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    Connolly v. Pardon and others.
    December 2d.
    Where a testator made a bequest to a person by a wrong Christian name, parol evidence was admitted to show what person was intended.
    This was a bill for a distributive share of the estate of the late Bishop Connolly. The testator made his will, on the 4th of February, 1825, and after several specific legacies, he bequeathed the residue as follows: “Thirdly, I bequeath to my brother Cormac Connolly, and to my two sisters, Mary and Ann, whatever remains of my money, after the above bequests, to be divided between them share and share alike; and in case of the demise of either of them, to go share and share alike to the survivor or survivors.” On the following day, he made a codicil to the will, and thereby, among other things, bequeathed as follows: “ To my nephew Cormac Connolly, the son of my brother Cor-mac Connolly, the sum of five hundred dollars for his ecclesiastical education, which sum is to be taken from what I have bequeathed to my brother Cormac, and to my sisters Mary and Ann.” The testator never had a brother named Cormac, but he had a nephew Cormac, son of his brother James the complainant, who, at the time of making the will, was pursuing classical studies in Ireland, with a view to an ecclesiastical education; and he was the only nephew of that name. The only brother or sisters of the testator who survived him or left any issue, were the complainant and the two sisters named in the will, unless another brother named Henry, who left the family residence in Ireland unmarried thirty years since, and who had not been heard of by the family for many years, was then living. This was an amicable suit, for the purpose of settling the complainant’s rights under the will, and to protect the executors; to which suit Henry Connolly was made a nominal defendant, and the bill was taken pro 'x'confesso against him on a nine months’ notice, published agreeable to the statute.

      C. O'Conner, for complainant.

      H. A. Fay, for the executors.
   The Chancellor :—From the testimony in this cause, there can be ho doubt of the mistake in the will, and that the complainant was intended as the residuary legatee, who is described by the testator in the will as his brother Cor-mac. He could not have intended it for his brother Henry, because it is in evidence that the testator said he had made inquiries for him in this country, but could hear nothing of him, and supposed him to be dead. The reference to this devise in the codicil, and the description of his nephew as the son of his brother Cormac, shows conclusively that the complainant was the legatee intended. The cases are very contradictory on the subject of admitting parol evidence to correct mistakes in testamentary dispositions, but this steers clear of the decisions in those cases where the admission of parol evidence has been most restricted. If a legacy was given by a testator to his brother John, and it turned out in evidence that he had but one brother, whose name was James, there could be no doubt that the latter would be entitled, because the description of brother in that case would alone be sufficient, and the name might be rejected as surplusage. In this case the legal presumption is, that Henry was dead, and that James was the only brother; and that the testator, in fact, believed so at the time he made his will. Again the codicil shows that the father of his nephew, Cormae, was the brother whom the testator intended as the object of his bounty. In Thomas v. Stevens, (4 John. Ch. Rep. 607,) the late Chancellor Kent went much farther, and permitted a person not named or described at all in the will, to take a legacy, upon evidence that she was the person intended, there being no person of the name mentioned in the will.

The complainant is entitled to one-third of the residuum of the estate of the testator; but the executors were justified in submitting this question to the court, and must, therefore, be allowed to retain their costs out of the same.

       See Smith v. Smith, 1 Edw. Ch. 189; S. C., 4 Paige, 271; Tudor v. Tirrell, 2 Dana, 47.

       The case of Beaumont v. Fell, 2 P. W. 425, was recognized in this case as authority ; and in Tudor v. Tirrell, 2 Dana, 47; but the authority of it is doubted in note 275, pp. 552, 559 of Cowen. & Hill’s notes to Phil. Ev. And seems at variance with the decision in Miller v. Travers, 8 Bing. 244.


source: Caselaw Access Project

license: Public Domain

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    *Toppan v. Heath.
    Dec. 6th.
    Where two parties submit their differences to arbitrators, and agree to make the admission a rule of court, in a court of common law, pursuant to the act for determining differences by arbitrators, (1 R. L. 125,) the Court of Chancery will not entertain jurisdiction to set aside the award, unless injustice would be done.

    This was a motion to dissolve an injunction on bill and answer. A difficulty having arisen between the parties relative to the contract for building the Arcade, in the city of New York, they submitted the same to arbitrators, and agreed that the submission should be made a rule of the Court of Common Pleas in that city. On the 31st of May, 1827, the arbitrators made an award against Toppan for the payment of $2,202 89, of which he received a duplicate the following day from one of the arbitrators. A suit was afterwards commenced by Heath to recover the amount of the award, whereupon the complainant filed his bill, alleging sundry irregularities on the part of the arbitrators, and particularly that they examined a witness without oath, and in the absence of Toppan; on which bill a preliminary injunction was obtained. The defendant having put in his answer, a motion to dissolve the injunction was made and argued before the late Chancellor; but as the answer had been excepted to, the motion was denied. The exceptions having since been answered, the motion was now renewed.

      T. H. Flandereau, for the complainant.

      H. Bleecker, for the defendant.

        Campbell v. Western, 3 Paige, 124; 2 R. S. (4th ed.) 775, sec. 10, 11.

   The Chancellor :—It appears by the answer of the defendant, that at the next term after making the award, the complainant applied to the New York Common Pleas to set aside the same, in pursuance of the provisions of the statute; and that afterwards, upon hearing the case upon the merits, the application was denied, with costs. This allegation in the answer not being responsive to any thing contained in the bill, I have not taken it into consideration on this *motion, but have considered the question as if the complainant had neglected to apply to that court for relief.

The principles on which a court of equity relieves against an award of arbitrators, are pretty well settled and understood ; and this court has frequently had occasion to advert to them; (Herrick v. Blair, 1 John. Ch. R. 101; Woodworth v. Van Buskirk, id. 432; Shepherd v. Merrill, 2 John. Ch. R. 276; Todd v. Barlow, id. 551.) And in the case of Van Cortlandt v. Underhill, (17 John. Rep. 405,) Spencer and Yates, Justices, and Allen, Senator, who delivered opinions in the Court of Errors, went into the subject at length. The same questions are also ably examined by one of the judges of the Court of Appeals in South Carolina, in the case of Shinnie & Loomis v. Coil, (1 M’Cord’s Ch. R. 478.) It would therefore be useless for me to go over that ground. Neither is it necessary to the decision of this motion, that I should compare the facts stated in the bill and admitted by the answer, with the principles which have been sanctioned in the cases referred to, although upon such examination it might appear that the alleged irregularities in this case were not sufficient to vitiate the award, as I prefer placing the decision of the court upon the other question which has been raised by the counsel on the argument.

Ought this court to entertain jurisdiction to set aside an award of arbitrators, where the parties have expressly agreed that the submission shall be made a rule of another court, to the end that all the matters in difference between them shall be finally concluded by such arbitration, in pursuance of the act for determining differences by arbitration,” (1 R. L. 125,) and where there is no pretence that such court was not fully adequate to give the relief sought ? especially when there is no allegation that the complainant has been deprived of his remedy in that court by any mistake, fraud or accident ?

The first case I have been able to find in the English reports is Simmons v. Mullins, in the Exchequer. (Bunb. R. 182.) That appears to have been the case of a common injunction, obtained on the allowance of exceptions to an insufficient answer. If so, it was granted as a matter of ^course, without inquiry into the equity of the bill on which it was founded. An application was afterwards made for leave to proceed and examine the complainant on interrogatories in the King’s Bench, of which court the award had been made a rule. The application was granted, and a strong intimation was given against the proceeding in equity, although the question of jurisdiction does appear to have been distinctly raised.

A few years afterwards, the case of Allardes v. Campbell, (Bunb. 265,) came before the same court, and the question was distinctly raised by the defendant’s plea; but the judges were divided in opinion, and finally the plea was ordered to stand for an answer. That case does not appear to have again come before the court.

In the case of Lord Lonsdale v. Littledale, (2 Ves. jun. 450,) Lord Bosslyn expressly declares that the jurisdiction of the Court of Chancery is not barred by a reference under the statute. But the case before Mm was an award in a cause pending, which he admitted was not within the statute. The opimon was, therefore, uncalled for and extrajudicial; and it has not been sanctioned by subsequent decisions. The same remarks may be applied to the dictum of Sir Thomas Plumer, in Steff v. Andrews and wife, (2 Mad. Rep. 6,) in which case he expresses an opinion that the Court of Chancery has jurisdiction, if the submission has not actually been made a rule of court. But he admits if it had been made a rule of court, in pursuance of the agreement, Chancery could not interfere.

The question came before Lord Eldon in Nichols v. Charlie, (14 Ves. 265,) and after expressing very strong doubts as to the authority of the court to interfere, he denied the application for an injunction, but left tMs question undecided.

Afterwards, in the case of Gwinnett v. Bannister, (14 Ves. 530,) the same point came again before him, on a bill filed to set aside an award upon a submission which had been made a rule of the Court of King’s Bench. He then decided that the court had not jurisdiction, and stated that he had consulted with some of the judges on the subject, and that they agreed with him in opinion.

