text:
    *Clark and others v. Fisher and others.
    August 25th.
    A person, to be capable of making a will, must be possessed of a sound and disposing mind and memory, so as to be able to make a testamentary disposition of his property with sense and judgment, in reference to the situation and amount of such property and the relative claims of the different persons who are or might be the objects of his bounty.
    Where the derangement or loss of the powers of mind some time previous to the making of the will is established, it devolves upon the party who seeks to maintain the will to show that such incapacity had ceased at the time it was executed.
    In forming an opinion of the state of the testator’s mind, it is proper to take into consideration the reasonableness of the will in reference to the amount of his property and the situation of his relatives.
    Whenever a person, whose mind is imbecile from disease, is induced by fraud, imposition, of undue influence, to make a testamentary disposition of his property different from what he would have done in the full possession of his faculties, the same will be set aside.
    Surrogates, having exclusive jurisdiction in relation to the proof of wills of personal property, must determine all questions of fraud, imposition and undue influence in procuring such wills, as well as the general question of the capacity of the testator.
    This was an appeal from the sentence and decree of the surrogate of Kings county. A statement of the case is contained in the opinion of the Chancellor.

      Wm. Kent and D. B. Ogden, for the appellants:
    The testator had not sufficient capacity to make a will. His mind was so enfeebled as to render him an easy prey to fraud and imposition. The possession of memory alone is not sufficient to capacitate a person to dispose of his property by will; he must know all his relations, their claims upon his bounty, and the extent of his property, so as to be able to make a judicious disposition. He must have a sound and disposing mind and memory, so as to be able to make a will with understanding and reason. (Swinb. on Wills, part 2, sec. 3; Moore’s R. 759; Marquis of Winchester's case, part 6, vol. 3, Coke’s R. 23, a.) More mind is required in making a testament than a contract. (2 Evans’ ed. of Pothier on Oblig. 539.) The testator presents a case of a broken down, enfeebled, expiring intellect; of a mind reduced to second childhood, with some little glimmering of reason remaining. After the mind is gone in old men, memory often remains; and garrulity is *even evidence of the departure of reason. It is incumbent upon the respondents to show a capacity in the testator to make a will at the time he executed the one in dispute; it having been established that he was incapable at a time previous thereto. (1 Phil. R. 535, 567, 570; 4 Cowen’s R. 287.) There was in. this case a conspiracy to obtain the will from the testator. He was induced to make it through the undue influence of his wife. A palpable fraud was committed in imposing upon him the beggar girl as his niece. The rule applies, falsus in uno, falsus in omnibus.

      D. S. Jones and P. A. Jay, for the respondents:
    Only collateral relatives contest this will. The wife of the testator has no interest in sustaining it. Her share of the estate will be increased by setting it aside. The disease of the testator only affected his body and not his mind. The evidence as to his capacity is mere matter of opinion. The court should not rely upon the opinions of the witnesses, but upon the facts upon which they found their opinions. Opinions, in a case like this, always vary. The difference arises from the different opportunities the witnesses have of seeing the testator, and from their different abilities. (Kinlyside v. Harrison, 2 Phil. R. 454.) The same mind is required in making contracts as testaments. (1 Shep. Touch. 403.)
   The Chancellor. :—This cause comes before this court on an appeal from a sentence and decree of the surrogate of Kings county, allowing and admitting to probate an instrument propounded by the respondents as the last will and testament of John Fisher, late of Brooklyn, deceased. The two Mrs. Clarkes are the nieces and next of kin of the deceased, who left a large real and personal estate. He died in May or June, 1827, being then about 80 years of age. About four years previous to his death, and about one year before the death of his first wife, he had an apoplectic fit, which terminated in paralysis, and continued until his death. He was confined to his bed for the four years, but was able to ride out a few times, being helped into the carriage. His speech was much impaired, but he was at times able to make himself understood by those who were well acquainted with him. In the fall of *1824, he was married to Diana Rapelje, the respondent, a sister of his first wife. The will in controversy was executed in May, 1827, shortly before his death; and he thereby gave all his property, real and personal, to his wife, in fee; but afterwards, in the same will, he gave one-fourth of his property, after the death of his wife, to a supposed daughter of his deceased brother, Lawrence Fisher, and the annual interest thereon for her education, and the remaining three-fourths to the heirs of Eleanor Clarke, Maria Clarke, Ann Smith and Isaac Rapelje. The respondents were made executrix and executor, with a general power to sell. Lawrence Fisher, in fact, died without issue; and the pretended niece was a child which his widow had stolen from the alms house, and claimed as her own.

The appellants insist that the testator was incompetent to make a will, or if not wholly incompetent, that the same was procured by fraud and imposition, and by taking an undue advantage of his situation. Between fifty and sixty witnesses were examined to these questions by the different parties before the surrogate.

The general principles of law in relation to the capacity of a person to make a will, are well understood. He must be of sound and disposing mind and memory, so as to be capable of making a testamentary disposition of his property with sense and judgment, in reference to the situation and amount of such property and to the relative claims of the different persons who are or might be the objects of his bounty. (Marquis of Winchester’s case, 6 Coke’s R. 23. Den v. Johnson, 2 South. Rep. 458.) But the great difficulty which generally exists, is in applying these principles to the testimony in each particular case. The evidence of capacity on which the court or jury are to decide in most contested cases, consists in the opinions of witnesses, sometimes with, but frequently without, the particular facts on which such opinions are founded. Such testimony is always the most unsatisfactory, and the least to be depended on. Our opinions are much more frequently founded on prejudices, or biased by our feelings, than we are aware of. Hence it frequently happens that two witnesses, equally honest and intelligent, *form opinions directly opposite to each other, founded on the same state of facts. It is for this reason that the opinions of witnesses are never received as evidence where all the facts on which such opinions are founded can be ascertained and made intelligible to the court or jury. And where the opinions of witnesses from the necessity of the case are received as evidence, the weight of testimony will not depend so much upon the number as upon the intelligence of the witnesses, and their capacity to form correct opinions, their means of information, the unprejudiced state of their minds, and the nature of the facts testified to, in support of those opinions.

Testing the case before me by these principles, it is satisfactorily established that at the commencement of the disease of John Fisher, there was a general derangement or destruction of the powers of his mind, so as wholly to incapacitate him to make a will. This is proved by the testimony of his attending physicians; of Robert Lowther, who was with him eleven months in the capacity of nurse; of Bishop Onderdonk, who made him pastoral visits for the purpose of administering spiritual consolation; of Gen. Bogardus, who went to see him several times on business; and of many others who were in habits of intimacy with him before his sickness and who continued to visit him until they supposed his disease incurable and his mind irretrievably gone. In opposition to this, a few persons, of very limited capacity to judge on such matters, testify that he was as capable of doing business during the whole of his sickness as he ever was before.

It being established that there was a general derangement or loss of the powers of mind for a very considerable period some time previous to the making of the will, the weight of proof was thrown upon the respondents to establish the fact that such incapacity had ceased at the time the will was executed. (Kinlock v. Palmer, 1 Const. R. S. C. 225. Lessee of Hoge v. Fisher, 1 Peters’ C. C. R. 163. Attorney-General v. Parnther, 3 Bro. Ch. R. 443. Swinburne on Wills, part 2, sec. 3. Turner v. Turner, 1 Little’s R. 102. Jackson v. Van Duezen, 5 John R. 159. Case of Cochrane’s will. 1 Munroe’s R. 263.)

* After the first year of his disease, very few of those persons who had known and associated with him previous to Ms sickness, and who alone were capable of comparing his mind in its diseased state with what it was before, visited Ms house. Among the witnesses who did see him during the last three years of Ms life there is a very great contrariety of opinion as to the situation of Ms mind, and even as to the state of his corporeal faculties. I think the weight of testimony is that in the summer of 1826 his mental and corporeal powers were in a more vigorous state than they had been during the first two years of his sickness. The testimony of Dr. Watts, in particular, shows that he could then converse intelligibly; and certainly he exhibited considerable strength of memory in relation to the papers of Lord Sterling. That circumstance, though strongly in favor of Ms mental capacity at that time, is not conclusive. It frequently happens that some particular circumstance has made a strong impression upon the mind of an individual, and has been thought over so often that the memory on that subject becomes in a measure mechanical; and whenever one link in the chain of circumstances is touched, the whole subject again passes through the mind. Hence it sometimes happens in second cMldhood, when all traces of recent events have become completely effaced from the memory, the bare mention of some occurrence wMch made a strong impression upon the mind of the individual in early life, will bring the whole subject distinctly to his recollection; and he will be able to detail every circumstance with the most minute exactness. I am, therefore, not perfectly satisfied, considering the nature of the disease under wMch Fisher was laboring, that even at that time he was of sufficient capacity to dispose of Ms property by will with sense and judgment.

Whatever may have been his situation in the summer of 1826, there are still stronger reasons to doubt his capacity in May, 1827, when the will was executed. He was not then in a situation to make himself understood by the person who drew it, even in reply to questions put directly to him. The will was drawn under the direction of the wife, the principal devisee; and although she professed to *converse with and to understand him, the scrivener had no means of knowing whether he assented to her propositions or not, or whether he understood what was said to him, or what business was transacting. If his mind had been once partially restored, there is reason to believe he was then Suffering from another attack of the same disorder, and which carried him off within a few days afterwards. Besides, the will itself is unreasonable on its face, when taken in connection with the amount of his property and the situation of his relatives; and this is always proper evidence to be taken into consideration in judging of the state of the testator’s mind. (Patterson v. Patterson, 6 Serg. & Rawle’s Rep. 56.)

