text:
    In the Matter of Isaac L. Kip.
    Sept. 7th.
    Under the act to perpetuate the testimony of witnesses, (1 R. L. 454,) a witness is bound to give evidence in the same cases and to the same extent that he would be, were he called as a witness upon the trial of the cause.
    The act does not authorize the examination of a witness who could not be compelled to testify upon the trial.
    No witness is bound to answer a question, which would either criminate himself render him infamous, or subject him to a penalty or forfeiture.
    A witness who is neither a nominal nor real party to the suit, is not excused from giving evidence, although his testimony might be used against him in a civil suit; unless it will subject him to some loss or disadvantage in the nature of a penalty or forfeiture.
    In a suit by or against a corporation, one of the corporators is not so far a party to the suit as to be excused from testifying against the corporation.
    The answer of a corporator to a hill of discovery cannot be read in evidence against the corporation.
    The declarations of corporators, although officers of the corporation, are not evidence against the corporation.
    Corporators who have no personal interest in the controversy are competent witnesses in favor of the corporation.
    On the 19th of August, 1829, an order of this court was made directing a habeas corpus to be issued to the sheriff of New York to bring up the body of Isaac L. Eap, then in his custody, under an order of commitment made by Thomas Bolton, a master in Chancery; which writ was thereupon issued, returnable in this court on Tuesday the 25th of August, at the capítol in the city of Albany. By the sheriff’s return, the report of Master Bolton and other affidavits and documents produced before the court, it appeared that L. L. Van Kleeck made oath before the master that an action of ejectment commenced by him in the Supreme Court against the minister, elders and deacons of the reformed Protestant Dutch Church in the city of New York and Cornelia Strong, and another action against the same corporation and E. and S. S. ^Rockwell, affected the title of lands lying in the city and county of New York; that the testimony of Isaac L. Kip was material and necessary in the prosecution of such suits; and he applied for his examination before the master pursuant to the provisions 0f tRe act to perpetuate the testimony of witnesses, (1 Rev. Laws, 454.) The master made an order for the examination of Kip, and assigned a time and place for that purpose, of which due notice was given to the defendants in the ejectment suits; and the witness was summoned to attend accordingly. Kip appeared before the master, but declined testifying, on the ground that he was the treasurer and one of the corporators of the Dutch Church in the city of Kew York, and that he was also a pew holder in two churches which were on lands the title whereof depended upon the same questions which arose in those . causes. These facts were not disputed by Van Kleeck’s counsel, who still insisted upon his right to perpetuate the testimony of the witness in these suits. The master decided that Kip was bound to testify, notwithstanding his objection; and on his refusal to be sworn, the master issued warrants for his commitment in pursuance of the provisions of the act.

      J. Duer for L. Kip:
    Kip, as a corporator, being a party in interest to the ejectment suits, and being directly interested in their event, was privileged from examination before the master. The corporators of the Dutch Church in New York, for the time being, are as much parties in interest as if sued in their private names. The whole doctrine of corporations has been mistified by a jargon of definitions. The true definition of a corporation is, that it is an association of natural persons for certain purposes. If the corporators of a corporation aggregate die or cease to exist, the corporation is dissolved. Courts have a right to inquire into the rights and character of the private individuals composing a corporation. In England the inhabitants of a parish which is a corporation are made liable for the support of the poor and the repair of highways. The judiciary act of Congress speaks of citizens of differen states being parties to a suit; and no statute expressly gives jurisdiction to the federal courts over *corporations. And it was contended, in the suit of The Bank of the United States v. Devaux, (5 Cranch, 61, 92,) that a corporation was not a citizen of a state, and that, therefore, the court had no jurisdiction of the cause. But the court decided that the real parties to the suit were the corporators, who were citizens, and that, therefore, the court had jurisdiction. In the suit of The Washington Ins. Co. of the city of New York v. Price, (1 Hopk. 1,) the Chancellor decided that a stockholder of that corporation was a party to the suit. The question here is as to the privilege of a witness, and not his competency. A member of a corporation was always excused from testifying against the corporation if he claimed his privilege. Kip has a personal interest in the ejectment suits. In the suit of Mauran v. Lamb, (7 Cowen, 174,) the real party, though not named in the record, was allowed his privilege. (People v. Irving 1 Wendell, 20.) In King v. Inhabitants of Woburn, (10 East’s Rep. 395,) it was held that a rateable inhabitant, although not a nominal party to the appeal, was entitled to his privilege if he claimed it on account of interest, and that he could not be compelled to give evidence for the adverse party. In the charter of the Dutch Church, there is a clause authorizing an assessment to be made upon the members of the church for all expenses either in support of the minister or otherwise. In this case Kip has a personal interest. If examined he maybe subjected to a civil suit. This is an attempt at a discovery, which could not be obtained by a bill of discovery. Kip is an officer of the corporation, and has possession of the title deeds. If a bill had been filed against the officers of the corporation, they could not have been compelled to disclose the evidence here sought after.

      L. H. Palmer, contra:
    If Kip is such a party to the ejectment suits as to render his declarations admissible evidence against the corporation, then he is privileged from examination as a witness. At the time the charter of this church was granted, there were religious difficulties in the colony of New York. The Church of England had been long established; and it was deemed important to obtain a charter for the *Dutch Church different from those of the Church of England. The declaration in the charter of the former, that communicants should be members of the church, only conferred upon them the immunities and privileges of the church, analogous to those enjoyed by the citizens of New York and Albany as members of the corporations of those cities. The provisions in the charter subjecting the members of the church to an assessment have been repealed. (1 R. L. 67, Greenleaf’s ed. ch. 9, sect. 2 & 7.) No general rules can be laid down as to the competency of corporators as witnesses for or against the corporation. Each case must be governed by its peculiar circumstances. Corporations are divisible into two general classes: 1. Public and general corporations, such as colleges, towns, cities, &c.; 2. Private corporations, such as banking companies, &c. In the former class of corporations, the officers and members have no personal interest in the funds and property of the corporation. In private corporations the funds and property belong to the stockholders. The members of public corporations are admissible as witnesses for or against the corporation; for they do not testify for or against themselves as individuals. The rule appears to be, that where members of a corporation cannot derive any private advantage from the subject matter of the controversy, which concerns the public only, they are admissible as witnesses. (2 Stark. Ev. part 4, p. 427.) The decisions upon the subject of admitting corporators as witnesses have been founded upon the distinction between public and private corporations ; (Hope Ins. Co. of Providence v. Boardman, 5 Cranch. 57.) An interest to exclude a witness must be positive certain and direct. Where a corporation will only be . direct loser, and not the corporators, the interest of the latter is too remote to exclude them as witnesses for or against the corporation; (Locke v. The North American Ins. Co., 13 Mass. Rep. 61.) In private corporations the members are the owners of the corporate property, and are directly interested in the event of a suit in which the corporation is a party. The Dutch Church of New York is a public corporation, created for public purposes, and the corporators have no personal *interest in its corporate property. If the corporation was dissolved, the property would not belong to the corporators; (People v. Runkle, 8 John. R. 363, Peak’s N. P. Cases, 153; 2 Star. pt. 4, p. 427, tit. Corporation; King v. Inhabitants of Hardwick, 11 East, 578; State of Connecticut v. Bradish, 14 Mass. R. 296; 12 John. R. 285; Drummer v. Corporation of Chippenham, 14 Ves. 252; Falls v. Belknap, 1 John. R. 491; Swift’s Ev. 57; Waring v. Catawba Co., 2 Bay’s Rep. 109; Rex v. Prosser, 4 T. R. 17; King v. The Inhabitants of Little Lumley, 6 T. R. 157; King v. Inhabitants of Woburn, 10 East’s Rep. 395; King v. Inhabitants of Whitley Lower, 1 Maule & Selw. 636; Jackson v. Van Duzen, 5 John. R. 144; Gilpin v. Vincent, 9 John. 219; Meredith v. Gilpin, 6 Price, 146; Jackson v. Inhabitants of Netherthong, 2 Maule & Selw. 337, 8.) In Nason v. Thatcher, (7 Mass. Rep. 398,) corporators were received as witnesses in a suit between the heir and executor, although the corporation was made the residuary legatee by the will of the testator". An inhabitant of the state has been decided to be a competent witness in a suit where the state is a party; (State of Connecticut v. Bradish, 14 Mass. Rep. 296.) A member of a corporation may sue the corporation ; (Waring v. Catawba Co., 2 Bay’s Rep. 109.) Inhabitants of parishes in England have been admitted as witnesses in a suit concerning land in which the parish was interested; (Meredith v. Gilpin, 6 Price, 146.) And a parishioner, although hable to be rated, if not actually rated, is a competent witness for or against his parish; (Rex v. Prosser, 4 T. R. 17.) In the present case Kip is not directly interested in the ejectment suits. His release would not be of any avail. His interest in the corporate property will not descend to his heirs. It cannot be assigned to any other communicant. He cannot defend as landlord. He is not personally liable for costs or mesne profits; (First Parish in Brunswick v. Dunning, 7 Mass. Rep. 445; Nason v. Thatcher, 7 id. 398; People v. Runkle, 8 John. R. 363; Gilpin v. Vincent, 9 John. 219.) An officer in a corporation can be compelled to testify against the corporation. He is not exempted or prohibited from testifying by the policy of the law. This exemption and *prohibition extends only to the case of man and wife and attorney and client. (1 Starkie’s Ev. pt. 1, p. 103, 4, sect. 76, 78; 2 id. pt. 4, p. 396, 399, and notes.) An attorney may be compelled to testify that he has a deed in possession, entrusted to him by his client; (Brandt v. Klein, 17 John. R. 335; Jackson v. McVey, 18 John. 330.)

