text:
    Armour vs. Alexander.
    il Where A. owned the pre-emptive right, under the act of March, 1823, to lot No. 7, and to ten acres of lot No. 9 in the Stockbridge West Hill tract, and B. owned the pre-emptive right to the residue of lot No. 9 ; and A. with the knowledge and consent of B. sold to C. his interest in lot No. 7 and in the ten acres of lot No. 9, and C. obtained the title to lot No. 7 from the_ slate, but was unable to obtain the title to the ten acres of lot No. 9, because B. neglected to pay his share of the amount due to the state, as he had agreed to do; and B. afterwards obtained the passage of an act of the legislature giving him the pre-emptive right to purchase the whole of lot No. 9, upon the same terms as were prescribed in the original act of March, 1823; Held, that the act, giving to B. the pre-emptive right to the whole of lot No. 9, enured to the benefit of C. as to the ten acres; and that C. was entitled to that part of lot No. 9, upon payment of his just proportion 6f the purchase money paid to the state.
    The good will of the state to give to actual settlers the benefit of their improvements, and the pre-emptive right to purchase the lands upon which they have settled, is a fair subject of contract. And such contracts are governed by the same principles as contracts respecting the good will of the renewal of leases.
    1844. March 5.
    Interests in such good will are treated by the court of chancery as valuable interests, and are protected by it accordingly.
    This was an appeal by the defendant from a decree of the vice chancellor of the fifth circuit. James Alexander, the brother of the defendant, owned or claimed to own the pre-emptive right, under the act of March, 1823, to lot No. 7, and to ten acres of lot No. 9 in the New Stockbridge West Hill tract, and the defendant owned the pre-emptive right to the residue of lot No. 9. And with the knowledge and consent of the defendant, James Alexander sold to the complainant his interest in No. 7 and the ten acres of No. 9. The first lot the complainant paid for, and obtained the title thereto from the state; but was unable to obtain the title to the ten acres, because the defendant, who was entitled to the pre-emptive right to the residue of that lot, neglected to furnish or pay his share of the amount due to the state, as he had agreed to do. The defendant afterwards applied to the legislature and obtained the passage of an act giving him the pre-emptive right to purchase the whole of lot No. 9, upon the same terms and condition's as were contained in the original act of March, 1823. And he then refused to permit the complainant to participate in the benefit of that pre-emption upon payment of his share of the purchase money and of the expenses.

      T. Jenkins, for appellant.

      H. Denio, for respondent.
   The Chancellor.

I have no doubt the decision of the vice chancellor was right in this case, upon the settled principles of equity. It is true, that as between the people of the state and these settlers upon Indian lands, the settlers had no legal rights, or any other rights except such as depended upon the good will of the legislature. Still, as between themselves, the good will of the state to give to actual settlers the benefit of their improvements, and the preemptive right of purchase, the exercise of which good will was a matter of frequent occurrence, was a fair subject of contract between them. Contracts in respect to such rights depend upon the same principles as contracts respecting the good will of renewal in leases, where the landlord is in the habit of renewing from time to time upon such terms and conditions as he may think fit to prescribe. And this court constantly treats interests in such good will as valuable interests,- and protects them accordingly. (See Phyfe v. Wardell, 5 Paige’s Rep. 279, and cases there referred to.)

Here, it is evident that the defendant obtained the passage of the act giving him the pre-emptive right to purchase the whole lot, upon the supposed equity arising from the previous act of 1823, and the refusal of his brother to join in the application for the act. That refusal of the brother, however, after he had parted with his interest to the complainant, did not justify the defendant in equity in depriving the complainant of his share of the lot; especially as his right to pre-emption under the previous law had been lost by the neglect of the defendant himself. In the recent case of Felt v. Kinney, (In Chan., Dec. 5th, 1843,) this court went still further, and held that where the rights which two parties, under a state certificate, had in lands, were sold, in consequence of the neglect of both to pay their shares of the money due to the state, the one could not become the purchaser on his own account solely, without giving the other the right to share in the benefit of the purchase, on equitable terms.

But here, the equity of the complainant is much stronger. For the proof shows that the defendant had agreed to pay his proportion of the money to secure the original right of pre-emption, and that owing to his neglect to furnish his proportion of the money the complainant was unable to obtain the title for his ten acres. Whatever may have been the merits of the controversy between the defendant and his brother James, the latter could not confess away or deprive the complainant of any of his rights, after a sale of his whole interest in the land, and with the knowledge of the defendant. And I agree with the vice chancellor, that there is no sufficient evidence that the complainant himself ever intended to relinquish his claim to the ten acres of the lot No. 9; although he had a right to suppose that he would have a claim against James Alexander, personally, if the pre-emptive right to the ten acres should be defeated by the misconduct of the latter. The legislature might, in this case, grant the second pre-emptive right to the defendant, for his own use and benefit, if they thought proper to do so. But it is perfectly evident that they never would have done so upon any others terms and conditions than that the complainant should be entitled to his share of the lot, upon paying his just proportion of the purchase money, if all the facts and circumstances had been stated in the defendant’s petition, correctly and truly, as they appear by the pleadings and proofs in this case ; unless the legislature had been satisfied that a court of equity would compel the defendant to do what was just towards the complainant.

The question whether James Alexander has discharged his claim to payment for the lot, by releasing the surety upon the note, is one between him and the complainant, with which the defendant has no concern. For the complainant’s equitable rights as against the defendant are the same, whether James Alexander does or does not think proper to collect the debt which is due to him.. The decree appealed from must be affirmed with costs ; and the reference which was .directed to a particular master, may be executed by any master in the county of Madison if the master named in the decree is not now in office.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Anderson vs. White and others.
    Where A. filed a bill against S. to procure the title to and possession of a lot of land, and S. prepared his answer thereto, under oath, denying the equity of the bill, but omitted to file and serve it in time, and A. finally obtained a decree pro confesso against him, and afterwards obtained possession of the premises under the decree and conveyed them to W.; and S. subsequent to such conveyance applied to the chancellor to open the decree, and for permission to file his answer and defend the suit, and the chancellor denied the application i pon the ground that the suit could not be further prosecuted in the name of A. after his conveyance to W., and that the decree could not be opened and the parties placed in the same situation they were in before the entry of the decree; and A. died after the argument and before the decision of the motion, and from such decision S. appealed to the court of errors, and that court decided that no appeal could be brought before the suit was revived, and gave S. permission to file a bill to revive, the suit; and thereupon S. filed a bill to revive the suit, and made the grantee and the widow and heirs of A. parties thereto, and alleged in such bill thatthe conveyance by A. to W. was without consideration and fraudulent and void, and prayed among other things that the suit might bo revived, and that he might be permitted to proceed in the defence of the original suit: Held, that S. had an interest in the revival of the original suit; to enable him to review the decision of the chancellor, in denying his motion to open the decree and for permission to come in and defend the suit.

      Held also, upon demurrer to the complainant’s bill, that if S. established his allegations that the conveyance to W. was without consideration and fraudulent, he would then be entitled to a decree to revive the original suit; to enable him to appeal from such decision of the chancellor.
    Where the complainant in a suit assigns all his interest therein to a third person and then dies, his grantee cannot revive and continue the proceedings by a simple bill of revivor. It can only be done, in such case, by an original bill in the nature of a bill of revivor and supplement.
    And where a defendant in such original suit is entitled to revive the proceedings therein, he must do it by a similar bill.
    To entitle a defendant to file a bill of revivor, where the ad verse party neglects to revive, such defendant must show that ho has an interest in the revival of the suit.
    A defendant may revive in all cases, after decree, upon the neglect of the adverse party to do so, where he canbebenefitted by further proceedings in the suit.
    Where there is a decree against a defendant, and the suit then abates by the death of the adverse party, the defendant cannot appeal from such decree until the suit is revived. Such defendant has therefore a right to revive the suit, in case the adverse party neglects to revive, for the purpose of enabling him to appeal, if he has no other remedy and an appeal will lie.
    Whether an appeal will lie to the court for the correction of errors from a decision of the chancellor, resting in mere discretion, refusing to open a decree by default, and to let the defendant in to defend the suit; Quiere ?

