text:
    Bleeker and wife vs. Bingham and wife.
    April 17.
    Where the bill charged, that by a post nuptial agreement between the defendants, a husband and his wife, the property of the wife was conveyed to trustees, and it was agreed that a certain specified part of the property should be vested in stocks, or put out at interest, as a provision for the complainant for whom the wife considered herself under a moral obligation to provide, and that the interest or the dividends on the stock should be paid to the wife, free from the control of her husband, for the use and benefit of the complainant, according to the discretion of the wife during her life, and that upon the death of the wife, the principal should become the property of the complainant if she survivedTier; and the bill further charged that the husband refused to permit his wife to receive the dividends on the stock, and to pay them over, according to her discretion, to the complainant; a general demurrer to the bill for want of equity, put in by the husband for himself and his wife jointly, was overruled.
    Although upon a deed inter partes, a stranger cannot at law recover on a covenant contained therein for his benefit, yet a court of equity will give efiect to stipulations of this kind in marriage articles, and other conveyances in trust, upon the application of the party for whosebenefit the provision was intended.
    A demurrer for want of equity cannot be sustained, unless the court is satisfied that no discovery or proof properly called for by or founded upon the allegations in the bill, can make the subject matter of the suit a proper case for equitable cognizance.
    The bill in this cause alleged that Ephraim Brasher died some years since, and by his will bequeathed the whole of - his estate to his widow, now the wife of J. Bingham, the defendant. That Brasher had no children; but that Grace Berrian, who was his relative, now the wife of L. Bleeker the complainant, resided in his family. That it was the intention of ' Brasher to alter his will, and to give G. Berrian a portion of his estate; but being suddenly overtaken by death, he had not time to alter his will for that purpose. That in his last moments he requested his wife to provide for her. That the widow after-wards undertook to make such provision, and for this purpose she made a will, by which she gave to G. Berrian a legacy of $1250, and made her the residuary devisee of property worth at that time $8000. That the widow afterwards married John Bingham, without making any other provision for G. Berrian ; acting under the belief that the will would remain valid notwithstanding the marriage. That when Mrs. Bingham discovered that her will was revoked by the marriage, she applied to her husband to join her in executing a trust deed, disposing of her property after her death, according to the terms of the will. That afterwards, in February, 1818, the defendant and his wife executed a trust deed to Stephen Allen and Judah Hammond. That by this deed, which recited that Mrs. Bingham was seised of certain lands in fee at the time of her marriage, part of which had been taken by the corporation of the city of New-York, for which damages to the amount of $13,100 had been awarded, and that Bingham was then seised of the residue of such lands, in right of his wife, and that he was willing and desirous to enable his wife to make such disposition of the property as if she was sole, he conveyed the premises mentioned in the deed, to Allen and Hammond as trustees, upon the trusts and for the uses stated in the deed. And that he covenanted with the trustees to permit her to dispose of the said lands, and her other separate estate, 'as if a feme sole; reserving to himself the use of $10,000 of the amount awarded as damages, for his natural life. The trust deed then contained a clause, under which the complainants claimed, in the following words: “And as to the said sum of $13,-100, it is further agreed by and between the parties aforesaid, that the sum of $2,500, being part and parcel thereof, shall be put out at interest or invested in bank stock, at the option of the said Mary, (Mrs. Bingham,) and that the, interest thereof or the dividends which shall or may accrue or arise therefrom, shall be paid to the said Mary, and received by her, on her own receipt, for the use and benefit of Miss Grace Berrian, according to the discretion of the said Mary, free from any control of the said John Bingham, during the natural life of her the said Mary, and so as and in such manner that the said sum of $2500 shall be and remain, and shall be considered and taken to be separate and distinct from the estate of the said John Bingham, and no ways accountable for his debts, in manner aforesaid. And from and immediately after the decease of the said Mary, the said sum of $2500 shall become and be the proper money of Miss Grace Berrian, aforesaid, for her own use and benefit, forever; provided the said Grace shall survive the said Mary. And that no alteration or other limitation or appointment shall be made by the' parties of the first part to these presents, or either of them, whereby to defeat or impair the estate granted by this clause to the said Grace Berrian, any thing in these presents contained to the contrary there-' of notwithstanding. But subject, nevertheless, to the following proviso, that is to say: in case the said Grace Berrian should happen to die before the time of the decease of the said Mary, then, and in that case, if the said Grace Berrian should leave no lawful issue, the said Mary reserves to herself-the right of . making such further disposition of the said sum of $2500 as to her shall seem meet.”
    The bill also stated the written 'acceptance of the trust by Allen and Hammond, and the recording of the trust deed, in March, 1818. That in April or May thereafter, the defendants, pursuant to the provisions of the trust deed, and for the use and benefit of Grace Berrian, purchased 85- shares of the stock of the Mechanics’ Bank, at the price of $2491, for the purpose of investing the $2500 ; which investment was declared by the defendants, at the time, to be made for her use and benefit, in compliance with the trust created for her by ■ the trust deed. That the stock was bought in the name of Mary Bingham, and her husband had always received the dividends thereon. That the complainants were married in July, 1818, but not having seen the trust deed, they were not informed until lately that by that deed Mrs. Bleeker was entitled to the dividends on the stock, during the Ufe of Mrs. Bingham. That the complainants had applied to Bingham for the payment of the dividends, but such payment had been refused. That they were not informed whether Bingham had paid the same over to his wife according to the trust. But that he had refused to permit his wife to pay over the dividends to the complainants; and that she, acting under fear and compulsion of her husband, had refused to pay over the same. The bill prayed a discovery, as to the investing of the $2500, agreeable to the trust; as to the receipt of the dividends ; as to who had received them, and how they had been disposed of. It also prayed that the defendants might be decreed to pay the dividends to the complainants'; that the $2500 might be securely and properly invested, under the direction of the court; and for general relief.
    The defendants put in a general demurrer to the bill, for want of equity,

      J. Smith, for the complainants.

      S. A. Talcott, for the defendants.
   The Chancellor.

The cases referred to by the counsel for the defendants, on the argument, establish the principle, that upon a deed inter partes, a stranger cannot at law avail himself of a stipulation in his favor. Neither can the release of such stranger be pleaded in bar to an action of debt or covenant brought by the party with whom the agreement was made. (Scudamore v. Vandenstene, 2 Coke’s Inst. 673. Gilby v. Copley, 3 Lev. 138. Storer v. Gordon, 3 Maule & Sel. 308. Barford v. Stuckey, 5 Moore's Rep. 23.) It will be found upon examination, however, that this is a mere technical rule. And in Barford v. Stuckey, Dallas, Ch. J. says, in express terms, that the person with whom the contract was made might have been compelled by a court of equity to sue for the benefit of the party in whose favor the stipulation was made. It is every day’s practice in this court to give effect to such stipulations in marriage settlements, and other conveyances in trust, upon the application of the persons in whose favor the stipulation is made; although such persons are not parties to the deed. And even at law, upon an agreement riot under seal, a third person may maintain the equitable action of assumpsit upon a stipulation for his benefit, contained in a contract between other parties. (Schermerhorn v. Vanderheyden, 1 John. Rep. 139. Sprat v. Agar, 2 Siderf. 115. Dutton v. Pool, T. Raym. Rep. 302. Starkey v. Mill, Style’s Rep. 296.)