But if it were doubtful whether the testator’s mind was so far impaired as to render him incapable of making a valid will, there cannot be á question that it was so much weakened, and rendered so imbecile by disease, as to make him an easy dupe to the arts and intrigues of those by whom he was surrounded. Whenever a person in that situation is induced by fraud, imposition, or undue influence to make á testamentary disposition of his property differently from what he would in the full possession of his faculties, the same will be set aside, Upon the same principle that a court of chancery sets aside á conveyance of property obtained under' like circumstances.

Surrogates having exclusive jurisdiction in relation to the proof of wills of personal property, they must of necessity determine all questions of fraud, imposition, and undue influence in procuring such wills, as well as the general question relative to the capacity of the testator. (Kerrich v. Bransby, 3 Bro. P. C. 358; Bennet v. Vade, 2 Atk. R. 324; Archer v. Mosse, 2 Vern. 8; McDowell v. Peyton, 2 Desaus, 313; 1 Roberts on Wills, 30.)

In the case of the will of Edward Campion, a court of delegates, consisting of some of the most distinguished judges and civilians in England, set the will aside on the ground that undue influence had been exercised over the mind of the testator by his housekeeper and physician; and Lord Rosslyn, being satisfied with their decision, reported against granting a commission of review. (Ex parte Fearon, 5 Ves. 633.) *In Hacker v. Newbern, (Styles’ R. 427,) Rolle, C. J., held, that a will executed by a man in his last sickness, by the over importunity of his wife and for the sake of quiet, was not valid. In Dietrick v. Deitrick, (5 Serg. & Rawle’s R. 207,) on an issue to try the validity of a will, the person attempting to impeach it on the ground of imbecility and imposition, was permitted to give evidence of the false representations of the principal devisee, as to the character of the wife of another who was equally entitled to the testator’s bounty, by reason of which he was disinherited. The same principle is recognized in Nussear v. Arnold, (13 Serg. & Rawle’s R. 323.) And in Patterson v. Patterson, (6 Idem. 56,) where it was attempted to impeach a wifl on the ground of imbecility of mind, connected with fraudulent practices by the devisees, the party was permitted to give in evidence the situation of the testator’s family connections and property, for the purpose of showing the unreasonableness and injustice of the provisions of the will.

Applying the principles of these cases, and the doctrine held by the Court of Errors in Whelan v. Whelan, (3 Cow. R. 537,) to the circumstances disclosed by the testimony before the surrogate, this will must be set aside, as unduly obtained by taking advantage of the situation and infirmities of this bed-rid, paralytic old man, by which a different disposition was made of his property from that which would otherwise have taken place. The testimony of Robert Lowther shows, that immediately after the death of the first Mrs. Fisher, her relations commenced a system of intrigue and management for the purpose of getting the control of the person and property of the testator. For this purpose his niece, who had been in the habit of visiting him previously, was virtually excluded from the house; and means were taken to prejudice the testator against her, by representing in his presence and hearing, that her visits and attentions to him were mercenary. They urged him to get married, as a means of restoring him to health; and the sister of the first Mrs. Fisher was placed about him, and recommended as a suitable person for his wife. In the course of a few months, he was induced to consent to the ceremony of a marriage, which in his situation *never was or could be consummated. Having thus secured the control of his person, a wife was secured for the lunatic brother, and he was importuned to get the testator to make a will in their favor; and after the death of that brother, his widow procured from the alms house a child which was imposed upon the testator as his niece. Although there is no direct evidence of the fact, yet from the intimacy which had existed between the widow of Lawrence Fisher and the respondent Diana Fisher, there is reason to suspect the latter was not ignorant of the deception which was practiced-The testator was then induced to execute this will, giving one-fourth of his property to the supposititious niece, and the residue to his wife for life, with power to her and the co-executor to sell and dispose thereof as they pleased, and what was left after her death was to be equally divided among the children of his nieces, and the descendants of two of her own relations; thus, without any apparent cause, excluding the two Mrs. Clarkes, who were his only blood relations, from any share in his property.

On either of the grounds taken by the appellant’s counsel, I am satisfied the sentence and decree of the surrogate, allowing the instrument propounded as the last will and testament of John Fisher and admitting the same to pro' bate, was erroneous; and the same must be reversed.

       Lord Kenyon, in addressing the jury in Greenway v. Greenway, 3 Curtiss, said—“ I take it a mind and memory competent to dispose of his (the testator’s) property, when it is a little explained may stand thus: having that degree of recollection about him that would enable him to look about the property he had to dispose of, and the persons to whom he wished to dispose of it. If he had the power of summoning up his mind so as to know what his property was, and who those persons were that then were the objects of his bounty, then he was competent to make his will.” As to the standard of mental capacity requisite, see Verplanck, Senator, in Stewart v. Lispenard, 26 Wen. 255, 306, 311, 312; Blanchard v. Nestle, 3 Denio, 37; Comstock v. Hadlyme, 8 Conn. 265; Kinne v. Kinne, 9 Conn. 105; Kachline v. Clark, 4 Wharton, 320.
      To revoke a will requires the same capacity as to make one. Smith v. Wait, 4 Barb. S. C. R. 28. Exposition of the doctrme of monomama and partial insanity, as applied to wills, see Waring v. Waring, 6 Moore, 341, S. C. 6, Jur. 947.


source: Caselaw Access Project

license: Public Domain

text:
    Fulton and others v. Rosevelt.
    August 25th.
    Where the person who prosecutes a suit in the name of an infant, as his next friend, is insolvent, he will be compelled, on the application of the defendant, to give security for costs.
    A suit may be commenced in the name of an infant without his knowledge or consent. The court, however, on a proper application, will refer it to a master to ascertain whether such suit is for the benefit of the infant and if the master reports that it is not for his benefit, will stay the proceedings.
    A suit cannot be brought in the name of a feme covert without her consent; and when brought with her consent, the prochien amy may be changed on her application, the person substituted giving his security for the costs already accrued.
    *It seems an infant, who has no means of indemnifying a responsible person for costs, will be permitted to sue by his next friend in forma pauperis. The court however will, in the first place, see there is probable cause for the proceeding, and will appoint a proper person as procMen amy.

    On an affidavit that the procMen amy was insolvent, and that the suit had been commenced by him without the knowledge of the infant, a motion was made on the part of the defendant to change the procMen amy, or that all proceedings be stayed until security for costs was given.

      J. Rosevelt, for the motion:
    If the defendant is entitled to costs he may have an attachment for them against the prochien amy or guardian; (1 Str. 548; Barnes, 128;) or, it seems, he may sue out execution, even a ca. sa. against the infant himself, whether he have sued by procMen amy or not. (2 Str. 1217; 13 East, 6.) If the prochien amy or guardian be not responsible, the court will order the appointment of another person in his place. (2 Str. 708.) A prochien amy must be a person of substance, because he is liable for costs. (1 Atk. 570; 3 Bac. Abr. 619; Wyatt, 223.) In the case in 2 P. Wms. 297, the motion was to stay proceedings until security was given, or another prochien amy named, which motion was refused. But the application there was not made until the defendant had answered, and the plaintiff was also a feme covert.

      M. C. Patterson, for the complainants:
    A bankrupt complainant cannot be compelled to give security for costs. The court will not remove a prochien amy who is in indigent circumstances. (Squirrel v. Squirrel, 2 Dickins, 765; 1 Ves. jun. 409; 2 Peere Wms. 297; 1 Str. 708.) A bill may be filed by a prochien amy, without the consent of the infant.

       Leave to defend will not be given, until a guardian ad litem is appointed. Matter of Byrne, 1 Edw. 41.

   The Chancellor :—It is not necessary for the person prosecuting a suit in the name of infants, to show that the same was commenced with their knowledge or consent. Any person may bring a suit in their name, as their next friend, because he does it at his peril. (Andrews v. Cadock, Prec. in Chan. 376.) The only check upon this general license *is, that on a proper application the court will refer it to a master to inquire whether such suit is for the benefit of the infants; and if the master reports that it is not for their benefit, or that it is not for their interest that it should be prosecuted by the particular person who has instituted the suit, the court will order the proceedings to be stayed. (Dacosta v. Dacosta, 3 Peere Wms. 140; Sullivan v. Sullivan, 2 Mer. Rep. 40.) In this respect it differs from a suit brought in the name of a feme covert. Such a suit cannot be brought without her consent; and when brought with her consent, the prochien amy may be changed on her application, the person substituted giving security for the costs already accrued. (Lady Lawley v. Halpen, Bunb. Rep. 310.)

