text:
    Varick vs. Dodge.
    It is not a good pica to the jurisdiction of a vice chancellor, in a suit upon a creditor’s bill, that the defendant was not a resident of the circuit at the time of the filing of the complainant’s bill; where it appears that the judgment was recovered and the record filed in that circuit, and that the execution was issued and returned and filed there, and that the defendant resided there at the time such execution was issued.
    April 6.
    This was an appeal from a decision of the vice chancellor of the fifth circuit, overruling a plea to the jurisdiction of the court. The suit was an ordinary creditor’s bill, and the defendant was described in the bill as a resident of the fifth judicial circuit. The bill also showed the recovery of a judgment in the supreme court, which judgment was filed and docketed in the clerk’s office at Utica; and that the execution was issued to the county of Oneida, where the defendant resided, and was returned by the sheriff unsatisfied ; and that the execution, with such return thereon, was filed in the clerk’s office of the supreme court in that county. The bill also contained the usual allegation that the defendant had property, or equitable interests or choses in action of the value of $100 or more, exclusive of all prior just claims thereon; but without averring that such property, See. was within the fifth circuit. To this bill the defendant pleaded that he did not, at the time of filing the complainant’s bill, reside within the fifth circuit; and that the jurisdiction of the case therefore belonged to the chancellor, or to the vice chancellor of the first circuit.

      W. C. Noyes, for the appellant".

      J. H. Edmonds, for the respondent.
   The Chancellor.

I think the vice chancellor of the fifth circuit had jurisdiction of this case, under the first subdivision of the second section of the title of the revised statutes relative to the court of chancery. (2 R. S. 168.) The statute gives the vice chancellor jurisdiction in three cases: 1st. Where the causes and matters have arisen within his circuit; 2d. Where the subject matter of the suit is situated there; and 3d. Where the defendants, or either of them, reside in that circuit. As the statute is in the disjunctive, if the cause of suit in a creditor’s bill arose within the circuit of a vice chancellor, it is not necessary that the subject matter of the suit, the property and effects of the defendant which could not be reached by the execution at law, should be situated in that circuit, to enable the complainant to file his bill before such vice chancellor. The recovery of the judgment, and the issuing of the execution to the county of Oneida, and the return thereof by the sheriff unsatisfied, are the only causes of suit in this case which can be said to have arisen any where. And these all having arisen in the fifth circuit the vice chancellor has jurisdiction'of the case; even if the residence of the defendant in New-York constructively brings all his personal estate within the first circuit. In the case of Bicknell v. Field and Southworth, (8 Paige's Rep. 440,) where the complainant was arrested in the city of New-York in a suit upon a foreign judgment, which suit was alleged to be a proceeding contrary to equity, and a bill was filed for an injunction to restrain the proceedings in that suit, this court held that the cause of suit, if any, arose in the city of New-York, so as to give the vice chancellor of the first circuit jurisdiction ; although upon the merits of that case, which were also before me upon the demurrer to the bill, I thought the suit could not be sustained any where.

In this case, if the copy of the bill furnished upon the appeal is correct, the complainants have made a slight mistake in the allegation as to the defendant’s residence, by substituting the word resides for the word resided, so as to refer the residence of the defendant in Oneida county to the time of filing the bill, instead of the time of issuing the execution. That is a matter however which appears upon the face of the bill, and should therefore have been objected to by demurrer, or by the defendant’s answer; and cannot be urged upon the argument of this plea to the jurisdiction of the court. (Billing v. Flight, 1 Mad. Rep. 230.) The. plea being overruled, the complainant will be entitled to amend his bill in this respect, as a matter of course, under the 45th rule, within ten days after the order of the vice chancellor is affirmed.

The order appealed from is affirmed with costs; and the proceedings are remitted to the vice chancellor.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Nathan, receiver, &c. vs. Whitlock.
    Where the directors of an insurance company agreed among themselves to take a majority of the stock and to give their stock notes for the same secured by an hypothecation of the stock, and after the company had become greatly embarrassed, one of the directors agreed with the president to give him $6000 if he would take his stock and substitute his own note in lieu of the stock note of such director, which was done accordingly; Held, that it was a fraud upon the creditors of the company, and the other stockholders who had paid for their stock; and that the receiver who had been appointed to wind up the affairs of the company was entitled to recover the amount of the stock note of the director thus given up, with the exception of the sum which had actually been paid by the president to the company out of the $6000 received by him as a premium upon his purchase.
    A solvent stockholder who has given a stock note to a corporation for the purchase money of his stock cannot, upon the insolvency of the company, or in contemplation of that event, even with the consent of the directors, transfer his stock to an irresponsible person, and be discharged from his liability upon substituting the note of such person for his own; such an arrangement having the effect of a withdrawal of so much of the capital of the corporation, and being a violation of the statute to prevent fraudulent bankruptcies of incorporated companies.
    Where a debt due to a corporation has been fraudulently discharged, a bill to obtain satisfaction of the debt, against the orignal debtor, is properly filed in the name of the receiver who has been appointed by the court of chancery, under the provisions of the revised statutes, to wind up the affairs of the company.
    If some of the stockholders of a corporation have paid for their stock, and others have secured the amount of their stock by stock notes, those who have paid for their stock have a right to insist that the receiver who has been appointed to close up the affairs of the company shall collect the stock notes, or so much thereof as is necessary to equalize the losses among all the stockholders rateably.
    April 6.
    This case came before the chancellor upon an appeal by the defendant from a decree of the vice chancellor of the first circuit. The proceedings and proof showed it to be one of the innumerable cases of frauds upon creditors, and many innocent and unsuspecting stockholders of incorporated companies, in the city of New-York, committed by those who obtained the control of a great number of those institutions in 1825 and 1828. The facts in the case were substantially as follows: The Mohawk Insurance Company was incorporated on the 3d of April, 1824, with a capital of $500,000 divided into shares of $20 each; and the act of incorporation required the whole capital to bef 8 subscribed and paid before the company should be allowed ¡I to commence business. The afiairs of the corporation were to be managed by fourteen directors, a majority of whom was to constitute a board and to be competent to transact all the business of the corporation ; such directors to be elected annually on the second Monday in January, by the stockholders, the holder of each share of the stock being entitled to one vote. The first directors were named in the act of incorporation, among whom was the defendant Whitlock, and J. D. Brown who was after-wards president of the company. The board of directors at their first meeting on the 8th of April, 1824, resolved that they would reserve a majority of the stock for themselves, and that books of subscription for the residue of the stock should be opened for the public under the direction of a committee of the board. And to enable them to keep the control of the institution without paying any thing in fact for their stock, the directors afterwards resolved that the shares taken by the directors should be held on the following terms: The whole amount or par j value of their stock to be loaned to them respectively by ¡ the company at seven per cent interest; or if the director | paid ten per cent towards his stock, the residue of the par value thereof was to be loaned to him at six per cent interest. But that no director should sell his stock to any others than his co-directors; and that upon retiring from the direction, such director should be allowed by the remaining directors the actual value of his stock, to be ascertained from the books of the company. At a subsequent meeting of the board, the interest on the stock notes of the directors was fixed at six per cent in all cases.
    Thirteen of the directors, Rathbone one of the directors named in the charter having resigned, subscribed for 1042 shares of the stock each, constituting a majority of the shares. And the board decided that the company should go into operation on the 1st of May, 1824, and that the stock, if any, which should not then be subscribed for, should be assumed by the directors for apportionment to the public. Whitlock, the defendant, gave to the company his note for §20,840, payable on demand with interest, at the rate of six per cent, and hypothecated his 1042 shares of stock to the company to secure the payment of the note. On the 3d of June, 1825, the company insured a vessel for J. Webb & Co. to the amount of §19,000 5 which vessel was stranded and lost on the 9th of July thereafter ; upon which insurance they afterwards recovered a judgment against the company for §23,874.33, including interest and costs. The company also sustained other losses and became embarrassed, and its credit became impaired. On the 12th of April, 1826, Whitlock, the de-l fendant, then being a director of the company, negotiated:; with Brown, the president, to sell him his stock and to; take up his stock note and to substitute Brown’s note in lieu thereof; and as a consideration therefor, he agreed to give to Browrn §6000, in good paper. And on the 14th of April this arrangement was consummated, without the concurrence of the board of directors, by the transfer of the stock to Brown and the giving up of the stock note of Whitlock for $20,840, held by the company. Brown substituted his own note to the company for the like amount, and hypothecated the same stock as security for the payment thereof; and Whitlock gave to Brown two notes, one for $1500 and the other for $4500, as the considerador} agreed to be given for making this arrangement. Brown’s note never was paid ; but some of the directors of the company when Whitlock’s note for §4500 became due, obtained it from Brown and received the amount thereof for the institution. The company having become hopelessly insolvent, and the execution upon the judgment of Webb & Co. having been returned unsatisfied, a petition was presented to the vice chancellor for the appointment of a receiver to wind up the affairs of the company, under the provisions of the revised statutes in such cases, and the complainant was appointed such receiver. He thereupon filed the bill in this case against Whitlock, to obtain satisfaction of the stock note which had been given up to him under the arrangement with Brown. The vice chancellor came to the conclusion | that the arrangement by which that note was given up was | illegal and unauthorized, and was a fraud upon the credi- J tors of the company and the stockholders who had paid for their stock. He therefore decreed payment of the note deducting therefrom the amount of the §4500 given to Brown, the avails of which had actually gone into the funds of the company.