      1844. March 5.
    This case came before the chancellor upon a demurrer to the complainant’s bill. The bill was brought to revive and continue a suit originally brought by Daniel Anderson against the present complainant, which suit abated by the death of D. Anderson, after a decree in his favor, and after he had sold and conveyed the premises to R. White, one of the present defendants. The facts, as stated in the complainant’s bill, were substantially as follows : In April, 1836, D. Anderson filed a bill in this court against S. Anderson, the now complainant, to procure the title and possession of 96 acres of land in the county of Niagara, of which land'the latter was in possession. S. Anderson prepared an answer, which was duly sworn to by him, denying the equity of the bill. But the answer was not filed and served in time, and the complainant finally obtained a decree pro confesso for the possession of the premises in controversy, and giving further relief. And the complainant subsequently obtained possession of the land under the decree, and afterwards conveyed the same to R. White, his son-in-law, one of the defendants in the present suit. Subsequent to that conveyance, S. Anderson, the defendant in the original suit, applied to the chancellor to open the decree pro confesso, and to permit him to file his answer and defend the suit. That application was resisted, not only upon the merits but also upon the ground that it was too late to open the decree by default after the complainant had conveyed all his interest, in the subject matter of the suit, to a stranger who was not a party. The chancellor decided that the suit could not be further prosecuted subject matter thereof to White, and that it was impossible in the name of D. Anderson, after he had conveyed the to open the decree by default and to place the parties in the same situation they were in before the decree was entered. He therefore denied the application, upon that ground, without deciding the merits of the defence attempted to be set up, as they appeared in the intended answer and in the affidavits in opposition thereto. And as D. Anderson, the original complainant, had died after the argument of the motion and before the decision thereof, the chancellor direeled the order denying that part of the application to be entered nunc pro tunc as of the time of the argument, in the lifetime of D. Anderson. From this decision S. Anderson, the defendant in that suit, attempted to appeal to the court for the correction of errors ; but that court decided that no appeal could be brought before the suit was revived. And the grantee of D. Anderson not having revived or continued the proceedings, by a bill in the nature of a bill of revivor and supplement, the court gave to the defendant in that suit leave to file such a bill to revive the proceedings as he might be advised was proper.
    This bill was thereupon filed against White, the grantee of D. Anderson, the original complainant, and against the widow and heirs at law of the latter ; in which bill the complainant stated the several, proceedings which had taken place in the suit, and the substance of the original bill and of the answer which was prepared to be put in before the bill was taken as confessed. He also alleged in such bill, that the conveyance by JD. Anderson to White was without consideration, and was fraudulent and void, and that White held the premises during the life of the original complainant for his use and benefit; and that subsequent to his death White had held the same for the benefit of his heirs at law, subject to the dower right of the widow. The complainant stated that he intended to appeal from the order refusing his application to open the decree, but that he could not do so until this suit was revived. He therefore prayed, among other things, that the defendants might answer his bill, without oath; that the original suit which had abated might be revived and be in the same plight and condition that it was in at the time of the abatement; that the present defendants might be made parties in the place and stead of D. Anderson, the original complainant; and that he might be permitted to proceed in the defence of the said original suit, and might have the other relief prayed for in the present bill.
    The defendants put in a joint demurrer, stating as causes of demurrer that the complainant had not made a case by his hill entitling him to have the original suit revived against them, as complainants in the place of D. Anderson ; that it appeared a final decree was entered and that the premises were conveyed to the defendant White, as purchaser, after such decree ; that the bill set forth matters which could not be litigated upon a simple bill of revivor; that process of subpoena was prayed, to appear and answer the bill, contrary to the course and practice of the court; and that the bill was unnecessarily prolix and multifarious, containing matters immaterial and unnecessary to the relief sought.

      W. H. Greene, for the complainant.

      J. Benedict, for the defendants.
   The Chancellor.

The formal objections to the bill cannot be sustained, if the complainant is entitled to succeed upon the merits. The bill is not a simple bill of revivor; as it contains matters which show that a mere bill of revivor could not have been sustained. For the interest of the complainant in the original suit, in the premises in controversy, was actually conveyed by him in his lifetime. And in such a case, if the purchaser of the premises wishes to revive and continue the proceedings, he can not do it by bill of revivor, but he must file an original bill in the nature of a bill of revivor and supplement. (Welf. Eq. Pl. 220. Story's Eq. Pl. 304, § 377, 378.) And where the defendant in the original suit is entitled to revive the proceedings therein, he must do it upon a similar bill, as he can not file a simple bill of revivor, against the grantee of the complainant in that suit. The real question in this case, therefore, is whether the complainant shows such an interest in the revival' and further continuance of the proceedings in the original suit as to sustain the present bill. For the defendant in a suit can in no case file a bill to revive, where the adverse party neglects to do so, unless he shows that he has an interest in the revival of the suit. (Horwood v. Schmedes, 12 Ves. 311.) But it is now settled, in opposition to the opinion of Lord Hardwick, in the anonymous case before him, (3 Atk. 692,) that a defendant is entitled to revive in all cases, after a decree, where he can have a benefit from the further proceedings in the suit, in case the adverse party will not himself revive. In the case of Williams v. Cook, (10 Ves. 407,) Sir William Grant, the roaster of the rolls, very correctly says, “ the good sense is that in every case where a defendant can derive a benefit from the further proceeding he may revive, unless there is a general rule against it.” (See also Welf. Eq. Pl. 212 ; Story’s Eq. Pl. 300, § 372.) As the defendant must revive before he can appeal from a decree against him, where the suit abates before the bringing of his appeal, it follows of course that he has an interest to revive wherever an appeal will lie, and where he would be absolutely without remedy except by a revival of the suit and by an appeal.

In the present case, the complainant does not appear to have any interest whatever in reviving the proceedings in the original suit, except for the mere purpose of enabling him to review the decision of this court, upon the motion to set aside the decree pro confesso and to permit him to come in and make a defence in such original suit. For if the order of this court upon that application is to stand unreversed, the decree, so far as appears from this bill, is absolute and conclusive upon him, not only as regards White the purchaser but also as to the heirs at law of D. Anderson, the original complainant; even if the present complainant is able to prove the allegations in his bill, that the conveyance to White was without consideration and that the premises are in fact held by him for the sole benefit of such heirs at law. Whether the court for the correction of errors will sustain an appeal from a decision of this court resting in mere discretion, as to the opening of a decree by default, is not for me to decide after the conflicting decisions in that court upon the subject. The safer course, in the present case, therefore, is to overrule this demurrer, and to require the defendants to answer. And then if the complainant can establish the allegations in his bill as to the supposed fraud and want of consideration of the conveyance to White, the proper decree to revive the original suit maybe made; so as to enable him to take the opinion of the "court of dernier resort upon the question whether an appeal will lie from the decision referred to, and whether such decision is erroneous.

The demurrer must therefore be overruled, with costs to abide the event of this suit; and the defendants who reside within this state must put in their answers within sixty days after notice of the entry of the order hereon, or the bill must be taken as confessed as to such of them as neglect to answer the same. And such of the defendants as reside out of the state must put in their answers within three months; with liberty to any of the defendants to make an ex parte application to the chancellor to extend the time for answering, upon suEcient cause shown.


text:
    Post & Fellows vs. S. & J. Boardman.
    1844. March 5.
    Where the payee of an usurious note pretended to have sold and transferred the same to a third person, in whose name a suit at law was brought upon the note, whereby the makers of the note were induced to suppose that the payee of the note could be examined by them as a witness in that suit to prove the usury, and when called as a witness at the trial, such payee testified that he was one of the real plaintiffs in interest in the suit, and declined to testify as to the alleged usury ; and from the state of the pleadings he could not be examined as a plaintiff under the act of 1837, for the prevention of usury ; Held, that the defendants in the suit at law could sustain a bill in chancery against the real plaintiffs in the suit at law, for discovery and relief; upon the ground that such defendants had been deceived and defrauded out o^ their defence at law.
    The defendant in a suit at law cannot file a bill of discovery, against the plaintiff and another person who is a mere witness, to obtain a discovery from the latter, in aid of the defence at law ; although the plaintiff in the suit at law has derived his title to the subject matter of the suit from or under the person from whom such discovery is sought.
    This was an appeal from a decretal order of the vice chancellor of the eighth circuit, overruling the separate demurrers of the defendants to the complainants’ bill. The facts upon which the decision of the vice chancellor was founded, are stated in the report of the case when it was before him upon the original bill, and afterwards upon the amended bill. (1 Clarke’s Ch. Rep. 333,524.)

      C. M. Lee, for the appellants.

      E. Darwin Smith, for the respondents.
   The Chancellor.

The court for the correction of errors in the recent cases of Henry v. The Bank of Salina, and of Stevens v. White, decided in September last, has sustained the opinion of the vice chancellor, in this case, that the real plaintiff in interest, as well as the nominal plaintiff upon the record, may be examined as a witness to prove the usury, under the act of May, 1837. The complainants, therefore, would have had a perfect remedy or defence at law, so far as relates to the mere discovery of the usurious nature of the contract upon which their note was given, if they had not been misled by the fraud of these defendants in making a pretended transfer of the note, to one of them who could not prove the facts, and bringing the suit in his name, and then surprising the complainants at the trial by the fact that the note did not belong to him alone, but to him and the original holder thereof jointly. The only question, therefore, is whether this court should permit a trick of this kind to succeed, so as to deprive the complainants of their defence to this note. -

It is said they might have obtained relief by an application to the supreme court for leave to amend, or to put in a new plea upon oath. But I doubt whether that could have been done in that stage of the suit; even if the court had then supposed that a real plaintiff, who was not a party to the record, could be examined under the act of 1837, upon a plea properly verified. It is evident, however, from the decision of the supreme court in the case of The Bank of Salina v. Henry, (1 Hill’s Rep. 555,) which was subsequent to this trial, that if an application had then bcén made to amend the plea it must have been refused, upon the ground that in the opinion of that court the amendment could not benefit the defendants in the suit at law. And such a decision, upon a special motion, could not have been reviewed on a writ of error. At the time this bill was filed, therefore, the complainants had no relief whatever except by the aid of this court. And I think the vice chancellor was right in overruling the demurrers, on the ground that fie now defendants had deceived and defrauded their adversaries out of their defence, in the suit at law, by the false pretence, set up in that suit, that the note had been transferred to the nominal plaintiff so that the assignor might be examined as a witness in the ordinary way.

The objection that the complainants should have filed a bill of discovery, before the trial, in aid of their defence at law, is not well taken. F or as the nominal plaintiff in the suit, who the defendants' in that suit had a right to suppose was the only real plaintiff therein, knew nothing of the usurious contract, a bill of discovery would have been wholly unavailing. And they had no right jto file such a bill against one who was apparently a mere witness, and who, as they then supposed, was not a real party in interest. For any discovery made by a person standing in the situation of a witness merely could not have been used as evidence, against another person, in a suit at law. (Norton v. Woods, 5 Paige's Rep. 251.)

