text:
    Mills vs. Hoag.
    A decree which finally decides and disposes of the whole merits of the cause, and reserves no further questions or directions for the future judgment of the court, so that it will not be necessary to bring the cause again before the court for its further decision, is a final decree.
    The decree may be final although it directs a reference to a master, if all the consequential directions depending upon the result of the master’s report arc contained in the decree, so that no further decree of the court will be necessary, upon the confirmation of the report, to give the parties the full and entire benefit of the previous decision of the court.
    Proceedings in the court of chancery must be instituted and carried on in the names of the real parties to the litigation; and where the complainant sells his whole right to the subject matter of the suit, either before or after a decree, the purchaser cannot carry on the suit for his own benefit, in the name of the vendor, if there is to he further litigation therein.
    Where a party against whom a final decree has been made, sells his right to the subject matter of the suit, an appeal from such decree in the name of the party against whom the same was made cannot be sustained. But if the purchaser is entitled to. appeal, he must make himself a party to the suit, and bring the appeal in 1ns own name.
    It seems, that after a decree against the right of a party has been made, such party cannot dispose of his claim to another so as to give the latter a right to appeal from the decree.
    August 28.
    This was an application to dismiss an appeal from a decree of the vice chancellor of the eighth circuit. The irregularity in the approval of the appeal bond was not denied by the appellant’s counsel. One of the sureties named in the bond had not executed the same, and it had been signed and sealed by another person not named therein/ The appellant’s counsel asked leave to amend, or to file a new bond properly approved. On the part of the defendant, however, it was shown that after the entry of the decree, and before the filing of the appeal, the complainant sold the land which had formed the subject of the suit and which had been decreed to the defendant, to enable the purchasers to continue the litigation for their own benefit, by bringing and prosecuting an appeal from the vice chancellor’s decree; and that the appeal was in fact brought for the benefit of such purchasers solely. The counsel for the respondent therefore insisted that such sale was illegal; or if legal, that the purchasers should have made themselves parties to the suit, and should have brought the appeal in their own names, as the only persons now interested in the subject matter of the appeal. He also insisted that the appeal was not entered within the time limited by law for appealing; and that it was now too late to amend the proceedings.

      A. Taber, for the appellant.

      N. Hill, jun. for the respondent.
   The Chancellor.

The appeal in this cause, if regular, was brought in time. The decree was final, and not interlocutory, as it finally disposed of the subject of litigation so far as the court was concerned. Chief Justice Savage defines a final decree to be the last decree which is necessary to be entered to give to the parties the full and entire benefit of the judgment of the court. The decree in this case comes within that definition, as no further questions or directions are reserved for the future judgment of the court. And although some further proceedings are to be had before a master to carry into effect the decree, all the consequential directions depending upon the result of those proceedings are given in the present decree. It is true there may be exceptions to the master’s report; and in that case a further order of the court will be necessary to dispose of those exceptions. But a decree is not the less final in its nature because some future orders of the court may possibly become necessary to carry such final decree into effect. The usual decree in mortgage cases, for the sale of the property and the distribution of the fund among the parties and finally disposing of the question of costs, is a final decree as between the complainant and the defendants, and is constantly enrolled as such; although the master’s report of the sale and distribution may be excepted to if it is erroneous, and it may require a subsequent order of the court to dispose of the questions which may thus avise,

There is no doubt, however, that the appeal bond is irregular ; and the motion to dismiss the appeal should be granted, unless it is a case in which it would be proper to permit the appellant to amend, or to file a new bond properly executed and approved. The appeal itself is not in the usual form, as the notice is that the solicitor has appealed. This probably was a mere inadvertence in drawing the notice of the appeal; and as the same is signed by Goff as solicitor for the complainant, I shall consider it as the appeal of the complainant, by his solicitor, in deciding the other questions which arise upon this application. From the affidavits before me, which the appellant has not attempted to contradict or explain although he has had an opportunity to produce affidavits in opposition thereto, I must consider the fact as undeniable, that after the final decree of the vice chancellor against the complainant as to the right to the farm which had formed the subject matter of the litigation in this suit, he sold all his interest in the farm, and the right to review the decision on appeal, to other persons who were mere strangers to the suit; and that this appeal is now brought in the name of the vendor by them and for their own use and benefit. Upon this state of facts it is necessary, perhaps, to enquire whether the sale of the right to continue the litigation, under such circumstances, can be sustained upon the principles of public policy. In Wilder v. Keeler, (3 Paige’s Rep. 166,) where a claim had been purchased under circumstances somewhat similar, I refused to relieve the purchaser, who was, as in this case, asking permission to litigate his claim to the subject purchased, as a matter of favor and not of strict right. And in Prosser v. Edmonds, (1 Young & Coll. Rep. 497,) Lord Abinger says, “ It is a rule, not of our law alone but of that of all countries, that the mere right of purchase shall not give a man a right to legal remedies. The contrary doctrine is no where tolerated, and is against good policy. All our cases of maintenance and champerty are founded on the principle that no encouragement should be given to litigation, by the introduction of parties to enforce those rights which others are not disposed to enforce.” Applying that principle to the present case, I think the purchasers of this right to appeal from a final decree against the vendor, arc not entitled to come here to ask the aid of the court, as a matter of favor merely, if they have made, a slip by which their strict legal rights are at an end.

But even if purchases of this kind were both legal and meritorious; the right of appeal is gone and cannot be restored by amendment, as the appeal is not in the name of the proper parties. In this court the proceedings must be carried on in the names of the real parties, so far at least as the rights of the complainant are concerned, although there has been a change of interest subsequent to the commencement of the suit. But the rights of the adverse party cannot be prejudiced by any sale of the subject matter of the suit, merely voluntary, pendente lite. Where the complainant sells his whole right in the suit, or it becomes wholly vested in another by operation of law, whether before or after a decree, if there is to be any further litigation in the case, it cannot be carried on, in the name of the original complainant, by the person who has acquired the right. And if the complainant’s interest is determined by a voluntary assignment, the assignee must make himself a party to the suit, by an original bill in the nature of a supplemental bill, before he can be permitted to proceed. (Milford’s Pl. 65. Binks v. Binks, 2 Bligh’s Rep. 593.) The complainant, therefore, was not the proper party to appeal after he had sold all his interest to others; and this court will not permit the appeal to be carried on in his name for their benefit.

The appeal must be dismissed with costs.

       See Cholmondeley v. Clinton, 4 Bligh's Reports, O. S. 45,90


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Wells vs. Smith.
    Where a contract for the sale of a city lot contained a provision that the. purchaser should on or before a particular day specified build and enclose a house upon the front of the lot, or that in lieu thereof he should on that ■ day pay to the vendor $1000 as the first payment towards tho purchase money; and the contract further provided, that if the vendee neglected or failed to perform any of the covenants therein contained at the times limited for that purpose, all his right or interest in the premises, cither in law or in equity, should cease; Held, that the parties had made the payment at tho day an essential part of the contract; and that the vendee, who had pot attempted to build the house upon the lot, and who had without any legal excuse failed to make the payment at the time specified, was not entitled to a decree for a specific performance of the contract.
    The vendor is not bound to tender a deed of the premises and to demand payment of the purchase money, except for the purpose of enabling him to affirm the contract and to recover tho purchase money in a suit at law. And whore the payment of the purchase money at a particular day is made an essential part of the contract, if the vendee wishes to entitle himself to. a specific performance, he must tender or offer to pay the money to the ven-, dor, at the time specified, upon the receipt of a deed of the premises.
    August 28.
    This was an appeal from the decree of the vice chancel™ lor of the first circuit dismissing the complainant’s bill. The facts of the case and the vice chancellor’s opinion are contained in the report of the case before him. (See 2 Edw, Ch. Rep. 78.)

      S. P. Staples, for the appellant.

      R. Bogardus, for the respondent.
   The Chancellor.

This bill is filed to compel a specific performance of a contract for the sale of a lot of land in New-York, the complainant having failed to perform the contract on his part within the time stipulated. And the only questions are, w'hether upon an executory contract of sale, parties may make time an essential part of the contract, so that this court will not relieve against a non-compliance at the day; and whether it was the intention of the parties in this case to make the payment of the money on or before the time stipulated an essential part of the agreement.

There cannot be a doubt that it was the intention of the parties in this case to make the time specified an essential part of the contract. It is hardly possible to make language more explicit. The contract was, that if the complainant failed or neglected to perform all or any one of the covenants therein contained on his part, at the time or times therein before limited, then and in such case all the covenants and agreements on the part of the defendant should cease and be absolutely void ; and all the complainant’s right or interest in the premises either in law or equity should cease, &c. And one of the covenants on the part of the complainant was, to build and enclose a house upon the front of the lot on or before the first of August, or in lieu thereof, that he should on that day pay to the defendant one thousand dollars as the first payment towards the purchase money. The complainant had his election to do one or the other, as was most convenient for him; but if he did neither, it was unquestionably the intention of both parties that the defendant should be no longer bound by the contract. And although Mrs. Smith afterwards consented to modify the contract, so far as to permit him to pay the whole instead of a part only of the purchase money on the day—he not having attempted to build the house—she gave him fair notice that if he suffered the day to pass, without paying the amount stipulated in the contract, she should avail herself of the condition expressed in the agreement and refuse him the deed.

