text:
    Hart and others vs. Dewey and others.
    Merchants can by agreement prescribe the mode of charging and crediting interest upon the several items in running accounts between them, provid. ed the mode adopted is not intended to be and is not in fact a cover for usury.
    In the absence of any agreement, a creditor receiving a partial payment of a debt has the right of applying it first to the satisfaction of the interest then due before it is applied to the discharge of any part of the principal.
    This was a bill filed by judgment creditors to reach certain property of their debtor in the hands of others. The cause was heard on exceptions to a master’s report and on the equity reserved.

      S. A. Foot, for the complainants.

      G. F. Tallmnn, <Sf R. Sedgwick, for the defendants.
   The Chancellor.

The report of the master as to the amount due from Nathan must be confirmed. That amount appears from the report to be $435,06, casting the interest as Nathan insisted it should be cast in the account between him and Dewey. In running accounts between merchants, they have a right to agree upon the manner in which interest shall be charged and credited on the several items of debt and credit therein; provided it is not intended to be and is not in fact a cover for usury. Where there is no agreement or understanding to the contrary between the parties, the party receiving a partial payment has a legal right to apply so much thereof as is necessary to the satisfaction of the interest then due, before any part of the principal is cancel-led. But the parties may agree upon a different mode of doing the business, and may keep an interest account upon the, items received and paid out. And this is the difference between . the legal and the mercantile mode of computation. Perhaps in running accounts the latter is the most convenient mode. It certainly is not usurious. By the report of the master, it appears that the balance against Nathan, according to his own account, was $98,40, and that there was also due $336,66 for interest" which he admitted was not included in that account through mistake. His counsel understanding his interest, if. not his rights, better than he did himself, afterwards, obtained a certificate from the master showing what the balance would be according to the legal mode. of computing the interest. ' That however is no part of the'master’s report of the balance due. It is a mere computation to show what the. interest would be by' that method of computing it." .The decision of the master was that $435,-06 was due; and it wak to that decision the counsel to Nathan should have excepted if he was dissatisfied therewith. That amount, with interest from the date of.the master’s report after deducting therefrom his costs in this suit to be taxed, must be paid over to the complainants or their solicitor in part satisfaction of their debts.

If The Gas Light Company consents to the sale of the stock held by them .as a collateral security to satisfy their debt and costs, so that the complainants can have the balance of the proceeds' thereof, it must be sold at public auction under the direction of a master; and all necessary parties must join in the transfer thereof to the purchaser. And out of the proceeds thereof, the amount due The Gas Light Company with interest, after deducting dividends, to be ascertained and séttled by- the master, must be first paid, and then their costs and the .costs of the president and secretary, except such, part thereof as has been produced by unnecessarily serving in their defences,' must be next paid; and the balance must be applied to the payment of the complainants’ judgments and their costs in this suit to be taxed. And the residue if any, is to be brought into court. But if The Gas Light Company do not consent to the sale, there must be a reference to a master to ascertain the amount due to them, and the stock must be sold subject to that lien ; aind the purchaser must be permitted to redeem on paying the amount due with interest, at any time within three months after the sale. If they subject the other parties to the probable loss which will be occasioned by the latter inconvenient mode of selling, the company and their agents, who are parties in this suit, must bear their own costs. The complainants are also to be at liberty hereafter to apply on the foot of this decree for such further and other relief, to reach any other property or effects of the defendant Dewey, as may be just; and all other questions and directions are to be reserved.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Badeau vs. Rogers and Secord.
    The object of a bill of interpleader is to protect a complainant standing in the situation of an innocent stakeholder, and where a recovery against him by one claimant of the fund might not protect him against a recovery by another claimant.
    It is not necessary to file a bill of interpleader where the holder of the fund is already a party to a suit in chancery, brought by one claimant against the other to settle the right to the funds in his hands.
    In such a case the holder of the fund should apply by petition in that suit for leave to pay the fund into court to abide the event of the litigation between the other parties.
    If a defendant permits a bill of interpleader to be taken as confessed against him, it is an admission that as to him the bill was properly file’d, and that he has made an improper claim upon the fund.
    The complainant is entitled to his costs out of the fund only in those cases where the bill of interpleader is necessarily and properly filed as against both defendants.
    But if one of the defendants suffers the bill of interpleader to be taken as confessed against him, he will be personally charged with all the costs which have been produced in consequence of his unjust claim upon the fund.
    May 4th
    The complainant filed his bill in this cause in the nature of a bill of interpleader, to redeem a mortgage given by G. Underhill to D. Pelton, J. Bonnet and D. Rogers, junior, as executors of W. Henderson ; which mortgage was a lien on property which now belongs to the complainant. Pelton and Bonnet, two of the executors of Henderson, in 1823, assigned the mortgage to Secord. After their death, Rogers filed a bill against Secord to'set aside* the assignment.. Se-cord " applied to the complainant in this cause to pay the mortgage, and offered to indemnify him against the claim of Rogers. The complainant declining to pay‘the money, Se-cord, filed a bill against him. to foreclose the mortgage; Rogers afterwards amended his bill and made Badeau a party defendant therein. This- bill was then filed ;, and in June, 1-82*7, an order was. made staying all proceedings in the- other suits against the complainant, upon his paying into court the amount due on the mortgage with interest. The money was paid to the assistant register, and.the bill in this- cause. was afterwards taken as confessed against the defendant Rogers. Secord put in .his answer, insisting upon his right to the money, and that the complainant ought to pay the costs of the foreclosure suit which had been- occasioned by his unreasonable refusal to pay over the money on the offer of a full' indemnity. ,

