source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    In the matter of Hopper, a lunatic.
    After the appointment of a committee of a lunatic by the court of chancery, it is a contempt of court for a creditor to sue the lunatic, or to levy an execution upon his property, without permission of the chancellor or vice chancellor having jurisdiction of the proceedings in lunacy.
    The proper course for the creditor of a lunatic, who is under the care of a committee, is to apply to the court, by petition, for the payment of his debt out of the lunatic’s estate ; or for leave to bring a suit, or to be permitted to establish his debt on a reference to a master, if the existence of the debt is disputed by the committee.
    Where a judgment is obtained against a lunatic, and an execution issued and levied upon bis property, before the institution of proceedings in lunacy in the court of chancery, the court will not set aside the judgment and execution upon a summary application of the committee, although such judgment and execution are over-reached by the finding of the jury upon the commission oflunacy.
    A vice chancellor may appoint his son a committee of a lunatic, and may hear and decide upon an application of such committee in behalf of the lunatic or his estate ; the committee being only an officer of the court, and having no personal interest in tire questions to be decided by the vice chancellor.
    The provision of the revised statutes which deprives a judge of the power of acting as such, where he is related to either of the parties by affinity or consanguinity, does not extend to a case where a relative of the judge is only a formal party to the suit or proceeding, and has no personal interest in the subject matt er of the litigation, or in the decision to be made therein.

      This was an application by the committee of a lunatic i& stay the. proceedings in certain suits commenced against the lunatic, after he had been found to be of unsound mind, upon a regular inquisition, under a commission issued out of the court of chancery. The petitioner also asked for a stay of the proceedings upon executions, against the property of the lunatic, which had been issued out of a court of law before1 the institution of the proceedings in the court of chancery, to obtain a commission of lunacy. The proceedings in this court were commenced before the vice chancellor of the first circuit’, and his son was appointed the committee, upon the application of the friends of the lunatic. The petition upon which the present motion was founded, although it. was signed by the committee, did not name or describe him as the petitioner; neither was the petition addressed to the chancellor, as required by the 10th rule of this court. The application was, in the first instance, made to the vice chancellor;, but an objection being made that he was disqualified from acting as a judge upon the matter of the petition, on the ground that he was the father of the committee, he declined deciding the matter, and directed the application to be made to the chancellor.

      C. Edwards, for the petitioner.

      W. Silliman, for the plaintiffs in the suits at law.
   The Chancellor.

After the appointment of a committee of a lunatic by this court, no creditor can be permitted- to interfere with the property in the hands of the committee, without the permission of the chancellor or vice chancellor having jurisdiction of the case. And the sheriff who should attempt to levy upon the property of the lunatic, finder such circumstances, would be punished as for- a contempt of the court. Neither will this court permit a suit at law to be brought against the lunatic, without first asking the permission of the court, for the recovery of a debt, or otherwise, while he is under the care of the committee. The proper course for the party who has a claim against the lunatic, or his estate, is to apply to this court, by petition, for the payment of the debt, or for leave to bring a suit for the purpose of establishing the ■claim. And if the chancellor or vice chancellor, by whom the committee was appointed, is satisfied the debt is justly due, ■the committee will be ordered to pay it out of the estate; or if the claim is doubtful, the court will either have it settled by a reference to a master, or give the claimant permission to establish his claim by a suit at law or a bill in equity, as may be proper, ■under the particular circumstances of the case. The institution of suits against the lunatic, after he liad been found to be such, without the permission of the vice chancellor before whom the proceedings in lunacy were pending, was therefore improper. And although the affidavit of the party and his ■attorney, that they were ignorant of the fact (hat the proceedings in lunacy had been commenced, may be sufficient to excuse them from punishment for a wilful contempt, yet, as the lis pendens was constructive notice to them and all others of the institution of those proceedings, the court may order the proceedings to be stayed as of course.

But in the cases in which judgments had been obtained and executions issued and levied on the property of the lunatic, before this court obtained jurisdiction in the matter by the institution of proceedings before the vice chancellor to obtain a commission of lunacy, I doubt whether it is right to interfere in this summary way to deprive the plaintiffs of their legal liens, although the recovery of the judgments and the whole proceedings in those suits are over-reached by the finding of the jury, under the commission of luncy. As the court of law had jurisdiction of the cases, if the judgments are either irregular or erroneous, on the ground that the suits were prosecuted against a defendant who was legally incompetent to make any defence thereto, the remedy appears to be by a summary application to the court in which the judgments were obtained, or by a writ of error. Or if there is no remedy at law, and the judgments have been improperly recovered against a lunatic, for pretended claims, which were not justly due, it may be a proper case for the committee to proceed by a bill in equity, to be relieved against such judgments.

The objection that the vice chancellor of the first circuit had not jurisdiction to appoint' the committee and to approve of the bond, becausé such committee happened to be his son, is not well taken. Neither is there any legal objection to the vice chancellor’s hearing this application. The committee has no personal interest whatever in this matter ; he being the mere officer or agent of the court, to protect the person and property of the lunatic, subject to such orders and directions as the vice chancellor having jurisdiction of the case may think proper to make or give, from time to time, relative to the trust. The case, therefore, does not come within the letter or spirit of that provision of the revised statutes which disqualifies a judge from acting as such, in a suit to which he is a party, or in which he is interested, or where he is related to either of the parties by affinity or consanguinity. (2 R. S. 275, § 2.) The act of January, 1834, relative to vacancies and disabilities in the office of vice chancellor, only extends to cases of legal incompetency, and not to those in which the vice chancellor, from a mere feeling of delicacy, is unwilling to decide the cause or matter pending before him. In all such cases, unless they come within the provision of the sixty-third section of the title of the revised statutes relative to the court of chancery, (2 R. S. 178,) the vice chancellor should decide the question or matter upon which a decision is called for; leaving the party who may feel dissatisfied with such decision to his appropriate remedy, by appeal to the chancellor.

The informality of this petition is such as to-render it improper. to present it to the vice chancellor in its present shape;. and as" I have no authority to proceed upon it as an original application to the chancellor, the petition must be dismissed, but without prejudice to the rights of the committee to apply to the vice chancellor by a new petition for such relief and direction in this matter as may be proper. As the committee has acted under the direction of the vice chancellor in making his application here, there is no ground for charging the estate of the lunatic with the costs of opposing the same. And costs should not be charged upon a committee personally, where he acts in good faith in making an application to the court, in a ease of this kind.


text:
    Pettit vs. Shepherd, administratrix, &c.
    The court of chancery has jurisdiction to set aside a conveyance which is a cloud upon the complainant’s title; and may also interpose to prevent the giving of a conveyance, under pretence of right, which would operate as a cloud upon the title to real estate.
    Where the ten years lien of a judgment has expired, if a purchaser colludes with the judgment debtor to deprive the creditor of his lien upon the lands purchased, knowing that the judgment is unpaid, or if he purchases under circumstances indicating an intention to deprive the creditor of the means -of collecting his judgment, such purchaser will not be protected as a bona fide purchaser of the land, discharged of the lien of such judgment, although he pays the fail value of the land.
    A mere notice of the existence of a judgment of more than ten years standing, will not deprive a purchaser of the protection of the statute, as a bona fide purchaser of the land upon which the judgment was a lien.
    This was an appeal from a decretal order of the vice chaneellor of the seventh circuit. The object of the complainant’s bill was to stay the sale of his farm upon an execution, in favor of the defendant, as administratrix of D. Shepherd, de= ceased, against the person from whom the farm was purchased. The complainant purchased the farm of J. Parks, and took a conveyance thereof, on the 29th of January, I829a and shortly afterwards paid the consideration money therefor and took possession. In January, 1819, a few days over ten years before this conveyance, D„ Shepherd recovered a judgment against Parks, which became a lien upon the farm, and which judgment remained unsatisfied at the date of the deed to the complainant; and in 1832, the defendant, as the administratrix, revived the judgment and took out execution thereon, and was proceeding to collect the amount due, by a sale of the complainant’s farm, at the time of the commencement of this suit. In the bill, which was sworn to, the complainant alleged that he purchased the farm in good faith, with out any knowledge or notice of the existence of the Shepherd judgment. He therefore insisted that the judgment was no longer a lien on the farm. And he prayed that the farm might be adjudged and decreed to be free and discharged of and from the lien thereof; and that the defendant might be perpetúally enjoined from selling the farm under her execution. The answer of the defendant put in issue the allegation of the complainant, that he" purchased the farm in good faith and without notice of the existence of the judgment. And the proofs in the cause conclusively established the fact that the complainant not only was" informed of the existence of the judgment at the time of -his purchase, but that he also knew, at that time, that it was still due and unpaid. Upon the hearing of the cause before the vice chancellor, he dismissed the bill, with costs; from which decree the complainant appealed to the chancellor.

