text:
    The Attorney General vs. The Cohoes Company.
    1836. August 2.
    Where the C. C. without authority or licence from the canal commissioners, commencedcutting through the embarkment of the Erie canal, with theavowed intention of drawing water therefrom for the supply of mills, and the superintendant attested to an information, which alleged that the embankment was a necessary work to maintain the elevation of the water in the canal, and that the contemplated encroachment might deprive the canal of its necessary supply of water; and the answer of the C. C., put in under oath, admitted the encroachment but denied that it would deprive the canal of its necessary supply of water; a motion to dissolve the injunction restraining the defendants from making such encroachment was denied.
    Chancery has jurisdiction to restrain any purpresture, or unauthorized appropriation of the public property to private uses, which may amount to a public nuisance or may injuriously affect or endanger the public interest ; and where public officers who have charge of public works, believe that a contemplated encroachment will prove injurious to such works, private persons should not be permitted to make such encroachment contrary to law, upon a mere opinion although supported by oath that the encroachment would not be injurious to the public.
    This was an application to dissolve an injunction restraining a purpresture, or an unauthorized appropriation of the embankment and waters of the Erie and Champlain canals near their junction at the Cohoes. The information, which was sworn to by the superintendant of that part of the canal, stated that the embankment in question, which was connected with the dam across the Mohawk river, was a necessary work to maintain the elevation of the water in the canal and the pond above the dam; that the Cohoes company, by its agents and workmen had entered upon the embankment and lands belonging to the people of the state, forming a part of canals, without authority or licence of the canal commissioners, and contrary to law, and had commenced tearing away a part of the slope wall and embankment, with the avowed determination to cut through the embankment for the purpose of drawing water from the canal for the supply of mills erecting by the Cohoes company below such embankment; and that if the defendants were not restrained from proceeding in the alleged encroachment the canals might be deprived of their necessary supply of water, so that the trade thereon might be greatly impeded and possibly totally interrupted. The answer of the Co-hoes company, which was sworn to by its agent admitted the entry upon the embankment of the canal for the object stated in the bill; but it denied that the intended appropriation of the embankment and of the waters of the canal would have interrupted or impeded the navigation of the canals, or deprived them of their necessary supply of water. The answer also stated various matters, not responsive to the information, for the purpose of showing a right to the use of the surplus waters of the dam.

      S. Beardsley, Attorney General.

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

The fact is not denied by the answer, that the embankment in question is a part of the Erie and Champlain canals, and as such belongs to the people of the state. The question is not properly presented in this stage of the suit whether the several matters set up in the .answer by way of avoidance, form any defence to the suit. The matters thus set up are not strictly responsive to the information ; and even if they were they are not sworn to in such a manner as to authorize a dissolution of the injunction thereon without further proof, or until the Attorney General has had an opportunity to introduce proofs on the part of the state. A mere denial upon information and belief is not sufficient to authorize a dissolution of an injunction which is sustained by the allegations in the bill. (2 Robin. Pr. 243 and cases there referred to.) The answer in this case is sworn to by the agent of the company, who swears to his belief merely, but does not pretend that he has any knowledge as to these matters. The decision of the questions arising upon this part of the answer must be postponed until the hearing, when all the facts will be properly before the court by the testimony in the suit.

As the case now stands it would not be proper to permit the defendants to proceed and make an opening in the caiial embankment, for the purpose of taking any part of the water therefrom, without the consent, and contrary to the wishes of those officers of the state; who have, by law, been specially entrusted and charged with the duty of protecting and preserving these canals, and the uninterrupted use thereof, for the public» This court has jurisdiction to restrain any purpresture or unauthorized appropriation of the public property to private uses, which may amount to a public nuisance or may injuriously affect or endanger the public interest. And where the officers entrusted with the protection of such public interests, acting under the sanction of their official oaths, believe theintendedencroachmentwillprove injurious to the navigation of the canals, private persons should hot be permitted to interfere with the waters or embankments of the canals contrary to law, upon a mere opinion# although under the sanction of an oath, that the intended trespass upon the public rights would not be an injury to the public. Lord Eldon proceeded on this principle in refusing to dissolve an injunction restraining a purpresture in the Thames river, by Earl Grosvenor and others, although there were affidavits on the part of the defendants that the public would not be injured by the intended encroachment; .the proper officer of the crown having examined the case and expressed his opinion that the relator was entitled to the assistance of the Attorney General in preventing such encroachment. (The Attorney General v. Johnson and others 2 Wils. Ch. Rep. 87.)

The injunction in this case must therefore be retained until the hearing.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    In the matter of G. C. Davison and others, infants.
    1836. August 2.
    Where a testator bequeathed an annuity to his widow during the minority of his children, together with a distributive share of his estate after that period, in lieu of dower, and for the further purpose and upon the express trust that she should take care of, educate and maintain the children during their minorities; Held, that the court was not authorized to order a farther allowance to be made out of the infants estates to the widow, for their support, until the fund bequeathed to her for that purpose was ex» hausted.
    Maintenance for infants cannot be allowed by the court of chancery out of a fund which, upon the happening of the event contemplated by the testator in the bequest of such fund, will not belong to the infants but to some other person. But where a fund is given absolutely to several infants as a class, with the benefit of survivorship if either of them dies before the time appointed for the distribution of the fund, as the chance of survivorship is equal, the court may allow maintenance out of the fund, for the benefit of the infants equally, while all who ate interested therein Continue to be minors.
    This was áñ application for' a further allowance to the mother of the infants out of the estate of their father, for their maintenance, beyond the amount allowed for that purpose by his will. The testator died in 1824, and by his will devised and bequeathed his real and personal estate to his-executors and trustees in trust, to invest the personal estate' and the proceeds of the real estate until his youngest child should arrive at the age of twenty-one; and out of the rents and profits and income thereof to pay to his widow an annuity of $1000 during that time, and to pay each child $1000 upon his or her arrival at full age. And upon the further trust to divide the estate equally between the wid-s ow and such of the children as should be living when the' youngest arrived at the age of twenty-one ; and if any of the children should then be dead, leaving issue, such issue' to have the share which would have belonged to such child if living. The bequest of the annuity to the widow, and the other provisions made for her by the will, were declared to be in lieu of dower; and for the further purpose and upon the express trust that she should take care of, educate, maintain and bring up the children during their minorities, in such manner, according to her judgment, as had theretofore been done. A further provision or allowance was made, for the extra expense of educating such of the children as it might be necessary to send from home for the purpose of education, not exceeding $200 annually for each child.
    The petition of the mother stated that the income of the estate was about $3500, the same having nearly doubled since the death of the testator; and that the annuity of $1000 was entirely inadequate for her support and the support and education of the children. She therefore asked for a further allowance of $500 annually, for that purpose, but of the income of the estate.
    J. V. L. Pruyn, for the petitioner.
   The Chancellor.

The allowance of the $1000, as pro. vided. by the will, is undoubtedly a scanty allowance for the support of the widow and the three children who are still tinable to earn any thing for their own support, considering the amount of the property to which they are presumptively entitled. But I do not see how this court can increase that allowance without making a new will for the testator. He has given to the widow all his household furniture and an annuity of $1000, and has also made a further provision by which she, or her personal representative in case of her death, will be entitled to one sixth of the whole residuary estate# and to a still greater share if either of the children should die without issue j the whole of which bequest to the widow is expressly charged with the support and education of the children. If the annuity, therefore, is not sufficient, she must resort to and anticipate a part of her share in the residuary estate for that purpose. Her share of the residuary estate, in which she has a vested interest which cannot be defeated by her death before the time appointed to make distribution, is already about $8000; and her share of the future accumulations will considerably increase the amount. The estate of the infants cannot, therefore, be resorted to for their support until the whole of the fund bequeathed to her in trust for that purpose is exhausted.

Again; the infants have no absolute interest or right to any other fund out of which maintenance can be allowed. The utmost extent to which this court is authorized to go in allowing maintenance out of a fund which may never come to the infant, is to allow it out of an estate which is given absolutely to a class of infants with benefit of survivorship. In such cases, as the chance of survivorship is equal although all may not in the end become sharers in the fund, the court has gone so far as to allow maintenance out of the fund for the benefit of all while the whole continued minors. The cases on this subject were all referred to by Lord Eldon in the case Ex parte Kebble, (11 Ves. 604.) And he there arrived at the conclusion that maintenance could not be allowed out of a fund which was given over to a third person, or to the issue of the infant, in case of the death of such infant before the time appointed for the distribution of the fund. The same question again came before him in Errat v. Barlow, (14 Vesey, 202,) and he expressly overruled the decision of Lord Thurlow, in Fendall v. Nash, (5 Vesey, 197,) as wholly indefensible in principle. And he again held that maintenance was to be allowed, against a direction for accumulation, in those cases only where it was for the benefit of the infants, the chance of surviving being equal; and where no other interests were to take effect upon any contingency, which would be defeated or affected by allowing such maintenance. I fully concur in the conclusion at which his lordship arrived, that this court has no power to allow maintenance to infants out of a fund which, upon the happening of the event contemplated by the testator in the bequest of the fund, will not belong to the infants but to some other person. It is hardly necessaiy to add, that these decisions of Lord Eldon Were followed by Sir Lancelot Shadwell, in the recent case of Turner v. Turner, (4 Sim. Rep. 430.)

