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    *Bay and Monell Administrators, &c., Appellants, v. Van Rensselaer and others, Respondents.
    Feb. 18th.
    The thirty days within which an appeal from the decree or sentence of a surrogate to the Court of Chancery must he entered, is to be computed from the time the same is pronounced, and not from the service of a copy thereof
    This was a motion to quash an appeal from a decree of the surrogate of Columbia. The final sentence was pronounced and entered in the records of the surrogate on the 9th of December, 1828. On the 18th of the same month a copy thereof was served on the appellants by the proctor for the respondents, and payment was demanded of the amount decreed to be paid. The appeal was not entered until the 17th of January, 1829.

      C. Bushnell, for motion.

      A. L. Jordan, contra.
   The Chancellor :—The only question in this cause is, whether the appeal should be entered within thirty days after the making and entry of the final sentence of the surrogate, or within the same time after service of a copy thereof. By the civil law, the appeal must be entered within ten days after the date of the sentence or order appealed from. (Domat’s Supplement to the Public Law, book 4, tit. 8, art. 2, note.) The time was afterwards extended by the statute 24 Hen, ch. 12. The 7th section of that Act provides that the appeal to the judge adquem shall be entered within fifteen days next ensuing the sentence. The act of the 20th of Eebruary, 1787, (1 Greenleaf’s Laws, 366,) saves to the party aggrieved by the order or sentence of a surrogate, his right of appeal to the Court of Probates, so as such appeal be taken within fifteen days next after the order or sentence appealed from be made. In the revisions of 1801 and 1813, the provisions limiting the time for appealing are substantially the same as in the act of 1787. The act of March, 1823, *which abolished the Court of Probates and substituted an appeal to the Chancellor, extends the time for appealing from fifteen to thirty days. In other respects the provision is substantially in the same .language as in the former statutes. It was not intended by any of these statutes to change the rule of the civil law, except so far as they extended the time for appealing from ten days to fifteen, and finally to thirty days from the date of the sentence or order appealed from. Although the language of the statutes have varied, there is nothing from which it can be supposed there was any intention to alter the date from which the time for appealing was to be computed. The appeal must be entered within thirty days after the sentence is made and entered by the surrogate. This appeal was entered nine days after the time allowed for appealing had expired, and being irregular it must be dismissed.


source: Caselaw Access Project

license: Public Domain

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    N. Rodgers and others v. H. Rodgers and others.

      Feb. 18th.
    An injunction bill will not be amended, unless the proposed amendments are distinctly stated to the court, and verified by the oath of the complainant; nor unless a sufficient excuse is rendered for not incorporating them in the original bill
    The application to amend must be made as soon as the necessity of the amendment is discovered.
    This was an application to amend an injunction bill without prejudice to the injunction. The grounds on which the application was denied, appear in the opinion of the Chancellor.

      S. Rodgers, for the complainants.

      H. Bleecker, for the defendants.
   The Chancellor :—The complainants apply to amend an injunction bill after answer, on the ground that exceptions to the answer have been allowed. No affidavit of the truth *of the charges contained in the proposed amendments, or excuse for not inserting them in the original bill, is furnished. The 15th rule of this court, authorizing the complainant to amend his bill of course, and without costs, on exceptions allowed to the answer, does not apply to an injunction bill, or to any other which has been sworn to by the party. Such was the construction given to the 11th rule, in Parker & Bliss v. Grant, (1 John. Ch. Rep. 434.) And in Beekman v. Waters, (3 John. Ch. Rep. 410,) where the defendant had submitted to answer exceptions, although an amendment was allowed on the particular facts sworn to in the petition, Chancellor Kent declared, that if the amendments required a new or further answer, they ought to be allowed only upon payment of costs.

A loose kind of practice in relation to amending injunction bills has crept into this court, which I am satisfied has been productive of great delay and injustice, and for which there appears to be no remedy, except by adhering more closely to the ancient practice of requiring the complainant to state the whole of his equity in his original bill. When he applies to amend without prejudice to the injunction, he must state the proposed amendments distinctly, so that the court can see that they are merely in addition to the original bill, and not inconsistent therewith. He must also swear to the truth of the several matters proposed to be inserted as amendments, and render a valid excuse for not incorporating them in the original bill; and the application to amend must be made as soon as the necessity of such amendment is discovered. (Sharp v. Ashton, 3 Ves. & Beam. 144; and Mair v. Thellusson, in note to page 145; Norris v. Kennedy, 11 Ves. 565.)

The application being defective in nearly all of these respects must be refused with costs.


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    *N. Rodgers and others v. H. Rodgers and others.
    March 3d.
    Where the equity of an injunction bill is not charged to be in the knowledge of the defendant, and the defendant merely denies ail knowledge and belief of the facts alleged therein, the injunction will not be dissolved on the bill and answer alone.
    Where a bill is filed to restrain proceedings on a judgment recovered at law, the court will not require the complainant to bring the amount of the judgment into court, unless it is shown there is danger of the complainant’s insolvency.
    This bill was filed against the personal representatives of E. Rodgers, deceased, to restrain proceedings at law on notes given to the testator. The equity of the bill on which the injunction was granted was not charged to be in the knowledge of the defendants; and they put in an answer denying all knowledge or belief as to the principal facts on which it rested. By a previous order of the court, the injunction was modified so far as to permit the executors to proceed to trial and judgment at law, without prejudice to the complainants’ rights.

      H. Bleeker, for the defendants,
    now moved to dissolve the injunction, or to modify it, by requiring the complainants to bring the amount recovered into court; or that they give security to pay the amount which might be eventually found due.

      S. Rogers, contra.
   The Chancellor :—In such a case as this, the injunction cannot be dissolved on the bill and answer alone; but the court in its discretion may require, as a condition of the granting or continuance of the injunction, that the complainants bring the amount apparently due into court, to abide the decision of the cause, unless the equity of the bill is verified by other testimony than his oath alone. (Dalby v. Catchlowe, 4 Price, 147; Taggart v. Hewlett, 1 Meriv. 499.) If there was any danger of insolvency in this case, I should require *the amount of the judgments to be brought into court, or security to be given. But the allegation of one of the defendants who appears to be a nominal party merely, that he is afraid of insolvency, or that the complainants will put their property out of their hands is not sufficient. Under the circumstances of this case, I think it would be putting the complainants to unnecessary expense and trouble to raise and deposit this large amount of money. The motion must, therefore, be refused, and the costs must abide the event of the suit.


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    Candler v. Pettit, impleaded with others.
    Where several exceptions are taken to an answer, allowed by the master, a single exception to the report insisting upon the sufficiency of the answer generally, cannot be sustained, if any of the exceptions to the answer are well taken.
    This cause was heard on exceptions to the master’s report allowing exceptions to an answer for insufficiency. The facts on which the case was decided, appear in the opinion of the court.

      R. Sedgwick and D. D. Field, for complainant.
    G. Brinckerhoff, for defendant.
   The Chancellor:—If various exceptions are taken to an answer, and allowed by the master, a single exception to the report insisting upon the sufficiency of the answer generally, cannot be sustained, if any of the exceptions to the answer are well taken. (Hodges v. Salomons, 1 Cox. Cas. 249.) If the defendant wishes to have the master’s report reviewed as to particular exceptions alleged to have been improperly allowed, he should except to the report in those' particulars, and not compel the court to go over the whole answer.

*The exception to the master’s report in this case insists upon the sufficiency of the answer generally. Without going through the various exceptions to the answer, I am satisfied that many, if not all of them, are well taken. The question whether the debts and choses in action and stock of the defendant can be reached by the process of this court, if it has not been fraudulently placed out of the reach of an execution at law, does not properly arise on this exception to the master’s report. My opinion on that question was distinctly expressed on the motion for an injunetian in this cause. But whether such relief can "be granted or not, this answer is insufficient in many particulars. It is true the defendant denies all fraud, but the complainant has a right to a discovery of the manner in which he has disposed of his property, to enable the court to see whether it is fraudulent, as well as to enable the complainant to sustain the allegations in his bill by testimony. The question as to what relief the court has power to give, will again arise on the final hearing, when all the facts are before the court; and if the defendant is not then satisfied with the decision, he will have an opportunity to bring the whole subject before the court of dernier resort. But I have no reason to believe that court will ever abandon the broad ground taken by it in Hadden v. Spader, (20 John. Rep. 554,) especially since the legislature have expressly sanctioned the principles recognized by Chief Justice Spencer and Judge Woodworth, in that case, by incorporating them into the Revised Statutes. R. S. part 3, ch. 1, tit. 2, art. 2, sec. 38, 39, and revisor’s note to sec. 35, as originally reported.)

The exception to the master’s report must be overruled, and the defendant Pettit must pay the costs of the original exceptions and the subsequent proceedings, and put in a further and perfect answer to the complainant’s bill within twenty days.


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    *Fulton Bank v. Beach.
    Where a party comes to Chancery to avoid a usurious contract, he must consent to pay the sum actually loaned, with interest, or the court will not grant him any relief.

    March 3d.
    And where the proofs in a cause are regularly closed, the court will not open them to enable the defendant tore-examine a witness in order to establish the usury, unless he agrees to pay the sum actually lent.
    So the court will not allow an answer to be amended for the purpose of setting up a defence of usury, unless the defendant consents to pay tho amount equitably due.
    This was a petition on the part of the defendants for leave to open the proof and re-examine one of the complainants’ witnesses, upon the ground that new facts had been discovered on his cross-examination in a court of law, since the testimony in the suit was closed. The defence was usury,

      J. Hoyt, for the complainants,
    insisted that the new facts which were now attempted to be proved, would not support the particular defence set up in the answer; and that' the court ought not to aid a defence of usury.

