author: The Chancellor,

text:
    Quick vs. Stuyvesant.
    Where one person conveyed land to-.another for the purpose of opening á street in the city of New-York, and there was no other consideration for the conveyance but the benefit which the grantor was to derive from the - opening of the street, and by subsequent events beyond the control of both parties the street could not be opened a re-conveyance of the land was decreed."
    If a deed or pbligation is sought to be enforced in an event • not forseen or provided for by the parties, and Contrary to the original intention, a court of equity will interfere to prevent such injustice.
    In'such a case the court of chancery will direct that to be dope which the parties would themselves have directed had they forseen the event. Wherefrom any defect of the common law, want of foresight of. the parties, or other mistake or accident, there would be a failure of justice, it is the duty of a court of equity to’ supply the-defect or fumish the remedy.
    But these principles, when acted on by the court of chancery, are subject to such limitations and restrictions aré. necessary to protect -the rights of bona fide purchasers and others who have superior equities.
    In 1797# J. Quick owned a ¿trip of land in' the city of New-York, on the east side of the -Bowery Lane, about-4'00 feet" in length on the Bowery, and extending back 66 feet at the north'end and 120 feet- at the sputh. ' P. Stuyvesant, the father of the defendant, owned the Bowery farm, lying north and east of ‘ Quick’s land, and extending back to the East River. In order to lay. out this farm into city lots, by streets running through it in different directions, Stuyvesant made an arrangement with Quick, by which the latter consented to have Quick-street run through the middle of his lot and the" Bowery farm, from the Bowery Lane to the East River, .and to have Rensselaer-street run parallel therewith, taking a small part of the south end of Quick’s lot.' Quick was to have two small pieces of the Bowery farm on Quick-street in rear of his lot, and was to give Stuyvesant a small piece of his lot at the north end fronting on the Bowery Lane, and another small piece in the rear of the south end, bounded southerly by Rensselaer-street. By this arrangement Quick would have three corner lots on the Bowery Lane and on Quick and Van Rensselaer-streets, and would obtain a lot in the rear of his land, fronting on Quick-street, ih lieu of the land Which was to be taken for the streets, and that which Was relinquished to Stuyvesant at the north end. For the purpose of carrying ■ this arrangement into-effect, a diagram was made showing the location of the contemplated streets, and dividing the whole land into building lots, which were marked and numbered on the map. Quick then conveyed the whole óf his land to Stuyvesant, and the latter immediately re-conveyed to him the -several lots which were intended'to be retained by him,- and also the additional lot in the rear, fronting On Quick-street. In 1805, P. Stuyvesant died, ánd by his will he devised the property in question and the whole of the Bowery farm to the defendant in fee. Before the streets were opened, the act of the 3d of April, 1807, (sess. 30, ch. 115,) was passed, which prevented their being opened as contemplated by,the parties. Under this act the commissioners laid out the third avenue, which left the Bowery a little south Of Quick-street, and took off about one half of the three lots of -Quick north of that street. The commissioners also laid out Fifth-street, which leaves the Bowery Lane precisely where Quick-street did, but running in a more southerly direction to the East River, takes off about one half of' the two lots fronting on the Bowery south of Quick-street, and about two thirds of the lot immediately in, rear thereof. They also laid out Fourth-street, which commenced at that part of the Bowery where Rensselaer-street did, and runs parallel with Fifth-street.
    In 1815 J. Quick died intestate; leaving the complainant a'nd his brothers, William and Abraham Quick, his heirs at law. In 1816 the three brothers made partition between themselves of the lands of their father; in which, parti-, tion all the land north of Fifth-street was . conveyed to William, the middle part south of Fifth-street was conveyed to the complainánt, and the southerly part to Abraham, including the land which was originally intended to be covered by Rensselaer-street. In 1826 Abraham conveyed his share to the complainant. In 1824 the defendant and the heirs of William Quick compromised as to the claim made' of the land originally intended for Quick-street which is not included in Fifth-street; and mutual releases were executed in pursuance of that arrangement. In 1827 Fourth-street was opened, and the same year the complainant erected a dwelling house at the corner of Fourth-street and the Bowery, upon land formerly owned by J. Quick, part of which was the land originally intended for Rensselaerstreet. While the complainant was erecting his house, the defendant forbid his building on that part of the land which was originally intended to be included in Rensselear-street, and finally commenced an ejectment suit to recover possession thereof. The complainant thereupon filed his bill in this cause for an injunction, and to obtain a re-conveyance of that part of the premises. The cause was submitted on pleadings and proofs.
    . J. Platt, for the complainant.
    From the facts in this case it appears, that Peter Stuyvesart and Jacobus Quick made an agreement and adopted a plan for laying out streets in a particular manner which suited; their interest: and that the government then interposed and broke up their arrangement, and prohibited forever the streets which they had so designed and agreed on. The agreement was in fieri, when the h&nd of government was laid upon it. By that act of the government, and not by any act or default of his own, Quick lost the benefit of the contemplated streets ; and it is contended on the part of the complainant, that equity requires a reconveyance of the ground which was conveyed to Petrus Stuyvesant, for a consideration which has failed. '
    Agreements not fraudulent “ will be relieved against on the ground of inequality, an imposed burden or hardship on one party to a contract, which is considered a distinct head of equity, being looked upon as an offence against morality and as unconscientious.” (2 Powell on Con. 145, 146.) In this case there was no fraud imputable to Mr. Stuyvesant ; but it was evidently* an unequal bargain according to the legal rights of the parties ; and the defendant now makes an unconscientious use of it, in an event not contemplated by the contracting parties. “In every well constituted government there is somewhere lodged a power of supplying that which is derective, and controlling that which is unintentionally, harsh in the application of any general rule to a particular case.” (1 Fonbl. Eq. 6, note c.) “ Where there would be a failure of justice by the rules of conscience, equity is bound to interpose and supply the defects of the law.” (Grounds and rudiments of Equity, page 75.) So “ equity will relieve against one’s own act according to circumstances.’’ (id. 96.) “ Courts of equity, not suffering a right to be without a remedy, interfere in all cases in which the right is clear, but from want of particular evidence is unavailable at law.” (1 Fonbl. Eq. 154, note f.) In Newton v. Rouse, (1 Vera. 460,) it was decreed that 100 guineas, part of an apprentice’s fee, be paid back to the father of the apprentice, his master having died within three weeks after sealing the articles. The case of Underwood v. Stuyvesant, (19 John. R. 181,) contains no principle adverse to the equitable claim of Quick. The court there say, “ the casus foederis has not occurred* and the parties are mutually absolved from their contract in relation to the streets,” &c.
    The original agreement was, that the ground marked on the maps for Quick-street and Rensselaer-street, should be devoted as streets"; and the conveyances between the parties were designed to carry that object into effect. The legislative power which has been exerted over the subject, could not be foreseen by the contracting parties. They contemplated the usual course by which the corporation were in the constant habit of adopting streets voluntarily opened and dedicated by the proprietors. But suppose it had occurred to the minds of the parties, or the question had been put, what shall be done in the event that the corporation or the government should prohibit these streets from being opened ? Can it be reasonably supposed that Jacobus Quick would have consented, or that Petrus Stuyvesant would have had the conscience to insist, that he should hold for his own use in fee simple the ground thus conveyed to him by Quick for the intended streets without compensation?
    If the act of 3d April, 1807, had not passed, there can be. nQ that equity would have compelled- Mr. Stuyvesant to. open the contemplated streets (Quick arid Rensselaer} whenever the corporation or the government were ready to adopt .'and sanction them as publiti streets. That act has for-. bidden them to be opened; and shall this exercise of sovereign power to enure, to the benefit of Mr. Stuyvesant as to give him the land which the parties agreed to devote for those streets? .Shall. Quick not only lose the expected benefit of those streets, but lose his land also, without any equivalent ? Shall Quick’s deed to Stuyvesant for the streets stand# and, become absolute for the exclusive benefit of the grantee, after-the only object of the grant has been thus defeated ?
    The motives and consideration which induced Jacobus Quick to make the agreement were the advantages of three corner lots, and the benefit of fronting on the two contemplated streets; and. as to these, the consideration has utterly failed. But Mr. Stuyvesant is equally well accommodated by Fourth and Fifth streets, laid out by the commissioners: he has lost nothing, has madejo sacrifice; and he now seeks to appropriate to his ówn use the ground which Mr. Quick gave for the use of streets, which a subsequent, law has forbidden to be opened. " ,
    The damages allowed - by law for opening new streets do not-include injuries arising from breach of contracts, of from failure of consideration in a. deed. The appraisers had no jurisdiction to enquire into the equities of this case ; and so far as Fourth-street, cut off a small part of the gore now in dispute, compensation (it must be presumed) was allowed to the defendant, he having the legal title to it. . ,
    The objection for want of parties, is not well founded; but, even if new parties are necessary, the present bill is sufficient for the immediate purpose for which it was filed, to wit, to stay the ejectment at law ; and the bill ought to be retained for that object till new parties can be introduced by amending the bill.