In this case Grace Berrian can hardly be considered as a mere stranger to the deed of trust, and to the consideration upon which the provision in her favor was made. Although Mrs. Bingham was under no legal obligation to make this provision, or any other, in favorof Grace, yet she undoubtedly considered the dying request of the first husband, from whom she received the property, as forming a moral obligation, as strong, at least, as that which req'uires a parent to provide for ■ his children. I think, therefore, there was a meritorious consideration' in the case to support this agreement with Mrs. Bingham, by her husband, in behalf of the object of her bounty. There is no pretence in this case, that the consideration received by the husband from the wife was not sufficient to support the agreement as between themselves. The whole property belonged to the wife; and there were no children, of the marriage, to entitle him to an estate for life as tenant by the curtesy; yet, by the deed of trust, he obtained an interest for life in $10,000 of the money arising from her land which had been taken for a city improvement.

It is not necessary to determine, in this stage of the suit, whether there can be any decree against the wife, in relation to the income of the bank stock ; or whether that income would belong to Mrs. Bleeker, on the death of Mrs. Bingham, if the latter, in her discretion, should think proper to retain it until that time. The allegation in the bill is that the husband, in violation of the stipulation in the trust deed, has received the dividends himself, and has refused to permit his wife to pay them over to the complainants. In other words, "that he has controlled her volition; and has not permitted her to apply the dividends, to the use of Mrs. Bleeker, according to her own discretion. If the agreement is valid, the court may at least require the husband to place the dividends in the hands of the wife, so that she may apply them to the use of the complainants in such way as in her discretion she may deem proper. And if she thinks proper °to have them paid over absolutely, the husband should be required to pay them accordingly.

If the complainants have an interest which this court can protect, it was not necessary for them to join the wife, as a complainant, in the bill against her husband. Her legal and equitable rights can be enforced and protected as a defendant. And if she wishes to put in a separate answer for that purpose, it will be a matter of course, in a case like the present, to grant her that permission. There is no objection made by-the demurrer, of a want of parties; and if the trustees are necessary parties, the complainants can bring them before the court, as defendants, by an amendment of the bill. This is a general demurrer for want of equity ¡ and it must be overruled, unless the court is satisfied that no discovery or proof, properly called for by, or founded upon, the allegations in the bill, can make it a proper subject of equitable jurisdiction. (1 John. Cas. 427.)

For these reasons I think the complainants are entitled to an answer. The demurrer must therefore be overruled, with eosts.


source: Caselaw Access Project

author: The Chancellor,

license: Public Domain

text:
    In the matter of Lytle, a lunatic.
    April 18.
    Where the wife of a lunatic petitioned for the removal of the committee, upon the ground of fraud and mismanagement in the execution of his trust, and upon the hearing it appeared that the committee had faithfully discharged his duty, and no probable cause for the application was shown, the wife was denied costs out of the estate ; but the costs of the committee were allowed.
    The committee of a lunatic, who has voluntarily accepted the appointment, cannot be discharged without shewing some valid excuse for resigning the trust; and the fact that his situation is rendered unpleasant, in consequence of controversies existing between different members of the lunatic’s family, is not sufficient for that purpose.
    The wife of Lytle, the lunatic, petitioned for the removal of the trustee ; charging fraud and mismanagement in the execution of the trust. But upon the hearing of the parties, the chancellor was satisfied the conduct of the committee- had been discreet and proper; that he had faithfully discharged his duty; and that the only cause of dissatisfaction arose from the personal controversies between different members of the lunatics family, none of whom, except the petitioner, had any legal claim to a support out of the estate. The counsel ibr the wife asked for the costs of the application to be paid out of the estate. And the committee, finding his situation unplea s-ant on account of these family difficulties, asked to be discharged from his trust.

      R. Weston, for the petitioner.

      S. Stevens, for the committee.
   The Chancellor,

said the wife of the lunatic had an interest in the estate, for her support and maintenance; and that if she had shown even probable cause for the application," the court would have allowed her costs, to be paid out of the estate; as she had no property independent of that of her hus°band. But that in this case there was no foundation for charging the committee with a breach of trust; and that if the solicitor for the petitioner had applied to the committee for an explanation, instead of relying solely upon the representations of the wife and her son-in-law, he must have been satisfied that the application to this court to remove the committee could not be sustained. That no costs therefore could be allowed out of the estate, except the costs of the committee in opposing the petition.

The application of the committee to be discharged from his trust was also refused. The chancellor said it was not a matter of course to discharge a trustee merely because the execution of the trust had become unpleasant. He must show some valid excuse for declining the trust. That the reasons here offered would equally apply to any new committee who might be appointed, and who should faithfully discharge the duties imposed upon him in this case. That having voluntarily accepted this trust, the committee could not be discharged, under existing circumstances.


author: The Chancellor

text:
    Higbie vs. Edgarton.
    April 19.
    Where the defendant neglects to appear and oppose a motion for an order directing him to deliver certain articles to the master, he cannot afterwards resist a motion for an attachment against him for his non-compliance with the order, by showing that such order ought not to have been made.
    His proper course, where the order is improper, or has been obtained through inadvertence or mistake, is to apply to open the motion, or to vacate the order.
    On a former day the complainant, upon due notice to the defendant, who did not appear to oppose the application, ob- " tained an order directing the defendant Edgarton to deliver to ° the master certain articles alleged to he in his possession within three days after service of the order. The defendant having neglected to comply with the order,

      J. Blunt, for the complainant, now moved for an attachment, for disobedience to the order.

      M. T. Reynolds, for the defendant, opposed the motion. And offered to read an affidavit of the defendant, showing that he had sold the property previous" to the receipt of the notice of the former application,'so that it was impossible for him to comply with the order.
   The Chancellor

said the defendant should have appeared and opposed "the former application, if he had any reasons to show why the order then asked for should not be made. That if the order was improper, or had been obtained against him through any inadvertence or mistake, his proper course was to apply to open the motion, or to vacate the order.' The attachment was therefore granted; but with liberty to the defendant to apply, at the next motion day, to vacate the former order.


author: The Chancellor.

text:
    Hills vs. Miller and others.
    May 1.