      D. Buel, jun., for the petitioners,
    in answer to a suggestion from the court, stated that he was not authorized to waive the defence of usury as to the sum actually loaned

       This rule is abrogated in New York, by statute. It is, by this enactment, no longer necessary that the borrower seeking relief or discovery, should pay or offer to pay back any interest or principal on the sum loaned; nor can a court of equity compel him to do so, as a condition of granting relief See 2 R. S. (4th ed.) 182, secs. 8, 13; Livingston v. Harris, 3 Paige, 528; S. C., 11 Wen. 329. But a subsequent mortgagee is not a borrower within the meaning of the usury laws, so as to authorize him to file a bill to set aside a previous security, given by the mortgagor, on the ground that it is usurious, without paying or offering to pay the sum actually due. Rexford v. Birdsall, 3 Barb. Ch. 640; Rexford v. Widger, 2 Comst. 131; see also Hartson v. Devenport, 2 Barb. Ch. 77.

   The Chancellor :—Without examining the question whether the new facts are admissible as evidence, under the present state of the pleadings, I am satified the other objection, taken by the complainants’ counsel, is fatal. If a party seeks equity in this court, he must do equity. If he comes here to obtain a discovery, or to ge’t rid of a usurious contract, he must consent to pay the money actually lent, with legal interest. If the defendant sets up a defence of usury, either in this court or at law, he is at liberty to sustain it if he can by proof in the usual way. But if he neglects, or is unable to do that, when he applies to this court to aid him in such defence, he must consent to do equity before this court will afford him any relief-The proofs in this cause were ^regularly closed more than six months since. The defence of usury has been set up at law, and a jury have decided against it. The defendants now ask of this court the favor to re-examine one of the witnesses, to enable them to establish the usury; but they decline paying the sum actually loaned. The application must therefore be refused. This is not a new principle here. In Hall v. Wood, in September, 1826, an order taking the bill pro confessa was vacated on an affidavit of merits; but, as the proceedings on the part of Hall had been regular, the late Chancellor annexed a condition to the order opening the default, that the defendant should not interpose the statute of limitations as a defence; which he considered would not be conscientious under the particular circumstances of that case.

The defendants subsequently applied to amend their answer for the purpose of setting up a general defence of usury, to enable them to establish a different kind of usury from that set up in their former answer. The motion was argued by

S. A. Foot, for the defendants:—He contended that the application now was to enlarge the answer. Usury had been set up therein generally, without a knowledge of the particular facts. These facts have since been discovered. The draft answer, which was prepared by the defendants’ counsel and miscarried in the post-office, contained substantially what was now asked to incorporate in the answer by way of amendment. Mistakes in pleading should always be corrected where justice will be administered by so doing. Usury is a meritorious defence; and the defendants being sureties, are entitled to the favor of the court. Where the defence of usury goes to the right, it is always favored. The counsel cited Bowen v. Cross, (4 John. Ch. R. 375.)

J. Hoyt, for the complainants:—Application to amend pleadings are not granted except upon terms; (Beekman v. Waters, 3 John. Ch. R. 410; Shepherd v. Merrill, 3 John. Ch. R. 423; Thorn v. Germand, 4 John. Ch. R. 363; *Bowen v. Cross, 4 John. Ch. R. 375.) The party asking to amend his answer, must satisfy the court that at the time of putting in the answer, he was ignorant of the facts which he seeks to insert in it by way of amendment; (Liggon v. Smith, 4 Hen. & Munf. 407; Const v. Barr, 2 Meriv. 57.) An amendment will not be granted where there has been a mere mistake of law; (Pearce v. Grove, 3 Atk. 522; S. C., Ambler, 65.) And where a party has not set forth his defence, in consequence of an inability to do it with precision he cannot amend; (Tennant v. Wilsmore, 2 Anstr. 363.) An amendment must be moved for, the first opportunity, and must be sworn to. It must also be served upon the opposite party; (Rodgers v. Rodgers, ante p. 424.) The Court of Chancery will not relieve against a usurious contract, unless the party seeking relief does equity by paying the sum actually advanced; (Rodgers v. Rathbun, 1 John. Ch. R. 367; Tupper v. Powell, 1 John. Ch. R. 439; Fanning v. Dunham, 5 John. Ch. R. 122.) The court will not, therefore, upon this principle, grant the amendment moved for by the defendants in this case, unless they consent to pay the sum equitably due. The effect of the amendment would be to enforce a penalty or forfeiture; a proceeding which equity never aids; (Livingston v. Tompkins, 4 John. Ch. R. 431; Mason v. Gardiner, 4 Bro. C. C. 436.) It is a settled rule, that if a defendant mispleads the statute of usury, he shall be bound by his plea; (Parker v. Rochester, 4 John. Ch. R. 332; Hamilton v. Boiden, 1 Mass. Rep. 50.) In Goff v. Popplewell, (2 Term. Rep. 707,) an amendment was refused, although, without the amendment the right of action would be gone.

The Chancellor :—When this case was before me, on the petition to re-examine Mark Spencer as a witness, I did not examine the question whether the new facts proposed to be proved by him were admissible under the present state of the pleadings. That question was distinctly raised and argued on that occasion by the complainants’ counsel; but as I was *clearly with him on the other points, I did not consider it necessary to look farther. The defendants being probably satisfied that this objection was well taken, notwithstanding their appeal to the Court of Errors from the decision of this court refusing such re-examination, now ask to amend their answer for the purpose of making the new evidence material, if they should succeed in reversing that decision. The application at this time appears to me premature and unnecessary. If the former decision of this court is reversed, it necessarily follows that the new testimony ought to have been received, and was proper under the pleadings as they now stand. If that decision is affirmed, the witnesses cannot be re-examined, and the amendment would be useless. As the case now stands, it is res adjudicata in this court, that the rule to close the proofs is not to be opened; and while an appeal from that decision is pending, this court ought not to do that indirectly, by an amendment, which it could not do directly. The defendants should have dismissed, their appeal and made an application here to amend and to re-examine the witness to the new matter, or should have waited until that appeal was determined. But, as both parties have requested that the question may be decided now, I shall dispose of it without waiting for the decision of the Court of Errors.

The former application was denied on the ground that the relief prayed for in the petition was not a matter of strict right, as the proceedings on the part of the complainants to close the proofs had been perfectly regular. The defendants, therefore, were asking a favor, which the court, in the exercise of a sound discretion, was not bound to granb unless they would also do equity to the other party. The reasons given for refusing that application apply equally to this, but with greater force.

The power of the court to allow amendments, in futherance of justice, at anytime before a final decree, is unquestionable. They are always in the discretion of the court; but the exercise of that discretion must be governed by those general principles of equity by which the proceedings in this court are regulated. One of those principles is not to lend the aid of the court to enable a party to enforce a forfeiture, *or any thing in the nature of a penalty or forfeiture. (Livingston v. Tompkins, 4 John. Ch. Rep. 415.) If a party sues in a court of law upon a usurious contract, the defendant has a right to set up the legal defence, and insist upon the forfeiture, if he can establish the facts. But if he cannot avail himself of that defence without the aid of a court of equity, when he applies for equitable relief, he must consent to waive the forfeiture, and pay or agree to pay the amount actually due. (Rogers v. Rathbone, 1 John. Ch. Rep. 367; Tupper v. Powel, id. 439; Fanning v. Dunham, 5 John. Ch. Rep. 122. And the same rule prevails when he applies for equitable relief to a court of law. (Fitzroy v. Gwillim, 1 Term Rep. 153.) It makes no difference that a suit upon the usurious contract is brought in this court. If such a suit is brought here the defendant may set up the usury in his answer, and if he can establish it by proofs in the ordinary way, it will be a complete bar to the suit. But if he asks for the interposition of the extraordinary or equitable powers of this court to aid him in such defence, he must consent to do equity before he can obtain that aid. Thus in Mason v. Gardiner, (4 Bro. Ch. Cases, 436,) where a suit was brought in Chancery, upon securities which were tainted with usury, and the defendant filed a cross bill to discover the usury, it was held bad on demurrer, because he did not offer to pay the sum which was equitably due. So, if the defendant neglects to set up the defence of usury in his answer, whether by mistake or negligence is immaterial, when he applies to the court from the favor to amend his answer, he should offer to pay the amount actually due with legal interest. But here the defendants ask the court to permit them to amend with the avowed object of getting rid of the payment of moneys actually loaned, as well as of the usurious excess included in the securities. The granting of such an application would not be the exercise of a sound legal discretion, as it would be a violation of the settled principles of the court. An amendment to an answer which has been sworn to by the defendant is always granted with extreme caution. (Brown v. Cross, 4 John. Ch. Rep. 375.) And I am not aware of ""any case in which such an amendment has been allowed after the witnesses had been examined, and the proofs in the cause were closed.