      P: A. Jay, for the defendant.
    The court, after a lapse of thirty years, will not set aside solemn conveyances, when all the parties to them have long since died, merely upon conjecture concerning the inducements of the parties, without any pretence of mistake, and without any allegation of fraud.
    The defendant and those under whom he claims, have been in possession more than thirty years. This is a bar even to a writ of right. The complainant could have no right of entry, nor could he lawfully enter upon the land he claims and erect a house upon it, without previously establishing his title in some court of law or equity.
    If the complainant succeeds, it must be upon the ground, 1. That the consideration has failed ; Or, 2. That Mr. Stuyvesant held the streets in trust to open them, or if that could not be done, to re-convey them to Quick.
    1. How does the court know what were the considerations or inducements of Jacobus Quick in making this conveyance? Can the court guess them from the circumstances of the transaction, or from the valuation of the lands made by witnesses who testify to the value of lots thirty years ago ? Can a decree of this court be founded upon guesses ? Can the court divide the consideration of the conveyances, and say that the ground conveyed to Quick was the consideration for that conveyed to Stuyvesant, and that there was no consideration for the streets ? Can the court be sure, or in- « deed can it be believed that Stuyvesant would have conveyed the lots at all, if he had not .received a conveyance for- the streets ? Yet it is cdntended by the complainant that the streets ought to be re-conveyed, and that he should retain all the land conveyed by Stuyvesant.' ' ' . -
    But even supposing that the consideration has failed, will that authorize the court to decree a re-conveyance ? Suppose the title to. the land conveyed by Stuyvesant had failed, in that case, Quick would have had a remedy upon the covenants in his deed; but we submit that his own conveyance could not have been rescinded.
    Again, the lapse of time is an effectual bar. “ If the equitable title be not sued upon within the time within which a legal .title of the same nature ought to be sued upon to prevent the bar created by the statute, the court acting by analogy to the statute will not relieve.” (Bond v. Hopkins, 1 Sch. & Lef. 429. Stackhouse v. Barnston, 10 Ves. 466. Dewdney., ex-parte, 15 id. 496.)

      2. Did Stuyvesant "take as trustee ? The deeds contain rio declaration of trust; no covenant relating to the streets ; nothing from which a trust can be inferred. There is no evidence that-any trust was Undertaken.’ - Is it "possible, then, that the court can decide first that there was a trust,, and-next define what.-it was? Even if the deed had, contained an express covenant to open the streets,.the law of 1807 rescinded that covenánt. (Brewster v. Kitchin, 1 Ld. Raym. 317.) But the lapse of time'will still be-a bar, even if a-trust should be implied. r- ' , ' ‘ r ' ;

    It- is true, that" the case of "a trustee is an exception to the rule stated above. But then the" exception .only extends- to an avowed technical trustee; not the case of a trust fixed upon a man against his will, by implication of-law, for the sake of the remedy. (Townshend v. Townshend, 1 Cox’s Ch. C. 34. S. C. 1 Brown’s Ch. C. 551. Decouch.e v. Savetier, 3 John. Ch. R. 216.)
    3. But- the" original, conveyances cannot be rescinded in part only/; so that the complainant is to retain all that was conveyed' to his father, and receive back what his father conveyed^ to Stuyvesant. If the conveyances are .rescinded at all, they must be in foto. The parties must be restored to their- original situation, .for no fraud is imputed to Stuyvesant. But it, is impossible- to rescind the whole .transaction upon ■ 'this bill. . ...
    • The complainant, in 1816, conveyed away to -William Quick all his title to a part of the land contained in the deed exepüted by Stuyvesant. It is no answer to say that after-wards,. in • 1824, some- of the children of William Quick pur- _ chaséd Quick street-from the defendant. The; complainant is unable to re-convey the land which his father received, and therefore cannot rescind- the transactions by means . of which it was received. . . - ;
    -The complainant’s bill ought to be dismissed, with costs. '-
   The Chancellor,

From the admissions in the answer, and the testimony, in this cause, there can be no doubt as to' the intentions and object of P. Stuyvesant and • J. Quick at the time the conveyances of April, 1797, were executed. It was not the intention of either party to vest the’ title to the land included in Quick and Rensselaer-streets absolutely in Stuyvesant for his Own use, or for any other purpose than that of opening a street over the same for the mutual accommodation of both parties. For the lands which Quick acquired under that arrangement, Stuyvesant received a full equivalent in the two pieces, at the north end and' on the rear of the south end of Quick’s land, which were conveyed to him for his own use. From the situation and value of the property, it is not; probable that Quick would have consented to an exchange of lands, even to that extent, if he had not contemplated a greater benefit to his remaining-property by the opening of the proposed streets.', The particular mode in which ,the parties attempted to carry into effect their arrangement cannot alter their equitable rights, although the legal title to. the land intended for the streets became thereby vested in Stuyvesant. If the manner of conveying had been reversed, and the legal title to the streets, through the Bowery farrri to the East river, had been vested in Quick for the same object, the injustice of retaining that portion of the land for other purposes might have been more apparent; but the equity of the case would have been the same. The' event which has happened was not contemplated by either of the parties at the time, and therefore was not provided for'by their agreement. By an act of the government over which they had no control, the parties were prohibited from laying out and opening the con-, templated streets. If such an event had-been foreseen, it ■ would unquestionably have been provided for in the conveyances. Courts of common law cannot supply defects of will,' or rectify mistakes in written agreements or conveyances. Hence, with respect to matters of this kind, results the necessity of a court of equity, which, authorized'by the-principles of justice, ventures, to correct words by circumstances, and to supply omissions in will, by conjecturing what would have been the will, of the parties had they foreseen the event. This, in jaw language,' is' tó judge according to the presumed Or implied will of the parties; not that’any will was "interposed, but only that equity directs the same thing to be done which it is probable the parties themselves would have directed had' their foresight reached so far. . (Kaime’s Prin. of Eq. 40.) Thus" in Newton v. Rowse, (1 Vern. 460,) where a father articled'his son to an attorney, and gave £120 with him, and the attorney died within three weeks thereafter, the executors of the latter -were, decreed to refund 100 guineas to the father. Every man who makes a covenant or executes a deed has an object in view, which he proposes to, accomplish. by means .of the covenant or deed. They sometimes fall short of the end or object which was intended, and sometimes go beyond it. If . the end proposed is lawful# a court of common law only enquires what acts of will were really exerted; and the deed or covenant is made effectual without regard to consequences. But courts Of equity "are more at liberty' to follow the dictates of refined, jus tice. They consider every' deed in its true light, as a means, employed" "to bring about some event; and in this light they refuse to give it force any farther than is conducive to the proposed end. In all matters whatever as well as in matters of law, the end is the capital circumstance ; and the means' are regarded so fair" only as they contribute to that end. , Where a deed or obligation is sought to be made effectual in an event which is unexpect-. ed to both parties, a court of equity denies its authority. The' party seeking . to' enforce it is unjust' and inequitable in-his 'demand, aud this furnishes a valid objection for the adverse party. (Kaimes’ Prin. of Eq. 80, 81, 94.) .These principles are constantly acted upon by this court, subject to such limitations and restrictions as are necessary, to protect*the rights of bona fide purchasers and others who have "superior equities. "Where, from any defect of the common law, want of foresight of the.parties, or other mistake or accident, there* would be a failure of justice, it is the duty of this court to interfere and supply the .defect or furnish the remedy. ,

In this case if the street had been laid out and opened as originally intended by the parties, Quick would have had three valuable corner lots fronting on the Bowery. Lane. By the arrangement of the commissioners, two of them would have been destroyed or materially injured if the land appropriated for Quick and Renselaer sheets was not restored to him. While on the other hand, Stuyvesant’s property. would be equally benefitted by the new streets as by those originally determined upon in 1797. • The whole object of the conveyance of the land included in the streets, as well as the cause and consideration of that part of the conveyance having failed, justice and fair dealing evidently require a reconveyance of that land to the heirs of Quick. If the rights of ‘the parties had not changed in other respects, perhaps the heirs of Quick might have insisted upon a re-exchange of the other lots. This however would presenta case.of more doubt; as there was a consideration, though' as it turned out ah inadequate one,.for the exchange of lots. But that question cannot ■now arise, as it is put at rest by the compromise between the defendant and the heirs of William Quick. The only matter now in dispute relates to the land in Rensselaer street, in relation to which no persons except the parties in this s.uit have any claim or interest. This also disposes of thé objection raised by the defendant’s counsel, that all the proper parties were not before the court.