The order overruling the demurrers must therefore be. affirmed with costs; and the proceedings are remitted to the vice chancellor.


text:
    Cole vs. Savage and Chittenden.
    1844. March 5.
    Where A. borrowed money at an usurious rate of interest and gave his bond and mortgage for the money loaned and for the usurious premium, and-B. the lender, afterwards took a note of A., for a part of the usurious premium for the further forbearance of the usurious loan, which note was also signed by C. as the surety of the borrower, and A. subsequently conveyed the mortgaged promises to C. with warranty; and C. afterwards gave a covenant to the lender to pay the usurious bond and mortgage, and subsequently filed his bill for the purpose of having the several usurious securities delivered up and cancelled ; Held, that the complainant, who did not ask for a discovery as to the usury, was not bound to offer to pay the amount which was equitably due upon the usurious securities, as a condition to the granting of the relief sought by his bill.

      Held also, that the covenant given by C. was a cloud upon his title to the mortgaged premises, and that he was entitled to a decree that it be delivered up and cancelled, under the provisions of the act of May, 1837, for the prevention of usury.
    The word borrower, as used in the eighth section of the article of the revised statutes relative to the interest of money, and in the sixth section of the act of 1837, for the prevention of usury, is not confined to" the person to whom the original loan was made; but it embraces his sureties, heirs, devisees and personal representatives. It also embraces a subsequent grantee of premises subject to a usurious mortgage, who took the premises adverse to the claim of the mortgagee, but who subsequently guaranteed the payment of the bond and mortgage, including the usurious premium for the loan.
    A person who purchases the mere equity of redemption in premises upon which there is an usurious mortgage, or who agrees to take the premises from the mortgagor subject to the lien of the mortgage, cannot set up a defence of usury as against such mortgage. Nor can a mere stranger, between whom and the mortgagor there is no privity, set up such a defence.
    But the heir of the mortgagor or a devisee, or grantee of mortgaged premises which are subject to the apparent lien of a mortgage which is void for usuiy, and who holds the premises adverse to the claim of the mortgagee, may set up, as a defence to such claim, that the mortgage is usurious and void.
    This was an appeal from a decree of the vice chancellor of the eighth circuit, allowing a general demurrer to the complainant’s bill for want of equity. The allegations in the bill were in substance as follows : About the 1st of October, 1834, David S.- Cole borrowed of D. M. Chittenden, the defendant’s testator, $1700, upon an usurious agreement that for such loan Cole would deliver to him his bond and mortgage for the sum of $2700, payable in six annual payments, with annual interest, to be paid on the 1st of October in each year; and that if default was made in any of the payments, either of principal or interest, the whole amount of the bond and mortgage should immediately become due. The bond and mortgage were delivered accordingly upon such loan. The first instalment and interest was not paid on the 1st of October, 1835, when it became due. But on the 20th of that month $378 was paid; part of which was applied in payment of the interest of the $2700 for one year, at seven per cent, and the residue was retained by the mortgagee for further forbearance of the $2700 ; he insisting that the whole amount had become due because the instalment was not paid at the day. About the 1st of Oct. 1836, the mortgagee received from the mortgagor $213 in cash, and a note for $600, signed by John E. Cole, the complainant, as security ; the whole of which was retained as a further usurious premium, except the interest for one year at seven per cent, which was endorsed, and $150 which was loaned to D. S. Cole.
    In the spring of 1837, D. S. Cole conveyed the mort■gaged premises to the complainant, with warranty. And the mortgagor having failed and"involved the complainant as his security, and the $600 note signed by the latter as surety to Chittenden not being paid when it became due, in October, 1837, the complainant was called upon to pay such note, and also the interest upon the $2700 bond and mortgage from, the 1st of October, 1836. It-was thereupon agreed that Chittenden should advance to the complainant $726 and should take his bond and mortgage on other property for $1600 ; which bond and mortgage were given for the amount so advanced, and for the note and the interest on the $2700 bond and mortgage to the iSth of Oct. 1837, and also included about $32 for extra interest. It was also a part of the same agreement that the complainant should guarantee the payment of the $2700 bond and mortgage in three years, with semi-annual interest; and that if the interest should not be paid as it became due, he should be immediately liable upon his.guaranty, for the payment of the whole$2700 and interest. The complainant gave the $1600 bond and mortgage, and executed the guaranty accordingly ; and he afterwards paid the interest on the $2700 bond and mortgage up to the 18th of October, 1838. Chittenden died in February, 1839 ; and the complainant having previous to that time learned the usurious nature of the $2700 bond and mortgage, ceased to pay the semi-annual interest according to the terms of his guaranty. The defendants, who were the executor and executrix of the deceased mortgagee, thereupon advertised the mortgaged premises for sale under a statute foreclosure of the $2700 mortgage. The complainant then filed his bill against them in this cause, stating the facts as above detailed, and waiving an answer on oath from the defendants. And he prayed for a decree that the $2700 bond and mortgage, and his covenant to guaranty the payment thereof, might be surrendered up and cancelled, and for a perpetual injunction against the statute foreclosure ; and for such further or such other relief as the nature of his case might require, or as should be agreeable to equity. The vice chancellor decided that the complainant was not a borrower, and was not therefore entitled to relief without offering to pay the amount which was justly and equitably due upon the $2700 bond and mortgage. {See his opinion, 1 Clark’s Ch. Rep. 484.)

      M. F. Delano & J. R. Elwood, for the appellant.
    The complainant, as vendee of the mortgaged premises, is entitled to file his bill to have the mortgage cancelled. (1 R. S. 760, § 5. 10 John. 185. 4 Peters, 228. 13 Mass. Rep. 518.) He is entitled to the relief prayed for in his bill, upon the ground of usury, without paying or offering to pay any part of the interest or principal money secured by the mortgage. (3 Paige, 537. 11 Wend. 532. Laws of 1837, p. 487. 1 R. S. 760, § 6, 7, 8. 1 R. L. of 1813, p. 64.) The complainant is a borrower within the meaning of the 8th section of 1 R. S. 760, and of the 6th section of Act of 1837, p. 487. He offers to show the usury by proof, and does not ask for a discovery from the defendant. (7 Paige, 560, 582.) The complainant is at least entitled to have the excess of interest included in the mortgage and actually paid deducted therefrom. (7 Paige, 417. 1 John. Ch. 57.) And he is entitled to have his guaranty of the mortgage set aside. This was executed after the passage of the usury act of 1837. (7 Paige, 137. 4 Id. 537.) The demurrer being to the whole bill, if bad in part it is bad for the whole. The different causes of complaint stated in the bill arise out of the same transaction ; and the relief founded thereon, which is prayed for, is of the same general character. This is a proper case for a bill with a double aspect, either to cancel the mortgage or to have it reduced. (4 Paige, 537. 7 Id. 413.)

      S. Matthews & F. M. Haight, for the respondents.
    The complainant, before he can avail himself of the statute of usury, must bring the money actually loaned with interest into court, or offer to pay it. The bill in this cause is defective for the want of an offer to pay the amount which is equitably due. (1 John. Ch. 367. 5 Id. 122. 11 Wend. 330. 1 R. S. 761. Sess. Laws of 1837, p. 487.) The bill cannot be sustained as one with a double aspect. The relief sought by the two cases presented by the bill is different and inconsistent. (Story on Plead. 212. 2 Paige, 396. 4 Id. 537. Coop. Pl. 14. 13 Ves. 114.) If the bill is to be regarded as a bill to redeem, the amount due should be paid or offered to be paid. The complainant being a purchaser of the equity of redemption merely, cannot be permitted to set up usury in the mortgage. (9 Mass. Rep. 45. 13 Id. 518. 15 Id. 99. 10 Wheat. 367. 7 Paige, 615. 5 John. Ch. 565. 15 Wend. 502. 20 John. 292. 1 Sim. 482.)

   The Chancellor.

Taking the allegations in this bill to be true, and for the purpose of deciding the questions arising upon this demurrer they must be presumed to be so, as they are sworn to upon the information and belief of the complainant, this is a most gross and extortionate case of usury ; which usury is not only included in the bond and mortgage itself but also in the guaranty of the complainant, endorsed upon such bond and mortgage in October, 1837. For the guaranty is for the payment of the whole $2700, and interest thereon semi-annually from that time; although, there was less than $800 when such guaranty was given, honestly and equitably due, for the money originally loaned with legal interest thereon, after deducting the several payments which had been made including the $450 of the note signed by the complainant as surety j the whole of which note is secured in the $1600 mortgage given by the complainant upon other lands.

This being a general demurrer to the whole bill, if the complainant was entitled to any relief whatever, either as to the original bond and mortgage or as to his covenant to pay the $2700 and interest from the 18th of October, 1837, the demurrer should have been overruled.

As a general rule, it is perfectly well settled that the court of chancery will not lend its aid to enforce a penalty or forfeiture, but will leave the complainant to his defence or remedy at law. And in the case of Mason v. Gardiner, (4 Bro. C. C. 436,) the court allowed a demurrer to a bill to have usurious securities delivered up and cancelled, because the complainant, in such bill, had not offered to pay the amount justly due. The same principle was acted on by this court in the case of Fanning v. Dunham, (5 John. Ch. Rep. 122 ;) although the appropriate relief was given in that case, upon pleadings and proofs, as though the usual offer, to pay what was equitably due, had been contained in the bill. In this case, therefore, if the rule of this court was unchanged by the revised statutes, or by the act of May, 1837, to prevent usury, the complainant should have been permitted to amend his bill by inserting therein a formal offer to pay the balance which is justly due, for principal and legal interest on the $1700 actually loaned, after deducting therefrom the several sums which have been received from the original mortgagor, or from the complainant, on account of such loan, or for usurious premiums. And the order appealed from should be modified to that extent.

