text:
    Many vs. The Beekman Iron Company and others.
    Where the parties to a contract, for the sale and purchase of iron, intended to contract for a corlain number of tuns gross weight, at a specified price by the ton, but in reducing the contract to writing the term tons only was used, without any thing appearing upon the face of the contract to show that any other than statute tons of 2000 pounds avoirdupois were intended ; Held, that in a sail at law upon the contract,, the parlies would be precluded from showing that tons gross weight were intended; and that the party injured by the mistake might therefore file a bill in chancery to reform the written contract so as to make it conform to the actual understanding and intent of the parties to the same.
    In a contract made by the agents of a corporation, not under seal, it is sufficient to bind the corporation if it appears upon the contract that the agents who signed it intended to "contract for the corporation, as such agents, and not for themselves as individuals.
    Where the officers or agents of a corpora! ion are made parties to a bill filed against the corporation, for the purpose of compelling an answer upon oath, and tho complainant by nrstake inserts a prayer for relief against such officers as well as against the company, the officers cannot demur to the disdovery and relief generally. But they should make the discovery sought and demur to the relief; or should answer the bill generally, and then object, at the hearing, that they had been improperly made parties to the suit for relief as well as for discovery.
    The case of officers and agents of a corporation is an exception to the gen. eral rule that a person who has no interest in the subject matter of the litigation, and who is a mere witness, cannot be made a defendant in a bill in chancery. But they can only be made parties for discovery, where relief is sought against the corporation; and not where the whole relief claimed is against persons other than the corporation.
    Where the officers or agents of a corporation arc made parlies to a bill in chancery, for the purpose of obtaining a discovery of facts within their knowledge as such officers or agents, it is not necessary for the complainant to show in his bill that they alone are acquainted with the facts as to which an answer is sought. It is sufficient if it appears that the facts charged in the bill are material to the relief sought against the corporation, and arc known to the officers or agents as such ; especially if the discovery relates to transactions with them and in that character.
    Praying relief against some of the defendants in a suit as to whom the complainant is not entitled to relief but to a discovery merely, does 'not render a bill multifarious.
    Where a demurrer to a bill is accompanied by an answer, although such answer merely denies combination, and the demurrer is overruled, if the complainant wants a further answer he must file exceptions to the answer already put in.
    May 4.
    This case came before the court upon the separate demurrers of the Beekman Iron Company, and of the defendants Conklin and Hewett, to the complainant’s bill.
    The facts as stated in the bill were substantially as follows ; The Beekman Iron Company was an incorporated manufacturing association, and Conklin and Hewett were their agents to sell the productions of the furnace of the company. In September, 1835, the corporation, by those agents, contracted to sell to the complainant 600 tons of pig iron Ho. 1, made at the Beekman furnace, to be delivered at Albany, one half in 1836 and the other half in 1837, and to be paid for at the rate of $>32 a ton, in the endorsed notes of the complainant, payable on the first of May succeeding the year of delivery. And the complainant had the privilege of increasing the quantity to 500 tons instead of 300, in each year, upon giving notice to the defendants of his election to do so by the first of August in each year, which notice was given accordingly. The contract was reduced to writing and signed by the complainant and by Conklin and Hewett respectively; the part of the written agreement delivered to the complainant, commencing thus—-“We hereby agree to sell,” &c. and being signed by them as agents for the Beekman Iron Company. Under this contract the corporation, by its agents, in the course of the year 1836, delivered to the complainant 900,683 pounds of pig iron, equal to 402 t. 1 cwt. 3 qrs. 7 lbs. gross weight, or a little more than 450 tons, estimating each ton at the rate of 2000 pounds avoirdupois, according to the revised statutes; and in 1837 they delivered 445 t. 8 cwt. 1 qr. and 10 lbs., or a little short of 499 statute tons. In the course of the two years they received of the complainant endorsed notes amounting to $34,400, or the price of 950 tons of iron, at the rate of $32 per ton> as specified in the contract. And the controversy between the parties was whether, under the contract, the Beekman Iron Company were to deliver 1000 tons gross weight, or that number of statute tons, at $32 per ton. In addition to this, the complainant claimed that 30 tons of the iron delivered was of an inferior quality to that mentioned in the contract, and worth at least 25 per cent less.
    The bill alleged that the written contract was intended tobe made between the complainant and the corporation, by its agents. But that by mistake the contract was so drawn that, as the complainant was advised and believed, it was a contract between him and the defendants Conklin and Hewett as principals. In relation to the intention of the parties, whether the tons were to be estimated as gross weight, or at the rate of 2000 pounds to the ton, according to the statute, the bill alleged that although the complainant was now informed of the provisions of the revised statutes on the subject, it had been the uniform and invariable practice and usage of all dealers in iron to estimate the same by gross weight, at the rate of 2240 pounds to the ton ; that the complainant had been extensively engaged in castings since the revised statutes went into effeet, and had made large purchases of iron, and had bargained therefor by the ton without specifying the number of pounds of which the ton was to consist, and that he had always received it by gross weight under such contracts; that previous to making this agreement, Conklin'and Hewett, as agents of the Beekman Iron Company, had contracted with the firm of Many & Ward, whose successor in business the complainant was, for the delivery of iron by the ton, and that such contracts had always been performed by the delivery of 2240 pounds of iron for each ton contracted for; that the corporation, by its agents, had been in the habit of contracting for the sale of iron by the ton generally, and that such contracts had uniformly been carried into effect by the delivery of the iron at gross weight; and that at the time when the contract now in question was made, it was understood and intended by the complainant, and by Conklin and Hewett as agents of the corporation, that the iron specified in the agreement was to be delivered at gross weight, according to the uniform and well established usage of all persons dealing in the article of iron. The complainant therefore prayed that Conklin and Hewett might answer and discover whether they were not the authorized agents of the company, and whether as such agents they did not make such contract with the complainant, and whether, at the time of making such contract, it was not understood and intended that the contract should be made between him and the corporation, and that the iron to be delivered under the contract should be estimated at gross weight ; and whether it had not been the invariable practice of the corporation and its agents to sell iron at gross weight, estimating 2240 pounds for a ton, &c. And he further prayed that the written contract might be reformed by the decree of this court, so as to make it conform to the original understanding and intention of the parties, by making the corporation one of the contracting parties, instead of the defendants Conklin and Hewett; and by inserting a provision therein that the iron contracted to be delivered shall be estimated at the gross weight of 2240 pounds to the ton ; and that the Beekman Iron Company might be decreed specifically to perform the contract, as thus reformed, by delivering the residue of the iron necessary to make up the 1000 tons, or that they should pay the difference in value, and for general relief.

      Ira Harris 8? M. T. Reynolds, for the complainant.
    The contract for the sale of the iron was made upon the understanding, that the sale was to be by gross weight. We ask the court to make the contract as the parties intended it should be, and as they would have made it had they understood the legal meaning of the term ton. A mistake in an instrument will be corrected, whether it be a mistake of law or fact. There is no real distinction between mistakes of law and of fact. (1 Story’s Com. Eq. 128, 164. 1 Peters’ R. 13. 18 Wendell, 422.) But this may be said to be a mistake of fact; a mistake as to the number of pounds contained in a ton. The parties contracted for a certain quantity of iron, so many pounds ; they did not think of tons. Ignorance of the meaning of a "word, is not ignorance of law. Conklin and Hewett were proper parties. Being legally principals in the contract, they were necessary parties. (10 Wendall, 90. 13 John. Rep. 307. 1 Paige, 37. Id. 219.)

      S. Stevens, for the defendants.
    Conklin and Hewett are improper parties. They made the contract with the complainant as agents of the company. They are not officers of the company, and therefore do not come within the statute authorizing officers to be made co-defendants with the company. The mistake here charged in the bill was a mistake in law. It was a mistake as to the weight of a legal ton. No case for relief is stated against any of the defendants. The parties contracted to buy and sell so many tons of iron. And the statute fixed the weight of the tons. (1 R. S. 611, 608, § 18.) There was no express agreement to buy or sell by gross weight. The mistake was one of law only, against which there can be no relief. (1 Story’s Com. P. 129, § 115.)
   The Chancellor.

The contract in this case is not under seal, and I think as it is signed by Conklin and Hewett as agents for the corporation, it might be declared on, in an action at law, as the agreement of the Beekman Iron Company made and signed by the agents of the corporation. (Story on Agency, 143, § 154. Evans v. Wells & Spring, 22 Wend. Rep. 325.) It was not necessary, therefore, to come here to reform the contract in that respect.

