text:
    Freeland & Hoffman vs. Nott.
    Where a solicitor has an agent, other than the officer who by the act of May, 1840, is required to discharge the duties of an agent, a service of papers upon either will be deemed a good service. And where the service is upon the register, or clerk, as agent under the act, it is not necessary, m the affidavit of service, to state that the suit was commenced after such act went into effect.
    July 21.
    This was an application to refer a cause, and the only question was as to the regularity of the service of the notice of the motion ; such service having been made upon the chancery agent appointed by the defendant’s solicitor, in the city of New-York, instead of being served upon the assistant register, as the agent appointed by the 7th section of the act of May, 1840, concerning costs and fees in courts of law and for other purposes.

      Sidney J. Cowen, for the complainant.
   The Chancellor.

Several provisions of the act, under which this question arises, are so inartificially drawn as to render it very difficult to say what was the real intention of the legislature; especially that clause which declared that the act should not affect any suit or proceeding, nor the fees or costs therein, which should be commenced before the act took effect. If that section should be construed to apply to every proceeding in suits commenced before the first of June, 1840, and not merely to the fees and costs in such suits, it would require different modes of entering and docketing judgments, and different forms of executions in suits commenced before and after that time. Such a construction of the act, although in strict accordance with its terms, would produce endless perplexity and ruinous litigation. And I see no other way to avoid this difficulty than to depart from the literal construction of this section, and to consider it as only applicable to those provisions of the act which relate to fees and costs in suits ; that is, to construe it as if its language was, "this act shall not affect the fees or costs in any suit or proceeding which shall be commenced before the same takes effect.” Upon such a construction of this section of the act it will not be necessary, in the affidavit of service of papers upon a register of clerk as agent, to state whether the suit in which the service was made was commenced before or after the first of June, 1840. The affidavit of service in the present case is therefore sufficient in that respect, although it does not specify when the suit was commenced.

The remaining question is, whether the seventh section of the act precludes the appointment of any other person, as agent of an attorney or solicitor, except a register, assistant register or clerk of the court. Here again the language of the legislature is probably not in accordance with the real intention of the law makers. I presume the object of this section was to relieve the lawyers from the necessity of appointing agents at all the various registers’ and clerks’ offices ; but without depriving them of the right to select their own agents, at those places where their principal business was done, if they thought proper to do so. If this section, therefore, had declared that the register or clerk should be agent at the place where his office was kept, in case no other agent was appointed by the attorney or solicitor, it is probable the real object of the framers of that section would have been better attained. But the language of the section is imperative, as it now stands,that where the rales or practice of the court require the appointment of agents, the register, assistant register and clerks shall be such agents. And it would be doing violence to the language of the statute to say, that the service of papers upon the register, assistant register, or clerk, was not a good service upon the agent of the other- party. There is nothing, however, in the act which necessarily prevents the attorney or solicitor from appointing his own agent also, at the same place, if he thinks proper to do so ; and in such cases I can see no possible injury which can result from considering the service of papers upon such agent as good service. I conclude/therefore, that where the attorney or solicitor has appointed an agent, other than the officer who is designated by the statute, the service of papers upon either must be deemed a good service ; whether the suit in which such service is made was commenced before or after the act of May, 1840, went into effect.

The motion is granted, and the cause is referred to the vice chancellor of the first circuit; to be heard by the assistant vice chancellor,


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    West vs. West and others.
    Under the naturalization act of congress, of 1802, the infant children of aliens, though born out of the United States, if dwelling within the United States at the time of the naturalization of their parents, become citizens by such naturalization. And the provision of that act on this subject is prospective ; so as to embrace the children of aliens naturalized after the passage of the act as well as the childien pf those who were naturalized before.
    July 21.
    The bill in this case was filed by one of the children of Thomas West deceased, against his five brothers and sisters, and the husband and two children of a deceased sister, and against C. Brakefield and J. Millham, for an account of the rents of the decedent’s real estate, and of the surplus monies arising from a sale of such real estate under a statute foreclosure of a mortgage thereon ; and for a distribution of such rents and surplus monies among the heirs at law of the decedent, according to their respective rights therein.
    Thomas West, the decedent, was born in England, and married a native of that country, by whom he had three children, all horn in England. He then married a second wife, who was also an Englishwoman, and had by her four children, two of whom were also bom in England and the other two were born here after his emigration to this country in 1823. He was duly naturalized here, in 1830, at which time all his children were under twenty-one and were residing with him in this state. He died in 1838, intestate, seized in fee of the farm which was afterwards sold under a mortgage previously given ; leaving at his death his seven children surviving him. One of the children afterwards died, leaving a husband and two infant children surviving her. The two children of Thomas West who were born in this country, and who were infants, ap^ peared by their guardian ad litem and claimed the whole fund, on the ground that their brothers and sisters who were born in England were aliens, and could not inherit from their father. The cause was heard upon pleadings and proofs, and upon a case stating the facts,

      A. Van Ingen, for the complainant,

      S. A. Daggett, for the adult defendants, and for Phebe West, E. J. Bohannan and W. H. Bohannan, infants,

      S. W. Jones y for E. West and S. West, infants; the children of the decedent who were born in the United States.
   The Chancellor.

The sole question for the consideration of the court in this case appears to be whether the minor children of Thomas West who were born in England, and who were living with him here at the time of his naturalization, were naturalized with him ; or whether they were still aliens at the time of his death, so as to be incapable of inheriting from him. The provision in the naturalization law of the United States, under which the complainant, and the other children of the decedent who were born aliens, claim to have become citizens, is contained in the 4th section of the act of 1802. (6 Laws U. S. 79.) That section declares that the children of persons duly naturalized under any of the laws of the United States, or who, previous to the passing of any law on that subject by the government of the United States, may have become citizens of any one of the said states under the laws thereof, being under the age of twenty-one years at the time of their parents’ being so naturalized, of admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States.” It is contended, however, by the counsel of the two children who were born here, that this provision was not prospective in its operation, so as to embrace children whose parents should thereafter be naturalized ; but that it was only intended to apply to the children of those who had already been naturalized at the time of the passing of the act. Such a construction might probably have been given to an isolated provision of this kind in an ordinary statute. But in giving a construction to this provision it is proper to take into consideration the fact that it is contained in a general statute which was intended to establish an uniform rule of naturalization ; and that no good reason could exist for applying such a rule to the children of those who had been already naturalized, which would not operate with equal force in favor of the children of those who should thereafter be naturalized, in conformity with the general provisions of that act.

Again ; the act of 1802 was a revision of the former acts on the subject of naturalization. It is proper, therefore, to refer to them for the purpose of giving a construction to the provision under consideration. In the act of 1790, which was the first act of Congress on the subject of naturalization, the mode of naturalizing persons in general is first prescribed, and then the provision in favor of minor children is added as follows ; “ And the children of such persons, so naturalized, dwelling within the United States, being under the age of twenty-one years at the time of such naturalization, shall be considered as citizens of the United States.” The provision, as contained in that act, was clearly intended to be prospective only ; as it could not apply to any others than the children of those who should be thereafter naturalized. But in the act of 1795, which repealed the act of 1790, it became necessary to vary the language of this clause relative to minor children; so as to include the children of parents who had been naturalized under the former act, as well as those who might be naturalized under the new statute prescribing a uniform rule. The language of the 3d section of the act of 1795 therefore, was that the children of persons duly naturalized, dwelling within the United States and being under the age of twenty-one years at the time of such naturalization, and the children of citizens of the United States born out of the limits and jurisdiction of the United States, shall be considered as citizens,” &c. Here the language clearly applies to the children of all persons duly naturalized. And I think there can be no doubt of the intention of congress to embrace future as well as prior naturalizations; so as to make the rule uniform on the subject. Then came the act of 1798, imposing many restrictions upon the naturalization of foreigners, but containing no alteration in the previous law upon the point now under consideration. And in the new and more liberal act of 1802, which repealed all the previous acts, the language of this provision, as to the naturalization of children by the naturalization of the parent, was again altered so as to embrace children of those who were citizens of any of the states before the passing of any law on the subject by congress, as well as the children of parents duly naturalized under any of the United States laws. I have no doubt, therefore, that this provision, in the act of 1802, was intended to embrace the children of those who should thereafter be, as well as those who had already been, duly naturalized under any of the laws of the United States. All the children of Thomas West then were citizens of the United States at the time of his death; and his real estate descended to them in equal proportions, as tenants in common.

