text:
    *Whitmarsh v. Campbell.
    December 1st.
    Exceptions for scandal or impertinence, under the 53d rule, must point out the exceptionable matter with sufficient certainty to enable the adverse party and the officers of the court to ascertain what particular parts of the pleading or proceeding are to be stricken out if the exceptions are allowed.
    If several parts of the answer, or other proceeding, are deemed impertinent, each part should form the subject of a separate exception.
    The complainant after excepting to the answer in this case, for insufficiency in divers particulars which were specified in the usual manner, and under the rule of May, 1829, (the same as new rule 53,) added the following exception for impertinence: “ The said separate answer of the said defendant is impertinent in setting forth at full length divers letters and other documents, and in stating arguments and recitals instead of facts.” The master decided this exception was well taken, and reported that the exceptionable matter was marked by him in a copy of the answer which had been laid before him, and that he had included the same in brackets. On exceptions to the master’s report,

      J. Hoyt, for the defendants,
    insisted that this exception was not well taken, as it did not specify what particular parts of the answer were impertinent.

      J. Clisbie, for the complainant.
   The Chancellor:—The object of the late rule of this court in relation to exceptions for scandal or impertinence, was to require the party excepting to point out the objectionable passages with such clearness and precision that the adverse party might, from the exceptions, ascertain what was to be stricken out or altered, if the exceptions were submitted to by him or allowed by the master; and that the proper officer of the court might be enabled to comply with the provisions of the 57th rule. If there are several parts of the answer or other proceeding in the cause, which are deemed scandalous or impertinent, each should form the subject of a *separate exception; with such references to the scandalous or impertinent matter, or the pages in which it is contained, as to enable the adverse party and the officers of the court to ascertain precisely what is considered objectionable. The exception in this case is defective in all these particulars, and ought not to have been allowed.


source: Caselaw Access Project

license: Public Domain

text:
    Johnson and others v. Pinney and others.
    December 5th.
    Where a party is in contempt, the court will not grant an application in his favor, which is not a matter of strict right.
    If he applies to the court for a favor, it will only be granted on condition that he purges his contempt, by complying with the former order of the court.
    The order to close the proofs in this cause had been regularlarly entered by the complainant’s solicitor.

      M. T. Reynolds, for the defendant Pinney,
    on an affidavit of merits, stating special circumstances, applied for a commission to take the testimony of a witness whose residence could not be discovered before the proofs were closed.

      J. Rhoades, for the complainants,
    resisted the application on the ground, among others, that the defendant was in contempt for not paying a bill of costs, on a motion previously made by him to dissolve the injunction in this suit.
   The Chancellor :—It is a general rule that a party cannot apply to the court for a favor while he is in contempt. (Vowles v. Young, 9 Ves. 173; Prac. Reg. 138; Green v. Thompson, 1 Sim. & Stu. 121.) And the complainant is not obliged to accept an answer until the party has cleared his contempt for neglecting to appear or answer. If the party does not insist upon his costs, but accepts the answer, and proceeds thereon, he cannot afterwards object that those costs have not been paid. (Anonymous, 15 Ves. 174; Smith v. Blofield, 2 Ves. & B. 100.) In this case the proofs have been regularly closed. The defendant is in contempt for not paying the costs of a former motion which failed. An *attachment was issued for the costs, but they have not been paid. The favor now asked of the court ought not to be granted until the defendant clears himself of his contempt, by the nayment of those costs. I do not intend to be understood as applying this principle to an application which is a matter of strict right; as a motion to set aside proceedings for irregularity; or to dismiss a bill for want of prosecution.

The motion for leave to examine this witness must be granted, without prejudice to the complainant’s right to proceed to a hearing the first opportunity. But the order for leave is only upon payment of the costs of opposing this motion; and the costs necessary to be paid to purge the defendant’s contempt.


text:
    James v. Berry and others.
    December 5th.
    Where notice of the order to produce witnesses has been served upon the agent of the solicitor for the opposite party, each party has double the usual time to produce his witnesses.
    If the adverse pariy wishes to shorten the time, he must obtain an order upon his part and serve notice thereof upon the opposite solicitor, either personally or by leaving the same at his office
    The complainant obtained a rule to produce witnesses in 40 days, and served notice thereof on the agent of the defendants’ solicitor. Previous to the' expiration of the 40 days, the complainant’s solicitor, upon an affidavit stating that he had not been able to examine his witnesses, applied for an extension of the time.
   The Chancellor:—The true construction of the rule of December 1st, 1825, (same as new rule 68,) is, that where notice of the order to produce witnesses has been served upon an agent, each party has double the usual time, before either can enter an order to close the proofs. If the adverse party wishes to shorten the time, he must obtain an order on his part, and serve notice thereof on the opposite solicitor in person, or at Ms office. The complainant in tMs case has therefore sufficient time left to examine Ms witnesses, and no extension thereof is necessary.


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    *Everitt v. Huffman and others.
    December 5th.
    Where only part of the money secured by a mortgage is due, and the bill is taken as confessed, the reference to ascertain whether the premises can be sold in parcels is a common order.
    J. Bloore, for the complainant,
    presented a petition stating that only a portion of the money secured by the mortgage in this cause was due, and that the mortgaged premises were so situated that a part thereof could not be sold without injury to the interest of all concerned.
   The Chancellor decided that under the provisions of the Revised Statutes, (2 R. S. 192, sect. 161, 162, 163,) if the bill is taken as confessed in such a case, or the complainant is otherwise entitled to a reference of course, under the 134th rule, he may have a clause inserted in the common order of reference, of course, directing the master to ascertain and report the situation of the mortgaged premises, and whether the same can be sold in parcels without injury to the interests of the parties.


text:
    Southwick v. Van Bussum and others.
    An order to examine a complainant, as to any payments received by him where the defendant is either absent, concealed or a non-resident, is a common order; but an order for leave to examine a complainant in his own favor can only be obtained upon a special application.

      Dec. 5th.
    J. Rhoades, in behalf of Mr. Adriance, solicitor for the complainant,
    presented an affidavit, from which it appeared that the bill had been regularly taken as confessed by all the defendants, and that one of them was not a resident within this state.
   The Chancellor decided that under the provisions of the R. S., (part 3, ch. 1, tit. 2, art. 4, § 128, being 2 R. S. 187, § 128,) the complainant may have a clause inserted in the *common order of reference, of course, directing the master to examine the complainant as to any payments that may have been made to him, or to any person for his use, on account of the demand mentioned in the bill, and which ought to be credited on such demand. But the Chancellor intimated that on a reference under the section next preceding the one above referred to, (i. e., 2 R. S. 186, 7, § 127,) the complainant could not be examined by the master, except by the order of the court made on a special application.


author: The Chancellor.

text:
    Fitch vs. Smith. Terry vs. The Same.
    1842. Oct. 4.
    The service of the subpoena in the cause subsequent to the filing of the complainant’s bill, or the issuing of the subpoena and a bona fide attempt to serve the same, is the commencement of the suit against the defendant, and not the filing of the bill merely.
    Where a creditor’s bill in one suit was filed two hours before the filing of the bill in another suit, but a subpoena on the last bill was taken out and served before any attempt had been made to serve a subpoena upon the bill first filed, Held, that the suit upon the bill last filed was first commenced, and that the complainant in that suit was entitled to a priority in payment out of the property of the judgment debtor, who was the defendant in both suits.
    This was an appeal by Fitch, the complainant in the first of the above causes, from a decision of the vice chancellor of the eighth circuit. The complainants, respectively, were judgment creditors of the defendant Smith, and filed creditors’ bills against him, to obtain satisfaction of their debts. The solicitors of both complainants resided at Buffalo, and sent their bills by the same mail to Rochester to be filed, and to obtain injunctions thereon—the first bill directed to a deputy in the office of the clerk in chancery, and the last to the clerk himself. The deputy, not noticing that an injunction was required in the case directed to him, filed the bill immediately ; and in the other case the bill was filed two hours afterwards, but not until an injunction had been applied for thereon and granted. The injunction was received by the solicitor for Terry, at Buffalo, on the 6th of December ; and a subpoena was immediately made out, and was served upon the defendant on the same day, together -with the injunction. The solicitor for Fitch received notice of the filing of his bill on the same day. But in consequence of a mistake of the deputy clerk, in overlooking his directions to present the bill to the vice chancellor and obtain an injunction thereon, he had to send again to Rochester to procure the allowance of an injunction before he took out and served his subpoena; and he was not therefore able to serve both the subpoena and injunction until the 15th of December.
    The vice chancellor decided that the complainant, in the suit in which the subpoena was first taken out and served, was entitled to a priority of payment, out of the defendant’s property in the hands of the receiver, although the bill of the complainant in the other suit was first filed in the clerk’s office. And he made an order accordingly ; from which order Fitch appealed.

