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    Pendleton and wife vs. Fay and others.
    April 3.
    A bill of revivor, when necessary, may be filed of course without any order of the court granting permission to file such bill.
    If a bill of revivor is unnecessarily or improperly filed, the objection may be taken, by plea' or demurrer.
    Where a complainant has a right to revive the suit, he may add to the bill of revivor such supplemental matter as is proper to be added, by way of merely, in that stage of the suit.
    If any matters contained in a bill of revivor and supplement are irrelevant or improper, the defendant may avail himself of the objection, either by a plea, or by demurrer, or by exceptions for impertinence,
    A bill of revivor and supplement, in the nature of a bill of review, must be founded upon an affidavit of the discovery of new matter, and cannot be filed without the special leave of the court; neither can it be filed with-out malting the deposit, or giving the security required upon a bill of
    A supplemental bill ought to be filed as soon as the new matter sought to be inserted therein is discovered; and if the .party proceeds to a decree after the discovery of the facts upon which the new claim is founded, he will not be permitted afterwards to file a supplemental bill, in the nature of a bill of review, founded on such facts.
    The bill in this, cause was originally filed in 1823, by Davoue, an infant, by her next friend. She was married to Pendleton, and the suit was revived in their names. After the death of Pendleton a decree was made, settling the rights of the parties to the real estate in controversy, and referring it to the master to take an account of the rents and profits of the premises, received by the Robert Grade. In September,'1830, the complainant, Harriet Pendleton, intermarried with J. P. Dellentash. In October thereafter, without noticing the abatement of the suit by the intermarriage of the complainant with Dellentash or the change of parties by the death of the first husband, an was made on the part of the complainants to compel •the defendant Grade to answer certain interrogatories, on the reference before the master. The object of that application was to charge the defendant with certain insurance monies to have been received on account of an insurance, by him on his own account upon a building on the ises in controversy. The chancellor decided, that under the circumstances of this case, the defendant was not answerable to the complainants for any insurance monies he might have received. The application was therefore denied. The master proceeded under the decree and completed his report in May, 1831, by which he found a balance due to the defendant Grade. An application was now made on the part of Mrs. Dellentash for leave to file a bill of revivor and supplement, setting forth, among other things, the burning of the buildings, the insurance thereof by Grade, and the receipt of the insurance money by him.

      C. F. Grim, for the complainant.

      R. Sedgwick, for the defendant Grade.
   The Chancellor.

When this question was before me on the former application, I came to the conclusion that it would be inequitable to charge the defendant Grade with any insurance money he might have received. It appears by the report of this case, when it was heard upon the merits, (2 Paige's R. 202,) that the defendant Grade was turned into a trustee, by implication merely; and at the time the house was insured and destroyed by fire, he was in possession of the property, claiming it in his own right and believing himself to be the legal and beneficial owner of the' premises. As he was not an actual trustee, and only intended to insure his own interest in the premises, if the fire had not taken place he could not have been credited, in the taking of the account, for the amount of the premium. I therefore could not see that the complainants had any equitable claim for what might have been received for the loss. The complainants were not prevented from insuring their own interest in the premises, if they had thought proper to do so. But if this court decided wrong on that application, the complainants should have appealed. It is somewhat doubtful, at least, whether such a claim, if equitable, could have been allowed under the decree in this cause; which, if I mistake not, was a decree by consent.

Where a suit abates so that the complainant is obliged to file a bill of revivor, he may file such bill of course, without any special order of the court granting pennission for that purpose. If the bill is unnecessarily or improperly filed, the defendant may avail himself of the objection by plea or by demurrer. (Lewis v. Bridgman, 2 Sim. R. 465.) And where a complainant has a right to revive, he may add to the bill such supplemental matter as may be proper to add merely by way of supplement in that stage of the suit. But if the matter added by way of supplement to a bill of revivor be irrelevant or improper, the defendant may always avail himself of the objection, either by a plea, or by demurrer, or by exceptions for impertinence. If no decree had been made in this case, or if the supplemental matter had arisen since the decree, it would be a matter of course to permit the complainants to file their bill of revivor and supplement, leaving the defendant to make his objection, in the usual mode, to the whole or any part of the bill. It appears, however, that the matters which are sought to be inserted here by way of supplement, arose before the decree; and that the principal object is to obtain a re-hearing, or a modification of the decree, on such new matters. It is therefore, properly, a bill of revivor and a supplemental bill in the nature of a bill of review which is sought to be filed. Such a bill cannot be filed without the special leave of the court, and upon making the deposit or giving the security required upon a bill of review. It must also be founded upon a similar affidavit of the discovery of new matter. (Rule, 173. 2 Atk. R. 139, n. Mitf. Pl. 4 Lond. ed. 91.) In the case under consideration the affidavits are insufficient to authorize the filing of a supplemental bill in the nature of a bill of review, in connection with the bill of revivor. The affidavit of the complainant does not show whether or not the burning of the house, and the insurance effected by the defendant thereon, were known to her previous to the making of the decree. And from the affidavit of the solicitor, it is evident he had enough to put him on enquiry as to the fact of insurance, the house having been burned several years before the decree. If he wished to charge the defendant on that account, he should have filed a supplemental bill at an earlier stage of the. suit, for a discovery •as to that matter. In Bingham v. Dawson, (Jacob’s R. 243,) leave to file a bill of this nature was refused, where the party-might have obtained information of the facts previous to the making of the decree, if proper diligence had been used. (See also Ord v. Noel, Mad. & Geld. R. 127. Swan v. Swan, 8 Price's R. 581.) Here has likewise been negligence in making this application since the new matter was ascertained; and the complainant has gone on before the master since that time until she had ascertained by the report that the balance was in favor of this defendant. It would be going much too far, under such circumstances, to- permit a supplemental bill of this nature to be now filed, upon a very doubtful equity.

The application must be denied with costs. But this will not prevent the complainant from filing a bill of revivor and supplement, containing only such supplemental matter as has arisen since the abatement of the suit by the marriage of the complainant. Such a bill maybe filed of course, without special leave of the court.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

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    Tarbell vs. Griggs.
    April 3.
    Where the plaíntíffbrings a suit at law in a court of the United States, and obtains judgment therein, he cannot, upon the return of an execution unsatisfied, file a bill in the court of chancery of this state against his debtor, to reach the equitable rights of such debtor which are not subject to a sale upon the execution at law.
    Judgments of courts of the United States in this respect stand upon no higher ground than the judgments of the courts in sister states.
    The complainant, in this cause sued the defendant in the circuit court of the United States for the southern district of New-York, and obtained a judgment against him in that court. After the return of his execution unsatisfied, he filed his bill in this court to obtain satisfaction of his judgment out of the equitable assets and other property of the defendant which he could not discover and reach by bis execution at law. The defendant demurred to the bill, and among other causes of demurrer, he objected that the return of an execution unsatisfied in the United States court was not sufficient to entitle the complainant to come into this court for relief.
    ■ D. D. Field, for the complainant.

      G. C. Goddard, for the defendant.
   The Chancellor.

This court is called upon to aid the complainant in the collection of a judgment obtained in one of the federal courts; and no equitable ground for the interference of this court is alleged in his bill, except the mere fact that a judgment has been recovered in that court, and that an execution issued thereon has been returned unsatisfied. The thirty eighth section of the title of the revised statutes relative to the court of chancery, (2 R. S. 173,) authorizes such a bill by a party in whose favor an execution at law has been returned unsatisfied. Although the language of the statute is general, it never could have been the intention of the legislature to authorize the parties to foreign judgments to come into this court, in the first instance, merely upon the return of an execution. It has been repeatedly decided that tins section of the revised statutes is not introductory of a new principle, but is only in affirmance of what was considered by the court of dernier resort the legitimate jurisdiction of the court of chancery, previous to the adoption of the revised statutes. This court, upon the principle of comity, has gone so' far as to compel a discovery from persons residing within its jurisdiction, in aid of the prosecution or defence of a suit pending in the court of a sister state. And I am not prepared to say it might not, upon the same principle of comity, interfere to aid the parties in the collection of a judgment of a court of the United States, or of a sister state, upon any sufficient grounds of equity appearing upon the face of the bill to show that the exercise of such a jurisdiction was necessary to prevent a failure of justice. Without intending to express a definite opinion however on- that subject, I am satisfied there is not a sufficient foundation laid in this case for the exercise of the jurisdiction of this court."

There is nothing in a judgment of a courtd of the United States to place it, in this respect, upon any. higher ground than the judgments of the courts of a sister state, And the fact that the court in which this judgment was rendered was sitting within the limits of our own state, cannot give the plaintiff any better claim to this particular remedy than he would have had if the judgment had been rendered in any other state or territory of the United States.

It is not stated or even suggested by this complainant that he has not an "adequate remedy, precisely of the same nature as that he is now seeking here, by an application to the equity side of the circuit court. But whether he has or not, he voluntarily sought his remedy in a court of special and limited jurisdiction, and he must now be satisfied with such measure of justice as the courts of the United States think proper to mete out to him. If the complainant had thought proper to trust his rights to the decision of the state courts in the first instance, he might have filed his bill here, upon the return of his execution unsatisfied, for the purpose of obtaining an equitable execution of the judgment. He may now have the same relief by commencing an action of debt on his judgment in the state court, and exhausting his remedy at law by execution against the property of the defendant according to the laws of the state.

