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    Van Rensselaer and others v. Morris.
    1828, April 28.
    A receipt is always susceptible of explanation.
    An agent being dead, a written statement of an account made by him at the time of a settlement, is evidence against the principal.
    The probate of a will of personal property, is evidence of the due execution of the will.
    The assignment by a trustee, as security for his private debt, of a bond am mortgage belonging to the trust fund, will make such trustee chargeable for the value of such bond and mortgage at the time of such assignment, with interest thereon.
    And such trustee will be so chargeable, although the mortgagor should, subsequent to such assignment, become insolvent, and the mortgaged premises be insufficient to discharge the mortgage debt.
    Where letters of administration, with the will annexed, are granted, and the will having been made in a foreign country, remains as a record in some public office there, the proper course is to annex an authenticated copy of the will to the letters of administration.
    The bill in this cause was filed against the defendant for an account, as trustee of John Cullen, deceased; James Yan Rensselaer, one of the complainants, being the administrator with the will annexed, and the other complainants the devisees and legatees of Cullen. The principal ques tian in the cause was, whether the avails of 26 lots of lan in the city of Albany, belonging to the trust fund, were included in a settlement of the trust properly made on the 11th November, 1822, between James Yan Rensselaer, one of the complainants, and Arthur Breese, the attorney and agent ' of the defendant; at which time Van Rensselaer gave Breese a receipt in Ml of all demands against the defendant, as the trustee of Cullen. The defendant in his answer, admitted that he did, in 1814, assign to one Lenox, as collateral security for his private debt, a bond and mortgage taken from *the purchaser on the sale of the Albany lots. The mortgagor afterwards, in the year 1817, became insolvent. Cullen died at Aux Cayes, in the island of St. Domingo. Previous to his death, he made his will. The executor named in the will renounced, and letters of administration were, on the 2d September, 1820, granted to James Van Rensselaer, by the court of probates of this state.
    Platt, for complainants.
    Kane, contra,
    cited Van Devort v. Smith, (2 Caines, 155;) Utterson v. Mair, (2 Ves. jun. 95;) Alsager v. Rowley, (6 Ves. 748;) Burroughs v. Elton, (11 Ves. 29; 1 Mad. 80;) Chambers v. Goldwin, (9 Ves. 266;) Taylor v. Hayling, (2 Brown's Ch. C. 435;) Taylor v. Hayling, (1 Cox, 435;) Drew v. Porter, (1 Sch. & Lef. 182, 192;) Fairlie v. Hastings, (10 Ves. 123;) (Bull. N. P. 282; 1 Phil. Ev. 207;) Alland v. Jordan, (1 Vern. 161;) Anderson v. Maltby, (2 Ves. jun. 243; Dunbar v. Lem and others, (6 Brown’s Par. C. 503;) Chappedelane v. Decheneaux, (4 Cranch, 309, per Marshall, C. J.;) Willis v. Jernegar, (2 Atk. 251;) Tickel v. Short, (2 Ves. sen. 239;) Freeland v. Heron and others, 7 Cranch, 147;) Chambers v. Goldwin, (5 Ves. 837;) Gray v. Minnethrope, (3 Ves. 103;) Pickering v. Lord Stamford, (2 Ves. jun. 280, 582-3;) Mad. 79.
   The Chancellor :—Prom the exhibits and proofs in this case, taken in connection with the defendant’s answer, there cannot be a doubt that no specific settlement or account has ever been made or rendered, in relation to the twenty-six lots of land in Albany. It is not even pretended by the defendant in Ms answer. He says, generally, that the first receipt embraced transactions relative to the trust property. But Ms letter of November, 1826, even as explained by his answer, shows clearly that it could not have been settled at the time of giving the first receipt, although the bond and mortgage of Kane had at that time been assigned to Lenox. I am equally well satisfied it was not included in the settlement -with Breese. Although the terms of the receipt given on that occasion by Van Rensselaer, may be broad enough to *cover a general settlement of the trust property, yet the same language might well have been used, if a settlement of the Crosby manor concern, only, was intended by the parties. It is not an instrument of which the court is bound to give a legal construction, which must be conclusive as to the intent. A receipt is always subject to explanation, and to have its general terms narrowed down by proof aliunde. Although the defendant in Ms answer to the bill, insists that there was, at that time, a final settlement of the whole subject, he cannot be considered as swearing to a fact within Ms own knowledge. He was not present, and undoubtedly refers to the receipt taken by his agent, as the evidence which has satisfied his mind that it was a general settlement. If he had so considered it in November, 1826, he would not have written the letter of that date; and although he did not then recollect the terms of the receipt, if he had ever heard from his agent that he had settled for the Albany lands, that circumstance would not have been so soon effaced from Ms memory. Again; it does not appear by the power of attorney, which is among the exhibits, or otherwise, that Breese ever had anytMng to do with the Albany lots. Independent, therefore, of the written statement of the agent, who died more than a year before this controversy commenced, I should be satisfied the Albany lands were not included in the settlement. But Mr. Breeze’s written statement of the account is conclusive as to that fact, and I can see no legal objection to its admission as evidence. I think, under the circumstances in which it is found, it must be taken to be the statement of the account, as entered on the agency book at the time of the settlement, and therefore a part of that settlement. If so, it certainly would be legal evidence against the principal, if the agent was now living; it being part of the res gestce. (1 Phil. Ev. 77.)

It is objected, on the part of the defendant, that there is no proof of the will of John Cullen. This objection is one of form, rather than of substance, Mrs. Van Rensselaer, being the only surviving relative of her brother, at the time of his death, if she and her children are not entitled to the property under the will, she would be entitled to the whole *under the statute of distributions. But the probate of a will of personal property is at least prima facie, if not conclusive evidence of the due execution of the will. In Bailie v. Butterfield, Lord Kenyon held that prohate being granted as of a will and codicil, it was conclusive evidence, as to the fact of there being two distinct instruments. The letters of administration, with the will annexed, granted by the late court of probates, is somewhat informal, but, is sufficient to render it valid, until revoked. I am bound to presume that the will annexed to the letters of administration was duly proved, that the court had legal evidence of the correctness of the translation, and that the original will was so situated that it could not be obtained here. It being made before a notary, in an island where the civil or French law prevails, the original, probably, must always remain there as one of the records of bis office. In such a case, the proper course is to annex an authenticated copy to the letters of administration.

It must, therefore, be referred to a master, to taxe an account between the parties in relation to one fourth of the proceeds of the Albany lots. I do not think the complainants have shown enough in this case to authorize the opening of the account generally. The assignment of Kane's bond and mortgage to Lenox, for the private debt of the defendant, was such an unwarrantable use of the trust fund, as to make him chargeable with the actual value of one fourth of that bond and mortgage, at the time of such assignment, with the interest thereon from that time.

The question of costs, and other questions and directions are reserved.

       1 Cowen & Hill’s notes to Phil. Ev. 381; 2 id. 581, 582; Fuller v. Crittenden, 9 Conn. 401; otherwise if the receipt is in the nature of a contract ; Goodyear v. Ogden, 4 Hill, N. Y. R. 104; Dawson v. Kittle, id. 107.

         1 Cox’s Ca. 392.

       1 Phil. Ev. (3d ed.) 364.

        Colton v. Ross, 2 Paige, 396; Bogardus v. Clark, 4 id. 623.


source: Caselaw Access Project

license: Public Domain

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    *The People v. Norton and others.—The Same v. The Same.
    April 28th.
    As a general rule, a receiver should not be appointed without notice to the parties interested.
    But this rule is subject to exceptions in special cases, where irreparable injury would be sustained by the delay.
    So a receiver will be appointed without notice, upon the application of the complainant, where the defendant has absconded, to prevent service of the subpoena to appear and answer the bill: or has left the state, and is not expected to return for several months, and has no residence or place of business where a subpoena can be served.
    The defendant, however, has a right afterwards, to apply for relief against the order appointing such receiver.
   The Chancellor:—In these cases, application is made for the appointment of a receiver of the rents and profits of certain lots in the city of New York, which, by inquest of office, have been found to have escheated to the people of this state.