The important question in this case is, whether a person who is insolvent and wholly irresponsible shall be permitted to prosecute in the name of infants without giving security for the costs to which the defendant may be subjected. In the case of Squirrel v. Squirrel, (Dicken’s Rep. 765, 2 Peere Wms. 297 note, S. C.,) cited by the complainant’s counsel, Lord Hardwicke refused to stay the proceedings in a suit by a feme covert against her husband, on an affidavit that the prochien amy was insolvent. But in that case, the application was not made till after the answer of the defendant was put in; which, of itself, was a sufficient answer to the application for security for costs. (1 John. Ch. Rep. 202; 3 John. Ch. Rep. 520.) And Lord Thurlow afterwards intimated that an infant might prosecute by a next friend who was insolvent. (Anonymous, 1 Ves. jun. 409.) Neither of these cases are binding as authority upon this court. On the contrary, all the cases before the revolution hold a different language. In the case of Wale v. Salter, (Moseley’s Rep. 47,) the Master of the Rolls required a prochien amy who was insolvent to give security for costs; and it was there said a similar order had been made the preceding day by the Lord Chancellor. The same principle was afterwards recognized by him in another case, although he refused to require security merely because the next friend was privileged from arrest. (Anonymous, Mosely’s Rep. 86.) And in a subsequent case, at the roll, it was held that *it was not necessary the next friend should be a relation, only a person of substance, because he was liable for costs. (Anonymous, 1 Atk. Rep. 570.)

Perhaps, in a proper case, on an application to the court, an infant who had no means to indemnify a responsible person for costs, might be permitted to sue by his next friend, in forma pauperis. I see no objection to such a proceeding, though Lord Eldon intimated it could not be done. But in such a case the court would, in the first place, see that there was probable cause for the proceeding, and appoint a proper person to prosecute the suit as prochien amy.

In this case, the next friend must give security to the defendant to answer the costs of the suit, in such sum and with such sureties as shall be approved of by one of the masters of this court, within thirty days after notice of the order, or the bill must be dismissed; and in the meantime, all proceedings therein must be stayed until such security is filed.


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    De La Vergne v. Evertson and others.
    August 29th.
    A payment on a judgment discharges the Ken on the land to the extent of the payment; and the Ken cannot be restored by any subsequent agreement between the parties.
    As between different creditors, equality is equity.
    And where there are several judgment creditors, and the land is sold under a prior mortgage, the holder of the eldest judgment, as against the others, has no greater lien upon the surplus moneys than he had upon the equity of redemption before the sale.
    If the judgment creditors are equitably entitled to interest as against the debtor, but have no right to collect on their executions against the land, the principal of their judgments must be first paid out of the fund according to their priority, and if any thing remains, it can be applied to the payment of the interest on the several judgments ratably.
    No decree will be made for the distribution of a fund in court, unless all the parties interested in the fund are brought before the court.
    Where a bill is unnecessarily filed without the direction of the court, in a case where the relief prayed for might have been obtained by petition, the complainant will not be entitled to costs.
    So where the defendant in his answer sets up an unfounded claim, costs will in most cases be denied him.
    *The bill in this cause was filed by one of the defendants to suit of foreclosure, against a co-defendant and others, claiming a part of the surplus moneys arising from a sale of the mortgaged premises. It was heard on exceptions to the report of a master.

      J. Brush, for complainant.

      J. Tallmadge, for defendants.
   The Chancellor :—Three hundred dollars having been paid by John De La Vergne on the judgment to Tabor, the lien on the land was discharged to that extent, and could not be restored by any subsequent agreement between the parties. (Marvin v. Vedder, 5 Cowen, 671.) The master has properly deducted that sum from the judgment hen upon the land. The assignee of the judgment can have no better equity as against third persons than Tabor had before the assignment.

Previous to the act of the 13th April, 1813, the plaintiff could not levy interest on a judgment, except it was on a penalty, and the amount ordered to be levied, including the interest, was within the penal sum. In Watson v. Fuller, (6 John. R. 283,) the Supreme Court decided, even where a judgment was reduced by payments, that the plaintiff could not levy interest, although within the nominal amount of the original judgment. And in Mason v. Sudam, (2 John. Ch. Rep. 172,) Chancellor Kent held that a judgment recovered previous to April, 1813, was not a lien on mortgaged premises for the interest, as it could not be levied under an execution.

As between different creditors, equality is equity; and if there are several judgment creditors, and the land is sold under a prior mortgage, the holder of the first judgment, as against the others, has no greater lien upon the surplus moneys than he had upon the equity of redemption before the sale. If the judgment creditors are equitably entitled to interest as against the debtor, but have no right to levy it on their executions against the land, the principal of their judgments must be paid out of the fund according to their order of priority; then if any thing remains, it may be applied to the payment of interest on the several judgments ratably. The *master was therefore right in not casting interest on the Tabor judgment previous to the sale under the mortgage.

The complainant has unnecessarily filed a bill in this cause without the direction of the court, when he might have settled these questions by a petition in the original suit for an equitable distribution of the surplus moneys: he is, therefore, not entitled to costs. Evertson having set up an unfounded claim to the whole amount of the Tabor judgment and the interest, is equally in fault.

As the assignee of the Schuyler judgment is not before the court, no decree can be made in this cause for the distribution of the fund. The bill ought therefore to be dismissed without prejudice to the rights of the parties to petition in the original suit, for an equitable distribution of the surplus. But as the parties have expressed a wish that their rights might be decided in this suit as between themselves, there must be a decree confirming the report of the master and declaring the rights of the parties on the principles above stated, and without prejudice to the rights of the owner of the Schuyler judgment. And leaving them to apply by petition for the surplus moneys, agreeably to their rights as thus declared, when the claim of the other party in interest can be examined and settled.


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    Rogers and others v. Rogers and others.
    September 1st.
    A suit in a state court will not be removed into the Circuit Court of the TT. S., unless the latter court has jurisdiction of the subject matter of the suit, and has the power of doing substantial justice between the parties.
    Where N. R. commenced suits at law in the Superior Court of the city of New York, against H. R., and H. R. filed a bill in Chancery to obtain an injunction restraining the proceedings at law, it was held, that the suit in Chancery could not be removed into the Circuit Court of the United States, inasmuch as such a removal would leave H. R. without remedy; the Circuit Court of the United States having no power to restrain the proceedings at law.
    A citizen of one state becomes a citizen of any other state, when he makes such other state the place of his actual residence.
    The defendants, who were the executors of Fitch Rogers, late of the state of Connecticut, deceased, commenced suits at law in the Superior Court of the city of New-York, against the complainants, on notes given to the testator: which suits *are still pending. The complainants set up an equitable defence to those suits, and the bill in this cause was filed for the purpose of obtaining an injunction to stay the proceedings at law. The defendants in this suit presented their petition stating that they were all citizens of the state of Connecticut; and prayed for the removal of this cause into the Circuit Court of the United States. The application was opposed on an affidavit that one of the executors was a resident citizen of this state, and he had a store, and was doing business as a flour merchant in the city of New York, and that he actually resided there at the commencement of this suit, although his family resided in Connecticut.

      R. Sedgwick, for the petitioners.

      J. Duer, for the complainant.
   The Chancellor:—From the facts disclosed in the petition and opposing affidavit, it is doubtful whether the defendant Holley was not a citizen of the same state with the complainants when this suit was commenced. Under the constitution of the United States, a citizen of any one state becomes a citizen of any other in which he resides. The question of residence or domicil is frequently one of great doubt and difficulty, depending on a variety of facts and circumstances; and if the removal of this cause depended on that question alone, it might be necessary to have a reference, for the purpose of ascertaining whether Holley was a resident of New York or not, at the time the subpoena in this cause was served. But on examination, I am satisfied the other objection made by the complainants’ counsel is unanswerable. Congress never intended to authorize the defendant to remove any suit or proceeding before a state court, unless the Circuit Court of the United States had jurisdiction of the subject matter of such suit, and had the power to do substantial justice between the parties. In this case, the foundation of the suit is the inequitable prosecution of the suits at law against the complainants in the state court; and the relief sought is a perpetual injunction to stay those proceedings. By the commencement of the suits at law, the state courts have gained jurisdiction over the subject matter thereof, and *the courts of the United States have no jurisdiction to restrain the petitioners from proceeding therein, or to decree a perpetual injunction, so as to prevent them from collecting the judgments which may be obtained in those suits. The effect of a removal of this cause, therefore, would be to leave the complainants without remedy.

Although this suit is in form an original proceeding, yet in fact it is only an equitable defence to the suits brought by the executors in the state court. This principle is recognized by Chief Justice Marshall in Sims v. Guthrie, (9 Cranch, 25.) And in the case of William Cobbett, (3 Dallas, 467,) the Supreme Court of Pennsylvania held that an action of debt on a recognizance for good behavior, although within the letter of the law of the United States authorizing the removal of causes, was not within its spirit and intent.

If the petitioners were not willing to trust their rights to the decision of the tribunals of this state, they should have brought their suits in the United States Court, and the complainants would then have been compelled to resort to the same tribunal for the purpose of interposing their equitable defence. Having resorted to the state court for justice, they must be content to take such measure of justice as the law and equity courts of this state mete out to them. The petition must be dismissed with costs.