The objection taken by the demurrer of Conklin and Hewett, that they are mere witnesses and ought not to be made parties, might perhaps have been held valid if their demurrer had been merely as to the relief prayed against them. But a demurrer cannot be sustained in part. And as this is a general demurrer to the discovery as well as to relief, it must be overruled if the bill is properly filed against the corporation for which they acted as the agents in making the contract with the complainant. The case of the officers or agents of a corporation forms an exception to the general rule that a mere witness, Avho has no personal interest in the subject of the suit, cannot be made a party. It is the settled laAv both in this country and in England, that in a bill against a corporation for relief, its officers and agents, who are cognizant of the facts to which it relates, may be made defendants for the purpose of obtaining an answer on oath; Avhich cannot be obtained in any other way. (Story’s Eq. Pl. 201, § 235. 1 Paige’s Rep. 37, 219. 5 Price’s Rep. 491.) The decision of Sir John Leach in the case of How v. Best 41 Hase, (5 Mad. Rep. 19,) is perfectly reconcileable Avith the uniform current of decisions on this subject. In that case an officer of the Bank of England was made defendant for the purpose of discovery as to the time wdien certain stocks were transferred on the books of the bank; and his demurrer was alloAved. It is evident, however, that the bill in that case was not filed against the bank ; but against another party, as to Avhom it became material for the complainant to ascertain the time of the transfer of stocks transferible at the bank. And as the corporation itself could not, in such a case, be made a party to the suit, the bank having no interest in the controversy, its officer was of course a mere witness and did not come within the exception to the general rule. In cases coming within the exception it is not necessary to aver, in the bill, that the knowledge of the facts sought is confined to the officer or agent of the company who is made a party, for the purpose of getting an answer on oath which cannot be obtained in any other way. It is sufficient if it appears that the facts charged are material to the relief sought against the corporation, and are known to the officer or agent who is made a defendant for the purpose of the discovery ; especially where the discovery sought relates to transactions with him as such officer or agent.

There is no foundation for the objection that the bill is multifarious. The whole cause of complaint arises out of one transaction and could not be split up into separate suits. And a prayer for relief against the agents of the corporation, which was improper if the complainant was not entitled to relief as to them, did not render the bill multifarious, or authorize a general demurrer both as to the discovery and the relief. To render a bill multifarious it must contain two or more good grounds of suit, which cannot properly be joined in the same bill, against the same defendant or different defendants. For if a good cause of complaint is joined in the bill with other allegations which could not entitle the complainant to file a bill against the defendants, or either of them, such allegations are simply impertinent; or afford grounds for demurrer to that part of the bill for want of equity. So where relief is prayed against the officers of a corporation, who are properly made defendants with the corporation for the purpose of the discovery, where the case made by the bill does not entitle the complainant to ask relief against them, such prayer does not authorize either such officers or the corporation to demur to the whole bill as multifarious. But such officers or agents may, if they think proper, answer as to the discovery sought, and demur as to the claim for relief against them j or they may answer the whole hill in the usual manner, and insist upon the objection at the hearing ; and claim that the complainant’s bill as to them should be dismissed with costs. (Varick v. Smith & The Attorney General, 5 Paige’s Rep. 160. McIntyre v. The Trustees of Union College, 6 Idem, 239.)

Upon the merits of the case I have also arrived at the conclusion that the demurrers are not well taken. The statute has prescribed what shall constitute a ton. And although the original 18th section of the title of the revised statutes relative to weights and measures, (1 R. S. 609,) does not probably apply to this case, I am inclined to think the 35th section of.that title, which declares that the hundred weight shall consist of one hundred pounds averdupois, and twenty such hundreds shall constitute a ton, would preclude the complainant, in a suit at law upon this written contract, from showing that the parties intended to contract for the delivery of the iron at the gross weight of 2240 pounds to the ton. Usage and custom may be given in evidence in a great variety of cases, for the purpose of giving a different meaning to the language of a contract from that which the words used by the parties would bear in their ordinary or primary sense. But where a positive statute has declared the meaning or legal signification of a word, in reference to its use in contracts generally, I am not aware of any case in which a court of law has gone so far as to receive parol evidence to explain a written contract, expressed in the language of the statute, by showing that the statutory term in that particular contract meant something else than that which the legislature had declared should be its meaning. The complainant would therefore find it difficult if not impossible to recover upon this contract, in a court of law, for the neglect of the defendants to deliver the number of tons of iron mentioned therein at gross weight. But if the allegations in the bill are true, there cannot be a doubt that both parties intended to contract for the one thousand tons of pig iron at gross weight; as the corporation and its agents had been in the habit of selling its iron ; and at the rate of $32 for every 2240 pounds. It is therefore a proper case for the interference of this court, to reform the written contract in such a manner as to make it express upon its face the actual agreement which both parties intended to make. The demurrers, therefore, must be overruled, with costs to be paid by the defendants respectively.

As the defendants have answered a part of the bill, denying combination, the complainant must now except to their answers for insufficiency, if he wishes for a further answer ; which I presume he does as to Conklin and Hewett who are made parties for the sake of discovery. (Story’s Eq. Pl. 535, note 2. Kuypers v. The Reformed Dutch Church, 6 Paige’s Rep. 576.) He must, therefore, have thirty days to file his exceptions to both or either of the answers, as he shall be advised. And if he excepts to the answer of Conklin and Hewett, they must put in their further answers to the exceptions within thirty days after the service of such exceptions, and pay the costs on their demurrer, or he may have an attachment against them to compel a further answer. In case he does not wish any further answer from the corporation, he must file his replication to the answer already put in within the thirty days allowed for excepting. And if he excepts to that answer for insufficiency, the corporation must answer the exceptions and pay the costs on its demurrer within thirty days thereafter, or the bill must be taken as confessed against the company.


source: Caselaw Access Project

author: The Chancellok.

license: Public Domain

text:
    Morse vs. Hovey & Thayer.
    The surety in a usurious contract has a right to set up the defence of usury to a suit brought against him and the principal debtor on such contract, and to file a bill i:\ chancery, if necessary, to establish the defence ; although the principal debtor refuses to join as a complainant in the bill. But he has no right to make the principal debtor a complainant in the suit without his consent.
    Where two persons have a common interest in obtaining relief against a joint contract, and one of them refuses to join with the other in a bill to obtain such relief, the proper course is to make him a defendant in the suit; stating such refusal as an excuse for not making him a co-complainant. And if the bill does not state such excuse the other defendants may demur.
    A bill for relief against a usurious contract can only be filed whore it is necessary to aid a defence at law, or to remove a usurious incumbrance which is a cloud upon the complainant’s title to real property, or which may be used at law to his injury, or in such a manner that he could not interpose a legal defence if he was sued thereon in a court of law.
    Where a usurious negotiable note was made before the act of 1837 repealing the provision of the revised statutes making such notes valid in the hands of bona fide holders, iteannot be transferred subsequent to the passing of that act so as to prevent the maker of the note from setting up the defence of usury.
    May 4
    This case came before the chancellor upon a demurrer by the defendant Hovey to the complainant’s bill. The object of the bill was to obtain a decree for a perpetual injunction, restraining the defendant Hovey from proceeding at law against the complainant for the recovery of a promissory note signed by the latter as the surety of the defendant Thayer, which note was alleged to be usurious, and to have such note declared void. The defendant Hovey demurred to the bill, and alleged for causes of demurrer that Thayer, one of the makers of the note, was made a defendant instead of a complainant in the suit, he having a common interest with his surety in the relief sought by the hill; and that if the allegations in the bill were true the complainant had a perfect defence at law.

      S. Stevens, for the complainant.

      S. Beardsley, for the defendant Hovey.
   The Chancellok.

The complainant, standing in the situation of a mere surety for Thayer, has a right to set up the defence of usury to the note, and to file a bill in this court if necessary to establish that defence ; although the principal debtor should refuse to join in such defence, or to become a party complainant in the bill. The surety has no right to file a bill in the name of the principal debt- or without his consent. And the only remedy in such a case is to make the party having a common interest with the complainant who wishes to file a bill for relief here, a party defendant; alleging as an excuse for doing so, that he would not consent to join as a complainant in the suit. (Calvert on Part, in Eq. 11, note 3.) No such allegation is contained in the bill in this case ; nor is there any thing stated from which it can fairly be inferred that Thayer was unwilling to join in the bill as a party complainant. I am inclined to think, therefore, that objection is well taken by this special demurrer. It is, however, an objection of form merely which the court would, of course, permit the complainant to obviate by amending his bill, upon the usual terms, and making Thayer, the principal debtor, a co-complainant; or by inserting the proper allegation that he declined to allow his name to be thus used ; or by stating some other excuse for making him a defendant instead of a complainant in the suit.

But the objection, that there is nothing in the complainant’s bill to show that be has not a perfect defence at law upon the note, is an objection which goes to the jurisdiction of the court; and such an objection, when taken in this stage of the suit, is fatal to the complainant’s right to sue here. In the case of Perrin@ v. Striker, (7 Paige, 598,) I came to the conclusion that the legislature, by the act of May, 1837, to prevent usury, did not intend to transfer to this court concurrent jurisdiction with courts of law in every case of a usurious contract; but merely to give to this court the power to exercise its jurisdiction in those cases where it was necessary to aid the defence of usury ; or to remove usurious securities which were a cloud upon the complainant’s title to real property, or which might be used at law to his injury, or in such a manner that he could not interpose a legal defence to a suit on them in a court of law. Here the note is alleged to be negotiable, so that it may be sued in the name of a third person ; and if the bill had contained an allegation that the usury could only be proved by the oath of the defendant Hovey, it might possibly have presented a case for the interference of this court. But it is not pretended in this case that the knowledge of the alleged usury is confined to the defendant Hovey and the other parties to this suit, or that any discovery from Hovey is necessary to enable the complainant to avail himself of the alleged usury as a defence in a suit at law upon the note; by whomsoever such suit may be brought. On the contrary, the complainant shows by his bill that no discovery, whatever, from the defendant Hovey is necessary to establish the alleged usury ; as an answer on oath is expressly waived. Although the note was given previous to the act of May, 1837, it cannot be transferred to a bona fide purchaser who will have the right to collect it notwithstanding the usury ; as the note had become due long before the filing of this bill, and had not been transferred previous to the first of July, 1837, when that act took effect.