But there are some extraordinary features in this application which show the danger of permitting a party to set up a new defence after the testimony in the cause has been taken. The defendants have put in a joint answer, in which some of them swear positively to, and the others as to their belief in a state of facts which is wholly inconsistent with the facts they now seek to avail themselves of under the amendment asked. They do not pretend there was any mistake in the allegations in their former answer; but still insist those allegations are true, and that the defence which they now seek to establish is not true in point of fact. Yet as the complainant’s witness, who swears in opposition to their answer, has stated those matters, they wish to amend their answer so as to avail themselves of them, if the court should be satisfied their present answer is incorrect in point of fact. To avoid the difficulty of swearing to a defence which they do not believe to be true, they propose, in their supplemental answer, to state generally, that the complainants’ demands were founded upon a usurious consideration, without specifying the particulars. I think the senior counsel who examined and amended the original answer, was right in leaving out this allegation. This general manner of setting up usury is certainly not sufficient in a court of law; and I know of no rule of equity which can authorize such a loose method of stating a defence here. (Smith v. Brush, 8 John. 84; Lawrence v. Knies, 10 John. Rep. 140.)

The motion must be denied with costs


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    Frith v. Lawrence, Administrator of Mactier.
    March 3d.
    Where an offer to sell is made to a distant correspondent by letter, and he declines the offer, he cannot afterwards assent to it so as to make it a valid purchase without a subsequent assent of the other party also.
    If he accepts the offer conditionally, the other party is not bound unless he consents to the condition.
    *An offer to purchase was made by letter, and previous to the receipt of the letter by the other party, the party making the offer died insolvent. The party receiving the letter consented to sell on the terms proposed, and sent an answer to that effect, but without any knowledge on his part of the death of the purchaser. Held, that he was not bound by such acceptance of the offer, and that the title to the property was not changed.
    To make a valid contract, it is not only necessary that the minds of the contracting parties should meet on the subject of the contract, but that fact must be communicated to each other.
    H. Mactier was a commission merchant in New York, and died about the 10th of April, 1823. The complainant is a resident at Jacmel, in the republic of Hayti. He filed his bill in this cause against the administrators of Mactier, claiming a certain shipment of brandy, a part of which had been sold by Mactier in his life time, and the residue by the defendants. He also claimed a specific lien upon the proceeds of the sales of the brandy, and the proceeds of a certain letter of credit given by H. Wylie, or certain bills of exchange drawn in pursuance thereof, to pay a balance due to him from the estate of Mactier, which was insolvent. The answer of the defendants being put in issue by a replication, an order was entered by consent, referring it to a master to examine the witnesses, &c., and report whether in his opinion the complainant was the owner of any, and what part of the shipment of brandy at the time of the sale of any such part, (whether the sale was made by the intestate, or by his administrators;) and if so, whether as such owner he had a lien by virtue of such ownership, on the said brandy, or the proceeds thereof in the hands of the defendants; and also whether he was entitled as owner, or as having any special claim or lien on the proceeds of the letter of credit, or of the bills of exchange. And if he should be of opinion that the complainant was entitled as a special creditor, or had a specific lien, the master was further directed to state an account, and report the amount due to him as such special creditor, or as having liens on any of the said subject matters. In such case he was also directed to report the amount due to the complainant as a common creditor, if any thing was due him in that character, beyond the amount due him as a special creditor. And all further directions were reserved.
    *A mass of evidence, principally documentary, was taken before the master, and he finally reported that in his opinion the complainant was not the owner of any part of the shipment of brandy at the time it was sold, and had no lien on¿ any part thereof, or on the proceeds in the hands of the administrators. He also reported that the complainant had no special claim or lien on the proceeds of the letter of credit of H. Wylie, or of the bills of exchange, drawn in pursuance thereof. The complainant excepted to the master’s report, and the cause was heard on those exceptions before the late Chancellor, but was not decided by him. One of the administrators having died, the cause was continued against the survivor, and again brought to a hearing on the exceptions to the report.

      J. Stevens & G. Griffin, for complainant:
    No sale was made of the brandy in question by Frith to Mactier. The contract never passed from an inchoate to a consummated state. Any lurking intention to sell the brandy can be of no moment. The testimony shows offers and negotiations only, not conclusion of minds. The acceptance of the first proposition of Frith, was deferred by Mactier, and made to depend upon a condition. The second offer contained in a letter to Mactier did not reach this country until after his death, and therefore could not be binding upon Frith. (Anson v. Meyer, 6 East, 614; Pow. on Con. 442. A party can always revoke an offer until he has received notice ot its acceptance. (McCulloch v. Eagle Ins. Co., 1 Hick. 278. Adams v. Lindsell, 1 Barnwell & Ald. 681.) Mactier should in a reasonable time have elected to accept the proposition of Frith. (Rob. on Frauds, 142; Eliason v. Henshaw, 4 Wheat. 225; Cooke v. Oxley, 3 D. & E. 653.) If a vendee becomes insolvent before he takes possession of the goods sold, the vendor will not be bound by the contract of sale. (Gibson v. Bray, 8 Taunt. 76; Wallace v. Breeds, 13 East, 522; Ward v. Feltan, 1 East, 508; Haggerty v. Palmer, 6 John. Ch. Rep. 437.) The lien of the vendor for the purchase-money is not lost, nor his right of stoppage in transitu gone, until the goods come into the actual possession of the *vendee. (Litt v. Cowley, 7 Taunt. 169; Whit. Law of Liens, 214; Hanson v. Meyer, 6 East, 614; Anthon. N. P. 165; Abbot on Ship. 364; Long on Sales, 185; Northey & Lewis v. Field, 2 Esp. Rep. 613, 614; Palmer v. Hand, 13 John. Rep. 434; Vernon v. Hankey, 2 T. R. 113; Godfrey v. Furzo, 3 P. Wms. 185; 5 T. R. 215, 230, 233-4; French Com. Code. Art. 576, p. 301.) The defendants in this case had no right, as administrators, to divest the complainant of his right of stoppage in transitu, their intestate having died insolvent before the arrival of the goods. Goods in the custom house are in the custody of the government for the benefit of the consignor or unpaid vendor, and the right of stoppage in transitu continues. Courts lean in favor of liens. (Green v. Farmer, 4 Burr. 2221, per Ld. Mansfield; Garson v. Green, 1 John Ch. R. 308.) Even payment of part of the purchase-money, or a delivery of part of the goods will not take away the right of stoppage in transitu as to the goods not delivered. (Hodgson v. Loy, 7 T. R. 436.) In this case the defendants had not given the bond for the duties to entitle them to the possession of the brandy. (Fiese v. Wray, 3 East, 93; Mason v. Lickbarrow, 1 H. Bl. 357; Howat v. Davis & Chalmers, 5 Munf. Vir. R. 34; Parks v. Hall, 2 Pick. R. 212.) A partner has the same right of stoppage in transitu as a sole owner. (Hughes v. Kearney, 1 Schoale & Lefroy, 135; Patten v. Thompson, 5 Maule & Selw. 367.) If Mactier had a joint interest with the complainant in the brandy, the complainant, as the surviving partner, had the exclusive right to possession. The defendants are liable for the bills of exchange drawn by H. Wylie, in favor of Mactier.

      D. S. Jones and S. Boyd for the defendants:
    The complainant was never liable to the French house for the brandy. The brandy was not of the quality ordered, and Mactier assumed the transaction, such as it was. Frith might therefore have disclaimed it. He, by letter, desired Mactier to take the whole speculation to himself; and Mac-tier, in effect, assented. Frith’s intention to accept Mac-tier’s offers was clearly shown by his acts. When Mactier insured the Commissions on the 1st of March, he had not heard whether Frith had accepted his proposition; and he therefore at that time treated the brandy as joint property. The sale of the brandy to Mactier was complete. Mactier, if he had lived, would have been legally bound by his proposition after the receipt of Frith’s letter of the 7th March. As to the bills of exchange, they were in fact owned by Mactier, and Frith was not responsible to bim for their payment,
   The Chancellor :—-The counsel for the complainant insist that he is entitled to relief in this suit as a common creditor, if he has no specific lien on the funds in the hands of the defendant. That question does not properly arise at this time. It was not made a ground of exception to the master’s report; neither was he authorized to report the amount due to the complainant as a common creditor under the order of reference. He was only to report the balance due to him as a common creditor, if it was ascertained he had a specific hen as to part.

On a careful examination of the testimony and the correspondence produced before the master, I agree with him that the complainant had no specific lien upon the proceeds of the letter of credit of H. Wylie. That appears to have been a transaction between the complainant and H. Bergeron & Co. on the one hand, and between them and Mac-tier on the other. The protested bills had been remitted by H. Bergeron & Co. to Mactier on account. By an agreement between Frith and the drawers, he had become responsible to see them paid. But they did not belong to Mactier, and he had no claim upon Frith, in consequence of the agreement entered into before the civil tribunal at Jacmel. The complainant by that agreement was bound to see the protested bill, with all costs and charges thereon, discharged; and as IT. Bergeron & Co. wanted the funds in the hands of Mactier to meet his advances, the complainant procured the letter of credit to enable Mactier to realise the amount; but the latter had not discharged his claim against U. Bergeron & Co. or agreed to look to Frith for payment. The administrators, therefore, had a perfect right to use the letter of credit to satisfy the amount due from that firm, and were not bound to *offset their claim against the debt due from the estate to Frith.

