text:
    The Mohawk and Hudson Rail Road Company vs. Clute and others.
    A. rail road corporation is not liable to taxation upon its capital, as personal estate, for that part thereof which is vested in the landsrover which the Toad runs, and in the railways and other fixtures connected therewith; but that part of the corporate property is to he taxed in the several towns and wards in which the same is situated, as real estate, and at its actual value, at the time of the assessment thereof.
    The capital stock, of a rail road corporation, which is not invested in its railways, or other real estate, is to be taxed, as personal property, in the town or ward where the principal office or place for transacting the financial concerns of the company is situate.
    Where the presidentof a rail road corporation furnished the statement, required by the statute to be delivered ,to the assessors of the town in which the ‘corporation was liable tobe taxed upon its capital, but by mistake as to iba law, omitted to deduct, as a part of the real estate of the corporation, that portion of its capital which was invested in the railways and other fixtures, ‘Mid the corporation was assessed and taxed in that town, in conformity with such statement, the court of chancery refused to restrain the collection of the tax.
    The usual clause, in an act of incorporation, declaring the stock of the company personal estate, does not change the character of the property which Is held by the company m its corporate capacity.
    A party who is taxed in two different towns fer the same property, which is only liable to be taxed-once, and where it is doubtful to which town the right to the tax belongs, may file a bill of interpleader to compel the collectors of the tax to settle the right between themselves.
    The complainant in a bill of interpleader, must offer to bring the fund in dispute into court; and he must shew that he is ignorant of the rights of the different claimants, or at least that there is some doubt as to which of them is entitled to file fund, so that he cannot safely pay it to either.
    A bill of interpleader cannot be sustained where, from the bill itself, it appears that one of the defendants is clearly entitled to the debt or duty claimed, to the exclusion of the other.
    "Where a complainant is entitled to equitable relief against the ownerof property, if the legal title to the property is in dispute between two ormore persons, so that he cannot ascertain to which of them it actually belongs, he may file a bill for relief, against the several claimants, in the nature of a bill of int?rpleader.
    This case came before the-chancellor on an order to show cause why an injunction should not issue to restrain the defendants, the collectors of the town of Rotterdam, and of the second ward in the city of Albany, from collecting the taxes which had been imposed upon the capital stock of the complainant’s company, as personal estate, in each of those places. It appeared from the complainant’s bill, that their capital paid in was $750,000, the whole of which had been expended in real estate, which the company then held; considering their railway, and the land upon which it was laid, with the embankments, culverts, viaducts, fences, and other fixtures connected therewith, as real estate, within the meaning of that term in the chapter of the revised statutes which relates to the assessment and collection of taxes. And such railway, with the other real estate of the company, and the erections and fixtures connected therewith, was situated partly in the city of Schenectady, and partly in the several towns of Rotterdam, Bethlehem, Watervliet, and in the first, second and fourth wards of the city of Albany. It also appeared that ^ie P™ciPle °®cei or place for transacting the financial concems of the company, in the year 1833, was, and still is sitúa- ■ te(j at ^ie i-,eac| 0f inclined plane, near Schenectady, in the town of Rotterdam. And that in the summer of 1833 the president of the company, pursuant to the directions of the statute, (1 R. &r. 414, § 2,) delivered to the assessors of the town of Rotterdam a written statement, which was then supposed to be in conformity with the directions of the statute. By that statement it appeared that the whole capital stock of the company was paid in, of which $69,642,91 had been invested ii$ real estate, then owned by the company. The real estate was particularly described, but it did not include the railway or the land on which it was laid, with the fixtures connected with the same. In conformity with this statement, the assessors of Rotterdam assessed the complainants, in that town, upon the whole of their capital as personal estate, after deducting therefrom the amount vested in real estate, as therein mentioned; under which assessment, the supervisors after-wards imposed a tax upon the company of $2121,5C The assessors of the second ward of the ■ city of Albany, without any statement having been furnished to them by the complainants, also assessed the company in that ward, upon $730,000 of its capital stock, as personal estate ; under which last assessment, the board of supervisors of the county of Albany also imposed a tax upon the company to the amount of $5850. The complainants also alleged in 'heir bill that the principal office, or place for transacting he financial business of the company had never been kept in the city, or within the county of Albany. That, as they were now advised, the ■ statement made out and furnished by their president to the as- , sessors of Rotterdam, was made out and furnished under a mistaken and erroneous view of the facts; by which the amount of their capital stock which was invested in their railway and the various fixtures connected therewith, was returned as being liable to assessment as personal estate. Whereas the whole of the capital stock of their company was invested in what, as they were now advised, should have been considered as the real estate of the corporation, according to the true construction of the revised statutes; and that they were not liable to taxation on any part of their capital as personal estate, but only upon their real estate. That they had always been ready and willing to pay to the collectors of the town of Rotterdam and of the second ward in the city of Albany, such sums as could properly be charged as taxes upon the property of the company; and they, by their bill, offered to pay to such collectors respectively, such sums as were properly chargeable on the real estate of the company situate in their town or ward, or such other sum as this court should direct. But inasmuch as the boards of supervisors in the counties of Albany and Schenectady both claimed the right to tax the complainants upon their capital stock as personal estate, and the collectors of the said town and ward each claimed the right to collect the taxes so imposed upon the capital stock of the company, the complainants prayed that the! defendants might interplead, and settle and adjust their respective claims between themselves; and that the just or proper sums might be paid to such of the defendants as should appear to be entitled to the same. The bill also contained a prayer for general relief, and for a preliminary injunction, to restrain the different collectors from proceeding to collect the tax imposed upon the capital of the company, until the further order of the court.

      March 4.

      M. T. Reynolds, for the complainants.
    The case of Thompson v. Ebbetts, (1 Hopk. 272,) is an authority in support of this bill. The complainants have been assessed for the same property, to wit, their capital stock in two different counties. An illegal assessment has been made upon their capital stock as personal property, without deducting the sums paid out for real estate, as required by the revised statutes. The assessment in the city of Albany was wholly unauthorized. The assessment in Rotterdam was also improper. The statement furnished by the president of the company to the assessors of that town does not estop the complainants from now objecting to such assessment, as that statement was made out and served under a mistake of the facts, not of the law merely. It does not appear clearly from the bill that the principal office for transacting the financial concerns of the company was situated in the town of Rotterdam. If it was not there situated, then the assessment in that town cannot upon any ground be sustained. Both these assessments are contrary to law. The revised statutes only authorize such portions of the capital stock of the .complainants to be assessed, as personal property, as shall remain after deducting therefrom all sums paid out for real estate. In these assessments only a very small part was deducted from the capital stock as having been invested in real estate. The complainants are entitled to relief against both these assessments. This is a proper case for a bill in the nature of a bill of interpleader. It was not necessary for the complainants to offer to bring the amount of the tax into court. It was sufficient to offer to pay such sums as shall be decreed to be due. The rights of the defendants do not appear on the face of the bill. The bill only contains a history of the facts, and the complainants could not have paid the tax to either of them without hazard. The court never inquires into thedegree of hazard a complainant must run in paying the money or thing in controversy. To sustain a bill of interpleader, it is not necessary that the same identical sum of money, or chattel, should be claimed by the parties. Money may be invested in stock, and one party may claim the money and the other the stock. A complainant may connect with a bill of interpleader other grounds of relief, as has been done in this case. This court has jurisdiction in case of a tax illegally imposed. The objection to the jurisdiction of the common law courts is, that if a certiorari is brought, the whole tax list must be carried up to the court issuing the writ. A reference in this suit can be made to a master,, to assess the tax upon the real estate of the complainants in the second ward of the city of Albany, and in the town of Rotterdam, in the county of Schenectady, according to the rate of the per centage established by the boards of supervisors of the respective counties.

