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    Mitchell vs. Bunch.
    Whether the court of chancery has power to direct the application of real property, situated without the jurisdiction of the court, in payment of a judgment recovered in one of the courts of this state ? Quiere.
    The court, however, has jurisdiction to compel a debtor, who has been discharged from imprisonment for debt, to discover his property, in order that it may be applied in satisfaction of his debts.
    But, in England, where the creditor can, by an incarceration of the debtor, compel him to apply his property in payment of his debts, the court of chancery will not interfere..
    If the person of the defendant is within its jurisdiction, the court has jurisdiction as to his property situated without such jurisdiction.
    And that jurisdiction is exercised by compelling the defendant, either to bring the property in dispute within the jurisdiction of the court, or to execute such a conveyance or assignment thereof, as will be sufficient to vest in the grantee or, assignee the legal title, as well as the possession of the property, according to the laws of the place where the same is situated.
    The Court of chancery has jurisdiction to enforce the performance of contracts made in a foreign country; not only where the party proceeded against is domiciled here, but also where he is a foreigner, if he be within the jurisdiction of the court at the time of the service of process upon him,
    A writ of ne exeat, although originally a prerogative writ, is now resorted to merely for the purpose of obtaining equitable bail.
    Whenever the defendant intends leaving the state, the complainant, upon producing evidence of such intention, and of his equitable claims against the defendant, has a right to this equitable bail.
    It is a matter of course to discharge a ne exeat, upon the party’s giving security to answer the complainant’s bill, where a discovery is necessary, and to abide such order and decree as may be made in the cause, and to render himself amenable to the process of the court which may be issued to enforce its performance.
    As a general rule, a ne exeat is allowed only upon an equitable demand.
    But in case of a bill filed for an account, it may be granted, although the defendant might have been arrested at law, this being a case where the courts of chancery and law have a concurrent jurisdiction.
    A ne exeat may be granted in a suit between foreigners, and in respect to demands arising abroad.
    The mere pendency of a suit in a foreign court, or in a court of the United States, cannot be pleaded in abatement, or in bar to a suit for the same cause, in a state court.

      But where a judgment debtor has been sued upon the judgment, in the circuit court of the United States, sitting within the state, and held to bail in such suit, and a bill has also been filed against him in the court of chancery, to obtain payment of the same judgment, and a ne exeat issued thereon against him, the ne exeat will be discharged, unless the complainant elects to release the defendant from his arrest and bail in the circuit court of the United States.
    October 4th.
    This was an application to discharge a ne exeat. The complainant is a resident at the Havanna; and the defendant resides at Carthagena, and is a citizen of the Colombian government. In April, 1821, the defendant being in New-York, obtained his discharge under the act for the relief of debtors, with respect to the imprisonment of their persons. He was afterwards sued in the supreme court, by the present complainant, and plead that discharge in bar of execution against his person. In January, 1822, judgment was rendered against the defendant in that suit for $42,381 ; exempting, however his body from imprisonment thereon, according to the provisions of the statute. The complainant caused an execution to be issued on his judgment, and the same was returned by the sheriff unsatisfied, for want of any visible property of the defendant whereon to levy. In August, 1831, the bill in this cause was filed alleging, among other things, that for several years past the defendant had been engaged in mercantile business at Carthagena, and had sufficient property, either there or elsewhere, to satisfy the whole amount of the complainant’s judgment; that a war existed between Spain and Colombia, so that the complainant, who was domiciled within a Spanish territory, could not prosecute in the courts of Colombia, to recover the amount of his judgment; that the defendant was able, by means of bills drawn on his house in Carthagena or otherwise, to raise the money and pay the complainant, but that he refused to do so; and that the defendant was temporarily within this state, biff was about to leave the same for Carthagena. The bill, therefore, prayed a discovery, and for satisfaction of the judgment, out of the-property, choses in action, and equitable interests of the defendant, and for general relief. The complainant, by his bill,, also prayed for a writ of ne exeat república, to restrain the defendant from leaving the state until such discovery and relief could be obtained. A ne exeat was accordingly allowed by the injunction master, and was marked for bail in the sum of $80,000. An affidavit of the defendant was read on this application, showing that the complainant had also caused him to be arrested in the circuit court of the United States, and to be holden to bail there, in an action of debt on the same judgment ; and which suit was still pending.
    D. B. Ogden, for the defendant.
    The parties to this suit are foreigners, and the debt, for the recovery of which the bill in this cause was filed, was contracted in a foreign country. And the defendant has no property within the jurisdiction of the court. The bill prays that the defendant be required to bring his property within the jurisdiction of the court, and that the same be applied to the satisfaction of the complainant’s debt. A ne exeat is a harsh proceeding; it is a dreadful weapon; and may be oppressively used to gratify malice. Lord Chancellor Eldon said : “It was a most powerful instrument, and he never applied it without apprehension.” It can never be necessary except in extraordinary cases. (Hannah v. McIntire, 11 Ves. 55. Dick v. Swinton, 1 Ves. & B. 372.) Originally, in England, this was a prerogative writ, and was only issued to prevent citizens from leaving the kingdom. It never was supposed to apply to foreigners who were temporarily within the kingdom. ( Whitehead v. Murat, Bunb. Exch. R. 183,) In one case, where the debt was contracted in England, the defendant was held to bail until his answer was put in, upon the ground of contempt. In De Carriere v. De Calone, ( 4 Ves. 590,) it was held, that an application for ne exeat was to the discretion of the court; that it was a matter of great delicacy to use it against a foreigner ; and that it was granted only in case of a mere equitable demand, and never upon a mere legal demand, upon which the debtor might be held to bail at law. (Robertson v. Wilkie, Ambler’s R. 177. Pearne v. Lisle, id. 76. Anonymous, 2 Atk. 210. Jones v. Sampson, 8 Ves. 573.) In Porter v. Spencer, (2 John. Ch. R. 269, a ne exeat was granted to prevent a failure of justice, as both the defendants and his bail were about to' leave the state. In Woodward v. Schatzell et al. (3 John. Ch. R. 412,) the complainant was a citizen, and the debt a partnership debt; but the ne exeat applied for was refused by Chancellor Kent, A foreigner cannot come here and claim the benefit of an extraordinary remedy, which is in some cases afforded to our own citizens. This is not a new principle, A non-resident creditor had no right to an attachment, under the old act for relief against absconding or concealed debtors, (In the matter of Fitzgerald, 2 Caine’s R. 318.) And by the revised statutes non-resident creditors can only sue out an attachment in cases where the debt was contracted within the state. (2 R. S. 3.) In 3 Caines’ R. 318, it was held that foreigners were not entitled to an attachment under the act in relation to absconding or concealed debtors. By our statutes a difference 'was intended to be made between foreigners and citizens. The acts of congress do not give the United States courts jurisdiction of suits between two foreigners. In this case both parties are foreigners. A ca. sa. is the highest remedy known to the law. In this court it must be considered as a process to compel the debtor to produce his property# in satisfaction of his debt.' This perhaps may be done in chancery, where the defendant cannot be held to bail at law, and his property is within the jurisdiction of the court. The statute authorising creditor’s bills, was never intended to reach property out of the jurisdiction of the court. No process of the court could take such property. No_ officer could sell it. Where the debtor fraudulently sends his property out of the jurisdiction of the court, the court might compel an assignment of it, by attachment or otherwise. Here there is no allegation in the bill that the property ever was within the’ jurisdiction of the court. The defendant being a foreigner, the decree can have no effect upon his property out of the' jurisdiction of the court. An assignment made under an insolvent or bankrupt law in- the United States, would not be sustained by the courts in a foreign country against subsequent assignees. (2 Kent’s Com. 420'. Ingraham v. Geyer 13 Mass. R. 146, per Ch. J. Parker.) This principle has also-been recognized and established By the supreme court of the United States. The cases which arise under the bankrupt laws of England have no application to this case. A commission of bankruptcy is only taken out in England where the bankruptcy was committed there. Assignments under our insolvent laws are not binding in foreign countries, upon the ground that they are not voluntary assignments. The courts of Columbia would not allow the complainant to do indirectly what they will not permit to be done directly. The judgment recovered for this demand, being in a court of competent jurisdiction, is a bar to this suit. The complainant, by taking his judgment against property only, can only claim, in our courts, the future acquisitions of the defendant in the state. And in enforcing the remedies the contract, notwithstanding the judgment recovered upon it, must be construed according to the laws of Havanna. And here the complainant is proceeding in two courts against the defendant for the same demand. The court will compel him to elect to proceed either at law or in equity. Courts in one state do not hold to bail for a debt, until a suit commenced for the same demand in another state, in which the party has been also held to bail, has been discontinued.