A decree must therefore be entered declaring their rights accordingly, and directing the surplus monies arising upon the mortgage sale, and the rents and profits of the farm, from the death of their father up to the time of such sale, to be paid over to them in proportion to their several rights, after paying the taxable costs of all parties out of the fund. The shares of the infant children of the decedent must be invested for their use, in the name of the register, by their guardians ad litem, upon bond and mortgage, or by depositing the same ia„the Trust Company to accumulate.


text:
    Carter vs. Rockett and The New-York Fire Insurance Company.
    Whore the owner of mortgaged premises insures them for his own benefit, and the premises are destroyed by fire, the mortgagee is not entitled to the money payable by the insurers on account of such loss; although the assured was personally liable for the debt secured by the mortgage.
    But if the assured was bound to insure the premises, for the protection and indemnity of another person who had an interest in the subject of the insurance, such person will have an equitable Hen upon the money due on the policy, to the extent of his interest in the property destroyed by the fire.
    Where a mortgagor covenants with the mortgagee to keep the premises insured, during the continuance of the mortgage thereon, and the buildings on the premises are destroyed by fire, the mortgagee has an equitable lien upon the money due upon the policy.
    July 21.
    This was an application to dissolve an injunction restraining thá defendant Rockett from receiving, and the insurance company from paying, the amount due the former upon a policy of insurance, on a house in Westchester county which had been destroyed by fire. It appeared by the complainant’s bill, that in 1836, he purchased the farm on which this house was situated, and gave two mortgages, of six thousand and five thousand dollars, for the purchase money $ the first payable in May, 1840, and the last in 1844. He afterwards sold to Rockett twenty acres of the farm, including the house, and received a little more than half the purchase money ; and Rockett agreed to apply the balance, being §5000, in payment of a part of the §6000 mortgage, on the first of May, 1840. And the complainant, at the same time, procured the twenty acres to be discharged from the incumbrance of the residue of the mortgages. Rockett afterwards insured the house with the New-York Fire Insurance Company for §4000 ; and the house was subsequently burned down. And he having neglected to pay the $5000 on the complainant’s mortgage, given for the original purchase money of the farm, the bill in this cause was filed to reach the interest of the defendant, Rockett, in the amount payable upon the policy.
    C. Edwards, for the complainant.

      C. F. Clark, for the defendant Rockett.
   The Chancellor.

From the statements in this bill, the complainant is in the situation of a mortgagee of the premises upon which Rockett effected his insurance ; or rather, he is in the situation of a surety that Rockett shall pay $5000 to the assignee of one of the mortgages. He has therefore an interest in having that mortgage paid off and if the holder of the mortgage upon the insured premises has a specific lien upon the fund due upon the policy, this complainant would probably be entitled to the relief asked, had he made the holder of the mortgage a party to the suit. I am satisfied, however, that there is no pretence of claim to an equitable or specific lien upon this fund, for the payment of the $5000 of the mortgage which Rockett undertook to pay. A contract of insurance against fire, as a general rule, is a mere personal contract between the assured and the underwriter, to indemnify the former' against the loss he may sustain. But the assured, by an agreement to insure for the protection and indemnity of another person, having an interest in the subject of the insurance, may unquestionably give such third person an equitable lien upon the money due upon the policy, to the extent of such interest. Thus, in the case of Thomas’ ex’rs v. Van Raff’s ex’rs, (6 Gill & John. Rep. 372,) where the mortgagor covenanted with the mortgagee that he would keep the premises insured during the continuance of the lien of the mortgage, and in case of loss that the amount received upon the policy should be applied to the rebuilding of the property insured, the court of chancery in Maryland decided, that the mortgagee had an equitable lien upon the fund received by the mortgagSt under the policy, to satisfy the balance due upon the mortgage which could not be collected upon a foreclosure and sale of the mortgaged premises. A similar decision was made by the court of king’s bench in England, in the case of Vernon v. Smith, (5 Barn. & Ald. Rep. 1;) where the lessee of premises, to which the 83d section of the building act 14 Geo. 3d, ch. 78, was applicable, covenanted with the lessor to keep the premises insured. But a mere lien upon the property insured does not give to the holder of that lien a corresponding claim upon the policy which the owner of the goods has obtained for the protection of his own interest therein ; although the assured is personally liable to pay the debt which is a lien upon the property insured, (Neale v. Reid, 3 Dowl. & Ryl. 158, Beaumont on Fire and Life Ins. 77.) Here the defendant Rockett is personally liable for the payment of $5000 on one of the mortgages upon the premises; but as there was no agreement, either express ommplied, that he would cause the premises to be insureipbr the protection of the rights of the complainant, or of his mortgagee, they have no better claim than any other creditors of Rockett, to the fund which is due to him from the insurance-company.

The injunction should not have been granted upon the facts stated in the bill. It must therefore be dissolved ; with costs to the defendant Rockett, to be taxed,


text:
    Bicknell vs. Field & Southworth.
    Where an action is commenced in this state upon a foreign judgment, and a bill is filed in the court of chancery to restrain the proceedings in such action, upon the ground that the judgment was recovered by fraud, the commencement of the action at law in this state, if any cause of equitable jurisdiction exists, constitutes the cause of a suit in the court of chancery; so as to give to the vice chancellor of the circuit within which such action was commenced, jurisdiction of the suit in equity.
    The court of chancery of Ncw-York has no jurisdiction to restrain parties who have recovered judgment in a court of a sister state from proceeding in the court where such judgment was obtained to collect the same.
    Where a party is sued in this state upon a foreign judgment, recovered upon an attachment of property merely, without service of process on the defendant, and who never appeared in the suit in which such judgment was recovered, the record of the judgment is not even prima facie evidence of indebtedness here ; and the defendant has a perfect defence at law to the action on the judgment.
    Whether any court in this state can inquire into the regularity of a judgment* purporting by the record to have been recovered in a court of a sister state, and where the process in the suit was personally served upon the party against whom such judgment was recovered, Quare ?

    Where a party is sued here, upon a judgment purporting to have beep recovered against him in a sister state, after a personal service of procc^^if such judgment was fraudulently entered, without the authority of thMourt, it seems his proper remedy is to ti-pply to the court in which the judgment was thus entered, to have it set aside; and thus to avail himself of the defence that there is no such judgment in existence.
    July 21.
    This was an appeal from a decision of the vice chancellor of the first circuit, overruling a demurrer to the complainant’s bill. The object of the bill was to restrain the prosecution of a suit in the supreme court, in an action of debt on a judgment recovered by the present defendants, against the complainant and A. Stevens, in the court of common pleas of the state of Massachusetts. Neither of the defendants resided within the first circuit at the time of filing the bill in the cause ; but one of them was a resident of the county of Westchester, and the other resided out of the state. The bill however alleged, that the suit in the supreme court of this state was commenced by the service of the writ upon the complainant in the city of New-York, and that the sheriff returned upon the writ that Stevens was not found within his bailiwick. The complainant stated in his bill that the defendants had declared against him upon a judgment, alleged to have been recovered against him and Stevens in Massachusetts, in December, 1822, for $5601,31 damages and $10,20 costs, in an action of assumpsit ; but that the judgment so declared on was not entered, filed or docketed, at the time alleged in the declaration in the action in the supreme court, nor for many years thereafter ; that no verdict was ever rendered, nor any trial had between the parties in the suit in Massachusetts, nor was any assessment of damages made therein by which that court could or did ascertain what amount, if any, was due to the plaintiffs in that action ; that in or after the month of December, 1835, and not previously, such judgment was entered, through the mistake or collusion of the clerk of the court in Massachusetts, and by the fraud and procurement of the defendants in the present suit, or their agents, without lawful warrant or authority, and without personal notice to the complainant and without proof of the claims of the plaintiffs in that action, and contrary to the rules and practice of that court; and that at the time of the commencement of that suit, and of the entry of the judgment, the complainant and Stevens were not justly and legally indebted to the plaintiffs therein ; but that, on the contrary, such plaintiffs were indebted to the complainant and Stevens in a large amount; and that the claims of the said plaintiffs, if the same were ever valid, were long since barred and outlawed, and were still so barred by the statute of limitations at the time of filing the bill in the present suit. It appeared also by a copy of the record of the judgment annexed to the complainant’s bill, and therein referred to, that the action in which that judgment was recovered was commenced in October, 1822, by a writ of attachment against the property of Bicknell and Stevens,” and'of trustee process against several others, alleged to be their trustees ' or debtors ; that such writ directed the sheriff to attach the of Bicknell and Stevens, and to summon them ánd their said trustees to appear on the third Monday of December then next, in the court of common pleas to be holden at Dedham, to answer Field and Southworth, in a plea of the case upon the causes of action stated in the writ; and that the writ was duly served upon both the principals and those who were alleged to be their trustees. But whether it was served upon them personally, or not, did not distinctly appear by the record. Final judgment was not rendered in the case at the return term of the writ; but was entered upon a petition of the plaintiffs, several years after-wards, as of that time.
    The defendants demurred to the bill for want of equity, and also upon the ground that the vice chancellor of the first circuit had not jurisdiction of the case.

