for .a re-taxation of the costs of th.e complainant. On the taxation before the master, various objections weré made to particular ■ items in the bill, on. the grounid'that the services charged were useless or unnessary. As to many other items, it • was objected that the sevicés had never in fact been performed; and evidence of the actual performance qf .such services was required. The complainant’s solicitor put in his own' affidavit before the taxing ■officer, stating, his belief that the folios were , correctly charged, and that the disbursements charged in the bill had actually been made ■; ■ but the affidavit omitted to state that the Services charged had been.actually performed.
    . É.. H. Kimball, for the' complainant.

      J. Ellsworth, for the defendants.
   The Chancellor.

• As almost every item in this bill of ' costs was objected to, either "on the ground that the' service had hot been performed or was unnecessary, of that the" folios were overcharged, it may be necessary to examine the items objected to in detail.' . .

The first objection relates to the charge for a retaining fee for counsel, and for counsel perusing and signing thé bill', decree, &c. It appeared by 'the affidavit of Doe, which was produced before, the taxing, officer, that counsel, .other than the solicitor in the cause, was actually employed. And'.the name of such counsel was subscribed to the bill, and to such of the- subsequent proceedings as by the practice of the court required the signature of counsel. It would be a misdemeanor for any solicitor to put the name of a counsellor to a bill or other pleading without his knowledge and consent. And in Whitlock v. Marriot, (2 Rep. in Ch. 386,) the solicitor for a defendant was ordered to pay £20 costs, for putting the name of counsel to an answer without his consent; and to be committed to the fleet until the same was paid. The fact, therefore, that the pleading is signed with the name of such counsel, is at least prima facie evidence of itself that he has perused and signed the same. If the bill or other pleading contains scandalous or impertinent matter, the counsel whose name is affixed thereto, subjects himself to the payment of costs to the adverse party, as well as to the censure of the court. (Emerson v. Dallison, 1 Rep. in Ch. 194.) He may even be stricken off the rolls if such offences are repeated and continued. It is not therefore to be presumed that he has affixed his name to the pleading, or suffered it to be done by another without perusing such pleading, and-knowing what is contained therein. To justify the taxing officer in rejecting a charge for counsel perusing and signing the pleading where the name of counsel is subscribed thereto, the party making the objection is bound to shew affirmaatively that the name of the counsel has been improperly plaed there, and without authority.

In ordinary cases, the bill and the amendments thereto form but one record, and counsel are not entitled to a second fee for perusing an amendment. But where a supplemental bill or a bill of revivor is filed, the counsel is entitled to charge for perusing and signing the same ; to be taxed against his own client, or as costs in the cause, according to circumstances, and as such service shall appear to have been rendered necessary by the act or neglect of the client, or otherwise. But in this case the amended bill appears to have been filed in consequence of an agreement between the parties, and as a substitute for the former bill and answers, to save expense. Under the particular circumstances disclosed, the charge for perusing and signing this second bill was properly allowed by the taxing officer. , For the same reason, the charges for a new engrossment of the whole bill, including the amendments, and full copies of the same for the solicitors of the respective defendants, were properly allowed.

The amended bill being substituted for the original pleadings, and taken pro confesso by consent of the parties, as to all subsequent proceedings it is to be treated as an original bill taken as confessed, and as if no answers ever had been put in to the first bill. Such was in fact the decision of the court on the hearing of the cause. As to any costs which have accrued since the filing of this amended bill, they must be taxed at the usual rates of allowance upon the bill taken as confessed. But as there were important questions in controversy arising upon the bill itself, which was in the nature of a statement of the facts agreed upon by the parties, -I think the complainant should be allowed for the copy of the bill which was actually made and furnished to the chancellor on the hearing, to enable him to settle the several questions of law and equity arising thereon.

On a decree of course- upon an ex parte hearing, where the bill has been taken as confessed, the solicitor is not entitled to the fee of $5, for attending the court of chancery upon the hearing, although he actually attends with the. counsel employed to argue the cause ex parte. The remarks of Chancellor Kent upon this item in the fee bill of 1818, show that 'the allowance was intended to be confined to cases where the solicitor not only actually attended, but where there was an actual argument of the cause with the counsel for the adverse party ; or, at the least, where the solicitor and counsel for the complainant appeared at the hearing, under á belief that there was to be an actual argument of the case with the adverse party. But even under this construction of the fee bill, the .complainant is entitled to the solicitor’s fee, and to the counsel fee on the hearing. The cause was actually argued on the merits by counsel for all the defendants who appeared in the cause; and important questions were litigated and submitted to the decision of the court; although the amended bill, which stated all the facts truly, was taken as confessed, to save expense. It was therefore such an argument as is provided for in the last clause of tlie 14th section of the present fee bill, (2 R. S. 630,) and not a there evasion to take it out of the operation of the preceding clause of that section.

The charge for subpoena and copies was improperly allowed at three folios. The subpoena can never exceed two folios, unless there are at least thirty parties in the cause. The taxing officer must have allowed the three folios in this case through mere inadvertence. Some precipass were also allowed, in the same .manner, on proceedings since the revised statutes went into operation.

