text:
    Dunn vs. Dunn.
    The service of a subpoena upon a defendant in another state or country is irregular ; and no proceedings can be founded thereon unless the defendant voluntarily appears, or stipulates in writing to accept such service as regular.
    Where the court of chancery has jurisdiction of the subject matter of the suit, if a defendant who is beyond the limits of the state consents to waive the irregularity of the service of the subpoena, by a voluntary appearance, or by an agreement in writing to accept the service of the subpoena upon him as regular, he cannot afterwards object to the, regularity of proceedings against him, founded upon such service.
    Where a decree for a divorce was obtained by the husband upon a personal service of the subpoena upon his wife in the state of New-Jersey, and the complainant shortly after the decree married another woman who was ignorant of the irregularity in the obtaining of the divorce, the court permitted the defendant to come in and make a defence to the suit; but for the protection of the rights of the second wife, the decree was directed to remain in full force until the result of such litigation was known.
    This was an appeal from an order of the vice chancellor of the first circuit, setting aside a decree for a divorce, on the ground of irregularity. The parties resided in the city of New-York, but the subpoena was served upon the defendant at Newark, in the state of New-Jersey, during a temporary absence there for the purpose of lying-in. The subpoena was personally served, and the affidavit of service was in the usual form, without expressing that it was served out of the state. The bill was taken as confessed; and upon an affidavit of regularity made by the solicitor, and the affidavit of the complainant required by the 105th rule, the usual order was obtained referring it to a master to take proof of the adultery charged in the complainant’s bill: On the 15th of October, upon the master’s report of the adultery, a decree for a divorce was made by the vice chancellor; and a few days afterwards the complainant was married a second time. Subsequent to the marriage of the complainant, the defendant applied to the vice chancellor to set aside the decree, on the ground of irregularity ; and also on .the ground that there had been a condo-nation of the adultery, by cohabitation with her by the complainant after knowledge of the adultery, and both before and after the filing of the bill. The defendant also alleged that she had been deceived, by the" representations of the complainant that the suit for a divorce was merely colourable, and had been instituted in reference to the obtaining of money from the person with whom the alleged adultery had been committed. The affidavit of the complainant denied the alleged condonation. He also denied that he had deceived the defendant as to the proceedings in the cause. On the contrary, he swore that at the time of the. service of the subpoena on the defendant, he informed her he was about getting a divorce and that it was necessary that the subpoena should be served upon her; to which she replied she was willing he should get a divorce, and she was willing he should take any course if he would not expose her, or make the matter public. He also stated, in his affidavit, that'after the decree and before his second marriage, he obtained a copy thereof under the seal of the court, which he showed to the defendant and read the same to her; that she declared herself satisfied therewith, and said she was glad it had been obtained with so little trouble, and without making any noise. Several affidavits were read in favor of the application, and in opposition thereto, the details of which it is not necessary to state at length. But from the affidavits, it appeared that in March, 1832, the complainant was convicted and sentenced to the state prison for five years, and that he returned to Nexv-Yorlc, where his wife was, the beginning of July, 1833, and continued to live with her until the fifth of August. That he charged her with having become pregnant during his absence, and that she left him and went to Newark, where she was delivered of a child on the 27tb of the same mouth. The vice chancellor made an order to set aside the decree, and all the orders and proceedings consequent upon the service of the subpoena on the defendant in New-Jersey, with costs, upon the defendant’s causing her appearance to be entered in the cause. From this decree the complainant appealed to the chancellor.

      April 1.

      R. Mott, for the complainant,
    cited Van Hessen v. Shippenbeck, (1 Dick. 140 ;) S. C., (1 Ves. 395 ;) Scott v. Hough, (2 Brown’s Chan. Cas. 212, 213;) Bourke v. Ld. M’Donald, (2 Dick. 587;) Shaw v. Lindsay, (18 Ves. 491, 496;) Nichols v. Gwyn, (1 Sim. Rep. 389;) 2 Mad. Ch. Pr. 158 ; Hind’s Ch. Pr. 90; 1 Moulton’s Ch. Pr. 201, 227; 2 R. S. 175; 1 Hogan’s Rep. 79.

      J. Rhoades, for the defendant,
    referred to 2 R. S. 179, § 69, 70, and Idem, 187, § 133.
   The Chancellor.

There is no foundation whatever for the charge, which has been very improperly inserted in the petition in this cause, that the solicitor for the complainant wilfully concealed the fact, in the affidavit of regularity, that the subpoena was served out of the state. From information derived from some of the most respectable solicitors in the city of New-York, within the first two or three years after I came into this court, I know they had been in the habit of considering a personal service of a subpoena out of the state as regular. I have also reason to believe my immediate predecessor, tacitly at leat, sanctioned this practice; and that during his time many decrees were entered upon the usual affidavits of regularity, which affidavits were founded upon the service of subpoenas in the adjoining states. Moulton, in his practice, says, where the defendant resides abroad, service of a subpoena may be made personally. (1 Moult. Pr. 201.) He cites Scott v. Hough, (4 Bro. C. C. 213.) And a more recent writer on the practice of this court, whose work is now in the press, after an examination of the cases on this subject, seems to entertain the same opinion. (1 Hoffman’s Ch. Prac. 111, note 1.) Whatever, therefore, may be the ultimate decision of the court upon this question, there can be nó doubt that the solicitor, at the time he drew the affidavit of service, and when he made the affidavit of regularity, honestly believed a personal service of the subpoena at Newark was regular, and according to the settled practice of the court. And if he entertained that belief, the affidavit would, of course, be in the usual form, in which form the place of service is not mentioned.

On the other hand, notwithstanding the affidavit of Mrs. Plum, I cannot believe the solicitor for the defendant wilfully misread the affidavit of the 12th of November to her, for the purpose of making her swear to something which she did not believe to be true. It is much more charitable to suppose that neither she or the solicitor at'that time understood what the legal meaning of cohabitation was; and that they both understood that voluntary cohabitation meant nothing more than that they slept together in the same bed. There is the more reason to believe he made that mistake, inasmuch as his own client, in her petition, has sworn that-the complainant cohabited with her on the night of the 27th of August, which must have been within a few .hours of the birth of the child. I will not say that cohabitation under such circumstances is absolutely impossible ; but it is contrary to nature, and wholly improbable. I cannot therefore believe that the solicitor who drew the petition, or the defendant who swore to it, understood the term cohabitation according to its legal meaning as used in the statute. The defendant’s solicitor undoubtedly mistook his duty in taking an affidavit, to bé used in a cause in favor of his own client; and more particularly in administering an oath to the deponent out of the jurisdiction of the state in which he was authorized to act as a commissioner. I think, however, we ought to presume it was done through ignorance, and not from an intention to do what he knew to be wrong. I shall therefore proceed to inquire whether the service of the subpoena on the defendant in Newark was irregular.