No allowance for maintenance can therefore be made out of the principal of that part of the fund which presumptively belongs to the several infants, but which is given over to the issue of such of them as shall die, leaving issue, before the time appointed for the distribution of the fund. But as no accumulation of the income of the fund can be made except for the use of the infants absolutely, they may be allowed a support out of their respective shares of such income, if the funds provided for their maintenance by the testator should happen to fail. (1 R. S. 736, § 39, 40.) And as the share bequeathed to the widow on such distribution belongs to her absolutely, and is not given over to any ether person in case of her death before that time, the executor’s and trustees are authorized and directed to anticipate the payment of a portion of her share, by paying over to her $500 annually on account thereof, and charging her with compound interest on such advances ; so as to make her share equal with the others on the final distribution of the fund.


text:
    Dows and others vs. McMichael.
    "Where the complainants brought a suit against the defendant and B. & N. in the supreme court, as the makers of a note given by a copartnership firm, and the defendant and B. & N. pleaded in abatement the non-joinder of D. & D., two other persons who were alleged to be partners, upon which plea issue was joined and a verdict and judgment was rendered against the defendant and B. & N. thereon ; and upon a creditor’s bill filed in this court against the defendant alone he put in a plea which, among other things, averred that D. & D. were partners in the firm, and were jointly holden as makers of the note with the defendant and B. & N.; Held that the record of the judgment in the supreme court was conclusive evidence in favor of the complainants, in opposition to this averment in the defendant’s plea in this court.
    Mo repleader is awarded in the court of chancery upon an immaterial issue. And if the truth of the several allegations contained in the plea are established by the proofs upon an issue joined on such plea, the bill must be dismissed ; as the court, in that stage of the proceedings, does not inquire as to the validity of the matters pleaded as a defence to the suit. But if the defendant fails in provingthe truth of his plea, it must be overruled as false; and the complainant will then be entitled to a decree according to the case as made by his bill.
    Where a plea to a bill in chancery contains several distinct averments or allegations of fact, all the allegations must be supported by the proofs, or the plea. will be overruled as false.

      1836. August 22.
    To render a judgment conclusive in a new suit in relation to the same matter, it is requisite that the former suit should have been between the parties to the last suit or their privies; but it is not essential that all the parties in the first suit should be parties in the last.
    Where the forms of pleading are such that a party has no opportunity to plead a former judgment or decree in another suit as an estoppel, the record of the decision in the former suit may be given in evidence, as conclusive of the fact adjudicated and decided in such former suit.
    This was an appeal from a decree of the vice chancellor of the third circuit. The complainants were the holders and owners of a promissory note against the defendant and others, who were copartners under the name or firm of Bradley, Nichols & Co. The note was made payable to Douglass & Dunn, and was endorsed by them; and not being paid when it fell due, they were regularly charged as the endorsers thereof. The complainants afterwards brought a suit upon the note, in the supreme court, against the defendant, and against L. Bradley and B. R. Nichols, as the partners composing the firm of Bradley, Nichols & Co., in which suit a judgment was rendered in favor of the plaintiffs, and an execution was afterwards issued thereon, and was returned unsatisfied. Bradley & Nichols having become insolvent and being destitute of property, the complainants filed their bill in this cause against the defendant, MeMichael, alone, to obtain satisfaction of their judgment out of his property which could not be reached by their execution at law. The defendant MeMichael pleaded in bar of the suit, that J. B. Douglass and J. Dunn were copartners in the firm of Bradley, Nichols dr Co. at the time the debt was contracted and the note given, upon which the judgment in the supreme court was recovered ; that Dunn .afterwards died ; that before the return of the execution on the judgment, Douglass paid and satisfied the judgment to the complainants; that this suit was prosecuted for the benefit of Douglass, and that the complainant had no legal, equitable or beneficial interest therein; and that in paying the judgment, Douglass had not paid more than his proper proportion of the debts due from the firm of Bradley, Nichols & Co, at the time he so paid and satisfied the same. The complainants took issue upon the plea, and witnesses were examined on both sides as to the truth thereof. Among others, Bradley and Nichols were examined as witnesses for the defendant, although objected to by the complainants as incompetent. Upon the hearing of the cause a motion was made by the complainants’ counsel to suppress their depositions, but no order was entered upon such motion. The complainants gave in evidence the record of the judgment in the supreme court, from which it appeared that McMichael and Bradley & Nichols, the defendants in that suit, pleaded in abatement the non-joinder of Douglass & Dunn, averring that the promises upon which the suit was brought were made by the defendants jointly with Douglass & Dunn, and not by the defendants alone as stated in the declaration; that the plaintiffs took issue on that plea, and that upon the trial thereof a verdict was found for the plaintiffs, and the judgment was entered upon that verdict. The complainants, therefore, insisted that the judgment was conclusive evidence, in this suit, that Douglass & Dunn were not copartners in the firm and jointly liable with the other defendants on the note. The vice chancellor decreed a dismissal of the complainants’ bill with costs; from which decision they appealed to the chancellor.

      Ira Harris, for the appellants.
    The matters contained in the plea were set up by the defendant as a defence to the suit at law, in which the judgment in the supreme court was recovered. They were put directly in issue in that suit and were decided against the defendant and are therefore res adjudicata. (Hawley v. Mancius, 7 John. Ch. Rep. 182.) In this case both parties were parties to the suit at law; therefore this court will not inquire into the truth of facts which have been adjudicated upon by another court of competent jurisdiction. (10 Wendell, 82.)
    Bradley and Nichols are interested witnesses. The judgment upon which the bill in this cause was filed is against them as joint debtors with the defendant, and in case this plea is established it goes to discharge them from the judgment, Bradley & Nichols are interested also in making Douglass & Dunn contribute to the payment of the judgment, and thereby to diminish their shai’e of the conti’ibution. (16 John. R. 93.) Without their testimony, there is not sufficient evidence of a copartnership between Douglass & Dunn and Bradley, Nichols & Co.
    But the testimony of Bradley & Nichols does not establish the copartnership when taken in connection with the other facts and evidence conti-adicting or explaining it. There is no proof that Van Santvooi’d was a copartner. Admitting the. copartnei’ship to be established as alleged in the plea, there is no proof to sustain the allegation that the complainants have no legal, equitable or beneficial interest in the judgment. Neither is there any proof to sustain the allegation that Douglass, in paying this debt, has paid no more than his propox’tion of the debts of the copartnership. Without this averment the plea would have been insufficient. (2 John. Ch. Rep. 397.) The entire plea must be proved. The defendant cannot say that any allegation is immaterial. And if there is a failure in the proof of any one part of the plea, the whole must be overruled.

      A. C. Paige, for the respondent.
    Bradley and Nichols were competent witnesses for the defendant to prove not only the payment of the judgment by Douglass, bxit also that Douglass & Dunn were partners in the firm of Bradley, Nichols & Co. Bradley and Nichols will not be gainers or losers by the event of this suit; and the decree cannot be given in evidence, either for or against them, in another suit. Douglass & Dunn not being parties to this suit, will not be concluded by the decree; and the decree cannot therefore be evidence either for or against Bradley and Nichols, in a suit between them and Douglass & Dunn. The intex-est of Bradley and Nichols is equally balanced. If they dischai’ge themselves from the debt to the complainant, they make themselves liable to Douglass & Dunn; if the decree should be against the defendant, he can compel them to coxxtribute. In the case of Marquand v. Webb, (16 John. R. 93,) the witness was intei'ested, because the defendant sought to be made liable, as part owner of the vessel, being a party to the record would have been concluded by it. Not so as to Douglass & Dunn, (8 John. Cas, 82. 10 John. Rep. 21. 5 Cowen, 153, 1 Paige’s Rep. 18. Ridley v. Taylor, 13 East, 175. 3 John. Rep. 420, 1 Paige’s Rep. 35. 4 John. Rep. 126.) The judgment in the supreme court estops Bradley and Nichols from denying that Douglass & Dunn are not partners. A decree, therefore, in favor of the defendant, will not benefit them; they will still be liable to execution upon that judgment. At all events, Bradley and Nichols are competent witnesses to prove the payment of the judgment by Douglass & Dunn.
    The trial and judgment in the supreme court is not put in issue by the pleadings. The record of the judgment, therefore, is not proper evidence for the complainant. The complainant should have amended his bill, by setting up this trial and judgment. (See Mitf.Pl. 324, 5, 331 ; 4 Paige’s Rep. 75; 2 id. 61.) But the fact in issue in the supreme court was only as to the partnership, not as to the payment of the debt by Douglass & Dunn. If the complainants’ judgment has been paid by Douglass & Dunn, the complainants have no interest in this suit. The beneficial owners of the judgment should have been made complainants. (2 John. Ch. 238, 3 John. Rep. 543. 1 Paige’s Rep. 20.)
    The plea is substantially proved. The allegation in the plea that Douglass & Dunn only paid their proportion of the partnership debts was an immaterial averment; it was not necessary to prove it. A plea may be good in part and bad in part. (5 John. Ch. Rep. 555. 20 John. Rep. 668. 4 Mitf. PI. 295, 4th ed. 1 Chit. PI. 376, 303 to 308. 2 John. Ch. 369.) The testimony was sufficient without the evidence of Bradley and Nichols to show that Douglass & Dunn were partners in the firm of Bradley, Nichols & Co.; and the evidence is also sufficient without the testimony of Bradley and Nichols, to establish the payment of the judgment by-Douglass & Dunn,
   The Chancellor.