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    Woolcocks v. Hart
    Sept. 4th.
    Where a creditor has a lien upon two funds for the payment of his debt, Chancery will not compel him first to exhaust the fund which a junior creditor cannot reach, if the senior creditor will thereby be injured, or if ho offers to substitute the junior creditor in Ms place on being paid the amount of Ms debt.
    In this case the complainant was a judgment and execution creditor of James Dreamer. The defendant had also an older judgment and execution against the same person, and Dreamer had not sufficient property in this state to satisfy both. The defendant had also an assignment of certain real and personal property in New Jersey as collateral security for *his debt, which in his answer, he alleged was subject to a prior mortgage, and that the title thereto was doubtful. The complainant applied to him to delay a sale under his execution, and apply the Jersey security in the first place in satisfaction of his debt. This was declined by the defendant, but he offered to assign his judgment and all the collateral security which he held over to the complainant, if he would pay the amount due to him on the judgment, which amount he offered to warrant to be due. The complainant declined this offer, and filed his bill, and obtained an injunction.
    The defendant now moved to dissolve the injunction.

      C. F. Grim, for the complainant,
    contended, that where a creditor has two funds as a security for one debt, equity will compel him to resort first to that fund on which a junior creditor has no lien; that this was not a mere right of redemption and substitution belonging to the junior creditor, but a right of compelling the senior creditor first to exhaust the fund which the junior creditor could not reach; that this being the rule in equity, the complainant was not bound to pay to the defendant the amount of his judgment against Dreamer, and to take an assignment of that judgment, and also of the collateral security the defendant held upon the property in New Jersey. The counsel cited The York and Jersey Steamboat and Ferry Company v. The Associates of the Jersey Company, (1 Hop. Rep. 460;) Evertson v. Booth, (19 John. Rep. 486;) Hays v. Ward, (4 John. Ch. Rep. 123.)

      J. Anthon, for the defendant:
    Where a creditor has a lien upon two funds for the payment of his debt, Chancery will not, upon the application of a junior creditor who has a lien upon one of the funds, compel the senior creditor first to exhaust the fund which the junior creditor cannot reach, if the senior creditor will be injured thereby, or if he offers to substitute the junior creditor in his place, on being paid the amount of his debt. When the sufficiency of the fund to which the junior creditor cannot resort is doubtful, or the senior creditor refuses to run the hazard of obtaining satisfaction of his debt out of that fund, equity will not take from *him any part of his security until his debt was paid. These principles are fully settled in Evertson v. Booth, (19 John. Rep. 492,) Brinckerhoff v. Marvin, (5 John. Ch. Rep. 328,) and they apply to the present case. Here the fund which the junior creditor cannot reach is doubtful; the principal creditor declines to resort to it; injustice would be done by compelling him to do so; and he offers to substitute the junior creditor in his place on being paid his debt; which offer is refused by the junior creditor.
   The Chancellor:—Under the circumstances of this case the defendant was not obliged to delay the collection of his debt until he could apply the proceeds of the Jersey property. The assignment of the Jersey property, although absolute on its face, was only a mortgage, and of course no good title can be given until a foreclosure of the equity of redemption against Dreamer. It would be inequitable for this court to compel him to submit to that delay when he offers to give to the complainant all the benefit which can be derived from that collateral security, by assigning it to him, together with the judgment, on receiving the amount which he is entitled to collect immediately by a sale on his execution.

The injunction must be dissolved, unless the complainant, within ten days after service of a copy of the order to be entered in this case, pays to the defendant or his solicitor the amount of the defendant’s execution and interest on the terms of the offer contained in the answer.


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    *Rogers and others v. Rogers and others.
    Sept. 8th.
    Where a party delayed a year and six months in applying to the Chancellor to correct a mistake made in drawing up a decree, leave to amend the decree was refused.
    The personal property of a testator must be first exhausted in the payment of his debts, before Ins real estate can be resorted to for that purpose. But where there is a specific lien on the land devised, as in case of a mortgage; or where the land is devised upon the condition of paying the debts: or where the debts are directed to be paid out of the estate devised; in these cases the real estate will be first resorted to, to discharge the debts. So where it is apparent from the will, the testator’s intention was, that the legacies should be paid entire and the debts discharged out of other funds, the court will carry such intention into effect.
    A judgment is not a specific lien upon the real estate of the debtor.
    Where the will of the testator contains no directions as to the payment of debts, chattels specifically bequeathed must be applied to the payment of a judgment against a testator before resort is had to the real estate devised.
    A trustee in the possession of land is required to account to the cestui que trust, not only for the rents and profits actually received, but also for the rents and profits which might have been received.
    The statement of this case is contained in 1 Hopkins’ Rep. 515, and in the opinion of the Chancellor.

      S. A. Foot, for the complainant:
    The complainant is not too late to move to amend the decree. The personal property specifically bequeathed must be first applied to satisfy the judgment in favor of the defendant Halsey Rodgers, before resort can be had to the lands specifically devised. (McKay v. Green, 3 John. Ch. R. 56; Livingston v. Livingston, 3 John. Ch. R. 148; Livingston v. Newkirk, 3 John. Ch. R. 312.) Halsey Rogers should be charged not only with the rents he did receive, but also with those he might have received. He also ought to pay the costs of this suit. Trustees, although only chargeable with negligence, are liable to the payment of costs. (Caffrey v. Darby, 6 Ves. 488.)

      J. Lansing, for the defendant Halsey Rogers:
    Whether personal property specifically bequeathed is to be resorted to for the payment of debts in preference to the real estate devised, depends upon the intention of the testator to be ascertained from the whole will. Personal property specifically *bequeathed, should only be required to contribute ratably with real estate specifically devised, in the payment of debts. (Toller, 419; 8 Com. Dig. 586, last ed. tit. Devise; Evelin v. Evelin, 2 Pr. Wms. 659; Hamilton v. Worley, 2 Ves. jun. 62; Philips v. Brydges, 3 Ves. 120; Waring v. Ward, 5 Ves. 670; Waring v. Ward, 7 Ves. 332; Smith v. Smith, 4 John. Ch. R. 449; 1 Brown Ch. Cas. 457.) The defendant being an executor and having acted with good faith, is entitled to costs out of the fund. (Moses v. Murgatroyd, 1 John. Ch. Rep. 473; Smith v. Smith, 4 John. Ch. Rep. 449.) A purchaser is exempt from costs where a sale is set aside for implied fraud. (4 John. Ch. Rep. 608; 1 John. Ch. Rep. 153; 3 Pr. Wms. 303; 3 Brown’s Ch. Cases, 25.)
   The Chancellor :—The application to amend the original decree in this cause, if it had been made in time, might have been allowed, provided there was an obvious omission or mere mistake in drawing up the decree. If the complainants ever had any remedy of this kind, which is somewhat doubtful as to part of their claim at least, it has been lost by delay. They were apprized of the supposed mistake in the decree, and their attention was particularly called to it, as early as March, 1827, when the objections were made to the draft of the master’s report. The same was again brought distinctly to their notice by the exceptions to the report, and the argument of those exceptions before the late Chancellor. At all events, they should have applied immediately after the decision of the Chancellor allowing those exceptions, on the express ground of the omission in the decree which is now alleged to have been by mistake. If it was an obvious mistake, the counsel who had then the management of the cause were bound to notice it, and have the mistake corrected. If it was not obviously wrong, and a clear mistake of the Chancellor or the counsel in drawing up the decree, it could only be corrected on a rehearing. The motion to amend must therefore be denied. Neither is the party entitled to the items rejected by the allowance of the exceptions, under the supposition that they are included in the equity reserved under the original decree. It was the intention of the Chancellor to have everything relating to that subject embraced in the account taken under the reference which was then made.

The question whether the personal property specifically bequeathed is to be applied in satisfaction of the judgment before the lands specifically devised can be resorted to, was reserved by that decree, and will now be disposed of. The personal property is the primary fund for the payment of the debts of the testator; and, as a general principle, must be exhausted before the lands can be resorted to for that purpose. It is not necessary to examine the question whether the executor was bound to apply the personal property specifically bequeathed to his mother, in satisfaction of the judgment, in preference to the lands which descended to the heirs generally, as the amount of both will be insufficient for that purpose.

Where there is a specific lien on the land devised, as in the case of a mortgage, or where the land is devised on condition of the payment of debts, or the debts are directed to be paid out of the estate devised, and where it appears from the will, that it was obviously the intention of the testator that the legacy should be received entire, and the debts paid out of other funds, the court will marshal the property in such manner as to carry that intention into effect. But a judgment is not a specific lien upon anything. It is a general lien upon all the property of the debtor ; but it cannot be enforced against the real estate until the sheriff has sold the personal property. If the testator specifically bequeaths his chattels to one person, and devises his real estate to another, without any directions as to which property shall be appropriated to satisfy an existing judgment against him, the personal property must first be applied to that object. In this case, the personal property specifically bequeathed must be applied towards the judgment debt, before any resort can be had to the lands which went to the devisees under the will; and interest must be cast upon the amount thereof as ascertained by the master. Unless Halsey Eogers elects to take the lands which descended to the heirs at law, at their value as settled by the master, they must be sold, and the *proceeds thereof also applied to diminish the amount reported due on the judgment. And on the confirmation of the report of that sale, the master must apportion the balance still remaining due, upon the several parcels of land specifically devised, in proportion to their present value, exclusive of improvements made thereon since the death of the testator. But as the widow of the testator received the life estate in the 75 acres devised to her, in lieu of her dower in the lands devised to the other persons named in the will, and has never claimed dower in those lands, the value of her life estate in the seventy-five acres at the' death of the testator, must be deducted from the present value of the lands devised to Halsey Rogers in making such apportionment.