      A. Van Vechten, in reply:
    The minister, elders and deacons of the Dutch Church in New York are the agents of the corporation. The charter of that church was granted for the benefit of the corporators, who are the persons beneficially interested. Kip is substantially a party to the ejectment suits, although not so eo nomine. But the corporate name includes him by legal construction. The object of the statute to perpetuate testimony was to preserve evidence which might be lost by the lapse of time. The intention of the act was not to allow a party to fish for testimony. He ought to lay his finger upon the point to be proved. If it should turn out to be a fishing examination, a strict hand ought to be held over it. The examination in this case is one of this character. A church is a corporation very unlike that of a college. Suppose, as is frequently the case, property is given to the members of a church, who are afterwards incorporated, the corporators will most clearly have a personal interest in the corporate property. The provision in the Revised Statutes authorizing the admission of corporators as witnesses to testify against the interest of the corporation, proves that it is a doubtful question whether they can" now be received as such witnesses. Kip is the treasurer of the church, and as such treasurer has the custody of their title deeds. Parol proof could not upon trial be given of their contents, unless notice to produce them had been served. Here Kip was required to testify in relation to them without the service of any such notice; which testimony was to be used upon the trial, in the event the deeds were not then produced. It is not true that, in order to entitle a party in interest to the privilege of refusing to testify, his admissions must be evidence against the opposite party. Co-tenants may generally be witnesses for each other; but if *there was a survivorship of interest between them, they would be privileged from answering questions which would destroy their title. As to the interest of Kip, the only question is, is it an existing interest, and not whether it be alienable or descendible. But the interest of Kip in the pews is both alienable and descendible. A communicant by joining a church subjects himself to its rules, and he cannot abandon the church without its consent. If he does, he is an undutiful member, and becomes obnoxious to its reproaches. Charity should induce the belief that his Christian faith does not depend upon and is not affected by his temporal interest.
   The Chancellor:—By the act under which these proceedings were instituted, it was the intention of the legislature to give to the master or other officer power to take testimony and to compel the witnesses to give evidence in the same cases and to the same extent that the court would be authorized to compel the witness to testify on the trial of the cause. It does not authorize the examination of a witness who would not be compelled to testify on the trial. The witness is not obliged to criminate himself, or answer any question which he would not be bound to answer if examined in open court. The provision in the second section of the act, (1 Rev. Laws, 455,) that the officer shall in-elude in the deposition any answer or declaration of the witness which shall be required to be included by either party, does not deprive the officer of all discretion in deciding whether the witness shall be compelled to answer the question proposed. The legislature never intended to establish an inquisition, by which witnesses should be compelled to criminate themselves, or to disclose secrets in which the parties to the examination had no interest. But as it is impossible for the officer to understand the precise bearing the testimony will have on the cause, it is made his duty, if the witness consents to answer the question proposed, to insert such answer in the deposition, leaving the relevancy or materiality of the testimony to be decided upon by the court before whom the cause is tried. If the testimony is calculated to criminate the witness, render him infamous, or to subject him to a penalty or forfeiture, the officer has no right to compel him to testify. So *if the master is satisfied the testimony can have no possible bearing upon the questions which may arise in the cause, he ought not to compel the witness to answer, especially where a reasonable objection is urged by him. The officer must necessarily have some discretion on this subject, and he may require the party on whose application the examination is made to explain the nature of the litigation, so far as to enable him to judge whether such applicant is proceeding in good faith to perpetuate testimony against the adverse party, or is, under that pretence, only fishing for testimony to be used against the witness, or for other purposes. On this subject the officer must be permitted to judge; and he is not compelled to commit the witness for refusing to answer, if he thinks the question ought not to be answered. If the answer to a question cannot injure or prejudice the witness, the officer should require and cornpei him to testify, unless he is satisfied the evidence could not have any possible bearing upon the subject in controversy.

By the charter of the Dutch Church in New York, granted in 1696, and confirmed by the act of the 17th of March, 1784, (1 Greenl. ed. of laws, 67,) the minister, elders and deacons, and all other communicants of that church, and their successors, are corporators, under the name or style of “ The Minister, Elders and Deacons of the Reformed Protestant Dutch Church in the city of New York.” The witness is a corporator and also an officer of the corporation. Although he may not have any personal interest in the suits now commenced, he has an interest in the question to which it is proposed to examine him before the master; as the title to the churches in which he is a pew owner, depends on the same question substantially as that which arises in the present suits. The questions to be decided in this case are:

1st. Is a witness compelled to testify to matters relevant to the issue, in a cause to which he is not a party, when his answers will subject him to a civil suit; or may be used against him in a suit in which he is interested ?

2d.. Is a member of a corporation aggregate so far a party to a suit brought by or against the corporation as to excuse *the corporator from giving testimony in favor of the adverse party ?

Both of these questions have been frequently agitated in the courts of this country and of England, and the decisions in relation thereto have not been uniform. Another question has often been raised, as to how far, and in what cases, corporators may be witnesses in behalf of the corporation; but that question does not arise here.

It was once doubted in England whether a witness could be compelled to answer any question where the answer might subject him to a civil suit, or charge him with a debt. Two nisi prim decisions of Lord Kenyon, and a dictum of Chief Justice Pratt are referred to by Peake, to show that a witness is not bound to answer under such circumstances. (Peake’s Ev. 184.) By referring to Peake’s note of the case of Bain v. Hargrave, it will be seen that the question put to the witness was not relevant to the cause then on trial, and was only intended to ascertain whether the witnesses did not owe money to the plaintiff. Lord Kenyon said he would not compel the witness to answer any question which might tend to charge himself with the debt. And in Raines v. Towgood, also referred to by Peake, the witness was excused from answering the question, as his answer might subject him to a penalty of 5001 under the act to prevent stock jobbing. In the case before Chief Justice Pratt, (1 Strange, 406,) the witness was compelled to answer, although it went against his interest; but the chief j ustice intimated that he would not have compelled an answer under other circumstances. And in Title v. Grevett, (2 Lord Raymond, 1008,) Holt, Chief Justice, said a man who had conveyed land might be a witness to prove he had no title, for he testified against himself, but he was not compelled to testify. The loose dicta in the two last cases, and those two nisi prius decisions of Lord Kenyon, are all the authorities relied on by Peake, to support this position; and it is remarkable that the case of Bain v. Hargrave, the only one in which the question is said to have been raised, is contradicted on the authority of Lord Chancellor Erskine, (1 Hall’s Law, I. 280.) He says that for 27 years he had not been prevented from attending the courts by *any indisposition or bodily infirmity, and during all that time he never knew the objection taken that the answer to an interrogatory would render the witness responsible in a civil suit; that he was counsel in the cause stated in Peake’s note, but had no recollection that any such decision was made. In 1806, this question came before the House of Lords in consequence of the proceedings in Lord Melvill’s case, and the opinion of the twelve judges was required thereon. Their opinions are briefly alluded to in a note to the last London edition of Phillips’ Evidence, (1 Phil. Ev. ed. of 1829, p. 272, n.) Pour judges were of opinion that the witness was not bound to answer. The other eight judges were of the contrary opinion; and in which they were supported by Lord Eldon and Lord Chancellor Erskine. I think these opinions, supported as they are by that of Lord Mansfield, are conclusive to show that in England a witness, who is neither nominally or substantially a party to the suit, is bound to answer any question pertinent to the issue, where his answer will not criminate himself, or subject him to a penalty, or to some loss or injury which is in the nature of a penalty or forfeiture. (See 1 Hall’s Law, I. 223,) In consequence of the difference of opinion among the English judges, an act was passed declaring the law to be in accordance with the opinion of the eight judges and of the Lord Chancellor and Lord Eldon. (Statutes at Large, May, 1806.)

The same question has frequently been agitated in this country, and the decisions in the different states have not been uniform. In most of the states where the question has been raised, the witness has been compelled to testify. In Connecticut it has been decided that the witness was not compellable to testify against his own interest. (2 Root’s Rep. 406, 528; 3 Conn. Rep. 528; Kirby’s Rep. 203.) A similar decision was made in the state of Tennessee, (Cook v. Corn, 1 Overton’s Rep. 340.) In Pennsylvania,- Maryland, Kentucky and Louisiana, it is settled that a witness is bound to answer a question pertinent to the issue, although such answer may subject him to a civil suit. (Baird v. Cochran, 4 Serg. & Rawle, 397; Taney v. Kemp, 4 Harris & John. 348; Gorham v. Carrol, 3 Little’s Rep. 221; The Planter's *Bank v. George, 6 Martin’s Rep. 670.) Derbigney, J., who delivered the opinion of the court in the last case, says their decision is not founded on the ancient law of Louisiana on that subject, which was abrogated by the establishment of a free government, instead of the despotism by which the country had previously been governed. But he founds the decisions of the court upon the principles recognized in those countries where liberty directs the administration of justice; and he refers to the opinions of the English judges and Chancellor on Lord Melvill’s witness and indemnity bill. In the case of The Executor of Hawkins v. Sumpter, (4 Dessaus. Rep. 103, 446,) the Court of Chancery of South Carolina compelled a witness, on a subpoena duces tecum, to produce books in his possession, although he alleged that their production would enable parties to recover against him, as the bail for a deceased sheriff, whose estate was insolvent; and this decision was affirmed on appeal. In Appleton v. Boyd, (7 Mass. Rep. 131,) the Supreme Court of Massachusetts refused to compel a witness who was jointly interested in the event of the suit, as the partner of the plaintiff, to give testimony against his interest. But on examination of that case, it will be found perfectly consistent with the opinion of the majority of the judges in Lord Melvill’s case; for the object of the defendant was to establish the defence of usury; which was in the nature of a penalty or forfeiture. The case of Mauran v. Lamb, in the Supreme Court of this state, (7 Cowen’s Rep. 174,) was a similar attempt by the defendant, to establish a defence of usury by the testimony of the real plaintiff in the suit; where the action was nominally in the name of another person, but for her sole benefit. On no principle therefore could she be compelled to testify to facts which would subject her to a forfeiture and defeat her action. The question now under discussion was not. intended to be decided in that case.