      E. Fitch Smith, for the appellant.

      C. H. Bramhall, for the respondent.
   The Chancellor.

The complainants in both of these cases sent their bills to the clerk’s office at the same time 5 neither being aware of the fact that the other was about to commence a suit against the same defendant for a similar purpose. But owing to a mistake the deputy clerk who acted as the appellant’s agent, filed the bill immediately, and without applying to the vice chancellor for an injunction thereon ; in consequence of which mistake that bill got on to the files of the court two hours before the respondent’s bill. And if the filing of the bill, before taking out and serving a subpoena or making a bona fide attempt to serve it, was the commencement of a suit in this court, the appellant would have obtained a preference in payment out of thg property of the defendant, in consequence of this'mistake of the deputy clerk. The filing of the bill, however, is not the commencement of the suit; although by statute the bill must now be filed before any process for the appearance of the defendant can be issued. (2 R. S. 179, § 70, 76.) It is true, in common parlance, we use the expression “filing of the bill” to denote the commencement of a suit in chancery ; instead of referring to the issuing and service of the subpoena, or the making of abona fide attempt to serve it, after the bill has been filed, which is the actual commencement of the suit in this court. (Webb v. Pell, 1 Paige’s Rep. 564. 1 Dan. Ch. Prac. 554.)

Here, as I understand the affidavit of the appellant’s solicitor, no subpoena was attempted to be served, or was even issued, until the solicitor received the injunction from Rochester, which was more than a week after the injunction and subpoena in the respondent’s suit had been actually served upon the defendant.

The decision of the vice chancellor is therefore clearly right j and the order appealed from must be affirmed with costs.


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    Bangs & Allcott vs. Strong and others.
    Any valid and binding agreement between the creditor and the principal debtor, or other active interference of the creditor, whereby the surety may be injured, or subjected to increased risk, or be deprived of or delayed in the assertion of his equitable claim to pay the debt and become subrogated to the rights and remedies of the creditor against such principal debtor, if it ismade or done without the assent of such surety, will in equity discharge him from his liability.
    But mere delay, or a promise of delay not founded upon a new consideration, or the taking of a collateral security from the principal debtor without any stipulation to extend the time of payment of the original debt, will not discharge the surety.
    Although the agreement with the principal debtor is executed by only one of two joint creditors, and without the consent of his co-creditor, it will nevertheless operate as a discharge of the surety, if it has the effect to prejudice the right of such surety to substitution, without his assent.
    But where such agreement is obtained from the creditor, by the principal debtor, upon the false representation of the latter that the surety had authorized him to make it, and the surety afterwards refuses to assent to the agreement, the creditor will be at liberty to repudiate it; in which case the surety will not be discharged, unless the creditor proceeds to act under the agreement after notice that it was entered into without the authority of the surety and that such surety had refused to assent to the same.
    1842. October 21.
    The creditor may, without impairing his right against the surety, stipulate with the principal debtor to give him time of payment upon condition that the surety assents to the same; and in such case if the surety refuses to assent to the agreement, such agreement will be inoperative.
    Where an answer which accompanies a plea covers any part of the relief embraced by such plea, it will overrule the plea.
    This was an appeal by Maltby Strong, one of the defendants, from an order of the vice chancellor of the eighth circuit overruling a plea. The complainants were judgment creditors of the defendants J. Strong and M. Strong, and the bill was filed to reach their property after the return of an execution unsatisfied, and to set aside certain conveyances made by them to the other defendants, as fraudulent. ■ The bill, after setting forth the other matters usually alleged in such suits and the fraudulent transfers of property, stated that, as the complainants were informed, the defendants J. Strong and M. Strong pretended that in consequence of an agreement made between Alcott, one of the complainants, professing to act in behalf of himself and Bangs his co-complainant, of the One part, and J. Strong acting for himself and M. Strong of the other part, and dated in August, 1839, the defendant M. Strong was discharged from all obligation by reason of the judgment, the contrary whereof the complainants charged to be the truth. The bill also stated that the agreement, if made, was made with the knowledge, assent, and approbation of M. Strong, or that he was informed of it both before and after the making thereof and made no objection thereto ; or if not, that it was procured by the fraudulent professions and representations of the said J. Strong, and that such agreement had not been performed on the part of the defendants J. and M. Strong.
    The defendant M. Strong, as to all the relief sought by the billas against him, and as to all the discovery except as to his pretence and claim to a discharge under the agreement of August 1839 and the charges in the bill in relation to that agreement, pleaded in bar that the debt for which the judgment set forth in the bill was recovered was one in which he was a mere surety for his co-defendant J. Strong, in a bond to the complainants, to secure such advances as they might make to" the latter. And the plea further stated that on the 12th of August, 1839, an agreement was made between Alcott, one of the complainants, and J. Strong, under their hands and seals, and reciting the recovery of the judgment mentioned in the complainants’ bill and the parties to such judgment, whereby it was agreed between the said J. Strong and Alcott, in lehalf of the respective parties to that judgment, that J. Strong should turn out and cause to be conveyed to Bangs & Alcott, in payment of their judgment, certain specified real estate in Rochester at the appraisal of three citizens of that place, less ten per cent, subject to certain incumbrances on a part of such property to be paid by Bangs & Alcott; which real estate was also subject to incumbrances to the amount of about $2500 not then payable, and which J. Strong agreed to pay when they should become due; and that the judgment should remain and continue in force as a security for the payment of a part of the incumbrances which J. Strong had agreed to pay, and also to secure the balance, if any, that should still remain due on the judgment, and which was to be paid within ten months; and for the non-performance of "which agreement the party failing to perform was to pay the other $1000 as liquidated damages. M. Strong averred in his plea that the agreement was made and executed without his consent, authority, assent, knowledge, or approbation, and that it had been wholly, or in part, performed by J. Strong ; and he also traversed the allegations in the bill that he was informed of the agreement before the making thereof and made no objection thereto, or that the agreement was procured by the fraudulent professions and representations of J. Strong.
    The plea was also supported by an answer, admitting that the defendant M. Strong had given out and pretended that by virtue of the agreement mentioned in the bill he was wholly discharged from all obligation by reason of the complainants’ judgment, and averring and insisting that he was so discharged, but denying the several allegations in the bill traversed by his plea. His answer also stated, that after the making of the agreement he was informed of it by the attorney of Bangs & Alcott, who told him that he was wholly discharged from the judgment and need not give himself any further trouble about it; and that when he was afterwards informed of such agreement by Alcott and requested to sign an instrument ratifying the same, he refused to sign it, and told Alcott that he considered the agreement as a discharge of all his liability on account of the judgment. In addition to this, the answer proceeded to state that subsequent to the agreement of August, 1839, and in part performance of it, J. Strong caused to be conveyed to the complainants a part of the real estate specified therein, and that certain sums of money had been received by the complainants which ought to be applied towards the payment of the judgment mentioned in their bill; setting forth a description of the lands which had been appraised under the agreement, and certain monies or securities for money which had been received to apply on the judgment, as contained in the two subsequent instruments signed by Alcott, modifying the original agreement. But the answer admitted, upon the information and belief of this defendant, that the agreement had not been" fully performed.
    The vice chancellor decided that the agreement set out in the plea did not prevent the complainants from immediately issuing their execution and collecting the whole of their judgment, and that the rights of Maltby Strong as a surety for his co-defendant in the judgment were not altered or affected by the agreement. He therefore overruled the plea, without examining the objections which had been made to the form thereof. And from his order overruling the plea the defendant M. Strong appealed to the chancellor.

      J. W. Gilbert, for M. Strong the appellant.
    The defence is well pleaded. (Stor. Eq. Pl. 511 to 521, 532. Mitford, 240 to 244. Wigram on Dis. 13 Law Lib. 12 to 17, 82, 83. Lube’s Eq. Pl. 182, et seq. 3 Paige, 273.) Maltby Strong is a mere surety for Joseph Strong, and the agreement set up in the plea having been executed without his consent, he is discharged. The complainants, by means of the agreement, disabled themselves from ceding to M. Strong all their remedies against J. Strong; and whether this disability continued for a long or short period, it operated as a complete discharge. (Poth. on Ob. p. 2, c. 6, art. 1, § 6. Code Nap. 2037. King v. Baldwin, 2 Johns. Ch. R. 560. Hayes v. Ward, 4 Id. 130. 3 Wheat. 157, n.) Time was given by the agreement to J. Strong. (Gahn v. Niemcewicz, 11 Wend. 320. Ev. App. to Poth. No. 5. 3 Wash. C. C. R. 75. 8 East, 576.) A new credit was given to J. Strong alone ; and this operated as a novation of the debt. (Skip v. Edwards, 9 Mod. 438. Cremer v. Higginlaw et al. 1 Mason C. C. R. 339. Bell’s Law Dic. tit. Novation.)

