text:
    Colton and others vs. Ross and others.
    A bill may be framed with a double aspect, where it is doubtful what relief the complainannt is entitled to on the facts of his case. 1
    In such case the relief prayed for may be in the' alternative; but it_must ; be consistent with the case made by the bill.
    Where the case made by the bill entitles the complainant to one of two kinds of relief, but not to both, the prayer should be in the disjunctive.
    So, if it be doubtful whether the facts of the case entitle him to the specific relief prayed for, or to relief in some other form, his prayer concluding for general relief should be in "the disjunctive.
    In such case, although the complainant should not be entitled to the relief specifically prayed for, he may, under the general prayer, obtain any other specific relief, consistent with the case made by the bill.
    But where the complainant prays for particular relief, and for other relief in addition thereto, he can have no relief inconsistent with such particular relief, although it should be founded upon the bill.
    The court of chancery has no original- jurisdiction to try the validity of wills of personal estate.
    The jurisdiction of the- court exists only in case of an appeal from the decision of the surrogate. . . "
    Where no appeal is made to "the court of chancery, the probate of the . will before the surrogate is final and conclusive, as to the personal estate.
    The court of" chancery has no jurisdiction to set aside a will of real estate, on the ground of the incompetency of the testator; and wherever the - ' complainant has perfect remedy at law, if the defendant raises the ob- • jection by demurrer to the bill, or insists upon it in his answer, the court will refuse- to sustain the suit.
    < The court, however, frequently decides upon the validity of a will.of real estate, where the question arises collaterally; but in those cases, if the - heir insists upon the invalidity of the will in his answer, an issue will be awarded to try' the question at- law.

      The bill in this cause was filed to set aside the will of Wil?iam Ross deceased. It appeared by the bill that the will disposed of both real and personal estate, and that the ex- ’ ecutor, in 1822, duly proved the will before the surrogate of New-York, and obtained letters testamentary thereon. The complainants alleged that the testator at the time of making the will was of unsound mind, and wholly incapable of making a valid will. And they, among other things, prayed that the will might be declared void, and that they might be let in to their share of the estate; and that if it should appear to the court the will was valid, that the executor might be removed from his trust for mismanagement; and for further relief, &c. The executor demurred to the bill, so far as it sought to set aside the will as to the personal estate, on the ground that the sentence of the surrogate in favor of the same was conclusive, and that this court could not review his decision on that question, except upon an appeal; ■and,-so far as it sought to impeach the will as a devise of the real estate, upon the ground that the complainants’ remedy was perfect at law.
    April 19th.

      R. Sedgwick E. N. Mead, for the complainants.

      P. A. Jay fy J, Greenwood, for the executor.
   The Chancellor.

There is no doubt of the right of a complainant, in certain cases, to frame his bill with a double aspect, where it is doubtful what relief he may be entitled to on the facts. In such a case the prayer for relief may be in the alternative; but the relief must always be consistent with ‘ the case made by the bill. Here the complainants claim as heirs at law and next of kin to the testator, under a positive allegation that no valid will was ever made'. That part of the prayer which is for special relief, if the court should be sat-' isfied there was a valid will, is therefore wholly inconsistent with the case made by the bill. Another substantial objection is that the prayer for relief in this case is not in the alternative; but the last part of the relief prayed for is in addition to the prayer that, the will may be declared void. Where the case made by the bill may entitle the complainant to one kind of relief or another, but not to both, the prayer should be in the disjunctive. So, if the complainant is in doubt whethér the facts of his case entitle him to a' specific relief prayed for, or to relief in some other form, his prayer, concluding for general relief, should be in the disjunctive. And in such a case, although he is not entitled to the -relief specifically prayed for, he may, under the general prayer, obtain any other specific relief, provided it is consistent with the case made by the bill* (Per Thompson, J. 1 John. R. 559. 13 Ves. Jun. 119. 1 John. Ch. R. 117. 2 Young & Jervis, 33. 2 Peters’ R. 595.) But if a. complainant prays for particular relief, and other .relief in addition thereto, he can have no relief inconsistent with such particular relief, although founded upon the bill.

1 So far as respects the personal, estate, the probate of the will, before the surrogate, is'final and conclusive; and this court has no jurisdiction to try its validity, except upon appeal from that decision, in Lynn v. Beaver, (Turner & Russ. R. 67,) Lord Eldon says: “ With respect to wills of personalty, after probate .has been granted by the.ecclesiastical. court, this court is bound by the judgment, and has no jurisdic-" tion to try whether the will is complete or not.” "(See also 2 Rob. on Wills. 50. 1 Mad. R. 1. Archer v. Morse, 2 Vern. R. 8.) This court frequently decides upon the validity- óf a will of real estate, when the question comes before it collaterally ; but if the heir insists upon the invalidity of the will, in his answer j an issue is awarded to try the question at law. It is however well settled that the heir cannot file a bill in this court" to set aside a will,- on the ground of the incompetency of the testator, if the defendant chooses to avail himself of the objection in the proper- stage of the suit. In Kerish v. Bransby, (3 Bro. P. C. 358,) Lord Macclesfield set aside a will on the ground that it was fraudulently obtained. On appeal to the house of lords, the objection was taken that the question as to the validity of the will was only triable at law; an.d his decree was reversed; The case of Jones v. Jones, in the exchequer," (7 Price’s R. 663,) was very similar to that now under consideration. The heir at law filed his bill to establish his title against a will alleged to be void for fraud and collusion, • and for various other reasons. The bill, as in this case, charged that the defendant had possessed himself of the title deeds, &c. It prayed for a discovery and account, and for an injunction and a receiver; and that the pretended will might be set aside and declared void. The defendant demurred for want of equity, and insisted that the party could not come into a court of equity to try the validity of the will. The court sustained the objection, and "allowed the demurrer.- They say. the real question is whether the will is valid or not; and that is a question which we cannot determine: some of the old cases imply a power in courts of equity to interfere in cases of wills procured by fraud; but it is now well settled that they cannot. The same question, and apparently in relation to the same will, and by the same conplainant, was brought before Sir William Grant, the master of the rolls, in 1817, (3 Meriv. 161;) before Sir J. Leach, vice chancellor, in 1818, (3 Mad. R. 1 ;) ■ and subsequently before Lord Eldon, on appeal, in 1822 ; and at each time it received a similar decision. In Jones v. Frost, (Jacob’s R. 466,) the lord chancellor says, the bill seeks to give the court jurisdiction to try the validity of a will of real estate, as to which it has no jurisdiction; and to try the validity qf a will of personal estate, as to which it also has no jurisdiction.

If these recent decisions in the English courts of equity are correct, they are decisive of the question in this cause. And I have not been able to find any case in'which a court of equity has assumed jurisdiction to set aside a will, on the ground of the testator’s incompetency, where an objection to the jurisdiction was taken in due season.

In Townsend v. Sice, before this courts, (2d March, 1830,) the parties claimed under different wills; and after they had taken proofs in the cause, issues were awarded to try the validity of the wills. But those issues were directed without examining the question of jurisdiction, which was not raised, On the application for a re-hearing and a new trial, an opinion was intimated that the probate of the will was probably conclusive upon the parties as to the personal estate; but as the defendants would be entitled to the benefit of their objection at the hearing, the court refused to interfere at that time. If the defendant does not object to the jurisdiction, this court may' undoubtedly award an issue depisavit ve non; and, upon the finding of the jury, may pronounce against the validity of a will of real estate. But if the complainant has a perfpCt remedy at law, and the defendant raises that objection by demurrer to the bill, or insists on it, by way of objection to the jurisdiction of the court, in his answer, the complainant should be left to seek his redress in the appropriate tribunal. (2 M’Cord’s Ch. R. 71.)

The demurrer .must be allowed, and the bill dismissed with costs. " "


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Deveau vs. Fowler.
    The creditors of a patnership have an equitable right! to payment out of tha partnership effects, in preference to the creditors of the individual partners.
    Where, on the dissolution of a copartnership existing between D. & F.j D. agreed with F. that F. should take all the stock and effects, and pay all the debts due by the firm, and afterwards F. became insolvent, and threatened to dispose of all the partnership property, and appropriate the same to his . ownindividual use,.leaving the debts unpaid ; upon a bill filed for that purpose, an injunction was granted,' restraining F. from disposing of the partnership property in a different manner from that stipulated in his agreement with D. ' .
    Where the administrator of a deceased partner assigned all his interest in the partnership effects to the survivor, under an agreement "that the latter should discharge all the debts of the firm, it was held, that this assignment and agreement did not destroy the lien or equity which existed in favor of each partner, on the dissolution, to have the partnership property applied to the payment of the partnership debts.
    April 19th.
    ' Tnts was an application to dissolve an injunction, for want of equity appearing on the face of the bill. The parties were partners in the boot and shoe business. On the dissolution of the copartnership, it was agreed that the defendant should take all the stock and effects, and pay off all the debts due by - the firm, and indemnify the complainant against the same. The bill alleged that the defendant was insolvent, and that he threatened to dispose of all the partnership property, and appropriate the same to his own individual use leaving the debts unpaid. The complainant prayed for an injunction and receiver, and that the property and effects which formerly belonged to the firm, might be applied in payment of the partnership debts.