      J. Anthon G. Griffin, for the appellant.
    The only question presented by the bill in this cause is, whether, at the time it was filed, the defendant was indebted to the Mohawk Insurance Company, for the whole or any part of r the debt of $20,840, for which he gave his note to the company on the 1st of May, 1824. Any supposed fraudulent organization of the company, or any of its transactions in relation to other matters except the alleged indebtedness of the defendant, can have no legitimate influence upon the decision of the cause. The complainant having been appointed receiver of the company, at the suit of a judgment creditor, and the bill having been filed by him as such receiver, against the defendant as a debtor of the company, presupposes a due organization of the company under its charter. The bill does not attempt to charge the defendant upon any other ground than that of his alleged indebtedness to the company. A different bill and different parties are necessary to charge the defendant for any improper conduct as a director. The complainant as receiver of the company has no power or authority to question its due organization, or to investigate the conduct of the board of directors, or to disavow' or annul any of the proceedings of the company. As such receiver, the complainant can maintain no suit at kw or in equity for the recovery of any estate, debts or things in action, where the corporation itself could not maintain such suit. If the corporation could not maintain this suit against the defendant, the receiver cannot. (2 R. S. 379, § 42, 2d ed. Id. 383, § 68. 1 Id. 798, § 7, subd. 1.) At the time of filing the bill, the defendant was not indebted to the Mohawk Insurance Company upon his note for $20,840, or for the demand for which it was given. The company could maintain no suit against him upon that demand, either at law or in equity. The sale and transfer by the defendant of his stock to Brown, the president of the company, was a fair transaction, entered into in good faith, for the purpose of accomplishing a lawful object, without any fraudulent or dishonest or other unlawful intent. The transaction was not secret; it was open, sanctioned by the finance committee, entered in detail on the books of the company, and was well known to the directors, or a majority of them. The defendant had no knowledge that the company was insolvent. He believed that Brown was a merchant in good credit and standing.
    The substitution of Brown’s note for the defendant’s, and the giving up of the defendant’s note to him, was fully authorized and assented to by the company. The president had authority to make the substitution.. (Charter of the Company, Laws of 1824, p. 161, 2, § 10.) The finance committee had full power to and did assent to it on the part of the company. (Idem, p. 160, 1, 2, § 8, 10.) It was known to a majority if not all of the directors, and has been acquiesced in by the company for seven years. The claim was barred by the statute of limitations before the commencement of this suit. (2 R. S. 224, § 18, 2d ed. Id. 228, § 49. 2 Vesey, sen. 299. 3 Vesey, jun. 402. 6 Vesey, 573,575. 2 Bro. Parl. Cas. 44, 49. 9 John. Ch. Rep. 595, 6. 3 Paige’s Rep. 481. 2 Id. 397. 6 John. Rep. 559, 564. 3 Wendell, 653. 9 Id. 562, 3. 18 John. Rep. 560. Freem. Ch. Rep. 48, note 2. 2 T. R. 189. 2 Kent’s Com. 616. Story’s Agency, p. 248, §§ 254, 255, 239, 250. 12 Wheat. 69, 70, 73, 83, 85, 86. Paley on Agency, 4. 7 John. Rep. 161. 16 Id. 189. Paley on Agency, 143, 145, 172. 12 John. R. 306. 3 Chit. Com. Law, 198. 4 Burn. § East, 217. 4 Bing. R. 722. 22 Wendell, 341, 342. 8 John. R. 202.)

      F. B. Cutting, for the respondent.
    The appellant, William Whitlock, jun. being justly indebted to the Mohawk Insurance Company in the sum of $20,840, either for the amount of his subscription to the capital stock thereof, or for money lent and advanced by the company to him on the first day of May, 1824, gave his promissory note to the company, payable on demand, with interest at the rate of six per cent, and as collateral security transferred to the company, in its corporate name, 1042 shares of the capital stock thereof. This note, together with the collateral security, became part of the capital of the company, and was in equity held by the directors in trust for the payment of the corporate debts and for the benefit of the stockholders. (Scott v. The Eagle Fire Company, 7 Paige, 198. Depeyster v. The American Insurance Company, 6 Id. 486. Wood v. Dummer, 3 Mason, 308. 2 Story's Eq. 9, § 1252. 6 Paige, 340. 4 Id. 127, 134.) Isaac Webb & Co. were creditors of the company, and entitled to payment out of its capital and effects. Brown had no right, either in his official or private capacity, to surrender to Whitlock his note for $20,840. The bargain between them (they being directors and trustees of the company,) was a fraud upon the company, its creditors and stockholders. (Reed v. Bank of Newburgh, 6 Paige, 337,) The abstraction by Brown of Whitlock’s note being fraudulent, the Mohawk Insurance Company had a valid claim against Whitlock for the amount due by him, with interest and the receiver, Seixas Nathan, is authorized to sue for and collect the same for the benefit of the creditors and stockholders of the said company. Neither the Mohawk Insurance Company nor its board of directors ever authorized the arrangement betwmen Brown and Whitlock. Even if the board of directors had assented thereto, such assent could not have validated the transaction. An assent, with a knowledge of the insolvency of Brown, would have been a fraud upon the bona fide creditors and the innocent stockholders of the company. If the directors had authorized the consummation of the bargain in ignorance of the insolvency of Brown, such an assent obtained through and in consequence of such ignorance, would not have validated the transaction. The committee on finance had no authority to authorize the transaction. (Act incorporating the Mohawk Ins. Co., Sess. Laws of 1824, ch. 154,§4,7,8. Hosack v. College of Physicians of N. Y., 5 Wendell, 547,550. Bank Commissioners v. Bank of Bufalo, 6 Paige, 497, 504.) That committee never did authorize or assent to that arrangement.
    If any person, who was a director of the company, expressed any opinion in relation to the matter, it was in his individual and not in his official capacity. (National Bank v. Norton, 1 Hill’s R. 579. Fulton Bank v. N. York and Sharon Canal Co. 4 Paige, 127, 136. 2 Phil. Ev. note 174, p. 169.) If any director did express an opinion favorable to the substitution of Brown’s note for Whitlock’s, it must have been in ignorance of the insolvency of Brown. Whitlock and Brown being directors, were trustees for the stockholders and creditors of the corporation, and had no right to traffic with the trust funds for their own benefit. The transaction between them ought for that reason to be annulled. (3 Vesey, 740, note 1. 2 Story’s Eq. Pl. 502, 506, 510,524,752.) It was unlawful for Whitlock to withdraw any part of the capital stock, or for Browm to pay or surrender any part of the capital to Whitlock. (Laws cf 1825, p. 448, § 2,6. The complainant was the proper person to bring this suit. (2 R. S. 464, § 42. Idem, 469, § 67, 68. Idem, 42, § 7. 1 Anstr. R. 109,113. 12 Vesey, 136,158. 4 Dessaus. 651,677,702, 705, 715. G John. Ch. R. 132, 137. 1 McCord’s Ch. R. 156, 161. 3 Paige, 231, 2. 9 Mass. R. 423. 2 R. S. 383, § 67—469, old ed. Story’s Eq. PL 191,2, § 216, 217. Id. 145, § 149.)
   The Chancellor.

