text:
    Crippen vs. Crippen & Thompson. The same vs. Thompson and others.
    Where the parties compromised a suit by an agreement that one of the defendants should pay the costs of the complainant; Held, that the taxing officer was not bound to decide the question, whether the costs should be taxed as between solicitor and client, or only as between party and party. But if the parties, or • either of them, wished it, he should have taxed the costs in both ways; to enable the proper tribunal, beffire which the agreement was afterwards sought to be enforced, to decide the question, whether the one amount, or the other, was payable, under such agreement.
    But where costs are payable under an order or decree of the court, the taxing officer must decide upon what principle the costs are to be taxed, according to the legal construction of such order or decree, as well as ascertain the amount of the taxable items, according to such construction.
    Where there has been an appeal from an order or decree of a vice chancellor, the costs upon the appeal and upon the proceedings in the suit in the court below, may be made out, and taxed, in separate bills.
    Charges for copies of wills, deeds, &c. to be annexed to the draft of a bill, are not taxable. Nor can parts of an original bill, which are incorporated in hasc verba in a supplemental bill, be allowed as a part of the draft of the supplemental bill.

      A charge for attending court to argue a demurrer, which was not reached on the calendar, is not taxable.
    A charge for engrossing the points, to be used upon the argument of a cause, is not taxable.
    Where the complainant makes a special application to the court for leave to amend, the complainant’s solicitor is entitled to charge for a copy of the bill, as amended, to be served upon the adverse party. But he is not entitled to charge for a second copy of the amended bill, to keep; the one which he used upon the application for leave to amend, is all that it is necessary, to keep.
    The costs of an amendment, of the bill, which has been rendered necessary by the complainant’s neglect to furnish his solicitor with a full statement of the facts of the case in the first instance, are not taxable as between party and party.
    Upon a mere supplemental bill, filed by the- complainant against the same defendants, which is not a supplemental suit, the complainant is not entitled to be allowed for new retaining fees for solicitor and counsel.
    But where a suit abates, and a new bill is necessary, not only to revive the suit against the representatives of the decedent, but also to bring new interests, and new matters of litigation before the court, in consequence of such abatement, new retaining fees are taxable.
    Where a cause is referred to a vice chancellor for hearing and decision, by the chancellor, upon the calling over of the calendar for that purpose, and not upon notice by the party, for an order to refer, the solicitor is not entitled to charge an attendance fee, for attending to obtain such order.
    Charges for drafts, and copies of points, upon special motions, are not taxable.
    A charge for the expenses of obtaining an order extending the time to reply, is not taxable against the adverse party.
    Where a solicitor has been allowed a gross sqm, for his costs upon a special motion, he cannot afterwards charge, in his general bill of costs, the fees of the register or clerk for reading and marking his papers upon such motion; such fees being included in the gross sum fixed, by the court, as the costs upon the motion.
    A charge for attending the vice chancellor out of term, upon a petition for a temporary injunction, is taxable,; but such a charge is not allowable where an injunction is allowed by a vice chancellor, out of court, in his character of injunction master merely.
    This was an application, on the part of J. W. Thompson, one of the defendants, for the re-taxation of the costs of the complainant’s solicitor. An original bill, in the first entitled cause, was filed against the defendants therein, for an injunction restraining proceedings at law, and to obtain a specific performance of an agreement, between the complainant and N. R. Crip^ pen, his father, one of the defendants. In the progress of that suit the complainant’s bill was found to be defective, and it. became necessary to make an application to amend the same, and to obtain a new injunction thereon. Many other services had been performed by the complainant’s solicitor, in the progress of the suit, which were properly taxable as between the solicitor and his client, but which would not have been taxable as against the defendants, upon a general decree for costs against them, in favor of the complainant. N. R. Crippen died subsequent to the filing of the amended bill, and it then became necessary to file the bill in the secondly entitled cause, as a bill of revivor and supplement. The parties afterwards agreed to compromise the suits, upon payment of the costs. And one question was, whether, by the agreement, the defendant Thompsoh was bound to pay the costs due from the complainant to his solicitor, and taxable as between solicitor and client, or the costs which would-have been taxable as between party and party, upon a decree for costs, in favor of the complainant. The vice chancellor, to whom the bills of costs were presented for taxation, taxed the costs as between solicitor and client. And as to all the items which were not properly taxable as between party and party, the counsel for Thompson objected, and asked a re-taxation. He also objected to various other items in the bill as not taxable, even as between solicitor and client.

      O. L. Barbour & O. F. Thompson, for the defendant.

      B. F. Agan & A. C. Paige, for the complainant.
   The Chancellor.

The question, whether the costs to be paid under the agreement were the taxable costs as between the complainant’s solicitor and his client, or the taxable costs as between party and party, was one which it was no part of the duty of the taxing officer to decide. For the costs were not taxed under any decree or order of the court, but merely for the purpose of enabling the parties to carry their agreement into effect. If the complainant’s solicitor, therefore, had asked to have these bills of costs taxed as between solicitor and client, the vice chancellor should have so taxed them — stating in his certificate of taxation that they were taxed as between solicitor and client, and not as between party and party. And if the defendant had asked to have the costs taxed as between party and party, he should also have taxed them in that way; stating, in his certificates of taxation, the amounts of the respective bills, in each mode of .taxing them. This would have enabled the proper tribunal, before Which the question might afterwards come for a decision, to determine whether the one amount or the other was payable) under the stipulation to compromise the suits. I shall not therefore attempt to determine the question, upon this appeal from the taxation, and upon conflicting affidavits as to what that stipulation was, whether the defendant is or is not bound to pay all the taxable costs for which the complainant is liable to his solicitor. The case would be different if the costs were payable under an order or decree of the court, and where it was necessary to give a construction to such order, or decree, for the purpose of ascertaining what amount of costs was to be paid; and to enable the court to enforce a compliance with such order or decree. I shall therefore proceed to ascertain what items in the bill of costs objected to, by the respective parties, and allowed by the taxing officer notwithstanding such objections, were properly taxable, either the one way or the other.

It was objected that the costs in the original suit, and those upon the bill of revivor and supplement, should all have been included in one bill of costs, so as to save the expense of double charges for separate bills of costs, notices of taxation, &c. It is unnecessary to consider that question here, as one of these bills embraces the costs upon an appeal, as to which this court has decided that a separate bill of costs may be made out and taxed. And the result is the same to the defendant, whether the whole costs are taxed in these two bills, in the form in which they were presented to the taxing officer, or the costs Upon the appeal only are embraced in one bill, and all the residue of the charges are included in the other.

In the first bill, the charges for copies of wilij deed and mortgage, to be annexed to draft of bill, are not taxable. For they are charged and allowed in the charges for the engrossment and copies of the bill and schedules; and copies of schedules to be annexed to the draft áre wholly useless. The priginal matter in the amended bill, and in the affidavits annexed, is but 48 folios, instead of 141, as charged; and the remaining 93 folios should not have been taxed as for a draft, being merely copied from the original bill; and the charge for schedules annexed to the draft should also have been disallowed. The charge for engrossing the points was improper and should have been disallowed; and 'the copies afe overcharged. The copy of the amended bill, to serve, after the amendment had been allowed, and the amended bill had been filed-, was necessary, and was properly taxable; but a second copy to keep should not have been taxed, as the copy 'charged before the bill was amended was all that was necessary. With these deductions, the charges, as taxed by the vice chancellor, from the charge for the draft of the proposed amended bill, down to the notice of the argument of the demurrer to the amended bill, at August term, 1842, are properly taxable as between solicitor and client. But none of those charges would have been properly allowable as between party and party; as they were all rendered necessary in consequence of the neglect of the complainant to furnish his solicitor and Counsel with all the proper information, to enable them to draw the original bill right, in the first instance.

The charge for attending, at the August terni, in 1842, to argue 'the demurrer to the amended bill, was not taxable; as no allowance is made by the fee bill, in this court, for attending to argue a 'cause When'it is not reached. And the charge for solicitor’s fee on the order to refer the cause, where it is referred by the court upon calling'oVer the calendar for that purpose, w&s not taxable. Nor is the solicitor entitled to charge for the proposed decree to be entered upon the argument of a demurrer. That is only necessary 'or proper where thefe is something special in the case, requiring 'a draft of the decree, which the solicitor supposes his client entitled to, for the purpose of enabling the court to deter-. mine What relief it may be proper to grant. But no such information is necessary on the argument of a demurrer; as the demurrer is disallowed of course, and the defendant is required to answer the bill, if the complainant succeeds upon the argument. The charge for solicito!- and counsel fee, at November term, 1842, was also improperly allowed, as the case was not argued; and the charge was too much, even if the demurrer had been argued at that time. The charges for copies of bill of costs, and'for the taxation, are also too high, as the sums charged are only allowable after a decree in the cause. But here had been no decree, and these services should therefore have been taxed at the lower rate, as fixed by the fee bill before decree. The charge for the engrossment of the amended bill was properly rejected by the taxing officer; as he had allowed for an engrossment of the proposed amended bill, and that was all that was necessary or proper to charge. The bill of costs in the first suit must therefore be taxed at $276,89, as between the solicitor of the complainant and his client; and at $143,10, as the amount at which it would be taxable between the complainant and the defendants, if there had been a decree for ’costs in his favor, against them; or, in other words, as the taxable costs as between party and party.