      F. M. Haight, for the respondents.
    The agreement set forth in the plea is void for want of mutuality. If the agreement set up in the plea is deemed binding on the complainants and Joseph Strong, it does not affect the rights of Maltby Strong, or discharge him from his liability upon the judgment against him and J. Strong. The plea is defective in not denying the allegation that Maltby Strong was informed of the agreement, before and after the making thereof, and made no objection to the same. The plea is defective in alleging, in' the alternative, that the agreement was wholly or in part performed. And it is no answer to the discovery sought by the bill in relation to the fraud committed by J. and M. Strong in the execution &c. of the assignment by them and their wives to E. Peck. The plea is also overruled by the answer.
   The Chancellor.

The general rules upon which courts of equity proceed in decreeing a surety discharged by a new contract, changing the rights and liabilities of the principal debtor without the consent of the surety, are correctly stated in the opinion of the vice chancellor. The principal question to be considered therefore is whether those rules have been correctly applied by him to the facts of this case.

Any valid and binding agreement between the creditor and the principal debtor, or other active interference of the creditor, whereby the surety may be injured, or subjected to increased risk, or be deprived of or delayed for a time in the assertion of his equitable claim to pay the debt and become subrogated to the rights and remedies of the creditor against such principal debtor, if it is made or done without the assent of such surety, will in equity discharge him from his liability. But mere delay, or a promise of delay not founded upon a new consideration, or the taking of a collateral security from the principal debtor without any stipulation to extend the time of payment of the original debt, will not discharge the surety. (Neimcewicz v. Gahn, 3 Paige’s Rep. 614; 11 Wend. Rep. 312, S. C. Rathbone v. Warren, 10 Johns. Rep. 597. Offut v. Hindsley, 9 Louis. Rep. 12. Sneed’s Ex’r v. White, 3 J. J. Marsh. 525. Clark v. Patton, 4 Idem, 33. Alcock v. Hill, 4 Leigh’s Rep. 622. Steele v. Boyd, 5 Idem, 547.)

In the case under consideration, considering the agreement as having been made between Alcott and J. Strong only, and without any reason on the part of the former to suppose that the latter was authorized to contract for his co-defendant in the judgment as well as himself, this was unquestionably a valid and binding contract by which the rights of the parties to the judgment were materially changed. Although no time was given for the conveyance of the lands, the contract necessarily implied that all proceedings upon the judgment should be stayed for a reasonable time for the appraisal of the property and the execution of the necessary conveyances. And if the complainants, after the making of that agreement, had taken out execution upon their judgment and proceeded to collect the whole amount out of the property of J. Strong, or his surety, it would have been a palpable violation of the spirit and intent of both parties to the contract of August, 1839. Besides; the agreement, in terms, provided for an extension of credit for the balance due on the judgment beyond the appraised value of the lands after deducting the ten per cent from the amount of such appraisal. And there was also a necessary extension of credit on so much of the judgment as was to remain as a security for the payment of incumbrances upon the lands until the monies secured by those incumbrances should become due; as that was the time specified in the agreement when J. Strong was to pay off and discharge the incumbrances. What then would have been the rights of the surety, after that agreement was executed, if he had thought proper to pay the complainants’ debt and to become substituted in their place as to their rights and remedies against the principal debtor 1 Certainly he would have been compelled to wait until the lands could be appraised. And then if J. Strong thought proper to fulfil the agreement on his part, by conveying the real estate at such appraisal less the ten per cent, and subject only to the in-° cumbrances specified in the agreement as payable by the complainants or for which the judgment was to remain as an indemnity, the surety would be compelled to take his pay in the land instead of money ; and subject, for a time at least, to the lien of the incumbrances of which J. Strong had assumed the payment. Nor could he have taken out execution to enforce the payment of the residue of the judgment until the expiration of the ten months mentioned in the agreement.

The fact that the agreement was only executed by one of the complainants, even if it was made without consulting the other, would not prevent its operating as a discharge of the surety, where it had the effect to prejudice his right to substitution, without his assent. (Clark v. Patton, 4 J. J. Marsh. Rep. 33.) Whether the agreement of August 1839, therefore, was valid and binding upon the complainants, so as to discharge the surety who afterwards refused to assent to the same, depends upon the question whether it was entered into by Alcott without his having any good reason to suppose that J. Strong was acting without authority from his co-defendant in the judgment, if he was so in fact, and whether, as alleged in the bill, it was procured by the fraudulent professions and representations of J. Strong, which induced Alcott to believe he had such authority. In the latter case, as the surety refused to assent to the new arrangement, the complainants would be authorized to repudiate the same. And in that case the surety would not be_ discharged unless the complainants had acted under the agreement after they were aware of the fact that it had been entered into without authority, and that the surety refused to assent to the same. For the creditor may always stipulate with the principal debtor to give him time of payment upon condition that the surety assents to the agreement, so that the right of the creditor as against the surety shall not be impaired. And in such case if the surety refuses to assent to the new arrangement, the agreement is void. (Claggett v. Salmon, 5 Gill & John. Rep. 314.) This plea, however, traverses all the allegations in the bill as to the assent of the surety to the agreement, and as to the fraudulent professions and representations on the part of the principal debtor that he was authorized to act for him. In the present stage of the suit, therefore, I must presume the plea is true and that the surety is discharged.

But the objection is well taken that the answer covers some parts of the relief and discovery embraced by the plea and therefore overrules the same, (Story’s Eq. Pl. 532, § 688.) Here the bill denies that the agreement of August 1839 had been performed by J. Strong, but says nothing about a part performance. And the answer admits it hanot been fully performed. No discovery of a part performanee was therefore called for by the bill, or necessary to be stated in support of the plea. And yet, the answer not only sets out a part performance of the agreement, but also the payment of money which was not required to be paid to the complainants by the agreement; and which money the appellant, by his answer, insists should be applied towards the payment of the judgment. This part of the answer, as well as that which sets up the fact that certain lands had been conveyed to the complainants after appraisal and in pursuance of the agreement, is clearly an answer to the relief prayed by the bill, to that extent. And it is inconsistent with the plea, in which the appellant declines to answer at all as to any part of the relief sought by the bill. The plea, therefore, must be overruled as such. But as it may, in connection with that part of the answer which sets up a part performance of the agreement, amount to a defence to the suit either wholly or in part, it should be permitted to stand for an answer ; with liberty to the complainants to except, and thus to obtain a full and perfect answer to the whole bill. u

The order of the vice chancellor must be modified accordingly, without costs to either party on this appeal. The complainants, however, are entitled to their costs upon the argument of the plea and of entering the order overruling the plea and allowing it to stand for an answer. And if they except to the answer, the defendant Maltby Strong must answer those exceptions within twenty days, or within such further time as the vice chancellor, by an ex parte order or otherwise, may allow for that purpose.

Order modified accordingly.


author: The Chancellor

text:
    Anonymous.
    1842. Oct. 21.
    Where the owner of the equity of redemption is decreed to be a bankrupt during the pendency of a suit to foreclose a mortgage, the assignee in bank, ruptcy must be made a party before a decree can. be regularly taken in such suit.
    This was a bill to foreclose a mortgage, and during the pendency of the suit the defendant who was the owner of the equity of redemption was decreed to be a bankrupt.
    J. D. Willard, for the complainant,
    moved for the usual decree upon the bill taken as confessed against the defendant ; but upon the fact of the decree in bankruptcy being stated,
   The Chancellor

said the suit had- become defective and could not be further proceeded in until the assignee in bankruptcy was made a party; that such assignee was not in the situation of a new purchaser from the defendant pendente lite, as the equity of redemption was cast upon him by operation of law.


