text:
    Cushney and wife vs. Henry and others.
    Where the testatrix devised her real estate to trustees, in trust to divide tho rents and profits equally among her three children, or their issue, during the life of the children and of the survivor of them, with cross-remainders in case of the death of either without issue during that time; and upon the death of the survivor, to sell the estate and divide the proceeds thereof • among the issue of such children, thus: if all left issue, then one third to - the issue of each; if two left issue, one half to the issue of each; and if only one left issue, then such issue to take the whole; the issue of each to take as tenants in common ; and if any grandchild of the testatrix died in the lifetime of its parent, leaving issue, and which issue should be living at the death of the surviving child of the testatrix, then such issue to take such share as the parent of such issue would have been entitled to if living ; and the two sons of a daughter of the testatrix died in the lifetime of their mother, the one leaving two children and the other four; Held, that these grand children of the daughter took per stirpes, as the representatives of their deceased parents respectively, and not per capita.
    The rule in Shelly’s case only applies to a limitation of a remainder to tho heirs or the heirs of the body of the first taker; and a limitation of a remainder to the issue of the first taker, to take effect at his death, is valid, and - the issue take the remainder as purchasers.
    Courts of equity, in regard to trust estates, adopt the same rules of law which are applicable to legal estates; and in a partition suit, where all the cestui que trusts are before the court, if the legal estate has devolved on the court of chancery by the death of the surviving trustee, the court will appoint tho-master who sells the property a trustee, so as to carry the legal estate to the purchaser at the sale.
    In all cases of mere passive trusts, the revised statutes have vested the legal estate in the lands in the person or persons entitled to the actual possession, and to the whole beneficial interest in the lands under the trust.
    This was a bill for the partition or sale of a lot of land in the city of New-York, which belonged to Mary Brevoort, before and at her death, in April, 1794. The parties to this suit are the representatives of two of the children of Mrs. Brevoort ; a third child, who was living at the death of his moth», er, having since died without issue. Mrs. Brevoort, by her will, made in 1791, devised all her real estate to three trustees, and to the survivor of them and to the heirs of such survivor, in trust to sell or rent the same, as they should think proper, during the life of her children, and of the survivor of them ; the income or rents to be divided equally among her three children, Abraham Brevoort, Nicholas Brevoort, and Hester, the wife of Joseph Henry, during their natural lives. The testator further directed, that upon the death of either of her children, leaving issue, the part of the income or rent belonging to such child should be paid to such issue. And if either died without issue, his or her share should go to the survivors, or to the survivor and the child or children of such as had died leaving issue; the issue always to stand in the place of, and take such share as his, her or their parent would have been entitled to if living. And upon the further trust, upon the death of the survivor of the children of the testatrix, that the trustees should sell the estate, if it had not before been sold, and pay the money arising from such sale to the issue of such of the children of the testatrix as had left issue then living, as follows : If all her said children should have left such issue, then one equal one third part was to be paid to the issue of each; if only two of them, one half to the issue of each; and if only one should have left issue, then such issue to take the whole. The issue of each always to take as tenants in common ; and if any child of the sons or daughter of the testatrix should die in the lifetime of its parent, leaving issue, which issue should be living at the death of the survivor of the children of the testatrix, then such issue to stand in the place of and take such part of the estate as his, her or their parent would have been entitled to if living. At the time of the making of the will, and at the death of the testatrix, Mrs. Henry, the daughter, had two sons, Henry Brevoort Henry and George W. Henry, both of whom died in the lifetime of their mother, leaving issue. George W. died first, leaving two children, George W. Henry and Hester Henry, two of the defendants in this cause, who are infants, him surviving. Henry Brevoort Henry died about a year afterwards, leaving four children, Mary the wife of R. H, Cushney, James L. Henry, George Henry and Joseph Henry, all of whom are parties to this suit. Hester Henry, the daughter of the testatrix, died in 1831. Nicholas, one of the sons, died in 1798, without issue. And Abraham, the other son, died in 1794, a few months after the death of his mother, leaving two children, Henry Brevoort and Ann Brevoort. Henry Brevoort conveyed his interest in the premises to-his mother, Ann, the wife of J. Odell, in 1819. His sister Ann Brevoort married W. Bolmer, and died in 1822, leaving six children, all of whom were parties to this suit,

      January 28.

      D. Cady, for the complainants and the other children of Henry B. Henry,
    It is insisted that the true construction of the will of Mary Brevoort will warrant the claim made by the four children of Henry B. Henry, that the six grand children of Hester Henry take equally. But if the words of the will can have such construction as would give to the two children of G. W. Henry one fourth of the estate, can such be its legal effect % Suppose the testatrix had devised the estate to her children in the same manner she did the interest, rents, issues and profits, would not each of them, had it not been for the statute abolishing entails, have taken an estate tail by implication, with cross-remainders to the survivors in case either of them should die without issue; and if so, each of them would have taken a fee by force of that statute. (6 Cruise’s Dig. tit. 38, Devise, ch. 12, § 30 to 35. Rosevelt v. Thurman, 1 John. Ch. Rep. 220. 5 T. R. 337. Den v. Slater, 16 John. Rep. 397 to 415.) Rents might be entailed as well as land; and so of trust estates. Although in this case the testatrix intended that her estate should be converted into money and the fund divided, yet the same rules are to be applied in the distribution of the fund as would be applicable in a division of the land itself. (7 Cruise’s Dig. 33, tit. 32, Estate Tail, ch. 1, § 20, 21.) The fund, though money, will be considered as land ; and the will in this case is to have the same construction as would have been given to it had the testatrix devised the land to her children, instead of the interest, rents, issues and profits. (1 Cruise’s Dig. 475, tit. 12, Trust, ch. 1, § 38.) But if the devise to her children is to be regarded as a bequest of personal estate, then whatever words would give a clear estate tail in land, will give the absolute property in personal estate. (6 Cruise’s Dig. 493, til. 38, Devise, ch. 19, § 28. Jacob v. Amyatt, 4 Brown’s Ch. Cas. 543.) So that the devise to the children of the testatrix, whether it be regarded as of re-al or personal estate, gave fo them an absolute estate. And as Hester Henry died intestate, the rights and interests of her six grand children are to be ascertained by the statute regulating descents, or by the statute for the distribution of the estates of intestates; and by either of those statutes, they take equal shares of her estate. (1 R. S. 751, § 2. 2 Id. 97, § 75.) It may be said that the case of Lyon v. Burtiss, (20 John. Rep. 483,) is an authority for saying that the devise over, on the event that either of the children of the testatrix should die without.issue, is good by way of executory devise. Be it so. The same case, at page 489, shows, that whenever the first limitation vests in possession, those that follow vest in interest at the same time, and cease to be executory, and become mere vested remainders, subject to all the incidents of remainders ; and that after the death of Abraham, leaving issue, and the death of Nicholas without issue, Hester Henry, the survivor, became seised in fee tail by necessary implication ; or that she would have been so seised, had it not been for the statute abolishing entails, and by force of which she became seised in fee.
    Another view may be taken of this case, which will lead to the same result. The estate was devised to three trustees and' the survivors and survivor of them, and the power to sell was given to them, the survivors and survivor, and to the heirs, executors and administrators of the survivor. Isaac Stoutenburgh, junior, one of the trustees and executors named in the will, refused to accept the trust, and died in 1799. William Laight qualified as executor, and received the rents and profits of the real estate until 1802, and then died, leaving' Thom-, as Pearsall, the other trustee, him surviving. T. Pearsall refused to accept the trust, and died in 1807; and it is not known . that he has any heir, executor or administrator. Immediately after the death of William Laight, Hester Henry and- the heirs, of Abraham Brevoort, as absolute owners, took possession of the lot; and from that time until her death, in, 1831, they had, possession by their tenants. Thus. Hester Henry had, as. owner,'the possession for twenty-nine years before her death; and if she did' not die seised^ in fee, in whom was the fee t The trustees were all dead, and there was no- person who, as heir, executor or administrator of the surviving trustee, claimed to be or would consent to act as trustee. Hester Henry and the heirs of Abraham Brevoort were the only persons who had any beneficial interest in the premises. They were in the actual possession by their tenants, and in the actual receipt of the rents and profits at the time the revised statutes went into effect; and if they then had but an equitable estate, it was by force of these statutes converted into a legal estate. (1 R. S. 727, § 47.) What legal estate was it ?—an estate of inheritance, or an estate for life 1 If the heirs of Abraham Brevoort had not an estate in fee, and power to convey and devise it to whom they pleased, the conveyance from Henry Brevoort to his mother, Mrs. Odell, must be void; and unless Ann, the other heir of Abraham Brevoort and the wife of William Bolmer, was seised in fee, either in law or in equity, he cannot be entitled as tenant by the curtesy. And if the heirs of Abraham Brevoort were seised in fee after the death of Nicholas without issue, how can it be said that Hester Henry was not so seised 1 And if she was so seised, her grand children must share equally in her estate.
    The case of Barns v. Ballard, (3 Atk. Rep. 71,) shows that where money is devised to four with a right of survivorship, what one of the four takes as survivor, will not, on his death, survive again. In the case before the court, Hester Henry took one sixth, either as one of the heirs of Nicholas or as survivor. If she took that sixth as one of his heirs, she must have taken it in fee; and if she took it as survivor, it would not again survive, and she consequently must have taken an absolute interest therein. As to that sixth of the wThole or one third of Hester Henry’s moiety, it seems, there can be no ground on which the two children of George W. Henry claim half of that third, whatsoever may be thought of their claim as to the other two thirds.