The first objection to the bill of costs in the second of the above entitled causes, is that retaining fees are not allowable upon a bill of revivor and supplement. Upon a mere supplemental bill, against the same parties, which is not also a supplemental suit, I think new retaining fees for the solicitor and counsel are not taxable. But where the suit has abated by the death of a party, and a new bill is necessary, not only to revive the suit against the heirs or representatives of the decedent, but also to bring new interests and new matters of litigation before the co.urt, as in this case, retaining fees ought to be allowed. For the reasons before stated, however, the copies of schedules to be annexed to the draft of the bill, should not have been allowed. The charge for attending the vice chancellor out of term, upon petition for a temporary injunction, was properly allowed, as the fee bill gives to the solicitor one dollar for such service. But that charge is not taxable where the injunction is allowed by the vice chancellor in his character of an injunction master merely, and not in the discharge of his duty as the judge of the court. In this case, I think the vice chancellor had no authority to allow the temporary injunction upon petition, except as having authority as a court to make the order. The charge for allowing the injunction must therefore be disallowed. The charges for the several copies of the bill of revivor and supplement, to be served upon the parties, with notices of the motion for leave to file such bill and for an injunction to be founded thereon, appear to have been necessary and proper, according to the practice of the court in such cases. But as the notices are subsequently charged and allowed, the draft of notice, and one folio in addition to each copy of the bill* should have been disallowed. The charge for draft and engrossing and copies of points, for the court, were properly disallowed, as not required, to be furnished upon special motions, by the rules and practice of the court. And for the same reason, the charge for a copy of the bill of revivor and supplement, for the court, upon the motion, and the four succeeding charges of the same character, should also have been disallowed.

Although a copy of the supplemental bill, proposed to be filed, had been served, on the defendant Thompson, with notice of the application for leave to file the same and for an injunction, the service of another copy of the bill, upon him, after it had been filed, was probably necessary; to prevent a dissolution of the injunction, under the 35th rule of the court, and to compel the defendant to answer. The charge for such copy was therefore properly allowed upon the taxation. And the charges for the copies of papers furnished to the court upon the appeal were also proper. But the copies of points for the court and counsel were charged at fourteen cents a copy, instead of seven, and the taxing officer should therefore have deducted one half of the entire charge for copies. The charge for granting order for time to reply was not taxable, as no such allowance is found in the fee bill in this court. The solicitor having been allowed a gross sum for his costs in resisting a motion to vacate the order reviving the suit, which sum had been paid, the clerk’s fees for marking his papers on that motion must have been included in that gross sum, and ought not to have been allowed a second time.

The charges for solicitor and counsel attending to argue demurrer at the term at which the cause was settled, should have been disallowed, as the cause was not argued ; and the solicitor did not in fact attend the court. Nor were the copies of papers furnished to the counsel for the argument taxable. The party-demurring was bound to furnish the necessary copies for the court, and copies of the pleadings, &c, for counsel were not taxable. Some other charges have also been allowed in this bill which, in relation to the other bill, I have already decided to have been improperly allowed, or charged too high ; and they must be corrected accordingly. The charge for filing papers on the motion to strike the answer from the files, and the three succeeding charges, are embraced in the gross allowance for costs on that motion, and were also for services which were done after the compromise of the suit, and must be disallowed. But as most of the services embraced in the allowance of $15, for the costs of that motion, must have accrued before the suit was settled, as much as ten dollars of that .gross sum must be allowed.

There does not appear to be any thing in this bill which is properly taxable as between solicitor and client, which is not also taxable as between party and party. After making all the proper deductions, therefore, this bill must be declared to be taxed, as between party and party, at $267,46. And neither party is to have costs as against the other, upon this application for a retaxation. ,


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Edwards & Edwards vs. Bodine and others.
    Upon a reference to a master, to ascertain the damages which the defendants had sustained, by reason of an injunction restraining them from selling mortgaged premises under a decree of foreclosure, in another suit, after the premises had been advertised for sale under such decree; Held, that the master’s fees for services which had to he performed a second time, after the dissolution of the injunction, and the expense .of re-advertising the sale of the mortgaged premises, were properly allowed, as a part of the damages sustained by the granting of the injunction.

      Held, also, that the taxable costs of the defendants, and the reasonable counsel fees, paid by them upon the application to dissolve the injunction, were a part of the. damages sustained by them, in consequence of the granting of such injunction.,
    But the defendants against whom such an injunction has been granted are not en. titled to an allowance for their personal services, in attending at the place where the premises are advertised for sale, and for the attendance of their solicitor at. such place to advise them respecting the sale, as a part of the damages sustained by the granting of the injunction.
    Where the sale of mortgaged premises, advertised for sale by a master under a decree-of foreclosure, is suspended by an injunction, or by an order of the court, the master is not entitled to any thing by way of commissions, except the commissions upon the sale whioh is afterwards made.
    The 31st rule of the court of chancery, requiring security to be given upon the granting of an injunction in certain cases, was intended to protect the defendant from any injury he might sustain by the allowance of an injunction; whether such injunction was erroneously allowed by the officer of the court, or was properly allowed by him, in consequence of an erroneous or partial statement, in the bill, of the real facts of the case. And the object of the reference to the master, to examine and report as to the damages, is simply to ascertain the amount thereof, according to the natural meaning of the condition of the bond.
    This was an appeal by the defendants, the executors of Bodine, from an order of the vice chancellor of the first circuit, allowing in part the exceptions of the complainant to a master’s report.' The injunction .master, upon the allowance of an injunction to restrain the defendants from proceeding to sell mortgaged premises, under a decree of foreclosure, took from the complainants a bond with sureties, conditioned to pay to the parties enjoined such damages as they might sustain by reason of the injunction, if the court should eventually decide that the complainants were not equitably entitled to such injunction. The injunction not being sustained, the appellants obtained an order referring it to a master to ascertain their damages by reason of the injunction, according to the provisions of the Blst rule of the court of chancery. Thé master, in addition to loss of interest upon the -amount for which the property would have sold, and the taxable costs of the master who was to have sold the property, and the expenses of advertising, &c. allowed for half commissions on the amount of the decree; $20 for services of the defendants in this suit, and of the solicitor in attending the sale, and employing counsel to get'the injunction dissolved, and $100 for counsel fees upon procuring such dissolution. The vice chancellor, upon exceptions to the report, disallowed the three last mentioned charges. From which decision of the vice chancellor the defendants appealed.

      F. S. Kinney, for the appellants.

      J Van Cott, for the respondents.
   The Chancellor.

The master properly allowed, as part of the damages sustained by the issuing of the injunction, the fees for services, in relation to the sale, which the master would have to perform the second time in consequence of the sale being stopped, and also the expense of re-advertising the sale of the mortgaged premises. But the master is not entitled to commissions except where the property, which he is directed by the decree to sell, is actually sold by him. The vice chancellor has, therefore, properly disallowed the charge of ten dollars for half commissions. So much of the taxable costs of the defendants as was necessary to obtain a dissolution of the injunction, may also be properly considered as damages which they have sustained by reason of the injunction; so as to enable them to recover those costs of the sureties, in the injunction bond, if they are unable to collect them of the complainants in the suit.

The language of the condition of the bond, and of the second clause of the 31st rule of this court, under which rule the bond in this case was taken, is undoubtedly broad enough to embrace the necessary counsel fees, which the defendants have been obliged to pay out in order to procure the dissolution of the injunction. For the necessity of paying such counsel fees is an actual damage which the defendants have sustained by reason of the injunction. Upon certain appeals to this court, and upon appeals from this court to the court for the correction of errors, the statute authorizes the appellate court, in its discretion, to award damages to the respondent upon affirming the decree, &c. for the delay and vexation caused by such appeal. (2 R. S. 618, § 35.) Under that statutory provision the court for the correction of errors has allowed to the respondent, in an appeal, a sum in damages to cover his extra counsel fees beyond the taxable costs. (Boyd & Suydam v. Brisban, 11 Wend. Rep. 529.) A similar allowance was made by the same court in the case of Murray v. Mumford, (2 Cowen’s Rep. 400;) which was decided before the adoption of the revised statutes. If a court, having a mere discretionary power to allow damages upon appeals, can make such an allowance, as damages sustained by the respondent in consequence of the appeal, it appears to be the duty of this court to allow the counsel fees which the defendants have been compelled to pay in the present case. For here it is not a mere matter of discretion; as the condition of the bond is imperative, that the obligors in the bonds shall pay, to the parties enjoined, such damages as they may sustain by reason of the injunction. Under a covenant of warranty in a conveyance also, the grantee, who has been evicted, is allowed to recover, against his grantor, the necessary counsel fees which he has been compelled to pay in defending his title; as a part of the damages which the grantee has sustained by the breach of the covenant of warranty. (Staats v. The Ex’rs of Ten Eyck, 3 Caines’ Rep. 118.) And I cannot discover any distinction, in principle, between that case and the one now under consideration. For if the extra counsel fees which the grantee had necessarily been compelled to pay in that case, in an unavailing attempt to defend his title, were a part of the damages occasioned by the breach of warranty, similar counsel fees, which these appellants were obliged to pay, in this case, to obtain a dissolution of the injunction, were a part of the damages which they sustained by reason of that injunction.