Upon a full examination of all the authorities on this subject to which I have been referred, or which I have been able to obtain by my own researches, I have arrived at the conclusion, that a witness, who is neither nominally nor substantially a party to the suit, is not exempted from giving evidence, *although that evidence may be used against him in a civil suit, unless the disclosure will subject him to some loss or disadvantage in the nature of a penalty or forfeiture. If the party to whom the witness makes himself responsible by his testimony could, by a bill of discovery, obtain the same disclosure to be used directly against the witness himself, it would be unjust to deprive such party of the benefit of the testimony against a third person. In such a case the answer of the witness to a bill of discovery could not be read in evidence in a suit against the third person; and the only way to obtain the testimony is to examine the interested person as a -witness.

The conclusion at which I have arrived on the first point, renders it necessary to examine the question whether Kip is so far a party to the suits as to excuse him from testifying. In other words, could his answer to a bill of discovery be read in evidence against the corporation of which he is a member ? The case of The King v. The Inhabitants of Woburn, (10 East’s Rep. 395,) is relied upon to show that corporators are the real parties, to the suit, and are excused from giving testimony against the corporation. That was not a proceeding against a corporation, and the witness was not excused on the ground that he was a corporator. It was a proceeding under the English poor laws, where the appeal is carried on by the inhabitants of the parish in the names of their officers. The costs of the suit, and other expenses of the pauper, are charged upon the inhabitants, actually rated in proportion to their property. They are the real parties, and the expense falls directly upon them. In that case, Le Blanc, Justice, says, If the sessions had been aware, at the time, of the extent of the question, there would have been no difficulty; for if the witness was rejected on the ground of his being a party to the suit, his declaration of any facts touching the matter in issue would necessarily have been evidence against him.” And in the case of The King v. The Inhabitants of Hardwick, (11 East, 578,) the same court decided that the rated inhabitants were the real parties to the appeal, and that the declaration of a rated inhabitant of one parish might be given in evidence in favor of the adverse parish. *These eases do not, therefore, depend upon the principles applicable to incorporations, as the declarations of corporators, even officers of a corporation, are not evidence. (Hartford Bank v. Hart, 3 Day’s Rep. 491; Magill v. Kauffman, 4 Serg. & Rawle, 317.) In the Bank of the United States v. Deveaux, (5 Cranch, 61,) the Supreme Court of the United States decided that the corporators, and not the corporation, were to be considered the parties, in determining the question of jurisdiction; and that an averment that the complainants were citizens of Pennsylvania, was an allegation that all the stockholders of the bank were citizens of that state. But in the case of The Bank of the United States v. The Planters’ Bank of Georgia, (9 Wheaton, 904,) they decided that the corporation could be sued in the United States’ courts, although a sovereign state, which could not be sued, was one of the corporators. These cases depended upon the construction of the constitution and laws of the United States, in relation to the jurisdiction of the federal courts. Even on that question the judges were not unanimous; but they exemplify the principle, that in a case of doubt a good judge always decides in favor of his own jurisdiction. Neither of these decisions had any reference to the question whether the corporators were to be considered parties to the record so far as to prevent their being witnesses. I believe it is now the practice of all courts to admit corporators to testify in behalf of the corporation where they have no personal interest in the controversy; and against the corporation where the witness does not object. But they are excluded from testifying where they have a direct personal interest in favor of the party calling them, in virtue of the corporation or otherwise. The freemen of our cities are corpora-tors, and have an indirect interest in almost every suit brought by the corporation. But they are admitted as competent witnesses, and are even permitted by statute to serve as jurors, which certainly could not be allowed if they were considered parties to the suit; as it is a universal rule of natural law that no man shall be a judge in his own case; and jurors are judges of the facts. In the case under consideration, it is even doubtful whether the members of the Dutch Church "“have such a direct interest in this controversy as to render them incompetent witnesses for the corporation. The only case which I have been able to find in which the precise question now presented has been decided, is The City Bank of Baltimore v. Bateman, (7 Har. & John. 104.) In that case the Court of Appeals in Maryland decided that the president of a moneyed corporation, who was a stockholder therein, might be called as a witness for the adverse party, and compelled to testify against his interest. An express provision to that effect is made in the late revision of the laws in this state, (2 Rev. Stat. 405, 407.) The note to this provision, in the report of the re-visors is, that it is intended as declaratory of the rule believed to exist, but sometimes questioned. (Revisors’ Rep. pt. 3, ch. 7, tit. 3, sect. 96.) The notes of the revisors are not considered as authorities settling what the law previously was; but they may properly be referred to for the purpose of showing that a particular section was not introduced by them into the statutes as containing a new principle.

It was suggested by the counsel for the corporation that the evidence sought from this witness might be obtained by a bill of discovery; but if I am correct in supposing the declaration of the corporator would not be evidence against the corporation, I apprehend his answer to such a bill could not be read in evidence against them. (Vermilyea v. The Fulton Bank, 1 Paige’s Rep. 37.)

I think the witness was not so far a party to the suits in this case as to excuse him from testifying. The master was therefore right in requiring him to testify notwithstanding his objection. He was legally and properly committed for refusing to be sworn and give evidence in relation to the subject matter of those suits; and he must be remanded to the custody of the sheriff, on the warrants of commitment, until he submits to be sworn and give evidence to be used in those suits.

       2 R. S. (4th ed.) 647, sec. 60.

       See Southard v. Rexford, 6 Cow. 254, 259; People v. Mather, 4 Wen. 229, 250, 251; United States v. Burr, 1 Rob. 207, 8, 242 to 245; see also 2 Cow. & Hill’s Notes to Phil. Ev. 736-746.

       In New York a witness cannot refuse to answer any question on the ground that it will subject him to a civil suit. 2 R. S. (4th ed.) 652, sec. 101, Cook v. Spalding, 1 Hill. 588.


source: Caselaw Access Project

license: Public Domain

text:
    *Stilwell and Bush v. Van Epps and Van Epps.
    October 6th
    While the plaintiff has the body of the defendant in execution on a ca. sa., his right to proceed against the property of the latter is suspended. He cannot therefore, as long as the defendant is so in custody, file a bill in Chancery to reach his equitable estate.
    An assignment by a debtor under the insolvent act transfers all his estate to the assignee, for the benefit of his creditors generally; anda judgment creditor can gain no preference in relation to such property, by a bill sriisequently filed in this court.
    The bill in this cause was filed by judgment creditors of H. Y. D. Yan Epps, one of the defendants, after their fi.fa. against him had been returned unsatisfied, for the purpose of reaching a fund in court alleged to have been fraudulently assigned by him to the other defendant. The defendant H. Y. D. Yan Epps put in a plea setting forth the fact that, previous to the filing of the bill, the complainants had caused him to be arrested on a ca. sa., on which he still remained in custody. The cause was brought to a hearing on the plea. The complainants also presented a petition setting forth that since the plea was put in, H. Y. D. Yan Epps had been discharged from custody under the non-imprisonment act, and had assigned all his properly to Evert Yan Epps under the act, but that the fund in court was not embraced in his inventory. They, therefore, asked leave to file a supplemental bill setting forth these facts, and to make the assignee a party.

      J. King for the complainants.

      J. N. Cushman for the defendants.
   The Chancellor :—The complainants having taken the body of their debtor in execution, could not proceed against his property at law while he remained in custody. (Horn v. Horn, Ambl. R. 79; Jackson v. Benedict, 13 John. R. 532.) The bill filed in this court to reach the equitable assets of the debtor is merely in aid of the legal remedy, and that remedy being at an end, or at least suspended, by the voluntary act *of the complainants at the time they filed their bill, this suit cannot be sustained. The plea must, therefore, be allowed.

A supplemental bill will not aid the complainants, because they commenced this suit when they were not entitled to any kind of equitable relief; and the subsequent assignment under the insolvent act has transferred all the interest of their debtor to the assignee for the benefit of the creditors generally. (Candler v. Pettit, 1 Paige’s Rep. 168.) The application for leave to file a- supplemental bill is denied with costs.

       See 2 R. S. (4th ed.) 203, sec. 33; Bailey v. Burton, 8 Wen. 348. Property fraudulently conveyed by an insolvent debtor prior to his discharge, passes to the assignees, although not mentioned in the inventory. Ward v. Van Bokkelen, 2 Paige, 289; Roseboom v. Mosher, 2 Denio, 61.


text:
    Wood and Wife v. The Executors of Riker.
    October 6th.
    Where a legacy to a daughter was payable on her marriage or when she became of age, and she married before arriving at full age, in a suit brought by her and her husband for the legacy, after the lapse of six years it was held that the statute of limitations did not run against her, she coming within the exception in the statute in favor oí femes covert.

    Where the statute of limitations is a good defence to only a part of the complainants’ demand, if pleaded as a bar to the whole, the plea will be bar.
    The intestate, Gr. Riker, was the testamentary guardian of the complainant, Phebe Ann Wood, and the surviving executor of her father’s will. Her share of the estate was to be paid when she became of age, or was married. Previous to her marriage, the guardian received $500 in satisfaction for an assault committed upon her. She married Wood in 1819, and became of age in July, 1821. Biker died in September, 1827, and in 1829, the bill in this case was filed against his executors for an account and payment of Mrs. Wood’s share of the estate, and of the money received upon the compromise for the assault and battery. The executors put in a plea of the statute of limitations.