      A. C. Paige, for the defendants John F. Clute and the supervisors of the county of Schenectady.
    The complainants’ bill cannot be sustained as a simple bill of interpleader. Such a bill can only be sustained where two or more persons claim the »ame debt or duty by separate interests, in which the Complainant has no beneficial interest, and where he cannot determine the right without hazard to himself. (Atkinson v. Manks and another, 7 Cowen, 691. Bedell v. Hoffman, 2 Paige, 200. Mitchell v. Hayne, 2 Sim. & Stu. 63. Jeremy's ed. Mitf. Pl. 48, 49, 141. Jeremy's Eq. Jur. 346. Dungey v. Angove, 2 Ves. jun. 309 ; S. C. 3 Brown's Ch. Cas. 36. Slingsby v. Boulton, 1 Ves. & Bea. 333. 1 Mad. Ch. Pr. 174. Alrich v. Thompson, 2 Brown's Ch. Cas. 149, 150.) And the complainant, in a bill of interpleader, must be ignorant of the respective rights of the claimants. He must ask for no relief; and he must offer to bring the money or thing claimed into court. In this case the complainants are perfectly acquainted with the respective rights of the defendants, and they set forth such rights truly in their bill; they ask for relief against all the defendants, insisting that their capital stock is not liable to taxation as personal property; and they do not offer to bring the money claimed into court. (Thanet v. Paterson, Barnard. Ch. R. 247. Note to 1 Mad. Ch. Pr. 174, 3 Am. ed. 2 Ves. jun. 108, 109. Burnet v. Anderson, 1 Meriv. R. 404. 1 Har. Ch. Pr. 98. Jeremy’s ed. Mitf. Pl. 143, and note.) In this case also the defendants do not claim the same debt. The supervisors of Albany county claim one amount of tax, assessed upon one amount of capital stock, and the supervisors of Schenectady county claim another amount of tax, assessed upon another amount of capital stock; and the complainants show, in their bill, that there would be no hazard in paying the tax claimed by the collector in the county of Schenectady, as in him they establish, by their case, the clear legal right to demand it. Upon this bill alone the court can adjudge to whom the tax belongs. Not so in the case of Thompson v. Ebbetts et al., (1 Hopk. 272.) There can therefore be no necessity for any delay. A complainant cannot delay the payment of money due from him by merely suggesting a doubt to whom it is due. (Jeremy's ed. Mitf. Plead. 48, note.) Bridgman's Prac. Dig. 93, sec. 207.) In a bill of interpleader, the complainant must admit the right of each claimant to institute proceedings against him. (Jeremy's Eq. Jur. 347. 2 Merivale, 110. 2 Ves. & Bea. 334.) In this case the complainants deny this right as to all the defendants. In such a bill, also, the complainant must show a right to compel the defendants to interplead. This is not done by these complainants. Where, as is the case here, the priority or superiority of the different titles is clear, there can be no ground for a bill of interpleader. A party who is shown to have the preferable title, cannot be restrained from proceeding to enforce it. (Bowyer v. Ritchard, 11 Price’s Exch. R. 113, 115.) This bill shows that the complainants were properly assessed in Rotterdam, as in that town the principal office for transacting the financial concerns of the company was situated. (1 R. S. 415, 416, § 1, 2, 6, 10; Id. 389, § 6.) The assessors of that town made out their assessment roll in conformity to the statement furnished. (1 R. S. 390, § 8 ; Id. 393, § 19, 20, 21, 22; Id. 394, § 27 ; Id. 395.) If the assessment was too high, it should have been reduced by oath. (1 R. S. 392, § 15; Id. 416, § 8.) If the complainants are not liable to be assessed upon their capital stock as personal property, they are concluded, as to the assessment in Rotterdam, by the statement furnished by their president and served upon the assessors of that town. The only mode of exempting their capital stock from taxation as personal property, is by furnishing the statement required by the revised statutes, and stating therein the amount paid out for real estate. In the absence of this statement, the assessors of the town where the principal office is situated have the right to assess the entire capital as personal property. In this case, the assessment in Rotterdam, the assessors of that town having jurisdiction, is conclusive. It is like a judgment confessed. The statement of the complainants was the basis of the proceedings of the assessors of Rotterdam, and of the supervisors of the county of Schenectady. The mistake, if any, was on the part of the complainants, and was a mistake of law, and not of fact, which never protects a party. Here the complainants stood by and saw the assessment made, and did not object. Not having then objected, they cannot in equity object to the assessment now. The complainants have a perfect remedy at law against the collector of the city of Albany. The assessors there had no jurisdiction to assess the capital stock of the company. The collector will be a trespasser if he collects the tax. The case of Thompson v. Ebbetts is unlike this. There the bill was sustained as a strict bill of interpleader. A bill in the nature of a bill of interpleader can only be filed, where the chancery has jurisdiction of the subject matter, upon some other ground than that of its being a bill of interpleader merely. It must rest upon some ground of equitable jurisdiction. There is no such ground here. The bill must be dismissed, with costs. (1 Tamlyn’s Ch. Cas. 182.)

      J. M’Kown, for the supervisors of the county of Albany, and the collector of the second ward of the city of Albany,
    admitted that the assessment in that ward was illegal; and that it was made under a mistake as to the location of the principal office of the company.
   The Chancellor.

According to the decision of this court in Thompson v. Ebbetts & Welch, (1 Hopk. Rep. 272,) a person who is taxed in two different places, for the same property, when he is only legally liable to be taxed once, and when it is doubtful to which party the right to tax belongs, may file a bill of interpleader, to compel the collectors of the tax to settle the right between themselves. It appeared in that case that the amount at which the property of the complainant was assessed in the different places was not the same; the tax in one place being $142, while in the other it was only $126. But as the complainant is not permitted to litigate any part of the claim of either defendant, on a simple bill of interpleader, I presume that, in that case, the complainant either paid into court the largest sum, or paid to the collector of Rhinebeck the balance of the tax, imposed in that town, over and above what was claimed by the collector in New-York. (See Mitchell v. Hayne, 2 Sim. &. Stu. Rep. 63. City Bank v. Bangs, 2 Paige’s Rep. 570.) The bill in the present case, considered as a simple bill of interpleader, is defective in form; as the complainants do not offer to bring into court either the greater or the less amount taxed upon the company, as upon their capital, at the different places. They merely offer to pay to the respective collectors such amount as is properly chargeable to the complainants on account of their real estate, or as this court shall direct. This would be a very proper offer in a bill for relief, in the nature of a bill of interpleader; but it is not what is required in a bill which is filed for the simple purpose of asking the defendants to litigate and settle their conflicting claims between themselves. Independent of this objection as to form merely, this bill cannot be sustained as a bill of inter-pleader, as against the collector of Rotterdam and the board of supervisors of the county of Schenectady, because, if the complainants were taxable any where upon their capital stock, as personal estate, it is evident, from their own showing, that they were properly taxed in the town of Rotterdam, where their principal office, or place for transacting the financial concerns of the company, was situated; and that the tax imposed upon their capital in the second ward of the city of Albany, as personal estate, was illegal and void. It is not sufficient to sustain a bill of interpleader, that one of the defendants claims from the complainant the same debt or duty, when it appears from the bill itself that the debt or duty unquestionably belongs to the other, and that the complainant is not ignorant of their respective rights as between themselves. To authorize a complainant to call upon the different claimants to interplead, he must show that he is ignorant of their rights, or that there is some doubt, at least, to which of such claimants the debt or duty belongs; so that he cannot safely pay or render it to one, without some risk of being subsequehtly made liable for the same debt or duty to the other. (1 Eq. Cas. Abr. 80.) The only ground upon which this court assumes jurisdiction, in a simple bill of interpleader, is the danger of injury to the complainant, from the doubtful rights and conflicting claims of the several defendants, as between themselves. For this reason he must state his own situation, in reference to the fund in question or the duty to be performed, and the nature of the claims of the several defendants to the same. And when, from the complainant’s own showing, there can be no doubt in the case, the party who is manifestly entitled to the debt or duty claimed, is not to be subjected to the delay and expense of a chancery suit, before he can be permitted to receive what is his just due.

Where there are other grounds of equitable jurisdiction, however, as in those cases where the complainant is entitled to equitable relief against the legal owner of the property, if the legal title is in dispute, so that the complainant cannot ascertain to which of the parties to that controversy the property really belongs, he may file a bill, in the nature of a bill of interpleader, and for relief, against both of the claimants. Such was the case of Shotbolt v. Briscow, (Gilb. Eq. Rep. 18,) where the complainant who was entitled to the equity of redemption in land, filed a bill in the nature of a bill of inter-pleader, against two conflicting claimants of a debt which was a specific lien upon the premises.

In the case now under consideration, if the complainants are entitled to relief against a portion of the tax imposed upon them in the town of Rotterdam, in consequence of the alleged mistake in the statement furnished to the assessors, and the amount of such tax is to be apportioned between that town and the second ward in the city of Albany, according to the value of that part of the railway which lies in each, perhaps the complainant’s bill may be sustained, against these several defendants, upon the same principle. I shall therefore proceed to examine the question as to the rights of the several parties, and the effect of the alleged mistake of the complainants in the statement of their property, as furnished to the assessors of the town of Rotterdam, in 1833.