*The question was afterwards fairly presented at the Bolls, in the case of Goodman v. Sayers, (2 Jac. & Walker, 249,) but was not noticed by the defendant’s counsel or the court, and the bill was dismissed on other grounds. But in Davis v. Getty and others, in June, 1823, (1 Simons’ and Stewart’s Rep. 411,) the precise question presented by the complainant’s bill in this cause came before Sir John Leach; and he decided that where there was an agreement that the submission should be made a rule of a court of common law, Chancery had • no jurisdiction to relieve against the award, although the complainant had lost his remedy in the common law court, the time limited by the statute having elapsed. In delivering the opinion of the court, the Vice-Chancellor says, “I consider it to be the duty of the party who means to complain of the award, to make the submission a rule so as to give the proper court jurisdiction; and that if he fail to do this in due time, he cannot, by his own default, create a new jurisdiction in this court, and defeat the limitation of time fixed by the statute.”

In December of the same year, the case of Dewson v. Sadler (1 Simons & Stewart, 537) came before the same court. In that case, the agreement was that the submission might be made a rule of the King’s Bench or Court of Chancery. The complainant filed his bill in the latter court, within the time prescribed by the statute for making the submission a rule of court, and gave notice of a motion for an injunction. Two days after, and before the motion could be made, the defendant caused the submission to be made a rule of the King’s Bench, and showed that for cause against the application. It was, thereupon, again decided that no court but that of which the submission was made a rule, had jurisdiction to set aside an award under the statute; and that filing a bill was not equivalent to making the submission a rule of the Court of Chancery, because the object of the statute was to create a summary jurisdiction for the decision of such causes.

Our statute is substantially the same as the 9th and 10th William 3, ch. 15. The object of the second section undoubtedly was, as suggested by Sir John Leach, to afford a summary method of deciding upon the validity of awards, *where the parties had consented in their agreement of submission to refer the question to such a tribunal. The limitation in that section of the statute seems to be entirely useless, if the party in whose favor an award is made is still to be subjected to the expense and delay of a protracted Chancery suit.

I am aware that the mode of examining the defendant on oath as practised in this court, is sometimes of essential benefit to the complainant in eliciting facts which possibly the party might not be able to discover by the summary method of proceeding to set aside the award. When the submission is made a rule of court, the statute has not prescribed the mode of proceeding to ascertain the facts; and perhaps the court might, on a proper cause being presented upon affidavit, order the defendant to answer on oath as to any matters alleged to be within his knowledge only. But even if this were not the case, the privilege of compelling an answer on oath in this court, is one which the party, under the provisions of the statute may consent to waive; and for this he receives an equivalent in the saving of time and expense, and the privilege of selecting his own judges to determine the controversy in the first instance, and also the tribunal by which their proceedings are to be reviewed.

I am not prepared to say this court will in no case take cognizance of a cause where the parties have agreed to make their submission a rule of some other court. Although a party may not be compelled, in consequence of an antecedent agreement, to submit to palpable injustice, yet when he has made an agreement under the sanction of a legislative enactment, to submit his rights to a particular forum, and to a particular mode of proceeding, if he applies to be relieved from the effect of that government, he ought at least to show that injustice would probably be done were he compelled to submit his rights to the adjudication of the forum which he had selected for that purpose.

In this case, there is no pretence in the complainant’s bill that the Court of Common Pleas was not fully adequote to grant the relief sought; and if, as appears by the answer, he has made his application there, and that relief has been *denied, I am bound to presume it was because he had no merits in his case, as that court had authority to set aside the award for any of the causes mentioned in the bill, on which this court would be authorized to grant similar relief. The injunction must, therefore, be dissolved.


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    Haggarty and others v. Pittman, Strong and Bovee.
    Dec. 16th.
    Where a debtor, in failing circumstances, assigns his property to a person who is insolvent, in trust for his creditors, a receiver will be appointed upon the application of such creditors to take charge of the property so assigned.

    The defendants Strong and Bovee were indebted to the complainants and others on various notes, on which the defendant Pittman was the indorser. They also owed him $680, for money borrowed. In August, 1828, Strong and Bovee failed, and to secure Pittman, as their indorser and pay the money lent, they assigned to him a great number of demands against different individuals to a large amount. The complainants filed their bill in behalf of themselves and all others, standing in the same situation as creditors of Strong and Bovee, and having Pittman as security; alleging, among other things, that Pittman was insolvent, and praying an account and satisfaction of their respective debts out of the demands so assigned, and for an injunction and receiver. In opposition to the direction, an affidavit of Pittman was read, denying any intention to misapply the funds, and alleging that enough had not yet been collected to pay him the amount due for money borrowed.

      M. C. Patterson, for the complainants,
    cited Bank of Auburn v. Throop, (18 John. 505;) Monell v. Smith, (5 Cowen, 441;) Maule v. Harrison, (1 Eq. Cases Ab. 93.)

      S. A. Foot, contra,
    cited Orphan Asylum Society v. McCarty and others, (1 Hop. R. 429.)

        Connah v. Sedgwick, 1 Barb. S. C. R. 210. The appointment of such an assignee is prima facie evidence of fraud. Reed v. Emery, 8 Paige, 417; Browning v. Hart, 6 Barb. S. C. R. 91; see also Keys v. Brnsh, 2 Paige, 311,

   *The Chancellor :—The allegation in the bill, that Pittman is insolvent, is not denied in his affidavit. This court will never, for a moment, sanction the idea that debtors in failing circumstances shall be permitted to put their creditors in the power of an insolvent assignee, by a voluntary assignment of their property to him, although it is expressed to be for the payment of their debts, or for his indemnity against prior responsibilities. They may lawfully prefer one creditor to another, and indemnify their sureties in preference to either; but they have no equitable right to jeopardize the honest claims of any, by assigning their property to trustees who are irresponsible. And the proper course for this court in such cases is to appoint a receiver, on the application of the parties for whose benefit the fund is assigned. Where the assignment is to a surety for his indemnity, the creditor has an equitable claim upon the fund for the payment of his debt; and the surety has no right to divert it to any other object. Bank of Auburn v. Throop, 18 John. Rep. 505; Maule v. Harrison, 1 Eq. Ca. Abr. 93; 11 Ves. Jun. 22; 5 Bac. Abr. tit. Obligation, D. 4.)

In this case the assignee is personally responsible for the payment of the complainant’s debts, and cannot, therefore claim to retain the demands assigned until they pay his private debt due from the assignor. A receiver must be appointed, with the usual powers, and a reference to a master is directed, to appoint a suitable person and to decide as to the amount and competency of sureties to be given. But the defendant Pittman is not required to pay over the money actually collected by him, under the assignment, except so far as it exceeds the amount of his own debt.


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    *Lewis v. Germond and another.
    Dec. 19th.
    In no case can a complainant, unless he prosecutes as executor or administrator, dismiss his bill without the payment of costs, not even if it should appear he would be entitled to a decree if he proceeded in the suit.

    *This was a motion on behalf of the complainant for leave to discontinue this suit without costs, upon the ground that he had probable cause for commencing it, and that he had, since that time, sold the property which was the whole subject matter of the controversy in this suit.

       See Hammersly v. Barker, 2 Paige, 372.

   The Chancellor:—By the English practice, it is necessary in every case to bring the cause to a hearing, if the complainant wishes to get rid of costs ; although from the facts of the case, it clearly appears that if he had gone on, he would have been entitled to a decree. Dickson v. Parks 1 Ves. jun. 402; Anonymous, id. 140; Fidele v. Evans, 1 Cox’s Ca. 27. The 16th section of the act concerning costs, (1 R. L. 348,) provides, that upon the plaintiff’s dismissing his own bill in equity, or the defendants dismissing the same for want of prosecution, the plaintiff shall pay to the defendant full costs to be taxed. In the case of Arnoux v. Steinbrenner, (ante, 82,) this court decided, in analogy to the practice of the Supreme Court, that in the case of an executor who would not be liable in any event, and where the object of the suit was put an end to by circumstances not within his control, he might have his bill dismissed without the necessity of setting it down for a hearing.

In this case, it is certainly not clear that the complainant would be entitled to a decree at the hearing; but, on the contrary, the dissolution of the injunction shows that the late Chancellor was against him on the bill and answer. Without reference to the merits of the controversy, I am satisfied that the voluntary sale of the subject matter of the litigation, by the complainant, does not alter his rights in this respect, and that he is not entitled to dismiss his bill without costs.

The bill must be dismissed, with costs, unless he elects within twenty days to proceed to a hearing.


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    *D. Ashworth and others v. Wrigley.—J. Ashworth and others v. The Same.
    Dec. 19th.
    Where a defendant in a bill for an account and payment of demands founded on contract, has been discharged under the non-imprisonment act, a writ of nr exeat against him will be discharged.

    The writ will not be retained on a single affidavit that a certiorari has been allowed for the purpose of reserving the discharge obtained under the insolvent act.
    This court may hold the insolvent to bail in cases of fraud.
    But whether it would retain a ne exeat on the affidavit of mere irregularity in obtaining the discharge? Quaere.