text:
    Burr vs. Burr.
    A condonation by the wife of cruel treatment on the part of the husband is subject to the implied condition that he shall thereafter treat her with conjugal kindness. And subsequent acts of cruel treatment will revive the previous injury which had been conditionally forgiven.
    Condoned cruelty will be revived, so as to entitle the wife to a decree of separation, by subsequent acts of cruelty which of themselves would not have been sufficient to justify a separation.
    It seems that subsequent acts of cruelty will not revive condoned adultery so as to entitle the wife to an absolute divorce for the adultery which had been previously forgiven by her.
    The time for bringing a suit for a separation from bed and board on account of cruel treatment is not limited to five years. And the court of chancery in its discretion may allow such a suit to be brought at anytime within the ten years limited by the revised statutes for bringing suits in equity.
    1842. Oct 21.
    The court of chancery, upon a decree for a divorce or separation, may allow alimony to the wife to continue during her life although she should outlive her husband; and may decree that the allowance for her alimony shall belong to her as her separate estate, with the right to appoint or dispose of such part thereof as may not be used by her in her lifetime, in case her husband should survive her, by an instrument in the nature of a will.
    Whether the court, upon a decree for a divorce, or for a separation, can award a gross sum to the wife for her alimony instead of an annual or periodical allowance; Quaere ?
    Where the husband was admitted to be worth more than half a million of dollars in productive property and had but one relative who had any claim to a provision from his bounty, and where the defendant had treated his wife with great cruelty for many years, she was allowed an annuity of $10,000, to be paid to her quarterly during her life, for permanent alimony, on a decree of separation from bed and board.
    This was an appeal from a decree of the vice chancellor of the fourth circuit. The bill was filed by the wife against her husband for a separation from bed and board, on the ground of cruel treatment, and of such conduct on the part of the defendant towards the complainant as rendered it unsafe and improper for her to cohabit with him. It appeared that the parties were married in the spring of 1799, and resided in this state, most of the time at Lansingburgh. They had three children all of whom were dead at the time of the commencement of this suit, in January, 1841. Immediately after the marriage, the defendant caused an injury to his wife, unintentionally as he alleged in his answer, which so far destroyed her health as to render her an invalid forever afterwards. He also, within a year or two after his marriage, commenced a course of unkind, harsh, and tyrannical conduct towards her, which continued with very slight intermissions, until she finally separated from him six years before the commencement of this suit. The proofs also showed that as early as 1812 or 1813, he pulled her chair from under her, threw her upon the hearth and dragged her across the room, in the presence of his servants ; and that shortly afterwards she was compelled to fly from his house for fear of injury from his violence. She was afterwards induced to come back and live with him, on account of her children. But • in 1829 or 1830 she was again compelled to flee from his house on account of his personal violence to her ; and she continued separated from him about two months, when she again consented to come back and live with him, upon his promise to treat her better for the future. She finally left him in the spring of 1835, for fear of personal violence and further injury to her health, after two or three days of abusive and inhuman treatment on his part; from which time he made no provision whatever for her support, although it appeared that his property was reputed to amount in value to a million of dollars. It appeared also that ten or twelve years after the marriage the defendant received about $7000 as the distributive share of his wife in her father’s estate. After the commencement of the suit an order was made for the allowance of $2000 annually, for ad interim, alimony, to commence on the 1st of February, 1841. The vice chancellor, upon the pleadings and proofs, decided that the defendant had been guilty of cruel and inhuman treatment of the complainant by repeated acts of violence and cruel conduct, so as to render it unsafe and improper for her to cohabit with him, or to be under his dominion or control. He therefore decreed a separation from bed and board, and allowed her $10,000 a year for alimony, to commence from the date of the decree, payable quarterly during her life, to be secured to her in such manner as one of the masters of the court should approve, with the costs of the suit to be taxed. From this decree both parties appealed to the chancellor ; the defendant from the whole decree, and the complainant as to the amount of alimony.
    The following opinion was delivered by the vice chancellor :
    Willard, V. C. The law of this state restricts the power of the court in granting a separation from bed and board, to applications on the complaint of the wife alone j and in this respect it is different from the English ecclesiastical law, which grants such a separation to either husband or wife, indiscriminately. The 51st section of article 4th, of separations or limited divorces, describes the causes for which such separations may be decreed. They are, 1st. The cruel and inhuman treatment by the husband of his wife ; 2d. Such conduct on the part of the husband towards his wife, as may render it unsafe and improper for her to cohabit with him; and 3d. The abandonment of the wife by the husband, and his refusal or neglect to provide for her. These causes aré more comprehensive than those for which a similar separation is decreed by the ecclesiastical courts in England. The facts disclosed by the bill and proved by the testimony bring this case within the first or second, and perhaps both the first and second .subdivisions above named. A long and uninterrupted succession of acts on the part of the" defendant, not merely of rudeness and petulance, but of severe and brutal usage, is shown, painful to contemplate, and in some instances too loathsome to disclose. No one can carefully read the testimony without feeling that the complainant has not been rash in her appeal to the court for redress. She has borne the ill usage of her husband with patience and meekness— she is in no instance shown to have provoked it by her own misconduct. During the whole period of more than thirty-five years- that she continued with the defendant, she appears to have acted towards him as a devoted wife. Her treatment of him has been uniformly kind, affectionate and conciliatory, and she is shown to have rendered services to him in respect to dressing him and cleansing his person, which none should require of another unless rendered helpless by age or disease.
    The 53d section of the same article permits the defendant in his justification to prove the ill conduct of the complainant—and on establishing such defence, to the satisfaction of the court, the bill shall be dismissed. This is on the principle that the court will not aid the party who has herself occasioned the injury for which she seeks redress. Such defence is analogous to the compensatio

      crimenum of the cannonists. (Beebe v. Beebe, 1 Hagg. 789.) No such defence is interposed here and none such is proved.
    But the counsel for the defendant have urged that the subsequent cohabitation of the parties has amounted to a condonation of all prior offences. They would thus exclude from the consideration of the court every cause for a separation which existed previous to such condonation. In effect, they seek to narrow down the injury to the conduct of the defendant which lead to the final separation of the parties.
    This, however, is not a correct view of the doctrine applicable to this class of cases. A condonation is a conditional forgiveness. It implies that the complainant will not put forth the bad conduct which is forgiven, if the defendant shall continue ever afterwards to treat her with conjugal kindness. Hence it follows, that, after an act of personal abuse has been condoned by subsequent cohabitation, a repetition of it affords not only a substantive cause of separation, but revives also all those which existed prior to the condonation. (See D'Aguilar v. D'Aguilar, 1 Hagg. 733. Beebe v. Beebe, 1 Hagg. 789.) The cases on this subject in the English books are numerous and are familiar to the profession. Slight acts of abuse, and which of themselves would not sustain the bill, are a breach of this conditional reconciliation, and revive all antecedent acts of cruelty and misconduct.
    The counsel have urged also the delay of the complainant in exhibiting her bill as a waiver of all claim to the relief sought. On a bill for a divorce on the ground of adultery the statute requires that the suit shall be brought within five years after the discovery of the offence charged. But there is no such statutory requirement with reference to a separation from bed and board. No doubt in the latter case, a long delay might, in peculiar cases, justify the court in treating the complaint as a stale one and dismissing the bill. (See Walker v. Walker, 2 Phil. 153.) But in the present case, the time from which to compute is the day the complainant left the defendant in 1835. The cause for which she left was in my judgment sufficient to revive all previous offences of the defendant. (Durant v. Durant, 1 Hagg. 733.) Since that time there has been no condonation. The delay of exhibiting the bill has not been such, even if unexplained, as to impair the complainant’s rights. (See Popkin v. Popkin, reported in note to Durant v. Durant, 1 Hagg. 733.) But there is a satisfactory explanation given for the delay. I think the complainant is entitled to a decree of separation from the bed and board of the defendant forever.
    The remaining question is as to the amount of alimony to which the complainant is entitled. The 54th section enacts that upon decreeing a separation, the court may make such further decree for the suitable support and maintenance of the wife, by the husband or out of his property, as may appear just and proper. The 56th section allows a decree for a separation to be revoked on a reconciliation of the parties, under such regulations and restrictions as the court may impose. A decree for a separation, or limited divorce, does not per se affect the question of property between the parties. The wife is still entitled to dower in the real estate of which her husband is, or shall thereafter be, seized ; and she can also claim her distributive share of his personal estate in case he dies intestate, in the same manner as if no such decree had been pronounced. The statute has made a difference in this respect, between a limited divorce a mensa et thoro, and a divorce a vinculo matrimonii for adultery. In the latter case, the wife being the guilty party, forfeits her dower and her right to a share of the personalty under the statute of distributions ; and the husband still retains his marital rights to her real and personal estate, in the game way as if no divorce had been pronounced. If the husband is the guilty party, the wife is allowed, in such case, to hold her real estate, if she have any, discharged of his claim •, as well as her personal estate which has not been already reduced to possession by him. (See 2 R. S. 145 and 142, 1st ed.) But I apprehend, after a divorce for adultery, the wife being the complainant, is still entitled to be endowed of the lands of which her husband has been, theretofore seized. It is unnecessary, however, to decide or discuss this question, since there is a marked distinction between the consequences which result from a divorce a vinculo matrimonii, and a separation merely from bed and board. It is adverted to merely to show that the question of alimony does not necessarily involve the distribution of the husband’s estate.
    The complainant insists that she is entitled to have a gross sum instead of an annuity, awarded to her by the court. It is supposed that the opinion of the chancellor on the exceptions to the master’s report on the subject of ad interim alimony, in this very cause, has not left this an open question. The chancellor remarks that on the complainant establishing her bill, the court will be authorized to award to her a very considerable part of the defendant’s estate. And he intimates that the title to a third and perhaps to the half of it may be involved in this controversy. If by this the chancellor intended to decide that the court, in a case like the present, would divide the defendant’s estate, on the same principle that controls its distribution on the death of the defendant intestate, I apprehend he is not supported by any adjudged case. In Peckford v. Peckford, (1 Paige, 274,) where there had been a divorce for the adultery of the husband, the chancellor allowed the wife, for her alimony, an annuity during her life equal to the interest at six per cent on one third of the sum which it was proved the defendant was worth. In Lawrence v. Lawrence, (3 Paige, 267,) he approves of the same principle, referring to the last mentioned case as an illustration of the rule ; and also to Cooke v. Cooke, (2 Phil. 40.) In the latter case Sir John Nicholl allowed the wife an annuity during life of ¿450, being one half the income of the husband. In the opinion delivered by Sir John, he adverts to five other causes which had been decided in which a like principle had been applied. He observes that the court always gives a larger proportion when the income is smaller. In the case of The Countess of Pomfret, where the income of the husband was twelve thousand pounds sterling, or nearly sixty thousand dollars, the court allowed the wife an annuity daring life of four thousand pounds sterling, or nearly twenty thousand dollars. In Smith v. Smith, (2 Phil. 235,) the court allowed the wife an annuity of a thousand pounds sterling during her life, being one half the income of the husband. In this case the bulk of the fortune originally belonged to the wife. Sir John Nicholl remarks in that case that it would be just, where the husband violates the matrimonial engagement and the fortune came from the wife, that the husband should give the whole of it back to her; but he admits that the courts have not yet gone that length. Even where the bulk of the fortune belonged to the husband, the court allows a competent income to the wife. She is the injured party and has a strong claim upon the court.
    This question came before Chancellor Kent in Barere v. Barere, (4 John. Ch. R. 187, 197.) After examining the main question with his usual ability, he consigns the custody of the child to the mother, and directs the moderate annuity of $200 a year to be paid by the husband to the wife, for the support of herself and child. He dóes not speak of a gross sum being allowed in that or any other case.
    I infer from the foregoing cases that the chancellor could not have meant that' the one third or one half the defendant’s entire estate should be made over to the complainant in case her bill was established, but merely that the one half or one third the income of it might be thus appropriated, at the discretion of the court. I find no case where the chancellor, or any other court, has directed a sum in gross to be paid the wife. There is a looseness of expression in the marginal note to some of the cases, and in some of the opinions, which give countenance to the claim set up by the complainant. But the cases themselves do not sustain it. I think it has been shown that the claim to a gross sum is incompatable with some of the provisions of-the statute, where, as in this case, the claim arises out of a limited divorce. Besides, the terms used in the statute,
      support and maintenance, are not the phraseology which would be used if the legislature intended an alienation of an estate; or a transfer in perpetuity to a person, of either real or personal property. The 55th section authorizes the court to make order for the support and maintenance of the wife and children by the husband, even though a decree for a separation be not made. Hence it is inferred that those terms are used in their popular sense.
    Again, if the legislature intended, by the section in question, to authorize the court to grant a sum in gross to the wife, the power should perhaps only be exercised in that form where there are children of the marriage who continue to reside with and adhere to the wife, and for whom the defendant will not probably make any provision. But there are no children of the marriage now living, in the case before me, and no special reason has been alleged why the court should depart from the usual course in such cases. I shall not, therefore, direct a sum in gross to be paid the complainant.
    With respect to the sum which ought to be allowed her as an annuity, there is no fixed rule by which the court should be guided. To restrict her to the sum which has been deemed enough by the defendant to support his own family, would be unjust and niggardly. The sum of money which she brought to him thirty years ago, would, if it had been kept properly invested, at this time produce an annuity of two thousand dollars. It is true, the bulk of the estate belongs to the husband, and has been produced by his industry, prudence and skill. He is shown, I think, to be worth a million of dollars. A portion of it is in real estate, in which, if the complainant survives him, she will be entitled to dower. It is not probable that the defendant can realize from so large an estate a net income equal to a moiety of the interest of the capital. The losses incident to stock .operations, as well as failures among other debtors, will occasion a heavy drawback from his monied profits. These things must be regarded in fixing the amount of alimony.