• I am not aware'of any reported case in which this question has arisen and been decided, in this state. In England the practice does not appear to have been definitively settled; but from the reports it would seem the last decision was against the validity of a service in a foreign country. In Bourke v. Lord M’Donald, in 1781, (2 Dickens, 587,) the subpoena was served in Scotland, and the defendant afterwards coming to England, he was taken on an attachment for not appearing. The master of the rolls was clear as to the regularity of the service of the subpoena; but Lord Thurlow doubting, it stood over several times, and finally the process was dropped. A similar doubt as to the right to serve a subpoena in a foreign country had been expressed by Lord Somers in Cowslad v. Cely, in 1698. (Prec, in Ch. 83.) The case of Scott v. Hough, before Lord Thurlow, in 1793, (4 Bro. C. C. 213,) was disposed of on a mere ex parte application, and upon a misapprehension of what had been the opinion of Lord Thurlow in Bourke v. Lord M’Donald. In the case of Shaw v. Lindsay, as reported in the first edition of Vesey, (18 Vesey, jun. 496,) it appears that Lord Eldon, in 1812, made an order ex parte for an attachment with proclamations upon the service of a subpoena in Scotland; the complainant’s counsel citing Bourke v. Lord M’Donald and Scott v. Hough as authorities in support of the application. But in a note to a subsequent edition of Vesey, junior, it is said the order applied for in that case was finally refused, the cases cited proving to be misstated. In Nichols v. Gwyn, (1 Sim. R. 389,) an order for an attachment was made by Sir Anthony Hart, vice chancellor, upon a service of the subpoena in Paris, and upon an agreement of the defendant’s solicitor to appear. But in the case of Fernandez v. Corbin, (2 Sim. Rep. 544,) in which a similar order had been granted ex parte, upon the" service of a subpoena in Guernsy, Sir Lancelot Shadwell, vice chancellor, upon hearing of counsel for both parties, discharged the order. In Ireland, it is settled that the service of the subpoena abroad is not sufficient to authorize any proceedings thereon. (Creed v. Byrne, Hogan’s R. 79. Lord Alborough v. Paton, Id. 131.) But if the court of chancery has once acquired jurisdiction over the party by the service of original process within the jurisdiction of the court, or by his voluntary appearance, the decree, or any order in the cause, maybe served on the defendant out of the jurisdiction. {Idem, 1.)

The statute in this state having provided a mode of proceeding, where the subject matter of the suit is-within the jurisdiction of the court and the defendant is beypnd its jurisdiction, so that he cannot be served with process, there can be no good reason why this court should extend its arm beyond the bounds of the state, for the purpose of acquiring jurisdiction over the person of the defendant. It is also wrong in principle that a defendant should, by the process of any court, be compelled to appear and answer to a complainant in another state, or country, in order to protect himself from the consequences of a personal decree founded upon such process. And the supreme court has recently decided, that in the commencement of a suit by the service of a declaration, under the statute, the declaration is in the nature of process to compel the defendant to appear and answer, and cannot therefore be served upon the defendant out of the limits of the jurisdiction of the court in which the suit is to be prosecuted, (Ex parte Green v. Onondaga Common Pleas, 10 Wendell’s Rep. 592.) In all cases, however, where the court has jurisdiction over the subject matter of the suit, if the defendant who is beyond the limits of the state thinks proper to waive that objection by a voluntary appearance, or by consenting to accept as regular the service of process upon him at thé place where he resides or is found, he cannot afterwards object to the regularity of the proceedings against him, founded on such service. But such agreement, to be binding, must by the rules of the court, be in writing. The vice chancellor was therefore right, in this case, in deciding that the service of a subpoena upon the defendant, at Newark, was not sufficient to warrant the entry of an order to take the bill as confessed for the want of appearance. And in an ordinary case, it would be a matter of course to set aside the proceedings consequent upon such service.

There are, however, some very peculiar features in this case, which induce me to think.the manner in which the defendant has been admitted to come in and defend her rights, if she has any, is not that which is best calculated to do justice to all parties. The defendant does not state when she received notice that the divorce had been actually obtained. But the complainant swears that he showed it to her, under the seal of the court, on the 16th of October, and before his second marriage; and it appears that she took no steps to set aside the proceedings for nearly a month afterwards. This delay was probably not sufficient to make it the duty of the court to bar her of her rights, if she has any, by leaving the decree to stand as conclusive against her. But in the mean time the second wife has acquired rights, and from aught that appears, under an honest belief that the divorce of which the complainant had procured an exemplification, was perfectly regular to dissolve the matrimonial connection between the parties to the suit. If the defendant therefore had no legal defence to the suit at the time the decree was made, although there has been an irregularity, the defendant should not be permitted to bastardize the issue of the second marriage, if such there should be, or release the complainant from such second marriage, if he succeeds in obtaining a dissolution of the first. Such, however, may be the effect of setting aside the decree absolutely in the first instance. The defendant does not deny that she has been guilty of the adultery as charged in the bill. Probably, under the circumstances, she could not deny it in a petition which was to be sworn to by her. The whole defence, therefore, depends upon the question whether the complainant, with knowledge of the adultery, has forgiven the injury by sexual intercourse with her. The decree should then have been permitted to stand until it could be ascertained whether she had any valid defence. If it turned out that she had, the decree should tlxen have been vacated and the bill dismissed. If she had not, then the original decree should have been continued in full force, for the protection of the rights of the second wife.

The order of the vice chancellor must therefore be reversed. And there must be a reference to a master to inquire and report whether the defendant has been guilty of the adultery charged in the bill; and if she has, whether the complainant has forgiven the injury, either expressly or by a voluntary cohabitation with the defendant after knowledge of the act of adultery. And upon the coming in and confirmation of the master’s report, if it appears that no adultery has been com-milled, or that there has been a condonation thereof, then the decree is to be set aside, and the bill dismissed, with costs, including the costs of this appeal. Otherwise the decree is to be and remain in full force and effect from the time the same was entered, on the 15th of October, 1833. The reference is to be made to Master Clark, and the proceedings are to be remitted to the vice chancellor. A commission may issue, under the direction of the master, and upon his certificate, to examine witnesses in the state of New-Jersey, if he shall deem it necessary.

       See Atkinson’s Ch. Prac. 24, and 1 Malloy’s Rep. 240.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    N. Smith vs. P. Smith.
    In a suit for a divorce, on the ground of adultery, if the defendant relies upoii a condonation of the injury, or upon the adultery of the complainant, as a bar to the divorce, she must either insist upon that defence in her answer, or set it up by way of plea.
    Although the defendant, in her answer, denies the adultery charged in the bill, she may also insist that if any act of adultery has been committed by her, there has been a condonation or forgiveness of the offence; and she may also, in her answer, charge acts of adultery, on the part of the husband, in bar of the suit.
    Where it appears, in any stage of the suit previous to a final decree, that the adultery complained of in the bill has been actually forgiven, and has not been revived by subsequent misconduct, or that it was committed with the concurrence, or by the procurement of the complainant, a divorce will not be granted. If there is reason, therefore, to suspect that such a defence exists, although the defendant neglects to set up the same, the chancellor, ex officio, may direct an inquiry to ascertain the fact.
    Condonation is a conditional forgiveness of the injury; and a repetition of the offence revives a condoned adultery.
    1 Where an adulterous intercourse has once been established, if the parties \ thereto continue to reside together, it may be presumed-that the criminal connection still subsists, although there is no positive evidence of the fact.
    The'adultery of the complainant, although committed after the commencement of his suit for a divorce, is a bar to such suit. And where the adultery of the complainant is committed after the answer of the defendant has been put in, she will be permitted, if she applies immediately after the discovery of the fact, to set up that defence in a supplemental answer, or by a cross bill in the nature of a plea puis darrien continuance.

    Whether such defence may be made by a cross bill, in the nature of a bill of review, where the fact is not discovered by the defendant until after a final decree for a divorce ? Qumre.