After the master had ascertained the amount chargeable on the lands devised to Thomas Rogers, jun., and his children, he must state an account between the devisees thereof, and Halsey Rogers, crediting the latter with the amount thus ascertained to be chargeable thereon, and charging the value of the timber cut by him, or by his permission or directions, and the rents and profits received, or which might have been received by him; and charging interest as directed in the former decree. And on confirmation of the master’s report, if a balance is found due from Halsey Rogers, he must pay that balance into court for the benefit of those devisees; and if there is still a balance due to him, the land must be sold to satisfy that balance.

Upon the principles and grounds on which the original decree in this cause was made, the complainants are entitled to recover against the defendant, Halsey Rogers, their costs of this suit to be taxed, excepting the costs of their application to amend the original decree, and such other costs as have heretofore been disposed of in the progress of the suit.

As to the lands devised to the other defendants, after the amount of the judgment debt, which is justly chargeable on such pieces of land respectively, shall have been ascertained by the master, Halsey Rogers, or either of those devisees, must have liberty to go before the master and have an account taken in relation thereto, on the same principles *as those on which the account is directed to be taken in relation to the lands devised to Thomas Rogers, jun., and his children; to the end that on the coming in of the master’s separate report as to that account, a decree may be made for the sale of the land, or of such parts thereof as may be necessary to satisfy the amount of the judgment justly chargeable thereon. And the costs of talcing those accounts, and of the separate report, and all other questions and directions in relation to those lands, must be reserved until the coming in of that separate report.

        Hoes v. Van Hoesen, 1 Comst. 120; McCampbell v. McCampbell, 5 Litt. 95; Hull v. Hull, 2 McCord, Ch. 302; Stewart v. Ex'r of Carson, 1 Desaus. 500, 513. See further Am. Ch. Dig. by Waterman, tit. Assets.

        Haleys v. Williams, 1 Leigh, 140; Morris v. Mowatt, 2. Paige 586; Edmeston v. Lyde, post, 637.


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    Russell v. Austin.
    Sept. 10th.
    Where a mortgage has been executed by the husband and wife, she can only be endowed of the equity of redemption.
    Where the owner of the legal estates takes an assignment of an outstanding mortgage, there will be no merger of the mortgage unless the owner of the legal estate so intended when he purchased the mortgage.
    If the owner of the legal estate purchases in a mortgage executed by both husband and wife, -with the intention of protecting himself against the claim of dower to the extent of that incumbrance, the widow can only be endowed of the equity of redemption, and she is bound to contribute her share towards the payment of the mortgage.
    A defendant continues seized of his real estate sold under a judgment and execution, until the time for redemption expires; and where he dies before the time for redemption expires, bis widow will be entitled to arrears of dower.
    Arrears of dower against the purchaser of the premises in which dower id claimed, can only be recovered from the time of the purchase.
    Where there is an outstanding mortgage upon the premises, the arrears of dower will be computed by deducting from one-third of the rents and profits, over and above the necessary repairs, taxes, &c., one-third of the interest on the amount due on the mortgage at the time the defendant acquired title to the premises.
    If a widow makes application for her dower before she files her bill, and it is refused, she will be entitled to costs: but where she neglected to make such application, and in her bill alleged that an outstanding mortgage was paid off, and insisted upon her right to be endowed of the whole premises, *and claimed arrears previous to the purchase of the defendant, and the decree was against her upon all these points, no costs were allowed to either party.
    Oh the 20th of February, 1822, John Russell, the husband of the complainant, was seized in fee of a house and lot in the city of Albany; and being so seized, he, together with the complainant, executed a mortgage thereon to the commissioners of the city stock to secure the payment of $1,000 and interest. On the 26th of February, 1823, Spencer and Corning obtained a judgment against Russell in the Supreme Court, and issued an execution thereon; by virtue of which, the premises were sold to Corning on the 20th of December, 1823, for $600, and he received a certificate of such purchase from the sheriff. Russell died in possession of the premises on the 2d of December thereafter. At the expiration of the fifteen months allowed for redemption, Corning received a conveyance from the sheriff; and on the 28th of April, 1825, he also obtained an assignment of the bond and mortgage given to the commissioners of the city stock. The complainant continued in possession until the 1st of May, 1825, when Coming took possession. On the 4th of March, 1826, he conveyed the premises by quit claim deed to the defendant, and at the same time assigned to him the bond and mortgage. On the 29th of June, 1827, the complainant filed her bill in this court, claiming dower in the whole premises, and the arrears thereof from the time she left the possession. The defendant having answered the bill, the cause was brought to hearing on pleadings and proofs.

      J. King for complainant:
    The principal question is, whether the complainant is entitled to dower in the whole estate, or only in the equity of redemption. The assignment of the bond and mortgage by the commissioners of the city stock to Corning, he at the time having the legal title to the premises, operated as an extinguishment of the mortgage. It became merged in the legal estate. Wherever the legal and equitable estate unite in the same person, the latter becomes merged in the former. (James v. Morey, 2 Cowen’s Rep. 300; Tice v. Annin, 2 John. Ch. Rep. 125; *Gardner v. Astor, 3 John. Ch. Rep. 53; Mills v. Comstock, 5 John. Ch. Rep. 214; Starr v. Ellis, 6 John. Ch. Rep. 393; Swain v. Perine, 5 John. Ch. Rep. 482.) The complainant is entitled to the costs of this suit. The defendant in his answer denied the coverture alleged in the bill, and the complainant was compelled to take proof to establish it.

      J. I. Ostrander for the defendant:
    Whether by taking an assignment of an outstanding title there shall be a merger of such title in a prior estate, depends upon the intention of the person who takes the assignment. (Swain v. Perine, 5 John. Ch. Rep. 482; Tabele v. Tabele and others, 1 John. Ch. Rep. 45; Titus v. Neilson, 5 John. Ch. Rep. 452; Starr v. Ellis, 6 John. Ch. Rep. 393; James v. Johnson & Morey, 6 John. Ch. Rep. 417; James v. Morey, 2 Cowen’s Rep. 300; Jackson, ex dem Bruyn v. Dewitt, 6 Cowen’s Rep. 316; Coates v. Cheever, 1 Cowen’s Rep. 460.) In this case, Corning purchased the outstanding mortgage for the express purpose of protecting himself against the complainant’s right of dower. The complainant is not entitled to arrears of dower, her husband not having died seized, the equity of redemption having been sold upon an execution previous to his death. (1 Hop. R. 88.) The complainant is not entitled to costs, not having demanded her dower previous to the commencement of the suit. (Hale v. James, 6 John. Ch. Rep. 258; Swain v. Perine, 5 John. Ch. Rep. 482; Mit. Pl. 111.
   The Chancellor :—There is no doubt of the complainant’s right to be endowed of the premises which formerly belonged to her husband. She claims the one-third of the premises as her dower, and the arrears which have heretofore accrued, together with the costs of this suit; but the defendant insists she is only entitled to dower in the equity of redemption, and that she has no claim, either for the arrears or for costs.

In the case of Coates v. Cheever (1 Cowen’s R. 460,) the Supreme Court decided that the widow was entitled to dower, as well in that half of the premises against which Cheever had purchased an outstanding mortgage, as in the other half *on which there was no incumbrance. Although the court in that case speak of the incumbrance being merged in the estate which existed in Cheever at the time of the assignment, they could not have intended to overturn the doctrine, which had before been established in this court, that the widow must contribute her share towards paying off the incumbrance. That was an appeal from the decision of a surrogate, in a proceeding to ad-measure dower under the statute. The question of equitable contribution could not arise under those proceedings in a court of law. The only question before the court was, whether she was entitled to dower in that half of the property. And Cheever would still have been at liberty, notwithstanding that decision, to have applied to this court to compel contribution. There was no merger of the mortgage in this case by the assignment to Corning, or by the assignment from Corning to the defendant. In the case of James v. Morey, (2 Cowen’s Rep. 246,) the Court of Errors decided that the question of merger depended on the intention of the person who took the assignment of an outstanding title or estate, provided he had any interest in keeping up the incumbrance, and preventing a merger thereof in his prior estate. At the time of the assignment of the mortgage, in this case, the husband was dead and the wife’s right of dower in the premises had become complete. The mortgage was purchased in and assigned, instead of being paid off, under the advice of counsel; and for the avowed object of protecting the assignee against the claim of dower, to the extent of that incumbrance. There can, therefore, be no pretence that the mortgage interest was merged by the assignment to Corning, or by the sale and assignment to the defendant, when it was still kept on foot for the same purpose. The widow is only entitled to dower in the equity of redemption, and must contribute her share towards the payment of the mortgage.