      The early habits and respectability of the complainant must also be considered. ° She is proved to have been a lady of education and refinement, accustomed to move in the first circles in Connecticut, where she was born and spent the early part of her life. Before her inter-marriage with the defendant, and afterwards, her father’s family occupied the highest rank in society, both in regard to wealth and respectability. The prospect of no lady for an honorable and happy settlement in the world could have exceeded hers. Surrounded by whatever can make the female character lovely and attractive, and accustomed to the elegancies of refined society, she had a right to anticipate, from her union with the defendant, a life of usefulness, happiness and honor. But how vain and fallacious have been her hopes ! Instead of beholding in the defendant a kind and amiable companion, alleviating her sorrows by his sympathy, and heightening her joys by his participation, she soon foutid herself a slave to a master, petulant, capricious and cruel. Even the last source of a woman’s happiness—the pleasure derived from beholding the opening beauties and excellencies of their common offspring— was embittered with the reflection that they must carry with them to a premature grave, the evidence of their father’s profligacy. Her own health too is shewn by the evidence to have been permanently and irretrievably impaired by the loathsome disease which he imparted to her. And thus, instead of occupying a station in society of usefulness and active benevolence—of being a guide and a patron to a numerous circle of relatives and friends—she was compelled to struggle with her own infirmities; to hear herself constantly addressed in terms of rudeness, profanity and obscenity, by the man who had vowed to love, to cherish and protect her; and to render those services to his person which cannot be described without an offence to delicacy. This is a mere sketch of the case as it appears in the depositions of the witnesses. And although money cannot compensate for blighted hopes, a broken constitution and a broken heart, it is all the recourse which human laws have provided for such a case. As a means of punishment to the defendant, who is proved to be in the wrong, and for the sake of public example, it affords a more ample weapon j especially when applied to one whose money is his god.
    In view of all the circumstances of the case, and considering that the complainant will be entitled to dower in the defendant’s real estate if she survives him, I shall decree that the defendant pay to the complainant an annuity during her natural life of ten thousand dollars, to commence this day, and to be paid quarterly on the first day of January, April, July and October in each year. The alimony heretofore granted of two thousand dollars a year, will cease at the commencement of that now decreed. And the complainant must recover her costs against the defendant to be taxed.
    The defendant must give security for the payment of the annuity, unless the matter is adjusted by the parties. A reference to a master may be had if necessary, to take such security. This may be provided for in the decree.

      Samuel Stevens, for the complainant.
    The evidence shows sufficient legal cruelty on the part of the defendant towards the complainant to entitle her to a sentence or decree of separation from bed and board forever. The husband’s conduct is legal cruelty, if by cohabitation the wife is exposed to bodily hazard, and intolerable hardship. Words of menace intimating a malignant intention of doing bodily harm is legal cruelty—the court must not wait till threats are carried into execution. D'Aguilar v. D'Aguilar, 1 Haggard, 773.) The defendant’s treatment of his wife was cruel and inhuman within the meaning of the statute, and indeed such, as to render it unsafe for her longer to have cohabited with him. (2 R. S. 147, § 51. Id. 2d ed. 81, § 49.) The wife’s delay to file the bill for redress does not even raise a presumption against the truth of the charge. (1 Haggard, 773.) The subsequent acts of cruelty destroy or take off the effect of acts on the part of the complainant, which might otherwise be evidence of condonation. There has therefore been no condonation of the first legal cruelty. (1 Haggard, 773.) Acts of cruelty which would not support a bill for separation will take off the effect of condonation, and in such case the first acts of cruelty are to be looked upon the same as if recently committed. (Ibid.) In this case justice requires that a sum in gross should be decreed to the complainant for alimony. The court has full power to make such a decree. (2 R. S. 747, § 54. Id. 2d ed. 81, § 52. 1 Paige, 274, 275.)
    D. Buel & J. Pierson, for the defendant.
    The return of the complainant to the husband’s house and her cohabitation with him subsequently to her departure, is evidence of a condonation of all previous offences; therefore any causes of separation which existed previous to the reconcilements of the parties should not enter into the consideration of the court. The evidence is not sufficient to authorize a decree of separation. If the evidence should be deemed sufficient to authorize a decree of separation, the court, on fixing on an annual sum to be paid for the complainant’s support, will have regard to the age of the complainant and the style and manner of living to which she has been accustomed since her marriage—which may be ascertained by the court from the testimony, or by reference to a master. If an annuity be decreed to the complainant, it should not extend beyond the joint Jives of the complainant and defendant. The decree should have allowed to the defendant, towards the costs of the suit, the sums he has advanced on the former orders of the court towards the complainant’s costs and expenses of the litigation, instead of requiring the whole costs to be again paid.
   The Chancellor.