    Where M. purchased lanci in a village, adjoining a public street, and it was at the same time agreed between him and- the vendor that a triangular piece of land, belonging to the latter, on the opposite side of the street and in front of the land sold, should never be built upon, but should be deemed public property; and the vendor executed to M. a deed of the land sold, and a bond for the performance of the agreement as to the triangular piece of land, both instruments being duly proved and recorded; and»H. after-wards purchased of M. the land opposite the triangular piece, after being informed by hirii of the privilege secured by the bond: Held, that H. was entitled to the benefit of the easement; and that M. could not, without his consent, be permitted to "make a new arrangement with the holders of the legal estate in the triangular piece of land by which buildings should be erected thereon. « - ,
    Easements are annexed to the estate of the owner of the dominant tenement, and pass to the grantee of such estate. They are also a charge upon the estate of the owner of the servient tenement, and follow such estate into the hands of those to whom the servient tenement or any part thereof is conveyed.
    An easement is not destroyed by a division, or a sale of a part of the estate to which it is appurtenant. And the assignee of any part of the dominant tenement may claim the benefit of the easement, so fair as it is applicable to his part of the property"; provided the right, as to the several parcels, can be enjoyed without any additional charge or burthen upon the proprietor of the servient tenement.
    Separate instruments, executed at the same time and relating to the same .subject matter, may be construed together, and taken as different parts of the same agreement.
    In July, 1816, W. Bostwick was the owner of a lot of land in the village of Auburn, containing about four acres, lying on the west side of South and Hotel streets. He also owned a small triangular piece of land on the east side of Hotel street, at the junction of that and South street. This piece of land lay directly opposite or in front of the north part of the four acre lot, and was between five and six rods in length, north and south. E. Miller contracted to purchase the four acre lot; and as a part of the bargain, it was agreed that the triangular piece of land should be deemed public property, so that Bostwick, or any person holding under him, should never erect any buildings thereon, or exercise any other acts of ownership on the same, other than what any other, inhabitant of that village should have a right to do. To carry that agreement into effect, Bostwick conveyed the 'four acre lot to Miller, on the 25th. of July, 1816; and at the same time executed to him a bond, in the penalty^of $10,000, with a condition for the per-' formalice by Bostwick, his heirs, executors and administrators, of the agreement respecting the triangular piece of land-, and of certain other engagements of Bostwick relative to streets, &c. Miller afterwards procured both the deed and bond to-be duly proved and recorded in "the office of the clerk of the county of Cayuga. In November,-1823, Miller'sold the north part of the four acre lot to the complainant, except one rod in width, on-the north side of-the same, which he had previously conveyed to others. Before the purchase by Hills, Miller informed him that he had a writing from Bostwick which would prevent the erection of any building on the triangular piece, which was in front of that part of the four acre lot. This-statement was made by way of commendation of the property" which he was about to sell; and, as the complainant alleged, it operated-as an inducement to him to make the purchase, goon after the purchase from -Miller, the complainant erected a valuable dwelling house on the land pui'chased by him, for the private residence of himself and family, and made other improvements thereon. Directly in the rear of the triangular piece of ground, the Baptist society had erected a church, extending nearly from one street to thé other, and fronting on that piece of ground, which lies open to the streets. Bostwick afterwards died, and George B. Throop and others were appointed executors of his will, with power to convey his real estate. In August, 1831, the trustees of the Baptist society xvishing to enlarge their church, they applied to Miller and to the executors of Bostwick, for permission to extend their church on to the triangular piece of ground. Hills gave notice of his claim, and objected to having any part of the triangular piece occupied for that purpose. Notwithstanding this objection, Miller and the executors of Bostwick gave to the trustees of the church a quit claim deed of the triangular piece, and authorized them to extend their church twelve feet on to that piece of land. And the trustees were proceeding to build thereon accordingly, xvhen the complainant filed his bill in this cause, and obtained an injunction. On the com-. ing in of the answers of the defendants, an application was made to dissolve the injunction.

      H. Bleecker, for the complainant.

      W. H. Seward, for the defendants.
   The Chancellor.

In this case it is evident, from the admissions in the answers, that the agreement to keep the triangular lot clear of buildings, and the agreement for the purchase of the lands conveyed by Bostwick to Miller by the deed of July, 1816, formed one entire contract, although embraced in different instruments. In Jackson v. Dunsbagh, (1 John. Cas. 91,) the supreme court of this state decided that separate deeds or instruments, executed at the same time, and in relation to the same subject matter, might be taken together and construed as one instrument. That decision was founded in good sense, and is supported by the authority of the case of Taylor, ex dem.Atkyns, v. Horde, (1 Burr. Rep. 107.) In the last case Lord Mansfield says, in relation to two separate deeds of the same, date, “ The internal evidence of the thing itself speaks them to be one transaction, and the same to all intents and purposes as if expressed in one instrument.” In Van Horne v. Crain, (1 Paige’s Rep. 455,) this court applied the same principle to two separate instruments executed at the same time; by one of which a lot of land was conveyed for the purpose of a mill site, and the other one secured the right to a small piece of land upon an adjoining lot, containing a spring and run of water which were wanted for the use of the mills. In the case under consideration, the object of the bond was not to secure a personal right to Miller to have the triangle kept open, without reference to the benefit he expected to receive thereby as the owner of the lands conveyed to him by the deed, 'lit was an easement or privilege annexed to those lands ; and if he had reconveyed the whole of the land to Bostwick, his right to recover for a breach of the condition of the bond would have become extinct. (3 Kent’s Comm. 449. Ersk. Princ. 218, 227.) The right thus granted was the servitude non offiáendi lummibus vel prospectui of the Roman law, or the right of the owner of the lands to which it is appurtenant to restrain the owner of the servient tenement from making any erection thereon which may injure the light or prospect of the dominant tenement, or any part thereof. Rights of this description, denominated predial servitudes in the civil law, and by our law termed easements, are attached to the estate, and not to the person of the owner of the dominant tenement; and they follow that estate into the hands of the assignee thereof. So, on the other hand, they are a charge upon the estate or property of the servient tenement, and follow it into the hands of any person to whom such tenement or any part thereof is subsequently conveyed. (3 Kent's Comm. 420. Code Nap. art. 686. Inst. Civ. Law of Spain, 139.) As the right is annexed to the estate, for the benefit of which the easement or servitude is created, the right is not destroyed by a division of the estate to which it is appurtenant. And the owner or assignee of any portion of that estate may claim the right, so far as it is applicable to his part of the property, provided the right can be enjoyed as to the separate parcels without any additional'charge or burthen to the proprietor of the servient tenement. The same principle is applied by the courts of law to covenants which run with the land. And the assignee of the whole estate in a part of the premises may recover in his own name, as such assignee, for a breach of the covenant as to that part, provided the covenant is in its nature divisible. (Shep. Touchs. 199. Conan v. Kemise, Sir W. Jones’ Rep. 245.) In the language of a distinguished common law judge, “ they stick so fast to the thing on which they wait, tho,t they follow every particle of it.” (See Wilmot's Opin. 346.) As the right to have the triangular lot kept open for the benefit of the dominant tenement, was appurtenant to every part of the premises conveyed to Miller to which that privilege could be of any possible use, Hills, by the purchase of that portion of those premises which lies directly opposite the triangle, became, in equity at least, the assignee of that privilege or easement pro tantos.

Miller admits, in his answer, that he informed the complainant of the right he had secured, by the bond of Bostwick, to prevent the erection of any building on the triangular piece of land ; and that tliis information was given pending the negotiation for a sale to the complainant, as commending the purchase of that part of the premises which was subsequently bought by him. If the privilege was of no value to that part of the property, the mention of the fact of the bond would have been no commendation ; and if it was calculated to enhance the value of the property in the opinion of the purchaser, it would be inequitable to permit the seller to release the right he had secured by the bond, after he had by that means induced the complainant to become the buyer. If such a privilege did increase the value of the property, or render its possession more desirable; either in reference to its present or future use for village lots, the legal presumption is that the purchaser took that privilege into the account in deciding upon the expediency of taking the property at the price he concluded to give. The complainant is therefore equitably entitled to the benefit of the stipulations in the bond, so far as is necessary to secure to him the privilege, as appurtenant to that part of the premises. As against the present or any future owners of the land still held by Miller, the trustees of the Baptist church have secured the right to extend their building on to the triangle to the extent of twelve feet. But as they made that arrangement with full knowledge of the equitable claim of Hills, they cannot, without his consent, be permitted to erect a building on any part of the triangle, to the injury of his part of the adjacent property held under the deed from Bostwick to Miller.

From the answer of the defendants, and from a view of the several localities about this triangle, as exhibited by the maps, I confess it appears to me that the complainant is a little unreasonable in refusing this privilege to a respectable congregation of Christians, who wish to enlarge their church by extending it only a few feet into this vacant lot; unless, indeed, the object of this suit is to settle his rights as to the future occupation of the residue of the triangle. But the same principle, which would authorize4his court to disregard his rights for this object, would render it equally proper for the court to disregard them if the object of the defendants was to erect a Hall of Science” or a Turkish mosque. And for aught I can know judicially, the contemplated building may be as offensive to the complainant as an edifice of either of the descriptions supposed would unquestionably be to his pious neighbors who now wish to worship there. However unreasonable I may suppose the complainant to be in this instance, if he has rights they are guaranteed to him by the constitution, and he cannot be deprived of them, even for a public benefit, except by due course of law, and upon receiving a just compensation therefor. The legislature has not deemed it expedient to authorize the taking of private property for such an object; and until they do so, he cannot be deprived of his rights without his consent.