      B. F. Butler, for the complainant.
    If this ne exeat is not sustained the complainant will be remediless. The remarks of Lord Eldon have been referred to, to show his opinion of this writ. I refer to the case of Howden v. Rogers, (1 Ves. & B. 132 ;) also to show his views in relation to it. In that case he said that “ because this was an extraordinary writ, he never allowed it without reading the affidavit upon which it was applied for.” This writ is no longer considered as extrordinary; it has come to be regarded as a part of the ordinary process of the court of chancery, adopted to enforce equitable bail and advance justice. It is nothing more than an equitable capias. The rules regulate the proceedings upon it. Gilbert v. Coit, 1 Hopk. R. 499.)
    The bill in this case is a creditor’s bill, filed under the revised statutes, which were passed in affirmance of the doc-, trine laid down in the case of Hadden v. Spader, 20 John. R. 554, and other cases. It is not necessary, in these cases, that the defendant should have property within the jurisdiction of the court; in order to give the court jurisdiction. But the bill states that the defendant has, for several years past, remitted property to this country. It does not allege that he owns any property situated without the state, and it is so framed as to compel the discovery of all his property, wherever situated; and the court is authorized to prevent its assignment, and to decree the satisfaction of the complainant’s debt out of it, whether it be situated out of the state or not, and whether it was originally liable upon execution at law or not. If the debtor is within its jurisdiction, the court can compel him to apply his property, which is without such jurisdiction, in satisfaction of his debts. Personal property follows the person. An assignment, under the insolvent and bankrupt laws, transfers the right to it, wherever it may be. The court can even compel the debtor to convey his title to lands situated out of the jurisdiction of the court, if the creditor is willing to take them in payment of his debt. In a great variety of cases, the court of chancery, where the party is before the court, has exercised jurisdiction over real estate, situated without the jurisdiction of the court. (Arglasse v. Muschamp, 1 Vern. R. 75. Earl of Kildare v. Eustace of others, 1 Eq. Cas. Ab. 134, pl. 4. Nabob of Arcott v. East India Co., 1 Ves. jun. 385. Penn v. Lord Baltimore, 1 Ves. sen. 445. Lord Cranston v. Johnston, 3 Ves. jun. 170. Massie v. Watts, 6 Cranch, 158, per Ch. J. Marshall. Dunn Wife v. McMillen, 1 Bibb’s R. 409. Telfair v. Telfair, 2 Desaussure’s Ch. R. 271. Ward v. Arredondo, Hopk. R. 213. Mitchell v. Smith, 1 Paige’s R. 287.)
    Personal property follows the person of the owner. The lex loci controls it only in the place where the owner dies. The power of the court, however, over personal property, is co-extensive with its power over the person of the owner ? and as the owner can here dispose of his personal propertys situat d out of the jurisdiction of the court, the court will compel him to do it in favour of creditors.
    This court has embraced this case by its rules, for the appointment of receivers. A receiver is invested with the debtor’s whole estate. He is authorized to dispose of the same, including any surplus which may belong to the debtor id a partnership concern. The chancellor can reach all a debt- or’s interest in a partnership ; and the interest of an absent debtor may be attached. (2 Kent’s Com. 344, 5,6.) In the case of Abraham v. Plestoro, (3 Wend. R. 538,) it was conceded that a person could dispose of his personal property, wherever the same might be situated. As between persons residing in the state, there is no doubt of the jurisdiction of the court, to make a valid decree as to property in a foreign country. In that part of the revised statutes which relates to creditors’ bills, there is no exception of the case of a nonresident defendant. It is, therefore, sufficient to show a strict compliance with the provisions of the statute. As a general principle, our courts are open to all alien friends. The remedy is always governed by the lex fori; so much so that a discharge, obtained under an insolvent act of the state or country where the contract was made, cannot be pleaded in another state or country. At all events, the parties to this suit have been before the courts of this country. A judgment has been obtained here, upon which an execution might be issued against the defendant. This has disposed of the objection, if any existed, to the par ties being entitled to all the remedies of citizens. None of the cases cited.by the defendant establish the position that the writ of ne exeat cannot be applied as to foreigners, temporarily in the country. The case cited from 3 John. Ch. R. 412, is an authority for the complainant. There, Chancellor Kent held that this writ might be used as between foreigners. In Roddam v. Hetherington, (5 Ves. R. 9,) where the defendant resided in the West Indies, the ne exeat was discharged, on the coming in of the answer, but the defendant was ordered to give security, to abide the decree. The same order was made in the case of Howden v. Rogers, (1 Ves. & Bea. 129,) where the defendant lived in Ireland. In Flack v. Holm, (1 Jac. & Walk. 406,) where a ne exeat was granted, the defendant was a foreigner. In Grant v. Grant. (3 Russ. Ch. R. 598,) a ne exeat was granted, as between foreigners, who, in their own country, would not have been liable to arrest. These authorities,, show that the fact of the contract’s having been ¿nade in a foreign country, has no influence upon the ques-■lion now under discussion. The defendant cannot rely upon his affidavit, as it is reponsive to the bill which he should have answered. In the face of the record of the judgment for this debt in our court, it cannot be said that this debt was ■contracted in reference to the laws of a foreign country.
    Ne exeats are always granted in cases of equitable demands ; and also in many cases where courts of law have concurrent jurisdiction with equity. But here this court has exclusive jurisdiction ; as all hopes of recovery depend upon the defendant’s remaining here, and making discovery of his property. If the defendant admits he has property out of the state, but none in it, the reason becomes stronger for retaining the ne exeat to enforce a transfer of such property in discharge of this debt. We have a right, at all events, to keep the defendant here until he puts in his answer; and if he has property out of the state, until the decree. Even where a debtor has been held to bail at law, to prevent a failure of justice a me exeat will be granted. But this is a case of mere equitable cognizance ; our object is to compel the defendant to discover the property he has acquired since his discharge, and to have it applied in satisfaction of the complainant’s debt. The remedy of the statute is against the future acquisition of the party, and we cannot avail ourselves of this remedy except by a discovery. And the creditor is compelled to come into chancery, in order to reach the new acquisitions of the debtor, they generally being choses in action, or property which cannot be touched at law. The case of Ashworth v. Wrigley, (1 Paige’s R. 301,) is not applicable. There no fraud was charged; we show a case of equitable fraud. Unless this ne exeat is sustained, there will be an entire failure of justice. (1 Eq. Ca. Abr. 133.) In Boehm v. Wood, (Turn. & Russ. Ch. R. 332, 343, 344,) it was held that a ne exeat would be sustained, where it clearly appears that a specific performance will be decreed. Our case is stronger than this ; we have an equitable demand, and are entitled to a decree for the same. Lord Eldon’s views as expressed in this last case, appear to have changed. He at that time could approach this writ without dread. A ne exeat is granted on a bill for an account. This case is an exception to the rule that the demand must be equitable to authorize a ne exeat. In Dunham v. Jackson, (1 Paige, 629,) ane exeat was granted. Also, in Denton v. Denton, (1 John, Ch. R. 364, 441.)
    The notice of the defendant does not authorize him to call upon us to elect in which court to proceed: It appears the proceedings at law were first instituted. Suppose we should show that these proceedings were ineffectual; would the chancellor, in that case, compel us to elect ? In Thompson v. Graham, (1 Paige, 452,) the chancellor says : “ If the complainant proceeds at law it will then be in time to compel him to elect.” The proceedings in the circuit court of the United States cannot be noticed by this court, as the courts of the United States are considered as foreign tribunals, although sitting within the state. (Walsh v. Durkin, 12 John. R. 99. Baldwin v. Hale, 17 John. R. 272.) A party cannot plead the pendency of a suit for the same cause of action in the courts of a sister state. (Bowne v. Joy, 9 John. R. 221. Lord Dillon v. Abares, 14 Ves. R. 357. 2 Mad. Ch. Pr. 315 Mitf. Pl. 204.)
   The Chancellor.

It is not necessary in this case to inquire, whether under the 39th section of the title of the revised statutes which relates particularly to this court and its proceedings, (2 R. S. 174,) real property, out of the jurisdiction of the court, can be applied in satisfaction of the complainant’s judgment. Independent of the statute, this is clearly a case in which the court has jurisdiction to compel a debt- or, whose body is exempt from execution at law, to discover his property, so that it may be applied in satisfaction of his just debts. The case made by the complainant’s bill, comes directly within the decision of Lord Hardwicke, in Edgell v. Haywood Dawe, (3 Atk. 352,) which decision I believe has never been questioned even in England; although the court of chancery there will not interfere in cases provided for by the bankrupt act, or where the plaintiff can by a real incarceration of the debtor compel him to apply all his property in payment of his honest debts. In that case, as in this, the defendant’s body could not be taken in execution; and the judgment was entered to be levied, of his property only. Whether the defendant has any part of his property vested in lands, and whether it is of that kind of property which can be reached by an execution at law, cannot be ascertained until the coming in of the answer. It will then be in time to raise the objection that this court cannot make a decree concerning real estate which is situated in a foreign country.

The original and primary jurisdiction of this court was in personam merely. The writ of assistance to deliver possession, and even the sequestration to compel the performance of a decree, are comparatively of recent origin. The jurisdiction of the court was exercised for several centuries by the simple proceeding of attachment, against the bodies of the parties, to compel obedience to its orders and decrees. Although the property of a defendant is beyond the reach of the court, so that it can neither be sequestered or taken in execution, the court does not lose its jurisdiction in relation to that property, provided the person of the defendant is within the jurisdiction. By the ordinary course of proceedings the defendant may be compelled either to bring the property in dispute, or to which the complainant claims an equitable title, within the jurisdiction of the court; or to execute such a conveyance or transfer thereof, as will be sufficient to vest the legal title, as well as the possession of the property, according to the lex loci rei sites. Thus in Penn v. Lord Baltimore, (1 Ves. sen. 444,) Lord Hardwicke decreed the specifice performance of a contract relative to the boundary between the colonies of Pennsylvania and Maryland. So in Archer v. Preston, cited by Lord Nottingham, and by Lord Keeper Guilford, in the case of The Earl of Arglasse v. Muschamp, (1 Vern. R. 77, 135,) the court decreed the specific performance of a contract respecting lands in Ireland ; the defendant being temporarily within the jurisdiction of the court. In Farley v. Shippen, (Wythe’s R. 135,) the court of chancery of Virginia decided that it had jurisdiction to decree a conveyance of lands lying in an adjoining state. That, although it could not award a sequestration against those lands in execution of the decree, it might award an attachment against the person of the defendant for a contempt in refusing to perform the decree. (See also Toller v. Carteret, 3 Vern. R. 494; Hughes v. Hall, 5 Munf. R. 431 ; Cranstown v. Johnson, 3 Ves. 170 ; 5 id. 277, S. C; Ear of Kildare v. Eustace, 1 Vern. R. 419; Earl of Derby v. Duke of Athol, 1 Ves. sen. 203 ; Guerrant v. Fowler Harris, 1 Hen. & Munf. R. 5; Messie v. Watts, 6 Crunch, 148 ; andd Ward v. Arredondo, 1 Hopk. 213.)