      W. Silliman, for the complainant.

      J. Hoyt, for the defendant.
   The Chancellor.

The case of Smith v. Haviland and Field, before Chancellor Jones, in June, 1827, appears to be decisive as to the question raised by his bill. From the reporter’s note of the decision in that case, with a copy of which I have been furnished, it appears that the administrator of a deceased partner assigned all his interest in the partnership effects to Haviland, the survivor, under an agreement that the latter should pay and discharge all the debts of the ' firm. The surviving partner became insolvent. The bill alleged that he had also assigned over his property, including the effects of the late firm, to Field, and that the complainant was apprehensive that the effects would be wasted, leaving the debts unpaid. It therefore prayed for an injunction; and that the property, or so much thereof as was necessary, should be applied to satisfy the partnership debts. A.demurrer to the bill was overruled. The defendant Haviland then put in an answer denying the assignment, and also denying any agreement that the effects of the firm should be applied to the payment of the debts of the partnership which had been assumed by him; and he insisted that the complainant had no interest in those effects, either under the agreement or otherwise ; but that they were his sole property. The chancellor held that the effect of the agreement was to transfer all the equitable rights of the deceased partner to the survivor, who had the legal right before; he becoming responsible for the payment of all the debts of the firm, whether the property was sufficient to pay them or not. That the agreement only transferred the interest of the administrator in the surplus, if any there should be; but did not destroy the lien or equity which existed in favor of each, on the dissolution, to have the partnership property applied to the payment of the debts.

I can see no reasonable objection to this decision iro point of equity, where the rights of bona fide holders of the property are not affected. It must therefore be considered the settled law of this court. Several questions of this kind have recently arisen in England. But as the decisions appear to have turned on the construction of a particular provision in their bankrupt law, giving the property to the creditors of such person as should be the visible owner. &c. I do not consider it necessary to notice them particularly. (In Re Gilpin, 3 Dow. & Ry. 636. Ex parte Burton, 1 Glynn & Jam. 207. Ex parte Usborne, id. 458. Lingen v. Simpson, 1 Sim. & Stu. 600.) It is a well settled principle of equity that the creditors of a partnership concern have an equitable right to payment out of the partnership effects, in preference to the creditors of the individual partners. The fair presumption, in the absence of any express agreement to the contrary, therefore, is, that it was not the intention of the complainant that the effects assigned to the defendant should be appropriated to the private use of the latter, leaving the debts of the firm unpaid.

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


text:
    Mead vs. Merritt and Peck.
    Where a party is within the jurisdiction of the court, and the court acquires jurisdiction of his person, it may, although the subject matter of the suit is situated elsewhere, by injunction and attachment, compel him to desist from commencing a suit at law either in this state or in any foreign jurisdiction ; and may also in the same manner compel him to execute a conveyance or a release in such form as is necessary to transfer the legal title to the property in question, according to the laws of the country where the same is situated, or as will be sufficient to bar an action in any foreign tribunal.
    The court of chancery, however, will not by injunction restrain a suit or proceeding previously commenced in a court of a sister state, or in any of the federal courts.
    An executor or administrator cannot, either at law or in equity, set off a demand purchased by him after the death of the testator or intestate, against a debt due by the estate to the person against whom he held the demand so purchased.
    It is against the principles of sound policy to permit executors to1 purchase up claims against the creditors of the estate of the testator, for the purpose of obtaining a set off in equity.
    An executor cannot set off in chancery an original debt due to him personally, against a claim of the defendant on the estate.
    Where there is no set off at law, there must be special circumstances equity to authorize a set off in chancery.
    April 19th
    S. Sherwood, who died in the state of Connecticut, was indebted to the defendant Peck; who afterwards transferred the demand to Merritt, in security for a debt due to the latter. After the death of Sherwood, the complainant, as his executor, obtained letters testamentary on his estate, before the court of probate in that state. He subsequently obtained from the same court an order for the sale of the testator’s real estate, in Connecticut, for the payment of his debts. He also executed a bond with security according to the laws of that state for the faithful execution of his trust, and conditioned to pay to the creditors their respective portions of the estate of the decedent. A suit was afterwards commenced against the executor in the supreme court of this state, in the name of Peck, to recover the amount of his debt out of the monies in the hands of the former. The supreme court decided that a suit could not be sustained against the executor here, and that the remedy of the creditor was by a resort to the probate court under whose direction the estate had been sold. (Peck v. Mead, Bxr. &c. 2 Wend. R. 470.) The executor thereupon filed his bill in this cause, alleging, among other things, that he had purchased a note against Peck, which he insisted was an equitable set off against the claim of the latter upon Sherwood’s estate. He also alleged that the demand of Peck, who was insolvent, had been assigned to Merritt to defeat the complainant’s claim to a set off; that the defendants were about to‘institute proceedings against him and his sureties in the state of Connecticut; and that by the laws of that state, he could not retain any part of the money of the estate in his hands to meet the note which he had obtained against Peck. The master allowed an injunction restraining the defendants from proceeding in that state to recover the amount of their demand. On the coming in of the answer of Merritt, who denied all fraud in obtaining the assignment of the claim of Peck, an application was made to dissolve the injunction.

      W. Silliman, for the complainant.

      W. N. Dyckman, for the defendant Merritt.
   The Chancellor.

Where a party is within the jurisdiction of this court, so that on a bill properly filed here, this court has jurisdiction of his person, although the subject matter of the suit may be situated elsewhere, it may, by the ordinary process of injunction and attachment for contempt, compel him to desist from commencing a suit at law, either in this state or any foreign jurisdiction. And it may, in the same manner, compel him to execute a conveyance, or release, in such form as may be necessary to transfer the legal title to the property according to the laws of the country where the same is situated; or which will be sufficient in law to bar an action in any foreign tribunal. The court of chancery in England has even gone so far as to restrain the defendant from proceeding in a suit previously commenced in the court of sessions in Scotland. (Bushby v. Munday, 5 Mad. R. 297.) In that case Sir John Leach admits that, by the act of union, the courts of Scotland are entirely distinct and independent jurisdictions. And says that the same principles would apply were the suits which are sought to be enjoined pending in any foreign jurisdiction. Although this court has the physical power to act coercively on the parties within its jurisdiction to the same extent, it has frequently decided that it would not sustain an injunction bill to restrain a suit or proceeding, previously commenced in a court of a sister state; or in any of the federal courts. The same principle has been adopted by the supreme court of the United States. (Driggs v. Wolcott, 4 Cranch, 179. McKim v. Voorhees, 7 id. 278.) And I am not aware that any court of equity in the union has deliberately decided that it will exercise the power, by process of injunction, of restraining proceedings which have been previously commenced in the courts of another state. Not only comity, but public policy forbids the exercise of such a power. If this court should sustain an injunction bill to restrain proceedings previously commenced in a sister state, the court of that state might retaliate upon the complainant, who was defendant in the suit there; and by process of attachment, might compel him- to relinquish the suit subsequently commenced here. By this course of proceeding, the courts of different states would indirectly be brought into collision with each other in regard to jurisdiction ; and the rights of suitors might be lost sight of in a useless struggle .for what might be considered the legitimate ppwers and rights of courts.

The injunction in this case, so far as it operates to restrain the defendants from ‘ applying to the court of probates in Connecticut, to compel the complainant and his sureties to pay their demand out of the fund, which is under the exclusive control of that court, is directly opposed to these principles, which may now be considered the settled law of this country. The estate of the testator must be applied in satisfaction of his debts according to the laws of the state where he was domiciled, and where the property was situated. If those laws give it to the assignee of Peck, to the exclusion of the complaihant’s set off, the latter has no right to have a different rule of equity applied to his case here.

Independent of this question of jurisdiction, it is evident that the complainant has no right to the equitable interposition of this court. The note of Peck, Which he purchased since the death of Sherwood, and now holds in his own right could not, at law, be set off against Peck’s demand upon the estate of the testator. And it would be inconsistent with the principles of sound policy to permit an executor to buy up claims against creditors of an estate, for the purpose of obtaining a set off in equity. In Harvey v. Wood, ( 5 Mad. R. 459.) Sir John Leach decided that an executor could not set off in chancery an original debt, due to him personally, against a claim of the defendant on the estate. That where there was no set off at law, there must be special circumstances of equity to authorize a court of chancery to interfere. Here Merritt who is the bona fide assignee of Peck, for a valuable consideration has at least equal, if not superi- or equity. In such a case this court will not interfere and-deprive him of his legal right.