I entirely concur in the conclusion at which the vice chancellor arrived in this case, that the giving up of the note, and the transfer to Browm of the stock which had been hypothecated for its security, wras illegal and a fraud upon the creditors of the corporation. Whitlock, as a director of the corporation, who had from the beginning taken an active part in the transactions of the company, must be presumed to have known its situation ¡ and that neither Brown nor even the directors of the company7 had the right to make such an arrangement with him. It was in fact an arrangement to enable Whit-lock to withdraw a part of the capital stock of the company ; this note being the substitute for the money paid in, or which should have been paid in, on his stock. Such arrangement was therefore in direct violation of the provisions of the second section of the act of April, 1825, to prevent fraudulent bankruptcies by incorporated companies. (Laws of 1825, p. 448.) The vice chancellor is right also in supposing that the board of directors of the company never assented to this arrangement; even if their assent to such a fraud upon the creditors of the company, and upon the law, could have validated the transaction. And certainly could be no implied assent in such a case, which would e the effect to discharge Whitlock from his liability to creditors of the company for the amount of his stock

standing the note was given up without authority. (2 R. S. 42, § 7.) This is not a proceeding to charge the defendant as a director or stockholder of the corporation on the ground that he has, as such director or stockholder, made himself personally7 liable to the creditors ; so as to make it necessary for Webb & Co., to proceed against him under the provisions of the 43d, 44lh, and 45th sections of the article of the revised statutes relative to proceedings against corporations in equity. (2 R.. S. 464.) But it is a suit to receiver is the proper person to bring the suit, as the legal title to all the property of the company ; , by the revised statutes, with all the rights ;law to trustees or assignees of insolvent debtors. 464, ^ 42. Idem, 469, ^ 67, 68.) He is thereby authorized to sue in his own name for this which debt is still due to the corporation, notwithcollect a debt; which is still due from him to the corporation, notwithstanding the fraudulent and unauthorized agreement under which the note, which was once the evidence of such indebtedness, had been given up. It is therefore a case in which the innocent stockholders of the corporation would have an interest in the recovery of the amount of the note, even if there were other funds of the corporation sufficient to pay its debts. For where there is a loss upon the stock, such of the stockholders as have paid for their stock have a right to insist that those who have given stock notes only shall pay such notes to the receiver ; so that all may share rateably in the loss which has fallen upon the stockholders generally.

I have no doubt that the decree appealed from was right; and it must be affirmed with costs.(a)

(a) This decision was affirmed, on appeal to the court for the correction of errors, m December, 1842.


text:
    Cairns and others vs. Chaubert and wife.
    Where a testator devised the rents and profits of his real estate, andj come of his personal property, to bis widow for life; apd after tbs of his will acquired the right to the profits of a toll bridge fori years; Held, that the widow was not entitled to the whole < of the toll bridge during her life, but only to the interest c value at the death of the testator.
    A specific bequest of successive estates in terms for years, an j real, gives to the respective owners the whole income of the| the continuance of their respective estates.
    But where an estate for life, or an interest short of an absolute ownership ia given in the general residue of the testator’s personal property, terms for years and other perishable funds or property which may be consumed in the using, must he converted and invested in such a way as to produce a permanent capital; the interest or income of which capital alone belongs to the owner of the particular estate in such general residue.
    Where an executor, instead of calling in the money upon good and collectable bonds and mortgages or other securities belonging to the estate of the testator, for the benefit of the legatees, transfers such securities to a third person for the use of such legatees, with their assent, he is entitled to the same commissions as if ho had actually received and paid over the money, or invested it as directed by the will. But where an executor dies before he has converted the personal property of the testator into money, or otherwise disposed of it in the execution of his trust, he is not entitled to commissions upon the value such property.
    April 20.
    This was an appeal from the sentence and decree of the surrogate of the city and county of New-York, upon the final settlement of the accounts of Mrs. Chaubert, as executrix of the will of her husband, G. Rapelje deceased. The testator died on the 5th of May, 1835, seized and possessed of a large personal estate. By his will, executed in 1832, he devised and bequeathed the rents of his real estate and the income of his personal property, after payment of his debts, to his widow for life$ in lieu of dower in his real estate. After her death he gave a legacy of $7000 to the children of her brother B. P. Provost, together with his Irish estate} and a specific legacy of plate, books, and furniture. The residue of his property, after the death of his widow, he gave to Ann Eliza Taylor, now Mrs. Cairns, for life, charged with the support of her three children named in the will j with remainder to them and their issue in different proportions. Among the personal estate left by the testator was his interest, for about twenty-nine years, in a bridge which he had built across the East Chester creek, under the act of April, 1834, and some lease land adjoining the bridge on which the toll house was erected ; which property was appraised at $10,000. About §4,500 of the personal estate was securely invested in bonds and mortgages ; which, by an arragement with the appellants, had been transferred to the New-York Life Insurance and Trust Company, for the benefit of the legatees who were interested in the property under the will. The executrix had expended §592,34, in the completion of the toll house, -and in building a ham upon the leasehold premises connected with the East Chester bridge, for the use of the keeper; which was allowed to her by the surrogate. He also allowed her §500 for the services of Gerardus Clark in the setlement of the estate; and the full commissions upon the whole personal estate of the testator, except the specific legacies, in the same manner as if she had actually received the monies on the bonds and mortgages and reinvested the same for the purposes of the will or had paid the same over to the legatees. The appeal from the decision of the surrogate was in reference to the allowance of these three items in the account of the executrix.

      James Smith, for the appellant,

      Cornelius Nagle, for the respondents,
   The Chancellor.

The counsel for both parties in this case appear to have acted upon the supposition that Mrs. Chaubért was entitled to the whole income of the bridge property ; in the same manner as if the testator had made a specific bequest of the rents and tolls of this particular portion of his property to her for life, with remainder to others for the residue of the term for which the franchise of taking tolls was to continue; unconnected with the general residuary bequest of all his property to her for life, after payment of debts, with remainders therein to others after her death. Upon that supposition it was clearly wrong to allow the executrix to expend upon this property, the capital of which was constantly decreasing by the efflux of time, other portions of the personal estate, in which the interests of the owners of the successive life estates therein and of the ultimate remaindermen in fee was entirely different. For, as the counsel of the appellant correctly remarks, if Mrs. Chaubert should continue to live until the charter of the bridge and the term for years in the toll house and barn lot expires, the appellant would lose the whole of the personal estate which had been laid out in improvements upon that property. And the result would be the same to the children of Mrs. Cairns, and their descendants, if their mother should survive the first tenant for life and outlive the continuance of this term of twenty-nine years.

Both parties are wrong, however, in supposing that the widow was entitled to the whole income of the bridge property in the situation in which it was at the time of the tes tutor’s death ; instead of the interest or income of the capital which that part of his property would have produced by an actual sale thereof, and the investment of the proceeds of such sale in permanent securities. As the bridge was not in existence, nor in the contemplation of the testator, at the time of making his will, two years before the passage of the act of the legislature authorizing him to build it, upon no principle of construction can this be considered as a specific bequest of successive life estates, to his wife and to Mrs. Cairns, in this particular property, The case, therefore, falls within the general principle that where an estate for life, or any other interest short of the absolute ownership, is given in the general residue of the testator’s personal estate, terms for years, and other perishable funds or property which may be consumed in the using, are to be converted and invested in such a way as to produce a permanent capital; the income or interest of which permanent capital alone is to go to the owner of the life estate, or other particular estate in the testator’s residuary personal property. (See How v. Earl of Portsmouth, 7 Vesey’s Rep. 137. Feams v. Young, 9 Idem, 549. Covenhoven v. Shuler, 2 Paige’s Rep. 122. 2 Will. Law of Ex’rs, 859.) The expenditure in completing the toll house and barn may therefore be considered as properly expended upon this portion of the personal estate ; to carry into effect the intention of the testator. The bridge and franchise, including the improvements upon the toll house and barn and the leasehold property, should be valued together at what they were worth in cash immediately after the testator’s death; and the executrix should be allowed the interest on that amount, out of the tolls or income exclusive of taxes, for life, or until the property is actually sold. And the residue of the income must be accounted for by her, and added to the capital of the fund and accumulated ; so as to place those who are interested in the remainder in the same situation as if the bridge property and the expenditures thereon had been sold and converted into a permanent capital within the year after the death of the testator. This part of the decree of the surrogate must be modified accordingly, by restating that part of the account on these principles. And to prevent a confusion in the accounts between the owner of the second life estate and the remaindermen, in this part of the testator’s personal estate, it may be proper for the surrogate to direct it to be sold and the proceeds to be invested in permanent securities.