By the act incorporating the complainants’ company, the corporation is authorized to take, by purchase or donation, from the owners thereof, and to hold the lands over which their railway runs; and they take also the fee simple of all lands which were taken by them, for the use of their road, without, the consent of the owners thereof, upon the payment of the amount awarded to such owners, by the commissioners of appraisal, for the damages sustained by the taking of the Sands. (Laws of 1826, p. 187, § 7.) There is no doubt, therefore, that the lands thus purchased or acquired, are a part of the real estate of the corporation. It is true, this act of incorporation contains the usual clause, declaring the stock of the company personal property. But that provision merely relates to the nature, or character, of the property which the stockholders are to be deemed to have in the several shares of the stock of the company, as individuals ; and not to the character of the property held by the company in its corporate capacity, for the benefit of such stockholders.' In the first title of the - chapter of the revised statutes relative to the assessment and collection of taxes, ( 1 R. S. 378,) it is declared that the term reaj estatej wherever it occurs in that chapter, shall be construed to include land and all buildings and other fixtures, erected upon or affixed to the - same ; and the term personal estate, is to be construed to include such portion of the capital ' of incorporated companies, liable to taxation on their capital, as is not invested in real estate. And by the sixth section of the second title, (1 R. S. 389,) the real estate of all incorporated companies liable to taxation, is tó be assessed in the town or ward in which it lies, in the same manner as the real estate of individuals; and the personal estate of such companies is to be assessed in the town or ward where the principal office or place for transacting the financial concerns of the company, is situated. By the provisions of the fourth title of the same chapter, (1 R. S. 415, § 6,) the assessors, in making-up the assessment rolls, are directed to enter in the column of valuations of lands, or real estate, the actual value of the real estate of the company situate within their town or ward ; and in the column containing the valuations of the taxable personal property of individuals, they are to enter the amount of the capital of the company, paid in or secured, after deducting -from such capital, the amount paid out for all the real estate then owned by the company, wherever such real estate may be situated, and also making certain other deductions, on account of stock not liable to taxation. To enable the assessors to ascertain what part of the capital stock of the company is taxable as personal estate, the president, or other proper officer of the company, is required to deliver to them a statement, on oath, showing the amount of capital paid in or secured, and of the stock which is exempt from taxation; and containing a particular specification of all the real estate otyned by the company, the places where the same is situated, and the actual cost to the company. (1 R. S. 414, § 2.) When this chapter of the revised statutes was passed, and when it went into effect on the first of January, 1838, no railway had been constructed in this state, and only one charter been gran ted It is not surprising, therefore, that no special provisions in relation to such companies, should be found in the tax laws. They must then be governed by the general provisions relative to the taxation of the real and personal estates of corporations. Taking the several provisions, to which I have before referred, together, I think it is evident that such companies, whose stock, or the principal part thereof, is vested in the land necessary for their roads, and in their railways and other fixtures connected therewith, are taxable on that portion of their capital, as real estate, in the several towns or wards in which such real estate is situated; and such estate is to be taxed upon its actual value at the time of the assessment, whether that value is more or less than the original cost thereof. Such companies, of course, are not taxable upon their capital, as personal estate, except upon so much thereof, if any, as remains after deducting all their real estate at cost, including the railway itself. This is unquestionably the most equitable mode of taxing such property; as it gives to each town and ward through which the railway runs, its fair proportion of the tax imposed upon the property of the company. And very little idfconvenience can result to the corporation from this mode of assessment; as it will only be necessary for its officers to make a fair estimate of the cost of the railway, fixtures, and other real estate, in each town or ward, to enable them to furnish their annual statement, to the comptroller and to the assessors of the town in which the company is liable to be taxed on its capital. From such estimates, too, the assessors of the other towns and wards may generally ascertain the fair value of those portions of the railway which they are to assess, by comparing the original cost thereof with the value of the stock of the company, at the time of such assessment. And if any portion of the railway or other property is assessed beyond its value, the statute has given the same remedy to the officers of the company as to an individual, to reduce the amount of such assessment, by swearing to the actual value of the property. (1 R. S, 416, § 8.)

Such being the construction of the statute, in regard to the taxation of the property of railroad companies, it remains to be seen what are the legal and equitable rights of the parties to the present controversy. I presume it is a fact, although it is not stated in any of the papers before me at this time, that no part of the railway itself has been taxed as real estate, ira any of the towns or wards through which it runs. Notwithstanding this, it was admitted on the argument, that the taxation of the company on its capital stock, in the city of Albany, was illegal; and that it had been made under a mistake as to the place in which the personal estate of the company was taxable. The injunction must therefore be continued against "the collector- of the second ward of that city, to restrain the collection of that tax, which cannot legally be levied. The assessment in the town of Rotterdam, was perfectly legal on the part of the officers of that town ; as they were required by the statute, to assess the stock of the company as personal estate, in conformity with the written statement furnished by the president of the corporation. Neither can I see any equity in favor of those towns and wards, who may have neglected to tax the real estate of this corporation according to the provisions of the statute, to call upon the town of Rotterdam to relinquish to them a part of the fund which has arisén from this mistake of the complainant?; such other towns and wards not having been in any way injured or affected by such mistake. As it is now impossible to correct the mistake, as between the company and the town of Rotterdam, without depriving the town and county officers of a portion of the allowances which have been made to them by the board of supervisors, I doubt whether it would be proper for this court to interfere in behalf of the complainants, even if they had been legally taxed for their railway, as real estate, in the towns and wards through which it runs. I am inclined to think the proper course, in that case, would be to let them pay the tax to the-collector, and to apply to the legislature for relief, by a re taxation of the same amount, upon the town, or county, to remunerate their loss. This case would have been different, had the erroneous taxation been produced by a mistake of the officers of the town. Judging from the amount of the tax imposed upon this company in the city of Albany, when compared with the tax in the town of Rotterdam, it is probable the company will have less to pay than.they would if they had been properly taxed for the whole of their property, as real estate, in the towns and wards where it is situated. I think, therefore, the company will have no reason to complain, if they escape with the payment of the tax imposed upon them in the town of Rotterdam only.

The order to show cause, so far as the collector of Rotterdam and the board of supervisors of the county of Schenectady are concerned, must be discharged ; and the temporary injunction is dissolved as to them. The complainants may amend their bill, by striking out the names of those parties, or dismiss the same as to them, upon payment of their costs which have already accrued.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Patrick vs. Warner.
    A party who is committed to gaol on a precept in the nature of an attachment for the non-payment of coats, is entitled to the gaol liberties ; but he is not exempt from imprisonment under the act to abolish imprisonment for debt and to punish fraudulent debtors.
    This suit was instituted for the foreclosure and satisfaction of a mortgage, and the usual decree for a sale of the premises and for the delivery of the possession thereof to the purchaser was entered. The defendant having neglected to deliver the possession of a part of the premises according to the decree, proceedings were instituted against him, which resulted in an order for a writ of assistance, to put the purchaser into possession, and an order that the defendant pay the costs of the proceedings, or that an attachment issue. The defendant having neglected to pay those costs, a subsequent order was obtained, for a precept to commit him to prison until the costs were paid. A motion was now made on behalf of the defendant to dispharge him from the custody of the sheriff, who had arrested and committed him on such precept.
    March 4.

      E. H. Kimball, for the complainant,
    insisted that the act to abolish imprisonment for debt did not extend to this case.

      H. G. Wheaton, for the defendant,
    cited Laws of 1831, p. 396, § 1 ; 3 Paige’s Ch. Rep. 36, 43, 44; 9 Wendell, 430.
   The Chancellor.

The counsel for the defetidant is under a mistake in supposing that his client is exempt from imprisonment in this case under the act to abolish imprisonment for debt and to punish fraudulent debtors. ' (Laws of 1831, p. 396.) The precept for commitment in this case is in the nature of a civil execution, and the defendant is therefore entitled to the privilege of the gaol liberties. (2 R. S. 433, § 40.) But he is imprisoned for the costs of a proceeding as for a contempt to enforce a civil remedy. His case, therefore, is expressly excepted from the operation of the act of April, 1831, by the provisions of the second section of that act. The precept, under which he is imprisoned, issued under and in conformity with the fourth section of the title of the revised statutes, which relates to proceedings as for contempts to enforce civil remedies and to protect the rights of parties in civil actions. (2 R. S. 534.) And it was the intention of the legislature to except proceedings under that title of the revised statutes from the operation of the non-imprisonment act. The case of The People, ex rel. Richardson, v. Onondaga C. P. (9 Wendell’s Rep. 430,) cited by the defendant’s counsel, came within the letter of the act of 1831, and was not embraced within any of the exceptions specified in the second section. If an order for the payment of interlocutory costs cannot be enforced by the imprisonment of a party, the adverse party would in most cases be without remedy, although the property of the person who is liable to pay such costs was more than sufficient to pay all his debts.

If a party is really unable to pay a bill of costs of this de-. scription, to the payment of which he is sometimes subjected by the bad advice of his counsel, and without any fault on his part, he ought not to suffer perpetual imprisonment. I therefore can see no good reason why such cases should have been excepted from the benefit of the article of the revised statutes which provides for the discharge of imprisoned debtors, upon a voluntary surrender of their property to the creditors by whom they are imprisoned. (2 R. S. 31.) In the present case I can give no relief to the defendant; and if he cannot get discharged under any of the insolvent acts, his only remedy is by an application to the legislature to extend the provisions of this article of the revised statutes to the case of an imprisonment for the non-payment of costs.