    On the first of October, 1828, bills were filed in these causes, calling upon the defendant for an account and satisfaction of the proceeds of the sales of certain goods assigned to him by the complainants respectively, as their agent or factor, to be sold. On the bill and the petition presented therewith, the injunction master allowed a ne exeat. On the fourth of October the defendant was discharged by the recorder of New York, under the non-imprisonment act; and on the same day, and after the discharge, the defendant was arrested on the ne exeat, and compelled to give bail thereon. Upon an affidavit of these facts, the defendant’s counsel moved to discharge the writs of ne exeat. The motion was opposed upon an affidavit that a certiorari had been allowed by one of the justices of the Supreme Court, for the purpose of reversing the discharge of the recorder, and that the defendant had not answered, but had procured orders, for further time.

      D. Selden, for the motion.

      H. Bleecker, contra.

       2 R S. (4th ed.) 210, sec. 10; see also Luther v. Deyo, 19 Wen. 629; Hayden v. Palmer, 24 Wen, 364; O'Connor v. Lerbaine, 3 Edw. Ch. 230.

   The Chancellor :—There is no allegation of fraud in these bills; they are simply for an account and payment of demands founded on contract. There is therefore nothing *to prevent the discharge, if valid, operating to exempt the body of the defendant from imprisonment for these demands. The mere fact that a certiorari has been allowed, without stating in what the proceedings before the recorder were erroneous, so that this court could judge whether there -is probable cause to reverse the same, is not sufficient. The discharge is at least prima facie evidence that the defendant is exempt from imprisonment. If there was fraud or irregularity in obtaining it, there should have been an affidavit of the fact. Whether this court would have retained the writs on an affidavit of irregularity merely, it is not necessary now to inquire. Cases of fraud are provided for in the second section of the act. (Laws of 1819, page 116.) This court may hold to bail upon evidence of fraud.

The writs of the ne exeat must he discharged.

       2 R. S. (4th ed.) 210, sec. 10.


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    The Tradesman’s Bank and The Chemical Bank Merritt.
    January 7th.
    A defendant cannot object that another person, not a party to the suit, is also enjoined.
    If such a person makes a proper application, the court will discharge the injunction, so far as it affects his interest.
    Where the defendant, by a fraudulent overdrawing, obtained the complainant’s money and deposited it to his own credit in another institution, held, that the title to the property was not changed, and might be reclaimed by the owners.
    On a motion to dissolve an injunction, the court will not listen to an objection of misjoinder of complainants, where the merits of the case are clearly against the defendant.
    The bill in this cause charged the defendant with having fraudulently overdrawn the banks of the complainants, and that the identical bills obtained from those banks had been deposited by him in the Branch Bank of the United States in the city of New York, where they still remained to his credit on the books of that institution. On this bill the master allowed an injunction restraining the defendant from withdrawing or assigning that deposit, and prohibiting the Branch *Bank of the United States from paying out the same. A motion was now made for the dissolution of the injunction upon the matter of the bill only.

      J. Smith, for defendant:
    The injunction was improperly granted against the Branch Bank of the United States, they not being parties to the bill. (Fellows v. Fellows, 4 John. Ch. R. 25.) The complainants are merely simple contract creditors of the defendant, and having obtained no judgment against him, have acquired no lien either on his real or personal estate; and even if they had obtained a judgment, they could not, by the aid of this court, resort to the funds of the defendant in the Branch Bank of the United States for the satisfaction of their debt. The defendant has not perpetrated any such gross fraud as would call for the interposition of the powers of this court. The defendant overdrew the banks of the complainants in the ordinary course of business, with their consent; and their only remedy against him is by an action at law. The complainants cannot know and cannot establish that the same bills the witness drew from the banks of the complainants were deposited by him in the Branch Bank of the United States. It is not alleged that the defendant is insolvent. (Dawes v. Moran, 1 Hopk. Ch. R. 365.) There is a misjoinder of the complainants. They have separate and distinct demands against the defendant. Neither the bill nor the injunction can be sustained for this reason. (Brinckerhoff v. Brown, 6 John. Ch. R. 152.) No injunction can be granted, if the bill would be bad upon demurrer. (Harrison v. Hogg, 2 Ves. jun. 323; Dickens, 677; Birkley v. Presgrave, 1 East, 226; Dilly v. Doig, 2 Ves. jun. 486; 2 Anstruther, 469. And a misjoinder is a ground for a demurrer ore tenus. (Saxton v. Davis, 18 Ves. 72; 1 Hopk. Ch. R. 418.)

      J. Leveridge, for complainants:
    This is not the ordinary case of debtor and creditor, arising out of customary business transactions. Here no credit was given to the debtor, nor profit charged. The complainants did not consent to the creation of this debt. The defendant knew, from the established rules of business at the bank, that no checks were *paid beyond the funds of the drawer in the bank. In this case, a fraud was meditated by the defendant. He, possessing a knowledge of the state of his accounts at the banks of the complainants, wilfully overdrew. The cases of Brinckerhoff v. Brown, (4 John. Ch. R. 671,) of Williams v. Brown, (id. 682,) and of McDermut v. Strong, (id. 687,) arose from ordinary business transactions, and are therefore not applicable to this case. The defendant has not answered the bill; he thus admits the fraud; and wherever fraud appears, and the remedy at law is insufficient, Chancery will grant relief. To turn the complainants over to their action at law, would amount to a denial of justice. Injunctions have been granted upon the application of simple contract creditors. (Taylor v. Jones, 2 Atk. 600.) The complainants have shown a case of gross fraud, and they have shown that the identical money obtained from the banks of the complainants was deposited in the United States Branch Bank. The court will therefore retain the injunction.
   The Chancellor :—The objection that the United States Branch Bank is enjoined, although not a party defendant, does not properly come from the party moving to dissolve the injunction allowed in this cause. If the defendant does not violate the injunction, the deposit cannot be withdrawn from the United States Branch Bank, and the injunction as to that bank will be nugatory. Where persons not parties to the bill are injuriously affected by an injunction, if they apply in a proper manner, the court will grant them relief.

If the money was fraudulently obtained from the complainants, as alleged in the bill, the property was not changed by paying it out on the draft, and they may follow it into the hands of any person who has not taken it in the course of business, and allowed an equivalent therefor, without notice of the fraud. The complainants are not creditors at large, but have a specific lien upon the fund in the case stated in the bill.

As to the misjoinder of the complainants, it is a matter of form only, and does not go to the merits of the question upon which the injunction rests. I am not certain that in a clear case of misjoinder of complainants, the defendant *would be entitled to have the injunction dissolved as a matter of course, before demurrer or answer. In this case, the fact that the moneys alleged to have been obtained from the respective complainants by fraud were deposited together, forming an entire fund, on which both have equitable claims, may perhaps be sufficient to authorize tnem to proceed jointly.

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


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    Beck v. J. & B. C. Burdett.
    January 7th
    Where property is subject to an execution, and a fraudulent obstruction is interposed to prevent the sale, a creditor may file his bill here to remove the obstruction as soon as he has obtained a specific lien upon the property, by the issuing of his execution.
    But if the property is not a subject of levy and sale on execution, the creditor must show his remedy at law exhausted by an actual return of the execution unsatisfied, before he can file a bill in this court to reach the equitable property of the debtor.
    If such properly is not a subject of sale by the sheriff, the creditor obtains no specific lien or preference until his execution is returned unsatisfied, and he has followed up his remedy by the commencement of a suit in this court, to reach the debtor’s equitable assets.

    When a debtor in failing circumstances assigns an unreasonable amount of property to satisfy a single creditor, it is evidence of fraud; but if no more than is supposed to be sufficient to satisfy the debt is assigned, a mere hypothetical reservation of the surplus, if any there should be, to the debtor, would not render the assignment void.
    In July, 1825, B. 0. Burdett gave to the complainant a note for a bona fide debt. A judgment was obtained thereon in the Supreme Court in May, 1826, and a fieri facias was issued to the sheriff of New York, returnable on the 13th of the same month. The sheriff returned the execution unsatisfied. The bill in this cause was filed after the return day of the execution, but before the writ was actually returned and filed in the clerk’s office. Before the commencement of the suit upon the note B. C. Burdett failed, and assigned all his property, consisting of goods, debts and choses in action to J. Burdett, in trust to collect the debt and sell the goods, and apply the proceeds to the payment of certain *creditors named in a schedule annexed to the assignment, and to pay the residue of the proceeds, if any, to the assignor. Goods to the value of $600 remained unsold in the hands of the assignee at the time of issuing the execution. The object of the bill was to set aside the assignment. The complainant prayed that the same might be declared fraudulent as against him, and that the goods remaining unsold might be applied in satisfaction of the judgment; and, if the same were insufficient for the purpose, that J. Burdett might be decreed to pay the balance of the judgment out of the proceeds of other property obtained under the assignment. The cause was heard on pleadings and proofs.