The remedy of the complainant is not barred by a lapse, of time. Previous to the decision of the commissioner's in 1811, Quick had no right to ask for ■ a" conveyance, as. it could not be known before the plan of the city was completed and filed that they would not adopt the .location of the streets as made by the parties in 1797. I do not understand that there has been any adverse possession, strictly speaking, since that time. The property was, occupied together until the opening of the streets and avenue, in 1824. -The heirs of Quick asserted their claim to these lands by their partition deeds in 1816. The right of ,the complainant to the strip of land now in controversy was'- again asserted in 1826, arid by the subsequent erection of a hWse thereon. I do not notice the allegation in the answer, that the defendant paid the assessment ori the strip of land in dispute-for the expense of laying out and opening Fourth-street, as it does not appear to be responsive to the bill, and the defendant' has made -no proof of the fact: ; ■; -■

The result of my investigation in this case is, that, the compiainant is entitled to a reconveyance of the premises in con-, troversy, north of and adjoining Fourth-street, which' formerly belonged to Johannes Quick, and to; his costs in this suit to be taxed. And the injunction heretofore granted in this cause must be made perpetual. .


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Ames vs. Blunt and others.
    Practice, ‘ under the revised statutes, as to removing causes from a vice chan- ‘ cellor to the chancellor before hearing, and as to referring causés and motions to a vice chancellor for his decision. ■
    If a cause commended before a vice chancellor is directed to be heard by the ‘chancellor, the whole cause is before the chancellor; and all orders and decrees thereafter made by him are to be .entered with the register or assistant register. V • '
    Where the chancellor holds' a term of the vice 'chancellor’s court, the orders and decrees made by him are to be entered with the clerk of the vice chancellor.
    Where 'the vice chancellor has been counsel.In a cause pending before him, • or is otherwise legally incompetent to decide the’ same,, or any motion or petition" in- the cause, the chancellor may direct the same to. be heard before, himself, or he may refer the same to the vice chancellor of any other , circuit. • . ' ,
    When a cause pending before the chancellor is in readiness for a hearing, ei- - ther party may apply for leave to have it heard before a vice •chancellor.
    ■ The' petition for such reference should state the situation of the cause ; and , notice" of the application'must be given, to the adverse party..
    If a greater number of causes are placed on the calendar of the chancellor or submitted to him, than he can hear and decide, he will without any ap- ■ plication from either party, refer such causes as he.thinks proper to the vice chancellors. ■ " , ' ■
    •Principles on which selections of causes for the decision of' vice' chancellors will be made. , - ' • '
    Where the order referring a cause to' a vice chancellor to hear and decide the ■ same is general, the "whole cause is before him, and all subsequent orders. and proceedings therein are to, be made and had before the vice chancellor. . ' - .
    Where some particular motion or branch of a cause only is referred to a vice chancellor,'the general proceedings, in the cause must continue to be had before the chancellor. - ,.

      If a special motion or other special application is referred to a vice chancellor for his decision, the chancellor may at the same time direct that all other proceedings and questions in the cause be had and heard before such vice chancellor.
    This suit was originally commenced before the chancellor, who from the press of business before him not having time to hear the same, referred it to the vice chancellor of the first, circuit, to be heard and decided by him; with liberty to either party to bring the same to a hearing at the next or any subsequent term of such vice chancellor’s court, on the usual notice. A question having arisen before the vice chancellor as to his jurisdiction and powers under the order of reference, it was submitted to the chancellor for his decision. He thereupon delivered the following opinion:
   The Chancellor.

The question immediately before me does not call for the consideration of all of the provisions of the revised statutes as to the jurisdiction, powers and duties of the several officers of this court. It may, however, be useful, and save much litigation and expense, at once to examine and settle the construction of these various provisions-By the constitution, the powers of this court are vested in the chancellor as the supreme judge thereof. These powers cannot be taken from him by any act of the legislature ; neither was it intended to be done by any provision of the revised statutes. Independent of the provision in the fifth section of the fifth article of the constitution, the legislature may direct the appointment of other officers of this court to perform such subordinate duties therein as shall from time to time be found necessary for the more convenient administration of justice. And by that special provision of the constitution, they are expressly authorized to vest those subordinate powers and duties in the circuit judges, ex officio.

The relation which the several vice chancellors bear to the chancellor under the revised statutes, is substantially the same as that which the master of the rolls and vice chancellor of England bear to the chancellor there. The master of the rolls has concurrent power with the chancellor to hear and determine originally the same causes and matters as the chancellor ; except in lunacy and bankruptcy,,which in England do not belong, to ,the court but to the chancellor in person. This is substantially the same- jurisdiction ,as that conferred upon the'circuit judges in their several circuits under the second section of that .title of the- revised ’statutes, which relates exclusively to this court. (2 R.S. 168, § 2.) The office of vice chancellor,' in England, was created'by the act of the.23d of March,'1813. (Statutes at large, ch. 24.)' ■ He ■ is authorized to hear and determine all causes and matters pending in' the court of chancery as the lord chancellor shall from ’ time, to’ time direct; but he cannot ‘reverse, alter, or discharge any decree or order made by the master of the rolls or of the -lord chancellor, without the special authority of the ..latter. This is the same power conferred upon the circuit judges by sections four and six of the title of the revised statutes before referred to, and subject to the same restriction which ,is found in the third section. The powers,and duties of masters and examiners are also conferred upon the vice chancellors in certain cases. ■ (2 R. S. 169, § 5, 6 ; 180, § 84, 85; 626, § 8.

When the proceedings are originally commenced before a vice chancellor in a case^ where.he has jurisdiction under the second section, he has as full power as the chancellor himself to hear and finally decide the cause ; and to enforce the performance of any order or decree therein, and to revise and correct, the proceedings of any inferior .'officer of the court. But all decrees and orders made by him; are subject to be reversed, ' discharged, ór altered by the chancellor, on appeal., (2 R, S." 177, § 57.) 1 -

Where a cause commenced before a vice chancellor is in readiness for hearing, the proceedings may be removed and the cause heard before the chancellor in person, whenever from the difficulty of the case or for any other reason the latter may think proper so tó direct. (2 R. S. 178, § 63.) If a cause is brought before the chancellor under this pro- ■ vision of the revised statutes, the whole case is before him. The orders and decrees made therein by the .chancellor are to bé entered with the ' register or assistant register. And all subsequent proceedings are to be before the chancellor, nti'less by his order the cause is again remitted to the vice -chancellor. But where the chancellor or the vice chancellor of another circuit holds the stated term of a vice chancellor, as authorized by the fifty-third section, (2 R. S. 177, § 53,) the order or decree is to be entered as having been made by the chancellor, or substituted vice chanceller, holding the stated term of the vice chancellor of the particular circuit where the proceedings were pending. And it must be entered in the office of the clerk residing in such circuit. In such cases the subsequent proceedings in the cause will remain, and be continued before the vice chancellor of that circuit. The fifty-third section has made no provision for the hearing and deciding of a special motion, or other collateral application in the cause, in vacation. Nor does it provide for a case where it would be inconvenient for the chancellor or the vice chancellor of another circuit to hold the stated term of a vice chancellor who had been counsel in the cause, or who for any other reason could not hear and decide upon the motion or other application. In such cases there can be no doubt of the right of the chancellor to direct the motion or application to be made before himself. And under the general power given by the sixth section, (2 R. S. 169, § 6,) he may authorize the same to be heard and decided by the vice chancellor of any other circuit, at such time and place as will be most convenient to such vice chancellor and to the parties in the cause.