      James Smith, for the appellants.
    The vice chancellor of the first circuit had no jurisdiction. The complainant’s bill does not shew such a case as entitles him to a discovery or relief; the bill and exhibits shew that he legally owes the judgment debt. The complainant also shews that there was no fraud or collusion in the entering up of the judgment at law. And that such judgment was entered by the order of the court, there being in fact but one judgment. The complainant avers that no judgment was obtained against him in 1822 ; we have declared on such judgment, and if we do not produce a record, the complainant’s plea of nul tiel record will prevail.
    J. H. Lee, for the respondent.
    The cause or matter in equity arose within the first circuit. The cause or matter in equity is the wrongful attempt of the defendants to enforce at law a fraudulent claim, to which the- forms of law preclude a legal defence; thus making a court of law an instrument of injustice. This cause or matter in equity arose upon the commencement of the action in the supreme court, by the issuing of process to the sheriff of New-York, and causing it to be served upon the complainant within the first circuit. (Mitf. Pl. 127. 4 Cowen, 158. 10 Wend.
      573. 2 R. S. 347, § 1.) The action at law, it may fairly be presumed, is pending where it was commenced, viz. in New-York ; and so the subject matter in controversy, to some extent, is within the jurisdiction of the vice chancellor. (1 John. Ch. R. 59, 427. 3 Paige, 251. 2 Id. 177, 82.) The fraud in the Massachusetts judgment is a valid ground of equitable jurisdiction. (1 John. Ch. R. 323. Idem, 406, citing 1 Ves. 120, 284, 289. 6 John. Ch. R. 90. 7 Id. 182.)
   The Chancellor.

Two questions are presented for consideration upon this appeal : First. Whether the vice chancellor was the proper judge before whom to file the bill 1 and Secondly. Whether the case stated in the complainant’s bill is a proper subject of equitable cognizance, so as to authorize the court of chancery to grant the relief prayed 1

As neither of the appellants resided in the first circuit at the time of filing the bill, and the subject matter of the suit had no locality, and therefore could not be situated within that circuit, the vice chancellor’s jurisdiction, upon the supposition that the case is one of equitable cognizance, depends upon the question whether the cause of matter of complaint, which authorized the filing of this bill in chancery, arose within that circuit. The only fact that occurred within the first circuit was the commencement of the action of debt upon the Massachusetts judgment, by the issuing of the writ to the sheriff of New-York, and the service of such writ upon the complainant in that city. And if the complainant would have been authorized to file a bill in this court to restrain the defendants from proceeding on the Massachusetts judgment, before a suit had been actually commenced thereon in this state, then it is evident that the cause or foundation of the suit in this court did not arise in the first circuit; although the additional ground of complaint arose from the commencement of the action in the supreme court. On the other hand, if the commencement of the action of debt on the judgment, by the issuing of the writ to the sheriff of New-York, constituted this a proper case of equitable cognizance, and which it would not have been without the commencement of a suit upon the judgment here, then I think the cause or matter in equity arose in the first circuit, according to the true construction of the provision of the revised statutes on the subject of jurisdiction of vice chancellors. (2 R. S. 168, § 2, sub. 1.)

I am satisfied that this court has no jurisdiction over the parties to a judgment obtained in a sister state, to restrain their proceedings in the courts of that state to collect such judgment. (See Meade v. Merritt & Peck, 2 Paige’s Rep. 402.) If there is any ground for equitable relief in this case, therefore, it must be founded upon the fact that these defendants are endeavoring to coerce the payment of a foreign judgment, obtained by fraud, by the action of debt founded thereon in the supreme court of this state j and that the cause of complaint in the present bill, so far as the jurisdiction of the vice chancellor of the first circuit is concerned, arose, if any where, in the city of New-York, by the commencement of the action at law by writ directed to the sheriff of New-York ; and which writ was served upon the complainant there.

Upon a careful examination of the allegations in this bill, I have, however, arrived at the conclusion that the complainant has not made a case which entitles him to any relief-in this court; even if there was no question as to the local jurisdiction of the vice chancellor of the first circuit before whom the bill was filed. It is perfectly well settled, that an action commenced in another state by the attachment of property merely, without an actual service of process upon the defendant, who does not appear in the suit, is a mere proceeding in rem ; and is not even prima facie evidence of indebtedness, in an action brought upon the judgment in the courts of this state. And as there is no allegation in this bill that there was any actual service of the process upon this complainant, or that he was personally summoned to appear and defend the suit in the court of common pleas in the state of Massachusetts, the legal presumption is that he has a perfect defence at law in the action upon the judgment.

Again; if the judgment was fraudulently entered by the clerk, without the authority of the court whose judgment it purports to be, the proper remedy of the complainant appears to be to apply to that court to set aside the judgment, and to take the spurious record off of the files of the court. And the fact that these defendants have already obtained an exemplification of that record would not prevent the complainant from availing himself of the cancel-ling of the original record, as a defence to the action, upon the judgment which had thus been vacated and set aside. The constitution of the United States provides that full faith and credit shall be given, in each state, to the public acts and records and judicial proceedings of every other state. (Const. U. S. art. 4, § 1.) That provision of the constitution is as binding upon this court as it is upon the supreme court. If these defendants, therefore, have obtained a judgment in the court of common pleas of Massachusetts, against the defendant, after actual service of process upon him, the supreme court has the same right, to inquire into the regularity of the proceedings to obtain that judgment, as this court can have. And if this court is authorized to declare the judgment fraudulent and void as against the complainant, he may avail himself of the same defence in the action which has been brought against him, upon that judgment, in the supreme court; as the jurisdiction of this court is only concurrent with courts of law in cases of actual fraud. It is at least doubtful, however, whether any court in this state has any right or power to inquire into the regularity of a judgment recovered in one of the superior courts of a sister state, after a personal service of the process upon the party against whom such judgment was obtained. And it certainly would not be giving full faith and credit to the record of a judgment in a sister state, "which record was duly authenticated in the manner prescribed by the law of the United States, if the party against whom that judgment purported to have been obtained was permitted to allege and show, in the courts of another state, that no such judgment was in fact given, or authorized to be entered by the court; but that the judgment record was made up and filed fraudulently, by the clerk of the court and without authority.

I think the demurrer to the bill in this cause was well taken, and that it ought to have been allowed by the vice chancellor. The decretal order which is appealed from must therefore be reversed, and the complainant’s bill must be dismissed with costs.


text:
    In the matter of Roberts’ Will.
    The provision of the revised statutes requiring wills to be executed in the pre* sence of two witnesses, docs not apply to a will of personal property executed out of this state, by a person domiciled where such will was executed, and who continued to reside there until his death. Neither does it apply to wills of personal estate made before the revised statutes went into effect* although the testator was domiciled here at the time he died.
    A will of personal property made out of this state, by a person who was not a citizen of this state, cannot be admitted to probate by the court of chancery here, unless it was duly executed according to the laws of the state or country where it was made; although the testator was domiciled here at the time of his death.
    The general law of a foreign state or country may be proved by parol, where it does not appear that such law exists as statute or written law, and of which law an authenticated copy of the record might be produced.
    July 21.
    This case came before the court upon the application of J. Calf, one of the next of kin of Catherine Roberts, deceased, to establish the will of her husband, whom she survived, as a valid will of personal estate. The instrument propounded purported to be the joint will of Cornelius Roberts and Catherine his wife, executed at the city of San Carlos de Man tanzas, in the island of Cuba, where they were domiciled at the date of the will, in April, 1825 ; and by which will the survivor was made the sole heir and universal legatee to the other. It was in the mystic form, subscribed by the testator and testatrix at the end thereof, and without witnesses ; and was then enclosed in an énvelope and sealed up ; on which envelope was an endorsement, subscribed by the testator and testatrix, and by an escribano and seven witnesses, stating in substance that Roberts and wife appeared before such escribano and witnesses, and declared that the enclosed package, sealed with eighteen drops of sealing wax, contained their last will and testament, in which they had appointed executors and heirs and ordained other things according to their pleasure, &c. Roberts subsequently removed to New Brighton, in the county of Richmond, in this state, where he died in December, 1837. After his death, his widow applied to the governor of Cuba to have the will proved and opened and registered, as the will of her deceased husband; and the same was done accordingly. And the will and proofs thereof were deposited and registered in the office of Don Juan De Entzalgo, an escribano, or notary, at the Havanna, in March, 1838. After the death of Mrs. Roberts, who died on her passage to this state shortly after the opening of the will, J. Calf, her brother and one of her next of kin, applied to the chancellor and obtained a commission, and letters rogatory, directed to the judges and civil tribunals at the Havanna, to take the testimony of the witnesses there, for the purpose of proving the execution of the will; so that letters testamentary or of administration could be granted thereon by the proper surrogate in this state. By the return to the commission, and letters rogatory, it appeared that the will was duly executed ; in the form appearing upon the will itself and by the endorsement on the envelope. A lawyer, who was one of the witnesses to the execution of the will, and the escribano, or notary, in whose archieves the will was deposited and registered, both testified that it was executed according to the laws of that country ; and by which laws the original will could not be removed for the purpose of being recorded here.