It is true, there are damages of a different description which the defendant usually sustains by the granting of an injunction which ought not to have been granted. And the principal object of the second clause of the 31st rule was to protect the defendant against such damages. So also in the case of the breach of warranty, the principal object of the covenant is to remunerate the grantee for the loss of his land, in case of eviction. And the necessary expenses of the defence in that case, and of the proceedings to obtain a dissolution of the injunction in the case under consideration, are merely incidental to the main object, of the covenant of warranty in the one case, and of the condition of the bond in the other. The rule was intended to protect the defendant against any injury he might sustain, by the allowance of an injunction ; whether the injunction was erroneously granted by the officer of the court where the case made by the bill did not warrant its being issued, or was properly allowed by the officer, but upon a partial or erroneous statement of the real facts of the case. And the object of the court, in requiring a bond in such cases, will be best effected by giving to the language of the condition of the bond its natural sense ; which will cover the necessary costs and counsel fees to obtain a dissolution of the injunction, as well as the damages which the party enjoined has otherwise sustained during the time the injunction was in force. If it was a mere matter of discretion, I might not be disposed to allow the counsel fees as damages in the present case; although the evidence before the master showed, without contradiction, that the amount paid was reasonable, and that the payment was necessary to obtain a dissolution of the injunction. But as they are clearly covered by the condition of the bond, I cannot disallow them without depriving the appellants of a legal right ; the object of the reference to the master being merely to ascertain the extent of the damage sustained, according to such condition. The decretal order of the vice chancellor upon the exceptions must, therefore, be so far modified as to allow the f 100, charged for the extra fees to the two counsel, employed to argue the case upon the motion for a dissolution of the injunction.

The other charges, for the personal services, &c. of the parties in attending the sale and going to see and consult with counsel, and the charge of the solicitor for attending to advise them at the sale of the property, are not damages recoverable under the condition of the bond, and must be disallowed. • Neither party is to have costs against the other, on this appeal.


text:
    Toll vs. Hiller.
    Where the solicitor of the complainant refused to receive from the defendant a partial payment on the complainant’s mortgage, as a payment to stop interest, hut consented to receive it as a deposit, with the understanding, that if the complainant would take the same as a payment and allow interest, it should be endorsed on the mortgage; and the complainant refused to receive the money unless the whole debt was paid; but subsequently the solicitor handed over to the complainant the money, with the understanding that the latter was not to allow interest thereon, until the residue was paid, of which the defendant was informed, and the defendant acquiesced in suoh arrangement; and the complainant, on receiving the money, used it as his own; Held, that the defendant was equitably entitled to have the money applied' as a payment, on his mortgage, as of the time it was received and used by the complainant.
    Compound interest cannot be recovered, unless there is a special agreement to pay ■ interest upon the interest of the principal debt, after such latter interest has become due and payable.
    Where property was sold, upon a decree of foreclosure, at a price greatly below its value, and was bid in by the complainant’s solicitor, in his own name, and the defendant, instead of applying to the court for a re-sale, entered into an arrangement with the purchaser to redeem the property, upon payment of the amount due upon the mortgage, with interest and costs, within a specified time, and to have possession of the mortgaged premises in the meantime; Held, that it was too late for the defendant, after he had broken his agreement to redeem the premises, to apply to the court to set aside the sale, and for a re-sale of the premises.

      Heldfwrther, that, as the defendant was in possession of the premises under such agreement made subsequent to the sale, and not as a defendant in the foreclosure suit, who was bound by the decree to relinquish the possession of the premises to the purchaser, such purchaser was not entitled to a writ of assistance to put him into possession of the premises; but that he must be left to his remedy at law, by ejectment, or otherwise.
    The facts of this case and the grounds upon which the application of the defendant, to set aside the sale in this case was denied, and the application to set aside the writ of assistance against him was granted, are stated in the opinion of the chancellor.

      J. Rhoades & S. Stevens, for the complainant, and for J. Sacia, the purchaser.

      A. Taber, for the defendant.
   The Chancellor.

This case comes before me upon an order to show cause, why the master’s report of the amount due upon the mortgage in this cause, the decree of sale, and the sale and report thereof, and all subsequent proceedings, should not be set aside; and also why the order of the court, allowing the writ of assistance to turn the defendant out of possession of .the mortgaged premises, should not be set aside. The bill was filed to foreclose a mortgage of $3000, dated the 18th of April, 1889, payable in six yearly payments, with interest annually. At the time the bill was filed, in May, 1840, one year’s interest and the first instalment of the principal, amounting together to the sum of $721, had become due. On the 8th of June, 1840, the defendant applied to Sacia, the complainant’s solicitor, and offered to pay $475 on the mortgage; but as the solicitor had been instructed not to receive a partial payment and stop the interest on it, as the complainant wished to receive the whole payment due, at once, he refused to receive it as a payment to stop interest, but consented to receive it as a deposit, and agreed that if Toll would take the same as payment and allow interest it should be endorsed. Sacia accordingly received the money and gave his own receipt therefor, to be accounted for. He saw his client the same day, who refused to receive the money unless the whole amount then due was paid. On the 20th of June, Sacia handed over the $475 to his client, with an understanding that the latter was not to allow interest thereon until the residue was paid. Previous to the commencement of the suit, and before any thing had become due, the complainant had also borrowed $30 of the defendant, with an understanding between them that it was to be offset against so much of the first payment. Shortly after the $475 was paid over to the complainant, the defendant was informed of the fact, and that interest was not to be allowed or deducted on account of that sum until the residue was paid. Hil-ler acquiesced, and promised to pay up the whole then due in a short time. I infer from the affidavits that the complainant actually used the $475 received on the 20th of June, 1840. If so, he ought in equity, to allow interest on it from that time; as an agreement to wait longer for the residue, on condition of having the use of this sum without' Interest in the meantime, would be usurious. And if application had been made in season, I think the court should have allowed this $475, to stop the interest on so much thereof as was applicable to the principal of the debt, beyond the amount of interest which was due and payable on the 20th of June, 1840, when the complainant received and used the money; although the latter merely gave to his solicitor an accountable receipt for the amount, at the time it was received. No further payment was made until after the second instalment, and another year’s interest, had become due. Hiller then made another payment to the solicitor of ,$550, including $5 which was counterfeit, and took a receipt for the amount from Sacia, to be accounted for,- without interest. This receipt is dated April 2, 1841, and the money was shortly afterwards handed to the complainant. At the time of this payment by Hiller he also pai$ the solicitor $38, for the costs which had then accrued in the foreclosure suit, and promised to pay up what was then due and payable in a few days; the balance then due and unpaid, being between $350 and $400, exclusive of the $30, and interest thereon, loaned to the complainant before the first payment fell due. No further payments were made, as agreed upon, however; and the complainant’s solicitor, on the 12th of July, 1841, proceeded upon the order of reference before the master, to obtain a report of the amount due on the mortgage; the bill having been taken as confessed. At that time, Sacia, the solicitor, endorsed the two sums of $475 and $550 upon the bond and mortgage, as of the 2d of April, 1841, in full of the first payment and the interest, thereon, and in part payment of the second instalment; and leaving a balance on the second instalment, according to such endorsement, of about $395. The master, however, by adding the interest to the principal at the end of the first year, and computing the interest on the whole for the second year, made the balance due the 1st of April, 1840, $409,70; making the amount actually due and payable on the 12th of July, the date of his report, $417,89. The amount of the $30 loaned to the complainant was not deducted, as the solicitor had no statement thereof. And the master also reported that the premises were so situated that they could not be sold in parcels without injury to the interests of the parties. The correctness of the master’s report is now sought to be impeached in this respect. But I am not satisfied, even upon the facts as they are now made to appear, that the report is wrong in this particular. Clearly the master’s decision was right upon the testimony before him, and it is now too late to inquire into its correctness.

The amount which was actually due and payable at the time of the master’s report, if the $30 and interest, together with the $475, are applied on the 20th of June, 1840, and the $550 on the 2d of April, 1841, would be about $60 less than the amount reported due by the master. Still, there would be due upon the decree, after the two payments, of $170, on the 19th of October, 1841, and $200 on the 30th of the same month, including a balance of $18,60 for the taxed costs, beyond the $38 paid in April, 1841, towards costs, about $21, including the $5 counterfeit bill received in the payment of April, 1841: in addition to the master’s fees and expenses of advertising the property for sale twice, after allowing the $30 and interest, and the two payments of June, 1840, and of April, 1841, with interest thereon. The difference between this statement and the statement of Sacia in schedule A., arises from the fact, that in his schedule, interest is cast upon the $210 of annual interest, from the time it became due until the time it was received, and from a mistake of $10, in calling the balance of the solicitor’s costs $28,30, and some other slight differences in casting.