The facts disclosed in the respective bills, together with the affidavits on which the motions are founded, show the propriety and necessity of the appointment; and the only difficulty in my mind has been in relation to want of notice to the defendant Norton. As a general rule, a receiver should not be appointed without notice to the opposite party; but that rule must be subject to exceptions in special cases, where irreparable injury would be sustained by one or both parties, by such delay. In Maguire v. Allen, (1 Ball & Beatty, 75,) a receiver was appointed on the application of the plaintiff, where the defendant had absconded to prevent service of the subpoena to appear and answer the bill. In these causes, the defendant, who has traversed the finding of the jury, has left the state, and is not expected to return for several months, and has no residence or place of business, where a subpoena can be served. His solicitor, who was employed on the traverse, on being applied to, refuses to appear or do anything in these cases, on the ground that he is not authorized; and ff is necessary that *the 'receiver should be appointed without delay, to collect the rents of the tenants, which may be lost by a delay of a few days.

Under these circumstances, I think these are proper cases for the court, in the exercise of a sound discretion, to dispense with the formality of the notice, and make ex parte orders for the appointment of receivers; saving to the defendant the right hereafter to apply for relief against the order, if' he can show any good reason, on the merits, for discharging the same.

        Sandford v. Sinclair, 8 Paige 373; Gibson v. Martin, id. 481.


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    McLaren v. Hopkins, impleaded with Carpenter.
    April 28th.
    Where the only interest a witness has in a cause in which he is sworn, is in the question, the objection goes to bis credibility, and not to his competency.
    An interest to exclude a witness from being sworn, must be a direct interest ' in the event of the suit.
    Where M. purchased the interest of C. in certain mortgaged premises under a judgment and execution, in a suit by M. against H., who pretended to hold a subsisting mortgage against the premises given by C., it was held that C. on being released by M., was a competent witness to prove that the mortgage had been paid.

    This cause, and the previous proceedings in it, are con-tamed in 4 Cowen’s R. 667, and 1 Hopkins’ R. 576.

       By secs. 398, 399, of the N. Y. Code, interest will not exclude a witness, unless he is a party, or the person for whose immediate benefit the suit is brought. See Washington Bank v. Palmer, 2 Sanf. L. C. Rep. 686.

   The Chancellor:—This cause has been repeatedly before this court, and once before the Court of Errors. (4 Cowen’s Rep. 667.) In pursuance of the order of this court; of the 25th of August, 1825, (1 Hopkins’ Rep. 579,) made by the consent of the parties, a feigned issue was awarded, to determine the question whether the mortgage, which is the subject of controversy in this suit, was paid and satisfied to Hopkins, by Enos Cook the mortgagor. This issue was tried before Judge Throop, at the Onondaga circuit, in October, 1826; when the jury found that the mortgage had *been paid. A motion is now made by Hopkins for a new trial; which is submitted on written briefs, and the following" points alone are relied on by the defendant’s counsel;

lst. That Enos Cook was an incompetent witness for the plaintiff, on the ground of interest.

2d. That the verdict was against evidence.

Cook, who is insolvent, and by whom the mortgage was given to secure the payment of a previous bond, was called as a witness for the plaintiff, who had purchased his interest in the mortgaged premises under a judgment and execution. Being objected to by the defendant’s counsel, the plaintiff executed to the witness a formal release of all el aim which she had or might have against him on account of the mortgaged premises, and the judge then decided he was a competent witness. In this opinion of the circuit judge, I fully concur. The only interest which Cook could have, after the release, was an interest in the question, which would go to his credibility, and not to his competency. Under the particular circumstances of this case, it may be even doubtful whether his interest in the question is not equally balanced. It has been so repeatedly decided in our own courts that nothing but a direct interest in the event of the suit will disqualify a witness, that it is unnecessary to waste time in discussing that question. Cook’s rights cannot be affected by the event of this suit. Even'if the mortgage is ordered to be delivered up and cancelled, he will still be liable to Hopkins on his bond, or on his contract of the 26 th of February, 1816; and the decree in this cause could not be given in evidence in his favor to defeat a recovery.

On the other point, I am fully satisfied with the verdict of the jury. This court undoubtedly has, in most cases, the right to determine the facts, without the intervention of a jury; and even after a feigned issue awarded and tried, may award new trials, until it is perfectly satisfied with the verdict. But on a mere question of fact, the court ought to be dissatisfied with the finding of the jury, or have some reason to believe injustice has been done, before it grants a new trial. So far from being dissatisfied with the verdict in this case, I think the court must have come to the same conclusion, if it *had decided the facts without the aid of a jury. The positive testimony of Cook is very strongly corroborated by that of Mosely and Sergeant, laying out of view the testimony of Giddings, whose credibility is somewhat shaken. The settlement made with Cook, in January, 1817, and the declarations made by him after he was insolvent, and when his property had been sold and bid in by the plaintiff under her judgment, can have but little weight, when placed in opposition to the positive testimony of the witnesses, and the common sense view of the contract of February, 1816, when neither party had any interest in giving a false coloring to that transaction.

On the whole, I am perfectly satisfied with the verdict, both on the question of law and the matters of fact; and a new trial is consequently refused.


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    Fish v. Howland and others.
    May 13th.
    Where it is sought to charge lands with a legacy, it seems that the legatee is a necessary party.
    Although one legatee may file a bill in favor of himself and all others who might choose to come in under the decree, yet the bill must state the fact that it is filed in behalf of the complainant and all others, &c.
    Where a trustee prosecutes a claim for the benefit of the cestui que trust, the latter must be made a party.
    A grantor of lands has an equitable lien on the estate sold for the payment of the purchase-money; and this lien is not waived by the grantor’s taking the mere personal security of the purchaser only, unless there is an express agreement between the parties that the equitable lien be waived. But wherever any security is taken on the land sold, or otherwise, for the whole or a part of the purchase-money, the equitable lien will be waived, unless there is an express agreement that it shall be retained.
    So the lien is waived where a note or bond is taken of the vendee for the purchase-money, in which a third person joins as security.
    Likewise, if the vendee sells to a third person, without notice, the lien is lost.
    On the 10th day of February, 1813, Samuel Howland, then about 86 years of age, conveyed his farm to the defendant, Daniel Howland, his grandson, with whom he expected to reside the remainder of his life; and took back a life lease, at a nominal rent. He also took from Daniel a bond of the *same date, which, after reciting that the farm was leased to Samuel Howland, during his natural life, with the intent, however, that Daniel should occupy it so long as he should maintain, sustain and decently support his grandfather, during his natural life, was conditioned to pay to Jonathan Howland $340, as a legacy from Samuel Howland, within one year from the death of the said Samuel. The mother of Daniel Howland, together with her children, continued to reside on the farm, Daniel and Pontus taking charge of the same, and their grandfather resided with them until November, 1819; when Daniel, having become intemperate and troublesome, the old gentleman left them and went to reside with his son in law, the complainant, who supported him till his death, in 1825. In 1816, Daniel conveyed to Pontus, his brother, one half of the.farm, on the same terms and conditions as those on which he received it, and took from him a bond, as to one half of the legacy, &c., similar to that which had before been given to the grandfather, by himself. On the 16th of November, 1819, while Daniel was confined by a broken leg, the complainant, as he alleges, by direction of Samuel Howland, went to the house on the farm, where the Howlands, with their mother, resided, and procured from Daniel an assignment of the bond of Pontus How-land ; and also obtained from him the original, deed from Samuel Howland, with a release thereon, in the words and figures following: “ Know all men by these presents, that I, Daniel Howland, of the town of Washington, have remised, released and forever discharged, and by these presents, do, for me, my heirs, executors and administrators, remise, release and forever discharge Samuel Howland, of the same town, his heirs, executors and administrators, of and for all and all manner of actions, suits, debts, dues, sums of money, accounts, recognizances, bonds, bills, specialties, covenants, contracts, controversies, agreements, claims and demands whatever, in law and equity, which against the said Samuel Howland I ever had, now have, or which I, my heirs, executors or administrators hereafter can, shall or may have, for, upon or by reason of any matter, cause or thing whatsoever, *ffom the beginning of the world to this day of the date of these presents. Dated November the 16th, in the year 1819.
    Daniel Howland, [l. s.]
    Witness present, Peter Fish, Fanny Howland.
    The complainant alleges that the above release was executed in pursuance of an agreement with Daniel to reconvey the farm, and was intended as a reconveyance. The defendants deny that any such agreement was made, or that Daniel ever intended to reconvey the farm; but they allege, that at the time of the date of the release, Daniel was deranged, in consequence of the pain arising from his broken limb, and that they are informed and believe, that during such derangement, the complainant fraudulently procured the possession of the deed, and procured from Daniel his signature to the release, and to the assignment of the bond of Pontus Howland. Fanny Howland, the mother is dead; and Peter Fish, the other subscribing witness to the assignment and release, is the complainant in this cause. On the 22d of November, 1819, Samuel Howland made his will, and charged his debts upon his real estate; gave a legacy of $340 to Jonathan Howland, charged upon his real estate, and payable in' one year after the testator’s death, and devised the residue of his estate to his grandsons, the defendants Pontus and Samuel Howland, and appointed the complainant his executor, with power to sell and divide his estate agreeably to the will. The testator had no personal estate, and claimed no real estate, except the farm before mentioned, and died indebted to the complainant in a large sum for board, &c. On the 16th of April, 1825, after the death of Samuel Howland, the defendant Haight purchased of Pontus Howland the one fourth of the farm which had been conveyed to him by Daniel Howland in 1816, for $930; and before the conveyance was executed, or any part of the purchase-money paid, Haight had notice from the, complainant of the claims upon the premises set up in the bill in this cause. In May, 1825, Daniel Howland conveyed his one fourth of the farm to the defendant, Solomon Howland, his brother, who is an infant, for the sum of $5. The complainant seeks to charge both of these shares with the payment of the debt of Samuel *Howland, for maintenance, &c., and with the legacy to Jonathan Howland, on the ground that they are an equitable lien on the estate as originally conveyed to Daniel Howland; and he also insists, that the alleged agreement of the 16th of November, 1819, should be carried into effect, by decreeing the release of that date a valid reconveyance of so much of the premises as then belonged to Daniel Howland. The case was submitted on the pleadings and proofs, and on written arguments.