The application to dissolve the injunction must therefore be denied.


text:
    Winship vs. Pitts.
    May 1.
    The court of chancery only interferes to prevent future waste; except in cases where there are some special grounds for equitable interference as to waste already committed.
    In ordinary cases, the account for waste already committed is merely incidental to the relief by injunction against future waste, and is directed upon the principle of preventing a rifeedless multiplication of suits-
    It is not waste for a tenant to erect a new edifice upon the demised premises, provided it can be done without destroying or materially injuring the buildings or other improvements already existing thereon. But the tenant has no right to pull down valuable buildings, or to make improvements or alterations which will materially and permanently change the nature of the property, so as to render it impossible for him to restore the same premises, substantially, at the expiration of the term.
    The ancient doctrines of the common law in relation to waste have been relaxed in-favor of modern tenancies, particularly as to buildings erected for the purposes of trade and manufacture.
    Where a bill is filed before a vice chancellor for an injunction, and after hearing both parties thereon, he refuses to allow the injunction, it is irregular to bring the same question before the chancellor by a new bill, while the former suit is pending before the vice chancellor.
    In February, 1830, the complainant leased to the defendant a house and lot, at the corner of Rivington street and the Bowery, in the city of New-York, for the term of eight years from the first of May thereafter. The lease contained • only the usual covenants to pay the rent, taxes and assessments, and to deliver up the possession of the premises at the end of the time, in good tenantable repair, &c. At the time of the execution of the lease, there was a dwelling house upon that part of the lot which fronts upon the Bowery, the lower room of which was fitted up and occupied as a druggist store. But the rear of the lot was vacant land, and only used as a yard or enclosure for the accommodation of the house. In March last the defendant concluded to erect a brick dwelling upon the rear of the lot adjoining Rivington street; and he made an agreement to under-let the same for the residue of the term, to be used as a livery stable. He accordingly took up the fence upon that part of the lot, and commenced the erection of the building. The complainant thereupon filed a bill before the vice chancellor of the first circuit, and applied for an injunction to restrain him from proceeding with the building. Upon the hearing of both parties before the vice chancellor, the injunction was refused. The complainant then filed a new bill before the chancellor, but without disclosing the fact of the previous application to the vice chancellor, and obtained an order to show cause why an injunction should not be granted.

      E. T. Pinckney, for the complainant.

      J. R. Hedley, for the defendant.
   The Chancellor.

After an application had been made to the vice chancellor in open court, and been denied by him, it would have been irregular to bring the same question before the chancellor during the pendency of that suit, except by way of appeal. The nature of the application in this case, however, was not such as to render an appeal absolutely necessary ; but the complainant was at liberty to discontinue that suit, on payment of the costs which had accrued therein, and to file a new bill before the chancellor. As the affidavits on the part of the defendant do not state that the former suit is still pending, I must, for the purpose of this application, presume it was regularly discontinued before the filing of the present bill. The case must therefore be disposed of upon the merits.

If the erection of the building in question is not such a nuisance as this court would restrain if the premises belonged to the defendant absolutely, the fact that the landlord has other lots which may be affected by the occupation of the rear of this lot as a livery stable, cannot entitle him to the remedy sought by this bill. It is not pretended that there was any mistake in drawing the lease, or that it does not contain the whole of the agreement between the parties. And if the landlord wished to prevent the tenant from using the property in the manner now contemplated, which is neither illegal or immoral, he should have made such a restriction a part of the agreement, by the insertion of a proper clause to that effect in the lease.

The only question presented by the agreement between the parties as evidenced by the written contract, is, whether the erection of the livery stable on the rear of this lot is either legal or equitable waste. If the taking up of the fence, and the removal of the out building a few feet from its former location, was waste, the complainant had a perfect remedy at law for that injury. This court only interferes to prevent future waste; except in cases where the complainant has no remedy at law, or a discovery is necessary, or where there is some other ground for equitable interference. In ordinary cases, the account for waste already committed is merely incidental to the relief by injunction against future waste, and is directed upon the principle of preventing a needless multiplication of suits.

Some of the ancient cases restrict the tenant within very narrow limits, as to his right to alter or improve the premises held by him without subjecting him to an action of waste, or to a forfeiture of the estate. It was for a time questionable whether a tenant or a copy holder could erect a new building upon the premises, without subjecting himself to a loss of the property. (See Ward’s case, 4 Leon. 241; Gray v. Ulysses, 2 Dyer, 211, b. note; Paston v. Utberts, Littleton’s R. 264; Hutton, 102, S. C.; Cecil v. Cave, 2 D’Auver’s Abr. 194; 2 Roll’s Abr. 815 ; Coke Litt. 53, a; Keilwey, 38; Darcy v. Askwith, Hobart’s Reports, 234.) But whatever doubts may have formerly been entertained on this subject, I have no hesitation in saying, that by the law of this state, as now understood, it is not waste for the tenant to erect a new edifice upon the demised premises; provided it can be done without destroying or materially injuring the buildings or other improvements already existing thereon. I admit he has no right to pull down valuable buildings, or to make improvements or alterations which will materially and permanently change the nature of the property, so as to render it impossible for him to restore the same premises, substantially, at the expiration of the term. But to apply the ancient doctrines of waste to modern tenancies, even for short terms, would in some of our cities and villages put an entire stop to the progress of improvement, and would deprive the tenant of those benefits which both parties contemplated at the time of the demise, without any possible advantage to the owner of the reversion. The modern cases as to the right of the tenant to remove fixtures, or even some lands of buildings erected for the purposes of trade or manufacture, show the change which has 'gradually, if not imperceptibly, taken place in the law upon this subject. And upon the principles of these modern cases, it cannot be waste to make new erections, upon the demised premises, which may be removed at the end of the term without much inconvenience, leaving the property in the same situation it was at the commencement of the tenancy; and the materials of which new buildings, if left on the premises, would more than compensate the owner of the reversion for the expenses of their removal. That is the nature of the building which the defendant is about to erect on the rear of this lot. And if the landlord insists upon its removal at the end of the term, the lessee will undoubtedly be pleased to obtain such a privilege, which most tenants are anxious to secure by an express stipulation in their lease.

Even if the new edifice is permitted to remain, the complainant will not be compelled to use it as a livery stable. He may, at the end of. the term, convert it to some use which will be more agreeable to the tenants of the adjacent lots, and to the occupant of the house upon the front of this.

The complainant is not entitled to an injunction; and the order to show cause must be discharged, with costs.


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    Sawyer vs. Sawyer.
    May 1.

    A bill can only be taken as confessed upon a personal sendee of the subpoena, except in the case of proceedings, under the revised statutes, against absent defendants ; or where the court orders the appearance of the defendant to be entered upon his being brought into court upon habeas corpus or other process.
    - Where the service of the subpoena has been upon the wife or servant of the defendant at his house or place of business, the complainant must proceed by attachment or other process to compel an appearance before the bill can be taken as confessed.
    According to the practice of this court, a bill cannot be taken as confessed upon a substituted service.
    This was an application on the part of the complainant to authorize a substituted service of the subpoena to appear and answer. The defendant filed a bill against his wife, the present complainant, before the vice chancellor of the, eighth circuit, charging her with adultery, and praying for a divorce. She appeared and put in her answer in that suit, denying the allegations in the bill, and obtained an order for the allowance of alimony. Soon after the filing of that bill, the husband left the state and went to the south, from whence he has not returned- The complainant having filed her bill in this cause before the chancellor, to obtain a divorce on her part, she asked that a service of the subpoena upon the solicitor of the husband in the other suit might be deemed good service in this cause.