. It may be proper to say, however, that as the interest was, by the condition of the bond and mortgage, to be paid annually, it would be perfectly equitable to receive interest on such interest from the time it was payable ; although, for special reasons of policy, courts will not allow interest upon interest, unless there is a special agreement to pay interest thereon after the original interest has become due and payable. As there was a clear balance due upon the decree, after making all proper allowances, it was perfectly regular to proceed and sell the property at the time it was sold. And it was the result of the defendant’s own negligence in not making the payments) after the solicitor had improperly indulged him, at the expense of his own client, from time to time for nearly two years, that the suit was not finally settled without proceeding to a sale. There is no pretence, therefore, for opening the sale, or any of the previous proceedings, on the ground of irregularity, or of any undue advantage taken of the defendant’s situation, either by the complainant or by his solicitor.

The fact, however, that the property was sold so much below its value, and leaving the defendant personally liable for the several instalments which had not yet become due upon the bond and mortgage, might itself have been sufficient to have justified the opening of the sale upon the terms of paying what was actually due, with interest and costs, if the defendant had applied immediately to the court, instead of arranging the matter with the purchaser. But the arrangement was perfectly fair and honorable on the part of the solicitor, and if the defendant had complied with the agreement on his part, according to its spirit and intent, the land would undoubtedly have been reconveyed to him ; and the solicitor would have been relieved from the necessity of raising the money to settle with his own client, the complainant in the suit.

The question whether the solicitor, after the defendant had refused to do him justice, and had driven him to the expense of an ejectment suit, refused reasonable terms of compromise, is one which will properly be considered upon the bill which I-Iiller has filed against Sacia to stay the proceedings in the ejectment suit; but it does not legitimately arise here. The sale, being regular, and the defendant having elected to rely upon the agreement with the purchaser to re-convey the property upon reasonable terms, the summary power of this court over the subject, by a motion in the original suit, appears to be at an end; especially as the agreement was entered into by the defendant with a full knowledge of all the facts upon which he now asks for relief on this application.

The fact that such an agreement was made, between the defendant and the purchaser under the decree, subsequent to the master’s sale, and that the defendant is now in possession under that agreement, and not in his character of a party, in this suit, who is bound by the decree to give up the possession to the purchaser, upon pain of contempt, furnished a good ground for setting aside the writ of assistance as irregular and unauthorized; the power of the court to enforce the delivery of possession by a summary proceeding being superseded by this voluntary arrangement between the purchaser at the sale and the party who was then in possession.

The order to show cause, except so far as relates to the setting aside the writ of possession for irregularity, must therefore be discharged with twenty dollars costs; which is a reasonable allowance for the costs of Sacia in opposing this application, after making a proper deduction, from his whole costs, for so much of the costs of the defendant as relates to the writ of assistance. The decision upon this application is to be without prejudice to the rights of either party, in the suits which are still pending between them and undecided.


author: The Chancellor

text:
    Bond vs. Howell and others.
    Where a complainant amends his hill during the running of an order for an absent defendant to appear, it is not necessary to obtain a new order for the absentee to appear and answer the bill as amended, and to advertise a second time.
    If the absentee neglects to appear, and an order is subsequently entered to take the bill as confessed against him, it is an order to take the bill as confessed in the state it is then in, including the amendments.
    The practice is the same, where the complainant amends his bill after the personal service of a subposna upon the defendant, who neglects to appear in the suit; and the service of a new subpoena upon such defendant, is not necessary to authorize the entry of an order to take the amended bill as confessed.
    This case came before the chancellor upon an appeal by the defendants Trowbridge and Nichols, from an order of the vice chancellor of the eighth circuit, refusing to dismiss the complainant’s bill for want of prosecution. And the only question was, -whether the bill, as amended, had been properly taken as confessed against an absent defendant, so as to place this suit in a proper situation for taking testimony as between the complainant and the defendants who had appeared and answered. The complainant, after he had obtained the usual order for the absent defendant to appear and answer, amended his bill. And the order having been duly published, and the absentee having neglected to appear, the complainant entered the usual order to take the bill as confessed against him,

      J Rhoades, for the appellants.

      R. W. Peckham, for the respondent.
   The Chancellor

said, the bill as amended had been regularly taken as confessed against the absentee, and the suit was, therefore, in readiness to take testimony as between the complainant and the other defendants; that where the complainant amends his bill during the running of the order for an absentee to appear, it was not necessary to obtain a new order for the absentee to appear and answer the bill as amended, and to advertise a second time; that if the absentee neglected to appear, and an order was subsequently entered to take the bill as confessed against him, it was an order to take the bill as confessed in the state in which it then was, including the amendments. And he said the practice was the same where the complainant amended his bill after the personal service of a subpoena upon a defendant, who neglected to appear in the suit; and that the service of a new subpoena was not necessary, in such a case, to authorize the entering of an order to take the amended bill as confessed.

Order of the vice chancellor affirmed.


text:
    Coddington vs. Comstock & McIntyre.
    A defendant in a creditor’s suit, who has not entered his appearance, is not entitled to double the usual time of service of papers, whore they are served upon him through the post office as authorized by the 191st rule.
    The notice to the defendants in a creditor’s suit had been served upon them by putting the same into the mail directed to them at their place of residence, according to the provisions of the 191st rule, as amended in the revision of 1844. And the question was, whether the defendants were entitled to double the usual time allowed upon a personal service.
   The Chancellor

decided that the defendants who had not appeared in the cause, were only entitled to the usual time, upon a service through the post office under the provisions of the 191st rule, He said the 14th and 15th rules, which required double the usual time, where the service was upon an agent or by putting into the post office, only applied to services upon solicitors who had appeared in the cause. But that those rules were not applicable to services upon parties who had not entered their appearance.


text:
    J. & A. King vs. Ray & Hensdil.
    Where the complainants’ bill charged that a promissory note of the defendant K. was given to them, by him, to enable them to borrow money on it, from H. at an usurious rate of discount, without stating that the facts occurred When the defendant H. was present, or that they were within his personal knowledge; Held that the answer of the defendant H., that as to all those matters he was ignorant whether &c., using the words of the charge in the bill, With all the circumstances of time, place, &c., without saying, in terms, Whether he had any information and belief on the subject, or stating that he Could not answer the charge as to his information or belief, was insufficient, and was properly' excepted to upon that ground.

      It is a general rule, that as to matters not within the defendant’s own knowledge, he must answer both as to his information and belief. But it is not necessary that he should say, in so many words, that he has no knowledge, information or belief, in relation to the charges in the bill. Any other expression, which amounts to the same thing, in substance, will answer.
    Where a defendant denies all knowledge or information as to the facts charged in ■ the complainant’s bill, it is sufficient; although he says nothing as to his belief on the subject.
    If the defendant answers that he has neither knowledge nor information as to the matters charged, except such as is derived from the statements in the bill itself, he is not bound'to express his belief one way or the other.
    Where the matters charged in the bill are alleged to have occurred, with divers circumstances, it is not sufficient for the defendant to answer such matters literally, denying the same upon his information or knowledge, with the attendant circumstances ; but he must admit or answer the substance of each charge.
    If the charge in the bill embraces several particulars, the answer of the defendant should be in the disjunctive, denying each particular charged, or admitting some and-denying others, according to the facts.
    This was an appeal, by th,e complainants, from an order of the vice chancellor of the seventh circuit, overruling a master’s rep'ort, which had allowed several exceptions, for insufficiency, to the answer of Hensdil, one of the defendants. The object of the bill was to obtain relief against two usurious notes, the one given by the complainants to the defendant Ray, and the other given by Ray to them or their order,- and endorsed by them to the defendant Hensdil, upon an usurious consideration. The matters charged in the bill, as to which these exceptions for insufficiency related, were alleged to have taken place between the complainants and Ray, without stating them to have occurred when the defendant Hensdil was present, or that they were matters within his personal knowledge. As to all these matters, Hensdil answered in the same manner; that he was ignorant and unable to answer whether &c., using the words of the charges, with all the circumstances of time, place, &c. as stated in the bill, without saying, in terms, whether he had any information or belief on the subject, or stating that he could not answer the charge as to his information or belief. The master allowed the exceptions in question, with some others as to which his report was submitted to. As to the allowance of the first mentioned exceptions, the respondent Hensdil excepted to the report; and the vice chancellor having overruled the report in that respect, the complainants appealed to the chancellor.