The application to discharge the defendant from the custody of the sheriff must be denied.


text:
    The Bank of Utica vs. The City of Utica.
    A corporation which is liable to taxation upon its capital, cannot be taxed for its surplus profits remaining on hand and undivided. It can only be taxed for so much of its capital stock paid in, or secured, as will remain after deducting therefrom the actual cost of the real estate of the company.
    Where the illegality of an assessment and taxation of property appears upon the face of the warrant for the collection of the tax, trespass will lie against the collector who levies upon property for the payment of such tax.
    If the error in an assessment appears upon the face of the assessment roll, or the assessment is made by the same body which imposes the tax, the party who has been taxed improperly has a remedy at law, by mandamus, to compel that body to correct the taxation.
    The court of chancery will not refuse to take jurisdiction of a suit, although the complainant has a perfect remedy at law, if both parties agree to submit .the case to the decision of the court, without objection as to jurisdiction.
    This case came before the court, upon the complainants’ bill and a stipulation of the parties, for the purpose of settling the question as to the right, claimed by the city of Utica, to tax a surplus fund of $70,000, remaining in the bank undistributed, over and above the capital stock of the company. By the stipulation, the defendants agreed to waive all objections of form, either as to the jurisdiction of the court or otherwise, for the purpose of presenting to the chancellor the single question, whether the complainants were liable to taxation on their surplus fund. And it was further agreed, that if the decision should be in favor of the bank, the defendants might be restrained by injunction from collecting the tax. By the assessment roll, it appeared that the bank was assessed for all its real estate lying in the city, and for its whole capital stock, except so much thereof as had been paid for real estate then held by the company in Utica and elsewhere; and also for $70,000, which was described in the assessment roll as “ other personal property, or surplus fund.” And that the amount of the tax imposed upon the bank on account of such surplus fund, was about two hundred dollars.

      March 4.

      H. Denlo fy W. Hunt, for the complainants.

      Charles Ji. Mam, for the defendants.
   The Chancellor.

As the charter of the city of Utica gives to the common council of that city the exclusive control and direction as to the assessment and collection of the city taxes, 1 think the complainants had a perfect remedy at law, by an application to the supreme court for a mandamus, to compel the common council to correct their assessment and taxation of the property of the bank, if it was illegal. The remedy by mandamus, however, would be much more imperfect and doubtful, in the case of an ordinary town and county tax, where the assessment is made by one body and the tax is imposed by anotherespecially if the error or illegality did not appear upon the face of the assessment roll. In the present case, the illegality, if any, appears on the warrant which has been issued, by the common council of Utica, for the collection of the tax. The complainants, therefore, appear to have another adequate and more certain remedy at law, by an action of trespass, should the defendants attempt to enforce the payment of the tax by a sale of the property of the bank. This court, however, will not refuse to take-jurisdiction of a case merely on the ground that the complainant has a perfect remedy at law, if the parties have submitted themselves to the jurisdiction of the chancellor without objection. (2 Paige’s Rep. 509.) - By the written stipulation between the parties, for the purpose of bringing this question before the court for a decision upon the complainants’ bill alone, the defendants have expressly agreed to waive the objection, that there was a certain and adequate remedy at law, for the complainants, if the construction of the statute is as contended for by them. And in this case there can be no doubt as to the power of the court, if it takes jurisdiction of the cause, to give a perfect remedy to the complainants, by the ordinary decree, for a perpetual injunction against the collection of this tax. Finding myself thus legally compelled to apply the maxim, modus el comenllo vincunt legem, even to a question of jurisdiction, I shall proceed to examine and decide this case upon its merits.

There is no doubt as to the right of the common council of the city of Utica, under the forty-fourth section of the charter, to impose a city tax on the real and personal estate of a monied corporation located in that city; which tax is to be imposed upon the same property that the board of supervisors of the county of Oneida are authorized to tax for town and county expenses. (Laws of 1832, p. 26.) Reference must therefore be had to the provisions of the general tax law, as contained in the 13th chapter of the first part of the revised statutes, to ascertain what property is thus taxable. By the first section, (1 R. S. 387,) it is declared that all lands and all personal estate, within this state, whether owned by individuals or corporations, shall be liable to taxation; subject to certain exemptions specified in a subsequent clause of the statute. This section of the statute, taken by itself, would, of course, include all the personal estate of a corporation, beyond the amount of its debts, whether more or less than the amount of its nominal capital. The subsequent provisions of the statute, however, show what the legislature mean by the term personal estate, when applied to incorporated companies liable to taxation on their capital. It means so much of the capital stock paid in, or secured, as will remain after deducting therefrom the actual costs of all the real estate of the company. The regulations as to the assessment of incorporated companies, appear to be all contained in the fourth title. (1 R. S. 414.) The first section declares what corporations shall be liable to taxation on their capital; and by a previous provision, all others are exempt from taxation on their personal estates. The second section directs the proper officer of the company to furnish to the assessors of the town or ward where it is liable to be taxed upon its capital, a statement of the amount of its capital paid in, or secured; the amount of the same which is invested in real estate, at the actual cost of such real estate ; and the amount of the capital stock held by the state, or others, which is exempt from taxation. The principal ob- ject of this statement appears to be to enable the assessors te ascertain what portion of the capital stock was to be taxed ¿s the personal estate of the corporation. And the sixth section, accordingly, directs the amount of such capital stock to be inserted in the assessment roll in the column of personal estate, after deducting therefrom the cost of the real estate, and the stock which is exempt from taxation. I think it is evident from these different provisions, that the legislature intended » to tax corporations upon the nominal amount of th'e stock itself, and not upon its actual value to the stockholders; except as to manufacturing, turnpike, and marine insurance companies, which are to be taxed on a different principle. If the effects of a corporation have been permitted to increase beyond the nominal value of its capital stock, it is perfectly just and equitable that the excess should be subject to taxation; and it would be equally reasonable, on the other hand, to diminish the amount of tax where a part of the capital had been lost, by the depreciation of property, or otherwise. But the legislature, for the sake of convenience, have only applied that principle to a few corporations, where it .was probable there might be a great difference between the nominal and the actual value of their stocks. The object of the eighth section of this title was not to enable the officers of the, corporation to reduce the amount of the assessment upon its capital stock, by swearing that the value of the stock does not exceed a certain amount. But it was to enable them to correct any erroneous estimate of the amount of the capital stock liable to taxation as such; and also to reduce an over estimate of the actual value of the real estate described in the assessment roll.

The tax upon the supposed surplus funds of the bank being unauthorized by the existing laws, an injunction must issue to restrain the defendants from collecting the same.


text:
    In the matter of Dekay.
    Where real estate was conveyed to a mother, in fee, previous to the revised statutes, in trust for the daughter, and her heirs and assigns, provided she did not die under tage and without issue, but if she died under age and Without issue, then for the sole use of the mother, in fee, and the mother •died during the minority of the daughter, who was the sole heir; Held, that ■the trust ceased with the death of the mother, and that the whole legal and equitable estate in the premises then vested in the daughter.
    In 1826, Henry Eckfbrd and wife conveyed to Sarah Drake. In fee, certain lands in the city of New-York, in trust for her daughter, Janet H. Drake, her heirs and assigns, provided the said Janet did not die under lawful age, and without issue; but if she died under age, and without issue, then for the sole use and benefit of Sarah Drake, the grantee, her heirs and assigns forever. Sarah Drake afterwards died, leaving her daughter Janet, now the wife of George C. Dekay, and who is still a minor, her sole heir at law. The husband, George C. Dekay, presented a petition stating these facts, and praying that an order might be entered, granting authority and power to the petitioner to manage and control the property thus granted in trust
    March 4.
    JV*. Dane Ellingwood, for the petitioner.
   The Chancellor.

The petitioner’s counsel is under a mistake in supposing that the property in question is any longer held in trust, so as to give the court any authority or power to appoint a new trustee. It does not distinctly appear whether Mrs. Drake, the original trustee, died before or after the revised statutes went into operation. The ascertainment of that fact, however, cannot be material in this case. If she died before, the legal estate, and her contingent fee in the beneficial use of the property, descended to her daughter as her sole heir; thus uniting the whole legal and equitable estate in the latter, who now holds it in fee simple. If the mother died since the revised statutes took effect, there was still no trust which could vest in the court of chancery, upon her death, under the sixty-eighth section of the article of the revised statutes relative to uses and trusts. The purposes for which the trust was created having ceased, by the union of the estates both of the mother and the daughter in the latter, as the sole heir at law of the former, the estate of the trustee, as such, is at an end, and the daughter is now seised of the whole, in fee. (1 R. S. 730, § 67.) Again; by the forty-seventh section of the same article of the revised statutes, (Id. 727,) every person who is entitled to the actual possession of lands, and to the receipt of the rents and profits thereof, in law or in equity, is deemed to have a legal estate therein, commensurate with his beneficial interest in the premises; except in those cases where the estate of the trustee is connected with some power of actual disposition or management. The effect of this provision of the revised statutes is to turn all merely nominal or naked estates in trust in real property, into legal estates, in the persons having the beneficial interest therein.