Although the question, how far the courts, of our country are authorized to proceed against foreigners temporarily" within their jurisdiction, in relation to contracts made, in another country, has been frequently raised, it appears, now to be well settled, both in this state and in England, that they have jurisdiction to enforce the performance of such contracts, where the party proceeded against is within the jurisdiction1 of .the court. And it makes no difference whether the defendant is actually domiciled here, or is temporarily within" the jurisdiction at the time of the service of the process to" appear and answer the plaintiff’s demand. (Sicard v. Whale, 11 John. R. 194. Peck V. Hozier & Mulock, 14 id, 346. Smith v. Spinolla, 2 id. 198. Imlay v. Ellefsen, 2 East’s R. 453.) Neither is this practice of entertaining suits against, or"' between foreigners of recent origin, or confined to the courts' of this country and of England. By referring to the Digest, it will be found that the courts of Rome not only took cognizance of suits between foreigners, but that a judge was specially authorized to discharge that duty. . The office of Praetor Peregrinus was created for the express purpose of administering justice between foreigners, or strangers, who resorted’ in great numbers to the imperial city; and perhaps also between strangers and citizens. Digest, lib. 1, tit. 2, fr. 2>- § 28.) And a similar office, and with substantially the same-powers, is said to have existed among the Athenians. (Taylor’s Civil Law, 211.) By the law of Holland, also, the-person of a foreigner may be arrested, either in securitatem debiti, or for the purpose of giving jurisdiction to a tribunal’ which is not the natural judge of the party, because he is not' domiciled within its jurisdiction. (Van Der Linden’s Inst: 430.) The meditatione fugce warrant of Scotland is also-used, as well for the purpose of securing the persons of strangers, temporarily, within the country, as to obtain security from those who intend to leave Scotland for the purpose of eluding the process of the court. (1 Bell’s Dict. tit. Arrestment. 2 id. tit. Meditatio, fugae. Ersk. Princ. 17.) By the French code, foreigners, not resident in France, may be cited before the tribunals of that country to enforce the execution of contracts entered into with Frenchmen, either in France or elsewhere. (Code Nap. lib. I, tit. 1, ch. 1.) And they may also be arrested on commercial contracts. In most of the countries, however, where the civil law prevails, it does not appear to be fully settled whether their courts can arrest a foreigner, who is only temporarily within the jurisdiction, at the suit of another foreigner, who is also a nonresident on a commercial contract made abroad. (See Janet v. Maidmont, and Scott v. Carmichael, 2 Bell’s Com. 564.)

In this court the writ of ne exeat is simply a means of obtaining equitable bail; and however liable it may be to abuse, when used politically as it formerly was in England, it is as harmless here as the ordinary process of the courts of common law, usually denominated bailable writs. Although in form it prohibits the defendant from going out of the jurisdiction of the court, yet it is a matter of course to discharge the writ, upon the party’s giving security to answer the complainant’s bill, where a discovery is necessary, and to abide such order and decree as may be made in the cause, and to render himself amenable to the process of the court, which may be issued to enforce the performance of the decree. Woodward v. Schatzell, 3 John. Ch. R. 412. Gibert v. Colt, 1 Hopk. R. 496. Russell v. Asby, 5 Ves. 96. Atkinson v. Leonard, 3 Bro. C. C. 218. Chitty on Prerog. 23.) If this court has jurisdiction of the cause, and the defendant intends to leave the state, so that the decree against him would necessarily prove ineffectual, the complainant has a right to this equitable bail, on producing proper evidence of that fact and of the actual existence of the equitable claim for which the suit is instituted.

In the English court of exchequer this writ is not used ; but an order for security, in the nature of a ne exeat or of equitable bail, is obtained upon motion. (1 Fowler’s Exc, Prac. 36, 203.) The form of the order in that court appears to be, that the defendant, within one week after service of the order, enter into a recognizance with proper sureties, not to depart the kingdom without putting in his answer and performing such decree or order as the court may thereafter make in the suit. (Attorney General v. Mucklow, 1 Price’s R. 289. Davis v. Heron, in 1753. id. 291, note.) In a cause before that court in 1724, such an order was made against a defendant, who resided at Oporto ; although, in another case against the same defendant, who had answered, and, I presume, had denied the equity of the complainant’s bill, the court refused the order. (Whitehead v. Murat, Bunb. R. 183.) The court of exchequer, in Ireland, have adopted the formal process of a ne exeat to obtain equiable bail. It issues under the exchequer seal, and is granted as a matter of course, when properly applied for, according to the 80th general rule of that court. ( Howard’s Eq. Side, 651, 2.)

As a general rule, this process is only issued for an equitable demand, and cannot be allowed on a mere legal claim. But, where there is a concurrent jurisdiction between the court of chancery and courts of common law, as in the case of bills for an account, it may be granted, although the defendant could have been arrested by process issued out of a court of law. (1 P. Wms. 263, n 1. Russell v. Asby, 5 Ves. 96. Jones v. Sampson, 8 id. 593. Jones v. Alephsin, 16 id. 470.)

In Baker v. Dumaresque, (2 Atk. 66,) Lord Hardwicke restrained a defendant from going out of the kingdom to the place of his abode, until he should give security to abide the decree. In Archer v. Preston, before cited, a ne exeat was granted against a defendant temporarily in England ; and in Atkinson v. Leonard, the writ was granted in favor of an inhabitant of Antigua, against a resident of the same place, who merely came to England with his wife for medical advice. In Howden v. Rogers, (1 Ves. & Beam. 129,) it was allowed against a defendant domiciled in Ireland ; and who only came to England, temporarily, on business. In the case of Flack v. Holm &f Ludert, (1 Jac. & Walk. 406, Lord Eldon granted a ne exeat against a Russian, who resided at St. Petersburgh, and for a debt contracted at that place as a commission merchant. And in the recent case of Grant v. Grant, (3 Russ. R. 598,) the writ was allowed against a resident of Jamaica, in respect of a debt contracted there, between persons who were resident at that place; although, by the laws of Jamaica, the defendant could not have been arrested for such debt.

In the case of De Carrier v. The Abbe De Callonne, (4 Ves. 578,) Lord Eldon discharged a ne exeat, granted by the master of the rolls, in favor of one French emigrant against another. But it was evidently on the ground that the debt was not due, according to the agreement and understanding of the parties, at the time the writ was allowed. In this court, in Woodward v. Schatzell, (3 John. Ch. R. 412,) Chancellor Kent, after a full examination of the cases, decided that the writ may be granted in the case of foreigners, and in respect to demands arising abroad. Chancellor Sanford came to the same conclusion in Gibert v. Colt, (1 Hopk. R. 496,) and granted a ne exeat against a citizen of Maryland, who was temporarily in this state.

If the complainant is entitled to this writ against a foreigner who is merely here for a temporary purpose, this appears to be a proper case to retain the process against the defendant. It is not denied that the complainant has a just and equitable demand against him, to the extent of nearly $80,000, including interest; and that the defendant has the means of paying the whole amount. But his property is in such a situation that the complainant cannot reach it, except by the aid of this court, and by detaining the defendant within its jurisdiction, to abide such order or decree as may be found necessary to compel him to apply his property in satisfaction of the complainant’s claim. In the language of Senator Allen, in Pettit v. Candler, (3 Wend. R. 625 ;) “What can be more reasonable than that every man possessing the means should pay his honest debts; and if he possess the means, and place them in a situation beyond the reach of legal process, is there any injustice in compelling him to render an account of the property thus fraudulently concealed Although the principal part of the defendant’s property is vested in a partnership with others, that does not discharge him from the moral obligation of applying it in satisfaction of the complainant’s debt, after all just claims of his copartners and the creditors of the firm have been provided for. This court will not require of him an impossibility. But so far as he can control his interest in the partnership funds, consistently with the laws of the country in which those funds are now placed, and without prejudice to the rights of others, he may be required to apply his interest in that species of property in satisfaction of the complainant’s debt.