The conclusion at which I have arrived, however, is that under the provisions of the revised statutes, as well as under the act of May, 1837, the complainant is not bound to make such an offer in his bill, where, as in this case, he asks for no discovery of the usury, but merely seeks relief upon such testimony as he may himself produce to establish the alleged usury ; and that the word borrower, as used in the eighth section of the title of the revised statutes relative to the interest of money, (1 R. S. 773,) and in the fourth section.of the act to prevent usury, (Laws of 1837, .p. 487,) is not to be restricted to the individual to whom the original loan was made. To understand the sense in which the word borrower was used by the legislature, it may be necessary to refer to this eighth section of the revised statutes as it was originally reported by the revisers, in connection with other provisions reported by them. On referring to the original report of chapter four of the second part of the revised statutes, by the revisers, it will be seen that they proposed,merely to avoid the bonds, notes, or other securities, given for the loan or forbearance of money, See. except negotiable notes and bills in the hands of bona fide holders for value ; but to allow the lender of-the money, or the assignee of a security given for the same, to recover back the money actually loaned, without any interest thereon. To carry out the principle of depriving the lender of any interest upon the amount loaned-upon the usurious contract, but to give him back his money without interest, the revisers reported a section in these words : “ Whenever the borrower of any money, goods, or things in action shall file a bill in chancery for a discovery of the money, goods, or things in action taken or received in violation of either of the foregoing provisions, it shall not be necessary for him to pay any interest whatever on the sum or thing loaned, but shall deposit with the register or clerk of such court only the principal sum admitted by him to have been loaned.” But this new principle of allowing the usurer or his assignee to recover back the sum actually loaned, even without any interest, was not sanctioned by the legislature. The other sections reported by the revisers on that subject were therefore altered, so as to restore the old law of forfeiture of the whole amount loaned upon a usurious contract, except in the case of negotiable bills and notes which had gone into the hands of bona fide holders for value. And to make the enforcement of the forfeiture by the aid of this court, the more effectual, the legislature struck out of the section which they adopted as the eighth section of the title of the revised statutes relative Jo the interest of money, (1 R. S. 773,) the clause, which had been inserted therein by the revisers, requiring a deposit of the sum loaned, and inserted the last clause of that section, as it now stands, in these words : "Nor shall any court of equity require or compel the payment or deposit of the principal sum, or any part thereof, as a condition of granting relief to the borrower in any case of a usurious loan forbidden by this chapter.” The effect of the first clause of this section, as passed by the legislature, was to compel the defendant to answer and make a discovery as to the alleged usury upon paying or offering to pay the sum loaned without interest. And this last clause, which was substituted by the legislature instead of that reported by the revisers, was evidently intended to alter the principle previously acted on by this court, not tó give relief to the complainant, even where no discovery was necessary, except upon the condition of his paying the sum loaned with legal interest thereon. It is not improbable that the legislature intended to go as far as they afterwards didin the act of May, 1837, and that they overlooked the fact that the first clause in the section, which related to a discovery of the usury, "only excused the complainant from paying or offering to pay the interest on the sum loaned. But as that clause of the section was in violation of a sound principle of the common law, that no man shall be called upon to answer upon oath to any matter which may criminate himself or subject him to a penalty or forfeiture, I considered myself bound, in the case of Livingston v. Harris, (3 Paige’s Rep. 528,) to give it a strict construction. And such construction was confirmed by the court for the correction of errors in that case upon appeal. (11 Wend. Ref. 329, S. C.) But as the last clause of the section merely relates to the forum in which relief might be sought to declare the forfeiture, which the law has created, there was no reason why the rules which regulate the construction of remedial statutes in general should not be applied in carrying out the principle which the legislature has so explicitly declared. That principle is, that in cases of usury where the borrower comes into this court merely for relief against the usurious contract, the court shall no longer refuse its aid, upon the ground that he does not offer in his bill to pay the amount actually loaned and remaining unpaid. For such an offer would be entirely useless, since the legislature has said the court shall not compel him to comply with that offer, as a condition of its granting relief against the usurious contract.

It is true, the word “ borrower” alone is found in this section. And if the statute is to be construed literally, by restraining the term borrower to the particular individual to whom the loan is actually made, the remedy which the legislature intended to give to a complainant, who comes into this court for relief against a usurious security, will benefit neither the surety nor the grantee or heirs or devisees or personal representatives of the borrower. It is impossible to believe, however, that such could "have been the intention of the legislature. And I have no doubt that this new principle, declared by the legislature in the last clause of this section, should be extended to a complainant claiming under and in privity with the original borrower, as well as to the borrower himself. A remedial act is to be construed liberally to carry into effect the intention of the legislature; and it may be extended by construction to other cases within the same mischief though not within the words of the statute. Thus the statute of 9th Richard 2d, chapter 3, which gave a writ of error to the reversioner, upon a recovery against the tenant for life, tenant in dower, tenant by the curtesy, or tenant in tail after possibility of issue extinct, was held to extend to a remainderman ; although the reversioner alone was mentioned in the statute. (Winchester’s case, 3 Coke’s Rep. 4.) And numerous cases are to be found in which remedial statutes have been held to extend to other persons, or other things, than those expressly mentioned in the statute; where the principle of the statute, and the mischief intended to be remedied, was equally applicable to them. (See Keilwey’s Rep. 96. 1 Coke’s Rep. 256. 1 Plow. Rep. 36. 2 Coke’s Inst. 43, 152, 382.)

The view I have taken of the provision of the revised statutes on this subject, renders it unnecessary for me to consider whether the act of May, 1837, to prevent usury, applies to the case. It will therefore be sufficient to say, in reference to that question, that the third section of that act appears to have been intended to reach cases arising under the original provisions of the revised statutes, as well as those which should thereafter arise under the substituted provisions contained in the statute of 1837. And the guaranty, which was given by the complainant in the fall of 1837, and which was itself void for usury, was clearly a case arising under that act. That guaranty, which contained a covenant to give a mortgage upon the premises, to secure the payment of the whole $2700, was a cloud upon the complainant’s title, and impaired the value of his property. He therefore has a right, under the fifth section of the act of 1837, to have that guaranty delivered up and cancelled.

A party who purchases the mere equity of redemption in mortgaged premises, and who agrees to take the premises subject to the lien of the mortgage, cannot set up a defence against such mortgage, on the ground of usury, which his grantor never intended to insist upon. Nor can a mere stranger set up such a defence. But it is well settled, in this state at least, that the heir, or devisee of the mortgagor, or the grantee of premises which are subject to the apparent lien only of a usurious mortgage, being in privity with the mortgagor, may set up any defence which the mortgagor himself could have done. (Jackson v. Domin ick, 14 John. Rep. 435. Lloyd v. Scott, 4 Peters’ Rep. 205. Dix v. Van Wyck, 2 Hill's Rep. 522. Post v. Dart, 8 Paige's Rep. 640.) The complainant, therefore, by the 6 , 1 . r . ’ ’ J conveyance of the premises in question from the mortgagor, with warranty, in the spring of 1837, became entitled to all the rights which his grantor previously had in the premises. And among the rights thus acquired was the right to file a bill in this court, to remove the cloud upon the title created by this usurious and void mortgage.

The decision of the vice chancellor allowing the demurrer to the complainant’s bill, was therefore erroneous, and must be reversed, with costs to abide the event of this suit. And the demurrer must be overruled with costs to be paid by the defendants. The defendants must pay such costs, and put in their answer within forty days after service of the decretal order to be entered upon this appeal; or the complainant’s bill may be taken as confessed against them.

         But see Post v. The Bank of Utica, decided by the court for the correction of errors, December, 1844.


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    Fisk and others vs. The Keeseville Woollen and Cotton Manufacturing Company and others.
    1844. March 5.
    Where a bill was filed to close up the concerns of a manufacturing company, which was alleged to have been dissolved, in fact, upon a particular day, and a decree was made for the benefit of creditors as to all debts which were due on the day of the alleged dissolution; Held, that a creditor who had commenced suits to recover debts due from the corporation, and who had obtained judgments therein before the decree, but after the time of dissolution mentioned in the bill and in the decree, was equitably entitled to his costs in those suits up to the time when he could have come in under the decree ; but that, l.y the terms of the decree, the master was not authorized to allow costs which had accrued subsequent to the day upon which the corporation was alleged to have been dissolved in fact.
    The bill in this case was filed against a manufacturing corporation and its stockholders, by the complainants, in behalf of themselves and all other creditors of the corporation, to close up its concerns; and to charge the stockholders to the extent of their several interests in the capital stock, or to so much thereof as might be necessary to pay the debts of the corporation. The bill alleged that the corporation became dissolved in fact, on the 24th of March, 1843. And in September of the same year a decree was entered accordingly, upon the bill taken as confessed, referring it to a master to take an account of the debts of the corporation due at the time of its dissolution on the 24th of March, 1843, and allowing all the creditors to come in and prove their debts under the decree. Two judgments were recovered against the corporation in May, 1843,-upon suits commenced about the first of March, for debts then due and owing by the corporation. And the question which arose in this case, upon a petition to correct the master’s report, was whether the costs of the suits in which such judgments were obtained could be proved, under the decree, as a part of the debts due from the corporation at the time of its dissolution; the master having allowed the petitioners the amount of the original debts and interest but rejected the costs.