      H. Burdick, for the appellants.

      J. Rhoades, for the respondent.
   The Chancellor.

The general principle is well settled, that as to matters which are not within the defendant’s own knowledge he must answer both as to his information and belief. True, it is not necessary that the defendant should say, in so many words, that he has no knowledge, information or belief in relation to the charge contained in the bill; but it is sufficient if he uses any other expression in the answer which necessarily amounts to the same thing, in substance. Thus in Jones v. Wiggins, (2 Young & Jer. Exc. Rep. 385,) where the defendant stated that he was wholly ignorant of the matters charged, and could not make any other answer thereto as to his knowledge, belief, or otherwise, it was held equivalent to a denial of any knowledge, information or belief on the subject. So, in the case of Morris v. Parker, (3 John. Ch. Rep. 297,) where the defendant denied all knowledge or information as to the facts charged in the bill, Chancellor Kent held the answer to be sufficient, although the defendant said nothing as to his belief; upon the ground that a defendant, who had no knowledge or information of the matters charged, except from what was stated in the bill, was not bound to express any belief one way or the other. And in the same case, the answer of the defendant, that he was utterly and entirely ignorant of the fact alleged, as to the time of issuing a commission of bankruptcy in England, was held sufficient. But the connection in which that language was found in the answer, rendered it perfectly certain that the defendant intended to deny any information as well as any knowledge of the fact charged. In Amherst v. King, (2 Sim. & Stu. 183,) where the defendant answered that “ it might be true for any thing that he knew to the contrary, that” &c., as stated in the bill; “ but that he was an utter stranger to all and every such matters, and could not form any belief concerning them;” Sir John Leach considered the answer as a denial that he had any information on the subject. But in the case of Smith v. Lasher, (5 John. Ch. Rep. 247,) where a similar answer was put in, but leaving out the concluding clause, that the defendant could not form any belief concerning the matters charged, the answer was held to be insufficient. Chancellor Kent, in that case, says, the expression they are strangers to the foregoing facts, are words of doubtful import. The defendants may be strangers to the facts, and yet have information and belief in respect to them; or, they may be strangers to the facts, and have no information concerning them. So, in the preseut case, the words of the answer, that the defendant is ignorant and unable to answer whether the facts are as alleged in the bill, are words of doubtful import, and may have been intended as a mere denial of the defendant that he had any knowledge of the facts alleged. For the language used does not necessarily exclude the idea that the defendant might have had information upon the subject dehors the bill, which would enable him to form a belief as to the truth of the facts charged. If the expression had been, that the defendant was ignorant and could not answer, either as to his information, belief, or otherwise, as in the case of Jones v. Wiggins, before referred to, the answer would have been sufficient, if another objection to it, which I shall hereafter notice, could have been obviated. In the recent case of Brooks v. Bryan, (1 Story’s Rep. 297,) it was held that a defendant was bound to show the state of his mind as to his belief or disbelief of every material fact stated in the bill. And this is unquestionably so, unless the answer clearly shows that he has neither knowledge nor information on the subject.

Again; it is a substantial objection to this answer, that the defendant has answered literally as to charges in the bill which are laid to have been done with divers circumstances. For instance, that part of the answer to which the first exception relates, is in substance that the defendant is ignorant whether the complainants, on the particular day and year, and at the place, mentioned in the bill, applied to Ray to obtain a note of a particular description, and to be discounted by the defendant at an usurious rate of interest, and that upon such application, a note was corruptly and against the form of the statute, made, arid dated on the 15th of January, 1842, for the amount and payable at the time stated in the bill; and was delivered to the complainants to be taken to the defendant Hensdil, to raise money on at an unlawful rate of interest, for the benefit of the complainants, &c. This part of the answer may therefore be all true, although the defendant was fully informed of and knew every fact alleged in the bill to be true, except the immaterial one that the application was made to Ray at Lafayette, as stated in the bill. And the same objection applies to the answer to the allegations, in the bill, to which the other exceptions relate. The defendant must not merely answer the several charges in the bill literally, but he must admit or answer as to the substance of each charge; and not by way of negative pregnant, as in this case. (Mitf. on Pl. 250. Welf. Eq.Pl. 365. Story’s Eq. Pl. 654.) And, as a general rule, where the charge in the bill embraces several particulars, the answer should be in the disjunctive ; denying each particular, or admitting some and denying the others, according to the fact.

The decision of the master, allowing these exceptions to the answer for insufficiency, was therefore right; and the order appealed from is erroneous and must be reversed, with costs. The exceptions to the master’s report must be overruled and the report confirmed; and the defendant Hensdil must pay the costs upon the exceptions to the answer, and upon the argument of the exceptions to the report, to be taxed. He must also put in a further answer within the twenty days allowed by the master, or within such further time as may be allowed by the court for that purpose, or, the bill may be taken as confessed against him for want of such answer.


text:
    Morley & Elliman vs. Green and others.
    The court of chancery has no power or jurisdiction over a person who is not a party to the suit, to compel him to deliver over to the master, for the purpose of having them delivered to the complainant, books and papers belonging to the parties to the suit, which such stranger to the suit claims were placed in his hands by one of the parties, before the commencement of the suit, as security for a debt.
    Where books and papers, in the hands of a third person, are wanted as evidence, upon a reference to a master to appoint a receiver, the proper course is to compel the person, in whose possession they are, by a subpoena duces tecum, to attend before the master, with such books and papers, and to give evidence in relation thereto.
    But neither the master nor the court would, in that case, have the right to compel the delivery of the books and papers, to the master, for any other purpose than as evidence on the reference.
    Where the complainant wishes to obtain the custody of the books and papers in the hands of a third person, the proper course is to make such person a party defendant.
    Upon the hearing of a motion against a third person who is not a party to the suit, the pleadings and other proceedings in the cause, cannot be used, if they have not been served on such person, with the notice of the motion.
    This was an appeal by S. D. Wilmott, from an order made in this cause, by the vice chancellor of the first circuit, directing the appellant to bring into the master’s office certain account books in his possession, that the receiver appointed in the suit might have the benefit of the same before the master, and that the master might deliver them over to the receiver, if he should deem it proper that the receiver should be put into the possession of them. The appellant was not a party to this suit, but being called before the master, to whom it was referred to appoint a receiver of the copartnership effects of the firm of Green <fc Morley, and being sworn as a witness, the master required him to produce and deliver to him certain books in his possession, belonging to the late firm of Green' & Morley. The witness testified that the books were delivered to him, before the commencement of this suit.; that some of them were delivered to him, as a security for responsibilities he had assumed for the firm, &c. and that, upoii others, he had a lien for labor performed thereon. He therefore refused to deliver them to the master, or to the receiver, until his claims were paid. A motion was thereupon made to the vice chancellor, for an attachment against the witness, or for such other order as might be proper. The appellant was served with the copy of an affidavit made by the receiver, and with a notice that the motion would be founded upon that affidavit, and upon the pleadings and proceedings on file in this cause, including the order for the appointment of a receiver, and the master’s report showing the approval and appointment of such receiver. And, upon the hearing of the motion before the vice chancellor, the appellant insisted that the pleadings and other proceedings in the shit, which had not been served upon him, and which he had never seen, could not be read, as he had not had an opportunity to answer the same. None of these papers were furnished to the chancellor, upon the hearing of. the appeal, except the examination of the appellant as a witness before the master; nor did it appear whether they were or were not used before the vice chancellor upon the hearing of the motion.

      M. T. Reynolds, for the appellant.

      Julius Rhoades, for the respondents.
   The Chancellor.

It is not material to the decision of this appeal to inquire whether the vice chancellor did or did not allow the papers referred to in the notice, and which were not served upon the appellant, to be read upon the motion. It would however be irregular and improper to allow papers to be read against Wilmott, upon the motion, which had not been served on him; so as to give him an opportunity to answer them, orunderstand'the contents thereof. But admitting those papers to have contained all that the respondent’s counsel supposes them to have contained, and that they had been regularly served upon the appellant, the order appealed from is clearly erroneous. Ipor the court had no jurisdiction over the appellant, he not being a party to the suit, to compel 'him to deliver over the books and papers in his possession, to the master, with a view to their delivery to the receiver. He was a mere witness before the master; and, if these books were wanted as evidence in relation to any matter of inquiry upon the reference, the proper course to obtain the books, for that purpose, was to serve the witness with a subpoena duces tecum, to attend with the books, and to give evidence in relation to the same. But neither the master nor the court, even in that case, would have the right to take the books out of the possession of the witness, and deliver them over to the receiver, without the consent of such witness; or to allow them to be used for any other purpose than as mere evidence, upon the subject of the inquiry which was properly before the master, upon the reference.

