author: The Chancellor,

text:
    Johnson vs. Johnson.
    Where the master, upon a reference to take proof of the adultery charged in a bill for a divorce, received the testimony of a physician, disclosing information which he had acquired in attending upon the defendant in a professional character, and which information was necessary to enable tho witness to prescribe for his patient; It was held, that such testimony must be rejected by the court, in deciding whether the defendant! had been guilty of the adultery, as charged in the bill.
    A voluntary cohabitation of a wife with her husband, with full knowledge of an act of adultery committed by him, is legal evidence of a forgiveness of the offence, so as to bar a suit for a divorce.
    An act of cruelty alone, on the part of a husband, will not, in this state, revive a condoned adultery, so as to entitle the wife to a decree dissolving the marriage contract.
    To revive a condoned adultery so as to entitle the injured party to a divorce, the subsequent misconduct of the defendant must appear to have been of the same character. But the complainant, in a suit for a divorce on account of subsequent misconduct of the defendant, may give the condoned adultery in evidence, in support of the charge for the new offence.
    May 26.
    This was an appeal from a decree of the vice chancellor of the first circuit, granting a divorce. The parties were married at Manchester, in England, in 1825, and came immediately to the city of New-York to reside. The defendant had continued to reside in this state ever since, except about eight months, from August, 1831, to April, 1832, when the parties were in England. The adultery, charged in the bill, was stated to have been committed at New-York, in September, October, and November, 1830, .while the complainant was absent on a visit to her father’s, in England i and in June and July, 1831, and in May and June, 1832. The complainant alleged, in her bill, that upon her return from England, in November, 1830, she discovered that from the continued adultery of her husband, he had become diseased. But that she, being a total stranger in this country, and absent from her friends, was compelled to reside with her husband; which residence was not voluntary, and would not have been continued if she could have had access to her relatives and friends, all of whom resided in England. The defendant suffered the bill to be taken as confessed; and the usual reference was made to a master to take proofs of the facts charged in the complainant’s bill, and to report the same to the court, with his opinion thereon. The defendant appeared before the master, on the reference, and cross examined the complainant’s witnesses as to the alleged charges of adultery, and also for the purpose of showing a condonation, by a voluntary cohabitation with knowledge of the alleged adultery. The master reported the testimony, and also reported that in his opinion the adultery first charged in the bill was proved. But he also reported that he was of opinion, from the evidence, that there was a continued marital cohabitation of the parties after the fact of adultery was known to the complainant, which amounted to a condonation of the offence. The vice chancellor made a decree dissolving the marriage contract, on the ground that the condoned adultery was revived by the subsequent unkindness of the defendant towards his wife. (See 1 Edwards' Ch. Rep. 439, S. C.)

      W. Muloch, for the complainant.
    The residence of the husband is admitted, and the residence of the wife, for all legal purposes, follows that of her husband. The facts in this case come within the first and third rules of section 38 of the revised statutes. (2 R. S. 144.) Both husband and wife were, in law, inhabitants of the state at the time of the commission of the offence. The offence was also committed within the state ; and at the time of exhibiting the bill, the complainant was an actual inhabitant of this state. The adulter ry is established. The time, place and circumstances are only material for the purpose of enabling a party to defend, who geeks to form an issue for that purpose; and then they are only required so far forth as the complainant can give them. Adultery can be proved from circumstances, without any direct proof of the fact itself. If this was not so, in many meritorious cases the complainant would fail. It is true that admissions are not alone sufficient, because this would admit of the evil of collusion, which the whole aim of this court is tti prevent. But the admission of the defendant to Boot. Smith, that he had the venereal disease, arising from intercourse with women, is not of that character. It comes within another rule of evidence, as being part of the res gestas, explanatory of the fact and nature of the application to a medical man; as in the case in Aveson v. Lord Kinnaird, (6 East's R. 188,) where the plaintiff’s wife was proved to be sick in bed at an unusual tour, just after an insurance was effected on her life ; and all the judges held that what she said while in bed, as explaining her situation, was evidence against her husband. The testimony of Captain Allen is only relied on as corroborative of the fact proved by Boct, Smith ; and as such it may be received, by the uniform practice of this court. There was no con-donation. When a husband commits adultery, and after compelling his wife to live with him, decoys her into"the doubtful condonation of apparent good terms, and then treats her with personal violence and abuse, he cannot claim the benefit of such condonation,, as no man can claim a benefit from his own fraud.

      John A. Lott, for the -defendant.
    The jurisdiction of the court of chancery to grant divorces a vinculo matrimonii is derived from the provisions of the statute; (2 R. S. 144;) by which it is declared that divorces may be decreed:
    1. Where both husband and wife were inhabitants of this state at the time of the commission of the offence.
    2. Where the marriage has been solemnized, or has taken place within this state, and the injured party at the time of the commission of the offence, and at the time of the exhibiting of the bill of complaint shall be an actual inhabitant of this state; and
    3. Where the offence has been committed in this state, and the injured party, at the time of the exhibiting the bill of complaint, is an actual inhabitant of this state.
    The bill in this case does not allege that the parties were inhabitants of this state at the time of the supposed commission of the offence. And it expressly charges the marriage to have been solemnized, and to have taken place at Manchester, in England. It however does allege the offence to have been committed in this state; and that the complainant, at the time of exhibiting her bill, was an inhabitant of the state. The residence of the husband is not presumed to be the residence of the wife, when she lives separate from him. The residence of the wife must be fixed and certain, to constitute her an actual inhabitant of the state. A temporary residence is not sufficient; and the court will require satisfactoiy proof of the allegation, before it will interfere and exercise its jurisdiction. (Mix v. Mix, 1 John. Ch. Rep. 204. Williamson v. Parisien, 1 Id. 389, 391.)
    The adultery charged in the bill is not established. The time, place and circumstances charged in the bill are material. (Codd v. Codd, 2 John. Ch. Rep. 224. Wood v. Wood, 2 Paige's Rep. 113. Germond v. Germond, 6 John. Ch. R. 349.) And if material, they must be proved. The statute and rules of court direct a reference to a master to take proof of the facts charged, before the final decree is pronounced. The admission of the party, whether by answer or by suffering the bill to be taken as confessed, is not sufficient.
    The object of the statute, in referring the matter to a master, was to prevent collusion ; and all admissions and confessions of the parties are discountenanced, and strong corroborative proof is required to satisfy the court. (Betts v. Betts, 1 John. Ch. Rep. 197. Palmer v. Palmer, 1 Paige's Rep. 276.) But if the adultery, and the time of its commission, are satisfactorily established, yet there is not a particle of proof adduced to show that the offence was committed within this state. This is a material allegation, and necessary to give jurisdiction to the court. (2 R. S. 144.) As the jurisdiction of the court in this case is founded on the allegation that the offence was committed in this state, it is absolutely necessary that the proof should sustain that allegation. (Mix v. Mix, 1 John, Ch. Rep. 204, Williamson v. Parisein, Id. 389, 391.) Again; there has been a condonation of the adultery, if committed. Subsequent unkindness on the part of the defendant could not revive the right to prosecute for the former adultery. The rule may be otherwise in the ecclesiastical courts in England. But in England, since the time of Elizabeth, divorces a vinculo matrimonii cannot be obtained, even for adultery, except by an act of parliament. (See Rye v. Fuliambe, Moore, 683.) And is there the same reason for such a rule here, as to. the effect of condonation, as in England 1 Is it politic, or is it consistent with good morals, to allow of a conditional forgiveness of adultery to be revived by acts of cruelty, the effect of which is to dissolve the marriage tie 1 But admitting that forgiveness is accompanied with an implied condition, can that condition be any other than that the party shall not be again guilty of the same, or a similar offence Í Such is laid down as the rule, in Ferrers v. Ferrers, (1 Haggard's Cons. Rep. 130,) where condonation is said to be a conditional forgiveness, which does not take away the right of complaint, in case of a continuation of the adultery. The true rule is laid down, in a note to that case. It is thus : that although con-donation may be taken away by subsequent facts, they must not be slender facts, but such as would be sufficient to found a sentence. And here it will be proper to bear in mind that our law affords one kind of relief for adultery, and another for ill usage ; whereas, in England, the relief in both cases is the same. Now it is well settled that a party cannot charge adultery and cruelty in one bill. The mode and course of proceeding, as well as the nature of the relief, are entirely different. (Pomeroy v. Pomeroy, 1 John. Ch. Rep. 606.) And can it be said that a course of conduct which would only entitle a party to a divorce, a mensa et thoro, in one case, can, under other circumstances, entitle such party to another and higher relief, of an entirely different character 1 All our courts lay down the rule, that subsequent cohabitation, with knowledge of the guilt, is a remission of the offence, and a bar to a divorce.
      (Williamson v. Williamson, 1 John. Ch. Rep. 492.) And can a right of action that has been legally relinquished be revived by subsequent events, of a different nature 1 What would be the effect of such a doctrine on the practice of our courts 1 If cruelty can revive adultery, the acts of cruelty charged become a material part of the complainant’s case to entitle her to a divorce. Suppose the defendant wishes to deny both the adultery and the acts of cruelty, how is he to put in his answer 1 The charges of cruelty he must answer under oath, but the adultery he may deny without oath. And if material to the complainant’s right to the interference of the court, it appears to me that the bill should specify the nature and circumstances of the complaint on which she relies, and should set forth times and places with reasonable certainty, so that the defendant could have met them by proofs. In this bill, however, there are only general allegations of cruelty, without stating any particular acts. But the conduct of the defendant towards the complainant was not such as to revive her former rights and remedy, even if it be true that subsequent acts of cruelty will revive a condoned adultery.
    In Oliver v. Oliver, (1 Hag. Cons. Rep. 364,) Sir Wm. Scott says, that “ the most innocent and deserving woman will sue in vain for the interference of the court, for words of mere insult, however galling, and still less will that interference be given, if the wife takes upon herself to avenge her own wrongs of that kind, and to maintain a contest of retaliation.” Again; in Evans v. Evans, (1 Hag. Con. Rep. 37 and 38,) he says, that mere austerity of temper, petulance of manner, rudeness of language, a want of civil attention, and occasional sallies of passion, if they do not threaten bodily harm, cannot amount to legal cruelty; and that which merely wounds the mental feelings is in few cases to be admitted, where they are not ac- . companied with bodily injury, either actual or menaced. Sir John Nichol, however, in Durant v. Durant, says that circumstances would take off the effect of condonation which would not support an original cause ; that though words of heat and passion, of incivility and reproach, are not alone sufficient for an original cause, yet that he could not but think that their effect would be stronger in condonation ; for that words, otherwise of heat, receive a different interpretation, if, upon former occasions, they have been accompanied with acts: as where it appeared that the party was in the habit of following up words with blows. But in Westmeath v. Westmeath, (2 Hag. Eccl. Rep. Sup. 52,) Sir Christopher Robinson says that Sir John Nichol, in Durant v. Durant, must have meant that the facts, though slighter than might be required to found or support a sentence of divorce alone, must be such as partake of the nature of legal cruelty, being such in character and effect as might justly revive the fear of an injury attributed to the original act. And Sir John Nichol, in the same case, after reciting the facts of the case, says: The question recurs, whether any subsequent acts took place, forming fresh grounds bf legal complaint, or at least reviving former wrongs, and in connection with these former wrongs, containing reasonable and just apprehension of a renewal of ill treatment. The rule as thus explained appears to be, that if the acts of cruelty or misconduct of the party, taken in connection with the former acts of such party, afford a reasonable ground of alarm, then the court will interfere.
    Now what is the proof here 1 There can be no pretence that the conduct of the defendant was at any time such as to authorize the court to interfere and grant the complainant a-divorce, a mensa et thoro, prior to, or after the condonation ; and certainly it ought not to be held sufficient to revive a former adultery, which had been once forgiven. But if the conduct of the defendant was reprehensible, and such as to revive the condoned adultery, provided the complainant had not been guilty of improper conduct herself, yet her conduct in this case was such as to give her husband just ground of complaint. It was, at all events, a palliation of his conduct. Such a defence is allowable^ upon a bill filed for a limited divorce; (2 R. S. 147, § 53;) and certainly it must be held sufficient in the case now before the court. If it was an implied condition of the forgiveness on her part, that her husband should treat her with conjugal kindness, so, on the other hand, it was her duty to treat her husband with kindness and affection, and to-endeavor to remove all apparent cause of difficulty between them.
    It will probably be contended that the master had no right to enquire into the question of condonation. But is that so 1 Has not the complainant, by alleging, in the bill, that her cohabitation with her husband after the discovery of the adultery was involuntary, made that a part of her case I And is it not necessary for her to do away the effect of such cohabitation, by showing that it was involuntary 1 Without such proof, the complainant, upon the bill itself, would not be entitled to a divorce. The statute, (2 R. S. 145, § 42,) and the 164th rule of this court, contemplate such an enquiry. The order of reference requires the master to take proof of the facts charged in the bill; and every thing that forms a part of the complainant’s case is material, and must be proved. The court will notice condonation, though not pleaded nor forming a part of the case made by the bill, if it appears by the evidence in the cause. (Elwes v. Elwes, 1 Hag. Con. Rep. 292. Durant v. Durant, 1 Hag. Eccl. Rep. 747, 751.) Where a man and wife live together in the same house, the presumption is that they were on terms of matrimonial cohabitation. (Beebe v. Beebe, 1 Hag. Eccl. Rep. 796.)
   The Chancellor,