      J. King, for the infant children of George W. Henry, the elder.
    The infant defendants, George W. Henry and Hester Henry, claim the one quarter part of the premises sought to be partitioned, or the proceeds thereof, under the will of Mary Brevoort. It is argued, on behalf of the complainants, that the clause of the will in relation to the dying of the grand children of the testatrix in the lifetime of their parent was intended to provide for the case, if one, not if both of the children of Hester Henry died in her lifetime, leaving issue. That this criticism cannot be sustained is evident from the consideration that the proportion of interest in her estate, intended for her grand children, is given in the will as a general rule of instruction to her trustees, and was expressly intended to prevent the operation of the statute regulating descents. Whether that provision is legal, or otherwise, is another question. The fee of the premises in question, on the death of Mary Brevoort, in February or March, 1794, vested in the trustees. The will is not impeached. The terms of the devise to the trustees are without ambiguity. (Judson v. Gibbons, 5 Wendell, 224.) The devise of the whole estate is directly te the trustees ; not a mere power to sell, &c. but an absolute transfer ef the whole title to the premises in question. (1 Cruise, 539. Shaw v. Wright, 1 Ab. Eq. 176, § 8.) This case required a fee simple to become vested in the trustees, to enable them to execute their trusts ; an estate in fee simple did therefore pass to them. Taking out letters testamentary was not necessary to perfect the title in the trustees. They were devisees without proving the will. (5 Wendell, 227.) But two of the trustees did not act. They should, then, have been required to release. (1 Cruise, 557.) But if this view is not accurate, then we say, although there was no release, the trust estate vested by common law in the trustee who did accept. (In the matter of Stevenson, 3 Paige, 420. Hawkins v. Luscomb, 2 Swanston, 466, and notes.) By the case of Judson v. Gibbons, (5 Wendell, 224,) it appears that Pearsall, after the death of Laight, could have assumed the management of the trust estate; that he would have been a necessary party to a suit, without having released his trust. He therefore was the survivor of the trustees. We say it became vested in the heir or heirs at law of the survivor by the terms of the devise, and that the court of chancery could, at any time, have been called upon to appoint a new acting trustee. And the case of
      Judson v. Gibbons, and the other authorities referred to, will show that the legal estate is now in the heir at law of Pearsall. (1 Cruise, 557, § 52, 53.) And the question may arise whether a good title can be given without making such heir at law a party to this suit. It has been determined that the change of a trustee does not create a revocation of a prior devise. (6 Cruise, 122, §81. Williams v. Owens, 2 Vesey, jun. 595.) Wherever there is a devise in trust to pay over the profits, or to convey or to sell, the legal estate must, in all these cases, necessarily vest in the trustees. (Roberts v. Dixwell, 1 Atk. 607. Symson v. Turner, 1 Eq. Ab. 383. Sylvester v. Wilson, 2 T. R. 444. Bagshaw v. Spencer, 2 Atk. 578. 3 Brown’s Ch. Rep. 347. Henry v. Purcell, Fearne, 75. Horton v. Horton, 7 T. R. 652.) As to the question whether the devise in the will would have been good by way of executory devise, if it had been made directly to her children with the same limitations, or void under the laws of our state, I remark that the devise was to the trustees, to hold the real estate during the lifetime of her children; and after the death of the survivor of them, then to be sold and distributed as directed. This devise, if it had been made directly to her children, would have been good by way of executory devise, the event on which the limitation over was to take effect being certain. The contingency must happen within a period embracing a life or lives and twenty-one years afterwards; and the number of contingencies is not material, if they are to happen within the limits allowed by law. (4 Johns. Ch. Rep. 388. 5 Id. 21. Gillespie v. Miller, 16 John. Rep. 332. 20 Id. 483. 2 Bl. Com. 175. 3 Peters, 115, 117. Fearne, 320, 371. 3 P. Wms. 262.) If there is now no trustee, then the jurisdiction devolved upon this court, upon the general maxim that a trust shall not be permitted to fail for the want of a trustee.
    But it is said that as Hester Henry was the fermor of the rents and profits at the time the revised statutes went into operation, her equitable estate in the premises in question was by the force of the statute converted into a legal estate. (1 R. S. 727, § 47.) But the very next section of the statute (48th) expressly excepts the present case.

      F. B. Cutting, for W. Bolmer and the children of Ann Bolmer, deceased.
   The Chancellor.

The principal, if not the only question in this cause, is, whether the six grand children of Hester Henry, upon her death, became entitled to equal proportions of the one moiety of the premises in question; or whether the two children of G. W. Henry the elder are entitled to one quarter of the premises, and the four children of Henry Brevoort Henry, to the other quarter. This depends upon the construction of the will of Maiy Brevoort, their great grandmother ; for if they are to take as heirs at law of Mrs. Henry, their grandmother, all the grand children, although by different parents, take equally, under the provisions of the revised statutes. (1 R. S. 751, § 2.) It is wholly immaterial in this case, so far at least as respects the beneficial interest of the parties in the premises in question, whether the legal estate was vested in the children of the testatrix and their issue, as her heirs at law, or in the trustees and the heirs of the survivor of them, in trust for the children of the testatrix and their issue. As a general rule, courts of equity, in regard to trust estates, adopt the rules of law which are applicable to legal estates. (1 Saund. on Uses, 269. Garth v. Baldwin, 2 Ves. sen. 646, 655.) And I see nothing in this case to take it out of that general rule. The forty-seventh section of the title of the revised statutes relative to uses and trusts, vests the legal title, in cases of mere passive trusts, in the person or persons entitled to the actual possession and whole beneficial interest in the trust estate. (1 R. S. 727.) But if this was a case coming within the provision of that section, the only effect of that provision would have been, to have vested the legal estate in one half of the premises in Mrs. Henry, for life, with remainder to her issue who might be living at the time of her death, in such proportions as is provided for by the will of her mother, Mrs. Brevoort. This, however, was an active trust, coming within the forty-eighth section of the statute; as the trustees are authorized to sell the estate, and divide the proceeds after the death of all the children of the' testatrix. In order to give the purchaser a good title, under the decree in partition, it may therefore be necessary for the court to appoint the master who sells the property, or some other suitable person, a trustee to join in the conveyance, if the trust has devolved on the court, by the death of the surviving trustee, without heirs, or the only trustee in whom the legal estate ever vested. To prevent any question as to the vesting of the legal estate in the purchaser, the decree in this case may therefore direct that any person or persons to whom the legal estate descended in trust, upon the death of the original trustees or any of them, be removed from such trust; and that a master, to be designated in the order of sale, be substituted or appointed the trustee of the legal estate; so that he may join in the conveyance as such trustee, as well as in his official character as master.

Updn the death of Nicholas Brevoort without issue, in 1798, one half of the beneficial interest in this lot became vested in Mrs. Hemy, for life, as the last surviving child of the testator, with remainder to such of her issue as might be living at the time of her death. The other half was vested in the two children of Abraham Brevoort, for life, or as a conditional fee subject to the contingency of their dying before the termination of the life estate of Mrs. Henry. As Henry Brevoort survived his aunt, his one fourth of the beneficial interest in the lot is now vested in his mother, in fee, under the conveyance from him. And the share of his sister, who died in the lifetime of Mrs. Henry, is now vested in the children of Mrs. Bolrner, under the will. The estate limited to Mrs. Henry, was not an estate tail; and therefore it was not turned into a fee simple by the operation of the statute abolishing entails. The rule in Shelly’s case only applies to a limitation of a remainder to the heirs, or to the heirs of the body, of the first taker. It does not apply to this case, where an estate for life only was given to Mrs. Henry, with remainder to her issue who might be living at the time of her death. The term issue, in such a devise, is a word of purchase, and not a word of limitation. (See Finch’s Ch. Rep. 280, and Coke’s Rep. by Thomas & Fraser, 263, note 15.)