      C. Baldwin, for the complainant:
    The assignment from B. C. Burdett to Jacob Burdett is void, because it does not provide for all the creditors of B. C. Burdett, and because it reserves the surplus to B. C. Burdett after paying certain specified creditors. An assignment with intent to protect property from creditors is void by statute. An insolvent may prefer one creditor to another, but he cannot make an asignment, either altogether in trust for himself, or partly in trust for himself and partly for the .payment of an honest creditor. If void in part, it is void in toto. (Mackay v. Cairnes, 5 Cowen, 547.) Any reservation by an insolvent in an assignment, in favor of himself, renders the assignment void. (2 Kent. Com. 421.) If the assignment is void in its inception, subsequent events cannot make it good; such as the property assigned being insufficient to satisfy the confidential creditors. If so, the debtor or his assignee can make a fraudulent assignment good by not collecting more than is sufficient to satisfy the preferred creditors. This would hold out a temptation to sacrifice the property, and thus violate the trust. The property in this case assigned, exceeded in value the debts for the security of which it was assigned. The reservation in the, assignment shows that this was the belief and understanding of the parties to it. (Hyslop v. Clarke, 14 John. 458; Austin v. Bell, 20 John. 442, per Spencer, Ch. J.) A creditor is not bound to levy on property fraudulently assigned, before applying for relief in Chancery. *(Haddan v. Spader, 20 John. 554, 572; 73, per Platt, J.; Donavan v. Finn, Hopk. Rep. 77.) It was not necessary that the fi. fa. in this case should have been actually returned and filed before the filing of the bill. It was sufficient if the return day had passed, and there was no property which it could reach. (Mitf. Pl. 102, 3d Lond. ed.; 3 Atk. 200; Cooper’s Eq. Pl. 149, 1st ed.; Brinckerhoff v. Brown, 4 John. Ch. R. 671; Williams v. Brown, 4 John. Ch. R. 682.) Suppose the execution was lost, then it could not have been filed. The case of Balch v. Wastall, (1 Pr. Wms. 445,) is the only one in which a dictum can be found that a return of the execution is necessary

      J. L. Mason for defendants:
    There was no fraud in fact in this case; and there being in the assignment no absolute reservation in favor of the assignor, there is no fraud in law. A debtor may prefer one creditor to another. If the assignment had contained no reservation whatever, and there had been a surplus, a resulting trust would have arisen in favor of the debtor. The reservation, therefore, in this assignment is mere surplusage. (Wilkins v. Ferris, 5 John. 335; Wilder v. Winne, 6 Cowen, 284; Hendricks v. Robinson, 2 John. Ch. Rep. 283.) If the security be not manifestly excessive in favor of a particular creditor, and there should happen to be a surplus, it would not vitiate the assignment if the transaction was bona fide. Stevens v. Bell, 6 Mass. R. 339.)
    In this case the assignment was only a part of the debtor’s property. The court will not presume in the absence of proof, it was of the whole property of the debtor. (Wilkes & Fontaine v. Ferris, 5 John. 335.) The creditor, Jacob Burdett, did not realize bis debt out of the property assigned to him, which fact repels all presumption of fraud. The bill in this case was prematurely filed, it being before the actual return of the execution unsatisfied. The complainant is in all cases bound to show that he sued out execution, and pursued it to every possible extent before he filed his bill. (Brinckerhoff v. Brown, Ch. R. 671; Williams v. Brown, 4 John. Ch. R. 681; McDermut v. Strong, 4 John. Ch. R. 691; Hadden v. Spader, 20 John. 554; Angel v. Draper, 1 Vernon, 399.)

        Grosvenor v. Allen, 9 Paige, 74; see Ellis v. Tousley, ante, 280, n.

        Butler v. Stoddard, 7 Paige, 163.

   *The Ghaucelloe:—The defendants deny all actual fraud in relation to the assignment, and there is no evidence from which it can be inferred; therefore, the only questions of any importance in this case are as to the right of the complainant to commence proceedings here, before the execution was returned by the sheriff; and whether the assignment is void, in consequence of the reservation of the surplus to the assignor, without making any provision for the payment of the complainant’s debt.

There are two classes of cases where a plaintiff is permitted to come into this court for relief, after he has proceeded to judgment and execution at law without obtaining satisfaction of his debt. In one case the issuing of the execution gives to the plaintiff a lien upon the property, but he is compelled to come here for the purpose of removing some obstruction, fraudulently or inequitably interposed to prevent a sale on the execution. In the other, the plaintiff comes here to obtain satisfaction of his debt out of property of the defendant, which cannot be reached by execution at law. In the latter case, his right to relief here depends upon the fact of his having exhausted his legal remedies, without being able to obtain satisfaction of his judgment. In the first case, the plaintiff may come into this court for relief, immediately after he has obtained a lien upon the property by the issuing of an execution to the sheriff of the county where the same is situated; and the obstruction being removed, he may proceed to enforce the execution by a sale of the property, although an actual levy is probably necessary to enable him to hold the property against other execution creditors on bona, fide purchasers. Angel v. Draper, (1 Vern. 399,) and Shirley v. Watts, (3 Atk. 200,) are cases of this description. In the first, a fraudulent assignment was interposed to prevent a sale of the defendant’s property on execution; and in the last case it became necessary to redeem a term for years in a leasehold property, from a lien of a prior mortgage. In both these cases the plaintiffs were allowed to come into equity for relief, before the executions were returned unsatisfied. McDermut v. Strong, (4 John. Ch. R. 687,) belongs to the other class of cases; for although an attempt was made to *levy the execution upon the defendant’s interest in the vessel assigned, it is clear he had no interest which was a proper subject of seizure and sale on the execution. The issuing of an execution, or even a formal levy, can create no lien upon a chose in action, or a mere equitable interest in personal property, which is not liable to be sold on execution. In such cases, the actual return of the execution unsatisfied, is necessary to give this court jurisdiction to decree satisfaction out of the equitable property of the defendant. Such is the construction recently adopted by the legislature in such cases. (R. S. part 3, ch. 1, tit. 2, sec. 38.) And a similar principle is adopted in that part of the Revised Statutes which enables creditors to reach the equitable interest of persons holding lands under contracts for the purchase thereof. (R. S. part 2, ch. 1, tit. 4, sec. 4.) In all these cases, where the property is not liable to an executian at law, the plaintiff obtains no lien upon the property or fund, by the issuing or return of the execution. But it is the filing of the bill in equity, after the return of the execution at law, which gives to the plaintiff a specific lien. (Per Lord Hardwicke in Edgell v. Haywood, 3 Atk. Rep. 357.)

The bill in this case contains the proper allegation that the execution had been returned unsatisfied. That fact is denied by the answer; and the evidence in the case supports that denial. The bill, therefore, was prematurely filed, and ho relief can be granted thereon, except as to the goods which remained unsold at the time the execution issued. If the assignment was fraudulent, they are hable to be seized and sold on the execution. J. Burdett has since sold those goods; and if he improperly covered them from a levy and sale by the sheriff, he must account to the plaintiff for their value. It, therefore, becomes necessary for the court to examine the other question in this cause.

If a debtor in failing circumstances makes an assignment of his property for the benefit of part of his creditors only, and the value of the property assigned is more than the parties could have reasonably supposed necessary to satisfy the claims of those creditors, fraud may be inferred from that *circumstance alone, unless a satisfactory excuse is shown for the transfer of the excess. But in this case it was, at the time of the assignment, and still is doubtful, whether the property assigned was sufficient to satisfy the claims of the creditors for whose benefit the assignment was made. Their debts were rising of $26,000, and the whole nominal amount of property and demands assigned, including $21,000 of outstanding claims, is short of $34,000. It was therefore not probable there would be any excess, after making due allowance for bad debts, and deducting the expenses of collection, and of executing the trust.

Does then a mere hypothetical reservation of the surplus, if any there should be, to the assignor, vitiate the assignment ? It certainly does not alter the legal liability of the assignee, because, without that provision, he would inequity be compelled to account for the surplus. In Wilkes & Fontaine v. Ferris, (5 John. Rep. 335,) it was settled, that am implied reservation of the residue to the assignor did not render the assignment void; and in Stevens and others v. Bell, (6 Mass. Rep. 339,) and in Passmore v. Eldridge, (12 Serg. & Rawle, 198,) although express reservations of the surplus were made to the assignors, the assignments were sustained.

The case of Mackie v. Cairns, (5 Cowen, 547,) establishes the principle that an insolvent cannot legally make a provision for himself or family, even for a limited period, out of the property which belongs to his creditors; and that such a provision) contained in a general assignment of his property, rendered the assignment void as against creditors who had not assented thereto. But on a careful review of the cases on this subject, I am satisfied that the assignment complained of in this case was a valid instrument, and that it does not come within the principle of the decision in Mackie v. Cairns.

The bill in this cause being prematurely filed, the complainant is not in this suit entitled to an account and satisfaction of his debt, out of the surplus of the assigned property, if any there should be. His bill must therefore be dismissed with costs.

       It has been repeatedly held, that an assignment of part, or all the debtor’s estate, providing for only a part of the creditors, and, without making provision for the rest, directing the assignee to pay back or re-assign to the assignor the surplus remaining after satisfying the debts provided for, is fraudulent and void. Goodrich v. Downs, 6 Hill, 438; Strong v. Skinner, 4 Barb. S. C. R. 546; Lansing v. Woodworth, 1 Sanf. Ch. 43; Barny v. Griffin, 4 id. 552; S. C., 2 Comst. 365; Leitch v. Hollister, 4 id. 211. The same principle prevails in Ohio. Suydam v. Martin, Wright Ch. R. 698.