The demurrer must therefore be allowed and the bill dismissed as to the defendant Hovey, with costs.


author: The Chancellor.

text:
    Hawley vs. Bradford,
    Where thó wife pledges her Separate estate, or her reversionary interest te her real property, for the debt of her husband, she' is entitled to the ordinary rights and privileges of a surety.
    But where a wife joins her husband in a mortgage of his real estate, she is not entitled to have the mortgage satisfied out of the husband’s interest in the premises exclusivelyj so as to give her dower in the whole premises notwithstanding the mortgage, and not in the equity of redemption merely.
    Thus, where the mortgaged premises arc sold under the mortgage, the wife is only entitled to be endowed of the surplus which remains after payment of the mortgage debt and costs of foreclosure/
    But she is entitled to the value of her dower in such surplus free from any charge for costs, as between her and the creditors of her husband.
    May 4.
    This case came before the court upon an exception to a master’s report in relation to the rights of the several defendants in the surplus monies upon a sale of mortgaged premises. H. Bradford, who died before the decree of foreclosure, was the original owner of the premises, and mortgaged them to secure the payment of a debt due from himself • and. his wife Jane Bradford joined with him in the mortgages. Six judgments were recovered against H. Bradford in his lifetime, which were liens upon the equity of redemption in the mortgaged premises ; amounting to more than the whole surplus raised on the sale. Upon the reference, the widow claimed the right to be endowed of one third of the proceeds of the mortgaged premises, provided the whole value of her dower, upon the principle of life annuities, did not exceed the amount of the surplus monies raised upon the sale ; on the ground -that her joining in the mortgage must be considered as a mere security for the husband’s debt. The. master decided that she was only entitled to dower in the surplus after paying the complainant’s debt and costs. And that the gross value of her dower in such surplus, upon the principles of life annuities, was $75,43 ; subject to a deduction therefrom of a proportionate part of the costs of the reference, &c.

      M. T. Reynolds, for J. Bradford, the widow.

      James McKovm, for the judgment creditors.
   The Chancellor.

It is settled law that where the wife pledges her separate estate, or the reversionary interest in her real property, for the debt of her husband, she is entitled to the ordinary rights and privileges of a surety. (Clancy’s Husb. and Wife, 589. Neimcewicz v. Gahn, 3 Paige’s Rep. 614. 11 Wend. 312, S. C.) If the same principle is to be applied to the case of the wife joining in a mortgage of the real estate of the husband, for the purpose of barring her contingent right of dower therein, the claim of the exceptant in this case must be sustained. For the equitable claim of the surety to have the mortgage satisfied out of that estate or interest in the premises -which belongs to the principal debtor alone, is entitled to a preference, over the claims of the subsequent incumbrancers to have their debts satisfied out of the same estate or interest in the premises. I am not aware of any decision, however, in which the principle of suretyship has been applied to a case like the present. And the two cases which came before my learned predecessor, Chancellor Kent, were disposed of upon the supposition that the wife who had joined the husband in a mortgage of his estate was not. entitled to have such mortgage satisfied out of the husband’s interest in the premises exclusively, so as to give her the full benefit of her dower in the whole premises, and not in the equity of redemption merely. (Tabele v. Talele and others, 1 John. Ch. Rep. 45. Titus v. Neilson, 5 Idem, 452.) Strictly speaking, the wife has no estate or interest in the lands of her husband, during his life, which is capable of being mortgaged or pledged for the payment of his debt. Her joining in the mortgage, therefore, merely operates by way of release or extinguishment of her future claim to dower as against the mortgagee, if she survives her husband ; but without impairing her contingent right of dower in the equity of redemption.

The master was, therefore, right in supposing that Mrs. Bradford was not entitled to be endowed of the whole proceeds of the mortgaged premises, but only of the surplus which remained after paying the mortgage debt and the costs of foreclosure. Upon the authority of the case of Tabele v. Tabele, however, she was entitled to the value of her life interest in one third of such surplus, free from any charge thereon, for the costs of the reference, as between her and the creditors of the husband. The exception must be allowed to that extent merely; and the report must be modified so far as it charges her portion of the fund with any part of the costs of the reference. Those costs must be paid out of the residue of the surplus fund; and neither party is to have costs as against the other upon the exception to the report. An order to distribute the surplus monies in the court, and the income, if any, which has accrued thereon, will be entered according to the principles of this decision.


text:
    Underhill vs. Dennis, guardian, &c.
    The statute which declares that no judge of any court can sit as such in any cause in which he would be excluded from being a juror by reason of affinity or consanguinity to either of the parties, docs not apply to cases where the relative of the judge has no personal interest in the subject matter of the litigation. A surrogate, therefore, may appoint a guardian for an infant, although such surrogate is a relative of the person who is appointed guardian.
    Where an application is made to a surrogate for the appointment of a guardian of an infant under fourteen years of age, he should assign a day for the hearing of the application ; and after ascertaining who are the near relatives of the infant residing in the county, he should direct notice to be given to such of them as he may deem reasonable, for the purpose of having the rights of the infant properly attended to upon the application.
    And where the application to the surrogate, to appoint a guardian, is not made by one who is nearly related to the infant by affinity or consanguinity, it is the duty of the surrogate to enquire and ascertain whether the infant has any such relatives in the county, who are of sufficient age and capacity to protect his rights and interests in the selection of a proper guardian, and in obtaining sufficient security from such guardian with reference to the nature and value of the infant’s property.
    Where the nearest relatives of the infant neither join in the application to the surrogate nor give their consent to the application, the surrogate should direct notice to be given to such and so many of them who are residing in the county as he shall deem necessary to protect the infant’s rights and interests on the appointment of the guardian. And he should enter his decision on that subject in the minutes of his proceedings ; and require the applicant to furnish evidence of the service of the notices previous to making the appointment.
    So where a relative of an infant applies to be appointed his guardian, the surrogate should make the requisite inquiries, and ascertain whether there are any other relatives of the same degree, or who are more nearly related to the infant; and should direct the requisite notices of hearing of the application to be given accordingly.
    In case the surrogate errs either in neglecting to make the proper enquiries upon an application to appoint a guardian, or in omitting to direct proper notices to be given to such of the relatives as in the exercise of a sound discretion he ought to have directed to be notified of the application, the appellate court may reveise his decision and set aside the appointment of the guardian.
    The fact that the real estate of an infant came to him by descent from his father, and not from his mother, affords no sufficient ground for giving a preference to the paternal relatives of the infant, over the maternal relatives of the same degree of affinity or consanguinity, in the appointment of guardian.
    The declared wishes of the deceased parents of an infant, in relation to the manner in which he should be brought up, and as to whose care lie should bo committed during his infancy, are entitled to much weight in deciding upon (he claim of the different relatives to the guardianship of the infant. It is not necessary in an appeal from an order of the surrogate appointing a guardian, that the appeal should be in the name of the infant as the nominal appellant. But it is proper that he should be made a party to the appeal ; especially where there is an appeal from an order of a surrogate removing a guardian, or refusing to appoint the person by whom the appeal is brought.
    Where the appeal is from an order appointing a guardian, the appellant may make the infant a party to the petition of appeal jointly with the guardian-But the making of an infant a party is not absolutely necessary in that case ; as the guardian appointed by the surrogate must be made a party, and the appellate court can protect the rights of the infant on the appeal although he is not a nominal party thereto, in such a case.
    May 24.
    This was an appeal from a decision of the surrogate of the county of Cayuga, appointing the respondent the general guardian of the person and estate of Noah W. Dennis, an infant between seven and eight years of age. The only facts which appeared upon the records of the surrogate, as stated in his return, were, that in August, 1840, C. C, Dennis, an uncle of the infant, presented a petition to the surrogate stating the death of the father, the supposed value of the property, and the age of the infant, and praying to be appointed his guardian; but without stating whether the infant had or had not nearer or other relatives in the county ; that on the same day, and without notice to any relatives of the infant, the surrogate appointed the petitioner such guardian, and took from him security for the performance of the trust; and that A. M. Underhill appealed from the order of appointment, within six months thereafter, and filed an appeal bond which was approved by the surrogate. But the petition of appeal stated, that the surrogate was a brother in law of the respondent, who was appointed guardian to the exclusion of the appellant, the maternal uncle of the infant; and that the infant had a maternal grandmother and aunt, and several paternal uncles of the half blood, residing in the county of Cayuga j none of whom had notice of the application of the respondent to be appointed such guardian. The petition of appeal also showed that the father and mother of the infant belonged to the society of Friends, and that both had, while living, expressed a wish that their child might be brought up in the same faith, and in the business or employment of farming ; that the father died when the infant was about two years of age, leaving a farm worth between four and five thousand dollars in the vicinity of the appellant’s residence ; and that the infant and his mother continued to reside in the family of the appellant until the remarriage of the mother in September, 1839; that the mother died about ten months after her remarriage, having in her last sickness expressed a desire that the appellant should be appointed the guardian of her infant son, and that he should be brought up a farmer, in the family of the petitioner, and in the religious faith of his parents; that pursuant to this request Underhill the appellant, a few days after her death, went to the office of the surrogate for the purpose of procuring himself to be appointed such guardian ; that he notified the respondent of the intended application, who thereupon went with him to the office of the surrogate and there claimed the appointment of guardian for himself; that the surrogate, after hearing the verbal statements of both parties, decided that as the estate of the infant came to him from his father, the paternal uncle was entitled to the guardianship ; and that about a month afterwards the respondent presented his petition, and procured himself to be appointed guardian, and took the child from the house of the appellant where he was previously residing, in the same family with his grandmother and maternal aunt.
    The infant was not made a party to the petition of appeal, and the respondent’s counsel therefore, insisted that the appeal should be dismissed. On the part of the appellant, however, it was contended that the statute had authorized the appeal in this form, and that it was not necessary that the appeal should be in the name of the infant: and that the surrogate, being the brother-in-law of the respondent, had no jurisdiction or authority to act upon the petition of the latter, to appoint him guardian. The appellant’s counsel also insisted, that the surrogate not only erred in the principle upon which he acted, in giving a preference to the paternal uncle of the infant, but also in making the appointment ex parte, without assigning a day for the hearing of the application, and directing notice of such hearing to be given to the maternal grandmother and other near relatives of the infant who resided in the county.