The injunction must therefore be dissolved.


text:
    Howland vs Scott.
    Where S. owned a farm in the county of Queens, and about ten acres in addition, and made an agreement with F. to exhange with him the ten acres for six acres adjacent to the farm, and possession was respectively taken by S. and F.; and before the conveyances were executed on this exchange, S. mortgaged his farm to G., and by mistake included in the mortgage the ten acres instead of the six acres, and the mortgage was foreclosed in chancery inl825, and the mortgaged premises ordered to be sold ; and S., who was alone interested in the surplus to be raised on the sale, employed E., an auctioneer, to sell the property to pay off the mortgage; and the property was exposed to sale and bid in for S.; and E. also attended the master’s sale. as the agent of S., at which sale a map, which had been made of the farm, including the six acres, was exhibited, as containing the property to be sold; and the property was sold with reference to the map, and for an amount much exceeding the mortgage and costs, and H. became the purchaser; and after the sale, S. obtained the legal title to the six acres ; and having received the surplus monies and becoming insolvent; upon a bill filed by H., praying for a decree to compel S. to convey to him the six acres; it was held, that S. having obtained the whole consideration money for the land, including the six acres, under circumstances which amounted to a fraud upon H., S. would be considered as a trustee for H., and would be decreed to convey to H. the six acres.
    April 20th.
    This cause was heard on pleadings and proofs. The facts are stated in the opinion of the court.
    6r. Brinckerhoff, for the complainant.

      R. Emmett, for the defendant.
   The Chancellor.

From the pleadings and proofs in this cause, I consider the following facts established : Scott was the owner of a farm in the county of Queens, and of another piece of land of about 10 acres. He made an agreement to exchange the ten acre piece with J. Fowler for six acres adjacent to the farm, and possession was taken accordingly. Before any conveyances were executed on this exchange, Scott mortgaged his farm to the Globe Insurance Company, and by mistake the ten acre lot was included in the mortgage, instead of the six which had been taken in exchange therefor. The mortgage was foreclosed in the equity court of the first circuit in May, 1825, and the mortgaged premises were ordered to be sold. Scott, the defendant, who was exclusively interested in the surplus to be raised on the sale, employed Sergeant, an auctioneer, to sell the property to raise the money to pay off the mortgage; and a map was made of the farm, showing its location and boundaries, and including the six acre tract. The property was put up and bid in for the defendant. Sergeant was then employed to attend the master’s sale as auctioneer, and put up printed notices of the sale of the farm by the master, and the map was exhibited as containing the property to be sold. Sergeant attended the sale, and in fact, acted as auctioneer, and as the agent of the defendant, to make the property produce its highest value. Sergeant denies that he acted as such agent at the request, or by the procurement of the defendant; but his statement is contradicted, in several important particulars, by the testimony of the master, and by that of Mr. Brinckerhoff and W. Jackson, as well as by the map which he exhibited at the sale. The weight of testimony is decidedly in favor of the fact that he acted as the agent of Scott, and with his consent and concurrence. The property was put up and sold with reference to the map then produced, and which included the six acres as a part of the farm. The bidders and the master so understood it; and the latter, who knew the six acres were not in the description in the mortgage, supposed the object of the defendant was to increase the surplus by selling the six acres with the residue of the farm. Although Sergeant and Nelson knew the six acres were not included in the mortgage, I am satisfied the defendant intended the bidders should understand the property to be sold was that described and plainly marked as such on the map; and there is not the least doubt that they did so understand it, and bid accordingly, by which means a large surplus was produced beyond the amount of the mortgage and costs. If the defendant intended to insist upon the payment of the whole purchase money, and to retain the six acres to himself, under such circumstances, it was a gross fraud upon the purchaser, against which a court of equity is bound to relieve. Something was said as to the mistake about the six acres, before the purchase money was paid ; and probably the complainant was not bound to pay his bid until the question was settled, or the value of the six acres deducted. But I see no good reason why he should suffer because he thought proper to submit it to the court, to do him justice in the premises. The surplus was paid into court, and after the sale, Scott obtained the legal title to the six acres, by a conveyance from the person with whom the exchange had before been made. The complainant applied to the equity court, to compel the defendant to procure for him a good title as to the six acres; and if he could not do that, to have the value thereof refunded to him out of the surplus money remaining in court. That court denied the application, and permitted the defendant to take the money out of court. This decision was reversed, on appeal to Chancellor. Sanford; but, in the mean time, the defendant obtained the surplus monies from the clerk, and being insolvent, the complainant has now no remedy except against the land. The complainant asks a decree compelling the defendant to convey to him the six acres of land which is not included in the description in the master’s deed. The defendant having obtained the whole consideration money therefor, and under circumstances which amounted to a gross fraud on the purchaser, 1 think Scott must be considered, in equity, as having taken the legal title from Fowler as a trustee for Howard. The defendant must therefore, within ten days after service of a copy of the decree in this case, convey to the complainant, by a good and sufficient deed to be approved of by a master residing in the city of New-York, the six acres of land, and deliver possession thereof to him. He must also pay to the complainant his costs of this suit to be taxed, and the injunction must be made pérpettial: and the complainant is to have execution to enforce the performance of this decree, and compel the payment of such costs.


author: The Chancellor

text:
    In the matter of Seaman and others, receivers, guardians, &c.
    All the proceedings in the cases of special guardianship to sell infants’ estates must be filed in the office where the order for the appointment of the guardian was entered.
    A strict compliance with the 154th rule requiring guardians, receivers and committees to file inventories and accounts, will be rigidly enforced.
    In ordinary cases, |)Where!¡a¡jguardian, &c. neglects to comply with the rule, an order will be made requiring him within twenty days after service of a copy of such order on him personally, or at his residence, in case of his absence to file the inventory and account, and to pay the expenses of the order and proceedings thereon, or that an attachment issue against him.
    And the order must also contain a provision requiring the register or assistant register to cause a copy of the same to be served, and to certify the default of the-delinquent to the court, if he fails to comply with the order.
    It is the duty of the solicitor who procures the appointment ef a guardian, &c. to inform him of his duties under the rule, and how to perform them, and of the consequences of his neglect.
    May 23d.
    The assistant register, pursuant to the general rule of the court, presented a list or written statement of receivers, guardians and committees who had neglected to file their inventories and accounts, as required by the 154th rule. He suggested to the court- that in consequence of the proceedings, in the cases of special guardianships to sell infant’s estates; being sometimes filed and entered in a different office from that in which the order for the appointment of the guardian had been entered, it become difficult in such cases to ascertain whether the property had been sold, and whether the special guardian was in default.
   The Chancellor

said, that hereafter all the proceedings In such cases must be filed and entered in .the office where the order for the appointment of the guardian was entered. He also said it was absolutely necessary to enforce the filing ■of these inventories and periodical accounts, in order to protect the rights of orphan children, and others, whose property was placed in the hands of guardians, committees, &c. That ñ was the determination of the court to compel a strict compliance with this rule; and also with that which makes it the duty of 'the injunction masters to examine and report upon such accounts. He further stated that it was the duty of the solicitor who procured the appointment of a guardian, committee or receiver, to give him the necessary directions as to making out his inventory, and the mode of keeping and rendering his periodical accounts; and also to inform him of the consequences of his neglect to comply with this general rule of the court. . That hereafter, if these inventories and accounts were not filed in due season, the court would direct the attorney general to prosecute the bonds of the delinquents and their sureties, or would proceed by attachment to enforce the performance of that duty.

May 30th.

After taking time to consider as to the best and least expensive mode of proceeding against the delinquent guardians, &c. the chancellor this day decided that in ordinary cases he would direct a special order to be entered, requiring the guardian, committee or receiver, within twenty days after the service of a copy of such order on him personally, or at his residence in case of his absence, to file the inventory and account, and to pay the necessary expenses of the order and of the proceedings thereon, or that an attachment issue against him; and directing the register or assistant register with whom the order was entered, to cause a copy of the same to be served on the delinquent, and to certify his default to the court, if the terms of the order were not complied with, within the time prescribed.

The following was settled by the Chancellor as a precedent of an order in such cases:

The assistant register of this court, [or the clerk in this court for the first circuit,] having presented a list or written •statement of the several guardians, receivers and committees whose appointments were entered in his office, and who have neglected to file their inventories, or accounts, for more than three months after the time limited for that purpose by the rules of the court; by which list or statement it appears that C. D. of Brooklyn, in the county of Kings, the committee of A. B. the above named lunatic, [or the general or the special guardian of, fyc.; or the receiver appointed in this cause,] has neglected to file an inventory of the estate committed to his care, [or the periodical account of his said trust,] as required by the rules and practice of this court: It is therefore ordered that the said C. D. within twenty days after service of a copy of this order, file with the said assistant register [or clerical the said inventory or account, as required by the 154th rule of this court; and pay to the said assistant register [or cleric,1 the costs of drawing and entering this order, and of all other proceedings thereon, or that an attachment issue against him. And it is further ordered that the said assistant register [or cZerZe,] cause a copy of this order to be served on the said C. D. by the delivery of the same to him personally, or, in case of his absence, to his wife or servant, or some member of the family at his dwelling house or place of abode; and if the said C. D. shall neglect to comply with the terms of this order, the said assistant register [or clerk,] is further directed to certify such neglect to this court, on the next regular motion day thereafter; to the end that an order for an attachment may be entered thereon.”


text:
    Decaters and others vs. La Farge and others.
    Only the abbreviations of the pleadings and depositions in a cause for the use of counsel are taxable, and not full copies of such pleadings and depositions.
    May 30th.
    On the taxation of costs in this cause the complainants’ solicitor charged for two full copies of all the pleadings and proofs in the cause for the use of his counsel. This charge being objected to on the part of the defendants, the question was, by consent of the parties, submitted to the court

      W. li. Harrison, for the complainants.

      ^enri/’ f°r the defendants.
   The Chancellor.