If the testimony produced before the master was legal evidence to prove the fact of adultery, the complainant undoubtedly succeeded in showing that the defendant was guilty of the adultery charged as having occurred previous to her return from England, in November, 1830. The parties came to reside in this state in 1825; and they were both inhabitants of the state from that time till August, 1831, notwithstanding the temporary absence of the wife, on a visit to her father, in the summer and fall of 1830. This would have been sufficient to give the court jurisdiction of the case, if a proper averment to that effect had been contained in the bill, whether the adultery was committed here or elsewhere. The residence of the husband is presumed to be the legal residence of the wife until the contrary is shown. And as the complainant returned to this state with her husband in the spring of 1832, where he has continued to reside from that time, the legal presumption is, that she was an inhabitant of this state at the time of filing her bill, a few months after such return. I am also satisfied, from the fact of the husband’s residence here, that the adultery, if any, must have been committed within this state. I am inclined to think, however, that the master was wrong in supposing that there was any legal evidence before him, independent of the mere confessions of the defendant, to show that any adultery had been committed. Although Captain Allen swears he has himself had some personal experience on the subject of a particular disease and as to the appropriate remedies therefor, I do not think his testimony was sufficient to establish the fact that the defendant was laboring under the effects of that disease, on the outward voyage, in the summer of 1831. And the confessions of the defendant, as to his guilt, appear to have been made in a fit of jealousy, and probably with a view to induce his wife to seek a separation. . The testimony of Smith, the physician, as to what he discovered and was informed of when he was consulted by the defendant, professionally, in 1830, was illegal and improper, and ought not to have been received. By the revised statutes, a physician is not only excused, but prohibited, as a witness, from disclosing information which he has acquired in attending a patient in a professional character, and which information was necessary to enable him to prescribe for such patient. (2 R. S. 406.) From the testimony, as reported by the master, I infer that Dr.- Smith at first declined answering as to what he had thus discovered when consulted in his capacity of physician. But on being told by the master that he was obliged to make the disclosure, he submitted to what he supposed to be a legal duty. Indeed, it is expressly stated in the brief of the complainant’s counsel, which was handed up to the court in this case, that the physician declined making any disclosure as to the disease under which the defendant was laboring, until he was compelled by the master to answer. The master mistook the law on this subject. And the testimony being thus obtained in direct violation of this statutory provision, it should be rejected, or laid entirely out of consideration, in deelding whether the adultery charged in the complainant’s bill is established by the proofs.

I have recently had occasion to say that this court will in no case dissolve a marriage, if it appears upon the pleadings, or proofs, properly taken, that the injured party, with a full knowledge of the facts, has forgiven the injury. And a voluntary cohabitation is legal evidence of such condonation or forgiveness. In this case there was no proof whatever to establish any act of adultery after the returnof the complainant from England, in 1830. And she having stated in the bill, and sworn to the same, that she ascertained the fact of his guilt on her return at that time, and that she had not voluntarily cohabited with him afterwards, it became the duty of the master, under the order of reference, to inquire into those facts, as well as all other matters stated in the bill. The eviidence of condonation was, therefore, properly before the court upon the report of the master. That evidence falsified the allegation in the bill that the complainant had not voluntarily cohabited with the defendant subsequent to 1830. It also contradicted the affidavit which must have been made, in conformity with the provisions of the 165th rule, to obtain the usual order of reference. The testimony of the master of the packet shows that there was a continued marital cohabitation between the complainant and her husband while they resided in England, in the latter part of 1831 and the beginning of 1832; and even after they started on their return to this country. It may also be remarked, that during the residence of the parties in England, the excuse of the complainant, that sha was compelled to reside and cohabit with her husband, from necessity, because she was among strangers and at a great distance from her relatives and friends, no longer existed. That a condonation of the offence by the reconciliation of the parties, or a subsequent cohabitation with a full knowledge of the facts by the injured party, is a bar to a divorce for adultery, is not only recognized by our statute, but by the laws of most- civilized countries. (Poynter’s Mar. & Div. 231. Code Nap. Art. 272. Van Leeuw. Rom. Dutch Law, 84. Oughton, tit. 214. Civil Code of Louis. Art. 149.) It is evident, therefore, that when these parties started from Liverpool on their return to the United States, in the spring of 1832, the complainant could not have sustained a bill for a divorce on account of any adultery committed by her- husband before that time, and of which she had full knowledge previous to such voluntary cohabitation. The vice chancellor arrived at a correct conclusion on this point; but he granted a divorce on the ground of a revival of the supposed adultery, by the subsequent acts of unkindness of the defendant, towards his wife, during the voyage from England to this . country. It remains, .therefore, to be considered whether the defendant was guilty of any misconduct during that time, which could have the legal effect to revive a condoned adultery, so as to entitle the complainant to a divorce.