Upon this first ground of objection, I am satisfied that the court ought not to take jurisdiction of this case j and it is therefore unnecessary to examine any of the other causes of demurrer assigned by the defendant. The complainant’s bill must be dismissed with costs.


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    The Utica Insurance Company vs. Lynch and others.
    April 3.
    Where a defendant is answering as to his own acts, or as to other matters either known to him or charged in the bill to be within his personal knowledge, he must answer the substance of each charge distinctly and particularly.
    If he has any information on the subject other than such as is derived from the bill, he must answer as to such information, and as to his belief or disbelief of the facts charged.
    A defendant is not bound to answer any allegations in the complainant’s bill which are not material to be answered.
    Where the defendant has no knowledge or information as to any of the facts stated in the bill, he may deny, generally, all knowledge or information of the same, without answering as to each charge separately, and may put the allegations of the complainant in issue by the general traverse at the conclusion of his answer.
    Where the defendant has neither knowledge nor information of the matters charged, except what is derived from the bill itself, he is not bound to express any belief one way or the other.
    No particular form of words is necessary in an answer; it is sufficient if it be not evasive, and if the substance is preserved.
    This case came before the court on exceptions to a master’s report, on exceptions to an answer for insufficiency. The complainants were judgment creditors of James Lynch, the former president of their corporation. They also claimed a specific lien on the interest of Lynch in the estate of his father, under a written agreement for a mortgage. The defendant Lynch had assigned his property to 8. B. Roberts, in trust to pay certain preferred creditors, and among others the defendant Thomas Tillotson, who was not charged with having taken any part in the proceedings, or with having any personal knowledge of the facts in the bill. The defendant Tillotson answered as to his own debt and the consideration thereof; and he also answered certain other allegations in the bill, of which he had no personal knowledge, according to his information and belief. As to all the other matters stated in the bill, he denied any knowledge or information in relation to the same. Nine exceptions were taken to this answer for insufficiency, embracing the statements in the bill intended to be covered by this latter part of the answer. The master allowed the exceptions, and the defendant appealed to the court from that decision.

      ,M. Hoffman, for the complainants.

      J. Lynch, for the defendant Tillotson.
   The Chancellor.

The question raised by these exceptions is whether a defendant who has no knowledge or information as to the matters alleged in the bill is bound to answer each charge separately and particularly. Where a defendant is answering as to his own acts, or as to other matters either known to him or charged in the bill to be within his personal knowledge, he must answer the substance of each charge distinctly and particularly. If he has any information on the subject, other than such as is derived from the bill, he must answer as to such information, and to his belief or disbelief of the facts charged.

It is now well settled that a defendant is not bound to answer any allegations in the complainant’s bill which are not material to be answered. (Cooper’s Rep. 212. Rule, 106.) And upon examination it will be found that all the cases, in which the defendant has been required to answer each charge separately and particularly, were cases in which the facts which a discovery was sought were charged as his own acts, or as being within his own knowledge. If ten distinct facts are stated in the bill, and of which it is not alleged that the defendant ever had any knowledge, if he has really no knowledge or information as to either of those facts, it cannot be necessary that he should recite each particular allegation at length in his answer. He may in that case deny all knowledge or information on the subject matters of the bill, and put the allegations of the complainant in issue by the general traverse at the conclusion of his answer. (See Jones v. Wiggins, 2 Young Jervis' Rep. 385.) So if the defendant has knowledge or information only as to one of the facts charged, he may answer as to that fact in the usual manner, and may deny all knowledge or information as to the residue of the matters stated in the bill. In Amherst v. King, (2 Sim. & Stu. R. 183,) the defendant in his answer repeated, in the words of the bill, all the charges contained therein, and then alleged he was an utter stranger to those matters, and could form no belief concerning them. Such a recital in the answer, however, cannot be necessary where the answer can in any other way be made to refer to the charges in the bill with sufficient certainty. The answer in the case of Smith v. Lasher, cited on the argument, (5 Johns. Ch. Rep. 247,) was defective because the defendant only answered as to his personal knowledge, and said nothing as to his information and belief. Where he has neither knowledge or information, and never knew any thing in relation to the matters charged, except from the bill itself, he is not bound to express any belief one way or the other.

When the'court must see that a further answer could not be of any possible benefit to the complainant, it would be an outrage upon common sense to say an answer was insufficient because a particular form of words had not been used. The English cases on this subject all show that no particular form of words is necessary, provided the substance is preserved, and there is no pretence that the answer is evasive. The general traverse at the end of the answer puts every thing in issue which the defendant cannot answer for want of information, and it enables the complainant to go into proof to sustain the allegations in the bill.

The exceptions to the master’s report are well taken, and the exceptions to the answer must be disallowed. The defendant Tillotson is entitled to the costs of the reference to the piaster, and of the subsequent proceedings.


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    Hart & Hoyt vs. The Mayor, Aldermen & Commonalty of the City of Albany and Brown.
    Where the right of a party is doubtful, the court will not grant an injunction to prevent an illegal interference with the same, until the right is establish» ed at law.
    The court does not interfere to prevent a mere trespass, unless the complainant has been in the previous undisturbed enjoyment of the property, under claim of right, or where, from the irresponsibility of the defendants, or otherwise, the complainant could not obtain relief at law.
    Any person is authorized to abate a public nuisance; but where the question of nuisance is doubtful, the court may interfere, to prevent a waste of property by persons having no interest in the question, and leave the parties to settle the question of right by indictment.
    The corporation of the city of Albany has the same general jurisdiction over the pier and basin as over any other part of the territory within its chartered limits ; subject to such provisions of the act for the construction of the Albany basin as are inconsistent with that jurisdiction.
    By the act of March, 1808, the jurisdiction of the city of Albany was extended from the western bank of the Hudson river to the middle of the main channel.
    But notwithstanding the jurisdiction of the city of Albany over the Albany basin, such basin can be regulated by the legislature, if not inconsistent with ' the vested rights of individuals, in the same manner as the navigable waters of the Hudson river may be regulated.
    The basin is a public highway ; and a single canal boat becomes a public nuisance; if it is permanently located in any particular part of the basin, or for a great and unreasonable length of time, to the exclusion of all other boats, the owners of which might find it necessary, or even convenient, to pass that way, or to locate in the same place temporarily.
    No person has a right to appropriate any part of the street to his own exclusive use permanently, although such occupation may be convenient for the transaction of the particular business in which he is engaged.
    Public policy requires that the body, or the individuals, clothed with the power of preventing nuisances in populous towns and crowded harbors, should not be disturbed in the exercise of that power, unless they clearly transcend their authority.
    Prima facie, the person who appropriates any part of a public street or harbor to his own use exclusively, without the consent of the legislature or the municipal authorities of the place, is guilty of a nuisance.
    A floating store house, permanently moored in the Albany basin, secured in its place by means of spiles or posts driven into the earth in the bottom of the basin, is prima facie a nuisance; and the court will leave the owner thereof to his legal remedy against those ryho remove it as such,

      April 3.
    The bill in this cause was filed for the purpose of restraining the corporation of Albany and their dock master, from removing from the Albany basin an ark, or floating store house, which the complainants had erected and moored therein, contrary to an ordinance of the corporation. On the filing of the bill, an ex parte order had been entered, on the certificate of an officer, for an injunction to restrain the defendants from carrying the provisions of the corporation ordinance into effect. On the coming in of the answer, a motion was made to dissolve the injunction.

      Jl. Van Vechtm fy J. L. Viele, for the complainants.

      J. McKown fy J. E. Lovett, for the corporation.

      James King, for the defendant Brown.
   The Chancellor.

Several important questions were argued by the counsel on this application, but the conclusion at which I have arrived will render it unnecessary for me to express any definite opinion upon some of the points raised on the argument. The complainants have an ample remedy at law against the defendants for any illegal interference with their property. And if their right is doubtful, as they have erected this floating store house, and moored it in the basin, in violation of an ordinance of the corporation, and after due notice that their claim to do so would be resisted, they are not entitled to an injunction until they have established their, right at law. The cases in which this court has interfered to prevent a mere trespass, have been those in which the complainant had been in the previous undisturbed enjoyment of the property under claim of light, or where from the irresponsibility of the defendants, or otherwise, the complainant could not obtain relief at law. One important question in this case is, whether the store house or ark which the complainants have erected and moored in the waters of the basin is not a public nuisance. If it is so these defendants, or any other persons, are authorized to cause it to be removed. And the corpora-lion cannot be liable for the exercise of a power which properly belongs to any member of the community. In a case where the question of nuisance or no nuisance was doubtful, this court might interfere to prevent a mere wanton waste of property by persons having no interest whatever in the question, and leave them to the more appropriate remedy of a proceeding by indictment to test the question of right. But if the erection in question is in fact a nuisance, and injurious to the commerce of the city, it was not only right but it probably was the duty of the defendants to interfere and compel its removal by any legal means within their power.