      This was a suit by the husband against his wife, for a divorce, on the ground of adultery. The defendant put in the usual answer, denying the adultery charged in the bill; upon which a feigned issue was awarded. Upon the trial, the complainant proved one act of adultery on the part of the defendant, and the jury gave a verdict against her. The cause being in readiness for hearing upon the pleadings and the verdict of the jury on the feigned issue, it was referred to the vice chancellor of the third circuit, to hear the same, and to make a final decree therein. Upon the hearing before the vice chancellor, the defendant’s counsel produced a certificate of the circuit judge, that on the trial of the issue she offered evidence to prove a condonation of the offence testified to by the witness for the complainant. And upon which certificate they asked for a new trial; or for a reference to a master to take proof of the alleged condonation. This application was refused; and the usual decree for a divorce was entered; from which decree the defendant appealed to the chancellor. A petition was now presented in behalf of the appellant, in which she alleged that the testimony of the only wi ness by whom the adultery was proved, on the trial, was false. But inasmuch as she was unable to disprove the fact, she asked to be permitted to show a condonation thereof by a voluntary cohabitation of the husband with her after he was informed of the alleged adultery. The petitioner further staled, that since the decree of the vice chancellor, she had ascertained that the complainant, pending the suit and before the trial of the feigned issue, commenced an adulterous intercourse with his hired girl, and which had been continued down to the time of the. decree. This recriminatory charge was also established by the affidavits of two witnesses, and was not denied on the part of the complainant. The petitioner, therefore, prayed for a reference to a master to take proof of the facts alleged in the petition as a bar to the divorce; or if the court should decide that the relief prayed for could not be granted by the chancellor, on the appeal, that then the appeal might be dismissed, without prejudice to her right to ápply to the vice chancellor forthe relief to which she might, be entitled upon the facte stated in the petition. In opposition to the petition, the complainant produced an affidavit, by which it appeared, that a suit brought by him against the alleged adulterer was tried at the same circuit and shortly before the trial of the feigned issue in this case. That upon the trial of that cause, many witnesses were introduced to prove divers acts of adultery with the defendant; and that when she left the house of her husband she went to the residence of the adulterer, and continued to reside there with him until after the filing of the bill in this cause. Upon which trial the jury gave a verdict in fayor of the plaintiff, for $3000. That immediately thereafter the feigned issue came on to be tried, and while all the witnesses examined in the other cause were present in court. And that as no testimony was given on the part of the defendant, the complainant’s counsel supposed it sufficient to prove a single act of adultery, and therefore called but one witness on that trial.

      April 1.

      M. T. Reynolds, for the complainant.

      8. Stevens <$• S. Chéever, for the defendant.
   The Chancellor.

As the case stood before the vice chancellor, the decree was certainly correct; and there is no foundation whatever for the appeal. The circuit judge was right in rejecting the evidence, offered by the defendant, to prove a condonation of the adultery which had been established by the testimony of the witness. The only questions properly triable at the circuit, on the pleadings in this case, were as to the defendant’s guilt or innocence in relation to the several charges of adultery stated in the complainant’s bill, and which were set forth in the circuit roll. In a case of this kind, if the defendant wishes to prove a condonation of the offence, or to establish a recriminatory charge in bar of the divorce, strictly, she should urge it by way of special plea, or insist on it in her answer as a defence. Although she denies the adultery charged in the bill, she may in the same answer insist that if any act of adultery has been committed, there has been a condonation, or forgiveness of the offence, by a voluntary cohabitation, or otherwise. And she may also, in her answer, charge other acts of adultery, on the part of the husband, as a compensatio criminis or legal bar of the suit for a divorce, in case the adultery charged in the bill shall be established by proofs. Where a condonation, or a recriminatory charge, is set up in the answer, if an issue is awarded to try the charges of adultery contained in the bill, the same jury will be directed to inquire as to the truth of the alleged condonation, or the recriminatory charge; and the issues sent down to the circuit to be tried will be framed accordingly. {See Rule 168.) If the adultery of the defendant is admitted by the answer, and a condonation of "the offence is set up in bar thereof, the truth of the alleged defence may be inquired into upon the reference to the master to inquire and report as to the facts charged in the bill; and a special direction to the master to that effect may be inserted in the order of reference, under the direction of the court.

If the defendant in this case had a good defence, by reason of a condonation, which, through mistake or inadvertence, she had neglected to set up in her answer, she should have applied to the court the first opportunity, for leave to amend her answer, or to file a supplemental answer, for the purpose of putting that fact in issue. If it was not too late to set up that defence after the trial of the feigned issue, and I am inclined to think it was not if a sufficient excuse had been shown, she should have made a special application to the court immediately after the trial of the issue; and before the cause was sent down to the vice chancellor for a final hearing and decree upon the equity reserved. This court, however, will in no case dissolve a marriage contract, on the ground of adultery, where it appears upon the pleadings or proofs, properly taken, that the injured party, with a full knowledge of all the facts, has actually forgiven the injury, and which has not been revived by subsequent misconduct; or where it appears that the adultery was committed by the procurement, or with the connivance of the complainant. The chancellor, therefore, at any time before a final decree in the cause, if there is reason to believe such a defence exists, may ex officio direct an inquiry to ascertain the fact. Such an inquiry, however, is not a matter of right on the part of the defendant. It is a matter resting solely in the discretion of the court, to enable the chancellor to guard against fraud or collusion, in the exercise of a jurisdiction in which, as I have reason to believe, both parties are sometimes concerned in attempts to deceive and mislead the court in reference to the real facts in the case. (See 1 Consist. Rep. 292. 1 Hagg. Eccl. Rep. 752.)

In the present case, the vice chancellor, who had a full knowledge of the facts from what had transpired before him at the circuit, was unquestionably right in declining, ex officio, to order an inquiry to ascertain those facts, as they were wholly insufficient to justify the court in refusing the divorce. It does unquestionably appear that while the defendant continued to live with her husband, he was either more incredulous or more forbearing than most men would have been under similar circumstances. And he probably would have forgiven his wife and continued to live with her, even after he had reason to believe she had been unfaithful to his bed, could she have been prevailed upon to change her course of conduct and to reject the improper attentions of her paramour. But there was nothing adduced in evidence on' the trial of the crim. con. suit to induce a belief that the husband intended to connive at, or to encourage, an illicit intercourse between his wife and another. Condonation is a conditional forgiveness, and a repetition of the injury revives the condoned adultery. (Durant v. Durant, 1 Hagg. Eccl. Rep. 745.) And I think there was sufficient evidence on the trial to satisfy any reasonable mind that the adultery of the wife was continued after she left the house of her husband ; subsequent to which time there is no pretence of cohabitation with the complainant, or of actual forgiveness. And if such subsequent adultery can fairly be presumed, then all the former adulteries are revived. In Turton v. Turton, (3 Hagg. Eccl. Rep. 350,) Dr. Lushington, in delivering the opinion of the consistory court of London, says, I take it to be clear that according to the doctrine of this court, and according to all the principles in similar cases, if it can be once shown that the parties had been cohabiting in an illicit connection, it must be presumed, if they are still living under the same root) that the criminal intercourse, subsists, notwith standing those who live under the same roof are not prepared to depose to that fact.” And certainly, if courts of justice are to draw the same conclusions which every body else would 1 draw from the same facts, when it is once established that an adulterous intercourse has commenced between parties, and they are found living together, under circumstances which would induce every unprejudiced mind to conclude their inclinations had not changed, the fair presumption is that the illicit intercourse is still continued. What, then, were the facts here 1 The fact of adultery having been committed by this woman with a particular individual, at different times, and in various situations, before she left the house of her husband, is satisfactorily established by the testimony of several, respectable witnesses. And when she left her husband, she went immediately to the house of her paramour, who received her, and assisted her to carry off her clothes; and she continues to live with him. It is true he had a wife residing at the same place ; but it appears from the testimony of one of the witnesses, that even the presence of the wife was not sufficient to restrain the indecent familiarities of the defendant with the adulterer ; as the wife came into the room while her husband had his arms around the defendant’s neck. Upon the whole, I am satisfied that if the whole testimony which was adduced in the other case, had been gone into upon the trial of the feigned issue, and the question of condonation had been properly before the jury, they must have arrived at the conclusion that the adulterous intercourse continued long after the pretended acts of forgiveness on the part of the complainant.