From the view I have taken of this case, it is not material that I should consider the question whether Bradley and Nichols, two of the defendants in the judgment upon which this suit is brought, were competent witnesses for McMichael, to prove that Douglass & Dunñ were members of the firm, and jointly liable with him and them for the payment of the complainants’ debt. Upon the hearing before the vice chancellor, the question for consideration was as to the truth of the several allegations in the defendant’s plea; and if the truth of every distinct allegation in the plea was not established by the proofs, or if the record of the judgment in the supreme court was conclusive evidence against the defendant as to any matter put in issue' by the replication# the plea should have been overruled as false.

No repleader is awarded in this cotirt, upon an immaterial issue joined upon a plea. The court, therefore, never inquires as to the materiality of the allegations contained in the plea in such a case, If the truth of the plea is established by the proofs, the complainant’s bill must be dismissed, although the matters stated in the plea contain, in fact# no Valid defence to the suit, On the other hand, if the defendant fails in proving the truth of his plea upon the hearing, the plea must be overruled as false; and the complainant will be entitled to a decree according to his case as stated in the bill.

In the case tinder consideration, the plea contained three distinct allegations, for the purpose of showing that there was no equitable claim against the defendant in this suit# to wit; that Douglass & Dunn were members of the firm of Bradley, Nichols & Co. at the time the note was given, and Were jointly liable with the defendants in the suit in the supreme court, for the payment thereof as a copartnership debt; that the judgment had been fully paid and satisfied by Douglass before the return of the execution issued thereon# and that this suit was prosecuted for the sole benefit of Douglass, the complainants having-no legal or beneficial interest therein; and that the amount so paid by Douglass was no more than his proportion of the debts due from the firm at the time of such payment.

As to the first allegation, if the testimony of Bradley and Nichols is to be received and credited, it would probably be sufficient to establish the fact that Douglass & Dunn had such an interest in the firm of Bradley, Nichols & Co. as to render them liable to third persons for the debts of that firm. But, even from that testimony, it is extremely doubtful whether their interest was such as to make them liable, as \between themselves and McMichael, Bradley & Nichols, to contribute towards the payment of the copartnership debts; The récord of the judgment in the supreme court, however, which was read by the complainauts. upon the hearing, is conclusive evidence of the falsity of this allegation in the plea. The same allegation having been put in issue between these parties in the supreme court, and the question of fact having been decided against the defendant in that suit, he is estopped from again alleging the same matter in bar of this suit to enforce the collection of that judgment, or in any other suit between him and the complainants. As special replications are not allowed in this court, the complainants had no opportunity of pleading the decision of the same question in the former suit, as an estoppel; And the rule of law on this subject is, that where the party cannot plead the former decision as an estoppel, the record thereof may be given in evidence, and. is conclusive and binding upon the party, the court and the jury, as to every fact adjudicated and finally decided in the former suit; (Wright v. Butler, 6 Wend. Rep. 284.) The record in this case is not given in evidence for the purpose of establishing the fact of the recovery in the former suit, which was not put in issue by the replication. But the decision of the same question in a former suit against the defendant is given in evidence for the purpose of establishing, conclusively, that the allegation in the defendant’s plea in this suit cannot be true. And it is in this way that the record of a former decision is always introduced as evidence in those cases where it cannot be pleaded as an estoppel. It was, therefore, evidence pertinent to the issue in the present case. To make a former judgment conclusive between the parties in another suit in relation to the same matter, it is necessary that the former suit should have been between the same parties. But the fact that there were other defendants in, the former suit, who are also bound by the decision and estopped from controverting the same fact with these' com» plainants a second time, does not render the former decision any less conclusive against the present defendant. The record in the former suit has therefore falsified this allega» tion in the plea in bar in the present case.

I think the defendant has also failed in establishing the fact alleged in the plea, that the judgment had been paid by Douglass before the return of the execution, and that the complainants had no legal or beneficial interest in the suit. As Douglass & Dunn were endorsers on the note, they were liable to the complainants for the payment; and Douglass'has probably secured the payment of the debt if it cannot be collected of the defendant in this suit. Such a state of facts would be perfectly consistent with the declaration of Dows, which the defendant has given in evidence,- and also consistent with the oath of Dows to the bill, in which he swears positively that the whole amount of the judgment, with the interest thereon, remains unpaid. To establish this part of the plea the defendant was bound ta prove that Douglass had paid the whole amount as a payment on the judgment; and not merely that he had secured the amount for which he was liable as the endorser of the note. For if the complainants have not relinquished their claim upon the defendant upon the judgment, they have both a legal and beneficial interest in this suit, although their principal object in prosecuting the.suit may be to benéfit the endorser. The plea is therefore falsified in this respect also.

There was no evidence whatever introduced on the part tif the defendant, to establish the allegation that in paying the judgment Douglass had paid no more than his share of the debts of the firm. On the contrary, even if Douglass & Dunn were partners, I think the testimony of Williams as' to the settlement made with the other partners at the time of their dissolution, shows that the latter assumed the payment of the debts, and that there was a balance due to-Douglass & Dunn for which- a note was given at that time. If that was the case, Douglass’ share of the debts' due from the firm was nothing at the time of the recovery of this judgment; and McMichael, Bradley and Nichols are in equity bound to pay the whole of this debt to the complainants.

The defendant having wholly failed to establish the truth of the several allegations in his plea, the decree of the vice chancellor was erroneous, and must be reversed with costs. And a decree must be entered for the complainants, overruling the plea as false ; declaring the right of the complainants to have satisfaction of their judgment, with interest thereon from the time it was entered, together with the costs of this suit, out of the property, effects and choses in action of the defendant; and with such other provisions as were directed to be inserted in the decree when this cause was originally before the chancellor, when no testimony had been adduced in support of the plea. (Nee 2 Paige’s Rep. 345.)


text:
    Vandenburgh vs. Van Rensselaer.
    1836. August 22.
    Where a proceeding in a cause is required to be had within a limited time, as within a certain number of days from or after the entry of an order or the service of a notice or other paper, the whole of the first day is to be excluded in the computation of time.
    But where a previous notice of a motion or other proceeding in a suit is required to be given, the whole of the day on which the notice is served is included in the computation of time, and the day upon which the motion is to be made or other proceeding had is excluded.
    A mere notice from a party that he intends to proceed in a manner which would be irregular, does not make it necessary for the adverse party to apply to the court on the subject, until some proceeding in the cause is had which is irregular and inconsistent with the rights of such adverse party.
    This was an application by the defendant to set aside an order, entered by the complainant, to produce witnesses. The answer was put in on the 15th of June, and the replication was served at the office of the defendant’s solicitor on the 15th of July. The counsel for the defendant insisted that the replication was not served in time ; and that the order to produce witnesses was, therefore, irregular, as the cause was in readiness for hearing upon bill and answer.

      J. V. N. Yates, for the complainant.

      J. Rhoades, for the defendant. .
   The Chancellor.

Where, by the rules or practice of the court, any subsequent proceeding in a cause is required to be had within a limited time, or within a certain number of days from or after any previous proceeding, as from the entry of an order or the service of a notice or other paper in the causé, the whole of the day on which the order was entered, or the notice or other paper was served, is to be excluded in the computation of time ; so as to give the full time after that day. But where previous notice of a motion, or of any other proceeding in the suit, is required to be given, the whole of the day on which the notice was served is to be included in the computation of time, and the day upon which the motion is to be made, or other proceeding had, is excluded. Applying these principles to the case under consideration, it will be found that the replication was served within the time required by the rules of the court, and that the entry of the order to produce witnesses was regular. The complainant had twenty full days after the 15th of June, to file exceptions to the answer; so that the answer did not become perfect, or in the language of the rule, was not to be “ deemed sufficient” until after the 5th of July. The complainant, therefore, had ten entire days after that time to file and serve her replication.

The complainant’s proceedings being regular, it was not necessary for her to make any application to the court on the subject until the defendant should take some positive step in the cause which was irregular and inconsistent with her legal rights. A mere notice from the defendant’s solicitor that he intended to proceed in a manner >vhich would be irregular, did not render an application to the court necessary on her part; especially as her solicitor protested against the intended proceeding as irregular. If the defendant had proceeded to place the cause upon the calendar for hearing, upon bill and answer, the complainant might have applied to the court to strike the.cause from the calendar, with costs, for the irregularity.