I have not had leisure to examine the subject sufficiently to express any definite opinion, whether the particular ordinance in question is authorized by their charter, or the legislative acts amending the same; particularly that part of the ordinance which authorizes a sale of the store house, or the materials "of which it is composed, to pay the expense of its removal. I have no doubt, however, of the general jurisdiction of the common council over the pier and basin, to the same extent as over any other part of the territory within their chartered limits; subject to such of the provisions of the act for the construction of the Albany basin, as are inconsistent with those general powers. By the original charter, the city of Albany was bounded on the east by the waters of the Hudson river, at low water mark. The corporation was in express terms authorized to erect wharves and fill into the river to that extent. They were also entitled to fish in the river beyond the bounds of the city, and were entitled to the profits arising from anchorage and wharfage, at the wharf, or in the port. This boundary of the city does not appear to have been extended previous to 1808 j but by the act of the 4th of April, 1801, (2 R. L. of 1801, 157, § 19,) the common council of Albany were authorized to make by-laws to prevent obstructions in the river opposite the docks and slips. This authority extended to the particular place where this store house is now moored, it then being a part of the navigable waters of the river. By the sixth section of the act of March, 1808, the easterly bounds of the city were extended to the west bounds of Rensselaer county; the middle of the main channel of the river. This act gave the corporation the same jurisdiction over the territory or space between the western bank of the river and the middle of the main channel, as they had before possessed within the original limits of their charter. And they still retained the right, under the act of 1801, to prevent obstructions in the river even beyond those limits.

It was supposed by the complainant’s counsel, that the act of 1823, authorizing the construction of the Albany basin, had in fact made that basin a part of the canal, so as to vest the power of regulating and controlling the use thereof in the offi-cers of the state, under the general laws relative to the canals. The act certainly does not in terms make the basin a part of the canal; although it treats it as a great public improvement, and an important appendage thereto. And I understand that the canal board have not considered themselves as having any jurisdiction over it as a part of the canal; or as having the power to regulate or control the use of its waters, or the boats or other craft navigating or lying within the same. It is a part of the public navigable waters of the state, and the legislature may regulate the navigation thereof, not inconsistent with the vested rights of individuals, in the same manner as they may regulate the use of the navigable waters of the Hudson on the opposite side of the pier notwithstanding those waters are within the bounds of this municipal corporation. The powers of the corporation may be legitimate in reference to the exercise of jurisdiction over- these waters, although those powers are not exclusive. By the act of 1823, the corporation Was required to signify its assent to that act within a limited time, or the act was not to go into operation. But the corporation was was not required to surrender any right or power which it could properly exercise before that time, and which was not inconsistent with the provisions of the act. ■ By their charter, the common council were authorized to regulate the manner of constructing wharves and slips, &c. within the bounds of the city ; and they had also the right to receive wharfage for all boats and watercraft lying at the wharves, or anchored in the port opposite thereto. The act of 1823, which directs the manner of constructing this basin and pier, and makes a different disposition of a part at least of the Wharf-age, is inconsistent with the former rights and powers of the corporation. To that extent certainly the common council have, by their assent to that law, surrendered their former corporate privileges. They have also relinquished the right to' exact any charge for wharfage, or anchorage for canal boats, Sec. passing through the basin, or into the same, from the canal or river.. Whether they have relinquished the right of exacting wharfage, &c. from the floating store house in question, or from any boat or craft which is used in navigating the basin exclusively, is a question not necessáry to be decided here.

The waters of the basin, as well as the navigable waters of the river, are a public highway. Their primary use is for the passing and re-passing of boats, &c. navigating the canal and the Hudson river, and for the mooring of such craft during such reasonable time as may be necessary to discharge and receive their cargoes. But a single canal boat may become a public nuisance, by being permanently located in any particular part of the basin for a great and unreasonable length of time, to the exclusion of others which might find it necessary or even convenient to pass that way or to occupy the same place temporarily. Thus, every citizen has the right to use the public street for the purpose of passage, and to occupy any particular part of it temporarily for the ordinary transaction of business. But he has no right to appropriate any part of the street to his own exclusive use permanently, although such occupation may be very convenient for the transaction of the particular business in which he is engaged. In the case of The King v. Russell, (6 East's Rep. 427,) a waggoner was convicted of a nuisance for keeping one or more waggons constantly before his store house, in the public street, for the purpose of receiving and transporting goods in the usual course of his business, although there was sufficient room for two carriages to pass abreast on the opposite side of the street. And in Rex v. Cross, (8 Campb.Mep. 224,) Lord Ellenborough held it an indictable nuisance for a stage coachman to stand with his coach in a particular part of the street for an unreasonable length of time, waiting for passengers. (See also 3 Campb. Rep. 230 ; 1 Dallas, 150 ; 1 Serg. & Rawle, 217; 6 Munford, 308; and 2 Wils. Ch. R. 87.) The question of nuisance or no nuisance, however, is always a question of fact, in relation to which the opinions of individuals will necessarily differ. It therefore becomes necessary in all populous towns and crowded harbors, to regulate such matters by police ordinances. And public policy requires that the corporation of the place, or the conservators of the port, should not be disturbed in the exercise of those powers, unless they have clearly transcended their authority. Prima facie, the person who appropriates any part of a public street or harbor exclusively and permanently to his own use, without the consent of the legislature or the municipal authorities, is guilty of a nuisance ; and he subjects himself to the burthen of proving that it is no injury to the public, and that a public right has not been violated. In this case the complainants have built a floating store house, covering nearly one eighth of an acre, and have moored the same in the lower part of the basin, which is usually most crowded with boats. This ark or store house is permanently secured in its place by means of spiles or posts driven into the earth in the bottom of the basin. I have no doubt it is a very great convenience to the complainants, and those having dealings with their transportation line, in the transaction "of their business. But it is evident it must give them great and improper advantages over other persons and companies transacting similar business, unless they can be permitted to build their floating store houses also. What would be the consequence of a general permission to occupy the waters of the basin in this manner, it is not necessary to predict.

It is alleged in the bill that the place where the store house is located, is in a part of the basin where it does not obstruct the free passage of boats and other craft, and where they in fact never have occasion to come in the ordinary transaction of their business. This however is denied by the answer of both the defendants, and is verified also by the oath of Brown, the dockmaster; and from its location, as exhibited on the diagram annexed to the answer, I should suppose this ark must of necessity render it less convenient to pass with boats or vessels from the sloop lock to the upper part of the basin at those seasons of the year when the business is most pressing. At least, the complainants have failed in establishing such a perfect right to erect and maintain this float or ark within the basin, as to justify the court in interfering by injunction to protect them in the undisturbed enjoyment thereof.

The injunction must therefore be dissolved; and the complainants must be left to their legal remedy, if they have any, to obtain satisfaction for the removal of the ark or store house, should the corporation think proper to cony their ordinances into effect


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    Talbot vs. Chamberlin and others.
    April 3.
    The interest of a person in possession of land under a subsisting contract for the purchase thereof, cannot be sold on an execution at law; but in all other cases the bare possession of the defendant in the execution, although it be a mere tenancy at will or on sufferance, or a possession without color of right, is such an interest as may be sold on the execution.-
    The purchaser under such a sale, after the time for redemption is past, has a right as against the defendant in the execution and those claiming under him, to be substituted in his place as to the possession, and all his legal rights connected therewith; and during the time allowed for redemption, the defendant and those claiming under him may be restrained from committing waste.
    Theodore F. Talbot purchased all the interest of D. V. Chamberlin in a certain piece of land in Monroe county, under a judgment and execution against" Chamberlin who was in possession of the premises at the time of the sheriff’s sale. Talbot afterwards applied by petition to the vice chancellor of the eighth circuit, and obtained an order and injunction to restrain the defendants from the commission of waste, according to the provision of the revised statutes. (2 R. B. 337, § S3.) The defendants, upon an affidavit that Chamberlin had no title to the land, that the heirs of E. Bordenot were the owners thereof, and that their agent assented to the commission of the alleged waste, obtained an order of the vice chancellar dissolving the injunction. From this order Talbot, the pe titioner, appealed to the chancellor.

      T. F. Talbot, in proper person.
    vV. Bacon, for the defendants.
   The Chancellor.

There is no doubt that the acts of the defendants, as detailed in these papers, amount to such waste as was intended to be prohibited by the statute. The only question therefore is whether the petitioner obtained any interest in the premises by the sheriff’s sale, as against the defendant in possession, to entitle him to the benefit of this statutory provision.