The recriminatory charge, of an adultery committed by the complainant, is of a very different charac er. If a husband, who seeks to obtain a divorce on account of the criminal conduct of his wife has himself been guilty of the same offence, whether before or after the adultery of the wife, it is a conclusive bar to the suit. (Forster v. Forster, 1 Hagg. Consist. Rep. 144. Astley v. Astley, 1 Hagg. Eccl. Rep. 714. Poynters Mar. Div. 224. 2 R. S. 145, § 42, sub. 4.) It appears from the petition and affidavits, and the fact is not denied on the part of the complainant, that while he was carrying on this suit against his wife, to obtain a divorce on account of her adultery, an adulterous intercourse, on his part, was commenced with his servant girl, which continued down to the time of the decree. Although this misconduct of the complainant did not occur until after the commencement of the suit for a divorce, and after a feigned issue had been awarded, it would have been as effectual, to bar the suit, if it had been discovered in time, as if it had occurred previous to the adultery of the wife. (Poynter’s Mar.& Div. 224. Bris co v. Brisco, 2 ¿¡.Adams’ Eccl. Rep. 259.) Upon a proper application, therefore, even after the trial of the feigned issue, and at any time before the final decree, if such application had been made immediately after the discovery of the fact, it would have been the duty of the court to have permitted the defendant to put in a supplemental answer, or to file a cross bill, in the nature of a plea puis darrein continuance at law, for the purpose of setting up this new defence. (See Hopk. Rep. 27. Willis on Pl. 36 4.) Whether such a defence may be brought before the court by a cross bill in the nature of a bill of review, when the fact is not discovered until after a final decree, is a question that does not appear to have been decided in any case which I have been able to discover. I shall, therefore, express no opinion on that question, as it cannot be decided on the present application. If relief of that kind can be obtained after such a lapse of time, the proper course for the appellant appears to be to dismiss her appeal, and to apply to the vice chancellor, by whom the final decree in the cause was made, for leave to file such a bill.

As there is no foundation for the appeal, the court need not, in this case, preclude the possibility of such an application, by a technical aflirmance of the decree. I shall, therefore, direct the appeal to be dismissed with costs, to be paid by the appellant, including the costs of opposing this applicaation ; and without prejudice to any application to the vice .chancellor which the defendant may be advised to make, ^


text:
    Parker vs. Williams.
    Where an injunction is granted ex parte, upon the filing of the bill, it is irregular for the complainant to serve the injunction upon the defendant, without serving him with a subpoena to appear and answer. But such irregularity is waived by the defendant voluntarily appearing and answering the bill.
    An application to set aside proceedings for a mere technical irregularity must be made the first opportunity.
    Where exceptions to the answer, for insufficiency, are put in within the time !¡¡fprescribed by the 38th rule, a motion to dissolve the injunction, upon bill and answer, cannot be made until the expiration of the time for procuring the master’s report on the exceptions.
    This was an appeal from the order of the vice chancellor of the seventh circuit, dissolving the injunction which had been previously granted therein, with costs. From the affidavits read before the vice chancellor, it appeared that the injunction, which had been granted ex parte upon the filing of the bill, was served on the defendant and his attorney on the 12th of November, 1833 ; but no subpoena to appear and answer had ever been served. The defendant voluntarily appeared, on the sixteenth of December, and demanded" a copy of the bill; which was afterwards served on him, by the complainant’s solicitor, within the time allowed for that purpose by the 35th rule. On the 29tb of January, 1834, the defendant put in his answer, and at the same time served the complainant’s solicitor with copies of affidavits and a notice of a motion, for the 11th of February, to dissolve the injunction, with costs. And on the 8th of the same month, the complainant excepted to the answer for insufficiency.
    April 15.

      G. -ft. Slansbury, for the complainant.

      Julius Rhoades, for the defendant.
   The Chancellor.

There was a technical irregularity in this case, in serving the defendant with the injunction without taking out and serving him, at the same time, with a subpeena to appear and answer. (Patrick v. Harrison, 3 Bro. C. C. 476. Attorney General v. Nichol, 16 Ves. 338.) And if the application had been made the first opportunity, the injunction might have been dissqlved on that ground. But this irregularity was waived by the defendant voluntarily appearing and putting in his answer. It was therefore too late for him to make the objection, after such a lapse of time; and after those proceedings had taken place. Where a party seeks to set aside the proceedings of his adversary, upon a mere technical irregularity, he must make his application the first opportunity he has for that purpose. (Hart v. Small, 4 Paige’s Rep. 288. Nichols v. Nichols, 10 Wend. Rep. 560.) It appeared, upon the face the complainant’s bill, that the suit at law was at issue at the time of obtaining the injunction ; and in the absence of any proof to the contrary, I must presume the officer allowing the injunction did his duty, by requiring a bond and security, as directed by the statute, before the issuing of the injunction. If there was any irregularity in that respect, it should have been stated in the papers on which the application to dissolve the injunction was founded.

Exceptions to the answer for insufficiency being duly filed, within the time prescribed in the 38fh rule, it was not in order to make the motion to dissolve the injunction on bill and answer, until after the time for procuring the master’s report had expired. But if the vice chancellor was satisfied that the exceptions were put in for delay merely, he should have modified the injunction so as to have permitted the defendant to proceed to trial and judgment only, and without prejudice to the equitable rights of the complainant. There was sufficient equity, on the face of the bill, to sustain the injunction original!}' ; and, as all the other grounds for the absolute dissolution thereof failed, the order of the vice chancellor, which is appealed from, was erroneous. It must, therefore, be reversed, with the costs of this appeal; and the defendant must refund to the complainant the costs which have been received under that order.

I see no valid objection, however, to a modification of the injunction, so far as to permit the defendant to proceed to trial and judgment in his suit at law, if he thinks proper to proceed therein; but without prejudice to the equitable rights of the complainant, if he finally succeeds in his suit in this court. The injunction must be modified accordingly. -


text:
    Dunham and wife vs. Minard.
    Where notice has been given to creditors having general liens upon the undivided interest of one of the parties in a partition suit to come in and establish their claims before the master, the lien of such creditors upon the estate will be divested by the sale; a purchaser at the sale under the decree cannot therefore object that the master has decided wrong as to the existence of such a lien.
    If the master improperly rejects the claim of a creditor coming in under the notice in a. partition suit, as to his lien upon the premises, the claimant must except to the master’s report, if he wishes to preserve his lien upon the purchase money for which the premises are to be sold under the decree.
    The purchaser, at a master’s sale, cannot object to the title merely on the ground that there is a possibility that some person, other than the parties in the suit, has an interest in the premises, where there is no probability that any such interest exists.
    It is an established rule, both at law and in equity, that a mortgage is not evidence of a subsisting title or interest in the mortgagee, if he has never entered under his mortgage, and no interest has been paid, or demanded, thereon for more than twenty years.
    This was an application to compel the purchasers under a decree of sale in a partition suit, to complete their purchases. The premises were sold by the master as for a good and indisputable title, and as being free from incumbrances; and the purchasers were allowed a certain length of time to investigate the title. The purchasers afterwards refused to complete their purchases, on the ground of certain alleged incumbrances upon the premises. The title of the parties in this suit was derived from William Griffith, under a sale upon a judgment and execution against him, which judgment was docketed the 18th of February, 1808. It also appeared by the registry of mortgages, that certain mortgages were given by Griffith to Nicholas Owen, and Stephen W. Johnson, respectively, bearing date before the judgment, and which were duly registered after the docketing of the judgment, but before the sale of the premises under the execution, in September, 1808. Shortly after the sale, Owen called upon the purchaser for the payment of his two mortgages, but the latter refused to pay them, claiming that they were no longer liens on the premises, as they were not registered previous to the docketing of the judgment, under which the premises had been sold by the sheriff. Neither of the mortgagees had ever been in possession of the premises, and there was no evidence to raise a presumption that any thing had been claimed or admitted to be due on either of the mortgages for more than 25 years. The purchasers also objected that two judgments against the husband of one of the tenants in common, which the master had reported against upon the reference as to general liens, were existing incumbrances upon the life estate of the husband in his wife’s undivided interest in the premises.