The vice chancellor is right in supposing that the defendant was not bound to prepare and tender the deed until the complainant paid or offered to pay the money. If she wished to compel a performance of the agreement and recover the money, in a suit at law upon the covenants, it might be necessary perhaps that she should have made a tender of the deed, and offered to deliver the same upon the payment of the SI000 and the delivery of a bond and mortgage for the residue of the purchase money. On the other hand, if the purchaser wished to comply with the contract so as to have the benefit thereof, he should have tendered the money at the day; or have offered to pay the same, and to execute the bond and mortgage for the residue, upon the delivery to him of a deed of the premises. And if he wished time to examine as to the validity'of the vendor’s title, he should have called for the abstract of title in season to enable his counsel to examine the title before the day upon which the money was to be paid and the conveyances executed. But he had no right to call upon the defendant to make out the deed itself, or to furnish him with a draft thereof, previous to the time when the deed was by the terms of the agreement to be delivered.

As to the power of the vendor, or of the purchaser, to make the performance of a condition precedent essential to the vesting of a legal or equitable right in the adverse party to a specific performance, I have no doubt; though this court may perhaps relieve against a forfeiture where it would be unconscientious to insist upon a strict and literal compliance. Thus if a vendor, after he had received the greater portion of the purchase money, should attempt to enforce a forfeiture of the money paid, under a stipulation that he might keep the whole amount thus received and the premises also if the last payment was not made at the day, I am not prepared to say that this court would not interfere to compel him either to accept the last payment and convey the premises, or to restore the purchase money already paid; after deducting a reasonable allowance for the use of the premises in the mean time.

In this case, however, the interest of the money till the first of August, and the shop which the complainant agreed to leave on the premises if he did not perform his part of the contract at the day, are not probably more than the value of the use of the premises in the meantime and of the chance of gain to the purchaser by the probable increase in the value of the property. They may, therefore, very properly be considered as reasonable stipulated damages for the non-performance of the contract by the vendee at the time fixed upon by the parties, and are not properly a forfeiture. Although in theory the interest is supposed to be a fair equivalent for the non-payment of money at the time agreed upon, we all know that in point of fact, the person to whom it is due frequently sustains great losses in consequence of the disappointment, which the legal rate of interest cannot compensate. On the other hand, it frequently happens that the perfecting of the title and the delivery of the possession of the premises at the time contemplated by the purchaser is of essential benefit to him ; which cannot be compensated by damages which are ascertainable by the ordinary rules of computing damages. It would therefore not only be unreasonable, but entirely unjust, for any court to hold that parties, in making executory contracts for the sale or purchase of real estate, should not be permitted to make the time of performance an essential and binding part of the contract in equity as well as at law, where, as in this case, the other party was fully apprised of the intention to insist upon a strict performance at the day.

Here there was no such impossibility as might not have been foreseen and provided against by proper care and vigilance. Under such circumstances, .if the property had very much increased in value after the making of the original contract, the defendant is fairly entitled to the benefit thereof under the agreement by which the complainant contracted to relinquish all claims upon the property, either at law or in equity, if he did not comply with the terms of the agreement at the day. And as there is nothing inequitable or unconscientious in her insisting upon this part of the contract, I think the vice chancellor was right in not making a new contract for her, contrary to the understanding of both parties when they entered into this agreement.

The decree appealed from is therefore affirmed, with costs. ,


text:
    Hutchinson vs. Smith and others.
    WHefe á partnership is dissolved by the death of one of the cbpartfteri, the property and effects of the firm must be applied in payment of the copartnership debts in preference to debts due by the individual members of the firm. And the" surviving partner has therefore no right to assign the partnership effects for the payment of such individual debts, and to leave the debts of the firm unprovided for.
    If the money of a third person, which is in the hands of one of the members of ■ a copartnership" as a trustee or otherwise, is applied by him to the use of the firm with the knowledge and consent of all the copartners, such third person has a claim upon the company for the repayment of the money.
    Previous to the adoption of the revised statutes, the surviving copartner might, with the assent of the legal representatives of the deceased partner, make a valid assignment of the copartnership effects to a trustee for the payment of the debts of the firm, giving therein a preference in payment to some of the creditors over others.
    It seems, that since the adoption of the revised statutes, the surviving member of an insolvent firm is not authorized to give such preference to some creditors of the firm over others; and that an assignment of the partnership effects to a trustee, for the purpose of securing a preference to some of the creditors is invalid.
    August 28.
    The facts in this case are so fully stated in the opinion of the chancellor, that it is deemed unnecesary to repeat them here.
    The following opinion was delivered by the vice chancellor upon making the' decree appealed from:
    Gardner, Y. C. The first question in this case is, whether Phelps as surviving partner had the right to transfer all the partnership property to assignees for' any purpose. As a copartner, he had the right to buy and sell, pay and receive, and to bind the firm by his contracts." (16 John. Rep. 491.) He possessed the power, under certain circumstances, to make a valid assignment of all the partnership effects for the purpose of paying the debts of the firm during the lifetime of his copartner. (Harrison v. Steny, 5 Cranch, 289. 3 Paige, 519.) As surviving partner, he had a legal title to the partnership effects. And in equity he is considered a trustee to pay the partnership debts, and to dispose of the effects of the concern for the benefit of himself and the estate of his deceased partner. (3 * Paige, 398.) Clothed with the legal authority to dispose of the partnership effects, it follows that the exercise of that authority will be sustained in equity, if the disposition be for the common benefit of himself and the estate of his deceased partner. This principle is established in the case of White v, Union Iron Co. (1 Nott <§• McCord's Rep. 556,) where the assignment made by a surviving partner was held valid. It was urged by the complainant’s counsel that a personal confidence was reposed by each member of the firm in his copartner, in his skill, integrity,. &c. and that, this could not be delegated to others. The answer is, that an assignment is a measure frequently resorted to in mercantile transactions, in order to wind up the affairs of a copartnership. Circumstances frequently occur which renders such a proceeding not only expedient, but indispensably necessary for the best interests of the copartners and their creditors. Why, then, may not the confidence which is reposed extend to this measure as well as others ? and why may not the skill, the sound discretion, and the integrity of a co-partner be exercised in ascertaining the time when, and the manner in which, an assignment should he made, as properly as on selecting the provisions of any other contract in behalf of the copartnership 1 There is certainly no authority for the distinction, and there seems to me to be none in principle. Admitting, however, the authority of Phelps to assign the choses in action of the firm, it was objected that authority did not extend to the stock in trade.
    It is said that as to the goods and chattels, he was but a tenant in common with the personal representative of the deceased partner. But is not this doctrine confined to the surplus,after the copartnership debts are satisfied? A copartnership is not absolutely dissolved by the death of one of the partners; it has a limited continuance, for the purpose of settling the affairs of the concern, and this duty devolves-exclusively upon the surviving partner, and therefore he is entitled to the possession of the goods and chattels. {Allen
      v. Kible, 4 Mad. Rep. 469.) Chancellor Kent says the surv^™§ partner is alone suable at law, and he is entitied to the possession and disposition of the assets, to enable him to discharge the debts and settle the concern. (3 Kent's Com. 63. Kemp v. Andrews, Carthew’s Rep. 170.) But if I am wrong, in this case we have the assent of the administrator of Smith to this assignment. Cuyler, one of the defendants, is both assignee and administrator. His assent is therefore presumed. It is objected, however, that he is one of the preferred creditors, and therefore has a direct interest in sustaining the assignment. The answer to this objetion, I think, is furnished by the case of Egberts v. Woods, (3 Paige, 526.) The chancellor there says, the administrator has the right to insist that the partnership effects shall be applied to the payment of the debts of the firm, as the estate of the deceased may be made eventually liable for the payment. He has, however, no interest in the question as to what debts shall be paid first, in case the partnership effects are insufficient to pay the whole. And the legal right being vested in the survivor, he alone has the right at law to determine this question.
    It appears from the proceedings in this case that the firm was insolvent at the death of Smith. Phelps as surviving partner has determined the question of priority, and the sole duty of Cuyler as administrator was to see that the partnership effects were applied to the payment of the debts of the firm ; and that I assume to have been done by the terms of the assignment. If I am correct in this supposition, I can perceive nothing in the fact that Cuyler was a preferred creditor, that should operate against the assignment to deprive him of the right of assenting thereto if his assent was necessary.
    Another objection to the assignment is, that it secures a debt due to the county of Monroe, which debt, as the bill charges, was a private debt of Smith’s. Smith it seems was treasurer of the county, and the answer, which in this respect is responsive to the bill, states that the monies received from the different collectors were, mixed with and used in the same manner as the other funds of the firm, &c. The trust fund, with the knowledge and approbation of Phelps, was therefore received and appropriated by the firm to the use of the copartnership. I can perceive no good reason why this might not be reached in equity in their hands; at least, in case of the insolvency of the sureties of Smith, as both parties have assented to the appropriation of the money to the business of the concern.
    If the creditors are now reaping the advantage by the appropriation of the increased dividend which they will receive, with what propriety can the assignment which provides for the payment of the same be deemed a fraud upon either ? At all events, the personal representative of Smith has no reason to complain. If it was a private debt, then the estate of Smith would be exclusively liable. And if the estate of Smith is not injured, his representatives would have no right in equity to impeach the assignment. Suppose this ground: are the creditors of the firm in any better situation 1 They have no lien, no equity against the joint effects but such as they claim through the medium of the partners themselves. As against creditors, says the chancellor in the case cited, if the creditor of the firm does not take the remedy that the law gives him by actions and by proceedings to seize the joint effects, he has no lien upon them. His equity to have the joint effects applied to the joint debts is through the medium of the deceased partner. {Ex parte Petra, 2 Vesey <§• Beams, 172. Campbell v. Mendil, 2 Swanst. 575. 1 Mad. 197.) It seems to me that these authorities dispose of the objection, even if the answer and the assignment furnished no evidence that this demand was legally and equitably due from the copartnership.
    The last objection is, that the assignment was procured from, Phelps by false representations. This is denied by the defendants ; but they admit that they told him that it was his duty to assign, and that it would be for his interest. Phelps had undoubtedly the right to secure or pay one creditor in preference to another. And in Grover v. Walternan, the chancellor says that the right is founded upon the supposition- that there may be creditors who may have peculiar claims upon the property of the debtor, and of which the surviving partner was the most competent to judge. When these peculiar claims exist, and they are to be found in this case it any where, it surely cannot be deemed fraudulent in creditors to urge the exercise of this right in reference to their claims as a duty upon the part of their debtor. The expression as to the interest of Phelps is not entitled to very grave consideration as an evidence, of fraud. The defendants might have honestly supposed that an assignment was called for by the best interest of the co-, partnership; and of course, the measure in that case would be for the interest of Phelps. It might be for his interest, so far as his reputation and future prospects were concerned, since the commercial community view the neglect or refusal of a debtor to secure his confidential creditors, as highly dishonorable. They could not mean, nor could Phelps so understand it, that he was to reap any pecuniary advantage at the expense of the creditors. For by the assignment he lost all the control of the property, and they acquired it, subject to the trust; and for the faithful execution' of which they must have known that they would be held strictly responsible.
    Upon the whole case, I am of the opinion that the bill must be dismissed .with costs, as to Smith, Cuyler and Caldwell.