      T. Jenkins, for the appellant.

      D. Wright, for the respondent.
   The Chancellor.

I do not think the appointment of the guardian in this case was absolutely void, upon the ground of the relationship of the surrogate to the person appointed guardian. But it was a case in which the surrogate might very properly have declined acting, on that ground, and have directed the application to be made to the chancellor or vice chancellor having jurisdiction of the case. The surrogate being a mere statute officer, it is unquestionably within the power of the legislature to prohibit him from acting in any particular case. This court, however, has decided that the statute which declares that no judge of any court can sit, as such, in any cause in which he would be excluded from being a juror, by reason of affinity or consanguinity to either of the parties, does not apply to a case where the relative of the judge has no personal interest in the subject matter of the litigation, or in the decision to be made; as in the appointment of a relative of the judge to be the committee of a lunatic, &c. (In the matter of Hopper, 5 Paige’s Rep. 489.) It is unnecessary, therefore, to examine the question, whether this court can act upon the petition of appeal as an original application for the appointment of a guardian for this infant ; upon the ground that the appointment by the surrogate was absolutely void for want of jurisdiction to make it, and that an appeal was unnecessary.

I am satisfied, however, that the decision and appointment by the surrogate was erroneous, whether considered in reference to the merits of the case as stated in the petition of appeal, or to the technical regularity of the proceedings ; upon the petition of the respondent, presented to the surrogate in August, 1840, after the decision in favor of the paternal uncle had been in fact made upon the verbal and informal application of the appellant.

Where the infant himself does not apply for the appointment of a guardian, but the application is made by some relative or other person in behalf of the infant on account of his being under the age of fourteen, the statute is imperative, that the surrogate shall assign a day for the hearing of the application, and shall direct such notice of the hearing to be given to the relatives of the minor residing in the county as he shall, upon due inquiry, deem reasonable. (2 R. S. 151, § 5.) This provision, as originally enacted in the revised statutes, seems to have borne the construction that all the relatives of the infant, either by affinity or consanguinity, if they resided in the county, were to be notified of the time and place appointed for the hearing of the application ; and that the surrogate was only to decide upon the reasonableness of the notice. The act of 1837, concerning the proof of wills, &c. has modified the provisions of the revised statutes in this- respect, by declaring that the notice shall be required to be served on such relatives only of the minor as the surrogate shall direct. (Laws of 1837, p. 532, § 44.) This modification, however, does not relieve the surrogate from the duty of making the inquiry contemplated by the revised statutes ; for the purpose of ascertaining who are the relatives of the infant residing in the county, and of directing notice of the application to be given to such and so many of them as may be deemed reasonable for the purpose of having the rights of the infant properly attended to upon the application. Where the application is made by one who is not nearly related to the infant either by affinity or consanguinity, it is the duty therefore of the surrogate to inquire and ascertain whether the infant has any such relatives in the county who are of sufficient age and capacity, to protect the rights and interests of the minor in the selection of a proper guardian, and in obtaining sufficient security from such guardian in reference to the nature and value of the infant’s property. And if the nearest relatives of the infant do not-join in the application, or give their consent to the same, the surrogate should direct notice to be given to such and so many of them, who are residing in the county, as he may deem necessary to protect the infant’s interest and rights on such application. He should enter his decision on that subject in the minutes of his proceedings, and should require the applicant to furnish the evidence of the service of such notice before he proceeds to make the appointment. So where the application is made by a relative of the infant, the surrogate should make the requisite inquiries, and ascertain whether there are any other relatives related to the infant in the same degree, or more nearly ; and direct notice of the hearing of the application to be given accordingly.

Here, if the return of the surrogate is to be received as the only evidence of what took place before him, as the respondent’s counsel insists it should be, it is evident the surrogate made no inquiries, in the form required by law, to ascertain whether the minor had any other relatives of the same or of a nearer degree of relationship than the applicant. For the petition is entirely silent on that subject; and the rest of the return of the surrogate, which he- states is a correct transcript of all the records and proceedings in his office on this application, contains no evidence that the petitioner or any other person was sworn as to the existence of other relatives of the infant, in that county or elsewhere. And where the surrogate errs, either by neglecting to make the proper inquiries as to who are the relatives of the infant, or in not directing notice to be given to such of the relatives as in the exercise of a sound discretion he should have directed to be notified of the time and place of hearing the application, the appellate court may reverse his decision, and may set aside the appointment of the guardian upon that ground.

Again ; if we are at liberty to look out of the transcript, to the petition of appeal and the answer thereto, for the purpose of connecting the original application of the appellant with this subsequent appointment, so as to render it proper for the surrogate to dispense writh any further notice to the maternal relatives of the infant, who all lived together in the same family, I think there is good reason to believe the surrogate has acted upon an erroneous principle, in supposing the paternal uncle was entitled to a preference over the maternal relatives standing in the same degree of relationship to the infant. The fact that the real estate, which constituted all or nearly all of the infant’s property, came to him by descent from his father, and therefore would go to his paternal relations in case of his death under age and without issue, affords no grounds whatever for giving a preference to the paternal relatives in the appointment of the guardian. On the other hand the expressed wishes of both of the deceased parents of the infant, that he should be brought up a farmer, under the care or guardianship of the maternal uncle, in whose family he had lived four or five years, was a circumstance which certainly should not have been overlooked by the surrogate in deciding upon the relative claims of the parties to the guardianship. And if we add to this important fact, that by the appointment of the maternal uncle the infant, during his tender years, would in all probability also have the benefit of the fostering care of his maiden aunt and his widowed grandmother, who constituted a part of the family of the appellant, it is difficult to conceive how the surrogate could have arrived at the conclusion that the appointment of the paternal uncle as guardian would he more beneficial to the infant than the appointment of the appellant; independent of the expressed desire of both parents of the infant that he should be educated in the religious belief in which they lived and died. I think, therefore, the surrogate must have acted on the erroneous supposition, stated in the petition of appeal, that the descent of the property from the father of the infant gave a legal preference to the paternal relatives in the appointment of a guardian of his person and estate.

The statute having authorized any person interested in the allowance or appointment or removal of a guardian, as next of kin or otherwise, to appeal from the decision of the surrogate, it is not absolutely necessary that the appeal should be in the name of the infant as the nominal appellant; nor that the appellant should have any pecuniary interest, in the appointment or removal of the guardian, to entitle him to institute an appeal in his own name. It is proper, however, that the infant himself should be made a party to the appeal; especially where the appeal is from an order of the surrogate removing a guardian, or refusing to appoint the person by whom the appeal is brought. (Kellinger v. Roe and others, 7 Paige’s Rep. 362.) Even where the appeal is from an order appointing a guardian, if the infant does not himself appeal by his next friend, the appellant may make him a party to the petition of appeal, jointly with the person appointed as guardian by the surrogate. But in that case, as the guardian himself must be made a party, there does not appear to be any absolute necessity for making the infant a party also. For the court may appoint some suitable person to protect his rights, if necessary, although he is notanominal party to the appeal.