The bill had a double aspect; either to foreclose the mortgage against the lot which Beckman alleged was intended to be conveyed, or to obtain the benefit of the covenants of warranty in relation to that which had been recovered from Green by the ejectment suit. The complainant had probable cause for making the judgment creditors of Green defendants. He is therefore entitled to charge for the statement of the lis pendens to be filed in the clerk’s office, and for a notice to each of the defendants, against whom he made no personal claim, agreeably to the 1.33d rule. But he is not to be allowed for such a notice to be served either on Beekman or the mortgagor against whom he claimed a personal decree in this case. The statement which is filed in the clerk’s office is to be drawn and engrossed, and does not come within the specific provision in the fee bill, allowing 37} cents for a notice, including copy and service. The notice to be served on the defendants in the cause is a “ notice actually served,” and therefore is within that specific provision. Although the solicitor will be very inadequately conpensated for drawing and serving the notices in this particular case, it will be made up to him in the drawing and serving of many other notices in the cause, where the allowance will be found an ample compensation for the service rendered. And as these notices are served with the subpcnna, the actual expense of serving them will usually be no greater than the service of the subpoena alone. There does not appear to have been any evidence before the taxing officer that these notices were in fa.ct given; and the affidavits of the service of the subpoenas do not appear on the files of the court, although the taxing officer has allowed for filing them.

The injunction was allowed by the late chancellor in per# son; which was sufficient evidence to the taxing .officer that it ■ was necessary and'proper'; .especially as, it was never dissolved. ' The charges 'connected therewith were therefore all' properly taxed, except the one for “ filing the certificate of allowance.” This "is only proper when the order is. obtained on the certificate of a vice chancellor, or of an injunction master, under the 30th rule. Every special order "for an injunction, made by the chancellor, is presumed to be "done in open court when, the register is present.', to enter the order as directed. The. only legal evidence of the official acts of the chancellor is the order or decree entered in the minutes of the ■ court; although he frequently endorses his allocatur upon an order, to save the officer of the court the trouble of appearing in person, before him to take down his instructions for the entry thereof. ' '

The master has improperly allowed for a notice to set down the cause, and also for a notice of the issue. This is a double charge and both cannot be allowed. The notice to place the cause on the calendar' states the .time of joining the issue and the class to which, the cause belongs. The'notice of the issue and service, and’ entering the'cause on'the calendar, are. the only proper charges since the order for , setting down the cáusé has been "abolished. The taxing Officers - should only tax -such notices as are necessary in "the progress of a causé, and,which are, required to be given by the rules and practice of the court; and should disallow the charge1 for all such as are ■ given unnecessarily and for" no ■ Other purpose than-to swell a. bill of costs. ■ ■■

. The'charge for engrossing or "'copy of an order or decree. to be entered in the minutes Of the .'court is not taxable. When the draft of the decree or' order has been allowed and settled, by the court, or iegister, it is .to be entered in' the minutes from .such draft; which is not filed as-a record but merely as a memorandum of the decree which is to be entered. The engrossment is useless, and ds never in fact made. The notice' to .the register to enter the decree' must also be disallowed, as the solicitor is allowed for attending the' register with the draft to have the same settled’arid entered. ■

The copies of the decree for the solicitors of the adverse parties, and service with notice, do not appear to be proper charges, and should not have been allowed without some evidence of the necessity of such a proceeding. The service of the summons to appear before the master was all the notice of the decree which was requisite ; and if either of the defendants desired a copy of the decree, it was his duty to procure it for himself. It is not a proper charge against the fund, in which their rights were not the same. The notices to the defendants to appear on the reference, cannot be allowed as it produces a double charge. No other notice than the service of the summons was necessary.

The charge as originally made for the master’s attending and settling his report after argument, was the proper allowance, if neither of the defendants’ counsel appeared to litigate it at that time ; but if both parties appeared to litigate the correctness of his report, he is entitled to three dollars instead of one which was first charged. The notice to the register to enrol the decree, is twice charged; and the draft of the bill of costs and copy for the solicitor’s own use must also be disallowed. The register’s fees for receiving and paying out the money should not have been included in the complainant’s bill, as that is always deducted by him from the fund. As the fee for paying out the money was not, in fact, deducted in this case, that item may be retained. The charges for docketing decree, copies for clerks and postage, certificate of enrolment, and fi. fa. for the residue, must all be disallowed, as the services have not been performed. They could not be necessary, as the fund in court exceeded the amount of the complainant’s demand.

The charge for expenses in going to Albany to procure the exemplification of the judgment in the supreme court must also be disallowed. The clerk’s fees and postage are all that was properly taxable as a necessary disbursement in the cause. Charges for stage fare and other personal expenses of parties, witnesses or officers of the court, cannot be taxed as disbursements between party and party, though they may sometimes be allowed, under peculiar circumstances, as between solicitor and client. No allowance by way of disbursement can be made for the performance of any service, for which a provision is made, in the fee bill, of any officer of the court. Where the service may be performed either by an officer of the court or by another person, the latter is to be allowed for the service at the same rate which is allowed by the fee bill to the officer of the court.

. The complainant’s costs must be retaxed- on these principles ; and the taxing master must not allow for the drawing or entering any order, or filing any paper, if the same has not been actually entered or filed, nor for any other service which has not actually been performed. The statute is explicit on this subject, and as the- defendant’s counsel made the objection distinctly to most of the items in this bill, the provisions of the statute must be literally complied with. As the parties have been nearly equally successful in the allowance and disallowance of items which were deemed objectionable by the defendant, on this appeal from the decisions of the taxing officer, neither party is to be allowed any costs as against the other on this application, or on the retaxation. If a party insists upon having items included in his bill which are not legally taxable, he will be charged with the expense of an application to the court for a retaxation. But if the adverse party wishes to obtain costs upon such application, he must not' object to items.against which no reasonablé grounds can be urged. If the court is unnecessarily compelled to examine all the items of a long bill of costs, and decide upon the correctness of the allowance of each, the appellant who only succeeds as to- part of his objections will not be allowed the costs of his appeal, and order for retaxation.

The residue of the fund in court in this case, together with the amount deducted from the complainant’s costs on retaxation, must be paid over to the solicitor of the defendant Green, to be disposed of as his assignees shall direct.