As to the overdrawing, it can be of no importance in this case, except so far as it may affect the question of costs. I think under the circumstances the legal claim to that small balance must belong either to H. Wylie, H. Bergeron & Co., or the house in England on which the drafts were made. If the administrators were authorized to draw to that amount, the surplus was properly placed to the credit of IT. Bergeron & Co., on whose account they received the authorization. If they drew beyond the authority contained in the letter of credit, Frith was not responsible to H. Wylie for the surplus. So far as respects the complainant, this overdrawing cannot be distinguished from the original bill transaction; and if Frith is liable for the whole amount to H. Wylie, he must look to IT. Bergeron & Co. for his indemnity, as the administrators were only their agents in procuring payment of the protested bills, and have paid over the surplus to the principals.

The material and important question in this cause relates to the shipment of brandy, which I vrill now consider. On looking into the testimony on this subject, and the correspondence between Frith and Mactier, I am satisfied the complainant never was the sole owner. But if he did not make a valid sale of his interest in that adventure previous to the death of Mactier, he has a specific lien upon the proceeds of the fifty pipes which were afterwards sold by the administrators, and the proceeds of the notes received on the sale of the first 150 pipes, which had not been collected or negotiated previous to Mactier’s death. I have no doubt the original transaction was substantially as stated in the answer of the administrators. The parties undertook an adventure in which they were to be equal sharers in profit and loss. A cargo of brandy was to be purchased in France on the credit of Frith, and consigned to Mactier at New York. On its arrival there, he was to sell it and remit the invoice cost in provisions consigned to Frith at Jacmel; from the sale of which the latter was to raise funds to furnish a shipment of coffee to his correspondent in France, to pay the original cost of the *brandy. Under this agreement, it would be immaterial whether Mactier charged a selling commission on the brandy or not. If he charged a commission, it would have been countervailed by a similar charge on the sale of the provisions by Frith in the West Indies; but neither could be entitled to a del credere commission, as the sales would be at the risk of both. In pursuance of this agreement, on the 5th of September, 1822, while the complainant was on a visit to New York, he gave an order on Firebrace, Davidson & Co., of Havre, for the shipment of 200 pipes of brandy, to be consigned to Mactier; but on his return to Hayti, he came to the conclusion to give up the adventure to Mactier, if the latter would consent to take it off his hands. Accordingly, on the 24th of December, he wrote to Mactier proposing that he should take the adventure solely to his own account, holding the value to cover the transaction to the complainant’s account in New York. If this proposition had been directly and explicitly accepted by Mactier, there could be no doubt as to the proceeds of the 150 pipes sold before his death. But it might be necessary to examine the question so much discussed on the argument, as to the right oi Frith to stop in transitu the fifty pipes which remained in the public store, and which had not come to Mactier’s hands, and the liquidated duties on which had not been secured at the time of his death. Having arrived at the conclusion that Mactier did not, in his answer of the 17th of January, 1823, intend to accept of that offer, and that it was not afterwards binding on Frith, I do not consider it necessary to express any opinion on the question as to his specific lien on the proceeds of the fifty pipes only.

In Mactier’s answer to the proposition of the 24th of December, he says the original adventure had from the first been a favorite speculation, and still promised a favorable result, and he was desirous it should go on in the way first proposed; but as Frith had expressed a wish that he should take the same on his own account, he should delay coming to any conclusion till he again heard from the complainant. If he had stopped there, the answer could only have admitted of one construction; but he adds: “ The prospect of a war between *Erance and Spain may defeat the object of this speculation, as far as relates to the shipment of provisions hence to Hayti to be invested in coffee to be sent to France in French vessels, in which case I will at once decide to take the adventure to my own account.”

The defendants’ counsel insist that this was a conditional acceptance of the offer of Frith; and as he did not dissent from it, both parties were bound by it as soon as it was ascertained there was such a prospect of war between France and Spain, as to render it unsafe to go on with the original adventure. [Whatever might have been the intention of Mactier, it was not such an acceptance of the offer of the 24th of December as to make that offer binding on Frith. And Mactier having declined to accept the adventure as proposed, he coukbmot by any subsequent assent to the original offer made awalid contract for the purchase of the interest of Frith in the brandy. It is evident this conditional acceptance of the offer was never acted on, or assented to by Frith. For as late as the 28th of March, instead of assenting to a conditional sale, he again renews the original offer of the 24th of December, which was for an absolute sale.

Mactier. did not consider himself the absolute or probable owner of the brandy on the first of March, or he would not have insured the commissions he expected to receive on the sale. On the 18th of March, when he considered war between France and Spain as inevitable, he says nothing more on the subject of taking the speculation to himself, but speaks of the brandy as a matter in which they were jointly concerned. He says the offices refuse to insure on French vessels, and he fears the delay in the shipment of the brandy will operate to the disadvantage of himself and Frith. It is true, the vessel arrived safe on the evening of that day, and soon after that he began to talk with his clerk, and consult with his friends as to the propriety or expediency of taking the brandy to himself. But he did not make up his mind until twelve days after the arrival of the vessel; and after he had ascertained the value of the brandy by an actual sale of three-fourths of the shipment. Under these circumstances, can it be supposed if any disaster had happened to the vessel *which was not covered or fully guarded against by the policy effected in in France, or the brandy had come to a bad market, he would have considered himself bound by the indefinite and vague expressions contained in his letter of the 17th of January.

On the 7th of March Frith acknowledged the letter of the 17th of January, but said nothing about the brandy. This communication was received on the 7th of April, two or three days before Mactier’s death. Another letter was written by Frith on the 28th of MajttB)* which was not received until long afterwards. In Sms he repeated the original offer contained in the letter of the 24th of December. As this letter never came to the knowledge of Mac-tier, and could not have reached this country until some time after his death, the master very correctly decided that Frith was not bound by the offer contained therein. But as Frith there states that he intended to have made the same offer in the letter of the 7th of March, which Mactier did receive, the Master considers it evidence of a mental assent to the conditional acceptance of the offer of the 24th of December; and that the letter of the 7th of March is to be taken as if it contained a renewal of the proposition of the 24th of December. If the mental assent of Frith was alone sufficient to close the bargain, so as to make it binding on both parties, without any expression of such assent, I should not consider the expression in the letter of the 28th of March as evidence of that mental assent, but the contrary; because the offer in those letters is not the same contract as that contained in the letter of the 17th of January, but materially different. The first is an absolute sale, to take effect immediately; the other is conditional, to take place on a contingency, leaving Frith responsible for one-half of all risks in the mean time.

The letter of the 28th of March is undoubtedly evidence that on the 7th of that month Frith wished to renew his offer to sell. To make a valid contract it is not only necessary that the minds of the contracting parties should meet on the subject of the contract, but they must communicate that fact to each other, so that both parties may know that their minds do meet. Why did the master decide that the letters of the *25th and 28th of March did not of themselves make a valid contract? Both minds met on the same point on the 28th of March, when the letter of Frith was written, and the invoice price of the brandy was credited to him by Mactier. But as the latter never heard of the letter, and the former never heard of the entry until after the death of Mactier, there was no contract made which was binding on either. If the master had applied this same principle to the mental assent of Frith at the túne he wrote the letter of the 7th of March, he would have found it equally fatal to the supposed bargain, founded on the offer intended to have been inserted therein. As Mactier never knew such an offer was intended to have been made, it is the same as if the offer had been inserted, but the letter had never reached him. He could not assent to an offer which he never heard of, and consequently there was no bargain.

Having arrived at the conclusion that Frith did not in fact sell his interest in the adventure to Mactier, as survivor he is entitled to the net proceeds of the brandy so far as they can. be traced and identified. He has a specific lien on the fifty pipes sold by the administrators, and on the proceeds of the notes given for the other 150 pipes which remained uncollected in the hands of Mactier at the time of his death; or on so much thereof as is necessary to satisfy the balance due him for disbursements on account of that adventure. The report must, therefore, be referred back to the master to be corrected accordingly. And the question of costs on these exceptions, and all other questions are to be reserved until the coming in of the master’s amended report.

       The decision of the Chancellor in this case is overruled in Mactier v. Frith, 6 Wen. 103. There held, that the offer to sell made by letter was an offer standing open for acceptance, at the time it was accepted, and the contract was then consummated, though the knowledge of the concurrence of wills, when the acceptance was made, was not known to the party who wrote the letter, and though he died before notice of the acceptance, by answer to the letter was received, but after the time of acceptance.


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    *In the Matter of the Petition of Sylvanus Miller v. the Receiver of the Franklin Bank.
    March 3d.
    Demands, in reference to off-set, are considered due to and from the same persons, in the same right where the plaintiff may sue and the defendant be sued in their own names, without specifying any representative character, and where the party to the suit has a lien upon, or a legal right to the application of the fund when collected.
    The public administrator of the city of New York is entitled to off-set against a debt due from him to a bank, a demand for deposits in the bank whether made in his own name or as public administrator, and also the bills of the institution in his hands.
    The petitioner stated that he was public administrator of the city of New York; that he had an account in the Franklin Bank, as public administrator; that he always had an interest personally in the moneys deposited to his credit in that account, and frequently, for convenience and safety, deposited money to that account which did not belong to him as public administrator; that on the morning on which the bank stopped payment, he drew out from the bank, on his account as public administrator, $1,150 in bills, which he had in his hands at the time the injunction was served, leaving a considerable sum still due to him on that account with the bank. At the same time the bank had a demand against the petitioner, which was secured upon real estate; that he was willing to pay the due from him, after deducting the balance due to him on the account, and the bills which he then held; and that the receiver had consented to refer the question as to his right of off-set to the decision of the court. The receiver put in an answer to the petition on oath, in which the material allegations in the petition were admitted, and submitted the whole subject to the decision and direction of the Chancellor.