      S. J. Cowen, for the petitioner, J. Calf.

      M. I. Townsend, for the next of kin of decedent.
   The Chancellor.

The provision of the revised statutes requiring wills of personal property to be executed in the presence of two witnesses, does not apply to wills executed out of this state, by persons domiciled in the state or country where the will is made, and who continue to be thus domiciled at the time the will takes effect by death. Neither does it apply to wills made before those statutes went into effect, although the testator was domiciled here at the time of his death. (2 R. S. 68, § 70, § 77, new ed.) As the testator resided in this state at the time of his death in 1837, this will would be valid according to the law of the testator’s domicil when the will took effect by his death, if he had been a citizen at that time. But as he was a foreigner, and there is no evidence that he was ever naturalized here, the amendments of the revised statutes of 1830, under which the present proceedings are instituted, expressly prohibit the admitting of the will to probate, by a decree of this court, unless it was also duly executed according to the laws of the country where it was actually made. (2 R. S. 12, § 69, 2d ed.) There must, therefore, be full and satisfactory evidence that it was duly executed according to the laws of Cuba, at the time of its date.

The witnesses who were examined under the commission in Cuba state, in general terms, that it was executed according to the laws of that country. It is insisted, however, on behalf of those who are resisting this application, that the laws of Cuba could not be established by parol; and that a sworn or authenticated copy of the law should be produced. I think that it is a sufficient answer, to this objection, that it does not appear from the testimony that there is any written law on the subject, of which law an authenticated copy of the record could be produced. Spain has its fuero, or unwritten common law, as well as England and the United States. Indeed it is an historical fact in relation to the laws of Spain, and which therefore may be referred to as such, that most of the general laws of that kingdom, particularly the testamentary laws, were originally derived from the Roman civil law. And, notwithstanding the Visigothic kings attempted to banish the civil law from their dominions, by prohibiting it from being cited or acted on in the courts of Spain under very severe penalties, it continues to exist there.

The right of a testator to make a close or secret will, drawn up in writing and enclosed in an envelope, and declared by him to be his will in the presence of seven competent and credible witnesses who subscribe their names with him on the outside of the package, is distinctly recognized, and the form of making such will described, in the Partidas; the compilation of laws directed to be prepared by Alphonzo the wise, king of Castile and Leon, about the middle of the 13th century. (See 6 Partida, tit. 1, c. 2.) I presume it will also be found in the laws of Toro, published in 1505, which among other things prescribed the forms to be observed in the making of wills ; and which laws were incorporated into the Recopilación of Castile, published about sixty years later, under the sanction of Philip the 2d. (See Recop. Lib. 5, tit. 4, law 1; and 4th Burge’s For. Law, 408.) These codes or compilations, which form the general laws of Cuba and the other Spanish colonies, except where the Recopilación of the Indies otherwise provides for the case, certainly cannot be now considered in the nature of statute laws which must be proved by an exemplification of the original records of the compilation , even if such records ever existed. The testimony then of these witnesses, as to the due execution of this will according to the law of the testator’s domicil, is all that is requisite to authorize this court to admit it to probate.

There must therefore, be a decretal order entered in this matter, establishing the instrument propounded, as a valid will of personal estate ; and directing the original exemplication of the will and the proofs, &c. both in the Spanish language and in the English translation thereof, to be recorded ; and directing the surrogate of the county of Richmond, to issue letters testamentary thereon; or of administration with the will annexed, in the same manner as if the original will had been duly proved before him and recorded in his office.

         See De Bonneval v. De Bonneval, 1 Curties’ Eccl. Reports, 856.


text:
    In the matter of Conklin, a lunatic.
    Where a solicitor appears, in behalf of a person against whom a commission of lunacy is issued, to oppose the same, but the jury notwithstanding such opposition find such person to have been a lunatic at the time of the alleged retainer of the solicitor, such solicitor has no legal claim against the estate of the lunatic, on the ground of contract, for his services as solicitor upon the execution of the commission.
    The court in its discretion may allow to the solicitor of the lunatic his taxable costs, of opposing the commission, where the fact of the lunacy was so much a matter of doubt that the chancellor, if he had been applied to, would have sanctioned or directed such opposition upon the execution of the commission,
    August 4.
    This was an application on the part of J. Brackett, one of the solicitors of this court, for an order directing the committee of S. Conklin, who had been found a lunatic upon a commission issued for that purpose, to pay the petitioner his costs and counsel fees, for opposing the prosecutor upon the execution of the commission. From the petition it appeared that the petitioner was applied to by the lunatic, who from his appearance was of sound mind, and also by his son, to attend on the execution of the commission, and that he attended accordingly one day, six miles from his residence. He claimed for his services $31,74; but bad offered the committee to accept of $25, which they declined paying. The committee had notice of the presenting of the petition, but did not appear to oppose the same.

      J. E. Carey, for the petitioner.
   The Chancellor.

As the person against whom the commission issued has been found to have been a lunatic at the time of his alleged retainer of the petitioner, the latter has no claim against the estate on the ground of contract ; as he is not a creditor of the lunatic, who was incompetent to make a valid agreement to pay him for opposing the commission. And as a general rule, the court will not allow the costs of an unsuccessful opposition ; as a party who is really a lunatic is not benefited thereby.

This court, however, may in its discretion allow costs for opposing the commission 5 where the fact of the lunacy is so much a matter of doubt that the chancellor would have directed and sanctioned such opposition, if an application had been made to him in the first instance. (In Re Knight, Shelf, on Lun. 103.) In this case it appears from the petition, that there were reasonable grounds for believing that the party proceeded against was not a lunatic; and the committee do not appear to oppose this application, as it was their duty to do if they believed the allegations in the petition to be incorrect. The petitioner’s taxable costs will therefore be allowed and paid out of the estate. But the court in such a case does not allow extra charges beyond the amount fixed by the fee bill; as such charges must rest in contract merely. The first item in this bill is not taxable, according to the decision of this court in Ex parte Johnson, (2 Paige’s Rep. 282.) The two last items are also extra charges, and therefore not taxable. The third item of the bill is also overcharged, as only one engrossment is taxable. The copies of the subpoena for the witnesses are not engrossed. (2 Paige’s Rep. 460.) The whole amount of taxable items in the bill is $9,32 ; which sum the committee of the lunatic are directed to pay out of the estate. But as the petitioner claimed three times as much as he had a right to receive, under this decision, he cannot have any allowance for the costs of the application.

Order accordingly.


text:
    New-Orleans Gas Light and Banking Company vs. Dudley and others.
    By the act of May, 1839, to regulate the trial by jury and the taking of testimony in the court of chancery, the court is authorized to award an issue in any case, previous to the taking of the testimony, if in the opinion of the chancellor or vice chancellor before whom the suit is pending, the proceedings in such suit will be expedited, or the costs therein diminished, or a jury trial will be most conducive to the ends of justice.
    But that act does not deprive the court of the power it formerly possessed, to award an issue at the hearing upon pleadings and proofs, where a material fact is rendered doubtful in consequence of conflicting testimony.
    A question of usury arising out of disputed facts, upon the determination of which the right of the complainant to a decree against the defendant solely depends, is a proper case for the granting of an issue before the testimony in the cause is taken ; if the costs will not be enhanced, nor the proceedings unreasonably delayed, by the awarding of such issue.
    Where two or more defendants set up the same matters of fact as a defence, or put in issue the same allegations in the complainants’bill, if a replication is filed to the answer of all such defendants, the issue should be awarded as to all of them, or as to neither; for the purpose of preventing unnecessary expense.
    But where defendants have not a common interest, or the defences set up by them are separate and distinct in character, an issue may be awarded as to one defendant, although it may not be a proper case for an issue as to his co-defendant.
    In setting up a defence of usury to a suit in chancery, the defendant must, in his plea or answer, as in a plea of usury in an action at law, set up the corrupt and usurious agreement distinctly, stating in substance the terms of the agreement; and he must prove it as alleged.
    A plea or answer which merely contains a general charge that the mortgage, for the foreclosure of which the complainants’ bill was filed, is usurious, and was founded upon a corrupt agreement by which the lender of the money was to receive, or in some way obtain, a greater interest than seven per cent, either by a pretended sale of property at more than its value, or in some other way, is bad both in form and substance.
    Where two defendants sever in their answers, and each attempts to set up the defence of usury, if one of them applies for an issue which is denied, on the ground that the defence of usury is not properly set up to enable him to avail himself of it in the suit, the other defendant who has set up the defence properly, but who has not given notice of an application for an issue, cannot appeal from the decision denying the application as to both. But in such a case, the defendant who has properly set up the defence may be allowed to make a new application for an issue, in his own name.