      S. Stevens, for the appellants.
    The assignment under which the defendants claim the property, credits and effects of the late firm of Smith & Phelps, is utterly void. Phelps, the surviving partner of Smith & Phelps, had no legal or .equitable authority, after the dissolution of the partnership, by the death of Smith, to make a general assignment of all the partnership property and effects to trustees, in trust, and to give preference to one class of creditors over another. (Gow, 54. 5 Paige, 31. Gow, 253, 256, 257. 1 Cowp. R. 148. Gow, 240. 3 Kent's Com. 55, 57, 58, 59. 4 John. Ch. R. 685. 1 Paige, 398. 4 John. Ch. R. 522.) The assignment gives a preference to a large debt due' from Smith to the county of Monroe, as treasurer of the county, over, the creditors of the firm. Cuyler, one of fhe defendants and assignees, is one of the sureties of Smith as treasurer. Smith is admitted, to have died insolvent. This is a fraud upon the postponed creditors of the firm, perpetrated to subserve the interests of one of the assignees, which should render the assignment void. The assignment was obtained by the defendants by misrepresentations, and by taking undue and improper advantage of the time when and the circumstances under which it was obtained. The assignment being void, the defendants acquired no right or title to the property and effects of the firm under of by virtue thereof. If the assignment shall be deemed valid as to the partnership securities or choses in action, still it is submitted that it is void as to the residue of the property, consisting of the stbck of goods, &c. as to which the surviving partner was merely tenant in common with the representatives of the deceased partner.

      J. Rhoades & C. M. Lee, for the respondents.
    The assignment was fairly and properly obtained from Phelps, by the respondents Smith and Cuyler. (Cunningham v. Freehorn, 3 Paige, 557.) The debt due to the county of Monroe was a debt of the firm. Phelps, the surviving partner, had a legal and equitable right to make such assignment; and he had also the right and the power to give preferences. (Egberts v. Wood, 3 Paige, 521.) The necessary parties are not before the court to warrant a decree for the specific relief prayed for by the bill; and that relief is inconsistent with any relief which can be granted under the general prayer.
   The Chancellor.

This is an appeal from a decree of thé vice chancellor of the eighth" circuit, dismissing the complainants’ bill with costs as to the defendants, who appeared and answered. The facts upon which the rights of the parties depend are, for the -most part, undisputed. It appears that Samuel M. Smith of Rochester purchased a stock of goods, and commenced the business of merchandise on the first of January, 1827; at which time, and down to the time of his death, he was the treasurer of Monroe county. That in the spring of the same year, he made a con-about the first of August in the same year Smith agreed to take into partnership with him, in the business, L. A. Phelps, who had previously been his clerk; that they agreed that the partnership should be deemed to have commenced on the first of January; that the stock of goods which Smith had then on hand should be put into the concern; and that the debts due from Smith on account of goods subsequently purchased, and before the first of August, should be paid out of the proceeds of the sales thereafter to be made and the debts due for goods already sold. Phelps was to put $1000 into the firm, and Smith was to draw certain specific sums out' of the proceeds of the sales, for his own private use. Smith was then to be permitted to retain $500 out of the profits of the business; and the residue of the profits were to be divided equally between the partners. The business was continued under this arrangement until the latter part of July, 1829, when Smith died; at which time, as it after-wards appeared, the firm was insolvent. Immediately after the funeral, the defendants Cuyler and P. Smith, who were liable for large sums as endorsers for the firm, and as sureties in the bond to the county for the faithful performance of S. M. Smith’s duties as treasurer, persuaded Phelps, the surviving partner, to make an assignment of all the partnership property and "effects to them and J. Caldwell, to be applied to the payment of those debts, and to distribute the residue, if any, ratably among the other creditors; which was done accordingly. And a few days thereafter letters of administration on the estate of S. M. Smith were granted to the defendant Cuyler, one of the assignees. The funds assigned were not sufficient to pay the debts of the firm by several thousand , dollars. And the complainants, who were not among the preferred creditors, having obtained judgments for their debts and issued executions thereon, filed their bill to set aside the assignment and to have the partnership effects applied to the payment of their debts. siderable addition to his stock of goods; a part of which was paid for by money in his hands as county treasurer. That

One of the objections made to the assignment is, that the money due to the county is not a debt for which the partnership was liable; but that it was the private debt of S. M. Smith, the deceased copartner. If this were so, the assignment, so far as it provides for the payment of that debt before the payment of all the debts of the firm, could not certainly be sustained; for upon the death of one of the partners, the copartnership funds must be applied to pay the debts of the firm before the separate creditors can have any claim thereon. I think, however, upon the pleadings in this case, and neither of the parties have introduced any proofs to sustain their respective allegations, the debt to the county must be considered as a partnership debt. It is stated in the assignment to be a debt due from the firm. And the defendants in their answer state upon their information and belief facts, which if they really existed at the time of the death of S. M. Smith, would have rendered the copartnership liable for the monies which had come to his hands as the treasurer of the county. (Smith v. Jameson, 5 Term Rep. 601. In the case oí Jaques v. Marquand, (6 Cowen’s Rep. 497,) the supreme court very correctly decided that my agent to whom I have entrusted monies, or who has received monies for my use, cannot, by putting those monies into a mercantile firm in which he is a copartner, destroy my claim against him individually, and make me a creditor of the firm without my consent. But the court in that case did not decide that if my money is applied to the use of the firm, with the knowledge and consent of all the copartners, although without my consent, I may not elect to consider the firm as my debtors, and recover the money they have thus received, in an action for money had and received to my use. The case might perhaps be different if the partner had used the money in the business of the firm, and credited himself with it in the accounts of the firm without any knowledge on the part of his copartners that the money thus used belonged to another person. Although the facts set up in this part of the answer are not stated as matters within the knowledge of the defendants, they are sufficient to put in issue the allegation in the bill that this was not a debt for which the partnership was liable ; so as to require some evidence on the part of the complainants to sustain that allegation in the bill, and to show that the recital contained in the assignment was false. Again; as I understand the terms of the copartnership, as stated in the bill, it appears by the complainants’ own showing that the firm was liable for the money of the county which had been applied to the purchase of goods for the firm in the spring of 1827. Although this purchase was made previous to the formation of the copartnership, yet when it was formed, by the express agreement of the parties it was to have relation back to the first of January, 1827. The stock of goods then on hand was to be considered as put into the firm, and the goods which had been theretofore purchased were to be paid for by the firm; or rather, the debts contracted for goods after the first of January, 1827, were to be thus paid. If the funds of the county, therefore, had been applied for the purchase of goods subsequent to the first of January, 1827, that debt, by the terms of the copartnership articles, was to be paid by the firm out of the proceeds of the sales of the goods. On the whole, there can be very little doubt that this debt to the county was one for which the partnership was liable; and which for that reason might properly be provided for in the assignment, if the assignment itself was proper in other respects.