      W. H. Seward, for the complainant.
    Actual' notice that Daniel Shepherd had, more than ten years before the complainant’s purchase, recovered a judgment against Parks, while he was seized and in possession of the premises, and that the judgment was unpaid, did not constitute the complainant a mala fide purchaser. The judgment would be a perpetual lien, if it were not for the provisions in the statute ; and the docketing of the judgment would be perpetual notice to all purchasers. Now actual notice, such as is admitted to have been given to the complainant in this case, is no more effective than the constructive notice of the docket of the supreme court. Such actual notice, however certain it may be as to the existence of the judgment, can be no more conclusive of the existence of the judgment, of the amount of it, or of the time when it was rendered, than the records of the court. It is no more conclusive of the fact that the judgment is unpaid, because in all cases of constructive notice of a lien or conveyance, the constructive notice of the existence of such lien or conveyance is notice that the lien" or conveyance exists; and the purchaser is concluded from setting up that he supposed or believed there had been a discharge or re-conveyance.
    To hold, then, that notice of the existence of the judgment and that it remains unpaid is evidence of mala fides, so as to deprive the complainant of the protection of the statute, is to render the statute a senseless act of legislation—a dead letter. Under such a construction of the statute, there is no case in which the statute can have an application. The language of the statute, subject to that construction,- is, that a judgment duly docketed shall be a perpetual lien against all the world. There can be no purchase in good faith, because there can be no purchase without notice. Before a statute can thus be construed into absurdity, it is important to consider what was the intention of the legislature. That intention manifestly was, to require the enforcing of a judgment within ten years, so that the lien of judgments should not be an obstruction to the alienation of land. This view of the effect of the statute, as well as its policy, has received the sanction of the supreme court in the case of Little v. Harvey (9 Wendell, 158.) In that case the court expressly refused te receive testimony that the purchaser knew of the existence of the judgment, on the ground that the testimony was unimportant. If the defendant knew of the existence of the judgment, he also knew that more than ten years had elapsed since it was docketed, and that by the express provisions of the statute, it had ceased to be a lien on the real estate of the defendant in the judgment, as against subsequent encumbrancers. “ Mere notice” say the supreme court, “of the pri- or judgment, actual or constructive, will not render the purchase mala fide. Upon any other construction, the act would be a dead letter, as constructive notice exists in all cases of prior judgments. No doubt is entertained that all purchasers are to be considered purchasers in good faith, within the meaning of the act, except those who purchase with an actual fraudulent intent.” The same principle has been recognized in the court of chancery. In the case of James v. Hubbard, (1 Paige, 232,) the chancellor distinctly recognizes the principle that the lien of a judgment ceases at the expiration of the ten years, as against one xvho purchases within ten years after the judgment was docketed. The same doctrine is also deducible from the opinion of the chancellor in the case of The Mohawk Bank v. Atwater, (3 Paige, 58.)
    The complainant was a bona fide purchaser; as all purchasers, under this act, are to be considered bona fide purchasers, except those who purchase with an actual fraudulent intent. No proof is given of any such intent on the part of the complainant, nor are there any circumstances from which such an intent can be inferred in this case. The ordinary badges of fraud are an agreement or understanding that the sale shall be conditional, or in trust for the grantor, inadequacy of price, &c. But none of these exist here.
    The complainant paid the whole purchase money to Parks. But if the complainant retained the amount of the Shepherd judgment, it would not be proof of mala tides. On the contrary, the very converse of an actual intent to defraud the plaintiff out of the money due him would be inferred from the complainant’s reserving the money to pay the defendant’s debt. There is in this transaction of purchase no badge of fraud as against the defendant in particular, or against the creditors of Parks in general. The sale was absolute. It was for. the complainant’s sole benefit, and not in trust for Parks; it was for an adequate price ; it was without concealment; and there was no relationship between the parties. It was not the business of the purchaser to seek a judgment creditor, whose lien had - expired, and pay him the amount of a judgment.
    The complainant being a bona, fide purchaser, and-the lien of the judgment having ceased as against him, his bill ought to have been sustained, and the injunction made perpetual. -But it is contended that if the lien of the defendant’s judgment had expired as against the complainant, he was under no necessity of resorting to equity, but might have suffered the sale to proceed. To this proposition we reply : 1. That the defendant cannot' take this ground at the hearing. Bhe ought either to have demurred to the bill, or raised the objection in the answer. It is too late, for the first time, to make the objection at the hearing, that the complainant had a perfect remedy at law. And 2. That this court has jurisdiction in this case which it ought to" exercise. It is the- constant practice, and one of the most ancient branches of the jurisdiction of the court of chancery, to. interpose to remove obstructions and clouds from the title to lands. In Hayward v. Dimsdale, (17 Vesey, 111,) the bill was filed to set aside a void deed. The lord chancellor, on demurrer, decided that the court of chancery had jurisdiction to order a deed, .forming a bioud upon thé title, to be delivered up, although such deed was void at law. The general principle Of a court bf equity is, that a bill in equity may be filed for the delivery up of an Instniment which cannot be enforced at law, so that the plaintiff may hot be harassed by vexatious proceeding there. This Is the language of the blaster bf the rolls, in a base where a bill was filed by a person who had contracted to purchase land,Which contract the person who had contracted to cell could-nofc enforce at law, because he had hot a title. (Grover v. Hugell, 3 Rus. R. 428.) The general powers of this codrt are very great, and, amongst others, it is assistant to the courts of law in counteracting fraudulent judgments, or where in coftseiencd and equity the plaintiff ought not to avail himself of a judgment at law. (3 Desau. 318. Haveland v. Bloom, 6 John. Ch. Rep. 182.) The case of Lansing v. Eddy, (1 John. Ch. Rep. 49,) is not applicable here. The cotirt in that casé denied the injunction expressly on the grbund that the same relief might be had by an order to' stay proceedings, obtained from a judge;That case, however, decides that it is equitable to stay a sale” ou a void judgment. It is also a Well settled branch of equity jurisdiction, that equity controls liens upon real éstate, whether general or special, legal or equitable. It sometimes' overreaches and displaces the general lien of a prior judgment.So it enforces the expired lien, whefe the purchaser has notice that the power by which it is displaced is inequitable or improperly executed. (Morris v. Mowatt, 2 Paige, 590.) And where there may be á remedy "at law, yet, if doubtful Or difficult, equity will hold jurisdiction. (Weymouth v. Boyer, 1 Vesey, 417.)

      F. G. Jeweli, for the defendants;
    The testimony in-the cause shows conclusively that the complainant, at the time he purchased the farm in question, knew and was fully informed of the existence of the judgment, and that it was unpaid ; thereby falsifying the allegation-in the bill bf his utter" ignorance of the judgment. And the testimony also shows that Pettit retained money from the price agreed to be paid for the farm, to indemnify himself against the judgment r

      The complainant is not a purchaser of the' premises' fb question in good faith, and therefore the judgment of Shepherd is still a lien on the premises against the complainant.- (15 John. Rep. 555.) Pettit would not be defrauded, if the judgment should be held to be a lien in opposition to hia deed. Notice to Pettit of the judgment, and of its being unpaid, is, per se, evidence of fraud in him. If, by construction of the statute, ail purchasers.ai:e to he deemed purchasers in good faith,, except those who purchase with an actual fraudulent intent, and actual and personal notice is not, per se, evidence of such intent, then the bill ought to be dismissed, because it does not allege or set up any ground .for relief. It should have denied all fraudulent intent on the part of the complainant in the purchase, as upon such intent the rights of the parties depend. (5 Cowen's Rep. 92.) But, whether the allegations in the bill are sufficient to put in issue the fraudulent intent of the complainant or not, the facts stated do not give the complainant any rights as plaintiff in a court of equity.- (Beekman v. Frost, 18 John. Rep. 562.)
    The facts proved show that the complainant purchased with an actual fraudulent intent- He had notice of the ex-istefice and non-payment of the judgment, and- made provision to guard against loss,- in case his attempts to defeat it should prove unavailing. By the statute, (1 R. L. of 1813, p500,) it is enacted that 'all real estate of any person, against whom any judgment shall be obtained in a court of record for any debt, &c. shall be subject to be sold on execution, and the judgment shall be a lien- on such land; provided that all judgments shall cease to be a lien or encumbrance on any real estate, as against bona fide purchasers or subsequent encumbrances, by mortgage, judgment or otherwise, from and after ten years from the time the same shall be docketed. The provision in the revised statutes is as follows ; “ From and after ten years from, the time of docketing every such judgment, it shall cease to bind or be a charge upon any such property, as against purchasers in good- faith, and as against encumbrances, subsequent to such judgment, by mortgage,' judgment, decree or otherwise.” (2 R. S. 359 § 4.) The provisions of both- statutes are substantially the same; and the question arises, what contitutes a bona fide purchase, or a purchaser in good faith 1 In Dey v. Dun-ham, (15 John. Rep. 555,) which was a case under the recording act, Platt, justice, says : “ The statute annuls a prior unregistered mortgage in one case only, and that is in favor of a subsequent bona fide purchaser. By a bona fide purchaser, the statute meant a person who buys without knowledge of the prior mortgage, and who would in fact be defrauded if such prior encumbrance were to stand in opposition to his title.” Notice supersedes registry. An unregistered mortgage is valid between mortgagor and mortgagee ; and whoever takes a conveyance with intent to invalidate such security, is not a bona fide purchaser, but voluntarily aids in defrauding the mortgagee. A judgment ceases to be a lien, by the statute, in one case only; that is, after ten years as against a bona fide purchaser. It is valid between the parties, and remains a valid lien upon the lands of the party against whom the judgment is rendered ; so that a judgment of more than ten years standing, as between the parties and as respects the land which it binds, is in the same condition that an unregistered mortgage is. Neither of which is liable to be defeated but by a subsequent bona fide purchaser or encumbrancer. Tlie question, whether a judgment ceases to be a lien as against a purchaser, after ten years, depends then upon the fact whether such purchaser is a bona fide purchaser. The act declares that the lien as against subsequent encumbrances by mortgage, and judgment shall cease absolutely; but as against subsequent purchasers, it shall cease to be a lien only as against such as are bona fide. Then, what is a bona fide purchaser 1 or rather, what facts and circumstances attending a purchase, made after the lapse of ten years, will render such purchase mala fide 1 The positions of Judge Sutherland, in Little v. Harvey, (9 Wendell, 157,) that all purchasers are to he considered purchasers in good faith, within the meaning of the recording act, except those who purchase with actual fraudulent intent, and that a mere notice, either actual or constructive, will not render the purchase mala fide, were not called for by the facts of that case; and are therefore to be considered as the mere dicta of the judge, and not as judicial decisions. (Hicks v. Hotchkiss, 7 John. Ch. Rep. 305.)
    The docket of a judgment, by the act, is constructive, not actual notice, to all the world for the term of ten years. It then ceases. The docket is no longer any evidence of the existence of the judgment, and all persons have a right to deal with the judgment debtor, to purchase or to encumber his lands, and to consider them as discharged from all judgments of more than ten years standing. The judgment so situated is like an unregistered deed or mortgage. It is secret as to all the world, except the parties. It is inoperative as against every person without notice; but it is binding upon and a valid lien on the lands of the person against whom the judgment still exists as an unpaid debt. In the case of Tuttle v. Jackson, (6 Wendell, 227,) the chancellor says, “The rule of equity here is therefore the rule of law; and whatever would in equity charge the party with notice of the equitable right of a prior purchaser or encumbrancer, so as to deprive him of the privilege ctf pleading that he is a bona fide purchaser without notice, must in a court of law be sufficient to protect the legal rights acquired under unregistered deeds against subsequently recorded conveyances.” (See also Doe v. Alsop, 5 Barn. & Ald. Rep. 142 ; Dickerson v. Tillinghast, 4 Paige, 215; and 4 Kent’s Com. 166.)
    There is no difference between personal and constructive notice, in its consequences, except as to guilt. (2 Rand. Rep. 100. 4 Idem, 212. 2 Eden’s Rep. 228.) The act, as to subsequent encumbrances, was intended to operate, like a statute of limitations, as an absolute bar upon prior judgments of more than ten years standing; but even as to them, although the words of the act are absolute in terms, yet equity, if the above cases are correct, in cases where the subsequent encumbrance is taken with personal notice of the prior judgment and its non-payment, will relieve the prior judgment against the subsequent, encumbrance,
    In the case before the court, even if the dicta of Judge Sutherland are correct, the complainant is not entitled to relief. The evidence shows that he purchased with knowledge of Shepherd’s judgment and of its being unpaid, with a view to avoid it; and being conscious of guilt, retained in his hands a part of the price of the land as an indemnity against the judgment. In Dey v. Dunham, (15 John. R. 568,) Judge Platt says: “ By a bona fide purchaser, I understand the statute to mean a pen-son who buys without knowledge of the prior mortgage, and who would in fact be defrauded if such prior encumbrance were to stand in opposition to his title. The manifest object pf the statute was to protect purchasers against secret comveyances, of which such subsequent purchasers had no notice.” Here, the manifest object of the statute concerning judgments, was to protect subsequent purchasers against stale judgments, supposed from length of time to be paid, when they are not paid; but which fact is unknown to the purchaser,
   The Chancellor.