      J. Platt for the petitioner.

      S. A. Foot and W. Kent for the receiver
   '-The Chancellor :—The legal and equitable rights of the petitioner remain as they did at the time the injunction was served on the officers of the bank. ISTo payments which he has made as public administrator out of his own moneys since that time can give him the right of set-off; and if such right then existed, it was not divested by the appointment of the receiver. The question then arises, whether the bills of the bank in his hands, and the moneys deposited to his credit as public administrator, at the time the bank stopped payment, could have been off set either at law or in equity, against the demand due the bank, if it had continued to do business.

It is undoubtedly a general rule that demands to be off set at law, must be due to or from the same persons, and in the same right. But they are considered due in the same right where the plaintiff may sue, and the defendant may be sued, in their own names, without setting out or specifying any representative character, and where the party to the suit has a lien upon, or a legal right to the application or distribution of the fund when collected. Thus, a surviving partner is, in equity, only a trustee for himself and the representatives of the deceased partner. Yet he may sue or be sued in his own name, and debts due to or from him in own right may be off set against debts due to or from him as surviving partner. (Slipper v. Stidstone, 5 Durnf. & East, 493; French v. Andrade, 6 id. 582.) And in Shipman v. Thompson, (Willes’ Rep. 103,) it was held, that an executrix might recover in her own name for moneys received to her use as executrix.

But this is a much stronger case. The petitioner does not administer by virtue of his office as public administrator, but by virtue of a regular letter granted to him as administrator of the estate in each particular case. He cannot sue or be sued as public administrator; but suits in his representative capacity are brought by or against him as the administrator of the particular estate to which such suit relates. If a suit was brought for this deposit in his name ot public administrator, the addition would only be descriptive of the person, *but would not alter the rights of either party to the suit. There was no law directing or authorizing the public administrator to deposit moneys in the bank. As between him and the bank, he stands in the same situation that an attorney or solicitor would, who had deposited in the bank for safe keeping the moneys collected for different clients, in one general account, in his name as attorney or solicitor, to be drawn out on his own checks when called for. In neither case could the bank object to pay the money to the depositor, or to allow it to be off set against a demand in favor of the bank, unless they had notice from the persons having an equitable claim thereon not to pay it. Neither would the right of off-set depend upon the question whether the depositor was personally liable, in case of loss by the failure of the .bank. It is the duty of the petitioner, whether he is personally liable for the loss or not, to do every thing in Ms power to protect the rights of those who may be interested in different portians of the moneys deposited; and if he had a legal right of off-set against the debt due from him to the institution, he must stand in the same situation here as he did before the appointment of the receiver. The equities of all creditors of the institution being equal, the legal right must prevail.

I shall therefore direct the receiver to allow the petitioner to set off against the debt due from him to the bank the balance standing to his credit on the books of the institution at the time it stopped payment, either in his own name or as public administrator; and also the bills of the bank held by him at that time, provided the receiver is satisfied the petitioner is still the owner of the certificate given for those bills.

       A. law has since been enacted on this subject. See 2 R. S. (4th ed.) 309, see. 36.


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    *Arthur and Wright v. Case and Harwood.
    March 3d.
    As a general rule, persons who own lands on the different sides of a private stream, hold to the middle of the stream.
    And where hydraulic works are erected on both banks, the owners of the works are each entitled to an equal share of the water. If the owner of the mills on either side attempts to deprive the other of the use of his share of the water, of which he has been in the quiet enjoyment, and thus to destroy his mills, a preliminary injunction will be granted, as the injury might be irreparable.
    The complainants are the owners of certain mills and mill privileges on the lower falls at Ticonderoga, on the north side of the outlet of Lake George; and the defendants own mills and mill privileges on the south side of the same stream. There is an island in the middle of the outlet, and the main current of the stream naturally runs on the north side of the island. A dam is at present extended from the island to the south shore, on which the defendants’ mills are situate; and a similar dam runs from the island to the north shore, by means of which the complainants’ mills are supplied with water. In dry seasons there is not sufficient water in the stream to supply all the mills. The defendants claiming a right to have their mills first supplied, commenced building a dam from the island to strike the north shore some distance above the present dam, the effect of which would be to deprive the complainants’ mills of water in the dry seasons, and turn the whole stream to the south of the island. The complainants obtained an injunction to restrain the defendants from building this new dam; and on the coming in of the answer, a motion was made to dissolve the injunction.

      J. King and A. Van Vechten for the motion.

      John V. Henry for the complainants.
   *The Chancellor:—There is no doubt of the jurisdiction of the court in this case, as the new dam would in a great measure destroy the complainants’ valuable mins which have been in operation many years. The regulation of the use of water upon the different sides of a stream for hydraulic purposes, is so essential to the manufacturing interests of our country, and in fact to every branch of domestic industry, that it would be deplorable if any of these important establishments could be destroyed by any individual, or combination of persons, and the owners left to seek an uncertain remedy by an action for damages in a court of law.

It is a general principle that persons owning lands on the different sides -of a private stream hold to the centre thereof, or to the middle of the water. Ex parte Jennings, 6 Cowen, 518.) And where hydraulic works are erected on both banks, if there is not sufficient water to afford a full supply for all, the owner on each side is entitled to an equal share of the water, or so much thereof as is necessary for his mills, if less than a moiely is sufficient. If the owner of the mills on either side has been in the quiet enjoyment of the water privilege, and the other attempts to deprive him of it, and thus destroy his mills, a preliminary injunction is proper, as the injury might be irreparable. (Robinson v. Lord Byron, 1 Bro. Ch. R. 588; 2 Coxe’s Cas. 4; S. C., Lane v. Newdegate, 10 Ves. 193.) In this case, the court must see that erecting the dam by the defendants, in the manner proposed, will entirely cast off the water from the complainants’ mills, except when the stream is so high as to run over the dam. It, therefore, is necessary to look into the answer to see whether the defendants have the right, or whether there is any thing to take this case out of the general rule as to the use of the water.

Prior to July, 1793, the lands on the north side of the river belonged to S. Deal, P. Deal and Jane Nichol, under whom the complainants claim. P. Schuyler owned the lands on the south side, and also either owned or claimed the lands under the water to the north side of the stream. George Tremble was in possession of the premises claimed by Schuyler, under a lease from him for twenty one years from the 1st of May, 1788. On the 5th of July, 1793, Schuyler sold and*conveyedto S. and P.Deal and J. Nichol in fee a part of the land under the water of the river or outlet of Lake George on the north side, and extending about to the centre of the river, and embracing the whole or a great portion of the location of the dam intended to be erected by the defendants; saving and reserving to the grantor and his heirs and assigns a right to butt any dam or dams on both sides or shores of the river, as he or they might think proper; and subject, also, to the lease executed to Tremble. In this conveyance, Schuyler also covenanted with the grantees that after the expiration of the lease to Tremble, it should be lawful for them, or their heirs or assigns, to butt any dam or dams on both sides or shores of the river; which dam or dams, and the river or waters therein, might nevertheless be used and occupied by the grantor and Ms heirs and assigns, on his or their paying such proportion of the expense and charges of erecting such dam or dams, and keeping the same in repair, as should be adequate to such use and occupation.

The defendants have derived title under Schuyler. And under the reservation contained in the grant from him to S. and P. Deal and J. Nichol, they claim the right to use so much of the water of the river as may be necessary for the use of any hydraulic works which may be erected by them on the south side, although it should take the whole, or stop it from flowing to the complainants’ mills in time of low water. On a careful examination of the provisions of this deed, and the relative situation of the parties at the time it was made, I am satisfied that claim cannot be sustained. The right to butt dams on the lands of the grantees on the north bank of the river is not technically correct as a reservation, because it was no part of the thing granted. It must be construed in the same manner as though the deed was executed by the grantees and this was inserted as a covenant on their part. Before the execution of that deed, neither party had-a right to butt his dam upon the lands of the other on the opposite side of the stream; but for the accommodation of each, a reciprocal right was intended to be given. There is nothing in the deed from which a reservation of more than a moiety of the water can be inferred, and the grant must *always be construed most strongly against the grantor. From the then situation of the country, it was not probably contemplated by either that there ever would be a deficiency of water. The parties are bntitled to participate equally in the use ot the water; and if either draws more than a fair proportion, or if it is necessary to excavate in the bed of the river to give the defendants a due proportion, the manner of exercising the right, and the extent and nature of the excavation, must be settled under the direction of the court, on the report of a master, or in the mode adopted by the Master of the Rolls in Martin v. Stiles & Sherman, (Mosel. Rep. 144.)

The motion to dissolve the injunction is denied, with costs.