      L. Jenkins for complainants.

      P. A. Jay for defendants.
   *The Chancellor :—The right of Mrs. Wood to a share of her father’s estate did not accrue till after her marriage, which brings this case within the exception contained in the statute in favor of femes covert. It does not appear when the $500 which was received by Biker as guardian, was paid to him. As to that, he was bound to account when she became of age. The statute would not commence running until the expiration of his trust, even if it can be considered a bar in any case of a direct trust. If the statute of limitations was a good defence to one part of the complainant’s demand, it is not properly pleaded as a bar to the whole. As Mrs. Wood was both an infant and feme covert, and the latter disability still continues, the plea is bad in substance.

It must be overruled with costs; and the defendants must answer the bill and pay the costs within twenty days after service of a copy of this decree.


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    Brockway impleaded with Berry, appellant v. Wells, respondent.
    October 6th.
    An assignment of a land contract for the security of a debt due the assignee upon the condition, that if the debt was paid at the time stipulated, the assignee should re-assign the contract, is, in equity, a mortgage, and the assignor has a right of redemption.
    As a general rule, a mortgagor pays costs to the defendant, on a bill to redeem, although he is successful; but if the defendant has been guilty of improper conduct, he will be deprived of costs, and in some cases will be compelled to pay costs.
    If a mortgagor, who is entitled to redeem, applies before filing his bill to the mortgagee for that purpose, and the latter refuses to allow him to redeem, the mortgagee will not only be deprived of costs, but may be compelled to pay costs to the complainant.
    This was an appeal from the decree of the equity court of the eighth circuit. Wells, assigned to Brockway a land contract, to secure the payment of $97 98. The assignment contained a condition that if Wells paid Brockway $25 on the first of February, 1821 and $72 98 on the 21st of November thereafter, the latter should re-assign the contract to *Wells, otherwise not; A part of the amount was paid within the specified time, but a part thereof remained unpaid. After various ineffectual negotiations and attempts to obtain payment of the amount due, Brockway sold the account to Berry, who afterwards took out a new contract in his own name from the Holland Land Company. Wells then filed his bill in this cause against Brockway and Berry, praying a redemption, and for general relief. The defendants having put in their auswers, and replications having been filed to the same, many witnesses were examined as to the value of the premises, and the various dealings and negotiations between the parties. The cause was heard on pleadings and proofs, and the circuit judge decreed a dismissal of the bill against the defendant Berry, without costs: and that Brockway should pay to the complainant $160, for the proceeds of the sale of the premises, over and above the balance due from the complainant to him of the original debt. He also decreed costs against the defendant Brockway. From that decree the latter appealed to this court.

      F. M. Haight for the appellant.

      P. L. Tracy for the respondent.
   The Chancellor :—The assignment of the land contract in this case was given for the security of a debt and was therefore a mortgage. There does not appear to have been any agreement to receive it in full satisfaction of the debt at any time; and there can be no doubt of the right of the complainant to redeem. The assignment by way of mortgage in this case being of an interest in real estate, must be governed by the rules which are applicable to a mortgage of the legal estate. It is a mortgage of an equitable interest in the land mentioned in the contract. This court has jurisdiction in such a case to decree a redemption. Although there was probably in this case sufficient to put the other defendant on inquiry, if he did not actually know that this assignment was nothing but a mortgage, so as to authorize the complainant to claim a redemption against him, the circuit judge has thought otherwise and considered him a bona fide purchaser * without notice. There is no appeal from that part of the decree, and it cannot therefore be reviewed here. In such cases the equity of redemption instead of remaining an incumbrance on the land in the hands of the bona fide purchaser, attaches upon the money received by the mortgagee on the sale; (Whittick v. Kane, 1 Paige’s Rep. 202.) The decree in this case was therefore right in directing the payment of the balance received by the mortgagee on the sale of the land, over and above his debt, if the land could not be redeemed.

But the appellant contends that the equity court has erred in awarding costs against him on his bill for a redemption of the mortgage. As a general rule the complainant pays costs to the defendant on a bill to redeem, although he ultimately succeeds in obtaining the relief prayed for; but if he has been guilty of improper conduct, he will be deprived of his costs, and in some cases may even be compelled to pay costs; (Ditillin v. Gale, 7 Ves. 583; Morony v. O'Dea, 1 Ball & Beatty, 121, note.) If the mortgagor in this case had applied to Brockway for the surplus raised on the sale, over and above the amount due on this mortgage, and the latter had refused to account with him for it, I should have thought this decree right in not only refusing costs to the mortgagee, but also in charging him with the costs of the litigation; (Slee v. The Manhattan Company, 1 Paige’s Rep. 48.) But the complainant claimed a right to redeem the land in the hands of the assignee; and the principal part of the costs have been incurred on that account, and he has failed as to that part of the suit. The defendant Brockway does not appear to have acted fraudulently or in bad faith in selling the contract. He only mistook his legal and equitable rights, and that forms no ground for charging a mortgagee with costs on a bill to redeem.

So much of the decree as directs the appellant to pay costs to the respondent must be reversed, and the residue of the decree appealed from is affirmed; and neither party is to have costs as against the other, either in the court of equity, or in this court. If the appellant does not pay the amount decreed within twenty days, the respondent is to be at liberty to take out execution therefor in this court.


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    *Mumford and others v. Murray.—Blatchford and others v. Murray and others.
    October 6th.
    The wife’s equity to a support for herself and children out of her estate, which has not been reduced into possession by the husband, is paramount to the rights of the assignee of the husband under the insolvent act.
    Where the property of the wife is in the hands of an officer of the Court oi Chancery, she may apply by petition for a reasonable allowance out of such estate.
    But if she has appropriated to her own use property which belonged to the assignee, the amount thereof must be refunded to him out of her estate.
    Caroline M. Dunscomb, one of the defendants in the last suit, and wife of one of the complainants in the first suit, who is also a defendant in the last cause, presented her petition setting forth that a share of the fund in the hands of the receiver belonged to her as one of the children of J. P. Mumford deceased. She further stated that her husband was insolvent, and that his property had been attached under the act for relief against absconding debtors, and trustees had been appointed; that she was left together with six infant children wholly unprovided for. And she prayed that the receiver might be directed to pay over her share of the estate for her separate use, for the support of herself and children. The petition was served on all the parties in the cause, and upon the trustees of her husband’s estate. The trustees objected to the proceeding by petition, as they had not been made parties to the suit. They also put in an affidavit stating that a part of the husband’s property had been removed and secreted after he absconded, and that they were informed it had been appropriated by the wife to her own use.

      R. M. Blatchford for the petitioner.
    J. Oswold Grim for the trustees.
   The Chancellor :—The wife is entitled to a reasonable amount out of the property for her support. That amount must also include the necessary provision for her children. *In Steinmitz v. Halthen, (1 Glyn. & Jam. 64,) it was holden that the wife’s equity to a support out of her separate property, for herself and children, attached the moment a bill was filed in respect to it; so that if she died before payment, her children were entitled to a support out of it, to the exclusion of the assignees of the husband, who had been declared a bankrupt.

I see no necessity for proceeding by bill in this case. The fund is in the hands of an officer of the court. And if the wife’s equity did not attach thereon the court would order the receiver to pay it over to the assignees on their petition. The right must be reciprocal, unless there are sufficient grounds laid to authorize the court to direct a more formal proceeding by bill. The rights of both parties in this case may be equally well protected by a reference.

If the wife asks equity here she must do equity; and if she has in her possession, or has appropriated to her use, or the support of herself or her children, any property which belonged to her husband at the time the attachment was taken out against him, she must surrender such property or refund the value thereof to the assignees before she is entitled to the fund in court.

There must be a reference to a master to ascertain what will be a reasonable amount to be allowed the petitioner out of her share of the property, for the support of herself and children. He must also inquire and report what property, which belonged to the husband at the time the attachment issued, is now in the hands of the wife, or has been appropriated by her for the support of herself and children, or otherwise since that time; with leave to the trustees to examine her on oath before the master in relation thereto. All other questions are reserved until the coming in of the master’s report.


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    *Dunkin v. Vandenbergh.
    October 6th.
    A party against whom a decree for costs has been made will not be permitted to off set against such costs a decree or judgment in his favor in relation to a distinct matter, to the prejudice of the solicitor’s lien.

    But where different claims arise in the course of the same suit, or in relation to the same matter, they may be arranged and off set agreeable to equity without reference to the lien of the solicitor.
    The solicitor’s lien is only on the clear balance due to his client after all the equities arising out of that particular litigation are settled.

    The Court of Chancery will not on motion allow a debt which is not ascertained by judgment or decree to be off set against a decree for costs, to the prejudice of the solicitor’s lien: although the validity of the debt is admitted by the client.
    The power of the Court of Chancery to off set one judgment or decree against another, on motion, is the same as that of the common law courts. But on a bill filed for an off set, the jurisdiction of the Court of Chancery is more extensive than that of the common law courts.
    The complainant filed a bill in this cause to set aside an assignment made by the defendant, who was insolvent, as fraudulent. After the defendant had put in answer, the bill was dismissed, with costs for want of prosecution. The complainant then applied to set off a note which he held against the defendant, and which by his answer he had admitted to be due, against the costs taxed in this suit. The application was resisted by the solicitor for the defendant, upon the grounds that the whole costs belonged to him; that the defendant was unable to pay him any thing, and that he had himself been obliged to pay the costs of an insufficient answer to the adverse party, to enable his client to make a proper defence to this suit.

