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    Knickerbacker v. Harris.

    Where a paroi agreement was made for the purchase of a lot of land for the sum of $21 50 per acre, to be paid-in seven equal annual payments, and by the agreement, the grantor was to have the lot surveyed and to give a conveyance with warranty, on the payment of $300 by the grantee, and upon his executing to the grantor a bond and mortgage for the residue of the purchase-money: and the grantee went into possession under the agreement, and continued in possession 8 or 9 years, malting payments from time to time towards the land, for which the grantor gave receipts, specifying therein that the moneys received were in payment for the land, and that he, the grantor, was to give the grantee a deed therefor; the grantee made a payment of $333 soon after he went into possession, at the expiration of 8 years from the time the agreement was made, the grantor tendered a deed to the grantee, and demanded payment or security for the balance of the purchase-money, the defendant refused to accept the deed, alleging that it contained too much land, and that the grantor had included too much interest in the balance he claimed to he due, it was held, that neither party could take advantage of the agreement’s not being in writing, that it was too late for the defendant to object that the grantor had not caused a survey to be made of the lot, and delivered a deed therefor immediately after the first payment, that the defendant could only have put an end to the contract by tendering the balance due and demanding a performance of the contract on the part of the grantor; that a tender and demand made, *after a bill had been filed by the grantor for a specific per-" . fonnance, was a nullity.
    October 7th.
    Where a defendant in his answer only denies a fact charged in the bill, according to the best of his knowledge and belief, a single witness on the part of the complainant is sufficient to establish the fact.
    Where, in a bill filed for a specific performance of a contract for the sale of land, the complainant insisted upon the defendant’s taking two acres more than he was bound to take, and the defendant declined paying interest, which the complainant was entitled to, neither party was allowed costs.
    In September, 1815, the defendant agreed with the complainant to purchase of him a lot of land in Greenfield, in the county of Saratoga, supposed to contain about 100 acres, being the north part of lot No. 1, in great lot No. 2, in the 22d general allotment of the Kayaderosseras patent, north of and adjoining lands before that time sold by the complainant to William Seymour. The defendant was to pay $21 50 per acre for the land, the quantity to be ascertained on actual survey, and to be paid in seven equal annual payments. The complainant was to have the lot surveyed, and to give a conveyance to the defendant, with warranty, on his paying $300, or more, of the purchase-money, and giving to the complainant a bond and mortgage to secure the payment of the residue. The complainant alleged that the defendant was to pay interest from the time of the purchase. The defendant said he had no knowledge, remembrance or belief that by the terms of the original bargain any interest was to be paid. But one of the defendant’s witnesses testified that he understood from him, he was to pay interest after the first payment became due on the 20th of December, 1815. The contract for the purchase of the farm was not reduced to writing by the parties ; but the defendant went into possession of the lot under the agreement, and continued in possession until February, 1824. On the 23d of December, 1815, the defendant made a payment towards the land, and took a receipt from the complainant in the words following: “ Rec’d this 23d December, 1815, of John Harris, three hundred thirty-three dollars, in part payment of a piece of land which I am to deed to him, lying in the town of Greenfield, adjoining lands lately sold to William Seymour by me, which conveyance is .to be made as soon as the land can be run out. John *Knickerbocker, jun.” The defendant continued to make payments towards the lands from time to time, until the 23d of August, 1821, and took receipts therefor, specifying that the moneys received were in payment of the land, and that complainant was to give him a deed therefor. Several surveys were attempted, but the parties could not agree as to the location .and boundaries of the lot. In the fall of 1823, the complainant tendered to the defendant a deed, ,and demanded payment or security for the balance of the purchase-money. The defendant refused to accept the deed, alleging it contained too much land, and that the complainant had included too much interest in the balance claimed to be due. In January, 1824, the bill in this cause was filed to compel a specific performance, and in February thereafter the defendant made a formal demand for a deed from the complainant, but made no tender or offer to pay the balance then due. The complainant declined giving him any other deed than the one offered before; whereupon the defendant gave him a written notice that he considered the contract at an end, and demanded repayment of the purchase-money. The defendant afterwards commenced a suit at law -to recover back the money which had been paid; the proceedings in -which suit have been stayed by an order of this court.

      J. L. Viele, for the complainant.

      L. H. Palmer, for the defendant,
    cited Bogart v. Perry, (1 John. Ch. R. 52;) Parkhurst v. Van Cortlandt, (1 John, Ch. R. 274;) Hatch v. Cobb, (4 John. Ch. R. 559;) Benedict v. Lynch, (1 John. Ch. R. 370;) Lord Walpole v. Lord Orford, (3 Ves. 403, 420;) Buxton v. Lister, (3 Atk. 386;) Sugden’s Law of Vendors, 272.

       Reversed, see S. C., 5 Wen. 638.

   The Chancellor :—The agreement between the parties, although not in writing, has been so far carried into effect that neither party is now at liberty to make that objection. The defendant went into possession of the premises under the agreement, and occupied the same between eight and nine years; and the complainant, during the same period, has received the principal part of the purchase-money. It is *also too late for the defendant to object that the complainant did not cause the premises to be surveyed and give him a deed therefor immediately after the first payment. He has waived that objection by continuing to make payments towards the land for several years after-wards. This must be considered as an election, on his part, not to rescind the contract in consequence of that neglect on the part of the complainant.

In 1828, the purchase-money was all due, and the defendant could only put an end to the contract, at that time, by making a formal tender or offer to pay the balance due, and by demanding a performance of the contract on the part of the complainant. At the time the formal demand was made in February, 1824, this suit was pending to compel a specific performance of the contract; and the rights of the parties must be determined without reference to that transaction. If any effect is to be given to that proceeding, it is evidence that up to that time the defendant considered the contract in force, as he then demanded to have it fulfilled. It therefore becomes necessary to ascertain what that contract was, in order to do justice between the parties.

If the defendant, in his answer, had explicitly denied that he was to pay any interest, or alleged that the agreement was that the payments were to be made without interest, it would have been incumbent on the complainant to disprove that allegation in the answer by more satisfactory testimony. But a denial according to the best of his knowledge and belief, or in other words saying he has no recollection it was so, merely throws the proof upon the other party, and a single witness is sufficient to establish the fact.

In the first place, it is highly improbable that the agreement was that he should have seven years to pay for the farm without interest; as it is contrary to the usual mode of making such sales, where the purchaser goes- immediately into possession. In addition to this, we have the testimony of Thomas Scott, the defendant’s witness, that he told him he was to pay interest on the purchase-money from the 20th of December, 1815, the time he was to make the first *payment. The complainant therefore is entitled to interest on the purchase-money from that time.

As to the controversy about the two acres which were included in the lot conveyed to Seymour, more than he was entitled to, the defendant is not bound to take that land, although the complainant has now a perfect title to the same. At the time of his purchase, that land had been conveyed to Seymour. The defendant’s purchase was bounded on Seymour’s land, and did not include any part of it. He is only bound to take the land which he agreed for, without reference to any mistakes which had been made in the running out and conveying the land to Seymour. The land which the defendant is bound to take, is all that part of lot number one, in great lot number two, which lies north of the lands sold and conveyed to Seymour, and no other.

It must be referred to a master to ascertain the number of acres in the farm, and the amount which is still due thereon, estimating the land at $21 50 per acre, and computing interest from the 20th December, 1815; and on the coming in and confirmation of the master’s report, the defendant must pay the amount reported due, with interest from the date of the report, and the complainant must convey the premises to the defendant by a good and sufficient deed, with the usual covenants of warranty and seizin, to be settled by the master, and the injunction to restrain the defendant from proceeding at law must then be made perpetual.

As the complainant insisted upon the defendant’s taking the two acres of land covered by the Seymour deed, which he was not bound to take under his contract, and the defendant declined paying interest, which under the contract the complainant was entitled to, neither party is to be allowed costs as against the other.


source: Caselaw Access Project

license: Public Domain

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    *In the Matter of Howe, Executor, &c., of Anderson, Deceased.
    October 7th.
    Corporations cannot act as trustees in relation to any matters in which they have no interest.
    But where property is devised or granted to a corporation, partly for its own use and partly for the use of others, the right of the corporation to take and hold the property for its own use, carries with it, as a necessary incident, the power to execute that part of the trust which relates to others.
    Where an executor upon sufficient grounds applies to the court for direction, he will be permitted to retain the costs of the application out of the property of the testator, not specifically bequeathed.
    Nicholas Anderson, the testator, gave to the corporation of St. George’s Church, in New York, a legacy of $4,000, in trust that the same should be put out at interest, or vested in public stocks; and that the income thereof should be paid to his housekeeper for life, and after her death, the income thereof to be applied to-the purchase of a church library, the support of a Sabbath school in the church, and other church purposes to which the church contributions may be applied, agreeably to the canons of the Episcopal church. The counsel of the executor advised him that the corporation could not act as trustees of the legacy during the life of the housekeeper; whereupon, he applied by petition to this court for direction, and the corporation, housekeeper and the residuary legatee joined in the application, and submitted their rights to the decision and direction of the Chancellor.