      Fish, for complainant.

      Swift, for defendants.
   The Chancellor :—So far as the bill seeks to charge the lands conveyed to Daniel Howland, or any of the defendants personally, with the legacy of $340 to Jonathan Howland, and charged by the testator on his real estate, it would seem that the legatee was a necessary party. In Morse v. Sadler, (1 Cox’s Cases, 352,) the Master of the Rolls decided, that every legatee, whose legacy was charged upon the real estate, must be a party to the bill. It is true, that case was overruled by Chancellor Kent, in Brown v. Rickets, (3 Johns. Ch. Rep. 553,) where it was held, that one legatee might file a bill in favor of himself and all others who might choose to come in under the decree. But even there, Chancellor Kent considers it necessary that the bill should state the fact that it is filed in behalf of the complainant and all others, &c. The reason of the rule seems to be, that the defendants may not be charged with a double defence. The creditor or legatee sues for his own debt or legacy, and claims nothing in behalf of others standing in the same situation, unless they choose to come in and make their claim; in which case they will be bound by the decree. They have a right to come in and make their claim in the first suit; and if they neglect to do it, the court will not subject the defendants to the expense of re-litigating the whole subject again in another action. In this case, the complainant has no interest whatever in this legacy, or any other. It is, therefore, the ordinary case of a trustee prosecuting a claim for the benefit *of the cestui que trust, in which the latter should be a party. (Kirk v. Clark, et al., Prec. Ch. 275; 2 Eq. Ca. Abr. 165, S. C.) For aught that appears in this case, Jonathan Howland may not wish to charge the defendants, or the estate, with the payment of the legacy of $340.

The release of the 16th of November, 1819, indorsed on the deed, can by no possible construction, operate as a re-conveyance of the farm, or any part thereof, to Samuel Howland. And although I am not satisfied from the testimony, that Daniel was actually deranged at that time, so as to render his acts void on that account, it is very probable he was so far intoxicated, that he does not recollect what did take place. There is not, however, that certain and satisfactory evidence of what agreement, if any, was made on that occasion, which would warrant this court in decreeing a specific performance, or in correcting the terms of the papers then executed.

The right of the vendor to an equitable lien on the estate sold, for the payment of the purchase-money, has frequently been drawn in question both in England and in the courts of this country. In England, and I believe in every state of the Hnion which has a court of chancery to give effect to such a lien, it is admitted to exist. But what is to be construed a waiver or abandonment of the implicated lien, is a question which is not well settled; and the cases on this point are not easily reconciled with each other. It may therefore be necessary for me to examine this question somewhat at length.

The earliest case which I have been able to find, in relation to this implied lien, is Chapman v. Tanner, before Lord Guilford, in 1684, (I Vern. Rep. 267.) By the report of that case, in Yernon, it appears the vendee had become bankrupt, and the question was, whether the vendor had a preference to be paid the purchase-money out of the proceeds of the lands, or must come in as a general creditor under the statute. And the lord keeper decided that there was a natural equity that the land should stand charged with the unpaid purchase-money, without any special agreement for that purpose. But, by a reference to the register’s book, it appears "^there was a special agreement in that case, that the seller should retain the title deeds until the purchase-money was paid. (Ambler’s Rep. 726; 1 Bro. Ch. Rep. 424, note b.) The next case, Bond v. Kent, (2 Vern. 281,) was decided a few years afterwards, while the great seal was in commission, after Chancellor Jeffries was killed by the populace. In that case the vendor took back a mortgage on the land for part of the purchase-money, and took the vendee’s note for the residue. And it was decided that there was no lien upon the land, as to that part of the purchase-money not included in the mortgage. Then followed the case of Coppin v. Coppin, (2 Peere Wms. 291,) where Lord King decided in favor of the vendor’s lien, notwithstanding a receipt for the purchase-money was indorsed on the conveyance of the estate. In Pollexfen v. Moore, (3 Atk. 272,) Lord Hardwicke charged the estate, in the hands of an heir at law, with the unpaid purchase-money due to the vendor. But in that case, too, as appears by the note of Mr. Sanders, the vendor retained the conveyances of the estate as security for the payment. Then followed the dictum of Sir .Thomas Clark, Master of the Rolls, in Burgess v. Wheat, (1 Eden’s Rep. 211,) where he expressly recognizes the general principle of the vendor’s equitable lien. The next case was Tardiff and wife v. Scrughan, which was never reported, but which is cited and referred to by Sir James Mansfield and Lord Rosslyn, in Blackburn v. Gregson, (1 Bro. Ch. Rep. 423.) In that case, the vendor conveyed the estate to his two daughters, in consideration of an annuity of 201, and took their joint bond to secure the payment of the same. One of the sisters married and died, and her husband, being entitled to a life estate in a moiety of the premises, refused to pay any part of the annuity. On a bill filed by the other sister and her husband, Lord Camden decided that a moiety of the annuity was a lien upon the estate, in the hands of the defendant; and directed that he should pay a moiety of the arrears, and keep down a moiety of the growing payments of the annuity. In Farwell v. Heelis, (Amb. Rep. 734,) Lord Bathurst declared, that taking the bond of the vendee for the purchase-money, payable at a future day,’ was a discharge of the equitable lien. *This is the last English case prior to the revolution, but has been frequently overruled since; and it cannot be reconciled with the case of Tardiff v. Scrughan, which immediately preceded it. In Blackburn v. Gregson, (1 Bro. Ch. Rep. 420,) the vendor took the bond of the purchaser, payable by instalments, and afterwards became a bankrupt. On a bill filed by the assignees of the vendor, it was attempted to charge the land, in the hands of the assignees of the vendee, who was also a bankrupt, with the unpaid purchase-money, on the ground of equitable lien. This question ivas argued at great length before the lords commissioners ; and Lord Rosslyn expressed a very decided opinion in favor of the lien; but the cause finally stood over on this point. It was afterwards re-argued, on the same point, before Lord Thurlow, (see 1 Cox. Ch. Rep. 90.) who avoided a decision of this question. The cause was finally disposed of on other points; and the question of lien was never decided. With the exception of the dicta in Walker v. Preswick and Harrison v. Southcote, (2 Ves. sen. 393 and 622,) there is no other reported case on the subject, until the case of Austin v. Halsey, (6 Ves. jun. 475.) There a legatee claimed to be substituted in the place of the vendor, in regard to the equitable lien; and Lord Eldon says, “I consider it clearly settled, that the vendor has a lien for the purchase-money, while the estate is in the hands of the vendee. I except the case where, upon the contract, evidently that lien, by implication, was not intended to be reserved.” A few months afterward, the case of Nairn V. Rouse, (6 Ves. 752,) came before Sir William Grant, Master of the Rolls, who declined entering into the general question whether every security taken for the purehasemoney, necessarily amounted to a waiver of the lien of the vendor. He declared it to be then settled, that equity gives the vendor a lien, for the purchase-money, without any special agreement to that effect. But if the vendor does not trust to that, and carves out a security for himself, he says it remains a matter of doubt, whether that does or does not amount to a waiver of the equitable lien. In Elliott v. Edwards, which came before the Court of Common Pleas the same year, (3 Bos. & Pul. 181,) a third person had become security for the purchase-money on the sale of a leasehold estate, but the assignment of the lease contained an express covenant that the purchaser should not under-let, assign, or -transfer the premises without leave of the vendor, until the purchase-money was paid. The court decided this was an equitable incumbrance on the estate, which might be enforced against a purchaser with notice. In the case of Hughes v. Kearney, (1 Scho. & Lef. Rep. 132,) which came before Lord Redesdale in the following year, the vendee gave his note for the unpaid purchase-money, which was put into the hands of a third person, as trustee, until the incumbrances on the estate could be ascertained, and paid off out of the same, and then the residue to be paid to the vendor. It washeld, that the balance of the purchase-money, included in the note, was a lien upon the lands, in the hands of the heir of the purchaser.