The motion to set aside the order to produce proofs must be denied, with costs.


author: The Chancelor.

text:
    Clapper and wife vs. House.
    1836. August 22.
    Where a testator previous to the making of bis will had made a written contract for the purchase of a lot of land and had paid part of the purchase money therefor, and afterwards devised such lot to his daughter in fee, but alter the making of his will paid the residue of the purchase money and took a conveyance of the premises; Held that the conveyance of the legal estate to the testator subsequent to the making of the will, although it was a revocation at law was not so in equity; and that the devisee might file a bill in chancery to restrain the other heir at law from proceeding in an ejectment suit for the lot, and to compel him to release his legal title thereto which in equity he held as a mere trustee for her.
    In the case of a mere equitable devise, where the legal estate descends to the heir as trustee for the equitable devisee, a feigned issue is not absolutely necessary to enable the court of chancery to make a decree to carry such devise into effect. In a case of that kind, if the heir at law wishes a feigned issue, for the purpose of contesting the validity of the will before a jury, he must ask for it at the hearing; as that is the proper time to ask for an issue if either partydesires it.
    Where a decree of the vice chancellor is appealed from after it has been enrolled and such decree is subsequently affirmed, if the decree of affirmance directs the proceedings to be remitted to the vice chancellor, such decree must be added to the original enrolment in the clerk’s office and must be signed by the vice chancellor. But where the proceedings are not remitted to the vice chancellor, the original enrolment must be transmitted to the register or assistant register with whom the decree of affirmance is entered, and such decree must be added to the enrolment of the original decree, and must be signed by the chancellor.
    This was an appeal from a decision of the vice chancellor of the seventh circuit. In June, 1827, Franchot and Van Rensselaer, being the owners of lot No. 77 in Lysander, entered into a written contract with R. House, the father of the defendant and of the complainant Maria Clapper, to sell the lot to him for $3200, about $700 of which was paid down, and the residue was payable in one and two years with annual interest. Shortly after the making of the first payment R. House entered into possession of the lot and continued to occupy and improve it as his own until his death, in September, 1828. In September, 1827, R. House, the purchaser, executed his will in due form of law to pass real estate, arid thereby devised lot No. 77 in Lysander, by name, together with all his other freehold estate, to his daughter Maria Clapper, in fee. And after giving a nominal legacy of $5, to the defendant, his son, he bequeathed the residue of his personal estate to his said daughter, and appointed her the executrix of his will. About two months after the making of this will, the testator paid the greater portion of the then unpaid purchase money, and paid the residue thereof in July 1828, when he received a conveyance of the premises pursuant to his contract of purchase. The devisee and her husband took possession of the premises in question after the. death of her father, and continued in possession until February 1829, when the defendant commenced an ejectment suit against the husband, to recover the undivided half of the premises, claiming it as one of the heirs at law of the testator. The complainants thereupon filed their bill in this cause for an injunction to restrain the prosecution of the suit at law, and to establish their right to the premises under the will. The defendant by his answer admitted the making of the contract for the purchase of the lot in question, and the payment of the purchase money, and the subsequent execution of the conveyance to his father, as stated in the complainants’ bill. He also admitted the making of the will, but insisted that the testator was incompetent to make a will, and that his signature to the will was improperly obtained. The defendant also insisted upon the invalidity of the devise, on the ground that the testator was not legally seized of the lot at the date of the will.' The cause was heard upon pleadings and proofs. The vice chancellor decided in favor of the validity of the will, and that the devise of the lot in question to Mrs. Clapper, was not revoked by the subsequent conveyance of the legal estate to the testator. The defendant was therefore perpetually enjoined from prosecuting any suit at .law for the recovery of the lot or any part thereof as an heir at law of the testator ; and he was also decreed to pay the costs of the ejectment suit, and the costs in this cause. From this decree and every part thereof, the defendant appealed.

      A. L. Jordan, for the appellant.
    The testator acquired the title to the premises in question after the date of the will; the premises did not therefore pass to the complainants by the devise. The testator had no equitable title to the premises at the date of the will, not having then paid for the land. And he had at that time only a small equitable interest in the premises, having then paid on the contract of purchase only #707, leaving over $2500 due. This equitable interest was merged by the subsequent conveyance of the legal title to the testator and his heirs, which conveyance altered the testator’s interest, and revoked the will. At all events, no greater or other interest could pass by the devise than the testator had in the premises at the date of the will. The legal title obtained by the testator after the date of his will cannot inure to the benefit of the devisee so as to enlarge, alter, or effect the devise. But if the legal title subsequently acquired did inure and pass the title, to the devisee, then it was a legal title and the complainants can have no relief; for them remedy was perfect at law, and no decree in this suit can alter or affect the devise or make it more perfect for the purposes of a defence to the ejectment suit. The testator disinherited his only son, which fact unexplained is unnatural, and not to be accounted for upon any ordinary principle upon which men usually act. The will was executed in consequence of an undue influence exercised by the complainants upon the mind of the testator. Testimony having been taken on both sides in reference to the fraud in procuring the will, the complainants erred in noticing it for hearing. They should have applied for an issue at law. Bogart v. Perry, 1 John. Ch. 52. S. C. 17 Johns. 354. Sparrow v. Hardcastle, 3 Atk. 803. Lincoln’s case, 1 Eq. Cas. Ab. 411. Abney v. Miller, 2 Atk. 598. Ward v. Moon, 4 Mad. 368. Bates v. Graves, 2 Ves. jr. 289. 1 Ves. sen. 400. 2 Brown Par. Rep.560. 2Ves.sen.567. l.P.Wms.121. 3 P. Wms. 130. 9 Ves. 1523. 1 John.Ch. 550. 2 Brown Ch.
      400. 2 Sch. & Lef. 492. 9 Ves. 234. 12 Ves. 355. 7 Par. Cas. 70. 16 Ves. 91. Id. 273. 3 Wend. 626. Clark v. Fisher, 1 Paige, 171. Jones v. Jones, 3 Meriv. 161, and note 167. 3 Wend, 503. 2 Paige, 396. 5 John. 118. Hopk. 413.

      B. D. Noxon, for the respondents.
    A devise of land held by the testator under a contract or articles of agreement for the purchase thereof, is good in equity, though not at law. When the testator after making the devise obtains the legal title to the lands, in pursuance of the contract for the purchase thereof, it is not such an alteration of the estate as to work a revocation of the devise. The will was duly proved ; the competency of the testator fully established, arid the-devise in all respects valid in equity to pass the estate to Maria Clapper. Cruise’s Dig. tit. 38, Devise, ch. 3, § 32, 33, 36. 3 John. Ch. 398. 19 Ves. 198. Rider v. Wager, 2 P. Wms. 332. 4 Kents Com. 513. Cotter v. Layer, 2 P. Wms. 624. Williams v. Owens, 2 Ves. jr. 601, 3. 7 John. Ch. 272. 10 Ves. 613. Poioellon Dev. 599. 1 Madd, Ch. 286, 7, 8, 9. Newl. on Con. 42,3. 1 Fonb. Eq. 207, note n. 4 Dane’s Ab. 573. Parsons v. Freeman, 1 Wilson, 309. 3 Atk. 749, 798. 2 Ves. & Beames, 385. 6 Ves. 219. Douglass, 718, 19,20, 21. Perry v. Phelps, 1 Ves. jr. 251. 2 Ves. jr. 599. 4 Mad. 368. 8 Fes. 281 7 id. 564. Ballard v. Carter, 5 Pick. 112. The appellant not having,asked for a feigned issue on the hearing before the vice chancellor, the vice chancellor did not err in deciding the case without awarding an issue. 3 Young & Jarvis, 278. 13 Price, 119. Id. 425. 2 Ball. & B. 387. 5 John. Ch. 12, 148. 3 Paige’s Rep. 457. 1 John. Ch. 436. 6 id. 255. 3 Paige’s Rep. 601.
   The Chancelor.

It is not material in this case to inquire whether the suspicion on which the testator acted in disinheriting the defendant was well or ill founded. The fact that he separated from his wife soon after the birth of the defendant shows that it was not a suspicion engendered by interested persons when his mind had .become enfeebled by age and infirmity. The testimony appears to leave no room to doubt that the testator was of sound disposing mind and memory, and perfectly competent to devise his estate at the time this will was made. The testimony as to his subsequent weakness, both of mind and body, a few months previous to his death, is therefore immaterial; except that it might be relied upon by the respondents, for the purpose of showing that he was incompetent in July, 1828, to revoke the will, if the taking of a conveyance of the legal estate in pui’suance of the previous agreement could have been construed into an implied revocation. There is no allegation in the defendant’s answer that the testator, in 1828, was of sufficient capacity to revoke his will, and wished to do so, but that he was prevented from doing it by duress, fear or restraint. There being no such allegation in issue in- the cause, the whole of the testimony on that subject was irrelevant and improper. And as it was objected to by the complainant’s counsel at the time it was offered, it ought to have been expunged from the record, and probably would have been if an application to that effect had been made. If the defendant wished for a feigned issue, for the purpose of ascertaining whether the testator was competent to execute the will and executed the same freely and understandingly, he should have asked for the feigned issue at the hearing | as that is the proper time to ask for an issue if either party desires it. As the complainants came into this court for the purpose of enforcing an equitable devise, in opposition to the legal estate which had descended upon the heirs at law by virtue of the deed, this was a case of strict equitable cognizance, and a feigned issue was not absolutely necessary to enable the court to make a decree carrying into effect the equitable devise.,. The cause is therefore in a situation to be decided on its merits, free from any technical objections of mere form; and the'rights of the parties depend upon the legal questions arising upon facts which, from the testimony in this case, are no longer in doubt.