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    *The Fulton Bank v. The New York and Sharon Canal Company and others.
    January 7th.
    An. injunction against a corporation cannot be dissolved on bill and answer, unless the answer is duly verified by the oath of some of the corporators who are acquainted with the facts stated therein.
    This was a motion to dissolve an injunction upon bill and answer. Brown and Reed, two former officers of the New York and Sharon Canal Company, were made defendants for the sake of discovery merely. The canal company put in their answer under the corporate seal; and the present secretary, who was not an officer of the company at the time of the transactions which were the foundation of the injunction, swore that the matters stated in the answer relating to his acts and deeds were true, and so far as related to the acts and deeds of other persons, he believed them to be true. The president, who was an officer of the company at the time of those transactions, swore to the seal of the company affixed to the answer, but said nothing as to the truth of the matters stated therein. The separate answer of Brown admitted the truth of the principal allegations contained in the bill.

      D. B. Ogden, for complainants.

      S. P. Staples, for the New York and Sharon Canal Company.
   The Chancellor :—The case of a corporation defendant is an anomaly in the practice in relation to the dissolution of an injunction. In most cases the injunction is dissolved as a matter of course, if the answer is perfect, and denies all the equity of the bill in the points upon which the injunction rests. It is not, however, a matter of course to dissolve the injunction where the defendant acts in a representative character, and founds his denial of the equity of the bill upon information and belief only. Corporations answer under their seal and without oath. They are therefore at liberty *to deny every thing contained in the bill, whether true or false. Neither can any discovery be compelled, except through the medium of their agents and officers, and by making them parties defendants. But no dissolution of the injunction can be obtained upon the answer of a corporation, which is not duly verified by the oath of some officer of the corporation, or other person who is acquainted with the facts contained therein. There can be no hardship in this rule as applied to corporations, as it only puts them in the same situation with other parties. Other defendants can only make a positive denial as to facts within their own knowledge. In relation to every other matter, they must answer as to information and belief. ' If the agents of the institution, under whose direction the answer is put in, are acquainted with the facts, so as to justify a positive denial in the answer, they can verify its truth by a positive affidavit; and if none of the officers are acquainted with the facts, their information and belief can have no greater effect than that of ordinary defendants, however positive the denial in the answer may be.

In this case, the officer of the institution, who was such at the time referred to in the complainants’ bill, has studiously avoided saying any thing as to the truth of the answer, leaving it to the secretary, who knows nothing of its truth or falsehood, to express his belief on the subject.

The motion to dissolve the injunction must be denied, with costs.


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    Keeler and Freeman v. Field and others.
    January 7th.
    Where a merchant contracted for goods, the price to be secured by his note indorsed by B. and C., and the goods in the meantime were forwarded to his residence, held, that the property was not changed until the delivery of the note, and that B. & C. to whom he had assigned the goods to secure an antecedent debt, could not hold them against the vendor.
    The defendant Field, a merchant in Marcellus, applied to the complainants at New York, to purchase a quantity of goods on credit. They were unwilling to let the goods go on his individual credit, but consented to put up the goods and ^forward them to him at Marcellus, he engaging, on his return home, to send them his notes, indorsed by Bixby and Chapman, for the amount. The goods were accordingly selected by Field, and notes for the amount drawn by the complainants and delivered to him, to be returned to them after being thus indorsed. The goods were put up and forwarded to Field at Marcellus, and were duly received by him. But instead of sending the notes to the complainants, he never requested Bixby and Chapman to indorse them; and soon after the goods arrived, he assigned the same, together with his whole stock in trade, to Bixby and Chapman, to secure them for responsibilities which they had previously incurred, and to pay the surplus, if any, to his creditors generally. The complainants filed their bill in this cause, and prayed an injunction to prevent Bixby and Chapman from selling the goods thus obtained. The answers admitted the principal matters alleged in the bill, but the defendants, Bixby and Chapman, denied all knowledge or information as to the complainants’ rights, or the manner in which the goods had been obtained, until since the filing of the bill.

      Wells and Bushnell, for the complainants:
    The complainants have an equitable lien on the goods sold to the defendant Field. The sale was upon condition, and the condition not having been performed, the title to the goods never passed to Field; and Field, therefore, never acquired any right which could be conveyed by a voluntary assignment to the defendants Bixby and Chapman. A voluntary assignment of goods by an insolvent debtor, to pay other creditors than the person from whom they were purchased, was an act of fraud upon him, and could not defeat his equitable lien. (Haggerty v. Palmer, 6 John. Ch. R. 437.) Fraud, in cases of this kind, will be presumed in law, except as to bona fide purchasers for a valuable consideration, and without notice. (Hussey v. Thornton, 4 Mass. R. 405; Palmer v. Hand, 13 John. R. 434; Coddington v. Bay, 20 John. R. 637.) An assignment in bankruptcy does not defeat an equitable lien. (Lord Seaforth, ex parte, 19 Ves. 235.) Neither does an assignment under our insolvent laws, nor an attachment, nor a *judgment. (Kip v. The Bank of New York, 10 John. R. 63; Jackson v. Dubois, 4 John. R. 216; Buffington v. Gerrish, 15 Mass. R. 156.) Persons taking under an act of law, without notice of an equitable lien, take subject to it. Sugden on Vendors, 398.) The defendants, Bixby and Chapman, have confounded a part of the goods with their own. The rule of law requires them to distinguish the goods so mixed, or to lose their own. (Hart v. Ten Eyck, 2 John. Ch. R. 62.) The circumstances of the case show clearly fraud in fact. The costs ought to be charged upon the goods assigned to Bixby and Chapman, exclusive of the goods of the complainants ; and if they prove insufficient, then upon the assignees personally. They, by improperly refusing to deliver up the goods in question, have made themselves liable for the costs. (Livingston v. Byrne, 11 John. 555; Gray v. Thompson, 1 John. Ch. R. 82; Tiernan v. Wilson, 6 John. Ch. R. 411.)

      L. H. Sanford, for defendants Bixby and Chapman:
    There is no fraud imputable to Field. The property in the goods vested in him upon delivery; and the complainants, by giving possession of the goods to Field, lost all lien upon them for the purchase-money, although Field failed in performing his part of the contract. The only remedy of the complainants is an action against Field. If they had intended to retain their property in the goods, they should have refused to deliver them until the notes were obtained. (Chapman v. Lathrop, 6 Cowen, 110, 115; Conyers v. Ennis, 2 Mason, 236; Hussey v. Thornton, 4 Mass. R. 405.) The defendants, Bixby and Chapman, are honafide assignees without notice, and are protected, although the sale to Field should be adjudged fraudulent. The rule is well settled that, although a person obtains goods by a fraudulent purchase, which is void as to himself, yet if he afterwards sell them to a bona fide purchaser without notice of the fraud, the property will pass to the latter. (Mowry and others v. Walsh, 8 Cowen, 238; Hollingsworth v. Napier, 3 Caines, 182; Parker v. Patrick, 5 T. R. 175.) Field, had a right to prefer Bixby and Chapman to his other creditors. (Hendrick v. Robinson, 2 John. Ch. R. 283; 17 John. R. 438; Mackie v. Cairns, 5 Cowen, 547.) The complainants have made a *groundless imputation of fraud against the defendants Bixby and Chapman, and, therefore, ought to be charged with costs. (Mayor, &c., of Colchester v. Lowten, 1 Ves. & Beame, 226, 248; Conyers v. Ennis, 2 Mason, 236; Chapman v. Lathrop, 6 Cowen, 110, 116, and note.) Bixby and Chapman are in effect trustees, and should not, therefore, be decreed to pay costs. (Minuse v. Cox, 5 John. Ch. R. 541.
   The Chancellor :—The sale of the goods in this case was conditional; and until the delivery of the indorsed notes the vendors retained a lien which could not be defeated by the voluntary assignment of the goods by Field, to secure antecedent debts or responsibilities. The case of Haggerty v. Palmer, (6 John. Ch. Rep. 437,) is in point, and shows that the assignees cannot retain the goods obtained under such circumstances. It was a fraud on the part of Field, to assign the goods before he had procured and sent the indorsed notes. Although the other defendants were not aware of the fraud, at the time they took the assignment, they did not purchase and pay for the goods in the ordinary course of business, and are not entitled to retain them against the equitable claim of the vendors.

They are, however, only answerable for the goods set out in the schedule annexed to their answers, as there is no evidence in the cause, or admission in the answers, from which it can be inferred that they received any other part of the goods. As the complainants did not give informatian of their rights, and request a delivery of the goods previous to the filing of their bill, Bixby and Chapman are not chargeable with any part of the complainant’s costs; but having resisted a legal claim, after they had obtained that information, they must bear their own costs.

There must be a decree that Bixby and Chapman deliver to the complainants, at Marcellus, upon request, the goods mentioned in schedule A., annexed to their answer; and that the defendant Field, pay to the complainants the interest on the whole value of the goods received by him from the complainants, from the time the goods were assigned by him to Bixby and Chapman, until the delivery of that part of the goods to the complainants; and that he also pay for the balance of goods which are not so delivered, with interest thereon, from the time when the goods mentioned in schedule A. are returned to the complainants.

       See Russell v. Minor, 22 Wen. 659; Corlies v. Gardner, 2 Hall, (N. Y.,) 345. But if the vendor does not demand the note at the time of delivery, it is a waiver of the condition, and the goods pass to the vendee. Lupin v. Marie, 6 Wen. 77; Hennequin v. Sands, 25 id. 640; see also Mills v. Hallock, 3 Edw. Ch. 652.