In Mackreth v. Symmons, (15 Ves. 329,) a bond had been given for the payment of the purchase-money, in the manner therein stated; and it was held, that the equitable hen on the land existed as against a purchaser with notice. Lord Eldon there refers to most of the previous decisions and dicta in relation to the general principle, which he considers well settled. But he renders the question, as to what shall be deemed a discharge of the lien, if possible, still more obscure. He even intimates, in opposition to the opinion of Sir William Grant, in Nairn v. Rouse, and taking a mortgage upon another estate, as security for the purchase money, might not be considered a waiver of the equitable lien on the premises sold. And in Grant v. Mills, (2 Ves. & Bea. 306,) the Master of the Rolls decided, that where the vendee drew bills on himself and his partner, obtained an acceptance thereof payable at a future day, and delivered them to the vendor for the purchase-money, the equitable lien was not discharged. He considered the bills only as a mode of payment, and not a security. I certainly should have come to a different conclusion, from the facts as stated in the report of that case. And the reasoning of the Master of the Rolls, upon the nature of the bills of exchange, would have been more appropriately applied to the case of a simple draft given in payment, where the additional security of the previous acceptance of a third person had not been required or agreed upon.

*In Ex parte Peake, (1 Mad. R. 346,) Sir Thomas Plumer decided, that the vendor’s receiving bills of exchange in payment of the purchase-money, did not discharge his lien upon the land. And in Ex parte Loaring, (2 Rose’s Ca. in Bank. 79,) where the vendor had taken a negotiable note from the purchaser at four months, and had it discounted, but which was returned to him on the .vendee’s becoming a bankrupt, it was held, that the equitable lien on the estate was not waived; Lord Eldon at the same time expressing his wish that this species of lien had never been admitted, where the vendor had accepted a different security. In the case of Saunders v. Leslie, (2 Ball & Beatty, 514,) before Lord Manners, in Ireland, about the same time, it was decided, that the acceptance by the vendor of the bond or note of the purchaser, payable at a future day, was no waiver of the lien. And a still more recent case is referred to in a note of Simmons & Stuart, where it was admitted, that the giving of the bond of the vendee did not discharge the lien, although, from the nature of the covenants in the bond given in that case, and the special circumstances then stated, it was decided the lien was gone. (Ex parte Parks, 1 Glynn & Jameson’s Rep. 228.) And in Winter v. Lord Anson, (1 Simons & Stuart’s Rep. 434,) which is the last English case to be found in any reports which have yet reached this country, Sir John Leach appears to be again travelling back to the decision of Earl Bathurst, in Farwell v. Heelis, which has been so often overruled. In this recent case before the Vice-Chancellor, the vendee gave his bond for the purchase-money, payable at the death of the vendor, and the interest thereof to be paid annually. A receipt for the purchase-money was indorsed upon the conveyance. It had been referred to a master to inquire if it was agreed between the parties that the bond should be accepted in payment, and that the vendor should have no lien upon the land. The master reported that it was not so agreed. But notwithstanding this, the Vice-Chancellor decided it was evident that the intention of the vendor was to part with the estate immediately, and to wait for the purchase-money till a future day, and consequently, that there was no lien for it on the land.

*It appears, from this review of the English cases, that the question, as to what shall be considered a waiver of the implied lien on the lands conveyed, for the unpaid purchase-money, is still unsettled in that country. But I am gratified to find, that in the American cases, so far as I have been able to discover, with one exception, there is a uniform current of authority in favor of what I consider, at this day, as the only correct rule on this subject; a rule which will enable vendors and purchasers to understand their respective rights, without the necessity of resorting to a court of chancery, to give a construction to the varying circumstances of each particular case.

The American case which I consider an exception to the uniform current of decision in this country, is The Representatives of Wragg v. The Comptroller General, in the chancery court of South Carolina, (2 Dessaus. Rep. 509,) and is founded upon the decision of Earl Bathurst, in Farwell v. Heelis, that the acceptance of the bond of the purchaser, payable at a future day, is a discharge of the equitable lien upon the land conveyed.

The general rule as to the vendor’s lien on the land, is recognized in the courts of Kentucky. But in Francis v. Halerigg's ex’r., (Harden’s Rep. 48,) where the vendor gave an absolute conveyance and took a bond for the purchase-money, in which a third person joined as security, the court decided there was no lien upon the land. In another case, (Cox v. Fenwick, 3 Bibb’s Rep. 183,) Judge Owsly acknowledges the general rule, but adds, “ The rule, however, is liable to various exceptions, as where the vendor takes a distinct and independent security for the purchase-money, or where, from other circumstances, it is clearly inferable that the vendor does not rely upon the lien on the land.”

The same principle has been recognized in the court of appeals in Virginia, In Cole v. Scott, (2 Wash. Rep. 141,) it was decided, that no security having been taken for the purchase-money, the vendor had a lien upon the land. But Pendleton, president, observes, “ If he hath taken a security, or the vendee hath sold to a third person, without notice, the lien is lost.” And in a subsequent case, where the vendor* had conveyed the land and taken a bond for the purchase-money, in which a third person joined as security, it was decided the lien was lost. (Wilson v. Graham's ex'r., 2 Munf. Rep. 297.)

In Gilman v. Brown, (1 Mason’s Rep. 214,) Judge Story held, that taking the notes of the vendee for the purchase-money, indorsed by a third person as his security, was a waiver of the lien; and his decision in that case was after-wards affirmed in the Supreme Court of the United States. (4 Wheat. 290.) In the case of Gurson v. Green, in this court, (1 John. Ch. R. 308,) Chancellor Kent recognizes the general doctrine of equitable liens for the purchase-money, and decides that taking the vendee’s note does not discharge the lien. But he does not attempt to lay down any general rule as to what will and what will not operate as a discharge.

Lord Eldon seems to think that the question of lien or no lien depends altogether upon the intention of the parties, and that each case must be determined upon that principle, and upon its own particular circumstances. If the actual intention of the parties was to govern the decision of the court, the lien would seldom be sustained; for it is probable that not one person in a hundred, who conveys or purchases real estate, is aware of the existence of such a principle of equity. A much safer rule, I apprehend, is, to sustain the implied lien whenever the vendor has taken the mere personal security of the purchaser only, and to consider any bond, note or covenant given by the vendee alone, as intended only to countervail the receipt of the purchase-money contained in the deed, or to show the time and manner in which the payment is to be made, unless there is an express agreement between the parties to waive the equitable lien; and on the other hand, to consider the lien as waived, whenever any security is taken on the land, or otherwise, for the whole or any part of the purchase-money, unless there is an express agreement that the equitable lien on the land shall be retained. This constitutes a safe rule, easily understood, and which I consider established by a weight of authority in this country which is not easily shaken. And I believe no English case, previous to the revolution, will be found in opposition to these *principles, except the case of Farwell v. Heelis, which is overruled by Chancellor Kent, in Green v. Garson.