The fourth section of this title provides that the hearing and decision of any motion or of any cause set down for hearing before the chancellor, may be referred by his order to any vice chancellor, subject to the appellate jurisdiction of the chancellor, (2 R. S. 169.) The practice of entering an order and setting down a cause for hearing was abolished by the rule of the 4th of August, 1823. By the former practice an order to set the cause down might be entered at any time after the cause was in readiness for hearing. The proper construction of that part of the section therefore is, that either party may apply to the chancellor, as soon as the cause is in readiness, for leave to bring the same to hearing before such vice chancellor as may be most convenient to the parties or their.counsel and who has sufficient leisure to hear and décide the cause. The petition on which such application is. founded should státe the nature of the suit, and show that it is in readindss for hearing,' either upon bill and , answer, plea or demurrer, or on pleadings of proofs, Or otherwise. And due notice of the application must be given to the adverse'party.- If the parties neglect t'o. make súch application, and more causes are placed upon "the calendar of the chancellor than he is .able to hear, and decide,' he. will, without the request of. either party, refer such causes as ..he is unable to hear in person to such vice chancellor as is most convenient. Under this provision of the revised, statutes, the chancellor will retain such causes to be heard before himself ' as, from the nature of' the litigation or the amount in con-trove sy, will bq. likely to be carried up- by appeal; and also such causes as have been partially .examined by' him on the ' merits, upon motion to dissolve an injunction or otherwise. Mortgage cases and. other causes- in which there is no real litigation, and which are' entitled to a preference by being placed in either of -the three first classes on. the calendar, will not be referred to a vice chancellor unless some special, reasons-are shown which may render such reference necessary.

When the order referring the cause to a vice chancellor to 'hear and decide the same .is general, the whole cause is. to be considered before the vice chancellor, as fully as if the original proceedings had been commenced before, him ; subject to the restrictions which are contained in the third section. . And . all motions, petitions, and other question's. which are subsequently made' or presented, or which may arise in the cause, must be heard and decided by the vice chancellor, .unless otherwise specially directed in .the order, of refer- . ehce. But where a special. motion or. petition; which only relates to some collateral matter "or particular branch of the 'cause, is referred to a vice chancellor to hear arid decide thereon, the cause still remains before the chancellor. Every proceeding which is necessary or proper to enable the vice chancellor to' decide the particular- matter referred to him, may - be done under his order or direction. He may therefore direct a reference to a master to ascertain facts, make" an order for the production of books and papers &c. and may enforce the observance of any such order made by him, in the same manner as if the whole case was before him. As to every other branch of the cause, the proceedings must still be had before the chancellor, as if no such reference of the particular matter had been made.

Even in these cases of the reference of a motion or other special application to a vice chancellor, the authority given to the chancellor by the sixth section is sufficiently extensive to enable him to direct all other questions and proceedings in the cause to be had and heard before the vice chancellor to whom the particular matter is referred. In such a case a special provision to that effect may be inserted in the order of reference.

This cause having been referred generally to the vice chancellor of the first circuit to hear and decide the same, all special motions and other proceedings therein, while the cause remains with him, must be made and had before the vice chancellor.


text:
    Duncan and others, trustees, vs. Dodd and others.
    The biddings at a master’s sale will not be opened except in very special cas. es, and then it will not be done unless the purchaser is fully and liberally indemnified for all damages, costs and expenses to which he has been sub. jected.
    Where property which was the only estate belonging to two infant children had been sold raider a decree of foreclosure, for half its value, to satisfy a debt nearly equal to the amount of the bid, a re-sale was ordered upon sc. curity being given that the premises should produce fifty per cent, advance upon such re-sale, and that the interest on the whole purchase money should be paid to the purchaser, together with all the reasonable costs and expenses which he had paid in consequence of the purchase, or to which he had.been subjected, either in opposing the application for a re-sale or in investigating the title to the premises.
    March nth.
    This was an application for the re-sale of mortgaged premises in the city of New-York. The property belonged to infant defendants, subject to the right of dower of their mother. The amount due on the mortgage, exclusive of costs, was less than $1700, and the premises were struck off to Turner the purchaser for $2025. Turner went into possession by permission of the master, and paid ten per . cent on the purchase money ; but the decree, no,t being -enrolled', no conveyance had been executed. The. mother and step father of the infants, as soon as they heard of the sale, applied to the purchaser to relinquish' his pur- ■ ■ chase, offering to indemnify him for his expenses, but he declined their offer.., The petitioners 'stated in their petition that the sale had been a surprise upon them, that the property Was Worth more1, than $4000, and they. oñered an advance of fifty per. cent.'on the' purchase, for the benefit of the infant defendants. The application was opposed by. the-purchaser, who stated among other things that béfore he had, any notice of the intention of the petitioners to apply for a re-sale, he had. agreed to rent the property, for two years from the first of May next-, to the tenant who is now in possession thereof. . • ' .

      W. Silliman, for. the petitioners..

      J. Leveridge, for the purchaser.
   The Chancellor.

By' the practico oí the English court of chancery it is almost a matter of course to .open the bid-dings on a master’s sale, before the confirmation of his report, upon the offer of a reasonable advance on the amount bid, andi the payment of the costs and expenses of' the purchaser. As a general rule, and advance of ten per cent, is sufficient to - authorize a re-sale. (Garston v. Edwards, 1 Sim. and Stu. 20.) But the biddings will not be opened where the amount of the advance is less than £40. (Farlow v. Wieldon, 4 Mad. Rep. 460.) . The English practice as to opening bid-dings has not been adopted in this state, and it is probably not' desirable., thát it should be introduced here. In Williams, v. Attleborough, (Turner’s Rep; 75,). Lord Eldon says, “ During a period of nearly half a .century which I have passed in this court, and in which Lord Apsley, Lord Thurlow, the Lords Commissioners, with" Lord' Loughborough .at. their head, then'Lord Loughborough as chancellor/ and after. him the Lords Commissioners,- with Chief Baron Eyre, at their head have presided here, I have heard one and all of them lament that the practice of opening biddings was ever introduced. I confess that I have great doubts myself upon the subject; but after a practice so long established, it is not for me to disturb it.” If such are the opinions of English chancellors as to the dangerous tendency of the practice in that country where real estate has, comparatively, a fixed and certain value, a re-sale, ought not to be granted here except in very special cases. In the city of New-York, real estate when sold by a master under a decree or order of this court generally produces its fair value. It is therefore essential to the interests of those whose property is thus sold, that purchasers should continue to retain full confidence in the safety of such purchases; and that they will not, as a matter of course, be disturbed merely because a good bargain has been obtained. And when the court is obliged to order a resale of property purchased in good faith, the former purchaser must be fully and liberally indemnified for all damages, costs and expenses to which he has been subjected.

In Williamson v. Dale, (3 John. Ch. Rep. 292,) Chancellor Kent permitted a re-sale, on grounds which were certainly not stronger in favor of the application than those which are here presented. The property in this case is the sole dependance of two infant children, and has been sold for half its value to pay a debt a little less than the amount of the purchase money. The property was sacrificed, either through the misapprehension, or negligence, of their mother and step father. Immediately after they heard of the sale they made the application to the purchaser to let them redeem the property for the benefit of the infants, and they now offer an advance of more than one thousand dollars on the former bid. If the defendants were adults, and the property had been sacrificed by their own negligence or inattention, I should not disturb the sale ; and now it can only be done on condition that a full indemnity is offered to the former purchaser. The fact that he has agreed with the former tenant of the premises to rent the same to him for two years from May next, does not stand in the way of a re-sale. If it is a mere verbal agreement under which nothing has been done to change the rights of the parties, it is not valid under that provision of the revised statutes which requires all leases for more than one year to be in' writing. (2 R. S. 135. § 8.) ' But if the agreement is valid, the" property mu'st'b’e put up and sold, subjgct tQ tjje rjg}jts 0f the lessee.