It is settled in the ecclesiastial courts of England that con-donation is but a conditional forgiveness, and that a repetition of the offence revives the condoned adultery. The same principle was recently recognized in this court in the case of Smith v. Smith, (Ante, 434.) The English couris, however, have gone still further, and have held that to revive condoned adultery, it was not necessary that the new injury should be of the same nature ; but that cruelty, desertion, or other improper conduct of the husband towards-his wife, was sufficient for that purpose. In following this principle of the ecclesiastical courts in England, I apprehend the vice chancellor has not sufficiently1 considered the distinction which exists between the laws of this country and of that as to the legal consequences of a conviction for adultery. The ecclesiastical courts in England-have followed the canons of the Romish Church, in holding that the bonds of matrimony upon a legal marriage are indissoluble; and that no absolute divorce can be granted, even for adultery. As the consequences of a conviction for cruel .treatment or for adultery are the same by,the laws of that country, it is not surprising that their courts should consider the forgiveness of the injured party as subject to the implied condition that the other party should not again be guilty of the same offence, or of an of-fence involving similar consequences. In this state, however, we have followed the ancient law of Holland, in permitting an absolute divorce, in favor of the injured party, in cases of adultery; and granting a qualified divorce, or separation from bed and board, merely, for cruelty or other misconduct. (Van Leeuwen's Com. 85, § 3.) The Napoleon Code declares the injured party incapable of pursuing an action for a divorce, after a condonation of the offence; but it permits a suit to be instituted for cause accruing subsequent to the reconciliation, and then allows the former causes of divorce to be employed in support of such new action. (Code Nap. Art. 273.) The same law, substantially, exists in our sister state of Louisiana. (Civil Code of Louis. Art. 150.) And by the law of Scotland, if the injured party continues the matrimonial connexion after knowledge of the adultery, that is held to be an irrevocable forgiveness of the offence; and an act of adultery so overlooked, cannot afterwards be the foundation of a process for a divorce. (1 Bell's Dict. of the Law of Scot. Art. Divorce.) Upon principle, I am satisfied it would be carrying the doctrine of revival, by subsequent misconduct of the offending party, too .far, to permit a suit to be instituted for a condoned adultery, unless it was founded upon a subsequent offence of the like character. It may be said that the principle of revival is useless, if it can only be applied upon the commission of a new of-fence of the like nature, which would of itself entitle the injured party to a divorce. There may be cases, however, in which this court would only have jurisdiction to decree a divorce for the original offence, which had once been forgiven on the implied condition that it should not again be repeated. In such cases a subsequent offence of the same nature, although committed out of the jurisdiction of the court, and while the parties were not residents of this state, might be sufficient to revive the condoned adultery so as to entitle the injured party to a divorce for such original offence. And where the new offence is of itself sufficient, if duly established, to sustain the suit, the complainant might also, as in France and Louisiana, make use of the fact of the former misconduct of the defendant in support or corroboration of the suit for the new offence.

Even if the vice chancellor was right in supposing that the doctrine of the ecclesiastical courts in England was to be recognized here, in its fullest extent, I am inclined to think there were not sufficient grounds in this case for considering the supposed adultery as revived. And from the testimony of her own Witness, I cannot say that the complainant’s conduct, on the return voyage from England, was wholly free from censure. After the positive declaration of Captain Allen, on oath, that the defendant’s charge against him, of an illicit intercourse with the complainant, was unfounded, it would probably be too much to say that the defendant had any just grounds for charging his wife with such illicit intercourse. Yet from the .testimony of Allen, it is very evident that the defendant was actually jealous of the witness’ attention to his wife, both before and after they sailed from Liverpool; and that some of the other passengers also thought such attentions to a married woman were improper. The conduct of the husband, during the voyage, may therefore fairly be considered as the natural result of the suspicions he entertained, occasioned by the indiscretion of the complainant in permitting herself to receive such attentions from Captain Allen, when she must have seen the effects they were producing upon the mind of her husband, and the suspicions which were created even among her fellow passengers. The nature of those attentions may be inferred from the fact sworn to by Allen, that one of his passengers told him that if any man was as attentive to his wife he would blow his brains out.

Upon the whole, I am satisfied that this was not a proper •case for a divorce, under the statute of this state. That, in the first place, there was no legal evidence to establish the fact that an adultery had been committed. And, if it had been committed, that the suit for a divorce was barred by the subsequent condonation of the offence. The decree of the vice chancellor must therefore be reversed j and the complainant’s bill is dismissed,


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Buloid and wife vs. Miller and others.
    To entitle the exceptant to the costs of the reference on exceptions, he must succeed finally in obtaining the allowance of a major part, in number, of the exceptions referred; and each exception constituting a part of such majority must be wholly sustained.
    An appeal lies from an interlocutory order charging the appellant with costs, if such costs are given contrary to statute, or to a standing rule of the court, and do not rest in discretion merely.
    So where a party is entitled to costs as a matter of strict right, if the court below refuses to give costs, the erroneous decision as to such costs may be corrected on an appeal.
    This was an appeal from an order of a vice chancellor, overruling an exception to a master’s report, on exceptions to the answer of Charles Lydia White, one of the defendants. The complainant took nineteen exceptions to the answer; a part of which were for insufficiency, and the residue for impertinence. The master allowed eight of the exceptions entirely, and disallowed nine. Of the remaining two exceptions, he allowed a part of each, and disallowed the residue. The vice chancellor overruled the exception to the master’s report; and considering the major part of the exceptions to the answer as finally allowed, he charged the defendant with the costs of the reference. '
    July 15.

      T. Fessenden, for the complainants.

      W. Silliman, for the defendant, C. L. White.
   The Chancellor.

I see no substantial objection to the form of the exceptions for insufficiency which have been allowed by the master. The principles upon which exceptions for insufficiency should be framed, have been so fully discussed in the recent case of Stafford v. Brown, (4 Paige's Rep. 88,) that it would be a useless waste of time for me again to examine that subject particularly. It is only necessary, therefore, for me to say that the complainant, in his exceptions, must state what parts of the bill he conceives not fully answered; setting forth the particular points wherein the answer is defective, and praying that the defendant may in those respects put in a full and perfect answer. Which exceptions must be founded upon some allegation, charge, or interrogatory, in the bill, which is not fully answered. (1 Bro. Ch. Pr. 11.) And if the exceptions are informal or defective, in these respects, they should be disallowed by the master on the reference. It is doubtful whether the 18th and 19th exceptions are not defective in substance, as not being founded upon any allegation, charge, or interrogatory in the bill. The first and sixth exceptions, however, refer with sufficient certainty to parts of the bill to which the complainants were entitled to an answer, and which are not fully answered. Some of the exceptions for impertinence are informal, and should have been disallowed by the master, on the ground that they do not describe the impertinent matter with sufficient certainty to enable the regis:er, or clerk, to see at once what is to be expunged from the answer, if the exceptions are allowed. And the master should have disallowed those exceptions wholly, in which any pertinent matter was included, and should not have allowed them in part. (Atkinson’s Ch. Prac. 65.) But as one exception only was taken to the master’s report, the vice chancellor was right in overruling that exception ; the decision of the master being unquestionably right as to some of the exceptions to the answer. And the question as to the costs of the reference must be disposed of in the same manner as if the decision of the master had been found correct as to all the exceptions referred to him. The question as to the regularity of the order referring the exceptions to the master, could not properly arise upon an exception to the report. If the order was improperly entered, the remedy of the defendant was by an application to the court to set aside the order for irregularity.

I am satisfied the vice chancellor erred in allowing the complainants the costs of the reference. The 63d rule provides that no part of the costs of the reference, upon exceptions, shall be allowed to the party obtaining such reference. Unless the major part of the exceptions referred are finally allowed. In this case nineteen exceptions to the answer Were taken; only eight of which were finally allowed, and nine were disallowed. The two others were allowed in part and in part disallowed. The most favorable construction which could be given to this rule, in support of the complainant’s claim for costs, would be to lay out of the question the two exceptions which have been allowed in part only. But upon that construction of the rule, the major part of the exceptions were not allowed, nor even a moiety of them. It would be necessary to consider the 5th and 15th exceptions, which are allowed only in part," as wholly allowed, to constitute the major part of the exceptions referred. I apprehend, however, that the true construction of this clause of the 63d rule is, that the exceptant must succeed wholly as to a majority of the exceptions referred, to entitle him to the costs of the reference. Although the practice has obtained of allowing a part of an exception for insufficiency, when the whole exception was not well taken, the practice of blending different and distinct questions in the same exception is not to be encouraged. To entitle the exceptant, therefore, to the costs of the reference, he must succeed in obtaining the allowance of a major part, in number, of the exceptions referred; and each exception constituting a part of such majority must be wholly allowed.