The statute has prescribed the only allowance which is necessary or proper to be taxed against the opposite party in such cases. It is an allowance of three cents for each folio contained in the pleadings and proofs, for actually abbreviating the same for the use of counsel, other than the solicitor in the cause. This is the only item which is properly taxable. The counsel who- is to prepare for the argument ought not to be encumbered with full copies of all the proceedings, containing long recitals and irrelevant matters. It is the duty of the solicitor to prepare for him an abbreviation, embracing only the material facts and statements contained in the pleadings and proofs. The vice chancellor must be directed to disallow these charges.


text:
    In the matter of Wilson and others, infants.
    •Upon an application to sell the estate of an infant, under the statute, the court will appoint liis- general guardian, if he has one, as the special guardian.
    Where, however, it' appears that the general guardian cannot procure the ' requisite security, another person may he appointed the special guardian to sell the property.
    On an application to appoint a special guardian to sel the estate of infants, under the statute, it appeared that the infants had a general guardian appointed by the surrogate, but a different, person was recommended by him as the special guardian.
   The Chancellor

said the general guardian of the infants was the proper person to be appointed to sell their real estate ; and that another person ought not to be appointed for that purpose without some special reasons shown to the court, That such a proceeding would subject the infants to extra expense, and require two separate accounts of expenditures for their support.

On a subsequent day the father of the infants, who was their general guardian, presented a new petition, showing that he was anxious to accept the trust himself, but that, after diligent application, he was unable to procure the requisite security, as required by the rules of the eourt. An order was thereupon made for the appointment of another person as special guardian, for the ^purposes of the application.


author: The Chancellor The Chancellor."

text:
    Townsend vs. Townsend.
    Where a plea to the bill has been overruled on the merits, the same matter cannot be set up in the answer as a bar to the suit, without the special permission of the court.
    Where an interlocutory decision has been made, the court has no power to extend the time for appealing, it being fixed by statute.
    Nor can the court vacate the order and cause it to be entered as of a more recent date, to enable a party to appeal therefrom.
    The bill was filed in this cause by the husband against his wife for a divorce on the ground of adultery. The defendant pleaded a decree of separation between the parties to which they had both consented, as a condonation of the offence and in bar of the suit. On argument of the plea the same was overruled on the merits. And notice of the order overruling the plea was "duly served on the solicitor for the defendant. After the time for appealing had passed, and the time for answering had expired, but before any order to take the bill as confessed had been actually entered.
    May 26th.

      JR. Sedgwick, in behalf of the defendant,
    moved that the order overruling the plea be vacated and entered as of a more recent date, so as to give the defendant the right to appeal therefrom, and if that could not be allowed, he asked permission for further time to answer the bill, avowing his intention to set up the same matter in the answer as a bar to the suit. He cited Mitf. PI. 244; Hoare v. Parker, 1 Cox’s Ca. 228.

      H. Davies, for the complainant,
    insisted that as the time limited by law for appealing had actually expired, the court ought not to make an order which would be a mere evasion of the statute.
    June 9th.
   The Chancellor

decided that as the proceedings on the part of the complainant had all been regular, and there had been no missaprehension or mistake on the part of the defendant’s counsel, it was not in the power of the court to extend the time for appealing. Such a proceeding he said would be a virtual repeal of the statute ; that this case differed from that of Smith v. Smith, ( 1 Paige’s R. 391,) where the time for appealing was prescribed by a rule of the court. But he gave the defendant time to put in an answer, provided she did not set up the same matter, which had been decided on the plea to be insufficient, as a bar to the divorce.

The counsel for the defendant asked the chancellor to reconsider the latter part of the above decision. He insisted that the defendant had the right, without any permission from the court, to set up the same matter in the answer in bar of the suit, which had been previously overruled in the form of a plea. To this point he cited Mitf. PI. 244; 3 P. Wms. 95 ; 2 Ves. sen. 491; 1 Atlc. 450; 1 Cox’s Ca. 228.

The Chancellor."

After a full examination of all the authorities on this question, I find myself strengthened in the opinion before expressed, that the defendant cannot set up in the answer, as a bar to the suit, the same matter which has been overruled, on the merits, in the shape of a plea. Most of the cases cited by the defendant’s counsel were examined by Sutherland, J. and Golden, senator, in the case of Murry v. Coster, (4 Cowen’s R. 617,) and those judges evidently came to the conclusion that the expression in Lord Redesdale’s Treatise was too general; and that, taken in the broad sense contended for by the counsel of the defendant, it was not sustained by the authorities there referred to. Those cases only establish the principle that where a plea is merely informal, or where it may be a good answer as to some part of the bill only, the court permits it either to stand for an answer with leave to except, or what amounts to the same thing in fact, gives special permission to the defendant to insist upon the same matters in his answer, in bar of the relief, but not in bar of the discovery sought by the bill. This is probably what Lord Redesdale means when he says: “ If a plea is overruled, the defendant may insist on the same matter by way of answer.” The same expression was used by Chancellor Kent in Goodrich v. Pendleton, (4 John. Ch. R. 551.) This expression was perfectly proper in the sense in which it was there used, although he says nothing as to the leave of the court. He was merely elucidating the proposition that whatever was a good bar to the action, if insisted on by way of plea, would be equally valid if the same defence was set up in the answer. Butin a subsequent case, (Coster v. Murry, 7 John. Ch. R. 172,) he expresses his opinion, that there is no case in which the same matter which has been decided to be invalid as a plea, has been permitted to be insisted on in the answer, even to a bill for relief, without the leave of the court. The expression of Lord Thurlow, in Hoare v. Parker, (1 Cox’s Ca228,) evidently means that he knows of no instance where, upon the disallowance of a plea to the discovery, the court have given permission to the defendant to insist upon the same matter in his answer as a bar to the discovery. He recognizes the principle that the court will give permission to the party to insist upon the same matter in bar of the relief; but he no where intimates that it can be done, even as to the relief, without special leave of the court.

The practice of the court of chancery in this respect is perfectly analogous to that of courts of law. There, if the defendant demurs to the declaration, and the demurrer is overruled, the party cannot be permitted to make the same objection by motion in arrest of judgment, unless that right is reserved; but if the right is reserved, he may move in arrest, although the same question might have been determined on the demurrer. (Pittstown v. Plattsburgh, 15 John. R. 441. 18 id. 418.) So, if the court decides against the validity of a plea in bar, on the merits, the defendant will not be permitted to give the same facts in evidence on the trial, under his notice with the general issue.

Had not the party avowed his intention of setting up the matters of the plea again in his answer, the necessary consequence of which would be to produce delay and expense to the complainant, the order for leave to answer would have been general. But when a party applies to the court for a favor, and at the same time signifies his intention to proceéd irregularly if the favor is granted, it becomes the duty of the court to insert such restriction in the order as will prevent the irregularity. If the counsel really has confidence in the validity of the plea, it is to be regretted that the defendant has not taken the proper steps to bring the question before the court of dernier resort. But I cannot permit her to violate the established principles of the court, to enable her to do that indirectly which perhaps she cannot now accomplish in any other way.

The order giving her permission to answer must therefore be entered according to the former decision.


text:
    Fitch and another vs. Hazeltine and another.
    Where an order to produce witnesses had been extended by the agreement of the parties, it was held, that an order to extend the time to produce witnesses, obtained upon an application ex parte to the chancellor, after the time limited in the first order had expired, but before the expiration of the time as enlarged by the agreement, was regular.
    But where the agreement to enlarge the time to produce witnesses contained a stipulation that the defendant should have 15 days to produce testimony on his part, after the examination of a witness named on the part of the com. plainant had closed, it was held, that this fact should have been stated in the affidavit presented to the chancellor upon the ex parte application, so that a similar provision might have been inserted'in the order granted by him; it was also held, that the affidavit should have stated that the time to produce witnesses had been once extended by stipulation, so that the chancellor might have taken this circumstance into consideration in deciding upon the the propriety of granting further time.
    June 9th.
    After the usual order to produce witnesses had been entered in this cause, and notice thereof served, the parties entered into a stipulation to extend the time to examine the witnesses until the 1st of May, 1831. It was also stipulated, that if the complainants examined W. H. Seward as a witness, the

      defendanf should have 15 days, after such examination, to produce testimony on his part. On the 25th of April the solicitor for the complainant presented an affidavit to'the chancellor, stating, among other things, that the time for taking testimony in the cause would expire on the 1st of May. On this affidavit an ex parte order was obtained, extending the time to take testimony for sixty days. -
    /. Edwards, in behalf of the defendant,
    moved to set aside this order for irregularity: He insisted that it was irregular to obtain an ex parte order, after the time limited by the original order, had expired ; although the time had been extended by stipulation. At all events, he said, it was improper to obtain a general order ex parte, thereby annulling the agreement respecting Seward’s examination, contained in the stipulation.