To ascertain whether the testatrix intended that the grand children of Mrs. Henry should take per stirpes, as the representatives of their deceased parents, and not per capita, it will be necessary to examine that part of the will which provides for the distribution of the estate after the death of the last surviving child of the testatrix. She first directs the estate to be distributed among the issue of such of her children as shall have died leaving issue, and that the issue of each shall take as tenants in common. Then comes the provision under which the guardian ad litem of the two infant children of George W. Henry supposes they are entitled to a fourth part of the estate,which would have belonged to their father if he had survived their grand mother. That clause of the will is in these words: “ And if any child of my said, daughter should die in her lifetime, and leave issue, or if any child of either of my said sous should die- in the father’s lifetime and leave issue, and such issue shall be living at the time of the death - of the survivor of my said children, then such issue shall stand in the place of, and take such part of my estate as his, her or their parent would have been entitled to if living.” The counsel for the complainants, and for the other children of Henry Brevoort Henry, supposes this clause of the will was only intended to provide for the case of the death of a part of the children of Mrs. Henry, or of her brothers, leaving issue; but that it was not intended to apply to a case where all died in the lifetime of their father, or mother, so that all the issue of such parent would stand in the same degree of consanguinity to the grand parent. I see nothing, however, in the will to induce a belief that such was the intention of the testatrix; especially, as she had, as to the rents and profits of the estate, already made a provision for the distribution of an equal share to the surviving child and to the issue of such as had died, per stirpes. I have no doubt, therefore, that she intended that the children of each of her grandchildren who might happen to die before the time fixed for the final distribution of her estate, should take the shares which would have belonged to their parents if they had been living at that time.

The death of all the trustees under this will, and without heirs, could not affect the equitable rights of the present parties. In that case, the legal estate, which was limited to the heirs of the survivor, who refused to accept the trust, would probably revert to the heirs at law of the testatrix; but they would take it charged with the trusts in the will, in favor of the issue of Mrs. Henry, after her death, it appears, from the testimony in this case, that both of the sons of Mrs. Henry were in esse at the date of the will. The limitation over to their children, in case of the death of those sons in the lifetime of their mother, is not liable, therefore, to the objection that it is a remainder to the children, or issue, of a person not in existence at the death of the testatrix.

The two children of George W. Henry the elder, are entitled to the beneficial interest in one fourth of the lot in question ; and the decree’ must declare the rights of the several parties accordingly. And the usual directions for a reference to inquire as to the necessity of a sale, and as to specific and general liens, must be given in the decree.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Gates & Colvin vs. Green.
    A lessee of buildings which are consumed by fire, has no reliefj either at law or in equity, against an express covenant to pay rent, unless he has protected himself by a stipulation in the lease, or the landlord has covenanted to rebuild.
    Where there was an express agreement, between the lessee and the agent of the lessor, that the rent should cease if the building leased should be casually destroyed, and that a stipulation to that effect should be inserted in the lease, but which stipulation was inadvertently omitted, and the premises were afterwards accidentally burned, the lessor was perpetually enjoined from prosecuting any suit, or proceeding, for the recovery of rent which accrued subsequent to the destruction of the premises; and the lease was decreed to be given up and cancelled.
    This was an appeal from a decree of the late vice chancellor of the fifth circuit, dismissing the complainants’ bill. The defendant, J. A. Green, was the owner of two lots in the village of Syracuse, on which there was a tavern house and out buildings. These premises were leased by the defendant to S. Cosset, and to another person who was his surety in the lease, for the term of three years from the 1st of January, 1826, at the rent of $250 per annum, payable quarterly. The lessees covenanted to keep the premises in repair during the term, and to leave the same in good repair at the expira» tion of the lease, ordinary wear excepted. On the 12th of March, 1827, Green, who was then at Utica, wrote to S, Strong, his agent at Syracuse, stating that he had been informed, by a letter from Cossit, that he wished to surrender up the lease of the premises on the first of April. He there- • fore authorized Strong to release him, provided he procured a good tenant for the remainder of the term, with satisfactory security. The complainant Gates applied to Strong, a few days thereafter, and agreed to rent the premises for two years if certain repairs were made. Gates afterwards called on the defendant personally, and he consented to make the repairs, provided an increased rent.was given, equal to the interest on the cost thereof. He accordingly wrote his agent to that effect. Arid he again authorized his agent to release Cossit, upon his paying up the lent to the first of April, and procuring a good tenant for the remaining two years, with security for the payment of the rent, and subject to the conditions of Cossit’s lease. The agent thereupon agreed to lease the premises to Gates, for two years from the first of April, 1827. He also agreed to insert a special provision in the lease, that the rent should cease, if the house should be burned down, by casualty, during the term. And D. S. Colvin, one of the complainants, agreed to join in the lease, as surety for the payment of the rent, upon those terms. The. agent, who was an attorney, agreed to prepare the lease in conformity with the agreement. He prepared it accordingly ; but, through inadvertence, neglected to insert therein the special covenant .that the rent should cease if the house should be casually destroyed by fire. The lease was executed without being read by the complainants; the agent being about to leave his office at the time they called to execute the same. And the mistake was not discovered, by either party, until, after the house was casually burned, in December, 1827. After the house was burned, Gates offered to pay ihe defendant the rent, up to January, 1828, and to surrender the lease. The defendant, however, refused to accept the surrender, and subsequently brought a suit at law, for the recovery of the rent for the whole term.

      January 28.

      tf» C, Bronson, for the complainants.

      J. JL Spencer, for the defendant.
   The Chancellor.

.It appears to be a principle of natural law, that a tenant who rents a house or other tenement for a_, short period, and with a view to no other benefit except that > which may be derived from its actual use, should not be compelled to pay rent any longer than the tenement is capable of being used. By the law of Scotland, upon the hire of property, a loss or injury to such property, which is not caused by the fault or negligence of the hirer, falls on the owner. And the lessee is entitled to an abatement of the rent, proportioned to any partial destruction of the subject. (1 Bell’s Com. 452.) The Napoleon code also declares, that if the thing hired is destroyed by fortuitous events, during the continuance of the lease, the contract of hiring is rescinded; but if it be only destroyed in part, the lessee may, according to circumstances, demand either a diminution of the price or the rescinding of the lease itself. (Code Nap. Art. 1722.) And the same provision, substantially, is found in the civil code of Louisianna. (Art. 2667.) The learned commentator; on the law of nature and of nations, also considers this a plain principle of natural law. And he refers to a law of Sesostris, an Egyptian king, that if the violence of the river should wash away a part of the land, the tenant should be proportionably abated in his.rent. (Puff. Book 5, ch. 6, § 2.) The same principle has also found its way as far north as Newfoundland; where, by the custom of that country, the tenant of a building may surrender his lease and be excused from the further payment of rent, in case of a casual destruction of the building by fire. (See Broom v. Preston, Sel. Ca. S. C. Newf. 491.) And Rutherford, in his lectures on natural law, makes a very sensible distinction between a casualty which destroys the value of the use of the property, which loss naturally falls on the lessee, and one which destroys the property itself, of which the lessee has hired the use. In which latter case he holds that the lessee is excused from the payment of further rent. (Ruth. Inst. 127.) The cases of Harrison v. North, (1 Ch. Cas. 83,) Brown v. Quilter, (Ambler, 619,) Campden v. Morton, before Lord Northington, (Serg. Hill’s M. S.) and Steel v. Wright, before Lord Apsley, in 1773, (1 Term Rep. 708, note,) also show that some of the English chancellors struggled hard to introduce this principle of natural law into the administration of justice,in their courts. A contrary principle,.however, finally prevailed in the equity courts of England, as well as in the courts of law. And it must now be considered as settled, both -in England and in this state, that a lessee of premises which are burned, has no relief against an express covenant to pay the rent, either at law or in equity; unless he has protected himself by a stipulation in the lease, or the landlord has covenanted to rebuild. (3 Kent’s Com. 466.) Although the law - is thus settled,.! have, however, thought proper to refer-to : the opinions of these distinguished judges and civilians, and to the laws of other countries, for the purpose of showing that the defendant in this case has no natural equity, to entitlehim to rent for these premises, after the destruction of the buildVjngswbich constituted their only value to the lessees. And if the lessees did not in fact make an agreement to pay the rent, in the event which has occurred, that they are entitled to relief. •

It is established, beyond all question, that diere was an express agreement, between the lessee and the agent of Green, thatlEe rent should cease_ if the building should be casually destroyed by fire; and that a covenant or stipulation to that effect should be inserted in the lease. The answer of the defendant, setting up a specific agreement as having been entered into between himself and Gates at the time he called upon him as to the repairs, is not responsive to the bill; and is not supported by the proofs in the cause. Indeed, it is hardly consistent with the defendant’s own letters, to suppose any valid or binding agreement was made, or was intended to be made by either party at that time. It was at most a mere proposition for an agreement, which was in fieri until the final consummation thereof with the defendant’s agent, when he undertook to prepare the lease. Until that time, Colvin was certainly not a party to any agreement. He cannot, therefore, be bound by any other agreement than that which he supposed was contained in the written lease when he executed the same. He certainly was not aware of any want of authority in the agent to make such a lease; and he was expressly informed that the lease contained a stipulation which would exempt him from liability for the rent, in the event which has happened. If the agent exceeded his powers, and made an agreement which he was not authorized to make, the principal must either repudiate the lease altogether, or he must consider himself bound by the stipulations, in the favor of the other party, which should have been contained therein. The lessor cannot be permitted to affirm so much of the agreement as was for his own benefit, and to disaffirm so much as provided for the protection of the rights of the other parties. It is hardly probable that Gates would have entered into such a covenant as was contained in the lease to Cossit; which would not only have rendered him and his surety liable for the rent in case of the loss of the building by fire, but would also in that case have compelled them to rebuild the house at their own expense. For the exception which is contained in the covenant to repair in this lease, is not found in the lease to Cossit. And it is evident, from the testimony, that Colvin would not, knowingly, have entered into an agreement which would have rendered him liable to that extent.