Applying this rule to the case now under consideration, the lien which is claimed in this case, upon the land conveyed by Samuel Howland, cannot be sustained. The deed to Daniel Howland purports to be made in consideration of natural love and affection, and divers other good considerations. The object of the grantor was to dispose of his property after his death, and secure a legacy to his sonand, in the meantime, to retain the control of the property, so far as to secure to himself a maintenance out of the rents and profits thereof during his life. He did not rely on any implied lien upon the farm for this purpose, but carved out his own seciirity for his support, by a direct incumbrance upon the estate conveyed. For this purpose, he took back a life lease of the premises at a nominal rent; and the use farm, probably, was then considered an ample provision for his support. The recital in the bond shows that this life lease was the only security for the support of the vendor which was contemplated between the parties. Even the bond itself contained no covenant that Daniel should support the old gentleman. The condition merely recited the understanding of the parties, that Daniel was to have the use of the farm free of rent, so long as he did actually maintain and support his grand-father; and whenever he neglected to provide such support, the vendor had a perfect right to resume the possession of the farm, or to exact rent for the use and occupation thereof. This case, therefore, comes within the principle adopted in Bond v. Kent, (2 Vernon, 284,) expressum facit cessare taciturn; that where, by the agreement of the parties, there is an express lien upon the estate, for a part of the consideration of the conveyance, it excludes the idea of an implied lien for the residue. The same principle is also recognized by Chief Justice Marshall, in the case of Brown v. Gilman, already referred to.

The bill, as against the defendants, Solomon Howland and Robert Haight, must therefore be dismissed with costs. The complainant, as executor of his father-in-law, has a valid claim against the other defendants, for the use and occupation *of the premises after Daniel ceased to support the old gentleman, until the termination of the life lease; and that claim being now fairly before this court, I shall retain the bill against them for the purpose of an account and satisfaction of the rents and profits of the premises during that time.

The declarations of Samuel Howland, as to the abuse and bad conduct of Daniel, are certainly not legal evidence on which to found a claim in behalf of his personal representative. But the habitual intemperance of Daniel, and the consequences which must necessarily follow therefrom, together with other circumstances in the case, which are established independent of the declarations of the old gentleman, rendered it improper for Daniel Howland to have the care and support of his grand-father, at his advanced age. Daniel having, by his misconduct, forfeited all claim to retain the possession of the farm for the support of his grand-father, had no right to retain it, by transferring him to Pontus or any other person to be supported. The old gentleman had a perfect right to provide for his own support wherever He thought proper, which right he has exercised ; and Daniel and Pontus were bound to deliver up to him the possession of the farm during the continuance of the life estate therein; but having neglected to do so, they are accountable to his personal representative for the rents and profits thereof. And there must be a reference to a master, to take such account from the 16th of November, 1819, to the death of Samuel Howland. And the question of costs, as between the complainant and Daniel and Pontus Howland, and all further directions, are reserved.

        Stafford v. Van Rensselaer, 9 Cow. 316; Bradley v. Bosley, 1 Barb. Ch. 125; Warner v. Van Alstyne, 3 Paige, 513; Bailey v. Greenleaf, 7 Wheat, 46; Watson v. Wells, 5 Conn. 468; Jackman v. Hallock, 1 Hammond, 318; Tierman v. Beam, 2 id. 383; Patterson v. Johnson, 7 id. 226; Evans v. Goodlit, 1 Blackford, 246.
      In Connecticut, the doctrine of an equitable lien for the purchase-money has been somewhat modified. See Meigs v. Dimock, 6 Conn. 458. Church, J., in Atwood v. Vincent, 580, et seq. In Pennsylvania, it does not exist after the vendor has conveyed the legal title, as against a subsequent judgment creditor: Kauffelt v. Bower, 7 Sergt. & R. 64; Semple v. Burd, id. 286; Megargel v. Saul, 3 Whart. 19: and has been exploded in North Carolina. Womble v. Battle, 4 Ired. Eq. Ca. 182. The Supreme Court of the United States held, that it cannot be asserted against creditors, holding under a bona fide conveyance from the vendee, nor a subsequent bona fide purchaser without notice: Bailey v. Greenleaf, 6 Wheat, 46; 5 Cond. 229. This decision is condemned in Swelves v. Williams, 3 Whart. 493; and in New York dissented from, unless the conveyance or mortgage to the creditor be founded on some new consideration, without notice of the lien. See Shirley v. Sugar Refinery, 2 Edwards, 505. But if the vendor takes security from a third person, he loses his lien. Vail v. Foster, 4 Comst. 312; either in whole or in part; Shirley v. Sugar Refinery, supra. But the mere taking of a promissory note from the vendee, subsequent to the conveyance, will not act as a waiver; and it rests on the purchaser to prove that it was intended to operate as such. Id. Chancellor Kent favors the decision of the Supreme Court in Bailey v. Greenleaf, 7 Wheat. 46; see 4 Kent, 154, n. f.
      This doctrine in regard to vendors’ liens seems to be derived from the Roman law, which passed the property unconditionally to the purchaser, if the seller took another pledge, or other security: Venditce vero res et traditos non aliter emptori acquiruniur, quam si is venditori preiivm solverit, vel alio modo ci satisfecerit, veluti ex promisors out pignore data. Just. 2, 1, 41.


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    Birdsall, adm’x v. Hewlett and others.
    Where a testator devised certain real estate to his widow for life, or during her widowhood, and after her death or marriage, devised the same to his nephew in fee, provided he paid the legacies mentioned in the will, and directed that the legacies should be paid by the nephew, his heirs, executors, or administrators, whenever he or they should come into possession of the premises devised, it was held, that a payment of the legacies was a condition of the devise; and that if the devisee or his heirs should refuse to *accept the devise and pay the legacies, the estate would descend to the heirs at law of the testator; but it would, in equity, be chargeable with the payment of the legacies.
    If the devisee accepts the devise, he becomes personally liable for the legacies.
    The legacies, however, are, notwithstanding the personal liability of the devisee, an equitable charge upon tire estate.

      May 19th.
    It is a general rule, that legacies chargeable upon the real estate and payable at a future day, are not vested, and lapse by the death of the legatees before the time of payment arrives.
    But this rule has never been extended to a case where the estate was given to a stranger, upon condition that he paid the legacy charged thereon; and the rule has been much limited, even as between the legatees and heirs at law.
    Where the time of payment of the legacy is postponed for the benefit of the estate, and not with reference to any particular circumstances in relation to the legatee, the legacy becomes vested at the death of the testator, and is transmissible to the personal representatives of the legatee, although he dies before the time of payment arrives.
    Where the deviseo of the real estate, charged with the payment of the legacy, refuses to pay the same, the costs of the legatee’s suit to recover the legacy, will he a charge upon the real estate. A legacy carries interest from the time it becomes payable.
    James Hewlett, the elder, who died in 1805, devised certain real estate to his widow for life, or during her widowhood; and after her death or marriage, he gave the same to his nephew, James Hewlett, in fee, provided he paid the legacies mentioned in the will. He then gave divers legacies to his relatives, and among others, 100% to John Birdsall; and he directed these several legacies to be paid by the nephew, his heirs, executors, or administrators, whenever he or they should come into possession of the premises devised. James Hewlett, the devisee, and John Birdsall, both died in the life time of the widow, but after the former, by some arrangement with her, had entered into the estate devised, and sold and conveyed a part thereof of fee. The widow died unmarried in 1825. And the defendants, who are heirs at law of James Hewlett, the nephew, and in possession of part of the real estate devised to him, refuse to pay the legacy to the complainant, as the personal representative of John Birdsall.
    The cause was submitted upon bill and answer, and the written arguments of counsel, as against L. S. Hewlett, and on the bill taken pro confesso, against the other defendants.
    *McCoun, for complainants.

      W. Tallmadge, for defendant, L. S. Hewlett.
   The Chancellor :—The payment of the legacies is a condition of the devise; and if the devisee, or his heirs, refuse to accept the devise and pay the legacies, the estate descends to the heirs at law of the devisor, but, in equity, chargeable with the payment. In this case, the devisee having accepted the devise, was personally liable for the legacies; but they are also an equitable charge upon the estate devised, in the hands of the defendants.