The only remaining question to be considered is whether an appeal from an order granting or refusing costs, upon an interlocutory proceeding, can be sustained in any case. It is settled that an appeal from such an order will not lie, where the granting or refusing of costs in the particular case, rests merely in the discretion of the court. (Winslow v. Collins, 3 Paige's Rep. 88.) And, as a general rule, the giving or refusing of costs, upon an interlocutory proceeding in chancery, is discretionary merely. But in certain cases, the one party or the other is entitled to costs, under an express statutory enactment, or by a standing rule of the court. Where a party is entitled to costs as a matter of strict right, if the court below refuses to give costs, the erroneous decision of the court may be corrected on appeal. And an appeal also lies where the costs of an interlocutory proceeding have been erroneously charged upon a party, contrary to law, or to a standing rule of the court. In the present case the rule is imperative, that no part of the costs of the reference shall be allowed to the ex-ceptant, unless he succeeds in obtaining an allowance of the major part of the exceptions referred. There was no ground, therefore, for the exercise of discretion on the subject of such costs. And the defendant being charged with costs, upon an erroneous construction of the rule, that part of the vice chancellor’s older must be reversed. The appellant having appealed from the whole order, and succeeded only as to a part thereof, neither party is to recover costs, as against the other, on this appeal.


text:
    Leitch vs. Cumpston.
    An order or decree by consent cannot be modified or varied in an essential part, without the assent of both parties to the same."
    Although an order or decree has been entered by consent, the court, upon the application of either party, may give such further directions as shall become necessary for the purpose of carrying such order or decree into effect, according to its spirit and intent.
    July 15.
    The bill in this case was filed by G. F. Leitch, the sole next of kin of G. Leitch, deceased, for an account of the administration of the estate of the decedent. After a replication had been filed to the answer of the defendant, stipulations were entered into by the parties, as to the admission of certain facts upon the hearing, and on the reference. An order by consent was then entered, referring it to a master to take and state an account of the estate of the decedent which had come to the hands of the defendant as administrator, and of the administration thereof; and that in taking the account, the master should consider the answer of the defendant, and the schedules or accounts annexed thereto, as correct, except so far as the answer, and the accounts annexed, might be affected by any proofs which had been taken in the cause, or by any stipulation of the parties, their solicitors or agents. The master was also directed to allow the defendant for all monies paid to the complainant, or to his guardian, since the commencement of this suit; and to allow interest on the several items of the account, according to the principles and practice of the court of chancery. Upon the schedules or accounts which were annexed to the answer, the defendant had credited himself with certain amounts, as of a particular date, for bonds and mortgages, judgments, and other securities transferred to the complainant’s guardian. And upon the taking of the account before the master, the defendant offered evidence to prove that there was due upon the securities thus transferred, for the interest which had accrued at the date of the transfer, a large amount which was not specified in the account or schedule annexed to the answer. The master rejected the evidence thus offered, considering’himself precluded by the decretal order, from looking beyond the answer itself. The defendant thereupon applied to the complainant to consent to correct the alleged error in the schedule, or to permit the master to take evidence respecting the same. The complainant, however, refused to give such consent, except upon terms which were not acceded to by the defendant. The latter thereupon gave notice of an application to the court for an order directing the master to receive such testimony. The counsel for the complainant, in opposition to the motion, read an affidavit of the complainant, showing that since the entry of the order by consent, he had discovered several mistakes in favor of the defendant, in the accounts or schedules annexed to the answer; and that he had offered the adverse party to consent to the introduction of testimony as to any mistake in relation to the amount due on the securities transferred to his guardian ; provided the defendant would also consent to the introduction of testimony as to the alleged mistakes against the complainant, contained in the same accounts, or schedules, and which were specified in the complainant’s affidavits.
    P. jBronson, for the complainant.
    J. C. Spencer for the defendant.
   The Chancellor.

If the true construction Of the schedules, when taken in connection with the answer itself, is as contended for by the defendant’s counsel, it is not necessary to introduce any evidence before the master, as the defendant has a perfect remedy by excepting to the master’s report. Or the defendant may have the interest computed upon the several securities, from their dates under the special provision contained in the order of reférence, that the master shall calculate the interest and state the accounts in any form and upon any principles that either party shall request. I apprehend, however, that thhe only fair construction which can be given to the schedules, when taken in connection with the body of the answer, is that which has been given to them by the master. Even if it could be fairly inferred that the securities received were on interest from their several dates, and that such interest was not included in the amount stated in the schedule, there is nothing in the answer to show that the guardian agreed to receive those securities, for the full amount due thereon, without any deductions for the risk and expense of collection. And if the receipts of the guardian were referred to, they would throw no further light on that question ; except that it would appear from such receipts that, as to those securities, turned out by the defendant, which did not belong to the estate of the decedent at the time of bis death, the defendant was only entitled to the net proceeds thereof, after deducting the necessary expenses of collection.

In the case of The Washington Insurance Company v. Slee and others, which was before this court in March, 1832, and again in January last, it was decided that an answer by consent could not be modified or varied, in an essential part, without the assent of both parties to such order; although the court might give such further directions as were necessary to carry such order into effect, according to its spirit and intent. From the affidavits on the part of the defendant, it is higly probable that he is entitled to interest on some of the securities turned out to the guardian, to be computed from the dates of such securities respectively. But it also appears, by the affidavits in opposition to this application, that the defendant has made other mistakes in his answer, which mistakes are to the prejudice of the adverse party. And the complainant’s counsel now consents that the order of reference may be varied, so as to permit the defendant to introduce evidence as to the actual amount due upon the securities turned out to the guardian, provided the defendant '‘will consent that it be still further modified so as to permit the complainant also to introduce evidence, to show the other mistakes which have occurred in the answer. This is perfectly equitable and just; and the complainant’s counsel could not, consistently with his duty to his client, consent to the modification of the original order of reference on any other terms.

The application on the part of the defendant must therefore be denied, with costs ; unless his solicitor, within ten days after notice of this decision, delivers to the complainant a written consent, that the master may take testimony, and correct his report if necessary, as to the items of account specified in the affidavits which have been read in opposition to this motion. If such consent is given, the order of reference is to be varied accordingly; so as to authorize the taking of testimony as to the alleged mistakes on both sides. And in that event neither party is to have costs, as against the other, on this application.


text:
    Marten vs. Van Schaick & Bloodgood.
    Upon a bill filed by one of the partners to close up a partnership concern, it is a matter of course to appoint a receiver if the parties cannot agree among themselves as to the disposition and control of the property. And where it is necessary to preserve the good will of the business, the receiver may be directed to carry it on, under the direction of the court, until a sale can be effected.
    The bill in this cause was filed for the purpose of dissolving a partnership which had existed between the parties, and to settle the partnership accounts and distribute the property and effects of the firm.
    July 15.

      J. Rhoades, for the complainant,
    moved for the appointment of a receiver to take charge of the partnership effects, consisting of a printing establishment, and the subscription list and advertising custom of a public newspaper.
    S. Stevens, for the defendants,
    opposed the application, on the ground that the principal value of the property consisted in the good will of their business, which would be lost by the appointment of a receiver.
   The Chancellor.

Each partner has an equal right in this case to the possession and control of the partnership effects and business, and if they cannot agree among themselves, it is a matter of course to appoint a receiver, upon a bill filed to close the partnership concerns, on the application of either party. If a receiver is appointed, he must proceed and sell the establishment without delay; and in the mean time the business must be carried on by him, as usual, so that the good will thereof may be secured to the purchaser, and the full value of the establishment realized by the partners, on such sale. But the court will not take upon itself the responsibility of continuing the publication of a political paper, by a .receiver, any longer than is absolutely necessary to prevent a sacrifice of the property. Until a sale can be effected, the defendants may continue to superintend the editorial department of the paper, as they have heretofore done; but the paper must be published under the direction of the receiver, who will be personally responsible for any publication therein which is improper.

There must be a reference to a master to appoint a receiver, without delay.