The vice chancellor was wrong in supposing these complainants were bound in equity to perform an agreement which they never made, or intended to make, because Strong had exceeded his authority in accepting a surrender of the former lease to Cossit. If that act was unauthorized, the defendant must seek his remedy, if he has any, against Cossit and his surety, under the covenants in the original lease, or against the agent who has received a surrender of that lease improperly. Bu t if he elects to ratify the act of his agent as to this lease, he must ratify it fully; and must make the written agreement what it was supposed to be by the complainants, and his agent, when they executed the same.

The decree of the vice chancellor must be reversed; and the lease must be delivered up and cancelled. Green must be perpetually enjoined from prosecuting any suit or proceedings for the collection of the rents which have accrued subsequent to the burning of the house. And as he has been carrying on an unjust and inequitable controversy with these complainants, after he had full knowledge of their equitable ¡ rights, and after they had offered him more than he had any 1 just right to claim, he must pay to the complainants their costs in this suit.


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    Stafford vs. Brown and others.
    In a proceeding as for a contempt, against a party to the suit, to compel the1 appearance or answer of a defendant, or to enforce the performance of a decree or order, the affidavits and other proceedings, as weH after as before the order for an attachment, are properly entitled in the original cause.
    In proceedings as for contempts against witnesses, or others who are not parties to the suit, the affidavits and papers, previous to and including the ' order for attachment, should be entitled in the original cause, and all subsequent proceedings should be in the name of the people, on the relation of the party prosecuting the attachment.
    In prosecutions for criminal contempts, all proceedings subsequent to the order for an attachment, or to show cause, including such order, should be in the name of the people.
    If the complainant makes oath that a discovery from the defendant is necessary, he is entitled to an order that the defendant answer the bill or be attached ; and the court will not, in that stage of the suit, inquire whether a discovery is necessary. But if the complainant abuses the power to compel an answer from the defendant under the 24th rule, the court will take it into consideration in deciding the question as to the general costs of the cause.
    The order that the defendant answer in forty days or that he be attached, should be served on his solicitor, where he has appeared by a solicitor; and it is not necessary that it shouldbe served on the defendant personally.
    If an attachment which is returnable on a particular day, is not received by the sheriff in time to serve it, and to bring the defendant before the court, at the place where it is to be held on the return day, he should not arrest the defendant on the attachment, but should return it tarde.

    Where the sheriff neglected to serve an attachment until it was too late for the defendant to appear at the time and place where it was returnable, the court set aside the arrest of the defendant on the attachment
    January 28.
    This was an application on the part of Nehemiah Brown, to set aside the order for an attachment against him for not answering the complainant’s supplemental bill, and that the costs paid to the officer who served the attachment might be "■refunded. It appeared by the affidavits in the cause, that afe ter this defendant had appeared to the supplemental hill, by his solicitor, the complainant, upon the filing of an affidavit that <a discovery was necessary from him, obtained an order, of ■course, under the 24th rule of this court, requiring him to put in his answer to the supplemental bill in forty days, after service of a copy of the bill and notice of the order, or that an attachment issue. The copy of the bill and notice of the order, were served on the solicitor of the defendant N. Brown, and the usual time having elapsed, an order for an attachment was entered, upon an affidavit shoxving the default. An attachment was taken out and enclosed in a letter to the sheriff Of Oneida, with directions to execute the same immediately, unless N. Brown would consent to answer the bill, and should send to the complainant’s solicitor a stipulation to that effect, and should pay the costs, a bill of which xvas annexed to the letter. The sheriff arrested N. Brown on the return day ■of the attachment, who, upon such arrest, stipulated to answer the bill, and paid the bill of costs, to the sheriff, A preliminary objection was raised on the part of the complainant, that the affidavits, on which the motion was founded, were entitled in the suit, and not in the matter of the attachment

      J. Lansing, for the complainant.

      ■J. Jl. Spencer, for the defendant.
   The Chancellor.

The preliminary objection of the «complainant as to the entitling of the papers is not well taken. In proceedings against parties to the suit, in the ordinary progress of the cause, as to compel the appearance or answer of a defendant, or to enforce the performance of a decree or order of the court, the practice in England appears to be to entitle the affidavits petitions and orders in the cause, as well after as before the order for an attachment has been entered. (See 2 Newland’s Ch. Prac., 3 Lond. ed. 329. 2 Grant’s Pr. 46, 219, 239.) This, also, is the most convenient and proper practice in such cases. And where an order, in such a case, is not entitled in the cause, it should always show on its face at whose instance or for whose benefit it was made; so that the adverse party may know who are the proper persons to be made parties to an appeal from such order. In proceedings as for contempts, against witnesses and others who are not parties to the suit, the practice of the courts of common law appears to be the most appropriate. That is, to entitle the order for the attachment in the cause, and to entitle all subsequent proceedings on such order in the name of the people, on the relation of the person who is prosecuting the attachment against the defendant therein, or the party proceeded against. (See Folger v. Hoogland, 5 John. Rep. 235.) In proceedings for contempts which are strictly criminal, all the proceedings after the granting of the attachment, or order to show cause, and including the order, should be in the name of the people. As there has been no uniform practice in this court as to the entitling of orders and proceedings to enforce the rights or remedies of parties to the cause, as between themselves, it cannot be irregular to entitle them either way.

There is no validity in the objection, that the order for the defendant to answer, or that he be attached, was served on his solicitor in the cause. Such is the unifoim practice of the court in such cases. It is also in conformity with the provisions of the statute. (2 R. S. 180, § 77.)

The defendant’s solicitor is incorrect in supposing that this court will inquire whether a discovery from a defendant in the cause is absolutely necessary, upon an application to set aside the usual order, that the defendant answer the complainant’s bill or be attached. To enable the court to do this, it might, in many cases, be necessary to prejudge the whole merits of the cause. By the English practice, the process of contempt was the ordinary means of compelling an answer, or of obtaining a decree taking the bill as confessed. The 24th rule of this court, however, has limited the right of the complainant, to require an answer in all cases, by making it necessary for him to file an affidavit that a discovery is necessary, before he can have an order that the defendant answer or be attached. But if such affidavit is filed, the order is regular ; and the court will not, in that stage of the suit, inquire Whether it would not have been equally beneficial to the complainant if the defendant had suffered the bill to be taken as confessed. If the complainant is guilty of an abuse of this power to compel an answer, and subjects a defendant to useless expense, the court will take that matter into consideration, upon the hearing, in disposing of the question as to the general costs of the cause.

It was improper for the deputy sheriff, who served the attachment, to delay the service thereof, until it was too late to bring the defendant into court on the return day. If the process was not received in time to enable him to comply with the exigency thereof, he should not have arrested the defendant thereon, but should have returned it tarde. The defendant was not bound to give security for his appearance at the return day of the attachment, when a compliance with the condition of the bond would have been impossible. The arrest of the defendant on the attachment must therefore be set aside; and the sheriff must refund to him the amount received for costs at the time of such arrest. But as the complainant’s proceedings have been regular, as to the entering of the order and the issuing of the attachment, the motion to set aside these proceedings must be denied. The defendant must pay the costs of the former proceedings, upon his default in not answering, which accrued previous to his arrest by the sheriff after such costs shall have been taxed by the proper officer. And he must put in his answer to the supplemental bill, within twenty days after the service of the order to be entered on this decision, or the complainant may take out a new attachment.

The defendant, Nehemiah Brown, must also pay to the solicitor for the complainant, his costs of opposing this application, to be taxed at a sum not exceeding ten dollars.


