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    In the Matter of the President, Directors and Company of the Franklin Bank in the City of New York.

      Nov. 10th.
    The depositors of money in a bank are only general creditors of the corporation, and in case of a failure of the bank, they are not entitled to a priority of payment over bill holders or other creditors.
    This was a motion made in behalf of the depositors of money in the Franklin Bank for an order directing the receiver to pay to them the amount of their deposits, before any distribution was made of the funds of the bank among its general creditors.

      D. B. Ogden, for the depositors:
    The receiver represents the directors of the bank. The directors are the mere agents of the stockholders; and the stockholders are in principle co-partners in all respects, except in not being liable beyond the capital stock of the company. A deposit is a trust confided to the directors of the bank. The directors are trustees, and the depositors cestui que trusts. By this trust, the directors are bound to pay to the depositors the amount of their deposits, whenever they shall draw for the same. This court will protect the rights of the depositors and cause this trust to be executed. In equity, the rule undoubtedly is, that funds are to be equally divided among creditors in proportion to their debts. But these debts are to be paid only out of the property of the debtor, not out of property belonging to others in his hands. Where a factor becomes insolvent with the property of his principal in his hands, the creditors of the factor cannot sort to such property for a satisfaction of their debts. So an agent cannot pledge the property of his principal for his individual debt. (Bay v. Coddington, 5 John. Ch. R. 54; Rodriguez v. Heffernan, 5 John. Ch. R. 417.) Property held in trust does *not in case of the bankruptcy of the trustee, pass to his assignees for the payment of the debts of the trustee. So the creditors of the Franklin Bank can only be paid out of the property of the company, not out of the money deposited with the bank. Suppose a deposit of plate, the bank could not sell it to pay their debts. But it may be said that money could not be identified like plate, unless kept in a separate bag, and that, therefore, at law trover would not lie for it, unless it could be so identified. This rule does not exist in equity. There the depositor of money has the same right to it as if it had been kept in a separate bag, or it had been a specific chattel. A depositor is not a lender to the bank. He does not intend to incorporate his money with the funds of the company. He deposits it merely for safe keeping. He receives no interest for it, and gains no advantage by the deposit. He relies upon the integrity of the directors, and not upon the capital stock and funds of the bank, for the repayment to him of the sum deposited. On the other hand, the bill holders take the bills of the bank in the ordinary course of business. They receive an advantage by it, and derive a profit. They rely for the payment of the bills upon the capital stock of the bank, and upon its ability to pay its debts, not upon the deposits in the bank. The statute (Laws of N. Y. of 1825, p. 448) under which this proceeding against the Franklin Bank was instituted, and which directs this court to sequester the funds of the bank, and to distribute them among the creditors, does not impair the right of depositors to a preference, as depositors are not creditors, but cestui que trusts. The statute provides that the debts of the bank shall be paid out of its assets. Deposits are not assets. Upon an execution against a miller, the wheat of his customers, though mixed with his own, could not be sold on the execution, (Seymour v. Brown, 19 John. 44,) because it is a deposit in trust. For the same reason, the deposits in a bank cannot be applied to the payment of the debts of the bank.

      S. A. Foot, contra:
    The statute under which these proceedings are had disposes of this question. It provides two modes of proceeding against insolvent corporated *companies. The fifth section requires the court to sequester the funds, and to distribute them equally among the creditors of the bank. The seventeenth section authorizes the court, upon the application of a creditor of the bank, to issue an injunction against the officers and stockholders of the company, and to appoint a receiver, and to cause a distribution of the funds to be made among all the fair and honest creditors of the bank. This section omits the word equally. This, however, can make no difference, as both these sections are to be construed pari materia. It is within the policy of the act to secure an equal distribution of the funds among the creditors. The sixth section prohibits all assignments by the bank in contemplation of insolvency. An assignment by the bank in favor of the depositors would have been void. The debtor of a bank cannot, after its insolvency, purchase in its bills, and make them the subject matter of off-set. It is a rule in equity that 'creditors are to be paid equally, without giving any preference to creditors by specialty. The like rule prevails where all the real estate of one deceased is sold for the payment of debts by the order of a surrogate. The same rule exists in England, under the bankrupt law. There, the depositors with private bankers, who become bankrupt, are not entitled to any preference. The depositors place-their money in the bank, under an implied agreement that the bank may use their deposits in its business. The bank derives a profit from these deposits. The depositors gain an advantage by the safe keeping of their money from fire and robbery. They also, in consideration of their deposits, expect and receive facilities for loans from the bank. But the bill holders derive no profit from taking the bills. They receive them because the laws make them a part of the currency ; and they receive them upon the ground that the depositors by their deposits gave a credit to the bank. To give a preference to the depositor over the bill holder would be against the sense of the community, and would impair the value of bank paper. The argument that where there is a specific deposit, the depositor has a preference, shows that where the deposit is not specific, no preference *can be given. A depositor, to be entitled to a preference, should seal up his money in a package. Upon such deposits, banks do not issue notes; but they always do upon general deposits. Wherever the money of a principal has gone into and become mixed with the funds of the agent, it cannot be withdrawn. In such case, the principal can only be paid pari passu with the other creditors. So wherever the property of a cestui que trust cannot be traced specifically in the hands of the trustee, it cannot be protected from the creditors of the trustee. So in this case, as the money of the depositors has been mixed with the funds of the bank, and cannot be specifically traced, it must form a part of the common fund, to be distributed equally among all the creditors of the bank in proportion to their debts.
   The Chancellor :—By the report of the receiver, it appears that at the time he took the concerns of the bank into his hands, the amount of moneys actually remaining in deposit, including the bills of other solvent banks, was only $7,957 88; while the amount of balances on the books of the company, standing to the credit of individuals and other banks, usually denominated deposits, was $250,671; of which sum, $84,000 was due to other banks. This amount of deposits has been reduced by off-sets, &c., about $85,000, leaving the estimated amount of debts due from bank, $340,000; of which, $125,000 belongs to bill holders, and the residue to depositors. It is supposed the assets of the bank will not be sufficient to pay more than fifty per cent, on the gross amount of such debts. The depositors claim a priority of payment; and if that claim is allowed, they will obtain about eighty per cent, of their debts, and the bill holders will receive nothing. The receiver, as the representative of all parties in interest, has very properly submitted the claims of the bill holders, who are numerous and widely dispersed, to an equal share of what may be saved from the wreck of the institution. The question has been fully and ably argued on both sides, and I have given to the subject the consideration which was demanded by the importance of the principles involved therein.

*Many cases of extreme hardship and of great individual distress and suffering must exist among every class of creditors, and even among the stockholders. The misfortune of every failure of this kind is, that the loss generally falls upon those who are least able to bear it; upon the laboring class of community; upon the aged and infirm, the friendless and unprotected, whose little all is holden in bills, left in deposit, or vested in the stock of such institutions. But cases of individual hardship must not be permitted to influence the opinion of the court when deciding great general principles.

The first question presented for consideration is, whether the depositors have a legal right or equitable claim to priority of payment; and certainly, at the first blush, it does appear reasonable that those who have deposited their money in a bank for safe keeping should be preferred to those who have taken the bills of the institution in the ordinary course of business. It therefore becomes necessary to examine the principle on which this supposed right of preference is founded. It is undoubtedly supposed to be based upon the great and leading principle of equity, that the property of one person, in the hands of a bankrupt,; shall not be taken to pay the debts of another. It is on this ground that property of the principal in the hands of agents or factors cannot be taken to satisfy the debts of the latter: and the former has a right to claim the proceeds of his property so long as it can be traced and identified. (5 John. Ch. R. 417; 5 Ves. jun. 211.) It is therefore necessary for the decision of this question to ascertain the nature of these deposits, and see whether they come within this principle.

So far as I have been informed on the subject of banking operations, the greatest portion of the debts of a bank, usually denominated deposits, are not moneys actually deposited there for safe keeping. If such was the case, the depositor could always guard against the effect of an insolvency of the institution by making a special deposit; that is, by depositing his money in a box or bag, or by affixing some mark upon it, by which it could be distinguished from the general funds of the institution. If he did so, the bank would have no right to make use of it; and officers or agents who should convert *it to the general purpose of the institution, without the consent of the depositor, would make themselves personally liable for the same. The depositor might also follow the money into the hands of third persons, who had received it with a knowledge of his rights, or who had not paid an equivalent therefor in the ordinary course of business. (Coddington v. Bay, 20 John. R. 637.) Every regular dealer with a bank; has an open running account upon the books of the institution. In this account he is credited with all sums paid by him into the bank, whether the. same are in specie, in checks, or in bills, on the same or other banks. In that account he is also credited with the proceeds of bills or notes discounted or collected for him; and in the same account he is charged with all checks drawn by him on the institution, in favor of himself or others, and with all other claims which are properly chargeable against him by the bank. If there is a balance due to the bank on this account, it is called an overdrawing, and the aggregate of balances due from the bank on these several accounts, is entered in the statement book as the amount of deposits. Hence, it sometimes happens that a person becomes a depositor in a bank without adding one cent to the funds. Thus, if the officers of the bank permit one of their customers to overdraw his account, and the check is placed to the credit of another, the latter becomes a depositor, although the drawer of the check is insolvent and unable to pay his overdrawing. And on the principle of preference contended for here, if another person had at the same time deposited an equal amount of specie and taken bills of the bank in lieu thereof, such depositor of a worthless check would be entitled to the whole of that specie, to the exclusion of the bill holder who had actually deposited the same.

Whenever money is specially deposited in a bank for safe keeping, it is at the risk of the depositor. If the same is stolen, lost or destroyed without any fault on the part of the officers of the bank, he must sustain the loss. Not so with the general depositor. The money, checks or bills which he deposits become the property of the bank, and he becomes a creditor. If they are stolen, lost or destroyed, or become of no value, the bank sustains the loss, and he is still a creditor. *He has no claim upon the money or bills deposited. The officers may use them as they please for the general purposes of the institution, and he is to all intents a general creditor of the bank. There is an implied assent on the part of the depositor, and the agents of the institution are legally authorized to issue bills and discount notes on the credit of such deposits. The depositor, therefore, has no valid claim to be paid in preference to the bill holders, who are also general creditors.