      C. C. King for petitioner.
   The Chancellor :—It is a general rule that corporations cannot exercise any powers not given to them by their charters or acts of incorporation; and for that reason they cannot act as trustees in relation to any matters in which the corporation has no interest. But wherever property is devised or granted to a corporation, partly for its own use and partly for the use of others, the power of the corporation to take and hold the property for its own use carries with it, as *a necessary incident, the power to execute that part of the trust which relates to others.

In this case the substantial part of the legacy is for the benefit of the corporation; and the income thereof, after the death of the housekeeper, is to be applied to some of the purposes to which the rector, churchwardens and vestrymen are authorized to apply the general funds or temporalities of the church committed to their management. The testator had a right to limit his bounty to a part of the objects to which they might appropriate the general funds of the corporation. He also had a right to direct when the income should be applied for that purpose. If the corporation receive the legacy, it must be received charged with the payment of the interest or income to the housekeeper for life. The corporation must execute the trust in her favor, to enable them to obtain the fund which is after-wards to be appropriated to corporate purposes. The legacy must therefore be paid over to the rector, churchwardens and vestrymen, as the representatives of the corporators, who are bound to carry into effect the testator’s will in respect to the same.

As there was ground for taking the direction of the court in relation to this legacy, and the executor having submitted the question in the cheapest possible mode, he is entitled to retain his costs of this application out of the property of the testator which is not specifically bequeathed.

        Jackson v. Hartwell, 8 John. 422.


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    Reed v. The Bank of Newburgh.
    October 7th.
    A defendant, in a suit at law, who has a separate demand against the plaintiff which is not a subject of offset there, cannot have relief in Chancery unless the plaintiff is insolvent.
    But if his demand arises out of the same transaction as that of the plaintiff, so that in equity the plaintiff would have no right to recover against him, and the defendant cannot avail himself of his defence at law, he will be relieved in Chancery.
    Although a person has a perfect remedy at law to recover for the breach of an agreement connected with a note, if he cannot avail himself of it as a defence to an action on the note, he can come into Chancery to have the note cancelled, and to recover the balance, if any, which may be due him;
    *In March, 1826, the defendants agreed to loan the complainant $20,000 on his note, at 6 per- cent., payable on demand, and for which he was to transfer stock of the Tradesmen’s Bank, as collateral security, to the value of 10 per cent, above the loan, to be determined by the value of such stock.in the market, and upon which stock it was agreed the complainant should have a proxy to vote for directors of the Tradesmen’s Bank, and that no greater sum than $5,000 of the note should be demanded or drawn for at sight in one day. In pursuance of this agreement, the loan was made, and the complainant transferred 450 shares of stock as collateral security to John S. Hunn, as cashier of the Bank of Newburg, and received from him a proxy to vote on those shares. An election of directors of the Tradesmen’s Bank took place on the 3d of July, 1826, when the cashier Hunn, acting under the direction of the defendants, revoked the proxy, and himself voted for directors, against the will of the complainant, and for the purpose of giving to the defendants a controlling influence in the Tradesmen’s Bank, against the interest of the complainant, and notwithstanding his remonstrances to the contrary. The defendants having violated their agreement by revoking the proxy, the complainant tendered to the cashier the amount of his note and. interest, and demanded are-transfer of his stock, which was refused. At the time of the said , tender, and demand of the transfer, the stock was worth, and was actually selling in the market, from 15 to 22 per • cent, above par, and the complainant at that time purchased a large amount, and was compelled to ,pay at that rate for the same; but the stock has now depreciated, and is from 20 to 30 per cent, below par; and since the depreciation of the stock, the defendants have demanded payment of a part of the loan, or additional security, and threaten to dispose of the stock at its present value, and after crediting the proceeds thereof on the note, to prosecute the complainant for the balance. The complainant in his bill prayed that the defendants might be compelled to account for the stock at its value on the 3d of July, 1826, after deducting the loan and interest thereof up to that time; and that the note might be delivered up and cancelled; and for general relief.
    *The defendants demurred, both as to the discovery and relief sought by the bill, on the ground of the want of equity.

      H. Bleecker, in support of the demurrer,
    contended that this was not a case of fraud, but merely a violation of contract; that the complainant had a perfect remedy at law; that every matter of account was not entertained in Chancery ; that to sustain a bill for an account, there must be mutual demands, not a mere set-off or a single transaction. He cited Cooper’s Pl. 125, 139; 1 Maddock, 70, 205; Post v. Kimberly, (9 John. R. 501;) Dinwiddie v. Bailey, (6 Ves. 136;) Porter v. Spencer, (2 John. Ch. R. 171.)

      S. P. Staples, contra:
    The complainant has not an adequate remedy at law. Where there are difficulties at law, Chancery will entertain jurisdiction. So, where at law a multiplicity of suits must be brought, relief will be given in equity. In the present case, there would be a difficulty in litigating the note at law. The complainant would be compelled to pay the note before he could sue upon the agreement to transfer the stock. He could not offset his damages against the note. His remedy therefore being at law uncertain and difficult, the court will not refuse to entertain jurisdiction. The defendants are trustees with an interest, which trust they have violated. They took an unconscientious advantage of the complainant, in which cases Chancery always relieves. A court of equity frequently entertains jurisdiction in cases where the party has a remedy at law. It does so from its power to give mutual advantages. It has power in this case to order the note to be cancelled, whether a defence may or may not be made to it at law. The counsel cited, in support of his positions. Colt v. Netterville, (2 Pr. Wms. 303, 4;) Cud v. Rutter, (1 Pr. Wms. 570;) Lady Ormond v. Hutchinson, (13 Ves. 51;) Lyon v. Tallmadge, (14 John. R. 513;) Campbell v. French, (2 Cox’s R. 366;) Clifford v. Brooke, (13 Ves. 133;) Evans v. Bicknell, (6 Ves. 172;) Davis v. Todd, (4 Price, 176; Hamilton v. Cummings, (1 John. Ch. R. 517, 523;) Bromley v. Holland, (7 Ves. 3.)
   *The Chancellor :—It is doubtful whether the matters stated in the complainant’s bill would afford him any valid defence to an action on the note in a court of law. Although he may have a perfect remedy at law to recover for the breach of the agreement by the defendants, if he cannot avail himself of it as a matter of defence to an action on the note, he has a right to come here for the purpose of having the note cancelled, and to recover the balance which may be due to him. If a defendant in a court of law has a distinct and separate demand against the plaintiff, which is not a proper subject of off-set there, he cannot generally come into this court for relief, unless the plaintiff is insolvent. His proper course is to pay the plaintiff’s demand, and then prosecute for his own; but if his claim arise out of the same transaction or contract as that of the plaintiff, so that in equity the plaintiff never had any right to recover against him, if the defendant cannot avail himself of his claim as a defence at law, he may come into the court for' relief. He is not'obliged to pay an unjust demand, although' may recover back a greater amount in damages in a suit instituted by himself.

If the allegations in the complainant’s bill are true, he has a right to insist that the defendants keep the stock, at its market value at the time they violated the agreement and refused to re-assign to him; and that they pay the balance, after deducting the amount of the loan and interest" up to that time.

Demurrer overruled, with costs.


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    *The President, Directors and Company of the Fulton Bank v. The Sharon Canal Company, The New York and Sharon Canal Company and others.
    October 7th.
    As a general rule, a mere witness cannot be made a party defendant.
    But suits against corporations are exceptions to this rule. As they do not answer upon oath, the only means of obtaining a discovery from them is to make their officers and agents parties, and to compel such officers-and agents to answer the bill.
    The former as well as the present officers of a corporation can be made parties to a suit against such corporation, and compelled to make discovery of facts within their knowledge.
    In March, 1827, the complainants filed a bill in this cause against the above-named corporations. They made George W. Brown, the former president, and Matthew Reed, a former director of these companies, parties to obtain a discovery of certain transactions, in which it is alleged they were engaged as such officers. Most of the transactions referred to are previous to September, 1826.
    To this bill Beed put in a plea, alleging that previous to the 14th of September; 1826, he parted with and conveyed away all his interest in the stock of these companies; since which time he has not been a director, stockholder or member of the finance committee, or had any interest in either of the companies.

      J. Hoyt for the complainants.

      S. P. Staples for the defendant Reed.
   The Chancellor :—The equity of the complainants’ bill is not founded upon any interest which the defendant Reed has in the stock of the companies against which relief is sought. It depends upon the question whether the directors and agents of those' companies had knowledge of, and sanctioned the manner in which the deposits were drawn from the Fulton bank, and whether the deposits thus drawn were applied to the purposes of those companies by the defendants Brown and Reed. This is one of the exceptions to the general rule that a mere witness cannot be made a party defendant.