In this case the husband died seized of the premises, and she is entitled to the arrears of her dower. Although the land had been sold by the sheriff, the time within which the husband was entitled to redeem had not expired at his death. The sale by the sheriff changed the general lien of *the judgment to a specific lien in favor of the purchaser, to the amount of the purchase-money and interest; and until the time of redemption expired, the estate of the purchaser was in the nature of a mortgage, and the seizin of the husband was not divested. But the widow is not entitled to recover against the defendant any arrears which accrued previous to his purchase of the premises. The arrears from that time must be ascertained by computing the amount due on the bond and mortgage at the time of the defendant’s purchase, and then deducting one-third of the interest on that amount from one-third of the rents and profits of the property, over and above the necessary repairs, taxes, &c. And this will also form an equitable rule by which the parties may settle an annuity to be paid to the complainant, hereafter, in lieu of her dower. If the parties cannot agree upon an annuity, the complainant will be entitled to be endowed of one entire third of the premises, on her keeping down one-third of the interest on the amount due as aforesaid, or by paying a sum in gross in proportion to the value of her life estate in the premises.

The question of costs in this as in other cases in Chancery, depends upon the exercise of the sound discretion of the court. If the complainant had made application to the defendant to assign her dower in the premises, or to pay her an equivalent therefor, and he had refused such reasonable request, I should have considered her entitled to the costs of this suit. But it appears by the answer that she never applied to him for her dower; and the first notice he had that she intended to make such a claim was by her bill, in which she alleged that the mortgage had been paid off, and insisted upon her right to be endowed of the whole premises, and claimed the arrears as well before as after his purchase. The defendant has been compelled to resist this unfounded claim, and I think it a proper case for each party to bear their own costs.


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    *Hammond and others v. Fuller and others.
    Sept. 11th.
    Where a party by erecting a dam raises a stream of water above its natural level, so as materially to injure mills above, on the same stream, a court of chancery will decree that the dam be lowered, and that the party erecting the same pay all the damages occasioned by raising the water above its natural level.
    This was a motion for an order requiring the defendants to remove a dam on the Paradox Creek, in the county of Essex, which the complainants alleged had been erected in such a manner as to violate the injunction issued in this cause. The facts sufficiently appear in the opinion of the Chancellor.

      J. King and G. V. Denniston, for the complainants.

      R. Weston, for the defendants,
    cited Platt v. Root, (15 John. R. 219;) Palmer v. Mulligan, (3 Caines’ R. 320;) Gardner v. Village of Newburgh, (2 John. Ch. R. 164;) Corporation of New York v. Mapes, (6 John. Ch. R. 46;) Reid v. Gifford, (4 John. Ch. R. 19;) Dickens’ Rep. 395.
   The Chancellor :—The contest between the parties on this motion is, whether the dam of the defendants raises the water of the Paradox Creek at and above the line between Pliny Mooers’ patent and lot No. 306 in the Paradox tract, • above the natural level of the stream, as it existed previous to the erection of the mills-of either of the parties; and in such manner as materially to injure the mills or mill privileges of the complainants. If it does so, the defendants must lower their dam, and pay to the complainants the damages which they have sustained by the violation of the injunction. It is impossible for the court, from the mass of contradictory affidavits presented, to determine this question with any reasonable prospect of doing justice between the parties. An issue must therefore be awarded to determine the question; and then both parties will have an opportunity to cross-examine the witnesses before the jury. But as the merits of the whole *suit depend upon the same question, and the parties are willing that one issue only should be awarded if an issue is necessary on this motion, there must be a decree entered directing an issue to be made up and tried at the circuit in the county of Essex, to determine this question; and the issue must be formed in such a manner that the jury which tries such issue, if the same is found for the complainants, may also assess the damages which they have sustained in consequence of such raising of the water at and above the line of lot No. 806, and that the damages be ascertained by the verdict up to the time of the trial of such issue. And all other proceedings on the motion which has been made to remove the dam of the defendants, and all further questions and directions in relation to the suit generally, must be reserved until after the trial of the said issue.


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    Chase v. Chase.
    Three promissoiy notes were given by W. to the wife of C. before, her marriage. After the marriage, C. left the notes with B. for collection, and in Sept., 1827, C. assigned the notes to G. The latter afterwards ascertained that a few days before the assignment, one H. as the agent of the wife, obtained the notes from B. and delivered them to W. and received new notes in his own name. G. then commenced an action of trover in the name of C. against H. for the notes so delivered to W. The wife filed a bill against C., her husband, claiming the notes, and obtaining an injunction to stay the proceedings at law against H. It was held, that Gr. had no right to bring an action of trover in the name of C., but his remedy, if any, was either by an action at law in the name of C. and wife against W. to recover the amount of the original notes, or by an action of trover in his own name against H. for a conversion subsequent to the assignment, or by a bill in equity against all the parties, to obtain the possession or proceeds of the new notes.
    The assignee of a chose in action may sue at law in the name of the assignor, and to a bill for an injunction to stay the suit at law, the assignee must be made a party, or the court will permit him to proceed in the name of the assignor.
    If promissory notes are assigned before a conversion, the assignee alone has a right to maintain an action of trover.
    Where the notes were converted before the assignment, the simple assignment of the notes will not authorize the assignee to prosecute in the name of the assignor for the previous tort.
    *This was a motion founded upon the petition of William C. Gardner for a dissolution or modification of the injunction issued in this cause. The petition stated, that in January, 1826, three promissory notes were given by Job Whitney to Sophia Bacon, who afterwards married the defendant in this cause; that the defendant left the notes with B. Bradford for collection; that in September, 1827, Chase sold and assigned the notes to the petitioner; that the petitioner afterwards ascertained that a few days before the assignment, Healy, acting as the agent of Mrs. Chase, applied to Bradford and obtained the notes, and delivered them up to Whitney, and received new notes in his own name; that the petitioner thereupon commenced an action of trover in the name of Alvah Chase, against Healy, for the notes so given up; that the wife of Chase has filed a bill against her husband in this court, claiming the notes, and has obtained an injunction to stay the proceedings at law against Healy, but has not made the petitioner a party thereto.
   The Chancellor :—If the petitioner had shown any authority to prosecute the action of trover against Healy, in the name of Chase, the injunction would not be permitted to affect Ms rights, without making him a party to the hill. (Nugent v. Smith, Moseley’s R. 354.) The assignee of a chose in action may sue at law in the name of the assignor ; and in such cases, the assignee must be made a party to a bill for an injunction to stay the suit at law, or the court will permit Mm to proceed in the name of the assignor. In this case, if the notes were assigned before the conversion, the assignee would have a right to maintain' the action of trover in his own name, but could not recover in the name of the assignor, who had no interest in the notes at the time of the conversion, and therefore could not be injured thereby. If the notes had been delivered up and cancelled before the assignment, so that Chase had no remedy thereon, but had a good cause of action against Healy for the conversion, the simple assignment of the notes would not authorize the assignee to prosecute in the name of Chase for the previous tort.

If the petitioner has any remedy, it must be either by an action at law, in the name of Chase and wife against Whitney *to recover the amount of the original notes, or by an action of trover, in his own name against Healy, for a conversion subsequent to the assignment, or by a bill in equity against all the parties, to obtain the possession or proceeds of the new notes, to which, perhaps, he may in equity be entitled, subject to the wife’s equity.

Under the circumstances disclosed in the petition, the suit at law must be considered as an action brought by Chase in his own right, or brought by the petitioner in his name, ivithout right or authority.

The motion to dissolve the injunction is refused, with costs to be paid by the petitioner.

       Courts of law, in this state, under sec. 111, New York Code, have adopted the Chancery practice, as to parties, with a few slight modifications, per Mason, J., in Wallace v. Eaton, 5 How. Pr. R. 99, 100, and per Parker, J., in Hollenbeck v. Van Valkenburgh, id. 281, 284. Every action at law must now be prosecuted in the name of the real parties in interest. But an executor or administrator, or a trustee of an express trust, or person expressly authorized by statute, may sue, without joining with him the person for whose benefit the action is prosecuted. (Secs. 111, 113.) Previously an action at law, to recover chose in action, should be in the name of the assignor, or if dead, bis personal representative, if any; but if there was no executor or administrator, the assignee might sue in Ms own name. 2 R. S. (2d ed.) 274, sec. 5; Seeley v. Seeley, 2 Hill, 496; See Corbin v. Emerson, 10 Leigh, 663; Bell v. Shrock, 2 B.Mon. 29.

       In equity, parties to a suit may be classed under three heads:
      1st. Those who may be parties.
      2d. Those who should be parties.
      3d. Those who must be parties.

        Those who may be parties.—Are those who have no real or legal interest, and who, without being improper, are not necessary parties; as for example, the assignor of an absolute and Voluntary assignment of a judgment, or an equity of redemption. Beeren v. Crane, 1 Green, Ch. R. 348; Vreeland v. Loubot, ib. 104, 348; Chester v. King, id. 405. Or, where a person implicated in a fraud, is made a party, for the purpose of charging him with costs, if M'Closker v. Brady, 1 Barb. Ch. R. 343; S. C., 1 Comst. 214. Or a residuary legatee to a bill by a creditor seeking to charge the general assets of the testator. Burrwell v. Corwood, 2 How. U. S. 515. But in general no one should be a party, against whom no judgment could be rendered. Reemsdyke v. Kane, 1 Call. 383; Vanderpool v. Devenport's Ex'rs, 2 Green, C. R. Where, however, the assignment is involuntary, as if made by operation of law, the assignor must be made a party. Sedgwick v. Cleveland, 7 Paige, 289; Mills v. Hoag, id. 21.