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    A. C. & W. A. Smets vs. Williams.
    In a suit concerning property, if it appears upon the face of the complainant^' bill that the matter in dispute, exclusive of costs, does not exceed $100, the defendant may either demur, or move to dismiss the bill with costs.
    Where the matter in dispute does not exceed one hundred dollars, if that fact does not appear upon the face of the bill, it may be pleaded, in bar of the suit.
    The jurisdiction of the court does not depend upon the amount which may ultimately be found due to the complainant; but upon the claim actually made by him.
    Where the claim, as made by the complainant, exceeds $100, but upon the hearing it turns out that he is actually entitled to less than that amount, the court may make a decree in his favor for what is due; but in such case, he will not be entitled to costs, and he may be charged with costs, in the discretion of the court.
    Upon a judgment creditor’s bill, the amount of the complainant’s judgment, and the amount of the defendant’s property as claimed by the complainant, should each exceed $100, to constitute a matter in dispute, of which the court of chancery will take cognizance.
    Where a judgment creditor’s bill contains merely a general allegation as to the value of the defendant’s property, and by the result of the litigation it appears that the defendant has no property which can be reached and applied towards the payment of the complainant’s judgment, the bill will be dismissed with costs.
    January 28.
    Tars was a creditor’s bill to obtain a discovery and satisfaction of a judgment in the supreme court, against the defendant, for about $700. The complainants, by their bill, after setting out their judgment and the return of the execution thereon unsatisfied, charged generally, that they had been informed and believed that the defendant had property, things in action, or equitable interests belonging to him of the value of $100 and more. They, therefore, prayed for an injunction and receiver; and that the proceeds of such property, things in action, and equitable interests, might be applied to the payment of the judgment debt.
    The defendant, by his answer, admitted the recovery of the judgment, and the return of the execution unsatisfied, and - that the judgment was still due. He admitted also that he had debts due to him of the value of $25, and that he had $3 in cash. But he denied that he had any other property, things in action, or equitable interests, except his necessary wearing apparel. The cause was heard on bill and answer.

      J. Rhoades, for the complainants.

      A. Taler, for the defendant.
   The Chancellor.

The principal question between the parties in this cause is a question of costs. By the thirty-seventh section of the article of the revised statutes which relates to the general powers, duties, and jurisdiction of this court, (2 R. S. 173,) the court of chancery is directed to dismiss every suit concerning property, where the matter in dispute, exclusive of costs, does not exceed the value of $100, with costs to the defendant. On the part of the complainants, it is contended that the jmatter in dispute in the present case, with reference to this provision of the revised statutes, is the amount due on the judgment. But the defendant’s counsel insists that the matter in dispute is the property, things in action and equitable interests of the defendant, which this court may reach, or direct to be applied in satisfaction of the judgment; and, as the value of such property and effects, as admitted by the answer, does not exceed $100, that the defendant has a right to a decree, dismissing the complainant’s bill with costs.

Previous to the revised statutes, this court would not take cognizance of a suit in chancery, for relief concerning property, where the value of the matter in controversy was less than ten pounds sterling, exclusive of the costs of such suit. If it appeared upon the face of the complainant’s bill that the amount in controversy was beneath the dignity of the court, the defendant might either demur or move to dismiss the bill. (Creagh v. Nugent, Mosely's Rep. 356. Mitchell v. Tighe, Hopk. Rep. 119.) And if that fact did not appear upon the bill itself, it might undoubtedly have been pleaded in bar of the relief here; as the court would dismiss the bill in any stage of the suit if it appeared that the value of the matter in controversy was too small to enable the complainant to claim the aid of this court. (Fullerton v. Jackson, 5 John. Ch. Rep. 276.) The provision in the revised statutes on this subject, was only ititended to increase the amount, or value of matters in controversy, of which this court should take cognizance, from ten pounds sterling, to a sum which should exceed one hundred dollars. The principles, therefore, upon which the court formerly proceeded in relation to this smaller sum must now be applied to the increased amount, in the value of the matter in dispute, which is necessary to enable the complainant to claim relief in this court.

The question then arises, what is the matter in dispute Between the parties in these creditors’ bills, in reference to this statutory provision, and the former practice of the court 1 It is evident that the existence of the judgment and the amount due thereon at the time of filing the complainants’ bill, as well as the nature, extent and value of the defendant’s property and effects, which the bill seeks to reach and have applied to the payment of that judgment, may become subjects of dispute and litigation in the progress of the cause. The decision of the court, however, as to the dismissal of the bill under this provision, does not depend upon what is actually disputed by the defendant; nor does it depend upon the final adjudication of the court as to what the complainant has a right to recover. But it must depend upon the nature and value of the claim which is actually made by the complainant. If the amount claimed by the bill to be due on the judgment is less than the amount prescribed in the statute, or if the value of the property or effects of the defendant, as claimed by the complainant, does not exceed $100, this court will not take jurisdiction of the case. For this reason, the rule of this court has required the complainant to state in his bill the true sum which is actually and equitably due on the judgment, as well as the fact that the defendant has property or effects to the value of more than one hundred dollars, which ought to be applied in satisfaction of such judgment; as the debt of the complainant and the property or effects of the defendant were both necessary to constitute a matter in dispute or litigation, of which the court of chancery^would take cognizance. And to prevent the complainant from making a claim, either as to the amount due on the judgment, or as to the value of the defendant’s property, which he does not believe to be just, another rule has required the bill to be verified by oath. In this case, therefore, the extent of the claim of the complainants to equitable relief, and which was the matter in dispute between these parties at the commencement of the present suit, did exceed one hundred dollars ; and the defendant is not entitled to have the bill dismissed with costs, as a matter of right, under this statutory provision. It does not follow, however, that the defendant is to pay costs in a case where it turns out that his property and effects are less than $100; or that the complainant is to be excused from paying costs, as a matter of course, in such a case. This court has already decided that where the bill contains merely a general allegation as to the property and effects of the defendant, as in the present case, without pointing out any specific property in the hands of the debtor or his trustees as the subject of the litigation, the bill should be dismissed with costs, if, by the result of the litigation, it appears that the defendant had no property which could be reached and applied to the satisfaction of the complainant’s judgment. The result as to the defendant’s costs might be different, however, if specific property, things in action, or equitable interests were pointed out by the bill as belonging to the defendant, and it should appear, from the admissions in the answer or by the proofs in the cause, that the complainants had good reasons for believing such property and effects were properly applicable to the payment of his judgment.

In the circuit court of the United States, which, in a certain class of cases, has jurisdiction only when the matter in dispute, exclusive of costs, exceeds the sum of $500, it has been held that the question of jurisdiction depends upon the amount claimed by the plaintiff; and that if he makes such a claim, he may have a judgment or decree in his favor, although it turns out that the amount which he had a right to claim was less than $500, exclusive of costs. In those cases, however, the plaintiff is not allowed to recover costs against the defendant; but, on the contrary, the plaintiff may be compelled to pay costs, in the discretion of the court. This is a very reasonable and proper rule to be adopted by this court in similar cases, where the question of costs is discretionary. I shall therefore follow it in the case now under consideration.

There is nothing in the facts, as they appear in this bill and answer, to induce me to believe that the complainants had any rational and sufficient ground for believing that the defendant was concealing his property ; or that he had the means of paying any considerable part of their judgment. This was therefore a mere fishing bill; and as they have not succeeded in catching any thing of the value of $100 and upwards, they must pay the costs to which they have subjected the defendant. They are entitled to a decree, however, for the small amount of property discovered; to be applied in part satisfaction of their judgment, unless they shall prefer to have their bill dismissed, without prejudice to their future rights. This latter course will probably be most for their interest ; as the value of the effects admitted by the answer will hardly be sufficient to compensate them for the additional costs to which they will be subjected in obtaining them.