The decision of the surrogate, making the ex parte appointment of the respondent as guardian, without notice to the grandmother of the infant, who was his nearest of kin residing in the county, must be reversed. And it must be referred to the injunction master of the seventh circuit to inquire and report who will be the most proper person to be appointed the guardian of the person and estate of the infant; and to ascertain and report the amount of the personal estate and the value of the real estate, and also the annual value of the rents and profits of the real estate of the infant; and to approve two sufficient sureties of the guardian in double the amount of the personal estate and of the gross value or amount of the rents and profits of the real estate during the minority of the infant. And the master is to summon before him and examine the grandmother of the infant, and such other relatives and witnesses as he may think proper, or as either of the parties to the appeal may require, in relation to the subject matter of such reference. Upon the coming in and confirmation of the report, either of these parties, or any other relative of the infant, may apply for such further directions as may be proper in the premises. And until the final decision upon the appointment of the guardian, the infant must be placed under the care and protection of the appellant, as he was previous to the appointment of the guardian by the surrogate. The question as to the costs on the appeal is also reserved until the coming in of the master’s report; which report" either party is to be at liberty to except to within eight days after notice that it is filed.

         See Witty v. Marshall, (23 Legal Observer, 125,) decided in November, 1841; where V. C. Knight Bruce said the declared will of the deceased father should have been followed in the religious education of the ward.


text:
    Crippen vs. Heermance.
    Where the purchaser of land* under a. contract payable by instalments, had paid the principal part of the purchase money, but being unable to pay a portion of the last instalment, which bad become due, applied to ibe vendor for an extension of Ihc time of payment a few months, which the latter refused unless the purchaser would consent to re-purchase the land and pay therefor $300, in addition to the $710 due upon the contract, and the vendor thereupon gave a deed for the land and took back a bond and mortgage for the whole amount due, including the §300 and interest $
    Held, that the pretended re-sale was a mere cover for obtaining more than legal interest for the forbearance of payment of the $710, and that the bond and mortgage were, therefore, usurious and void. Held also, 1 hat the bond and mortgage being void for usury, the original debt was not merged therein, but remained an equitable lien upon the land, as a part of the purchase money due upon the first contract.
    Parties may so frame a contract for the sale of land as to make the time of payment a material part of the agreement’. And where, from the terms of the contract, it appears that the parties thereto intended that the pur* chaser should not have the land unless the purchase money was actually - paid at the day specified in such contract, if the money is not paid a court of chancery will not decree the performance of the contract.
    Whether in cases where the time of payment of the purchase money is made an essential part of a contract for the sale of land, a court of equity will permit the vendor to enforce a forfeiture of the part of the purchase money which has actually been paid, if the vendee neglects to pay the residue at the day agreed upon by the parties, by retaining both the land and the money paid therefor; Quaere ?

    Where both parties to a suit in chancery claimed what they were not entitled to, and each had succeeded as to a part of the matters in litigation between them ; Held¡ that neither was entitled to costs as against the other.
    May 24.
    This was an appeal from a decree of the vice chancellor of the eighth circuit. The hill was filed to foreclose a mortgage, and the defendant set up the defence of usury.
    The facts of the case, as they appeared from the pleadings and proofs, were substantially as follows ; In the spring of 1836, the complainant and his brother, being the owners of a farm in the town of Penfield, contracted to sell the same to the defendant, for $2400. One fourth of the purchase money was paid at the time of the execution of the contract, and the residue, with interest, was to be paid in the month of October thereafter ; upon payment of which the defendant was to have a deed of the farm. When this last payment became due, the purchaser could not obtain the money to pay it, and the time of payment was extended by agreement of the parties, until April, 1837 ; in consideration of which extension the defendant paid the vendors fifty dollars for their supposed damage in not receiving their money when it became due. On the 10th of April the defendant paid the further sum of $600 towards the purchase money of the farm, and got a further extension of the time, to pay the residue, until the 24th of the same month. He, at that time, made another payment of $600 ; leaving due upon the contract, for principal and interest, about $710. It was then agreed that a deed of the farm should he made by the vendors and left in the hands of a third person, to be delivered to the defendant upon the payment, by him, of the residue of the purchase money ; which he was to pay in the course of a few days. The defendant finding he could not make such payment at the time fixed upon for that purpose, entered into a negotiation with the. complainant to postpone the payment until the first of September ; which the latter agreed to do for the additional sum of $300. The complainant thereupon settled with his brother for his interest in the contract; and delivered the deed to the defendant, and took from him a bond and mortgage for the balance of the purchase money and interest, and including the additional sum of $300. In the course of this negotiation the complainant declined extending the time unless the defendant would agree to buy the farm again, and give this further sum therefor. And upon the ground that the complainant supposed he had a right to do so, the vice chancellor decided the bond and mortgage were not usurious -} and decreed a foreclosure and sale of the premises for the whole amount of the bond and mortgage, and the costs of the suit.

      Ira Bellows, for the appellant.
    0. Hastings, for the respondent.
   The Chancellor.

I think the vice chancellor erred in supposing the $300 included in the bond and mortgage in this case was not in fact an usurious premium, for the forbearance of the payment of the $710, for the term of four months, in addition to the legal interest. Although the parties agreed to call the transaction a resale of the farm, it is evident that it was a mere device to evade the usury law ; by calling that a resale which was in fact an agreement for the forbearance of payment for four months, at the enormous rate of interest of more than one hundred and twenty per cent per annum. The evidence of Isaac Crippen, as well as that of Cherry, clearly shows that the defendant applied for an extension of the credit, or the forbearance of the payment of the balance due, for a few months. The answer of the complainant, that he could not fix it so as to wait on him the desired time without making a new sale of the land, shows that a nominal resale was considered necessary to clothe the transaction in a legal garb ; instead of permitting it to appear in the form of a mere naked agreement to pay the $300, with interest thereon, as a usurious premium for the forbearance of the balance then due. The statute against usury, however, reaches indirect as well as direct agreements to obtain more than seven per cent for the loan or forbearance of money. And that statute would be worse than useless if the very thin covering, which wras attempted to be put upon this transaction, was sufficient to conceal the real features of the agreement from the searching eye of a court of justice.

Parties may so frame a contract of sale as to make time a material part of the agreement. And where, from the terms of the contract, it is evident that the parties intended the purchaser should not have the land contracted for unless the purchase money was actually paid at the day specified in the contract, a court of equity will not enforce the performance of a different agreement, which neither of the parties ever intended to make. But it cannot be considered as settled law, even in cases of that kind, that where three-fourths of the purchase money has been paid, as in this case, the court of chancery will permit the vendor to enforcethe forfeiture, for the non-payment of the residue at the precise day agreed upon ; and thus to retain both the money and the lane!, where it would be unconsc.ientious for him to do so. (See Wells v. Smith, 7 Paige’s Rep. 22. Harris v. Troup and others, 8 Idem, 423.) In the present case, however, no such question can arise; as there was nothing in the terms of the contract making the punctual payment of the money at the day an essential part of the agreement. In equity, therefore, the farm was the property of the defendant; and the complainant merely held the legal title as security for the payment of the balance of the purchase money which remained unpaid. The agreement then to fix it so as to obtain the additional sum of $300 beyond the legal interest, for the forbearance of the payment of that balance for the term of four months, by reselling the farm at $1010, with interest thereon, wTas usurious; and the bond and mortgage taken in pursuance of that agreement were illegal and void.

The balance of the original purchase money, with interest, however, was a lien upon the farm, and still remained due 5 although that lien would have been merged in the bond and mortgage if the subsequent agreement had been valid. (Williams v. Allen, 7 Cowen, 316. Hughes v. Wheeler, 8 Idem, 77.) And the complainant having purchased his brother’s interest in the original contract he is, in this court, entitled to recover that balance in his own name. He has, therefore, a right to a decree for the payment of the $710,18, and interest from the 4th of May, 1837 ; and if the same is not paid, to have the premises sold to satisfy the debt.

The decree appealed from must be reversed without costs to either party on the, appeal. And a decree must be entered directing the defendant to pay the balance due on the original agreement, with interest as aforesaid, within thirty days; or in default of such payment, that the premises be sold, by a master, to satisfy such balance, upon the usual notice as in mortgage cases ; and directing a delivery of possession to the purchaser at the master’s sale, &c.

If the complainant had only claimed the balance of the original purchase money and interest, I should have charged the costs of the suit upon the defendant, who had neither paid, nor offered to pay, what was legally and equitably due. But as a claim is made by the bill for the usurious premium also, and upon a statement which made it necessary for the defendant to put in an answer and go into proof of the facts, both parties are in the wrong ; the complainant in claiming the usurious premium agreed to be paid for the forbearance of the purchase money, and the defendant in resisting payment of what was really due. Neither party, therefore, is entitled to the costs of the litigation thus far, as against the other. But if the $710, and interest, is not paid within thirty days after service of a copy of the decree upon the defendant, or his solicitor, the costs of enrolling the decree, and of all subsequent proceedings thereon, must be paid by the master out of the proceeds of the sale. Upon the payment of the" amount due, either by the defendant or by a sale of the premises, the usurious bond and mortgage must be delivered up and can-celled on the record, by the complainant.