One of the leading doctrines of this court is, that equality is equity ; and in all cases of bankruptcy, the creditor who claims a preference must show a legal right to, or a specific lien upon the fund claimed. The injustice of giving the depositors a preference over the bill holders is strongly exemplified in the case before me. But a very small portion of the fund to be distributed could possibly have been the proceeds of deposits in the bank. The money found therein did not exceed one twenty-fifth part of the amount due to depositors. And a very considerable part of the fund to be distributed will arise from the sale of real estate purchased many years since, probably with a part of those very bills which were in circulation when the bank stopped payment. Having arrived at the conclusion that the depositors have no legal or equitable claim to priority of payment, it becomes unnecessary to examine the question whether the act of April, 1825, requires an equal distribution of the property and effects of the institution among all the creditors. It is sufficient on this subject to observe, that the section under which the proceedings in this case have been instituted gives no preference to any class of creditors; and the only section of the act which prescribes the manner of distributing the effects of an insolvent corporation directs an equal distribution.

I shall therefore decree an equal distribution of the assets among all the creditors of the Franklin Bank, and shall direct the receiver to make the first dividend as soon as he shall be able to divide twenty-five per cent, on the gross amount of the debts.


source: Caselaw Access Project

license: Public Domain

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    *Land v. Wickham.
    Nov. 14th.
    A rehearing of a cause is not a matter of course, except in the cases provided for by the rules of the court.
    In other cases, a rehearing rests in the discretion of the Chancellor.
    Where a decree of one Chancellor is reversed by Ms successor in office, a rehearing will be granted by a third Chancellor, on cause shown.
    If a motion for a rehearing is made for delay, it will be refused.
    *This was a petition by the complainant for a rehearing, which stated that the late Chancellor, having been counsel for one of the parties previous to his appointment, the cause was heard before Judge Betts, of the second circuit, sitting for the Chancellor; that a decree was made in favor of the complainant to the whole extent of his claim; that the cause was afterwards reheard before Judge Emott, the successor of Judge Betts, when the decree was reversed as to the principal part of the complainant’s claim. The petitioner further stated that he was poor and unable to bear the expense of an appeal to the Court of Errors, and offered to waive his right to appeal if the last decree should be affirmed on a rehearing before the present Chancellor.

      G. Griffin, for the complainant:
    A cause may be twice, or oftener, reheard before different persons. Howell v. Howell, 1 Dickens, 426. Newcomb v. Bonham, 1 Vernon, 7, 214. Bonham v. Newcomb, 1 Vernon, 232. Bovey v. Smith, 1 Vernon, 60, 84, 144. Porter v. Hubbert, 2 Ch. Rep. 85; 3 Ch. Rep. 78. Parker v. Doe, 2 Chan. Cas. 200. Noel v. Robinson, 1 Vernon, 90, 94. Pickering v. Lord Stamford, 2 Ves. jun. 272, 581. 3 Ves. 332. 3 Ves. 492. Blackburn v. Jepson, 2 Ves. & Beame’s R. 358. Waldo v. Caley, 16 Ves. 214. East India Co. v. Boddam, 13 Ves. 421.) The rule that a cause shall not be twice reheard is not inflexible. It only applies to a case where the same person decides twice alike. The poverty of the complainant is a ground for a rehearing, he having consented not to appeal to the Court of Errors. (2 Ball & Beat. 75.)
    *O. Hoffman and J. Duer, contra:
    There cannot be a second rehearing before the same Chancellor. (Fox v. Mackreth, 2 Cox’s Ch. Cas. 157.) Wherever a rehearing is allowed it must be before the same person. (East India Company v. Boddam, 13 Ves. 421.) If the hearing before Judge Betts and Judge Emott, sitting as Chancellor, has not the same effect as if the Chancellor heard both arguments, then the case of the East India Company v. Boddam
      applies. Special circumstances must always exists to warrant a second re-hearing.
   The Chancellor :—By the ancient practice of the English Court of Chancery, as appears from the cases cited in (Fox v. Mackreth, 2 Cox’s Cas. 158,) causes were sometimes reheard more than once, on the application of the same party. But it is now settled in that court, that a second rehearing cannot be had at the instance of the same party, after the first decree has been affirmed, except in a case of palpable mistake, or under very special circumstances. (East India Company v. Boddam, 13 Ves. 421.) But I have not been able to find any case in the English reports in which a rehearing has been refused on the ground that the cause had already been reheard, if the application came from the opposite party. In England, one rehearing appears to be a matter of course, on the usual certificate of counsel. (18 Ves. 325.) But by the practice of this court it is not a matter of course, except in the special cases provided for in the 70th rule. In all other cases, the granting or refusing a rehearing rests in the sound discretion of the court. The Chancellor may refuse to rehear a cause, where there is reason to suspect it is intended for delay; or may impose such terms upon the applicant as may be necessary to preserve the rights of the other party from injury during a protracted litigation. If a cause has been twice heard on the same point, and the Chancellor on the last hearing has reversed his former decree, it might be deemed unreasonable to ask the same Chancellor to review his last opinion. But if the decree of one Chancellor has been reversed by his successor in office, the first rehearing cannot reasonably be urged by *the party in whose favor it was granted, as an objection to a review by a third Chancellor, of these conflicting decisions of his predecessors. This is substantially such a case. Each of the circuit judges, when hearing this cause, represented the Chancellor in this court. I, therefore, think it a proper case to be reheard, and without any restriction upon the right of the complainant to carry the cause to the Court of Errors, if decision of this court should be against him on such rehearing.

It is at least doubtful whether this court now possesses the power to direct the cause to be reheard before a circuit judge. If such power existed, it would not be a judicious exercise of it in a case situated as this is, to send the cause back to either of the circuit judges whose conflicting opinions were to be reviewed.

There must be a rehearing before the Chancellor on the usual terms.


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    In the matter of the Niagara Insurance Company of New York.
    Nov. 20th.
    Under the act to provide for the dissolution of incorporated insurance companies in the city of New York, passed April 5, 1817, the Court of Chancery should exercise the same discretionary power in decreeing a dissolution, as the legislature would, in case the latter were applied to by the directors of the company for a repeal of the charter.

    The court is not bound to decree a dissolution of the corporation, simply because a majority of the directors and stockholders request it to be done.
    But where the owners of a large proportion of the stock find it for their interest to withdraw their capital, it will be deemed presumptive evidence, that the interest of the stockholders generally will be promoted by a dissolution of the corporation.
    G. Griffin, on behalf of a majority of the directors and stockholders of the Niagara Insurance Company, moved for a decree to dissolve the corporation, under the Act to provide for the dissolution of incorporated insurance companies in the city of New York, passed April 5th, 1817. He contended that public policy was not one' of the grounds put forth in the statute as a cause either for or againsta dissolution. The *true and the only question was, whether the interest of the stockholders required a dissolutian of the corporation or not. There could be no better criterion as to this point, than the opinion of the owners of the stock themselves. The petitioners in this case were all practical men. They represented nine-tenths of the stock. The Chancellor, under this statute, acts as a commissioner. His powers are ministerial only. The 4th section of the act points out the circumstances to be considered by the Chancellor. It declares that he is to have regard to the interest of the stockholders in making his decision.

      B. Robinson & J. Duer, contra:
    The petitioners ought to show good reasons for a dissolution of the corporation, independent of the mere will of the majority. To dissolve this corporation would be a dangerous precedent. It would open a door to the commission of frauds upon stockholders. Speculators might obtain the control of the company, contrive to depreciate the stock in the market, then buy it in and apply for a dissolution, and pocket the spoils. The will of the majority ought not to control, if it would lead to positive injustice. The power of this court is limited. It cannot act unless certain facts specified in the statute are made to appear. The legislature did not intend that the will of the majority should be the only thing necessary to a dissolution; if they did, they would not have required any application to the court. The court will not dissolve the corporation, unless it is of opinion that a dissolution is either necessary or would be beneficial to the stockholders. The public are concerned in this question. If the doctrine of the opposing counsel be correct, all the insurance companies might be successively swept away by speculators. The stock does not always command a price in proportion to its actual value.

       See 2 R. S. (4th ed.) 710, sec. 75.

   The Chancellor :—In this case, it appears that the original amount of capital stock was half a million of dollars, divided into 10,000 shares, of which something more than eleven hundred belonged to the company, and the rest to individual stockholders. A majority of the directors, *and the Owners of more than three-fourths of the stock, apply for a dissolution of the incorporation, on the ground that it is for the interest of the stockholders. The owners of about one-ninth of the stock remonstrate against the dissolution of the company, and some of them swear to their belief that the business of the company may be made profitable. The residue of the stockholders have neither applied for the dissolution, or made any objection thereto.

In deciding upon the propriety of a dissolution, in the cases provided for in the act under which these proceedings have taken place, this court should exercise its discretionary power, and decree a dissolution, under the same circumstances which would induce the legislature to repeal the act of incorporation, on the application of the directors. The court is not bound to decree a dissolution merely because a majority of the directors and stockholders request it to be done. But when the owners of a very large proportion of the stock find it for their interest to vest their capital in something more productive, it is strong evidence that the interest of the stockholders generally will be promoted, by allowing them to withdraw their capital and discontinue the business of insurance. In such a case, the particular interest of the few must give way to the general interest of the many. The fact that insurance stock, where the capital is perfectly sound, is below par in the market, is of itself strong evidence that the capital of such companies may be employed more profitably, or at least more safely, in some other business. In this case, the wishes of this very small minority of stockholders must give way to the interest of such a large majority, and the corporation must be dissolved.