      August 4.
    This was an appeal from a decision of the vice chancellor of the first circuit, denying an application for an issue. The bill was filed to foreclose a mortgage given by Henry Dudley, deceased, and Helen C. his wife, upon 49 lots of land in the city of New-York, the property of the latter, to J. L. & S. J. Joseph and M. Henriques $ to secure the payment of a bond executed by H. Dudley and N. W. Stuyvesant, for $130,000 and interest. The defendant P. G. Stoney was made a party as the holder of a mortgage upon 25 of the lots; which last mentioned mortgage, although given before, was recorded subsequent to the mortgage of the Josephs and Henriques, which had been assigned to the complainants. The answer of the defendant Helen C. Dudley admitted the giving of the mortgage and the assignment thereof, and of the bond of H. Dudley and N. W. Stuyvesant, to the complainants. But she set up, in bar to the suit, that her husband and Stuyvesant being in embarrassed circumstances applied to the Josephs and Henriques, the mortgagees, for a loan money, who agreed to loan $130,000, payable in two years with interest at the rate of seven per cent per annum, to be secured by the said bond and mortgage; that the lenders made it an express condition of the loan, that the borrowers should purchase of them three-eighths of 213 acres of land upon Staten Island for the sum or price of $109,500, although such land was not then worth one half of that sum, and at the time of putting in the answer was not worth more than seven or eight thousand dollars ; that all the parties to the agreement for the loan knerv that the sum agreed to be paid for the Staten Island lands was exorbitant, unreasonable and unjust, and was far above their actual value ; that such lands were purchased at that price only upon the condition that the loan should be made as aforesaid, and with the intention of covering the usurious character of the loan j and that such usurious agreement was carried into effect accordingly, by the execution of the bond and mortgage, and the giving of the notes of the borrowers to the lenders for the price so agreed to be paid by them for the Staten Island lands.

      The answer of the defendant Stoney put in issue the right of the complainants to sue as a corporation; the execution of the bond and mortgage; and the assignment thereof to the complainants ; and set up his own prior mortgage upon the twenty-five lots, as being entitled to a preference in payment, on the ground that the subsequent mortgagees had notice thereof at the time they took their mortgage. This defendant also set up the defence of usury in the complainants’ mortgage, in general terms, without stating the particulars of the usurious agreement; as follows : "This defendant further answering, says, that he does not know and does not admit that H. D. & N. W. S. became and were justly indebted to J. L. J. & S. J. J. & M. H. in the sum of $130,000 ; but has heard and believes the truth to be, that if any such indebtedness appears by papers executed by the parties, that the same are covinous and fraudulent, and intended to cover and conceal a corrupt, illegal and usurious transaction, concocted and devised between the parties to raise money by a fraudulent and usurious bargain ; and that the said money, if any was in fact advanced and loaned, was not bona fide loaned and advanced at the lawful interest of the state of New-York, but was only so apparently ; when in truth and in fact, the real, secret and moving cause for the execution of the said pretended bond, or obligation, was a corrupt and usurious agreement, by which the said Josephs and Henriques bargained and agreed to get, receive, secure, or in some way obtain for themselves, a larger and greater interest than seven per cent per annum, either by some pretended sale of property at much more than its actual value, or by some other contrivance, trick or device, by which the pretended lenders expected, designed and intended to secure to themselves some pecuniary advantage over and above the lawful interest upon money loaned ; and that the several transactions were, in fraud of the law, designedly kept apparently distinct and separate, for the express purpose of avoiding the statutes of this state against usury.” A replication having been filed to both answers, the defendant Stoney, alone, applied to the vice chancellor for an issue; which application having been denied, Stoney and Mrs. Dudley both appealed from that decision.

      S. A. Foot, for the appellants.

      E. H. Blatchford & J. P. Hall, for the respondents.
   The Chancellor.

It is contended, on the part of the respondents, that the third section of the act of May 2d, 1839, to regulate the trial by jury and the taking of testimony in chancery, leaves the power of the court to grant issues the same as it was previous to the act of April, 1838, on this subject. And that the words, “ according to the practice of the court of chancery previous to the passage of the act thereby repealed,” at the end of the first clause of that section, apply to the whole of that clause ; and not merely to the taking of testimony before an examiner or commissioner. Such a construction, however, would render the second section of the act of 1839 a nullity. For by the practice of the court, previous to the act of 1838, the court was not authorized to grant an issue, except in a few specified cases, until after the testimony was taken in the cause. At least, it was not the practice of the court to grant an issue, in ordinary cases, unless there was conflicting evidence, so as to create a doubt in the mind of the chancellor upon some matter of fact. The act of 1838 made it the imperative duty of the court to direct an issue, upon the application of either party, in every case in which an issue of fact suitable for the trial of a jury could be framed. And, in all other cases, the testimony of witnesses who resided within a hundred miles of the place where the court was held, was directed to be taken in open court, at the hearing. The object of the amendatory act of 1839 was to preserve the principle of the act of the previous year, except so far as it rendered the awarding of an issue, or the taking of the testimony viva voce at the hearing, compulsory upon the court. But leaving it discretionary in the court, where an issue which was suitable to be tried by a jury could be framed, either to award such issue before the testimony in the cause was taken, or to direct the testimony to be taken in open court at the hearing of the cause, (contrary to what was the usual practice of the court previous to the act of 1838,) or to direct it to be taken before an examiner, or commissioner, according to the practice before that time. The court, therefore, is authorized to grant an issue, previous to the hearing or taking of testimony, in cases proper to be tried by a jury ; if, in the opinion of the chancellor, the proceedings in the suit will be expedited, or the costs diminished, or a jury trial will be most conducive to the ends of justice.

In the present case, the answer of Mrs. Dudley presents a single question of fact, upon the determination of which, one way or the other, the complainants’ right, to a satisfaction of their debt out of the mortgaged premises, alone depends. For if the allegations in her answer are true, this was a clear and palpable case of usury. Even if an issue is refused in this stage of the suit, it may still be necessary or proper for the court to award an issue at the hearing, in case there should be such a conflict of testimony, on this point, as to render it doubtful whether the sale of the Staten Island property was or was not a mere device to obtain an advantage beyond seven per cent per annum for the making of the loan. (Marshall v. Thompson, 2 Munf. R. 412. Bullock v. Gordon, 4 Idem, 450. Douglass v. McChesney, 2 Rand. Rep. 109.) The act of May, 1839, does not deprive the court of the common law right to award an issue at the hearing, if it has not previously been directed, where the fact is rendered doubtful by conflicting testimony. If therefore the application to the vice chancellor, for an issue, had been made by Mrs. Dudley, I should think this was a very proper case to have awarded such issue, as to the single point of usury set up as a defence in her answer. And as she has no interest in the other matters, put in issue between the complainants and Stoney, if the defence of usury was not properly set up in the answer of the-latter so as to entitle him to avail himself of that defence, the issue might have been awarded between Mrs. Dudley and the complainants only; leaving the matters in issue between the other parties to be proved before the examiner, in the usual wmy. Or the proof as to those matters might have been directed to be taken at the hearing, after such issue should have been tried.

Where two or more defendants set up the same matter of fact as a defence, by their answers, or put in issue the same allegations in the complainant’s bill, if a replication is filed to the answers of all such defendants, the issue should be awarded as to all or neither; for the purpose of preventing unnecessary expense. It is for this reason that the 67th rule of the court requires that all of the defendants who are entitled to take testimony in the cause, and who do not join in the application for an issue, should have notice of such application. But where the defendants have not a common interest, or the defences set up by them are separate and distinct in their characters, it may frequently be proper to grant an issue as to the defence set up by one defendant, although an issue might not be proper as to the others. If the defendant Stoney, therefore, was not entitled to an issue, for the reason that the defence of usury was not set up in his answer in such a manner as to authorize him to avail himself of that defence by proof in the cause, Mrs. Dudley cannot appeal from the decision of the vice chancellor denying the issue as to her, upon Stoney’s application. In other words, if the appeal is not well taken as to Stoney, it must of course be dismissed as to Mrs. Dudley ; but without prejudice to her right to make an application to the vice chancellor for an issue, to try the allegation of usury set up in her answer, as to her own rights.

Upon an examination of the answer of the defendant Stoney, I think the defence of usury is not set up with sufficient certainty to entitle him to an issue upon that point, or to authorize him to give evidence of usury at the hearing. The principles of pleading in this court are substantially the same as at law, so far as relates to matters of substance. Anti a defendant who attempts to set up a defence of usury in this court must, in his plea or answer, as in a plea of usury in a suit at law, set up the corrupt agreement distinctly, stating in substance the terms of the usurious agreement; and he must prove it as alleged. (Vroom v. Ditmas, 4 Paige’s Rep. 526.) Here the answer of Stoney, instead of setting forth the substance of the usurious agreement, as is correctly done in the answer of Mrs. Dudley, merely contains a general charge that the cause of the execution of the bond and mortgage was a corrupt and usurious agreement, by which the lenders bargained and agreed to receive, secure, or in some way obtain a greater interest than seven per cent, either by a pretended sale of property at more than its value, or in some other way. Such a plea of usury would certainly be considered bad, both in form and substance, if pleaded as a defence to a suit upon this bond in a court of law ; and it is equally so when thus defectively set up in an answer in this court. And upon the other matters in issue upon this defendant’s answer, I think the vice chancellor was right in not sending the case to be tried by a jury.

The appeal, so far as relates to Mrs. Dudley, must therefore be dismissed ; with liberty to her to apply to the vice chancellor, in her own name, for an issue to try the question of usury set up in her answer. And the order appealed from, as to the defendant Stoney, is affirmed with costs.