The rights of the parties in this court must depend upon the application of the principles of equitable conversion to the case under consideration. Equitable conversion is a constructive change in the nature of property, by which real estate is, in equity, considered as personal property, and-personal property as real estate, for the purposes of devise or bequest, descent or distribution; although such change had not in fact been effected at the time to which such equitable conversion refers itself. A court of equity, for certain purposes, looks upon that which is agreed to be done, or which a testator by his will has directed to be done, as actually done, according to the contract in the one case, or the direction of the testator in the other. Consequently when a testator has made a valid direction for the conversion of his personal estate into realty, for any purpose, or real estate into personalty, the person for whose benefit it is thus to be converted may devise or bequeath it as that species of estate into which it was directed to be converted. And if he dies intestate without having done some act amounting to a reconversion, the property will descend to his heirs at law or be distributable to his next of kin as if it were in fact that species of property into which it was directed to be converted. So where a valid contract is made for the sale of an estate, equity considering the vendee as the actual owner of the estate, and the vendor as the owner of the purchase money as a part of his personal property, although the time for the making of the conveyance or for the payment of the purchase money had not in fact arrived, at the time of the occurrence which renders the application of this principle of constructive conversion material to the rights of parties claiming an. interest in the subject of such conversion. (Sugd. Law of Vend. 8 Lond. ed. 163.) The lot in question in the present case must therefore, upon this principle, be considered as a part of the real.estate of the testator, at the time of making ;his will, in September, 1827, in the same manner as if the conveyance had actually been executed, and the purchase money paid, at the time when the contract of sale was entered into, two or three months previous to the date of the will." The payment of the purchase money by the testator, or so much thereof as remained unpaid, after the making of his will, could not have the effect to revoke the devise, any more than the payment of a mortgage, subsequent to the execution of a will of real estate in which the testator had a legal title, could be considered as a revocation of the devise of the property upon which such mortgage was an incumbrance. In the devise or descent of equitable interests or estates in land, equity pursues the corresponding rules of law in relation to the devise or descent of similar interests in real estate where the legal estate is vested in the testator, or intestate, at the making of the will, or at his death, as the case may be. Where there is a valid contract to purchase lands, as the vendee is considered in equity as the real owner, and the unpaid purchase money as a mere incumbrance upon the land, the analogy is perfect between such an incumbrance upon an equitable right or title to the land itself, and a legal incumbrance upon the legal estate in real property devised. And as the payment of the mortgage by the testator in the last case, would not operate as a revocation of the devise at law, the payment of the purchase money in the first case will not operate as a revocation of the devise in equity. If therefore the testator had died after the payment of the whole purchase money and before the actual conveyance to him of the legal estate, the right to call upon the vendors for a specific performance of the contract would have vested in the complainants exclusively, by virtue of the devise ; and neither the heirs at law rior the personal representatives of the testator would have had any interest whatever in the land. But in consequence of the technical rule of law, which existed previous to the adoption of the revised statutes, that after acquired lands could not pass by any form of devise, whatever might have been the intention of the testator, the legal title, which was vested in him in this case after the making of the will, descended upon the heirs at law, as the mere trustees thereof, for the use of the devisee to whom it belonged in equity. The legal and equitable interests as to one undivided moiety of the lot thus uniting in Mrs. Clapper, her title thereto became perfect, at law as well as in equity, as to one half of the premises devised to her by her father; and as to the other half she has a valid claim, in equity, to call upon the heir at law, upon whom the legal title has descended, to release to her such legal title, so that her right to the whole lot, under the will of her father, may be made complete at law as well as in equity.

The cases which have been referred to on the argument, for the purpose of showing that a material change in the nature of the testator’s legal or equitable interest in real estate after the date of his will is an implied revocation of a devise of such estate, are wholly inapplicable to the present case. They all proceed upon the principle that the testator has done some act which is inconsistent with his previous intention, as evidenced by the will, to give the particular property to the devisee. Upon the principle of equitable conversion, where a testator devises land which he has contracted to purchase, the presumption is that he intended that the devisee should take the entire beneficial interest therein discharged of the incumbrance of the unpaid purchase money, and with full power to claim a specific performance of the contract by a conveyance of the legal title from the vendor. Hence the devisee, previous to the revised,statutes, might call upon the personal representative to payoff the purchase money which remained unpaid at the death of the testator, with the personal éstate of the decedent. The payment of the purchase money and the taking of the conveyance of the legal estáte by the testator in his life time, was therefore perfectly consistent with his original intent that his devisee should have the whole beneficial interest in the. land, and was not, in equity, a revocation of the equitable devise. This court therefore compels the heir, upon whom the legal title has been cast by operation of law as the mere naked trustee of the devisee of the estate, to do what the vendor himself would have been bound to do if the legal estate had not passed from him before the death of the testator. The whole of this subject is so fully examined by the late Lord Chancellor of Ireland, Sir Edward Sugden, in his very valuable treatise upon the law of vendors and purchasers', that an attempt to go into an examination of the numerous cases cited or referred to by him would be a useless waste of time. In reference to the particular question now under consideration, he says, “ Although the estate may, subsequently to the will, be conveyed or surrendered either to the purchaser or to a trustee for him, yet that will not operate as a revocation of the will. The legal estate will of course descend to the heir at law, and he will, in equity, be deemed a mere trustee for the devisee.” (Sugd. Law of Vend. 167 and note.) In the present case, as the legal estate, which was conveyed to the testator after the making of the will, descended to the heir as trustee for the equitable devisee, the latter had no defence at law to the ejectment suit brought against her husband, who was seized of the equitable interest therein in her right. The complainants were therefore compelled to apply to this court for relief against this inequitable proceeding on the part of the defendant; and the vice chancellor has very properly decreed a perpetual injunction against the further prosecution of any suit at law to recover the possession of the premises, and charged the defendant with the costs to which the complainants had been subjected in defending their rights. And I think he should have gone still further and decreed a conveyance to Mrs. Clapper of the legal title to the moiety of the premises which had been cast upon the defendant as one of the heirs at law.

The decree appealed from must be affirmed with costs.

The original decree in this cause had been enrolled before the vice chancellor previous to the appeal; and a doubt having arisen as to the manner of enrolling the decree of affirmance in such a case, an application was made to the chancellor on the subject.

The Chancellor decided that in such cases, where the proceedings were directed to be remitted to the vice chancellor, the decree of affirmance must be added to the original enrolment in the clerk’s office and must be signed by the vice chancellor. But where the decree of affirmance did not direct the proceedings to be remitted to the vice chancellor, as where the whole case was brought up by the appeal and remained before the chancellor, the original enrolment must be transmitted by the clerk to the register or assistant register with whom the decree of affirmance was entered ; and the last mentioned decree must be added to such enrolment of the original decree, and must be signed by the chancellor.


text:
    Cook and wife vs. Lee.
    1836. August 22.
    Where the real estate of infants was sold under a judgment in a partition suit commenced in the supreme court, under the act of 1813, the guardian ad litem of the infants and not their general guardian was the proper person to receive and invest their' shares of the proceeds of the sale.
    And where the commissioners who sold the property, instead of paying the infants’ shares of the proceeds to their guardian ad litem in the suit, paid such shares to the general guardian, who wasted the same and became insolvent, the guardian ad litem not having directed such payment or assented to the same; Held, that the remedy of the infants was against the commissioners who made the payment without authority; and that the guardian ad litem was not answerable for the loss, it not appearing that the commissioners were irresponsible.
    This was an appeal from the decision of the vice chancellor of the fourth circuit. The defendant, Joel Lee, Was appointed by the supreme court, guardian ad litem of the complainant Mary Ann Richie, now the wife of the complainant Truman Cook, in a partition suit in that court. The property was sold under an order of the court, and the commissioners, instead of paying the infant’s share of the proceeds to the guardian ad litem, paid the same over to the general guardian who had been appointed by the surrogate ; and who afterwards squandered the fund and became insolvent, so that the same was lost, except a small sum which was saved by the appointment of a receiver. The object of the bill was to compel the guardian ad litem to account for the proceeds of the sale, on the ground that the same had been lost through his negligence. The defendant insisted, by his answer, that the general guardian was the proper person to receive the infant’s share, of the proceeds of the sale, under the statute then in force; and that as the guardian ad litem had never received any part of the fund from the commissioners, he was not bound to account for the same. The vice chancellor decreed a dismissal of the complainants’ bill; from which decision they appealed to the chancellor.