The surrogate was right in allowing the executrix the $500 paid to Clark for his services in settling the estate j as it appears by the testimony to have been a proper disbursement, and such as was allowed by this court in the cases of McWhorter v. Benson, (Hopk. Rep. 28,) and Vanderheyden v. Vanderheyden, (2 Paige's Rep. 287.) That part of the decree must therefore be affirmed.

The decree was also right in allowing to the executrix commissions upon the bonds and mortgages which were valid and collectable ¿ and which were assigned to the trust company, with the assent of the surrogate and the appellants, as permanent securities for the benefit of the remaindermen. This money was, in legal effect, received and paid over for the purposes of the trust. The executrix was not, however, entitled to commissions on the $10,000 at which the bridge property was inventoried, until it had been actually sold and the money invested for the purposes of the trust. For if she died leaving that property unsold, it would be necessary that a new personal representative of the testator should be appointed to perform that part of the trust, before the property could be converted into money and distributed to the legatees entitled thereto according to the directions of the will. The commissions, to that extent, must be disallowed.

As neither party has wholly succeeded upon this appeal, I shall not allow costs to either as against the other.. And the proceedings are to be remitted to the surrogate to restate the account in conformity with this decision.

         See Pickering v. Pickering, 4 Mylne & Craig's Chancery Reports, 289.


text:
    Bartholomew vs. Yaw.
    Money which has been recovered and collected in a suit at law upon an usurious security, in which suit there was a legal defence, cannot be recovered back from the plaintiff in such suit; either at law or in equity. Where a suit at law is brought to recover upon an usurious security, if the defendant has a legal defence, he must insist upon it in that suit; and where a discovery is necessary to establish such defence, he must file his bill of discovery and obtain an injunction to stay the suit at law until the discovery has been made ; so as to enable him to use the answer on the trial at law.
    April 20.
    This was an appeal from a decision of the vice chancellor of the eighth circuit, overruling a demurrer. The bill was filed to recover back the usurious premiums which the complainant had paid to the defendant upon a loan of $200; which sum had been loaned at the rate of three and a half per cent per month, in addition to the legal interest. The bill alleged that the loan was made in October, 1834, when the complainant and his sureties gave to the defendant twelve promissory notes, amounting together to the sum of $256, payable in eight months, with interest; and that the notes were renewed from time to time, at the end of every six months, at the same usurious rate ; a part of the amount being paid at each renewal, until January, 1837. At that time twelve new notes were given, by the complainant and his sureties, amounting in the aggregate, to $266,20, payable in six months with interest. When these last notes fell due the defendant caused twelve suits to be commenced thereon before a justice, and recovered judgment for the whole amount of each note, with interest and costs, against the complainant and his sureties ; which judgments the complainant afterwards paid. The bill also stated that the original contract for the usurious loan, and all the subsequent agreements for the renewal of the notes on the same terms, were made between the complainant and the defendant when no other person was present; so that it was impossible to prove the usury as a defence to the suits before the justice; and that during the pendency of those suits the present defendant was not in the county where the suits were brought, or in either of the adjoining counties.

      M. Fillmore, for the appellant.

      M. T. Reynolds, for the respondent.
   The Chancellor.

This is not a suit to recover back usurious premiums voluntarily paid, and for a discovery of the usury, under the provisions of the revised statutes on the subject. For by the computation I have made from the statements in the bill, a little more than $21 of the original loan, including legal interest, remained due when the last notes were given ; and only $245 of those notes consisted exclusively of the usurious premiums. It is evident therefore, that if the last twelve notes had not been sued and collected, there could have been no claim to recover any thing back ; the settled rule being to apply the payments made from time to time, upon an usurious security, to the satisfaction of the money loaned and the legal interest thereon. Had there been an express agreement between the parties that the payments made from time to time should be applied to the payment of the usurious premiums exclusively, or had the new notes been transferred to a bona fide assignee before they became due, so as to render the complainant and his sureties legally liable for the payment of the whole amount, under the provisions of the revised statutes then in force, a different question would have been presented. But upon the case made by the bill I can consider it in no other light than an attempt to recover back money which the defendant has recovered from the complainant and his sureties by judgments in litigated suits at law; as to which suits they had a legal defence if they had taken the proper steps to avail themselves of it in time.

In the case of Thompson v. Berry & Van Buren, (3 John. Ch. Rep. 395,) in this court, Chancellor Kent deelded that he had no power to interfere in such a case. That the complainant, when sued at law, should have set up the usury as a defence to the suit; and if a discovery was necessary to establish such defence, he should have filed his bill here to enable him to use the defendant’s answer on the trial. In the present case, if the holder of the usurious notes had been within the jurisdiction of the court ( of law, he might himself have been called as a witness to prove the defence of usury, under the statute of 1837. But as he could not be procured as a witness for that purpose, the proper course for the complainant to pursue was to set up the defence of usury to the notes, and file a bill in this court for a discovery to enable him to establish such defence. Upon a bill of discovery, containing the facts now sworn to, it would have been a matter of course to grant an injunction to stay the proceedings in the suits upon the notes, until such bill was fully answered.

I regret that it is not in the power of this court to give relief in the present case, without assuming a jurisdiction which is inconsistent with settled principles. There must at some time be an end of litigation ; or suits between the same parties and in relation to the same subject matter will be interminable. A party, therefore, who has a legal defence to a suit must avail himself of it in that suit. And if a bill of discovery is necessary, he must not wait until after judgment under the expectation that he can recover back the money collected under such a judgment by the aid of this court. (See Lansing v. Eddy, 1 John. Ch. Rep. 49; and 3 Atk. 223.)

The decretal order of the AÚce chanceller overruling the demurrer must therefore be reversed ; and the plaintiff’s bill must be dismissed with costs. But under the circumstances of this case the appellant has no claim to be allowed his costs on this appeal.


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    The Morris Canal Company vs. Emmett and wife.
    Where there is a sale of land per aversionem, or at a gross sum for the whole premises, and not at a specified price by the foot or acre, the purchaser is entitled to the land contained within the designated boundaries of his grant, be it more or less; without reference to the quantity or measure of the premises as mentioned in the contract or conveyance.
    And where there has been no fraud or misrepresentation, the purchaser of the land is neither liable for a surplus, nor entitled to a deduction for a de. . ficiency, in the quantity or measure of the premises, as mentioned in his contract or deed.
    The cases in which courts of equity interfere to give relief, where the quanti. ty of the land exceeds or falls short of that which is specified in the deed or contract of sale, are those in which the sale of the land has been made by the acre or foot; or where there has been fraud, or wilful misrepresentation, on the part of the party against whom relief is sought, to induce the other party to believe the quantity of land conveyed was different from what it really was.
    April 20.
    This was an appeal from a decree of the assistant vice-chancellor of the first circuit. The bill was filed to foreclose a mortgage given by the defendants, to Eleanor Cal-lean, for a part of the purchase money of the mortgaged premises ; which mortgage was subsequently assigned by her to W. P. Rathbone, and by him to the complainants. The premises were described in the deed, and in the mortgage as lots No. 1, 2 and 3, on the map of the lands of J. De Lancy, bounded northerly by Water street, westerly by Walnut street, southerly by the lands of M. Rogers, and easterly by lot No. 4 ; and containing together, in breadth in front on Water street seventy-five feet, and in rear seventy-five feet, on Walnut street seventy-five feet, and on the easterly side seventy-five feet, more or less. The defence set up by the defendants, and proved by the city surveyor, was that the lots were five feet less in depth than they were stated to be in the conveyance and in the mortgage ; being but seventy feet deep on Walnut street and on the east line of the premises. The assistant vice-chancellor decided that the defendants were not entitled to any deduction from the bond and mortgage on account of this deficiency in the depth of the lots ; and made the usual decree for the foreclosure and sale of the mortgaged premises.
    Ü7, J. Wilson, for the appellants.