Order accordingly.


text:
    Delavan vs. Payn.
    The second section of the act of May, 1840, in relation to the expenses of foreclosing mortgages in the court of chancery, docs not deprive masters in chancery of the compensation previously allowed by way of commissions, upon monies received on a sale of the mortgaged premises ; nor does it deprive either solicitors or masters of the allowances for disbursements to which they were entitled under the general fee bill contained in the revised statutes.
    August 4.
    This case came before the court for a construction of the "act to reduce the expense of foreclosing mortgages in the court of chancery,” in reference to the compensation of masters, upon sales under decrees of foreclosure. The premises sold for $9000, leaving a balance still due from the mortgagor. The master, in addition to his disbursements, and the $3,50 allowed by the act of the last session for advertising, attending the sale, making his report and drawing the deed to the purchaser, charged commissions upon the monies received and paid over upon the sale ; as allowed by the revised statutes and the 124th rule of the court. The complainant’s solicitor, in behalf of his client, and of the mortgagor who was personally liable for the deficiency, insisted that under the act of the last session the master was prohibited from charging commissions ; and that the amount retained by him on that account should have been paid over to the complainant, to be applied towards the balance due on the decree,
    D. Burwell, for the parties in the suit.

      J. Rhoades, for I. Harris, the master.
   The Chancellor.

The second section of the act of the 14th of May last, (Laws of 1840, p. 288) declares that in foreclosure suits, where there is no defence, the several officers therein named, instead of tilt fees for their services theretofore allowed, shall receive the compensation mentioned in that act; and that no other fees shall be taxed or decreed against the defendant, or demanded or received from him. Here, as the defendant is liable for the deficiency, the retaining of the commission by the master, which must of course increase the balance for which such defendant is personally holden, is in substance a demanding and receiving the money from him. The question therefore arises, whether the term fees, as used in that act, includes the compensation allowed by the former statute, by way of commissions upon monies received and paid over by masters, and other officers of the court.

By referring to the general fee bill in the revised statutes, it will be seen that the master’s fees upon sales in this class of mortgage cases were very much reduced by the act of May, 1840, so as to give him a very trifling compensation for his services in advertising the property, attending the sale and drawing the deed and report; exclusive of his risk and responsibility in receiving and paying out moneys. I cannot therefore believe that the legislature intended, in that act, to deprive the master of the commissions which were allowed to him under the revised statutes. The provision in the revised statutes, authorizing the master to charge for disbursements and for commissions upon sales, is contained in the came clause of the section of the statute relative to masters’ fees. And as neither the commissions nor the disbursements are, in common parlance, or even in technical language, called fees, if the master is not allowed to retain his commissions upon sales under the recent act, it is difficult to say upon what principle he can be permitted to retain for his disbursement for the printer’s bill. I conclude then that the term fees, in the act of May last, was not intended to deprive the master of his commissions ; nor to deprive solicitors and masters of the allowances for disbursements, to which they were entitled under the general fee bill contained in the revised statutes.

The master was therefore entitled to his commissions upon the sale ; and he must be permitted to retain the amount thereof as mentioned in his report, as well as the disbursement for the printer’s bill which he has paid.


author: Gridley, V. C. The Chancellor.

text:
    Holgate vs. Palmer and others.
    Where P. sold a lot of land to the complainant and took back a bond and mortgage for part of the purchase money, which he afterwards assigned to ■ B. upon a valid consideration, upon a bill filed by the purchaser against P. and B. to set aside the sale, and the bond and mortgage, upon the ground of an alleged fraud of P. in the sale; Held, that P. who had Suffered the bill to be taken as confessed against him, and who had been released by B. his co-defendant, was a competent witness for such co-defendant, to disprove the alleged fraud.
    A defendant who suffers the bill to be taken as confessed, and thereby enables the complainant to obtain a decree against him individually, notwithstanding ills testimony in favor of a co-defendant, is a competent witness for such co-defendant; although he would have been directly interested in the matters to which he is examined, if he had put in an answer denying the allegations in the complainant’s bill.
    But in a matter of contract, where it is impossible to obtain a decree against a defendant, who suffers the bill to be taken as confessed, if the complainant fails in his suit against the other defendants who were joint contractors with him, the defendant, against whom the bill is taken as confessed, cannot be examined as a witness in favor of his co-defendants, to sustain their defence.
    August 4.
    This was an appeal from a decision of the vice chancellor of the fifth circuit, suppressing the deposition of the defendant, Palmer, and refusing to suffer it to he read as evidence in behalf of his co-defendant, D. Burt, under the following circumstances : In October, 1834, the defendant, Andrews, purchased a narrow strip of land in Buffalo, between six and seven hundred feet long, for the price of $650, which is described in the deed and contract and mortgage hereafter mentioned, as bounded on the one side thereof by a street sixty-six feet wide. Andrews after-wards authorized the defendant Palmer to sell the premises, and to pay the original purchase money of $650 out of the proceeds of such sale ; and agreed that the residue of the proceeds should be equally divided between himself and Palmer. On the 12th of February, 1836, Palmer entered into a contract, with the complainant, to sell the premises to him for the price or consideration of $6000 ; of which $ 1000 was paid at the time of the execution of the contract, and $1000 was to be paid on the first of July thereafter, and the residue on the 12th of February, 1841, with interest thereon annually. Alvan Stewart joined with the complainant in the contract, as security, and the deed was to be given to Holgate and Stewart on the first of July, 1836, when the second payment was to be made; and they were then to give a bond and mortgage upon the premises, for the security of the payment of the $4000 and annual interest thereon. In June, 1836, Andrews sold and assigned all his interest in the contract to Palmer, and he authorized the complainant and Stewart to carry the contract into effect with Palmer, and to execute their bond and mortgage directly to him. Andrews and wife subsequently conveyed the premises to the complainant and Stewart by a full covenant deed, dated as at the time of entering into the contract, and they at the same time executed to Palmer the $4000 bond and mortgage, as of the same date ; and the complainant also paid him the second payment of $1000 and the interest due thereon. Palmer paid over this amount to the defendant Burt, and also assigned to him the bond and mortgage, in payment and discharge of a note of $4000 which Burt held, purporting to be signed by Palmer •, and which was endorsed by S. H. Macy and B. Rathbun. The bond and mortgage were sold to Burt for $3500 ; and he paid Palmer the balance or difference between that' sum, together with the $1000- payment, and the note; which note was given up to Palmer. The bill in th¡¿ cause was filed to set aside the bond and mortgage and to recover back the monies paid ; upon an allegation in the bill that' at the time of making the contract Palmer, either fraudulently or by mistake, represented that the lot was bounded by a street 66 feet wide, when in fact no street'- of that width existed ; and which fact the complainant did not discover until after the execution and assignment of the bond and mortgage, and after the payment of the first year’s interest thereon to Burt.
    The defendant Palmer suffered the bill to be taken as confessed against him, and the defendants Burt and Andrews put in separate answers to the same. The" answer' of Burt denied all knowledge of the situation of the land or of the title thereto, or as to the alleged misrepresentations of Palmer in relation to the street. And he claimed protection as a bona fide purchaser of the bond and mortgage, with the knowledge and consent of the complainant ; the same having been paid for by Burt as above stated. Replications having been filed to these answers, and the parties being about to take testimony therein, and the defendants Burt and Andrews both wishing to avoid themselves of the testimony of their co-defendant Palmer as a witness, to prevent the delay of an application to the court at that time for leave to examine him, a stipulation was entered into by their solicitors and the solicitor for the complainant, whereby it was agreed that his testimony might be taken de bene esse; but that it should not be used by either party on the bearing of the cause, unless the court, upon a motion made by such party, on due notice, should decide that the testimony of Palmer was competent for Burt or Andrews, or one of them, or for the complainant. In pursuance of this stipulation Palmer’s testimony was taken, and the solicitor for Andrews afterwards stipulated that it might be read on the part of Burt. The solicitor for Burt then gave notice to the complainant of an application to the vice chancellor, before whom the cause was pending, for an order that the testimony might be received as competent and read on the hearing pursuant to the stipulation ; Burt having released the witness from all claim against him previous to his examination. The vice chancellor decided that Palmer was an incompetent witness for the defendant Burt, notwithstanding the release. He, therefore, denied the application and ordered the deposition to be suppressed with costs. From this decision the defendant Burt appealed.
   The following opinion was delivered by the vice chancellor upon the application to suppress Palmer’s deposition.

Gridley, V. C.