      J. Rhoades, contra,
    contended that under the 86th rule, one order to extend the time might be obtained without nee1 tice although the time had been previously extended by a stipulation between the parties.
   The Chancellor.

The 86th rule makes no exception • of the case where the time to produce proofs has been once extended by the consent of the adverse party. In this respect it differs from the 125th rule, which contains an express provision for such a case, in relation to answers and replications. It was not therefore irregular to make the application, ex parte, within the time given by the stipulation. As the time was enlarged by the agreement of the parties, it had not actually expired at the time the ex parte order was obtained. But as the time had been enlarged by stipulation, that fact should have been stated in the affidavit, to enable the chancellor to judge whether further time ought to be granted under such circumstances. The special agreement as to the examination of Seward ought also to have been stated, so that a similar provision might have been inserted in the order. If the facts had all been stated, as they now appear, I should have extended the time, on the ex parte application ; but I should have directed the same provision to be in* serted in the order which the parties had agreed to in their stipulation. The application to set aside the, order for irregularity is denied, but without costs ; and the defendants' are > to have 15' days, after the examination of Seward, to pro-; duce their prgofs, provided he is examined as a witness on the part of the complainants, as provided for by the stipu-” lation. -


text:
    Stoors and others vs. Kelsey and others.
    Where there is no allegation of fraud or collusion between the complainant , and the sheriff, the return of an execution at law unsatisfied is sufficient ■ - to authorize the filing of a judgment creditor’s bill, although the sheriff was , told the defendants had some interest in property which might be’ sold on the execution. ■ 1
    If the sheriff improperly returns ah execution unsatisfied, „when there is property of the defendant in his bailiwick sufficient" to pay the judgment, either wholly or in part, the proper remedy of the defendant is by an application to the court out of which the execution issued, to set-aside the return ; 'or by a suit against the sheriff.
    June 9th.
    . ..T’mg was a judgment' -creditor’s bill, filed upon the return of an execution unsatisfied. After the coming ip of the answer of the defendants.

      J. Harris, in behalf of the complainants,
    applied for the, appointment of a receiver. 9

      L. Hoyt, for the defendants,
    resisted the application, upon the ground of a statement contained in their .answer that they were the owners of a lot. of land, the value of which exceeded' the amount of a mortgage charged thereon ; and 'that'before the return of the execution, they gave" notice to the sheriff of - the fact, and "requested him to advertise the lot for sale ; but thát he refused to do so, and returned the execution unsatisfied. .
   The Chancellor.

As there is no allegation of any fraud or collusion between the complainants and the sheriff, or that' the former had any notice of the alleged interest of the defendants in the lot at Buffalo, the return of the sheriff was sufficient to authorize the filing of this bill. If the sheriff has made a false return, by which the defendants have been subjected to the costs of these proceedings, they may recover their damages in an action against him; or they might have applied to the supreme court to set aside the return. This court has no jurisdiction to grant such relief, in a suit to which the sheriff is not a party. (Stratford v. Twynam, Jac. R. 418.) Besides, it is not pretended that the property was sufficient to satisfy the whole,, or any considerable part of the judgment. The object of the defendants was probably to create delay, until they could place their other property beyond the reach of these creditors. The order for the appointment of a'receiver must therefore be granted; and the defendants must foe left to their remedy, if they have any, against the sheriff.


text:
    Kline and others vs. L’Amoureux, committee of Stafford.
    An infant is only liable for necessaries, when he has no other means of ob. taming them except by the pledge of. his personal credit. If the infant is under the care of a parent or guardian, who has the means, and is willing to furnish what is actually necessary, he cannot, without the' consent of such parent or guardian, make a binding contract for articles which, uncler other circumstance, would be deemed necessaries.
    Where a person deals with an infant, he is bound, at his peril, to inquire and ascertain the real circumstances of the infant, and whether he is in a sitúa, tion to bind himself by a contract for necessaries.
    June 21st.
    This cause was” heard on exceptions to the report of master Hoyt,- disallowing the claims of the petitioners against the estate of J'ohn Stafford in the hands of his committee. By the evidence before the master, it appeared that the father of John Stafford died in October, 1819, leaving him then about 19 years of age, and entitled to a very considerable estate. In JÑovember of the same year, Spencer Stafford, the uncle of J ohn, was appointed his guardian, by the surrogate of the <£>unty of Albany, and assumed the discharge of that trust. The guardian provided suitable boarding places for his ward who was idle and dissipated, and made every exertion to withdraw himfrom his dissolute associates, and to prevail upon him to undertake. some useful and regular emplyoment. The guardian was at all times able, and willing to furnish his. ward with all necessary clothing, &cl; and he gave notice to the public not to trust him. John Stafford, the ward, was however boarded, and, furnished with liquor, clothing, money,- horses, carriages, &c. by the petitioners and others, for which they now claimed compensation from 'his estate.Within a few days1 after John Stafford- became of age, Judge L’Amoureux was appointed the committee of his estate,' under the act concerning habitual drunkards;, and some of the claims of the petitioners were for articles furnished .to Stafford after that peroid. The master allowed to one of the petitioners a small claim for a. debt contracted after Stafford became of age, and before the appointment of the committee, but disallowed all the rest. To this decision of the matter, the petitioners,' whose claims were disallowed, excepted.

      P. Gansevoort, for the petitioners. .

      J. L’Amoureux, committee, in-person.
   The Chancellor.

An infant is liable for necessaries, suitable to his rank and condition, when he has no other, means of. obtaining them except by the pledge of his own personal credit.- .But if he is under the care of a parent or guardian, who has the-means, and is willing to furnish him what is actually necessary, the _ infant can make no binding contract for any article whatever, without the consent of his legal protector and adviser. In Brainbridge v. Pickering, (2 W. Black R. 1325,) the court held that an infant could not bind herself to a stranger, und.er such circumstances, for what ■ ■might otherwise be allowed as necessaries. A similar decision was made by the court of appeals of South Cároliiia, in the case of Hull v. Connolly, (3 M’Cord’s L. R, 6.) In this . case, it appears that the. guardian made suitable provisions, for the clothing and sustenance of his ward, and endeavored to withdraw him from his vicious courses. Probably he might have succeeded, had it not been for the aid furnished to this profligate young man by the petitioners and others. Some of them must have known that he was selling his clothes, and squandering the the means they furnished him, to obtain liquor, and to defeat the plans which were formed for his reformation. Those who had actual knowledge of the facts deserve punishment rather than compensation. It is probable some of the petitioners were not aware that he was a minor and had a guardian; but that will not make his contracts binding for articles which were not necessary, under the actual circumstances. In Ford v. Fothergill, (1 Peake’s N. P. 230,) Lord Kenyon decided that an infant was not liable for clothing, where it was proved that his father furnished him with all that was actually necessary. He says: “ Whether he was living with his father or not, the person who dealt with him was bound to inquire and know who he was.” Here, it was known to every one who was acquainted with the infant, that he was idle and intemperate. If they chose to furnish him supplies, under such circumstances, without any inquiries as to the actual situation of the property, or as to his ability to contract, they must bear the loss. Hundreds of young men of property have been irretrievably ruined, especially in our large cities, by being furnished with supplies, under the pretence of their being necessaries, contrary to the wishes of their parents and guardians. It is to be hoped the legislature will interfere, and make it a criminal offence for any person, knowingly, to interfere with parental authority, or the rights of guardianship, in furnishing indiscreet or profligate young men with the means to continue in their vicious courses. In a recent casé in the city of New-York, a minor who had' been ruined by such conduct, and to whom money had been loaned at a most enormous rate of interest, was persuaded by the usurer to bind himself by oath to pay the whole amount when he should become of age, without making any objection to the legality of the loan. Such things, I am informed, are quite common in some of our cities.

Although this case is not one of that aggravated character, it is nevertheless impossible to allow these claims without overturning settled principles which are very essential to the peace - and happiness of private families, and to the preservation of public morals. The master, therefore, hás decided correctly. The exception must be overruled, with costs to be paid by the petitioners who have excepted, and the report is ‘confirmed. As the petitioners have brought their claims before the court in the least expensive manner possible, and as the estate in the hands of the committee is ample, I shall not charge' them with costs on the reference. But as they appealed from a correct decision of the master, after all the facts of the case ■ had been fully ascertained, they cannot be excused from'the payment of that part of the expense occasioned by such appeal. . ■


text:
    L’Amoureux, committee of Stafford, vs. Crosby.
    Where the defendant, an inn-keeper, persisted in harboring an infant, a,nd furnishing him with supplies against the will, and contrary to the express directions of his guardian, who was endeavoring, to reform his dissipated habits, the court of chancery would not permit the defendant to retain the fruits of his improper conduct out of the estate of the infant. And the defendant having obtained a judgment bond from the infant during his minority, and another a few days after he became of age, but which was overreached by an inquisition finding him incompetent to contract on account of habitual drunkenness, both judgments were decreed to be set aside and cancelled.
    The statute gives the court of chancery the exclusive care and custody of the persons and estates of idiois, lunatics; and habitual drunkards; and all contracts made by them,, and all gifts of their property or eifects, after the actual finding of an inqusition declaring their incompetence," are -actually " void.
    The inquisition is only prima facie, evidence of the invalidity of an act done by the lunatic or drunkard before the issuing of the commission, but which is overreached by the finding of the jury. -

      It is a-contempt of the court for. a person to interfere with the property of a " lunatic, &c. after", lie is informed of. the institution of .proceedings' to declare his incompetency. ' - .
    After the finding of an inquisitition declaring the" incompetency of the lunatic, &e. the proper remedy of creditors is by an application tó the court, by petition, for the payment"of their debts, if the-committee decline discharging them without t\ie direction of the court; and if their demands are-disputed or doubtful, it may be referred to a master to ascertain whether they are equitably due. " . '
    It is not proper to subject the estate of the lunatic, &c. to the expense of a proceeding by bill against his committee, except by the direction of the court; and it is a contempt of the court to commence a suit at law with- . out its permission.