*Corporations do not answer on oath, and the only way in which a discovery can be obtained from them is through the medium of their agents and officers who are acquainted with the transactions. In Moodalay v. The East India Company and Morton, (1 Bro. Ch. Rep. 469,) the secretary, having no interest in the company, was made a defendant, for the purpose of obtaining a discovery. And in Wych v. Meal, (3 P. Wms. 311,) Lord Talbot shows the reasons on which this exception to the general rule is founded. Those reasons apply as well to the former as to the present officers of the corporation, when the knowledge of the facts of which the discovery is sought rest only with such officers, and especially when it relates to their own official acts. The defendant Reed must answer the complainants’ bill and make the discovery which is sought thereby. What is to be the effect of his answer as to the other defendants, and the final disposition of this suit as to himself, are questions which do not arise under this plea.

Plea overruled with costs.


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    Hosford v. Nichols and others.
    October 21st.
    Where a mortgagee parts with all his interest in the mortgage to a third person, hut does not assign it, and he afterwards obtains his discharge under the insolvent laws, the mortgage will not pass to his assignees under those laws.
    Where a contract for the sale of land in this state was made between two of its citizens, one of whom removed to Pennsylvania, where the contract was afterwards executed, by giving a deed and taking a mortgage on the premises to secure the payment of the purchase-money, in which mortgage the New York rate of interest was reserved, which was greater than that of Pennsylvania, it was held that the giving the deed and taking the mortgage was only a consummation of the original contract made in this state, and that the mortgage was not void for usury.
    Whether a contract made in this state for the sale of lands in another state, upon credit, reserving interest at the legal rate of the state where the lands are situated, would be void if the rate of interest exceeded that allowed by our laws? Quoere.

    As a general rule, interest is payable according to the laws of the place where the contract is made.
    *But where a contract is made in reference to the laws of another country, and is to be performed there, the interest is to be calculated agreeably to the laws of the place where the contract is to be performed.
    Title to real estate can only be acquired or lost according to the law of the place where it is situated.
    This rule applies to mortgages as well as to the deeds absolute.
    The laws of other states must be proved, otherwise the courts of this state cannot take notice of them.
    Previous to the year 1802, and while Elisha Kane lived at Albany, he made a contract with J. B. Nichols to sell to him lot No. 82, in Marcellus, and in pursuance of the agreement, Nichols paid to the agent of Kane in Albany, about $1,500 of the purchase-money. On the 23d of June, 1804, after Kane removed to Philadelphia, Nichols went there and obtained a deed of the lot, and gave back a mortgage for the balance of the purchase-money, conditioned to pay $1,155 in two years thereafter, with lawful interest of the state of New York thereon, payable annually. E. Kane was indebted to his brother, James Kane, and to J. & A. Kane in a considerable amount, and shortly after the execution of the bond and mortgage, they were sent to James Kane, at Albany, and he continued to receive the payments thereon of Nichols, and he credited the proceeds to the account of E. Kane. Previous to June, 1806, Nichols sold and conveyed to divers persons the whole of the mortgaged premises, except 150 acres, and the purchasers and their assigns have ever since occupied and possessed the same under those conveyances. On the 23d of March, 1820, Nichols mortgaged to the defendant, Monk, 80 acres of the 150 then belonging to him, to secure the payment of $369. In 1822, the owners of that part of the lot which had been conveyed by Nichols, made an agreement with James Kane, who then claimed to be owner of the mortgage, to purchase the same, for the purpose of protecting their titles, and enforcing the same against the 150 acres; and on the 4th of November, 1822, he procured an assignment from his brother Elisha, to Solomon Judd, of the bond and mortgage. Judd afterwards assigned the same to S. French and others, who subsequently assigned to the complainant. A suit was brought by the assignees in the ^Supreme Court, in the name of Elisha Kane, on the bond ; and in February, 1825, a judgment was recovered in that suit against Nichols, for the penalty of the bond, with costs. In July, 1825, the complainant filed her bill against the mortgagor, and against Monk, the mortgagee of the 80 acres, T. J. Nichols, a lessee of the 150 acres, and the judgment creditors of J. B. Nichols, to have the mortgage satisfied out of the remaining 150 acres, which, it was alleged, were amply sufficient for that purpose without resorting to the lands which had been previously sold and conveyed. The bill was taken pro confessa against the judgment creditors. The defendant, T. J. Nichols, claimed no interest in the premises, except as a lessee of the same, for three years, on shares. The defendants, Monk and J. B. Nichols, admitted the execution of the bond and mortgage, but insisted that the same were void because the rate of interest reserved exceeded the legal rate of interest in Pennsylvania. They also alleged, that in 1815, Elisha Lane failed, and assigned his property to assignees, and that the bond and mortgage were included in that assignment, and that he had no interest in the mortgage at the time of the assignment thereof to Judd. Monk also claimed to have the part of the 150 acres which was not included in his mortgage first sold, if a sale should be ordered.

      See Chapman v. Robertson, 6 Paige, 621.

      D. Kellogg, for the complainant:
    There is no evidence that the rate of interest in Pensylvania is less than in this state. The proof offered to establish this allegation of the defendants is parol. Such proof of a foreign statute is incompetent evidence. (Kenny v. Van Horne and Clarkson, 1 John. R. 394.) The defendants do not set forth the usurious agreement specially. This was necessary. (1 Saunders, 295, a. b.) The contract for the sale of the lot in question was made in this state, and in reference to the laws of this state. The rate of interest here must, therefore, govern. (Fanning v. Consequa, 17 John. R. 518; Thompson v. Ketchum, 4 John. R. 285.) Interest is to be calculated according to the laws of the place where the contract is made payable. (Sir John Champant v. Ranelagh, Precedents in Ch. 128; Eakins v. East India Co., 1 Pr. Wms. 396; Connor v. *Earl of Bellemont, 2 Atk. 382; Fonbl. 2, 242; 2 Burr. 1077; 3 Atk. 727.) Kane is an incompetent witness to impeach the bond and mortgage, a recovery at law having been had upon the bond, and its validity thereby established. (Van Schaick v. Edwards, 2 John. Cas. 355.) The legal and equitable interest in the bond and mortgage is in the complainant. The only evidence of the proceedings under the insolvent laws of Pennsylvania, and of the assignments by Kane under those laws of all his real and personal property, is paroi, which is inadmissible. (Fox v. Reid, 3 John. R. 477; Willoughby v.
      Carleton, 9 John. R. 136.) The assignments by Kane under the insolvent laws of Pennsylvania did not pass any interest in the bond and mortgage, they having been previously delivered by Kane to his brother for a valuable consideration, and his equitable interest therein having passed on that delivery. (Runyan v. Mersereau, 11 John. R. 534.) It was not necessary to make all the grantees of J. B. Nichols, parties to this suit. It is proper only to make such persons parties as are parties to the interest involved in the issue, and who must necessarily be affected by the decree. (Wendell v. Van Rensselaer, 1 John. Ch. R. 349; Cockburn v. Thompson, 16 Ves. 325.)

      J. R. Lawrence, F. G. Jewett and J. Rhoads for the defendants:
    The bond and mortgage in question were given in Pennsylvania, and a greater rate of interest was reserved thereon than was allowed by the laws of that state. They were, therefore, usurious and void. At all events, the legal rate of interest in Pennsylvania only can be charged. (Van Schaick v. Edwards, 2 John. Cas. 355; Dewolf v. Johnson, 10 Wheat. R. 367; De War v. Span, 3 Term R. 425.) The complainant took the assignment of the bond and mortgage as agent, or in trust for the grantees of J. B. Nichols. They ought, therefore, to have been made parties. Not having been made parties, the bill ought to be dismissed. (Hopkins v. McLaren, 4 Cowen’s Rep. 677; Malin v. Malin, 2 John. Ch. R. 238; 7 John. Ch. R. 198, General Index.) All the interest of E. Kane in the bond and mortgage passed by the assignments made under the bankrupt law of the Uni^d ^States, and the insolvent laws of the state of Pennsylvania. The complainant, therefore, acquired no title under the assignment to him. If the decree should be in favor of the complainant, that part of the lot not covered by the defendant Monk’s mortgage ought to be first sold.

       The case of Chapman v. Robertson, 6 Paige, 627, is so analogous, that a statement of the points on which it was decided will repay the trouble of insertion. Robertson, a resident of New York, applied to Chapman, at his residence in England, for a loan of money, upon the security of a bond and a mortgage on lands in New York and at the legal rate of interest in that state, and it was agreed that upon the return of Robertson to New York he should execute his bond and mortgage, and have the mortgage duly recorded in the county where the lands were situated, and that Chapman, on receipt of the bond and mortgage in England, should deposit the money loaned with the bankers of Robertson in London, for his use: the bond and mortgage were executed, and the money received. Held, that the mortgage was a valid security for the loan according to the laws of New York; and that upon a bill filed there to foreclose the mortgage, Robertson could not sot up the usury laws of England as a defence to the suit. And that, although the construction and validity of a contract, which is purely personal, depends upon the law of the place where the contract is made, unless it is made in reference to the laws of some other place or country where it is to be performed ; yet the transfer of lands or other heritable property, or the creation of any interest in, or lien thereon, must be made in conformity to the local laws of the place where the property is situated.
      Mr. Story dissents from some of the principles advanced in this decision, see Conflict of Laws, sec. 293, c. 1.
      “ The law of the place,” says Chancellor Kent, “ where the contract is made is to determine the rate of interest, when the contract specifically gives interest; and this will be the case, though the loan be secured by a mortgage in lands in another state, unless there be circumstances to show that the parties had in view the laws of the latter place in regard to interest. "When that is the ease, the rate of interest of the place of payment is to govern.” 2 Kent, 460. See also D'Wolf v. Johnson, 10 Wheat. 367; Scofield v. Day, 20 John. 102; Thompson v. Powles, 2 Simons, 194; Robinson v. Bland, 2 Burr, 1077; Boyce v. Edwards, 4 Peters, 111.