There must be a reference to a master to report proper persons as trustees, and the amount of security to be given by them for the faithful execution of their trust.


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    *Kirby v. Kirby.
    Nov. 20th.
    In a suit brought by either Husband or wife for a divorce, on the ground of adultery, the wife prosecutes and defends without a guardian or next friend, as a feme sole; and her affidavit is admissible against the husband, as to any matter or proceeding in the cause.
    An injunction, a receiver, and a -writ of ne exeat,

       may all be resorted to in the same suit, to aid the court in doing justice between the parties.
    A husband, by committing adultery, subjects himself and his property to the jurisdiction of the Court of Chancery, so far as to enable the court to order Ms property to be applied to the support of his family, both during the litigation and afterwards.

    And the power of the court extends to compelling the husband to apply a portion of his daily earnings to the same object, during the pendency of the suit.
    This was a motion on the part of the defendant to dissolve the injunction and ne exeat issued in this cause; and the complainant applied for the appointment of a receiver, and for a monthly allowance out of the estate of her husband, for the support of herself and children during the litigation. The facts upon which the motions were founded appeared in the opinion of the Chancellor.

      D. Selden, for the defendant,
    cited Sedgwick v. Watkins, (3 Brown’s Ch. Cas. 12; 1 Ves. jun. 49;) Mix v. Mix, (1 John. Ch. R. 108; (Miller v. Miller, (6 John. Ch. R. 91.)

      E. Paine, contra,
    cited 1 R. L. 200, sec. 5; Shaftoe v. Shaftoe, (7 Ves. R. 170;) 2 Madd. 184; Barrere v. Barrere, (4 John. Ch. R. 187;) Denton v. Denton, (1 John. Ch. R. 364.)

       See New York Code, sec. 114; Shore v. Shore, 2 Sanf. S. C. R. 715.

       Bushnell v. Bushnell, 7 How. Prac. R. 393.

       2 R. S. (4th ed.) 329, sec. 57.

   The Chancellor :—The complainant has filed a hill for a divorce, on the ground of adultery. There are three children of the marriage, the eldest of whom is only six years of age. The defendant’s property consists of an undivided interest in certain coasting vessels which sail between New York and Baltimore, estimated at from $500 to $1,000. The income of this property, including the personal services of the defendant as captain of one of the vessels, amounts to *$35 per month. On the affidavit of the complainant, and upon the particular circumstances charged in the bill, the master has allowed an injunction to restrain the defendant from parting with his property, and has also allowed a ne exeat, in the sum of $3,000. The defendant applies to dissolve the injunction and ne exeat, or to modify the same, and the complainant applies for a receiver, and for a monthly allowance for the support of herself and children pending the litigation.

There is no weight in the objection that the injunction and receiver cannot be allowed on the affidavit of the wife. In these divorce causes, the wife prosecutes and defends without guardian, as a feme sole. It has been the uniform practice of the court to receive the affidavit of either party against the other, as to any matter or proceeding in such cases.

The injrmction, receiver and ne exeat, may all properly be made use of to aid the court in doing justice between the parties. The husband, who is guilty of adultery, voluntarily subjects himself and his property to the jurisdiction of this court, so far as to enable the Chancellor to order his property to be applied to the support of his family during the litigation, and afterwards. The court may also compel him to devote a part of his daily earnings to the same object pending the suit. The injunction and ne exeat were properly issued; but, from the facts now appearing, the latter writ required bail in too large an amount. It must be reduced to the sum of $1,000. The injunction must be continued, and a receiver appointed, with directions to allow to the complainant $25 per month out of the property, for the support of herself and children pending this litigatian, or until the further" order of the court. But to enable the defendant to continue his employment, as master of the vessel between New York and Baltimore, the receiver is not to be appointed, and the injunction and ne exeat are to be dissolved, provided the defendant does, within one week, execute and deliver to the assistant register of this court a bond, with two sufficient sureties, to be approved of by a master in the sum of $1,000, *conditioned to pay the monthly allowance above mentioned, and to obey, perform and abide by such other orders and decrees as may from time to time be made by the court in this suit.


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    Elliott, Executor of Elliott v. Pell and others.
    A decree can only be questioned by a bill of review.
    A decree between co-defendants may be made, grounded upon the pleadings and proofs between the complainants and defendants.
    But such decree to be binding, must be founded upon and connected with the subject matter in litigation between the complainant and one or more of the defendants.
    Where one of two defendants denies in his answer all knowledge of the facts alleged in the complainant’s bill, the complainant, in order to give such defendant an opportunity to litigate his rights, must file a replication to his answer.
    A decree, made upon bill and answer, cannot affect the rights of any of the parties, as to other matters which were not the subject of litigation in that suit.
    Where an instrument in writing was duly executed, conveying certain lands to the grantee, his executors, administrators and assigns, for and during the term of one year, yielding and paying therefor yearly lawful interest of seven per cent, during said term of one year, and in and upon the 14th of November, 1810, with a condition to be void on the payment by the grant- or of 6001 to the grantee, on the 14th of November, 1810, containing also a covenant on the part of the grantor, to pay the 6001 and interest at the time above mentioned, the same was held to be a good and valid mortgage and security in equity, for the sum covenanted in the instrument to be paid by the grantor.
    And such instrument would be valid and binding against all persons chargeable with notice of the same.

      Dec. 2d.
    On the 14th of November, 1809, Caleb Pell and Martha his wife were the owners of a farm in Westchester county, containing about 201 acres; and on that day, by an instrument in writing, signed, sealed and acknowledged in due form of law to pass the real estate of a feme covert, granted, bargained and sold to E. Pugsley the farm, to have and to hold the same to the said E. Pugsley, her executors, administrators and assigns, for and during the term of one year, yielding and paying therefor yearly lawful interest of seven *per cent, during the said term of one year, and in and upon the 14th of November, 1810, next ensuing, with a condition to be void on the payment by C. Pell and wife of £600 to E. Pugsley, on the 14th of November, 1810, without any deduction or abatement for taxes, assessments, or any other impositions whatsoever, with a covenant therein, on the part of 0. Pell and wife, to pay the £600, and interest thereon, at the time above mentioned. On the 14th of November, 1810, C. Pell and wife executed two bonds for the £600 and interest, one of which, conditioned to pay £428 9s. 2d. was given to her daughter, Mary Towbridge. E. Pugsley died in December, 1811, having made Maria, the wife of Aaron Pell, her executrix.
    Previous to March, 1821, C. Pell and wife mortgaged and sold parts of the farm to bona fide mortgagees and purchasers, who had no knowledge of the claim under the instrument given to E. Pugsley. On the 29th of March, 1821, the executrix of E. Pugsley caused the instrument above mentioned to be recorded as a mortgage, and the next day thereafter C. Pell and wife conveyed the residue of the farm unsold to the defendants, James E. Pell and Elijah C. Pell. On the 2d of May, 1821, J. E. and E. C. Pell mortgaged twenty-six acres of the farm to Harvey Elliott, the complainant’s testator, to secure the payment of $800 and interest, and afterwards conveyed the same land, with the residue of the farm which remained unsold, to the defendant, Betsey Hinman. The defendants, M. Mitchell and Arm Aislabie, are subsequent incumbrancers upon the twenty-six acres mortgaged to Elliott, and upon the residue of the farm which had not been previously conveyed.
    In July, 1822, Harvey Elliott filed a bill in this court to foreclose his mortgage on the twenty-six acres, and made the same persons who are now defendants parties to that suit; in which bill he alleged that E. C. and J. E. Pell were seized of the twenty-six acres of land, and mortgaged the same to him; setting out the bond and mortgage and the subsequent conveyance of the twenty-six acres to Betsey Hinman, subject to his mortgage,- and the incumbrances of Mitchell and *Aislabie upon the mortgaged premises, and alleging that since the date of his mortgage the defendants, Aaron Pell and wife, gave out and pretend that they hold an instrument in writing, under seal, executed by Caleb Pell and wife to Elizabeth Pugsley, dated in 1809, which amounts to a mortgage on the premises so mortgaged to complainant; but he denies that they hold any deed or instrument for the premises mortgaged to him, except a lease for one year, by way of mortgage, which has long since expired; and if they hold any other mortgage, the same has never been recorded, and has been satisfied and paid off; and the same not being on record, his mortgage must have a preference. And he called upon the defendants to answer whether A. Pell and wife, in their own right or as trustees, held any other instrument in writing which was an incumbrance upon the twenty-six acres other than the lease for one year by way of mortgage, and whether the said lease was not then expired and void; and if they had any other instrument in writing, by way of mortgage, whether the same had not been duly satisfied and paid off; and that they set forth the same particularly, with dates, parties, registry, acknowledgments and consideration, and how much remained due thereon. To that bill A. Pell and wife put in an answer, setting forth the instrument and bonds executed by C. Pell and wife to E. Pugsley, and alleging, in substance, that the instrument, although in its terms a mortgage for only one year, was intended by the parties thereto to be a mortgage in fee simple ; and that at the time the two bonds were executed for the principal and interest due upon the said instrument, it was further agreed by C. Pell and wife that the said instrument should remain as a security for the bond which was given to E. Pugsley. The other defendants denied all knowledge of any existing mortgage, judgment, claim or lien upon the premises mortgaged to the complainant, in favor of the representatives of E. Pugsley. To the answer of Pell and wife, a replication was filed, but no proof was taken by either of the parties, the complainant’s counsel supposing the answer would not be evidence, and that the burden of proof lay on the defendants.
    *No replications being filed to the answers of the other defendants, no rules were given for them to produce proofs. That cause was brought to a hearing in May term, 1823, and in July thereafter a decree was entered, whereby it was declared that the instrument in writing was a good and valid mortgage and security in equity, for the amount of the bond to E. Pugsley, according to the manifest intent of the parties, and the reasonable interpretation of the said instrument, as against Caleb Pell and Martha his wife, and their heirs and assigns, and as against the other parties to that suit, all of whom were chargeable with notice of the mortgage, by means of the registry thereof, when their respective hens on the mortgaged premises accrued. It was therefore ordered and decreed, that it be referred to a master to compute the amount due thereon to A. Pell and wife, and the amount due to the complainant on his mortgage, and that on the coming in of the report, all the premises mortgaged to the complainant, as described in his bill, be sold, and that out of the proceeds of the sale, the amount due to A. Pell and wife, with their costs of suit, be first paid, and that out of the residue the amount due to the complainant, together with his costs, be next paid, and that the residue remain in court, with liberty to the defendants Mitchell, Aislabie and Hinman, to apply and establish their claims thereto, as they should be advised. The decree was afterwards affirmed on a rehearing before Chancellor Sanford. After the rehearing, Harvey Elliott died, and in May, 1824, the decree was revived against the complainant in this suit, who is his executor.
    In July, 1824, the complainant filed his bill in this cause, setting forth the above facts, and the proceedings and decree in the former suit, and praying that the part of the farm of 201 acres, which had been incumbered since the registry of the mortgage to Harvey Elliott, should be first sold, and applied to satisfy the amount due to A. Pell and wife, with their costs, and that the deficiency only, be paid out of the proceeds of the sale of the 26 acres.
    The complainant subsequently amended his bill, suggesting the invalidity of the Pugsley mortgage, and praying leave to take proofs to establish such invalidity, and if the same '^should be decreed invalid, that then the proceeds of the sale of the 26 acres be first applied to the payment of the Elliott mortgage and costs. To this part of the bill, the defendant A. Pell and wife put in a demurrer, which, on argument before the late Chancellor, in November, 1827, was allowed without prejudice to the relief sought by the bill, in the matters not demurred to, and with leave to the complainant to file a bill of review upon the usual deposit in such cases.
    No bill of review being filed, the defendants A. Pell and wife and Mitchell and Hinman, put in their answers to the bill in this suit as originally drawn; to which answers the complainant filed replications, and proofs were taken on the part of the defendants Mitchell and Hinman, which were read at the hearing, de bene esse, subject to the objection of the other parties to the suit.