      May 6.

      J. Edwards ty E. Sanford, for the complainants.

      Julius Rhoades, for the several purchasers.
   The Chancellor.

It is not material to inquire whether the master was right in his conclusion, that the judgments against Bailey were not liens upon the husband’s life estate in Ms wife’s share of the premises. By the amendments to the partition law, as adopted by the legislature in 1830, a. conveyance to the purchaser, under a partition sale, is a bar against all persons having general liens or incumbrances, by judgment or decree, on any undivided share or interest in the premises sold, in all cases where notice to such creditors has been given as prescribed in the statute. (3 R. S. App. 156, § 45, 49.) The purchaser has therefore only to inquire whether a reference has been had, and notice given to the creditors having general liens upon any of the undivided shares, to come in and prove their claims as directed by the statute. The only object of this reference is to enable the court to distribute' the purchase money in a proper manner; and if the master reports against the claim of any person having a lien, by judgment or decree, upon the share of any of the parties, the claimant must except to the report in due season, to preserve his lien upon the purchase money, which by the statute becomes a substitute for the land itself.

The other objection to the title is of a different character; but upon the facts disclosed, it cannot be sustained. The court neither gives, or requires a vendor to give, to a purchaser, a title against which there can be no possibility of a valid claim. The purchaser is only authorized to object to the title when there is a probability that some other person has a valid claim or subsisting lien upon the premises. In the case of Giles v. Baremore, (5 John. Ch. Rep. 552,) Chancellor Kent lays it down as an established rule, both at law and in equity, that a mortgage is not evidence of a subsisting title or interest in the mortgagee, if he has never entered under the mortgage, and there has been no interest paid, or demand thereof made for 20 years. And he refers to several decisions of the supreme court to the same effect. Here the mortgaged premises have been holden adversely to these mortgages for twenty-five years, and upwards; and there is not "the slightest probability that the purchaser at the sheriff’s sale, in 1808, or any person claiming under him, has ever admitted the existence of these mortgages as a valid or subsisting lien upon the premises, or that any interest has been paid by them. The mortgagor also died as early as 1812; he could not, therefore, have recognized the mortgage as a subsisting debt, within the last twenty years. And as no claim has been made by either of the mortgagees for such a length of time, the only reasonable conclusion which can be drawn from the facts in this case is, that these mortgages, if they were ever justly due, must have been paid and satisfied by the mortgagor, previous to his death. Although he permitted these particular premises to be sold on execution, yet, from the circumstance that he made a will, which was proved by his executrix in 1812, the presumption is, that he had other property, out of which the mortgages might have been satisfied, either by him or by his personal representatives. I cannot say, therefore, that this is a doubtful title, or that these purchasers run any other risk, in taking the same, than such as purchasers in all cases must necessarily rim ; that is, that the title may possibly prove bad, in consequence of some defect therein which cannot now be discovered, or rationally anticipated. An order must therefore be entered, declaring that the purchasers, under the master’s deed, will obtain a valid and indisputable title to the lots purchased by them respectively, and that upon the facts disclosed upon this application, the several mortgages to Owen and Johnson are not subsisting liens or incumbrances on the premises ; and directing the purchasers to pay the balance of the purchase money to the master, together with the interest thereof from the first day of April last, within ten days after service of a notice of this order on them, or their solicitors, respectively. They must also pay to the solicitor, for the complainants, the costs of this application within ten days after service of a copy of the taxed bill of costs.


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    Sullivan vs. Judah & Weed.
    An injunction should, upon its face, contain sufficient to apprise the party, upon whom it is served, what he is restrained from doing; without the necessity of his resorting to the complainant’s bill to ascertain what the injunction means.
    A party will be in contempt, for a breach of an injunction, if the officer by whom the injunction was allowed acted within his powers and jurisdiction, under the rules of the court, although it was erroneously granted, and for an insufficient cause. But the court will take into consideration the fact that the injunction was erroneously granted, and without sufficient equity to sustain it, in determining the extent of the punishment to be imposed upon the party who has been guilty of a breach thereof.
    Whenever the injunction will probably produce a serious loss or damage to the defendant, by the suspension of the proceedings enjoined, the officer allowing the injunction should require security from the complainant, under the last clause of the 31st rule, to pay such damage; ar he should, at least, take the complainant’s own bond.
    May 6.
    This was an application for an attachment against the defendants, for a breach of an injunction. A cross motion was made for a dissolution of the injunction, which application was granted, upon the ground that there was no equity in the complainant’s bill entitling him to an injunction. The defendant, Judah, was the proprietor of certain buildings, which were being erected in the city of New-York, and the defendant Weed was employed in the erection thereof, under a contract to do the carpenter’s work. The injunction, among other things, restrained the defendants from proceeding with the erection of the buildings in the bill of complaint mentioned and referred to, and from interfering in any manner with the work stipulated to be performed by the complainant, under the contract mentioned in the bill. But without any other description of the buildings, or the place where they were situated, or any other specification of the contract of the complainant for work, except by the reference to the bill on file. The defendant Weed had gone on with the carpenter’s work, upon the buildings mentioned in the complainant’s bill, notwithstanding the injunction; but both defendants denied that they had interfered with the mason work which the complainant had contracted to perform, except so far as was necessary to go on with such work to prevent the buildings from being injured. It was proved, however, by affidavits on the part of the complainant, that the defendant Judah, after the issuing of the injunction, directed the workmen to go on with the work on the buildings, and told them he would stand between them and all harm. The day after the issuing of the injunction, Judah conveyed all the buildings to other persons, as he alleged upon a bona fide sale thereof; and subsequent to that time, the work had gone on under the authority and direction of his grantees.

      D. Graham, jun. for the complainant.

      Julius Rhoades, for the defendants.
   The Chancellor.