Previous to the revised statutes, if the judgment debtor was in possession of land at the time of the sale thereof on an execution against him, he was estopped from denying that he had any interest in the land. The bare possession was an interest which might be sold on execution, and the purchaser acquired the same interest which the defendant in the execution had, and no more. If the latter was a mere tenant at will or by sufferance, or even was in possession without color of right, the purchaser, as against him and those claiming under him, had a right to be substituted in his place so far as respected the possession and any legal rights of the defendant connected therewith. (Jackson v. Graham, 3 Caines' R. 188. Jackson v. Parker, 9 Cowen’s R. 84.) And if the defendant was in under a contract to purchase, and had actually paid all the purchase money, so that the vendor held the premises as a mere naked trustee for the use of the defendant, his equitable interest also passed under a sale by the sheriff (1 Atk. on Conv. 516. 1 John. Ch. R. 56. 17 John. R. 356.) The revised statutes have made a trifling variation in the law on this subject, by prohibiting the sale, on execution at law, of the interest of a person holding a contract for the purchase of lands. (1 R. S. 744, § 4.) As there is no exception . to this general provision in the statute, I am inclined to think that if the defendant is in the possession under and.by virtue of the contract to purchase, his possession under that contract cannot be sold on execution at law, if he has not obtained the legal title, although the whole purchase money has been actually paid. But this provision of the statute cannot protect the possession of the defendant in the execution from a sale by the sheriff, unless he holds that possession as a part of his interest acquired under the contract to purchase.

in this case it appears from the affidavit of Chamberlin that he had no right to the possession of the land under any contract for the purchase thereof. The contract with Talbot gave him no such right, and he cannot set up a paroi agreement not contained in the written instrument. If such a parol permission was given it was not a part of the contract to purchase, which the statute requires to be in writing. Again; it is shown by Chamberlin’s affidavit that Talbot had no right to the possession of the land, and had not obtained a contract from the owners within the six months contemplated by the written agreement. Chamberlin was therefore a mere naked possessor without right; or, at most, a tenant at will to the real owners of the land. His possession or interest, then,, was -a proper subject of sale by the sheriff on the execution ; and the purchaser is entitled to the order to prevent him, and those claiming under him, from committing waste during the fifteen months and until the possession is delivered over to the purchaser under the sheriff’s sale. If Chamberlin has any rights under his written contract with Talbot, they will not be affected by the sale or by these proceedings.

The order of the vice chancellor dissolving the injunction must be reversed, with costs•„ and the proceedings are to be remitted to him, that the original order and this decree, may be enforced and carried into full effect.


text:
    Robinson and others vs. Smith and others.
    April 17.

      Upon a bill filed, previous to the adoption of the_ revised statutes, by certain stockholders of an incorporated company against the individual directors for fraud and mismanagement in the execution of their trust, by which the property of the corporation was dissipated and lost: Held, that the corporation was a necessary party, either as complainant or defendant.
    Where there has been a waste or misapplication of the corporate funds by the officers or agents of the institution, a suit to compel them to account for the loss should be in the name of the corporation, unless it appears that the directors of the corporation refuse to prosecute such suit, or the present directors of the company are the parties who have made themselves answerable for the loss.
    The directors of a joint stock corporation, who wilfully abuse their trust or misapply the funds of the company, by which a loss is sustained, are personally hable as trustees" to make good that loss; and they are also liable if they suffer the corporate funds to be lost or wasted by gross negligence and inattention to the duties of their trust. -
    independent of the provisions of the revised statutes, the court of chancery had jurisdiction, so far as the rights of the individual corporators were concerned, to call the directors to account, and to make satisfaction for losses arising from a fraudulent breach of trust.
    A defendant can demur for want of proper parties only in those cases where' it is apparent from the bill itself that there are other persons who ought to have been made parties ; but if that fact does not distinctly appear upon the face of the bill, the objection of a want of parties must be made by plea or answer, showing who are the necessary parties, and making the objection in a plain and explicit manner.
    The objection, by defendants who are officers of a corporation, that a discovery of the matters stated in the bill may subject the corporation to a forfeit* ure of its charter, is not sufficient to support a general demurrer, to the relief as well as to the discovery sought by the bill.
    Bemurrer ore terns allowed upon payment of the costs of the demurrer on the record y but liberty was given to the complainants to amend.
    The bill in this cause was filed by certain stockholders of the New-York Coal Company against the directors of that corporation, charging them with improper conduct in the" management of their trust. The company was incorporated-in April, 1824, with a capital of §'200,000. By its charter the company was restricted. from carrying on any banking business, and was limited solely to carrying on the business of exploring for, digging, and vending coal. (Laws of 1824, p.
      217.) The bill charged that the commissioners named in the act opened books for the subscription to the stock, and that the corporation went into operation in June, 1824, when T. L. Smith, M. Hoffman, J. Minium, C. Lawton, W. F. Pell, F. Pell, W. Israel, S. Leggett and S. L. Governeur were chosen directors of the company. That T. L. Smith was elected president, and B. Abbot was appointed secretary. That soon after the company was organized, the directors purchased thirty acres of land, supposed to contain a coal bed, for which they paid $13,000. That they procured from the land about 3000 bushels of coal, which they took to the city of New-York as a sample. That some time in the course of the same year they sold the land, and, as the bill alleged, they had never since employed the funds of the company for the purpose of carrying on the business of exploring for, digging or vending coal. The bill further stated, that since that time the directors of the company had used and employed their funds almost exclusively in the purchase and sale of the stocks of various corporations and institutions. That they came to a determination to purchase a majority of the stock of the City Bank, and did by their agent purchase 16,000 shares of the stock of that bank at a premium of from two to nine and a half per cent. That they pledged the same to individuals to raise money thereon, at about 90 per cent, upon the par value of the stock, and paid the difference out of the funds of the coal company; and that the individuals to whom the bank stock was pledged, gave to the agent of the coal company their proxies to vote for directors of the bank. That the company ordered its agent to vote for T. L. Smith, C. Lawton, W. F. Pell, and others, as directors of the bank; that he did so vote, and that they were accordingly elected such directors on the first Monday of June, 1825. That the stock of the City Bank was afterwards sold at a loss of from 10 to 20 per cent., by which the coal company lost $50,000. The bill also charged that this operation of the directors of the coal company was to subserve their private purposes, and was in. violation of their known duty as directors of the company. The bill further charged that the directors of the coal company also purchased 1500 shares of the New-York Gas Light at a premium of from 80 to 100 per cent. shares of the New-York and Schuylkill Coal Company, atan advance or premium of from 10 to 30 per cent.; 1500 shares of the Bank of America, at a premium of from 3 to 8 per cent.; 1000 shares of the Jersey City Bank, at a premium of from 12 to 25 per cent,; 1500 shares of the Mercantile Insurance Company, at a premium of from 8 to 13 per cent.; 1000 shares of the Franklin Fire Insurance Company, at a premium of from 8 to 20 per cent.; and 1500 shares of the Brooklyn Gas Light Company, at a premium of 7 per cent. That a portion of the said stocks had been since sold, and on which the company sustained a loss of about $62,000, exclusive of the loss on the City Bank stock. That a considerable portion of the stocks thus purchased had not been re-sold, and were greatly diminished in value. That the whóle amount of these and other stocks purchased by the directors, or in which the company was interested, amounted to nearly two millions of dollars. By which dealings the directors caused a loss to the coal company of not less than $150,000, and thereby rendered its stock of very little value. The bill further charged that the amount of debts owing by the coal company during a part of the time when these stock speculations were going on, exceeded fifteen times the amount of the capital paid in. The president and secretary were also made defendants; the bill charging that the books and papers of the company were in their possession. The complainants prayed a discovery and for general relief.
    The defendant F. Pell put in a general demurrer to the bill for want of equity. The other defendants put in a general and special demurrer. And for causes of demurrer, they stated that it appeared by the bill: that the complainants were owners of their stock in severalty, and had' no joint interest therein ; that the capital stock of the company was 4000 shares, and that the complainants were owners of only 160 shares. They therefore insisted that the owners of the other shares should have been made parties.
    C. G. Troup 8f G. F. Talhnan,