The first question for consideration in this case is whether the complainant has established such a case as to entitle her to a decree of separation. And certainly there cannot be any doubt on that part of the case, if her cohabitation with her husband after most of the acts of cruelty on his part took place is not an absolute bar to a suit founded upon them. The conduct of the husband was repeatedly such as to raise a well founded apprehension on the part of his wife of such violence as would endanger her health if not her life j and this not merely when he was under the influence of liquor, but also when he was influenced only by his ungoverned temper and most brutal appetites. Indeed, it appears from the whole testimony that this unfortunate lady was, for more than thirty years, subjected to a state of suffering almost beyond human endurance. I allude not to the fact, which is not denied, that her health was permanently destroyed by him immediately after the marriage, and for which a life of kind offices and delicate attentions on his part could scarcely have atoned. But the proof shows that notwithstanding this strong claim upon him to make up to her in kind treatment for her impaired health and bodily sufferings, the result of his former indulgencies as admitted by him, he has treated her more like a menial.servant than a wife during nearly the whole time she lived with him. Those who had been acquainted with her before her marriage show that she belonged to a very respectable family in Connecticut; was amiable, talented, and accomplished, and moved in the first circles in the neighborhood of her' father’s residence. And yet with a fortune more than sufficient for all the comforts and even the ordinary superfluities of life, her husband, for a third of a century, subjected her to the most degrading and sometimes the most disgusting services, many of which were rendered necessary by his own vicious indulgences. He habitually used towards her harsh, ungentlemanly, profane, and opprobrious language—cursing her whenever he got angry either with her or any one else—calling her a a dirty bitch,” and following her from room to room whenever she attempted silently to escape from the effects of his anger, or the indulgence of his more than brutal passions ; and this too in the presence of his servants and family. And on several occasions he resorted to personal violence amounting to such legal cruelty as would justify the court in decreeing a separation ; connected as those acts of violence were with a general course of unkind treatment. On one occasion it appears that for no other cause of offence than that a servant had, by accident, dropped the head of a fish upon the floor, he immediately commenced abusing his wife for it—cursing her and applying to her his common ungentlemanly epithet; and he finally thrust his fist under her nose and pushed her head back in anger, although she had immediately expressed her regret that the accident had occurred. At another time he pulled her chair from under her, threw her upon the hearth, and dragged her across the room in the presence of his servants in the kitchen, under circumstances which showed an utter disregard of her health if not of her life. Sometimes he has deprived her of the use of a fire in her room when she was sick ; and at others he has thrown open the windows and doors of her room to compel her to leave her bed, when she was in the same situation, to the manifest danger of her health. She also alleges in her bill that he occasionally resorted to blows when no witnesses were present; which charges are not specifically denied in the answer, which is put in without oath, although there is in the concluding paragraph of thé answer a general traverse of all unlawful acts and all other matters charged in the bill. And the facts testified to by the witnesses in relation to his conduct on other occasions leaves very little room to doubt that these acts of cruelty also occurred as charged. Conduct infinitely less aggravated than this was, in the case of Lockwood v. Lockwood, (2 Curteis' Eccl. Rep. 281,) considered by Dr. Lushington, Dean of the Arches, as sufficient to justify a decree of separation.

The circumstances which occurred at the time of the final separation, and shortly previous to that event, and the causes of the defendant’s violence at that time, as well as at the previous separation in 1813, are too degrading to human nature to admit of a particular detail. The defendant’s counsel insist, however, that his conduct in 1835, improper and indecent as it evidently was, did not amount to such legal cruelty as would of itself justify a decree of separation ; and that all his previous acts of violence and misconduct were absolutely condoned by the subsequent cohabitation of the parties, and cannot now be revived and connected with his subsequent acts to entitle the complainant to the relief asked for by her bill.

The law appears to be well settled in the English ecclesiastical courts that condonation of adultery, as well as of acts of cruelty, is a conditional forgiveness only. And that there is an implied condition annexed that the injury shall not be repeated, and that the other party shall be treated thereafter with conjugal kindness. (Durant v. Durant, 1 Hagg. Eccl. Rep. 761. D’Aigular v. D'Aigular, Idem. 781.) It was decided by Dr. Bettisworlh, the Dean of the Arches, more than a hundred years since, in the case of Worsley v. Worsley, (2 Lee’s Eccl. Cas. 572,) that subsequent acts of cruelty after a reconciliation had taken place between the parties, would not only revive condoned cruelty but also the adultery of the party which had previously been forgiven. And the learned Dr. Lushington, in the recent case of Bramwell v. Bramwell, which came before him in the consistory court of Rochester in 1831, (3 Hagg. Eccl. Rep. 635,) held that less cruelty was necessary to revive condoned adultery than to found an original suit for separation. In England the consequences of the establishment of adultery are the same as the proofs of other acts on the part of the defendant amounting to such legal cruelty as will justify a decree of separation from bed and board ; as that is the extent of the sentence which the court is authorized to pronounce, even in a case of admitted adultery. Hence there seems to be no good reason why the offence of adultery should not be revived by the commission of other acts inconsistent with matrimonial duty. Under the statute of this state, however, the consequence of the proof of an act of adultery is an absolute divorce of the injured party from the bonds of matrimony. And for that reason this court, in the case of Johnson v. Johnson, (4 Paige's Rep. 460,) held that subsequent acts of cruelty were not sufficient to revive condoned adultery, so as to sustain a decree for a dissolution of the marriage contract without proof of fresh acts of adultery. Although the decree in that case was reversed by the court for the correction of errors, yet as one of the senators whose vote changed the result, put his decision upon the ground that the condonation had not been satisfactorily established, the question still remains an open one here. (14 Wend. Rep. 648 n. See also Danish Code of Christ. 5, B. 3, ch. 16, art. 5, § 1.) I have no doubt, however, that the principles of the English decisions apply with full force to suits in this state for separation from bed and board for cruel treatment. And according to these principles former injuries^will be revived by subsequent misconduct of a slighter nature than would have been necessary to constitute an original cruelty entitling the injured party to a decree of separation. Such was the decision of Sir John Nicholl in the case of The Marquis & Marchioness of Westmeath, (2 Hagg. Eccl. Rep. Supp. 114.) And that decision was afterwards affirmed by the high court of delegates ; and the lord chancellor subsequently rejected an application of the Marquis for a commission of review. Indeed in most cases of this kind the legal cruelty which will form a sufficient ground to justify a decree of separation, consists in a continued series of acts of ill treatment; and relief could seldom be obtained in any case by an injured wife, if her continued cohabitation, and very laudable efforts to obtain better treatment from her husband for the future, should be held to constitute an absolute bar to her right to connect his last ill treatment with his previous acts of violence and cruelty. Independent of this principle of reviving condoned cruelty, however, I think the testimony of Doctor Leon ard and others, show that at the time when the complainant last fled from her husband’s house, she had good cause to fear serious injury to her health from his worse than brutal conduct.

The objection that the suit in this case was not commenced for some years after she left his house, is sufficiently answered by the fact, that her only surviving child was then living under the protection of his father, and that during his life she was unwilling to involve him in these family difficulties, by the institution of a suit against her husband for a final separation. In the case of Best v. Best, (2 Phill. Eccl. Rep. 161,) the suit was not instituted until five years after the wife left her husband and went to reside with her paramour; and yet the simple affidavit of the husband was received to excuse his delay in instituting his proceedings for a divorce. And in Coode v. Coode (1 Curteis’ Eccl. Rep. 755,) a delay of six years in the bringing of the suit was considered as sufficiently accounted for by proof that a suit was commenced soon after the injury occurred, which suit was soon after abandoned for want of sufficient means to carry it on ; although the complainant in that case was in the receipt of his half pay as a naval officer. (See also D'Aiguilar v. Aiguilar, 1 Hagg. Eccl. Rep. 780.) The legislature having fixed a specific limitation, of five years after the discovery of the injury, in suits for divorce on the ground of adultery, and said nothing as to the time of bringing suits for separation on the ground of cruelty, it is to be presumed that they intended to leave the latter class of cases to the discretion of the court, and to the general limitation as to suits in equity not otherwise provided for, as prescribed by the 52d section of the article of the revised statutes relative to the time of commencing suits in courts of equity. (2 R. S. 302.)

The fact that the defendant has abandoned his habits of intemperance since the separation, affords no sufficient grounds for denying the relief sought by the complainant’s bill. For the testimony of nearly every witness who had any means of knowledge on the subject, concurs in showing that the defendant’s abuse of his wife was not limited to those seasons when he was laboring under the effects of intoxication 5 but that his conduct to her was generally unkind and inhuman, whether he was drunk or sober.

The objection that the decree should have allowed to the defendant, towards the costs of the suit, the sums he had already advanced under the former orders of the court, cannot be sustained ; as there was nothing before the vice chancellor to show that any such orders had been made. Besides, the extra expenses and reasonable counsel fees in this case must probably have exceeded the sums paid ; even if papers had been produced on the hearing in the court below showing what orders had been made and what sums had been paid by the defendant on that account. And the objection that the vice chancellor was not authorized to decree a provision for the alimony of the wife which should continue beyond the’life of the husband, is clearly untenable. The statute authorizes the court to make such order and decree for the suitable support and maintenance of the wife out of his property as may be just and proper. (2 R. S. 147 § 53.) And it certainly cannot be unjust or improper to compel a husband, whose wife has been driven from her home by his cruelty or in consequence of his defilement of the marriage bed, to provide her a suitable support for the remainder of her life; instead of permitting him to dispose of his property to strangers, at his death, leaving her entirely destitute.