      T. W. Tucker, for the respondents.
   The Chancellor.

The assistant vice chancellor was unquestionably right in refusing to make any deduction from the amount of the bond and mortgage in this case, on account of the alleged deficiency in the premises, for a part of the purchase money of which these securities were given. The sale to Emmett was clearly a sale per aversionem,, as it was called in the Roman law : that is, for a gross sum to be paid for the whole premises, and not at a specified price by the foot or acre. In such sales the purchaser is entitled to the quantity contained within the designated boundaries of the grant, be it more or less; without reference to quantity or measure of the premises which is mentioned in the contract or conveyance. And where there has been no fraud or misrepresentation he is neither liable for a surplus, nor entitled to a deduction on account of any deficiency, in the quantity or measure of the premises mentioned in the contract or deed. (Mann v. Pearson, 2 John. Rep. 37. Powell v. Clark, 5 Mass. Rep. 355. Beach v. Sternes, 1 Aiken's Rep. 325.) The rule adopted by our courts in this respect, although it may not carry into effect the real intention of the parties in all cases, is calculated to prevent litigation. It is also more equitable than the rule of the civil law ; which, in such cases, gave the excess to the purchaser, without compensation, where the property was sold by a specific description followed by the mention of the quantity or measure'; although he was entitled to a deduction from the price in case of a deficiency. (Pothier Cont. De Vente, n. 251, 255.) The civil code of Louisiana, however, has placed both parties to the contract upon an equality in this respect; by declaring tha tthere can be neither increase or diminution of price, on account of disagreement of measure, when the object of sale is designated by the adjoining tenements and sold from boundary to boundary. (Civ. Code Louis, art. 24, 71.) That is the principle adopted by our courts. And under this article it has been decided by the supreme court of Louisiana, that where several lots were sold together, designated by their numbers in a particular square, and with reference to the plan of the allotment, although the depth of each lot was specified, and fell short of the number of feet mentioned in the conveyance, the purchaser was not entitled to claim a diminution of the price on account of such deficiency. (See Kirkpatrick v. McMillen, 14 Louis. Rep. 497.)

The cases in which courts of equity have interfered are all referred to by Mr. Justice Story in Stebbins v. Eddy, (4 Mason’s Rep. 414 ;) and it is only necessary for me to cite his opinion in that case as containing a correct exposition of the law on this subject. The cases in which equitable relief has been granted are generally those in which the sale of the land has been made by the acre or the foot j or where there has been fraud or wilful misrepresentation on the part of the vendor, to induce the purchaser to suppose the quantity of land was greater than it actually was. In the case under consideration, however, there is no allegation or proof on the part of the appellants that the premises were sold by the foot, or that the price to be paid had any reference to the actual depth of the lots; or that the purchaser was deceived by any misrepresentation as to the number of feet the lots extended back from Water street. I am also inclined to think the words more or less, with which the description of the premises concludes, were intended to apply to the depth of the lots upon Walnut street as well as upon the easterly line of the premises ; thereby clearly indicating that both parties to the conveyance were ignorant of the actual depth of either of the three lots conveyed.

The decree appealed from must therefore be affirmed with costs.


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    Hamilton vs. The New-York and Harlem Rail Road Company.
    The time limited for the completion of the Harlem rail road only applied to the road as originally authorized by its charter. And the extension authorized by the act of 1832, may be made from time to time as the common council of the city shall think proper to authorize it to be donef at any time during the existence of the charter of the company.
    A rail road running through the streets of a city, which does not materially interfere with the use of the streets for ordinary purposes, or injure the value of the adjacent property, is not a nuisance.
    This was an application for an injunction to restrain the defendants from extending their rail road through Broome street; or rather from using the road laid down in the street, as the construction of it had been completed before the motion was made.
    April 20.

      S. Sherwood, for the complainant,

      S. Meredith, for the defendants.
   The Chancellor.

From the affidavits it is evident that the rail road cannot materially interfere with the use of the street for the ordinary purpose of passing with carts and carriages. It is insisted, however, on the part of the complainants that the time for completing the road expired in March, 1839, and that the defendants had no right to lay down these rails in Broome street after that time.

The orignal act of April, 1831, authorized the construction of a rail road from the north bounds of 23d street to the Harlem river, and required the road to be located within six months and to be completed within four years from the passing of the act, or that the grant should cease and become void. The time for completing the road was subsequently extended, by two acts of the legislature, until the 6th of March, 1839. I am satisfied, however, that the restriction upon the company by the original act as to the time of completing their road, which time was extended by these subsequent acts, only applied to the road as originally authorized j. and if the road was completed to that extent previous to the 6th of March, 1839, that it may be extended into the city from time to time, as permission from the corporation can he obtained, at any period during the continuance of the charter. The object of the original restriction was to ensure the making of the road to the prescribed extent within a reasonable time, or that the franchise should revert to the people. But the act of 1832, authorizing the extension of the road to 14th street, and through such other streets of the city as the corporation should from time to time permit, subject to such prudential rules as might be prescribed by the corporation In addition to those directed by the act itself, appears to have contemplated the extension of the road from time to time, as and when the corporation should give the permission ; leaving it to that body regulate the time when the extension should commence and be completed in any particular street south of Fourteenth, without reference to the time allowed for completing the original road. The corporation, therefore, was not only authorized to allow the road to be extended through Broome street to the City Hall subsequent to March, 1839, but they may authorize a further extension to the Battery if they shall deem it for the interest of the city to have it thus extended; provided it does not materially interrupt the ordinary use of the streets through which it is allowed to pass.

The affidavits show that the manner in which the road is constructed in Broome street is a substantial compliance with the last clause of the 10th section of the act of 1831 \ as there is sufficient space on each side of the track for the passage of carriages and for the usual side walk for foot passengers. Indeed the construction of the road with the groove rail,laid upon a level with the surface of the pavement, leaves the whole street perfectly free for the passage of carts and carriages of every kind, for the whole width thereof, except at the moment when the rail road cars are passing upon the track in the centre of the street. If the construction of the road was such as to render it impossible or difficult for carriages to cross the track of the rail road from one side of the street to the other, then it would be proper that there should he room on each side of the track for carriages to pass each other between the track and the curb stone. But that is not necessary, as this road is constructed, for the rails do not prevent carriages from passing each other in the street with the same facility as if the track of the rail road was not there. Upon the whole, I am satisfied that the laying of the track of the rail road through Broome street, and the running of the cars upon the same, is not such a nuisance to the owners of property upon that street as will authorize this court to interfere by injunction.

The motion is therefore denied with costs.