      W. Kent, for the complainant.
   The Chancellor.

By the practice of the English court of chancery, substituted service of the subpoena to appear and answer,was sometimes permitted. Such substituted service,however, as to original proceedings, was generally, if not exclusively confined to suits for injunctions to stay proceedings at law, and some other analogous cases. (1 Sch. & Lef. 238. 3 Bro. C. C. 386, and 430, n.) I am not aware, however, even in those cases that the bill was taken as confessed upon such substituted service, unless the defendant caused his appearance to be entered, or he was in the custody of the proper officer of the court. But whatever may be the English practice on this subject, the revised statutes and the standing rules of this court prescribe the only modes in which an original bill can be regularly taken as confessed here. The manner of proceeding against absentees, who have no permanent residence or place of business within the state, is regulated by statute. (2 R. S. 185, art. 4.) The revised statutes also authorize the court to order the defendant’s appearance to be entered where he is brought into court by habeas corpus, or other process. And in all cases, not otherwise provided for by law, bills are to be taken as confessed according to such rules as may be established by the chancellor. (2 R. S. 179, § 73, 74.) The 23d rule of this court authorizes the bill to be taken as confessed if the defendant neglects to appear upon the personal service of the subpoena. But there is no rule authorizing such a proceeding upon a substituted service, or even upon a service on the wife or servant of the defendant at his house or place of business. Upon such a service the complainant must proceed by attachment, or other process, to compel an appearance, before the bill can be taken as confessed. (Rules 27, 28.)

In the case under consideration the court cannot compel the solicitor of the husband in the other suit to appear for him in this; and the solicitor probably has no authority to do so. The substituted service would therefore be useless; and the complainant must proceed in the usual way, by advertising under the statute relative to absent defendants.


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    _ In the matter of Lansing and others, infants.
    May 1.
    Although a husband cannot be appointed guardian to sell the estate of his infant wife, yet a third person may be appointed, with the consent of the husband, to join with him in the sale.
    A petition to sell the real estate of infants must be in the form prescribed by the 158th rule; and the master should not act upon the petition unless it is in the proper form as required by the rule.
    The master to whom the petition is presented should ascertain the ages of the infants, and the actual value of the estate proposed to be sold; and he should also ascertain and certify what is the requisite sum in which the security to each infant should be given according to the 157th rule.
    This was an application on the part of the husband of Jane E. Lansing, in behalf of his wife and two other infants, for an order authorizing a sale of the infants interest in a lot of land in the city of Troy. The petition was presented to a master, who certified thereon that the petitioner was a suitable and proper person to be appointed the guardian' for the purposes mentioned in the petition, and that the sureties offered by him were each worth the requisite sum over and above all debts; but without stating the age of the infants, or the value of their respective interests in the property, or how much that requisite sum was.
   The Chancellor.

The whole of this proceeding is irregular and improper; and the master has made this certificate without authority, as well as without examination or reflection. In the case of Whittaker, (4 John. Ch. R. 378,) Chancellor Kent decided that the husband could not be appointed guardian to sell the estate of his infant wife. And in the case of Wilson and others, (2 Paige's R. 412,) this'.court also held that the general guardian of the infants, if they had one, was the proper person to be appointed to sell their real estate, unless some sufficient reason was shown for substituting another for that purpose. In drawing this petition, the standing rules of the court have been wholly disregarded, both as to form and substance; and the master should not have attempted to act on such a petition. The caption of the petition is a violatian of the statute, and of the 10th rule of this court. The petition should also have been presented by the general guardian of the infants, if they have any; and if they had no general guardian, that fact should have been stated in the petition. And all the other requirements of the 158th rule should have been complied with. The verification of the petition should have been in the form prescribed by the 18th rule. It was not sufficient for the master to certify that the persons offered as sureties were worth the requisite sum, in the words of the rule; but he should also have gone into an examination as to the age of of the infants and the actual value of their several interests in the property, so far at least as to ascertain that the value of the property, as stated in the petition, was substantially correct. And from these data he should have ascertained and certified what was the requisite sum, according to the 157th rule, in which the security to each infant was to be given, and that each of the sureties was worth the requisite sum, over and above all debts; so as to enable the court, upon the coming in of the petition and master’s certificate, if a guardian was appointed, .to direct the proper security to be given.

The petition in this case must be dismissed; but with leave to the general guardian of the infants, if they have any, or then-next friends, if they have no guardians, to join with the husband and renew the application upon a proper petition and master’s certificate.' Although the husband cannot be appointed the guardian of his wife for the purposes of the sale, I think some third person may be appointed, with the consent of the husband, to join with him in the sale, and thus convey the interest of the wife, under the statute. The general guardian of the estate of the infant wife, if she had one at the time of her marriage, is the proper person to be appointed for that purpose.


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    Lawrence vs. Lawrence.
    May 1.
    Upon a bill filed by the wife against her husband for a separation, or limited divorce, if the next friend of the wife who prosecutes the suit is irresponsible, or insolvent, all proceedings may be stayed until security for costs in given, or a responsible person is substituted in his place; and if such security is not given, or substitution made within a reasonable time, the bill will be dismissed.
    The proportion of the husband’s estate or income to be assigned to the wife for alimony, either pending the litigation, or on a final decree for a divorce or separation, is in the discretion of the court.
    Hn fixing the amount of alimony, the court must take into consideration the nature and amount of the husband’s means, the claims of his children and others upon him for sustenance and education, and his ability to support himself by his own exertions.
    The alimony allowed to the wife for her support pending the litigation is always much smaller in proportion than that which is assigned to her aa a permanent provision, after she has established her right to a divorce or separation.
    Although it is an act of great unkindness, and of unreasonable oppression, on the part of the husband, to refuse to permit his wife to attend a particular church, of which she is a member, such refusal is not alone a sufficient ground to justify a separation.
    This was a bill for a separation, filed by the wife against her husband. On" a former day, upon the application of the wife, the court ordered the husband to advance to her next friend $50, towards the expenses of the suit, to be refunded, as the court should direct, if, upon the hearing, it should appear the suit was brought without any justifiable cause. It was also referred to a master to enquire and report what sum, if any, was necessary to be paid by the defendant for the support of his wife pending the litigation; the master, in ascertaining the sum, to take into consideration the amount and income of the defendant’s property, and the circumstances of the case, so far as the master should- deem it necessary to enquire into those circumstances. By the report of the master it appeared that the real estate of the defendant was worth $3300, and produced an annual income of about $165; that the defendant had about $500 of personal property, consisting of furniture, &c. from which no income was
      derived; that there were no children who required support from the. defendant, except one son, 17 years of age, who was engaged as a clerk in a store, and supported himself in part. The master also reported that $¡100 per annum, payable in quarterly payments, was a suitable and necessary allowance for the support of the wife, pending the litigation; and he stated the reasons upon which that opinion was founded. On the hearing before the master, the defendant offered to prove, that the morning after he turned his wife and children from his house, as stated in the bill, he invited and requested her to return, and promised to provide for her and treat her kindly; and that he also informed her that he wished the children to return. He likewise offered to prove the declarations of the wife, made since that time,-for the purpose of showing that the sole cause of the difficulties between the "parties, was, that the husband was unwilling to permit his wife and children to attend the p'resbyterian church, of which she was a member, in Stillwater, on account of some personal controversies existing between him and some of the leading members of that society.' The master decided that the testimony offered was inadmissible upon this reference ; and that by the order, he was confined strictly to an inquiry into the amount of the allowance to be made to the wife, it being admitted she was living separate from her husband. The defendant excepted to the master’s report. He also gave notice of an application to remove the next friend of the complainant. And the argument of the exceptions and of this motion came on to be heard at the same time. At the suggestion of the chancellor, the argument upon the exceptions was first heard; but at the close of that argument, and before any decision was made thereon, he directed the parties to proceed with the motion.