The defendant was probably too late in making her objection for the first time at the hearing, that if the lien of the judgment no longer existed, the complaim .ant could not be injured by the sheriff’s sale because he would have a perfect defence at law against the purchaser at such sale. And as the defendant persisted in her intention of selling the farm upon the execution, notwithstanding the ■ remonstrances of the complainant, I think the objection to" the jurisdiction of this court could not have been sustained, even if it had been made in time, The jurisdiction of this court to set aside deeds and other legal instruments, which are a cloud upon the title to real estate, and to order them to" be delivered up and cancelled, appears to be now fully established. (See Ward v. Ward, 2 Hayw. Rep. 226; Leigh v. Everhart's Ex'rs, 4 Monro's Rep. 380 ; Hamilton v. Cummins, 1 John. Ch. Rep. 517; Apthorp v. Comstock, 2 Paige's Rep. 482; and Grover v. Hugell, 3 Russ. Ch. Rep. 432.) And if a court of chancery would have jurisdiction to set aside the sheriff’s deed which might be given on a sale, and to order the same to be delivered up and cancelled, as forming an irm proper cloud upon the complainant’s title to his farm, it seems to follow, as a necessary consequence, that the court may im terpose its aid to prevent such a shade from being cast upon the title, when the defendant evinces a fixed determination to proceed with the sale. It therefore becomes necessary that I should inquire, whether the present complainant presented a-case to the vice chancellor which entitled him to the interposition of the court to stay the sale, or to a decree declaring his farm discharged of the lien of the judgment.

The counsel for the defendant insists that the notice to the complainant of the existence of the judgment, and that it was still due at the time of his purchase, was sufficient to deprive him of the character of a bona fide purchaser, and to continue the lien as against him, although the ten years had expired at the time of his purchase. If such is to be considered the correct construction of the statute, limiting the lien of judgments to ten years as against purchasers in good faith and subsequent encumbrancers, there can be no doubt as to the correctness of the decision which is appealed from. For although the complainant has been so reckless of consequences, as to swear positively in his bill that he had no knowledge or notice of the existence of the Shepherd judgment, at the time he made the purchase of the farm, it is established by the testimony of four witnesses that he not only had actual notice of the existence of that judgment, but that he also knew that it was still due and unsatisfied. I concur, however, in the opinion incidentally expressed by Mr. Justice Sutherland, in delivering the opinion of the supreme court in the case of Little v. Haney, (9 Wend. Rep. 157,) that mere notice of the existence of a judgment, which is of more than ten years standing, will not render a purchase mala fide, within the intent and meaning of the statutory provision on this subject ; and that the legislature did not use the term bona fide purchaser in the ordinary sense in which it is used by courts of equity, in the statutory provision limiting the lien of judgments to ten years. A judgment is not a specific lien upon the lands of the defendant. It is merely a general lien, which gives the plaintiff no particular equitable claim upon the lands for the satisfaction of the debt, except so far as is necessary to prevent an unconscientious attempt on the part of the debt- or to deprive him of the benefit of his judgment. If the creditor, therefore, neglects to enforce his general lien against the defendant’s property for more than ten years, he has na equitable claim to a preference over subsequent encumbranfeis. In other words, he loses the benefit of his legal priority ; and having no better equity, the legal right of the subsequent encumbrancers will prevail, although they had notice of the existence of his judgment. Neither has the holder of the dormant judgment any particular equity, by reason of the' general lien, entitling him to special pzotection against a pur-' chaser of the real estate of the debtor, who purchases the same fairly and in good faith without any wish or intention' of depriving the owner of the judgment of the means of col-» lecting his debt. And where the debtor has other sufficient means of payment, or if he sells the land for the purpose of paying the debt, so far as the proceeds of the sale will go, or under circumstances which afford no reasonable grounds of suspicion to the purchaser that there is any intention on- the part of the debtor to deprive the creditor of the power of collecting his judgment out of his property, it is to be considered a purchase in good faith, within the meaning and intent of this statutory provision. But, on the other hand, if the purchaser colludes with the debtoi-, for the purpose of defrauding the creditor,- or if the purchaser, with full knowledge of the existence of the judgment, and that it is still unpaid,buys the land upon which it is a lien, under circumstances which ought to satisfy a reasonable mind that the necessary effect of such purchase will be to deprive the creditor of the-means of obtaining satisfaction of the debt and that the yen», dor intends to evade the collection of the judgment, he cannot be considered a purchaser in good faith, so as to defeat the judgment creditor’s lien upon the land, although he actually pays the full vaíue of the property.

It is conclusively established by the testimony in the pres^ ent case, notwithstanding the positive oath of the complain-ant to the contraiy, that the Shepherd judgment was frequently talked of between him and Parks, during the negotiation for the sale, as a valid and subsisting debt, and that sounsel was consulted as to the continuance of the lien of the judgment upon the farm. It also appeal's from the testimony that Parks was poor, that the farm was the principal, if not the only visible property which he had, and that he was preparing to leave the countzy. The negotiation for the-sale commenced some time before the ten years from the docketing of the judgment had elapsed; and the counsel who was consulted at that time as to' the lien, says his attention was particularly called to the Shepherd judgment as an existing debt, from the circumstance of his having previously received a letter from a third person, inquiring in what way that judg-ment could be avoided. And shortly after the expiration of the ten years, the parties again went to the office of Wood' and completed their bargain. It was at this time,- as I understand T. Wood’s testimony, that the complainant said he had agreed to take the land, and to save what he'could for Parks to leave the' country with. And it appears that Parks did move-to Upper Canada shortly afterwards, where he still resides. Prom the whole of the testimony in this case, I find it impossible to resist the conclusion at which I have arrived, that there was an intention on the part of J. Parks to avoid the payment of Shepherd’s judgment, and to' deprive him,- if possible, of the means of collecting it otit his property; and that the complainant was aware of such intention of Parks, and made his purchase of the farm iñ stich a manner as to aid him in carrying that intention into effect. That the complainant finding he could not safely purchase the property and pay for the same within the ten years, leaving Shepherd’s judgment unpaid, the negotiation was suspended until the expiration of that time, and the bargain was then com-pleted; when, as they supposed, Shepherd would be without remedy as against the land. If such was the fact, of which I have no doubt,-from the testimony-in the case, the complain-ant is not a bona fide purchaser of the premises, according to the intent and meaning of the statute, so as to discharge the lien of the judgment as to him. He will therefore be obliged to pay the' amount due on that judgment, and seek his remedy against Parks, either upon the covenants in his deed or otherwise.