      P. A. Jay, for the complainant.
    . W. Silliman, for" the defendant Secord'. . ' '
    W". JV. Dyckman, for the defendant Rogers.
   The Chancellor.

: The object of a bill of interpleader is to protect the complainant where he stands in the situation of a stake holder, not knowing to whom- to pay the money or to deliver the property in his hands -f and whére a recov- ‘ ery against him at the suit of one party might not be a protection against the claim' made by the other.. Such does not appear to have been the situation of the complainant at the time this bill was filed. All the'present parties were then before the court in the suit commenced by Rogers' in relation to the alleged fraud in the assignment; and the complainant and Secord were also before this court in the suit commenced by ihe latter for the foreclosure of the mortgage. Without reference to the offer to indemnify the complainant against the claim of Rogers, there was therefore no necessity for filing this bill. If the complainant had’ presented a‘ . petition to the court in those two suits,p there can be no- doubt that the chancellor would have authorized him to pay the money into court, to abide the event of the litigation between Rogers and Secord, and would have stayed all further proceedings against him. (Lowe v. Richardson, 3 Mad. R. 277.) If Rogers had answered in this suit and claimed the money, and had insisted on these facts, I should have thought it my duty to dismiss this bill as unnessarily and improperly filed. But by suffering it to be taken as confessed, Rogers admits it to be properly filed as against him, and that he had made an unjust claim upon the fund. The complainant is therefore entitled to an injunction or order for a perpetual stay of proceedings on the part of Rogers against him, and to recover against the latter his costs in this suit to be taxed. Under the circumstances of this case, I do not think the complainant is entitled to claim his costs out of the fund in court. That belongs to Secord by the neglect of Rogers to appear and claim it in this suit; and I also think the complainant ought to pay Secord the costs in the suit brought to foreclose the mortgage which had been commenced previous to the time the bill in this cause was filed. On the receipt of those costs, Secord must cancel the mortgage on record. He will then be entitled to the fund in court; and Rogers must pay to him his costs in this suit to be taxed. On a bill of interpleader rightfully and necessarily filed, the complainant is entitled to his costs out of the fund which is the subject 'of the suit; and he is not obliged to take his chance of getting them from the defendant against whose claim the court eventually decides. But the circumstances of this case do not bring it within the reasons on which that rule is founded.