A case very similar to the one now under consideration came before the court of review, in England, in August last. There, the attorney of the bankrupts had in his. possession a deed, belonging to them, which he refused to deliver to the solicitor of the assignee — claiming a lien upon such deed, for professional services. He was thereupon summoned as a witness, before the commissioner in bankruptcy, to be examined touching the estate of the bankrupts, and to produce the deed upon his examination. He attended accordingly, and produced the deed. And the commissioner having decided that the witness had no lien upon the deed, ordered him to deliver it up; which he declined to do, until his lien was paid! The commissioner then directed the officer of the court to take the deed from him; which was accordingly done. But, upon appeal to the court of review, the. Chief Judge, Sir James Lewis Knight Bruce, said the court could not in this way decide as to the validity of the alleged lien; and that the commissioner might as well have taken from the witness the suit of clothes in which he came to court, as to take the deed upon which he claimed to have a lien. (See Ex parte Llewellyn, 8 Lond. Jur. Rep. 816.)

So in the case under consideration, the appellant was a mere witness before the master, upon the reference, and the court had no jurisdiction aver him except in that character. It had no right, therefore, to order him to deliver up the books in his possession, whether his claim to such possession was or was not well founded. ’ The agency of the appellant, as he testified, had ceased before the commencement of this suit. And if the complainants wished to obtain possession of these books, upon the ground that' he improperly withheld them, they should have made him a party to their suit, either by an amendment of them bill or otherwise; so as to enable the court to extend the receivership to him, so far as related to the books in his possession. Or if they merely wanted the books as evidence before the master, upon the reference, they should have called upon him to produce them, as evidence, by a subpoena duces tecum, in the usual way.

The order appealed from is therefore erroneous and must be Reversed; and the application must be denied, with costs.


text:
    In the matter of Giles, a lunatic.
    Where the court had directed a feigned issue to try the question of lunacy, and a third person, whose conveyance was overreached by the inquisition, had consented to join in the issue and to be bound by the result thereof; Held, that the counsel for the respective parties to the suit were not authorized to abandon the trial of the issue, without the sanction of the court; and to leave the validity of the lunatic’s conveyance to be decided in some other mode.
    And the parties, without such sanction, having entered into a written agreement to .abandon the feigned issue, the court set aside the agreement, and directed the committee of the lunatic to proceed to the trial of such issue.
    Upon the petition of G. Willoughby, a commission of lunacy was issued in this case, and J. Giles was found to be a lunatic. An application was afterwards made to traverse the inquisition, and a feigned issue was awarded upon condition that J. G. Reynolds, whose bargain with the lunatic, in relation to a sale of his real estate, was overreached by the inquisition, should become a party to such issue; and should give security to abide the further order of the court in relation to the same, and to his alleged dealings with the lunatic. An i^sue was framed and a bond given accordingly; but, before the trial of the issue, a stipulation was entered into, without the sanction of the court, between the petitioner and the solicitor of the lunatic and of-Reynolds, to abandon the issue, and for the appointment of a committee of the lunatic. No provision however was made for the abandonment of the claim of Reynolds, arising out of the agreement which he had made with the lunatic, and which was overreached by the finding of the jury. The court refused to sanction the stipulation to abandon the issue. And the petitioner thereupon applied to set aside such stipulation, or for such other order in the premises as should be proper.

      E. Graves, for the petitioner.

      H. H. Cozzens, for Giles and Reynolds.
   The Chancellor.

The court having awarded an issue in this case, upon such terms and conditions as the chancellor thought proper and necessary, not only to protect Reynolds, whose contract with the lunatic was overreached by the inquisition, but also to protect the estate of the lunatic from the expense of further litigation in respect to such contract if the inquisition should be sustained, it was not competent for the parties, by stipulation, to discharge that order of the court. The stipulation, which was wholly unauthorized, must therefore be set aside; unless Reynolds, whose dealings with the lunatic are overreached by the finding of the jury, consents to abandon all claim, in relation to the property of the lunatic, arising out of any dealings with him subsequent to the time when, by the inquisition, the lunacy is found to have commenced j and also consents that the court may, by a summary order, set aside all dealings between him and the lunatic subsequent to the commencement of such lunacy, so as to place the parties, and the estate of the lunatic, in the same situation as they would have been if no such dealings had been had between them, after such lunacy commenced according to the finding of the jury. If Reynolds, within thirty days after notice of the order to be entered hereon, delivers such a stipulation to the solicitor for the petitioner, to be filed with the register, then the previous stipulation between the solicitors of the several parties is to stand; and the order for the feigned issue is to be discharged. But if Reynolds neglects to execute and deliver the required stipulation, within the time specified, the stipulation, relative to the abandonment of the feigned issue, is to be set aside; and the parties are to be directed to proceed and try the feigned issue, in the same manner, and with the like effect, as if such stipulation to abandon the same had never been made.

As both parties acted without the sanction of the court, and-have thereby rendered this application necessary, neither is entitled to costs as against the other; nor is either entitled to costs, upon this application, to be paid out of the estate of the lunatic.


text:
    Hadley, trustee, &c. vs. Chapin and others.
    Where C. and J., in 1832, gave a mortgage to H., as trustee for the heirs and devisees of K.; and the mortgage was conditioned for the payment of $1300, and interest annually, the principal to be paid within thirty days after a demand of the same; and in November, 1834, J., one of the mortgagors, procured himself to be appointed trustee, and gave security for the performance of his trust$ and previous to the appointment of X as trustee, he and the other mortgagor sold and conveyed a part of the mortgaged premises to A. and L., in equal moieties, and took from them mortgages to secure the payment of the purchase money; and X after-wards purchased the interest of the other owners of the mortgaged premises, and took conveyances therefor, and also took assignments of the mortgages given by A. and L.; and in July, 1835, after J. was appointed trustee, and, while he was the holder of the bond and mortgage for $1300 as trustee, as well as the owner of that part of the mortgaged premises which had not been previously conveyed to A. and L., he conveyed the undivided half of that part of the mortgaged premises which then belonged to him, to M.; and in March, 1837, he also conveyed the other undivided half of the same premises to M., with warranty; and M. paid to J. $3000, on account of such purchases, while J. was such trustee and the holder of the said bond and mortgage for $1300 ; and parts of the premises conveyed by J. to M. were subsequently conveyed by M. to Y. S. and E.; and in August, 1840, J., having become insolvent was removed as trustee, and H. was appointed trustee in his place, and J. handed over to H. the said bond and mortgage as a subsisting security upon the mortgaged premis.es; and Y. S. and E., the purchasers from M., put in an answer, insisting that the mortgage for $1300 was paid while J. held the same as trustee;

      Held, that, although J. was the holder of the mortgage for $1300, and the owner of the- equity of redemption in that part of the premises conveyed to M» with warranty, at the time the conveyances to M. were executed, as the fact that J. held the mortgage in the character of trustee appeared on the face of the mortgage, there could be no merger of the mortgage, without actual payment to the trustee; but that J. would himself be estopped both at law and in equity, by his covenants of warranty, from enforcing the payment of the mortgage for his own benefit; although nothing short of the actual receipt of the money by J. could deprive the cestuis que trust of their right to have the mortgage enforced against the land for their benefit.

      Also Held, that the wife of A., one of the parties to the suit, who was entitled to dower in the part of the premises conveyed to A., was a competent witness for the grantees of M., to prove the payment of the mortgage; as she, by suffering the bill to be taken as confessed against her, admitted that the mortgage was a valid and subsisting incumbrance upon any interest she had in the premises. But if she had put in an answer, insisting upon the payment of the mortgage, as a de-fence to the suit, she would have had a common interest with the grantees of M. in the matters to which she was examined, and would have been an incompetent Witness for them.

      Held further, that if J. received money while he was holder of the mortgage as trustee, which money it was his duty to apply thereon, the law will make the application, if the money has not been misapplied by him, with the concurrence or con- ■ sent of the grantees of M., under whom said grantees claim their several portions of the mortgaged promises.

      Also Held, that, as J. and his co-mortgagor when they conveyed to A. &L., agreed that the grantors should pay off all the incumbrances, and that the grantees should retain a part of the purchase money, for which they gave their bonds and mortgages, until such incumbrances were paid off; and that, if the grantors did not pay off the incumbrances, A. & L. might discharge the same out of the moneys retained, it became the duty of J. to apply such moneys to the satisfaction of the incum-brance in question, if he received them from them, while he held such incumbrance as trustee.