    for the defendants. The bill should have been filed in the name of the corporation as complainant. Although a party may have an interest in a question involved in a suit, it does not follow he can be a proper party in the first instance. For instance, a corporation should first commence a suit for an injury to all the corpora-tors ; if it neglects to do so, then one of the corporators can sue. A different rule would lead to a multiplicity of suits. So, in England, the assignees of a bankrupt should first sue for a debt due the bankrupt; if they should fail to sue, then one of his creditors is permitted to commence the suit. The same rule exists in the case of a mortgage assigned for the benefit of creditors, and in the case of a testator or intestate dying, leaving debts. (6 Vin. Abr. 304, tit. Corporations. Rex v. Clark, 1 Say. R. 226. Broke’s Abr. tit. Corporations, pl. 24. Cooper’s Eq. Pl. 174. Alsager v. Rowley, 6 Ves. jun. 749. Burroughs v. Elton, 11 Id. 35. Doran v. Simpson, 4 Id. 665. 3 Merivale, 463.) At least all the stockholders should have united with the corporation in filing the bill, or some of the stockholders should have filed the bill for themselves, and for all others who might elect, to come in under the decree. The latter mode is adopted where it is impossible that all the stockholders should become parties, on account of the absence of some, or the inconvenience arising from their great number. (Adair v. New River Co., 11 Ves. 444. Cockburn v. Thompson, 16 Id. 326.) The bill should have stated the excuse for not making all the stockholders parties. (Mosely, 85. Bowyer v. Covert, 1 Vernon, 95. Mitf. Pl. 134. 1 Montague on Pl. 65. Prec. in Ch. 592.) The complainants should have set forth their rights clearly, and stated time, place and circumstance. This wás necessary for the information of the defendants, that they might have known whether to answer,plead, &c. It was necessary also to enable the defendants to plead res adjudicata in another suit. This objection goes to ~&^sqmty of the bill.. Uncertainty in the bill may be objected on demurrer. (Cooper’s Eq. Pl. 181. East India Co. v. Henchman, 1 Ves. jun. 287. 3 Meriv. 170, 3. Cathcart v. Lewis, 3 Brown’s Ch. Cas. 516. Elmendorf v. De Lancey, 1 Hopk. R. 556. City of London v. Levy, 8 Ves. 400.) The defendants are not now directors, and cannot therefore be called to account as such. In the case of The Attorney General v. Carmarthen, (Cooper’s Rep. 31,) Lord Eldon doubted whether chancery could interfere where a corporation had misapplied its funds. In The Attorney General V. The Utica Ins. Co. (2 John. Ch. Rep. 374, 384,) Chancellor Kent expresses similar doubts. As to the implied powers of a corporation, see the case of Sutton’s Hospital, (10 Co. 30, b.) There maybe a demurrer to the whole bill, and also a demurrer ore terns. Want of parties, although no objection to a prayer for discovery merely, yet it is so to a prayer for relief. Defendants are not bound to make any discovery which may lead to a forfeiture. (Cooper’s Eq. Pl. 207.) Parties are not bound to discover any fact which would form a link in the chain of proceedings on a quo warranto. This court has no jurisdiction of this case, it being a case of a fraudulent application of the funds. (2 Mad. 61. 3 Black. Comm. 431. King v. Watson, 2 T. R. 199. Attorney General v. Earl of Clarendon, 17 Ves. 491. Act incorporating The Farmers and Fire Ins. and Loan Co., Laws of 1822, p. 52. Laws of 1825, p. 448. 2 R. S. pt. 3, ch. 8, tit. 4.)
    The court of chancery in England assume jurisdiction only over charitable corporations. The lord high chancellor is the visitor of charitable corporations ; and the king, through the king’s bench, is the visitor of civil corporations. (Attorney General v. Talbot, 1 Ves. sen. 78. 3 Atk. 673, S. C. Attorney General v. Reynolds, 1 Eq. Cas. Abr. 131.) The cases cited by the learned counsel from the English books were cases of charitable corporations. In the case of The Attorney General v. The Utica Ins. Co. (2 John. Ch. R. 389,) Chancellor Kent does not lay down the rule broadly, that the directors of a corporation would be personally liable; he confines the rule to extreme cases, where its application would be necessary to check an abuse of powers or trusts. The remedy referred to is by injunction. No case can be found where directqrs_hav@ been made personally liable as trustees. (2 Mad. Chan. Practice, 61. 1 Blackstone’s Comm. 481. Cooper's Rep. 30. King v. Watson, 2 Term Rep. 199.) The discussion in the legislature during the revision of the laws, whether the directors should be made personally liable to the creditors of the corporation or to the stockholders, shows that the understanding of the law previous to that time was, that directors were not so liable. (See Notes of Revisors to pt. 3, ch. 8, tit. 4, of

      the Revised Statutes.) The complainants, to succceed in this case, must establish the jurisdiction of the court and the personal liability of the directors. There was no provision in the charter of their company making the directors personally liable to the stockholders and creditors, as was the case in the charter of the Life and Fire Insurance Company. The revised statutes have conferred upon the court of chancery the power of suspending or removing trustees, and of preventing their alienation of the trust property. If the defendants as directors were trustees, they were trustees of the corporation, not of the corporators individually; and they can only be liable to the corporation. ‘ And if trustees, they were only so from .the timé they were appointed directors, and not as to acts previously done. The bill does not allege that the acts complained of were committed while the defendants were directors ; this was necessary. The complainants should have averred that they did not assent to such acts, and were ignorant thereof at the'time they purchased the stock. They remained quiet until they saw the operations now complained of prove unsuccessful, and then they filed their bill and called for an account. All the persons interested have not been made parties. It is important to settle this controversy in one suit. Either all the stockholders must be made parties, or the bill must be filed by a part in behalf of themselves and the others who may choose to come in under the decree. (Lay v. Thomas, 2 Ves. sen. 312. 2 Mad. Ch. Pr. 144. Adair v. New River Co., 11 Ves. 444. Good v. Blewilt, 13 Id. 397. Moffatt v. Farquharson, 2 Brown’s Ch. Cas. 338. Brown v. Ricketts, 3 John. Ch. Rep. 553. Davoue v. Fanning, 4 Id. 109.) In the case of The Attorney General v. The Utica Ins. Co. (2 John. Ch. R. 374,) the chancellor refused to decide the case until all the parties were brought before the court. Here the complainants have no joint interest. The defence may be different to the claims of the several complainants. The complainants having separate rights, cannot be united in the same suit.

      G. Griffin, for the complainants.
    A stockholder may call upon the directors in a court of chancery to account in a proper case; although in certain cases, we might proceed in the name of the people, by a quo warranta or mandamus, or in the name of the corporation; yet we are not compelled to do so. Suppose the delinquent directors should have the control of the corporation ; it would not be in our power to use the name of the Coiporation. Any stockholder who is aggrieved, may, for himself alone, proceed in chancery against the directors. He is one of the cestui que trusts, and the directors are the trustees. This question first came up in Ogden v. Kip, (6 John. Ch. Rep. 160.) There the injunction prayed for was refused ; not because the chancellor had no power, but because a ease was not made out sufficiently strong to warrant it. The same doctrine was held by Chancellor Kent, in Attorney-General v. Utica Ins. Co. (2 John. Ch. R. 389.) in that case the chancellor calls the directors trustees, and states a case like that of these complainants’, in which chancery would interfere, upon the ground of the directors being trustees. The same points were taken in The Charitable Corporation v. Sutton, (2 Atk. Rep. 400,) as in this case. Lord Hardwicke them said, that in every case of a breach of trust by men either in private or public capacities, he would interfere, where the grievance was intolerable. There is no effectual mode of correcting the evil other than by a suit in chancery against the directors as trustees ; subject them to personal liability, and then the grievance will be remedied. (Good v. Blewitt, 13 Ves. 397. Lloyd v. Loaring, 6 Id. 772. Adley v. The Whitstable Co. 17 Id. 315. 1 Meriv. 107.) If there is no remedy in chancery, directors may set the stockholders at defiance. Such a doctrine would be against conscience and public policy. We have made a case sufficiently strong to call for the interference of the court. Directors must be held personally liable to stockholders for fraud and gross negligence ; for an utter recklessness and disregard of the interests of the corporation ; for a wanton departure from the objects of the institution; for gross misapplications of the funds; or for their total abstraction from the objects of the corporation for the individual benefit of the ■ directors. We seek to recover against the defendants for their depredations. They have been guilty of stock jobbing in its wildest forms. Three stockholders have united as complainants. The objection that we have united distinct causes of

      action in one suit is not founded upon fact. The complainants have like causes of action. It could not have been necessary to have filed three bills. The injury complained of was committed during the administration of the defendants as directors. Chancery has jurisdiction over corporations to compel them to account. (1 Mad. Ch. Pr. 93. Adley v. Whitstable Co. 17 Ves. 315. 1 Meriv. 107. Attorney-General v. Governors of the Foundling Hospital, 2 Ves. jun. 44. Caffrey v. Darby, 6 Id. 488. Fellows v. Fellows, 4 Cow. Rep. 710.) The number of parties uniting in a suit is no objection, provided they have the same interest involved in the issue, or one connected interest centering in the point in issue. (Brinckerhoof v. Brown, 7 John. Ch. Rep. 217. 2 Mad. Ch. Pr. 234. 2 Anstruther, 469, 477.) The defendants upon demurrer cannot object that an answer would subject them to pains and penalties. But what are the pains and penalties, of which these defendants are in danger l No other than the payment of money. The complaint here is of a misapplication of the funds of the corporation. The forfeiture of the charter is no peculiar pain and penalty upon the defendants. It is equally so upon the complainants. A pain and penalty is fine and imprisonment. It is objected also, that all the necessary parties are not made complainants. It does not appear from the bill that there are any other stockholders but the complainants and defendants. The chancellor cannot presume there are other stockholders. The statute does not prescribe a particular number. The parties before the court may have purchased all the stock. A demurrer, for want of proper parties, must show affirmatively who ought to be the parties. This rule is by analogy to a plea of abatement at law. (Wiser v. Blachly, 1 John. Ch. R. 437.) But if the persons interested in the event of the suit were numerous, it was not necessary to make all of them parties. This would have led to multiplicity. The case of Chancey v. May, (Prec. in Ch. 592,) sanctions the form of this bill. Stockholders are not tenants in common ; and they are not compelled to join in a suit unless they choose. This is a case of a distinct and separate injury to each stockholder. It is a case where the stockholders may elect to join or not. The clause as to filing the bill for the complainants and others, was stricken out in this case by an eminent counsel. The rule that multifarious matters shall not be joined in the same suit, is a rule of convenience. (Per Colden, Senator, Fellows v. Fellows, 4 Cowen’s R. 710.) The objection against answering upon the ground of exposure to pains and penalties, is not favored. (Wendell v. Van Rensselaer, 1 John. Ch. Rep. 350.) Where this excuse is set up, the party must answer as far as he can. Nonjoinder of parties is not a fatal objection. In Ogden v. Kip and others, (6 John. Ch. Rep. 160,) the chancellor, by implication, admits the right of the stockholders to proceed against the directors, in a case of emergency. In Adley v. The Whitstable Co. (17 Ves. 315,) a corporator was allowed to proceed for an account against the corporation. Chancellor Kent, in Attorney-General v. Utica Ins. Co. (2 John. Ch. Rep. 389,) held, that if directors diverted the funds of the corporation, chanceiy would have a right to interfere.
   The Chancellor.