If, within ten days, the petitioners, or- any other person in their behalf, give sufficient surety to the Satisfaction of the" master, that the premises shall actually produce fifty per cent, advance upon a • re-sale, or if they deposit with the master . within - that time the fifty per cent, advance offered by them, he must put up the property again and re-sell the" same upon • such notice as he may, deem reasonable, not less than one week. .In that case the master is.to pay to the former purchaser, out of. the amount of such advance, the interest . of his deposit and of the whole purchase money which, he has kept on hand, together with all reasonable costs and. expenses which he" has paid or been subjected ■ to in opposing. this application, or in investigating the title. The property ■must also be sold, subject to any rights which the present tenant may have, under the alleged agreement with Turner.


author: The Chancellor

text:
    Minthorne’s executors vs. Tompkins’ executors.
    Where the decree is full as to any branch of the cause, or as "to any of the. . parties thereto, it "must be enrolled before a deed can be executed on a sale under-the decree, and before an execution.-can be issued to enforce á per. formance of such decree.' , . .
    If the enrolment of any subsequent decree is. necessary, it is to-be; made by a continuance on the record of the first enrolment, . .
    March 20th.
   The Chancellor

decided that the-lllth rule "did not apply to the case of a sale under ah interlocutory order of the court; that in .such a case, the 'deed might be executed beforeenrolment. But-if the decree was final as to the whole subject matter of the sale, that it must be enrolled before any. conveyance could be executed ¡ although, as to other branches of the suit, another decree might be necessary before the cause was finally disposed of by the court. And that if a bill was dismissed with costs as to one defendant, the decree must be enrolled before any execution could issue thereon. And that the enrolment of any subsequent decree between other parties, or as to other matters, must be made by a continuance on the record of the first enrolment.


author: The Chncellor

text:
    The People, ex rel. Lovett, vs. Rogers.
    Manner of proceeding where a defendant is brought into court on an attach, ment for a contempt.
    Where, from the answer of the parties to the interrogatories filed, it appeared that he was in contempt for refusing to obey an order to deliver over certain property to a receiver, he was ordered to be committed to close custody until he complied with the former order of the court and paid the costs of the proceeding.
    The costs which the party is bound to pay must be specified in the order of the court and in the mittimus.
    Form of an order of commitment for a contempt.
    Where a party perseveres in his refusal to deliver over property to a receiver the property may be sequestered, and his servants and agents, &c. will be prohibited from delivering it to him or applying it to his use on pain of contempt.
    March 25th
    The defendant in this case was borught up on an attachment for a contempt in not complying with an order of the court directing him to deliver over his property upon oath to a receiver. The prisoner being in the custody of the sheriff of the city and county of New-York in execution on civil process, a habeas corpus was issued to bring him into court. Upon the prisoner’s being brought before the chancellor, an order was entered directing the relators to file interrogatories in relation to the contempt specifying the facts and circumstances alleged against the defendant, and to serve a copy thereof upon him; and that the defendant put in written answers thereto upon oath, and file the same with the register within twenty-four hours thereafter. In the mean time the sheriff was directed to detain the defendant in custody, and attend with him from day to day before the chancellor, until the further order of the court. The defendant having put in his answers to the interrogatories, the parties were hoard before the chancellor counsel in relation to the alleged contempt.

      H.'Bleecher, for the relators.

      R. M. Blatchford, for the defendant.
   The Chncellor

decided that the defendant was in contempt ; and, as it appeared he was a prisoner in execution on civil process, that he must be remanded to the prison in New-York, on the habeas corpus; that for the contempt he must be committed to the common gaol of the city and county of New-York, and be confined therein, in close custody, until he complied with the former order of the court and paid the costs and expenses of the proceedings in relation to the contempt. (2 R. S. 583, § 23; 755, § 7.) And a process of commitment was directed to be issued under the seal of the court.

The order recited the former order of the court and the proceedings thereon; showing the contempt of the defendant, the issuing of the attachment and habeas corpus, and the proceedings thereon; the adjudication of the court that the defendant was guilty of a contempt in neglecting and refusing to obey the former order, and that such misconduct of. the defendant was calculated to and did actually impair, impede and prejudice the rights and remedy of the relators in their suit. The .order then directed the defendant to be committed to the common gaol of the city and county of New-York until he should comply with the former order of the court, (specifying particularly what was to be done) and pay the costs of the proceedings; and that a process of commitment issue accordingly.

The chancellor also decided that the costs of the proceedings shpuld be taxed immediately; and that the amount thereof must be specified in the order and mittimus. He also decided that the relators might have an order, in the original cause, to sequester the property and effects of the defendant and deliver them over to the receiver; and to prohibit all persons who had any such property or effects in their possession or under their control, or who were indebted to the defendant, from delivering the said property or effects or paying such debts to him or to his order, or applying the same to his use after publication of notice of the order on pain of contempt.


text:
    Davis and Brooks vs. Mapes and others.
    Where the defendant in his answer denies all knowledge of a fact charged in the bill, but admits his belief as to the facts charged, it is not necessary for him to deny any information on the subject.
    The complainant is entitled to an answer to every fact charged in the bill, the admission or proof of which is material to the relief sought, or is necessary to substantiate his proceedings and make them regular.
    The defendant must answer as to all facts within his knowledge, or which he can ascertain from an inspection of books and papers in his possession or under his control.
    If the further answer which is called for by the complainant’s exceptions can be of no possible use to him, the first answer is sufficient, and the exceptions cannot be sustained.
    As a general rule, if the charge in the bill embraces several particulars the answer should be in the disjunctive denying each particular; or admitting some and denying the others according to the fact.
    This case came before the chancellor on exceptions to a master’s report, allowing certain exceptions to the answer of the defendant Mapes, for insufficiency.
    April 5th,

      J. Blunt, for the complainant.

      C. Edwards, for the defendant.
   The Chancellor.

The first, second, sixth, seventh and eighth exceptions allowed by the master, all depend upon the same principle. The first relates to matters charged in the bill as having ocurred between the complainants and other persons; as to which, it is not pretended the defendant Mapes has any knowledge, except from the information of others. The four last relate to judicial proceedings against another person, such as the issuing of a writ, the verdict given by a jury, and the judgment and execution founded thereon. As to all these matters, the defendant answers, in substance, that he believes they are true as stated in the complainant’s bill; but that he knows nothing as to those matters, except from what is set forth in the bill; and he craves leave to refer the complainants to the proof thereof.

It is insisted by the complainant’s counsel that the defendant should have denied all information, as well as knowledge ; or that he should have admitted that he had been informed thereof. And on this ground I presume the master allowed these exceptions. The true way to ascertain whether an allegation in the bill or an omission in an answer is material, is, to enquire whether a further answer, stating or admitting the fact in that manner which would be most favorable to the complainant, would be of any benefit to him. The complainant is entitled to an answer to every fact charged in the bill, the admission or proof of which is material to the relief sought, or to substantiate his proceedings and make them regular. Although he might prove the fact by other téstimony, if it is within the knowledge of the defendant, or is contained in books or papers in his possession or legally under his control, the complainant is entitled to his answer as to that fact, to save the expense of other proof.

In this case the defendant admits his belief in the truth of the matters alleged. If he had admitted also that he had been so informed by the parties and their attornies, but had denied all knowledge on the subject, and referred the complainants to the proof thereof, would they be in any better situation as to the proof of the fact, than they are under the present answer ? It is not necessary to decide, in this stage of the cause, whether the defendants admission of his belief of the facts, under the qualifications therein contained, would be sufficient evidence thereof at the hearing. If further proof is necessary under the present answer, it would be equally so if he stated his information as well as his belief, and referring the complainants to proof of the fact. In Amhurst v. King, (2 Sim. & Stu. 183,) the defendant answered, “It might be true for any thing he knew to the, contrary, that,” &c. as in the bill: but that he was an utter stranger to all and every such matters, and could not form any belief concerning them; and the answer was held sufficient. Here the defendant says he knows nothing of such matters, except from what is set forth in the complainant’s bill. This is in effect denying that he has any other information concerning them. In Jones v. Wiggins, (2 Young & Jervis’ R. 385,) one of the assignees of a bankrupt put in an answer, stating that his name had been used in the action at law without his knowledge or authority; that he had not acted as assignee, except in some trifling particulars not connected with the matters mentioned in the bill; that he was wholly ignorant of the matters therein stated, and could not make any other answer thereto as to his knowledge, belief, or otherwise. The lord chief baron assented to the proposition, as a general one, that a defendant answering was bound to answer fully; but he considered that no benefit could be derived from requiring, a further answer in that case. And that a further answer would only be a waste of time and expense. The exceptions were therefore overruled, with costs. Upon the same principle the master should have overruled these exceptions.

The third exception relates to facts which may be material in the further prosecution of this cause. As the defendant has undertaken to answer those particular allegations in the bill, he should have answered them fully.