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    Schryver & Teller vs. Teller and others.
    The principle that lands consisting of different parcels, subject to a general incumbrance, arc in equity to he charged in the inverse order of the alienalion of the several parcels, applies to cases where the owner of the lands has given thereon several mortgages of different dates.
    A general Hen will be thrown upon such particular parcel of land as will give a mortgagee the benefit of the priority of his mortgageupon the lands of the mortgagor, or upon a part thereof, over subsequent incumbrancers, either upon the whole premises or upon a part thereof.
    May 4.
    Tins was an application by W. F. Teller, one of the defendants in a foreclosure suit, whose mortgage upon the premises was^riqr in date to the mortgage of the complainants, to modify a decree which had been entered upon the bill taken as confessed, under the following circumstances : Tobias Teller the mortgagor owned land at Redhook and also land at Coxsackie, subject to the lien of several judgments, in the supreme court, recovered previous to the 28th of May, 1840. The property at each place was also subject to the incumbrance of several mortgages previous to that date. On the 28th of May, 1840, T. Teller mortgaged the Coxsackie property to W. F. Teller the petitioner, to secure the payment of $2000 ; and on the 7th of July thereafter he mortgaged the same premises to the complainants Schryver and B. F. Teller, to secure the payment of $1500. On the 9th of June, 1840, he mortgaged the Redhook property to Platt, Staats, and Bonesteel, to secure the payment of $4000; a part of which was afterwards paid out of the other property. And on the 12th of the same month he mortgaged the same premises to Schryver and B. F. Teller to secure the payment of $10,000. After the giving of the mortgage to the petitioner, upon the Coxsackie property, and before the mortgage to Platt, Staats and, Bonesteel, Platt and Van Steenburgh recovered a judgment against the mortgagor, for about $3000; which was docketed on the 3d of June, 1840, and thus became a lien upon the lands both at Coxsackie and Redhook.
    The bill in this cause was filed before the chancellor to foreclose the complainants’ mortgage of the 7th of July, 1840, upon the Coxsackie property; in which suit all the prior incumbrancers were made defendants. The bill was taken as confessed ; and the master having reported as to the amounts and priorities of the several liens, the usual decree of foreclosure and sale was entered, on the 5th of January, 1841; except that in the decree the costs of the complainants were directed to be paid in preference to the incumbrances which were prior to their mortgage. Platt, Staats and Bonesteel also filed a bill, by the same solicitor, before the vice chancellor of the second circeit, to foreclose their mortgage of the 9th of June,. 1840, upon the Redhook property ; in which suit all the prior mortgagees and judgment creditors who had liens on that property were made parties. A similar decree was entered in that suit, on the 13th of January, 1841; except that the master was directed to pay the judgments which were prior to the complainants’ mortgage, unless it should be made to appear to the master that the judgments had previously to the sale been paid out of other property of the mortgagor; or unless there should be other funds in the hands of the master, the avails of other property, sufficient to satisfy such judgments wholly or in part; in which case he was only to satisfy the amount of the judgments which should be and remain unpaid. The master sold the Eedhook property on the 2d of March, for about §34,000; which was more than sufficient to satisfy all the liens upon those premises which were prior in point of time to the mortgage of the petitioner upon the Coxsaekie property. And on the 23d of the same month he sold the last mentioned lands, for about §12,600 ; which was not sufficient to pay the costs of the foreclosure, and the mortgage of the petitioner, if the previous judgments as well as the prior specific liens upon that property were paid out of such sale. The petitioner therefore asked that the decree in this cause might be modified, so as to throw the judgments upon the surplus proceeds of the Eedhook premises, after satisfying all other liens thereon which were prior in time to the date of his mortgage on the Coxsaekie property; and that the costs of the complainants might be postponed to the payment of the prior mortgages.
    The objection being made that the decree had been enrolled and could not therefore be modified upon petition, and that an application to the vice chancellor in the other suit would be necessary ; the chancellor intimated an opinion that it might be proper to make an order to stay the master from paying over the funds under the decree until the petitioner could file a bill of review, or a supplemental bill in the nature of a bill of review, to bring the question in controversy between the parties properly before the court. And the counsel who opposed the application thereupon waived all objections of form, and consented to submit the question as to the equities of the parlies to the court, without the expense and delay of filing a bill.
    jD. Burwell, for the petitioner.

      L. Matson, for the opposing creditors.
   The Chancellor.

Upon the hearing of this motion, I was inclined to the opinion that it was a proper case for contribution ; so that the prior judgments should be paid out of the proceeds of the Redhook property and of the premises sold under the decree in this suit, pro rata. Upon further examination of the question, however, I see nothing „ to take this case out of the general principle, established in the case of Clowes v. Dickinson, (5 John. Ch. Rep. 241,) and other cases in this court, that lands consisting of different parcels, subject to a general incumbrance, are in ¡equity to be charged in the inverse order of the alienation pf the several parcels. The Redhook property was more than sufficient to satisfy the judgments and all other incumbrances thereon prior to the 28th of May, 1840, when the owner of the equity of redemption in both parcels mortgaged the Coxsackie premises to the petitioner. If the judgment creditors, therefore, were seeking to enforce the collection of their judgments against the last mentioned premises, to the prejudice of his mortgage, he would have an equitable right to insist that if he paid the judgments he should have an assignment thereof; to enable him to ¡obtain a repayment out of the surplus proceeds of the Red-hook property, in preference to purchasers or incumbrancers of that property whose claims thereon had accrued subsequent to the date of his mortgage. Had there been a mortgage upon both portions of this property, and a suit had been instituted to foreclose that mortgage, and the incumbrancers upon different portions of the premises as well as those who had general liens on the whole had been made parties to the suit, it would have been a matter of ; course, in the decree of foreclosure and sale, to direct the \ different pieces to be sold separately ; and to marshal the ' proceeds arising from the sale of each parcel in such a manner as to pay general liens upon the whole premises out of that part of the fund which was produced by the sale of the Redhook property; so far as should be necessary to give the petitioner the benefit of the priority of his mortgage upon the Coxsackie, lands, over the subsequent incumbrancers of the lands at Redhook or of the whole premises. And the equities of the parties are the same, although the sale of the different portions of the premises took place under decrees in two different suits instituted to foreclose mortgages against distinct parcels of the property. Here the fund arising from the Redhook lands was sufficient to satisfy the specific liens, on that part of the property of the mortgagor, which were prior in date to the petitioner’s mortgage on the lands at Coxsackie; and all the incumbrances on both parcels which were prior liens. The judgments therefore should be left to be paid out of that fund, under the decree of the vice chancellor, which decree provides for the payment of such judgments if they are not otherwise satisfied; so as to permit the monies arising from, the sale under the decree in this suit, after satisfying the prior specific liens on the Coxsackie property and the costs of the complainants, to be applied to the satisfaction of the petitioner’s mortgage on that property. But if the monies arising from the sale in this suit are more than sufficient to satisfy the petitioner’s mortgage, and the prior specific liens upon the premises, the surplus must be applied to satisfy the judgments which are prior in date to the mortgages of Platt, Staats and Bonesteel, and of Teller and Schryver, upon the Redhook property ; so as to give those mortgagees the same benefit of priority, over the subsequent judgment against the mortgagor and the petitioner W. T. Teller.

Although it is usual to direct the prior incumbrances upon the mortgaged premises to be paid in preference to the complainant’s costs of foreclosure under a prior mortgage, there is nothing inequitable, in the present case, in letting the decree remain as it is as to the costs of foreclosure. From the peculiar situation of the premises and of the prior incumbrances thereon, one of which incumbrances was in favor of these complainants, the premises must necessarily have been subjected to the costs of a foreclosure suit to enable the petitioner to obtain the benefit of his mortgage. And he has lost nothing by the suit being instituted for the foreclosure of the mortgage which was junior to his ; instead of their mortgage of the 27th of May, which was entitled to a priority in payment. The decree must therefore be modified in respect to the order of payment of the incumbrancers merely ; so as to give to the petitioner’s mortgage of the 28th of May an equitable priority over the subsequent incumbrances upon the Redhook property, but leaving it to stand as it now is as to the complainant’s costs. And as the costs of this application to modify the decree have been caused by the neglect of the petitioner to present his equitable claim to priority in respect to his mortgage at an earlier day, as he might have done when the decree of foreclosure was applied for, he mu; 4, pay the complainant’s costs on this application j which costs are allowed at $12, without taxation.