      A. K. Hadley, for the petitioners.

      S. J. Cowen, for the complainants and stockholders.
   The Chancellor.

Upon the argument of this case I had a very strong impression that the decision of the master was wrong, notwithstanding the decision of the supreme court in Bailey & Storm v. Bancker, (3 Hill's Rep. 188.) In that case, the decision is put upon the particular phraseology of the statute under which the personal liability of the individual stockholders was created. And Mr. Justice Bronson, in his opinion, admits that the construction which the court has been compelled to put upon the statute is contrary to the justice of the case. So in this case, at the time when the suits at law were commenced against the corporation by the petitioners, it does not appear that the corporate property had been exhausted, or its business so interrupted as to authorize the petitioners to file a bill against the company and its stockholders for the recovery of their debts. They were in justice and equity, therefore, entitled to their costs, at least up to the time when they could have proceeded in this court. And if the fact of the recovery of these judgments had been known at the time of the making the decree in this cause, I think a provision should have been inserted, in the decree, allowing creditors thus circumstanced to come in and prove for their costs at law, as a proper charge upon the corporation and its stockholders.

But upon examining the terms of the decree under which the petitioners and other creditors have' come in to prove their debts, I think the master was not authorized to allow for costs which were not an actual debt against the corporation on the 24th of March, 1843. The decree declares that the corporation became insolvent and was dissolved on that day; and it directs the master to take an account of the complainants’ debts against the corporation and of the debts due at that time to all other creditors of the corporation who should elect to come in under the decree. This necessarily precludes the master from allowing any thing to a creditor coming in under that decree, except what can fairly be considered a debt at the time when the decree declares the corporation to have been dissolved. For he could not go beyond the decree of the court and provide for a case which had been overlooked in drawing up the decree. The complainants’ solicitor, to whom the claims of the petitioners were entrusted, was therefore right in supposing that the decision of the master was correct, and that it would be improper to subject them to the risk of being charged with further costs by excepting to the master’s report. He also had reason to suppose, from the decision of the supreme court in the case before alluded to, that these costs, which were adjudged to the petitioners, in their suits against the corporation, subsequent to the time of its dissolution as stated in the bill, could in no event be charged upon the stockholders individually, upon the facts which the stockholders had admitted by suffering the bill to be taken as confessed.

The application to correct the report must therefore be denied, upon the merits, without reference to the form of the application. But under the circumstances of this case I shall not charge the petitioners with the costs of opposing such application.


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    Marsh vs. Pike and others.
    1844. March 5.
    Where the owner of land gives a bond and mortgage thereon, and after-wards sells the equity of redemption to a third person who agrees to pay such bond and mortgage, and the mortgagor is afterwards compelled to pay the mortgage debt to the owner of the bond and mortgage, such mortgagor is entitled to bc.substituted in the place of the mortgagee as to the lien of the latter upon the mortgaged premises for the payment of the debt.
    And where such grantee of the mortgagor has also conveyed the premises to another person who has agreed to pay off the bond and mortgage, such agreement will enurgto the benefit of the mortgagee, as a security received by bis debtor for his benefit and indemnity.
    Where the mortgagor sells the mortgaged premises to a third person who promises to pay off the bond and mortgage and to indemnify him, such mortgagor cannot compel the mortgagee to file a bill against such third person to foreclose the mortgage, and to compel the latter to pay the deficiency.
    But such mortgagor may file a bill in chancery against the mortgagee, and the subsequent grantee who has assumed to pay the debt, to have the debt paid to the mortgagee by such grantee, or from the proceeds of a sale of the mortgaged premises.
    This was an appeal by the defendant Towle from so much of the decree of the vice chancellor of the first circuit as directs the appellant to pay and discharge the bond and mortgage given by the complainant to the defendant Pike, in exoneration and discharge of the liability of the complainant j and as gives a remedy over against him, by the defendant McLean, if the latter should be compelled to pay the amount due under such decree.

      N. Dane Ellingwood, for the appellant.
    The complainant cannot be deemed a surety for the appellant Towle, as there exists no privity of contract between them. The complainant has his action at law against the defendant McLean upon the covenant of the latter to pay off the mortgage 5 and a like action at law enures to McLean against Towle, upon Towle’s covenant to pay off such mortgage. But the complainant has no remedy at law or in equity against Towle to compel him to pay off the mortgage. There is no averment in the bill that McLean is insolvent, or any other suitable averment, in order to lay the foundation of a suit in equity, with the view to make the property itself liable for the debt in question, and naught appears but that the complainant might have had an ample and Safe remedy at law.

      George White, for the respondent.
    The appellant is personally liable for any deficiency that may remain, after applying the proceeds of the sale of the mortgaged premises in payment of the mortgage. The appellant is also primarily liable as between himself and McLean, his grantor, who is personally and primarily liable before Marsh, the respondent. This primary liability enuring to the respondent’s benefit, he may compel the appellant to discharge it.
   The Chancellor.

The facts in this case are not disputed j and the only question is whether the complainant was entitled to the relief granted as against the defendant Towle, upon these facts : In January, 1839, the complainant, who was the owner of lot No. 29, Fourth-street, in the city of New-York, gave to the defendant Pike his bond, conditioned for the payment of $3000 in three years, with interest thereon, payable semi-annually. In April, 1841, the complainant conveyed the mortgaged premises to the defendant McLean, subject to the mortgage, the amount of which was deducted from the purchase money, and which mortgage McLean agreed with the complainant to pay off and discharge. And in August of the same year McLean sold the premises to the defendant Towle, subject to the mortgage as a part of the consideration of the conveyance, and which mortgage Towle agreed to pay off and satisfy. After the mortgage became due, the complainant called upon Towle to pay off and satisfy the bond and mortgage, so as to relieve him from his responsibility upon his bond ; but he neglected to do so. The effect of these several conveyances and agreements is, in equity, to place the complainant in the stituation of a surety for the payment of the bond and mortgage, and to make the defendants Towle and McLean the principal debtors as to him; the first being primarily and the latter secondarily liable to him for the payment of the debt.

The complainant, therefore, if he had paid the bond and mortgage to Pike, would have been entitled to be substited in Pike’s place, not only as to the remedy against the land but also as to the equitable claim against McLean and Towle who had agreed to pay off the mortgage. This, however, was not his only remedy ; although the assistant vice chancellor rightly decided that the complainant could not compel his creditor to file a bill of foreclosure against the persons to whom the premises were subsequently conveyed, when there was no good reason why the complainant did not pay his bond according to his agreement, and take an assignment of the bond and mortgage, and proceed against the land and the subsequent grantees thereof, for his indemnity. For Marsh has the right to come into this court to compel such subsequent grantees, as to whom he is in the situation of a mere surety, to pay off and discharge the debt for his protection and indemnity. (Warner v. Beardsley, 8 Wend. 199. Lee v. Rook, Mose. Rep. 318. Ranelaugh v. Hayes, 1 Vern. Rep. 130.) Here, it is true, McLean was the person who had agreed directly with the complainant to pay off and discharge the mortgage, for his protection and indemnity. But as Towle the appellant had ^entered into a similar agreement with McLean, and was moreover the owner of the mortgaged premises, he was properly joined in the suit. And the decree was right in giving to McLean a remedy over against Towle who was in justice and equity bound to pay off and discharge the debt, as between himself and all the other parties to the suit.

The part of the decree which is appealed from is therefore affirmed, with' costs.


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    Farnham and Clark vs. Campbell.
    1844. March 5.
    A judgment creditor, by filing a creditor’s bill after the return of an execution unsatisfied, obtains a lien upon the rents and profits of the real estate of his judgment debtor which accrue during the fifteen months allowed by law to redeem the premises from a sale by the sheriff upon execution; and satisfaction of the complainants’ judgment may be decreed out of such rents and profits.
    A judgment creditor, after exhausting his remedy at law, may file his bill in chancery to obtain satisfaction of his debt out of any beneficial interest of his debtor in real property, as well as in personal estate, which cannot be reached by execution at law.
    This was an appeal from so much of the order of the vice chancellor of the first circuit, appointing a receiver upon a creditor’s bill, as reserved to the defendant the use and rents and profits of all his real estate during the fifteen months allowed by law to redeem such real estate from a sale by the sheriff upon execution.

      B. D. Silliman, for the appellants.
    The complainant is entitled to all the property of the defendant, (except such as is exempt from execution,) which cannot be reached by execution. This right includes the rents and profits of land for the fifteen months subsequent to the sale, thereof under an execution against the defendant. The law .exempts debtors from imprisonment, and exempts from execution a considerable amount of their personal property. All their property beyond such exemption must be devoted to the payment of their debts. No debtor can retain, as against his creditor, any property except such as is exempted from execution, or such as is held in trust for him under a trust created by some other person. (2 R. S. 290 to 292, § 41.) A creditor’s bill proceeds on these principles. In Edmeston
      v. Lyde, (1 Paige, 691,) the chancellor says, " the principle being established that every species of property belonging to a debtor may be reached and applied to the satisfaction of his debts, the'powers of this court are perfectly adequate to carry that principle into full effect.” The 192d rule authorizes the receiver to compel all the tenants of the real estate of the judgment debtor to attorn to him. Chancery will compel the debtor to apply his lands and other property in another state to the payment of his debts ; also his equitable interest, even in trust property which is not within the exception in the statute. (3 Paige, 234.) In foreclosure cases, where the mortgaged premises are an inadequate security, the court will, before decree, apply the rents and profits in payment of the mortgage debt. In a creditor’s suit the court decrees satisfaction of the debt out of the real as well as the personal property of the debtor.