The fourth exception was properly allowed by the master. The defendant does not admit, or deny, that coffin had the actual control of the goods ; he believes he continued in possession, but denies that he had the legal control, because the execution was upon them. If he knew that the sheriff permitted Coffin to continue in possession and to have the-actual control of the goods, he should have admitted the fact, instead of stating it as a matter of belief only. If he had no knowledge of the fact, he should have so stated it in his answer. It would then- have been sufficient to state his belief, without an express admission of the fact charged. The averment of legal control in the sheriff is a matter of law which the defendant may insist upon in his answer, but he must give a full answer as to all the facts charged, so that the court may see whether he is right in his legal inference, and whether it can be available to him on the hearing.

The fifth exception is also well taken. In this case the defendant has answered literally as to a charge in the bill, laid to be done with divers circumstances, He should have answered explicitly each distinct part of the charge : As whether Coffin did at any, and if at any, at what time, between the issuing of the execution and the fire, sell the goods levied on, or any part thereof; and if any, what part; and whether the defendant, or the sheriff, had knowledge of the fact and permitted him to do so, or attempted to hinder him. And if he sold any goods, whether he accounted with, and paid over to the sheriff or to the defendant Mapes the proceeds thereof, or otherwise. The answer as it now stands is a negative pregnant, and the material part of the charge may be true. As a general rule, when the charge in the bill embraces several particulars, the answer should be in the disjunctive, denying each particular, or admitting some and denying the others, according to the fact. (1 Grants Ch. R. 148. Hoffman, 263.)

The two first and the three last exceptions to the answer must be overruled. The master’s report as to the third, fourth and fifth exceptions is confirmed, and the defendant must put in a further answer to them within twenty days after service of a copy of the order, or the bill may be taken as confessed. A majority of the exceptions referred not being allowed, neither party is entitled to costs on the reference. And neither is to have any costs upon the hearing of the exceptions to the master’s report.


text:
    L. Wood vs. C. Wood.
    On a bill for a divorce, if the wife is an infant she must prosecute or defend by her next friend or guardian.
    Where an infant defendant put in an answer to a bill of divorce, by her solicitor, the proceedings were, on her application, set aside for irregularity, and she was permitted to put in a new answer by her guardian.
    Although the defendant denies the adultery charged in the bill, they may also set up the adultery of the Husband or any other matter in bar of the suit.

      Cohabiting with the wife after a knowledge that she has been guilty of adultery, will be such a condonation or forgiveness of the offence as to bar the suit for a divorce.
    Forgiveness of the injury by implication, from the fact of cohabitation, ought not to be held a strict bar in all cases against the wife, as she is to a certain extent under the control of her husband.
    The charge of adultery, whether by way of crimination or recrimination, should be stated in the pleadings in such a manner that the adverse party may be prepared to meet it on the trial of the issue.
    The adultery must be charged With reasonable certainty as to time and place, and the name of the person with whom it was committed, if known, should also be stated.
    If the name of the person with whom the adultery was committed is not known to the party making the charge, that fact should be averred, and the time, place and circumstances of the adultery should be stated.
    If the charge of adultery is not sufficiently explicit, the objection may be made when a feigned issue is applied for.
    Where the wife is the defendant in a suit for a divorce, if she denies on oath the charge of adultery, or shows a valid defence by reason of condonation or otherwise, she is entitled to a reasonable allowance for her support pending the litigation, and to enable her to defend the suit.
    April 5th.
    The bill in this cause was filed for the purpose of obtaining a divorce on the ground of adultery. The wife put in a general answer denying the adultery charged in the complainant’s bill, and a feigned issue was thereupon directed. A petition was afterwards presented by the defendant, stating on oath that she was innocent of the adultery charged against her; but that her husband had by threats of violence and under peculiar circumstances obtained from her written confessions which he intended to make use of against her on the trial; that since her answer had been put in, she had been informed that adultery on his part would be a bar to the suit; and that he had lived and cohabited with her since the time the written confessions were given. She also alleged that she had been informed and believed that her husband had committed adultery with a particular person named in the petition, and with others whose! names were not mentioned. And she asked for leave to amend her answer by setting up these matters of defence therein, and that the feigned issue might be made to correspond therewith. She also stated that her husband was a man of large property, and that her father was poor and confined on the limits, and was unable to support her or to furnish the means of making a proper defence. She therefore prayed an allowance for herself and child pending the litigation, and a sufficient sum to meet the expenses of the suit.

      A. Van Vechien, for the complainant.

      Julius Rhoades, for the defendant.
   The Chancellor.

The application on the part of the defendant to put in a new answer must be granted as a matter of right. The former answer and the whole proceedings founded thereon have been irregular. It appears from the affidavit of the complainant, as well as from the petition of the defendant, that she was married in January, 1825, when she was only in her sixteenth year. She was therefore an infant at the time the answer was put in and when the feigned issue was awarded. She appeared and put in the answer by a solicitor instead of a guardian when she was' legally incompetent to understand and defend her own right. Although a wife may sue or be sued as though she were a feme sole where the bill is filed to obtain a divorce on the ground of adultery, yet if she is an infant she must prosecute or defend by her next friend or guardian as in other cases.- Although she denies on oath that she has been guilty of the adultery charged, she also has a right to set up other matters in bar of the divorce, if the husband should succeed in establishing the fact against her. She swears she was not advised as to her legal rights when the answer was put in; and she was legally incompetent to make the defence if she did understand them. If she is now of age she has a right to put in a new answer, insisting upon the adultery of her husband; and any other matter which, if true, will be a legal bar to his suit. If he has voluntarily cohabited with her after a full knowledge that she had been unfaithful to his bed, it would be such a condonation or forgiveness of the injury as to bar the suit for a divorce. These principles, introduced into the revised statutes, have not changed the law on the subject of divorce. They are only declaratory of what the law was previous to their enactment. In Foster v. Foster, (1 Consist. Rep. 144,) recrimination was set up in bar of a suit for a divorce, brought by the husband against the wife, in the consistory court of London ; and the adultery of the husband was held a valid bar, although the adultery of the wife was fully established. In that case Sir William Scott shows such to have been the settled law of England long before the American revolution. It was therefore the law of this state at the time this suit was instituted, and is now incorporated into our statutes. It is true the French law is different on this subject; but it may also be observed that divorces are there obtained for many other causes than that of adultery. Here they are only granted for the criminal acts of one of the parties, and in favor of the one who is innocent. If both parties are guilty, neither has any claim to relief; and they are in that case suitable and proper companions for each other.

It is also objected to the new answer proposed to be put in by the defendant that she does not specify, except in one instance, the persons with whom the complainant has had criminal intercourse; so that he may on the trial be surprised with evidence which he is unable to meet or explain. And that it appears from her own showing that there has been a condonation of the adultery attempted to be set up by way of recrimination, if it ever was committed. In Beebe v. Beebe, (1 Haggard, 789,) Lord Stowell says 'condonation is forgiveness legally releasing the injury, and may be either expressed or implied. On the part of the husband, it may be implied from his cohabiting with a delinquent wife after knowledge of her guilt; for it is to be presumed he would not take her to his bed again unless he had forgiven her. But condonation, by implication from the fact of cohabitation, ought not to be held a strict bar against the wife. She is in a measure under the control of her husband. And this distinction will be found running through all the English case on this subject. (De’Anguillar v. D’Anguittar, 1 Haggard, 786. Kirkwall v. Kirkwall, 2 Consistory Rep. 279. Best v. Best, 1 Adam’s Rep. 411.) It does not follow because a donation or forgiveness by the complainant will bar a suit for a divorce, that it will have the same effect as to a defence, by way of recrimination, set up by the defendant. That must depend upon, the particular circumstances óf' the case. ■ (1 Haggard, 797.)

As to the' manner in which the- adultery should be charged in the bill or answer, the case of Germond v. Germond, (6, John. Ch. R. 347,) has been cited; but it throws but little light on the subject. The extent of the decision in that case was, that the person with whom the adultery was .committed ’ need not be named if his name, was not known • to-the complainant. But the subsequent history of that cause, which was finally disposed of in 1828, (1 Paige’s Rep'. 83,) fnay serve to illustratei the necessity and propriety detailing the particular . acts of adultery in- the bill or answer with sufficient certainty to put the adverse party on his guard, so that he may be prepared on the trial of the issue to rebut or explain-the circumstances ' given in -evidence against him. '. On the first tri- . al, the defendant was surprised with a charge of adultery against her, said to have been committed with a man then dead, and a verdict was found for the complainant perfectly' satisfactory to the judge who tried the cáuse. The chancellor also thought there Was no good reason for ■ disturbing the verdict for any other cause than that the testimony was not warranted by the issue. It afterwards turned out that the defendant was an innocent woman. The principal witnés, - on whose testimony the first verdict had been found against her, had written a letter to the husband offering to furnish him with testimony sufficient to obtain a1 divorce if he would give him $1000; and this witness was' originally named in the bill as the person with whom the adultery was committed.- A second trial took place, in which the innocence of the wife was established by the verdict; but some irregularity having been . discovered, in obtaining the jury, á third trial was awarded. The cause was then tried by a struck jury. The ssime witness was called, and swore to adultery • committed with himself as well as with the deceased person. But the time fixed by him when his own criminal connection took place turned out to be when he whs not old enough to commit adultery. It also" appeared that two respectable persons had been offered from $500 to $1000 if they would seduce the defendant so that a divorce might fee obtained. And the defendant was again acquitted, to the entire satisfaction of every disinterested person who heard the trial.