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    Evans, executrix, &c. vs. Evans.
    And the residence of the survivor in a foreign country, forms no ground of objection to his continuing to discharge the trust cast upon him by operation of law under the copartnership agreement, if he is perfectly responsible, end is closing up the affairs of the copartnership with reasonable diligence by a competent agent.
    Upon the dissolution of a copartnership by the death of one of the copartners, the survivor is entitled to close up the affairs of the firm, and he will not he deprived of that right by the appointment of a receiver, if he is responsible and acts in good faith.
    Upon the dissolution of a partnership by the death of one of the copartners* the representatives of the deceased member of the firm are entitled to have the stock on hand sold and converted into money, so that the share of the copartnership funds belonging to them may be realized without any unnecessary delay.
    May 4.
    This was an appeal by the defendant from an order of the vice chancellor of the first circuit, appointing a receiver of the property and effects of a partnership which had been dissolved by the death of one of the copartners, and granting an injunction to restrain the survivor, or his agents, from interfering with the property and effects of the firm. The business of the firm had been carried on at New-York by the deceased copartner and his uncle, the survivor j who furnished most of the capital of the firm and resided at Exeter in England. Upon the death of the acting copartner at New-York, the complainant, his widow and executrix, with the assistance of her father, assumed the management of the affairs of the concern until the arrival of the agent of the defendant j about two months after-wards. Horsey, the agent, who had been sent out from England to close up the affairs of the firm, upon his arrival found that the executrix had in her hands of the monies and bills receivable of the firm about $15,000. He being unable to obtain possession of that part of the partnership effects in any other manner, without litigation, agreed with her that if she would give up the monies and bills receivable then in her hands, he would allow her to appoint an agent to join with him in taking an account of the stock and effects of the firm, and making up a balance sheet by way of anticipation as to the final result; and if, upon stating such account, there should appear to be a balance due to the estate of the decedent. Horsey the agent would deposit in the hands of Anthon and Owen, if required, United States bank notes, and-notes belonging to the firm, to the amount then in her hands ; as a security to her for the amount which might ultimately be found due to the estate of her deceased husband. But this arrangement was made upon the condition that she should at once deliver up, and lodge in the hands of Anthon and Owen, the bills and monies in her hands $ to be handed over to the defendant or his attorney upon his complying with the agreement on his part. Pursuant to this arrangement she delivered up to Anthon and Owen $11,920,65 in notes and United States Bank bills, and about $1500 in money, which funds were left by the agent in their hands pursuant to the agreement. Upon the statement of the account of the stock, &c. of the firm, as made by the complainant’s agent, it appeared that if there should be no loss by bad debts, or otherwise, the estate of the decedent would be entitled to about $19,400; including $1435 in money in the hands of the executrix which had not been paid over under the agreement. The correctness of such statement, however, was denied by the affidavits on the part of the defendant.

      E. H. Owen, for the appellant.

      John Anthon, for the respondent.
   The Chancellor.

Laying the agreement between the parties in this case, made by their respective agents, entirely out of the question, I can see nothing in the situation of the parties, or of the property of the firm, to authorize this court to interfere, by the appointment of a receiver, to deprive the surviving copartner of the right to close up the concerns of the firm in the usual way. It appears to he a well settled principle of commercial law that upon the dissolution of the firm, by the death of one of the co-partners, the survivor is entitled to close up the affairs of the concern ; and that this court will not appoint a receiver and deprive him of that right if he is responsible and acts in good faith. (Cary on Part. 292. Gow, 3 Lond. ed. 356.) Here there is no pretence that the defendant is not perfectly responsible ; and the affidavits show that he is, engaged in closing up the affairs of the firm, by a competent agent, with all reasonable diligence. The fact of his residing in England, therefore, is no objection to his continuing to discharge the trust which has been cast upon him by operation of law under the copartnership agreement.

Again ; I am satisfied that the agreement made by Horsey, the agent, has been substantially complied with on the part of the defendant. Even if the account as stated by Fellows is perfectly correct, it does not follow that the complainant will be entitled to the whole $19,400 apparently due. The agreement itself shows that the object of the statement was not to make a final settlement; but to obtain a mere hypothetical computation of the apparent profits of the firm, for the purpose of seeing whether any part of the assets delivered up by the executrix should be placed or left in the hands of the attorneys for both parties, as a security for the amount which might eventually be found due after the debts were collected and the stock converted into cash. It appears by the statement annexed to the complainant’s bill, that the book debts and bills receivable were more than |35,000. And no one who has any knowledge of business as it has been transacted in the city of New-York since 1836, when the last settlement previous to the death of the junior partner appears to have been made, can suppose that the whole of that amount will be collected without loss.

It is not necessary in this stage of the suit to inquire whether the complainant has performed the agreement in good faith on her part, or whether she has retained a part of the cash which she agreed to pay over to Anthon and Owen for the use of the defendant. If the whole fund in her hands has been paid over, the defendant’s agent has left an equal sum in their hands, for the security of the balance which may eventually be found due to her ; which is all he was required to do under the agreement.

In case either party desires it, the cash funds which are lying unproductive in the bank may be invested in the trust company, to accumulate, until the account of the partnership can be taken and closed up. And the executrix, if she deems it for her interest, has a right to insist that the stock on hand shall at once be sold for cash ; so that the remaining debts of the firm may be paid off and the business brought to a close as soon as possible. The vice chancellor, upon a proper application, will of course make the proper orders for that purpose. But 1 see no reason whatever for charging the property with the expenses of a receivership, or of taking the business out of the hands of a competent agent for whose acts the defendant is responsible to the complainant.

The order appealed from must, therefore, be reversed, and the application for an injunction and receiver denied. The costs of the defendant upon the appeal, and upon the original application, to abide the event of the suit; and the proceedings to be remitted to the vice chancellor.


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    The Supervisors of Albany County vs. Durant.
    The board of supervisors of a county may file a bill in equity, in tire nature of a creditor’s bill, to collect a tax, legally assessed against the defendant, out of his equitable interests and choscs in action, upon the return of the collector that tho defendant has no visible property out of which the tax can bo levied.
    Whether an action of dobt will lie against a party to recover the amount of a lax duly assessed against him, and which cannot be levied by the collector for want of visible properly of such party; Quare ?

    May 4.
    This was an appeal, by the defendant, from a decision of the late vice chancellor of the third circuit, overruling a demurrer. The object of the bill was to obtain a satisfaction of the taxes assessed against the defendant, out of his equitable estate and choses in action ; the warrant for the collection of the tax having been returned unsatisfied because the collector could not find any property of the defendant out of which the tax could be levied. The bill charged that in the years 1833 and 1834 the defendant was assessed for the sum of $25,000 of personal property, in the ward of the city of Albany in which he resided, upon which assessment the supervisors of the county assessed a tax, for the first year of $197,50, and for the second year of $215, in the manner prescribed by law j that warrants were duly issued to theucollectors to levy such taxes ; that they called upon the defendant and requested payment of the taxes so imposed upon him in respect to his personal estate, but that he declined paying the same; that such collectors could not find any goods and chattels of the defendant out of which to levy such taxes by distress and sale; that the defendant had no goods or chattels in the county of Albany out of which such taxes could be levied ; and that the collectors, according to the form of the statute, and by reason of their inability to collect the taxes or any part thereof, duly returned the warrants unsatisfied, to the treasurer of the county. The bill further charged that at the time of such assessments the defendant was possessed of the amount of personal property for which he was assessed, and was liable to taxation therefor 3 and that at the time of filing the bill he was a wealthy monied rnan, and had personal property to a large amount which could not be reached by any warrant authorized by law to be issued for the collection of such taxes ; and that he had equitable effects to the value of more than $100 which the complainants could not reach either by such warrants or by execution at law. The bill therefore prayed for a discovery of his property and for a receiver 3 and that his property so discovered, or so much thereof as was necessary, might be applied to the payment of the taxes thus assessed against him, and for general relief.