In this view of the case, the decree of the vice chancellor was right; and it must be affirmed, with costs.


text:
    Van Cleef vs. Sickles.
    Where one of several judgment debtors is insolvent, and wholly destitute of property, it is not necessary to make him a party to a creditor’s bill to obtain satisfaction of the judgment out of the equitable interests or ehoses i« action of the other defendants; but the fact that he is thus destitute of property must be distinctly averred in the bill, or the defendants may demur for want of parties.
    AH tire judgment debtors may be made parties to a creditor’s bill, if any of them, or all of them collectively, have property exceeding $ 100 which could not be reached by the execution at law; and one of the defendants, who is entirely destitute of property, will not be entitled to costs, unless the complainants have unnecessarily compelled him to appear and answer»' instead of taking the bill as confessed against him.
    Where one of the defendants in the judgment was not served with process in the suit at law, it is proper to make him a party to a creditor’s bill against the other judgment debtors, for the purpose of enabling the other defendants to claim contribution against him for the satisfactioft of the complainant’s debt, if they should be compelled to pay the same.
    This was an appeal from a decretal order of a vice chancel-, lor, overruling the defendant’s demurrer on the record, and permitting the complainant to amend, after the allowance of a' demurrer ore tenus. The object of the suit was to obtain satisfaction of a judgment, recovered against the defendant Sickles and others, after the return of an execution unsatisfied. From the bill it appeared that the action at law was upon a' promissory note, drawn by William Moore and Alfred Moore, as copartners, and endorsed by Sickles, Smith and Fletcher, who were also copartners. The action was brought against the drawers and endorsers jointly, under the act of April, 1832; but A. Moore, one of the drawers, and B. Smith, one of the endorsers, were not served with process,. The judgment was in the usual form, against all the defendants. But upon the back of the execution there was an endorsement to the following effect; “ The process by which this action was commenced was not served on A. Moore, nor on B. Smith; therefore levy on the sole property of W. Moore, G. G. Sickles andT. G. Fletcher, and also on the personal property owned by W. Moore, as a partner with A. Moore, and also on the’ personal property of G. G. Sickles and T. G. Fletcher, owned1 by. them as copartners with, B. Smith.” The complainant,, after stating the return of the execution by the sheriff unsatisfied, and that the whole amount of the judgment still remained due, over and above all prior just claims of the defendant,by way of set off, or otherwise, and that the defendant Sickles had equitable interests, &c., to the value of $100 or more,. stated as a reason for not making W. Moore, A. Moore, B. Smith and T. G. Fletcher parties to the bill, that from the information he had received, and from the advice of his counsel thereon, be was fearful that if he 'made them parties he Would be compelled to pay them costs. The defendant demurred to the bill, for want of equity. And he also assigned as causes of demurrer,, that the other defendants in the judgment, and particularly the two who had been served' wlthprocess in the action at law, had not been made parties to-the suit in this court. The vice chancellor overruled the demurrer on the record. He sustained, however, certain objections as to the form of the bill, made ore lenus; but permitted the complainant to amendj without prejudice to the injunction.

      Ji. D. Logan, for the complainant..

      II. Brewster,, for the defendant,-
   The Chancellor.

The vice chancellor is right in supposing that it is not necessary to> make all the joint debtorsjagainst whom the judgment was obtained, parties defendants to a creditor’s bill, provided it distinctly appears in the bill that those- who are not joined in the suit are wholly insolvent and destitute of property. In such a-case it would be a useless expense to proceed against those who have nothing to contrib-ute, either to the satisfaction of the complainant’s demand, or to remunerate their, co-defendants, whose equitable interests- or choses in action might be' taken and applied- to the satisfaction of the joint debt. The result, however, of joining all the defendants in the judgment, as parties to' the bill in this sour-t, would not be such, as is supposed by the vice chancellor*./ To sustain the suit here, it is not necessary that each of the ■defendants should have property to the extent of $ 100. It is sufficient if all the joint debtors collectively have property, which is properly applicable to the satisfaction of the judgment, which exceeds, in the aggregate, the sum or value of $100. And even if one of the joint debtors should happen to be entirely destitute of property, it would afíbrd no sufficient ground for charging the complainant with his costs, unless in a case in which that particular defendant had been unnecessarily compelled to answer the bill. Where there are joint debtors, if any of them have property, which cannot be reached at law, sufficient to authorize the commencement of a suit here, the complainant has a right to make all the joint debtors parties, if he thinks proper to do so. And where he neglects to make them such parties, those who are proceeded against separately may demur for want of parties, unless a sufficient excuse is shown, by proper averments in the bill. Even in cases where one of the joint debtors has not been served with process in the suit at law, so that the complainant would not be authorized to proceed here for the purpose of reaching the separate propty of that joint debtor directly, it may notwithstanding be proper to make him a defendant in the bill; so that his co-defendants may claim contribution for the satisfaction of the complainant’s debt, if they should be compelled to pay the whole.

In this case the vice chancellor has certainly misapprehended the effect of the averment in the bill. The allegation of the complainant, that from the information he had obtained, and the advice of his counsel thereon, he was afraid he should have to pay costs if he made the other joint debtors defendants, is not equivalent to an allegation that those persons are wholly irresponsible and destitute of property. The information upon which the complainant’s fears were founded may have been of an entirely different character. If they are wholly destitute of property, the fact should be distinctly averred in the bill, either positively or upon the complainant’s information and belief, so that the adverse party may take issue thereon, if he thinks proper to do so, in his plea or answer. And when the complainant is not able to make such averment, and to sustain it, either by the answer of the defendant, or by the proofs in the cause, he should make the other joint debtors parties to the bill, if they are within the jurisdiction of the court.

It will be seen, in the present case, that the defendant was sued as one of the endorsers of a note, and that the two Moores, one of whom was served with process in the suit at law, were primarily liable, as the makers of such note. Sickles has a right, therefore, to insist that they shall be made parties, so that they may be charged with the payment of the whole debt, in the first instance, if they are not wholly irresponsible and destitute of property.

The decree of the vice chancellor Overruling the demurrer must therefore be reversed, with costs, and the demurrer must be allowed. But this is undoubtedly a case in which the complainant ought, to be permitted to amend his bill, upon payment of the costs of the demurrer. He is, therefore, to have thirty days to amend his bill, either by making the drawers of the note and the other endorsers thereof parties, or by inserting a distinct averment, that they are insolvent and wholly destitute of property or other means to pay the debt or any part thereof; and the other amendments which were authorized by the decretal order of the vice chancellor. If the amendments are not made within the time prescribed, the bill must be dismissed, with costs; but without prejudice to the right of the pomplainant to proceed de nova, .


author: The Chancellor

text:
    Daggett vs. Daggett.
    An a suit brought by the wife for a divorce, she cannot, previous to the decree dissolving the marriage, make any valid agreement, as to her allowance for alimony. And the court will not sanction any such agreement made by her, unless it satisfactorily appears that the allowance made in her favor for alimony is as much as she is fairly entitled to, under the circumstances of the case and from her husband’s situation as to property.
    This was a bill filed by the wife for a divorce, on the ground of adultery, and the same was taken as confessed. The bill showed that the wife was sick and destitute of property, and that the defendant owned a farm, and was possessed of considerable personal estate.
    The adultery of the defendant was clearly proved, and there was no doubt as to the right of the complainant to a decree for a divorce.
    The counsel for the complainant, upon the hearing of the cause ex parte, suggested that a satisfactory agreement had been made between the parties as to alimony, and that no decree for alimony would be asked.
   The Chancellor

said, that so long as the marriage contract remained in force, the wife was not legally competent to make a valid contract with her husband in relation to her right to alimony; and that such agreements made in advance, if sanctioned by the court without examination, would have a tendency to produce collusion between parties with a view to the dissolution of the marriage contract between them. That such agreements, therefore, if the parties wished them to receive the sanction of the court, must be shown to be perfectly fair and equitable in regard to the wife’s right to a support out of the estate of the adulterer, or must be made after the bond of matrimony had actually been dissolved, as to the wife, by a decree of the court. The usual decree in this case was therefore directed, granting a divorce to the wife, with costs; and with liberty to apply to the court for further directions as to alimony, or for a reference to a master, to ascertain and report what was a suitable allowance to be made to her for that purpose.


text:
    The Trustees of Watertown vs. Cowen & Bagg.
    The solicitor for the party in whose behalf a witness is examined, or cross-examined, is personally liable to the examiner for his fees, in taking the testimony of the witness for the benefit of his client.
    The testimony of the witness is completo, so far as the party calling him is concerned, when the direct examination is finished and signed by the witness ; but the party calling him is bound to keep the witness before the examiner a sufficient length of time afterwards to enable the adverse party to complete the cross-examination, or the deposition may be suppressed. The fees of the examiner upon the cross-examination of a witness, are chargeable to the solicitor of the party for whose benefit, or at whose request, such cross-examination "is taken ; and not to the solicitor of the party calling such witness.
    This was an appeal from the taxation of the vice chancellor of the fifth circuit, of an examiner’s bill, against the solicitor of the defendants. The solicitor resisted the taxation of the whole bill as against him, on the ground that he was not answerable to the examiner for his fees. He also objected that if he was bound to pay the examiner’s fees for services performed for him as solicitor, he was not liable for the cross-examination of the complainants’ witnesses. The vice chancellor decided both questions against the solicitor, on the tax-» ation; and from this decision of the taxing officer, the solicitor appealed to the chancellor.