text:
    Wilde vs. Jenkins and others.
    Where all the property and effects of an incorporated manufacturing society, together with ils charter, were sold by the trustees and stockholders of the company, and purchased by three copartners with their copartnership funds, who elected themselves trustees of the corporation; Held, that the corporation was not dissolved, and that the legal title to the real and personal property was still in the corporation for the benefit of the copartners, and that the stock of the corporation was copartnership property and distributable as such.
    in a partition cause, where the original parties to the suit admit their several titles to the property by their pleadings, if one of them dies and the suit is revived against his heirs at law by default, the court may declare the rights, titles and interests of the several parties, without a reference as to the title, and without requiring the complainant to exhibit proof of the same or an abstract of the conveyances by which the title is held.
    A reference to a master to examine and report as to general liens or encum- - brances on the undivided interests or shares of the several parties, in a partition suit, is necessary before a decree for a sale of the premises can be made, and can in no case be dispensed with.
    YVTiere a retiring partner, upon a distribution of the partnership effects, agrees to bear a portion of the loss upon a note, taken by the other partners towards their distributive share of the effects, if it cannot be collected of the drawer, he stands in the situation of a surety for the drawer, pro tan-to, and will be discharged from his liability if the holders of the note take a new security from the principal debtor and extend the time of payment, without the assent of such retiring partner.
    Where copartnership accounts have been stated and settled between the parties up to a particular period, and such settlement has been acquiesced in for several years without objection, the evidence of error or mistake must be strong and conclusive to authorize the opening of the account.
    The practice of opening accounts which have been adjusted by the parties themselves, who could best understand them, is not to be encouraged; and it should never be done upon an allegation of error, supported by doubtful or even probable testimony only, where no fraud had been practiced by one party upon the other.
    Where a bill, cross bill, and supplemental bill in the nature of a bill of review, between the same parties and relating to the same subject, are all abated by the death of one of the parties, the whole proceedings may be revived by one bill of revivor. The party reviving will not therefore be allowed the costs of two or more separate bills for that purpose.
    In May, 1829, Seth Jenkins filed a bill, in this court, for the partition of a certain manufacturing establishment in the county of Columbia, on the south side of Major AbrahanVs creek, and a lot on the north side called the Van Rensselaer lot; to -which bill James Wilde and John F. Jenkins were made defendants. In July thereafter, J. Wilde filed a cross bill against S. & J. F. Jenkins, alleging, among other things, that another manufacturing establishment, situated on the north side of the creek, also belonged to the same parties, although claimed to be held as corporate property belonging to the Columbia Manufacturing Society; and praying that the corporation might be decreed to be dissolved, and that the whole property on both sides of the creek might be partitioned between the parties; subject to the liens thereon of the parties respectively as to their several accounts with each other as partners and joint owners, and subject to the payment of two mortgages given to the complainant, by S. & J. F. Jenkins respectively, upon their several shares of the property on the south side of the creek. The defendants in those suits, respectively, put in their answers, replications were filed, testimony was taken therein, and the proofs were regularly closed. An order by consent was then entered, referring it to a master to take and state all proper accounts between the parties relative to the matters involved in those causes, but without prejudice to the rights of either party, as they would stand upon the pleadings and proofs, independent of such decree, by consent—all of which matters were reserved. That the master also take and report all or any proofs of the claims or defences of either party, with his allowance or disallowance of any item, matter or thing in relation thereto ; with liberty to either party to except to his report. That upon the coming in of the report, the causes might be brought to hearing upon the pleadings, proofs and master’s report thereon, and upon such exceptions to the report as might be taken by either party. And that upon such hearing, the several questions arising upon the pleadings and proofs should be open for discussion and decision, in the same manner and with the like effect as if presented upon pleadings and proofs, without such decree by consent having been entered. Subsequent to the commencement of the suit, by Seth Jenkins, for partition of the property on the south side of the creek, and the Van Rensselaer lot, J. Wilde filed two several bills against S. & J. F. Jenkins and their wives, respectively, to foreclose the mortgages given to him upon their shares of the property on the south side of the creek; which bills were taken as confessed, and decrees for foreclosure and sale were entered in those suits, in August, 1829. After the master had proceeded for sometime in taking the accounts, under the order by consent, Seth and John F. Jenkins, in March, 1831, filed a bill in the nature of a supplemental bill and bill of review, setting forth the proceedings which had taken place in the several suits before mentioned, and alleging various errors in the accounts which had been stated at the time of the giving of the mortgages, which errors were not discovered until after the decrees had been entered in the mortgage suits. And praying, among other things, that the decrees of foreclosure in those suits might be opened and reviewed ; that certain judgments recovered against J. Wilde and John F. and Seth Jenkins, by G. W. Seaman and L. Reed and D. Lee, might be paid out of the partnership funds in the hands of Wilde ; and that all errors which had occurred in the settlement or statement of accounts, which had been made at the time of giving the mortgages, might be rectified in the taking of the accounts before the master. To this last mentioned bill J. Wilde, G. W. Seaman and Reed and Lee were made parties defendants. Pending the proceedings on the reference, and with a view to obtain a suspension of the proceedings in the foreclosure suits, Seth and J. F. Jenkins in their individual capacity, and as corporators, stockholders and owners of stock in the Columbia Manufacturing Society, mortgaged to J. Wilde all their rights titles and interests, joint or several, or as partners with Wilde, or as stockholders, owners of stock, or corporators in the C. M. Society, to the property on both sides of the creek, including the machinery, furniture, tools and fixtures, belonging to the manufacturing establishments, to secure the payment of the amount of principal, interest and costs due on the mortgages upon the property on the south side of the creek, and the several bills of costs which had been ordered to be paid by them in certain proceedings in the several suits above mentioned, or some of them, and all balances which might be found due to J. Wilde from S. & J. F. Jenkins, or either of them, on the copartnership accounts,, after deducting the balance, if any, which might be found due to S. & J. F. Jenkins from J. Wilde, on the accounting, and by the final decree in the suit for the settlement-of the copartnership concerns. After the filing of the bill of S. & J. F. Jenkins, in the nature of a supplemental bill and bill of review, an order by consent was entered that all proceedings on the reference to the master should be stayed until the coming in of the answer to J. Wilde to such bill. In August, 1831, and before the coming in of that answer, Seth Jenkins died, leaving Sarah Jenkins his widow, entitled to dower in bis real estate ; and his children, Theodore H., Sarah, Cornelia the wife of Robert H. Jenkins, John H., Gertrude, Cyrus, Robert, Walter, anti Lewis, his heirs at law. The several suits were after-wards revived by original bills in the nature of bills of revivor and supplement, against the children and heirs of Seth Jenkins ; to which bills Sarah Jenkins, the widow, was made an original party in respect to her right of dower in the premises; she not having been a party to the original suit for partition, or to any of the suits except that for the foreclosure of the mortgage executed by herself and husband, on his undivided fourth part of the premises on the south side of the creek. And T. H. Jenkins and D. B. Tallmadge having subsequently administered on the estate of Seth Jenkins, they were afterwards made parties to the proceedings by supplemental bill. In May, 1832, orders were entered for the revival of the proceedings in the several suits, saving and reserving to the widow and infant heirs of Seth Jenkins all their rights, subject to the further order of the court in the premises. J. Wilde having put in his answer to the bill filed by S. & J. F. Jenkins, in the nature of a supplemental bill and bill of review, a replication to such answer was filed by J. F. Jenkins and by the guardian of the widow and infant children of Seth Jenkins ; and by a stipulation between the parties, it was agreed that all the testimony and documentary evidence which had been taken or produced by either party, before the abatement of the original suits, should be used in the suits as revived. J. Wilde thereupon proceeded in the reference before the master, although such proceedings were objected to by the counsel for the other parties. And he procured the master’s report, stating an account between James Wilde on the one part and J. F. Jenkins and the widow and children of Seth Jenkins on the other, by which it appeared that there was a balance due to Wilde, including a computation of interest on the several items, of |‘3215,10, on tbe first of July, 1833. But in this computation, no part of the mortgages, originally given to Wilde upon the property on the south side of the creek, was included. The several suits, as revived, were finally brought to a hearing upon the pleadings and proofs, and upon the master’s report.

      August 5.

      S. Stevens &' C. Bushnell, for J. Wilde.

      I. Williams, for J. F. Jenkins, and for the widow and children and administrators of Seth Jenkins, deceased.
   The Chancellor.

For the purpose of understanding the complicated proceedings in this case, and the questions to be decided, it is necessary to go into an examination of the transactions between J. Wilde and S. & J. F. Jenkins, so far as they can be understood from the pleadings and proofs before me, somewhat at length. The Columbia Manufacturing Society was incorporated in February, 1809, for the purpose of manufacturing cotton and wool. (See Priv. Laws of 1809, p. 49.) And, by the act of February, 1812, the village of Columbiaville was organized, and certain municipal powers in relation to the same were given to the trustees of the C. M. Society. (Laws of 1812, ch. 9.) S. & J. F. Jenkins were original stockholders of the company and continued to he such stockholders until the purchase of the corporation and the corporate property, by J. Wilde and themselves, as co-partners, as hereafter mentioned. Soon after the incorporation of the company, it had acquired title to a mill scite and manufacturing establishment on the north side of Major Abraham’s creek, in the country of Columbia, and the manufactory was managed and carried on by the society, by its agents, R Jenkins, Seth Jenkins and J. F. Jenkins, who Were copartners, under the name or firm of Robert Jenkins St Co. and who received a salary of $1500 a year from the society. In September, 1819, the C. M. Society entered into a contract with J. Wilde, a manufacturer, to carry on the establishment at Columbiaville for the term of five years from the second of the ensuing month of November. By this contract, the society was to furnish the stock, and Wilde was to manufacture it at certain stipulated prices, and to deliver the cloth and yam to the agents of the society at the factory. By a sub-contract between Wilde and Robert Jenkins & Co., which firm, after the death of Robert Jenkins, consisted of Seth and John F. Jenkins only, it was agreed that Robert Jenkins & Co. should have two thirds of the profits which should be made by Wilde under his contract with the C. M. Society, and that he should receive one third of the salary which they were receiving as agents of the society. In June, 1822, Wilde purchased the mills and mill scite on the south side of the creek, directly opposite the factory of the C. M. Society, for the price of $7625, which he subsequently paid for out of his own funds, to Stanley from whom he purchased, including a mortgage thereon of $5000 to the Mechanics’ Bank in the city of New-York. About the time of this purchase, it was agreed between J. Wilde and Seth and John F. Jenkins, constituting the firm of Robert Jenkins & Co. that they should have one half of the property on the south side of the creek at cost; and that Wilde should relinquish his claim to one third of their salary as agents of the C. M. Society, and should receive one half of the profits under his contract with the society. And that the business on both sides of the creek should thereafter be carried on by them as partners. A statement of their accounts was then made, up to the 2d of November, 1822. In May, 1825, Seth Jenkins removed from Hudson to Columbiaville, and the parties commenced mercantile business there, in a store, from which time their business was carried on under the name of James Wilde & Co. In the spring of 1826, the C. M. Society offered all its property, including the charter of the company, for sale. And James Wilde & Co. became the purchasers, at the sum of $23,000, including a judgment of about $10,000 in favor of Hicks, Lawrence & Co. which was a lien upon the property; of which judgment the purchasers assumed the payment. The residue of the purchase money was to be paid to the stockholders of the society in proportion to their stock, in three annual instalments, with interest at the rate of six per centum. The title of the property and the stock, or charter of the company, was to be transferred to the purchasers, upon the receipt of the last payment; and in case of a neglect to comply with the terms of sale, the previous payments of the purchasers were to become forfeited to the society. After this purchase, James Wilde & Co. took possession of the property on the north side of the creek, and made great improvements thereon in buildings and machinery; and they paid the interest on the judgment of Hicks, Lawrence & Co. and the two first instalments of the purchase money to the former owners of the stock, out of the profits of the partnership business. The municipal powers of the corporation were carried on by Wilde and S. & J. F. Jenkins, who were from time to time elected the trustees of the C. M. Society. But the accounts of the"business of the factories on both sides of the creek were kept in the name of James Wilde & Co., and in the same books. During the continuance of the copartnership of James Wilde & Co., the partners became the purchasers of a lot on the north side of the creek, contiguous to the property of the C. M. Society; which lot was conveyed to them as tenants in common, and was paid for out of the partnership funds. About the 1st of June, 1827, Wilde became dissatisfied, and proposed a dissolution of the partnership, and a division and settlement of the partnership concerns. Seth and J. F. Jenkins urged a continuance thereof until the C. M. Society factory could be supplied with new and approved machinery, to be constructed under the superintendence of Wilde ; but consented to settle the partnership accounts and to execute written articles of copartnership. And it was agreed that Wilde should convey to each of them an undivided fourth part of the property on the south side of the creek, and that they should execute mortgages to him upon their several shares thus conveyed, for the balance which might be found due from them, respectively, on such settlement. On the 12th of June, 1.827, partnership articles were entered into by the parties, by which the continuance of the partnership was limited to two years from the first of that month. And it was specified in the articles that J. Wilde was the owner of one half, and each of the other parties of one fourth of the partnership property and effects, including the stock of the C. M. Society; and that the profits and losses of the copartnership should be shared or borne in those proportions. A stipulation was also inserted relative to the division of the merchandise, manufactured articles, stock on hand, book debts and other loose property and effects of the concern on the dissolution of the copartnership. A statement of the accounts was thereupon made, and entered upon the books of the copartnership, from which it appeared that there was due to Wilde from S. Jenkins, $4769,45, and from J. F. Jenkins, $3881,37. For the security of. these sums, S. & J. F. Jenkins, with their wives, executed mortgages upon their respective shares of the property on the south side of the creek, which was conveyed to them by J. Wilde; which mortgages were payable in two years, with interest. And the principal object of their supplemental bill and bill of review was to correct various errors, which S. & J. F. Jenkins alleged to have occurred in the statement of the accounts at that time, and to reduce the amount for which those mortgages were given.