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    Coutant v. Schuyler and others.
    January 20th.
    A promissory note or a bond is a proper subject of a gift, causa mortis; and the delivery may be to a third person for the use of the intended donee.
    But claims of this kind are admitted with great caution; and where some doubt was thrown on the transaction, a feigned issue was awarded.
    The bill in this cause was filed against the administrators of W. Reynolds, deceased, and David Marsh, to recover the amount of a promissory note given by the latter to Reynolds, and which the complainant alleged was given by the intestate, in his last sickness, to Marsh, to be delivered to her as a gift, causa mortis.

    The questions raised on the argument of the cause were:
    1. Whether a promissory note was a proper subject.of such gift:

      2. Whether it was in fact ever delivered for that purpose:
    8. Whether the intestate, was of sound and disposing mind and memory at the time he made such gift.
    Much testimony was taken in relation to the two latter points. The amount of the note was paid into court by Marsh; and he was examined as a witness for the complainant. The cause was heard on pleadings and proofs.

      J. Smith, for complainant:
    A promissory note may be the subject of a gift, causa mortis. Even a promissory note payable to order and not indorsed, would now be a proper subject of a gift, causa mortis, and the donee might prosecute the note in the names of the executors or administrators of the donor. In this case, an indorsement was not necessary, as the note was delivered to the maker, who was made a trustee for the donee, and accepted the trust. The reasons for the decision, that a promissory note could not be the subject of *a donatio causa mortis do not now exist. At the time this decision was first made in the English courts, the statute of Ann had not been passed, making notes and bills of exchange negotiable. At that time, also, choses in action were not assignable. Now, choses in action are assignable, and the mere delivery of a bond or note amounts to a valid assignment. Both these alterations in the law having since been made, the reason of the rule, that a promissory note could not be the subject of a gift causa mortis, having ceased, the rule itself ought to cease. (Jones v. Selden, Prec. in Chan. 300, year 1710; Drury v. Smith, 1 Pr. Wms. 404, in 1717; Lawson v. Lawton, 1 Pr. Wms. 409, in 1718; Miller v. Miller, 3 Pr. Wms. 366, in 1735; 2 Bridg. Index, 229; (Am. ed.) Wright v. Wright, 1 Cowen, 598; Snellgrove v. Bailey, 3 Atk. 214, in 1744; Wells v. Tucker, 3 Binney, 366; Cowen’s Treatise, 35; Canfield v. Monger, 12 John. 346; Martin v. Hawks, 15 John. 405. The gift of a bond causa mortis, has been held to be valid. (Gardener v. Parker, 3 Mad. R. 184; Ward v. Turner, 2
      Ves. sen. 442; 2 Kent. Com. 361, 2; 3 Term R. 153.) A note indorsed has been decided to be a proper subject of a gift, causa mortis. (2 Bridg. Index, 229, Am. ed. Wright v. Wright, 1 Cowen, 598.) In this case the gift, if not valid as a donatio causa mortis, was good as an equitable assignment, having been made in performance of a previous promise of a settlement, in consideration of a marriage engagement. (Rob. on. Frauds, 137, 8.

      R. Bogradus, for defendant:
    In gifts causa mortis, the donor intends to give the moneys due, and not the mere evidences of debt. The thing intended to be given must be actually delivered. The delivery of the evidences of debt are not sufficient to sustain a donatio causa mortis. (2 Kent’s Com. 342 and 4.) These gifts are dangerous, and are not to be encouraged. The result of the decisions are, that a chose in action cannot be the subject of a gift causa mortis; (Tate v. Tate, 2 Ves. jun. 116; Miller v. Miller, 3 Pr. Wms. 356; Antrobus v. Smith, 12 Ves. 39; Noyes’ R. 67; Cottine v. Miller, 1 Mad. R. 176; Pearsons v. Pearsons, 7 John. R. 26; Fink v. Cox, 18 John. 145; Hawkins v. Blewitt, 2 Espinasse’s *R. 663; Noble v. Smith, 2 John. 52; Cooper v. Goodwin, 1 Swan. 486; Collins v. Plummer, 1 Pr. Wms. 104; Blount v. Burrow, 1 Ves. jun. 548; Ward v. Turner, 2 Ves. sen. 442; Tate v. Gilbert, 2 Ves. jun. 111; Bunn v. Markham, (7 Taunt. 224.) A gift is not a contract, (2 Kent’s Com. 352;) therefore the argument that choses in action are now assignable has no application. Here was only a promise to make a gift, which is not binding. (7 John. 26.) The note was obtained from the testator by undue influence. The gift is therefore void for that reason; (Morse v. Royal, 12 Ves. 372; Parcell v. McNamard, 14 Ves. 92; Wright v. Proud, 13 Ves. 136.) Also, the testator was not possessed of a sound mind and memory at the time he made the gift in question.
   The Chancellor :—The first question which arises in this case is, whether the note of a third person is a proper subject of a gift causet mortis. Without taking the trouble to go through all the English cases on the question, whether a chose in action is the proper subject of such a gift, it is sufficient to say it has been decided there, that a promissory note was not a proper subject for such a gift, and that abondwas; (Miller v. Miller, 1 Pr. Wms. 358; Snellgrove v. Bailey, 3 Atk. 214; Gardner v. Parker, 3 Mad. Rep. 184.) In the case of Wells v. Tucker, (3 Binney, 366,) the Supreme Court of Pennsylvania held the gift of a bond valid. And in onr own state, in the case of Wright v. Wright, (1 Cowen, 598,) it was held, that the testator’s own note was a valid gift causa mortis. Notwithstanding the attempts which have been made in England to distinguish between a promissory note and a bond, in relation to the validity of the gift of a chose in action, there cannot, in reason, be any difference. A gift of either is valid as a symbolical delivery of the debt due on the note or bond, and all the delivery of which the subject is capable.

In Wells v. Tucker, it was also decided that a gift to a third person for the use of the intended donee was a valid gift. The complainant is entitled to the amount due on the note, if it was actually delivered by the intestate to Marsh for her *use, as alleged in the bill, provided Reynolds was of sound disposing mind and memory, and no improper advantage was taken of his situation.

On this question the testimony is not perfectly satisfactory; and claims of this description must always be admitted with the greatest caution. I do not therefore think proper to dispose of this part of the case without giving the parties an opportunity to litigate the question of fact before a jury. I shall direct a feigned issue to be made up between the complainant and the administrators, and tried at the circuit in New York, unless both parties consent to have the trial in the Superior Court of that city, to ascertain whether the testator was of sound and disposing mind and memory, and did freely and voluntarily deliver the note in question to David Marsh, in his last sickness, and in contemplation of death, for the use of the complainant, as a gift to her, to take effect in case of his death; and either party is to be at liberty to examine the defendants Slocum and Marsh as witnesses on the trial of the said issue.

       Bond and mortgage will pass by a delivery donatio causa mortis. 1 Bligh, 597; Duffield v. Hicks, 1 Dow. N. S. 1. As to the requisites of a valid donatio causa mortis. See note to Walter v. Hodge, 2 Swanston, 106.

       This case is overruled. See Craig v. Craig, 3 Barb. Ch. 78; see Harris v. Clark, 3 Comst. 93. There held that; the executory promise of the donor; i. e., his own draft on a third party, in favor of the donee, intended as a donatio causa mortis, is not valid.

       In Connecticut, it has been held, that the promissory note of a third person, though not payable to bearer, nor so indorsed as to transfer the legal title by delivery merely, may be the subject of a donatio causa mortis. Brown v. Brown, 18 Conn. 410; see also Craig v. Craig, 3 Barb. Ch. 78, 117, 118.


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    Webster v. Wise and Ford.
    January 20th.
    Pending a treaty of purchase, a third person took a confession of judgment from the vendor, and fraudulently concealed the fact from the vendee until after the sale, for the purpose of enforcing the judgment against the land in his hands. On a bill filed against the judgment creditor and his assignee, they were decreed to release the land from the lien of the judgment.
    The assignee of a judgment takes it subject to all the equities which existed against it in the hands of the assignor.
    Where the assignee, after notice of the fraud, attempted to enforce the judgment against the land, he was decreed to pay costs to the complainant.
    The complainant purchased from Jonah Phelps a piece of land in Columbia county, for which he afterwards paid the full amount of the purchase-money. While the complainant was in treaty for the purchase, the defendant Wise, a grandson of Phelps, obtained from the latter a judgment bond for $425, which he caused to be entered up in the Supreme Court before the deed upon the sale was executed. He *afberwards assigned the judgment, or part thereof, to the defendant Ford. The latter caused an execution to be taken out and levied on the complainant’s land, and the same was afterwards sold and bid in by Ford. No certificate was given by the sheriff on the sale; but about two years afterwards an application was made to the Supreme Court, without any notice to the complainant, and the sheriff was ordered to give a certificate and file a duplicate thereof, nunc pro tune. A short time after such certificate was filed, the sheriff gave a deed in pursuance of the sale; and Ford was proceeding to recover possession of the land, when the bill in this cause was filed for the purpose of obtaining an injunction and to set aside the judgment and sale.