In the present case, the petitioner, by virtue of his marital rights, has all the power or control over his wife’s property which this court could confer upon him as a substituted trustee. But he cannot sell the estate, so as to give a good title to the purchaser beyond his own life, until she is of full age so as to be able to join in the conveyance. If the petitioner is unable to support his wife, and the income of her estate is not sufficient for that purpose, she must join her husband in an application for the appointment of a special guardian, to sell so much of the property as may be necessary. But if his only object is to obtain an authority to improve and manage the property, he possesses.that power already.


text:
    The People, ex rel. Morrison, vs. Brower.
    Where an order was made by the court, directing a party to deposit a paper in his possession with the master, forthwith, Held, that the order must be complied with immediately, or within a reasonable time after notice of the order; and that the party was not entitled to twenty-four hours after service of the order to comply therewith.
    A party is in contempt for not obeying an order served upon his solicitor, if knowledge of such service was brought home to him, in the same manner as if the order had been served on himself personally.
    This was an appeal from an order of the vice chancellor of the first circuit, directing the defendant, Brower, to be committed/or a contempt, in refusing to deposit a deed with the master, as directed by a former order of the court.
    March 18.

      H. E. Davies, for the relator.

      W. P. Hawes, for the defendant.
   The Chancellor.

There is no doubt in this case that the vice chancellor had jurisdiction over the parties in the original cause, so as to give him the authority to order the deed of the mortgaged premises, under which all the parties claimed title, to be deposited with the master, for the inspection of the purchaser, and that it might be recorded. As that order was not appealed from, its correctness cannot be inquired into as a ground for reversing a subsequent order to commit the defendant. I have no doubt, however, that the order to deposit the deed was proper, and such an one as the complainant had a right to ask for, under the circumstances of the case. The order having been made, it was the duty of the vice chancellor to enforce a compliance with the terms thereof. The direction was to deposit the deed forthwith, which in this order does not mean within twenty-four hours, according to the technical meaning of the word instanter as used in courts of common law; but it meant immediately, or within a reasonable time after notice of the order.

I am relieved from the necessity in this case of inquiring’ whether the defendant, or the solicitor who made the affidavit as to the personal service on him, has been guilty of'a wilful perversion of truth; though, if the case turned on that point, I apprehend there would be but little difficulty in arriving at a correct conclusion on that subject. I am satisfied, however, that a personal service of the order in this case was not neces* sary to bring the defendant into contempt for disobeying it. According to the settled practice of the court, if an order is served on the solicitor and knowledge thereof is brought home to the party whose duty it is io obey the same, he may be punished for a wilful disobedience of the order, in the same manner as if it had been personally served on himself. It appears by the affidavit of Davies, and which is not denied by the affidavits on the other side, that a copy of the order to deposit the deed was served on the solicitor of Brower at half past ten o’clock in the morning, and that half an hour after-wards the solicitor informed Davies that he had shown the copy of the order to his client, and that he would not comply therewith. As the defendant was expressly called upon, by the interrogatories, to admit or deny this allegation, and he has not availed himself of that opportunity to deny it, the statement in the affidavit of Davies as to what the solicitor of Brower informed him, is sufficient evidence to charge the defendant with a wilful disobedience to the order of the court. Again; if he did not mean to contemn the authority of the court, he should have produced the deed, or offered to deliver it to the master, when he was brought into court to answer for his misconduct. In the recent case of Stafford v. Brown, decided in January last, this court held that a service of the order to answer, made upon the solicitor for the defendant, as direcled by the statute, (2 R. S. 180, § 77,) was sufficient to bring his client into contempt for disobeying the order, although it did not appear that the solicitor ever gave him notice thereof. Here there can be no doubt that the defendant had notice of the order to deposit the deed, and that he had at least an hour to comply therewith, before the master certified his default, when the order might probably have been complied with in five minutes. And there can be no doubt that the relator has been prejudiced by this improper conduct of the defendant, inasmuch as he has been prevented thereby from consummating the sale.

The" order appealed from must therefore be affirmed, with costs.


text:
    Woodruff vs. Straw.
    Where the suit is pending before a vice chancellor, the application for an extra allowance to a master for taking an account, must be made to such vice chancellor; and an order for such allowance must be entered with the clerk.
    To obtain an extra allowance to a master, bis affidavit should state the time he has been actually and necessarily employed in the reference, and the gross amount of his taxable fees including his charges for the report.
    The master will in no case be allowed more than five dollars per day, including his taxable fees on the reference and for the report. And if his taxable fees amount to that sum, or nearly so, no extra allowance will be made.
    This was an application by one of the masters of this court for an extra allowance, in addition to his fees, upon taking an account of the administration of an estate. The suit was pending before the vice chancellor of the third circuit; but the application was made to the chancellor, under the supposition that he alone was authorized to make an order for such extra allowance, under the last clause of the seventh section of the fee bill. The affidavit of the master stated that he had been actually employed during the usual office hours for the period of fifteen days.
    March 18.
    P. S. Henry, for the master.
    J. King, for the complainant.

      R. W. Peckham, for the administrators.

      Jl. Townsend, for the infant defendants.
   The Chancellor.

The last clause of the section' of the revised statutes relative to the fees of the masters in chancery# (2 R. S. 626, § 7,) authorizes the chancellor, in a case like the present, to make a further allowance to the master, beyond his. taxable fees, as may be just and reasonable, upon notice to the party to be charged therewith. The affidavit of the master, upon which he applies for an extra allowance in such a case, should not only state the time he has been actually and necessarily employed in the reference, but he should also state the gross amount of his taxable fees on such reference, including his report and the schedules accompanying the same, and the necessary copies; to enable the court to judge of the necessity or propriety of making an order for an extra allowance. The rale which has been adopted by the court, under this provision in the fee bill, is not to allow the master, in any case, beyond the sum of five dollars per day for the time actually and necessarily employed by him in taking and stating the account, and in preparing, settling and copying his report, including all his taxable fees on the reference. If it appears, therefore, that his legal fees will be equal to that sum, or nearly so, no extra allowance will be made.

As this suit is pending before a vice chancellor, the application for an extra allowance should have been made to him; and the order for such allowance, if granted, should be entered with the clerk of his circuit. Although the word chancellor alone is used in this clause of the fee bill, the provision is equally applicable to suits pending before the vice chancellors. And in relation to such suits, they have all the jurisdiction and power which by law is vested in the chancellor; except in those cases in which their powers are otherwise limited. (2 R. S. 168, § 2,) The same form of expression is used in reference to' the 10th and 12th items of the master’s fees. These several provisions were copied from the fee bill of April, 1823, without alteration; and by the term chancellor, the court of chancery was intended.

The master must, therefore, be allowed to withdraw his application ; and with liberty to apply to the vice chancellor before whom the cause is pending.


author: The Chancellor. The Chancellor.

text:
    Rogers and others vs. Paterson.
    Where the trustees of a legacy for an infant feme covert, which is invested on bond and mortgage in their names as trustees, take a release of the equity of redemption in the mortgaged premises, the nature of the infant’s property is not changed, so as to alter the'course of descent upon her death during her minority; and the proceeds of the mortgaged premises belong "to the husband, as her personal representative, and not to her heirs at law.
    Sf one of the respondents, in an appeal to the court for the correction of errors, dies after issue joined upon the petition of appeal, and that court, without noticing his death, reverses the decision of the chancellor, and makes a new decree against all the respondents, such decree is not void; and the court of chancery is bound to carry it into effect against the surviving parties, and the representatives of the decedent
    Where a suit abates after an appeal, but before the court for the correction of errors become possessedof the cause, it must be revived in the court below, before any further proceedings can be had on the appeal. But If the abatement takes place after the appellate court has become possessed of the -cause, that court, upon petition, may order the suit to stand revived in the name of the representatives of the deceased party.
    Where a decree is made in the court for the correction of errors against a deceased party, after his death, the suit must be revived, in the court of chancery, against his representatives, before any proceedings can be had to carry the decree into effect
    •After a decree in a cause by which the defendant has acquired an interest, he has a right to revive the suit, upon a petition and order, if the complainant or his representatives neglect to revive; and it is not optional "with the representatives of the deceased complainant, either to have the suit revived -orto have the bill dismissed as to them.
    The bill in this cause was filed by the executors and exectutrix of John Ellis, deceased, to settle the construction of the 'will of the decedent, as to a legacy given to his daughter Eliza Emily, formerly the wife of the defendant Paterson. The «chancellor decided that the devise over of the legacy, in case of the death of the legatee before she arrived at the age of 21, Was valid; and that the legacy was to be distributed as a part of the residuary estate. Upon an appeal to the court for the (correction of errors, the decree of the court of chancery was reversed. The appellate court also decided and decreed, that the legacy, together with the accumulation and the interest or income thereof, were vested as an absolute interest in Mrs,. Paterson; and that upon her marriage with the defendant, it became the absolute property, the limitation over, being void in law. That the defendant was also entitled to all such additions as had been made to the fund set apart to satisfy that legacy, and the accumulations of interest, or otherwise, since the death of Mrs. Paterson. And that the cause be remitted to the court of chancery, with directions to refer it to a master, upon the application of either party, to take an account of the legacy and of the accumulations or income thereof, and of the stocks, securities or other property in which the same was invested, and that the complainants be directed to appear before the master and execute and deliver to the defendant all such transfers, assignments and other conveyances of the stock, securities and other property as the master should require ; and also to pay to the defendant such sum or sums of money belonging to the fund and the accumulations thereof, as should appear to be in their hands; that upon the coming in of the report, such further direction should be giv- ' eii by the chancellor, as might- be necessary or proper to carry into full effect the decree of the appellate court. And that the costs of both parties in the court for the correction of errors, and in the court of chancery, be paid out of the general residue of the estate of the testator by the complainants. The appellants, upon filing the remittitur from the appellate court, obtained the usual order, that the decree of the court for the correction of errors be made a decree of the court of chancery. Issue was joined upon the petition of appeal, in the appellate court, in August, 1832 ; and in June, 1833, before the argument, of the cause upon the appeal; John Taylor, the acting executor, died. No proceedings were had, by either party, to bring his executors before the court for the correction of errors pending the appeal; and the decree of that court was entered in the same manner as if he had been still alive.