Whether the court, in such cases, is authorized to award a gross sum to the wife, instead of an annual allowance, it is not necessary in this case to consider. For it will be more beneficial to the complainant to have a liberal quarterly allowance, for life, than any gross sum which the court would think it proper to give ; and which gross sum, in case of her death in the" lifetime of the husband, might belong to him under the statute of distributions. (2 R. S. 98, § 79.) In making the provision for an annual allowance in this case, however, the decree should have directed that the annuity, if not paid quarterly, as it becomes due, should still belong to the wife as her separate property ; and W’ith power to her to dispose of it as she pleases at her death, by an instrument in the nature of a will, if her husband survives her. So that he would have no inducement to withhold the payment in anticipation of her decease; or to delay her just claims by a protracted litigation in the higher courts until death should have closed the sufferings of the victim of his unparalleled cruelty and restored the allowance for her alimony to his already overgrown estate. And I think the allowance for alimony should have been directed to commence from the time of filing the complainant’s bill on the 12th of January, 1841 j deducting therefrom the ad interim alimony which has been received by her or her solicitor for her use.. If the parties cannot agree upon the manner in which the allowance for alimony shall be secured to her, it must be secured to the New-York Life Insurance and Trust Company, as her trustee, for her separate use ; with power to her to dispose of it by will or otherwise, either during her life or at her death, as she may think proper. The amount of the allowance up to the 12th of October instant, with interest on the arrears previous to the date of the original decree to be computed from that time, and on the residue from the respective quarter days thereafter, is to be paid immediately. And the subsequent allowance must be paid quarterly from the 12th of October instant; and, if not paid at the times when the quarterly payments respectively become due, the interest must be paid thereon from those times.

The amount which the vice chancellor has allowed for permanent alimony, although apparently large, is not too much when all the circumstances of this case are taken into consideration. . The husband’s property is estimated at a million of dollars by some of the witnesses, and is conceded by his counsel to be at least half of that amount. His annual income, therefore, must be from thirty to sixty thousand dollars. And no one has any claims upon his bounty but his unfortunate son by a former marriage, whom he has abandoned. If a few years of affluence can, to any extent, compensate this complainant for more than thirty years of unexampled sufferings and misery, either by the gratification of her feelings in the remuneration of those who have harbored and supported her in adversity, or in securing to her those indulgencies which her health requires, it cannot be an improper exercise of the discretion of this court to give to her a most liberal allowance for permanent alimony. In Mytton v. Mytton, (3 Hagg. Eccl. Rep. 658,) Sir John Nicholl allowed ¿61000 sterling per annum, out of an income of ¿66000 which was subject to a considerable incumbrance for debts. In Smith v. Smith, (2 Phil. Rep. 237,) where the whole income was ¿62000, one half thereof was awarded to the wife. And in the case of The Earl of Pomfret, decided in the Arches court of Canterbury in 1796, the wife was allowed one third of the income, or ¿64000 sterling—nearly double the amount of the allowance in this case—although the husband was a peer of the realm and required a large income to support that dignity. (See 2 Phil. Rep. 43, 110 and 236.) If ever a case called for an extraordinary allowance, this certainly is one ; for I think it is without a parallel in this or any other country. And here I cannot forbear to remark upon one extraordinary feature of it. It appears from the evidence that during her thirty years of suffering the complainant uniformly treated her husband with kindness, and did every thing in her power to please him, seldom, if ever, saying any thing in reply to his abuse. And she frequently entreated his servants not to mention his brutal conduct towards her out of the family.

With the modifications above suggested, the decree of the vice chancellor must be- affirmed; and the defendant must pay to the complainant, or her solicitor, or next friend, the costs upon these appeals to be taxed.

       Affirmed by court for the correction of errors, upon appeal to that court, in December 1843.


text:
    Marston vs. Paulding & Moore.
    1842. October 31.
    A surrogate’s court has not jurisdiction to compel an administrator to deliver up property, to the owners thereof, which he has wrongfully taken possession of under color of his letters of administration, and claiming it as a part of the estate of the intestate.
    This was an appeal from a decretal order of the surrogate of New-York, denying an application of the appellant to compel the respondents, as administrators, to deliver over to him certain property which they had taken possession of, claiming that it belonged to the estate of the decedent.

      J. L. Mason, for the appellant.

      J. R. Lee, for the respondents.
   The Chancellor.

It is not necessary to examine the question whether the property in controversy in this case was or was not rightfully retained by the respondents as a part of the estate belonging to the decedent. For if it belonged to the appellant, his proper remedy was in a different forum. For the surrogate has no jurisdiction, upon a summary application to him, to compel the administrators to deliver over property to the owner thereof, which property has been taken possession of by them as a part of the estate to be administered by them; although their claim to such property is wholly unfounded, or is merely colorable.

Order appealed from affirmed with costs.


text:
    Anonymous.
    1842. November 23.
    "The complainant in a partition suit must wait the twenty days allowed to an infant defendant to appear, before he can apply to have the register or clerk appointed as the guardian ad litem for the infant.
    This was an application by the complainant in a partition suit to have the register appointed the guardian ad litem- for one of the defendants who was an infant; but twenty days had not elapsed since the return day of the subpoena.

      S. H. Hammond, for the complainant.
   The Chancellor

said the application was premature j that the infant was allowed twenty days after the return day of the subpoena to appear, during which time he had a right to apply and obtain the appointment of a guardian ad litem for himself; and the complainant therefore must wait the twenty days before he made an application to have the register or a clerk appointed as guardian to appear and defend the suit for the infant defendant.


text:
    Robinson vs. Meigs and wife.
    1843. January 4,
    A defendant who has appeared in the suit, and who has any interest in prop, erty sold by the master, or in the proceeds of the sale, is entitled to notice of an application to discharge the purchaser, or for a resale.
    This was an application to set aside a master’s sale. It appeared that the property had been previously sold by the master, and that an application had been made to the court, without notice to the defendants who had appeared in the cause, and an order granted discharging the purchaser and ordering'a resale. And upon the second sale the property was sold for less than on the first.

      S. M. Woodruff, for the complainant.

      P. Gansevoort, for the defendants.
   The Chancellor

said the order for a resale of the premises was irregular ; that a defendant who had appeared in the suit, and who had an interest in the property or in the proceeds thereof, was entitled to notice of an application either to discharge a purchaser at a master’s sale, or for a resale of the property where the purchaser had neglected to comply with the terms of sale and to complete his purchase.

Order setting aside the sale.


text:
    Boyd vs. Dodge & Burtis
    1843. January 4.
    Where a junior mortgagee files a hill of foreclosure and makes the holder of a prior mortgage a party defendant, and calls for an answer as to the amount due on such prior mortgage, the latter is entitled to his costs, including the expense of his answer to the bill; to be first paid out of the proceeds of the mortgaged premises, or to be charged upon the complainant personally, in the discretion of the court.
    This was an application for a decree in a foreclosure cause upon bill and answer as to the defendant Burtis, and upon the bill taken as confessed as to the other defendants. Burtis was a prior mortgagee j and the complainants stated in their bill that they did not know the amount due upon the prior mortgage, and prayed for a discovery thereof. The counsel for Burtis asked for costs.

      J. Rhoades, for the complainants.
    D. Cady, for the defendant Burtis.
   The Chancellor

said the defendant Burtis, as a prior mortgagee, was entitled to his whole costs, including the costs of his answer, to he first paid out of the proceeds of the mortgaged premises, or to be paid by the complainant personally, in the discretion of the court; that in ordinary cases it was not necessary to- call for an answer from the prior mortgagee as to the amount due upon his mortgage, but the amount should be left to be settled by the master upon the usual order of reference, under the 134th rule of the court and that if the complainant called for an answer from the prior mortgagee without any sufficient cause, he ought to be charged with the extra costs occasioned thereby, to be paid by him personally.