The mere pendency of a suit in a foreign court, or in a court of the United States, cannot be pleaded in abatement, or in bar to a proceeding in a state court. If the complainant had proceeded to judgment there, it would indeed present a different question ; as the original judgment in the supreme court of this state, which forms the foundation of the complainant’s bill, would be merged in such new judgment. In Maule v. Murray, (7 T. R. 470,) the court of king’s bench refused to discharge a defendant, who had already been arrested and held to bail, in this state, for the same demand, And in Imlay v. Ellefsen, (2 East, 453,) the same court refused to discharge a defendant, who had already been hold-en to bail, for the same cause of action, in a suit in Norway. But, I apprehend, the principles of these decisions can hardly be extended to the circuit court of the United States, sitting within the limits of our own state. This court will judicially notice the- fact, that the arrest of the body of the defendant on mesne process in that court, is for the purpose of compelling him to pay the debt or to render himself in execution in satisfaction thereof; and that the proceeding in that court, in an action of debt on the judgment by which it will be finally merged in the new judgment to be obtained there, is wholly inconsistent with the proceeding by bill in this court to aid execution of the judgment of the supreme court.

It certainly cannot be necessary for the protection of this complainant’s rights, that the defendant should be compelled to give security in two different suits pending at the same time, in different courts, and for the recovery of the same •debt. The ne exeat must therefore be discharged, unless :the complainant, within ten days after notice of this or•der, consents to release the defendant from his arrest in the •circuit court, upon his entering an appearance or filing common bail in that suit. It is not necessary at this time to decide, whether this is a case in which the complainant may be compelled to elect in which suit to proceed ; as the notice is ■not properly framed to compel an election between this suit and that in the circuit court. But this court may excuse the defendant from giving bail in both suits, when one is sufficient for all the purposes of justice. If the complainant consents to relinquish the bail in the circuit court, the defendant may still be discharged from the ne exeat here, upon his giving the usual security to appear and answer the complainant’s bill, and to obey and abide such order and decree as may be made by this court in the premises. Such security to be approved of by the vice chancellor or injunction master of the first circuit ; on notice to the complainant, so that he may be heard in relation to the sufficiency of the sureties offered.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    W. F. Osgood vs. Ann Osgood. Ann Osgood vs. W. F. Osgood.
    ■Upon a bill filed by the husband against the wife for a divorce, upon the ground of adultery, the husband, upon the application of the wife, will be ordered to pay her a gross sum to defray the expenses of her defence, and also a reasonable sum for alimony during the pendency of the litigation, although affidavits are presented on the part of the husband, showing the guilt of the wife.
    -But the application of the wife for an allowance, to enable her to make her defence, and for alimony, will not be granted, unless she denies, in her petition, on oath, the truth of the charge of adultery, or shows therein some ■valid defence to the husband’s suit.
    October 18th.
    These were cross suits, brought by the husband and wife ¡against each other, both claiming a dissolution of the marriage, on the ground of adultery. In the first suit, the wife put in an answer, without oath, denying the adultery charged against her in the bill, and making recriminatory allegations <of adultery against her husband. She thereupon presented petitions, in both suits, to the vice chancellor of the first circuit before whom the suits were pending, stating therein, among other things, that she was left by her husband destitute of any means of support ; also alleging her belief that the husband was worth from twenty to thirty thousand dollars ; and praying for an allowance from him to defray the expense of prosecuting and defending the suits, and for her support in the mean time. In answer to this application, the husband put in his affidavit, denying the charges of adultery made on the part of the wife, and alleging his own insolvency. He also produced affidavits of a great number of persons, to prove the charge of adultery against the wife, and other misconduct on her part, and to show that she sustained the reputation of a common prostitute. The vice chancellor made an order, directing the husband to pay $100 to the wife, or her solicitor, to enable her to defend and prosecute the suits ; and referring it to a master, to examine and report what alimony, if any, should be allowed and paid to her during the pendency of the suits. From this order, the husband appealed to the chancellor.

      H. S. Mackay, for the appellant.

      J. Radcliffe, for the respondent.
   The Chancellor.

The affidavits produced on the part of the husband, before the vice chancellor, presented a strong case against the wife ; and if those affidavits are true, she h¡as no claim or pretence to be furnished with money, from the husband’s daily earnings, to carry on this litigation. But in the case of L. Wood v. C. Wood, (Ante, 108,) this court held that the question as to the wife’s guilt, could not be decided upon conflicting affidavits, on an application like the present. The case of Perkins v. Perkins, decided in September, 1828, was disposed of on a different principle. It is true that in that case affidavits were produced on the part of the complainant, showing that the defendant was a common prostitute, and that she kept a house of ill fame, in the city of New-York. The complainant, however, was an infant, without property, and the suit was prosecuted by his father, as his; next friend. The application, on the part of the defendant, was, that the next friend of the husband should furnish her with funds, out of his own property, to defend the suit. The court decided that the father could not be compelled to furnish her with the means of defence, and that he was not liable for alimony during the litigation. And upon the facts disclosed in that case, it appeared there were no reasonable grounds for staying the proceedings until the husband was of full age.

Upon the papers which were presented in this cause, however, there was a defect, which, if the vice chancellor’s attention had been called to it, he would undoubtedly have considered a sufficient ground for refusing the respondent’s application. The defendant, to a bill for divorce, charging her with the crime of adultery, is not bound to put in her answer on oath, as she cannot be called upon to criminate herself. But this court has frequently decided, that if she applies for an allowance- to enable her to defend the suit in such a case, she must, in her petition, deny the adultery charged in the complainant’s bill, or show that she has some other valid defence to the suit. The first petition presented in the case of Wood v. Wood, above referred to, was dismissed, because the wife had not denied, on oath, the adultery charged against her in the bill. But on a suggestion that the allegation of her innocence had been left out of the petition-through mere inadvertence on the part of her solicitor, she was permitted to renew the application. Although this court will not, on an application for an allowance to defend the suit, or for alimony, decide as to the guilt of the wife, if she denies the charge on oath, yet, if her guitlt is open and notorious, as it is alleged to be in this case, she may be indicted and punished for the perjury if she swears to a petition which she knows to be false. If the recriminatory allegations in her answer and cross bill are true they furnish a good defence, although she might not be able to swear to her own innocence. But the cross bill is filed on her allegation of belief only; and the charges therein are fully denied, not only by the appellant’s own oath, but also by the oaths of the persons with whom the offence of adultery is alleged to have been committed. If the wife, therefore, intended to rely on these recriminatory allegations only, she should have procured the affidavits of the persons who gave her the information, and who knew the facts.

The order of the vice chancellor must be reversed, and the petitions be dismissed ; but without prejudice to the right of the respondent to renew her application to the vice chancellor, upon a new petition, denying on oath the adultery charged in the bill of the appellant. If, however, as alleged by the husband, the wife has sufficient property in her hands to defray the expenses of the suit and to support herself pending the litigation, he should not be called upon personally to advance any thing more, until that property is exhausted. And an order may bemade, authorizing such a disposition of the property as will give a good title to the purchaser.

The proceedings in this case are to be remitted to the vice chancellor.


text:
    Rathbone vs. Dyckman & Whetten.
    1831. October 18th.
    Where a testator being seized of a dwelling house and farm, and of other estáte, both real and personal, gave a pecuniary legacy to his daughter, payable at 21, or on her marriage; and gave to his wife the house and farm and his furniture for life, and one third of his personal estate absolutely, and then concluded as follows: “ and after the death of my wife, in case I should have no more children, l give, devise and bequeath unto my said daughter E. L. my said dwelling house and farm, together with all the rest and residue of my personal and real estateHeld, that the wife did not take a life estate in such residue, by implication.
    Devises by implication are sustained only upon the principle of carrying into effect the intention of the testator; and unless it appears, upon an examination of the whole will, that such must have been his intention, there is no devise by implication.
    An implication may be rebutted by a contrary implication which is equally strong.
    The clear literal interpretation of, words in a will may be departed from, if they will bear another construction, where other parts of the will manifest a different intention.
    The strict grammatical sense of words in a will may be rejected, to carry into effect the intent of the testator.
    A limitation over to the mother, in case of the death of the daughter, without leaving lawful issue, is valid as to personal estate ; although, previous to the revised statutes, such a limitation as to real estate would have created an estate tail.
    Peter Cone Dyckman died in April, 1824, leaving the complainant his widow, and the defendant Eliza Letitia Cone Dyckman his only child, then an infant, under two years of age. At the time of his death, P. C. Dyckman owned a farm and dwelling house in the county of Westchester, and two houses and lots in the city of New-York. He also was possessed of personal estate to the amount of about $34,000, which was principally vested in bonds and mortgages, and stocks. A few days before his death he made a will, executed in due form of law to pass real estate, and thereby, after providing for the payment of the few debts which he owed, together with the expenses of administering his estate, the testator gave to his daughter and only child $10,000, to be paid to her by his executors on the day of her marriage, or when she arrived at the age of 21. But if she married without the consent of her mother or guardian, the legacy was not to be paid to her until she was of full age. The testator further directed, that if he should have other children, this legacy was to be reduced to $5000; and each child was to have a legacy of the same amount, to be paid to them in the same manner,-and under the like restrictions. He then gave to his wife for and during her natural life, the use and occupation of his house and farm in Westchester county, together with the use of his furniture, plate, pictures and library. He further bequeathed to his wife one third part of all bis personal estate, exclusive of the plate, furniture, pictures and library, after-payment of his debts and legacies before mentioned. The will then contained the following clause: “ And, after the death of my wife, in case I should have no more children, I give, devise and bequeath unto my said daughter Eliza Letitia, my said dwelling house and farm, together with all the rest and residue of my personal and real estate, of every nature and kind whatsoever, to her and her heirs forever.” The testator then provided for the disposition of the house and farm, furniture, &c. in case he should have other children, declaring his intention to make all the children he might have equal in the distribution of his bounty. He eiIso provided for the payment of an annuity of $150 to Mrs. Concklin ; and for the support of a black servant, during hér life. And he then directed, that in case his daughter and all his other children, if he should have any, should die without leaving lawful issue, all his estate, both real and personal, subject to the annuity, &c. should go to his wife in fee. He further directed, that if he should have other children, all the rest and residue .of his property, after pEtying his wife the one third as before ordered, should be equally divided between his children. And he made his wife, and the defendant John Whetten, her father, executrix and executor of his will. The complainant afterwards married Edward Beverly Rathbone ; and she and her husband having disagreed with their co-executor as to the management of the property, they filed their bill in this cause against such executor, and against the infant daughter of the testator, for the purpose of having the rights of the respective parties under the will settled and declared by a decree of this court.
    A receiver of the personal property, and of the rents and profits of the real estate in the city of New-York, was appointed, and the account of J. Whetten was settled on a reference-to a master. E. B. Rathbone subsequently died, and the whole interest in the subject of this suit having survived to the wife in her own right, the suit was ordered to proceed in her name as sole complainant.