      G. C. Sherman, the solicitor, in person.
    JY*. Rathbun, for the examiner.
   The Chancellor.

It appears to have been the uniform ■ practice in this state for the sheriffs, clerks, masters, registers, and other officers of the several courts of record, to charge their fees to the attorney or solicitor of the party for whose' benefit the services are performed; and there are no good-reasons for distinguishing the case of an examiner from that of any other officer of the court, in this respect. From the uniform practice on this subject, there is an implied" assumpsit by the attorney or solicitor, to pay for the services done for hie client in the cause, by his express or implied request. And where the solicitor for a party notices the taking of the testimony of witnesses before an examiner, or attends or procures the cross-examination of the witnesses of the adverse party, there is an implied assumpsit on the part of the solicitor to pay the fees of the examiner for taking such testimony on the behalf of the client. The vice chancellor was therefore right in taxing the whole bill against the solicitor for the defendants, unless the complainants’ solicitor was liable for the cross-examination, as well as for the direct examination, of the witnesses called on behalf of his client.

I cannot ascertain that there has been any uniform practice among the examiners in this state, upon the subject of charging for the cross-examination. Neither does it appear from' the reports that there has ever been a judicial decision of the question in any of our courts. Upon principle, however, the solicitor of the party for whose benefit the cross-examination of the witness is taken, appears to be the proper person to whom the fees of the examiner for that particular service should be charged. Where be pays such fees in the first instance, and his client recovers costs against the adverse party, he will be remunerated in that way, if the cross examination is not impertinent. And if the adverse party is not charged with costs, the solicitor must look to his client for a repayment of the examiner’s fees. It is very evident that under the English practice the party who filed cross-interrogatories for the cross-examination of his opponent’s witnesses was bound to pay the examiner’s fees for taking such cross-examination. The testimony is complete, so far as the party calling the witnesses is concerned, when their direct examination is finished and signed by them ; although the party calling the witnesses is bound to keep them before the examiner a sufficient length of time afterwards to enable the adverse party to complete the cross-examination, or the deposition may be suppressed.

The taxing officer was therefore correct in charging the defendants’ solicitor with the examiner’s fees for the cross-examination of the complainants’ witnesses; and the taxation, is affirmed.


text:
    Van Vechten and wife vs. Pearson and others.
    Where the testator devised an undivided portion of his real and personal es-’ tote to trustees, in trust to receive the rents, profits and income thereof, and' to appropriate the same to the use of his daughter for life, free from the control ofher husband, with remainder to her children in"fee; and' with a' limitation over to the testator’s two sons in case of the death of the daughter without leaving any child or children, or of the death of such child or children without lawful issue; Held, that the word or in the last limitation1 was to be construed and, so as to make the ultimate limitation over to the’ sons dependant upon an indefinite failure of issue ; and' that such limitation over was void. Held, also, that a child of the daughter, who was in esse at the death- of the testator, took a vested remainder in fee, which opened and let in- an after-Born child as a tenant in common in such re» mainder.
    This case came before the court upon a bill for the' partition of the real estate of Teunis T. Van Vechten, deceased,, and for a distribution of his personal estate and the settlement of the account of the surviving executor. The testator,. by his will, devised and bequeathed bis residuary estate, both real and personal, as follows: “ The one equal third part thereof to my son Teunis Van Vechten, his heirs and assigns; one-equal third part thereof to my son John Van Vechten, his heirs' and assigns; and the remaining third part to my beloved wife Elizabeth and my sons Teunis and John Van Veehten, and the-survivor and survivors of them, and their or his assigns, Intrust, nevertheless, that the rents; issues and profits, and the Use and enjoyment thereof, shall be applied and appropriated by the said trustees, or by the survivors or survivor of them;their or his assigns, to my daughter Judith, the wife of George Pearson, for and during her natural life, in such- manner as they, the said' trustees, or the survivors or survivor of them, their or his assigns, shall deem proper to secure the benefit theTeof to my said daughter, during her natural life, free from the control of her said husband'; and, upon this further trusty that, at the death of my said daughter, all the one third of my said real and personal estate so as aforesaid devised in trust for her benefit, and the rents, issues and profits thereof which remain unexpended, shall, by the said trustees, or the surviVors or survivor of them, their or his assigns, be applied to the use and benefit of the child or children of my said daughter, their heirs or assigns. But in case of the death of my said daughter, without leaving any child or children, or of the death of such child or children whithoui lawful issue, then the one third of the real and -personal estate so as aforesaid devised in trust, with the rents, issues and profits thereof which shall remain unexpended, shall vest in and be applied to the use, benefit and behoof of my aforesaid sons, their heirs and assigns, forever.” The questions which were presented for the consideration of the court, arose upon the devise in trust for the benefit of Judith Pearson and her children. The guardian ad litem of the infant heirs of John Van Vecbteti, one of the testator’s sons, insisting that the contingent limitation over of the ultimate remainder in the trust estate, to the sons, was valid ; and the only surviving child of Mrs. Pearson claiming the ultimate remainder in fee, on the death of the mother, as an absolute fee, and not a base or determinable estate or interest.

      John Davis, for the complainants.

      S. Stevens, for the daughter of Mrs. Pearson.

      J. B. La Forge, for the infant heirs of J. Van Vechters
   The Chancellor.

If the word or, in the danse of the will which limits a contingent remainder in fee to the two sons of the testator, is to be construed in its ordinary sense, disjunctively, it would give to them the ultimate remainder in the trust estate upon the death of Mrs. Pearson without leaving any children living at that time, although the deceased children should have issue then living. But it would undoubtedly be doing violence to the intention of the testator to suppose he meant to exclude the issue of Mrs. Pearson’s children, although the children themselves might all have died in the lifetime of their mother. The testator divided his estate into three equal portions, for his three children, and devised to each of the sons one third in fee. And although-he’ veste^ other third in the trustees, for the benefit of his daughter and her children, free from the control of her husband, there was no reason why the issue of Mrs. Pearson should be excluded from the inheritance after her death, although her immediate descendants might all happen to die in her lifetime. In giving a construction to a will it frequently happens that a word which has been erroneously used by the testator is taken by the court in the sense in which he meant to usé it, as his intent can be ascertained from the situation of his family or estate, when taken in connection with other parts of the will. And the word or in wills is constantly construed to mean and, where its use in a disjunctive sense would produce an effect which could not probably have been intended by the testator. (16 East’s Rep. 69. Ram’s Law of Wills, 55.) The last clause of the devise of the trust property must, in this case, to carry into effect the evident intent of the testator, be sd construed as to give the remainder to his two sons only in the event of Mrs. Pearson’s dying without leaving any child or children, and of the death of her children without lawful issue. They are, therefore, to take the ultimate remainder in the trust property only upon the-happening of the contingency of the total failure of the issue-of Mrs. Pearson and her children. And according to the decision of the court for the correction of errors,- in the recent case of Paterson v. Ellis and others, (11 Wendell, 259,) the failure of issue of the children must be construed to mean an- indefinite failure, as well in regard to the personal property devised to the trustees as to the real estate. The limitation over to the sons is therefore void, as being too remote.

Georgiana, the only child of Mrs. Pearson who was living at the death of the testator, took a vested remainder in fee in the trust property, subject to open and let in after-born children. And upon the birth of Anna, she took a vested remainder in one half of that which had previously vested in her sister, but subject also to open and let in others who might thereafter be born. By the death of Anna, xvithout issue, her sister became vested with all her interest in the real estate, as her only heir at law under the statute of descents then in. force. (1 R. L. of 1813, p. 53.) And if there were no broth<ers or sisters of the half blood, Anna’s interest in the personal ■property of the testator is to be distributed to her mother and lier sister Georgiana in equal proportions. So that the mother is now entitled to the whole beneficial interest in one half of the personal property devised in trust, (1 R. L. 314, § 16; 2 R. S. 96, § 75, sub. 6;) subject only to the contingency of her having other children who may come in for a share of the remainder which was vested in her deceased daughter Anna.

Decree accordingly.


text:
    Osborn vs. Taylor and others.
    The court will not granea preliminary injunction to stay the defendant from selling the complainant’s farm upon execution, where the bill alleges that the judgment is not a legal lien on the premises; as a notice of the pendency of the suit, filed in the clerk’s office, is all that is necessary to make ,any decree which may be obtained in the cause binding upon the purchaser under the execution.
    A preliminary injunction will not be granted, before answer, unless such injunction is necessary to protect some interest or right of the complainant which might be injuriously affected by the proceedings of the defendant in the mean time.
    This was an application for an injunction to restrain the defendants from selling the complainant’s farm, on an execution against T. M’Cantie. The bill alleged that the defendants recovered a judgment against M’Cantie in October, 1830, and that subsequently to such judgment he was discharged from all his debts, under the two-thirds act; that after his discharge, he purchased the farm in question, which the complainant had since bought from him and paid for; and that the defendants, claiming a lien upon the farm by virtue of their judgment, were proceeding to sell the same under an execution upon that judgment. The complainants asked to be permitted to give security, instead of paying the amount due on the judgment.

      E, F. Smith, for the complainant.
   The Chancellor.