      E. Williams, for the complainant.

      A. P. Holdridge, for the defendants.
   The Chancellor :—Without going into a detail of all the testimony in this case, it is sufficient to say, it satisfies me beyond all doubt that the judgment against Phelps wás fraudulent and void as against the complainant. If the consideration was not wholly fictitious, there is much reason to believe the greater part of the pretended debt was made tip for the occasion. That it was the intention of Wise to obtain the judgment, and use it for the purpose of charging the land which the complainant was about to purchase, without letting him know of its existence until the purchase was completed and the consideration paid, is positively proved by the testimony of one witness. This, with the testimony of other witnesses to collateral facts, and the confessions of the defendant, independent of the very strong impression of fraud which the whole transaction bears on its face, is sufficient to discredit the answer of Wise.

Ford, as the assignee of the judgment, is in no better situation than Wise; for it is well settled that the assignee of a chose in action takes it subject to all equities which existed against it in the hands of the assignor. There must be a decree that the defendants be perpetually enjoined from proceeding against the property of the complainant on that *judgment, or from proceeding at law against him, or any person claiming under him, to recover the possession of the premises. The judgment must be declared void as against the complainant, and the defendant Ford must release and reconvey to him all right and title to the premises acquired under the judgment and execution, and release the same from the lien of the judgment.

If Ford had endeavored in good faith to collect the judgment, or the amount actually advanced by him to Wise, out of the other property of Phelps, I should not think it right to charge him, with costs. But as he adopted a different course, and united with Wise in setting up a fraudulent and unjust claim against the lands of the complainant, and has driven him to the expense of this litigation, he must be answerable for the costs of this suit, if it should turn out that Wise is unable to pay the same. The decree must be so framed as to charge the costs against Wise in the first instance; and if they cannot be collected by execution against him, Ford must pay the same, with liberty to prosecute the decree therefor against his co-defendant, in case he shall be obliged to pay the costs to the complainant.


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    Haggerty and others v. Duane and Furniss.
    January 20th.
    Where the subject of litigation was a fund in the hands of an insolvent assignee, who was a defendant in the cause and had no personal interest therein, but claimed the fund for the benefit of others, the money was ordered to be brought into court, and invested, to abide the further order of the court.
    The defendant Furniss purchased a quantity of goods at auction of the complainants on the 5th of September, 1828, to be paid for in indorsed notes. The goods were sent home according to the custom on such sales at New York. A few days after the sale, one of the complainants called for the notes, but they were not ready. On Saturday, the 20th of September, he again called and demanded that either the notes should be given or the goods returned, and intimated that if one. or the other was not done, he should file a bill in this court to compel it. Eurniss did not comply with *this request, and a bill was immediately filed and an injunction issued. In the mean time, and before the subpoena and injunction could be served, Eurniss assigned the goods to the defendant Duane, in trust to pay certain alleged confidential creditors; and on Sunday night the goods were removed to Philadelphia and sold, and Duane received the proceeds, which are still in his hands. On the 26th of September, the complainants filed a supplemental bill setting out these facts, and making Duane a party to the suit; and an injunction was granted, restraining him from parting with the proceeds. The answer of Duane admitted the assignment, and that he had no interest therein, except as trustee; that he had sold the goods, and now had in his hands, as the nett amount of the proceeds of such sale, $596 27; which he held for the sole use of the creditors named in the assignment.
    The complainants presented a petition, setting forth the proceedings in the cause, and that on a hearing they would be able to substantiate their rights as set forth in their bill, but that the defendant Furniss was insolvent, and that Duane, since the putting in of his answer, had stopped payment, and was also insolvent; and that they apprehended and believed that before this cause could be brought to a hearing, the funds in his hands would be lost. And they prayed that the fund might be brought into court and invested, to abide the final decision of the cause.

      H. Bleecker, for the complainants.

      A. Van Vechten, for defendants.
   The Chancellor :—It is not necessary to go into the merits of the case on this application. The principal on which the complainants claim an equitable lien on the property sold has been frequently recognized by this court, and was recently asserted in the case of Keeler & Freeman v. Field & others, (ante, 312.) It was also recognized and applied by the Supreme Court of Massachusetts in Whitwell v. Vincent, 4 Pickering’s Rep. 449.) For the purpose of this motion it is sufficient that the bill and answer show a' case on the part of the defendants which is at least liable to strong ^suspicion. The money is now lying unproductive in the hands of Duane; it is, therefore, for the interest of whoever may be entitled to this fund, that it should be placed out of danger. If it shall hereafter appear that it belongs to the creditors named in the schedule, they will receive it, together with the interest which may accrue thereon in the meantime. No injury can arise to any person by ordering the money to be paid into court. It clearly ought not to remain under the control of an insolvent assignee. I shall, therefore, direct an order to be entered, requiring the defendant Duane to pay the money to the assistant register within ten days after service of a copy of the order; and that the assistant register put it out at interest on bond and mortgage, or invest it in public stock, to abide the further order of the court.


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    Richards v. Barlow and others.
    On a reference of exceptions to an answer, if part of the exceptions are allowed by the master, the complainant is entitled to costs on the exceptions allowed, and neither party is entitled to costs as to those which are disallowed.

      If some of the exceptions are disallowed, and none of them are allowed in full, the defendant is entitled to his costs on the reference.
    On exceptions to a report, each party is entitled to the costs of the hearing as to the exceptions decided in his favor, which costs are to be off set against each other.
    Where the costs of exceptions on each side would be nearly equal, the usual practice of the court is to give no costs to either party.
    The subpoena for a better answer may be taken out immediately on filing the master’s report, and may be served on the solicitor.
    The subpoena for costs must be served on the defendant in person, and the amount of costs, as ascertained on taxation, must be inserted therein.
    On taxation of costs, no allowance is to be made for copies of pleadings or proceedings, except where they are actually furnished by order of the court, or in the usual course of practice.
    Copies of pleadings of the master are not allowed on a reference of exceptions to an answer, unless in cases of difficulty where copies are required by him, and are actually made for that purpose.
    On exceptions to a master’s report on exceptions, the solicitor is only entitled to the usual fee for attendance on special motions.
    Only one solicitor’s and counsel fee can be charged on a reference; and only one fee can be allowed to the master, except by the special order of the court.
    On references of exceptions to answer, no objections are taken to the draft of the master’s report and copies of such draft for the parties are not taxable.
    *This was an application to vacate an order for costs, and an order for an attachment, and for a retaxation. The facts in the case sufficiently appear in the opinion of the court.

      H. Bleecker, for the complainant.

      W. Silliman, for the defendants.
   The Chancellor :—The defendant applies to set aside the order for costs made in this cause, on the hearing of exceptions to the master’s report on the first answer of the defendant, and the costs on the hearing as to the sufficiency of the second answer, on the ground that the Chancellor was misled by a statement of the complainant’s counsel as to the particular objections made before the master. From the affidavits and the certificate of the master, there is no doubt that the statement of the counsel was incorrect in point of fact. But it also appears the objections were made before the master after the complainant’s counsel had left the office. There was not therefore any intentional misstatement for the purpose of deceiving the court; and the only question is, whether those objections were material. The original exceptions to the answer are not before me on this motion; but my impression is that I considered the objections made on the argument as unsound, and that they could not be sustained independent of the suggestion that those objections were not made before the master. But certainly this is not the proper method of reviewing the decision on the exceptions. If the defendant’s counsel thought the objections tenable, he should have applied for a rehearing.

The defendants also objected to the allowance of costs against Barlow and High, for the proceedings before the master on the reference of the further answer. On the hearing of the exceptions to the master’s report, it was in part confirmed and in part overruled. And it was ordered that neither the complainant or the defendants recover costs as against the other on the exceptions to the report; but *nothing was said as to the costs of the proceedings before the master.

On the hearing of exceptions to an answer before the master, if any of the exceptions are allowed, the complainant is entitled to the costs of the reference, so far as relates to those exceptions, and neither party is entitled to costs on the exceptions which are disallowed. If some of the exceptions are allowed only in part, neither party is entitled to costs in relation to those particular exceptions. If some of the exceptions are entirely disallowed, and none of them allowed in full, the defendant is entitled to his costs on the reference. But on exceptions to a master’s report, each party is entitled to costs of the exceptions decided in his favor. H some of the exceptions to an answer are well taken and others are not, the defendant should submit to answer those which are well taken. In that case only those which are not submitted to will be referred to the master. If the defendant succeeds on those exceptions, he will be entitled to his costs on the reference; and the complainant will be entitled to the costs of the exceptions submitted to, but to no part of the costs of the reference. On exceptions to a master’s report, some. of which are valid and others not well taken, both parties are compelled to come here to support or oppose the exceptions which are finally decided in their favor respectively. In such cases, if some exceptions are allowed and others disallowed, the costs of the respective parties are off set, and the balance Only is to be paid. If the costs on each side will be nearly equal, the court usually refuses to give costs to either party.