      P. & S. B. Ruggles,

    for the complainant. The complainant is entitled, by the manifest intention of the testator, to an estate for life, by implication, in the rest and residue of his estate devised to his daughter, Eliza L. C. Dyckman, one of the defendants. Such intention of the testator appears from the whole will. The devising clause to the daughter admits of no other reasonable or grammatical construction. The state and situation of the parties corroborates such construction; and such construction is sup-supported by the roles of law. The testator intended to dispose of all his estate by his will. The implication, therefore, is not opposed to an estate supposed to be vested by descent in the heir at law, which will appear to be the fact in most of the English cases upon the subject, where the decision was against the implication, the court supposing that the implication ought not to be admitted, if the heir would thereby be disinherited. But here both parties claim under the will.
    It has been insisted, in behalf of the defendant, the daughter, that if it is possible that the construction in her favor is correct, the implication fails. To support which, several cases have been mentioned, and will probably still be relied on; and particularly the case of Gardner v. Shelden, (Vaugh. 259,). and the observations in 6 Cruise’s Dig. ch. 10, § 17, referring to those cases where the judges may have expressed themselves generally, that the heir at law cannot be disinherited by a devise by implication, unless the implication be necessary; but in most or all of which there are other circumstances operating against the effect of the implication, besides that of disinheriting the heir.
    In the case of Gardner v. Shelden, (Vaugh. 259,) a person having a son and two daughters, devised in these words: “ If it happens that my son B. and my two daughters die without issue of their bodies, lawfully begotten, then all my lands shall remain to my nephew D. and his heirs.” This was held to be no express devise to the children, and that they did not take an estate by implication, because then it must either be a joint estate for life, with several inheritances in tail, or several estates tail in succession, one after another; the last it could not be, because it would be uncertain who should take first, who next, &c.; and the first it could not be, because the heir at law shall not be disinherited without a necessary implication, which in this case there was not, for it was only a designation and appointment of the time when the land should come to the nephew; and therefore, the land descended to the heirs.
    This has been called a leading case upon the subject, and it restricts the implication to cases where the devise is to the heir, after the death of the person who takes by implication, though it was formerly told that a devise to a stranger, after the death of the wife, would give the wife an estate for life by implication. (Cro. Eliz. 15. Higham v. Baker, 6 Cruise, 18.1.) The case of Dashwood v. Peyton, (18 Ves.) it is presumed is cited not on account of any similarity, in point of fact, to the case under consideration, but on account of general expressions of the lord chancellor in giving his opinion. He says, page 48: “ A devise to the heir at law of the devisor, after the death of his wife, raises a necessary implication, that the wife shall take for her life, as the estate must go to some in the interval.” And in page 40, same case, the lord chancellor says : “ A devise by implication strictly arises, when the devisor meaning to part with his interest, parts expressly with a portion of it only, and the question is whether that which is not in terms given, is by the effect of the will, taken together, disposed of.” If not disposed of, it must go to the heir in the mean time.