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    Suffern v. Johnson and Peterson.
    March 17th.
    After a decree for the foreclosure and sale of mortgaged premises, the court will control and regulate the proceedings and manner of sale, so that no injustice shall be done to either party.
    Where mortgaged premises are an inadequate security for the debt, and the mortgagor is irresponsible, the court, although the entire mortgaged debt is not due, will order the whole of the premises to be sold, or so much as is necessary to pay the whole debt and costs, unless the defendant pays to the complainant the sum which will become due before the sale, or gives ample security for payment of the residue, when it becomes due.
    Mortgaged premises should be sold either together or in parcels, as will be best calculated to produce the highest sum.
    This was a bill of foreclosure. At the last term of this court a regular decree was entered in this cause, referring it to a master to compute the amount due to the complainant on his bond and mortgage, and for a sale of the premises on the coming in and confirmation of the master’s report. W. S. Johnson, who had appeared in the cause, had regular notice of the proceedings before the master, and the report was confirmed. He afterwards presented his petition, setting forth that only a part of the mortgage money had become due; that he was the purchaser of the mortgaged premises, which were so situated that they might be sold in parcels. And he prayed that only so much of the premises might be sold *as would be sufficient to pay the amount now due, with costs.
    The application was opposed on affidavit, showing that the premises were insufficient to pay the whole amount of the mortgage; that the defendants had committed waste thereon; and that the property would sell for a higher sum if sold together.

      W. A. Seeley, for the complainant.

      S. M. Fitch, for the defendant Johnson.
   The Chancellor :—In cases of mortgage sales, this court will control and regulate the proceedings so that no injustice shall be done to either party. And the court may order the whole or a part of the mortgaged premises to be sold, as shall be most conducive to that end. It is not a matter of course to order the whole property to be sold where only part of the mortgage money is due; but it may frequently be necessary, to prevent injustice. If the person in possession is not responsible for the debt, and the premises are not a sufficient security, the sale of two-thirds of the property might be necessary to pay a moiety of the debt which had fallen due. And the defendant would retain possession of the residue of the property and put the rents and profits in his own pocket until the other instalments fell due, leaving the complainant remediless as to a great part of the remainder of his debt. In such cases, the whole of the premises, or so much as is necessary to pay the whole debt and costs, should be sold, unless the defendants choose to pay the amount of the instalment which is due, before the sale, or will give security that the residue of the mortgage money shall be paid when it falls due.

In Campbell v. Macomb, (4 John. Ch. Rep. 534,) all the money which had become due was paid before the application to this court to stay the proceedings.

The defendant Johnson may have an order directing the master not to proceed and sell, if the amount now due and the costs are paid before the day of sale, or to sell only so much of the property as will satisfy that amount, provided the "^defendants, or either of them, give to the complainant sufficient security, to be approved of by the master, that the sums yet to fall due shall be paid. But as the proceedings on the part of the complainant have been perfectly regular, the defendant Johnson must pay the costs of resisting his application.

It is the duty of the master in all cases, unless otherwise specially directed, to sell the premises either together, or in parcels, as he shall think best calculated to produce competition and enhance the value on the sale.

       See 2 R. S. (4th ed.) 357, 358, secs. 69, 70, 71.


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    Thompson, Executor, &c. v. Graham and others.
    March 23d.
    Where a suit was commenced in this court in consequence of an inequitable defence interposed to a suit at law for the same cause of action, the court refused to compel the complainant to elect in which suit he would proceed, as long as no attempt was made to prosecute the suit at law.
    H. Bleeker, for the defendants,
    upon an affidavit that the complainant had brought a suit at law for the same cause of action for which this suit was brought, moved that he elect in which cause he would proceed, and that he pay the defendants’ costs in the other cause.

      J. Hoyt, contra,
    read an affidavit, showing that the suit at law was first commenced; that the defendants interposed an inequitable defence to that suit, and that the bill in this cause was filed in order to get rid of that inequitable, defence; and that no proceedings have been since had in the suit at law.
   The Chancellor :—There is no ground for this application. The complainant is not proceeding in both courts at the same time. It appears from his bill that the conduct of the defendants has driven him into this court; and since that time he has taken no steps at law. If he should attempt to proceed at law, it will then he in time to apply and compel him to elect. He has been compelled, on this application, to come here to resist an improper claim for costs; and the motion must be denied with costs to be paid by the defendants.


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    *Duffy and others v. Buchannan and others.
    March 25th.
    Where a person was entitled to a share of the personal estate of an intestate, and the agent of other persons entitled also to portions of such estate had received all the proceeds of the same and remitted the whole to his principals, and afterwards there came into his hands a portion of the proceeds of the real estate which belonged wholly to his principals, it was held that such person, whose share of the personal estate had been so paid by such agent to his principals, had an equitable claim upon the proceeds of the real estate in the-hands of the agent. .
    The agent is not liable for the payment to his principals of the share of the personal estate which did not belong to them, having paid the same without notice.
    The remedy of the person entitled to the share of the personal estate so paid by mistake to the principals, is against such principals or the personal representatives of the intestate.
    In 1820, George Duffy, a resident at Philadelphia, being possessed of real and personal property there, died intestate and without issue, leaving his widow and a brother and sister of the full blood, and one brother and two. sisters of the half blood, him surviving. Hnder the laws of Pennsylvania, one-half of the personal property belonged to the widow, and the other half to the five brothers and sisters in equal proportions; and the real estate descended to the brother and sister of the full blood, subject to the widow’s right of dower. The brothers and sisters all resided in Ireland. Those of the full blood, claiming the whole of the proceeds of the real and personal estate except the widow’s share, sent a power of attorney to the defendant Buchannan, the British consul at New- York, to receive and transmit to them the proceeds of the property. In December, 1820, he received $1,900 for the proceeds of the personal estate, which he remitted to them, after deducting $100 as a compensation for his trouble and commissions. In July thereafter, he received $624 95 for the proceeds of the real estate ; but before this was remitted, he had notice from the brother and sisters of the half blood of their claim, and was forbidden to pay over the moneys in his hands. In February, 1824, he paid to Charles Duffy, the brother of *the half blood, $388 87; the latter indemnifying him against the claims of any of the family in respect of the same; and the residue, $236 08, still remains in the hands of Buchannan. The bill was filed by the two sisters of the half blood of the intestate; it was taken as confessed against the brother and sister of the full blood, and the brother of the half blood; and the cause was heard on pleadings and proofs as against Buchannan.

      D. Selden, for complainants.

      G. Brinckerhoff, for Buchannan.
   The Chancellor :—The consul having received the proceeds of the personal estate as the agent of the brother and sister of the fall blood, and paid it over to his principals without notice of the claim of the other parties, he is not liable to them for that amount. Their remedy is against the principals or against the personal representatives of the intestate who has paid over the money to the wrong parties. (2 Livermore, 261.) But the principals having received more than their share of the personal estate, the brother and sisters of the half blood had an equitable claim upon the proceeds of the real estate in the hands of the same agent. There must be a decree that the defendant Charles Duffy refund to Buchannan the amount received by him over and above one-third of the $624 95; and that the latter pay one-third of the last-mentioned sum to each of the sister of the half blood, and the brother and sisters of the half blood must have a decree against the brother and sister of the full blood severally, for the payment of the residue of their respective shares of the personal estate, with interest thereon from the time it was received by their agent. As it does not appear that the brother and sister of the full blood had been applied to for the payment before this suit was commenced, neither they or Buchannan are to be charged with the complainant’s costs. But Buchannan must have a decree over against his principals for the costs to which he has been subjected by their mistake.


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    *Von Horne v. Crain.—Crain v. Van Horne.
    March 23d.
    Covenants of warranty and to convey contained in a lease of real estate, run with the land, and are binding upon the heirs and assignees of the lessor.
    A subsequent purchase by the lessor of an outstanding claim against the premises will enure to the benefit of the lessee by virtue of the covenant of warranty.
    The same result follows where the purchase is made by an assignee of the reversion.
    An assignee of an undivided moiety of leasehold premises, can maintain an action in his own name upon a covenant of warranty contained in the original lease.
    Whether he could maintain an action upon a covenant’ to convey without joining with the assignee of the other moiety ? Quare.