It does not appear to be settled what is the precise nature of the interest of the surviving partner in the personal property of the firm in possession, at the death of his co-partner. Some writers appear to consider the surviving partner as a mere tenant in common with the personal representative of the deceased partner in the goods, at law as well as in equity; while others consider him as having the whole legal title, but subject to the claims of the creditors of the firm, and to the equitable rights of the personal representatives of the decedent. In the recent case of Newell v. Townsend, (6 Sim. Rep. 419,) the vice chancellor considered the legal title as vested in the survivor from the death of the copartner; and therefore restrained the judgment creditor of the deceased partner from taking the goods in execution, by a fieri facias, tested before but not actually issued until after the death of the deceased partner.

Wherever the legal title may be, there is no doubt that for certain purposes, the partnership continues, and that the surviving partner, in virtue of the confidence originally reposed in him by his copartner, retains the right, as the sole acting manager of the joint concern, to collect the monies due and convert the property of the firm into money and pay the debts. (Philips v. Atkinson, 2 Bro. Ch. 272. 3 Kent's Com. 57.) And the representatives of the deceased partner cannot take the closing up of the affairs out of the hands of the survivor, if he is perfectly responsible and proceeds with fairness and due diligence in the discharge of that duty. In the present case, however, it cannot be material to enquire whether the legal interest in the property in possession was in the surviving partner solely, or in him and the personal representative of the decedent jointly as tenants in common; as one of the defendants who has answered, sustains the character of personal representative of the decedent as well as that of assignee of the survivor. And as this transaction took place before the adoption of the revised statutes, when the personal representative had a right to retain for his own debts or for those which were due to him jointly with others, and when he had the legal right to prefer one creditor of the same class over another, the rights of the preferred creditors under the assignment are the same as if the personal representative of the decedent had joined in an assignment to trustees, giving them the same preferences; the personal representative having acted with the other assignees in the execution of the trust, and thereby sanctioned the assignment made by the surviving co-partner. I am inclined to think that the principles adopted by the revised statutes in prohibiting preferences from being given in the distribution of the estate of a deceased person among his creditors, and depriving insolvent debtors of the benefit of the insolvent laws where they give such preferences after they have become insolvent, might to be applied to the case of a surviving partner who is insolvent, and who should attempt, even with the consent of the representative of the decedent, to make a general assignment of the property of the partnership for the benefit of favorite creditors, to the exclusion of others whose claims upon the the property are equally meritorious. It is not necessary, however, to determine that question here, as this case must be decided according to the legal principles which prevailed when this assignment was made, and when the administrator of S. M. Smith assented that such preferences should be given.

There is no admission of fraud in the answer of the defendants, or of facts from which fraud can be legally inferred, if the assignment is not of itself evidence of fraud. The .inducements held out to the surviving partner to persuade him to make the assignment, are those usually employed by creditors who wish to obtain a preference in payment out of the property of an insolvent debtor. In all such cases it is urged upon the debtor as a duty to give the desired preference ; when in nine cases out of ten it would be his duty, as an honest man, to resist such importunities, and to place all his creditors upon an equality. But until the legislature interferes to prevent these general assignments and preferences and to compel insolvent debtors to render equal justice to all their creditors, no court is authorized to say that arguments of this description, although in themselves unsound, if merely used to induce the debtor to do what he has the legal right to do, can render his act fraudulent and void as against other creditors.

The complainants’ bill is not properly framed for an account and distribution among all the creditors under the assignment, as it is filed in behalf of the judgment creditors only, with a view to set aside the assignment as fraudulent and void, and to have the proceeds of the assigned property applied to the payment of the judgment creditors. The bill was therefore properly dismissed. (Cunningham v. Freeborn, 11 Wend. Rep. 240.) And the decree of the vice chancellor must be affirmed, with costs.


author: The Chancellor

text:
    Hart and others vs. Crane and another.
    "Where an assignment is made by an insolvent debtor, of his property, for the benefit of his creditors, the assignee is bound to sell the property either at public or private sale without delay, and to pay over the proceeds to the creditors; and he cannot delay the creditors until the property can be sold at its highest retail prices, without being guilty of a breach of his trust.
    An assignment which directed the assignee to delay the sale of the property for the purpose of obtaining higher prices, unless with the consent of the creditors, would be fraudulent.
    This was an application to appoint a receiver of property assigned by one of the defendants, who was insolvent, to the other defendant, in trust for the payment of the debts of the assignor. It appeared that the assignee of the property, a small store of goods in the city of New-York, instead of selling off the property at once for the payment of the debts, had carried on the store for the purpose of retailing out the goods in the usual mode in which retail merchants conduct their business.
    September 5.

      W. Silliman, for the complainants.

      W. W. Frothingham, for the defendants.
   The Chancellor

decided, that upon an assignment of property of this description, it was the duty of the assignee to proceed and sell the property either at public or private sale without delay, and to pay over the proceeds thereof to the creditors, for whose benefit such assignment was made ; that the assignor could not legally delay his creditors in the collection of their debts until his property could be sold at its highest retail prices, and thereby secure to himself the benefit of such increased value in the discharge of his debts; that the creditors were entitled to have the property of the debtor sold at the best price it would bring at public or private sale immediately after the assignment; that it would be a fraud upon them if, by the terms of the assignment, the assignee was directed to delay the sale for the purpose of obtaining higher prices for the property, unless by the consent of the creditors; that if the assignment contained no such direction, it was a breach of trust on the part of the assignee to delay the sale of the property for the purpose of retailing it out for higher prices, without the directions of those who were entitled to have it converted into money without any unnecessary delay; and that the proper course for an assignee in such a case, if he could not sell the property for its fair cash value at private sale immediately, was to sell it at auction, giving to the creditors reasonable notice of such sale, so that they might attend and see that it was not sold below its cash value, unless all the creditors interested in the assigment wished to have the sale of the property delayed for the purpose of obtaining greater prices therefor.

A receiver was therefore appointed, with directions to him to sell the assigned property, and to bring the proceeds into court, for the benefit of the complainants and the other creditors interested under the assignment.


text:
    Whittimore vs. Whittimore and others.
    The court has no jurisdiction or power to authorize the taxation of extra counsel fees in partition suits beyond the amount allowed in the fee bill. And in drawing up the decree, no direction should be inserted therein for the allowance of such extra fees; as the taxing officer cannot legally allow them on taxation.
    This was a suit for the partition of lands. And upon the making of the decree therein,
    September 5.

      J. Rhoades, for the complainant,
    stated that there had been extra trouble in conducting the suit for which the ordinary taxable fees to counsel would be an inadequate compensation; and that he was therefore instructed to ask for a provision to be inserted in the decree allowing reasonable counsel fees, in addition to the taxable costs in the suit.
   The Chancellor

refused to allow a provision for such compensation to be inserted in the decree; saying, that the court had no jurisdiction or power to authorize the taxation in such a case of any greater amount for counsel fees than the allowance fixed by the legislature in the fee bill, and that the taxing officer could not legally be directed to allow any greater amount on taxation.


text:
    Hamilton vs. Morris and others.
    In reporting upon the title, and the rights and interests of the several parties in the premises, in a partition suit, the master should require the complainant to produce abstracts of his title, as a tenant in common in the premises, and to trace it back to the common source of title of the several tenants in common; and the master in his report should, as far as is practicable, give an abstract of the conveyances of the several undivided shares or interests of the parties in the premises from the time the several shares were united in one common source.
    This was a partition suit, in which the bill had been taken as confessed against the unknown owners of certain undivided shares of the premises. And the master, to whom it had been referred to report upon the title, reported merely as to the interest of the complainant in the premises, without specifying the interests of the other parties in the < premises as between themselves, or showing who was the original owner, or the common source of title, of the several shares or interests in the premises now held in common.
    September 6.

      G. W. Kirtland, for the complainant.
   The Chancellor

said, that the report as to the title was imperfect, and that it must be referred back to the master to correct his report; that the master, upon a reference as to the title in a partition suit, should require the complainant to produce the abstracts and trace back his title as a tenant in common in the premises to the common source of title of the several tenants in common thferein; and that the master in his report should, as far as was practicable, give an abstract of the conveyances of each and all of the undivided shares or interests of the several parties ,in the premises, from the time when all those shares were united in one individual, or a common source of title.