Palmer has suffered a decree pro confesso ; and the first question is whether his deposition, taken under a stipulation on the 26th September, 1839, is competent for his co-defendants or one of them. The other defendants it seems had omitted to enter an order under the 73d rule, for the purpose of examining Palmer as a witness, and upon the day in question, the defendant Burt executed to Palmer, a release and thereupon claimed to examine him as a witness. A stipulation was then entered into by the solicitors of the respective parties that he might be examined de bene esse, but that his deposition should not be read on the hearing, unless the court should decide it to be competent, upon a special motion to be made and argued at the same time at which the cause should be heard. The motion and the cause have been argued together ; but it is necessary to dispose of the motion as a preliminary matter, for the reason that this deposition, if held to be competent testimony, would go far to defeat the complainant’s right to relief. Palmer denies that there was any fraud or mistake in the case ; and states further that when Burt was about to purchase the bond and mortgage, the complainant was present, and on being questioned by Burt, gave him assurances that the securities would be paid. It seems to me very clear that so much of this deposition as relates to the assumed fraud or mistake, and which, if true, would go to discharge himself and Andrews as well as Burt, is inadmissible.

But it is argued by the counsel for Burt, that Burt having released Palmer, the latter has no interest in the matter relating to the assurance given to Burt, inasmuch as that constitutes a branch of the defence peculiar to Burt alone.

I have had some difficulty in coming to a conclusion upon this question ; the authorities upon it are to some extent in conflict with each other. The deposition of a defendant may be read in favor of his co-defendant, notwithstanding he is charged with combination, and is aparticeps criminis, provided no relief is prayed against him ; and he is only contingently liable for costs. (2 Cowen, 139. 6 John. Ch. Rep. 212.) So too when distinct claims against different persons or combined in the same bill, so that one defendant is not interested in the matter upon which relief is sought against another, a defendant may use the deposition of his co-defendant. And upon this it is said that a defendant may be a witness for a co-defendant when he is not interested in the matters upon which he is to be examined. (Murray v. Shadwell, 2 Ves. Beam. 402.)

This, however, is a case where Palmer was the actor in the matters upon which relief is prayed for, where he is primarily liable to the complainant, and his own liability is fixed by a decree pro confesso ; and where Burt, who offers his deposition in evidence, is only liable through Palmer, and in consequence of his acts. I have found no case going the length of holding the deposition of a party thus circumstanced competent. The decision of Lord Hardwicke in Dixon v. Parker, (2 Vesey, sen. 219,) is directly against it. He says, “ Considering the nature of the case, and that the only evidence of fraud and imposition, such as it is, is against the defendant. Garland, it would be pretty wonderful if he could be read as a witness.” He then goes into an elaborate examination of this question, and comes to the conclusion that a party who is interested in the cause, and is liable to have a decree against him, cannot be a witness, and when the defendant has examined witnesses ; thus showing that if he judges himself to have an interest in the cause, his deposition is incompetent. In the case of Bridgman v. Green, (Idem 629,) the Lord Chancellor holds the same doctrine, that where a defendant is particeps fraudis, and interested in the suit, he cannot be sworn as a witness. So too I understand Ch. Kent in Whipple v. Lansing, (3 John. Ch. Rep. 612.) I think the true construction of the rule which allows a defendant to be examined for a co-defendant upon matters in which he is not interested, does not embrace a case like this. The rule is applicable to Cases where the original ground of relief against a defendant is different, and based upon a different state of facts from that which exists against the defendant who is sought to be used as a witness. A defendant may in all cases suffer a decree pro confesso, and thus fix his own liability—and then assert that he is not interested in matters which go to charge the other defendants; he being liable at all events. But I cannot think the rule in question was ever intended to reach such cases. Nor do I think that the danger of receiving Palmer’s evidence as to the original fraud, would be greater than that which relates to the alleged assurance of Holgate. (4 John. Rep. 293.)

S. Beardsley, for the appellant.

A. Stewart, for the respondent.

I therefore suppress the deposition of Palmer, with costs of the motion.

The Chancellor.

The question whether the defendant Palmer is a competent witness for Andrews, who was jointly interested with him in the original contract at the time it was made, cannot arise on this appeal. No application has been made on his part to use the testimony; and there is no privity between him and Burt, So as to render him in any event personally liable to the latter. This appeal, therefore, is to be disposed of upon the questions arising between the witness and his co-defendant Burt and in the same manner as if Andrews was not a party, and never had been entitled to any interest in the contract.

The authorities referred to by the respondent’s counsel show, that where two defendants are charged jointly as parties to the same fraud, Or contract, and the cause is to be heard on pleadings and proofs as to both, one cannot be examined as a witness in behalf of the other, as to the point of the defence in which they have such a common interest. And probably, in a mere matter of contract, where it was impossible that one could be charged if the other was not, the fact that one of them had suffered the bill to be taken as confessed would not render him a competent witness for the other. (See Clason v. Morris, 10 John. Rep. 534.)

It is very evident from the report of the case of Dixon v. Parker, (2 Ves. sen. 220,) that cause was heard on pleadings and proofs as to Garland, the witness, as well as to the defendant Parker who sought to avail himself of the testimony. For Lord Hardwicke says in that case, “ Garland has examined several witnesses, and so far has judged himself concerned in interest; then it cannot be said he is not so.” In the case of Bridgeman v. Green, (Idem, 627,) where the defendants were jointly charged as having been concerned in the same fraud, it is not distinctly stated that Lock the attorney had put in an answer denying the fraud. But it may fairly be inferred that such was the fact; not only from the language of Lord Hardwicke, as to the defendant’s interest, but also from the practice of the court of chancery in England at that time, in relation to the taking of bills pro confesso; as a bill could not then be taken as confessed upon a mere neglect of the defendant to appear. And in the case of Whipple and wife v. Lansing & Van Rensselaer, (3 John. Ch, Rep. 612,) it distinctly appears, from the report, that the witness, who was charged with fraudulently colluding with his co-defendant in the matter as to which it was sought to examine him, had joined with such co-defendant in his answer. In the case of Lupton v. Lupton, and others, (2 John. Ch. R, 625,) the late Chancellor Kent decided, that a defendant who had suffered the bill to be taken as confessed, thereby admitting his own liability to ihg complainant, was a competent witness for his co-defendants; although he would have been directly interested in the matters to which he was examined, if he had put in an answer setting up those matters as a defence to the claim against himself. And in the more recent case of Bradley v. Root, (5 Paige’s Rep. 632,) this court held that the fact that a defendant had suffered the bill to be taken as confessed, and thereby rendered himself liable to the complainant at all events, took the case out of the general rule that a complainant, who examines one defendant as a witness against a co-defendant, cannot have a decree against the party thus examined, as to the matters of the suit to which his testimony relates.

In this case, the defendant Palmer, by suffering the bill to be taken as confessed, admits the fraudulent misrepresentation, and his own liability to make good the loss sustained thereby. And as he has transferred the bond and mortgage to Burt for a good consideration, as between him and Burt he is in equity primarily liable to make good the loss. For if there is a decree setting aside the bond and mortgage, as obtained from the complainant by fraud, it would be a matter of course to give to Burt a decree over against Palmer, for the amount of those securities, were it not for the release. As the case now stands, if the bond and mortgage are set aside, Palmer will only be liable to refund to the complainant the two first payments which were made upon the contract; and will not be answerable to Burt for any thing. But if Burt succeeds in his defence, and retains his bond and mortgage as a valid security for the $4000 and interest, the complainant will be entitled to a personal decree against Palmer, not only for the two first payments, but for the amount of the bond and mortgage also. Instead, therefore, of being interested in sustaining the defence of the defendant Burt, if Palmer has any interest it is directly the other way. And it is not for the complainant to object that the witness is interested against the party calling him.

It is said, however, that the witness swears that he believes the note which he took up at the time of the assignment of the mortgage was not genuine ; and therefore, if Burt succeeds in his defence, the witness will have a claim against him for the amount. If that is so, his interest between the parties is balanced, as he would, in that event, have a claim against Burt for the same amount that the complainant would recover against himself. The short answer to this objection, however, is, that it appears from his testimony that the note which he took up was endorsed by two other persons, whose signatures he admits to be genuine. And as he says he took up the note believing his own name to be a forgery, and thereby deprived the holder of the claim which he then had upon the endorsers of such note, no court would permit him afterwards to recover the money back which he had voluntarily paid to a bona fide holder of the note, under such circumstances ; unless Burt had agreed to refund it.

The defendant Palmer, therefore, was a competent witness, for his co-defendant Burt, as to the several matters to which he has been examined. The decision of the vice chancellor must consequently be reversed ; and an order must be entered, pursuant to the stipulation, declaring the deposition to be competent testimony in favor of the defendant Burt, and allowing it to be read on the hearing accordingly. Neither party is to have costs upon the appeal; and the proceedings are to be remitted to the vice chancellor.


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    Williams vs. Hogeboom.
    It is no objection to the fil ng of a creditor’s bill, that the sheriff returned the execution on its return day, if the bill is not filed until after such return day.
    The defendant in a creditor’s bill cannot take advantage of a mere irregularity in the return day of the execution at law ; the execution not being void but merely voidable, the remedy of the defendant is to apply to the court of law to have such execution set aside for irregularity, and then to set that fact up as a defence to the creditor’s bill.
    Where the execution was in fact issued to the sheriff of the county in which the defendant resided, if the complainant in a creditor’s bill has, through inadvertence, neglected to state that fact in the bill, he will be permitted to amend.
    August 4.
    This was an application, upon a creditor’s bill, for the appointment of a receiver. The judgment against the defendant was recovered in the supreme court, in a suit commenced previous to the first of June, 1840, when the "act concerning costs and fees in courts of law and for other purposes,” went into effect. On the 6th of July, 1840, an execution was issued upon the judgment, directed to the sheriff of the county of Columbia, and such execution was made returnable on the 11th of the same month; instead of sixty days from the receipt of the execution by the sheriff, as directed by the 24th section of the said act. On the return day of the execution, the sheriff returned it unsatisfied, and three days thereafter the bill in this cause was filed.