      The difference between a legal implication which the courts recognize as sufficient and will effectuate, and a mere arbitrary conjecture of the testator’s intention, will be perceived by comparing this case from Vaughan with a case like that of Upton v. Lord Ferrers, (5 Ves. 801, 806,) in which an effort was made to infer the intention of Lord Ferrers to dispose of certain jewels, from certain loose, vague expressions contained in his will; but in which the master of the rolls decides that “ he must not say what he supposes the testator meant, but what the testator has said,” and proceeds to draw the distinction between such a. loose inference and a legal implication, like that presented by the case in Vaughan, which he terms “ the great case, which every one has in his mind.” But in the case now under consideration the complainant claims not from any mere vague supposition of what the testator meant, but from what he has said; and she insists that his language admits of no rational construction but the one for which she contends. If the daughter in this case had not been the heir at law, the cases above mentioned might have applied, and the rule which appears to be laid down by those cases, and perhaps by others which might be cited, would have prevailed, as the heir at law would have been entitled to the real estate by descent, and to the personal estate by the statute of distributions, during the life of the mother. But as the daughter, the defendant in the present case, is the heir at law, it is insisted with confidence, that the cases cited can have no application to the one under consideration ; but that the same must be decided according to the intention of the testator, to be ascertained by a reasonable and fair construction of the devising clause in the will before mentioned; and indeed the intention of the testator is to be pursued, where it appears manifest, even in opposition to the rule established by the above cases; and whenever it appears from the will that the testator intended the property should not descend to the heir at law, a fife estate may be given by implication to a third per"son, though the devise, after the death of such person, is not made to the heir at law.
    In the case of Willis v. Lucas, (1 P. Williams, 472,) a devise was made to the testator’s second son for life, he or his heirs paying out of the rents of the premises ten'pounds a year to his eldest son for life ; and after the death of his second son and his wife, then to the son or sons of the said second son ; the wife of the second son had an estate for life by implication. The case of Gardner v. Sheldon and other cases were cited to shew that there must be a necessary implication ; but Lord Chancellor Parker observed, that it had been admitted that if the devise were to the heir at law after the death of the wife, in such case she should take by implication, and that in this case it appeared to be equally the intention of the testator that his heir at law should not have the premises, and that they should not descend to him, for the will pointing that the heir at law should have a rent of ten pounds a year out of the land for his life, plainly implied he should not have the land itself.
    In the case of Roe v. Summerset, (5 Bur. 2608,) the testator devised a term of years as follows : “ I give to my daughter Mary, after the decease of my daughter Betty, my house, &c.” It was held, that Betty took an estate for life, by implication. The judges say, a strong probable implication is sufficient, it need not be a necessary implication. And Blackstone, in his Commentaries, ml. 2, 381, 2, after speaking of an estate for life by implication, created by a devise to the heir at law, after the death of the wife, says : “ Where any implications are allowed, they must be such as are necessary, or at least highly probable.” These cases shew that where the intention of the testator is satisfactorily discovered by the will, it is to be followed, whether the devise be by implication or otherwise; and that all the cases in which it is said the implication giving an estate for life must be necessary, are those in which the whole estate is not devised, but a portion is left perfectly consistent with the words of the will to descend to the heir, or where other controlling circumstances appear upon the face of the will, or exist in the property, to which it applies, by which the implication is shewn to be inconsistent with the testator’s intention. But it is insisted that no such reason exists against the implication contended for in this case.
    The intention of a testator may be manifested positively, or. deduced inferen ti ally. A strong probability of intention affords that requisite degree of certainty which the law requires in deduring the intention inferential!y; where a testator’s intention is deduced inferentially, the inference or implication need not be absolutely necessary, but necessary so far only as to effectuate the testator’s intention. Our learned opponent contends that this inference or implication must be absolutely necessary ; he claiming for the expression “ necessary implication,” a higher, and we a lower degree of certainty. The term “necessary implication” does not, and cannot denote natural necessity. No implication can be naturally necessary, for if it were, it would become positively certain, and cease to be an implication. In Coryton v. Helyear, (2 Cox’s Ch. Cas. 348,) Lord Hardwicke declares that there is hardly any case where the implication is of necessity, but that it is called necessary, because the court finds it so in order to answer the intention of the testator. Lord Eldon, in Wilkinson v. Adam, 1 Ves. & Bea. 466, criticises this phrase “ necessary implication,” and defines its exact extent. “ Although conjecture,” says he, “ must not be taken for implication, yet necessary implication means not natural necessity, but so strong a probability of intention, that an intention contrary to that imputed to the testator cannot be supposed.”
    It will be found that the familiar use of this term “ necessary implication,” is mainly to be attributed to the observations made by Chief Justice Vaughan, in the case of Gardner v. Sheldon, decided in 23 Car. 2, (1663,) and reported in Vaughan’s Rep. p. 259. In that case the testator seised of lands, says merely, “ It is my will that if my son George, and my daughters Mary and Catharine die without issue, then all my lands shall come to my nephew William and’ his heirs forever.” And upon this the question arose whether a devise should be implied to the son George, and the daughters Mary and Catharine. Chief Justice Vaughan, after stating the difficulties which would arise in asceitaining whether the testator intended a joint estate to George, Mary and Catharine for their lives, with several inheritances in tail, or several, estates tail in succession, determines that the implication sought to be established was merely possible and constructive, and was not a necessary implication. “ I call that a possible implication,” says he, “ where it may be intended that the testator intended to dispose of his lands to A., but it may also be as reasonably intended that he did not intend to devise it to A. But I call that a ■ necessary implication to A. when A. must p,ave (jie thing devised, or none else can have it.” He then proceeds to criticise the- cases from 13 Hen. 7; Br. Devise, pl. 52 ; 3 E. 6 ; Moor’s Rep. f. 7, n. 24; and he agrees that if lands are devised to the heir after the death of the wife, she takes in the mean time by necessary implication ; but if devised to a stranger after the death of the wife, she does not take in the mean time, because the implication is only possible, and not necessary; and in conclusion, he lays down the broad principle, that the heir shall never be disinherited by a devise in a will “ by implication, and not explicit, when the implication is only a possible implication, and not a necessary implication.”
    The case of Moon v. Heaseman, was decided in 1738, after-being twice argued. Lord Chief Justice Willes in that case, ( Willes’ R. 138,) closely criticises this doctrine of Chief Justice Vaughan, and analyses the term “necessary implication.” He demonstrates that Vaughan was inaccurate in laying down the rule so broadly, “ for,” says he, “ if this rule were to be taken strictly, it would overturn a great many resolutions; and I might mention a multitude of cases to this purpose.” By way of illustration, he puts the common case where a devise is implied to be a devise in fee, when made to another, he paying debts, &c. or paying a sum in gross. “ Now,” says he, “ this expression, the paying debts, makes it highly probable that the testator intended to devise in fee, yet it is very far from being a necessary implication. But if Vaughan’s rule were to hold, there would be an end of this way of reasoning, and all these cases must be overturned.” And in a private note added by Lord Chief Justice Willes, p. 144, he pronounces the rule laid down by Vaughan to be “ a new notion of his, and not the right rule.” And afterwards, in Goodright v. Goodridge, decided in 1742, (Willes, 369,) this same doctrine of necessary implication again came up before Lord Chief Justice Willes, who then, (p. 372,) spoke of Vaughan as “ going further in favor of the heir than ever any person did beforeand at p. 371, very rationally observes, that “ as eve ry tenant in fee simple has power to dispose of his estate as he pleases, and the heir has no right but xvhat is controllable by the ancestor, so the only question is, what the testator intended 1” And again, in Goodright v. Allen, 2 W. Bl. 1042, decided in 1775, Chief Justice De Grey defines “ necessary implication” to be “not a necessary implication strictly and mathematically speaking, but an implication so far necessary as it clearly arises from the reasonable construction of the will.” In the case of Roe v. Sommerset, 5 Burr. 2608, a testator possessed, of a term of 99 years, bequeathed it to Ids daughter Mary, after t.he decease of his daughter Betty. Ashurst, of counsel, contended against the implication, arguing that the implication was not necessary in case of a chattel interest, and cited the case of Horton v. Horton, from Cro. Jac. 74, which was one of the cases relied on by Vaughan, in the case of Gardner v. Sheldon. But the Juslices Willes and Blackstone both held that Betty took an estate for life in the chattel interest by implication, and decide that “a strong probable implication is sufficient; it needs not to be a necessary implication.” This case of Roe v. Sommerset ivas fully recognized and confirmed as recently as 1808, in Goodright v. Haskins, (9 East, 306.) In that case an estate was claimed by implication in a chattel interest. Dampier contended that the implication was not necessary, because the chattel interest might fall into the residue as undisposed of. East, contra, after having cited the case of Roe v. Sommerset, was stopped by the court, who say, “We are glad to find ourselves warranted by authority in putting a construction on the words of the will, which it was manifestly the intention of the testator to express.” We are gratified to add, that the general doctrine of these cases is completely supported by the recent decision of the court of errors of this state. Schauher v. Jackson, (2 Wendell, 12,) which firmly establishes the law, that express words are not necessary to prevent a descent to the heir, but that where the intention to postpone the heir is fairly inferrible from the will, the law will raise an estate by implication. It therefore appears conclusively, that when Cruise and other elementary writers broadly assert, that to raise an estate by implication, the implication must be necessary, they do not intend to prescribe any greater or higher degree of necessity than that which is afforded by strong probability of intention. The adjudged cases clearly and decisively limit the extent and meaning of the phrase “necessary implication,” and shew that when the intention of a testator is deduced by implication, strong probability is to be received as sufficient evidence of the existence of such intention.
    The testator has even with more than the requisite degree of certainty manifested his intention in favor of the complainant. What was the general intent of the testator 1 If we ascertain that, the difficulties in relation to his particular intent may be removed ; for the particular intent is to be construed in strict reference and subordination to the general intent. The general intent of the testator was to provide two dispositions of all the estate, distinct from each other ; the one founded upon the present state of his family—a wife and one daughter only; the other upon a future state of his family, as it might be altered by the birth of more children. In case of having no more children, the testator strongly evinces his general intent that his executors should retain possession of his personal property during his wife’s life, excepting the legacy to his daughter, to be paid her on her marriage, or on coming of age, and excepting the furniture, &c. ; but in case of the testator’s having more children, his intent was precisely the reverse ; for in that he intended his executors should not retain possession of his personal estate, but one third should be immediately paid over to his wife, and the residue distributed among his children ; and in that event he expressly devolves upon them the duty of paying the legacies to Mrs. Conklin. The second case did not occur. The testator’s particular intent, in case he had no more children, was that his daughter should take a legacy of $10,000, and no other part of his property during his wife’s life.
    The intention which we attribute to the testator is demonstrated by the literal language of the particular clause in question. The law regards the spirit more than the letter. The language of the testator being onty the evidence of his intention, the law, in order to ascertain the intention, will compare and examine all the language. The verbal import of any single clause or phrase will not be allowed to outweigh the evidence afforded by the whole will taken together. On the other hand, as the language of a testator affords the highest evidence of his intention, the law will neither add to, alter or diminish that evidence, except fox the purpose of establishing the general intent, when that is made evident by the language of the whole will. The courts may sometimes supply-words by construction ; that is to say, they may, from other affirmative words, actually used in the will, deduce the testator’s intention inferentially; but they cannot add words by mere conjecture, which the testator does not employ; especially, where the language so to be added will interfere with Ms general intent. This doctrine is established by the cases, and is fully inculcated by Lord Mansfield, in Chapman v. Brown, (3 Burr. 1634;) “A court of justice,” says he, “may construe a will, and from what is expressed necessarily imply an. intent, not particularly specified in words; but we cannot, from arbitrary conjecture, though founded upon the highest degree of probability, add to a will, or supply the omissions. If words are rejected or supplied by construction, it must always be in support of the manifest intent. The constant object of construction is to attain the intent; for this purpose words of limitation shall operate as words of purchase ; implications shall supply the place of verbal omissions ; the letter shall give way ; every inaccuracy of grammar, every impropriety of terms shall be corrected by the general meaning, if that be clear and manifest.” Upon this high authority we should therefore have been prepared to maintain, that even if in the particular clause in question, the testator had expressly and literally given the rest and residue to the daughter in praesenti, such particular intent could not be allowed to prevail, to the destruction of all the other clauses in the will. But we contend that the testator has not, in this particular clause, nor in any other part of the will, affirmatively or literally given the rest and residue to the daughter in praesenti; but on the contrary, that he has affirmatively and literally postponed her possession of the rest and residue until after the wife’s death. If we are confined to the literal meaning of the particular clause, we must construe it alone exclusively by its own language, and independently of any other matter contained in the willl. To construe this clause literally, it must be construed grammatically. “ Grammar,” as Lord Chief Justice Wilmotsays, (opinions,p. SOS,) “is the great law of language,” and if the inquiry is to be directed to the language, and not to the intent of the testator, the roles of grammar may very properly take the place of the rules of legal construction. Can the English language furnish words more emphatically conjunctive in their signification than “ together with 1” If the most skilful grammarian should be directed to reframe this sentence, for the very purpose of coupling the dwelling house and farm with the rest and residue as objects of one common disposition, could he devise a mode of speech more efficacious than to give the one together with the other 1 Two things cannot possibly be together without being in the same predicament in the same time. The rest and residue cannot go together with the dwelling house and farm, without going at the same time.
    We therefore claim it to be evident that our construction is warranted not only by the spirit, but by the letter of the will, and that a grammatical analysis of the clause in question will result in more firmly establishing the intention which we attribute to the testator. For he intended, in case he had no more children, that both the dwelling house and farm, and the rest and residue should go together to the daughter after the death of his wife ; and he plainly and literally says so. But it is said that the words of the particular clause may be taken distributively, so as to apply the phrase, “ after the death of my wife,” to the dwelling house and farm only, and not to the rest and residue. Now, if a sentence is construed distributive!}'', it ceases to be construed grammatically. - A sentence is construed distributively when its words are distributed by construction in an order different from that in which they are written. It is doubtless true that the courts will in some instances construe words distributively, and not grammatically, and the reason is that they will disregard the rules of grammar if necessary to attain the testator’s intention, But then that necessity must first exist, for there can be no possible inducement to construe a sentence distributively and contrary
      to its grammatical import, until it shall be ascertained that the intention of the testator requires such a mode of construction. Now, in the present case, where is the evidence of such intention to be found 1 The construction of the particular clause must be governed either by its literal, grammatical import, or by the testator’s general intent pervading the whole of the will. The moment it is attempted to construe this clause distributively, the ground of literal construction is abandoned, and the discussion is brought back at once to our first and main position; that the testator’s general intent must first be ascertained from the whole of the will, and then that each particular clause must be construed in subordination to such general intent. Since, then, our construction is supported both by the testator’s general intent, and by the language of the particular clause in question, what reason exists why it should not be adopted 1