The master subsequently reported that the interest of the complainant was derived from a purchaser at a sale for the non-payment of taxes assessed upon the undivided share of an unknown owner of the premises; and that upon enquiry, he had been unable to ascertain who was the original owner of that undivided share of the premises, a part of which had been so purchased for taxes, or from whom he or the other tenants in common originally derived their title, or who were now the owners of the 'residue of the premises, except of the part so sold for taxes. The Chancellor, under the circumstances of the case, thereupon decided that such amended report was sufficient to authorize a depree for partition.


text:
    Farley vs. Farley and another.
    The party who makes an application to the court and enters the interlocutory order founded thereon, is not entitled to notice of the entering such order, from the adverse party, to limit his right of appealing therefrom; but if he wishes to appeal from the decision or any part of it, he must bring his appeal within fifteen days after the order is settled and delivered-by him to the register or clerk to be entered.
    October 17.
    This was an application by the defendants to dismiss an appeal from an interlocutory order of a vice chancellor; on the ground that the appeal was not entered within the fifteen days allowed by law for appealing. The order appealed from was founded upon an application of the complainant’s solicitor to suppress certain depositions taken on the part of the defendants, under a commission executed in New-Jersey, or for such other order as to the court should seem proper. Upon the hearing of the motion, the court refused to suppress the depositions. But the vice chancellor allowed the complainant to cross-examine the witnesses whose depositions he sought to suppress, at his own expense, and to examine other witnesses in the cause if he thought proper; and for this purpose the time for closing the proofs was extended for a sufficient length of time to enable him to do so. The order was thereupon drawn up and settled by the vice chancellor, in the presence of the complainant’s solicitor, on the 27th of June, and read over to him and to the counsel for the defendants. And the clerk not being present, the order was delivered by the vice chancellor to the complainants’ solicitor, to be taken to the clerk’s office to be entered, who took it there to be entered accordingly, either the same day or the next morning. On the 17th of July the complainant filed with the clerk a notice of appeal, from so much of the order as denied the application to suppress the depositions and from so much as subjected him to the expense of cross-examining the witnesses; but no notice of such appeal was served on the defendants’ solicitor until the 20th of the same month.

      A. Gibbs, for the appellant.

      B. Johnson, for the respondents.
   The Chancellor.

This case comes clearly within the principle laid down in the case of The North American Coal Co. v. Dyett. (4 Paige’s Rep. 275,) that it is not necessary to give a formal notice of the entry of an order to the solicitor who has himself drawn up and entered such order, for the purpose of limiting the time for appealing therefrom. The object of the statute was to require some authentic evidence of the party’s actual knowledge that an order had been entered affecting his interest, to limit his right of appeal from such order. And therefore, if the order is entered by the adverse party, or by the court, without his agency, a written notice that such an order has been entered, or the service of a copy of the order, is necessary to limit the time for appealing from an interlocutory order. But when the solicitor of the appellaant has himself entered the order, he has the best possible written evidence not only of the contents of the order, but that it has been entered and that if he wishes to exercise the right of appeal, he must do it within the -fifteen days allowed by law for that purpose. It would indeed be ridiculous, in such a case, to require the adversé party to give him notice that he had himself entered such an order. Here the order was made upon the application of the complainant’s solicitor, and was settled by the court in his presence and then delivered to him to be entered. In the entering of the order he did not act as the agent of the court, as it was his business and not that of the vice chancellor to see that the order was enter,ed in the clerk’s office. It was strictly his order, and when he delivered it to the clerk, after it had been formally settled by the court, it must be considered as entered from that time ; and he might immediately have asked for a certified copy thereof, although it probably was not copied into the books of the office till a long time afterwards. (4 Paige’s Rep. 141.) The time allowed by law for appealing in this case had expired several days before there was any attempt to enter the appeal in the clerk’s office, and some further time had elapsed before a notice of the appeal was served upon the defendants’ solicitor; all of which should have been done within fifteen days after the complainant’s solicitor entered the order complained of.

The appeal must therefore be dismissed, with the costs of this application.


text:
    Putnam vs. Ritchie and others.
    The solicitor, upon the taxation of his costs as against the adverse party, can only charge for one abbreviation of the pleadings for the use of counsel, although different counsel are employed in different stages of the suit.
    One fair copy of each pleading drawn by the solicitor, to be retained by him for the purpose of reference during the progress of the suit, is" taxable against the adverse party, if actually made.
    Upon the service of an injunction, it is a proper precaution to obtain and preserve the authentic evidence of such service; an affidavit of serving the injunction is therefore taxable, if actually made. But affidavits of the service of papers upon the solicitor of the adverse party, where evidence of the service is not usually required and will not probably be wanted in the subsequent proceedings in the cause, are not taxable unless such affidavits actually become necessary in the progress of the suit.
    A fee for the attendance of the solicitor upon the argument of the cause is only allowed for his attendance when the cause is actually heard; but not for an attendance prepared for a hearing merely.
    This was an application for the retaxation of costs. The complainant’s solicitor had charged, and the taxing officer had allowed, for abbreviating the pleadings for counsel on a motion to dissolve the injunction, and also for an abbreviation for counsel upon the hearing of the cause; the counsel who argued the cause on the motion not being the same who argued the cause upon the hearing. The taxing officer had also allowed for full copies of the pleadings for the use of counsel at the hearings, and thirty dollars to the solicitor for attending the court six terms when the cause was not heard. He had also allowed for the affidavits of the service of the injunction, and of notice of the examination of witnesses, <fcc.; which affidavits were actually made, but nothing occurred in the progress of the cause to render the use of such affidavits necessary.
    October 17.

      W. L. F. Warren, for the complainant.

      Judiah Ellsworth, for the defendants.
   The Chancellor.

The allowance for full copies of the pleadings for the use of counsel upon the hearing was in direct conflict with the decision in the case of DeCaters v. LaFarge, (2 Paige's Rep. 411;) which decision must have escaped the recollection of the taxing officer, or this item would have been disallowed by him. Only one abbreviation of the pleadings for the use of counsel was taxable as against the adverse party, although different counsel were employed in different stages of the suit. The fee bill and the practice of the court allows the solicitor to charge for one abbreviation of each pleading in the cause, for the use of counsel, if such abbreviation is actually made. And he may also charge for one fair copy of all pleadings drawn by him, if actually made, to retain. These, with the copies of the pleadings served upon him by the adverse party, are all that are usually wanted for himself or the counsel associated with him, in the subsequent proceedings in the cause before the same tribunal, and are all that are taxable against the adverse party. After such abbreviations or copies have been used by counsel on one proceeding in the suit, they should be returned to the solicitor, to be used by other counsel if necessary in the further progress of the cause. It will undoubtedly sometimes happen that the copies, or abbreviations, handed to counsel, will be lost or mislaid by the counsel instead of being returned to the solicitor. But as that is the misfortune of the client and not the fault of the adverse party; and the expense of making new abbreviations or new copies is not properly taxable against the latter, although it may form a proper subject of compensation to the solicitor upon the taxation of costs as between him and his own client.

The taxing officer was right in allowing to the complainant’s solicitor for the affidavits of the service of the injunction, as it was, under the circumstances disclosed, a proper precaution to have the evidence of the service preserved, although it was not necessary afterwards to use these affidavits. But affidavits of the service of papers upon the solicitor of the adverse party, where evidence of the service is not usually required and will not probably be wanted in the subsequent proceedings in the cause, should not be allowed on taxation unless it docs in fact become necessary to use such affidavits. Here the evidence of the service of a notice of the examination of witnesses, and of the service of a list of the witnesses intended to be examined, was not necessary to enable the complainant’s solicitor to take any other step in the cause. And .if the adverse party wished to set aside the examination of the witnesses as irregular, on the ground that notice of their examination had not been given, it would be necessary for him to swear that notice of their examination had not been served. The charges for the three last affidavits in this case, which the complainant’s solicitor had no right to presume would be wanted in the further progress of the cause, and which were not in fact used, should have been disallowed on taxation.

In the case of Rogers v. Rogers, (2 Paige's Rep. 468,) this court decided that a fee for the attendance of counsel to argue a cause, when it was not reached on the calendar, was not taxable under the fee bill of counsellors in this court; and that there was a marked difference between the language of that fee bill and of the fee bill of counsellors in the supreme court, which could not have “been the result of accident. The same difference exists between the language of the sixth item of solicitors’ fees in this court and the analogous provision in the fee bill of attornies in the supreme court. The language of the fee bill in the one case is, “ actually attending the court of chancery upon the argument of the cause, five dollars.” In the other case it is, “ arguing a demurrer, &c. or attending prepared for such argument,” &c. And the remarks of Chancellor Kent, upon this item of solicitors’ fees, which was for the first time introduced by him into the fee bill prepared under the directions of the legislature, clearly show that the allowance was intended to be restricted to the actual hearing of the cause, and was not to apply to an attendance prepared for a hearing merely. (See Blake's Prac. 1st ed. App. 118.)