      The statute having given to the court of chancery the exclusive jurisdiction in such cases, and charged it with the duty of providing for the payment of the debts of the idiot, lunatic or drunkard, out of his estate, the chancellor will see that the legal and equitable rights of the creditors are protected and enforced. But this must be done according to the usual forms of proceedings in this court, or under its direction.
    June 21st.
    The bill in this cause was filed to set aside two several judgments against John Stafford, entered up on bonds and warrants of attorney ; the one obtained while he was an infant, and the other after he had been found incapable of managing his estate by reason of habitual drunkenness. The facts are sufficiently stated in the opinion of the court, "and in the preceding case of Kline and others v. L'Amoureux. (Vide ante, p. 419.)

      J. Id Amoureux, in person.
    The several contracts, made by John Stafford and the defendant previous to the former arriving at the age" of twenty-one, including the. first judgment, were not binding on Stafford : 1st. Because he was an infant, and the articles furnished were not of the class called necessaries ; 2d. If all or any of the articles furnished Stafford were of the class called necessaries, still the contracts were not binding on him, as he had a faithful guardian who fully provided for him. The presumtion is in favor of the guardian until strong circumstances of suspicion are shown against him.
    When Stafford confessed the second judgment his estate was so far in the custody of the law as to prevent its being affected by the acts of an individual; especially when that individual acts with a full knowledge of all'the facts:
    The court of chancery is the general guardian of idiots, lunatics and habitual drunkards, and the general trustee of their property ; and when the court has signified its intention to take the charge of their persons and property by committing them to a guardian and committee, though it does not accomplish it in a given time, yet it will not suffer itself to be outdone by an individual. The act of the defendant in Obtaining the second judgment was a contempt of the court.
    It was found by the inquisition that Stafford had been incompetent to contraqt for two years. Of the finding of this inquisition the defendant had notice. He aided, in the opposition made to it. . An. inquisition found under such circumstances is, at least,. prima facie evidence of .the incapacity of Stafford to contract. If, however, Stafford was not entirely incompetent to contract and ■ dispose of his property, at the time he confessed the second judgment, either on the ground of his property being in the custody of the law, or of the-entire imbecility of his mind yet, the second "judgment, under the circumstances of this case, is void, it having been fraudulently obtained. ■
    Fraud is divisible into four heads : 1st. Actual fraud, by suppressing the truth, or suggesting falsehood-; 2d. That which is appárent from the intrinsic nature and subject of the agreement itself; 3d. That which arises from the circumstances and condition of .the contracting parties ; 4th. Fraud On-creditors. (Newland on "contracts, 352.)
    The present case is one under the third head. The contracts with Stafford being highly immoral and- unconscionable, the weakness of his mind furnishes the strongest evidence of fraud. Several principles have been settled which entitle us- to the relief we ask: It has been held that where an unconscientious advantage hás been taken of the situation of a person, although not fraud in contemplation of law, chancery will relieve. (Lyon et al. v. Tallmadge etal. on appeal, 14 John. R. 501.) So a court of chancery will recognize an ■ imbecile state of the " human mind which is short of idiocy ■ or lunacy. (In the matter of J. Barker, 2 John. Ch. R. 232.) . And weakness of understanding is an item in the.proof of fraud, against which a court of equity will relieve, when it can be collected from the circumstances, (Jackson v. King, 4 Cowen’s R. 207.) . And where an infant has been unwarily entrapped, immediately on coming "of age, into a ratification of his acts while an infant, equity will relieve him from such ratification. (Bingham oh infancy, 69. Brook v. Gally, 2 Atk. 34. 2 Starkie, 723. 2 Mad. Ch. R. 753.) Fraud at law must be proved, but in equity it may be presumed. A lunatic may, or may not be made a party in a suit, to avoid his acts before inquisition found.. (In the matter of Hallock, 7 John. Ch. R. 24.)

      J. V. jSf. Yates, for the defendant,
    contended, 1st. That John Stafford, after he became twenty-one, and before any committee was appointed for him, ratified and confirmed the debt due to the defendant; 2d. That he was not incapable to do so, by reason of mental imbecility, or of drunkenness; 3d. That the debt due the defendant was moderate in amount; (about $400 only ;) that not one eighth part of it Was for liquor ; that John’s estate was large, and the defendant’s claim, so far from being large, or extravagant, was the reverse; 4th. That the complainant, by filing the bill, and persevering therein to the hearing of this cause, has exhibited a greater disregard of the interests of John, and has committed a greater waste of his property, than that which he professes to prevent; 5th. That he ought to pay defendant’s costs out of his own pocket: or, 6th. Out of the funds or estate of John. In support of these positions he cited the following cases: Tiernan v. Wilson, 6 John. Ch. R. 411; 3 Bac. Abr. 611; 2 Str. 690 ; Borthwick v. Carruthers, 1 Durn. & East, 648; Abr. Eq. 282 ; High. on Lun. 106, 111. 115, 118, 119, 181.
    The counsel also insisted that the case in Brook v. Gally, (2 Atk. 34,) had no analogy; that there the infant had seven shillings sterling a week, pocket money, (nearly two dollars ;) here he had scarcely any; that there the infant went to school, and the tavern keeper often concealed and denied him; not so here. And that even in that case the court allowed a suit at law to be brought, to try the question of consideration.
   The Chancellor.

In the case of Kline and others v. L’Amoureux, which has just been decided, the facts as to this young man, and the law in relation to contracts made with an infant under such circumstances, are fully stated. It is therefore unnecessary again to repeat what was said in that case. There are, however, in this case some facts which require particular comment. It appears by the testimony of the guardian that soon after his appointment he called upon the defendant, in a friendly manner, and informed him of the appointment; and stated to him that he provided every thing necessary for the infant, and permitted him neither to buy nor sell. ■' He also requested of the defendant, as a particular favor, that he would neither harbor nor trust his ward. Nothwithstanding . this friendly admonition of the guardian, and his subsequent remonstrances, the defendant persisted in harboring and furnishing the infant with supplies ; and by this course of conduct. he probably contributed as much as any other person to the absolute ruin of this unfortunate young man. Under such circumstances it is not material to . go into the enquiry, which was objected to on the examination of the witness, whether he was not in the habit of seducing minors, and drawing them into haunts of vice and intemperance, for the purpose of afterwards defrauding them -of their property. His conduct in harboring and trading- with the infant, in defiance of the rights of the guardian, would have been sufficient to have induced the English court of chancery, to commit . him to the Fleet prison. And it is sufficient here to make it the duty of this court to deprive him of the fruits of his illegal and improper conduct, unless there is some unbending rule of law which prevents the exercise of the power. It therefore remains to be seen- whether the complainant is entitled to the relief sought by his bill.