      J. P. Cushman, for the complainant.

      Jl. Van Vechten «$• II. P. Hunt, for the defendant.
   The Chancellor.

The application to remove the next friend of the complainant must be denied, with costs. The defendant, undoubtedly, has a right to require that the next friend of the wife who prosecutes a suit for a separation shall be a responsible person. If the next friend is insolvent, or irresponsible, the husband may apply to stay all proceedings in the cause until security for costs is given, or until a responsible person is substituted. (Pennington v. Alvin, 1 Sim. & Stu. Rep. 264.) And if such security is not given, or a new prochein amy substituted within a reasonable time, the bill may be dismissed. (Camac v. Grant, 1 Simons’ Rep. 348. 1 Paige’s Rep. 181. Idem. 644.) In this cause, however, the next friend, in addition to his own affidavit, has produced evidence which is perfectly satisfactory to the court, that he is worth at least double the amount which is prescribed by the statute, as security for costs, in those cases iri which the complainant is required to give security.

I regret to be compelled to say that a great part of the affidavits produced on the part of the defendant on this moiion are impertinent and scandalous; and I cannot conceive any object the defendant could have had in producing them, except to ruin the character of his own child, and to injure other persons who were supposed to have countenanced this suit. And if, as testified by some of his own witnesses, he' misread the affidavits to them for the purpose of making them swear to matters they did not believe to be true, he has been guilty of a misdemeanor; and he may be punished criminally, for attempting in this manner to impose upon the court," and to pervert the course of justice.

The second and third exceptions to the master’s report are not properly taken, in point of form. They proceed upon the supposition that the master was bound to furnish the court with valid reasons for allowing the sum he has fixed upon, as alimony for the wife. The order directed the master to en-quire and report what sum, if any, was necessary to be paid by the defendant for the support of his wife pending this litigation. But he was not required to give his reasons for adopting the particular sum fixed upon by him. That allowance may be right, although the court may be satisfied the master has arrived at a correct conclusion upon erroneous principles. The first exception, therefore, which relates to the amount of alimony allowed by the master, is the only proper subject of consideration here.

The proportion of the husband’s property or income which .g apowej to (jle wjfe as alimony, either pendente lite, or after the termination of the suit, is in the discretion of the court. And in fixing upon the amount which is proper to be allowed, the court must take into consideration the nature of the husband’s means, the situation of the parties in society, the amount of the husband’s income ; and whether the same is derived from property already acquired, or from his own personal and daily exertions. It is also proper for the court to take into consideration the .question whether there are, or are not children or other relatives of the husband who have claims upon him for sustenance or education. By the practice of the ecclesiastical courts in England, the allowance to the wife, as well for temporary alimony pending the suit as for the permanent provision on the decree of separation, is settled upon what is technically called an allegation of faculties. This allegation embraces npt only a statement of the extrinsic property, but also of the casual income of the husband; and both are taken into consideration in fixing the amount. (2 Hagg. Consist. Rep. 200. 2 Phill. Rep. 44, 45.) And this court in settling the amount of alimony, also takes into consideration the ability of the husband to provide for himself and family by his own exertions. (Kirby v. Kirby, 1 Paige’s Rep. 261.) Where the amount of the estate is considerable, it is usual to allow the wife for permanent alimony, from one fourth to one half thereof, where she is not to have the custody of the children of the marriage. And in the case of Peckford v. Peckford, (1 Paige’s Rep. 274,) where there were no children to be provided for, the court allowed the wife one third of the gross value of the property, in the shape of an annuity, which was equal to ' about one half of the annual income, during her life.

But the alimony which is allowed to the wife for her support pending the suit is always allowed in a much smaller proportion than that which is assigned to her, as a permanent provision, after she has established the fact of such misconduct of the husband as to entitle her to a divorce or separation. In Biggs v. Biggs, (2 Phill. Rep. 43,) £40 was allowed for íemporaiy alimony, but upon the termination of the suit it was increased to £15, as a permanent allowance. And in Smith v. Smith, (2 Idem. 152, 235,) only one fourth of the income of the property was allowed, by Sir John Nichol, to the wife pending the suit; but upon the termination of the litigation the allowance was increased to ,£1000, or one half of the annual income. The reason of the distinction is obvious. It is the duty of the court to discourage vexatious proceedings against the husband, and, as far as possible, to prevent the indiscreet friends of the wife from fomenting family quarrels "by holding out inducements for her to institute a suit for a separation upon trivial or insufficient grounds. The husband is presumed to be innocent until the contrary is established. Bui as he has the legal control of the property out of which the wife must be supported during the litigation, whether she be right or wrong in the prosecution of the suit, and as that can only be settled at the final hearing, the court, from the necessity of the case, must allow her the means of subsistence in thé mean time. In that case, however, the court should, in the exercise of a sound discretion, interfere xvith the property with great caution, and deal it out to the wife much more sparingly than it is proper to do after the termination of the suit. If she succeeds in establishing such improper conduct on the part of the husband as to entitle her to a divorce or separation, she is entitled to a portion of the property as a right founded upon his violation of tire marriage contract. And tlxe allowance for alimony, in that case, should not only be liberal, but in some cases, for the preservation of public morals, it should be ample.

The master made a mistake in supposing he had no right,, under the order of reference, to enquire whether the circumstances of this case were such as to justify the wife in leaving the house of her husband. It is always necessary to know something of the real nature of the controversy in cases of this kind, for the purpose of ascertaining what is proper to be allowed. And it was the intention of the court to authorize th® master, in his discretion, to receive such testimony as might give him the desired information on that head; but without going into a full examination of the witnesses on either side any further than he might deem necessary. I am satisfied, however, from the affidavits that have been produced on the motion to change the next friend, that this is not a case in which any good can result from an examination of witnesses, to the merits, with a view to regulate the exercise of the discretion of the court in making this allowance of alimony. And if the facts now before me had been presented to the master, I think he could not, in the exercise of a proper discretion, have gone into an enquiry which would have produced no beneficial result.

I have already had occasion to express my opinion, that if the allegations of the husband are true, that the sole cause of this family rupture was his unwillingness to permit his wife to attend a particular church, the wife should not have separated from him on that ground alone. Although it was an act of great unkindness and of unreasonable oppression on the part of the husband to use his marital power in separating his wife from the church of which she was a member, and with which she preferred to worship, I have no hesitation in saying that she mistook her duty in not submitting to the oppressor, if she could not win his consent by kindness and condescension, rather than place herself and her companion, “ in the undefined and dangerous situations of a husband without a wife and a wife without a husband.” A Christian wife and mother should suffer much and long before she can be justified in resorting to the doubtful and dangerous expedient of a suit fora separation. And those who attempt to advise in such a case should recollect that the blessing of Heaven is promised tó the promoters of peace and good will in neighborhoods and families, as contradistinguished from those who fan the flame of discord or sow the seeds of strife.