      J. S. Van Rensselaer for the complainant:
    The attorney’s or solicitor’s lien for costs is subject to all the equities existing between the parties as to set-off. The bill in this calise was dismissed upon the motion of the complainant, with costs. A set-off is allowed against the costs of the opposite attorney in all cases except where the damages are unliquidated. The solicitor’s lien for costs only extends to the clear balance resulting from the equity between the parties. *In England the rule as to set-off against an attorney’s costs in the King’s Bench is different from that in the Common Pleas. The Court of Chancery there has adopted the Common Pleas’ rule. (Vaughan v. Davies, 2 H. Black. 440.) In Gurish v. Donvan, (2 Atk. 166,) costs of the solicitor of one of the parties was set off against a judgment for damages and costs recovered at law against his clients. In Taylor v. Popham, (15 Ves. 79,) Lord Eldon held, that where different demands arise in the same cause, the costs shall be adjusted as the equities between the parties require, without considering the solicitor’s lien. (Ex parte Rhodes, 15 Ves. 541. The Supreme Court have adopted the rule of the English Common Pleas. Potter v. Lane, 8 John. R. 357.) In Chancery a set-off is matter of right. (Simpson v. Hart, 14 John. 68.) In the case of The Mohawk Bank v. Burrows, (6 John. Ch. R. 317,) Ch. Kent said, that if the debt of the defendant to the complainant had been admitted, it would have been set off against the costs of the defendant’s solicitor. In this case he debt of the defendant is admitted by him in his answer.

      C. Y. Lansing, contra,
    cited 2 Cowen’s Rep. 174; Mohawk Bank v. Burrows, (6 John. Ch. R. 317.) He contended he had brought himself within the principle laid down in 6 John. Ch. R. 317; that the attorney’s or solicitor’s lien for costs recovered, will not be suspended, or satisfaction delayed, until an unliquidated claim of the opposite party can be ascertained and a balance finally struck between the parties. The debt of the defendant in this case had not been ascertained and settled by a judgment. It remained unliquidated. And to allow it to be set off against the costs of the defendant’s solicitor,would be going beyond all the cases cited on the other side.

       See Gridley v. Garrison, 4 Paige, 647; but see Nicholl v. Nicholl, 16 Wen. 446.

        Pope v. Armstrong, 3 Smeed & Marshall, 214.

   The Chancellor :—On a bill filed in this court for a set-off, the powers of this court are more extensive than those of courts of common law where a set-off is claimed there in the ordinary progress of a suit. But on applications of this kind I apprehend the ground on which relief is granted is the same in all courts. It is the equitable control which they *are authorized to exercise over the parties and proceedings in causes before such courts, to prevent injustice. Hence one court will not order a party against whom a judgment has been obtained, to deduct the amount from a judgment which he has obtained against the adverse party in another court, but will leave such adverse party to apply to the court where the judgment against himself had been obtained, and which court alone has power to control the proceedings on that judgment. (Brewerton v. Harris and Harris, 1 John. Rep. 144; Lessee of Underwood v. Courtown, Irish Term. Rep. 427.) I am not aware of any case in which a set-off has been allowed on motion, either in this court or in a court of law, except where the demand claimed to be set off against the judgment or decree of the adverse party was judicially determined or settled by the order, judgment or decree of some court of competent jurisdiction. The demand which the complainant claims to off set against this decree for costs, is nothing but a promissory note on which no judgment or decree has passed. Although the answer admits the defendant’s indebtedness, which might have been conclusive against him in this suit, this cause is now at .an end. In the suit now pending in the Supreme Court on the note, the defendant will still be at liberty to plead the illegality of the consideration set up in his affidavit on this motion. Independent of the solicitor’s lien, I think the note is not a proper subject of set off against this decree for costs.

But as the other question is now before me, I will dispose of that also. It has repeatedly been decided, in the Supreme Court chat the attorney’s lien will prevent one judgment from being set off against another in such a manner as to deprive him of his costs. (Cole v. Grant, 2 Caines’ Rep. 105; Devoy v. Boyer, 3 John. Rep. 247.) In this respect that court has followed the rule of the King’s Bench in England, which differs from that of the Common Pleas. But I should regret to see the same difference existing between the practice of the Court of Chancery and the Supreme Court here. The rule should be the same in all courts, as there is no difference in principle. It is supposed by the counsel for the complainant from an expression of the Supreme Court in *Porter v. Lane, (8 John. R. 357,) that the judges intended to adopt the practice of the Common Pleas in England in opposition to that of the King’s Bench. But on examination it will be found that case did not depend on the question upon which the two courts in England differ. That question is whether the costs in different and independent suits can be off set against each other to the exclusion of the attorney’s lien. As to that the practice of the English Common Pleas differs from that of all other courts, and is in direct opposition to the decisions of the Supreme Court in Cole v. Grant, and Devoy v. Boyer, before referred to. But the question which arose in Protter v. Lane, was whether the lien of the attorney could interfere with the equitable rights of the parties in the same suit or matter. In this respect the practice adopted by the Supreme Court is in conformity to that of the King’s Bench in England, as well as to that of the Common Pleas. (Howell v. Harding, 8 East’s Rep. 362.) The same rule also prevails both in the English and Irish Courts of Chancery. In Shine v. Gough, (2 Ball & Beatty, 33,) Lord Maaners adopts the rule laid down in the case of Taylor v. Popham, (15 Ves. 79.) In that case Lord Eldon says, “ where different demands arise in a cause, the costs should be arranged as the equities between the parties require, without considering the solicitor.” And in the case of Bryant, (1 Mad. Rep. 49; 2 Rose’s Cas. 237, S. C.,) the party in whose favor the costs of a petition was granted, was not perm^e¿ to reieaSb them to the prejudice of the solicitor’s lien, though the consideration of such release was the discharge of a debt due to the adverse party, before such costs accrued. And surely if the party could not voluntarily release them upon such a consideration, he ought not to be permitted to do the same thing indirectly by confessing a judgment for that debt and having the same off set.

The question in all these cases is, what is equitable and just between the parties and the attorney'or solicitor? Where different claims arise in the course of the same suit, or in relation to the same matter, it is undoubtedly equitable and just that these equities should be arranged between the parties *without reference to the solicitor’s or attorney’s lien. His lien is only on the clear balance due to his client after all these equities are settled. But when other claims, arising out of different transactions and which could not have been" a legal or equitable set-off in that suit, exist between the parties, the court ought not to divest the lien of the attorney or solicitor which has already attached on the amount recovered for the costs of that particular litigation. When a party applies to the equity of the court to prevent the solicitor from exercising his legal right to collect his .costs, the equity of the solicitor to have those costs should be taken into consideration. When the solicitor has been at the labor and expense of prosecuting or defending a suit, it is equitable and just that his costs should be paid out of the result of that litigation. If the equities of the parties are equal they should be left to the exercise of their legal rights. If the solicitor can collect his costs by execntion the court will not permit his client to interfere and deprive him of his remedy. But if he is obliged to resort to a suit in the name of his client, the adverse party may avail himself of any proper subject of off-set which existed previous to the time of the solicitor’s lien. But a demand acquired after that time cannot be off set either at law, or by an application to the equitable powers of a court on motion.

In the case of The Mohawk Bank v. Burrows, (6 John. Ch. Rep. 317,) although the decision was against the application for a set-off, yet the reasoning of Chancellor Kent is undoubtedly in opposition to the opinion above expressed. He supposes the doctrine of the Supreme Court to be in accordance with the practice of the English Common Pleas; and he founds that opinion upon the loose expression in Porter v. Lane, which I have already shown applies to a different question. He has evidently overlooked the two cases of Cole v. Grant and Devoy v. Boyer, which were decided while he presided in that court, in both of which the decisions are in opposition to the practice of the Common Pleas, and in exact conformity to the rule of the Court of King’s Bench. The case of Taylor v. Popham, cited by Chancellor Kent, was not a question of set-off, but a question between the solicitor of a *simple contract creditor and a bond creditor, whether his cost in a suit against the estate should be paid in preference to the debts due by specialty from the client, for which the estate was also liable. The solicitor petitioned to have his costs paid out of the funds recovered, and it was granted; but on a rehearing Lord Eldon decided that the bond creditor had a prior equity to be paid out of the assets and disallowed the claim of the solicitor. The costs in the suit by the simple contract creditor against the estate were not decreed against any one; but if the fund had eventually belonged to him, the solicitor would have been permitted to retain the costs out of the amount recovered. In the subsequent suits, against his client and. the estate of his father, it appeared the fund did not belong to the client "but to the executors of Lord Holland who were the specialty creditors. The whole fund was therefore disposed of as a subject of relief in the last suit. The reasoning of Lord Eldon must be understood in reference to such a state of facts, and is not inconsistent with the opinion expressed by him in Hall v. Ody, when he was chief justice of the Common Pleas. Mr. Justice Buller must have been misinformed as to the decision mentioned by him in Vaughan v. Davies, in 1795. There is no such case reported, and the practice of that court was understood to be different by the Lord Chancellor as late as 1806. In the first report of the case of Taylor v. Popham, (13 Ves. 61,) Lord Erskine says, “ The lien of an attorney for his costs, as between him .and his client, cannot be disputed. If an attorney employed to sue, recovers 5007, and is entitled to tax the costs, and the client being a debtor to the defendant in that action to a greater amount than the sum recovered, did not plead a set-off, but afterwards brings an action and recovers a greater sum, that would not deprive the defendant in that action of his right to costs in the other. The attorney undertakes the suit upon the personal credit of the client, which has a good effect in preventing vexatious suits; as the attorney, unless he sees a probability of success, will not encourage the client. But by the result that the client is entitled to costs, it is admitted they are the costs not of the< client but of the attorney; the effect of his lien, *of which he is not to be deprived, unless satisfied by other means.” This principle was not intended to be shaken in the subsequent decision of Lord Eldon. Lord Erskine carried the principle still further, and gave the solicitor a lien upon the fund to the exclusion of a prior lien which existed in favor of the specialty creditor. It was this part of the opinion of Lord Erskine which was subsequently found to be wrong. In the subsequent case, Ex parte Rhodes, (15 Ves. 539,) it is evident Lord Eldon did not intend to carry, the principle any further than it is carried in Porter v. Lane, and in Taylor v. Popham; for he refers to the form of proceedings in Chancery which is always to regulate the various claims between the parties, both as to damages and costs, so as to make a decree only for the net balance which is the result of equity between the parties in relation to that suit or matter. But when a final decree has been made giving costs against a party on which the solicitor’s lien has attached, there is no form of proceedings, neither have I been able to find any case, either in this court or in the English or Irish courts of Chancery, where the party against whom the decree was made, has been permitted to off set a judgment for debt or costs in relation to a distinct matter, either in the same or any other court, to the prejudice of the solicitor’s lien. In a recent suit in the English Court of Chancery, the Vice-Chancellor refused to direct the costs of a suit in that court for which the complainant was liable, to be off set against the costs for which there was a judgment in his favor in the Court of King’s Bench. He refers to the opinion of Lord Eldon, in Taylor v. Popham, but says “that case is not an authority for setting off against each other the costs of different causes in this court; and still less for setting off costs here against costs in the King’s Bench, when it is clear that court would not permit the set off of costs there against the costs here.” (Wright v. Mudie, 1 Sim. and Stuart, 266.)