      J. Ellsworth & S. Stevens, for the complainants.
    The guardianship of the defendant was a trust cognizable by this court. The trust embraces the receipt of the infant’s share of the proceeds of partition sale, as well as the other duties required of the guardian. The defendant was guilty of a breach of trust, 1. In consenting to file the report of sale without reading before supreme court; 2. In consenting to an erroneous rule for distribution; 3. In not applying to the commissioners for the proceeds of the sale, when due, in 1814 % 4. In consenting to the payment to Sillick and by bond and mortgage.
    The defendant is liable to account for the proceeds of partition sale with interest, deducting the costs of partition sale and payments for dower. The complainants are not bound to accept any account of Sillick; but the defendant may be substituted for complainants, and be entitled to sue Sillick or any other person, on giving an adequate indemnity against costs. The defendant ought to pay the costs of appeal and the costs of suit in the court below,

      Levi H. Palmer, for the defendant.
    There is no equity in the bill. The powers and duties of guardian ad litem commence and end with the litigation. He cannot be converted into a general guardian. The defendant has not received the money, and it is not alleged that the money is lost. The defendant, who was the guardian ad litem, has faithfully discharged the trust reposed in him. The general guardian received the money. The commissioners in partition paid the money to the general guardian. If the defendant is liable, the commissioners are liable over to him, and they ought to be made parties. The defendant is entitled to costs.
   The Chancellor.

Several questions were raised upon the argument, as to the regularity of the proceedings in the partition suit, but as those questions relate to the validity of the title of the purchaser, who was the plaintiff in the partition suit, rather than to the liability of the guardian ad litem, it is not material, and it would perhaps be improper, that I should express any opinion upon them here. If the proceedings in the partition suit have been so defective that the legal title did not pass to the purchaser under the deed of the commissioners, the remedy of the complainants is against other persons for the recovery of the land itself. And if the commissioners have paid over the proceeds of the sale to the wrong person, the guardian ad litem is not answerable for their acts. They alone are liable to the complainants, unless the guardian has done some act by which he may be considered as having assented to the misapplication of the fund ; in which case he may be personally responsible to the complainants if they cannot collect it from those who are primarily liable therefor. The only two questions to be considered, therefore, are, whether the commissioners were authorized to pay the money to the general guardian ; and if not, whether this defendant has assented to the payment of the money to the wrong person.

The question as to the right of the general guardian to receive the proceeds of the sale in the partition suit was deliberately examined and settled in this court by Chancellor Sanford, in the case of Muir v. Wilson and others, (Hopk. Rep. 512.) The proceedings in the partition suit in that case were under the act of 1801, (1 R. L. of 1801, p. 545, § 5, 6,) which, in this respect, was substantially the same as the act of 1813. The general guardian of the infants was appointed guardian ad litem in the partition suit, and the proceeds of the infant’s share of the property was paid over to the guardian under the order of the court. The guardian having squandered the money, the question arose whether he could be considered as having received the money as general guardian, so as to make his sureties upon his appointment as such answerable for the proceeds of the real estate. And this court decided that he was not authorized to receive the proceeds of the sale in the partition suit, in his character of general guardian; and that his sureties upon the appointment as guardian ad litem were alone answerable for the proceeds of the infant’s real estate, the guardian being insolvent. I have no doubt that this is the correct construction of the statute, and that the commissioners in the present case paid over the infant’s share of the money to her general guardian without authority.

I have not been able to find any evidence in this case that the money was paid over to the general guardian by the direction or with the assent of the defendant. He was probably under the same erroneous impression as the commissioners, as to the right of the general guardian to receive the money; and supposing his duty as guardian ad litem had terminated when the property had been sold for its fair value, he left the commissioners to dispose of the fund as they were advised. Even if the guardian ad litem would be answerable for a loss of the money, by his neglect to call upon the commissioners for the payment thereof to himself after they had paid it to the wrong person, he cannot be made liable in the present suit; as there is no evidence that the commissioners are insolvent so that it cannot be collected from them. Neither do I find any allegation to that effect in the complainants’ bill.

The decree of the vice chancellor was therefore right, and must be affirmed, with costsi


text:
    Sanders and Groot vs. Marcelious and another.
    1836. September 20.
    Where a motion to discharge a ne exeat was granted with costs, but before such costs were made out the complainants stipulated to dismiss their bill with costs to the adverse parties ; Held that the costs upon the motion should be taxed with the general costs in the cause, and that the defendants’ solicitor was not entitled to the extra expense of making out and taxing two separate bills of costs.
    The solicitor of the guardian ad litem of an infant is not entitled to charge for a copy of the order appointing the guardian, to be served on the adverse party. The service of a notice of such appointment is all that is necessary.
    A petition for the appointment of a guardian ad litem for an infant need not, if properly drawn, contain more than two or three folios, including the jurat; and where the solicitor charged and the taxing officer allowed 18 folios therefor, it was held to be extortionate and oppressive.
    Where several subjects are embraced in the same notice the solicitor is not entitled to charge for drawing and serving more than one notice.
    Where a suit is discontinued before the putting in and service of an answer, if the defendants’ solicitor on taxation claims an allowance for drawing and preparing copies of the answer, he must, in addition to his affidavit that the draft of the answer was prepared and copies thereof made before he had notice of the discontinuance of the suit, produce such answer before the taxing officer for the inspection of the adverse party.
    This case came before the chancellor upon cross applications for a retaxation of the defendants’ costs. A writ of ne exeat was allowed upon the filing of the bill, and the guardian ad litem of one of the defendants, who was an infant, was also the solicitor for the other defendant. The writ of ne exeat was afterwards discharged, with costs, before answer ; and the complainants were permitted to discontinue their suit without prejudice to their right to file a new bill. Two days thereafter then solicitor served upon the agent of the defendants’ solicitor a stipulation to dismiss their bill with costs. The defendants’ solicitor afterwards made out and served two distinct bills of costs, with notice of taxation; one for the costs of the special motion, and the other for the general costs of the suit; and the bills were taxed separately as two distinct bills, although the complainants’ agent objected that only one bill of costs was necessary or proper. The agent also objected to the allowance of any item on taxation without some proof that the service was actually performed ; but, in regard to many of the items, the taxing officer decided that the assertion of the defendants’ solicitor that the services had been performed was sufficient evidence of the fact. An affidavit in support of some of the items was produced on the taxation, but the agent could not obtain a copy thereof from the taxing officer, the same having been mislaid, or taken away by the defendants’ solicitor. Among other items allowed upon the taxation, was a petition of 17 folios, and a copy and engrossment thereof, and one additional folio for the jurat, to obtain the appointment of the guardian ad litem. The taxing officer also allowed for the draft, engrossing, and copy to serve, of an answer of 180 folios, which had not been served upon the complainants’ solicitor, or filed; upon an affidavit that it contained that number of folios, and without giving the complainants’ agent an opportunity to examine the answer to see whether the matter contained therein was relevant or proper, or whether the whole which was charged as draft was original matter. Three items were disallowed by the taxing officer, as to which the defendants solicitor applied for a relaxation.

      J. Rhoades, for the complainants.

      A. Taber, for the defendants.
   The Chancellor.

Neither of the items as to which the defendants’ solicitor asks a relaxation were properly taxable against the complainants, even if he had produced evidence before the taxing officer that the services were actually performed. But as the complainants’ agent objected to the allowance of any item without some proof that the services had been performed, that of itself was a sufficient ground for rejecting those items, in the absence of such proof. Copying of the order appointing the guardian ad litem, and serving the copy on the complainants’ solicitor was an unnecessary proceeding. The charge in the bill of costs, of the notice of the appearance of the guardian, but which should have been notice of the appointment of such guardian, was the only proper charge.

As the statute prohibits the allowance of á charge for any service which has not been actually performed, if two subjects are embraced in the same notice, only one notice can be allowed if objected to on the taxation. The affidavit of the defendants’, solicitor shows that the motion to discharge the ne exeat was not made in term; and he was not therefore, entitled to the charge of one dollar and fifty cents. But if his agent, actually attended upon the argument of the motion, and was hot the same person to whom an allowance^ made as counsel upon the same motion, he was entitled to an allowance of one dollar for such attendance ; according to the decision of this court in Rogers v. Rogers, (2 Paige’s Rep. 471.) The defendants’ motion for a retaxation must be denied, with costs.