      J. Wallis, for complainant:
    All the defendants in the former suit are bound by the decree in that suit. A decree is equally binding between co-defendants as between the complainant and the defendants. (Chamley v. Lord Dursany and others, 2 Sch. & Lef. 710.) A decree may be made in this suit founded upon the former decree. The complainant has a right to compel A. Pell and wife to resort first to that part of the property included in their mortgage, and which is not covered by the mortgage of the complainant. (Evertson v. Booth, 19 John. R. 492.)

      W. Silliman, for the defendants Mitchell and Hinman:
    The complainant having by his bill in the former suit, and by Ms replication to the answers of, the defendants A. Pell and wife, in that suit, and by his replication to the answers of the defendants in this suit, insisted that the mortgage of A. Pell and wife was invalid, he is precluded from now asserting its validity. 1 Phil. Ev. 245; 2 Jac. L. Dic. 441; 1 Phil. Ev. 242.) No replication having been filed to the answers of Mitchell and Hinman in the former suit, no proofs could be taken by them, and they are therefore not concluded by the decree in that suit. The mortgage of A. Pell and wife is only a mortgage for one year. It is not an equitable mortgage *in fee. The registry of this mortgage is only constructive notice of what appears on its face. The registry of equitable mortgages not being sanctioned by law has no effect as a notice. (Pow. on Mort. 739, 748; 1 John. Ch. R. 273; 1 Brown’s Ch. Cas. 93.)

      W. T. McCoun, for A. Pell and wife:
    The decree in the former suit as to the validity of the mortgage of A. Pell and wife is binding as well upon the defendants as the complainants. (Chamley v. Lord Dunsany and others, 2 Sch. & Lef. 710.)
   The Chancellor :—By the decision of the late Chancellor upon the demurrer in this cause, it is settled that the decree in the former suit, so far as relates to the lien of the Pugsley mortgage upon the twenty-six acres, which was the subject of litigation there, is binding and conclusive, and can only be impeached by a bill of review. There is certainly no error on the face of that decree which could authorize the complainants to reverse the same. The answer of A. Pell and wife was responsive to the bill, and so far was evidence against the complainant. If the co-defendants in that suit were not bound by that answer, because they had no opportunity to produce evidence to contradict it, they only could sustain a proceeding to reverse the decree for error in law, so fax as it affected their rights. But that question cannot be raised except by a direct proceeding to review the original decree.

It is the settled law of this court, that a decree between co-defendants, grounded upon the pleadings and proofs between the complainant and the defendants, may be made; and it is the constant practice of the court to do so to prevent multiplicity of suits. Chamley v. Lord Dunsany and others, 2 Sch. & Lef. 710, 718. Conry v. Caulfield, 2 Ball & Beat. 255.) But such decree between co-defendants, to be binding upon them, must be founded upon and connected with the subject matter in litigation between the complainant and one or more of the defendants.

The bill in the original cause sought the foreclosure of a mortgage upon the twenty-six acres only; and the defendants Mitchell, Hinman, Aislabie and A. Pell and wife, were *made parties, on the ground that they claimed to be incumbrancers on that particular piece of land. They were called upon to answer as to any incumbrances they might have upon the twenty-six acres, and no allusion whatever was made to any incumbrances or rights of the defendants,- or any of them, to any other land. Neither did the answer of A. Pell and wife set up the Pugsley mortgage as a valid and subsisting lien upon any other land than the twenty-six acres. After setting out the mortgage, and the agreement of C. Pell and wife respecting the same, they charged and insisted, and submitted to the court, that the said mortgage was a valid and subsisting lien or incumbrance upon the premises mortgaged to the complainant, as in his bill was mentioned and set forth; and that they were entitled to a preference and priority of payment out of the said mortgaged premises. The decree made upon that bill and answer must be taken with reference to the matters then in litigation before the court, and cannot be construed to affect the rights of any of the parties as to the other lands which were not the subject matter of litigation in that suit. If A. Pell and wife had actually released all the lands covered by the Pugsley mortgage, except the twenty-six acres, from the lien thereof, the other defendants could not have given such release in evidence in that suit, because no question as to any other lands was in litigation. If the complainant in the first suit had set out all the facts, as his executor now has done, and claimed to throw the Pugsley mortgage, if it shordd be declared valid, upon the lands of the other defendants, he would then have given them an opportunity to litigate their rights. But even in such a case it is doubtful whether he could have effected that object without filing a replication to their answer, and thus giving them an opportunity to contest the validity of the Pugsley claim.

The prayer of the complainant’s bill in this suit, seeks directly to alter, in two very material respects, the decree in the former suit. As no such relief can be granted, the bill must be dismissed. But even if there had been a prayer for substitution, or for relief generally, the defendants Mitchell and *Hinman would have been permitted to show that the Pugsley mortgage was not a valid and subsisting lien upon the lands not affected by the decree in the former suit. And the evidence taken in this cause, and admitted on the hearing to be read, de bene esse, as I understand it, abundantly establishes the fact. The complainant’s bill must therefore be dismissed; but as he has prose-outed this suit as executor, in good faith, he is not to be charged with costs.

        Woodruff v. Cook, 2 Edw. Ch. 259; Bogardus v. Clark, 4 Paige, 623; Kent, Ch., in Murray v. Murray, 5 John. Ch. 60; Holms v. Remsen, 7 id. 286; Gelston v. Hoyt, 1 id. 543; Gardner's Adm'r v. Strode, 5 Lit. 339; Burch v. Scott, 1 Bland, 120; Sanders’ Heirs v. Gatewood, 5 J. J. Marsh. 327; see further Am. Ch. Dig. by Waterman, tit. Decree.

        Hopkins v. Lee, 6 Wheat. 109; Bank of United States v. Beverly, 1 How. U. S. 134; Washington Bridge Co. v. Stewart, 3 id. 413; Crandell v. Gallup, 12 Conn. 365; Breckerinridge v. Ormsby, 1 J. J. Marsh. 236; Allin v. Hall, 1 A. K. Marsh. 525.


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    Pritchard v. Hicks and another, exr’s, &c.
    December 2d.
    Where executors prove the win and a codicil thereto, and undertake the execution of the same, they cannot afterwards object that the codicil was not properly executed.
    It is a general rule, that a residuary legatee, or other person prosecuting for a distributive share of the estate, should make all the other persons interested in the distribution, parties to the suit, in order that only one account be taken.
    But this is not necessary where a creditor or legatee prosecutes, who is entitled to a priority of payment.
    The executor or administrator in such cases is the legal representative of the residuary legatees, and it his duty to protect their rights.
    And if there is a fair question for litigation, and he does nothing more than his duty in attending to their interests, he will be allowed his costs out of the fund belonging to them.
    Where the subject of the devise or legacy is described by reference to som extrinsic fact, extrinsic evidence may be resorted to, to ascertain that fact
    So where the words of a will are equally applicable to two persons or two things, paroi evidence is admissible to show what person was the object of the testator’s bounty, or which article he intended for the legatee.
    The complainant and Mariena Pritehard were the joint owners of a house and lot in Greenwich street, in the city of New York, on which the complainant, with her assent, had given a mortgage to Kinlock Stewart. The complainant also owed to George Shevill on a note about $100, and to the estate of Colonel William Jones about $150, on a note given to him before his death. In November, 1826, Mariena Pritchard made her will in writing, by which, after some small pecuniary legacies, she devised and bequeathed all the residue of her estate to the infant daughter of her relative William Stewart, of London, and made him, together with *the defendants, her executors. By two subsequent codicils, she disposed of her wardrobe in specific legacies to her friends, and made John Crerar a joint executor with the others. On the 20th of February, 1827, four days before her death, she made a third codicil as follows:
    New York, 20th February, 1827.
    “It is my will and pleasure that a certain mortgage, held by the heirs of Kinlock Stewart on my house in Greenwich street, be taken up or lifted with the moneys deposited in certain banks in this city; also all debts now due to Messrs. Shevill and heirs of the late Colonel Jones, say something like $250, in all $250.
    “ Mariena Pritchard, [l. s.]
    “ William Thompson.
    “ Eliza Coles.”
    At the time of making this codicil, the only mortgage on her house and lot in Greenwich street, was the one given by the complainant; and the only debts due to Shevill, or the heirs of Jones, were the two notes also given by him as above mentioned. After her death, the defendants, together with Crerar, who is since dead, proved the will and codicil before the surrogate, and took out letters testamentary thereon. The personal estate of the testatrix, which consisted principally of moneys deposited in the different banks of New York, was amply sufficient to pay the above sums, together with her debts and specific legacies. Thompson, one of the executors, was willing to pay off the mortgage, and the two debts mentioned in the last codicil, but Hicks declined doing so, and the funds being in his hands, the complainant filed the bill in this cause to compel the payment thereof. The defendant Thompson, in his answer, admitted the due execution of the codicil, and that he knew from the declarations of the testatrix at the time she made the same, that the above-mentioned notes and mortgage given by the complainant were what she intended should be paid, and were the only ones which could answer the description in the codicil.
    The defendant Hicks denies all knowledge of the due execution of the codicil, or the intention of the testator, *although he admits the codicil has been registered with the will, and that he, together with the other executors, except Stewart, took out probate thereon. A replication to the answer of Hicks having been filed, proofs were taken in the cause, which fully established every allegation in the bill not admitted by the answer.