'v There is no doubt in this case, that there has been a technical violation of the injunction, on the part of both defendants. The injunction was erroneous in not describing with sufficient certainty, on its face, the particular buildings with the erection of which the defendants were restrained from proceeding. The injunction should, in itself, contain sufficient to apprise the party upon whom it is served what he is restrained from doing; without the necessity of his resorting to the complainant’s bill on file, to ascertain what the injunction means. And if the defendants, in the present case, had not in fact known to what particular buildings the injunction related, they would have been excusable for proceeding, notwithstanding the injunction. It is evident, however, that they did understand, either from an examination of the records of the court, or otherwise, that the buildings described in the complainant’s bill, were those which the defendant Judah was erecting in the city of New-York. j

The injunction restrained the defendants, generally, from proceeding with the erection of the buildings, as well as from intermeddling with the work stipulated to be done by the complainant under his contract. The continuation of the carpenter’s work by Weed, was therefore as much a breach of the injunction, as proceeding with the mason work would have been. Audit is no answer to this application to say there was no allegation in the bill which could entitle the complainant to stay the defendants from going on with the carpenter’s work. If that was a sufficient excuse, it would be equally applicable to the mason work; as this court has already decided that there was nothing in the complainant’s bill which entitled him to an injunction restraining the defendants from proceeding with any of the work on these buildings. When an injunction has been granted by the proper officer, acting within his powers and jurisdiction under the rules of the court, the defendant, upon whom the same is served, must not be permitted to speculate upon what may be the decision of the court, upon the equity of the bill upon which the injunction has been allowed. In this case the master had the power to allow the injunction, as it did not appear from the bill that the injunction must necessarily produce great and irreparable injury to the defendants. It was one of those cases, however, in which, if there had been equity in the bill to support an injunction, the master should, in the exercise of a sound discretion, have required security from the complainant, under the last clause of the 31st rule, before he allowed the injunction. Such security should be required, or the complainant’s own bond, at least, should be taken by the officer allowing the injunction, in all cases where the injunction will probably produce a serious loss or damage to the defendant, by the mere suspension of the proceedings enjoined. (See 2 Paiges R. 116.) Although a party, however, is not to be permitted to violate an injunction with impunity, even if it has been erroneously issued, and without any sufficient cause to sustain it, yet the court may take that fact into consideration in determining the extent of punishment which is to be awarded against the defendant for a breach of such injunction. But the least that the court can do in such a case is to require the party, who has been guilty of a breach of the injunction, to pay to the adverse party the costs of the proceedings against him for the contempt. In this case it is evident the complainant has sustained no injury by the proceedings of the defendants, although they have proceeded in direct opposition to the injunction. . And the excuse offered by them is sufficient to prevent the impositionof any considerable fine, as a punishment for contemning the process of the court. Upon payment of the costs of this application, therefore, all further proceedings against them for the contempt will be stayed. But if they do not elect to pay such costs to the complainant, or his solicitor, and actually pay the same within ten days after service of a copy of the taxed bill on their solicitor, an attachment must issue against them, to answer for the alleged contempt; the attachment to be bailable in the sum of $200, and returnable on some day in the next term of this court at New-York,


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    Tompkins vs. Fonda.
    A widow’s right of dower, before assignment, is a mere right or chose in action, and not an estate or freehold in the land, or such an interest as can be sold on execution against her.
    Before assignment and entry, a widow cannot convey her dower right to a stranger, by any of the ordinary modes of conveying freehold estates, so as to vest the legal interest in her grantee.
    But if the widow is in possession, or is entitled to an assignment of dower immediately, the want of a mere formal assignment ofherdowerisnotconsidered material in equity. And her interest, in such a case, may be reached, upon a creditor’s bill, and applied to the satisfaction of the complainant’s judgment.
    The widow’s right of dower, before assignment, is a thing in action, within the meaning of the statute authorizing the court of chancery to decree satisfaction of ajudgment, out of personal property, money or things in action of a defendant, after the return of an execution unsatisfied.
    May 6.
    This was an application for the appointment of a receiver, upon a judgment creditor’s bill. The only property of the defendant was her right of dower in a farm of which her husband died seised; of which farm she had continued in possession, with the heirs of the husband, from the time of his death; but her dower therein had never been demanded, or assigned to her. And the only question presented to the court, for its decision, was whether this was such an interest as could be reached by the aid of the court of chancery, after the return of an execution at law unsatisfied.

      M. T. Reynolds, for the complainant.

      E. H. Kimball, for the defendant.
   The Chancellor.

At law, the widows right of dower, previous to an assignment thereof, is not an estate or freehold in the land of her deceased husband, but is a mere right or chose in action. She has not, therefore, such an interest in the land as can be sold on execution. Neither can she, before assignment and entry, convey her dower right to a stranger, by any of the ordinary modes of conveying freehold es-tales, so as to vest the legal interest in her grantee. (Watk, on Conv, by Merrifield, 41. Jick. Leg. & Eq. Estates, 362. 4 Dow. & Ryl. Rep. 276. 9 Mass. Rep. 13.) But in equity, if the widow is in possession, or is entitled to an assignment of dower immediately, the want of a mere formal assignment of dower is not considered material. And if she has received the income of the whole premises, either as guardian of the heir at law or otherwise, she will, upon the taking of an account thereof, be entitled to retain her third, although her dower has not been assigned. (1 Peer Wms. 122.) She has no right therefore, in conscience or in equity, to deprive her creditors of the benefit of her right of dower, for the satisfaction of their debts, by continuing in possession with the heirs and neglecting to ask for a formal assignment; which assignment, and entry under it, would enable the creditors to reach it by execution. The right of dower of the defendant in this case is such an interest as may be reached, by the aid of this court, and applied to the satisfaction of the complainant’s judgment. Indeed the term things in action, as used in the statute, (2 R. S. 174, § 39,) embraces this very case ; as the widow’s right of dower before assignment is not an estate in her, but is properly a chose in action. (Jacob’s Law Dict., title Chose. Termes De La Ley, Chose in Action.) Although the legal title to a mere chose in action cannot be assigned so as to authorize the assignee to maintain an action at law in his own name, yet in equity such assignments are sustained. And even courts of law now recognize the validity of such assignments, so far as to protect the interest of the assignees against a release or discharge of the right of action by the assignor.

It must, therefore, be referred to a master, in the county of Saratoga, to appoint a receiver, and to take from such receiver and file with the register a bond with sufficient sureties, conditional for the faithful performance of his trust. And after the appointment of such receiver, the defendant must, assign to him, for the purposes of this suit, her right of dower in the farm. The receiver is also to be authorized to proceed in her name for the recovery and assignment of her dower and the arrears thereof which may be due. And after such dower has been assigned, the receiver is to be let into the possession of the lands so assigned to the defendant for her dower, and to receive the rents and profits thereof until the further order of , this court.


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    Rogers and others vs. Paterson.
    The order for the revival of a cause upon petition, should be entitled as in the original cause at the time of the abatement; but all subsequent orders and proceedings must be entitled in the cause as revived.
    An appeal lies from an order of the court of chancery directing a suit to stand revived against the representatives of the deceased party, if the rights of the appellant are in any way affected by such revival of the suit.
    The assistant register, or a clerk of the court, is not authorized to approve of the appeal bond upon an appeal entered with the register. The bond must be approved by a vice chancellor, or injunction master, or by the officer of the court in whose office the appeal is entered.
    A party in contempt cannot apply to the court for a favor until he has purged the contempt, by complying with the former order of the court.
    The advice of counsel cannot protect a party in disobeying an order of the court, or prevent the adverse party, whose remedy is impaired or impeded by sach disobedience, from proceeding as for a contempt to compel a compliance with the order.
    May 26.
    After the decision of the court for the correction of errors, in this cause, the suit was revived, upon the petition of the defendant, against the executors of J. Taylor, deceased, as complainants with the surviving complainants in the original suit. And a decree was thereupon made, in conformity with the decision of the appellate court, referring it to Master Codwise to take an account of the $20,000 legacy given by J. Ellis, deceased, to the defendant's deceased wife, and of the accumulations and increase thereof, and of the stocks, securities and other property in which the same was invested ; and ordering Nehemiah Rogers and Mary Ellis, the surviving executors of J. Ellis, and J. Johnson and J. S. Taylor, executors of J. Taylor deceased, the present complainants, to appear before the master, and execute and deliver to the defendant Paterson such transfers, assignments, or other conveyances,, of the stocks, securities, or other property, as the master should require; and to pay to the defendant such sums of money belonging to the fund, and the accumulations thereof, as should appear to be in the hands.of the said Nehemiah Rogers and Mary Ellis, or to have been in the hands of J. Taylor, deceased, at the time of his death, and which should appear to be in the hands of the executors of the latter, or in the hands of any or either of them ; with liberty to any of the parties to apply to the court of chancery from time to time for such further directions as might be necessary or proper to carry the said decree of the court for the correction of errors into full effect.  A copy of the order was served on the solicitor of the complainants, and also on N. Rogers, M. Ellis, and J. Johnson, personally, on the IStb of April, 1834; together with a summons from the master to appear before him on the 21st of the same month, to proceed upon the decree, and to execute and deliver to the defendant transfers of the stock, securities, and other property, and to produce an inventory and an account of the funds and property, in the form of debt- or and creditor. But on the return day of the summons, the executors of Taylor, acting under the advice of their counsel, refused to attend before the master. The defendant, thereupon, obtained an order from the chancellor, directing J. Johnson, one of those executors, upon whom the summons had been personally served, to show cause why he should not be punished for his misconduct in neglecting or refusing to obey the summons. Johnson put in an affidavit, stating that the reason why he did not attend before the . master upon the return of the summons was because he had determined to appeal from the decretal order, reviving the suit and directing the decree of the court of errors to be carried into effect; and that he was advised his attendance before the master might prejudice the rights of the executors of Taylor upon the appeal. That he did so appeal from the decretal order, and that he executed the usual bond, with sureties, for the prosecution of the appeal, which was approved and filed with the assistant register on the first of May. The order appealed from was entered with the register, and the appeal was filed in his office. It was also suggested in the affidavit that the summons was wrong, being entitled in the suit as it was directed to stand revived, while the decree itself was entitled in the cause as it stood previous to the revival.