No question was raised by the answer as to the payment of the $50 in the fall of 1836 ; the question, therefore, does not properly arise here whether that sum also was not received as an usurious premium for the forbearance of payment until the next spring. For that reason no deduction is made of that $50, from the amount which the answer admits to have been due upon the contract at the time of giving the bond and mortgage.


text:
    Thomas and others vs. The Merchants’ Bank and others.
    A judgment against a foreign corporation, founded upon an attachment of its corporate property, is a proceeding in rem against the property attached ; and is not a judgment upon which an ordinary creditor’s bill can bo founded, upon the return of the plaintiff’s execution unsatisfied.
    After the property of a foreign corporation lias been transferred to a receiver, for the benefit of the creditors of the corporation, and the tillo thereto has become vested in the receiver under an order of the court of chancery of the state whore the corporation is situated, such property cannot be reached by an attachment in this state, as the property of the corporation.
    Where the sheriff, upon an attachment against a foreign corporation, returned that ho had given notice of the attachment to the cashier of a bank, without stating that he had attached any thing, or that the bank held any property of, or was in any way indebted to such foreign corporation ; Held, that the return was not sufficient to entitle the plaintiff to a judgment which would reach notes of the foreign corporation which had been depos. ited in such bank for collection.
    May 24.
    This was an appeal from a decision of the vice chancellor of the first circuit, denying an application for an injunction. The complainants were creditors of the Manufacturers’ Bank at Bellville, in the state of Mew-Jersey, a foreign corporation; and had obtained judgments against that corporation, upon proceedings against it by attachment, in the supreme court of this state, under the fifteenth section of the article of the revised statutes relative to proceedings against corporations in courts of law. These attachments were issued on the 10th of April, 1839, and were, on the 12th of that month served upon- the Merchants’ Bank, without in fact attaching any thing • but merely by giving notices to the cashier of the issuing of such attachments, and requiring him to keep in his possession any property belonging to the corporation against which they issued, towards satisfying those attachments. And the only returns which the sheriff made to the supreme court were as follows: a Grave notice of the within attachment to O. J. Cammann, Esquire, cashier of the Merchants’ Bank.” Upon these returns the plaintiffs proceeded and obtained judgments by default against the defendant in those suits $ and afterwards issued executions on such judgments, which executions were returned unsatisfied. On the 8th of April a bill was filed in the court of chancery of the state of New-Jersey, alleging that the bank at Belleville had stopped payment. And on the 9th, and before the attachments were issued to the sheriff of New-York, the chancellor of that state appointed receivers of the property of that institution j who, according to the laws of New-Jersey, as stated in the affidavits on the part of the defendants, thereby became vested with the title to all the estate and property of that corporation. At the time the attachments were issued, there were in the Merchants’ Bank five notes and drafts which the bank at Belle-ville had sent there for collection ; one of which was afterwards paid, and the rest were protested for non-payment. It appeared, however, by the affidavits on the part of the defendants, that the notes and drafts were all deposited with the bank at Belleville, by other persons, for collection merely. The bill, in this case, was filed against the Merchants’ Bank and the receivers appointed by the court of chancery in New-Jersey, to reach the funds and securities which were in the Merchants’ Bank to satisfy the judgments. The vice chancellor decided that under the provisions of the revised statutes, previous to the amendatory act of May, 1840, the sheriff could not, upon an attachment against a foreign corporation, attach any thing which he was not authorized afterwards to sell upon the execution on the judgment which should be obtained under that proceeding against the foreign corporation ; that this court had not jurisdiction of the case to give any relief to the plaintiffs which the court in which the attachments were returnable could not give; and that considering this as an ordinary creditor’s bill, the property in controversy was vested in the receivers before the commencement of this suit, if it did not belong to the individuals w^° deposited the securities with the bank at Belleville for collection.

      S. M. Woodruff, for the appellants.

      B. W. Bonney, for the respondents.
   The Chancellor.

Without stopping to enquire whether the vice chancellor is right in supposing that no property could be attached in a suit against a foreign corporation, previous to the act of May, 1840, except such as was liable to sale on execution under the general provisions of the article of the revised statutes relative to executions against property, (2 R. S. 366, § 18, 19, 20,) I am satisfied that whatever was the proper subject of the attachment might, if attached by the sheriff, be sold by him on the execution to satisfy the judgment recovered in the proceeding upon such attachment. The statute contemplates a proceeding in rem against the property of the corporation, attached by the sheriff, and the execution only goes against that particular property. If the sheriff, therefore, had actually attached any property 'which was the proper subject of attachment so as to subject it to this proceeding in rem, he should have sold it on the execution, or have applied it in satisfaction of the. judgments. As I understand the facts, however, the sheriff neither attached these choses in action in the Merchants’ Bank, nor made any enquiries to ascertain whether there was any thing in that institution, belonging to the foreign corporation, which he could seize upon. And as he did not return upon the attachment that there was any property or effects of that corporation in the hands of the cashier of the Merchants’ Bank, the statement that he had given notice to the cashier of the attachments does not appear to be such an execution of the process as to authorize the plaintiffs to proceed to judgment in the suits thus commenced.

I also think the vice chancellor was right in supposing that if these returns were sufficient to sustain the judgments of the complainants, the property of the foreign corporation, not actually attached, cannot be reached by an ordinary creditor’s bill in this case ; not only on the ground that the attachment is a proceeding in rem merely, but also upon the ground that before the recovery of the judgments, .and indeed before the sheriff had attempted to execute the attachment, all the debts and choses in action of the foreign corporation had been vested in the receivers appointed by the court of chancery where such corporation was located. Another fatal objection to this bill, considered as a creditor’s hill merely, is that the foreign corporation, which is the judgment debtor, is not made a defendant ; and it does not appear to have been legally dissolved. Besides, there appears to be no foundation for a preliminary injunction against the Merchants’ Bank, as there is no pretence that the bank is irresponsible ; so that if the complainant succeeds in this suit, the decree against the defendants will be effectual if the monies and other property remain where they now are.

The decision of the vice chancellor must therefore be affirmed, with costs.


text:
    Gilchrist, administrator, &c. vs. Rea.
    In the taxation of costs, if the pleading or proceeding contains an excess of fifty words or more, beyond a certain number of folios, the' solicitor is entitled to charge an additional folio for such excess; but not whore the excess is less than half a folio.
    A fee to counsel for perusing and settling a final decree is taxable whenever such decree contains provisions which aie out of the ordinary course, and which arc not the usual provisions in final decrees in like cases.
    But a decree upon appeal, containing only the usual provisions that the order or decree appealed from be affirmed, with costs, is not a decree containing special provisions, which will entitle the respondent’s counsel to a fee for perusing and settling the same.
    The respondent in an appeal from the sentence or decree of a surrogate is entitled, upon taxation of his costs against the adverse party, to charge for a copy of the return of the surrogate, if such copy has been actually made for the use of the solicitor on the appeal. And one copy of the opinion of the surrogate for the use of the court upon the appeal, if actually made for that purpose, is also taxable.
    July 20.
    This was an application by the appellant for a retaxation of the respondent’s costs. It was the case of an appeal from the sentence or decision of a surrogate. Several persons were interested in sustaining the decision and order appealed from; but the appeal was only made effectual against Rea, by making him a party to the petition of appeal. The cause was submitted upon the merits, without objection ; and the court affirmed the decision as to the respondent Rea, with costs j but directed that as to any other persons having any interest in sustaining the order appealed from, the appeal should be dismissed.

      J. Crary, for the appellant.

      B. Blair, for the respondent.
   The Chancellor.

The taxing officer was wrong in al-

lowing three folios for the answer to the petition of appeal. Where the pleading or other proceeding contains an excess of fifty words or more, beyond a folio, the practice of the supreme court is to permit the attorney to charge for an additional folio ; but not to allow any thing for the excess when it is less. (Kellogg v. Potter, 11 Wend. Rep. 170.) This is the correct mode of making out and taxing costs, where the allowance is by the folio, in all courts. For if the attorney or solicitor is in some cases subjected to the loss of a fractional part of a folio where the excess is less than fifty words, it is made up to him in the increased compensation for other pleadings or proceedings where the excess is greater ; so that on the whole bill of costs, justice is done to both parties in this respect. The charge for draft, engrossing, and copies of the answer to the petition of appeal in this case must therefore be allowed at two folios only.

The copy of the case, mentioned in the bill, as I infer from the affidavits, was a copy of the return of the surrogate. If so, the respondent was entitled to charge for the copy which he procured to enable him to prepare for the argument of the cause ; for without having a copy of that return, the solicitor and counsel would be unable to ascertain what questions would arise upon the appeal. A copy of the opinion of the surrogate for the use of the court on the appeal, if actually procured and furnished on the submission, was a proper charge against the adverse party. But only one copy was taxable against the adverse party j although a copy for the use of the respondent’s counsel might be a proper charge, as between solicitor and client.

The allowance to counsel for perusing and settling a final decree which is special in its provisions, applies to all final decrees which contain provisions out of the ordinary course. A decree upon appeal containing a simple direction that the order or decree appealed from be affirmed with costs, contains no special provisions, within the intent and meaning of this clause of the fee bill; and no counsel fee for perusing and settling such'a decree is allowable on taxation. But, in "the case under consideration, the neglect of the appellant to make all the persons who were interested in sustaining the surrogate’s decision parties to the petition of appeal, rendered it necessary to make a decree out of the ordinary course, containing a special provision disposing of that part of the appeal which affected the rights of other persons, as to whom the appeal was considered as abandoned by the neglect of the appellant to make them parties by a prayer that they might answer the petition of appeal. The counsel fee was, therefore, properly allowed in this case.