The application for a set-off in this case must be denied with costs.


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    *Dunham v. Jackson.
    October 7th.
    If the party against whom a final decree is made intends to remove beyond the jurisdiction of the court before the decree can be enforced by execution, a ne exeat will be granted.
    A ne exeat is in the nature of equitable bail, and may be applied for in any stage of the suit.
    In" this cause the bill of the complainant had been dismissed with costs; and the complainant had suspended the proceedings to collect the costs by an appeal to the Court of Error.

      L. H. Palmer,

    upon an affidavit and petition stating that the costs were large, and that the complainant intended removing to Florida before the appeal could be determined, moved that a ne exeat issue, unless the complainant gave security to abide the decree of this court and of the Court of Errors.

      H. Bleecker, contra,
    read an affidavit of the complainant, which stated that she was worth $25,000 over and above all debts, and that she did not intend to remove to Florida until February next.
   The Chancellor :—The object of the writ of ne exeat is to obtain equitable bail, and may be applied for in any stage of the suit. The complainant intends to leave the state before the appeal can be determined. The defendant is not obliged to follow her to Florida to obtain satisfaction of the costs decreed. In Stewart v. Stewart, (1 Ball & Beatty, 73,) a ne exeat was granted against a-complainant who was about to leave the country before the decree for costs could be made effectual against him.

The ne exeat must be granted in this case unless the complainant gives security to abide the final decree.


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    *Case and Wife v. Abeel and others.
    The master’s certificate as to the insufficiency of an examination of a party on interrogatories, does not require an order of confirmation.
    If the master’s certificate is not excepted to within eight days after notice of the filing thereof it becomes absolute of course.
    The practice in relation to exceptions to answers for insufficiency must be adopted and pursued, as far as the same is applicable to exceptions to the examination of a party.
    If the examination is. reported insufficient, the master may allow new interrogatories to be added by the adverse party, and the exceptions and new interrogatories must be answered together.

      November 4th.
    If the examination is certified by the master to be sufficient, the adverse party cannot re-examine the defendant to the same point without the permission of the court.
    On taking the account as directed by the decree in this cause, (ante, 393,) (x. B. Abeel, one of the defendants, was examined on interrogatories before the master. The ex- ' animation was excepted to for insufficiency, and upon the reference two out of five of the exceptions were allowed. The complainants thereupon applied for a confirmation of the report, and for other directions as to the practice to be pursued to compel a further examination. They also asked leave to add new interrogatories, and that the defendant might be required to put in his further examination to the exceptions and additional interrogatories together.

      J. Rhoades for the complainants.

      H. Bleecker for the defendants.
   The Chancellor :—The certificate of the master as to the insufficiency of the examination does not require an order of confirmation. In this respect it is like the report of the master as to the sufficiency of an answer. The practice in relation to exceptions to an answer for insufficiency must be adopted and pursued in these cases, so far as the same is applicable. On filing the master’s certificate, and notice thereof, if the defendant does not except to the same within eight days, the certificate will become absolute. And on filing "-an affidavit of that fact the complainant may enter an order of course that the defendant put in his further examination, and pay the costs of the exceptions and the proceedings thereon within such time as the master may prescribe, or that an attachment issue against him. On filing the certificate of the master showing his default, the complainant may have an order of course for an attachment. If the major part of the exceptions are not allowed, the complainant will not be entitled to costs. In case the master certifies that the examination is insufficient, the complainant may add new interrogatories to be approved of by the master if he shall deem such further interrogatories necessary; and the order will then be that he put in his further examination to the exceptions and the new interrogatories together within such time as the master may direct. But if the examination is certified by the master to be sufficient, the complainant will not be permitted to call for a re-examination of the defendant to the same point, on new interrogatories, without special permission of the court on cause shown, and upon notice of the application to the adverse party.

In this case the complainants are to be at liberty to exhibit new interrogatories to be approved of by the master, and the defendant. Gr. B. Abeel must put in his examination to the exceptions and further interrogatories within such time as the master may prescribe, or an attachment must issue to compel the same. A majority of the exceptions not having been allowed, the complainants are not entitled to the costs of the reference.


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    Adams v. Beekman and others.
    Where A. by his will devised the use of his farm to his son and nephew for three years, and directed his executors at the expiration of the term to sell the farm and divide the proceeds among his five children; and also declared in his will, that if any one of his children died before him, leaving no children, or should die after his decease, leaving no children, without having disposed of his or her share, that the share of such child should go to the survivors; but if any of the testator’s children should die leaving-children, then such children were to have the share of their parent in the *same manner as such parent if living would have taken the same; and the son died within the three years leaving children; it was held that the children took under the will and not as heirs of their father, and that then-mother was not entitled to dower in the farm, and that the creditors of the son had no claim upon that share of the estate for the payment of their debts.

      November 4th.
    The death of the son before the expiration of the three years and before the executors were authorized to sell, divested his interest, and the executory Kmitation over to his children immediately took effect.
    Where there is a bequest in remainder after the determination of a particular estate, with an executory limitation over in case of the death of the legatee, the legatee takes only a contingent interest, which will be divested if he dies during the continuance of the particular estate, and the limitation over will take effect.
    William Adams by his will devised the use of his farm to his son, the husband of the complainant, and to his nephew for the term of three years. He directed his executors, at the expiration of that time and as soon thereafter as could conveniently be done, to sell the farm and divide the avails among his five children. By a subsequent clause in the will it was provided that if any of his children died before the testator, leaving no children, the share of the child so dying should go to the survivors; and also in case any of them should die after his (the testator’s) decease leaving no children, and not having disposed of his or her share of the estate, the same should likewise go to the survivors; but in case any of the testator’s children died leaving children, then such children were to have and take the share of their parent in the same manner as such parent, if living, would have taken the same. The son died within the three years, leaving the complainant, his widow, and the infant defendants, his children. The widow and nephew continued to occupy the farm together until the expiration of the three years, since which time a part thereof has been sold by the executors according to the directions of the will. The complainant administered on the estate of her deceased husband and commenced this suit against the executors of her father in law and her infant children, claiming dower in one-fifth of the proceeds of the sale, and that a part of that fifth should be applied to the payment of the debts due from her deceased husband. The executors suffered the bill to be taken as confessed *against them, and the children put in a general answer by their guardian.
   The Chancellor:—The guardian ad litem has not brought the rights of these infant defendants properly before the court, but there is sufficient on the papers to enable me to see that the complainant’s claim cannot be sustained. The one-fifth of the proceeds of the sale of the farm is not given by the will absolutely to the son. Although the testator directs the farm to be sold at the expiration of the three years and gives the proceeds to his five children forever, it is evident from the subsequent clause that he contemplated the event which has actually happened, to wit, the death of some of his children before the expiration of the three years, or before the proceeds of the sale were reduced into possession, or disposed of by them. By the fifth clause of the will the testator provided for such a contingency and has directed that the share of the legatee so dying should go to his children if he has any, and if not it is to go to the surviving children of the testator.

From the case of Hutchin v. Mannington, (1 Ves. jun. 366,) it would seem that the expressions in the fifth clause of this will were not sufficient to carry the limitation over to the children of the son if he had lived until the expiration of the term of three years. But that decision was seriously questioned by Lord Eldon in Stilwell v. Bernard, (6 Ves. 536,) and in Gaskell v. Harman, (11 Ves. 497,) although it is not expressly overruled. That question is not material in the determination of this case. Where there is a bequest in remainder after the determination of a particular estate, with an executory limitation over in case of the death of the legatee, such dying is to be applied to the time when the remainder takes effect in possession, and not to the time of the death of the testator. The legatee takes but a contingent interest which will be vested if he dies during the continuance of the particular estate, and the limitation over will take effect. (Harvey v. McLaughlin, 1 Price’s Rep. 264; Galland v. Leonard, 1 Swanst. 161.) In this case by the death of the' son during the term, and before the executors were authorized *to sell the farm and divide the proceeds, his interest was divested, and the executory limitation over to his" children took effect. They are entitled to the share of the proceeds which would have belonged to him if living. They do not take as heirs of their father but as contingent legatees under the will. Their mother is not entitled to any part thereof, either as dower, or under the statute of distributions; neither can it be subjected to the claims of the creditors of the estate of their father.

I regret to be compelled to say the interest of these infant defendants has been wholly neglected by those whose duty it was to protect their rights. The executors instead of submitting the construction of this will to the court, have Buffered the bill, which did not contain that part of the will on which the rights of the infants depended, to be taken as confessed; and the guardian appointed by the court to conduct the defence of the infants, instead of attending to it has entrusted it to a solicitor whose name appears to the complainant’s bill as her counsel, and who does not even appear at the hearing to submit the facts in the case to the consideration of the court. If another such case occurs I shall consider it my duty to inquire who is the guardian ad litem. The complainant’s bill must be dismissed, but as the guardian has wholly neglected his duty he has no claim for costs, even as against her.