The charges for abbreviations of the pleadings for the use of counsel on the motion to dissolve the injunction; for the copies of the pleadings for the counsel on the hearing; for tiie three affidavits of services of notices of examining witnesses and of the service of the list of witnesses; and for the six attendances of the solicitor before the cause was actually heard, amounting, in all, to $62,31, must be disallowed, and must be refunded by the complainant’s solicitor.


text:
    In the matter of Van Horne, an infant.
    An infant is allowed one year after he arrives of age, to investigate the accounts of his guardian and to surcharge or falsify the same if they are found to be wrong. The guardian therefore is not entitled to an absolute discharge, or to an order to deliver up his bond to be cancelled, before the expiration of the year, although he has settled with his ward after he" be. came of full age.
    October 19.
    Upon an application to discharge the guardian and to have his bond delivered up and cancelled, his ward having arrived of age and settled with the guardian,
   The Chancellor

said it was not the practice of the court to discharge the guardian absolutely, and to order his bond to be given up, immediately upon the infant’s arriving of age, although he had settled with the guardian. That the ward notwithstanding such settlement was entitled to a reasonable time after he became of age to investigate the accounts of the guardián, and to surcharge and falsify the same if upon such investigation he found any thing wrong. That by the practice of the court of chancery he wás usually allowed one year for that purpose, after he became of age, before the guardian’s bond would be cancelled, and the guardian absolutely discharged from his trust. That where the application to the court was made after the expiration of the year, the bond would be delivered up and cancelled immediately, upon the production of the receipt or discharge of the ward, duly proved or acknowledged. But if the application was made within the year, the order would only direct the guardian to be discharged, and that the bond be delivered up and cancelled at the expiration of the year; unless the ipfant before that time obtained an order to the contrary, or filed with the officer with whom the bond was deposited a caveat, or notice not to deliver up or cancel the bond without the further order of the court.

Order accordingly.


text:
    Chipman vs. Sabbaton and others.
    Under the usual order to appoint a receiver, upon a creditor’s bill, the defendant, although he denies on oath that he has any property, is bound to execute to the receiver a formal assignment of all his property, equitable interests, and choses in action, as directed by the order; to enable the receiver to test the validity of any assignment or other disposition which the defendant may have previously made of his property or effects.
    This was an appeal from a decision of a vice chancellor, refusing to grant an attachment against the defendants in a creditor’s bill. The defendants, upon their examination before the master, upon the usual order of reference to appoint a receiver, and that the defendants assign, transfer, and deliver over to the receiver on oath, under the direction of the master, all their property, equitable interests, choses in action and effects, stated that they had no property, &c. and they therefore refused to execute a formal assignment to the receiver, as they were required to do by the order.
    December 30.
    J. Rhoades, for the complainant.

      J. L. Wendell, for the defendants.
   The Chancellor

decided, that under the order for the appointment of a receiver in such a case, the defendants were bound to execute to the receiver a formal assignment of all their property, equitable interests, &c. as directed by the order, to enable such receiver to test the validity of any assignment or other disposition they might have previously made of their property, and to bring a suit in his own name in cases in which he was legally authorized to sue in that manner, either at law or in equity. But if the defendants swore that they had no property or choses in action, &c. in their possession or under their power or control, the execution of the formal assignment was all that could be required of them, unless it appeared by other testimony that they had sworn falsely as to such property and effects.


text:
    Foster & Tyler vs. Foster and others.
    Where a sufficient excuse is shown for not filing the appeal bond and procuring the transcript of the proceedings before the surrogate within the time prescribed by the rule for that purpose, an application to dismiss the appeal will be denied, upon payment of the costs which had accrued upon the application at the time the respondent’s solicitor had notice of such excuse.
    Upon an appeal to the chancellor from a decision of the circuit judge, the appeal bond must be in the form prescribed by the revised statutes, relative to a similar appeal from the decision of the surrogate, as amended by the act of 1830.
    It is not necessary that an appeal bond should be conformable in all respects to the form prescribed by the statute. But it will be enough if the bond is sufficient in substance ; so as to secure to the party for whose benefit it is given all his rights.
    Where the condition of the appeal bond was to pay all costs which should be taxed against the appellants in the event of their failure on the appeal, instead of being to pay such costs in the event of their failing to obtain a reversal of the decision appealed from; Held, that the bond was good in substance and need not be amended.
    An affidavit, upon which an application is founded to dismiss an appeal from a surrogate’s decision for the neglect of the appellant to file his petition of appeal, may be entitled as in the proceedings before the surrogate;- but after the petition of appeal has been regularly filed, showing who are the parties to the appeal, affidavits and other papers in the appeal cause should be entitled in the names of the appellants against the respondents in the appeal.
    An application to the surrogate to prove a will of personal estate may be made either by the executor or by any other person interested in the estate under the will. And where the executor institutes the proceedings in his own name, any other person who is interested in proving the will may intervene and make himself a party to the proceedings, if he thinks proper to do so.
    It seems that a person interested in proving- the will may make himself a - party to an appeal from the decision of the surrogate, although ho was not a party to the proceedings in the court below.
    But a party in interest who claims to come in as an intervener, either in the court below or in the appellate court, must apply by petition to be made a party to the proceedings, before he can be permitted ta take a part therein.
    Where the wife, as the next of Idn, appeals to the circuit judge from the decision of a surrogate admitting the will to probate, which decision is affirmed, the husband cannot appeal from the order of affirmance, in his own name, without joining his wife in the appeal.
    January 22.
    This was an application to dismiss the appeal of T. D. Foster and T. Dixon from a decision of a circuit judge, affirming the sentence¡.or decree of the surrogate of Cayuga county by which the will of E. Wheedon had been established and admitted to probate upon the application of one of the executors. The grounds of this motion were that no petition of appeal had been filed, or transcript returned, within the time allowed by the rules of this court for that purpose. It also appeared by the affidavits in support of the motion, that the condition of the bond filed with the surrogate on this appeal was not made to conform to the provisions of the act of April, 1830,.amending the former provisions of the revised statutes on that subject. From the surrogate’s return, which was produced in opposition to the application, it appeared that neither of these appellants were the next of kin of the testator, or otherwise interested in his estate, except in the right of their wives who were not made parties to the appeal; and that the original appeal to the circuit judge was by “ the next of kin of the testator,” without any other names or descriptions, and was signed by N. Beardsley, as attorney for such next of kin. The notice of the application in the present case was to dismiss the appeal with costs, not only as to the executors but also as to three of the legatees named in the will; but it appeared by the affidavits in opposition, that none but (the next of kin and the executors were parties to the proceedings before the surrogate, ■ together with the husbands of such of the testator’s daughters as were femes covert.

      S. M. Woodruff, for the applicants.

      I. Williams, for the appellants.
   The Chancellor.

The affidavit of . the appellant’s counsel shows a sufficient excuse for not having filed the petition of appeal, and procured the transcript, within the time allowed by the will; and as he has now filed both the petition of appeal and the transcript, the motion would be denied, if that were the only question in the case, upon the payment of the costs which had accrued to the executors at the time Mr. Porter’s affidavit was shown to ther solicitor.

The appeal bond is not in the form required by the existing statute. By a mere inadvertence the original provision of the revised statutes prescribed a form for an appeal bond which was o.n!y applicable to the case of an appeal by •a party resisting the probate of the will, but did not cover the case of an appeal from a sentence or decree against the validity of the will. (2 R. S. 66, § 56.) And as the bond, upon an appeal to this court from the decision of the circuit judge, was required to be in the same penalty and with the same condition as prescribed bylaw upon the appeal from the surrogate to him, the same defect would have existed in the appeal bond here where the circuit judge decided against the validity of the will. (2 R. S. 609, § 101.) The act to amend certain provisions of the revised statutes and in addition thereto, (Laws of 1830, p. 388, § 15,) having amended the section prescribing the form of the bond to be given upon an appeal to the circuit judge, so as to cover the case of an appeal by either party, the bond upon the appeal to this court must now be made to conform to this amendment of the revised'statutes. A defect in the appeal bond, however, may be amended; and in this case it would be a matter of course to allow the appellants to amend their bond, if necessary; as it is very evident that the mistake in the condition of the bond was the error of the surrogate who approved the same. No amendment of this bond is requisite, however, as the condition thereof is sufficiently broad to make the sureties liable for any costs to which the respondents may be entitled on this appeal. It is not necessary that an appeal bond should conform in all respects to the form prescribed by statute. It is enough if it is sufficient in substance, so as to protect and secure to thó party for whose benefit it is given all his rights. (2 R. S. 556, § 33.) It is only where it is so defective that it may not fully secure to him all his rights that an actual amendment of the bond is necessary. (4 Paige’s Rep. 292.) Here the condition of the bond is to pay all costs which shall be taxed against the appellants in the event of their failure on the appeal; instead of being to pay such costs in the event of their failure to obtain a reversal of the decision appealed from. And it., is very evident that the appellants must fail on their appeal, within the express terms, as well as within the intent and meaning of their bond, if they do not obtain a reversal of the decree appealed from.