   The Chancellor :—The objection for want of parties is not well taken. Although French and others are interested in the proceedings in this cause, they are not necessary parties. Their assignment to the complainant is absolute and unconditional; and although by the covenant therein they are responsible to her in case she does not succeed in recovering the money on the mortgage, it would have been improper to have made them complainants. Eeither was it necessary to make all the owners of the land covered by the mortgage parties to the suit. It is stated in the bill, and admitted in the answers, that the one hundred and fifty acres remaining unsold is amply sufficient to satisfy the mortgage debt. Eo question of contribution can arise, as by the settled law of the court that part of the premises must be first applied to satisfy the mortgage. If the complainant chooses to rely upon that security alone, it does not lie with the defendants to object that she has omitted to increase the costs against them by unnecessarily making the owners of other parts of the lot parties to the suit.

The objection that the mortgage was purchased with moneys raised by the sale of the lands of Nichols, under a void execution, is not supported by the proofs in the case. There is no judgment, execution or sheriff’s deed produced to support the allegation in the answer. If the sale was regular, Nichols has no right to complain of the application of the purchase-money; and if the proceeding was void his title was not affected thereby, and he has no claim to the amount of the nominal bid.

The defendants have also failed in showing that nothing passed by the assignment of the mortgage to Judd. The objection of the complainant to the parol proof of the assignments by Elisha Kane is well taken. The original assignment should have been produced and proved by the subscribing *witness, or some evidence should have been given that it was impossible to obtain it. But if such evidence had been adduced, I think there is sufficient testimony in the case to show that in 1815 the equitabl interest to the balance due on the mortgage belonged to James Kane, so that nothing could pass by the assignments under the insolvent laws of the United States, or of Pennsylvania. If so the complainant obtained both the legal and equitable title to the mortgage through the assignment made to Judd by Elisha Kane, with the assent of his brother, who had the equitable interest. As to the question of usury, I am inclined to think, under the circumstances, whatever may be the laws of Pennsylvania on the subject, that the mortgage reserving New York interest cannot be considered as usurious. In this case, the contract for the sale of the land was made in this state, and while both parties resided here. I think it is fairly inferable from the testimony that the subsequent giving of a deed and securing the balance of the purchase-money by a mortgage on the premises, was only a consummation of the original bargain made here, and not in pursuance of any new agreement to extend the time of payment.

Whether a contract made here for a sale of lands in another state, on credit, reserving interest at the legal rate of the place where such lands are situated, would be void, if such rate of interest exceeded the amount allowed by our laws', is a question which does not appear to be settled by any decision of our courts. The question was raised in Van Schaick v. Edwards, (2 John. Cas. 355,) and the judges were divided in opinion, and the cause was finally decided on another ground. In Dewar v. Spark, (3 T. R. 425,) the Court of King’s Bench held that a bond given in England in pursuance of an agreement to give further time of payment for the purchase-money on a West India sale, reserving six per cent, interest, was usurious and void.

It is a general rule that interest is payable agreeably to the law of the place where the contract is made. But in Fanning v. Consequa, (17 John. R. 511,) the Court of Errors decided, that where a contract was made in reference to the laws of another country, and to be performed there, *the interest was to be calculated agreeably to the laws of the country where the contract was to be performed.

It is a well settled rule, that any title or interest in land or real estate can only be acquired or lost agreeably to the law of the place where the same is situated. And this principle applies as well to mortgages as to conveyances absolute, (Cutler v. Davenport, 1 Pick. R. 81.) If a statute of Pennsylvania should declare all deeds executed in that state void, wherever the lands might be situate, unless they were executed in the presence of two witnesses, can there be any doubt that a deed of lands in this state, executed there, in the presence of one witness only, would be valid if it was afterwards acknowledged and recorded here agreeably to our own laws ? In the case before me, the mortgage, after its execution in Philadelphia, was duly acknowledged in this state before one of the judges of the county of Onondaga. Whatever, then, may have been the legal effect of its original execution at Philadelphia, by this subsequent act of the mortgagor it became a good and valid lien upon the land for the security of the purchase-money, and New-York interest, agreeably to the laws of this state. It is also too late for the mortgagor to object that the bond was illegal and void. An action has been brought against him in a court of this state, and the judgment obtained thereon is conclusive evidence against him as to the validity of the bond.

Again, there is no evidence in this case to show that the bond and mortgage were not both valid by the law of the state where they were originally executed. E. Kane testifies that at the time of their date, and for some years previous, six per cent, was the legal rate of interest in Pennsylvania. But it does not appear that any law existed in that state which prohibited the parties from agreeing upon a higher rate of interest, or declaring securities void in which a higher rate of interest was reserved. And courts of this state cannot take notice of the laws of other states unless they are proved in the same manner as other facts, (Thompson v. Ketchum, (8 John. 189; Church v. Hubbart, 2 Cranch, 186.)

*The result of this opinion is, that the mortgage, in the hands of the complainant, is a valid and subsisting lien on the premises; and she is entitled to satisfaction of the amount due thereon, with interest, at the rate of seven per cent., after deducting the payments which have been proved, and the costs of this suit, out of that part of the 150 acres remaining unsold, and described in her bill of complaint, which is not covered by Monk’s mortgage; and if that is insufficient, the 80 acres covered by Monk’s mortgage must be sold, and the deficiency satisfied out of the proceeds thereof.

There must be a reference to a master to compute the amount due to the complainant on her bond and mortgage, and to the defendant Monk, on his; and on the coming in and confirmation of the master’s report, the 150 acres, or so much thereof as may be necessary, must be sold in manner aforesaid on the usual notice, and out of the proceeds of the sale the master must pay to the complainant the amount reported due to her, with interest and costs; and the defendant Monk will be entitled to his costs out of the residue. And if the 80 acres is sold, he will also be entitled to have the surplus, or so much thereof as is necessary, applied to satisfy the amount due on his mortgage; and the residue of the purchase-money, if any remains, must be brought into court to abide the further order thereof. The master to execute deeds to the purchasers; and the defendants, and all who have come into possession under them, must deliver up to the purchasers peaceable possession of the premises, on producing the master’s deed and a copy of the order confirming the report of the sale.


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    *James v. Hubbard and others.
    Where certain lands upon which a judgment is a lien are advertised for sale under such judgment, part of which lands have been previously sold by the debtor, and there are other lands of the debtor unsold, but the lien of the judgment would expire before such other lands could be advertised and sold, the owner of the judgment in such case, would not be bound upon the requisition of the purchaser from the debtor to abandon the sale of the lands so advertised.
    The proper course of such purchaser would he to offer to pay the amount of such judgment and to take an assignment of the same; and then by filing a bill against all the parties in interest before the expiration of the lien of the judgment, it seems such purchaser would be able to preserve the lien so far as to compel contribution upon equitable principles.

      October 21st.
    A judgment creditor cannot enforce his judgment against the land of a subsequent purchaser, so long as there are other lands of the debtor sufficient to satisfy the judgment.
    Where there are successive purchasers there is no contribution, and their lands are chargeable with the judgment against the debtor in the inverse order of alienation; that is, the last sold are to be first charged.