      C. B. Moore, for the respondent.
    The revised statutes reserve to the judgment debtor the use of his real estate intermediate a sale under execution and the expiration of the period for redemption, and protect it from being applied in payment of the judgment in a creditor’s suit founded thereon. The defendant’s right and title is not divested until the time of redemption expires. (2 R. S. 296, § 61.) The revised statutes do not authorize the court of chancery on creditors’ bills to decree satisfaction of judgments out of real estate. (2 R. S. 102, § 41, 42.) The use of the premises by the debtor for the fifteen months after a sale under an execution was deemed a necessary encouragement to the debtor, to prevent the property from being left uncultivated. (2 R. S. 260, § 22.) And without such use the right of redemption would be a mere mockery.
   The Chancellor.

The reason why no opinion was expressed by this court, upon the question now under consideration, in the case of the Albany City Bank v. Schermerhorn, (9 Paige’s Rep. 379,) was not because I had any doubts on the subject, but because the question did not arise upon the proceedings then before me. The object of the legislature, in giving to the owner of real estate sold on execution the right to redeem the same within a limited time, was not to give to an insolvent debtor the rents and profits of his property during fifteen months, to the prejudice of the just rights of his creditors ; but it was to secure a sale of the property for something like its real value. It is well known that previous to the passage of the redemption law, real estate in the country, when sold upon execution, was generally bid in by the creditor for a mere nominal price; leaving the judgment still standing against the unfortunate debtor and his future earnings for nearly its whole amount, although the actual value of the property was frequently more than the whole amount of the plaintiff’s debt and costs. But under that law, which allowed the right of redemption to the defendant, and to his other creditors who had obtained liens upon his property, the owner of the oldest judgment was compelled to bid something like the cash value of the property, to entitle him to the benefit of the lien of his judgment thereon as against other creditors. No injustice, therefore, is done to the creditor by making it necessary for him to bid to the amount of the cash value of the property, subject to the right of redemption and of the possession of the premises for the fifteen mon ths, to obtain the benefit of the prior lien of his judgment; where the property, subject to such right, is worth enough to pay his whole debt and costs. But where the present value of all the debtor’s property with the right to the immediate possession thereof, is insufficient to satisfy his honest debts, it would be manifestly unjust to give the debtor the whole rents and profits of his property for fifteen months, leaving a part of the debts due to his creditors unpaid. And it not unfrequently happens that the debtor who thus attempts to retain the use of a portion of his property, when the whole is not sufficient to satisfy the just claims of his creditors, does it at the expense of the honest mechanic or laborer ; the recovery of whose debt may be necessary to save himself from bankruptcy and his family from want. Courts of justice, therefore, have no right to presume that the legislature intended to protect any part of the debtor’s property from the just claims of his creditors. I admit the power of the legislature over the remedies of the creditor is very broad. But until they say so, in terms which cannot be misunderstood, it is our duty to suppose they could not have intended to interfere with the just rights of either debtor or creditor in prescribing the remedies of the latter. And upon what principles of justice or equity can the debtor claim to retain the whole rents and profits of a large real estate, for the period of fifteen months, when such rents and profits are necessary to pay the debts which he honestly owes to his creditors 1

Independent of the provisions of the revised statutes, the court for the correction of errors, in the case of Hadden v. Spader, (20 John. Rep. 554,) held that a judgment creditor, whose execution had been returned unsatisfied, might come into chancery to reach an interest of the debtor in property which could not be sold under the execution at law. And in the case of Edmeston & Ridde v. Lyde & Walton, (1 Paige’s Rep. 637,) which was decided the year before the revised statutes went into operation, this court held that the judgment creditor could file such a bill here to reach an interest of the debtor in real estate. Although the provision of the revised statutes speaks of decreeing satisfaction out of personal property, money or things in action, whether the same were originally liable to be taken in execution or not, it is every day’s practice to decree satisfaction of such judgments out of beneficial interest of the judgment debtor in real property, which interest cannot be reached by execution at law. And such is the nature of the interest sought to be reached in the present case.

The exception, in the order of the vice chancellor, is therefore erroneous, and such order must be reversed, with costs. And the defendant must be directed to assign and deliver over the excepted property to the receiver, including the rents and profits thereof which have accrued or become due subsequent to the filing of the complainant’s bill, as well as those which were due before ; and the tenants must be directed to attorn to the receiver and pay the rents to him. And the proceedings are remitted to the vice chancellor.


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    Delaplaine vs. Lawrence, administrator, and others.
    1844. April 2.
    An order of a surrogate vacating a sale of real estate made by an administrator under a previous order of such surrogate, is an order from which the purchaser at such sale, who has complied with the terms of the sale, or any other person aggrieved thereby, may appeal to the court of chancery.
    If an appearance before the surrogate, upon the application to confirm the sale, is necessary on the part of the purchaser, to give him the right to appeal from an order vacating the sale, the appearance of the administrator in behalf of himself and such purchaser is a sufficient appearance to give the latter such right.
    In sales made by masters, under decrees and orders of the court of chancery, the purchaser who bids off the property and complies with the terms of sale is considered as having an inchoate right, which entitles him to a hearing upon the question whether the sale shall be set aside. And if the court errs, by setting aside the sale improperly, the purchaser has the right to appeal to a higher tribunal.
    It seems that where a purchaser at a sale under a surrogate’s order desires notice, to enable him to attend before the surrogate and litigate the question of confirmation, he should file a caveat and request that he may be summoned, or notified of the time and place of hearing, when the report of sale shall be brought before the surrogate for confirmation.
    This was an application to dismiss the appeal of J. F. Delaplaine, one of the purchasers of a part of the real estate of the late J. Lawrence deceased, from an order or decree of the late surrogate of New-York vacating the sale made by the administrator. By a previous order of the surrogate, it appeared that the decedent’s debts exceeded $400,000 and the administrator was directed to sell his real estate, consisting of a great number of lots in the city of New-York, for the payment of such debts. The administrator thereupon advertised the property for sale at public auction, and sold the same, or a very considerable part thereof. Among other property thus sold was a tract of about eight acres, called the Turtle Bay property, fronting on 47th, 48th and 49th streets and upon the First avenue ; which tract was divided into 109 lots and fractional lots, and sold in parcels. The appellant became the purchaser of 24 of these lots and fractional lots, at different prices; and Otis T. Peters purchased 34 others of these lots, which he after-wards transferred to the appellant with the assent of the administrator. The residue of the lots in that tract were struck off in parcels to six or seven different purchasers. The confirmation of the different sales of the decedent’s property was opposed by the respondent W. B. Lawrence, one of the heirs at law. And in behalf of his mother, W. B. Lawrence offered ten per cent advance upon the aggregate amount of the sales of the lots in the Turtle Bay tract, provided the whole tract should be put again up and sold in one parcel. The surrogate confirmed the sale as to all the other property. But he set aside the sale of all the lots in the Turtle Bay tract, and directed a resale of that property in one parcel—the respondent C. B. Lawrence paying into court the ten per cent and giving security that the property upon a resale should produce ten per cent advance, over and above the expenses of the resale. From the part of the order of the surrogate directing a resale, Delaplaine as one of the purchasers, and as assignee of the rights of Peters another purchaser of lots in the Turtle Bay tract, appealed to the chancellor.

      J. Rhoades, for the appellant.

      J. V. L. Pruyn, for the administrator.
   The Chancellor.

The neglect of the appellant to procure the transcript within the time prescribed in the 118th rule is satisfactorily explained, and was not owing to any fault on his part. The only question necessary to be considered, upon this application, therefore, is whether a purchaser who has bid off property at an administrator’s sale, and has complied with the terms of the sale on his part, can appeal to the chancellor from an erroneous decision of the surrogate setting aside such sale. I say an erroneous decision ; for, upon this application, this court must assupae that the appellant will be able to show, upon the hearing of the case, that the decision appealed from was erroneous, if such an appeal will lie in any case.

It is said the appellant did not appear as a party before the surrogate, upon the application to confirm the sale on the return of theadministrator, and that he cannot therefore appeal. The statute gives no directions as to the notification of any person interested in the estate, or in the confirmation of the sale, to attend the surrogate upon the return of the proceedings by the executor or administrator. But it is evident that the legislature contemplated that there might be litigation before the surrogate upon the question as to the propriety of a confirmation. And the affidavit of the appellant states that this administrator promised to endeavor to procure the confirmation of the sale; which he undoubtedly did endeavor to do, in good faith. If an appearance before the surrogate was necessary,-therefore, to enable the purchaser to appeal, which I think it was not, the appearance of the administrator in behalf of himself and the purchasers was sufficient.

In sales made by masters, under decrees and orders of this court, the purchasers who have bid off the property and paid their deposits in good faith, are considered as having acquired inchoate rights, which entitles them to a hearing upon the question whether the sales shall be set aside. And if the court errs, by setting aside the sale improperly, they have a right to carry the question by appeal to a higher tribunal. Perhaps in a proceeding of this kind, before the surrogate, where the purchaser wishes to have notice, so as to enable him to attend and litigate the question as to the confirmation, he should file a caveat and request that he may be summoned or notified of the time and place of hearing. But here, the administrator himself appeared, in behalf of all the purchasers, to obtain a confirmation of the sale. And the appellant states, that he and another purchaser whose right he subsequently acquired, complied with the conditions of the sale, by paying the auctioneer’s fees, and ten per cent upon the amount of their respective purchases.