Many of the items which were allowed upon the taxation were not properly taxable against the complainants, even if there had been an affidavit of the solicitor of the defendants that all the services charged in the bill had been actually performed. But as there must be a retaxation upon the ground that the taxing officer proceeded without the proper evidence of the performance of the services charged, I shall only advert to a few of those items. The solicitor was not entitled to the extra expenses produced by malting out separate bills of costs. The bill being dismissed with .costs before the costs upon the motion to discharge the ne exeat were made out, there was no good reason for charging those costs in a separate bill, except for the mere purpose of getting the extra costs of a separate proceeding to collect the same. Such a useless multiplication of costs is not to be encouraged or tolerated, and the whole must be made out and taxed in one bill. The proper course for the defendants was to file the complainants’ stipulation, and to enter an order that the bill be dismissed with costs, and then to get his costs taxed' and to collect them upon the execution. ,

As the answer had never been served on the complainants’ solicitor, or been seen by him, the defendants’ solicitor, in addition to the affidavit that the draft and copies were actually made before he had any notice of the complainants’ intention to discontinue the suit, should have produced the answer itself before the taxing officer; so that it could be seen whether it was unnecessarily prolix, and that the whole which was charged as the draft was actually such and not papers and documents inserted therein in hcec verba. The allowance of 18 folios for the petition and jurat to obtain the appointment of the guardian ad litem, was exorbitant and oppressive. The whole petition, if properly drawn, could not have exceeded two or three folios including the jurat. And the jurat should not have been allowed as a separate item in the bill of costs. (2 Paige’s Rep. 51.)

After the complainants’ agent had objected to the allowance of any item until the defendants’ solicitor produced evidence that the service had been performed, (and under the circumstances of this case I think he was justified in requiring strict proof,) the taxing officer had no right to allow any item upon the mere assertion of the defendants’ solicitor that the service had been performed. The proper course for the solicitor presenting the bill of costs for taxation, when such an objection is made, is to annex to the same a short affidavit that the services charged therein have been actually performed; that the number of folios therein charged do not exceed the actual number contained in the pleadings and proceedings, according to the best of his knowledge and belief; and that such services were necessary, or that he believed them to be necessary at the time they were performed. Such an affidavit when properly drawn will not exceed two or three folios ; and if it is made necessary by the objections of the adverse party it may be added to the bill by the taxing officer.

The application of the complainants for a retaxation must be granted, but without costs to either party. The costs must be retaxed before the vice chancellor of the seventh circuit. The defendants’ solicitor must make out a new bill of the costs upon the dismissal of the bill, including therein the costs of the motion to discharge the ne exeat and the costs of entering and enrolling the decree of dismissal and of the execution thereon, and must annex thereto his affidavit of the correctness of the several items, in the form above suggested; and he is not to be allowed upon the taxation for the costs of the answer unless he delivers the copy which has been prepared for the complainants to their solicitor at least eight days before the time appointed to attend before the vice chancellor upon such retaxation. Either party is to be at liberty to have the costs of opposing the defendants’ application for a retaxation, offset against the costs upon the dismissal of the bill.


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    Williams, appellant, vs. Purdy, respondent.
    Where an executor or administrator is called on to account before a surrogate, he must verify his account by his oath or affidavit, and in such oath or affidavit he must state that such account contains, according to the best of his knowledge and belief, a full and true account of all his receipts and disbursements on account of the estate of the decedent, and of all sums and property belonging to such estate which have come to his hands, 'or which have been received by any other person by his order or authority for his use; and that he does not know of any error or omission in the account to the prejudice of any of the parties interested in the decedent’s estate.
    Where an executor or administrator wishes to be allowed for payments and disbursements of $20 and under, for which he is unable to produce proper vouchers or other evidence, he must specify in the account the times when, the persons to whom, and the purposes for which such several disbursements or payments were made ; and must also, as to the sums thus charged, swear positively that they have been actually paid or disbursed by him as charged in the account.
    An executor or administrator claiming a debt due to himself from the estate of the testator, cannot be allowed to prove it on his own oath only. But he must, like any other creditor who comes in to establish a debt against the estate, make the usual oath that the debt is justly due to him from the estate after allowing all payments and all proper discounts and offsets. And he must also produce to the surrogate legal evidence of the existence of the debt, unless the same is admitted by those who arc interested in the estate.
    The object of requiring the usual affidavit of a creditor, in support of his claim, is not to prove the debt, as it is not legal evidence for that purpose. But it is to prevent the exhibition of fictitious claims against the estate, which have been discharged by the decedent in his life time; and also to prevent the allowance of claims against which a legal offset exists, known only to the party presenting such claim.

      1836. September 20.
    This was an appeal from the sentence or decree of the surrogate of the county of Westchester, upon the final settlement of the account of an executor. Upon the return of the citation to account, the respondent, N. Purdy, jun., brought in his account with the estate, and therein credited himself with the sum of $219,27, as and for a debt due to him from the testator, for monies lent and services rendered to the testator in his life time. Having failed in proving this indebtedness by any competent testimony, he insisted that the general affidavit annexed to the account was sufficient to authorize the allowance of this charge, unless the legatees and next of kin could prove its falsity. The surrogate being of this opinion, allowed the charge without any other proof of its correctness. The counsel for the respondent neglected to appear upon the hearing of the appeal, and the same was argued ex parte, by

      W. Silliman, for the appellant.
   The Chancellor.

The surrogate erred in supposing that the affidavit of the executor, annexed to the account in this case, was presumptive evidence of the existence of the debt claimed to have been due from the testator to the respondent. The affidavit merely states that the account to which it is annexed “ is a correct and true statement and account of all the proceedings of the deponent, as one of the executors, &c. according to the best of his knowledge, information and belief.” This would not be sufficient to authorize the allowance of a disputed item of twenty dollars or under, without a voucher, even if the payment was charged as having been made to a third person. For to authorize such an allowance upon the oath of the executor alone, he must swear positively to the fact of payment. (2 Bro. Ch. Pr. 822. 2 R. S. 92, § 55.) When an executor or administrator is called upon to account before the surrogate, he is bound to verify the account by his oath or affidavit, stating in substance that such account contains, according to the best of his knowledge and belief, a full and true account of all his receipts and disbursements on account of the estate of the decedent, and of all sums and property belonging to the estate which have come to the hands of such executor or administrator, or which have been received by any other person by his order or authority for his use; and that he doth not know of any error or omission in the account to the prejudice of any of the parties interested in the estate of the decedent.. And if he wishes to be allowed for payments and disbursements of $20 and under, for which he is unable to produce proper vouchers or other evidence, he must specify in his account the times ‘when, the persons to whom, and the purposes for which the several payments or disbursements were made; and he must add to his affidavit a positive allegation that the said several sums have been actually paid or disbursed by him, as charged in the account. But this general affidavit will not authorize the allowance of any items exceeding twenty dollars, if the same is disputed, without the production of the proper voucher showing the expenditure of the money, or other legal evidence of its payment. Neither is it sufficient in any case to authorize the executor or administrator to retain as for a debt due to himself from the decedent. The 33d section, of the article of the revised statutes relative to the duties of the executors and administrators in the payment of debts and legacies, (2 II. S. 88,) appears 'to con*, template an application to the surrogate in the first instance, by the executor or administrator, to determine as to the validity of a claim of indebtedness to the latter, before he shall be allowed to retain for such debt, or his proportionate part thereof. And upon such application he must produce to the surrogate legal evidence of the existence of the debt, in addition to his own oath that it is justly due after allowing all payments and all proper discounts and offsets; unless such debt is admitted by those who are interested hr the estate. If the executor or administrator, instead of proving his debt before the surrogate in the first instance, claims an allowance therefor upon the final settlement of his account, he is in the same situation of any other creditor , who comes in before the surrogate to claim a debt against the estate. He must, therefore, like other creditors, not ' billy verify the justice of his claim by his oath, but if it is objected to, he must establish it by legal evidence, in addition to his own oath; The object of requiring the affidavit of the creditor in such cases' is not to prove the existence of the debt, as it is not evidence for that purpose. But it is to prevent the exhibition of fictitious claims against the estate of the decedent, which have been discharged by him in his life time ; and also to prevent the allowance of claims against which there existed a legal offset, known only to the party presenting such claim, and which those who are interested in the estate of the decedent may be unable to establish by legal proof;

So much of the final sentence or decree of the surrogate made on the 13th of June, 1832, as declares that the rendering of the account on oath by the executor, containing the charge of $219,27 as due to himself by the decedent, was prima facie evidence of its correctness, and which allowed the amount of such charge to the executor without any other proof of the existence of the debt, must, therefore, be reversed, with costs. And the sentence or decree must be so modified as to declare that the balance in the hands of the respondent, at the date of the original sentence or decree, was $3539,95. The aggregate amount to be distributed, therefore, is $7201,09, with the interest thereon from the 13th of July, 1832, the time appointed by the surrogate for the payment of the several distributive shares to the legatees. The decree must apportion the amount among the several residuary legatees accordingly, and direct the payment of interest upon the several distributive shares from and after the expiration of thirty days from the date of the original decree of the surrogate.