This is not a proper case for a preliminary injunction, or to allow the complainant to give security instead of paying the money. If the allegations in the bill are true, the judgment is no lien upon the complainant’s farm, unless there was fraud in obtaining the discharge and the complainant has purchased with notice of the fraud. The sale under the execution, therefore, will not divest any legal or equitable bona fide interest which the complainant has in the land. The only possible injury which he can sustain by a sale under the execution will be, to have a cloud cast upon his title. But a preliminary injunction is not necessary to prevent that effect of the sale; for the commencement of this suit, and the filing of a notice of the lis pendens in the clerk’s office of the county where the land lies, will enable the complainant to obtain á decree at the final hearing, declaring that the judgment was not a lien upon the farm, and that the sale under the execution was void. This will effectually remove any cloud which may be cast upon the title by such sale. A preliminary injunction should not be granted, before answer, unless it is necessary to protect some interest or right of the complainant, which may be injured, impaired, or endangered, by the proceedings of the defendant in the mean time, as it frequently turns out, when the answer comes in, or at the hearing, that the sole object of obtaining the preliminary injunction was, to embarrass the defendant’s proceedings, and thus compel a compromise.

Injunction denied.


text:
    Randolph vs. Dickerson and others.
    Where a complainant files a bill to set aside a conveyance made by him, on the ground of fraud in obtaining it, if the suit abates by the death of the complainant, and the wife of the defendant is one of the heirs at Jaw, the other heirs may file a bill of revivor against the wife and her husband, without alleging therein that she refused to join with the other heirs in a bill of revivor against the husband.
    Where supplemental matter is improperly inserted in a bill of revivor and supplement, it does not authorize the defendant to demur to the whole bill. He should demur to the supplemental matter only.
    A wife cannot be joined as a complainant in a bill against her husband with» out her consent, although the duit is prosecuted in her name by her next friend.
    This was an appeal from an order of the vice chancellor of the seventh circuit, allowing a demurrer to a bill of revivor and supplement. The original bill was filed to set aside a transfer of the complainant’s real estate, on the ground of fraud. The complainant died, leaving six children, his heirs at law, one of which children was the wife of a defendant in the original suit. The other five heirs filed a bill of revivor and supplement; to which bill they made the other heir a party defendant, with her husband and the other defendants in the original bill. The original defendants demurred, on the ground that she should have been made a party complainant, and that the supplemental matter of the bill was improper.
    The vice chancellor allowed the demurrer, and dismissed the bill.
    .3. Gibbs, for the complainant.

      E. Sanford, for the defendants.
   The Chancellor

said, that as one of the heirs was the wife of a defendant in the original bill, that circumstance alone was a sufficient reason for not joining her as a party complainant in the bill of revivor against her husband; that she could not join in a suit against him, except by her proehein ami; and even then the suit could not be brought in her name, without her consent; that, under the circumstances, it was not necessary to aver that she refused to join with the other heirs at law in the bill of revivor; and that if supplemental matter was improperly added to the bill, it furnished no reason for demurring to the whole bill, but the defendants should have demurred to the supplemental matter only.

The decree of the vice chancellor was therefore reversed, with costs; and the suit was directed to stand revived.


text:
    Woodworth vs. Campbell and others.
    Where lands leased for a term of years, are owned by several persons as tenants in common both of the rents and of the reversion, a bill for partition may be sustained; but a sale of the lands, under the decree in partition, must be made subject to the rights of the lessees, who, by the sale, will become the tenants to the purchaser of the rents and reversion.
    This was a bill for partition ; and the only question which arose was, whether the interests of the parties were such that a partition could now be made. The whole premises were leased to different persons for ten years, reserving rent; and the complainant was the owner of an undivided share of the rent and reversion.

      Murray Hoffman, for the complainant.

      L. H. Palmer, for the infant defendants.
   The Chancellor

decided, that as the parties had a present interest in the rents as tenants in common and were also the owners of the reversion in common, they had a present portable interest in the premises, which would authorize the court to decree a sale in the present suit; but as the lessees were not tenants in common with any of the owners of the rents, or of the reversion, their interests could not be sold; that the sale must be made subject to the rights of such Iessees during the term for which the premises were leased; and that the lessees would thereby become the tenants to the purchaser of the rents and reversion.

Decree accordingly.


text:
    Morton vs. Ludlow & Western.
    Where debenture certificates are given for goods bonded and subsequently exported, if the bond given for the duties is not paid, and a suit is subsequently brought thereon, the debenture certificates should be applied in part payment, as of the time when the bond fell due, so that interest shall not be charged upon any greater sum than the balance remaining due upon the bond, after deducting the amount of the certificate.
    Where the receipt and payment of money is to take place at the same time and between the same parties, and the payment is to be made oút of the fund which is to be so received, one sum should be allowed to compensate the other, without an actual receipt and payment.
    This case came before the chancellor on an appeal brought by the district attorney of the U. States, from a decision of the vice chancellor of the first circuit. The United States having a lien upon the lands of which a partition was sought in this case, by consent of the district attorney the premises were sold, discharged of the lien, and a portion of the proceeds were deposited with the assistant register, subject to the equitable claims of the United States thereon. The only question, upon the appeal, was whether debenture certificates given for goods bonded and subsequently exported, should be applied aS the time the bonds became due, so as to stop the interest upon the bonds pro tanto. (See 1 Edward’s Rep. 639, S. C.)

      J. Jl. Dunlap, for the United States.

      William Kent, for H. M. Western.
   The Chancellor.

If the bond given for duties is paid when it falls due, the holder of a debenture certificate upon the exportation of the goods for which the bond was given has no claim for interest thereon if he neglects to present it to the collector, so that it may be paid out of the proceeds of the bond, or that it may be allowed in payment. But where the bond remains unpaid in consequence of the neglect of the holder of the debenture certificate to surrender up the same and pay the balance due upon the bond, the principles of equity require that the United States should only receive and retain the interest on the balance which was justly due on the bond, after deducting the debenture certificates which had been given for the same goods and was payable at the same time as the bond. Where the receipt and payment of money is to take place at the same time and between the same parties, and the payment is to be made out of the fund received, one sum should be allowed to compensate the other as far as it goes, The party who is to receive and pay, has no equitable right to insist that the money shall be actually paid to him in the first instance, but one demand should, in that case, he permitted to compensate the other. This was the rule of the civil law, and it is also the rule of equity and common sense. And as the representative of the government consented that Western might show any equitable defence to the judgment on the bonds or any part of it, the vice chancellor was right in allowing the debenture certificates to be applied at the time the bonds fell due, so as to stop the interest on the bonds, pro tanto.

Decretal order affirmed.


text:
    Devoe vs. The Ithaca and Owego Rail Road Co.
    The court will not grant a sequestration, or appoint a receiver of a corporatian, against whom an execution has been returned unsatisfied, upon ati ex parte application of the judgment creditor. But upon filing a petition duly verified, an order to show cause, at a future day, why the prayer of the petitioner should not be granted, may be entered; and an injunction will be allowed, restraining the officers of the company from selling, assigning, transferring or encumbering the property or effects of the corporation, in the mean time.
    This was an application by a judgment creditor of a cor» potation, under the thirty-sixth section.of the article of the revised statutes relative to proceedings against corporations in equity, (2 R. S. 463,) for a sequestration of the stock and effects of the corporation, and for an injunction and receiver,

      S. Stevens, for the petitioner.
   The Chancellor

decided that a sequestration ought not to be granted, or a receiver appointed ex parte, and without giving the corporation an opportunity to be heard. But upon filing of the petition, duly verified, showing the recovery of a-judgment against the corporation, and that the execution issu-' ed thereon to the proper county had been returned by the sheriff unsatisfied, the court directed an order to show cause, at a future day, why the prayer of the petition should not be granted; and that a copy of the petition and order should be served upon the proper officers of the corporation the usual time before the day appointed for showing cause. And that in the mean time the officers of the company be restrained,by injunction, from selling, assigning, transferring,- or encumbering the property or effects of the corporation.


text:
    Hawley and others vs. Wolverton.
    In determining whether an allegation or statement in a hill is relevant osr pertinent, the bill must not only be regarded as a pleading to bring before’ the court and put in issue the material allegations and" charges upon" which the complainant’s right to relief rests, but also as an examination of the defendant for the purpose of obtaining evidence to establish the complainant’s case, or to counter-prove or destroy the defence which the defendant may attempt to set up.
    The complainant, in his bill, may state any matter of evidence, or any Collateral facts, the admission of which, by the defendant in his answer, may be material in establishing the allegations of the bill as a pleading; or to ascertain the nature, extent, and kind of relief to which the complainant is entitled ; or which may legally influence the court in determining the question of costs.
    In determining the question, whether trees appertaining to a dwelling house are ornamental trees, so as to make it waste in a tenant to cut them downj it is important to ascertain the fact whether they have been considered1 and treated as ornamental trees by the former owners and1 preprietozs of the premises.
    A few unnecessary words in a bill or answer do not render the pleading-impertinent. And the master should not allow an exception on account of a few unnecessary word's, except where they will lead to the introduction of improper evidence, by putting in issue matters which are foreign to the cause; or where such, words may embarrass the defendant in answering . the complainant’s bill..
    This case came Before the court upon exceptions to a mas*ter’s report on exceptions to the complainants’ bill for impertinence. The bill was filed to restrain' the commission of waste, upon premises which had been leased to the defendí ant, by the complainants, for a short term of years.. And a part of the waste complained of was in cutting down certain growing trees upon the premises, which had" Been devised to the complainants by William James, in trust; and" which trees, as they alleged, had been preserved' By the testator as appurtenant to the mansion house on the premises, for shade*- and ornament. The defendant filed-twelve exceptions to the? Bill for impertinence, all of which were allowed by the master, except the fifth. And the complainants excepted ta the report as to the allowance of each exception..