      March 18.

      The defendant, Paterson, now presented a petition stating the proceedings which had taken place in the court of chancery and'in the appellate court, and setting forth also that many of the securities and investments in which the legacy to Mrs. Paterson was invested, were in the ñamé’of Taylor, -V,A„ iiad, in his own wrong, made payments of part of the investments, in such manner as to make himself personally accountable, to the defendant. That by his will he appoint-J 1 x -ed J. S. Taylor and J. Johnson his executors, who proved the will in November, 1833, and possessed themselves of the securities and investments in which the legacy of Mrs. Paterson, or some considerable part thereof, was invested. And that, although more than eighty days had elapsed since the death ■of J. Taylor, the surviving complainants had neglected and refused to proceed against his executors as defendants; nor ■had such executors of Taylor taken any measures to cause themselves to be made parties to the suit, but had declined so to do. He therefore prayed that the executors of J. Taylor ■might be ordered to shew cause on such day as the chancellor should deem reasonable, why the suit should not stand revived in their names as complainants, together with the surviving complainants; and that the judgment of the court for the correction of errors might be carried into effect, by modifying, altering, and reversing the decree appealed from, as before mentioned; and that the decree so modified and altered bear date as of the time it vyas originally pronounced, or •during the life time of J. Taylor, and that a suggestion of bis death might be entered in the cause. Or if the chancellor should be of opinion that the decree was irregular, in consequence of the death of J. Taylor pending the appeal, so that an application to the appellate court would be necessary, he prayed that an order might be entered to cause the remittitur of the proceedings to be returned there for that purpose. On the part of the surviving complainants, and the executors of J. Taylor, afiidavits were read, shewing that $18,000 of the legacy had been invested on bond and mortgage, in the name of the acting executors and executrix of Ellis, in trust for the legatee, Eliza Emily, afterwards the wife of the defendant Paterson, and that before her marriage the executors and executrix took from the mortgagor a release of the equity of redemption in the mortgaged premises. That Mrs. Paterson died without having had issue, and that after her death, the acting executors and executrix sold the same for the sum of $27,000. They therefore insisted that this house and lot was the real estate of Mrs. Paterson at her death, and that it did not go to her husband as her personal representative. It also appeared from some of the affidavits that Taylor had paid over part of the proceeds of the legacy of Mrs. Paterson to the residuary legatees.

      Archibald G. Rogers, far the complainants.

      J. JD-uer <§• M. T. Reynolds, for the defendant.
   The Chancellor.

Even if the executrix is right in sup» posing that the $18,000 of the legacy invested on bond and mortgage became the real estate of Mrs. Paterson by the release of the equity of redemption to the mortgagees, so that it descended to her heirs at law, and not to her husband, I have not the power, either upon a bill of review or otherwise, to correct the decision of a superior tribunal, by which the whole property was decreed to the husband. Neither do I see anyway in which these facts could be gotten before the court for the correction of errors, even if there was a rehearing there. They must rehear the cause upon the bill and answer, upon which the decree of this court was founded, and no such facte appear upon those pleadings. In this case, however, if the mortgage had been given directly to Mrs. Paterson, and the equity of redemption had been cast upon her by operation of law, it is doubtful whether a court of equity would consider the mortgage debt merged during her minority, so as to deprive herself or her husband of the benefit thereof as personal estate. (See Powell v. Morgan, 2 Vern. 90. Thomas v, Kemys, Id. 348. Donisthorpe v. Porter, Ambler, 600. 2 Eden’s Rep. 162, S. C. Jicklings Leg. Equit. Estates, 427, note y.) It is clear, however, that the executors, who were merely trustees for the purpose of investing the legacy so that she might receive the income thereof, as personal estate, had no right, without her consent and during her minority, to change the nature of the property so as to alter the course of descent. The husband, therefore, as her personal representative, had a right to insist that the mortgaged premises should be converted into money, or be conveyed to him, as a part of the personal estate.

There is no doubt that the court for the correction of errors had jurisdiction to make the decree, notwithstanding the death of Taylor, after issue joined in that court. The decree is not void, but is at most only erroneous. This court, therefore, is not competent to correct the error, if any exists. It must carry into effect the decree according to the mandate of the appellate court. If the death of Taylor had been known to that court, the decree would have been entered nunc protunc, as of a day previous to his death. Or perhaps the court might have declined deciding the case, and have given the personal representatives of Taylor a chance to be heard. It is not certain, however, that there is any error in the decree, although it was made and entered after the death of Taylor. The 28th rule of the court for the correction of errors adopts the practice of the house of lords when sitting as a court of appeals, in cases not otherwise provided for. By referring to that practice, it will be found that it is only in those cases where the suit abates before the petition of appeal is presented to the house of lords, that it is necessary to revive the suit, in the court below, before proceeding on the appeal. But if the abatement takes place after the appellate court has become possessed of the cause, the representatives of the deceased party may apply by petition for an order that the appeal stand revived in their names; and if they neglect to do so, the adverse party may obtain an order to revive. After such order of revival, the proceedings will go on as if the original party were living; a supplemental case being furnished, showing such revival. (Palmer’s Pr. 80. Sydney on Appeals, 110.) And upon the authority of Urquhart’s Experienced Solicitor in proceedings under the appellate jurisdiction of the house of lords, it is said that if the respondent’s representatives do not apply for an order to revive the suit in his name, where he dies before the hearing, the cause may nevertheless be heard on the part of the appellant, without regard to the respondent’s death ; though it will.be necessary to revive the cause in the court of chancery before any further proceedings can be had there to carry into effect the decree of the appellate court. (Palmer’s Pr. 81.) Such indeed appears to be the settled practice in England, where the defendant in error dies after joinder in error. (Palmer’s Pr. 155. 1 Archb. Pr. 334, ed. of 1833. Law & Prac. of Writs of Error, 114. 2 Saund. Rep. 101, note 1.) I am aware that in Wilson v. Hamilton, (9 John. Rep. 44%) where the suit had abated by the death'of .one of the parties after the filing of the appeal, the court for the correction of errors remanded the cause to the court of chancery, that the proper parties might be called in. But I presume that must have been a case in which the abatement had taken place before the respondents had answered the petition of appeal. It only remains to be considered what steps are to be taken in this court to carry into effect the decree of the superior jurisdiction.