      S. Stevens, for the appellant.
    Chancery has no power to grant the relief prayed for in the bill of the complainants. There exists no other remedy for the collection of taxes than such as is prescribed in the statutes of the state. There is no law which makes a tax a charge on either the person or the estate of the person against whom it is assessed. (1 R. S. 398, § 36, 37. Id. 397, § 1 to 5.) If the complainants have any remedy, it is at law. If chancery can grant the relief prayed for here, then the § 33 of the act relative to the city of Albany, (Laws of 1826, p. 197,) which makes city assessments a lien on the lots assessed, was unnecessary. Wherever a statute creates a right and prescribes a remedy when no such remedy existed at common law, no other remedy can be pursued than the one prescribed by statute. The provision of the revised statutes relative to creditors5 bills, (2 R. S. 173, 4,) confines such bills to judgments at law. The complainants are not judgment creditors. They are not even creditors. If any bill of this kind can be sustained, the board of supervisors are not the proper complainants. The bill must be filed by the party to whom the demand or debt is due. The monies, when collected, are to be paid over to the officers of the towns and to the county treasurer. (1 R. S. 398, § 6. Id. 399, § 10. Id. 400, §13. Id. 401, § 19.) The board of supervisors have no remedy to compel the collectors to pay over monies collected by them. (2 R. S. 473, § 92.) The debt, in this case, is due not to the county, but to the city of Albany. The county treasurer should have been complainant, as all the monies in this case were payable to him. (1 R. S. 396, § 37.) If a complainant has a remedy at law, he must exhaust it before he can resort to equity. (4 John. Ch. Rep. 671.) If the revised statutes authorize the supervisors to maintain this suit in equity, they can maintain it at law. If there is a duty on the part of the defendant to pay these taxes, the law will imply a promise, and assumpsit or debt will lie. And the bill is defective, as it does not show that this legal remedy has been exhausted.

      John Van Burén, for the respondents.
    The provision of the revised statutes in relation to creditors’ bills, is only declaratory of the pre-existing power of the court of chancery. (2 John. Ch. Rep. 283. 4 id. 671. 20 John. Rep. 554. 5 John. Ch. Rep. 280.) The provisions of the revised statutes in relation to taxes show that the complainants have a right to the taxes imposed on the defendant; and that these taxes are a lien on the personal property of the defendant, inasmuch as they are directed to be levied by distress and sale of his goods and chattels. (1 R. S. 395, 6. Id. 397, 8.) And the bill shows that we have exhausted the remedy given by law. All real and personal estate is liable to taxation. (1 R. S. 387, § 1.) Every person must be assessed in the town or ward where he resides, for all the personal estate owned by him. (1 R. S. 389, § 5.) The supervisors of the county examine, correct and equalize the assessment rolls. (1 R. S. 395.) They issue the warrants to the several collectors for the collection of the taxes assessed. (1 R. S. 396, § 37.) The person taxed, cannot dispute the tax. It is a charge on his whole personal estate. (1 R. S. 397, 8.) It is equivalent to a judgment at law. And the return of the warrants by the collectors to the county treasurer unsatisfied, is equal to the return of an execution at law unsatisfied. There is no complete and perfect remedy in this case at law. The bill shows that a suit at law would be fruitless. The defendant has no real estate, and no personal estate which can be reached by execution. This bill can be maintained upon the acknowledged principles of equity. Chancery affords relief where the remedy is either doubtful or difficult at law. (1 Ves. jun. 416. 1 Ridg. L. & S. Rep. 361. 10 John. 587.) The remedy at law in this case, if any exists, is both doubtful and difficult. The bill may be sustained as a bill of discovery, and for account. In England a bill in equity lies for tithes, tolls and annuities. (5 Price, 473. Bunb. 238.) Also to recover deposits paid in to a joint stock company, on the ground of its being a bubble. (1 Simons, 45.) If we have a remedy at law, we also have a concurrent remedy in equity. Concurrent jurisdiction of courts of equity is not excluded by the adoption of equitable principles by courts of lawr. (2 Swans. 546.) The bill prays for a discovery of the defendant’s equitable assets, and for an account. It is properly filed in the name of the board of supervisors.
    They represent the county, in its character, as a body corporate. All acts and proceedings by or against a county in its corporate capacity must be in the name of the board of supervisors. (1 R. S. 364, 384.) The supervisors audit and allow all accounts against the county, and direct the raising of the sums necessary to defray the same. They control the funds of the county. (1 R. S. 367,385, 386.) The county treasurer has no control over the funds ; he merely receives them and pays them out as directed by the supervisors. (1 R. S. 369, 398, 402.)
   The Chancellor.

The case made by the complainant’s bill presents the question whether a wealthy individual, who is taxed on account of his personal estate, can escape from his liability for the payment of the tax, if he thinks proper to invest his funds in bonds and mortgages, or other property, which cannot be distrained and sold under the supervisors’ warrant to the collector. It is a general principle of the common law, that every person is bound and hath virtually agreed to pay such particular sums as are charged upon him by law, or by the sentence or direction of a competent tribunal having legal authority to impose such charge. (3 Black. Com. 158.) And where a statute gives a right without furnishing an adequate remedy to enforce such right, it is a part of the established jurisdiction of this court to lend its aid and furnish an effectual remedy where it cannot be had by a common law proceeding. Here the law has imposed a tax upon the defendant, in respect of the estate of which he is the owner, to be collected for the benefit of the city and county in which he resides. And if the mode prescribed by the statute for the collection of the tax is found to be ineffectual for that purpose, the common law or the court of chancery must supply the defect. Where a charge upon the person of an individual is created by statute without prescribing the mode in which the payment of the charge is to be enforced, the common law gives an action of debt to recover the amount of the charge thus created. Thus where a revenue law directs that goods imported shall be charged with certain duties, if the owner of the goods, or the importer, neglects to pay such charge, an action of debt will lie against him to recover such duties. (Attorney General v. Strangforth, Bunb. Rep. 96. United States v. Lyman, 1 Mason’s Rep. 482. United States v. Hathaway, 3 Idem, 324. Meredith v. The United States, 13 Peters’ Rep. 486.) Whether an action of debt would lie against the defendant in the case under consideration, to recover the amount of the taxes assessed upon him, after the supervisors had exhausted the remedy prescribed by the statute, is a question not material to be discussed here; as I am satisfied it was not necessary to bring a suit at law, and exhaust the remedy by judgment and execution, before this court could have jurisdiction to compel payment out of the equitable assets and choses in action of the defendants. The tax itself, after it had been legally assessed, was conclusive as to the amount which the defendant was bound to pay. And the assessment of the tax and the issuing of the warrants to the collectors to levy the same out of the property of the defendant, and the return of such warrants unsatisfied for want of visible property whereon to levy, was equivalent to the recovery of a judgment and the return of an execution thereon unsatisfied, in other cases. For, by such proceedings, the complainants have exhausted the remedy which the statute gives them against the property of the defendant. In analogy, therefore, to the proceedings by creditors’ bills in other cases, I think the complainants had a right to come into this court for relief, as soon as the collectors had made their return to the county treasurer, in the mode prescribed by law, that the defendant refused to pay the taxes, and that he had no tangible property out of which such taxes could be levied upon the warrants delivered to them. I think also the allegations in the bill are sufficient to show that the collectors had complied with every thing required by the statutes, in making their returns to the county treasurer.

The remaining question is whether the suit is properly instituted in the name of the supervisors of the county, instead of the county treasurer. Although the tax, when collected, is to be paid to the county treasurer, he does not appear to be the proper person to represent the county as the complainant in a suit for its benefit, under the provisions of the revised statutes. The liability and duty of the defendant to pay these taxes are to the people of the county in their corporate capacity; as their funds in the hands of the county treasurer are diminished to the extent of the taxes uncollected. For all the other officers to whom the taxes are payable are first to receive the amounts payable to them for other purposes, and the balance is to be paid into the county treasury for county expenses, (1 R. S. 396, 37.) The statute makes the county a corporation for certain purposes, and directs that all acts and proceedings by or against a county in its corporate capacity shall be in the name of the board of supervisors. (1 Idem, 364, § I, 3.) It also authorizes the supervisors of a county to bring suits to enforce any liability or any duty enjoined by law to the body which they represent. (2 Idem, 473, § 92.) I conclude, therefore, that this bill was properly filed to reach the equitable interests and choses in action of the defendant for the payment of these taxes, and that the suit was rightfully brought in the name of the supervisors of the county of Albany, to the inhabitants of which county in their corporate capacity the monies due from the defendant for taxes belong.

The decretal order of the vice chancellor must, for these reasons, be affirmed with costs.

       Reversed, on appeal !.o the court for the correction of errors, in Beecm-. her, 1841-