text:
    Howell vs. Ripley and others. Holford vs. Spafford and wife.
    Where a junior mortgagee filed his bill for the foreclosure of the equity of re. demption of the mortgaged premises, subject to the lien of the prior mortgage, and obtained the appointment of a receiver of the rents and profits of the premises; and afterwards the prior mortgagee filed his bill of foreclosure, and obtained an order appointing the same person as receiver in his suit who had been appointed in the previous suit; Held that the prior mortgagee was only entitled to the rents and profits due at the time of the appointment of the receiver in his suit, and to such as accrued thereafter; and that the junior mortgagee was entitled to all the rents and profits received by such receiver prior to the appointment of the receiver in the suit of the prior mortgagee.
    A mortgagee has no specific lien upon the rents and profits of the mortgaged premises which accrued and were collected before he attempted to assert a claim to such rents and profits. Nor has he any legal or equitable right to compel a junior mortgagee in possession, or an owner of the equity of re. demption who is not personally liable to pay the prior mortgage, to refund any part of the rents and profits which were received by such junior mortgagee, or owner, before such prior mortgagee attempted to acquire a specific lien upon the rents and profits of the mortgaged premises by the appointment of a receiver.
    It is not the practice of the court of chancery to appoint two separate receivers of the same property, in different suits; but the proper course is to extend the receivership in the first suit over the second, subject to the legal and equitable claims of all parties. And the rights of the parties in each suit are substantially the same as if different persons had been appointed at the several times when such receivership was granted, and extended.
    When a receiver is appointed in a suit he is appointed for the benefit of such of the parties in the suit as it shall afterwards appear were entitled to the fund in controversy; but not for the benefit of strangers to the suit.
    1843. January 23.
    If a receivership interferes with the rights of a stranger, such rights, on the application of the latter to the court, will be protected against any inequitable interference of the receiver.
    This was an appeal from a decision of the vice chancellor of the first circuit, relative to the disposition of the rents and profits of mortgaged premises in the hands of a receiver. The premises, a house and lot in the city of New-York, were in the first place mortgaged to M. Bailey, for $5000 and interest; they were afterwards mortgaged by Ripley and wife, the then owners of the equity of redemption, to Jackson, who assigned his mortgage to Howell, the complainant in the first suit. Ripley and wife then conveyed the equity of redemption in the premises to Spafford, who again mortgaged them to Holford, the complainant in the second of the above entitled suits, for a little less than four thousand dollars.
    In May, 1841, Holford filed a bill to foreclose his mortgage, subject to the lien of the prior mortgages, and therefore only made Spafford and wife parties to his bill. He obtained an injunction restraining the owner of the equity of redemption from receiving the rents of the mortgaged premises. And on the 12th of October of the same year he procured the appointment of a receiver in his suit, to collect the rents and profits of the mortgaged premises, who subsequently collected the rent. The usual decree was obtained ih that suit; and on the 12th of November the master offered the premises for sale under such decree, but no person would bid upon them subject to the incumbrance of the two prior mortgages.
    In June, 1841, Howell filed a bill to foreclose his mortgage, subject to the lien of the first mortgage, the holder of which was not made a party; and by inadvertence he neglected to make Holford, the third mortgagee, a party to his suit. But the day after the attempt to sell under the decree which had been made in Holford’s suit, Howell amended his bill by making Holford a party, as a junior mortgagee ; and on the 10th of January, 1842, an order was entered in Howell’s suit appointing the same person as receiver of the rents and profits of the mortgaged premises who had been appointed in Holford’s suit. Two or three weeks afterwards the mortgaged premises were sold under Howell’s decree, and did not bring enough to pay his debt and costs, by nearly $1000.
    Upon an application to the vice chancellor he decided that the complainant in the first of these causes was entitled to the rents and profits in the hands of the receiver, as well those collected before he was appointed the receiver in the suit of Howell, as those which were collected afterwards ; deducting therefrom the taxable costs of appointing the receiver. Holford appealed from this decision, claiming that, he was entitled to the rents and profits collected by the receiver in his suit previous to the 10th of January, 1842, when the receivership was extended to Howell’s suit.

      C. G. Havens, for the appellant.
    Holford is entitled to the rents collected by the receiver previous to the appointment of the receiver in Howell’s suit. A mortgagee of the realty has no lien or claim on the rents until a receiver is appointed. (Bank of Ogdensburgh v. Arnold and others, 5 Paige, 38.) Rents can only be reached by the mortgagee, in equity, by showing the insufficiency of the security, and having a receiver appointed. Until the appointment of a receiver the mortgagor himself, or any creditor or assignee may collect the rent. And the appointment of a receiver cannot operate retrospectively; it cannot affect rent previously collected by a receiver appointed in a suit on another mortgage. Holford is entitled to the rent collected by the receiver in his suit, before his appointment in Howell’s suit by reason of his diligence. He obtained a preference as to such rent by reason of his superar activity.

      M. M. Davidson, for the respondent.
    A mortgagee in a foreclosure suit is entitled to a receiver of the rents of the mortgaged premises pending the suit, where the premises are an inadequate security for the mortgage debt, and where the mortgagor is irresponsible, (8 Paige, 505.) Howell’s mortgage is a prior incumbrance as well upon the rents as upon the realty, and is entitled to be first paid. Holford has only a lien on the surplus remaining after payment of all prior incumbrances. His equity extends no farther than this ; the mortgaged premises and the rents arising therefrom form an equitable fund, which is to be distributed among all the incumbrancers, according to their respective priorities.
   The Chancellor.

I think the vice chancellor erred in supposing that the respondent was entitled to any part of the rents of the premises which became due and were actually collected by the receiver in Holford’s suit previous to the 10th of January. When a receiver is appointed in a suit he is appointed for the benefit of such of the parties in that suit as it shall afterwards appear were entitled to the fund in controversy ; but not for the benefit of strangers to the suit. If the receivership interferes with the right of a stranger, he may apply to the court to be heard fro interesse suo ; and his rights will be protected against any inequitable interference therewith by the officer of the court. But the appointment of a receiver does not give to a mere stranger to the suit the benefit of the proceedings in that cause, so as to authorize him to claim that which he would not have been entitled to if such receiver had never been appointed. Here, the appellant, as he had a perfect right to do as a junior mortgagee of the equity of redemption, filed his bill against his mortgagor only, without making the holders of either of the prior mortgages parties, to obtain a foreclosure and a sale of the equity of redemption which had been mortgaged to him; and also secure the benefit of the rents and profits of the mortgaged premises until the prior mortgagees should think proper to assert their rights to the possession of the property, and the rents and profits thereof, under their mortgages.

What then were the rights of Howell, as against the receiver in Holford’s suit, previous to the 10th of January, 1842 1 His right was this, if the owner of the equity of redemption was willing to relinquish the possession to him, as a prior incumbrancer, so that he might collect the rents and profits thereafter to be received, and the receivership in Holford’s suit interfered with his right to take such possession, the court, upon a proper application and notice to Holford and the receiver, would have ordered the latter to let him into possession, or to hold the rents and profits which should, thereafter be received'subject to his equitable claim thereon as prior mortgagee. But as he would not have been entitled to recover the back rents and profits which such owner had previously received, neither could he claim those which had been intercepted from coming to the owner of the equity of redemption by the appointment of a receiver; and which had passed into the hands of such receiver for the benefit of the complainant in the suit in which he had been appointed, before Howell had attempted to exercise his right to the possession of the property or to receive the rents and profits. In other words, the rights of Howell and of Holford would in that case have been substantially the same as if the latter had himself taken possession of the mortgaged premises as a junior mortgagee, and had received the rents and profits up to that time, and Howell had then for the first time applied for a receiver of the rents and profits of the mortgaged premises. Such prior mortgagee would unquestionably, upon showing that the mortgaged premises were insufficient to pay his debt and costs, be entitled to a specific lien upon the rents and .profits thereafter to be received, to satisfy the deficiency. But he would have no legal or equitable right to call upon the junior mortgagee in possession, or an owner of the equity of redemption who was not bound to pay such prior mortgage, to refund any part of the rents and profits which had been received by them, or either of them, before he attempted to get a specific lien upon the rents and profits of the premises by the appointment of a receiver.

Although, for convenience, it is not the practice of the court to appoint two separate receivers of the same property, in different suits, but to extend the receivership in the first suit over the second subject to the legal and equitable claims of all parties, the rights of the parties in each suit are substantially the same as if different persons had been appointed receivers at the several times when such receivership was granted and extended.

In the case under consideration, the rents received prior to the 10th of January were a subject of controversy in Holford’s suit only, and between him and Spafford, the owner of the equity of redemption, who had been substantially ousted of the possession, in favor of Holford, by virtue of the receivership in his suit. And if Howell had not gotten the receivership afterwards extented to his suit, or another receiver appointed, it is very evident he could not have claimed a specific lien upon the rents and profits which had been collected before he attempted to assert a claim to them. And if another receiver had been appointed, in Howell’s suit, on the 10th of January, 1842, all the right that the complainant in such suit could have claimed, in behalf of such receiver, would have been that the receiver in the former suit should deliver up to him the possession of the premises immediately; so as to enable him to receive and collect the rents then due from the tenants, or which should thereafter become due, and to hold them subject to the rights of the respondent in the suit in which he, had then made the junior mortgagee a party.

The order appealed from must therefore be reversed with costs. The receiver must be directed to pay to the solicitors of Holford the rents and profits received by him while he was receiver in that suit only, after deducting his expenses, disbursements and commissions previous to the 10th of January, 1842 ; and to the solicitor of Howell the rents received after that time, less his commissions and disbursements after the receivership was extended to Howell’s suit. The appellant must pay his own costs upon the appointment of his receiver, and upon the application to the vice chancellor to direct the disposition of the fund; as such an application was necessary by the one party or the other.