    In such cases the equities between the several purchasers are equal, yet the first purchaser, having the prior equity, is preferred.
    The priority of equity is not determined by the date of the conveyance, hut by the contract for the purchase of the land and the payment for the same.
    A judgment creditor is not bound to decide at his peril upon the equitable rights of the owners of different portions of the land upon which he has a lien.
    If the land of the purchaser who has a prior equity is first sold, he can compel the other purchasers to refund to him the amount they were benefited by such sale.
    If a judgment creditor discharges from the lien of his judgment a part of the lands which ought to be first resorted to, the owner of other parts of the lands who has a prior equity will be entitled to a deduction from the judgment of the value of the lands so discharged, before his lands are resorted to for the satisfaction of such judgment.
    On the 4th of December, 1815, Jacob Tuckerman gave to the defendant Hubbard, a bond and warrant to secure the payment of $1,020 and interest; on which a judgment was entered in the Supreme Court on the 15th of the same month. And by a written agreement of Tuckerman, the execution "was to be issued at any time, without the necessity of reviving the judgment by scire facias. On the 25th of December, 1816, a part of the lands of Tuckerman, which were subject to the lien of the judgment, were sold by him to George Dudley; and the complainant after-wards obtained title to the same by purchase under an execution against Dudley. On the 14th of February, 1817, Tuckerman conveyed to J. G. Curtis one-tenth, and to James McConnell two-tenths of ten acres; on the 28th of March, 1817, to D. Blakesley twenty-one acres; on the 16th of November, 1817, to J. N. Reynolds half an acre and fourteen and a half rods; on the 18th of May, 1818, to John Edgerton, three acres; on the 22d of July, 1818, to "Elijah Philleo about half an acre, and another piece containing about one hundred and three acres and three-fourths ; and on the 9th of July, 1819, seventy-nine and a half acres of land to Jesse Blodget, all of which lands were in the county of Madison. Tuckerman had another piece of land in Bridgewater, Oneida County, which was under a mortgage for the purchase-money; which mortgage has been subsequently foreclosed in Chancery. Hubbard also held a junior mortgage on the Bridgewater lot. In October, 1825, he caused an execution to be issued on his judgment to the sheriff of Madison, and directed J. G-. Stower, his agent, to ascertain what lands were bound by the judgment, and to have the same advertised and sold. On the 25th of October, the sheriff advertised the above-mentioned lands in that county to be sold on the 6th of December then next. On the 25th of November, 1825, James procured a judge’s order, staying all proceedings on the execution, for the purpose of enabling Mm to apply to the Supreme Court for directions to the sheriff as to the order of sale. This order was subsequently revoked, on the ground that the lien of the judgment would expire before the next term of the court; and the sale was adjourned, by direction of Stower, until the 10th of December, which, it was then supposed, was the' day previous to the expiration of the lien of the judgment. On the 6th of December, 1825, the agent of the complainant informed Stower he should require that the *lands be sold in the inverse order of their alienation. At the time of the sale the complainant’s agent gave a written notice to the sheriff, stating the order of alienation, which was correct, (except as to the date of two of the deeds, which did not alter the order of alienation,) and requiring that the lands should be sold in the inverse order of such alienation. He also gave notice to the sheriff that the judgment was a lien upon lands in Bridgewater, Denmark, and in Willsborough, in the county of Essex, and forbidding the sale of the lands advertised, until those lands should be first sold under the judgment. He also offered to bid on the lands aliened after the deed to Dudley the full amount due on the execution. After the pieces of land conveyed to Blodget, Edgerton, Blakesley, and the first piece conveyed to Philleo had been sold and bid in by the complainant’s agent, Lockert Berry, the owner of the second piece conveyed to Philleo, claimed to have it exempted from the sale, and gave a written indemnity to the agent of Hubbard; whereupon Stower directed the sheriff to sell the lot conveyed to Dudley, and the same was bid in for Hubbard at $950. Berry died in January, 1826.
    On the 8th of September, in the same year, the complainant filed his bill in this cause against the sheriff and Hub. bard and against the heirs of Berry, stating substantially the above facts, and also charging that the judgment of Hubbard was never due, or that it had been satisfied, and was kept up by fraud, for the purpose of charging the lands which had been conveyed by Tuckerman; and also charging that the latter had lands in Bridgewater, Denmark and Willsborough, which ought to be first subjected to the lien of the judgment, and praying that Hubbard might be decreed to give up the sheriff’s certificate; that the sale of the complainant’s lot might be declared void, and the sheriff enjoined from giving a deed, and for general relief.
    The defendant put in his answer, denying all fraud, and fully explaining his transactions with Tuckerman; showing the judgment unsatisfied, except $13, which, through mistake, he had omitted to credit; and showing a large balance due to him from Tuckerman, over and above the judgment; *also showing the foreclosure and sale of the Bridgewater lands under an old mortgage to L’Hommedieu; and denying, that to his knowledge or belief, there were any lands in Denmark or Willsborough subject to the lien of the-judgment; admitting that Stower was his agent in relation to the execution, but denying all knowledge of the order of alienation of the lands at the time of sale, except so far as the information was conveyed to Stower and the sheriff at the time of sale; and admitting, substantially, all the other facts, but alleging that the title of Tuckerman to the Berry farm was doubtful at the time of the sale, and that a recovery was had against the claimants of other lands held under the same title, which verdict was set aside on account of some formal defect in taking the testimony under a commission only.
    A part of the heirs of Berry, who were infants, put in a general answer by their guardian, and the bill was taken pro confesso against the other defendants.

      J. King & J. V. Henry, for complainant:
    The lots of land subject to the judgment of Hubbard ought to have been sold in the inverse order of their alienation by Tuckerman, the debtor. (Clowes v. Dickinson, 5 John. Ch. R. 235; Gill v. Lyon, 1 John. Ch. R. 447; Lanoy v. The Duke & Dutchess of Athol, 2 Atk. R. 446; Evertson v. Booth, 19 John. R. 491; Galatian v. Erwin and others, 1 Hop. R. 49; Hays v. Ward, 4 John. Ch. R. 123.) The complainant has not lost his right of having the lots sold in the inverse order of their alienation by neglecting to apply to the court before the sale. All the complainant was bound to do, was to require the sheriff at the sale to sell in the order settled in equity; leaving the owners to ascertain such order among themselves. When the request was made to do equity, if any objection existed as to title or otherwise the judgment creditor should then have stated it.

      G. C. Bronson, for defendants:
    Until the day of sale, neither Hubbard’s agent or the sheriff had any information as to the order of sale. It is not against equity for a judgment *creditor to sell land first aliened by the debtor before resorting to land subsequently sold by him. The owner of the land first aliened must apply to Chancery before the sale, or he loses his right of having the lands bound by the judgment, sold in the inverse order of their alienation by the debtor. This principle is recognized in Clowes v. Dick

      inson, (5 John. Ch. R. 235.) and in Gill v. Lyon, (1 John. Ch. R. 447.) If the complainant had filed his bill and obtained an injunction, the lien would have been preserved by statute. A judgment creditor warrants the title to the land sold under his judgment by the sheriff. (1 R. L. 504, sec. 11.)

        Crafts v. Aspinwall, 2 Comst. 289; 2 R. S. (4th ed.) 625, secs. 92, 93.

   The Chancellor :—The charge of fraud made against the defendant Hubbard, is fully met and disposed of by the answer and proofs. It is also denied in the answer, that Tuckerman had any lands in Willsborough or Denmark which were subject to the lien of the judgment, and no evidence is adduced to support that allegation in the bill. The situation of the Bridgewater lands is also fully explained in the answer.' If there had been other lands in the counties of Oneida, Lewis or Essex, or even in the county of Madison, which were subject to the lien of this judgment, it could have made no difference in this case, as the hen of the judgment would have expired before those lands could have been advertised and sold. If the complainant wished to have those lands first applied, he should have offered to pay the amount of the judgment to Hubbard, and have taken an assignment of the same, if there was time to advertise and sell. But as there was not, it is probable, that by filing a bill against the several parties in interest before the expiration of the ten years, he might under the equity of the statute, (sess. 36, ch. 50, sec. 1, 1 R. L. 500,) have preserved the lien so far as to compel contribution according to equitable principles. At all events, if the remedy was gone as it respected himself, he had no right to require that Hubbard should lose the benefit of his hen on the lands which were advertised by the sheriff.

The only question then in this case is, what was equitable between the parties in relation to the lands actually *advertised by the sheriff of Madison ? In Clowes v. Dickinson, (5 John. Ch. Rep. 235,) it was decided that a judgment creditor had no right to enforce his judgment against the land of a subsequent purchaser, so long as there was other land remaining in the hands of the judgment debtor or his heir at law, sufficient to satisfy the lien. In that case, also, a pretty strong opinion is intimated by the court, that as between successive purchasers there is to be no contribution, but their lands are chargeable with the incumbrance in" the inverse order of alienation: that is, the lands of the last purchaser are to be first charged. The eleventh section of the act concerning judgments and executions, (1 Rev. Laws, 503,) provides, that where lands or tenements, in the hands of several persons, shall be liable to satisfy any judgment or debt of record, and the whole, or more than a due proportion, shall be paid by or levied upon the lands of any one or more of them, the person aggrieved may have a writ out of Chancery, setting forth his or their grievance, directed to the justices of the Supreme Court, commanding them to hear the complaint, and to do justice to the parties, &c. I am not aware that any proceedings have ever been had under this section of the statute, or that a construction has been given to it in any of our courts. But there appears to be nothing in its provisions inconsistent with the principle assumed by Chancellor Kent, and insisted on by the complainant in this case. It frequently happens that judgments and mortgages are liens upon the lands of several persons where there is equality of equity, and where contribution would be just and proper; as in the case of several conveyances to different persons by the judgment debtor at the same time; or where the lands, bound by the judgment, are in the hands of the heirs at law of the debtor, or of different persons claiming under them.