      Also Held, that, as J. was the holder of the mortgage as trustee, and was the owner of the equity of redemption of that part of the premises, which, as between him and A. & L. was primarily liable for the mortgage debt, a conveyance of the premises with warranty,' and the actual receipt of the purchase money to the extent of the mortgage, would operate as a payment and extinguishment of the mortgage, both' in equity and at law; unless the purchase money was misapplied by the trustee, with the knowledge and consent of M. The receipt of the money by the trustee, under such circumstances, operated as an actual payment of the mortgages; and a subsequent misapplication of the money, by the trustee, could not, either at law or in equity, revive the mortgage as against the purchaser or those claiming under him.
    Where a variance between the mortgage set forth in the bill of complaint and the mortgage produced in evidence, is merely technical, and the defendant is not misled by the misstatement in the bill, the variance will be disregarded.
    Where the principal of a mortgage was payable in thirty days after demand of payment, in a suit against the mortgagor and his grantees for the foreclosure of the mortgage, it was held that the written admission of the demand, by the mortgagor, in connection with proof that such written admission was signed more than thirty days before the commencement of the suit, was sufficient evidence of the demand as against the grantees of the mortgagor.
    This was an appeal, by four of the defendants, who appeared and answered in this cause, from a decree of the late vice chancellor of the seventh circuit. The Bill was filed to foreclose a mortgage given by the defendants Chapin, Johnson, Maltby, and Gage, to Hendricks and Chamberlain, as trustees for the heirs and devisees of I. Kendig, deceased, upon certain premises in Seneca county. The mortgage was executed in March, 1832, and was conditioned to pay $1300, and interest annually; the principal to be paid within thirty days after the same should be demanded. The annual interest upon the mortgage was duly paid to the trustees, until March, 1834. The trustees and mortgagees having died, previous to November, 1834, Johnson, one of the mortgagors, on the 26th of November, 1834, procured himself to be appointed trustee for the devisees and heirs of Ken-dig, in the place of the former trustees, by an order of the vice chancellor of the seventh circuit; and gave security for the due performance of his trust. Previous to the appointment of Johnson as such trustee, he and the other mortgagors had sold and conveyed a part of the mortgaged premises to J. Alleman and A. Lucas respectively, in equal moieties, and had taken from them mortgages to secure the payment of the purchase money. Johnson afterwards bought the interests of Chapin, Maltby and Gage in the mortgaged premises, and took conveyances therefor, and also took assignments of their interests in the mortgages given by Alleman and by Lucas. In July, 1835, after Johnson was appointed trustee, and while he was the holder of the bond and mortgage in controversy in this cause, as well as the owner of that part of the mortgaged premises which had not previously been conveyed to Alleman and Lucas, he conveyed the undivided half of the part of the mortgaged premises which then belonged to him, ■ to W. McCarty; and in March, 1837, he also conveyed the other undivided half of the same premises to McCarty, with warranty. McCarty paid to Johnson three or four thousand dollars on account of those purchases, while he was the holder of the bond and mortgage in controversy in this suit as such trustee. Parts of the premises thus conveyed by Johnson to McCarty were subsequently conveyed'by the latter to the defendants W. Yost, J. H. Seighfried, and E. B. Micldey. And W. Yost afterwards sold part of what had been thus conveyed to him, to the defendant C. Yost.
    In August, 1840, Johnson having become insolvent, an application was made to the vice chancellor to remove him as trustee. He was removed accordingly, and the complainant S. G. Hadley was appointed trustee in his place. And Johnson having delivered the original bond and mortgage to the new trustee, as a valid and subsisting security upon the mortgaged premises, the new trustee applied to the vice chancellor for directions, in relation to the same. The vice chancellor thereupon authorized the complainant to institute this suit, for the foreclosure of the mortgage; upon being indemnified by Johnson against any costs to which the trust estate might be subjected in consequence of the suit.
    This suit was instituted accordingly. And Johnson, Chapin, Maltby, and Gage, the original mortgagors, together with W. Yost, C. Yost, and Seighfried and Mickley, and other persons who were then owners of different portions of the mortgaged premises, were made defendants. The defendants W. Yost, C. Yost, Seighfried, and Mickley, the appellants, put in an answer setting up their several claims to portions of the mortgaged premises, and insisting therein that the mortgage was paid and discharged while Johnson held the same as trustee j and setting forth the two conveyances from Johnson to McCarty, under whom they had derived their titles. All the other defendants suffered the complainant’s bill to be taken as confessed against them. The cause was heard upon pleadings and proofs as to the defendants who had answered. And the vice chancellor having made a general decree for the foreclosure and sale of the mortgaged premises, without excepting the parts thereof which belonged to the defendants who had answered and defended the suit, those defendants appealed to the chancellor.

      J. K. Richardson, for the appellants.
    There is a variance between the mortgage proved and the one set forth in the bill. The proof of the demand of payment of the mortgage money is not in accordance with the terms of the mortgage, nor with the allegation in the bill.
    The mortgage estate, under the mortgage set forth in the bill, was merged in the greater estate — the equity of redemption— which Johnson owned while he held the mortgage. The mortgage, by such merger, became extinguished; and no proceedings could be had to foreclose the same. The holding of the mortgage as trustee, by Johnson, did not prevent tile merger. Johnson had the entire control of the mortgage, in like manner as if he had been an assignee in his individual right. He could receive payment of the same. He could acknowledge satisfaction, without receiving payment. The cestuis que trust cannot be injured by the merger. Johnson and his sureties are liable to account to them for the amount of the mortgage. The complainant ought to have pursued his remedy against Johnson and his sureties,, and not have attempted to foreclose the mortgage against innocent and bona fide purchasers. If Johnson had received actual payment of the mortgage, the only remedy of the complainant would have been against Johnson and his sureties. The subsequent acts of Johnson show that he intended that the mortgage should be extinguished. (James v. Morey, 2 Cowen, 285, 6, 7.) The purchase by Johnson of the entire interest in the equity of redemption, and his subsequent conveyances to McCarty with warranty, are acts which' conclusively show that his intention was, that there should be a merger and extinguishment of the mortgage. {Idem, 282 to 287, 300 to 309, 317 to 320.)
    Johnson is estopped, by his conveyance with warranty to McCarty, from alleging the existence of the mortgage, as an in-cumbrance on the premises. And the complainant is in no better situation, to enforce the mortgage, than Johnson would have been had he continued trustee. A mortgage not a valid lien in the hands of the mortgagee, is not a valid lien in the hands of an assignee. (Pendleton v. Fay, 2 Paige, 202.) The as-signee takes it subject to all existing equities as between the prior parties. (Tü&moureux v Vanderburgh, 7 Paige, 316.) Johnson is- estopped at least as to the defendants who derive their title from McCarty, Johnson’s grantee. (Vroom v. Dit-mas, 4 Paige, 526; Kellogg v. Wood, Id. 578.) The doctrine of estoppel extends to bona fide purchasers from parties to the deed or instrument which is to operate as an estoppel. (Jackson v. Waldron, 13 Wend. 189.) An estoppel in pais is as conclusive as an estoppel by deed or matter of record. In this case there is both an estoppel by deed and in pais. The proofs also establish the fact of the payment of the mortgage to Johnson. Several funds were in his hands, out of which he might, and ought, and probably did, pay this mortgage. The law will regard as done, what, in equity and good conscience, ought to have been done. The same hand which received the money, was to pay. (Kellogg v. Wood, 4 Paige, 595.)

      J. McAllister, for the respondent.
    The complainant is entitled to demand and receive the moneys due on the mortgage set forth in the bill, and to enforce payment thereof as trustee. The mortgage was recorded prior to the conveyance by Johnson to McCarty. And the only defence set up in the answer of the appellants is payment. They have no equities. They purchased with full knowledge of the mortgage and of its lien on the premises. The appellants do not set up any fraud on the part of Johnson, as against them or their grantor, McCarty. The conversations or declarations of Johnson, in relation to his intention to pay the mortgage, made subsequent to the conveyance to McCarty, of which the appellants had neither knowledge nor notice when they purchased, cannot be evidence, in their favor, of the payment of the mortgage. Johnson holding the mortgage as trustee, could not discharge the same except upon the actual receipt of the money due on it. He could not pay his individual debt, with the mortgage, to the injury of the ces-tuis que trust. Even an acknowledgment of satisfaction of the mortgage, by Johnson, without actual payment thereof, would have b$en no defence to the bill; except, perhaps, in favor of bona fide purchasers, after the record of the satisfaction. Much less can the mere verbal declarations of Johnson, without actual payment, be deemed a .discharge of the mortgage. But Johnson never did declare that the mortgage had been paid. The witness, Mrs. Alleman, who proved certain declarations of Johnson, was an incompetent witness for the appellants. The answer sets up, that the obligors and mortgagors in the bond and mortgage, or some of them, paid to Johnson the money due on the mortgage. This allegation should have been proved as laid. Johnson being one of the mortgagors and holding the mortgage as trustee, could not pay the money so as to discharge the security, in any other way, than by actually applying, the money on the mortgage, to the benefit of the cestuis que trust. There is no evidence that he has done so. There was no merger of the mortgage. Johnson held the mortgage' and the legal title in different rights. Where that is the case, there can be no merger. But Johnson was at no time sole owner of the legal title. No moneys received by Johnson, unless received expressly aS payment on the mortgage, could operate in law as payment. No moneys were so received. The bond and mortgage are conclusive evidence of a debt due, until payment is proved. No payment has been proved in this ease. Where a trustee is dealing with trust funds, his acts will be construed most strongly in favor of the trust fund. It appears affirmatively, from the testimony, that no part of the funds in the hands of Johnson were applied, or intended to be applied, in payment of the mortgage.
   The Chancellor.