If the Turtle Bay tract was properly sold in parcels, by the administrator, and not as one entire tract, in case any separate lots, or parcel of lots sold together, were bid off at the full value thereof, I am inclined to think that the purchase as to that part of the property should have been confirmed ; although other parcels of the premises were sold so far below their value that the aggregate amount of the purchases of the whole 109 lots, made by different persons, was less by ten per cent than the actual value of the entire tract. That, however, is a question which will more properly arise upon the consideration of the appeal upon its merits. And it is only alluded to here because, from the affidavit of the appellant, it appears that one of the respondents, and the only one who resisted the confirmation of the report, endeavored to persuade the appellant that the lots purchased by him had been bid off at prices which were beyond their actual value.

The statute, allowing appeals to this court from the orders, decrees, and sentences of surrogates, is very general in its terms. It declares that such appeals may be made in all cases except where provision has been made in the statute for appeals to circuit judges, and appeals from orders concerning the admeasurement of dower. (2 R. S. 610, § 104.) There can be no doubt, therefore, that the order of the surrogate vacating the sales of the whole 109 lots, which the decree itself declares to have been made by the administrator in a fair and legal manner, and directing the whole to be sold in one entire parcel, was an order from which any person aggrieved thereby had a right to appeal. And I think this purchaser had such an interest in the confirmation of the sale of the lots bid off by himself, at the sale, if not in those bid off by Peters, as to entitle him to appeal from that order.

The motion to dismiss the appeal is therefore denied; and the taxable costs of the appellant in resisting the application are to abide the decision upon the appeal.


text:
    The People, ex rel. Backus, vs. Stone.
    Where S. was convicted for a contempt in violating an injunction upon a creditor’s bill, and was fined $3000 for the damages sustained by the complainant by such misconduct; and a mittimus was issued to the sheriff of the county of Niagara to commit to the common jail of the county, upon which mittimus he was arrested by the sheriff; and S. immediately sued out a writ of habeas corpus before the first judge of the county, and such first judge, when S. was brought before him, directed notice of the hearing to be given to the complainant’s solicitor, and by a written order committed S. to the custody of the sheriff in the mean time, and the sheriff omitted to keep S. in custody but allowed him to go at large until the time for the hearing, when he produced him before the judge and the judge remanded him to prison; and the sheriff, when S. was so remanded to prison, took him to his sitting room in the court house where he resided, being a part of the building appropriated for the common jail, and did not confine or imprison him by locking the door or otherwise; Held, that suffering the prisoner to go at large, pending the proceedings upon the habeas corpus, was an escape.

      Held further, that suffering the prisoner to go at large in the sheriff’s'sitting room, after he was remanded to prison, was also an escape.

      Held also, that the sheriff was guilty of a contempt in thus suffering the prisoner to go at large, and in wilfully refusing and neglecting to execute the process of the court committing S. to prison.
    Where a defendant who is imprisoned in execution is brought up by the sheriff, upon a habeas corpus before a judge or commissioner at a place distant from the prison, and such defendant is to be detained a short time only, and it would be inexpedient to transport him back to the jail for safe custody until the decision upon the habeas corpus, it will not be an escape, or a contemning of the process of the court, for the sheriff to detain him in actual custody out of the common jail, although the prisoner is committed to the custody of the sheriff who brings him up.
    But as such prisoner is still in the custody of tire sheriff, under the original process of commitment, as well as under the ®rder of the judge, it is an escape if the sheriff voluntarily suffers him to go at large without restraint
    Where a sheriff is ordered by a writ of habeas corpus to bring up the body of a person in execution, "it is his duty to convey him by the shortest and most convenient route to the court or officer where the writ is returnable. And if he takes the prisoner by any other than the shortest and most convenient routd, merely to accommodate him, or suffers him to go at large to attend to his own affairs, it is an escape although he has him at the return of the writ.
    So where the habeas corpus issues at one term and directs the sheriff to bring up a prisoner who is in execution, before the court at the ensuing term, if tire sheriff lets him go at large in the mean time, it is an escape; although he appears with him in custody at the return of the writ.
    The statute relative to the proceedings upon habeas corpus gives no authority to the judge or commissioner to permit the prisoner to go at large, until the decision of the case upon the habeas corpus.
    1844. April 2.
    It is an escape, if a sheriff permits a prisoner, who is committed to prison upon a conviction for a contempt, to go at large in the sitting room occupied by the sheriff’s family, although such sitting room is a part of the building which contains the jail. For it is the sheriff’s duty to keep such prisoner in that part of the building which is appropriated for the prison, and in the same manner as by law he is required to keep prisoners charged with criminal offences.
    It is a misdemeanor at the common law for the sheriff to permit a prisoner, charged with a criminal offence, and committed for trial, to go at large out of that part of the building appropriated for the purposes of a prison, into the part occupied by the sheriff as a residence for himself and his family, and without taking any precautions against an escape.
    Where the U. S. district judge issued a habeas corpus directing the sheriff to take a prisoner, who was in jail upon a conviction for contempt, before the prisoner’s assignee in bankruptcy, at his office in Lockport, at all times required by such assignee, for the purpose of arranging, explaining and aiding in making out the accounts of the bankrupt’s estate, and such sheriff, after receiving such habeas corpus, permitted such prisoner to go at large; Held, that this was an escape.

      Held also, that the sheriff, under such a writ of habeas corpus, was not authorized to carry the prisoner to any other place than the office of the assignee, nor to remain at such office with him for any longer time than the assignee himself remained there. And that when the assignee left his office, it was the sheriff’s duty to take the prisoner back to jail, and to return with him to the office from time to time when the assignee required his attendance there for the purposes intended by the habeas corpus.

      Held further, that such habeas corpus gave to the assignee no right to the custody of the prisoner, nor any right to direct the sheriff in the execution of his duty. Nor did it give him the power to discharge the prisoner, or to keep him out of the prison for an indefinite period.
    In the case of a habeas corpus ad testificandum, the prisoner is to be taken by the most direct and convenient route, and at the proper time, to the court or place where the prisoner is to give his evidence; and after that purpose is accomplished the sheriff must return with him directly to prison.
    And if the sheriff voluntarily suffers the prisoner to go at large, out of his custody, in the mean time, or if he goes with him out of the way, to accommodate him and answer his own purposes, and not in the accomplishment of the legitimate purposes of the writ, it is an escape for which the sheriff is liable.
    This was an appeal by the defendant from an order of the vice chancellor of the eighth circuit. L. A. Spalding was convicted for a contempt, in violating an injunction upon a creditor’s bill, and was fined $3000 for the damages sustained by the complainant, by such misconduct, in addition to the costs and expenses of the proceedings. A mittimus was issued upon this conviction to commit him to the common jail of the county of Niagara ; upon which he was arrested by the defendant as sheriff of that county, on the 7th of May, 1842. Spalding immediately sued out a writ of habeas corpus before the first judge of that county ; and upon being taken before such judge by the sheriff, notice was directed to be given of the hearing, to the complainant’s solicitor, and by a written order of the judge, Spalding was committed to the custody of the defendant, as sheriff, in the mean time. The sheriff did not keep him in custody, but permitted him to go at large until the time appointed for the hearing, when he produced him before the judge, who remanded him to prison. The sheriff, instead of taking Spalding to prison, took him to the office of his solicitor, when J. Center, a supreme court commissioner, was called in, who allowed a new habeas corpus. And although the complainant’s counsel was present and made oath that he was authorized to appear for the solicitor and waived any further notice, Spalding’s solicitor insisted upon having the decision postponed until a notice could be served on the complainant’s solicitor, who resided in Monroe county. The commissioner thereupon adjourned the hearing for about eight days, and made a written order committing Spalding to the custody of the sheriff, in the mean time, who again suffered him to go at large. On the 27th of May the sheriff attended with Spalding before the commissioner, who again remanded him to prison. Spalding immediately sued out a third writ of habeas corpus, before the circuit judge, who directed notice to be given to the complainant’s solicitor, and in the mean time committed Spalding to the custody of the sheriff, by virtue of a written order, until judgment should be given on that writ of habeas corpus. The sheriff again suffered him to go at large until the day of hearing, the 4th of June, when the circuit judge remanded him to prison. The sheriff thereupon took him into his parlor or sitting room, in the court house, where the sheriff resided with his family ; and without confining or imprisoning him by locking the doors' or otherwise, suffered him to remain there until the 8th of June, when the sheriff was served with a writ of habeas corpus issued by the district judge of the United States for the northern district of New-York, under the bankrupt law, directing the sheriff to have the body of Spalding before L. H. Nichols, his assignee in bankruptcy, at his office in Lockport, from time to time and at all times required by such assignee, for the purpose of arranging, explaining, and aiding in making out the accounts of the estate. Under this writ the sheriff took Spalding before the assignee, and by his direction suffered him to go at large until the assignee should notify him that he no longer required his services. The sheriff suffered Spalding to go thus at large wheresoever he pleased, until the 1st of July, when he was notified by the assignee that he did not want Spalding any longer for the present; upon which the sheriff again took him into custody. Spalding then obtained the allowance of a fifth writ of habeas corpus by commissioner Center, who on the same day made an order committing him to the custody of the sheriff until judgment should be given upon the return to, that writ. The sheriff again suffered him to go at large until the 1st of August, when the commissioner remanded him to prison. But as the assignee in bankurptcy then told the sheriff that he again wanted Spalding, the sheriff did not commit him, but suffered the assignee to send him to New-York and other places, on business ; and Spalding was still at large when the sheriff was examined on the proceedings against him, for a contempt, for neglecting to confine and imprison Spalding, as directed by the order and mittimus of the vice chancellor. Upon hearing of the matters of complaint against the sheriff for his misconduct,the vice chancellor decided and adjudged, that he was guilty of a contempt in not executing the process of the court and committing Spalding to the common jail of the county of Niagara ; in voluntarily allowing him to escape and go at large without control or restraint; and in wilfully refusing and neglecting to execute such process ;
      and further that such misconduct of the sheriff was calculated to and did actually impair, impede and prejudice the remedies of the complainant. He therefore ordered the appellant to pay a fine of $250, and the further sum of $77,04 for the costs and expenses of the proceedings.