        Those who should be parties.—The exact difference between those who may be, and those who should be parties, is slight, and the line of demarcation often difficult to trace. It is said that it may be done by limiting the class of those who should be parties, to those who have an interest in the event of the suit. Wiser v. Blackley, 1 John. Ch. 438; King v. Berny’s Ex'rs, 2 Green. Ch. 52; Caldwell v. Taggart, 4 Pet. 190; Bank Alexandria v. Seaton, 1 id. 306; Marshall v. Beverly, 5 Wheat. 313; Wendell v. Van Rensselaer, 1 John. Ch. 349; Hallett v. Hallett, 2 Paige, 15; see also Am. Ch. Dig. by Waterman, tit. Parties.

        Those who must he parties.—Includes, as a general thing, those who should, he parties, and extends to all persons materially interested, in the matter of the bill, as plaintiffs or defendants. Such persons should be made parties, however numerous they be. West v. Randell, 2 Mason, 181; Crocker v. Higgins, 7 Conn. 342; Wendell v. Van Rensselaer, 1 John. Ch. 349; New London Bank v. Lee, 11 Conn. 112. The rule as to those who should be parties, is extremely pliable, and maybe moulded to suit the ends of justice. Hallett v. Hallett, 2 Paige, 15, and cases there cited. But the court will not exercise such latitude of discretion, wdien the rights of persons not before it, are so inseparably connected with the claims of the parties litigant, that no decree can be made without affecting the rights of the former. Id. See sec. 117, N. Y. Code.


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    Stafford and others v. Howlett and West.
    Sept. 13th.
    An original bill cannot be amended by incorporating therein any thing which arose subsequent to the commencement of the suit. This should be stated in a supplemental bill.
    All matters which arose previous to the filing of the original bill, although discovered afterwards, should be introduced into the same by way of amendment, if the cause is in a stage in which an amendment is allowable.

    If the cause has progressed so far that an amendment cannot be made, or if material facts have occurred subsequent to the commencement of the suit, the court will give the complainant leave to file a supplemental bill. And where such leave is given, the court will permit other matters to be introduced into the supplemental bill, which might have been incorporated in the original bill by way of amendment.
    If it appears upon the face of the supplemental bill that all the matters alleged therein arose previous to the commencement of the suit, and might have been inserted in the original bill byway of amendment, the defendant may demur. But if this irregularity does not appear upon the face of the supplemental bill, the facts may be brought before the court by plea.
    The complainants, as execution creditors of Simeon West, filed their original bill against him and two others, for the purpose of obtaining satisfaction of their debt out of his property which had been placed beyond the reach of their execution. After the other two defendants had answered, the complainants filed their supplemental bill against West, one of the original defendants, and Howlett, who was not a party *to the former proceedings, alleging that West had assigned portions of his property to Howlett, for the purpose of defrauding the complainants, and defeating their original bill.
    To the supplemental bill the defendants put in a plea, alleging that if the complainant ever had any cause of suit against them, for or concerning any of the matters in the supplemental bill mentioned, the same arose before the filing of the original bill.

      J. W. Cushman, for the complainants,
    cited Allen v. Randolph, (4 John Ch. Rep. 693;) Beames’ Pleas, 29.

      S. A. Foot, for the defendants,
    cited Cooper’s Pl. 203, 4, 214; Mitf. Pl. 234, 5, 6 and 164.

       See New York Code, sec. 177; Verplank v. Mercantile Ins. Co., 1 Edw. 46; Bennington Iron Co. v. Campbell, 2 Paige, 159; Hunt v. Holland, 3 id. 78; see further Am. Ch. Dig. by Waterman, tit. Amendment.

      Supplemental answers in equity have not only been allowed, when facts material to the case were discovered subsequent to filing the answer, Strange v. Collins, 2 Ves. & B. 163; Taylor v. Obee, 3 Price; Redley v. Ofee. Wightw. 32; but also in cases where a defendant was ignorant of those facts. Jackson v. Parish, 1 Sim. 505; Tidswell v. Boyer, 7 id. 64. And where he knew of them, but was induced to leave them out, under mistaken advice of counsel. Nail v. Punter, 4 id. 440. Or through the misrepresentation of the complainant. Curling v. Marquis of Townshend, 19 Ves. 628.

   The Chancellor :—It is a well settled rule that nothing can be inserted in an original bill by way of amendment which has arisen subsequent to the commencement of the suit, but the same must be stated in a supplemental bill. On the other hand, matters which arose previous to the filing of the original bill, although discovered by the complainant afterwards, should be introduced into the same by way of amendment, provided the cause is in that stage in which an amendment is allowable. (Mitford’s Pleadings, 60.) If the cause has progressed so far that an amendment cannot be made, or if material facts have occurred after the commencement of the suit, the court, on a proper application, will give the complainant leave to file a supplemental bill. (Goodwin v. Goodwin, 3 Atk. 370.) And wherever the party is permitted to file such bill for the purpose of introducing matters which have arisen subsequent to the filing of the original bill, the court will also give to the complainant permission to introduce other matters into the supplemental bill, which might have been introduced by way of amendment to the first bill.

If it appears upon the face of the supplemental bill that the whole of the matters charged therein arose previous to the commencement of the suit, and that the situation of the cause is such that they may be inserted in the original bill by amendment, the defendant may demur. (Mitford’s Plead. 164. Baldwin v. Mackown, 3 Atk. 817.)

*But if it does not distinctly appear by the supplemental bill, that the new matters charged therein arose before the filing of the original bill, the defendant can only take advantage of the irregularity by a plea alleging the fact. (Mitford, 230.)

The bill and plea in this cause taken together show, that the new matters are improperly brought before the court by this supplemental bill, and that they were the proper subjects of an amendment of the bill in the original suit; the plea must therefore be allowed.


text:
    Whittick v. Kane and others.
    Parol evidence is admissible to show that a deed, absolute in its terms, was intended by the parties as a mortgage.

      Bona fide purchasers without notice, who have actually paid the purchase-money, cannot be disturbed in their title to the premises purchased, where the deed intended as a mortgage is absolute on its face.
    In such cases, the remedy of the mortgagor is personal against the mortgagee and Ms legal representatives for the moneys received on the sale of the mortgaged premises.
    In taking and stating an account of the amount due on such mortgage, the mortgagee will be charged with the rents and profits of'the mortgaged premises from the time he took possession, and also with the amount of the purchase-money received by him on the sale of the premises, together with interest thereon to the time of stating the account.
    October 7th.
    The complainant filed Ms bill in this cause in October, 1821, setting forth that, in January, 1772, his paternal grandfather owned lot No. 19, in Snyder’s patent, in the town of Hoosiclc; that he was about 60 years old, ignorant and incapable of reading or writing, or of understanding the contents or import of legal conveyances. That on the 11th of November, 1763, he borrowed of Cornelius Van Schelluyne, father of Dirck Van Schelluyne one of the origmal defendants in this cause and of Deborah the wife of Elias Kane, £50, for which he gave his bond payable with interest, together with a warrant of attorney to confess judgment thereon, but no-judgment was entered. That on the 18th of ^January, 1772,Whittick executed to Schelluyne an absolute deed of lot No. 19, and of two other lots which afterwards fell within the Vermont line; which deed was only intended as a security, by way of mortgage, to secure the money loaned, with interest thereon, but no "written defeasance was ever executed. That WMttick continued in possession of the whole premises until two lots were taken by the state of Vermont, and then continued in the actual uninterrupted possession of lot No. 19 until his death, in 1791, andalways considered and spoke of the conveyance to Schelluyne as a mortgage; and the latter never claimed the possession or fee of the premises, or exercised any acts of ownership over the same by leasing, or otherwise, but always treated the premises as the property of Whittick, subject however to the payment of Ms debt. That at the death of John Whit-tick, he left two children; Abraham, the father of the complainant, and Henry, an idiot. That Abraham Whittick continued in possession of No. 19 until July, 1792, when he died m possession, leaving his wife and the complainant, and his sister, then infants under the age of three years, him surviving, who together with the idiot continued in possession of the premises. That in 1796, the complainant’s mother married Henry Lampman, who came on to the lot and continued in possession thereof, by virtue of the estate of his wife, and continued to reside on the premises until the death of the complainant’s mother in 1798; when he left the premises, and Peter I. Lampman entered into possession thereof. That Peter I. Lampman attorned to Schelluyne and continued to reside on the premises with Henry Whittick the idiot, until April, 1816, and during that time made large payments to Schelluyne out of the produce of the lot towards the debt for which it was mortgaged. That Cornelius Schelluyne, down to the time of his death, in 1813, never pretended to have any thing more than a mortgage interest in the premises; and frequently admitted the right of the complainant and his sister to redeem the same when they were of age, and promised to convey to them on the complainant’s giving security to support his uncle, the idiot. That in 1809, the complainant’s sister married Solomon Foster, *and moved to some part of the state of Ohio; and Henry Whittick, the idiot, died in 1820, leaving the complainant and his sister his heirs at law. That Cornelius Yan Schelluyne devised and bequeathed all his estate to his son Dirck and to his daughter Deborah, wife of Elias Kane, and made his son and Kane executors. That in 1816, the defendant Kane went on to the premises, claiming the same in behalf of his wife and Schelluyne, and directed Lamp-man to remove therefrom, together with Henry Whittick, the idiot; and that on the 22d of March, 1816, Dirck Schelluyne and wife, and Kane and wife, conveyed the premises in fee to the defendants Rogers and Sherwood, for $2,500.
    The defendants Rogers and Sherwood, by their answer, admitted the purchase made by them, but insisted that they were bona fide purchasers without notice of the equitable right claimed by the complainant. Dirck Schelluyne and Kane and wife denied all knowledge that the conveyance of the premises to Cornelius Schelluyne, in 1772, was intended as a mortgage, and insisted upon it as an absolute conveyance. They admitted the sale of the premises to Rogers and Sherwood, but denied all knowledge of the principal facts stated in the bill, and put the complainant to the proof thereof; and they also alleged that they had found among the papers of Cornelius Van Schelluyne a bond, purporting to be executed by John Whittick and Abraham 'Whittick, dated January 24th, 1787, conditioned to pay him £225 12s. on the 1st of February then next, with interest, and also a warrant of attorney to confess judgment thereon; that no judgment had been entered, and no payment was indorsed thereon; and they insisted upon the benefit of the statute of limitations, and the statute of frauds.
    The defendant Dirck Van Schelluyne died after proofs had been taken in the cause, and the suit was revived against his heirs and legal representatives.