Before I proceed to examine the merits of this case, it may be proper to refer to the causes assigned as special grounds of demurrer. And first, it is said there are other stockholders who ought to be made parties. Where it is not apparent from the. bill itself that necessary parties are omitted, it can be taken advantage of only by plea or answer; showing who are the necessary parties, and making the objection of a want of parties in a plain and explicit manner. (2 Paige’s Rep. 280. 1 Monro’s Kent. Rep. 107. 1 A. K. Marsh. Rep. 112. 1 Hogan’s Rep. 70.) The defendants can demur only when it is apparent from the bill itself that there are other persons who ought to have been made parties. And the demurrer should show who are the proper parties. It is true the capital stock of the corporation is, by the charter, to consist of 4000 shares; and the complainants own but 160, But it also appears from the act of incorporation, that the defendants who were directors must also have been stockholders. And from aught that appears to the contrary, they may now be the owners of all the residue of the stock subscribed.

The objection for multifariousness cannot be sustained. All of the complainants are cestui que trusts, having similar interesls, in every respect, and arising out of the same trust. They are seeking precisely the same redress against their trustees, and for the same acts; by which they allege they have received a similar and common injury. There is, therefore, no good reason for requiring them to file separate and distinct bills. It is a favorite object of this court to prevent a multiplicity of suits. And where several persons have a common interest, arising out of the same transaction, although their interest is not joint, even the defendant may sometimes insist that they shall all be made parties, that he may be only subjected to the trouble and expense of one litigation. Upon the principle of the decision of this court, in Brinckerhoff v. Brown, (6 John. Ch. Rep. 139,) the complainants were authorized, if not required, to join in this suit.

The objection that a discovery may subject the company to' a forfeiture of its charter, is not sufficient to support this general demurrer to the whole bill, both as to the discovery and relief, even if it would have authorized a demurrer to the discovery of particular facts. Under the provisions of the revised statutes, the defendants may be compelled to make a discovery, in certain cases, although it may subject the corporation to a forfeiture of its corporate rights., (2 R. 8. 465, § 52.)

If the allegations in this bill are true, there is no doubt that the directors of this company were "guilty of a most palpable violation of their duty, by engaging in this gambling speculation in stocks, which was wholly unauthorized by their charter ; and which the bill alleges was carried on to subserve their own individual interests and purposes. I have no hesitation in declaring it as the law of this state, that the directors of a monied or other joint stock corporation, who wilfully abuse their trust, or misapply the funds of the company, by which a loss is sustained, are personally liable as trustees to make good i that loss. And they are equally liable, if they suffer the corporate fmids or property to be lost or wasted by gross negligence and inattention to the duties of their trust. Indepen- . dent of the provisions of the revised statutes,’ which were passed after the filing of this bill, this court had jurisdiction, so far as the individual rights of the- corporators were concerned, to-call the directors to account; and to compel them to make satisfaction for any loss arising from a fraudulent breach of trust* or the wilful neglect of a known duty. To this extent Chancellor Kent, in the case of The Attorney-General v. The Utica Ins. Co. (2 John. Ch. Rep. 389,) admitted the court had jurisdiction ; although he doubted the general powers of this court over the corporation itself to prevent an abuse of its corporate privileges. Until very recently, but few incorporated companies, in which individuals had any direct pecuniary interest, existed in England, except corporations for charitable purposes. And this court would very reluctantly interfere with the concerns of mere municipal corporations, where a sufficient remedy is afforded, by mandamus or quo warranta, or by an indictment against the officers of the corporation, for any abuse of their powers by which the public has sustained an injury. But since the introduction of joint stock corporations, which are mere partnerships, except in form, the principles which were formerly applied to charitable corporations in England, may be very appropriately extended to such companies here. The directors are the trustees or managing partners, and the stockholders are the cestui que trusts, and have a joint interest in all the property and effects of the corporation. (See Wood’s Inst. B. 1, ch. 8, p. 110. 11 Coke’s Rep. 98, b.) And no inj ury the stockholders may sustain by a fraudulent breach of trust, can, upon the general principles of equity, be suffered to pass without a remedy. In the language of Lord Hardwicke, in a similar case, “ I will never determine that a court of equity cannot lay hold of every such breach of trust. I will never determine that frauds of this kind are out of the reach of courts of law or equity; for an intolerable grievance would follow from such a détermination.” (2 Atk. Rep. 406.) The demurrers on the record are therefore not well taken, and should be overruled.

The defendants have, however, assigned as causes of demurrer, ore tenns, that it is not alleged in the bill that the corporation, by its officers, refused to sue, or that the defendants are the present directors, having the control of the corporation ; and that therefore the suit should have been in the name of the corporation. That even if a sufficient excuse is shown, by the bill, for bringing the suit in the name of the stockholders, the corporation should be before the court as a party defendant. I think at least one of these objections is well taken; and that the corporation should be before the court, either as complainant or as a defendant

Generally, where there has been a waste or misapplication of the corporate funds, by the officers or agents of the company, a suit to compel them to account for such waste or misapplication, should be in the name of the corporation. But as this court never permits a wrong to go unredressed merely for the sake of form, if it appeared that the directors of the corporation refused to prosecute by collusion with those who had made themselves answerable by their negligence or fraud, or if the corporation was still under the control of those who must be made the defendants in the suit, the stockholders, who are the real parties in interest, would be permitted to file a bill in their own names, making, the corporation a party defendant. And if the stockholders were so numerous as to render it impossible, or very inconvenient to bring them all before the court, a part might file a bill, in behalf of themselves and all others standing in the same situation. (Hichens v. Congreve, 4 Russ. R. 562.) Although the revised statutes have provided for eases of this kind in future, this bill cannot be sustained, unless it is made to conform to the law as it existed at the time the suit was commenced.

The demurrer ore tenus is therefore allowed, upon payment by the defendants of the costs of the demurrer on the record. (Attorney-General v. Brown, 1 Swanst. Rep. 288. Durdant v. Redmond, 1 Vern. 78.) But the complainants are to be at liberty to amend, as they may be advised.

         A demurrer ore terns appears to be in tire nature of a new demurrer to the same part of the bill which was before demurred to. And it is allowed in this form, upon the argument of the demurrer on record, to prevent injustice ; as the defendant cannot again be allowed to demur to the same matter in any other way. (See 11 Ves. Rep. 70.)


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    Le Roy vs. Rogers.
    April 17.
    Upon a creditor’s bill filed after the return of an execution at law against the defendant unsatisfied, the complainant is entitled to a discovery as to a trust created for the defendant’s benefit, by a third person, so that the court may see whether it is one upon which the complainant has an equitable claim for the satisfaction of his debt.
    The exception in the last clause of the section of the revised statutes which relates to proceedings in chancery upon creditors’ bills, relates to trusts held by third persons, for the benefit of the debtor or his family; but it does not extend to property in the debtor’s hands upon trust, and in which he has also a beneficial interest in himself.
    Upon a creditor’s bill, under the statute, which is a bill for a discovery in aid of the execution at law as well as for relief against property which cannot be sold on execution, the complainant is entitled to a discovery of all the real estate which the defendant owned, within the jurisdiction of the court of law, at the time of the docketing of the judgment.
    The complainant is also entitled to a discovery of all the estate or property which the defendant had at the time of filing the bill, or of putting in the answer in this court, although it is out of the jurisdiction of the court of law; as it may be reached through the medium of this court, or otherwise, upon the discovery being made.
    The facts of this case, so far as they are necessary to a correct understanding of the questions decided, are stated in the opinion of the court

      D. S. Jones, for the complainant

      W. Slosson, for the defendant
   The Chancellor.

This was an appeal from the decree of the vice chancellor of the first circuit, overruling a demurrer to a part of the complainant’s bill, and overruling a part of the exceptions.taken by the defendant to the master’s report, on exceptions to the answer. The hill was tied the 9th of January; 1830, upon the return of an execution at law, unsatisfied. The judgment at law was recovered upon a deed of covenant entered into by the defendant on the 1st of June, 1827 ; and the judgment in the superior court of the city of New-York was docketed the 15th of December, 1829 ; and an execution against the defendant’s property was issued the latter part of the same month. The bill charges that the defendant is entitled to, or interested in, or possessed of, personal property, money, bank stock, insurance stock, choses in action, &c. sufficient to satisfy the judgment; but that the complainant cannot discover and reach the same at law. And among other choses in action, merchandize and effects, the complainant refers to, as stiff belonging to the defendant, certain goods, merchandize and effects, balances, debts and sums of money, formerly belonging or due to Le Eoy, Bayard & Co., and assigned by them to the defendant in December, 1826. The bill further charges, that the defendant, since making the covenant on which the judgment was recovered, has made some assignments or transfers of his property upon some secret or other trust, for the benefit of himself, &c. And it prays a discovery of the property and effects of the defendant as they now exist, and the property he had at the time of making the covenant on which the judgment was recovered; and particularly as to the property and effects which were assigned to him by Le Eoy, Bayard & Co. and how he has disposed of the same.