It is undoubtedly a general rule, that legacies charged upon the real estate, and payable at a future day, are not vested, and become lapsed if the legatee dies before the time of payment arrives. This rule was at first adopted without any exceptions, and in direct opposition to that which existed in relation to legacies payable out of the personal estate. This was done for the benefit of the heir at law, who was a particular favorite of the English courts. I am not aware that it has ever been extended to a case where the estate was given to a stranger, upon the express condition that he paid the legacy charged thereon; and the rule has long since been much narrowed down, even as between the legatees and the heir at law.

In this case, the estate being given upon the express condition of the payment of the legacy, and the time of payment being postponed for the benefit of the estate, and not with reference to any particular circumstances in relation to the legatee, which might render it doubtful whether the legacy would ever be wanted, the legacy became vested at the same time that the estate in remainder became vested in the devisee: that is, at the death of the testator. It was transmissible to the personal representatives of the legatee; and the complainant is entitled to a decree for the payment out of the estate.

The defendants having neglected and refused to pay the legacy, by which the complainant has been put to the expense of this litigation, the costs of the suit must also be ^charged upon the estate. The legatees are also entitled to interest from the time when the legacies became payable, by the death of the widow. (Glen v. Fisher, 6 John. Ch. Rep. 33.)

        Glen v. Fisher, 6 John. Ch. 33.

       This rule has been changed by statute in New York, in 1830. See 2 R. S. (4th ed.) 248, sec. 45; Bishop v. Bishop, 4 Hill, 138, as in most of the other states.

        Marsh v. Wheeler, 2 Edward’s Ch. 156, 163; Harris v. Fly, 7 Paige 421; Kibler v. Whiteman, 2 Har. 401; Donner's Appeal, 2 Wats. & S. 327.


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    Dale and others, Executors of Fulton v. Rosevelt.
    May 20th.
    An injunction is not waived by a delay in applying for an attachment for its violation.
    Where executors obtained a decree for a perpetual injunction, restraining R. from suing or prosecuting any action at law against such executors or other representatives of their testator, for the recovery of the arrears of an annuity; held, that the prosecution of a suit at law against the heirs of the testator, who were not parties to the suit in this court, to recover the same annuity, was not a breach of the injunction. There is no privity between an executor and the heir or devisee of the land.
    A record cannot be read as evidence in a suit, unless both parties, or those under whom they claim, were parties to the suit in which the record was filed.
    A decree in a suit in which executors are parties, is not binding upon the heirs of their testator, unless such heirs are also parties to the suit.
    The defendant in this suit brought an action in a court of law to recover the arrears of an annuity against the complainants as executors of Robert Fulton. The complainants filed their bill in this court, and obtained a decree for a perpetual injunction, restraining Rosevelt from suing or prosecuting any action or suit at law against the complainants or other representatives of Fulton, for the recovery of the annuity. (See the case reported in 5 John. Ch. R. 174 and 255, and in 2 Cowen’s Rep. 129.) After the determination of this suit, Rosevelt brought a suit in the Supreme Court against the heirs at law of Fulton, who were not parties to the suit in this court, to recover the same annuity. That suit has been pending two or three years, and two trials have been had therein. Dale, the surviving complainant in this suit, now makes an application in his own name for an attachment against Rosevelt and his attorney, for an alleged breach of the injunction in this suit, by the proceeding at law against the heirs.
   *The Chancellor :—There is nothing in the objection, that the injunction has been waived by the neglect to apply sooner to this court, because the counsel for the heirs in the suit at law have constantly protested against the proceedings there; and it does not lie with Rosevelt to complain that he has not sooner been punished for violating the injunction, if a contempt has in fact been committed.

The objection that Dale has no interest in this question, and therefore has no right to complain of the breach of the injunction, would probably be a valid one if the heirs were adults; and even in the case of infants, it would have been more regular if the application appeared in the notice to be made in their behalf, as their guardian or next friend.

If they are entitled to the benefit of the decree, they have a right to apply directly to the court for protection; and this court will not be very rigid in insisting upon that which is mere form, where the application is in fact for the protection of the rights of infants, but will look into the real merits of the application.

The more important question here is, whether the prosecution of the suit at law against the heirs was a breach of the injunction. In the case of Mason’s devisees v. Peter’s administrators, (1 Mun. Rep. 446,) it was held by Judge Tucker, that there was no privity between an executor and the heir or devisee of the land. The same principle is recognized in the Supreme Court of this state, in Osgood v. The Manhattan Company, (3 Cowen’s Rep. 622.) A record in one suit cannot be read as evidence in another, un^ess both parties, or those under whom they claim, were parties to both suits; it being a rule, that a record cannot be used against a party who could not avail himself of it, in case it made in his favor. (1 Munford, 394, and 1 Hen. and Mun. 165, per Roane, J.) In Payne v. Coles, Judge Roane says, it is a rule of evidence, that no person can take the benefit of the proceedings in any suit, or any verdict, who could not have been prejudiced thereby, if it had gone against him. (1 Mun. 394.)

The decree in this suit was not binding upon the heirs of Eulton, they not being parties to the suit; and it cannot be *binding upon Rosevelt as between him and them. That the decree could not be binding upon the heirs, was decided by Chancellor Kent on the rehearing in this case. (5 Johns. Ch. Rep. 257.) The heirs are not permitted to take advantage of the perpetual injunction which was granted at the suit of the personal representatives; and the prosecution of the suit at law against the heirs was not a breach of the injunction.

Motion for attachment refused.

       2 Cowen & Hill’s notes to Phil. Ev. 7.


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    Vermilyea v. The Fulton Bank, Levitt and others. Thorp and others v. Selden and others.
    The officers of a corporation may be made parties to a bill of discovery, to enable the complainants to obtain a knowledge of facts which could not be arrived at by the answer of the corporation put in without oath.
    The corporation ought also to be permitted to put in a separate answer, in order to make offers and admissions, and to deny facts which the officers may suppose do exist.
    Upon the answer of the officers or agents of the corporation, no decree for relief can be founded either as against them or the corporation.

      After putting in their answer, they may be sworn as witnesses on the part of the complainant, and the corporation will have the benefit of their cross-examination.
    Selden, for complainant, moved that separate answers of the bank and Leavitt be taken off the files of this court, and that they file a joint answer.

      Hoyt and Tolcott, (attorney-general,) contra.
    Like motion. R. Emmett, for motion.

      Hoyt and Attorney-General, contra.
   The Chahcellor. :—It is now well settled, that officers of a corporation may be made parties to a bill of discovery, for the purpose of enabling the complainant to obtain a knowledge of facts which could not be ascertained by the answer of the corporation, put in under their corporate seal, and without oath. But what is to be the effect of that answer of *the agent or servant of the corporation, is a questian that does not seem to have received any formal adjudication in this court. If it is to be binding and conclusive upon the corporation, I can see no necessity for making the agent a party to the bill. The better course would be for the plaintiff to state in his bill those facts and circumstances which require an answer from the corporation out of the usual form, and apply to the court for an order that some or all the officers or agents of the corporation swear to their belief of the truth of the matters contained in the answer. This course was decided by the late Chancellor Kent to be inconsistent with the law of this court, and such an application was refused. (Brumley v. Westchester Manuf. Society, 1 John. Ch. Rep. 366.) If the object of making the agent a party is for discovery, to enable the plaintiff to understand his rights and to direct his inquiries, either by amending his bill or in the subsequent examination of witnesses in the cause, there is a manifest propriety in letting the corporation answer in the usual way, and compelling the agent to make the discovery of any facts within his knowledge by his separate answer. The corporation may wish to make admissions, offers or concessions, with which the party joined for discovery merely has nothing to do. And, on the other hand, they may wish to disprove facts which the agent actually supposes to exist; which they cannot do, if they are compelled to incorporate his statements in their answer. In Wych v. Meal, (3 Peere Wms. Rep. 312,) Lord Talbot says, “Notwithstanding the answer of the officer cannot be read against the company, yet it may be of use to direct the plaintiff how to draw and put his interrogatories, towards obtaining a better discovery.” And in a subsequent case, in which it was sought to make the wife a party for the purpose of discovery, Lord Eldon, in comparing that case with the case of an agent of a corporation, says, “In the case of the agent, there is the answer of a party who may be converted into a witness; but in the case of the wife, her answer cannot lead to her examination as a witness. Her case, therefore, cannot be compared to that of an agent of a corporation.” (15 Ves. Rep. 165.)