' The'first judgment bond was obtained from Stafford during his infancy, and to cover an account for articles which nev- , er were of the least possible benefit to him or to his .estate. It is also overreached by the inquisition, found by one of the most respectable juries that could be selected in the city of Albany, under the advice and direction of a most able and competent board of commissioners. By the inquisition it is found that, at the time of the execution of that bond and warrant, Stafford, in addition to the disability arising from his infancy, was incompetent and unfit for the government of himself or his estate in consequence of habitual drunkenness. Although this finding is not conclusive evidence against the defendant, who has neglected to traverse the inquisition; yet, 1 in connection with the other testimony in the cause, it is sufficient to satisfy me that the judgment could not be sustained, even if Stafford had been of- full age at the time that bond ■and warrant were executed. The same remarks are applicable to the second judgment. But as to that there is another insuperable objection. When the last bond and warrant were executed this court had obtained complete jurisdiction and control over the property of Stafford, not only by the lis pendens which was created by presenting the petition for a commission, but by the actual finding of an inquisition declaring him incompetent to manage his estate. The statute gives this court the exclusive care and custody of the persons and estates of all idiots and lunatics. By the act of March 16th, 1821, which was in force when these proceedings Were instituted, the same jurisdiction was conferred as to the estates of habitual drunkards; and by the revised statutes the same authority is extended to their persons also. The inquisition under the commission of this court is in the nature of an inquest of office at the common law. As to acts done by the lunatic or drunkard before the issuing of the commission and which are overreached by the retrospective finding of the jury, the inquisition is • only presumptive but not conclusive evidence of incapacity. But all gifts of the goods and chattels of the idiot, lunatic or drunkard, and all bonds or other contracts made by him after the actual finding of the inquisition declaring his incompetency, and until he is permitted to assume the control of his property by the permission of the court are utterly void. This doctrine is fully stated in Beverly's case, ( 4 Coke’s R. 126, b. 127, a.) The same opinion is intimated by the supreme court of Massachussetts, in White v. Palmer, (4 Mass. R. 147.) Although that court afterwards decided that a lunatic restored to his reason might make a valid will, even if there had been no formal revocation of the letter of guardianship, they conceded that the finding of the judge of probates was evidence of incompetency at the time his decree was made. Here the defendant admits that he took this last bond and warrant two days after the jury had found Stafford incompetent to contract; and with a full knowledge of all the circumstances. It was therefore an unwarrantable interference with the proceedings and powers of this court to attempt to get a judgment by confession against him, and to' seize upon his property by an execution at law, without the permission of the chancellor- And probably if the court had been applied to in a summary way, the defendant would have been punished for the contempt and compelled to discharge the judgment. It is a contempt of this court even to commence a suit at law against the lunatic, without permission, after notice of the inquisition declaring his incompetency. (See (Sweet and wife v. Austin, Vern. & Scriv. R. 306.) If any person has ale-gal or equitable claim against him or his estate, the proper course is to apply to, this court by petition for the payment thereof; and if the claim is disputed or doubtful, it may be referred to a master to ascertain the facts. ■ It is not proper even to subject the estate to the expense of a proceeding by bill, except by the direction of the court. The statute hav!ng given to this court exclusive jurisdiction in such cases, and charged with the duty of providing for the support of the lunatic and his family, and for the payment of' his debts out of the estate, the chancellor will see that the legal and equitable rights of the creditors are protected, and enforced., But this must be done according to the usual forms of proceeding in this court, or by suits instituted under its direct tioti. None of the creditors will be permitted to take the law into their own hands and mete out justice to themselves according to their own ideas of their equitable rights.

Tinder the circumstances of this case, I am satisfied that the defendant has no legal or equitable claim to be paid out of the estate of this young man for the means he has furnished towards his ruin. There must therefore' be a decree, in favor of the complainant,' declaring the bonds and warrants on which these judgments were entered to have been imroperly and inequitably obtained from Stafford, without any beneficial or sufficient ■ consideration ; and while he was legally incompetent to make any valid contract, affecting his estate. The defendant must cancel the judgments on record. The . injunction heretofore issued, and continued by the decision of the late chancellor, prohibiting all proceedings at law on those judgments against the estate of Stafford, must be made. perpetual; and the defendant must pay to .the complainant the costs of this suit to be taxed.


text:
    In the matter of Hornby’s will.
    The sound construction of the 12th and 16th sections of the act of April, 1830, amending the revised statutes, is that the chancellor may issue a commission to prove a will, either of real or personal estate, in any case where, from the absence of the will or the non-residence of witnesses in this state, it cannot be proved before the surrogate.
    Such commission may be issued by the chancellor, although all the subscribing witnesses to the will are dead; but, in such a case, the proof taken will have no greater effect as evidence, than a will proved before a surrogate without producing any of the subscribing witnesses thereto.
    The chancellor alone can grant a commission to take proof of a will out of the state, and it cannot be issued by the direction of a vice chancellor. All the proceedings must be entered in the office of the register at Albany.
    June 21st.
    In this case a commission was duly issued to take the proof of the validity of the will of William Hornby, late of London, deceased. By the evidence taken under the commission, it appeared that the original will was deposited in the registry of the prerogative court of Canterbury, from whence it could not be removed to this state; and that the copy there, of, annexed to the commission, was an exact copy of the original will on file. It also appeared that all the subscribing witnesses to the will were dead ; that, until their deaths, they all resided in England, where the will was executed; and their hand writing, as well as the hand writing of the testa, tor to the original will on file, were duly proved. The commission and dispositions were returned, and delivered to the register of this court by the commissioner, personally. The only questions which arose in the case, were whether the will was duly proved, to entitle the authenticated copy thereof to be recorded as a will of real estate; and as to the effect of such proof. The court having taken time to examine the subject, delivered the following opinion.
   The Chancellor.

The article of the revised statutes relative to wills of real estate, and the proof of them, (2 R. S. 56,) has made a distinction, as to the effect of the proof? between those cases where one of the subscribing witnesses is alive and is examined personally, and the cases of proof of the hand writing, where all the witnesses to the- will are dead, or out of the jurisdiction of the court. In the first case, the record is evidence of the dué execution of the will, until repelled by contrary proof. But in the latter case it can only be received in evidence in connection with other proof that the lands in controversy and devised by the will have been held under the same for the space of 20 years. (2 R. S. 58, §15, 18.) The amendment adopted by the act of April, 1830, (3 R. S. app. 149, § 16,) authorizes the chancellor to issue a commission and take proof bf the will either of real or personal estate, where the subscribing witnesses reside abroad, or where the original will is retained in a foreign tribunal. This statute does not, in express terms, authorize the proof of a will of real' property executed out of this state, where all the subscribing witnesses thereto resided abroad, but they are dead at the time of issuing the commission. It is evident, however, that the legislature intended- to provide for such a case ; as, by another provision, of the statute, it is made necessary to have every will of real estate recorded in the office of the surrogate, or of'the register of this court, within four years after the death of the testator. (1 R. S. 748, § 3. 3 R. S. app. 148, § 12.) And it must frequently happen that, all the subscribing witnesses-to the will are dead, even before the death of the testator. In such cases, where the will is impounded in a foreign tribunal,, or the witnesses to prove the hand writing are out of state, the. will cannot be proved before the surrogate. I think the sound construction of the several .new provisions, introduced into the revised statutes by the Í2th and 16th sections of the act of' April, 1830,' is, that the chancellor may issue a commission to prove a will of real or personal estate, in any case where, from the absence of the will' or the non-residence of witnesses in this state, it cannot be proved in the usual manner before the surrogate, by producing the subscribing witnesses or by proving their hand writing. In the first case it is evident the hand writing can only be proved by an inspection of the will in the foreign tribunal; and where the will was executed abroad, and all the subscribing witnesses are dead, it will generally happen that the evidence of their hand writing can only be obtained at the place where the will was executed. I must therefore declare that the evidence taken under this commission is sufficient to establish the validity of the original will, in consequence of the proof of the death of all the subscribing witnesses, and who resided out of this state at the execution of the will, and at their death ; and the register must record the authenticated copy and the proofs or examminations annexed to the commission.

As to the effect of the proof, it may not be necessary for the court to express an opinion at this time, as it will not be conclusive upon parties claiming in opposition to the will. But to prevent any missapprehension of my views on this subject, ' and, if possible, to prevent unnecessary litigation in relation to this question, I think it proper to give a construction of the statute as to this part of the case. So far as the proof and recording of a will is to operate as a constructive notice to subsequent purchasers from the heir at law, or to protect the title of the devisee, if the will is proved and recorded within the time piescribed by law, there seems to be no distinction in the statute between the effect of the proof of a will proved by one or more of the subscribing witnesses, and one where proof of hand writing is resorted to, for want of other evidence.

It can hardly be supposed, however, that the framers of the law intended to give any greater force and effect to the proof of hand writing taken under a commission executed abroad, than is given to the same species of evidence when taken in the tribunals of our own state. As to the personal estate, the decree establishing the will is, in either case, conclusive, until opened or reversed by a direct proceeding. The correctness of that decision cannot be inquired into collaterally. But it would be introducing a new principle into our law, to permit either a deed or a will to be proved, in a manner, ex parte, by any other than a subscribing witness, and to give to the registry thereof the same force and validity as if the subscribing witnesses had proved its due execution. Hence, I conclude, notwithstanding the broad terms of the 66th section of the amendment, that the proofs taken under this commission can have no greater force or effect as evidence of the due execution of the will, than they would have had if they had been taken by the surrogate under the 16th section of the title of the revised statutes 'concerning wills and testaments, as originally passed.

, It may also be proper to observe, that the power of issuing a commission to take the proof on a will abroad, is" by the statute conferred on the chancellor alone, and cannot be exercised by a vice chancellor ; and all the proceedings in such cases must be entered in the office of the register at Albany


author: The Chancellor,

text:
    J. Hallett and wife vs. J. D. Hallett and others.
    "Where the intention of the court is to permit a party to produce or deliver over books and papers or any other thing, on his own ex parte affidavit merely, he is directed to produce "and deliver the same on oath generally. But where it is referred to a master to superintend the production or delivery, or the, party is directed to produce and deliver on oath before a master, or under the direction of a master, all patties interested in the production or delivery may examine such party as to the fact, whether the order of the court has been fully and fairly complied with.
    In such cases 'the master should allow a reasonable time to inspect the . books and papers delivered, and to prepare interrogatories for the examination of the party, if necessary.