      J. Boyd, for the complainant:
    The direction of the executrix to pay out of her personal estate specific debts due from the complainant, if it is to be considered in the nature of a legacy, it must be deemed a specific legacy, and consequently must be paid before there can be any residuary estate. It cannot therefore be necessary to make the residuary legatees parties. But the direction contained in the codicil is not a legacy, but an appointment, and as such is obligatory on the executors, if they have assets, over and above all debts and specific legacies. The codicil is a perfect and intelligible instrument in itself; and if any doubt exists as to the subject matter of its application, parol evidence is admissible to remove that doubt. (Roper on Leg. chap. on Construction of Bequests, sec. 6; Bland v. Bland, Finch’s Ch. Pre. 201, note; Attorney-General v. Hall, Fitz. 314; Wynne v. Hawkins, 1 Brown’s Ch. Cas. 179. Rob. on Wills, 470, ch. 3, pt. 7, Lond. ed. 1809; Masters v. Masters, 2 Pr. Wms. 423; Harris v. Bishop of Lincoln, 2 Pr. Wms. 435.)

      T. H. Flandereau, for the defendant Hicks:
    The residuary legatees not having been made parties, no decree can be made; (Brown v. Ricketts, 3 John. Ch. R. 553; Good v.

      Blewitt, 13 Ves. 399; Parsons v. Nevill, 3 Brown’s Ch. R. 365; Cockburn v. Thompson, 16 Ves. 327.) The codicil cannot be explained by paroi proof. At all events, no final decree ought to be pronounced until the parties interested have had an opportunity of contesting these questions.

      D. Selden, for the defendant Thompson.
   The Chancellor :—There is no validity in the objection made by the counsel of Hicks, that the residuary legatees are not parties to this suit. This is not the proper place *to contest the question as to the due execution of the codicil. As it relates to personal property only, if it was not duly executed, the executors should have proved the will without the codicil, and then all persons interested might have been cited before the surrogate to litigate that question, and have their rights settled by the proper tribunal. The defendants having undertaken the execution of the whole will, they cannot now object to the due execution of any part thereof; (Hume v. Burton, 1 Ridgw. P. C. 277; Monell v. Dicky, 1 John. Ch. R. 153.) It is a general rule, that a residuary legatee, or other person suing for a distributive share of the estate, should make all the other parties interested in the distribution, parties to the suit, so that one account only may be taken. But in this case, no account of the estate is to be taken against the executors, as the fund is admitted to be amply sufficient. A creditor or legatee who is entitled to priority of payment, need not make the parties interested in the residuum of personal estate, parties to the suit; (Brown v. Ricketts, 3 John. Ch. Rep. 556; West v. Randall, 2 Mason’s Rep. 181.) The executor or administrator is, in such cases, the legal representative of the rights of the residuary legatees, and it is his duty to see them properly defended; and if there is a fair question for litigation, and he does nothing more than his duty in attending to their interests, he is always allowed his costs out of the fund belonging to them.

The only question, then, is as to the construction and meaning of the last codicil. And here it is insisted by the counsel for Hicks, that no parol evidence can be received, to explain the intent and meaning of the testatrix.

Where the subject of the devise or legacy is described by reference to some extrinsic fact, extrinsic evidence must be resorted to for the purpose of ascertaining that fact, and thus to ascertain the subject of a testator’s bounty. Sanford v. Raikes, 1 Meriv. 646.

I do not conceive it necessary to go farther in this case. The testatrix directs the mortgage on her house, and the debts due to Shevill and the heirs of Colonel Jones, to be paid by her executors. The parol proof established the fact, that the mortgage and two notes in question were the only debts *and mortgage existing at the time, which could by any possibility answer the description in the codicil. But the rule as to the admission of parol evidence goes farther. For where the words of a will are equally applicable to two persons or two things, the intention of the donor shall not, for that cause, be defeated; but parol evidence may be received to show which person was the object of his bounty, or which article he intended for the donee.

The amount due on the mortgage and two notes, together with the costs of this suit, must be paid by the executors out of the assets of the testatrix in their hands.

       See 2 Phil. Ev. 297; and Cowen & Hills’ Notes, 537.

       See Wigram on the Admission of Extrinsic Evidence in aid of the Interpre tation of Wills, pp. 11, 14; Grey v. Shark, 1 M. & K. 602; per Lord Brougham, Ch., Miller v. Traverse, 8 Bing. 244; Hodges v. Horsfall, 1 Russ. &My. 116; Coyt v. Starkweather, 8 Conn. 289; Hiscocks v. Hiscocks, 5 M. & W. 363, 367; Attorney-General v. Shore, 11 Sim. 592, 616, 627, 631, 632; French v. Carhart, 1 Comst. 96; 2 Cowen & Hill’s Notes to Phil. Ev. 537, et seq., where all the authorities in this country and in England on this subject are collected.


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    Peckford v. Peckford.
    December 2d.
    Where a divorce was decreed in a suit brought by the wife against her husband, for adultery, an annuity equal to the annual value of one-third of the husband’s property, at six per cent. was allowed to the wife during her natural life, for her alimony.
    If her conduct had been discreet, prudent and submissive to her husband, the allowance to her would have been greater.
    The bill was filed in this cause by-the complainant against the defendant, her husband, for a divorce, upon the ground of adultery. A verdict had been rendered in favor of the complainant on the feigned issue awarded to try the fact of adultery. The only question on the hearing was as to the amount of alimony to be allowed to the complainant. It appeared from the proofs that the complainant had been guilty of indiscretions, and had not been a dutiful and submissive wife.

      A. L. McDonald for complainant.

      R. Bogardus for the defendant.
   The Chancellor :—The fact of adultery having been ascertained by the verdict on the feigned issue, the only question is as to the amount of alimony to be allowed. The usual course in such cases is to order a reference to ascertain, by the report of a master, the value of the defendant’s *property and what would be a suitable allowance. But as both parties have requested the court to settle the allowance to the wife from the fact now before it, I shall save the defendant the expense of a reference. I shall adopt his own estimate of the value of his property, $12,000, as proved by Joseph Gregory. As the defendant cannot marry again during the life of the complainant, and, therefore, will not want property for the support of a family, if the wife had been perfectly discreet, prudent and submissive to her husband, I should have allowed her half of this property.

Although there is no pretence for the charge made against her by the defendant, yet by going to England against his wishes, she exposed him to temptation, which has probably proved the destruction of their connubial happiness. Her indiscretions, too, after her return, were such at least as to produce remarks from her more discreet neighbors. Under these circumstances, she must be content to receive for her support for life an annuity equal to the value of one-third of his property, at six per cent. The amount already paid by the husband will probably cover her expenses and counsel fees over and above the taxable costs. There must be a decree for a divorce, and the husband must pay to the complainant’s solicitor the taxable costs, and must pay to her an annuity of four hundred dollars during her natural life, commencing on the 1st day of December, 1828, payable quarterly, and to be secured to her satisfaction. And if the parties cannot agree upon the manner in which the same is to be secured, it must be referred to a master to settle the manner in which the same is to be secured, and the place of payment, &c.


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    *Palmer v. Palmer.
    The Court of Chancery has no power to decree an absolute or a partial dissolution of the marriage contract, even with the consent of the parties, except in the special cases provided for by statute.
    Neither the act of 1813, concerning divorces, (2 R. L. 200,) nor the act of April, 1824, (6 ml. Laws of New York,) confers upon the Court of Chancery power to grant a divorce, a mensa et ihoro, unless the charges contained in the complainant’s bill are satisfactorily established.
    The usual course, where the bill is taken as confessed, is to order a reference to a master to report as to the facts.

      December 2d.
    If the bill is filed by the husband for a divorce, a mensa et thora, and he obtains a decree, the wife will not be entitled to a maintenance out of his property.
    Where the husband filed a bill against his wife for a divorce, a mensa et thora, and the wife in her answer denied every allegation of improper conduct charged in the complainant’s bill, and also set up cruel and inhuman conduct on the part of her husband towards her, and in consequence thereof consented to a decree of separation from bed and board forever, in which a suitable provision should be made for herself and children, the court refused to decree a divorce from bed and board.
    The complainant filed a bill against his wife, complaining of cruel and inhuman treatment, &c., and praying a divorce, a mensa et tlioro. The defendant put in her answer, in which she fully denied every allegation of improper conduct in the complainant’s bill, and also set up on her part cruel and inhuman conduct on the part of her husband towards her, which rendered it unsafe and improper for her to cohabit with him, or to be under his dominion or control; and in consequence thereof she consented to a decree of separation from bed and board forever, in which a' suitable provision should be made for the support of herself and her children. The cause was submitted to the court on bill and answer, and a written statement, signed by the solicitors for both parties, requesting a decree of separation, and consenting to an order of reference to a master to inquire and report which of the parties ought to have the care and custody of the children, and the amount of an allowance to be made for the support of the wife and children, or either of them, and the manner of payment thereof.