The objection to the entitling of the defendant’s affidavits is not well taken. The notice of the appeal which is filed in the office of the surrogate, being general in its terms, it cannot be ascertained with any degree of certainty who the appellants intend to make parties to the same, until they have filed their petition of appeal here. Previous to that time, the affidavits.and other papers may be entitled in the same manner as in the proceedings before the surrogate ; but - after this court has become fully possessed of the case by the filing of a petition of appeal, showing who are the respondents as well as who are appellants, the papers as "between such parties, must be entitled accordingly. (Gardner v. Gardner, 5 Paige, 170.) The affidavits on the part of the appellants which have been made since the filing of their petition of appeal, are therefore properly entitled in the appeal cause. And the order to be made on this application must be entitled in the same manner as the last mentioned affidavits.

Upon examining the surrogate’s return I cannot perceive that the legatees who were not of the next of kin to the testator, were before the court as parties to the proceedings before the surrogate ; and they have not taken the proper steps to make themselves parties to this appeal. The application for probate of a will of personal estate may be made either by an executor or by any other person interested in the estate under the will. And where the executor institutes proceedings in his own name only, any other person who has an interest in establishing the will, and who would be precluded if the decision was against its validity, has an unquestionable right to intervene, and thus make himself a party to the proceeding, if he is unwilling to trust the protection of his rights to the party by whom snch proceedings were instituted. (Law's Pr. Eccl. Courts, 70, tit. 29. Cockburn, ch. 6, § 12. Conset, pt. 6, ch. 1, § 1, art. 18, p. 274.) And they probably have the same right to come in as interveners to protect their rights on appeal. But in either case they must come in by a petition, in the proper form, and make themselves' parties to the proceedings, before they can be permitted to take any part therein. The application on the part of the legatees to dismiss this appeal is therefore irregular and unauthorized. It is good, however, as to the executors who were parties to the proceedings before the surrogate and the circuit judge.

There is a fatal objection to the appellants’ right of appeal in this case, which appears upon the papers on ■ the part of the respondents when taken in connection with the transcript of the proceedings as returned by the surrogate. And as this must necessarily defeat them ultimately, unless it can be remedied by an amendment of the appeal itself as well as the appeal bond, it appears to be useless to excuse their default in neglecting to file their petition of appeal and to procure the transcript in due time. The appeal in this case is by the husbands of two of the daughters of the testator, in their own names only as appellants, and not by them and their wives in the right of the latter. Whether the husband of an heir at law or distributee can in any case appeal in his own name, and without joining his wife in such appeal, is a question not necessary to be considered here. It is very clear that he cannot appeal from a decision of the circuit judge, in his own right, upon an affirmance of the sentence or decree of the surrogate, where the appeal from the latter to the circuit judge was only in the right of the wife as one of the next of kin of the testator. Here the appeal to the circuit judge, as appears by the notice of such appeal filed with the surrogate and returned with the transcript, was by the next of kin only_ And if the husbands are to be considered as parties to that appeal, they were only such parties in right of their wives as two of the next of kin of the testator. Their wives therefore should have been joined with them as appellants in this court, in order to represent the same interest here. If the appeal to the circuit judge had been in the proper form, by naming the parties who appealed instead of describing them as the next of kin merely, by which the infant was improperly made a party to the appeal, by her attorney instead of her guardian, this difficulty would probably not have occurred.

I have not examined the question whether the present appeal could be amended, by making the wives the appellants with their husbands, after the time limited by law for appealing had expired. I have, however, looked into the merits of the case so far as to satisfy me that the decisions of the surrogate and of the circuit judge were probably right; so that if the appeal is amendable, it would be a useless expense to the parties to make an application to the court for that purpose. It appears from the evidence that the making of this will was probably the deliberate act of a stubborn headstrong old man, rather than the coerced act of a termagant wife. And the fact that he could not persuade one of his sons-in-law' to turn anti-mason, together with the interference of the friends of his children in his domestic concerns, probably had more effect in inducing him to disinherit those who were the natural objects of his bounty, than any real fear of the broom-stick; with the application of which it appears his wife sometimes threatened him.

The motion of the executors to dismiss the appeal must therefore be granted. But as the notice of this motion was irregular as to some of the applicants, it must be without costs to either party.


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    Kerr vs. Davis and M’Clure.
    The court of chancery will stay the proceedings in a suit, until the costs of a former suit by the complainant in that court for the same matter have been paid. But the proceedings in a suit in chancery will not be stayed, in an ordinary case, although the costs of a former suit for the same matter brought by the complainant in a court of law have not been paid.
    Where the complainant who is insolvent has brought a suit at law and failed therein, if he afterwards brings a suit against the defendant in this court for the mere purpose of harrassing him, the court will not permit him to proceed therein until he has paid the costs of the former suit, or has given security to the defendant for the costs which may be awarded to him in the suit in chancery.

      January 22.
    This was an application to stay the proceedings on the part of the complainant, until the costs of a former suit brought by him for the same matter, in the supreme court, should be paid. The petition, on the part of the defendant Davis, alleged that this bill was filed for the same matters which were in issue in the supreme court; that an execution for the costs of that suit had been issued, but the same could not be collected by reason of the plaintiff’s insolvency ; and that this suit was instituted without any expectation of success by the complainant, for the sole purpose of vexing and harrassing the defendant, and to put him to costs; the complainant relying upon his own insolvency to exempt himself from the payment of such costs.

      E. D. Smith, for the defendant Davis.

      E. Sandford, for the complainant.
   The Chancellor.

Where the complainant has commenced a former suit in this court for the same cause and has failed, his proceedings in the second suit will be stayed until the costs of the first are paid. (Spires v. Sewell, 5 Sim. Rep. 193.) The existence of such a principle in this state is recognized in the provision of the revised statutes, which exempts paupers from the operation of the rule. (2 R. S. 445, § 4.) In that case the legislature has made provision for the protection of the defendant against suits merely vexatious, by requiring the pauper to show to the court in the first place, that he has a meritorious cause of action or suit. The principle of staying the proceedings in a suit until the costs of a former suit for the same matter are paid, has never been extended so far, however, as to stay proceedings where the first suit was in a court of law and the last is in a court of equity. (Demarest v. Wynkoop, 2 John. Ch. Rep. 461. Stebbins v. Grant, 19 John. Rep. 196.) The present case, therefore, does not come within the operation of the principle, as the first suit by this complainant was in a court of -law.

There is another ground, however, on which this court is authorized to interfere in this case for the protection of the petitioner. No court should allow its process or proceedings to be perverted for the purposes of injustice and oppression. Here it is sworn by the petitioner, and not attempted to be denied by the complainant, that this second suit is brought in bad faith, without any reasonable hope or expectation of success, and for the sole purpose of vexing, harrassing and annoying the petitioner; the complainant by reason of his insolvency, being exempt from the usual penalty in such cases, the payment of the costs of the defence. As this allegation of the petitioner must be taken as true upon the papers before me on this application, I think it my duty to interfere, so far at least as to stay this vexatious and unjustifiable proceeding until the costs of the suit in the supreme court are paid. An order must therefore be entered staying all proceedings on the part of the complainant, as against Davis the petitioner, until the complainant shall have paid the costs in the suit at law, and $12 as a gross sum for the costs of this application ; or until he shall have filed with the register a bond in the penalty of $250, with two sufficient sureties to be approved of by a master, conditioned to pay the petitioner such costs as may be awarded to the latter in this suit. And the petitioner is to have forty days after payment of such costs, or notice of the filing of such bond, to put in his answer to the complainant's bill. If such costs are not paid, or security filed and notice thereof given, within sixty days after service of a copy of the order on the complainant Or his solicitor, the bill as to the defendant Davis, is to be dismissed with costs.