The first question presented in the case is as to the nature of the interest of the several partners in the C. M. Society property, on the north side of the creek; Wilde, in his cross bill to the original bill for partition, insisting that the Columbia Manufacturing Society was dissolved by the sale of its property and effects in 1826, and that he was entitled to a partition of the equitable interest of the copartnership in the same as real estate, subject to the mortgage thereon to Hicks, Lawrence & Co., and to the lien of the original stockholders for the unpaid purchase money. Upon examining the testimony in the cause as to the acts of the parties, in connection with the written articles of copartnership entered into, in 1827, it is evident that it was the intention of both parties, at the time of the purchase of the property of the C. M. Society, that the charter of the company with its capital stock should be purchased, so that the property and effects of the society might be managed and carried on by the purchasers as corporate property, under the act of incorporation. The real estate, therefore, belonged to the incorporation as such, and could only be conveyed by the proper officers of the corporation, under its corporate seal. But the stock of the society, or the equitable interest therein, belonged to the copartnership, under their contract of purchase, subject to the lien of the other stockholders for the unpaid purchase money. And, in the statement of the partnership accounts, each party should be credited with the amount due for his shares of the original stock, in proportion to the number of shares held by him at the time of the purchase, or with so much thereof as has not been already credited. The interest of Beth Jenkins in this part of the partnership effects being by the charter declared to be personal property, it goes to his personal representatives, subject to the equitable claims of the other copartners thereon; and it must be first applied to pay any balance which may be due to Wilde upon the settlement of the partnership accounts;, exclusive of what is due upon the mortgages which are a special lien upon the property on the south side of the creek. All the property and effects of the C. M. Society, including the stock and the right to manage the property and to exercise the municipal powers relative to the village of Columbia-ville under the charter, must therefore be immediately sold by a master, upon a six weeks notice, to be published in a paper in each- of the cities of New-York and Hudson, and in the state paper. Wilde and John F. Jenkins and the personal representatives of Seth Jenkins must join with the master in a transfer of all their interest in the stock of the company and in the property and effects thereof to the purchaser, in such manner as the master shall direct. And out of the proceeds of such sale the master must pay to such of the other stockholders as have an interest in the stock on account of the last instalment upon the original purchase in 1826, the amount due to them on that account, after paying to Hicks, Lawrence & Co. or their assignees the amount due on their judgment; upon such stockholders executing’ to the purchaser at the master’s sale transfers of their respective interests in the stock of the company, in such form as the master may direct. If any one or more of such original stockholders shall refuse to receive the balance so due to him or them for such last instalment, with interest, then and in that case the master is to refund to the purchaser on the master’s sale the amount thus due to the stockholders refusing to make such transfer. And subject to these directions the sale is to be in every respect at the risk of the purchaser as to the right or interest which he may acquire under the sale. Immediately upon the payment of the purchase money on the sale, the purchaser is to be let into possession of, and to be entitled to all the corporate property, funds and effects, wherever situated. He may apply to the court from time to time, as may be necessary to compel the several parties to these proceedings, and all others who have come into possession under them, pendente lite, or who have received from them any part of the property or effects of the society, to deliver possession thereof. And the several parties to these proceedings, as well before as after the sale, are to be enjoined from doing any act, either as stockholders or trustees of the C. M. Society, or otherwise, by which the interest of the person who may have become the purchaser at such sale may be in any way prejudiced, or impaired. The balance of the purchase money the master must bring into court, or deposit with the New-York Life Insurance and Trust Company, in the name of the assistant register, upon interest, to abide the further order of the court.

The several parties interested in the property on the south side of the creek, and in the Van Rensselaer lot on the north side, are entitled to have a partition thereof; for which purpose it is evident a sale will be necessary. Their several interests therein are- therefore declared to be as follows: James Wilde is entitled to one equal undivided moiety or half part thereof, and to one half of the rents and profits since the dissolution of the partnership of James, Wilde & Co., on the first of June, 1839. John F. Jenkins is entitled to one undivided fourth part thereof, subject to the specific lien of the mortgage executed by himself and wife to Wilde, in 1837, and the costs of the foreclosure suit upon the premises on the south side; and lie is entitled also to one fourth of the rents and profits thereof, for the same period, subject to the specific lien of the mortgage. The children of Seth Jenkins are also entitled each to one ninth of one fourth thereof, subject to the specific lien of the mortgage executed by Seth Jenkins and his wife to Wilde in 18S7, and the costs of the suit for the foreclosure of the same, upon the premises on the south side of the creek; and also subject to their mother’s right of dower in both parcels. And each of such children is also entitled to one ninth, of two thirds, of one fourth, of the rents and profits since the death of Seth Jenkins, subject to the specific lien of the mortgage. The widow is entitled to dower in the premises, subject to the specific lien of the mortgage in which she joined with her husband, in 1887; and she is entitled to one third of one fourth of the rents and profits from the death of her husband. The personal representatives of Beth Jenkins are entitled to the rents and profits of one fourth of the premises from the dissolution of the partnership in June, 1829, to the death of Seth Jenkins, in August, 1831. The several shares of John F„ Jenkins and of the children of Betli Jenkins are also subject to the specific lien of the mortgage executed to Wilde, by Seth and John F. Jenkins, in December, 1830, by way of security.

The 38d section of the title of the revised statutes relative to the partition of land, (2 R. S. 321,) requires the complainant or petitioner to exhibit proof of his title, and an abstract of the conveyances by which the same is held, if any of the defendants, whether known or unknown, make default. These bills of revivor and supplement are in the nature of original bills, only so far as the interests of the widow of Seth Jenkins are concerned; but as to the interests of the children of Seth Jenkins, as his heirs at law, and the interests of the personal representatives of the decedent, they are bills ofrevivor merely. It is not necessary, therefore, that there should be any reference as to the title of the heirs at law who have made default, as that sufficiently appears from the bill filed by their father, from whom their title is derived. The only reference which is necessary before an order for the sale of the premises of which partition is sought can be made, is a reference under the forty-second section of this title, as amended in April, 1830, (3 R. S. App. 155,) as to general liens or encumbrances on the un» divided interest or share of any of the tenants in common, in favor 0f persons who are not parties to the suit. As the effect of a sale in partition is to divest the holders of such liens of all claim upon the estate itself, such a reference cannot be dispensed with in any case. It must therefore be referred to a master in the county of Columbia, to ascertain and report whether there are any such liens; and upon the coming in and confirmation of his report, either party may apply to the court, upon any regular motion day thereafter, without further notice, for an order for the sale of the premises on the south side of the creek and the Van Rensselaer lot on the north side, with the machinery and fixtures belonging thereto and held in common.