      *J. Greenwood, for the complainant.

      W. T. McCoun, for the defendant.
   The Chancellor :—This court has not power, even with the consent of the parties, to decree an absolute or partial dissolution of the marriage contract, except in the special cases provided for by statute. By the act of 1813 concerning divorces, (2 R. L. 200,) this court may, on a bill filed by the wife, decree a divorce from bed and board, if it shall appear from the answer and confession of the defendant, or by the bill being taken pro confessa against him, or by proof taken in the cause in the usual manner, that the defendant has been guilty of such cruel and inhuman treatment of the wife, or such conduct towards her as to render it unsafe and improper for her to cohabit with him, and be under his dominion and control. By the act of April, 1824, (6 Laws of N. Y. 249,) this court is authorized to extend to husbands the same rights that are given to femes covert by the act of 1814, and to grant to a husband the same relief, and for like causes, as femes covert are entitled to under that act. But in neither case can this court grant a divorce, unless the charges contained in the complainant’s bill are satisfactorily established. It would be" aiming a deadly blow at public morals to decree a dissolution of the marriage contract merely because the parties requested it. Divorces should never be allowed, except for the protection of the innocent party, and for the punishment of the guilty. In Barry v. Barry, (1 Hopk. 118,) Chancellor Sanford decided that a decree for a divorce, a mensa et thora, could not be made upon the admission of the party by suffering the bill to be taken pro confessa against him; but that the real facts must in such cases be ascertained by the report of a master. If the bill is filed by the husband, and he makes out such a case as to entitle himself to a decree, the wife will have no claim.,upon his property for her support. He will be released fi m the obligation of supporting her, and she will be turned off penniless upon community, unless she has separate property for her maintenance. The statute has *given to this court no authority, in such a case, to provide for her support out of the husband’s property. It must, therefore, be a very strong case which will induce this court to grant a final separation on the application of the husband.

In the case before me, every allegation of misconduct on the part of the wife is fully denied by her answer. On the other hand, she sets up such conduct on the part of the complainant as does, in fact, render it unsafe and improper that she should live with him, or be under his dominion or control. But I cannot-grant her any relief in this suit. If an amicable adjustment of these family difficulties cannot be made between the parties, she must file a bill to obtain a suitable provision for the support of herself and children. The complainant’s bill in this case must be dismissed with costs.

       The cruelty must be such as endangers life or health, and renders cohabitation unsafe. Perry v. Perry, 2 Paige, 501; S. C., 1 Barb. Ch. 516. See also Blowers v. Sturtevant, 4 Denio, 47; Whispell v. Whispell, 4 Barb. 217, 2 R. S. (4th ed.) 329, sec. 51.


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    The Phœnix Fire Insurance Company, appellants, v. Gurnee, respondent.
    December 2d.
    A court of chancery has jurisdiction to correct mistakes in policies of insurance, as well as in all other written instruments.
    The evidence of the mistake in all cases should be clear and satisfactory.
    This was an appeal from the equity court of the first circuit. The complainant applied to the clerk of the defendants, for an insurance on his grist mill in Haverstraw, and the clerk took down a memorandum of the insurance required, which was signed by the complainant and left with the defendants, in the words and figures following ; “ On a two story and a half frame grist mill, situate in the town of Haverstraw, on Minisicongo Creek, in Rockland county, one run of stones, 2 bolts, 1 spare runner, with privilege to use a stove in second story. Cost $1,750, insure $1,200. New York, 22d Sept. 1825.
    Daniel Gurnee.”

      The policy was made out and delivered to the complainant ; but instead of conforming to the memorandum, the subject of the insurance was therein described thus: “ On his frame mill-house, two and a half stories high, situate in the town *of Haverstraw, on Miniscongo Creek, Eockland county, privileged as a grist mill only.” The mill was afterwards burned, and the defendants insist that the policy was on the mill-house only, and not on the npll or machinery. The complainant applied to them to correct the policy agreeably to the written memorandum, which they refused to do; whereupon the complainant filled his bill to correct the mistake. The cause was heard on bill and answer, and the circuit judge decreed that the policy should be corrected agreeably to the written memorandum, with costs.

      J. L. Graham for appellants.

      J. Anthon for respondent.
   The Chancellor :—It is well settled that a court of equity has jurisdiction to correct mistakes in policies of insurance, as well as in all other written instruments. (Phil, on Ins. 14.) But the evidence of such mistake, and that both parties understood the contract in the manner in which it is sought to be reformed, should be clear and satisfactory. In policies of insurance, the label or written memorandum from which the policy was filled up, is always considered of great importance in determining the nature of the risk, and the intention of the parties. Thus, in Motteaux v. The London Insurance Company, (1 Atk. 547,) Lord Hardwicke held that a policy ought to be rectified agreeably to the label; and in the issues which he directed in that case, the label was treated as the real contract between the parties. In this case, there is a substantial difference between the policy and the written memorandum on which it was founded. The one is an insurance upon a grist mill, and the other is only upon the mill-house, or the mere covering of the substantial parts of the mill. It is to be presumed that insurers are acquainted with the nature of the property which they undertake to insure. If so, the defendants must have known that no owner of a grist mill would ever think of insuring the mill house only, leaving all the substantial parts of the mill exposed to certain destruction, if the mill-house or covering was destroyed. The difference of the description from the * written memorandum must, therefore, have been clearly a mistake of the clerk in filling up the policy, or an intentional fraud upon the insured; and the latter is certainly not to he presumed.

Although the complainant read over the policy before he left the office, it is hardly to be presumed that a plain countryman, unacquainted with the law of insurance, would have noticed or understood the difference which was produced by the change of phraseology in the policy from the plain and intelligible language of the memorandum, which was probably taken down from the bps of the assured.

I think the decree of the circuit court was correct, and the same must be affirmed with costs.


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    Ells v. Tousley.
    Where certain lands, belonging to E., were sold, under a loan office mortgage, and W., by request, bid off the same for E., E. being absent: E., a few days after the sale, refunded the money to W. At the time of the sale, T., one of the commissioners of loans, held a judgment against W.; T., together with his co-commissioner, in June, 1819, executed a deed to W.: in March, 1819, T. isued an execution against W., and in August, 1824, caused the mortgaged premises to be sold under judgment, and bid in the same himself In September, 1819, W. executed to B. a release of all his interest in the premises; and it was agreed between them that no deed should be executed to W. by the commissioners. T. purchased in the premises under his judgment, with a full knowledge of E.’s rights. Held that the purchase by T. could not be sustained, and that he could not retain the lien of his judgment upon the premises.
    December 2d.
    Under these circumstances, if the deed had been executed by the commissioners at the time of the sale, the title would have been in E. as a resulting trust, and W. could only have held the deed as a security by way of mortgage for the money advanced by him.
    The lien of a judgment does not in equity attach upon the mere legal title to land existing in the defendant, when the equitable title is in a third person.

    And if a purchaser under the judgment has notice of the equitable title before his purchase and the actual payment of the money, he cannot protect himself as a bona fide purchaser.
    In August, 1808, E. Boylston, being the owner of 16 acres of land in Manlius, mortgaged the same to the commissioners for loaning moneys in the county of Onondaga. He afterwards *conveyed the land in fee to T. Dimick, who, on the 28th of April, 1818, conveyed the same to the complainant in fee with warranty. The defendant was one of the commissioners of loans; and in September, 1818, in conjunction with the other commissioner, sold the premises at auction, upon the mortgage, and the same were bid in by J. 0. Wattles, for the sum of $200. In June, 1819, a deed to Wattles, in pursuance of the sale, and bearing date the 16th of September, 1818, was executed and acknowledged by the commissioners, and has since been put upon record. At the time of the loan office sale, the defendant had a large judgment against Wattles, on which he issued execution in March, 1820, and in August, 1824, he caused the 16 acres to be sold on the execution, and bid in the same. In August, 1825, the complainant filed his bill in this cause, setting forth the above facts; and also alleging that at the time of the loan office sale he was absent, and that Wattles, at the request of Dimick, advanced the money, and bid in the lot for the complainant; and that within a few days after the sale, the money was refunded by the complainant to Wattles, together with the sum of $5, which was received in full satisfaction of the money advanced by him on the bid. That in September, 1819, Wattles executed to the complainants a release, under seal, of all his interest in the lot, acquired by such sale. The bill further alleged that the deed was never in fact delivered to Wattles, but was fraudulently executed and put upon record by the defendant, for the purpose of making his judgment against Wattles a lien upon the land; and that the defendant purchased in the property, at the sheriff’s sale, with a full knowledge of the complainant’s rights, and threatens, after the time of redemption expires, to take a deed from the sheriff in pursuance of such sale. The defendant, in his answer, admitted the original title to the land in the complainant, as stated in the bill. He admitted that Wattles bid off the land, but denied that it was purchased for the benefit of the complainant, and alleged that he had been informed and believed Wattles bid off the property for his own benefit. He admitted that Dimick and the complainant informed Mm that Wattles bid off the land for *the complainant, but insisted that Wattles told him differently, and that he gave no credit to what Dimick and the complainant said. And the defendant insisted that if any such agreement was made with Wattles, it was void by the statute of frauds.
    A replication to the answer having been filed, testimony was taken, and the cause was submitted to the court upon the pleadings and proofs.