From the statement of the defendant’s property and the income thereof, there is probably not enough to support the husband and the wife, without breaking in upon the.capital, except by the aid of their own exertions. I presume, however, that this income, divided between them, will be sufficient for that purpose ; in addition to what each can earn by such labor as they were in the habit of performing before the separation. As the parties probably stand upon an equality in this respect, the master went too far in allowing the wife nearly two thirds of the income of the property for her own personal support pending the litigation. I think if she is allowed a moiety, after making a proper deduction for taxes and other incidental expenses which must of necessity be borne by the husband, it is as much as she can reasonably claim, until the rights of the parties are settled by a decree.

The husband must pay the wife at the rate of $75 per annum, in equal quarterly payments from the 20th of December last; and neither party is to have costs upon these exceptions.


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    Bolton vs. Gardner.
    Where fraud or other circumstances are charged in the bill, to avoid a release, the defendant pleading the release must, by proper negative averments in his plea, deny the allegations of fraud, &c. and must support his plea by a full answer and discovery as to every equitable circumstance charged in the bill, in avoidance of such release.
    As to matters which are not alleged to be the defendant’s own acts, or to be within his personal knowledge, it is sufficient, if the defendant in his negative averments denies the facts charged, upon Ms belief only; but he must so frame Ms averments that the complainant can put the facts in issue by a replication.
    It is sufficient, if the defendant in his answer in support of such plea, denies the equitable circumstances stated in the bill, according to Ms knowledge, information and belief.
    If the defendant answers as to any matters covered by Ms plea, he overrules the plea.
    Whether a trustee can support a release from Ms cestui que trust, founded upon a consideration grossly inadequate, although no actual fraud was intended? G-utere.
    Such trustee should, at least, be required to show, either that he was treating with the cestui que trust for a settlement at arms length, or that previous to receiving the release he gave the cestui que trust a fair statement of the amount of the trust property.
    Where the complainant sues in forma pauperis, the costs upon overruling the defendant’s plea, on the ground of its informality, are not to be paid to the complainant if the defendant finally succeeds in his defence.
    An appellant is not allowed to prosecute an appeal as a poor person, but he must give security for costs; and therefore if he succeeds on the appeal, he is entitled to dives costs on the appeal, although he sued informa pauperis in the court below.

      May 15.

    The bill in this cause was filed by the administratrix of J. Bolton, deceased, to obtain the distributive share of the decedent in the estate of A. McLachlan, his half brother. The bill charged that McLachlan died in January, 1819, leaving a large personal estate, and that the defendant D. Gardner, who married his sister, administered thereon; that in February, 1821, Bolton received a letter from the defendant S. 8. Gardner, a brother of D. Gardner, requesting him to call and see him relative to the estate of McLachlan; that Bolton called accordingly, and S. 8. Gardner told him he was .entitled to some portion of the estate, and that as the agent of his brother, the administrator, he wished to settle it with him, and he referred him to S. Miller, thé surrogate, for further information ; that Bolton called on Miller, who advised him that he was entitled to about seven or eight hundred dollars out of the estate of McLachlan, but that as the administrator was a liberal ■man, he thought it probable he would give him a thousand dollars.; that Miller offered to undertake the business and obtain the money for him.for a fee of $50, to which Bolton agreed; that a few days afterwards Bolton met Miller and 8. 8. Gardner, by appointment, at the office of the latter, where Bolton agreed to accept $1000 for Ms share of the estate of McLachlan ; and that he then executed a release or assignment of his interest therein to D. Gardner, on receiving $950, the remaining $50 being paid to Miller as his fee. The bill further charged that Bolton, at the time of executing the release and assignment, was wholly ignorant of his rights as one of the next of kin of McLachlan, and that he was also ignorant that Miller was the counsel of D. Gardner, which he subsequently ascertained to be the case ; that during the negotiation Boh ton did not see any statement of the personal estate of Mc-Lachlan, nor was he informed of its value, or of Ms rights therein, either by'Gardner, or by Miller, but that he was induced to sign the release and assignment by the representations made to him by 8. S. Gardner the solicitor, and Miller the counsel of D. Gardner-; that if Bolton had known the amount of the personal estate of McLachlan, and of his interest therein, he would not have released such interest for $1000, which the jcomplainant averred was less than one fifth of his just distributive share of the estate, and to which he was entitled as one of the next of kin. The complainant therefore insisted that the release and assignment were void, by reason of this fraud and.imposition ; and that she, as the personal representative of Bolton, was entitled to one fourth of the personal estate of McLachlan, deducting therefrom the $950 received from Gardner. The bill further stated, that D. Gardner had not filed an inventory, and that he had refused to exhibit to Bolton in his life time, or to the administratrix since his death, an account of the estate; that at the time of executing the re- ' lease and assignment D. and 8. S. Gardner and Miller well knew that $950 was not one fifth of the distributive share of Bolton in the estate of McLachlan ; that they then also knew that Bolton was ignorant of his rights, and of the proportion of the estate to which he was entitled; and they did not produce or show to him any statement or inventory of the estate. The bill prayed that the defendant D. Gardner might set forth an account of the personal estate of McLachlan which had come to his hands as administrator, &c. and of the administration thereof; and that he might be decreed to pay to the complainant the distributive share of such estate to which she was entitled, as the personal representative of Bolton; and for general relief.
    The defendant D. Gardner, as to so much of the bill as sought for a discovery or account of the estate of McLachlan, and of the administration thereof, and as to all the relief sought by the bill, pleaded in bar the release and assignment executed by Bolton, in February, 1821. He averred in his plea that it was not true, to his knowledge or belief, that Bolton, at the time of executing the release, was wholly ignorant of his rights as one of the next of kin of McLachlan ; that Miller was not at that time his counsel; that Bolton was, according to his belief, informed of the value of the- estate, and of his rights and interest therein; that the sum of $1000 was not less than one fifth of his distributive share of the estate to which he was entitled as one of the next of kin; that the release was not procured by the contrivance and management of 8. S. Gardner and Miller, and by false and untrue representations ; that it was not true that either the defendant S. S. Gardner or Miller knew, at the time of making the release, that $950 was not one fifth of Bolton’s share of the estate, or that-it was far less than his distributive proportion thereof; or that they knew he was ignorant of his rights and of the proportion of the estate to which he was entitled. The defendant further averred in his plea, that he could not state whether S. S. Gardner and Miller produced and exhibited to Bolton any inventory or statement of the property at the time of the execution of the release; but that the defendant was informed and believed that S. S. Gardner did at that time state to Bolton and Miller the amount of the estate of McLachlan. There were also some other informal averments in the plea as to other matters stated in the bill.
    The plea was accompanied by an answer, admitting most of the allegations in the bill relative to the original right of Bolton to a distributive share of the estate of McLachlan ; and containing a general denial, according to the defendant’s knowledge, information and belief, as to most of the circumstances stated in the bill, as evidences of fraud or imposition, to avoid the release. The defendant also denied, in his answer, that the sum of $1000 paid to Bolton on the execution of the release, was less than one fifth of his distributive share of the estate; and he alleged that according to his belief, it was fully equal to what he was rightfully entitled to. He also alleged that he filed in the office of the surrogate an inventory of the estate of McLachlan, in February, 1819 ; which inventory he averred to be in all respects just and true, except that after the filing of the inventory, he received eleven volumes of books and $132,81, belonging to the estate, which came to his knowledge after the filing of the inventory. He also denied that Miller was his-counsel at the time of the execution of the release ; but admitted he had since been informed, and that he believed Miller previous to that time had, as his counsel, signed a plea put in by him, the defendant, to a bill filed by Jane Harness relative to the estate ; but that the name of Miller was affixed to the plea without the knowledge or approbation of the defendant.
    Upon argument before the late vice chancellor of the first circuit, the plea was allowed ; with liberty to the complainant to reply to the same within ten days, or in default thereof, that her bill be dismissed. From this decision the complainant appealed to the chancellor.