The defendant demurs to so much of the biff as seeks a discovery of all or any of the property and effects which he had at the time of the execution of the covenant. This demurrer certainly is not well taken, as it seeks to excuse him from a discovery of any property which he had at the making of the covenant, although it may still be held by him, or by other-persons in trust for his use. The demands and property asigned to him by Le Eoy, Bayard & Co. are charged to have been so held at that time, and are of course covered by this demurrer. He answers that the property so assigned was held upon a trust created bythe assignors; but without explaining what that trust is. The exception in the statute relates to trusts held by a third person, for the benefit of the judgment debtor or his family, and created by persons other than himself. But it does not relate to property he himself holds in trust, and in which he has a beneficial interest, although the trust was created by a third person. Besides, it never was the intention of the statute to prevent a discovery of a trust created by a third person for the benefit of a judgment debtor, if any part of the consideration upon which it was founded proceeded from such debt- or. The exception relied upon is in the clause of the revised statutes which authorises the court to prevent a transfer of the trust- property, and it does not prohibit a discovery of the trust. It probably was intended to protect property, the subject of an express trust created by a parent or relative in behalf of, or for the support of an unfortunate child or relation; and which property had been placed in the hands of a trustee for the purpose of putting it beyond the reach of the cestui que trust, or his creditors. The complainant has a right to a full discovery from the defendant as to every trust created for his benefit, so that the court may see whether it is one on which his creditors have any equitable claim for the satisfaction of their debts. But if the trust turns out to be a trust of the peculiar character contemplated by the legislature, this creditor will not be able to obtain any decree respecting the same. It is not necessary for me to express an opinion upon any of the other questions embraced in this demurrer, though it is probably objectionable on several other grounds. I think it was properly overruled.

The first exception to the master’s report which was disallowed by the vice chancellor, relates to the 2d, 3d and 6th exceptions to the answer. The second and third of those exceptions relate to the goods and effects assigned to the defendant by Bayard & Co.; and, for the reasons before stated, the complainant is entitled to a full answer as to the matters of those exceptions. The sixth exception relates to the Stouder bond, and depends upon the same principle. The first exception to the master’s report was therefore properly overruled.

The complainant was entitled to a discovery of all the real estate of the defendant which he had within the city of New-York at the time of the docketing of the judgment, although such property may have been fairly disposed of since that time. In that case, though the discovery might not enable this court to reach the property by its own process, it would enable the complainant to reach it by an execution at law; which could be issued under the,sanction of this .court, notwithstanding the filing of the bill in this cause. (The Protector v. Lord Lumley, Conroy's Rep. 98.) This is a bill for a discovery, in aid of the execation at law, as well as for relief against property which cannot be levied on by execution. For that reason the complainant is entitled to a discovery of all the property, both real and personal, which the defendant now owns, either in the city of New-York, or elsewhere. If it is within this state it may hereafter be reached by an execution out of this court; and if elsewhere, the defendant may be compelled by an order of the court to transfer it, by a proper conveyance, to a receiver; to be sold and applied to the payment of the complainant’s debt. Even if no relief could be afforded by this court, the complainant having exhausted his remedy at law upon his judgment, would be entitled to a discovery for the purpose of enabling him to reach the defendant’s property through the medium of the proper legal tribunal. The whole of the second exception to the master’s report should therefore have been disallowed. But as the defendant alone has appealed, the order of the vice chancellor, which allows this exception in part, must be affirmed; without prejudice, however, to the right of the complainant to apply for a rehearing before the vice chancellor, as to the residue of that exception, if he shall deem it expedient to do so.

The fifth exception to the answer was well taken, at least to the extent allowed by the master. The third exception to the report was therefore properly overruled.

The whole of the decree appealed from must be affirmed, with costs; with liberty to the complainant to apply for a rehearing, as aforesaid, provided he makes such application within twenty days after the entry of the order of affirmance. If he elects to proceed upon the order as entered, without a rehearing, the defendant must put in his further answer, and pay the costs awarded by the vice chancellor, and the costs on this appeal, within twenty days after service of a copy of this order and copy of the taxed bill of costs, or an attachment may issue against him. The proceedings are to be remitted to the vice chancellor of the first circuit, that the further proceedings may be continued there.


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    D. & B. P. Rogers vs. Dibble.
    April 17.
    Where "a bill was’iiled. to correct an alleged mistake in a deed from D. B. to the defendant, and to obtain a perpetual injunction restraining the defendant from proceeding at law to recover the land alleged to have been included in the deed by mistake, or from disturbing an aqueduct across the premises in controversy, the complainant having purchased from D. B. subsequent to the conveyance to the defendant, and subject to a right previously granted to W. to take water from a mill dam to grind bark at his bark-mill, and to a passage or right of way over the premises in dispute, which right was granted to W. subsequent to the conveyance to the defendant, but previous to that to the complainant, Held, that W. was an incompetent witness for the complainant
    If an objection to the competency of a witness is made by the party against whom he is called, as soon as the interest of the witness is discovered, and the examiner overrules the objection, or reserves the question, or the party calling the witness insists upon proceeding against the decision of the examiner, the adverse party may cross examine the witness, and then move to suppress his deposition; or he may object to the competency of such witness on the hearing.
    Where the objection to tire competency of a witness does not appear upon the pleadings, or upon the testimony of witnesses previously examined, the party against whom the witness is called may raise the objection whenever the facts on which it is founded are disclosed by the witness.
    He may also at the commencement of tire examination raise the objection, that the witness is interested, and afterwards establish the fact of interest by other witnesses.
    This was an appeal from an interlocutory order of the vice chancellor of the fourth circuit, suppressing the deposition of Oliver Weston, a witness examined on the part of the complainants. The object of the complainants’ bill was to correct an alleged mistake in a conveyance from Daniel Boardman to the defendant; and also to obtain a perpetual injunction, restraining the defendant from suing at law for the recovery of the land which was alleged to have been included "in the deed by mistake; and to restrain him from disturbing an aqueduct running across the premises in controversy. The complainants purchased of Boardman subsequent to the conveyance to the defendant, and subject to a right or privilege which had been previously granted to Weston to take water from the mill dam to grind bark at his bark mill, and to a passage, or right of way, over the premises in dispute. This grant to Weston was also subsequent to the conveyance to the defendant, which was sought to be reformed.

      L. H. Palmer, for the complainants.

      J, Ellsworth, for the defendant.
   The Chancellor.

The witness, whose deposition has-been suppressed, appears to have an interest in establishing the claim of the complainants. Although a decree in favor of the defendant in this suit would not prevent this witness from litigating the same question over again with him, it does not follow that a decision the other way is one in which he has no direct interest. If the deed is not reformed, and the defendant recovers the possession of the premises in controversy, the witness, who has a claim prior in point of time to that of these complainants, will not be concluded by a litigation to which he is neither a party or privy. In that point of view he would only be interested in the question, and might still file a new bill in his own name to reform the deed, so far as it affected his rights. But it appears to me- that a decree in favor of these complainants must effectually protect him against any interference with his privileges by the defendant, although such decree should be founded on his testimony alone. The defendant, by bis suit at law, seeks to recover the posses-. sion of the way to the bark-mill, and of the land which is necessary to preserve the water privilege. The defendant cannot disturb the witness in the enjoyment of his privilege, unless he can obtain possession of the land in controversy. And if the complainants succeed in obtaining a perpetual injunction, or in reforming the deed, such possession never can be recovered. The witness is therefore directly interested in-maintaining that possession in the present complainants, and for that reason he was an incompetent witness.

The fact that Weston was the owner of the bark-mill, and was entitled to the water privilege and right of way over the premises in dispute if the claim of the complainants is sustained, was hot disclosed until after the witness’ direct examination had been commenced. The defendant then raised the objection to his competency. But the examiner proceeded with ins examination, notwithstanding the objection; which was noted at the end of the direct examination. It is now insisted that the defendant waived the objection, because he after-wards cross-examined the witness. It was formerly the practice to require the party objecting to the competency of a witness, to make the objection before the witness was sworn in chief. By the modem practice, however, if it appears from the witness’ own testimony, on his examination after he has been sworn in chief, that he is incompetent on account of interest, his testimony may be rejected. (Stone v. Blackburn, 1 Esp. R. 37. 1 T. R. 719. 6 John. R. 538.) And this, even after he has been examined as to his interest on his voir dire, and has been received as a competent witness. (Per Chase, C. J. 1 Harris & Johnson’s Rep. 573. Evans v. Eaton, 1 Peters’ C. C. Rep. 322.) The objection here was taken in time; because it did not appear that this witness was interested until after he was sworn and examined in chief. The objection was taken before his direct examination had closed; and, I presume, as soon as he testified to the facts which showed his interest.