      John Watson, for complainant,
    cited Roberts on Frauds, 100; Steere v. Steere, (5 John. Ch. Rep. 12;) Gale v. Nixon, (6 Cowen, 448;) Jackson v. Moore, (6 Cowen, 725, 726, 2 Fonb. 36 and note;) Pushmon v. Filliter, (3 Ves. jun. 9;) Fisher v. Fields, (10 John. R. 495;) Ambrose v. Ambrose, (1 Pr. Wms. 321;) Neilson v. Blight, (1 John. Cas. 205;) Botsford v. Burr, (2 John. Ch. R. 410;) Jackson v. Graham, (3 Caines’ R. 188;) Jackson v. Town, (4 Cowen R. 602;) Jackson v. Chapin, (5 Cowen R. 485.)
    N. P. Randall, for defendant,
    cited Philips v. Thompson, (1 John. Ch. R. 140;) 1 Phil. Ev. 190, 3; Steere v. Steere, (5 John. Ch. R. 1;) 1 Phil. Ev. 131; Underhill v. Van Cortland, (2 John. Ch. R. 354, 5;) James v. McKernon, (6 John. R. 543;) Clarke v. Turton, (11 Ves. 240;) Coop. Eq. Pl. 7; 1 R. L. 75, sec. 12; Movan and wife v. Hays, (1 John. Ch. R. 340;) King v. Boston, (4 East. 577, note b;) Botsford v. Burr, (2 John. Ch. R. 405;) Lloyd v. Spillet, (2 Atk. 150;) Willis v. Willis, (2 Atk. 71;) Jackson v. Voorhees, (9 John. R. 129;) Sherill v. Crosby, (14 John. R. 358;) Denning v. Smith, (3 John. Ch. R. 333;) Verplank v. Sterry, (12 John. R. 536;) Goodrich v. Walker, (1 John. Cas. 250;) Jackson v. Schoonmaker, (2 John. R. 230;) Shelton's case, Cro. Eliz. 7; Jac. Law Dic. tit. Deed 2, sec. 7.

       Per Savage, Ch. J. in Jackson v. Parker, 9 Cow. 81; Talbot v. Chamberlain, 3 Paige, 219; Grosvenor v. Allen, 9 Id, 74; Kellogg v. Kellogg, 6 Barb. S. C. R. 117; see also 2 R. S. (4th ed.) 153, sec. 4.
      The only remedy of the creditor to reach the interest of the debtor in a contract for the purchase of land, is by filing a bill in equity, after he has exhausted his remedy at law for the recovery of the debt, by the return of an execution unsatisfied. Grosvenor v. Allen, 9 Paige, 74; Beck v. Burdett, Post, 305.

   The Chancellor :—From the testimony in this case, it is fully established that the property was bid in for the benefit of the complainant, on the loan office sale. Wattles testifies that he did not purchase the property for his own use; that he purchased it at the solicitation and request of Dimick, in trust for the sole benefit of the complainant; and upon *the assurance that he would refund the money in a few days, together with a compensation for his trouble in attending the sale. The amount bid was $200, but the amount paid was only $60 or $70, the residue being for the surplus moneys, for which a release was procured from the mortgagor. A short time after the sale, the money was refunded to Wattles by the complainant, and it was then agreed that no deed should be executed by the commissioners in pursuance of such sale. Dimick corroborates this statement, and also testifies, that shortly after the sale he told the defendant that Wattles bid off the land for the complainant, who had refunded the money to him since the sale. Munro, the other commissioner, also testifies, that after the sale commenced, Dimick requested it to be stayed a short time, until he could procure some person to bid; and shortly afterwards Wattles came in and bid off the property, and informed him at the time he paid the money on such bid, that he bid in the land as the agent of the complainant, and had no other interest in the purchase, Under these circumstances, if the deed had been executed by the commissioners at the time of sale, the title would have been in the complainant, as a resulting trust, and Wattles could only hold the deed as a security by way of mortgage for the money advanced by him. (Boyd v. McLean, 1 John. Ch. Rep. 582.) It is not material to inquire in this case, whether the defendant, at the time he executed the deed to Wattles, and put it on record, for the purpose of making his judgment a lien upon the land, had a full knowledge of the complainant’s rights. From what took place at the sale, he had sufficient to put him on inquiry, independent of the direct infprmation that he received from Dimick of the repayment of the money.

If, therefore, he made an agreement to discharge other lands of Wattles from the lien of his judgment, and substitute a lien on the 16 acres in lieu thereof, it was a fraud upon the complainant’s rights. But his judgment never could in equity, be a lien on this lot. The lien could not attach until the legal title was vested in Wattles by the execution of the deed by the commissioners. And long before any such conveyance was made, the equitable title to the land, at least, *was vested in the complainant, by the repayment of the money advanced, and by the agreement that no deed should be executed. I have lately had occasion to decide, that the lien of a judgment does not, in equity, attach upon the mere legal title to land in the defendant, when the equitable title is in a third person. And if a purchaser under the judgment has notice of the equitable title at any time before his purchase, and the actual payment of the money at the sheriff’s sale, he cannot protect himself as a bona fide purchaser.

The sale of the complainant’s lands under the judgment, and the purchase by the defendant, after being informed of all the circumstances of the case, cannot be sustained. And the defendant must be perpetually enjoined from taking a deed from the sheriff in pursuance of such sale. He must also release and quit claim to the complainant, all right, title and interest to the sixteen acre lot, and discharge the same from the lien of his judgment, by a proper conveyance or release, to be settled by a master; and he must also pay to the complainant his costs in this suit to be taxed.

       Actual possession under an unregistered deed is constructive notice to such a purchaser, and imposes on him the duty of inquiring as to the rights of the person in possession. Tuttle v. Jackson, 6 Wen. 313; see also Jackson v. Post, 15 id. 588; Hooker v. Pierce, 2 Hill, 650; Schutt v. Large, 6 Barb. 373; Embury v. Conner, 2 Sanf. S. C. R. 99. But an equitable lien to secure a prior indebtedness, is not entitled to preference over a judgment lien, where both attach on the land at the same time. Dwight v. Newell, 3 Const. 185.


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    The Western Insurance Company of the Village of Buffalo and another v. The Eagle Fire Insurance Company of New York and others.
    December 2d.
    Where three kinds of relief are prayed for in the bill, and the complainant is entitled to one of them, the defendant cannot demur.
    On a bill of foreclosure by a subsequent mortgagee, he will be entitled to redeem the prior mortgage, and then to sell the whole estate for the money due on both mortgages.
    If the prior mortgage should not be due, the junior mortgagee will be entitled to a decree for the sale of the mortgaged premises, subject to such prior mortgage.
    The complainants, as mortgagees of certain premises in the city of New York, filed their bill in this cause against the mortgagor and several junior incumbrancers, and also against the Eagle Eire Company of New York, as prior mortgagees of the same premises. The bill alleged that a part of the prior mortgages had been paid, and prayed a discovery and *reference to a master to ascertain the amount due; and that the mortgaged premises might be sold, subject to the incumbrance of the prior mortgages, or the amount due thereon, as thus ascertained; or that the complainants might be permitted to redeem the prior mortgages ; or that the whole interest in the mortgaged premises might be sold, and the amount due to the complainants paid out of the proceeds of such sale, after first satisfying the prior mortgages; and for general relief. The Eagle Eire Company answered as to all the facts set forth in the bill, but demurred to so much of the relief prayed for, as sought to obtain an order or decree for the sale of the premises covered by the prior mortgages; and they assigned for cause of demurrer, that the complainants were not entitled to such order or decree of sale, inasmuch as the same would give them, in the capacity of subsequent mortgagees, an undue control over the prior securities of those defendants.

      D. Selden, for complainants,
    cited Mondey v. Mondey, (1 Ves. & Bea. 223;) Haines v. Beach, (3 John. Ch. R. 465;) Ensworth v. Lambert, (4 John. Ch. R. 605;) Barker v. Dacie, (6 Ves. 686;) Mitf. Pl. 172.

      S. Boyd, for defendants,
    cited Titus, adm'r v. Viele, (6 John. Ch. R. 435;) Wotten and wife v. Copeland and others, (7 John. Ch. R. 140.)
   The Chancellor :—Whether this court can decree a sale of the mortgaged premises without the consent of these defendants, for the purpose of satisfying all the incumbrances out of the proceeds of such sale, according to their order of priority, is a question not properly presented by the demurrer. The proper object of a demurrer is to prevent the necessity of a discovery, or to save the expense of a protracted litigation, by settling the rights of the parties upon some dry point of law, plainly arising upon the case made by the bill. (Brooke v. Hewett, 3 Ves. jun. 253.) Where the complainant makes a specific claim to particular relief, which he cannot under any circumstances be entitled to at the '^hearing, perhaps the defendant may object thereto by way of demurrer, although there is also a prayer for general or other proper relief in the bill. If such a demurrer be allowable in any case, it ought not to be encouraged, as the defendant may avail himself of the objection at the hearing, with every possible advantage which he could obtain by a demurrer. And the court ought not thus to be called on preliminarily to examine the case in all its bearings, for the purpose of determining what relief the complainant may be entitled to at the hearing, when all the facts and circumstances are fully developed.

In this case, the relief demurred to is not specifically claimed by the bill. The prayer for relief is in a double alternative; and if the complainants are entitled to either of the three kinds of relief thus asked for, the defendants cannot demur, but may, at the hearing, insist that the complainants be confined to such relief only as they may be entitled to under all the circumstances of the case as then presented.

The usual decree in cases of this kind in England, where strict foreclosures are still in use, is that the complainants be permitted to redeem the prior incumbrances, and that the junior incumbrancers redeem in course or be foreclosed. By our practice, sales are substituted for strict foreclosures; and if the complainants are not entitled to a decree to sell the whole estate, and pay the prior incumbrancers out of the same, they are at least entitled to redeem, and then sell the whole estate for the purpose of obtaining the redemption money, as well as to satisfy their own incumbrances. And if the prior mortgagees will not consent to a sale, or the amount of their incumbrances is not yet due, I do not, at present, perceive any valid objection to a decree for a sale of the equity of redemption subject to their mortgages, leaving the purchaser to pay the same as they become due, or whenever the prior mortgagees think proper to enforce their lien upon the premises.