The one hundred and eighteenth section of the title of the „ revised statutes relative to the court of chancery, (2 R. S. 185,) provides that if a complainant shall die, and there be no surviving complainant, or if the survivor shall neglect to proceed against the representatives óf the decedent to make them defendants in the suit, this court, upon the petition of the original defendant, may order such representatives to show cause, at a certain day to fee named in the order, why the suit should not stand revived in their names, or the bill be dismissed, as far as the interests of such representatives are concerned. It is insisted by the counsel for the surviving complainants and the representatives of J. Taylor, that this section only authorizes the court to make an order in the alternative. And that the representatives of the deceased complainant will he permitted to elect, either to have the suit stand revived in their names, or to have the bill dismissed as to them. I am satisfied, however, such was not the intention of the legislature ; but that, on the contrary, it was intended to give the court the power to make such order as would be applicable to the case. The object of this section, and of the three which immediately follow it, was to provide for the revival of suits, by a summary proceeding, in certain cases which had not been before provided for. It had been decided by this court that if a suit abated by the death of one of the complainants, before decree, it was at the election of the ‘surviving complainants to revive the suit, by bringing in his representalives, or to abandon the suit without paying the defendant the costs to which he had been subjected. (Pells v. Coon, Hopk. R. 450.) The same right of election was given to the representatives of a sole complainant who had died before a decree. But if there had been a decree in the cause, in which the defendant had an interest, he had a right to revive, if the complainant or his representatives neglected to do so. ( Williams v. Cook, 10 Ves. R. 407.) This last case, however, was not provided for in the former statute, which allowed suits in chancery to be revived by a summary proceeding. The defendant was therefore compelled to resort to- the more expensive and dilatory proceeding by bill of revivor, where there had been a decree in his favor. The object of the 118th section was to provide a remedy by a summary proceeding in these several cases. That, upon an abatement before decree, the complainants or their representatives might be compelled to revive within a reasonable time, or that they should be precluded, and their bill be dismissed, either with or without costs, as the court might think proper; and upon a decree in which the defendant was entitled to revive, that he might be permitted to revive upon petition and in a summary manner. The petition in the present case shows that the defendant has a decree of -the court for the correction of errors in his favor, which entitles him to revive the suit against the executors of Taylor,, that they may account for and deliver over the securities and monies belonging to the defendant, of which they have possessed themselves as the representatives of Taylor. An order-must therefore be entered, directing the executors of Taylor -named in the petition to show cause, on the first Tuesday of-April next, why the suit should not stand revived in their names, as complainants, with the surviving complainants in the original suit. And the order must also direct such executors and the surviving complainants to show cause at the ■same time, why a decretal order of this court should not be entered to carry into effect the decree of the court for the correction of errors. A copy of the order and of the petition upon which it is founded are to be served upon the executors of Taylor, or one of them, and also upon the solicitor of the surviving complainants, the usual time before the day for showing cause.

The order to show cause having been duly served,

Jl. G. Rogers, for. the surviving complainants, and

J. J. Rosevelt, for the executors of J. Taylor, appeared td oppose the revival of the suit.

J. Duer ty M. T. Reynolds, for the defendant.

The Chancellor.

The order to show cause why this suit should not stand revived in the name of the executors of John Taylor deceased, one of the original complainants, together with the surviving complainants, must be made absolute. Most of the objections now raised to the revival of the suit as against the executors of John Taylor were argued and fully considered upon the application for the order to show cause. It is only necessary, therefore, to refer to the opinion of the court upoii that application, in answer to the objections then considered. The decree of the court for the correction of errors is conclusive upon the parties here, not only as to their rights, but also as to the regularity of the decree. That court had jurisdiction of the case, and it does not belong to the court of chancery to set aside or disregard the decision of the appellate court, as irregular and unauthorized. The decree of that court must therefore be deemed to have the same effect here as if John Taylor had been alive at the time of making that decree, and had died afterwards. It is then a decree that John Taylor and the other complainants who joined with him in the answer to the defendant’s petition of appeal, account for and pay over to the defendant the legacy bequeathed to his deceased wife, with the income or accumulations thereof, under the direction of a master, and assign and deliver over to him the securities in which the same is invested. Even before the revised statutes, a defendant was entitled to revive a suit after a decree for an account had been entered, or any other decree upon which the rights of the parties had been definitively settled, and where the defendant could derive a benefit from a continuation of the proceedings in the suit. (Kent v. Kent, Prec. in Ch. 197. Stowell v. Cole, 2 Vern. 297. Williams v. Cook, 10 Ves. 406. Harwood v. Smedes, 12 Id. 316.) As to this class of cases, the revised statutes have only altered the law so far as to permit the defendant to do that upon petition and order which he was before authorized to do upon a simple bill of revivor. And the rights and liabilities of the representatives of the deceased complainant are precisely the same, whether the suit is revived against them as complainants, upon the petition of the defendant, or as defendants on a bill of revivor filed by him. The right of the defendant to revive is the only question which the representatives of the deceased complainant can bring before the court in either case, so far as the former proceedings in the cause are concerned.

It is, however, insisted, on the part of the executors of J. Taylor, that the whole cause of action survived against the surviving complainants, and that the suit cannot be revived against the representatives of Taylor. The suit is undoubtedly abated as to Taylor; and the petition of the defendant shows that the whole cause of action, or the claim of Paterson under the decision and decree of the appellate court, did not survive against the other complainants. The petition is a substitute for a bill of revivor, in which the party filing the same may always insert so much new matter as is requisite to show how and why he is entitled to revive the suit. Here the defendant shows himself entitled to revive the suit against the representatives of Taylor, on the decree to account and deliver over the securities in which the legacy or the avails thereof was invested, by showing those securities in the hands of the representatives of Taylor, and that such representatives had possessed themselves of the fund decreed to belong to the defendant, or a part thereof. A decree against several executors, or trustees, to account, is a decree that each account for so much of the estate or trust fund as he is justly chargeable with. And if one of them dies, after such a decree, the adverse party may revive the suit against his representatives, for the purpose of charging his estate with what had come to his hands ; or he may proceed against the survivors. (Hampson on Trustees, 84.) The bill of revivor in such a case, or the petition to revive, may show that the estate of the decedent is chargeable under the decree, or that the fund is in the hands of his representatives ; for the purpose of showing that the party seeking to revive has an interest iñ the continuation of the proceedings against such representatives.

The commencement of a suit against the executors, in a court of the United States of concurrent jurisdiction, by the residuary legatees, for the purpose of evading the effect of the decision of the court of dernier resort in this state, cannot alter the rights of Paterson in this suit. Even if that suit is prosecuted in good faith, and not in collusion with the representatives of Ellis, and if the federal courts should not consider themselves bound by the decision of the highest tribunal in this state on a question of local law, a recovery against the representatives in that suit, in favor of the residuary legatees, could not affect the right of Paterson to his wife’s legacy, under the decree in this cause. And if the executors should be compelled to pay it the second time, they must attribute it to their own neglect to make all the conflicting claimants parties to the suit instituted'by the executors to settle the construction of this will.

There must be a decree of this court to carry into effect the decree of the court for the correction of errors, and referring it to Master Codwise, to take the account, and to direct the trans= fer and delivery of the legacy and the securities in which it is invested, as directed by that court; the terms of the decretal order of this court to correspond as near as may be with the decree of the court of errors, adapting such decree to the suit, as it is now to stand revived, in the names of the executors of John Taylor in conjunction with the surviving complainants in the original suit. And any of the parties are to be at liberty to apply to this court from time to time for such further directions as may be necessary or proper to carry such decree into full effect.


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    The Theological Seminary of Auburn vs. Childs & Stebbins.
    Previous to the revised statutes, a pecuniary legacy to a corporation, payable out of the proceeds of real estate which the executors were directed to sell, was valid, although the corporation was not authorized by its charter to take real estate by devise.
    Whether such a legacy is valid, under the provisions of the revised statutes ? Qncere.
    Since the revised statutes, a devise of real property in trustfor a corporation is void, unless such corporation is expressly authorized by its charter, or by statute, to take by devise.
    The object of this suit was to obtain the decision of this court as to the validity of a legacy from D. W. Childs, deceased, to the complainants. By the will of the testator, he devised to his executors certain real estate, to be sold for the benefit of his children, and for the payment of certain legacies. Among other legacies which he directed to be paid out of the proceeds of such real estate, was one of $500, to the trustees of the Theological Seminary at Auburn.
    April 1.

      John Porter, for the complainants.
    The complainants are authorized, by the act, creating them a corporation, (Sess. Laws, 1820, 197,) to receive a devise of lands directly to them. It was decided in the case of M’Cartee v. The Orphan Asylum Society, (9 Cowen, 437,) that the term purchase, used in the act then in question, did not include devise; and as that was the term relied upon for that purpose, that the testator could not devise to that corporation directly. But in the complainants’ charter they are declared to be capable, in law, of taking, purchasing, holding and conveying, both in law and equity, any estate, real or personal. The term taking, must, both in its popular and in its technical meaning, include devise; a more comprehensive term, to describe the power of receiving in any and every manner, could not be used. If the word purchase is to be received as having been used in a restricted sense, as was decided in M’ Cartee v. The