      D. Lord,jm. for the defendant Paterson.

      Jl. Van Vechten fy T. L. Ogden, for Johnson.

         See ante, 418, S. C.

   The Chancellor.

There is no irregularity in this case, in the entitling of the summons, or of the decretal order. Until the cause was revived against the executors of Taylor, their names could not properly be inserted, in the title of the cause, as complainants with the surviving executors of Ellis. But that order, of itself, changed the title of the cause, and the summons, and all proceedings subsequent to the order of revival, are properly entitled in the suit as revived. The directions for carrying into effect the decree of the court for the correction of errors being in the same order which directed the revival, it was not necessary to change the title until some further proceeding in the cause was necessary.

The decretal order of the fifteenth of April, in addition to the directions for carrying into effect the decision of the court for the correction of errors, also contains the interlocutory order, directing the suit to stand revived in the names of the executors of Taylor as complainants, in connection with the surviving executor and executrix of Ellis. And even if the counsel for the defendant is right, in supposing that no appeal lies from an order of the court of chancery, founded upon the remittitur, for the sole purpose of making the decree of the court for the correction of errors a decree of this court, yet an appeal lies from the interlocutory order directing the revival of the suit against the executors of Taylor; as that question has never been passed upon by the court of appeal. The order of revival also is an order which materially affects the rights of the executors of Taylor, if it should turn out that this court is in the wrong. For if the defendant cannot revive this suit against them, it is evident he can never recover from them the legacy decreed to him by the appellate court; the prineipal part, if not the whole of which legacy appears to have been in Taylor’s hands, or to have been mixed with his own funds, at the time of his death.

It is not necessary for me to inquire whether an appeal, under the peculiar circumstances of this case, would have stayed the proceedings on that order, provided the appeal had been perfected before the contempt had been committed, but' without giving security for the amount due, or bringing the securities in which the fund was invested, into court, as it appears from Johnson’s own showing that no regular appeal was entered, within the fifteen days allowed for appealing. , The 117th rule of this court directs the appeal to be filed in the office of the register, or assistant register, with whom the decree or order appealed from is entered; and the 7th rule of the court for the correction of errors directs the petition of appeal, addressed to that court, to be filed in the same office. The affidavit of Johnson shows that the appeal was sent to the office of the register, where the order appealed from was entered in conformity with the rule of this court, to be filed. But this was not all that was necessary to make a valid appeal. The statute declares that the appeal shall not be valid for any purpose until a bond, in the penalty of $250, with sureties to be approved of by such officer of the court of chancery as the chancellor may designate for that purpose, shall be given to the adverse party. (2 R. S. 605, § 80.) A bond has been filed in this case in the office of the assistant register ; but it has not been approved of by an officer of the court who was authorized to approve thereof on this appeal. The rule of the court contemplates the filing of the appeal bond in the office where the appeal is entered, so that the officer who is to make the return to the appellate court may know that an appeal has been properly entered and perfected. Hence the 116th rule provides, that, the bond may be approved of by the register, assistant register, or clerk, with whom the appeal is entered. But the assistant register, or a clerk of the court, is not authorized to approve of an appeal bond on an appeal entered with the register. The bond must in all cases be approved of by a vice chancellor, or an injunction master, or by the officer of the court in whose office the appeal is to be entered. Here, the affidavit of Johnson shows that the bond, instead of being approved of and filed with the register, was approved of by the assistant register. The approval of the bond by the proper officer, who has been designated by the court for that purpose, being a statutory provision, although it was a mere formality in this particular case, is a formality which the court cannot dispense with. In conformity with the provisions of the statute, I am therefore bound to say that the appeal was not effectual for any purpose; and that it cannot stay the proceedings against Johnson under the order appealed from.

If the executors of Taylor wished to stay the proceedings before the master, their proper course was to have entered their appeal immediately, and to have given the requisite security as required by the statute. And not having done that before the return day of the summons, they were guilty of a contempt of the court in neglecting or refusing to attend before the master. A copy of the decretal order of the 15th of April, and of the master’s summons, was served on the 18th of the same month at New-York. If the fact that one of the ■executors of J. Taylor was a few miles from the city, afforded a sufficient excuse for delaying the appeal until after the return day of the summons, yet it appears that the appeal was signed and the bond executed, by both executors, on the 24th of April; and no reason, whatever, is given for the delay to have the appeal bond approved and filed, so as to perfect the appeal, until a week afterwards. The counsel for the defendant is, therefore, probably right in supposing that the object of the appellants was to delay the entering of the appeal until after the adjournment of the court for the correction of errors, so that the defendant could neither move to dismiss the appeal during the session of the legislature, or obtain a ' hearing thereon at the next special term of the court during the recess. Even if this court had the power to afford relief to the appellants, by permitting a bond with proper security to be approved and filed at this time, yet as they are in contempt for refusing to obey the master’s summons, they cannot come here to ask a favor of the court until they have purged that contempt, by complying with the order of the court, and paying the costs of these proceedings. (Johnson v. Pinney, 1 Paige's Rep. 646.)

An order must therefore be entered, adjudging and declaring that J. Johnson, one of the executors of J. Taylor, has been guilty of a contempt of this court, in neglecting to appear before Master Codwise, under the decretal orders of the 7th of January and the loth of April last, on the reference to take an account of the legacy of $20,000, and of the accumulations and increase thereof, and of the stocks, securities and other property in which the same is invested; and in neglecting to execute and deliver to the defendant, under the direction of the master, the assignments and other conveyances of the said stocks, securities and other property, as directed by the orders of this court; and also in neglecting to produce before the master an inventory and an account, upon oath, of the said funds and property, in the form of debtor and creditor. The order must also adjudge and declare, that such misconduct of Johnson was calculated to, and actually did impair, impede and prejudice the remedy of the defendant in this suit; and that for such misconduct the said Johnson pay a fine of twenty-five dollars, (which sum is probably less than the actual amount of the defendant’s taxable costs j) and that the said J. Johnson be committed to the common gaol of the city and county of New-York, until he shall have paid the said fine, which is to be paid over to the solicitor of the defendant, by the sheriff) to satisfy the costs and expenses of these proceedingsand also until he shall make and produce before the master, on oath, an inventory of the said funds and property, and an account thereof in the form of debtor and creditor, and shall also make, execute and deliver to the defendant such assignments and other conveyances of the stock, securities and other property in which the said legacy of $20,000, .with the accumulations and income thereof, is invested, as the master shall direct, in conformity with the said orders of this court; and that process of commitment issue, accordingly, to the sheriff of the city and county of New-York. But the sheriff is to discharge him, upon the payment of the fine, and upon the production of the certificate of the master that he has complied with the terms of the order of commitment. The sheriff must also attend with him, from time to time, before the master, as may be necessary, to enable him. to comply with the order.