This demurrer to one of the three alternatives in the complainants’ prayer for relief is therefore improperly taken, and must be overruled with costs.


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    Mitchell and Nash v. Smith.
    December 2d.
    A bill of discovery will be sustained to aid the prosecution or defence of a civil suit in a foreign tribunal.
    In this suit, a bill of discovery was filed to aid the defence to an action at law brought against the complainants in the Superior Court of Fairfield County, in the state of Connecticut, at the suit of the defendant Smith, who is a resident of this state. To this bill, the defendant interposed a plea to the jurisdiction of the court; alleging that by the laws of Connecticut, the Superior Court, on a bill in equity brought and presented there, can compel and enforce from a plaintiff in a suit at law a discovery and foreclosure, on oath, of the matters charged in such bill, to be used as evidence in the suit at law.

      W. Silliman, for complainants,
    cited 1 Fowler’s Exch. Pr. 395; Asgill v. Dawson, (1 Bunb. R. 70;) 1 Brown’s C. C. 418; Wood v. Strickland, (2 Ves. & Beam. 150; Beame’s Pleas in Eq. 91; 2 Madd. Pr. 240; Ward v. Anedondos, (1 Hopk. R. 223;) Arglasse v. Muschamp, (1 Vern. 75;) Beame’s Pleas, 97;) 1 Chit. Pl. 443, and note to Am. Ed.; Bishop of London v. Fylche, (1 Brown’s C. C. 98;) Kennedy v. Cassillis, (2 Swan’s 330; 1 Madd. R. 161; Dunn v. Coates, (1 Atk. 288;) Anonymous, (2 Ves. sen. 451;) Street
      v. Ridgley, (6 Ves. 821;) Brandon v. Sands, (2 Ves. jun. 514;) Beame’s Pleas, 148.
    J. R. Scott, for defendant,
    cited 1 Madd. Ch. Pr. 161, 171; Coop. Pl. 191; Beame’s Pleas in Eq. 259, 260; Swift’s Dig. Cont. 208; Dunn v. Coates, (1 Atk. 289;) Earl of Derby v. Duke of Athol, (1 Ves. sen. 205;) Anonymous, (2 Ves. sen. 451;) Beame’s Pleas, 335; Cunningham v. Wegg, (2 Brown’s C. C. 241;) Statutes of Connecticut, 138, sec. 10; id. 195, sec. 1; Beame’s Pleas, 323, 324.
   The Chancellor :—The different elementary writers on the jurisdiction of the Court of Chancery lay it down as an ^established principle, that this court will sustain a bill of discovery to aid the prosecution or defence of a civil suit in a foreign tribunal. (Coop. Pl. 191; Mitford’s Pl. 150; 1 Madd. Ch. 196.) And the case of Crow and others v. Del Ris & Vellego, decided by the English Court of Chancery in 1769, is cited by those writers as establishing that principle. This jurisdiction, which is merely ancillary to the courts of other states, is entirely different from that which would interfere with their proceedings by injunction. If the party wishes to stay the proceedings at law until he can obtain a discovery, he must apply to the tribunal of the state or country where the action at law is pending.

The plea in this case appears to be founded upon the principle, that this court will not sustain a bill of discovery in aid of the jurisdiction Of another court, if such court has power to compel the discovery required. But that principle is misapplied here. The case of Dunn v. Coates, (1 Atk. 288,) cited in support of this principle, was a bill seeking a discovery in aid of the jurisdiction of the Ecclesiastical Court; and the discovery was refused, on the ground that those courts were capable of coming at the discovery themselves. By the ordinary course of proceedings in those courts, a party may set forth the facts on which he relies, or which he seeks to establish, in the form of an allegation, which the other party may be compelled to answer personally, on oath. Such discovery is not only made in the same court, but in the same suit or proceeding. A bill of discovery in such a case would be worse than useless. The power of the superior courts in Connecticut to compel a discovery is of a very different description. It sufficiently appears from the defendant’s plea, and such is undoubtedly the fact, that those courts have two distinct and independent jurisdictions, one of law, and the other in equity, like the Exchequer in England, or the federal courts of our own country. For the purposes of discovery, therefore, the law and equity sides of the Superior Court of Fairfield County are as distinct as if those powers were separately vested in different judges. If that court has the power to compel a'discovery from the defendant, who is a resident of this state, it cannot be done by any proceeding in the *suit instituted there on the common law side of the court, but must be by a bill in Chancery. Whether the equity powers of that court are sufficiently extensive to reach this particular case of compelling a discovery from a non-resident party, does not distinctly appear from the averments in the defendant’s plea. The same must, therefore, be overruled with costs; and the defendant must answer the complainant’s bill within thirty days.

       The learned Chancellor is not supported in this opinion by recent Eng. lish cases. The Court of Chancery in that country have of late shown a strong disinclination to sustain a bill of discovery to aid a prosecution or defence in a foreign tribunal. In Bent v. Young, 9 Sim. 161; Shadwell, V. C., is reported to have said, “In the case of the Earl of Derby v. Duke of Athol, Lord Hardvieke seems to think it clear that this court will not compel discovery in favor of an inferior court, or a court which has power, in itself; to compel a discovery. Those two propositions are plainly deducible from the language which his Lordship uses towards the conclusion of his judgment; and I consider that, in the contemplation of the Court of Chancery, every foreign court is an inferior court.

      “In the case of Crowe v. Del Rio, (which is the only authority on the point now before me), the defendants were compelled to answer by the overruling of the demurrer; and it seems to me that, without entering into the merits of the case, the demurrer was defective in point of mere form, and therefore it might have been overruled on that ground. In that case two grounds of demurrer were assigned. One was the general want of equity; but, as the bill was not filed for relief but for discovery only, that could be no objection. The other ground was that the defendants were not parties in the foreign court. That, therefore, was a speaking demurrer, for there was no allegation on the face of the bill, that they were parties to the suit, and, the Lord Chancellor may, very probably, have overruled the demurrer on that ground, without at all entering into the consideration of the question, whether this court will enforce discovery in aid of proceedings in a foreign court.


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    Aikin and Ten Eyck v. Satterlee and Satterlee.
    December 2d.
    A party cannot set off a judgment, unless he is the beneficial, as well as the nominal owner of it.
    Where A. indemnified T., a sheriff, against selling S.’s goods, for which S. recovered a judgment against T.; held, that A. and T. could not set off against S. a judgment which A. had purchased for less than one-third of its amount, and taken an assignment of it in the sheriff’s name.
    Aikin, having obtained judgment against Southwick, Ten Eyck, sheriff of Albany County, being indemnified by Aikin, levied on the property of the defendants, and sold it as the property of Southwick, under a fi. fa. "in favor of Aikin. The defendants sued Ten Eyck in the Supreme Court for the trespass, and recovered, in October, 1827, $500. In the October term of that court, in the year 1826, Turner obtained judgment against the defendants for $618 99 ; which, in September, 1827, Aikin purchased for $175, and took an assignment to Ten Eyck, in his (Ten Eyck’s) name. The defendants in their answer offered to deduct the amount actually paid by Aikin from their judgment against Ten Eyck, provided the judgment so assigned to Aikin was satisfied and discharged thereby. The defendants moved, upon bill and answer, to dissolve the injunction issued to restrain their proceeding at law to collect their judgment against Ten Eyck.

      J. Edwards, for the complainant:
    Where a judgment can be enforced against a party, such party may set off against it a judgment which he has recovered in his own name, or acquired by assignment. (Simpson v. Hart, 14 John. R. 63, 3d *vol. Amer. Dig. 451.) The right to set off judgments against each other does not depend upon the statute of set-offs, but upon the general jurisdiction of the court over its suitors. (Mitchell v. Oldfield, 4 T. R. 123; 2 Str. R. 891.) In O'Conner v. Murphy, (1 H. Black. R. 659,) the court allowed a person to off set a judgment in which he had only the beneficial interest, and was not a party on the record. (Montague, 11; 2 H. Black. 587.)

      L. H Palmer, for the defendants:
    The Supreme Court have decided this question, and disallowed the set-off. No new equity is set up here. (Satterlee v. Ten Eyck, 7 Cowen, 480.) The complainant Ten Eyck, having no beneficial in terest in the judgment of Turner, is not entitled to the set-off. (Tuttle v. Beebe, 8 John. R. 152; Fair v. McIxer, 16 East, 131.) To allow the set-off in this case would be an injury and fraud upon the creditors of the defendants. (1 John. Cas. 51; 2 Caines. Cas. in Err. 303; 19 John. R. 323; 20 John. R. 137.) It would also be against public policy. (Earl of Chesterfield v. Jansen, 1 Atk. 352; 2 Ves. sen. 156.
   The Chancellor:—This is the same case which was before the Supreme Court on an application for a set-off, in October term, 1827. (7 Cowen, 480.) The same question is now presented to this court, with the additional fact, that Aikin purchased the judgment, which he seeks to set off against these defendants, for less than one-third of its nominal amount. And the defendants, in their answer, say they have offered, and are still willing to deduct the amount actually paid by Aikin for the same, from their recovery against the sheriff, provided the judgment so assigned to Aikin is satisfied and discharged thereby.

This court can never permit a person to say, I am the real defendant, in a judgmentfounded in tort, because I employed the nominal defendant to trespass upon the rights of the plaintiff and indemnified him for so doing. The whole merits of this case were fully before the Supreme Court, and although their decision may not be deemed technically binding and conclusive here, yet lean see no reason to dissent *from the opinion there expressed. The defendants have offered to do what was equitable, and probably more than they could have been legally required to do. The injunction must therefore be dissolved.

        Mason v. Knowlson, 1 Hill N. Y. R. 218.