      C. V. Denniston, for the complainant.

      C. V. S. Kane, for the defendants.

       See Ante, 77.

   *The Chancellor :—By the testimony in this cause, the complainant has established the principal allegations contained in his bill. It appears that Crean Brush, by lease and release bearing date on the 24th and 25th of September, 1762, for the consideration of 507, conveyed lot No. 19 in Snyder’s patent, in the town of Hoosiclc, to John Wit-tick or Whittick, the paternal grand-father of the complainant, together with two other lots which were then supposed to be within that patent, but which afterwards fell within the line of the state of Vermont. Whittick went into possession of the land, and continued to reside thereon till his death; and his sons Abraham Whittick, father of the complainant, and Henry Whittick, an idiot, resided with him on lot No. 19, which is the only subject of controversy in this cause. In 1791, John Whittick died intestate, and leaving his two sons his only heirs at law. In the succeeding year, Abraham was killed by being thrown from a ’ horse, and left the complainant and his sister Caty, both at that time very young, his only children and heirs. The widow of Abraham continued on the farm with her infant children, and their uncle the idiot, and a few years after-wards married Henry Lampman, who moved on to the farm with her. She died shortly after, and the complainant was then put out to learn a trade, and his sister went to live with one of her maternal relatives. Henry Lampman soon after left the farm, and Peter I. Lampman succeeded bim ; but in what manner he went into possession does not distinctly appear. Henry Whittick, the idiot, continued to reside with him on the farm, and was supported by him until he left the place in 1816. Peter I. Lampman either went into possession under Schelluyne, or attorned to him afterwards; as he recognized him as his landlord, and paid him rent for the use of the farm over and above the expense of supporting the idiot, who was wholly incapable of doing any thing for himself. In 1809, Caty, the sister of the complainant, then under age, married Solomon Poster, and a few years afterwards moved to the state of Ohio, where she and her husband and one of her children have since died, but *leaving one child who is supposed to be still living. When Lampman was turned out of possession of the farm, by the defendants, in 1816, Henry Whittick, the idiot, was also removed therefrom, and died in the poorhouse in 1820, without issue.

John Whittick, the grand-father of the complainant, executed a conveyance of lot No. 19, and the two other lots, to Cornelius Van Schelluyne, by lease and release, bearing date the 17th and 18th of January, 1772, which the complainant insists was only intended as a mortgage or security for the repayment of the 507 loaned to the grand-father by Schelluyne in November, 1763, and that both parties always considered and treated it as a mortgage only.

The conveyance is absolute in its terms, and was not accompanied by any written defeasance; and the defendant’s counsel contended that parol evidence cannot be received to establish the claim set up in the complainant’s bill. Since the decision of the case of Clark v. Henry in the Court of Errors, (2 Cowen’s Rep. 324,) I consider the law as settled in this state, that paroi evidence is admissible to show that a deed, absolute in terms, was intended by the parties thereto only as a mortgage, or security for the payment of money. It will, therefore, be necessary to examine the evidence produced by the complainant in this case to support this allegation in his bill.

All the witnesses agree that Whittick was a very illiterate man, unable to read or write; and the deeds produced appear to have been executed, both by himself and wife, by affixing their marks.

Nathaniel Barnet testifies that in 1781, Schelluyne told him he had an absolute deed of the farm from John Whit-tick, which he had taken as security for money he had let Whittick have to enable him to improve the land; the witness thinks the amount stated to have been lent was 1007 The -witness observed to Schelluyne, “we Yankees do business in a different way;” to which he replied, it was customary among the Dutch to deal in that way, as they had more confidence in each other than Yankees had. Schelluyne further ^remarked that he did not consider himself to be the owner of the land, and considered the deed only as a security for the money lent. This evidence is strongly corroborated by the fact that John Whittick continued in the uninterrupted enjoyment of the farm claiming and improving it as his own until his death, nearly twenty years after the giving the deed; and that his heirs continued in the undisturbed possession for six or seven years after-wards, and until all who were in a situation to cultivate or carry on the farm were dead. Schelluyne then put a tenant in possession of the land; but the idiot son of John Whittick still continued to live there, and was supported out of the rents and profits of the farm during the life of Schelluyne.

William Lake also testifies that in 1810 or 1811, he had a conversation with Schelluyne in which he acknowledged the right of the heirs of Whittick to redeem the farm, and admitted that he did not purchase the same, but only took the deed as security for the repayment of money loaned, which the witness thinks was said to be £60.

Henry A. Lake, also testifies to the same conversation, substantially, in 1811; and to similar conversations with Schelluyne, in 1809 and 1812, when he called upon him in relation to this business on behalf of' the complainant and his sister.

Among the exhibits produced by the complainant is a cancelled bond and warrant of attorney, given by Whittick to Schelluyne, dated the 11th of November, 1763, conditioned for the payment of £50 and interest. And the defendants also produce a bond dated the 24th of January, 1787, given by John Whittick and his son Abraham, to Schelluyne, conditioned for the payment of £225 12s. with interest, witnessed by Henry Truax, and the body of which is apparently in.the same handwriting. Truax, who was examined as a witness, does not appear to have been shown this bond, or interrogated respecting the same. But he does testify that he was once at the house of Whittick, in Hoosick, with Schelluyne, between 30 and 40 years previous to his examination, (probably at the time that, bond was-given;) that Schelluyne went to see about money owing to him by Whittick; and the witness was- never there before or since.

*Erom the testimony which I have mentioned, independent of any other which was given in the case, I am satisfied the deed from Whittick was only intended by the parties as a security for the payment of money. The precise sum which was due does not distinctly appear; but it is probable the bond dated in 1787, and found among the. papers of Schelluyne, was the sum actually due at that time.

This bond cannot, as is supposed by the defendants, have been given for the loss of the two lots of land, embraced in the deed, which afterwards fell into the state of Vermont. The act authorizing the cession of the state of Vermont was passed three years after the date of that bond; and the cession was not made by the commissioners till the 7th of October, 1790. By the agreement of the commissioners, the state of Vermont paid $80,000, for the purpose of indemnifying the owners of lands deriving titles from this state which fell within the bounds of Vermont, as settled by the commissioners. If Schelluyne received any of those moneys, under the act of the 6th of April, 1795, for the two lots included in the deed from Whitticlc, the same must be deducted from the amount due on account of the loan.

The acknowledgment of Schelluyne, within ten years previous to the commencement of this suit, is a sufficient answer to the objection arising from the lapse of time, independent of the fact of the infancy of the complainant and his sister, and the idiocy of their uncle, who owned one-half of the premises.

The conveyance to Schelluyne being absolute on its face, and the defendants Rogers and Sherwood having purchased the premises and actually paid the purchase-money, without notice of the equitable rights of the complainant, their title to the premises cannot be disturbed. The remedy of the complainant is against the defendants Kane and wife and the legal representatives of Dirck Van Schelluyne, for the moneys received on the sale to Rogers and Sherwood. There must be a reference to a master to take and state an account of the amount due on the mortgage for principal and interest, taking the sum mentioned in the condition of the bond of the *24th of January, 1787, as the amount due at that time, and charging the defendants for all sums received by Schelluyne afterwards; and also charging them for any sums received by Schelluyne from this state, or otherwise, on account of the two lots which fell into the state of Vermont; also charging them with the rents and profits of lot number nineteen, from the time that Schelluyne took possession thereof by his tenant, until the sale to Sogers and Sherwood, excepting so much thereof as was applied to the support of Henry Whittick the idiot. The defendants must also be charged with the amount of tJie purchase-money received from Bogers and Sherwood, and interest thereon from the time of the sale to them. And the usual authority must be given to the master to examine the parties on oath, and to compel the production of books and papers; and all other questions and directions must he reserved.