    But if the assignee of one moiety should unconscientiously refuse to join with his co-tenant in any act which would be for the common benefit of their estate, Chancery will compel him to join, or to permit the co-tenant to do it for his own benefit, if it can be done without injury to the estate.
    Separate instruments executed at the same time, and relating to the same subject matter, may be construed together and taken as one instrument.
    This was a contest relative to a mill site and mill privileges in the town of Danube. The mills are situated on lot No. 17, and the water which supplies them comes from a spring on lot No. 18 in McNeil’s patent. On the 4th of October, 1803, the title to lot No. 18 was in Jacob Conklin. Two-sixths of lot No. 17 belonged to James A. Stewart, one-sixth to Alexander Stewart, one-sixth to William R. Stewart, one-sixth to W. Benson, and the remaining one-sixth to Maria, now the wife of J. P. Decatur, subject to the life estate of her father, Thomas Ten Eyck, as tenant by the curtesy. On the day above mentioned, J. Conklin and wife conveyed to J. A. Stewart, A. Stewart, JV. R. Stewart, W. Benson and T. Ten Eyck, in fee, four' acres of lot No. 18, including the spring and the stream running therefrom. On the following day, J. A. Stewart and T. Ten Eyck for themselves, and as attorneys for A. Stewart, W. R. Stewart and W. Benson, leased lot No. 17, with the benefits, liberties and *privileges thereto belonging or appertaining, to J. Williamson and J. Williamson, junior, for life, at an annual rent of $100; with a covenant on the part of the lessors to convey to the lessees or their assigns, on receiving $15 per acre, at any time during the term. There was also a general covenant for quiet enjoyment of the premises, against the lessors and all other persons. The lease was not signed and sealed by J. A. Stewart and T. Ten Eyck, in the names of those for whom they professed to act as attorneys. By a covenant indorsed on the lease at the same time, and signed and sealed by J. A. Stewart and T. Ten Eyck, reciting that they had purchased the four acres “ containing the water course to the within mill seat and lot of land,” for £13 10s. they promised to relinquish the four acres to whoever paid the sums mentioned in the lease, on receiving the purchase-money by them paid to Conklin, with lawful interest from the date of the lease. The Williamsons leased two small lots on No. 17, for a fulling mill and a carding machine, the interest in which leases, by divers mesne conveyances, became vested in Crain. Afterwards, on the 6th of April, 1806, the Williamsons conveyed to Richard and Daniel Yan Horne the equal undivided half of all their interest and claim in and to lot No. 17, and the four acres in No. 18, under the lease and the agreement indorsed thereon. The remaining half, by divers mesne conveyances, afterwards became vested in Crain. Benson died in 1805, and his interest in the premises passed by his will to A. Stewart. On the death of the latter in 1808, his interest in the premises descended to his son A. J. Stewart, and his daughter Elizabeth, wife of J. K. Hamilton, subject to the dower right of their mother Elizabeth Stewart. T. Ten Eyck died in the same year, and his interest went to Mrs. Decatur. J. A. Stewart died in 1815, and his interest descended to his sons W. J. Stewart and J. J. Stewart. On the 29th of July, 1815, William R. Stewart, A. J. Stewart and J. K. Hamilton and wife, Elizabeth Stewart the widow, J. P. Decatur and wife, and W. J. Stewart and J. J. Stewart, conveyed to Crain lot No. 17, and the- four acres of lot No. 18, in fee ; and he gave them a bond to indemnify them and each of them against the claim of the Van Hornes.
    *In 1824, D. Van Horne and the heirs of R. Van Horne filed their bill against Crain, containing a general prayer for relief, but no specific relief was asked for therein. The defendant put in his answer, and filed a cross bill, setting forth many of the facts which were not mentioned in the original bill, and praying that the rights and interest of the parties in lot No. 17 might be ascertained, and partition made thereof; that an account be taken between the parties as to the rents and profits, &e., and for general relief. The cause was heard upon the pleadings, and a written stipulation of the parties as to the facts.

      J. V. Henry, for R. Crain:
    In this case both parties claim from the same persons. J. A. Stewart and T. Ten Eyck had no authority from the other joint owners to convey the premises in question to the Williamsons. Their lease, therefore, only passed their own interest. Crain has purchased, and is entitled to the entire reversion of the whole premises, after the determination of the life estate of the Van Hornes. The covenants of warranty, and to convey, contained in the lease and agreement to the William-sons, are indivisible. The Van Hornes having purchased only an undivided moiety of the premises from the Williamsons, have therefore no rights under those covenants. The court cannot modify these covenants, and convert them, being covenants for the whole, into covenants for parcels. Crain was not bound to unite with the Van Hornes in the purchase of the fee under the original lease and agreement. No action at law could be sustained on this agreement, and therefore this court cannot decree a specific performance. (Palmer v. Edwards, Dougl. 187, n. 59; 1 Saund. 287, and note; Dumper's case, 4 Coke, 119, 120; 3 Com. Dig. 128, Cond. O. 2; Spencer's case, 5 Coke, 16; Bridgman’s Index, tit. Agreement, 38; 2 Freem. 216, 217. id. 246.) This court has no power to vary the contract; (King v. Wightman, 1 Anst. 80; Jordan v. Sawkins, 4 Bro. Ch. Cas. 477;) nor to decree a specific performance of the contract when varied. (Earl of Worrington v. Langham, Pre. in Chan. 89; Champernoon v. Gubbs, id. 126.) Crain being entitled to a *life estate in seven-twelfths, and to the entire reversion of the whole of the premises in question, is entitled to a decree for a partition of the estate. Crain, in his purchase of the reversion, was not guilty of any fraud upon the Van Hornes.

      J. Platt, for Van Hornes:
    Although J. A. Stewart and T. Ten Eyck signed the conveyance to the Williamsons simply in their own names, and not in the names of the other joint owners; yet this is only a technical legal objection, and equity will intend that done which should clearly have been done. In 1814, Crain agreed to purchase- from the Yan Hornes their moiety of the premises. But he afterwards refused to execute the agreement, and purchased the whole of the reversion. He therefore possessed full knowledge of the title and claim of the Yan Hornes under the original lease and agreement. The Yan Hornes had made extensive improvements upon the property; and the purchase by Crain of the reversion and the taking advantage of the mistake in the signature of the original lease was a fraud upon the Van Hornes. But if the lease and agreement to the Williamsons were defectively executed, the defect was obviated by the subsequent ratification of the owners, who did not sign those instruments. The Van Hornes possessing equitable rights, have a remedy in Chancery ; and Crain having purchased with notice of their rights, has become a trustee for them. A parol authority to the persons who executed the original lease from the other joint owners, was sufficient, if clearly proved. (Wilkie v. Holmes, 1 Schoal & Lef. 60, note.) Equity will support defective conveyances, made for a valuable or meritorious consideration. (Minturn v. Seymour, 4 John Ch. R. 497; Thompson v. Atfield, 1 Ver. 40; Longdale v. Longdale, id. 456.) If Crain be considered a trustee, there can be no difficulty in decreeing a conveyance of the fee according to the terms of the original lease and agreement.
   The Ohahcellor :—The lease to Williamsons, and the agreement indorsed thereon, being' executed at the same time, and in relation to the same subject matter, may be construed together and taken as one instrument. Jackson v. *Dunsbagh, 1 John. Ca. 91.) Such was undoubtedly the intention of the parties, and this court ought to carry that intention into effect. The execution of the lease and agreement probably was defective. By some inadvertence I have not been furnished with the original instrument, or copies thereof. But I understand from the pleadings, that the lease, in its commencement, purported to be made between J. A. Stewart and T. Ten Eyck, for themselves, and as attorneys for A. Stewart, W. R. Stewart and W. Benson, of the first part, and the Williamsons of the second part; and that it was signed and sealed J. A. Stewart and T. Ten Eyck in their own names only, without any thing on the face of the instrument to show an intention to sign and seal it as attorneys for the other persons named. (9 Coke, 76 b; Bogart v. De Bussy, 6 John Rep. 94.) Ten Eyck had only a life estate as tenant by the curtesy, in one-sixth of lot No. 17, and the lease does not profess to convey the' interest of his daughter, who probably was under age at the time.

But in the view I have taken of this subject, the rights of the parties do not depend upon the extent of the interest which was actually acquired by the Williamsons under the lease of October, 1803. It was a valid lease of all the interest which J. A. Stewart and T. Ten Eyck then had in the premises. The lease contains a general covenant of warranty against the lawful claims of all persons. This covenant and the covenant to convey run with their interest in the land, and are binding on their heirs and assigns. If the assignees of the Williamsons could maintain an action on either of these covenants, against J. A. Stewart and T. Teh Eyck, they would have the same remedy against Crain as the assignee of the reversion of two-sixths of lot No. 17, and two-fifths of the four acre lot. If Stewart and Ten Eyck had purchased in the outstanding claim of the other persons, it would have enured to the benefit of their lessees by virtue of the covenant of warranty in the lease. (Jackson v. Stevens, 13 John. Rep. 316; Jackson v. Hubble, 1 Cowen’s Rep. 613.) And the same effect must be produced when it is purchased in by the assignee of the reversion, who is bound by the covenants *contained in the lease. (Per Holt, C. J., 6 Mod. Rep. 258, and Kent, J., 1 John. Ca. 91.)

An assignee of an undivided moiety of the leasehold premises, from the Williamsons, could maintain an action on the covenant of warranty contained in the lease; hut it is at least doubful whether he could maintain an action on the covenant to convey, without joining with the assignee of the other moiety. The covenant of warranty relates to every part and portion of the premises, but the covenant. to convey relates only to the whole. If the assignee of one moiety unconscientiously refuses to join with his co-tenant in doing any act which is for the benefit of the estate of both, a court of equity will compel him to join, or permit the co-tenant to do it for his own benefit, provided it can be done without injury to either. Such being the equity of the Van Hornes, as the assignees of a moiety of the premises under the lease and agreement, Crain could not defeat it by the purchase of the reversion.

He must, therefore, elect to convey to them a moiety of he premises, subject to the sub-leases of the fulling mill and carding machine lots, on receiving one-half of the purchase-money specified in the lease and agreement; or to convey the whole, subject to those sub-leases, they paying or securing the payment of the purchase-money in the manner mentioned in the lease and agreement. And there must be a reference to a master to state an account between the parties, of the rents and profits of the premises received by, or chargeable to them respectively; and of all sums paid by, or due to either for rent or repairs, or for other expenditures for the benefit of the leasehold estate. If Crain elects to convey a moiety of the premises only, the master must also examine and report whether the premises are so situated that a partition thereof cannot be made without great prejudice to the owners thereof; and with liberty to make a separate report on that subject. And all questions of costs and other questions and directions must be reserved.

       See 2 Cow. & Hill’s Notes to Phil. Ev. note 265, p. 518; and authorities there cited

       In Norman v. Wells, 17 Wen. 136, Mr. Justice Cowen discusses at large the doctrine of inherent covenants, running with the land, and of an assignable character in contra-distinction to those which are purely personal. See also 4 Kent. 97, 100.