*From these dicta it appears, that as against the agent of the corporation, it is a bill of discovery merely, and that no decree for relief can be founded on his answer, either as against him of the corporation. The plaintiff may after-wards use him as a witness, and the corporation will have the benefit of a cross-examination, or may disprove the matters contained in his answer. The motion must, therefore, be denied.


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    Isnard v. Cazeaux.
    Notice of every application to the court must be given to the opposite party, in case he has appeared, where the motion relates to any matter pending in court, or where a final order is sought, orders for time, and those of a like nature alone excepted; otherwise the applicant or petitioner will only be entitled to an order nisi.

    May 21st.
    And copies of every petition, affidavit, &e., upon which the motion is founded, must be served, together with the notice of the motion.
    Where an order had been obtained on an ex parte application, that the complainant be admitted to prosecute in forma pauperis, the same was vacated with costs.
    A party must be an object of charity, otherwise the privilege of prosecuting in forma pauperis, Will not be granted to him.
    Applications for this privilege afe not encouraged
    C. Graham, for the defendant,
    moved to set aside an order obtained in this cause, that the complainant be admitted to prosecute this suit in forma pauperis. By the affidavits, it appeared, that long after the defendant had put in his answer, the order was obtained on an ex parte application to the late Chancellor, without any notice to the defendant’s solicitor. It also appeared that the complainant was living in genteel style, occupying a house at a rent of $400 per annum; had considerable sums, from time to time, standing to his credit in the bank; and was a healthy man, capable of earning a living.

      A. Rapallo, for the complainant,
    cited Wyatt’s Prac. Reg. 319, and Har. Ch. 379, to show the practice was regular.
   *The Chancellor :—It does not distinctly appear from the authorities cited, what is the practice in the English Court of Chancery, as to giving notice of the application to prosecute in forma pauperis, after the defendant has appeared. It is stated in Harrison’s Prac. 390, and Wyatt’s Prac. Reg. 319, that on presenting the petition, if no cause appears against it, the order is directed to be entered agreeably to the prayer of the petition; which seems to imply that the adverse party may appear and oppose, or show cause against the application. But whatever may have been the English practice, this case must be determined by the rules and practice of this court. And on this subject we are not left to conjecture. The 40th rule expressly provides, that a copy of every petition, affidavit, &c., relating to any matter pending in court, or on which a final order is sought, shall be served on the adverse party, with notice of presenting the same, and of the motion to be founded thereon; otherwise, the applicant or petitioner shall only be entitled to an order nisi. The settled practice of the court under this rule, after appearance, is to give to the opposite party notice of every application to the court, where he has any interest, to appear and show cause why the. same should not be granted, orders for time and of a similar nature alone excepted. This is one of those cases where the defendant had a direct interest in the question to be determined, and was entitled to notice of the application, and to be heard in opposition thereto. Neither can this order be sustained upon the merits. Applications of this kind are not to be encouraged in this state, where every healthy and industrious citizen can earn sufficient to support himself, and also to enable him to pay the moderate fees of the officers of this court. Even in England, where the stamp duties and the fees of office are so burdensome to the suitor, a party was dispaupered because it appeared he was in possession of the premises in controversy, a cottage worth only 40s. per annum: (Spencer v. Bryant, 11 Ves. 49.) In this country, the court must be convinced that the party is really an object of charity before it will grant him this privilege. At the time this order was granted, the complainant had considerable sums of *money under his control in the bank; occupied a house at $400 rent, and kept a servant, &c. He was living in a style which a majority of the solicitors and counsellors of this court could illy afford, and at an expense which the compensation allowed to most of the judicial officers of the state would not have enabled them to sustain. He was not an object of charity, and had no claims upon the officers of this court for their gratuitous services.

The order allowing him to prosecute his suit as a pauper must he vacated; and he must pay the costs of this application.


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    S. & W. Southgate v. Montgomery & Eivers.
    May 23d.
    Courts of law have concurrent jurisdiction with the Court of Chancery in the examination of accounts between parties.
    Where a party has elected a court of law as the forum for the examination of the accounts, after a decision in such court of law, he cannot come into a court of equity and have the same accounts re-examined.
    Where there existed mutual accounts between M. and E., and E. sued M. in a foreign court for a settlement, and judgment was rendered against E., and afterwards a suit pending in the Supreme Court of this state, commenced and prosecuted by the assignees of M. in the name of M. against E., was referred to referees, who reported a balance due to E. from M., on which report judgment was entered in favor of E., it was held, that the judgment against E. in the foreign court was not binding upon E. as between him and the assignees of M., and that if that judgment was binding upon B., as it was known to the assignees previous to the hearing before the referees, it should have been insisted upon by them at that hearing, and could not afterwards be a ground of relief in this court.
    In Chancery, a judgment recovered in a court of law is considered as binding upon the real parties in the suit, although not the nominal parties on the record.
    A court of chancery will judicially notice the fact, that courts of law recognize and protect the rights of assignees suing in the name of their assignor.
    On the 16th May, 1810, the defendants were severally doing business in the West Indies, and the plaintiffs were merchants at Norfolk, in Virginia. The defendants had private dealings or accounts, and had also a quantity of lumber and provisions belonging to them jointly, which had been recently consigned to Hancock & McCormick, of St. Croix, to be *sold on their joint account. Montgomery had also in his hands a protested bill of exchange, drawn by Eivers in favor of McGregor or order, for 4201 10s. 8d. sterling, which had in fact been sent to Montgomery to collect for the plaintiffs, but which Eivers, in his answer, swears he then, and for a long time after-wards, supposed belonged to Montgomery. At the time above mentioned, the defendants stated their accounts, and found a balance due to Montgomery of $3,732 77, which Eivers promised to pay with interest; and by a memorandum indorsed on the account stated, Eivers appropriated his half of the net proceeds of the provisions and lumber in the hands of Hancock & McCormick, and in the hands of Montgomery, to the payment of that balance. He also, at the same time, took up the protested bill, and gave to Montgomery, therefor, an agreement as follows:

    I promise to pay unto Robert Montgomery, or order, 5157 11s, 11c?. sterling, bearing protested bill interest from 31st January last, till paid, say 5157 11s. 11c?. sterling, being for value in my bill protested on Messrs. Robert Burke & Co. of Cork, liable to a special count. St. Croix, 16th May, 1810. (The above to be paid out of my one half proceeds of provisions and lumber addressed to Messrs. Hancock & McCormick, Bass End, after deducting your accounts,)
    OwB$r Eivbes.”
    On the 1st of July, 1811, Montgomery transmitted to the plaintiffs 2007, together -with the last mentioned agreement, on which he made two indorsements; the one acknowledging the receipt of the 2007 as the whole amount of the balance in his hands of the proceeds of provisions and lumber, and by the other, ordering the balance to be paid to the plaintiffs. They received the money and contract, and ratified the act of Montgomery in giving up the protested bill and taking this contract in lien thereof. In July, 1817, the plaintiffs sued Eivers in the name of Montgomery, in the Supreme "sCourt of this state, to recover the balance due to them on the agreement; the result of which suit appears by the report of that case. (Montgomery v. JSivers, 17 John. R. 38.) In October, 1810, they commenced another suit in the same court, in the name of Montgomery against Eivers. That suit was referred to referees, and finally heard before them in April, 1822, when they found and reported a balance due from Montgomery to Eivers of $208 15, on which judgment has been subsequently entered in favor of Eivers in that court.
    In May, 1822, the plaintiffs filed their bill in this cause, setting forth substantially the above facts, and alleging, among other things, that by the depositions taken in the last mentioned suit, and used before the referees, it appeared that in 1820, Eivers sued Montgomery in the town court of Erederickstadt, in the island of St. Croix, for the final settlement of all their accounts, and that a balance was then found due to Montgomery from Eivers of about 200 pieces of eight; that on the hearing before the referees, the counsel of Eivers produced an account in the handwriting of Montgomery, which the plaintiff’s counsel were not apprised of until a short time before the hearing, when it was shown to them to obtain their admission of the genuineness of the handwriting, and they allege it must have had an influence on the minds of the referees. The plaintiffs allege that they do not know what was allowed on the one side or the other by the referees, and are unacquainted with the state of accounts between the defendants, and of course do not know which of the defendants ought to pay the balance due them for the protested bill of exchange; and they pray that the defendants may be compelled to discover which of them is Hable to pay the same, and that payment may be decreed against the one who ought to pay. Eivers, in his answer, insists there is a balance due to him from Montgomery more than sufficient to satisfy the balance due the plaintiffs, and which, accrued long before he had any knowledge of their interest in the contract of the 16th May, 1810. He admits his counsel produced the account before the referees, as stated in the bill, but denies it was fraudulently or unfairly done, or was intended as a surprise upon the plaintiff’s counsel. On the contrary, he says *it was shown to such counsel, and a copy thereof given to them the day previous to the hearing. He insists that the claim of the plaintiffs in res adjudícala as between him and them, and alleges that the balance found against him in the town court of Erederickstadt, of which he has heard, was unjust, and was caused by the sickness of his attorney at that place, which prevented him from properly attending to his rights before that court.