    We deny that the mention of one thing in a will can necessarily exclude the intent to give another—for the only question can be, what did the testator intend 1 It may be true, that when a part only of one particular property is given expressly, an intention to give the whole of the same property becomes prima facie improbable, though even in that case it is merely a circumstance, liable to be outweighed or rebutted by other circumstances. But the giving of a part of one property affords no evidence of an intention not to give a part of another property. And here the use of the country seat is given to the wife by one clause of the will, and the estate for life in the rest and residue, deducting the daughter’s legacy, is claimed by implication in a different and detached clause ; and it can hardly be true, even in metaphysics, that when one thing is expressly given by one sentence, the intention to give another thing by another sentence is thereby necessarily excluded.
    The law on this point is fully declared by Chief Justice Vaughan, in the case of Gardner v. Sheldon, cited in the first branch of these remarks, in which, according to Chief Justice Willes, “ he went further in favor of the heir than ever any person went before.” His language is most clear and decisive. “ The difference,” says he, page 268, “ is not sound that one shall not take by implication any land where the same person hath other land or goods expressly devised by the same will; for if the implication be necessary, the having of land or any other thing by express devise will not hinder another taking also by implication.” And he cites the case from 3 East, 6, where a person seised of a manor, part in demesne and part in services, devised the demesne lands to his wife for life, and the services and chief rents to her expressly for fifteen years, and then devised the whole manor to a stranger after the death of the wife. And he argues upon the case, that if the devise of the whole manor had been to the heir instead of a stranger after the death of the wife, she should take the whole manor, both demesne and sendees, by necessary implication during her life, notwithstanding the explicit devise to her of the services for fifteen years. And even if the ■circumstance of a testator giving one thing expressly could be of material import in any case in determining whether he intended to give another, it would in the present case be found ■entitled to no weight whatever, because it can be satisfactorily explained by the manner and the order in which the testator has made the several dispositions contained in his will.
    We therefore insist that the maxim expressio unius exclusio est alterius, adduced by our learned adversary, has no force as applied to this case; for the one thing expressed has no part nor connexion with the other thing implied, and they are morever kept entirely separate by the order in which they stand in the wilL
    D. B. Ogden,

    for the defendants. The only question in this case" arises upon the will of Peter Cone Dyckman. The parties before the court are the late wife of Mr. Dyckman, who was left by him a widow, (now the wife of Mr. Rathbone) and her infant daughter, the only child of her former husband. Both parties claim under the will, and their respective claims must of course be determined upon according to the intention Of the testator. What was the property intended to be given by him to his wife 1 She can have nothing more than he intended to give her, as her claim is made under the will.

      The clause of the will which relates to his wife, gives her an estate for life in the house and farm, situate in the county of Westchester, together with the use of the furniture, plate, pictures and library therein, and also one third part of all his personal estate, except the furniture, plate, pictures and library aforesaid. This, it is contended by the defendant, is all the provision the testator intended to make for his wife. Her one third of the personal estate is about ten thousand dollars, which the testator has given to her absolutely, which no doubt the testator thought, and properly thought, was a most adequate and liberal allowance for her in addition to the use and occupation of one of the best houses and farms in the county in which he lived. But whether the provision is ample or not, is not the question before this court. Is it the provision intended to be made by the testator % That no other provision is made for her expressly by the will is admitted by the counsel for the complainants, but it is said that the court are to infer an intention to make a further provision for her from the words in the next clause in the will, which words are: “ And after the death of my wife, in case I have no more children, I give, devise and.' bequeath unto my said daughter Eliza Letitia, my said dwelling house and farm, together with all the rest and residue of my personal and real estate, of every nature and kind whatsoever, to her and her heirs forever.” It is contended by the complainants, that as by this clause in the will the house and farm, together with all the rest and residue of the real and personal estate, are not given to the daughter until after the death of his wife, the testator must be considered as having intended that during the life of the wife she was to have the whole income of the rest and residue of the estate. I contend that no such implication can fairly arise from this clause in the will. If the testator intended not only to give to his wife the use and occupation of his farm, but also of all his other real estate, is it not inconceivable that he should not have so mentioned it 1 Why confine her life estate to the house and farm,, if he intended she should also have the same estate in his other real estate 1 Jltenlio unius, exclusio alteridus, is a maxim not only of law but of common sense; and it seems to me to be peculiarly applicable to the present case. The testator mentions one part of his real estate which his widow is to enjoy for life; and the mention of this one excludes, upon every principle of fair reasoning, all idea of his intending that she should enjoy any other part of it.
    Again ; the strict grammatical construction of the clause under consideration, I apprehend, is against the complainants. After the devise and bequest to his wife, in which he had given her the house and farm for life, be proceeds, and after the "death of my wife, “ I give, devise and bequeath unto my said daughter, my said dwelling house and farm, together with all the rest and residue of my personal and real estate to her and her heirs forever.” •
    Now, after the devise and bequest to his wife, the testator intends to dispose of his other property to his daughter and other children, if he should have any-others. What property was left for him so to dispose of 1 The remainder of the house and farm, after the estate for life given to the wife should terminate, and the furniture, &c. also granted to her for life, the two thirds of Ins personal property, (one third being given to his wife,) and all the rest and residue of his real and personal estate. We find this clause in the will cautiously penned by the testator, in order to dispose of the whole which he yet had to dispose of. After the death of my wife, I give and devise and bequeath unto my said daughter, “my said dwelling house and farm, together with all the rest and residue of my personal and real estate.” In other words, I give to my said daughter the house and farm, after the death of my wife, and I also give her all the rest and residue of my estate, to her and her heirs forever. The words “ after the death of my wife” were intended to be applied to the house and farm which he had already disposed of during her life, and not to any other part of his estate, of which no disposition had yet been made. The counsel for the complainants refer to Johnson’s Dictionary, in order to shew the meaning of the word together, used in this clause of the will. It is said it means “ in company,” “not a part,” “ in the same time,” &c. Be it so. Does it follow that the construction of the will given by the complainant is correct 'l The words “ together with,” say the counsel, shew the intention of the testator that all the.property is to go in company at the same time, and that none of it, therefore, is to go to the daughter until after the death of the wife. But may not “ together with” mean that “in company with” “at the same time” that I give her the farm, after the death of her mother, I also give her all the vest and residue of my estate, making the two bequests at the same time, and in company with each other ; thus making the words “ together with” apply to the time of making the devise and bequest, and not. to the time of enjoying them 1 But suppose it should be conceded that the testator did not intend that, the devise and bequest to his daughter should be received by her until after the death of her mother ; it seems to me it could by no means follow that the mother was to enjoy the whole estate in the mean time, but that the fair construction would be, that it is an absolute gift to the daughter, to be paid and delivered to her at a future time, to wit, on the death of her mother. And this construction would be a full answer to that part of the argument made by the counsel, in which they say that it is not to be believed that the payment of the first legacy given in the will to his daughter should not be paid to her until a future time, and yet that the testator intended to give her all the rest and residue of his estate immediately.
    The situation of the estate and of the parties has been referred to, as important considerations in coming to a fair construction of this will. Let us examine into them. At the time of the testator’s death, he had one daughter, but he speaks in his will of the probability of his having other children. He has a large property to dispose of. If he had ho more children than the one living, .he gives to that child, on its marriage or coming of age, ten thousand dollars ; if more than one child, then he gives to each of them five thousand dollars at the same time. Until marriage, or coming of age, nothing is given to any of the children. Now if the income of his whole estate is given to his wife, out of what fund are the children to be supported, clothed and educated ? Did the testator intend to leave them dependant upon the bounty of their mother 1—a young woman who would probably immediately marry another man, (which in fact she did, in a few weeks after her husband’s death.) If such was his intention, the children of the testator must become mendicants at the door of their father’s house, asking support from a stranger who has usurped their father’s bed, and his house and his wife, almost before he was cold in his grave.
    . But it is said that the rules of law support the construction of this will contended for by the complainant. To this I answer, if the court are satisfied of the intention of the testator, there can be no rule of law which can require a construction against that intention. Cruise, in his Digest, vol. 6, p. 181, tit. 38 Devise, ch. 10, sect. 17, says, “ The courts have in some instances allowed of a devise by implication, where it has been very apparent, in order to support and effectuate the intention of the testator; but in cases of this kind, the implication must be a necessary, not merely a possible or probable one.” This is the general principle of law upon this subject, and will be found supported by all the cases. Unless, then, in this case there is an implication which is a necessary one, and not merely a probable one or a possible one, that he intended to give the whole of this property to his wife during her life, the claim of the defendant must prevail.
   The Chancellor.