       See Home v. Pillans, 2 My. & K. 15.

       See Dunham v. Osborn, post, note.


text:
    Dunham v. Osborn and others.
    To entitle the wife to dower, the husband must have been seized during the coverture of a present freehold as well as of an estate of inheritance in the premises.

      November 8th.
    Seizin of a vested remainder is' not sufficient where the husband dies, or aliens his interest in the premises, during the continuance of the particular estate.

    Where lands descend to the son, on the death of the father, and dower is assigned to the mother, if the son dies during the life of the mother, his widow can only be endowed of the remaining two-thirds.
    But if the lands are conveyed to the son by the father, the widow of the son will be entitled to dower in the other third also after the death of the mother.
    *Where the estate has been sold on an execution against the husband, who afterwards died leaving a widow entitled to dower, the widow of the purchaser will be entitled to dowér in the whole premises, subject to the dower right of the first widow in one-third thereof.
    A bill for partition was filed in this cause, and the only question between the parties was as to the extent of the dower right of the widow of D. Dunham in the premises. J. H. Maxwell was the former owner of the premises, and his right thereto was sold upon execution in his lifetime, and two-thirds thereof became vested in D. Dunham, and the other third in Osborn. D. Dunham died in the lifetime of Maxwell. Upon Maxwell’s death, his widow became entitled to dower in the premises; but it was insisted that the widow of Dunham was not entitled to dower therein, as there could not be two rights of dower in the same premises by the seizin of two successive owners.

      H. W. Warner for complainant.

      Jno. L. Graham, for defendant Osborn.

      Jas. L. Graham for Withers and wife.

      J. O. Grim for the other defendants.

       See 4 Kent, 39, 40; Ferne on Remainders, (5th ed.) 35, 36; Park on Dower, 61, 73; Green v. Putnam, 1 Barb. S. C. 500; Beardsley v. Beardsley, 5 id. 324; Reynolds v. Reynolds, 5 Paige, 161; Matter of Creiger, 1 Barb. Ch. 598.

   The Chancellor :—Maxwell having • been the sole owner during coverture, there can he no doubt of the right of his widow to dower in the whole premises, in value as they were at the time of the sale on the execution against her husband. (Hale v. James, 6 John. Ch. Rep. 258.) But it is insisted there cannot be two rights of dower in the same premises, and that the widow of D. Dunham must be wholly excluded. Two widows cannot be endowed of the whole estate at the same time; and if the widow of the person last seized is endowed, it must be of the remainder of the estate only, subject to the dower of the widow of the person first seized. To entitle the wife to dower, the-husband must be seized either in fact or in law of a present freehold in the premises as well as of an estate of inheritance. His seizin of a vested remainder is not sufficient, if he dies or aliens his interest in the premises during the continuance of the particular' *estate. (Eldridge v. Forrestal & Wife, 7 Mass. R. 253; Shoemaker v. Walker, 2 Serg. & Rawl. 554.) Hence if the father die, and the land descends to his son and heir, subject to the dower of the mother, and dower is assigned to her in the premises, and the son dies during the continuance of her estate, the widow of the son will be entitled to dower in the remaining two-thirds; but will not be entitled to dower in the reversion of that part which was assigned to the mother as tenant in dower. As to that part, the moment the mother is endowed, her seizin relates back to the death of the husband, and is considered a continuance of his seizin, so that there never was any seizin in the son. But the case is different where the father conveys to his son. By the conveyance, the son becomes seized of the whole premises, subject to the dower right of his mother if she survives the grantor; and the wife of the grantee is entitled to dower in the whole subject to the same right. The maxim dos de dotepeti non debet does not apply to such a case. (Perk., sec. 315; Coke’s Litt. 31 a, b; Pari’s case, 4 Coke’s Rep. 122; Watkins, ch. 1, sect. 3, p. 74.) In this case, the sale of Maxwell’s estate, under the judgment and execution against him, gave a present seizin of an estate of inheritance to the purchasers, subject to the life estate of Mrs. Maxwell if she survived her husband; and the widow of D. Dunham is entitled to dower in his share of the premises. The widow of Maxwell is entitled to have assigned for her dower one-third of the premises, and Mrs. Dunham will be entitled to dower in two-thirds of the reversion of that third if she survives Mrs. Maxwell. She is also entitled to dower in two-thirds of the other two-thirds of the premises from the present time. If the property is sold under'the decree in this cause, the interest of each in the purchase-money must be estimated upon the same principles ; and if the value of Mrs. Dunham’s life is worth the same, or less than that of Mrs. Maxwell, the dower right of Mrs. Dunham in the first third is worth nothing.


text:
    *Edmeston and Riddle, Executors, &c. v. Lyde and Walton.
    A creditor whose execution at law has been returned unsatisfied, may file a bill to reach the equitable estate of the defendants, either in his own name and for his own benefit; or he may join with other creditors standing in the same situation with himself; or he may file a bill in behalf of himself and all others, being judgment creditors, whose executions have been returned unsatisfied and who may choose to come in under the decree and contribute to the expenses of the suit.
    A judgment creditor does not obtain a specific lien upon the equitable estate of the debtor by the return of an execution unsatisfied, but by the commencement of a suit in equity after the execution has been so returned.
    An assignment by the defendant of his property after the filing the bill in this court, will not divest the lien of the judgment creditor.
    Where property has been fraudulently assigned by the debtor, so that he has no legal or equitable rights as against the assignee, it will be necessary to make the assignee a party to enable the court to reach the property in his hands.
    But where the debtor still retains the legal or equitable interest in the property, such interest may be conveyed to the complainant or transferred to a receiver under the decree of the court, without making the trustee of the defendant a party.

      Nov. 16th.
    The debts, choses in action and other equitable rights of the defendant may be assigned or sold under the decree of this court, and the purchaser vil* be protected both in equity and at law.
    Every species of property belonging to a debtor may be reached and applied to the satisfaction of his debts.
    The complainants recovered judgment against the defendants in the Supreme Court for $3,945 59, and issued a fieri facias thereon to the sheriff of the city and county of New York, where the defendants were arrested and where they still resided. The sheriff having returned the execution unsatisfied, the complainants filed their bill in this cause for a discovery, and to obtain satisfaction of their judgment out of the equitable estate and choses in action of the defendants, which could not be reached by the execution at law. By the answer, the facts stated in the bill were admitted. The defendants also admitted that .they were insolvent and unable to pay their debts; that certain real estate of theirs was sold under an execution in their favor and bid in by W. G-. *Buckner for their benefit, subject to the lien of such sums as he should advance to them from time to time, for which they held his written receipt, or acknowledgment of the trust; and that he had advanced to them $1,400 on account thereof. The defendants also set out in their answer an account of several choses in action of small or doubtful value, which belonged to them at the time the complainants’ bill was filed. They also alleged that there were other judgment creditors whose judgments were prior to that of the complainants, and that such creditors ought to be made parties to the suit. The cause was heard on bill and answer ; and the questions raised on the hearing were, whether the other judgment creditors and Buckner ought to have been made parties; and as to the nature of the relief to which the complainants were entitled.

      R. Sedgwick for the complainants.

      G. Griffin for the defendants.
   The Chancellor :—The first question in this case is as to the rights of the other judgment creditors of the defendants, and whether they are necessary parties. It might be sufficient in this case to say they do not stand in the same right with the complainants, as it does not appear by the answer that executions in those causes have been actually returned unsatisfied; which was necessary to give them any right to come into this court for relief; (Beck v. Burdett, 1 Paige’s R. 305.) But it may be useful to inquire whether they would be necessary parties, even if that fact was distinctly alleged in the answer. I have once had occasion to examine this question elsewhere, and the conclusion to which I arrived was, that the creditor whose execution at law was returned unsatisfied might file a bill to reach the equitable estate of the defendants, either in his own name and for his own benefit, or might join with others standing in the same situation in a joint suit for their joint benefit, in proportion to the amount due to each, as in the case of McDermott and others v. Strong, (4 John. Ch. R. 687,) or that he might file a bill, in the usual way, in behalf of himself and all others standing in the same situation, as judgment creditors whose executions *hadbeen returned unsatisfied, and who might choose to come in under the decree and contribute to the expenses of the suit. I can see no reasonable objection to either mode of proceeding. The latter at the first blush may appear the most equitable, but the two first are much more likely to insure a vigilant prosecution of the suit. And on further examination it may seem unjust that the creditor who. has sustained all the risk and expense of bringing his suit to a successful termination, should in the end be obliged to divide the avails thereof with those who have slept upon their rights, or who have intentionally kept back that they might profit by his exertions, when there could ho longer be any risk in becoming parties to the suit.