Wherever the judgment creditor disposes of a part of the land held by the judgment, the purchaser has an equitable right to have the judgment discharged out of the residue of the property. Although a subsequent purchaser has an equal equity to have the land which he has purchased and *paid for discharged from the lien of the judgment, as against the debtor, the first purchaser having the prior equity must be preferred. Where the equities are equal, and neither has the legal right, the maxim qui prior est in tempore potior est injure prevails. (Covell v. The Tradesman's Bank, ante, 131.) It does not follow from what has been said, that the date of the conveyance is in all cases to determine.the question as to the priority of equity between different purchasers. That is prima facie the time when the equitable right accrues. But if it should turn out that a purchaser had contracted for the purchase of his land and actually paid for the same, he would be preferred in equity to a subsequent purchaser, although the conveyance to the latter might be prior in point of time.

The equitable rights as between successive purchasers being established, the next question which arises is, what are their rights as against the judgment creditor ? In several cases the principle has been recognized, that where a creditor has a right to resort to two funds for the satisfaction of his debt, the party who has a subsequent claim upon one fund, only, may compel him to exhaust the other fund before he resorts to that in relation to which such subsequent claim exists. (Evertson v. Booth, 19 John. 486; The New York and New Jersey Steamboat Ferry Company v. The Association of the Jersey Company, 1 Hopk. 460.) It is insisted by the defendant’s counsel that this can only be done by a resort to the equitable power of this court in the first instance; and I am not aware of any case where it has been held that the creditor must, at his peril, decide upon the equitable rights existing among the holders of different portions of the property on which he has a general lien for the satisfaction of his debt.

If the agent of Hubbard had left the sheriff to exercise his own discretion in deciding upon the equitable claims of the different purchasers of the land, I should have no difficulty in this case in deciding that the purchase of the complainant’s farm must stand, and that his remedy was against the other parties, to compel them to refund the purchase-money to *him, so far as they were benefited by such sale in discharging their own lands from the lien of the judgment. On the other hand, if the complainant had made all the owners of the lands, which he now insists should have been first sold, parties to this suit, I should have no difficulty in doing justice between them.

No decree can be made affecting the rights of the owners of the half acre sold to Reynolds, or the three-tenths of ten acres sold to Curtis and McConnell. All the lands were sold which Had been aliened subsequent to the Berry farm. It appears by the pleadings and proofs, that all the right and title which Tuckerman ever had to that farm ought to have been sold before either of the small pieces, or the lands of the complainant were charged. And as the heirs of Berry are parties to this suit, the complainant’s equitable claim against that farm can still be enforced. I shall, therefore, direct that the same be sold under the direction of one of the masters of this court, and that the proceeds of such sale be applied in satisfaction of the amount for which the complainant’s lands were sold; and if there is any thing remaining after satisfaction of that amount, that it be applied in payment of the complainant’s costs in this suit. But as it also appears, by the pleadings and proofs, that the title to that farm is in dispute, it must be sold at the risk of the purchaser. The complainant must also be at liberty to redeem his land from the sale to Hubbard, on paying to him the amount of the purchase-money with interest thereon, at the rate of seven per cent, per annum; deducting the $13, which, by mistake, had not been credited on the judgment.

It is stated in the proofs, although I have not been able to find any allegation of the fact in the bill or admission in the answer that the reason why the Reynolds’ lot was not sold was, that there had been some agreement with Hubbard, by which that lot was discharged from the lien of the judgment. If such was the case, the complainant had a right to have the value of the lot deducted from the amount due on the judgment before his lot was sold. If, therefore, the Berry lot shall prove insufficient to satisfy the amount charged on the complainant’s farm, with costs, as above mentioned, it must *be referred to a master to examine and report whether Hubbard had done any act by which the lien of his judgment on the Reynold’s lot had been legally or equitably discharged, previous to the sheriff’s sale; and if it had been so discharged, the master is further to report thé value of that lot at the time of the sheriff’s sale, allowing the. owner to retain the possession thereof until the expiration of the time of redemption on sheriff’s sales; and that on the coming in and confirmation of such report, the value so reported, with the interest thereof, or so much as may be necessary to satisfy the balance due to the complainants as aforesaid, be paid to him by the defendant Hubbard, or allowed towards the redemption of the complainant’s land from the sheriff’s sale.

        Clowes v. Dickinson, 9 Cow. 403; Guion v. Knapp, 6 Paige, 39; Eddy v. Trarver, 521; Gill v. Lyon, 1 John. Ch. 447.

        Halsey v. Reed, 9 Paige, 446; Ayres v. Husted, 15 Conn. 504-519. The equitable doctrine in regard to the marshaling securities, is applicable only where one party has a lien or interest in two funds, with a right to resort to either or both, and another party has a lien on or an interest in only one of those funds. The Farmers' Loan and Trust Co. v. Walworth, 1 Comst. 433.


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    Plestoro and others v. Abraham and Thompson.
    Where a British subject, being indebted, left England, and while on his voyage to this country, and before he arrived here, he was under the laws of Great Britain declared a bankrupt, and provisional assignees were appointed; it was held, that the assignment to such assignees divested the title of the bankrupt to the personal property brought with him to this country.

      October 21st.
    Arid an injunction will lie, upon the application of such assignees, to restrain a third person from delivering the goods to the bankrupt, and also to restrain the latter from receiving or prosecuting for the same.

    And the commencement of suits against the bankrupt by his creditors in the courts of common law of this state will not defeat the effect of the assignment to his assignees.
    The defendant Abraham, is a British subject, domiciliated in England. In July, 1828, he left that country for the United States, bringing with him 24 cases of paintings, cabinet furniture and merchandize, and arrived in New York about the first of September, when the goods were deposited in the public store, under the charge of the defendant Thompson, as collector of the port. Shortly after Abraham left England, a commission of bankruptcy was taken out against him there, by virtue of which he was duly declared a bankrupt; and on the 8th day of August, J. Johnson, one of the *complainants was appointed by the commissioners provisional' assignee. On the 24th of September, 1828, the complainants, the provisional assignee, and the creditors of Abraham, all of whom were British subjects and residents in England, filed their bill in this cause, and obtained an injunction restraining the collector from delivering the goods 'to Abraham, and restraining the latter from receiving or prosecuting for the same. Abraham put in his answer, neither admitting or denying the proceedings under the commission, but alleging that he left England in the lawful pursuit of his business, with a bona fide intention of returning, and denying that he was insolvent or had" committed any act of bankruptcy. ^

      D. Graham, for the defendant,
    moved for a dissolution of the injunction on the bill and answer.

      H. Bleecker, contra.

       On appeal, the Court of Errors held, that an assignee under a foreign commission of bankruptcy is not entitled before judgment to an injunction to restrain the bankrupt from receiving from the custom house here, goods which were in transit (on the high seas) at the time of suing out the commission. S. C., 3 Wen. 538.

   The Chancellor :—In the case of Holmes v. Remsen, (4 Johns. Ch. R. 460,) Chancellor Kent decided that an assignment by the commissioners of bankruptcy in England operated as a legal transfer of the personal property and dioses in action of the bankrupt in this country, even as against a subsequent attachment taken out here by an American creditor, under the act against absconding and absent debtors. It is doubtful whether that decision, to its full extent, can be sustained. It was strongly questioned and ably opposed by Platt, J., in a case between the same parties, which subsequently came before the Supreme Court. (20 John. Rep. 229.) It also stands in opposition to the opinions of the state courts in Connecticut, Massachusetts, Pennsylvania, Maryland, and in both of the Carolinas, (Kirby’s Rep. 313; 9 Mass. Rep. 350; 13 Mass. Rep. 146; 6 Binney, 353; 1 Harris & M’Henry, 236; 2 Haywood, 24; 1 Const. Rep. 283;) and to the decision of the Supreme Court of the United States in Harrison v. Sterry, (5 Cranch, 289,) and in Ogden v. Sanders, (12 Wheaton, 213.)

But the case before me steers clear of all these decisions. In the cases cited, the contest was between foreign assignees *and domestic creditors claiming under the laws of the country where the property was situated, and where the suits were brought. The question in those cases was, whether the personal property of the debtor was to be considered as having locality, for the purpose of giving a remedy to the creditors residing in the country where the property was in fact situated at the time of the foreign assignment. In this case, the controversy is between the bankrupt and his assignee and creditors, all residing in the country under whose laws the assignment was made. Even the property itself, at the time of the assignment, was constructively within the jurisdiction of that country, being on the high seas, in the actual possession of a British subject. Under such circumstances, the assignment had the effect to change the property and divest the title of the bankrupt, as effectually as if the same had been sold in England under an execution against him, or he had voluntarily conveyed the same to the assignee for the benefit of his creditors. If no act of bankruptcy has been committed, he must apply to the proper tribunal of his own country to supersede the commission; for while it remains in force the adjudication of the commissioners is conclusive against him as to that fact.

It probably was not necessary for the creditors to join with the assignee in this suit; but that affords no ground for the dissolution of the injunction.