text:
    Leggett vs. Dubois.
    On the death of a party to a suit in chancery, if the cause of action survives to or against some other of the parties, so that a perfect decree as to every part of the subject of litigation can be made between the surviving parties, the suit does not abate as to the survivors ; and on motion of either party, the court will order the suit to proceed between such survivors.
    Where the cause of action against a deceased party does not survive, but some third person bceoms vested with his interest or subject to his liabilities, the complainant may elect to proceed without’ reviving the suit against the representatives of the deceased party, provided a perfect decree-can be made . between the survivors without bringing such representatives before the court.
    In such cases, the complainant must revive the suit against the representatives . of the deceased party, or elect to procéed against the surviving defendants within such time, as may be deemed reasonable by the court , or the defend, ants may revive the suit, ■
    To revive a suit under the provisions of the revived statutes, without á bill of revivor, the party must proceed upon petition, which is a substitute for the bill of revivor.
    But an order to proceed without reviving may be obtained on an affidavit - showipg the death of the patty, and that the cause of action has survived.
    Whether a suit can be revived against absentees or infants who succeed to the rights of a deceased party withouta formal bill of revivor ? Quaere.
    If a suit abates pending an injunction, the defendant or his representatives who are restrained by such injunction may have an order that the complainant ot Ms representatives revive within such reasonable time as may be fixed by the court for that purpose, or.that the injunction be dissolved.
    The bill in this cause was filed to compel the specific performance of an agreement made by the Rev. J. Sellon, now deceased, with the complainant, relative to the sale or exchange of a small piece of land between Beekman and Ann streets in the 'city of New-York; of which land it was alleged that Sellon was the real owner, or the' cestui que1 trust, and that H. Walton was his trustee. It was further alleged in the complainant’s bill that the land in question was conveyed to the other defendants, or some of them, after notice of the complainant’s rights, and while it was held adversely by him. An answer having-been put in by a part of the defendants, the cause was at issue as to them. The answer of Sellon was adjudged insfficient; and he. was in contempt for not answering at the time of his death in March last.
    J. Lynch, for the surviving defendants,
    upon an affidavit of the death of Sellon, and that an injunction had been issued in the cause restraining them from proceeding in their suit at law moved that this cause might proceed against the surviving defendants ; or for such other, order as the court might think proper to grant; under the circumstances of the case..
    T. Fessenden, on the part of the complainant,
    read affidavits showing that he considered it necessary to the attain-merit of the objects of the suit that the representatives of Sellon should be made parties thereto. He contended that this was not a case of survivorship, and that neither party had a right to proceed in the suit without reviving the same.
   The Chancellor.

The cases intended to be embraced by the 107th section of the title of the revised statutes which relates particularly to this court, (2 R. S. 184,) are those where the right of the deceased party vests in some or one of the survivors; so that a perfect decree may be made as to every part of the subject, of litigation, without any alteration of the proceedings, or bringing any new parties before the court. Such is the case of a suit brought by or against two or more executors, trustees or joint tenants ; where, on the death of one, the whole right of action or ground of relief survives in favor of or against the other. In such cases, there is in fact no abatement as to the survivors ; and upon a proper application by either party on affidavit, showing the fact of the death, and that the cause of action has survived, the court will order the suit to proceed. The 108th section provides for another class of cases, where some of the parties survive and the rights of the parties dying do not survive to them, but some other person becomes vested with the rights and interests, or is subject to the liabilities of those who are dead. In such cases, the complainants may proceed without making those persons parties, provided a decree can be made between the surviving parties without bringing such persons before the court. The decree, in that case, will not effect those in whom the rights of the deceased parties have become vested. Under a similar provision in the former statutes of this state, Chancellor Sanford decided that it was optional with the surviving complainant to revive the suit or to proceed without reviving; but that he was not bound to do either ; that he might elect to abandon the suit. (1 Hopk. R. 450.) The revised statutes have provided for such cases ; and the surviving defendants may now revive the suit if the complainants, or those who are entitled to revive in the first place, neglect to do so within such time as may be allowed by the court for that purpose. The proceedings to obtain a revival of the suit, under these provisions of the revised statutes, must be by petition ; and an order for that purpose cannot be granted on motion founded on affidavit only. The petition is the substitute for a bill of revivor. But a formal bill may perhaps be ■ necessary where ,the representatives of the deceased party cannot be found, or where they,are infants. (7 John. R., 613, per Van Ness, J.) It is undoubtedly the duty of the complainant to revive, if he wishes to proceed with the suit, and to have the benefit of the previous proceedings. And where a suit abates by the death of either of the parties pending an injunction, the defendant or his representatives may have an order that the com-r plainant' or Ms representatives revive - the suit, within a reasonable time, or that the injunction be dissolved. (1 Hen. & Munf. 203. I Cox’s Ca. 411. 2 id, 50.)