The first objection to the complainant’s right to a decree, which was made by the appellants in the court below, was that the mortgage produced, in evidence was variant from that stated in the bill. This variance consisted in stating in the bill, that the mortgagors covenanted in, and by such mortgage, to pay the money secured thereby. The objection, however, was merely technical; as they did in fact give their bond for the payment of the mortgage debt, at the same time the mortgage was executed. Although there is no express covenant in the mortgage itself to pay the debt, and the revised statutes have abolished the implied covenant arising from the condition of the mortgage, the defendants’ answer shows they could not have been misled by this misstatement in the bill. Besides, the bill itself refers to the record of the mortgage, and the book and page in which it is contained; and the answer admits that statement of the bill to be correct, in reference to the mortgage which was actually given by the mortgagors, and which was produced by the complainant upon the hearing. I am inclined to think, therefore, that this erroneous statement in the bill as to the supposed covenant contained in the mortgage, should be disregarded. In the recent case of The Ontario Bank v. Schermerhorn, (10 Paige's Rep. 109,) this court disregarded a variance between the date of a mortgage as stated in the bill, and the true date thereof, as the same appeared upon the hearing ; where it appeared from the defendant’s answer that he was not misled by the variance, but was fully apprised as to the mortgage which the bill was filed to foreclose, and had set up his defence in reference to such mortgage.

Neither is the objection well taken, that the demand of payment, thirty days previous to the commencement of the suit, was not sufficiently proved, A mere admission by .the mortgagors, that such a demand had been made, would not probably have been legal evidence of the fact, as against the other defendants, who had, by their answer, put the fact of such demand in issue. The proof in this case, however, goes much further than, a mere admission of a past fact by a third person. The written admission, produced in evidence, purports to have been given by the persons upon whom the demand was made, on the day of such demand. And the solicitor in the cause swears that this admission was signed, by the mortgagors, more than thirty days before the commencement of the suit. . This he could only have known, from having seen the written admission signed by the mortgagors, in their own hand-writing; which he proves, more than thirty days previous to his filing of the bill. The admission itself, therefore, is equivalent to an actual demand of payment at the time such admission was signed by the mortgagors. Besides, the interest upon the mortgage, if the mortgage had not been paid, was due and payable annually, and without any demand. This, of course, was sufficient to authorize the filing of the bill.

Although the defendant Johnson was the holder of the mortgage, and was the owner of the equity of redemption in the part of the mortgaged premises gonveyed by him to McCarty, at the time the conveyances to McCarty were made, the fact that he held the mortgage merely in the character of trustee, appeared upon the face of the mortgage, and of the order of the court substituting him as trustee in the place of the original mortgagees who were dead. This, in equity at least, would prevent a merger which would have the effect to deprive the cestuis que trust of the benefit of the mortgage, without an actual payment to the trustee. Although Johnson himself, both at law and in equity, would be estopped by his covenants of warranty, from enforcing the payment of the mortgage for his own benefit, nothing short of the actual receipt of the money, by him, could deprive the cestuis que trust of their right to have the mortgage enforced against the land, for their benefit. The question then arises whether, upon the evidence in this case, the court is authorized to declare that the mortgage was actually paid to Johnson, while he was trustee ; which question I will now proceed to consider.

Upon this question the court must lay entirely out of view what Johnson may have sworn to before the master, as it is clearly not evidence as against these defendants. The testimony of Mrs. Alleman and of McCarty was properly received in this cause to prove the fact of payment-; as neither of them was interested in the event of the suit, in favor of the parties calling them as witnessed. Mrs. Alleman was the widow of a grantee of a part of the mortgaged premises, which was conveyed to her husband previous to the appointment of Johnson as trustee. She was therefore probably entitled to dower in that part of the mortgaged premises. And if she had put in an answer, insisting upon the payment of the mortgage, as a defence to the suit, she would have had a common interest with these appellants in "the matters to which she was examined. But by suffering the bill to be taken as confessed against her, she admits the mortgage to be a valid and subsisting incumbrance upon any interest she may have, in the part of the mortgaged premises which was conveyed to her husband, in September, 1832. All the defendants, except these four appellants, having suffered the bill to be taken as confessed against them, they thereby admitted the amount due upon the mortgage as charged in the bill, for all the purposes of this suit; and proof of payment of the mortgage will only go to discharge the lands of the four defendants who have answered and set up that defence. The witness, Mrs. Alleman, therefore, instead of being interested in favor of establishing the defence of those defendants, had a direct interest the other way. For if their lands are charged with the mortgage, they must be first sold to satisfy the debt and costs, upon the principle of charging the lands in the inverse order of'their alienation; the deed to her husband having been given several years before either of the deeds to McCarty, under which the appellants claim their respective portions of the mortgaged premises. Neither has McCarty any interest in the event of this suit in favor of the defendants who have answered, they having released him from his covenants of warranty; although he would have had an interest in the question to which he was examined, if he had not previously parted with his interest in other portions of the mortgaged premises. Even in that case, however, the objection would have gone to his credibility only, but not to his competency.

To show the mortgage paid, it is not necessary for the defendants to prove that Johnson actually endorsed moneys upon the bond and mortgage, or that he had paid the amount of such bond and mortgage to the cestuis que trust, or to the new trustee. For, if he received money, while he was the holder of that bond and mortgage as trustee, which it was his duty to apply thereon, the law will make the application; unless such money has been misapplied -by him, with the concurrence or consent of these defendants, or nf McCarty under whom they claim their several portions of the mortgaged premises.

It appears by the testimony of G. J. Alleman that at the time of the purchase of the part of the premises which was conveyed in moieties to J. Alleman and A. Lucas, in September, 1833, it was agreed that the grantors should pay off all the incumbran-ces, and that the grantees should retain a part of the purchase money, for which they then gave their bonds and mortgages, until such incumbrances were paid off; and that if the grantors did not pay off the incumbrances, Alleman and Lucas might discharge them out of the moneys thus retained. Under that agreement, it became the duty of Johnson to apply that amount to the satisfaction of the incumbrance in question, if he received it from them while he held such incumbrance as trustee. What became of the Lucas mortgage does not appear; nor is there any evidence to show whether it was paid before or after Johnson became the trustee. The Alleman mortgage appears, however, to have been assigned to him, by Chapin and Gage, previous to his appointment as trustee. And by an endorsement on that mortgage, it appears that interest had been paid thereon up to the 20th of March, 1834, together with $175 of the principal. And as the last payment of the principal did not become due until after Johnson was appointed trustee, and as satisfaction was acknowledged by Johnson in September, 1835, about ten months after his appointment as trustee, I think it may fairly be inferred, that he received the residue of that mortgage, while he was the holder of the- bond and mortgage in question; and the money thus received by him ought to have been endorsed thereon, as a payment thereof pro tanto. But that would only go to discharge the incumbrance in part, and would still leave about half of the incumbrance unsatisfied; unless a similar sum was received upon the mortgage of Lucas.

The testimony of McCarty, however, as to the subsequent transactions with him, satisfies me,beyond all reasonable doubt, that the bond and mortgage in question, ought to be considered as fully paid to Johnson and satisfied, while- he held the same as. trustee. At the time of the several conveyances, to McCarty, Johnson was the holder of this mortgage as trustee, and was also the owner of the equity of redemption in. that part of the mortgaged, premises which, as between him and Alleman and Lucas, was primarily liable for the payment of the mortgage debt. A conveyance of the. premises with warranty, therefore, and the actual receipt of the purchase money to the extent of this-mortgage; would operate as a payment and extinguishment of the mortgage, in equity as well as at law; unless the purchase money thus received was misapplied by the trustee with the knowledge and consent of McCarty. For, it was the duty of the trustee, in that case, to retain out of the purchase money paid, for the entire fee, the amount of the mortgage which he held as trustee; and only so much thereof as was the proceeds of the equity of redemption, .could be applied to his' own use, without rendering him guilty of a breach of trust. And the law will not presume an intended breach of trust, on the one hand, or an intention to defraud the purchaser, on the other, by leay-ing the mortgage unsatisfied. The receipt of the money, by the trustee, under such circumstances, operated as an actual payment of the mortgage. And if the trustee misapplied the money afterwards, it was a misapplication of money which he held as trustee; and such misapplication would not, either at law or in equity, revive the mortgage, as against the purchaser or those claiming under him. The legal effect of the transaction, in this case, would be the same, if the trustee took securities for the purchase money on such sale, and afterwards received the money on such securities, to the extent of the mortgage, during the time he was trustee. The testimony of McCarty, in connection with that of Birdsall, clearly establishes this state of facts. McCarty proves that an amount far exceeding what was due on this mortgagé, was paid by him to Johnson, on account of the purchase money, while the latter was the holder of that mortgage as trustee. The mortgage must be considered as paid, so far as the interests of the appellants are concerned, who claim through Johnson’s covenants of warranty. ■

The decree of the vice chancellor must therefore be reversed, with costs, so far as concerns the appellants, and the several parcels of the mortgaged premises to which they have derived title under conveyances from McCarty, as stated in their answer. And the bill, as to them, must be dismissed with costs.