      An order was made in this cause for the appointment of a receiver of the estate and effects of A. S. Hallett, deceased, in the hands of, his executors ; and directing them to deliver over to the receiver, under oath, before master Depeyster, the said estate and effects, with all books of account, papers, writings', securities and evidences of debt, belonging, or.in any way appertaining to the same. The executors delivered over to the receivers certain books and papers, and made and delivered to the master the usual affidavits that they had delivered over all the estate and effects, books, papers, &c. in their custody, or within their power or control. The complainants then applied to the master for time to inspect the books- and papers delivered, and for leave to examine the executors-on written interrogatories or otherwise, if they should find the-delivery unsatisfactory. The master being of opinion that! the general affidavit was all that was necessary, and that he had no" power to receive interrogatories, or to examine" the-executors further, refused the application. The complainants thereupon obtained a certificate of the facts, and applied to the court for directions to the master to examine the defendants as to the delivery, &c.

      M. Hoffman, for the complainant.

      H. Bleecker, for the executors.
   The Chancellor,

The master has mistaken the practice of the court under an order of this description. Where the intention of the court is to permit the party to produce or deliver over books and papers, or any other thing, on his own ex parte affidavit merely,„he is directed generally “ to produce and deliver the same on oath.” • But where it is referred to a master to superintend the production and delivery ; or the party is directed to produce and deliver on oath, “ before a master,” or, “ under the direction of a master,” it is that all parties interested in the production' or delivery may have an opportunity to examine as to the fact whether the order of. the court is fully and fairly complied with. The proceedings in that case to ascertain the facts are substantially the same as on an order to produce books, papers, "&c. before a master, on a reference to take an account. In this case the complainants were entitled to a reasonable time to inspect the books and papers produced and delivered over to the receiver; and, if they were not satisfied, they had a right to examine the executors on the subject, either orally of on written interrogatories as the master should think proper. In this case it is the more important that the complainants should have the privilege of examining on interrogatories, as the'affidavit of one of the executors is not positive, but merely as to his belief. Perhaps an examination might refresh his recollection, or at least satisfy the master that some other property or effects, books or papers, belonging or relating to the estate were in his possession, or within his legal control. In Gower v. Lady Baltinglass, (Turn. & Russ. R. 195, note,) the defendant was compelled to answer interrogatories, notwithstanding she had brought in the trunk of writings, upon oath, in the usual manner. (See also Hoffman’s Masfer, 11, and cases there cited) The examination in this case however is only to extend to the books, papers and effects which were actually in the.possession, power.or control of the executors at the time of making the order, or since; and hot to a general account of what they may be made liable for hereafter, in consequence of anv previous neglect, misapplication of funds, or other misconduct. This is not the proper time to' hold an inquisition as to these matters, although they will be proper subjects of inquiry after a decree for an account.

The master should have adjourned for a reasonable time? to enable the complainants to examine and see what papers and effects had been delivered to the receiver, and then to make the necessary inquiries of the executors, as to any thing which they supposed was deficient, or had been withhéld. The complainants must therefore have the order, as asked for in their notice, for leave to examine the defendants, either on written interrogatories, or orally, as the matter shall think proper. And the complainants’ costs on this application are to abide the event of this suit; and to be taxed as costs in the cause, if costs shall be awarded to therm


text:
    Gouveneur and wife vs. The Mayor, Aldermen and Commonalty of the City of New-York, and others.
    The 186th section of the act of April, 1813, relating to the city of New-York, does not authorize the collector to levy the assessment upon property found on the premises, unless it belongs to the person who was the owner or occupant of the premises at the time the assessment was made; and if it belongs to such owner or occupant, it is not necessary to distrain it on the premises. '
    The property of a subsequent occupant cannot be sold under the warrant of the corporation, although he is bound by a covenant with" the owner of the premises to pay the assessment.
    Where there is a remedy given both against real and personal estate, for the satisfaction of taxes and assessments, as a general rule, the remedy against the personal estate should be first exhausted, unless there is some specific and controlling equity to make it proper to proceed against the real estate in the first instance. '

      Where the lessee and occupant had Covenanted to pay all taxes and. assess. ments on the premises, and the corporation were informed thereof by the landlord, and requested to direct the assessment to be collected out of the personal estate of the lessee, which they refused to do, without any reason. able grounds for such refusal, they were enjoined from proceeding against the property of the landlord, or from selling the real estate for the as. sessment.
    June 21st.
    This was an application for an injunction. T he bill stated, among other things, that the father of Mrs. Gouveneur, one of the complainants, leased the Bank Coffee House, in the city of New-York, to the defendant Niblo, for the term of five years, from the first of May, 1827; that the lessee covenanted to pay the rent, arid all taxes and assessments whatsoever, ordinary and extraordinary,- imposed upon the premises during the term; that the lessor died in May, 1829, leaving Mrs. Gouveneur, his only child; that the premises descended to her as his heir at law; and that the defendant Doran was in the actual occupation of the premises» as the assignee of the lease. The bill further stated that in May, 1830, an assessment of $650, for the widening of William-street, was imposed on the premises, which, by the terms of the lease, Niblo and his assigns were bound to pay; that the time for payment expired in July last;- that the lessee and his assignee have neglected to pay the assessment, although frequently requested so to do; and that the collector has called on the agent of the complainarits, and threatens to sell their interest in the premises for the payment of the assessment; that the personal property of Niblo and his assignee on the premises is more than sufficient to pay the amount of the assessment, and that the corporation might collect the assessment out of such personal property, if they were disposed so to do; but that they had refused to do so, although the complainants applied to them by petition to collect their assessment before the property should, be removed from the premises, or to discharge their lien on the property of the complainants. That Niblo the lessee, and Doran are men of slender circumstances as to property, and that the complainants are apprehensive they will lose the amount of the assessment, if they, by payment of the same, discharge the lien on the personal property on the premises, or if Niblo and Doran are permitted to remove the sáid property from the said prem*seSi The chancellor having directed notice of the,application to be given to the defendants, the case was argued by

      F. Philip sé, for "the complainants, and

      J, Tallmadge, for the defendants."
   The Chancellor.

There can. be-no doubt of the.complainant’s equitable claim to have the assessment collected out of the personal property of the person who was the lessee and occupant of the premises at the time of the con- . iirmation of the report of the" commissioners. And it is a general principal of equity that where the- creditor has a remedy against two distinct funds, to enforce'payment of his debt, and "there, is a plain and manifest equity in favor qf the owner of one fund to have the debt collected from the other, the credito'r- shall resort to the fund which is properly chargeable with the payment as between, the owners qf both. ■ This principle was asserted and enforced by Chancellor Sandford, in the case of The York and Jersey Steam-boat Ferry Company v. The Association of the Jersey Company, (1 Hopk. R. 468.) It was doubted by Chancellor Kent, in Hays v. Ward, (4 John. Ch. R. 131,) whether the creditor could be compelled to exhaust his remedy against the fund which was equitably chargeable in the first instance. And in, Woodcocks v. Hart, (1 Paige’s R. 185,) it was subsequently decided, that if the remedy against that fund Was either'doubtful or difficult, and the creditor w;as willing to give to the party standing in the "place of a surety the full benefit of the lien on the first fund," the creditor would not be restrained from collecting his debt. Yet neither of those cases conflict with the equitable principle before stated. - • -

The complainants,- in their petition presented to the common council, seem to suppose that the assessment is a specific lien, or that it may be enforced against the goods and chattels, either of the- lessee or of his assigns, provided such goods or chattels are found on the- premises. I h%ye examined the 186th section of the statute, to which I was referred on the argument of this motion, (2. R .L. 1813, p. 420,) but find nothing there which renders it necessary to distrain the property on the premises', or which . r r j r gives any authority to levy on property found thereon unless it actually belongs to the person who was the occupant of the premises at the time the assessment was imposed. If the common counsel therefore have refused to issue their warrant to collect the assessment out of the personal property of the occupant, by which such assessment is unjustly charged upon the land, I do not know of any principle of equity that will authorise the court to restrain the tenant from removing from the premises property on which no person has yet acquired any specific or equitable lien. It is not even stated in the bill that Doran was the occupant of the premises at the time this assessment was made. If such.was not the fact, although he may, as assignee of the lease, be liable on the covenants contained therein, yet his property cannot be seised on the warrant issued by the common counsel. So much of the application therefore as seeks to restrain the defendants Niblo and Doran from disposing of their property, or from removing the same from the premises, must be denied; and the temporary injunction heretofore issued is dissolved.

It is a very general principle introduced into' our laws that in cases of assessment and tax upon property, where'there is a remedy given against both real and personal estate to collect the amount thereof, the remedy against the personalty' shall be first exhausted ; unless there is some specific and controlling equity to make it proper to, proceed against the real estate in the first instance. In this case, after the corporation had distinct and legal notice of the complainants’ equitable rights, it was their duty to endeavor to collect the assessment out of the property of the person who was the occupant under the lease, by assignment or otherwise, at the time the assessment was made. Although they have had distinct notice of this application, they have shown no excuse whatever for refusing to adopt a course which was so manifestly equitable, and which would probably have insured the payment of the assessment as soon, if not sooner than it could have been collected m any other way. They must therefore be enjoined from collecting this assessment, either from the complainants, or by a sale of their - property, until they have fully answered the bill; and until the further order of the court.