The defendant’s object to the ex parte order for an attachment for not paying the costs of the last hearing before the master, on the ground that it was irregular to take out the subpoena before the master’s report was confirmed or had become absolute, and before the costs were taxed. It is also objected that the amount of the cost's was not inserted in the subpoena. From the cases cited by the defendants’ counsel, it appears that the subpoena for a better answer, and the subpoena for costs, are not the same process, but separate *and distinct proceedings. The first may be taken out immediately upon the filing of the master’s report. It may be served on the solicitor or clerk in court, and the defendant must file his exceptions to the report within eight days, or it will become absolute. The subpoena for costs cannot issue until the amount is ascertained by taxation. It must be served on the party personally, unless otherwise specially directed by the court. It is founded upon the taxed bill of costs and the amount as liquidated is set forth in the body and label of the writ. (1 Turner’s Ch. R. 362, note; 1 Harrison, 240, 470; Prac. Reg. 406; 1 Fowler’s Exc. 446; 2 id. 362; Howard’s Eq. Side, 371; Prax. Alm. Cur. Can. 6, 13, 60; Hinde’s Pr. 256, 258, 264, 272.) The complainant may, at his election, have one subpoena for costs and another for a better answer, or have one subpoena for both. (Prac. Reg. 203, 407.) But if both objects are embraced in the same process, the costs must be first taxed, and the amount thereof inserted in the subpoena; and the service as to the costs must be on the party. The subpoena for costs in this cause, and the order for attachment founded thereon, were irregular, and must be set aside.

The defendants also ask for a retaxation of the several bills of costs. Upon looking into the bills annexed to the affidavits in this case, I am satisfied they are all taxed much too high. Whether the erroneous items were particularly objected to before the master, does not distinctly appear; but many of them should have been stricken out by him, whether objected to or not. As there must be a retaxation, I shall not attempt to point out the several items; but it may be proper to lay down some general rules, which are applicable to this case, and to all others.

Under the fee bill of February, 1824, the register is entitled to the fees of drawing all common orders, at the rate of 20 cents per folio, and 12 1-2 cents for entering the same. No engrossment is required, and no copies are to be allowed except those which are necessary to be served, according to the usual course of practice.

No copies of pleadings are to be allowed, except such as are required by the ordinary practice of the court, and which *are actually made out and furnished, except in special cases where the Chancellor directs copies to be made and furnished for a particular purpose. But one solicitors or counsel fee is to be allowed on arguing exceptions before a master, although the reference continues more than one day; and the master is only entitled to one fee for the hearing. If he claims pay for extra services in any case beyond the amount mentioned in the fee bill, the allowance can only be obtained on a special application to the court.

On a reference of exceptions to an answer, no objections are taken to the draft of the master’s report, and no copies of such draft are to be allowed, except the engrossed copy which is prepared by the master to file. A copy of the exceptions for the master on the hearing is to be allowed, but no copies of other pleadings, except in cases of great difficulty, when they are actually made for that occasion, and furnished in pursuance of an express direction of the master. In all other cases, the drafts or copies belonging to the solicitors are to be produced before the master, and left with him as long as may be necessary. When the same copies are used on different occasions before the court, the solicitor is only entitled to pay for them once.

Exceptions to a report on exceptions to an answer being now brought on and heard as a special motion, the solicitor is only allowed the ordinary fee on special motions; but $5 is to be allowed to counsel on the argument agreeably to the fee bill. The party excepting to a report furnishes the necessary copies for the hearing; and they are not to be allowed to the adverse party unless furnished at the request of the party excepting. If both parties except to the report, the complainant is to furnish the necessary copies, except copies of the exceptions, of which each party furnishes copies of his own; and all the exceptions are heard together.

There must be a retaxation of the several bills of costs in this case. And if any thing has been overpaid, it must be refunded to the party entitled to the same.

*This cause afterwards came up again before the Chancellor, on a motion for another retaxation of the costs; on which occasion the Chancellor gave further directions as to the taxation, which are contained in the following opinion:

The Chahcellor :—On the former application for a re-taxation of the costs in this cause, the court did not attempt to decide on the objectionable items, but stated general principles by which the master was to be governed in the taxation. So far as those principles extended, the master has conformed to them in this taxation; but new questions having arisen, it becomes necessary to give further directions as to the taxation of these costs.

The first objection is, that the master has allowed the solicitor to charge several copies of the common order of reference of exceptions served on the solicitors for the defendants. The service of these copies was wholly unnecessary. The exceptions had been served, and the master’s summons was all the notice requisite to apprise the defendants that the order of reference was entered. Neither was it necessary to serve copies of the master’s report. After it was filed, either parry was at liberty to apply to the register for a copy, if he wished it; and if the defendants wanted no copies, they ought not to be compelled to pay for those which the adverse party unnecessarily served on them. By the subpoena for a better answer, they were informed that the report was filed, and that it was against them, and they were bound at their peril to take notice of its contents.

Another objection is, that the summons was served on the different solicitors by different persons, and that several affidavits of the service are charged, when only one was necessary. If this mode of service was adopted unnecessarily, and for the purpose of swelling the costs, only one affidavit should have been taxed; but it appears that several affidavits were actually made, and the master has decided they were necessary and proper. This was a matter resting in the sound discretion of the master, and I have not sufficient before me to say his decision in this respect was wrong.

The only remaining objection relates to the prospective costs. Where the party is obliged to serve a copy of the *taxed bill to compel payment, he has a right to tax it prospectively, together with the charge for the demand. But as the statute prohibits any allowance for prospective costs, if payment is made before these services are actually performed, they must be deducted by the solicitor. If the party proceeds by subpoena, the amount is inserted therein, and no service of the taxed bill is necessary. The party cannot, therefore, be allowed for both. The affidavit of service and demand cannot be taken prospectively, as it is to be presumed the costs will be paid agreeably to the order of the court. If any further proceedings are necessary, the costs thereof and of the affidavits on which they are founded will be provided for by the subsequent order of the court.

The bills must be retaxed on these principles, and neither party is to have costs on this application.


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    Heath v. Hand and others.
    January 20th.
    Where a judgment is given by the principal debtor to his indorsers to secure the payment of the debt for which they are responsible, and they become insolvent, the creditor is entitled to the benefit of the security.
    The judgment being given for a specific object, an assignee cannot hold it against the creditors who have a prior equity.
    Where the sheriff had levied on perishable property, and the execution was stayed by injunction, the Chancellor allowed him to sell the property and pay the proceeds to the register, to abide the further order of the court.
    In October, 1826, the complainant, being possessed of a considerable real estate, gave the defendants, Hand and Kenyon, a judgment bond, in the penal sum of $10,000, conditioned to pay $5,000, on which a judgment was forthwith entered in the Supreme Court. The object of that judgment was to secure them for advances and responsibilities which they had incurred, or might thereafter incur for the complainant. Hand and Kenyon afterwards continued to make advances and to accept the drafts of the complainant until July, 1828, when Hand called on the complainant, in company with one of the creditors, who held drafts of the complainant, which had been accepted by Hand and Kenyon, and ^stated that they had stopped payment, and were unable to meet the drafts, but would be able to pay them if complainant would give them a judgment to the extent of their claim, including the acceptances and responsibilities incurred by them on account of the complainant. Hand at the same time presented him with a statement from their books, from which it appeared that the whole amount claimed by them, including indorsements and acceptances, was $14,800, and agreed that if complainant would give them a judgment for the balance of that amount over and above the first judgment, they would be able to go on with their business; and that if, on investigation of the account, it should turn out that so much was not due, the errors should be corrected. A judgment was given accordingly, on a bond conditioned to pay $9,800 on demand with interest. Hand and Kenyon assigned this last judgment to the defendant Lightbody, to secure him for responsibilities which he had incurred for them. The amount of the indorsements and acceptances included in the judgment have not been, paid by Hand and Kenyon, or any other person, but Lightbody has secured the payment of some part thereof. An execution having been issued on this judgment for the whole amount thereof, and levied on the complainant’s property, he filed his bill and obtained an injunction. The defendants moved to dissolve the injunction on the bill and answer, or that the same might be modified so as to enable the sheriff to sell the personal property which was perishable.

      I. Hamilton and M. T. Reynolds, for the defendants.

      J. L. Wendell, for complainant.
   The Chancellor :—It appears from the bill and answer in this cause, that the acceptances and responsibilities which Hand and Kenyon had not paid, were included in and intended to be secured by the judgment for $9,800. It is therefore immaterial whether there was any express agreement to pay them or not. To that extent the holders of those drafts and notes accepted and indorsed by Hand and Kenyon have an equitable interest in the judgment, Bank of Auburn v. *Throop, 18 John. 405,) which, being prior to the assignment to Lightbody, must prevail, except so far as he stands in the same situation with those creditors. The assignee of a judgment or other chose in action takes it subject to all the equities which existed against it in the hands of the original holders.

Hand and Kenyon being irresponsible, the complainant has a right to require that he be discharged from the payment of those drafts and notes before the proceeds of his property can be applied to any other purpose. The judgment being given to secure the payment of particular debts and responsibilities, Hand and Kenyon have no right to divert it to other purposes without the consent of the complainant. There is undoubtedly a considerable indebtedness from the complainant secured by this judgment, and it might be necessary, for the purpose of obtaining full security, to take out the execution and levy on his personal property, even before the acceptances and indorsements were paid. Hnder such circumstances it would be improper to let that property remain and perish in the hands of the sheriff. The injunction must therefore be modified, so far as to permit the sheriff to sell the personal property on the execution, and deposit the proceeds thereof with the register of this court, to abide the further order thereof.