It was said by Sir William Jones more than two hundred years since, that a case upon a will had-no brother, and therefore that authorities in point in such cases could not be expected. This remark is also true of a great many of the cases which arise at the present time, although the statute of wills as to real property, and the common law as to testamentary dispositions of personal estates, have produced an innumerable progeny since the days of the learned chief justice. In all of these anomalous cases, courts are still compelled to resort' to his general rule of exposition; that is, that the intention of the testator, so far as it can be ascertained from the whole will taken together, must govern. But if that intention cannot be thus ascertained, the will must be expounded according to the rules of the common law which are applicable to conveyances and other written instrumenst. It is upon the principle of carrying into effect the supposed intention of the testator, that all the cases of devises and bequests by implication have been decided. If the particular devise or bequest cannot reasonably be accounted for except upon the supposition that the testator intended to make the corresponding disposition of other parts of his property, or of previous estates therein, the courts will carry into effect the intention of the testator, by implying such corresponding disposition. Thus, if the devisor gives to Ms heirs at law the whole or any portion of his real estate, after the death of hie wife, and there is nothing in the will from which that particular devise can reasonably be accounted for except upon the supposition that the decedent intended to give the wife the use of the property in the mean time, the law supplies the deficiency in the declared intention of the testator, and gives to the wife a life estate by implication. On the other hand, if the particular devise or bequest can be reasonably accounted for, taking the whole will together, without supposing that the testator must have intended to make some corresponding disposition of other parts of the property or previous estates therein, not expressed, such corresponding disposition will not be implied. An implication may also be rebutted by a contrary implication which is equally strong. Thus, if a testator should devise his estate to his wife during her widowhood only, and to his heir at law after the death of his wife, the limitation in the first devise could not be reasonably accounted for, upon the supposition that the testator intended his wife should enjoy the estate after her second marriage, and consequently it would rebut the presumption arising from the last devise, that he intended to give her an estate for life absolutelj'. In such a case, upon the second marriage, the estate would go to the heir at law.

In the case under consideration, the will was made by the decedent a few days before Iris death; probably in his last sickness, and in contemplation of his approaching dissolution. He had at that time but one child, an infant between one and two years of age. There appears to have been a solidtucle on the part of the testator to provide for other children, if he should have any, which I cannot reasonably account for, under the circumstances, except upon the supposition that he expected posthumous issue. The general intention of the testator appears to have been to give to his widow the farm and dwelling house in the county of Westchester during her, life, and to his child or children a corresponding equivalent in legacies out of his personal estate ; and then to divide the residue of his personal estate between the widow and his child or children, one third to the former and two thirds to the latter. The legacies to the daughter, and to his other children if he should have any, were not to be paid to them until they arrived at the age of 21, or were married ; and from the age of his wife it was hardly probable that she would remain single until that time. It is therefore rather an unnatural presumption to suppose the testator intended to give all the residue of his property tó his wife for life, leaving his infant child or children wholly unprovided for in the mean time, and dependant on a step-father for subsistence.

There appears to have been a particular solicitude on the part of the testator to preserve the Westchester property in the family; and it is from coupling the disposition of the remaining two thirds of his estate with this particular disposition of that property that the doubts as to the construction of this will have arisen. Having devised this property to the widow for life, and given to his child or children corresponding legacies as an equivalent, he in the next place bequeathed one third of his remaining personal property to his wife absolutely. He then proceeeds thus : “ And, after the death of my wife, in ease I should have no more children, I give, devise and bequeath unto my said daughter Eliza Letitia, my said dwelling house and farm, together with all the rest and residue of my personal and real estate of every nature and kind whatsoever, to her and her heirs forever. But should I have a son, then and in that case, I give, devise and bequeath to him my said dwelling house, farm,” &c. The literal reading of this clause unquestionably would give the residue of the property, as well as the dwelling house and farm, to the daughter, only after the-death of the mother. But the same literal construction of the following clauses would deprive the widow of the house and farm immediately upon the birth of a son, or of another daughter. I think, however, it is evident that neither of these constructions would correspond with the actual intention of the testator. The expression “ after the death of my wife” was intended to apply to the devise of the house and farm only, and to restrict that devise so as not to revoke the previous devise of the same property to the widow for Ufe. The clear literal interpretation of words in a will may be departed from, if they will bear another construction, where other parts of the will manifest a different intention. And the court frequently rejects the strict grammatical sense to carry into effect such intent of the testator. In the language of Chief Justice Bridgeman, “• wills being made by men in extremis, the law will help and assist them, and will not judge, if any other exposition can be made, that a man who is on his death bed will wilfully and without cause disinherit an infant who never offended.” (O. Bridg. R. 52.) To correspond with the intention of the testator, the clause above referred to should be read as though the words “ after the death of my wife” followed “ my said dwelling house and farm,” and were included in a parenthesis. Or to give effect to that intention, these two devises may be transposed, and the will would then read thus : “ In case I should have no more children, I give, devise and bequeath to my daughter Eliza Letitia, all the rest and residue of my personal and real estate, of every nature and kind whatsoever, and after the death of my wife, my said dwelling house and farm, to her and her heirs forever.

But should I have a son,” &c. The testator by a subsequent clause in the will has provided for the disposition of this same residue of his property both real and personal, except the dwelling house and farm, upon the contingency of his having other children, either sons or daughters. That clause also helps to strengthen the belief that it was the intention of the testator to give to the daughter this residue of his property immediately in the event, which has happened, of her being his sole heir.

There is nothing, however, in this case that can deprive the widow of her dower in the real estate in the city of New-York. Neither the life estate in the Westchester property nor the bequest of one third of the personal estate are given to the wife in lieu of dower. And taking the whole will together, I think it is fairly inferrible that the testator intended she should enjoy her thirds in the real estate not specifically devised to her, as well as an equal third part of the personal estate.

The devise over to the mother, in case of the death of the daughter without leaving lawful issue, appears to be a valid limitation as to the personal estate. In the case of Atkinson v. Hutchinson, (3 Peer Wins. 258,) Lord Talbot decided that the words “ without leaving any issue” must be intended to mean without leaving issue at the time of the death of the first taker, and that it was not therefore in the nature of an estate tail. A similar decision was made by Lord Macclesfield, a few years previous, in the case of Forth v. Chapman, (1 Peer Wms. 664;) where a contrary decision of Sir Joseph Jekyll, .the master of the rolls, was overruled and reversed. (See also Goodtitle v. Pegden, 2 Term Rep. 720. Martin v. Long, Prec. in Ch. 15. Sheppard v. Lessingham, Amb. Rep. 122.) But as to the real estate, it appears to have been the settled law in England long before the revolution, that these words in a will implied an indefinite failure of issue, and therefore as to that part of the property they created an estate tail, which by our statute is turned into a fee simple. (1 Peer Wms. 667. 2 Ves. sen. 180, 616. Cowper, 410. 1 East’s Rep. 229, 263. Comyn’s Rep. 372.) It is not for me to reconcile both of these rules with the principles of common sense, or to furnish any valid reasons for supposing that the testator meant one thing when he used these words in reference to the real estate, and that he meant something different when in the same sentence he used them in reference to his personal estate and chattels real. The legislature has seen the absurdity of these different constructions of the same words in a will, when applied to real or personal estate, and has applied the proper remedy for all future cases. It has also restored the term “dying without issue” to its natural and obvious meaning. (1 R. S. 724, § 22, 23, & 773, § 1, 2.)

A decree must be made, declaring the construction of the will in conformity to this decision, and securing the infant’s share of the personal estate by an investment in public stocks, A * ™ ■ or m some other permanent securities. I he income 01 the in-font’s share, both of the real and personal estate, belongs to her absolutely, and is to be applied to her maintenance and education, so far as it is necessary. The will in this case having presented a fair question for the decision of the court, the complainant is not to be charged with the defendants’ costs. She must pay her own costs out of her share of the estate ; and the costs of the executor, and of the infant defendant, must be paid out of the general residue of the personal property bequeathed to the latter by the will. The decree will also provide for the settlement of the accounts of the receiver and of the administration of the estate, and for the payment of the annuity to Mrs. Conklin, and for the support of the coloreé woman, if necessary.


text:
    The Fulton Bank vs. The New-York and Sharon Canal Company.
    October 31.
    After a decree by a vice chancellor awarding a perpetual injunction against a suit at law, the chancellor will not, pending an appeal from that decree, modify the injunction, so as to permit the appellant to proceed to trial and judgment without prejudice to the rights of the complainant.
    While this cause was pending, and before the hearing, an injunction granted therein had been so far modified as to permit the defendants in this suit to proceed to trial and judgment at law without prejudice to the complainants’ equitable rights. The defendants proceeded to trial at law, and on that trial were nonsuited. Afterwards this cause was brought to a hearing before the vice chancellor of the third circuit, and a perpetual injunction was decreed, restraining the defendants from proceeding at law. They appealed from the decision of the vice chancellor, which apppeal is still pending. A new trial having been awarded in the suit at law by the supreme court, the appellants now applied to modify the decree of the vice chancellor, so as to permit them to proceed to trial and judgment at law, pending the appeal before the chancellor.

      J. Hoyt, for the complainants.

      S. P. Staples, for the appellants.
   The Chancellor.

This cause having been heard and decided by the vice chancellor upon the merits, and a perpetual injunction being awarded by him, that decision in the present state of this suit must be presumed to be correct notwithstanding the appeal. It would, therefore, be improper to subject the complainants to the expense of another trial at law, for which the court has no means of indemnifying them if the decree of the vice chancellor should be simply affirmed. In this case the appellants will be deprived of no right, if the proceedings at law are stayed until the decision of the cause on the appeal. Before decree the plaintiff at law ought not to be delayed from proceeding to judgment merely on account of a disputed equity, and where the complainant in this court cannot be prejudiced by such a proceeding. But after a decree of this court establishing such equity, the situation of the parties is materially altered; and it must be a very special case which will authorize the court to subject, the party in whose favor such decree is made to the expense of a trial at law, pending an appeal. In this case no particular necessity for such a proceeding is shewn, and the court cannot upon the mere suggestion that an appeal has been brought grant this application.

The petition must therefore be dismissed, with costs-