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    *Pitney v. Leonard and Leonard.
    Where a person enters into possession of land under a conveyance from one claiming the title, such title is presumed to be good until the contrary is shown.
    Where a party has sufficient to put him on inquiry, it is equivalent in equity to actual notice
    In 1813, the defendant John Leonard purchased of J. T. Pitney 235 acres of land on the west end of lot No. 4, in Ovid, and went into possession thereof. In 1816, he purchased other 235 acres of the complainant, in the same lot adjoining the first purchase, for $3,800, and gave back a bond and mortgage for the purchase-money. The mortgage was never registered; and shortly after the last purchase, J. Leonard conveyed 116 acres of the mortgaged premises with warranty to B. Bryant. In 1819, S. W. Baldwin claimed the whole of lot No. 4, and brought ejectment suits against J. Leonard and others who were in possession. The suit against J. Leonard was defended by him, and was pending until May, 1825, when J. Leonard entered into an arrangement with Baldwin, under which a cognovit was given, and a judgment entered in the ejectment suit. An execution was immediately issued, and J. Leonard and B. Leonard his son who was living on the land as tenant to his father, were formally turned out of possession. As soon as Baldwin was in possession, he executed a quit claim deed for the 116 acres to the heirs of Bryant, and another to B. Leonard for the remaining 354 acres; the latter paying $200 in cash, and seeming the payment of $550 more, in full for the purchase-money.
    The complainant afterwards filed his bill in this cause to set aside the judgment and proceedings thereon as fraudulent against him, and to foreclose the mortgage against the 119 acres of the mortgaged premises which were not included in the deed to Bryant. The bill was taken as confessed against J. Leonard. B. Leonard put in a plea, which was Overruled, and he then answered the bill; and the cause was heard on pleadings and proofs as against him.

      A. Gibbs, for the complainant.

      W. Kent for defendant B. Leonard.
   The Chahoellor :—I have not thought it necessary to examine the question whether Aaron Pitney had the legal title to the land at the time he conveyed to J. Leonard. The latter went into possession under that title, which is to be presumed good until the contrary is shown. From the testimony adduced, there is no doubt the judgment in the ejectment suit was confessed for the purpose of destroying the lien of the complainant’s mortgage. It was fraudulent and void as against him; and it is hardly possible to believe B. Leonard was not acquainted with the real nature and object of the transaction. He had at least sufficient to put him on inquiry, and that in equity is equivalent to a notice. He admits that he knew of the bond and mortgage, and the judgment which Pitney had obtained against his father on the bond. He knew his father had been contesting the title against Baldwin for years; and as the lands lay within sight of the court house, he could not have supposed that they had been recovered on a trial in the usual way. The judgment was filed and docketed at Htica on the 18th of May. The execution was delivered to the sheriff on the 16th; and on the same day, after allowing himself to be turned out of possession with all due formality on an execution against his father, he purchased the 854 acres of land, worth more than $6,000, for the trifling consideration of $750; and both himself and father return back into possession thereof. Under all these circumstances, he either knew the real nature and object of these proceedings or remained wilfully and intentionally ignorant. The judgment in the ejectment suit, and the proceedings and change of possession of the mortgaged premises under the same, must, therefore, be declared fraudulent and void as against the complainant. There must be a reference to a master to compute the amount due on the bond and mortgage, and the usual decree for the sale of the *119 acres of the mortgaged premises, on the coming in and confirmation of the master’s report; and that the purchaser be let into possession on production of the master’s deed, and a copy of the order confirming the report of the sale. And if the mortgaged premises do not sell for sufficient to pay the costs, over and above the amount reported due, with interest, the costs, or so much as is deficient, must be charged personally on the defendants.

        Peters v. Goodrich, 3 Conn. 146; Booth v. Barnum, 9 Conn. 286; Hawley v. Cramer, 4 Cow. 717; Brush v. Ware, 15 Pet. 112; Jackson v. Cadwell, 1 Cow. 622; Tuttle v. Jackson, 6 Wen, 213; see also Am. Ch. Dig. by Waterman, tit. Notice.


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    F. Carter, by her next friend v. J. K. Carter.
    May 5th.
    Where the wife was entitled to an equitable allowance out of the separate estate of her husband, who was a lunatic, but of whose person and estate no committee had been appointed, the court ordered her separate property to be transferred to the assistant register, and that the income thereof be paid to her upon her separate receipt, until the further order of the court.
    In this case the wife, by her next friend, filed a bill against her husband to secure an equitable allowance out of two bonds and mortgages and certain stocks bequeathed to her by her father. The husband being a lunatic, the biR also prayed that a committee of his person and estate might be appointed by the court. The husband put in his answer by a guardian ad litem, appointed by the court for that purpose, and the facts were ascertained by a reference to a master.
   The Chancellor :—Upon the principle of the decision in Kenny v. Udal & Kenny, (5 John. Ch. Rep. 464,) the complainant has a claim in equity to so much of the property devised to her by her father as is necessary for her support and maintenance, and the husband is not entitled to assign the two bonds and mortgages, or the insurance stock in the bill mentioned, or to collect the principal or interest of the mortgage, or receive the dividends on the stock, until a suitable provision is made by him for her support. But as he is not now in a situation to make such provision, and cannot transact business until a committee is appointed for him, there must be a decree declaring the right of the *complainant as above, and directing an assignment and transfer of the said two bonds and mortgages and the said insurance stock to the assistant register of this court, to abide the further order thereof; and that he receives the interest on the bonds and mortgages, and the dividends on the insurance stock accruing from time to time, and pay the same over to the complainant on her separate receipt or order; and it is declared that the transfer and assignment of the said bonds and mortgages, and the twenty-two shares of Globe insurance stock to the said assistant register, by the said Frances Carter and by William T. McCoun, as guardian ad litem for the defendant, shall be valid and effectual to transfer the same as if the defendant was of sane mind, and had personally joined in such assignment.

The application for the appointment of a committee for the defendant to take care of his person, and of his other property, cannot be granted in this suit. It must be on petition, and a commission must be executed in the usual manner.


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    The Bank of Plattsburgh and others v. Platt and others.
    May 5th.
    Where a defendant in a bill of foreclosure, who was not personally liable for the mortgage debt, filed a cross bill and set up a defence which was not ultimately sustained, and thus in the mean time kept possession of and received the rents and profits of the mortgaged premises, and which premises, upon a sale thereof, were found insufficient to pay the amount due, he was decreed to pay the extra costs occasioned by his defence.
    The original bill filed in this cause was for the foreclosure of a mortgage given by the defendant Platt, which was a lien upon his hands only, he being by the terms of the mortgage expressly exempted from personal liability for the debt. After the filing of the bill, Platt conveyed the premises to Anderson, and set up that conveyance in his answer, and in a cross bill to defeat the foreclosure. The late Chancellor decided against the legality of the defence, and ordered a sale of the mortgaged premises; but by means of this defence the ^mortgagees were kept out of the possession, and were prevented from selling the premises, for about one year longer than they otherwise would have been.
    After the premises were advertised under the decree, the defendant Platt applied for a longer time and more extended notice of sale. This was granted on condition that he paid the rents and profits of the premises during the delay, if sufficient should not be raised on the sale to pay the debt. The premises were afterwards all sold, leaving nearly thirty-six thousand dollars still due to the complainants. A reference was made to the master, by consent of the parties, to ascertain the amount of the rents and profits of the premises during the time the sale was suspended under the last order. The cause was heard upon the master’s report of the sale, the report as to the rents, and exceptions of both parties thereto, and upon the equity reserved in the original decree.

      J. V. Henry, for the complainants.

      P. S. Parker, for the defendant Platt.
   The Chancellor :—I am satisfied, on looking into the master’s report, as to the rents and profits of the premises during the time the sale was suspended, that he has decided correctly as to the amount, and that under the order of the 5th of April, 1827, Platt is answerable for the rents and profits of the whole premises. As that order for the postponement of the sale was made for the exclusive benefit of Mr. Platt, he should pay all the extra costs occasioned thereby. The whole of the costs of the cross suit, and all the costs in the original suit, which were produced by the defence made by the defendant Platt, must also be paid by him. Although he may have supposed he had a valid defence to the suit for foreclosure, he put in that answer and filed his cross bill at the peril of costs. By the original mortgages and covenant, the complainants had a right to the possession of the premises, if default should be made in payment of the instalments. The setting up of this defence, and protracting the litigation, has deprived them of the rents and profits accrued in the *mean time, to the amount of several thousand dollars, of which he has had the benefit. There cannot, therefore, be any injustice in charging him with the extra costs which he has unnecessarily made.

A decree must be entered, giving to the purchasers under the decretal order of sale respectively, and their heirs and assigns, the full benefit of all the covenants of warranty, &c., in the original mortgages, and they are declared to run with the land and to enure to the benefit of such purchasers. The defendant Platt must also be decreed to pay $479 56, reported due for rents and profits, with interest thereon from the 24th of August, 1827, the date of the master’s report, which-report is confirmed. He must also be decreed to pay all the costs of the cross suit, and the costs which were made by his answer and defence in the original suit, to be ascertained and taxed by one of the taxing masters of this court; and also the sum of $142 10, for the extra expense of adjourning the sale as reported by the master.