The only safe and prudent coarse is to require the charge, whether of crimination or recrimination, to be stated in the pleadings and in the issues in such a manner that the adverse party may be prepared to meet it on the trial. If the persons with whom the adultery was committed are known, they must be named in the defendant’s answer, and the adultery must be charged with reasonable certainty as to time and place. If they are unknown, that fact should be stated in the answer and in the issue, and the time, place and circumstances under which the adultery was committed should be set forth. Neither party has a right to make such a charge against the other on mere suspicion, relying upon being able to fish up testimony before the trial to support the allegation. When information sufficient to justify the charge is given, the party will be possessed of the requisite facts put the charge in a distinct and tangible form on the record. The practice in the ecclesiastical courts of England is to set out all the principal facts of the case in the libel, or in the recriminatory allegation. But perhaps it would not be reasonable to require so much particularity here. If the charges in the bill or answer are not sufficiently explicit, the parties may make that objection when an issue is applied for; and the court will then see that it is so framed that neither party shall take any due advantage of the other at the trial.

It does not appear from the petition or affidavits whether the defendant is now of age, or still a minor. If she is under age, the new answer must be put in by a guardian ad litem, appointed for that purpose. When the cause is at issue either party may apply to the court for a feigned issue agreeably to the 167th rule.

The defendant is also entitled to a reasonable allowance for the purpose of enabling her to defend this suit; and to alimony for the support of herself and child pending the litigation. In Wilson v. Wilson, ( 2 Consist. Rep. 204,) Sir William Scott says, “ In suits instituted either by the husband or the wife, for J consider that fact to be indifferent, the wife is a privileged suitor, as to costs and alimony ; andón the same principle that- the' whole property is supposed bylaw to be in ■ the husband. If the wife; therefore, is under the necessity of living- apart, it is also necessary that she should be subsisted .during , the pendency of the suit;'and that she should be enabled to procure justice by being provided with the means of defence.” And in D'Anguillar v. D'Anguillar, (1, Haggard’s Eccl. Rep. 788,) the same learned judge, says, “In general, the husband is bound to defray the wife’s costs ; otherwise' the wife would, be disarmed, and dénied justice. , The husband has by the law of this eouh: try, all the property.; and therefore, the wife must have the means -of 'self defence, .and ..of subsistence from him; but: when she has'a separate fortune the court always considers whether such separate means are sufficient for self defence and self subsistence." If the court is satisfied, the wife has' no reasonable ground of complaint, or is altogether in the wrong, it might, in the exercise of a sound discretion, refuse the means to enable her to carry on an unjust litigation at the expense of her, husband. But it would be manifestly unjust to condemn the wife unheard, or upon the ex parte affidavits of witnesses,-when she has had no opportunity to cross examine them or to disprove their allegations.

In this case the husband - swears to her guilt, and relies upon her written confessions and letters, and the testimony of his female servant, to establish it.. Although he denies the charge of adultery on his part, with the particular person named, he does not deny it generally as to .those she has not, named in her petition. Nor does he deny that he lived and cohabited with her .after the adultery charged against her was committed, and after he had in his possession, the written confessions of. her- guilt. . It is - impossible, thefore, for me to say, whether he will be entitled to, a, divorce, even if he establishes her guilt to the fullest extent. If'she'proves the fact of subsequent cohabitation, it may probably, amount to such a condonation of her adúltery as to bar his claim for a divorce. But tier account of -the ca.se is materially different; and as I have before stated, I cannot now undertake tó de•cicle between the conflicting oaths of these parties. She says he seduced her at the early age of fifteen, under a promise of marriage, and that being afterwards prosecuted by her father, he consented to marry her; but she says she has been informed that he stated before the marriage he would contrive to get rid of her. She swears that she is wholly innocent of the charge of adultery; that the confessions and letter to her father were drawn by her husband, who compelled her to sign them by threatening violence and to take from her her children, while she was living and cohabiting with him. She further stated that she had been deprived of the advice and counsel of her father in consequence of the violent quarrel which existed between him and her husband. She is a very base and perjured woman, or she has been shamefully used and persecuted. In either case she is entitled to a fair and impartial trial before any decision can be had on the question; and the husband, having sufficient property for that purpose, must furnish the means for the subsistence of herself and child pending the litigation, and of malting a proper defence to the suit. Considering the nature of this controversy, it would be unreasonable to require her to remain under the control of her husband in the mean time, or in any situation he may choose to select for her at a distance from her friends.

He must therefore pay to her., solicitor or guardian #150 to enable her to defend the suit, and to bear the expenses of the trial of the issue if one shall be awarded. And it must be referred to a master residing in the county of Tompkins, to examine and report what reasonable sum should be allowed to her monthly for the support of herself and of her oldest child; commencing from the time of the filing of the complainant’s bill.


text:
    The Cayuga Bridge Company vs. Magee and others.
    The provisions contained in the 2d section of the act of March, 1799, incorporating the Cayuga Bridge Company, prohibiting all other persons from erecting a bridge or establishing a ferry within three miles of the place where the company should erect their bridge, do not extend to the bridge erected by the company across the outlet of Cayuga Lake in 1809; the company having previously, By erecting a bridge across -the Cayuga Lake Between the villages of East and- West Cayuga, located the site of the bridge authorized to be erected by the aforesaid act.
    Exclusive privileges contained in a private act of incorporation, which are in derogation of the common law rights of the citizens at large, ought not to be extended by implication.
    They must be construed strictly against the company, according to the principles of the common law.
    Where the injunction may produce serious injury to the defendant, if the officer allowing the same neglects to take security from the complainant to pay such damages as may he sustained, the defendant may apply to the court for relief.
    A pril th.
    ^:aE ^ ™ cause was filed by the complainants, in jq27, to restrain the defendants and their associates from erecting a free bridge across the Seneca river or Cayuga outlet between the north bridge of the complainants and that of the Montezuma Bridge Company, under the act of the 16th of April,' 1825. An injunction was granted by the late chancellor, which had suspended the proceedings of the defendants. The cause was now brought to a hearing on bill and answer. The'facts in the case are sufficiently stated in the opinion of the court.