The object of the supplemental bill and bill of review, filed by Seth and John F. Jenkins against James Wilde and others, was to open and review the decrees of foreclosure and sale in the mortgage suits; to open the settlement or stated account of the the partnership transactions made in June, 1827, for the purpose of correcting various alleged errors in the statement of the account, for the balances on which settlement the mortgages were given ; and to bring forward a claim against Wilde in favor of Seth and John F. Jenkins, as survivors of Robert Jenkins, for one half of the alleged loss upon the notes of Wm. Mayrant, taken by them upon the settlement of a former partnership concern between them and Robert Jenkins, in November, 1815. In relation to this last mentioned claim, Seth and John F. Jenkins alleged, in their bill, that upon the settlement in November, 1815, Wilde agreed that if the Mayrant notes should not be paid, he was to be responsible to Robert Jenkins & Co. for the one half thereof; and they produce a written memorandum to that effect at the foot of the account then stated, and above the names of R. Jenkins & Co. and James Wilde which are subscribed thereto, the latter in the hand writing of Wilde. By the answer of Wilde, he denied that he ever agreed to be responsible for any loss upon the Mayrant notes. He says the business of the copartnership was carried on in the name of J. Wilde only, and that these notes were taken for partnership property sold to Mayrant, and the notes were therefore taken in his name. That upon the settlement and division of the partnership concerns and effects, these notes were taken by Robert Jenkins & Co. towards their shares, and that he endorsed the same for the mere purpose of transferring the interest of the partnership in the notes to them, without any expectation that he was to be holden for any thing upon such endorsement. And he swears, in his answer, that the memorandum at the foot of the account was not there at the time he subscribed his name to the account, but that it has been interpolated since. He also produced, in support of his answer, a release signed by Robert Jenkins & Co. at the time of the settlement in 1815, in which they discharge him from all claims and demands whatsoever up to that date, except the balance due from him on a note executed by him to them, which has since been paid. I am relieved from the unpleasant necessity of determining between these parties whether there has been a forgery on the one hand or perjury on the other; having arrived at the conclusion that if Wilde did at the time of the settlement agree to guaranty the payment of the notes, and to be liable for half the loss if they were not collected, he has long since been discharged by the acts of the other parties, if the amount has not in fact been collected by them. The only evidence which is relied upon to prove that the notes of Mayrant have not been collected, is the deposition of S. D. Miller, a lawyer in the state of South Carolina where Mayrant resided. He states that in November, 1822, he recovered a judgment against Win. Mayrant upon a note given by him to John F. Jenkins, for the sum of $4116,64, dated the 4th of January, 1821, payable in twelve months from the date with interest. This judgment was afterwards revived by scire facias, $1000 having been previously paid thereon; and 200 was afterwards received by Miller, the attorney, from Mayrant, which he applied towards the costs of the suit and counsel fees. After the revival of the judgment, an execution was issued thereon. Miller left the bar in 1828, and directed the plaintiff to correspond with the sheriff in relation to the execution; since which time the witness knows nothing of the case, and of course cannot tell whether the demand has since been collected. This evidence is wholly insufficient to raise even a presumption that the original notes given by Mayrant to Wilde in 1815, and transferred to Robert Jenkins & Co. were not collectable at the time they fell due, in 1816 and 1817, or that they have not been collected. The fact that John F. Jenkins held a note against Mayrant for about $4000, given in 1821, is not sufficient to authorize the court to presume it was given for the original debt which belonged to Seth and John F. Jenkins, as the survivors of Robert Jenkins who died in 1819. And a return of the execution unsatisfied, or some other legal evidence, was necessary to show that the whole amount of the judgment recovered on that note was not collected by the sheriff. Again; if the fact was established that the note referred to in Miller’s testimony was given for the original debt transferred to Robert Jenkins & Co. upon the settlement in 1815, as Wilde stood in the situation of a surety merely as to that part of the debt of which he had guarantied the payment by Mayrant, the giving time to the latter, for twelve months, as was done in the note referred to in the deposition of Miller, was a discharge of the liability of Wilde as such surety.

In the supplemental bill and bill of review filed by Seth and John F. Jenkins, they allege that the books of account of H. & S., kept by J. Wilde from 1819 to 1825, were partnership books, and not the private accounts of J. Wilde with the partnership and others. And upon this allegation most of the supposed errors in the stating of the accounts, in 1827, are based. The answer of Wilde, which in this respect is responsive to the bill, positively denies that these were partnership books any farther than they might have been rendered so by his keeping his own accounts with the partnership on those books. I think, also, there is inherent evidence, upon the face of the books themselves, to show that his answer in this respect must be correct.

The charge that the property on the south side of the creek was bought and paid for by Wilde with the partnership funds, is not sustained. The allegation in the bill is positively denied by his answer; which in this respect is uncontradicted. At the time of the original purchase, he had no partnership funds in his hands out of which the first payment could be made. And the $5000 mortgage upon the premises, which constituted much the largest share of the purchase money, was not paid until after the commencement of the present controversy. The statement of the accounts at the time of the giving of the mortgages in 1827, appears by the books to have been carefully and deliberately made; and Seth and John F. Jenkins, in their answer to the cross bill filed by Wilde, admit that they agreed at that time that there should be a settlement of the partnership accounts. And they say further, that on the 18th of June, 1827, the accounts of James Wilde & Co., and all other notes and accounts between the parties, either individually or by the same of Robert Jenkins & Co. or otherwise, were settled; and a balance was found due from Seth Jenkins to Wilde of $4769,45, and from John F. Jenkins to Wilde of $8881,87, for which sums they respectively gave their bonds and mortgages to Wilde. I am also satisfied from the examination of the books, and from the other evidence in the case, that both parties then understood if. to be a full and final adjustment of the partnership concerns up to that time. It must therefore require very strong and conclusive evidence of error or mistake, to induce the court to open the accounts or go back beyond the adjustment thereof in June, 1827. The modes of keeping accounts are so various that it is difficult for third persons to understand them, in many cases, with all the lights which the evidence in a cause can throw upon recent transactions. The practice of opening accounts, therefore, which the parties who could best understand them have themselves adjusted, is not to be encouraged. And it should never be done upon a mere allegation of errors, supported by doubtful, or even by probable testimony only; especially where the parties to the settlement stood upon terms of perfect equality, so that there could be no pretence of fraud or imposition practised by one party upon another. In the language of a distinguished judge, “ The whole labor of proof lies upon the party objecting to the account ; and errors which he does not plainly establish cannot be supposed to exist.”

The first specific error which is charged in the supplemental bill and bill of review is a loan made by Wilde to Robert Jenkins & Co. of $6628,02, out of the partnership funds, and which was allowed to him in the settlement as a loan from himself. This Supposed error is fully accounted for or explained in the answer of Wilde; and it is very evident there was no foundation whatever for this charge in the bill. I am inclined to think a slight error occurred in relation to the stock of cotton, in consequence of carrying an error which had occurred upon the books previous to the change of interest in the partnership in 1822 into the accounts of the new concern, by which Wilde was charged with one half of that stock, when he would only have been accountable for one third if it had been carried into the accounts before the settlement and deducted from the supposed amount of profits at the time of the settlement. This? however, if it was an error, was one by which Wilde alone was prejudiced, and he does not ask to have it corrected. There was no error as to the tools, iron or lumber, or as to the charge of $5 for procuring the title to the property on the south side of the river. The difference in the first, arising from the change of the interests of the parties, was compensated by the stretching frame; and if $5 were paid out of the company funds for procuring the title, which however is denied, it appears to have been proper, as that property was to be taken by the partnership at cost. That necessarily included the expense of procuring the title from the former owner. There was no error in the settlement as to the store account previous to the charge of interest in 1822, as Wilde alone was interested in the store at that time. The alleged error as to the payment of Wilde, in November, 1822, of a balance due from the agents of the C. M. Society to the co-partnership is denied by the answer, and is not sustained by proof. Indeed it is evident, from the manner in which the books were kept previous to that time, that the balance due from the agents of the C. M. Society belonged to Wilde individually ; and the alleged error as to the blacksmithing is denied by the answer and is wholly unsustained by the proofs. The manner of transferring the Columbia mill account from leger I, and the cloth account, in connection with the account of it. Jenkins & Co. appears to have been correct; and the store account was one in which Wilde alone was interested, as has been already observed. The credit to Wilde for interest must have been allowed by the parties, understandingly, at the time of the settlement; and there appears to be no reason to doubt that he was equitably entitled to it on account of bis advances for the benefit of the copartnership, and in the purchase of the property on the south side of the creek. There Is no foundation for the claim for the balance of Wilde’s private cash account on leger I, or for charging him for the money paid by J. F. Jenkins, on the mortgage to the Mechanics’ Bank, for which he settled with J. F. Jenkins and paid him in full. Neither was the loan to Seth Jenkins, in 1821, made by Wilde out of partnership funds, as charged in the bill of review. The errors which Seth and John F. Jenkins allege to have occurred against Wilde, in the settlement of 1827, and against which he protests, cannot of course be allowed in his favor, when he swears that no such errors occurred. The credit of interest which was made to Wilde at the time of the settlement, and which must have been allowed upon a consultation as to what was equitable and right in relation to his advances, cannot of course be inquired into at this time. The private accounts of Seth Jenkins and John F. Jenkins, respectively, against the firm, subsequent to the settlement in 1827, would of course be allowed on the taking of the accounts upon the reference by consent, and no new bill was necessary to bring those claims properly before the court. After a careful investigation of the accounts and of the testimony in this cause, I am obliged to declare that not one of the alleged errors, in the settlement of 1827, which are charged in the supplemental bill and bill of review filed by Seth Jenkins and John F. Jenkins, is sustained by the proofs. That bill was therefore improperly filed, and it must be dismissed, with costs to be paid by John F. Jenkins the surviving complainant •therein, and by the representatives of Seth Jenkins out of the ■estate of the decedent, if any, in their hands to be administered, and to be paid by them in a due course of administration. The sale of the shares of the premises on the south side of the creek, covered by the several mortgages, must be postponed until the sale can be made under the proceedings in the suit for partition, when the whole property must be sold together ■ under the decree in partition and under the two decrees of foreclosure. And the master who makes the sale must, out of one fourth of the proceeds, pay to Wilde the amount due upon the mortgage executed by Seth Jenkins and wife, with the interest thereon, and pay to bis solicitor the costs of the foreclosure suit; and the residue of that fourth must be brought into court for the benefit of the widow and children, subject to such liens as may exist thereon in favor of other parties, for costs or otherwise, and to abide the further order of the court. Out of another quarter-of the proceeds the master is to pay to Wilde the amount due on the mortgage executed by John F. Jenkins and .wife, with interest, and to his solicitor the costs of the foreclosure suit, and to bring the residue into court for the benefit of John F. Jenkins, subject to such liens as may exist thereon for costs or otherwise, and to abide the further order of the court. The residue of the purchase. money, or the proceeds of the other moiety of the property, must be paid to J. Wilde, who is to be ■ charged with the widow’s share of the rents' and profits of that property, from the time of the death of her husband until, the day of sale, to be ascertained as hereafter directed; and when so ascertained, he must pay the amount into court for her benefit. The proceeds of the sale of the Van Rensselaer lot, when sold, must also be brought into court by the master, to be distributed according to the rights of the parties, as herein before declared, subject to the liens which may exist against any of the shares for rents and profits, costs, or otherwise.