      F. B. Cutting, for the complainant.

      D. B. Ogden, for the defendant.
   The Chancellor.

Several objections are made to this plea which are merely formal; but the principal objection is that it is pleaded in bar to the discovery of what the complainant’s counsel considers a material fact to destroy the defence arising out of the release and assignment of Bolton. I believe the answer is sufficiently full as to all the matters of the bill not professedly covered by the plea. Whether the plea does not cover the discovery of some facts as to which the complainant was entitled to an answer, I shall presently consider. The rule which requires an answer in support of a plea, in certain cases, does not render it necessary that the defendant should deny positively, in the answer, matters of which it cannot be presumed he has any personal knowledge. Where fraud or other circumstances are charged for the purpose 6f avoiding a release, the defendant pleading the release must, by proper negative averments in his plea, deny the allegations of fraud, &c. and must support bis plea by a full answer and discovery as to every equitable circumstance charged in the bill to avoid the bar. (Mad. & Geld. Rep. 64. 2 Ves. & Beam. Rep. 364.) But in the case of negative averments as to matters not alleged to be the acts of the defendant, or where, from the nature of the case, he cannot be supposed to have any personal knowledge of the subject, it is sufficient for him to deny the facts charged, upon his belief only. (Drew v. Drew, 2 Ves. & Beam. 159.) The defendant, however, must be careful so to frame his averments that the complainant may put the facts in issue by a replication. And where the negative averments in the plea are permitted to be made upon the belief of the defendant, it will be sufficient for him, in the answer in support of such plea, to deny the equitable circumstances stated in the bill, according to his knowledge, information and belief only.

One objection which is urged by the complainant’s counsel to the form of the plea in this case, is that some of the averments therein professing to negative the charges in the bill, are no{ direct and issuable, but are involved and argumenta- ' tive. I am inclined to think this objection is well taken. One of those averments commences thus: “ And this defendant further avers, that for the reasons in his answer particularly set forth, he cannot say whether or not,” &c. concluding with two or three involved exceptions, and embracing in a parenthesis another distinct averment of ignorance. This mode of denying an allegation in the bill might not perhaps be deemed objectionable in an answer, where every allegation not admitted by the defendant is put in issue by the formal traverse at the close of the answer. But it is bad in a plea where the negative averments must tender an issue, directly.

Another objection to the plea is that it is overruled by a part of the answer. The defendant, by his plea, objects to answering any allegations in the bill which call for a discovery as to the situation or amount of the estate of McLachlan, which has come to his hands as administrator; yet he does answer in part as to those matters. He alleges,’ in substance, that the inventory filed by him in the office of the surrogate contains a just and true account of the estate which had come to his hands, except eleven volumes of books and $132, which came to his hands afterwards. He also states that the $1000 paid Bolton at the time of making the release was fully equal to what he was rightfully entitled to, and was not, as alleged in the bill, less than one fifth of his just distributive share of the estate. If it was necessary or proper to put these allegations in an answer in support of this plea, then it was improper to plead the release in bar of the discovery as to the amount of the estate. The defendant should have pleaded in bar of the relief merely, and have given a full discovery as to the actual amount of the estate. If the allegation in the answer, that the amount paid to Bolton at the time of the execution of the release was not less than one fifth of his distributive share of the estate, and that it was fully equal to what he was rightfully entitled to, was not necessary to support the plea, it overrules the whole plea, and constitutes a double bar. (2 Sim. & Stu. R. 281.) Taking this answer to be true, Bolton received from the defendant his full distributive share of the estate, and all he had any right to claim. This of itself is a full defence to the suit, and to the whole relief asked for by the bill.

Independent of these objections to the plea, in point of form, I think the complainant was entitled to a full discovery as to the actual amount of the personal estate of McLachlan. We have before seen that the party pleading a release which the complainant seeks to impeach upon equitable circumstances, must, in his answer supporting the plea, make a full discovery as to every material circumstance relied on to avoid the bar. One equitable circumstance relied upon here is, that Bolton understood from Miller that his share of the estate was less than $1000, whereas the complainant alleges it was more than five times that amount, and that this fact was -then known to the defendant and his solicitor. If this was so, although Miller himself was probably misinformed as to the amount, I am not prepared to say that a trustee can be permitted to support a release from his cestui que trust founded on such a gross inadequacy of consideration; although there was no actual fraud intended. I think, in such a case, the defendant should be required to show that the parties were treating for a settlement at arms length, or that he gave the cestui que trust a fair statement of the amount of the property, so far as was necessary to enable him to act understandingly in relation to his rights. Although the defendant denies knowledge of the amount of property charged in the bill, the complainant has a right to know what the property was, and when it came to the defendant’s hands, to enable the court to see whether the allegation is true.

I think the vice chancellor erred in allowing this plea; and his decision must be reversed, with the costs of this appeal. The plea is to be overruled, but without prejudice to the right of the defendant to insist upon the release and assignment, in his answer, as a bar to the relief sought by the complainant’s bill.

As the complainant is prosecuting her cause before the vice chancellor in forma pauperis, the question whether she is to receive costs upon the argument of the plea before the vice chancellor, must be reserved until the hearingj but they are not to be allowed, if the defendant succeeds in his defence. This court will not encourage the prosecution of suits in forma pauperis, merely for the purpose of obtaining the costs of interlocutory proceedings, if there is no reasonable hope of succeeding on the merits. As the complainant cannot prosecute an appeal as a poor person, and is also obliged to give security for the costs of the adverse party in such a case, it is reasonable that she should recover dives costs for the proceedings on the appeal.


text:
    Littlejohn vs. Munn.
    May 15.
    Copies of pleadings served on the adverse party should be perfect copies of the original pleadings on file, including the signature of counsel, the jurat, &c.
    A party has a right to presume that the pleading served on him is a correct copy of the one filed; and when the copy of an answer served contains neither the signature of solicitor or counsel, or if it has no jurat annexed, the complainant may apply to take the answer off the files for irregularity.
    But where the answer actually filed was correct, the defendant was allowed to serve a perfect copy thereof, upon payment of the costs occasioned by the irregularity.
    This was an application to set aside the further answer of the defendant, and to take it off the files of the court for irregularity, on the ground that it was not signed either by the defendant or by his solicitor or counsel. By the papers read in opposition to the application, it appeared that the answer as filed was properly signed, but that through inadvertence, the signatures were omitted in the copy served on the complainant’s solicitor.

      J. Edwards, for the complainant.

      H. Bleeker, for the defendant.
   The Chancellor

said, the copies of pleadings served on the adverse party must be perfect copies of the original pleadings on file, including the signature of counsel, the jurat, &c. That when a pleading was served, the party receiving the same had a right to presume it was a correct copy of the original on file, and to treat it as such. That the complainant’s counsel was therefore right in making this application; he having no information as to the mistake in the copy, and living remote from the register’s office. That the defendant’s solicit- or, as soon as he discovered the mistake, should have applied to the solicitor of the adverse party for permission to correct it; which would have saved his client from further costs.

The complainant having entered an order to take the bill as confessed, for want of an answer, that order was set aside, and the defendant was permitted to serve a corrected copy of the answer, upon the payment of the costs which had been occasioned by the irregularity.