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    Smith vs. Clark & Smith.
    The defendant is bound to answer the charging part as well as the stating part of the bill; and his answer to the charging part, if responsive thereto, is evidence in his own favor, if an answer on oath has not been waived by the complainant.
    In a sworn bill, it is equally perjury for the complainant knowingly to make a false charge or averment in the charging part, as to make a false statement in the stating part of the bill.
    January 28.
    This" case came before the chancellor on appeal. ¡/The facts of the case, so far as they are necessary to the understanding of the decision, are stated in the former report of the case referred to in the opinion of the chancellor, and in the opinion of the vice chancellor, which follows :
    Gardiner, Y. C. By a recent decision in one of the suits mentioned in the pleadings in this cause, the supreme court have given a construction to the bond of Ambrose Smith, and determine that the $500 mentioned in the condition are to be -considered as liquidated damages. That construction will be adopted here. And I am relieved from an inquiry which, under the evidence here furnished, promised to be sufficiently embarrassing. The suit at law by the complainant against Ambrose Smith, upon the bond given by the latter, was commenced in October, 1827» The premises mentioned in the bill were advertised for sale on the 20th November, 1828, in pursuance of a power for that purpose, im the mortgage executed by James Smith to A. Smith, by Clark, the assignee of A. Smith. This bill was filed in the equity court of this circuit, in November, 1828, for an injunction to restrain the sale, and to compel a set off of the damages accruing from the breach of the bond above -mentioned. Since the filing of the bill, the complainant has obtained a verdict against A. Smith for $1000, for practicing two months as a physician, contrary to the condition of his bond, and a judgment upon that verdict. In the charging part of the bill, it is alleged that the defendants pretend that, inasmuch as Clark is a bona fide and innocent assignee of the bond and mortgage, the complainant cannot set off his demand. And the bill then charges that said Clark is not a bona fide assignee of said bond -and mortgage, for a full and valuable consideration ; but, on ihe contrary, that when he received the assignment, if in truth It was ever made, he knew, or had reason to know, of the claim of the complainant against A. Smith which ought to be set off. It appears'also from the bill and proofs that the bond of A. Smith was executed on the 12th of April, 1827. The defendants, in their answer, say that Clark purchased the mortgaged premises of one Boss, for A. Smith, in the year 1825, and paid $100, which was charged to A. Smith in April; that to secure this sum and other demands of Clark against him, A» Smith afterwards, in the year 1827, executed a bond and warrant of attorney to Clark for $1200, and judgment was docketed in Monroe common pleas on the 21st of March, 1827; that subsequent to the execution of the bond by A. Smith, he applied to Clark to make some arrangement to release the lien of his judgment on the premises; and that Clark, before- the giving of the deed to J. Smith, did discharge said judgment, and wrote to said complainant to that effect— and this upon the express agreement and understanding that A. Smith would and should assign to Clark the bond and mortgage he was to receive from the complainant, as security in lieu of said judgment. That on the 5th of July, 1827, the day of the execution of said bond and mortgage, in pursuance of the agreement so to do, A. Smith transferred and handed over the bond to- Clark, and left the mortgage at the Clerk’s office, as the property of Clark, to be recorded. That the 'bond has ever since been in- Clark’s possession, and the mortgage under his control. That the formal written assignment was not executed until the 18th of January, 1828, at which time they had a settlement, and found-the balance due Clark $'484, which was honestly and jusly due on the original consideration for which the judgment was given, and which is now due to Clark, with interest; and that the bond and mortgage is all the security that Clark has-since the discharge of judgment. And Clark denies all knowledge of any set off, or- of any claim of set off, at the time of the transfer to him.
    I entertain no doubt that the material facts above stated from the answer are responsive to the bill. The substance of the complainant’s allegation is, that Clark claims or pretends to be a bona fide assignee; and the averment is, that he is not a bona fide and innocent assignee for a full and valuable consideration. In answer to the averment, the defendants were bound to disclose the fact of an assignment, and the nature and extent of the consideration. Both of these, together with a denial of notice, were necessary to establish for Clark the character of a bona fide assignee—the very proposition denied by the bill. The defendants were bound to confess or traverse the substance of this charge, particularly and precisely ; (1 Harrison, 222; 1 John. R. 107;) and this they have done. By the answer, then, it appears that the judgment of Clark was docketed on the 21st of March, 1827. The bond of A. Smith was executed on the 12th of April following. Subsequent to this, and before the execution of the deed and bond and mortgage, Clark agreed with A. Smith to discharge the lien of his judgment, upon the express condition that the bond and mortgage should be assigned to him in lieu of it-. On the 4th of July, 1827, Clark wrote to the complainant that he would discharge his judgment in a few days, and on the 5th of July the writings were executed, the bond delivered to Clark the same day, and the mortgage for his benefit left to be recorded. These facts are decisive of the present case. By the agreement to assign, the equitable interest in the bond and mortgage vested in Clark, at the moment of their execution, A. Smith received them as the trustee of Clark, as a substituted security in lieu of the judgment; and the lien of the judgment Was prior to the execution of the bond to J. Smith. Clark, in this view of the case, had the prior equity, and the legal interest was vested in him by delivery of the mortgage on the 5th of July, the day of its execution. (1 Paige’s Rep. 78.) If the equities of the complainant and Clark are considered as attaching at the time of the execution of the mortgage, the most that can be urged is, that they are equal, and in that case the legal right must prevail. (1 Paige’s Rep. 135.)
    It was objected that there was no proof of the judgment. The answer stated the relinquishment of a judgment, upon which $484was due, which constituted the consideration of the assignment; and this is considered to be responsive to the bilk In addition to this, even if the certificate of the clerk and the testimony of Jewett should be rejected, I think the complainant is estopped by the letter of Clark, which he has made an exhibit, from contesting the prior lien of the judgment. In truth, however, the right of the complainant to his set off could only accrue upon the breach of the bond restraining the practice. (See the Chancellor’s opinion in this cflse.) The obvious construction of that instrument Would seem to be, that the defendant must practice an entire month to entitle the complainant to the $500 liquidated damages. And I understand his counsel to concede that there could be no apportionment of those damages for any less period. There is no proof that the defendant Smith practiced as a physician, &c. for that length of time previous to the 5th of July, 1827. The judgment record does not establish this fact. From that it appears that the plaintiff claimed for six months practice, commencing upon the 12th of April. The jury, by their verdiet, found for two months only, within that period, leaving the precise time indefinite. From the answer, and the testimony of the partner of A. Smith, it appears that the Iatter cannot be charged with more than 18 or 20 days practice in all, previous to the 5th of July. There was consequently no breach which would entitle the complainant to any set off until after the assignment to Clark. In this view, also, Clark would have the prior equity. I do not deem it necessary to discuss the question of notice. If no notice whatever had been given by Clark, under the circumstances of this case, his right would not be affected. Notice was in fact given to the complainant, in March, 1828, and before any payment fell due upon the mortgage. And it no where appears that intermediate the time of the assignment and the giving of the notice, there Was a payment or dealing, upon the part of the complainant with the mortgagee, upon the faith that the latter was the owner of the mortgage.
    I am of opinion, therefore, that Clark is entitled to the benefit of the mortgage security, to the extent of the judgment lien which he surrendered. The sum due upon the judgment was $484, and that sum only has he a right to retain from the mortgage money.
    S. Boughton, for the complainant,
    cited 1 Hov. Ch. Prac. 86; Beames, 3, 4, 5, 6 ; Mitford, 35 ; Lady Ormond v. Hutchinson, (13 Ves. 53;) 7 Ves. 588 ; Green & Johnson v. Hart, (1 John. Rep. 580 ;) Beckwith v. Butler, (1 Wash. Rep. 224;) Hart v. Ten Eyck, (2 John. Ch. R. 92, note;) Payne v. Charles, (1 Munf. R. 373;) Dunham v. Jackson, (6 Wendell, 22;) 1 Paige’s Rep. 34; Rosevelt v. Bank of Niagara, (1 Hopk. 584.)

      C. M. Lee, for the defendants.
   The Chancellor.

This is an appeal from the final decree of the vice chancellor of the eighth circuit, in the same cause which was formerly before me, on appeal from the equity court of that circuit, to reverse an order in relation to the injunction. (1 Paige’s Rep. 391.) The case is substantially the same as it then appeared on the bill and answer. And upon a careful examination of the case, and the voluminous briefs of the counsel for the respective parties, I see no reason to change the opinion I then entertained. The error into which the plaintiff’s counsel appears to have fallen, is in supposing that an answer responsive to the charging part of the bill is not evidence, in favor of the defendants. The charging part of a bill is as necessary to be answered as the stating part. So far as the charges are material to anticipate and defeat a defence which may be set up by the defendant, they may be considered in the nature of a special replication. But the complainant has the same right to the defendants’ answer to the charging part of the bill, to prove the truth of his special replication, as he has to an answer to the stating part, to prove the truth of that. If he does not waive an answer on oath from the defendant, he makes him a witness in favor of the complainant, against himself, and interrogates him as to every statement and charge in the bill. His answer, therefore, which is responsive to any such statement, or charge, in whatever part of the bill it is contained, is evidence in his own favor as well as in favor of the complainant. I know it has been supposed by many that the charging part of a bill is mere form; and that they might therefore put any thing they pleased in that part, by way of charge, even in a sworn bill. It is frequently, however, as material a part of the bill as the stating part; and the decision of the cause frequently turns upon the issue formed by the denial of some averment in the charging part of the bill. It is therefore perjury for a complainant to make a false charge, or averment, in the charging part of a sworn bill, in the same manner as it would be for him to make a false statement in the stating part.

The answer, as to the assignment and the consideration thereof, being evidence in favor of the defendants, the prior equity of Clark, to the extent of his debt, is undoubted; and as the complainant claims a mere equitable right of set off, which accrued after the defendant Clark had an equitable right to the assignment, it is perfectly immaterial whether the complainant ever had notice of the assignment, or of Clark’s equity or not. If he had paid the bond and mortgage, to the original bolder, or bad discharged any security which he held against him, under an actual agreement for a set off, and without notice, it would have been a very different case from that which is now presented. I have no doubt as to the correctness of the vice chancellor’s decision upon the equity of this case. / He was also right as to the costs. If the complainant wished to exempt himself from costs, and to put the defendants in the wrong, he should have offered to pay the amount justly due to Clark, and have requested him to re-assign the mortgage to Ambrose Smith, so that a set off between him and the complainant could be made. It is a general rule that a mortgagor who comes into this court and is permitted to redeem, must pay the costs of the adverse party.