The master having stated the whole accounts together, it will be necessary that there should be a re-statement thereof, and that separate accounts should be stated, according to the interests of the several parties since the death of Seth Jenkins ; and the accounts must be brought down to the time of the sale of the several parcels of property respectively. But no new evidence is to be introduced before the master as to the accounts, or the rents and profits of the property, before the death of Seth Jenkins. In re-stating the accounts, the master is to compute interest, as in schedule A, annexed to his former report, down to the time of the death of Seth Jenkins; and must state the balance, as then due, in an account between J. Wilde on the one side and Seth and John F. Jenkins on the other, computing the interest up to the time of the date of such new report. In stating the accounts subsequent to the death of Seth Jenkins, the master must state one account, between Wilde on the one part and JohnF. Jenkins on the other, in which Wilde is to be charged with the rents and profits on J.F. Jenkins’ share of the property on the south side of the creek, and to be credited with the one half of the rents and profits of the Van Rensselaer lot and the C. M. Society Factory, occupied by John F. Jenkins; and such other items as may be proper in relation to their respective interests in the property occupied by each other. He is also to state another account, between Wilde and the widow of Seth Jenkins, in which Wilde is to be charged with the rents and profits of her dower right in her husband’s undivided fourth part of the property on the south side of the creek, subject to all just allowances for taxes or otherwise. And the master is in like manner to state an account, between Wilde on the one side and the several children of Seth Jenkins jointly on the other, in relation to the rents and profits of the other two thirds of their father’s share of the property on the south side of the creek. And the master is also to state accounts between the widow and J. F. Jenkins in relation to the rents and profits of her dower right in the Van Rensselaer lot, and between the children of Seth Jenkins and him in relation to the rents and profits of their interest as heirs at law of their father in the same lot. The master, in stating all such separate accounts, is to allow interest as may be just and equitable; and all such accounts are to be continued down to the time of the sale of the property. And upon the coming in and confirmation of the master’s report, and the reports of the master who makes the several sales which are or may be directed in this case, any of the parties interested in the proceedings may apply to the court, upon due notice to the other-parties interested, for such further directions as may be necessary for the distribution of the funds which may be brought into court, and for the apportionment of costs between the parties as may be just.

The master who states the accounts is also to be directed, if requested either by John F. Jenkins or the personal representatives of Seth Jenkins, -and at the expense in the first instance of the party requesting the same, to state an account between themselves in relation to the partnership concerns and the use of the C. M. Society Factory since the death of Seth Jenkins, and to make a separate report thereof; to the end that upon the coming in and confirmation of the said separate report, such further decree may be made as between those parties as may be just. But the proceedings on that part of the reference is not to delay the general report of the master as to the other accounts which he is directed to state.

As against the widow of Seth Jenkins, who was not made a party to .the original bill for partition, or to the cross bill of Wilde, the bill of revivor and supplement to which she was made a party is strictly an original bill. In the apportionment of costs, therefore, which is hereafter to be made, her dower interest is not to be charged with any portion of the costs which had accrued previous to the death of her husband ; nor is she to be charged with any portion of the costs of the former proceedings before the master, under the reference by consent, to which she was neither a party or privy. And as one bill of revivor and supplement only was necessary to revive the proceedings in the partition suit, the cross suit, and the bill in the nature of a supplemental bill and bill of review, the solicitor of Wilde is not to recover costs for more than one of those bills. But the supplemental bill to bring in the personal representatives of Seth Jenkins, who had not taken out letters of administration at the time of filing the original bill in the nature of a bill of revivor and supplement, appears to have been necessary.


text:
    Talcott vs. Bronson & Bronson.
    Where an order had been obtained for the payment by the defendants of the costs of exceptions to their answer, to the complainant’s solicitor, who subsequently gave notice to them that he claimed a lien for his costs in the suit, and that they must not settle with the complainant for the same; and they afterwards settled with the complainant and secured to him the amount claimed, each party agreeing to bear one half of the costs of both parties to the suit; Held, that the solicitor of the complainant had a lien upon the taxed costs on the exceptions; but that he had no lien, as against the defendants, for the general costs of the suit, which had never been decreed against them.
    Where the parties to a suit make a collusive settlement thereof, before a decree, for the purpose of defrauding the solicitor of his costs, his remedy is to proceed with the suit, in the name of his client, notwithstanding the collusive settlement.
    This was an application on the part of the solicitor for the complainant, to compel the defendants to pay him the amount of several bills of costs in this suit. Exceptions were taken to the separate answers of the defendants, and allowed by the master. And, in March, 1819, upon the petition of the complainant, the chancellor made an order that the defendants put in further answers to the bill in three weeks ; and that they should also pay the costs of that application and the costs upon the exceptions. Further answers were afterwards put in, but the costs were not paid. In October, 1819, the complainant’s solicitor caused written notices to be served on the defendants, respectively, that he claimed alien for his costs, and that they must not pay to or settle with the complainant for the same. The parties subsequently entered into a written agreement to settle the suit, the defendants securing to the complainant the 'amount in controversy, and each party agreed to pay one half of the taxable costs of both parties in the suit. In February, 1820, the costs of the exceptions to the answer of D. Bronson were taxed at $39,15, and the costs of the exceptions to the answer of the other defendant at $52,36; and the costs of the application for a further answer at $15,25. In March, 1820, the complainant’s solicitor made out his general costs in the suit, which were taxed at $109,18, exclusive of the costs on the exceptions, and of the application for a further answer; and he thereupon caused copies of the several bills of costs to be served on the defendants, and payment thereof to be demanded, but the costs were not paid.

      August 5.

      I. Hamilton, for the complainant.

      Jl. Hockley, for the defendants.
   The Chancellor.

The defendants in this case have no right to complain of the delay of the complainant’s solicitor; as he served them with a copy of the costs and of the order for their payment, and demanded the payment thereof, very soon after the discontinuance of the suit. If they have neglected to pay these costs and to look to the complainant for an equitable contribution, under the agreement entered into upon the settlement, until he has become insolvent, it is their own fault. The solicitor of the complainant had obtained a final order of the court previous to the settlement, entitling him to the costs of the. exceptions and the costs of the application for a further answer; and the defendants had notice that he should look to them for such costs by virtue of his general lien. And there is no pretence that the defendants hpxl any counter claim, or other equity, which could interfere with the solicitor’s lien for such costs. The settlement, therefore, could not deprive the solicitor of his remedy against the defendants for the recovery of those costs.

The general costs of the cause, however, depend upon a different principle. At the time of the settlement, the suit was undetermined, and it was not certain that the complainant would obtain a decree against the defendants ; and even if he succeeded, it did not follow that he would recover costs. Under such circumstance, the solicitor had not such a lien upon the subject matter of tile litigation as to prevent the adverse party from compromising the suit with his client without the consent of such solicitor. It is not alleged in the affidavit of the solicitor that the settlement between the parties was collusive merely, and with a view to deprive him of his costs. Indeed I should infer from the affidavit of the solicitor that his client was then perfectly responsible, and that he has become insolvent since the settlement. But even if there was collusion, that would not entitle him to an order for the defendants to pay to him costs which had not been decreed to be paid by them; and which perhaps might not have been charged upon them if the complainant had gone on with his suit. The proper course for the solicitor, where there is a collusive settlement between the parties for the purpose of defrauding him of his costs before any decree or judgment for costs has been obtained, is to proceed with the suit, in the name of his client, notwithstanding the collusive settlement. (Swain v. Senate, 5 Bos. & Pul. Rep. 99.)

The solicitor for the complainant must be permitted to take out a precept against the defendants, to commit them to prison until the costs of the exceptions and of the application for a further answer, together with the costs of this application, are paid. Each defendant, however, is lible for the costs of the exception to his own answer only; and the precept must be framed accordingly. As to the general costs of the cause, the solicitor must look to his own client for the payment thereof.