The proper deduction must be made from the taxed bill, in conformity with this decision, and an order entered accordingly specifying the amount to be deducted. And neither party is to have costs as against the other on this application.


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    Siffkin vs. Manning.
    Where the defendant demurred to a part of the complainant’s bill and answered the residue, and the demurrer was overruled ; and the complainant’s solicitor inserted in the order overruling the demurrer, a provision that the complainant have leave to except to the answer already put in, if he wished to obtain a further answer to that part of the bill attempted to be covered by the demurrer; Held, that the insertion of this provision in the order did not deprive the complainant of the right to except to the answer to that part of the bill which the demurrer did not profess to cover.
    Where the defendant’s answer is accompanied by a pica or demurrer to a part of the discovery sought by the bill, if the complainant excepts to the answer before the plea or demurrer has been disposed of he admits the validity of the pica or demurrer.
    If a plea or demurrer which is accompanied by an answer to any part of the bill is overruled, the complainant should not take an order for a further answer, but merely an order overruling the plea or demurrer, with costs; and under this order, if the answer is impertinent, or if he wishes a further answer, he may at any time within twenty days file exceptions to the answer already put in, for insufficiency, or for impertinence, or for both ; so as to obtain a full and proper answer to the whole bill.
    In case he does not except within the twenty days, or within such further time as may be allowed by the court for that purpose, the answer already put in will be deemed sufficient.
    And where exceptions are filed, in such a case, they must be submitted to or referred within the same time and in the same manner as exceptions to an ordinary answer.
    The same course of proceeding must be adopted, to obtain a full and pertinent answer to the part of the bill not covered by the plea or demurrer, where such plea or demurrer has been allowed.
    July 20.
    This was an appeal from an order of the vice chancellor of the first circuit, setting aside a part of the exceptions to the defendant’s answer. The defendant demurred to a part of the allegations in the complainant’s bill and answered some other parts thereof, and the demurrer was overruled by the vice chancellor. The complainant’s solicitor, in drawing up the order, in addition to the usual direction overruling the demurrer with costs, inserted an express provision therein that the complainant have leave to except to the answer already put in, if he wished to obtain a further answer to the part of the bill attempted to be covered by the demurrer. He thereupon filed seven exceptions to the answer ; six for insufficiency and one for impertinence. When the exceptions were served on the defendant’s solicitor, -the latter gave notice that he considered the exception for impertinence and four of the exceptions for insufficiency as irregular, and not authorized by the order overruling the demurrer. But the complainant’s solicitor insisted upon the regularity of his practice ; and twelve days thereafter entered an order referring the exceptions to the exception master. The master having reported all the exceptions well taken, an application was made to the vice chancellor to set aside the exception for impertinence and four of the exceptions for insufficiency, for irregularity, with costs; -which motion was granted.

      C. Edwards, for the appellant.

      H. F. Clark, for the respondent.
   The Chancellor.

Where the answrer of the defendant is accompanied by a plea or demurrer to any part of the discovery sought by the bill, the complainant cannot except immediately to such answer, unless he means to admit the validity of the plea or demurrer j but must wait until the plea or demurrer has been argued and disposed of, and then file his exceptions both for insufficiency and for impertinence. (Mitf. Pl. 299. 2 Dan. Ch. Pr. 220, 301, and Rule 53.) Where a plea or demurrer, which is accompanied by an answer to any part of the bill, is overruled, the complainant, instead of taking an order for a further answer, as directed by the 49th rule of this court, should take an order overruling the demurrer, with costs, merely. Under such an order he may, at any time within twenty days, file exceptions to the answer already put in, either for insufficiency or for impertinence, or both ; so as to obtain a full and proper answer to the whole bill. And if he does not except within twenty days, or within such further time as may be allowed by the court for that purpose, the answer before put in will be deemed sufficient. But if exceptions are filed, they must be submitted to or be referred within the same time and in the same manner as exceptions to an ordinary answer. The same course of proceeding, substantially, is to be adopted for the purpose of getting a full and pertinent answer to the part of the bill not covered by the plea, or demurrer, where such plea or demurrer has been allowed upon argument thereof.

There could not, therefore, have been any doubt as to the regularity of any of the exceptions in the present case, if the complainant had not inserted in his order of the 29th of July, 1840, the clause expressly authorizing him to except if he wished to obtain a further answer to the part of the bill which was attempted to be covered by the demurrer.” But as it is, I think the vice chancellor erred in supposing this express reservation of liberty to except deprived him of the right which he would have had in case no such reservation had been contained in the order. The extent of the restriction which could be legitimately implied from this clause of the order was that he should not except to the answer, either for insufficiency or impertinence, unless some of his exceptions related to the matters attempted to be covered by the demurrer.

The order appealed from must therefore be reversed, with costs; and the motion of the respondent to strike out the exceptions must also be denied, with costs.


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    The Georgia Lumber Company vs. Bissell and others.
    Where the defendant is arrested on a ne exeat and the complainant takes nut a subposna and makes a bona fide attempt to serve it, but is unable to do so in consequence of the defendant's departure from the state, the want of service of the subpoena will not render the service of the ne exeat irregular, nor afford any ground for discharging the defendant from his arrest upon such no exeat.
    A defendant, upon being arrested upon a ne exeat, may immediately enter his appearance and demand a copy of the bill, without waiting for the service of a subpoena.
    July 20.
    This was an application to discharge E. Bissell, one of the defendants, from his arrest upon a ne exeat, on the ground that no subpoena was served at the time he was arrested upon the writ of ne exeat. On the part of the complainants an affidavit was produced, showing that upon the taking out of the ne exeat, the same, together with a subpoena and injunction, were delivered to the sheriff of New-York, where the defendant Bissell then was; but that Bissell left the city for the west the same day and before either could be served; that a new writ of ne exeat was immediately issued and sent to the sheriff of Erie county, to arrest such defendant if he should come into that county, which was served accordingly ; that immediately upon hearing of such arrest, the complainants’ solicitor sent a subpoena to that county, but Bissell left the state before the same could be served on him ; and that the complainants, thereupon, applied to the court and obtained an order for his appearance, within four months, as an absentee.

      J. Rhoades, for the complainants.

      S. J. Cowen, for the defendant Bissell.
   The Chancellor.

As the complainants took out a subpoena with the first ne exeat and made a bona fide attempt to serve the same, and sent a new subpoena to Erie county to be served, immediately upon learning of the arrest of Bissell on the ne exeat at that place, there was no irregularity which entitles Bissell to have the writ of ne exeat set aside. The defendant, upon being arrested on that writ was apprised of the institution of the suit against him, and might at once have entered a voluntary appearance and demanded a copy of the bill. He cannot therefore complain that he has been prejudiced by the neglect to serve him with a subpcena the moment he was taken upon the ne exeat. The petition to discharge the writ, before answer, upon the affidavit that the complainants have no valid claim against him, must therefore be denied with costs.

The defendant, however, upon entering his appearance and giving notice of the same to the complainants’ solicitor, may have the usual order that the ne exeat be discharged, upon his executing a bond in the sum of $1600, with two sufficient sureties, to be approved of by a master on due notice to the adverse party, to answer the bill and to render himself at all times amenable to the process of the court.


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    Beggs & Chester vs. Butler & Adams.
    Where several defendants are sued at law upon a joint contract a part of the defendants cannot file a bill in chancery for the purpose of enabling them to use the testimony of the others, to make out a legal defence which is common to ail of them. But if the defence is valid as to some of the defendants in the suit at law, and is invalid as to the others, and the same cannot be established except by the testimony of the defendants who have no defence to the suit, those who have a valid defence may file a bill in chancery for relief.
    Whether the real plaintiff in a suit at law, upon an usurious note, who has brought his suit in the name of another person as the nominal plaintiff, can bo compelled to testify as to the usury, under the provisions of the act of 1837 on that subject; Qnare ?
    July 20.
    This case came before the chancellor upon appeal, by the defendants, from a decretal order of the vice chancellor of the eighth circuit, disallowing their several demurrers to the complainants’ bill. The facts of the casc are correctly stated in the report of the decision before the vice chancellor, (1 Clark’s Ch. Rep. 518 ;) except that it is there said the bill was filed for discovery and relief, when in fact it was filed' for relief merely ; an answer on oath being expressly waived by the bill.

      H. A. Risley £f W. P. Mellen, for the appellants.

      C. H. S. Williams, for the respondents.
   The Chancellor.

The object of this bill is to obtain a perpetual injunction restraining the defendants from prosecuting an action at law, against the complainants, brought against them and S. Starr jointly, upon a note purporting to be made by all the defendants in the suit at lawj which action is alleged to be brought in the name of Butler, for the sole benefit of Adams as the real owner of the note, in order to avoid the defence of usury.