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


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    Brooks vs. Gibbons and others.
    A speaking demurrer is one which introduces some new fact or averment, which is necessary to support the demurrer, and which does not appear distinctly upon the face of the bill.
    Where a bill has been filed against the executors or administrators and the devisees or heirs of a deceased debtor, by one of the creditors, in behalf of himself and others, who may elect to come in under the decree, and a general decree for an account and payment of the debts and legacies or debts of the testator or intestate has been obtained, a separate creditor or legated cannot file a new bill for the same purposie, except he could not come in under such decree, or where he is entitled to more extended relief than he could have obtained in the former suit; in which cases he may file a new bill as supplementary to the former suit.
    A creditor, upon a proper case being shown by petition, may be permitted to come in and prove his debt,- under a decree, at any time while the fund or any part thereof is under the control of the court, notwithstanding the time limited, by the master, for the creditors to come in and prove their debts has expired.
    January 28.
    This was a suit against the executrix and devisees of James Gibbons,"deceased, in behalf of the complainant and all other creditors, for an account of the estate, and for the satisfaction of their debts out of the same. The claim of tlie complainant upon the estate was for the amount of a note made by J. V. N. Yates to James Gibbons, in his life time, and endorsed by him to the complainant. It appeared from the bill that a similar suit had been commenced against the defendants, by other creditors, in which the usual decree had been made in favor of the complainants in that suit; and also for the benefit of all other creditors of James Gibbons who might choose to come in under the decree. But the complainant in the present suit alleged that he had no knowledge of the proceedings in the former suit, until after the expiration of the time limited by the master for the creditors to come in and prove their debts; and that he was then advised that he could not come in and prove his debt, under that decree. He therefore prayed for an account of the real and personal estate of the testator, and for the payment of his debt, and also the debts of all other creditors of the estate, out of the same. The defendants put in a general demurrer to the whole bill and they stated, as grounds of demurrer, several matters appearing upon the face of the bill.

      J.JVing, for the complainants.

      J. Edwards, for the defendants.
   The Chancellor.

The objection that this is a speaking demurrer, is not well taken. A speaking demurrer is one which introduces some new fact, or averment, which is necessary to support the demurrer, and which does not appear distinctly upon the face of the bill. The case of Edsell v. Buchanan, as reported by Vesey, (2 Ves. jun. 83,) has frequently been misunderstood. The demurrer in that case was not overruled as a speaking demurrer, merely on account of a modest suggestion, that the time stated by the complainant, “ about the year 1770,” was upwards of twenty years before the filing of the bill. But it was because that suggestion, from the manner in which it was introduced into the demurrer, was in the nature of an averment that the defendant had been in possession of the mortgaged premises for more than twenty years. And the fact of such possession was necessary to sustain the defence set up on the argument of the demurrer\ which defence was, that the complainants’ right to redeem was barred by the lapse of time. The precise time, at which the defendant’s possession commenced, not appearing from the bill itself, the averment that the heir of the mortgagee had been in possession “ upwards of twenty years before the bill filed,” should have been brought forward by plea, or answer, and not by demurrer. (See 4 Bro. C. C. 256, S. C.; Davies v. Williams, 1 Sim. Rep. 7; and Brownsword v. Edwards, 2 Ves. sen. 245.)

The complainant states the making of the note, and the endorsement thereof to him by James Gibbons. It was not necessary, therefore, to set out the consideration of snch endorsement, as the fact of endorsing the note to him implies a •consideration, as between endorser and endorsee. If the note came into the complainant’s hands under special circumstances, which would render it inequitable for him to collect it against James Gibbons, or his representatives, those circumstances should be stated' by plea or answer. From • the allegation that it was endorsed by J. Gibbons to the complainant, I must infer that he received it before it became due; as Gibbons died several months previous to that time. There is, however, one defect, in stating the complainant’s title to recover the amount of this note from the estate of Gibbons, which was not adverted to on the argument of the demurrer. And that is, the allegation in the bill, that notice was given to Gibbons himself, not to his representatives, several months after his death. It is stated in the bill that the testator died in February; and notice of the non-payment was given to him in June following, when the note became due. As this statement in the bill has doubtless been put in this form through mere inadvertence, if the case turned on this question, the complainant would be permitted to amend.

I think, however, the last ground of demurrer is well taken ; arid that goes to| the merits. It has'now become the settled law of this court, that where a bill has been filed against the executors, administrators, devisees, or heirs of a deceased debtor, by one of the creditors in behalf of himself and all others who may elect to come in under the decree, and where a general decree for an account, and payment of the debts and "legacies of the testator or intestate, has been made in such suit, under which all may come in and prove their debts, this court will not permit a separate creditor, or legatee, to institute new proceedings, either at law or in equity, against the representatives of the decedent The only exceptions to this ■rule are, where the complainant in the new suit shows that he could not come in under the former decree, or that he is entitled to more extensive relief than he could have obtained in that suit; in which cases, he is sometimes permitted to file a new bill, as supplementary to the former -suit (See Shepherd v, Towgood, Turner Russ. Rep. 379.) And where a creditor files a bill in this court, from which it appears that a decree has been already made for his benefit, in another suit, under which his title to relief can be enforced, it is good ground of demurrer to such bill, that there are no equitable grounds for instituting such new suit. (See Neve v. Weston, 3 Atk. Rep. 557.) The fact that the time limited by the master for the creditors to come in and prove their debts has expired, affords no reasonable ground for charging the estate with the expenses of a new suit; as the creditor, upon a proper case made by petition, may be permitted to come in any time while the fund, or any part of it, is under the control of the court. (1 Newl. Pr. 3 Land. ed. 534.) In the present case, the bill shows that the proceedings in the former suit are not finally closed. It is not too late, therefore, for this complainant to come in, by petition, for leave ts prove his debt under that decree; or if it is, all the facts which are necessary to show the complainant could not obtain such relief, should have been distinctly stated in the bill. An averment that he is advised by counsel that it is too late, is not sufficient. He should have stated the facts in such a manner that the court could see he had no remedy, by petition, in the former suit. Whether a creditor can, in any case, institute an entirely new suit after a final decree in a former cause,under which he had a right to come in, is at least doubtful. I am inclined to think, however, that his remedy, in all such cases, is to proceed in the former suit, by petition for relief, upon the foot of that decree; or by an application to the court, for leave to file an original bill, in the nature of a supplemental bill, to have the benefit of the former proceedings, and for a further- sale of the property, if necessary, for the payment of his debts. It would certainly be unreasonable and inequitable to permit the representatives of a deceased debtor to be harassed by new suits, after a final settlement of the estate upon a decree for the benefit of all the creditors; except under very special circumstances.

The demurrer in this case must therefore be allowed. And the hill is dismissed, with costs; but without prejudice to the right of the complainant to apply to the court, by petition, for leave to prove his debt under the decree in the former suit, or for leave to file a supplemental bill, or an original bill in the nature of a supplemental bill, as he may be advised.


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    M’Credie vs. E. & R. Senior.
    Where a partner is enjoined, in general terms, from intermeddling with the property and effects of the firm, it is not a breach of the injunction for him to give a confession of judgment, for a debt bona fide due to a creditor of the firm, for the purpose of enabling such creditor to obtain a preference in payment, by levying upon the partnership effects.
    No appeal lies from a mere initiatory order, as for an attachment to bring a party into court to answer for an alleged contempt; but if the order for an attachment contains a final determination, or adjudication, that the defend» ant is in contempt, he may appeal therefrom.
    Where there are conflicting affidavits in relation to the alleged contempt, an attachment may be issued to bring the defendant into court, so that he may he examined on interrogatories as to the contempt, and to enable the complainant to compel the attendance of witnesses to prove the facts.
    The order for an attachment, to bring the defendant into court to answer for a contempt, should not contain an adjudication of the court that he has been guilty of the contempt. It should merely direct the issuing of the attachment, or only declare, that it appears to the court there is probable cause for the issuing of an attachment, to bring the defendant before the court to answer as to the alleged contempt.
    Upon an order for the defendant to show cause why he should not be punished for an alleged contempt, if he appears and denies the contempt, the proceedings must be, substantially, the same as upon the return of an attachment against him.
    January 28.
    Appeal from an interlocutory order of the vice chancellor of tire first circuit. The bill filed in this cause alleged that the complainant and the defendants were partners in trade in the city of New-York; the business being carried on, ostensibly, by the complainant and E. Senior, and R. Senior being a secret partner. The complainant further alleged that the defendants had violated the partnership agreement by secretly removing a part of the effects of the firm from the store, and applying them to some private pecuniary transactions between themselves. He therefore prayed for a dissolution of the co-partnership, and for an account of the partnership dealings and concerns; that a receiver might be appointed; and that an injunction might issue to restrain the defendants from removing any part of the property of the firm from the store occupied by the copartners, and from receiving or collecting the partnership debts. On the 8th of September, 1832, upon the filing of the bill, the vice chancellor made an order for the defendants to show cause, on the 17th of the same month, why an injunction should not be granted according to the prayer of the bill; and that in the mean time the defendants should be restrained and enjoined from intermeddling with the property and effects of the firm. A copy of this order was served on the defendants on the same day. On the tenth of the same month, the defendant, R. Senior, who denied that he was a partner or had any interest in the firm, acting as the agent of H. Glazebrook, of Glasgow, a creditor of the copartnership, employed an attorney to commence a suit against M’Credie and E. Senior, in the name of Glazebrook, to recover his debt. A suit was immediately commenced, by serving a declaration, under the statute. And the defendant, E. Senior, upon whom the declaration was served, employed an attorney to appear and give a cognovit for both of the defendants in that suit. Upon this cognovit a judgment was entered up the same day; and an execution was taken out, and the same was levied upon the goods of the firm. Another suit was commenced against the same parties, on the same day, by Robert and Alexander Garrick, who also claimed to be creditors of the firm; and a judgment and execution were obtained in that suit in the same manner. The complainant applied to the vice chancellor for an attachment, against the defendants in the suit in this court, for a contempt. Upon hearing the parties, the vice chancellor made an order, declaring that the defendants had been and were guilty of a contempt of this court, in having disobeyed and violated the order made on the eighth of September, for a temporary injunction.' And he directed an attachment to issue, to bring the defendants before the court, to answer for such contempt. From this order the defendants appealed to the chancellor.