      7. King, for the complainants.

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

In examining the question, whether .an allegation or statement in the bill is relevant or pertinent, it must be recollected that a bill in chancery is not only a pleading, for the purpose of bringing before the court and putting in issue the material allegations and charges upon which the complainant’s right to relief rests, as in a declaration in a suit at law, but it is also, in most cases, an examination of the defendant upon oath, for the purpose of obtaining evidence to establish the complainant’s case, or to counter-prove or destroy the defence which may be set up by such defendant, in his answer. (Mechanics’ Bank v. Levy, 3 Paige’s Rep. 606.) The complainant may therefore state any matter of evidence in the bill, or any collateral fact, the admission of which, by the defendant, may be material in establishing the general allegations of the bill as a pleading, or in ascertaining or determining the nature and extent, or the kind of relief to which the complainant may be entitled, consistently with the case made by the bill; or which may legally influence the court in determining the question of costs. And where any allegation or statement contained in the bill may thus affect the decision of the cause, if admitted by the defendant or established by proof, it is relevant, and cannot be excepted to as impertinent.

The. defendant, by his four first exceptions, seeks to expunge from the bill the fact of the making of the will of Mr. James, by which the premises upon which the alleged waste was committed were devised to the complainants, as executors and trustees, the death of the testator, the probate of his will made by the complainants, and the assumption by them of the trust, by which they become jointly vested with the legal estate in the premises. Looking to the nature and extent of the relief sought in this case, and to which the Complainants may be entitled if the several allegations in their bill are proved or admitted, all of these facts are relevant, and may have a material effect upon the decision of the cause. The taking of a lease from them, by the defendant, is at most but an admission of their title for the short term of years for which that lease was given. But the owners of a short term of years, in land, although they may have the right to file a bill to prevent the commission of future waste, might not be the proper persons to claim compensation for that which has already been committed. These allegations in the bill, therefore, are material, for the purpose of showing the origin, nature and extent of the complainants’ interest in the premises. And the first four exceptions should have been disallowed by the master.

The matters of the sixth, seventh, eighth and ninth exceptions are material, to show that the trees cut down were appurtenant to the mansion house, erected by the testator on the premises for a country seat or summer residence, as shade or ornamental trees, and to show the location thereof in reference to the dwelling house and public road, and to counter-prove the defendant’s pretence, that the trees were cut down by him for fencing, or to prevent their furnishing , a harbor for vagrants. Those exceptions should therefore have been disallowed.

By the tenth exception, the defendant seeks to expunge from the bill the allegation that the trees in question were considered and treated by the testator, in his lifetime, as very ornamental, and as of great value as a matter of taste. The question, as to what is and what is not ornamental timber, is a mere question of taste. It may be very material, therefore, in determining the question, to ascertain whether it has been considered and treated as ornamental by the former owners and proprietors of the premises. This exception should, for this reason, have been overruled.

The matter of the eleventh exception shows that the waste in cutting down the trees was a wilful and intentional injury to the property of the lessors, after the defendant knew from one of them that the preservation of the trees was deemed of great importance, by an offer of a largo reward for the detection of any person who should attempt to cut any of them down. And this fact, if established, may also have a very material influence on the decision of the court upon the question of costs.

The twelfth exception seeks to expunge from the bill the separate allegation of one of the complainants, that if the premises were owned by him in his own right, he would not have been willing to have the trees cut if $500 had been offered to him as a compensation for the same. This allegation is one which, from its very nature, cannot be put in issue and proved; and to which the defendant cannot give an answer which will be of any benefit to the complainants. A few unnecessary words in a bill or answer, does not render it impertinent. (Del Pont v. De Tastet, Turn. & Russ. Rep. 486.) And the master should not allow the exception, in such a case, unless the irrelevant passage would tend to the introduction of improper evidence, by putting facts in issue which are foreign to the cause, or where the irrelevant matter might embarrass the defendant in answering the bill. In the present case, the matter of the twelfth exception is objectionable on the latter ground. The exception was, for that reason, properly allowed. And the impertinent matter must be expunged by the register.

The ten first exceptions to the master’s report are allowed, and the last is disallowed. The eleventh exception to the report forms an offset to one of those which are allowed, and the defendant must pay to the solicitor of the complainants the costs of the other nine; that is, nine elevenths of his costs on the exceptions to the report; and deducting therefrom the defendant’s costs for the twelfth exception to the bill, which h finally allowed, as directed by the 63d rule.


author: The Chancellor,

text:
    Hoffman vs. Skinner and others.
    The adverse party is entitled to notice of taxation of costs, for the same length of time before the day appointed for taxation, as is required for the .service of a master’s summons by the 100th rule of the court; and a taxation of the costs without such notice is irregular, and may be set aside.
    Where the solicitors reside in the same city or town, two day’s notice of the •taxation of costs must be given.
    Costs not allowed upon setting aside a proceeding for a mere technical irregularity, and where the practice of court on the subject was unsettled.
    This was an application for the retaxation of a bill of costs, which the defendants were directed to pay to the complainant’s solicitor. The costs were taxed in the city of New-York, where the solicitors for both parties resided, before the vice chancellor of the first circuit, upon a notice of one day only. At the time of the service of the notice of taxation, the defendants’ solicitor objected to the notice as irregular, and did not attend before the vice chancellor on the taxation, in consequence of which the costs were taxed ex parte.

      H. M. Western, for the complainant.

      W. Silliman, for the defendants,
   The Chancellor,

As the costs were taxed ex parte, and without objection, I cannot, on this application, review the decision of the taxing officer as to any of the items allowed. The only question, therefore, which is proper for consideration here, is as to the regularity of the notice of the taxation. The counsel for the defendant supposes that the 89th rule is applicable to this case; and that a notice of four days should have been given. That rule, however, only applies to notices of hearing, or of special motions or petitions to be made or presented to the court, and is not applicable to the case now under consideration. The proceedings as to the taxation of costs, in this court, do not correspond with the English practice; as no warrant is taken out to attend the vice chancellor or master on the taxation, and the original taxed bill is filed as a substitute for the report of the amount at which the costs are taxed. And the decision of the taxing officer is reviewed upon an application to the court, on motion, and upon a specification of the items as- to which the decision: is supposed to be erroneous, instead of a petition for leave to except, which is the correct mode of proceeding accord-^ ing to the English practice. (Pitt v. Macreth, 3 Bro. C. C. 321. Fenton v. Cricket, 3 Mad. Rep. 496.) The proceeding here for the taxation of costs is, however, so far in the nature' of a reference to the taxing officer for that purpose, that the' notice of taxation, which by the practice of this court is the substitute for the master’s summons or warrant, must beserved the same length of time before the taxation, as is re^ quired for the service of the summons upon an ordinary reference. Under the former rules of this court, the master, upon a reference, was to assign a day for the hearing of the parties, not less than four days thereafter; and I believe the uniform practice, in accordance with that rule, was, previous to 1830, to give four days notice to the adverse party to attend before the master upon the taxation of costs. What the practice has been since that time, I am not informed-; but now it should unquestionably be in conformity to the-time, as limited by the present 100th rule. So that if the solicitor of the party, against whom the costs are to be taxed, resides in the same city or town where the taxation is to take place, he must have at least two days notice of the taxation, and not less than four if he resides elsewhere, within fifty miles; and not less than two days in addition for every fifty miles from his residence to the place of taxation.-

The taxation in this case, upon a notice of one day only, was irregular, and must be set aside. And the bill of costs must be retaxed, upon a notice of at least two days. But as this was an unsettled question, and the irregularity complained of was merely technical, no costs are to be allowed to either party on this motion. (See Kane v. Van Vranken and wife, 5 Paige’s Rep. 62; and Seeber v. Hess, Idem, 85.)


text:
    Vroom vs. Ditmas and others.
    Where the complainant died after the entry of an appeal from the decision of a vice chancellor, and after the causa was ready for a hearing on the appeal, but the fact of his death being unknown to the counsel, the cause was afterwards heard and decided by the chancellor upon the appeal; Held, that the decree upon the appeal might be entered nunc pro tune, as of a-day previous to the death of the complainant, and after the entering of the appeal.
    The appellate court ought not to proceed to the hearing of a cause upon appeal, after the fact of the death of ono of the parties is known, until the suit is revived, unless it is heard with the consent of those who have succeeded to the rights of the deceased party.
    This was an application for leave to enter the decree in this cause, made by the chancellor upon an appeal from a vice chancellor, nunc pro tune, as of a day previous to the' death of the complainant. The complainant died pending the appeal, and previous to the argument of the cause before the chancellor. But that fact being unknown to the counsel of the respective parties, the cause was argued and decided as if the appellant was still living. The object of entering the decree nunc pro tune, was to enable the representatives of the complainant to file a bill of revivor and supplement, to revive the suit; and to set aside a release, which, it was alleged, liad been improperly obtained from the widow, who had taken out letters of administration on the complainant’s estate in New-Jersey,

      Gibbs, for the complainant,

      M. Sandford, for the defendants'.
   The Chancellor.

The cause is not in a situation to discuss the question of the fairness of obtaining the release from the administratrix in New-Jersey. The suit is abated, and the parties who are interested in that question are not now before the court, so as to be bound by any decision made thereon. When the personal representative of Vroom applies to revive the suit to carry into' effect the decree,' it will be a good answer to the application that the complainant in the bill of revivor has no longer any interest in the subject of the litigation, unless such representative can, by supplemental matter, show that the release by the administratrix in New-Jersey was not legally or equitably binding upon the estate of the decedent. The only matter now to be discussed is, whether a decree could be entered at all, so as to authorize the revival of the suit thereon, even if no release had been given.