      J. Rhoades, for the complainant.

      A. P. Holdredge, for the defendant.
   The Chancellor.

The objection that the complainant has not exhausted his remedy at law, because the sheriff did not wait till after the return day of the execution before he made his return thereon, is not well taken. The sheriff is authorized to make and file his return to process either on or after the return day thereof; although this court will not permit a creditor’s bill, founded upon such return, to be filed here until the return day of the execution is past. (Cassidy v. Meacham, 3 Paige’s Rep. 311.) Here the execution was returnable, and had been returned unsatisfied, several days previous to the time of filing the complainant’s bill ; so that the defendant, if he wished to save costs in this court by paying the debt, had sufficient time for that purpose, if the execution was not irregulur.

It is insisted, however, that the execution should have been made returnable sixty days from the time it was received by the sheriff; and that being made returnable on a day certain, which was only five days after the tesle, the execution was void. In the recent case of Freeland & Hoffman v. Nott, (ante, p. 431,) I came to the conclusion that the recent statute did not intend to prescribe different modes of entering and docketing judgments and decrees, and of issuing executions, &c. in suits commenced before, and after, the 1st of June, 1840 ; so as to have one class of judgments, recovered after that time, docketed as formerly, and another class docketed in the county clerks’ offices only. If I was right in the construction of the statute, it follows that the execution in this case should have been made returnable according to the directions contained in the 24th section. (Laws of 1840, p. 334.) And if the irregularity was such as to render the execution void, and not merely voidable, then the bill in this case was prematurely filed and cannot be sustained. But as every court of record, of general jurisdiction, must judge of the regularity of its own proceedings, if the mistake in the return day of this execution did not render the process actually void, the remedy of the defendant, if he has any, is by an application to the supreme court to set aside the execution for the irregularity.

In the case of Drake v. Miller, which came before the supreme court in October term, 1799, where a certiorari was made returnable “ before us,” &c. instead of being returnable “ before our justices of our supreme court,” &c. as directed by the act of January, 1797, it was held that process which did not conform to the statute was void. (Colem. Cas. 85.) But in Williams v. Rogers, (5 John. Rep. 167,) which came before the same court ten years afterwards, upon a similar mistake in the return of process, the case of Drake v. Mitchell was in effect overruled. And the court declared the execution voidable merely, but not void. A similar decision was made in the cases of Scott v. Shaw, (13 John. Rep. 378,) and of Hinman v. Breese, (Idem, 529,) where the ca. sa. had been issued, in a bailable action, without the previous return of a fi. fa. unsatisfied, as directed by the statute on that subject. And it now appears to be fully settled in this state, as well as in England, that a mistake in the return day of an execution issuing out of a court of record of general jurisdiction is not void | but is only voidable upon an application to the court to set the same aside for irregularity. (See Atkinson v. Newton, 2 Bos. & Pul. 336. Reddell v. Pakeman, 1 Gale’s Exc. Rep. 104. Cramer v. Van Alstyne, 9 John. Rep. 386. Tidd’s New Prac. 104.) I am satisfied, therefore, that a neglect to make an execution returnable at the end of the sixty days, from the receipt thereof by the sheriff, renders it irregular merely. And that the execution is not void, so as to make the attorney issuing it and the party in whose favor it is issued trespassers; without the necessity of an application to the court, to set aside the execution for the irregularity ; and where the irregularity may be cured by such court, by amendment.

In cases of this kind, this court will not undertake to decide upon the regularity of the proceedings of a court of co-ordinate jurisdiction ; but in a proper case will stay the proceedings on the creditor’s bill here for a sufficient length of time, to enable the defendant to apply to that court for relief. If the supposed regularity of the execution only were in question in this case, therefore, it would be'the duty of the court to disregard that objection entirely ; or to suspend the decision upon this application until after the next motion term of the supreme court, to enable the defendant to make his application there to set aside the execution.

The counsel for the defendant, however, has called the attention of the court to the fact, that there is no allegation in the bill that the execution was directed to the sheriff of the county where the defendant resided when it was issued. As this is a matter of form merely, if the defendant was in fact a resident of Columbia county .at that time, the complainant will of course be permitted to amend his bill, by inserting the proper averment as to the defendant’s residence, and to renew the application upon such amended bill, in case the defendant does not succeed in his application to the supreme court to set aside the execution, and the return thereof by the sheriff. The application for a receiver is therefore denied, but without costs; and with liberty to the complainant to renew the application at any time after the motion term of the supreme court in September next.


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    Baldwin vs. Salter.
    In a suit by the vendor to compel the specific performance of a contract for the purchase of land, a performance may be decreed if the complainant is able to make a perfect title to the premises at the hearing.
    But where the complainant asks for an injunction to restrain the defendant from parting with the property which was to be transferred in payment of the complainant’s land, or for a receiver of such property, he must show that he is in a situation to fulfil the contract; and it is not sufficient to show that he may possibly be able to perform the contract at the hearing of the cause, but he must show a present ability to perform it; where the defendant has a right to require an immediate performance of tire agreement.
    Whore a party voluntarily abandons an agreement in writing, for the sale or exchange of lands, with the assent of the other party, because he is not in a situation to perform the same, it seems he cannot aftei wards demand a specific performance; although such abandonment of the agreement was ' by parol merely.
    August 4.
    This was an appeal from a decision of the vice chancellor of the first circuit, denying a motion for a dissolution of an injunction. The bill was filed for the specific performance of a contract for the sale, to the complainant, of certain lands in the city of New-York, for which the defendant was to receive from him, in exchange, certain lands in the state of Illinois. At the time the agreement was to be carried into effect, the complainant was unable to five a good title to the lands in Illinois, by reason of the existence of an incumbrance thereon which he did not disclose to the defendant at the time of making the contract. And there were also, as the defendant alleged, some other defects in the title. The vice chancellor held, that as it did not distinctly appear from the bill and answer that the complainant might not, at the hearing, be able to make a good title to the Illinois lands, it was proper to retain the' injunction, restraining the defendant from receiving the rents and profits of the lands, in New-York, which he wasto' convey to the complainant; and to appoint a receiver of-such rents and profits. He, therefore, denied the defendant’s application to dissolve the injunction, upon the bill and answer.

      W. Mulock, for the appellant»

      D. A. Baldwin, respondent, in person.
   The Chancellor.

It is a general rule, that a specific performance of an agreement may be decreed if the complainant is in a situation to perform on his part, and make a good title, when the cause comes before a court for a decree. But even if this case comes within that rule, so that the court would compel the defendant to take the Illinois lands if the complainant is able to make a perfect title at the time he asks for a decree, (which is certainly a matter of great doubt upon the facts disclosed in the defendant’s answer,) I think the vice chancellor erred in applying that rule to a motion to dissolve the injunction. Where a party applies for an injunction, or a ne exeat, or for a receiver to dispossess the defendant of the possession or control of his property, it is not sufficient for the complainant to show that he may hereafter be in a situation to ask for a specific performance of the contract; but he must show a present right.

In the case referred to by Mr. Dickens, in a note, (2 Dicken’s, Rep. 497,) Lord Thurlow is said to have denied an application for a ne exeat, against a purchaser, Who Was going abroad, because it did not appear by the bill that the complainant was then in a situation to make a good title to the lands purchased by the defendant. And in the subsequent case of Morris v. McNeil, (2 Russ. Rep. 604,) Lord Eldon discharged a ne exeat upon that ground alone. He there says, "unless the court can make it out to be quite clear that there must be a specific performance, it cannot grant the writ.” That principle is equally applicable to this case; where the complainant asks for an injunction to restrain the defendant from receiving the rents and profits of his own property, when he is not himself in a sitúation to give a perfect title to the lands which he was to convey to the defendant, in exchange for the lots in New-York. The proper course for the complainant, if he expects to be in a situation hereafter to make a good title, and to have a decree for a specific performance, is to extinguish the mortgage of $2000 upon the Illinois lands, and tender a perfect title to those lands to the defendant; so as to entitle himself, in equity, to the rents and profits of the New-York lands, which were to he received in exchange therefor.

If the allegation of the defendant in his answer is true, however, that the complainant voluntarily abandoned the agreement, when he found that he could not complete it on his part, it is doubtful, at least, whether any court of equity will allow him to set it up again ; for the purpose of claiming a specific performance thereof after the whole object of the defendant in entering into the original agreement has been defeated.

The order appealed from must be reversed, with costs, and the injunction must be dissolved.