      Hugh Maxwell, for the complainant.

      D. B. Ogden <$• S. Jl. Foot, for the defendants.
   The Chancellor.

If the proceedings of the plaintiffs in the several judgments at law against M’Credie and E. Senior, were irregular and unauthorized, as against M’Credie, his proper remedy was by an application to the supreme court to set aside the judgments, and the executions yvhich had been issued thereon. And if the defendants in those judgments were the only members of the firm and the debts for which the judgments were confessed by E. Senior, for himself and his partner, wertójfertly due, this court will not inquire whether he was IegalbjsEuthorized to employ an attorney to appear and give cognovits in the name of both members of the firm. The order of this court only inhibited the defendants from intermeddling with the copartnership property and effects. It did not prohibit the defendant, Edward Senior, from giving a preference to any bona fide creditor of the firm, by the confession of a judgment to him in behalf of the firm; provided he was authorized to do so by the practice of the court in which the suit at law was pending. Neither did it restrain Richard Senior from acting as the agent of any creditor of the firm, in the prosecution .of a suit at law against the copartnership. Indeed the facts stated in the bill did not entitle the complainant to an injunction, to restrain the creditors of the firm from proceeding at law to collect their just debts; or to restrain any member of the firm from confessing a judgment to such creditors, so as to give them a preference in payment. Such a proceeding therefore was neither a violation of the letter or the spirit of the order of the 8th of September; although the creditors in whose favor the judgments were confessed were enabled thereby to levy upon the copartnership effects. But if the allegation of M’Credie is correct, that R. Senior was a partner, and that nothing was due to these creditors tom the complainant and E. Senior only, there is reason to believe the whole proceeding on the part of the two Seniors has been collusive, with a view to evade the injunction, and to elude the justice of this court. In such a case they may be punished for a contempt, in the same manner as if they had violated the letter, as well as the spirit of the injunction, or prohibitory order of the court.

As the parties were at issue, by their affidavits, as to the main facts upon which the question as to the violation of the injunction depended, it was a proper case for the issuing of process to bring the defendants before the court; so that the complainant could have the benefit of their examination upon interrogatories; and could also have compulsory process to compel the attendance of witnesses before the court, or a master, to prove the contempt, if any had been committed. But there was not sufficient evidence before the vice chancellor, on which to found an adjudication or final decision that the defendants had been and were guilty of a contempt. Besides, it is not the practice of the court, upon an application for an attachment, to make a final adjudication as to the guilt of the accused. The order, in such a case, should direct the issuing of an attachment, without any other adjudication; or should merely declare that it appears to the court that there is probable cause for issuing an attachment, that the defendant may be brought before the court to answer as to the alleged contempt. The statute has pointed out the mode of proceeding, to ascertain the guilt or innocence of the accused, upon the return of the attachment. (See 2 R. S. 537, § 19, 20.) Another mode of proceeding is by an order for the accused party to show cause why he should not be punished for the alleged contempt. In that case, upon the day appointed for showing cause, if the contempt X admitted, or no cause is shown why the accused should not be punished therefor, the court proceeds to award the punishment. But if the defendant appears, and denies the contempt, the ct-xrt proceeds substantiallj' in the same manner as on the return of an attachment. A reference may also be directed, in such cases, if necessary, to ascertain the facts. (2 R. S. 536, § 5.)

From a mere initiatory order, directing an attachment to issue for the purpose of bringing the accused before the court to answer interrogatories, no appeal lites; as the defendant is not injured until the court makes an order adjudging him to have been guilty of the contempt. (Buel v. Street, 9 John. R. 443.) And if this order had not contained an adjudication that the defendants had been guilty of a contempt, which adjudication the vice chancellor would have considered conclusive as to that fact upon the return of the attachment, I should have been disposed to dismiss this appeal. That part of the order being erroneous, it must be modified, by striking out the adjudication that the defendants have been guilty of the contempt, and substituting a declaration that it appears to the court that there is probable cause for issuing an attachment to bring the defendants into court, to answer and be examined on interrogatories relative to the alleged contempt.

Neither party is to have costs on this appeal; and the proceedings are to be remitted to the vice chancellor.


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    Franklin & Hunt vs. Keeler.
    Where several exceptions to an answer are allowed, by the master, and but one exception is taken to the report, embracing all the exceptions allowed, if any of those exceptions were well taken, the exception to the master’s report will be overruled.
    When impertinent matter, in an answer, which Should all have been embraced in one exception, is made the foundation of Several exceptions, to detached parts thereof, the court may refuse to give the costs of the reference to the complainant, although the major parf of his exceptions to the answer are finally allowed.
    Where exceptions for impertinence wo’^d mutilate the answer of the defendant unnecessarily, if allowed, by Keaking up sentences or clauses which ought to stand or fall together, the exceptions should be disallowed.
    If the whole of a sentence or clause in an answer is impertinent, and depends upon the same principle, the complainant cannot except to a part of the sentence only, where the allowance of such exception will wholly change the meaning <*f what remains, or make it unintelligible.

      This was an appeal from a decretal order of tie vice chancellor of the eighth circuit, overruling a single exception to the master’s report. The master allowed nine exceptions for impertinence. And the vice chancellor, being satisfitd that two at least of these exceptions were well, taken, overruled the exception to the master’s report, with costs ; bit he permitted the parts of the answer embraced by the othei exceptions to remain as a part of such answer. From this oidtr the defendant appealed.

      J. Rhoades, for the complainants.

      J).. Sampson, for the defendant.
   The Chancellor.

The vice chancellor was right ia overruling the exception to the master’s report, with costs, if any of the exceptions allowed by the master were well taken. But as these numerous exceptions to short detathed passages in the answer, were probably put in for the mere purpose of saving the costs of the reference if it should turn out that the exceptions for insufficiency were not well taken, I think he would have been justified in refusing costs to either party on the reference. Most of these exceptions should have been overruled by the master. Not because the matter excepted to was any way material to the defence of the suit; but because the exceptions were calculated to mutilate the answer unnecessarily, by breaking up sentences and clauses thereof which ought to stand or fall together. Where the whole of a clause, or sentence, in an answer is impertinent, and depends upon the same principle, the complainant has no right to garble the answer by excepting to a part of the clause or sentence only, so as to make what remains unintelligible; or in such a manner as to wholly change the meaning of what remains, should the part excepted to be stricken out. The tenth and eleventh exception in the present case should have been disallowed by the master, because the subject matter of both of those exceptions and the line and a half which was left between them were all equally impertinent, and depended upon the same principle. The whole -should thereiire have been embraced in one exception. By-making twc exceptions, embracing only the beginning and end of the cause, what remains between the parts of the answer which are covered by those exceptions is rendered perfectly sensdess and unmeaning. On the other hand, the ninth exception was properly allowed, although it divided a sentence in ihe middle; because the first oart was pertinent and responsive to the bill, and the part excepted to was impertinent, at it sought to put a matter in issue, which was not chargedm the bill or material to the defence. And the sense of the pertinent matter will not be changed by striking out that pat of the clause which is covered by the exception. The vhole of that clause of the answer which follows the subject natter of the fourth exception, appears to be impertinent, and % should have been objected to in a single exception, instead of being garbled by the allowance of four different exceptions to separate and distinct parts thereof; leaving the residua of the clause, if possible, more impertinent than it was in the answer as originally put in.

As the decision of the vice chancellor was right in overruling the single exception to the master’s report, the order which is appealed from must be affirmed with costs; and the proceedings are to be remitted to the vice chancellor.