      S. Stevens, for the appellant.

      H. R. Selden, for the respondent.
   The Chancellor.

No one who looks into the papers which were before the vice chancellor can doubt, that the -whole proceedings on the part of Spalding, under the various writs of habeas corpus, were for the sole purpose of preventing the due course of justice, and to evade the process issued by the court to enforce the order of the vice chancellor. And I think there is very little room to doubt that the appellant, knowingly and intentionally, allowed himself to be used by Spalding as an instrument for that purpose ; instead of executing the process of the court and imprisoning Spaldingin the common jail, as he was in duty bound to do under the order of the vice chancellor. I am not prepared to say that he was technically bound to imprison Spalding in the common jail pending the proceedings upon the various writs of habeas corpus; but as Spalding was then actually committed and in execution, for a contempt, the order committing the prisoner to his custody, pending the proceedings, was no excuse or justification for suffering him to escape and go at large. The statute directs that, until judgment shall be given upon the return to the habeas corpus, the .court or officer before whom the party is brought may either commit such party to the custody of the sheriff of the county in which such court or officer shall be, or place him in such care or custody as his age and other circumstances may require. (2 R. S. 568, §47.) Where a defendant who is imprisoned in execution is brought up by the sheriff, before a judge or commissioner who is at a distance from the prison, and such defendant is to" be detained only a short time, so that it would be inexpedient to be at the trouble and expense of transporting him back to the jail for safe keeping until the decision upon the habeas corpus, and the prisoner is committed to the custody of the sheriff who brings him up, it would not be an escape, or a contemning of the process of the court for such sheriff to detain him in actual custody out of the common jail. But as the prisoner, in such a case, is still in the custody of the sheriff under the original process of commitment as well as under the order of the judge, it is an escape if the sheriff voluntarily suffers him to go at large without restraint. The habeas corpus, and the commitment to the sheriff who brings the prisoner up until the case can be disposed of, is an excuse to the sheriff for not having the prisoner in custody in the common jail in the mean time when it cannot be conveniently done. But such commitment is no discharge of the prisoner from the original arrest, so as to excuse the sheriff for permitting him to escape or go at large.

Where the sheriff is ordered, by a writ of habeas corpus, to bring up the body of a person in execution, it is his duty to convey him by the shortest and most convenient route to the court or officer where the writ is returnable. And if he goes elsewhere with the prisoner to accommodate him, or suffers him to go at large about his own affairs, although he has him at the return of the writ, it is an escape. So where a habeas corpus issues at one term, to bring a prisoner, who is in execution, before the court at the ensuing term, if the sheriff lets him go at large in the mean time it is an escape; although he appears with him in custody at the return of the writ. (Roll. Abr. Escape D. Balden v. Temple, Hob. Rep. 202. Williams v. Lister, Hardr. Rep. 4. Cro. Car. 14, 466. Wat. Sheriff, 139. Mosedell's case, 1 Mod. Rep. 116.) Suffering Spalding to go at large, therefore, pending the proceedings upon the four writs of habeas corpus issued by the officers of this state, were voluntary escapes permitted by the sheriff. The advice of the judge or commissioner, even if it had been that the sheriff should suffer the prisoner to go at large, was entirely extra-judicial and could not justify the escape. The statute gives no authority to the judge or commissioner to permit the prisoner to go at large. He has authority to commit the prisoner to the care or custody of some other person than the sheriff until the decision upon the habeas corpus. Bút even such directions would have been an abuse of the power of the officers who issued the writs of habeas corpus in this case ; although if such orders had been made they would have protected the sheriff in the mean time. But an order that the sheriff should suffer the prisoner to escape and go at large pending the proceedings upon the habeas corpus, would not have been within the authority intended to be granted by the statute.

Again ; it was an escape to permit the prisoner to go at large in the sitting room occupied by the defendant’s family. The prisoner was committed to prison not as a mere debtor, entitled to- the limits of the jail, but upon a conviction and as a punishment for misconduct of which he had been guilty by his breach of the injunction. He was therefore required to be kept in prison in the common jail of the county. And the sheriff’s sitting room was no part of the common jail, although it was under the same roof. The statute directs that the keeper of the county prison shall receive and safely keep every person duly sentenced to imprisonment in such prison, upon conviction for any contempt or misconduct, or for any criminal offence ; and that he shall not, without lawful authority, let out of prison, on bail or otherwise, any such person. (2 R. S. 755, § 7.) It was the duty of the sheriff, therefore, to keep Spalding in that part of the building appropriated for the prison, and in the same manner as by law he was required to imprison and detain persons charged with criminal offences, or who were committed for trial. And it would unquestionably havebeen'a misdemeanor, by the common law, for the sheriff to have permitted a prisoner charged with a criminal offence, and committed for trial, thus to go at large out of that part of the building appropriated for the purposes of a prison ; and without any precautions against an escape, in case the prisoner chose to leave the part of the building used for the residence of the sheriff’s family. This proceeding on the part of the appellant was an absolute trifling with the mandate of the vice chancellor which directed Spalding to be imprisoned for his misconduct until the fine and costs of the proceedings were paid.

After this farce, of an imprisonment in the sheriff’s parlor or sitting room for four days, had been gone through with the habeas corpus in the bankruptcy proceedings arrived. And the prisoner was again permitted to go at large for nearly a month, and to travel from one part of the state to another, under the pretence that the sheriff was obeying the habeas corpus which directed him to take the prisoner before the assignee in bankruptcy, at his office in Lockport, from time to time, for a specified purpose. As that writ only directed the sheriff to take the prisoner before a particular individual from time to time, and at a specified place, the sheriff was not authorized to take or to permit him to go to any other place than the office of the assignee, nor to remain at such office with him any longer than the assignee himself chose to stay. And when the assignee chose to leave his office for the night, it was the duty of the sheriff to take his prisoner back to jail, and to return vrith him in the morning if the assignee required his attendance de die in diem. The sheriff says the assignee threatened him with proceedings for a contempt if he did not let him do as he pleased with the prisoner, and as long as he wanted him. But both parties probably knew that the assignee had no authority to make such a requirement; and I cannot find that either of them has ventured to swear they believed he had. If they are men of ordinary intelligence they could not have supposed that the writ gave any such power to the assignee as he pretended to claim. Had the object of the assignee really been to obtain information from Spalding relative to his estate, instead of colluding with him to keep him out of jail, it would have been much less expense for the assignee to have gone to Spalding at the sheriff’s sitting room, where the latter had perfect leisure to give him the needed information, than to send a petition to the district judge to obtain a habeas corpus to bring Spalding to his office.

The vice chancellor is right in supposing that this habeas corpus, issued by the district judge, could onlyprotect the sheriff so far as he was acting in obedience to the writ; as upon a habeas corpus ad testificandum. Upon such a writ the prisoner is to be taken by the most direct and convenient way, and at the proper time, to the court or place where he is to give his evidence and after that purpose is accomplished the sheriff must return with him directly to prison. And if the sheriff voluntarily suffers the prisoner to go at large out of his custody in the mean time, or if he goes with him out of the way to accommodate the prisoner, or to answer his individual purposes, and not in the exercise of the legitimate purposes of the writ, it is an escape for which the sheriff is liable. This habeas corpus gave the assignee no right to the custody of the prisoner, or to direct the sheriff in the execution of his duty. Much less did it give him the power to discharge Spalding from prison for an indefinite period, or to send him about the country upon the business of the assignee, although that business related to the bankrupt’s estate. And no man of intelligence could, from the terms of the writ, for a moment suppose that the judge who allowed it ever intended to give the assignee any such power. The whole proceeding, therefore, was a mere pretence for releasing Spalding from imprisonment and permitting him to go at large for an unlimited time.

In relation to the amount of the fine imposed for this gross dereliction of duty on the part of the sheriff, if there was any error it was in not making it much larger. I infer from the evidence that Spalding had assigned his property to the receiver, for the benefit of the complainant, long before the decree in bankruptcy. If so the proceeds of the property converted, in violation of the injunction, belonged to the receiver, to be applied to the discharge of the complainant’s debt, and not to the assignee in bankruptcy. And "the permitting of the prisoner to go at large, instead of committing him to close custody until he paid over the proceeds of that property in discharge of the fine, has probably deprived the complainant of a very considerable portion of his debt. Public policy also required that the vice chancellor should visit such a gross perversion of the course of justice with an exemplary punishment.

For these reasons I think there was no error, in the order appealed from, of which the appellant has any reason to complain. The order must therefore be affirmed with costs ; and with interest on the amount of the fine and costs, specified in the order, from the time of the appeal until the entering the decree of affirmance, as damages to the respondent for the delay and vexation caused by this appeal.