The case of McDermott and others v. Strong, does not sanction the idea that a party obtains any specific lien upon the equitable estate of the debtor by the return of an execution unsatisfied. But by that act he puts himself in a situation to obtain a specific lien by the commencement of a suit here. In that case the complainant’s executions had been returned unsatisfied, and their suit in this court had been pending several months before the debtor conveyed his property to the defendants, as his assignees under the insolvent act; and the complainants had also given notice to the original trustee that they intended to seek satisfaction out of the trust fund, by the aid of this court. Under these circumstances the Chancellor, very properly, decided that by their legal diligence the complainants had obtained a specific lien upon the fund which entitled them to a preference. But it is evident he did not consider the issuing of the executions as giving any priority; for the execution of one of the complainants was issued in May and the other in June, yet the decree in that case provided that if the fund was not sufficient to satisfy both judgments, it should be distributed among the complainants rateably, in proportion to the amount due to each. Where the property is not levied on by the execution, or where, from its nature, it could not be reached by an execution at law, the return of the execution unsatisfied does not give to the creditor any specific lien. He must follow up his execution by the commencement of a suit here, before he *can obtain any claim to a priority. The creditor whose legal diligence has pursued the property into this court is entitled to a preference as the reward of Ms vigilance. In Edgell v. Haywood, (3 Atk. Rep. 357,) Lord Hardwicke says, “The court does not proceed in this case on the ground of a specific lien, but only considers it a part of the property of the debtor wMch the creditor cannot come at without the aid of this court. If, therefore, after judgment, or even after the fieri facias had been issued, the debtor had assigned this Iona fide, and for a valuable consideration, and without notice, it would be good, and prevail against tMs creditor. But after a bill brought and a lis pendens created as to this thing, such assignment could not prevail.” So in the case of Spader v. Davis, (5 John. Ch. Rep. 280,) the holder 'Of a fund under an assignment which was fraudulent in law, was held accountable only for so much thereof as remained in his hands at the time of the commencement of the suit in this court. If the creditor whose execution is first returned unsatisfied pursues the race of legal diligence, by the commencement of a suit here, he will obtain the reward of his vigilance ; but if he abandons the pursuit, or lingers on the way, before he has obtained a specific lien, he has no right to complain if another creditor obtains a preference by superior vigilance. The other judgment creditors were not necessary parties and the complainants are entitled to a preference in payment out of the equitable assets which belonged to the defendants at the time of the commencement of this suit.

Neither was Buckner a necessary party. Where the property has been fraudulently assigned by the debtor, so that he has no legal or equitable rights as against the assignee, it will be necessary to make the assignee a party, to enable the court to reach the property in his hands. A decree against the fraudulent assignor would not in that case give any right to the property in the hands of the assignee. But where the debtor still retains the legal or equitable interest in the property, such interest may be conveyed to the complainant, or transferred to a receiver under'the decree or order of this court; who can call upon the debtor or trustee of the defendant in the same manner as the defendant himself might have done previous to the filing of the bill. As *there is no allegation of fraud as to Buckner, if he was made a defendant he would be entitled to the advances which he has made, together with his costs. If all the right of the defendants is sold under a decree in this suit, the purchaser will be entitled to an assignment of the land from Buckner, on paying the amount due. And if he should unreasonably refuse to permit the purchaser to redeem, he might subject himself to the costs of a suit instituted for that purpose. The debts, choses in action and other equitable rights of the defendants may be assigned or sold, under the decree of this court, so as to vest an equitable interest in the purchaser, which will be protected both here and at law. The Court of Exchequer in England has gone so far as to compel the purchaser of a debt due to a bankrupt’s estate to perform his contract specifically. (Wright v. Bell, Daniels’ R. 95.) The principle being established that every species of property belonging to a debtor may be reached and applied to the satisfaction of his debts, the powers of this court are perfectly adequate to carry that principle into full effect. The only difficulty is in deciding which of the various powers of the court is best adapted to the end; which will be the most convenient, and least expensive to the parties. This must in a great measure depend upon the nature of the property to be reached. I shall not therefore for the present, undertake to lay down any general rules on the subject, except one which is perfectly obvious. If the property is of such a nature that its fair value may be obtained by a sale at auction, in the usual manner, that course should be resorted to as the most expeditious and least expensive.

The principal property in this case is an equitable right to certain real estate, subject to the payment of the advances made by Buckner thereon. If that is sufficient to satisfy the complainants’ debt and costs, no further proceedings will be necessary as to the other property of the defendants.

There must for the present be a decree declaring the rights of the complainants, and providing for the sale of that property, reserving further directions.

The following decree was entered:

*“ This cause having been brought on to be heard on bill and answer, and on hearing Mr. R. Sedgwick of counsel for the complainants and Mr. GL Griffin of counsel for the defendants, and the Chancellor having duly considered the same, it is this day adjudged and declared, and this court by virtue of the power therein vested- doth adjudge and declare, that the complainants are entitled to the proceeds of all the choses in action, stocks, property, estate and effects of the defendants, either in law or equity, in possession, reversion or remainder, or held in trust for them or either of them, and which belonged to them or either of them, or in which they had any interest in law or equity at the time of the commencement of this suit; or to so much of the said proceeds as may be necessary to satisfy the amount due on their judgment against the defendants, in the pleadings in this cause -mentioned, with the lawful interest thereon, and their costs in this suit to be taxed: It is therefore ordered and decreed that the defendants be enjoined from collecting, receiving, disposing of or intermeddling with any of the said choses in action, stocks, property, estate or effects, or to the proceeds thereof, except so far as is necessary to preserve the same from waste or loss, until the amount of the said judgment with the interest and costs aforesaid is fully satisfied, or until the further order of this court. And it is further ordered and decreed, that all the right and interest of the said defendants, either in law or equity, to the lots or parcels of land, with the buildings therein mentioned or referred to in the receipt of William Groelet Buckner, mentioned and set forth in the defendants’ answer in the cause, together with all their right and claim against the said Buckner, for or on account of the said lots, Or of the said receipt, be sold at public vendue by or under the direction of one of the masters of this court, at the Merchants’ Exchange in the city of New York, the said master giving three weeks’ public notice of the time and place of such sale in one of the public newspapers in the city of New York, at least once in each week; and that previous to the said sale, the said master ascertain as near as may be the amount advanced by the said Buckner to the defendants on account of the said receipt; and that he have ^liberty to examine the defendants, or any witnesses on oath for that purpose, if he shall deem it necessary; that the sale be made at the risk of the purchaser, for cash, and that the complainants be at liberty to become purchasers on such sale; that the master execute a conveyance or assignment to the purchaser in such form as the master may think proper, and that the defendants, if required by the purchaser, join in the said conveyance or assignment as the master may direct; and that they be required to stipulate therein that the purchaser be at liberty to use their names, if he shall deem it necessary, in any suits or proceedings in relation to the subject matter of the said sale, he giving to them such indemnity against the costs of any such suit or proceedings as may be directed by this court previous to the commencement of any such suit or proceeding. And that the master pay to the complainants or their solicitor out of the proceeds of the said sale their costs of this suit to be taxed, and also the amount of their said judgment with lawful interest thereon, or so much as the purchase-money will pay of the same, and that the master take a receipt for the amount so paid and file the same with his report; and that he bring the surplus moneys arising from the said sale, if any there be, into court without delay, to abide the further order of the court. And it is further ordered, that if the moneys arising from the said sale are not sufficient to pay the amount due on the said judgment, with interest and costs as aforesaid, the said master ascertain the amount of such deficiency, and specify the same in his report; and that on the coming in and confirmation of the said report, the complainants may apply to this court for such further directions as may be necessary or proper in relation to such deficiency. And in the meantime either party is to be at liberty to apply to this court from time to time as they may be advised in relation to the said property or effects of the defendants, or the preservation or disposition thereof, or the collection of the debts.”

       2 R. S. (4th ed.) 353, sec. 42, and revisor’s note. To entitle the judgment creditor to the aid of Chancery to obtain satisfaction of his judgment against the defendant, out of properly not liable to execution, he must show not only an execution issued but returned nulla bona. McElwan v. Willis, 9 Wen. 548; Clarkson v. De Pyster, 3 Paige, 320. Therefore the plaintiff should state in his bill the issuing of the execution, the time when returnable, and the actual return of the sheriff thereon. Cassidy v. Meacham, d. 211. His right to relief is recognized only after he has exhausted all his legal remedies, without obtaining satisfaction. Child v. Brace, 4 id. 310. The judgment must be obtained in one of the courts of this state, or Chancery will not aid the judgment creditor. Tarbell v. Griggs, 3 Paige, 207. Nor does it lie at the suit of a county to,enforce the payment of county taxes, where the warrant for collection has been returned unsatisfied to the county treasurer, for want of property whereon to levy. Durant v. Supervisors of Albany Co., 26 Wen. 66. All persons against whom the judgment was rendered should be made parties to the bill. Child v. Brace, 4 Wen. 309.


text:
    *Massey and others v. Gillelan and others.
    Nov. 17th.
    Where the complainants became insolvent pending the suit, and assigned all their interest therein to a third person, the assignee was not permitted to proceed with the suit in their names without giving security for costs.

    G. C. Tboup presented the petition of the defendant Gillelan setting forth among other things that the complainants were insolvent, and that this suit was carried on for the benefit of the assignees to whom the subject matter of the controversy had been assigned; and praying that security for the costs might be "given by the complainants or the assignees. He cited Ketchum & Blake v. Clarke, (4 Johns. Rep. 484,) and Waring v. Baret, (2 Cowen’s Rep. 460.)

      S. A. Foot, for the complainants,
    insisted that by the answer of Gillelan sufficient was admitted to show the complainants must succeed in the suit, and for that reason Gillelan was not entitled to demand security for costs.

        Miller v. Franklin, 20 Wen. 630; Jordan v. Sherwood, 10 id. 622; Schoolcraft v. Lathrop, 5 Cow. 17. So he is liable, although an assignee oi only part of a demand. Bliss v. Otis, 1 Denio, 656; N. Y. Code sec. 321.

   The Chancellor :—The defendant is entitled to seenrity for costs. Although the parties for whose benefit the suit is now continued may be compelled to pay the costs of the subsequent proceedings, the remedy against them as to the costs already accrued is at least doubtful. They cannot however be permitted to continue the proceeding without giving sufficient security to cover the costs already incurred by the defendant, as well as those to which he may hereafter be subjected. There is nothing in the pleadings as they now stand which can enable me to determine what will be the final decision in the cause on the question of the costs. The decision on the motion to dissolve the injunction is not conclusive, as several matters of defence were set up which are not responsive to the bill, and for that reason were not taken into consideration on the decision of that motion.

The complainants or their assignees must within thirty days after service of a copy of the order, give security for the costs, by a bond in the penalty of $250, with two sufficient sureties to be approved of by the assistant register and filed in his office. And in default thereof the bill in this cause must be dismissed with costs.