      D. B. Ogden J. A. Johnson, for the complainants.

      N. W. Howell &f J. C. Spencer, for the defendants.
   The Chancellor.

The facts in this case are few and simple; and the Cause turns upon the legal construction of the act of incorporating the Cayuga Bridge Company, and the several acts ' amending the same. The company were incorporated in March, 1797, for the term of 25 years, for the purpose of building a bridge over' the Cayuga lake or the outlet thereof, with a capital of $25,000. (Sess. 20, ch. 59.) But the corporation was to bo dissolved if the bridge was not completed within three years from the time of their incorporation. By the act of March, 1799, (sess. 22, ch. 21,) the time for erecting and completing the bridge was extended to the 1st of May, 1801, and the duration of the charter was extended to seventy five years. The second section of that act prohibited any other persons from erecting a bridge or establishing a ferry within three miles of the place where the said bridge should be erected by the company, or from crossing the lake within the same limits without paying toll to the corporation. The eighth section declared that the company should be dissolved if the bridge should remain impassable for 30 days after it was completed ; or, if carried away by the ice if it should not be re-built within eighteen months thereafter. The company erected the bridge across the lake between the villages of East and West Cayuga previous to May, 1801, and kept the same in repair until the spring of 1809, when it was carried away by the ice. After the bridge was destroyed by the ice, it was not re-built until 1813 ; at which time a new bridge was erected on the same site, under the provisions of the act of the preceding year. But shortly after the destruction of the first bridge, the company erected a new bridge over the outlet of the lake about two miles north of the site of the first bridge. In February, 1812, the inhabitants of the counties adjacent to the lake suppossing the corporation had forfeited its charter by neglecting to re-build the bridge at the former site thereof applied to the legislature for aid in erecting a bridge at that place. This application and the remonstrance of the company resulted in a concurrent resolution of the senate and assembly, directing the attorney general to take legal measures to try the validity of the charter rights of the company. Before any effectual proceedings were had under this resolution, a compromise was made between the agent of the company and those petitioners who were more immediately interested in the erection of a bridge across the lake at its former site, which resulted in the act of June, 1812, (sess. 35, ch. 137.) By that act, the company were authorized to add $50,000 to their capital stock, for the purpose of building" a substantial bridge across the Cayuga lake on the sité of the first bridge. The second section provides that' when the said bridge shall be completed, tne company shall have, possess and enjoy all the rights, privileges and immunities which were granted to them by the original act of incorporation and the several acts amending the same.; subject to certain restrictions and limitations contained in that section, which do not appear' material to the decision of this cause. By the third section of the act, they are authorized to take toll for crossing the- bridge over the outlet of the lake, and are bound to keep "that-bridge as well as the bridge across'the lake in repair arid to re-build them when carried, away or destroyed, under the-penalty of a forfeiture .of their charter..

The site of the free bridge of the defendants and their associates is more than-three miles, north of the. company’s bridge across the Cayuga lake, but it is' only a few rods-over one mile from their bridge across the outlet. The complainants insist that under the several acts in relation to théir corripány they have the exclusive right to the distance of threé miles both ways. from each of their bridges; and that no bridge or ferry can be erected or established, and no person can cross the lake- or outlet ■ within those distances without paying toll to them for the privilege. On the part of the defendants, it is contended that the, exclusive right of the corporation is confined • in extent -to. three‘miles ' éach way from the place where their" first bridge was erdcted; and-where their present bridge across the lake now stands.. " ,

If the construction contended for by' the complainants is correct, it- is evident' no free bridge can be erected. The. ' Montezuma bridge is within six miles of the company’s bridge _ over the outlet and by the ninth'section of the act of the 31st of March, 1815, (sess. 38, ch., 120,) no bridge can be built within three miles of the place' where the Montezuma bridge is erected. The act of 1825 authorizes the defendants and their associates to erect a free bridge “ at a certain point in . the vacancy between the bounds or rights included in the respective charters of the Cayuga Bridge Company and the Montezuma Bridge Company, near to and north of the north ."boundary of the first mentioried charter.” This is urged by the defendants as a legislative construction of the charter of the complainants. I think the legislature did not intend to pass upon the question now in controversy, but to leave it to be settled by the parties, or by the courts. The precise distance between the Montezuma bridge and the bridge of the complainants over the outlet, does not now distinctly appear by the pleadings ; and probably it was not certainly known to the legislature. And by the priviso, the defendants are prohibited from erecting their btidge' at any place where the same may violate, or be contrary to the vested rights of either of those companies.

The exclusive privileges contained in the second section] of the act of March, 1799, are in derogation of common! right, and therefore ought not to be extended by implica-t tion. A majority of the supreme court have decided that no person can cross the lake on the ice, within the prescribed limits, without being liable to pay toll to the corporation. (The Cayuga Bridge Company v. Stout, 7 Cowen’s R. 33.) It therefore is the more important that such injudicious grants of exclusive privileges should not be farther extended by construction. The act of 1797 is declared to be a public act, and is to be construed benignly and favorably for every beneficial purpose therein intended. No exclusive privilege was granted by that act; and it is proper to remark, that no such provision is contained in the acts of 1799 and 1812. So far, therefore, as the two last acts are in derogation of common right, they must be construed strictly against the company, according to the principles of the common law. (2 Mass. R. 146. 4 id. 140. 2 Mod. R. 57.)

It may be proper in the first place to ascertain what were the rights of the corporation under the act of 1799 in relation to this exclusive privilege, and then see how they were altered or affected by the subsequent act. The act of 1797 authorized the company to erect a bridge either across the Cayuga lake, or the outlet thereof. In the act of 1799, the outlet is not mentioned, either in the clause extending the time to complete the bridge, or in that which prohibits persons from crossing without paying toll. Whether the language of this act was changed because the company had determined to build their bridge across the lake instead of the outlet cannot, probably, be ascertained without referring to the petition on which that act was founded, and other facts not before me on these pleadings. Without reference to this change in phraseology, it is evident the three miles must be reckoned each way from the place where the bridge was first erected across the lake. The language of the restriction is, that it should not be lawful to erect any bridge or establish a ferry within three miles of the place where the aforesaid bridge shall be erected and built by the company. The. bridge there spoken of was the bridge across the Cayuga lake, and which was to be completed previous to the first of May, 1801; and the place from which the three miles was to be reckoned was the place where that bridge actually was erected within the time limited for that purpose. The moment the bridge was completed, the legislature had a right to grant $ similar privilege to any other person or company, beyond the prescribed limit of three miles each way from that place. But upon the construction contended for by the complainants, if their bridge was destroyed by the ice at any time within the seventy-five years, they were at liberty to build a new bridge at any place between Ithaca and J ack’s rifts, and to prevent all persons crossing within three miles thereof without paying toll to them. It is not necessary to decide whether the company was obliged to re-build on the same site, within the eighteen months after the bridge was destroyed. The act of 1812 has rendered that point perfectly immaterial. I am inclined to think the citizens of the state who were prohibited from crossing the lake within three miles of that placé, or from building a bridge, or establishing a ferry within those limits, had a right to insist upon the re-building of the bridge at the same place. But if the company were authorized to re-build it at any other place within the - six miles, the restricted limits were not thereby extended beyond the three miles north of the place where the first bridge was erected.

There is nothing in the act of 1812 which either expressly or by implication extends the restricted limits beyond what they were under the act of 1799. The original charter was confirmed by the legislature, on condition tha company should erect a new bridge on the site^of the and should keep not only that bridge, but also the one which^fc they had erected over the outlet, in repair during the existence of their charter. It is evident from the .preamble, and from the various provision of that act, that the lmslature only intended to restore the complainants to the p^ileges which they had probably lost by their neglect to re-build a bridge at the East and West Cayuga villages, and to give them the right to take toll at the bridge erected over the ouk let. An extension of the chartered limits to the distance W three miles north of the bridge over the outlet was not necessary for the purposes of the corporation, as they already went a mile beyond the bridge. While the^egislature were imposing so many restrictions upon the company as conditions upon which their charter might be confirmed, and when It was deemed necessary to insert an express prewsion in the third section of the act, permitting them to takF^plI at the bridge over the outlet, notwithstanding the implied provision in the preceding section, I cannot believe they intended to exend the chartered limits two miles farther in that direction. If such had been the intention of the legislature an express provision to that effect would have been found in the act of 1812. In Doe v. Brandling, (1 Mann. & Ryl. R. 611,) Bailey,!, says: “ I consider it an established and highly useful rule in the construction of all acts of parliament of a local and personal nature, to require that the persons soliciting an act of parliament should state in it plainly, distinctly and unequivocally what they mean, in order that the public on the one hand, and the legislature on the other may not be taken by surprise, and may not be left in doubt as to the object and effect of the enactment.” By the preamble of the act of 1812, it appears that the provisions thereof were agreed to by the agent of the complainants. They are therefore entitled to no rights which are not expressly granted, or clearly implied in the act.

The result of this opinion is, that the defendants and their associates are authorized to erect the free bridge at the place wJ^^tbey had commenced building the same. The injunetipKiust be (^solved, and the complainants’ bill is dismissed pvith costs.

I regret that in this case it is not in the power of the court to remunerate the defendants for the loss they have sustained. The injunction has compelledlfhem for a time to suspend operations, to the great damage of their work .whi'ch^vas partially completed ; and' much loss' must have been sustained by the waste and deterioration of materials. Py predecessor understood the rights of the parties different- ; it was therefore his duty to issue, and continue the injunction. The new rules of the court have provided for cases of this kind hereafter, by requiring a bond from the complainant to pay^lhe damages sustained by the defendant, in consequence oían injunction, if the justice of the case turns out to be in favor of the latter. (Rule 31.) If the officer allowing the injunction neglects to take such bond, in a proper case, tW parties liable to be injured by the injunction must make* special application to the court for relief.