      G. Griffin, for complainants:
    The defendants severally deny their liability. The bill filed in this cause is like a bill of interpleader. The defendants have rendered it necessary by their own conduct. The remedy at law is doubtful and difficult. A party may first litigate to a final decision at law and then come into Chancery, upon the ground that the remedy at law is difficult. The complainants were not parties on the record to the suit at law. Hot being so, there is no technical estoppel at law, and therefore no equitable estoppel here. Eivers is estopped by the judgment recovered in the West Indies. Res adjudicata abroad is of equal effect as at home. (Gelston v. Hoyt, 1 John. Ch. R. 543. Griswold v. Pitcairn, 1 Con. R. 85.) The only exception is, where the successful party sues here, and the decree is in a foreign admiralty court. (King v. Baldwin, 17 John. R. 384; Duncan v. Lyon, 3 John. Ch. R. 351; Foster v. Wood, 6 John. Ch. R. 87; Bateman v. Willow, 1 Sch. & Lef. 205; Mitchell v. Harris, 2 Ves. jun. 135; Wilmot v. Leonard, 2 Swans. R. 682; Colwell, 93; 3 Atk. 644.)

      Ogden and E. Clark, for the defendant Eivers.
    The complainants being parties to the suit in the Supreme Court are precluded from relief in this court. They adopted the act of Montgomery. (17 John. R. 38.) In the second suit, the complainants were necessarily bound to show the state of the account between Montgomery and Eivers. This is an application to review the decision of the Supreme Court. It is res adjudícala there. The only equitable ground stated in the bill, is the alleged surprise and fraud in the production of the account in the handwriting of Montgomery, before the referees; and this is denied by the answer, and not established by any *proof. In the trial in St. Croix, the complainants were not parties. In the suit in the Supreme Court here, they were the real parties, and were bound by it. (Hawley v. Mancius, 7 John. Ch. R. 174; Shottenkirk and others v. Wheeler and others, 3 John. Ch. R. 275; De Reimer v. Cantillon, 4 John. Ch. R. 85; French v. Shotwell, 6 John. Ch. R. 235.)
   The Chancellor:—If the expression, “ after deducting your account in the agreement of the 16th May, 1810,” refers to an account of Hancock and McCormick, to whom the draft or agreement appears to be addressed, and not to the account of Montgomery, which was liquidated at the same time, the plaintiffs have nothing to do with the general accounts between the defendants; because Eivers’ half of the fund then in the hands of Hancock and McCormick, which Montgomery afterwards received, together with the 80 puncheons of meal, which he also received from them, as appears from the testimony of Hancock, stated in the plaintiffs’ bill, amounted to 6,634 pieces of eight 5 bits and 3 stivers, (equal to $4,246 21;) a sum nearly double the amount due to the plaintiffs in the bill, independent of the sum of 3,954 pieces of eight and 5 bits, received by Montgomery for the provisions and lumber, sold by his agent Peter Montgomery, one half of which also belonged to Eivers. But if, as I am inclined to believe, the intention of the defendants was, that the amount due to Montgomery on their general accounts, was first to be paid out of the proceeds of the provisions and lumber, there would not be enough to pay both demands. There would still be a deficiency of 6 or 700 dollars, after including in Eivers’ share of the fund one half of the amount received from Peter Montgomery. And Eivers having dealt with Montgomery in relation to the bill of exchange, without any knowledge of the plaintiff’s claim, it would be necessary to go into the general accounts between the defendants, to ascertain which was equitably bound to pay the balance due to the complainants. This being a complicated account, the plaintiffs, in the first instance, would have been entitled to call Eivers into this court, for the purpose of having that account taken here. Whether they could bring both defendants here, and compel them to settle their accounts between themselves, on the principles of a bill of inter-pleader, which I am inclined to think they might under the particular circumstances of this case, is a question not necessary to be decidéd at this time. They also had a right to prosecute Eivers in a court of law, in the name of Montgomery ; and the trial at law, under the decision of the Supreme Court in the first suit, necessarily required an examination of the accounts between Montgomery and Eivers. The court of law had concurrent jurisdiction with the Court of Chancery in examining that account. The plaintiffs elected their forum after the decision of the Supreme Court had apprized them of the necessity of going into these accounts: and having failed to establish their claim in a court of law, under such circumstances, the question now presented is, can they re-examine the same subject here as against the defendant Eivers ?

The judgment against Eivers in favor of Montgomery, in the Island of St. Croix, in 1820, cannot be binding upon Eivers, as between him and the plaintiffs in this suit, for a variety of reasons. It was recovered about two years before the hearing before the referees, and was known to the plaintiffs at the time of such hearing, as it appeared in the depositions used by them on that occasion. It was conclusive as to the state of the accounts, it should have been used and relied on by the plaintiffs for that purpose on that occasion; and they having neglected to insist upon it, they cannot now ask relief in this court on that account. (Foster v. Wood, 6 John. Ch. Rep. 87.) Again, the plaintiffs were not parties to the West India suit, and it was brought long after Eivers was apprized of their equitable interest in the contract respecting the protested bill. The decision of that cause could not, therefore, have been binding upon them; and of course cannot now be relied upon as res adjudicata in their favor. (Paynes v. Coles, 1 Mumf. Rep. 373; and per Roane, J., 1 Hen. and Mumf. 165.) This question has been fully examined and decided in this court, in the case of Dale v. Rosevelt, but a few days since. I have examined the statements in the bill and the admissions in the answer of Eivers, and cannot discover any evidence that the decision of the referees in *the suit at law was not perfectly equitable. I cannot, in the absence of all proof, presume that the referees allowed the wdiole of the credit in the account put in by the attorney of Eivers, when they had before them the depositions of Hancock and Peter Montgomery, showing that it was a partnership transaction; and showing also the actual amount received by Montgomery on account thereof. Neither do I understand from the plaintiff’s bill that they are certain that any injustice was done in that suit; but they wish the defendants now to litigate and settle their accounts between themselves, that the plaintiffs and the court may know whether injustice was done in the suit at law; and if it was not, that Montgomery may pay their debt. The allegation in the bill of fraud in the production of the account before the referees, is fully denied by the answer; and this court cannot now disturb the judgment on the report of the referees. Although the plaintiffs were not nominal parties in that suit, they state in their bill that they were the real parties. They prosecuted in the name of Montgomery, as assignees of the chose in action; and the decision must, therefore, in this court, be considered as binding upon them, as if they had been the nominal as well as the real parties on the record; for this court will judiciously notice the fact, that courts of law recognize and protect the rights of such assignees, suing in the name of the assignor.

The reasoning of Judge Radcliffe, in Leguin v. Governeur and Kemble, (1 John. Ca. 436,) is, to my mind, conclusive to show that the judgment of the Supreme Court, on the report of the referees, ought not to be disturbed by reason of anything that appears in this case. And the principles there laid down by him are expressly sanctioned by Ch. J. Spencer, in Simson v. Hart, in the Court of Errors. (14 John. Rep. 63.) This question was also fully and ably examined by the late Chancellor Kent, in the same case in this court. (1 John. Ch. Rep. 91.)

The plaintiff’s bill, as against the defendant, Elvers, must be dismissed with costs. The other defendant having made default at the hearing, the plaintiffs may take such a decree against him as they can abide by.