By the sixty-ninth section of the English bankrupt act, (Statute 6, Geo. 4, ch. 16, sec. 69,) proving a debt under the commission by a creditor, is declared to be an election by him not to proceed against the bankrupt by action. Although the creditors in this case have prosecuted the bankrupt in the Superior Court of the city of New York, they will still be entitled, on relinquishing these suits, to prove their debts under the commission. If they elect to proceed under the commission, perhaps that court may consider it a sufficient ground to order a stay of proceedings in those suits, and to discharge the defendants without bail. But the institution of these suits by the creditors cannot prevent the legal effect of the assignment in changing the property in the goods and *vesting them in the assignee for the benefit of the creditors generally.

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


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    Stafford v. Bryan.
    October 21st.
    The statute of limitations is a good plea in bar in equity as well as at law.

    Where the answer of the defendant is responsive to the bill, it is evidence in his favor, and is conclusive, unless disproved by more than one witness.
    The complainant filed his bill in this cause on the 21st of December, 1826, setting forth, that in August, 1813, the complainant and his partners, John Stafford and George B. Spencer, who are since dead, together with the defendant, being desirous to raise money, the firm of Staffords & Spencer made a note to Bryan for $11,000, which was indorsed by him and discounted at the Albany Bank, as an accommodation note of Staffords & Spencer. Bryan received $3,000 of the proceeds, and was to pay a share of the note and discounts on each renewal, in proportion to the amount of the proceeds of the note which had been received by him. The note was renewed from time to time, and he continued to pay his share until the 14th of June, 1814, when he gave his note to Staffords & Spencer for $821 24, payable on demand, with interest, for the balance of his proportion of the $11,000, and they assumed the payment thereof to the bank. G. B. Spencer died in February, 1818, and J. Stafford in October, 1820. In the winter or spring of 1825 the note was lost, and the complainant charged that it afterwards came into the hands of the defendant. The complainant also alleged in his bill, that the defendant frequently during the life of his partners, and since their death, acknowledged that the note was still due, and promised to pay the same; setting out, also, particular times and places when and where the defendant had admitted his indebtedness and promised payment.
    The defendant in his answer admitted the giving of the note under the circumstances stated in the bill, but denied *all knowledge of its loss, or that he had seen the same since the alleged loss, or knew what had become of it. He also alleged that he verily believed he had long since paid the note, but how or in what manner, he was unable to state; and he insisted upon the statute of limitation as a bar to this suit. He also denied having at any time within six years previous to the commencement of this suit admitted his indebtedness, or promised to pay the note; denying specifically the several admissions and promises stated in the complainant’s bill. He also denied that he had within the same period been called on by the complainant for payment, except that two suits had been commenced against him in the Supreme Court for the recovery of the note, one of which was discontinued, and in the other the complainant was non-suited at the trial, on the plea of the statute of limitations.
    The cause was heard on pleadings and proofs.

      J. Lansing, for the complainant:
    The statute of limitations does not begin to run against a note payable on demand, until an actual demand is made. The defendant has admitted his indebtedness within six years, before the filing of the bill. Presumption of payment is repelled by the fact that the defendant was not in a situation to pay. (Fladong v. Winter, 19 Ves. 198.) The acknowledgment in the answer of the defendant is sufficient to take the case out of the statute. The defendant admits he gave the note, but says he believes it has been paid. This admission will revive the debt, if it be proved that the note has not been paid. (10 John. R. 35; 13 John. R. 510.)

      S. Dutcher, for the defendant:
    An acknowledgment of the original debt does not take a case out of the statute of limitations. The acknowledgment must go to the fact that the debt is still due. An acknowledgment, to take a case out of the statute, must be consistent with a promise to pay. The counsel cited Clementson v. Williams, (8 Cranch’s R. 72;) Smith v. Freel, (Addison’s K. 291;) Danforth v. Culver, (11 John. R. 146;) 3 John. Ch. R. 196; Kane v. Bloodgood, (7 John. Ch. R. 113;) Swan v. Lovell, (2 Barn. & Ald. 759;) Hellings v. Shaw, (7 Taunt. R. 611, 608;) Beale v. *Nind, (4 Barn. & Ald. 572;) Portington v. Butcher, (6 Esp. R. 68;) Brandram v. Wharton, (1 Barn. & Ald. 463;) Bell v. Roseland, (Hardress’ R. 301;) Wetzell v. Bussard, 11 Wheat. R. 309 and note;) Sands v. Gelston, (15 John. R. 511;) Murray v. Coster, (4 Cowen’s R. 617;) Rosevelt v. Mark, (6 John. Ch. R. 266;) Battley v. Faulkener, (3 Barn. & Ald. 288;) Danforth v. Culver, (11 John. R. 146;) Lawrence v. Hopkins, (13 John. R. 288;) Green v. Rivet, (2 Salk. R. 422;) Coltman v. Marsh, (3 Taunt. R. 380;) Lacon v. Briggs, (3 Atk. R. 105;) Richards v. Maryland Ins. Co., (8 Cranch, 93;) Hovenden v. Lord Annesly, (2 Scho. & Lef. 629.)

       See Ward v. Van Bokkelen, ante, 101-2.

   The Chancellor :—It is unnecessary in this case to express any opinion as to the probability of the note’s being paid. The existence of the note being once established, and its loss sufficiently proved, the complainant must recover, unless the defendant can establish the fact of payment, or the recovery is barred by the lapse of time. By a reference to the cash book of the complainant, (exhibit Y,) it appears that in June, 1814, the defendant is charged with §2,110 41, cash, and credited by discounted note $987 17, cash on check $300, and by note on demand in full, $821 24, which last is probably the note in controversy in this cause. It appears, also, from the same book, that there were large cash dealings between the parties for one or two years afterwards, amounting to more than $8,000 on each side. But if the note in question was included in any of the settlements which took place between the parties, no reason is given why it was not delivered up. On the contrary, it appears by the testimony of Lewis Benedict that a note precisely answering the description of the note in the complainant’s bill, except that it was not upon interest, was in the store of Staffords, Spencer & Co., ' among the papers belonging to the former firm of Staffords & Spencer, until and after the month of March, 1819, at which time he presented it to the defendant, who promised to give his note for the same, payable on the 1st of September thereafter.

*The only question, therefore, in this cause is, whether the recovery is barred by the statute of limitations. This suit was not commenced until nearly eight years after the acknowledgment and promise to Benedict; and although the complainant commenced two suits in the Supreme Court in the meantime, one of which was discontinued, and in the other he was nonsuited because he could not then prove sufficient to take the case out of the statute, neither of those suits can avail him any thing here.

The defendant is called upon by the complainant to answer, whether he has not admitted his indebtedness, or promised to pay this demand within six years previous to the commencement of this suit. In his answer, the defendant explicitly denies both; and the answer being responsive to the bill, is evidence in his favor, and must be considered conclusive, unless disproved by more than one witness. If, therefore, the testimony of the complainant’s sons can be reconciled with the truth of this answer, it puts the question at rest. Joab Stafford testifies to a conversation with the defendant at his store, where he went to buy fur caps, in which the defendant admitted he owed his father a good deal of money, and wanted him to trade it out in furs, &c.

In opposition to this, the defendant’s son testifies that the fur caps were purchased of him when his father was not present, and he produces the original entries in the books, to show the articles were charged directly to Joab Stafford, and not to his father. The same is substantially the case as to a similar conversation testified to by Spencer Stafford, junior. It also appears that at the times testified to by these witnesses, there was an outstanding account against the defendant in favor of the complainant. Under these circumstances, if the complainant’s sons are correct, and the defendant’s sons incorrect, as to the facts, their testimony is not inconsistent with the truth of the defendant’s answer, as these conversations may have related to the unsettled account. Without going into a detail of all the contradictory testimony on this subject, it may be sufficient to state that although great exertions were made to obtain testimony to take the case out of the statute, no such testimony was given on the trial at law. *There is not, therefore, sufficient in this case to satisfy me that the defendant has, within six years before the commencement of this suit, admitted that he owed or promised to pay the note in question; and the admission in his answer of the giving the note, accompanied with the declaration of his belief that it had been paid, is certainly not sufficient to take the case out of the statute of limitations. (Clementson v. Williams, 8 Cranch, 72.)

The complainant’s bill must therefore be dismissed with costs.


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    Jenkins and another v. Jenkins and others.
    Where there has been negligence or improper conduct on the part of a trustee, and the fund is in danger, the appointment of a receiver upon the application of the cestui que trust is a matter of right.
    In this case, J. Sudan, on behalf of the complainants, who were heirs and legatees, moved for the appointment of a receiver upon the ground of the insolvency of the executors of the estate, and of their misapplication of the property in their hands belonging to such estate.