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    Austin and others vs. Figueira & Spinola.
    Where to an execution, in the fonn prescribed by the statute, on a judgment against two as joint debtors but only one of whom was served with process to appear and answer in the suit, the sheriff returned in the usual form that the defendants had no goods or chattels, lands or tenements, without in terms negativing the fact that either of the defendants had any separate property; Held, that the return was sufficient to authorize the plaintiffs in the judgment to file a creditor’s hill, and to obtain the appointment of a receiver of the joint property of the defendants in the execution and of the separate property of the defendant who was served with process in the original suit.
    The complainant in a creditor’s bill may apply for the appointment of a receiver, after the service of the subpoena and before the time limited by the rules of the court for the defendant’s appearance has expked; but in that case, notice of the application must be served upon the defendant. ,
    After the bill has been taken as confessed against the defendant for vgant 'of appearance, an application for the appointment of a receiver, or for an injunction or a ne exeat against the defendant, may be made ex parte and without any notice thereof to him.
    Where separate judgments have been recovered against the drawer and endorser, of a note, and executions against the property have been returned unsatisfied as to each defendant, it seems that one creditor’s bill may be filed thereon against the defendants in both of the judgments, provided the endorser has property or effects to the amount of $100 and more.
    A creditor who has recovered separate judgments against the drawer and endorser of a note, is not bound to file his bill against them jointly in the court of chancery after the return of the executions unsatisfied as to both. But if he unnecessarily files his bill against the endorser separately, where he knows or has good reasons for believing that the maker of the note, who is the real debtor, has ample mean of paying the note, and whose property might be reached by a joint bill against both, it seems he will not be allowed his costs of the.separate bill against the endorser.
    January 22.
    This was an appeal by the defendants from an order of the vice chancellor of the first circuit, appointing a receiver of the joint property of the defendants and of the separate property of Spinoia, who alone was served with process in the suit at law. The execution was in the usual form, directing the amount of the judgment to be levied of the goods and chattels, lands and tenements of the two defendants ; with the proper endorsements thereon, according to the directions of the statute. And the sheriff’s return was, in the words of the execution, that the said Fortunatas Ftgueira and John L. Spinola, had no goods or chattels, lands or tenements, without in terms negátiving the fact that either of them had any separate property. Upon serving the subpoena and injunction upon the defendants, copies of the bill were also served, with a notice of an application for the appointment of a receiver on the return day of the subpoena. An objection was made before the vice chancellor that the application was premature, as the defendants had ten days after the return day of the subpoena to appear in the cause. The vice chancellor overruled the objection, but gave to the defendants further time to prepare to oppose the application. The defendant Spinola made an affidavit that the sheriff" had not called upon him to satisfy the debt out of his individual property; but did not state therein whether he had or had not any individual property within the county which could have been reached by the execution. It further appeared that the debt for which the judgment was recovered arose on an endorsement of a note, given by P, N. Searle as the drawer thereof for his own proper debt; and that separate judgments had been rendered against Searle the drawer, and the defendants in this suit, as the endorsers of the note, as authorized by the act of May, 1835. But it did not appear from the affidavit whether an execution had been issued and returned upon the judgment against the maker of the note,,so as to have authorized the filing of a bill against him, nor did it appear how much of either judgment was for costs and how much for the debt.

      S. Stevens, for the appellants.

      H. Nicoll, for the respondents.
   The Chancellor.

Neither of the objections to the order of the vice chancellor is well taken. It has been frequently decided by this court that it is the duty of the complainant in a creditor’s bill, where an injunction has been issued, to apply for the appointment of a receiver without any unreasonable delay, so that the property of the defendant may not be lost for want of some one who is authorized to collect the debts and dispose of perishable articles. And it is a-very, common practice to give notice of the application to appoint a receiver at the time of the service of the injunction and subpoena upon the defendant. Although the defendant has a certain number of days after the return day of the subpoena to enter his appearance, before he is liable to be attached or to have the bill taken as confessed against him, there is nothing in the rules or the practice of the court which requires all other proceedings on the part of the- complainant to be stayed in the meantime. The complainants may therefore apply for an injunction or a receiver or for a writ of ne exeat, upon due notice to the defendant, at any time between the time of serving the subpoena and the time limited by the rules of the court for the defendant to appear. After that time, if the defendant has not appeared and the bill has been taken as confessed against him, the application may be made ex parte and without any notice thereof to him.

The legal meaning of the sheriff’s return on the execution in this case is, that neither the defendants jointly nor the defendant Spinola separately have any property of which he could levy the amount of the debt. The return is as broad as the command in the body of the execution, and is only restrained by the limitation of the endorsement on the execution,in conformity with the statute. There can be no doubt that such a return to the execution would have been sufficient if both defendants had been served with process, so as to make the separate property of each as well as'the joint property of both answerable for the satisfaction of the execution. And in that case the sheriff might have been sued for a false return if it could be shown that either had separate property on which he had neglected to levy and satisfy the execution.

If the executions upon both of the judgments had been issued , arid returned unsatisfied, so as to have authorized the commencement of joint proceedings in this court against the drawer as well as the endorsers of the note, I am inclined to think neither could have demurred for multifariousness; as both judgments were for the same debt, although some costs may have been included in each judgment for which the defendants in the other were not liable. But it might be necessary, in such a proceeding against them all jointly, to show that the defendant in the judgment against the endorser had assets to the amount of $100 and- more, to excuse the complainants from paying him costs. I am satisfied, however, that this is a case in which the complainants were not bound to file their bill jointly against the drawer and endorsers of a note, any more than they would have been if the judgments had been recovered in two separate and distinct suits throughout. But if they have unnecessarily proceeded against the endorsers separately in this court, when they knew or had good reason to suppose that the maker had ample property to pay the note, which assets might be reached by a joint bill against both, it may be a good reason for not charging the endorsers with costs. There is no pretence, however, in the defendants’ affidavits, that these complainants are proceeding against the endorsers of the note unreasonably, and with a knowledge that they had a perfect remedy against the property of the drawer. In the case of Van Cleef v. Sickles, (5 Paige’s Rep. 505,) there was a joint judgment, for the costs as well as the debt, against the makers and endorsers of the note.

The order of the vice chancellor must be affirmed, with costs, and the proceedings are to be remitted.


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    Hofmire vs. Hofmire.
    Where a decree for a divorce has been regularly obtained by the wife against her husband, while he was in the state prison upon a conviction for a felony, and there is no doubt as to the fact of his adultery, the court will not open the decree for the mere purpose of enabling the defendant to set up a condonation of the adultery as a defence to the suit.
    It seems that the cohabitation of the wife with her husband after his private confession to her of an act of adultery, but which she has no means of proving so as to justify her in leaving his bed and board, and to protect her friends who might receive and harbor her against his will, is not such a condonation of the offence as will bar her suit for a divorce, upon a subse- • quent discovery of the means of establishing his guilt.
    January 22.
    This was an appeal from a decision of the vice chancellor of the first circuit, refusing to open a decree for a divorce and to permit the defendant to put in an answer setting up a condonation of the adultery charged in the bill, in bar of the suit. In the affidavit of the defendant, on which his application was founded, he admitted that he had on one occasion been guilty of adultery, at á house of ill fame; but he alleged that his wife, after being informed thereof, freely forgave him, and continued to cohabit with him until he was convicted and sent to the state prison, on a charge of felony, shortly after such forgiveness.

      I. W. Bishop, for the appellant.

      C. Edwards, for the repondent.
   The Chancellor.

There ’iras no irregularity in this case which could authorize the appellant to apply to open the proceedings on that account. Although the solicitor who appeared for him in the suit was employed by the mother of the defendant, and without authority from him, it did not in any way prejudice his rights. He employed no solicitor, and the bill would have been taken as confessed against him, for want of an appearance, if Mr. Crafts had not appeared at the request of the mother; in which case no order to answer would have been necessary. The solicitor who had appeared without authority, had therefore a perfect right to waive a mere formal proceeding which such unauthorized appearance only had made necessary. He did not and could not consent to the divorce itself ; which was obtained on the usual order of reference, and upon full proof of the adultery charged. The only question therefore, is whether the defendant ought to have been permitted, as a matter of favor, to come in and set up the alleged condonation, after a regular decree, under the circumstances of this case,

It appears by the defendant’s admission, that he had left the bed of his young and virtuous wife, who by his own showing was devotedly attached to him, to enjoy the embraces of a worthless common prostitute. And from the complainant’s affidavits it is doubtful whether she cohabited with him after she had such a knowledge of his guilt in this respect as to justify her in leaving him and seeking legal redress. His private admission of the fact to her, was not sufficient to authorize her to take any proceedings against him; or even to protect her friends for harboring her against his will, if she had then abandoned his bed and board. I am not therefore prepared to say that this defence would have been available, if it had been set up before he had been guilty of a second offence not merely against the domestic happiness of his wife but also against the general welfare of the community. After he had been guilty of this felony, for which he had been convicted and sent to the state prison, both she and her friends were perfectly right in attempting to dissolve a connexion which could no longer be continued consistently with her happiness; provided such connexion could be dissolved in accordance with the principles of the gospel, and the laws of the state.. The final decree for such a dissolution of the marriage contract, she had regularly obtained at the time this application was made. And under the circumstances of the case, I think the vice chancellor would not have exercised the powers of this court discreetly if he had opened that decree, for the purpose of sending back this much injured woman to the now loathed embraces of an adulterer, and a felon.

The order appealed from must therefore be affirmed with costs.