As, the executors of Taylor have acted under the advice of counsel, and probably without any intention of contemning the process of the court, these proceedings may seem to be. harsh. But they are in conformity with the directions of the statute, which the court is bound to follow in a case of this kind. And the advice of counsel cannot protect a party in disobeying an order of the court, so as to .prevent the adverse party, whose remedy is impaired or impeded by such disobedience, from taking the necessary steps to compel a compliance with the order; although the fact that the party has acted in good faith, and under the advice of his counsel, may be sufficient to prevent the imposition of a fine beyond the actual amount of the injury sustained by the adverse party, and the necessary expenses of the proceedings. (Hawley v. Bennet, 4 Paige’s Rep. 163.) In this case, as the party in contempt has acted under a mistake as to his legal rights, I presume the solicitor for the defendant will not think himself justified in actually enforcing the process of commitment, if the executors of Taylor, upon being informed of this decision, consent to go before the master, and comply with the orders of the court. That, however, is a matter of professional comity only, to be regulated by the solicitor’s own sense of propriety; as to which the court will not interfere, or give any directions.


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    Eldridge vs. Howell & Howell.
    lipón an appeal from a vice chancellor to the chancellor, the notice of the appeal must be served on the solicitor of the adverse party, as well as upon the register or clerk, within the time limited by law for appealing.
    The last clause of the 117th rule, which requires notice of the appeal to be served en the solicitor of the adverse party within eight days after the entering of the appeal, is only applicable to appeals from the chancellor to the court for the correction of errors.
    An appeal from a final decree of a vice chancellor must be perfected within six months from the time of entering the decree. But the time for appealing from an interlocutory order or decree is to be computed only from the time of the receipt of notice thereof.
    There can he no legal notice of an interlocutory order or decree, so as to limit the right of appealing therefrom, until such order or decree is drawn up and settled, or passed by the register or clerk with whom it is to be ■entered.
    The securities in an appeal bond must each be worth double the amount of the penalty of the bond. And the officer approving the bond should, in his certificate of approval, certify that he approves of the sureties named in the bond, and that each of them is worth double the penalty of the bond, over and above all debts and responsibilities.
    Upoiyin appeal from an order or decree of a vice chancellor, the chancellor may authorize an amendment of the appeal bond, either as to the amount or as to the approval thereof
    This was an application, on the part of the complainant, to dismiss an appeal, by the defendants, from an interlocutory order of the vice chancellor of the first circuit The grounds of the application were, that notice of the appeal was not served upon the solicitor of the adverse party, as required by the statute, within the time allowed by law for appealing from an interlocutory order or decree; that the appeal bond was not executed by the appellants; and that the sureties in the appeal bond were not approved as is required by the 116th rule.
    May 26.

      R. H. Morris, for the complainant.
    The notice of the appeal was not served in season. It must be served within the time allowed by law for appealing. The latter part of the 117th rule does not apply to appeals from the vice chancellors.
      (2 R. S. 178, § 56, 57. 2 Paige's Rep. 413.) The bond is also defective. The appellant should have united in it. The sureties should have justified in double the amount of the penalty. It does not appear where they reside or whether they are householders. The master does not state in his certificate that he approves of the sureties. (Van Wezel v. Van Wezel, 3 Paige's Rep. 38.)

      W. JV*. Dychnan, for the defendants.
    The notice of the appeal was served in season. It was served within eight days after the service of notice of the order; which was within the time limited for appealing. The statute does not require the appellant to join in the bond. (2 R. S. 605, § 80 to 89, Rule 116.) If there is a defect in the form of the bond, or in the manner of approving of the same, it is amendable.
   The Chancellor.

The respondent’s counsel is right in supposing that upon an appeal from a vice chancellor to the chancellor, the notice of appeal must be served on the solicitor of the adverse party, as well as upon the register or clerk, within the time limited by law for appealing from the order, or decree, complained of by the appellant. (2 R. S. 178, § 60.) The last clause of the 117th rule of this court, only applies to appeals from the chancellor to the court for the correction of errors; as to which there is no provision in the statute for the service of a notice of the appeal upon the adverse party, or his solicitor. Upon such an appeal, the appellant must also file a petition of appeal, with the register or assistant register in whose office the decree or order of the chancellor is entered, as required by the seventh rule of the court for the correction of errors, or the appellate court will dismiss the appeal. There is nothing in the papers on which the present application is founded, however, to show that the notice of appeal was not served, upon the solicitor of the respondent, within the time allowed by law for appealing. An appeal from a final-decree of a vice chancellor, must be entered and perfected within six months from the time of entering such decree. But upon an appeal from an interlocutory order or decree, the fifteen days is to be computed from the time when the appellant or his solicitor has notice of the decree of order appealed from. And there can be no legal notice of the order, so as to limit the right of appeal, before the order is drawn up and settled or passed by the register or clerk with whom the same is to be entered. It appears, by the caption of this order, that it was entered the same day that the decision was pronounced. But as the solicitor for the appellants resided in Suffolk county, it is hardly probable that he could have received notice of the order until some time afterwards.

This court has recently decided that it is not necessary to the validity of an appeal that the appellant should join in the appeal bond. It is sufficient if the bond is executed by two responsible sureties, and be approved of by the proper officer of the court. There is, however, an insurmountable objection to the validity of the appeal in this case. The injunction master has neither in form or substance approved of the sufficiency of the sureties in the appeal bond. He approves of the form and manner of execution of the bond, and certifies that each of the sureties who have executed the same is worth the sum of one hundred dollars over and above all debts and responsibilities. The requisite amount in which the sureties in this case should have been required to justify, in analogy to the security required upon a writ of error, and in conformity with the directions of the 172d rule, was double the amount of the penalty of the appeal bond. (See 2 R. S. 597, § 35. 3 Paige’s Rep. 38.) And the master should have approved of the sufficiency of the sureties in the bond, as well as the form and execution of the' bond itself. He should also have stated in his certificate of approval, that each of the sureties was worth double the amount of the penalty of the bond over and above all debts and responsibilities.

The irregularity in the j ustification, and in the approval of the sureties, in this case, was probably owing to a mere mistake or misapprehension of the practice. And the amount of the appeal bond, on an appeal from a decree or order of a vice chancellor, and the manner of approving the same, being regulated by a rule of this court, and not by an unbending statutory provisión as in the case of an appeal to the court for the correction of errors, this court may dispense with the strict letter of the rule, and permit a new bond to be filed and approved, upon the payment of costs. I have, therefore, looked into the merits of this case, upon the papers and the briefs of the parties which 'were submitted to the court upon the appeal, to see if an amendment of the affidavit of justification and a new approval of the appeal bond would benefit the appellants. Upon this examination of the merits of the case, I am satisfied the decision of the vice chancellor was correct. And the appeal being irregular, the motion to dismiss it is granted, with costs.

         The North American Coal Co. v. Dyett, ante, 273.