In this case, there has riot" as yet been any "unreasonable delay on the part of the complainant; but he must, within -sixty days, proceed-to revive the suit against the legal representatives of Sellon, or consent to proceed against the surviving defendants only, or the injunction must be dissolved. ■


text:
    In the matter of F. Atkinson’s will.
    In issuing a commission to take proof of a will in a foreign country for the purpose of establishing the same and having it recorded as a will "of real estate .within this state, the same notice of the application for a commission •. must be given to the heirs at law of tlie testator and the persons interest, ■ed in contesting the will, as is required upon proving a will before a surrogate.
    ■Persons authorized to contest the validity of the will may join in the commission, and may be permitted to name a commissioner oh their part; and they will also be entitled to reasonable notice of the time and place of executing the fcommission. , - '
    May 8th.
    ■ This was an application on the part of three of the devisees "of Francis Atkinson, late of Kirbym.oorside, in the coun-: ty of York, in England, deceased, for a commission tó take the proof of the execution óf his will; for the purpose .of having it established and recorded as a will of certain real property situated within this state. By their petition it ap> peared that the testator was a citizen of the United States, but resided in England and died there. That he made a will and two codicils, duly executed according to the laws of this state to pass real estate ; and that all the witnesses thereto resided in England. That all the heirs at law of the testator capable of inheriting lands within this state, except the petitioners, resided in the United States ; and that one of them resided at Rochester in this state. That the will and codicils had been duly proved as to the personal estate in the prerogative court of Canterbury, where, by the laws of England, the originals are filed and must remain of record.-

      J. Rhoades, for the petitioners,
    asked that a commission' might be issued to take proof of a duly authenticated copy of the will and codicils ; and as there was no dispute as to the validity thereof, that notice to the heirs at law might be' dispensed with in this case.
   The Chancellor.

The petitioners have complied with' all the requisites to entitle them to a commission. And if the facts are correctly stated in the petition, which there is no reason to doubt they are also etitled to have the authenticated copies of the will and codicils proved and recorded instead of the originals, which cannot he obtained' from the ecclesiastical court at Doctors Commons; The' only questions which arise are as to the propriety in any case1 of issuing such a commission wholly ex pai’te, and without giving those who may have an interest in contesting the validity of the will and opportunity to join in the commission-, or to object to the commissioners named by the petitioners ; and whether any, and what notice should be given to the’ heirs at law to appear and contest the validity of the will. The legislature have given to the chancellor an unlimited • discretion on this subject; and in this particular case, where the probate is perhaps mere form, it is probable no injury could arise from issuing an ex parte commission, or from permitting it to be executed without any notice to the heirs at law. But as this is the first application which has been made under the recent statute,. I am Utiwilling to establish a precedent that may lead to. abuse in cases which may hereafter occur. The record of'the proof of a will of real estate ia only presumptive evidence of the due execution thereof and of the capacity of the testator. Yet in relation to wills executed in a foreign country, this proof will in most cases.be in fact conclusive upon the rights of the heirs at ■ law ; in consequence of the difficulty and expense of repelling -such proqf in each particular suit- which may be brought here in relation to the estate. But ■ few causes therefore will arise .where the chancellor, in the exercise of a sound discretion, - could permit .a will to be proved and recorded without any notice to those who have an interest to.contest its validity. If it should appear from the petition that, there was no heir capable of taking the estate" by descent, it might be necessary to direct notice to be given to .the attorney general ; so that the rights of the people might be protected and preserved. Personal service of notice may not be necessary where the parties interested live out of the state. And probably the notice required by the statute on the proof of such wills before the surrogate would be the best mode of giving infori mation that a' commission is applied for. if the’ heirs at law-claim the estate," they probably will have", some' agent here to attend to their rights ; or they may employ a solicitor and file á caveat with the register to prevent a commission from being issued without giving them an opportunity to join therein. Where they" appear and signify, their wish to contest the will,- the court can then direct such notice of the time and place of the execution of the commission to be given as may be proper. - • ,

In "this case an.order must be entered directing the heirs ■ at law and all other persons interested in contesting the validity of the will or codicils, to show cause before the chancellor, on the first Tuesday of July next, why a commission should not issue to take proof of the authenticated cbpies of. the original will and codicils bh file in the prerogative court of Canterbury ; to- the end that the same may be recorded . as a Will of the real estate of the testator situated within this-state. A copy of the order must be published-in the state páper weekly for six week previous to that time, and a copy thereof must be served on the heir at law who resides at RoChester, either personally or, in case of his absence, by leaving the same at his residence, at least twenty days before the time appointed for showing cause. And in case any person authorized to contest the validity of the will or codicils appear and shows his right to contest the same, he will be permitted to join in the commission. He will also be allowed to name a commissioner on his part, and will be entitled, to such reasonable notice of the time and place of executing the commission, and to be given in such manner, as the court may then think proper to direct. The necessary directions will also be given at that time as to the manner of executing and returning the commission.