The examiner having permitted the examination to proceed notwithstanding the objection, the defendant did not lose the right to apply for a suppression of the deposition by cross-examining the witness as to the merits. The case of The Corporation of Sutton Coldfield v. Wilson, (1 Vern. Rep. 254,) appears to support the position assumed by the appellants’ counsel. The objection was made that the corporators were not competent witnesses ; but, the reporter states, it at length appearing that the defendant had cross-examined some of the witnesses to the merits of the case, the lord keeper declared that made them good witnesses, though they were members of the corporation, and upon their evidence it was decreed for the plaintiff. If it was a question resting in any manner in the discretion of the court, Lord Guilford was certainly right in overruling the objection to the competency of the witnesses in that case ; as their interest as corporators in a municipal corporation was, at most, only nominal. I cannot find, however, that this case has been followed or sustained by any decision in England of a recent date. In the case of

The Charitable Corporation v. Sutton, (2 Atk. Rep. 403,) Lord Hard wicke. appears to put his opinion upon the ground that the defendants had not only cross-examined the witness, but had actually read his deposition at the hearing. On the othfer hand the case of Scott v. Fenwick is referred to as reported in Chjoillm’s collection of tithe cases, in which it was held that the party did not waive an objection to the competency of a witness merely by cross-examining»him to the merits. (3 Gwill. 1255.) And this last decision is followed by Sir William Grant in the case of Moorhouse v. De Passau, (Cooper’s Eq. Rep. 300. 19 Ves. 433, S. C.) In Vaughan v. Worrall, (2 Mad. Rep. 322,) Sir Thomas Plumer permitted witnesses to be examined by new interrogatories as to their interest, after the party making the application had examined them upon cross interrogatories as to the merits. In Perigal v. Nicholson, (Wightw. Rep. 64,) the court of exchequer rejected the deposition of a witness who appeared to be interested, although the party making the objection had cross-examined him as to the merits. And in a very recent publication upon the practice of the court of chancery in England, it is laid down as a settled principle, that a deposition of a witness may fee suppressed, if it appears from the deposition that the witness was interested; and that his being cross-examined will not be a waiver of the objection. (1 Brown's Ch. Pr. 92.)

In this state, since the passing of the statute allowing of the examination of witnesses openly, I believe it has been the uniform practice to permit a party to cross-examine bis adversary’s witnesses without prejudice to his right to move to suppress their depositions on the ground of incompetency. The only restriction imposed upon a party in such cases is, that he should make the objection to the competency of tlje witness in due season, so -that his adversary may have an opportunity to remove the objection by a release, or otherwise; or to supply the defect in his testimony by other witnesses, if possible. (2 Paige’s Rep. 60. Rule, 85. And see 7 Wendell’s Rep. 180.)

The course pursued at law now forms a proper guide for parties in the examination of witnesses in this court. Where it appears upon the face of the pleadings that the witness is incompetent, the adverse party may object to his examination in the first instance. If the examiner overrules the objection or reserv,es t]le question, or the party insists upon proceeding against the decision of the examiner, the adverse party may cross-examine the witness to the merits, and then move to suppress the deposition ; or he may object. to the competency of the witness on the .hearing. Where the objection does not appear upon the pleadings, or upon the testimony of witnesses previously examined, the party against whom the witness is called may raise the objection whenever the facts on which it is founded are disclosed by the witness. He may also, at the time of the examination, raise the objection that the witness is interested, stating in what that interest consists, and may afterwards establish the fact of interest by other witnesses.

The witness, Weston, was incompetent; the objection was properly taken in this case, and it was not waived by the subsequent cross-examination by the defendant. ' The order suppressing the deposition must therefore be affirmed, with costs.

         See also Harrison v. Courtauld. 1 Russ. & Myl. Rep. 428.


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    Jenkins vs. Van Schaack and wife.
    Where a testator, having two sons and a daughter, devised a certain portion of his real estate to one of his sons in fee, and directed that in the event of such son’s intermarriage and thereafter dying without leaving'lawful issue, the real estate so devised should go to, descend and be the property of his daughter, her heirs and assigns forever, she surviving him; and the devisee afterwards, in the life time of iris sister, died intestate, without.issue and without ever having been married; Held, that tire limitation over to the sister did not take effect.
    Where a person who has an annuity charged upon certain real estate, inherits one half of such estate as the heir at law of the devisee of the grantor of the annuity, one half of such annuity becomes merged by the descent thus, cast upon him.
    By the revised statutes, the court of chancery has concurrent jurisdiction with courts of law in suits for the partition of legal estates.
    It is not necessary to aver in the bill for partition, that the complainant is in possession of the premises, as that fact is presumed from the allegation that the parties are seised in common.
    If there has been an ouster of the complainant, or the premises in question are held adversely, that defence should be set up by plea or answer.

      April 17.
    This was a bill for partition. The complainant claimed one half of the premises, as the brother and one of the heirs at ... law of Jenkin Jenkins, deceased. The premises in question were formerly the property of David Jenkins, the father of the complainant, and of the defendant Elizabeth Van Schaack. David Jenkins, by his will, devised the premises in question to Jenkin Jenkins, who was then unmarried, and to his heirs and assigns forever; upon condition that the devisee pay to the complainant an annuity of $10,50, during his natural life. He also devised certain other real estate to his daughter Elizabeth, who was then married to Van Schaack, and to her heirs and assigns forever, subject to the payment of the like annuity of $10,50 to¡ her brother John Jenkins, the complainant, during his natural life. And after disposing of certain bonds and mortgages, &c. the will contained the following clause : • “ It is my further will and desire, and I do hereby so order and direct, that in the event my said son Jenkin Jenkips should intermarry and thereafter die without leaving lawful issue, the real estate herein above devised and bequeathed to him, shall go to, descend, and be the property of my said daughter Elizabeth, her heirs and assigns forever, she surviving him. And should my said daughter Elizabeth Van Schaack die without leaving lawful issue on her own body begotten, then and in that case the real estate herein above devised and bequeathed to her shall go to, descend, and be the property of my said son Jenkin Jenkins, his heirs and assigns forever, he surviving her.” Jenkin Jenkins died intestate in-1830, without issue, and without ever having been married; leaving his sister surviving him.
    The defendants demurred to the bill for want of equity. They assigned as causes of demurrer, that a court of law was the only proper tribunal to settle the construction of the will, and to decide upon the rights of the parties under the same. And also that by the true construction of the will, the title to the whole of the premises in question was vested in the defendant Elizabeth Van Schaack, on the death of her brother Jenkin Jenkins.

      M. T. Reynolds, for the- complainant.
    ,/. I. Ostrander, for the defendants.
   The Chancellor.

It is undoubtedly a leading principle in the construction of wills, that the intention of the testator must govern, provided such intention can be ascertained from the whole will taken together, and the same is not contrary to law. It cannot be permitted, however, to substitute vague suspicion in the place of fair and legitimate evidence of intent. Where plain and explicit language is used by the testator to express his meaning, the court cannot presume he meant something else; unless upon the examination of the whole will it is evident he did not mean what the language of the particular clause naturally imports. The court cannot reject words in a will which have an obvious meaning, upon the mere suspicion that the testator did not understand the import of the language which he used to express his intention. That would be to make a will for him, instead of declaring what was the legal meaning of the will he had made for himself. Full effect should be given to each clause, and to every expression in the will, if they can all stand together consistently with the general intention of the testator.

In this case the premises in question.were devised to Jenkin Jenkins, in fee, subject to the contingency of his intermarriage, after the making of the will, and dying after such marriage, in the life time of his sister, without leaving lawful issue. What is there, then, in this will to authorize the court to say the testator did not intend his son should have the right to sell the estate, or to dispose of it at his death as he pleased, if he never married; in the same manner as he was authorized to do if he married and had children who survived him 1 It must be borne in mind that it was not the intention of the testator to give the estate to the issue of the son, but to give it to the son, absolutely, if he had issue who survived him. The principal object of this limitation over, then, must have been to prevent the wife from obtaining dower; or to prevent his son from giving the property to his wife or her relatives, if he should many and have no issue who might be claimants on his bounty. The limitation over of the estate devised to the daughter is somewhat similar. If she should have issue who survived her, the estate was given to her absolutely, so that she might sell it in her life time. And if not sold by her, and „ the husband survived, he would be entitled to an estate for life, after her decease, as tenant by the curtesy. But if she died without issue, and her brother and husband both survived her, the estate of the husband would have terminated at her death, although there had been children of the marriage who died before her.

It is very probable thát, for some reason which does not appear, the testator did not think proper to give any part of his property to this complainant, except the two' small annuities mentioned in the will. But I see no evidence upon the will itself that the testator intended to prohibit John from taking the property by descent from his brother, in the event which has happened; or to prevent that brother from giving him the whole of the property, at his decease, if he thought proper to dispose of it in that manner. Whatever may have been the intention of the testator, he has made no valid limitation over to the sister, in the case which has occurred ; and one half of the estate devised to Jenkin Jenkins is cast by descent upon the complainant.

As he takes this moiety of the estate as the heir of his brother and not as heir to the testator, the annuity charged upon the estate, by the will, is not inconsistent with the right he now claims to that moiety. The half of the annuity, which is chargeable upon his share of the lot, is merged by the descent cast upon him of that share; but the other half of the lot, which descended to the sister, still continues hable for the payment of a moiety of the annuity.

The objection cannot be sustained that the complainant had a perfect remedy at; law. This courtj by the revised statutes, has a concurrent jurisdiction with the courts of law in suits for the partition of legal estates. (2 R. S. 329, § 79.) And there is no allegation in this bill .that the possession is holden adversely to "the claim of the complainant. If there had been an actual ouster of the complainant by his co-tenant, or if the land was held adversely, it might be necessary to regain the actual seisin, by ejectment, before a suit for partition of the premises could be sustained either at law, or in equity. (2 R. S. 317, § 1. Revisors’ notes to § 1 & 19. Clapp v. Bromagham, 9 Cowen's Rep. 530.) It is not necessary, however, to aver in the bill that the complainant is in possession of the premises, as that will be presumed from the allegation that the parties are seised in common. If the complainant has been ousted of his possession, or the premises are held adversely, the defendant should set up that defence by plea or answer.

The demurrer must be overruled, with costs.