This court has frequently ordered a decree or order, to be entered nunc pro tune, where the cause has abated by the death of a party after argument, and before the decision of the chancellor thereon ; and such must now be considered as the settled practice of the court. I am not aware that a case like the present has occurred before in this state, except in Rogers v. Paterson, in the court of errors, where the cause was argued and decided after the death of one of the parties, and the cause was remitted to this court before the death of ouch party was known. In that case, I considered it the duty of this court to carry into effect the decree of the court of dernier resoit, although it was not entered as of a day previous to the death of the party ¡ and that the suit must be revived and proceeded in here in the same manner as if the party had died subsequent to the making of that decree. (4 Paige's R. 409.) Where the cause, upon an appeal, has abated by the death of a party after the appeal was in readiness for hearing, and the same has been fully argued by counsel, and examined and decided by the court, I cannot see any objection, in principle, to entering the decree nunc pro tune in such a case, any more than in a case where the death has occurred between the argument and the decision.' But the appellate court ought not to proceed to the hearing of a cause, after the courtis aware that the nominal party on record is no longer in existence, unless with the consent of the counsel for those who have succeeded to his rights. The decision of the supreme court of the United States, in the ease of The Bank of the United States v. Weisiger, (3 Peters’ Rep. 481,) furnishes a precedent for the order asked for in the case now under consideration, and is directly in point; which decision I am inclined to follow in this case, though it is going one step further than this court has yet gone. In that case, the respondent died a few days before the argument, but his death was not known to ^ com.^ or coimsej} aritil after the appeal liad been argued and decided against him. And then the court, upon a suggestion of the fact, and after hearing the objection of the counsel who had argued the cause for the decedent, ordered the decree to be entered as of the first day of the term, which was previous to his death.

The decree upon the appeal must therefore be entered is the name of Ditmas, as of a day previous to his death, and subsequent to the perfecting of the appeal. But it must be without prejudice to any right acquired by the respondent, under the settlement with the widow or administratrix in New-Jersey, to resist the revival of the suit in the name of the personal representatives of the decedent, or otherwise; or to the right of the defendants, or any of them, to appeal from that decree within the usual time after it is actually entered,, in the same manner as if the complainant was living at the time of entering the decree in the register’s office, and should die afterwards.


text:
    M’Laren vs. Charrier.
    A supplemental bill, or an original bill in the nature of a supplemental bill, is but a continuation of the original suit, so far as regards the right of a master who has been solicitor or counsel in the original suit to act as master in any proceedings on the supplemental bill.
    Where a master or any other judicial officer of the court of chancery has, in the character of a solicitor or counsellor, given advice or prepared any pleadings or proceedings in a cause or matter pending in or brought before the court, or has made or opposed motions or petitions in such cause or matter, or where his law partner has been thus employed or consulted, although not the solicitor or counsel on record, such master or judicial officer cannot afterwards act, as master, or do any judicial act, requiring the exercise of judgment or discretion, which is in any way connected with such 'cause or matter. But the restrictions of the revised statutes do not extend to a master who has acted merely as chancery agent of the solicitor in the cause, in the receipt and service of papers; nor do they prevent a master, who is not the solicitor or counsel on record, from taking an affidavit, or doing any other mere ministerial act.

      The approval of an appeal bond is an act requirmg-the exercise of judgment and discretion on the part of the approving officer; and a master who has acted as solicitor or counsel in the cause or matter in which the appeal is taken, or whose law partner has thus acted, cannot regularly approve such bond.
    On an appeal to the chancellor, from the decision of a vice chancellor, the appellant may prosecute his appeal by a new solicitor, without any order of the court below to change the solicitor ; and where such new solicitor is employed on the appeal, the service of papers in the appeal cause while it is pending before the chancellor need not be made on the solicitor on record in the original cause before the vice chancellor.
    Whether the complainant can file a-supplemental bill, or an original bill in the nature of a supplemental suit, by a new solicitor, without an order.to change the former solicitor on record ? Qumre.

    This was an application to dismiss an appeal, from an interlocutor}' order of the vice chancellor of the fourth circuit, for irregularity. From the affidavits and other papers read upon the motion, it appeared that the parties resided at Saratoga Springs, and that the original bill was filed by a solicitor residing in the city of New-Yorkthat the injunction master of the fourth circuit was the chancery agent of such solicitor, and had on several occasions appeared for him, at his request, upon the argument of motions before the vice chancellor; that such master, and his law partner, had also assisted in drawing and preparing papers to be used in the cause at the like request of the complainant’s solicitor, and sometimes at the request of the complainant himself; but that all such proceedings .were in the name of the solicitor on record. The complainant afterwards presented a petition to the vice chancellor, by a new solicitor, and obtained an order for leave to file a supplemental bill, for the purpose of obtaining a renewal of the injunction which had been dissolved upon the coming in of the defendant’s answer to the original bill. Such supplemental bill having been filed, and an injunction issued thereon, the vice chancellor afterwards made an order to set aside the petition and all subsequent proceedings for irregularity. From this order the complainant appealed. And the principal irregularity complained of which was not fully denied, was, that the appeal bond was approved of by such injunction master, contrary to the provisions of the eighth sec-lion of the title of the revised states relative to judicial officers, (1 R. s. m.)

      J. Ellsworth, for the complainant

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

The last bill in this case, whether considered as an original bill, or as a mere bill of supplement for the purpose of bringing new matters which have arisen since the filing of the original bill before the court, or as an original bill in the nature of a supplementary suit, is but a continuation of the proceedings originally commenced, so far as regards the right of the master to approve of the appeal bond. Whether the complainant is obliged to employ his former solicitor in filing a supplemental bill, or whether the presenting a petition in the name of a new solicitor, and filing a bill and obtaining special orders thereon in the name of such new solicitor, is not a substantial change of the solicitor of the complainant upon the records of the court, are questions which will be more properly considered upon the appeal itself, the decision of which is not necessary or proper upon this application.

It is supposed by the counsel for the complainant, and the master undoubtedly acted upon this supposition, that the restriction in the statute only extends to a master who has been regularly retained by a party as his solicitor or counsel, in the same cause in which he is called upon to act as master. If the master was called upon to do a mere ministerial act in which no exercise of judgment or discretion was required, as in taking an affidavit, or swearing a party as to the truth of a bill, petition, or answer, there would be much good sense in confining this restriction upon the power of the master to the letter of the statute. And such was the decision of this court in another case which was formerly before me. (The People v. Spalding, 2 Paige’s Rep. 326.) But in the approval of an appeal bond, the exercise both of judgment and discretion is required on the part of the officer. Although a neglect to pursue the course suggested by the chancellor, in the case of Van Wezel v. Van Wezel, (3 Paige’s Rep. 39,) might not render the appeal bond absolutely void, if the requisitions of the statute appeared to have been substantially complied with, the rules there laid down were intended as a general direction to the officer who is called upon to approve an appeal bond, or any other bond in which by law, or the rules of this court, the sureties are to be approved of by one of its officers. In eases of this kind, the provision of the revised statutes, which prohibits any judge, commissioner, or other judicial officer, from demanding or receiving any fees or other compensation for giving his advice in any matter or thing pending before him3 or which he has reason to believe will be brought before him for decision, or for drafting or preparing any papers or other proceedings relating to any such matter or thing, except where fees are allowed to him as such judge or officer for such services, is applicable. (2 R. S. 275, § 6. Laws of 1830, 895, § 38.) And where a master, or any other judicial officer of this court, has been called upon in his official character of solicitor or counsellor to give advice, or to prepare any papers or proceedings in a cause or matter pending or to be brought before the court, or where his law partner has been thus consulted or employed, although neither of them is the solicitor or counsel on record in the suit, nor has been regularly retained as such, he ought not afterwards to do any judicial or other act as master, &c., which requires the exercise of judgment or discretion, and which is in any way connected with the cause or matter in which he or his partner had previously been employed in a different character. This restriction will not prevent a master who has merely acted as the chancery agent of the solicitor in the cause, in the receipt or service of papers, from acting as master in the same cause or matter. But if the agent, or his law partner, makes or opposes motions for the solicitor, or acts for him in drawing or preparing papers in the cause, he is not at liberty afterwards to act as master in such cause, or in any proceeding connected therewith.

The case now under consideration comes within this restriction ; although nothing improper was intended, and the master has merely mistaken the law in supposing he was authorised to approve the appeal bond after the two responsible sureties therein had justified before him. The appeal must, therefore, be dismissed, with the costs of this motion ; unless the appellant elects to amend, by filing a nexv appeal bond nunc pro tune, or by procuring the present appeal bond to be regularly approved by the proper officer. (See Eldridge v. Howell, 4 Paige’s Rep. 457.) If the appellant elects to amend, he must pay the costs of this motion, and procure the amendment to be made, and notice thereof to be given to the solicitor of the adverse party, within fifteen days after the service of a copy of the taxed bill of costs on the appellant, or his solicitor in the appeal. There can be no doubt as to the right of the appellant to retain a new solicitor to prosecute an appeal from the decision of a vice chancellor. The service of a copy of the papers on this motion upon Mr. M’Donald, the solicitor in the original bill, was therefore an unnecessary and useless proceeding ; and the extra costs occasioned thereby are not to be allowed on taxation. (See 4 Paige’s Rep. 120; 5 Idem, 61.)