      Orphan Asylum Society, then some other meaning must be attached to the word take, which can only mean devise, or the word was used without meaning.
    The devise in the will of the testator, of certain lands, from the sale of which a fund was directed to be raised for the benefit of his children, and to pay legacies, (one of which legacies was given to the complainants,) was to the defendants in trust; and cannot be affected by the statute of wills. To shew that the devise to the executors, the defendants, in trust for the complainants, a corporation, is good, it can only be necessary to refer to the elaborate opinion of Jones, chancellor, in the case of M'Cartee v. The Orphan Asylum Society, (9 Cowen, p. 444, &c.) I refer also to 2 Kents Com. 286, and 288, n. a., and vol. 4, page 508, note a. The case of the Orphan Asylum Society was reversed in the court of errors, only on the ground that the devise was directly to the corporation; and the position of Chancellor Jones, that the devises may be made to natural persons, in trust for a corporation, is not questioned. The English cases, cited by the counsel for the defendants, were decided upon the mortmain acts; and the 9th Geo. 2, ch. 36, expressly provides that no lands shall be given to any person, in trust, for any charitable use, unless, &c. But it is contended that the exception in the statute of wills operates by way of prohibition. This is certainly a new reading of the statute. The language of the act, (1 R. L. 364,) gives the power to any person having an estate of inheritance in lands, &c. to devise them to any other person, except bodies politic and corporate. The act professes to confer a right, where none existed'before; but instead of making that right universal, it imposes a ‘limitation. But this limitation upon the power of -a devisee cannot, of itself, work a disqualification' to the cestuis que trust to take a beneficial interest under the will, provided the devisee was enabled by the statute to take the estate. Indeed, if the exception is to have the construction contended for, it having existed in the same form in the English statute of wills, where was the policy or necessity of the act of 9th Geo. 2d, ch. 361 And why are the English courts driven to that statute for authority to decide that bequests, of money to charitable uses, directed to be raised by the sale of land, are invalid and void ? To show that such cannot be the true reading of the act, I refer to the case of the Orphan Asylum Society, (9 Cowen,) and especially to the argument found at pages 457, &c. and also at 518, 519, &c. If the views taken of the statute of wills in the arguments referred to in 9 Cowen, are correct, then the bequest to the complainants must be held valid, because it was made, and the testator died long before the revised statutes went into operation.
    This court has jurisdiction to sustain the devise in this case, though void, under the statute of wills, it being made for charitable purposes, and to persons capable of taking. In support of this position, I refer to 2 Kents Com. 285, 6, 7, and the authorities there cited, and to vol. 4, page 508, last edition. Chancellor Kent considers that the court of chancery in England has jurisdiction, independent of the statute of 43d Eliz. ch. 4, called the statute of charitable uses; and if so, this court has the same jurisdiction.

      C. Stebbins, for the defendants.
    A devise of land to the complainants directly would have been void. The powers of the corporation are precisely the same as they were in the case of the The Orphan Asylum Society, (9 Cowen’s Rep. 506,) Act of Incorporation, (Laws of 1820, p. 197.) A bequest of money to be raised by the sale of land is equally void, as containing the policy of the statute of wills. Although the exception in the statute of wills in England may have been inserted to prevent a repeal of the mortmain acts, and not by way of prohibition, corporations being already prohibited from taking by the mortmain laws; yet, here it must operate by way of prohibition, because we have no mortmain laws, and its introduction could have been for no other purpose than to prohibit devises to corporations. The policy of the law could only have been to protect individuals against improvident devises, because the feudal reasons for the adoption of the mortmain laws, to wit, the exemption of lands from the feudal burdens, were inapplicable here in consequence of the abolition of those tenures. Such being the policy of the law, the withholding a capacity to take is equivalent to a prohibition, and so it would seem to have been considered by the Iegislature in revising the laws; for instead of the exception in the old statute, a direct prohibition is inserted in the revised statutes. (2 R. S. 57, § 3.) If, then, the exception in the old statute of wills is to be regarded as a prohibition, and to have the same construction as the present statute, the cases in England are numerous that the bequest in this case is void, (3 Bro. Ch. Ca. 233. 1 Vesey, jun. 279. 2 Vesey, sen. 52. 2 Fonb. Equity, book 2, pt. 2, ch. 1, § 2, in note.) These cases are subsequent to 9 Geo. 2, ch 36, which prohibits devises of lands, or money to be laid out in lands, for charitable uses, &c. But that act does not, in terms, prohibit bequests of money to be raised out of land; such bequests are held invalid, as contravening the policy of the law. Our revised statutes prohibit every devise to a corporation, and are therefore co-extensive with the statute of wills in England, and also with 9 Geo. 2, ch. 36. No doubt can be entertained that the English cases would be strictly applicable to a devise under our present law; and for the reasons above stated, we insist that the former-statute of wills must receive the same construction as the revised statutes. The substitution of a prohibition in terms, in the place of the exception in the old statute, being merely declaratory of the law as it before existed.
   The Chancellor.

By the decision of the court for the correction of errors in M’Cartee v. The Orphan Asylum Society, (9 Cawen's Rep. 437,) it is settled that the statute of wills of March, 1813, (1 R. L. 364,) did not authorize a devise of real estate directly to a corporation. And in the recent revision of the laws, it is declared that no devise to a corporation shall fee .valid unless such corporation be expressly authorized by its charter, or by statute, to take .by devise. (2 R. S. 57, § 3.) It is insisted, however, on the part of the complainants, that by their act of incorporation they are authorized to take lands by devise directly to themselves. By the first section of that act, (Laws of 1820, p. 197,) the corporation is declared to be capable in law of taking, purchasing, holding and conveying any real or personal estate. And it is supposed by the complainants’ counsel that the word taking, in this act, distinguishes it materially from the act incorporating The. Orphan Asylum Society, in which that word is not found. Were there no other way in which a corporation could take property, according to the usual acceptation of that term, except by a devise thereof, this charter might, perhaps, by necessary implication, give to a testator the right to transfer his title to real estate to the corporation by will. A corporation, however, may acquire property by a gift, or voluntary donation, as well as by a purchase thereof, in the ordinary sense in which the word purchase is used. There is nothing, therefore, in the use of the word taking, in the complainants’ act of incorporation, from which we are authorized to infer that the legislature intended to give to them the right to take, either real or personal estate, in any other manner than that in which the owner thereof was authorized to convey it to any other corporation. He had the power to do this by bargain and sale, or by a gift or voluntary grant thereof to the corporation. But he was not authorized, either by statute or by the common law, to transfer the legal title in his real estate, to a corporation, by a direct devise. To make a valid transfer of property, it is not only necessary that the individual, or corporate body, to whom it is to be transferred, should have the legal capacity to take, but the person who is to make the transfer must also have the right or power to transfer the property, in the manner in which he attempts to transfer the same. In this case, therefore, I am satisfied the complainants could not have acquired title to real estate by a direct devise from the testator. It will be necessary then to inquire whether the decedent could give to the complainants a part of the proceeds of his real property, as a testamentary bequest, by means of a devise of a power to his executors to sell the estate for that purpose.

A devise to a corporation being now prohibited by statute, and the legislature having abolished mere nominal trusts, and indeed all trusts as to real estate except in a few specified cases, it seems to follow that no devise to, or in trust for a corporation is valid, either at law or in equity, unless such corporation is expressly authorized by its charter, or by some other statutory provision, to take by devise. (2 R. S. 57, § 3. 1 Id. 728, § 49. Id. 729, § 58. Id. 737, § 129.) In this case the testator died before the passing of the revised statutes. Yet it is insisted on the part of the defendants that the exception of corporations, in the statute of wills which was then in force, must receive the same construction as the prohibitory clause in the present law ; and that the testator could not give to a corporation, indirectly, an interest in, or a valid lien upon his real estate, when he had not the legal power to make a direct devise of the estate itself to. such corporation, l am not prepared to say that the devise of a-power in trust to executors to sell lands for the payment of a legacy charged thereon, in favor of a corporation, would be invalid, even under the revised statutes. On that subject, however, I do not wish to be understood as expressing any definitive opinion. But I am satisfied that at the time this will was made, and at the death of the testator, in 1826, he had the legal right to devise his real estate to a trustee in trust for a corporation ; and that the devise of such estate to his executors, to sell the same, for the payment of. this and other legacies charged thereon, was valid.

The feudal policy having changed the ancient common law of England, and deprived the owners of lands of the power of devising the same at their deaths, the statute of wills was an enabling statute, and the exception as to corporations was strictly only an exception, and not a prohibition. The decision of this court in The Orphan Asylum Society v. M'Cartee, is conclusive on this question. Although the decree of Chancellor Jones in that case was reversed, it was solely upon the ground that the devise to the corporation was direct, and not to the executors in trust. Indeed, Mr. Justice Woodworth, who delivered the opinion of the majority of the court for the correction of errors in that case, admits that if the legal estate had remained in the executors, in trust for the corporation, and they had refused to pay over its portion of the proceeds of the property on a sale thereof, the complainants would have been entitled to relief. (9 Cowen’s Rep. 506.) The cases referred to by the defendants’ counsel are founded upon the prohibitions of the statute, 9 Geo. 2, ch. 36 ; (1 Evan’s Stat. 324,) under which statute, although it contains no express,Words prohibiting a bequest of money to be produced by the sale of lands, for charitable purposes, it has been settled by construction that such a bequest is void, as being within the spirit and meaning of the act. (See 14 Vesey's Rep. 541.)

There must, therefore, in pursuance of the stipulation in the case, be a decree against the defendants for the payment of the legacy, to the complainants, out of the proceeds of the lands devised to the executors to be sold, for that and other purposes.