The appellant is to be at liberty to have the decrée enrolled in this court, so that he may have an execution here for the recovery of his costs; and the several distributees may also take out execution here to compel payment of their several distributive shares, with the interest thereon until the same are paid;


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    Christy vs. Christy and others.
    1836. September 20.
    Where one of three now resident defendants, against whom a bill in partition had been taken as confessed, and the master’s report upon the title bad been obtained, was permitted to come in and contest the complainant’s right, upon payment of the costs of the proceedings, to take the bill as confessed against him and of the subsequent costs of the complainant consequent upon the order to take the bill as confessed ; Held, that the absentees were not in default until the expiration of the time limited in the order for publication, and that the costs of the proceedings to take the bill as confessed against such defendant to which the complainant was entitled, commenced with the affidavit of the defendant’s default to appear and answer within the time thus limited; that the defendant, who was permitted to come in and defend, was only chargeable with one-third of the costs of proceedings which remained good against the two other absentees; but that he was chargeable with the whole costs of the reference as to title, as the complainant must proceed de novo before the master if this defendant did not succeed in his defence.
    The order, in a partition suit in chancery, to take the bill as confessed as against an absent or unknown defendant or owner, is an order of course ; and it may be entered in the office of the register, or clerk, upon filing the affidavits of publication and of the neglect of the absentee, or unknown owner, to appear and answer within the time allowed by the order for publication.
    Tbe allowance in the fee bill for drawing instructions for the examination of a witness, is not applicable to the case of a witness examined before the master on a reference.
    A counsel fee is not taxable for arguing or attending to argue before tho master upon an ex parte reference, on a bill taken as confessed, where the adverse party has not appeared in the cause and is not summoned to attend on the reference. To authorize such an allowance to counsel there must either be an actual argument with the adverse party, on the reference, or the counsel must have attended, pursuant to notice, under the expectation that such an argument was to take place before tbe master.
    Where a complainant is examined as a witness in bis own favor, in a proceeding against an absentee, he is not entitled to charge for the expense of subpeening himself to attend before the master on the reference, or for his fees as a witness.
    Whether the provisions of the revised statutes, authorizing tbe master upon a reference against an absentee to receive the testimony of the complainant as evidence, under the direction of the court, is applicable to the case oí a reference as to title in a partition suit, where some of the defendants have beén proceeded against as absent or unknown owners 1 Q,itere.
    This was an application for the re-taxation of a bill of costs, payable under an interlocutory order of the court. The suit was commenced for the purpose of making partition of certain real estate which the complainant claimed to hold, jointly with the defendants, as one of the heirs at law of his father; and three of the defendants who resided out of the state were proceeded against as absentees. The time for the appearance of the absentees having expired, and the other defendants having suffered the bill to be taken as confessed, the complainant’s solicitor made a special application to the court for an order to take the bill as confessed against the absentees, and to refer it to a master to take proof as to the complainant’s title and to ascertain the rights of the several parties in the premises whereof partition was sought; and for leave to examine the complainant before the master, to prove certain allegations in the bill as against the absentees. The application was granted accordingly, and the whole was embraced in one special order. The master having proceeded to execute the order of reference and made his report thereon, Asa Christy, one of the absentees, who claimed the whole of the premises under the will of his father, applied to the court for leave to come in and answer the bill. And he was permitted to do so, “ upon the payment of the costs of the complainant’s proceedings to take the bill as confessed against him, and the subsequent costs which were consequent upon the order to take the bill as confessed.” In the bill of costs made out under this order, the complainant claimed the whole costs of the proceedings against the three absentees who were proceeded against jointly; including the printer’s bills and the costs of obtaining the original order to advertise, &c. The taxing officer, after rejecting several items of the bill as not legally taxable, decided that as the three absentees were proceeded against jointly, the complainant was only entitled to one-third of the costs of the joint proceeding, as against the defendant who had been let in to answer.
    J. Rhoades, for the complainant.

      M. T. Reynolds, for the defendant.
   The Chancellor.

To ascertain the intent and meaning of that part of the order which directs the payment of the costs of the complainants proceedings to take the hill as confessed against the defendant who is permitted to come and defend the suit, we must advert to the situation and rights of the parties at the time the several proceedings took place for which costs are claimed under the order, No process was ever served upon the absentees, to appear and answer, and they had no actual or even constructive notice of the commencement of the suit, until after the publication of the notice and the expiration of the time allowed to them by the order of the court to appear and answer. All the proceedings of the complainant previous to that time were in the nature of a substituted service of process to appear and answer. The bill could not be taken as confessed until the order for publication had been entered and the publication had, agreeably to the directions of the statute. But the entering of the order, or the publication thereof, was no more a part of the proceedings to take the bill as confessed against the absentees, than the personal service of the subpoena upon the resident defendants was a part'of the proceedings to take the bill as confessed against them. No proceedings could be instituted to take the bill as confessed against either class of defendants until they had made default in appearing, or in answering the bill after they had appeared. And if one of the resident defendants had been let in to defend, upon the terms in this order, no person who had any knowledge of the course of practice on this subject in courts of justice, would have thought of charging the costs of the subpoena, or of the service thereof, as a part of the costs of the proceedings to take the bill as confessed. The absentees were not in default until after the expiration of the time limited in the order for publication, as they were entitled, as a matter of course, to appear and answer at any time previous thereto. And the proceedings, of the complainant to take the bill as, confessed against this defendant, must, according to the true construction of the order permitting him to corne in and defend the suit, be deemed to have commenced with the drawing of the affidavít of his default to appear and answer within the time limited in the original order for publication. Not only two • thirds, but the whole of the twelve first charges in the bill of costs, should therefore have been rejected by the taxing officer.

The taxing officer was right in charging this defendant with but one-third of the costs of the proceédings to take the bill as confessed against three absentees jointly, as those proceedings, as to two of the absentees, would have been necessary even if this defendant had appeared and answered within the time originally limited for that purpose ; and the proceedings as to those two are not abrogated or rendered useless by the subsequent order permitting this defendant to come in and defend the suit for himself only. If the complainant succeeds in the suit, the other two-thirds of the costs of those proceedings will be allowed to him as part of the costs in the cause ; and this defendant will thus be charged with his proper proportion thereof as one of the tenants in common of the premises of which partition is sought. And if the complainant does not hold the land in common with the other defendants, he has no just claim to those costs as against any of the defendants.

The taxing officer erred, however, in not allowing to the complainant the whole costs of the proceedings before the master upon the order of reference. As these proceedings before the master were ex parte, and this defendant has an interest therein, if he does not succeed in defeating the complainant’s suit altogether the reference must be proceeded in de novo, as to some if not all of the objects of the reference. These costs were consequent upon the order to take the bill as confessed against this defendant; and being rendered inoperative and useless in consequence of his coming in and defending the suit, they were properly taxable against him under the order granting him that indulgence.

The order to take the bill as confessed against an absent defendant in a partition suit, in this court, is an order of course ; to be entered in the office of the register, or clerk, upon filing the affidavits of publication and of the neglect of the defendant to appear and answer. The taxing officer was therefore-right in disallowing the charge for solicitor’s and counsel fees attending upon the order to take the bill as confessed against the absentees, although it was actually entered as a special order. Where a party makes. an unnecessary application to the court for a special order, where an order of course might have been entered, he is only to be allowed, upon taxation, the ordinary costs of a common order.

The charge for drawing instructions for the examination of witnesses before the master was properly overruled. The allowance in the fee bill for drawing instructions for the examination of a witness is not applicable to such a case. The. charge for attending the master with the order of reference, is the same in substance as a charge for attending the master to obtain his signature to a summons, which this court has heretofore decided is not provided for by the. fee bill. (2 Paige’s Rep. 496.) The complainant was not entitled to charge a counsel fee for arguing before the master on an ex parte reference, upon a bill taken as confessed, where the adverse party had not appeared in the cause and was not summoned to attend. To authorize an allowance to counsel for arguing, or appearing to argue before a master, there must either be an actual argument with the adverse party on the reference, or the counsel must have attended, pursuant to notice, under the expectation that such an argument was to take place before the master.

Twelve and a half cents was the proper allowance for serving the subpoena upon each witness. And the charge for the attendance of the complainant himself as a witness was properly disallowed. It is' not necessary in this case to determine whether the 127th section of the title of the revised statutes relative to the court of chancery, (2 R. S. 186,) which authorizes the master to receive the testimony of the complainant in certain cases, is applicable to a proceeding against the absent deféndants, or unknown owners, in a partition' suit. But admitting this was a case in which the testimony of the complainant could be received to prove • the extent of his interest in the premises of which partition was sought, he was not entitled to pay for his attendance as a witness, or to an allowance for taking out a subpoena and serving it on himself. The charge of the master of SI5 for superintending the survey, in addition to his taxable fees upon the reference, was also properly rejected by the taxing officer.

If the expense of this survey was necessary to enable the master to determine the question whether the premises were capable of a division, or to ascertain the proportion of the premises which belonged to the complainant, in reference to the alleged advancement to the two absentees who have not yet appeared in the cause, although it was a necessary disbursement in the suit it was not a disbursement which was consequent upon the taking of the bill as confessed against this defendant, or which will be rendered nugatory by his answer if the complainant succeed in the suit. Only one-third of that disbursement is therefore taxable, tinder this order, if any part of it can properly be allowed ; and the other two-thirds thereof will be recovered by the complainant upon the final decree for partition, as a part of the general costs in the cause.

The costs must be re-taxed by the vice chancellor of the fifth circuit upon these principles ; and neither party is to be allowed costs as against the other upon this application.