      J. King and H. Bleecker, contra,
    contended that the office of executor was a personal trust, and unless the fund was in great danger, as in case of the insolvency or insanity of the executors, a receiver would not be appointed. (The Orphan Asylum Society of the city of New York v. McCartee and others, 1 Hop. R. 435; 12 Ves. 4; 14 Ves. 216, 266.)
   The Chancellor :—The appointment of a receiver rests in the discretion of the court in all cases where executors have become bankrupt, or wasted, or misapplied the assets, or where any part thereof has been lost through their misconduct or negligence. Taylor v. Allen, 2 Atk. 213; Andrews v. Powys, 2 Bro. P. C. 476. Anonymous, 12 Ves. 4; *13 Ves. 266.) And if the fund is in danger, it is a matter of right' to have a receiver, whenever there has been any negligence or improper conduct on the part of the trustee. In this case there has been great and unnecessary delay and negligence in closing the administration of this estate. From the affidavit read on the part of the defendants, some of the heirs have received and been permitted to retain large sums over and above their distributive share. Some of the executors, at least, have misapplied the funds belonging to the estate, and three out of the four are insolvent. A receiver must therefore be appointed as it respects them, if the solvent executor consents to act with such receiver ; and if he does not consent to such appointment, it must be referred to a master to appoint a receiver generally. And the executors must deliver over to such receiver on oath, under the direction of a master, all books, vouchers, securities and title deeds belonging to the estate in their custody, or under their control, and all property and moneys in their hands belonging to the estate.

       As a general rule, an order for a receiver will not be granted, exporte, except under urgent circumstances. See Sandford v. Sinclair, 8 Paige, 373; Gibson v. Martin, 8 id. 481.

       See Hill on Trustees, 212; Havers v. Havers, Barn. 23; Bainbriggs v. Blair, 10 Law Journ. (N. S. Chanc.) 193; Calhoun v. King, 5 Ala. 523; Beverly v. Brooke, 4 Gratt. 208.


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    Pierce v. Nichols.
    October 21st.
    Where there is a contract for the purchase of land, and the person contracting to sell declines executing the contract, upon the ground that he is unable to give a good title, and the purchaser files his bill to compel the defendant to complete the contract, or to rescind it; if the defendant is able to give a good title at the time of the decree, the complainant will be compelled to accept it.
    But the defendant will be decreed to pay to the complainant interest upon the purchase-money paid by him for the land, from the time a conveyance was demanded by the complainant.
    In May, 1822, the defendant bought of the plaintiff a bond and mortgage, for which he paid a part in money, and for the residue amounting to $1,750, he agreed to convey to him 584 acres of land in North Carolina, to be located in contiguous lots as soon as the survey,, which it was alleged was then making, should be completed. After the survey, the complainant’s agent selected the lots, which location was ^assented to by the defendant; but he declined conveying the same, as he could not give a good title on account of an outstanding mortgage on the premises, proceedings to foreclose which were then pending. But he promised to procure a good title as soon as the foreclosure was completed. He was called upon from time to time for the conveyance by the agent, and by the attorney for the complainant, until the latter part of 1826, when this bill was filed, alleging fraudulent misrepresentations and concealment on the part of Nichols, and a breach of his contract to convey;' and praying that he might be compelled to re-assign the bond and mortgage, or aacount to the complainant for the $1,750 and interest, or for such other relief as his case entitled him to.
    In April, 1827, the defendant put in his answer, denying all fraud, or fraudulent misrepresentations, or concealment, and insisting that he had a good title to the lands, and that the same was redeemed and discharged from the mortgage, and offering to convey the same according to the contract; alleging that he had been always ready and willing to convey, and had offered to the agent and attorney of the complainant to convey. The cause was brought to hearing on pleadings and proofs.

      J. & L. Hoyt, for complainant,
    cited 1 John. Ch. R. 150; 2 Equity Cas. Ab. 5; Cooper’s Rep. 308; 1 Mad. Ch. Pr. 262.

      P. Ruggles, for defendant.
   The Chancellor :—All fraud in the making of the original contract is denied in the answer, and there is no proof to support this allegation in the bill. The complainant has therefore no right to claim a re-assignment of the bond and mortgage, or the repayment of the purchase-money on that ground. If he seeks a repayment on the ground of a breach of the contract, his remedy is in a court of law. From the testimony taken in this case it is satisfactorily established, that the defendant either could not or would not, give a good title to the complainant, at the several times when the same *was demanded by Dwight and Hoyt, the agent and attorney of the complainant. But in this court it is sufficient if the party is able to make a good title at the time of the decree. (Seymour v. De Lancey, 3 Cowen, 445.)

The complainant had a right to file his bill to compel the defendant to-complete his contract, or to have it rescinded and to have the purchase-money restored. By his answer, the defendant consents and offers to execute the contract; and although he was not then in a situation to give a good title, yet, from the subsequent release from Deponceau, and the deed from Brunson and wife, which were exhibited on the hearing, it is probable that he can now give a good title to the lands selected and agreed upon between him and the agent of the complainant in 1824. The complainant is not bound, however, to take that title until it has been examined and passed upon by a master. If the defendant can give a good title, the complainant must now accept of it, together with an equitable compensation for the delay; and if the defendant cannot give such title, he must refund the consideration money and interest.

It must therefore be referred to a master to examine and report whether the defendant can give a good title to the lands mentioned in the complainant’s bill, as the same were selected and located by the agent of the complainant, and more particularly described in exhibit B, annexed to the deposition of Henry Dwight, and in the deeds from Arthur Brunson and wife to Perkins Nichols, and from Perkins Nichols to the complainant, read on the hearing of this cause. And on the coming in and confirmation of the master’s report, if it shall appear that the defendant cannot give a good title, he must pay to the complainant the $1,750 and interest thereon from the date of the original contract. But if it appears he can give a good title, he is to convey the premises by a good and sufficient conveyance, to be approved of by a master, if the parties cannot agree respecting the same; and also pay to the complainant the interest on the purchase-money from the time the conveyance was demanded on the 15th of April, 1824, until the time of the execution of such conveyance; and in either case, that he pay to the complainant the costs of this suit, to be taxed.


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    *Peck v. Hamlin and others.
    Where a defendant is examined by the complainant, in relation to the amount due the complainant, on account of certain property sold by the defendant on commission, it is not sufficient for the defendant to refer to his books of account, produced before the master; but he must give the best answer he can from recollection and information, aided by a recurrence to the books and papers, immediately within his control and possession, accompanied by such explanations, responsive to the questions put, as are necessary to prevent improper conclusions being drawn from his answers.
    Nov. 10th.
    This case came up on exceptions to the master’s certificate of the sufficiency of the examination of the defendants in the master’s office. The object of the examination by the complainant was to ascertain the amount due on account of the proceeds of glass received by the defendants, to be sold on commission. By the interrogatories, the defendants were required to answer, whether the several sums of money mentioned in a schedule annexed, were received by them at or about the times therein mentioned, for glass sold on account of the complainant. Some other interrogatories were also put to the defendants, the sufficiency of their answers, to which depended upon the same principle. They answered in substance, that they recollected some of the sales, particularizing them; but that as to the others, they did not recollect of the sales being made, or the moneys being received, &c., nor were they informed thereof; but that all sums of money or proceeds received on account of the sales of the glass, according to their best recollection, and as they believed, were mentioned, and entries thereof contained in their books of account, or some of them, which they had already produced before the master; and thatsuch entries contained the dates and sums precisely, and the number of the boxes sold; that they have, at different times, seen the entries in the said books, but they do not recollect, and are not informed of the particular contents of any such entries.

      M. Dyckman, for complainant.

      C. F. Grim and A. S. Garr, forthe defendants,
    relied upon the case of White v. Williams, (8 Ves. 193.)
   *The Chancellor :—The struggle between the parties in this case appears to be, whether the complainant shall be compelled to produce the defendant’s books in evidence, in which case all the entries therein will be taken together, or whether the defendants shall be compelled to look into the books, and then answer as to the particulars referred to in the interrogatories.

The case of White v. Williams, (8 Ves. 193,) is relied upon by the defendant’s counsel to sustain the answers; but I think that case does not settle the principle contended for here. There is, indeed, in that case, an intimation, that if the defendants should answer that they have laid the accounts in the master’s office, and that those accounts enable the plaintiff to learn as much as they themselves know of them, it might be sufficient; but Lord Eldon, even as to that expressly declines to give any decided opinion.

In this case, the defendants are not interrogated as to the sales of the glass generally, or as to the amount of such sales. They are called upon to answer specifically as to the items of charge contained in the schedule annexed to the interrogatories. To these inquiries, the defendants are bound to give the best answers they can from their recollection and information, aided by a reference to the books and papers immediately within their control and possession, with such explanations fairly responsive to the questions put, and which are necessary to exclude any improper conclusion to be drawn from those answers, as they may be advised to make. If, on an examination of their books, they are unable to answer these questions, or to recollect anything about it, except from the fact that there is an entry in the books respecting the same, they may then annex a copy of the entries to their answer, or refer to the books in the master’s office, specifying particularly the books and pages, or other references by which the information may be obtained by the complainant, and showing that the entries are so made therein that they will be as intelligible to other persons as to themselves, and showing that they have no other knowledge on the subject. (Purcell v. McNamara, 12 Ves. 173.)

I think the exceptions to the sufficiency of the examination are well taken, and they must be allowed. But as exceptions are *not to be encouraged, where the master is satisfied with the sufficiency of the examination, the complainant’s costs on these exceptions must abide the event of the suit.