It is set up as one special ground of demurrer, by each of the defendants, that Starr, one of the makers of the note and one of the defendants in the action at law, ought to have been a party to this suit j and I think the objection is well taken. As the action at law is brought against all the makers of the note jointly, although upon a note which is joint and several in its terms, it is evident that if the complainants’ bill should be dismissed upon the merits, that decree would not be binding upon Starr, the other defendant in the suit at law ; and that Butler and Adams might be subjected to the expense of a double litigation, either in this court or in the court of law. The defence of usury goes to the right to recover against Starr, as well as against the present complainants as his sureties. And in the joint action which has been commenced, it is impossible to recover against one of the makers and not against the others. The decision in the case of Bailey v. Inglee, (7 Paige’s Rep. 278,) therefore, appears to be conclusive upon the question raised by this ground of demurrer. In the case of Miller v. McCan, (7 Paige’s Rep. 452,) the defence' went to the personal discharge of the surety only; and thé promise having originally been a joint one, the holder of the note was entitled to a judgment against the principal debtor, even if the surety succeeded in showing himself discharged by the giving time of payment. Here the principal debtor and his sureties had a common interest in defeating the recovery on the note which they had all signed. In such a case this court has recently decided that it is not only necessary to make the principal debtor a party to the suit, but that he must be joined as a complainant unless it appears from the bill that he refused to join with his sureties in bringing the suit in this court. (Morse v. Hovey & Thayer, ante, p. 197.)

Again ü there is nothing in the bill to show that the complainants can obtain any relief in this court which they could not as well obtain in the suit at law. There is no allegation that they have released or intend to release the principal debtor from his obligation to indemnify them against the payment of this note ; if such a release would render h’m a competent witness to establish a defence in which he had a common interest with themselves. And the complainants by their bill show that they do not come here for a discovery ; as they have expressly waived an answer on oath.

I am also of opinion that the bill is destitute of equity on another ground ; and that the complainants have a perfect defence at law in the suit instituted against them and Starr jointly. It is alleged in the bill that the note, after it was executed and made payable in one year, was altered without the knowledge or consent of Beggs, one of the makers, so as to become payable in nine months. And this allegation must, upon the demurrers, be taken to be true. No recovery, whatever, can therefore be had against him on the note j nor can a recovery be had against either of the other signers of the note in the joint suit against the three.

I am likewise inclined to the opinion that if the suit is in fact brought in the name of Butler for the sole benefit of Adams, as the real holder and owner of the note, the latter may be compelled to testify to the fact of usury, in the same manner as though he was the nominal plaintiff in the suit. The decision in Mauran v. Lamb, (7 Cowen’s Rep. 174,) proceeded upon the principle that the real plaintiff in a suit was not compelled to be a witness against himself. But the act of 1837, to prevent usury, having authorized the calling of the plaintiff in the suit to establish the defence, the real plaintiff' cannot, upon the principle of the decision referred to, claim an exemption to which he would not have been entitled if he had brought the suit in his own name, instead of attempting to commit a fraud upon the statute.

For these reasons I think the demurrers should have been allowed. The decretal order appealed from must, therefore, be reversed, without costs to either party upon the appeal. And the demurrers must be allowed and the bill dismissed with costs •, but "without prejudice to the rights of the complainants to avail themselves of any defence they may have in the suit at law, either on the •ground of usury or of the alteration of the note without the consent of Beggs, or otherwise.

         Bat see Bank of Salina v. Henry, (1 Hill’s New-York Reports, 555,) where the supreme court decided that the statute only extended to the plaintiff on the record ; and that the exemption from a criminal prosecution did not extend to a mere witness. See also Kempshall & Eggleston v. Burns, in the court for the correction of errors, December 29th, 1842.


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    Jay, executor, &c. vs. Ensign & Sherwood.
    A defendant in a foreclosure suit who does not put in an actual disclaimer, is not entitled to costs, as a matter of course, under the 133d rule of the court of chancery, although the complainant did not servo a notice, with the subpesna, that he made no personal claim against such defendant.
    A subsequent purchaser or mortgagee of the premises, who has a present and subsisting interest therein which makes him a necessary party to a bill to foreclose a prior mortgage, cannot disclaim. And to entitle such a party to costs, under the provisions of the 133d rule, he must show that he has been misled by the neglect to serve notice of the object and intent of the suit; and that his sole object in employing a solicitor was to protect himself, or to ascertain whether a personal claim was made against him, or his property which was not covered by the prior mortgage.
    July 20.
    The bill in this case was filed to foreclose a mortgage given by the defendant Ensign ; and M. B. Sherwood was made a party defendant as having an interest in the mortgaged premises, as a subsequent purchaser or otherwise. The bill was taken as confessed against Ensign for not appearing, and against Sherwood for not answering after he had appeared by a solicitor. At the time of serving the subpoena upon Sherwood, a notice was served on him stating the object of the suit, as authorized by the 133d rule ; but the notice omitted to state that the complainant made no personal claim against him. In consequence of this omission, the defendant Sherwood appeared, when the decree was moved for, and claimed his costs against the complainant.

      M. T. Reynolds, for the complainant.
    S. J. Cowen, for the defendant Sherwood.
   The Chancellor.

A defendant who does not put in an actual disclaimer is not entitled to costs, as a matter of course, under the 133d rule of this court. And a subsequent purchaser, or mortgagee, who has a subsisting interest in the premises, cannot put in a disclaimer ; which isa denial upon oath that he has or claims any right or interest in the premises against which the complainant seeks a foreclosure and sale to satisfy his prior mortgage. The object of Chancellor Sanford’s rule was to relieve the complainants, in mortgage cases, from the expense of unnecessary disclaimers, put in by defendants who W’ere merely formal parties to the suit, and against whom no personal decree was sought. And the addition to the rule, which was made in the revision of the first of January, 1830, was only intended to give the court a discretionary power, io charge costs upon the complainant ; where it appeared that his neglect to give the notice authorized by that rule had actually subjected a defendant, who had no real interest to protect in the suit, to the costs of employing a solicitor. To entitle a defendant, therefore, tcf costs under the rule, where he appears by a solicitor but does not disclaim, he must satisfy the court that he has been misled, as to the object of the suit and the relief sought against him, in consequence of the neglect of the complainant to give the usual notice ; and that his sole object in employing a solicitor was to protect himself or his property from an unjust claim which he supposed the complainant might have made against him by the bill.

In the present case there is no affidavit on the part of Sherwood to show that he was misled by this notice as to the real object of the suit. And it may be that the defendant Sherwood wras in possession of the mortgaged premises, as a subsequent purchaser, and that he employed the solicitor for the mere purpose of delaying the complainant in obtaining a decree of sale.

The application for costs is, therefore, denied. And the usual decree of foreclosure and sale must be entered ¡ with a decree over against the defendant Ensign for the deficiency, if the mortgaged premises do not sell for enough to pay the complainant’s debt and costs.


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    Germain vs. Beach and others.
    Whore upon receipt of notice of motion to dismiss a bill for want of proseen* tion, the solicitor for the complainant furnishes to the adverse party satisfactory evidence that the neglect to proceed to put the cause in readiness to take testimony arose from accident or mistake, and offers to pay the costs whicli had accrued upon the notice previous to such offer, and shows that the cause is then in readiness to take testimony, and the defendant’s solicitor refuses to withdraw his application, the court will deny the motion and not allow the applicant any costs.
    When defendants have appeared by different solicitors and some of them have suffered the bill to be taken as confessed, the complainant’s solicitor when lie gives notice that the cause is in readiness to take testimony, as directed by tile G7th rule of the court of chancery, is not required to state in such notice the names of the solicitors of-those defendants as to whom the bill has been taken as confessed.
    July 20.
    This was an application by the defendant Beach to dismiss the complainant’s bill for want of prosecution. The facts are sufficiently stated in the opinion of the court.

      R. Germain, for the complainant.

      M. Sanford, for the defendant Beach.
   The Chancellor.

The complainant’s solicitor sufficiently accounts for the delay, by showing that he mistook the practice. He supposed that his first service upon the solicitor, by putting the bill in the post office and paying the postage thereon, was not regular. In consequence of this mistake, he went through the process of serving the bill, and the notice to answer, a second time. When therefore the affidavit and other papers were afterwards shown to the defendant’s solicitor, apprising him of the mistake, and containing the information that the cause was then in readiness to take testimony, accompanied with an offer to pay the costs of the motion up to that time, such offer should have been accepted j instead of putting the complainant to the extra expense of coming here to resist this application.

The technical objection, that the name of the solicitor for the other defendants, who had suffered the bill to be taken as confessed, was not stated in the notice, is not well taken. The object of the provision in the 67th rule, requiring the names of the solicitors for the other defendants to be given, was to enable the party upon whom such notice should be served to give to the solicitors of his co-defendants notice of the application for an issue, if he wished to make such an application. It is not necessary, therefore, to give the names of the solicitors of the defendants’ against whom the bill has been taken as confessed, and who have no right to notice of the application for an issue. Here the affidavit, which was shown to the solicitor of Beach at the time of service of this notice that the cause Avas in readiness for hearing, stated that the bill was taken as confessed against all the other defendants. Beach therefore had no interest in knowing who were their solicitors.

As the complainant has been put to the expense of coming here to resist this motion, after he had done all that could be reasonably required under the circumstances, his costs in opposition to the application are an equitable offset against the costs which he offered to pay ; and Avhich offer was not accepted. The motion to dismiss is therefore denied, without costs to either party.